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Children not proof of marriage, Nakuru judge decides

By Daniel Chege | September 9th 2021

The High Court has dealt a blow to a woman seeking to be recognised as the wife of a former Nakuru businessman, identified as BM.

Despite CW saying that she had a five-year relationship with BM (deceased) and even had five children, the court ruled that it was not enough proof of marriage.

Justice Joel Ngugi ruled that despite living together or bearing children, a man and woman must satisfy what constitutes a customary marriage before they are considered a married couple.

“Even though customary law is dynamic, there are certain formalities that must be undertaken to qualify a Kikuyu customary marriage,” said Ngugi.

Ngugi said a woman and a man must have the capacity to conduct marriage, consent from both families of the couple and a ceremonial slaughtering of a ram.

“Dowry must also be paid in full or in part before cohabitation,” he ruled.

Ngugi said the relationship between CW and BM could not be considered a marriage either through customary laws or by presumption.

“Whatever happened, cannot by any stretch of the imagination amount to a Kikuyu customary marriage,” he ruled.

CW and another woman LW were battling to inherit BM’s estate, which comprised three plots and a farm in Elburgon.

BM died intestate on October 10, 2008.

CW filed the case on March 31, 2010, seeking letters of administration of the estate. She claimed that she was one of BM’s widows.

She said she got married to BM in 1983 through a Kikuyu customary marriage, and their union was blessed with five children.

But according to CW, they separated after five years following domestic wrangles.

The court found that CW failed to give evidence to prove that the deceased paid dowry to her grandparents. She only proved that the BM visited her grandparents’ home.

She said although their marriage was not all rosy, the deceased took care of their children.

LW, a retired high school teacher, opposed the petition and denied knowing CW.

According to LW, she was the only wife of the deceased and got married to him in 1986. They solemnised their union in a Christian wedding on March 10, 1991.

Provided evidence

She provided evidence that the deceased paid a bride price of Sh20,000 to her parents and they had three children.

“I lived with my late husband at his home in Molo before we acquired a plot in Elburgon. Later, we bought two other plots in the same area,” she said.

She produced her pay slip of Sh36,000 per month to show that she contributed money used to buy the two properties.

“I contributed more than my husband because I was earning more than him,” she said.

The court, however, recognised three of CW’s children as beneficiaries after their birth documents were presented.

Justice Ngugi made LW and one of CW’s sons the joint administrators of the deceased’s estate.

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