THE CATHOLIC UNIVERSITY OF EASTERN AFRICA

FACULTY OF LAW

CLS 430: PRIVATE INTERNATIONAL LAW

LECTURER: MR. RONALD MOMANYI

TURN IN DATE: 12TH NOVEMBER 2019

GROUP MEMBERS

Evans Muiruri Mwangi 1027447

Ashley Inyanya Kitisya 1030074
Muchemi Wangui Susan 1030089
Elizabeth Wanjiku Njuguna 1030069
Isaac Emojong 1030124
Steven Nyaundi 1022802
Andia Amimo Wakhu 1030077
Question:

What do you understand by the term marriage in view of the definition under Kenyan Law?
Discuss the view that same sex unions are evil and ought to be condemned by all right thinking
members of the community in relation to Private International Law.

DEFINITION OF MARRIAGE

In the case of Hyde v Hyde and woodmansee1 Lord Penzance held that; marriage as understood in
Christendom may for this purpose be defined as the voluntary union for life of one man and one
woman, to the exclusion of all others.2 While according to the Kenyan constitution a marriage can
be defined as the union of adult persons of the opposite sex, based on the free consent of the
parties.3

According to Lord Westbury’s dictum in Shaw v Gould4 he stated that even in the recent decades,
marriage is a foundation of a civil society thus a country should have laws which regulate the
manner and conditions of forming and if necessary, dissolving the marriage contract. For example,
here in Kenya we have the constitution 5as well as statutory provisions that regulate the institution
of marriage.

According to section3 (1) of marriage Act, a marriage is defined as a voluntary union of one man
and one woman whether in a monogamous or polygamous union in accordance with the Act.

HISTORY OF MARRIAGE

The first recorded evidence of marriage was around 2350 BC in Mesopotamia. When a woman
got married, she was considered to be the man’s property. Marriage was also important because it
provided some kind of assurance that the children born were truly his. In ancient Greece, the father
would say “I pledge my daughter for the purpose of producing legitimate offspring.” In Ancient
Hebrew, men were free to take several wives that were required to stay at home. If they were

1
(1886) L.R.I.P &D.130
2
Definition of marriage, http:// www.jstor.org/stable/1094962?sid=21105736757381&uid=4&uid=3738400&udi=2.
Assessed 3/22/2015.
3
Article 45 (2), the constitution of Kenya 2012.
4
(1868) L.R.3H.L55,82
5
Kenyan constitution 2010, government printers.
unable to bear children, the woman would be returned to the family and the man would take another
wife.6 Marriage during English times was a bit different. During this period, the main goal for
marriage was to unite families and create alliances. The marriages were mainly arranged and
proved to be of economic benefit to the families involved7. For example, if a girl would marry into
a rich family, then the girl’s family could also have some sort of financial gain from such a union.
In the 1500s, marriages happened without witnesses or a ceremony though this changed later on
in 1563. In 1563, it was stated that a wedding was to be celebrated by a priest and there should be
at least two witnesses. Marriage then took a new role of procreation and love was not necessary.8

VALIDITY OF MARRIAGE

Marriage in essence is a contract which has some requirements for it to be termed as valid. Which
in general include consent, formal requirements, capacity and since marriage is a sui generis
contract, consummation is also a requirement.

Section 3(3) further states that marriages registered under the Act shall have the same legal status.
The legal status refers to the validity of the marriage.

CAPACITY

Capacity generally refers to the ability of both the parties to the marriage to agree to become
husband and wife. Both parties must be of ‘sound’ mind and capable of agreeing to the marriage.
A common test of capacity is the ability of individuals to understand the nature of marriage and
what their responsibility are to their partners once they enter into the union.

a) MARITAL STATUS

Both parties about to get married must be single meaning they can never have been married before.
Divorced or widowed. This is illustrated in the case of Alfred Nderi v Charity Kamweri. A man
gave notice of his intention to marry a lady and a caveat was then placed by the respondent

6
The origins of marriage. (2019). Retrieved 9 November 2019, from https://theweek.com/articles/528746/origins-
marriage
7
Stritof, S. (2019). A Brief History of Marriage and How It Has Evolved. Retrieved 9 November 2019, from
https://www.thespruce.com/history-of-marriage-2300616
8
ibid
claiming that the man was already married to the respondent under the kikuyu customary law,
therefore Nderi did not have capacity to marry under statutory law, since he was not single in the
first place.

Where a person is already married under customary law, they cannot contract a statutory marriage,
this is in accordance to section 8 (2) of the marriage Act 2014; a polygamous marriage may not
be converted to a monogamous marriage unless the time of the conversation the husband has only
one wife.

In the case of K v K, a petitioner in 1970 went through a form or ceremony of a marriage with
the respondent in Nairobi and at the time, the respondent was married to Grace Waiyaki in
accordance with the Kikuyu customary law. The court held that only a monogamous marriage
could be created under the Marriage Act and as the husband was already married, the ceremony
was invalid and establish no marriage status.

Under section 6(2) of Marriage Act a Christian, Hindu or civil marriage is monogamous.

Under section 11(1) (C) of Marriage Act, a marriage is void if either party is competent to marry
by reason of a subsiding marriage.

In this part under customary law, it’s quite different, under section 6(3).

It states that a marriage celebrated under customary law is presumed to be polygamous or

potentially polygamous. Hence, the marital status in customary marriage, a man may be single or
married since customary allows for polygamy but for women, they are required to be single even
in most African communities. Single means unmarried and therefore if widowed and divorced is
not considered single. It’s also important to note that under section 9(1) of Marriage Act; once a
person is married in a polygamous marriage they cannot contract another marriage in any
monogamous form.

b) AGE

Parties intending to marry must be of age to contract a marriage under section 4 of the marriage
act 2014, a person must be at least 18 years of age to marry before it was a minimum of 16 years.
Under section 11(1) (a) of marriage act, a marriage is void if either party is below the minimum
age for marriage.

An illustration of a case is the case of Pugh v Pugh (1951). In this case a man who was over 16
years married a girl of 15 years and it was held that the marriage was void. This is because it was
considered to be immature and they should not have the stresses and responsibilities, sexual
freedom of marriage and the physical strain of child birth.

In this part under customary law, it is quite different under section 6(3).it states that a marriage
celebrated under customary law is presumed to be polygamous or potentially polygamous. Hence,
the marital status in customary marriage, a man may be single or married since customary law
allows polygamous for men but for the women are required to be single even in the most African
communities. Single means unmarried and therefore if widowed or divorced it is not considered
single.it is also important to note that under section 9(1) of marriage act, once a person is married
in a polygamous marriage they cannot contract another marriage in any monogamous form. In
customary marriage the issue of age is not really considered because the parties do not have to be
of a specific age, what matters mostly is not the age but whether the parties have gone through an
initiation ceremony. Normally the initiation ceremonies differ among communities but a common
example is the circumcision. In customary, the age will depend upon the age when the initiation
ceremonies takes place ranging mostly from 10-16 or 17 years.

When it comes to an issue of conflicts of law the original rule was that the validity of a marriage
depended on the place of celebration (lex loci celebrationis). However, in 1861 the House of Lords
drew a distinction between the formalities of marriage governed by the law of place of celebration
and the question of capacity to marry which is governed by the law of each part’s ante-nuptial
domicile.9 The following requirements have to be available for marriage to take place; they
include:

FORMAL REQUIREMENTS
NOTICE

Parties who seek to get married under statutory law must give notice of their intention to get
married and this is provided for under Section 24 of the Marriage Act. This notice is given at the

9
Brook v Brook (1861)9 H.L.C 193.
office of the registrar of marriages in the District where the parties reside. Always saving that
notice the registrar then enters it in a marriage notice book that he or she maintains and he is also
required to publish that notice by affixing a copy of the notice outside his office and the notice
stays there for a maximum period of 3 months or until the marriage certificate is issued to the
parties. This requirement mainly arises from the fact that in evolution of marriage under common
law it was demanded that a marriage be a public act and should not be celebrated in private but in
a public place.

When giving notice the parties must attach an affidavit stating the following:

a) That at least one of the parties has been resident within that district for at least 15 days;

b) That the parties have attained the age of 21 years but if the parties range between 16 and 21
years they must attach consent in writing from their parents or guardians.

c) That they are not related in any way by blood or marriage

d) That they are not married to any other person under any law at the time of issuing such notice.

These requirements are found in Section 25(1) of the Marriage Act.

Under Section 27(1) - if any person is dissatisfied with that notice, he or she either places a caveat
in the marriage notice book giving his or her reasons for challenging the intended marriage. A
notice of objection shall include the name of the person giving the notice of objection and the
person's relationship with either of the intended parties to the marriage and shall state the reasons
for the objection to the intended marriage.

In the following cases: Alfred Nderi & Charity Kamweru; EF & EC. The facts in these two
cases are very similar but the rulings were quite different. In both cases the man gave notice of
his intention to marry a lady and a caveat was then placed by the Respondent in both cases claiming
that the man was already married to the Respondent and therefore had no capacity to contract the
intended marriage. In Nderi’s case it was actually 2 caveats and it was held that the common
knowledge that Nderi had in fact been married to both women under Kikuyu Customary Law while
one of the marriages had been dissolved the other one had not. It was held that the registrar should
therefore not issue the certificate of marriage because Nderi did not have capacity to marry under
statutory law.
In the matter between EL AND EC the caveator claimed that she had eloped with a man and
therefore he had no capacity to marry another woman. In this case it was found that the formalities
under customary to contract a marriage had not been met and especially the consent of her family
to that marriage had not been given and therefore she could not invalidate the intended marriage
because she did not have a marriage with the man and the caveat was thus removed from the notice
book.

If the registrar is however satisfied with the notice and is satisfied that no caveat has been
registered, then he may issue a certificate of compliance and in that certificate indicate that a
marriage should take place within three months of the notice being given.

The role of the registrar is sometimes performed by church ministers whereby rather than give
notice at the registrar’s office the church minister announces in the church which the parties attend
that the parties intend to get married better known as bans of marriage and this is a recognize and
valid way of publishing the notice to get married..

CELEBRATION OF THE MARRIAGE

The Marriage must be celebrated by a licensed by a licensed person either a registrar of marriages
or a church minister. The marriage should also be celebrated in a licensed place. Again this is the
registrar’s office or in a church though there are certain exceptions. The marriage should take
place between 8 am and 6 p.m. in public and in the presence of two witnesses. However if the
marriage is being celebrated in the registrar’s office it should take place between 8 am and 4 p.m.

Section 30 provides that if the person celebrating that marriage knows of an impediment in respect
to that marriage then he shall not celebrate the marriage.

REGISTRATION

After compliance with all the requirements the parties then register their marriage and they are
issued with a marriage certificate. They are required to sign the marriage certificate in duplicate
and their signatures must be witnessed by two witnesses.

CONSENT
A person shall not marry unless that person has attained the age of eighteen years. According to
section 11(1) e of the marriage act, a union is not a marriage if at the time of the making of the
union the consent of either party has not been freely given.

Section 11 (2) further states that consent is not freely given where the party who purports to give
it-

(i) Is influenced by coercion of fraud;

(b) Is mistaken as to the nature or purport of the, ceremony; or

(c) Is suffering from any mental condition whether permanent or temporary, or is intoxicated, or
is under the influence of drugs, so as -not to appreciate the nature or purport of the ceremony.

In Re Bennet, a 16 year old girl sought an order to dispense with her parental consent to her
intended marriage and the court refused to give that order insisting that consent must be given for
the marriage to proceed.

REASONS AGAINST SAME SEX MARRIAGE

Same sex marriage is the legal union of parties that are of the same gender. Such unions are legal
in countries such as United States while illegal in others such as in Kenya.

In respect to the above information, the law provides for marriage of adults of the opposite sex that
is male and female, which forms part of the requirement to enter into marriage. In regards to our
question, we have been confined to the grounds in matter relating to capacity. Therefore, even the
constitution outlines that both parties must be biologically man and a woman to contract a
marriage. Article 45(2) of the constitution of Kenya states that every adult has the right to marry
a person of the opposite sex based on the free consent of the parties.10 Hence parties must be man
and woman from birth. In the case of Corbett v Corbett, that was basically a heterosexual
marriage, where the respondent was biologically a man at his birth but changed his sex to a woman

10
The Constitution of Kenya 2010
and the petitioner (with whom they had gotten married with) filed a petition for declaration that
the marriage was null and void on the ground that the respondent was a person of the male see or
also on the decree of nullity for non-consummation of the marriage.

In Christendom we are provided with laws to follow. Christians believe God created heaven and
earth11; and on the sixth day, He created them male and female.12In Mohammedan Law, under the
capacity to contract marriage it clearly stated that the parties to the marriage must be a man and a
woman.

In customary Law, there are different forms of marriages that exist. One of them is a monogamous
marriage, which is a marriage between one man and one woman.

There is a requirement for a marriage to valid under capacity; it has to be between man and
woman. The marriage between two people who are not male and female is against the order of
natural law for example, marriage between males or between females.

It is ungodly, it offends God, it goes against His will for He desired human race to fill the earth
and subdue it. It is a sin before Him. This is the most important reason. Whenever one violates the
natural moral order established by God, one sins and offends God. Same-sex “marriage” does just
this. Accordingly, anyone who professes to love God must be opposed to it.

Marriage is not the creature of any State. Rather, it was established by God in Paradise for our first
parents, Adam and Eve. As we read in the Book of Genesis: “God created man in His image and
likeness; He created him; male and female He created them. God blessed them, saying: ‘Be fertile
and multiply; fill the earth and subdue it.13

The same was taught by Our Savior Jesus Christ: “From the beginning of the creation, God made
them male and female. For this cause a man shall leave his father and mother; and shall cleave to
his wife.”14 We are also taught how God punished Sodom and Gomorrah for the sin of
homosexuality: “The Lord burned down Sodom and Gomorrah.15 I believe this was a warning to
us that if we ever try to turn back to such act we will be judged with the same fate. This time it

11
Genesis1:1
12
Genesis 1:27
13
Gen 1:26-28
14
Matthew 19:4 -5, Mark 10:6-7
15
Gen. 19:24-25
won’t rain Sulphur, maybe earthquake, flooding or drought, to bring about purification process.
We should understand that God’s will, it will always prevail regardless of man’s purpose 16, for
we were created by Him (God) and for Him (God)17 This indicates how evil is same sex marriage
better referred to as homosexuality. The consequences it brings are very weighty and of high
magnitude.

It is not a marriage at all. The law does not provide for such a course, as it keeps saying it’s a union
between a man and a woman. In the word of God, any religion or in the traditional customs,
marriage has always being a covenant between a man and a woman which is by its nature ordered
toward the procreation and education of children and the unity and wellbeing of the spouses.

The promoters of same-sex “marriage” propose something entirely different. They propose the
union between two men or two women. This denies the self-evident biological, physiological, and
psychological differences between men and women which find their complementarity in marriage.
It also denies the specific primjuary purpose of marriage: the perpetuation of the human race and
the raising of children. Two entirely different things cannot be considered the same thing.18

Customary views on same-sex marriage in Kenya

Woman-to-woman marriage which existed as early as the eighteenth century still exists in some
societies today and is practiced in Kenya.19 The purpose of these marriages is to get children. This
arises where a woman is barren, and she marries another woman for the sole purpose of having
children and those children become the children of the barren woman who is the husband in the
relationship. Eugene Contran describes woman-to-woman customary unions under the Kikuyu
Customary Law in the following terms, “where a husband dies leaving a childless widow, who is
past child-bearing age, the widow may marry a wife. The widow pays ruracio (Marriage
Consideration) to the family of the woman selected and arranges for a man from her deceased’s
husband age set to have intercourse with her. Children resulting from such intercourse are regarded

16
Proverbs 19:21
17
Colossians 1:16
18
https://tfpstudentaction.org/blog/10-reasons-why-homosexual-marriage-is-harmful-and-must-be-opposed
19
Ambrose Ochuka, ‘The Validity of Woman to Woman Customary Marriages in Kenya today’
<https://www.academia.edu/9387755/VALIDITY_OR_WOMAN_TO_WOMAN_CUSTOMARY_MARRIAGES_I
N_KENYA> accessed 5 November 2019
as children of the widow’s deceased husband.”20 In Luo customs, woman to woman marriages are
defined in the same manner as that under the Kikuyu customs with the slight difference being that
where the widow is left without a male child, and not necessarily without a child at all she could
marry another wife.21

This type of marriage has been presented in court where matters of succession arise and there is
question on whether the wife or wives and children from that marriage are considered as
dependents/heirs of the deceased. In Eunita Anyango Geko &Another v Philip Obungu Orinda,
the applicant in the matter was stated to be a surviving wife of the late Gladis Odinga Orinda. The
applicant stated that they were married in 1970 at Ngege Village Kabika sub-county within Migori
County in a woman-to-woman marriage in accordance with Suba customary laws. It is said that
the deceased paid nine heads of cattle to her parents as dowry. In this matter, the court held that
the 11 children brought about as a result of the woman-to-woman marriage were all beneficially
entitled to the intestate estate of Gladis Odinga. The judge in this matter agreed with Justice
Ojwang in a similar matter22 where he stated that relationships arising from woman-to-woman
marriages can be adopted and read into the Broad framework of the Law of Succession Act.23

The appeal case of Wilfred Mongare Orina v Askah Mocheche Momanyi is a matter that raises the
issue on what constitutes a valid woman-to-woman marriage. The appeal arises from the judgment
and decree in Chief Magistrate’s Court at Kisii made by Hon. Samuel Soita in CMCC No. 55 of
2008. In the suit the respondent who was the plaintiff sought to bar and injunct the defendant from
having the defendant’s mother, Bathsheba Bosibori who had died from being buried on land parcel
Nyaribari Chache/B/B/Boburia/5054 which was registered in the plaintiff’s name. The plaintiff
averred that even though the defendant’s mother had been invited to come and live with the
plaintiff’s husband on the land, no valid marriage had occurred to entitle the deceased (defendant’s
mother) to acquire any interest in the suit property to entitle her to be buried on the land. The
plaintiff had contended that the defendant’s mother had a husband to whom she was married, and
that marriage subsisted, and she therefore ought to be buried in her real husband’s land. The
respondent in the lower court sought injunctive and declaratory orders that the defendant be

20
Eugene Contran, The Law of Marriage and Divorce (vol. 1, Sweet & Maxwell 1968)
21
Eunita Anyango Geko & Another v Philip Obungu Orinda [2013] eKLR
22
Monica Jesang Katam v Jackson Chepkwony & another [2011] eKLR
23
Law of Succession Act, s 29
restrained from burying the mother in the suit land and that she (the plaintiff) was the lawful owner
of the suit property. In his defense, the defendant pleaded that his late mother was duly married
and that there had been a woman-to-woman marriage as practiced in Abagusii Customary Law
rites and on that account contended that the deceased and her children were entitled to a portion of
the suit land as beneficiaries. The trial magistrate after hearing the parties upheld the claim by the
plaintiff/respondent and held that there was no valid woman-to-woman marriage between the
defendant’s deceased mother and Teresia Nyabate. The trial magistrate restrained burial of the
defendant’s deceased mother on the suit property and declared the plaintiff the lawful owner of the
suit property. This case was dismissed as held it was found to have no merit. The judge also found
that there was no valid woman-to-woman marriage.24

The requirements of a valid woman-to-woman marriage in most customs in Kenya, raised from
the Appeal case and other cases25 include;

a) The marrying woman must be childless. This is because the sole purpose of such relations
is to bear children for the woman who is barren and in an already existing marriage with
the husband. The necessity of childlessness is illustrated in the case of Re the Estate of
Priscilla Nduta Gitwande (Deceased). The court revoked the grant of representation made
to the Administratix and the objector (biological daughter of deceased) was declared the
sole heir to the estate of the deceased. The court held that the Administratix and the
deceased did not have a valid woman-to-woman marriage under customary law as the
deceased was not childless.26

b) Dowry must be paid. As any other customary marriage between a man and a woman is
done so is a woman-to-woman marriage done. The woman who seeks out another woman
to bear children for her takes on the role of the husband/man and pays the dowry. This
marriage consideration for Kikuyu customs is known as ruracio and for Luo customs is
known as dho I Kheny27.

24
Wilfred Mongare Orina v Askah Mocheche Momanyi [2019] eKLR
25
Eliud Maina Mwangi v Margaret Wanjiru Gachangi [2013] eKLR
26
Re the Estate of Priscilla Nduta Gitwande (Deceased) [2006] eKLR
27
Eugene Contran, The Law of Marriage and Divorce (vol. 1, Sweet & Maxwell 1968)
 c) The husband to the marrying woman must have been deceased. It is considered that where
the husband to a barren woman is alive, he will take up another wife to solve the issue of
childlessness in the marriage. However, where he dies, and no children had been born it is
the responsibility of the wife to take up the duty of continuity of name the deceased
husband.28

d) The customs applied to validate the union must not be repugnant to justice and morality.29
Customary Law that is found to be inconsistent with the Constitution of Kenya 2010 is
considered to be void to the extent of its inconsistency.30 In answering the question whether
or not woman-to-woman customary marriages are repugnant to justice and morality, Judge
K.H. Rawal stated, “is the marriage under consideration repugnant to justice or morality?
And even if it is not so, whether the deceased was a childless widow and married the
Administratix to continue the progeny of her husband? In my humble view, if the marriage
has no sexual connotation between the same sex and was contracted for social purposes as
is evident from the observations of the custom in the book of Cotran, it may not be
repugnant to morality.”31

From his statement, it is evident that the validity of customary woman-to-woman marriages in
Kenya is majorly based on their sole purpose of the union, which is child-bearing. This form of
same-sex marriage is not considered evil and is encouraged to allow for the progeny of a
deceased’s husband who did not have any. The tolerance of woman-to-woman marriage can be
attributed to the view that African culture had of children. They were seen as social security and
economic assets and parents took pride in having many of them. Childlessness was seen as a curse
and the failure to give birth to male children was blamed on women, this explains why one of the
validities of woman-to-woman marriage is that the husband to the marrying woman must have
been deceased. Childlessness was not blamed on men but on women.

Legal views on same-sex marriage in Kenya

28
Ambrose Ochuka, ‘The Validity of Woman to Woman Customary Marriages in Kenya today’
<https://www.academia.edu/9387755/VALIDITY_OR_WOMAN_TO_WOMAN_CUSTOMARY_MARRIAGES_I
N_KENYA> accessed 5 November 2019
29
Judicature Act, s 3(2)
30
Constitution of Kenya 2010, article 2(4)
31
Re the Estate of Priscilla Nduta Gitwande (Deceased) [2006] eKLR
The Government of Kenya has been very clear on their view of same-sex relationships through the
drafters of the laws such as in the Penal Code. Section 162 (a) and (c) of the Penal Code provide
that any person who has ‘carnal knowledge against the order of nature’ or permits a person to have
‘carnal knowledge against the order of nature’ against them has committed a crime. ‘Carnal
knowledge against the order of nature’ is any sexual activity between two or more persons that
does not involve the penis penetrating the vagina. This therefore includes but is not limited to anal
sex, oral sex and anilingus (sexual stimulation of the anus by the tongue or mouth). The provisions
criminalize any sexual activities that fit the definition of ‘carnal knowledge against the order of
nature’ for same-sex couples as well as opposite couples.32 If a person is found guilty for a crime
under section 162(a) and (c) of the Penal Code that person is liable to a maximum sentence of 14
years in prison. Section 165 states that any person who commits an act of ‘gross indecency with
any male person has committed a crime. Gross indecency is any sexual activity between two men
that does not involve penetration between two men whether committed in private or public.33 The
Constitution of Kenya 2010 also highlights the country’s legal views by guaranteeing the right of
a person to marry another of the opposite sex based on their free consent.34 There are no provision
for persons of the same-sex.

The case of Erick Gitari v the Attorney General and another (2016) is a famous case in the trial to
change the legal views of same sex relationships in Kenya.35 The High Court dismissed the petition
seeking to decriminalize same sex intimacy in Kenya. The case challenged Section 162 (a), (c) and
165 of the Penal Code of Kenya which outlaw carnal knowledge against the order of nature and
indecent acts between males whether in public or private. During the ruling, the court noted that
the petitioners failed to prove beyond doubt that the clauses were used to discriminate against the
sexual and gender minorities. Though unsuccessful with this petition, the High Court highlighted
coherently the issues and views of same-sex relationships in Kenya stating,

“…on the subject of delivery of public services, I am aware that the Kenyan Government has
reiterated that it does not support discrimination against the LGBTIQ community, same sex acts,
by virtue of the national law such as the Penal Code, CAP 63 are still considered as offences and

32
Penal Code, s 162
33
Penal Code, s 165
34
Constitution of Kenya, article 45 (2)
35
High Court Petition Number 150 0f 2016
as acts that are contrary to culture and the society’s morals. There is however huge debate in the
public domain with civil society and others arguing that Kenya’s laws that discriminate against
LGBTIQ persons and their intimate activities based on the grounds of their sexual orientation are
unconstitutional are therefore void. The basis of this has been the evolution of thinking around
human rights, so that human rights are now considered to include LGBTIQ rights and that human
rights cannot be implemented selectively. But others seem to reason that this kind of thinking is
based on opportunism by the proponents of human rights for the LGBTIQ community and
therefore has no place in law. These views, behind which strong convictions indubitably lie, are
varied. A lot of them are informed by the reality that the LGBTIQ community is hardly a popular
or accepted group in the Kenyan society. This in turn makes the LGBTIQ community subject to
physical and sexual harassment by the police and members of the public, extortion and blackmail
etc. Apart from their weightiness, which is evident in the above discussion, I note that the identified
issues have not been determined by any other Court in Kenya as this unique aspect of LGBTIQ
issues . . .”.36 There is conflict between upholding universal human rights law in Kenya which
should be free from discrimination, uphold equality etc. and holding on to the moral values and
religious beliefs and views of same-sex relationships in Kenya. The recognition of same-sex
marriages in Kenya would require the decriminalization of same-sex relations and the recognition
of the LGBTIQ community in Kenya.

Due to the international human rights obligations and its own obligations set out in the Bill of
Rights, the government seems to progressively attain the rights of equality and non-discrimination
for the LGBTIQ Community.37 This can be illustrated in the case of Eric Gitaru v Non-
governmental Organization Co-ordination Board and 4 others.38 The petitioner attempted to
register an NGO seeking to advance the human rights of the LGBTIQ Community in Kenya. The
Board rejected the appeal due to the NGO’s name including for including references to Gays and
Lesbians whose conduct in the country is criminalized. The Board has the authority to reject an
NGO whose name is in “the opinion of the Director repugnant to or inconsistent with any law or
is otherwise undesirable”. Gitari filed suit against the Board for declaratory relief, arguing that the

36
Eric Gitari v the Attorney General and another [2016] eKLR paras 28-31
37
Constitution of Kenya 2010, article 2 (5), (6)
38
Eric Gitaru v Non-governmental Organizations Co-ordination Board & 4 others [2015] eKLR
failure to recognize their rights to assemble was unconstitutional39 and requested for an order of
mandamus to force the Board to register the NGO. He was successful with his petition.

On the Board’s appeal in 201940 the matter was dismissed by the Court of Appeal. Justice Waki
who began his judgement by quoting John 8:7 which says, “when they kept questioning him, he
straightened up and said to them, “let anyone of you who is not without sin be the first to throw a
stone at her” finished by giving an Obiter Dicta relevant to the question of views of same-sex
marriage in Kenya. He stated,

“The issue of persons in our society who answer to the description lesbian, bisexual, gay,
transsexual, intersex and queer (LBGTIQ) is rarely discussed in public. The reasons for such
coyness vary. But it cannot be doubted that it is an emotive issue. The extensive and passionate
submissions made in this matter before the High Court, and before us, is testimony to the deep-
rooted emotions that the issue can easily arouse. It is possible for the country to close its eyes and
hearts and pretend that it has no significant share of the people described as LGBTIQ. But that
would be living in denial. We are no longer a closed society, but fast moving towards the ‘open
and democratic society based on human dignity, equality, equity, and freedom’ which our
Constitution envisages. We must therefore, as a nation, ‘look at ourselves in the mirror. It will
then become apparent that the time has come for the peoples’ representatives in Parliament, the
Executive, County Assemblies, Religious Organizations, the media, and the general populace, to
engage in honest and open discussions over these human beings. In the meantime, I will not “…
be the first to throw a stone at her [LGBTIQ]".”

In November 2011, the United Nations High Commissioner for Human Rights issued a report at
the request of the General Assembly. In the report, the Commissioner asserted that the fact that
someone is lesbian, gay, bisexual or transgender does not limit their entitlement to enjoy the full
range of human rights and set outs obligations that states have towards LGBT citizens under
international human rights law. Additionally, the Commissioner makes it clear that the
criminalization of private consensual homosexual acts violates an individual’s right to privacy and
to non-discrimination and constitutes a breach of international human rights law.41 The provisions

39
Constitution of Kenya 2010, article 36
40
Non—governmental Organizations Coordination Board v EG & 5 others [2019] eKLR
41
U.N. High Commissioner for Human Rights, Discriminatory Laws and Practices and Acts of Violence Against
Individuals Based on Their Sexual Orientation and Gender Identity (2011)
of application of international rules and ratification of treaties by the Constitution of Kenya is a
great way of welcoming these progressive ‘evil’ views on issues such as same-sex marriage in
Kenya.

The legal views of same-sex marriage in Kenya are greatly influenced by our moral and religious
views towards the LGBTIQ Community. International Human Rights Law obligations might
however change the legal views especially in the application of human rights law in issues facing
the Community in Kenyan Courts.

SCIENCE-Based arguments against same-sex "marriage":

1. Children hunger for their biological parents.

Homosexual couples using in vitro fertilization (IVF) or surrogate mothers deliberately create a
class of children who will live apart from their mother or father. Yale Child Study Center
psychiatrist Kyle Pruett reports that children of IVF often ask their single or lesbian mothers
about their fathers, asking their mothers questions like the following:"Mommy, what did you do
with my daddy?" "Can I write him a letter?" "Has he ever seen me?" "Didn't you like him? Didn't
he like me?" Elizabeth Marquardt reports that children of divorce often report similar feelings
about their non-custodial parent, usually the father.42

2. Children need fathers.

If same-sex civil marriage becomes common, most same-sex couples with children would be
lesbian couples. This would mean that we would have yet more children being raised apart from
fathers. Among other things, we know that fathers excel in reducing antisocial behavior and
delinquency in boys and sexual activity in girls.43

What is fascinating is that fathers exercise a unique social and biological influence on their
children. For instance, a recent study of father absence on girls found that girls who grew up
apart from their biological father were much more likely to experience early puberty and a teen
pregnancy than girls who spent their entire childhood in an intact family. This study, along with

42
Elizabeth Marquardt, The Moral and Spiritual Lives of Children of Divorce.
43
Ellis, Bruce J., et al., "Does Father Absence Place Daughters at Special Risk for Early Sexual
Activity and Teenage Pregnancy?" Child Development, 74:801-821.
David Popenoe's work, suggests that a father's pheromones influence the biological development
of his daughter, that a strong marriage provides a model for girls of what to look for in a man,
and gives them the confidence to resist the sexual entreaties of their boyfriends.44

3. Children need mothers.

Although homosexual men are less likely to have children than lesbians, homosexual men are
and will be raising children. There will be even more if homosexual civil marriage is legalized.
These households deny children a mother. Among other things, mothers excel in providing
children with emotional security and in reading the physical and emotional cues of infants.
Obviously, they also give their daughters unique counsel as they confront the physical,
emotional, and social challenges associated with puberty and adolescence. Stanford psychologist
Eleanor MacCoby summarizes much of this literature in her book, The Two Sexes.45

4. Evidence on parenting by same-sex couples is inadequate.

A number of leading professional associations have asserted that there are "no differences"
between children raised by homosexuals and those raised by heterosexuals. But the research in
this area is quite preliminary; most of the studies are done by advocates and most suffer from
serious methodological problems. Sociologist Steven Nock of the University of Virginia, who is
agnostic on the issue of same-sex civil marriage, offered this review of the literature on gay
parenting as an expert witness for a Canadian court considering legalization of same-sex civil
marriage:

Through this analysis I draw my conclusions that 1) all of the articles I reviewed contained at
least one fatal flaw of design or execution; and 2) not a single one of those studies was conducted
according to general accepted standards of scientific research.

44
David Popenoe, Life Without Father (Boston: Harvard University Press, 1999).
45
Eleanor MacCoby, The Two Sexes: Growing Up Apart, Coming Together (Boston: Harvard,
1998).
This is not exactly the kind of social scientific evidence you would want to launch a major
family experiment.

Steven Nock, affidavit to the Ontario Superior Court of Justice regarding Hedy Halpern et al.
University of Virginia Sociology Department (2001).

5. Evidence suggests children raised by homosexuals are more likely to experience gender
and sexual disorders.

Although the evidence on child outcomes is sketchy, it does suggest that children raised by
lesbians or homosexual men are more likely to experience gender and sexual disorders. Judith
Stacey-- a sociologist and an advocate for same-sex civil marriage--reviewed the literature on
child outcomes and found the following: "lesbian parenting may free daughters and sons from a
broad but uneven range of traditional gender prescriptions." Her conclusion here is based on
studies that show that sons of lesbians are less masculine and that daughters of lesbians are more
masculine.

She also found that a "significantly greater proportion of young adult children raised by lesbian
mothers than those raised by heterosexual mothers ... reported having a homoerotic
relationship." Stacey also observes that children of lesbians are more likely to report homoerotic
attractions.

Her review must be viewed judiciously, given the methodological flaws detailed by Professor
Nock in the literature as a whole. Nevertheless, theses studies give some credence to
conservative concerns about the effects of homosexual parenting.

Judith Stacey and Timothy Biblarz, "

6. Same-sex "marriage" would undercut the norm of sexual fidelity within marriage.

One of the biggest threats that same-sex "marriage" poses to marriage is that it would probably
undercut the norm of sexual fidelity in marriage. In the first edition of his book in defense of
same-sex marriage, Virtually Normal, homosexual commentator Andrew Sullivan wrote: "There
is more likely to be greater understanding of the need for extramarital outlets between two men
than between a man and a woman." Of course, this line of thinking--were it incorporated into
marriage and telegraphed to the public in sitcoms, magazines, and other mass media--would do
enormous harm to the norm of sexual fidelity in marriage.46

One recent study of civil unions and marriages in Vermont suggests this is a very real concern.
More than 79 percent of heterosexual married men and women, along with lesbians in civil
unions, reported that they strongly valued sexual fidelity. Only about 50 percent of gay men in
civil unions valued sexual fidelity.47

7. Same-sex "marriage" would further isolate marriage from its procreative purpose.

Traditionally, marriage and procreation have been tightly connected to one another. Indeed, from
a sociological perspective, the primary purpose that marriage serves is to secure a mother and
father for each child who is born into a society.48 Now, however, many Westerners see marriage
in primarily emotional terms.

Among other things, the danger with this mentality is that it fosters an anti-natalist mindset that
fuels population decline, which in turn puts tremendous social, political, and economic strains on
the larger society. Same-sex marriage would only further undercut the procreative norm long
associated with marriage insofar as it establishes that there is no necessary link between
procreation and marriage.49

This was spelled out in the Goodridge decision in Massachusetts, where the majority opinion
dismissed the procreative meaning of marriage. It is no accident that the countries that have
legalized or are considering legalizing same-sex marriage have some of the lowest fertility rates
in the world. For instance, the Netherlands, Sweden, and Canada have birthrates that hover
around 1.6 children per woman--well below the replacement fertility rate of 2.1.

8. Same-sex "marriage" would further diminish the expectation of paternal commitment.

46
Esther Rothblum and Sondra Solomon, Civil Unions in the State of Vermont: A Report on the
First Year. University of Vermont Department of Psychology, 2003.
47
David McWhirter and Andrew Mattison, The Male Couple (Prentice Hall, 1984) 252.
48
For national fertility rates, see: http://www.cia.gov/cia/publications/factbook/geos/sw.html
49
For more on the growing disconnect between marriage and procreation,
see: http://marriage.rutgers.edu/Publications/SOOU/SOOU2003.pdf
The divorce and sexual revolutions of the last four decades have seriously undercut the norm that
couples should get and stay married if they intend to have children, are expecting a child, or
already have children. Political scientist James Q. Wilson reports that the introduction of no-fault
divorce further destabilized marriage by weakening the legal and cultural meaning of the
marriage contract. George Akerlof, a Nobel laureate and an economist, found that the widespread
availability of contraception and abortion in the 1960s and 1970s, and the sexual revolution they
enabled, made it easier for men to abandon women they got pregnant, since they could always
blame their girlfriends for not using contraception or procuring an abortion.

It is plausible to suspect that legal recognition of homosexual civil marriage would have similar
consequences for the institution of marriage; that is, it would further destabilize the norm that
adults should sacrifice to get and stay married for the sake of their children. Why? Same-sex
civil marriage would institutionalize the idea that children do not need both their mother and
their father.50

This would be particularly important for men, who are more likely to abandon their children.
Homosexual civil marriage would make it even easier than it already is for men to rationalize
their abandonment of their children. After all, they could tell themselves, our society, which
affirms lesbian couples raising children, believes that children do not need a father. So, they
might tell themselves, I do not need to marry or stay married to the mother of my children.51

9. Marriages thrive when spouses specialize in gender-typical roles.

If same-sex civil marriage is institutionalized, our society would take yet another step down the
road of de-gendering marriage. There would be more use of gender-neutral language like
"partners" and--more importantly--more social and cultural pressures to neuter our thinking and
our behaviors in marriage.52

50
James Q. Wilson, The Marriage Problem. (Perennial, 2003) 175-177.
51
George A. Akerlof, Janet L. Yellen, and Michael L. Katz, "An Analysis of Out-of-Wedlock
Childbearing in the United States." Quarterly Journal of Economics CXI: 277-317.
52
E. Mavis Hetherington and John Kelly, For Better or For Worse. (W.W. Norton and Co.,
2002) 31.
But marriages typically thrive when spouses specialize in gender-typical ways and are attentive
to the gendered needs and aspirations of their husband or wife. For instance, women are happier
when their husband earns the lion's share of the household income.53 Likewise, couples are less
likely to divorce when the wife concentrates on childrearing and the husband concentrates on
breadwinning, as University of Virginia psychologist Mavis Hetherington admits.

Criteria disregarding Same Sex Marriage

Firstly, is the consent to marry. This is further strengthened by the statement that marriage is a
voluntary union between two people. A marriage can be voidable if either party can prove unsound
mind, duress or mistake. Furthermore at the time of marriage either of the party may have been
suffering from a venereal disease and transferred it to said spouse. In Dicey and Morris’ Conflict
of Rules, rule seventy-one, “No marriage is valid if by the law of either party’s domicile one party
does not consent to marry another.”54

Secondly is the capacity to marry. A monogamously married individual has no capacity to

marry unless the first one has been dissolved. The capacity to marry is governed by the individuals’
antinaptual domicile. Moreover, in Kenyan Law, same sex persons lack the capacity to contract a
marriage. Consequently supported by the Penal Code Section one hundred and sixty five which
states that “Any male person who, whether in public or private, commits any act of gross indecency
with another male person, or procures another male person to commit any act of gross indecency
with him, or attempts to procure the commission of any such act by any male person with himself
or with another male person, whether in public or private, is guilty of a felony and is liable to
imprisonment for five years.”55 However, same sex unions are beginning to be registered in a
number of growing countries such as Portugal, Netherlands, the United States, and Spain among
others. Same sex marriages are governed by the lexi loci celebrationis law, whereby the appropriate
domestic law is either for or against the marriage.

Thirdly are the formalities of marriage. These are regarded with matters as to whether the
marriage is civil, customary or religious. It is sufficient to comply with the formalities considered

53
Steven Rhoads, Taking Sex Differences Seriously (Encounter Books, 2004).
54
Dicey and Morris, Conflict of Rules, Rule 71.
55
Penal Code CAP 63, Laws of Kenya.
under the chosen law to officiate the marriage. Lord Dunern in Berthiaume vs. Dastous 1930 states
that, “If the so called marriage is no marriage in the place where it is celebrated there is no marriage
anywhere, although the ceremony, if conducted in the place of the party’s domicile, could be
considered a good marriage.”

A large and growing body of scientific evidence indicates that the intact, married family is best
for children. In particular, the work of scholars David Popenoe, Linda Waite, Maggie Gallagher,
Sara McLanahan, David Blankenhorn, Paul Amato, and Alan Booth has contributed to this
conclusion.

This statement from Sara McLanahan, a sociologist at Princeton University, is representative:

If we were asked to design a system for making sure that children's basic needs were met, we
would probably come up with something quite similar to the two-parent ideal. Such a design, in
theory, would not only ensure that children had access to the time and money of two adults, it
also would provide a system of checks and balances that promoted quality parenting. The fact
that both parents have a biological connection to the child would increase the likelihood that the
parents would identify with the child and be willing to sacrifice for that child, and it would
reduce the likelihood that either parent would abuse the child.56

56
Sara McLanahan and Gary Sandefur, Growing Up with a Single Parent: What Hurts, What
Helps (Boston: Harvard University Press, 1994)
REFERENCES

Cases

(1886) L.R.I.P &D.130

(1868) L.R.3H.L55,82

Brook v Brook (1861)9 H.L.C 193.

Eunita Anyango Geko & Another v Philip Obungu Orinda [2013] eKLR

Monica Jesang Katam v Jackson Chepkwony & another [2011] eKLR

Wilfred Mongare Orina v Askah Mocheche Momanyi [2019] eKLR

Eliud Maina Mwangi v Margaret Wanjiru Gachangi [2013] eKLR

Re the Estate of Priscilla Nduta Gitwande (Deceased) [2006] eKLR

High Court of Kenya Petition Number 150 of 2016

Eric Gitari v the Attorney General and another [2016] eKLR paras 28-31

Eric Gitaru v Non-governmental Organizations Co-ordination Board & 4 others [2015] eKLR

Non—governmental Organizations Coordination Board v EG & 5 others [2019] eKLR

Journals

Ambrose Ochuka, ‘The Validity of Woman to Woman Customary Marriages in Kenya today’
<https://www.academia.edu/9387755/VALIDITY_OR_WOMAN_TO_WOMAN_CUSTOMAR
Y_MARRIAGES_IN_KENYA> accessed 5 November 2019

Definition of marriage, http://

www.jstor.org/stable/1094962?sid=21105736757381&uid=4&uid=3738400&udi=2. Assessed
8/11/2019.

George A. Akerlof, Janet L. Yellen, and Michael L. Katz, "An Analysis of Out-of-Wedlock
Childbearing in the United States." Quarterly Journal of Economics CXI: 277-317.

James Q. Wilson, The Marriage Problem. (Perennial, 2003) 175-177.

Ellis, Bruce J., et al., "Does Father Absence Place Daughters at Special Risk for Early Sexual
Activity and Teenage Pregnancy?" Child Development, 74:801-821.

David Popenoe, Life Without Father (Boston: Harvard University Press, 1999).

U.N. High Commissioner for Human Rights, Discriminatory Laws and Practices and Acts of
Violence Against Individuals Based on Their Sexual Orientation and Gender Identity (2011)

Eleanor MacCoby, The Two Sexes: Growing Up Apart, Coming Together (Boston: Harvard,
1998).

Esther Rothblum and Sondra Solomon, Civil Unions in the State of Vermont: A Report on the
First Year. University of Vermont Department of Psychology, 2003.

Kenyan Statute

Constitution of Kenya 2010

Constitution of Kenya 2012

Judicature Act, s 3(2)

Law of Succession Act 2012, CAP 160 s 29

Penal Code, s 162

Penal Code, s 165

Websites

Definition of marriage, http://

www.jstor.org/stable/1094962?sid=21105736757381&uid=4&uid=3738400&udi=2

For more on the growing disconnect between marriage and procreation,

see: http://marriage.rutgers.edu/Publications/SOOU/SOOU2003.pdf

For national fertility rates, see: http://www.cia.gov/cia/publications/factbook/geos/sw.html

The origins of marriage. (2019). Retrieved 9 November 2019, from

https://theweek.com/articles/528746/origins-marriage
Stritof, S. (2019). A Brief History of Marriage and How It Has Evolved. Retrieved 9 November
2019, from https://www.thespruce.com/history-of-marriage-2300616

https://tfpstudentaction.org/blog/10-reasons-why-homosexual-marriage-is-harmful-and-must-be-
opposed

Books

Bible Verses; Genesis1:1, 27, 28. 19:24-25. Mark 10:6-7, Proverbs 19:21, Colossians 1:16

David McWhirter and Andrew Mattison, The Male Couple (Prentice Hall, 1984) 252.

Dicey and Morris, Conflict of Rules, Rule 71.

E. Mavis Hetherington and John Kelly, For Better or For Worse. (W.W. Norton and Co., 2002)
31.

Elizabeth Marquardt, The Moral and Spiritual Lives of Children of Divorce.

Eugene Contran, The Law of Marriage and Divorce (vol. 1, Sweet & Maxwell 1968)

Sara McLanahan and Gary Sandefur, Growing Up with a Single Parent: What Hurts, What
Helps (Boston: Harvard University Press, 1994)

Steven Rhoads, Taking Sex Differences Seriously (Encounter Books, 2004).