[2006] KEHC 2288 (KLR)
The court found that the African Christian Marriage Act, by its express terms, applies only to Africans who profess the Christian religion. Since both parties are Caucasian, the Act does not apply to their marriage, and the marriage certificate issued under the Act is invalid. The court further observed that the...
Source-derived case information.
- Citation
- [2006] KEHC 2288 (KLR)
- Parties
- Petitioner: S.E.D; Respondent: D.J.D
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 82 of 2005
- Procedural Posture
- Divorce Cause / Judgment
- Outcome
- Marriage declared a nullity; decree nisi to be made absolute within 15 days.
- Judges
- KH Rawal
- Legal Topics
- Marriage Nullity, African Christian Marriage Act, Racial Discrimination, Constitutionality of Statutes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
S.E.D
Petitioner
D.J.D
Respondent
Procedural Posture
Divorce Cause / Judgment
Legal Issues
- 1 Whether the African Christian Marriage Act applies to parties of Caucasian race.
- 2 Whether the marriage between the parties is valid under Kenyan law given their race and the statute.
- 3 Whether the statute is discriminatory and unconstitutional.
Ratio Decidendi
The court found that the African Christian Marriage Act, by its express terms, applies only to Africans who profess the Christian religion. Since both parties are Caucasian, the Act does not apply to their marriage, and the marriage certificate issued under the Act is invalid. The court further observed that the statute is discriminatory and unconstitutional, as it draws distinctions based on race. Consequently, the marriage between the parties is declared a nullity, and a decree nisi is issued to be made absolute within 15 days. The court emphasized the need for legislative reform to remove such discriminatory statutes from Kenyan law.
Court Disposition
Marriage declared a nullity; decree nisi to be made absolute within 15 days.
Orders
- The marriage between the parties is declared a nullity.
- Decree nisi to be made absolute within 15 days of the judgment.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
Divorce Cause 82 of 2005
S.E.D ……............................………... PETITIONER
VERSUS
D.J.D…………....................…………. RESPONDENT
JUDGEMENT
The parties before the court are not African but are Caucasians by race. I shall be pardoned to use those words but they are pertinent to the decision of this case.
They got married at the Evangelical Lutheran Church in Nairobi. Little they knew that their marriage was stamped and certified under the African Christian Marriage Act (Cap 151 Laws of Kenya). Their marriage certificate is annexed to the Petition.
Under Section 3 of the said Act, the provisions thereof shall apply only (emphasis mine) to the marriages of Africans one or both at whom profess the Christian religion.
This act came into force on 17th December 1931 and from objects and all other provisions of the Act it leaves no doubt that the said Act does not apply to the persons belonging to the Caucasian race. The ‘whites’ as they are commonly called in Kenya.
It pains me to state that this archaic Act which in my view is not only unconstitutional and discriminatory but is derogatory to all Kenyans of all races. The faster it is removed from pages of our laws, the better it would be.
Coming back to the petition before me, I have no other option but to declare the marriage between the parties herein as nullity which I hereby do.
The decree nisi be made absolute within 15 days thereof looking at the date of the alleged marriage.
Dated and signed this 8th day of June, 2006.
K.H. RAWAL
JUDGE
8. 6.06