A recent High Court ruling has reignited debate over dowry refunds in Kenya, where women may soon be required to return dowry payments after divorce.
In the case between CKN Vs DMO (2023), the court ruled that in traditional customary marriages, dowry must be refunded upon divorce to symbolise the union's dissolution.
In the ruling, the High Court in Kisii held that dowry symbolises a customary union and must be returned upon divorce, even if it was paid to the woman’s parents.
Judge Kizito Magare, while issuing the judgment, upheld a previous ruling directing a woman, who was an appellant in the case, to return the dowry that had been paid as per the Kisii customary marriage guidelines.
The court further stated that even when the dowry was paid to the woman’s parents, the wife remains responsible for its return, though she may later recover it from her parents if she chooses.
The appellant had sought orders preventing her from returning the dowry, citing the concept of alimony.
Alimony is financial support that a person is ordered by a court to give to their spouse during separation or following divorce as a form of upkeep or maintenance.
However, the court found that alimony was no longer a reality in Kenya with the introduction of the equality clause provided under Article 45 of the Constitution, which provided that parties to a marriage were entitled to equal rights at the time of the marriage, during the marriage, and at the dissolution of the marriage.
“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 That was why Kenya had the Married Women Property Act, 1882 (repealed),” read part of the ruling.
In making the judgment, the court has affirmed a cultural practice that has been ongoing for decades and will likely set a precedent in how divorce cases pertaining to dowry are handled.
Speaking to Kenyans.co.ke, J.L Murugi, an advocate of the High Court noted that the judgment gave legal clarity on an issue that had long been seen as a reserve of cultural laws. She added that this could now lead to divorcing couples having a clearer roadmap on how to handle the divorce process.
About Dowry Payment in Kenya
The topic of dowry payment in Kenya is a complex one, with various communities having their unique traditions that guide what is to be paid and the amount deemed satisfactory.
Typically, dowry is the currency that directs traditional customary marriages and is overseen by men from the husband's and wife's sides. It is characterised by different stages, intense negotiations, and, in some cases, can be a lifetime endeavour.
In the Agikuyu community, dowry payment is known as Ruracio, and payments include goats, money, and honey beer (muratina). Among the Luo, the groom’s family visits the bride’s home for ayie negotiations. The mother of the bride must explicitly say ‘Ayie’ to approve the union. Dowry traditionally includes cows, goats, and cash.
With the Kalenjin, the ceremony is known as Koito, with elders leading the often formal and meticulous process. Payment is made in cattle, goats, and honey. For the Luyha, the ceremony is known as Chikwi, with negotiations being a communal event with elders. Dowry often includes cows, goats, chickens, and local brew.
For the Kamba, the local term is Ngasya ya Maundu ma mbui (the goat of things), and the traditions include goats, cash, and clothing for the bride’s parents. The bride’s mother receives a special goat called mbui sya nzama. The Maasai dowry ceremony is called Enkoshoke enkishu, with cattle being the central form of dowry, often between ten to 49 cows, depending on the family’s wealth.
The common theme associated with dowry is that it is not a purchase of the bride but a token of appreciation. Negotiations are a family-to-family affair, guided by elders. Payment can be symbolic, gradual, or ceremonial.
