Woman ordered to return dowry, denied post-divorce support

Married women in Kenya will now be required to return dowry to their former husbands if a marriage ends, following a landmark ruling by the High Court in Kisii. The decision has sparked nationwide debate on gender equality and traditional marriage customs.

The court ordered a woman to refund dowry worth over Sh150,000, including cows and sheep, which had been paid to her parents by her estranged husband. The couple had separated in 2019.

Justice Kizito Magare also rejected the woman’s request to compel her former husband to provide financial support, including maintenance, following their divorce, which was finalised by the court in 2022.

Alimony abolished

The judge stated that alimony is no longer a reality in Kenya under the current Constitution. “The concept of alimony is an anathema to the equality of men and women. It wrongfully portrays women as weak. Any spouse must walk away with only the scars of the marriage, without expecting financial support from the other,” he ruled.

The ruling arose from an appeal by the woman, identified in court as CKN, against a magistrate’s decision ordering her to return the dowry and denying her claims for alimony and exclusive custody of the couple’s child.

According to the court, dowry is a financial transaction reflecting mutual obligations, and its return is justified if the marriage is dissolved. “The court’s position is clear: dowry must be refunded upon dissolution of marriage, and alimony claims are no longer constitutionally supported,” Justice Magare stated.

Alimony, or spousal maintenance, traditionally provided financial support to a spouse after divorce, often arising in patriarchal systems where women were financially dependent on their husbands. Under the now-repealed Matrimonial Causes Act (Cap 152), Kenyan courts could award alimony under Sections 25 and 26. With the 2010 Constitution, however, these provisions became inconsistent with the equality clause.

The Kisii case has become a defining precedent on two deeply emotive issues: the refund of dowry and spousal maintenance, both at the intersection of tradition, law, and modern constitutional equality.

The case began as an ordinary divorce petition before the Kisii Chief Magistrate’s Court in 2021. The parties had married on December 3, 2017, in a Christian ceremony following a customary union under Kisii traditions. The marriage collapsed barely two years later, with the wife returning to her parents’ home in 2019.

CKN accused her husband, identified as DMO, of cruelty and infidelity, claiming he had remarried and was living in Machakos County. She sought divorce, custody of their minor child, and Sh25,000 per month in maintenance, as well as alimony.

DMO opposed her claims and filed a counter-petition demanding the refund of dowry paid to CKN’s parents during their traditional marriage ceremony. The dowry included Sh150,000 in cash, livestock, and gifts such as a blanket, a sufuria for her mother, and trench coats and lesos for women, in accordance with Kisii custom.

Entitled to alimony

Resident Magistrate Christine Ogweno dissolved the marriage in 2022, ordering the wife to return the dowry. CKN appealed, arguing that she personally had never received the dowry, which was paid to her parents, and that any claim should have been directed at them. She also maintained that she was entitled to alimony and maintenance, as her husband had abandoned her.

Justice Magare observed that the union was beyond saving. “From the pleadings, the marriage was already dead. It was not for resuscitation,” he wrote, affirming the lower court’s decision.

However, he noted that auxiliary reliefs, such as child custody, alimony, and refund of dowry, required careful consideration.

On child custody, the court reaffirmed that both parents share equal responsibility under Article 53 of the Constitution. “The child has an inalienable right to both father and mother. Any issues should be dealt with by the Children’s Court under Section 90 of the Children Act,” Justice Magare ruled.

He emphasised that being a poor spouse does not make one a poor parent: “There is no parent with a superior right over another. A husband can be a mongrel to his wife or ex-wife, but remains a father to the child. The fact that someone is a bad spouse does not make them a bad parent.”

The court’s ruling on dowry, known in Kisii culture as chinkororo, was equally firm. CKN had argued that since the dowry was paid to her parents, she should not be compelled to refund it. Justice Magare rejected this, declaring that “whether it was returned by her or her father is irrelevant.”

Under both Kisii customary law and Christian marriage, dissolution of a union must be marked by the return of marriage instruments: the Christian marriage certificate and the traditional dowry.

Emotional appeal

He added that if the woman felt aggrieved that her parents had received the dowry, she could sue them for indemnity within two years, but this did not absolve her obligation to ensure the refund.

Justice Magare also sent shockwaves with his pronouncement that alimony “is no longer a reality in Kenya” under the 2010 Constitution. Citing Article 45(3), which guarantees equal rights for spouses throughout marriage, he ruled that one spouse supporting another after divorce is “repugnant to equality and good order.”

“The concept of alimony was based on the assumption that men and women were not equal. It wrongfully portrayed women as weak. Parties must walk away with only the scars of the marriage,” he stated.

Calling alimony a “colonial relic” rooted in the 1882 Married Women’s Property Act, Justice Magare noted that such laws presumed female dependence. “It is not surprising that there was no Married Men’s Property Act,” he remarked.

He ruled that the appellant was not entitled to alimony—not for lack of proof, but because the concept no longer exists under Kenyan law. “None of the parties bears the burden of maintaining the other,” he said, signalling a decisive shift in Kenya’s post-divorce legal landscape.

In an unusually emotional close, the judge urged both parties to move on. “The energy used to fight each other could build a train from Somalia to the Himalayas,” he wrote, lamenting the bitterness of divorce battles. He added that both were still young and should “refresh and go back to the market without the baggage of a failed marriage.”

The appeal was dismissed, with no order on costs.

The ruling has split opinion. Some women’s rights advocates fear it could harm spouses who left work for family duties, while others hail it as a milestone for gender equality. “The message is clear: equality cuts both ways,” said Nyandoro, the husband’s lawyer.

Others caution against reading family disputes solely through constitutional lenses. “A centralised human rights approach can create more problems than it solves,” said lawyer Peter Koira.

Businessman Eric Nyamweya questioned whether ordering the wife to refund dowry paid to her parents was practical. “In African custom, the wife does not handle dowry. Such orders should be directed at the family,” he argued.

Advocate Mirriam Nsongo warned that the ruling “erodes our cultural heritage,” while Kisii elder Micah Nyaribo praised it for “respecting tradition—when a marriage ends, the dowry must return.”

Earlier rulings had questioned alimony’s fairness, but none had declared it obsolete. Justice Magare’s judgment, echoing Justice Odunga’s 2019 observation that men are no longer sole breadwinners, now cements that shift.

By ordering the return of dowry and declaring alimony obsolete, Justice Magare has effectively rewritten the rules governing the interplay of love, law, and tradition in a modern constitutional democracy.

As he poignantly concluded in his judgment: “Parties must walk away with only the scars of the marriage.”