Couples do not need to go through customary rites for their marriage to be recognised by the law, the High Court has declared.
Justice David Majanja ruled last week that all that was needed was proof that the man and woman had lived together for some time.
The judgement arose from a case in which Jonathan Gwako had been fighting his in-laws for one year to bury his wife.
“I find that there is no evidence of customary marriage. But the fact that there was no customary marriage between the deceased and the respondent does not preclude the court from finding that the parties cohabited for a period of time and conducted themselves in such a manner that a marriage could be presumed," Justice Majanja declared.
Mr Gwako and Lydiana Chepng’eno met in 2011 at the Prisons Department, where they both worked as wardens. But their romance faced one major hurdle: their employer did not allow single men and women to cohabit.
To get around the rule, the couple drafted a letter that they were husband and wife so that they could be allowed to move in together.
Three years later, they got their first son who was named after the man's father. And last year in May, Ms Chepng’eno named their second son after her father. She died one month later. The dispute started when her mother, Beatrice Chelugut, refused to recognise Gwako’s right to bury her daughter.
Ms Chelugut claimed that her daughter’s employment documents showed that she identified herself as unmarried.
“I would never have accepted my daughter to be married as I had asked her not to get married,” said Chelugut.
She called Richard Lang’at, a warder from the Kericho Prison, as a witness.
Mr Lang’at testified that although he knew the couple as his colleagues, he was certain they were not married and were not living together.
Chelugut also called a Kipsigis elder, Thomas Sigei, who testified that although the two were living together and had children, that was not recognised as a marriage.
“The deceased’s parents did not know she was married. No other persons, including the neighbours, were called to prove that she was married. The fact that Gwako and the deceased had children did not confer on their relationship the badge of a marriage,” Mr Sigei told the court.
In his reply, Gwako argued that he had lived with Chepng’eno for seven years, hence he had a right to give her the final send-off.
Justice Majanja agreed that Gwako had not conducted a traditional marriage ceremony, but pointed out that the agreement written by the two and the number of years they had lived together were enough for it to be presumed they were married.
The judge noted that it would have been impossible for Chepng’eno to name their first born son after her husband’s father if they were not together.
“The other evidence in favour of Gwako is the deceased’s own declaration that the respondent was her husband and in fact the respondent and the deceased each recognised and signified their commitment to each other as husband and wife,” the judge ruled.
Justice Majanja allowed Gwako to bury Chepng’eno. "It is my hope that the relatives can sit down with the respondents and agree to give the deceased a dignified and worthy burial," he said.