THE CATHOLIC UNIVERSITY OF EASTERN AFRICA

FACULTY OF LAW
DEPARTMENT OF PRIVATE LAW

NAME: GORE PETER CHARLES ANDREA

STUDENT NO.: 1046740
COURSE: FAMILY LAW
COURSE UNIT: CLS 201
LECTURER: MS NJERI KANGETHE
DATE OF SUBMISSION: 25TH, OCTOBER, 2022
Assignment Query: 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.
DISCUSSION;

Introduction;

The assertion, that complies the significant points of convergence between Christian

and African Customary Law marriages in Kenya can be traced by benefits that have

been delineated among the two, as being under-similar, but yet also above contrast,

in terms of the essentials that are encapsulated and tolerated by the leeway of a

valid marriage practice.

It’s fundamental for marriages to have validated procedures and methods to

encourage the completion and succession of such marriages.

Background;

According to the Kenyan legal system upon which marriage is admonished and

identified as a vital element, that manufactures or concocts a family, it is evident that

a family is the most identifiable and recognizable unit in Kenya, as per Article 45(1)

of the Constitution of Kenya, 2010 which provides 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.” 1Indeed over the years marked and

ranked with the distinguished and most edifying history of Kenya upon which laws

governing marriage as an important element were institutionalized, there have been

various legal enactments that had to favor the diverse boulevards of accessing

marriage in Kenya. These diverse boulevards include; customary law, the

Mohammedan laws, Hindu laws, Christian Laws and the Civil laws at which marriage

could be accessed and leveraged in all its validated operation and function in the

Republic of Kenya. This still created the aspect and necessary basis of social order

as provided for in the Kenyan Constitution, 2010.

1
Constitution of Kenya 2010
The aforementioned diverse boulevards are all important sectors at which marriage

can legally function. But we will take a glimpse on only two of these diverse

boulevards which are, African Customary law and Christian law marriages, and how

they converge with the help of certain significant points, underpinning the essentiality

of their validation.

A Christian marriage is that which has at least one of the parties subscribing to a
Christian religion recognized by the State. Section 17 of the Marriage Act, 2014
2
provides that “This Part apply to a marriage where a party to the marriage
professes the Christian religion.” Whereas an African Customary Marriage is
negotiated, celebrated or concluded according to any of the systems of
indigenous African Customary law. Article 45 (4) (a) of the Constitution of
Kenya provides that “The Parliament shall enact legislation that recognizes
marriages concluded under any tradition, system of religious, personal or
family.”3
African Customary law and Christian law marriages, and how they converge with the

help of certain significant points, underpinning the essentiality of their validation.

ESSENTIAL ELEMENTS FOR VALIDITY FOR BOTH A CHRISTIAN AND AFRICAN

CUSTOMARY LAW MARRIAGES AND THEIR SIGNIFICANCE POINTS.
The essential elements of a marriage contract are; Capacity, Consent and
Formal Requirements.

CAPACITY
Capacity is the power of a person to enter into a contract and capacity can be
in form of; marital status, age, biological sex, physical/mental health,
consanguinity/affinity.

Marital Status
Christian marriages are strictly monogamous. Parties must be single/divorced
or widowed since marriage is a union of one man and one woman to the
exclusion of all others. As we saw in Hyde vs Hyde4, marriage in Christianity is
between one man and one woman and it is a partnership for life. Polygamy is
expressly prohibited for a Christian, civil or Hindu marriage by section 6 (2) of

2
Marriage Act,2014
3
Constitution of Kenya 2010
4
Hyde v Hyde
the Marriage Act, 2014. Christians approach marriage as a type of covenant.
When God entered into a covenant with the Israelites, that covenant was
exclusive and special. The emphasis here is on the commitment and undivided
love to one at the exclusion of others. In re Estate of B.M.R, 5 the court held
that the deceased could not possibly have entered into another marriage
having married his first wife under the African Christian Marriages Act, in 1941
and that the marriages conducted after that were illegal and void. In Alfred
Nderi v Charity Kamweru,6 the Court held that Nderi could not contract a
statutory marriage as he had already been married to Kamweru under African
Customary Law.

Age
Section 4 of the Marriage Act, 20147, stipulates, “a person shall not marry
unless that person has attained the age of eighteen years. Article 260 of the
Constitution categories persons as minors, and adults. A person who has
reached the age of 18 is an adult and, therefore, can make mature decisions
for himself or herself. It is interesting that8, the canon law of the Catholic
Church puts the age limit for marriage for a boy at 16 years and for a girl at 14.
However, paragraph two of the same canon allows the Conference of Bishops
to increase that age in order to be in line with the age requirements of civil of a
country. 9
The Constitution, Marriage Act 2014 (s4), and the Children Act 2001 prohibit
marriage with a minor or between minors and this applies to both the Christian
and African Customary Law Marriages.
In South Africa, Customary marriages Act 120 of 1998, according to Section
3(1) of the Act: For a customary marriage entered into after the
commencement of this Act to be valid- (a) the prospective spouses - (i) must
both be above the age of 18 years.10

Biological Sex
Article 45 (2) of the Constitution, states, “Every adult has the right to marry a
person of the opposite sex, based on the free consent of the parties.” 24 The
Marriage Act, 2014, states, “Marriage is the voluntary union of a man and a
woman whether in a monogamous or polygamous union and registered in
accordance with this Act.”
5
Re Estate of B.M.R [1977] eKLR
6
Alfred Nderi v Charity Kamweru, HCCC Misc, No. 62 of 1979
7
Marriage Act 2014
8
Constitution of Kenya 2010
9
Canon Law 1983 (c1083 s1)
10
South Africa Customary Marriages Act Article 120 of 1998
In Corbett vs. Corbett11, the petitioner was born a man. Before the marriage,
the respondent had undergone a surgical operation for removal of the male
genital organs and provision of artificial female organs had been made.
Ormrod J, who was also a qualified medical practitioner, pronounced, “A
person’s biological sex is fixed at birth hence the respondent was not a woman
for purposes of marriage. Further, the respondent was physically incapable of
consummating marriage and the use of an artificially created cavity did not
amount to sexual intercourse." The court held that because marriage is
essentially a union between a man and a woman, the relationship depended
on sex, and not on gender. The law should adopt the chromosomal, gonadal
and genital tests. If all three are congruent, that should determine a person’s
sex for the purpose of marriage. Any operative intervention should be ignored.
The biological sexual constitution of an individual is fixed at birth, at the latest,
and cannot be changed either by the natural development of organs of the
opposite sex or by medical or surgical means. The marriage was declared null
and void ab initio
Also in Bellinger v Bellinger12 it was also held “Despite gender re-assignment,
a person born and registered a male, remained biologically a male, and so was
a woman for the purposes of the law of marriage.”
In Kenya, in the case of EG & 7 Others vs. Attorney General,13 the question of
the sex in marriage was also raised. The issues for determination in this case
were the constitutionality of sections 162 and 165 of the Penal Code on
grounds that the provisions have in effect, or are in practice applied to
criminalize private consensual sexual between adult persons of the same sex
and are vague/ uncertain. The issue was, thus, whether the impugned
provisions are unconstitutional for violating Articles 27, 28, 29, 31, 32 and 43 of
the Constitution. The court held that they were not satisfied that the
Petitioners’ attack on the constitutional validity of sections 162 and 165 of the
Penal Code is sustainable. It found that the impugned sections are not
unconstitutional. Accordingly, the consolidated Petitions had no merit,
therefore, the reliefs sought were declined, and the petitions were dismissed.

Physical/Mental Capacity
Previously, physical/mental incapacities were not legal bars under Africa
Customary Law but they could be social bars.
Section 12 read with Section 50 of the Marriage Act make physical/mental
incapacities legal bars. 14Section 12 provides that subject to Section 50, a
11
Corbett v Corbett, 113 Cal.App.595
12
Bellinger v Bellinger, FD, [2001] FLR 389
13
EG & 7 others v Attorney General; DKM & 9others [2016]
14
Marriage Act of 2014
marriage is voidable if at the date of the marriage either party was and has
ever since remained incapable of consummating it; and either party was and
has ever since remained subject to recurrent attacks of insanity; Section 50
provides for issue of a certificate of no impediment by the Registrar.
Under Section 11(1) (h) where either party is mistaken about the identity of
the other party the party thus mistaken lacks capacity.

Consanguinity
In African Customary Marriages Law, a man may not marry any woman to
whom he is related in the direct line of descent; namely: grandmother,
mother, daughter, granddaughter.15
For Instance, among the Gĩkũũyũ, a man may not marry siblings or first cousins
(Gĩkũũyũ). The Bari tribe of South Sudan don’t allow any form of marriages
between a man and woman if they are of the same clan or related in direct line
of descent.
Under s11(1) (b) of the Marriage Act, the parties must not be within prohibited
marriage relationship, i.e., either related by blood or marriage, adoption or any
relationship unacceptable under customary law. 16

Consent
This was upheld in the case of Hinds v. McDonalds(1932) where a colored
Barbados sailor was arrested on false bustard charges. He married the
complainant in order to get his release and so return to his ship which was
about to sail. The court held that the marriage was acquired through duress as
he was frightened of a calamity and thus there was not real consent. 17
Consent is the assent of the will to something desired by the intellect. It is an
act of the free will. Article 45 (2) of the Constitution states, “Every adult has
the right to marry a person of the opposite sex, based on the free consent of
the parties.” Since marriage is a commitment to another for the rest of one’s
life, it must be voluntary—that is, willed freely by the person entering into the
contract—misrepresentation, fraud, malice, lack of sufficient use of reason,
etc., causes defect in consent and, therefore, can vitiate a contract.
Indeed, section 11 (2) of the Marriage Act, stipulates that consent is not freely
given where a party, who purports to give it, is influenced by coercion or fraud;
15
Lecturer’s Notes
16
Marriage Act of 2014
17
Hinds v McDonalds
is mistaken as to the nature of the ceremony; or is suffering from any mental
condition whether permanent or temporary, or is intoxicated, or is under the
influence of drugs, so as not to appreciate the nature or purporse of the
ceremony. Hence, it is evident that consent may be vitiated based on the
above factors.
In both African Customary Marriage and Christian Marriage Law, both parties
must consent to marry each other to make the marriage valid.

Formal Requirements
Notice
In African Customary Marriage, Section 44 of the Marriage Act provides that
the parties to a customary marriage shall notify the Registrar of such marriage
within three months of completion of the relevant ceremonies or steps
required to confer the status of marriage to the parties in the community
concerned.
In Christian Marriages, Parties to an intended marriage must give the minister
21 days notice as prescribed by s25 and this notice will be published in the
prescribed manner at the place where the marriage is to be celebrated s26.
This usually takes the form of Banns on 3 consecutive Sundays (Saturdays).
S45 (3) prescribes what the Notice must confirm:-
 that the parties to the marriage were eighteen years of age at the
time of the marriage;
 that the marriage is between persons who are not within a
prohibited marriage relationship; and
 that the parties freely consent to the marriage.

The Notice is signed by both parties and witnesses who must have played a key
cultural role in the celebrating the marriage.

CONCLUSION
African Customary and Christian Marriages Law have a lot of significant points
of convergence in Kenya in the context of the essentials of a valid marriage and
above are the some of the discussions in relation to their point of convergence.