As well as a vision of a new Kenya - a truly democratic Kenya with accountability as a key value - the constitution also has a vision of a new sort of relationship between men and women, and their relationships with children. That is a relationship of equality, respect and responsibility. What has it achieved?
Marriage
Before the constitution, marriage of children was common, particularly customary law marriages. Under Islamic law there is no rigid rule but generally people could marry once they reached puberty. The Kenyan law on Hindu marriage said that the male must be at least 18 and the female at least 16. No Act regulated customary law. But under Article 45 Parliament must pass laws recognising marriages under any tradition, or system of religious, personal or family law. Parliament did more than that because it changed the various systems in different ways. It also recognised the polygamous nature of customary and Islamic law.
The constitution made it clear that the preferred
minimum age of marriage was 18 when it says every adult has the
“right to marry”. But it did not of itself ban younger marriage. A judge was wrong
to say that the constitution itself
“outlaws” marriage below age 18. Several people had been
prosecuted in 2011 under the Children Act 2001 for “subjecting a child to early marriage”. The
Council of Imams and Preachers challenged this, including on the basis of the right to religion.
However, while everyone - and not just government - must
respect constitutional rights, they may be limited or interfered with by law and
for a good reason. On that basis, the judge also held, any right to religion could be limited
in the interests of children.
Now the 2014 Marriage Act says no one under 18 may marry - applying to all types of marriage. It makes any marriage of anyone under 18 “void” - no marriage. And if any sort of marriage is not registered, it is “voidable” - it can be declared invalid. However, it not clear how such a decision would be made.
Realistically many child marriages still take place, by one estimate about 13 per cent of marriages, and many customary marriages must be unregistered. I worry a bit whether there might be negative effects of being told you were not married though you thought you were - maybe in terms of the status of a child, or inheritance of property.
We come we stay “marriages” - prolonged
cohabitation - are common in Kenya. But the
law, in the court cases, is if anything becoming more confused. The Supreme Court
has said, “It is time for the National Assembly and the Senate, in collaboration with the
Attorney General to formulate and enact statute law that deals with cohabitees in long-term relationships;
their rights, and obligations.”
Children
Article 53 on the rights of children says that children have the right to parental protection ¾whether the parents are married to each other or not. Courts have used this to insist that separated parents should both take some responsibility for child maintenance if they can afford it.
The Article also says, “A child’s best interests are of paramount importance in every matter concerning the child.” This language was incorporated into the new Children Act in 2022, and has been used to make decisions including about child custody between divorced or separated parents. Notably courts have sometimes departed from past assumptions, such as that young children should necessarily be with their mother.
Property
Relevant constitution provisions include Article 68 that says law must “regulate the recognition and protection of matrimonial property and in particular the matrimonial home during and on the termination of marriage”.
There is general prohibition of discriminatory treatment on the basis of factors including sex, pregnancy or marital status (Article 27). A more specific provision is in Article 60(1)(f) on the land policy principle: “elimination of gender discrimination in law, customs and practices related to land and property in land”.
The Matrimonial Property Act (passed to implement the constitution) protects the matrimonial home in several ways, including requiring a court order for one spouse to evict the other, requiring the consent of both to the mortgage of the home and the possibility of registering one’s interest as a spouse in the land registry to alert possible purchasers.
Many cases, some before 2010, have held that women, even if married, are entitled to inherit from their parents, despite customary law rules. In 2023, Justice Anthony Mrima said, “With the promulgation of the Constitution 2010, particularly Article 27 … the time has now come for those discriminative cultural practices against women be buried in history.”
A controversial recent case held that children born to Muslims but whose parents were not married were not excluded from inheriting from their father. The Supreme Court said, “All laws, including religious or customary law, must be interpreted and applied through the lens of the Bill of Rights.” The court was not prevented from deciding this by Article 24(4) that excludes equality challenges in the Kadhi courts. The case had begun in the High Court.
There have been many cases about what happens to property on divorce. Some have argued claims that Article 45 on “Family” which recognises parties to a marriage as “entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage” means that property must be shared equally.
However, in 2023 the Supreme Court held that the right approach was “considering the respective contribution of each party to ensure no party is unfairly denied what they deserve as well as ensuring that no party is unfairly given more than what he or she contributed.” Contribution, courts say, is not just financial. How far this applies to cohabitation is an aspect of the confusion mentioned earlier.
Divorce
A man married under Muslim laws may divorce his wife by formal pronouncement (Talaq) - a possibility protected from being declared unconstitutional by Article 24(4). However, an important contribution especially for women, including those seeking divorce, has been the constitution’s recognition of Kadhi courts, and their extension across the country.
One Abdulkadir Hashim wrote in 2024 that many kadhis are progressive in their approach in protecting the rights of women. What he calls “neo-kadhis” are “influenced by contemporary Muslim legal opinions and conventional legal trends and constitutional instruments such as the Constitution of Kenya”.
A Kenyan court recently rejected a petition seeking to get no fault divorce recognised. So, to be divorced from a civil, Christian or Hindu marriage it is still necessary to prove something specific, rather than saying that both parties want to divorce (although a two-year agreed separation is sufficient for some).
However, courts have made the ending of marriages a bit easier. The requirement that a petition to annul a marriage be brought within one year after marriage was declared unconstitutional - interfering with the rights to equality, freedom of conscience and access to courts. And the Court of Appeal held that it was wrong to require everyone with grounds for divorce to wait until they had been married for three years before they could start divorce proceedings.
They wanted Parliament to change the law to allow for exceptions where necessary. This not having happened by mid-2025, the three-year waiting period no longer is law. Finally: the right to be free from violence from any source (Article 29) has not led to declaring unconstitutional the Sexual Offences Act Section 43(5) that protects husbands from liability for raping their wives. Ironically that Act assumes that intercourse involving a wife is necessarily welcome, while with someone under 18 it is forced. (I note, however, that a recent High Court case held that the Director of Public Prosecutions should not assume the latter and should not prosecute in the case of genuinely consensual acts between adolescents.)
Jill is a retired law teacher and member of the Katiba Institute Board. The author writes in her personal capacity
