[2017] KEHC 3848 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL SUIT NO. 55 OF 2014 (OS)

M A A H..........................................................................PLAINTIFF

VERSUS

THE HON. ATTORNEY GENERAL........................RESPONDENT

JUDGMENT

BACKGROUND

1. The fundamental question before me for determination is whether a marriage can be declared illegal and or invalid by virtue of issuance of a marriage certificate under the African Christian Marriage and Divorce Act Cap 151 Laws of Kenya (repealed) instead of one under the Marriage Act Cap 150 (now repealed).

2. The plaintiff in this case one M A A H was ordained as a church minister with Glad Tidings Church and subsequently issued with a licence on 4/3/1981 to celebrate marriages in Kenya under African Christian and Divorce Act Cap 151. However, in compliance with Section 14 of the Marriage Act (Cap 150), he was authorized to celebrate marriages under the said Act subject to obtaining a special licence or certificate issued by the registrar of marriages for that particular or specific marriage.

3. Upon obtaining his licence, the plaintiff was issued with a book of marriage certificates under the African Christian Marriage and Divorce Act which he later issued to about 107 couples whose marriages he celebrated between July 1981 and September, 1994 under the Marriage Act Cap 150 after acquiring the requisite special licences.

4. Among the couples he officiated upon their marriage after acquiring a special licence was D R M a male citizen from Bermuda and G G R a female American citizen whom he issued with a marriage certificate dated 6th September, 1990 under the title of African Christian and Divorce Act Cap 151 instead of one under the Marriage Act Cap 150.

5. Sometime the year 1994, rumours started circulating to the effect that the marriage certificates that the plaintiff had issued to about 107 couples were questionable, invalid and or illegal. A case in point that the plaintiff came face to face was that of D R M and G G R whose marriage he had officiated at Masaai Mara on the 6/9/1990. Sometime the year 2004, the couple approached him to have their marriage certificate which he had issued to them certified and or authenticated as a valid and official document by the Attorney General’s office through the registrar of marriages. According to the couple, the certificate referred herein was required in Bermuda where the couple was ordinarily resident and G G R had applied for citizenship by virtue of being a wife to D R M.

6. Confronted with this request, the applicant moved to the registrar of marriages at the Attorney General’s office seeking to have the marriage certificate in question certified or authenticated as valid despite the same having been issued erroneously to a marriage celebrated under Cap 150 instead of the applicable marriage certificate under the same Act. In response, the registrar of marriages declined the request and instead advised the plaintiff to organize for the couple to avail themselves for a fresh marriage or move the court for declaratory orders that the marriage was valid.

7. Dissatisfied with the refusal to certify the certificate and explanation given by the registrar of marriages, the plaintiff opted to take legal action thereby suing the Hon. the Attorney General on 26/8/2014 under Originating Summons dated 21/8/2014 pursuant to order 37 rule 11 of the Civil Procedure Rules, African Christian Marriages and Divorce Act Cap 151 (repealed) and the Marriage Act 2014 seeking the court to address and make a determination on the following issues:

(a) Whether the non recognition of the form of the marriage certificate issued under the African Christian Marriage and Divorce Act purely on racial grounds is discriminatory and a violation of Article 27 of the Constitution of Kenya 2010 as well as Section 82 of the formerconstitution and is therefore invalid.

(b) Whether Section 3(1) of the African Christian Marriage and Divorce Act was unconstitutional vis a vis Section 82 of the former constitution is unconstitutional vis a vis article 27 of the Constitution of Kenya 2010.

(c) Whether the issuance of a marriage certificate in the form prescribed under the African Christian Marriage and Divorce Act to a couple that is racially not African when all other essential legal and formal requirements of the marriage have been complied with can invalidate the marriage.

(d) Whether the marriages celebrated by the Plaintiff as a licenced Minister between July, 1981 and September, 1994 in which he issued marriage certificates in the form prescribed under the African Christian Marriage and Divorce Act are valid.

(e) Whether the Defendant’s Department of Registrar General has an obligation to authenticate the marriage certificate issued to D R M and G G R on 6th September, 1990 in Masaai Mara and all other marriage certificates issued in the form prescribed under the African Christian Marriage and Divorce Act in spite of the fact that the couples to the said marriages were not of theAfrican race.

(f) In the alternative to (e) above, whether the Defendant’s Department of Registrar General has an obligation to issue a fresh certificate by way of rectification under the Marriage Act Cap 150 to the date of marriage.

(g) Who should bear the costs of this suit.

PLAINTIFF’S CASE

8. In support of his summons, the plaintiff swore an affidavit deponed on 21st August, 2014 in which he asserted that, having been ordained as a church minister with Glad Tidings Church in 1981, he was licenced to conduct and celebrate marriages both under the African Christian Marriage and Divorce Act Cap 151 and the Marriage Act Cap 150 under special licence which he obtained in all the 107 marriages which he celebrated from 1981 to 1994 between non African couples.

9. He further confirmed that, in all those marriages, he issued marriage certificates under the African Christian Marriage and Divorce Act and not under the Marriage Act and that he did not know that it was wrong as the registrar of marriages never questioned his conduct at any one time even as he filed returns and paid for the same without any challenge for all that period.

10. During the hearing, he adopted his affidavit as his testimony and went ahead to produce a copy of his licence (PExh 1A) issued on 4/3/1981to celebrate marriages under Cap 151, a second licence issued on 6/8/1996 (PExh.1B), marriage certificate under Cap 151 issued to R M and his wife (PExh.2B) and a special licence dated 24/8/90 authorizing him to celebrate that particular marriage (PExh.2A).

11. According to him, the marriages he conducted were legal and therefore valid and that the only mistake he committed was that of issuing wrong “stationery” to a valid marriage i.e. issuing a marriage certificate reflecting a marriage under African Christian and Divorce Act Cap 151 to a marriage celebrated in accordance with the marriage Act Cap 150 instead of a marriage certificate reflecting Cap 150. To the plaintiff, this is an omission which is curable and does not go to the substance and or validity of the marriage which has not been challenged hence the registrar should reissue a fresh certificate under the correct statute backdated to the relevant date of the marriage or certify the original one now in question as valid and authentic document.

DEFENDANT’S CASE

12. In response to the plaintiff’s case, the honourable the Attorney General filed a replying affidavit sworn by the registrar of marriages on the 25th/2/2015 opposing the suit herein. The defendant admitted that the plaintiff was licenced to officiate marriages and that a special licence to officiate D R M’s marriage was obtained and that the marriage was conducted under the Marriage Act Cap 150.

13. The defendant however is challenging the validity of the marriage on grounds that although celebrated by a duly licenced minister, the official certificate issued bearing the title “African Christian Marriage and Divorce Act Cap 151” to a marriage celebrated under Cap 150 is illegal and cannot be validated or authenticated and that the registrar of marriages has no power in law to rectify or authenticate a marriage certificate issued under a wrong statute.

SUBMISSIONS

14. In support of the plaintiff’s claim, Mrs. Thongori, counsel for the plaintiff broke down into four issues for determination as follows:-

(i) Whether the marriage conducted by the plaintiff in respect of D M and G G was valid.

(ii) Whether the issuance of the marriage certificate under the African Christian Marriage and Divorce Act to non-Africans can invalidate a marriage.

(iii) Whether the invalidation of marriage certificate can be deemed to be discriminatory.

(iv) Whether the registrar general has the power to authenticate themarriage certificate or in the alternative, rectify the marriage certificate.

15. Learned counsel referred the court to Section 35 of the Marriage Act Cap 150 which provides instances when a marriage can be declared invalid and that issuance of a marriage certificate is not one of such circumstances hence the certificate issued to D R M should be declared valid.

16. On the second issue, Mrs. Thongori asserted that, issuance of a marriage certificate under a different statute other than the one under which the marriage was conducted would not invalidate a marriage. Counsel submitted that, although a mistake occurred in issuing a wrong certificate to a valid marriage, the same cannot be declared invalid in the spirit of Section 27 and 35 (4) of the Marriage Act Cap 150 Laws of Kenya.

17. As to whether invalidation of marriage certificate can be deemed to be discriminatory, counsel took issue with the registrar’s remarks that he could not authenticate the marriage certificate as the couple were non Africans and therefore African Marriage and Divorce Act could not apply to them. Counsel submitted that, the remarks made by the Registrar were discriminatory in nature and the same cannot apply in the face of Article 27(4) of the Kenya Constitution. She referred the court to the case of Peter K. Waweru vs. Republic (2006) eKLR and GGW v RMWW (2004) eKLR in which both courts castigated any provisions of the law or actions which tends to discriminate against a person on grounds of race.

18. In answer to issue No. 4, Mrs. Thongori urged the court to direct registrar general to authenticate the marriage certificate or in the alternative rectify the same.Counsel contended that the difference between a certificate issued either under African Christian Marriage and Divorce Act or Marriage Act is really one of form as both are monogamous and the requirements are the same hence the reason why under Section 3(2) of the Marriage Act Cap 150, even Africans were allowed to marry under the same Act.

19. Learned counsel termed the error as that which is curable under Section 33 of the Marriage Act Cap 150 being a clerical error, Section 99 of the Civil Procedure Rules being errors or mistakes arising from a slip or omission, and Article 159 (2) (D) on court’s decisions made without due regard to technicalities. Lastly, counsel urged the court to consider the welfare of the children who may have been born out of those marriages which are to be declared illegal.

RESPONDENT’S SUBMISSIONS

20. On the other hand, the respondents counsel Miss Mbeda narrowed her submissions into three. Firstly, she sought to address the issue as to whether Section 3(1) of the Marriage Act Cap 150 which provides that “……….this Act shall apply only to the marriages of Africans one or both of whom profess the Christian religion and to the dissolution of such marriages” is unconstitutional and therefore contravenes Section 82 of the old constitution and Article 27 of the 2010 Constitution. Counsel submitted that there was nothing unconstitutional and she referred the court to the case of C S vs B S Nairobi HC Divorce Cause No. 6/994 (unreported) where the court nullified a marriage in which parties in the marriage were of European origin in race but celebrated and contracted a marriage under Cap 151.

21. As to whether the registrar can rectify or authenticate a marriage certificate or issue a fresh one backdated to the date of the couple’s marriage, counsel submitted that it will be illegal as the same does not fall within the powers of the registrar as provided for in law both under Cap 150 (repealed) the 2014 Marriage Act.

ANALYSIS AND DETERMINATION

22. I have considered summons herein, supporting affidavit and replying affidavit, testimony by the plaintiff, exhibits, submissions by both counsels and authorities quoted thereof.

23. There is no dispute that the plaintiff herein was licenced and authorized to celebrate marriages both under the African Christian Marriage and Divorce Act Cap 151 as well as Cap 150 under special licence. In the same vein, it is admitted by both parties that the plaintiff did celebrate a marriage under Cap 150 Laws of Kenya on 6th September,1990 between D R M and G G R being non-Africans but inadvertently issued them with a wrong marriage certificate under Cap 151 instead of one under Cap 150.

24. Having settled the undisputed issues, the court is left with the following issues for determination:

(a) Whether the marriage celebrated by the plaintiff between D R M and G G R on the 6th September,1990 is valid.

(b) Whether the marriage certificate issued to the said couple on the 6th September, 1990 under the African Christian Marriage and Divorce Act instead of that under Cap 150 is valid.

(c) Whether invalidation of the said marriage can be deemed to amount to racial discrimination of the couple.

(d) Whether the registrar general of marriages can certify and or authenticate the marriage certificate as legal and valid.

(e) Whether the registrar general of marriages can reissue a backdated fresh, correct and or relevant marriage certificate under Cap 150 by endorsing the actual date the marriage was celebrated.

(f) Whether the orders sought and if granted should apply to the other 106 marriage certificates issued by the plaintiff in similar manner to several other couples.

25. Regarding issue No. 1 and 2, the plaintiff did celebrate a marriage between D R M and G G R under Cap 150 after a special licence so as to be officiated in accordance with Section 14 of the Marriage Act Cap 150 which provides thus:

“The minister upon proof of being made to him by affidavit that there is no lawful impediment to the proposed marriage, and that the necessary consent, if any, to such marriage has been obtained, may, if he thinks fit, dispense with giving of notice, and with the issue of the certificate of the registrar, and may grant his licence, which shall be in the prescribed form authorizing the celebration of a marriage between the parties named in such licence by registrar or by a recognized minister of some religious denomination or body”.

26. Section 35 of the Marriage Act Cap 150 set forth grounds upon which a marriage can be declared invalid as follows:

Section 35(1) “no marriage in Kenya shall be valid which, if celebrated in England, would be null and void on the ground of kindred of affinity, or whether either of the parties thereto at the time of the celebration of such marriage is married by native law or custom to any parties other than the person with whom such marriage is held”.

Sub-section 2 goes further to provide

“A marriage shall be null and void if either party thereto is under the age of sixteen years at the time of celebration of such marriage.Provided that nothing in this subsection shall affect any marriage celebrated before the commencement of this sub-section”.

Sub-section 3 – a marriage shall be null and void if both parties knowingly or willfully acquiesces in its celebration

In any place either other than the office of a registrar of marriages or a licenced place of worship (except where authorized by the minister’s licence) or

Under a false name or

Without the Registrar’s certificate of notice or minister’s licence duly issued or

By a person not being recognized minister of some religious denomination or body or registrar of marriages.

Sub-section (4) – But no marriage shall, after celebration be deemed invalid by reason that any provision of this Act other than the foregoing has not been complied.

27. In reinforcing Section 35 above referred, Section 36 Cap 150 provides that:

“All marriages celebrated under this Act shall be good and valid in law to all intents and purposes.In the instant case, all the conditions as set in Sections 14, 35 and 36 of the Marriage Act with regard to validity of a marriage have been met and for all purposes and intent the marriage should be deemed as valid”.

28. The legality, validity and or legitimacy of the marriage all rituals and procedures as required in law having been fulfilled, cannot be challenged, sacrificed and or questioned at the altar of a celebrating Minister’s mistake or omission by issuing a wrong certificate to an otherwise faithful and innocent couple. This position is further bolstered by the fact that the plaintiff did file returns to the registrar of marriages and the same were accepted without any question or objection (see returns letter marked PExh.5).

29. Turning to issue No. 3 concerning the unconstitutionality of Section 3(1) of the Marriage Act vis a vis Section 82 of the old constitution and Article 27 of the 2010 Constitution, the court must reflect on the rationale and objective behind the different colonial application of the law under Cap 150 and 151 laws of Kenya. It is clear that Section 3(1) of the Marriage Act provided for non African marriages under the said Act and litigation arising out of divorce proceedings to be filed before the high court whereas Cap 151 provided for African Christians only with divorce proceedings conducted before a magistrate’s court.

30. As correctly observed by Judge Kubo in the case of GGW v RMWWquoted above, Section 3, 14 and 15 of the Marriage Act Cap 150 were unconstitutional to the Kenyan Constitution and recommended for repeal.It is a fact that there was no cogent reason advanced and or underpinning the application of different laws under the two acts governing marriage in Kenya other than class based superiority complex by Europeans over Africans, pride, selfishness, stereotype belief that Africans were primitive and could not have shared anything including courts with Europeans, desire to forcibly convert Africans to Christianity and the belief that monogamous marriage was the only modern way of living in society.

31. Be that as it may, it is a fact that Section 3(1) of the Marriage Act Cap 150 was unconstitutional contrary to Section 82 (3) of the old constitution and Article 27(4) of the 2010 Constitution in that it discriminated against Africans in dictating different laws applicable in marriage.

32. However, the scenario in this case is not perse or strictly so to say an issue regarding the constitutionality of the marriage and or discrimination but rather an omission on the face of the record (form) and not the substance of the marriage.Nobody has challenged the process and the law under which the marriage in question was conducted.I do not agree with the submissions by Mrs. Mbeda learned counsel comparing the marriage herein with the one in the respect of C S vs G B S (above quoted).This case is distinguishable from the facts in the instant case in that in Christine’s case, a couple of European origin celebrated and contracted their marriage under Cap 151. This is different from this case where the marriage was conducted under the correct Act.

33. The only issue this court must address is whether the wrong certificate issued can be rectified, authenticated, certified or reissued without remarrying the couple or after remarrying. The remarks made by the registrar general that the couple having contracted their marriage under Cap 150 cannot be issued with a certificate under Cap 151 since they are no-Africans was with reference to the legal requirement then relevant to the effect that Cap 151 was only applicable to Africans. The remark should not be quoted out of context as referring to discrimination of the couple in question on account of race.

34. Can the certificate be corrected under Section 33 of the Marriage Act. Mrs. Thongori urged the court to treat the omission as a clerical error curable under Section 99 of the Civil Procedure Rules.However, the omission being referred to in this case is not in the nature of a clerical error which the registrar of marriages can correct by endorsement hence the two provisions cannot apply.

35. The next issue is whether, the registrar can issue a fresh marriage certificate under the correct statute backdated to the date of the marriage.Counsel for the plaintiff supported this proposition while counsel for the defendant vehemently opposed the same.Ordinarily, a marriage certificate is issued contemporaneously with the celebration of the marriage.It will therefore not be appropriate to recall the couple to Kenya for purposes of remarrying them having already taken vows long time ago.

36. Although there was no express provision in both Cap 151 and Cap 150 of Laws of Kenya envisaging such anormally and a remedy provided, a court must provide a remedy even when there is none specifically provided for in the statute or constitution if justice so demands.

37. Having held that the validity of the marriage is not in question, the registrar can actually exercise his discretion as the custodian of marriage certificates to issue a fresh marriage certificate in conformity with the statute under which the marriage was celebrated thereby reflecting the marriage under the correct marriage register.

38. A scenario in which a fresh certificate issued in place of an original is now applicable under Section 8(1) (5) of the Marriage Act 2014 in which a potentially polygamous marriage issued with a marriage certificate can revert to monogamous marriage and subsequently reissued with a certificate registering the marriage as monogamous. It causes no harm by the registrar reissuing a fresh certificate to the couple affected and the ends of justice would have been met.

39. With regard to recalling the couple to come back to Kenya for a fresh marriage will be tantamount to admitting that the original marriage was illegal and irregularly conducted which is not the case. It will also subject the parties to unnecessary expense and inconvenience. The process will also most likely subject all legal transactions that the couple may have taken jointly since 1990 as a consequence of their marriage into jeopardy including the legal status of the children born out of their monogamous marriage. An option of this nature will most likely open a Pandora box of litigation incase of legal transactions undertaken by the couple or any other couple celebrated by the plaintiff in similar manner based on the strength of their marriage with a Kenyan issued marriage certificate.

40. What if the registrar certified and authenticated the marriage certificate in question as confirming a valid marriage hence a legal document recognized by the Kenyan government?

41. I am convinced that the other alternative remedy is for the registrar of marriages to recognize that there was a legal and valid marriage celebrated and concluded in accordance with the applicable Kenyan laws by the plaintiff. In interpreting statute, a court is urged to take into account the objective, intent and purpose of legislation without attaching a strict interpretative approach and want of form which does not serve the ends of justice. The Marriage Act Section 36 Cap 150 is clear that “all marriages celebrated under this Act shall be good and valid in law to all intents and purposes”. See Joseph Kaberia Kahenya and 11 others vs Attorney General 2016)eKLR in which the court held

“........the days have long passed when courts adopted a strict constructionist view of interpretation which required them to adopt the literal meaning of the language.The courts now adopt a purposive approach which seeks to give effect to the true purpose of legislation and are prepared to look at much extraneous material that blows upon the background against which the legislation was enacted.”

42. In this case, the intention and purpose was to contract a lawful marriage which is not in doubt. The mistake of the celebrating Minister cannot be visited on the couple of the marriage. The anormally in issuing a wrong certificate to an otherwise lawful marriage is not a fatal omission and nobody will suffer harm if the registrar general who is the custodian of all marriage certificates dispensed through marriage registrars and Ministers as agents were to certify the same as a legal document legally issued and recognized by the government of Kenya through his office.

43. By merely confirming that the marriage certificate was issued by the Kenyan government as an official document recognizing a valid marriage should not be a big issue for the registrar of marriages to be worried about.

44. Lastly, I will now turn to the issue as to whether the orders of this court in this case can apply to the other 106 similar marriage certificates issued to other couples who are not parties before this court nor any known court with competent jurisdiction. I wish to state that, a court cannot issue an omnibus and roaming judgment in respect of nonexistent or anticipated litigants. There is no proof that those marriages does exist and that the couples are still alive or whether they are interested. If they ever arise, they shall be dealt with on their own merits as circumstances will dictate.

45. For the above reasons stated, and having made a finding on a just and appropriate possible remedy, I am satisfied that the plaintiff has proved his case on a balance of probability and thus judgment is entered in his favour with orders as follows:

(a) That the registrar general of Marriages be and is hereby directed to certify and or authenticate marriage certificate serial No. 367365 issued on 6/9/1990 to D R M and G G R as an official document issued by government of Kenya or

(b) In the alternative, issue a fresh a marriage certificate under Cap 150 Laws of Kenya reflecting the actual date of marriage in respect of the said couple.

(c) That each party to bear its costs

(d) Right of appeal 30 days

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 13TH DAY OF JULY, 2017.

J.N. ONYIEGO (JUDGE)

In the presence of:

Mrs. Thongori counsel for appellant

No appearance for counsel for defendant

Edwin – Court Assistant