AKO v BKO (Civil Appeal 106 of 2011) [2014] KECA 392 (KLR)
The bottom line
#The Court of Appeal dismissed AKO's land claim, confirming second appeals only address legal errors, not facts, and customary marriages must be proved with evidence.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appellant and the respondent were both married to Birita in a woman to woman marriage arrangement under Abagusii customary law
- 2.Whether this Court, on second appeal, could interfere with the concurrent findings of fact of the two courts below
Key legal issues
#Scope of a second appeal under Section 72(1) of the Civil Procedure Act
A second appeal to the Court of Appeal must be on a question of law; findings of fact by the two courts below are not open for re-evaluation unless based on a misapprehension of the evidence.
The court set out the three grounds in Section 72(1) of the Civil Procedure Act and held that a plain reading confines second appeals to questions of law. It relied on its prior decisions, including Naomi Kemunto v Total (K) Limited and Kitivo v Kitivo, and confirmed that where the first appellate court admirably re-appraised the evidence and reached its own independent conclusion, the second appellate court cannot interfere.
Proof of woman to woman marriage under Abagusii customary law
Whether a customary marriage existed, and whether a custom has the binding force of law, are questions of fact to be proved by evidence; on the evidence the two courts below concurred that no woman to woman marriage existed between the appellant and Birita.
The court explained that customary law consists of customs and usages that have acquired the binding force of law within a community, and that a party relying on a custom must lead evidence of it. Here, Birita denied marrying the appellant; the appellant's own uncle confirmed she was already married to Makori Onguso; a children's officer's evidence showed a prior claim was dismissed on that basis. The concurrent findings were properly grounded in the evidence.
Constitutional obsolescence of woman to woman marriage
Under the Constitution of Kenya, 2010, and the Law of Succession Act, daughters inherit equally with sons, so the practice of woman to woman marriage to perpetuate a lineage can only diminish in significance.
The court observed obiter that the purpose of woman to woman marriage among the Abagusii was to perpetuate the lineage of a son-less or barren woman, a practice reflecting discrimination in favour of male children. The Law of Succession Act removed the distinction between sons and daughters of an intestate, and Articles 60(1)(f) and 27 of the Constitution guarantee elimination of gender discrimination in land matters and equal treatment, making such practices constitutionally untenable.
Legal principles established
#- A second appeal to the Court of Appeal lies only on questions of law; complaints regarding facts do not ordinarily fall for consideration under Section 72(1) of the Civil Procedure Act.
- The Court of Appeal will not interfere with findings of fact of the two lower courts unless it is clear that the magistrate and the judge have so misapprehended the evidence that their conclusions are based on incorrect bases.
- A party relying on a custom or usage as having the force of law must lead evidence to demonstrate that it has acquired such binding force; whether a custom is binding is a question of fact.
- On a second appeal, the Court's duty is not to re-evaluate the evidence but to consider whether the first appellate court carried out its function of re-appraisal of the evidence.
Court orders
#- 1.The appeal was dismissed with costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kisii
- Civil Appeal No. 132 of 2008
- Jurisdiction invoked
- Section 72(1) of the Civil Procedure Act (Cap 21, Laws of Kenya) - second appeal from the High Court
Relief refused
#Appellant's claim to be a co-wife of the respondent in a woman to woman marriage with Birita and to a half share of the suit premises held in trust for her
The appellant failed to prove the alleged marriage; the two courts below made concurrent findings of fact that no such marriage existed and that she was already married to one Makori Onguso
Costs
The appeal was dismissed with costs to the respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
A plain reading of these provisions, shows that a second appeal to this Court should be on a question of law and complaints regarding facts do not ordinarily fall for consideration.
We have no doubt in our minds that the first appellate court admirably re-appraised the evidence and arrived at its own independent conclusion on the same. We cannot therefore interfere.
We find no merit in it and the same is dismissed with costs to the respondent.
So, given the above provisions of the Supreme Law, the practice which compelled Birita to enter into a woman to woman marriage with the respondent in order to have sons can only diminish in significance.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "AKO v BKO (Civil Appeal 106 of 2011) [2014] KECA 392 (KLR)", Case Analysis (2014). Civil Appeal ( Kisumu ). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/392/eng@2014-09-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.