FAMILY LAW: GROUP 1 PRESENTATION.

Victoria Odinga Opoti LAW/MG/1423/09/22

Hiltruda Nyokabi LAW/MG/2969/09/22

Brian Njagi LAW/M/2300/09/22

Nasra Omar LAW/MG/2649/09/22

Esther-Blessing Nasimiyu LAW/MG/3137/09/22

Victoria Okeke Ogochukwu LAW/M/1919/09/22

Khadija Instisar Abdillahi LAW/M/2585/09/22

Winnie Njuguna LAW/MG/2417/09/22

Discussion questions

1. Discuss the laws governing marriage before Marriage Act ,2014 – just list the cap and
what they briefly dealt with

2. Problems that arose from multiplicity of the above laws

3. Briefly discuss the laws that applied in the division of matrimonial property before
enactment of the Matrimonial Property Act, 2013

4. Reasons/imperatives for reform (Why was there a need for the past family laws to be
repealed )

5. Jurisprudence on Marriage Act, 2014

QUESTION 1

STATUTE DESCRIPTION

Marriage Act Cap 150 Applied generally to all types of marriages;

Civil, christian, Islamic, Hindu and customary

African Christian Marriage and Divorce Act It replaced the Native Christian marriage
Cap 151 ordinance

Applied to Africans whom either or both

professed christianity and also dealt with the
dissolution of such marriages

Matrimonial Causes Act Cap 152 Deals with the divorce proceedings in courts

It applied to those married under the marriage

act and african christian marriage and divorce

It was based on the English Supreme Court of

judicature(consolidation act) and Matrimonial
causes act of 1937

Subordinate courts(Separation and It provides for the jurisdiction of subordinate

maintenance act) Cap 153 courts of the first class to listen to cases and
give orders with regards separation and
maintenance

Provides additional relief to the monogamous

marriages

Maintenance Orders Enforcement act Cap 154 It ensured the enforcement of the
maintenance orders rendered in the UK or
Sec 2: “maintenance order” means an order, Eire or in certain British possessions, and vice
other than an order of affiliation, for the versa
periodical payment of sums of money towards
the maintenance of the wife or other
dependants of the person against whom the
order is made, and includes an order or decree
for the recovery or repayment of the cost of
relief or maintenance;

Mohammedan marriage and Divorce Provides for the registration of Islamic

registration Act Cap 155 marriages and divorces.

Mohammedan marriage, divorce and Enacted after the case of Fatma binti Athuma
succession act Cap 156 v Ali Baka (1918) 7 EALR 171 where it was
 held that marriages in Islamic law that were
not in accordance with the marriage act were
deemed not be in accordance with the law of
the protectorate (Report of the commission on
the law of marriage and divorce)

Hence the enactment of a law that applies

retrospectively and will allow Islamic
marriages to be deemed valid throughout
Kenya.

Hindu Marriage and Divorce act Cap 157 An Act to regulate the marriage of, and
provide for matrimonial causes between,
Hindus and persons of allied religions ie
Buddhists, Sikhs and Jains

Hindu succession act Cap 158 Replaced the Hindu(Marriage, Divorce and
Succession) ordinance of 1946 on matters
succession

These laws were consolidated and harmonized under the Marriage Act of 2014 to provide a
unified legal framework for marriage in Kenya.

QUESTION 2

Continued Application of English Family Law

Traditionally, English law has been applied in various areas of family law in 3 ways:

a. Application of English Common Law Presumptions

Application of common law provisions in the form of common law presumptions has
characterised legal practice in Kenya. The following are illustrative:

➢ Common Law Rights of a Wife to Pledge the Husband’s Credit: This has been applied
in Kenya in a number of cases. The presumption is that when a wife acquires goods on credit,
she is deemed to be acting as the husband’s agent and the husband will be liable to pay
(Patterson v. Nanyuki General Stores; Ramji Dass Co. v. McDonald). In Ramji Dass it was
stated that this presumption existed even when the wife and husband were not living together.
➢ Presumption of Advancement: This normally arises in a family relationship when a family
member transfers property to another by way of a gift. The issue arises as to whether the
beneficial interest in that property has been transferred to the other person, which is what is
known as the advancement when the property has been wholly transferred to the other person or
whether that other person holds the property in trust for the person who has given it. In Wanjiku
v. Mutiso [1988] the parties were husband and wife. In 1967, during the course of their marriage,
Mutiso acquired a farm through two loans, both of which were secured by charges on the farm.
Mutiso was a Member of Parliament but was jailed for 9 and half years in 1971 for sedition.
Mutiso fell into arrears in mortgage payments. Mutiso made out a power of attorney in favour of
the wife but he was subsequently obliged to transfer the farm into her sole name. He executed a
deed of gift to that effect. Subsequently the parties grew apart and when Mutiso was released
they were unable to resume their married life together. Mutiso therefore filed suit claiming that
his wife held the property as his trustee and she should transfer the same back. The court ruled in
favour of Mutiso and the wife appealed. It was held that the presumption of advancement should
only be made so as to accord with the social conditions in Kenya and to conform to the most
likely intentions of the spouses. In this case, the strength of the presumption would be much
diminished.

➢ Presumption of Marriage: This arises where a man and woman cohabit and call themselves
out as man and wife. Under this presumption they will be deemed to be married even if they
have not undergone any formal marriage ceremony. In this regard, family law tries to incorporate
certain situations which do not squarely fall within the family threshold; where parties have met
legal requisites to be called man and wife. This presumption has been applied to the Kenyan
situation. In Wanjiku Yawe v public trustee CA No. 13 of 1976 the court found that this
presumption can also be found under African customary law. In Charles Manjani v. Rosemary
Moraa the presumption was said to apply even where the wife had previously been married to
another man. It was held in this case that the presumption would apply even though the first
marriage was dissolved during the cohabitation although by the time cohabitation started it had
not been legally resolved.
b. Application of Statutes of General Application in England

Until the enactment of the Matrimonial Property Act in 2014, Kenyan courts applied the Married
Women Properties Act, 1882 as a statute of general application to the division of matrimonial
property. The Act provided that a married woman was capable of acquiring, owning and
disposing of property as her own separate property. The history to this Act was that under
English common law, a women could not hold separate property. Thus the Act liberated married
women who henceforth could own and dispose of their own property. The Act was applied in
Kenya in I v. I and Antony Karanja v Karanja.

I v I [1970] was the first reported decision of the Kenyan High Court where the Married
Women’s Property Act (MWPA) of England was considered, and it was held that the Act applied
to Kenya. The husband in this case had acquired a property in England from his earnings and had
it registered in the joint names of the spouses. The house was subsequently sold and most of the
proceeds used to purchase a house in Kenya which was transferred into the husband’s name. The
wife had expected that the subsequent property would go into their joint names. The question
before the court was whether the Married Women’s Property Act would apply in Kenya and
whether the presumption of advancement to the wife as a result of the initial transfer to herself of
a half-share had been rebutted. It was held that the MWPA was a statute of general application in
England on 12 August 1897. It would therefore apply in Kenya so far as the circumstances of
Kenya and its inhabitants permit.

c. Application of English Law by Reference

For a long time, we found English law applicable by reference made in our statute. An example
was in the repealed Matrimonial Causes Act. Under Section 3, it was provided that the law that
was to be applied in Matrimonial proceedings was that which applied in the High Court of
Justice of England. Similarly, Section 35 of the repealed Marriage Act provided that no
marriage would be valid if the parties were within prohibited degrees of affinity according to the
law of England. This has been altered and the position on the degree of affinity and
consanguinity is now provided for in section 10 of the Marriage Act 2014. A major problem in
this area was with regard to what happened when a law underwent subsequent changes, did we
adopt the changes wholesale? In K v K HCCC No. 123 of 1975, it was held that any amendments
which are contrary to our own laws would not be applicable in our own situation. For example,
the divorce law underwent major reform in 1970 in England. Thus, on the ground for divorce in
England, from the reforms in 1970, one only has to prove that there were irreconcilable
differences between the spouses. In Kenya we still had to prove that the other party has been
guilty of a fault. We therefore needed to quote one or more of the grounds existing under the law
such as adultery, cruelty etc. if divorce was to be granted.

2.The changes by individual of the family law system applicable to them. However, there are
practical problems that arise from one attempting to change their family law system. This has
revolved around:

a. The Attitude of Statutory Law towards Changing One’s Family Law System. Changing
one’s family law system is not a simple issue. As it has already emerged, the position has been
that while one could easily change from customary, Hindu or Islamic family law to
Christian/civil system through change of religion, it has not been easy to convert from the
statutory system to Islamic, or customary systems just by the act of change of faith. Moreover,
even today, the regulation of civil and Christian marriages requires various formalities before
one can change from one system to another.

The position is compounded by the fact that English law started with a situation of non-tolerance
of other family law systems. In Hyde v. Hyde (1866) LR 1 P&D 130, a case concerning the
marriage in 1858 of two Mormons in Salt Lake City, marriage according to Christendom was
defined as the ‘voluntary union for life of one man and one woman to the exclusion of all
others’. In Re Bethel [1888] an English man married a Botswana Woman under Botswana
customary law and they had a child. The husband died and left property in England. The issue
was whether the daughter born out of this relationship was legitimate and could therefore inherit
the property in England. The court held that that marriage was not recognized under English law
because it was potentially polygamous and the daughter was therefore not legitimate and could
not inherit the property.
The case of Ex Parte Mir-Anwarrudin (1917) also had a similar ruling with Re Bethel. The
attitude of the English courts not recognizing any other law was also found in Kenya in colonial
times. In Re Amkeyo, the courts termed the wives in those marriages as concubines and refused
to recognize them as wives. From 1940 the English Courts started to change their attitude and
started recognizing other family law systems for purposes of entertaining matrimonial causes
arising from those systems. This recognition was not for purposes of validating them but for
purposes of facilitating the change from those systems to statutory family law systems so that
they would recognize another family law system for purposes of invalidating it or purposes of
facilitating change from that system to the English law system.

From 1940s onwards, courts now do recognize other family law systems and recognize that one
can change from one system to another. In Badell v. Badell, a Hindu polygamous marriage was
recognized for purposes of nullifying it in England. A challenge regarding the possibility for one
to change one’s family law system arose in Sowa v. Sowa. Here, a polygamous marriage was
celebrated in Ghana where the parties were domiciled. Prior to the ceremony, the husband
promised the wife that he would go through a later ceremony which, according to the law of
Ghana, would convert the union into a monogamous marriage. He failed to carry out his promise.
It was held that, despite his promise and despite the fact that the husband had not taken an
additional wife, the marriage continued to be regarded

as polygamous.

In Ayoob case (1968) E.A. 72, the parties were Muslims and they got married under the
Marriage Act as the statutory law marriage. On the same day they were married under Muslim
Law. Subsequently the husband divorced the wife by way of talak, a Muslim form of divorce. He
then went to court seeking a declaration that his marriage had been lawfully dissolved. It was
held that the husband by performing the talaq was able to divorce the Muslim marriage but if he
wanted to divorce the statutory law marriage he would have to file for divorce under the
Matrimonial Causes Act. The court was essentially saying that the act of contract of a Muslim
marriage after the statutory law marriage does not convert the statutory law marriage so that the
statutory law marriage was still persisting and had to be divorced by following court procedures.
In Estate of Ruenji, the deceased a Kikuyu by tribe and domiciled in Kenya, died leaving a gross
estate of about Ksh 53,000. It was not disputed that he was married to one Loise Murugi Mbiri
under the African Christian Marriages Act in 1941. It was also alleged that the deceased
subsequently married two other ladies, namely Mary Waithira and Mary Wanjohi according to
the Kikuyu customary law and had children by them. The public trustee and the lawyer for Loise
submitted that the first question that must be decided was whether in view of the deceased’s first
marriage under the African Christian Marriage and Divorce Act, the deceased could enter into
one or more other lawful marriages. It is notable that marriage under the Act was meant to be a
Christian marriage and the parties became legally bound to each other as man and wife so long
as both of them would live. Their marriage could not be dissolved during their lifetime except by
a valid judgment of divorce. If either of the parties (before the death of the other) were to
contract another marriage without dissolving the other one, the party would be guilty of bigamy,
and liable to punishment for that offence. It was apparent that the deceased had not divorced
Loise during his lifetime, and that, consequently, any subsequent marriage would be illegal. The
court held that the second wives were not recognized under statutory law because the man did
not have capacity to contract a second marriage and therefore, they and their children could not
inherit from the man’s estate.

Similarly, in Re Ogola, the man had married his first wife under statutory law and then
contracted second marriage under customary law. The man died and the question arose whether
both wives could benefit from the husband Estate. The court held that the man could not convert
from a statutory way of life that he had committed himself to. The other wives were not
recognized. These two cases were instrumental to the enactment of the Succession Law. In our
Law of Succession Act, customary law wives can inherit irrespective of the fact that the
husbands could have married previously under statutory law

3. The internal conflicts between different family law systems.

a.Cnflict between Statutory and Other Systems of Family Law: There are conflicts due to the
reluctance by the court to recognize that one change from statutory to other family laws. E.g.
parties will get married under statutory law and continue to live their customary way of life and
in the process contract customary law marriages. The issue is: to what extent will that customary
law apply to people married under statutory law? There are situations such as Re Ogola arising;
or stories of people having gotten married under statutory law and then getting married under
customary law later to realize that they have committed an offence.

b. Different Customary Law systems especially African customary Law system: This
problem is exacerbated by the fact that the Kenyan population is becoming urbanized and when
we say that the Kenya customary law applies, which is the customary law and especially for
people who live in urban areas and do not practice any customary law.

c.. Conflicting Statutes: A good example was the conflict that existed between the Marriage
Act and the Law of Succession Act whereby under the Marriage Act, marriages are strictly
monogamous and it is an offence to conduct a second marriage, but the Law of Succession gave
recognition to potentially polygamous marriage and that ‘wives’ from a bigamous relationships
could inherit at death of their spouse. This conflict still persists under the Marriage Act of 2014
and the Law of Succession Act which was not changed in relation to civil and Christian
marriages when one commits bigamy. Secondly, the Marriage Act does not make provision for
application of customary law in determining the fate of the children. Under the Children’s Act, it
is provided that in matters determining custody of children one of the matters to be taken into
account are the customs affecting that child. So in an attempt to accommodate African system of
law the children are brought in a concept not present in other Acts.

QUESTION 3

It’s important to note that the laws on matrimonial property were scattered in various statutes as
discussed below:

1.Married women’s property act 1882

This statute originated from England and applied to Kenya through the provisions of Section 3
of the judicature Act “...Statutes of general application in force in England on 12 August 1897
… so far only as the circumstances of Kenya and its inhabitants permit would serve as source of
law..”
This was a leap from the MWPA of 1870 that applied the doctrine of coverture, where the legal
identity of the wife is covered by the husband’s, hence a married woman had no legal persona
among other things what is relevant to matrimonial property is that she could not own property
(The Return of coverture:Michigan Law Review)

Section 17:In any question as to between husband and wife as to the title to or possession of
property, either party, or any such bank, corporation, company, public body, or society as
aforesaid in whose books any stocks, funds, or shares of either party are standing, may apply by
summons or otherwise in a summary way to any judge of the High Court of Justice in England or
in Ireland…

Application in Kenyan cases

This application was affirmed by various cases:

I v I (1970) - This was the first case under the MWPA that determined that whereas the
judicature act stated that the act would apply in so far as the circumstance of Kenya allowed,
women not having the right to own property does not qualify as a circumstance that bars the
application of MWPA

Karanja v Karanja (1976) Kenya Law Reports - In this case two customary law relics called
as expert witnesses differed in opinions, one stated that women lacked capacity to own property
and another stated that times were changing and that women could own property in their own
name.

The court held that accepting the first expert witness testimony would go against written law.
Customary law would apply to the extent that it doesn’t contradict written law and in this case
customary law was contradictory to written law (MWPA)

Essa v Essa (Unreported) Civil Appeal No 101 of 2995, Nairobi-Islam case, it affirmed that
“Statute of general application…”as stated in the Judicature Act meant that it applies to all
persons in Kenya, muslim or non-Muslim

Matrimonial Causes Act

This statute gave women the right to own property, right to be sued and sue with regards to their
property upon judicial separation, this is under Section 18 of the Act.

Law of succession act Cap 160

Under Section 35(1) and 36(1) captures the provisions for when one spouse and a child or
children are left behind and when the spouse is left behind without no child or children
respectively
In both, where the spouse dies intestate the remaining spouse is entitled to the household goods
and effects of the deceased absolutely.

**For the contents in blue, we have attached a link for easier access to the referenced
document, so simply tap to access it.

QUESTION 4

a) Multiplicity and Conflict of Laws: Kenya historically operated under multiple family
law regimes, including customary law, Islamic law, Hindu law, and English family law.
This created internal conflicts and confusion. For example, customary law applied to
native Africans, Islamic law to Muslims, and English law to settlers. The multiplicity of
laws often led to contradictory outcomes in matters like marriage, divorce, and
succession. An example is the case of Cole v. Cole, where a Nigerian couple married
under the Christian rites but faced a dispute over the inheritance of property. The court
had to clarify whether customary law or English law would apply.1
b) Colonial Legacy: Many of the family laws in Kenya were derived from British and
Indian statutes, such as the Indian Divorce Act of 1869 and the Indian Succession Act of
1865. These laws were not tailored to the cultural and social realities of Kenyan
communities. The application of laws like the Matrimonial Causes Act (1941) and the
Marriage Ordinance (1902) caused incertitude, particularly among communities with
differing traditions and customs. Over time, it became evident that the reliance on foreign
laws hindered the development of a family law system that reflected local realities.
c) Outdated and Inadequate Protection of Women and Children: Past family laws,
especially those derived from customary law, often failed to protect the rights of women
and children. For instance, under customary law, women had limited rights to property or
inheritance. This inequality persisted in the legal system, where laws like the Marriage
Ordinance dictated that marriage under customary law distanced individuals from their
rights under the ordinance.

Cases like R v. Mwakio highlighted how colonial courts often disregarded the status of
women married under customary law. Substantially, this case dealt with the admissibility

1 Cole v Cole
 of evidence given by wives arguing that they are in a privileged position and therefore
cannot testify against their husbands. The judge said in specificity that “it is unfortunate
that the word wife and marriage have been applied in this connection. If only the woman
party had been described as a concubine or something of the sort, the question could
never have arisen.2”

Additionally, the Children's Act of 2001 was initially progressive but had several flaws.
For instance, it did not provide adequate legal protection for children born out of
wedlock. The LNW v. AG & Others case highlighted this flaw, where the court found
section 12 of the Registration of Births and Deaths Act discriminatory against children
born outside marriage.3 The reforms through the Children’s Act 2022, which replaced the
2001 Act, addressed such gaps by providing a stronger legal basis for children’s rights,
including the right to parental care regardless of the marital status of the parents. In the
case, ZAK & Another v MA and the Attorney General (2013) case, underscored that
both parents (regardless of marital status) must take responsibility for their children,
focusing on the child's best interests.

In re Gault (1967),4 the US Supreme Court granted juveniles the same due process rights
as adults emphasizing the protection and fair treatment of children within the legal
system. Similarly in J.O v S.A.O5 the high court of Kenya emphasized that custody
decisions should prioritize the child’s welfare over parental preferences.

d) Need for Harmonization: The existence of different family law systems led to
inconsistencies and injustices. The Report of the Commission on the Law of Marriage
and Divorce highlighted the problems caused by the multiplicity of laws and proposed
the harmonization of Kenya’s family law. The push for reform culminated in the
Marriage Act of 2014, which consolidated the various family laws into one statute,
providing clarity and uniformity for all citizens regardless of their religious or cultural
background.

2 R v Mwakio
3 LNW v AG & Others (2016)
4 In re Gault (2017)
5 J.O v S.A.O (2016)
 Moreover, Kenya had ratified international conventions like the UN Convention on the
Rights of the Child (CRC) and the African Charter on the Rights and Welfare of the
Child, but the pre-2010 laws were not fully aligned with these international obligations.
The need to harmonize domestic laws with these conventions was emphasized by the UN
Committee on the Rights of the Child. The 2010 Constitution of Kenya introduced a
comprehensive Bill of Rights that incorporated children's rights, making it imperative to
update family laws to reflect these constitutional standards.

e) Equalization of Gender Rights: Historically, family laws were biased in favor of men,
granting husbands ownership over their wives' property. The gradual abolition of these
laws, such as the right of a husband to possess his wife's property, was a key reason for
reform. The case of R v R was significant in marking the shift towards gender equality,
where the House of Lords ruled that a husband could be convicted of raping his wife,
highlighting the removal of discriminatory laws.6

In Reed v Reed (1971)7 The Supreme Court of America played a crucial role in
advancing gender equality under the law . The case involved Sally and Cecil Reed who
were separated at the time and both sought to be named administrators of their deceased
son's estate . According to the Idaho probate code, the distribution of a deceased person’s
estate to their heirs is supervised by a court irrespective of whether the deceased person
left a will behind. At the time male heirs were preferred to female heirs when appointing
administrators of estates. A question arose on whether the Idaho probate code violated
the right to equal protection clause of the 14th Amendment. The Supreme Court ruled in
favour of Sally and held that the Idaho law’s dissimilar treatment of men and women was
unconstitutional.

A similar decision was arrived at in the case of Rono v Rono (2005)8 The case primarily
involved a dispute over inheritance where the lower court delivered a biased decision
against the female gender. The court of appeal held that daughters have equal rights to
inherit property as sons challenging traditional customs of male heirs.

6 R v R [1992] 1 AC599 HL
7 Reed v Reed (1971)
8 Rono v Rono (2005)
 f) Inadequate Financial Provisions for Divorce and Separation: Past family laws
provided limited financial relief for women and children during divorce or separation.
Laws such as the Separation and Maintenance Ordinance (1928) only applied to
monogamous marriages and offered narrow financial protections. This inadequacy
required reforms to provide fairer financial settlements and economic support after
marriage breakdowns.
g) Improving efficiency: Legal systems faced backlogs and delays, particularly in cases
involving family, violence, and children. In the Estate of M’Ngarithi M’Miriti
(Deceased ) (2017 ), the case particularly dealt with the administration of estates and the
need for efficient legal processes. The court emphasised the importance of timely
resolution of estate matters to avoid prolonged litigation and ensure fairness.
h) Addressing social changes: Family structures and societal norms have evolved
significantly. Laws need to reflect modern dynamics including cohabitation, same-sex
marriages, and the rights of unmarried partners. The US Supreme Court made a landmark
ruling in the case of Obergefell v Hodges (2015)9 legalising and acknowledging same-sex
marriages. Kenya’s legal system improved significantly over time in addressing social
changes, in the case of Republic v KNEC Ex parte Audrey Mbugua Ithibu (2014) 10 This
case involved Audrey Mbugua, a transgender woman who sought to have her name
changed on her academic certificates. The high court ruled in her favour recognizing the
rights of transgender individuals . In the case of Mary Nyambura Kangara alias Mary
Nyambura Paul v Paul Ogari Mayaka (Petition No. 9 of 2021) 11The Supreme Court of
Kenya extended the protection of property rights to all forms of family-forming unions,
including those arising from cohabitation The court recognized that couples who cohabit
for long periods without the intention of marriage should still have their property rights
protected. This decision was a landmark ruling in acknowledging that families can be
formed outside the traditional confines of marriage and still deserve legal protection .

9 Obergefell v Hodges (2015)

10 Republic v KNEC Ex parte Audrey Mbugua Ithibu (2014)
11 Mary Nyambura Kangara v Paul Ogari Mayaka (2021)
QUESTION 5. The Marriage Act, 2014

The Marriage Act sets out the following:

- defines terms related to marriage such as spouse, monogamous marriage, polygamy,
prohibited marriage relationship, and witness.12

- It establishes the minimum age for marriage and prohibits certain marriage
relationships.13

- It outlines the registration requirements and procedures for Christian marriages, civil
marriages, customary marriages, Hindu marriages, and Islamic marriages.14
In E M M v P M K (2024), the petitioner sought the dissolution of the marriage, citing the
respondent’s ungovernable temper, depravity, cruelty and desertion as underlying grounds for
seeking dissolution. The facts of the case are that the petitioner had contracted a marriage under
Kamba customary law in 1987. However, they had failed to register the marriage as prescribed
by the Act. The Court articulated that the enactment of the Marriage Act had caused a shift from
uncodified customary law on marriages to standardised rules applicable to all communities.
Further, the court reiterated that prior to enactment, a party to a customary marriage did not
require to approach the court for divorce but would be obliged to follow the cultural rites or seek
a decree from the Court. The Court relied on Section 12, 59 and 96 of the Act which directed
parties to a customary marriage, prior to the enactment of the Act, to apply for registration of the
marriage whose failure would result in rendering the marriage voidable. In addition, the Court
articulated that one of the particulars of a marriage included either a marriage certificate or a
certified copy of the entry entered into the register of marriages. The court concluded that the
question on dissolution of a customary marriage had been rendered moot by virtue of non-
registration. 15
12 Marriage Act 2014, Section 2
13 Marriage Act, Section 4
14 Marriage Act, Sections 53 - 63
15 E M M v P M K, Divorce Cause 023 of 2023, Judgment of the High Court at Machakos, eKLR.
In the case of Mary Muigai v AG and another,16 the petitioner sought that the court declare the
Marriage Act unconstitutional for certification of cultural marriages without the consent of the
first or older wives in the event of incorporation of another wife. She also prayed the same on the
second ground that the Act failed to recognise Baha'i marriages as one of the faith based
marriages in Kenya in Section 6 of the Act, thus compelling the members to go through civil
marriages if their marriages are to be registered. The court, while noting that there are several
other religions practised in Kenya other than the four listed in Section 6 such as Jainism,
Judaism, and Sikhism, it held that the section must be read to include every marriage celebrated
in accordance with the faith of a religion duly registered in Kenya.

On the first ground of unconstitutionality raised, the petitioner argued that the registration and
certification of polygamous marriage without the consent of existing wife or wives is
discriminatory on the basis of sex under Art 27 and also a violation of Article 45(3) which holds
that both parties to a marriage are equal. The court described equality in polygamous marriage as
an ‘oxy-moronic phrase’ as the same will mean that the woman has equal right to get married to
a second spouse during the subsistence of the marriage (polyandry) which is not acceptable in
the Kenyan culture and so it must be accepted that polygamy precludes equality between men
and women. In conclusion, the court recognised that although polygamy is discriminatory and
unconstitutional, there are situations which the Constitution cannot regulate and so is left in the
hands of the people as well as the adults contracting marriage to decide.

- It addresses matters related to the dissolution of marriages such as grounds for annulment
and separation, as well as maintenance orders and other relief.17
In KAS v MMK (2016), the Court reiterated Section 66 (2) of the Marriage Act in outlining the
grounds for dissolution of a civil marriage which include adultery, cruelty, desertion, exceptional
depravity and irretrievable breakdown of a marriage. In dissecting cruelty, the Court relied on
the Black’s law dictionary as well as the jurisprudence set out in W M M v B M L (2012)

16 Petition 237 of 2014, Judgement of the High Court at Milimani, Nairobi, eKLR.
17 Marriage Act, Sections 64 - 75.
whereby the Court established that acts of cruelty are invariable and involve spousal conduct that
causes anguish or threatens the physical and mental health of the second spouse.

In the current case, the parties sought a dissolution as their marriage had irretrievably broken
down due to allegations levelled against each other. 18

Further, in M S V v S J V (2015) eKLR, the petitioner sought a dissolution of the marriage,

maintenance for herself and their three issues as well as an alimony. The grounds included
adultery and cruelty on the part of the respondent that heavily impacted the life and health of the
petitioner. In dispensing on the petitioner’s maintenance, the Court borrowed heavily from W M
M v B M L (2012) in articulating that Article 45 (3) of the Constitution of Kenya read with
Article 23 (1) paved the foundational basis for maintenance of spouses by emphasising the
equality of both women and men in the enjoyment of proprietary and personal freedoms. The
Court articulated that no spouse was allowed to shirk his responsibility by failing to support
himself and turning the spouse into a beast of burden hence neither alimony nor maintenance
could be paid as a matter of cause but only after the spouse has proved incapacitation that
warrants the support of the other partner. In making a finding that spouses had certain duties to
each other even after divorce, Lenaola J ruled in favor of the petitioner in granting maintenance
as a result of the illness resulting from the respondent’s misgivings.19

In Tukero Ole Kina v AG and another (2019), 20 the petitioner prayed that the court declare
Section 66(1) of the Marriage Act unconstitutional for violating other rights and fundamental
freedoms including Articles 27, 36 and 48 of the Constitution. Section 66(1) of the Act required
that in the dissolution of a civil marriage or separation of the parties, at least three years must
have elapsed since the celebration of the marriage. While the court noted the respondents’
concern that the three year requirement was put in to protect the sanctity of marriage, it noted
that it was prima facie discriminatory since this requirement was only subject to civil marriages
yet all marriages are of equal legal status. 21 The court analysed that this law had the effect of

18 K A S v M M K, Divorce Case No 10 of 2016, Judgment in the High Court at Malindi, eKLR

19 M S V v S J V and another (2015), Judgment of the High Court of Kenya at Nairobi, eKLR para 47 -
57.
20 Petition no 6 of 2018, Judgement of the High Court at Malindi, eKLR.
21 Marriage Act (2014) Section 3(3).
forcefully keeping parties in relations they no longer wish to so that even when cruelty is a
ground for separation, their petition cannot be heard till the time limit is reached. This in its core
violates the right to dignity as well as their right to access to justice. The Court held the three
year prerequisite for dissolution of civil marriages unconstitutional to the extent that it limits the
presentation for a petition for separation or divorce.

- It establishes offenses and penalties for violations of the Marriage Act.