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In one social context a family may refer to a man and a woman who share a common household. In another, it is defined as all persons who share blood relations. In others, it is defined as all persons who share a household. In others still it means all the members of a household, including parents and children with perhaps other relations, lodgers and even servants.
The family is the basic component of a society organization. Marriage and the founding of a family is a basic human right as per Article 16 of the Universal Declaration of Human Rights.[footnoteRef:1] Article 23 of the International Covenant on Civil and Political Rights declares that the family is the natural and fundamental group unit of society and is entitled to protection by society and the state.[footnoteRef:2] It is also the basic economic unit of society in the sense that the most productive activities take place within the family set up. The family setup provides a framework for the parties to have satisfactory sexual expression. It guarantees perpetuation of society through the receiving of offspring. It provides a framework for companionship between the members of that family. [1: G.A Resolution 217 A(III) G.A O.R., 3rd Sess.] [2: See Kakooza, J.M.N., Changes in Family Law, in (1968) 4(1 and 2) East African Law Journal 11.]
Legally, the term family is a restricted concept. There are certain formal pre-requisites that have to be met and the main one is a marriage ceremony. In law a family is created when parties enter into a legally recognized marriage. The law also restricts the right to terminate that legal status. The family is registered because it serves a number of purposes in society.
The family contemplated by the general law is the modern English type consisting of husband and wife bound in monogamy for life subject only to the possibility of a judicial decree of divorce, with their children. The notion of family in African society is much wider. It embraces the concept of the extended family, which may consist of the man, his wife or wives, his children (that is to say his unmarried daughters and his married sons with their wives and children) and other more distant relatives such as his young brothers with their wives and children.[footnoteRef:3] [3: See Read, J.S., Family Law in Kenya, in MBaye, K. (ed.), Le Droit de la Famille en Afrique Noir et a Madagascar, 1968, Paris, page 248.]
0. Family LawFamily law gives effect to the societys values as regards the relationship between man and woman.[footnoteRef:4] Family law seeks to define status between the parties in that family i.e. it defines what rights a member of the family can claim over the other or over the others property. Altering the status of parties in the family. A remedial role; that is it serves to protect certain weaker members of that family e.g. children. On termination of a family relationship there are certain members who may need protection especially economic protection. The trend now is that not all family relationships are created by marriage ceremonies such as cohabitation, single parents. The law has developed to recognize some of these relationships. [4: See generally, Kuria, G.K., The African or Customary in Kenyan Law Today, a paper presented at the Workshop on Conceptualising the Household: Issues of Theory Method and Application at the Harvard Institute for International Development, 2nd 4th November 1984.]
Some of the developments in law have been to deal with these issues, under common law and equity there is recognition given to cohabiters. Children born out of marriage also acquire recognition. Family law is the law that governs agreements to marry and betrothals, formalities that bring marriages into existence, maintenance, separation, custody , adoption, nullity, divorce property acquired during the marriage by the spouse and devolution of property in the event of the death of a spouse.[footnoteRef:5] [5: See Kuria, Gibson Kamau, Christianity and Family Law in Kenya, in (1976) 11(1) East African Law Journal 33 at 34. See also Read, James S., When is a Wife not a Wife? (When shes a witness?), in (1966) 1(1-4) Journal of the Denning Law Society, 47 at 43.]
0. Family Law in Kenya
The population of Kenya is a variety of cultural diversities. There are large numbers of Bantu speaking communities as well as speakers Nilotic and Nilo Cushitic languages. Other than that there are also large populations of people of Asian and Caucasian descent. This diversity is reflected in the personal laws applying to the various sections of the population. The mix has also meant that family law in Kenya has a much wider ambit than it is understood in England.[footnoteRef:6] [6: See Read, J.S., Family Law in Kenya, in MBaye, K. (ed.), Le Droit de la Famille en Afrique Noit et a Madagascar, 1968, Paris, page 254.]
HISTORY OF FAMILY LAW IN KENYA
0. IntroductionThe territory which is now known as Kenya: African customary law and Islamic law. Islamic law was introduced through the trans-Indian Ocean trade between the Arabian peninsular and the east coast of Africa, otherwise African customary law was the original law. The colonization of Kenya saw the establishment of statutory of marriage and divotrce which introduced principles of English family. At about the same time the Hindu family law was introduced after the colonial government brought in many people from India to work as labourers during the construction of the Uganda Railway.[footnoteRef:7]Before then however there was some presence of persons professing the Hindu faith along the coast since the Indian subcontinent had been trading with the east coast of Africa for centuries.[footnoteRef:8] [7: Derrett, J.D.M., Introduction to Modern Hindu Law, Oxford University Press, London, 1963, pages 535-546. also Kakooza, J.M.N., Changes in Family Law, in (1968) 4(1 and) East African Law Journal 1. ] [8: See Singh, Chanan, Rejoinder: Hindus and Hindu Law in Kenya, in (1971) 7 (1) East African Law Journal 69 at 71.]
The starting point for establishment of the modern family law systems in operation in Kenya today is the 1897 East Africa Order in Council, which established a legal system for Kenya, and in the process applied certain Indian and British Acts of Parliament to the East African Protectorate.[footnoteRef:9] It also applied the common law of England and principles of equity which were in force in England at the time. It also provided for the application of African customary law and Islamic law. In a word it provided for the application of the four systems of family law that are in operation in the country today. These four were African customary law, applying to Africans, Islamic law applying to those who profess the Islamic faith irrespective of their race, Hindu customary law applying to Asians who profess the Hindu faith and English law which applied mainly to Europeans and to those Africans who are taken have accepted the English way of life.[footnoteRef:10] [9: This was made under the 1890 Foreign Jurisdiction Act of England of 1890.] [10: See Kuria, G.K., The African or Customary in Kenya Law Today, a paper presented at the Workshop on Conceptualising the Household: Issues of Theory Method and Application at the Harvard Institute for International Development, 2nd 4th November 1984, pages 21, 22.]
There however existed uncertainties about these laws. Before 1946, it was not clear to the courts whether or not Hindu customary law governed the Hindu marriage. Similarly, before 1920 when the Mohammedan Marriage, Divorce and Succession Act was enacted, the High Court, basing its decisions on Hyde vs. Hyde and another(1866) LR 1 P & D 130, declined to entertain matrimonial causes arising from Muslim marriages on the ground that no law said that it had such jurisdiction.[footnoteRef:11] [11: Kuria, J.K., Religion, the Constitution and Family Law and Succession in Kenya, a mimeo, pages 107,108. ]
The East Africa Order in Council of 1897 was clear that the family law of the Muslims was Islamic law, for the African customary law applied, for the African Christians it was the law applying to Christians in India,[footnoteRef:12] while for the Europeans it was the Indian Divorce Act of 1869, applied by the Order in Council to Kenya, together with English statutes and the principles of the common law and doctrines of equity in force in England as at 12th August 1897.[footnoteRef:13]In 1902 the East Africa Marriage Ordinance[footnoteRef:14] was enacted to enable Europeans and westernized non-Europeans to contract the English type of marriage in accordance with a law derived from English law. The statute applied the English law of succession to such Africans and their children. The assumption inherent in this later provision was that by marrying in the English way the African abandoned the African way of life and totally embraced the English culture and way of life.[footnoteRef:15]The East African Marriage Ordinance of 1902 was amended in 1904, by the repeal of section 39 which had applied the English law of succession to African Christians.[footnoteRef:16] 1904 also saw the promulgation of the Native Christian Marriage Ordinance which sought to introduce to Africans a simplified procedure of contracting an English style marriage. The formalities followed in English law were considered too complex for the African Christian.[footnoteRef:17]The statute was replaced in 1931 with the African Christian Marriage and Divorce Ordinance,[footnoteRef:18]which dealt with aspects of marriage peculiar to Africans. Africans married under this Ordinance had the same law governing their married life as that which governed Europeans. [12: See the Native Courts Regulations of 1897 made under the East Africa Order in Council of 1897.] [13: See Article