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INTRODUCTION

0. Introduction

In one social context a family may refer to a man and a woman who share a common household. In another, it is defined as all persons who share blood relations. In others, it is defined as all persons who share a household. In others still it means all the members of a household, including parents and children with perhaps other relations, lodgers and even servants.

The family is the basic component of a society organization. Marriage and the founding of a family is a basic human right as per Article 16 of the Universal Declaration of Human Rights.[footnoteRef:1] Article 23 of the International Covenant on Civil and Political Rights declares that the family is the natural and fundamental group unit of society and is entitled to protection by society and the state.[footnoteRef:2] It is also the basic economic unit of society in the sense that the most productive activities take place within the family set up. The family setup provides a framework for the parties to have satisfactory sexual expression. It guarantees perpetuation of society through the receiving of offspring. It provides a framework for companionship between the members of that family. [1: G.A Resolution 217 A(III) G.A O.R., 3rd Sess.] [2: See Kakooza, J.M.N., Changes in Family Law, in (1968) 4(1 and 2) East African Law Journal 11.]

Legally, the term family is a restricted concept. There are certain formal pre-requisites that have to be met and the main one is a marriage ceremony. In law a family is created when parties enter into a legally recognized marriage. The law also restricts the right to terminate that legal status. The family is registered because it serves a number of purposes in society.

The family contemplated by the general law is the modern English type consisting of husband and wife bound in monogamy for life subject only to the possibility of a judicial decree of divorce, with their children. The notion of family in African society is much wider. It embraces the concept of the extended family, which may consist of the man, his wife or wives, his children (that is to say his unmarried daughters and his married sons with their wives and children) and other more distant relatives such as his young brothers with their wives and children.[footnoteRef:3] [3: See Read, J.S., Family Law in Kenya, in MBaye, K. (ed.), Le Droit de la Famille en Afrique Noir et a Madagascar, 1968, Paris, page 248.]

0. Family LawFamily law gives effect to the societys values as regards the relationship between man and woman.[footnoteRef:4] Family law seeks to define status between the parties in that family i.e. it defines what rights a member of the family can claim over the other or over the others property. Altering the status of parties in the family. A remedial role; that is it serves to protect certain weaker members of that family e.g. children. On termination of a family relationship there are certain members who may need protection especially economic protection. The trend now is that not all family relationships are created by marriage ceremonies such as cohabitation, single parents. The law has developed to recognize some of these relationships. [4: See generally, Kuria, G.K., The African or Customary in Kenyan Law Today, a paper presented at the Workshop on Conceptualising the Household: Issues of Theory Method and Application at the Harvard Institute for International Development, 2nd 4th November 1984.]

Some of the developments in law have been to deal with these issues, under common law and equity there is recognition given to cohabiters. Children born out of marriage also acquire recognition. Family law is the law that governs agreements to marry and betrothals, formalities that bring marriages into existence, maintenance, separation, custody , adoption, nullity, divorce property acquired during the marriage by the spouse and devolution of property in the event of the death of a spouse.[footnoteRef:5] [5: See Kuria, Gibson Kamau, Christianity and Family Law in Kenya, in (1976) 11(1) East African Law Journal 33 at 34. See also Read, James S., When is a Wife not a Wife? (When shes a witness?), in (1966) 1(1-4) Journal of the Denning Law Society, 47 at 43.]

0. Family Law in Kenya

The population of Kenya is a variety of cultural diversities. There are large numbers of Bantu speaking communities as well as speakers Nilotic and Nilo Cushitic languages. Other than that there are also large populations of people of Asian and Caucasian descent. This diversity is reflected in the personal laws applying to the various sections of the population. The mix has also meant that family law in Kenya has a much wider ambit than it is understood in England.[footnoteRef:6] [6: See Read, J.S., Family Law in Kenya, in MBaye, K. (ed.), Le Droit de la Famille en Afrique Noit et a Madagascar, 1968, Paris, page 254.]

HISTORY OF FAMILY LAW IN KENYA

0. IntroductionThe territory which is now known as Kenya: African customary law and Islamic law. Islamic law was introduced through the trans-Indian Ocean trade between the Arabian peninsular and the east coast of Africa, otherwise African customary law was the original law. The colonization of Kenya saw the establishment of statutory of marriage and divotrce which introduced principles of English family. At about the same time the Hindu family law was introduced after the colonial government brought in many people from India to work as labourers during the construction of the Uganda Railway.[footnoteRef:7]Before then however there was some presence of persons professing the Hindu faith along the coast since the Indian subcontinent had been trading with the east coast of Africa for centuries.[footnoteRef:8] [7: Derrett, J.D.M., Introduction to Modern Hindu Law, Oxford University Press, London, 1963, pages 535-546. also Kakooza, J.M.N., Changes in Family Law, in (1968) 4(1 and) East African Law Journal 1. ] [8: See Singh, Chanan, Rejoinder: Hindus and Hindu Law in Kenya, in (1971) 7 (1) East African Law Journal 69 at 71.]

The starting point for establishment of the modern family law systems in operation in Kenya today is the 1897 East Africa Order in Council, which established a legal system for Kenya, and in the process applied certain Indian and British Acts of Parliament to the East African Protectorate.[footnoteRef:9] It also applied the common law of England and principles of equity which were in force in England at the time. It also provided for the application of African customary law and Islamic law. In a word it provided for the application of the four systems of family law that are in operation in the country today. These four were African customary law, applying to Africans, Islamic law applying to those who profess the Islamic faith irrespective of their race, Hindu customary law applying to Asians who profess the Hindu faith and English law which applied mainly to Europeans and to those Africans who are taken have accepted the English way of life.[footnoteRef:10] [9: This was made under the 1890 Foreign Jurisdiction Act of England of 1890.] [10: See Kuria, G.K., The African or Customary in Kenya Law Today, a paper presented at the Workshop on Conceptualising the Household: Issues of Theory Method and Application at the Harvard Institute for International Development, 2nd 4th November 1984, pages 21, 22.]

There however existed uncertainties about these laws. Before 1946, it was not clear to the courts whether or not Hindu customary law governed the Hindu marriage. Similarly, before 1920 when the Mohammedan Marriage, Divorce and Succession Act was enacted, the High Court, basing its decisions on Hyde vs. Hyde and another(1866) LR 1 P & D 130, declined to entertain matrimonial causes arising from Muslim marriages on the ground that no law said that it had such jurisdiction.[footnoteRef:11] [11: Kuria, J.K., Religion, the Constitution and Family Law and Succession in Kenya, a mimeo, pages 107,108. ]

The East Africa Order in Council of 1897 was clear that the family law of the Muslims was Islamic law, for the African customary law applied, for the African Christians it was the law applying to Christians in India,[footnoteRef:12] while for the Europeans it was the Indian Divorce Act of 1869, applied by the Order in Council to Kenya, together with English statutes and the principles of the common law and doctrines of equity in force in England as at 12th August 1897.[footnoteRef:13]In 1902 the East Africa Marriage Ordinance[footnoteRef:14] was enacted to enable Europeans and westernized non-Europeans to contract the English type of marriage in accordance with a law derived from English law. The statute applied the English law of succession to such Africans and their children. The assumption inherent in this later provision was that by marrying in the English way the African abandoned the African way of life and totally embraced the English culture and way of life.[footnoteRef:15]The East African Marriage Ordinance of 1902 was amended in 1904, by the repeal of section 39 which had applied the English law of succession to African Christians.[footnoteRef:16] 1904 also saw the promulgation of the Native Christian Marriage Ordinance which sought to introduce to Africans a simplified procedure of contracting an English style marriage. The formalities followed in English law were considered too complex for the African Christian.[footnoteRef:17]The statute was replaced in 1931 with the African Christian Marriage and Divorce Ordinance,[footnoteRef:18]which dealt with aspects of marriage peculiar to Africans. Africans married under this Ordinance had the same law governing their married life as that which governed Europeans. [12: See the Native Courts Regulations of 1897 made under the East Africa Order in Council of 1897.] [13: See Article 11(a) of the East Africa Order in Council of 1897 and the schedule.] [14: Ordinance No. 30 of 1902. This statute was a colonial office model and was intended to be applied in Ghana, Nigeria, Malawi, Uganda and Kenya. ] [15: The Nigerian case of Cole vs. Cole (1898) 1 NLR 15, was based on a similar law in colonial Nigeria and is illustrative of the then prevailing colonial thinking that the English type of marriage was superior to the African marriage, and that the act of an African of contracting an English style marriage indicated the Africans abandonment of his African ways and his embrace of the English way of life. ] [16: See Kuria, G.K., Internal Conflict of Marriage Laws in english Speaking African Countries, a paper presented at the World Congress of Sociology in Uppsala in August 1978, page 21.] [17: See Kuria, G.K., Internal Conflict of Marriage Laws in english Speaking African Countries, a paper presented at the World Congress of Sociology in Uppsala in August 1978, page 22.] [18: The current Cap. 151 Laws of Kenya.]

It is clearly discernible from the operations of all the four systems of family laws applicable in Kenya that they were anglicized to a large extent. On matters touching on custody of children, the colonial court initially applied the different laws relating to custody instead of applying the English law on the matter to Africans, Muslims and Hindus, but later the colonial began to subject the English law of child custody to all these different groups without exception.[footnoteRef:19]The device of conversion was another avenue, the law governing the celebration of English style marriages provided for the conversion of marriage from African customary law or Islamic law marriage to English law marriage.[footnoteRef:20] The African Christian Marriage and Divorce Ordinance provided for the conversion of the potentially polygamous African customary law marriages into the monogamous English type.[footnoteRef:21]These provisions remain in these two statutes todate. At independence it was decided that all thse family law systems be put at par and remain in force until a common way of life emerged when one family law would replace them.[footnoteRef:22] [19: See Kuria, G.K., Internal Conflict of Marriage Laws in english Speaking African Countries, a paper presented at the World Congress of Sociology in Uppsala in August 1978, page 22.] [20: See the East African Maarriage Ordinance, sections 11 and 33.] [21: See section 9 of the African Christian Marriage and Divorce Ordinance.] [22: See Section 82(4) (b) of the Constitution (Act No. 5 of 1969). ]

Law Applying to Africans

(a) African customary law

Insofar as the natives were concerned, the East Africa Order in Council of 1902 had limited application. It provided that cases against natives would be brought in native courts and a Commissioner was given the power to establish and abolish those Native Courts and to regulate their procedure as well as give directions as to the application of native law and custom. As a result of this power, the Commissioner made the Native Court Regulations of 1897 and what these regulations provided was that in matters affecting the personal status of natives, then the law of their caste or tribe insofar as it could be ascertained and insofar as it was not repugnant to national morality could be applied. The provisions were further modified by the Native Courts Regulations. The East Africa Order in Council of 1902 whose main purpose was to clarify further when customary law applied. It was provided that in all cases whether civil or criminal in which natives were parties, the courts would be guided by native law in so far as it was applicable and not repugnant to justice and morality or inconsistent with any law made in the protectorate. This introduced the repugnancy doctrine. In application the colonial judges and administrators, being either British or trained in Britain, followed the principles of justice and morality obtaining in Britain at the time,[footnoteRef:23] although in a number of cases they upheld some local customs[footnoteRef:24] and modified others. This formulation of the Order in Council is the same formulation that we have in Section 3 of our Judicature Act insofar as application of customary law is concerned. In areas of family law for those natives who still practice customary law are still governed by African Customary Law. [23: See Marko Kajubi vs. Kulanima Kubali (1944) 11 EACA 34 (Sir John Gray CJ).] [24: See Ole Olesso vs. Nalulus ole Kidoki (1914) 5 EALR 210 (Bonham-Carter Ag. CJ)), Rex vs. Obongo (1920) 3 ULR 31, Nyaberi vs. Nyaboga (1953) 1 CRLR) 5, Mairura vs. Anginda (1958) 6 CRLR ]

This was basically the same approach that was taken by the Kenyan colonial court and you will find this stated in many of the cases that were decided in that period R v. Amkeyo, R v. Mwakio, Robin v. Rex Most of these cases were actually dealing with issue of admissibility of evidence given by the wives arguing that they are in a privileged position and therefore could not testify against their husbands in Mwakio the Judge said 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. That illustrated the colonial courts attitude to women who were married according to customary law. They did not deserve to be termed wives as per the colonialists and the wife evidence was going to be admissible because they were married under customary law.

[footnoteRef:25](b) Statutory law [25: Cap 151 of the laws of Kenya]

The Native Christian Marriage Ordinance applied only to the marriage of Christian applicants. It was supposed to supplement the Marriage Ordinance and was intended to relieve the Africans of the need to comply with the formalities laid down in the marriage ordinance. It only applied to Africans who professed Christianity and just like marriage ordinance marriage under this Act was strictly monogamous.

This Act also provided some protection to widows in the sense that widows who had been married under the ordinance were protected from being inherited as was the case in customary law. That is they could refuse to subject themselves to the subject of widows inheritance. The marriage had to be celebrated by a church minister and before the church minister did this he had to satisfy himself that the parties were Christians.

Samuel Uledi vs. Lydia Habibu (1906-1908] 2 E.A.L.R 91 held that the divorce ordinance no.12 of 1904 only applies where the petitioners professes the Christian religion or has been married under the marriage ordinance and the jurisdiction has to be exercised in accordance with the law applied in the high court of justice in England. Also held that a marriage between native Christians before1902 not celebrated by a minister of a religious denomination according to the rites of that denomination is invalid.

The native marriage Christian Ordinance was replaced in 1891 with the African Christian Marriage and Divorce Act.

Law Applying to Muslims

For those natives who were Muslims, Islamic law would apply to them and this was with regard to matters affecting their personal status. Khamis Bin Ahmed V Ahmed Bin Ali Bin Abdurehman [1934] 1 E.A.C.A 180 held that the law of Islam cannot be described as native law for the purpose of Article 7 of the Kenya colony order in council 1921 merely because it is the law applicable to many, or even all, of the natives in Kenya. In 1906, the Mohammedan Marriage & Divorce Registration Ordinance was introduced to provide for registration of Islamic Marriages and Divorces. The ordinance only provides for registration of marriage or divorce. The Act is basically procedural and not substantive.

2.4 Law Applying to Hindus

There were also two other communities in Kenya at the time, the British Colonizers and the Indians who had been brought in as labour and the issue here was whether for those groups they applied Indian Act or British Laws and common law rules were applied. The Indian Law was basically British law that had been passed in India and there was not much difference between the two, they were obviously geared for application to the British Settler but did they apply to the Hindu? The assumption was that in Kenya, they would apply.

As early as 1898 we have all these laws governing different peoples. Muslims still continue to be governed by Muslim Law but with Hindus a number of developments occurred which made the Hindus to adopt laws that were similar to those found in the statues. In 1946 the Hindu Marriage, Divorce and Succession Ordinance was enacted. This is where Hindus parted way with Hindu Customary Law. The Act provided that in future all Hindu Marriages were to be monogamous and the Act extended to Hindus the reliefs that are available under the Matrimonial Act and under the subordinate Courts separation and maintenance Act. Under orthodox Hindus, marriages can be polygamous. The first enactment on Hindu family law came in 1946, the Hindu Marriage, Divorce and Succession Ordinance,[footnoteRef:26] to address two difficulties faced by Hindus.[footnoteRef:27] In the first place, when Hindus sought matrimonial relief in the courts they came up against the argument that a Hindu marriage was not a marriage within the meaning of that term in any of the ordinances in force in Kenya.[footnoteRef:28] The 1946 Ordinance sought to define the Hindu marriage and it stated at section 3(1) that a Hindu marriage would be deemed for all purposes to be a valid marriage. The second difficulty related to the ascertainment of the law applicable in a particular case. On this the Ordinance laid down two principles. The court was to apply the law and custom which would be applicable to the person seeking relief if he were seeking relief in India.[footnoteRef:29] Secondly, the court could ascertain the Hindu law or any custom by any means which it thinks fit, and in case of doubt or uncertainty decide the case as the principles of peace, justice, equity and good conscience may dictate.[footnoteRef:30]When law reforms were introduced in India in the 1950s, the Kenya law was amended to reflect those changes in India. The 1946 Ordinance was split into two statutes: the Hindu Marriage and Divorce Ordinance of 1960 and the Hindu Succession Bill of 1960.[footnoteRef:31]The Hindu Marriage and Divorce Ordinance of 1960 was a rehash of the Indian legislation.[footnoteRef:32] [26: The Ordinance came into force on 14th August 1946. ] [27: See Singh, Chanan, Rejoinder: Hindus and Hindu Law in Kenya, in (1971) 7 (1) East African Law Journal 69 at 71.] [28: Because Hindu marriages were potentially polygamous the colonial courts declined to assume jurisdiction to grant matrimonial reliefs the way English courts did following Hyde vs. Hyde and another (1866) LR 1 P & D 13 rule. See the decisions in Ganga Devi vs. Tulsi Dass 9 EALR 64 and Kakar vs. Kumari 28 (2) KLR 34.] [29: Section 5.] [30: Section 11.] [31: The government deferred action on the succession draft because it was anxuious to have a uniform code of succession for all the races.] [32: See Singh, Chanan, Rejoinder: Hindus and Hindu Law in Kenya, in (1971) 7 (1) East African Law Journal 69 at 71, 72.]

0. Law Applying to Europeans

The 1902 Order in Council gave the commissioner power to make laws which would apply in the protectorate and one of the first laws that was made in 1902 was the Marriage Ordinance. This Ordinance was a law of general application in the sense that it was not limited by race or religion and was meant to apply to all residents in the protectorate. It provided for basically a Christian form of marriage which was strictly monogamous and made it an offence for a person married under customary law to contract a marriage under the ordinance or vice versa. It was also meant to provide an avenue for the converted natives to contract the Christian type of marriage and for the settlers to contract marriage. What was important is that any African who married under the Marriage Ordinance was supposed to have embraced the Christian way of life and therefore distanced herself from their customary way of life. Cole v. Cole the ruling in this case exemplified the situation of what happened if one contracted a marriage outside the ordinance. A Nigerian couple got married according to Christian rites under the Nigerian Marriage Ordinance. They had a son who was mentally incapacitated and after a while the husband died. The issue then arose as to who was to succeed the man or who was entitled to the mans property and the mans brother argued that under Customary Law he was the one entitled to inherit the mans property. The wife argued that since they had married under the Marriage Ordinance they had distanced themselves from the African way of life therefore African customary law did not apply and instead the English Law of Succession applied and that under that English Law of Succession she was the one entitled to inherit in her own right and as guardian of her son. The court upheld her argument basically stating that since they had married under the marriage ordinance the African customary law no longer applied to them.

The Divorce Ordinance provided the procedure for matrimonial matters. This was based on the Indian Divorce Act of 1869 which was one of the Acts applied by the 1897 Order in Council. It provided or afforded relief only in respect to monogamous marriages. It was replaced by the Matrimonial Causes Act in 1941. This remains the position todate. In 1928 an additional relief was accorded by the Subordinate Courts (Separation and Maintenance) Ordinance which was limited to monogamous marriages. The purpose was to provide parties with judicial separation other than divorce and also to provide parties in a monogamous marriage to seek maintenance while the marriage is still subsisting.

0. [footnoteRef:33]The Constitutional Basis for Application of Different Law Systems [33: It still exists under the same name in our laws and its Cap 153 laws of Kenya]

One of the arguments put forward very strongly by Dr. Gibson Kamau Kuria when he was teaching family law was that the Marriage Bill of 1976 was unconstitutional and for that reason could not be upheld. The Bill sought to harmonise different family law systems by introducing one law. He gave two reasons why the bill was unconstitutional. Historically it could not stand because it assumed that sociologically and politically the Kenyan people were one entity which they were not and his historical argument is the argument of the different law systems which was along racial lines and Kenya was still a very racially divided society. The Kenyan constitution guarantees a right to freedom of conscience and this includes freedom of religion and worship. Part of that freedom and worship is found in our different family laws. He argues that the statutory law is found on Christian norms and therefore it is the Christians choice to marry under Christian law, Muslims choice to marry under the Muslim Law likewise Africans were free to practice their customs under their customs and that to legislate under one uniform law for all would be unconstitutional.

Under the Draft Bill to alter the Constitution this argument is put forward under article 38 clause 5 the Bill provides that Parliament enacts legislation that will recognise marriages concluded under any tradition or under any system of religious, personal or family law. If the Bill is accepted then we are looking at the continued multiplicity of family laws in Kenya and there is no sign of any possible unification in the near future.

0. Attempts to Unify the Systems

Report of the Commission on the Law of Marriage and Divorce. There is an appendix of a Marriage Bill proposed in 1996 which sought to harmonise all family laws in Kenya. The report is also important in the sense that it summarises what the provisions are under the different systems of family law with regard to marriage and divorce and why it was thought necessary to harmonise all the family laws.

2.8 Applicability of English Law and Common Law Principles The introduction and application of English law saw the application of a variety of common law principles in Kenya. This is an anomaly given that we are almost 40 years into independence and yet we still apply English Laws and English Statutes particular in areas of family law. Common Law Presumptions Continued application of common law in form of common law presumptions which still apply to Kenya.

Islamic Family Law

The Constitution of Kenya preserves the application of Islamic law to family matters where all the parties concerned are Muslims. There is also the statutory basis for this application in the Mohammedan, Marriage, Divorce and Succession Act[footnoteRef:34]and the Mohammedan Marriage and Divorce Registration Act.[footnoteRef:35] There are large numbers of Muslims in Kenya representing different schools of Islamic law. Majority of African Muslims are of the Shafii school of the Sunni sect, while the non-African Muslim communities include members of most of the Shii communities. The groups have differing rules on certain points of family law.[footnoteRef:36] It will be noted that among some African Muslim communities conflict exists between traditional customs and the rules of Islam and the rules used in practice tend to be a synthesis of the two. [34: Cap 156 Laws of Kenya.] [35: Cap 155 Laws of Kenya.] [36: See Read, J.S., Family Law in Kenya, in MBaye, K. (ed.), Le Droit de la Famille en Afrique Noir et a Madagascar, 1968, Paris, page 281.]

Because Hindu[footnoteRef:37] and Muslim[footnoteRef:38] marriages were potentially polygamous the colonial courts declined to assume jurisdiction to grant matrimonial reliefs the way English courts did following Hyde vs. Hyde and another(1866) LR 1 P & D 13 rule. [37: See Ganga Devi vs. Tulsi Dass 9 EALR 64 and Kakar vs. Kumari 28 (2) KLR 34.] [38: See Mohammed vs. Fatuma 6 EALR 119 and Athuman vs. Baka 7 EALR 61.]

The laws that are now in application in the area of family are: customary laws of the indigenous communities; the common law which embodies the principles of English family and Christianity; Islamic law for both Africans and Asiatic Mohammedans; the Constitution of the Ismailis, the followers of the Aga Khan; and Hindu law for Hindus.[footnoteRef:39] The multiplicity of these laws has enabled the administration of law in conformity with the cultural tenets of the communities to which they apply, but the same presents a challenge in the proper administration of family law matters.[footnoteRef:40] [39: See Kakooza, J.M.N., Changes in Family Law, in (1968) 4(1 and 2) East African Law Journal 1.] [40: See Kakooza, J.M.N., Changes in Family Law, in (1968) 4(1 and 2) East African Law Journal 1.]

MARRIAGE

The institution of marriage is said to be a creation of morality, the moral law of the society being made up of the ideas which members of that society have in common about the right way to live. Indeed the association of men and women in wedlock from time immemorial has been of great importance to society to the extent that its regulation has always been seen as a matter of morals.[footnoteRef:41]The essential elements of marriage in law are supplied by a common humanity or self evident aspects of human nature that make marriage irresistible to men and women and the current ideal as regards the family organization in the particular society.[footnoteRef:42]Society establishes systems to govern the man-woman relationship. These include rules prohibiting incest, regulating how parties enter into the relationship, age at which the relationship may be commenced at, among others. [41: See Devlin, Patrick, The Enforcement of Morals, Oxford University Press, London, 1965, pages 61, 62.] [42: See Kuria, G.K., The African or Customary in Kenya Law Today, a paper presented at the Workshop on Conceptualising the Household: Issues of Theory Method and Application at the Harvard Institute for International Development, 2nd 4th November 1984.]

International instruments have identified the marriage institution as an essential part of society.[footnoteRef:43] The Universal Declaration of Human Rights declares the desire to associate with a member of the opposite sex, to marry and found a family as basic human rights.[footnoteRef:44]The International Covenant on Civil and Political Rights expounds on this,[footnoteRef:45] by recognizing the family as a natural and fundamental unit of society which needs the protection of both the society and the state. It also recognizes the right of men and women of marriage age to marry and found a family. It also sets out some of the prerequisites of marriage that must be protected by the state: it should be contracted consensually; there should be equality of rights and responsibilities as between the spouses, protection of children of the marriage, among others. [43: See Kakooza, J.M.N., Changes in Family Law, in (1968) 4(1 and 2) East African Law Journal 1 at 11.] [44: See Article 16.] [45: See Article 23.]

Marriage is a union between one man and one woman who intend to live together as husband and wife. In a polygamous marriage the man contracts separate marriages with each woman so that for each it is a union between one man and one woman. Marriage therefore is basically a consensual and social contract between the parties involved. The marriage contract is a species of a standard form contract since the parties to it do not determine its content. The state, in the case of statutory law, the religious leadership, in the case of Islamic law, and the elders, in the case of customary law, play the role of the stronger party in a standard form contract in terms of setting out the contents of the marriage contract.[footnoteRef:46]Whether the union should be monogamous or polygamous, whether it should be dissoluble or not, what obligations the spouses should undertake to each other are matters that society does not leave to the individuals concerned.[footnoteRef:47]The conventional marriage is that between a biological man and a biological woman.[footnoteRef:48]In African societies however there is also the woman to woman marriage, where one woman is notionally said to be marrying another.[footnoteRef:49]This type of marriage does not involve sexual relations between the women since it is essentially a device to aid a childless woman,[footnoteRef:50] for this reason it does not run counter to the conventional marriage, and there is really no practical difference between it and the conventional marriage.[footnoteRef:51] [46: Kuria, G.K., The African or Customary in Kenya Law Today, a paper presented at the Workshop on Conceptualising the Household: Issues of Theory Method and Application at the Harvard Institute for International Development, 2nd 4th November 1984, page 11. Some have argued that the marriage contract should be one where parties to it should be allowed the freedom to negotiate its terms. On the debate on whether that liberty should be permitted see: Weitzman, L.J., Marriage: The Status of Contract, The Free Press, 1981, and the review by Garrison, M., of Lord Devlins The Enforcement of Morals, in (1983) 131 (4) University of Pennsylvania Law Review, pages 1039-1062.] [47: Devlin, Patrick, The Enforcement of Morals, Oxford University Press, London, 1965, page 61. ] [48: See Bromleys Family Law, Butterworths, London, 1976, 5th edition, pages 105-130. See generally Cotran, E., Restatement of African Law: Marriage and Divorce, Kenya, Sweet & Maxwell, London, 1968.] [49: See Cotran, E., Restatement of African Law: Marriage and Divorce, Kenya, Sweet & Maxwell, London, 1968, pages 13, 26, 63, 74, 96, 196 and 117.] [50: Obi, S.N., Modern Faily Law in Southern Nigeria, Sweet & Maxwell, London, 1966, page 157.] [51: Kuria, G.K., The African or Customary in Kenya Law Today, a paper presented at the Workshop on Conceptualising the Household: Issues of Theory Method and Application at the Harvard Institute for International Development, 2nd 4th November 1984, page 11.Kuria, G.K., The African or Customary in Kenya Law Today, a paper presented at the Workshop on Conceptualising the Household: Issues of Theory Method and Application at the Harvard Institute for International Development, 2nd 4th November 1984, page 12.]

Marriage Systems in Kenya

The institution of marriage world over seeks to meet basic common needs of men and women. There are several basic needs of men and women which provide the philosophical basis of the marriage institution.[footnoteRef:52] There is the need to meet sexual needs in the best way. It also provides security as it applies to sex and other needs that can be guaranteed by marriage. There is the need by men and women to prevent themselves as individuals and as a society from extinction since men and women are products of seeds of men and women, hence the need to express ones manhood or womanhood through procreation. Human beings need a confidant with whom one shares their fears, hopes and anxieties. Marriage also provides one with extra physical, material and emotional support, since no one is capable of being self-reliant in a general way. Marriage also satisfies the need to give meaning to life through having children and thereby expressing the latent humanity or living as God or society demands.[footnoteRef:53]There is also the need to obtain identity with reference to a person of the opposite sex that is by being somebodys man or woman. [52: Kuria, G.K. , The Role of Law in African Traditional and Christian Marriages in Kenya, a paper delivered to the Catholic Society of the University of Nairobi at the Christian Leadership Centre on 23rd November 1977, pages 6, 7 and 8.] [53: Kuria, G.K. , The Role of Law in African Traditional and Christian Marriages in Kenya, a paper delivered to the Catholic Society of the University of Nairobi at the Christian Leadership Centre on 23rd November 1977, pages 6, 7. See also Kuria, G.K., The African or Customary in Kenya Law Today, a paper presented at the Workshop on Conceptualising the Household: Issues of Theory Method and Application at the Harvard Institute for International Development, 2nd 4th November 1984, pages 2, 3, 4.]

The Kenyan legal system is characterized by a multiplicity of marriage laws.[footnoteRef:54] Generally legal marriages in Kenya can be contracted under the Marriage Act which is open to all persons irrespective or race, and it provides for with both civil and Christian religious ceremonies. An African marrying under this statute removes him from the operation of African customary law as far as its legal incidents are concerned.[footnoteRef:55] There is also the African Christian Marriage and Divorce Act which lays down a simple procedure providing for marriages between African Christians and for the conversion or monogamisation of customary marriages into statutory marriage. An African marrying under this statute or converting his customary marruiage under the statute also removes himself from the operation of African customary law. The marriage ceases to be potentially polygamous and becomes monogamous. It cannot be dissolved extra-judicially, it for life dissoluble only by way of a valid judicial decree of divorce. He loses the capacity to marry another during the subsistence of the monogamous marriage contracted or upgraded or declared under the Act. The Matrimonial Causes Act governs the consequences of the monogamous marriages contracted under the Marriage Act and the African Christian Marriage and Divorce Act. Generally, the marriage statutes embody English values, and there is therefore the tendency to treat those Africans marrying under statute as being more or civlised compared with those marrying under customary law.[footnoteRef:56] The Hindu Marriage and Divorce Act and the Mohammedan Marriage, Divorce and Succession Act govern marriages of Hindus and Muslims performed in accordance with their laws. There are a myriad of customary laws which govern the marriage and divorce of the greater part of the African population. These various laws differ on vital matters relating to age requirements, consents, registration, grounds for divorce, which ultimately creates conflicts and administrative problems. These distinctions also militate against national integration.[footnoteRef:57] [54: See Kassam, F.M., Report of the Kenya Commission on Marriage and Divorce: A Critique,. In (1969) 2 East Africa Law Review 179 at 181. See also Kuria, Gibson Kamau, Christianity and Family Law in Kenya, in (1976) 11(1) East African Law Journal 33 at 43; Read, James S., When is a Wife not a Wife? (When shes a witness?), in (1966) 1(1-4) Journal of the Denning Law Society, 47 at 53; and Cotran, E., Restatement of African Law: Marriage and Divorce, Kenya, Sweet & Maxwell, London, 1968, Chap. 1.] [55: Kamau, G., Customary Marriages between Europeans and Africans in Kenya, in (1971) 4(3) East Africa Law Review 217 at 218.] [56: See Kuria, Gibson Kamau, Christianity and Family Law in Kenya, in (1976) 11(1) East African Law Journal 33 at 34. See also Read, James S., When is a Wife not a Wife? (When shes a witness?), in (1966) 1(1-4) Journal of the Denning Law Society, 47 at 34.] [57: See Kassam, F.M., Report of the Kenya Commission on Marriage and Divorce: A Critique, in (1969) 2 East Africa Law Review 179 at 182. See also Mayambala, E. N., Changing the Terms of the Debate: Polygamy and the Rights of Women in Kenya and Uganda, in (1997) 3(2) East African Journal of Peace and Human Rights 200 at 201.]

Marriages contracted under the Marriage Act, the African Christian Marriage and Divorce Act and the Hindu Marriage and Divorce Act are monogamous, while the rest are potentially polygamous. The statutes providing for monogamous matrriages in many ways resemble the English family law. In fact the Matrimonial Causes Act is reproduction of of certain provisions of the English Judicature Act of 1925 and the English Matrimonial Causes Act of 1837.[footnoteRef:58] The marriage systems in Kenya are grouped in a hierarchy with the monogamous systems (civil, Christian and Hindu) occupying the higher echelons and the potentially polygamous (Islamic and African customary law)[footnoteRef:59] types fill the subordinate positions. Although the law does recognize polygamous marriages, both African customary and Islamic, they appear to have been treated as inferior[footnoteRef:60] to monogamous marriages.[footnoteRef:61] In the final analysis, the African customary law marriages occupy the lowest degree of respect under the positive law.[footnoteRef:62]There is no legislation directly concerned with African customary marriages. The same is treated in legislation as rather inferior to the rest, and this explains the existence of express provisions in some pieces of legislation which permit the conversion or upgrading of these supposedly legal African customary marriages to the status of either the Islamic or Christian religious forms.[footnoteRef:63]There is no provision for the opposite process, that is to convert from monogamous to potentially polygamous marriage. One reasonable explanation for the absence of such provision was to encourage monogamy, which was regarded as the superior form of marriage.[footnoteRef:64] [58: See Carnie vs. Carnie (1966) EA 236.] [59: Shia Ismailias are monogamous since their personal matters are governed by the Ismaili Constitution, 1962, as the same has been judicially held to be applicable to them. See such cases as Sadrudin Saleh Mohammed vs. Firozhanu Gulamhusein Bhimji (1956) 23 EACA 369 and Maleksultan vs. Sherali Jeraj (1955) EACA 142.] [60: It was in the context of this supposed inferiority that the decisions in Rex vs. Amkeyo (1917) 7 EALR 14 and Abdulreheman bin Mohammed and another vs. R (1963) EA 188, were made, where it was held that communications between spouses of polygamous marriages were not privileged. The court took the view that the customary marriage had all the elements of a wife purchase and that such union cannot create the mutual trust and confidence which existed in civilised marriages, and it could not be said that such a wife was within the purview of the general rule that a husband or wife of the person charged is not a competent and compellable witness for the prosecution. See also Rex vs. Mwakio Asani s/o Mwanguku (1930) 14 KLR 133, Robin vs. R. (1929-30) 12 KLR 134, and R. vs. Toya s/o Mamure (1932) 14 KLR 145.] [61: See Kassam, F.M., Report of the Kenya Commission on Marriage and Divorce: A Critique,. In (1969) 2 East Africa Law Review 179 at 183.] [62: See Gutto, S.B.O. and A.H. Khamati, Marriage Break-down and the Law of Custody and Maintenance of Children in Kenya, a paper presented at a seminar on children and the law in Kenya held on 13 -14 July 1979 at the University of Nairobi, at page 3. See also Ojwang J.B., Polygamy as a Legal and Social Institution in Kenya in (1974) 10(1) East African Law Journal 63.] [63: See Gutto, S.B.O. and A.H. Khamati, Marriage Break-down and the Law of Custody and Maintenance of Children in Kenya, a paper presented at a seminar on children and the law in Kenya held on 13 -14 July 1979 at the University of Nairobi, at page 2.] [64: See Kassam, F.M., Report of the Kenya Commission on Marriage and Divorce: A Critique,. In (1969) 2 East Africa Law Review 179 at 183, 184.]

Customary Law

In traditional Africa, the society was communalistic in structure and organization, apparently founded on the notion that it was the best way then for individuals to lead a good life, and the marriage arrangement in place was influenced by this philosophy. To Africans marriage is the focus of existence and everything else hinges on it.[footnoteRef:65] Marriage has its foundations in religion and it is tied up with the concept of personal immortality of the parties. The man-woman relationship is seen as the insurance to a secure future, and for that reason the relationship has to be established openly, inbreeding is prohibited to ensure the survival of the society and emotional security demands that certain unions by people related to one another through blood and marriage be forbidden.[footnoteRef:66] Amongst Africans procreation is treated as the principal object of marriage. Marriage is an alliance not only of the man and the woman or one man and several women; it is also an alliance of families of the wife or wives and the husband. It expresses the communal life of Africans. All the incidents of a customary marriage are evidence of this. The concept of dowry or marriage payments and parental consent, for example, strengthen the family. Members of the mans extended family participate in the payment of dowry by contributing to it. On the other hand members of the womans extended family are expected to share the same once it is paid to them.[footnoteRef:67] [65: Mbiti, J.S., African Religions and Philosophies, Heinemann, London, 1969, pages 26, 133 and 210.] [66: Kuria, G.K., The African or Customary in Kenya Law Today, a paper presented at the Workshop on Conceptualising the Household: Issues of Theory Method and Application at the Harvard Institute for International Development, 2nd 4th November 1984, page 4.] [67: Kuria, G.K. , The Role of Law in African Traditional and Christian Marriages in Kenya, a paper delivered to the Catholic Society of the University of Nairobi at the Christian Leadership Centre on 23rd November 1977, page 7.]

There is no legislation directly concerned with the African customary marriage, although marriage according to the rules of customary law is still in general the most common form of marriage.[footnoteRef:68] The same is treated in legislation as rather inferior to the rest, and this explains the existence of express provisions in some pieces of legislation which permit the conversion or upgrading of these supposedly legal African customary marriages to the status of either the Islamic[footnoteRef:69] or Christian[footnoteRef:70] religious forms.[footnoteRef:71]Judicial opinion on the African customary law marriage has in the past also been unkind, especially during the colonial period. The most famous negative opinion being expressed in Rex vs. Amkeyo 1917 KLR 14, where Sir Robert Hamilton CJ said that he did not think that it can be said that the native custom (on marriage) approximates in any way the legal idea of marriage. [68: See See Read, James S., When is a Wife not a Wife? (When shes a witness?), in (1966) 1(1-4) Journal of the Denning Law Society, 47 at 54. See also Read, J.S., Family Law in Kenya, in MBaye, K. (ed.), Le Droit de la Famille en Afrique Noir et a Madagascar, 1968, Paris, 243 at 245 and 253.] [69: Cap 156, Section 6. ] [70: Cap 151, Section 9.] [71: See Gutto, S.B.O. and A.H. Khamati, Marriage Break-down and the Law of Custody and Maintenance of Children in Kenya, a paper presented at a seminar on children and the law in Kenya held on 13 -14 July 1979 at the University of Nairobi, at page 2.]

Later judicial opinion on African customary laws of marriage has been more favourable. This could be explained on the basis of the attainment of independence as well as the Africanisation of the bench. In Mwagiru vs. Mwangi (1967) EA 639, Miller J[footnoteRef:72] stated that a marriage contracted under Kikuyu custom can result in a perfectly valid marriage provided there has been compliance with the rules which govern such form of marriage. In Case vs. Ruguru (1970) EA 65, the same judge observed that it is settled law that marriages properly contracted under customary law are of legal effect and matters pertaining to promises and preparations are cognizable by the courts depending on the circumstances.[footnoteRef:73]Miller J, in William Muli vs. Francis Kithuka (1971) KHCD 118, strongly observed that it was wholly erroneous to entertain the notion that customary law marriages are inferior to those contracted under statute. [72: The judge was a black man from Guyana.] [73: See Kamau, G.K., Customary Marriages between Europeans and Africans in Kenya. (1971) 4 East Africa Law Review 217.]

African traditional marriages are regulated by customary law whose legal bases for application are to be found in several statutory provisions,[footnoteRef:74] including section 82(4) (b) of the Constitution, section 3(2) of the Judicature Act and the Magistrates Courts Act. The Constitution of Kenya theoretically embodies the highest legal norms and standards in the state to which all laws must conform, provides general recognition of customary laws.[footnoteRef:75]The provision also allows the promulgation of discriminatory laws on adoption, marriage, divorce or other matters of personal law. Differential laws are proper in certain areas in a plural society as obtaining in Kenya, but such a provision may also permit prejudicial categorization of legal standards as those found in Kenyan legislation that make African customary law of marriages subordinate to the other systems.[footnoteRef:76] [74: See Mayambala, E. N., Changing the Terms of the Debate: Polygamy and the Rights of Women in Kenya and Uganda, in (1997) 3(2) East African Journal of Peace and Human Rights 200 at 202.] [75: Section 82(4)(c).] [76: See Gutto, S.B.O. and A.H. Khamati, Marriage Break-down and the Law of Custody and Maintenance of Children in Kenya, a paper presented at a seminar on children and the law in Kenya held on 13 -14 July 1979 at the University of Nairobi, at page 2.]

The legality of African customary law marriages is recognized by the Judicature Act[footnoteRef:77]which provides, in Section 3(2), that the courts in Kenya determining disputes brought before them are to be guided by African customary law in civil cases in which one or more of the parties is subject to it so far as it is applicable and is not repugnant to justice and morality or inconsistent with any written law. This is a conditional recognition of African customary law and it is of a general nature, and marriage, divorce and other personal matters are assumed to be covered within the provision.[footnoteRef:78] [77: Cap 8 Laws of Kenya.] [78: See Gutto, S.B.O. and A.H. Khamati, Marriage Break-down and the Law of Custody and Maintenance of Children in Kenya, a paper presented at a seminar on children and the law in Kenya held on 13 -14 July 1979 at the University of Nairobi, at page 3. Compare with Mayambala, E. N., Changing the Terms of the Debate: Polygamy and the Rights of Women in Kenya and Uganda, in (1997) 3(2) East African Journal of Peace and Human Rights 200 at 203, who holds the opinion that section 3 of the Judicature Act makes it mandatory, where the parties are Africans, for the courts to apply African customary law provided the same is not contrary to any written law, common law, doctrines of equity and is not repugnant to natural justice. ]

The Magistrates Courts Act[footnoteRef:79]recognizes the legality of African customary marriage laws in a more specific and relevant nature. Section 2 of the Magistrates Courts Act provides that a claim under customary law means a claim concerning, inter alia: marriage; divorce; maintenance; dowry; seduction or pregnancy of an unmarried woman or girl; matters affecting status, particularly of women, widows and children, including guardianship, custody, adoption and legitimacy; and succession. The Evidence Act[footnoteRef:80]in Section 130(2) provides that marriage is recognizable whether or not monogamous, which is by law binding during the lifetime of both parties unless dissolved according to law, and it includes a marriage under native or tribal custom.[footnoteRef:81] [79: Cap 10 Laws of Kenya. ] [80: Cap 80 Laws of Kenya.] [81: See also Sections 59, 60 and 127 of the Evidence Act.]

The Marriage Act recognizes the legality of African customary marriages under Section 37, which prohibits any person married under the Marriage Act from contracting another marriage under native law or custom during the subsistence of the civil marriage saving that nothing in the Marriage Act affects the validity of any marriage contracted under any customary law. Under section 49 of the Marriage Act it is an offence for any person married in accordance with native or custom to contract a civil marriage under the Marriage Act to any person other than the person with whom such person is married under such native law.[footnoteRef:82] But this recognition is made superfluous by Section 11(d) and Section 35(1) which permit the conversion of marriages contracted under Islamic law and customary law, respectively, to the monogamous Christian-civil marriage which is presumably the better system.[footnoteRef:83] [82: See also Mayambala, E. N., Changing the Terms of the Debate: Polygamy and the Rights of Women in Kenya and Uganda, in (1997) 3(2) East African Journal of Peace and Human Rights 200 at 203.] [83: See Gutto, S.B.O. and A.H. Khamati, Marriage Break-down and the Law of Custody and Maintenance of Children in Kenya, a paper presented at a seminar on children and the law in Kenya held on 13 -14 July 1979 at the University of Nairobi, at page 3.]

It bears repeating that there is no legislation directly concerned with African customary marriages, either on its content and substance or on its procedures.[footnoteRef:84] The customary laws of all the nationalities in Kenya have been documented in a Restatement of the law, the famous Restatement of African Law, Kenya, Volume 1: The Law of Marriage and Divorce by Eugene Cotran.[footnoteRef:85]The Restatement does not have the force of law, but it has been cited frequently in Kenyan courts and has been relied upon in several cases involving different aspects of customary law.[footnoteRef:86] The courts also take judicial notice of known customary law rules,[footnoteRef:87] and follow judicial precedent in respect of customary law issues that have been handled by the superior courts. Otherwise where the existence of a particular native law, rule or custom cannot be established by any of the ways mentioned here before, the same must be proved by oral evidence or expert opinion adduced by the parties.[footnoteRef:88] [84: Tanzania has enacted much of the customary laws in that country in the Declarations of Local Customary Law, 1963 and 1964.] [85: 1968, London, Sweet & Maxwell. The Restatement is still believed to be a fair representation of customary law in Kenya despite having been compiled in the 1960s. However, due to the flexibility and dynamism of customary law the revision of the Restatement is overdue.] [86: The Restatement was applied in Otieno vs. Ougo Nairobi CACA No. 31 of 1987.] [87: See Kimani vs. Gikanga (1970) EA 735. ] [88: See Mayambala, E. N., Changing the Terms of the Debate: Polygamy and the Rights of Women in Kenya and Uganda, in (1997) 3(2) East African Journal of Peace and Human Rights 200 at 203. See also Kimani vs. Gikanga (1970) EA 735.]

English Law

The Kenyan law equates the English type of marriage to a Christian marriage.[footnoteRef:89] This is so because the English law of marriage has its foundation in Christianity. The English society derives its morality from Christianity,[footnoteRef:90] although since the start of the 19th century there has been a movement towards secularism.[footnoteRef:91] The English institution of marriage therefore bears both Christian and secular characteristics. These characteristics were defined in Hyde vs. Hyde and Woodmanse (1866) 1 LR 1 P & D 1230 where Lord Penzance said I conceive that marriage as understood in Christendom maybe defined as the voluntary union for life of one man and one woman to the exclusion of all others. This definition has been adopted in Section 2 of the Matrimonial Causes Act to govern the marriages contracted under the Marriage Act and the African Christian Marriage and Divorce Act.[footnoteRef:92]This would mean that divorce and other matrimonial remedies based on English law, but provided under Kenyan are not available except for spouses married under statute or for persons who marry abroad under a system of monogamous marriage. It is noteworthy that Section 2 of the Matrimonial Causes Act applies the definition in Hyde vs. Hyde and Woodmanse (1866) 1 LR 1 P & D 1230 to the Matrimonial Causes Act only.[footnoteRef:93] [89: See Kuria, Gibson Kamau, Christianity and Family Law in Kenya, in (1976) 11(1) East African Law Journal 33 at 34. See also Read, James S., When is a Wife not a Wife? (When shes a witness?), in (1966) 1(1-4) Journal of the Denning Law Society, 47 at 43-46.] [90: Devlin, P., The Enforcement of Morals, Oxford University Press, London, 1965, page 62.] [91: See Kuria, G.K., Internal Conflict of Laws in English Speaking African Countries, a paper presented at the World Congress of Sociology in Uppsala in August 1978, page 6.] [92: See Kuria, Gibson Kamau, Christianity and Family Law in Kenya, in (1976) 11(1) East African Law Journal 33 at 34. See also Read, James S., When is a Wife not a Wife? (When shes a witness?), in (1966) 1(1-4) Journal of the Denning Law Society, 47 at 57.] [93: See Read, James s., When is a Wife not a Wife? (When shes a witness?), in (1966) 1(1-4) Journal of the Denning Law Society, 47 at 57.]

The English type of marriage is a voluntary union based on consent. It is essentially monogamous. Before secularism developed the dominant theology was that the Christian marriage is monogamous. The modern explanation for monogamy is that it is in keeping with human nature that expresses itself through todays equality of the sexes.[footnoteRef:94] It is at also meant to be for life, which means that it can only be dissolved by death. This notion that marriage is for life has its origin in Christianity. Since the introduction of secularism into personal law matters the expression for life means that the parties must have intended marriage to be a permanent as opposed to a temporary union.[footnoteRef:95]In Nachimson vs. Nachimson (1930) P 217, it was held that a marriage is still for life even if it can be dissolved easily. What is important is that it should be intended to be for life when it is entered into. [94: See Kuria, G.K., Internal Conflict of Laws in English Speaking African Countries, a paper presented at the World Congress of Sociology in Uppsala in August 1978, page 6.] [95: Kuria, G.K. , The Role of Law in African Traditional and Christian Marriages in Kenya, a paper delivered to the Catholic Society of the University of Nairobi at the Christian Leadership Centre on 23rd November 1977, page 11.]

The English common law is not clear on the main purposes of the English law marriage. The English courts have given differing reasons and explanations for this type of marriage. In D.E. vs. A.G. 163 ER 1039 and Baxter vs. Baxter (1948) AC 274, for example, the court appeared to treat enjoyment of sex and companionship as the main purposes of the English marriage. On the other hand in Cowen vs. Cowen (1945) 2 All ER 197, Corbett vs. Corbett (1970) 2 WLR 1306 and Re D (An Infant) (1976) 2 WLR 279, the court took the view that procreation is the main objective of marriage. The differences reflected in these approaches are indicative of the possibly antagonistic secular, Christian and humanistic attitudes towards marriage.[footnoteRef:96] [96: Kuria, G.K.., Internal Conflict of Laws in English Speaking African Countries, a paper presented at the World Congress of Sociology in Uppsala in August 1978, page 6.]

The English law is hostile to polygamy, which is common among societies in Asia and Africa.[footnoteRef:97] This hostility is displayed openly in the decisions emanating from the English courts where polygamous marriages came up for consideration.[footnoteRef:98]In Hyde vs. Hyde and Woodmanse (1866) 1 LR 1 P & D 1230, the court declared that it had no jurisdiction to grant matrimonial relief in a potentially polygamous marriage contracted in the United States of America. In the matter the petitioner was a Mormon, whose faith recognized polygamy, his marriage to the respondent was therefore polygamous.[footnoteRef:99]In Re Bethel (1888) 38 ChD 220, the court declined to treat as a marriage for the purpose of succession a marriage union contracted by an Englishman and an African woman in accordance with African customary law since under that law polygamy is allowed.[footnoteRef:100] In Baindail vs. Baindail (1946) P 122, the court recognized a potentially polygamous marriage only for the purpose of enabling the English woman to obtain a decree of nullity of marriage where she had purported to marry a man whose personal law allowed polygamy.[footnoteRef:101]The latter decision and others made around that time postulate the recognition of polygamous marriages by English law for a few limited purposes.[footnoteRef:102]These latter cases represent the modern position where such marriages are recognized for certain purposes but not for others.[footnoteRef:103] [97: See the remarks of Sir Robert Hamilton, CJ, in Rex vs. Amkeyo 1917 KLR 14. Indeed, there has been considerable debate, especially amongst English legal scholars, on the issue of whether or not a polygamous marriage is really a marriage. According to John Austin, in Lectures on Jurisprudence, 5th ed., revised by Campbell, R., 1885, London, John Murray, and his followers, a custom does not have the character of law and therefore an institution founded on it, like a polygamous marriage, cannot be seen as a legal institution. James Read in Read, J.S., Family Law in Kenya, in MBaye, K. (ed.), Le Droit de la Famille en Afrique Noir et a Madagascar, 1968, Paris, 243; Sir Paul Vinogradoff in Sir Paul Vinogradoff in Outlines of Historical Jurisprudence, 1920, Vol.1, 167 quoted in Phillips, A., Introductory Essay, in Phillips, A. and Morris, H.F., Marriage Laws in Africa, 1971, London , Oxford University Press; and Cotran, E., The place and Future of Customary Law in East Africa, in East Africa Law Today, London, the British Institute of International and Comparative Law, Commonwealth Law Series No. 5, 1966, 89, 90; all strongly take the view that polygamous marriages are legal.] [98: See Bartholomew, G.W., Polygamous Marriages, in (1952) 15 Modern Law Review 37. and Hartley, T.C., Polygamy and Social Policy, in (1969) 32 Modern Law Review155.] [99: The rule in Hyde vs. Hyde and Woodmanse (1866) 1 LR 1 P & D 1230 was reiterated in England in the case of a Ghanaian customary law marriage in Sowa vs. Sowa (1961) P. 80; (1961) 1 All ER 683; (1961) 2 WLR 313.] [100: See also Harvey vs. Farnie (1880) 6 PD 35.] [101: See also Srinivasan vs. Srinivasan (1946) P. 67; Mehta vs. Mehta (1945) 2 Al ER 691; the Sinha Peerage Case (1946) 1 All ER 348. ] [102: See Ojwang J.B., Polgamy as a Legal and Social Institution in Kenya in (1974) 10(1) East African Law Journal 63 at 68. ] [103: See Read, James S., When is a Wife not a Wife? (When shes a witness?), in (1966) 1(1-4) Journal of the Denning Law Society, 47 at 57, 58.]

This hostility to polygamy was founded on the Christian belief that God had ordained only the monogamous marriage and that polygamy really was a practice that encouraged adultery. It was also founded on racism, where the cultures of the people of Asia and Africa were generally treated as inferior to the European culture.[footnoteRef:104]There really is no law which can be said to be truly Christian, or applying exclusively to Christians, whether African, European or Asian. The law for those Kenyan redisents who consider themselves to be Christians is English law.[footnoteRef:105] The Kenyan law can be said to be Christian in only two senses. It permits Christians to marry in accordance with their beliefs under the Marriage Act or under the African Christian Marriage and Divorce Act. Once the marriage is contracted Christianity is not allowed under the legislation to dictate the content of the marriage. The legislation, especially the Marriage Act has sanctions that force Africans to retain the monogamous nature of the marriage celebrated. The issue really is whether marrying under statute Christianizes the marriage or it merely anglicizes it by bringing oneself under the realm of the English family law.[footnoteRef:106] [104: Kuria, G.K. , The Role of Law in African Traditional and Christian Marriages in Kenya, a paper delivered to the Catholic Society of the University of Nairobi at the Christian Leadership Centre on 23rd November 1977, page 11. See also Ojwang J.B., Polgamy as a Legal and Social Institution in Kenya in (1974) 10(1) East African Law Journal 63 at 67.] [105: Kuria, G.K., The Role of Law in African Traditional and Christian Marriages in Kenya, a paper delivered to the Catholic Society of the University of Nairobi at the Christian Leadership Centre on 23rd November 1977, page 13.] [106: Ndulo, Muna, Bigamy and an African Society in (1974) Zambia Law Journal 131,132.]

Islamic Law

Statutory law gives express recognition to Islamic marriages. Marriages contracted in accordance with Mohammedan law are recognized in Kenya by the Mohammedan Marriage, Divorce and Succession Act.[footnoteRef:107] Under section 49 of the Marriage Act it is an offence for any person married in accordance with Mohammedan law to contract a civil marriage under the Marriage Act to any person other than the person with whom such Mohammedan marriage is contracted.[footnoteRef:108] [107: See section 3.] [108: See Mayambala, E. N., Changing the Terms of the Debate: Polygamy and the Rights of Women in Kenya and Uganda, in (1997) 3(2) East African Journal of Peace and Human Rights 200 at 203.]

Although it is regarded in the superior courts of Kenya that in cases affecting personal status between Muslims the law to be applied is Islamic law as interpreted by judicial decision, there is doubt as to whether this position rests on a secure statutory basis.[footnoteRef:109] There is also doubt that there is any meaningful judicial guidance available to a court confronted with a problem of whether and on what grounds to apply Muslim law to an issue before it.[footnoteRef:110] The exact statutory basis for and the extent of the application of Muslim law in Kenya is the problem, as there is no statute in Kenya setting out generally when Muslim law is applicable, which leaves the court with a fairly wide discretion.[footnoteRef:111] In the Kadhis courts the applicable law is[footnoteRef:112] and has always been in practice Muslim law, but the law to be applied by the superior courts is not well settled.[footnoteRef:113] [109: Fatima Binti bin Salim Bakhshuwen vs. Mohamed bin Salim Bakhshuwen (1949) 16 EACA 11, see judgement of Nihill CJ at page 13.] [110: See Sawyerr, G.F.A., The Application of Muslim Law in Kenya: A Brief Note, in (1968) 1(3) East Africa Law Review 285. ] [111: See Sawyerr, G.F.A., The Application of Muslim Law in Kenya: A Brief Note, in (1968) 1(3) East Africa Law Review 285 at 293.] [112: According to the Kadhis Courts Act (Cap. 11 Laws of Kenya), sections 5 and 6.] [113: See Sawyerr, G.F.A., The Application of Muslim Law in Kenya: A Brief Note, in (1968) 1(3) East Africa Law Review 285. ]

The difficulty faced by Kenyan courts in that respect manifests itself in Fatima Binti bin Salim Bakhshuwen vs. Mohamed bin Salim Bakhshuwen (1949) 16 EACA 11 and Shallo vs. Maryam (1967) EA 409 (Harris J).[footnoteRef:114]In Fatima Binti bin Salim Bakhshuwen vs. Mohamed bin Salim Bakhshuwen (1949) 16 EACA 11, the issue touched on the validity of a wakf in Kenya. The dispute was litigated up to the Privy Council, where the wakf was upheld on the basis that Islamic law in East Africa is the same as in India where the institution of wakf is recognized. The Kenyan law was at the time silent on its legality in Kenya and there was also insufficient authority on how to apply Muslim law to it. In Shallo vs. Maryam (1967) EA 409 (Harris J), the issue was the applicability of the principle of the presumption of benami under Muslim law in Kenya. The court held that the benami principle applied in Kenya, and, following Fatima Binti bin Salim Bakhshuwen vs. Mohamed bin Salim Bakhshuwen (1949) 16 EACA 11, stated that the principle applies in Kenya as it applies between Muslims in India, which appears to suggest that rules of Muslim law in India are binding on Kenyan courts. The court observed that the effect of the transaction, the subject of the dispute before the court, was not covered by the existing laws, including any written law in force in Kenya.[footnoteRef:115] [114: See also Anarali Museraza vs. Mohammedali Naserali Jiwa (1966) EA 117 and Mussa Ayoob vs. Maleksultan Ayoob (1967) EA 416 and (1968) EA 72. ] [115: Sawyerr, in Sawyerr, G.F.A., The Application of Muslim Law in Kenya: A Brief Note, in (1968) 1(3) East Africa Law Review 285 at 290, is of the view that the court, under the statutory scheme for the application of law, should have looked at the common law, equity and the English statutes of general application, which would have led it to apply the principles of English private international law under which the law governing matters of land is the law of the place where the land is situate, the lex situs, in the instant case being Islamic law, which would have led to the conclusion that the doctrine of benami formed part of the Muslim law of Mombasa. There is judicial precedent for this approach set in the Privy Councils decision in the Zanzibar case of Secretary of State for Foreign Affairs vs. Charlesworth Pilling and another (1901) AC 373 and in the Kenyan case of Said bin Seif vs. Shariff Mohammed Shastry (1938) 19 KLR 9, among others. Sawyerr also argues that the reliance by the court on the principle set by the Privy Council in Fatima Binti bin Salim Bakhshuwen vs. Mohamed bin Salim Bakhshuwen (1949) 16 EACA 11, should have forced the court to consider the universality of the benami doctrine as a Muslim custom, as the court did in Fatima Binti bin Salim Bakhshuwen vs. Mohamed bin Salim Bakhshuwen (1949) 16 EACA 11 with regard to the wakf.]