CASE REVIEW: KEY JUDICIAL PRONOUNCEMENTS ON CONSTITUTIONALITY OF ASPECTS OF FAMILY LAW IN POST 2014 KENYA

Abstract

This Case Review critically examines six decisions made by the Supreme Court of Kenya and the High Court Constitutional and Human Rights Division since 2014. These cases are pivotal in shaping the evolving landscape of family law. The Case Review highlights constitutional challenges to provisions of the Marriage Act and Matrimonial Property Act, including the one-year statutory limitation for instituting annulment proceedings, the three-year waiting period for divorce in civil marriages, and the constitutionality of contribution as the basis for entitlement to matrimonial property. The analysis explores the role of the judiciary in balancing individual rights with public interest imperatives such as protecting the family unit and ensuring child welfare. It discusses the one case that challenged the constitutionality of the application of the ban on child marriages to Islamic marriages on grounds of religious freedom. Recent Supreme Court decisions concerning the uncertain status of cohabitation unions in the wake of the Marriage Act of 2014, and the diminishing relevance of the common law presumption of marriage are also discussed. The review underscores urgent legislative gaps requiring reform to harmonize constitutional rights with family law.