MWAGIRU v MUMBI
HIGH COURT OF KENYA [1967] E.A. 639
JUDGEMENT
Miller J: In this suit the plaintiff, George Njau Mwagiru, a businessman carrying on business
in Nairobi, is seeking a declaration hat there is a valid and subsisting marriage between himself
and the defendant Mary Goretti Mumbi daughter of Charles Kigwe, the said marriage having
been regularly performed according to the rules, rites and ceremonies demanded by Kikuyu
Custom. It is not in dispute that the plaintiff and defendant are both of the Kikuyu tribe and
capable of acquiring marital status according to their tribal custom. It is the contention of the
defendant, however, that she was never a party to any arrangement for the marriage alleged by
the plaintiff, that her consent was never sought or given and, more particularly, that she was not
even present at the vital stage in the chain of events necessary to constitute a valid Kikuyu
customary marriage; but that she was forcibly taken by her father against her will to live with
the plaintiff at the plaintiff’s house whence she escaped after a few days.
It has been shown in evidence that the defendant went through a form of marriage before the
District Commissioner, Nakuru, with one Raphael Mugwanja on February 15 1966, a matter of
about thirty eight days after the defendant was in fact taken to the plaintiff’s house by her father
pursuant to the alleged Kikuyu customary marriage.
It is perhaps worthwhile to point out that this suit and indeed the task of the court do not in any
way entail a comparative study of historical or sociological concepts touching the two forms of
marriage involved in the case. Marriage by Kikuyu custom or under the Marriage Act can result
in perfectly valid marriages providing there has been compliance with the rules which govern
each form of marriage. Moreover, there are legal penalties for certain acts which amount to
failure to recognise validly created marriages under Native Law and Custom as well as under
the Act. Section 35 (1) of the Marriage Act Cap 150 provides:-
No marriage in Kenya shall be valid which, if celebrated in England, would be null and void on the
ground of kindred and or affinity, or where either of the parties thereto at the time of the celebration of
such marriage is married by native law or custom to any person other than the person with whom such
marriage is had.
The duty of the court in this case is to decide whether as a matter of fact the alleged Kikuyu
Customary marriage was regularly performed and was subsisting at the time when the
defendant went through the form of marriage before the District Commissioner at Nakuru. If
the decision is in the affirmative, the marriage before the District Commissioner is prima facie
invalid as an ensuing legal consequence upon examination of its regularity per se.
The plaintiff was supported in evidence by the defendant’s father and one of the latter’s
nephews, the defendant’s mother and the plaintiff’s first or senior wife. The plaintiff stated that
, he has been a friend of the defendant’s father for a long time and came to love the defendant.
He put it thus:-
From a long friendship I had with the father I came to love the defendant. The friendship started at the
beginning of 1965. I think after a long time that I should inform the parents according to our Kikuyu
custom. On August 22, 1965, I took njũrio to the house of the defendant. Before August 22, 1965, before
I did this, I had talked with her on August 10. We agreed then to marry each other that is why I took the
Kikuyu token to the parents as is our custom. I found her father and mother because the old man has more
than two wives. I asked him to call the other two wives into the house. I do not know the name of the
defendant’s mother but I know the names of the other two.
Led by his counsel the plaintiff continued:
Gladys Wambui is the name of the real mother of the defendant. When I mentioned the cause of my beer,
the father sent for the closest man of the relatives. I told them that that day’s beer which I took there was
not the ordinary beer but to inform the father that it was because of asking the girl’s hand. The closest
man who was called came. His name is Henry. They then told me to put it properly to Henry what the
beer was for. I told him: This beer is here before you because after a long friendship with one of your
daughters, the daughter and myself agreed that she would marry me if you would like it. So I brought this
beer here as njũrio. They then spoke to one another rand said they could not decide it until they called the
daughter. They called her and explained the reason why we were there and the beer was there. They
asked her whether she would like to marry me. She said she would like to marry me and they could drink
the beer from her own permission. They drank the beer as well as myself. May did not drink. She just
said…(Witness indicated NO by sign of hand and continues). I went that day with my first wife and one
Silas. After the drinking, the man who was called told me also the girl’s father said that the door was
open. We went back to our home leaving Mary. In our custom there is also the question of dowry called
rũracio. I told them to give me time and I would bring this. After this we had several parties either at
mine or the girl’s house. It was for me to mention when I was ready to pay the dowry. All the time I was
preparing the dowry. After a few months I mentioned the day as December 26, 1965. I sent Silas with this
message to the girl’s father. After they accepted that day, I sent one big ram and a sheep to mark the
ceremony. On December 26, 1965, I went there and asked them to tell me the number of goats they
would like me to pay. They said fifty goats and I should prepare some more gifts, i.e., an axe, a basket, a
pot, a blanket, a sheet and a simi. I did not have actual goats. I had money so I paid them £50 instead of
goats and Shs.300/= in lieu of the gifts. This is permissible. They said that they must kill the ram and
witness the dowry. This signifies pouring out the blood of unity. We killed the ram and before we did this
my first wife called at the ceremony and allowed them to kill the ram. She said: “As I said the first day
you carry on.” They then asked me to bring honey. They call it ũũkĩ. I bought them many calabashes,
English beer and whisky. We drank until the small hours of the morning. Having done this, it was for me
to go and send njũhoye and mũirĩtu. All of this was performed at Gatitũ in the house of the defendant’s
father. He had three large stone buildings in the same compound. Before December 26 the defendant and
I used to meet privately and have discussion. According to our custom she is not my wife until she comes
to my house; this should have been on January 1, 1966. On this day, I took local beer to the house to
signify that from that day the defendant should be my wife. I did not take her to my house that day but on
January 8, 1966. My house is about thirty miles away from the father’s house. I asked the father or the
family to help remove the girl to my house. The father has a Mercedes car. I thought it was nice for her to
come in that as I only have a Peugeot. The father did this. He had a few members of his family with them.
I am surprised to hear that the defendant said she was brought by force. The father brought her about
noon and stayed until about 6p.m. We sat in the sitting room speaking. Defendant was happy and in a
good mood. She stayed and after one week on January 15 at my shop in Bazaar Street, Nairobi, she
escaped. After that day she did not return to my shop. She used to go to the market from my shop and
return but this day she did not return. For the week she was with me we stayed as man and wife: she
performed each and every duty as a wife. It isn’t true that she did not cohabit with me during that period.
Defendant is the person who gave parents her consent after consenting to me. Since January 15, 1966, I
have not seen her until today, but I heard that she went through an English marriage at Nakuru. I
2 Njeri Kang’ethe
Lifted from An Introduction to the Legal
System in East Africa, Harvey, W.B., East
African Literature Bureau, Nairobi, Kenya
1975
HIGH COURT OF KENYA [1967] E.A. 639
JUDGEMENT
Miller J: In this suit the plaintiff, George Njau Mwagiru, a businessman carrying on business
in Nairobi, is seeking a declaration hat there is a valid and subsisting marriage between himself
and the defendant Mary Goretti Mumbi daughter of Charles Kigwe, the said marriage having
been regularly performed according to the rules, rites and ceremonies demanded by Kikuyu
Custom. It is not in dispute that the plaintiff and defendant are both of the Kikuyu tribe and
capable of acquiring marital status according to their tribal custom. It is the contention of the
defendant, however, that she was never a party to any arrangement for the marriage alleged by
the plaintiff, that her consent was never sought or given and, more particularly, that she was not
even present at the vital stage in the chain of events necessary to constitute a valid Kikuyu
customary marriage; but that she was forcibly taken by her father against her will to live with
the plaintiff at the plaintiff’s house whence she escaped after a few days.
It has been shown in evidence that the defendant went through a form of marriage before the
District Commissioner, Nakuru, with one Raphael Mugwanja on February 15 1966, a matter of
about thirty eight days after the defendant was in fact taken to the plaintiff’s house by her father
pursuant to the alleged Kikuyu customary marriage.
It is perhaps worthwhile to point out that this suit and indeed the task of the court do not in any
way entail a comparative study of historical or sociological concepts touching the two forms of
marriage involved in the case. Marriage by Kikuyu custom or under the Marriage Act can result
in perfectly valid marriages providing there has been compliance with the rules which govern
each form of marriage. Moreover, there are legal penalties for certain acts which amount to
failure to recognise validly created marriages under Native Law and Custom as well as under
the Act. Section 35 (1) of the Marriage Act Cap 150 provides:-
No marriage in Kenya shall be valid which, if celebrated in England, would be null and void on the
ground of kindred and or affinity, or where either of the parties thereto at the time of the celebration of
such marriage is married by native law or custom to any person other than the person with whom such
marriage is had.
The duty of the court in this case is to decide whether as a matter of fact the alleged Kikuyu
Customary marriage was regularly performed and was subsisting at the time when the
defendant went through the form of marriage before the District Commissioner at Nakuru. If
the decision is in the affirmative, the marriage before the District Commissioner is prima facie
invalid as an ensuing legal consequence upon examination of its regularity per se.
The plaintiff was supported in evidence by the defendant’s father and one of the latter’s
nephews, the defendant’s mother and the plaintiff’s first or senior wife. The plaintiff stated that
, he has been a friend of the defendant’s father for a long time and came to love the defendant.
He put it thus:-
From a long friendship I had with the father I came to love the defendant. The friendship started at the
beginning of 1965. I think after a long time that I should inform the parents according to our Kikuyu
custom. On August 22, 1965, I took njũrio to the house of the defendant. Before August 22, 1965, before
I did this, I had talked with her on August 10. We agreed then to marry each other that is why I took the
Kikuyu token to the parents as is our custom. I found her father and mother because the old man has more
than two wives. I asked him to call the other two wives into the house. I do not know the name of the
defendant’s mother but I know the names of the other two.
Led by his counsel the plaintiff continued:
Gladys Wambui is the name of the real mother of the defendant. When I mentioned the cause of my beer,
the father sent for the closest man of the relatives. I told them that that day’s beer which I took there was
not the ordinary beer but to inform the father that it was because of asking the girl’s hand. The closest
man who was called came. His name is Henry. They then told me to put it properly to Henry what the
beer was for. I told him: This beer is here before you because after a long friendship with one of your
daughters, the daughter and myself agreed that she would marry me if you would like it. So I brought this
beer here as njũrio. They then spoke to one another rand said they could not decide it until they called the
daughter. They called her and explained the reason why we were there and the beer was there. They
asked her whether she would like to marry me. She said she would like to marry me and they could drink
the beer from her own permission. They drank the beer as well as myself. May did not drink. She just
said…(Witness indicated NO by sign of hand and continues). I went that day with my first wife and one
Silas. After the drinking, the man who was called told me also the girl’s father said that the door was
open. We went back to our home leaving Mary. In our custom there is also the question of dowry called
rũracio. I told them to give me time and I would bring this. After this we had several parties either at
mine or the girl’s house. It was for me to mention when I was ready to pay the dowry. All the time I was
preparing the dowry. After a few months I mentioned the day as December 26, 1965. I sent Silas with this
message to the girl’s father. After they accepted that day, I sent one big ram and a sheep to mark the
ceremony. On December 26, 1965, I went there and asked them to tell me the number of goats they
would like me to pay. They said fifty goats and I should prepare some more gifts, i.e., an axe, a basket, a
pot, a blanket, a sheet and a simi. I did not have actual goats. I had money so I paid them £50 instead of
goats and Shs.300/= in lieu of the gifts. This is permissible. They said that they must kill the ram and
witness the dowry. This signifies pouring out the blood of unity. We killed the ram and before we did this
my first wife called at the ceremony and allowed them to kill the ram. She said: “As I said the first day
you carry on.” They then asked me to bring honey. They call it ũũkĩ. I bought them many calabashes,
English beer and whisky. We drank until the small hours of the morning. Having done this, it was for me
to go and send njũhoye and mũirĩtu. All of this was performed at Gatitũ in the house of the defendant’s
father. He had three large stone buildings in the same compound. Before December 26 the defendant and
I used to meet privately and have discussion. According to our custom she is not my wife until she comes
to my house; this should have been on January 1, 1966. On this day, I took local beer to the house to
signify that from that day the defendant should be my wife. I did not take her to my house that day but on
January 8, 1966. My house is about thirty miles away from the father’s house. I asked the father or the
family to help remove the girl to my house. The father has a Mercedes car. I thought it was nice for her to
come in that as I only have a Peugeot. The father did this. He had a few members of his family with them.
I am surprised to hear that the defendant said she was brought by force. The father brought her about
noon and stayed until about 6p.m. We sat in the sitting room speaking. Defendant was happy and in a
good mood. She stayed and after one week on January 15 at my shop in Bazaar Street, Nairobi, she
escaped. After that day she did not return to my shop. She used to go to the market from my shop and
return but this day she did not return. For the week she was with me we stayed as man and wife: she
performed each and every duty as a wife. It isn’t true that she did not cohabit with me during that period.
Defendant is the person who gave parents her consent after consenting to me. Since January 15, 1966, I
have not seen her until today, but I heard that she went through an English marriage at Nakuru. I
2 Njeri Kang’ethe
Lifted from An Introduction to the Legal
System in East Africa, Harvey, W.B., East
African Literature Bureau, Nairobi, Kenya
1975
