What you once knew as a cultural symbol of honour has now become a legal trap, one that could fuel gender-based violence, deepen poverty and endanger women’s health.
The question of whether a Kenyan woman’s family must legally refund the bride price when a customary marriage ends is highly contentious, pitting long-held cultural traditions against modern constitutional rights to gender equality and dignity.
In many communities, the bride price-once livestock, now often cash or goods-is the act that formally seals the marriage, with ceremonies like the Luo (Ayie), Kikuyu (Ruracio) or Kalenjin Koito treated with great seriousness. But the 2023 High Court ruling enforcing its refund risks trapping women in abusive marriages and driving families into poverty-related illness.
The requirement for a refund is routinely weaponised by abusive husbands or in-laws, functioning as a financial trap that forces women back into physically, emotionally, or sexually abusive marriages. By enforcing repayment, the law validates the notion of the woman as a “purchased asset,” intensifying the husband’s entitlement and increasing his propensity for violence.
Research on domestic violence in Kenya by Joy A. Otolo and published in the International Journal of Scientific and Research Publications in 2020,affirms that the transactional nature reinforced by cultural practices contributes to the perception of women as property, which is a known driver of violence.
The prolonged state of fear, helplessness, and conflict associated with being trapped or negotiating the refund manifests physically as hypertension, cardiovascular problems, and a weakened immune system, leading to long-term chronic illness.
Pressure can lead to chronic anxiety, clinical depression, suicidal ideation
The burden of the refund demand inflicts profound psychological damage on the woman seeking freedom. The guilt of burdening one’s family with debt, coupled with the loss of agency over one’s life, are key mental health determinants. This pressure can rapidly lead to chronic anxiety, clinical depression, and suicidal ideation, requiring urgent clinical intervention.
Research from conflict-affected settings, whose stress mirrors that of divorce negotiations, shows that bride price obligations are linked to women’s anger, mental distress, family conflict and a deep sense of injustice, according to a 2016 study led by Susan Rees and published in BMJ Global Health. This psychological distress underscores the urgency of addressing the refund practice in Kenyan policy.
The refund demand rarely affects the divorcing woman alone; it impacts her entire family, which is forced to sell essential assets like land and livestock to repay the debt. This sudden loss of economic security is a critical Social Determinant of Health (SDH), linked to malnutrition, poor living conditions, and the inability to afford necessary healthcare.
The resulting economic strain directly harms the health of the woman’s children, siblings, and ageing parents through reduced food security, withdrawal from school, and failure to pay for medical treatments.
A woman imprisoned in a marriage due to financial fear may be denied autonomy over her health, including reproductive health decisions concerning contraception and pregnancy spacing.
The High Court in Kisii affirmed that in customary marriages, dowry must be refunded
This lack of autonomy leads to uncontrolled fertility, closely spaced pregnancies, and increased vulnerability to unsafe abortions due to an inability to negotiate family planning, all of which carry direct maternal health implications.
A key recent development has brought legal clarity to this cultural practice, albeit one with contentious implications for gender equality and public health. In the case of CKN Vs DMO (2023), the High Court in Kisii affirmed that in customary marriages, dowry must be refunded upon divorce to symbolise the union’s dissolution.
Justice Kizito Magare upheld the earlier ruling requiring the woman (appellant) to refund the dowry under Kisii customary law. The court stressed that the wife is responsible for returning it even if her parents originally received the payment, though she can later recover the amount from them. This decision creates a major precedent by giving legal force to a custom previously handled by elders, turning it into a tool of coercive control with clear public health risks.
The court also addressed alimony. It held that alimony is no longer compatible with Kenya’s legal framework, citing Article 45(3) of the Constitution, which guarantees equal rights during marriage and at its dissolution. Because alimony is rooted in patriarchal assumptions of unequal spouses, the court deemed the concept obsolete.
But in practice, this creates a troubling contradiction. The court rejects alimony in the name of equality, yet upholds a dowry refund requirement that undermines substantive equality and threatens women’s rights to health and dignity under Articles 43 and 28. The refund requirement also clashes with the Matrimonial Property Act, 2013, which mandates that marital property be divided according to each spouse’s contributions, including domestic work, child care and emotional support.
The strongest objection to bride price refund is that it reduces the woman to a transactional commodity
A woman may have spent 20 years running the home and raising children, enabling her husband’s economic success. The law recognises this unpaid labour when dividing property, yet the simultaneous demand to refund the bride price erases its value, forcing her family into debt to secure her freedom and effectively punishing her for years of contribution.
The strongest objection to the legal refund requirement is that it reduces the woman to a transactional commodity, violating Article 28 on human dignity. It implies that, because the marriage “ended,” the payment must be reversed, a message the Ugandan Supreme Court rejected in 2015 when it outlawed refunds, saying they treated women as “some sort of loan.” This commodification inflicts psychological harm, undermines self-worth, and weakens the woman’s ability to make healthy choices.
Kenya’s marriage laws remain a complex mix of statutes, religious rules and diverse customs. While the Marriage Act, 2014, sought to harmonise these systems, the bride price refund remains anchored in customary law, where it continues to carry heavy legal weight.
Dr Madeline Iseren is a Pharmacist and columnist on topical health and medical issues.
