High Court in Kisii upheld a lower court’s ruling ordering a woman to return dowry, including cows to her estranged husband.
Justice D.K.N. Magare delivered the judgment in CKN v DMO (Civil Appeal 21B of 2022), a case that arose from a contested divorce.
The court dismissed the wife’s appeal against an earlier decision that had required her to refund the bride price and denied her claims for child custody and spousal maintenance.
“The traditional marriage was cancelled by the return of dowry,” Justice Magare ruled. “Whether the same is returned by her or her father is irrelevant. She has two years to file an indemnity suit against her father for the refund.”
Return Dowry Paid to Wife’s Parents
The dowry in question included cows and cash paid to the woman’s parents under Kisii customary law.
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The woman had argued that since the dowry was given to her parents, any refund should be directed at them.
The judge disagreed, finding that the wife was legally responsible for ensuring the dowry’s return following the dissolution of the union.
Justice Magare said the order symbolized the cancellation of both the customary and Christian marriages between the parties.
He further noted that dowry repayment remained an important element in traditional divorce proceedings, particularly where dual marriage systems, customary and religious exist.
The ruling also addressed the wife’s plea for alimony, which the court rejected outright.
Custody of Children
Justice Magare declared that alimony is no longer recognized in Kenyan law, citing Article 45 of the Constitution, which guarantees equal rights for both spouses during and after marriage.
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“The concept of alimony is an anathema to equality,” he wrote. “Parties must walk out with only the scars of marriage. None has a burden of maintaining the other.”
The court held that maintenance obligations between spouses no longer apply automatically after divorce and that both men and women are expected to support themselves equally.
In dismissing the appeal, Justice Magare also touched on parental rights, stating that custody issues should be handled separately under the Children Act, which gives both parents equal responsibility for their child.
“A husband may be a bad partner, but that does not make him a bad father,” he said. “Children have an inalienable right to parental care from both parents.”
The appeal was dismissed with no order as to costs.
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