She wasn’t your wife, judge tells man who wants to end 22-year relationship

The Supreme Court gave the man a shock by making a shocking discovery when it established that the woman he had been living with for 22 years and who even had children with him was not his wife.

The lovers lived together until December 2020, when the woman moved to the US. Resentful of the refusal to return to Kenya, the man, codenamed JTO, asked the district court to end his marriage to the woman, codenamed AP.

The lower court first found that while he claimed he had married her in a traditional wedding, there was no evidence to suggest the two were married. He appealed the ruling to Supreme Court Justice Helene Namisi.

She also found that although he relied on Luo customs to enter into the marriage, he did not provide evidence to support his claims that all marriage formalities had been completed.

Judge Namisi noted that the JTO had to call experts as witnesses on Luo customs or witnesses who were present at the ceremony or conducted the rituals. “I agree with the trial court that the appellant failed to prove his case to the required standard. Accordingly, I find no reason to interfere with the decision. The appeal is hereby dismissed,” Judge Namisi ruled.

The judge was of the view that once the couple completed the customary rituals, they should apply to the Registrar of Marriages for registration of the marriage within six months. “Apparently, apart from the aspect of registering his customary marriage, the applicant has been disqualified from seeking dissolution of any relationship he shared with the respondent,” she noted.

She added that because of the large number of adult Kenyans who marry customarily, strict adherence to the law would mean most unions would not be recognised.

“It would be absurd to inform two people who have lived together for most of their adult lives, gone through the rituals of a supposed marriage, presented themselves as husband and wife, given birth to three children and generally suffered and enjoyed the ups and downs of living together that their union is not considered a marriage just because they have not registered it and obtained a certificate,” she said.

Nevertheless, she said, the man’s insistence on divorce had a deeper basis. She said it was a mystery to him that he was asking the court to free him from the bondage of love, yet he was free from the very beginning. “It is difficult to understand why the appellant insisted on this case, yet was ‘freed’ from the relationship, the remedy he sought in the trial court. I would venture to guess that it goes beyond the cause of divorce. There may be other interests that may not necessarily be reflected in the pleadings,” said Judge Namisi.

According to her, it was important to go beyond the law. In his case, JTO testified that he married AP according to Luo customary law and had three children. He said that after she left for the US, she never returned home. To him, this was cruelty.

The man said she caused him untold stress, suffering and emotional trauma. At a district court hearing, she admitted she knew about the case but never responded. The case was heard without her participation. Despite this, Senior Resident Judge Jael Aduke on November 28, 2022, found that the man did not approach the court to enter into a marriage contract in order to obtain a divorce.

She ruled that despite living together, the two lovebirds never registered their marriage. Aduke also stated that ruling that the two were married would be against the Marriage Act.

The judge also said the JTO must refer to expert evidence. In his appeal, the man argued that Aduke erred in not granting him a divorce and that the judge erred in departing from the facts of the case.

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