However, the court found that the two presented themselves as a married couple, with the woman having even assumed his name as a surname.
Justice Odero said this could not have been some passing love escapade. "The period of cohabitation being seven years, in my view, leads to a presumption of marriage. This was not a fleeting love affair. The appellant admits that he went to introduce himself to the family of the respondent in Naivasha," said Justice Odero.
The battle between the man codenamed BKG and the woman codenamed NWT started at the magistrate's court, which agreed with the woman that they were married.
Aggrieved, the man appealed the verdict before the High Court leading to the latest ruling.
The two met in 2005 eventually leading to seven years of living together.
Before the lower court, BKG argued that he never married NWT as he discovered that she was married to another man. He, however, admitted that he met and loved the mother of five and went to her family to express his intention to marry her in 2009.
According to BKG, the revelation that she was married to another man hurt him and he terminated the relationship. He said he felt cheated.
The court heard that the two never got a child together.
On the other hand, NWT told the court that she got married to BKG in 2009 under the Kikuyu customary law. She narrated that they lived together in Ongata Rongai for seven years.
She called three witnesses to support her case.
Among the witnesses was her brother who told the court that BKG had come to his rural home to seek NWT's hand in marriage. However, the family declined to receive any dowry from him until after the dowry paid to the first husband was refunded.
According to NWT's brother, BKG gave out Sh35,000 to refund the dowry and which was sent to the first husband's family to release her for a new marriage.
The other witness was her uncle who said the marriage between NWT and her first husband was dissolved after the refund of the dowry.
Justice Odero observed that she was eligible to marry BKG.
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The judge, however, found that although NWT and the witnesses had claimed that BKG paid Sh390,000 and 130 goats as dowry, they never stated whether ngurario (betrothal ceremony) was ever conducted.
Ngurario is central in Kikuyu customary marriage.
"All in all, I find that the evidence relating to the existence of a customary marriage is sketchy. The witness stated that the appellant was expected to return after the first visit to Naivasha but he never returned.
"His failure to return means that the Kikuyu marital rites were not concluded. All in all, I am not persuaded that all the rites for a Kikuyu customary marriage were conducted," Justice Odero observed.
In the case, the man said he signed separation papers while sick because he wanted to be left in peace.
Following the testimony, the judge observed that this was an admission of marriage.
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