There are different forms of marriages that exist under Customary Law
(i) A monogamous marriage which is a marriage between one man and one woman;
(ii) Polygamy – whereby a man can celebrate marriage with many women at different times.
(iii) Leviratic Marriages – these arise where the husband predeceases the wife and a relative or brother of the deceased husband assumes the role of the deceased. Any children born out of this union are regarded as children of the deceased. This is common among the Meru Kamba Kikuyu Kuria Kisii and Nandi tribes.
(iv) Sororate Unions – where the wife dies before the husband. Her family may offer her younger sister as replacement and the younger sister assumes the role of the deceased wife. This may also arise where the family is unable to return the bride price and offer their daughter as a substitute. Sorarate unions also take place where a wife is not able to have children and she may invite her sister to come and get married by the husband for the purpose of getting children this is common among the Luo.
(v) Widow Inheritance: - this is where the husband predeceases the wife and the wife is inherited by one of the husband’s brothers and for all purposes becomes his wife. It is different from the Leviratic in the sense that any children born out of that union are regarded as children of the brother and not children of the deceased. Luo, Luhya Kalenjin tribes and the Masai.
(vi) Woman to Woman marriages – these arise where a woman is barren and she then marries another woman for the sole purpose of having children and those children become the children of the barren woman who is the husband in the relation. This marriage can take place whether the husband of the barren woman is alive or dead. If the husband is alive the other woman is allowed to have sexual relations with the husband for the purpose of having children. Any children out of this relationship will be regarded as the children of the barren woman. Where the husband is dead she must select a man from the husband’s family or leave the decision to the woman to select whom she wants to have children with. This is common among the Kisii, Taita and Kuria tribes.
(vii) Forcible Marriages – These arise in a family where there are only daughters and the last daughter is not entitled to get married. She remains at home to beget children especially male children with a man of her choice and these children belong to her father’s family. Nandis and Kipsigis practice this.
(viii) Child Marriages – this is where children are betrothed to each other when they are still young and dowry is paid when they are still young and on reaching the age of maturity the bride is then taken to her husband’s home. This was normally done where prominent families wanted to see their friendship or during times of famine. It was common among the Kisii, Kuria, the Kalenjin tribes the Pokot and the Teso.
Can some of these forms be practised in the light of the Judicature Act which is to the effect that customary law will apply insofar as it is not repugnant to justice and morality like child marriages, widow inheritance can be contested as well as the Leveratic unions.
During the colonial times Leviratic marriage arose during the colonial times
Ocharo d/o Oigo v. Ombego Mogoi - is the first case in relation to custom marriages
In this case the Applicant’s husband with whom she had one child died in 1953 and upon his death the Applicant was inherited against her will by the respondent who was a brother of her deceased husband. The union was an unhappy one and the applicant then sought a divorce. The Applicant’s father consented to the divorce and also to her marriage with another man whom she claimed was the father of her second child. The father was also willing to repay the bride price he had received from the deceased husband to the Respondent.
It was held that it was repugnant to natural justice to refuse a divorce to a woman who had been inherited against her will. Custody of the child of her first marriage was given to the Respondent but with regard to the second child the custody was given to the Applicant.
CONDITIONS THAT APPLY WHEN CONTRACTING A CUSTOMARY LAW MARRIAGE.
Insofar as the age of the parties is concerned, the parties need not be of a specific age. Under Customary law what matters is not the age but whether the parties have gone through an initiation ceremony. These initiation ceremonies differ among the communities, for some communities initiation ceremonies is circumcision and other communities have different initiation ceremonies. The age will depend upon the age when the initiation ceremony takes place ranging from 10 to 16 or 17 years.
Insofar as the marital state of marriage is concerned, for a man he may be single or married since customary law allows for polygamy. However women are required to be single and for most African communities, single here means unmarried, if you have been married widowed or divorced you are not considered as single, under customary law marriage is coincided with the marriage of the woman so that once you are married you are considered forever married whether you are divorced or widowed.
Insofar as consent is concerned under customary law consent is required both from the spouses and their families so that the families’ consent is essential in a customary law marriage and there are stages and ways in which this consent is given by the family. However the parties must also consent to the marriage and this was stated in
Mwagiru v. Mumbi
Omondi v. Chum Nyafula
In Mwagiru the Plaintiff sought a declaration that there was a valid subsisting marriage between himself and the defendant under Kikuyu Customary Law. The Defendant alleged that no such marriage existed because she had not given her consent and had not even been present at the essential ceremony. She admitted that she had lived with the Plaintiff for a short time but claimed that she had been forced into doing so by her father. And she also claimed that she had gone through a civil marriage ceremony with another man after she escaped from the Plaintiff and that she was in fact married to this man and not to the Plaintiff.
It was held by the Court that the signifying of consent by the bride is necessary at two ceremonies, which are vital in Kikuyu customary marriages and on the evidence, the Defendant was not present and consenting at any of these ceremonies and the Plaintiff had therefore failed to prove his case.
Finally insofar as capacity is concerned the parties should not marry within the confined degrees of consanguinity and affinity but the degrees differ from community to community and some communities will allow marriage between blood relatives while others will not. For example among the Luhya and Luo a man may marry his wife’s sister even when the wife is still alive, a Teso may take over his father’s wife in a polygamous household while in other communities this is a taboo. So the prohibited degrees vary from community to community.
FORMALITIES IN A CUSTOMARY LAW MARRIAGE
1. The parties have to undergo a betrothal ceremony. And the nature of the ceremony depends on the customs of the parties, for some communities it is a single event for others it is done in stages. For some it is a simple ceremony for others it is a very elaborate affair. Essentially during the betrothal, the intention to get married is expressed and an agreement to that marriage is secured. During the betrothal there may also be exchange of gifts but this is distinguished from dowry. It is just an exchange of gifts.
2. You have the payment of dowry after the betrothal, for a customary law to be valid dowry must be paid and the amount will differ among the communities. For some it is a standard rate for others it is the prevailing commercial rate. For example among the Taveta they have a fixed dowry of one cow, three female goats, two bulls and a home for the bride’s father. The Kisii it depends on how educated the woman is and this determines the rate you pay. It is also dependant on the families involved where you find that if you marry from prominent families the likelihood of paying a higher bride-price exists.
Amulan Ogwang v. Edward Ojok
Deals with bride price the ruling was that under Customary Law there is no marriage until full bride price is paid and in this case the father was entitled to pregnancy compensation because the man had made his daughter pregnant while he had not paid the full bride price.
The institution of bride price has been criticised and cases are also recognised that it may be subject to abuse however initially bride price was paid as a token of mutual appreciation for the bride. It was a way of thanking the parents of the girl for not only bringing up the girl but also for allowing the boy’s family to take her away and it was also compensation in the sense that they were being compensated for the progeny that would go to the boys family with the daughter. Children are closely tied with the bride price and the return of bride price is determined by who will have custody of the children.
Momanyi Nyaberi v. Onwonga Nyaboga
Onchoke vs. Kerebi
These cases deal with the issue of dowry and the courts did recognise that this institution can be abused.
In Momanyi Nyaberi the Applicant applied for a declaration that he was entitled to a woman and the children which he had with her. The woman had been married under Kisii Customary law to the Respondent but could not get any children with him. And under Kisii Customary Law any children which are gotten by a woman with a man other than her husband belong to the husband and the husband refused to divorce the wife insisting that she must stay with him and that the children are his.
It was held that the practice whereby a husband refuses to divorce his wife on the grounds that bride price had not been repaid to him so as to claim the children that she may have was an abuse of customary law and repugnant to natural justice.
In Onchoke Kerebi similar facts . in this case the husband was very forthright and he said that he was claiming the children that his wife had with another man for the bride price that he might expect to receive from the marriage of those children. Infact in this case the man said that he was only interested in the children and not the wife so that he was the one to receive the bride price for those children.
The final formality after payment of dowry is the celebration of the marriage itself and under Customary Law this can be in 3 ways
1. The marriage can be celebrated through a formal ceremony according to the recognised practices and customs of the community;
2. Through cohabitation so that once the parties start cohabiting the marriage is deemed to have been celebrated
3. by way of elopement or capture.
WHAT MATRIMONIAL RIGHTS AND DUTIES ARISE UNDER CUSTOMARY LAW
Normally both parties have the right to consortium however the rights that arise from this consortium will vary between the husband and the wife. On the part of the man, he has a duty to provide shelter for his wife and children. The man must have a house.
Secondly the man is also the guardian of his wife and children. He is the one to sue or be sued on their behalf and is the one who will represent them in any formal ceremonies. Hence the custom in customary law that wife and children are to be seen and not to be heard.
The husband has the sole right to sexual intercourse with his wife and can claim compensation from a man who commits adultery with his wife. The person who pays the compensation differs from community to community, it could be the adulterer or the father of the woman who commits the adultery.
Among the Maasai the husband may allow the wife to have sexual intercourse with members of his age group but he reserves the right to object to any member of that age group.
The husband has the duty to maintain his family and to ensure that they have adequate food and clothing
Muli v. Githuka
The husband reserves the right to chastise his wife where she has wronged him however excessive beating is not allowed in customary law. What is unjustified excessive beating? Can any beating ever be justified?
On the part of the wife her duties include cultivating any fields given to her b y the husband.
Maintaining the household including preparing the food for her family and bearing and looking after her children.
In the event of a divorce, the husband’s duty to maintain the wife ceases because once the divorce, she returns to the parents and is now the parents responsibility and no longer the husband’s.