Marriage, Divorce and Succession Laws in Kenya: Is Integration or Unification Possible?

Author(s): Eugene Cotran

Source: Journal of African Law, Vol. 40, No. 2, Liber Amicorum for Professor James S. Read
(1996), pp. 194-204
Published by: Cambridge University Press on behalf of the School of Oriental and African Studies
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 MARRIAGE, DIVORCE AND SUCCESSION LAWS
IN KENYA: IS INTEGRATION OR UNIFICATION
POSSIBLE?
EUGENECOTRAN*

INTRODUCTION

It gives me great pleasure to contribute to this liber amicorum for my colleague

and friend James Read. I wish him a happy retirement though I suspect that his
hunger for research and discovery into African law will continue. I met Jim some
36 years ago when I joined the School of Oriental and African Studies as a research
officer in African law attached to the Restatement of African Law Project of which
Tony Allott was the Director.' Like me, Jim was then a young student of African
law, being taught and coached by the pioneer of the subject, Tony Allott. Again,
like me, Jim also specialized in East Africa and in the early 1960s we exchanged
notes and ideas and collaborated on research into the customary and other laws of
Uganda, Kenya and Tanzania. NaturallyJim took a special interestin my Restatement
of African Law in Kenya and I am forever grateful for his encouragement and
enthusiasm during the research and afterwards,when the Kenya Government decided
to go further than the Restatement and integrate its marriage, divorce and succession
laws. This article tells the story of the establishment of the two Kenya Commissions
on the subject and asks whether such unification or integration is possible. Jim tried
to answer the question in his commentary on the Marriage and Divorce Report2
when he said:
"'Apartfrom the polygamy issue, the general report of the MarriageCommission
is the centre of a score of other controversies.It has been said that the Government
which adopts any report on such an issue will be a brave one'.
TheReporter, October 6th, 1967
These wordsappeared,of course,beforethe Reportof the Commissionwas written.
The fears they express are quite valid: reform of family law presents not merely
technicalproblemsbut a complex of dauntingobstaclesin the form of deeply held
religiousbeliefs,widelydivergentviewsas to the propercourseof socialdevelopment
combined with great lack of specific knowledge about current social patterns,
emotional attitudesand other human factors.
Yet here is a Report which the Kenya Governmentwould do well to adopt: it
is a document of outstanding importance in the development of East African
law, which will demand careful study by those concerned with law reform in
CommonwealthAfrica and even furtherafield. The basic choices which it makes
are convincing and practical;the proceduresenvisagedfor the implementationof
the Report are humane in the recognitionthat a painful process of transitionand
adaptation is already under way and that the task for the law-makeris to move
with it and, where practicable,to precede it. There are certainlydetailed elements
in the proposedimplementationwhich shouldbe reconsidered;and in some respects

* LL.D., a CircuitJudge and Visiting Professorof Law (with referenceto Africa and the Middle
East) and the Chairman of the Centre of Islamic and Middle EasternLaw, School of Oriental and
African Studies.
1
[1987] JA.L. 31, 15-17.
2 "Marriageand divorce: a new look for the law in Kenya?" (1969) 5 East AfricanLawJournal
107-140.
194
Vol. 40, No. 2 Kenyanmarriage,divorceand successionlaws 195

the Commissionersappear ready to move rather more quicklythan social change

would appear to justify. But in its essentials,this is a welcome and viable scheme
for reform."

THE COMMISSIONS AND THEIR TERMS OF REFERENCE

In 1967, the Government of Kenya set up two Commissions,3 one on the Law of
Marriage and Divorce4 and the other on the Law of Succession5 with the following
terms of reference:
Law of Marriageand Divorce:
to consider the existing laws relating to marriage, divorce and matters relating
thereto;
to make recommendationsfor a new law providing a comprehensiveand, so far
as may be practicable, uniform law of marriage and divorce applicable to all
persons in Kenya, which will replace the existing law on the subject comprising
customarylaw, Islamic law, Hindu law and the relevant Acts of Parliamentand
to prepare a draft of the new law;
to pay particularattention to the status of women in relation to marriage and
divorce in a free democraticsociety.
Law of Succession:
to consider the existing law on succession to property on death, the making and
proving of wills and the administrationof estates;
to make recommendationsfor a new law providing a comprehensiveand, so far
as is practicable, uniform code applicable to all persons in Kenya, which will
replace the existing law on the subject comprising customary law, the Indian
AppliedActs and the relevantActs of Parliamentincludingthose governingMuslim
and Hindu succession;
to prepare a draft of the new law in accordance with the commissioners're-
commendations.

REASONSFOR SETTINGUP COMMISSIONS

The reasons which prompted the Government to set up the Commissions were
given by the then Attorney-General, Mr Charles Njonjo, as follows:
"Law of Marriageand Divorce:
When I announced the appointmentof a Commissionon the law of succession
two weeks ago, I indicated that the subjectof successionis closely connected with
the law relating to marriage, divorce and the status of women and that I would
announce the Government'sproposalswith regard to these latter questions. The
Governmenthas now decided that the establishmentof a Commissionon the law
of marriage and divorce with the terms of reference that I have just read out, is
the most effective method of ensuringthat our countrywill have a law which will
meet the peoples' requirements.
We are fortunateto have secured the servicesof MrJustice Spry of the Court
of Appeal for EasternAfricato be the Chairmanof this all importantCommission.
As you can see, the other memberswere carefullyselected to representthe various
religiousand ethnicgroupsof Kenya and otherinterestedsectionsof the community.

3 The writerwas a Memberand the

Secretaryof both Commissions.
The Chairmanof the
MarriageCommission.wasthe Hon. LordJustice Spry (Courtof Appeal for East Africa)and of the
SuccessionCommission the Hon. Humphrey Slade, Speakerof the National Assemblyof Kenya.
4
5
Reportof theCommission
on theLaw of MarriageandDivorce,Nairobi, 1968.
Reportof theCommission
on theLaw of Succession,
Nairobi, 1968.
196 Kenyanmarriage,divorceand successionlaws [1996] J.A.L.
Mr Cotran, a Member and Secretary of this Commission, is also a member and
Secretary of the Commission on the law of succession, and will carry out the
necessary liaison and co-ordinate the work of the two related Commissions.
At present there are a variety of marriage laws affecting the various communities
of Kenya in different ways. Marriage under the Marriage Act, the principal enactment
dealing with marriage, is open to all persons irrespective of race or religion. The
African Christian Marriage and Divorce Act provides a simple procedure for the
marriage of Christian Africans and for the conversion of a customary marriage into
a statutory monogamous marriage. The law of divorce and matrimonial causes
relating to persons who marry under these two Acts is contained in the Matrimonial
Causes Act which is generally based on English law. The law of marriage and divorce
governing Hindus is contained in the Hindu Marriage and Divorce Act and Muslims
are governed by the Islamic law of marriage and divorce by virtue of the Mohammedan
Marriage, Divorce and Succession Act. In addition there are the customary laws of
marriage and divorce which govern a large part of the African population who do
not get married under the statutory law.
The different statutes and laws make different provisions with regard to such
vital matters as age requirements, the giving of consent, registration of marriages
and the grounds for divorce. And when one considers the different customary laws,
there are even more variations and no system of registration.
The existence within Kenya of this variety of marriage laws creates numerous
problems of conflict and administration. Whilst our Constitution permits differ-
entiation in treatment of sections of the community in regard to legislation dealing
with marriage, divorce, and other matters of personal law, that is not to say that
such radical distinctions as exist at the present time in Kenya are desirable if we are
to integrate the various communities in the interests of building one nation. Uniformity
in marriage legislation, is, moreover, becoming more pressing at a time when
marriages between the various communities are taking place with increasing fre-
quency.
The law of marriage is a subject which touches the everyday life of all our
people. In order that the Commissioners may produce recommendations acceptable
to all, it is essential that they should receive the views of all sections of the
community. I would therefore make a special appeal to all those individuals and
organisations who wish to air their views to come forward and give evidence to
the Commission or to submit their views in writing.

Law of Succession:
The intention of comprehensively reforming the laws of succession has been in
the Government's mind for some time. At present there are a variety of succession
laws affecting the various communities of Kenya in different ways. The two main
enactments dealing with succession are applied Indian Acts, viz. the Indian
Succession Act, 1865, and the Probate and Administration Act, 1881. The former
Act does not apply to Hindus, Muslims or Buddhists, and in practice only governs
the estates of Europeans. The succession to the estate of deceased Hindus is
governed by the Hindu Succession Act, which applies Hindu law, and Hindus are
enabled to make wills by the Hindu Wills Act of 1870 of India. Muslims are
governed by the Mohammedan Marriage, Divorce and Succession Act, which
applies Mohammedan law to the estates of deceased Mohammedans who were
married in accordance with Mohammedan law. The vast majority of the population
of Kenya, on the other hand, that is to say the African population, is governed by
customary law, although it is now possible under the Africans' Wills Act 1961 for
Africans to make wills.
The existence within Kenya of this variety of succession laws creates numerous
problems of conflict and administration. In addition the Government feels it is
imperative that a common law of succession should be introduced which is
applicable to all persons in Kenya without distinction. A uniform law of succession
is after all an essential prerequisite to sound economic development. Furthermore
Vol. 40, No. 2 Kenyanmarriage,divorceand successionlaws 197

in the circumstancesof Kenya, the success of our land registrationprogramme

depends to a large extent upon the introductionof a uniformlaw of succession.
Preliminarystudiesin this direction have alreadybeen undertaken.Some years
ago the Hon. Mr Humphrey Slade, the Chairman of the new Commission,
producedat the requestof Governmenta draftunifiedSuccessionBill. Mr Cotran,
a Member and Secretaryof the new Commission,has also made intensivestudies
of the variouscustomarylaws of Kenya. He was secondedto the Kenya Government
by the University of London between 1961 and 1963 and with the assistanceof
the Kenya Law Panels produced detailed restatementsof the customarylaws of
the various ethnic groups of Kenya. The work done by Mr Slade and Mr Cotran
should facilitategreatly the task of the present Commission.
The Governmentis fully conscious that the reform of the laws of successionon
such an intensivescale is a revolutionarystep, but is confident that a uniformlaw
of successionis necessaryand is part of the nation buildingprogrammeof Kenya.
The Government realizes that the law of succession cannot be isolated from
other branches of the law, principallythe law relating to marriage, divorce and
the status of women. Consequently,proposalsrelating to these other subjectswill
be announced shortly."
It is clear then that there was a variety of reasons for setting up the two Commissions:
political, especially in relation to ending tribalism, encouraging unity and nation
building; economic and social, especially for encouraging the land consolidation and
registration programme and ending fragmentation of land-holding; and legal and
constitutional, to end discrimination in relation to women and conflict in the
administration of the four-fold system of law-statutory, customary, Hindu and
Islamic-both in relation to the laws of marriage and divorce and the laws of
succession.

THE UNSATISFACTORY
FEATURESOF THE EXISTINGLAWS

In their Reports both Commissions looked in detail at the unsatisfactory features

or defects in the four-fold system of marriage and divorce and succession laws:

Marriage and divorce

featuresof thelaw
"Unsatisfactoty
47. Much of the existing statute law has its roots in English law, which, being
founded on the canon law where marriage and divorce are concerned, only
recognized as marriagethe voluntaryunion for life of one man with one woman
to the exclusion of all others. The result is that although the law recognizes
polygamousmarriages,both Islamicand customary,they have tended to be treated
as inferiorto the monogamousmarriage.This appearsfrom decisionsof the courts
and from the fact that the African ChristianMarriage and Divorce Act provides
for the conversion of customary into statutorymarriagesand the Marriage Act
appears to contemplate the conversionof Islamic as well as customarymarriages
into marriagesunder the Act. Moreover, the Mohammedan Marriage, Divorce
and Succession Act appears to contemplate the conversion of customary into
Islamic marriages.In none of these cases is there any provision for the opposite
process.We regardthis as most unsatisfactory:the purposeof a marriageceremony
is to bring into being the marital status and we think that all forms of marriage
allowed by law should be equally effective in law.
48. It is also noteworthythat the English law of divorce, upon which the Kenya
law is based, has itselfbeen subjectto severecriticismsin recentyearsand proposals
for changes in England are under consideration.
49. There is also what may be termed an internalconflict of laws. The spheresof
statutelaw and personallaw are not clearlydefinedand the extentto which a person
198 Kenyanmarriage,divorceand successionlaws [1996] J.A.L.
can change his personallaw on a changeof religionis uncertain.There is also doubt
how far Africans who marry under religious or civil law retain rights
and remainsubjectto obligationsundercustomarylaw. There are also problemsthat
ariseon the intermarriageof personsfrom differenttribes,communitiesor religions.
50. We are told that it is not uncommonfor Africanswho have contractedmarriages
under the MarriageAct, or the AfricanChristianMarriageand Divorce Act, and
while those marriagessubsist,to take other wives under customarylaw. This is a
criminaloffence but so far as we are aware,prosecutionsare never instituted.This
stateof affairsis undesirable,as it tendsto bringthe law into disrespect.The position
as to civil rightsand obligationsunder customarylaw is obscure.
51. Doubts had been expressed as to which of the constituent elements of a
customarymarriageare essentialto the validityof the marriageand at what point
the marriageis complete. We think it of the greatestimportancethat there should,
as far as possible, be certaintyin all mattersof marital status.
52. The traditional African view of marriage was that it was less a union of
individualsthan a union of families.Moreover,in the past, the unity and numerical
strength of the clan were of paramount importance. Today, people move about
far more than formerly,mixed communitiesare growingand, while triballoyalties
continue, there is now a new allegiance to the State. These changes have made
some of the formerpracticesinappropriateor inconvenient.
53. We should briefly mention here the subject of dowry, with which we shall
have to deal more fully later. For the present purpose, it will be sufficientto say
that there are allegationsthat the practice of requiringdowry, which has a deep
significance in African society, is being commercialized. Also, there are wide
differencesbetween triballaws on the subjectand this tends to lead to uncertainty.
54. It would be wrong to generalizeon the statusof women under customarylaw
as there are considerabledifferencesbetween the customsof the varioustribesand
even within the tribes. It is perhaps sufficientfor the present purpose to say that
there are some featuresin the customarylaws of some tribes which we regard as
derogatingfrom the dignity and status to which women are entitled:to give three
examples,we are told that in one tribe a girl may be compelled by her parentsto
marry against her will, in some tribes a widow has no choice but to join the
household of a brother or other relation of her late husband, and in some tribes
a widow is precludedfrom remarrying.
55. On the breakdownof a marriage,also, women in some communitiesare in a
position greatly inferior,as regardsobtaining relief, to that of their husbands.
56. We consider it unsatisfactory,also, that the right to maintenance of women
who are divorced or separated from their husbands should vary as greatly as it
does according to the community or religion of the parties. This is anomalous
from the point of view of the individualand, so far as destitutionhas to be relieved
out of public funds, unfair on those sections of the community that contributeto
those funds but accept also the liabilityto pay maintenance.
57. We believe also that the fact that customarymarriagesare not registeredleads
to difficultyin proving such marriages,particularlywhen matrimonialproceedings
are taken in an area other than that in which the partieswere married.
58. Finally,we would remarkthat we have observedmany defects of detail in the
draftingof the statutesrelatingto marriageand divorce. It would not be profitable
to detail these, since, as will appear, we think that what is required is not the
patching of the present law but a completelyfresh approach."

Succession
"Criticisms
of ExistingLaws
(a) General Defects
37. The paramountcriticismthat could be advanced against the existing laws is
the very co-existence within one territoriallegal jurisdiction of a multiplicityof
Vol. 40, No. 2 Kenyanmarriage,divorceand successionlaws 199

laws dealing with the same subjectmatter of inheritance,but affectingthe various

communities of Kenya in differentways. Apart from policy considerations,prin-
cipally whether one country should have a number of differentlaws affecting its
people in diverseways dependingon their race or religion,such a systemnecessarily
brings about numerous problems connected with the conflicts between these
differentlaws.
38. These 'internal'conflictsrarelyarosein the past since the differentcommunities
and tribes of Kenya, lived, for the most part, separately and also because the
differentlaws of successionwere applied in differentcourts. Now, however, with
the gradualinter-mixtureof the Kenya peoples, both on an inter-tribaland inter-
communal basis, with urbanizationand inter-marriage,with land registrationand
with the integration of the system of courts, it is quite clear that conflicts in the
law of succession will arise more and more frequently, so long as the present
multiplicitycontinues.
39. But quite apart from this general criticism,we have observed many serious
defects in each branch of the existing laws.
(b) Defects in the StatutoryLaw
40. The Indian Acts of 1865 and 1881 are now of considerableage and they have
been superseded by more modern legislation in India. In their application to
Kenya, the Acts apply as they were on 27th November, 1907, i.e. including
amendmentsmade to the originalActs in India up to that date, but none thereafter.
The amendments which have been made by Kenya legislation since then have
been very few and formal.
41. It is consequentlyvery difficultto establishwith certaintythe text of the Indian
Acts as it applies in Kenya, and this in turn makes the application of text books
and judicial decisions on the Acts uncertain,since these can only be relevant if it
can be ascertainedthat they deal with precisely the same text of the Acts as that
which applies in Kenya.
42. As pointed out earlier, the practice in Kenya is to apply the 1865 Act to
Europeans.In effect, the provisionsregardingintestatesuccessionof Europeansin
the Indian Act differconsiderablyfrom the Englishlaw in this regard,in particular
with respect to the amount which the widow receiveson the death intestateof her
husband,and those differenceshave been accentuatedby modem Englishlegislation,
notably the Administrationof Estates Act, 1925, and the Inheritance (Family
Provision)Act, 1938, as amended by the Intestates'Estates Act, 1952. None of
these Acts apply in Kenya.
43. Under the Indian SuccessionAct, 1865, as applied to Kenya, a person has an
unlimited freedom of dispositionby will, so that he may give all his property to
an outsider,thus completelydeprivinghis dependants.There is nothing similarto
the provisionscontainedin the Inheritance(FamilyProvision)Act, 1938, of England
whereby the court has power to vary, within defined limits, the will of any testator
who had failed to make reasonable provision for the maintenance of his family
dependants.
44. Although the provisions of the 1865 Act relating to wills have, since 1961
applied to Africans,we are informedthat very few wills by Africanshave come to
light. It has been suggested that this is due either to lack of effective publicity or
that the formalitiesrequiredunder the 1865 Act are too onerous and that a more
simple form of making wills is requiredin ruralAfrican conditions.
(c) Defects in the Hindu Law
45. The paramountdifficultyin the applicationof the Hindu law under the Hindu
SuccessionAct is uncertainty.As pointed out earlier,s. 2 of the Act defines Hindu
law as the 'law relatingto successionadoptedby any school or sub-schoolof Hindu
law'. The better view is that this refersto the ancient Hindu law contained in the
smritis,and does not include the modern reforms to the Hindu law contained in
recent Indian legislation, notably the Hindu Succession Act, 1956. As regards
 200 Kenyanmarriage,divorceand successionlaws [1996] J.A.L.
ascertainment of the ancient law, s. 5 of the Hindu Succession Act provides that a
'court may ascertain the Hindu law or any custom by any means which it thinks
fit, and in any case of doubt or uncertainty may decide as the principles of justice,
equity and good conscience may dictate'. It is significant that the Kenya law in
regard to the subjects of marriage and divorce of Hindus has, unlike the law of
succession, kept up with modern Indian legislation on the subject.
(d) Defects in the Islamic Law
46. The principal defect in the Islamic law of succession as applied in Kenya by
s. 4 of the Mohammedan Marriage, Divorce and Succession Act is the way it links
succession by Islamic law to the condition of marriage under that law. It is clear
from s. 4 that the Islamic law of succession is only applicable,
(a) where the deceased had contracted a marriage in accordance with Islamic law;
or
(b) where he was the child of a Muslim marriage.
47. We are told that this requirement of marriage according to Islamic law is
invariably ignored in Muslim areas especially in the Coast Province and that the
courts of Kadhis invariably apply Islamic law to the estate of a deceased Muslim
irrespective of the form of his marriage.
48. Further, on one interpretation of s. 4, the Islamic law of succession may be
applied to a deceased non-Muslim provided he contracted a Muslim marriage or
he was the child of such a marriage.
49. Another serious problem arises from the rule in Islamic law that a non-Muslim
cannot inherit from a Muslim, and the consequent conflict between customary law
and Islamic law on the death of a convert to Islam. The problem arises chiefly
amongst the Digo, Duruma and Giriama of the coast, but to a lesser extent also
amongst other Islamized tribes in Kenya. In Ali Ganyumav. Ali Mohamed,6the Court
of Appeal for Eastern Africa in 1927 held that in the case of Africans converted
to Islam, s. 4 prevails to the exclusion of customary law. During the course of our
public meetings, we heard repeated complaints of persons with many children who
might convert to Islam in their old age with the result that on their death some
distant cousin who happens to be a Muslim might come and claim all the property
to the total exclusion of the non-Muslim children.7
50. Finally, the Islamic law of succession in Kenya is applied in its pure religious
form and does not take into account the modern reforms that have been introduced
in several Islamic countries in the Middle East, North Africa and Asia.

(e) Defects in the Customary Laws

51. Until recently, no written records of the various customary laws of Kenya
existed which led to uncertainty and difficulty in ascertainment. Mr Cotran's
restatements go a long way towards curing this defect, but it will take some time
before these restatements receive judicial approval in decided cases.
52. But apart from this question of form, we have observed serious defects in the
content of the customary laws relating to inheritance.
53. First, in regard to testamentary succession, although most customary laws
recognize the making of oral death-bed declarations, the purpose of these is
normally to nominate an administrative successor rather than apportion shares. If
the testator does apportion shares, the general rule is that he must not depart from
the broad principles which would have applied on intestacy.
54. Secondly, the rights of women, whether wives or daughters, to share in the
inheritance, are either very limited or non-existent.
55. Thirdly, the division of the property in a polygamous family is normally based
on a division between the 'houses' of each wife and her children, irrespective of

6 11 K.L.R. 30.
7 For a more detailed discussionof this
problem, see A. Phillips,ReportonNativeTribunals
in Kenya,
Nairobi, 1945; andJ.N.D. Anderson, IslamicLaw in Africa,London, 1954.
Vol. 40, No. 2 Kenyanmarriage,divorceand successionlaws 201
the number of children in each 'house'. This undoubtedlyleads to inequalityand
frictionwhere, for example, one 'house' has one son only, getting an equal share
with a 'house' that has many children.
56. Fourthly, customarylaws were designed to cater for the traditionaltypes of
propertysuch as land and cattle. Today, it is difficultto apply the customarylaws
to the modern property like houses, modern furniture,etc. nor to property that
cannot pass without proof of title such as registered land, bank accounts and
deposits, stocks and shares, insurancepolicies, motor vehicles, etc.
57. Finally, and probably the most serious defect in the customarylaw today, is
the system of administrationof estates. Customary laws usually provide that on
the father's death, his eldest son, or if a minor, his brother, acts as trustee or
adminstratorof the propertyfor the rest of the family.Under the traditionalsystem,
this person carried out his duties under supervisionand control of the family and
clan elders. In many areas today, however, the influence and authority of these
elders is waning. We have been told in many of the public meetings we held that
the customarytrustee or administratoris no longer subjectto the authorityof the
elders, nor are tribal sanctions any longer enforceable. We were urged that in
order to safeguardthe rights of the legitimatebeneficiaries,a strictercontrol of all
administrationby the courts or Governmentofficials,was now essential."

THE COMMISSIONS'
RECOMMENDATIONS

The recommendations made by the two Commissions are summarized below.8

On the question of uniformity, both Commissions felt that they could not, at that
stage of development in Kenya, recommend a uniform Act of national application
to the total exclusion of the personal law, that is customary law and Islamic law.
Instead, the Commissioners recommended that the national Act should be uniform
as to matters considered of national importance and allow for the application of
customary and religious laws under certain conditions and circumstances.
Here is a summary of the principal recommendations:

Marriage and divorce

(1) Although the differentforms of marriage-civil, customary, religious-were all

retained, the incidents of marriage were made uniform. All marriages must be
registered.
(2) Marriage should be consensual for all and there is a minimum age of 18 for
men and 16 for girls. Bride price to continue to be paid, but not to be an
essential requirement of marriage, nor its return an essential requirement of
divorce.
(3) Parties must opt at the time of marriage for monogamy or polygamy.
(4) Where parties opt for polygamy, a wife still has the right to object to a subsequent
wife on certain defined grounds-which objection shall be heard and decided
by a Marriage Tribunal.

8 For a detailed
commentary on the two Reports and its Recommendations,see (1969) 5 East
AfricanLawJournalwhich contains comments by the late ProfessorJ.N.D. Anderson (with reference
to the Muslim community);ProfessorJ.D.M. Derrett (with reference to Hindu law); Professor0.
Kahn-Freund;ProfessorArthur Schiller;Justice N.A. Ollennu; ProfessorJames Read (cited above,
n. 2) and Mr Peter Le Pelley.
202 divorce
Kenyanmarriage, andsuccession
laws [1996] J.A.L.

(5) The institutions of the "levirate" or "widow-inheritance", obliging the widow

to live with a brother or other relative of her husband after his death should
be abolished.
(6) All divorce will be preceded by conciliation and arbitration before a Marriage
Tribunal. If these fail, divorce can only be granted by a Court and is based on
the idea of "irretrievablebreakdown" rather than "fault".
(7) A Court has the widest possible powers to grant maintenance to wives and
children and/or divide property as between husband and wife on divorce.

Succession

(8) All persons may make wills, subject to a Court's power after death to give a
share to a dependant. Women may make wills. A Muslim may make a will
simply declaring that his property shall "devolve by Muslim law".
(9) On intestacy, a widow gets a life interest in her husband's property. The "house
system" is abolished. Subject to the application of the Muslim law of intestacy
and of customary law to livestock and unregistered land in certain areas of
Kenya, the new uniform law of intestacy should apply to Muslims, and persons
subject to customary law.
(10) Daughters should share equally with sons.
(11) A strict control of the process of administration of estates by Government
Officers and the Courts is recommended.

HISTORY OF REPORTS SINCE 1968

Some 20 per cent of the population of Kenya is Muslim. They objected vehemently
to the establishment of the two Commissions and its recommendations. They argued
that any tampering with Islamic law would be contrary to their religion and to the
Kenya Constitution. The Commissions rejected these arguments.9Both reports had
appended to them Draft Bills to put effect to their Recommendations, but they both
had a rough passage in the Kenya Parliament.

Marriage and divorce

Three attempts were made to enact the Bill drafted by the Commission, the last
one being in 1979. They all failed on the principal grounds that the Act was too
"Western" and gave too many rights to women. In the debate which took place in
Parliament in 1979 the Government was accused of "throwing our customs to the
dogs".'? Subsequent to the debate, the Bill was amended to incorporate some of the
criticisms, but that was not introduced in Parliament.
In 1982, the Government of Kenya set up a permanent Law Reform Commission
"to keep under review all the law of Kenya, to ensure its systematic development
and reform, including in particular the integration, unification and codification of

9
Marriageand Divorce CommissionReport, paras. 20-23 and SuccessionCommissionReport,
paras. 19-23 and paras. 65-69. One Member of the Law of Succession Commission actually
dissentedon this matter. He was of the view that any new law on intestatesuccessionshould not be
applied to Muslims (SuccessionReport, para. 70).
10 See "The rejectionof the MarriageBill in Kenya", [1979] JA.L. 109.
Vol. 40, No. 2 Kenyanmarriage,divorceand successionlaws 203

the law, the repeal of obsolete and unnecessary enactments and generally its
simplification and modernisation"."1
It was hoped that the Law Reform Commission would at least make a start with
marriage and divorce and look at the whole matter again in the light of the
Parliament's attitude to the Report of the Commission on the law of marriage and
divorce, but in fact nothing happened until October 1993 when the Attorney-General
appointed a "Task Force" to review the laws relating to women in Kenya.12
The terms of reference of the Task Force were very wide and covered the position
of women in matters other than marriage and divorce:
(a) to review all existing laws, regulations, practices, customs and policies which have
the effect or purpose of impairing or nullifying the recognition, enjoyment or
exercise by women, irrespective of their marital status, on a basis of equality of
men and women, of human rights in the civil, political, economic, social, cultural
or any other field;
(b) to make recommendations to modify, amend or abolish existing laws, regulations,
practices, customs or policies which constitute discrimination against women;
(c) to consider and recommend a comprehensive bill which will render unlawful any
discrimination on the basis of sex and promote equality of opportunity between
all persons; and
(d) to make such further recommendations incidental to the foregoing that it may
deem necessary.
One very interesting feature of this Task Force is the predominance of women in its
composition. It is chaired by the Hon. Justice Effie Owuor. There are 20 members
of which 16 are women. Of four ex-officio members, three are women and the three
secretaries are again all women.13 This is welcome news and a great step forward;
but whether their eventual Recommendations and Draft Bill will be acceptable to
the heavily male-dominated National Assembly of Kenya is another matter.

Succession
It was in this field that the Muslim opposition was highly vocal, both from a legal
and political viewpoint. Indeed when the Commission went to visit the Muslim island
of Lamu, there was almost a riot and the Commissioners flew straight back to
Nairobi. After publication of the Report, the Muslim community sent one delegation
after the other to the President to object. An attempt to introduce the Bill drafted
by the Commission in Parliament in 1970 failed, principallydue to Muslim opposition.
However, the second attempt in 1972 was successful and Parliament passed the Law
of Succession Act on the lines drafted by the Commission.14The Act specified that
it would come into force by a date to be gazetted by the Minister, but he did not
do so until some nine years later, on 1 July, 1981. Another Muslim furore then

1 Law Reform CommissionAct, No. 2 of 1982.

12 Several "TaskForces"were appointed to deal with differentbranchesof the laws and appear
to be an adjunct to the work of the Law Reform Commission. A "Child Law Task Force" has
already reported and presented a Children Bill.
13 This is a
great number of women compared with the Marriage Commission of 1967 which
had only three women and 12 men and the Succession Commission which only had one woman
and ten men.
14 Cap. 160, Laws of Kenya (Revised Edition 1981).
204 Kenyanmarriage,divorceand successionlaws [1996] J.A.L.
followed with yet another high-powered Muslim delegation going to see the President
to protest. The President directed the Attorney-General to consult the Muslim
community to find a solution. None was found, with the result that (on paper at
least) all the provisions of the Law of Succession Act applied to Muslims for some
nine years, from 1 July, 1981 until 1990, when the Law of Succession Act was
disapplied to Muslims in relation to testate and intestate succession (but not in
relation to the administration of the estates of Muslims). Instead Muslim law has
been applied again since then.15
Thus from 1 January, 1991, the Muslim women of Kenya were back to where
they had been under Islamic law, especially in relation to a widow only inheriting
one-eighth of her deceased husband's estate and daughters inheriting half the share
of sons. Any will made by a Muslim must conform to the Muslim rule of not leaving
more than one-third of the deceased's property, and this to non-heirs only.
It is to be hoped, however, that the law Task Force on Women will produce
recommendations which will relieve these disabilities for Muslim women as well as
the disabilities in the fields of marriage and divorce and other fields for all Kenyan
women. 16

CONCLUSION

I return to the question posed in the title of this article: is integration of the
marriage, divorce and succession laws in a country like Kenya, with a diversity of
ethnic, personal and religious laws, possible?Jim Read's prophecy was yes, the law-
maker must give a lead.'7 However, as the Swahili saying goes, pole pole, slowly,
slowly. Slow it has been, now some 30 years after the Reports, but the march goes
on and integration may yet come about.

15 From 1
January, 1991, under the Statute Law (MiscellaneousAmendments)(No. 2) Act, 1990,
which amended ss. 2, 3(1), 48 and 50 of the Law of SuccessionAct. One redeeming feature is that
the laws relating to administrationof estates do apply to Muslim estates and that succession to a
Muslim estate is no longer linked to marriage.
16 At the time of
writing in November 1966, the Task Force is still to report, over three years
after its appointment,and is apparentlywithout funds to continue its work.
17 Text to n. 2, above.