MOI

FACULTY OF LAW

BACHELOR OF LAWS PROGRAMME (LL B)

CLS 201 AND 305: FAMILY LAW

[EVENING PROGRAMME]

NAME: REGISTRATON NO: SIGNATURE:

JUSTUS A. AMITO 1033055

Question.

In respect to Civil, Christian and Hindu marriages, the Kenyan Marriage Act, 2014 borrows
heavily from English Common Law where marriage, as encapsulated by Hyde v Hyde, is a
private agreement between one woman and one man to the exclusion of all others. The Act
also makes provisions for African Customary Marriages which are, by and large, a
communal affair that is signified by protracted negotiations, customary rites and marriage
consideration.

The aforementioned fundamental differences notwithstanding, there are significant points

of convergence between Christian and African Customary Law marriages in Kenya. Discuss
this assertion in the context of the essentials of a valid marriage, citing relevant constitutional
provisions, statutes, case law, and customary law practices. [20 MARKS]

ANSWER;

Marriage may be defined as "the legal relationship between a husband and wife". Black's Law

Dictionary defines Marriage as “the civil status of one man and one woman united in law for life,

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for the discharge to each other and the community of the duties legally incumbent on those

whose association is founded on the distinction of sex.”1

Further, the Marriage Act2 defines marriage as” the voluntary union of a man and a woman whether

in a monogamous or polygamous union and registered in accordance with this Act.3" Under

Common Law, Lord Penzance defined Marriage in the landmark ruling in Hyde v Hyde and

Woodmansee (1866) thus “I conceive that marriage, as understood in Christendom, may for this

purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of

all others”.4

The Marriage Act 2014, which effectively amended and consolidated the various laws relating to

marriage and divorce and connected purposes, has recognized marriage conducted under any

tradition, or under a system of religion adhered to by persons professing a particular religion. The

Act establishes five systems of marriage namely5;

(i) Civil Marriage

(ii) Christians Marriage

(iii) African Customary marriage

(iv) Islamic marriage and

(v) Hindu marriages.

The Marriage Act borrows more from English Common Law practice in regulating Christian, Civil

and Hindu Marriage rights. Under common law, an agreement to marry would exist where the

1
Black's Law Dictionary
2
Marriage Act, 2014, Sec. 3
3
Marriage Act, 2014 Sec. 3(1)
4
Hyde V. Hyde And Woodmansee [L.R.] 1 P. & D. 130
5
Marriage Act 2014, Sec. 6

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parties act impliedly that they intend to marry. These agreements therefore amounted to legally

enforceable contracts so long as one could show that the parties involved intended to enter into a

legal relationship. Any breach thereof would entitle the aggrieved party to sue for such breach and

one could even claim damages. This agreement comprised the usual requirements of a contract

including capacity, intention to be legally bound and consent. The contract nature of marriage was

cemented by the precedent set in Shaw v. Shaw6 where the Plaintiff had cohabited with a man she

regarded as a husband for fourteen years and they lived together as husband and wife and even

celebrated their marriage. Upon his death, the plaintiff discovered that for ten years of their

marriage the man had been married to another woman who died two 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 two years of their cohabitation and only in those two years that he should have been legally

married to her. She sued 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.

It is worth mentioning that apart from general damages, in circumstances where there is a breach

of agreement to marry under common law, ordinarily gifts given in contemplation of that marriage

should also be returned by the guilty party. In Cohen v. Seller7, the issue was whether the diamond

engagement ring that had been given to the bride should be returned when the engagement was

terminated. It was held that if it was the groom who was guilty or responsible for the breach, then

he could not demand the return of the engagement ring but if it was the bride who had refused to

fulfil the conditions of the agreement then she was required to fulfil the conditions of the ring. In

6
Shaw v. Shaw (1954) 2 Q 3
7
Cohen v. Seller (1926) 1 K.B. 536

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this case the groom was found to have refused to fulfil his promise to marry and therefore the bride

was awarded damages and in addition to having the right to retain the diamond ring.

The position was again reaffirmed in the Ugandan case of Larok v. Obwoga 8 where 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.

It is important to note that in 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 Mohammed9 where 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

8
Larok v. Obwoga
9
Fazaldin Satardin –v- Din Mohammed (1927-26) Vol. II K.L.R. 41

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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.

Similar position is observed under Hindu Customary 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. Ruda10 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.

Under Africa 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

10
Dhanji –v- Ruda (1957) E.A. 110 (under Hindu law)

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an action of breach of promise to marry will not lie. This was held in Muinde v. Muinde11 there

are other remedies provided for under the Magistrates Act which include actions for damages for

seduction, and also actions for pregnancy compensation. In Muinde v. Muinde, it was 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’s 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.

Under the Marriage Act 2014 some sort of equality has been brought about for the types marriages.

According to section 3(1) of the Marriage Act, a marriage is defined as a voluntary union of a man

and a woman whether in a monogamous or polygamous union in accordance with the Act. Section

3(3) further states that marriages registered under the Act shall have the same legal status. The

legal status refers to the validity of these marriages and the essentials to such validity are in regards

to:

1) Capacity

2) Consent

3) Formalities

Though they may differ in some instance, there are significant points of convergence between

Christian and African Customary Law marriages in Kenya.

1. CAPACITY

Capacity is an essential to a valid marriage throughout all the systems of marriage that are practiced

in Kenya. It has been a vital feature in customary marriages even before the enactment of the

Marriage Act 2014, in that one must have capacity in order to contract a marriage. With the

enactment of the Act there has been a change in some features as to what capacity entails especially

11
Muinde v. Muindi, HCCC No. 1969 of 1979

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 in regards to the customary marriages but it has brought about some convergence between the

various systems of marriage in Kenya. The similarities in regards to capacity include:

i. Marital Status

Under civil law, the parties wishing to contract marriage must be single, divorced or widowed. As

per the Marriage Act, a party contracting a marriage must be single. It therefore amounts to an

offence of Bigamy if a person contracts a marriage while the other one is still subsisting and this

offence attracts a penalty of five years imprisonment and the subsequent marriage is deemed to be

null and void12.

Under African Customary Law, a man could enter into subsequent marriages under the system of

polygamy.

In Islamic law, a man is entitled to four wives and not more than those. These wives must however

be single, widowed or divorced.

ii. Age

The parties must be of the marriageable age. According to section 35 (2), a marriage shall be null

and void if either party thereto is under the age of eighteen years at the time of the celebration of

such marriage.13 Additionally, Article 45 (2) of the Constitution of Kenya holds that every adult

has the right to marry a person of the opposite sex based on free consent of the parties. 14 There is

of course the aspect of free will and consent and Section 2 of the Children’s Act defines a child as

any person below the age of 18 years.15 There is a conflict with the marriage Act but the rationale

is that parties are required to be mature enough to deal with stresses, responsibility, and sexual

freedom in marriage and child birth and be at an age where they are able to give their free consent.

12
Marriage Act, 2014 Sec. 35
13
Marriage Act, 2014 Sec. 4
14
Constitution of Kenya, Art. 45(2)
15
S2 of Children Act 2001(cap141) Laws of Kenya

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 In the case of Pugh v Pugh16, a man of over 16 years married a girl aged 15 years and it was held

that that marriage was void and in his ruling the judge gave the reasons 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.”

In African Customary Law, age was demonstrated by maturity and mostly young girls and boys

who had attained puberty were ready for marriage. As for the girls, they had to have started

menstruating (which was a sign of their maturity) and basically the parties must be able to carry

out marital duties. Circumcision also played a key role in signifying maturity. After circumcision,

marriage was the next great test for a young man or woman in order to push them to a higher status

and next level of life in society.

iii. Prohibited degree of relation

The parties should not be related by blood (Consanguinity) or by affinity. According to section

35(1), no marriage in Kenya shall be valid which, if celebrated in England, would be null and void

on the ground of kindred or affinity, or where either of the parties thereto at the time of the

celebration of such marriage is married by native law or custom to any person other than the person

with whom such marriage is had.17

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. 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

16
Pugh v Pugh [1951] 2 All ER 680
17
Marriage Act, 2014 Sec. 35(1)

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 grandmother, he cannot marry his granddaughter including step granddaughters, and he cannot

marry his aunts or his nieces. The woman likewise may not marry her father, step father, father-

in-law and adopted father, son, step son, son in law, grandfather, grandson, uncles and nephews

all these include step and adopted. Under English law the list does not prohibit marriage between

cousins. This is the case in Islamic Law as well.

In African Customary law marriage between people within a prohibited marriage relationship was

termed an illegitimate marriage. For instance among the Luo Community marriage between

members of the same clan linage was prohibited and referred as chira. Anybody who went through

such marriage relationship had to undergo cleansing by taking manyasi.

iv. Heterosexual Nature.

Marriage must be between parties who are biologically a man and a woman. In the case of Corbett

v. Corbett18, 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. However,

he had undergone a sex change operation and since that operation had lived as a woman. After

fourteen 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.

Under civil and Christian marriages, the concept of sex as a capacity was defined by Lord

Penzeance in Hyde v Hyde 13 where marriage was defined as a voluntary union between one man

18
Corbett v. Corbett - 236 Ga. App. 299, 511 S.E.2d 633.

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and one woman to the exclusion of others. This position is again emphasized by the Constitution

of Kenya that states thus, states that every adult has the right to marry a person of the opposite sex,

based on the free consent of the parties.19

Under African Customary Law, Islamic and Hindu Law, the parties must be man and woman.

2. CONSENT

Generally in marriages under civil law, parties intending to contract marriage must give their

consent. The marriage bill, under section 11 states that ‘No marriage shall be contracted except of

the free will of each of the parties.’20 The institution of marriage in civil law is governed by free

will and consent.

If the party is unable to speak to give their consent they may do so by signing a written consent in

the presence of a judge, magistrate, justice of the peace, and registrar of the High Court, registrar

of marriages, medical officer or minister of religion.

Under customary Law, consent of both parties is essential for the validity of the marriage. This

consent could be seen at various stages of the process leading to marriage. In the Luo culture,

marriage took place in several stages and consent featured in most of them especially the initial

stages. A man could not marry without his father's permission, for it was only from him that he

could obtain the cattle with which to acquire a bride. But in other instances a mother, for instance,

who is without an unmarried daughter, and who want another woman to help her in the household

work and cultivation, might insist that her son should bring a wife into the family, even if he had

not yet reached ordinary marriageable age.

Between the permission to marry and marriage itself, there intervened a long chain of events,

extending over months and sometimes even over years. The mere choice of a bride was hedged

19
Constitution of Kenya 2010, Art. 45(2)
20
Marriage Act 2014, S11

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about with complications and difficulties that often delayed a man's marriage considerably. This

choice was, in the first place, limited by the rule that he might not marry any woman related to

him, however distantly, either on his father's or on his mother's side of the family. To do this would

be to commit incest, and would bring terrible curse upon the clans and families concerned. If it

happened, as it sometimes did, that a man fell in love with a girl without knowing whether, he was

related to her or not, only to find that she belonged to one side or other of his own family, the

discovery put an end immediately to all intercourse between them. If, on the other hand, it could

be established that the two were not related, the man would get permission from his father to take

her as his wife, and the usual negotiations would be put in hand. It was, however, more usual for

a man to leave the choice of his wife to his father, who would select a suitable maiden with regard

only to the mutual advantage of the two families concerned. In this case neither the young man nor

the girl were regarded as at liberty to refuse the marriage.

In Mwagiru v Mumbi21 the bride did not participate in the slaughtering process and all she did was

ask the persons involved to continue on. She also did not sip the beer as required when giving her

parents as alleged by the petitioner. The consent of the bride’s family was also very vital to the

validity of the marriage.

Under Islamic (Mohammedan Law), the parties must consent to the marriage as well. Different

sects have different requirements for consent.

3. FORMAL REQUIREMENTS.

The formal requirements as to the validity of a marriage that apply to the civil and Christian and

African customary marriages are notice, celebration, witnesses and registration.

i. Notice

21
Mwagiru vs. Mumbi (1967) EA 639

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 In civil marriages parties to a marriage must give the Registrar of marriages and the person in

charge of the place where they intend to celebrate the marriage a written notice of not less than

twenty-one days and not less than three months.21 Similarly in a Christian marriage, such a

notice should be given to the person in charge of a public place of worship within twenty-one days

and not less than three months.

Similarly, under the African customary marriage, notice is a very essential element of a marriage.

The marriage Act 2014 legitimizes notice in the African customary marriage by stating that a

marriage under the African Customary law shall be celebrated in accordance with the customs of

the community of one or both of the parties to the intended marriage. Further the Act states that

the parties to the intended marriage shall inform the Registrar of such marriage within three months

of the completion of the steps required to confer the status of marriage to the parties in the

community concerned.

ii. Celebration

Under civil and Christian marriages, celebration of a marriage entails the marriage being officiated

by an officer who is licensed to perform such a ceremony as well as the requirement that such

marriages should be celebrated in a registered venue. For a Christian marriage the venue is a

registered public place of worship.

African Customary marriages on the other hand, a marriage should be celebrated according with

the customs of the communities of either or both of the parties to the supposed marriage.

iii. Witnesses.

In civil and customary marriages, a marriage must be witnessed by two competent witnesses.25

The Act goes further to provide that a person who celebrates a marriage (the celebrant) shall not

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 be a witness. Similarly, under African customary marriages the requirement of two witnesses both

adults who must have played a key role in the celebration of the marriage is mandatory.27

iv. Registration.

In civil and Christian marriages, registration of a marriage is a must. The Act states that where a

marriage is celebrated under Part III (Christian marriages) of the Act the person officiating the

marriage shall forward a copy of the certificate of marriage to the registrar within fourteen days of

the celebration of the marriage for registration. Similarly, the Act enjoins the Registrar to register

a marriage celebrated as a civil marriage.

Under African Customary marriages registration of a marriage is also mandatory. The Act enjoins

the parties to the marriage to within a period of six months to apply to the registrar for a certificate

and appear both in person to be issued with the certificate of marriage.

Under African Customary Law, the formalities involved include betrothal, marriage negotiations

and payment of dowry.

Under Mohammedan Law, a process of offer and acceptance must be done either by the parties

themselves or their guardians. The man is then required to pay dowry which is known as ‘Mahir’.

This is payable to the bride’s family and is a sign of respect to her. It may be paid before the parties

enter into conjugal relations or during the course of the marriage or after dissolution of marriage.

After these major formalities are done, the marriage is celebrated according to Islamic practices

and is then required to be registered within 7 days at the Registrar of Islamic Marriages. On

registration, the parties sign the Islamic marriage register but failure to sign does not invalidate the

marriage and signature does not validate marriage either.

As for Hindu Marriages, the Hindu Marriage and Divorce Act stipulates two ceremonies that are

performed during celebration of a Hindu Marriage. The first is the Saptapadi Ceremony where the

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bride and the bridegroom go round a sacred fire seven times and on the seventh round the marriage

is deemed to have been celebrated. The second one is the Anand Karaj ceremony where 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.

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