A Kenyan High Court has ruled that women must return dowry payments in customary marriages upon divorce, reigniting debates on tradition and equality. The decision in the case of CKN Vs DMO emphasizes the symbolic role of dowry in dissolving unions. This precedent could reshape how divorce cases handle cultural practices.
In a landmark judgment delivered by the High Court in Kisii, Judge Kizito Magare upheld a directive for a woman to return the dowry paid during her customary marriage. The case, CKN Vs DMO (2023), centered on Kisii customary guidelines, where dowry symbolizes the union and must be refunded upon divorce to signify its dissolution. Even if the dowry was paid to the woman's parents, the court held the wife responsible for its return, though she could seek recovery from her family later.
The appellant had argued against the refund, invoking alimony as financial support post-divorce. However, the court rejected this, citing Article 45 of the Kenyan Constitution, which guarantees equal rights in marriage, during marriage, and at dissolution. 'The reality of the concept of alimony was that it was based on the concept that men and women were not equal. A man and woman joined in holy matrimony and became one. That led to the men paying alimony as they slowly let go of their ex-wives. Alimony ceased on remarriage, not for any reason but that the woman had a new man to maintain her. That was why Kenya had the Married Women Property Act, 1882 (repealed),' the ruling stated.
This decision affirms longstanding cultural practices across Kenyan communities, where dowry serves as a token of appreciation rather than a purchase. In the Agikuyu community, it is known as Ruracio, involving goats, money, and honey beer (muratina). Among the Luo, Ayie negotiations include cows, goats, and cash, approved by the bride's mother saying 'Ayie.' Kalenjin ceremonies, called Koito, feature cattle, goats, and honey. Luyha's Chikwi involves communal elder negotiations with cows, goats, chickens, and local brew. For Kamba, Ngasya ya Maundu ma mbui includes goats, cash, and a special goat for the bride's mother. Maasai's Enkoshoke enkishu centers on 10 to 49 cows based on family wealth.
J.L. Murugi, an advocate of the High Court, told Kenyans.co.ke that the judgment provides legal clarity on an issue previously governed by cultural laws alone. She noted it could offer divorcing couples a clearer roadmap for handling such processes, potentially setting a precedent for future cases.