[2004] KEHC 2654 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT, AT NAIROBI

DIVORCE CAUSE NO 72 OF 2002

G G W .........….……….……..PETITIONER

VERSUS

R M W W….….…………..RESPONDENT

RULING.

When this divorce cause came up for hearing before me on 28. 10. 04, the petitioner appeared with his counsel Mr Olewe. The respondent did not however, appear, neither was she represented by counsel. Petitioner’s counsel informed the Court that the respondent was duly served with that day’s hearing notice and I allowed the case to proceed to hearing.

It transpired when hearing started that the marriage between the petitioner and respondent was contracted under the African Christian Marriage and Divorce Act (cap 151). I asked petitioner’s counsel why the cause was not filed in the lower court and he responded that previously when divorce causes were filed in the lower courts irrespective of the statute under which the marriages were contracted, registries in lower courts would turn the parties away and said divorce jurisdiction lay with the High Court.

He said that in Divorce Cause No 85 of 2000, Fred Kang’ethe Mungai – vs- Esther Wangariin which he, Mr Olewe represented the petitioner, the parties were married under the African Christian Marriage and Divorce

Act. He tried to file the divorce cause at Milimani Subordinate Court Nairobi, but was turned away and referred to the High Court. He filed the cause in the High Court under the same number and the High Court (Osiemo, J) heard and disposed of the cause. Counsel also said that another High Court Judge (Koome, J) had heard and disposed of at least one divorce cause he (counsel) was aware of although he did not have the citation.

Petitioner’s counsel submitted that the High Court has inherent jurisdiction and can deal with any matter under the sun. Asked if he was aware of the ruling in High Court Divorce Cause No 181 of 2000, Faith Nyawira Ngatia Karungaru –vs- Wilson Ngatia Karungaruin which Waweru, J held that divorce causes in respect of marriages contracted under the African Christian Marriage and Divorce Act (cap 151), or even those contracted under the Marriage Act (cap 150) in which the parties were Africans who professed the Christian faith, were triable in the first instance by subordinate courts of the first class and that the High Court had only appellate jurisdiction in respect of such marriages, petitioner’s counsel said he was indeed aware of the High Court Ruling in Karungaru’scase.

However, he (counsel) pleaded with the Court to hear and determine the present divorce cause since it was filed in the High Court in 2002, which was before Waweru, J’s ruling in Karungaru’scase (supra). He urged that the ruling in Karungaru’scase should not be visited upon the petitioner as it was delivered after the petitioner filed this cause and before the said ruling was delivered.

I called for the file on High Court Divorce Cause No 85 of 2000, Fred Kang’ethe Mungai –vs- Esther Wangarialluded to by petitioner’s counsel.

The marriage in that case was actually contracted under the Marriage Act (cap 150) and not under the African Christian Marriage and Divorce Act (cap 151) as stated by the present petitioner’s counsel. This fact would, of course, make no difference to the ruling in Karungaru’scase since the judge held that divorce causes for marriages under both the African Christian Marriage and Divorces Act and under the Marriage Act are triable by the lower court so long as the parties are Africans who profess the Christian faith. It is, however, true that Osiemo, J heard and disposed of the High Court Divorce Cause No 85 of 2000, Fred Kang’ethe Mungai – vs- Esther Wangariwhere the parties appear to be African Christians.

I have also had sight of the file on High Court Divorce Cause No 68 of 2000, Rossyline Wambui Mbugi –vs- Fredrick Njeru Nthigawhereby the parties contracted their marriage under the African Christian Marriage and Divorce Act and yet the High Court (Aluoch, J) heard and disposed of the cause.

Likewise I have had sight of the file on High Court Divorce Cause No 211 of 2001, Clare Wanjiru Mwangi –vs- Femin Bwire Mabachi and Catherine Abonyo.In that case the petitioner, Clare Wanjiru Mwangi and the first respondent Femin Bwire Mabachi were married under the African Christian Marriage and Divorce Act, yet the High Court (Koome, J) heard and disposed of the cause.

Finally, I have had sight of the file on High Court Divorce Cause No 68 of 2004, J Betty Kamende Kitivo –vs- Maurice Ndambuki Kitivo.The parties in that case were also married under the African Christian Marriage and Divorce Act yet the High Court (Kamau Ag J) heard and determined the cause.

It is clear from the foregoing that there has been no uniformity as to where divorce causes arising from statutory marriages between African Christians have been filed and tried. This is confusing as counsel for the petitioner intimated what then is the correct legal position with regard to jurisdiction over matrimonial causes arising from marriages contracted by African Christians, whether under the African Christian Marriages and Divorce Act (cap 151) or under the Marriage Act (cap 150)

It is trite general procedural law that every suit shall be instituted in the Court of the lowest grade competent to try it. This is clear from section 11 of the Civil Procedure Act (cap 21). And section 3 of the Christian

Marriages and Divorce Act (cap 151) provides as follows:

“3. (1) This Act shall apply only to marriages of Africans one or both of whom profess the Christian religion and to the dissolution of such marriages.

(2) Nothing herein contained shall prevent any African marrying under the Marriage Act, but if one or both parties to a marriage under the Act are Africans professing the Christian religion the provisions of this

Act relating to dissolution of marriage shall apply to such marriage as if it were a marriage under this Act”

Section 14 and 15 of the same Act provide:

“14. Subject to the provisions of the African Christian

Marriage and Divorce Act, the jurisdiction under this Act the Native Christian Marriage Act (now repealed), is as vested in the Supreme Court by virtue of the Matrimonial Causes Act,

15. An appeal shall lie from the decrees or from any part of the decrees, and from orders, of subordinate courts under section 14 of this Act to the Supreme Court.”

And section 3 of the Matrimonial Causes Act (cap 152) provides as under:

‘3. Subject to the provisions of the African Christian

Marriage and Divorce Act, the jurisdiction under this

Act shall only be exercised by the Supreme Court (herein after called “the Court”) and such jurisdiction shall, subject to the provisions of this Act, be exercised in accordance with the law applied in matrimonial proceedings in the High Court of Justice in England.’

The African Christian Marriage and Divorce Act came into operation on 1712. 31 while the Matrimonial Act came into force on 01. 01. 41. Both statutes were, therefore, enacted well before Kenya attained independence from Britain. There have been minimal amendments to the two Acts since independence, mainly formal, such as replacing “Ordinance” with “Act” and that sort of thing. The substance of the two Acts otherwise remains as formulated during the colonial era.

One of the issues raised in Karungaru’scase (supra) is that of discrimination. It was contended by counsel for the petitioner that the provisions of the African Christian Marriage and Divorce Act were discriminatory to the petitioner on racial grounds as they shut out Africans from the High Court in matrimonial causes initially. The learned judge (Waweru, J) observed that while that may well be so, it was an issue to be raised in appropriate constitutional proceedings. He, therefore, transferred cause to the Resident Magistrate’s Court, Milimani, Nairobi for disposal.

I am not aware if any constitutional or appeal proceedings were taken out by the petitioner in Karungaru’s caseto challenge the High Court ruling in that case. Meanwhile the High Court has on a number of occasions heard and determined divorce causes arising from marriages contracted by African Christian Marriage and Divorce Act or under the Marriage Act as illustrated above.

There is no doubt that the African Christian Marriage and Divorce Act makes clear provisions at sections 3, 14 and 15 thereof to the effect that African Christians must file proceedings for dissolution of their marriages in subordinate courts of the first class and that the High Court should get involved in such proceedings only in exercise of its appellate jurisdiction. And section 3 of the Matrimonial Causes Act, which may be described as the general substantive and procedural law on matrimonial causes, acknowledges the African Christian Marriage and Divorce Act as the ruling statute for matrimonial causes between African Christians. Do the provisions of the African Christian Marriage and Divorce Act oust the unlimited civil jurisdiction conferred on the High Court under section 60 (1) of the Constitution of Kenya? I do not think so. Rather, I am of the view that provisions such as found in section 11 of the Civil Procedure Act and in section 3 of the African Christian Marriage and Divorce Act are intended to cater for orderly management of cases which come before the courts so that they are filtered and dealt with at different levels of the judicial system, generally as a matter of division of labour for good and orderly case management.

While a subordinate court is incompetent to deal with cases reserved for the High Court, the High Court does, in my respectful view, by virtue of its unlimited jurisdiction conferred by the Constitution, have jurisdiction to try cases triable by subordinate courts if there is good cause for the High Court to do so and if it can find time for such cases.

Section 82 (1) of the Constitution of Kenya provides that no law shall make any provision that is discriminatory either of itself or in its effect.

The provision in this subsection is, however, subject to subsections (4), (5) and (8) of the same section. And subsection (4) provides as follows:

“ (4) Subsection (1) shall not apply to any law so far as that law makes provision-

(b) with respect to adoption, marriage, divorce, burial, devolution of property on death or other matters of personal law”

The provisions of sections 3, 14 and 15 of the African Christian Marriage and Divorce Act, which section 3 of the Matrimonial Causes Act acknowledges as the ruling statute for matrimonial causes between African Christians, are in my respectful view clearly discriminatory of African Christians in that the said provisions do in the first instance shut African Christians out of the High Court and confine them to subordinate courts for their matrimonial causes and allow them access to the High Court only on appeal. It is not apparent why this is so. Such segregation falls squarely within the definition of the expression “discriminatory” given in subsection (3) of section 82 of the Constitution, to wit:

(3) In this section the expression “discriminatory” means affording different treatment to different persons attributable to wholly or mainly to their respective descriptions by race, tribe, place of origin, or residence or other local connection, political opinions, colour, creed or sex whereby persons of one such description are subjected to disabilities or restrictions to which persons of another description are not made subject or are accorded privileges or advantages which are not accorded to persons of another description.”

At first sight the discrimination entailed in sections 3, 14 and 15 of the African Christian Marriage and Divorce Act would appear permissible under subsection 4 (b) of the Constitution quoted above but closer scrutiny persuades me otherwise. There is nowhere in the said subsection where discrimination is permitted. And I can find no similar racially discriminatory provisions in equivalent statutes, like the Hindu Marriage and Divorce Act (cap 157) of the Mohammedan Marriage, Divorce and Succession Act (cap 156). If the African Christians ask that their matrimonial causes be handled by subordinate courts, for whatever reason, it could be said that the discrimination is self-inflicted and they should not be heard to complain. But there is no evidence before me that African

Christians asked to be so treated. It seems to me that the provisions contained in section 3, 14 and 15 of the African Christian Marriage and Divorce Act, as read with section 3 of the Matrimonial Causes Act, are in breach of the Constitutional provisions barring discrimination on racial grounds, are obsolete and out of step with present day Kenya and in need of urgent review. The Attorney-General may wish to take appropriate corrective measures. To that end, I order that a copy of this ruling be served on the Attorney-General for his consideration and action as soon as appropriate.

I am informed that the Registry of the Family Division, High Court, Nairobi has previously been instructed administratively not to admit any fresh matrimonial causes for filing thereat. Since the law has not been changed, I endorse those instructions and order that a copy of this ruling be served on the Deputy Registrar, Family Division, High Court, Nairobi for her to ensure no fresh matrimonial causes are admitted for filing in that Registry.

With regard to the present cause already before the High Court, having been filed way back in 2002, I hereby invoke the inherent and unlimited jurisdiction vested in the High Court under section 60 (1) of the

Constitution and use my discretion to hear the said cause and determine it on merit.

Orders accordingly.

Dated and delivered at Nairobi this 18th day of November, 2004

B. P. KUBO

…………..

JUDGE