Divorce under Customary law can be both judicial or extra judicial and just like Islamic Law before the parties are divorced there is a reconciliation process whereby the elders seek to reconcile the parties. It is only after reconciliation has failed that the elders may dissolve the marriage.
Not all Kenyan communities practice divorce. There are some communities that do not recognise divorce at all for example the Kuria community to a certain extent the Kisii community as well.
EXTRA JUDICIAL DIVORCE
This may be initiated by the Husband or the wife or even by the wife’s family. The husband initiates it by chasing away his wife by telling her to return to her parents home. He is also required to inform her parents that he intends to be separated or divorced from their daughter.
The wife may also initiate divorce by voluntarily leaving her husband’s home and returning to her parents while the wife’s family can also initiate divorce especially where the husband has refused to pay the full bride price and they go and get their daughter.
Under customary law, return of the bride prices symbolises a valid divorce but this will depend on whether there are any children of that marriage. If the husband retains custody of the children no refund of the bride price is due. Where the mother seeks to retain custody of the children, then the bride price returned will depend on the number and gender of the children.
Where the wife initiates the divorce, the full bride price is due. And among some communities where the husband has initiated the divorce and the wife remarries then her new husband refunds him the bride price.
In order for the elders to dissolve a marriage, they have to be satisfied that certain factors have taken place which are sufficient enough for a party to seek divorce. This include
1. Refusal to have sexual relations for no good reasons;
3. Wilful desertion;
4. Habitual theft;
6. Excessive physical cruelty;
7. Failure of the husband to maintain his wife and children
8. Adultery on the part of the wife
9. Impotence on the part of the husband although some communities allow an impotent man to allow his close relatives or friends to have sexual relations with his wife (barrenness of the wife is not a ground for divorce this is because African Customary Law allows for polygamy)
A Judicial divorce will only take place where a party has refused to comply with an extra judicial divorce e.g. where the husband refused to accept return of the bride price or where the wife refuses to leave her matrimonial home.
All the grounds listed in the extra judicial will be used and under Section 9 of the Magistrates Court Act the court is entitled to hear claims arising out of marriage or divorce under customary law and the courts are required to determine the cases before them in accordance with the Customary Law of the parties. Normally the courts will insist on reconciliation procedures and it is only after prove that reconciliation has failed will the courts proceed to hear the divorce and grant it.
Divorce Cases arising under Customary Law in Cotran’s Book
1. Leonita Salume V. Captan Nyongesa
It was claimed that the husband had failed to maintain the wife and the children. In
Isaiya Bedi vs. Ether Munyasia
The claim was the wife’s cruelty and the husband brought evidence to show that the wife had arranged for members of the public to give him a thorough beating and on top of that she had borne a child with another man.
Okutoyi v. Nyongesa
Habitual theft of chicken. The wife stated that in addition to the husband being cruel every time he came home with chicken which had been unlawfully obtained.