Dowry Must Be Returned After Divorce, High Court Rules

Women whose marriages end in divorce must facilitate the return of dowry paid during customary marriage ceremonies, the High Court has ruled in a landmark judgment that has sent shockwaves through Kenya’s legal and social circles.

In the case of CKN v DMO, Justice DKN Magare declared on December 8, 2023, that dowry symbolizes the existence of a customary union and must therefore be returned when that union is dissolved, regardless of who received the payment.

The judge made it clear that where dowry was paid to the woman’s parents, as is traditional practice, the woman bears the responsibility of ensuring its return to her former husband’s family.

Should she wish to recover what she facilitates returning, the court noted, she has two years within which to file an indemnity suit against her own parents.

“The traditional marriage is cancelled by return of dowry. Whether the same is returned by her or her father, it is irrelevant,” Justice Magare stated in the judgment that has sparked heated debate about the intersection of customary law and modern constitutional principles.

The ruling, however, appears to diverge from established customary practices in some Kenyan communities, particularly among the Luo, where tradition dictates that not all dowry is returned even after divorce.

According to Magai Jonyo, a representative of the Luo Council of Elders in Karachuonyo, the customary process known as ‘waro dhok’ (collecting cattle) requires that one cow, called ‘dher pien’, must always remain at the bride’s paternal home even after separation.

“A cow and a goat should remain at her home. Not everything is taken away, even after separation,” Jonyo explains, adding that the symbolic cow serves as a gesture of gratitude for having been allowed to marry the woman, acknowledging the transformation that occurred during the union.

“In the past, a woman would be married as a virgin, but by the time she returned to her parents, she often had children. To put it simply, no one would expect to take back something once it has been used. You must show appreciation by leaving something behind,” the elder notes.

This customary practice raises questions about how Justice Magare’s ruling will be applied across Kenya’s diverse cultural landscape, where different communities maintain distinct marriage and divorce traditions that have been observed for generations.

The High Court judgment went further, addressing another contentious issue that has long been part of divorce proceedings in Kenya.

Justice Magare declared that alimony, the practice of one spouse supporting another after divorce, no longer exists under Kenyan law.

Citing Article 45 of the Constitution, which guarantees equal rights to parties “at the time of the marriage, during the marriage and at the dissolution of the marriage,” the judge held that the concept of alimony was fundamentally incompatible with constitutional equality provisions.

“The concept of alimony is an anathema to the equality of men and women,” the judgment read, noting that the practice was rooted in outdated notions that men and women were not equal partners in marriage.

The court explained that historically, alimony arose from the idea that “a man and woman join in holy matrimony and become one and that is the man,” which led to men being required to continue supporting their former wives indefinitely.

However, with the introduction of the 2010 Constitution’s equality provisions, this foundation had crumbled.

The judge applied this constitutional interpretation across all marriage types recognized in Kenya, stating explicitly that the equality principle applies whether the union was formalized under customary law or as a Christian marriage.

In the case before him, which involved two underlying marriage traditions, Kisii Customary Law and Christian marriage, Justice Magare ordered the return of instruments for both marriages.

The marriage certificate of the Christian union was to be returned to signal the cancellation of that marriage, while the dowry was to be returned to dissolve the customary union.

Jarongo Okumu, an elder from Kanyamwa in Ndhiwa, maintains that traditional practices should endure despite modernization.

“The same rule of leaving dher pien at the bride’s home should still apply, even if the divorce is granted through the courts. Modernisation may have altered some practices, but traditions should endure,” he says.

The elder adds that divorce was traditionally a rare occurrence, with the decision to separate subject to the judgment of elders who would first strive to reconcile the couple.

In cases where the animals used as dowry had been sold or slaughtered, other livestock or their monetary equivalent could be offered to complete the process.

However, the judgment was not without a human touch.

Justice Magare acknowledged the personal dimensions of the dispute before him, noting the “disdain” with which the appellant spoke of the respondent, who had moved on and was “happily married and staying in Mulolongo in Machakos county.”

“I express my sincere hope that the parties who still appear young can refresh and go back to the market without the baggage of the failed marriage,” the judge wrote, tempering the legal technicalities with recognition of the emotional toll divorce takes.

Legal experts suggest the ruling could have far-reaching consequences for divorce proceedings across the country, potentially affecting thousands of cases where dowry return and spousal maintenance have been points of contention.

The decision also raises questions about how courts will handle situations where dowry payments were made years or even decades ago, where livestock or other perishable goods were involved, or where the woman’s parents are deceased or unable to return what was received.

While the judgment firmly establishes that constitutional equality principles trump traditional practices that disadvantage either gender, it also preserves respect for customary marriage systems by requiring proper dissolution through dowry return.

The case serves as a reminder of Kenya’s ongoing struggle to harmonize constitutional values with deeply rooted cultural practices, a balancing act that courts must perform as they interpret laws affecting millions of Kenyans whose lives span both traditional and modern legal systems.

The tension between Justice Magare’s directive for complete dowry return and the Luo custom of retaining ‘dher pien’ illustrates the complexity of applying uniform legal principles across Kenya’s rich tapestry of cultural traditions.