The issue is whether one can change from one system of family law to another e.g. can one change from English Statutory Law to Customary Law or vice versa?  Theoretically it looks possible because under S. 76 of the Constitution it is provided that freedom of religious belief is protected and guaranteed and following from this constitutional guarantee it follows that the moment you change from your religion, your family law will automatically change as ones family law is determined by ones religious beliefs.  However it has not been that simple and the position is that while one can easily change from customary, Hindu or Islamic family law to statutory law, you have to have changed your religion.  It is not easy to convert from statutory to Islamic or Customary just by the act of change of faith.  Statutory law still insists on a number of formalities before one can change from one system to another.

English law started with a situation of non-tolerance of other family law systems other than their own family law system and you find cases like

Hyde v. Hyde

This case concerned the marriage in 1858 of two Mormons in Salt Lake City, and marriage was defined in that Ruling as marriage according to Christendom was the ‘voluntary union for life of one man and one woman to the exclusion of all others’.

Re Bethel [1888]

In this case an English man married a Botswana Woman under Botswana customary law and they had a child, the husband died and left property in England.  The issue was whether this daughter was legitimate and could therefore inherit the property in England and the court held that that marriage was not recognized under English law because it was potentially polygamous and the daughter was therefore not legitimate and could not inherit the property.  And they quoted Hyde’s case that marriage was the voluntary union for life of one man and one woman to the exclusion of all others.

Ex Parte Mir- Anwarrudin (1917)

Had a similar ruling with Re Bethel

The attitude of the English courts not recognizing any other law was also found in Kenya in colonial times Re Amkeyo  the courts termed the wives in those marriages as concubines and refused to recognize them as wives,

From 1940 the English Courts started to change their attitude and started recognizing other family law systems for purposes of entertaining matrimonial causes arising from those systems.  Note that this recognition was not for purposes of validating them but for purposes of facilitating the change from those systems to statutory family law systems so that they would recognize another family law system for purposes of invalidating it or purposes of facilitating change from that system to the English law system.

During 1940s up through to the present day, courts now do recognize other family law systems and recognize that you can change from one system to another

Bandail v. Bandail

A Hindu polygamous marriage was recognized for purposes of nullifying in England.

Sowa v. Sowa

In this case, a polygamous marriage was celebrated in Ghana where the parties were domiciled.  Prior to the ceremony the husband promised the wife that he would go through a later ceremony which, according to the law of Ghana, would convert the union into a monogamous marriage.  He failed to carry out his promise.  It was held that, despite his promise and despite the fact that the husband had not taken an additional wife, the marriage continued to be regarded as polygamous.

The English courts also made rulings as to what acts could change a polygamous marriage to a monogamous marriage.  The first act was a change of religious belief of faith which then affected the parties legal status was the first act to be recognized.


Sinha Peearage Case [1946] 1 All E.R. 263 P.C

The parties changed their Hindu Sect from one practicing polygamous marriage to one practicing monogamous marriage.  It was held that changing their religious beliefs changed their marital status and the polygamous marriage was changed to a monogamous one.

A.G Of Ceylon v Reid [1965] A.C. 720

Local Legislation is one recognized way with the aim of changing the character of ones family law system.


Parkasho v. Singh [1967] 1 All E.R.

A statute converted Sikh marriage from being polygamous marriage to monogamous marriage and it was held that it was out of these religion changes that family law of Sikhs was changed.  The legislation must be full legislation that deals with all marriages in that category.

Under our own Christian Marriages Act it is your religion that determines whether you can change your category of marriage.

Where there is a second ceremony of marriage that is designed to change one status from polygamous to monogamous union.  This is the kind of situation which would obtain under the African Marriage and Divorce Act

Ohochuku V. Ohochuku [1960] 1 All E.R. 253

The parties had been married under Nigerian Customary Law and then underwent a Christian Marriage. Under English law which created a monogamous marriage


Ali v. Ali

This case provides authority for the proposition that, if a husband changes his domicile from a country that permits polygamy to one which does not, this change of domicile renders the marriage monogamous.

Change of Domicile

Domicile is essentially ones permanent home or the place that one intends to set up their permanent residence and in this case the parties had contracted a polygamous marriage in India but the marriage had remained a de facto monogamous marriage.  They then changed their Domicile to England which changed their marriage into a dejure monogamous marriage.

The English accepted in two phases gradually recognizing other family law systems for the purposes of nullifying those unions or converting them into English systems, but never vice versa.

The Kenyan situation is very much like the English one. Kenya statutes do provide for the change from one system to the other.  Section 11(b) of the Marriage Act implies that one can change their customary or Islamic law marriage into a Christian marriage.  When you apply for a marriage certificate there must be an Affidavit stating that neither party is married under customary or Islamic law to any other person they intend to marry

Section 9 of the African Christian Marriage and Divorce Act provided for parties who are married under customary law to marry under the Act if they wish to do so and there are a number of parties that

The Islamic law under section 5 (6) also in any way does provide of conversion of customary law marriages to Islamic marriages, though not directly.  The section makes it an offence for one to convert to Islamic marriage from other marriages unless there is a divorce.

In our situation one can change ones family law

Case Law

Ayoob v.  (1968) E.A. 72

Estate of Ruenji
Re Ogolla’s Estate

In Ayoob case the parties were Muslims and they got married under the Marriage Act as the statutory law marriage.  On the same day they were married under Muslim Law.  Subsequently the husband divorced the wife by way of talak a Muslim form of divorce. He then went to court seeking a declaration that his marriage had been lawfully resolved. It was held that the husband by performing the talak was able to divorce the Muslim marriage but if he wanted to divorce the statutory law marriage he would have to file for divorce under the Matrimonial Causes Act.  The court is saying that the act of contract of a Muslim marriage after the statutory law marriage does not convert the statutory law marriage so that the statutory law marriage was still persisting and had to be divorced by following court procedures

Ruenji and Ogola – facts are similar

Estate of Ruenji

The deceased a Kikuyu by tribe and domiciled in Kenya, died leaving a gross estate of about 53,000 shillings.  It is not disputed that he was married to one Loise Murugi Mbiri under the African Christian Marriages Act in 1941.  It is also alleged that the deceased subsequently married two other ladies, namely Mary Waithira and Mary Wanjohi according to the Kikuyu customary law and had children by them.  The public trustee and the lawyer for Loise submitted that the first question that must be decided is whether in view of the deceased’s first marriage under the African Christian Marriage and Divorce Act the deceased could enter into one or more other lawful marriages.  Marriage under the African Christian Marriage and Divorce Act is meant to be a Christian marriage and that parties become legally bound to each other as man and wife so long as both of them shall live and their marriage cannot be dissolved during their lifetime except by a valid judgment of divorce and that if either of them (before the death of the other) should illegally contract another marriage while their marriage remained undissolved, the offender would be guilty of bigamy, and liable to punishment for that offence.  It is apparent that the deceased had not divorced Loise during his lifetime, and that, consequently, any subsequent marriage would be illegal.

In both Ruenji and Ogola a man married his first wife under statutory law and then contracted second marriage under customary law.   The man died and the question arose whether both wives could benefit from the husband Estate.  The court held that the second wives were not recognized under Statutory law because the man did not have capacity to contract a second marriage and they therefore they and their children could not inherit from the man’s estate.  The court is saying that the man could not convert from a statutory way of life that he had committed himself to.  The second wives were not recognized.

These two cases were instrumental in leading to Succession Law and in our Law of Succession Act whilst even under customary law wives can inherit irrespective of the fact that the husbands could have married previously under statutory law.

The current bill to amend the constitution addresses this issue by giving equal recognition to all the systems under the constitution.  Family law system will be protected and once one changes their religion as a result that change will be recognized and guaranteed.  What is remaining is to recognize and bring all the system under one system and give them constitutional protection.

Other ways in which family law might be changed

1.                  Where one marries someone practicing another family law system:  for example if a person practicing a customary law system marries a person practicing Islamic law normally the implication is that that marriage will bestow upon the parties a new family law system and normally the operating law system will be that of the man. Ours is a patriarchal society.

2.                  one can also acquire a new family law system by change of Domicile 

Ali bhai   a family was allowed to change their family law system after settling at the Kenya Coast. From Hindu to Islam.

Change of Family Law in other jurisdiction - cited under conflict of marriage laws

Manjany v Ndongo (1967) JAL 13

Mokhotu  v. Manyaapelo - Lesotho
Onwudinjo v. Onwudinjo [1962] J.A.L 49-52 - Nigerian
Bakari v.  Kichunda (1973) L.R.T Tanzania
Rattansey v. Rattansey (1960) E.A. - Tanzania

These cases dealt with change of family law system,

These cases - most of commonwealth jurisdiction have basically adopted the Kenya position that is, you cannot change ones family law system just by changing ones religion especially if it is from statutory law system to other family law system.

Onwundinjo v. Onwundinjo was a succession matter, the other wife could not inherit because the husband had contracted an earlier statutory law marriage.

In Manyaapelo a second customary law marriage between the parties was declared null and void because at the time of contracting the husband had not validly divorced the first wife who he had married under statutory law.

In the Gambia in Manjany vs. Ndongo the courts recognized you could change from statutory to Islamic law marriage by contracting an Islamic marriage ceremony after the statutory marriage ceremony

In Ayoob the facts are similar to Manjany but the courts ruled differently. 

In Ayoob, the appellant a Sunni Muslim, and the respondent, a Shiite Muslim, were married in accordance with the Marriage Act (Cap 150).  A marriage under this Act is monogamous.  Subsequently they went through a ceremony of marriage according to Mohammedan Law, the respondent by then having adopted the doctrines of her husband’s sect.  The appellant later purported to divorce the respondent by pronouncing talak.  The Appellant then, by petition to the High Court, sought a declaration that his marriage to the respondent was lawfully dissolved.  The learned judge held that a marriage under the Marriage Act was not a Mohammedan marriage and that it could only be dissolved during the joint lifetime of the spouses by a valid judgment of divorce pronounced under the Matrimonial Causes Act (Cap 152) and he accordingly dismissed the petition.

In Rattansey the facts were similar but the courts held that the talak terminated the statutory law marriage earlier contracted.

Gambia and Tanzania – these can be distinguished from other commonwealth countries in the sense that they have made an attempt to recognize their own family laws and Islamic Law and Statutory Law in Gambia are equal.


The conflicts that arise are in 3 main respects

1.                  Conflict between statutory and other systems of family law because of the reluctance by the court to recognize that one change from statutory to other family laws.  E.g. parties will get married under statutory law and continue to live their customary way of life and in the process contract customary law marriages and the issue is to what extent will that customary law apply to people married under statutory law?

There are situations such as Re Ogola arising or stories of people having gotten married under statutory law and then getting married under customary law and later to realize that they have committed an offence.

2.                  Different Customary Law systems especially African customary law system.  This problem is exacerbated by the fact that the Kenyan population is becoming urbanized and when we say that the Kenya customary law applies, which is the customary law and especially for people who live in urban areas and do not practice any customary law.

3.                  Statutes – two examples will be between the Marriage Act and the Law of Succession Act whereby under the Marriage Act marriages are strictly monogamous and it is an offence to conduct a second marriage but the Law of Succession gives recognition to potentially polygamous marriage and that they can inherit under this law.  Under the Matrimonial Causes Act there is no provision for application of customary law in determining the fate of the children.  Under the children’s act the act provides that in matters determining custody of children one of the matters to be taken into account are the customs affecting that child.  So in an attempt to accommodate African system of law the children are brought in a concept not present in other Acts.  Unless there is a total overhaul of the statutes in the family law arena where they are harmonized and put on the same wavelength we shall continue having these conflicts of four different family law systems.


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