Pursuant to a three – Judge bench Constitutional Court judgment delivered on 29th October, 2020 in the Consolidated Human Rights High Court Petitions 284 and 353 of 2019 by the Hon. Justices Ngaah Jairus, Anthony Ndungu and Mumbua T. Matheka, 23 Acts of Parliament were declared unconstitutional, null and void. The Acts declared unconstitutional are……
Time for Reforms in Marriage Laws
Marriage. Buying a house. Having children – a dream come true and utopia for any young Kenyan. And then, sometimes, a broken dream. A broken marriage for whatever reason. Divorce or separation tug of war for children, splitting of the house and properties. And then begins the Kenyan legal nightmare related to marriage laws, childrens’… Continue Reading →,
Marriage. Buying a house. Having children – a dream come true and utopia for any young Kenyan. And then, sometimes, a broken dream.
A broken marriage for whatever reason. Divorce or separation tug of war for children, splitting of the house and properties.
And then begins the Kenyan legal nightmare related to marriage laws, childrens’ rights and matrimonial property laws. It is a drama of legal musical chairs where parties are shuttled from one court to another often for years. Recalcitrant fathers generally evade paying maintenance and multitude of applications result in a laughable merry -go-round.
On 1st March 2002, the Children’s Act of 2001 came into force protecting the rights of the children generally in and out of marriage.
The Matrimonial Property Act was enacted in 2013 and came into force on 16th January 2014. The Marriage Act, 2014 then came into force on 20th May, 2014. It consolidated various laws relating to marriage and divorce. All the enactments mentioned have different regimes, different scopes and different jurisdictions.
“Jurisdiction” is the cardinal word – in a broken marriage, the present laws relating to divorce and maintenance must be filed in the Resident Magistrates Courts under Section 3 of the Magistrates Courts Act.
All matters relating to children, however, must go to Children’s Court under Section 73 of the Children’s Act 2004.
And the new 2010 Constitution created the Environment and Land Courts. All disputes relating to matrimonial properties by practice must be decided by this court of equal status. Some legal pundits argue that matrimonial property matters must go to main stream High Court.
So, the upshot of the sad case of a broken marriage with children is that warring parties, whether man or woman, have to go to three different courts to seek redress.
The High Court, whilst conceding jurisdiction, has now by practice and precedent stated that matters of matrimonial properties and allied matters must be decided by Environment and Land Court.
In the case of John Kimani Njenga v Margaret Wanjiru Kanyiri & 2 others  eKLR, it was stated that Environment and Land Court had jurisdiction to hear and determine a matter that related to ownership of land in purchased during a marriage.
In deciding Matrimonial Property matters, the ELC must be guided by national values outlined under Article 10 of the Constitution of Kenya, 2010. The case of F W M v M K  eKLR relates to matrimonial dispute that was decided by Environment and Land Court in the interest of fairness and equity. Judge B.N. Olao cited Article 45 (3)of the Constitution which reads thus;
“Parties to a marriage are entitled to equal rights at the time of the marriage, during the
marriage and at the dissolution of the marriage.”
Similarly, Section 18 of the Environment and Land Court Act provides that in exercising it’s jurisdiction under this Act, the Court shall be guided by thevalues and principles under Article 10 (2) of the Constitutionas well as the principles of equity.
In the case of B W M v J M C  eKLR, J. G. Kemei stated that the Matrimonial Property Act does not define the Court in which disputes relating to the matrimonial property should be referred for determination. It is thus the current legal position that concurrent jurisdiction is given to various Courts to hear disputes relating to matrimonial property rights including Environment and Land Court.
The limitation applicable to this Court is that it can only hear such disputes if they involve or relate to occupation use and title to land.
In the case of N S G v S C G  eKLR, Judge S. Okong’o stated as follows;
“There is no doubt from the foregoing that this court has jurisdiction to determine the dispute before it which revolves around title to land. On whether the court can determine a dispute over matrimonial property, my view is that so long as the dispute is over the use, occupation or title to land, this court has jurisdiction to determine it whether such land is classified as matrimonial property or not. My view finds support in the decisions in the following cases:
In Jane Wambui Ngeru v Timothy Mwangi Ngeru (supra) the court stated as follows:
“In addition if rights to matrimonial property are in dispute, section 17 of the Matrimonial Property Act of 2013 provides as follows:
(1) A person may apply to a court for a declaration of rights to any property that is contested between that person and a spouse or a former spouse of the person.
(2) An application under subsection (1)—
(a) shall be made in accordance with such procedure as may be prescribed;
(b) may be made as part of a petition in a matrimonial cause; and
(c) may be made notwithstanding that a petition has not been filed under any law relating to matrimonial causes.
No particular Court is identified by the Act, and can therefore be any Court that has been given jurisdiction to hear matrimonial disputes. The High Court is in this regard granted original and unlimited jurisdiction in civil matters by the Constitution under Article 165(3). The Marriage Act of 2014 in addition provides that the courts that will hear matrimonial causes arising under the Act are resident magistrate’s courts and within the limits provided under the law as to their jurisdiction. It is thus the current legal position that concurrent jurisdiction is given to various courts to hear disputes relating to matrimonial property rights including this Court. The only limitation applicable to this Court is that it can only hear such disputes if they involve or relate to land.”
The Law Reform Commission needs to revisit the jurisdictional aspects of the three sets of law.
There is a dire need of all the matters of divorce, children of the marriage and the matrimonial property disputes being decided in one form and in one court and in one single case.
Why citizens should be exposed to multiple jurisdictions and long, expensive and cumbersome procedures is a matter which needs close scrutiny.
By Pravin Bowry.