The studying point in family law is the 1897 East Africa Order in Council which applied certain Indian and British Acts of Parliament to the East African Protectorate. It also applied the common law of England which was in force at the time. Insofar as the natives were concerned the Order in Council had limited application it provided that cases against natives would be brought in native courts and a Commissioner was given the power to establish and abolish those Native Courts and to regulate their procedure as well as give directions as to the application of native law and custom.
As a result of this power, the commissioner made the native court regulations of 1897 and what these regulations provided was that in matters affecting the personal status of natives, then the law of their caste or tribe insofar as it could be ascertained and insofar as it was not repugnant to national morality could be applied. For those natives who were Muslims, Islamic law would apply to them and this was with regard to matters affecting personal status.
This same formulation is what we basically find in our judicature Act insofar as the application of customary law is concerned. The provisions were further modified but the origins are Native Courts Regulations.
There were also two other communities in Kenya at the time, the British Colonisers and the Indians who had been brought in as labour and the issue here was whether for those groups they applied Indian Act or British Laws and common law rules were applied. The Indian Law was basically British law that had been passed in India and there was not much difference between the two, they were obviously geared for application to the British Settler but did they apply to the Hindu? The assumption was that in Kenya, they would apply.
For example the Indian Succession Act of 1865, this was one of the Indian applied Acts under the 1897 Order in Council. In India it had been expressly stated that that particular Act did not apply to succession matters of Hindus in which case in India they applied their customary succession laws in matters of succession. When this particular Act was applied in Kenya there was no such exclusion with regard to the Kenya Hindus. There were also issues as regards marriage and divorce and they applied English Marriage Laws. There was a bit of problem with regard to the Hindus in Kenya especially between 1897 and 1898 when it was stated that the Indian Succession Act did not apply to Hindus and that they were to be governed by their own customary law. For those Hindus who had converted to Christianity, two Acts were passed to cater for their succession, the Hindu Wills Act and the Probate and Administration Act of India, the assumption was that the orthodox Hindus applied their customary law in matters of succession.
As early as 1898 we have all these laws governing different peoples. In 1902 we got the East Africa Order in Council of 1902 whose main purpose was to clarify further when customary law applied. It was stated that in all cases whether civil or criminal in which natives were parties, the courts would be guided by native law in so far as it was applicable and not repugnant to justice and morality or inconsistent with any law made in the protectorate. This formulation of the Order in Council is the same formulation that we have in Section 3 of our Judicature Act insofar as application of customary law is concerned. In areas of family law for those natives who still practice customary law are still governed by African Customary Law. Muslims still continue to be governed by Muslim Law but with Hindus a number of developments occurred which made the Hindus to adopt laws that were similar to those found in the statues.
The 1902 Order in Council gave the commissioner power to make laws which would apply in the protectorate and one of the first laws that was made in 1902 was the Marriage Ordinance. This Ordinance was a law of general application in the sense that it was not limited by race or religion and was meant to apply to all residents in the protectorate. It provided for basically a Christian form of marriage which was strictly monogamous and made it an offence for a person married under customary law to contract a marriage under the ordinance or vice versa. It was also meant to provide an avenue for the converted natives to contract the Christian type of marriage and for the settlers to contract marriage. What was important is that any African who married under the Marriage Ordinance was supposed to have embraced the Christian way of life and therefore distanced herself from their customary way of life. Please look at Cole v. Cole the ruling in this case exemplified the situation of what happened if one contracted a marriage outside the ordinance. A Nigerian couple got married according to Christian rites under the Nigerian Marriage Ordinance. They had a son who was mentally incapacitated and after a while the husband died. The issue then arose as to who was to succeed the man or who was entitled to the man’s property and the man’s brother argued that under Customary Law he was the one entitled to inherit the man’s property. The wife argued that since they had married under the Marriage Ordinance they had distanced themselves from the African way of life therefore African customary law did not apply and instead the English Law of Succession applied and that under that English Law of Succession she was the one entitled to inherit in her own right and as guardian of her son. The court upheld her argument basically stating that since they had married under the marriage ordinance the African customary law no longer applied to them.
This was basically the same approach that was taken by the Kenyan colonial court and you will find this stated in many of the cases that were decided in that period
R v. Amkeyo
R v. Mwakio
Robin v. Rex
Most of these cases were actually dealing with issue of admissibility of evidence given by the wives arguing that they are in a privileged position and therefore could not testify against their husbands in Mwakio the Judge said that “it is unfortunate that the word wife and marriage have been applied in this connection. If only the woman party had been described as a concubine or something of the sort, the question could never have arisen.” That illustrated the colonial courts attitude to women who were married according to customary law. They did not deserve to be termed wives as per the colonialists and the wife evidence was going to be admissible because they were married under customary law.
THE NATIVE CHRISTIAN MARRIAGE ORDINANCE IN 1904
The Native Christian Marriage Ordinance applied only to the marriage of Christian applicants. It was supposed to supplement the marriage ordinance and was intended to relieve the Africans of the need to comply with the formalities laid down in the marriage ordinance. It only applied to Africans who professed Christianity and just like marriage ordinance marriage under this Act was strictly monogamous.
This Act also provided some protection to widows in the sense that widows who had been married under the ordinance were protected from being inherited as was the case in customary law. That is they could refuse to subject themselves to the subject of widows inheritance. The marriage had to be celebrated by a church minister and before the church minister did this he had to satisfy himself that the parties were Christians.
The native marriage Christian ordinance was replaced in 1891 with the African Christian Marriage and Divorce Act, Cap 151 of the laws of Kenya.
THE ENACTMENT OF THE DIVORCE ORDINANCE
This was based on the Indian Divorce Act of 1869 which was one of the Acts applied by the 1897 Order in Council. It provided or afforded relief only in respect to monogamous marriages. This is still the position to the present day. It was replaced by the matrimonial Causes Act in 1941.
In 1928 we also have additional relieve being accorded by the separation Courts (Separation & Maintenance Ordinance) which was limited to monogamous marriages. It still exists under the same name in our laws and its Cap 153. The purpose was to provide parties with judicial separation other than divorce and also to provide parties in a monogamous marriage to seek maintenance while the marriage is still subsisting.
In 1906 the Mohammedan Marriage & Divorce Registration Ordinance was introduced to provide for registration of Islamic Marriages and Divorces. Please note that it only provides for registration of marriage or divorce. The Act is basically procedural and not substantive.
In 1946 we have the Hindu Marriage Divorce and Succession Ordinance being enacted. This is where Hindus parted way with Hindu Customary Law, the Act provided that in future all Hindu Marriages were required to be monogamous and the Act extended to Hindus the reliefs that are available under the Matrimonial Act and under the subordinate Courts separation and maintenance Act. Under orthodox Hindus marriages can be polygamous.