The High Court sitting in Kisii has ruled that wives must return dowries after divorce and declared that the concept of alimony is no longer part of Kenyan law.
The decision, delivered by Justice DKN Magare on December 8, 2023, in the CKN v DMO appeal case, has far-reaching implications for all forms of marriage recognised under Kenyan law, including customary and Christian unions.
The case arose from a divorce petition initially filed before the Kisii Chief Magistrate’s Court, where the magistrate ordered the appellant, a woman identified as CKN, to return dowry paid by her husband, DMO, and denied her application for alimony and full custody of their child.
Dissatisfied, CKN appealed, arguing that the lower court erred in law and fact by failing to appreciate that dowry had been paid to her parents, not to her personally.
She also sought custody of the child and monthly maintenance of Sh25,000, alongside alimony.
Justice Magare began by reaffirming the appellate court’s duty to re-evaluate evidence and make its own findings.
He noted that although the appellant had failed to file submissions despite being reminded several times, “submissions are not evidence,” and the absence of such documents did not affect the trajectory of the matter.
At the heart of the appeal were two issues: whether the appellant should have been ordered to return dowry, and whether the court erred in denying her custody and alimony.
On the question of child custody, the judge referred to Article 53 of the constitution, which guarantees every child “equal responsibility of the mother and father to provide for the child, whether they are married to each other or not.”
He emphasised that the Children's Court, not a divorce court, is the proper forum to determine custody and welfare matters.
“The court dealing with divorce deals with mundane issues, but children are not parties. The proper court to deal with the nitty-gritties of the children is the Children's Court pursuant to section 90 of the Children Act,” he ruled.
Justice Magare upheld the lower court’s finding that both parents had equal rights and responsibilities towards the child, saying, “A husband can be a mongrel to the wife or ex-wife but remains a father to the child. The fact that he is a bad husband or someone is a bad wife does not make them bad parents.”
Turning to the dowry issue, the judge rejected the appellant’s argument that she could not be ordered to refund what her parents had received.
He reasoned that under Kenyan law, and particularly in the context of customary marriages, the return of dowry signifies the dissolution of the marriage.
“The traditional marriage was cancelled by the return of dowry. Whether the same was returned by her or her father was irrelevant,” he stated.
The court observed that the dowry refund is not limited to the Gusii custom, even though the parties belonged to that community.
Justice Magare clarified that the principle applied generally to all customary marriages in Kenya, as dowry payment and its return are integral to the recognition and termination of such unions.
He further noted that where both Christian and customary elements are present in a union, each must be symbolically dissolved through the instruments that formalised it.
“The court rightfully ordered the return of the two instruments for each of the marriages. The marriage certificate of the Christian marriage was returned to signal the cancellation of the Christian marriage,” he said.
Addressing the appellant’s argument that her parents should have been joined in the suit since they received the dowry, Justice Magare dismissed the claim.
“It is unnecessary to join the appellant’s parents in order to get a refund of dowry,” he ruled, adding that the appellant had two years to pursue an indemnity suit against her father if she wished to recover what she refunded.
On alimony, the court issued one of the most categorical pronouncements in recent family law jurisprudence.
Justice Magare held that the concept of alimony is inconsistent with Article 45(3) of the Constitution, which provides that “parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage.”
He reasoned that alimony was rooted in outdated notions of inequality between men and women.
“The reality of the concept of alimony is that it was based on the idea that men and women were not equal,” he wrote.
“The concept of alimony is anathema to equality of men and women. It portrays women wrongfully as weak. Parties must walk out with only scars of the marriage.”
The judge further observed that the equality clause in the 2010 constitution renders alimony repugnant to the current legal order.
“Alimony is no longer a reality in Kenya with the introduction of the equality clause provided under Article 45 of the constitution,” he held.
“None of the parties has a burden of maintaining the other.”
To support his position, Justice Magare cited the 2019 High Court decision in MN v JMK, where Justice George Odunga held that Article 45(3) of the constitution “does not create nor is it intended to create equal spousal ownership of property acquired during marriage… but recognizes personal rights of each spouse to enjoy equal rights and to receive equal treatment without discrimination on the basis of gender.”
Justice Magare concluded that alimony was a relic of a patriarchal system in which men were seen as sole providers, a view incompatible with constitutional equality.
“It is not surprising that there was a Married Women Property Act, 1882 (repealed), but no Married Men Properties Act,” he quipped.
Having found no error in the trial court’s decision, the judge dismissed the appeal in its entirety, making no order as to costs.
In his parting remarks, Justice Magare urged separating couples to move on peacefully, observing that “the amount and vigour of energy used to fight each other can build a train across the Hind Mahasagar from the breath of the Federal Republic of Somalia to Palestine all the way to Himalayas.”
The ruling — though delivered in a Kisii divorce dispute — clarifies principles that apply across all customary marriages in Kenya.
It affirms that the return of dowry marks the formal end of a customary marriage and that alimony, as historically understood, no longer exists under Kenya’s equality-based constitutional framework.
The judge observed that the concept of alimony was based on the idea that men and women were not equal and that the man was the sole provider.
