Kenya Family Law: Overview of Marriage, Divorce and Children

An overview of Kenya Family law
Family law in Kenya concerns the body of Kenyan law dealing with family relationship, marriage, and
divorce.It is an area of the law that deals with family-related matters and domestic relations, including:
 marriage, civil unions, and domestic partnerships;
 adoption and surrogacy
 child abuse and child abduction
 the termination of relationships and ancillary matters, including divorce, annulment, property
settlements, alimony, child custody and visitation, child support and alimony awards.
 juvenile adjudication
 paternity testing and paternity fraud
Marriage
There are various types of marriages under the Kenya family law.This are:
 Christian marriage
Kenya family law: African christian marriage
This is marriage by Africans who profess the Christian Faith. The preamble of the African Christian
Marriage and Divorce Act provides that the Act is to provide for the marriage of African Christians and
for the dissolution of such marriages.
The Act provides at Section 3(1) that it applies only to the marriages of Africans when one or both
parties profess the Christian Religion.
Section 4 of the Act provides that the provisions of the Marriage Act shall apply to all marriages
celebrated under the African Christian Marriage and Divorce Act save where the said Act provides
otherwise.
The African Christian Marriage and Divorce Act provides specifically for the following:
Section 6 provides that Marriages are to be performed only by licensed ministers. The Office of the
Registrar of Marriages licenses church ministers to perform marriage ceremonies and issue marriage
certificates. Any duly registered church can apply for the licensing of its minister(s). This has the effect of
transferring some of the roles of the Registrar upon the church ministers.
Section 7 provides that Sections 8 to 18 of the Marriage Act which deal with inter alia, the issue of
notice shall not apply; however adequate notice of the intended marriage must be given. Instead of
giving notice at the Registrar’s Office, notice of the intended marriage is given in the church.
The Act also provides specifically for Consents (Section 8) and also the Act provides that Ministers may
be appointed Registrars of Marriages (Section 11).
 Customary Law
There are different forms of marriages that exist under Kenya Customary Law
(i) A monogamous marriage which is a marriage between one man and one woman;
(ii) Polygamy – whereby a man can celebrate marriage with many women at different times.
(iii) Leviratic Marriages – these arise where the husband predeceases the wife and a relative or brother
of the deceased husband assumes the role of the deceased. Any children born out of this union are
regarded as children of the deceased. This is common among the Meru Kamba Kikuyu Kuria Kisii and
Nandi tribes.
(iv) Sororate Unions – where the wife dies before the husband. Her family may offer her younger sister
as replacement and the younger sister assumes the role of the deceased wife. This may also arise where
the family is unable to return the bride price and offer their daughter as a substitute. Sorarate unions
also take place where a wife is not able to have children and she may invite her sister to come and get
married by the husband for the purpose of getting children this is common among the Luo.
(v) Widow Inheritance: - this is where the husband predeceases the wife and the wife is inherited by one
of the husband’s brothers and for all purposes becomes his wife. It is different from the Leviratic in the
sense that any children born out of that union are regarded as children of the brother and not children
of the deceased. Luo, Luhya Kalenjin tribes and the Masai.
(vi) Woman to Woman marriages – these arise where a woman is barren and she then marries another
woman for the sole purpose of having children and those children become the children of the barren
woman who is the husband in the relation. This marriage can take place whether the husband of the
barren woman is alive or dead. If the husband is alive the other woman is allowed to have sexual
relations with the husband for the purpose of having children. Any children out of this relationship will
be regarded as the children of the barren woman. Where the husband is dead she must select a man
from the husband’s family or leave the decision to the woman to select whom she wants to have
children with. This is common among the Kisii, Taita and Kuria tribes.
(vii) Forcible Marriages – These arise in a family where there are only daughters and the last daughter is
not entitled to get married. She remains at home to beget children especially male children with a man
of her choice and these children belong to her father’s family. Nandis and Kipsigis practice this.
(viii) Child Marriages – this is where children are betrothed to each other when they are still young and
dowry is paid when they are still young and on reaching the age of maturity the bride is then taken to
her husband’s home. This was normally done where prominent families wanted to see their friendship
or during times of famine. It was common among the Kisii, Kuria, the Kalenjin tribes the Pokot and the
Teso.
Can some of these forms be practised in the light of the Judicature Act which is to the effect that
customary law will apply insofar as it is not repugnant to justice and morality like child marriages, widow
inheritance can be contested as well as the Leveratic unions.
During the colonial times Leviratic marriage arose during the colonial times
Ocharo d/o Oigo v. Ombego Mogoi - is the first case in relation to custom marriages
In this case the Applicant’s husband with whom she had one child died in 1953 and upon his death the
Applicant was inherited against her will by the respondent who was a brother of her deceased husband.
The union was an unhappy one and the applicant then sought a divorce. The Applicant’s father
consented to the divorce and also to her marriage with another man whom she claimed was the father
of her second child. The father was also willing to repay the bride price he had received from the
deceased husband to the Respondent.
It was held that it was repugnant to natural justice to refuse a divorce to a woman who had been
inherited against her will. Custody of the child of her first marriage was given to the Respondent but
with regard to the second child the custody was given to the Applicant.
CONDITIONS THAT APPLY WHEN CONTRACTING A CUSTOMARY LAW MARRIAGE.
1. Capacity:
Insofar as the age of the parties is concerned, the parties need not be of a specific age. Under Kenya
Customary law what matters is not the age but whether the parties have gone through an initiation
ceremony. These initiation ceremonies differ among the communities, for some communities initiation
ceremonies is circumcision and other communities have different initiation ceremonies. The age will
depend upon the age when the initiation ceremony takes place ranging from 10 to 16 or 17 years.
Insofar as the marital state of marriage is concerned, for a man he may be single or married since
customary law allows for polygamy. However women are required to be single and for most African
communities, single here means unmarried, if you have been married widowed or divorced you are not
considered as single, under customary law marriage is coincided with the marriage of the woman so that
once you are married you are considered forever married whether you are divorced or widowed.
Insofar as consent is concerned under customary law consent is required both from the spouses and
their families so that the families’ consent is essential in a customary law marriage and there are stages
and ways in which this consent is given by the family. However the parties must also consent to the
marriage and this was stated in
Mwagiru v. Mumbi, Omondi v. Chum Nyafula
In Mwagiru the Plaintiff sought a declaration that there was a valid subsisting marriage between himself
and the defendant under Kikuyu Customary Law. The Defendant alleged that no such marriage existed
because she had not given her consent and had not even been present at the essential ceremony. She
admitted that she had lived with the Plaintiff for a short time but claimed that she had been forced into
doing so by her father. And she also claimed that she had gone through a civil marriage ceremony with
another man after she escaped from the Plaintiff and that she was in fact married to this man and not to
the Plaintiff.
It was held by the Court that the signifying of consent by the bride is necessary at two ceremonies,
which are vital in Kikuyu customary marriages and on the evidence, the Defendant was not present and
consenting at any of these ceremonies and the Plaintiff had therefore failed to prove his case.
Finally 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 and 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 father’s
wife in a polygamous household while in other communities this is a taboo. So the prohibited degrees
vary from community to community.
FORMALITIES IN A CUSTOMARY LAW MARRIAGE
1. Under Kenya law the parties have to undergo a betrothal ceremony. And the nature of the ceremony
depends on the customs of the parties, for some communities it is a single event for others it is done in
stages. For some it is a simple ceremony for others it is a very elaborate affair. Essentially during the
betrothal, the intention to get married is expressed and an agreement to that marriage is secured.
During the betrothal there may also be exchange of gifts but this is distinguished from dowry. It is just
an exchange of gifts.
2. You have the payment of dowry after the betrothal, for a customary law to be valid dowry must be
paid and the amount will differ among the communities. For some it is a standard rate for others it is
the prevailing commercial rate. For example among the Taveta they have a fixed dowry of one cow,
three female goats, two bulls and a home for the bride’s father. The Kisii it depends on how educated
the woman is and this determines the rate you pay. It is also dependant on the families involved where
you find that if you marry from prominent families the likelihood of paying a higher bride-price exists.
Amulan Ogwang v. Edward Ojok
Deals with bride price the ruling was that under Customary Law there is no marriage until full bride price
is paid and in this case the father was entitled to pregnancy compensation because the man had made
his daughter pregnant while he had not paid the full bride price.
The institution of bride price has been criticised and cases are also recognised that it may be subject to
abuse however initially bride price was paid as a token of mutual appreciation for the bride. It was a
way of thanking the parents of the girl for not only bringing up the girl but also for allowing the boy’s
family to take her away and it was also compensation in the sense that they were being compensated
for the progeny that would go to the boys family with the daughter. Children are closely tied with the
bride price and the return of bride price is determined by who will have custody of the children.
Momanyi Nyaberi v. Onwonga Nyaboga, Onchoke vs. Kerebi
These cases deal with the issue of dowry and the courts did recognise that this institution can be
abused.
In Momanyi Nyaberi the Applicant applied for a declaration that he was entitled to a woman and the
children which he had with her. The woman had been married under Kisii Customary law to the
Respondent but could not get any children with him. And under Kisii Customary Law any children which
are gotten by a woman with a man other than her husband belong to the husband and the husband
refused to divorce the wife insisting that she must stay with him and that the children are his.
It was held that the practice whereby a husband refuses to divorce his wife on the grounds that bride
price had not been repaid to him so as to claim the children that she may have was an abuse of
customary law and repugnant to natural justice.
In Onchoke Kerebi similar facts . in this case 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. Infact 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.
The final formality after payment of dowry is the celebration of the marriage itself and under Customary
Law this can be in 3 ways
1. The marriage can be celebrated through a formal ceremony according to the recognised practices and
customs of the community;
2. Through cohabitation so that once the parties start cohabiting the marriage is deemed to have been
celebrated
3. by way of elopement or capture.
WHAT MATRIMONIAL RIGHTS AND DUTIES ARISE UNDER KENYA CUSTOMARY LAW
Normally under Kenya law 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.
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 and can claim compensation from a
man who commits adultery with his wife. The person who pays the compensation differs from
community to community, it could be the adulterer or the father of the woman who commits the
adultery.
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 has the duty to maintain his family and to ensure that they have adequate food and
clothing
Muli v. Githuka
The husband reserves the right to chastise his wife where she has wronged him however excessive
beating is not allowed in customary law. What is unjustified excessive beating? Can any beating ever be
justified?
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.
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.
 Islamic Marriage
There are 3 aspects to a marriage under Muslim Law
1. Legal Aspect;
2. Social Aspect;
3. Religious Aspect.
Legally or under Kenya laws, a Muslim marriage is a contract which provides for certain requirements as
regards consent and also provides for provisions for its breach. One can enforce a Muslim marriage
judicially and it provides for specific terms.
The Social aspect of Muslim marriages is that they normally provide for higher status to women in
society and there are also restrictions placed in Muslim marriages on polygamy in that word polygamy is
allowed though limited to a certain extent.
Insofar as the religious aspect is concerned, marriage in Muslim law is considered to be a sacred
covenant and it is said that the Prophet Mohammed encouraged it.
There are 3 forms of marriages under Muslim Law and the classification is based on their legality.
1. SAHIH MARRIAGE (VALID). This is basically a marriage which has conformed with all the laid down
requirements.
2. BATIL MARRIAGE (VOID).This is in fact a void marriage either by reason of some blood relationship
between the parties or some other incapacity to contract the marriages. There are 2 consequences of
this marriage as in children born out of this marriage are considered illegitimate and no mutual rights or
obligations arise as between the parties who are married.
3. FASID (IRREGULAR). This is where either:
1. No witnesses to that marriage.
2. Woman was undergoing the period of Iddat.
3. Marriage is with a person from a different religion.
4. A man purports to marry a fifth wife.
The effect of an irregular marriage is that as between the parties it does not confer any rights; however
children born out of this union are considered legitimate.
Under Muslim Law marriages arising out of cohabitation are not permitted. One has to comply with all
the requirements of marriage.
CONDITIONS RELATING TO CAPACITY UNDER KENYA LAW
1. Parties must be biologically a man and a woman;
2. The parties must have reached the age of puberty;
3. Insofar as marital status is concerned, on the part of the man he can be single or married so long as
he marries only four wives and even so a man may not marry two wives at the same time and can only
marry one wife at a time and if he marries two wives at the same time, the marriage is considered as
being irregular. In the case of the woman, she has to be single and single includes widowed or
divorced. Where she has been widowed or divorced, she has to wait for a period of about 4 months
before she can contract another marriage. This waiting period is what is known as the ‘Iddat’ period and
its purpose is to determine whether or not she is expectant before she can contract another marriage.
4. Parties should not be within prohibited degrees of consanguinity and affinity. These are not provided
for under the Kenya Law and the applicable law is the Mohammedan Law. The 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. Prohibition is not only on grounds of consanguinity but also
of affinity.
Mulla: Principles of Mohamedan Law
5. Consent of the parties is very important and in some instances consent of legal guardians may also be
required. Refer to the case of
Ockba v. Ockba (1957) E.A 675
In this particular case the Plaintiff was the father of the Defendant and he sought a declaration that he
was entitled to her guardianship and custody until she was married. He also sought an injunction to
restrain her from marrying without his consent. The Defendant wished to marry an Ethiopian who was a
Christian. It was held that the Plaintiff was entitled to the injunction restraining her from marrying
without his consent and that the proposed marriage would not only be invalid for lack of consent of the
father but also for the reason of the religion of the proposed bridegroom because a Muslim woman
cannot validly marry a non-Muslim man.
Mohammed v. Salim 6 KL.R 91
A woman should marry a man within her station in life or within the same social status and this is
because under Muslim law the husband is required to maintain his wife according to the standards she
is used to.
Bibi v. Bibi 8 E.A.L.R. 200
In this particular case the petitioner was seeking to have her niece’s marriage on grounds that she had
married a man of lower status and bad character without the consent of her guardian. The court
granted her those prayers.
There are requirements as to the parties’ religion. Under some Muslim sects a Muslim man may marry a
non-muslim woman as long as the woman belongs to a religion which has a divine or holy book. In some
other sects marriages between Muslims and none Muslims is not permitted at all however among all
Muslim sects a Muslim woman cannot get married to a non-Muslim man.
FORMALITIES TO CONTRACT A MUSLIM MARRIAGE
1. An offer and acceptance must be entered into by the parties or their guardians. The following
procedures should be met:
(a) A declaration or offer firstly made by one party and the other party must accept;
(b) The words in the declaration or offer must show a clear intention to contract a marriage;
(c) This declaration and acceptance should be made in the presence of sufficient witnesses;
(d) The declaration and acceptance should be made in one meeting or in the same meeting.
2. The man is required to pay some form of compensation known as ‘Mahir’. This is payable to the wife
and becomes part and parcel of her Estate. Unlike dowry in African customary law which is payable to
the family Mahir is paid to the wife herself and can be paid either before parties enter into conjugal
cohabitation, during the course of the marriage or even after the dissolution of the marriage. The
amount payable is not fixed however it will depend on the different Muslim sects and it is normally fixed
according to the social status of the wife’s family.
3. Registration: Under Section 9 of Mohamedan Marrriage and Divorce Registration Act it is required
that once a Muslim marriage has been contracted, it should be registered within 7 days and this should
be done 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 will not validate it. Public Trustee v. Terro Vol. K.L.R 129
EFFECTS OF AN ISLAMIC MARRIAGE – RIGHTS & DUTIES WHICH ARE BESTOWED
1. Wife is entitled to a dowry and she may choose to recover it if it is not paid in full.
2. The husband is under a legal obligation to maintain his wife to the standards that she is used
to. Refer to Saliha Binti Baraka v. Tiabit Bin Salim 2 E.A.L.R. 131. Saliha case deals with
recovery of dowry and the other one as to maintenance.
3. Each spouse has a right to the others consortium and to enforce performance of the other
spouses marital duties.
4. The husband has the right to restrain the wife’s activities and to exercise marital authority over
her and the children.
5. Where the man has married more than one wife Muslim Law obligates him to treat each wife
with kindness and equality.
 Hindu marriage
These are governed by the Hindu Marriage and Divorce Act and the first thing about Hindu Marriages is
that they are strictly monogamous. 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 and this is provided in Section 27 (2) of the Hindu
Marriage and Divorce Act which also provides that Hindu Marriages have got the same definition as the
definition within the Matrimonial Causes Act which means that they must be strictly Monogamous
Marriages. The Section to look at is Section 171 of the Penal Code on Marriages that are contracted
under the Act and that is the Section relating to the offence of Bigamy.
Section 5 of the Act provides that Hindu marriages shall be solemnised according to the customary rules
and ceremonies of the party and that Section thereby imports Hindu Customary Law into the
celebration of Hindu Marriages. There are two forms of marriages under Hindu Customary Law
1. Brahma Marriage: No marriage consideration is paid by the bride’s father.
2. Asura Marriage consideration is paid by the bride’s father
In both marriages dowry is paid by the bride’s family.
CONDITIONS WHEN CONTRACTING A HINDU MARRIAGE UNDER KENYA LAWS
Insofar as capacity is concerned, it is provided for under Section 3 and 4 of the Hindu Marriage and
Divorce Act which provides that
1. Firstly neither party should be married to another person so both parties must be single and
2. Secondly the parties should be of sound mind at the time of contracting the marriage and
3. Thirdly the man must have attained the age of 18 years and the woman should be at least 16 years of
age. Where the woman is aged between 16 and 18, consent of her legal guardian is required.
4. Fourthly the parties should not be within the forbidden degrees of consanguinity and affinity. Section
3(2) of the Hindu Marriage and Divorce Act lists the persons who are within prohibited degrees of
consanguinity.
5. Fifthly consent where required must be given and again Section 4 of the Act subsection lists down the
guardians who may give consent in order of priority where it is required.
FORMALITIES UNDER KENYA LAW
The Act provides for two ceremonies which may be performed when a Hindu marriage is being
celebrated. Section 5(2), (3)
1. The Saptapadi ceremony: Under this ceremony the bride and the bridegroom go round a sacred fire
seven times and on the seventh round the marriage is deemed to have been celebrated.
2. The Anand Karaj ceremony: Here parties go round their holy book known as the Granth Sahib four
times and on the fourth round the marriage is deemed to be complete and binding.
The Act also provides for registration of Hindu Marriages and the issuance of a marriage certificate.
However it is also provided that non-registration will not invalidate a marriage neither will registration
validate an invalid marriage. This is provided for under Section 6 of the Act.
MATRIMONIAL RIGHTS AND DUTIES OF HINDU MARRIAGES UNDER KENYA LAW
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. The wife under Kenya law has a right to maintenance in Section
7(2) of Hindu Marriage and Divorce Act applies the Matrimonial Causes Act to marriages that are
contracted under the Hindu Act. So by applying the Matrimonial Causes Act means that the
maintenance conditions under this Act will also apply to Hindu Marriages.
Under Hindu Customary Law the wife has a duty to cohabit with her husband and to submit herself to
his authority. So in many respect Hindu Marriages are similar to marriages under statutory law.
 Civil marriage and the recent
Civil marriage
Formalities to be followed under Statutory Law
A civil marriage under Kenya law is one which is performed by a government official and not by a
religious organization. There is a requirement for notice which runs for 21 days. Section 8 of the Kenya
Marriage Act provides that where couples get married in church under Cap 150, then Notice is given
both in church and in the Office of the Registrar of Marriages in the prescribed form.
Upon receipt of such Notice, the Registrar will enter it into a Public Marriage Notice Book which is open
for viewing during working hours. This is provided for under Section 10(1) of the Marriage Act.
The Registrar also publishes the said Notice by affixing a copy of it outside his office for a maximum
period of 3 months or until the parties are issued with a Marriage Certificate. This is provided for under
Section 10(2) of the Marriage Act.
Before the 21 days have lapsed after giving notice, the parties must swear an affidavit and affix it to
the notice providing the following details:
that at least one party has been a resident within the area/district for at least 15 days
that the parties have attained the age of 21 years or if between 16 – 21 years, that the parties have
obtained the consent of the parents/guardians, which consent must be attached to the affidavit
that the parties must aver that there are no impediments of kindred or affinity or any lawful hindrance
to the marriage
that the parties are not married to any other person under any law at the time of publishing the notice.
If the Registrar is satisfied and no caveat is issued against the notice, he may issue a Certificate of
Marriage, whereby marriage must take place within 3 months of notice. Section 12 of the Marriage Act
provides that if the marriage does not take place within 3 months, such notice is void – not valid or legal.
If any party is dissatisfied with the Notice, he/she may enter the word “Forbidden” against the notice,
stating his/her name, address and reasons thereof. The person then appears in court to show cause why
the marriage should not take place. The decision of the court is final. This is provided for under Section
16.
For persons getting married in church, after the notice period of 21 days, a Registrar’s Certificate is
issued by the Office of the Registrar of Marriages and taken to the Church Minister who shall officiate
the ceremony. Certain fees are charged. Information on fees may be obtained at the Registrar’s Office.
A Special Licence may be issued if the couple cannot give the required three weeks’ notice. However this
is not a right and can be denied.
Section 24 provides that if a person licensed to celebrate a marriage knows that there is a problem, the
said person is obligated not to celebrate the marriage.
Section 25 provides that a marriage should be celebrated in a licensed place; that is a hall or church
office. Where the ceremony shall take place in a place other than a church or Registrar’s Office, for
example, in a garden, hotel etc then a special license is also required to license the venue for a wedding
even if Notice is properly given.
 Come we stay marriage
Marriages are prohibited where an individual does not have the capacity or where there is a direct
familial relationship such as parent/child or brother/sister relationship. A valid marriage must be
properly solemnize.
Are come we stay marital relations advisable? As the phrase suggests, come we stay unions usually arise
where a man and a woman commence living together as husband and wife and even have children
without formalizing of their union. “Formalizing” in this context refers to the carrying out or the taking
of any step by the parties towards carrying out a marriage whether customary or otherwise.
Come we stay unions have a long history in our society and the world over. Despite the fact that these
unions have faced religious condemnation, they appear to be now very prevalent and more so, among
young boys and girls. The state of affairs is even emerging to be “the acceptable” norm. Majority of the
young Kenyans are now “married” in that manner and the situation can no longer be ignored or
assumed. Further, people who may not have means to carry out traditional or civil marriages have also
taken advantage of this state of affairs to “get married”.
Come we stay unions which have been widely described as a temporary state of affairs pending
marriage are actually considered by the parties to the unions and the society in general as “marriage”
pending the carrying out of the marriage rites/ceremony. It is therefore not shocking to find that these
rites are sometimes carried out even after the death of the couple or one party of the union, if only to
establish that there was in fact a marriage. Others drag on and formalization of the marriage is only
carried out to pave way for children of the couple to get an official marriage.
In many Kenyan traditions, a couple that has not officiated its marriage cannot negotiate, receive or pay
dowry for marriage of their children. Many are the situations when children’s weddings have been
postponed to allow the parents to first officiate their marriage. This is a situation that parents should
avoid by engaging in formal marriages on the outset or formalizing their come we stays before it is too
late.
No statutory provision recognizes come we stay unions in Kenya.

At this juncture, it is important to note that a marriage may be recognized under a presumption of law.
A man and a woman may cohabit and hold themselves as a husband and wife. This scenario can raise
the presumption that they are legally married. The conduct of the parties shows that they are married
and the burden of proving that there is no marriage lies on the person alleging the same.
It is therefore necessary to consider what encompasses the presumption of marriage. A little history will
go a long way into shedding some light on this issue of the presumption of marriage.
In Kenya, the general position of the law is that Kenya is governed by various regimes of Law as set out
in The Judicature Act – Cap 8 – Laws of Kenya which sets out the Jurisdiction of the High Court, the
Court of Appeal and all Subordinate Courts. Section 3 thereof defines the bodies of Law applicable in our
Court as follows:-
1. The Constitution of Kenya - which is the Supreme Law
2. All Written Laws/ Statutes/ Acts of Parliament to include Acts of Parliament of U.K. cited in Part I
of the Schedule as modified in accordance with Part II
3. Common Law – under which the Presumption of Marriage falls
4. Doctrines of Equity
5. Statutes of General Application in force in England on 12th August 1897
6. Procedure and Practice observed in the Courts of Justice in England as at 12th August 1897
7. African Customary Law where parties are subject to it or affected by it.
Case Studies
In the case of KISITO CHARLES MACHANI vs ROSEMARY MORAA, HCCC MISC. NO. 364 OF 1981
NAIROBI, which case is constantly referred to in many current judgments, the plaintiff sought various
orders; inter alia, a declaration that the defendant is not the wife of the plaintiff. The defendant filed a
defense in which she stated that she was the plaintiff’s wife according to Kisii Customary Law and/or by
virtue of the common law presumption of a valid marriage following a long period of cohabitation as
husband and wife and acceptance by the community as such, stated that the matrimonial home was at
Karen College but that the defendant and the plaintiff lived as husband and wife there and occasionally
spent time in a house at Woodley Estate.
The plaintiff when he gave his evidence was very evasive about his relationship with the defendant.
However, in his evidence he admitted that during their association 3 children were born and in various
portions of the evidence he admitted that it was very likely that he was the father of all 3 children. It
was clearly the plaintiff’s case that the defendant was nothing more than a friend to him and there was
no real association or living together at all and no association before the families. The brother of the
plaintiff testified that no dowry had been paid by the plaintiff and further stated that the family of the
plaintiff used to take the defendant as the wife of the plaintiff.
Further it was accepted by the defendant that no formal marriage ceremony of any nature whether by
law or custom or in church took place at any time. The defendant’s case was that many couples in
Nairobi start living together with the knowledge of the families as man and wife and are treated as such
by friends and by the families.
The court stated that it had no hesitation in finding that whilst none of the formal ceremonies which
would normally be expected to be performed in a Kisii Customary Marriage were in fact performed,
nevertheless the intention in the relationship between the plaintiff and the defendant was to establish
the relationship of man and wife and that both families knew so and accepted so.
In HIGH COURT CIVIL CASE NO. 1460 OF 1977, NGARI VS GETANGI AND OTHERS, Muli J. as he then was,
found the following on the facts before him which related to a Kikuyu Customary Marriage:-
"From evidence as a whole and the circumstances surrounding the relationship or association between
the deceased and Juliana there was a marriage association which was impeded from reaching maturity
by violent disagreements and certain customary formalities including slaughtering of "ngurario". This
association remained for a long period for the court to reasonably presume a valid marriage which I
hereby presume to have existed."
Muli J. presumed the marriage to have existed despite the fact that there was no doubt that no
marriage ceremony had ever been properly performed. What Muli J. looked at was the circumstances
surrounding the relationship between the parties and he clearly found that the association was that of
husband and wife.
The greatest difficulty in the said case of Charles Machani vs Rosemary Moraa, was that the defendant
during the association between the parties herein, had been a party to a marriage with a gentleman
from Zambia. The Court was of the opinion that during the period of cohabitation of the plaintiff and the
defendant, from which the court was invited to presume a customary marriage, it was true to say that
there was a valid and subsisting marriage between the defendant and one Mr. Vermoor. The association
between the plaintiff and the defendant was therefore adulterous and the court was concerned that
throughout this case it would be difficult in those circumstances to presume that the plaintiff was
entering the association with the defendant with a view to marriage.
The court relied on the case of Chesire vs Chesire, Platt, J. where the Learned Judge stated on the
authority of Hill vs Hill (1959) AER 281, that a presumption of valid marriage can still be made even
though the association starts in adultery. Further the court was of the view that from the circumstances
of the case and on the basis of the evidence given by the defendant, that it was quite clear that the basis
upon which the plaintiff and the defendant started living together was that they wished to be accepted
as man and wife by everybody around in spite of the obvious problem caused by the earlier marriage.
The Court finally held that in consideration of all the circumstances, on the authority of Yawe v Public
Trustee Misc. Case No. 16 of 1973, on the basis of the decision of Muli J. in Ngari vs Getangi and Others
and on the basis of Hill and Hill as quoted by Platt J. in Chesire vs Chesire, the court could presume that
a marriage did exist between the plaintiff and the defendant. Further the court held that there was
nothing in the case of the petitioner which was sufficiently credit worthy to assist the court in finding
that the presumption had been rebutted and the court therefore presumed that a marriage existed
between the plaintiff and the defendant on a customary basis.
In R vs Fita s/o Mihayo, the accused cohabited with a lady for between 4 – 8 months. The accused
found the lady performing a sexual act with another man and promptly killed the man. In his defense, on
a charge of murder, the accused claimed that he was provoked. The Court then had to consider whether
the aforementioned period of cohabitation could be presumed as marriage. The accused relied on
customary law, which provides that a man can take a woman as a wife and cohabit with her even before
payment of dowry. If the woman then involves herself with another man; that would amount to
provocation. The court therefore held that the 4-8 months cohabitation constituted marriage and the
charge against the accused was reduced to manslaughter.
From the foretasted material, the question that quickly comes to mind is: What really is the difference
between come we stay and cohabitation which gives rise to the presumption of marriage? Many
scholars are of the opinion that come we stay is not cohabitation owing to the temporary state of affairs
associated with the come we stay unions. However, I am of the opinion it is a very thin line between
what is considered a come we stay union and what is considered cohabitation. As earlier indicated there
are persons who take advantage of this state of affairs to commence the come we stay union with the
intention of permanence, the only limiting factor being the resources to conduct any marriage
ceremony. At this point, I would just like to highlight the contents of an aforementioned paragraph
herein extracted from the said case of Charles Machani vs Rosemary Moraa, to wit,
"The court stated that it had no hesitation in finding that whilst none of the formal ceremonies which
would normally be expected to be performed in a Kisii Customary Marriage were in fact performed,
nevertheless the intention in the relationship between the plaintiff and the defendant was to establish
the relationship of man and wife and that both families knew so and accepted so."
In the aforementioned case, the court presumed that there was a marriage between the parties therein.
In conclusion it is important to note that come we stay affairs have societies thinking and Legislators and
Jurists the world over are seriously taking into account the prevailing trend of come we stay unions.
Kenya is no exception. The Proposed Marriage Bill – 2007 – drafted by the Kenya Law Reform
Commission defines “Marriage” in a much wider sense and further recognizes presumption of marriage
arising from cohabitation. More particularly, the Marriage Bill proposes to provide for the said
presumption in statute. As the law stands, the presumption of marriage is only recognized in Kenya by
virtue of Common Law which is applicable in Kenya.
The Marriage Bill proposes at Section 3 to define “Marriage” as follows:-
"Marriage means the voluntary union of a man and a woman intended to last for their life time."
Further the Marriage Bill proposes at Section 7 to provide for the “Presumption of Marriage”. The said
section provides as follows:-
"Where it is proved that a man and woman having capacity to marry have lived together openly for at
least two years in such circumstances as to have acquired the reputation of being husband and wife,
there shall be a rebuttable presumption that they were duly married."
From a legal stand point, I would advise all men and women planning to live together in union as man
and wife to enter into formal marriage from the outset. Such action helps to avoid the pitfalls of come
we stay marriages that could in some cases turn out to be very expensive to one or both partners or
even the children born out of such a union. Furthermore, in this time and age when men and women are
searching for formal employment and wealth creation alike, many are the times when either of the
spouses in a marriage will be required to provide legal proof of marriage in order for them to carry out
certain transactions.
Recent laws on Come We Stay Legal Marriage
Come We Stay Over Six Months to Be Legal Marriage
In Nov 2012 Cabinet approved a law which will recognise come-we-stay arrangements of over six
months as legal marriages.
The Marriage Bill proposes that chiefs will be enabled to considered 'come-we-stay' affairs that last
more than six months as a marriage and to register them as such.
'Come-we-stay' unions usually arise where a man and a woman commence living together as husband
and wife and even have children without formalising of their union.
The law which brings together Christian, Islamic and Hindu marriages as well as marriages consummated
under Civil and African Customary law provides legal protection to all marriages and will facilitate the
protection of the rights of children and spouses in all types of marriages in the country.
Come-we-stay unions appear to be now very prevalent and more so, among youngsters despite the fact
that these unions have faced religious condemnation.
Many Kenyans are now 'married' in this manner and the situation can no longer be ignored or wished
away.
Further, people who may not have means to carry out traditional or civil marriages have also taken
advantage of this state of affairs to 'get married'.
The Marriage Bill also provides for maintenance of spouses and children in a situation where a marriage
has broken down or divorce has occurred after co-habiting.
The Cabinet which met under the chairmanship of President Mwai Kibaki also passed a law which if
approved by Parliament will see pre-nuptial contracts and equal rights to spouses became legal.
The Matrimonial Property Bill provides for the rights and responsibilities of spouses in relation to
matrimonial property.
It recognises the capacity of either spouse to acquire separate property during marriage.
It also makes provisions for how persons professing the Islamic faith should be governed by Islamic law
in all matters relating to matrimonial property.
Further, the Bill provides for how matrimonial property shall be dealt with in cases of polygamous as
well as customary marriages.
The Bill also allows for spouses to enter agreements as to how they will own property either separately
or collectively.
It also provides for division of matrimonial property between and among spouses within the context of
customary law, particularly in polygamous unions.
Annulments
A marriage under the Kenya family law may be nullified as void or voidable much in the same manner as
a contract. A marriage is void when the parties do not have the capacity to marry (known as the
essential validity of the marriage). Thus, marriages between blood relations, or parties already married,
underage, or otherwise unable to consent would all be invalid for lack of essential validity. A marriage is
voidable and can be annulled by a court if the spouses are incapable of consummating the marriage.
The formal prerequisites of a valid marriage are set out in the Marriage Act.
Petition for nullity of marriage. A husband or wife may present a petition to the court praying that his or
her marriage may be declared null and void.
Grounds for decree of nullity .The following are the grounds on which a decree of nullity of marriage
may be made -
(a) that either party was permanently impotent, or in capable of consummating the marriage, at the
time of the marriage; or
(b) that the marriage had not been consummated owing to the willful refusal of the respondent to
consummate the marriage; or
(c) that the parties are within the prohibited degrees of consanguinity (whether natural or legal) or
affinity; or
(d) that the former husband or wife of either party was living at the time of the marriage, and the
marriage with such previous husband or wife was then in force; or
(e) that the consent of either party to the 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
(f) that either party was at the time of the marriage of unsound mind or subject to recurrent fits of
insanity or epilepsy; or
(g) that the respondent was at the time of the marriage suffering from venereal disease in a
communicable form; or
(h) 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 paragraphs (f), (g) and (h) 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 within a year from the date of the marriage; and
(iii) that marital intercourse with the consent of the petitioner has not taken place since the discovery by
the petitioner of the existence of the grounds of decree.
Decree nisi for divorce or nullity of marriage.Every decree for a divorce or for nullity of marriage shall,
in the first instance, be a decree nisi not to be made absolute until after the expiration of six months
after the pronouncing thereof, unless the court by general or special order from time to time fixes a
shorter time.
Remarriage of divorced person.As soon as any decree for divorce is made absolute, either of the parties
to the marriage may, if there is no right of appeal against the decree absolute, marry again as if the prior
marriage had been dissolved by death or, if there is such a right of appeal, may so marry again, if no
appeal is presented against the decree, as soon as the time for appealing has expired or, if an appeal is
so presented, as soon as the appeal has been dismissed.
Separation and contracts

The legal implications of a marital separation under the Kenya family law may be regulated by a
contract. A separation agreement is typically negotiated and drafted. It agrees to the division of
property as well as child support, custody, and access. Parties can also enter into pre-nuptial contracts
to regulate the economic consequences of a future marriage breakdown. If it is shown that one party
had unfairly negotiated the agreement can be invalidated.
Decree of judicial separaton-A petition for judicial separation may be presented to the court by either
the husband or the wife on any grounds on which a petition for divorce might have been presented, or
on the ground of failure to comply with a decree for restitution of conjugal rights, and the provisions of
this Act relating to the duty of the court on the presentation of a petition for divorce, and the
circumstances in which such a petition shall or may be granted or dismissed, shall apply in like manner
to a petition for judicial separation.
Wife’s property in case of judicial separation-In every case of judicial separation -

(a) the wife shall, as from the date of the decree and so long as the separation continues, be considered
as a feme-sole with respect to any property which she may acquire or which may devolve upon her, and
any such property may be disposed of by her in all respects as a feme-sole and if she dies intestate shall
devolve as if her husband had been dead; and
(b) the wife shall, during the separation, be considered as a feme-sole for the purpose of contract and
wrongs and injuries, and of suing and being sued, and the husband shall not be liable in respect of her
contracts or for any wrongful act or omission by her or for any costs she incurs as plaintiff or defendant:
Divorce in Kenya
A spouse under the Kenya family law may only apply for a divorce when the spouses have been separate
and apart for at least one year, when there has been adultery or where there has been cruelty.
This section tells you everything you need to know about divorce law in Kenya. To begin with, it is
necessary to note that one cannot ask for divorce from a court during first three years after marriage:
Provided that a judge of the court may, upon application being made to him in accordance with rules
made under this Act, allow a petition to be presented before three years have passed on the ground
that the case is one of exceptional hardship suffered by the petitioner or of exceptional depravity on the
part of the respondent, but, if it appears to the court at the hearing of the petition that the petitioner
obtained leave to present the petition by any misrepresentation or concealment of the nature of the
case, the court may, if it pronounces a decree nisi, do so subject to the condition that no application to
make the decree absolute shall be made until after the expiration of three years from the date of the
marriage, or may dismiss the petition without prejudice to any petition which may be brought after the
expiration of the said three years upon the same, or substantially the same, facts as those proved in
support of the petition so dismissed. In determining any application for leave to present a petition
before the expiration of three years from the date of the marriage, the judge shall have regard to the
interests of any children of the marriage and to the question whether there is reasonable probability of
a reconciliation between the parties before the expiration of the said three years.
Grounds of petition for divorce.

A petition for divorce may be presented to the court either by the husband or the wife on the ground
that the respondent -
(a) has since the celebration of the marriage committed adultery; or
(b) has deserted the petitioner without cause for a period of at least three years immediately preceding
the presentation of the petition; or
(c) has since the celebration of the marriage treated the petitioner with cruelty; or
(d) is incurably of unsound mind and has been continuously under care and treatment for a period of at
least five years immediately preceding the presentation of the petition, and by the wife on the ground
that her husband has, since the celebration of the marriage, been guilty of rape, sodomy or bestiality.
Duty of court on presentation of a petition for divorce.

(2) If the court is satisfied on the evidence that -
(a) the case for the petitioner has been proved; and
(b) where the ground of the petition is adultery, the petitioner has not in any manner been accessory to,
or connived at, or condoned, the adultery, or where the ground of the petition is cruelty the petitioner
has not in any manner condoned the cruelty; and
(c) the petition is not presented or prosecuted in collusion with the respondent or either of the
respondents, the court shall pronounce a decree of divorce, but if the court is not satisfied with respect
to any of the aforesaid matters it shall dismiss the petition:
Provided that the court shall not be bound to pronounce a decree of divorce, and may dismiss the
petition if it finds that the petitioner has during the marriage been guilty of adultery or if, in the opinion
of the court, the petitioner has been guilty -
(i) of unreasonable delay in presenting or prosecuting the petition; or
(ii) of cruelty towards the other party to the marriage; or
(iii) where the ground of the petition is adultery or cruelty, of having without reasonable excuse
deserted, or having without reasonable excuse willfully separated himself or herself from, the other
party before the adultery or cruelty complained of; or
(iv) where the ground of the petition is adultery or unsoundness of mind or desertion, of such willful
neglect or misconduct as has conduced to the adultery or unsoundness of mind or desertion.
(3) For the purposes of this section, adultery shall not be deemed to have been condoned unless
conjugal cohabitation has been continued or subsequently resumed.
Under Kenya laws, the method in which one divorces depends on the type of marriage one contracted.
There are various types of divorces under the Kenya family law and this include:
1. Divorce under customary law
2. Judicial divorce
3. Islamic divorce
4. Hindu divorce
Divorce under civil law
Under the 1941 Matrimonial Causes Act, Kenya's High Court may grant a decree of judicial separation
for partners in civil-law marriages. Either the husband or wife can petition for a separation on the
following grounds: the spouse has committed adultery; has deserted the marriage for at least three
years; is incurably of unsound mind, and has been under continuous treatment for at least five years; or
has committed rape, sodomy or bestiality.
Women are also eligible for separation under the 1929 Subordinate Courts (Separation and
Maintenance) Act, which extends the grounds for separation to include a husband's substance abuse,
spreading of venereal disease, cruelty and neglect, or forcing the wife into prostitution.
Divorce under customary law
Divorce under Customary law in Kenya can be both judicial or extra judicial and just like Islamic Law
before the parties are divorced there is a reconciliation process whereby the elders seek to reconcile the
parties. It is only after reconciliation has failed that the elders may dissolve the marriage.
Not all Kenyan communities practice divorce. There are some communities that do not recognise
divorce at all for example the Kuria community to a certain extent the Kisii community as well.
This may be under Kenya laws initiated by the Husband or the wife or even by the wife’s family. 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 daughter.
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.
Under customary law, return of the bride prices symbolises a valid divorce but this will depend on
whether there are any children of that marriage. If the husband retains custody of the children no
refund of the bride price is due. Where the mother seeks to retain custody of the children, then the
bride price returned will depend on the number and gender of the children.
Where the wife initiates the divorce, the full bride price is due. And among some communities where
the husband has initiated the divorce and the wife remarries then her new husband refunds him the
bride price.
In order for the elders to dissolve a marriage, they have to be satisfied that certain factors have taken
place which are sufficient enough for a party to seek divorce. This include
 1. Refusal to have sexual relations for no good reasons;
 2. Witchcraft;
 3. Wilful desertion;
 4. Habitual theft;
 5. Incest;
 6. Excessive physical cruelty;
 7. Failure of the husband to maintain his wife and children
 8. Adultery on the part of the wife
9. Impotence on the part of the husband although some communities allow an impotent man to allow
his close relatives or friends to have sexual relations with his wife (barrenness of the wife is not a ground
for divorce this is because African Customary Law allows for polygamy)
JUDICIAL DIVORCES
A Judicial divorce will only take place under Kenya laws where a party has refused to comply with an
extra judicial divorce e.g. where the husband refused to accept return of the bride price or where the
wife refuses to leave her matrimonial home.
All the grounds listed in the extra judicial will be used and 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 prove that
reconciliation has failed will the courts proceed to hear the divorce and grant it.
Divorce Cases arising under Customary Law in Cotran’s Book
1. Leonita Salume V. Captan Nyongesa. It was claimed that the husband had failed to maintain the wife
and the children. In 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 v. Nyongesa
Habitual theft of chicken. The wife stated that in addition to the husband being cruel every time he
came home with chicken which had been unlawfully obtained.
Divorce under Islamic law
There are two forms of divorce under Islamic Law
1. Extra Judicial Divorces
2. Judicial Divorces.
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,
1. He may start by kind exhortations or reprimands where he denies her a few necessities;
2. He may then withdraw from the matrimonial bed however this should be of a temporary nature; and
if this fails
3. 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.
There are a number of extra judicial divorces that the parties can undertake
1. Talak which is dissolution of the marriage by the unilateral acts of the husband; there are certain
conditions to be fulfilled in order to make this divorce complete and valid
a. The husband must be of age;
b. He must be seen conscious alert and should not be angry;

c. He should not be intoxicated;
d. He should be free from external pressures;
e. His intention to terminate the marriage must be clear.
On the part of the wife
a. She should be of age;
b. Must be in a healthy state of mind;
c. Must be in a state of purity by which is meant that she should not have had any sexual relations with
her husband and should not be menstruating.
If these conditions are met, the husband may then pronounce the first talak, either in written or oral
form and by talak he merely says I divorce thee’. He may revoke this pronouncement, forgive his wife
and they may resume conjugal cohabitation. If however 40 days have passed and the husband has not
revoked his pronouncement and the conditions the he stated still applied, he may then pronounce the
second talak, he still has the option of revoking this pronouncement but if he does not and 40 days
elapse and the conditions remaining constant he may then pronounce the 3rd talak. The effect of the 3rd
talak is to make the divorce complete and valid and the wife has the option of remarrying. All the time
that the talaks are being pronounced she is still in the matrimonial home.
Before the wife remarries she has to wait for the period of 4 months or Iddat period and she cannot
remarry her ex-husband until she has been married by another man or divorced or widowed. This
condition is there so as to ensure that the husbands do not divorce their wives recklessly.
2. Ila Divorce: this is a form of constructive divorce which is effected by abstinence from sexual
relations for a period of not less than 4 months. If reconciliation is impossible then the marriage is
dissolved.
3. Zihar – this divorce arises where the husband continuously compares his wife with another female or
his mother and the wife may refuse to have any sexual intercourse with him unless he changes and if
this fails the marriage is deemed to have been dissolved.
4. Lian Divorce: this is where a husband suspects that his wife is committing adultery but does not have
any evidence. He then testifies or swears that he is telling the truth and he does so four times and on
the fifth times he swears that he be cursed if he is lying. The wife on the other hand swears four times
that she is telling the truth and the fifth time that she be cursed if she is lying and after this the marriage
is dissolved.
5. Khula: initiated by the wife if she feels that she is unhappy with the marriage, she then returns the
mahil 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.
6. Mubarat; divorce by mutual agreement where both parties desire the divorce. It can be initiated by
either party and the wife loses any right she had to her dowry but the husband remains liable to
maintain the children.
7. Apostasy: where either spouse abandons the Islamic religion.
Section 3 of the Mohamedan Marriage and Divorce Act grants the High Court the jurisdiction to a hear
and determine matrimonial causes under Islamic Law where the Petitioner is resident in Kenya. Kadhi’s
courts can also hear and determine matrimonial causes where both parties are Muslims. Both Acts do
not provide the grounds for divorce but refer to the principles of Islamic Law and under Islamic Law,
according to scholar’s grounds for divorce include
a. Desertion by the husband for a period of 5 years;
b. Failure of the husband to provide maintenance for a period of two years;
c. Imprisonment of the husband for a period of 7 years.
d. Failure of either spouse to perform marital obligations.
e. Where the husband is either insane, cruel, impotent, suffering from leprosy or a venereal disease or
where he is captured by war enemies.
f. In cases of extreme or severe poverty.
Under Judicial divorce, when the divorce has been pronounced by court, both spouses are required to
register under the Mohamedan Marriage and Divorce Registration act and this should be done within 7
days of the pronouncement of the divorce. However failure to register will not invalidate a valid divorce
or vice versa
Divorce under Hindu law
Divorce under Hindu law is basically as provided for under the Matrimonial Causes Act and all that is
stated will apply to Hindu.
Section 10 of the Hindu Marriage and Divorce Act and the grounds for divorce are
1. Adultery;
2. Cruelty;
3. Desertion for a period of 3 years;
4. Unsoundness of mind where the Respondent has been under medical care for a period of five years
5. Where husband is guilty of bestiality sodomy or rape
Consideration that will avail for all these grounds are the same as under statutory law. there are other
grounds for divorce under Hindu Law
1. Where the Respondent has ceased to be a Hindu;
2. 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.
3. 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.
4. Where the husband is married to another woman at the time of celebration of the marriage. This can
be both for annulity of a marriage and divorce as well.
Concern of feminism with family law:

Family law—also called personal status law—is one of the central institutions of gender. Family laws
shape the capacity of a citizen to own, inherit, and manage property; to work outside the home; her
freedom to marry, divorce, and remarry; and her or his relationship with children.1
Most modern family law emphasizes patriarchy and other forms of male dominance. It tended (and still
tends) to maximize men’s power over women and limit the latter’s ability to make decisions and take
independent action. Women were obliged to obey their husbands, had limited access to divorce, and, in
many traditions, fewer inheritance rights than men.2 In this sense then, feminists have been
instrumental in pushing for change and advocating for the equality of sexes.3
Looking at how the family institution is wired, the state looks at it as a private affair, in this sense there
is division of domestic and public affairs. The division between the domestic and public spheres of
activity is particularly constraining to women and advantageous to men. The domestic and public
spheres of activity are associated with different amounts of property, power, and prestige. Women’s
reproductive roles and their responsibilities for domestic labor limit their association with the resources
that are highly valued. Men are freed from domestic responsibilities. Their economic obligations in the
public sphere assure them of control of highly valued resources and give rise to male privilege.4
It is evident however, that the feminist movements have over the years fought tooth and neck to try and
inverse the effect of partriachial laws by advocating for women’s’ rights all over the country and
inserting their influence on legislative reform. Some of the recent footprints of this struggle include the
new constitution of Kenya (2010), the Matrimonial Property Act, Marriage Bill, Protection against
Domestic Violence Bill (2012) and other legislations that directly or indirectly affect the rights of women
in a family set-up.
Commission for Implementation of the Constitution completed its audit of The Family Law Bills
(Marriage Bill; Matrimonial Property Bill [now it’s an Act] and Protection against Domestic Violence [or
previously titled the Family Protection Bill]) which are scheduled for enactment within five years of the
promulgation of the constitution. The internal audit of the bills was done to ensure compliance with the
1
Mala Htun and Laurel Weldon, ‘sex equality in family law: historical legacies, feminist activism,
and religious power in 70 countries’ (WORLD DEVELOPMENT REPORT 2012)
2
Ibid.
3
Supra note 1.
4
Nancy Baraza, Lost Between Rhetoric and Reality: What Role for the Law and Human Rights in Redressing Gender
Inequality? (Kenya Law Review, Vol II: 2008-2010)
letter and spirit of the Constitution as well as the provisions of international instruments which subject
to article 2 of the Constitution form part of the laws of Kenya.5
There are areas that are targeted by reform in family law and they include, inter alia, marriage law,
matrimonial property law, inheritance law, children laws and domestic violence law. It’s now prudent to
go ahead and examine this envisioned reforms putting in context with the current regime. It is worth
recognizing that Kenya’s patchwork of family and inheritance laws was reviewed in the 1960’s by
commissions that recommended revamping those laws in favor of an integrated system. Subsequent
attempts to reform Kenya’s family law have limped along with a few tangible results.6 However, the
constitution having been passed is now pressuring reform in all spheres with timelines to the enactment
of gender friendly family laws.
Marriage law:
Multiple legislations characterize the marriage institution in Kenya. The law of Kenya recognizes four
systems of marriage and divorce, namely, statutory marriage and divorce, customary marriage and
divorce, Hindu marriage and divorce and Islamic marriage and divorce.7 More specifically, the acts of
parliament governing marriage in Kenya are as follows: Marriage Act,8 African Christian Marriage and
Divorce Act,9 Matrimonial Causes divorce Act,10 Subordinate Courts (separation and maintenance) Act,11
Hindu Marriage and Divorce Act,12 Mohammedan Marriage and Divorce Registration Act.13
In 1967, the president appointed two commissions to look into the marriage and inheritance laws and as
a result they produced drafts to uniform family and inheritance codes.14 The commission was to pay
particular attention to the status of women in relation to marriage and divorce in a free and
democratic society.15 However, since the 1970s efforts to enact a uniform marriage law have been
unsuccessful as the marriage law continues to be governed by separate legislations.16
5
Commission for Implementation of the Constitution: ‘will these bills revolutionize marriage in kenya? cic audit
report on the family law bills (marriage bill 2012; matrimonial property bill 2012; protection against domestic
violence bill 2012)’
Sep 18 2012
6
Human Rights Watch: ‘Double standard; women’s property rights violation in Kenya’. [Vol.15, no. 5(A) 2003]
7
Tudor Jackson, ‘The Law of Kenya: an Introduction’, (2nd edition[revised] 1978, Kenya Literature Bureau)
8
Chapter 150, Laws of Kenya.
9
10
11
12
13
14
Hunton Williams; ‘customary and Islamic law and its development in Kenya’ (published in the Legal Brief Africa
on Monday, 11th October, 2004 [issue no. 100])
15
Supra note 20
16
Hunton Williams; ‘customary and Islamic law and its development in Kenya’ (published in the Legal Brief Africa
on Monday, 11th October, 2004 [issue no. 100])
There have been various judicial pronunciations that toward the status of women in a marriage
institution, some elevating their status while some trembling upon their status. However, it is not until
the promulgation of the constitution, 2010 that the effort of elevating the status of women in Kenya has
been felt. This is the first legislation, being the supreme law of the land to give force to the equality of
spouses in a marriage institution. Article 45(3) states that “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.” This is a
deviation from the partriachial nature of African who treat women as inferior and man as superior.
Another important contribution is the recognition of…”marriages concluded under any traditions”17…as
long as the same is consistent with the constitution. The provision seeks to do away with the injustice
that was occasioned in the landmark case of Republic v Amkeyo18 where Justice Hamilton dismissed
customary marriages as mere wife purchase.
The newest legislation toward the reform of marriage institution is the proposed Marriage Bill, 2007.
This bill was drafted by the Kenya Law Reform Commission to replace the various legislations that
govern the marriage institution and to consolidate all laws relating to marriage into one.19 There are
various changes that the Marriage Bill has brought about some of which caused confusion in the
previous multiple systems. Section 3(1) of the marriage bill defines marriage as “the voluntary union of a
man and a woman whether in a monogamous or a polygamous union and registered in accordance with
this Act.” This section caters for all marriages, be it polygamous or monogamous and be it under civil or
customary law. Before this bill it can be seen that every form of marriage in this country had their
definition of marriage. For instance, the civil and Christian marriages were defined in accordance with
the words of Lord Penzance in the case of Hyde v Hyde, “I conceive that a marriage as understood in
Christendom may for this purpose be defined as the voluntary union for life of one man and one
woman, to the exclusion of all others.” The Bill seeks to cure…the dubious reasoning that lay behind the
actual decision in that case as well as the subsequent developments that have taken place in the law
relating to polygamous marriages.20
Section 3(2) of the Bill provides that the parties to a marriage have equal rights before, during and after
marriage. Previously, the man was seen as the dominant factor in a marriage and the woman has no say
but to follow orders. For instance, the Hindu marriages under the duties and obligations of the marriage,
provides that a wife should submit to the husband. This is what the feminist strongly fight against as
they recognize that in a marriage institution there are many vices against the woman and as such the
push led to the incorporation of the equality of parties in the marriage institution. Whether this
provision is just in theory and the contrary happens in practice is a whole issue altogether.
Additionally, there are various provisions whose enactment have brought relief to the female gender
and are attributed to constant push by feminist groups. One of such is section 4 which makes a
requirement that for a person to marry, then that person must be aged 18years. This is a provision that
runs across the board without any regard as to under what system the marriage was conducted.
Previously, the age of marriage to Islam was when a woman attained the age of puberty. This has been
17
Article 45(4)[a], constitution of Kenya, 2010
18
67, E.A.L.R. 14
19
Mueni Mbuvi (Advocate of the High Court, Kenya):’Legal/statutory marriages in Kenya’.
20
Sebastian Poulter: ‘the definition of marriage in English Law’.(modern law review journal, vol 42. No. 4[july,1979]
pg. 409-429)
seen as a grave violation of the rights of the girl child because most of them attain puberty at 9 years of
age and they are still so young to understand the marriage language. At the end of it she is abused
physically and also required to go through labor when she gets pregnant.
Another significant move is the codification of the provisions that govern customary law and goes ahead
to state that “all marriages conducted under this Act shall have the same legal status.”21 It goes ahead to
require registration of all marriages conducted under it.
Another highlight was when Parliament passed the Bill allowing men to marry as many women as they
want, prompting furious female MPs to storm out. The proposed bill had initially given a wife the right
to veto the husband's choice, but male members of parliament overcame party divisions to push
through a text that dropped this clause.22
Matrimonial property law:
Women's rights to property are unequal to those of men in Kenya. Their rights to own, inherit, manage,
and dispose of property are under constant attack from customs, laws, and individuals-including
government officials-who believe that women cannot be trusted with or do not deserve property.
The country had been applying the Married Women’s Property Act to safeguard women’s rights. For
instance, section 17 provided that women could go to court in a matter where they needed a
determination over the division of property. It also gave women the right to own property separately.
However, the interpretation of this section had yielded different contradicting results. In Karanja v
Karanja,23 the court held that when property is purchased jointly by both spouses and registered in the
name of the husband with the wife’s approval, a resulting trust can be inferred in her favor. The same
decision was reinforced in the case of Kivuitu v Kivuitu 24where the learned judge stated that where
property is acquired during covertures is registered jointly, the same shall be presumed to be held in
equal shares. He went further to presume that every wife has some interest in property acquired and
registered in her husband’s sole name due to her indirect contribution occasioned by fulfilling the duties
of a wife and mother. Up to this point the judges, I could say were being careful in recognizing the rights
of the woman in a marriage institution as concerns property because in the olden times men would be
registered as sole owners of property and it was only fair to recognize that part of that was held in trust
for the wife.
However, things took a sad turn for women in the decision of Echaria v Echaria25 where the court stated
that non-monetary contribution to the marriage did not entitle the wife to the share of the property.
Additionally the court noted that previous decisions that favored women were going way ahead of
21
Section 3(3), Marriage Bill, 2013
22
The Guardian, ‘Kenya’s Parliament passes bill allowing polygamy’
23
(1976) K.L.R. 356
24
(1991) K.L.R. 241
25
Civil Appeal 75 of 2001 (2007) eKLR (CA)(KENYA)
parliament as it parliament had not enacted a law to give way to the rights women in marriage as
concerns property.
The development reaches its climax with the enactment of the matrimonial property act which was
enacted in 2013 and began operation in 2014. FIDA is one of the women organizations that have been in
the forefront in advocating for the enactment of the act. Some of the notable contributions of this act
include the definition of matrimonial contribution to include monetary and non-monetary. It also gives
women the same right as men to acquire, own and dispose of property. Furthermore it defines
matrimonial property to include: homes, household goods, property which provides income for the
sustenance of the family and any other property acquired during the subsistence of the marriage, which
the spouses impliedly or expressly agree to be matrimonial property.
However, the original Matrimonial Property Bill contained a provision to the effect that matrimonial
property was vested in the spouses in equal shares irrespective of their contribution and it would be
divided in the same equal share in the event of a divorce.26This provision was scraped off when the Bill
was tabled in parliament and the Honorable members replace it with a provision that states that
matrimonial property was to be share according to each spouse’s contribution for its acquisition.27
Another salient feature of the Act is the introduction of the pre-nuptial agreement between spouses on
how they intend to share the ownership of the property among themselves during the marriage and
after divorce.28
Domestic violence laws:
Domestic violence is a pattern of behavior in a relationship that is used to gain power and maintain
power and control over an intimate partner. It can take various forms like physical, sexual, emotional,
26
Section 7, Matrimonial Property Bill, 2012
27
Section 7, Matrimonial Property Act no 49 of 2013, Laws of Kenya
28
Section 6(3), ibid
financial or psychological.29 Previously, domestic violence was only regarded as the physical violence
inflicted on a person by their husband, wife or cohabitant.30
It is widely recognized that women experience domestic violence at far greater rates than men do, and
women and children often live in fear as a result of the abuse that is used by men to maintain control
over their partners. 31
The constitution of Kenya provides that every person has a right to the respect and protection of his
dignity and also the right to security of the person which includes protection from any form of violence
emanating from public and private sources.32 This can be the ground over which domestic violence
victims can seek redress to the courts.
For a long time in Kenya we do not have a concrete law in relation to domestic violence yet. However,
women’s movements like FIDA-Kenya and the Coalition on Violence against Women-Kenya (COVAW-
Kenya) have been on the outlook raising the plight of women in the country and advocating and at the
same time pushing for the enactment of Legislation on domestic violence. Their effort is about to bear
fruit because the Protection against Domestic Violence Bill (2012) is awaiting discussion by parliament.
Kenya being a signatory to the Declaration on the Elimination of Violence against Women33 would be
keen to incorporate some of the positions of the declaration into our domestic law. It defines violence
to include: ‘Physical, sexual and psychological violence occurring in the family, including battering,
sexual abuse of female children in the household, dowry-related violence, marital rape, female genital
mutilation and other traditional practices harmful to women, non-spousal violence and violence related
to exploitation’34 under section 4 of the Protection Against Domestic Violence Bill provides a
comprehensive definition of Domestic Violence and reading between the lines would reveal how the bill
seeks to protect the rights of women. It has been taken to include: forced marriage, female genital
mutilation, wife inheritance, wife cleansing, sexual violence, virginity test, widow cleansing and child
marriage among others. This is just a sample to show how women oriented the Bill is.
The objective of the Bill is to provide legal redress to the victims of domestic violence and to ensure
they are protected from the perpetrators of such violence.35
29
The Star; ‘Domestic Violence and The Law’,(Thursday, 16th February, 2012, Kenya)
30
Oxford Dictionary of Law (7th Edition, Oxford University Press) at pg 182
31
Women’s Council for Domestic and family Violence Services; ‘The Definition of Domestic Violence’
32
Article 28 and 29(c)
33
Proclaimed by General Assembly resolution 48/104 of 20 December 1993
34
Article 2, Declaration of Elimination of Violence against Women
35
Section 3, Protection Against Domestic Violence Bill, (2012)

Kenya Family Law: Overview of Marriage, Divorce and Children

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Kenya Family Law: Overview of Marriage, Divorce and Children

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An overview of Kenya Family law

 marriage, civil unions, and domestic partnerships;

 adoption and surrogacy

 child abuse and child abduction

 paternity testing and paternity fraud

Kenya family law: African christian marriage

CONDITIONS THAT APPLY WHEN CONTRACTING A CUSTOMARY LAW MARRIAGE.

Mwagiru v. Mumbi, Omondi v. Chum Nyafula

FORMALITIES IN A CUSTOMARY LAW MARRIAGE

Amulan Ogwang v. Edward Ojok

Momanyi Nyaberi v. Onwonga Nyaboga, Onchoke vs. Kerebi

3. by way of elopement or capture.

There are 3 aspects to a marriage under Muslim Law

3. FASID (IRREGULAR). This is where either:

1. No witnesses to that marriage.

2. Woman was undergoing the period of Iddat.

3. Marriage is with a person from a different religion.

4. A man purports to marry a fifth wife.

CONDITIONS RELATING TO CAPACITY UNDER KENYA LAW

1. Parties must be biologically a man and a woman;

2. The parties must have reached the age of puberty;

Mulla: Principles of Mohamedan Law

Ockba v. Ockba (1957) E.A 675

Mohammed v. Salim 6 KL.R 91

Bibi v. Bibi 8 E.A.L.R. 200

FORMALITIES TO CONTRACT A MUSLIM MARRIAGE

EFFECTS OF AN ISLAMIC MARRIAGE – RIGHTS & DUTIES WHICH ARE BESTOWED

1. Brahma Marriage: No marriage consideration is paid by the bride’s father.

2. Asura Marriage consideration is paid by the bride’s father

In both marriages dowry is paid by the bride’s family.

CONDITIONS WHEN CONTRACTING A HINDU MARRIAGE UNDER KENYA LAWS

FORMALITIES UNDER KENYA LAW

MATRIMONIAL RIGHTS AND DUTIES OF HINDU MARRIAGES UNDER KENYA LAW

 Civil marriage and the recent

Formalities to be followed under Statutory Law

 Come we stay marriage

No statutory provision recognizes come we stay unions in Kenya.

1. The Constitution of Kenya - which is the Supreme Law

3. Common Law – under which the Presumption of Marriage falls

5. Statutes of General Application in force in England on 12th August 1897

7. African Customary Law where parties are subject to it or affected by it.

Recent laws on Come We Stay Legal Marriage

Come We Stay Over Six Months to Be Legal Marriage

Separation and contracts

Wife’s property in case of judicial separation-In every case of judicial separation -

Grounds of petition for divorce.

Duty of court on presentation of a petition for divorce.

1. Divorce under customary law

Divorce under civil law

Divorce under customary law

 1. Refusal to have sexual relations for no good reasons;

 6. Excessive physical cruelty;

 7. Failure of the husband to maintain his wife and children

 8. Adultery on the part of the wife

Divorce under Islamic law

There are two forms of divorce under Islamic Law

1. Extra Judicial Divorces

a. The husband must be of age;

b. He must be seen conscious alert and should not be angry;

d. He should be free from external pressures;

e. His intention to terminate the marriage must be clear.

On the part of the wife