It’s time for MPs to review ‘outdated’ marriage laws

By Judy Thongori
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Families need you to make and review family laws. You must know that the state of our family laws is unacceptable, Honourable Members.  The laws are outdated, conflicting and represent a value system that was imposed on us in the colonial period. The following are  marriage laws and the dates that they came into effect;

(i). The Marriage Act  that commenced in 1902

(ii). The Subordinate  Court (Separation and Maintenance)Act  that commenced in 1929

(iii). The Mohammedan Marriage & Divorce Registration  Act  that commenced in 1906

(iv). The Mohammedan Marriage Divorce and Succession Act that commenced in 1920

(v). The Matrimonial Causes Act – 1941

(vi). The Hindu Marriage & Divorce Act -1960

(vii). The African Christian Marriage & Divorce Act- 1931

Obviously, these laws were debated with little or no representation from any indigenous Kenyans.  Whose values do they represent? There have been amendments over time but certainly very limited.

In 1967 founding father Mzee Jomo Kenyatta constituted a Commission and tasked it with reviewing the law on marriage and divorce. Several attempts to pass the resultant Marriage Bill were unsuccessful.

What we are still doing with the same said laws in our statute books 47 years later while our people continue to suffer?

The Musyoki family experience best illustrates the suffering;

Musyoki was a happy-go-lucky young man. He met and married Gathoni in a beautiful wedding under the Marriage Act. They begot two lovely children and had high and low moments in the marriage as happens in many marriages. One of the low moments resulted in a separation during which Musyoki impregnated a young lady, Kwamboka. A child was born and they lived together for three years after which Musyoki  and Gathoni reconciled.

Kwamboka was shocked by the turn of events and especially after Musyoki refused to provide child support. After six months of not hearing from Musyoki she sued him for child maintenance and support. She claimed that the three years she had lived with him amounted to a marriage.

Musyoki denied the marriage and stated that he was married to Gathoni in a monogamous union and that he lacked the legal  capacity to marry Kwamboka. As for the child, he acknowledged being the father but stated that he had no duty to provide maintenance as the child was not born in a marriage.  After hearing the case, the Judge ordered Musyoki to pay for the child’s maintenance.

On Kwamboka’s claim, the court found that she was not a wife to Musyoki as his marriage to Gathoni was monogamous and therefore she had no right to claim maintenance.

The Musyokis moved on with their lives and continued to pay maintenance for Kwamboka’s child. The marriage hit many other lows and resulted in another separation. Musyoki met a woman identified as Mercy. They lived together for three years and had a daughter. He reconciled with Gathoni after the three years and moved back home. 

Unfortunately, Musyoki passed away, 6 months after he reconciled with Gathoni. Two months later, Gathoni applied for letters of administration in respect of the estate of Musyoki. The Notice of the application for letters of administration was gazetted as required and those with objections were invited to do so within 30 days.

Gathoni was served with an objection by Kwamboka on behalf of her son stating that he had been left out as a heir. She was also horrified to be served with an objection from Mercy  who claimed that she and her daughter were heirs. Gathoni and her children fought all the claims but in the end the court decided that Kwamboka’s child was a dependant of the estate because Musyoki had paid for his maintenance and acknowledged him as a son.

The court also held that Mercy was also a wife under the laws of Succession Act despite the fact that Musyoki had a monogamous marriage existing because the Law of Succession Act  permits a woman in the situation of Mercy and her child to be considered a wife and child, only for purposes of inheritance.

Honourable Members, the above situation is true of many people  in your constituencies. Many people have been rendered destitute as a result of the application of the inconsistent laws; please do not just give handouts, when they  seek your help. Enable us by having laws that give us certainty in our lives.