REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MAKUENI
HIGH COURT FAMILY APPEAL NO. E012 OF 2025
DANIEL MUTETO KILTYA ….………………………………… APPELLANT
VERSUS
MARY MBULA NGUNGU ……………………….……...……. RESPONDENT
( Being an appeal from the Judgment of Hon. Martin Mutua, Senior Resident Magistrate, delivered on 31 st of July, 2025 in Makueni Magistrates Court Divorce Case No. E001 of 2025 ).
JUDGMENT
Introduction and Background
1. This is an appeal arising from the judgment of the subordinate court at Makueni in CM Divorce Cause No. E001 of 2025 . The judgment arises from divorce proceedings that were filed by the Appellant against the Respondent and wherein the trial court dismissed the divorce proceedings, primarily on the basis that the provisions of the law relied upon by the Petitioner, setting the grounds for dissolution of marriage under customary law, were not provided for under the Matrimonial Causes Act, Cap 152 of the Laws of Kenya.
2. Being dissatisfied with the determination of the trial court, the Appellant did file a Memorandum of Appeal dated 14 th August 2025. He sets out three main grounds of appeal, upon which he seeks the judgment to be set aside and the petition for divorce be granted. It is noteworthy that the Respondent, save for the appearance in court on the 15 th April, 2025 wherein she acknowledged service of the petition, the Respondent did not file an Answer to the Petition or participate in the proceedings before the lower court thereafter. Despite service of the appeal on the Respondent, she equally neither responded not participated in the appeal proceedings before this court. In that regard, both the petition for divorce and the appeal are not challenged.
Issues for Determination .
3. From the Memorandum of Appeal and submissions of the Appellant, the grounds can be condensed into two issues:
a. that the trial court misdirected itself by applying non-existent provisions of the law in dismissing the petition for divorce.
b. That the trial court failed to correctly consider the evidence adduced before it in making its determination.
Analysis and determination .
4. A perusal of the lower court record shows that the petition herein was filed on the 20 th January 2025. The same was served on the Respondent who did not file any response but attended the mention on 15 th April, 2025 and confirmed receipt of the petition. She did not attend any other hearing thereafter. The petition was heard on the 8 th of July 2025 and the Petitioner testified, generally adopting the averments in the Petition and the Affidavit in Support.
5. In the averments and Affidavit in Support, the Petitioner stated that he met the Respondent in 2002 and got married in the same year. Together they had four children born on the 10 th March 2003, 1 st October 2004, 23 rd November 2008 and 9 th November 2010.
6. It was his further evidence that they faced several challenges and eventually separated in 2019 and they have not lived together since. He added that as a result, their relationship had irretrievable broken down and thus the petition for divorce. The particulars were laid out at paragraph 8 and 9 of the petition. They included the fact that the parties have been separated since 2019, the Respondent has severally broken into the Appellants house and carted away the household items and declined to return them despite being directed to do so, the parties are not in communication and the Appellant has been left to solely provide for the issues of the marriage.
7. In the short two-page judgment delivered by the trial court, the court has cited and relied on section 8 of the Matrimonial Causes Act, Cap 152 of the Laws of Kenya . He proceeded to set out the provisions in the judgment. The citation sets the grounds a party can rely on in the petition for dissolution of marriage. These include adultery, desertion for at least three years, cruelty, incurable insanity for at least five years, rape, sodomy or bestiality. The court proceeded to dismiss the petition for the reason that section 8 of the Matrimonial Causes Act make no provision for the dissolution of marriage on the grounds of the marriage having irretrievable broken down.
8. At paragraph 10, 11 and 12 of the judgment, the court proceeded to also state that the marriage having been celebrated under the Kamba customary law, the petitioner was required to undertake the dissolution of the marriage under the Kamba customary law by taking a goat to the Respondents family, signifying that he no longer wished to have the Respondent as the wife, a tradition called “ kutunga mbui ya ulee ”, a tradition that the Appellant had not given evidence to confirm his compliance with the same. At paragraph 13 of the judgment, the court added that though the Appellant had testified to the broken down relationship, he had not demonstrated that he had exhausted all avenues at reconciliation to warrant the dissolution of the marriage.
9. I have carefully evaluated the evidence that was adduced before the trial court. I have also carefully considered the reasoned judgment of the trial court. In the first instance, I note that Cap 152 of the Laws of Kenya is the Matrimonial Property Act and not the Matrimonial Causes Act. The Matrimonial Causes Act, relates to the division of matrimonial property after the dissolution of a marriage.
10. Since the enactment of the Marriage Act, Cap 150 in 2014, the same is the premier legislation guiding the marriage, separation and dissolution of marriages of all cadres in Kenya. It covers Christian, Hindu, Muslim, Customary and Civil marriages. The marriage that was contracted by the Petitioner, now Appellant and the Respondent is thus covered under the provisions of the marriage Act. The heading of the Act clearly indicates so by stating “ An Act of Parliament to amend and consolidate the various laws relating to marriage and divorce and for connected purposes ”. Section 98 (1) of the Marriage Act, Cap 150 also clearly spells out the fate of marriages contracted prior to the enactment of the Act. It provides:
“( 1) A subsisting marriage which under any written or customary law hitherto in force constituted a valid marriage immediately before the coming to force of this Act is valid for the purposes of this Act ”.
11. The provisions of section 69 of the Marriage Act provide for the grounds upon which such a marriage can be dissolved. These are:
“ Grounds for divorce of Customary marriages
(1) A Party to a marriage celebrated under Part V may petition the court for the dissolution of the marriage on the ground of—
(a) adultery;
(b) cruelty;
(c) desertion;
(d) exceptional depravity;
(e) irretrievable breakdown of the marriage; or
(f) any valid ground under the customary law of the petitioner .
12. The Marriage Act at section 66 (6) further sets out what constitutes an irretrievable broken down marriage. The section provides:
“( 6) A marriage has irretrievably broken down if—
(a) a spouse commits adultery;
(b) a spouse is cruel to the other spouse or to any child of the marriage;
(c) a spouse willfully neglects the other spouse for at least two years immediately preceding the date of presentation of the petition;
(d) the spouses have been separated for at least two years, whether voluntary or by decree of the court;
(e) a spouse has deserted the other spouse or at least three years immediately preceding the date of presentation of the petition;
(f) a spouse has been sentenced to a term of imprisonment for life or for a term of seven years or more;
(g) a spouse suffers from incurable insanity, where two doctors, at least one of whom is qualified or experienced in psychiatry, have certified that the insanity is incurable or that recovery is improbable during the life time of the respondent in the light of existing medical knowledge; or
(h) any other ground as the court may deem appropriate .
From the averments of the Petitioner, the relationship between the Petitioner and Respondent falls under section 66 (6) (c), (d) and (e). The parties have been apart for over 5 years as at the time the petition was lodged.
13. The constitution and the Marriage Act encourage parties with a marital dispute to consider mediation before lodging the petition for divorce or prior to the determination of the divorce petition. The process is however not mandatory. The wording under section 68 of the Marriage Act is couched in optional terms. The same states thus:
“ Mediation of disputes in Customary marriages
(1) The parties to a marriage celebrated under Part V may (emphasis mine) undergo a process of conciliation or customary dispute resolution before the court may determine a petition for the dissolution of the marriage ”.
14. As already stated, the Respondent, despite service in the primary suit and appeal, neither filed any Answer to the Petition, Replying Affidavit to the Memorandum of Appeal nor attended the hearings. The essence of the same is that the evidence of the Petitioner is thus uncontroverted. Courts have variously and consistently held that uncontroverted evidence is useful and weighty for use by the courts in determining disputes. In the cited case of Mary Nyambura Kangara alias Mary Nyambura Paul vs Paul Ogari Mayaka (2023) KESC 15 (KLR ), the Supreme Court pronounced itself thus:
“ Uncontroverted evidence is weighty and courts will rely on it to prove facts in dispute ”.
15. In that regard, as the pleadings before court were not disputed and the facts before court unchallenged, the trial court had no reason to introduce procedures that neither party had pleaded on in determining the petition herein. That would only be applicable as obiter dicta , but not as the ratio decidendi for the determination.
16. Suffice to state that the trial court did not apply the current law guiding the marriage and dissolution of customary marriages in Kenya, being the Marriage Act and thus fell into the error of determining the petition on the basis of the wrong statute.
17. I will thus be inclined to allow the appeal herein with the following results:
a. The judgment of the trial court delivered on the 31 st day of July 2025 is hereby set aside.
b. The determination of the trial court dismissing the petition herein is substituted with an order allowing the dissolution of the marriage between the Appellant and the Respondent.
c. A Decree Nisi to issue forthwith and a Decree Absolute to issue after 30 days from the date of this judgment.
d. Each party to bear their costs of the suit and appeal .
Dated, signed and delivered virtually via Microsoft Teams this 8 th Day of July 2026.
HCFA NO. E012 OF 2025 DANIEL MUTETO KILATYA VS MARY MBULA NGUNGA JUDGMENT Pg. 5
IN THE HIGH COURT OF KENYA AT MAKUENI
HIGH COURT FAMILY APPEAL NO. E012 OF 2025
DANIEL MUTETO KILTYA ….………………………………… APPELLANT
VERSUS
MARY MBULA NGUNGU ……………………….……...……. RESPONDENT
( Being an appeal from the Judgment of Hon. Martin Mutua, Senior Resident Magistrate, delivered on 31 st of July, 2025 in Makueni Magistrates Court Divorce Case No. E001 of 2025 ).
JUDGMENT
Introduction and Background
1. This is an appeal arising from the judgment of the subordinate court at Makueni in CM Divorce Cause No. E001 of 2025 . The judgment arises from divorce proceedings that were filed by the Appellant against the Respondent and wherein the trial court dismissed the divorce proceedings, primarily on the basis that the provisions of the law relied upon by the Petitioner, setting the grounds for dissolution of marriage under customary law, were not provided for under the Matrimonial Causes Act, Cap 152 of the Laws of Kenya.
2. Being dissatisfied with the determination of the trial court, the Appellant did file a Memorandum of Appeal dated 14 th August 2025. He sets out three main grounds of appeal, upon which he seeks the judgment to be set aside and the petition for divorce be granted. It is noteworthy that the Respondent, save for the appearance in court on the 15 th April, 2025 wherein she acknowledged service of the petition, the Respondent did not file an Answer to the Petition or participate in the proceedings before the lower court thereafter. Despite service of the appeal on the Respondent, she equally neither responded not participated in the appeal proceedings before this court. In that regard, both the petition for divorce and the appeal are not challenged.
Issues for Determination .
3. From the Memorandum of Appeal and submissions of the Appellant, the grounds can be condensed into two issues:
a. that the trial court misdirected itself by applying non-existent provisions of the law in dismissing the petition for divorce.
b. That the trial court failed to correctly consider the evidence adduced before it in making its determination.
Analysis and determination .
4. A perusal of the lower court record shows that the petition herein was filed on the 20 th January 2025. The same was served on the Respondent who did not file any response but attended the mention on 15 th April, 2025 and confirmed receipt of the petition. She did not attend any other hearing thereafter. The petition was heard on the 8 th of July 2025 and the Petitioner testified, generally adopting the averments in the Petition and the Affidavit in Support.
5. In the averments and Affidavit in Support, the Petitioner stated that he met the Respondent in 2002 and got married in the same year. Together they had four children born on the 10 th March 2003, 1 st October 2004, 23 rd November 2008 and 9 th November 2010.
6. It was his further evidence that they faced several challenges and eventually separated in 2019 and they have not lived together since. He added that as a result, their relationship had irretrievable broken down and thus the petition for divorce. The particulars were laid out at paragraph 8 and 9 of the petition. They included the fact that the parties have been separated since 2019, the Respondent has severally broken into the Appellants house and carted away the household items and declined to return them despite being directed to do so, the parties are not in communication and the Appellant has been left to solely provide for the issues of the marriage.
7. In the short two-page judgment delivered by the trial court, the court has cited and relied on section 8 of the Matrimonial Causes Act, Cap 152 of the Laws of Kenya . He proceeded to set out the provisions in the judgment. The citation sets the grounds a party can rely on in the petition for dissolution of marriage. These include adultery, desertion for at least three years, cruelty, incurable insanity for at least five years, rape, sodomy or bestiality. The court proceeded to dismiss the petition for the reason that section 8 of the Matrimonial Causes Act make no provision for the dissolution of marriage on the grounds of the marriage having irretrievable broken down.
8. At paragraph 10, 11 and 12 of the judgment, the court proceeded to also state that the marriage having been celebrated under the Kamba customary law, the petitioner was required to undertake the dissolution of the marriage under the Kamba customary law by taking a goat to the Respondents family, signifying that he no longer wished to have the Respondent as the wife, a tradition called “ kutunga mbui ya ulee ”, a tradition that the Appellant had not given evidence to confirm his compliance with the same. At paragraph 13 of the judgment, the court added that though the Appellant had testified to the broken down relationship, he had not demonstrated that he had exhausted all avenues at reconciliation to warrant the dissolution of the marriage.
9. I have carefully evaluated the evidence that was adduced before the trial court. I have also carefully considered the reasoned judgment of the trial court. In the first instance, I note that Cap 152 of the Laws of Kenya is the Matrimonial Property Act and not the Matrimonial Causes Act. The Matrimonial Causes Act, relates to the division of matrimonial property after the dissolution of a marriage.
10. Since the enactment of the Marriage Act, Cap 150 in 2014, the same is the premier legislation guiding the marriage, separation and dissolution of marriages of all cadres in Kenya. It covers Christian, Hindu, Muslim, Customary and Civil marriages. The marriage that was contracted by the Petitioner, now Appellant and the Respondent is thus covered under the provisions of the marriage Act. The heading of the Act clearly indicates so by stating “ An Act of Parliament to amend and consolidate the various laws relating to marriage and divorce and for connected purposes ”. Section 98 (1) of the Marriage Act, Cap 150 also clearly spells out the fate of marriages contracted prior to the enactment of the Act. It provides:
“( 1) A subsisting marriage which under any written or customary law hitherto in force constituted a valid marriage immediately before the coming to force of this Act is valid for the purposes of this Act ”.
11. The provisions of section 69 of the Marriage Act provide for the grounds upon which such a marriage can be dissolved. These are:
“ Grounds for divorce of Customary marriages
(1) A Party to a marriage celebrated under Part V may petition the court for the dissolution of the marriage on the ground of—
(a) adultery;
(b) cruelty;
(c) desertion;
(d) exceptional depravity;
(e) irretrievable breakdown of the marriage; or
(f) any valid ground under the customary law of the petitioner .
12. The Marriage Act at section 66 (6) further sets out what constitutes an irretrievable broken down marriage. The section provides:
“( 6) A marriage has irretrievably broken down if—
(a) a spouse commits adultery;
(b) a spouse is cruel to the other spouse or to any child of the marriage;
(c) a spouse willfully neglects the other spouse for at least two years immediately preceding the date of presentation of the petition;
(d) the spouses have been separated for at least two years, whether voluntary or by decree of the court;
(e) a spouse has deserted the other spouse or at least three years immediately preceding the date of presentation of the petition;
(f) a spouse has been sentenced to a term of imprisonment for life or for a term of seven years or more;
(g) a spouse suffers from incurable insanity, where two doctors, at least one of whom is qualified or experienced in psychiatry, have certified that the insanity is incurable or that recovery is improbable during the life time of the respondent in the light of existing medical knowledge; or
(h) any other ground as the court may deem appropriate .
From the averments of the Petitioner, the relationship between the Petitioner and Respondent falls under section 66 (6) (c), (d) and (e). The parties have been apart for over 5 years as at the time the petition was lodged.
13. The constitution and the Marriage Act encourage parties with a marital dispute to consider mediation before lodging the petition for divorce or prior to the determination of the divorce petition. The process is however not mandatory. The wording under section 68 of the Marriage Act is couched in optional terms. The same states thus:
“ Mediation of disputes in Customary marriages
(1) The parties to a marriage celebrated under Part V may (emphasis mine) undergo a process of conciliation or customary dispute resolution before the court may determine a petition for the dissolution of the marriage ”.
14. As already stated, the Respondent, despite service in the primary suit and appeal, neither filed any Answer to the Petition, Replying Affidavit to the Memorandum of Appeal nor attended the hearings. The essence of the same is that the evidence of the Petitioner is thus uncontroverted. Courts have variously and consistently held that uncontroverted evidence is useful and weighty for use by the courts in determining disputes. In the cited case of Mary Nyambura Kangara alias Mary Nyambura Paul vs Paul Ogari Mayaka (2023) KESC 15 (KLR ), the Supreme Court pronounced itself thus:
“ Uncontroverted evidence is weighty and courts will rely on it to prove facts in dispute ”.
15. In that regard, as the pleadings before court were not disputed and the facts before court unchallenged, the trial court had no reason to introduce procedures that neither party had pleaded on in determining the petition herein. That would only be applicable as obiter dicta , but not as the ratio decidendi for the determination.
16. Suffice to state that the trial court did not apply the current law guiding the marriage and dissolution of customary marriages in Kenya, being the Marriage Act and thus fell into the error of determining the petition on the basis of the wrong statute.
17. I will thus be inclined to allow the appeal herein with the following results:
a. The judgment of the trial court delivered on the 31 st day of July 2025 is hereby set aside.
b. The determination of the trial court dismissing the petition herein is substituted with an order allowing the dissolution of the marriage between the Appellant and the Respondent.
c. A Decree Nisi to issue forthwith and a Decree Absolute to issue after 30 days from the date of this judgment.
d. Each party to bear their costs of the suit and appeal .
Dated, signed and delivered virtually via Microsoft Teams this 8 th Day of July 2026.
HCFA NO. E012 OF 2025 DANIEL MUTETO KILATYA VS MARY MBULA NGUNGA JUDGMENT Pg. 5