Family Law: Class Notes University of Nairobi

FAMILY LAW
Class Notes
University of Nairobi
INTRODUCTION
1. Family as an institution
2. History of the Family as an Institution
3. Historical Backgrounds of Family law in Kenya.
Family as an Institution:
In one social context a family may refer to a man and a woman who share a
common household. In another, it is defined as all persons who share blood
relations. In others, it is defined as all persons who share a household. In others
still it means all the members of a household, including parents and children
with perhaps other relations, lodgers and even servants.
Legally, the term family is a restricted concept. There are certain formal pre-
requisites that have to be met and the main one is a marriage ceremony. In law a
family is created when families enter into a legally recognised 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.
1. It is the basic component of a society organisation; Article 16 of the

Universal Declaration of Human Rights.
2. It is the basic economic unit of society that is most productive activities
take place within the family set up .
3. The family setup provides for a framework for the parties to have
satisfactory sexual expression.
4. It guarantees perpetuation of society through the receiving of offspring.
5. It provides a framework for companionship between the members of
that family.
THE OBJECTS OF FAMILY LAW

1. It seeks to define status between the parties in that family i.e. it defines
what rights a member of the family can claim over the other or over
the other’s property. Altering the status of parties in the family.
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2. 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. Note. The trend now is that not all family relationships are
created by marriage ceremonies such as cohabitation, single parents.
The law has developed to recognise some of these relationships.
Major functions of family law
HISTORY OF THE FAMILY AS AN INSTITUTION.
The trend now is that not all family relationships are actually created inside a
marriage relationship. Some of the developments in law have been to deal with
these issues, under common law and equity there is recognition given to
cohabitees. Children born out of marriage also acquire.
Family law as an institution also has a history.
Engels: The origins of the family, Private Property and the state. In this
book the author states that the institution of the family has not existed for all
times and they say that relating to the institution of the family there was an
ancient primitive stage of promiscuity where there were no restrictions as
regarding sexual relations and it was a free for all. The authors have met
criticism for alleging this fact but this points to an earlier stage when there was
no family existing. They then say that the family developed along four main
stages
1. Consanguine Family;
2. Punuluan Family
3. Pairing Family
4. Monogamous Family
Consanguine and Punuluan Families are based on group marriages and the
pairing and monogamous family and at this stage the society tries to disassociate
itself from group marriages.
Engels says that marriage groups were separated according to generations so

that you find that one generation consisted of husbands and wives who could
relate so long as they belonged to the same generation. Parents and child could
not relate. Remnants of this type of marriage at the time he was writing in the
early 19th Century could still be found among some Hawaiian tribes.
In the Punuluan stage brother and sister were excluded from sexual relations. In
the consanguine family so long as you belonged to the same generation you
could have sexual relations. The Punuluan type of society was found among
Indian tribe called the Punulua.
These forms of group marriage it was uncertain as to who the father of any
particular child was but it was certain who the mother was so that group
marriages were the origin of tracing descent through the mother’s line so that we
have matriarchy being the form of tracing descent. The author again says that
societies that are matriarchal originated from here.
PAIRING FAMILY
The essence of the pairing family is that one man lives with one woman but the
relationship is such that polygamy and occasional infidelity on the part of the
man is permissible. However the woman is required to be strictly faithful and
adultery on her part is strictly punished. To some people this is where
subjugation of women starts.
Restrictions on sexual relations are extended so that there is a progressive stage

within which conjugal relations can take place. In the pairing family conjugal
relations are more restricted and women are restricted only to their husbands
who cannot be their brother.
MONOGAMOUS FAMILY
This is different from the pairing family in two ways

1. There is a much greater stress that is given to the marriage institution,
in the pairing family dissolution of marriage is relatively easy but in a
monogamous family a marriage cannot be dissolved unless some
formalities are followed. The rights to conjugal relations are extended
to the wife because it is not only the wife who has to be faithful but the
man as well. The authors of this text say that the main purpose of the
rise of the monogamous family is to produce children of undisputed
paternity and this is important for purposes of inheritance. That is the
linkage that the authors make in the rise of family and private
property ownership. Those who then own property become the rulers
and that is the link between family, property ownership and the state.
The main reason that this history becomes relevant is when we look at the
conflicts that, it is argued that when we came into contact with the Europeans,
our predominant form of family was Pairing Family. In some societies we still
were in the Punuluan. That means that the Europeans found us at pairing and
imposed laws which were applicable to the monogamous family and therefore
we find tension existing between the two different systems of law right from the
very beginning because they were at different levels of development, they
reflected different values. Those tensions have existed and that is the reason
why harmonisation of the different family law situations appears to be difficult.
HISTORICAL DEVELOPMENT OF FAMILY LAWS IN KENYA
The studying point in family law is the 1897 East Africa Order in Council which
applied certain Indian and British Acts of Parliament to the East African
Protectorate. It also applied the common law of England which was in force at
the time. Insofar as the natives were concerned the Order in Council had limited
application it provided that cases against natives would be brought in native
courts 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. For those natives who were Muslims, Islamic law would apply to them
and this was with regard to matters affecting personal status.
This same formulation is what we basically find in our judicature Act insofar as
the application of customary law is concerned. The provisions were further
modified but the origins are Native Courts Regulations.
There were also two other communities in Kenya at the time, the British
Colonisers and the Indians who had been brought in as labour and the issue here
was whether for those groups they applied Indian Act or British Laws and
common law rules 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.
For example the Indian Succession Act of 1865, this was one of the Indian
applied Acts under the 1897 Order in Council. In India it had been expressly
stated that that particular Act did not apply to succession matters of Hindus in
which case in India they applied their customary succession laws in matters of
succession. When this particular Act was applied in Kenya there was no such
exclusion with regard to the Kenya Hindus. There were also issues as regards
marriage and divorce and they applied English Marriage Laws. There was a bit
of problem with regard to the Hindus in Kenya especially between 1897 and 1898
when it was stated that the Indian Succession Act did not apply to Hindus and
that they were to be governed by their own customary law. For those Hindus
who had converted to Christianity, two Acts were passed to cater for their
succession, the Hindu Wills Act and the Probate and Administration Act of India,
the assumption was that the orthodox Hindus applied their customary law in
matters of succession.
As early as 1898 we have all these laws governing different peoples. In 1902 we
got the East Africa Order in Council of 1902 whose main purpose was to clarify
further when customary law applied. It was stated that in all cases whether civil
or criminal in which natives were parties, the courts would be guided by native
law in so far as it was applicable and not repugnant to justice and morality or
inconsistent with any law made in the protectorate. This formulation of the
Order in Council is the same formulation that we have in Section 3 of our
Judicature Act insofar as application of customary law is concerned. In areas of
family law for those natives who still practice customary law are still governed
by African Customary Law. 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.
The 1902 Order in Council gave the commissioner power to make laws which
would apply in the protectorate and one of the first laws that was made in 1902
was the Marriage Ordinance. This Ordinance was a law of general application in
the sense that it was not limited by race or religion and was meant to apply to all
residents in the protectorate. It provided for basically a Christian form of
marriage which was strictly monogamous and made it an offence for a person
married under customary law to contract a marriage under the ordinance or vice
versa. It was also meant to provide an avenue for the converted natives to
contract the Christian type of marriage and for the settlers to contract marriage.
What was important is that any African who married under the Marriage
Ordinance was supposed to have embraced the Christian way of life and
therefore distanced herself from their customary way of life. Please look at 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
man’s property and the man’s brother argued that under Customary Law he was
the one entitled to inherit the man’s property. The wife argued that since they
had married under the Marriage Ordinance they had distanced themselves from
the African way of life therefore African customary law did not apply and
instead the English Law of Succession applied and that under that English Law
of Succession she was the one entitled to inherit in her own right and as guardian
of her son. The court upheld her argument basically stating that since they had
married under the marriage ordinance the African customary law no longer
applied to them.
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.
THE NATIVE CHRISTIAN MARRIAGE ORDINANCE IN 1904
The Native Christian Marriage Ordinance applied only to the marriage of

Christian applicants. It was supposed to supplement the marriage ordinance
and was intended to relieve the Africans of the need to comply with the
formalities laid down in the marriage ordinance. It only applied to Africans who
professed Christianity and just like marriage ordinance marriage under this Act
was strictly monogamous.
This Act also provided some protection to widows in the sense that widows who
had been married under the ordinance were protected from being inherited as
was the case in customary law. That is they could refuse to subject themselves to
the subject of widows inheritance. The marriage had to be celebrated by a
church minister and before the church minister did this he had to satisfy himself
that the parties were Christians.
The native marriage Christian ordinance was replaced in 1891 with the African
Christian Marriage and Divorce Act, Cap 151 of the laws of Kenya.
THE ENACTMENT OF THE DIVORCE ORDINANCE
This was based on the Indian Divorce Act of 1869 which was one of the Acts
applied by the 1897 Order in Council. It provided or afforded relief only in
respect to monogamous marriages. This is still the position to the present day. It
was replaced by the matrimonial Causes Act in 1941.
In 1928 we also have additional relieve being accorded by the separation Courts
(Separation & Maintenance Ordinance) which was limited to monogamous
marriages. It still exists under the same name in our laws and its Cap 153. 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.
In 1906 the Mohammedan Marriage & Divorce Registration Ordinance was

introduced to provide for registration of Islamic Marriages and Divorces. Please
note that it only provides for registration of marriage or divorce. The Act is
basically procedural and not substantive.
In 1946 we have the Hindu Marriage Divorce and Succession Ordinance being
enacted. This is where Hindus parted way with Hindu Customary Law, the Act
provided that in future all Hindu Marriages were required 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 CONSTITUTIONAL BASIS FOR APPLICATION OF DIFFERENT LAW
SYSTEMS.
One of the arguments which was 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
1. 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;
2. The Kenyan constitution guarantees a right to freedom of conscience
and this includes freedom of religion and worship. Part of that
freedom and worship is found in our different family laws. He argues
that the statutory law is found on Christian norms and therefore it is
the Christian’s choice to marry under Christian law, Muslims choice to
marry under the Muslim Law likewise Africans were free to practice
their customs under their customs and that to legislate under one
uniform law for all would be unconstitutional.
Under the 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.
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.
SOME PROBLEMS OCCASSIONED BY MULTIPLICITY OF FAMILY LAWS
1. Continued application of English Family Law;
2. Change of Family law;
3. Conflicts – internal conflicts between different family law systems.
CONTINUED APPLICATION OF ENGLISH FAMILY LAW
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.
This is in 3 ways
a. Continued application of common law in form of common law
presumptions which still apply to Kenya, e.g. Common Law Rights of
a wife to pledge the husband’s credit. This has been applied in Kenya
in a number of cases Patterson v. Nanyuki General Stores, Ramji Dass
Co. v. McDonald
The presumption is that when a wife acquires goods on credit, she is deemed to
be acting as the husband’s agent and the husband will be liable to pay.
In Ramji Dass it was stated that this presumption existed even when the wife and
husband were not living together.
b. Presumption of Advancement: This normally arises in a family

relationship when a family member transfers property to another by way
of a gift. The issue arises as to whether the beneficial interest in that
property has been transferred to the other person which is what is known
as the advancement when the property has been wholly transferred to the
other person or whether that other person holds the property in trust for
the person who has given it. Is there an advancement resulting in a trust?
In common law the presumption does exist if it can be shown that the
intention was to transfer the beneficial interest then there is advancement.
There is authority to the effect that the presumption applies in Kenya, in Shallo v.
Maryam, Bishen Singh v. Mohinder Singh, Sarah Wanjiku Mutiso V. Gideon
Mutiso
In the case of Wanjiku v. Mutiso [1988] Wanjiku and Mutiso were husband and
wife. In 1967, during the course of their marriage, Mutiso acquired a farm
through two loans, both of which were secured by charges on the farm. Mutiso
was a Member of Parliament but was jailed for 9 and a half years in 1971 for
sedition. Mutiso fell into arrears in mortgage payments. Mutiso made out a
power of attorney in favour of the wife but he was subsequently obliged to
transfer the farm into her sole name. He executed a deed of gift to that effect.
Subsequently the parties grew apart and when Mutiso was released they were
unable to resume their married life together. Mutiso therefore filed suit claiming
that his wife held the property as his trustee and she should transfer the same
back. The issues that arose for consideration were (1) whether the deed of gift
was void; (2) whether there was an express trust in favour of the husband; (3)
whether, in the absence of an express trust, a resulting trust could be applied.
The court ruled in favour of Mutiso and the wife appealed.

It was held
1. While the husband did not clearly plead resulting trust, the facts of the
case and the plea of ‘trust’ effectively referred to a resulting trust.
2. There was no express trust in this case because the transfer was
specific and expressly by way of gift.
3. where property is transferred to another as a gift with the intention
that the latter hold it as trustee for the former, a resulting trust may be
implied.
4. The presumption of advancement should only be made so as to accord
with the social conditions in Kenya and to conform to the most likely
intentions of the spouses. In this case, the strength of the presumption
would be much diminished. There was sufficient rebuttal evidence
that it was not the husband’s intention to make an absolute gift to the
wife. A constructive trust would therefore be imposed to prevent the
wife from taking fraudulent advantage of her husband.
The Appeal was dismissed.
c. Presumption of Marriage: This arises where a man and woman cohabit

and call themselves out as man and wife. Under this presumption they
will be deemed to be married even if they have not undergone any formal
marriage ceremony. Family law is also trying to incorporate certain
situations which do not fall within the family threshold and this is one of
them. Where parties have not met legal requisites to be called man and
wife. This presumption has been applied to the Kenyan situation with
regard to this assumption the Kenyan courts have stated that this
presumption existed under African Customary Law.
Wanjiku Yawe v. Public Trustee,
Peter Hinga v. Mary Wanjiku and
R. V Peter s/o Mikhayo
Charles Manjani v. Rosemary Moraa
In Wanjiku Yawe the court found that this presumption can also be found under
African Customary Law in R v. Peter s/o Mikhayo the interesting issue was that
of the period of cohabitation, for how long should you cohabit for this
presumption to come into place? Is it one year or 10 months?
In Peter s/o Mikhayo, the accused cohabited with a lady for a period of between 4
and 8 months, then one day he found his lady performing a sexual act in the
bush with a man and proceeded to kill the man. In his defence on charge of
murder, he said that the lady was his wife and he had been provoked to kill the
man. The court had to consider whether that period of cohabitation was long
enough to trigger a presumption of marriage. Again this is one of the case relied
on customary law and it held that under Customary law, that period was enough
and in fact stated that under customary law, the moment you start cohabiting the
presumption is triggered.
In Charles Manjani v Rosemary Moraa the presumption was said to apply even
where the wife had previously been married to another man, it was held that the
presumption would apply and the first marriage was dissolved during
cohabitation but by the time cohabitation started it had not been legally resolved.
MARRIED WOMEN’S PROPERTY ACT OF 1882
An English Act that still applies in Kenya and is the principle law that applies
when apportioning matrimonial property. In I v. I and in Antony Karanja v.
Karanja
In I v I [1970] this is the first reported decision of the Kenyan High Court where
the Married Women’s Property Act (MWPA) of England was held to apply in
Kenya. The court also considered various English authorities and made a
finding on the presumption of advancement.
The husband in this case had acquired a property in England from his earnings
and had it registered in the joint names of the spouses. The house was
subsequently sold and most of the proceeds used to purchase a house in Kenya
which was transferred into the husband’s name. The wife had expected that the
subsequent property would go into their joint names.
The question before the court was whether the Married Women’s Property Act of
1882 of England (MWPA) would apply in Kenya. Further, whether the
presumption of advancement to the wife as a result of the initial transfer to
herself of a half-share had been rebutted.
Held:
1. The MWPA was a statute of general application in England on 12

August 1897. It would therefore apply in Kenya so far as the
circumstances of Kenya and its inhabitants permit. The MWPA would
apply in priority to customary law. Judicature Act (Cap 8) section 3
considered.
2. The presumption of advancement may be rebutted where property
was acquired for the joint use of the spouses. The presumption that
the property was conveyed to the wife for her own use is however not
rebutted if the transfer was effected to defeat creditors.
3. In this case, there was a post-nuptial settlement between the parties in
relation to the property of the marriage. The word ‘settlement’ should
be given a wide construction. Hence, the court has power under
section 28 of the Matrimonial Causes Act (K), which is applicable in
this case.
4. The husband in this case had not shown any reason for variation of the
prenuptial settlement between the spouses.
In Karanja v. Karanja during the course of their marriage, the parties acquired
several properties which were all registered in the name of the husband. One
property was acquired from money supplied by the wife while the other
properties were acquired with her direct or indirect contribution. The court
considered whether customary law would operate to disqualify any imputation
of trust in favour of a married woman, especially one in salaried employment.
Held:
1. The Married Women’s Property Act is applicable to Kenya, and
customary law is subject to any written law.
2. Even without power to transfer property, the court has power under
the MWPA to grant declarations of ownership of property. In cases
where the property was acquired as a joint venture, it will be regarded
as belonging to the spouses jointly no matter in whose name the
property stands.
3. The absence of an agreement or intention that the contributing spouse
share beneficially in the property does not exclude the imputation of
such an intention. This will depend on the law of trust, which will not
distinguish between direct and indirect contribution.
4. Where an African husband and wife are in salaried employment, the
imputation of a trust cannot be rejected outright. This implication
would arise where the wife is contributing indirectly through
payments for household and other expenses which the husband would
otherwise have had to pay.
5. In this case, the husband held the immovable properties in dispute in
trust for himself and his wife in proportions of two to one respectively.
However, it would not be equitable to order sale or possession of the
Karen property since the husband was residing there with his new
family.
The final decision of the court to award one-third beneficial interest in the
properties to the wife is commendable.
The Act provides that a married woman is capable of acquiring, owning and
disposing of property as her own separate property and the history to this Act is
that under English Law women could not hold separate property. This act
liberated married women who can now own and dispose off their own property.
Registration by Reference
1. Under the Matrimonial Causes Act Section 3 it provides that the law
that is to be applied in Matrimonial proceedings is that which applies
in the High Court of Justice of England. This provision exists in our
law so when we draft our pleadings in matrimonial and divorce cases
we have to go back to the proceedings in England to see how they do it.
2. Section 35 of the Marriage Act which provides that no marriage will be

valid if the parties are within prohibited degrees of affinity according
to the law of England. Again we go back to English law to find out
what are the degrees of affinity and then find out who cannot marry
who in terms of relations.
A major problem is what happens when a law undergoes subsequent changes,

do we adopt the changes wholesale? The perfect example is in divorce law, the
divorce law underwent major reform in 1970 e.g. when it comes to divorce you
find that to obtain a divorce you have to prove that the other party has been
guilty of a fault. In 1970 in England all these grounds were removed and there is
only one ground that of irreconcilable differences. In Kenya you still have to
quote one or more of the grounds that are listed in the matrimonial causes Act.
K v K HCCC No. 123 of 1975 where it was held that any amendments which are
contrary to our own laws would not be applicable in our own situation.
PROBLEM OF CHANGING ONE’S FAMILY LAW FROM ONE SYSTEM TO

ANOTHER
The issue is whether one can change from one system of family law to another
e.g. can one change from English Statutory Law to Customary Law or vice versa?
Theoretically it looks possible because under S. 76 of the Constitution it is
provided that freedom of religious belief is protected and guaranteed and
following from this constitutional guarantee it follows that the moment you
change from your religion, your family law will automatically change as ones
family law is determined by ones religious beliefs. However it has not been that
simple and the position is that while one can easily change from customary,
Hindu or Islamic family law to statutory law, you have to have changed your
religion. It is not easy to convert from statutory to Islamic or Customary just by
the act of change of faith. Statutory law still insists on a number of formalities
before one can change from one system to another.
English law started with a situation of non-tolerance of other family law systems
other than their own family law system and you find cases like
Hyde v. Hyde
This case concerned the marriage in 1858 of two Mormons in Salt Lake City, and
marriage was defined in that Ruling as marriage according to Christendom was
the ‘voluntary union for life of one man and one woman to the exclusion of all
others’.
Re Bethel [1888]
In this case an English man married a Botswana Woman under Botswana

customary law and they had a child, the husband died and left property in
England. The issue was whether this daughter was legitimate and could
therefore inherit the property in England and the court held that that marriage
was not recognized under English law because it was potentially polygamous
and the daughter was therefore not legitimate and could not inherit the property.
And they quoted Hyde’s case that marriage was the voluntary union for life of
one man and one woman to the exclusion of all others.
Ex Parte Mir- Anwarrudin (1917)
Had a similar ruling with Re Bethel
The attitude of the English courts not recognizing any other law was also found
in Kenya in colonial times Re Amkeyo the courts termed the wives in those
marriages as concubines and refused to recognize them as wives,
From 1940 the English Courts started to change their attitude and started
recognizing other family law systems for purposes of entertaining matrimonial
causes arising from those systems. Note that this recognition was not for
purposes of validating them but for purposes of facilitating the change from
those systems to statutory family law systems so that they would recognize
another family law system for purposes of invalidating it or purposes of
facilitating change from that system to the English law system.
During 1940s up through to the present day, courts now do recognize other
family law systems and recognize that you can change from one system to
another
Bandail v. Bandail
A Hindu polygamous marriage was recognized for purposes of nullifying in

England.
Sowa v. Sowa
In this case, a polygamous marriage was celebrated in Ghana where the parties
were domiciled. Prior to the ceremony the husband promised the wife that he
would go through a later ceremony which, according to the law of Ghana, would
convert the union into a monogamous marriage. He failed to carry out his
promise. It was held that, despite his promise and despite the fact that the
husband had not taken an additional wife, the marriage continued to be
regarded as polygamous.
The English courts also made rulings as to what acts could change a polygamous
marriage to a monogamous marriage. The first act was a change of religious
belief of faith which then affected the parties legal status was the first act to be
recognized.
BY CHANGE OF RELIGION
Sinha Peearage Case [1946] 1 All E.R. 263 P.C
The parties changed their Hindu Sect from one practicing polygamous marriage
to one practicing monogamous marriage. It was held that changing their
religious beliefs changed their marital status and the polygamous marriage was
changed to a monogamous one.
A.G Of Ceylon v Reid [1965] A.C. 720
Local Legislation is one recognized way with the aim of changing the character
of ones family law system.
BY STATUTE
Parkasho v. Singh [1967] 1 All E.R.
A statute converted Sikh marriage from being polygamous marriage to

monogamous marriage and it was held that it was out of these religion changes
that family law of Sikhs was changed. The legislation must be full legislation
that deals with all marriages in that category.
Under our own Christian Marriages Act it is your religion that determines
whether you can change your category of marriage.
Where there is a second ceremony of marriage that is designed to change one

status from polygamous to monogamous union. This is the kind of situation
which would obtain under the African Marriage and Divorce Act
Ohochuku V. Ohochuku [1960] 1 All E.R. 253
The parties had been married under Nigerian Customary Law and then
underwent a Christian Marriage. Under English law which created a
monogamous marriage
BY CHANGE OF DOMICILE
Ali v. Ali
This case provides authority for the proposition that, if a husband changes his
domicile from a country that permits polygamy to one which does not, this
change of domicile renders the marriage monogamous.
Change of Domicile
Domicile is essentially ones permanent home or the place that one intends to set
up their permanent residence and in this case the parties had contracted a
polygamous marriage in India but the marriage had remained a de facto
monogamous marriage. They then changed their Domicile to England which
changed their marriage into a dejure monogamous marriage.
The English accepted in two phases gradually recognizing other family law
systems for the purposes of nullifying those unions or converting them into
English systems, but never vice versa.
The Kenyan situation is very much like the English one. Kenya statutes do
provide for the change from one system to the other. Section 11(b) of the
Marriage Act implies that one can change their customary or Islamic law
marriage into a Christian marriage. When you apply for a marriage certificate
there must be an Affidavit stating that neither party is married under customary
or Islamic law to any other person they intend to marry
Section 9 of the African Christian Marriage and Divorce Act provided for parties
who are married under customary law to marry under the Act if they wish to do
so and there are a number of parties that
The Islamic law under section 5 (6) also in any way does provide of conversion of
customary law marriages to Islamic marriages, though not directly. The section
makes it an offence for one to convert to Islamic marriage from other marriages
unless there is a divorce.
In our situation one can change ones family law
Case Law
Ayoob v. (1968) E.A. 72
Estate of Ruenji
Re Ogolla’s Estate
In Ayoob case the parties were Muslims and they got married under the
Marriage Act as the statutory law marriage. On the same day they were married
under Muslim Law. Subsequently the husband divorced the wife by way of
tarak a Muslim form of divorce. He then went to court seeking a declaration that
his marriage had been lawfully resolved. It was held that the husband by
performing the taraq was able to divorce the Muslim marriage but if he wanted
to divorce the statutory law marriage he would have to file for divorce under the
Matrimonial Causes Act. The court is saying that the act of contract of a Muslim
marriage after the statutory law marriage does not convert the statutory law
marriage so that the statutory law marriage was still persisting and had to be
divorced by following court procedures
Ruenji and Ogola – facts are similar
Estate of Ruenji
The deceased a Kikuyu by tribe and domiciled in Kenya, died leaving a gross
estate of about 53,000 shillings. It is not disputed that he was married to one
Loise Murugi Mbiri under the African Christian Marriages Act in 1941. It is also
alleged that the deceased subsequently married two other ladies, namely Mary
Waithira and Mary Wanjohi according to the Kikuyu customary law and had
children by them. The public trustee and the lawyer for Loise submitted that the
first question that must be decided is whether in view of the deceased’s first
marriage under the African Christian Marriage and Divorce Act the deceased
could enter into one or more other lawful marriages. Marriage under the African
Christian Marriage and Divorce Act is meant to be a Christian marriage and that
parties become legally bound to each other as man and wife so long as both of
them shall live and their marriage cannot be dissolved during their lifetime
except by a valid judgment of divorce and that if either of them (before the death
of the other) should illegally contract another marriage while their marriage
remained undissolved, the offender would be guilty of bigamy, and liable to
punishment for that offence. It is apparent that the deceased had not divorced
Loise during his lifetime, and that, consequently, any subsequent marriage
would be illegal.
In both Ruenji and Ogola a man married his first wife under statutory law and
then contracted second marriage under customary law. The man died and the
question arose whether both wives could benefit from the husband Estate. The
court held that the second wives were not recognized under Statutory law
because the man did not have capacity to contract a second marriage and they
therefore they and their children could not inherit from the man’s estate. The
court is saying that the man could not convert from a statutory way of life that he
had committed himself to. The second wives were not recognized.
These two cases were instrumental in leading to Succession Law and in our Law
of Succession Act whilst even under customary law wives can inherit irrespective
of the fact that the husbands could have married previously under statutory law.
The current bill to amend the constitution addresses this issue by giving equal
recognition to all the systems under the constitution. Family law system will be
protected and once one changes their religion as a result that change will be
recognized and guaranteed. What is remaining is to recognize and bring all the
system under one system and give them constitutional protection.
Other ways in which family law might be changed
1. Where one marries someone practicing another family law system: for
example if a person practicing a customary law system marries a
person practicing Islamic law normally the implication is that that
marriage will bestow upon the parties a new family law system and
normally the operating law system will be that of the man. Ours is a
patriarchal society.
2. one can also acquire a new family law system by change of Domicile
Ali bhai a family was allowed to change their family law system after settling at
the Kenya Coast. From Hindu to Islam.
Change of Family Law in other jurisdiction - cited under conflict of marriage

laws
Manjany v Ndongo (1967) JAL 13
Mokhotu v. Manyaapelo - Lesotho
Onwudinjo v. Onwudinjo [1962] J.A.L 49-52 - Nigerian
Bakari v. Kichunda (1973) L.R.T Tanzania
Rattansey v. Rattansey (1960) E.A. - Tanzania
These cases dealt with change of family law system,
These cases - most of commonwealth jurisdiction have basically adopted the

Kenya position that is, you cannot change ones family law system just by
changing ones religion especially if it is from statutory law system to other
family law system.
Onwundinjo v. Onwundinjo was a succession matter, the other wife could not
inherit because the husband had contracted an earlier statutory law marriage.
In Manyaapelo a second customary law marriage between the parties was

declared null and void because at the time of contracting the husband had not
validly divorced the first wife who he had married under statutory law.
In the Gambia in Manjany vs. Ndongo the courts recognized you could change
from statutory to Islamic law marriage by contracting an Islamic marriage
ceremony after the statutory marriage ceremony
In Ayoob the facts are similar to Manjany but the courts ruled differently.
In Ayoob, the appellant a Sunni Muslim, and the respondent, a Shiite Muslim,
were married in accordance with the Marriage Act (Cap 150). A marriage under
this Act is monogamous. Subsequently they went through a ceremony of
marriage according to Mohammedan Law, the respondent by then having
adopted the doctrines of her husband’s sect. The appellant later purported to
divorce the respondent by pronouncing talak. The Appellant then, by petition to
the High Court, sought a declaration that his marriage to the respondent was
lawfully dissolved. The learned judge held that a marriage under the Marriage
Act was not a Mohammedan marriage and that it could only be dissolved during
the joint lifetime of the spouses by a valid judgment of divorce pronounced
under the Matrimonial Causes Act (Cap 152) and he accordingly dismissed the
petition.
In Rattansey the facts were similar but the courts held that the talak terminated
the statutory law marriage earlier contracted.
Gambia and Tanzania – these can be distinguished from other commonwealth
countries in the sense that they have made an attempt to recognize their own
family laws and Islamic Law and Statutory Law in Gambia are equal.
CONFLICTS THAT ARISE
The conflicts that arise are in 3 main respects
1. Conflict between statutory and other systems of family law because of

the reluctance by the court to recognize that one change from statutory
to other family laws. E.g. parties will get married under statutory law
and continue to live their customary way of life and in the process
contract customary law marriages and the issue is to what extent will
that customary law apply to people married under statutory law?
There are situations such as Re Ogola arising or stories of people having

gotten married under statutory law and then getting married under
customary law and later to realize that they have committed an offence.
2. Different Customary Law systems especially African customary law

system. This problem is exacerbated by the fact that the Kenyan
population is becoming urbanized and when we say that the Kenya
customary law applies, which is the customary law and especially for
people who live in urban areas and do not practice any customary law.
3. Statutes – two examples will be between the Marriage Act and the Law
of Succession Act whereby under the Marriage Act marriages are
strictly monogamous and it is an offence to conduct a second marriage
but the Law of Succession gives recognition to potentially polygamous
marriage and that they can inherit under this law. Under the
Matrimonial Causes Act there is no provision for application of
customary law in determining the fate of the children. Under the
children’s act the act provides that in matters determining custody of
children one of the matters to be taken into account are the customs
affecting that child. So in an attempt to accommodate African system
of law the children are brought in a concept not present in other Acts.
Unless there is a total overhaul of the statutes in the family law arena
where they are harmonized and put on the same wavelength we shall
continue having these conflicts of four different family law systems.
SUBSTANTIVE LAW
FOUR DIFFERENT SYSTEMS OF FAMILY LAW
STATUTORY LAW
HINDU LAW
MUSLIM LAW
CUSTOMARY
1. MARRIAGE
What is a marriage - a marriage will be a union between one man and one
woman who intend to live together as husband and wife. What happens in
polygamous marriages? The man will contract separate marriages with each
woman so for each it is a union between one man and one woman. Marriage
therefore is basically a consensual contract and is a social contract between the
parties involved. Before there can be a marriage there must be the agreement to
marry, and the first take in any marriage relationship includes an agreement to
marry.
LEGAL INCIDENCE OF AGREEMENT TO MARRY
Not every agreement to marry will result in a marriage.
Statutory Position
Basically under statutory law an agreement to marry is said to exist under

common law when parties decide to get married and act in a manner that shows
their intention to marry. Under common law, agreements to marry amounted to
contracts that were legally enforceable provided it could be shown that the
parties involved intended to enter into a legal relationship so that a party who
withdrew from such an agreement without any legal justification could be sued
for breach of contract and the injured parties could claim damages.
Being essentially a contractual relationship, all the usual contractual

requirements must apply i.e. requirements as to capacity to enter into that
contract, consent, intention to create legal relations etc. All these must be met
before one can allege that there has been a breach of that contract.
Shaw v. Shaw (1954) 2 Q 3
The Plaintiff had cohabited with a man she regarded as a husband for 14 years
and they lived together as husband and wife and at one point even celebrated
their marriage. Upon his death, the plaintiff discovered that for 10 years of their
marriage the man had been married to another woman who died 2 years before
him and that it was therefore in those two years that he had capacity to marry the
plaintiff. i.e. he was only single for 2 years of their cohabitation and only in those
2 years that he should have been legally been married to her. She sued in the
States for breach of warranty and that warranty was that he was single and had
capacity to marry and he had therefore breached his promise to marry her. The
court awarded her damages for breach of that warranty.
Other than general damages, when there is a breach of agreement to marry

under common law normally gifts given in contemplation of that marriage will
also be required to be returned by the guilty party.
Cohen v. Seller (1926) 1 K.B. 536
The gift in question was a diamond engagement ring that had been given to the
lady and the issue was whether she should return the ring when the engagement
was broken and it was held that if it was the man who was guilty, or responsible
for the breach, then he could not demand the return of the engagement ring but
if it was the woman who had refused to fulfill the conditions of the agreement
then she was required to fulfill the conditions of the ring. It was found that it
was the man who had refused to carry out his promise and the woman was
awarded general damages and the lady allowed to keep the engagement ring.
Larok v. Obwoga (Ugandan Case)
The lady who was the Respondent and the Appellant were friends when the lady
was a pupil at college she became pregnant and as a result was expelled from the
college. The man then wrote to the lady promising to marry her by the end of
April. This was in 1968. In October he again wrote to the lady indicating that he
was no longer keen to marry her. The lady then went to court and sued for
breach of promise to marry and the lower court held that the man had
committed a breach of the promise and awarded the lady 2000 as damages. The
court based its computation on two grounds that the chances of getting married
had been impaired and secondly the injury posed to her feelings. The man
appealed but his appeal was dismissed and the sum of 2000 shillings was to be
paid.
In England this action of breach of promise to marry is no longer recognized. It
was abolished in 1970 by the Law Reform Miscellaneous Provisions)Act UK
(1970) the act abolished actions of breach of promise to marry but in KENYA IT
WAS NOT and still applies in Kenya via the Judicature Act.
MUINDE V. MUINDE
Please note provisions of Section 170 of the Penal Code which states that any
person who willfully and by fraud causes any woman who is not lawfully
married to him to believe that she is lawfully married to him and to cohabit and
have sexual intercourse in that belief is guilty of a felony and is liable to
imprisonment for 10 years.
AGREEMENT TO MARRY
Under Islamic law agreements to marry are entered into between the parents of
the intended spouses. Which means that until the contract to marry and the
actual marriage takes place; no contractual obligations arise as between the
intended spouses. Therefore no suit for breach of agreement to marry can be
instituted. However, where gifts or ornaments have been exchanged between the
two families, then these can be returned if the agreement to marry is broken.
This was the issue in
FAZALDIN V. DIN MOHAMMED
The girl’s father entered into a betrothal agreement without her consent and she
later refused to marry the prospective suitor. The prospective suitor brought an
action where he claimed damages for breach of agreement to marry and in the
alternative he also sought an injunction to restrain her from marrying any other
man until he had recovered all his damages and the gifts he had given. The court
held that he could only recover the presents and the ornaments he had given but
could not recover any damages.
The same position obtains under Hindu Law where agreements to marry are
made between the parents of respective spouses and a betrothal in respect of a
boy and a girl can be done when they are still infants. In
Dhanji v. Ruda
The betrothal agreement was made when the parties were still children and the
parents exchanged ornaments, clothing and other gifts. When the girl became of
age, she indicated that she had no intention of getting married to the boy and the
engagement was eventually broken. The parents of the boy instituted
proceedings for damages for the breach of contract. Court held that no damages
were recoverable because a contract where a person is forced against her will is
contrary to public notice and morality and the parents could only recover their
gifts and ornaments.
Agreement to marry under customary law
Under customary law agreement to marry normally take the form of betrothals
and the nature of the betrothal will differ between the different communities
whereby for some communities it is quite an elaborate formal ceremony while
for others it is a family affair with a few witnesses, therefore the agreement
under African customary law takes place between the families of the parties and
not the parties themselves. The effects of a betrothal under customary law is that
on part of the woman she loses her sexual freedom and cannot have any sexual
or any relationship with any other man and on the part of the man he is under an
obligation to pay the bride price ..
On the part of the family, the family of the girl is bound to give away their
daughter and are under an obligation to keep her chastity while the family of the
boy is under an obligation to pay the bride price. In the event of a breach
occurring, it has been held that under African customary law an action of breach
of promise to marry will not lie. This was held in muinde v. muinde There are
other remedies provided for under the Magistrates Act which include actions for
damages for seduction, and also actions for pregnancy compensation.
Muinde Muinde
It stated that if the Agreement to marry is made under statutory law, the action
will lie because the action is part of the deceased family law but it will not lie in
customary law because the remedies provided for in customary law are listed
and they had been awarded in the past.
Beda Maina v. Matheno
W. Ndegwa v. Edward Wandurwa
MARRIAGES
1. Conditions for valid marriages

2. Rights and duties during marriage
MARRIAGES UNDER STATUTORY LAW
Marriages under statutory law are celebrated under the Marriage Act and the
African Christian Marriage and Divorce Act. These two Acts reflect the inherited
English law provisions and are strictly monogamous. Under the Acts polygamy
is prohibited and Section 11 (1) (d) of the Marriage Act and Section 35, 49 and 50
of the Marriage Act, these are the Sections that make polygamy illegally.
Under Section 171 of Penal Code the offence of bigamy is provided for. Bigamy
is defined as going through a ceremony of marriage when having another
husband or wife living and the first marriage has not been rendered void by a
court of law. The offence of Bigamy is punishable by 5 years imprisonment.
Case Law both English and Kenyan case – the cases reiterate that these marriages
are required to be Monogamous
Hyde v. Hyde (1886) L.R. 130
The case provides the classic definition of marriage –

Marriage under Christendom is the voluntary union for life of one man and one
woman to the exclusion of all others.
The Kenyan cases of K v. K
In 1970 the petitioner went through a form or ceremony of marriage with the
respondent, at the District Commissioner’s office, Nairobi. At the time, the
respondent was married to one Grace Waiyaki Kang’ara in accordance with
Kikuyu customary law. That marriage had never been dissolved or annulled but
was still subsisting. Counsel for the petitioner argued that under the
Matrimonial Causes Act, under which the petition had been brought, a
monogamous marriage is the union of one man and one woman to the exclusion
of all others and as such if there existed another marriage contracted under
customary law, this one was null and void.
The court held that only a monogamous marriage could be created by a
ceremony under the Marriage Act and as the husband was already married, the
ceremony was valid and created no marriage status. Therefore the respondent
had committed adultery with the co-respondent. And Decree nisi was granted.
There were rulings that where a person is already married they cannot contract a
statutory marriage. In both cases the men had married under Kenyan
Customary Law and it was held that they had no capacity to contract a marriage
under statutory law.
CONDITIONS RELATING TO CAPACITY
The first condition is that the parties must be biologically man and woman. This
is found under common law as a requirement and in
Corbett v. Corbett (1970) 2 All E.R. 33
In this particular case the parties went through a ceremony of marriage at the
time of the marriage the petitioner knew that the respondent had been registered
at birth as being of the male sex and had undergone a sex change operation and
since that operation had lived as a woman. After 14 days of marriage the
petitioner filed a petition for a declaration that that marriage was null and void
on the ground that the respondent was a person of the male sex or alternatively
for a decree of nullity on a decree of non consummation of marriage. It was held
among other things that marriage is essentially a relationship between a man and
a woman the respondent having been a biological male from birth rendered the
so called marriage void. It was held that the Respondent was incapable of
consummating the marriage and that it was a nullity.
Right now there is a lot of controversy on the issue of definition of marriage with
some states allowing gay marriages. Our draft bill to amend the constitution has
also gotten into trouble with this issue because it implies that there can be same
sex marriages and they have decided to amend it to read marriage as a union
between man and woman.
Capacity
Gender
single
The parties must be single meaning they can be single, divorced or widowed.
LK v. CK
KVK
Section 3 of the Marriage Act and the other sections that outlaw bigamy.
3. AGE
Parties must be of Age to contract a marriage. Under our current laws the parties
must be at least 16 years of age that is the minimum age of marriage under
statutory law. There are however still some conditions when it comes to age but
minimum age is 16. the authority on age is
Pugh V. Pugh (1951)
A man of age over 16 years married a girl aged 15 years and it was held that that
marriage was void and in his ruling the judge gave the reasons why requirement
as to age is provided for by stating that
It is considered socially and morally wrong that a person of an age at which we

believe them to be immature should have the stresses, responsibilities and sexual
freedom of marriage and the physical strain of childbirth.
4. PROHIBITED DECREES OF RELATIONSHIPS
Relationship by way of consanguinity or affinity.
Relationship by consanguinity is where you have blood relationships and affinity

is relationship by way of marriage. These marriages are regarded as incestuous
and are prohibited for health reasons and inbreeding. Inbreeding gives one
imperfect stock and that is why these marriages are prohibited.
Section 35 of the Marriage Act refers us to English Law as related to the

prohibited decrees. This English Law is found in the first schedule of the UK
Marriage Act of 1945. This schedule gives a list of what are the prohibited
relationships and in that list a man may not marry his mother, including step
mother and mother in laws or adopted mothers, his daughter, including step
daughters, daughters in law and adopted daughters. He cannot marry his sisters
including step sisters, grandmother including step grandmother, he cannot
marry his granddaughter including step granddaughters, he cannot marry his
aunts or his nieces.
The woman likewise may not marry her father, step father, father inlaw and
adopted father, son, step son, son in law, grandfather, grandson, uncles and
nephews all these include step and adopted.
Under English law the list does not prohibit marriage between cousins.
REQUIREMENTS AS TO FORMALITIES
There are a number of formalities to be followed if one is getting married under

statutory law. The African all requirements as to formalities will apply under
the African Christian Marriage and Divorce Act.
The first formality is that of notice,
1. NOTICE
Parties who seek to get married under statutory law must give notice of their
intention to get married and this is provided for under Section 8 of the Marriage
Act. This notice is given at the office of the registrar of marriages in the District
where the parties reside. Always saving that notice the registrar then enters it in
a marriage notice book that he or she maintains and he is also required to
publish that notice by affixing a copy of the notice outside his office and the
notice stays there for a maximum period of 3 months or until the marriage
certificate is issued to the parties. This requirement mainly arises from the fact
that in evolution of marriage under common law it was demanded that a
marriage be a public act and should not be celebrated in private but in a public
place.
When giving notice the parties must attach an affidavit stating the following
(a) that at least one of the parties has been resident within that district for at
least 15 days;
(b) that the parties have attained the age of 21 years but if the parties range
between 16 and 21 years they must attach a consent in writing from their
parents or guardians.
(c) That they are not related in any way i.e by blood or marriage
(d) That they are not married to any other person under any law at the time of
issuing such notice.
These requirements are found in Section 11 of the Marriage Act.
Under Section 15 - if any person is dissatisfied with that notice, he or she either
places a caveat in the marriage notice book giving his or her reasons for
challenging the intended marriage and this caveat is placed by entering the word
FORBIDDEN opposite the entry of the notice. The person who places the caveat
then appears before a judge or a magistrate whereby he or she is then required to
show why the marriage should not take place and the decision of the court in
this regard is final.
Matter of the marriage of Alfred Nderi & Charity Kamweru
EF & EC
The facts in these two cases are very similar but the rulings were quite different.
In both cases the man gave notice of his intention to marry a lady and a caveat
was then placed by the Respondent in both cases claiming that the man was
already married to the Respondent and therefore had no capacity to contract the
intended marriage. In Nderi’s case it was actually 2 caveats and it was held that
the common knowledge that Nderi had in fact been married to both women
under Kikuyu Customary Law while one of the marriages had been dissolved
the other one had not. It was held that the registrar should therefore not issue
the certificate of marriage because Nderi did not have capacity to marry under
statutory law.
In the matter between EL AND EC the caveator claimed that she had eloped with
a man and therefore he had no capacity to marry another woman. In this case it
was found that the formalities under customary to contract a marriage had not
been met and especially the consent of her family to that marriage had not been
given and therefore she could not invalidate the intended marriage because she
did not have a marriage with the man and the caveat was thus removed from the
notice book.
if the registrar is however satisfied with the notice and is satisfied that no caveat
has been registered, then he may issue a certificate of compliance and in that
certificate indicate that a marriage should take place within three months of the
notice being given. If the marriage does not take place within the 3 months, then
the notice and all proceedings consequent to that notice shall be void and if the
parties still intend to get married, fresh notice must be given.
The role of the registrar is sometimes performed by church ministers whereby
rather than give notice at the registrar’s office the church minister announces in
the church which the parties attend that the parties intend to get married better
known as bans of marriage and this is a recognise and valid way of publishing
the notice to get married..
B. CONSENT
If below 21 years consent in writing from parents or guardian is required.
Re Bennet (1974) 45 DL.R 409
H v H (1954)Probate Report 158
In Re Bennet a 16 year old girl sought an order to dispense with her parental
consent to her intended marriage and the court refused to give that order
insisting that consent must be given for the marriage to proceed.
c. CELEBRATION OF THE MARRIAGE
The requirements about celebrations are found in Sections 23 – 25 of the

Marriage Act. The Marriage must be celebrated by a licensed by a licensed
person either a registrar of marriages or a church minister. The marriage should
also be celebrated in a licensed place. Again this is the registrar’s office or in a
church though there are certain exceptions. The marriage should take place
between 8 am and 6 p.m in public and in the presence of two witnesses.
However if the marriage is being celebrated in the registrar’s office it should take
place between 8 am and 4 p.m.
Section 24 provides that if the person celebrating that marriage knows of an

impediment in respect to that marriage then he shall not celebrate the marriage.
Under Section 31 of the Marriage Act, the Minister incharge of Marriages may
authorise a marriage to be celebrated in a different place upon request and he or
she has to authorise a licensed person to celebrate that marriage.
D. REGISTRATION
After compliance with all the requirements the parties then register their
marriage and they are issued with a marriage certificate. They are required to
sign the marriage certificate in duplicate and their signatures must be witnessed
by two witnesses.
MATRIMONIAL RIGHTS & DUTIES UNDER STATUTORY LAW
These are duties that arise once parties are statutorily married
1. The right to consortium – a consortium is the right to the company society

and affection of a spouse in any matrimonial relationship. Under the old
common law rules it was the husband who had a right to the wife’s consortium
but the wife had no such right to her husband’s consortium. What she had was a
duty to offer her companionship and services to the husband. Under the old
common law rules the husband also had the right to chastise his wife if she failed
in her duties including confining her within the house.
Republic v. Jackson
In this case, the wife had gone to live with relations whilst her husband was
absent in New Zealand. After his return she refused to live with him again.
Consequently he arranged with two men that they should seize her as she came
out of church one Sunday afternoon. She was then put into a carriage and taken
to her husband’s residence, where she was allowed complete freedom of the
house but was not permitted to leave the building. She then applied for a writ of
habeas corpus and it was unanimously held by the Court of Appeal that it was
no defence that the husband was merely confining her in order to enforce his
right to her consortium.
Republic v Reid
The two cases established that the current position is that though spouses have
the right to the others consortium, they cannot use extra judicial means to enforce
them. In one of the cases the husband locked the wife in the house and refused
anyone to see her the cause was being difficult to live with.
In Nanda v. Nanda (1968)
The husband deserted the wife and went to live with another woman. The
woman installed herself in the flat where they were living and refused to move.
The husband applied for an injunction to restrain the wife from moving to the
flat where he was living with another woman. In granting the injunction the
court stated that a wife or a husband cannot force a husband/wife to live with a
spouse who has rejected them. In other words while the law recognises there is
consortium, they cannot enforce it and neither can one use extra judicial means
to employ it.
The Matrimonial Causes Act provides for restitution of conjugal rights but if the
other party is not willing, no court can force an order for restitution of conjugal
rights. Where consortium is lost, a husband cannot insist on conjugal rights.
One cannot force an order for restitution of conjugal rights if the other party is
not willing. One has an option to go to court for divorce.
R V. Kadhi EX PARTE NASRREN (1973) E.A. 153
This case is important for the position that whatever system of family law is
applied, they must be constitutional or they are declared null and void.
There are a number of other various rights that accrue from consortium.
(a) Right of the wife to use her husband’s name; in the Kenyan case to
acquire her husband citizenship. In Kenya the husband does not
acquire the wife’s citizenship although in other areas he does.
(b) Both spouses have a duty to cohabit together in their matrimonial

home, however the decision as to where that matrimonial home will be
cannot be specifically made by a specific spouse and it has to be a joint
decision and this was the ruling in Dunn v. Dunn (1949)98 in this case
the husband petitioned for divorce on the ground of desertion alleging
that when he had returned from working overseas (he was a sailor) he
had requested his wife to go and live with him at a sea port where he
was stationed and that she had refused and persisted in her refusal for
his request. His argument was that the husband has the right to decide
where the spouses should live and that by refusing to join him she was
therefore guilty of desertion. It was held that it is not a proposition of
law, it is not the law that a husband has the right to say where the
matrimonial home should be. It is simply a matter of ordinary good
sense arising from the fact that the husband is usually the wage earner
and has to live near his place of work. It is the duty of the spouses to
decide by agreement as to what their matrimonial home should be.
Therefore the wife was not guilty of desertion in this particular case.
The court is saying that it is not the law that the husband should
decide where they are going to live.
(c) The spouses have the right to sexual intercourse with one another and
this plight commences with consummation of marriage and continues
even after the marriage has been consummated. Consummation is the
act of sexual intercourse after the celebration of the marriage.
However the right to sexual intercourse continues even after
consummation. However this does not mean that a spouse should
submit to unreasonable demands of sexual intercourse AB V CD 28
K.L,R, 210 The court held that the wife had the right to refuse to
submit to unreasonable demands for sexual intercourse. It amounts to
cruelty and can be a ground for divorce. On the issue of marital rape,
it has been held that a man cannot be guilty of raping his wife unless
they are separated or divorced. This is judicial separation. If a man
insists on sexual intercourse when they are judicially separated, he will
be guilty of rape as was the case in R v. Clarke also R v. Miller. Is the
use of contraceptives against the wishes of the other spouse a
contravention of marriage. It has been held that it does not affect the
right to sexual intercourse but it can however give rise to divorce if it is
shown to have injured the other party whether emotionally or
physically it can be cruelty.
Right to Matrimonial Confidence within the spouses.
This is the basis for privilege position of spouses in the law of marriage. The law
will protect any matrimonial confidence that is entered into during the
subsistence of marriage. Even in the event of a marriage break down the law will
seek to protect a spouse from disclosure of such confidences.
Argyll v. Argyll
(a) Name/citizenship
(b) Right to cohabit
(c) Right to sexual intercourse
(d) Matrimonial confidence all this arise from the right of consortium.
2. RIGHT OF MAINTENANCE:
Under common law, the obligation to support a spouse applied to both
spouses. Therefore a man was under an obligation to support his wife and
vice versa. However this was modified by statutes whereby now under
statue the wife is the one who has the right to maintenance by her husband
where she is financially dependent of him and that scope of maintenance is in
accordance with the husband’s financial standing and his standard of living.
The husband is also under a duty to maintain his children during a marriage
and even after a marriage. This maintenance arises under (a) the Matrimonial
Causes Act Sections 25 and 26 and under the subordinates Courts Separation
and Maintenance Act Section 10. please note that the right to maintenance
accrues during marriage and even after the marriage has ended.
When claiming for maintenance the wife has to indicate her needs and her
children’s needs, her own income as well as her husband’s income. There is
no hard and fast rule as to the amount of maintenance that a court may order,
however there are certain guidelines which apply.
In the case of Alimony Pendente tite which is alimony or maintenance paid to

a wife pending determination of a divorce case. In those cases it is provided
for that that alimony may not exceed one fifth of the husband’s average net
income for the preceding 3 years. That is only in relation to cases of alimony
pending suit.
In other cases of maintenance the courts follow the common law practice of
awarding an amount that will make the wife’s income one third of the aggregate
income of both husband and wife. This is just a guide offered and courts will
depart from it where the facts of a particular case warrant it.
Under section 32 of the matrimonial Causes Act the court can vary a
maintenance order where circumstances arise warranting that variation.
N v N (1973) KHD 40
In common law the right to maintenance stops as soon as cohabitation ceases but
under statutory law the right continues even after cohabitation. Under
customary law the right to maintenance cease once cohabitation ceases.
OTHER SYSTEMS OF LAW INSOFAR AS MARRIAGE IS CONCERNED
1. MARRIAGE UNDER CUSTOMARY LAW
There are different forms of marriages that exist under 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 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. 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 CUSTOMARY
LAW
Normally both parties have the right to consortium however the rights that
arise from this consortium will vary between the husband and the wife. On the
part of the man, he has a duty to provide shelter for his wife and children. The
man must have a house.
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 b y
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.
MARRIAGE UNDER ISLAMIC LAW
There are 3 aspects to a marriage under Muslim Law

1. Legal Aspect;
2. Social Aspect;
3. Religious Aspect.
Legally a Muslim marriage is a contract which provides for certain requirements

as regards consent and also provides for provisions for its breach. One can
enforce a Muslim marriage judicially and it provides for specific terms.
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
1. Farties 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 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 MARRIAGES
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
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
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
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 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.
NULL & VOID MARRIAGES
These are provided for under Section 14 of the Matrimonial Causes Act so by
reason of being in this Act means that they only apply to statutory and Hindu
marriages. Statutory marriages because it is provided that marriages under this
Act are those contracted under the Marriage Act or Christian Marriages and
Divorce Act.
DIFFERENCE BETWEEN NULLITY AND DIVORCE
In effect when one goes to court to ask marriage to be declared null and void you
essentially saying that there was never a marriage but when you seek divorce
you acknowledge the marriage and seek to annul it. Grounds for nullity are
different from grounds for divorce.
GROUNDS OF NULLITY
1. Where the husband is impotent where the parties are physically

incapable or consummating the marriage. Consummation is the sexual
intercourse between the parties after the marriage is solemnised and in
D.E. V. AG 163 E.R it was stated that in order to amount to
consummation the sexual intercourse must be ordinary and complete
sexual intercourse. In this case the wife had a physical deformity that
made full penetration impossible and it was held that this amounted to
physical incapacity to consummate the marriage and it was declared
null and void. Physical deformities which make consummation
difficult must be those which cannot be corrected. If they can be
corrected, courts are reluctant to declare such a marriage null and void.
Refer to S. V. S (1956) P 1 . The use of contraceptives will not affect a
marriage and this was the case in Cowen v. Cowen (1945) 2 II E.R. 1946
Baxter v. Baxter
The fact that a husband or wife is sterile will not affect consummation of
marriage
R V. R (1952) ITLR 1201
2. Wilful refusal to consummate the marriage: This is where a party
refused to consent to any sexual intercourse and that refusal must be
steadfast and determined.
S V. S this case dealt with both physical incapacity as well as wilful refusal to
consummate. In this case the consummation of the marriage was prevented
by a physical defect in the wife which was curable. The husband suggested
to the wife that she should consult a doctor but the wife delayed in consulting
the doctor.
The husband then petitioned for nullity of the marriage on the grounds that
of incapacity and wilful refusal to consummate. Upon service of the petition
the wife expressed a willingness to undergo the necessary operation which
she underwent and which removed the defects. It was held that the husband
had not proved that failure of the wife to see the doctor amounted to wilful
refusal. Her conduct was merely a state of indecision and mere neglect to
comply with the husband’s request was not necessarily the same as refusal.
The petition therefore failed on the ground of wilful refusal and it also failed
on the ground of incapacity on the ground that consummation of the
marriage was not practically impossible especially since the result of the
operation was to remove any impediment in consummation. When it comes
to wilful refusal, it need not be contractual as it was stated in Jodla v. Jodla
and Kaur v. Singh.
The facts in both cases are very similar and in both cases the husbands
were supposed to organise on their marriage ceremonies. In Jodla the
marriage was supposed to be a church ceremony while in Kaur it was a
Hindu ceremony and in both cases the husbands failed to organise for the
ceremony as a result of which the wives refused to consummate the
marriages on religious grounds. It was held that wilful refusal was on the
part of the husbands and not on the wives because they had failed in a
crucial consummation exercise which was crucial.
DOCTRINE OF APPROBATION
What this doctrine provides is that where parties have stayed together for a long
time with this deformity or where they have accepted the wilful refusal, then
courts will not declare that marriage null and void on the basis that the parties
by staying so long together have assumed that deformity and accepted it.
Normally this period ranges between 10 and 20 years.
In Harthan v. Harthan (1948) 2 All E.R
The husband sought a declaration of nullity on a claim of his own impotence and
claimed that in their 20 years marriage he had been unable to engage in any
sexual intercourse and the court declined to grant him the decree citing this
doctrine of approbation.
G V. M (1885) 10 A.C. 71
3. Where parties are related to one another within the prohibited degrees
of affinity and consanguinity.
4. Where either spouse is married to another person and that other

marriage is still subsisting.
5. Where the consent of the parties was obtained through fraud or duress.
In Buckland v. Buckland - the petitioner was seeking nullity was
accused of defiling a girl of 15 years and although he was protesting
his innocence, he was advised that unless he married the girl he would
go to prison. He contracted the marriage and later filed for annulity on
the grounds of consent and the court granted him the petition.
6. Where a party to a marriage is at the time of contracting that marriage

of unsound mind, drunk, insane or suffers from epileptic fits, this will
be a ground for nullity of that marriage. This only affects the marriage
if it happens at the time of contracting the marriage. The grounds
ensure that the parties are capable of knowing what they are entering
into.
7. Mistake – however this will only be a ground in two circumstances

only
(a) where the party relying on mistake proves that he/she was
mistaken as to the identity of the other party. i.e. he/she did not
marry the person they intended to marry. This is usually
difficult to prove when the person you are marrying is in front
of you and only happens where marriages by proxy or mail
order are allowed. In Singh v. Singh the woman married the
man on the mistaken belief that he was a famous boxer. The
man shared a name with the famous boxer and even told her
that he had won various championships. She petitioned for
divorce on grounds of mistake but the court held that she had
married the man that she intended to marry and was only
mistaken as to his qualifications.
(b) Where a party is mistaken as to the nature of the ceremony and
do not appreciate that he/she is contracting a marriage. This
was the case in Kelly v. Kelly, Mehta v. Mehta in Mehta a
woman got in into a marriage thinking that she was celebrating
becoming a Hindu but she was later to discover that she had
gotten married to a potentially polygamous marriage and she
petitioned for divorce.
8. Where a spouse is suffering from a venereal disease in a communicable

form:
9. If at the time of contracting the marriage the woman is pregnant by

some other person other than her husband. Poulet Peerage Case - the
wife was three months pregnant at the time of contracting the
marriage and the husband gave evidence that he had not had any
sexual intercourse with her before the marriage and was granted a
petition for nullity on this ground.
Sometimes the issue arises with issue to nullity about what are sham marriages
and whether these marriages are null and void. Sham marriages are those where
parties enter into a marriage merely for purposes of representing themselves as
married but have no intention of cohabiting. This are normally conducted for
purposes of acquiring citizenship and acquiring jobs or just to legitimise children.
It has been held that such a marriage is perfectly valid provided the parties have
freely consented to it. This was the ruling in Silver v. Silver (1955) in this
particular case a German woman married an English man so that she could be
allowed to reside in England. Upon arrival in England the parties separated and
only met twice in a period of 29 years. After 29 years the wife filed for
proceedings to nullify the marriage on the grounds that the marriage was a sham
marriage. The court declined to declare the marriage null and void on the
grounds that it was their intention to get married and the reasons were irrelevant.
In such cases the option available in sham marriages is divorce.
VERVAEK V. SMITH (1983) 1 A.C. 45 the marriage was entered into to avoid a
wife being deported (she was a prostitute) from England and the court held that
the marriage was valid.
Szechter v. Szechter (1971) P. 286 - in this particular one the marriage was
declared null and void on the ground that the parties had not consented. They
had entered into the marriage out of fear that the woman would be killed. This
was a marriage which was not really consented to by the parties.
Rosemary Moraa v. Charles Kizito
The woman in this case entered into a marriage for purposes of legitimising a
child and cohabited with another man. It was held that the later marriage was a
legal marriage, the one arising out of cohabitation.
EFFECTS OF A DECREE OF NULLITY
At common law that marriage had some fatal consequences. Where marriage
was declared void any children of that marriage were declared to be illegitimate
and no legal consequences could flow from that relationship e.g man was under
no obligation to maintain the wife or children born of that relationship and
neither could they inherit from his estate. However this position was changed by
statutory law both in England and in Kenya and under Section 14, any children
born out of such a marriage will be treated as legitimate. From legitimacy will
flow other rights as to maintenance and inheritance.
Note that there is a proviso under Section 14 that a marriage will still remain
void if under the law it is void irrespective of the fact that a decree of nullity has
not been granted. The fact that somebody does not go to court to declare the
marriage null and void, it still remains void.
In the case where ground for nullity is either that at the time of contracting the
parties were of unsound mind or where the ground is that one of the party’s was
suffering from a venereal disease or that the woman was pregnant. In those 3
grounds, there are certain conditions which must be proved by the petitioner.
1. The petitioner has to show that at the time of contracting the marriage,
he/she was ignorant of the facts alleged;
2. The proceedings must be instituted within one year of the marriage
being contracted.
3. The petitioner must show that no sexual intercourse has taken place
between the parties after the petitioner discovers the existences of
those facts he alleges.
RECOGNITION OF FOREIGN MARRIAGES
A marriage will have a connection with a foreign law in a number of ways
1. It may have been celebrated abroad but the issue of validity arises in a
Kenyan court or
2. One or both parties to the marriage may be domiciled or resident in a
foreign country;
The question which arises on the validity of these marriages is which law will
determine whether a valid marriage has been contracted? Is it Kenyan law or is
it some foreign law?
The applicable law for purposes of determining the validity of such a foreign
marriage (marriage with links with foreign Law) is dependant on two aspects
(i) Formal validity of that marriage;

(j) Essential validity of the marriage.
Generally the law governing the formal validity of that marriage will be the law
of the country where the marriage was celebrated. This is known as the Lex Loci
Celebrationis.
When it comes to essential validity as in issues related to capacity, the law that
governs is the law of the parties domicile – lex domicili
So for a foreign marriage to be valid in Kenya it must comply with the formal
requirements under the laws of the country where it was celebrated and must
fulfil the issues as to capacity and the law of the parties domicile and if it is
formally and essentially valid under the applicable laws then it will be applicable
in Kenya.
FORMAL VALIDITY
Here so long as the parties comply with the formal requirements of the law of the
place of celebration then that marriage will be recognised as formally valid in
Kenya. This is so even if that marriage does not comply with the formal
requirements of the parties personal law which is the parties’ domicile. In some
cases parties will go to a certain place to evade conditions laid down by their
personal laws.
Simonin v. Mallac
In this case the parties came to England to get married so that they could escape
the condition as to parental consent which prevailed in France which was their
domicile. It was held that marriage was valid in England. The converse also
applies if it is formally invalid in the place where it was celebrated and formally
valid under their domicile that marriage will be formally denied. This was the
case in
Berthiaume v. Dastous [1930]
In this case the spouses were domiciled in Canada and they were married in a
Roman Catholic Church in France. However under French law a church
marriage had to be preceded by a civil ceremony which the parties did not do
and therefore under French law this marriage was void.
The court held that that marriage was void even though under the law of Quebec
a religious ceremony alone would have been sufficient.
FORMAL VALIDITY
This refers to the rules that relate to formalities of contracting a marriage. This
will normally be rules relating to the preliminaries to marriage e.g. requirements
as to notice and so forth. Also rules relating to the actual ceremony act itself such
as time, place, nature of the ceremony, requirements as to witnesses and in Apt v.
Apt a rule which permitted marriage by way of proxy was classified as a
formality and such a marriage in a country where marriages by proxy are
permitted was held to be valid and recognised by the English Courts. The
marriage took place in a country where they permitted marriages by proxy.
Ogden v. Ogden – problem was whether parental consent was one of formality
or capacity. Parental consent in this case was classified as an issue of formality
and since the marriage had been celebrated in England, English law was applied
as opposed to French law which was the law of the parties country of domicile.
Had it been an issue of capacity, under French law the parties would have
required parental consent which had not been given that marriage would have
been declared null and void.
EXCEPTIONS THAT APPLY TO THE RULE THAT FORMAL VALIDITY IS
GOVERNED BY THE LAW OF THE PLACE WHERE THE MARRIAGE TOOK
PLACE
Under statute the marriage Act under S. 5(2) and S.38A(which is an amendment)
under these two sections, marriages can be contracted under Kenyan law before
a Kenyan consular or other public officer in any foreign country where at least
one party to that wedding is a Kenyan citizen. Essentially they are saying that
where Kenyans marry in Kenyan embassy the applicable rule will be the Kenyan
law. Such marriages must be solemnised at the official residence of the marriage
officer between the hours of 8 am and 6pm and in the presence of two or more
witnesses. Once it has been contracted that marriage will be formally valid in
Kenya even though it may not be formally valid in the country where it was
celebrated.
The two common goal exceptions are

1. Marriages in situations where compliance with the local law is
impossible for example when you get married in a place where no
laws apply or in an uninhabited region.
2. Where the marriage occurs in a country under hostile occupation and
at least one of the parties to that marriage is a member of the
occupying forces.
In these two exception the law that will then apply is the common law as to
formalities of marriage. That marriage will be valid so long as the formal
requirements under common law are met.
1. they should take each other as man and wife in the presence of each
other and that an ordained priest should perform the ceremony.
Preston v. Preston
Taczanowska v. Taczanowski
Two Polish nationals, domiciled in Poland were married in Italy in 1946 by a

Polish Army Chaplain, an episcopally ordained priest of the Roman Catholic
Church, and therefore their marriage was valid according to the English
Common Law. The husband was serving in the Polish army in occupation in
Italy. The ceremony did not comply with the local forms and was therefore void
by Italian domestic law, but it would have been recognised as valid by that
country’s private international law if it was valid by the national law of the
parties. It was however, not valid by Polish law.
The parties moved to England and later the wife petitioned for a decree of
nullity on the ground that the marriage was void for non-compliance with the
local forms. The court of appeal felt that since the parties were presumed not to
have submitted themselves to the Italian law of the place of celebration, that law
did not have to be applied. It was considered that there will often be no
submission by a member of the military forces in occupation of a country and as
such it was held to be the case here. As Italian law was not applicable and the
law of the parties’ domicil was considered irrelevant, English common law was
applied and the validity of he marriage upheld.
ESSENTIAL VALIDITY
This is concerned with issues of capacity and the applicable law is the law of the
parties domicile. The problem that arises to the application of this rule is what
test is to be applied to determine the parties’ domicile. You may find parties
domiciled in different countries at the time of contracting the marriage or they
may even intend to acquire a different domicile after they get married. So which
law applies.
The traditional theory which has been used is the dual domicile test. Under this
theory it is stated that capacity to marry will be governed by the law of the
parties and ante-nuptial domicile i.e. each party must have capacity according to
the law of his/her domicile at the time of the ceremony to marry. This has been
applied in a number of cases
Pugh v. Pugh
A British officer, domiciled in England but stationed in Austria, married a

Hungarian girl in Austria in 1946. The girl whose domicile of origin was
Hungarian, had gone to Austria with her parents to escape from Russian
advance. She was only fifteen years of age and therefore, if her capacity had
been governed by English domestic law, the marriage would undoubtedly have
been rendered void by the Age of Marriage Act 1929 which prohibited a
marriage “between persons either of whom is under the age of sixteen.
By Austrian law the marriage was valid, and by Hungarian law it had become
valid in that it had not been avoided before she had attained the age of seventeen.
The wife submitted that the marriage was void for want of capacity, first because
the husband was a British subject with an English domicil and therefore bound
by the 1929 Act. Secondly and alternatively because the essential validity of the
marriage was determinable by English law as being either the law of he
husband’s domicil or the law of the country of the proposed matrimonial home.
Pearce J granted a decree of nullity, holding that the wife was entitled to succeed
on both submissions.
Republic v. Brentwood Registrar of Marriages
Intended Matrimonial Home Test
Under this test parties should have capacity to marry as determined by the law
of their intended matrimonial domicile. This test has been criticised mainly
because it tends to invalidate marriages such that if parties don’t have capacity,
still the marriage will be declared null and void.
While it has been supported by social grounds
Cases which apply to the test include
De Reneville v. De Reneville
Kenward v. Kenward
Radwani v. Radwani
Cheni v. Cheni – prohibited degrees of relationships.
Mohamed v. Knott (1969) 1 Q.B - it can apply to us in Kenya and the issue was
the age of the parties. A Nigerian man married a 13 year old and then left to live
in England with the bride and the marriage was recognised in England because
under their domicile law they could get married
The Sinha Peerage Case

Mohammed v. Knott.
Three exceptions to this rule on essential validity
1. The rule in Sottomayor v. De Barros – this case decided which was an
exception that the validity of a marriage celebrated in England
between persons of whom one has an English and the other a foreign
domicile is not affected by any incapacity which though existing under
the law of such foreign domicile does not exist under English
law.(Kenyan Law). This exception was a way of going round the test
of dual domicile test. In Sottomayer the wife and husband were first
cousins the husband in England and wife in Portugal. Under
Portuguese law marriages between cousins were prohibited in
Portugal but allowed in the UK. The marriage was held to be valid in
the UK.
2. Where the law of the place of celebration is also the law where that
issue as to validity is being heard. It is the law of forum deciding the
issue of validity. In that case one applies the law of the place of
celebration to determine issues of essential validity. That is because if
you apply another law you will be asking a forum to apply law which
is inconsistent with its own laws. Remember if the Lex fori is the same
as Lex loci celebrationiis.
3. If the foreign domicile law that governs the issue of capacity is

repugnant to public policy, it will not be recognised. Therefore courts
will not recognise a foreign incapacity which is of a penal or
discriminatory nature. For example incapacity which is based on
grounds of race, religion or any other classification which
discriminates or penalises a particular section of the population.
Chetti v. Chett (1909) P 67
BARS TO DIVORCE UNDER STATUTORY LAW
The petitioner has to prove that he has not connived with the commission of
matrimonial offence.
There are two bars to divorce if proved to exist divorce will not be granted.
1. Absolute Bars
2. Discretionary Bars.
ABSOLUTE BARS
If an absolute bar is found to exist then the court has no choice but to refuse to
grant the divorce where a discretionary bar is proved the court may or may not
grant the petition.
1. Connivance is the first absolute bar – connivance is where the adultery

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

generally speaking the material event is the inception of the adultery
and not its reputation although connivance at the continuous of an
adulterous association may show that the party conniving must be
taken to have done so at the first. In this case it was stated that the
material event is the inception of the adultery, that is when the
petitioner first knew of the adulterous association, he must have
connived for the adultery to happen.
Godfrey V. Godfrey & Wall (1965)
In this case the court held that a husband petitioner was guilty of
connivance at his wife’s adultery. The wife told the husband that she
was going to live with the co-respondent i.e. Wall. The co-respondent
then came to stay at the matrimonial home. The husband one day after
a drink or two came home and found the wife and co-respondent
embracing each other. He then told them
“if you two want to go to bed together then why the hell don’t you”
which is exactly what the wife and Wall proceeded to do. The next
day the petitioner turned the co-respondent out and chased him out of
the home but the wife and the co-respondent continued with the
association and eventually the wife moved out to live with the co-
respondent. When the husband petitioned for divorce on grounds of
adultery the court in refusing to grant him the decree held that he had
not shown that his initial connivance was not the effective cause of the
subsequent adultery.
2. Condonation: This is the forgiveness of a marital offence and

reconciliation between the parties with full knowledge of all the material
circumstances. Under Section 10(3) adultery shall not be deemed to have
been condoned unless and until conjugal cohabitation shall have resumed.
Henderson v. Henderson the court stated that where the wife had
committed adultery, the essence of condonation is that the husband with
the knowledge of the wife’s offence should forgive her and should
confirm his forgiveness by reinstating her as his wife. The issue is
whether this re-instatement included sexual intercourse or conjugal
cohabitation as provided for under Section 10 (3) and in this particular
case at the time the matter was in court, such intercourse had not taken
place. However the court pointed out the decision in Cramp v. Cramp
(1920) P. 158 the decision in this case was that a husband who has sexual
intercourse with his wife after knowledge of her adultery must be
conclusively presumed to have condoned the offence. Mere forgiveness
does not amount to condonation. For condonation to exist the forgiveness
must be followed by cohabitation and the restoring of the offending party
to their former position as husband or wife. Crocker v. Crocker (1921) P.
25 where a soldier who was serving overseas during the war wrote to his
wife offering to forgive her for having committed adultery when he was
away. The wife accepted the offer but on his return home he changed his
mind and petitioned for divorce. It was held that there was no
condonation because there was no reinstatement.
Commission of a further marital offence will revive condoned adultery or

cruelty. That is where the respondent has committed adultery and cruelty
which is condoned by the petitioner if the respondent commits another
offence then the condoned offence will revive and the petitioner will be
entitled to a divorce on the ground of the condoned act. Beard v. Beard
(1945) 2 All ER and Bertram v. Bertram (1944) P. 59
3. COLLUSION: This is the presenting of a divorce petition by way of
a bargain or agreement between the parties. The reason why this is a bar
to divorce is that true facts will be hidden from the court and in some case
marital offence will be procured or pretended for the purposes of securing
a divorce. Churchward v. Churchward the petitioner declined to divorce
his wife who wanted to marry the co-respondent until she had made a
settlement in favour of the children of the marriage and she agreed to do
so since she wanted to be released from the marriage, deposited some
amount and the petitioner then filed his petition. It was held that this
amounted to collusion.
DISCRETIONARY BARS
1. Unreasonable Delay: Delay that is unexplained may be fatal to a

petitioner’s relief and in Johnson v. Johnson (1903) it was stated that the
reason why courts insist on steps being taken promptly are that it is a
terrible thing that people should go around and about neither married nor
unmarried possibly liable to contract fresh and illegal matrimony and
certainly exposed to the temptation to commit adultery. The court is
saying that once a marital offence has been committed then parties are in a
state of limbo, they do not discharge their usual marital obligations and
the temptation to commit adultery is there and that is why the court wants
them to take steps promptly. In this case the fact that the respondent wife
had become insane and had been in an asylum for many years and that
the husband had been expecting release by her death was held to be a
sufficient answer to a plea of unreasonable delay. In this case the wife just
simply refused to die.
In Binney v. Binney the husband took no steps for divorce until his wife
had been living with another man for 20 years and even so only petitioned
for the purpose of freeing himself to marry another woman. It was held
that there had been culpable delay and the petition was dismissed.
2. Conducing Conduct: This is conduct which conduces the

commission of a marital offence. Therefore cruelty, neglect, desertion or
other misconduct towards a spouse who afterwards as a result commits a
marital offence may bar the petitioner from obtaining a divorce. Lander v.
Lander (1890) and Dixon v. Dixon (1952) classical decision where the wife
refused to agree to intercourse until husband filed for divorce and it was
held that the wife was guilty of conducing conduct.
3. Petitioner’s own Adultery: This receives some special treatment because in
most cases the petitioner’s own adultery is a consequence of the
respondent’s conduct therefore the courts will look at the circumstances to
gauge whether that adultery will bar the petitioner’s petition. In Blunt v.
Blunt the court laid down the considerations that will be taken into
account in exercising its discretion when a petitioner is guilty of adultery
as follows:
(a) The position and interest of any children of the marriage;

(b) The question whether if the marriage is not dissolved there is a
prospect of reconciliation between husband and wife;
(c) The interest of the petitioner and in particular the interests that the
petitioner should be able to remarry and live respectably;
(d) The interests of the party with whom the petitioner has been guilty
of misconduct with special regard to the prospects of future
marriage;
(e) The interests of the community at large to be judged by
maintaining a balance between the sanctity of marriage and
maintenance of a union which has utterly broken down.
Under Rule 28 of the Matrimonial Causes rules the
And a full statement of the facts upon which the petitioner relies for the exercise
of the court’s discretion should also be lodged in court with the petition. Once
the petitioner has proved his ground for divorce and none of the bars has been
proved then the court should grant the divorce decree.
Under Section 15 of the MCA every decree for divorce is in the first instance a
decree nisi which is not to be made absolute until after the expiration of six
months after the pronouncement of the decree. However an application can be
made to expedite the decree absolute within a shorter time when reasonable
grounds are shown. For example where it is shown that a child will be born
illegitimate or for purposes of making financial provisions for children of the
marriage.
The main reason why we have an intervening period of 6 months is to enable

unsuccessful respondents to appeal against the granting of the decree nisi or for
any other person to intervene to show cause why the decree should not be made
absolute.
As soon as the decree nisi is made absolute either spouse is then free to remarry
which is not the case under the decree nisi and under Section 16 of MCA if a
party remarries before a decree nisi is made absolute, then that marriage will be
void.
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.
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 scholars 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 CUSTOMARY LAW
Divorce under Customary law 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.
EXTRA JUDICIAL DIVORCE
This may be 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 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.
MATRIMONIAL PROPERTY RIGHTS
We are concerned with the rights that spouses have over property that they
acquire before, during and on the break down of marriage. We are not
concerned with the property rights on the death of a spouse this is for the Law of
Succession.
There are two systems which obtain on matrimonial property rights
1. Community of Property;
this is based on the assumption that marriage is an equal partnership which has
both a social as well as an economic dimension and that system recognises that
each party to the marriage performs an important role in that social and
economic unit even though their roles may be far in type or in quality. This
system assumes an equality in matrimonial property with each party having an
equal right to the assets of the marriage. In a pure community of interest system,
legal ownership of the matrimonial asset is joint from the time of cohabitation or
marriage. Therefore under the pure community of interest approach at the
celebration of the marriage all the properties that are owned by either spouse are
pooled together and deemed to be jointly owned and this will include any
property that was owned before the marriage by the spouses.
In some legal systems you have a deferred community of property approach and
the joint ownership of property is deferr3ed until the relationship breaksdown.
Therefore under this approach during the currency of the marriage either spouse
may own their own property and use it in any manner that they wish or dispose
of it but in the event of the marriage breakdown all the property they own is then
put together and deemed to be joint property.
In the community of property system in the event of the marriage breaking down
entitlement to that property is regarded as an incident of marriage , it is regarded
as one of those facts arising out of the marriage itself and that property is then
divided equally between the spouses.
This system is common in civil law countries, it is also practised in south African
countries like Lesotho and Botswana while the Deferred Community property
system is common in Scandinavian Countries.
THE SEPARATE OWNERSHIP APPROACH
This approach presupposes that during the subsistence of the marriage, either
spouse may own separate property. However this has not always been the case
in the common law tradition and in fact under common law husband and wife
were regarded as one (doctrine of unity under common law).
According to Lord Denning the common law regarded husband and wife as one
and the husband was that one. This was in a case of William & Glyns Bank vs.
Boland (1979) Ch. D 312 at 332. Under common law all the wife’s property and
income vested in the husband on marriage and a wife could not own property
separate from that of her husband.
In the 18th and 19th century England it was common to have professional
husbands and in Republic v. Smith (1915) 1 Cr. a case involving professional
husband. Husbands married rich women who then died under mysterious
circumstances leaving them all the wealth. With the onset of the industrial
revolution, women started to agitate for involvement in socially and
economically productive work and sought enfranchisement and the solution to
the problem that commended itself was that of separation of property because
the problems in their legal status at the time arose from the legal regime that
applied to married persons. It was therefore thought that if the spouses marital
status no longer affected their property rights then the problem would be solved.
This led to the enactment of the Married Women Property’s Act of 1882. This
Act recognised the right of married women to hold and own property separate
from that of their husbands. This is one of the Acts of general application which
applies to Kenya under the Judicature Act.
However, the paradox was that this system of separate ownership which was
created to protect married women’s rights became a serious injustice especially
when determining matrimonial property rights during marriage breakdown. At
the system of separation failed to deal adequately with the economic realities of
married life and this is because this system insists that entitlement to
matrimonial property be based on evidence of contribution to the acquisition of
that property. Given the different roles of husband and wife in married life, it
meant that especially women’s or wives roles were not legally recognised ie.
Their roles in contributing to acquisition of matrimonial property. It therefore
had the fatal disadvantage of not giving recognition to a wife’s contribution by
way of her services in the home as opposed to those of the husband as the bread
winner.
Basically this is because contribution that was required to be shown had to be

direct or financial contribution and not indirect contribution.
How have courts responded to matrimonial property rights
There are two main ways that courts have used
1. Married Women’s Property Act;
2. Presuming certain equitable interests in the matrimonial property
Section 17 of the MWPA this section provides that in any question between
husband and wife as to the title to or possession of property either party may
apply for an order to the court and the Judge may make such order with respect
to the property in dispute as he thinks fit. It was at one time thought that the
power given to a judge in this section to make such orders as he thinks fit
provided statutory justification for doing what was thought to be just between
the parties without having regard to the technicalities of property law.
However this changed in 1965 before 1965 courts would rely on section 17 to
vary property rights in matrimonial property but after 1965 in the National
Provincial Bank v. Ainsworth the House of Lords was of the opinion that Section
17 only provides a method or a summary procedure for determining proprietary
rights between spouses but the courts cannot vary those rights using Section 17,
courts cannot confer rights which were previously not there. In this case the
husband had deserted the wife and it was conceded that she had a right to be
provided with housing by her husband under what was known as the deserted
wife’s equity. It was also conceded that she could have obtained an injunction
from the court to stop the husband from interfering with her rights to housing.
However, the husband had mortgaged the house without her knowledge and he
subsequently became insolvent. The House of Lords held that her right to
housing was not a proprietary right within the meaning of section 17 and
therefore was incapable of binding the bank to whom the house had been
mortgaged. In other words the wife was relying on section 17 to fight the bank
interst in the house but it was held that her rights could not qualify.
This was followed in later cases
Gissing v. Gissing
Pettit v Pettit
Falconer v. Falconer
Heseltine v. Heseltine
IN Pettit v Pettit the wife purchased the matrimonial home and it was
regisgtered in her name alone. During the cause of the marriage the husband
during his free time undertook to decorate the home and due to this decorations
the value of the house increased. On the marriage breakdown the husband
claimed an interest in that property under Section 17 of the MWPA. The court
held that despite the fact that he had decorated the house which led to an
increase in its value this did not confer upon him a beneficial interest in that
house and this is because it had no jurisdiction to vary the title of the House
under Section 17.
Lord Reid stated as follows the meaning of he Section (17) cannot have altered
since it was passed in 1882. at that time the uncertainty and security of rights in
property were generally regarded as of paramount importance and I find it
incredible that any parliament of that era could have intended to put a spouse’s
property at the hazard of he unfettered discretion of a Judge if the other spouse
raised a dispute about it.
In other words he was stating the position that courts could not vary property
rights under Section 17.
As a result of this the law in England was changed in 1970 under the Proceedings
under the Matrimonial Property and Proceedings Act of 1970 under Section 37 it
is provided that where a husband or wife contributes in money or money’s
worth to the improvement of real or personal property in which either or both of
them have a beneficial interest the husband or wife so contributing shall if the
contribution is of a substantial nature be treated as having then acquired by
virtue of his/her contribution a share or an enlarged share as the case may be in
that beneficial interest. The important thing is that this section recognises
indirect contributions to the property.
Kenya still relies on section 17 of the MWPA and it as upheld in the decision of
National Provincial that it does not confer jurisdiction on the court to vary title
but only to determine rights in matrimonial property.
Kenyan courts in response to the inequity caused by this approach is that they
have been able to interpret section 17 to enable them control the way that
property is used without departing from the principle that they cannot alter title.
They have been able to give orders as to the way the property is to be used
without necessarily altering title. In most cases they have ordered that the
property be sold and directed on how the proceeds of the sales are to be divided.
The court’s position has evolved over time in Kenya in response to the changing
social and economic realities.
Section 17 was first substantively disccused in Karanja v. Karanja. In this case
the wife brought an action under section 17 and she alleged that she had made
financial contributions towards the purchasing of the matrimonial property.
Tehj husband on the other hand maintained that even if that was the case under
Kikuyu Customary law a woman was not permitted to own property and
therefore his wife’s claim could not stand. The couple had married under the
African Christian Marriage and Divorce Act and throughout the cause of the
marriage the wife made substantial contributions to the running of the
household. She also assisted her husband in paying school fees for the children
and at one time when the husband was away for 5 years studying abroad she
was the one who was running the home. In support of her claim of financial
contribution she brought evicdence to show that every month her salary went to
her husband’s account who would then withdraw money for her personal use.
The property in dispute was a farm in Karen where the matrimonial home was
also situated and the wife claimed that she was a joint owner of this property.
The husband met another woman chased away his wife who was forced to live
in the servants quarter. Although the couple had other properties the wife
claimed that she was entitled to remain in Karen since she is the one who had
developed it.
The court then undertook to determine the amount of financial contribution that
had been made by the wife towards accumulation of the entire matrimonial
property and found that her contribution amounted to one third of the entire
value of the matrimonial property. The matrimonial property was valued at
900,000 shillings and she was awarded 300,000 shillings because of her one third
financial contribution.
The husband was advised to sell one of his other properties and give the
proceeds to the wife. The court was not varying any existing title and only
determined what her contribution was and then give her that contribution.
Kivuitu v. Kivuitu
The marriage in this case was a statutory marriage and the husband and wife
both made financial and indirect contributions to the acquisition of the
matrimonial home which was registered in their joint names. On the institution
of divorce proceedings the wife applied that the matrimonial home be sold and
the proceeds be shared out equally. The court held that on the basis of the wife’s
contribution, the parties were entitled to the property in equal shares and
ordered that the property be independently valued and the husband pays to the
wife as sum equal to half of that valuation.
The court is not varying any title but determining the interests of spouses in the
property.
In these two cases, two issues were not addressed
Did section 17 of MWPA apply to marriages under other systems of family law?
did it apply to marriages under Islamic or Customary Law?
It did not address the question whether indirect contributions alone can suffice
for orders under Section 17. These issues have been addressed in two recent
cases
Fatia Essa v. Mohamed Alibhai
Tabitha Wangeci Nderitu v. Nderitu
Fatia Essa was a Muslim marriage, the wife went to court asking for an equal
share in the matrimonial property to which she had contributed. She proved her
financial contribution and the court awarded her 50% of that property. This is
the authority for the position that Section 17 applies to Islamic Marriage.
In Tabitha, this was a customary law marriage and the wife’s contribution was
indirect, and she was awarded 50% of the Matrimonial Property.
They stand by actual valuation of ones contribution so that ones interest is

proportional to the contributions that one has made. There is a presumption of
equality of shares when a contribution is as such. In Nderitu it was an appeal
where the court of appeal held that she was entitled to an equal share. We are at
the stage where spouses are now entitled to an equal share of the property.
Muthembwa v. Muthembwa Civil Appeal No. 74 of 2001
In this case it was held that a spouse who has contributed to the increase in
value to property that is inherited by or gifted to the other spouse before the
marriage will be entitled to a share of the increased value under Section 17 of the
MWPA. The wife claimed that one of the properties she was claiming was a
property that the man had inherited from the father before they got married.
Wife claimed she had increased the value of that land by improving it and it was
held that she was entitled to 50% of the value of the improvement of that
property.
The other method that can be used to determine matrimonial property is by

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

property in the name of the other spouse, the equitable rule is that he intends to
make an advancement to her. That is that property was intended to be a gift to
the other spouse. This presumption normally arises when there is a special
relationship between the parties, like husband/wife and parent/child it is
intended that transfer of property is a gift. However both presumptions are
rebuttable. One can bring evidence to show that transfer of beneficial interest
was never intended. However evidence will not be admissible if it involves an
improper or fraudulent motive e.g. if a person registers property in the spouses
name to prote4ct it from creditors, then one cannot use this evidence to rebut the
presumption of resulting trust or advancement.
Sarah Wanjiku Mutiso v. Gideon Mutiso
In this case the Respondent who was the husband bought a farm through a loan
in 1967. in 1971 he was jailed for sedition for a period of 9 and a half years. That
left the Appellant who was the wife to look after the family and to manage the
matrimonial property. During the cause of the jail time, the wife was unable to
meet the loan repayments and she was also unable to secure a loan using her
husband’s property. She then requested the husband to transfer the property
into her name so that she could be able to secure a loan and the husband
reluctantly transferred the property into her name. the husband was
subsequently released from prison but soon thereafgter the appellant left him
taking with her or the moveable property and also claimed that she was the sole
owner of the property which had been transferred to her name. she claimed that
the transfer was a gift made to her by her husband and as such he had no claim
to the property.
It was held that the transfer of the property into her name was solely for the
purpose of enabling the wife to carry out the husband’s business while he was in
jail and this rebutted the presumption of advancement.
RIGHTS AND DUTIES OF CHILDREN
PARENTAL RIGHTS AND DUTIES OVER CHILDREN
Under common Law a parent was under an obligation to take care of his child
during marriage and this obligation was only on the part of the father. In the
event of marriage break-down the father always had a right to custody unless he
forfeited it through immoral or cruel conduct. This was so stated in
Re Agar Ellis [1883] 24 Ch. D 317
The position under common law was changed by statute which have watered
down the exclusive rights of fathers over children. One finds that common law
started from a position of paternal preference when it came to rights and
responsibilities over children. The factors which weakened this paternal
preference included an increased focus in children’s welfare as the primary
consideration and also with the effects of the industrial revolution fathers
increasingly sought work outside the home while the mothers remained at home
as the primary caretakers. The resultant division of family responsibilities
influenced custody decision and the paternal preference was gradually replaced
by a maternal preference.
This maternal preference was based on the tender years doctrine which was
intended to apply to children under the age of six years and was invoked to give
mothers custody of children of tender years. The assumption here was that in
the interest of the welfare of children mothers were better suited to nurture and
raise children of tender years.
This particular maternal preference also obtained in Kenya for a while and this
was under the Guardianship of Infants Act which has also been repealed it
provided that a court in awarding custody had to ensure that the child’s welfare
was of paramount consideration and if that child was of tender years, then
custody was given to the mother to protect the child’s welfare and for this
position
Karanu v. Karanu
Githunguri v. Githunguri
The maternal presumption of custody remained in place for many years and has
only recently been substituted by the standard of the best interests of the child.
3. Best Interests of the Child
under this standard, custody decision are now based on considerations of the
child’s needs and interests rather than based simply on the gender of the parent.
Children Act is the one that repealed
Under common law parental custodial rights include the power to control a
child’s education, the power to control the discipline of the child, the power to
determine the child’s religion, the power to control any property belonging to the
child until the child attains majority age, the right to be the child’s legal
representative if a suit is brought against or on behalf of the child and the right to
decide on the type of medical treatment to be given to the child including the
right to consent to such medical treatment. Those were the parental rights that
obtained under Common Law.
The leading case on custody in common law is
J v. C (1970) A.C.
In this case the parents of a child were unable to look after him and offered him
for foster parenthood. After sometime their financial situation improved and
they sought to have the child returned to them. It was held that in deciding
custody of children certain factors are taken into account in common law.
Firstly the court has to have regard to the wishes of the natural parents that is the
biological parents,
Secondly the court stated that where custody is being claimed by both natural
parents i.e. in the event of a divorce then the court has to consider the conduct of
both parents and determine firstly whether they live an immoral life. Secondly
whether their conduct is cruel and thirdly whether the parents will have enough
time to look after the child. The final consideration is that the courts in awarding
custody prefer that all children go to one parent and they are hesitant to divide
the children among the parents. Common Law does not encourage split custody.
Under Common Law parental custodial rights ceased to exist once a child has
attained the age of discretion which was 18 years for girls and 15 years for boys.
DUTIES UNDER STATUTORY LAW
The main statue is the Children’s Act although we have provisions in other Acts
including the Penal Code which touch on custody. In the Matrimonial Causes
Act Section 30 empowers the court to make decisions as to custody of children in
divorce proceedings and also as to maintenance and education of children and
under Section 3 of the Subordinate Court and Separation of Maintenance Act a
married woman applying for a separation order can also be given orders as to
legal custody of the children of the marriage. However these two acts don’t give
details as to how custody is to be determined.
The Penal Code also has provisions in to custody in that it creates certain
offences arising from interference with custody under Section 143 where it is an
offence for anybody to unlawfully take away an unmarried girl aged below 16
years from the custody or protection of their parents. Section 174 makes it an
offence for a person to deprive a parent or guardian of the custody of the child
aged under 14 years. This is referred to as child stealing.
CHILDREN’S ACT
This Act was enacted to consolidate all legislation that affects children and to
give effect to certain international instruments which Kenya had ratified on the
rightds of children i.e the convention on the rights of the child.
The Act provides for certain concepts which touch on rights and duties of
parents over children
(a) Under Section 23, the Act provides for parental responsibility and it
defines parental responsibility to mean all the duties, rights, powers,
responsibilities and authority which by law a parent of a child has in
relation to the child and the child’s property. It further expounds on
the duties and rights. On duties it includes the duty to maintain the
child and in particular to provide him with an adequate diet, shelter,
clothing, medical care and education and guidance. There is also a
duty to protect the child from neglect, discrimination and abuse.
(b) The rights on the part on the parent include the right to give parental
guidance in religious, moral, social cultural and other values. The
right to determine the name of the child, the right to appoint a
guardian in respect of the child, the right to receive administer or
otherwise deal with the property of the child for the benefit of and in
the best interests of the child. The right to arrange or restrict the
immigration of the child from Kenya. And upon the death of the child
the right to arrange for the burial or cremation of the child.
Section 90 -101 of Children’s Act - the presumption is that maintenance and the
presumption is that maintenance of children is the joint responsibility of both
parents and maintenance orders under the Act can be made whether or not
matrimonial proceedings have been filed.
Read sections especially Section 94 which provides for considerations that the
court will take into account in determining maintenance.
Insofar as custody is concerned the Act recognises 3 different types of custody

Under section 81
1. It provides for legal custody and under the custody legal custody is said
to mean those rights and duties in relation to the possession of a child
which are conferred upon a person by a custody order; in effect what
legal custody does is to confer upon a person the right to make major
decision about the child’s health, education and welfare. All these duties
and rights are given under legal custody.
3. It also recognises actual custody and this means the actual possession
of a child.
4. Joint Custody – Joint physical custody because the Act state4s that the
actual physical custody of a child can be shared with one or more
persons. Also implied in that section is sole custody because it is quite
possible under the Act for one person to have both the legal and actual
custody of a child.
5. Care and control of a child – this is in respect of a person who is in
actual possession of a child but who does not have custody over that
child. The Act imposes an obligation on that person who has care and
control to safeguard the interests and welfare of that child.
In addition to custody the court can make certain orders under the Act
ACCESS ORDERS
RESIDENT ORDERS Section 114 orders
An Access Order requires a person with whom a child is residing to allow the
child to visit or to stay periodically with a person named in the order or to allow
such person to have some other contact with the child. This is what is referred to
as visitation rights in other jurisdictions. One proviso in the Act is that an access
order shall not be made in relation to a child in respect of whom there is already
a care order in place.
Care orders are given under Section 132 and what they basically do is to entrust
the care and possession of a child to a person who is not the parent, guardian or
custodian of the child or to an institution which is appointed by the court. This is
usually for the protection of the child especially for those children who are in
need of care and protection e.g. if they have been exposed to domestic violence,
subject to female genital mutilation and so forth.
Residence orders are given to a person and shall require the child to reside with
that person and also provide for arrangements to be made to facilitate the
residence of the child with that person. Such an order will impose certain
conditions and define the duration of residence and so forth.
WHO CAN BE GRANTED CUSTODY UNDER THE ACT
Custody can be granted to parents of the child, guardian or it can be granted to
any person who applies for custody with the consent or a parent or guardian and
that person must have had actual custody of the child for a period of at least 3
months preceding the application.
In determining consideration of custody, the court is required to have regard to

certain factors or certain principles
1. The conduct and wishes of the parent or guardian of the child;
2. the ascertainable wishes of the relatives of the child;
3. ascertainable wishes of any foster parent or any person who has had
actual custody of the child for the last 3 years preceding the
application;
4. ascertainable wishes of the child
5. whether the child has suffered any harm or is likely to suffer any harm
is the order is not made.
6. Customs of the community to which the child belongs;
7. religious persuasion of the child;
8. whether any other order has been made in relation to the child that is
the care order, supervision order, protection or exclusion order and
whether that order remains in force;
9. the circumstances of any siblings of the child and of any other children
of the home; and
10. best interests of the child. A definition of the best interests of he child
is given under Section 4(3) (4) of the Act. That section firstly says that
in all actions concerning children the best interest of the child shall be
of primary consideration and in (3) it is stated that any action will be
considered to be in the best interest of the child if it is calculated to
firstly safeguard and promote the rights and welfare of the child. If it
is aimed at conserving and promoting the welfare of the child and if it
is aimed at securing for the child such guidance and correction as is
necessary for the welfare of the child and in the public interest. (this is
a nebulous definition and leaves a lot to the discretion of the court to
determine what is in the best interests of the child, said to be a
disadvantage of these standards, but it has also been argued that it has
its own advantages the most important being that it is now focussing
on the needs of the child, which is of paramount consideration but it is
said that it is difficult to apply since there is no uniformity. If depends
on different factors and on a case to case basis.
Finally the Act in cases of custody on divorce the Act specifically provides
under Section 83(3) that in any case where a decree for judicial separation or
divorce is pronounced, if the court pronouncing the decree finds the parent
by reason of whose misconduct the decree has been given is unfit to have
legal custody, then the parent so declared unfit shall not upon the death of
the other parent be entitled to legal custody of the child except with the leave
of the court. In other words the conduct of parents just like in Common law
is critical when granting custody of children.
Read custody under customary law and custody of children under Islamic
law
Janet Kabeberi

Family Law: Class Notes University of Nairobi

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FAMILY LAW

1. It is the basic component of a society organisation; Article 16 of the

THE OBJECTS OF FAMILY LAW

Major functions of family law

HISTORY OF THE FAMILY AS AN INSTITUTION.

Family law as an institution also has a history.

Engels says that marriage groups were separated according to generations so

Restrictions on sexual relations are extended so that there is a progressive stage

This is different from the pairing family in two ways

HISTORICAL DEVELOPMENT OF FAMILY LAWS IN KENYA

THE NATIVE CHRISTIAN MARRIAGE ORDINANCE IN 1904

The Native Christian Marriage Ordinance applied only to the marriage of

THE ENACTMENT OF THE DIVORCE ORDINANCE

In 1906 the Mohammedan Marriage & Divorce Registration Ordinance was

REPORT OF THE COMMISSION ON THE LAW OF MARRIAGE AND

There is an appendix of a Marriage Bill proposed in 1996 which sought to

SOME PROBLEMS OCCASSIONED BY MULTIPLICITY OF FAMILY LAWS

CONTINUED APPLICATION OF ENGLISH FAMILY LAW

b. Presumption of Advancement: This normally arises in a family

The court ruled in favour of Mutiso and the wife appealed.

The Appeal was dismissed.

c. Presumption of Marriage: This arises where a man and woman cohabit

MARRIED WOMEN’S PROPERTY ACT OF 1882

1. The MWPA was a statute of general application in England on 12

2. Section 35 of the Marriage Act which provides that no marriage will be

A major problem is what happens when a law undergoes subsequent changes,

PROBLEM OF CHANGING ONE’S FAMILY LAW FROM ONE SYSTEM TO

In this case an English man married a Botswana Woman under Botswana

Ex Parte Mir- Anwarrudin (1917)

Had a similar ruling with Re Bethel

A Hindu polygamous marriage was recognized for purposes of nullifying in

Sinha Peearage Case [1946] 1 All E.R. 263 P.C

A.G Of Ceylon v Reid [1965] A.C. 720

Parkasho v. Singh [1967] 1 All E.R.

A statute converted Sikh marriage from being polygamous marriage to

Where there is a second ceremony of marriage that is designed to change one

Ohochuku V. Ohochuku [1960] 1 All E.R. 253

In our situation one can change ones family law

Ruenji and Ogola – facts are similar

Other ways in which family law might be changed

Change of Family Law in other jurisdiction - cited under conflict of marriage

Manjany v Ndongo (1967) JAL 13

Mokhotu v. Manyaapelo - Lesotho

These cases dealt with change of family law system,

These cases - most of commonwealth jurisdiction have basically adopted the

In Manyaapelo a second customary law marriage between the parties was

CONFLICTS THAT ARISE

The conflicts that arise are in 3 main respects

1. Conflict between statutory and other systems of family law because of

There are situations such as Re Ogola arising or stories of people having

2. Different Customary Law systems especially African customary law

FOUR DIFFERENT SYSTEMS OF FAMILY LAW

LEGAL INCIDENCE OF AGREEMENT TO MARRY

Not every agreement to marry will result in a marriage.

Basically under statutory law an agreement to marry is said to exist under

Being essentially a contractual relationship, all the usual contractual

Shaw v. Shaw (1954) 2 Q 3

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

Cohen v. Seller (1926) 1 K.B. 536

Larok v. Obwoga (Ugandan Case)

FAZALDIN V. DIN MOHAMMED

Agreement to marry under customary law