East African Law Journal (EALJ)

A JOURNEY OF FIVE DECADES: FAMILY LAW REFORM IN POST COLONIAL KENYA (1967-2015)

Celestine Nyamu Musembi — 2025-09-19

This article traces the historical trajectory of family law reform in post-colonial Kenya. Taking the 1967 Commission on the Law of Marriage and Divorce as its take-off point, the article draws from the commission’s internal documents, memoranda submitted to the commission, and media accounts of the time to isolate six key concerns that defined the legal reform debate then. These issues continue to animate the contemporary family law reform agenda: minimum age and consent to marry; universal registration of marriages; child custody and child support irrespective of legitimacy; safeguarding matrimonial property rights; mainstreaming alternative justice systems; and legal and institutional response to violence in the family. Legislative reforms of the past decade are assessed for the degree to which they fulfil the ambition of the 1967 Commission. The article concludes that buoyed by the 2010 Constitution’s framework that balances accommodation of plural normative orders with safeguarding of unifying constitutional ideals such as dignity and equality, gains in legislative reforms on minimum age and consent and child support have surpassed the 1967 proposals. However, reforms in matrimonial property, universal registration of marriage, mainstreaming alternative justice systems, and responding to gender-based violence in family relationships have yielded a mixed picture and left some unfinished business.

AFTER THE LAW FROM LEGISLATIVE SUCCESS TO COMMUNITY-LEVEL ACTION TO END CHILD MARRIAGE IN KENYA

Celestine Nyamu Musembi — 2025-09-18

This article explores the paradox of pockets of persistently high prevalence of child marriage in Kenya’s Northern counties against the backdrop of national legislative success and declining prevalence overall. Through a legal pluralism lens, it analyzes disaggregated county data which makes visible the bidirectional link between child marriage and poverty. An examination of community-level initiatives by government and civil society reveals a greater focus on norm change than on economic empowerment. The impact of interventions is poorly documented since the potential of initiatives such as county-level Child Protection Centers and the national helpline 116 to routinely gather in-depth localized data has not been fully harnessed. The article recommends investment in a robust evidence base to inform targeted localized interventions, integration of evaluation of impact on child marriage in all projects regardless of sector, and investment in educational and economic opportunities for girls. Unless legal reform is accompanied by such investment, formal legal norms will lose the contest for legitimacy at the local level.

REGISTRATION OF CUSTOMARY MARRIAGES IN KENYA: A LEGAL SOLUTION FOR A SOCIAL PROBLEM?

Valentine Nyokabi Njogu — 2025-09-19

Kenya’s Marriage Act, 2014 made registration of customary marriages mandatory for the first time. This article reviews the relevant legal provisions and judicial decisions for clarity and coherence. Against the backdrop of inconsistency in judicial pronouncements on the legal consequences of non-registration, and low compliance with the legal requirement, this article examines whether mandatory registration secures rights or exacerbates vulnerability of parties in undocumented relationships. The article also examines factors that might account for low uptake of registration, which include gendered imbalance in the power to define relationships, lack of clarity in the legal provisions, administrative challenges, limited public awareness, and mistargeting of the intended beneficiaries. Approaches taken in other African jurisdictions are discussed, distinguishing between those that take a permissive approach (where non-registration does not invalidate a marriage), and those that employ a punitive approach (where non-compliance invalidates a marriage), drawing lessons for Kenya. Acknowledging the limited role of formal law in directing relationships, the article offers recommendations toward an approach that balances the pursuit of legal compliance with actually facilitating people’s ability to use the law as a tool for securing rights in customary marriages.

THE MATRIMONIAL PROPERTY ACT 2013 IN ACTION: EMPIRICAL ANALYSIS OF A DECADE OF DECIDED COURT CASES

Sussie Mutahi — 2025-09-19

The enactment of the Matrimonial Properties Act in 2013 provided a framework for determining the ownership and division of matrimonial property between spouses in Kenya. Kenyan courts have had over a decade of resolving matrimonial disputes and interpreting various provisions of the Act. The paper analysed decisions from the High Court, the Court of Appeal, and the Supreme Court relating to the division of matrimonial property for the period 2013-2024. 94 cases sourced from the Kenya Law Website were analysed to identify patterns relating to the average duration of proceedings; length from decree to the filing of claim; average duration of marriage; registered owner of matrimonial property and division ratios relative to nature of proved contribution. The findings serve as a foundation for further socio-cultural research into gender and property ownership, the dynamics of property rights within marriage and gendered constructions of financial and non-financial contributions.

PARTITION IN LIFE AND IN DEATH: INTESTATE SUCCESSION AFTER THE MATRIMONIAL PROPERTY ACT, 2013

Ali Elema Fila — 2025-09-19

Kenya’s law on intestate succession is out of step with the 2010 Constitution and with recent reforms in family law. This article interrogates the logical inconsistency between the intestacy provisions of the Law of Succession Act (LSA) of 1981 and the Matrimonial Property Act (MPA) of 2013. While the MPA places great emphasis on a spouse’s contribution as the basis for entitlement, the LSA leaves no room for ring-fencing a spouse’s contribution from the intestate estate. A surviving spouse’s property rights, specifically the widow’s, are compromised further by the LSA’s over-inclusive definition of a widow under section 3(5) which opens up the intestate estate to rival claims without requiring any proof of contribution. Section 40 which deals with distribution of an intestate estate in polygamous families disregards spousal contribution by ranking widows as equal numerical units with all children of the deceased. This article makes proposals toward synergy between the two areas of law, arguing that otherwise the disconnect between them fails to accord full protection to spouses’ (especially widows’) rights to property during marriage and at its termination.

DEVELOPMENTS IN ISLAMIC FAMILY LAW: IMPLICATIONS FOR GENDER EQUALITY AND FREEDOM OF RELIGION IN KENYA

Moza Ally Jadeed — 2025-09-18

This paper discusses the major statutory and case law changes (positive and negative) which impacted the practice of Islamic family law (IFL) in the past 10 years. The beneficial modifications included the strong acknowledgement of IFL tenets in the Marriage Act, the Matrimonial Property Act and the Children Act. But this past decade also witnessed the apparent alteration of Islamic Inheritance Law through judicial interpretation. Similarly, a wrong interpretation of the principle of equality in the constitution and the Children Act have led some Muslim men to contest their wives’ claims for child custody on account of the latter’s inability to provide for the children. Through the lenses of multiculturalism, Muslim feminism and global critical race feminism, a purposive reading of the constitution and the literal reading of the statutes, this paper appraises these legal developments through the prism of the freedom of religion and gender equality.

KENYA’S LEGAL RESPONSES TO GENDER-BASED VIOLENCE: IMPLICATIONS FOR WOMEN IN THE CONTEXT OF FAMILY

Agnes Meroka Mutua — 2025-09-19

Since the promulgation of Kenya’s Constitution in 2010, the country has made progress towards addressing gender-based violence (GBV) and has passed legislation to address various forms of family violence. This paper however argues that while Kenya’s anti-GBV legal framework has been progressive in its recognition of and responses to family violence, it still has limitations which affect women specifically and the family in general. Using a textual and socio-legal analysis of statutes and case law to assess how Kenya’s legal responses to GBV have evolved since 2010, this paper demonstrates how the weaknesses Kenya’s anti GBV framework affects women in the context of the family.

ON AN ETHICAL FOUNDATION? THE CASE FOR REGULATION OF SURROGACY IN KENYA

Ludia Andala Luther — 2025-09-19

Kenya lacks a specific regulatory framework on surrogacy despite its Constitution providing for the right to reproductive healthcare. This could be attributed to the complex and contested ethical and legal issues surrounding surrogacy arrangements. This article proposes an ethical framework for the regulation of surrogacy that is based on the ethical principles of autonomy, beneficence, non-maleficence and justice. This article reviews relevant laws, court cases and proposed bills to demonstrate the gaps and make the case for a specific regulatory framework on surrogacy in Kenya. A comparative analysis of the United Kingdom’s, India’s and South Africa’s legal frameworks on surrogacy was undertaken to determine whether they reflect the four ethical principles, and to draw lessons for Kenya’s legislative reform. The results showed that the ethical principles of autonomy, beneficence, non-maleficence, and justice are reflected to varying degrees in the three jurisdictions. Kenya’s current legislative proposals could draw from this patchwork to achieve a balanced approach in protecting the diverse rights and interests of the parties to a surrogacy arrangement.

BURIAL RIGHTS AND RITES: SAFEGUARDING A KENYAN AFRICAN WIDOW’S POSITION UPON TERMINATION OF A CHRISTIAN MARRIAGE BY DEATH

Mercy Mwarah Deche — 2025-09-19

The absence of a clear legislative framework on burial that was decried by the Court of Appeal during the SM Otieno case persists over thirty years on. There has, however, been marked progress in reform of marriage laws following the promulgation of the 2010 constitution and the enactment of the family law statutes. The Marriage Act unbundles the different categories of marriages and the mode of terminating them along the contours of personal law. These contours are, however, not always maintained when it comes to termination of marriage through death. This article focusses on this inconsistency faced by widows in Christian marriages and makes a case for extension of the legal protection afforded to wives during the termination of marriage through divorce and nullification to termination through death, rather than default to automatic application of customary law for Christian widows.

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

Evance Ndong — 2025-09-19

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.