https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8539

Gathirimu v Attorney General & 3 others (Petition E106 of 2023) [2026] KEHC 8539 (KLR) (Constitutional and Human Rights) (17 June 2026) (Judgment) Neutral citation: [2026] KEHC 8539 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Constitutional and Human Rights Petition E106 of 2023 RE Aburili, J June 17, 2026 Between Peter Kimari Gathirimu Petitioner and The Honourable Attorney General 1st Respondent The National Assembly 2nd Respondent and Mary Wanjiku Wambui 1st Interested Party The Kenya Conference of Catholic Bishops 2nd Interested Party Judgment 1.The question from the Lord’s oracle against Israel in Amos 3:3, “Do two walk together unless they have agreed to do so?” points out that a measure of agreement is necessary if two parties are to walk together. The Holy Bible gives two clear grounds for divorce: (1) sexual immorality in Mathew 5:32; and 19:9 and (2) abandonment by an unbeliever in 1 Corinthians 7:15. Even in these two instances, though, divorce is not required or even encouraged. The most that can be said is that sexual immorality and abandonment are grounds (an allowance) for divorce. Confession, forgiveness, reconciliation and restoration are always the first steps. Therefore, in Christianity, divorce should only be viewed as a last resort. 2.The fundamental legal question that this Court is asked to answer in the petition is whether a secular state can provide a mechanism for the dissolution of a marriage when one of the spouses holds a deeply rooted religious belief that their marriage is sacramentally indissoluble while the other spouse has filed for divorce. 3.This Court acknowledges that the intersection of law and religion is intrinsically subtle. Statutory civil laws are enacted to promote societal order, protect rights and uphold public interest. On the other hand, religious conscience is rooted in individual autonomy and freedom of belief, which are protected under the constitutional guarantees. The test lies in balancing these opposing interests without deflating the constitutional protections afforded to religious exercise. 4.In examining the relevant constitutional provisions and the jurisprudence that has developed over time, this Court will adopt a nuanced approach, noting that the principles of religious liberty are not absolute. They are subject to limitations necessary to safeguard public order, health and morals. However, such limitations must be narrowly tailored and must not constitute a total restriction on religious exercise. 5.Nonetheless, those laws which impose a burden on religious practice must serve a compelling state interest and be the least restrictive means of achieving that interest. Equally, laws that infringe upon religious conscience must be scrutinized to ensure that they do not unjustifiably impinge upon protected rights and fundamental freedoms. 6.In this case, this Court is called upon determine whether the challenged law or enforcement action strikes an appropriate balance or whether it unjustly encroaches upon religious rights. 7.According to the petitioner, "Marriage is a sacred vow, not a temporary chapter and its strength lies in steadfastness, not dissolution." Background 8.The Petitioner, Peter Kimari Gathirimu is an adult male of sound mind and disposition residing and working for gain as a medical practitioner in Nairobi City County. He is a Catholic, a member of the Catholic Order of Preachers and a subject of the Bishop of the Archdiocese of Nairobi. The 1st Respondent the Honorable Attorney General is the Principal Legal Adviser to the National Government whose role is to represent the National Government in court as stipulated in Article 156 of the Constitution of Kenya, 2010. The 2nd Respondent, the National Assembly is the legislative arm of the national government. 9.The 1st Interested Party Mary Wanjiku Wambui is a female adult of sound mind and disposition who is resident in and works for gain in Nairobi City County. She is also a religious subject of the Bishop of the Archdiocese of Nairobi. The 2nd Interested Party, The Kenya Conference of Catholic Bishops (K.C.C.B.) is the Assembly of the Catholic Bishops in Kenya united and exercising together their pastoral offices over Christ’s faithful. 10.The Petitioner seeks orders from this Court to declare certain provisions of the Marriage Act, 2014 relating to dissolution of marriages unconstitutional. 11.The Petitioner’s case is that on 23rd August 2019, he and the 1st Interested Party Mary Wanjiku Wambui solemnized a Christian marriage in the Catholic Church at the Shrine of Mary Help of Christians, but that on 6th March 2023, his wife, Ms. Wambui filed a Divorce vide Petition No. MCDC/E307/2023 at the Chief Magistrate’s Court at Milimani Law Courts. 12.The petitioner alleges that as faithful adherents of the Catholic faith and leaders in the said church, he believes that marriage is indissoluble and that by being cited as a Respondent in the divorce petition, he is being compelled to engage in divorce proceedings which is an act contrary to his beliefs. He asserts that the determination of the divorce petition filed by his wife, the 1st Interested Party, forced him to violate the tenets of his Roman Catholic faith by dissolving their marriage under Section 65 of the Marriage Act. 13.The Petitioner also states that under Article 45(4) of the Constitution, Parliament has a non-discretionary mandate to enact legislation recognizing systems of religious personal and family law. He avers that while Parliament meticulously accommodated Islamic marriages and their distinct denominational sects such as the Ismaili sect, it treated Christianity as a homogenous block. 14.His further complaint is that by failing to recognize the Catholic Code of Canon Law and the judicial authority of the Metropolitan Tribunals, the Marriage Act discriminates against Catholics, contrary to Article 27 of the Constitution, thereby violating their freedom of religion guaranteed under Article 32. The petitioner further asserts that by choosing a Catholic rite, the parties explicitly waived their future right to seek a civil divorce. 15.Additionally, the petitioner pleads that a fault-based divorce legal regime compromises human dignity and freedoms in what is a personal matter and that individuals should have a right to decide by mutual consent when and for what reason they should dissolve their marriage or at the very least delegate the process to their preferred religious or cultural system. He asserts that parties should be free to enter and leave a marriage contract subject to their consciences and the tenets of their faith of customary laws. The Amended Petition 16.The initial petition is dated 30th March 2023 and later amended on 19th July 2023. The petition seeks the following reliefs:A. A Declaration That:a.The Divorce Petition number MCDC/E307/2023 filed by the 1st Interested Party compels and forces the Petitioner to participate in divorce proceedings against his faith, religion and belief contrary to Article 32(4) of the Constitution of Kenya, 2010.b.The Petitioner has the right to have any marriage dispute concerning him adjudicated by the Metropolitan Tribunal of the Archdiocese of Nairobi according to the norms of the Code of Canon of Law.c.The right to stay married is protected under the Bill of Rights of the Constitution of Kenya 2010.d.The right to divorce is not provided for by the Constitution of Kenya 2010.e.The Code of Canon Law is the system of personal and family law adhered to by persons who profess the Holy Catholic religion and that belong to the Holy Catholic Church.f.The Code of Canon Law as it relates to personal and family law forms part of the corpus of the Laws of Kenya for persons who profess the Holy Catholic religion.g.The Code of Canon Law as it relates to personal and family law is entrenched in the Constitution of Kenya 2010 for persons who profess the Holy Catholic religion.h.The Marriage Act 2014 does not recognize the marriages conducted under Roman Catholic church law and does not recognize the system of personal and family law adhered to by persons professing the Roman Catholic religion and contravenes Article 45(4) of the Constitution of Kenya 2010; and therefore the Marriage Act 2014 is unconstitutional, null and void to the extent of that inconsistency.i.The Marriage Act 2014 recognizes the system of personal and family law adhered to by persons professing the Islamic religion while it does not recognize the system of personal and family law adhered to by persons professing the Roman Catholic religion; and therefore the Marriage Act 2014 does not treat all persons as equal before the law with equal protection and benefit of the law contrary to Article 27(1) of the Constitution of Kenya; therefore the Marriage Act 2014 is unconstitutional, null and void to the extent of that inconsistency.j.The Marriage Act 2014 recognizes the system of personal and family law adhered to by persons professing the Islamic religion while it does not recognize the system of personal and family law adhered to by persons professing the Roman Catholic religion; and therefore the Marriage Act 2014 is discriminatory against Catholics on grounds of religion; therefore, the Marriage Act, 2014 is unconstitutional, null and void to the extent of that inconsistency.k.The Marriage Act 2014 provides for what it refers to as “Christian Marriage” but does not recognize the variance of doctrine, norms and laws between the different Christian denominations, and ignores the fact that the Catholic religion does not accept divorce, unlike other Christian religions. Therefore, the Marriage Act 2014 is discriminatory against Catholics contrary to Article 27(4) of the Constitution of Kenya 2010 and is unconstitutional, null and void to the extent of that inconsistency.l.Persons who profess the Catholic religion are a “marginalized group” as defined in article 260 of the Constitution of Kenya 2010 and have been discriminated against historically and presently in regard to personal and family law as it relates to marriage, its dissolution and the resolution of marriage disputes contrary to Article 27(4) of the Constitution of Kenya 2010 and affirmative action programmes designed to ensure that Catholics develop their practices should be instituted in accordance with Article 56(d) of the Constitution of Kenya 2010.m.Section 65 of the Marriage Act 2014 which provides for the dissolution of a Christian Marriage is contrary to Articles 32 and 45(4)(b) of the Constitution of Kenya 2010 and is therefore unconstitutional, null and void to the extent of that inconsistency.n.Section 73 of the Marriage Act 2014 which provides for annulment of marriages does not provide the grounds for annulment of marriages provided by the Catholic law contrary to Article 45(4) of the Constitution of Kenya 2010 and therefore section 73 of the Marriage Act 2014 is unconstitutional, null and void to the extent of that inconsistency.o.Sections 66(2) and 66(6) of the Marriage Act 2014 which provide for the grounds for dissolution of a Civil Marriage violate the national values of human dignity and human rights; violate the right to have a person’s inherent dignity respected; and violate the right to freedom of conscience, thought and opinion, contrary to Articles 10(2), 28 and 32(1) of the Constitution of Kenya 2010. Section 66(2) and 66(6) of the Marriage Act 2014 are therefore unconstitutional, null and void to the extent of that inconsistency.p.Parties contracting Civil Marriage with free mutual consent may by the same mutual consent terminate their union without having to prove or adduce marital offenses and therefore Section 66(2) and 66(6) of the Marriage Act 2014 are unconstitutional, null and void to the extent of that inconsistency.q.Marital vows are valid contracts and can only be terminated by mutual consent and section 65 of the Marriage Act 2014 provides for violation of those marital vows made by parties contracting marriage by Catholic rite violating the national values of integrity and equity and contravening Article 10 of the Constitution of Kenya 2010, and therefore section 65 of the Marriage Act is unconstitutional, null and void.r.There was no public participation in the enactment of the Marriage Act 2014 and specifically the opinion of the Catholics Church was not entertained contrary to Article 118(1)(b) of the Constitution of Kenya 2010.s.Pursuant to Article 261(6)(a), Parliament has failed to enact the appropriate legislation relating to Family and Marriage in accordance with Article 45 of the Constitution of Kenya 2010 within the time specified in the Fifth Schedule of the Constitution 201(1)B. Ordersa.Case number MCDC/E307/2023a. That Divorce Petition ca dismissed and/or the same should not be heard and no Decree Nissi or Decree Absolute should be issued for it.b.That Permanent Injunctionbe issued against the 1st Interested Party from prosecuting or filing any Divorce, Separation or Annulment Proceeding against the Petitioner in any Court other than the Metropolitan Tribunal of the Holy Catholic Church.c.That A Conservatory Order/stay Of Proceedingsbe issued against Divorce Cause no. MCDC/E307/2023 until Parliament enacts a law recognizing the Code of Canon Law as it relates to personal and family law for persons professing the Holy Catholic religion.d.That The Honorable Attorney General be pleased to make regulation for the application of Catholic law regarding marriage pursuant to section 94(1) of the Marriage Act pending or in lieu of enactment by the National Assembly of appropriate legislation consistent with the Constitution.e.That pursuant to Article 261(6)(b) Parliament and the Attorney General be directed to take steps to ensure that legislation recognizing the Code of Canon Law as it relates to personal and family law is enacted, within a specified period, and to report the progress to the Chief Justice.f.That The Rules Committee created under the Civil Procedures Act and the Honorable Chief Justice be pleased to enact practice notes or procedures to give effect to the Marriage Act 2014 to enable its compliance to the Constitution of Kenya 2010 as regards Catholic law in marriage.g.That the Honorable Attorney General with the assistance of the Kenya Conference of Catholic Bishops be pleased to advise the Government of Kenya to negotiate a Concordat with the Holy See to implement the Code of Canon law as the personal and family for Catholics residing in the Great Republic of Kenya.h.Any other Orders the Court may seem fit. 17.The Petition is premised on the facts on the face of it which are that the Petitioner is challenging the constitutionality of the Marriage Act, 2014, arguing that the Act violates the religious freedoms of Roman Catholics by failing to recognize the indissoluble nature of Catholic sacramental marriage and the jurisdiction of the Catholic Church’s Code of Canon Law. 18.According to the petitioner, because the Catholic Church views marriage as an indissoluble sacrament and rejects civil divorce, forcing the Petitioner into civil divorce proceedings which were initiated by the 1st Interested Party under Section 65 of the Marriage Act compels the petitioner to participate in an act antithetical to his religious beliefs. 19.The petitioner asserts that under Article 45(4) of the Constitution, Parliament has a non-discretionary mandate to enact legislation recognizing religious family laws and accordingly, its failure to recognize Catholic Canon Law and the Metropolitan Tribunal is a distinct constitutional violation. 20.The Petitioner seeks to have Sections 65, Sections 66(2), 66(6) and 73 of the Marriage Act, 2014 declared unconstitutional, null and void for permitting divorce and for failing to incorporate Catholic Canon Law grounds for annulment and demands that Catholic marital disputes be adjudicated exclusively by the Church’s Metropolitan Tribunal. He further alleges that there was no public participation conducted in the enactment of the Marriage Act thereby violating Article 118 of the Constitution. Response to the Petition 21.In response to the Petition, the 2nd Respondent, the national Assembly filed a Replying Affidavit dated 27th October 2023, sworn by Samuel Njoroge, the Clerk of the National Assembly, urging this Court to dismiss the Petition based on several facets of the documents annexed to the Petition by the Petitioner. 22.It is deposed that the impugned legislation was first initiated as the Marriage Bill/the Marriage (Amendment) Bill No. 13 of 2013 and on 16th July, 2013. That the Bill went through its First Reading and followed all constitutional procedures, including subsequent readings, public participation which invited submissions and memoranda via newspaper advertisements and proper presidential assent. 23.That the impugned law was passed in accordance with the Constitution and the National Assembly Standing Orders hence the National Assembly did not infringe any Article of the Constitution. That the law in question carries a strong presumption of constitutionality and should not be struck down just because it does not suit the Petitioner’s personal interests. 24.It is deposed that the Purpose of the Act is to unify the law and that before 2014, Kenya had a messy, fragmented system of marriage laws divided by religion. That the Act was designed to create a single, uniform legal framework, based on the 1967 Commission report by the Commission on the Law of Marriage and Divorce, which concluded that marriage and divorce are matters of state interest and that the state cannot abdicate this responsibility to religious institutions. That during the Committees’ deliberations, they considered the views of the Christian Churches and noted that they also recognize the state's right to regulate civil marriage. 25.It is averred that the Commission also recommended that no party should be allowed to divorce except by a decree of a court of competent jurisdiction and further that the Marriage Act does not force people to divorce but simply provides a legal option for dissolution when a marriage has irretrievably broken down under Sections 65 and 66. Further, that the Act respects religion by requiring parties in Christian marriages to attempt mediation through their religious institutions under Section 64 of the Act, before filing for a legal divorce. 26.It is contended that freedom of religion is not absolute, in that, whereas Article 32 protects religious freedom, it can be limited under Article 24 (1) (d) of the Constitution to protect the rights and freedoms of others. That if every religion were allowed a free hand to dictate marital rules without a common legal baseline, it would result in societal disharmony. It is further deposed that the rationale for divorce in the law is to ensure conformity with International Human Rights regimes. 27.It is the 2nd respondent’s averment that the right to marry is not the right to stay married. That the Constitution under Article 45 (3) explicitly anticipates that marriages can be dissolved and guarantees equal rights upon dissolution. Furthermore, that international human rights standards dictate that human dignity includes the right to exit an irretrievably broken marriage. This Court is urged to dismiss the petition because the Petitioner has failed to prove the impugned law is unconstitutional. 28.The parties canvassed the Petition by way of written submissions which were also highlighted orally in court. The Petitioner’s Submissions 29.The Petitioner’s Submissions are dated 21st November 2023 as highlighted on 22nd April, 2026. He submits on the following issues: -1.Does this Court have the jurisdiction to entertain this matter, or is this matter justiciable before this Court?2.Does the Catholic Church have established laws that govern marriage, separation and the annulment of marriages?3.In enacting the Marriage Act 2014, did the National Assembly (“the NA”):a.Recognize marriages concluded under the system of religious, personal and family law of the Catholic Church? andb.Recognize the system of personal and family law adhered to by persons professing the Catholic religion?4.Are the marriages or system of laws of the Catholic Church that govern marriage inconsistent with the Constitution of Kenya 2010?5.By providing for the system of personal and family law adhered to by Muslims and not providing for the system of personal and family law adhered to by Catholics, does the Marriage Act 2014 fail to treat Muslims and Catholics equally, and is the Marriage Act 2014 discriminatory against Catholics?6.How should the Court address the legislative omission of the National Assembly?7.Would a divorce decree violate the Petitioner’s freedom from being compelled to act or engage in an act that is contrary to his belief or religion and also a violation of Article 10 on National Values; and would a divorce decree violate the Petitioner’s right to marry?8.Would an injunction against divorce be a violation of any rights of the 1st Interested Party as provided for by the Bill of Rights? 30.On the first issue, the Petitioner counters the 2nd Respondent, the National Assembly’s argument that the Marriage Act is protected by a presumption of constitutionality by arguing that that this presumption is rebuttable as determined by the Court of Appeal National Assembly of Kenya v Kina & another (Civil Appeal 166 of 2019) [2022] KECA 548 (KLR) and the High Court in S B M & another v Attorney General (Constitutional Petition No 21 of 2021) [2022] KEHC 13920 (KLR) where it is said to have been held that any legislation or decisions made by Parliament outside constitutional boundaries attract the court’s jurisdiction. 31.On the second issue, it is submitted that the Marriage Act entails a legislative omission and discrimination against Catholics yet Article 45 (4) of the Constitution mandates Parliament to pass laws recognizing marriages and family law systems adhered to under any religion or tradition, but that in this case, Parliament has not done so. Further submission is that instead, Parliament did not accept contributions from the Catholic Church during the public participation stage of the Bill preparation while it took contributions from the National Council of Churches of Kenya, the Anglican Church and the Methodist Church as demonstrated in the proceedings of the Committee dated 26th March 2014 (exhibit ‘SN-5’ at page 114, para 1) annexed. 32.The petitioner submits that the Court of Appeal in The National Assembly of Kenya v Kina & Ano (supra) took judicial notice of the variance of the Catholic law relating to marriage with that of other Christian churches and the law of the land. 33.On the third issue, it is submitted that the Marriage Act generalizes Christian Marriages without recognizing the distinct laws of the Catholic Church while it accommodates Islamic personal law and even nuances within specific Muslim sects such as the Ismaili sect. That in this regard, the 2nd Respondent ought to have accommodated the Catholic personal and family laws in the Act because it is distinctive from other Christian denominations. 34.The petitioner urges this Court to consider whether the Marriage Act adhered to constitutional fidelity as espoused by Mativo J. in Centre for Rights Education and Awareness & 2 others v Speaker the National Assembly & 6 others [2017] eKLR. 35.The petitioner further submits on the rights to religion and conscience versus divorce and asserts that under Catholic doctrine and the Code of Canon Law, a sacramental marriage is indissoluble and divorce is not recognized. He further submits that Article 45 (3) would appear contrary to Article 20 (3) (a) but that with the provisions of Article 259, the Court must find that if indeed the drafters of the Constitution intended to guarantee the right to divorce under the Bill of Rights, they would have expressly done so. The case of S B M & another v Attorney General (supra), Babiarz v Poland (Application No. 1955/10) at the European Court of Human Rights and Cass R Sunstein, Legal Reasoning and Political Conflict (New York: Oxford University Press, 1996) were cited in support of that proposition. 36.The Petitioner additionally submits that the Marriage Act 2014, did not treat the Catholic religion and the Islamic religion equally while implementing Article 45(4). That Parliament cannot provide any rational basis for this unequal treatment or differentiation, since both Catholic and Islamic religions have distinct and ancient laws that relate to marriage with the Catholic ones being more elaborate and developed. That accordingly, Parliament was aware that the provisions in Sections 65 and 73 of the Marriage Act 2014 did not satisfy the requirements of Article 45(4) of the Constitution as regards Catholic family law. 37.It is submitted that the apparent limitation by the Marriage Act 2014 of the rights of Catholics as provided by Article 45(4) is not specific in its intention to limit the rights of Catholics, that the limitation is invalid pursuant to Article 24(2)(a) and that the said limitation is not legitimate, thereby rendering the statute unconstitutional. 38.The Petitioner also cited the case of Wambui & 10 others v Speaker of the National Assembly & 6 others (Consolidated)) [2022] KEHC 10275 (KLR) on the need for holistic and purposive interpretation of the Constitution and a presentation from the Constitutional Court of Spain in XIV Conference of Constitutional Courts of Europe: The Problem of Legislative Omission in Constitutional Jurisprudence - Vilnius, May 2008 in proposing the annulment of the said sections of the Marriage Act. 39.The petitioner further proposes that Catholic marriages that have already been dissolved pursuant to Section 65 of the Marriage Act should be allowed to retain their nullified status in a bid to divorce unconstitutionality from nullity. 40.The Petitioner contends that being forced to participate in civil divorce proceedings violates his freedom of religion and conscience under Article 32 of the Constitution. He argues that issuing a divorce decree forces a violation of lifelong sacred vows, which undermines national values of human dignity, transparency, accountability and integrity under Article 10 of the Constitution. 41.It is also submitted further that because the Catholic Church bars divorced individuals from remarrying, a civil divorce would permanently strip the Petitioner of his right to marry in the future under his faith. 42.The Petitioner submits that neither the Kenyan Constitution nor comparative international jurisprudence guarantees a right to divorce. He posits that by choosing a Catholic marriage rite, both parties explicitly waived any right to seek a divorce. That further, the Petition should be allowed because Parliament’s omission in Sections 65 and 73 of the Marriage Act is invalid pursuant to Article 2(4) of the Constitution and the said Catholic law on marriage is the law of the land for marriages celebrated under Catholic rites. 43.The Petitioner proposes that, to resolve the legislative gap without creating a constitutional absurdity or requiring the wholesale dissolution of the Marriage Act, the Court declares Sections 65 and 73 unconstitutional specifically for marriages celebrated under Catholic rites; decouples unconstitutionality from nullity, meaning, previous Catholic marriages already dissolved under these sections would retain their status; declare that disputes regarding Catholic marriages must be governed by Catholic family law under the Code of Canon Law; and issue an order of mandamus compelling the Attorney General to draft regulations to operationalize Catholic family law under the Marriage Act. The 2nd Respondent’s Submissions 44.The 2nd Respondent’s (The National Assembly) filed written submissions dated 29th January 2025. Counsel highlights three issues for determination being:i.Whether adequate public participation was conducted in the enactment of the Marriage Act;ii.Whether the provisions of sections 65, 66(2), 66(6) and 73 of the Marriage Act, 2014 are unconstitutional andiii.Whether the impugned provisions compel persons to undergo a divorce. upholding the rights and interests of individuals under civil law. The South African Constitutional Court case of Christian Education South Africa v Minister for Education (CCT 4/00) 2000 at paragraph 33, is cited in support of this proposition and a further submission that Article 45(4) allows for religious family laws only to the extent that they remain fully consistent with the wider protections of the Constitution. 51.The 2nd Respondent submits that the Petitioner was required to demonstrate a clear violation of constitutional provisions of infringement of his rights before seeking the Court’s intervention as was stated in the Mumo Matemu v. Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR. 52.On the third issue, Counsel for the 2nd respondent submits that the wording of Section 65 of the marriage Act is permissive in nature as it states that an individual may petition for a divorce, which denotes a permissive, discretionary choice, not a mandatory requirement. The Court of Appeal decision of Sony Holdings Ltd vs. Registrar of Trade Marks & Another [2015] eKLR is cited in support of this argument. 53.It is submitted that the Marriage Act does not force anyone to get a divorce against their faith but merely provides a civil option for those who choose to exercise it. Further, that Section 64 of the Marriage Act actively provides alternative avenues, such as church-based mediation to resolve disputes before heading to court. The 2nd respondent urges this Court to exercise judicial restraint because it is not a super-legislature meant to rule on the wisdom or desirability of a policy. 54.Lastly, the 2nd respondent urges this Court to dismiss the petition, advising the petitioner that if he wants Catholic Canon Law integrated into civil legislation, his proper recourse is to use Article 119 of the Constitution to formally petition Parliament to amend the statute, rather than asking the judiciary to overstep its mandate and legislate matters of belief. Analysis and Determination 55.I have carefully considered the petition and the opposition thereto together with the submissions, both written and oral highlights. The main issue for my determination is whether the Petition is merited. I further isolate following sub-issues for my determination: -i.Whether the Marriage Act, 2014 is unconstitutional for want of adequate public participation under Article 118 of the Constitution.ii.Whether Sections 65, 66 (2), 66 (6), and 73 of the Marriage Act, 2014 violate the Petitioner’s freedom of religion, conscience and dignity guaranteed under Article 32 by permitting civil divorce.iii.Whether the Marriage Act, 2014 is unconstitutional and discriminatory under Article 27 by recognizing Islamic personal law frameworks while omitting Catholic Canon Law.iv.Whether the reliefs sought can be granted and who bears the costs, if any. i. Whether the Marriage Act, 2014 is unconstitutional for want of adequate public participation under Article 118 of the Constitution. 56.The Petitioner alleges that during the enactment of the Marriage Act, 2014, the impugned legislation, the Catholic Church opinion was radically ignored. He asserts that Article 45 (4) of the Constitution mandates Parliament to pass laws recognizing marriages and family law systems which are adhered to under any religion or tradition and that this was not done. He avers that Parliament failed to accept views given by the Catholic Church during the public participation exercise and stage of Bill preparation while it took contributions from the National Council of Churches of Kenya, the Anglican Church and the Methodist Church. He also asserts that this failure was discriminatory since the said Parliament appreciated that the Islamic religion had different sects and were governed by unique laws and hence made provisions for the same. 57.The National Assembly the 2nd Respondent herein strongly defends the constitutionality of the Marriage Act, 2014 and asserts that the Act was subjected to comprehensive and inclusive public participation through open print media invitations on 8th August, 2013, meeting the thresholds of Article 118. 58.Article 118 of the Constitution provides as follows:118.Public access and participation1.Parliament shall—a.conduct its business in an open manner, and its sittings and those of its committees shall be in public; andb.facilitate public participation and involvement in the legislative and other business of Parliament and its committees.2.Parliament may not exclude the public, or any media, from any sitting unless in exceptional circumstances the relevant Speaker has determined that there are justifiable reasons for the exclusion. 59.Public participation is one of the national value and principle of governance espouse din Article 10 (2) (a) of the Constitution, and the Constitution mandates that the said values and principles bind all state organs, state officers, public officers and all persons whenever any of them applies reinterprets the Constitution, enacts, applies or interprets any law or makes or implements public policy decisions. 60.That said, it is trite that the burden of proving a lack of public participation sits squarely on the party alleging it. The 2nd Respondent has adduced uncontroverted evidence that a public notice was placed in the print media on 8th August, 2013 inviting memoranda from all members of the public and institutional stakeholders as demonstrated in the proceedings of the Committee dated 26th March 2014 in annexure marked ‘SN-5’ at page 114, para 1. 61.The case of Doctors for Life International vs. Speaker of the National Assembly and Others (CCT12/05) [2006] ZACC 11; 2006 (12) BCLR 1399 (CC); 2006(6) SA 416 (CC) (17 August 2006) sets out the following principles on public participation:“Whether a legislature has acted reasonably in discharging its duty to facilitate public involvement will depend on a number of factors. The nature and importance of the legislation and the intensity of its impact on the public are especially relevant. Reasonableness also requires that appropriate account be paid to practicalities such as time and expense, which relate to the efficiency of the law-making process. Yet the saving of money and time in itself does not justify inadequate opportunities for public involvement. In addition, in evaluating the reasonableness of Parliament’s conduct, this Court will have regard to what Parliament itself considered to be appropriate public involvement in the light of the legislation’s content, importance and urgency. Indeed, this Court will pay particular attention to what Parliament considers to be appropriate public involvement. What is ultimately important is that the legislature has taken steps to afford the public a reasonable opportunity to participate effectively in the law-making process. Thus construed, there are at least two aspects of the duty to facilitate public involvement. The first is the duty to provide meaningful opportunities for public participation in the law-making process. The second is the duty to take measures to ensure that people have the ability to take advantage of the opportunities provided. In this sense, public involvement may be seen as “a continuum that ranges from providing information and building awareness, to partnering in decision-making...There may well be circumstances of emergency that require urgent legislative responses and short timetables...When it comes to establishing legislative timetables, the temptation to cut down on public involvement must be resisted. Problems encountered in speeding up a sluggish timetable do not ordinarily constitute a basis for inferring that inroads into the appropriate degree of public involvement are reasonable. The timetable must be subordinated to the rights guaranteed in the Constitution, and not the rights to the timetable.” 62.Similar holdings can be found in the case of Law Society of Kenya v Attorney General & another; Centre for Enhancing Democracy and Good Governance & 5 others (Interested Parties); International Commission of Jurists & 2 others (Amicus Curiae) (Constitutional Petition 3 of 2016) [2016] KEHC 5101 (KLR) (Constitutional and Human Rights) (26 May 2016) (Judgment)] 63.From the above decisions, it is clear that the law does not require that the legislature must orally hear every single citizen or accommodate every specific preference by various factions as proposed by the Petitioner herein. It merely requires that a reasonable and fair opportunity be provided to the public. The Catholic Church and its devotees had an open platform to submit their views. 64.This Court’s finding is that a failure by a specific denomination to successfully steer the final statutory language to its theological liking does not equate to a failure of public participation by Parliament. 65.Accordingly, I find and hold that the enactment of the Marriage Act, 2014 complied fully with the public participation requirements of Article 118 of the Constitution and therefore the Marriage Act carries with it the presumption of constitutionality. I dismiss the Petitioner’s allegations that the enactment of the Marriage Act, 2014 was devoid of public participation. ii. Whether Sections 65, 66(2), 66(6), and 73 of the Marriage Act, 2014 violate the Petitioner’s freedom of religion, conscience and dignity under Article 32 of the Constitution by permitting civil divorce. 66.The Petitioner claims that when enacting the Marriage Act, 2014, Parliament recognised and accommodated Islamic personal law by allowing dissolution of marriages strictly via Islamic law but then failed to consider the unique nature of the Roman Catholic faith as separate from the entire Christian faith. He asserts that while other Anglo-Protestant Christians permit divorce, Catholics who comprise 30% of the population do not. Therefore, in his view, it was wrong to take Christians as a single homogeneous group because this results in marginalizing the Catholic faithful by subjecting them to the provisions of Sections 65, 66(2) and 73 of the Act, thereby violating their rights. 67.The 2nd Respondent on its part argues that marriage and the family structure are matters of vital state and public interest, meaning, the secular state cannot abdicate its regulatory authority to individual religious denominations. It points out that Section 65 of the Marriage Act is strictly permissive, utilizing the word may. That the Act does not compel any person to seek a divorce. Rather, that it provides a crucial legal exit route and civil remedy for couples who are trapped in unsustainable unions. 68.The 2nd Respondent further submits that while Article 32 of the Constitution guarantees religious freedom, that right is not absolute and must be limited under Article 24 to ensure that the right does not prejudice the fundamental rights, individual autonomy and well-being of others, such as a spouse who wishes to exit an irretrievably broken marriage as was in the case of the 1st Interested Party herein who chose to end her marriage with the petitioner because of what she considered to be irreconcilable differences. 69.Finally, the National Assembly maintains that if the Petitioner desires legislative changes, the proper forum is to petition Parliament under Article 119 of the Constitution, instead of inviting the Judiciary to act as a super-legislature. It contends that the petitioner has failed to prove any constitutional violations. 70.I have considered the impugned provisions of the Marriage Act as submitted on. The sections stipulate as follows:65.Grounds for dissolution of a Christian marriageA party to a marriage celebrated under Part III may petition the court for a decree for the dissolution of the marriage on the ground of—a.one or more acts of adultery committed by the other party;b.cruelty, whether mental or physical, inflicted by the other party on the petitioner or on the children, if any, of the marriage;c.desertion by either party for at least three years immediately preceding the date of presentation of the petition;d.exceptional depravity by either party; ore.the irretrievable breakdown of the marriage.Dissolution of a civil marriage66. Right to petition for separation or divorce1.A party to a marriage celebrated under Part IV may not petition the court for the separation of the parties or for the dissolution of the marriage unless three years have elapsed since the celebration of the marriage2.A party to a marriage celebrated under Part IV may only petition the court for the separation of the parties or the dissolution of the marriage on the following grounds—a.adultery by the other spouse;b.cruelty by the other spouse;c.exceptional depravity by the other spouse;d.desertion by the other spouse for at least three years; ore.the irretrievable breakdown of the marriage.(3)…(4)…(5)…(6)A marriage has irretrievably broken down if—(a)a spouse commits adultery;(b)a spouse is cruel to the other spouse or to any child of the marriage;(c)a spouse willfully neglects the other spouse for at least two years immediately preceding the date of presentation of the petition;(d)the spouses have been separated for at least two years, whether voluntary or by decree of the court;(e)a spouse has deserted the other spouse or at least three years immediately preceding the date of presentation of the petition;(f)a spouse has been sentenced to a term of imprisonment for life or for a term of seven years or more;(g)a spouse suffers from incurable insanity, where two doctors, at least one of whom is qualified or experienced in psychiatry, have certified that the insanity is incurable or that recovery is improbable during the life time of the respondent in the light of existing medical knowledge; or(h)any other ground as the court may deem appropriate.Annulment of Marriage73. Grounds for annulment of marriage1.A party to a marriage may petition the court to annul the marriage on the ground that—a.the marriage has not been consummated since its celebration;b.at the time of the marriage and without the knowledge of either party, the parties were in a prohibited relationship;c.in the case of a monogamous marriage, at the time of the marriage one of the parties was married to another person;d.the petitioner’s consent was not freely given;e.a party to the marriage was absent at the time of the celebration of the marriage;f.at the time of the marriage and without the knowledge of the husband, the wife is pregnant and that the husband is not responsible for the pregnancy; org.at the time of the marriage and without the knowledge of the petitioner, the other party suffers recurrent bouts of insanity.2.The court shall only grant a decree of annulment if—a.the petition is made within one year of the celebration of the marriage;b.at the date of the marriage and regarding subsections (1)(b) and (c), the petitioner was ignorant of the facts alleged in the petition; andc.the marriage has not been consummated since the petition was made to the court. 71.Article 45 of the Constitution guarantees every person the right to marry freely and voluntarily. The Marriage Act, 2014, provides for the regulation of marriage and divorce, which laws are within the legislative competence of Parliament. A careful reading of the petition clearly shows that the petitioner seeks to declare divorce laws unconstitutional solely on moral grounds. 72.The petitioner, from the pleadings, invoked Article 45 of the Constitution to challenge the Marriage Act in order to oppose or frustrate divorce proceedings which were pending between him and his now ex-spouse, the 1st interested party and on personal or moral grounds. To succeed, the petitioner must demonstrate that the law or its application violates specific constitutional rights. 73.It is important to note that the Marriage Act and Article 45 of the Constitution do not guarantee a right to prevent divorce; rather, they protect the freedom to marry and family life. Article 45(3) recognizes equal rights of persons at the time, during marriage and at the dissolution of the marriage. As stated above, Laws are within the legislative realm and are presumed constitutional unless proven otherwise. 74.The standard of review for statutes is a two-tier approach. Firstly, the Court must apply the principle of constitutional interpretation, which requires that the statute be interpreted in a manner that promotes the values and principles of the Constitution. Secondly, if there is a clear inconsistency between the statute and the Constitution, the Court must strike down the statutory provision to the extent of that inconsistency. 75.In this case, the petitioner’s opposition to divorce, based solely on moral or personal beliefs does not constitute a constitutional violation. 76.The Petitioner’s contention that the Marriage Act offends the Constitution by permitting dissolution of Christian marriages is wholly misconceived. From my reading of the above provisions of the Act, I find that it does not compel dissolution of marriages contrary to faith. Rather, it provides a neutral statutory framework that respects individual autonomy and the diverse religious convictions within Kenya. Moreover, there is no religion called Catholic. Catholic is a denomination of the Christian Faith. 77.The impugned sections all use the term “may”, which connotes that parties in a marital relationship are not compelled to procure a divorce or separation. 78.Article 32 of the Constitution guarantees freedom of religion as follows:32.Freedom of conscience, religion, belief and opinion1.Every person has the right to freedom of conscience, religion, thought, belief and opinion.2.Every person has the right, either individually or in community with others, in public or in private, to manifest any religion or belief through worship, practice, teaching or observance, including observance of a day of worship.3.A person may not be denied access to any institution, employment or facility, or the enjoyment of any right, because of the person’s belief or religion.4.A person shall not be compelled to act, or engage in any act, that is contrary to the person’s belief or religion. 79.Article 45 further provides: -45.Family1.The family is the natural and fundamental unit of society and the necessary basis of social order, and shall enjoy the recognition and protection of the State.2.Every adult has the right to marry a person of the opposite sex, based on the free consent of the parties.3.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.4.Parliament shall enact legislation that recognises—a.marriages concluded under any tradition, or system of religious, personal or family law; andb.any system of personal and family law under any tradition, or adhered to by persons professing a particular religion,to the extent that any such marriages or systems of law are consistent with this Constitution. 80.Article 32 postulates that freedom of religion is not absolute. The Article guarantees the right to practise religion, but it does not entrench religious doctrine into civil law. In other words, the Article does not allow religious doctrine to override civil law nor prohibit the State from enacting uniform family legislation. 81.The Marriage Act provides a civil framework for marriage and dissolution so that individuals who wish to follow their faith strictly can choose not to petition for divorce. I reiterate that the law does not compel Christians to dissolve marriages but merely provides the option, respecting pluralism. 82.Equally, Article 45 of the Constitution recognizes marriage as a social institution founded on free consent. This Court’s view is that the Marriage Act merely operationalizes this Article 45 by providing parties with the option of dissolution. Article 45 does not constitutionalize indissolubility of marriage as an institution. 83.The Constitution envisages marriage as an institution regulated by law and the Marriage Act comes in to ensure that family law is consistent with constitutional values of equality, dignity and protection of vulnerable parties. 84.The wording of the law is therefore that the parties are never obligated to dissolve or to get a divorce. To hold otherwise would be to elevate sectarian or individual denominational doctrine above constitutional supremacy under Article 2 of the Constitution. 85.Thus, the Petitioner’s argument collapses on the fact that the Act preserves freedom of choice in that, those whose faith prohibits divorce remain free to abide by their doctrine, while others may lawfully seek dissolution. It would also be an outright violation of rights to hold that the very provisions that grant a party the option of exiting a marriage covenant are now unconstitutional, thereby forcing the said party to remain in a broken marriage against their will. 86.Far from discriminating, the Marriage Act treats all citizens equally by providing a uniform legal mechanism for dissolution regardless of faith. It is also important to point out that, to exempt Christians who are Catholic faithful from divorce would itself be discriminatory and undermine Article 27 on equality and non-discrimination because this would be denying them access to civil remedies available to the adherents of other faiths. 87.Equality requires that all citizens have the same legal rights, even if some choose not to exercise them. It is not lost to this court that the petitioner has not brought this petition on behalf of Christians who are Catholic devotees but in his own right and benefit during the pendence of his divorce from the 1st interested party, which he conceded at the hearing that the same had since been dissolved and a decree nisi issued hence the much-resisted divorce has since taken effect. 88.the petitioner’s intention was to prevent his wife from divorcing him, because his Catholic faith disallows divorce. The effect of allowing the petition prior to the judgment in the divorce case was to force the petitioner’s now ex-wife to terminate the divorce proceedings. It is for that reason that the petitioner sought for orders to stay the divorce proceedings pending the hearing and determination of this petition. 89.The Petitioner contends that being forced to undergo the divorce proceedings in the Magistrate’s court subjected him to humiliation and forced him to submit to a process that does not preserve his faith, in violation of his right to dignity. However, while balancing all competing rights, human dignity includes autonomy and the ability to exit harmful or abusive relationships or relationships that are no longer tenable. If that were not to be the case, the Bible, which is the Holy Book for Christians would not have the scriptures such as Amos 3:3, which reads: “Do two walk together unless they have agreed to do so?” which points out that a measure of agreement is necessary if two parties are to walk together. This scripture verse, while originally written about God’s covenant with Israel, the principle of shared direction, mutual commitment and unity makes it one of the most foundational guidelines for Christian marriages. 90.Applying Amos 3:3 to marital life involves several key impressions: first, is the shared destination and vision. A couple must agree on their life goals, core values and spiritual direction. Secondly, is that walking together is not just about the day that the couple exchange their vows in Church but is a conscious, continuous choice to compromise, work through differences and row the boat in the same direction. Thirdly, is that this verse is equally linked to 2 Corinthians 6:14 which warns Christians not to be unequally Yoked with non-believers, emphasizing that a shared faith makes it much easier to walk the path of marriage in unison. 91.Additionally, although the Bible, being a Holy Book does not outrightly advocate for divorce, from the reading of several scriptures, they all acknowledge that divorce is possible. 92.Mark 10:9 and Mathew 19: 6 reads that “therefore, what God has joined together, let no one separate or put asunder.” Yet, the same Holy Bible gives two clear grounds for divorce: (1) sexual immorality in Mathew 5:32; and 19:9 and (2) abandonment by an unbeliever in 1 Corinthians 7:15. These scriptures stipulate as follows:“Mathew 5: 32- But I say to you that everyone who divorces his wife except on the ground of sexual immorality, makes he commit adultery, and whoever marries a divorced woman commits adultery.”1 Corinthians 7:15 But if the unbelieving partner separates, let it be so. In such cases, the brother or sister is not enslaved. God has called you to peace.” 93.The Bible does acknowledge that two people walking together are capable of disagreeing and if that happens, parting ways is an option. No one disputes that marriage is sacred and that is what the Holy Scriptures teach. Additionally, although the Holy Bible does not encourage divorce, nonetheless, because marriage is a voluntary union, any party to it may withdraw and the Bible provides for two main reasons, sexual immorality or adultery and abandonment or desertion as reproduced above, which are also two main grounds upon which divorce may be sought and obtained from court, as stipulated in the impugned Act and section 65 of the Marriage Act. 94.Therefore, to expunge the impugned provisions of the Marriage Act on the basis of un-constitutionalism and deny Catholic Christians the legal right to dissolve a marriage that is not functional, would be as already stated above, to undermine the dignity of spouses by trapping them in situations contrary to their personal welfare. Put differently, it is like forcing a non-consenting spouse to remain legally chained to a dead marriage purely to satisfy the religious conscience of their partner, a situation which the law cannot countenance. The Marriage Act in my view enhances dignity by balancing respect for religious belief with protection of individual rights. 95.Although the petitioner claims that Article 45 (3) would appear contrary to Article 20 (3) (a), under Article 2 of the Constitution, no validity or legality of the Constitution can be subject to challenge before any court or state organ. 96.The Petitioner’s primary theological argument is that because the Catholic Church deems a consummated sacramental marriage indissoluble, a civil court granting a divorce violates his conscience and Article 32 of the Constitution. 97.While freedom of religion is protected under the Constitution, it cannot be used to invalidate laws that serve legitimate public purposes. I reiterate that the Marriage Act 2014 permits but does not compel or mandate divorce. Therefore, what emerges from the Act is that a spouse’s individual right to seek an exit from a broken marriage overrides their partner’s theological preference to keep the marriage legally intact against their will. 98.Additionally, there is a distinction between the theological sphere of religion and the secular sphere of civil law. The Constitutional Court of South Africa aptly observed in Christian Education South Africa v Minister of Education (CCT4/00) [2000] ZACC 11; 2000 (4) SA 757 (CC); 2000 (10) BCLR 1051 (CC) (18 August 2000) at paragraph 33 as follows: -“(33)Before setting out to apply the above approach to the facts of this case, I feel it necessary to comment generally on difficulties of proportionality analysis in the area of religious rights. The most complex problem is that the competing interests to be balanced belong to completely different conceptual and existential orders. Meyerson notes that religious matters are not truths that can be publically demonstrated. She notes that they are “neither confirmable nor disconfirmable by public evidence” (at 17) and that:“[t]he use of common standards of reason cannot help reasonable people to converge on the truth in the area of religion.”(at 18) The State must thus justify limitations on specific constitutional rights by providing “a justification for its measure to which all reasonable people would, if asked, accord some degree of force.”(at 12) “[T]he state is obliged . . . to justify limitations on constitutional rights from a point of view from which all citizens can reason”, not with reference to justifications “whose normative force depends on an intractably disputed point of view” (at 17). See Meyerson Rights Limited: Freedom of Expression, Religion and the South African Constitution (Juta & Co, Cape Town 1997).Religious conviction and practice are generally based on faith. Countervailing public or private concerns are usually not and are evaluated mainly according to their reasonableness. In Prince v Massachusetts [1944] USSC 52; 321 US 158 (1944) at 165, Rutledge J noted that:“Heart and mind are not identical. Intuitive faith and reasoned judgment are not the same. Spirit is not always thought. But in the everyday business of living, secular or otherwise, these variant aspects of personality find inseparable expression in a thousand ways. They cannot be altogether parted in law more than in life.”To the extent that the two orders can be separated, with the religious being sovereign in its domain and the state sovereign in its domain, the need to balance one interest against the other is avoided. However religion is not always merely a matter of private individual conscience or communal sectarian practice. Certain religious sects do turn their back on the world, but many major religions regard it as part of their spiritual vocation to be active in the broader society. Carmella notes that Glendon observes that:“Some communities are ‘sectarian’ in their understanding. Such ‘sects’ stand apart from civil society, call people out of society to join them in an intensely private life, and focus their efforts on the small group of adherents. Others, indeed the vast majority, consider themselves ‘church’ as opposed to ‘sect’. ‘Churches’ deem their role a public one: they are deeply engaged in service to and discourse with the civil society, and cooperate with and learn from the society’s institutions. For instance, they educate children, provide social and medical services, operate institutions for a wide variety of purposes, and advocate positions on topics of moral and political importance. Engagement in the culture by ‘churches’ renders religion a public phenomenon, socially relevant beyond the small communities of adherents . . . . [S]uch public religion contributes to the larger civil society and polity by encouraging virtue in the citizenry and developing habits and attitudes that nurture self-government.” (See Carmella “Mary Ann Glendon on Religious Liberty: The Social Nature of the Person and the Public Nature of Religion” (1998) 73:5 Notre Dame Law Review 1191 at 1195.Not only do they proselytise through the media and in the public square, religious bodies play a large part in public life, through schools, hospitals and poverty relief. They command ethical behaviour from their members and bear witness to the exercise of power by state and private agencies; they promote music, art and theatre; they provide halls for community activities, and conduct a great variety of social activities for their members and the general public. They are part of the fabric of public life, and constitute active elements of the diverse and pluralistic nation contemplated by the Constitution. [38] Religion is not just a question of belief or doctrine. It is part of a way of life, of a people’s temper and culture. 99.In line with above holding though persuasive, the Marriage Act, 2014 regulates a civil contract marriage recognized by the State. It does not govern the state of the Petitioner’s spirituality or religious beliefs, nor does it issue commands to the Catholic hierarchy. It merely provides an option that if a marriage breaks down, the state has a compelling interest in ensuring an orderly, fair and judicial exit mechanism for unions that have irretrievably broken down. Taking the Petitioner’s position would mean that this Court is allowing his freedom of religion to enslave the 1st Interested Party’s individual autonomy. 100.As stated by the 2nd Respondent, a petitioner must show clear, specific, material harm to constitutional rights, rather than theoretical or theological dissatisfaction. Marriage has a dual identity. While it may hold profound spiritual weight for believers, it remains a civil contract registered, managed and given legal force by the laws of the land. It is for that reason that a marriage is defined under section 3 of the Act as:3.Meaning of marriage(1)Marriage is the voluntary union of a man and a woman whether in a monogamous or polygamous union and registered in accordance with this Act.(2)Parties to a marriage have equal rights and obligations at the time of the marriage, during the marriage and at the dissolution of the marriage.(3)All marriages registered under this Act have the same legal status.(4)Subject to subsection (2), the parties to an Islamic marriage shall only have the rights granted under Islamic law. 101.On the kinds of marriages, section 6 of the Act provides as follows:6.Kinds of marriages(1)A marriage may be registered under this Act if it is celebrated—(a)in accordance with the rites of a Christian denomination;(b)as a civil marriage;(c)in accordance with the customary rites relating to any of the communities in Kenya;(d)in accordance with the Hindu rites and ceremonies; and(e)in accordance with Islamic law.(2)A Christian, Hindu or civil marriage is monogamous.(3)A marriage celebrated under customary law or Islamic law is presumed to be polygamous or potentially polygamous. 102.The Petitioner has not attacked the definition of marriage which is a voluntary union. To hold that the Act is unconstitutional because it allows divorce would mean that the court redefines what a marriage is for Catholic Christians. The state cannot abdicate its sovereign duty to govern social institutions to individual religious denominations. Denying a citizen, the right to dissolve a failed marriage under civil law on account of their spouse’s religious convictions would lock individuals into unsustainable and potentially harmful unions, subverting the core constitutional values of individual autonomy, safety and human dignity. 103.Accordingly, I find that Sections 65, 66(2), 66(6), and 73 of the Marriage Act, 2014 do not impair or violate Article 32 of the Constitution. iii. Whether the Marriage Act, 2014 is unconstitutional and discriminatory under Article 27 by recognizing Islamic personal law frameworks while omitting Catholic Canon Law. 104.The High Court at Nairobi set out the principles to be considered when determining the constitutionality of a legislation in Institute of Social Accountability & another v National Assembly & 3 others; Commission for the Implementation of the Constitution (Interested Party) (Petition 71 of 2013) [2015] KEHC 6975 (KLR) (Constitutional and Human Rights) (20 February 2015) (Judgment) wherein the learned judges held thus: -“56.First, this Court is enjoined under article 259 of the Constitution to interpret the Constitution in a manner that promotes its purposes, values and principles, advances the rule of law, human rights and fundamental freedoms in the Bill of Rights and that contributes to good governance. In exercising its judicial authority, this Court is obliged under article 159(2)(e) of the Constitution to protect and promote the purpose and principles of the Constitution.57.Second, there is the general presumption that every Act of Parliament is constitutional and the burden of proof lies on any person who alleges otherwise (see Ndyanabo v Attorney General of Tanzania [2001] EA 495). We therefore reiterate that this Court will start by assuming that the CDF Act 2013 is constitutional and valid unless the contrary is established by the petitioners.58.Third, in determining whether a Statute is constitutional, the Court must determine the object and purpose of the impugned statute for it is important to discern the intention expressed in the Act itself (see Murang’a Bar Operators and another v Minister of State for Provincial Administration and Internal Security and others Nairobi Petition No 3 of 2011 [2011] eKLR, Samuel Momanyi v Attorney General and another (supra)). Further, in examining whether a particular statutory provision is unconstitutional, the court must have regard not only to its purpose but also its effect. The Canadian Supreme Court in the R v Big M Drug Mart Ltd [1985] 1 SCR 295 enunciated this principle as follows;Both purpose and effect are relevant in determining constitutionality; either an unconstitutional purpose or an unconstitutional effect can invalidate legislation. All legislation is animated by an object the legislature intends to achieve. This object is realized through impact produced by the operation and application of the legislation. Purpose and effect respectively, in the sense of the legislation’s object and its ultimate impact, are clearly linked, if not indivisible. Intended and achieved effects have been looked to for guidance in assessing the legislation’s object and thus the validity.59.Fourth, the Constitution should be given a purposive, liberal interpretation. The Supreme Court in Re The Matter of the Interim Independent Electoral Commission Constitutional Application (supra) at para 51 adopted the words of Mohamed AJ in the Namibian case of State vs. Acheson 1991(20 SA 805, 813) where he stated that;The Constitution of a nation is not simply a statute which mechanically defines the structures of government and the relationship government and the governed. It is a mirror reflecting the “national soul” the identification of ideas and aspirations of a nation, the articulation of the values bonding its people and disciplining its government. The spirit and tenor of the Constitution must, therefore preside and permeate the process of judicial interpretation and judicial discretion.60.Lastly and fundamentally, it is the principle that the provisions of the Constitution must be read as an integrated whole, without any one particular provision destroying the other but each sustaining the other (see Tinyefuza v Attorney General of Uganda Constitutional Petition No 1 of 1997 (1997 UGCC 3)).61.We are duly guided by the principles we have outlined and we accept that while interpreting the impugned legislation alongside the Constitution, we must bear in mind our peculiar circumstances. Ours must be a liberal approach that promotes the rule of law and has jurisprudential value that must take into account the spirit of the Constitution….” 105.The Petitioner avers that the Constitution is supreme over Parliament and that the Court must strike down unconstitutional laws and cannot use judicial restraint or separation of powers to avoid protecting constitutional rights. He argues that the Marriage Act 2014 accommodates Islamic personal law by allowing dissolution strictly via Islamic law. He states in particular that Section 71 of the Marriage Act allows Islamic marriages to be dissolved strictly under Islamic law but treats Christianity as a single homogeneous group. His argument is that by failing to carve out an identical legal track for the Catholic Code of Canon Law, the Marriage Act propagates discrimination since it enforces a historically Anglo-Protestant framework that permits divorce, effectively marginalizing Catholics. 106.In considering the principles outlined in the case above and whether the Marriage Act is discriminatory and thus unconstitutional, I note that Kenya is a pluralistic society that requires a neutral civil framework, not one dictated by a single denomination. The Marriage Act 2014, in providing options for dissolution but not compelling it is in my view the most practical balance between religious freedom and individual rights. 107.Article 45(4) allows the recognition of religious personal laws and explicitly includes a limiting caveat which states, “to the extent that any such marriages or systems of law are consistent with this Constitution”. The Islamic marital framework is structurally unique because the Constitution of Kenya itself explicitly creates and recognizes the system of Kadhis’ Courts under Article 170. However, there is no such constitutional exceptionalism carved out for ecclesiastical Christian courts or the Metropolitan Tribunals of the Roman Catholic Church that the Petitioner wishes his case to be subjected to. 108.Furthermore, our historical and structural differences create a justification for this differentiation. Islamic law represents an inseparable religious legal system governing all civil aspects of a Muslim’s life, which this country has structurally integrated since the pre-independence era. 109.Conversely, Christian churches globally have historically recognized the secular state’s ultimate jurisdiction over the civil contract of marriage, relying on internal church discipline and conscience to guide their members. Parliament’s choice to regulate Christian marriages under a unified civil regime while preserving the constitutionally recognized Kadhis’ court structure is a legitimate legislative classification applicable to members of the Islamic faith and this does not in any way amount to unfair discrimination under Article 27 of the Constitution. 110.The Petitioner argues that by exchanging lifelong vows under Catholic rites, both he and the 1st Interested Party executed a permanent waiver of their right to seek a civil divorce. This Court must state categorically that while certain procedural constitutional rights can be waived, a citizen cannot contract out of fundamental civil protections or statutory rights established for public order and personal welfare. A marriage vow, however sacred within a place of worship, cannot operate as a legal estoppel to bar a citizen from accessing the courts to seek a statutory remedy. The right of access to justice and the right to individual safety and autonomy cannot be signed away in perpetuity. 111.The Petitioner’s frustration and religious devotion and convictions are clear. However, the High Court cannot mutate into an ecclesiastical court, nor can it impose the internal theological doctrines of the Roman Catholic Church onto the secular statutes of a pluralistic nation. This court concurs with the submissions of the 2nd Respondent that if indeed the Catholic community and in this case the Petitioner desire a distinct statutory framework within the Marriage Act, their proper constitutional path is to lobby and petition the National Assembly under Article 119 of the Constitution which provides that:119(1)Every person has a right to petition Parliament to consider any matter within its authority, including to enact, amend or repeal any legislation.(2)Parliament shall make provision for the procedure for the exercise of this right. 112.Accordingly, this court cannot be asked to use its judicial power to usurp this authority of Parliament or to override the permissive orderly and secular protections enacted by Parliament. At the same time, it is impermissible for the Petitioner to come under the ambit of civil law to procure a Christian marriage and then refuse to be subjected to the same law at the point when the marriage has broken down. 113.For the above reasons, this court finds that the non-incorporation of Catholic Canon Law into the text of the Marriage Act, 2014 does not violate Article 27 or Article 45(4) of the Constitution. 114.In conclusion, it is important to appreciate that marriage is fundamentally a partnership rooted in voluntary commitment and mutual happiness, not a coercive or imprisoning arrangement of until death do us part. Recognizing and appreciating marriage as a flexible and respectful institution allows for compassion and dignity for those facing unfulfilled or harmful relationships. Thus, ending a marriage can be a positive step towards personal growth and well-being, rather than a failure or moral failing. 115.A constitutional challenge to the provisions of the law must establish that the law infringes upon protected constitutional rights. In this case, it was not demonstrated that the Marriage Act violates any provisions of the Constitution or rights and fundamental freedoms guaranteed under the Constitution. Additionally, party cannot use a constitutional petition merely to oppose divorce on personal or moral grounds as is the case in this matter. Whether the reliefs sought can be granted and who bears the costs 116.From the findings above, this Court holds that the Petition lacks merit and cannot be allowed. Accordingly, the Court orders as follows:a.The Petition dated 30th March 2023 as amended on 17th July 2023 challenging the constitutionality of Sections 65, 66(2), 66(6), and 73 of the Marriage Act, 2014 is found to be devoid of merit and is dismissed in its entirety.b.This Court declines to issue any declarations incorporating the Catholic Code of Canon Law into the statutory corpus of the Laws of Kenya.c.All the orders sought in the petition are declined and dismissed.d.Each party shall bear their own costs of the petition. 117.This file is closed. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 17TH DAY OF JUNE, 2026R.E. ABURILIJUDGEPage 14 of 14