JUDGMENT OF THE COURT
H O A who is the respondent in this appeal (the husband) and R A O, the appellant (the wife) were married in November 1979 at Homa Bay under the Luo customary law. On 3rd January 1981, they went through a civil ceremony under the Marriage Act (Cap 150). They cohabited at various places and had 3 daughters, namely, G A (born 11th March, 1981), E A (born 6th June, 1983) and L A (born 24th July 1984).
In December 1990 the husband presented a petition for divorce in the superior court alleging cruelty, adultery and desertion. The husband asked for the dissolution of the marriage and for custody of the three children of the marriage. The wife did not enter an appearance and did not contest the husband's petition for divorce. Mango, J. granted the husband a decree nisi and postponed a decision on custody, saying:
"Now remains the more difficult issue of custody. Since about 1987, the petitioner has not effectively stayed with the children of the marriage. Being all female…