Polygamy laws in Kenya: Marriages in Kenya are governed by the African Christian Marriage and Divorce Act and the Marriage Act. Both of these Acts were borrowed from the traditional English law provisions. Here is a look at what the law says about bigamy.
According to the Marriage Act, Section 35, 49, and 50, polygamy is illegal. On the other hand, section 171 of the penal code states that bigamy is an offence.
What is bigamy?
Bigamy is when a person goes through a marriage ceremony while they are still married to another wife or husband who is still alive. Furthermore, if a person’s first marriage has not been declared void in court, they are deemed to have committed bigamy. The offense of bigamy carries a 5 year prison term.
Bigamy cases rulings in Kenya
For Bigamy to be established, one has to define marriage and when a marriage is null and void. Here is a look at cases involving bigamy:
Case of Hyde v. Hyde (1886) L.R. 130
In this case, the court highlighted the meaning of marriage. Marriage under the Christian religion is the voluntary union between one man and woman while excluding all others.
The Cases of Kv.K
In a case that was heard in 1970, the petitioner was married by the respondent in a marriage ceremony held at the offices of the District Commissioner. At this time, the respondent was already married to another woman through Kikuyu customary law. However, this customary marriage was never annulled.
The petitioner argued that according to the Matrimonial Causes Act, a monogamous marriage is when one man and woman are joined to the exclusion of all others. Therefore, this marriage was null and void since there was another marriage that was performed under customary law. The court ruled that the respondent was guilty of adultery.
Other Conditions Of Marriage in Kenya
Conditions Related to Capacity
Parties need to be biologically man and woman. This condition has become a controversial issue in this age where people are undergoing sex changes. In the case of Corbett v. Corbett (1970), the petitioner claimed that they married a person who had been born male but had undergone a sex change. The court ruled that the marriage was null and void since the respondent was not biologically female and; therefore, the marriage could not be consummated.
Another condition is that the parties have to be single. This means they are either single, widowed, or divorced. The other condition is that a person must be at least 16 years and above.
Bigamy may also be established by considering the prohibited laws on relationships. The Marriage Act, Section 35, lays out the prohibited decrees. According to the Act, marriage between persons with close relations is prohibited.
In closing, bigamy is when you get marriage when you are already in another marriage. When considering whether bigamy is illegal or not, one has to determine what a marriage is and when a marriage is considered null and void.
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Edwin Orisi says
Is bigamy legal in kenya after enactment of 2019 marriage act
with the current polygamy law in Kenya, signed in October 2019, permitting men to ” marry as many wives as they wished”, does it mean that bigamy is no longer a crime in Kenya?
No person in Kenya will ever be charged with bigamy?