Family Law-Gpr 305

FAMILY LAW-GPR 305
FAMILY LAW
GPR 305
TAUGHT BY: DR.WILLIAM MUSYOKA
FROM SEPTEMBER 16TH 2013
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THESE NOTES HAVE BEEN COMPILED BY JOSEPH MCDONALD PHOTOCOPYING IS PROHIBITED

FAMILY LAW-GPR 305
LECTURE 1: 16TH SEPTEMBER 2013- 5.30-7.30PM (LECTURE HALL B5)
TOPIC 1: DEFINITION AND HISTORY OF FAMILY LAW IN KENYA
DEFINITION
What is A Family?
In one social context a family may refer to a man and a woman who share a common household.
In another, it is defined as all persons who share blood relations.
In others, it is defined as all persons who share a household.
In others still it means all the members of a household, including parents and children with
perhaps other relations, lodgers and even servants.
The family is the basic component of a society organization.
Marriage and the founding of a family is a basic human right as per Article 16 of the Universal
Declaration of Human Rights.
Article 23 of the International Covenant on Civil and Political Rights declares that the family is
the natural and fundamental group unit of society and is entitled to protection by society and
the state.
It is also the basic economic unit of society in the sense that the most productive activities take
place within the family set up.
The family setup provides a framework for the parties to have satisfactory sexual expression.
It guarantees perpetuation of society through the receiving of offspring.
It provides a framework for companionship between the members of that family.
LEGAL DEFINITION OF FAMILY

Legally, the term family is a restricted concept.
There are certain formal pre-requisites that have to be met and the main one is a marriage
ceremony.
In law a family is created when parties enter into a legally recognized marriage.
The law also restricts the right to terminate that legal status.
The family is registered because it serves a number of purposes in society.
The family contemplated by the general law is the modern English type – consisting of husband
and wife bound in monogamy for life subject only to the possibility of a judicial decree of
divorce, with their children.
The notion of family in African society is much wider. It embraces the concept of the extended
family, which may consist of the man, his wife or wives, his children (that is to say his unmarried
daughters and his married sons with their wives and children) and other more distant relatives –
such as his young brothers with their wives and children.
FAMILY LAW
Family law gives effect to the society’s values as regards the relationship between man and
woman.
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Family law seeks to define status between the parties in that family i.e. it defines what rights a
member of the family can claim over the other or over the other’s property.

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Altering the status of parties in the family. A remedial role; that it serves to protect certain
weaker members of that family e.g. children.
On termination of a family relationship there are certain members who may need protection
especially economic protection.
The trend now is that not all family relationships are created by marriage ceremonies such as
cohabitation, single parents. The law has developed to recognize some of these relationships.
Some of the developments in law have been to deal with these issues, under common law and
equity there is recognition given to cohabiters. Children born out of marriage also acquire
recognition.
Family law is the law that governs agreements to marry and betrothals, formalities that bring
marriages into existence, maintenance, separation, custody, adoption, nullity, divorce property
acquired during the marriage by the spouse and devolution of property in the event of the death
of a spouse.
FAMILY LAW IN KENYA

The population of Kenya is a variety of cultural diversities.
There are large numbers of Bantu speaking communities as well as speakers Nilotic and Nilo –
Cushitic languages.
Other than that there are also large populations of people of Asian and Caucasian descent.
This diversity is reflected in the personal laws applying to the various sections of the population.
The mix has also meant that family law in Kenya has a much wider ambit than it is understood in
England.
HISTORY OF FAMILY LAW IN KENYA
a) Introduction
The territory which is now known as Kenya originally had two family laws African customary law
and Islamic law.
Islamic law was introduced through the trans-Indian Ocean trade between the Arabian
peninsular and the east coast of Africa, otherwise African customary law was the original law.
The colonization of Kenya saw the establishment of statutory of marriage and divorce which
introduced principles of English family.
At about the same time the Hindu family law was introduced after the colonial government
brought in many people from India to work as laborers during the construction of the Uganda
Railway.
Before then however there was some presence of persons professing the Hindu faith along the
coast since the Indian sub-continent had been trading with the east coast of Africa for centuries.
The starting point for establishment of the modern family law systems in operation in Kenya
today is the 1897 East Africa Order in Council, which established a legal system for Kenya, and
in the process applied certain Indian and British Acts of Parliament to the East African
Protectorate.
It also applied the common law of England and principles of equity which were in force in
England at the time. It also provided for the application of African customary law and Islamic
law.
In a word it provided for the application of the four systems of family law that are in operation
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in the country today.

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These Four were

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i. African customary law, applying to Africans

ii. Islamic law applying to those who profess the Islamic faith irrespective of their race,
iii. Hindu customary law applying to Asians who profess the Hindu faith and
iv. English law which applied mainly to Europeans and to those Africans who are taken
have accepted the English way of life.
There however existed uncertainties about these laws. Before 1946, it was not clear to the
courts whether or not Hindu customary law governed the Hindu marriage. Similarly, before
1920 when the Mohammedan Marriage, Divorce and Succession Act was enacted, the High
Court, basing its decisions on Hyde vs. Hyde declined to entertain matrimonial causes arising
from Muslim marriages on the ground that no law said that it had such jurisdiction.
The East Africa Order in Council of 1897 was clear that the family law of the
i. Muslims was Islamic law
ii. For the African customary law applied
iii. For the African Christians it was the law applying to Christians in India,
iv. While for the Europeans it was the Indian Divorce Act of 1869, applied by the Order in
Council to Kenya, together with English statutes and the principles of the common law
and doctrines of equity in force in England as at 12th August 1897.
In 1902 the East Africa Marriage Ordinance was enacted to enable Europeans and westernized
non-Europeans to contract the English type of marriage in accordance with a law derived from
English law.
The statute applied the English law of succession to such Africans and their children.
The assumption inherent in this later provision was that by marrying in the English way the
African abandoned the African way of life and totally embraced the English culture and way of
life. See Cole vs Cole (1898) 1 NLR 15

Cole vs Cole(1898) 1 NLR 15
This Nigerian case was based on a similar law in colonial Nigeria and is illustrative of the then prevailing
colonial thinking that the English type of marriage was superior to the African marriage, and that the act
of an African of contracting an English style marriage indicated the African’s abandonment of his African
ways and his embrace of the English way of life.
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 and the man’s brother
argued that under Customary Law he was the one entitled to inherit the man’s property. The wife
argued that since they had married under the Marriage Ordinance they had distanced themselves from
the African way of life therefore African customary law did not apply and instead the English Law of
Succession applied and that under that English Law of Succession she was the one entitled to inherit in
her own right and as guardian of her son. The court upheld her argument basically stating that since
they had married under the marriage ordinance the African customary law no longer applied to them.
The East African Marriage Ordinance of 1902 was amended in 1904, by the repeal of section
39 which had applied the English law of succession to African Christians.
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1904 also saw the promulgation of the Native Christian Marriage Ordinance which sought to
introduce to Africans a simplified procedure of contracting an English style marriage.

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The formalities followed in English law were considered too complex for the African Christian.
The statute was replaced in 1931 with the African Christian Marriage and Divorce Ordinance,
(The Current Cap 151 Laws of Kenya) which dealt with aspects of marriage peculiar to Africans.
Africans married under this Ordinance had the same law governing their married life as that
which governed Europeans.
It is clearly discernible from the operations of all the four systems of family laws applicable in
Kenya that they were anglicized to a large extent.
On matters touching on custody of children, the colonial court initially applied the different
laws relating to custody instead of applying the English law on the matter to Africans, Muslims
and Hindus, but later the colonial began to subject the English law of child custody to all these
different groups without exception.
The device of conversion was another avenue, the law governing the celebration of English
style marriages provided for the conversion of marriage from African customary law or Islamic
law marriage to English law marriage. See Section 11 and 13 of the East African Marriage
Ordinance.
The African Christian Marriage and Divorce Ordinance provided for the conversion of the
potentially polygamous African customary law marriages into the monogamous English type.
See Section 9 of The African Christian Marriage and Divorce Act (Cap 151)
Marriage before licensed minister or registrar
9. (1) Whenever any persons already married or professing to be married to each other by native law and custom
desire to convert that marriage into a marriage by which they are legally bound to each other-as man and wife so
long as both shall live, they may, subject, to the provisions of sections 7 and 8 of this Act, contract a marriage
before a licensed minister in a place of worship or before a registrar in his office, in either case in the presence of
two witnesses, with open doors, between the hours of 6 o'clock in the fore-noon and 6 o'clock in the afternoon
and in the following manner.
(2) The licensed minister or the registrar shall, either directly or through an interpreter, address the parties thus-
"Do I understand that you, A.B., and you, C.D., have been heretofore married to each other by native law or
custom, and that you come here for the purpose of binding yourselves legally to each other as man and wife so
long as both of you shall live?"
(3) If the parties answer in the affirmative he shall proceed thus-
"Whereas you, A.B., and you, C.D.. profess that you have been heretofore married to each other by native law or
custom, and whereas that marriage does not bind you by law to each other as man and wife so long as both of you
shall live, and whereas you desire to bind yourselves legally each to the other as man and wife so long as both of
you shall live: know ye that by the public taking of each other as man and wife so long as both of you shall live, in
my presence and in the presence of the persons now here, and by the subsequent attestation thereof by signing
your names to that effect, you become legally bound to each other as man and wife so long as both of you shall
live although no other rite of a civil or religious nature shall now take place, and that hereafter your marriage
cannot be dissolved during your lifetime, except by a valid judgment of divorce; and if either of you before the
death of the other shall illegally contract another marriage while your marriage to each other remains un
dissolved, you will be thereby guilty of bigamy, and liable to punishment for that offence,"
(4) Each of the parties shall then say to the other-

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"I call upon all persons here present to witness that I, A. B. , do take thee, C. D. , to be my lawful wife (or husband)

FAMILY LAW-GPR 305
so long as both of us shall live."
(5) A licensed minister (whether or not he has been appointed a registrar under section 11 of this Act) may in his
absolute discretion refuse to witness a contract of marriage under this section.
These provisions remain in these two statutes to date. At independence it was decided that all
these family law systems be put at par and remain in force until a common way of life emerged
when one family law would replace them. This was captured in Section 82 (4) (b) of the Old
Constitution the law that protects against discrimination (but exempts laws of personal nature
based on customs or religion).See also Article 45 (4) (a) and (b)

45. (1) 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.
(2) Every adult has the right to marry a person of the opposite sex, based on the free consent of the parties.
(3) Parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage and at the
dissolution of the marriage.
(4) Parliament shall enact legislation that recognizes—
(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
b) Law Applying to Africans
(i) African customary law
Insofar as the natives were concerned, the East Africa Order in Council of 1902 had limited
application.
It provided that cases against natives would be brought in native courts and a Commissioner
was given the power to establish and abolish those Native Courts and to regulate their
procedure as well as give directions as to the application of native law and custom.
As a result of this power, the Commissioner made the Native Court Regulations of 1897 and
what these regulations provided was that in matters affecting the personal status of natives,
then the law of their caste or tribe insofar as it could be ascertained and insofar as it was not
repugnant to national morality could be applied. The provisions were further modified by the
Native Courts Regulations.
The East Africa Order in Council of 1902 whose main purpose was to clarify further when
customary law applied. It was provided that in all cases whether civil or criminal in which
natives were parties, the courts would be guided by native law in so far as it was applicable and
not repugnant to justice and morality or inconsistent with any law made in the protectorate.
This introduced the repugnancy doctrine. In application the colonial judges and administrators,
being either British or trained in Britain, followed the principles of justice and morality obtaining
in Britain at the time,e.g see Marko Kajubi vs. Kulanima Kubali although in a number of cases
they upheld some local customs e.g. Rex vs. Obongo and modified others.
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This formulation of the Order in Council is the same formulation that we have in Section 3 of
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our Judicature Act insofar as application of customary law is concerned.

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In areas of family law for those natives who still practice customary law are still governed by
African Customary Law.
3. (1) The jurisdiction of the High Court, the Court of Mode of Appeal and of all subordinate courts shall
be exercised in conformity with-
(a) the Constitution;
(b) subject thereto, all other written laws including the Acts of Parliament of the United Kingdom
cited in Part I of the Schedule to this Act* modified in accordance with Part II of that Schedule;
(c) subject thereto and so far as those written laws do not extend or apply, the substance of the
common law, the doctrines of equity and the statutes of general application in force in England
on the 12th August, 1897, and the procedure and practice observed in courts of justice in
England at that date;
but the common law, doctrines of equity and statutes of general application shall apply so far only as
the circumstances of Kenya and its inhabitants permit and subject to such qualifications as those
circumstances may render necessary.
(2) The High Court, the Court of Appeal and all subordinate courts shall be guided by African customary
law in civil cases in which one or more of the parties is subject to it or allocated by it, so far as it is
applicable and is not repugnant to justice and morality or inconsistent with any written law, and shall
decide all such cases according to substantial justice without undue regard to technicalities of procedure
and without undue delay.
This was basically the same approach that was taken by the Kenyan colonial court and you will
find this stated in many of the cases that were decided in that period R v. Amkeyo, R v.
Mwakio, Robin v. Rex
Most of these cases were actually dealing with issue of admissibility of evidence given by the
wives arguing that they are in a privileged position and therefore could not testify against their
husbands in Mwakio the Judge said that “it is unfortunate that the word wife and marriage have
been applied in this connection. If only the woman party had been described as a concubine or
something of the sort, the question could never have arisen.”
That illustrated the colonial courts attitude to women who were married according to
customary law.
They did not deserve to be termed wives as per the colonialists and the wife evidence was going
to be admissible because they were married under customary law.
(ii) Statutory law
The Native Christian Marriage Ordinance applied only to the marriage of Christian applicants.
It was supposed to supplement the Marriage Ordinance and was intended to relieve the
Africans of the need to comply with the formalities laid down in the marriage ordinance.
It only applied to Africans who professed Christianity and just like marriage ordinance marriage
under this Act was strictly monogamous.
This Act also provided some protection to widows in the sense that widows who had been
married under the ordinance were protected from being inherited as was the case in customary
law. That is they could refuse to subject themselves to the subject of widows inheritance.
The marriage had to be celebrated by a church minister and before the church minister did this
he had to satisfy himself that the parties were Christians.
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See Samuel Uledi vs. Lydia Habibu

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Samuel Uledi vs. Lydia Habibu

Held that the divorce ordinance no.12 of 1904 only applies where the petitioners professes the Christian
religion or has been married under the marriage ordinance and the jurisdiction has to be exercised in
accordance with the law applied in the high court of justice in England. Also held that a marriage
between native Christians before1902 not celebrated by a minister of a religious denomination
according to the rites of that denomination is invalid.
The Native Christian Marriage Ordinance was replaced in 1891 with the African Christian
Marriage and Divorce Act (Cap 151).
c) Law Applying to Muslims
For those natives who were Muslims, Islamic law would apply to them and this was with regard
to matters affecting their personal status.
See Khamis Bin Ahmed vs. Ahmed Bin Ali Bin Abdurehman
CASE 3
Khamis Bin Ahmed vs. Ahmed Bin Ali Bin Abdurehman
Held that the law of Islam cannot be described as native law for the purpose of Article 7 of the Kenya
colony order in council 1921 merely because it is the law applicable to many, or even all, of the natives
in Kenya.
In 1906, the Mohammedan Marriage & Divorce Registration Ordinance was introduced to
provide for registration of Islamic Marriages and Divorces.
The ordinance only provides for registration of marriage or divorce. The Act is basically
procedural and not substantive.
d) Law Applying to Hindus
There were also two other communities in Kenya at the time, the British Colonizers and the
Indians who had been brought in as labour and the issue here was whether for those groups
they applied Indian Act or British Laws and common law rules were applied.
The Indian Law was basically British law that had been passed in India and there was not much
difference between the two, they were obviously geared for application to the British Settler but
did they apply to the Hindu? The assumption was that in Kenya, they would apply.
As early as 1898 we have all these laws governing different peoples. Muslims still continue to be
governed by Muslim Law but with Hindus a number of developments occurred which made the
Hindus to adopt laws that were similar to those found in the statues.
In 1946 the Hindu Marriage, Divorce and Succession Ordinance was enacted.
This is where Hindus parted way with Hindu Customary Law. The Act provided that in future all
Hindu Marriages were to be monogamous and the Act extended to Hindus the reliefs that are
available under the Matrimonial Act and under the subordinate Courts separation and
maintenance Act.
Under orthodox Hindus, marriages can be polygamous. The first enactment on Hindu family law
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came in 1946, the Hindu Marriage, Divorce and Succession Ordinance, to address two
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difficulties faced by Hindus.

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i. In the first place, when Hindus sought matrimonial relief in the courts they came up
against the argument that a Hindu marriage was not a marriage within the meaning of
that term in any of the ordinances in force in Kenya. This is Because Hindu marriages
were potentially polygamous the colonial courts declined to assume jurisdiction to grant
matrimonial reliefs the way English courts did following Hyde vs. Hyde and Another
rule. See the decisions in Ganga Devi vs. Tulsi Dass and Kakar vs. Kumari .The 1946
Ordinance sought to define the Hindu marriage and it stated at section 3(1) that a Hindu
marriage would be deemed for all purposes to be a valid marriage.
ii. The second difficulty related to the ascertainment of the law applicable in a particular
case. On this the Ordinance laid down two principles.
a) The court was to apply the law and custom which would be applicable to the person
seeking relief if he were seeking relief in India. (See Section 5 of Cap 157)
Ceremonies for Hindu marriages

5.(1) A marriage may be solemnized in accordance with the customary rites and ceremonies of either
party thereto.
(2) Where such rites and ceremonies include the Saptapadi (that is, the taking of seven steps by the
bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and binding
when the seventh step has been taken.
(3) Where the marriage is solemnized in the form of Anand Kara] (that is, the going round the Granth
Sahib by the bride and bridegroom together), the marriage becomes complete and binding as soon as
the fourth round has been completed.
b) Secondly, the court could ascertain the Hindu law or any custom by any means
which it thinks fit, and in case of doubt or uncertainty decide the case as the
principles of peace, justice, equity and good conscience may dictate.(See Section 11
of Cap 157)
When law reforms were introduced in India in the 1950s, the Kenya law was amended to reflect
those changes in India.
The 1946 Ordinance was split into two statutes:
i. The Hindu Marriage and Divorce Ordinance of 1960 and
ii. The Hindu Succession Bill of 1960.
The Hindu Marriage and Divorce Ordinance of 1960 was a rehash of the Indian legislation.
e) Law Applying to Europeans
The 1902 Order in Council gave the commissioner power to make laws which would apply in
the protectorate and one of the first law that was made in 1902 was the Marriage Ordinance.
This Ordinance was a law of general application in the sense that it was not limited by race or
religion and was meant to apply to all residents in the protectorate.
It provided for basically a Christian form of marriage which was strictly monogamous and made
it an offence for a person married under customary law to contract a marriage under the
ordinance or vice versa.
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It was also meant to provide an avenue for the converted natives to contract the Christian type
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of marriage and for the settlers to contract marriage.

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What was important is that any African who married under the Marriage Ordinance was
supposed to have embraced the Christian way of life and therefore distanced herself from their
customary way of life.
Cole vs. Cole (Case 1 discussed above) the ruling in this case exemplified the situation of what
happened if one contracted a marriage outside the ordinance.
The Divorce Ordinance provided the procedure for matrimonial matters. This was based on the
Indian Divorce Act of 1869 which was one of the Acts applied by the 1897 Order in Council. It
provided or afforded relief only in respect to monogamous marriages. It was replaced by the
Matrimonial Causes Act in 1941. This remains the position to date.
In 1928 an additional relief was accorded by the Subordinate Courts (Separation and
Maintenance) Ordinance which was limited to monogamous marriages. The purpose was to
provide parties with judicial separation other than divorce and also to provide parties in a
monogamous marriage to seek maintenance while the marriage is still subsisting.
f) The Constitutional Basis for Application of Different Law Systems
One of the arguments put forward very strongly by Dr. Gibson Kamau Kuria when he was
teaching family law was that the Marriage Bill of 1976 was unconstitutional and for that reason
could not be upheld.
The Bill sought to harmonise different family law systems by introducing one law.
He gave two reasons why the bill was unconstitutional. Historically it could not stand because it
assumed that sociologically and politically the Kenyan people were one entity which they were
not and his historical argument is the argument of the different law systems which was along
racial lines and Kenya was still a very racially divided society. The Kenyan constitution
guarantees a right to freedom of conscience and this includes freedom of religion and worship.
Part of that freedom and worship is found in our different family laws. He argues that the
statutory law is found on Christian norms and therefore it is the Christian’s choice to marry
under Christian law, Muslims choice to marry under the Muslim Law likewise Africans were free
to practice their customs under their customs and that to legislate under one uniform law for all
would be unconstitutional.
Under the new Constitution this argument is put forward under Article 45(4) the Constitution
provides that Parliament enacts legislation that will recognize marriages concluded under any
tradition or under any system of religious, personal or family law. This means that we are
looking at the continued multiplicity of family laws in Kenya and there is no sign of any possible
unification in the near future.
45 (4) Parliament shall enact legislation that recognizes—

(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.
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g) Attempts to Unify the Systems

Report of the Commission on the Law of Marriage and Divorce. There was an appendix of a
Marriage Bill proposed in 1996 which sought to harmonize all family laws in Kenya. The report
was also important in the sense that it summarizes what the provisions are under the different
systems of family law with regard to marriage and divorce and why it was thought necessary to
harmonize all the family laws.
Currently there is a new Marriage Bill (2013) in parliament but it is facing the same resistances
which were there in 1996.
h) Applicability of English Law and Common Law Principles

The introduction and application of English law saw the application of a variety of common law
principles in Kenya.
This is an anomaly given that we are almost 50 years into independence and yet we still apply
English Laws and English Statutes particular in areas of family law.
Common Law Presumptions continued application of common law in form of common law
presumptions which still apply to Kenya.
i) Islamic Family Law
The Constitution of Kenya preserves the application of Islamic law to family matters where all
the parties concerned are Muslims. There is also the statutory basis for this application in the
Mohammedan, Marriage, Divorce and Succession Act (Cap 156 of Kenyan Laws) and the
Mohammedan Marriage and Divorce Registration Act (Cap 155 of Kenyan Laws).
There are large numbers of Muslims in Kenya representing different schools of Islamic law.
Majority of African Muslims are of the Shafi’i school of the Sunni sect, while the non-African
Muslim communities include members of most of the Shi’i communities.
The groups have differing rules on certain points of family law. It will be noted that among some
African Muslim communities conflict exists between traditional customs and the rules of Islam
and the rules used in practice tend to be a synthesis of the two.
Because Hindu (See Ganga Devi vs. Tulsi Dass) and Muslim (See Mohammed vs. Fatuma and
Athuman vs Baka ) marriages were potentially polygamous the colonial courts declined to
assume jurisdiction to grant matrimonial reliefs the way English courts did following Hyde vs.
Hyde and Another Rule.
The laws that are now in application in the area of family are:
1. Customary laws of the indigenous communities;
2. The common law which embodies the principles of English family and Christianity;
3. Islamic law for both Africans and Asiatic Mohammedans;
4. the Constitution of the Ismailis, the followers of the Aga Khan; and
5. Hindu law for Hindus.
The multiplicity of these laws has enabled the administration of law in conformity with the
cultural tenets of the communities to which they apply, but the same presents a challenge in the
proper administration of family law matters.
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LECTURE 2: 23RD SEPTEMBER 2013- 5.30-7.30PM (LECTURE HALL B5)
TOPIC 2: MARRIAGE SYTEMS IN KENYA

The institution of marriage is said to be a creation of morality, the moral law of the society being
made up of the ideas which members of that society have in common about the right way to
live.
Indeed the association of men and women in wedlock from time immemorial has been of great
importance to society to the extent that its regulation has always been seen as a matter of
morals.
The essential elements of marriage in law are supplied by a common humanity or self evident
aspects of human nature that make marriage irresistible to men and women and the current
ideal as regards the family organization in the particular society.
Society establishes systems to govern the man-woman relationship. These include rules
prohibiting incest, regulating how parties enter into the relationship, age at which the
relationship may be commenced at, among others.
International instruments have identified the marriage institution as an essential part of
society.e.g
i. The Universal Declaration of Human Rights (Article 16) declares the desire to associate
with a member of the opposite sex, to marry and found a family as basic human rights.
ii. The International Covenant on Civil and Political Rights (Article 23) expounds on this,
by recognizing the family as a natural and fundamental unit of society which needs the
protection of both the society and the state. It also recognizes the right of men and
women of marriage age to marry and found a family. It also sets out some of the
prerequisites of marriage that must be protected by the state: it should be contracted
consensually; there should be equality of rights and responsibilities as between the
spouses, protection of children of the marriage, among others.
Marriage is a union between one man and one woman who intend to live together as husband
and wife.
In a polygamous marriage the man contracts separate marriages with each woman so that for
each it is a union between one man and one woman.
Marriage therefore is basically a consensual and social contract between the parties involved.
The marriage contract is a species of a standard form contract since the parties to it do not
determine its content.
The state, in the case of statutory law, the religious leadership, in the case of Islamic law, and
the elders, in the case of customary law, play the role of the stronger party in a standard form
contract in terms of setting out the contents of the marriage contract.
Whether the union should be monogamous or polygamous, whether it should be dissoluble or
not, what obligations the spouses should undertake to each other are matters that society does
not leave to the individuals concerned.
The conventional marriage is that between a biological man and a biological woman.
In African societies however there is also the woman to woman marriage, where one woman is
notionally said to be marrying another.
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This type of marriage does not involve sexual relations between the women since it is essentially
a device to aid a childless woman, for this reason it does not run counter to the conventional
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marriage, and there is really no practical difference between it and the conventional marriage.

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a) Marriage Systems in Kenya
The institution of marriage world over seeks to meet basic common needs of men and women.
There are several basic needs of men and women which provide the philosophical basis of the
marriage institution.e.g
i. There is the need to meet sexual needs in the best way.
ii. It also provides security as it applies to sex and other needs that can be guaranteed by
marriage.
iii. There is the need by men and women to prevent themselves as individuals and as a
society from extinction since men and women are products of seeds of men and
women, hence the need to express one’s manhood or womanhood through
procreation.
iv. Human beings need a confidant with whom one shares their fears, hopes and anxieties.
v. Marriage also provides one with extra physical, material and emotional support, since
no one is capable of being self-reliant in a general way.
vi. Marriage also satisfies the need to give meaning to life through having children and
thereby expressing the latent humanity or living as God or society demands.
vii. There is also the need to obtain identity with reference to a person of the opposite sex
that is by being somebody’s man or woman.
The Kenyan legal system is characterized by a multiplicity of marriage laws.

Generally legal marriages in Kenya can be contracted under the Marriage Act which is open to
all persons irrespective or race, and it provides for with both civil and Christian religious
ceremonies.
An African marrying under this statute removes him from the operation of African customary
law as far as its legal incidents are concerned.
There is also the African Christian Marriage and Divorce Act which lays down a simple
procedure providing for marriages between African Christians and for the conversion or
monogamisation of customary marriages into statutory marriage.
An African marrying under this statute or converting his customary marriage under the statute
also removes himself from the operation of African customary law.
The marriage ceases to be potentially polygamous and becomes monogamous.
It cannot be dissolved extra-judicially, it for life dissoluble only by way of a valid judicial decree
of divorce.
He loses the capacity to marry another during the subsistence of the monogamous marriage
contracted or upgraded or declared under the Act.
The Matrimonial Causes Act governs the consequences of the monogamous marriages
contracted under the Marriage Act and the African Christian Marriage and Divorce Act.
Generally, the marriage statutes embody English values, and there is therefore the tendency to
treat those Africans marrying under statute as being more or civilized compared with those
marrying under customary law.
The Hindu Marriage and Divorce Act and the Mohammedan Marriage, Divorce and Succession
Act govern marriages of Hindus and Muslims performed in accordance with their laws.
There are a myriad of customary laws which govern the marriage and divorce of the greater
part of the African population.
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These various laws differ on vital matters relating to age requirements, consents, registration,
grounds for divorce, which ultimately creates conflicts and administrative problems.
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Marriages contracted under the Marriage Act, the African Christian Marriage and Divorce Act
and the Hindu Marriage and Divorce Act are monogamous, while the rest are potentially
polygamous.
The statutes providing for monogamous marriages in many ways resemble the English family
law.
In fact the Matrimonial Causes Act is a reproduction of certain provisions of the English
Judicature Act of 1925 and the English Matrimonial Causes Act of 1837 (See Carnie vs. Carnie).
The marriage systems in Kenya are grouped in a hierarchy with the monogamous systems (civil,
Christian and Hindu) occupying the higher echelons and the potentially polygamous (Islamic and
African customary law) types fill the subordinate positions.
Under Islamic law it is important to note that Shia Ismailia’s are monogamous since their
personal matters are governed by the Ismaili Constitution, 1962, as the same has been judicially
held to be applicable to them. See such cases as Sadrudin Saleh Mohammed vs. Firozhanu
Gulam Husein Bhimji and Malek Sultan vs. Sherali Jeraj
Although the law does recognize polygamous marriages, both African customary and Islamic,
they appear to have been treated as inferior to monogamous marriages. See Rex vs. Amkeyo.
Rex vs Amkeyo
Where it was held that communications between spouses of polygamous marriages were not privileged.
The court took the view that the customary marriage had all the elements of a wife purchase and that
such union cannot create the mutual trust and confidence which existed in civilized marriages, and it
could not be said that such a wife was within the purview of the general rule that a husband or wife of
the person charged is not a competent and compellable witness for the prosecution.
See also where Sir Robert Hamilton CJ said that he did ‘… not think that it can be said that the native
custom (on marriage) approximates in any way the legal idea of marriage.’
Other cases that depict this point are Rex vs. Mwakio; Abdulreheman bin Mohammed and
Another vs. R ; Robin vs. R ; R. vs. Toya s/o Mamure
In the final analysis, the African customary law marriages occupy the lowest degree of respect
under the positive law.
There is no legislation directly concerned with African customary marriages. The same is treated
in legislation as rather inferior to the rest, and this explains the existence of express provisions
in some pieces of legislation which permit the conversion or upgrading of these supposedly legal
African customary marriages to the status of either the Islamic or Christian religious forms.
There is no provision for the opposite process that is to convert from monogamous to
potentially polygamous marriage. One reasonable explanation for the absence of such provision
was to encourage monogamy, which was regarded as the superior form of marriage.
1. Customary Law
In traditional Africa, the society was communalistic in structure and organization, apparently
founded on the notion that it was the best way then for individuals to lead a good life, and the
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marriage arrangement in place was influenced by this philosophy.

To Africans marriage is the focus of existence and everything else hinges on it.
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Marriage has its foundations in religion and it is tied up with the concept of personal
immortality of the parties.
The man-woman relationship is seen as the insurance to a secure future, and for that reason the
relationship has to be established openly, inbreeding is prohibited to ensure the survival of the
society and emotional security demands that certain unions by people related to one another
through blood and marriage be forbidden.
Amongst Africans procreation is treated as the principal object of marriage.
Marriage is an alliance not only of the man and the woman or one man and several women; it is
also an alliance of families of the wife or wives and the husband.
It expresses the communal life of Africans. All the incidents of a customary marriage are
evidence of this.
The concept of dowry or marriage payments and parental consent, for example, strengthen the
family.
Members of the man’s extended family participate in the payment of dowry by contributing to
it.
On the other hand members of the woman’s extended family are expected to share the same
once it is paid to them.
There is no legislation directly concerned with the African customary marriage, although
marriage according to the rules of customary law is still in general the most common form of
marriage.
The same is treated in legislation as rather inferior to the rest, and this explains the existence of
express provisions in some pieces of legislation which permit the conversion or upgrading of
these supposedly legal African customary marriages to the status of either the Islamic (Section 6
of Cap 156) or Christian (Section 9 of cap 151) religious forms.
Judicial opinion on the African customary law marriage has in the past also been unkind,
especially during the colonial period.
The most famous negative opinion being expressed in Rex vs. Amkeyo, where Sir Robert
Hamilton CJ said that he did ‘… not think that it can be said that the native custom (on
marriage) approximates in any way the legal idea of marriage.’
Later judicial opinion on African customary laws of marriage has been more favourable.
This could be explained on the basis of the attainment of independence as well as the
Africanisation of the bench. See the following cases
Mwagiru vs. Mwangi

Miller J stated that a marriage contracted under Kikuyu custom can result in a perfectly valid marriage
provided there has been compliance with the rules which govern such form of marriage.
Case vs. Ruguru

Miller J observed that it is settled law that marriages properly contracted under customary law are of
legal effect and matters pertaining to promises and preparations are cognizable by the courts depending
on the circumstances.
William Muli vs. Francis Kithuka

Miller J, in, strongly observed that it was wholly erroneous to entertain the notion that customary law
marriages are inferior to those contracted under statute.
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African traditional marriages are regulated by customary law whose legal bases for application
are to be found in several statutory provisions, including Article 45 (4) of the Constitution,
Section 3(2) of the Judicature Act and the Magistrates Courts Act.
The Constitution of Kenya theoretically embodies the highest legal norms and standards in the
state to which all laws must conform, provides general recognition of customary laws.
The provision also allows the promulgation of discriminatory laws on adoption, marriage,
divorce or other matters of personal law.
Differential laws are proper in certain areas in a plural society as obtaining in Kenya, but such a
provision may also permit prejudicial categorization of legal standards as those found in Kenyan
legislation that make African customary law of marriages subordinate to the other systems.
The legality of African customary law marriages is recognized by the Judicature Act (Cap 8 Laws
of Kenya) which provides, in Section 3(2), that the courts in Kenya determining disputes brought
before them are to be guided by African customary law in civil cases in which one or more of the
parties is subject to it so far as it is applicable and is not repugnant to justice and morality or
inconsistent with any written law.
This is a conditional recognition of African customary law and it is of a general nature, and
marriage, divorce and other personal matters are assumed to be covered within the provision.
There is another opinion that section 3 of the Judicature Act makes it mandatory, where the
parties are Africans, for the courts to apply African customary law provided the same is not
contrary to any written law, common law, doctrines of equity and is not repugnant to natural
justice.
The Magistrates’ Courts Act (Cap 10 Laws of Kenya) recognizes the legality of African customary
marriage laws in a more specific and relevant nature. Section 2 of the Magistrates’ Courts Act
provides that a ‘claim under customary law’ means a claim concerning, inter alia: marriage;
divorce; maintenance; dowry; seduction or pregnancy of an unmarried woman or girl; matters
affecting status, particularly of women, widows and children, including guardianship, custody,
adoption and legitimacy; and succession.
The Evidence Act (Cap 80 Laws of Kenya) in Section 130(2) provides that marriage is
recognizable whether or not monogamous, which is by law binding during the lifetime of both
parties unless dissolved according to law, and it includes a marriage under native or tribal
custom.(See also Section 59,60 and 127).
The Marriage Act recognizes the legality of African customary marriages under Section 37,
which prohibits any person married under the Marriage Act from contracting another marriage
under native law or custom during the subsistence of the civil marriage saving that nothing in
the Marriage Act affects the validity of any marriage contracted under any customary law.
Under section 49 of the Marriage Act it is an offence for any person married in accordance with
native or custom to contract a civil marriage under the Marriage Act to any person other than
the person with whom such person is married under such native law. But this recognition is
made superfluous by Section 11(d) and Section 35(1) which permit the conversion of marriages
contracted under Islamic law and customary law, respectively, to the monogamous Christian-
civil marriage which is presumably the better system.
It bears repeating that there is no legislation directly concerned with African customary
marriages, either on its content and substance or on its procedures. Tanzania enacted much of
the customary laws in that country in the Declarations of Local Customary Law, 1963 and 1964.
The customary laws of all the nationalities in Kenya have been documented in a Restatement of
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the law, the famous Restatement of African Law, Kenya, Volume 1: The Law of Marriage and
Divorce by Eugene Cotran.
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The Restatement does not have the force of law, but it has been cited frequently in Kenyan
courts and has been relied upon in several cases involving different aspects of customary law.
E.g in Otieno vs Ougo where the Restatements were applied.
The courts also take judicial notice of known customary law rules, e.g. in Kimani vs. Gikanga
and follow judicial precedent in respect of customary law issues that have been handled by the
superior courts.
Otherwise where the existence of a particular native law, rule or custom cannot be established
by any of the ways mentioned here before, the same must be proved by oral evidence or expert
opinion adduced by the parties.(Kimani vs. Gikanga)
2. English Law
The Kenyan law equates the English type of marriage to a Christian marriage.
This is so because the English law of marriage has its foundation in Christianity.
The English society derives its morality from Christianity, although since the start of the 19th
century there has been a movement towards secularism.
The English institution of marriage therefore bears both Christian and secular characteristics.
These characteristics were defined in Hyde vs. Hyde and Woodmanse
Hyde vs Hyde
Where Lord Penzance said ‘I conceive that marriage as understood in Christendom may…be defined as
the voluntary union for life of one man and one woman to the exclusion of all others.’
The court declared that it had no jurisdiction to grant matrimonial relief in a potentially polygamous
marriage contracted in the United States of America. In the matter the petitioner was a Mormon, whose
faith recognized polygamy, his marriage to the respondent was therefore polygamous.
This definition has been adopted in Section 2 of the Matrimonial Causes Act (Cap 152 Laws of
Kenya) to govern the marriages contracted under the Marriage Act and the African Christian
Marriage and Divorce Act.
Matrimonial Causes Act Cap 152

Section 2 (Interpretations)
"marriage" means the voluntary union of one man and one woman for life to the exclusion of all others;
This would mean that divorce and other matrimonial remedies based on English law, but
provided under Kenyan are not available except for spouses married under statute or for
persons who marry abroad under a system of monogamous marriage.
It is noteworthy that Section 2 of the Matrimonial Causes Act applies the definition in Hyde vs.
Hyde and Woodmanse to the Matrimonial Causes Act only.
The English type of marriage is a voluntary union based on consent. It is essentially
monogamous.
Before secularism developed the dominant theology was that the Christian marriage is
monogamous. The modern explanation for monogamy is that it is in keeping with human nature
that expresses itself through today’s equality of the sexes.
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It is at also meant to be for life, which means that it can only be dissolved by death. This notion
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Since the introduction of secularism into personal law matters the expression for life means that
the parties must have intended marriage to be a permanent as opposed to a temporary union.
See Nachimson vs. Nachimson
Nachimson vs. Nachimson

it was held that a marriage is still for life even if it can be dissolved easily. What is important is that it
should be intended to be for life when it is entered into.
The English common law is not clear on the main purposes of the English law marriage.
The English courts have given differing reasons and explanations for this type of marriage.
See the following two cases offering different opinions:
D.E. vs. A.G

The court appeared to treat enjoyment of sex and companionship as the main purposes of the English
marriage.
(See also Baxter vs. Baxter)
Cowen vs. Cowen

The court took the view that procreation is the main objective of marriage.
(See also Corbett vs. Corbett and Re D (An Infant))
The differences reflected in these approaches are indicative of the possibly antagonistic secular,
Christian and humanistic attitudes towards marriage.
The English law is hostile to polygamy, which is common among societies in Asia and Africa. For
example if you see the remarks of Sir Robert Hamilton CJ in Rex vs. Amkeyo.
Indeed, there has been considerable debate, especially amongst English legal scholars, on the
issue of whether or not a polygamous marriage is really a marriage. According to John Austin, a
custom does not have the character of law and therefore an institution founded on it, like a
polygamous marriage, cannot be seen as a legal institution.
This hostility is displayed openly in the decisions emanating from the English courts where
polygamous marriages came up for consideration. See the following cases for illustration
Hyde vs Hyde
The court declared that it had no jurisdiction to grant matrimonial relief in a potentially polygamous
marriage contracted in the United States of America. In the matter the petitioner was a Mormon, whose
faith recognized polygamy, his marriage to the respondent was therefore polygamous.
NB: (The rule in Hyde vs. Hyde and Woodmanse was reiterated in England in the case of a Ghanaian
customary law marriage in Sowa vs. Sowa .)
Re Bethel
The court declined to treat as a marriage for the purpose of succession a marriage union contracted by
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an Englishman and an African woman in accordance with African customary law since under that law
polygamy is allowed.
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Baindail vs. Baindail

The court recognized a potentially polygamous marriage only for the purpose of enabling the English
woman to obtain a decree of nullity of marriage where she had purported to marry a man whose
personal law allowed polygamy.
(See also Srinivasan vs. Srinivasan; Mehta vs. Mehta ; The Sinha Peerage Case ).
The latter decision and others made around that time postulate the recognition of polygamous
marriages by English law for a few limited purposes. These latter cases represent the modern
position where such marriages are recognized for certain purposes but not for others.
This hostility to polygamy was founded on the Christian belief that God had ordained only the
monogamous marriage and that polygamy really was a practice that encouraged adultery. It was
also founded on racism, where the cultures of the people of Asia and Africa were generally
treated as inferior to the European culture.
There really is no law which can be said to be truly Christian, or applying exclusively to
Christians, whether African, European or Asian. The law for those Kenyan residents who
consider themselves to be Christians is English law.
The Kenyan law can be said to be Christian in only two senses.
i. It permits Christians to marry in accordance with their beliefs under the Marriage Act or
ii. Under the African Christian Marriage and Divorce Act.
Once the marriage is contracted Christianity is not allowed under the legislation to dictate the
content of the marriage.
The legislation, especially the Marriage Act has sanctions that force Africans to retain the
monogamous nature of the marriage celebrated. The issue really is whether marrying under
statute Christianizes the marriage or it merely anglicizes it by bringing oneself under the realm
of the English family law.
3. Islamic Law
Statutory law gives express recognition to Islamic marriages.
Marriages contracted in accordance with Mohammedan law are recognized in Kenya by the
Mohammedan Marriage, Divorce and Succession Act Cap 156 Laws of Kenya.(See Section 3).
Mohammedan Marriage, Divorce and Succession Act Cap 156 Laws of Kenya
Section 3
In all such matrimonial causes or suits as are mentioned in subsection (1) of this section, the Supreme
Court shall exercise its jurisdiction and act and give relief upon the principles of Mohammedan law
applicable to the same respectively or otherwise.
Under Section 49 of the Marriage Act (Cap 150) it is an offence for any person married in
accordance with Mohammedan law to contract a civil marriage under the Marriage Act to any
person other than the person with whom such Mohammedan marriage is contracted.
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The Marriage Act Cap 150

Contracting marriage under this Act, when already married by native law or custom.
49. Whoever contracts a marriage under this Act, being at the time married in accordance with native
law or custom or in accordance with Mohammedan law to any person other than the person with whom
such marriage is contracted, shall be guilty of an offence and liable to imprisonment for a term not
exceeding five years.
Although it is regarded in the superior courts of Kenya that in cases affecting personal status
between Muslims the law to be applied is Islamic law as interpreted by judicial decision, there is
doubt as to whether this position rests on a secure statutory basis. See Fatima Binti bin Salim
Bakhshuwen vs. Mohamed bin Salim Bakhshuwen
Fatima Binti bin Salim Bakhshuwen vs. Mohamed bin Salim Bakhshuwen
The issue touched on the validity of a wakf in Kenya. The dispute was litigated up to the Privy Council,
where the wakf was upheld on the basis that Islamic law in East Africa is the same as in India where the
institution of wakf is recognized. The Kenyan law was at the time silent on its legality in Kenya and there
was also insufficient authority on how to apply Muslim law to it.
There is also doubt that there is any meaningful judicial guidance available to a court
confronted with a problem of whether and on what grounds to apply Muslim law to an issue
before it.
The exact statutory basis for and the extent of the application of Muslim law in Kenya is the
problem, as there is no statute in Kenya setting out generally when Muslim law is applicable,
which leaves the court with a fairly wide discretion.
According to the Kadhi’s Court Act Cap 11 (Section 5 and 6) in the Kadhi’s courts the applicable
law is and has always been in practice Muslim law, but the law to be applied by the superior
courts is not well settled.
Kadhi’s Court Act Cap 11

Jurisdiction of Kadhis' courts.
5. A Kadhi's court shall have and exercise the following jurisdiction, namely the determination of
questions of Muslim law relating to personal status, marriage, divorce or inheritance in proceedings in
which all the parties profess the Muslim religion; but nothing in this section shall limit the jurisdiction of
the High Court or of any subordinate court in any proceeding which comes before it.
Evidence.
6. The law and rules of evidence to be applied in a Kadhi's court shall be those applicable under Muslim
law: Provided that -
i. all witnesses called shall be heard without discrimination on grounds of religion, sex or
otherwise;
ii. each issue of fact shall be decided upon an assessment of the credibility of all the evidence
before the court and not upon the number of witnesses who have given evidence:
iii. no finding, decree or order of the court shall be reversed or altered on appeal or revision on
20
account of the application of the law or rules of evidence applicable in the High Court, unless
such application has in fact occasioned a failure of justice.
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The difficulty faced by Kenyan courts in that respect manifests itself in the following two case
Fatima Binti bin Salim Bakhshuwen vs. Mohamed bin Salim Bakhshuwen
The issue touched on the validity of a wakf in Kenya. The dispute was litigated up to the Privy Council,
where the wakf was upheld on the basis that Islamic law in East Africa is the same as in India where the
institution of wakf is recognized. The Kenyan law was at the time silent on its legality in Kenya and there
was also insufficient authority on how to apply Muslim law to it.
(See also Anarali Museraza vs. Mohammedali Naserali Jiwa and Mussa Ayoob vs. Maleksultan Ayoob )
Shallo vs. Maryam

The issue was the applicability of the principle of the presumption of benami under Muslim law in
Kenya. The court held that the benami principle applied in Kenya, and, following Fatima Binti bin
SalimBakhshuwen vs. Mohamed bin SalimBakhshuwen(1949) 16 EACA 11, stated that the principle
applies in Kenya as it applies between Muslims in India, which appears to suggest that rules of Muslim
law in India are binding on Kenyan courts. The court observed that the effect of the transaction, the
subject of the dispute before the court, was not covered by the existing laws, including any written law
in force in Kenya
21
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LECTURE 3: 30TH SEPTEMBER 2013- 5.30-7.30PM (LECTURE HALL B5)
TOPIC 3: PROMISES AND AGREEMENTS TO MARRY

Introduction
Marriage is often preceded by a promise to marry and the first step taken in any marriage
relationship includes an agreement to marry. See Case vs Ruguru
Case vs Ruguru
It was held that matters appertaining to promises and preparation of marriages are cognizable by the
courts depending on the circumstances and also an action for breach of contract of a marriage may lie.
1. Agreements To Marry Under The General Law

An agreement to marry is said to exist at common law, which is part of the general law of Kenya,
when parties decide to get married and act in a manner that shows their intention to marry.
At common law, agreements to marry amount to contracts that are legally enforceable provided
it could be shown that the parties involved intended to enter into a legal relationship so that a
party who withdrew from such an agreement without any legal justification could be sued for
breach of contract and the injured parties could recover damages in an action for breach of
promise to marry.
A broken promise to marry is attended by many of the consequences of a breach of a
commercial contract. See Jane Nzisa Muinde vs. Lawrence Muthama Muindi
Jane Nzisa Muinde vs. Lawrence Muthama Muindi

It was held that the action for breach of agreement or promise to marry was recognized at common law,
and although the same has been abolished in England it remains the law in Kenya since it forms part of
the received common law of England.
a) Origins of the Action

The origin of the action for breach of promise of marriage is traced to the English ecclesiastical
courts, which exercised jurisdiction to order specific performance of promises to marry.
Later the action was held maintainable in courts of the common law which, possessing no
equitable jurisdiction to compel specific performance treated it as contractual for which the
proper remedy was damages.
The action was maintainable by the parties to the promise to marry; that is the man as well as
the woman.
b) Elements of the Agreement

A mutual exchange of promises to marry creates a binding contract.
The parties to the contract are the prospective spouses and not their parents see Vishram
22
Dhanji vs. Lalji Ruda

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Vishram Dhanji vs. Lalji Ruda

It has been held in that a parent cannot enforce a contract of child betrothal.
The promises may be made orally or in writing. See the Ugandan case of R. Larok vs. P. Obwoya
R. Larok vs. P. Obwoya

The promise was made in writing and the breach of the promise was also communicated in writing. The
parties were friends when the woman was a student 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 the
April of 1968. He later wrote to her indicating that he was no longer keen to marry her. The woman
then went to court and sued for breach of promise to marry and the lower court held that the man had
committed a breach of the promise and the woman was awarded damages. The court considered the
woman’s chances of getting married had been impaired and also the injury caused to her feelings. The
man appealed, but his appeal was dismissed.
The promises may be express or implied from the circumstances. The promises may be binding
even if conditional.
They may be conditional on getting a employment, reaching retirement, finishing education,
obtaining parental consent, the death of a parent, improving financial prospects and acquiring a
home, converting to another religion, settling a relative’s estate, among others.
The conditions however must not be contrary to public policy, and the courts have declined to
enforce promises to marry conditional on the death of the promisor’s spouse, on the grant of
divorce, or on the grant of a decree of nullity.
The courts have also declined to enforce promises to marry given in exchange for sexual
intercourse. Such promises were considered as promoting infidelity, sexual immorality and
crime. See Wilson vs. Carnley and Fender vs. St. John Mildmay
Wilson vs. Carnley

The court held promises exchanged by a couple one of whom is married does not constitute a valid
contract to marry, since such a contract would be illegal and contrary to public policy as it would tend to
undermine the marriage institution of a society that believed in monogamy.
Fender vs. St. John Mildmay

It was held that where a party to a petition for divorce exchanges a promise to marry a third person
after the pronouncement of the decree nisi of divorce a valid contract is made as at this stage there is no
hope of the parties remaining together and the marriage which is dead for all practical purposes cannot
be prejudiced by promises to marry.
Shaw vs. Shaw

The husband was already married when he exchanged promises to marry with another woman. He went
through a ceremony of marriage with the woman in 1938 and thereafter cohabited with her till 1952
when he died. His first and only legal wife had died earlier in 1950. Upon his death, the other woman
23
brought an action against his estate for breach of promise to marry her when he had capacity to do so in
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1950, and also for breach of warranty that the man committed between 1937 and 1950 by representing
to her that he had legal capacity to marry her. She was awarded damages equivalent to what she could
have obtained from the estate had she been in fact married to the man for two years
It would appear that the woman in Case vs. Ruguru would have succeeded in her case against
the man if she had anchored her claim on a breach of warranty committed by the man when he
misrepresented to her that he had the capacity to marry her. However she would have only
succeeded if she convinced the court that by their conduct they intended to contract a
monogamous marriage.
The party who refuses to marry the other party without lawful justification becomes liable in
damages.
Refusal to marry may be expressed orally or in writing and may also be implied from the
circumstances.
Failure to marry at the agreed time or within reasonable time may constitute a breach of
promise to marry.
Where a date for the marriage ceremony has not been set the court will infer that it is to take
place within a reasonable time.
A breach does not automatically arise with the expiration of the time for completion. A refusal
can be inferred from conduct, such as where a party pretends to have married the other.
Breach may occur even if the condition upon which a promise is based has not been met or the
date intended for celebration of the marriage has not passed.
Where there is a clear repudiation of the contract before the time set for completion, the
wronged party does not have to wait until the expiration of the completion date to sue.
Repudiation would occur where one party marries another person and thereby renders oneself
incapable of fulfilling the contract at a later date.
The repudiation of promise must be communicated to the promise, who must accept the
repudiation for there to be a breach of promise.
The death of the promisor does not bar the action.
c) Defences to the Action
The promisor may rely on any of the defences common to actions in contract, but there are in
addition certain defences peculiar to the action for breach of the contract to marry.
i. The promisor may raise the defence that they discovered that the female promised was
not chaste. It would appear that this defence is available where the woman is of a loose,
immodest and unchaste character, and it would not apply to a single act of sexual
intercourse repented of since.
ii. Mental or physical disability is also a defence, which disability comes to the knowledge
of the party after the promise.
iii. Impotence of a party and the development of abscess on the breast of another party
have been held to be valid defences.
iv. Insanity of either party occurring after the promise is a good defence, but insanity
occurring before the promise is not a valid defence.
Defences raising incompatibility have generally been viewed un favorably by the courts. The
24
party’s bad temper or use of obscene language or slight differences of opinion, frailties of
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Generally, it is immaterial that the parties are better off not married to each other.
Incompatibility, though, may reduce the innocent party’s damages.
d) Measure of Damages
Damages for breach of promise are awarded in lump sum.

The heads of damage may be separable into pecuniary and non-pecuniary.
i. Pecuniary Damages
The pecuniary heading awards damages to compensate the party for financial loss incurred in
reliance on the promise and also for loss of what they would have gained financially if the
marriage had taken place.
The injured party may have incurred expense in reliance on the promise being cried out.
They may moved or given up jobs or business or changed their position in some way.
Wedding plans may have been cancelled with resulting expense.
Where the party has been seduced under the promise of marriage the expenses of pregnancy
and childbirth would not be allowable as they do not flow directly from the breach and they
were also not reasonably within the contemplation of the parties at the time the promise was
made.
The court may award damages where the injured party’s prospects of marriage have been
impaired because of the broken engagement.
The party may have illegitimate children as a result of the relationship or may have spent several
years with the promisor and in the process age has reduced their marketability.
ii. Non-Pecuniary Damages
Non-pecuniary loss includes those items of damage to the injured party which cannot be readily
calculated in monetary terms, such as injury to their feelings.
This heading also includes punitive or exemplary damages, where the conduct of the guilty party
is particularly grave.
Compensation would be for wounded pride and injury to the innocent party’s feelings and
affect.
Damages will not be available for embarrassment, emotional hurt, humiliation, and injury to
reputation and health.
The party’s inability to face their family is factor considered in assessing damages, feelings of
family and friends is not compensable.
The conduct of the parties is relevant in assessing damages. Breaking off an engagement
suddenly and without warning is an aggravating circumstance, and so is an attempt to injure the
innocent party’s reputation.
Aggravated or exemplary damages are available where the promisor seduces the other party
under promise of marriage, infects them with a sexually transmitted disease or is guilty of
duplicity or deceit.
e) Gifts exchanged during Engagement

Persons engaged to marry often exchange gifts.
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When the engagement breaks the ordinary rules governing property and gifts apply.
Gifts given during an engagement may be absolute or conditional depending on whether they
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were given in contemplation of marriage or not.

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Absolute gifts, such as Christmas presents, are given irrespective of the contemplation and they
are not returnable.
Conditional presents, such as the engagement ring, are returnable as they are given conditional
upon the marriage taking place.
However, whether they are to be returned or not depends on who is at fault. If the engagement
is terminated by mutual agreement, the conditional gifts must be returned.
The party responsible for the breach is not entitled to a return of the conditional gifts made to
them.
The innocent party should not convert the property of the party at fault which is in their
possession but which were not gifts.
Fault will be irrelevant with respect to gifts from third parties conditional on the marriage taking
place, such as wedding gifts, these must be returned.
Property purchased for the intended use of both parties during the marriage should be returned
to the purchaser regardless of fault.
Where both parties contributed to the purchase of an item, the same will be regarded as being
held on trust in the proportions in which each of them contributed.
f) Alternative Remedies
Various alternative remedies are available to a person who has incurred damages as a result of a
broken engagement. For example
i. They can assert rights to property pursuant to a constructive trust in cases where the parties
have lived together for a while and acquired some property jointly.
ii. Compensation for services rendered or goods transferred may also be had in actions for
quantum valebator quantum meruit.
iii. The tort of deceit lies where the innocent party is misled for financial gain or monetary
advantage.
iv. If unknown to the innocent party, the other party is already married, an action for breach of
warranty of capacity to marry may be brought against the guilty party or his estate.
v. An action for assault and battery lies where the deceit by the guilty party leads the innocent
party to engage in sexual intercourse with him.
vi. A contract to pay expenses may exist independently of the promise to marry, so that the
innocent party is entitled to recover expenses incurred in reliance on the promise to marry.
Being essentially a contractual relationship, all the usual contractual requirements must apply,
that is as to capacity, consent, and intention to create legal relations, among others. All these
must be met before one can allege that there has been a breach of that contract.
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. See Cohen vs. Seller
Cohen vs. Seller

The gift in question was a diamond engagement ring that had been given to the woman and the issue
was whether she should return the ring when the engagement was broken. It was held that if it was the
man, who was guilty, or responsible for the breach, then he could not demand the return of the
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engagement ring but if it was the woman who had refused to fulfill the conditions of the agreement
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then she was required to fulfill the conditions of the ring. It was found that it was the man who had
refused to carry out his promise and the woman was awarded general damages and was allowed to

FAMILY LAW-GPR 305
keep the engagement ring.
g) Penal Sanctions
The Penal Code reinforces the common law. Section 170 of the Penal Code makes it an offence
for any person to wilfully and by fraud cause a woman who is not lawfully married to him to
believe that she is lawfully married to him and to cohabit and have sexual intercourse with him
in that belief. It attracts the penalty of imprisonment for ten years. See James Ochieng Ndekere
vs. Republic
2. Agreement to Marry Under Customary Law

Under customary law the agreement to marry normally take the form of a betrothal.
The nature of the betrothal will differ between the different communities whereby for some
communities it is quite an elaborate formal ceremony while for others it is a family affair with a
few witnesses.
The agreement under African customary law takes place between the families of the parties and
not the parties themselves.
The effect of a betrothal under customary law is that on the part of the woman she loses her
sexual freedom and cannot have any sexual or any relationship with any other man. On the part
of the man he is under an obligation to pay the bride price.
On the part of the family, the family of the woman is bound to give away their daughter and is
under an obligation to keep her chastity while the family of the man is under an obligation to
pay the bride price.
It has been held that under African customary law an action for breach of promise to marry will
not lie in the event of a breach of the agreement or promise to marry occurring.
Customary law does not treat the promises to marry the other under customary law or
betrothals as contracts.
A person who has agreed to marry another under customary law can bring the betrothal to an
end without fear of being sued like would be the case under the common law or Hindu law.
Customary law does not recognize an action for breach of promise to marry.
According to Cotran betrothal does not give the parties rights which they did not have prior to
the coming into effect of the betrothal.
Betrothal has different legal consequences from its common or received law counterpart,
engagement or contract or agreement to marry.
One key distinction between betrothals and agreements to marry is that parents are parties to
the betrothals but not the contracts to marry.
The position regarding agreements to marry has been stated in a long line of decisions by the
High Court, such as in Jane Nzisa Muinde vs. Lawrence Muthama Muindi
Jane Nzisa Muinde vs. Lawrence Muthama Muindi
It was stated that the action for breach of agreement to marry was recognized at common law, but it
will not lie in customary law as there was no action for breach of promise to marry under customary
27
law. In the matter it emerged that the woman had been seduced and impregnated by the man, and the
court said that she or her parents ought to have availed themselves of the remedies set out in the
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Magistrates Courts Act, which include actions for damages for seduction and pregnancy compensation.

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However, it is presumed that persons whose personal law is customary can chose to regulate
their affairs in accordance with the general law, and can exchange promises to marry under
statute and generally conduct their affairs in a way suggesting that they intend to have a
monogamous union.
Where they conduct their affairs in such manner, chances are that the court will infer from the
promise and conduct that their promises were not betrothals but contracts to marry under
statute.
There is a thin line here, where the courts are usually called upon to make a choice of law
between customary law and the common law. The courts would usually use the mode of life
test when deciding whether parties have by their conduct removed themselves from the
operation of their customary law and brought themselves under the common law. See In the
Ugandan case of Larok vs. Obwoya
Larok vs. Obwoya

An Acholi woman, whose customary law did not treat betrothals or promises to marry as contracts to
marry sued an Acholi man for breach of promise to marry her. The court was forced to decide whether
the applicable law was Acholi customary law or the common law. It used the mode of life test to find
that the common law was the applicable law. It was found that the woman was a Christian and the
agreement to marry was in writing. From these facts the court deduced that the parties intended to
contract a monogamous marriage, which is governed by statute law, and therefore the received
common law relating to promises to marry applied. The court then proceeded to award damages to the
woman. If the court had upheld the Acholi customary law she would have received nothing.
In the event of a termination of a betrothal or failure of the intended marriage to take place, the
gifts given to the woman’s family must be returned.
The explanation for this rule is based purely on contractual terms. Where the marriage
transaction falls through there would be failure of consideration.
The parties’ expectations would not be met, and consequently the parties have to be returned
to the position they occupied before the betrothal or before they entered into the contract.
It is a case of being restored to the status quo ante by having the gifts returned.
This could be on account of one party renouncing the other, or dying before the completion of
the marriage contract, or the woman getting pregnant by another man, or the woman being
found to be incapable of having sexual relations, among others. See the following two cases;
Re Estate of Wakaba (Deceased)

It was held that an action for breach of promise to marry would lie where parties who is already married
promises to marry another person and keeps the other party in the dark as to their marital status so as
make them believe they were not married).
Samwel Mwaura vs. James Muchiri
It was held that it is the head of the woman’s family who should be sued in a suit for refund of dowry.
The court held that though dowry is voluntarily given it was in respect of anticipation of a marriage
28
which did not materialize and the same is refundable. One must however prove the amount given out
and the person who received it.
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3. Agreement to Marry under Islamic Law

Under Islamic law agreements to marry are entered into between the parents of the intended
spouses.
Which means that until the contract to marry and the actual marriage takes place; no
contractual obligations arise as between the intended spouses. Therefore no suit for breach of
agreement to marry can be instituted.
Gifts or ornaments that have been exchanged between the two families can be returned if the
agreement to marry is broken. See Fazaldin Satardin vs. Din Mohamed and Hajra Begum
Fazaldin Satardin vs. Din Mohamed and Hajra Begum
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 he also sought an injunction to restrain her from marrying
any other man until he had recovered all his damages and the gifts he had given. It was held that a
betrothal to which one of the persons whose marriage was contemplated was not a party would not be
enforced, and parents have no authority to contract for the marriage of their children whether they
profess the Mohammedan religion or not. Further held that the plaintiff was entitled to sue for the
presents he had given and money spent in contemplation of marriage but he cannot recover anything
for moral and intellectual damages.
Farhana d/o Zafarulla Khan and Another vs. Mohammed Shafiq Quresh(1997) eKLR,
It was held that under Muslim law the marriage gifts a man gives to his prospective wife belong to her as
well as the gifts acquired by the wife before or after the marriage. Further held that a marriage is s
special contract but not an economic transaction and to claim reimbursement of the expenses incurred
in the staging of a marriage which eventually fails is to attach an economic element to the contract of
marriage and is contrary to public policy. To allow such a claim is tantamount to giving parents of the
spouse the right of monetary investment in the marriage of their children.
4. Promises to Marry under Hindu Law

Hindu law recognizes an action for breach of promise to marry.
The effect of this is that where a Hindu man or woman whose affairs leading to marriage are
governed by Hindu law, exchanges promises to marry and later one of them decides not to
marry the innocent party would be entitled to claim damages for the breach of contract to
marry from the guilty one.
The principles governing the promises to marry under Hindu law are similar to the position
under the common law.
5. The Future
The trend in other jurisdictions has been to go the customary and Islamic laws way, where no
actions lie for breach of a promise to marry.
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The alternatives are: revising the common law action by prohibiting recovery on one or more of
the heads of damage, abolishing the action for breach of promise to marry, and abolishing the
action and prohibiting the use of alternative remedies for the same purpose.
This action has been revised or abolished in England, Canada, Australia, New Zealand and
Ireland.
The English Law Reform (Miscellaneous Provisions) Act of 1970 provides that an agreement
between two persons to marry one another does not have effect as a contract giving rise to
legal rights and no action lies in England and Wales for breach of such agreement. This
legislation also abolished the action for breach of warranty that the defendant was able to
marry, which is a valuable remedy where the claimant is an innocent party in a void marriage.
The New Zealand law is the Domestic Actions Act of 1975 which stipulates that an agreement
between two persons to marry each other does not amount to a contract and that the action for
breach of promise of marriage has been abolished.
The Kenyan law should similarly be amended to abolish the action.
The main reason for abolition of the action of breach of promise is that an engagement is not
viewed as a contract in the strict sense of the word.
In a majority of cases the parties do not enter into any form of formal agreement whether orally
or in writing.
In some instances they may enter into formal agreements to marry, some in writing, which are
meant to be binding.
Often parties are forced to change their respective positions to marry.
They may move to another country or region within the same country, give up careers, leave
friends, or take some other substantial step in reliance on an unenforceable promise.
Either way it is considered undesirable to make exceptions, but to generally outlaw the action.
The other consideration is social change, the present day social conditions are vastly different
from what they were in England during the nineteenth century.
The position and circumstances of the modern woman are also totally different from those of
the woman of the past century, in terms of what she stands to lose when she loses a
prospective husband. (See the Australian Case of Willis vs Harris)
There is the point that the action provides an excellent opportunity for blackmail.
It also inhibits persons from withdrawing from unsuitable engagements, and thereby forcing a
party who has foreseen future unhappiness to choose between the unhappy marriage and a suit
for damages.
It is also doubted whether the law of damages, which was developed in a commercial context,
should be applied to such an intimate social relationship as marriage.
Regarding determination of property rights of the parties after the abolition of the action,
various jurisdictions have adopted different approaches.
This is with respect to dealing with property acquired or exchanged after the making of the
promise, as well as expenses incurred on account of the promise.
The English approach, embodied in the Law Reform (Miscellaneous Provisions) Act of 1970, is to
provide that the law governing determination of questions relating to the property of engaged
couples is the same as the rules governing division of property as between married couples.
The law eliminates consideration of fault in determining who is entitled to gifts conditional on
marriage. It makes the engagement ring an absolute gift.
The New Zealand Domestic Actions Act of 1975, has the general principle that the parties should
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be returned to their pre-engagement positions, and, like English law, fault is not to be taken into
account.
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In Ireland, the Family Law Act of 1981 provides that gifts between the parties are presumed to
be conditional, and therefore returnable upon the termination of the engagement.
Other property acquired during the period would be subject to the rules applying to married
couples.
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LECTURE 4-6: 7TH -21ST OCTOBER 2013- 5.30-7.30PM (LECTURE HALL B5)
TOPIC 4: MARRIAGE UNDER THE DIFFERENT STATUTES

1. MARRIAGE UNDER THE GENERAL LAW
Introduction
The Statutes on Marriages in Kenya
The general law of marriage is embodied in several statutes.
These include the following 5 pieces of legislation:
i. The Marriage Act Cap 150
ii. The African Christian Marriage and Divorce Act CAP 151
iii. The Matrimonial Causes Act, Cap 152
iv. The Subordinate Courts (Separation and Maintenance) Act Cap 153
v. The Maintenance Orders Enforcement Act Cap 154
These pieces of legislation contemplate the English style of marriage and they therefore embody
the English law of marriage.
They cater for both the Christian and civil marriages, where the Christian marriage would be
celebrated in a church ceremony presided over by a minister of religion who is authorized in law
to do so, while the civil marriage would be conducted at the registry of civil marriages by a duly
qualified marriage registrar.
i. The Marriage Act
This provides for both civil and Christian marriages.

Marriage under this Act may be entered into by any persons, since there is no requirement of
religion or other qualification for contracting the marriage envisaged under the Act. See Fannuel
vs Lemama
Fannuel vs Lemama
It was held that a Muslim woman and a Christian can validly marry under the Act.
It contemplates a monogamous marriage.

An African Christian couple can marry also under the Act.
Conditions Relating To Capacity
(a) Marital Status

Both the Marriage Act and the African Christian Marriage and Divorce Act reflect the inherited
English law provisions and are strictly monogamous.
Under the Acts polygamy is prohibited.
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Section 11 (1) (d) of the Marriage Act provides that neither of the parties to a marriage should
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be married under African Customary Law or in accordance with Mohammedan law to any other
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Under Section 49 whoever contracts a marriage under the Act, being at the time married in
accordance with native law or custom or in accordance with Mohammedan law to any person
other than the person with whom a marriage is contracted, is guilty of an offence and liable to
imprisonment for a term not exceeding five years.If a person having contracted marriage under
the Marriage Act, contracts a marriage in accordance with native law or custom during the
continuance of such marriage that person is guilty of an offence and liable to imprisonment for a
term not exceeding five years.
These Sections make polygamy illegal. Such act would constitute the offence of bigamy under
Section 171 of Penal Code which defines the offence of bigamy as going through a ceremony of
marriage when having another husband or wife living and the first marriage has not been
rendered void by a court of law.
Section 35 (1) of the Marriage Act provides that no marriage in Kenya shall be valid where
either of the parties at the time of the celebration of such marriage is married by native law or
custom to any person other than the person with whom such marriage is had.
These provisions are designed to support the monogamous system of family law. See In the
Matter of the Marriage Act and Alfred Nderi
In the Matter of the Marriage Act and Alfred Nderi

A woman who was a wife married under customary law prevented, through lodging a caveat, her
husband from contracting a marriage, under the law that governs monogamy, with another woman
while the customary marriage was subsisting.
Both English and Kenyan cases reiterate that statutory marriages are required to be
monogamous.
The parties must be single meaning they can either be single, divorced or widowed.
In English law a marriage is the voluntary union for life of one man and one woman to the
exclusion of all others. This requirement is traceable to Christianity which once strongly
influenced the English values.
In Hyde vs. Hyde and Woodmanse a marriage will be void if at the time of marriage either party
is already lawfully married to another person.
LK vs. CK, K v K, Marriage Act Section.42.Whoever, being unmarried, goes through the
ceremony of marriage with a person whom he or she knows to be married to another person
shall be liable to imprisonment for a period not exceeding five years.
Section 3 of the Marriage Act and the other Sections that outlaw bigamy.
Hyde v. Hyde The case provides the classic definition of marriage “Marriage under Christendom
is the voluntary union for life of one man and one woman to the exclusion of all others.” See the
Kenyan Case of K vs K
K vs K
In 1970 the petitioner went through a form or ceremony of marriage with the respondent, at the District
Commissioner’s office, Nairobi. At the time, the respondent was married to one Grace Waiyaki Kang’ara
in accordance with Kikuyu customary law. That marriage had never been dissolved or annulled but was
still subsisting. Counsel for the petitioner argued that under the Matrimonial Causes Act, under which
the petition had been brought, a monogamous marriage is the union of one man and one woman to the
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exclusion of all others and as such if there existed another marriage contracted under customary law,
this one was null and void. The court held that only a monogamous marriage could be created by a
ceremony under the Marriage Act and as the husband was already married, the ceremony was valid and
created no marriage status. Therefore the respondent had committed adultery with the co-respondent.
And decree nisi was granted.
There were rulings that where a person is already married they cannot contract a statutory
marriage. In both cases the men had married under Kenyan Customary Law and it was held that
they had no capacity to contract a marriage under statutory law. See the following cases
Matheka vs.Matheka
It was held that where a statutory marriage subsists, a party to it cannot enter into another contract of
marriage (even customary) because he lacks capacity. A judicial separation cannot flow from such a
union.
R.S vs. S.S & Another

It was held that only a monogamous marriage can be created by a ceremony under the a Marriage Act
and since the husband was already married , the ceremony was invalid and created no marriage status
and therefore the husband had committed adultery with the second ”wife” decree nisi was issued. The
husband in this case was earlier married to another woman under the Sikh ceremony under Hindu
Marriage Divorce and Succession Ordinance which was potentially polygamous.
Re Ogola’s Estate
It was held that if a man married under the marriage act purports to marry another wife under
customary law it is not a valid marriage under customary law or otherwise. The court stated that an
African man is not obliged to marry under the Marriage Act or the African Christian Marriage And
Divorce Act but, if he chooses to do so, he is choosing the Christian way of life which recognizes one wife
only. Under Luo custom, an illegitimate child is entitled to inherit a share of his/her father’s property.
It was also held that the provisions of the Marriage Act apply (except as otherwise provided to all
marriages celebrated under the African Christian marriage and divorce. That a person is incapable under
the Marriage Act Section 37 to contract any valid marriage (whether customary or otherwise) so long as
his original marriage subsisted.
It was also held that if a man married under the Marriage Act purports to marry another wife under
customary law the marriage under customary law would not be a valid marriage. The court stated that
an African man is not obliged to marry under the Marriage Act or the African Christian Marriage and
Divorce Act, but if he chooses to do so, he is choosing the Christian way of life which recognizes one wife
only
(See also Re Ruenji’s Estate)
Biatamganga vs Lennox Mgangaziro

The husband was married under customary law then contracted a civil marriage and court held that they
34
had no capacity to solemnize a monogamous marriage during the subsistence of a lawful polygamous
marriage. Further held that a petition for divorce based on such a marriage is incompetent.
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Re the Estate of Joakim Makokha Ochieng

Held that pursuant to section 37 of the Marriage Act the deceased lacked capacity to marry under
customary law having been married under the African Christian Marriage & Divorce.
Teresiah Wambui Kiiru vs John Gitahi Kiiru

Held that where a person has contracted a statutory marriage that person lacks the capacity to contract
any other marriage including a customary marriage.
Damaris Wangechi Kariuki vs. Damaris Ndusya

It was held that a person having solemnized a Christian marriage was not competent to enter into a
customary marriage.
Pauline Ndete Kinyota Maingi vs Rael Kinyota Maingi

Held that a person married under KAMBA customary law could only lawfully contract another marriage
according to KAMBA customary marriage whose procedure a marriage is potentially polygamous but
could not contract another marriage under statutory law.
I
However, by virtue of the Marriage Act and the African Christian Marriage and Divorce Act, a
person who had previously contracted a statutory marriage cannot, during the subsistence of
the said marriage, contract marriage under customary law with another person.
This position has been stated in a number of cases. See Re Ogola’s Estate; Re Ruenji Estate;
Glady’s Njeri vs. Beth Wanjeri .
See also Pauline Ndete Kinyota Maingi vs. Rael Kinyota Maingi
See also In Biata Mganga vs. Lennox Mgangaziro.
Compare with Case vs Ruguru
Case vs Ruguru
The court appeared not to consider seriously the fact that the man, who was married under statute and
that marriage was still subsisting, had no capacity to contract marriage under customary law. The court
was more preoccupied with establishing whether or not the purported customary law marriage
complied with the requirements of customary law or not. It held that since the ngurario ceremony was
not performed there was no valid customary marriage, instead of simply finding that the man had no
capacity to marry the woman at customary law.
Section 3(5) Law of Succession Act
The effect of this requirement is however diluted by section 3(5) of the Law of Succession Act
(Cap 160 Laws of Kenya), which provides that a woman who is married under a system a law
which allows polygamy, such as customary law, to a man who had previously contracted a
marriage under statute and therefore did not have capacity to marry another wife under either
customary or Islamic law, was nevertheless a wife for the purposes of succession. The children
of such a relationship are also children for the purposes of inheritance.
35
This provisions reverses the decisions in Re Ruenji’s Estate , Re Ogola’s Estate and Gladys Njeri
vs. Beth Wanjeri ;where the High Court had held that the deceased person having contracted a
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customary law lacked capacity to marry such customary law wives, and therefore no customary
law marriages existed and that the women so married were not wives and they and their
children were not heirs and could therefore not inherit from the deceased man’s estate.
This means that a marriage that un-recognized during the man’s life will be given recognition
under the Law of Succession Act after his demise.
(b) Gender of the parties

The first condition is that the parties must be biologically man and woman.
This is found under common law as a requirement. See Corbett vs. Corbett
Corbett vs. Corbett

In this particular case the parties went through a ceremony of marriage at the time of the marriage the
petitioner knew that the respondent had been registered at birth as being of the male sex and had
undergone a sex change operation and since that operation 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 a person of the male sex or alternatively for a decree of nullity on a
decree of non consummation of marriage. It was held among other things that marriage is essentially a
relationship between a man and a woman the respondent having been a biological male from birth
rendered the so called marriage void. It was held that the Respondent was incapable of consummating
the marriage and that it was a nullity.
See also In the Canadian case of Re Notth and Matheson
Re Notth and Matheson

The court declined to allow two males who claimed to be married to each other to have their marriage
registered. It was held that a marriage is a union of people who are man and woman biologically.
See also Re D (An Infant)
Re D (An Infant)
The court was asked to allow sterilization of a girl who the mother and doctor feared might bear
children with abnormalities. It refused to allow this holding that a woman’s right to reproduce is a
fundamental right which can only be taken away with her consent. These cases demonstrate how the
English law as introduced in Kenya prevents the subversion of the marriage institution by rejecting
attempts to redefine marriage as it is universally known as union of male and female.
Right now there is a lot of controversy on the issue of definition of marriage with some states
allowing gay marriages.
Our draft bill to amend the constitution has also gotten into trouble with this issue because it
implies that there can be same sex marriages and they have decided to amend it to read
marriage as a union between man and woman. See Biatamganga vs. Lennox Mgangaziro
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(c) Age
Parties must be of age to contract a statutory marriage.

Section 35(2) of the Marriage Act provides that a marriage shall be null and void if either party
to it is under the age of sixteen years at the time of the celebration of such marriage age.
This requirement is based on the English estimation of when men and women have the ability to
shoulder the stresses of the married life.
There are however still some conditions when it comes to age but minimum age is 16.
See in Pugh vs. Pugh
Pugh vs. Pugh

A man of over 16 years married a girl aged 15 years and it was held that that marriage was void and in
his ruling the judge gave the reasons by stating 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.
The common law allowed parties to marry upon reaching puberty, which meant fourteen for
men and twelve for women.
Section 19 of the Marriage Act -If either party to an intended marriage, not being a widower or
widow, is under eighteen years of age, no license shall be granted or certificate issued unless
there is produced, annexed to the affidavit referred to in section 11 of this Act, a written
consent to the intended marriage signed by the person having the lawful custody of any such
party.
The Age of Majority Act Cap 33 Laws of Kenya is relevant here. Section 2 of the legislation
provides that a person is of full age and ceases to be under disability by reason of age upon
attaining eighteen.
However, the provision does not affect the provisions of the Marriage Act with regard to age at
which persons may marry.
The result is that an eighteen year old may enter into contracts and make a will, but cannot
marry without parental consent.
The explanation for the anomaly is that the Age of Majority Act was intended to come into
force at the same time with the failed Law of Matrimony Act.
(d) Prohibited Decrees of Relationships

The law prohibits marriage between persons who are closely related by reason of relationship
by way of consanguinity or affinity.
Relationship by consanguinity is where the parties have blood relationships and affinity is
relationship by way of marriage.
Marriages between blood relatives are regarded as incestuous and are prohibited for health and
in breeding reasons.
In breeding produces imperfect stock and that is why these marriages are prohibited.
Prohibitions based on affinity are designed at preventing tensions in the extended family,
37
especially during moments of marital strife, and they are also founded on the ever changing
concept of decency.
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Section 35 (1) of the Marriage Act provides that no marriage in Kenya shall be valid which, if
celebrated in England, would be null and void on the ground of kindred or affinity.
The act therefore refers us to English Law as related to the prohibited decrees.
This English Law is found in the first schedule of the UK Marriage Act of 1945.
This schedule gives a list of what are the prohibited relationships and in that list a man may not
marry his mother, including step mother and mother in laws or adopted mothers, his daughter,
including step daughters, daughters in law and adopted daughters.
He cannot marry his sisters including step sisters, grandmother including step grandmother, he
cannot marry his granddaughter including step granddaughters, and he cannot marry his aunts
or his nieces.
The woman likewise may not marry her father, step father, father in-law and adopted father,
son, step son, son in law, grandfather, grandson, uncles and nephews all these include step and
adopted.
Under English law the list does not prohibit marriage between cousins.
Incest is it a crime in Kenya? See section 166(1) of the penal code. 166. (1) Any male person
who has carnal knowledge of a female person who is to his knowledge his granddaughter,
daughter, sister or mother is guilty of a felony and is liable to imprisonment for five years even f
there was consent.
Section 167 of Penal Code. Any female above the age of sixteen years who permits her
grandfather, father, brother or son to have carnal knowledge of her (knowing him to be her
grandfather, father, brother or son, as the case may be) is guilty of a felony and is liable to
imprisonment for five years.
Requirements as To Formalities
The formalities of marriage under the Marriage Act are similar to those under English law.
(a) Notice
Prior publicity is required. Parties who seek to get married under statutory law must give notice
of their intention to get married to a government official, designated the registrar of marriages,
in the marriage district within which he resides.
The notice is given by one of the parties to the intended marriage and must be in prescribed
form.
When giving notice the parties must attach an affidavit stating the following;
i. That at least one of the parties has been resident within that district for at least 15 days;
ii. That the parties have attained the age of 21 years but if the parties range between 16 and
21 years they must attach a consent in writing from their parents or guardians;
iii. That they are not related in any way i.e. by blood or marriage; and
iv. That they are not married to any other person under any law at the time of issuing such
notice.
These requirements are contained in Section 8, 10 and 11 of The Marriage Act.

The registrar is required to enter the notice into a marriage notice book that he maintains and
which is open for inspection by the public.
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He is also required to publish that notice by affixing a copy of the notice outside his office until
the marriage certificate is issued to the parties or until three months have elapsed.
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.
In special circumstances the minister responsible for marriages may issue a license for a
marriage ceremony to be conducted without notice.
Any person who may have any just cause why the marriage should not take place may enter a
caveat against the issue of the registrar's certificate, by writing the word "forbidden", opposite
to the entry of the notice in the marriage notice book, and append his name and place of abode,
and the grounds upon or by reason of which he claims to forbid the issue of the certificate.
If such a caveat is entered the registrar shall not issue his certificate until such caveat is
removed.
The person who places the caveat then appears before a judge or a magistrate whereby he is
required to show why the marriage should not take place and the decision of the court in this
regard is final.
See the following cases
In the Matter of the Marriage of Alfred Nderi and Charity Kamweru,

The man gave notice of his intention to marry and a caveat was then placed by the respondent in both
cases claiming that the man was already married to the respondent and therefore had no capacity to
contract the intended marriage. In Nderi’s case two caveats were entered and it was held that it was
common knowledge that the man had in fact been married to the two caveators under Kikuyu
customary law and while one of the marriages had been dissolved the other one had not. It was further
held that the registrar of marriages should not issue the certificate of marriage because the man did not
have capacity to marry under statutory law.
In the Matter between E.L and E.C

The caveat or claimed that she had eloped with a man and therefore he had no capacity to marry
another woman it was found that the formalities under customary law to contract a marriage had not
been met and especially the consent of her family to that marriage had not been given and therefore
she could not invalidate the intended marriage because she did not have a marriage with the man and
the caveat was thus removed from the notice book.
If the registrar is satisfied of certain matters; including the absence of any impediment of
kindred or affinity, that neither party is married to some other person under customary or
Islamic law and is satisfied that no caveat has been registered, he may issue a certificate of
compliance and in that certificate indicate that a marriage should take place within three
months of the notice being given.
If the marriage does not take place within the 3 months, then the notice and all proceedings
consequent to that notice shall be void and if the parties still intend to get married, fresh notice
must be given.
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The role of the registrar is sometimes performed by church ministers whereby rather than give
notice at the registrar’s office the church minister announces in the church which the parties
attend that the parties intend to get married better known as bans of marriage and this is a
recognize and valid way of publishing the notice to get married.
MARRIAGE ACT CAP 150

Notice of marriage
8. (1) Whenever any persons desire to marry, one of the parties to the intended marriage shall sign and
give to the registrar of the district in which the party giving such notice resides a notice in the prescribed
form.
(2) If the person giving such notice is unable to write or is insufficiently acquainted with the English
language, or both, then it shall be sufficient if he places his mark or cross thereto in the presence of
some literate person, who shall attest the same, which attestation shall be in the prescribed form.
Notice to be entered in marriage notice book and published.

10. (1) Upon receipt of such notice, the registrar shall cause the same to be entered in a book, to be
called the marriage notice book, which may be inspected during office hours without fee.
(2) He shall also publish such notice by causing a copy of the same to be affixed on the outer door of his
office, and to be kept exposed there until he grants his certificate as hereinafter provided, or until three
months have elapsed.
Issue of registrar's certificate.

11. (1) The registrar, at any time after the expiration of twenty-one days and before the expiration of
three months from the date of the notice referred to in section 8 of this Act, shall, upon being satisfied
by affidavit that-
(a) one of the parties has been resident within his district for at least fifteen days preceding the issue of
the certificate; and
(b) each of the parties to the intended marriage (not being a widower or a widow) is twenty- one years
old, or that, if either party is under that age, the consent hereinafter made requisite has been obtained
in writing and is annexed to such affidavit; and
(c) there is no impediment of kindred or affinity or any other lawful hindrance to the marriage; and
(d) neither of the parties to the intended marriage is married by african customary law or custom or in
accordance with Mohammedan law to any person other than the person with whom such marriage is
proposed to be contracted, issue his certificate in the prescribed form.
(2) The affidavit required by subsection (1) of this section may be sworn either before the registrar or
before a magistrate.
(3) The registrar or magistrate taking such affidavit shall explain to the person making the same what are
the prohibited degrees of kindred and affinity and the penalties which may be incurred under this Act.
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[Section 6 (1) Cap 151] The Minister may license any minister to celebrate marriages under that
Act, and may at any time cancel such license.
Notice of the granting or cancellation of such licenses must be published in the Gazette.
Any minister celebrating a marriage under [cap 151 must be licenced.
The African Christian Marriage and Divorce Act Cap 151

Marriages to be performed only by licensed ministers.
6. (1) The Ministers may licence any minister to celebrate marriages under this Act, and may at any time
cancel such licence; and notice of the granting or cancellation of such licences shall be published in the
Gazette.
(2) Notwithstanding any provision to the contrary in the Marriage Act no minister shall celebrate any
marriage under this Act unless licensed by the *Minister under subsection (1) of this section
(b) Consent
Marriage is consensual, a right which is recognized by international instruments such as the
International Covenant on Civil an Political Rights (See Article 23) which states that no
marriage is to be entered into without the free and full consent of the intending spouses.
The requirement logically flows from the recognition of the dignity of the individual.
If parties are below 21 years of age consent in writing from parents or guardian is required.
One can however apply to the high court to grant consent where a person required to give
consent to marry under age has refused to give consent and the court may consent to the
marriage.
[Section 22 Marriage Act.] [Under section 8 (1) cap 151] In case there is no parent or guardian
in any particular case capable of consenting, a minister celebrating the marriage upon being
satisfied after due inquiry that the marriage is a proper one may consent in writing to such
marriage.
In such cases the minister is deemed to be a registrar of marriages for the purpose of such
consent.
If any person whose consent is required refuses his consent, a magistrate of a subordinate court
of the first class may upon application consent to the marriage, and the consent of the
magistrate so given shall have the same effect as if it had been given by the person whose
consent is so refused. [Under section 8 (2) cap 151]

Consent by Supreme Court
22. If any person whose consent to a marriage is hereby required refuses his consent, the Supreme
Court may, on application being made, consent to the marriage, and the consent of the Court so given
shall have the same effect as if it had been given by the person whose consent is so required.
The African Christian Marriage And Divorce Act Cap 151

Consents.
8. (1) Where the consent of any person to the intended marriage is necessary, the minister to celebrate
the intended marriage shall be deemed to be a registrar of marriages for the purpose of such consent;
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and, if there be no parent or guardian in any particular case capable of consenting, such minister upon
being satisfied after due inquiry that the marriage is a proper one may consent in writing to such
marriage.
(2) If any person whose consent is required refuses his consent, a Provincial Commissioner may, on
application being made, consent to the marriage, and the consent of the Provincial Commissioner so
given shall have the same effect as if it had been given by the person whose consent is so refused.
See Re Bennet
CASE 46
Re Bennet
A 16 year old girl sought an order to dispense with her parental consent to her intended marriage and
the court refused to give that order insisting that consent must be given for the marriage to proceed.
See also H vs. H
Unlike under customary law where the authority and role of parents in the arrangements for
marriage of their children is central, under the general law this has been shaken by the foreign
idea that of contract, where marriage is seen as a contract, being a legal relationship between
two parties only.
This means that parents cannot enter into marriage negotiations as they do under customary
law.
See In Fazaldin Satardin vs. Din Mohammed and Hajira Begum
Fazaldin Satardin vs. Din Mohammed and Hajira Begum

It was held that a betrothal to which one of the persons whose marriage was contemplated was not a
party would not be enforced, and that parents have no authority to contract marriage for their children
whether they are Muslims or not.
Principles of law have therefore put parents out of contracts of marriage, and have ruled out
compulsion into marriage, although what happens in practice may differ vastly from the theory.
(c) Celebration of the Marriage
The requirements about celebrations are found in Sections 23 – 25 of the Marriage Act.
CELEBRATION OF MARRIAGE
Conditions for celebration of marriage.

23. Marriages may be celebrated in any licensed place of worship by any recognized minister of the
church, denomination or body to which such place of worship belongs and according to the rites and
42
usages of marriage observed in such church, denomination or body, or with the consent of a recognized
minister of the church, denomination or body to which such place of worship belongs by any recognized
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FAMILY LAW-GPR 305
observed in the church, denomination or body to which such last mentioned recognized minister
belongs, provided that the marriage is celebrated with open doors between the hours of 8 o'clock in the
forenoon and 6 o'clock in the afternoon, and in the presence of two or more witnesses besides the
officiating minister.
Marriage not to be celebrated if impediment, nor without licence,
24. A minister shall not celebrate any marriage if he knows of any just impediment to such marriage, nor
until the parties deliver to him the registrar's certificate or the Minister's licence.
Where minister may celebrate marriage
25. A minister shall not celebrate any marriage except in a building which has been duly licensed by the
Minister, or in such place as the Minister's licence may direct.
The Marriage must be celebrated by a licensed person either a registrar of marriages or a church
minister.
The marriage should also be celebrated in a licensed place, that is either at the office of the
registrar of marriages or a licensed place of worship.
Under cap 151 a marriage may be celebrated under that in any place of public worship, whether
or not such place of worship is licensed under section 7 of the Marriage Act.
[See section 5 cap 151] Again this is the registrar’s office or in a church though there are certain
exceptions.
The marriage should take place between 8 am and 6 pm in public and in the presence of two
witnesses.
However if the marriage is being celebrated in the registrar’s office it should take place between
8 am and 4 p.m.
Section 24 provides that if the person celebrating that marriage knows of an impediment in
respect to that marriage then he shall not celebrate the marriage.
Under Section 31 of the Marriage Act, the Minister in charge of marriages may authorize a
marriage to be celebrated in a different place upon request and he may also authorize a licensed
person to celebrate that marriage.
Marriage not to be celebrated if impediment, nor without licence

24. A minister shall not celebrate any marriage if he knows of any just impediment to such marriage, nor
until the parties deliver to him the registrar's certificate or the Minister's licence.
Marriage under Minister's licence
31. Whenever the Minister's licence authorizes the celebration of marriage at a place other than a
licensed place of worship, or the office of a registrar of marriages, the registrar of the district in which
such marriage is intended to take place, upon the production of such licence, shall deliver to the person
producing the same a blank certificate of marriage in duplicate, and the minister or registrar celebrating
such marriage shall fill up such certificate, and observe strictly all the formalities hereinbefore
prescribed as to marriages in a licensed place of worship or registrar's office, as the case may be.
(d) Registration
After compliance with all the requirements the parties and the marriage has been contracted
the parties are issued with a marriage certificate.
43
They are required to sign the marriage certificate in duplicate and their signatures must be
witnessed by two or more witnesses.
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The minister, having also signed his name to the counterfoil, is required to deliver one certificate
to the parties and transmit the other to the registrar of marriages for the district in which the
marriage takes place within seven days for the entry of the marriage into the relevant marriage
register.
The African Christian Marriage and Divorce Act

The African Christian Marriage and Divorce Act modifies the requirements of the main Marriage
Act in several ways, where at least one of the parties is a Christian.
This legislation governs marriages where the parties are Africans.
Such marriages may be celebrated in any place of public worship, whether or not it is licensed
for the performances of such marriages.
The formalities in the Marriage Act related to secure publicity for the proposed marriage are
substituted by the African Christian Marriage and Divorce Act with the formalities which are
preliminary with respect to an African Christian; provided that the presiding minister of religion
is satisfied that adequate notice has been given.
The Act also provides a special form whereby a customary law marriage may be converted into a
binding monogamous marriage; but the spouses must in fact contract a marriage under the Act
and comply with the formalities set out in the Act.
The Act was designed to enable Africans married under customary law to convert those
marriages so as to bring themselves under the general law.
One of the perceived advantages of this conversion is that it allows widows to run away from
the practice of widow inheritance which is prevalent under customary law.
Under section 13 of the African Christian Marriage and Divorce Act an African woman married
under this law attains majority in widowhood and is not bound to cohabit with a brother of her
deceased husband or any other relative of the deceased, and she is entitled to maintenance for
herself and her children of such marriage from her husband’s relatives.
It would appear that a widow can leave her husband’s heir and still enjoy maintenance from
him.

Status of African Christian widows.
13. (1) Any African woman married in accordance with the provisions of this Act or of the Marriage Act
or of the Native Christian Marriage Act (now repealed) whether before or after the commencement of
this Act, shall be deemed to have attained her majority on widowhood, and shall not be bound to
cohabit with the brother or any other relative of her deceased husband or any other person or to be at
the disposal of such brother or other relative or other person, but she shall have the same right to
support for herself and her children of such marriage from such brother or other relative as she would
have had if she had not been married as aforesaid.
(2) Any such woman shall upon the death of her husband become the guardian of any children of the
marriage, and shall, so long as she remains a Christian, continue to be the guardian of such children until
such children, if males, attain the age of sixteen years, or, if females, attain the age of sixteen years or
marry, and shall be competent to dispose of such children in marriage, but in such event the customary
bride price shall on demand be paid to such person as is entitled thereto by native law and custom.
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What may be referred to as the African Christian marriage may be contracted under either the
African Christian Marriage and Divorce Act or the Marriage.
It also referred to the marriage that is contracted traditionally, that is under customary law, but
is subsequently converted to a Christian marriage under section 9 of the African Christian
Marriage and Divorce Act or under section 11 to 35 of the Marriage Act, after the parties to
that marriage have converted to Christianity.
Some commentators have questioned the convertibility of customary or Islamic marriages as
contemplated by sections 11 to 35 of the Marriage Act.
It is still unclear who a Christian is for the purposes of the law applying to African Christians after
contracting marriage in church either under the African Christian Marriage and Divorce Act or
the Marriage Act.
The Kenyan courts have not yet been called upon to decide on that point. Although many
Kenyan Africans, particularly the middleclass, are marriages in church under the African
Christian Marriage and Divorce Act or the Marriage Act, and many more, after contracting
customary law marriages, are converting them into statutory marriages by going through a
marriage ceremony in church, these are really not Christian marriages since there is little
evidence that the persons going through such ceremonies desire to lead a truly Christian as
opposed to a truly African way of life.
See Esther Karimi vs. Fabian Murugu
Esther Karimi vs. Fabian Murugu

The court in this matter emphasized that Christian marriages in African societies are preceded by certain
traditional customs, such as payment of dowry and getting together by both sides.
Mairura vs. Anginda

The issue was whether a legal husband, having married under the African Christian Marriage and
Divorce Act, had the right to custody of children born to his deserting wife in a purported customary
marriage entered into by the wife seventeen years earlier. The wife had deserted him and had one
illegitimate child the purported to marry someone else under customary law and had eight children with
the purported customary law husband. The legal husband had at some point sought custody of his three
children with the wife, but he did not enforce the orders for several years. The court took note of this
failure by the husband to enforce the orders and held that he was only interested in collecting the
anticipated dowry. The court awarded custody to the wife. The wife was not condemned by the court
for her second marriage, which was illegal as she had no capacity to contract it, noting that her legal
husband had himself illegally married other three wives after separating from her.
The issue that faced the court was whether the woman was still legally the wife of the first man, and if
she was whether the man was entitled to custody of the children she had with the second man. The
court avoided the issue touching on the validity of the statutory marriage and the status of the man and
the woman vis a vis that union and held that it was the woman who was entitled to the custody of the
children.
45
the said marriage, contract marriage under customary law with another person. This position
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In Re Ogola’s Estate it was held that if a man married under the Marriage Act purports to marry
another wife under customary law the marriage under customary law would not be a valid
marriage. The court stated that an African man is not obliged to marry under the Marriage Act
or the African Christian Marriage and Divorce Act, but if he chooses to do so, he is choosing the
Christian way of life which recognizes one wife only.
In Pauline Ndete Kinyota Maingi vs. Rael Kinyota Maingi it was held that a person married
under Kamba customary law could only lawfully contract another marriage according to Kamba
customary law which allows polygamy, but could not contract another marriage under statutory
law.
In Biata Mganga vs. Lennox Mganga Ziro the husband was married under customary law then
contracted a civil marriage with another person and the court held that he had no capacity to
solemnize a monogamous marriage during the subsistence of a lawful potentially polygamous
marriage.
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2. MARRIAGE UNDER CUSTOMARY LAW
Introduction
The notion of marriage in customary law is different from that recognized by the general law.
It is regarded as a matter for the families concerned rather than the state.
It is created by family agreement and it is terminable in the same way.
Customary law generally recognizes a much wider range of prohibited degrees of relationship,
and marriage payments are usually an essential feature of customary law marriage. Customary
law generally permits a husband to marry an unlimited number of wives.
It is rather difficult to ascertain the customary laws relating to marriage and divorce within
Kenya but such laws do exist and they are effective and enduring.
Their vitality is exhibited by the degree to which they continue to be followed even by those
who also choose to contract marriage in the Christian form.
There is no general statutory control or regulation of marriage and divorce according to
customary law nor is there any nationwide system of registration of such marriages or divorces.
The conventional African customary law marriage comes into existence between a man and a
woman both of who have capacity to marry and complied with the formalities laid down by their
customary law.
Customary law varies from community to community, but research has shown that there are
certain basic principles which are common to nearly all the customary law systems in operation
in Kenya.
The merits of some of these common features of the customary marriage are under severe
attack.
Essentials of a Valid Marriage

(a) Age
The parties need not be of a specific age, but a person is normally required to have reached the
age of puberty before he or she can enter into marriage.
This requirement that each of the parties must have reached puberty is based on the view that
when people have the biological ability to be parents they should enjoy human autonomy and
be free to marry.
Although biologically persons who have reached puberty may be capable of living together as
husband and wife they really are too young to shoulder the obligations that come with
marriage.
Early marriage is often a hindrance to progress and cause of instability in marriage.
Traditionally however such very young couple remains under the care of their parents.
Betrothal of children, particularly girls, was common in the past and it occurs occasionally to
date.
Under Customary law what matters is not the age of the parties but whether they have gone
through an initiation ceremony.
These initiation ceremonies differ from community to community. In most cases it would
47
circumcision for both parties.

The age will depend upon the age when the initiation ceremony takes place in the given
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The ceremony marks passage into adulthood. The initiation requirement has however
diminished in its significance in modern society, particularly as communities these days frown
upon the circumcision of girls.
Where it is recognized it is practiced more as a theoretical requirement rather than legal one.
In traditional society marital life is state that is taken seriously and for that reason the initiation
of boys and girls serves the purpose of anatomically preparing them for marriage.
In the initiation ceremonies education on aspects of education are given to the initiates by
elders.
On the physical aspect of initiation the boys are circumcised while the girls undergo
clitoridectomy.
A party who has not undergone these rites would have difficulties getting a marriage partner,
and where they do succeed in marrying the said marriage would in the strict legal sense be a
voidable marriage.
However although the intiation rites for the men have not been affected by legislation, indeed
there has been no opposition to it compared with the case for girls, it would be appear to be
unlawful to compel a man to undergo the rite without their consent.
Under customary law sons have a right to family resources to assist in marrying and in such
cases where the sons are dependent on family resources they would be entitled to marry in
order of their seniority.
The basis for this is that marriage payments are usually made from a limited fund of family
wealth which requires replenishment from time to time and usually after daughters have been
married.
The effect of this is that younger sons have to wait until their seniors have married.
In polygamous settings, seniority would not necessarily be by age, in some communities where
seniority of wives is recognized the oldest son of the senior most wife will be entitled to marry
before any of his half-brothers by his stepmothers, even if they were older.
(b) Marital status
The man may be single or married since customary law allows polygamy.
However, women are required to be single and for most African communities, single here
means unmarried, since those who had married previously but have been widowed are not
considered as single.
At customary law marriage is coincided with the marriage of the woman so that once one
married they are considered forever married whether they are subsequently divorced or
widowed or not.
This rule that the woman should not be married to another man at the time of the customary
marriage comes to being is meant to prevent polyandry which is largely alien to African custom
and tradition.
This rule however does not appear to have had envisaged the situation that arose in the case of
See Omwoyo Mairura vs. Bosire Anginda above.
See also Omondi vs. Chuma Nyafula and Another.
Omondi vs. Chuma Nyafula and Another.

The man sued the woman’s father and her cousin (the man she was living with) seeking a return of the
48
woman, being his wife, and of the children. He had eloped with the woman and stared living with her as
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man and wife, and thereafter paid part of the dowry payable under customary law. The woman later left
him and began to cohabit with her cousin, who also paid part of dowry to her father. They were blessed

FAMILY LAW-GPR 305
with a child and appeared to be happily married. The first man still insisted that he was lawful husband
of the woman hence the suit. The court declined to find for the first man on the ground that he had
failed to pay dowry in full. In the opinion of the court the woman’s father had consented to his
daughter’s marriage to the first man on condition that the main paid the entire dowry. The court here
clearly upheld the functioning marriage and failed to consider that dowry is never paid in full at once
and whether the union with the second man did not result in polyandry which was not recognized in
customary law.
the said marriage, contract marriage under customary law with another person. This position
has been stated in a number of cases.
See Re Ogola’s Estate ; Pauline Ndete Kinyota Maingi vs. Rael Kinyota Maingi and Biata
Mganga vs. Lennox Mganga Ziro discussed above
(c) Consent
Traditionally, African marriages are regarded as a private matter for the families concerned, not
a public matter for the state or central authorities.
The emphasis is on consent and agreement, consent is required from both the woman and the
man and their families.
Although child betrothal is still practiced in parts of Kenya, Such as among the Kisii, Kuria,
MijiKenda, Taveta, Nandi, Kipsigis, Keiyo, Marakwet, Tugen, Pokot, Teso and Luo the consent of
both partners is necessary in the formation of the marriage.
See In the case of Mwagiru vs. Mumbi
Mwagiru vs. Mumbi

A man sought a declaration that there was a valid subsisting marriage between him the woman under
Kikuyu customary law. The woman 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 man for a short time but claimed that she had been forced into doing so by her father. She also
claimed that she had gone through a civil marriage ceremony with another man after she escaped from
the first man and that she was in fact married to the second man and not to the first man. It was held by
the court that the consent of the bride is necessary at the two ceremonies which are vital in Kikuyu
customary marriages, and on the evidence, the woman was not present and consenting at any of these
ceremonies and the man had therefore failed to prove his case.
The consent of the parent or guardian was in the recent past a mandatory requirement for a
valid marriage.
Presently, although parental consent is still important, it is hardly ever regarded as an essential
to the validity of the marriage.
Socio-economic factors made parental consent much more important than that of the parties
themselves.
49
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For the woman, although parental consent has considerably diminished in its importance, it is
still considered, by the woman, as a vital requirement given that the woman goes back to her
parents in the event of the marriage failing and it is important that she remains on excellent
terms with her family.
The object of the customary law marriage is a harmonious and fruitful relationship, which is
allowed to grow over a period of time.
If a dispute arises between a married couple the adjudicating authorities would usually be more
concerned to reconcile the parties that to apply the precise rules to their problems.
Customary law is elastic and this is why it has survived so strongly to the present day.
This harmonious relationship makes the consent of the both families and the parties an
important requirement.
Where the man is marrying more wives, who are in addition to the first wife, the first wife’s
consent is not required.
See In the Matter of the Estate of Alfred Imujaro Para
In the Matter of the Estate of Alfred Imujaro Para

The court stated that according to Teso customary law, marriage takes place after man notifies the
father of the woman that he has chosen through his close friends, girl’s father invites the boy’s father to
his home and agreement is reached boy’s father sends cows to the girls father then discussions are
made on the amount of marriage consideration and the method of payment, the girl is then escorted to
the husband’s home after the last meeting. Court held that consent of the first wife is not necessary for
a marriage with the subsequent wives. Further held, as there has been no dowry returned there was no
divorce.
(d) Prohibited Degrees Of Relationships
Insofar as capacity is concerned the parties should not marry within the confined degrees of
consanguinity and affinity but the degrees differ from community to community.
Each community recognizes groups of relatives between whom marriage is prohibited, but
between whom it does occur on occasion if the individuals concerned have only a distant
relationship or are willing and able to defy traditional ideas of exogamy.
Some communities will allow marriage between blood relatives while others will not.
For example among the Luhya and Luo a man may marry his wife’s sister even when the wife is
still alive, a Teso may take over his late father’s wife in a polygamous household while in other
communities this is a taboo.
There are small groups of relations between whom marriage is effectively prohibited.
Generally, the range of prohibited degrees is peculiar to each African community, is ill-defined
and is in a state of flux.
The degrees of prohibition however are much wider than the range of prohibitions applicable to
statutory marriages.
This latter position means that there is a possibility of conflict where couples who would not
qualify to marry each other under customary law would opt out for a statutory marriage which
may in any event not be recognized by their community. This requirement as regards prohibited
degrees has identical objectives to the general law.
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Formalities in a Customary Law Marriage
The formalities of customary law marriages in Kenya are still almost entirely those derived from
the traditional unwritten law.
As observed elsewhere customary law is extremely flexible and dynamic, and it keeps changing
all the time.
This means that the precise formalities of the customary law marriage change from time to time
and they differ from one Kenyan community to the next.
It is however characterized by certain stages. The various stages of the marriage formation are
characterized by negotiations between the families of the parties, initially through family
intermediaries who test the ground before the parents from both sides participate.
The importance of negotiations is agreement on the marriage payments to be made by the
bridegroom.
The general pattern is that the suitor’s proposal is made either directly or indirectly to the
woman, a report is then made to the parents, parental talks follow, a portion of the marriage
gifts is made, followed by a betrothal ceremony, which is then followed by the marriage
ceremony which brings about the existence of a conjugal home.
There is considerable festivity and ceremonial acts, some of which signify the start of the actual
marriage.
The ceremonies serve the same purpose they do under the general law.
Among the Kikuyu it is the performance of the ngurario. See the following cases
Gituanja vs.Gituanja
It was held that the existence of a marriage is evidenced by the performance of the ngurario.
Case vs. Ruguru

The court held that under the Kikuyu customary law there can be no valid marriage if the ceremony of
ngurario has not been performed.
This decision is bad law. There was evidence that the man was married under the Marriage Act and that
marriage was subsisiting. That being the case he had no capacity by virtue of section 37 of the Marriage
Act to contract another marriage under customary law. The court should have resolved this dispute on
the basis that any purported marriage under customary law would have be null and void for lack of
capacity. The foray into nature and consequences of Embu customary law was unnecessary.
Muigai vs.Muigai
It was held that there was a customary marriage since dowry had been paid and customary ceremonies
(ngurario) had been performed. These decisions contrast with Wanjui vs. Wanjui where the parties had
cohabited for seven years and within that period got four children, the man paid of the dowry payable
under customary law, but the ngurario ceremony was not performed. The court found that the ngurario
ceremony was not necessary for a valid Kikuyu marriage.
Peter Hinga vs. Mary Wanjiku

The court found from evidence that there was a marriage under customary law. The parties cohabited
between 1963 and 1974, and then separated. They had six children together who were named the way
51
children of married people are named under Kikuyu customary law. There was evidence that the man
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met relatives of the woman, arranged to pay dowry and in fact paid part of it. The woman sought an
order that she was no longer bound to cohabit with him, for custody of the children and for

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maintenance. The man alleged that she was not married to him as he had not paid dowry and ngurario
had not been performed, but he admitted the cohabitation and that he paid school fees for the children.
The court held that a customary law marriage existed since the same comes into existence with the
payment of symbolic dowry, a goat and a sheep. The decision is not sound there was no valid customary
law marriage due to lack of the ngurario ceremony. The court should have presumed marriage from
prolonged cohabitation. It would appear that this case tends towards the thinking that presumption of
marriage is not altogether alien to customary law.
Zipporah Wairimu vs. Paul Muchemi

A woman sought declarations that she was the sole guardian of the children of the cohabitation. She
had cohabited with a man from 1963 to 1969 when he deserted her and left her with the minors. The
parties cohabited with the consent of their parents, and the man had paid part of the dowry payable
under Kikuyu customary law. She came to the relationship with a child from another relationship, but
she got three with the second man. The man also paid the symbolic dowry of a goat and a ram. The
court found that all that are necessary for a valid Kikuyu marriage are the payment of the symbolic
dowry and the consent to the marriage of both parents and the prospective spouses and that in this
case the parties were man and wife under customary law.
Among the Luo, it is the presentation of the gonjoroya heifer to the bride by the parents of the
groom, and to the Nandi it is the tying of the segutiet grass on each other’s wrists of the
spouses.
To the Kamba it is the kuthea ceremony. See the following cases
Geofrey Kimeu Mkimithi vs. Matheka Nzioki and Another
It was held that in Kamba marriage ceremonies, the goats of ntheo precede ngasya (bride price), then a
muthoko (a big feast) in the home of the woman to be married. In this case the three occasions were
present and court held that there was a valid marriage.
In the Matter of the Estate of Alfred Imujaro Para
The court stated that according to Teso customary law, marriage takes place after man notifies the
father of the woman that he has chosen through his close friends, girl’s father invites the boy’s father to
his home and agreement is reached boy’s father sends cows to the girls father then discussions are
made on the amount of marriage consideration and the method of payment, the girl is then escorted to
the husband’s home after the last meeting.
Essentially a customary law marriage commences or comes into existence when cohabitation
starts, and therefore this reflects the concept of time in existence.
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Marriage Payments
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They are customarily preliminary to marriage, but they should be distinguished from other
preliminary, betrothal or consolation gifts which are not essential to the validity of the
customary marriage.
The marriage gifts or payments are variously referred to as dowry, bride price, bride-wealth,
marriage gifts or marriage consideration.
These English terms do not accurately define the practice for what it meant it traditional society
since most of them have the connotation of a sale, yet that is not what they represented.
Dowry is particularly off the mark as it refers to the property that the wife brings with her to the
marriage. A variety of definitions exist of this concept.
One definition is that it is a customary gift made by a husband to or in respect of a woman at or
before marriage.
The other refers to any gift or present in any kind of property whatsoever to a parent or
guardian of a female person on account of the marriage of that person which is intended or has
taken place.
It is also the cattle or other property handed over by a prospective bridegroom to the father or
other male relative of a girl whom he intends to marry.
Or simply the amount fixed in the marriage contract for payment by the man to the girl’s family
before the marriage can take place.
The gifts take various forms according to each society.
In modern times it takes the form of cattle, crops and material things in general, including cash.
It is considered the most vital element in the marriage transaction, in fact the very life of the
marriage itself as well as its termination in the event of dissolution.
It is regarded as the stabilizing factor in marriage. Indeed, it is the very foundation for a valid
marriage.
The delivery of the gifts is a condition sine qua non before a customary marriage can be
considered as valid.
The acceptance of the marriage gifts usually serves as conclusive evidence that the family of the
woman has consented to the marriage, so that they would be estopped later from denying it.
That was the case in Case vs. Ruguru where the issue for determination was whether there
was a valid customary marriage between the plaintiff and the defendant. The defendant called
her father to testify that he had received gifts from the plaintiff, in her effort to establish the
existence of the customary marriage.
The gifts also serve as the registration of the customary marriage. The act of giving the gifts is
overt and notorious, involving too many people and therefore an impossibility to deny the same
later.
The gifts are symbols, comparable to the wedding rings in the case of statutory marriages. They
also serve to cement the bond bringing the two families together. See the following cases
CASE
Joyce Atemo vs. Mary IpaliI Mujaro
It was held that it is a notorious fact, which the High Court and the Court of Appeal are entitled to and
can take judicial notice of, that no valid marriage can be contracted without the payment of marriage
consideration.
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Lucy Wambui Maina vs. Dickson Muhia Mutty and 2 Others

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It was held that since no bride price was paid, no customary Kikuyu marriage was celebrated between

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the parties
Mary Wanjiku Gachigi vs. Ruth Muthoni Kamau
Where it was held that the existence of customary marriage had not been proved since the people who
allegedly received the dowry for the marriage were alive and none of them had been called as witnesses
nor did the objector call any other person except her mother in law yet she claimed to have been
married for 21 years.
The court further held that since no bride price was paid, no customary Kikuyu marriage was celebrated
between the parties. It also held that there was presumption of marriage between the parties since they
had cohabited for three years. It was further held upholding the decision in Njoroge vs. Njoroge&
Another that under Kikuyu customary law responsibility for the burial of a man falls in the first place on
his eldest son or his brothers but the wife can participate and attend the burial.
Amulan Ogwang vs. Edward Ojok
A father sought damages from a man who had seduced his daughter and made her pregnant. The man’s
defence was that he was married to the woman in accordance with Acholi customary law. It transpired
however that he had not delivered gifts to her family in full. It was held that under the relevant
customary law the girl is not validly married until full bride-price is paid. Damages were awarded to the
father.
The marriage payments follow the betrothal ceremony. The quantum of the payments due
differs from from community to community. In some communities the amount is fixed.
Among the Taveta it is a fixed amount of one cow, three female goats, two bulls and a house for
the bride’s father.
In other communities the payments are in general fixed, but what is paid is subject to
negotiation and agreement.
To the Kisii it depends on how educated the woman is and this determines the rate paid. It is
also dependent on the social status of the families involved, so that there is likelihood of paying
a higher amount where one marries from prominent families.
The exact form and amount of dowry often depends on the specific attributes of the woman.
The beauty or physical appearance of the woman is irrelevant when computing the amount of
gifts to be delivered. What is normally be considered include the experience of the woman at
housework, her level of education, her general behavior, whether she had been married
previously, whether she’s had a pre-marital pregnancy by the man marrying her or by another
man, the social, economic and educational standing of both families, among others.
There is no specific time within which the payments are to be paid. The practice is that the
marriage payments are never made at one go in a single installment, rather the total is
liquidated in payments over a flexible and usually a long period of time. For most communities,
the marriage transaction is spread over a period of years. See Philip Ratemo Buge vs. Marcella
Mamboleo and 6 others
Philip Ratemo Buge vs. Marcella Mamboleo and 6 others

It was held that the payment of dowry is not the most overriding ingredient of a valid Kisii customary
54
law marriage. Non payment of dowry does not invalidate an already existing marriage under Kisii
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for the payment of the dowry or part payment to regularize the marriage. Further dowry can be paid
after the marriage has been in existence, payment can be made initially and the balance can be paid any
time thereafter, there is no specific time when dowry should be paid.
Philip Biegon& Another vs. Joseph Kipngeno Chepkwony

Stated that for a marriage under Kipsigis Customary Law to be considered valid dowry must be paid in
form of livestock. The court held there was no valid marriage where no such dowry was paid and the
lady continued staying at her parents’ home after the celebration of the said marriage.
Saitenui vs. Maiba

The court rejected the husband’s plea to have custody of all the children born to his wife with a lover
after she deserted him as being contrary to justice and morality and held that his action was founded on
the selfish intention of getting entitlement to anticipated dowry. The court however wrongly reasoned
that the legal husband had forfeited his rights when he failed to complete the initial bride price. Failure
to complete payment of dowry is not a ground for vitiating a customary law marriage.
Bride price is paid as a token of mutual appreciation for the bride. It is a way of thanking the
parents of the girl for not only bringing up the girl but also for allowing the boy’s family to take
her away and it is also compensation in the sense that the woman’s family are being
compensated for the progeny that would go to the man’s family with the daughter as well as for
the loss of the woman as a member of her family.
The notion today that these gifts amount to buying a wife is recent in origin. The making of
marriage payments or giving of property is not really necessary for the marriage to be legally
binding.
The gifts serve the purpose of showing that the parents of the woman have consented to the
marriage and therefore the union is legally binding.
They thus are the evidence of the fact of the legality of the marriage, a symbol to seal the
marriage contract.
It is also seen as the security for the maintenance of the marriage by both families and for the
good treatment of the wife. It forms the general part of the transaction in which emphasis is on
the formation of an alliance between the families.
Children are closely tied with the bride price and the return of bride price is determined by who
will have custody of the children.
The giving of marriage gifts has the function of the legitimization and filiations of the children of
the marriage.
By this process the man or his family become entitled to the legal custody of the children, which
he fathered either within or without wedlock, and those that he has no fathered with his wife,
whether within or without wedlock.
Upon divorce, among the Kikuyu the children go to the father unless he demands the return of
the marriage gifts in which case they go to the mother provided the gifts are returned in full. See
the following cases
Karuru vs. Njeri

The court did not find this custom repugnant to justice and morality or inconsistent with any written
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law.
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James Njuguna Kangiri vs. Mary Wanjira Njuguna

Held that Kikuyu customary law of marriage and the steps taken thereto are not static and must have
undergone tremendous change but one feature that has remained constant is that of payment of
dowry. Ngurario ceremony is a culmination of various ceremonies but lack of this ceremony may not
necessarily lead to a finding of no marriage if other ingredients such as capacity, consent, and payment
of dowry are proved. Court held it was upon the wife (respondent) to call witness to prove that the
husband (appellant) paid dowry and since this was not done the court found there was no evidence to
prove marriage.
In most African societies where this custom is common church ministers presiding over Christian
marriages will usually not proceed unless and until satisfied that all the customary rites,
including exchange of marriage gifts, have been satisfied. This of course raises pertinent legal
issues as the practice appears to mix two usually exclusive legal regimes.
In marriages celebrated under statute the presiding officer would not at the exchange of vows
mention the gifts as forming an essential part of the marriage contract.
The result is that the parties end up with two marriage contracts, upon under the statutory law
and the other under customary law.
Under which one will the legal incidents of marriage be determined? Would both contracts be
enforceable before a court of law? In the event of a decree of divorce would the gifts be
returnable?
The institution of bride price has been criticized and as it is also recognized that it may be
subject to abuse.
The introduction of a cash economy into African societies especially has exposed the practice to
abuse.
There is the perception that the father of the bride makes inflated demands of money of its
equivalent. Often marriages are postponed on this account.
The bride’s father may also choose to give his daughter to the man who gives him the best
terms.
This often does not coincide with the interests if the daughter and it may lead to unpleasant
results such as suicide.
In some jurisdictions in Africa there has been intervention by the state by way of legislative
regulation of the practice. See Mairura vs. Anginda
Mairura vs. Anginda

The issue was whether a legal husband, having married under the African Christian Marriage and
Divorce Act, had the right to custody of children born to his deserting wife in a purported customary
marriage entered into by the wife seventeen years earlier. The wife had deserted him and had one
illegitimate child the purported to marry someone else under customary law and had eight children with
the purported customary law husband. The legal husband had at some point sought custody of his three
children with the wife, but he did not enforce the orders for several years. The court took note of this
failure by the husband to enforce the orders and held that he was only interested in collecting the
anticipated dowry. The court awarded custody to the wife. The wife was not condemned by the court
for her second marriage, which was illegal as she had no capacity to contract it, noting that her legal
husband had himself illegally married other three wives after separating from her. Such double-decker
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marriages are still fairly common in Kenya.

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The other issue regarding marriage gifts is whether they are in consonance with current
international instruments concerning the status and rights of women.
There is a sense in which they are seen as compromising the dignity of the African woman. It
would appear it discriminates against women, and is contrary to the United Nations Declaration
on the Elimination of Discrimination of Women.
The existence of the custom demands the subservience of the woman, and operates in a system
which gives third parties (her parents or relatives) a near decisive role in her marriage. It
appears to perpetuate the traditional African attitude that women are inferior to women and
therefore objects of male domination.
Polygamy
The other important feature of the African customary law marriage is that it is potentially
polygamous.
The statutory recognition of marriages contracted under native law and custom has the direct
effect of recognizing polygamous marriages.
The man has capacity to marry as many wives as he wishes.
There is no requirement that the first wife be notified of the proposed marriage before or after
it takes place. Neither does she have a right to protest the intended marriage.
The husband is under no obligation to declare the new marriage to the other wife or wives, and
he may never tell her or them about it.
A wife married under customary law has no control whatsoever over the man’s right to convert
an otherwise monogamous marriage into a polygamous one, neither can she control the
number of wives the husband marries. Conversely, the customary laws of all the African
communities in Kenya, a woman can only marry one man during the subsistence of a valid
marriage.
There are various reasons for the practice of polygamy.
1. It could be a wealthy person’s (whether male or female) display of their riches, their
ability to pay bride price for several wives and being able to support a large family of
many wives and children. In a word polygamy is used by some people as a display of
wealth. Sometimes the wealthy person seeks trusted persons to protect and secure
their vast wealth, and therefore marrying many wives is seen as a way of getting
persons who acquire a vested interest in the rich person’s property and thereby
preserve and protect the same from strangers.
2. It is also resorted to where a couple does not have children and does not want to adopt
any, or where the wife has daughters only and the husband desires to get children of
the male gender or where the wife is unable to bear the number of children which the
husband desires and he therefore decides to have more children by marrying another
wife.
3. It is also an alternative to divorce, so that instead of dissolving the marriage for
irreconcilable differences or for any of the recognized reasons in African customary law,
polygamy is used. Rather than sending away the wife with whom the man has
disagreed, he takes another wife and lets the first wife be and thereafter he maintains
the children of that first wife.
4. Generally polygamy tends to result in large families, which is a necessary social
insurance system, a stabilizing tool in traditional society.
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5. Marrying many wives is seen by traditional society as a reflection of a man’s social

responsibility.
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6. In some communities, traditionally, it was taboo to cohabit with a woman who had
reached menopause, and therefore the man had no alternative once his wife reached
this stage in her life.
7. There exist important socio-economic considerations that called polygamy into
existence. Kenyatta, J., Facing Mount Kenya, Heinemann, Schools ed., Nairobi, 1971, 94,
says that among the Kikuyu the qualification to hold high office was traditionally based
on family and not on property. A man with a large family was seen as the one with
capacity to look after the interests of the larger community.
The Kenyan law allows Africans to contract polygamous or potentially polygamous marriages
according to customary law so long as they are not already married under the Marriage Act or
the African Christian Marriage and Divorce Act.
Section 3(5) of the Law of Succession Act, however weakens the effect of this requirement.
Section 3(5) provides that a woman who is married under a system a law which allows
polygamy, such as customary law, to a man who had previously contracted a marriage under
statute and therefore did not have capacity to marry another wife under either customary or
Islamic law, was nevertheless a wife for the purposes of succession. This provision enables the
practice of de facto polygamy, where the additional wives do not acquire the legal status of wife
during the lifetime of the man, but upon his death.
There is also the practice by men who are married under statute cohabiting with other women
without going through any ceremony of marriage or going a ceremony which does not have the
effect of creating a valid marriage.
In some instances such liaisons are recognized by the courts as valid marriage by way of
presumption of marriage out of a prolonged cohabitation of the parties.
It would also appear that non-Africans can contract polygamous or potentially polygamous
marriages, so long as they conform to the requirements for a valid customary law marriage.
However, where the non-African has contracted a monogamous marriage and he seeks to
contract a customary marriage thereafter during the subsistence of the monogamous marriage
he would certainly be caught up by section 37 of the Marriage Act, and the decisions in Re
Ogola’s Estate ;Re Ruenji’s Estate and Gladys Njeri vs. Beth Wanjeri Nyeri would apply to the
marriage (See Case vs Ruguru).
It is expected that Kenyan courts would follow the English decision in Cheni vs. Cheni
concerning the recognition of foreign marriages. It would appear that any person who has
contracted a monogamous marriage anywhere in the world will not be able to contract a valid
customary law marriage.
The prevalence rate of polygamy in Kenya is unknown since there is no legal requirement for
registration of customary law marriages in general and polygamous marriages in particular.
The government Women’s Bureau in 1991 estimated that 30% of marriages were polygamous.
It would be erroneous to assume that most customary law marriages are polygamous. In fact
many customary law marriages are monogamous. They are however treated as potentially
polygamous as there is no bar to the husband marrying another wife or other wives as additions
to the first wife.
The practice of polygamy is seen as wrong. Its recognition exposes women to treatment as
second rate citizens who enjoy fewer rights than men.
Consideration apparently is not given to the effect of polygamy, especially to the first wife, in
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terms of tangible deprivation of material and sexual satisfaction, and also intangible values such
as diminution in self esteem.
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Polygamy appears to allow one spouse to fundamentally change the quality and the nature of
the couple’s family life together, depriving the other spouse of the same right.
It often leads to a situation where the wives have to compete for scarce resources, and in fact it
is blamed for the high rate of illiteracy in many parts of Africa and the numerous battles
following the event of the man’s death for the control of his estate.
The institution of polygamy is often defended on the ground that it is natural to Africa.
Suggesting its abolition is therefore viewed as senseless, since the same is so essentially part of
the African way of life that it cannot be wiped out so easily, so entrenched it is that it is
practically impossible to discard.
This argument is however not tenable given that in many jurisdictions polygamy has been
successfully banned (US, Egypt, Tunisia, Algeria, Morocco, Iraq, Pakistan, India etc).
Needless to say that a majority of African marriages, those contracted under customary law are
monogamous. One interesting justification for polygamy is that it reduces the incidence of
prostitution in society, by ensuring that the excess women in the population secure husbands.
This is founded on the statistics which appear to suggest that at any given time in society there
are more women than men in the population.
Other Marriage Arrangements
There are other practices under customary laws which are akin to and which are in fact
recognized by some commentators as types of marriage.
Most of these are practical arrangements that are made following the death of a spouse with a
view to accommodating the needs of the surviving spouse or in the event of childlessness.
The rationale behind these arrangements is that when a spouse dies the surviving spouse is left
with the normal human desires common with all human being, which must be met or satisfied.
In some of these arrangements the persons involved would mainly be seeking personal
immortality through having children carry forth their names.
The institutions of wife inheritance, levirate unions, sororate unions, woman to woman
marriages and forcible marriages should be seen in this context.
i. Wife inheritance, otherwise called widow inheritance, is where a widow is inherited by a
brother of the deceased or any other relative, with the objective of giving protection and
maintenance to the widows and to protect family property within the family since the heir steps
into the shoes of the deceased husband. The heir acts as the representative of the deceased
husband and he therefore takes the widow as his wife.
ii. The Levirate Union is where the wife has a relative of the deceased husband acting as her
husband for all purposes. This practice is common among the Kikuyu, Kamba, Meru, Tharaka,
Kisii, Kuria, Taita, Nandi, Kipsigis, Keiyo, Marakwet, Tugen, Maasai and Luo.
iii. The Sororate Union is where a sister of the deceased wife replaces her dead sister as a wife.
This is especially the case where the dead woman has children; she can be effectively replaced
by her sister who is already well known to the widower and her late sister’s children. This sort of
arrangement is common among the Luhya, Kisii, Teso and Luo.
iv. The Forcible Marriage, which really is a misnomer, practiced mainly by the Nandi and Kipsigis,
involves parents preventing their only daughter or one of their daughters from marrying in cases
where the couple does not have male children, and hopes to have a male heir through their
daughter.
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v. The Woman to Woman marriage occurs where a husband dies leaving a childless widow, who is
past childbearing age, the widow may marry a wife. It can also occur when the husband is alive
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husband taking a second wife the wife herself may marry another woman in the woman to
woman marriage arrangement in the hope of getting children through the woman. It is also a
common practice among childless single women or single women who beget daughters only
who subsequently get married leaving their mother all alone. The wife pays bride price to the
family of the woman selected and generally satisfies all the customary law marriage
requirements; and may arrange for a man from her husband’s age set to have intercourse with
her. Children born of this woman are regarded as the children of the wife’s deceased husband
or of the wife where the husband is still alive or where the woman is single. It is practiced mainly
by the Kikuyu, Kamba, Kisii, Kuria, Taita, Taveta, Kipsigis and Nandi. See the following case
Re The Estate Of Priscilla Nduta Gitwande (Deceased)

Where it was held that if a marriage has no sexual connotation between the same sex and was
contracted for social purposes as is evident from the observation of the customs of the tribe it may not
be repugnant to morality.There are also woman to woman marriages.
Mule Ndeti vs Ngonyosila

Held that divorce in woman to woman marriages according to Kamba customary law is effected by
return of dowry and the slaughtering of a goat.
The Overlapping of Customary and Statutory Law
There is manifest overlap between African customary law and the general law, especially in
cases where Africans go through a statutory ceremony of marriage. In a majority of cases the
marriage under statute is preceded or followed by customary law rites.
This indicates that the parties have under gone marriage under two different systems of law.
The effect of this appears to be that where it would appear that the statutory requirements
have not been met and therefore the English marriage is not valid, looked at from the
customary law perspective it may very well be said that the same would still be a valid marriage
albeit a customary law one for having complied with all the rites prescribed under customary
law.
There would also be the issue where parties contract a statutory marriage and certain aspects of
their lives remain governed by customary law. For example, in most cases parties seeking to
marry under statute are not obliged to obtain consent unless they are under disability, however
under customary law consent is almost always required.
Most African seeking to marry under statute would still obtain the relevant consents in
compliance with customary law. In most cases parties marrying under statute still pay dowry in
accordance with customary law.
There is a tendency to view the statutory marriage as a special type of marriage that either
exists alone or no marriage exists at all, yet the reality is that most Africans comply with the
requirements both English and customary law.
For statutory marriages Africans still conduct marriage negotiations and pay dowry as though it
is a customary marriage being contracted. See Riogi Omari vs. Mochama Akama
Riogi Omari vs. Mochama Akama

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It was observed that payment of dowry is necessary for a valid Christian marriage contracted under
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Since in a majority of cases Africans who marry under statute comply with both customary law and
English law, and coupled with the fact that African marriage is an alliance of families of the man and the
woman and therefore a stabilizing factor, there exists no good reason why payment of dowry and
parental consent should not be essential for a valid statutory marriage.
The English marriage as known in England does not as a matter of social fact exist in Kenya.
Intertribal Marriages
A man marrying a woman from a different tribe or community must comply with the marriage
requirements of the customary law of the woman’s community, but upon attaining the status of
a wife the woman ceases to be subject to the customary law of her tribe and comes under the
customary law of the man’s tribe or community.
Her life, after she legally becomes a wife, is regulated by the customary law of her husband’s
tribe.
Case Law on Marriages not complying with Essential Requirements
The courts, during the colonial and post-colonial era have often treated as marriages unions in
which most of the essentials for a customary marriage were missing.
The issue of validity arose in cases where a married man who was not been living with his wife
seeking to disturb a stable union that she had established with another man through an action
for the return of the wife and the children that she had with the second man. See the following
cases
Omwoyo Mairura vs. Bosire Anginda

The man sought the return of his wife and the seven children she had had with a man that she was
happily living with. The parties had married under the African Christian Marriage and Divorce Act which
governs monogamous marriages only, and under which such marriages can only be dissolved through
court decree.(See the Marriage Act as read together with the African Christian Marriage and Divorce Act
and the Matrimonial Causes Act) the parties separated and the husband purported to marry three wives
under customary law while the wife purported to marry the second man under customary law and
thereafter got seven children with him. The first man argued that since the monogamous marriage had
not been dissolved the wife lacked capacity to marry the second man and therefore she was still the first
man’s wife and all her children were his children. The court cited the principles of natural justice and
applied customary law instead of the relevant legislation governing the marriage an held that the
woman was the wife of the second man, that is the man she was living with. The principles of natural
justice purportedly relied on by the court were not indicated, neither did the court say whether the
application of these principles of natural justice resulted in the dissolution of the marriage by the
operation of the law without the parties having to apply for a decree of dissolution.
Omondi vs. Chuma Nyafula and Another

The man sued the woman’s father and her cousin (the man she was living with) seeking a return of the
woman, being his wife, and of the children. He had eloped with the woman and stared living with her as
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man and wife, and thereafter paid part of the dowry payable under customary law. The woman later left
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with a child and appeared to be happily married. The first man still insisted that he was lawful husband
of the woman hence the suit. The court declined to find for the first man on the ground that he had
failed to pay dowry in full. In the opinion of the court the woman’s father had consented to his
daughter’s marriage to the first man on condition that the main paid the entire dowry. The court here
clearly upheld the functioning marriage and failed to consider that dowry is never paid in full at once
and whether the union with the second man did not result in polyandry which was not recognized in
customary law.
Case law appears to suggest that a customary law marriage will be declared by the court to have
come into existence notwithstanding lack of consent by parents before the parties commence
cohabitation, lack of a formal customary law ceremony, non-payment of dowry and the woman
having married someone else even when married in customary law to the husband.
Non-Africans and African Customary Law
It is not clear whether non-Africans whose personal law is not African customary law can
contract valid customary law marriages in Kenya.
The practice is that where an African man is taking a wife under customary law from another
tribe he is required to comply with the customary laws of the tribe from which the woman
comes.
By extension a non-African marrying an African woman under customary law, and even under
statute, will be required to satisfy the woman’s customary law conditions before it can be taken
that he has validly married her.
The wording of section 3(2) of the Judicature Act which provides for the application of
customary law seems to imply that non-Africans can contract valid customary law marriages. It
would appear that section 3(2) applies customary law to non-Africans to a certain extent.
According to the provision customary law applies to persons who are subject to it, such as
Africans, and to those who are affected by it, such as those non-Africans who choose to take
African wives in accordance with those African women’s customary law.
There is nothing in customary law which suggests that only those people from a particular tribe
can contract valid marriages in accordance with it.
This means therefore that non-Africans who have legal capacity to marry can contract valid
customary marriages. In Case vs. Ruguru the court had no doubt whatsoever that non-Africans
could contract valid customary law marriages.
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3. MARRIAGE UNDER ISLAMIC LAW

Introduction
Kenya has a large Muslim population, among both Africans and Asians, and Islamic law is applied
in personal matters.
The operation of Islamic law is governed by statutory provisions; and the Mohammedan
Marriage and Divorce Registration Act Cap 155 Laws of Kenya and the Mohammedan
Marriage, Divorce and Succession Act Cap 156 Laws of Kenya govern marriages under Islamic
law.
The former Act relates to the registration of Mohammedan marriages and divorces only while
the latter relates to divorce and matrimonial causes in the cases of Mohammedan marriages.
Mohammedan marriages in Kenya are contracted in accordance with Mohammedan law (See
Section 5 of Cap 156).
The legislation on Mohammedan marriages does not contain any substantive provisions on the
rights of the parties to contract marriages.
These rights are governed by the Koran and the legal rules applicable to the particular sect to
which the parties belong.
There are three aspects to a marriage under Muslim law: That is the legal, social and religious
aspects
1. Legally, a Muslim marriage is a contract which provides for certain requirements as
regards consent and the consequences of its breach. A Muslim marriage can be
enforced judicially.
2. Socially, a Muslim marriage gives women a higher status in society. There are also
restrictions on polygamy.
3. Religiously,Marriage in Muslim law is considered to be a sacred covenant and it is said
that the Prophet Mohammed encouraged it.
Types of Marriages under Islamic Law
There are three forms of marriages under Muslim Law, with the classification being based on
the legality of the marriages.
1. The Sahih marriage is basically a marriage which has conformed to all the laid down
requirements.
2. The Batil marriage is in fact a void marriage either by reason of some blood relationship
between the parties or some other incapacity to contract the marriages. The children
born out of this marriage are considered illegitimate and no mutual rights or obligations
arise as between the parties who are so married.
3. The Fasid marriage is an irregular marriage either because there were no witnesses to
the marriage or the woman was undergoing the period of iddat at the time of the
marriage ceremony or the marriage is with a person from a different religion or 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.
Under Muslim Law marriages arising out of cohabitation are not permitted. One has to comply
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Essentials for Valid Muslim Marriage
The parties to a Muslim marriage must be biologically a man and a woman; and must have
reached the age of puberty.
The man is qualified to marry whether he is single or married so long as he marries up to four
wives only.
Even then, he may not marry two wives at the same time, since the rules allow him to marry
only one wife at a time and if he marries two wives at the same time, the marriage would be
considered irregular.
In the case of the woman, she has to be single, and single in this context includes the condition
of having been widowed or divorced.
Where she has been widowed or divorced, she has to wait for a period of about four months
before she can contract another marriage. This waiting period is known as the iddat period and
its purpose is to determine whether she is expectant, since she cannot contract a marriage in
that state.
Prohibited Degrees of Relationships
Parties should not be within prohibited degrees of consanguinity and affinity.

These are not set out in legislative form, the applicable law in the circumstances is Islamic law.
The Mohammedan Marriage, Divorce and Succession Act provides that marriages should be
contracted under the Mohammedan law and scholars on Muslim law have stated that under
Islamic law, a man may not marry his mother, grandmother, sister, niece, grandchild, aunt or the
ascendants or descendants of the wife.
Consent
In Islamic law marriage is essentially a contractual relationship based upon the consent of the
parties. In some instances consent of legal guardians may also be required. See Ali Omer Ockba
vs. Aziza Bint Ali Omer Ockba
Ali Omer Ockba vs. Aziza Bint Ali Omer Ockba

A father of a virgin Muslim woman sought and was granted an injunction restraining her from marrying
without his consent. According to the doctrines of Shafei Muslims, a virgin, whether before or after
puberty, cannot give herself in marriage without the consent of the father. The court held that the
marriage of the woman would be invalid for lack of the consent of her father. Court held that although it
is permissible for a Moslem to marry a woman who believes in a heavenly or revealed religion and which
possesses a religious book, all Moslem sects agree that no Moslem woman can validly marry a non-
Moslem.
Bashford vs. Shaban

It was held that a Muslim marriage would be void where consent is obtained by fraud or force, unless
the same is subsequently ratified. The husband had told the wife that he was unmarried, but later the
wife found out that he was in fact married to two other women. The court declared the marriage null
and void ab initio since that woman gave consent on a completely erroneous conception of a condition
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precedent which arose from a deliberate misrepresentation on the part of the husband.
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Social Status of the Parties
A Muslim marriage is meant to give women a higher status in society, therefore a husband
should strive to maintain the wife at the station in life that she was accustomed to before the
marriage.
This suggests that the man should marry the woman of his station in life or of a lower social
status. See the following cases
Mohammed vs. Salim

It was held that a woman should marry a man within her station in life or of the same social status with
her. This is so because under Muslim law the husband is required to maintain his wife according to the
standards she is used to.
Bibi vs. Bibi

An aunt sought to have her niece’s marriage invalidated on the grounds that she had married a man of a
lower social status and bad character without the consent of her guardian, and her plea was granted.
Religious Status of the Parties
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.
The position is that a Mohammedan male may contract a valid marriage not only with a
Mohammedan woman but also with a kitabia that is a Jewess or a Christian but not with an
idolatress or a fire worshipper. See the following cases
Re Salum
It was held that Mohammedan law recognizes certain marriages between Mohammedan males and
non-Mohammedan females, so long as the females are kitabia, which means that they should be either
Christians or Jewesses.
Abdulrahman bin Mohamed and Manuel alias Emanuel Khalifa vs. R

A Muslim man had married a woman under Makonde customary law; the Court of Appeal for Eastern
Africa, on an appeal turning on criminal issues, agreed with the High Court that the marriage in question
was not a Muslim marriage as the wife was not a kitabia.In other sects, marriage between Muslims and
non-Muslims is not permitted at all.
However, among all Muslim sects a Muslim woman cannot get married to a non-Muslim man. In
Ali Omer Ockba vs. Aziza Bint Ali Omer Ockba a Muslim woman sought to marry an Ethiopian
who was a Christian. It was held that the proposed marriage would be invalid for the reason of
the religion of the proposed bridegroom because a Muslim woman cannot validly marry a non-
Muslim man.
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Although it is permissible for a Moslem to marry a woman who believes in a heavenly or

revealed religion and which possesses a religious book, all Muslim sects agree that no Muslim
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Formalites to a Muslim Marriage

Generally there are no required formalities for a Muslim marriage except the offer by one party,
acceptance by the other, and the presence of witnesses.
The offer and acceptance must be entered into by the parties themselves or through their
guardians.
The declaration or offer is firstly made by one party and the same should be accepted by the
other party for marriage to be valid.
The words in the declaration or offer should be such as show a clear intention to contract a
marriage.
The declaration and acceptance should be made in the presence of sufficient witnesses; and it is
also the requirement that the declaration and acceptance should be made in one meeting or at
the same meeting.
There must be a wahi, a guardian, who gives the woman in marriage.(Usually her father)
Marriage Consideration or Mahir
The marriage consideration in Islamic law differs from that given in customary law.
In Muslim societies the mahir is paid by the man to the woman. The amount is usually agreed
before the marriage, is reached, and where no agreement, the same is fixed later as a
reasonable amount.
The mahir being the property of the wife forms part of the wife’s estate. The amount payable is
not fixed and dependent on the different Muslim sects and it is normally fixed according to the
social status of the wife’s family. See the following case
Sheriff Abdulla vs. Zwena Binti Abedi

It was held that a debt can be regarded as mahari.
Mahir is essential for a valid Muslim marriage except for an adult woman of the Shi’i
communities.
However, among some African Muslim communities in Kenya confusion has arisen with
customary law practices and often mahari in fact approximates more to the traditional African
bride-price than the Islamic concept, especially since the same is paid to the bride’s father
rather than to the bride herself.
In Saliha Binti Baraka vs. Tiabit Bin Salim this case deals with recovery of dowry and the other
one as to maintenance.
Polygamy
Recognition of polygamy is an important feature of a Muslim marriage.

Like all other aspects of a Muslim’s life, marriage is completely regulated by Islamic law, whose
major source is the Koran.
Traditionally the Koran is interpreted to permit a Muslim to marry up to four wives. A Muslim
husband is permitted strictly up to four wives.
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The right of Muslim men in Kenya of having four wives concurrently is well established and is in
fact a fairly common practice.
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However, in most of the Muslim communities in Kenya monogamy is in fact practiced, but the
more conservative elements in the community still practice polygamy. See Mussa Ayoob vs.
Malek Sultan Ayoob
Mussa Ayoob vs. Malek Sultan Ayoob

It was held that under the Mohammedan law a man is entitled to have as many as four wives at the
same time and a Mohammedan marriage is therefore not a monogamous marriage.
Women do not enjoy a similar right, and therefore they cannot during the subsistence of a valid
marriage marry another man.
There is no legal requirement for the man to notify his wife or wives about an intended marriage
or even notify them of it after the celebration of the marriage.
There is no requirement or provision which enables a wife to protest or object to the proposed
marriage.
Section 6 of the Mohammedan Marriage Divorce and Succession bars a man who is married
under customary law from marrying a second wife under Islamic law.
Under section 3(6) of the Mohammedan Marriage Divorce and Succession Act a man who
purports after marrying one wife under customary law or other system of marriage to marry a
second wife under Islamic law, would still be bound by the legal incidents of the first marriage.,
and he would be bound to honour the obligations under the first marriage regardless of the
legal regime under which they arise.
Muslims oppose reforms relating to polygamous marriages on the basis that polygamy is
mandated by their faith and any changes will fundamentally alter the practice of the faith.
Sura 4 verses 3 of the Koran provides that a Muslim may marry women of their choice, two,
three or four, but if they cannot deal justly with them then they should confine themselves to
just one. This appears to make polygamy permissible rather than mandatory.
In fact the above verse appears to be a measure designed to limit rather than encourage
polygamy.
The Koranic law does not just recognize polygamy and leave its incidents to be determined by
social duties and obligations, it proceeds to state very rigid conditions under which a man may
take more than one wife.
He may not marry in the first place if he has no means of supporting or maintaining the wife. He
is also obligated to provide equal consortium to each of the wives.
He should not favour any of the wives as regards rendering conjugal rights.
Indeed it would seem that polygamy preceded the advent of Islam and was not introduced by
Islam, and therefore it really is not firmly grounded in Islam.
In some Islamic countries in Africa and other parts of the world legal reforms have been
introduced which prohibit or regulate the ability of husbands to take on other wives.
In the United States of America, the Supreme Court in Reynolds vs. US refused to recognize the
defence of freedom of religion to a criminal prosecution for the practice of polygamy.
In Egypt reform has taken the form of allowing the wife a right to seek divorce in court where
the husband takes a second wife. She will be granted divorce upon a second marriage if she
shows that she has suffered as a result a material or moral injury that would render continued
marital life between her and her husband difficult.
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Under Moroccan law polygamy is prohibited if it will result in injustice.

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In Syria, Iraq, Somalia, Indonesia and Pakistan the practice is to require the husband to justify his
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In Tunisia and Cote d’Voire polygamy has been abolished altogether.
Registration
The Mohammedan Marriage and Divorce Registration Act requires registration of all Muslim
marriages within seven days, at the office of the registrar of Islamic marriages.
The registrar must be satisfied before registering the marriage as to the identity of the parties,
the capacity of the parties and that the marriage did actually take place.
Once the marriage has been registered the parties and two witnesses who witnessed the
marriage are required to sign the register.
However Section 24 of the same Act says that the fact that parties omit to register their
marriage does not invalidate that marriage and where marriage is invalid, registration of a
marriage will not validate it.
The effect of this legislation is restricted by the saving section which preserves the validity of any
marriages not so registered. In any event the legislation does not apply to all Muslims in Kenya
but only to those to whom it has been extended by Ministerial notice: currently it has been
applied to all Muslims, except those of the three Shiah Communities: the Khoja Shia Ith’nasheri,
the Khoja Shia Ismailia Council and the Bohra Community.
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4. MARRIAGE UNDER HINDU LAW

Introduction
Hindu law is important taking into account the large number of persons of Asian citizens and
residents who are followers of the Hindu faith.
Marriages of parties who profess the Hindu faith are governed by the Hindu Marriage and
Divorce Act.
The Act regulates marriage between Hindus, who are defined to include Indian Buddhists, Sikhs
and Jains.
Hindu Marriage under the Act is strictly monogamous, Kenya having adopted the reforms
effected in India by the Hindu Marriages Act of India of 1955, to which the Kenyan Act closely
corresponds although not exactly.
Until 1960 Hindu Marriages were potentially polygamous but upon enactment of the Hindu
Marriages and Divorce Act, it was expressly provided that after enactment of the Act Hindu
marriages were to be monogamous.
Section 7 (2) of the Hindu Marriage and Divorce Act provides that a marriage solemnized under
the Act shall be a marriage within the meaning of the Matrimonial Causes Act which means that
they must be strictly monogamous marriages.
It conforms to a large extent to the general law regarding monogamous marriages. See
Umedigir Motiger Gosai vs. Umedigir Kusumben Gosai
Umedigir Motiger Gosai vs. Umedigir Kusumben Gosai

It was held that the provisions of section 4 of the Hindu marriage, divorce and succession ordinance are
of general application to all Hindu marriages whether conducted in the colony or India and the court had
jurisdiction to hear the petition. Since the parties were married in India where the law recognizes the
marriage of a girl under the age of sixteen years, the proviso to section 3 (1) could not affect the validity
of the marriage. the proviso provided that no boy under the age of eighteen years and no girl under the
age of sixteen years shall be capable of contracting a valid Hindu marriage. It was a petition for
restitution of conjugal rights.
Section 5 of the Act provides that Hindu marriages shall be solemnized according to the
customary rules and ceremonies of the parties and that Section thereby imports Hindu
Customary Law into the celebration of Hindu Marriages.
Conditions When Contracting a Hindu Marriage

Insofar as capacity to marry is concerned, it is provided for under Section 3 and 4 of the Hindu
Marriage and Divorce Act
(a) Marital Status

Section 3 (1) (a) provides that neither party should be married to another person who is living at
the time of contracting the marriage so both parties must be single.
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cap 175 laws of Kenya

cap 175 laws of Kenya
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Section 7 (3) also provides that a marriage solemnized after the commencement of the Act shall
be void if the former husband or wife of either party was living at the time of the marriage and
the marriage with such former husband or wife was then in force; and the provisions of Section
171 of the Penal Code shall apply in such a case.
(b) Sound Mind
Secondly the parties should be of sound mind at the time of contracting the marriage.
(c) Age of Marriage
Thirdly the man must have attained the age of eighteen (18) years and the woman should have
attained the age of sixteen (16) years of age.
Where the bride has not attained the age of eighteen years, the consent of her guardian in
marriage, should be been obtained for the marriage;
(d) Prohibited Degrees of Relationships
Fourthly the parties should not be within the prohibited degrees of consanguinity, unless the
custom governing each of them permits a marriage between them.
Section 3(2) of the Hindu Marriage and Divorce Act lists the persons who are within prohibited
degrees of consanguinity.
(e) Consent of Guardians
Fifthly consent where required must be given and Section 4 (1) of the Act lists down the
guardians who may give consent in order of priority where it is required.
If there is no such person as are listed in Section 4(1), the consent of a guardian in marriage shall
not be necessary.
Formalities of Hindu Marriages

(a) Ceremonies of Marriage
The Hindu Marriage and Divorce Act provides for two ceremonies which may be performed
when a Hindu marriage is being celebrated.
Section 5(2), (3)-The Saptapadi ceremony: this ceremony involves the taking of seven steps by
the bridegroom and the bride jointly before the sacred fire and the marriage becomes complete
and binding when the seventh step has been taken.
See Section 3 (1) (c) and (d), Hindu Marriage and Divorce Act Cap 175 laws of Kenya
The Anand Karaj ceremony: Here parties go round their holy book known as the Granth Sahib
four times and the marriage becomes complete and binding as soon as the fourth round has
been completed.
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(b) Registration
Registration of Hindu marriages may be required by ministerial regulations. Section 6 of the Act
also provides for registration of Hindu Marriages and the issuance of a marriage certificate.
However, non-registration of a marriage will not invalidate a marriage neither will registration of
a marriage validate an invalid marriage.
The Section also provides that Separate or different rules may be made with respect to the
marriages of Hindus belonging to different castes or communities
Castes
Hindus irrespective of their caste can marry under the Hindu Marriage and Divorce Act.
Marriages are by and large within the caste; sub-castes are frequently ignored; sometimes even
caste is ignored.
This however has nothing to do with the law so long as the parties are Hindus.
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LECTURE 7-9: 28TH -11TH NOVEMBER 2013- 5.30-7.30PM (LECTURE HALL B5)
TOPIC 7: MATRIMONIAL OBLIGATIONS

1. MATRIMONIAL OBLIGATIONS UNDER THE GENERAL LAW
The matrimonial obligations under the general law are not spelt out in legislative form; rather
they are apparent from the rules concerning matrimonial remedies.
The matrimonial obligations imposed are comparable to those under English law: where the
husband is obliged to maintain the wife and the children, the spouses have mutual obligations
as to cohabitation, sexual intercourse, etc
These are duties that arise once parties are statutorily married.
(a) The Right to Consortium

Consortium is the right to the company society and affection of a spouse in any matrimonial
relationship.
Marriage exists to make permanent the staying together of friends.
This is rooted in the human need for a permanent companion, who should be a source of extra
material support.
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 the 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. See Republic vs. Jackson
Republic vs. Jackson

In this case, 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 and 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.
The two cases 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 one of the cases the husband locked the wife in the house and refused anyone to see her the
cause was being difficult to live with. See Nanda vs. Nanda
Nanda vs. Nanda

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 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
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rejected them. In other words while the law recognizes there is consortium, they cannot enforce it and
neither can one use extra judicial means to employ it.
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The Matrimonial Causes Act provides for restitution of conjugal rights but if the other party is
not willing, no court can force an order for restitution of conjugal rights.
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.
R vs. Kadhi ex parte Nasreen This case is important for the position that whatever system of
family law is applied, they must be constitutional or they are declared null and void.
(b) Right of The Wife to Use Her Husband’s Name
In Kenya the husband does not acquire the wife’s citizenship although in other areas he does.
See John Patrick Machira vs Patrick Kaniary Muturi
John Patrick Machira vs Patrick Kaniary Muturi

A husband had brought a suit as a person of unsound mind suing through his beat friend the wife. Court
held that being a wife of the defendant alone does not qualify the wife to act as a guardian ad litem in a
suit. She should apply formally as required Under Order 31 of the civil procedure rules for an order of
the court to be allowed to take over the suit from the defendant as a guardian ad litem
(c) Right to Cohabit
Marriage imposes on the spouses a mutual 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 and this was the ruling in Dunn vs. Dunn.
Dunn vs. Dunn.

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 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, it is not the 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 is saying that it is not the law that the husband should decide where they are going to live.
Republic vs. Kadhi, Kisumu Exparte Nasreen

Court held that there is no obligation on a wife to remain with her husband. There is a limit to which a
husband can enforce compliance by his wife with his physical demands without being amenable to
criminal law. Implementation of the Kadhi’s order would have subjected the wife to dominion by the
husband to amount o servitude. The Kadhi had held that the marriage between the parties subsisted
and ordered the wife to return in person to the husband.
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The same was held in Uganda vs. Akua & Another where it was held that there is no power to
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(D) Right to Sexual Intercourse
Marriage confers on each party the right to sexual intercourse.

The marriage makes the enjoyment of sex much secure because of cohabitation.
This right 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.
The law on consummation of marriage and the rule that its denial is a ground for divorce
underlines the importance of the right to sexual intercourse.
However this does not mean that a spouse should submit to unreasonable demands of sexual
intercourse .See AB vs. CD
AB vs. CD
The court held that the wife had the right to refuse to submit to unreasonable demands for sexual
intercourse. It amounts 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 vs. Clarke also R vs. 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 shown to have injured the other party whether emotionally or physically it
can be cruelty.
The exercise of the right to sexual intercourse often leads to birth of offspring, which assists in
the realisation of manhood and womanhood, and ultimately gives the spouses the identity that
they seek in marriage.
(e) Right to Matrimonial Confidence within the Spouses
The companionship created by marriage requires that spouses be each other’s confidants.
They should be able to reveal their respect hopes and fears without the fear that the same
would be made public. 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.
The law of evidence gives the spouse immunity against compulsion to disclose communication
during coverture.
This generally makes a spouse not a compellable witness for the prosecution when the other
spouse is charged with a crime. Argyll vs. Argyll(Evidence act)
(f) Right of Maintenance

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Marriage imposes on the husband a duty to maintain the wife and children. Under common law,
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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.
This maintenance arises under (a) the Matrimonial Causes Act Sections 25 and 26 and under
the Subordinates Courts Separation and Maintenance Act Section 10 please 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. See MSK vs. SNK
MSK vs. SNK

Held that the marriage having broken down irreparably and a divorce being duly granted the applicant is
entitled to maintenance in the same standard as she was living before. Also held that the child is entitled
to maintenance in the same standard and be offered the same type of education as her brothers were.
The court ordered that part of the joint property be transferred to the wife and made a declaration that
some properties in the name of the husband are held in trust for the applicant on a 50% basis. Also
ordered a lump sum payment as maintenance to the wife.
At common law the husband is under a legal obligation to provide shelter to his wife and
children.
This common law position is summarized by Lord Denning in the case of Hutchinson vs.
Hutchinson

Hutchinson vs. Hutchinson
Lord Denning where he said that at common law the husband has no right to turn the wife out the
house where they had established a matrimonial home, nor could he sue her for ejectment or trespass
or any other right. The wife could at common law bring an action against the husband to provide her
with a house.
Once such a house is provided she has a right to use it for as long as the marriage subsists.
Under the circumstances the wife is not a licensee and she resides at the matrimonial home by
virtue of a right deriving from marriage and a mere permission or license.
See the Tanzanian case of Eugene vs. Hadija
Eugene vs. Hadija

It was held that a husband’s duty is to maintain his wife by providing a home for her. A wife who rejects
the home offered is not entitled to money in lieu thereof. Marriage act 1971 Tanzania court held that
section 63 means that it is the duty of the husband to maintain wife and in so doing the standard of
accommodation, clothing and food must be reasonable.
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Satpal Kaur Rihal vs Surinder Singh Rihal

It was held that under rule 59 (1) of the Matrimonial Causes Rules all the court need to ensure is that
the respondent has defaulted in payment of the maintenance and that he was served with the order.
Court allowed the respondent to pay the amount he had defaulted to pay and in default it ordered his
arrest and committal to civil jail for six months.
George Edward Karanu vs Beatrice Mbaire Karanu

It was held that rule 44 (1) of the matrimonial causes rules envisages an honest and true disclosure by
the husband of his earnings so that the court can be guided by it in fixing the quantum of the award. The
husband in this case had not filed such affidavit instead field a replying affidavit. Held also that where
cohabitation has been disrupted by a matrimonial offence on the part of the husband, the wife and
children’s maintenance should be so assessed that their standard of living does not suffer more that is
inherent in the circumstances of separation. Quoting Ward vs Ward where it was held that where a
wife is earning an income the whole of this need not and should not ordinarily be brought into account
so as to ensure to the husband’s benefit …..particularly where the wife only takes up employment in
consequence of the disruption of the marriage by the husband or where she would not reasonably be
expected to be working if the marriage had not been so disputed.
In the case of Alimony Pendente lite which is alimony or maintenance paid to a wife pending
determination of a divorce case that 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.
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.
Under Section 32 of the Matrimonial Causes Act the court can vary a maintenance order where
circumstances arise warranting that variation. N vs. N in common law the right to maintenance
stops 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.
See Muhidin Sheikh Mohamed vs. Khadija Omar Al-Amin
Muhidin Sheikh Mohamed vs. Khadija Omar Al-Amin

Quoted case of Catherine Jean Marsden vs. Patrick Michael Onyango where the court of appeal held
that rule 48 of the Matrimonial Causes Rules requires a judge to make full investigation into the matters
in issue for such ancillary relief as is ought and the duty to make such investigation becomes more
pronounced when the interest of an infant are involved. The court should assess the income of the
husband and the wife as adduced in evidence and make a decision on the amount of maintenance based
on the evidence.
Helen Monica Barret vs. James Barrret

Held that an order for the payment alimony is something personal to the wife and it dies with her.
Further it is open for the petitioner to apply for an order for maintenance of the children.
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(G) The Right of a Wife to Pledge The Husband’s Credit

Common Law Rights of a wife to pledge the husband’s credit.
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.
This has been applied in Kenya in a number of cases. See Nanyuki General Trading Stores vs
Mrs Peterson
Nanyuki General Trading Stores vs Mrs Peterson

The court held that the question whether or not a wife contracted otherwise than as an agent of the
husband is a question of fact depending upon the surrounding circumstances of a particular case. It was
held that the husband had failed to rebut the presumption that the wife had the implied authority from
the husband to pledge credit.
Ramji Dass Co. vs. McDonald

It was stated that this presumption existed even when the wife and husband were not living together.
(h) Right to Protect the Other Spouse
Each spouse is entitled to use reasonable force in protection of the other spouse from physical
harm and may lawfully kill an assailant if necessary and reasonable in the circumstances.
(i) Right to Defence of Sudden Provocation
The law recognizes that the feelings between the spouses are often too strong to the extent that
a spouse could be provoked to the point of causing death upon discovery of the other spouse
committing adultery.
If a spouse kills, either the other spouse or the person they were committing adultery with, such
spouse would be guilty, not of murder, but of the lesser offence of manslaughter. See
Kalumewa Tuku vs. Republic
Kalumewa Tuku vs. Republic

Under Kenyan law this defence of sudden provocation on the part of a spouse upon discovering the
other in the act or in pari delicto extends to include spouses who are not lawfully married but are
cohabiting outside marriage.
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2. MATRIMONIAL RIGHTS AND DUTIES UNDER CUSTOMARY LAW

The customary law marriage is the avenue for a wide variety of rights and duties between the
spouses, between them and their chidren, and between each of them and the respective
families on each side.
The very nature of these obligations logically create jural relations.
The same confer a status on the parties and in relation to the community.
The jural relationships are founded on certain basic principles which guide matrimonial
questions and which are recognized by the African community concerned as such.
(a) Obligations as Between Spouses
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 house.
Both have mutual obligations with respect to sexual intercourse. 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 the custom in customary law that wife and children are to be seen and not to be heard.
The husband has the sole right to sexual intercourse with his wife or wives. This is founded on
the general acceptance of polygamy in Kenya.
The wife must remain faithful to her husband and adultery by her is treated severely and her
husband is entitled to recover damages in customary law from the man that
she committed adultery with or from her father.
A single act of extra-marital sex by the wife is treated as adultery.
Among the Luhya the adulterer pays compensation of one bull and one heifer and one goat to
the husband of the woman.
The wife’s father is also liable to pay one heifer to the husband as compensation.
The man also has right to divorce the wife on the ground of adultery and reclaim dowry.
Among the Maasai, the husband may allow the wife to have sexual intercourse with members of
his age group but he reserves the right to object to any member of that age group.
The husband is entitled to take additional wives and is free from blame for adultery.
Conversely the wife does not enjoy a similar exclusive right to sex with her husband and to
compensation in the event of the husband’s adultery.
A husband is believed to be within his rights to take additional wives and to have sexual
relations with unmarried women. The law does not provide a remedy to the wife against the
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It is often argued that polygamy makes the husband and wife unequal partners. The wife is
subjected to unconditional fidelity during marriage in the same way as her monogamous
counterpart, but the husband is under no reciprocal duty.
The husband has the duty to maintain his family and to ensure that they have adequate food
and clothing.
This is satisfied by the allocation of land to the wife on which she may cultivate crops.
Muli vs.Kithuka.
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.
Jessie Nyokabi vs. Public Trustee (sued as the Administrator of the Estate of S.J Kagondu
It was held that according to Kikuyu customary law the obligation of a deceased’s elder brother to
support the widow and her children from his own resources was not an absolute obligation and it is not
an obligation to spend any particular amount. It was an obligation to protect and in case of necessity
give what support he could. The husband reserves the right to chastise his wife where she has wronged
him however excessive beating is not allowed in customary law.
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.
The parties have a right to matrimonial confidence within the spouses. This right is similar to the
situation obtaining under the general law, the reasons explaining the existence of this rule being
similar.
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.
The law of evidence gives the spouse immunity against compulsion to disclose communication
during covertures, which generally makes a spouse not a compellable witness for the
prosecution when the other spouse is charged with a crime this privilege was however denied
African couples during the colonial period, allegedly on the ground of the need of maintaining
law and order or colonial stability.
(b) Obligations as to the Children
Customary law envisages a patriarchal society. The man retains control over his wife or wives
and the children, meaning his unmarried daughters and his married sons if they continue to live
near him.
Claims over children extend beyond physical paternity, so that the payment of marriage
consideration gives the husband the right to claim the children born to the wife even when she
was separated from him to live with another man provided there is no formal divorce.
These cases deal with the issue of dowry and the courts did recognize that this institution can be
abused. See Momanyi Nyaberi vs. Onwonga Nyaboga
Momanyi Nyaberi vs. Onwonga Nyaboga

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The Applicant applied for a declaration that he was entitled to a woman and the children which he had
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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 that she may have was an abuse of customary law and repugnant to natural justice.
Onchoke vs. Kerebi

The husband was very forthright and he said that he was claiming the children that his wife had with
another man for the bride price that he might expect to receive from the marriage of those children. In
fact in this case the man said that he was only interested in the children and not the wife so that he was
the one to receive the bride price for those children.
(c) Obligations towards families
Customary law creates duties of a spouse towards the other spouse’s family. These include
duties of hospitality, economic cooperation and respect.
Senior family members from both families have a right to intervene in the event of marital
difficulties developing between the spouses.
The wife is absorbed into the man’s family, to the extent that in the event of the husband’s
death she is expected to stay on in the husband’s family looking after her husband’s children.
In some communities she is expected to cohabit with one of her deceased husband’s kinsmen.
Generally under customary law marriage is for life.
Should she insist on leaving her husband’s family, the wife would lose her right to access her
husband’s property, her right to maintenance or help from her husband’s family or his property.
Modern trends
Much of the position stated above, although applied widely by most rural communities and by
the poorer segments of the urban population, has been largely modified through the influence
of legislation as well as international instruments.
Some of the rights and obligations under customary law might be extremely difficult to enforce
in a court of law today.
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3. MATRIMONIAL OBLIGATIONS UNDER ISLAMIC LAW
The husband’s duties to of maintenance are in theory more extensive than in the other systems.
It is the man who does the duties of cooking, washing clothes and utensils, grinding, pounding,
cleaning, sifting, sieving, etc, for the woman and she is not required to do any of these duties
except voluntarily out of kindness.
Where the man has married more than one wife Muslim Law obligates him to treat each wife
with kindness and equality.
The husband is under a legal obligation to maintain his wife to the standards that she is used to.
See Farhana d/o Zafarulla Khan and another vs. Mohammed Shafiq Quresh
Farhana d/o Zafarulla Khan and Another vs. Mohammed Shafiq Quresh
It was held that maintenance is payable to divorced women under Muslim law. It also held that under
Muslim law the marriage gifts a man gives to his prospective wife belong to her as well as the gifts
acquired by the wife before or after the marriage. Further held that a marriage is a special contract but
not an economic transaction and to claim reimbursement of the expenses incurred in the staging of a
marriage which eventually fails is to attach an economic element to the contract of marriage and is
contrary to public policy. To allow such a claim is tantamount to giving parents of spouse’s right of
monetary investment in the marriage of their children.
The husband has the right to restrain the wife’s activities and to exercise marital authority over
her and the children.
The husband has a duty to pay mahari to the wife, and she has a corresponding right to the
mahari and she may choose to recover it if it is not paid in full.
In Saliha Binti Baraka vs. Tiabit Bin Salim Saliha case deals with recovery of dowry and the
other one as to maintenance. Each spouse has a right to the others consortium and to enforce
performance of the other spouses marital duties.
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4. MATRIMONIAL RIGHTS AND DUTIES OF HINDU MARRIAGES
(a) Right to consortium
They are generally that the parties have a right to consortium and the right to consortium is
similar to that that arises under statutory law.
(b) Wife’s right to maintenance
The wife has a right to maintenance. Section 7(2) of Hindu Marriage and Divorce Act applies the
Matrimonial Causes Act to marriages that are contracted under the Hindu Act.
This therefore means that the maintenance conditions under the Matrimonial Causes Act will
also apply to Hindu Marriages.
The protection of the Subordinate Courts (Separation and Maintenance) Act is available to
Hindus. Caste is irrelevant.
(c) Wife’s duty to cohabit with husband
Under Hindu Customary Law the wife has a duty to cohabit with her husband
So in many respect Hindu Marriages are similar to marriages under statutory law.
(d) Wife’s duty to submit herself to husband

In addition to cohabiting with the husband the wife has a duty to submit herself to his authority.
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LECTURE 10-13: 18TH NOVEMBER-9TH DECEMBER 2013- 5.30-7.30PM (LECTURE HALL B5)
TOPIC 8: PRESUMPTION OF MARRIAGE

Introduction
It often happens that a man and woman cohabit or live together for a considerable period of
time, without going through a ceremony of marriage.
They may beget children and they may relate for all practical purposes as husband and wife,
including discharging to each other the normal obligations of marriage.
The courts in such cases may, when called upon to, presume marriage between the parties
founded on the circumstances of each case.
The rationale for is usually the judicial demand for solutions to some complex social dilemma or
procedural conveniences.
This is called the common law presumption of marriage. The concept of presumption of a
marriage is an appreciation of the needs of the parties in life when a man and a woman cohabit
for a long period without solemnizing their union by going through a recognized form of
marriage.
THE COMMON LAW POSITION
Where a man and a woman have cohabitated for such a length of time and in such
circumstances as to have acquired the reputation of being a man and a wife, a lawful marriage
between them will generally be presumed though there may be no positive evidence of any
marriage having taken place and the presumption can only be rebutted only by strong and
weighty evidence to the contrary.
This called the presumed marriage. It is a ‘judge-made’ marriage which is presumed to bring
about consequences of marriage to a situation where a man and woman have lived as though
they were married, having not fulfilled the formal requirements of marriage.
The presumption is made both where there is some evidence of a marriage ceremony of some
sort having been preformed followed by cohabitation as husband and wife and also where there
is no evidence of any sort or kind of marriage ceremony but there is evidence of cohabitation by
and acceptance of the parties by the community as such.
In both cases a very heavy burden of proof is imposed on the one who wishes to rebut the
presumption.
The courts are generally reluctant to hold in a given case that presumption has been rebutted,
since the presumption is a device for recognizing as a marriage a union that is in substance
though not in form a marriage.
Family law is also trying to incorporate certain situations which do not fall within the family
threshold and this is one of them.
Under this presumption they will be deemed to be married even if they have not undergone any
formal marriage ceremony.
Bromley’s family law 9th edition p 52 states that if a man and a woman cohabit and hold
themselves as husband and wife this in itself raises a presumption that they are legally married.
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See Breadalbane
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Breadalbane
Cranworth J stated that if upon the death of persons who had cohabited without a formal ceremony of
marriage a succession opened to their children, anyone claiming a share in the such succession as a child
would establish good prima facie case by showing that parents had always passed in society as a man
and his wife, and that he (the claimant) passed as their child. He added that marriage can only exist as a
result of mutual agreement.
The conduct of the parties and of their friends and neighbors, as to their habits and repute,
affords strong evidence that at some unascertained time a mutual agreement to marry was
entered into by the parties passing as man and wife.
Habit and repute is generally conclusive evidence of marriage, unless the same is met by
counter evidence.
Where parties have not met legal requisites to be called man and wife. See
Re Thompson vs Thompson
A man and woman lived together for ten years and had 5 children and the neighbours treated them as
husband and wife. Court held presumption of marriage had taken place.
Re Taplin, Watson vs Tate

It was held that the presumption of marriage can be rebutted only by evidence of the most cogent kind.
THE KENYAN POSITION
The common law presumption of marriage has been imported into the Kenyan law by the
reception clause as embodied in section 3(2) of the Judicature Act.
The concept of presumption of a marriage is an appreciation of the needs of the parties in life
when a man and a woman cohabit for a long period without solemnizing their union by going
through a recognized form of marriage.
The first record of its application is in the case of Hortensia Wanjiku Yawe vs. The Public
Trustee
Hortensia Wanjiku Yawe vs. The Public Trustee

In the matter, the parties had cohabited from 1963 to 1972 when the man died. The woman claimed his
estate as his widow under customary law. The Public Trustee then moved the court asking for a
determination as to whether the woman was the widow of the deceased. The court did not consider
whether or not the essentials of a Kikuyu customary law had been complied with, but considered the
circumstances of the parties cohabitation - that the man had orally and in writing described the woman
as his wife, the community treated the couple as husband and wife, the mother of the man knew the
woman as her son’s wife, among others. The court concluded that the fact of the long cohabitation as
man and wife gave the presumption of a marriage in favour of the woman, which presumption could
only be rebutted or displaced by cogent evidence to the contrary. It was stated that the presumption
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was derived from English law and was not opposed to Kikuyu law.
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Hortensia Wanjiku Yawe vs. The Public Trustee has been followed by a long line of other
decisions emanating from both the High Court and Court of Appeal on the principle of
presumption of marriage. See the following cases
Mary Njoki vs. John Kinyanjui Mutheru

The court held that promise to marry was not required to make the presumption of marriage arise nor
was the performance of any customary ceremonies required.
In Re the Estate of Gerald Kiragu Gatheru(Deceased)

It was held that where there was proof of cohabitation and where three children were born one of
whom is over 20 years can be considered as marriage by reputation that required a formal divorce.
In Re The Estate of James Simu Nthiwa

It was held that by virtue of section 3 of the judicature act, cohabitation between man and woman as
husband and wife raises a presumption of a marriage. If a marriage is challenged, then the burden lies
upon those challenging it to prove there was in fact no marriage and not upon those alleging to prove
that it was solemnized. The principle of presumption was enunciated in case.
Christopher Nderi Gathambo vs. Samuel Muthui Munene

It was held that once the appellant husband showed that she was living with the deceased as man and
wife for 9 nine years she was in law presumed to be married unless the contrary be clearly proved.
There was no Kikuyu customary law in this case. The court held that the criteria the court can use to
define cohabitation decide if there is cohabitation includes the cohabitants financial arrangements, the
intimate commitment the outward observable features of the relationship such as whether the
cohabitants adopt the same second name, but they are not conclusive. It also stated that where a party
has decided to join in cohabitation even without specifying their individual rights in that relationship the
court cannot just raise its hands up in impotent inability and ignore to exercise justice to the parties.
Sylvester Kongo Mukono & Another vs. Geoffrey Ndungu Muigai & Another
The man and woman were living together, had a child, both constructed a house, both their families
recognized their relationship as that of husband and wife court held a case had been made for
presumption of marriage by reason of long cohabitation and conduct. Held the burden of proof is on the
party who alleges that there was no marriage.
In The Matter Of The Estate Of Late Evanson Kiragu Mureithi

It was held that even though the requirements of a Kikuyu customary marriage had not been fulfilled,
they cohabited as husband and wife from the circumstances which included the fact that their children
were named after the parents of both parents as required under Kikuyu customs and that the husbands
parents had visited the wife’s home to inform them the husband was cohabiting with the girl and paid
some money and brought beer for the elders and sodas for the women.
In The Matter Of The Estate Of John G. Kinyanjui

The court held that cohabitation can be evidence from which it may be presumed that the parties to the
cohabitation did marry. Cohabitation is not in itself tantamount to marriage since marriage entails clear
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legal obligations and cohabitation does not. The court quoted Wambuzi P in Mary Njoki vs. John
Kinyanjui MutheruCACA No. 71 of 1984 where he said, the presumption has nothing to do with the law
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more than an assumption that the parties must be married irrespective of the nature of the marriage
actually contracted and irrespective of marriage if one is not actually contracted.
Mary Njoki vs John Kinyanjui Mutheru

The court held that promise to marry was not required to make the presumption of marriage arise nor
was the performance of nay customary ceremonies required. Further although a child or children There
would be an important factor in giving rise to a presumption of marriage , it is not a must in order to
give rise to it. court held long cohabitation and repute gave rise to a presumption that there was
marriage.
In The Matter Of The Estate Of Loice Njeri Ngige

It was held that before a party can be held to be married from long cohabitation he has to go to court
and obtain a declaratory order that he was married by long cohabitation. Objector claimed to be
deceased husband because of long cohabitation, had a child with her, paid part of dowry but court held
he had not proved his marriage to the deceased as no witness were called to prove that either the
customary or statutory marriage ever took place. This arises where a man and woman cohabit and hold
themselves out as man and wife.
Duncan Gachiani Ngare vs. Joseck Gatangi and Others

A woman claimed to be the widow of a deceased man and therefore entitled, together with her
children, to inherit his estate. The man had written a document, which was not a will that the woman
with whom he had disagreed was not, together with her children, entitled to inherit his estate. They had
lived together or cohabited from 1968 to 1975, when they separated after a quarrel and the man died
two months thereafter. They had four children and the man had opened bank accounts for them. He did
not pay any part of the dowry due under customary law to the woman’s family; neither did he perform
the ngurario ceremony. The court presumed marriage upon taking into account the long period of
cohabitation. In the court’s view there was no evidence, except for violent disagreements between the
parties, to rebut the presumption.
Alice Waithera Murigi vs. Robert Murigi

It was held that a period of seven years was long enough and a marriage can be presumed by
reputation.
Beth Nyambura Kimani vs. Joyce Nyakinyua Kimani& Two Others

It was held that the evidential burden is on the person claiming there was no marriage by presumption
to rebut the presumption and held there was a presumption of marriage where the parties had lived
together openly as husband and wife for 18 years. It quoted Veronicah Rwambah Mbogo vs. Margaret
Rachel Muthoni where the court stated that it matters not whether statutory or customary
requirements as strictly proved in a marriage. The court must go further and consider whether on the
facts and circumstances the presumption of marriage was applicable in the case.
Kizito Charles Machani vs. Rosemary Moraa

The court held that presumption was said to apply where the wife had previously been married to
another man, it was held that the presumption would apply and the first marriage was dissolved during
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cohabitation but by the time cohabitation started it had not been legally resolved. Court applied Hill vs.
Hill (1959) All ER 281 it was held that a presumption of valid marriage can still be made even though the
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Ann Wanjiru Njonge vs. Newton Gikaru Gathiomi&2 Others

The court held that two elements that are central to raise the presumption of marriage are; longevity
and repute that the cohabiters or cohabitants have demonstrated by their mode of life that their
association does, to all intents and purposes amount to marriage. The production of children is a
relevant factor to be taken into account but it is not itself sufficient to establish the existence of
marriage by cohabitation. That evidence must be adduced to proof the long cohabitation in this case no
witness of even a neighbour was adduced and the claim was dismissed.
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CUSTOMARY LAW AND THE PRESUMPTION OF MARRIAGE
Issues have arisen before the Kenyan courts over the applicability and suitability of this
presumption with respect to customary law marriages which are either polygamous or
potentially polygamous.
There are two divergent positions over the applicability of the presumption of marriage to
parties whose personal law is customary law.
i. There is the position that customary law does not know the presumption, and therefore the
same is an alien concept.
ii. The other view holds that customary law can accommodate the presumption of marriage.
See Hortensia Wanjiku Yawe vs. The Public Trustee
Hortensia Wanjiku Yawe vs. The Public Trustee

In this case the view taken was that there was nothing in Kikuyu customary law indicating that Kikuyu
customary law was opposed to the presumption of marriage. The presumption of marriage has its
origins in the English common law and therefore it is undoubtedly a common law concept,
contemplating only monogamous marriages. As a pure common law concept it would not recognize a
marriage where a married man is at the same time in cohabitation with an unmarried woman, neither
would it countenance a situation where a man is simultaneously cohabiting with two unmarried women.
Where the presumption is applied in English law the woman is regarded as a common law wife.
It would appear that customary law cannot accommodate the presumption. Customary law
does not tolerate irregular marriages.
Customary law marriages are a communal matter in the sense that it is not just a union of
individuals; it is a matter involving the two families.
Under customary law the marriage union is sealed by the families, not the individuals. Indeed it
is often described as an alliance of two family groups.
That being so, it is fairly easy to determine whether or not a marriage has been entered into
because, unlike English marriages, it involves the community at large who would consequently
know that a marriage has been entered into.
Under customary law the line between marriage and mere cohabitation is quite clear.
The main indicator of whether a customary law marriage has been contracted being the
performance of the customary rite which signifies the commencement or validity of a marriage
– the ngurario for the Kikuyu, the kuthea for the Kamba, the tying of the segutiet grass among
the Nandi, among the Luo, it is the presentation of the gonjoroya heifer to the bride by the
parents of the groom, among others.
Where the all important rite is not performed the association or cohabitation between the two
is regarded as mere friendship, and the woman is not a wife.
The Kenyan courts in an effort to make the presumption of marriage apply to Africans, that is
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those whose personal law is customary; have tended to broaden the principle.
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It has been described not as a principle of common law, but of common sense. In Hortensia
Wanjiku Yawe vs. The Public Trustee Wambuzi P. stated that the principle has nothing to do

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with the law of marriage as such, but is nothing more than an assumption arising out of long
cohabitation and general repute that the parties are married irrespective of the nature of the
marriage actually contracted. Mustafa JA added that all marriages in whatever form are basically
similar; and the presumption of marriage as a concept is beneficial to the institution of
marriage, to the status of the parties involved and their children and it is applicable to all
marriages howsoever celebrated. It is clearly discernible that the court is trying to apply the
presumption in a broader sense so as to make it beneficial to the family unit.
Whereas it was formulated as a common law concept applicable to strictly monogamous
marriages, the East African court sought in Hortensia Wanjiku Yawe vs. The Public Trustee to
extend its tentacles beyond the common law to cover persons whose personal law allowed
potentially polygamous marriages.(COMPARE THIS WITH THE BUSINESS OF AGREEMENTS TO
MARRY, WHY IS IT THAT THE ACTION FOR BREACH OF AGREEMENTS TO MARRY WILL NOT APPLY
TO CUSTOMARY LAW SITUATIONS WHILE IT IS BEING SAID THAT THIS PRESUMPTION IS BLIND
TO THE SYSTEM OF MARRIAGE THAT THE PARTIES HAVE GONE THROUGH).
It may be argued that the presumption is useful in circumstances where a person seeks to take
advantage of the failure to observe the requirements of a customary law marriage to avoid his
obligations to the woman or her children.
Such was the case in Peter Hinga vs. Mary Wanjiku

Where the man deliberately postponed the ngurario ceremony and thereafter abandoned the woman
he was cohabiting with and her children and got married to another woman by a Christian ceremony. He
asserted that since ngurario was not performed there was no customary law marriage and the children
were therefore illegitimate and not entitled to maintenance. It was held that there was a recognizable
Kikuyu customary law marriage between the parties arising out of a prolonged cohabitation, presumably
because certain Kikuyu marriage rites had been performed. The court took the view that the absence of
the all important ngurario did not invalidate the otherwise valid marriage. The decision however raises
several questions. No Kikuyu marriage can be said to be valid without the performance of the ngurario.
Secondly, there is really nothing like a customary law presumption of marriage. Marriage can only be
presumed on the basis of the common law principle, and clearly there is no like principle in customary
law.
This presumption has been applied to the Kenyan situation with regard to this assumption the
Kenyan courts have stated that this presumption existed under African Customary Law.
In Wanjiku Yawe the court found that this presumption can also be found under African
Customary Law. See the following cases:
Peter s/o Mikhayo

The accused cohabited with a lady for a period of between 4 and 8 months. it held that under
Customary law, that period was enough and in fact stated that under customary law, the moment you
start cohabiting the presumption is triggered
Duncan Gachiani vs. Joseck Gatangi & 2 Others
It was held that there was a marriage association which was impeded from reaching maturity by violent
disagreement and certain formalities including ngurario but held that court presumed the existence of a
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valid marriage from the long association.

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Beatrice Njeri vs. Lawrence Njenga Kanithi

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Where presumption of a marriage was held to exist for the reason that the parties held themselves out
as husband and wife to the world at large. And the villagers knew and referred to them as such.
Re Estate of Kittany
Where it was held that before a man or a woman is to be presumed to have been married by virtue of a
long cohabitation and repute there has to be a declaratory order from a court of competent jurisdiction.
Lucy Wambui Maina vs. Dickson Muhia Mutty & 2 Others
The court held that since no bride price was paid, no customary Kikuyu marriage was celebrated
between the parties. It also held that there was presumption of marriage between the parties since they
had cohabited for three years. It was further held upholding the decision in Njoroge vs. Njoroge&
Another (2004)1 KLR 611 that under Kikuyu customary law responsibility for the burial of a man falls in
the first place on his eldest son or his brothers but the wife can participate and attend the burial.
Philip Ratemo Buge vs. Marcella Mamboleo and Six others
The court held that it could still have held there was a presumption of marriage based on long
cohabitation and general repute besides finding there was a customary law marriage, in a matter where
there was no evidence of payment of dowry and where the court was prepared to hold that under Teso
customary law dowry can still be paid after the death of the husband.
Virginia Wairimu Wanjui vs. James Mbatia Wanjui

The parties had cohabited for seven years and within that period got four children, the man paid part of
the dowry payable under customary law, but the ngurario ceremony was not performed. The court
found that the ngurario ceremony was not necessary for a valid Kikuyu marriage, but if the court was
wrong on this ground it found that a presumption of marriage arose from the evidence and that it had
not been rebutted.
The court found from evidence that there was a marriage under customary law. The parties cohabited
between 1963 and 1974, and then separated. They had six children together who were named the way
children of married people are named under Kikuyu customary law. There was evidence that the man
met relatives of the woman, arranged to pay dowry and in fact paid part of it. The woman sought an
order that she was no longer bound to cohabit with him, for custody of the children and for
maintenance. The man alleged that she was not married to him as he had not paid dowry and ngurario
had not been performed, but he admitted the cohabitation, and that he had paid school fees for the
children. The court held that a customary law marriage existed since the same comes into existence with
the payment of symbolic dowry, a goat and a sheep. The decision is not sound there was no valid
customary law marriage due to lack of the ngurario ceremony. The court should have presumed
marriage from prolonged cohabitation. It would appear that this case tends towards the thinking that
presumption of marriage is not altogether alien to customary law.
Zipporah Wairimu vs. Paul Muchemi

A woman sought declarations that she was the sole guardian of the children of cohabitation. She had
cohabited with a man from 1963 to 1969 when he deserted her and left her with the minors. The parties
cohabited with the consent of their parents, and the man had paid part of the dowry payable under
Kikuyu customary law. She came to the relationship with a child from another relationship, but she got
three with the second man. The man also paid the symbolic dowry of a goat and a ram. The court found
that all that are necessary for a valid Kikuyu marriage are the payment of the symbolic dowry and the
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consent to the marriage of both parents and the prospective spouses and that in this case the parties
were man and wife under customary law. Ngurario was not performed. Was this not a case for
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presumption of marriage?

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MUSLIM LAW AND THE PRESUMPTION OF MARRIAGE
Under Muslim Law marriages arising out of cohabitation are not permitted. One has to comply
with all the requirements of marriage.
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LECTURE 10-12: 18TH NOVEMBER-2ND DECEMBER 2013- 5.30-7.30PM (LECTURE HALL B5)
TOPIC 8: JUDICIAL SEPARATION
Introduction
Judicial separation may be decreed by the court on any ground for which divorce may be
granted: this relieves the parties from the normal grounds of cohabitation, but does not
terminate the marriage.
The court makes orders concerning the future custody of children, and can order the husband to
maintain the wife and children after a decree of separation.
The Subordinate Courts (Separation and Maintenance) Act (Cap 153 Laws of Kenya) also
provides that wives in monogamous marriages may seek certain orders against their husbands
on a wide range of grounds, which include, inter alia, desertion, persistent cruelty, willful
neglect to maintain and habitual drunkenness.
Subordinate Courts (separation and Maintenance) Act S.3. (1) Any woman may apply to the
court for an order or orders under this Act on any of the following grounds, namely –
a) That her husband has been convicted of an offence against her under any of sections 234, 236,
237, 239, and 251 of the Penal Code;
b) That her husband has deserted her;
c) That her husband has been guilty of persistent cruelty to her or her children or of wilful neglect
to provide reasonable maintenance for her or her children whom he is legally liable to maintain;
d) That her husband has, while suffering from a venereal disease and knowing that he was so
suffering, insisted upon having sexual intercourse with her;
e) That her husband has compelled her to submit herself to prostitution;
f) That her husband is an habitual drunkard or habitual drug-taker.
When the husband has in the opinion of the court been guilty of such conduct as was likely to
result and has resulted in his wife submitting herself to prostitution, he shall for the purposes of
this Act be deemed to have compelled her so to submit herself.
(3) An application under this Act shall be made to the court having jurisdiction within the area in
which any such conviction has taken place or in which the cause of complaint has wholly or
partially arisen.
(4) For the purposes of this Act, "children whom he is legally liable to maintain" includes, in
addition to children of the marriage, any child of the wife born before such marriage (whether
such child is legitimate or illegitimate) until such child attains the age of sixteen years or until
the death of its mother, whichever event first occurs.
Grounds For Judicial Separation

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Hindu Marriage and Divorce Act section 12 provides that a petition for judicial separation may
be presented to the court by either the husband or the wife on any of the following grounds –

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a) On any of the grounds on which a petition for divorce might be presented by that party; or
b) That the respondent has deserted the petitioner without cause for a period of at least two years
immediately preceding the presentation of the petition; or
c) That the respondent has since the celebration of the marriage treated the petitioner with
cruelty; or
d) That the respondent has failed to comply with a decree for restitution of conjugal rights.
Peter Mwenda Kithome vs. Teresa Njeri Kinyari

It was held that s.25 and 26 gives the court power to make orders for alimony pending suit and alimony
and maintenance for the wife and children court also stated the overriding goal in assessing the amount
payable is the principle that parties lifestyle prior to the separation should be maintained in as much as
possible to the same standards of life even as in separation. The husband was ordered to pay half of the
monthly expenses of the wife and the children.
Elizabeth Wanjiru Njomo vs. John Francis Njomo & Another

It was held that matters of judicial separation are governed by the provisions f matrimonial causes act
an there is no provision for the involvement of the police in execution of the orders.
Matheka vs. Matheka

It was held that where a statutory marriage subsists, a party to it cannot enter into another contract of
marriage (even customary) because he lacks capacity a judicial separation cannot flow from such a
union.
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1. DIVORCE UNDER THE GENERAL LAW

Introduction
The termination of a statutory marriage (that is to say the monogamous civil, Hindu and
Christian unions) is not consensually decided by the parties.
Theoretically, termination is possible during the lives of the parties only by judicial decree,
except of course, in cases of death of one or both parties.
The law applicable, the Matrimonial Causes Act, is closely modeled on English law, the
Matrimonial Causes Act of 1939 of of the United Kingdom.(Repealed to Divorce Reform Act)
The law of Divorce in Kenya has remained substantially the English law it received as a British
colony.
Grounds of Divorce under Statute

Grounds for divorce under the Matrimonial Causes Act are: adultery, desertion for three years
without cause, cruelty and incurable unsoundness of mind involving five years continuous care
and treatment, and (for petitions by the wife only) rape, sodomy or bestiality by the husband.
1. Adultery
Under the Matrimonial Causes Act both the husband and wife can sue for divorce on the
ground of either spouse’s adultery.
Section 9(2) of the Matrimonial Causes provides that on a petition of divorce represented by
the wife the court may if it thinks fit, direct that the person with whom the husband is alleged to
have committed adultery be made a respondent.
Analyse the following cases
Matildachemeli vs Irungu Bachia& Another

The court held that the name of a co-respondent can be struck out since the leave of court was not
sought but that does not warrant the striking out of the entire petition as it is a matter of evidence of
how the petitioner intends to prove the allegation of adultery. The name of the co-respondent was
struck off together with the particulars of adultery.
Edward Wageni vs. Agnes Wangari Mwaura

The court declined to dissolve marriage on ground of adultery because the alleged adulterer was not
identified even by name nor was he made a co-respondent as required in law.
Wangari Maathai vs. Mwangi Maathai
It was held that according to section 10 of the Matrimonial Causes Act that if the court is not satisfied as
to feel sure of the guilt of the respondent the n the charge of adultery has not been proved. Court
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stated that the standard of proof is very high and circumstantial evidence in proof thereof ought to be
carefully and cautiously considered. The charge must be proved clearly beyond establishing a mere
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adultery. In this case evidence that the co-respondent stayed in many occasions both in day and night
with the appellant wife at her house when the husband was away was held to lead to the conclusion
that adultery had been committed on those occasions. Adultery was proved by circumstantial evidence.
Kristina D/O Hamisi vs. Omari Ntalala & Another

the appellant petitioned for divorce on his adultery with his second wife who he had married under
Islamic law. He had been married to the respondent under Christian ceremony and had also resided with
the respondent for some time after his second marriage. Held that since the second marriage was
invalid, he had committed adultery with the second wife and the respondent’s condemnation related
only to the adultery which had taken place prior to her departure and not after her departure.
Alexander Kamweru vs. Anne Wanjiru Kamweru
It was held that the feeling of some certainty by the court , that is “being satisfied as to be sure” means
being satisfied on preponderance of probability. It held that section 10 matrimonial causes act does not
refer to proof beyond reasonable doubt and it would be proper to put or place the burden of proof at
the level of feeling certain or sure that a matrimonial offence has been committed.
Adultery- is defined as a voluntary or consensual sexual intercourse between a married person

and a person (whether married or unmarried) of the opposite sex not being the other’s spouse
during the subsistence of marriage. Rayden vs. Rayden Therefore the intercourse must be
voluntary..Denis vs. Denis- desired to commit adultery but unable to effect penetration.
The adulterous act must be voluntary as opposed to rape where there is no consent. One who
alleges non-consent must prove.
A person may be able to establish that he lacked the necessary mental capacity to consent to
intercourse.
Drunkenness if it makes one loose his/her senses, this does not amount to adultery. S vs. S
Proving adultery is difficult. The standard of proof is beyond reasonable doubt. Maathai vs.
Maathai
See Naomi Nyambura Ndonga vs. Edwin Muchugia Karanga& Another
Naomi Nyambura Ndonga vs. Edwin Muchugia Karanga& Another

The court upheld the ruling in Charles Irungu Kioi vs. Susan Wanjiru Irungu where the court came held
that the standard of proofing adultery is somewhere between reasonable doubt and balance of
probability. Adultery can be inferred from an affectionate relationship and opportunity for commission
of adultery.
Meme v Meme
The Court held that to prove adultery evidence of a guilty inclination or passion is needed in addition to
the opportunity to commit it. The evidence of a single witness is enough without corroboration.
Court can also infer adultery where a child is born outside the normal gestation period e.g
where one spouse was away. [Prestone Jones vs. Prestone Jones]
See also
Florence Makundi vs Wellington Makundi
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The respondent had brought two women whom he was living with in the matrimonial home and did not
deny living with them. Court held he was guilty of adultery and dissolved their marriage.
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Njenga vs Njenga

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Evidence rebutting presumption must be cogent and convincing. Where a husband alleges that a child
born during the subsistence of marriage is not his, evidence should be adduced to establish paternity.
Alfred Adagichata vs Hellen Siemeko Adede

Stated that a woman who becomes pregnant otherwise that through sexual intercourse by her husband
can be presumed to have committed adultery although with modern scientific advancement a woman
may be pregnant without sexual intercourse, a factor which may give rise to cruelty rather than adultery
even where a party is rightly and generally believed to be engaged in adultery, the party at fault cannot
be condemned without evidence to prove it. Also stated that there is no law that precludes a man from
seeking maintenance from his wife.
Another indication of adultery is cohabitation with another person during the subsistence of the
marriage.
Ann Wanjiru Njogu vs. John Warui Weru

The respondent admitted having a liaison with another woman with whom they had 2 children. That
was proof of adultery as he did not have capacity to go into another marriage during the subsistence of
the monogamous marriage with the petitioner.
Bob Bovver vs Catherine Wanjiru Mbuthia
Divorce granted where the wife was cohabiting with another man as husband and wife, adultery proved.
Salmon Mwandime vs Ana M. Mwandime

The respondent (wife) had been with a man in the bush for three hours and when the man saw the
petitioner he ran away leaving his bicycle. Court held that his running away leaves one to imply that
theirs had not been an innocent association and that was evidence that he had committed adultery with
the (respondent.)
Courts should also admit evidence of confession by a spouse. One is required to file a
discretional statement asking court to treat him with leniency where they are admitting they
have committed adultery.
Glean vs Glean
The husband was found to have a veneral disease.
Fransis Cambuche v Michel Tinga Jefwa &Another
The respondent admitted he had another family and court held he had admitted adultery. Medical
evidence is applicable in England by virtue of section 3 of matrimonial causes act Kenyan courts are
allowed to apply English jurisdiction
Where a petitioner alleges adultery by the other spouse he /she must enjoin the person
involved in the adultery in the proceedings see Jane Kiyo Mwathi vs. Peter Mwathi Mbugua
See also
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Barbra Otunga-Mohamed vs. Ahmed Mohamed Ali

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It was held that Section 9(1) of the Matrimonial Causes Act makes citation of the co-respondent

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mandatory on the part of the husband petitioner who wishes to rely on the ground of adultery of the
wife in divorce proceedings court also held that Section 9(2) of the Matrimonial Causes Act does not
provide that a wife petitioner needs leave of the court to cite the woman she alleges to have an
adulterous association with the husband.. it is silent on whether wife petitioner should or should not
cite and it is open to court to ignore non-citation in case of wife petitioner. Court held that in purporting
to lay a lower standard of procedure for a wife who seeks to rely on adultery for divorcing her husband ,
subsection 2 of section 9 of the matrimonial causes act contravenes the constitutional tenet of non
discrimination on grounds of sex and that the subsection is unconstitutional and a nullity and not
binding not withstanding the fact that provision of section 4(b) of section 82 of the constitution is to the
effect that the provisions outlawing discrimination does not apply inter alia to divorce. Also held that
allegation of witchcraft ought to be proved with concrete eidence. The standard of proof is high.
Mary Mbula Muthiani vs. Francis Muthiani

It was held that where adultery is relied on the person alleged to have been involved in adultery
association with the respondent has to be cited as a co-respondent and given an opportunity to answer
the allegation. The ground of adultery was dismissed since the alleged person was not named as a co-
respondent. Further held that standard of proof in matrimonial offences ought to e somewhere
between balance of probabilities and beyond reasonable doubt and that whether legal cruelty has been
established in a given case is a question of fact to be determined on the peculiar circumstances of each
case.
2. Cruelty
It is a grave and weighty conduct that either causes danger to life or limb, health both mentally
or bodily.
Conduct must be of a grave and weighty nature such that to make continued cohabitation
virtually impossible this must be distinguished from the ordinary wear and tear of married life.
There must be injury to health or a reasonable apprehension thereof. See Meme vs Meme
See also
Edith Kagendi Abita vs Peter Mbotela

Where the petitioner alleged that the respondent has left her mother and sister to control and interfere
with her matrimonial duties. Held that the petitioner had not proved cruelty to the required standards;
she did not give names of the respondent’s sister and mother who tormented her nor did she dates
when they were cruel to her. However the court dissolved the marriage for the reason that it had
irretrievably broken down without the prospects of being salvaged since the parties were not blessed
with children and were living separately.
Ngerechi vs Marindany
Court granted a divorce on account of husbands using abusive and obscene language in public towards
the wife causing her psychological torment. court held this amounted to cruelty and the marriage had
irretrievably broken down as a result.
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Mercy Wanjiru vs. Job Kaguongo

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Divorce was granted on account of cruelty in form of physical and mental violence. The evidence from

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medical reports and police abstracts was held enough to proof cruelty.
Rosebella Adhiambo Omondi vs. Daniel Michael Owiti
Husband used to threaten the wife with death, abused her in private and public because she could not
give birth and that she was useless. Court held upholding the decision in Meme V Meme [1976] eKLR
that cruelty is define as willful and justifiable conduct of such character as to cause danger to life, limb
or health, bodily or mental as to give rise to a reasonable apprehension of such a danger. Held that the
fact that the wife cannot give birth to any child to the husband cannot justify cruelty in matrimonial
relationship. Divorce was granted.
Kamal Tayantilal Shah vs. HinaKamai Shah

It was held that the only person who can take shelter under section7 of the Matrimonial Causes Act Cap
152 laws of Kenya is a petitioner who had filed the separation and maintenance cause under
Subordinate Courts (Separation And Maintenance) Act Cap 153 laws of Kenya. After filing the divorce
cause the petitioner shall not be required to prove the allegations if they are similar to those alleged and
proved in the separation cause and the court shall regard the order in the separation cause as sufficient
proof of such allegation. The only requirement is that the petitioner has to give evidence. The parties in
this case filed the divorce cause under Section 7 of the Matrimonial Causes Act after they had been
separated for over 9 years following an order of judicial separation
Asheet Sharma vs. ALPA Sharma

Wife did not cater for, nor care for or look after the children, she was impulsive and behaved in unusual
and abnormal manner and that she was not interested in the conjugal relationship. Court held such
conduct amount to cruelty and dissolved the marriage.
Alevtina Nikolaievna Shumlova V Mugambi Rinkanya & Another
Court held that where a husband left the wife for a whole night in the sitting room and went to sleep
with another woman in the master bedroom for a whole night that amounted to cruelty. It also held
that for one to prove desertion since the petitioner did not establish which was the matrimonial home
that the other spouse deserted and whether there was no cause for desertion.
Sonia Simbabawe vs. Angelos Zinis

Court ordered divorce on ground of cruelty. The husband beat the wife with his leather belt and later
strangled her till she became unconscious. court held those acts have affected the petitioner mentally
and have inflicted physical pain to the wife causing her to flee her matrimonial home.
Lucie Anne Holmes vs. Gary Michael Holmes

Court held that a party to a marriage is said to treat the other with cruelty if he so treats the other in a
manner which causes detriment to her health and /or in a manner likely to cause serious injury to the
other’s health.
James Muya Odhiambo vs. Emilly Akello Okundi & 2others

The court held that conduct of drinking habits complained of were of themselves sufficient to warrant
divorce being granted based on cruelty as a matrimonial offence. Further held that mere suspicion and
/or opportunity to commit adultery does not afford sufficient ground fro the grant of divorce. court held
that it could not order dissolution of the statutory marriage simply on the allegation that it has
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irretrievably broken down, one of the standards set down in a customary marriage in Selina Anyango vs.
Sila Oyugi [1979] KLR 279
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Wason vs. Wason

Petitioner sought divorce o the grounds that she was granted a non-cohabitation order and had not
resumed cohabitation since then. The Hindu Marriage And Divorce Act Cap 157 makes it aground of
divorce that a decree of judicial separation has been in force between the parties for a period of at least
two years immediately preceding the presentation of the petition and the parties have not cohabited
since the date of decree. The petitioner did not however obtain the decree under section 12 of the act.
The non cohabitation order which under Section 4 of the Subordinate Courts (Separation and
Maintenance ) Act has the effect in all respects of a decree of judicial separation on the ground of
cruelty.
Harriman vs. Harriman
Where it was held that a non cohabitation order made for desertion and willful neglect to provide
maintenance and not on a finding of cruelty could not be regarded as a decree on the ground of cruelty.
Further the cohabitation order being made by consent could not in any event be used as a decree of
judicial separation for the purposes of section 10 (1) (g) of the Hindu Marriage and Divorce Act .
However a non cohabitation order made by a magistrate can be used as a basis of Hindu divorce if it is
made on a finding of cruelty, on the merits.
Meme vs. Meme

Held that the question whether cruelty had been established was a matter of degree and fact to be
decided on all the circumstances of the case. To establish cruelty the complainant must show to the
satisfaction of the court misconduct of a grave and weighty nature, real injury to the health or
reasonable apprehension of such injury; that the injury was caused by misconduct of the respondent
and on the whole of the evidence the conduct amounted to cruelty in the ordinary sense of the word.
That the husband could not deny the acts of cruelty which had been the basis on which the decree of
judicial separation had been made in absence of nay indication that the court making that decree had
reached a wrong decision, and those acts must be regarded as proved. Also held that the evidence
required to prove adultery must be more than mere suspicion and opportunity; evidence of guilty
inclination or passion was necessary; nevertheless evidence of a single witness might suffice to establish
adultery, unless that evidence aroused the suspicion of the court when corroboration would be
required. Further held that intercourse does not necessarily amount to condonation.Condonation is the
complete forgiveness of the matrimonial offence and the restoration of the respondent to the same
position as he/she occupied before the offence was committed.
Nunzio Colarossi vs. Michelin Colarossi

In this case the husband during a quarrel with the wife smashed various items in their house and also
threatened to kill the wife if she slept in his room. Thereafter he left the matrimonial home and never
returned and the wife filed judicial separation on the ground of cruelty. The court held that the standard
of proof for cruelty is beyond reasonable doubt and the wife had failed to prove cruelty to the required
standard. The petitioner must prove actual or probable injury to life, limb or health. Words of passion,
even of threatened violence, are not sufficient to prove cruelty if they are spoken in the heat of anger
and without any intention that they are to be carried out. In considering whether a single act will be
sufficient to constitute cruelty by itself court must have regard to the circumstances under which the act
took place.
Esther Mungai vs. David M Thiru

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Held the husband was guilty of cruelty and dissolved the marriage. He used to beat the wife many times
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Esther Wangui Bartley vs Genekene Bartley

The husband wrote a letter where he informed that petitioner that he did not want to continue
supporting her and the playing the role of a husband and father to the children anymore. Court held
that the marriage had irretrievably broken down and dissolved it.
Liliane Nyaguthii vs Mohamed Sandimroimji
Held it is not enough to allege the respondent assaulted the petitioner, tangible evidence must be led to
establish the claim. The court upheld decision in Meme v Meme [1976] KLR13 where it was said for
cruelty to be established two tests must be satisfied. First whether the conduct complained of is
sufficiently grave and weighty to warrant the description of being cruel and secondly whether eth
conduct has caused injury to health or reasonable apprehension of injury.
Honfitzwanga v Margaret Bulagekibazzi

The wife induced the children of the marriage to leave the matrimonial home and follow her to Uganda
while the husband was ill in hospital. Court held that that act caused the husband mental anguish
constituted cruelty and dissolved the marriage.
Monica Wanjiku Mwangi vs Ali Husein Kassim
The respondent neglected the petitioner and never supported her which caused her to go back to her
parents after her household goods were auctioned due to non payment of dues and the respondent
failed to cater for safety and welfare of the petitioner and the child.. Court held this amounted to cruelty
and cannot be termed as normal wear and tear of marriage life.
Gollins vs Gollins
Lord pearce “whereas a blow speaks for itself, insult, humiliation, meanness depravation and the like
may need interpretation of unduly ……………..the conduct should be grave or weighty and in effect
should be substantial to the person complaining.
Peninah N. Kiilu vs. Samy N. Kamina

Held that in line with the holding in Gollins vs Gollins the court was satisfied that the conduct consisting
persistent neglect,excessivedrinking,denial of conjugal rights, denial of emotional, psychological and
moral support on the part of respondent was intolerable and thus grave and
weighty,distressful,embarrassing to the petitioner to amount to cruelty.
King vs King
Mere apprehension of danger eg due to threat may be cruelty. Mere intention to be cruel is not an
element of cruelty except if the other spouse apprehends danger.
Alonso Aznar Rivadeneya vs. Mariflor Hernandez

Held that it amounted to cruelty and dissolved the marriage where the wife used to drink alcohol and
became aggressive in public and other places and this behaviour embarrassed and caused the husband
mental anguish.
100
Jinatal Patel vs. Simit Kumar S. Patel

Acts of taking alcohol, assaulting the wife, bad temper and use of vulgar language on the other spouse
was held to amount to cruelty.
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Williams vs Williams.
Using abusive and obscene language to the other spouse causing psychological torment can amount to
cruelty.
Nasim Hassan Haji vs Bernard Metzger
Wife granted divorce on ground of cruelty, the husband assaulted her causing her suffer mental stress
and her health deteriorated held that the .marriage had irretrievably broken ground.
Mariandiallo vs Etilesoshene Pierre
The husband had poisoned the petitioner’s food, repeatedly locked her in her bedroom and tried to set
the room on fire and demanded that she gives him money to buy his ticket, he used to drink and beat
her marriage dissolved on cruelty grounds.
Nwankwo vs. Nwankwo

Held that the conduct subsisting for seven years constituting persistent neglect, restricted social
interaction, denial of conjugal rights for over one year and threats upon physical and social well being
was intolerable and grave and weighty, distressful, embarrassing and emotionally traumatizing to the
petitioner to amount to cruelty. The court adopted the ruling in Russel v Russel [1897] P. 322 which had
held that there must be danger to life, limb or health or bodily or mentally or a reasonable apprehension
of it to constitute cruelty.
Lydia Maguza vs Jacob A. Otieno Wandolo

The respondent assaulted the petitioner severally in presence of her child forcing her to flee the
matrimonial home for her own security. Marriage was dissolved for cruelty.
Kenneth Kamisoi vs Dorin T. Kahngalzi

The respondent was abusive and quarreled the petitioner even before other people and she would go
home late at night and court held that this was cruelty and led to mental torture of the petitioner who
was a pastor and dissolved the marriage since it had irretrievable broken down.
Elizabeth Magondu vs Washington Magondu

Court held that although the wife (petitioner)was more responsible for the break up of the marriage
due to her incapacity to sympathize with the husband during his low periods when he lost his job, both
of the m have contributed in the break due to their respective acts and dissolved the marriage.
Louse Behir vs Peter Robert Behr

Parties had ideological differences, the petitioner desired to have children and settle while the
respondent was not interested with children, the husband was absent for long periods after he took a
job as tour guide. Court held this amounted to cruelty.
Hurbert vs Doris Mwikali Kamula

Court held that the marriage had irretrievably broken down for the reason that the marriage was based
on a mistake. The wife expected to benefit from the resources of the husband while the husband
expected love and comfort from the youthful. The wife and her son assaulted the petitioner n he
reported to the police though no action was taken. Divorce granted.
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Alonso vs Mariflor Hernandez

Held that it amounted to cruelty and dissolved the marriage where the wife used to drink alcohol and
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mental anguish
Jinatal Patel vs. Simit Kumar S. Patel
Acts of taking alcohol, assaulting the wife, bad temper and use of vulgar language on the other spouse
was held to amount to cruelty.
Hms vs Mhcs
Held that constant abuses, neglect and in the end abrupt desertion without cause are acts of cruelty
which cannot be termed as normal wear and tear of married life.
Kamuyu vs. Mbogo

The respondent was a habitual drunkard who used to come late at night and beat the petitioner and
her child traumatizing the child and he never supported the family, court held this amounted to cruelty
and dissolved the marriage. The court held that the ground of adultery against the respondent was not
proved to the required they entered a hotel and later the wife came with that car at home another time
were enough to prove adultery standards since the co-respondent was not named in the petition.
Vetle W. Jorgensen vs. Faitau Jorgensen

Parties had been living separately for more than 27 years since the husband abandoned the family
divorce granted.
Asheet Sharma vs. ALPA Sharma

Wife did not cater for, nor care for or look after the children, she was impulsive and behaved in unusual
and abnormal manner and that she was not interested in the conjugal relationship. Court held such
conduct amount to cruelty and dissolved the marriage.
Alevtina vs. Mugambi Rinkanya & Another
Court held that where a husband left the wife for a whole night in the sitting room and went to sleep
with another woman in the master bedroom for a whole night that amounted to cruelty. It also held
that for one to prove desertion since the petitioner did not establish which was the matrimonial home
that the other spouse deserted and whether there was no cause for desertion.
Godfrey Macharia Kiruhi vs Josphine Wanjiku Macharia

The wife had conspired to murder the husband, was charged and convicted in court before the high
court allowed her appeal on technicality she also practiced witchcraft causing him mental cruelty and
anguish court held this amounted to cruelty and dissolved the marriage.
Peter Karori Amos v Mercy Njeri Kamau & Another

The wife started wearing miniskirts, staying out without explanation, being in possession of used
condoms when condoms were not use between them, exposing children to bad morals amounted to
cruelty and marriage was dissolved.
Earnest Waithaka vs Winnie Wambui Hunja

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Husband deserted the wife immediately upon the birth of their child held that this must have been a
painful; experience for her and dissolved ht marriage for cruelty and desertion.
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Held that under section 7 of the matrimonial causes act the decree of judicial separation is the sufficient
proof of the grounds on which it was granted and held that acts of cruelty are sufficiently proved by the
decree of judicial separation.
3. Desertion
Section 8(1) (b) of the Matrimonial Causes Act requires that a petition for divorce may be
presented to the court either by the husband or the wife on the ground that the respondent has
deserted the petitioner without cause for a period of at least three years immediately preceding
the presentation of the petition. See Anastasiah Njambi Kareko vs. Parminus Ngugi Mbugua
There is no definite definition of desertion but the main characteristics of the offence are, the
fact of separation; the intention to desert; the lack of nay justification for the separation and the
lack of consent by the respondent.
There must be factual separation coupled with the animus deserendi to constitute desertion.
The mental element required is an intention to end the matrimonial union permanently to an
end.
Where the party who stays behind by reason of conduct on his part made it intolerable for the
other spouse to stay he is said to be in Constructive desertion.
One party may physically expel the other, or order the other to leave, on party may be guilty of
conduct which is equivalent to driving the other away.
Desertion is not the withdrawal from a place, but from a state of things. There must be
separation of households, not separation of houses. If parties are living under the same roof but
are living completely separate lives, the fact of desertion is present.
However refusal to perform marital obligation does not by itself constitute fact of desertion.
Joyce Naitore W.Mutuota vs. Isaak Makani Kamutuota

The husband just packed his belongings and left in a huff and was not seen for six years. The court held
the desertion by the husband was voluntary and deliberate therefore was direct and not constructive
and granted divorce.
Sabina S. Musyoka vs. Peter M Mwanzia

The court held there was desertion where the parties had not lived together for a long period, the
respondent never ate from her house for fear of poisoning, and he never entered her bedroom for along
period of about 20 years. Court held the marriage had irretrievably broken down the parties having
been separated for over twenty years and that ordering them to return to each other would be a futile
exercise. Also the court held that any property acquired by either party after the two ceased
cohabitation will solely belong to the party who bought it. Court ordered the parties to file an inventory
of properties acquired during cohabitation.
Jonas Mwangi Muthoni vs Zainab Nduta Mohammed

The wife was forced to move out of matrimonial home after she saw the husband in act of sexual
activity with her neighbor, she also found under wears and clothing of a woman in their house. Held that
the husband was guilty of desertion and adultery.
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Frank Mwangi Gathaara vs Faith Waruguru Mwangi

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marriage was celebrated and there was no sufficient reason shown why the tree years requirement
should be waived.
Dieter Wolfganfrey vs Nermidin Mohamed Frey

It was also held that the petitioner had not discharged the burden of proving adultery because he did
not state who the respondent had extra marital affairs with and he did not make the adulterer a co-
respondent.
Wainaina vs. Kiaire

The court held the petitioner to be in constructive desertion for the reason that the respondent
deserted the matrimonial home due to physical and emotional cruelty by the petitioner.
Factual separation is pre-requisite to desertion.

See also the following cases
Theodore Epey Ayuk Oben vs. Winfred Gakenia Macharia

The court stated that the major elements required to prove desertion are the de facto separation of
spouse, the animus deserendi, the absence of consent on the part of the deceased spouse and the
absence of nay reasonable cause for withdrawing from cohabitation on the part of deserting spouse.
Patrick Ngao Mutisya vs Judith Ndila Mutisya

The wife deserted the matrimonial home and all efforts to persuade her come back had failed, marriage
was dissolved.
Daniel J. Katuga vs. Jane Wamwea Katuga

The respondent moved out of their matrimonial relation by abandoning their bedroom and the court
held that amounted to constructive desertion and dissolved the marriage. Court also held that the same
principles applied under s.17 mwpa in relation to distribution of marital property shall have to be
observed in the settlement of marital properties under the matrimonial causes act and held that direct
and indirect contribution is a matter of fact and that indirect contribution by the wife to the family
income by looking after the welfare of the family must form a basis just like a financial contribution.
Samuel Kere Njuguna vs. Margaret Nyakio Kere

The wife deserted the matrimonial home without cause and failed to return and cut off all means of
communication.
Elizabeth Kasaya Ongadi vs. Henry Odhiambo Okello

Parties had separated for ten years and the husband was cohabiting with another woman.
Albina Kinyua Rono vs. Alfred Kimitei Rono

The husband deserted wife for over 10 years and marriage was dissolved. Further court stated that in
the atmosphere of fear and distrust no marriage could be sustained.
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Fransisca Mbuche vs. Michael Tinga Jefwa& Another

Husband chased the wife after beating her and they separated for 11 years, the marriage was dissolved
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Frank Preddy vs. Monica Audrey Frida Preddy

The husband had been deserted by his wife for a year. He visited the wife’s house and spent ten days in
her house to see his children but the husband and wife occupied separate bedrooms. Court held that
the husband’s stay in his wife’s house did not constitute such a living together as would operate in law
to break the continuous period of desertion.
Campbell Mc Neill vs Ruth Mc Neil

The respondent left the appellant in 1945 with the appellant’s consent for the purposes of taking the
children to the U.S.A and educating them there. The respondent did not return and the petitioner for
divorce contended there was animus deserendi. Court held that there was no evidence that the
respondent ever expressed a direct refusal to return to cohabitation with the petitioner or announced
any intention of bringing the cohabitation permanently to an end. The appeal was dismissed.
Malison V Malison [1961] E.A 185 the wife living in Nanyuki refused to join the husband who was
employed away from the matrimonial home in Gilgil . Court held on divorce petition by the husband on
ground of desertion that the refusal by the wife to join the husband was unreasonable however, the
evidence fell short of establishing an animus deserendi on the part of the wife. Held that the burden of
proof is heavier than in ordinary civil action.
Colbeck vs. Colbeck

Condonation – the wife petitioned for divorce on ground of cruelty, after the respondent (husband) filed
an answer denying the cruelty and pleading condonation he instructed his advocate not to defend the
cause. The wife had been hit by the husband with a milk jar cutting her badly when she was preparing to
take children to coast. Being determined to leave the husband she nevertheless went to coast for the
sake of children but upon her return she waited for the children to go to school and left the matrimonial
home. Held there was no evidence to suggest collusion and the husband’s insistence on his wife proving
her allegations of cruelty was not consistent with collusion. There was ample evidence of cruelty and
divorce granted on that ground.
Further held that it is a question to be determined by the court whether the conclusion can be drawn
from the circumstances that an act of intercourse constitutes forgiveness and reinstatement. There was
no reason to disbelieve the petitioner that they were still quarrelling and that she never changed her
firm intention to leave the respondent as soon as circumstances permitted; accordingly there was no
re-instatement and there was no condonation. Court stated that there is no factual presumption as such
from the permitting of intercourse by the wife that she has necessarily condoned the matrimonial
offence.
Syan vs Syan
It was held that mere wish that the other spouse should leave is not by itself sufficient to constitute
constructive desertion. It must be accompanied by grave and weighty character so as to make
cohabitation virtually impossible. In this case the wife agreed, at the behest of her in-laws to move into
her parents house and did not regain entry thereto, the court granted divorce on the ground of
desertion by the wife.
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Patel vs Patel
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burden than that which lies on a party to an ordinary civil action. The petitioner has to proof that the
respondent left the matrimonial home; that she left without the husband’s consent; that she left with
intention permanently of ending cohabitation; and, that she left without just cause. Court held that
where a prima facie case of desertion has been made out, the burden of proof passes to the party
alleged to be guilty of desertion to satisfy the court that there are reasons which absolve him. Court also
stated that to excuse desertion, it is not necessary to prove any matrimonial offence. The court followed
the decision in Saunders V Saunders [1965] 2 W.L.R 35 where it was held that the general test of what
conduct amounts to constructive desertion is whether the defendant has been guilty of such grave and
weighty misconduct that the only sensible inference is that he knew that the complainant would in all
probability withdraw from cohabitation with him, if she acted like any reasonable person in her position.
Court further stated that if there is in fact desertion without cause, it would be determined by a bona
fide offer to return, made before the filling of the petition. A wish to return is not enough, it must be
conveyed to the deserted party and there is no obligation on the deserted party to make any overture. It
was also held that it is not the usual practice of the court to condemn a wife with costs in matrimonial
proceedings, except where it is shown that she has sufficient separate estate. In this case this was not
shown and the husband was condemned to bear the wife’s costs.
Salina Anyango vs. Sila Oyugi

It was held that under Luo customary law a wife’s petition for divorce will not fail merely because she
cannot establish the existence of a matrimonial offence as this is only one of the matters to be taken
into account the other consideration being the existence and number of children; the ability and
willingness of her father to return the dowry and generally whether the marriage has irretrievably
broken down.
Boniface Ngarachu vs. Lucy Ngarachu

Parties separated for a period of over 4 years and the marriage dissolved. Court adopted a deed of
settlement that settled the matters of custody of children, maintenance and the division of the
matrimonial property. Court also ordered that decree absolute be issued after a period of one month to
enable settlement of the payments under the deed of payment which can only be made after decree
absolute has been issued.
JKM vs. NMZK

Divorce granted where the petitioner left the matrimonial home for the reason that the husband used
to chase the petitioner and her child away because she had refused to take the child she got before
marrying to its father. The husband was guilty of constructive desertion for 20 years without just cause.
Termination of Desertion
A spouse who has been deserted must take his partner back.
The party making an offer to resume cohabitation; the offer must be genuine in that it must be
to return permanently and the person offering must have both the intention and the means to
implement it if it is accepted.
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The offer must also not be subject to unreasonable conditions. Desertion can be terminated by
resumption of cohabitation which destroys factum of desertion; if one party subsequently
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supervening events may remove the duty to cohabit (eg a court order such as a decree of
judicial separation) which releases the parties from the duty to live together will terminate
desertion.
See the following cases (Where the courts held the marriage have irretrievably broken down
Gurpreet Kaur Rayat vs. Balraj Singh Sokhi

The court dissolved a marriage on ground of desertion. The husband fled from the wife and his
whereabouts were not known to the petitioner for over four years.
James Kamangu Ndimu vs Margret Wanjiru Ndimu & Another

The plaintiff filed a suit for a declaration that there exists a marriage by presumption of between the
plaintiff and the s1st defendant and applied for an injunction order to restrain the 1st defendant from
celebrating a marriage pending the dissolution of their marriage. The defendants sought applied to
cross-examine the plaintiff in respect of an affidavit he had sworn in support of the application for
injunction. Court held that the applicants had not placed facts before the court that would justify or lay
the basis for the court to exercise its discretion to allow cross-examination of the plaintiff on his
affidavit.
Bars to Divorce under Statutory Law

There are certain bars to divorce: some are absolute, such as collusion between the spouses in
presenting the petition or connivance by the spouse at the other’s adultery, or condonation of
adultery or cruelty; others are discretionary, such as adultery by the petitioning spouse,
unreasonable delay, cruelty, conduct conducing to adultery, desertion or insanity, and desertion
preceding the alleged adultery or cruelty.
If an absolute bar is found to exist then the court has no choice but to refuse to grant the
divorce where a discretionary bar is proved the court may or may not grant the petition.
1. Absolute Bars
(a) Connivance
Connivance means consent to or acquiescence in adultery committed by the other spouse.
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:
Churchman vs. Churchman

It is the essence of connivance that it precedes the event and generally speaking the material event is
107
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.
In this case it was stated that the material event is the inception of the adultery that is when the
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happen.
Godfrey vs. Godfrey & Wall

In this case the court held that a husband petitioner was guilty of connivance at his 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.
Once connivance is established the complainant will be barred from complaining of adultery
with any third party unless he can show there is no causal connection between connivance and
the adultery now complained of.
(b) Condonation
This is the forgiveness of a marital offence and reconciliation between the parties with full
knowledge of all the material circumstances.
“It is the reinstatement of a spouse who has committed a matrimonial offence in his / her
former matrimonial position in knowledge of all the materials facts of that offence”.
Under Section 10(3) of the Matrimonial Causes Act adultery shall not be deemed to have been
condoned unless and until conjugal cohabitation shall have resumed.
The elements of condonation are the fact of reinstatement, the intention to forgive and the
knowledge of the offence. See
Henderson vs. 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. However the court pointed out the decision
in Cramp vs. Cramp 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. 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. See
108
Crocker vs. Crocker

Where a soldier who was serving overseas during the war wrote to his wife offering to forgive her for
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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.
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 vs. Beard
and Bertram vs. Bertram
See the following two cases
Barbra Otunga-Moahamed vs. Ahmed Mohamed Ali

The court held the petitioner had condoned the alleged adultery because the she continued to live with
the respondent as her husband even after discovering his alleged adultery and dismissed that ground of
divorce..
Sam Musomba Kyuma vs. Mercy Njambi Musomba

The court held after the acts of alleged adultery the parties resumed cohabitation voluntarily and since
there is no allegation of any further act of adultery thereafter the adultery is deemed to be condoned. It
also held that both parties had unequivocally stated that the marriage is irretrievably broken down and
that means none of them has condoned the acts of cruelty.
(c) Collusion
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.
See
Churchward vs. 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 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.
2. Discretionary Bars
(a) Unreasonable Delay
Delay that is unexplained may be fatal to a petitioner’s relief and in Johnson vs. Johnson (1903)
109
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
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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.
Johnson vs. Johnson

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.
Binney vs. 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.
(b) Conducing Conduct

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 commits a marital offence may bar the petitioner from obtaining a divorce.
Lander vs. Lander (1890) and Dixon vs. 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: 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.
In Blunt vs. 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:
i. The position and interest of any children of the marriage;
ii. The question whether if the marriage is not dissolved there is a prospect of
reconciliation between husband and wife;
iii. The interest of the petitioner and in particular the interests that the petitioner
should be able to remarry and live respectably;
iv. The interests of the party with whom the petitioner has been guilty of
misconduct with special regard to the prospects of future marriage;
v. 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.
Under Rule 28 of the Matrimonial Causes Rules a full statement of the facts upon which the
petitioner relies for the exercise of the court’s discretion should also be lodged in court with the
petition.
Once the petitioner has proved his ground for divorce and none of the bars has been proved
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then the court should grant the divorce decree.

Under Section 15 of the Matrimonial Causes Act 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
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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.
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 why the decree should not be made absolute.
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.
Some Procedure
Mohamed Roshanali Jafferali Merali vs Naznin Akbar Padhani

The court allowed the petitioner to rely on affidavit evidence to prove his petition pursuant to rule 25(1)
(i) &(ii) matrimonioal causes rules. Further held that thoudg the marriage was solemnizes in United
Kingdom, the marriage may be dissolved by the court pursuant to section 4 MCA. The court held that
there was actual and constructive desertion on he part of petitioner and dissolved the marriage for
irretrievable broke down.
James Owen vs Margaret Owens

The court held that under Section 3 of the Matrimonial Causes Ordinance the jurisdiction of the
supreme court of Kenya is exercised in accordance with the law applied in matrimonial proceedings in
the high court of justice in England. Therefore there was no danger if the English court makes a decree
for the dissolution of the marriage while the proceedings on the appellant’s petition in the supreme
court of Kenya are still pending since if either court decreed the dissolution of the marriage the
proceedings in the other jurisdiction would be brought to an end on the ground that the marriage had
already been dissolved.
Rose Nyokabi vs. Raphael Charles Muturi

The court held that section3, 14, and 15 of the African Christian marriages and divorce act as read with
section 3 of the matrimonial causes act offend our constitutional provisions baring discrimination on
racial grounds and are unconstitutional. The thrust of the said sections is to confine or restrict Christian
who are Africans to subordinate courts initially while Christians of other races can access the high court
direct. The high Court head the matter not withstanding the provisions of the African Christian
Marriages and Divorce Act as read with section 3 of the Matrimonial Causes Act.
Shah vs Shah
The respondent entered appearance, filed answer to the petition and filed affidavit of his property and
income as required under rule 44 of the Matrimonial Causes Rules. The petitioner then amended the
petition in response to the answer to petition but the respondent did not amend his answer. The
petitioner then made an application seeking alimony and maintenance. The respondent sought an
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adjournment to file a replying affidavit to that application. Court held that the only affidavit that may be
filed under rules 44 & 48 of the matrimonial causes rules is the one to be filed in the application for
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FAMILY LAW-GPR 305
both parties during the proceedings. The intention of the legislature was to deny the respondent an
opportunity to file a replying affidavit. The civil procedure rules do not apply to matters which are
matrimonial except where the act itself so provides.
Peter Mburu Echaria v Priscilla Njeri Echaria

The court held that in domestic disputes it is wise to allow parties to exhaust their remedies on merit.
Court allowed for extension of time to file a notice of appeal and lodge an appeal.
Wanjiru vs Lowe
The court held that rule 3 (3) of the Matrimonial Causes Rules which provides for the making of an
application by way of chambers summons could only apply where rules 3 (2) (a-f) do not provide for a
way of commencing an application. That an application for alimony pending suit made where a claim for
alimony is made in the original petition need not be by notice and may be brought by chamber
summons. Further held that under Section 25(1) of the Matrimonial Causes Act is clear that alimony
pending suit could be granted before decree nisi is issued. And the omission to issue a notice requiring
an affidavit of means to be filed or the omission to issue a notice under form 5 of the appendix (notice
to appear to be contained in a notice of an application for ancillary relief where no appearance has been
entered in the petition) could not be put right without the applicant filling a fresh application.
Gulam Mohamed vs Hadayat Bibi

The court held that a suit to recover dowry is not a matrimonial cause or suit as defined by the
Mohammedan Marriage Ordinace, 1920 and the domicil of the parties is not an relevant issue.
Abdulllah Tairara & Another vs Hussein Bin Kasim

The court held that section 3 of the Mohammedan marriage, divorce and succession ordinance cap147
gives jurisdiction to the supreme court to hear and determine matrimonial causes only at the suit of
either party to the marriage.
John Hornsted vs. Mabel Iris Hornsted

The respondent applied for an order that her evidence to be taken in England under section77 of the
Indian code of civil procedure and for an order of security for her cost of and incidental to the taking
such evidence. Held that the application for security for cost in divorce proceedings should be made
under rule 25(3) and rule 67(1) of the Matrimonial Causes Rules 1956 and not under s.77 of the Indian
code of civil procedure Court stated that the practice in England is to order the husband to secure the
wife’s costs, in the absence of good reasons to the contrary. The main reason for refusing an order for
security would clearly be where it is shown that the wife has sufficient means of her own; where the
husband has been relieved of his liability for necessaries by the adultery of the wife; and the
circumstances of the case generally.
Kimani vs Gikanga
The court held that where African customary law is neither notorious nor documented it must be
established for the court’s guidance by the party intending to rely on it. It should be proved by evidence
or expert opinion. The purpose of assessors is to help the court in forming an opinion of the customary
law which is applicable to the case before it, and which the court is required to take judicial notice of.
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An Act to provide for the marriage of African Christians and for the dissolution of such
marriages.
[Section 3 (1) of the African Christian Marriage and Divorce Act] provides marriage under the
marriage Act are Africans professing the Christian religion the provisions of cap 51 Act relating
to dissolution of marriage shall apply to such marriage as if it were a marriage under the African
Christian Marriage and Divorce Act.
The provisions of the Marriage Act apply to all marriages celebrated under the African Christian
Marriage and Divorce Act except as otherwise provided in African Christian Marriage and
Divorce Act.
That the act apply only to the marriages of Africans one or both of whom profess the Christian
religion and to the dissolution of such marriages. The Act does not however prevent any African
marrying under the Marriage Act, but if one or both parties to a
Section 6 (1) of the Matrimonial Causes Act provides that no petition for divorce shall be
presented to the court unless three years have elapsed since the date of marriage.
There is however a proviso to the effect that court may grant leave for a divorce petition before
three years elapse on the ground that the case is one of exceptional hardship suffered by the
petitioner or for exceptional depravity on the part of the respondent.
Rehana Nizar Nanji vs.Manjit Singh Jhite

The court declined to grant leave to file a divorce petition before three years had elapsed and held that
the parties had not mutually and collectively made adequate attempts to resolve their marital
differences and they had not shown sufficient cause.
Biata Mganga vs Lennox Mganga Ziro

marriage. Further held that a petition for divorce based on such a marriage is incompetent
James Muya Odhiambo vs Emilly Akello Okundi& 2 Others

The court held that negligence is not one of the grounds for divorce under section 8 of the Matrimonial
Causes Act.
Rattansey vs Rattansey
The petitioner and respondent were married under the marriage ordinance. The respondent later
converted to Islam and on the same day they went through a ceremony of marriage under Muslim law.
It was held that the second marriage ceremony had no legal effect as the parties had already a status of
man and wife held that the court has inherent powers under the common law of England to make
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declaratory decrees in matrimonial causes where no other relief is sought. Also held that there is no
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principle of law that a marriage must be dissolved under the same system as that under which it was
contracted. Section 4 of the marriage, divorce and succession (non Christian Asiatic) ordinance,
Tanganyika does not prevent the dissolution by divorce in religious form of a marriage contracted under
the marriage ordinance.
Mwangi and Others vs West

The court held that a marriage solemnized under the African Christian Marriage And Divorce Act could
only be dissolved in accordance with the provisions of the marriage act namely by a decree of divorce
or nullity. The methods used to erase or wipe-out a Kikuyu customary law marriage do not apply to such
a marriage. Court stated that under Kikuyu customary law when a husband dies leaving a wife and
children and the wife returns to her parents taking the children with her and the whole of ruracio is
returned to the husband’s father and the ceremony of wiping out the marriage is performed the
customary marriage between the deceased and the widow is completely wiped out. In such a case the
children of the wiped out marriage are presumed to be illegitimate. A woman married under the African
Christian Marriage And Divorce Act is on the death of her husband not bound to cohabit with the
brother or nay other relative of her deceased husband.
Charles Kamau Ndungu v Rosemary Nyambura & Another

The court granted divorce on the grounds that the parties relationship broke down and it was not
possible for them to stay together due to breakdown of communication and suspicion and mistrust of
one another.
Priscilla Wanjiku Ndiang’ui vs. Peter Ndiang’ui Wangai

The court held that cruelty and desertion are separate matrimonial offence under section 8 of the
matrimonial causes act and each independently entitles the petitioner to dissolution sought. Divorce
was granted for failure to answer accusations leveled by a petitioner in the petition.
Kamal Tayantilal Shah vs. HinaKamai Shah

The parties in this case filed the divorce cause under Section 7 of the Matrimonial Causes Act. after they
had been separated for over 9 years following an order of judicial separation it was held that the only
person who can take shelter under section 7 of the Matrimonial Causes Act Cap 152 laws of Kenya is a
petitioner who had filed the separation and maintenance cause under Subordinate Courts (Separation
And Maintenance) Act Cap 153 laws of Kenya . After filing the divorce cause the petitioner shall not be
required to prove the allegations if they are similar to those alleged and proved in the separation cause
and the court shall regard the order in the separation cause as sufficient proof of such allegation. The
only requirement is that the petitioner has to give evidence.
David Kipyego Tarus vs Julia Jepkosgei Tarus

The court held that in not allowing granting a prayer for dissolution of a marriage the court had
notdeprived the petitioner his constitutional rights and freedom. The parties were married freely,
willingly and without coercion or otherwise. They are bound by the laws regulating the said marriage.
Court observed that while it may not possibly grant an order forcing the parties to cohabit or live with
the respondent, yet the courts will not dissolve a marriage without applying the law irrespective of the
hardships and realities of life that many a times marriages break down irretrievably yet parties may not
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be able to proof actual cruelty. Court opined that it the high time for parliament to revisit these
questions considering the social, cultural and economic changes that have taken place over the years
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consider that there are many situations that may require disengagement from a marriage consensually
and without necessarily first proving that the other spouse is a devil before the union is put asunder.
Mussa Ayoob vs. Maleksultan Ayoob

It was held that a valid marriage effected under the marriage act can only be dissolved in Kenya under
the law of Kenya by a judgment or decree passed under the matrimonial causes act and the question of
religion is wholly immaterial. It also stated that under the Mohammedan law a man is entitled to have as
many as four wives at the same time and a Mohammedan marriage is therefore not a monogamous
marriage. Further, a Mohammedan marriage is capable of being dissolved at the will of the husband by a
“talak” divorce without the intervention of any court and without the necessity of any grounds existing
to justify the divorce. Such divorce will be recognized by the law of Kenya in accordance with the
Mohammedan Marriage, Divorce And Succession Act. Court also held that religion dos not affect the
legal validity of marriage under the marriage act.
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2. DIVORCE UNDER CUSTOMARY LAW
Introduction
Termination of a customary law marriage by divorce is regulated by the unwritten laws of the
different communities of Kenya.
Earlier on there were significant differences in the local traditions of the different communities
on divorce.
Some, such as the Luo did not recognize divorce, others, like the Nandi did not allow it once the
wife had borne children, among the Kipsigis it was allowed only for a limited range of reasons,
while among the Kikuyu divorce was rare, it was quite common among the Kamba.
At present these differences remain, although divorce is now more widely accepted among all
Africans. Divorce under customary law can be either judicial or extra judicial.
Under customary law there are no rigid and inflexible rules and practice relating to termination
of marriage.
The ideology supporting marriage as a union more of two families rather than that of two
individuals is supported by institutional arrangements and dispute settlement machinery that
makes divorce rather rare.
The practice of polygamy is one of the several ways designed for the avoidance of divorce,
where the husband takes a second wife instead of sending away and divorcing the first one with
whom they have had a serious dispute.
The practice of levirate unions, in the event of the husband’s death, lends credence to the non-
dissolvability of marriages and also of the notion of ‘family marriages’ as opposed to marriage
between man and his wife which presupposes the existence of nuclear family structures.
Grounds for Divorce
The grounds for divorce under customary law are not formalized, and it is safe to describe them
as reasons for which may be regarded under appropriate circumstances as justifying the
dissolution of the marriage. Indeed under customary law, just as in Islamic law, no fault has to
be proved before a divorce is granted.
The reasons found to be of general acceptance include:
i. witchcraft by either spouse;
ii. willful desertion by either spouse, especially if the wife has gone to a lover;
iii. adultery by the wife; repeated trouble-making by the wife, especially in the village or among
co-wives;
iv. slothfulness or laziness by the wife;
v. refusal of sexual intercourse by the wife without good cause;
vi. impotence in the husband; barrenness in the wife, which is normally not a good reason for
divorce among most communities, but it is recognized as a solid ground by the Kikuyu;
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vii. unnatural sexual offences, such as incest and homosexuality;

viii. repeated drunkenness by the husband;
ix. excessive ill treatment of the wife by the husband;
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x. unreasonable failure by the husband to maintain the wife by providing her with adequate
land, home, clothes and so on; and habitual theft.
The above should not be treated as grounds for divorce in the strict sense, but they apply to
both judicial and non-judicial divorces. See the following case
Leonita Salume vs. Captan Nyongesa
It was claimed that the husband had failed to maintain the wife and the children.
Isaiya Bedi vs. Ether Munyasia

The claim was the wife’s cruelty and 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.
Okutoyi vs. Nyongesa

It was alleged that the husband was a habitual chicken thief; the wife stated that in addition to the
husband being cruel to her, every time he came home with chicken which had been unlawfully obtained.
Under customary law, polygamy does not give the wife the right to seek divorce from her
husband on the basis of his having married another wife.
Indeed, the wife cannot obtain a divorce on the ground that the husband has had an adulterous
relationship with one or more women unless that woman is married.
In fact in most communities sexual intercourse with a woman will not suffice unless the
husband’s conduct becomes habitual. See
Damaris Irene Ngare vs. Maurice B.A.Ogila

A woman married under Luo customary law sought divorce on several grounds, which included
adultery. She alleged that her husband had on several occasions brought other women to their
matrimonial home, and in the process denied her her conjugal rights. She gave names of the women
allegedly brought to the matrimonial home by the husband. The court denied her the divorce on the
ground that she had not proved her case. The women who allegedly had sexual relations with her
husband were found to have been unmarried, and under Luo customary law the woman could only
divorce her husband for habitual sex with married women. In the circumstances he could not have
committed adultery with unmarried women.
Extra Judicial Divorce
In nearly all communities divorce is entirely a matter for decision by the families and the parties
concerned and is extra-judicial.
In the meetings of the family elders an attempt would usually be made to look beyond the
particular complaint to discover whether the marriage had broken down irretrievably, the role
of the elders being to seek to bring reconciliation where possible.
Extra judicial divorce may be initiated by the husband or the wife or even by the wife’s family.
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The husband initiates it by chasing away his wife by telling her to return to her parents’ home.
He is also required to inform her parents that he intends to be separated or divorced from their
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The wife may also initiate divorce by voluntarily leaving her husband’s home and returning to
her parents while the wife’s family can also initiate divorce especially where the husband has
refused to pay the full bride price and they go and get their daughter.
See
Geofrey Kimeu Mkimithi vs. Matheka Nzioki and Another
It was stated that according to Kamba customary law divorce is signified by either the wife giving the
man she does not want to continue in marriage with a goat or the man himself going to fetch
mbuiyaulee goat from the home of the woman.
Under customary law, return of the marriage consideration is significant as it symbolizes the
validity of the divorce.
The return of the consideration will depend on whether there are any children of that marriage.
In most communities, if the husband retains custody of the children no refund of the marriage
consideration price is due.
Where the mother seeks to retain custody of the children, then consideration that will be
returned will depend on the number and gender of the children.
Where the wife initiates the divorce, the full marriage consideration becomes due. Among
some communities, where the husband initiates the divorce and the wife remarries then it will
be obligation of her new husband to refund the consideration.
Samwel Mwaura vs. James Muchiri
It was held that it is the head of the woman’s family who should be sued in a suit for refund of
dowry. The court held that though dowry is voluntarily given it was in respect of anticipation of a
marriage which did not materialize and the same is refundable
One must however prove the amount given out and the person who received it.
In the Matter of the Estate of Alfred Imujaro the court held that as dowry had not returned
there was no divorce.
In the event of a termination of a marriage or failure of the marriage, the gifts given to the
woman’s family must be returned.
Like in the case of termination betrothals, the explanation for this customary rule is failure of
the consideration for the marriage.
The parties’ expectations would not be met, and consequently they have to be returned to the
position they occupied before the marriage or they entered into the contract.
It is a case of being restored to the status quo ante by having the gifts returned. The gifts are
returnable where the husband or wife obtains divorce for any of the reasons allowed under
customary law.
The amount returnable depends on a number of factors, among them: the fact of the woman
having given birth to some children during the marriage, especially where the wife retains
custody of the children; the duration of the marriage; the prospects of remarriage of the
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woman; and where the woman has been devaluated through either disease, injury or
barrenness, the husband would be entitled to return of part of the gifts, but not a divorce.
Essentially, whether the gifts have to be returned in full or in part vary from community to
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The opinion of Western jurists is that judicial divorce that is that divorce should have its basis in
law.
In their opinion society’s interest is in the preservation of the family and when it is fragmented
by breakdown it is spouses and the children who suffer most, and therefore for the interest of
all it should be dissolved lawfully only when their interests are properly safeguarded.
On the other hand it has been argued that extra-judicial divorce does not mean instability in
marriage and family life.
Society’s interests are probably better served by the elaborate extra-judicial procedures; the
reality is that extra judicial divorce does not mean easy divorce. Under customary law emphasis
is on reconciliation and divorce is a last resort after all efforts at reconciliation have failed.
Furthermore marriage under customary law is more of an alliance of the two families than a
union of the two individuals.
As a result of this in cases of divorce the sanction of the families was considered a significant
factor, which made divorce difficult.
Judicial Divorce
Termination of a customary law marriage is usually sought from the courts in situations or
circumstances where a party has failed to comply with an extra judicial divorce, such as where
the husband refuses to accept return of the marriage consideration or where the wife refuses to
leave her matrimonial home.
There is a tendency though for the bringing of divorce cases before the courts even when some
measure of family agreement has been reached in order to have judicial sanction for
consequential decisions such as the return of marriage consideration, custody of children, and
the like.
Under Section 9 of the Magistrates Court Act the court is entitled to hear claims arising out of
marriage or divorce under customary law and the courts are required to determine the cases
before them in accordance with the customary law of the parties.
Normally the courts will insist on reconciliation procedures and it is only after proof that
reconciliation has failed that the courts will proceed to hear the divorce suit and subsequently
grant it if there is evidence to justify the termination of the marriage.
See Kavisyo Mukita vs. Benjamin Mavuti Kivuthi
Kavisyo Mukita vs. Benjamin Mavuti Kivuthi

The court stated that through the court a Kamba customary marriage can be validly dissolved. In this
case the appellant after 18 years of marriage at the respondent instructions returned to her people and
lived there for 33 years and showed no interest of return the court granted divorce though the marriage
was a Kamba customary marriage. It was also held that the procedure in Kamba customary divorce
would only be followed if the divorce sought is before the elders but when the divorce is before the
court the court only had to ensure that the claims is proved on a balance of probability.
The law does not recognize presumption of divorce out of a prolonged separation.
This position was stated in Geoffrey Kimeu Mkimithi vs. Matheka Nzioki and Another where
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Karuru vs. Njeri

It was held that according to Kikuyu custom on divorce the children go to the father unless the
father demands the return of the bride price in which case they go to the mother provided the bride
price is returned in full. Court held that this custom was neither repugnant to justice and morality
nor inconsistent with any written law and the court must therefore be guided by it in spite of the
possible effect on the children.
Kiplangat Korir vs. Dennis Kipngeno Mutai

It was held that a resident magistrate court can only hear customary law disputes as specified in
Section 2 of the Magistrates Court Act and cannot extend jurisdiction and hear matters which are
not specifically provided for in Section 2 of the Act such disputes including a customary burial
dispute shall be heard by the High Court. It further held that under Kipsigis customary law once a
man marries a woman, the woman is considered to be his wife until he divorces her or until death. It
will not matter that the woman would be separated from the man and conceives children by other
men. The children conceived out of wedlock would be considered to be the children of the
“husband”. The only caveat to such children is that a special ceremony called keeturum saandet
must be performed which is meant to reconcile a couple who had separated but were willing to be
reconciled.
Kamau vs Wanja and Another

It was held that the Kikuyu customary law custom of blotting out marriages or marriage to be and
has rules for the return of the marriage dowry payment of pregnancy compensation and the
provision of co-guardian s for minor children. This is not repugnant to justice and morality.
Paul Boyle vs Serene Philip

The petitioner sought divorce on grounds of irreconcilable differences and the court held that under
s. 9 of the MCA such ground is unknown to Kenyan law.
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3. DIVORCE UNDER ISLAMIC LAW

Introduction
The rules of divorce under Islamic law differ from both customary and statute law in various
essentials.
Dissolution of Islamic marriages is governed by Mohammedan law by virtue of section 3(1) of
the Mohammedan Marriage, Divorce and Succession Act.
This Act as well as the Mohammedan Marriage and Divorce Registration Act do not provide
grounds upon which a party married under Islamic could obtain divorce.
Section 6(1) of the Mohammedan Marriage, Divorce and Succession Act provides parties to a
Muslim marriage are entitled to relief by way of divorce which can be granted or obtained
according to Muslim law.
The High Court is vested with jurisdiction under section 3(3) of the Mohammedan Marriage,
Divorce and Succession Act to hear and give relief upon the principles of the Mohammedan law
applicable to the parties.
Forms of Divorce
Marriage may be dissolved upon the death of either spouse. It will also occur at the instance of
the husband without the intervention of the court.
It often happens by the mutual consent of husband and wife without the courts intervention. In
other circumstances it will be by grant of a decree of the court upon the petition of the husband
or wife.
There are of course variations regarding the details of these rules depending on the Islamic
school to which theties belong.
Under Islamic law, just as in customary law, no fault has to be proved before a divorce is
granted.
Extra Judicial Divorce
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:
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i. He may start by kind exhortations or reprimands where he denies her a few necessities.
ii. He may then withdraw from the matrimonial bed however this should be of a temporary
nature; and if this fails.
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iii. 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.
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.
Types of Extra-Judicial Divorce
a) Talak
In Islamic marriages the dominant form of divorce is the talak, which consists of triple
repudiation of the wife by the husband.
Talak which is dissolution of the marriage by the unilateral acts of the husband (Ayoob vs
Ayoob).
The husband is seen as having rights to divorce his wife at will.
For a talak the husband may unilaterally repudiate his wife without showing cause, repeating
the word talak three times.
In Mussa Ayoob vs. Maleksultan Ayoob it was held that a Mohammedan marriage is capable
of being dissolved at the will of the husband by a talak divorce without the intervention of any
court and without the necessity of any grounds existing to justify the divorce.
Such divorce will be recognized by the law of Kenya in accordance with the Mohammedan
Marriage, Divorce and Succession Act.
The divorce may be grounded on the wife’s adultery or any other reason, including the wife
having fallen out of favour with the husband.
This right is seen as being discriminatory to the extent that it is only accorded to the husband.
Divorce on the ground of polygamy is not available to the wife.
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; and
v. His intention to terminate the marriage must be clear.
On the part of the wife, She should be of age; 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 third talak.
The effect of the third 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.
Before the wife remarries she has to wait for the period of four months, called the iddat period,
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and she cannot remarry her ex-husband until she has been married by another man or divorced
or widowed.
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b) Khula
In the khula divorce the wife initiates the divorce by requesting the husband to repudiate her on
condition that she pays a fee for her freedom.
It may be described as divorce by mutual consent taking the form of a bargain where the
husband agrees to divorce his wife on her payment of a specified sum of money or on forgoing
her ownership rights over certain property.
It is akin to a contract where the wife buys her freedom from the marriage bond and the
husband agrees to release her in consideration of the agreed payment.
The khula is initiated by the wife who she is unhappy with the marriage, she then returns the
mahari 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.
The husband is apparently the sole judge of how much is to be paid to the wife and the courts
may not force him to accept a lower figure.
Since it is a binding contract between the parties, it is enforceable upon breach. See
Ali Omar Mote vs. Ali Siraj

It was held that divorce by khula is a divorce with the consent of and at the instance of the wife, in
which she gives or agrees to give a consideration to the husband for her release from the marriage tie.
The terms of the bargain are matters of arrangement between the husband and wife. The divorce is the
sole act of eh husband, although granted at the instance of the wife and purchased by her.
The khulanamah is a deed securing to the husband the stipulated consideration but it does not
constitute the divorce. See
Salum vs. Asumini

It was held that a khula divorce was obtainable at the initiative of the wife. It is accomplished at once by
means of appropriate words spoken or written by the parties or their respective agents, the wife
offering and the husband accepting compensation out of her property for the release of his marital
rights. Also held that the welfare of the child is paramount consideration and since the child’s paternal
grandfather had at all times manifested his interest in the child the custody should be restored to him.
Custody of one year old child was granted to the grandfather where the mother was living in adultery.
c) Mubara’a
The mubara’a divorce is 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.
It differs from the khula in that it is brought about by the mutual desire of both parties to end
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Under khula divorce the initiative springs from the wife who tries to secure release from a
husband who is otherwise unwilling. In both cases however there is mutual consent to
terminate the marriage.
Apostasy, which is where either spouse abandons the Islamic religion, is one of the grounds
upon which the mubara’a divorce may be granted.
d) Ila
The ila divorce 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.
e) Zihar
The zihar 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.
f) Lian
The lian divorce 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.
Judicial Divorce (Faskh)
The faskh divorce is judicial in form: it involves a petition by the either party, but usually the
wife, to the kadhi to dissolve the marriage.
Section 3 of the Mohamedan Marriage and Divorce Act and the Mohammedan Marriage and
Divorce Registration Act do not provide the grounds for divorce but refer to the principles of
Islamic law.
According to scholars the most common ground pertains to breach by either spouse of the
duties of the married state.
The grounds for judicial divorce include:
i. Desertion by the husband for a number of years;
ii. Failure of the husband to provide maintenance for a period (Assi vs. Yusuf);
iii. Imprisonment of the husband for a period of seven years;
iv. Failure of either spouse to perform marital obligations:
v. Where the husband is either insane, cruel, impotent, suffering from leprosy or a venereal
diseased or where he is captured by war enemies and in cases of extreme or severe poverty
or is guilty of adultery.
vi. Apostasy is also considered as a ground upon which divorce can be granted to either
spouse.
The khula divorce can in appropriate cases be granted by judicial decree.

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See
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Ali vs. Sharriff

It was held that a wife can ask for divorce from the husband due to his cruelty or desertion. The

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grounds for khula are

i. habitual ill treatment of the wife,
ii. non-fulfillment of the terms of contract, insanity, incurable in competency,
iii. quiting the conjugal domicile without making provisions for the wife,
iv. any other similar causes which in the opinion of the Kadhi justifies divorce.
It was also held that khul can be reached through consent or through the order of Kadhi on payment by
the wife to the husband a certain amount that does not exceed what was given to her as dower. After
the divorce it is lawful for them to remarry with mutual consent. In the instant case the court directed
that the wife do return to him what she took from him as dower in exchange for divorce (khul).
Registration
The Mohammedan Marriage and Divorce Registration Act require registration of all Muslim
divorces within seven days, at the office of the registrar of Islamic marriages.
Under Section 9 of the Mohamedan Marriage and Divorce Registration Act, after the divorce
has been pronounced by the court, both spouses are required to register the divorce within
seven days of the pronouncement.
However failure to register will not invalidate a valid divorce or vice versa.
The effect of this legislation is restricted by the saving section which preserves the validity of any
divorces not so registered.
In any event the legislation does not apply to all Muslims in Kenya but only to those to whom it
has been extended by Ministerial notice: currently it has been applied to all Muslims, except
those of the three Shiah Communities: the Khoja Shia Ith’nasheri, the Khoja Shia Ismailia
Council and the Bohra Community.
See the following 3 cases
Mussa Ayoob vs. Maleksultan Ayoob

It was held that a valid marriage effected under the marriage act can only be dissolved in Kenya under
the law of Kenya by a judgment or decree passed under the matrimonial causes act and the question of
religion is wholly immaterial. It also stated that under the Mohammedan law a man is entitled to have as
many as four wives at the same time and a Mohammedan marriage is therefore not a monogamous
marriage. Further, a Mohammedan marriage is capable of being dissolved at the will of the husband by a
talak divorce without the intervention of any court and without the necessity of any grounds existing to
justify the divorce. Such divorce will be recognized by the law of Kenya in accordance with the
Mohammedan Marriage, Divorce And Succession Act. Court also held that religion dos not affect the
legal validity of marriage under the marriage act.
Zainabu vs Mohammedi
It was held that shaffi law (sunni muslims of the shaffi sect ) do not recognize constructive desertion. A
court must enquire into the matrimonial offence alleged and if this is proved must dissolve the marriage
itself. The court should not compel the husband to pronounce talak to his wife. By deserting her
husband and refusing to return to him the wife was guilty of the Islamic offence of disobedience. She is
therefore nazisha. The husband may sue for restitution of conjugal rights and he may leave her where
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she has chosen to live but all the time she remains his wife and she cannot remarry. Being nazisha she is
not entitled to maintenance until she ceases to disobey her husband’s lawful order that she should
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Farhana d/o Zafarulla Khan and Another vs. Mohammed Shafiq Quresh
It was held that maintenance is payable to divorced women under Muslim law. It also held that under
Muslim law the marriage gifts a man gives to his prospective wife belong to her as well as the gifts
acquired by the wife before or after the marriage. Further held that a marriage is s special contract but
not an economic transaction and to claim reimbursement of the expenses incurred in the staging of a
marriage which eventually fails is to attach an economic element to the contract of marriage and is
contrary to public policy. To allow such a claim is tantamount to giving parents of spouses right of
monetary investment in the marriage of their children.
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4. DIVORCE UNDER HINDU LAW
Introduction
The Matrimonial Causes Act is extended to apply to Hindu marriages, and the grounds for
divorce are those specified in the Act with certain additional grounds: religious conversion,
renunciation of the world and entry into a religious order or the existence of a decree of judicial
separation for two years.
Grounds
Section 10 of the Hindu Marriage and Divorce Act sets out the grounds for divorce.
These are
i. Adultery;
ii. Cruelty;
iii. Desertion for a period of 3 years;
iv. Unsoundness of mind where the Respondent has been under medical care for a period of
five years,
v. Where husband is guilty of bestiality sodomy or rape,
vi. Where the Respondent has ceased to be a Hindu;
vii. 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.
viii. 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.
ix. Where the husband is married to another woman at the time of celebration of the marriage.
This can be a ground for nullity of a marriage and divorce as well.
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LECTURE 13: 9TH DECEMBER 2013- 5.30-7.30PM (LECTURE HALL B5)
TOPIC 9: RECOGNITION OF FOREIGN MARRIAGES

Introduction
A marriage will have a connection with a foreign law in a number of ways.
It may have been celebrated abroad but the issue of validity arises in a Kenyan court or one or
both parties to the marriage may be domiciled or resident in a foreign country.
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?
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 or
ii. Essential validity of the marriage.
Generally the law governing the formal validity of a marriage will be the law of the country
where the marriage was celebrated. This is known as the Lex Loci Celebrationis.
When it comes to essential validity that is, issues related to capacity, the law that governs is the
law of the parties domicile – lex domicili
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 fulfill the issues as to capacity
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.
1. Formal Validity
Here so long as the parties comply with the formal requirements of the law of the place of
celebration then that marriage will be recognized 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.
See these two cases
Simonin vs. MallacIn

This case 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.
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The converse also applies if it is formally invalid in the place where it was celebrated and
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formally valid under their domicile that marriage will be formally denied.

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Berthiaume vs. Dastous

In this case 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.
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 forth.
Also rules relating to the actual ceremony act itself such as time, place, nature of the ceremony,
requirements as to witnesses .See
Apt vs. 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 recognized by the English
Courts. The marriage took place in a country where they permitted marriages by proxy.
Ogden vs. 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.
Exceptions to the rule on Formal Validity
Exceptions that apply to the rule that formal validity is governed by the law of the place where
the marriage took place.
Under statute the Marriage Act under S. 5(2) and S.38A (which is an amendment) under these
two Sections, 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 they are saying that where Kenyans marry in Kenyan embassy the applicable rule will
be the Kenyan law.
Such marriages must be solemnized 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 marriage will be formally valid in Kenya even though it may not
be formally valid in the country where it was celebrated.
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 and
ii. Where the marriage occurs in a country under hostile occupation and at least one of the
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parties to that marriage is a member of the occupying forces.

In these two exceptions the law that will then apply is the common law as to formalities of
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That marriage will be valid so long as the formal requirements under common law are met.
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 vs. Preston.
See also
Taczanowska vs. Taczanowski
Two Polish nationals, domiciled in Poland were married in Italy in 1946 by a Polish Army Chaplain, an
episcopally 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 recognized 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 parties’ domicile was considered irrelevant, English common law was applied and the
validity of he marriage upheld.
2. Essential Validity
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?.
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
i. The law of the parties and
ii. 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 see
Pugh vs. 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 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
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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
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of the marriage was determinable by English law as being either the law of he husband’s domicil 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.
See also Republic vs. Brentwood Registrar of Marriages
Exceptions to the Rule of Essential Validity
There are three exceptions to this rule on essential validity.
(a) The Rule in Sottomayor vs. 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.
(b) The Law of Forum
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.
(c) The Foreign Law on Capacity being Repugnant
If the foreign domicile law that governs the issue of capacity is repugnant to public policy, it will
not be recognized.
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 penalizes a particular Section of the population.
See Chetti v. Chetti (1909) P 67
Intended Matrimonial Home Test

Under this test parties should have capacity to marry as determined by the law of their intended
matrimonial domicile.
This test has been criticized mainly because it tends to invalidate marriages such that if parties
131
don’t have capacity, still the marriage will be declared null and void while it has been supported
by social grounds.
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Cases which apply to the test include De Reneville v. De Reneville, Kenward v. Kenward,
Radwani v. Radwani and Cheni v. Cheni – prohibited degrees of relationships.

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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 bride and
the marriage was recognized in England because under their domicile law they could get
married. The Sinha Peerage Case and Mohammed v. Knott.
LECTURE 14: 9TH DECEMBER 2013- 5.30-7.30PM (LECTURE HALL B5)
TOPIC 10: NULLITY OF F MARRIAGES

Introduction
The Matrimonial Causes Act specifies certain grounds on which a marriage may be declared null
and void by the court.
These are
i. impotence,
ii. willful refusal to consummate the marriage,
iii. relationship within the prohibited degrees,
iv. insanity
v. sexually transmitted disease or
vi. pregnancy by some other person at the time of marriage and
vii. consent having been obtained by force or fraud.
By reason of being in the Matrimonial Causes Act means that these grounds only apply to
statutory marriages.
Difference between Nullity and Divorce

In effect when one goes to court to seek a marriage to be declared null and void one is
essentially saying that there was never a marriage in the first place but when you seek divorce
you acknowledge the marriage and seek to annul it.
Grounds for nullity are different from grounds for divorce.
Grounds of Nullity
Section 14 of Matrimonial Causes Act sets out the grounds upon which a party may apply for
nullification of a marriage.
See
JPP vs. PHR

The court declared the Hindu customary law marriage null and void on the ground that respondent
deliberately failed to disclose information of his mental illness which he suffered for 8 years which
information misled the petitioner who chose him and married him . Court held this was a marriage
based on false pretences and cannot be allowed to stand.
(a) Failure to consummate the marriage due to physical infirmities

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A marriage is said to be consummated as soon as the parties have sexual intercourse after
solemnization.
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There would be no consummation where the husband is impotent or where the parties are
physically incapable of consummating the marriage.
Consummation is the sexual intercourse between the parties after the marriage is solemnized.
See
D.E. vs. AG
It was stated that in order to amount to consummation the sexual intercourse must be ordinary and
complete sexual intercourse. In this case the wife had a physical deformity that made full penetration
impossible and it was held that this amounted to physical incapacity to 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.
Refer to S. V. S (1956) P 1
Cowen v. Cowen and Baxter v. Baxter

The use of contraceptives will not affect a marriage.
R vs. R
The fact that a husband or wife is sterile will not affect consummation of marriage.
Wambalaba vs Shamsulalam
The marriage was nullified for non consummation where the husband left the country soon after the
marriage and refused to spend even one night with the wife.
(b) Willful refusal to consummate marriage (application of doctrine of approbation)
This is where a party refused to consent to any sexual intercourse and that refusal must be
steadfast and determined.
See the following cases.
Kaur vs. Kaur
Willful refusal as was held in this case renders such marriage voidable and may be annulled by the court
upon application by the aggrieved party.
Wambalaba vs. Shamsulalam

The marriage was nullified for non consummation .the husband left the country soon after the marriage
and refused to spend one night with the petitioner.
Binita Niraj Dhanani vs. Niraj Chandulal

The respondent refused by declining evading and deliberately avoiding sexual intercourse with the
petitioner since solemnization of the marriage. A marriage is said to be consummated as soon as the
parties have sexual intercourse after solemnization.
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In this case the husband refused by declining evading and deliberately avoiding sexual intercourse with
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the wife since solemnization of the marriage and the marriage was nullified.

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Reneville vs. De Reneville

It was held a voidable marriage is one that will be regarded by every court as valid subsisting marriage
until a decree annulling it has been pronounced by a court of competent jurisdiction. It was also held
that the standard of proof in nullity proceedings is on a balance of probabilities.
See also Nariderpal Singh Chana vs. Kirandep Kaur Bhamra
S vs. S
In this case dealt with both physical incapacity as well as wilful refusal to consummate. In this case the
consummation of the marriage 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. 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.
Jodla vs. Jodla and Kaur vs. Singh.

When it comes to wilful refusal, it need not be contractual as it was stated in these two cases .The facts
in both cases are very similar and in both cases the husbands were supposed to organise on their
marriage ceremonies. 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 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.
Harthan vs. Harthan

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.
See also G vs. M
(c) Parties falling within the prohibited degrees of relationships
Where parties are related to one another within the prohibited degrees of affinity and
consanguinity.
(d) Marital status of the parties
Where either spouse is married to another person and that other marriage is still subsisting.
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See
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Selly Chelangat vs. Stephen Marindany and Biatamganga vs Lennox Mgangaziro

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The husband was married under customary law then contracted a civil marriage and court held that
they had no capacity to solemnize a monogamous marriage during the subsistence of a lawful
polygamous marriage. Further held that a petition for divorce based on such a marriage is incompetent
(e) Consent to marry obtained by fraud, duress or deceit
Where the consent of the parties was obtained through fraud or duress.
See
Buckland vs. Buckland
The petitioner was seeking nullity was accused of defiling a girl of 15 years and 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 annulment on the grounds of consent and the court granted
him the petition.
(f) Unsoundness of mind, drunkenness, insanity (mental status)
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.
(g) Mistake
Generally mistake does not marriage void. Mistake will only be a ground of nullity in two
circumstances only namely:-
(i) Mistake as to identity of the parties
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. It must be a mistake as to the
identity of the person and not his attributes.
See
C vs C
Where the man represented ti the woman that he was a well known feather weight pugilist. It was held
that her mistake was as to his attributes and not as to his identity and the marriage was valid.
135
Singh vs. Singh

The woman married the man on the mistaken belief that he was a famous boxer. The man shared a
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for divorce 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.
(ii) Mistake as to nature of marriage ceremony
Where a party is mistaken as to the nature of the ceremony and do not appreciate that he/she is
contracting a marriage there is no marrige.
See
Kelly vs. Kelly, Mehta vs. Mehta
Where 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 divorce it was held there was no marriage. A mistake as to the effects of the relationship produced
by the marriage is not sufficient. In case of sham marriages, if the intention is to contract a marriage
even though it is for a limited purpose it is valid.
(h) Venereal disease in communicable form
Where the respondent was at the time of the marriage suffering from venereal disease in a
communicable form
(i) Woman pregnant by another at the time of marriage
If at the time of contracting the marriage the woman is pregnant by some other person other
than her husband.
See
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.
4 Doctrine of Approbation
What this doctrine provides is that where parties have stayed together for a long time with this
deformity or where they have accepted the wilful refusal, then courts will not declare that
marriage null and void on the basis that the parties by staying so long together have assumed
that deformity and accepted it.
136
Normally this period ranges between 10 and 20 years.

See
Harthan vs. Harthan
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The husband sought a declaration of nullity on a claim of his own impotence and claimed that in their 20

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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.
See also G vs. M .
5 Effects of a Decree of Nullity

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.
However this position was changed by statutory law both in England and in Kenya and under
Section 14 of the Matrimonial Causes 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. Note that there is a
proviso under Section 14 that a marriage will still remain void if under the law it is void
irrespective of the fact that a decree of nullity has not been granted.
The fact that nobody has gone to court to declare the marriage null and void does not validate
such a marriage it still remains void.
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.
In those 3 grounds, there are certain conditions which must be proved by the petitioner.
The petitioner has to show that at the time of contracting the marriage, he/she was ignorant of
the facts alleged.
The proceedings must be instituted within one year of the marriage being contracted.
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.
5 Void Marriages
A marriage is void if either party is under 16 years of age, although this does not apply to
marriages contracted after 15th August 1961 when the amendment introducing the age limit
came into force.
Generally, the defects of form or ceremony which invalidate a statutory marriage are very
limited, essentially to: where parties knowingly and willfully acquiesce in its celebration under a
false name, without certificate or license, by a person who is not a registrar of marriages or a
recognized minister of a religious denomination or in place which is not a registrar’s office,
licensed place of public worship or a place authorized by the Minister’s licence.
See
K vs K
It was held that there was no willful refusal to consummate the marriage and the marriage was
137
consummated. That there is no authority that where there is only partial penetration there was no true
coitus –vera copula. Quoted Baxter v Baxter [1947] 2 ALL ER 886 where it was held that the use of
contraceptive did not prevent the consummation of the marriage.
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S vs S
The parties attempted intercourse but owing to a structural defect in the wife consummation was not
possible without an operation. The husband filed a petition on grounds of non consummation or with
refusal but failed on both grounds. The husband had suggested that she should consult a doctor but he
did nothing more positive about it. she then underwent a minor operation before the conclusion of the
case which successively removed any impediment to full consummation . It was held she was able and
willing then to consummate the marriage and it could not be said that consummation was practically
impossible.
Biatamganga vs Lennox Mgangaziro
marriage. Further held that a petition for divorce based on such a marriage is incompetent
6 Nullity Under Hindu law
Section11 (1) Hindu Marriage and Divorce Act provides the grounds on which a decree of nullity
of a Hindu marriage may be made.
a) in the case of a marriage solemnized after the commencement of this Act –

(i) that either party had a spouse living at the time of the marriage, and the marriage with
such spouse was then in force; or
(ii) that the parties are within the prohibited degrees of consanguinity, unless the custom
governing each of them permits of a marriage between them;
b) in the case of any marriage, whether solemnized before or after the commencement of this Act
i. that either party was permanently impotent, or incapable of consummating the marriage, at the
time of the marriage; or
ii. that either party was at the time of the marriage of unsound mind or subject to recurrent fits of
insanity or epilepsy; or
iii. that the consent of either party to the marriage or of the guardian in marriage was obtained by
force or fraud in any case in which the marriage might be annulled on this ground by the law of
England; or
iv. that the respondent was at the time of the marriage suffering from venereal disease in a
communicable form; or
v. that the respondent was at the time of the marriage pregnant by some person other than the
petitioner:
Provided that, in the cases specified in subparagraphs(iv) and (v) of paragraph (b) of this
subsection, the court shall not grant a decree unless it is satisfied –
i. that the petitioner was at the time of the marriage ignorant of the facts alleged;
ii. that proceedings were instituted, in the case of a marriage solemnized before the
commencement of this Act, within one year after such commencement, and, in the case of any
other marriage, within one year after the date of the marriage; and
iii. that marital intercourse with the consent of the petitioner has not taken place since the
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discovery by the petitioner of the existence of the grounds of decree.

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(2) (a) Where a decree of nullity is granted in respect of a voidable marriage, any child who would have
been the legitimate child of the parties to the marriage if it had been dissolved, instead of being

FAMILY LAW-GPR 305
annulled, on the date of the decree shall be deemed to be their legitimate child notwithstanding the
annulment.
(b) Paragraph (a) of this subsection shall not operate so as to confer on a child any right in the property
any person other than its parents in any case where, but for this section, such child would have been
incapable of acquiring or possessing such rights by reason of its illegitimacy.
(3) Nothing in this section shall be construed as validating any marriage which is by law void, but with
respect to which a decree of nullity has not been granted.
7 Some Cases
The Kenyan cases of
K vs. K
In 1970 the petitioner went through a form or ceremony of marriage with the respondent, at the District
Commissioner’s office, Nairobi. At the time, the respondent was married to one Grace WaiyakiKang’ara
in accordance with Kikuyu customary law. That marriage had never been dissolved or annulled but was
still subsisting. Counsel for the petitioner argued that under the Matrimonial Causes Act, under which
the petition had been brought, a monogamous marriage is the union of one man and one woman to the
exclusion of all others and as such if there existed another marriage contracted under customary law,
this one was null and void. The court held that only a monogamous marriage could be created by a
ceremony under the Marriage Act and as the husband was already married, the ceremony was valid and
created no marriage status. Therefore the respondent had committed adultery with the co-respondent.
And Decree nisi was granted.
Corbett vs. Corbett

In this particular case the parties went through a ceremony of marriage at the time of the marriage the
petitioner knew that the respondent had been registered at birth as being of the male sex and had
undergone a sex change operation and since that operation 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 a person of the male sex or alternatively for a decree of nullity on a
decree of non-consummation of marriage. It was held among other things that marriage is essentially a
relationship between a man and a woman the respondent having been a biological male from birth
rendered the so called marriage void. It was held that the Respondent was incapable of consummating
the marriage and that it was a nullity
Pugh vs. Pugh

A man of over 16 years married a girl aged 15 years purported to have gone through a marriage
ceremony, and it was held that that marriage was void and in his ruling the judge gave the reasons by
stating 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.
139
8 Nullity under Islamic Law

Page

FAMILY LAW-GPR 305
See Ockba vs Ockba
Ockba vs Ockba
A father sought an injunction restraining her daughter from marrying without his consent. She wished to
marry an Ethiopian who was a Christian. It was held that the father 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.
The Batil marriage is in fact a void marriage either by reason of some blood relationship
between the parties or some other incapacity to contract the marriages.
The children born out of this marriage are considered illegitimate and no mutual rights or
obligations arise as between the parties who are so married.
The Fasid marriage is an irregular marriage either because there were no witnesses to the
marriage or the woman was undergoing the period of iddat at the time of the marriage
ceremony or the marriage is with a person from a different religion or 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. Under Muslim Law marriages
arising out of cohabitation are not permitted, one has to comply with all the requirements of
marriage.
See also
Bashford vs Shaban
It was held that a Muslim marriage would be void where consent is obtained by fraud or force, unless
the same is subsequently ratified. The husband had told the wife that he was unmarried, but later the
wife found out that he was infact married to two other women. The court declared the marriage null
and void ab initio since that woman gave consent on a completely erroneous conception of a condition
precedent which arose from a deliberate misrepresentation on the part of the husband.
140
Page

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FAMILY LAW-GPR 305

TAUGHT BY: DR.WILLIAM MUSYOKA

FROM SEPTEMBER 16TH 2013

THESE NOTES HAVE BEEN COMPILED BY JOSEPH MCDONALD PHOTOCOPYING IS PROHIBITED

LECTURE 1: 16TH SEPTEMBER 2013- 5.30-7.30PM (LECTURE HALL B5)

TOPIC 1: DEFINITION AND HISTORY OF FAMILY LAW IN KENYA

LEGAL DEFINITION OF FAMILY

THESE NOTES HAVE BEEN COMPILED BY JOSEPH MCDONALD PHOTOCOPYING IS PROHIBITED

FAMILY LAW IN KENYA

HISTORY OF FAMILY LAW IN KENYA

in the country today.

These Four were

THESE NOTES HAVE BEEN COMPILED BY JOSEPH MCDONALD PHOTOCOPYING IS PROHIBITED

i. African customary law, applying to Africans

THESE NOTES HAVE BEEN COMPILED BY JOSEPH MCDONALD PHOTOCOPYING IS PROHIBITED

Marriage before licensed minister or registrar

(3) If the parties answer in the affirmative he shall proceed thus-

(4) Each of the parties shall then say to the other-

THESE NOTES HAVE BEEN COMPILED BY JOSEPH MCDONALD PHOTOCOPYING IS PROHIBITED

so long as both of us shall live."

b) Law Applying to Africans

(i) African customary law

our Judicature Act insofar as application of customary law is concerned.

THESE NOTES HAVE BEEN COMPILED BY JOSEPH MCDONALD PHOTOCOPYING IS PROHIBITED

(ii) Statutory law

See Samuel Uledi vs. Lydia Habibu

THESE NOTES HAVE BEEN COMPILED BY JOSEPH MCDONALD PHOTOCOPYING IS PROHIBITED

Samuel Uledi vs. Lydia Habibu

c) Law Applying to Muslims

d) Law Applying to Hindus

difficulties faced by Hindus.

THESE NOTES HAVE BEEN COMPILED BY JOSEPH MCDONALD PHOTOCOPYING IS PROHIBITED

Ceremonies for Hindu marriages

e) Law Applying to Europeans

of marriage and for the settlers to contract marriage.

THESE NOTES HAVE BEEN COMPILED BY JOSEPH MCDONALD PHOTOCOPYING IS PROHIBITED

f) The Constitutional Basis for Application of Different Law Systems

45 (4) Parliament shall enact legislation that recognizes—

THESE NOTES HAVE BEEN COMPILED BY JOSEPH MCDONALD PHOTOCOPYING IS PROHIBITED

g) Attempts to Unify the Systems

h) Applicability of English Law and Common Law Principles

i) Islamic Family Law

THESE NOTES HAVE BEEN COMPILED BY JOSEPH MCDONALD PHOTOCOPYING IS PROHIBITED

LECTURE 2: 23RD SEPTEMBER 2013- 5.30-7.30PM (LECTURE HALL B5)

TOPIC 2: MARRIAGE SYTEMS IN KENYA

THESE NOTES HAVE BEEN COMPILED BY JOSEPH MCDONALD PHOTOCOPYING IS PROHIBITED

a) Marriage Systems in Kenya

The Kenyan legal system is characterized by a multiplicity of marriage laws.

These distinctions also militate against national integration.

THESE NOTES HAVE BEEN COMPILED BY JOSEPH MCDONALD PHOTOCOPYING IS PROHIBITED

marriage arrangement in place was influenced by this philosophy.

THESE NOTES HAVE BEEN COMPILED BY JOSEPH MCDONALD PHOTOCOPYING IS PROHIBITED

Mwagiru vs. Mwangi

Case vs. Ruguru

William Muli vs. Francis Kithuka

THESE NOTES HAVE BEEN COMPILED BY JOSEPH MCDONALD PHOTOCOPYING IS PROHIBITED

THESE NOTES HAVE BEEN COMPILED BY JOSEPH MCDONALD PHOTOCOPYING IS PROHIBITED

Matrimonial Causes Act Cap 152

that marriage is for life has its origin in Christianity.

THESE NOTES HAVE BEEN COMPILED BY JOSEPH MCDONALD PHOTOCOPYING IS PROHIBITED

Nachimson vs. Nachimson

D.E. vs. A.G

Cowen vs. Cowen