For ten years, he believed he had a wife. They lived under one roof, shared a bed, meals, a bathroom, a kitchen, and all the small pleasures of domestic life.

Their union even bore fruit in the form of two children. To him, this was marriage.

But when love soured and he turned to the courts seeking a divorce, the unexpected happened: judges declared that there had never been a marriage at all. Not even a come-we-stay, let alone a customary union.

This is the extraordinary case of MG and BW, whose lives became the subject of a legal battle that peeled back layers of love, cohabitation, custom and law.

In 2019, the man codenamed MG in court sued BW, asking for a divorce. He leaned on the presumption of marriage, bolstered by what he claimed were Kikuyu traditions.

His account was that he moved in with BW in 1993, living with her for a decade in her house at King’ong’o Church View Estate. He told the court that they had two children together, and that he had performed the requirements of Kikuyu marriage, including paying Sh20,000 dowry to her family.

He even produced an obituary that, he argued, proved he had been recognised as an in-law. To MG, this was enough to prove that he was BW’s husband.

But the story did not end there. He accused BW of straying, alleging she had taken up with another man, FR ERM, in 2013. On this basis, he asked for dissolution of the marriage and compensation from both her and the alleged lover.

Yet, the lower court threw out his petition, ruling there had been no marriage in the first place. MG, stung by the decision, appealed to the High Court before Justice Maureen Odero, listing ten grievances. Chief among them was his claim that the magistrate had overlooked the decade he had lived with BW and the children.

Court rules man was never married despite 10 years of cohabitation with woman, 2 children

BW, however, hit back. She denied that there had ever been a valid or recognisable marriage, and rubbished allegations of infidelity. Yes, she conceded, MG had lived with her for ten years, and yes, their two children were his. But that, she insisted, did not translate into marriage.

Justice Odero agreed.

Central to her ruling was the question of Kikuyu custom. While MG claimed to have paid dowry, he brought no witnesses to prove it. More importantly, he failed to show that the critical ceremony of Ngurario, which seals a Kikuyu marriage, ever took place.

“The central feature of any Kikuyu customary marriage is the Ngurario ceremony,” ruled Justice Odero. “The appellant did not claim, much less prove, that such a ceremony ever took place. I find and hold that the evidence adduced by the appellant was not sufficient to prove on a balance of probability that he entered into customary marriage with the first respondent.”

The judge then turned to the issue of presumption of marriage by cohabitation. Could MG and BW be considered husband and wife simply because they had lived together for a decade and had children?

Justice Odero said no.

Cohabitation, she explained, must be weighed in both quantitative and qualitative terms. The length of time a couple lives together is only one measure.

The other is how they conduct themselves, whether they are recognised by society as husband and wife, whether they raise children together openly, whether they operate businesses jointly, take loans as a couple, or hold joint bank accounts.

In MG and BW’s case, while they had indeed lived together and had children, there was no evidence of the qualitative aspects. No witnesses testified that they were known as husband and wife. No joint businesses or jointly acquired assets were presented.

“The fact that the appellant and the first respondent cohabited for a long period of time and the fact that they bore two children together does not lead to a presumption of marriage,” the judge said. “The qualitative aspect of a marriage has not been proved.”

Even the obituary MG presented as proof collapsed under scrutiny. He failed to call anyone to confirm it. His allegations of adultery against BW also fell apart, with the court noting that he made no effort to prove them.

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Perhaps most damaging to his case was his own uncertainty. The judge pointed out that MG seemed unsure of the kind of marriage he claimed to have contracted.

“Once again, I reiterate that the fact that the appellant did not himself appear to be sure of what type of marriage he had contracted is a pointer to the fact that no marriage existed between the two,” ruled Justice Odero. “The appellant was merely groping in the dark. With respect to the allegations of adultery with the second respondent, no effort was made to prove the said allegations during the trial.”

In the end, the High Court dismissed MG’s appeal and ordered him to pay the costs.