HISTORICAL DEVELOPMENT OF FAMILY LAWS IN KENYA

The studying point in family law is the 1897 East Africa Order in Council which applied certain
Indian and British Acts of Parliament to the East African Protectorate.  It also applied the
common law of England which was in force at the time.  Insofar as the natives were concerned
the Order in Council 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.  For those natives who were Muslims, Islamic law would
apply to them and this was with regard to matters affecting personal status.

This same formulation is what we basically find in our judicature Act insofar as the application
of customary law is concerned.  The provisions were further modified but the origins are Native
Courts Regulations. 

There were also two other communities in Kenya at the time, the British Colonisers 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.

For example the Indian Succession Act of 1865, this was one of the Indian applied Acts under
the 1897 Order in Council.  In India it had been expressly stated that that particular Act did not
apply to succession matters of Hindus in which case in India they applied their customary
succession laws in matters of succession.  When this particular Act was applied in Kenya there
was no such exclusion with regard to the Kenya Hindus.  There were also issues as regards
marriage and divorce and they applied English Marriage Laws.  There was a bit of problem with
regard to the Hindus in Kenya especially between 1897 and 1898 when it was stated that the
Indian Succession Act did not apply to Hindus and that they were to be governed by their own
customary law.  For those Hindus who had converted to Christianity, two Acts were passed to
cater for their succession, the Hindu Wills Act and the Probate and Administration Act of India,
the assumption was that the orthodox Hindus applied their customary law in matters of
succession.

As early as 1898 we have all these laws governing different peoples.  In 1902 we got the East
Africa Order in Council of 1902 whose main purpose was to clarify further when customary law
applied.  It was stated 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 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.  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.

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
Ordinance was a law of general application in the sense that it was not limited by race or religion
and was meant to apply to all residents in the protectorate.  It provided for basically a Christian
form of marriage which was strictly monogamous and made it an offence for a person married
under customary law to contract a marriage under the ordinance or vice versa.  It was also meant
to provide an avenue for the converted natives to contract the Christian type of marriage and for
the settlers to contract marriage.  What was important is that any African who married under the
Marriage Ordinance was supposed to have embraced the Christian way of life and therefore
distanced herself from their customary way of life.  Please look at Cole v. Cole the ruling in this
case exemplified the situation of what happened if one contracted a marriage outside the
ordinance.   A Nigerian couple got married according to Christian rites under the Nigerian
Marriage Ordinance.  They had a son who was mentally incapacitated and after a while the
husband died.  The issue then arose as to who was to succeed the man or who was entitled to the
man’s property and the man’s brother argued that under Customary Law he was the one entitled
to inherit the man’s property.  The wife argued that since they had married under the Marriage
Ordinance they had distanced themselves from the African way of life therefore African
customary law did not apply and instead the English Law of Succession applied and that under
that English Law of Succession she was the one entitled to inherit in her own right and as
guardian of her son.  The court upheld her argument basically stating that since they had married
under the marriage ordinance the African customary law no longer applied to them.

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.

THE NATIVE CHRISTIAN MARRIAGE ORDINANCE IN 1904

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.

The native marriage Christian ordinance was replaced in 1891 with the African Christian
Marriage and Divorce Act, Cap 151 of the laws of Kenya.

THE ENACTMENT OF THE DIVORCE ORDINANCE

This was based on the Indian Divorce Act of 1869 which was one of the Acts applied by the
1897 Order in Council.  It provided or afforded relief only in respect to monogamous marriages. 
This is still the position to the present day.  It was replaced by the matrimonial Causes Act in
1941.

In 1928 we also have additional relieve being accorded by the separation Courts (Separation &
Maintenance Ordinance) which was limited to monogamous marriages.  It still exists under the
same name in our laws and its Cap 153.  The purpose was to provide parties with judicial
separation other than divorce and also to provide parties in a monogamous marriage to seek
maintenance while the marriage is still subsisting.

In 1906 the Mohammedan Marriage & Divorce Registration Ordinance was introduced to
provide for registration of Islamic Marriages and Divorces.  Please note that it only provides for
registration of marriage or divorce.  The Act is basically procedural and not substantive.

In 1946 we have the Hindu Marriage Divorce and Succession Ordinance being enacted.  This is
where Hindus parted way with Hindu Customary Law, the Act provided that in future all Hindu
Marriages were required 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.
Labels: family law

APPLICATION OF ENGLISH FAMILY LAW

This is an anomaly given that we are decades into independence and yet we still apply English
Laws and English Statutes particular in areas of family law.  This is in 3 ways
a.                   Continued application of common law in form of common law presumptions which still
apply to Kenya, e.g. Common Law Rights of a wife to pledge the husband’s credit.  This has
been applied in Kenya in a number of cases  Pa          tterson v. Nanyuki General Stores, Ramji
Dass Co. v. McDonald

The presumption is that when a wife acquires goods on credit, she is deemed to be acting as the
husband’s agent and the husband will be liable to pay.

In Ramji Dass it was stated that this presumption existed even when the wife and husband were
not living together.

b.         Presumption of Advancement:  This normally arises in a family relationship when a family
member transfers property to another by way of a gift.  The issue arises as to whether the
beneficial interest in that property has been transferred to the other person which is what is
known as the advancement when the property has been wholly transferred to the other person or
whether that other person holds the property in trust for the person who has given it.  Is there an
advancement resulting in a trust?  In common law the presumption does exist if it can be shown
that the intention was to transfer the beneficial interest then there is advancement.

There is authority to the effect that the presumption applies in Kenya, in  Shallo v. Maryam,
Bishen Singh v. Mohinder Singh, Sarah Wanjiku Mutiso V. Gideon Mutiso

In the case of Wanjiku v. Mutiso [1988] Wanjiku and Mutiso were husband and wife.  In 1967,
during the course of their marriage, Mutiso acquired a farm through two loans, both of which
were secured by charges on the farm.  Mutiso was a Member of Parliament but was jailed for 9
and a half years in 1971 for sedition.  Mutiso fell into arrears in mortgage payments.  Mutiso
made out a power of attorney in favour of the wife but he was subsequently obliged to transfer
the farm into her sole name.  He executed a deed of gift to that effect. Subsequently the parties
grew apart and when Mutiso was released they were unable to resume their married life
together.  Mutiso therefore filed suit claiming that his wife held the property as his trustee and
she should transfer the same back.  The issues that arose for consideration were (1) whether the
deed of gift was void; (2) whether there was an express trust in favour of the husband; (3)
whether, in the absence of an express trust, a resulting trust could be applied.

The court ruled in favour of Mutiso and the wife appealed.

It was held

1.                  While the husband did not clearly plead resulting trust, the facts of the case and the plea of
‘trust’ effectively referred to a resulting trust.
2.                  There was no express trust in this case because the transfer was specific and expressly by
way of gift.
3.                  Where property is transferred to another as a gift with the intention that the latter hold it as
trustee for the former, a resulting trust may be implied.
4.                  The presumption of advancement should only be made so as to accord with the social
conditions in Kenya and to conform to the most likely intentions of the spouses.  In this case, the
strength of the presumption would be much diminished.  There was sufficient rebuttal evidence
 that it was not the husband’s intention to make an absolute gift to the wife.  A constructive trust
would therefore be imposed to prevent the wife from taking fraudulent advantage of her
husband.

The Appeal was dismissed.

c.         Presumption of Marriage:       This arises where a man and woman cohabit and call themselves
out as man and wife.  Under this presumption they will be deemed to be married even if they
have not undergone any formal marriage ceremony. Family law is also trying to incorporate
certain situations which do not fall within the family threshold and this is one of them.  Where
parties have not met legal requisites to be called man and wife.  This presumption has been
applied to the Kenyan situation with regard to this assumption the Kenyan courts have stated that
this presumption existed under African Customary Law. 
Wanjiku Yawe v. Public Trustee,
Peter Hinga v. Mary Wanjiku and
R. V Peter s/o Mikhayo
Charles Manjani v. Rosemary Moraa

In Wanjiku Yawe the court found that this presumption can also be found under African
Customary Law in R v. Peter s/o Mikhayo the interesting issue was that of the period of
cohabitation, for how long should you cohabit for this presumption to come into place?  Is it one
year or 10 months?

In Peter s/o Mikhayo, the accused cohabited with a lady for a period of between 4 and 8 months,
then one day he found his lady performing a sexual act in the bush with a man and proceeded to
kill the man.  In his defence on charge of murder, he said that the lady was his wife and he had
been provoked to kill the man.  The court had to consider whether that period of cohabitation
was long enough to trigger a presumption of marriage.  Again this is one of the case relied on
customary law and it held that under Customary law, that period was enough and in fact stated
that under customary law, the moment you start cohabiting the presumption is triggered.

In Charles Manjani v Rosemary Moraa the presumption was said to apply even where the wife
had previously been married to another man, it was held that the presumption would apply and
the first marriage was dissolved during cohabitation but by the time cohabitation started it had
not been legally resolved.

MARRIED WOMEN’S PROPERTY ACT OF 1882

An English Act that still applies in Kenya and is the principle law that applies when apportioning
matrimonial property.  In I v. I and in Antony Karanja v. Karanja

In I v I [1970]   this is the first reported decision of the Kenyan High Court where the Married
Women’s Property Act (MWPA) of England was held to apply in Kenya.  The court also
considered various English authorities and made a finding on the presumption of advancement.
 The husband in this case had acquired a property in England from his earnings and had it
registered in the joint names of the spouses.  The house was subsequently sold and most of the
proceeds used to purchase a house in Kenya which was transferred into the husband’s name. 
The wife had expected that the subsequent property would go into their joint names.

The question before the court was whether the Married Women’s Property Act of 1882 of
England (MWPA) would apply in Kenya.  Further, whether the presumption of advancement to
the wife as a result of the initial transfer to herself of a half-share had been rebutted.
Held:

1.                  The MWPA was a statute of general application in England on 12 August 1897.  It would
therefore apply in Kenya so far as the circumstances of Kenya and its inhabitants permit.  The
MWPA would apply in priority to customary law.  Judicature Act (Cap 8) section 3 considered.
2.                  The presumption of advancement may be rebutted where property was acquired for the
joint use of the spouses.  The presumption that the property was conveyed to the wife for her
own use is however not rebutted if the transfer was effected to defeat creditors.
3.                  In this case, there was a post-nuptial settlement between the parties in relation to the
property of the marriage.  The word ‘settlement’ should be given a wide construction.  Hence,
the court has power under section 28 of the Matrimonial Causes Act (K), which is applicable in
this case.
4.                  The husband in this case had not shown any reason for variation of the prenuptial
settlement between the spouses.

In Karanja v. Karanja during the course of their marriage, the parties acquired several properties
which were all registered in the name of the husband.  One property was acquired from money
supplied by the wife while the other properties were acquired with her direct or indirect
contribution.  The court considered whether customary law would operate to disqualify any
imputation of trust in favour of a married woman, especially one in salaried employment.
Held:
1.                  The Married Women’s Property Act is applicable to Kenya, and customary law is subject
to any written law.
2.                  Even without power to transfer property, the court has power under the MWPA to grant
declarations of ownership of property.  In cases where the property was acquired as a joint
venture, it will be regarded as belonging to the spouses jointly no matter in whose name the
property stands.
3.                  The absence of an agreement or intention that the contributing spouse share beneficially in
the property does not exclude the imputation of such an intention.  This will depend on the law
of trust, which will not distinguish between direct and indirect contribution.
4.                  Where an African husband and wife are in salaried employment, the imputation of a trust
cannot be rejected outright.  This implication would arise where the wife is contributing
indirectly through payments for household and other expenses which the husband would
otherwise have had to pay.
5.                  In this case, the husband held the immovable properties in dispute in trust for himself and
his wife in proportions of two to one respectively.  However, it would not be equitable to order
sale or possession of the Karen property since the husband was residing there with his new
family.
 The final decision of the court to award one-third beneficial interest in the properties to the wife
is commendable.
The Act provides that a married woman is capable of acquiring, owning and disposing of
property as her own separate property and the history to this Act is that under English Law
women could not hold separate property.  This act liberated married women who can now own
and dispose off their own property.

Registration by Reference

1.                  Under the Matrimonial Causes Act Section 3 it provides that the law that is to be applied in
Matrimonial proceedings is that which applies in the High Court of Justice of England.  This
provision exists in our law so when we draft our pleadings in matrimonial and divorce cases we
have to go back to the proceedings in England to see how they do it.

2.                  Section 35 of the Marriage Act which provides that no marriage will be valid if the parties
are within prohibited degrees of affinity according to the law of England.  Again we go back to
English law to find out what are the degrees of affinity and then find out who cannot marry who
in terms of relations.

A major problem is what happens when a law undergoes subsequent changes, do we adopt the
changes wholesale?  The perfect example is in divorce law, the divorce law underwent major
reform in 1970 e.g. when it comes to divorce you find that to obtain a divorce you have to prove
that the other party has been guilty of a fault.  In 1970 in England all these grounds were
removed and there is only one ground that of irreconcilable differences.  In Kenya you still have
to quote one or more of the grounds that are listed in the matrimonial causes Act.

K v K HCCC No. 123 of 1975 where it was held that any amendments which are contrary to our
own laws would not be applicable in our own situation.
Labels: family law

CHANGING ONE’S FAMILY LAW FROM ONE SYSTEM TO ANOTHER

The issue is whether one can change from one system of family law to another e.g. can one
change from English Statutory Law to Customary Law or vice versa?  Theoretically it looks
possible because under S. 76 of the Constitution it is provided that freedom of religious belief is
protected and guaranteed and following from this constitutional guarantee it follows that the
moment you change from your religion, your family law will automatically change as ones
family law is determined by ones religious beliefs.  However it has not been that simple and the
position is that while one can easily change from customary, Hindu or Islamic family law to
statutory law, you have to have changed your religion.  It is not easy to convert from statutory to
Islamic or Customary just by the act of change of faith.  Statutory law still insists on a number of
formalities before one can change from one system to another.
English law started with a situation of non-tolerance of other family law systems other than their
own family law system and you find cases like

Hyde v. Hyde

This case concerned the marriage in 1858 of two Mormons in Salt Lake City, and marriage was
defined in that Ruling as marriage according to Christendom was the ‘voluntary union for life of
one man and one woman to the exclusion of all others’.

Re Bethel [1888]

In this case an English man married a Botswana Woman under Botswana customary law and
they had a child, the husband died and left property in England.  The issue was whether this
daughter was legitimate and could therefore inherit the property in England and the court held
that that marriage was not recognized under English law because it was potentially polygamous
and the daughter was therefore not legitimate and could not inherit the property.  And they
quoted Hyde’s case that marriage was the voluntary union for life of one man and one woman to
the exclusion of all others.

Ex Parte Mir- Anwarrudin (1917)

Had a similar ruling with Re Bethel

The attitude of the English courts not recognizing any other law was also found in Kenya in
colonial times Re Amkeyo  the courts termed the wives in those marriages as concubines and
refused to recognize them as wives,

From 1940 the English Courts started to change their attitude and started recognizing other
family law systems for purposes of entertaining matrimonial causes arising from those systems. 
Note that this recognition was not for purposes of validating them but for purposes of facilitating
the change from those systems to statutory family law systems so that they would recognize
another family law system for purposes of invalidating it or purposes of facilitating change from
that system to the English law system.

During 1940s up through to the present day, courts now do recognize other family law systems
and recognize that you can change from one system to another

Bandail v. Bandail

A Hindu polygamous marriage was recognized for purposes of nullifying in England.

Sowa v. Sowa

In this case, a polygamous marriage was celebrated in Ghana where the parties were domiciled. 
Prior to the ceremony the husband promised the wife that he would go through a later ceremony
which, according to the law of Ghana, would convert the union into a monogamous marriage. 
He failed to carry out his promise.  It was held that, despite his promise and despite the fact that
the husband had not taken an additional wife, the marriage continued to be regarded as
polygamous.

The English courts also made rulings as to what acts could change a polygamous marriage to a
monogamous marriage.  The first act was a change of religious belief of faith which then
affected the parties legal status was the first act to be recognized.

BY CHANGE OF RELIGION

Sinha Peearage Case [1946] 1 All E.R. 263 P.C

The parties changed their Hindu Sect from one practicing polygamous marriage to one practicing
monogamous marriage.  It was held that changing their religious beliefs changed their marital
status and the polygamous marriage was changed to a monogamous one.

A.G Of Ceylon v Reid [1965] A.C. 720

Local Legislation is one recognized way with the aim of changing the character of ones family
law system.

BY STATUTE

Parkasho v. Singh [1967] 1 All E.R.

A statute converted Sikh marriage from being polygamous marriage to monogamous marriage
and it was held that it was out of these religion changes that family law of Sikhs was changed. 
The legislation must be full legislation that deals with all marriages in that category.

Under our own Christian Marriages Act it is your religion that determines whether you can
change your category of marriage.

Where there is a second ceremony of marriage that is designed to change one status from
polygamous to monogamous union.  This is the kind of situation which would obtain under the
African Marriage and Divorce Act

Ohochuku V. Ohochuku [1960] 1 All E.R. 253

The parties had been married under Nigerian Customary Law and then underwent a Christian
Marriage. Under English law which created a monogamous marriage

BY CHANGE OF DOMICILE

Ali v. Ali
This case provides authority for the proposition that, if a husband changes his domicile from a
country that permits polygamy to one which does not, this change of domicile renders the
marriage monogamous.

Change of Domicile

Domicile is essentially ones permanent home or the place that one intends to set up their
permanent residence and in this case the parties had contracted a polygamous marriage in India
but the marriage had remained a de facto monogamous marriage.  They then changed their
Domicile to England which changed their marriage into a dejure monogamous marriage.

The English accepted in two phases gradually recognizing other family law systems for the
purposes of nullifying those unions or converting them into English systems, but never vice
versa.

The Kenyan situation is very much like the English one. Kenya statutes do provide for the
change from one system to the other.  Section 11(b) of the Marriage Act implies that one can
change their customary or Islamic law marriage into a Christian marriage.  When you apply for a
marriage certificate there must be an Affidavit stating that neither party is married under
customary or Islamic law to any other person they intend to marry

Section 9 of the African Christian Marriage and Divorce Act provided for parties who are
married under customary law to marry under the Act if they wish to do so and there are a number
of parties that

The Islamic law under section 5 (6) also in any way does provide of conversion of customary
law marriages to Islamic marriages, though not directly.  The section makes it an offence for one
to convert to Islamic marriage from other marriages unless there is a divorce.

In our situation one can change ones family law

Case Law

Ayoob v.  (1968) E.A. 72

Estate of Ruenji
Re Ogolla’s Estate

In Ayoob case the parties were Muslims and they got married under the Marriage Act as the
statutory law marriage.  On the same day they were married under Muslim Law.  Subsequently
the husband divorced the wife by way of talak a Muslim form of divorce. He then went to court
seeking a declaration that his marriage had been lawfully resolved. It was held that the husband
by performing the talak was able to divorce the Muslim marriage but if he wanted to divorce the
statutory law marriage he would have to file for divorce under the Matrimonial Causes Act.  The
court is saying that the act of contract of a Muslim marriage after the statutory law marriage does
 not convert the statutory law marriage so that the statutory law marriage was still persisting and
had to be divorced by following court procedures

Ruenji and Ogola – facts are similar

Estate of Ruenji

The deceased a Kikuyu by tribe and domiciled in Kenya, died leaving a gross estate of about
53,000 shillings.  It is not disputed that he was married to one Loise Murugi Mbiri under the
African Christian Marriages Act in 1941.  It is also alleged that the deceased subsequently
married two other ladies, namely Mary Waithira and Mary Wanjohi according to the Kikuyu
customary law and had children by them.  The public trustee and the lawyer for Loise submitted
that the first question that must be decided is whether in view of the deceased’s first marriage
under the African Christian Marriage and Divorce Act the deceased could enter into one or more
other lawful marriages.  Marriage under the African Christian Marriage and Divorce Act is
meant to be a Christian marriage and that parties become legally bound to each other as man and
wife so long as both of them shall live and their marriage cannot be dissolved during their
lifetime except by a valid judgment of divorce and that if either of them (before the death of the
other) should illegally contract another marriage while their marriage remained undissolved, the
offender would be guilty of bigamy, and liable to punishment for that offence.  It is apparent that
the deceased had not divorced Loise during his lifetime, and that, consequently, any subsequent
marriage would be illegal.

In both Ruenji and Ogola a man married his first wife under statutory law and then contracted
second marriage under customary law.   The man died and the question arose whether both wives
could benefit from the husband Estate.  The court held that the second wives were not recognized
under Statutory law because the man did not have capacity to contract a second marriage and
they therefore they and their children could not inherit from the man’s estate.  The court is saying
that the man could not convert from a statutory way of life that he had committed himself to. 
The second wives were not recognized.

These two cases were instrumental in leading to Succession Law and in our Law of Succession
Act whilst even under customary law wives can inherit irrespective of the fact that the husbands
could have married previously under statutory law.

The current bill to amend the constitution addresses this issue by giving equal recognition to all
the systems under the constitution.  Family law system will be protected and once one changes
their religion as a result that change will be recognized and guaranteed.  What is remaining is to
recognize and bring all the system under one system and give them constitutional protection.

Other ways in which family law might be changed

1.                  Where one marries someone practicing another family law system:  for example if a person
practicing a customary law system marries a person practicing Islamic law normally the
implication is that that marriage will bestow upon the parties a new family law system and
normally the operating law system will be that of the man. Ours is a patriarchal society.
2.                  one can also acquire a new family law system by change of Domicile 

Ali bhai   a family was allowed to change their family law system after settling at the Kenya
Coast. From Hindu to Islam.

Change of Family Law in other jurisdiction - cited under conflict of marriage laws

Manjany v Ndongo (1967) JAL 13

Mokhotu  v. Manyaapelo - Lesotho

Onwudinjo v. Onwudinjo [1962] J.A.L 49-52 - Nigerian
Bakari v.  Kichunda (1973) L.R.T Tanzania
Rattansey v. Rattansey (1960) E.A. - Tanzania

These cases dealt with change of family law system,

These cases - most of commonwealth jurisdiction have basically adopted the Kenya position that
is, you cannot change ones family law system just by changing ones religion especially if it is
from statutory law system to other family law system.

Onwundinjo v. Onwundinjo was a succession matter, the other wife could not inherit because the
husband had contracted an earlier statutory law marriage.

In Manyaapelo a second customary law marriage between the parties was declared null and void
because at the time of contracting the husband had not validly divorced the first wife who he had
married under statutory law.

In the Gambia in Manjany vs. Ndongo the courts recognized you could change from statutory to
Islamic law marriage by contracting an Islamic marriage ceremony after the statutory marriage
ceremony

In Ayoob the facts are similar to Manjany but the courts ruled differently. 

In Ayoob, the appellant a Sunni Muslim, and the respondent, a Shiite Muslim, were married in
accordance with the Marriage Act (Cap 150).  A marriage under this Act is monogamous. 
Subsequently they went through a ceremony of marriage according to Mohammedan Law, the
respondent by then having adopted the doctrines of her husband’s sect.  The appellant later
purported to divorce the respondent by pronouncing talak.  The Appellant then, by petition to the
High Court, sought a declaration that his marriage to the respondent was lawfully dissolved.  The
learned judge held that a marriage under the Marriage Act was not a Mohammedan marriage and
that it could only be dissolved during the joint lifetime of the spouses by a valid judgment of
divorce pronounced under the Matrimonial Causes Act (Cap 152) and he accordingly dismissed
the petition.
 In Rattansey the facts were similar but the courts held that the talak terminated the statutory law
marriage earlier contracted.

Gambia and Tanzania – these can be distinguished from other commonwealth countries in the
sense that they have made an attempt to recognize their own family laws and Islamic Law and
Statutory Law in Gambia are equal.

CONFLICTS THAT ARISE

The conflicts that arise are in 3 main respects

1.                  Conflict between statutory and other systems of family law because of the reluctance by the
court to recognize that one change from statutory to other family laws.  E.g. parties will get
married under statutory law and continue to live their customary way of life and in the process
contract customary law marriages and the issue is to what extent will that customary law apply to
people married under statutory law?

There are situations such as Re Ogola arising or stories of people having gotten married under
statutory law and then getting married under customary law and later to realize that they have
committed an offence.

2.                  Different Customary Law systems especially African customary law system.  This problem
is exacerbated by the fact that the Kenyan population is becoming urbanized and when we say
that the Kenya customary law applies, which is the customary law and especially for people who
live in urban areas and do not practice any customary law.

3.                  Statutes – two examples will be between the Marriage Act and the Law of Succession Act
whereby under the Marriage Act marriages are strictly monogamous and it is an offence to
conduct a second marriage but the Law of Succession gives recognition to potentially
polygamous marriage and that they can inherit under this law.  Under the Matrimonial Causes
Act there is no provision for application of customary law in determining the fate of the
children.  Under the children’s act the act provides that in matters determining custody of
children one of the matters to be taken into account are the customs affecting that child.  So in an
attempt to accommodate African system of law the children are brought in a concept not present
in other Acts.  Unless there is a total overhaul of the statutes in the family law arena where they
are harmonized and put on the same wavelength we shall continue having these conflicts of four
different family law systems.