Repugnance to Justice and Morality
However the customary law will be applied only whether it is not repugnant to justice and morality.Even though the Act needs the phrase "and" in relation to "justice and morality" well it appears that "or", rather than "and", was intended.As there in MARIA GISESE ANGOI v MACELLA NYOMENDA when see Civil Appeal number 1 of year 1981 being the judgement of Aganyanya J. delivered at Kisii on date 24/5/1982 the High Court held that Kisii customary law that allows a widow who has no children or who only has female children to enter within an arrangement with a girl's parents and take the girl to be her wife and then to choose a man from amongst her late husband's clan who will be fathering children for her that is the widow, was repugnant to justice its means it denied the alleged wife the opportunity of freely choosing her partner.
So here the Court refused to tagging on the custom and declared which there had been no marriage between the appellant and the respondent. Since a rule of customary law that might be declared to be repugnant to morality is the Masai custom which a husband returning home and finding an age-mate's spear stuck on the entrance to his hut, because of informing him such the owner of the spear is at the moment having an affair into his wife and he should not interrupt or conjugate. Whether the husband cannot take divorce proceedings under Masai customs against his wife for adultery. Thus in the event of such a declaration then a Masai man would be able to petition the court to divorce on the ground of the wife's adultery at common law.