JGM and CNW began a conjugal relationship in October 2000. In January 2001, they signed a sworn statement declaring that they had married in 1996 under customary law. When CNW gave birth to twins in February 2003, JGM kick her out of his house and she moved to another house owned by JGM.

CNW filed a suit in a Magistrate Court against JGM because he failed to provide her with maintenance and child support. JGM denied the existence of his marriage with CNW and argued he did not have any parental obligations to support his children with CNW because they were born out of wedlock. Under the Children Act of 2001 in Kenya, if a child is born out of wedlock, the mother is the primary person responsible for the child’s care until a court determines the father’s parental responsibility, in accordance with section 25(1) of the Act.

However, the Magistrate established that the combination of the documents submitted by CNW, including the sworn affidavit of marriage and the children’s birth certificates, plus the fact that CNW and JGM had lived together as husband and wife for years and had children, amounted to consider them to be marriage. The magistrate also held that the children’s father had a duty to support his children. In 2004, JGM appealed the magistrate’s decision, which was under review by Kenya’s High Court in this case.