[2004] KEHC 1719 (KLR)
The court found that the parties, being of Caucasian race, did not fall within the definition of 'African' as required by the African Christian Marriage and Divorce Act, Cap.151. Since the Act only applies to marriages of Africans, the purported marriage was null and void ab initio. The absence of a specific ground...
Source-derived case information.
- Citation
- [2004] KEHC 1719 (KLR)
- Parties
- Applicant: Caroline Diana Jones; Respondent: Thomas Lyle Jones
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 118 of 2003
- Procedural Posture
- Divorce Cause / Judgment
- Outcome
- Marriage declared null and void ab initio; decree of nullity granted.
- Judges
- DW Mbuteti
- Legal Topics
- Marriage Annulment, Racial Capacity, Statutory Interpretation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Caroline Diana Jones
Applicant
Thomas Lyle Jones
Respondent
Procedural Posture
Divorce Cause / Judgment
Legal Issues
- 1 Whether a marriage contracted under the African Christian Marriage and Divorce Act, Cap.151, by non-Africans is valid.
- 2 Whether the court has inherent power to declare such a marriage null and void ab initio despite procedural impropriety.
Ratio Decidendi
The court found that the parties, being of Caucasian race, did not fall within the definition of 'African' as required by the African Christian Marriage and Divorce Act, Cap.151. Since the Act only applies to marriages of Africans, the purported marriage was null and void ab initio. The absence of a specific ground in the Matrimonial Causes Act for this type of nullity did not preclude the court from exercising its inherent jurisdiction to declare the marriage void, as justice required such an order in the circumstances. The court relied on precedent where a similar situation was adjudicated, reinforcing the principle that racial capacity under the statute is a prerequisite for a valid...
Court Disposition
Marriage declared null and void ab initio; decree of nullity granted.
Orders
- A decree of nullity is issued; decree nisi to issue forthwith and may be made absolute before expiration of three months.
- No order as to costs.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
DIVORCE CAUSE NO.118 OF 2003
CAROLINE DIAN JONES ……………………....………. PETITIONER
VERSUS
THOMAS LYLE JONES ……………………………… RESPONDENT
JUDGMENT
By amended petition dated 20th February, 2004 the Petitioner herein, CAROLINE DIANA JONES, seeks annulment of her marriage to the Respondent, THOMAS LYLE JONES. The marriage was celebrated on 22nd January, 1999 at the Evangelical Lutheran Church, Nairobi and was contracted under the African Christian Marriage and Divorce Act, Cap.151. There are no issues of the marriage. The ground for seeking annulment of the marriage is to be found in paragraph 6 of the amended petition. It is that at the time the marriage was celebrated and contracted neither the Petitioner nor the Respondent were Africans within the meaning of the African Christian Marriage and Divorce Act. Needless to say, the parties, who are of the Caucasian race, have so far not changed their race. I doubt that sort of things is possible. But who knows!
Section 3(i) of Cap.151 is in the following words:-
“3. (i) This Act shall apply only to the marriages of Africans one or both of whom professes the Christian religion and to the dissolution of such marriages.”
The term “African” is not defined in the Act. Nor is it defined in the Interpretation and General Provisions Act, Cap.2. But there can be no doubt that the term applies to the indigenous peoples of this country, and certainly not to people of European or Caucasian races.
The parties herein could thus not celebrate or contract a valid marriage under Cap.151 as they were not Africans. Their purported marriage was therefore null and void ab initio, and must be declared so. There is little difficulty, though. This is that the ground advanced herein for the order of nullity sought is not one of the grounds set forth in section 14 of the Matrimonial Causes Act, Cap.152, upon which a marriage may be declared null and void. But this court has the inherent power to make such order as is necessary to meet the ends of justice depending on the particular circumstances of the case before it. Here we have two persons purporting to celebrate and contract a marriage under a statute that was clearly not appropriate to them. In essence they did not have the requisite racial capacity to contract the marriage, and the same was clearly null and void from the beginning. The marriage should not be let to stand, notwithstanding any procedural impropriety in these proceedings. I note that the Hon. Mr. Justice A. B. Shah (as he then was) was confronted by similar circumstances in the case of MICHELE CHRISTINE STEPHENSON –VS- GRANT BARTER STEPHENSON Nairobi HC. Divorce Cause No.6 of 1994 (unreported). In that case the parties, who were of European origin in race, had celebrated and contracted a marriage under the very same Cap.151. The learned Judge had no difficulty declaring the marriage null and void ab initio. Like Mr. Justice Shah, I would declare the marriage between the Petitioner and the Respondent null and void ab initio. I hereby do so. In doing so I deeply deprecate the unfortunate fact, so long after reclaiming our own sovereignty, and after working so hard at developing a harmonious multi-racial society, we should still have in our statute book such a blatantly racist statute as the African Christian Marriage and Divorce Act, Cap/151.
There will be a decree of nullity, and a decree nisi shall issue forthwith. The same may be made absolute before expiration of three months. There will be no order as to the costs of these proceedings.
It is so ordered.
DATED SIGNED AND PRONOUNCED AT NAIROBI THIS 27TH DAY OF FEBRUARY, 2004.
H.P.G. WAWERU
JUDGE