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INTRODUCTION1 IntroductionIn 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 house...

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INTRODUCTION 1.1

Introduction

In one social context a family may refer to a man and a woman who share a common household. In another, it is defined as all persons who share blood relations. In others, it is defined as all persons who share a household. In others still it means all the members of a household, including parents and children with perhaps other relations, lodgers and even servants. The family is the basic component of a society organization. Marriage and the founding of a family is a basic human right as per Article 16 of the Universal Declaration of Human Rights.1 Article 23 of the International Covenant on Civil and Political Rights declares that the family is the natural and fundamental group unit of society and is entitled to protection by society and the state. 2 It is also the basic economic unit of society in the sense that the most productive activities take place within the family set up. The family setup provides a framework for the parties to have satisfactory sexual expression. It guarantees perpetuation of society through the receiving of offspring. It provides a framework for companionship between the members of that family. Legally, the term family is a restricted concept. There are certain formal prerequisites that have to be met and the main one is a marriage ceremony. In law a family is created when parties enter into a legally recognized marriage. The law also restricts the right to terminate that legal status. The family is registered because it serves a number of purposes in society. The family contemplated by the general law is the modern English type – consisting of husband and wife bound in monogamy for life subject only to the possibility of a judicial decree of divorce, with their children. The notion of family in African society is much wider. It embraces the concept of the extended family, which may consist of the man, his wife or wives, his children (that is to say his unmarried daughters and his married sons with their wives and children) and other more distant relatives – such as his young brothers with their wives and children.3 1 G.A Resolution 217 A(III) G.A O.R., 3rd Sess. 2 See Kakooza, J.M.N., ‘Changes in Family Law,’ in (1968) 4(1 and 2) East African Law

Journal 11. 3 See Read, J.S., ‘Family Law in Kenya,’ in M’Baye, K. (ed.), Le Droit de la Famille en Afrique Noir et a Madagascar, 1968, Paris, page 248.

1.2

Family Law

Family law gives effect to the society’s values as regards the relationship between man and woman.4 Family law seeks to define status between the parties in that family i.e. it defines what rights a member of the family can claim over the other or over the other’s property. Altering the status of parties in the family. A remedial role; that is it serves to protect certain weaker members of that family e.g. children. On termination of a family relationship there are certain members who may need protection especially economic protection. The trend now is that not all family relationships are created by marriage ceremonies such as cohabitation, single parents. The law has developed to recognize some of these relationships. Some of the developments in law have been to deal with these issues, under common law and equity there is recognition given to cohabiters. Children born out of marriage also acquire recognition. Family law is the law that governs agreements to marry and betrothals, formalities that bring marriages into existence, maintenance, separation, custody , adoption, nullity, divorce property acquired during the marriage by the spouse and devolution of property in the event of the death of a spouse.5 1.3

Family Law in Kenya

The population of Kenya is a variety of cultural diversities. There are large numbers of Bantu speaking communities as well as speakers Nilotic and Nilo – Cushitic languages. Other than that there are also large populations of people of Asian and Caucasian descent. This diversity is reflected in the personal laws applying to the various sections of the population. The mix has also meant that family law in Kenya has a much wider ambit than it is understood in England.6

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

HISTORY OF FAMILY LAW IN KENYA 2.1Introduction The territory which is now known as Kenya: African customary law and Islamic law. Islamic law was introduced through the trans-Indian Ocean trade between the Arabian peninsular and the east coast of Africa, otherwise African customary law was the original law. The colonization of Kenya saw the establishment of statutory of marriage and divotrce which introduced principles of English family. At about the same time the Hindu family law was introduced after the colonial government brought in many people from India to work as labourers during the construction of the Uganda Railway.7Before then however there was some presence of persons professing the Hindu faith along the coast since the Indian subcontinent had been trading with the east coast of Africa for centuries.8 The starting point for establishment of the modern family law systems in operation in Kenya today is the 1897 East Africa Order in Council, which established a legal system for Kenya, and in the process applied certain Indian and British Acts of Parliament to the East African Protectorate.9 It also applied the common law of England and principles of equity which were in force in England at the time. It also provided for the application of African customary law and Islamic law. In a word it provided for the application of the four systems of family law that are in operation in the country today. These four were African customary law, applying to Africans, Islamic law applying to those who profess the Islamic faith irrespective of their race, Hindu customary law applying to Asians who profess the Hindu faith and English law which applied mainly to Europeans and to those Africans who are taken have accepted the English way of life.10 There however existed uncertainties about these laws. Before 1946, it was not clear to the courts whether or not Hindu customary law governed the Hindu marriage. Similarly, before 1920 when the Mohammedan Marriage, Divorce and Succession Act was enacted, the High Court, basing its decisions on Hyde vs. Hyde and another(1866) LR 1 P & D 130, declined to entertain matrimonial 7 Derrett, J.D.M., Introduction to Modern Hindu Law, Oxford University Press, London,

1963, pages 535-546. also Kakooza, J.M.N., ‘Changes in Family Law,’ in (1968) 4(1 and) East African Law Journal 1. 8 See Singh, Chanan, ‘Rejoinder: Hindus and Hindu Law in Kenya,’ in (1971) 7 (1) East African Law Journal 69 at 71. 9 This was made under the 1890 Foreign Jurisdiction Act of England of 1890. 10 See Kuria, G.K., ‘The African or Customary in Kenya Law Today,’ a paper presented at the Workshop on Conceptualising the Household: Issues of Theory Method and Application at the Harvard Institute for International Development, 2 nd – 4th November 1984, pages 21, 22.

causes arising from Muslim marriages on the ground that no law said that it had such jurisdiction.11 The East Africa Order in Council of 1897 was clear that the family law of the Muslims was Islamic law, for the African customary law applied, for the African Christians it was the law applying to Christians in India, 12 while for the Europeans it was the Indian Divorce Act of 1869, applied by the Order in Council to Kenya, together with English statutes and the principles of the common law and doctrines of equity in force in England as at 12 th August 1897.13In 1902 the East Africa Marriage Ordinance14 was enacted to enable Europeans and westernized non-Europeans to contract the English type of marriage in accordance with a law derived from English law. The statute applied the English law of succession to such Africans and their children. The assumption inherent in this later provision was that by marrying in the English way the African abandoned the African way of life and totally embraced the English culture and way of life.15The East African Marriage Ordinance of 1902 was amended in 1904, by the repeal of section 39 which had applied the English law of succession to African Christians.16 1904 also saw the promulgation of the Native Christian Marriage Ordinance which sought to introduce to Africans a simplified procedure of contracting an English style marriage. The formalities followed in English law were considered too complex for the African Christian.17The statute was replaced in 1931 with the African Christian Marriage and Divorce Ordinance,18which dealt with aspects of marriage peculiar to Africans. Africans married under this Ordinance had the same law governing their married life as that which governed Europeans.

11 Kuria, J.K., ‘Religion, the Constitution and Family Law and Succession in Kenya,’ a

mimeo, pages 107,108. 12 See the Native Courts Regulations of 1897 made under the East Africa Order in Council of 1897. 13 See Article 11(a) of the East Africa Order in Council of 1897 and the schedule. 14 Ordinance No. 30 of 1902. This statute was a colonial office model and was intended to be applied in Ghana, Nigeria, Malawi, Uganda and Kenya. 15 The Nigerian case of Cole vs. Cole (1898) 1 NLR 15, was based on a similar law in colonial Nigeria and is illustrative of the then prevailing colonial thinking that the English type of marriage was superior to the African marriage, and that the act of an African of contracting an English style marriage indicated the African’s abandonment of his African ways and his embrace of the English way of life. 16 See Kuria, G.K., ‘Internal Conflict of Marriage Laws in english Speaking African Countries,’ a paper presented at the World Congress of Sociology in Uppsala in August 1978, page 21. 17 See Kuria, G.K., ‘Internal Conflict of Marriage Laws in english Speaking African Countries,’ a paper presented at the World Congress of Sociology in Uppsala in August 1978, page 22. 18 The current Cap. 151 Laws of Kenya.

It is clearly discernible from the operations of all the four systems of family laws applicable in Kenya that they were anglicized to a large extent. On matters touching on custody of children, the colonial court initially applied the different laws relating to custody instead of applying the English law on the matter to Africans, Muslims and Hindus, but later the colonial began to subject the English law of child custody to all these different groups without exception.19The device of conversion was another avenue, the law governing the celebration of English style marriages provided for the conversion of marriage from African customary law or Islamic law marriage to English law marriage. 20 The African Christian Marriage and Divorce Ordinance provided for the conversion of the potentially polygamous African customary law marriages into the monogamous English type.21These provisions remain in these two statutes todate. At independence it was decided that all thse family law systems be put at par and remain in force until a common way of life emerged when one family law would replace them.22 Law Applying to Africans (a) African customary law Insofar as the natives were concerned, the East Africa Order in Council of 1902 had limited application. It provided that cases against natives would be brought in native courts and a Commissioner was given the power to establish and abolish those Native Courts and to regulate their procedure as well as give directions as to the application of native law and custom. As a result of this power, the Commissioner made the Native Court Regulations of 1897 and what these regulations provided was that in matters affecting the personal status of natives, then the law of their caste or tribe insofar as it could be ascertained and insofar as it was not repugnant to national morality could be applied. The provisions were further modified by the Native Courts Regulations. The East Africa Order in Council of 1902 whose main purpose was to clarify further when customary law applied. It was provided that in all cases whether civil or criminal in which natives were parties, the courts would be guided by native law in so far as it was applicable and not repugnant to justice and morality or inconsistent with any law made in the protectorate. This introduced the repugnancy doctrine. In application the colonial judges and administrators, being either British or trained in Britain, followed the principles of justice and 19 See Kuria, G.K., ‘Internal Conflict of Marriage Laws in english Speaking African

Countries,’ a paper presented at the World Congress of Sociology in Uppsala in August 1978, page 22. 20 See the East African Maarriage Ordinance, sections 11 and 33. 21 See section 9 of the African Christian Marriage and Divorce Ordinance. 22 See Section 82(4) (b) of the Constitution (Act No. 5 of 1969).

morality obtaining in Britain at the time,23 although in a number of cases they upheld some local customs24 and modified others. This formulation of the Order in Council is the same formulation that we have in Section 3 of our Judicature Act insofar as application of customary law is concerned. In areas of family law for those natives who still practice customary law are still governed by African Customary Law. This was basically the same approach that was taken by the Kenyan colonial court and you will find this stated in many of the cases that were decided in that period R v. Amkeyo, R v. Mwakio, Robin v. Rex Most of these cases were actually dealing with issue of admissibility of evidence given by the wives arguing that they are in a privileged position and therefore could not testify against their husbands in Mwakio the Judge said that “it is unfortunate that the word wife and marriage have been applied in this connection. If only the woman party had been described as a concubine or something of the sort, the question could never have arisen.” That illustrated the colonial courts attitude to women who were married according to customary law. They did not deserve to be termed wives as per the colonialists and the wife evidence was going to be admissible because they were married under customary law. (b)

Statutory law

The Native Christian Marriage Ordinance applied only to the marriage of Christian applicants. It was supposed to supplement the Marriage Ordinance and was intended to relieve the Africans of the need to comply with the formalities laid down in the marriage ordinance. It only applied to Africans who professed Christianity and just like marriage ordinance marriage under this Act was strictly monogamous. This Act also provided some protection to widows in the sense that widows who had been married under the ordinance were protected from being inherited as was the case in customary law. That is they could refuse to subject themselves to the subject of widows inheritance. The marriage had to be celebrated by a church minister and before the church minister did this he had to satisfy himself that the parties were Christians. Samuel Uledi vs. Lydia Habibu (1906-1908] 2 E.A.L.R 91 held that the divorce ordinance no.12 of 1904 only applies where the petitioners professes the 23 See Marko Kajubi vs. Kulanima Kubali (1944) 11 EACA 34 (Sir John Gray CJ). 24 See Ole Olesso vs. Nalulus ole Kidoki (1914) 5 EALR 210 (Bonham-Carter Ag. CJ)), Rex

vs. Obongo (1920) 3 ULR 31, Nyaberi vs. Nyaboga (1953) 1 CRLR) 5, Mairura vs. Anginda (1958) 6 CRLR (b) Cap 151 of the laws of Kenya

Christian religion or has been married under the marriage ordinance and the jurisdiction has to be exercised in accordance with the law applied in the high court of justice in England. Also held that a marriage between native Christians before1902 not celebrated by a minister of a religious denomination according to the rites of that denomination is invalid. The native marriage Christian Ordinance was replaced in 1891 with the African Christian Marriage and Divorce Act. Law Applying to Muslims For those natives who were Muslims, Islamic law would apply to them and this was with regard to matters affecting their personal status. Khamis Bin Ahmed V Ahmed Bin Ali Bin Abdurehman [1934] 1 E.A.C.A 180 held that the law of Islam cannot be described as native law for the purpose of Article 7 of the Kenya colony order in council 1921 merely because it is the law applicable to many, or even all, of the natives in Kenya. In 1906, the Mohammedan Marriage & Divorce Registration Ordinance was introduced to provide for registration of Islamic Marriages and Divorces. The ordinance only provides for registration of marriage or divorce. The Act is basically procedural and not substantive. 2.4 Law Applying to Hindus There were also two other communities in Kenya at the time, the British Colonizers and the Indians who had been brought in as labour and the issue here was whether for those groups they applied Indian Act or British Laws and common law rules were applied. The Indian Law was basically British law that had been passed in India and there was not much difference between the two, they were obviously geared for application to the British Settler but did they apply to the Hindu? The assumption was that in Kenya, they would apply. As early as 1898 we have all these laws governing different peoples. Muslims still continue to be governed by Muslim Law but with Hindus a number of developments occurred which made the Hindus to adopt laws that were similar to those found in the statues. In 1946 the Hindu Marriage, Divorce and Succession Ordinance was enacted. This is where Hindus parted way with Hindu Customary Law. The Act provided that in future all Hindu Marriages were to be monogamous and the Act extended to Hindus the reliefs that are available under the Matrimonial Act and under the subordinate Courts separation and maintenance Act. Under orthodox Hindus, marriages can be polygamous. The first enactment on Hindu family law came in 1946, the Hindu Marriage, Divorce and Succession Ordinance,25 to address two difficulties faced 25 The Ordinance came into force on 14th August 1946.

by Hindus.26 In the first place, when Hindus sought matrimonial relief in the courts they came up against the argument that a Hindu marriage was not a marriage within the meaning of that term in any of the ordinances in force in Kenya.27 The 1946 Ordinance sought to define the Hindu marriage and it stated at section 3(1) that a Hindu marriage would be deemed for all purposes to be a valid marriage. The second difficulty related to the ascertainment of the law applicable in a particular case. On this the Ordinance laid down two principles. The court was to apply the law and custom which would be applicable to the person seeking relief if he were seeking relief in India.28 Secondly, the court could ascertain the Hindu law or any custom by any means which it thinks fit, and in case of doubt or uncertainty decide the case as the principles of peace, justice, equity and good conscience may dictate.29When law reforms were introduced in India in the 1950s, the Kenya law was amended to reflect those changes in India. The 1946 Ordinance was split into two statutes: the Hindu Marriage and Divorce Ordinance of 1960 and the Hindu Succession Bill of 1960.30The Hindu Marriage and Divorce Ordinance of 1960 was a rehash of the Indian legislation.31 2.5Law Applying to Europeans The 1902 Order in Council gave the commissioner power to make laws which would apply in the protectorate and one of the first laws that was made in 1902 was the Marriage Ordinance. This O...