INTRODUCTION

1.1 Introduction

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

The family is the basic component of a society organization. Marriage and the
founding of a family is a basic human right as per Article 16 of the Universal
Declaration of Human Rights.
1
Article 23 of the International Covenant on Civil
and Political Rights declares that the family is the natural and fundamental
group unit of society and is entitled to protection by society and the state.
2
It is
also the basic economic unit of society in the sense that the most productive
activities take place within the family set up. The family setup provides a
framework for the parties to have satisfactory sexual expression. It guarantees
perpetuation of society through the receiving of offspring. It provides a
framework for companionship between the members of that family.

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.
3



1
G.A Resolution 217 A(III) G.A O.R., 3
rd
Sess.
2
See Kakooza, J.M.N., Changes in Family Law, in (1968) 4(1 and 2) East African Law
Journal 11.
3
See Read, J.S., Family Law in Kenya, in MBaye, K. (ed.), Le Droit de la Famille en
Afrique Noir et a Madagascar, 1968, Paris, page 248.
1.2 Family Law
Family law gives effect to the societys values as regards the relationship
between man and woman.
4
Family law seeks to define status between the parties
in that family i.e. it defines what rights a member of the family can claim over
the other or over the others property. Altering the status of parties in the
family. A remedial role; that is it serves to protect certain weaker members of
that family e.g. children. On termination of a family relationship there are
certain members who may need protection especially economic protection. The
trend now is that not all family relationships are created by marriage ceremonies
such as cohabitation, single parents. The law has developed to recognize some
of these relationships.

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.
5


1.3 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.
6









4
See generally, Kuria, G.K., The African or Customary in Kenyan Law Today, a paper
presented at the Workshop on Conceptualising the Household: Issues of Theory Method and
Application at the Harvard Institute for International Development, 2
nd
4
th
November 1984.
5
See Kuria, Gibson Kamau, Christianity and Family Law in Kenya, in (1976) 11(1) East
African Law Journal 33 at 34. See also Read, James S., When is a Wife not a Wife? (When
shes a witness?), in (1966) 1(1-4) Journal of the Denning Law Society, 47 at 43.
6
See Read, J.S., Family Law in Kenya, in MBaye, K. (ed.), Le Droit de la Famille en
Afrique Noit et a Madagascar, 1968, Paris, page 254.
HISTORY OF FAMILY LAW IN KENYA

2.1 Introduction
The territory which is now known as Kenya: African customary law and Islamic
law. Islamic law was introduced through the trans-Indian Ocean trade between
the Arabian peninsular and the east coast of Africa, otherwise African
customary law was the original law. The colonization of Kenya saw the
establishment of statutory of marriage and divotrce which introduced principles
of English family. At about the same time the Hindu family law was introduced
after the colonial government brought in many people from India to work as
labourers during the construction of the Uganda Railway.
7
Before then however
there was some presence of persons professing the Hindu faith along the coast
since the Indian subcontinent had been trading with the east coast of Africa for
centuries.
8


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.
9
It also applied
the common law of England and principles of equity which were in force in
England at the time. It also provided for the application of African customary
law and Islamic law. In a word it provided for the application of the four
systems of family law that are in operation in the country today. These four
were African customary law, applying to Africans, Islamic law applying to
those who profess the Islamic faith irrespective of their race, Hindu customary
law applying to Asians who profess the Hindu faith and English law which
applied mainly to Europeans and to those Africans who are taken have accepted
the English way of life.
10


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

7
Derrett, J.D.M., Introduction to Modern Hindu Law, Oxford University Press, London,
1963, pages 535-546. also Kakooza, J.M.N., Changes in Family Law, in (1968) 4(1 and)
East African Law Journal 1.
8
See Singh, Chanan, Rejoinder: Hindus and Hindu Law in Kenya, in (1971) 7 (1) East
African Law Journal 69 at 71.
9
This was made under the 1890 Foreign Jurisdiction Act of England of 1890.
10
See Kuria, G.K., The African or Customary in Kenya Law Today, a paper presented at
the Workshop on Conceptualising the Household: Issues of Theory Method and Application
at the Harvard Institute for International Development, 2
nd
4
th
November 1984, pages 21,
22.
and Succession Act was enacted, the High Court, basing its decisions on Hyde
vs. Hyde and another(1866) LR 1 P & D 130, declined to entertain matrimonial
causes arising from Muslim marriages on the ground that no law said that it had
such jurisdiction.
11


The East Africa Order in Council of 1897 was clear that the family law of the
Muslims was Islamic law, for the African customary law applied, for the
African Christians it was the law applying to Christians in India,
12
while for the
Europeans it was the Indian Divorce Act of 1869, applied by the Order in
Council to Kenya, together with English statutes and the principles of the
common law and doctrines of equity in force in England as at 12
th
August
1897.
13
In 1902 the East Africa Marriage Ordinance
14
was enacted to enable
Europeans and westernized non-Europeans to contract the English type of
marriage in accordance with a law derived from English law. The statute
applied the English law of succession to such Africans and their children. The
assumption inherent in this later provision was that by marrying in the English
way the African abandoned the African way of life and totally embraced the
English culture and way of life.
15
The East African Marriage Ordinance of 1902
was amended in 1904, by the repeal of section 39 which had applied the English
law of succession to African Christians.
16
1904 also saw the promulgation of the
Native Christian Marriage Ordinance which sought to introduce to Africans a
simplified procedure of contracting an English style marriage. The formalities
followed in English law were considered too complex for the African
Christian.
17
The statute was replaced in 1931 with the African Christian
Marriage and Divorce Ordinance,
18
which dealt with aspects of marriage

11
Kuria, J.K., Religion, the Constitution and Family Law and Succession in Kenya, a
mimeo, pages 107,108.
12
See the Native Courts Regulations of 1897 made under the East Africa Order in Council of
1897.
13
See Article 11(a) of the East Africa Order in Council of 1897 and the schedule.
14
Ordinance No. 30 of 1902. This statute was a colonial office model and was intended to be
applied in Ghana, Nigeria, Malawi, Uganda and Kenya.
15
The Nigerian case of Cole vs. Cole (1898) 1 NLR 15, was based on a similar law in
colonial Nigeria and is illustrative of the then prevailing colonial thinking that the English
type of marriage was superior to the African marriage, and that the act of an African of
contracting an English style marriage indicated the Africans abandonment of his African
ways and his embrace of the English way of life.
16
See Kuria, G.K., Internal Conflict of Marriage Laws in english Speaking African
Countries, a paper presented at the World Congress of Sociology in Uppsala in August 1978,
page 21.
17
See Kuria, G.K., Internal Conflict of Marriage Laws in english Speaking African
Countries, a paper presented at the World Congress of Sociology in Uppsala in August 1978,
page 22.
18
The current Cap. 151 Laws of Kenya.
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.
19
The device of conversion was another avenue, the law governing
the celebration of English style marriages provided for the conversion of
marriage from African customary law or Islamic law marriage to English law
marriage.
20
The African Christian Marriage and Divorce Ordinance provided for
the conversion of the potentially polygamous African customary law marriages
into the monogamous English type.
21
These provisions remain in these two
statutes todate. At independence it was decided that all thse family law systems
be put at par and remain in force until a common way of life emerged when one
family law would replace them.
22


Law Applying to Africans

(a) African customary law

Insofar as the natives were concerned, the East Africa Order in Council of 1902
had limited application. It provided that cases against natives would be brought
in native courts and a Commissioner was given the power to establish and
abolish those Native Courts and to regulate their procedure as well as give
directions as to the application of native law and custom. As a result of this
power, the Commissioner made the Native Court Regulations of 1897 and what
these regulations provided was that in matters affecting the personal status of
natives, then the law of their caste or tribe insofar as it could be ascertained and
insofar as it was not repugnant to national morality could be applied. The
provisions were further modified by the Native Courts Regulations. The East
Africa Order in Council of 1902 whose main purpose was to clarify further
when customary law applied. It was provided that in all cases whether civil or
criminal in which natives were parties, the courts would be guided by native law
in so far as it was applicable and not repugnant to justice and morality or

19
See Kuria, G.K., Internal Conflict of Marriage Laws in english Speaking African
Countries, a paper presented at the World Congress of Sociology in Uppsala in August 1978,
page 22.
20
See the East African Maarriage Ordinance, sections 11 and 33.
21
See section 9 of the African Christian Marriage and Divorce Ordinance.
22
See Section 82(4) (b) of the Constitution (Act No. 5 of 1969).
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,
23
although in a number of cases they
upheld some local customs
24
and modified others. This formulation of the Order
in Council is the same formulation that we have in Section 3 of our Judicature
Act insofar as application of customary law is concerned. In areas of family
law for those natives who still practice customary law are still governed by
African Customary Law.

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.

(b) 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.

23
See Marko Kajubi vs. Kulanima Kubali (1944) 11 EACA 34 (Sir John Gray CJ).
24
See Ole Olesso vs. Nalulus ole Kidoki (1914) 5 EALR 210 (Bonham-Carter Ag. CJ)), Rex
vs. Obongo (1920) 3 ULR 31, Nyaberi vs. Nyaboga (1953) 1 CRLR) 5, Mairura vs. Anginda
(1958) 6 CRLR
Cap 151 of the laws of Kenya

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

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

Law Applying to Muslims

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

2.4 Law Applying to Hindus

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

As early as 1898 we have all these laws governing different peoples. Muslims
still continue to be governed by Muslim Law but with Hindus a number of
developments occurred which made the Hindus to adopt laws that were similar
to those found in the statues. In 1946 the Hindu Marriage, Divorce and
Succession Ordinance was enacted. This is where Hindus parted way with
Hindu Customary Law. The Act provided that in future all Hindu Marriages
were to be monogamous and the Act extended to Hindus the reliefs that are
available under the Matrimonial Act and under the subordinate Courts
separation and maintenance Act. Under orthodox Hindus, marriages can be
polygamous. The first enactment on Hindu family law came in 1946, the Hindu
Marriage, Divorce and Succession Ordinance,
25
to address two difficulties faced
by Hindus.
26
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.
27
The 1946 Ordinance sought to define the Hindu marriage and it stated
at section 3(1) that a Hindu marriage would be deemed for all purposes to be a
valid marriage. The second difficulty related to the ascertainment of the law
applicable in a particular case. On this the Ordinance laid down two principles.
The court was to apply the law and custom which would be applicable to the
person seeking relief if he were seeking relief in India.
28
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.
29
When law reforms were
introduced in India in the 1950s, the Kenya law was amended to reflect those
changes in India. The 1946 Ordinance was split into two statutes: the Hindu
Marriage and Divorce Ordinance of 1960 and the Hindu Succession Bill of
1960.
30
The Hindu Marriage and Divorce Ordinance of 1960 was a rehash of the
Indian legislation.
31



2.5 Law Applying to Europeans

The 1902 Order in Council gave the commissioner power to make laws which
would apply in the protectorate and one of the first laws that was made in 1902
was the Marriage Ordinance. This Ordinance was a law of general application
in the sense that it was not limited by race or religion and was meant to apply to
all residents in the protectorate. It provided for basically a Christian form of
marriage which was strictly monogamous and made it an offence for a person
married under customary law to contract a marriage under the ordinance or vice
versa. It was also meant to provide an avenue for the converted natives to

25
The Ordinance came into force on 14
th
August 1946.
26
See Singh, Chanan, Rejoinder: Hindus and Hindu Law in Kenya, in (1971) 7 (1) East
African Law Journal 69 at 71.
27
Because Hindu

marriages were potentially polygamous the colonial courts declined to
assume jurisdiction to grant matrimonial reliefs the way English courts did following Hyde
vs. Hyde and another (1866) LR 1 P & D 13 rule. See the decisions in Ganga Devi vs. Tulsi
Dass 9 EALR 64 and Kakar vs. Kumari 28 (2) KLR 34.
28
Section 5.
29
Section 11.
30
The government deferred action on the succession draft because it was anxuious to have a
uniform code of succession for all the races.
31
See Singh, Chanan, Rejoinder: Hindus and Hindu Law in Kenya, in (1971) 7 (1) East
African Law Journal 69 at 71, 72.
contract the Christian type of marriage and for the settlers to contract marriage.
What was important is that any African who married under the Marriage
Ordinance was supposed to have embraced the Christian way of life and
therefore distanced herself from their customary way of life. Cole v. Cole the
ruling in this case exemplified the situation of what happened if one contracted
a marriage outside the ordinance. A Nigerian couple got married according to
Christian rites under the Nigerian Marriage Ordinance. They had a son who
was mentally incapacitated and after a while the husband died. The issue then
arose as to who was to succeed the man or who was entitled to the mans
property and the mans brother argued that under Customary Law he was the
one entitled to inherit the mans property. The wife argued that since they had
married under the Marriage Ordinance they had distanced themselves from the
African way of life therefore African customary law did not apply and instead
the English Law of Succession applied and that under that English Law of
Succession she was the one entitled to inherit in her own right and as guardian
of her son. The court upheld her argument basically stating that since they had
married under the marriage ordinance the African customary law no longer
applied to them.

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

2.6 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

It still exists under the same name in our laws and its Cap 153 laws of Kenya
freedom of conscience and this includes freedom of religion and worship. Part
of that freedom and worship is found in our different family laws. He argues
that the statutory law is found on Christian norms and therefore it is the
Christians choice to marry under Christian law, Muslims choice to marry under
the Muslim Law likewise Africans were free to practice their customs under
their customs and that to legislate under one uniform law for all would be
unconstitutional.

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

2.7 Attempts to Unify the Systems

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

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

Islamic Family Law

The Constitution of Kenya preserves the application of Islamic law to family
matters where all the parties concerned are Muslims. There is also the statutory
basis for this application in the Mohammedan, Marriage, Divorce and
Succession Act
32
and the Mohammedan Marriage and Divorce Registration
Act.
33
There are large numbers of Muslims in Kenya representing different

32
Cap 156 Laws of Kenya.
33
Cap 155 Laws of Kenya.
schools of Islamic law. Majority of African Muslims are of the Shafii school of
the Sunni sect, while the non-African Muslim communities include members of
most of the Shii communities. The groups have differing rules on certain points
of family law.
34
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
35
and Muslim
36
marriages were potentially polygamous the
colonial courts declined to assume jurisdiction to grant matrimonial reliefs the
way English courts did following Hyde vs. Hyde and another(1866) LR 1 P &
D 13 rule.



The laws that are now in application in the area of family are: customary laws
of the indigenous communities; the common law which embodies the principles
of English family and Christianity; Islamic law for both Africans and Asiatic
Mohammedans; the Constitution of the Ismailis, the followers of the Aga Khan;
and Hindu law for Hindus.
37
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.
38













34
See Read, J.S., Family Law in Kenya, in MBaye, K. (ed.), Le Droit de la Famille en
Afrique Noir et a Madagascar, 1968, Paris, page 281.
35
See Ganga Devi vs. Tulsi Dass 9 EALR 64 and Kakar vs. Kumari 28 (2) KLR 34.
36
See Mohammed vs. Fatuma 6 EALR 119 and Athuman vs. Baka 7 EALR 61.
37
See Kakooza, J.M.N., Changes in Family Law, in (1968) 4(1 and 2) East African Law
Journal 1.
38
See Kakooza, J.M.N., Changes in Family Law, in (1968) 4(1 and 2) East African Law
Journal 1.
MARRIAGE

The institution of marriage is said to be a creation of morality, the moral law of
the society being made up of the ideas which members of that society have in
common about the right way to live. Indeed the association of men and women
in wedlock from time immemorial has been of great importance to society to the
extent that its regulation has always been seen as a matter of morals.
39
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.
40
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.
41
The Universal Declaration of Human Rights declares the
desire to associate with a member of the opposite sex, to marry and found a
family as basic human rights.
42
The International Covenant on Civil and Political
Rights expounds on this,
43
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

39
See Devlin, Patrick, The Enforcement of Morals, Oxford University Press, London, 1965,
pages 61, 62.
40
See Kuria, G.K., The African or Customary in Kenya Law Today, a paper presented at
the Workshop on Conceptualising the Household: Issues of Theory Method and Application
at the Harvard Institute for International Development, 2
nd
4
th
November 1984.
41
See Kakooza, J.M.N., Changes in Family Law, in (1968) 4(1 and 2) East African Law
Journal 1 at 11.
42
See Article 16.
43
See Article 23.
party in a standard form contract in terms of setting out the contents of the
marriage contract.
44
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.
45
The conventional marriage is that between a biological man and a
biological woman.
46
In African societies however there is also the woman to
woman marriage, where one woman is notionally said to be marrying
another.
47
This type of marriage does not involve sexual relations between the
women since it is essentially a device to aid a childless woman,
48
for this reason
it does not run counter to the conventional marriage, and there is really no
practical difference between it and the conventional marriage.
49


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.
50
There is the need to
meet sexual needs in the best way. It also provides security as it applies to sex
and other needs that can be guaranteed by marriage. There is the need by men
and women to prevent themselves as individuals and as a society from

44
Kuria, G.K., The African or Customary in Kenya Law Today, a paper presented at the
Workshop on Conceptualising the Household: Issues of Theory Method and Application at
the Harvard Institute for International Development, 2
nd
4
th
November 1984, page 11. Some
have argued that the marriage contract should be one where parties to it should be allowed the
freedom to negotiate its terms. On the debate on whether that liberty should be permitted see:
Weitzman, L.J., Marriage: The Status of Contract, The Free Press, 1981, and the review by
Garrison, M., of Lord Devlins The Enforcement of Morals, in (1983) 131 (4) University of
Pennsylvania Law Review, pages 1039-1062.
45
Devlin, Patrick, The Enforcement of Morals, Oxford University Press, London, 1965, page
61.
46
See Bromleys Family Law, Butterworths, London, 1976, 5
th
edition, pages 105-130. See
generally Cotran, E., Restatement of African Law: Marriage and Divorce, Kenya, Sweet &
Maxwell, London, 1968.
47
See Cotran, E., Restatement of African Law: Marriage and Divorce, Kenya, Sweet &
Maxwell, London, 1968, pages 13, 26, 63, 74, 96, 196 and 117.
48
Obi, S.N., Modern Faily Law in Southern Nigeria, Sweet & Maxwell, London, 1966, page
157.
49
Kuria, G.K., The African or Customary in Kenya Law Today, a paper presented at the
Workshop on Conceptualising the Household: Issues of Theory Method and Application at
the Harvard Institute for International Development, 2
nd
4
th
November 1984, page 11.
Kuria, G.K., The African or Customary in Kenya Law Today, a paper presented at the
Workshop on Conceptualising the Household: Issues of Theory Method and Application at
the Harvard Institute for International Development, 2
nd
4
th
November 1984, page 12.
50
Kuria, G.K. , The Role of Law in African Traditional and Christian Marriages in Kenya,
a paper delivered to the Catholic Society of the University of Nairobi at the Christian
Leadership Centre on 23
rd
November 1977, pages 6, 7 and 8.
extinction since men and women are products of seeds of men and women,
hence the need to express ones manhood or womanhood through procreation.
Human beings need a confidant with whom one shares their fears, hopes and
anxieties. Marriage also provides one with extra physical, material and
emotional support, since no one is capable of being self-reliant in a general way.
Marriage also satisfies the need to give meaning to life through having children
and thereby expressing the latent humanity or living as God or society
demands.
51
There is also the need to obtain identity with reference to a person of
the opposite sex that is by being somebodys man or woman.


The Kenyan legal system is characterized by a multiplicity of marriage laws.
52

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.
53
There is also the African Christian Marriage and
Divorce Act which lays down a simple procedure providing for marriages
between African Christians and for the conversion or monogamisation of
customary marriages into statutory marriage. An African marrying under this
statute or converting his customary marruiage under the statute also removes
himself from the operation of African customary law. The marriage ceases to be
potentially polygamous and becomes monogamous. It cannot be dissolved
extra-judicially, it for life dissoluble only by way of a valid judicial decree of
divorce. He loses the capacity to marry another during the subsistence of the
monogamous marriage contracted or upgraded or declared under the Act. The
Matrimonial Causes Act governs the consequences of the monogamous
marriages contracted under the Marriage Act and the African Christian
Marriage and Divorce Act. Generally, the marriage statutes embody English
values, and there is therefore the tendency to treat those Africans marrying

51
Kuria, G.K. , The Role of Law in African Traditional and Christian Marriages in Kenya,
a paper delivered to the Catholic Society of the University of Nairobi at the Christian
Leadership Centre on 23
rd
November 1977, pages 6, 7. See also Kuria, G.K., The African or
Customary in Kenya Law Today, a paper presented at the Workshop on Conceptualising the
Household: Issues of Theory Method and Application at the Harvard Institute for
International Development, 2
nd
4
th
November 1984, pages 2, 3, 4.
52
See Kassam, F.M., Report of the Kenya Commission on Marriage and Divorce: A
Critique,. In (1969) 2 East Africa Law Review 179 at 181. See also Kuria, Gibson Kamau,
Christianity and Family Law in Kenya, in (1976) 11(1) East African Law Journal 33 at 43;
Read, James S., When is a Wife not a Wife? (When shes a witness?), in (1966) 1(1-4)
Journal of the Denning Law Society, 47 at 53; and Cotran, E., Restatement of African Law:
Marriage and Divorce, Kenya, Sweet & Maxwell, London, 1968, Chap. 1.
53
Kamau, G., Customary Marriages between Europeans and Africans in Kenya, in (1971)
4(3) East Africa Law Review 217 at 218.
under statute as being more or civlised compared with those marrying under
customary law.
54
The Hindu Marriage and Divorce Act and the Mohammedan
Marriage, Divorce and Succession Act govern marriages of Hindus and
Muslims performed in accordance with their laws. There are a myriad of
customary laws which govern the marriage and divorce of the greater part of the
African population. These various laws differ on vital matters relating to age
requirements, consents, registration, grounds for divorce, which ultimately
creates conflicts and administrative problems. These distinctions also militate
against national integration.
55


Marriages contracted under the Marriage Act, the African Christian Marriage
and Divorce Act and the Hindu Marriage and Divorce Act are monogamous,
while the rest are potentially polygamous. The statutes providing for
monogamous matrriages in many ways resemble the English family law. In fact
the Matrimonial Causes Act is reproduction of of certain provisions of the
English Judicature Act of 1925 and the English Matrimonial Causes Act of
1837.
56
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)
57

types fill the subordinate positions. Although the law does recognize
polygamous marriages, both African customary and Islamic, they appear to
have been treated as inferior
58
to monogamous marriages.
59
In the final analysis,

54
See Kuria, Gibson Kamau, Christianity and Family Law in Kenya, in (1976) 11(1) East
African Law Journal 33 at 34. See also Read, James S., When is a Wife not a Wife? (When
shes a witness?), in (1966) 1(1-4) Journal of the Denning Law Society, 47 at 34.
55
See Kassam, F.M., Report of the Kenya Commission on Marriage and Divorce: A
Critique, in (1969) 2 East Africa Law Review 179 at 182. See also Mayambala, E. N.,
Changing the Terms of the Debate: Polygamy and the Rights of Women in Kenya and
Uganda, in (1997) 3(2) East African Journal of Peace and Human Rights 200 at 201.
56
See Carnie vs. Carnie (1966) EA 236.
57
Shia Ismailias are monogamous since their personal matters are governed by the Ismaili
Constitution, 1962, as the same has been judicially held to be applicable to them. See such
cases as Sadrudin Saleh Mohammed vs. Firozhanu Gulamhusein Bhimji (1956) 23 EACA
369 and Maleksultan vs. Sherali Jeraj (1955) EACA 142.
58
It was in the context of this supposed inferiority that the decisions in Rex vs. Amkeyo
(1917) 7 EALR 14 and Abdulreheman bin Mohammed and another vs. R (1963) EA 188,
were made, where it was held that communications between spouses of polygamous
marriages were not privileged. The court took the view that the customary marriage had all
the elements of a wife purchase and that such union cannot create the mutual trust and
confidence which existed in civilised marriages, and it could not be said that such a wife was
within the purview of the general rule that a husband or wife of the person charged is not a
competent and compellable witness for the prosecution. See also Rex vs. Mwakio Asani s/o
Mwanguku (1930) 14 KLR 133, Robin vs. R. (1929-30) 12 KLR 134, and R. vs. Toya s/o
Mamure (1932) 14 KLR 145.
the African customary law marriages occupy the lowest degree of respect under
the positive law.
60
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.
61
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.
62


Customary Law

In traditional Africa, the society was communalistic in structure and
organization, apparently founded on the notion that it was the best way then for
individuals to lead a good life, and the marriage arrangement in place was
influenced by this philosophy. To Africans marriage is the focus of existence
and everything else hinges on it.
63
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.
64
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

59
See Kassam, F.M., Report of the Kenya Commission on Marriage and Divorce: A
Critique,. In (1969) 2 East Africa Law Review 179 at 183.
60
See Gutto, S.B.O. and A.H. Khamati, Marriage Break-down and the Law of Custody and
Maintenance of Children in Kenya, a paper presented at a seminar on children and the law in
Kenya held on 13 -14 July 1979 at the University of Nairobi, at page 3. See also Ojwang J.B.,
Polygamy as a Legal and Social Institution in Kenya in (1974) 10(1) East African Law
Journal 63.
61
See Gutto, S.B.O. and A.H. Khamati, Marriage Break-down and the Law of Custody and
Maintenance of Children in Kenya, a paper presented at a seminar on children and the law in
Kenya held on 13 -14 July 1979 at the University of Nairobi, at page 2.
62
See Kassam, F.M., Report of the Kenya Commission on Marriage and Divorce: A
Critique,. In (1969) 2 East Africa Law Review 179 at 183, 184.
63
Mbiti, J.S., African Religions and Philosophies, Heinemann, London, 1969, pages 26, 133
and 210.
64
Kuria, G.K., The African or Customary in Kenya Law Today, a paper presented at the
Workshop on Conceptualising the Household: Issues of Theory Method and Application at
the Harvard Institute for International Development, 2
nd
4
th
November 1984, page 4.
a customary marriage are evidence of this. The concept of dowry or marriage
payments and parental consent, for example, strengthen the family. Members of
the mans extended family participate in the payment of dowry by contributing
to it. On the other hand members of the womans extended family are expected
to share the same once it is paid to them.
65


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.
66
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
67
or Christian
68
religious forms.
69
Judicial opinion on the African
customary law marriage has in the past also been unkind, especially during the
colonial period. The most famous negative opinion being expressed in Rex vs.
Amkeyo 1917 KLR 14, where Sir Robert Hamilton CJ said that he did not
think that it can be said that the native custom (on marriage) approximates in
any way the legal idea of marriage.

Later judicial opinion on African customary laws of marriage has been more
favourable. This could be explained on the basis of the attainment of
independence as well as the Africanisation of the bench. In Mwagiru vs.
Mwangi (1967) EA 639, Miller J
70
stated that a marriage contracted under
Kikuyu custom can result in a perfectly valid marriage provided there has been
compliance with the rules which govern such form of marriage. In Case vs.
Ruguru (1970) EA 65, the same judge observed that it is settled law that
marriages properly contracted under customary law are of legal effect and
matters pertaining to promises and preparations are cognizable by the courts
depending on the circumstances.
71
Miller J, in William Muli vs. Francis Kithuka

65
Kuria, G.K. , The Role of Law in African Traditional and Christian Marriages in Kenya,
a paper delivered to the Catholic Society of the University of Nairobi at the Christian
Leadership Centre on 23
rd
November 1977, page 7.
66
See See Read, James S., When is a Wife not a Wife? (When shes a witness?), in (1966)
1(1-4) Journal of the Denning Law Society, 47 at 54. See also Read, J.S., Family Law in
Kenya, in MBaye, K. (ed.), Le Droit de la Famille en Afrique Noir et a Madagascar, 1968,
Paris, 243 at 245 and 253.
67
Cap 156, Section 6.
68
Cap 151, Section 9.
69
See Gutto, S.B.O. and A.H. Khamati, Marriage Break-down and the Law of Custody and
Maintenance of Children in Kenya, a paper presented at a seminar on children and the law in
Kenya held on 13 -14 July 1979 at the University of Nairobi, at page 2.
70
The judge was a black man from Guyana.
71
See Kamau, G.K., Customary Marriages between Europeans and Africans in Kenya.
(1971) 4 East Africa Law Review 217.
(1971) KHCD 118, strongly observed that it was wholly erroneous to entertain
the notion that customary law marriages are inferior to those contracted under
statute.


African traditional marriages are regulated by customary law whose legal bases
for application are to be found in several statutory provisions,
72
including
section 82(4) (b) of the Constitution, section 3(2) of the Judicature Act and the
Magistrates Courts Act. The Constitution of Kenya theoretically embodies the
highest legal norms and standards in the state to which all laws must conform,
provides general recognition of customary laws.
73
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.
74


The legality of African customary law marriages is recognized by the Judicature
Act
75
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.
76



72
See Mayambala, E. N., Changing the Terms of the Debate: Polygamy and the Rights of
Women in Kenya and Uganda, in (1997) 3(2) East African Journal of Peace and Human
Rights 200 at 202.
73
Section 82(4)(c).
74
See Gutto, S.B.O. and A.H. Khamati, Marriage Break-down and the Law of Custody and
Maintenance of Children in Kenya, a paper presented at a seminar on children and the law in
Kenya held on 13 -14 July 1979 at the University of Nairobi, at page 2.
75
Cap 8 Laws of Kenya.
76
See Gutto, S.B.O. and A.H. Khamati, Marriage Break-down and the Law of Custody and
Maintenance of Children in Kenya, a paper presented at a seminar on children and the law in
Kenya held on 13 -14 July 1979 at the University of Nairobi, at page 3. Compare with
Mayambala, E. N., Changing the Terms of the Debate: Polygamy and the Rights of Women
in Kenya and Uganda, in (1997) 3(2) East African Journal of Peace and Human Rights 200
at 203, who holds the opinion that section 3 of the Judicature Act makes it mandatory, where
the parties are Africans, for the courts to apply African customary law provided the same is
not contrary to any written law, common law, doctrines of equity and is not repugnant to
natural justice.
The Magistrates Courts Act
77
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
78
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.
79


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.
80
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.
81


It bears repeating that there is no legislation directly concerned with African
customary marriages, either on its content and substance or on its procedures.
82

The customary laws of all the nationalities in Kenya have been documented in a
Restatement of the law, the famous Restatement of African Law, Kenya,
Volume 1: The Law of Marriage and Divorce by Eugene Cotran.
83
The

77
Cap 10 Laws of Kenya.
78
Cap 80 Laws of Kenya.
79
See also Sections 59, 60 and 127 of the Evidence Act.
80
See also Mayambala, E. N., Changing the Terms of the Debate: Polygamy and the Rights
of Women in Kenya and Uganda, in (1997) 3(2) East African Journal of Peace and Human
Rights 200 at 203.
81
See Gutto, S.B.O. and A.H. Khamati, Marriage Break-down and the Law of Custody and
Maintenance of Children in Kenya, a paper presented at a seminar on children and the law in
Kenya held on 13 -14 July 1979 at the University of Nairobi, at page 3.
82
Tanzania has enacted much of the customary laws in that country in the Declarations of
Local Customary Law, 1963 and 1964.
83
1968, London, Sweet & Maxwell. The Restatement is still believed to be a fair
representation of customary law in Kenya despite having been compiled in the 1960s.
However, due to the flexibility and dynamism of customary law the revision of the
Restatement is overdue.
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.
84
The courts also take judicial notice of known
customary law rules,
85
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.
86


English Law

The Kenyan law equates the English type of marriage to a Christian marriage.
87

This is so because the English law of marriage has its foundation in Christianity.
The English society derives its morality from Christianity,
88
although since the
start of the 19
th
century there has been a movement towards secularism.
89
The
English institution of marriage therefore bears both Christian and secular
characteristics. These characteristics were defined in Hyde vs. Hyde and
Woodmanse (1866) 1 LR 1 P & D 1230 where Lord Penzance said I conceive
that marriage as understood in Christendom maybe defined as the voluntary
union for life of one man and one woman to the exclusion of all others. This
definition has been adopted in Section 2 of the Matrimonial Causes Act to
govern the marriages contracted under the Marriage Act and the African
Christian Marriage and Divorce Act.
90
This would mean that divorce and other
matrimonial remedies based on English law, but provided under Kenyan are not
available except for spouses married under statute or for persons who marry
abroad under a system of monogamous marriage. It is noteworthy that Section 2
of the Matrimonial Causes Act applies the definition in Hyde vs. Hyde and
Woodmanse (1866) 1 LR 1 P & D 1230 to the Matrimonial Causes Act only.
91


84
The Restatement was applied in Otieno vs. Ougo Nairobi CACA No. 31 of 1987.
85
See Kimani vs. Gikanga (1970) EA 735.
86
See Mayambala, E. N., Changing the Terms of the Debate: Polygamy and the Rights of
Women in Kenya and Uganda, in (1997) 3(2) East African Journal of Peace and Human
Rights 200 at 203. See also Kimani vs. Gikanga (1970) EA 735.
87
See Kuria, Gibson Kamau, Christianity and Family Law in Kenya, in (1976) 11(1) East
African Law Journal 33 at 34. See also Read, James S., When is a Wife not a Wife? (When
shes a witness?), in (1966) 1(1-4) Journal of the Denning Law Society, 47 at 43-46.
88
Devlin, P., The Enforcement of Morals, Oxford University Press, London, 1965, page 62.
89
See Kuria, G.K., Internal Conflict of Laws in English Speaking African Countries, a
paper presented at the World Congress of Sociology in Uppsala in August 1978, page 6.
90
See Kuria, Gibson Kamau, Christianity and Family Law in Kenya, in (1976) 11(1) East
African Law Journal 33 at 34. See also Read, James S., When is a Wife not a Wife? (When
shes a witness?), in (1966) 1(1-4) Journal of the Denning Law Society, 47 at 57.
91
See Read, James s., When is a Wife not a Wife? (When shes a witness?), in (1966) 1(1-
4) Journal of the Denning Law Society, 47 at 57.

The English type of marriage is a voluntary union based on consent. It is
essentially monogamous. Before secularism developed the dominant theology
was that the Christian marriage is monogamous. The modern explanation for
monogamy is that it is in keeping with human nature that expresses itself
through todays equality of the sexes.
92
It is at also meant to be for life, which
means that it can only be dissolved by death. This notion that marriage is for life
has its origin in Christianity. Since the introduction of secularism into personal
law matters the expression for life means that the parties must have intended
marriage to be a permanent as opposed to a temporary union.
93
In Nachimson vs.
Nachimson (1930) P 217, it was held that a marriage is still for life even if it can
be dissolved easily. What is important is that it should be intended to be for life
when it is entered into.

The English common law is not clear on the main purposes of the English law
marriage. The English courts have given differing reasons and explanations for
this type of marriage. In D.E. vs. A.G. 163 ER 1039 and Baxter vs. Baxter
(1948) AC 274, for example, the court appeared to treat enjoyment of sex and
companionship as the main purposes of the English marriage. On the other hand
in Cowen vs. Cowen (1945) 2 All ER 197, Corbett vs. Corbett (1970) 2 WLR
1306 and Re D (An Infant) (1976) 2 WLR 279, the court took the view that
procreation is the main objective of marriage. The differences reflected in these
approaches are indicative of the possibly antagonistic secular, Christian and
humanistic attitudes towards marriage.
94


The English law is hostile to polygamy, which is common among societies in
Asia and Africa.
95
This hostility is displayed openly in the decisions emanating

92
See Kuria, G.K., Internal Conflict of Laws in English Speaking African Countries, a paper
presented at the World Congress of Sociology in Uppsala in August 1978, page 6.
93
Kuria, G.K. , The Role of Law in African Traditional and Christian Marriages in Kenya,
a paper delivered to the Catholic Society of the University of Nairobi at the Christian
Leadership Centre on 23
rd
November 1977, page 11.
94
Kuria, G.K.., Internal Conflict of Laws in English Speaking African Countries, a paper
presented at the World Congress of Sociology in Uppsala in August 1978, page 6.
95
See the remarks of Sir Robert Hamilton, CJ, in Rex vs. Amkeyo 1917 KLR 14. Indeed, there
has been considerable debate, especially amongst English legal scholars, on the issue of
whether or not a polygamous marriage is really a marriage. According to John Austin, in
Lectures on Jurisprudence, 5
th
ed., revised by Campbell, R., 1885, London, John Murray, and
his followers, a custom does not have the character of law and therefore an institution
founded on it, like a polygamous marriage, cannot be seen as a legal institution. James Read
in Read, J.S., Family Law in Kenya, in MBaye, K. (ed.), Le Droit de la Famille en Afrique
Noir et a Madagascar, 1968, Paris, 243; Sir Paul Vinogradoff in Sir Paul Vinogradoff in
Outlines of Historical Jurisprudence, 1920, Vol.1, 167 quoted in Phillips, A., Introductory
Essay, in Phillips, A. and Morris, H.F., Marriage Laws in Africa, 1971, London , Oxford
University Press; and Cotran, E., The place and Future of Customary Law in East Africa, in
from the English courts where polygamous marriages came up for
consideration.
96
In Hyde vs. Hyde and Woodmanse (1866) 1 LR 1 P & D 1230,
the court declared that it had no jurisdiction to grant matrimonial relief in a
potentially polygamous marriage contracted in the United States of America. In
the matter the petitioner was a Mormon, whose faith recognized polygamy, his
marriage to the respondent was therefore polygamous.
97
In Re Bethel (1888) 38
ChD 220, the court declined to treat as a marriage for the purpose of succession
a marriage union contracted by an Englishman and an African woman in
accordance with African customary law since under that law polygamy is
allowed.
98
In Baindail vs. Baindail (1946) P 122, the court recognized a
potentially polygamous marriage only for the purpose of enabling the English
woman to obtain a decree of nullity of marriage where she had purported to
marry a man whose personal law allowed polygamy.
99
The latter decision and
others made around that time postulate the recognition of polygamous marriages
by English law for a few limited purposes.
100
These latter cases represent the
modern position where such marriages are recognized for certain purposes but
not for others.
101


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.
102
There really is no law which can be said to be truly
Christian, or applying exclusively to Christians, whether African, European or
Asian. The law for those Kenyan redisents who consider themselves to be

East Africa Law Today, London, the British Institute of International and Comparative Law,
Commonwealth Law Series No. 5, 1966, 89, 90; all strongly take the view that polygamous
marriages are legal.
96
See Bartholomew, G.W., Polygamous Marriages, in (1952) 15 Modern Law Review 37.
and Hartley, T.C., Polygamy and Social Policy, in (1969) 32 Modern Law Review155.
97
The rule in Hyde vs. Hyde and Woodmanse (1866) 1 LR 1 P & D 1230 was reiterated in
England in the case of a Ghanaian customary law marriage in Sowa vs. Sowa (1961) P. 80;
(1961) 1 All ER 683; (1961) 2 WLR 313.
98
See also Harvey vs. Farnie (1880) 6 PD 35.
99
See also Srinivasan vs. Srinivasan (1946) P. 67; Mehta vs. Mehta (1945) 2 Al ER 691; the
Sinha Peerage Case (1946) 1 All ER 348.
100
See Ojwang J.B., Polgamy as a Legal and Social Institution in Kenya in (1974) 10(1)
East African Law Journal 63 at 68.
101
See Read, James S., When is a Wife not a Wife? (When shes a witness?), in (1966) 1(1-
4) Journal of the Denning Law Society, 47 at 57, 58.
102
Kuria, G.K. , The Role of Law in African Traditional and Christian Marriages in Kenya,
a paper delivered to the Catholic Society of the University of Nairobi at the Christian
Leadership Centre on 23
rd
November 1977, page 11. See also Ojwang J.B., Polgamy as a
Legal and Social Institution in Kenya in (1974) 10(1) East African Law Journal 63 at 67.
Christians is English law.
103
The Kenyan law can be said to be Christian in only
two senses. It permits Christians to marry in accordance with their beliefs under
the Marriage Act or under the African Christian Marriage and Divorce Act.
Once the marriage is contracted Christianity is not allowed under the legislation
to dictate the content of the marriage. The legislation, especially the Marriage
Act has sanctions that force Africans to retain the monogamous nature of the
marriage celebrated. The issue really is whether marrying under statute
Christianizes the marriage or it merely anglicizes it by bringing oneself under
the realm of the English family law.
104


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.
105
Under section 49
of the Marriage Act it is an offence for any person married in accordance with
Mohammedan law to contract a civil marriage under the Marriage Act to any
person other than the person with whom such Mohammedan marriage is
contracted.
106


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.
107
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.
108
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.
109
In the

103
Kuria, G.K., The Role of Law in African Traditional and Christian Marriages in Kenya,
a paper delivered to the Catholic Society of the University of Nairobi at the Christian
Leadership Centre on 23
rd
November 1977, page 13.
104
Ndulo, Muna, Bigamy and an African Society in (1974) Zambia Law Journal 131,132.
105
See section 3.
106
See Mayambala, E. N., Changing the Terms of the Debate: Polygamy and the Rights of
Women in Kenya and Uganda, in (1997) 3(2) East African Journal of Peace and Human
Rights 200 at 203.
107
Fatima Binti bin Salim Bakhshuwen vs. Mohamed bin Salim Bakhshuwen (1949) 16
EACA 11, see judgement of Nihill CJ at page 13.
108
See Sawyerr, G.F.A., The Application of Muslim Law in Kenya: A Brief Note, in (1968)
1(3) East Africa Law Review 285.
109
See Sawyerr, G.F.A., The Application of Muslim Law in Kenya: A Brief Note, in (1968)
1(3) East Africa Law Review 285 at 293.
Kadhis courts the applicable law is
110
and has always been in practice Muslim
law, but the law to be applied by the superior courts is not well settled.
111


The difficulty faced by Kenyan courts in that respect manifests itself in Fatima
Binti bin Salim Bakhshuwen vs. Mohamed bin Salim Bakhshuwen (1949) 16
EACA 11 and Shallo vs. Maryam (1967) EA 409 (Harris J).
112
In Fatima Binti
bin Salim Bakhshuwen vs. Mohamed bin Salim Bakhshuwen (1949) 16 EACA
11, the issue touched on the validity of a wakf in Kenya. The dispute was
litigated up to the Privy Council, where the wakf was upheld on the basis that
Islamic law in East Africa is the same as in India where the institution of wakf is
recognized. The Kenyan law was at the time silent on its legality in Kenya and
there was also insufficient authority on how to apply Muslim law to it. In Shallo
vs. Maryam (1967) EA 409 (Harris J), the issue was the applicability of the
principle of the presumption of benami under Muslim law in Kenya. The court
held that the benami principle applied in Kenya, and, following Fatima Binti bin
Salim Bakhshuwen vs. Mohamed bin Salim Bakhshuwen (1949) 16 EACA 11,
stated that the principle applies in Kenya as it applies between Muslims in India,
which appears to suggest that rules of Muslim law in India are binding on
Kenyan courts. The court observed that the effect of the transaction, the subject
of the dispute before the court, was not covered by the existing laws, including
any written law in force in Kenya.
113



110
According to the Kadhis Courts Act (Cap. 11 Laws of Kenya), sections 5 and 6.
111
See Sawyerr, G.F.A., The Application of Muslim Law in Kenya: A Brief Note, in (1968)
1(3) East Africa Law Review 285.
112
See also Anarali Museraza vs. Mohammedali Naserali Jiwa (1966) EA 117 and Mussa
Ayoob vs. Maleksultan Ayoob (1967) EA 416 and (1968) EA 72.
113
Sawyerr, in Sawyerr, G.F.A., The Application of Muslim Law in Kenya: A Brief Note,
in (1968) 1(3) East Africa Law Review 285 at 290, is of the view that the court, under the
statutory scheme for the application of law, should have looked at the common law, equity
and the English statutes of general application, which would have led it to apply the
principles of English private international law under which the law governing matters of land
is the law of the place where the land is situate, the lex situs, in the instant case being Islamic
law, which would have led to the conclusion that the doctrine of benami formed part of the
Muslim law of Mombasa. There is judicial precedent for this approach set in the Privy
Councils decision in the Zanzibar case of Secretary of State for Foreign Affairs vs.
Charlesworth Pilling and another (1901) AC 373 and in the Kenyan case of Said bin Seif vs.
Shariff Mohammed Shastry (1938) 19 KLR 9, among others. Sawyerr also argues that the
reliance by the court on the principle set by the Privy Council in Fatima Binti bin Salim
Bakhshuwen vs. Mohamed bin Salim Bakhshuwen (1949) 16 EACA 11, should have forced
the court to consider the universality of the benami doctrine as a Muslim custom, as the court
did in Fatima Binti bin Salim Bakhshuwen vs. Mohamed bin Salim Bakhshuwen (1949) 16
EACA 11 with regard to the wakf.