Divorced? Return the cows: Kenyan court ruling on dowry sparks debate for South Sudan

Divorce in Kenya just got more expensive for women, and the ruling has South Sudanese asking one big question: if the marriage ends, who pays back the cows?

In a judgment delivered by Justice DKN Magare of the High Court in Kisii, the court ruled that a divorced wife must return the dowry paid for her, even though the bride price was originally paid to her parents, not to her.

“Whether she returns it or her father, it is irrelevant”

The case, CKN v DMO (Civil Appeal 21B of 2022), involved a couple married both under Kisii customary law and in a Christian ceremony. The judge said each marriage must be undone in its own way: the church marriage by returning the marriage certificate, and the traditional marriage by returning the dowry.

“The traditional marriage is cancelled by return of dowry,” the judge wrote. “Whether the same is returned by her or her father, it is irrelevant.” The woman, the court said, is free to go after her own parents later to recover what they received.

In other words, if a husband paid KSh 1.2 million, that money goes back. If he paid 50 cows and 100 goats, the same number of animals, or their value today, goes back.

Alimony “no longer a reality”

The court went further, declaring that alimony, the payments men traditionally make to support ex-wives, no longer has a place in Kenya. The judge said the 2010 Constitution’s Article 45, which gives husbands and wives equal rights before, during and after marriage, ended the old idea that a man must keep supporting his former wife.

“The reality of the concept of alimony is that it was based on the concept that the men and women were not equal,” the ruling states.

What would this mean in South Sudan?

For South Sudanese, the debate hits close to home. Across Dinka, Nuer, Bari, Zande, Shilluk and many other communities, bride wealth is paid in cattle, sometimes dozens or even hundreds of heads, and is shared among the bride’s extended family: fathers, uncles, brothers and cousins.

Under many customary courts, a divorce is in fact only complete once cattle are returned, often minus a number for each child born in the marriage. But in practice, the cows have long been eaten, sold or paid out again as dowry for the bride’s brothers’ marriages.

So imagine the Kenyan approach in Juba or Bor: the woman, not her family, being held personally responsible for returning 80 cows she never owned.

• Is it fair to make a woman repay cattle that were shared by her relatives?
• Should the number of children she bore reduce the debt?
• Does returning dowry protect families, or does it trap women in bad marriages because they can never afford to leave?
• And with Kenya scrapping alimony in the name of equality, should South Sudan’s statutory courts follow?

The ruling only applies in Kenya, but with so many South Sudanese families living, marrying and divorcing across the border, the question is far from academic.

Over to you: if a marriage ends in South Sudan, should the wife return the cows? Tell us in the comments.

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Divorced? Return the cows: Kenyan court ruling on dowry sparks debate for South Sudan

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