FAMILY LAW

1. Introduction to Family Law

1.1. Family as an Institution
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.

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
recognised marriage. The law also restricts the right to terminate that
legal status.

1.2. Necessity for Regulation of Family

The family is regulated because it serves a number of purposes in
society.

(i) It is the basic component of a society (Article 16 of the

Universal Declaration of Human Rights; [article 45(1) of the
Constitution states that. “The family is the natural and
fundamental unit of society and the necessary basis of social
order, and shall enjoy the recognition and protection of the
State.”]).

(ii) It is the basic economic unit of society that is most productive

activities take place within the family set up.

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 (iii) The family set-up provides for a framework for the parties to
have satisfactory sexual expression.

(iv) It guarantees perpetuation of society through the receiving of

offspring.

(v) It provides a framework for companionship between the

members of that family.

1.3. The Objects of Family Law

1. It 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 other’s property. Altering the status of parties
in the family.

2. A remedial role - 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.

Note - The trend now is that not all family relationships are created
by marriage ceremonies such as cohabitation, single parents. The
law has developed to recognise some of these relationships.

1.4. Major functions of family law

The Five Functions of Family Law is:

1.4.1. Protective Function

One of law’s most basic duties is to protect citizens against harm done
them by other citizens. This means protecting people from physical
harm, as the law of spouse and child abuse attempts to do, and from
non-physical harms, especially economic wrongs and psychological
injuries.

1.4.2. Facilitative

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To help people organize their lives and affairs in the ways they prefer.
Family law performs this ‘facilitative’ function by offering people the
law’s services in entering and enforcing contracts, by giving legal effect
to their private arrangements.

1.4.3. Dispute Resolution

The role is to help people resolve disputes. The current law of divorce
“exemplifies family law’s ‘arbitral’ function, since today’s divorce courts
primarily adjudicate conflicting claims to marital property, alimony, and
child custody.

1.4.4. Expressive
Family law works by deploying the law’s power to impart ideas through
words and symbols. MaryAnn Glendon notes in the introduction to her
study comparing abortion and divorce law in the United States and
Western Europe that law, “in addition to all the other things it does, tells
stories about the culture that helped to shape it and which it in turn
helps to shape: stories about who we are, where we came from, and
where we are going.

1.4.5. Channeling
The law creates or (more often) supports social institutions which are
thought to serve socially desirable ends. The channelling function works
partly as a way of performing law’s protective, facilitative, and dispute
resolution functions, but the channelling function is also something
more. It has several tasks: first to recruit, mould, and sustain social
institutions, and second to channel people into institutions. It generally
works by indirect means, such as by recognizing and endorsing
institutions, rewarding participation in some institutions, disfavouring
competing institutions, and penalizing non-use of particular institutions.
It has an efficiency component, so that people entering an institution do
not have to invent all the rules from scratch, and people outside that

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institution can have a clear understanding of the rules governing those
within the institution.

The advantages of institutions in family law are illuminated by situations

involving their absence, such as stepparent situations. Channelling
institutions “set bright lines which establish for all concerned what
people’s status is. They make it easier for people to predict the
consequences of their own acts. Further, they protect people from
intrusive governmental inquiries.

1.5. History of the Family as an Institution

The trend now is that not all family relationships are actually created
inside a marriage relationship. Some of the developments in law have
been to deal with these issues, under common law and equity there is
recognition given to cohabitees. Children born out of marriage also
acquire some role in the family institution.

Engels in his book, The Origins of the Family, Private Property and The
State says that the institution of the family has not existed for all times.
There was an ancient primitive stage of promiscuity where there were no
restrictions as regarding sexual relations and it was a free for all.

Family developed along four main stages:

1.5.1. Consanguine Family

Here the marriage groups are separated according to generations: all
the grandfathers and grandmothers within the limits of the family are all
husbands and wives of one another; so are also their children, the
fathers and mothers; the latter’s children will form a third circle of
common husbands and wives; and their children, the great-
grandchildren of the first group, will form a fourth. In this form of
marriage, therefore, only ancestors and progeny, and parents and
children, are excluded from the rights and duties (as we should say) of
marriage with one another. Brothers and sisters, male and female

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cousins of the first, second, and more remote degrees, are all brothers
and sisters of one another, and precisely for that reason they are all
husbands and wives of one another.

1.5.2. Punuluan Family

If the first advance in organization consisted in the exclusion of parents
and children from sexual intercourse with one another, the second was
the exclusion of sister and brother. On account of the greater nearness
in age, this second advance was infinitely more important, but also more
difficult, than the first. It was effected gradually, beginning probably with
the exclusion from sexual intercourse of own brothers and sisters
(children of, the same mother) first in isolated cases and then by
degrees as a general rule (even in this century exceptions were found in
Hawaii), and ending with the prohibition of marriage even between
collateral brothers and sisters, or, as we should say, between first,
second, and third cousins.

1.5.3. Pairing Family

The essence of the pairing family is that one man lives with one woman
but the relationship is such that polygamy and occasional infidelity on
the part of the man is permissible. However the woman is required to be
strictly faithful and adultery on her part is strictly punished. To some
people this is where subjugation of women starts. Restrictions on sexual
relations are extended so that there is a progressive stage within which
conjugal relations can take place. In the pairing family conjugal relations
are more restricted and women are restricted only to their husbands
who cannot be their brother.

1.5.4. Monogamous Family

It is based on the supremacy of the man, the express purpose being to
produce children of undisputed paternity; such paternity is demanded
because these children are later to come into their father’s property as

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his natural heirs. It is distinguished from pairing marriage by the much
greater strength of the marriage tie, which can no longer be dissolved at
either partner’s wish. As a rule, it is now only the man who can dissolve
it, and put away his wife.

The right of conjugal infidelity also remains secured to him, at any rate
by custom (the Code Napoleon explicitly accords it to the husband as
long as he does not bring his concubine into the house), and as social
life develops he exercises his right more and more; should the wife recall
the old form of sexual life and attempt to revive it, she is punished more
severely than ever.

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2. Historical Development of Family Laws
in Kenya
1.6. Introduction
The studying point in family law is the 1897 East Africa Order in Council
which applied certain Indian and British Acts of Parliament to the East
African Protectorate. It also applied the common law of England which
was in force at the time.

1.7. Applicability of the 1897 Order-Council and

Subsequent Laws
Insofar as the natives were concerned, the Order-in-Council had limited
application. It provided that cases against natives would be brought in
Native Courts. The 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, the law of their caste or
tribe was applicable insofar as it could be ascertained and insofar as it
was not repugnant to national morality. This is the formulation found in
our Judicature Act insofar as the application of customary law is
concerned.

For those natives who were Muslims, Islamic law would apply to them
and this was with regard to matters affecting personal status.

There were also two other communities in Kenya at the time, the British
Colonisers 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.
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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 Hindus? The assumption was that in Kenya,
they would apply. For example the Indian Succession Act of 1865 was
one of the Indian Acts applied under the 1897 Order-in-Council. In India
it had been expressly stated that that particular Act did not apply to
succession matters of Hindus in which case in India they applied their
customary succession laws in matters of succession. When this
particular Act was applied in Kenya there was no such exclusion with
regard to the Kenya Hindus.

There were also issues as regards marriage and divorce and they applied
English Marriage Laws. There was a bit of problem with regard to the
Hindus in Kenya especially between 1897 and 1898 when it was stated
that the Indian Succession Act did not apply to Hindus and that they
were to be governed by their own customary law.

For those Hindus who had converted to Christianity, two Acts were
passed to cater for their succession, the Hindu Wills Act and the Probate
and Administration Act of India. The assumption was that the orthodox
Hindus applied their customary law in matters of succession. Thus, as
early as 1898, different laws governed different peoples.

In 1902, the East Africa Order-in-Council was promulgated to clarify

further on the applicability of customary law. It stated 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 formulation of the Order-in-Council is the same formulation that we

have in Section 3 of our Judicature Act insofar as application of

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customary law is concerned. In areas of family law for those who still
practice customary law are still governed by African Customary Law.
Muslims still continue to be governed by Muslim Law.

1.8. Formalisation of Family Law

1.8.1. The Marriage Ordinance
The 1902 Order-in-Council gave the Commissioner power to make laws
which would apply in the protectorate and one of the first laws to be
made 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.

The ruling in Cole v. Cole exemplifies 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 man’s property. The man’s brother
argued that under Customary Law he was the one entitled to inherit the
man’s property while the wife argued that since they had married under
the Marriage Ordinance they had distanced themselves from the African

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way of life. Therefore, African customary law did not apply but instead,
the English Law of Succession applied. 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.

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.” This illustrates 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.

1.8.2. The Native Christian Marriage Ordinance of 1904

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.

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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.

The Native Christian Marriage Ordinance was replaced in 1981 with the
African Christian Marriage and Divorce Act, Cap 151 of the laws of Kenya
that was repealed in 2014 by the Marriage Act.

1.8.3. The Enactment of the Divorce Ordinance

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. This is still the position to the
present day. It was replaced by the Matrimonial Causes Act in 1941.

In 1928, additional relieve were accorded by The Separation Courts

(Separation & 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.

It continued to exist under the same name in the Kenyan laws as Cap
153 which was repealed in 2014 by the Marriage Act, 2014.

1.8.4. A Statute for the Muslims

In 1906 the Mohammedan Marriage & Divorce Registration Ordinance
was introduced to provide for registration of Islamic Marriages and
Divorces.

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It is notable that this Act only provided for registration of Muslim
marriage or divorce. The Act was basically procedural and not
substantive.

It has now been repealed by the Marriage Act, 2014.

1.8.5. A Statute for the Hindus

The orthodox Hindus marriages were potentially polygamous. However,
when the Hindu Marriage Divorce and Succession Ordinance was
enacted in 1946, it effectively marked Hindus’ parting way with Hindu
Customary Law. The Act provided all Hindu Marriages were to be
monogamous. It also extended to Hindus the reliefs that are available
under the Matrimonial Causes Act and under the Subordinate Courts
(Separation and Maintenance) Act. These statutes have now been
repealed by the Marriage Act.

1.9. Systems of Marriage and Family Law in Kenya

Against this historical backdrop, there exist diverse family law systems
in the country. Five different systems of marriages from which diverse
family law systems in Kenya are derived. These are:

(i) Civil marriages;

(ii) Christian marriages;

(iii) Hindu marriages;

(iv) Muslim marriages; and

(v) Customary marriages.

1.10. The Marriage Act of 2014

The aim of the 2014 Act was to consolidate the law regulating all forms
of marriages. The Act does not create one single system of marriage. It
rather puts regulation of all forms of marriage under one consolidated
system.

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The Act therefore repeals all the laws that regulated matrimonial
relationships between diverse groups. However, it does not do very
much to change the content of the various legal systems insofar as
marriage is concerned.

Notable also, the Marriage Act provides for matrimonial causes law in all
the systems of marriage. It repeals the Matrimonial Causes Act and
makes new provisions regarding application for nullification, divorce,
maintenance, etc. regarding not only to the civil, Christian and Hindu
marriages, but also in relation to the Customary and Islamic marriages.

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3. Multiplicity of Family Laws in Kenya
and its Consequences
1.11. Introduction
There have been many unsuccessful attempts to harmonise the family
law systems to create a single unified structure applicable to all class of
persons. Indeed, although the 2014 Marriage Act is a step toward that
end, its enactment is a clear indicator that it is impossible to undo the
historical and cultural factors that underpin family law systems of this
country.

The Marriage Act of 2014 was aimed to create a structure envisaged

under article 45 and 46 of the Constitution with regard to the family law
systems it envisages. In this session, we explore the constitutional bases
for the multiplicity of family law systems; the fact that it is possible for
an individual to change his or her family law statute and the problems
encountered in the legal system in application of the diverse family laws
that exist in the country.

1.12. Constitutional Basis for Application of Different

Family Law Systems
The 2010 Constitution acknowledges that marriage, and thus family law
system is a matter of choice for the people bound by it based on belief
and practice adopted by people in any society. Article 32 provides that
every person has the right to freedom of conscience, religion, thought,
belief and opinion. The right accrue to manifest any religion or belief
through worship, practice, teaching or observance, including observance
of a day of worship manifest and practice the right either individually or
in community with others, in public or in private. A person cannot be

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compelled to act, or engage in any act, that is contrary to his/her belief
or religion.

Thus, regarding the family, the Constitution provides in article 45 that

the family is the natural and fundamental unit of society and the
necessary basis of social order, and shall enjoy the recognition and
protection of the State. Thereunder, marriage is a matter of choice. It is
provided that, “Every adult has the right to marry a person of the
opposite sex, based on the free consent of the parties,” and Parliament
is enjoined to enact legislation that recognises:

(a) Marriages concluded under any tradition, or system of religious,

personal or family law; and

(b) Any system of personal and family law under any tradition, or
adhered to by persons professing a particular religion, to the
extent that any such marriages or systems of law are consistent
with this Constitution.

This was essentially done in the Marriage Act No 4 of 2014 which

provides for recognition of diverse forms of marriages in the country.

An argument for the diversity of the systems of marriages was put

forward very strongly by Dr Gibson Kamau Kuria when he was teaching
family law at the University of Nairobi. Dr Kuria was of the view that the
Marriage Bill of 1976 which proposed a harmonised marriage system
was unconstitutional and could not be upheld. He gave two reasons why
the bill could not stand:

Firstly, the Bill assumed that, sociologically and politically, the Kenyan
people were one entity, which they were not. His historical, the different
systems of law had developed along racial lines, which divide still
pervades the Kenyan society insofar as the system of personal law is
concerned.

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Secondly, he argued that the Kenyan constitution guaranteed a right to
freedom of conscience and this includes freedom of religion and worship.
Part of that freedom and worship was foundational in the different family
laws. Hence, statutory law while the Christians had a choice to marry
under Christian law, Muslims could also choice to marry under the
Muslim law. Likewise, Africans were free to practice their customs under
their customs. Therefore, to legislate on all practices under one uniform
law would be unconstitutional.

We therefore have in existence diversified provisions catering for

different types of marriages in Kenya that it is impossible to do away
with despite major challenges that evolve from putting into effect
systems that differ quite a lot in many regards from.

1.13. Ways in Which Individuals can Change their

Family Law Statuses
With diversity of family law systems, it is possible for parties to change
their family law from one system to another. This may happen:

1.13.1. Through Marriage

Where one marries someone practicing another family law system
he/she will be deemed to have changed the applicable family law
system. For example, if a person practicing a customary law system
marries a person practicing Islamic law, normally the implication is that
that marriage will bestow upon the parties a new family law system and
normally the operating law system will be that of the man in our
patriarchal society.

In Ohochuku v. Ohochuku [1960] 1 All E.R. 253, the parties had been
married under Nigerian customary law and then underwent a Christian
Marriage. Under English law, this created a monogamous marriage.

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In the Marriage Act of 2014, section 8 and 9 recognises change of family
law system of marriage from one system to another but also imposes
some restrictions. It provides that:

(i) A marriage may be converted from being a potentially polygamous

marriage to a monogamous marriage if each spouse voluntarily
declares the intent to make such a conversion. However, a
polygamous marriage may not be converted to a monogamous
marriage unless at the time of the conversion the husband has
only one wife.

(ii) A married person shall not, while in a monogamous marriage,

contract another marriage; or in a polygamous or potentially
polygamous marriage, contract another marriage in any
monogamous form.

1.13.2. Through Change of Religious Belief

The religious belief or faith which then affects the parties’ legal status.

In Sinha Peearage Case [1946] 1 All E.R. 263 P.C, the parties changed
their Hindu sect from one practicing polygamous marriage to one
practicing monogamous marriage. It was held that changing their
religious beliefs changed their marital status and the polygamous
marriage was changed to a monogamous one.

Under the African Christian Marriages and Divorce Act it was one’s
religion that determined whether he/she had changed his/her family law
system. Under the Act, a second ceremony of marriage was designed to
change one status from polygamous to monogamous union.

However, in Kenya, as in many common law jurisdiction, one cannot

change ones family law system just by changing ones religion especially
if its effect is to convert him/her from a system established under the
Christian/civil marriage to other family law system.

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1.13.3. Through Operation of Legislation
Statutory provisions can also lead to a change of one’s family law status.
In A.G of Ceylon v Reid [1965] AC 720, it was held that local
Legislation was one recognized way which could change the character of
one’s family law system.

In Parkasho v. Singh [1967] 1 All ER, a statute converted Sikh

marriages from being polygamous to monogamous. It was held that
from these provisions, the family law of Sikhs had been changed.

In order to be considered to have changed the family law system of a

group, the legislation must deal with all marriages in that category.

Kenyan statutes do provide for the change from one system to the other.
Section 11(b) of the Marriage Act, now repealed, implied that one can
change their customary or Islamic law marriage into a Christian
marriage. In the application for a marriage certificate, there must be an
Affidavit stating that neither party is married under customary or Islamic
law to any other person they intend to marry.

Section 9 of the African Christian Marriage and Divorce Act provided for
parties who are married under customary law to marry under the Act if
they wish to do so.

The Islamic law under section 5(6) of the Mohammedan Marriage and
Divorce Registration Act also in some way does provide of conversion of
customary law marriages to Islamic marriages, though not directly. The
section makes it an offence for one to convert to Islamic marriage from
other marriages unless there is a divorce.

1.13.4. Change of Domicile

Domicile is essentially ones permanent home or the place that one
intends to set up their permanent residence. In Parkasho v. Singh
[1967] 1 All ER, the parties had contracted a polygamous marriage in
India but the marriage had remained a de facto monogamous marriage.
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They then changed their Domicile to England which changed their
marriage into a de jure monogamous marriage.

In the Ali bhai case, a family was allowed to change their family law
system from Hindu to Islam after settling at the Kenya Coast (see also
Manjany v Ndongo (1967) JAL 13).

Ali v. Ali provides authority for the proposition that, if a husband

changes his domicile from a country which permits polygamy to one
which does not, this change of domicile renders the marriage
monogamous.

1.14. Problems Occasioned by Multiplicity of Family

Law Systems
A number of problems which we shall not turn to look at have existed in
the application of family law in light of the multiplicity of the family law
systems in the country. Some of the problems have now been resolved
by the structures put into effect by the 2014 Marriage Act but other
challenges will still persist.

The major challenges have usually revolved around:

(i) The continued application of English Family Law;

(ii) The changes by individual of the family law system applicable

to them; and

(iii) The internal conflicts between different family law systems.

1.14.1. Continued Application of English Family Law

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

1.14.1.1. 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:

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 • 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.

At common law, the presumption does exist that if it can be shown that
there was an intention to transfer the beneficial interest over some
property by a person to another, then there is advancement. (Shallo v.
Maryam; Bishen Singh v. Mohinder Singh; Sarah Wanjiku Mutiso
v. Gideon Mutiso).

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.

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The issues that arose for consideration were (1) whether the deed of gift
was void; (2) whether there was an express trust in favour of the
husband; (3) whether, in the absence of an express trust, a resulting
trust could be applied. The court ruled in favour of Mutiso and the wife
appealed. It was held:

(i) While the husband did not clearly plead resulting trust, the
facts of the case and the plea of ‘trust’ effectively referred to a
resulting trust.

(ii) There was no express trust in this case because the transfer
was specific and expressly by way of gift.

(iii) Where property is transferred to another as a gift with the

intention that the latter hold it as trustee for the former, a
resulting trust may be implied.

(iv) 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.

There was sufficient rebuttal evidence that it was not the husband’s
intention to make an absolute gift to the wife. A constructive trust would
therefore be imposed to prevent the wife from taking fraudulent
advantage of her husband. The Appeal was dismissed.

• 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.

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This presumption has been applied to the Kenyan situation (Wanjiku
Yawe v. Public Trustee; Peter Hinga v. Mary Wanjiku; R. v Peter
s/o Mikhayo; and Charles Manjani v. Rosemary Moraa).

In Wanjiku Yawe the court found that this presumption can also be
found under African customary law.

In R v. Peter s/o Mikhayo the interesting issue was for how long
cohabitation should be for this presumption to come into place. The
accused had cohabited with a lady for a period of between 4 and 8
months. One day, he found the lady performing a sexual act in the bush
with a man. He killed the man citing in his defence on charge of murder
that the lady was his wife and he had thus been provoked to kill the
man. The court found that period enough for the presumption of
marriage holding that under customary law, the moment one starts
cohabiting, the presumption is triggered.

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.

1.14.1.2. 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.

22
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. The MWPA would apply in priority to customary law under
section 3 of the Judicature Act. The court also considered various English
authorities and made a finding on the presumption of advancement.

In Karanja v. Karanja, during the course of their marriage, the parties

acquired several properties which were all registered in the name of the
husband. One property was acquired from money supplied by the wife
while the other properties were acquired with her direct or indirect
contribution. The court considered whether customary law would
operate to disqualify any imputation of trust in favour of a married
woman, especially one in salaried employment. It was held that the
Married Women’s Property Act was applicable to Kenya, and customary
law was subject to any written law including statutes of general
application in England. The court therefore had the power under the
MWPA to grant declarations of ownership of property. The absence of an
agreement or intention that the contributing spouse share beneficially in

23
the property did not exclude the imputation of such an intention. In this
case, the husband held the immovable properties in dispute in trust for
himself and his wife in proportions of two to one respectively. The final
decision of the court was to award one-third beneficial interest in the
properties to the wife.

1.14.1.3. 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.

1.14.2. Problem of Changing One’s Family Law from One

24
 System to Another
Beside the problem occasioned by the continued application of English
laws, the other problem occasioned by multiplicity of family laws, arises
from changing of one’s family law system, which as we have noted is
possible.

Whether one can change from one system of family law to another (e.g.
from statutory law to customary law) is theoretically possible because
under article 32 of the Constitution, the freedom of conscience, religion,
belief and opinion is protected and guaranteed. Flowing from these
constitutional guarantees, individuals can change their religions as of
right. It follows that the moment one change religion, the family law
applicable will automatically change as this is determined by ones
religious beliefs.

However, there are practical problems that arise from one attempting to
change their family law system. This has revolved around:

1.14.2.1. 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

25
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

26
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

27
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.

Notable in most commonwealth countries, the pre-eminence of

civil/Christian marriages over the other systems is still noted. In
Onwundinjo v. Onwundinjo [1962] J.A.L 49-52, a Nigerian case, the
other wife could not inherit because the husband had contracted an
earlier statutory law marriage. In Mokhotu v. Manyaapelo, a Lesotho
case, a second customary law marriage between the parties was
declared null and void because at the time of contracting the husband

28
had not validly divorced the first wife who he had married under
statutory law.

Notable however, in the Gambia in Manjany v Ndongo, the courts

recognized that one could change from statutory to Islamic law marriage
by contracting an Islamic marriage ceremony after the statutory
marriage ceremony. Similarly, in Rattansey v. Rattansey (1960) E.A,
a Tanzanian case, the Tanzanian courts held that talak terminated the
statutory law marriage earlier contracted. (Also in Bakari v. Kichunda
(1973) LRT - Tanzania).

Thus, the Gambia and Tanzanian rulings can be distinguished from other
commonwealth countries in the sense that they have made an attempt
to recognize their own family laws and Islamic Law and Statutory Law in
Gambia are equal.

1.14.3. Internal Conflicts between Different Family Law

Systems
The third problem with regard to the multiplicity of the family law
system is the conflicts that exist in the operation of different family law
system. The conflicts that arise are in 4 main respects:

1.14.3.1. Internal Conflict in the Constitution Regarding Family

Law
There is a visible internal conflict in the constitution with regard to the
operation of Islamic law. Article 24(4) provides qualification of the
enjoyment of rights (especially to equality) to the extent strictly
necessary for the application of Muslim law before the Kadhis’ courts, to
persons who profess the Muslim religion, in matters relating to personal
status, marriage, divorce and inheritance. On the other hand, article 53
on special application of rights to Children, every child is entitled to
parental care and protection, which includes equal responsibility of the
mother and father to provide for the child, whether they are married to

29
each other or not. Thus these two sections may conflict when you look
at the issue of illegitimacy of children under Islamic law.

1.14.3.2. Conflict 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.

1.14.3.3. 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.

1.14.3.4. 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.

30
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.

1.15. Conclusions
The overhaul of the law by the Marriage Act of 2014 has attempted to
resolve some of the conflicts especially with regard to the overarching
influence of Christian/civil marriage surpassing the other systems of
marriage. However, some of the conflicts will still persist.

31
4. Agreement to Marry
1.16. Introduction
Before there can be a marriage there must be the agreement to marry,
and the first take in any marriage relationship includes an agreement to
marry. It is notable however that not every agreement to marry will
result in a marriage. It follows that when an engagement is broken, then
a party may want to seek legal redress against injuries occasioned by
the break-up if they had already altered their position in light of the
agreement. The legal position will usually depend on the family law
system applicable to the parties.

1.17. Agreement to Mary in Civil and Christian

Systems
Traditional/classical common law positions may be deemed to apply the
civil and Christian systems.

At common law, an agreement to marry was said to exist when parties

decided to get married and acted in a manner that showed their
intention to marry. The agreements amounted to contracts that were
legally enforceable; provided it could be shown that the parties involved
intended to enter into a legal relationship. A party who withdrew from
such an agreement without any legal justification could be sued for
breach of contract and the injured party could claim damages.

Against this backdrop, all the usual contractual requirements were

applicable i.e., the requirements as to capacity to enter into that
contract, consent, intention to create legal relations etc. All these had to
be met before one could allege that there had been a breach of that
contract.

32
In Shaw v. Shaw (1954) 2 Q 3, the Plaintiff had cohabited with a man
she regarded as a husband for 14 years and they lived together as
husband and wife and at one point even celebrated their marriage. Upon
his death, the plaintiff discovered that for 10 years of their marriage, the
man had been married to another woman, who had died 2 years before
him. It had therefore been that only in those two years had he had
capacity to marry the plaintiff as he was only single for 2 years of their
cohabitation. She sued in the States for breach of warranty that he was
single and had capacity to marry, and he had therefore breached his
promise to marry her. The court awarded her damages for breach of that
warranty.

Other than general damages, when there is a breach of agreement to

marry under common law, normally gifts given in contemplation of that
marriage will also be required to be returned by the guilty party. Thus, in
Cohen v. Seller (1926) 1 K.B. 536, a diamond engagement ring had
been given to the lady. It was held that it was the man who had been
guilty of the breach, and could therefore not demand the return of the
engagement ring. The woman was also awarded general damages.

In Larok v. Obwoga a Ugandan Case, the lady Respondent and the

Appellant were friends. In 1968 when the lady was a pupil at college, she
became pregnant and as a result was expelled from the college. The
man then wrote to her promising to marry her by the end of April of that
year. In October he wrote again but this time to tell the lady that he was
no longer keen to marry her. The lady sued for breach of promise to
marry. The lower court held that the man had committed a breach of the
promise and awarded the lady Sh. 2000 as damages. The court based its
computation on two grounds that the chances of getting married had
been impaired and secondly the injury posed to her feelings. The man
appealed but his appeal was dismissed and the sum of 2000 shillings
was to be paid.

33
In England this action of breach of promise to marry is no longer
recognized. It was abolished in 1970 by the Law Reform (Miscellaneous
Provisions) Act UK (1970), but in Kenya it was not and still applies via the
Judicature Act (Muinde v. Muinde).

Furthermore, section 170 of the Penal Code states that any person who
wilfully and by fraud causes any woman who is not lawfully married to
him to believe that she is lawfully married to him and to cohabit and
have sexual intercourse in that belief is guilty of a felony and is liable to
imprisonment for 10 years.

1.18. Agreement to Marry Under Hindu Law

Under the Hindu custom, agreements to marry are usually made
between the parents of respective spouses and a betrothal in respect of
a boy and a girl can even be done when they are still infants. In this
regard therefore, there is no contract between the parties that is
enforceable.

In Dhanji v. Ruda, the betrothal agreement was made when the parties
were still children and the parents exchanged ornaments, clothing and
other gifts. When the girl became of age, she indicated that she had no
intention of getting married to the boy and the engagement was
eventually broken. The parents of the boy instituted proceedings for
damages for the breach of contract. The court held that no damages
were recoverable because a contract where a person is forced against
her will is contrary to public policy and morality and the parents could
only recover their gifts and ornaments.

1.19. Agreement to Marry under Islamic Law

Under Islamic law agreements to marry may also be entered into
between the parents of the intended spouses. Until the contract to
marry and the actual marriage take place, no contractual obligations
arise as between the intended spouses. Therefore no suit for breach of

34
agreement to marry can be instituted. However, where gifts or
ornaments have been exchanged between the two families, then these
can be returned if the agreement to marry is broken.

In Fazaldin v. Din Mohammed, the girl’s father entered into a

betrothal agreement without her consent and she later refused to marry
the prospective suitor. The prospective suitor brought an action where
he claimed damages for breach of agreement to marry and in the
alternative, an injunction to restrain her from marrying any other man
until he had recovered all his damages and the gifts he had given. The
court held that he could only recover the presents and the ornaments he
had given but could not recover any damages.

1.20. Agreement to Marry Under Customary Law

Under customary law agreement to marry normally take the form of
betrothals. The nature of the betrothals differs from community to
community. For some communities, there is an elaborate formal
ceremony while for others it is a family affair with only a few witnesses.

Nonetheless, the agreement to a marriage under African customary law

generally takes place between the families of the parties and not the
parties themselves.

The effects of a betrothal under customary law is that on part of the

woman she loses her sexual freedom and cannot have any sexual or any
relationship with any other man, while on the part of the man, he is
under an obligation to pay the bride price. On the other hand, the girl’s
family is bound to give away their daughter and is under an obligation to
keep her chastity, while the family of the boy is under an obligation to
pay the bride price.

In the event of a breach occurring under African customary law, it has

been held that an action of breach of promise to marry will not lie
(Muinde v. Muinde). There are however other remedies provided for

35
under the Magistrates Court Act which includes actions for damages for
seduction, and also actions for pregnancy compensation.

In Muinde v. Muinde, it was stated that if the Agreement to marry is

made under statutory law, the action will lie because the action is part of
the deceased family’s law but it will not lie in customary law because the
remedies provided for in customary law are listed and they had been
awarded in the past (see also Beda Maina v. Matheno; W. Ndegwa v.
Edward Wandurwa).

1.21. Promise to Marry under the Marriage Act 2014

Section 76 makes provisions regarding to all forms of marriages
recognised under the Act. It provides that, “Except as provided in this
section a promise by a person to marry another person is not binding.”

36
5. Civil and Christian Marriages
1.22. Introduction
Previously, these forms of marriages were celebrated under the Marriage
Act and the African Christian Marriage and Divorce Act which reflected
the inherited English law provisions. Marriages under these systems
were strictly monogamous as was expressed in the English case of
Hyde v. Hyde (1886) L.R. 130. According to the Lordship, Marriage was
a voluntary union for life of one man and one woman to the exclusion of
all others.

In Kenya, in the case of K v. K (1970), the petitioner went through a

form or ceremony of marriage with the respondent at the District
Commissioner’s office in Nairobi. At the time, the respondent was
married to one Grace Waiyaki Kang’ara in accordance with Kikuyu
customary law. That marriage had not been dissolved when he
purported to take another woman as his wife. The court held that under
the Matrimonial Causes Act (now repealed), the marriage was a union of
one man and one woman to the exclusion of all others. As such, a
customary law marriage contracted while a statutory one existed was
null and void. The respondent had thus committed adultery with the co-
respondent and a decree nisi was therefore granted.

This position still obtains under the Marriage Act 2014 s 6(2).
Furthermore, section 171 of Penal Code provides that, ‘Any person who,
having a husband or wife living, goes through a ceremony of marriage
which is void by reason of its taking place during the life of the husband
or wife, is guilty of a felony (bigamy) and is liable to imprisonment for
five years’.

1.23. Conditions Relating to Capacity

37
1.23.1. Parties must be of Opposite Gender
The first condition is that the parties must be biologically man and
woman. This common law requirement finds expression in our
constitution in article 45 which states that, ‘Every adult has the right to
marry a person of the opposite sex, based on the free consent of the
parties’.

The common law position was expressed in the case of Corbett v.

Corbett (1970) 2 All E.R. 33. Here, the parties went through a ceremony
of marriage with the petitioner knowing that the respondent had been
registered at birth as being of the male sex, but had undergone a sex
change operation, and had lived as a woman. After 14 days of marriage
the petitioner filed a petition for a declaration that that marriage was
null and void on the ground that the respondent was male, or
alternatively, that a decree of nullity be issued on the ground of non-
consummation. It was held, among other things, that marriage is
essentially a relationship between a man and a woman. Thus, the
respondent having been a biological male from birth, it rendered the so
called marriage void. The court also found that the Respondent was
incapable of consummating the marriage making it a nullity.

There is however a lot of controversy on the issue of definition of

marriage as between man and woman. Some countries recognise gay
marriages. In England, for example, the recognition of civil unions under
the Civil Partnership Act 2004 was challenged as not equivalent to a
marriage and thus discriminatory. In Wilkinson v. Kitzinger and
Others, Celia Kitzinger and Sue Wilkinson, both British university
professors, married in Canada. On their return to England, their marriage
was not recognised but under the subsequent Civil Partnership Act, it
was converted into a civil partnership. The couple sued for recognition of
their marriage, arguing that it was legal in the country in which it was
executed and met the requirements for recognition of overseas

38
marriages and should thus be treated in the same way as one between
opposite-sex couples. The High Court did not agree. Sir Mark Potter gave
as his reason that, “abiding single sex relationships are in no way
inferior, nor does English Law suggest that they are by according them
recognition under the name of civil partnership”, and that marriage was
an “age-old institution” which, he suggested, was by “longstanding
definition and acceptance” a relationship between a man and a woman.
He agreed that they were being discriminated against by the Civil
Partnership Act 2004, but considered that “To the extent that by reason
of that distinction it discriminates against same-sex partners, such
discrimination has a legitimate aim, is reasonable and proportionate,
and falls within the margin of appreciation accorded to Convention
States.”

Currently in England, same sex unions are now considered as marriages

under the Marriage (Same Sex Couples) Act 2013.

In Kenya the position still remains that marriage can only be between a
man and a woman. This does not, however, nullify customary practices
where woman-to-woman marriages were possible within some
communities. In Monica Jesang Katam v Jackson Chepkwony &
Another [2011], for instance, the High Court affirmed the right of
Inheritance in a woman-to-woman marriage under Article 11 (1) of the
Constitution which recognises culture as the foundation of the nation
and as the cumulative civilization of the Kenyan people and the nation.

1.23.2. Parties must be Single

Parties to a marriage have to be single. This means that must either be
single, divorced or widowed (LK v. CK; K V K) as bigamy is outlawed.

1.23.3. Parties must be of Age

Parties must be of Age to contract a marriage. In Pugh v. Pugh (1951),
a man of age over 16 years married a girl aged 15 years. It was held

39
that that marriage was void. In his ruling, the judge said the reason for
this was that it is considered socially and morally wrong that a person of
an age at which we believe them to be immature should have the
stresses, responsibilities and sexual freedom of marriage and the
physical strain of childbirth.

At common law as well as under the repealed Marriage Act, the parties
could marry at 16 years of age. And a marriage bellow that age was
invalid. The constitution however now provides that the age of majority
is 18 and allows only marriage of adults (art 45). In accordance with the
constitution, the Marriage Act 2014 provides for a minimum age of 18
for both parties (s 4).

1.23.4. Parties must not be within Prohibited Decrees of

Relationships
Marriages conducted between related persons are regarded as
incestuous and are prohibited for health reasons in order to avoid in-
breeding. Genetically, inbreeding gives one imperfect stock with a
higher risk of congenital disabilities.

Prohibited degree arises from relationship by way of consanguinity or

affinity. Consanguinity is where there is blood relationship e.g. brother,
sister, mother, father etc. Affinity on the other hand is relationship by
way of marriage, e.g. mother-in-law, father-in-law, sister-in-law etc.

Prior to the new marriage law, section 35 of the Marriage Act referred to
English law found in the first schedule of the UK Marriage Act of 1945
relating to the prohibited decrees. The English law did not prohibit
marriage between cousins. Currently, this is found in section 10 of the
Marriage Act of 2014 under which a person cannot marry his/her:

(a) Grandparent, parent, child, grandchild, sister, brother, cousin,

great aunt, great uncle, aunt, uncle, niece, nephew, great niece
or great nephew;

40
 (b) The grandparent, parent, child or grandchild of that person's
spouse or former spouse;

(c) The grandparent, parent, child or grandchild of that person's

former spouse;

(d) Adopted child/parent.

A relationship of the half-blood is also a bar to marriage.

1.24. Requirements as to Formalities

1.24.1. Notice
Parties who seek to get married under the civil and Christian systems
must give notice of their intention to get married. Under sections 25 and
26, the Registrar must be notified of the intended marriage which he
shall publish in the prescribed manner in the place where the marriage
is to be celebrated. The registrar enters the notice in a marriage notice
book that he or she maintains.

This requirement mainly arises from the fact that in evolution of

marriage under common law, it was demanded that a marriage be a
public act and should not be celebrated in private but in a public place.

1.24.2. Consent
Section 3 of the Marriage Act provides that a marriage is the voluntary
union of a man and a woman. The Act further provides that the consent
of either party has not been freely given and both parties must be
present during the ceremony (s 11) otherwise the marriage is void.

The section states that consent is not freely given where the party who
purports to give it:

(a) Is influenced by coercion of fraud;

(b)Is mistaken as to the nature or purport of the, ceremony; or

41
 (c) Is suffering from any mental condition whether permanent or
temporary, or is intoxicated, or is under the influence of drugs, so
as -not to appreciate the nature or purport of the ceremony.

Furthermore, the marriage is void if either party is mistaken about the

identity of the other party when they get married.

Under the repealed system it was required that if a party was below the
age of 21, he/she must get the consent in writing from parents or
guardian (Re Bennet (1974); H v H (1954)). In Re Bennet, where a 16
year old girl sought an order to dispense with her parental consent to
her intended marriage, the court refused to grant such orders insisting
that consent must be given for the marriage to proceed. This
requirement has not been replicated in the new law since a marriage
can only be between adults.

1.24.3. Celebration of the Marriage

The Marriage must be celebrated in a public place by a licensed person
either a marriage officer or a church minister. In Christian marriages, a
minister of religion must be licenced under s 52 of the Marriage Act,
while civil marriages are carried out by Registrar of Marriages (s 51 of
the Marriage Act) or licenced registrars in foreign countries (s52).

The marriage should take place in the presence of at least two

competent witnesses (Section 5 of the Marriage Act).

Under the Marriage (General) Rules r 6, all marriages must be celebrated

between 8 O'clock in the morning and 6 o'clock in the afternoon.

A person is not competent to act as a witness if that 'person is: below

the age of eighteen years; otherwise not competent to enter into a
contract because of mental disability rendering that person incapable of
understanding what the parties are doing or intoxication; unable to
understand, whether through an interpreter or otherwise, the language

42
in which the ceremony is held. Moreover, the person who celebrates a
marriage cannot be considered to be a witness to the marriage.

Under section 19 and 27, a person who knows of an impediment to an

intended marriage may give a written notice of objection to the person
in charge of the place of marriage. A notice of objection must include the
name of the person giving the notice of objection and the person's
relationship with either of the intended parties and the reason for the
objection to the intended marriage. The person who gives the notice of
objection may, at any time, withdraw the objection in writing.

Under section 20 and 28, upon receiving a notice of objection, the

person in charge of a place where the marriage is to be celebrated must
hear the objection forthwith and if he/she considers that the objection
requires a further hearing, he or she shall postpone the marriage
ceremony until such time as the objection will be determined. An
objection must be determined within a reasonable period which shall not
be more than seven days after hearing the objection.

Upon determination of an objection, the person in charge of the place of

marriage must prepare and submit a report of the process of
determination of the objection in the prescribed form to the parties and
the Registrar within seven days of determination.

Any party who is dissatisfied with the decision may appeal to the court
within fourteen days of the decision.

1.24.4. Registration
After compliance with all the requirements the parties then register their
marriage and they are issued with a marriage certificate. They are
required to sign the marriage certificate in duplicate and their signatures
must be witnessed by two witnesses.

1.25. Matrimonial Rights and Duties in Christian and

Civil Marriages
43
These are duties that arise once parties are married:

1.25.1. The Right to Consortium

A consortium is the right to the company, society and affection of a
spouse in any matrimonial relationship. Under the old common law
rules, it was the husband who had a right to the wife’s consortium but
the wife had no such right to her husband’s consortium. What she had
was a duty to offer her companionship and services to the husband.
Under these old common law rules, the husband also had the right to
chastise his wife if she failed in her duties including confining her within
the house.

Case law established that the current position is that though spouses
have the right to the others consortium, they cannot use extra judicial
means to enforce them. In Republic v. Jackson, the wife had gone to
live with relations whilst her husband was absent in New Zealand. After
his return she refused to live with him again. Consequently he arranged
with two men that they should seize her as she came out of church one
Sunday afternoon. She was then put into a carriage and taken to her
husband’s residence, where she was allowed complete freedom of the
house but was not permitted to leave the building. She then applied for
a writ of habeas corpus. It was unanimously held by the Court of Appeal
that it was no defence that the husband was merely confining her in
order to enforce his right to her consortium.

In Republic v Reid, the husband locked the wife in the house and
refused anyone to see her because she was difficult to live with. This
was found to be illegal confinement.

In Nanda v. Nanda (1968), the husband deserted the wife and went to
live with another woman. The woman installed herself in the flat where
they were living and refused to move. The husband applied for an
injunction to restrain the wife from moving to the flat where he was

44
living with another woman. In granting the injunction the court stated
that a wife or a husband cannot force a husband/wife to live with a
spouse who has rejected them.

In other words while the law recognises there is consortium, they cannot
enforce it and neither can one use extra judicial means to employ it. In
R v. Kadhi Ex Parte Nasrren (1973) E.A. 153, it was stated that
whatever system of family law is applied, enforcement of rights must be
constitutional.

The repealed Matrimonial Causes Act provided for restitution of conjugal

rights but if the other party was not willing, no court could enforce it.
This is now omitted under the current law.

Where consortium is lost, a husband cannot insist on conjugal rights.

One cannot force an order for restitution of conjugal rights if the other
party is not willing. One has an option to go to court for divorce.

There are a number of other various rights that accrue from consortium.

 Right of the wife to use her husband’s name;

 The right to acquire citizenship after the passage of requisite

period (7 years of marriage. Under the repealed laws, the husband
did not acquire the wife’s citizenship).

 Both spouses have a duty to cohabit together in their matrimonial

home, however the decision as to where that matrimonial home
will be cannot be specifically made by a specific spouse and it has
to be a joint decision. In Dunn v. Dunn (1949) 98, the husband
petitioned for divorce on the ground of desertion alleging that
when he had returned from working overseas (he was a sailor) he
had requested his wife to go and live with him at a sea port where
he was stationed and that she had refused and persisted in her
refusal for his request. His argument was that the husband has the

45
 right to decide where the spouses should live and that by refusing
to join him she was therefore guilty of desertion. It was held that it
is not a proposition of law that a husband has the right to say
where the matrimonial home should be. It is simply a matter of
ordinary good sense arising from the fact that the husband is
usually the wage earner and has to live near his place of work. It is
the duty of the spouses to decide by agreement as to what their
matrimonial home should be. Therefore the wife was not guilty of
desertion in this particular case. The court was saying that it is not
the law that the husband should decide where they are going to
live.

 The spouses have the right to sexual intercourse with one another
and this commences with consummation of marriage and
continues even after the marriage has been consummated.
Consummation is the act of sexual intercourse after the
celebration of the marriage. However the right to sexual
intercourse continues even after consummation. However this
does not mean that a spouse should submit to unreasonable
demands of sexual intercourse. In AB v. CD 28 K.L.R, 210, the
court held that the wife had the right to refuse to submit to
unreasonable demands for sexual intercourse. In fact, that
amounted to cruelty and can be a ground for divorce.

On the issue of marital rape, it has been held that a man cannot be
guilty of raping his wife unless they are separated or divorced. This is
judicial separation. If a man insists on sexual intercourse when they are
judicially separated, he will be guilty of rape as was the case in R v.
Clarke (also R v. Miller).

Is the use of contraceptives against the wishes of the other spouse a

contravention of marriage? It has been held that it does not affect the
right to sexual intercourse but it can however give rise to divorce if it is
46
shown to have injured the other party whether emotionally or physically
it can be cruelty.

1.25.2. Right to Matrimonial Confidence with the Spouses

This is the basis for privilege position of spouses in the law of marriage.
The law will protect any matrimonial confidence that is entered into
during the subsistence of marriage. Even in the event of a marriage
break down the law will seek to protect a spouse from disclosure of such
confidences (Argyll v. Argyll).

1.25.3. Right of Maintenance

Under common law, the obligation to support a spouse applied to both
spouses. Therefore a man was under an obligation to support his wife
and vice versa. However this was modified by statutes whereby now
under statue the wife is the one who has the right to maintenance by
her husband where she is financially dependent of him and that scope of
maintenance is in accordance with the husband’s financial standing and
his standard of living. The husband is also under a duty to maintain his
children during a marriage and even after a marriage. Note that the
right to maintenance accrues during marriage and even after the
marriage has ended.

When claiming for maintenance the wife has to indicate her needs and
her children’s needs her own income as well as her husband’s income.
There is no hard and fast rule as to the amount of maintenance that a
court may order, however there are certain guidelines which apply.

In the case of Alimony Pendente lite (that is alimony or maintenance

paid to a wife pending determination of a divorce case), alimony may
not exceed one fifth of the husband’s average net income for the
preceding 3 years. That is only in relation to cases of alimony pending
suit.

47
 In other cases of maintenance the courts follow the common law
practice of awarding an amount that will make the wife’s income one
third of the aggregate income of both husband and wife. This is just a
guide offered and courts will depart from it where the facts of a
particular case warrant it.

A court can vary a maintenance order where circumstances arise

warranting that variation (N v N (1973) KHD 40).

In common law the right to maintenance stoped as soon as cohabitation

ceases but under statutory law the right continues even after
cohabitation. Under customary law the right to maintenance cease once
cohabitation ceases.

1.25.4. Other Rights

(i) Right to name;

(ii) The right to citizenship – Under the current law, a spouse is

automatically entitled to citizenship on application after having been
married for 7 years to a citizen.

(iii) Right to cohabit; and

(iv) Right to sexual intercourse.

48
6. Other Systems of Law Insofar as
Marriage is Concerned
a. Marriage under Customary Law
i. Types of Customary Marriages
(b) There are different forms of marriages that exist under
Customary Law. They include:

1. Monogamous Marriage
(c) This is a marriage between one man and one woman.

1. Polygamous Marriage
(d) This is whereby a man can celebrate marriage with many
women at different times.

1. Leviratic Marriages
(e) These arise where the husband predeceases the wife and a
relative or brother of the deceased husband assumes the role
of the deceased. Any children born out of this union are
regarded as children of the deceased. This is common among
the Meru, Kamba Kikuyu Kuria Kisii and Nandi tribes.

1. Sororate Unions Marriages

(f) This occurs where the wife dies before the husband. Her family
may offer her younger sister as replacement and the younger
sister assumes the role of the deceased wife. This may also
arise where the family is unable to return the bride price and
offer their daughter as a substitute. Sorarate unions also take
place where a wife is not able to have children and she may
invite her sister to come and get married by the husband for
the purpose of getting children this is common among the Luo.

1. Widow Inheritance

49
(g) This is where the husband predeceases the wife and the wife is
inherited by one of the husband’s brothers and for all purposes
becomes his wife. It is different from the Leviratic in the sense
that any children born out of that union are regarded as
children of the brother and not children of the deceased. It
happens within the Luo, Luhya Kalenjin tribes and the Masai
communities etc.

1. Woman to Woman marriages

(h) These arise where a woman is barren and she then marries
another woman for the sole purpose of having children and
those children become the children of the barren woman who is
the husband in the relation. This marriage can take place
whether the husband of the barren woman is alive or dead. If
the husband is alive the other woman is allowed to have sexual
relations with the husband for the purpose of having children.
Any children out of this relationship will be regarded as the
children of the barren woman. Where the husband is dead she
must select a man from the husband’s family or leave the
decision to the woman to select whom she wants to have
children with. This is common among the Kisii, Taita and Kuria,
Kalenjin tribes.

(i) In Monica Jesang Katam v Jackson Chepkwony & Another

[2011], the High Court affirmed the right of Inheritance in
woman to woman marriage. Monica Jesang had claimed the
right of inheritance by affirming that she was a beneficiary of
the estate of Cherotich Kimong’ony Kibserea (deceased) by
virtue of having been married to the deceased in a woman to
woman marriage under the Nandi tradition. The High Court at
Mombasa in deciding the case upheld customary law by
observing that contemporary social systems for instance, in the

50
 shape of current practices in the domain of family among the
Nandi were to be regarded as aspects of culture which would
rightly claim protection under Article 11 (1) of the Constitution
of Kenya 2010. The Constitution under the Article recognized
culture as the foundation of the nation and as the cumulative
civilization of the Kenyan people and the nation.

(j) This has been reiterated by the Court of Appeal in Eliud Maina
Mwangi v Margaret Wanjiru Gachangi,1 where it was held that
the existence of a valid kikuyu woman-to-woman marriage is
dependent on proof that the requisite ceremonies took place.

1. Forcible Marriages
(k) Forced marriage is a marriage in which one or both of the
parties is married without his or her consent or against his or
her will. A forced marriage differs from an arranged marriage, in
which both parties consent to the assistance of their parents or
a third party (such as a matchmaker) in identifying a spouse.

1. Customary Single Parent Family

(l) These arise in a family where there are only daughters and the
last daughter is not entitled to get married. She remains at
home to beget children especially male children with a man of
her choice and these children belong to her father’s family.
Nandis and Kipsigis practice this.

1. Child Marriages
(m) This is where children are betrothed to each other when they
are still young and dowry is paid when they are still young and
on reaching the age of maturity the bride is then taken to her

Court of Appeal, Nairobi, Civil Appeal No 281A of 2003 [2013] eKLR.

51
 husband’s home. This was normally done where prominent
families wanted to see their friendship or during times of
famine. It was common among the Kisii, Kuria, the Kalenjin
tribes the Pokot and the Teso.

i. Repugnancy of Some Practices

(n) Can some of these forms be practised in the light of the
Judicature Act which is to the effect that customary law will
apply insofar as it is not repugnant to justice and morality like
child marriages? Widow inheritance, forced marriages as well as
the Leveratic unions can for example, be contested.

(o) Leviratic marriage arose during the colonial times. In Ocharo

d/o Oigo v. Ombego Mogoi there was a customary marriage.
The Applicant’s husband with whom she had one child died in
1953 and upon his death the Applicant was inherited against
her will by the respondent who was a brother of her deceased
husband. The union was an unhappy one and the applicant
then sought a divorce. The Applicant’s father consented to the
divorce and also to her marriage with another man whom she
claimed was the father of her second child. The father was also
willing to repay the bride price he had received from the
deceased husband to the Respondent. It was held that it was
repugnant to natural justice to refuse a divorce to a woman
who had been inherited against her will. Custody of the child of
her first marriage was given to the Respondent but with regard
to the second child the custody was given to the Applicant.

i. Conditions That Apply When Contracting a

Customary Law Marriage
1. Capacity
• Age

52
(p) Until the enactment of the 2014 Act, insofar as the age of the
parties was concerned, the parties needed not be of a specific
age. What mattered was not the age but whether the parties
had gone through an initiation ceremony. These initiation
ceremonies differed with communities. For instance in some
communities, the initiation ceremony was circumcision. The
age depended upon the age at which the initiation ceremony
took place. This ranged from 10 to 18 years. Under the current
Act, marriage can only be possible for parties who have
attained at least 18 years.

• Marital Status of Parties

(q) For a man, he may be single or married since customary law
allows for polygamy. However women are required to be single
in most African communities. This means she ought to be
unmarried. In many customs, if one had been married, whether
she is widowed or divorced, she would still be considered as
married. For the woman, marriage was considered to be for life.
So that once she was married, she was considered forever
married.

(r) This cannot be enforced under the current Act and a widow or
divorcee is deemed to be single.

• Consent
(s) Under customary law, consent was required both from the
spouses and their families. One was married into a family, so
that the families’ consent was essential in marriage.

(t) Most important however, parties must also consent to the

marriage. Mwagiru v. Mumbi, the Plaintiff sought a
declaration that there was a valid subsisting marriage between
himself and the defendant under Kikuyu Customary Law. The

53
 Defendant alleged that no such marriage existed because she
had not given her consent and had not even been present at
the essential ceremony. She admitted that she had lived with
the Plaintiff for a short time but claimed that she had been
forced into doing so by her father. And she also claimed that
she had gone through a civil marriage ceremony with another
man after she escaped from the Plaintiff and that she was in
fact married to this man and not to the Plaintiff. It was held by
the Court that the signifying of consent by the bride is
necessary at two ceremonies, which are vital in Kikuyu
customary Marriages, and on the evidence, the Defendant was
not present and consenting at any of these ceremonies and the
Plaintiff had therefore failed to prove his case. (Also in Omondi
v. Chum Nyafula).

• Prohibited Degrees
(u) This relates to degree of consanguinity and affinity.
Traditionally, it differed from community to community. Some
communities allowed marriage between blood relatives while
others did not. For example, among the Luhya and Luo, a man
could marry his wife’s sister even when the wife is still alive; a
Teso could take over his father’s wife in a polygamous
household which was a taboo in other communities.

(v) Under the current system, one can only marry outside the
prohibited degrees established in the Marriage Act for all types
of marriages.

1. Formalities in a Customary Law Marriage

(w) Customary marriage under the Marriage Act (s 43) is celebrated
in accordance with the customs of the communities of one or
both of the parties to the intended marriage. The common
features of most customs include:

54
• The parties have to undergo a betrothal ceremony
(x) The nature of the ceremony depends on the customs of the
parties, for some communities it is a single event for others it is
done in stages. For some it is a simple ceremony for others it is
a very elaborate affair. Essentially during the betrothal, the
intention to get married is expressed and an agreement to that
marriage is secured. During the betrothal there may also be
exchange of gifts but this is distinguished from dowry. It is just
an exchange of gifts.

• Payment of Dowry after the Betrothal

(y) For most customary laws, to be valid dowry must be paid. The
amount differs among the communities. For some it is a
standard rate for others it is the prevailing commercial rate. For
example among the Taveta they have a fixed dowry of one cow,
three female goats, two bulls and a home for the bride’s father.
The Kisii it depends on how educated the woman is and this
determines the rate you pay. It is also dependant on the
families involved where you find that if you marry from
prominent families the likelihood of paying a higher bride-price
exists.

(z) Amulan Ogwang v. Edward Ojok dealt with bride price. The
ruling was that under customary law, there was no marriage
until full bride price was paid. In this case, the father was
entitled to pregnancy compensation because the man had
made his daughter pregnant while he had not paid the full bride
price.

(aa) The institution of bride price has been criticised and cases are
also recognised that it may be subject to abuse. However
initially, bride price was paid as a token of mutual appreciation
for the bride. It was a way of thanking the parents of the girl for

55
 not only bringing up the girl but also for allowing the boy’s
family to take her away. It was also compensation in the sense
that the progeny would go to the boy’s family with the
daughter. Children were closely tied with the bride price and
the return of bride price was determined by who will have
custody of the children.

(ab) In Momanyi Nyaberi v. Onwonga Nyaboga, the Applicant

applied for a declaration that he was entitled to a woman and
the children which he had with her. The woman had been
married under Kisii Customary law to the Respondent but could
not get any children with him. And under Kisii Customary Law
any children which are gotten by a woman with a man other
than her husband belong to the husband and the husband
refused to divorce the wife insisting that she must stay with
him and that the children are his. It was held that the practice
whereby a husband refuses to divorce his wife on the grounds
that bride price had not been repaid to him so as to claim the
children was an abuse of customary law and repugnant to
natural justice.

(ac) In Onchoke v. Kerebi, the husband was very forthright saying

that he was claiming the children his wife had had with another
man for the bride price expected from their marriage. In fact,
he was only interested in the children and not the wife. This
was held to be repugnant to natural justice.

(ad) It is notable that now, the Marriage Act provides that where the
payment of dowry is required to prove a marriage under
customary law, the payment of a token amount of dowry shall
be sufficient to prove a customary marriage (s 43).

• Celebration of the Marriage

56
 (ae) The final formality after payment of dowry is the celebration of
the marriage itself and under Customary Law this can be in 3
ways:

(i) The marriage can be celebrated through a formal ceremony

according to the recognised practices and customs of the
community;

(ii) Through cohabitation so that once the parties start cohabiting

the marriage is deemed to have been celebrated;

(iii) By way of elopement or capture.

• Registration of Customary Marriages

(af) Under section 44 of the Marriage Act, the parties to a
customary marriage must notify the Registrar of such marriage within
three months of completion of the relevant ceremonies or steps
required to confer the status of marriage to the parties in the
community concerned.

(ag) The notification under shall specify the customary law applied
in the marriage of such parties; and has to contain a written
declaration by the parties, that the necessary customary requirements
to prove the - marriage have been undertaken.

(ah) The declaration must be signed by the parties in the presence

of two adult witnesses and each witness shall have played a key
cultural role in the celebrating the marriage. The signing may be by
other ways than with a signature. E.g. by thumb impression.

i. Matrimonial Rights and Duties under

Customary Law
(ai) Normally both parties have the right to consortium however the
rights that arise from this consortium will vary between the
husband and the wife. On the part of the man, he has a duty to
provide shelter for his wife and children. The man must have a

57
 house. Secondly the man is also the guardian of his wife and
children. He is the one to sue or be sued on their behalf and is
the one who will represent them in any formal ceremonies.
Hence, in customary law the wife and children are to be seen
and not to be heard.

(aj) Traditionally, the husband had the sole right to sexual

intercourse with his wife and could claim compensation from a
man who committed adultery with his wife. The person who
paid the compensation differed from community to community;
it could be the adulterer or the father of the woman who
commits the adultery.

(ak) Among the Maasai the husband could allow the wife to have
sexual intercourse with members of his age group but he
reserved the right to object to any member of that age group.
The husband has the duty to maintain his family and to ensure
that they have adequate food and clothing.

(al) In Muli v. Githuka, it was held that the husband reserves the
right to chastise his wife where she has wronged him however
excessive beating is not allowed in customary law. Can any
beating ever be justified?

(am) On the part of the wife her duties include cultivating any fields
given to her by the husband. Maintaining the household
including preparing the food for her family and bearing and
looking after her children.

(an) In the event of a divorce, the husband’s duty to maintain the

wife ceases because once the divorce, she returns to the
parents and is now the parents’ responsibility and no longer the
husband’s.

a. Marriage under Islamic Law

58
(ao) Although Islamic marriages are now addressed by the Marriage
Act of 2014, hardly does the Act make substantial provisions to
regulate the practice. Indeed, section 49(3), “Any provision of
this Act which is inconsistent with Islamic law and practices
shall not apply to persons who profess the Islamic faith.” This is
in line with the Constitution that provides in article 24(4) that,
“The provisions [of the chapter on human rights wherein the
aspect of marriage is covered] on equality shall be qualified to
the extent strictly necessary for the application of Muslim law
before the Kadhis’ courts, to persons who profess the Muslim
religion, in matters relating to personal status, marriage,
divorce and inheritance.

(ap) There are 3 aspects to a marriage under Muslim Law: (i) the
legal aspect; the social aspect; and the religious aspect. Legally
a Muslim marriage is a contract which provides for certain
requirements as regards consent and also provides for
provisions for its breach. One can enforce a Muslim marriage
judicially and it provides for specific terms. Socially, Muslim
marriages normally provide higher status to women in society,
but there are also restrictions placed. In Islam, polygamy is
allowed though limited to a certain extent. Insofar as the
religious aspect is concerned, marriage in Muslim law is
considered to be a sacred covenant; the Prophet Mohammed
encouraged it.

i. Forms of Marriages
(aq) There are 3 forms of marriages under Muslim Law and the
classification is based on their legality:

1. Sahih Marriage (Valid)

(ar) This is basically a marriage which has conformed to all the laid
down requirements and which depends on the schools of faith.
59
 1. Batil Marriage (Void)
(as) This is in fact a void marriage either by reason of some blood
relationship between the parties or some other incapacity to
contract the marriages. There are 2 consequences of this
marriage as in children born out of this marriage are considered
illegitimate and no mutual rights or obligations arise as
between the parties who are married.

1. Fasid (Irregular)
(at) This is where either there were no witnesses to that marriage or
where the woman was undergoing the period of Iddat or where
the marriage is with a person from a different religion or where
a man purports to marry a fifth wife. The effect of an irregular
marriage is that as between the parties it does not confer any
rights; however children born out of this union are considered
legitimate.

(au) Under Muslim Law marriages arising out of cohabitation are not
permitted. One has to comply with all the requirements of
marriage. So, if there is cohabitation without formalisation, the
marriage is Fasid.

i. Conditions Relating to Capacity

(i) The parties must be biologically a man and a woman;

(ii) The parties must have reached the age of puberty;

(iii) On the part of the man he can be single or married as long as

he marries only four wives. Even so, a man cannot marry two
wives at the same time. If he does, the marriage is considered as
being irregular. In the case of the woman, she has to be single and
single includes widowed or divorced. Where she has been widowed
or divorced, she has to wait for a period of about 4 month before
she can contract another marriage. This waiting period is what is

60
 known as the ‘Iddat’ period and its purpose is to determine
whether or not she is expectant before she can contract another
marriage.

(iv) The parties should not be within prohibited degrees of

consanguinity and affinity. This is in accordance with the Marriage
Act of 2014.

(v) Consent of the parties is very important to all types of

marriages. In some instances, consent of legal guardians may also
be required. In Ockba v. Ockba [1957] EA 675, the Plaintiff was
the father of the Defendant and he sought a declaration that he
was entitled to her guardianship and custody until she was
married. He also sought an injunction to restrain her from
marrying without his consent. The Defendant wished to marry an
Ethiopian who was a Christian. It was held that the Plaintiff was
entitled to the injunction restraining her from marrying without his
consent and that the proposed marriage would not only be invalid
for lack of consent of the father but also for the reason of the
religion of the proposed bridegroom because a Muslim woman
cannot validly marry a non-Muslim man.

(vi) Social status of the husband is important in Islamic law. In

Mohammed v. Salim 6 KL.R 91, it was held that a woman should
marry a man within her station in life or within the same social
status and this is because under Muslim law the husband is
required to maintain his wife according to the standards she is
used to. In Bibi v. Bibi 8 E.A.L.R. 200, the petitioner was seeking
to have her niece’s marriage annulled on grounds that she had
married a man of lower status and bad character without the
consent of her guardian. The court granted her those prayers.

61
(vii) There are requirements as to the parties’ religion. Under some
Muslim sects a Muslim man may marry a non-Muslim woman as
long as the woman belongs to a religion which has a divine or holy
book. In some other sects, marriages between Muslims and none
Muslims is not permitted at all however among all Muslim sects a
Muslim woman cannot get married to a non-Muslim man.

ii. Formalities to Contract a Muslim Marriage

(av) An Islamic marriage under the Marriage Act must be officiated
by a kadhi, sheikh or imam as may be authorised by the
Registrar and celebrated in accordance with Islamic law (s 49).

(aw) Under the Islamic law:

(i) An offer and acceptance must be entered into by the parties or

their guardians. The following procedures should be met:

(a) A declaration of offer firstly made by one party and the

other party must accept;

(b) The words in the declaration or offer must show a clear

intention to contract a marriage;

(c) This declaration and acceptance should be made in the

presence of sufficient witnesses;

(d) The declaration and acceptance should be made in one

meeting or in the same meeting.

(ii) The man is required to pay some form of compensation known

as ‘Mahar’. This is payable to the wife and becomes part and
parcel of her Estate. Unlike dowry in African customary law
which is payable to the family Mahir is paid to the wife herself
and can be paid either before parties enter into conjugal
cohabitation, during the course of the marriage or even after
the dissolution of the marriage. The amount payable is not fixed

62
 however it will depend on the different Muslim sects and it is
normally fixed according to the social status of the wife’s family.

(ax) Registration: Under the repealed Mohammedan Marriage and

Divorce Registration Act, section 9 required that once a Muslim
marriage had been contracted, it was to be registered within 7 days.
The registrar had to be satisfied as to the identity of the parties, the
capacity of the parties, and that the marriage did actually take place
before registering the marriage.

(ay) However, section 24 of that Act provided that the fact that
parties omitted to register their marriage did not invalidate that
marriage; and where marriage was invalid, registration did not
validate it (Public Trustee v. Terro Vol. K.L.R 129).

(az) The requirement is not contained in the Marriage Act s 49. A

person authorised to officiate at a marriage must record the details of
a marriage in the prescribed form and deliver the record to the
Registrar for the registration.

(ba) For the marriage to be registered, it is required that the parties

and two witnesses attest to the marriage.

i. Rights & Duties Bestowed

(bb) Islamic marriages bestows upon the parties the following rights
and duties:

(i) Wife is entitled to a dowry and she may choose to recover it if it is

not paid in full.

(ii) The husband is under a legal obligation to maintain his wife to the
standards that she is used to. Refer to Saliha Binti Baraka v.
Tiabit Bin Salim (2 E.A.L.R. 131) Saliha case deals with
recovery of dowry and the other one as to maintenance.

63
(iii) Each spouse has a right to the others consortium and to
enforce performance of the other spouses marital duties.

(iv) The husband has the right to restrain the wife’s activities and
to exercise marital authority over her and the children.

(v) Where the man has married more than one wife Muslim Law
obligates him to treat each wife with kindness and equality.

a. Hindu Marriages
(bc) These were governed by the Hindu Marriage and Divorce Act
before the Marriage Act of 2014. Substantially, the new Act did
not materially alter Hindu marriages.

(bd) Hindu Marriages are strictly monogamous. Hindu Marriages

were potentially polygamous before the enactment of the Hindu
Marriages and Divorce Act. In the Act, it was expressly provided
that after enactment of the Act that Hindu Marriages were to be
monogamous.

(be) Moreover, section 27 (2) of the Act provided that Hindu

Marriages have got the same definition as the definition within
the Matrimonial Causes Act. This meant that they had to be
dealt with as statutory marriages were. And under section 171
of the Penal Code, such marriages were subject to the offence
relating to bigamy.

(bf) Section 47 of the Marriage Act of 2014 provides that, a Hindu

marriage may be officiated by a person authorised by the
Registrar and in accordance with the Hindu religious rituals of a
party to the marriage.

i. Forms of Hindu Marriages

(bg) Customarily, there are two forms of Hindu marriages.

64
(i) Brahma Marriage: where no marriage consideration is paid by
the groom’s father; and

(ii) Asura Marriage: where marriage consideration is paid by the by

the groom’s father.

(bh) In both cases however, dowry is paid by the bride’s family.

i. Conditions Regarding Capacity to Contract a

Hindu Marriage
(bi) Insofar as capacity is concerned:

(i) Neither party should be married to another person;

(ii) The parties should be of sound mind at the time of contracting

the marriage;

(iii) The parties must have attained the age of 18 years;

(iv) The parties should not be within the forbidden degrees of

consanguinity and affinity under the Marriage Act; and

(v) Consent of both parties must be given.

i. Formalities
(bj) Traditionally, two forms of rites may be performed when a
Hindu marriage is being celebrated. This was found under
section 5(2), (3) of the Hindu Marriage and Divorce Act, but has
not been replicated in the Marriage Act, though it reflects the
Hindu customs and is thus still applicable. The rites include:

(i) Saptapadi ceremony: Under this ceremony the bride and the
bridegroom go round a sacred fire seven times and on the
seventh round the marriage is deemed to have been
celebrated; and

65
(ii) Anand Karaj ceremony: Here parties go round their holy book
known as the Granth Sahib four times and on the fourth round
the marriage is deemed to be complete and binding.

(bk) Registration: Under the Marriage Act, the person authorised to

officiate Hindu marriages is required to record the details of a
marriage in the prescribed form and deliver the record to the
Registrar for the registration of such a marriage. In practice,
registration neither validates nor invalids a marriage (See the
repealed Hindu Act at s. 6).

i. Matrimonial Rights and Duties of Hindu

Marriages
(bl) They are generally that the parties have a right to consortium
and the right to consortium is similar to that that arises under
civil and Christian marriages. The wife has a right to
maintenance; and under Hindu custom, the wife has a duty to
cohabit with her husband and to submit herself to his authority.

66
7. Recognition of Foreign Marriages
a. Introduction
(bm) A marriage will have a connection with a foreign law in a
number of ways:

(i) It may have been celebrated abroad but the issue of validity
arises in a Kenyan court; or

(ii) One or both parties to the marriage may be domiciled or

resident in a foreign country.

(bn) The question which arises on the validity of these marriages is

which law will determine whether a valid marriage has been
contracted? Is it Kenyan law or is it some foreign law?

(bo) The applicable law for purposes of determining the validity of

such a foreign marriage (marriage with links with foreign Law)
is dependent on two aspects:

(i) Formal validity of that marriage;

(ii) Essential validity of the marriage.

(bp) Generally the law governing the formal validity of that marriage
will be the law of the country where the marriage was
celebrated. This is known as the Lex Loci Celebrationis.

(bq) When it comes to essential validity as in issues related to

capacity, the law that governs is the law of the parties domicile
– lex domicili

(br) So for a foreign marriage to be valid in Kenya it must comply

with the formal requirements under the laws of the country
where it was celebrated and must fulfil the issues as to capacity

67
 and the law of the parties domicile and if it is formally and
essentially valid under the applicable laws then it will be
applicable in Kenya.

(bs) Here so long as the parties comply with the formal

requirements of the law of the place of celebration then that
marriage will be recognised as formally valid in Kenya. This is
so even if that marriage does not comply with the formal
requirements of the parties’ personal law which is the parties’
domicile. In some cases parties will go to a certain place to
evade conditions laid down by their personal laws.

(bt) In Simonin v. Mallac, the parties came to England to get

married so that they could escape the condition as to parental
consent which prevailed in France which was their domicile. It
was held that marriage was valid in England. The converse also
applies if it is formally invalid in the place where it was
celebrated and formally valid under their domicile that
marriage will be formally denied.

(bu) This was the case in Berthiaume v. Dastous [1930]. The

spouses were domiciled in Canada and they were married in a
Roman Catholic Church in France. However under French law a
church marriage had to be preceded by a civil ceremony which
the parties did not do and therefore under French law this
marriage was void. The court held that that marriage was void
even though under the law of Quebec a religious ceremony
alone would have been sufficient.

a. Formal Validity
(bv) This refers to the rules that relate to formalities of contracting a
marriage. This will normally be rules relating to the
preliminaries to marriage e.g. requirements as to notice and so

68
 forth. Also rules relating to the actual ceremony act itself such
as time, place, nature of the ceremony, requirements as to
witnesses. In Apt v. Apt a rule which permitted marriage by
way of proxy was classified as a formality and such a marriage
in a country where marriages by proxy are permitted was held
to be valid and recognised by the English Courts. The marriage
took place in a country where they permitted marriages by
proxy.

(bw) In Ogden v. Ogden, the problem was whether parental

consent was one of formality or capacity. Parental consent in
this case was classified as an issue of formality and since the
marriage had been celebrated in England, English law was
applied as opposed to French law which was the law of the
parties’ country of domicile. Had it been an issue of capacity,
under French law the parties would have required parental
consent which had not been given that marriage would have
been declared null and void.

(bx) Exceptions That Apply To the Rule That Formal Validity Is

Governed By the Law of the Place Where the Marriage Took
Place.

i. Under Statute
(by) Under the Marriage Act in ss 5(2) & 38A (which is an
amendment), marriages can be contracted under Kenyan law
before a Kenyan consular or other public officer in any foreign
country where at least one party to that wedding is a Kenyan
citizen. Essentially, where Kenyans marry in Kenyan embassy,
the applicable rule will be the Kenyan law. Such marriages
must be solemnised at the official residence of the marriage
officer between the hours of 8 am and 6pm and in the presence
of two or more witnesses. Once it has been contracted that
69
 marriage will be formally valid in Kenya even though it may not
be formally valid in the country where it was celebrated.

(bz) The two common goal exceptions are:

(i) Marriages in situations where compliance with the local law is

impossible for example when you get married in a place where
no laws apply or in an uninhabited region.

(ii) Where the marriage occurs in a country under hostile

occupation and at least one of the parties to that marriage is a
member of the occupying forces.

(ca) In Taczanowska v. Taczanowski, two Polish nationals, domiciled

in Poland were married in Italy in 1946 by a Polish Army
Chaplain, an Episcopal ordained priest of the Roman Catholic
Church, and therefore their marriage was valid according to the
English Common Law. The husband was serving in the Polish
army in occupation in Italy. The ceremony did not comply with
the local forms and was therefore void by Italian domestic law,
but it would have been recognised as valid by that country’s
private international law if it was valid by the national law of
the parties. It was however, not valid by Polish law. The parties
moved to England and later the wife petitioned for a decree of
nullity on the ground that the marriage was void for non-
compliance with the local forms. The court of appeal felt that
since the parties were presumed not to have submitted
themselves to the Italian law of the place of celebration, that
law did not have to be applied. It was considered that there will
often be no submission by a member of the military forces in
occupation of a country and as such it was held to be the case
here. As Italian law was not applicable and the law of the

70
 parties’ domicile was considered irrelevant, English common
law was applied and the validity of the marriage upheld.

(cb) In these two exceptions, the law that will then apply is the
common law as to formalities of marriage. That marriage will be
valid so long as the formal requirements under common law are
met.

(cc) They should take each other as man and wife in the presence of
each other and that an ordained priest should perform the
ceremony (Preston v. Preston).

a. Essential Validity
(cd) This is concerned with issues of capacity and the applicable law
is the law of the parties domicile. The problem that arises to the
application of this rule is what test is to be applied to determine
the parties’ domicile. You may find parties domiciled in different
countries at the time of contracting the marriage or they may
even intend to acquire a different domicile after they get
married. So which law applies?

i. Dual Domicile Test

(ce) The traditional theory which has been used is the dual domicile
test. Under this theory it is stated that capacity to marry will
be governed by the law of the parties’ ante-nuptial domicile i.e.
each party must have capacity according to the law of his/her
domicile at the time of the ceremony to marry. This has been
applied in a number of cases. In Pugh v. Pugh, a British
officer, domiciled in England but stationed in Austria, married a
Hungarian girl in Austria in 1946. The girl, whose domicile of
origin was Hungarian, had gone to Austria with her parents to
escape from Russian advance. She was only fifteen years of age
and therefore, if her capacity had been governed by English

71
 domestic law, the marriage would undoubtedly have been
rendered void by the Age of Marriage Act 1929 which prohibited
a marriage “between persons either of whom is under the age
of sixteen. By Austrian law the marriage was valid, and by
Hungarian law it had become valid in that it had not been
avoided before she had attained the age of seventeen. The wife
submitted that the marriage was void for want of capacity, first
because the husband was a British subject with an English
domicile and therefore bound by the 1929 Act. Secondly and
alternatively because the essential validity of the marriage was
determinable by English law as being either the law of the
husband’s domicile or the law of the country of the proposed
matrimonial home. Pearce J granted a decree of nullity, holding
that the wife was entitled to succeed on both submissions.

(cf) (Republic v. Brentwood Registrar of Marriages)

i. Intended Matrimonial Home Test

(cg) Under this test parties should have capacity to marry as
determined by the law of their intended matrimonial domicile.
This test has been criticised mainly because it tends to
invalidate marriages such that if parties don’t have capacity,
still the marriage will be declared null and void. This has been
supported by social grounds.

(ch) Cases which apply to the test include De Reneville v. De

Reneville; Kenward v. Kenward; Radwani v. Radwani; Cheni v.
Cheni – prohibited degrees of relationships.

(ci) In Mohamed v. Knott (1969) 1 Q.B - it can apply to us in

Kenya and the issue was the age of the parties. A Nigerian man
married a 13 year old and then left to live in England with the

72
 bride and the marriage was recognised in England because
under their domicile law they could get married.

(cj) Three exceptions to this rule on essential validity

(i) The rule in Sottomayor v. De Barros – this case decided which

was an exception that the validity of a marriage celebrated in
England between persons of whom one has an English and the
other a foreign domicile is not affected by any incapacity which
though existing under the law of such foreign domicile does not
exist under English law (Kenyan Law). This exception was a way
of going round the test of dual domicile test. In Sottomayer the
wife and husband were first cousins the husband in England and
wife in Portugal. Under Portuguese law marriages between
cousins were prohibited in Portugal but allowed in the UK. The
marriage was held to be valid in the UK.

(ii) Where the law of the place of celebration is also the law where
that issue as to validity is being heard. It is the law of forum
deciding the issue of validity. In that case one applies the law of
the place of celebration to determine issues of essential validity.
That is because if you apply another law you will be asking a
forum to apply law which is inconsistent with its own laws.
Remember if the Lex fori is the same as Lex loci celebrationis.

(iii) If the foreign domicile law that governs the issue of capacity is
repugnant to public policy, it will not be recognised. Therefore
courts will not recognise a foreign incapacity which is of a penal
or discriminatory nature. For example incapacity which is based
on grounds of race, religion or any other classification which
discriminates or penalises a particular section of the population
(Chetti v. Chett (1909) P 67).

73
8.Matrimonial Causes I: Annulment of
Marriages
a. Introduction
(ck) Prior to the Marriage Act 2014, annulment of marriages was
provided for under Section 14 of the Matrimonial Causes Act.
This meant that these provisions were only applicable to
statutory and Hindu marriages that were governed by the Act.
It is notable that the so called statutory marriages were those
contracted under the repealed Marriage Act and the Christian
Marriages and Divorce Act.

(cl) Currently, annulment is provided for under ss 73, 74, and 75 of

the Marriage Act and is applicable to all forms of marriages.

a. Difference between Nullity and Divorce

(cm) When the court is moved to annul a marriage, it is essentially
being asked to hold that there was never a marriage at all,
since there were certain incapacities that ought to have
prevented the marriage from being contracted in the first place.
When one seeks for divorce, on the other hand, he/she
acknowledges the existence of s marriage but seeks it to be
terminated henceforth.

(cn) It is also notable that the grounds for annulling a marriage are
different from the grounds under which a divorce is issued.

a. Grounds of Annulment of Marriages

(co) Section 73 of the Marriage Act provides that a party to a
marriage may petition the court to annul the marriage on the
ground that:

74
(i) The marriage has not been consummated since its celebration;

(ii) At the time of the marriage and without the knowledge of either
party, the parties were in a prohibited relationship;

(iii) In the case of a monogamous marriage, at the time of the

marriage one of the parties was married to another person;

(iv) The petitioner's consent was not freely given;

(v) A party to the marriage was absent at the time of the celebration
of the marriage;

(vi) At the time of the marriage and without the knowledge of the
husband, the wife is pregnant and that the husband is not
responsible for the pregnancy; or

(vii) At the time of the marriage and without the knowledge of the
petitioner, the other party suffers recurrent bouts of insanity.

(cp) The court shall only grant a decree of annulment if the petition
is made within one year of the celebration of the marriage; and
the marriage has not been consummated since the petition was
made to the court.

i. Lack of Consummation
(cq) Consummation is the sexual intercourse between the parties
after the marriage is solemnised. The ground of lack of
consummation may arise out of impotence leading to physical
incapacity to consummate or wilful refusal to consummate.

(cr) In D.E. v. AG 163 E.R it was stated that in order to amount to

consummation the sexual intercourse must be ordinary and
complete sexual intercourse.

(cs) Regarding to physical incapacity, in D.E. v. AG, the wife had a

physical deformity that made full penetration impossible and it
was held that this amounted to physical incapacity to
75
 consummate the marriage and it was declared null and void.
Physical deformities which make consummation difficult must
be those which cannot be corrected. If they can be corrected,
courts are reluctant to declare such a marriage null and void
(see S v. S (1956)).

(ct) Where a party refuses to consent to any sexual intercourse, and

the refusal is steadfast and determined, it will lead to
nullification of the marriage. In S v. S, the court dealt with both
physical incapacity and wilful refusal to consummate. The
consummation of the marriage in this case was prevented by a
physical defect in the wife, which was curable. The husband
suggested to the wife that she should consult a doctor but the
wife delayed in consulting the doctor. The husband then
petitioned for nullity of the marriage on the grounds that of
incapacity and wilful refusal to consummate. Upon service of
the petition the wife expressed a willingness to undergo the
necessary operation which she underwent and which removed
the defects. It was held that the husband had not proved that
failure of the wife to see the doctor amounted to wilful refusal.
Her conduct was merely a state of indecision and mere neglect
to comply with the husband’s request was not necessarily the
same as refusal. The petition therefore failed on the ground of
wilful refusal and it also failed on the ground of incapacity on
the ground that consummation of the marriage was not
practically impossible especially since the result of the
operation was to remove any impediment in consummation.

(cu) Refusal to consummate need not be contractual (Jodla v. Jodla

and Kaur v. Singh). In Jodla the marriage was supposed to be
a church ceremony while in Kaur it was a Hindu ceremony and
in both cases the husbands failed to organise for the ceremony

76
 as a result of which the wives refused to consummate the
marriages on religious grounds. It was held that wilful refusal
was on the part of the husbands and not on the wives because
they had failed in a crucial consummation exercise which was
crucial.

(cv) The use of contraceptives will not affect a marriage and this
was the case in Cowen v. Cowen (1945) 2 II E.R. 1946;
Baxter v. Baxter. The fact that a husband or wife is sterile will
not affect consummation of marriage (R v. R (1952) ITLR
1201).

(cw) Under s 74(3) of the Marriage Act, where a petitioner alleges

the wilful refusal of one party to consummate the marriage it
may not be presented by the party against whom the allegation
is made.

i. Marriage within Prohibited Degrees

(cx) Where parties are related to one another within the prohibited
degrees of affinity and consanguinity the marriage will be null.
However, the court shall only annul the marriage if at the date
of the marriage the petitioner was ignorant of the fact that they
were related within prohibited degrees.

i. Bigamy
(cy) Where either spouse is married to another person and that
other marriage is still subsisting, then the marriage will be null
and void. However, in this case also, the court will not annul the
marriage if at the date of the marriage the petitioner was aware
of the fact.

i. Fraud or Duress
(cz) A marriage will not be valid unless the parties give their
express consent. More specifically consent will not be valid

77
 where it is given under duress. In such circumstances the
marriage will be deemed voidable. This means that the
marriage will be treated as valid until either party chooses to
avoid it.

(da) It is sometimes difficult to establish what behaviour will

constitute duress but it has been stated in the case of Singh v
Singh (1971) that there must be fear sufficiently grave to
vitiate true consent. This case involved an arranged marriage
between two young Sikhs against the girl's wishes. It was
entered into out of obligation and religious tradition. The court
said it did not constitute fear.

(db) This approach was followed in the case of Szechter v Szechter

(1971) when sufficiently grave was further defined as “a threat
of immediate danger to life, limb or liberty”.

(dc) The approach was rather narrow and revolved around threats of
imminent danger, suggesting that duress could not be anything
else. As a result a different approach was adopted in the case
of Hirani v Hirani (1982) with the court asking “did the threats
constitute undue pressure overbearing the person's will?” Thus,
the test for duress became more subjective. In this case, the
parents of the Petitioner had threatened to throw her out of
their home unless she married the man which they had chosen.
The court analysed whether the Petitioner had given consent
out of genuine fear, irrespective of whether other people would
have been stronger. The court held that the parents' threat of
homelessness had invalidated the daughter's consent. We see
the recognition of emotional pressure.

(dd) The fear does not necessarily need to arise from the other party
to the marriage. Quite often, it is from a third party such as a

78
 parent or other relative. In Buckland v. Buckland (1968), the
petitioner was seeking nullity was accused of defiling a girl of
15 years. Although he was protesting his innocence, he was
advised that unless he married the girl he would go to prison.
He contracted the marriage and later filed for a nullity on the
grounds of consent. The petition was granted.

i. Unsoundness of Mind, Drunkerdness, or

Epileptic Fits
(de) Where a party to a marriage is at the time of contracting that
marriage of unsound mind, drunk, insane or suffers from
epileptic fits, this will be a ground for nullity of that marriage.
This only affects the marriage if it happens at the time of
contracting the marriage. The grounds ensure that the parties
are capable of knowing what they are entering into.

i. Mistake
(df) However this will only be a ground in two circumstances only:

(a) Where the party relying on mistake proves that he/she

was mistaken as to the identity of the other party. I.e. he/she did
not marry the person they intended to marry. This is usually
difficult to prove when the person you are marrying is in front of
you and only happens where marriages by proxy or mail order
are allowed. In Singh v. Singh the woman married the man on
the mistaken belief that he was a famous boxer. The man shared
a name with the famous boxer and even told her that he had won
various championships. She petitioned for nullity on grounds of
mistake but the court held that she had married the man that
she intended to marry and was only mistaken as to his
qualifications.

79
(b) Where a party is mistaken as to the nature of the
ceremony and do not appreciate that he/she is contracting a
marriage. This was the case in Kelly v. Kelly, and Mehta v.
Mehta. In Mehta a woman got in into a marriage thinking that
she was celebrating becoming a Hindu but she was later to
discover that she had gotten married to a potentially polygamous
marriage and she petitioned for Nullity.

i. Venereal Disease
(dg) Where a spouse is suffering from a venereal disease in a
communicable form at the time of marriage then it will be
nullified.

i. Pregnancy
(dh) If at the time of contracting the marriage the woman is
pregnant by some other person other than her husband. In
Poulet Peerage Case, the wife was three months pregnant at
the time of contracting the marriage and the husband gave
evidence that he had not had any sexual intercourse with her
before the marriage and was granted a petition for nullity on
this ground.

i. Sham Marriages
(di) Sometimes the issue arises with issue to nullity about what are
sham marriages and whether these marriages are null and void.
Sham marriages are those where parties enter into a marriage
merely for purposes of representing themselves as married but
have no intention of cohabiting. This are normally conducted for
purposes of acquiring citizenship and acquiring jobs or just to
legitimise children. It has been held that such a marriage is
perfectly valid provided the parties have freely consented to it.
This was the ruling in Silver v. Silver (1955) in this particular

80
 case a German woman married an English man so that she
could be allowed to reside in England. Upon arrival in England
the parties separated and only met twice in a period of 29
years. After 29 years the wife filed for proceedings to nullify the
marriage on the grounds that the marriage was a sham
marriage. The court declined to declare the marriage null and
void on the grounds that it was their intention to get married
and the reasons were irrelevant. In such cases the option
available in sham marriages is divorce.

(dj) In Vervaek v. Smith (1983) 1 AC 45 the marriage was entered

into to avoid a wife being deported (she was a prostitute) from
England and the court held that the marriage was valid.

(dk) In Szechter v. Szechter (1971) P. 286 the marriage was

declared null and void on the ground that the parties had not
consented. They had entered into the marriage out of fear that
the woman would be killed. This was a marriage which was not
really consented to by the parties.

(dl) In Rosemary Moraa v. Charles Kizito, the woman in this

case entered into a marriage for purposes of legitimising a child
and cohabited with another man. It was held that the later
marriage was a legal marriage, the one arising out of
cohabitation.

a. Effects of a Decree of Nullity

(dm) At common law that marriage had some fatal consequences.
Where marriage was declared void any children of that
marriage were declared to be illegitimate and no legal
consequences could flow from that relationship e.g. man was
under no obligation to maintain the wife or children born of that
relationship and neither could they inherit from his estate.

81
 (dn) However this position was changed by statutory law both in
England and in Kenya. Under Section 14 of the Children Act,
any children born out of such a marriage will be treated as
legitimate. From legitimacy will flow other rights as to
maintenance and inheritance.

(do) Under section 14 of the repealed Matrimonial Causes Act, it

was provided that a marriage would still remain void under the
law irrespective of the fact that a decree of nullity had not been
granted. The fact that somebody did not go to court to get a
declaration that the marriage void did not change the fact of its
invalidity.

(dp) In the case where ground for nullity is either that at the time of
contracting the parties were of unsound mind or where the
ground is that one of the party’s was suffering from a venereal
disease or that the woman was pregnant, there are certain
conditions which must be proved by the petitioner. These are:

a) The petitioner has to show that at the time of contracting the

marriage, he/she was ignorant of the facts alleged;

b) The proceedings must be instituted within one year of the

marriage being contracted.

c) The petitioner must show that no sexual intercourse has taken

place between the parties after the petitioner discovers the
existences of those facts he alleges.

(dq) Section 75 of the Marriage Act of 2014 now provides that the
parties to a marriage which has been annulled by decree
absolute of the court shall be deemed never to have been
married, but a decree of annulment shall not:

82
a) Render lawful anything which was done unlawfully during the
marriage or render unlawful anything which was done lawfully
during the marriage; or

b) Affect the competence of either of the parties as a witness in

respect of anything done or omitted to be done, or any privilege
in respect of communications between them, during the
marriage; or relieve either party, of any debt properly incurred on
behalf of the other during the marriage.

a. Doctrine of Approbation
(dr) This doctrine deals with the question of whether the law should
keep alive any ground of nullity indefinitely in spite of the
outward behaviour of the parties indicating by spontaneous
cohabitation their approval of the union and thus registering in
the eyes of society a notion of valid marriage.

(ds) At common law, where parties stayed together for a long time,
say with a deformity that hindered consummation or where
they had accepted the wilful refusal to consummate, then
courts would not declare the marriage null and void on the
basis that the parties by staying so long together had assumed
that deformity and accepted it. In Harthan v. Harthan (1948)
2 All E.R the husband sought a declaration of nullity on a claim
of his own impotence and claimed that in their 20 years
marriage he had been unable to engage in any sexual
intercourse and the court declined to grant him the decree
citing this doctrine of approbation (G v. M (1885) 10 A.C. 71).

(dt) Under section 73(2)(a) of the Marriage Act, the court shall only
grant a decree of annulment if the petition is made within one
year of the celebration of the marriage.

a. Petition for Annulment

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(du) Section 74 of the Marriage Act provides that a petition for
annulment may be presented only by one of the parties.

(dv) Where a petitioner alleges facts of which only one party was
ignorant at the date of that marriage, it may be presented only
by that party.

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9. Matrimonial Causes II: Divorce
a. Divorce in Civil and Christian Marriages
i. History of Divorce Legislation
(dw) Divorce for the civil and Christian marriage are based on the
common law system that developed in England and was
regulated through legislation in Kenya and were thus referred to
as statutory marriages prior to the enactment of the Marriage
Act of 2014. Indeed, it should be noted that before the coming
into force of the 2014 Act, the Hindu, African customary and
Islamic practices in marriage were largely determined by the
cultural practices of the persons to whom they applied. Thus,
even though Hindu marriages were regulated by the Hindu
Marriage and Divorce Act, in practice, it followed the customs of
Hindus, while the Islamic and African customary marriages were
not entirely legislated.

(dx) The basis for marriage legislation in Kenya that is the precursor
for the civil and Christian marriages is the Order-in-Council of
1897 which basically applied English law to the Protectorate.
This included the Indian Divorce Act of 1869 which applied until
1904 when it was replaced by the Kenyan Divorce Ordinance.
The Indian Divorce Act was essentially an English law on
divorce that had been adopted for the benefit of the English
settlers in India.

(dy) Both the 1869 and 1904 laws made provisions to the effect that
Kenyan courts were to assume jurisdiction in any matrimonial
causes where parties were resident in Kenya. This differed from
the English law position where courts would assume jurisdiction

85
 on the basis of where the parties were domiciled (a common
law position upheld in English cases of Niboyet v Niboyet and
Lemesurier v Lemesurier).

(dz) In Magean v Magean, a kenya case, the wife had sought a

divorce on the grounds of desertion as her husband had
deserted and gone to live in Tanganyika. The problem the court
was faced with was whether the husband’s move to Tanganyika
meant that he had moved away from the wife's domicile (as
under common law, a wife did not have an independent
domicile but that of her husband). The Second problem was
whether the court could assume jurisdiction since she was not
resident in Kenya. The court in this case refused to grant her
divorce on the ground that her domicile was that of her
husband.

(ea) The result of this conflict led to a number of reforms. Thus, in

1926, the Kenya Divorce Validity Act was passed in the UK. This
provided that a divorce by courts in Kenya was valid in Kenya
as well as in England. At the same time, the Indian and Colonial
Divorce Jurisdiction Act was also passed in the UK, which
conferred divorce to parties domiciled in England. This
particular Act was applied to the Kenya Divorce Jurisdiction
Order in Council of 1938. Under this order, rules were made in
Kenya, which governed divorce where parties were resident in
Kenya and domiciled in England. Hence, whereas courts in
England assumed jurisdiction on the grounds of domicile, for
those settlers domiciled in England and resident in Kenya, the
courts assumed jurisdiction on the basis of their residence in
Kenya.

(eb) In the 1939 the Matrimonial Ordinances was passed replacing

the Divorce Ordinance. This was the precursor of the
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 Matrimonial Causes Act, cap 52 repealed in 2014. The Act was
basically passed to enable English settlers to acquire divorces
in the same manner as if they were in England and it was
basically as the English equivalent of 1925 and 1937. The Act
underwent a number of amendments but provided domicile as
basis for hearing cases with exception made to take care of the
situation which had risen in Case of Magean v. Magean. It was
provided in that regard than in cases where a wife had been
resident in Kenya for not less than 3 years, the court could
assume jurisdiction on the basis of her residence (otherwise it
would be on the basis of domicile in Kenya).

(ec) There were a number of changes in the UK law but Kenya did
not take those reforms into account. For instance, a major
reform in the UK was the 1969 Divorce Act which abolished all
grounds of divorce and gave one ground for divorce that the
marriage has irretrievably broken down. We still retained
various grounds for divorce in Kenya without adopting the
condition where the marriage had irretrievably broken down
until 2014 where the Marriage Act added this to the grounds for
divorce.

(ed) The other reform that took place in UK was in 1973 when the
Domicile and Matrimonial Proceedings Act was passed. This Act
considered the question of residency and provided that one
who petitioned for divorce if they are habitually resident in
England for a period of one year, i.e. on the basis of resident in
England. In Kenya one development occurred when the law of
Domicile Act was passed in 1970, this changed the common
law position and provided that a married woman can acquire
her own original domicile. Which means that wives can now be

87
 granted divorce on the basis of their independent domicile.
Jurisdiction dependent on which marriage has been contracted.

i. Ground for Divorce for Civil and Christian

Marriages
(ee) Sections 65 and 66 of the Marriage Act provide grounds for
divorce in Christian and Civil marriages which are similar. The
following grounds exist in both cases:

(a) Adultery;

(b) Cruelty;

(c) Desertion;

(d) Exceptional depravity; and

(e) Where there is an irretrievable breakdown of the marriage.

1. Adultery
(ef) Adultery is consensual sexual intercourse between a married
person and a person of the opposite sex who is not their spouse
during the subsistence of the marriage.

(eg) There are certain requirements for proof of adultery:

a) There must be a certain amount of penetration by the male

person. In (Dennis v Dennis), the wife and her lover wanted to
commit adultery and the lover at the crucial moment proved
impotent and therefore no sexual intercourse took place. The
court held there was no adultery since no penetration had taken
place.

b) The adulterer's act must be done voluntarily and with the consent
of both parties; therefore rape will not amount to adultery unless
the man charged with rape proves consent (See Redpath v
Redpath). Likewise if a person is mentally incapable of
understanding that what they are doing is actually wrong, then

88
 again no adultery will arise. In one case it has even been held
that where a wife committed adultery under the influence of
alcohol then she was no guilty of adultery (Goshawk v
Goshawk, see also S v S).

c) It has been argued by legal scholars that so long as the husband's

consent has been sought then there is no adultery, but if no
consent has been given, it may amount to adultery.

1. Cruelty
(eh) The second ground is that of cruelty. Cruelty is conduct of such
a character that poses danger to one’s life or health, both
bodily and mental; or conducts which give rise to a reasonable
apprehension of such danger. So it may be conduct that gives
actual or may give rise to reasonable apprehension that this
will happen in future.

(ei) For one to prove cruelty, the alleged act or mission must be
grave and weighty and substantial and above the normal wear
and tear of marriage life. Whatever is alleged must be assessed
by the court to see whether they are grave and weight. In
Gollins v. Gollins the court stated:

(ej) Whereas a blow speaks for itself insults, humiliations, meanness,

impositions, deprivations and the like may mean the interpretation of
the underlying intention for an assessment of their fullest
significance.
(ek) In some cases, the acts are very clear while in others, it needs
to be interpreted. In Le Brocq v Le Brocq, the wife alleged
that husband ignored her and it was said this was not cruelty
(see also McEwan). It must pose danger to life. (Squire v.
Squire, Collins v Collins, King v. King). The cruel act must
be substantial an above the ordinary wear and tear of married
life.

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(el) Once the acts are found to be substantial, then the intention to
be cruel will not be an essential element and it doesn't have to
be proven. The court will not inquire into the motive of that
cruelty.

(em) In Williams v. Williams, the plaintiff constantly accused his

wife of infidelity, induced by imaginary voices which informed
him of her lover and he undertook to search for them. The wife
petitioned for divorce on the grounds of cruelty and in the
course of the hearing of the petition it came to light that the
husband was actually mentally unstable. The court held that
the fact that he was mentally unstable was not a defence for an
offence of cruelty and granted the divorce.

(en) In Squire v. Squire, because of the wife's illness the husband

could not sleep, he had to read her, talk to her, etc. until the
husband had a breakdown. The Court held there was cruelty
even though there was no intention to be cruel from the wife.

(eo) Other examples of cruelty from decided cases include:

 Conviction of a spouse for a criminal offence (In Stanwick v.

Stanwick, a case about mental torture to the other spouse);

 Constant nagging (King v. King); and

 Denial of sexual intercourses (Sheldon v Sheldon and Slon v.

Slon);

 Sexual transmitted diseases (Browning v. Browning).

 Sterilization of spouse without the consent of the other (Bravery

v. Bravery) - Husband had an operation without the knowledge of
the wife after the first child. Court granted divorce on this ground;

1. Desertion

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 (ep) Desertion will be ground for divorce if the respondent has
deserted the petitioner without cause for a period of at least
three years immediately preceding the petition. Without the
intention to remain permanently separated.

(eq) Where a petitioner is relying on desertion, three factors have to

be proved:

i) The factum of separation - The parties must physically separate.

So when the respondent is out of communication or fails to
perform matrimonial duties, this is not desertion unless there is
physical separation. In Le brocq, the wife bolted the matrimonial
bedroom but she continued to perform other matrimonial duties
and he also continued to pay her weekly allowance. The court
held there had been no desertion. In the words of the court, there
may have been a separation of the bedrooms but the work of the
matrimonial home carried on.

ii) Intention of the deserting spouse to remain separated - known as

the animus deserendi. Inferred from words and actions to
permanently cease the matrimonial union. Certain intentions will
not be inferred where the deserted spouse has consented to the
separation. So as part of proving the intention the petition must
also prove absence of their consent in that separation. Likewise
where spouse is only too happy or relieved to see the other leave
does not amount to consent on the part of the petition. Actual
consent is required. Where the respondent is incapable of
understanding his or her action cannot be held to have deserted.
In Perry the wife believed that her husband wanted to murder
but this belief was as a result of her mental instability and as a
result she left the matrimonial home. The court held that she was
not guilty of desertion because she lacked the capacity to form
the intention to desert.
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iii) Lack of a reasonable or justifiable cause for withdrawing from
cohabitation - It must be proved the spouse left without a
reasonable cause. Instances where respondent may be justified in
deserting include:

a) Necessity, e.g. where imprisoned. May justify the other

spouse in deserting

b) Spouse is hospitalized or isolated - e.g. in a mental

institution. May justify the other spouse to desert. In G v G
the wife deserted because she claimed because children
suffering from mental illness.

c) Where a spouse deserts because of the other spouse

desertion and in such cases the person who is guilty of
desertion (Constructive desertion). The departing spouse
causing the other person to desert. A number of cases
illustrate such constructive desertion. In Dickson v.
Dickson, the husband installed a mistress in the
matrimonial home forcing the wife to leave. In Baker v.
Baker the husband forced the wife to commit adultery he
was accused of constructive desertion. In Winnan v.
Winnan, the wife kept 25 cats in the matrimonial home and
she preferred the cats to the husband. She was guilty of
constructive desertion. In Colt v. Colt constructive
desertion was inferred from drunken behaviour.

1. Exceptional Depravity
(er) This was no ground under the repealed system. However, some
of the ground from which divorce was granted on the basis of
cruelty may fall within the ground of depravity. These would
include:

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 (i) Sodomy - In T v T, the husband convinced the wife that all
married couples commit sodomy. (This is also an independent
ground for divorce).

(ii) Where one commits bestiality (Crawford v. Crawford);

(iii) Lesbianism (in Hart v. Hart);

(iv) Sexual assault on one’s children (Ivens v. Ivens);

(v) Excessive sexual demands (Holborn v. Holborn);

(vi) Violent and obscene language (Hart v. Hart).

(es) In all sexual offences, collaborative evidence is needed.

1. Marriage is Irretrievably Broken Down

(et) This is a new ground created under the Marriage Act 2014. In
England, the practice has been in existence for some time. In
fact, all other grounds for divorce would inevitably lead to the
plea that the marriage is irretrievably broken down. Thus, one
could only get a divorce on the ground that the marriage had
irretrievably broken down (i.e. permanently).

(eu) The court in England accept: adultery; unreasonable behaviour;

desertion 2 years' separation; and 5 years' separation as proof
of the irretrievable breakdown of a marriage. Generally, one
only uses the 'strongest' fact (i.e. where most evidence is
available) to show 'irretrievable breakdown' as relying on more
than one fact will complicate your case.

(ev) Under s 66(6) of the Marriage Act, a marriage has irretrievably

broken down if:

a) A spouse commits adultery;

b) A spouse is cruel to the other spouse or to any child of the

marriage;

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c) A spouse wilfully neglects the other spouse for at least two years
immediately preceding the date of presentation of the petition;

d) The spouses have been separated for at least two years, whether
voluntary or by decree of the court;

e) A spouse has deserted the other spouse for at least three years
immediately preceding the date of presentation of the petition;

f) A spouse has been sentenced to a term of imprisonment of the for

life or for a term of seven years or more;

g) A spouse suffers from incurable insanity, where two doctors, at

least one of whom is qualified or experienced in psychiatry, have
certified that the insanity is incurable or that recovery is
improbable during the life time of the respondent in the light of
existing medical knowledge; or

h) Any other ground as the court may deem appropriate.

1. Presumption of death
(ew) Under the Marriage Act, s 16 provides that a “marriage
registered under this Act subsists until it is determined by a
decree declaring the presumption of the death of a spouse.”

(ex) This ground existed previously under 22(1) of the Matrimonial

Causes Act (while all the other grounds fall under s.8). It was
provided thereunder that where a spouse has a reasonable
ground to believe that the spouse is dead and where that other
spouse has been continuously absent from the matrimonial
home for a period of at least seven years preceding the
petition. Then this will be a ground for divorce and court may
grant such divorce presuming the death of the other spouse.

(ey) In C. Wall (1950) it was held that when the wife reappeared
after her husband’s death, it was too late to restore the couple

94
 to their former status. However, the wife was still entitled to
claim whatever incidental rights she had arising from the
divorce, such as maintenance and custody of children.

i. Standard of Proof Required in Divorce Cases

(ez) Section 10 of the Matrimonial Causes Act provided for this:

(a) Unlike other civil cases it is one of beyond reasonable doubt.

The petition must satisfy the court of the facts of his or her case
(See Blyth v Blyth);

(b) He or she has not condoned or connived in the facts alleged.

(c) The petitioner has to prove has not colluded with the other
party in bringing the divorce petition.

(d) Where adulterer is alleged the petition has to prove that he or

she was not an accessory to that adultery.

(e) Where cruelty is alleged, it has to be proved that the petitioner

has not condoned the cruelty.

(fa) In Mathai v Mathai it was stated that when considering the

standard of proof it was required to establish the commission of
a matrimonial offence the court must be satisfied beyond
reasonable doubt or satisfied so as to feel sure that guilt has
been proved (See also McNeil v McNeil under the Matrimonial
Causes Act). In the latter the husband did not provide any
documentary evidence or any witnesses to prove his claim that
his wife had deserted. It was held he had not proved an
intention to desert, which is one of the elements for desertion.

i. Bars to Divorce
(fb) The petitioner has to prove that he has not connived with the
commission of matrimonial offence.

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(fc) There are two bars to divorce if proved to exist, divorce will not
be granted.

1. Absolute Bars, and

2. Discretionary Bars.

(fd) If an absolute bar is found to exist, then the court has no choice
but to refuse to grant the divorce. On the other hand, where a
discretionary bar is proved the court may or may not grant the
petition.

1. Absolute Bars
• Connivance
(fe) Connivance is where the adultery of one spouse has been
caused or has been knowingly or recklessly permitted by the
other spouse. In such case the other spouse is an accessory to
the adultery. If the court is satisfied of the evidence that the
petitioner has been an accessory or has connived at the
adultery then it has to dismiss the petition. The principles as to
what constitutes connivance were laid down in Churchman v.
Churchman (1945) P 44 it was stated as follows:

(ff) It is the essence of connivance that it precedes the event and

generally speaking the material event is the inception of the
adultery and not its reputation although connivance at the
continuous of an adulterous association may show that the party
conniving must be taken to have done so at the first.

(fg) In this case it was stated that the material event is the
inception of the adultery that is when the petitioner first knew
of the adulterous association, he must have connived for the
adultery to happen.

(fh) In Godfrey v. Godfrey & Wall (1965), in this case the court
held that a husband petitioner was guilty of connivance at his

96
 wife’s adultery. The wife told the husband that she was going to
live with the co-respondent i.e. Wall. The co-respondent then
came to stay at the matrimonial home. The husband one day
after a drink or two came home and found the wife and co-
respondent embracing each other. He then told them “if you
two want to go to bed together then why the hell don’t you”
which is exactly what the wife and Wall proceeded to do. The
next day the petitioner turned the co-respondent out and
chased him out of the home but the wife and the co-respondent
continued with the association and eventually the wife moved
out to live with the co-respondent. When the husband
petitioned for divorce on grounds of adultery the court in
refusing to grant him the decree held that he had not shown
that his initial connivance was not the effective cause of the
subsequent adultery.

• Condonation
(fi) This is the forgiveness of a marital offence and reconciliation
between the parties with full knowledge of all the material
circumstances. Under Section 10(3) adultery shall not be
deemed to have been condoned unless and until conjugal
cohabitation shall have resumed.

(fj) In Henderson v. Henderson the court stated that where the

wife had committed adultery, the essence of condonation is
that the husband with the knowledge of the wife’s offence
should forgive her and should confirm his forgiveness by
reinstating her as his wife. The issue is whether this re-
instatement included sexual intercourse or conjugal
cohabitation as provided for under Section 10 (3) and in this
particular case at the time the matter was in court, such
intercourse had not taken place.

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(fk) In Cramp v. Cramp (1920) P. 158 the decision in this case was
that a husband who has sexual intercourse with his wife after
knowledge of her adultery must be conclusively presumed to
have condoned the offence. Mere forgiveness does not amount
to condonation.

(fl) For condonation to exist the forgiveness must be followed by

cohabitation and the restoring of the offending party to their
former position as husband or wife. In Crocker v. Crocker
(1921) P. 25, a soldier who was serving overseas during the war
wrote to his wife offering to forgive her for having committed
adultery when he was away. The wife accepted the offer but on
his return home he changed his mind and petitioned for
divorce. It was held that there was no condonation because
there was no reinstatement.

(fm) Commission of a further marital offence will revive condoned

adultery or cruelty. That is where the respondent has
committed adultery and cruelty which is condoned by the
petitioner if the respondent commits another offence then the
condoned offence will revive and the petitioner will be entitled
to a divorce on the ground of the condoned act (Beard v.
Beard (1945) 2 All ER and Bertram v. Bertram (1944) P. 59).

• Collusion
(fn) This is the presenting of a divorce petition by way of a bargain
or agreement between the parties. The reason why this is a bar
to divorce is that true facts will be hidden from the court and in
some case marital offence will be procured or pretended for the
purposes of securing a divorce. Churchward v. Churchward
the petitioner declined to divorce his wife who wanted to marry
the co-respondent until she had made a settlement in favour of
the children of the marriage and she agreed to do so since she

98
 wanted to be released from the marriage, deposited some
amount and the petitioner then filed his petition. It was held
that this amounted to collusion.

1. Discretionary Bars
• Unreasonable Delay
(fo) Delay that is unexplained may be fatal to a petitioner’s relief
and in Johnson v. Johnson (1903) it was stated that the
reason why courts insist on steps being taken promptly are that
it is a terrible thing that people should go around and about
neither married nor unmarried possibly liable to contract fresh
and illegal matrimony and certainly exposed to the temptation
to commit adultery. The court is saying that once a marital
offence has been committed then parties are in a state of
limbo, they do not discharge their usual marital obligations and
the temptation to commit adultery is there and that is why the
court wants them to take steps promptly. In this case the fact
that the respondent wife had become insane and had been in
an asylum for many years and that the husband had been
expecting release by her death was held to be a sufficient
answer to a plea of unreasonable delay. In this case the wife
just simply refused to die.

(fp) In Binney v. Binney the husband took no steps for divorce

until his wife had been living with another man for 20 years and
even so only petitioned for the purpose of freeing himself to
marry another woman. It was held that there had been culpable
delay and the petition was dismissed.

• Conducing Conduct
(fq) This is conduct which conduces the commission of a marital
offence. Therefore cruelty, neglect, desertion or other
misconduct towards a spouse who afterwards as a result

99
 commits a marital offence may bar the petitioner from
obtaining a divorce. Lander v. Lander (1890) and Dixon v.
Dixon (1952) classical decision where the wife refused to agree
to intercourse until husband filed for divorce and it was held
that the wife was guilty of conducing conduct.

• Petitioner’s own Adultery

(fr) This receives some special treatment because in most cases
the petitioner’s own adultery is a consequence of the
respondent’s conduct therefore the courts will look at the
circumstances to gauge whether that adultery will bar the
petitioner’s petition.

(fs) In Blunt v. Blunt the court laid down the considerations that
will be taken into account in exercising its discretion when a
petitioner is guilty of adultery as follows:

(a) The position and interest of any children of the marriage;

(b) The question whether if the marriage is not dissolved there

is a prospect of reconciliation between husband and wife;

(c) The interest of the petitioner and in particular the interests

that the petitioner should be able to remarry and live
respectably;

(d) The interests of the party with whom the petitioner has been
guilty of misconduct with special regard to the prospects of
future marriage;

(e) The interests of the community at large to be judged by

maintaining a balance between the sanctity of marriage and
maintenance of a union which has utterly broken down.

(ft) See also s. 28 of the Matrimonial Causes rules:

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(fu) Under Section 15 of the MCA every decree for divorce is in the
first instance a decree nisi which is not to be made absolute
until after the expiration of six months after the pronouncement
of the decree. However an application can be made to expedite
the decree absolute within a shorter time when reasonable
grounds are shown, for example, where it is shown that a child
will be born illegitimate or for purposes of making financial
provisions for children of the marriage.

(fv) The main reason why we have an intervening period of 6

months is to enable unsuccessful respondents to appeal against
the granting of the decree nisi or for any other person to
intervene to show cause as to why the decree should not be
made absolute.

(fw) As soon as the decree nisi is made absolute either spouse is

then free to remarry which is not the case under the decree nisi
and under Section 16 of MCA if a party remarries before a
decree nisi is made absolute, then that marriage will be void.

a. Divorce under Hindu Law

(fx) Divorce under Hindu law was previously provided for under the
Matrimonial Causes Act. Section 10 of the Hindu Marriage and
Divorce Act contained the following grounds for divorce:

1. Adultery;

2. Cruelty;

3. Desertion for a period of 3 years;

4. Unsoundness of mind where the Respondent has been under

medical care for a period of five years;

5. Where husband is guilty of bestiality sodomy or rape;

6. Where the Respondent has ceased to be a Hindu;

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7. Where the Respondent joins a religious order which requires
him/her to renounce the world and remains in that position for
a period of at least 3 years. Monasteries, Hermits and so on;

8. Where there is a decree of judicial separation and the decree

has been in force for a period of 2 years and the parties have
not resumed cohabitation.

9. Where the husband is married to another woman at the time of

celebration of the marriage. This can be both for a nullity of a
marriage and divorce as well.

(fy) Now, the grounds are found in s 70 of the Marriage Act. A party
to a marriage celebrated under Hindu law may petition the
court for the dissolution of the marriage on the ground that:

(a) The marriage has irretrievably broken down;

(b) The other party has deserted the petitioner for at least three years
before the making of the petition;

(c) The other party has converted to another religion;

(d) Since the celebration of the marriage, the other party has
committed rape, sodomy, bestiality or adultery;

(e) The other party has committed cruelty on the other; and

(f) The other party has committed exceptional depravity on the other.

a. Divorce under Islamic Law

(fz) Section 71 of the Marriage Act provides that the dissolution of
marriage celebrated under Islamic law shall be governed by
Islamic law.

(ga) It is thus notable that there are two forms of divorce under
Islamic Law:

a) Extra Judicial Divorces

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b) Judicial Divorces.

i. Extra Judicial Divorce

(gb) There has been misconception about this form of divorce with
some people feeling that it is very easy to divorce extra
judicially under Islamic Law. However, under Islamic Law
divorce is discouraged and will only be allowed if the conditions
are grave and weighty and even so divorce will be the last
resort and reconciliation between the parties is encouraged.
This reconciliation is provided for and where the conflict
originates from the wife, her husband has the right to judge
her, consider the wrong she has committed and make a
decision. The husband is also supposed to guide her and show
her that what she has done is wrong, and that she should not
repeat it. If she repeats her actions, he may then resort to
disciplinary action which is in 3 phases,

a) He may start by kind exhortations or reprimands where he

denies her a few necessities;

b) He may then withdraw from the matrimonial bed however this

should be of a temporary nature; and if this fails

c) He may undertake some symbolic beating but this should not

be severe. At this stage he has the right to abstain from sex
until the wife reforms.

(gc) When in conflict from the husband, the wife has to try and
make peace with the husband and try to settle their
differences. If all these fail two arbitrators from both sides are
appointed to review the situation and to try and settle the
dispute. It is only after this that the parties can then resort to
divorce if the arbitration fails.

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 (gd) There are a number of extra judicial divorces that the parties
can undertake:

1. Talak
(ge) Is dissolution of the marriage by the unilateral acts of the
husband; there are certain conditions to be fulfilled in order to
make this divorce complete and valid:

(i) The husband must be of age;

(ii) He must be seen conscious alert and should not be angry;

(iii) He should not be intoxicated;

(iv) He should be free from external pressures;

(v) His intention to terminate the marriage must be clear.

(gf) On the part of the wife:

(i) She should be of age;

(ii) Must be in a healthy state of mind;

(iii) Must be in a state of purity by which is meant that she

should not have had any sexual relations with her husband and
should not be menstruating.

(gg) If these conditions are met, the husband may then pronounce
the first talak, either in written or oral form and by talak he
merely says I divorce thee’. He may revoke this
pronouncement, forgive his wife and they may resume conjugal
cohabitation. If however 40 days have passed and the husband
has not revoked his pronouncement and the conditions the he
stated still applied, he may then pronounce the second talak,
he still has the option of revoking this pronouncement but if he
does not and 40 days elapse and the conditions remaining
constant he may then pronounce the 3 rd talak. The effect of the

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 3rd talak is to make the divorce complete and valid and the wife
has the option of remarrying. All the time that the talaks are
being pronounced she is still in the matrimonial home.

(gh) Before the wife remarries she has to wait for the period of 4
months or Iddat period and she cannot remarry her ex-husband
until she has been married by another man or divorced or
widowed. This condition is there so as to ensure that the
husbands do not divorce their wives recklessly.

1. Ila Divorce
(gi) This is a form of constructive divorce which is effected by
abstinence from sexual relations for a period of not less than 4
months. If reconciliation is impossible then the marriage is
dissolved.

1. Zihar
(gj) This divorce arises where the husband continuously compares
his wife with another female or his mother and the wife may
refuse to have any sexual intercourse with him unless he
changes and if this fails the marriage is deemed to have been
dissolved.

1. Lian Divorce
(gk) This is where a husband suspects that his wife is committing
adultery but does not have any evidence. He then testifies or
swears that he is telling the truth and he does so four times and
on the fifth times he swears that he be cursed if he is lying. The
wife on the other hand swears four times that she is telling the
truth and the fifth time that she be cursed if she is lying and
after this the marriage is dissolved.

1. Khula

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 (gl) Is initiated by the wife if she feels that she is unhappy with the
marriage, she then returns the mahar to the husband and any
other marriage gifts that he had given her and the divorce will
only be valid where the husband grants her the divorce
although he may waive the need for her to return the
compensation.

1. Mubarat
(gm) Divorce by mutual agreement where both parties desire the
divorce. It can be initiated by either party and the wife loses
any right she had to her dowry but the husband remains liable
to maintain the children.

1. Apostasy
(gn) Where either spouse abandons the Islamic religion

i. Judicial Divorces
(go) Matrimonial causes arising out of Muslim marriage can be heard
either by the Kadhi's Court Act, resulting to divorce, marriage
and inheritance and where at least one of the parties professes
the Muslim religion. Muslim divorces can also be heard by the
High court because the High Court is a court of unrestricted
jurisdiction.

(gp) According to Muslim scholars, grounds for divorce include:

(i) Desertion by the husband for a period of 5 years;

(ii) Failure of the husband to provide maintenance for a period of two

years;

(iii) Imprisonment of the husband for a period of 7 years.

(iv) Failure of either spouse to perform marital obligations.

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(v) Where the husband is either insane, cruel, impotent, suffering
from leprosy or a venereal disease or where he is captured by war
enemies.

(vi) In cases of extreme or severe poverty.

(gq) When the divorce has been pronounced, both spouses are
required to register the divorce. Under s 72 of the Marriage Act,
where a Kadhi, sheikh, imam or person authorised by the
Registrar grants a decree for the dissolution of a marriage
celebrated under Islamic law, the Kadhi, sheikh, imam, Mukhi or
authorised person shall deliver a copy of the decree to the
Registrar.

a. Divorces under Customary Law

(gr) Traditionally, divorce under Customary law could be both
judicial or extra judicial and just like Islamic Law before the
parties are divorced there is a reconciliation process whereby
the elders seek to reconcile the parties. It is only after
reconciliation has failed that the elders may dissolve the
marriage.

(gs) It is notable that not all Kenyan communities practiced divorce.

There are however some communities that did recognise
divorce, for example the Kuria community to a certain extent
the Kisii community as well.

i. Extra Judicial Divorce

(gt) This could be initiated by the Husband or the wife or even by
the wife’s family. The husband initiated it by chasing away his
wife by telling her to return to her parent’s home. He was also
required to inform her parents that he intended to be separated
or divorced from their daughter.

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 (gu) The wife could also initiate divorce by voluntarily leaving her
husband’s home and returning to her parents; while the wife’s
family could also initiate divorce especially where the husband
had refused to pay the full bride price. They would go and get
their daughter from her home.

(gv) Under customary law, return of the bride prices symbolised a

valid divorce but this will depended on whether there were any
children of that marriage. If the husband retained custody of
the children no refund of the bride price was due. Where the
mother sought to retain custody of the children, then the bride
price returned would depend on the number and gender of the
children.

(gw) Where the wife initiated the divorce, the full bride price was
due. And among some communities where the husband had
initiated the divorce and the wife remarried, then her new
husband refunded him the bride price.

(gx) In order for the elders to dissolve a marriage, they had to be

satisfied that certain factors had taken place which were
sufficient enough for a party to seek divorce. This included:

(i) Refusal to have sexual relations for no good reasons;

(ii) Witchcraft;

(iii) Wilful desertion;

(iv) Habitual theft;

(v) Incest;

(vi) Excessive physical cruelty;

(vii) Failure of the husband to maintain his wife and children

(viii)Adultery on the part of the wife

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(ix) Impotence on the part of the husband although some communities
allow an impotent man to allow his close relatives or friends to
have sexual relations with his wife (barrenness of the wife is not a
ground for divorce this is because African Customary Law allows
for polygamy)

i. Judicial Divorces
(gy) Prior to the Marriage Act of 2014, jurisdiction arising out of
marriage contracted under customary law was vested in
Magistrate's Courts under s. 2 of the Magistrates Courts Act.
Again the High Court also had jurisdiction on matters rising out
of customary law. A Family Court Division was created in the
High Court which deals with matters relating to divorce and
marriage.

(gz) Some of the divorce cases arising under customary law are
found in cotran’s book. In Leonita Salume v. Captan
Nyongesa, it was claimed that the husband had failed to
maintain the wife and the children. In Isaiya Bedi v. Ether
Munyasia, the claim was the wife’s cruelty. The husband
brought evidence to show that the wife had arranged for
members of the public to give him a thorough beating and on
top of that she had borne a child with another man, in Okutoyi
v. Nyongesa, it was the issue of habitual theft of chicken. The
wife stated that in addition to the husband being cruel every
time he came home with chicken which had been unlawfully
obtained.

(ha) Now, section 69 of the Marriage Act provides the following

grounds for divorce under customary law:

(a) Adultery;

(b) cruelty;

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 (c) Desertion;

(d)Exceptional depravity;

(e) Irretrievable breakdown of the marriage; or

(f) Any valid ground under the customary law of the petitioner.

a. Jurisdiction of Courts in Divorces

(hb) Prior to the Marriage Act of 2014, the Matrimonial Causes Act
applied to all statutory marriages including Hindu marriage.
Under the Marriage Act, the African Christian Marriage and
Divorce Act, and the Hindu Marriage and Divorce Act, divorce
jurisdiction was vested in the High Court (s.3 of the Matrimonial
Causes Act, ss. 16, 17, 18 and 22 of the Marriage Act and s32 of
the Hindu Marriage and Divorce Act). Under African and
Christian Marriages and Divorce Act, s. 14, conferred the
jurisdiction to the Magistrates’ courts. Likewise jurisdiction for
causes arising from the Separation and Maintenance Act was
vested in the Magistrate's Courts under s 2 of that Act. These
laws have now been repealed by the Marriage Act.

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10. Matrimonial Causes III: Separation,
Prohibition of Molestation, Restitution of
Conjugal Rights and Ancillary Reliefs
a. Introduction
(hc) Even before the breakdown of a marriage, there are certain
problems that may arise. Parties may want to separate without
divorcing; spouses may be deserted and may want resumption
of cohabitation; or they may even seek orders against
molestation.

(hd) Moreover, at the breakdown of a marriage, disputes concerning

finance, property of the spouses and in respect of children will
also arise, the parties to a divorce or annulment proceedings
may also seek ancillary relief. This and the next part will
address these issues.

a. Separation
(he) Section 66 deals with separation for couples married under the
system of civil marriage. One cannot petition for separation
unless he or she has been married for at least 3 years. The
ground for separation are similar to those for divorce.

a. Order Prohibiting Molestation

(hf) Section 84 provides that the court may order a party to refrain
from molesting a spouse or former spouse.

a. Restitution of Conjugal Rights

(hg) Section 84 also deals with the restitution of conjugal rights.

(hh) Where either the husband or wife has, without reasonable

grounds, withdrawn from the society of the other, the

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 aggrieved party may make an application to the court for
restitution of conjugal rights and the court, on being satisfied of
the truth of the statements made in such application and there
being no legal ground why the application should not be
granted, may order restitution of conjugal rights accordingly.

(hi) No proceedings may however be brought to compel one spouse

to cohabit with the other, but a spouse who alleges that he or
she has been deserted may refer the matter to a conciliatory
body.

a. Maintenance
i. Law Prior to the Marriage Act of 2014
(hj) Maintenance was provided for in section 25, 26 and 30 of the
(repealed) Matrimonial Causes Act. Section 25 of that Act
stated that:

(hk) On a petition for divorce, nullity of marriage or judicial separation, the

court may make an order for maintenance pending suit i.e. an order
requiring either party to the marriage to make to the other such
periodical payments for his or her maintenance and for such terms
beginning not earlier than the date of the presentation of the petition
and ending with the date of the determination of the suit.
(hl) Section 26 provided that where a husband had been guilty of
wilful neglect to provide reasonable maintenance for his wife or
the infant children of the marriage, the court could make an
order for periodical payments; while Section 30 made
provision for the custody and maintenance of children stating
that:

(hm) In any proceedings for divorce or nullity of marriage or judicial

separation, the court may from time to time either before or after the
final decree make such provisions as appears just with respect to the
custody, maintenance and education of the children and which may
be varied by the court, under Section 32, by altering the kinds of
payment or by increasing or diminishing the amount as the court
thinks fit.
i. Maintenance under the Marriage Act 2014
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 (hn) Maintenance under the Act can be ordered against either the
husband or the wife. The court may also order the payment of
maintenance to a spouse or former spouse where a decree of
separation, divorce or presumption of death is issued by a
foreign court (s 77(2)).

(ho) Under section 81, maintenance payable to a person under an

order of the court shall not be assigned or transferred or liable
to be attached, sequestrated or levied upon for, or in respect
of, any debt or claim.

1. Grounds for Order for Maintenance

(hp) Section 77 provides that the court may order a person to pay
maintenance to a spouse or a former spouse:

(a) If the person has refused or neglected to provide for the spouse
or former spouse as required by this Act;

(b) If the person has deserted the other spouse or former spouse, for
as long as the desertion continues;

(c) During the course of any matrimonial proceedings;

(d) When granting or after granting a decree of separation or

divorce; or

(e) If, after making a decree of presumption of death, the spouse or

former is found to be alive.

1. Duration of Maintenance
(hq) This is found in section 78 and 79 of the Marriage Act. The
order for maintenance of a spouse may be expressed to be for
any period provided and such order may be revoked by the
court. If the period is unspecified, an order shall lapse:

(a) If the maintenance was unsecured, on the death of the spouse;

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(b) If the maintenance was secured, on the death of the spouse in
whose favour it was made; or

(c) Where the person being maintained is subsequently able to

support himself or herself.

(d) Upon the re-marriage of the beneficiary of the order.

1. Revocation and Variation of a Maintenance

Order
(hr) Under section 80, the court may revoke or vary a subsisting
order for maintenance of any kind, whether secured or
unsecured, if it is satisfied that the order was based or obtained
as the result of any misrepresentation or mistake of fact or that
there has been a material change of circumstances since the
order was made.

(hs) The court may vary the terms of an agreement as to

maintenance between spouses wherever made if satisfied that
there has been a material change of circumstances since the
agreement was made despite any provision to the contrary
contained therein.

1. Limitation Period for Maintenance Claims

(ht) Section 82 provides that despite any other period of limitation
prescribed by the Limitation of Actions Act, no instalment of
maintenance shall be recoverable in proceedings instituted
after a period of three years from the date upon which the
instalment accrued.

1. Recovery of Maintenance
(hu) Arrears of unsecured maintenance, whether payable by
agreement under an order of the court is a civil debt
recoverable summarily or, where they accrued due before the
making of a receiving order against the party in default, are

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 provable in subsequent bankruptcy proceedings. Where they
accrued before death, shall be a debt from the estate of the
deceased.

(hv) Arrears of unsecured maintenance which accrued before the

death of the person entitled shall is a civil debt recoverable
summarily by the legal personal representative of that person.

1. Compounding of Maintenance
(hw) Under s 83, if the court is satisfied that a disposition of property
has been made or is intended to be made by the spouse or
former spouse with the object of reducing the means to pay
maintenance or of depriving a spouse of any rights in relation
to that property, it may set aside the disposition or grant an
injunction prohibiting that disposition. The application must be
made to the court within 3 years.

(hx) This does not affect the right of a bona fide purchaser for value.

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11. Matrimonial Causes III: Matrimonial
Property Rights
(hy) There are two systems which obtain on matrimonial property
rights in law:

a) Community of property; and

b) Separate ownership approach.

a. Community of Property
(hz) This is based on the assumption that marriage is an equal
partnership which has a social as well as an economic
dimension and that system recognises that each party to the
marriage performs an important role in that social and
economic unit even though their roles may be far in type or in
quality. This system assumes equality in matrimonial property
with each party having an equal right to the assets of the
marriage. In a pure community of interest system, legal
ownership of the matrimonial asset is joint from the time of
cohabitation or marriage. Therefore under the pure community
of interest approach at the celebration of the marriage all the
properties that are owned by either spouse are pooled together
and deemed to be jointly owned and this will include any
property that was owned before the marriage by the spouses.

(ia) In some legal systems you have a deferred community of

property approach and the joint ownership of property is
deferred until the relationship breakdown. Therefore under this
approach during the currency of the marriage either spouse
may own their own property and use it in any manner that they
wish or dispose of it but in the event of the marriage

116
 breakdown all the property they own is then put together and
deemed to be joint property.

(ib) In the community of property system in the event of the

marriage breaking down entitlement to that property is
regarded as an incident of marriage , it is regarded as one of
those facts arising out of the marriage itself and that property
is then divided equally between the spouses.

(ic) This system is common in civil law countries; it is also practised

in South African countries like Lesotho and Botswana while the
Deferred Community property system is common in
Scandinavian Countries.

a. The Separate Ownership Approach

(id) This approach presupposes that during the subsistence of the
marriage, either spouse may own separate property. However
this has not always been the case in the common law tradition
and in fact under common law husband and wife were regarded
as one (doctrine of unity under common law).

(ie) According to Lord Denning the common law regarded husband

and wife as one and the husband was that one. This was in a
case of William & Glyns Bank v. Boland (1979) Ch. D 312 at
332. Under common law all the wife’s property and income
vested in the husband on marriage and a wife could not own
property separate from that of her husband.

(if) In the 18th and 19th century England it was common to have
professional husbands and in Republic v. Smith (1915) 1 Cr. a
case involving professional husband. Husbands married rich
women who then died under mysterious circumstances leaving
them all the wealth.

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(ig) With the onset of the industrial revolution, women started to
agitate for involvement in socially and economically productive
work and sought enfranchisement and the solution to the
problem that commended itself was that of separation of
property because the problems in their legal status at the time
arose from the legal regime that applied to married persons. It
was therefore thought that if the spouses’ marital status no
longer affected their property rights then the problem would be
solved. This led to the enactment of the Married Women
Property’s Act of 1882. This Act recognised the right of married
women to hold and own property separate from that of their
husbands. This is one of the Acts of general application which
applies to Kenya under the Judicature Act.

(ih) However, the paradox was that this system of separate

ownership which was created to protect married women’s rights
became a serious injustice especially when determining
matrimonial property rights during marriage breakdown. At the
system of separation failed to deal adequately with the
economic realities of married life and this is because this
system insists that entitlement to matrimonial property be
based on evidence of contribution to the acquisition of that
property. Given the different roles of husband and wife in
married life, it meant that especially women’s or wives roles
were not legally recognised i.e. their roles in contributing to
acquisition of matrimonial property. It therefore had the fatal
disadvantage of not giving recognition to a wife’s contribution
by way of her services in the home as opposed to those of the
husband as the bread winner.

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(ii) Basically this is because contribution that was required to be
shown had to be direct or financial contribution and not indirect
contribution.

a. How Courts Have Responded to Matrimonial

Property Issue: Comparison between
England and Kenya
(ij) Prior to the Matrimonial Properties Act 2013, there were two
main ways that courts used in settling disputes arising out of
matrimonial properties:

(i) Married Women’s Property Act;

(ii) Presuming certain equitable interests in the matrimonial

property.

i. Married Women’s Property Act

1. The English Approach
(ik) Section 17 of the MWPA provided that in any question between
husband and wife as to the title to or possession of property
either party could apply for an order from the court and the
Judge could make such order with respect to the property in
dispute as he thought fit.

(il) It was at one time thought that the power given to a judge
under this section to make such orders as he thought fit
provided statutory justification for doing what was thought to
be just between the parties without having regard to the
technicalities of property law. Indeed, before 1965, courts
would rely on section 17 to vary property rights in matrimonial
property. In National Provincial Bank v. Ainsworth, in 1965,
however, the House of Lords decided that Section 17 only
provided a summary procedure for determining proprietary

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 rights between spouses but did not confer upon the courts
power to vary those rights.

(im) In the Ainsworth case, the husband had deserted the wife. It
was conceded that she had a right to be provided with housing
by her husband under what was known as the deserted wife’s
equity. It was also conceded that she could have obtained an
injunction from the court to stop the husband from interfering
with her rights to housing. However, the husband had
mortgaged the house without her knowledge and he
subsequently became insolvent. The House of Lords held that
her right to housing was not a proprietary right within the
meaning of section 17 and therefore was incapable of binding
the bank to whom the house had been mortgaged. In other
words the wife was relying on section 17 to fight the bank
interest in the house but it was held that her rights could not
qualify.

(in) This was followed in later cases such as Gissing v. Gissing,

Pettit v Pettit, Falconer v. Falconer, and Heseltine v. Heseltine.
In Pettit v Pettit the wife purchased the matrimonial home
and it was registered in her name alone. During the cause of
the marriage the husband during his free time undertook to
decorate the home and due to these decorations the value of
the house increased. On the marriage breakdown the husband
claimed an interest in that property under Section 17 of the
MWPA. The court held that despite the fact that he had
decorated the house which led to an increase in its value this
did not confer upon him a beneficial interest in that house and
this is because it had no jurisdiction to vary the title of the
House under Section 17. Lord Reid stated as follows:

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(io) The meaning of the Section (17) cannot have altered since it was
passed in 1882. At that time the uncertainty and security of rights in
property were generally regarded as of paramount importance and I
find it incredible that any parliament of that era could have intended
to put a spouse’s property at the hazard of the unfettered discretion
of a Judge if the other spouse raised a dispute about it.
(ip) As a result of this decision, the law in England was changed in
1970 with the enactment of the Matrimonial Property and
Proceedings Act of 1970. Under section 37, it was provided
that where a husband or wife contributed in money or money’s
worth to the improvement of real or personal property in which
either or both of them had a beneficial interest, if the
contribution was of a substantial nature, the husband or wife so
contributing had, to be treated as having then acquired a share
or an enlarged share as the case may be in that beneficial
interest by virtue of his/her contribution.

1. Married Women’s Property Act and the

Kenyan Approach
(iq) It is notable that this section recognised indirect contributions
to the property. However, courts in Kenya still relied on section
17 of the MWPA and upheld the decision Ainsworth that it did
not confer jurisdiction on the court to vary title but only the
power to determine the rights in matrimonial property.

(ir) In response to the inequity caused by this approach, the courts

have given orders as to the way the property issues are dealt
with without necessarily altering the title. In most cases they
ordered that the property be sold and the proceeds of the sales
be divided.

(is) Notable though, the court’s position evolved over time in

response to the changing social and economic realities in
Kenya.

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(it) Section 17 was first substantively discussed in Karanja v.
Karanja where the wife brought an action under section 17
alleging that she had made financial contributions towards the
purchasing of the matrimonial property. The husband on the
other hand maintained that even if that was the case, under
Kikuyu Customary law, a woman was not permitted to own
property and therefore his wife’s claim could not stand.

(iu) The couple had married under the African Christian Marriage
and Divorce Act and throughout the cause of the marriage the
wife made substantial contributions to the running of the
household. She also assisted her husband in paying school fees
for the children and at one time when the husband was away
for 5 years studying abroad she was the one who was running
the home.

(iv) In support of her claim of financial contribution she brought

evidence to show that every month her salary went to her
husband’s account who would then withdraw money for her
personal use. The property in dispute was a farm in Karen
where the matrimonial home was also situated and the wife
claimed that she was a joint owner of this property. The
husband met another woman chased away his wife who was
forced to live in the servants quarter. Although the couple had
other properties the wife claimed that she was entitled to
remain in Karen since she is the one who had developed it. The
court then undertook to determine the amount of financial
contribution that had been made by the wife towards
accumulation of the entire matrimonial property and found that
her contribution amounted to one third of the entire value of
the matrimonial property. The matrimonial property was valued
at 900,000 shillings and she was awarded 300,000 shillings

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 because of her one third financial contributions. The husband
was advised to sell one of his other properties and give the
proceeds to the wife. The court was not varying any existing
title and only determined what her contribution was and then
gives her that contribution.

(iw) In Kivuitu v. Kivuitu, the marriage was statutory and the

husband and wife both made financial and indirect
contributions to the acquisition of the matrimonial home which
was registered in their joint names. On the institution of divorce
proceedings the wife applied that the matrimonial home be sold
and the proceeds be shared out equally. The court held that on
the basis of the wife’s contribution, the parties were entitled to
the property in equal shares and ordered that the property be
independently valued and the husband pays to the wife as sum
equal to half of that valuation. The court is not varying any title
but determining the interests of spouses in the property.

(ix) In these two cases, some issues were not addressed. For
example it did not answer whether section 17 of MWPA applied
to marriages under other systems of family law; and whether
indirect contributions alone could suffice for orders under
Section 17. These issues have been addressed in two later
cases. In Fatia Essa v. Mohamed Alibhai, the marriage was
Islamic. The wife went to court asking for an equal share in the
matrimonial property to which she had contributed. She proved
her financial contribution and the court awarded her 50% of
that property. This is the authority for the position that Section
17 applies to Islamic Marriage. In Tabitha Wangeci Nderitu v.
Nderitu, it was a customary law marriage and the wife’s
contribution was indirect. She was awarded 50% of the
Matrimonial Property.

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(iy) In Muthembwa v. Muthembwa Civil Appeal No. 74 of 2001, it
was held that a spouse who contributed to the increase in the
value of property that was inherited by or gifted to the other
spouse before the marriage, was entitled to a share of the
increased value under Section 17 of the MWPA. One of the
properties was a property that the man had inherited from the
father before they got married. The wife claimed that she had
increased the value of that land by improving it. It was held
that she was entitled to 50% of the value of the improvement
of that property.

i. Presuming Certain Equitable Interests in the

Matrimonial Property
1. The Presumption of a Resulting Trust
(iz) A spouse who provides all or part of the purchase money
towards acquisition of property will be entitled to a share of
that property even if he or she is not the registered owner and
this will be proportionate to the contribution that he or she has
provided. This presumption firstly presupposes financial
contribution and does not hold where there is indirect
contribution; one has to show contribution to the purchase. It is
easier to apply when there is an outright purchase of property.
So when there is purchase or acquisition of property for
example by way of mortgage then it becomes more difficult to
assess the parties’ contribution to that acquisition. However
this particular presumption was applied in Rimmer v. Rimmer
(1953) here the wife was able to show that she paid the deposit
for the matrimonial home and also continued to make marriage
repayments when the husband was away at war and it was held
that she had another equal share on the property even though
it was held in her husband’s name.

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 1. Presumption of Advancement
(ja) Under this presumption, if a husband or wife makes payment
for or puts property in the name of the other spouse, the
equitable rule is that he intends to make advancement to her.
That is that property was intended to be a gift to the other
spouse. This presumption normally arises when there is a
special relationship between the parties, like husband/wife and
parent/child it is intended that transfer of property is a gift.
However both presumptions are rebuttable. One can bring
evidence to show that transfer of beneficial interest was never
intended. However evidence will not be admissible if it involves
an improper or fraudulent motive e.g. if a person registers
property in the spouses name to protect it from creditors, then
one cannot use this evidence to rebut the presumption of
resulting trust or advancement.

(jb) In Sarah Wanjiku Mutiso v. Gideon Mutiso, the Respondent

who was the husband bought a farm through a loan in 1967. In
1971 he was jailed for sedition for a period of 9 and half years.
That left the Appellant who was the wife to look after the family
and to manage the matrimonial property. During the cause of
the jail time, the wife was unable to meet the loan repayments
and she was also unable to secure a loan using her husband’s
property. She then requested the husband to transfer the
property into her name so that she could be able to secure a
loan and the husband reluctantly transferred the property into
her name. The husband was subsequently released from prison
but soon thereafter the appellant left him taking with her or the
moveable property and also claimed that she was the sole
owner of the property which had been transferred to her name.

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 She claimed that the transfer was a gift made to her by her
husband and as such he had no claim to the property.

(jc) It was held that the transfer of the property into her name was
solely for the purpose of enabling the wife to carry out the
husband’s business while he was in jail and this rebutted the
presumption of advancement.

i. Presumption of Constructive Trust: Modern

English Approach
(jd) Certain recent English cases have tended to define matrimonial
property rights by virtue of a resulting trust approach. This is
based largely in the presumed common intention of the parties.

(je) In Oxley v Hiscock [2005] Fam 211, [2004] EWCA Civ 546, an
unmarried couple purchased a house. It was purchased in the
name of the man with contributions from the woman. Mrs Oxley
obtained a reduction in the purchase price of £20,000 under the
'right to buy' legislation. The balance of the purchase price -
£25,000 - was provided by Mr Hiscock. The question was
whether assessing the woman's share she should receive just
the actual amount of her contribution or whether other factors
arising from the relationship should be considered.it was held
that once a contribution had been made, then the court could
imply a common intention or bargain and then go on to
consider this as a constructive trust rather than merely a
resulting trust. As a result the court is entitled to look at other
factors. The woman was awarded a share of 40% whereas the
actual size of her initial contribution was 20%.

(jf) In Stack v Dowden [2007] 2 AC 432, Ms Dowden and Mr Stack

had purchased the house in their joint names using the then
current land registry form, which contained no declaration of
trust but contained a declaration that the survivor could give a
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 good receipt for capital money arising from a disposition of the
property. The purchase was funded by the sale of their previous
property, which had been in Ms Dowden's sole name, plus
savings in Ms Dowden's name, and a mortgage held in both
names. Mr Stack paid the mortgage interest and endowment
policy premiums, while together they paid off the capital, with
Ms Dowden contributing a greater proportion. When they
bought the house, Ms Dowden and Mr Stack had been
cohabiting for 18 years and had four children. Nearly all aspects
of their respective finances had been kept separate. Nine years
after purchasing the house, their relationship broke down. It
was decided that there would be a rebuttable presumption of
equality in residential properties (provided that the requirement
of joint tenancy is met) even when couples contributed
unequally. However, Baroness Hale described the case as most
unusual circumstances. She stated that as the couple had kept
their finances strictly separate during the relationship that this
was indicative that the couple did not intend shares in the
property to be equal. This allowed the defendant to keep a 65%
share against 35% which went to the claimant.

(jg) In Abbott v Abbott [2007] UKPC 53, the couple married in

1983 and, following the birth of their two children, they began
living in a home built on land given to them by the husband's
mother. The building was financed by further gifts from the
mother and a bridging loan, later replaced by a mortgage, in
the husband's name though the wife was made joint and
severally liable for repayments. The loan monies, and perhaps
the mother's gifts, were paid into the joint account. The
mortgage was further secured by insurance policies on both
parties. When the wife resumed working in 1995 her salary was

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 initially paid into the joint account. The husband's mother died
in 1995 so her intentions could not be ascertained when these
proceedings began in 2002 following the couple's divorce. The
husband was now claiming that the land and gifts from his
mother were solely for his benefit. Baroness Hale found that:

(i) The assumption that a gift to a married couple was usually

inferred as for both parties;

(ii) The acceptance of the husband in the court that the wife had a
beneficial interest (though valued at only 8%); and

(iii) The conduct of the parties including the insurance policies and
the use of a joint bank account, all led her to conclude that the
wife was entitled to a 50% interest in the home.

(jh) In Fowler v Barron [2008] EWCA Civ 377, the couple had
moved to the property in question in 1988 after the birth of
their son and it was purchased in joint names but it was also
common ground that the respondent paid the deposit and the
balance out of the sale of his flat; a mortgage of £35,000 in
joint names was taken out on the property which was paid out
of the respondent's pension, who also paid direct fixed costs;
and the parties never had a joint bank account. At the original
hearing the respondent argued that the property would only go
to his partner if she survived his death and mutual wills leaving
the property to the other supported this argument. The judge
accepted this argument and found that there was a resulting
trust which could be valued by the respective contributions of
the parties; he found that the appellant had not made any such
contributions and so the claim for beneficial interest must fail.
On appeal, it was held by Arden LJ that the judge erred in that
he applied the test for a resulting trust rather than a common

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 intention constructive trust as is required following the decision
in Stack v. Dowden. Accordingly, as the tenancy was in joint
names, there was an onus on the respondent to rebut the
presumption of shared beneficial ownership, which in this case
he failed to do. Therefore, the appellant had a 50% share in the
property regardless of her lack of quantifiable contribution.

(ji) From these cases, the following summary may be drawn about
the modern English approach.

(i) There is a presumption of trust arising out of coexistence of

spouses and partners;

(ii) It is based on the common intention of the parties;

(iii) The sharing is normally 50-50 on account of a constructive trust

since it is presumed that the parties aimed to own the property
jointly;

(iv) But the way the parties have put their affair will determine how
the court will conclude. If it is clear that the parties had separate
arrangements, then their exact contribution will be considered in
dividing the property.

a. The New Law: Matrimonial Property Act,

2013
(jj) With the enactment of Act, the Married Women Property Act,
1882 is no longer applicable to matrimonial causes Kenya. This
Act was accented to on 24th December, 2013 and commenced
operation on 16th January, 2014. It seeks to provide for the
rights and responsibilities of spouses in relation to matrimonial
property.

(jk) Under Section 17, a person may apply to a court for a

declaration of rights to any contested matrimonial property in

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 accordance with prescribed procedure as part of a petition in a
matrimonial cause; and even where a petition has not been
filed under any law relating to matrimonial causes.

(jl) The Act which takes into account non-monetary contribution to

the acquisition of matrimonial property and renders the five
bench Court of Appeal decision in Court of Appeal decision in
Echaria v Echaria, bad law. Section 2 defines “contribution” to
mean monetary and non-monetary contribution including
domestic work and management of the matrimonial home;
child care companionship management of family business or
property.

(jm) Matrimonial property is defined as either the matrimonial

home; household goods and effects in the matrimonial home;
any movable or immovable property jointly owned and acquired
during the marriage; trust property. However, property held in
trust under customary law, does not form part of matrimonial
property.

(jn) Under the Act, people who profess Islamic faith have the option
of Islamic law in all matters relating to matrimonial property.

i. Key Provisions of the Act

1. Equal Status of Spouses (Section 4)
(jo) A married women has the same rights as a married man to
acquire, administer, hold, control, use and dispose of property
whether movable or immovable; to enter into a contract; and to
sue and be sued in her own name.

1. Rights and Liabilities of Individuals (Section

5)
(jp) Property acquired or inherited before marriage is not part of
matrimonial property

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 1. Prenuptial Agreements (Section 6(4))
(jq) Parties to an intended marriage may enter into a prenuptial
agreement to determine their property rights. Courts may
however set prenuptial agreement aside on the grounds of
fraud, coercion or manifest injustice.

1. Ownership of Matrimonial Property (Section

7)
(jr) Where there is no prenuptial agreement, matrimonial property
vests in the spouses according to the contribution of either
spouse towards its acquisition, and shall be divided (not
equally) between the spouses.

1. Property Rights in Polygamous Marriages

(Section 8)
(js) If the parties in a polygamous marriage divorce or a
polygamous marriage is otherwise dissolved, matrimonial
property acquired by the man and the first wife, before the man
married another wife, shall be retained equally by the man and
the first wife only; matrimonial property acquired by the man
after the man marries another wife shall be regarded as owned
by the man and the wives taking into account any contributions
made by the parties; it is possible for a wife to hold her
matrimonial property with the husband separate from that of
the other wives; any wife can own matrimonial property equally
with the husband without the participation of the other wife or
wives.

1. Acquisition of Interest by Contribution

(Section 9)
(jt) A spouse who makes a contribution towards the improvement
of a non-matrimonial property, acquires a beneficial interest in
the property equal to the contribution made.

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 1. Spousal Liabilities (Section 10)
(ju) Any liability incurred by a spouse before the marriage remains
the liability of the spouse who incurred it.

(jv) Parties to a marriage share liabilities incurred during the

marriage for the benefit of the marriage equally. If property
becomes matrimonial property, any liability reasonably and
justifiably incurred are shared equally by the spouses unless
they otherwise agree. Parties to a marriage equally share
liabilities or reasonable and justifiable expenses incurred for the
benefit of the marriage.

1. Customary Law (Section 11)

(jw) Customary law principles, subject to the Constitution, may be
considered in division of matrimonial property.

(jx) The principles of customary law applicable to division of

matrimonial property include: customary laws relating to
divorce or dissolution of marriage; protection of rights of future
generations to community and ancestral land (See Article 63 of
the Constitution); access and utilization of ancestral land and
the cultural home by a wife or former wife.

1. Special Provisions on Matrimonial Property

(Section 12)
(jy) Matrimonial property cannot be sold, leased or mortgaged
during a monogamous marriage without the consent of both
spouses (See section 12(1)).

(jz) Spouses in marriages, including the man and any of the man’s
wives in the case of a polygamous marriage, have an interest in
matrimonial property capable of protection by caveat, caution
or any law in force on registration of title deeds.

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(ka) A spouse shall not, during the subsistence of the marriage, be
evicted from the matrimonial home by or at the instance of the
other spouse except by order of a court.

(kb) A spouse shall not be evicted from the matrimonial home by

any person except: in execution of a decree; by a trustee in
bankruptcy; or by a mortgagee or chargee in exercise of a
power of sale or other remedy.

(kc) The matrimonial home shall not be mortgaged or leased

without the written and informed consent of both spouses.

(kd) Section 12(1) would imply that spousal consent in disposing of

matrimonial property is only required in monogamous
marriages. The position as to spouses in polygamous marriages
including those living in the matrimonial home or those who co-
own the home seems unclear and inconsistent with the
provisions of the Land Registration Act, Cap 300.

(ke) It is instructive to note that, vide section 5, the Land

Registration Act (Cap 300) prevails over practices or procedure
relating to land in any cases of inconsistency. Predictably,
section 12(1) the Court might soon be called upon to resolve
the ambiguity.

1. Separate Property (Section 13)

(kf) Marriage does not affect the right of either spouse to own, or
dispose of any property other than matrimonial property.

1. Presumptions as To Property Acquired

During Marriage (Section 14)
(kg) Where matrimonial property is acquired during marriage: in the
name of one spouse, there is a presumption that the property is
held in trust for the other spouse; and in the names of the

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 spouses jointly, there’s a presumption that their beneficial
interests in the matrimonial property are equal.

1. Gifts to a Spouse (Section 15)

(kh) Where a spouse gives any property to the other as a gift during
the marriage, there’s a presumption the gift belongs absolutely
to the receiving spouse.

1. Liability for Previous Debts (Section 16)

(ki) A spouse is not liable, solely by reason of marriage, for personal
debts incurred before the marriage by the other spouses.

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12. Children
a. Introduction
(kj) The legal provisions affecting children are contained principally
in the Constitution 2010, Children Act 2001, and the Marriage
Act of 2014 which cover the relationship between parents and
children, the responsibility of the courts in making decisions,
which affect children and the rules relating to the maintenance
of children.

a. Common Law Approach to the Issue of

Children and Subsequent Modifications
(kk) Under common Law a parent was under an obligation to take
care of his child during marriage and this obligation was only on
the part of the father. In the event of marriage break-down the
father always had a right to custody unless he forfeited it
through immoral or cruel conduct. This was so stated in Re
Agar Ellis [1883] 24 Ch. D 317.

(kl) The position under common law was changed by statutes which
have watered down the exclusive rights of fathers over
children. One finds that common law started from a position of
paternal preference when it came to rights and responsibilities
over children. The factors which weakened this paternal
preference included an increased focus in children’s welfare as
the primary consideration and also with the effects of the
industrial revolution fathers increasingly sought work outside
the home while the mothers remained at home as the primary
caretakers. The resultant division of family responsibilities

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 influenced custody decision and the paternal preference was
gradually replaced by a maternal preference.

(km) This maternal preference was based on the tender-years

doctrine which was intended to apply to children under the age
of six years and was invoked to give mothers custody of
children of tender years. The assumption here was that in the
interest of the welfare of children mothers were better suited to
nurture and raise children of tender years.

(kn) This particular maternal preference also obtained in Kenya for a

while and this was under the Guardianship of Infants Act which
has also been repealed it provided that a court in awarding
custody had to ensure that the child’s welfare was of
paramount consideration and if that child was of tender years,
then custody was given to the mother to protect the child’s
welfare. This position is found in Karanu v. Karanu and
Githunguri v. Githunguri.

(ko) The maternal presumption of custody remained in place for

many years and has only recently been substituted by the
standard of the best interests of the child.

a. Custody and the Best Interests of the Child

(kp) Under this standard, custody decision are now based on
considerations of the child’s needs and interests rather than
based simply on the gender of the parent.

(kq) Under common law parental custodial rights include the power
to control a child’s education, the power to control the
discipline of the child, the power to determine the child’s
religion, the power to control any property belonging to the
child until the child attains majority age, the right to be the
child’s legal representative if a suit is brought against or on

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 behalf of the child and the right to decide on the type of
medical treatment to be given to the child including the right to
consent to such medical treatment. Those were the parental
rights that obtained under Common Law.

(kr) The leading case on custody in common law is J v. C (1970)

A.C. In this case the parents of a child were unable to look after
him and offered him for foster parenthood. After sometime their
financial situation improved and they sought to have the child
returned to them. It was held that in deciding custody of
children certain factors are taken into account in common law.

(ks) Firstly the court has to have regard to the wishes of the natural
parents that is the biological parents,

(kt) Secondly the court stated that where custody is being claimed
by both natural parents i.e. in the event of a divorce then the
court has to consider the conduct of both parents and
determine firstly whether they live an immoral life. Secondly
whether their conduct is cruel and thirdly whether the parents
will have enough time to look after the child. The final
consideration is that the courts in awarding custody prefer that
all children go to one parent and they are hesitant to divide the
children among the parents. Common Law does not encourage
split custody.

(ku) Under Common Law parental custodial rights ceased to exist

once a child has attained the age of discretion which was 18
years for boys and 15 years for girls.

a. Provisions on Custody under Statutory Law

(kv) The main statute is the Children’s Act although we have
provisions in other Acts including the Penal Code which touch
on custody. Under section 85 of the Marriage Act, custody and

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 maintenance of children shall be dealt with in accordance with
the Children Act and any other written law relating to children.

(kw) Previously, the Matrimonial Causes Act in Section 30

empowered the court to make decisions as to custody of
children in divorce proceedings and also as to maintenance and
education of children. Moreover, under Section 3 of the
Subordinate Court and Separation of Maintenance Act a married
woman applying for a separation order can also be given orders
as to legal custody of the children of the marriage. However
these two Acts don’t give details as to how custody is to be
determined. These have now been repealed.

(kx) The Penal Code makes provisions on custody. Section 174

makes it an offence for a person to deprive a parent or
guardian of the custody of the child aged less than 14 years.
This is referred to as child stealing. Previously, it created an
offence arising from interference with custody. Under section
143 (now repealed) it was an offence for anybody to unlawfully
take away an unmarried girl aged below 16 years from the
custody or protection of their parents.

a. The Children’s Act

(ky) The Children’s Act was enacted to consolidate all legislation
that affects children and to give effect to certain international
instruments which Kenya had ratified on the rights of children
i.e. the convention on the rights of the child.

(kz) The Act provides for certain concepts which touch on rights and
duties of parents over children.

(i) Under Section 23, the Act provides for parental responsibility
and it defines parental responsibility to mean all the duties, rights,
powers, responsibilities and authority which by law a parent of a

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 child has in relation to the child and the child’s property. It further
expounds on the duties and rights. On duties it includes the duty
to maintain the child and in particular to provide him with an
adequate diet, shelter, clothing, medical care and education and
guidance. There is also a duty to protect the child from neglect,
discrimination and abuse.

(ii) The rights on the part on the parent include the right to give
parental guidance in religious, moral, social cultural and other
values. The right to determine the name of the child, the right to
appoint a guardian in respect of the child, the right to receive
administer or otherwise deal with the property of the child for the
benefit of and in the best interests of the child. The right to
arrange or restrict the immigration of the child from Kenya. And
upon the death of the child the right to arrange for the burial or
cremation of the child.

(la) Under section 90-101 of Children’s Act, the presumption is that

maintenance of children is the joint responsibility of both
parents. Maintenance orders under the Act can be made
whether or not matrimonial proceedings have been filed.

(lb) Section 94 provides for considerations that the court will take
into account in determining maintenance.

i. Custody under the Children Act

(lc) Insofar as custody is concerned the Act recognises different
types of custody (s 81). These include:

1. Legal Custody
(ld) The custody legal custody is said to mean those rights and
duties in relation to the possession of a child which are
conferred upon a person by a custody order. What legal custody
does is to confer upon a person the right to make major

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 decision about the child’s health, education and welfare. All
these duties and rights are given under legal custody. Insofar
as custody is concerned the Act recognises 3 different types of
custody (s 81).

1. Actual Custody
(le) The Act also recognises actual custody. This means the actual
possession of a child. The person who lives with the child is
considered to have actual custody. It is quite possible under the
Act for one person to have both the legal and actual custody of
a child.

1. Joint Custody
(lf) This is joint physical custody. The Act provides that the actual
physical custody of a child can be shared with one or more
persons whether staying together or separately.

i. Care and Control of a Child and Access and

Resident Orders under the Children Act
1. Care and Control of a Child
(lg) This is in respect of a person who is in actual possession of a
child but who does not have custody over that child. The Act
imposes an obligation on that person who has care and control
to safeguard the interests and welfare of that child.

1. Access and Resident Orders

(lh) In addition to custody the court can make certain orders under
Section 114 the Act.

• Access Orders
(li) An Access Order requires a person with whom a child is residing
to allow the child to visit or to stay periodically with a person
named in the order or to allow such person to have some other
contact with the child. This is what is referred to as visitation

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 rights in other jurisdictions. One proviso in the Act is that an
access order shall not be made in relation to a child in respect
of whom there is already a care order in place.

• Resident Orders
(lj) Care orders are given under Section 132 and what they
basically do is to entrust the care and possession of a child to a
person who is not the parent, guardian or custodian of the child
or to an institution which is appointed by the court. This is
usually for the protection of the child especially for those
children who are in need of care and protection e.g. if they have
been exposed to domestic violence, subject to female genital
mutilation and so forth. Residence orders are given to a person
and shall require the child to reside with that person and also
provide for arrangements to be made to facilitate the residence
of the child with that person. Such an order will impose certain
conditions and define the duration of residence and so forth.

i. Parental Responsibility
(lk) After divorce, the issue of who should assume parental
responsibility where applicable arises. Parental responsibility is
defined by Section 23(1) of the Children Act 2001 as all the
rights, duties, powers, responsibilities and authority which by
law a parent of a child has in relation to the child and his
property.

(ll) A person with parental responsibility is not required to act in a

way that is incompatible with any orders made with reference
to the child.

(lm) Historically, the law gave parents especially the father of the
legitimate child the right to determine all matters relating to
that child. Gradually, statutes introduced the principle that the

141
 welfare of the child was more important than the parental
rights.

(ln) Under the Children Act 2001, Courts may upon the application
of either parent of an infant make such order as it may think fit
regarding the custody of the infant and the right of access
thereto of either parent having regard to the welfare of the
infant.

(lo) Hence, in disputes concerning children particularly after

divorce, generally the issue to be decided by the courts would
be who shall exercise parental responsibility in respect of the
child and where the child shall live on day-to-day basis.

i. Children and the Matrimonial Causes

(lp) In making orders concerning children, the Children Act provides
that every court in dealing with a person under 18 years of age
and in certain exceptions above the age of 18 shall have regard
to his welfare and shall in a proper case take steps for removing
him from undesirable surroundings and for securing that proper
provisions are made for his maintenance, education and
training.

i. Adoption
(lq) This is the legal process by which a person legally becomes the
child of a person(s) who is or are not his natural parent(s).

(lr) The law relating to adoption in Kenya is contained in the

Children Act 2001 which empowers The High court to make
adoption orders in respect of infants if: -

 The applicant and the infant are resident in Kenya;

 The consent of the parent or guardian of the infant has been

obtained (unless the court dispenses with the consent.)

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 The applicant or one of them in the case of a joint application is at
least 21 years older than the infant is unless he is a relative of the
infant.

 The infant has been continuously in the care and possession of the
applicant for at least three consecutive months immediately
preceding the date of the application.

(ls) The effect of an adoption order is to create the legal

relationship of a parent and legitimate child between the
adopter and the adopted child. The adoptive parent takes the
place of the child’s natural parents.

i. Guardianship
1. Definition
(lt) It may be described as the legal relationship between the infant
and a person appointed its guardian under the Children Act
2001. For the purposes of this Act, an infant is any person
under 18 years of age, other than a person who is or has been
married.

(lu) The Act makes the following provisions regarding guardianship:

 On the death of the father of the infant, the mother if surviving

shall be the guardian of the infant either alone or jointly with any
guardian appointed by the father or the court;

 On the death of the mother of an infant, the father if surviving

shall be the guardian of the infant either alone or jointly with any
person appointed by the mother or by the court.

 When an infant has no parents, no guardian and no other person

having parental rights, the court on the application of any person
may appoint the applicant to be the guardian of the infant.

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 Either parent of an infant may by deed or will appoint any person
to be guardian of the infant after his death subject to certain
exceptions. A guardian so appointed shall act jointly with the
surviving parent of the infant so long as that parent remains alive.

1. Rights and Duties of Guardians

(lv) Once a guardian is appointed most of the rights and duties that
a parent has with respect to the infant is vested in him.

(lw) In Matthew v. Brise, Romilley M.R stated,

(lx) The relation of a guardian is strictly that of trustee and cestui qui
trust. I look on it as a peculiar relationship of trusteeship. A guardian is
not only a trustee of the property as in ordinary case of trustee but he is
also the guardian of the person of the infant with many duties to perform
such as to see to his education and maintenance of the property which he
gets into his possession in the character of a guardian. He is therefore a
trustee for the benefit of the infant.

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13. Citizenship, Domicile, and Legitimacy
and Legitimation
1.26. Introduction
This chapter will consider the legal relationship between a person and a
particular state, citizenship, domicile and how they are acquired and the
issue of legitimacy and legitimation.

Citizenship and domicile depend almost exclusively on the state’s

domestic law and generally determines the political status and
allegiance of the person concerned. A person may become a national or
citizen of Kenya under the provisions of the Kenyan Constitution and the
Kenya Citizenship and Immigration Act No. 12 of 2011.

1.27. Citizenship
1.27.1. Entitlement of Citizenship
Article 12 of the Constitution provides for entitlement of citizenship.
Every citizen is entitled to:

(a) The rights, privileges and benefits of citizenship, subject to the

limits provided or permitted by this Constitution; and

(b) A Kenyan passport and any document of registration or

identification issued by the State to citizens.

1.27.2. How to Acquire Nationality

Under article 13 of the Constitution, every person who was a citizen
immediately before the effective date retains the same citizenship
status as of that date.

Citizenship may be acquired by birth or registration.

Citizenship is not lost through marriage or the dissolution of marriage.

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1.27.2.1. Birth
Under article 14, a person is a citizen by birth if on the day of the
person’s birth either the mother or father of the person is a citizen. This
is whether or not the person is born in Kenya.

Citizenship by birth applies even to persons born before the Constitution

was enacted in 2010.

A child found in Kenya who is, or appears to be, less than eight years of
age, and whose nationality and parents are not known, is presumed to
be a citizen by birth.

A person, who is a Kenyan citizen by birth and who, on the effective

date, has ceased to be a Kenyan citizen because the person acquired
citizenship of another country, is entitled on application to regain
Kenyan citizenship.

1.27.2.2. Registration
Article 15(1) provides for acquisition of nationality by registration. This in
the following way:

(i) A person who has been married to a citizen for a period of at

least seven years is entitled on application to be registered as
a citizen;

(ii) A person who has been lawfully resident in Kenya for a

continuous period of at least seven years, and who satisfies the
conditions prescribed by the Kenya Citizenship and
Immigration Act No. 12 of 2011, may apply to be registered as
a citizen;

(iii) A child who is not a citizen, but is adopted by a citizen, is

entitled on application to be registered as a citizen; and

(iv) Citizenship may be granted to individuals who are citizens of

other countries.

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Although the requirements that must be satisfied before the person is
entitled to be registered as a citizen are prospective, they are regarded
as having been satisfied irrespective of whether the person satisfied
them before or after the effective date, or partially before, and partially
after, the effective date.

1.27.2.3. Dual citizenship

Article 16 provides for a situation where a citizen by birth may acquire
another citizenship and still retain his Kenyan nationality. A citizen does
not lose citizenship by acquiring the citizenship of another country.

1.27.2.4. Deprivation of Citizenship

If a person acquired citizenship by registration, the citizenship may be
revoked if the person:

(a) Acquired the citizenship by fraud, false representation or

concealment of any material fact;

(b) Has, during any war in which Kenya was engaged, unlawfully
traded or communicated with an enemy or been engaged in or
associated with any business that was knowingly carried on in
such a manner as to assist an enemy in that war;

(c) Has, within five years after registration, been convicted of an

offence and sentenced to imprisonment for a term of three years
or longer; or

(d) Has, at any time after registration, been convicted of treason, or

of an offence for which:

(i) A penalty of at least seven years imprisonment may be

imposed; or

(ii) A more severe penalty may be imposed.

The citizenship of a person, who was presumed to be a citizen by birth,

may be revoked if:

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 (a) The citizenship was acquired by fraud, false representation or
concealment of any material fact by any person;

(b) The nationality or parentage of the person becomes known, and

reveals that the person was a citizen of another country; or

(c) The age of the person becomes known, and reveals that the
person was older than eight years when found in Kenya.

1.28. Domicile
A person’s domicile is that country in which he either has or is deemed
by law to have his permanent home or residence. The Kenyan law
relating to domicile is contained in the Law of Domicile Act 1970. This
statute codifies the common law on domicile with a few modifications. It
makes the following provisions:

1.28.1. Domicile of origin

A person acquires it at the moment of his birth. Section 3 of the Law of
Domicile Act provides that every person shall be deemed to have
acquired at the date of his birth:

 If he is born legitimate, the domicile of his father or if he is born

posthumously the domicile of which his father had at the date of
his death; if he is born illegitimate, the domicile of his mother.

 An infant who is legitimated by the marriage of his parents shall

acquire the father’s domicile at the date of legitimization.

 By Section 4 of the Domicile Act, an infant who is a foundling

shall be deemed to have acquired the domicile of the country
where he is found.

 Section 5 provides that an infant whose adoption has been

authorized by a court shall acquire the domicile of the adopter or if
adopted by a couple, that of the husband.

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1.28.2. Domicile of Dependence
Under Section 7 of the Domicile Act, a married woman acquires the
domicile of her husband known as the domicile of dependence.

However, under Section 8(3), an adult married woman shall not by

reason of being married be incapable of acquiring an independent
domicile of choice. This means that a married woman who is an adult
can acquire a domicile of choice separate from that of her husband
whereas a married woman who is not yet 18 years old cannot do so.

1.28.3. Domicile of choice

Under Section 8(1) of the Act,

Where a person not being under any disability takes up residence in another
country other than that of his domicile with the intention of making that
country his permanent home or where being resident in a country other
than his domicile, he decides to make that country his permanent home,
he shall as from the date of so taking up residence or of such decision
acquire domicile in that country and shall cease to have his former
domicile.
1.28.4. Unity and Continuity of Domicile
Under Section 10 of the Act:

No person may have more than one domicile at any one time and no
person shall be deemed to be without a domicile although a person may
have left the country of his domicile with the intention of never
returning, he will retain that domicile until he acquires a new domicile of
choice.

The domicile of origin is however not destroyed but is merely put in

abeyance during the continuance of a domicile of choice and is revived
by loss of the domicile of choice.

1.28.5. Importance of Domicile

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country whose laws will govern the validity of his will relating to
moveable property and such other matters like legitimization, validity of
marriage and divorce.

1.29. Legitimacy and Legitimation

1.29.1. Legitimacy
This refers to the relationship between a child and his alleged father. For
the purpose of the Kenya law of legitimacy, it may be described as a
term, which defines the legal relationship between a child and a man
alleged to be the child’s father.

It is primarily for the purpose of establishing the child’s right to inherit

property as a member of the man’s family. It distinguishes the legal
position of a child begotten by a man with a woman to whom he is not
married.

A child is presumed to be legitimate if:

 His parents were married at the time of his conception. It is

irrelevant that the marriage is terminated before the child’s birth
e.g. by the parents’ divorce.

 His parents were married before he was born even though he was
conceived before the marriage.

1.29.2. Legitimization
This is the legal process by which a person born illegitimate becomes
legitimate. Under the Legitimacy Act Section 3(1),

Where the parents of an illegitimate person marry or have married one

another, whether on or after the commencement of the Act, the
marriage shall, if the father of the illegitimate person was or is at the
date of the marriage domiciled in Kenya, render that person if living,
legitimate from the date of the marriage.
Section 5(1) of the Act provides that:

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A legitimated person and his spouse, children or more remote issue shall be
entitled to take any interest in the estate of the intestate dying after the
death of his legitimization.
Section 8 of the Act further provides that: “A legitimated person shall
have the same rights and shall be under the same obligations in respect
of the maintenance and support for himself or of any other person as if
he had been born legitimate.”

It should be noted that the Act’s perception of legitimacy is based on the

English law and culture rather than the African customs, traditions and
culture.

1.29.3. Operation of the Constitution and Other Laws

It should also be noted that the law in relation to legitimation is subject
to provisions of the constitution which provides for non-discrimination
and the children’s Act as well as the Law of Succession Act which entitle
the children to succeed whether they are legitimate or illegitimate.

Under the Constitution, in article 27, “every person is equal before the
law and has the right to equal protection and equal benefit of the law.”
Both the state and individuals cannot therefore discriminate directly or
indirectly against any person on any ground, including race, sex,
pregnancy, marital status, health status, ethnic or social origin, colour,
age, disability, religion, conscience, belief, culture, dress, language or
birth. Thus, discrimination on children on account of illegitimacy would
essentially be unconstitutional.

Under the Law of Succession Act, section 3 defines “child” or “children”

to include, in relation to a female person, a child born to her out of
wedlock, and. in relation to a male person, a child whom he has
expressly recognized or in fact accepted as a child of his own or for
whom he has voluntarily assumed permanent responsibility.
Furthermore, a child born to a female person out of wedlock, and the

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child of a male person, shall have relationship to other persons through
her or him as though the child had been born to her or him in wedlock.

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