[2006] KEHC 2805 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT AT NAKURU

CIVIL APPEAL 215 OF 2002

JAMES NJUGUNA KANGIRI ………….................................…..……. APPELLA NT

VERSUS

MARY WANJIRU NJUGUNA ………................................…………... DEFENDANT

JUDGMENT

The appellant, James Njuguna Kangiri being dissatisfied with the judgment of Mrs. H. Wasilwa – S.R.M Nakuru Chief Magistrate’s Divorce Cause No. 2934 of 1998 which was delivered on 8th November 2002, as filed this appeal against the entire judgment.

He has raised several grounds of appeal which can be stated as follows: -

à That the learned Magistrate erred in law and fact in holding that there was marriage between the appellant and the respondent capable of being dissolved in the absence of evidence to that effect.

à That the learned trial Magistrate erred in law and fact in failing to find that the plaint did not disclose a matrimonial offence against the respondent to warrant the prayers sought.

à That the learned trial Magistrate erred in law and fact in failing to appreciate that the plaint was defective and ought to have been struck out for failing disclose a reasonable cause of action against the respondent.

à That the learned trial Magistrate erred in law and fact in failing to appreciate that no evidence was adduced to prove the allegations in the plaint.

à That the learned trial Magistrate erred in law and fact in writing and delivering a judgment in a suit that she neither heard nor saw the witnesses.

à That the trial Magistrate misdirected herself in writing a delivering judgment the subject of this appeal before hearing her and of the parties before her and observing their demeanor as required by law.

à That the judgment of the court was arrived at the considering wrong principles and should not be allowed to stand.

These grounds were further expounded during the hearing and Counsel for the appellant emphasized that there was no evidence upon which the lower court could have made a finding of a valid Kikuyu Customary marriage. The only evidence that was availed to the court was by the respondent who said that the appellant took Kshs.10, 000/- big sufurias to her parents to signify the payment of dowry.

He submitted that for a valid Kikuyu Customary marriage, the negotiations and ceremonies are conducted by the families, thus the respondent failed to call crucial witnesses. It was necessary for the respondent to call her parents or elders who were present during this occasion when the appellant is alleged to have paid the dowry because the appellant had denied the existence of a marriage in his defense.

Counsel for the appellant cited a decision by this court High Court at Nakuru Succession cause No. 48 of 2002[ In the matter of the estate of John Njoroge Macharia – deceased, ]

A judgment by Justice Musinga, where the court restated the five essential ceremonies that should lead to a valid Kikuyu Customary law marriage. These ceremonies are further restated in a book “Restatement of African Customary Law by Eugene Cot ran Vol. 2. Page 15. “

The other complaint raised by the appellant’s counsel was that the Magistrate made an error by making a finding that the marriage was irretrievably broken down because the appellant was living with another woman which is a contradiction because under the Kikuyu customary law, polygamy is allowed and a marriage of another wife does not constitute a matrimonial offence.

A further contradiction was said to be the failure by the lower court to consider that the respondent had failed to prove a case against the appellant because it is the respondent who was charged and convicted of an offence of assault against the appellant.

Due to the above errors and the fact that the Magistrate who wrote the judgment was not the one who heard the case, the appellant was prejudiced, in this regard, Counsel for the appellant put forward the authority in Civil Appeal No. 173 of 1999, Nyandundo Primary School and Others Vs Stephen Waweru.

Where the court of appeal held it was erroneous for the high court to proceed with the hearing of a matter from where the lower court had left it. Similarly in this matter the Magistrate should have started the case denovo.

This appeal was opposed by the respondent who urged this court to consider the appeal as a mere academic exercise lacking in merit because the outcome of the case in the lower court was a decree of divorce and an order granting the custody of children who are now of the age of majority to the respondent. Counsel for the respondent argued that the orders therein do not in any way prejudice the appellant who was not ordered to pay maintenance or even to share the matrimonial properties.

The other argument was that the appellant did not object to the Magistrate who took over the writing of this judgment which indeed is a common practice where a court continues to finalize a matter heard by another court of similar jurisdiction in civil matters.

On the issue of marriage, the respondent proved that there was capacity to marry; there was consent, and commencement of cohabitation whereby three children were born during these covertures. The circumstances between the parties clearly show that there was a marriage between the two parties, there were persistent quarrels and fights, and the respondent was provoked to burn the appellant. There was lack of communication that led to the broken down of cohabitation and parties separated from 1993.

The culmination of all that can be termed as irretrievably, broken down relationship, and thus the lower court was justified in finding a marriage and declaring a divorce.

I have carefully considered this appeal with an anxious mind. The Kikuyu Customary Law of marriage and the steps taken thereto are not static and like every other custom must have undergone tremendous change due to the exigences of modern day living. But one feature that has remained constant is that of the payment of dowry. I agree with Counsel for the respondent that the “Ngurario” ceremony or the Kikuyu wedding ceremony is a culmination of various ceremonies that may not take part in the beginning but can take part in the course of a relationship depending on whether the parties started their relationship by cohabitation which is a common trend in modern day. Lack of performance of this ceremony may not necessary lead to a finding if no marriage if other ingredients such as capacity, consent, payment of dowry and commencement of cohabitation are proved.

Take for instance a modern day couple who move in and start cohabiting in an urban setting, away from their rural home, they face the financial and other modern day challenges and therefore get children in their relationship. They are regarded by their neighbors and the community around them as married. They have probably undertaken one of the steps under the customary practices towards regularizing their relationship but they have not taken all the steps. Such a couple can be presumed to be married.

In the present case, it was necessary for the respondent to call independent evidence to support the allegations that the appellant delivered some items towards the payment of dowry. Therefore if the respondent had sought for a declaration to be presumed married, such an order would have issued. However the respondent claim was for dissolution of marriage. And the burden of prove was upon the respondent to prove the existence of marriage. The appellant denied the existence of a marriage. It was incumbent upon the respondent to call witnesses to prove that the appellant paid dowry. Since this was not done, am satisfied that there was no material before the lower court to lead to a finding of a marriage. I have also considered the argument by counsel for the respondent that the outcome of this appeal may be an exercise in futility since parties have gone different ways since 1993. I have a lot of sympathy for this argument but for whatever it is worth this appeal should be allowed.

Accordingly I allow this appeal and set aside the judgment appealed against. This being a matter arising from a domestic relationship, I order each party to bear their own costs.

Judgment read and signed on 24th March 2006.

MARTHA KOOME

JUDGE