Following the adoption of a new Constitution in 2010, Kenya embarked on an extensive process of law reform in order to give effect to the provisions of the Constitution. Accordingly, in 2014, two main statutes were adopted in the area of family law: the Matrimonial Property Act and the Marriage Act. In addition, parliamentary discussion of a Bill on domestic violence was underway as of March 2015. The main outcome of the Marriage Act is the consolidation of family laws that were previously covered in multiple statutes, customary law, and common law in one Act. The Matrimonial Property Act is the first Kenyan legislation on the subject, and is therefore a critical development in Kenya’s family law. The new family laws embrace a number of significant developments at the national and international levels in relation to matrimonial relations. However, the new laws also raise concerns in a number of areas of family law including; the equality of men and women in marriage, the capacity of persons with disabilities to consent to marriage, the rights of spouses to matrimonial property, kinds of marriage, and registration of marriages. This article discusses the approach of these laws to selected issues in marriage and matrimonial property, and highlights areas of concern in this regard.
Marriage in pre-colonial Kenya was mainly celebrated and governed by customary rules and practices. During the colonial period, several statutes were introduced and applied alongside some English laws, customary law, and religious norms. As a result, marriage was subject to multiple legal regimes as contained in the Marriage Act, Christian Marriage and Divorce Act, Mohammedan Marriage, Divorce and Succession Act, Hindu Marriage and Divorce Act, and customary law. 11 x Chapters 150, 151, 156, and 157 of the Laws of Kenya respectively (now all repealed). The principles of common law were also applied in cases where written law did not apply. For instance, where parties had co-existed in a manner sufficient to show that they were married to one another but where conditions for a marriage under any of the five regimes of marriage law in Kenya was not fulfilled, Kenyan courts were prepared to apply a presumption of marriage based on common law, and in terms of which the parties were deemed to be husband and wife. 12 x Human Rights Watch, Double Standards: Women’s Property Rights Violations in Kenya, Vol. 15, No. 5(A), 2003, p. 9. Examples of the application of the presumption include the case of Ann Wanjiru Njoroge v. Newton Gikaru Gathiomi and 2 others [2007] eKLR; and Beatrice Njeri v. Lawrence Njenga Kanithi [2005] eKLR.
The multiplicity of laws was a central characteristic of colonial rule, not unique to family law, and continued in independent Kenya. A plurality of laws was deemed necessary in order to recognise and retain the diversity of the population represented in the country on the basis of race, religion, and custom. 13 x W. Kamau, ‘Law, Pluralism and the Family in Kenya: Beyond Bifurcation of Formal Law and Custom’, International Journal of Law, Policy and the Family, Vol. 23, 2009, p. 133. Indeed, there were similar plural laws in other spheres of law such as laws relating to land where at least seventy five legislations were applicable, making it difficult to enforce or adjudicate women’s land rights. 14 x FIDA (Kenya) & International Women’s Human Rights Clinic Georgetown University Law Centre (hereinafter FIDA & GULC), Supplementary Report to the Kenyan Government’s Initial Report under the ICESCR, 2008, p. 12. The multiplicity of laws exacerbated women’s marginalisation because women were at the intersection of state, customary, and religious legal norms all of which were inherently discriminatory and premised on gendered notions of the roles of men and women. 15 x Kamau 2009, p. 133; Oduor & Odhiambo 2010, pp. 2, 5. Also, plural normative regimes of family law meant that that equal justice was not feasible across the country. 16 x Oduor & Odhiambo 2010, p. 9. Hence, one of the fundamental challenges of marriage law reforms in the period after the adoption of a new Constitution has been the potential to have a universally applicable law that takes into account the interests of various groups without undermining equal rights as set out in the Constitution and international law. It has been argued that previous recognition of multiple regimes in response to diversity in fact entrenched the English or statutory standard through restrictions on the application of the other regimes, at the expense of other systems of personal law. 17 x Kamau 2009, p. 138.
Excluding the Mohammedan Marriage Act, the statutory laws on marriage did not address the property rights of parties in or at the dissolution of marriage. Consequently, the Married Women’s Property Act of 1882 (MWPA) remained applicable in the determination of parties’ rights to matrimonial property. 18 x According to the Judicature Act, Section (3) (1) (c), where written laws of Kenya do not extend or apply, the substance of the common law, the doctrines of equity and the statutes of general application in force in England on the 12th August, 1897, and the procedure and practice observed in courts of justice in England at that date would be applied in Kenya. This provision is regarded as the reception clause. The significant tenet of the MWPA in this regard was the recognition of married women’s capacity to own property separately before and in marriage, and to contract in their own name without need for the authorisation or trusteeship of the husband. 19 x Married Women’s Property Act, Section 1. The Act further provided a basis for parties to a marriage to seek the court’s determination of their respective rights at the dissolution of marriage. Section 17 of the Act provided that,
In any question as to between husband and wife as to the title to the possession of property, either party … may apply by summons or otherwise in summary to any judge of the High Court … and the Judge of the High Court … may make such order with respect to the property in dispute, and as to the costs of and consequent on the application as he thinks fit.
Several provisions of the Constitution are relevant to family law in Kenya. First, the Constitution recognises the family as the core unit of society and provides in this regard that the “family is the natural and fundamental unit of society and the necessary basis of social order, and shall enjoy the recognition and protection of the State”. 32 x Constitution, Section 45(1). It further establishes the equality of all parties in marriage, stating that “parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage”. 33 x Constitution, Section 45(3). It is argued that this provision ought to apply to matrimonial property as to other areas of equality of spouses. 34 x Oduor & Odhiambo 2010, p. 25. The Constitution further recognises marriages concluded under any tradition or system of tradition, religious, personal, or family law so long as such systems are consistent with the Constitution. 35 x Constitution, Section 45(4).
Notably also, the Constitution provides that:
the provisions of this Chapter on equality shall be qualified to the extent strictly necessary for the application of Muslim law before the Kadhi’s courts, to persons who profess the Muslim religion, in matters relating to personal status, marriage, divorce and inheritance. 36 x Constitution, Section 36.
The process of the drafting and parliamentary discussion of the Matrimonial Property Act was concurrent with the Marriage Act, hence some of the underlying attitudes regarding spousal relations and gender are evident in both Acts. The Matrimonial Property Act provides for the rights and responsibilities of spouses in relation to matrimonial property and is the first Kenyan legislation to address matrimonial property. The gap left by the absence of a specific legislation on matrimonial property was/is filled by principles of common law, equity, and the MWPA. 40 x Oduor & Odhiambo 2010, p. 11. Kenyan courts, cognisant of the gap left by the absence of a law, had called for parliament to adopt the relevant laws to address matrimonial property rights. 41 x The Court of Appeal in Kamore v. Kamore called upon parliament to adopt a law to regulate matrimonial property disputes. The same call was reiterated in the Echaria v. Echaria case.
A number of issues emanate from the new legislations. These include non-recognition of non-heterosexual unions, the requirement of registration for all marriages, changes in the preconditions for polygamous unions, and the recognition of pre-nuptial agreements. Also, the approach of the Marriage Act to disability is worth mentioning, while the issue of contribution in matrimonial property is also highly contentious.
According to the Marriage Act, for a marriage to be recognised in Kenya, it has to be one of five kinds: Christian, civil, customary, Hindu, or Islamic. 42 x Marriage Act, Section 6. While Christian, civil, and Hindu marriages are monogamous in nature, customary and Islamic marriages are presumed to – potentially – be polygamous. 43 x Marriage Act, Section 6(3). The recognition of the five kinds of marriage under the new Act is in fact not new since the same kinds were recognised and legislated in the defunct Acts. Nevertheless, the new Act clarifies the relationship of each of the marriages to one another, as well as the pathways for the conversion from one form to another. One such example is the provision that parties to a potentially polygamous union can convert the marriage into a monogamous one on condition that they both agree to the conversion and that the marriage is not yet polygamous. 44 x Marriage Act, Section 8(1) & (2).
The Marriage Act reiterates the equality of all parties to a marriage in tandem with the Constitution. The Act provides in this regard that “parties to a marriage have equal rights and obligations at the time of marriage, during the marriage, and at the dissolution of marriage”. 45 x Marriage Act, Section 3(2). However, in as far as there is deference to customary or religious laws in some marriages, such equality is not guaranteed, especially for women.
The Marriage Act’s recognition of polygamy 46 x Marriage Act, Section 6(3). is consistent with the demographic realities of Kenya because approximately 10% of Kenya’s population are classified as Muslim, 47 x See (accessed 15 March 2015). while a significant majority of Kenyans live by the tenets of customary law, especially in matters of personal law. 48 x Customary law is predominantly applied in the rural areas where approximately 70% of the population lives. See (accessed 20 March 2015), p. 2. Accordingly, polygamy is widespread in practice and the failure to recognise the practice as a legal institution has the potential to disenfranchise a significant number of people in the country, particularly in the enforcement of their rights in matrimonial property. Indeed, polygamy is one of the major causes for the disinheritance of women in Kenya, thus the reason that women’s rights activists were discontent with the Act’s failure to outlaw polygamy. The CEDAW Committee has also, prior to the adoption of the Constitution, called upon Kenya to outlaw polygamy in favour of monogamous marriages with the view that polygamy negatively impacts on the rights of women. 49 x CEDAW Committee, ‘Concluding Observations on the Elimination of Discrimination against Women: Kenya’, CEDAW /C/KEN/CO/7, 2011, paras. 17, 45 & 46. The justifiability of polygamy has to be considered against the Constitutional rights to equality and non-discrimination on various grounds including religion, belief, and social origin, 50 x Constitution, Section 27(4). and the freedom of religion including the right to practice the teachings of such religion individually or in community. 51 x Constitution, Section 32(1) & (2).
Following the lead of the Constitution, 52 x Constitution, Section 45(2) provides that every adult has a right to marry a person of the opposite sex. the Marriage Act provides that “marriage is the voluntary union of a man and a woman whether in a monogamous or polygamous union….” 53 x Marriage Act, Section 3(1). This provision effectively outlaws any other marriage except heterosexual adult marriages. During the parliamentary discussion of the Act, the potential of allowing homosexual marriages was specifically pointed out as a loophole that needed to be sealed, leaving no room for speculation as to the intention and sentiments of the legislators. 54 x The Hansard 2014, pp. 34 & 70.
The Marriage Act further sets the minimum age of marriage to eighteen, thereby outlawing child marriage. 55 x Marriage Act, Section 4. The violation of this provision leads to a sentence of a maximum of five years or a fine. 56 x Marriage Act, Section 87. This provision is an essential safeguard for children in a country where the rate of child marriage is at approximately 26% nationally, and as high as 47% in some parts of the country. 57 x See ‘UNICEF Statistics: Kenya’ available at (accessed 20 March 2015). It is nevertheless imperative to acknowledge that despite the existence of other laws prohibiting child marriage before the Act, 58 x The Children Act of 2001 prohibited ‘early marriage’ as a form of harmful cultural practice. See Section 14 of the Act. child marriage was unabatedly perpetuated under customary and religious law. Hence, while the express and universal prohibition of such marriages is a welcome development, the optimism on the potential of the provision to guarantee protection of children ought to be considerably tempered.
The Marriage Act contains a number of provisions which are clearly out of step with recent developments in the context of disability rights, particularly intellectual disability. The Act provides that a marriage is voidable if at the time of the marriage and thereafter either of the parties “remained subject to recurrent attacks of insanity”. 59 x Marriage Act, Section 12(a). Where a party “at the time of the marriage and without the knowledge of the petitioner, the other party suffers recurrent bouts of insanity” then the other spouse is entitled to an annulment of the marriage. 60 x Marriage Act, Section 73(1)(g). The Act further provides that one of the reasons upon which a marriage may be considered irretrievably broken down and hence eligible for dissolution is if a spouse
suffers from incurable insanity, where two doctors, at least one of whom is qualified or experienced in psychiatry, have certified that the insanity is incurable or that recovery is improbable during the life time of the respondent in the light of existing medical knowledge. 61 x Marriage Act, Section 66(6)(g).
The foregoing provisions have, besides the obvious terminological lag behind currently accepted terms such as intellectual disability or mental illness where appropriate, the effect of emphasising disability as a medical problem and thereby perpetuating the stigma and abuse often associated with a purely medical approach to disability. The approach of the Act does not pay attention to the responsibility of the individual’s social environment to mitigate the effects of the impairment on their life. These provisions are retrogressive and a breach of the Convention on the Rights of Persons with Disabilities which Kenya has ratified and which calls for non-discrimination of persons with disabilities in the context of marriage and family. The Convention specifically calls for the recognition of the rights of persons with disabilities “who are of marriageable age to marry and to found a family on the basis of free and full consent of the intending spouses”. 62 x UN Convention on the Rights of Persons with Disabilities, Art 23(1)(a). The provisions of the Act also contravene the Constitution in this regard in as far as non-discrimination on the basis of disability.
The grounds for dissolution of marriage vary from one kind of marriage to the other, though some grounds such as cruelty, desertion, adultery, and irretrievable breakdown are common to all regimes of marriages except Islamic marriages. As previously highlighted, the dissolution of the latter is governed by Islamic law. While Civil and Hindu marriages can be dissolved without the need for recourse to any other mechanism of dispute resolution, parties to a Christian marriage are encouraged to seek reconciliation from the church bodies where the marriage was celebrated, while parties to the customary marriage are urged to pursue traditional dispute resolution mechanisms that are in conformity with the Constitution and to file a report of such process with the courts. 63 x Marriage Act, Sections 64 and 68. Civil marriages however, except if voidable, cannot be dissolved before the end of three years from the date they are celebrated. 64 x Marriage Act, Section 66(1).
The Matrimonial Property Act refers to matrimonial property as the matrimonial home and household goods therein, as well as movable and immovable property that is jointly owned or acquired during the subsistence of the marriage. 65 x Matrimonial Property Act, Section 6. The Act further recognises the rights of parties to enter an agreement to determine their property rights before marriage. 66 x Marriage Act, Section 6(3). The latter provision provides the legal basis for prenuptial agreements, though such agreements can be nullified by the court if found to be influenced by fraud, coercion, or if they are manifestly unjust. Prenuptial agreements, once entered in accordance with the regulations under the Act, preclude the application of general provisions of the Act in relation to spouses’ entitlements to matrimonial property.
Recognition of prenuptial agreements is a new development in Kenya, and Kenya is now one of the few African countries to have such a provision. The other countries with similar provisions include South Africa and Ethiopia. 67 x See the Ethiopian Revised Family Code of 2000, Chapter 3, Section 3; and Section 21 of the South African Matrimonial Property Act of 1984. The provision is also a marked departure from English law, which despite having governed matrimonial property causes in Kenya for so long does not currently strictly recognise enforceable prenuptial agreements. 68 x UK Matrimonial Proceedings and Property Act 1970 gives courts considerable discretion to vary prenuptial and post nuptial agreements in the interests of the parties or children of the marriage. See section 4 of the Act. Nevertheless, following the UK Court’s decision in Radmacher v. Granatino, there is a growing acceptance of prenuptial agreements and their potential to be upheld in UK courts. 69 x Radmacher (formerly Gratino) v. Gratino [2010] UKSC 42. In the case, the court stated that:
the court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to the agreement. 70 x Radmacher v. Gratino, para. 75.
ownership of matrimonial property vests in the spouses according to the contribution of either spouse towards its acquisition, and shall be divided between the spouses if they divorce or their marriage is otherwise dissolved. 71 x Matrimonial Property Act 2013, Section 7.
In effect, the Act reintroduces the need to establish a spouses’ extent of contribution in the determination of their respective entitlement in the matrimonial property. This is significant because before the Act, the approach to the determination of a spouses’ entitlement, particularly a wife’s contribution was contested. The general approach was set out in case law including the Kivuitu v. Kivuitu 72 x Kivuitu v. Kivuitu [1991] KLR. and the Echaria v. Echaria 73 x Peter Mburu Echaria v. Priscilla Njeri Echaria [2007] eKLR. cases. In the Kivuitu case, the Court of Appeal was of the view that matrimonial property ought to be presumed to be jointly equally owned between the wife and husband, and that non-monetary contribution ought to be taken into account when determining the parties’ contribution. As a court of appeal decision, the Kivuitu case was binding on subsequent decisions of the lower courts. Accordingly, subsequent decisions proceeded on the basis of a rebuttable presumption of equal entitlement of spouses unless equal entitlement was expressly precluded. The presumption of equal entitlement however only applied to matrimonial property that was jointly owned and registered in the names of both spouses. 74 x Essa v. Essa Civil Appeal 101 of 1995 (Unreported); Mtembwa v. Mtembwa; and Kamore v. Kamore [2001] 1 EA 8.1.
The precedent in the Kivuitu case was however definitively reversed by the Echaria case which determined that except in cases of joint ownership in which ownership could be presumed equal, the determination of the respective entitlements had to be determined case by case and respective contribution has to be established. The Echaria case was the culmination of a strong tide against the presumption of equal contribution, which started in the Kimani v. Kimani case. 75 x Kimani v. Kimani [1995] eKLR. There were highly gendered and discriminatory undertones in most of the jurisprudence in this regards as was epitomised by the words of one judge who stated that:
…. a wife has to show ….that she contributed directly or indirectly to the acquisition of the assets. It is not enough for her to simply show that during the period under review she was sitting on the husband’s back with her hands in his pockets. She has to bring evidence to show that she made a contribution towards the acquisition of the properties. That is a burden she has to discharge. 76 x Tabitha Wangechi Nderitu v. Simon Nderitu Kariuki (1997) Civil Appeal No. 203 (NRB).
