REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. E106 OF 2023
PETER KIMARI GATHIRIMU …………………………….. PETITIONER
-VERSUS-
THE HONOURABLE ATTORNEY GENERAL …….. 1 ST RESPONDENT
THE NATIONAL ASSEMBLY …………………….…. 2 ND RESPONDENT
AND
MARY WANJIKU WAMBUI ……..………….. 1 ST INTERESTED PARTY
THE KENYA CONFERENCE OF
CATHOLIC BISHOPS …....................................2 ND INTERESTED PARTY
JUDGMENT
Introduction
1. The question from the Lord’s oracle against Israel in Amos 3:3, “Do two walk together unless they have agreed to do so?” points out that a measure of agreement is necessary if two parties are to walk together. The Holy Bible gives two clear grounds for divorce: (1) sexual immorality in Mathew 5:32 ; and 19:9 and (2) abandonment by an unbeliever in 1 Corinthians 7:15 . Even in these two instances, though, divorce is not required or even encouraged. The most that can be said is that sexual immorality and abandonment are grounds (an allowance) for divorce. Confession, forgiveness, reconciliation and restoration are always the first steps. Therefore, in Christianity, divorce should only be viewed as a last resort.
2. The fundamental legal question that this Court is asked to answer in the petition is whether a secular state can provide a mechanism for the dissolution of a marriage when one of the spouses holds a deeply rooted religious belief that their marriage is sacramentally indissoluble while the other spouse has filed for divorce.
3. This Court acknowledges that the intersection of law and religion is intrinsically subtle. Statutory civil laws are enacted to promote societal order, protect rights and uphold public interest. On the other hand, religious conscience is rooted in individual autonomy and freedom of belief, which are protected under the constitutional guarantees. The test lies in balancing these opposing interests without deflating the constitutional protections afforded to religious exercise.
4. In examining the relevant constitutional provisions and the jurisprudence that has developed over time, this Court will adopt a nuanced approach, noting that the principles of religious liberty are not absolute. They are subject to limitations necessary to safeguard public order, health and morals. However, such limitations must be narrowly tailored and must not constitute a total restriction on religious exercise.
5. Nonetheless, those laws which impose a burden on religious practice must serve a compelling state interest and be the least restrictive means of achieving that interest. Equally, laws that infringe upon religious conscience must be scrutinized to ensure that they do not unjustifiably impinge upon protected rights and fundamental freedoms.
6. In this case, this Court is called upon determine whether the challenged law or enforcement action strikes an appropriate balance or whether it unjustly encroaches upon religious rights.
7. According to the petitioner, "Marriage is a sacred vow, not a temporary chapter and its strength lies in steadfastness, not dissolution."
Background
8. The Petitioner, Peter Kimari Gathirimu is an adult male of sound mind and disposition residing and working for gain as a medical practitioner in Nairobi City County. He is a Catholic, a member of the Catholic Order of Preachers and a subject of the Bishop of the Archdiocese of Nairobi. The 1 st Respondent the Honorable Attorney General is the Principal Legal Adviser to the National Government whose role is to represent the National Government in court as stipulated in Article 156 of the Constitution of Kenya, 2010. The 2 nd Respondent, the National Assembly is the legislative arm of the national government.
9. The 1 st Interested Party Mary Wanjiku Wambui is a female adult of sound mind and disposition who is resident in and works for gain in Nairobi City County. She is also a religious subject of the Bishop of the Archdiocese of Nairobi. The 2 nd Interested Party, The Kenya Conference of Catholic Bishops (K.C.C.B.) is the Assembly of the Catholic Bishops in Kenya united and exercising together their pastoral offices over Christ’s faithful.
10. The Petitioner seeks orders from this Court to declare certain provisions of the Marriage Act, 2014 relating to dissolution of marriages unconstitutional.
11. The Petitioner’s case is that on 23 rd August 2019, he and the 1 st Interested Party Mary Wanjiku Wambui solemnized a Christian marriage in the Catholic Church at the Shrine of Mary Help of Christians, but that on 6 th March 2023, his wife, Ms. Wambui filed a Divorce vide Petition No. MCDC/E307/2023 at the Chief Magistrate’s Court at Milimani Law Courts.
12. The petitioner alleges that as faithful adherents of the Catholic faith and leaders in the said church, he believes that marriage is indissoluble and that by being cited as a Respondent in the divorce petition, he is being compelled to engage in divorce proceedings which is an act contrary to his beliefs. He asserts that the determination of the divorce petition filed by his wife, the 1 st Interested Party, forced him to violate the tenets of his Roman Catholic faith by dissolving their marriage under Section 65 of the Marriage Act .
13. The Petitioner also states that under Article 45(4) of the Constitution , Parliament has a non-discretionary mandate to enact legislation recognizing systems of religious personal and family law. He avers that while Parliament meticulously accommodated Islamic marriages and their distinct denominational sects such as the Ismaili sect, it treated Christianity as a homogenous block.
14. His further complaint is that by failing to recognize the Catholic Code of Canon Law and the judicial authority of the Metropolitan Tribunals, the Marriage Act discriminates against Catholics, contrary to Article 27 of the Constitution, thereby violating their freedom of religion guaranteed under Article 32. The petitioner further asserts that by choosing a Catholic rite, the parties explicitly waived their future right to seek a civil divorce.
15. Additionally, the petitioner pleads that a fault-based divorce legal regime compromises human dignity and freedoms in what is a personal matter and that individuals should have a right to decide by mutual consent when and for what reason they should dissolve their marriage or at the very least delegate the process to their preferred religious or cultural system. He asserts that parties should be free to enter and leave a marriage contract subject to their consciences and the tenets of their faith of customary laws.
The Amended Petition
16. The initial petition is dated 30 th March 2023 and later amended on 19 th July 2023. The petition seeks the following reliefs:
A. A DECLARATION THAT:
a. The Divorce Petition number MCDC/E307/2023 filed by the 1 st Interested Party compels and forces the Petitioner to participate in divorce proceedings against his faith, religion and belief contrary to Article 32(4) of the Constitution of Kenya, 2010.
b. The Petitioner has the right to have any marriage dispute concerning him adjudicated by the Metropolitan Tribunal of the Archdiocese of Nairobi according to the norms of the Code of Canon of Law.
c. The right to stay married is protected under the Bill of Rights of the Constitution of Kenya 2010.
d. The right to divorce is not provided for by the Constitution of Kenya 2010.
e. The Code of Canon Law is the system of personal and family law adhered to by persons who profess the Holy Catholic religion and that belong to the Holy Catholic Church.
f. The Code of Canon Law as it relates to personal and family law forms part of the corpus of the Laws of Kenya for persons who profess the Holy Catholic religion.
g. The Code of Canon Law as it relates to personal and family law is entrenched in the Constitution of Kenya 2010 for persons who profess the Holy Catholic religion.
h. The Marriage Act 2014 does not recognize the marriages conducted under Roman Catholic church law and does not recognize the system of personal and family law adhered to by persons professing the Roman Catholic religion and contravenes Article 45(4) of the Constitution of Kenya 2010; and therefore the Marriage Act 2014 is unconstitutional, null and void to the extent of that inconsistency.
i. The Marriage Act 2014 recognizes the system of personal and family law adhered to by persons professing the Islamic religion while it does not recognize the system of personal and family law adhered to by persons professing the Roman Catholic religion; and therefore the Marriage Act 2014 does not treat all persons as equal before the law with equal protection and benefit of the law contrary to Article 27(1) of the Constitution of Kenya; therefore the Marriage Act 2014 is unconstitutional, null and void to the extent of that inconsistency.
j. The Marriage Act 2014 recognizes the system of personal and family law adhered to by persons professing the Islamic religion while it does not recognize the system of personal and family law adhered to by persons professing the Roman Catholic religion; and therefore the Marriage Act 2014 is discriminatory against Catholics on grounds of religion; therefore, the Marriage Act, 2014 is unconstitutional, null and void to the extent of that inconsistency.
k. The Marriage Act 2014 provides for what it refers to as “Christian Marriage” but does not recognize the variance of doctrine, norms and laws between the different Christian denominations, and ignores the fact that the Catholic religion does not accept divorce, unlike other Christian religions. Therefore, the Marriage Act 2014 is discriminatory against Catholics contrary to Article 27(4) of the Constitution of Kenya 2010 and is unconstitutional, null and void to the extent of that inconsistency.
l. Persons who profess the Catholic religion are a “marginalized group” as defined in article 260 of the Constitution of Kenya 2010 and have been discriminated against historically and presently in regard to personal and family law as it relates to marriage, its dissolution and the resolution of marriage disputes contrary to Article 27(4) of the Constitution of Kenya 2010 and affirmative action programmes designed to ensure that Catholics develop their practices should be instituted in accordance with Article 56(d) of the Constitution of Kenya 2010.
m. Section 65 of the Marriage Act 2014 which provides for the dissolution of a Christian Marriage is contrary to Articles 32 and 45(4)(b) of the Constitution of Kenya 2010 and is therefore unconstitutional, null and void to the extent of that inconsistency.
n. Section 73 of the Marriage Act 2014 which provides for annulment of marriages does not provide the grounds for annulment of marriages provided by the Catholic law contrary to Article 45(4) of the Constitution of Kenya 2010 and therefore section 73 of the Marriage Act 2014 is unconstitutional, null and void to the extent of that inconsistency.
o. Sections 66(2) and 66(6) of the Marriage Act 2014 which provide for the grounds for dissolution of a Civil Marriage violate the national values of human dignity and human rights; violate the right to have a person’s inherent dignity respected; and violate the right to freedom of conscience, thought and opinion, contrary to Articles 10(2), 28 and 32(1) of the Constitution of Kenya 2010. Section 66(2) and 66(6) of the Marriage Act 2014 are therefore unconstitutional, null and void to the extent of that inconsistency.
p. Parties contracting Civil Marriage with free mutual consent may by the same mutual consent terminate their union without having to prove or adduce marital offenses and therefore Section 66(2) and 66(6) of the Marriage Act 2014 are unconstitutional, null and void to the extent of that inconsistency.
q. Marital vows are valid contracts and can only be terminated by mutual consent and section 65 of the Marriage Act 2014 provides for violation of those marital vows made by parties contracting marriage by Catholic rite violating the national values of integrity and equity and contravening Article 10 of the Constitution of Kenya 2010, and therefore section 65 of the Marriage Act is unconstitutional, null and void.
r. There was no public participation in the enactment of the Marriage Act 2014 and specifically the opinion of the Catholics Church was not entertained contrary to Article 118(1)(b) of the Constitution of Kenya 2010.
s. Pursuant to Article 261(6)(a), Parliament has failed to enact the appropriate legislation relating to Family and Marriage in accordance with Article 45 of the Constitution of Kenya 2010 within the time specified in the Fifth Schedule of the Constitution 201(1)
B. ORDERS
(a) Case number MCDC/E307/2023 a. THAT Divorce Petition ca dismissed and/or the same should not be heard and no Decree Nissi or Decree Absolute should be issued for it.
(b) THAT PERMANENT INJUNCTION be issued against the 1st Interested Party from prosecuting or filing any Divorce, Separation or Annulment Proceeding against the Petitioner in any Court other than the Metropolitan Tribunal of the Holy Catholic Church.
(c) THAT A CONSERVATORY ORDER/STAY OF PROCEEDINGS be issued against Divorce Cause no. MCDC/E307/2023 until Parliament enacts a law recognizing the Code of Canon Law as it relates to personal and family law for persons professing the Holy Catholic religion.
(d) THAT The Honorable Attorney General be pleased to make regulation for the application of Catholic law regarding marriage pursuant to section 94(1) of the Marriage Act pending or in lieu of enactment by the National Assembly of appropriate legislation consistent with the Constitution.
(e) THAT pursuant to Article 261(6)(b) Parliament and the Attorney General be directed to take steps to ensure that legislation recognizing the Code of Canon Law as it relates to personal and family law is enacted, within a specified period, and to report the progress to the Chief Justice.
(f) THAT The Rules Committee created under the Civil Procedures Act and the Honorable Chief Justice be pleased to enact practice notes or procedures to give effect to the Marriage Act 2014 to enable its compliance to the Constitution of Kenya 2010 as regards Catholic law in marriage.
(g) THAT the Honorable Attorney General with the assistance of the Kenya Conference of Catholic Bishops be pleased to advise the Government of Kenya to negotiate a Concordat with the Holy See to implement the Code of Canon law as the personal and family for Catholics residing in the Great Republic of Kenya.
(h) Any other Orders the Court may seem fit.
17. The Petition is premised on the facts on the face of it which are that the Petitioner is challenging the constitutionality of the Marriage Act, 2014, arguing that the Act violates the religious freedoms of Roman Catholics by failing to recognize the indissoluble nature of Catholic sacramental marriage and the jurisdiction of the Catholic Church’s Code of Canon Law.
18. According to the petitioner, because the Catholic Church views marriage as an indissoluble sacrament and rejects civil divorce, forcing the Petitioner into civil divorce proceedings which were initiated by the 1 st Interested Party under Section 65 of the Marriage Act compels the petitioner to participate in an act antithetical to his religious beliefs.
19. The petitioner asserts that under Article 45(4) of the Constitution , Parliament has a non-discretionary mandate to enact legislation recognizing religious family laws and accordingly, its failure to recognize Catholic Canon Law and the Metropolitan Tribunal is a distinct constitutional violation.
20. The Petitioner seeks to have Sections 65, Sections 66(2), 66(6) and 73 of the Marriage Act, 2014 declared unconstitutional, null and void for permitting divorce and for failing to incorporate Catholic Canon Law grounds for annulment and demands that Catholic marital disputes be adjudicated exclusively by the Church’s Metropolitan Tribunal. He further alleges that there was no public participation conducted in the enactment of the Marriage Act thereby violating Article 118 of the Constitution.
Response to the Petition
21. In response to the Petition, the 2 nd Respondent, the national Assembly filed a Replying Affidavit dated 27 th October 2023, sworn by Samuel Njoroge, the Clerk of the National Assembly, urging this Court to dismiss the Petition based on several facets of the documents annexed to the Petition by the Petitioner.
22. It is deposed that the impugned legislation was first initiated as the Marriage Bill/the Marriage (Amendment) Bill No. 13 of 2013 and on 16 th July, 2013. That the Bill went through its First Reading and followed all constitutional procedures, including subsequent readings, public participation which invited submissions and memoranda via newspaper advertisements and proper presidential assent.
23. That the impugned law was passed in accordance with the Constitution and the National Assembly Standing Orders hence the National Assembly did not infringe any Article of the Constitution. That the law in question carries a strong presumption of constitutionality and should not be struck down just because it does not suit the Petitioner’s personal interests.
24. It is deposed that the Purpose of the Act is to unify the law and that before 2014, Kenya had a messy, fragmented system of marriage laws divided by religion. That the Act was designed to create a single, uniform legal framework, based on the 1967 Commission report by the Commission on the Law of Marriage and Divorce, which concluded that marriage and divorce are matters of state interest and that the state cannot abdicate this responsibility to religious institutions. That during the Committees’ deliberations, they considered the views of the Christian Churches and noted that they also recognize the state's right to regulate civil marriage.
25. It is averred that the Commission also recommended that no party should be allowed to divorce except by a decree of a court of competent jurisdiction and further that the Marriage Act does not force people to divorce but simply provides a legal option for dissolution when a marriage has irretrievably broken down under Sections 65 and 66 . Further, that the Act respects religion by requiring parties in Christian marriages to attempt mediation through their religious institutions under Section 64 of the Act, before filing for a legal divorce.
26. It is contended that freedom of religion is not absolute, in that, whereas Article 32 protects religious freedom, it can be limited under Article 24 (1) (d) of the Constitution to protect the rights and freedoms of others. That if every religion were allowed a free hand to dictate marital rules without a common legal baseline, it would result in societal disharmony. It is further deposed that the rationale for divorce in the law is to ensure conformity with International Human Rights regimes.
27. It is the 2 nd respondent’s averment that the right to marry is not the right to stay married. That the Constitution under Article 45 (3) explicitly anticipates that marriages can be dissolved and guarantees equal rights upon dissolution. Furthermore, that international human rights standards dictate that human dignity includes the right to exit an irretrievably broken marriage. This Court is urged to dismiss the petition because the Petitioner has failed to prove the impugned law is unconstitutional.
28. The parties canvassed the Petition by way of written submissions which were also highlighted orally in court.
The Petitioner’s Submissions
29. The Petitioner’s Submissions are dated 21 st November 2023 as highlighted on 22 nd April, 2026. He submits on the following issues: -
(1 Does this Court have the jurisdiction to entertain this matter, or is this matter justiciable before this Court?
(2 Does the Catholic Church have established laws that govern marriage, separation and the annulment of marriages?
(3 In enacting the Marriage Act 2014, did the National Assembly (“the NA”):
(a) Recognize marriages concluded under the system of religious, personal and family law of the Catholic Church? and
(b) Recognize the system of personal and family law adhered to by persons professing the Catholic religion?
(4 Are the marriages or system of laws of the Catholic Church that govern marriage inconsistent with the Constitution of Kenya 2010?
(5 By providing for the system of personal and family law adhered to by Muslims and not providing for the system of personal and family law adhered to by Catholics, does the Marriage Act 2014 fail to treat Muslims and Catholics equally, and is the Marriage Act 2014 discriminatory against Catholics?
(6 How should the Court address the legislative omission of the National Assembly?
(7 Would a divorce decree violate the Petitioner’s freedom from being compelled to act or engage in an act that is contrary to his belief or religion and also a violation of Article 10 on National Values; and would a divorce decree violate the Petitioner’s right to marry?
(8 Would an injunction against divorce be a violation of any rights of the 1 st Interested Party as provided for by the Bill of Rights?
30. On the first issue, the Petitioner counters the 2 nd Respondent, the National Assembly’s argument that the Marriage Act is protected by a presumption of constitutionality by arguing that that this presumption is rebuttable as determined by the Court of Appeal National Assembly of Kenya v Kina & another (Civil Appeal 166 of 2019) [2022] KECA 548 (KLR) and the High Court in S B M & another v Attorney General (Constitutional Petition No 21 of 2021) [2022] KEHC 13920 (KLR) where it is said to have been held that any legislation or decisions made by Parliament outside constitutional boundaries attract the court’s jurisdiction.
31. On the second issue, it is submitted that the Marriage Act entails a legislative omission and discrimination against Catholics yet Article 45 (4) of the Constitution mandates Parliament to pass laws recognizing marriages and family law systems adhered to under any religion or tradition, but that in this case, Parliament has not done so. Further submission is that instead, Parliament did not accept contributions from the Catholic Church during the public participation stage of the Bill preparation while it took contributions from the National Council of Churches of Kenya, the Anglican Church and the Methodist Church as demonstrated in the proceedings of the Committee dated 26 th March 2014 (exhibit ‘SN-5’ at page 114, para 1) annexed.
32. The petitioner submits that the Court of Appeal in The National Assembly of Kenya v Kina & Ano (supra) took judicial notice of the variance of the Catholic law relating to marriage with that of other Christian churches and the law of the land.
33. On the third issue, it is submitted that the Marriage Act generalizes Christian Marriages without recognizing the distinct laws of the Catholic Church while it accommodates Islamic personal law and even nuances within specific Muslim sects such as the Ismaili sect. That in this regard, the 2 nd Respondent ought to have accommodated the Catholic personal and family laws in the Act because it is distinctive from other Christian denominations.
34. The petitioner urges this Court to consider whether the Marriage Act adhered to constitutional fidelity as espoused by Mativo J. in Centre for Rights Education and Awareness & 2 others v Speaker the National Assembly & 6 others [2017] eKLR .
35. The petitioner further submits on the rights to religion and conscience versus divorce and asserts that under Catholic doctrine and the Code of Canon Law, a sacramental marriage is indissoluble and divorce is not recognized. He further submits that Article 45 (3) would appear contrary to Article 20 (3) (a) but that with the provisions of Article 259, the Court must find that if indeed the drafters of the Constitution intended to guarantee the right to divorce under the Bill of Rights, they would have expressly done so. The case of S B M & another v Attorney General (supra) , Babiarz v Poland (Application No. 1955/10) at the European Court of Human Rights and Cass R Sunstein, Legal Reasoning and Political Conflict (New York: Oxford University Press, 1996) were cited in support of that proposition.
36. The Petitioner additionally submits that the Marriage Act 2014, did not treat the Catholic religion and the Islamic religion equally while implementing Article 45(4) . That Parliament cannot provide any rational basis for this unequal treatment or differentiation, since both Catholic and Islamic religions have distinct and ancient laws that relate to marriage with the Catholic ones being more elaborate and developed. That accordingly, Parliament was aware that the provisions in Sections 65 and 73 of the Marriage Act 2014 did not satisfy the requirements of Article 45(4) of the Constitution as regards Catholic family law.
37. It is submitted that the apparent limitation by the Marriage Act 2014 of the rights of Catholics as provided by Article 45(4) is not specific in its intention to limit the rights of Catholics, that the limitation is invalid pursuant to Article 24(2)(a) and that the said limitation is not legitimate, thereby rendering the statute unconstitutional.
38. The Petitioner also cited the case of Wambui & 10 others v Speaker of the National Assembly & 6 others (Consolidated)) [2022] KEHC 10275 (KLR) on the need for holistic and purposive interpretation of the Constitution and a presentation from the Constitutional Court of Spain in XIV Conference of Constitutional Courts of Europe: The Problem of Legislative Omission in Constitutional Jurisprudence - Vilnius, May 2008 in proposing the annulment of the said sections of the Marriage Act.
39. The petitioner further proposes that Catholic marriages that have already been dissolved pursuant to Section 65 of the Marriage Act should be allowed to retain their nullified status in a bid to divorce unconstitutionality from nullity.
40. The Petitioner contends that being forced to participate in civil divorce proceedings violates his freedom of religion and conscience under Article 32 of the Constitution . He argues that issuing a divorce decree forces a violation of lifelong sacred vows, which undermines national values of human dignity, transparency, accountability and integrity under Article 10 of the Constitution.
41. It is also submitted further that because the Catholic Church bars divorced individuals from remarrying, a civil divorce would permanently strip the Petitioner of his right to marry in the future under his faith.
42. The Petitioner submits that neither the Kenyan Constitution nor comparative international jurisprudence guarantees a right to divorce. He posits that by choosing a Catholic marriage rite, both parties explicitly waived any right to seek a divorce. That further, the Petition should be allowed because Parliament’s omission in Sections 65 and 73 of the Marriage Act is invalid pursuant to Article 2(4) of the Constitution and the said Catholic law on marriage is the law of the land for marriages celebrated under Catholic rites.
43. The Petitioner proposes that, to resolve the legislative gap without creating a constitutional absurdity or requiring the wholesale dissolution of the Marriage Act, the Court declares Sections 65 and 73 unconstitutional specifically for marriages celebrated under Catholic rites; decouples unconstitutionality from nullity, meaning, previous Catholic marriages already dissolved under these sections would retain their status; declare that disputes regarding Catholic marriages must be governed by Catholic family law under the Code of Canon Law; and issue an order of mandamus compelling the Attorney General to draft regulations to operationalize Catholic family law under the Marriage Act.
The 2 nd Respondent’s Submissions
44. The 2 nd Respondent’s (The National Assembly) filed written submissions dated 29 th January 2025. Counsel highlights three issues for determination being:
i. Whether adequate public participation was conducted in the enactment of the Marriage Act;
ii. Whether the provisions of sections 65, 66(2), 66(6) and 73 of the Marriage Act, 2014 are unconstitutional and
iii. Whether the impugned provisions compel persons to undergo a divorce .
45. On the first issue, the 2 nd respondent submits that the public participation conducted was adequate and non-discriminatory because the National Assembly’s Departmental Committee on Justice and Legal Affairs formally invited public views through a print newspaper advertisement on 8 th August 2013 which afforded the public reasonable opportunity to express their views on the Marriage Bill as required by the law and espoused in the Constitutional Court of South Africa’s Judgment in Minister of Health and Another v New Clicks South Africa (Pty) Ltd and Others (CCT 59/2004) [2005] ZACC at para 630 and Law Society of Kenya vs. The Attorney General and 10 Others Petition No. 3 of 2016 at para 22 .
46. It is also submitted that the Memoranda were received and considered from the general public and various faith groups. That no discrimination occurred against the Catholic Church contrary to the assertions of the Petitioner because the law requires taking reasonable steps to facilitate public participation while appreciating that, not every single person or specific entity must be orally heard. Counsel submits that the Petitioner merely alleged a lack of public participation but failed to provide any supporting evidence.
47. On the second issue, it is submitted that th
[...truncated]
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. E106 OF 2023
PETER KIMARI GATHIRIMU …………………………….. PETITIONER
-VERSUS-
THE HONOURABLE ATTORNEY GENERAL …….. 1 ST RESPONDENT
THE NATIONAL ASSEMBLY …………………….…. 2 ND RESPONDENT
AND
MARY WANJIKU WAMBUI ……..………….. 1 ST INTERESTED PARTY
THE KENYA CONFERENCE OF
CATHOLIC BISHOPS …....................................2 ND INTERESTED PARTY
JUDGMENT
Introduction
1. The question from the Lord’s oracle against Israel in Amos 3:3, “Do two walk together unless they have agreed to do so?” points out that a measure of agreement is necessary if two parties are to walk together. The Holy Bible gives two clear grounds for divorce: (1) sexual immorality in Mathew 5:32 ; and 19:9 and (2) abandonment by an unbeliever in 1 Corinthians 7:15 . Even in these two instances, though, divorce is not required or even encouraged. The most that can be said is that sexual immorality and abandonment are grounds (an allowance) for divorce. Confession, forgiveness, reconciliation and restoration are always the first steps. Therefore, in Christianity, divorce should only be viewed as a last resort.
2. The fundamental legal question that this Court is asked to answer in the petition is whether a secular state can provide a mechanism for the dissolution of a marriage when one of the spouses holds a deeply rooted religious belief that their marriage is sacramentally indissoluble while the other spouse has filed for divorce.
3. This Court acknowledges that the intersection of law and religion is intrinsically subtle. Statutory civil laws are enacted to promote societal order, protect rights and uphold public interest. On the other hand, religious conscience is rooted in individual autonomy and freedom of belief, which are protected under the constitutional guarantees. The test lies in balancing these opposing interests without deflating the constitutional protections afforded to religious exercise.
4. In examining the relevant constitutional provisions and the jurisprudence that has developed over time, this Court will adopt a nuanced approach, noting that the principles of religious liberty are not absolute. They are subject to limitations necessary to safeguard public order, health and morals. However, such limitations must be narrowly tailored and must not constitute a total restriction on religious exercise.
5. Nonetheless, those laws which impose a burden on religious practice must serve a compelling state interest and be the least restrictive means of achieving that interest. Equally, laws that infringe upon religious conscience must be scrutinized to ensure that they do not unjustifiably impinge upon protected rights and fundamental freedoms.
6. In this case, this Court is called upon determine whether the challenged law or enforcement action strikes an appropriate balance or whether it unjustly encroaches upon religious rights.
7. According to the petitioner, "Marriage is a sacred vow, not a temporary chapter and its strength lies in steadfastness, not dissolution."
Background
8. The Petitioner, Peter Kimari Gathirimu is an adult male of sound mind and disposition residing and working for gain as a medical practitioner in Nairobi City County. He is a Catholic, a member of the Catholic Order of Preachers and a subject of the Bishop of the Archdiocese of Nairobi. The 1 st Respondent the Honorable Attorney General is the Principal Legal Adviser to the National Government whose role is to represent the National Government in court as stipulated in Article 156 of the Constitution of Kenya, 2010. The 2 nd Respondent, the National Assembly is the legislative arm of the national government.
9. The 1 st Interested Party Mary Wanjiku Wambui is a female adult of sound mind and disposition who is resident in and works for gain in Nairobi City County. She is also a religious subject of the Bishop of the Archdiocese of Nairobi. The 2 nd Interested Party, The Kenya Conference of Catholic Bishops (K.C.C.B.) is the Assembly of the Catholic Bishops in Kenya united and exercising together their pastoral offices over Christ’s faithful.
10. The Petitioner seeks orders from this Court to declare certain provisions of the Marriage Act, 2014 relating to dissolution of marriages unconstitutional.
11. The Petitioner’s case is that on 23 rd August 2019, he and the 1 st Interested Party Mary Wanjiku Wambui solemnized a Christian marriage in the Catholic Church at the Shrine of Mary Help of Christians, but that on 6 th March 2023, his wife, Ms. Wambui filed a Divorce vide Petition No. MCDC/E307/2023 at the Chief Magistrate’s Court at Milimani Law Courts.
12. The petitioner alleges that as faithful adherents of the Catholic faith and leaders in the said church, he believes that marriage is indissoluble and that by being cited as a Respondent in the divorce petition, he is being compelled to engage in divorce proceedings which is an act contrary to his beliefs. He asserts that the determination of the divorce petition filed by his wife, the 1 st Interested Party, forced him to violate the tenets of his Roman Catholic faith by dissolving their marriage under Section 65 of the Marriage Act .
13. The Petitioner also states that under Article 45(4) of the Constitution , Parliament has a non-discretionary mandate to enact legislation recognizing systems of religious personal and family law. He avers that while Parliament meticulously accommodated Islamic marriages and their distinct denominational sects such as the Ismaili sect, it treated Christianity as a homogenous block.
14. His further complaint is that by failing to recognize the Catholic Code of Canon Law and the judicial authority of the Metropolitan Tribunals, the Marriage Act discriminates against Catholics, contrary to Article 27 of the Constitution, thereby violating their freedom of religion guaranteed under Article 32. The petitioner further asserts that by choosing a Catholic rite, the parties explicitly waived their future right to seek a civil divorce.
15. Additionally, the petitioner pleads that a fault-based divorce legal regime compromises human dignity and freedoms in what is a personal matter and that individuals should have a right to decide by mutual consent when and for what reason they should dissolve their marriage or at the very least delegate the process to their preferred religious or cultural system. He asserts that parties should be free to enter and leave a marriage contract subject to their consciences and the tenets of their faith of customary laws.
The Amended Petition
16. The initial petition is dated 30 th March 2023 and later amended on 19 th July 2023. The petition seeks the following reliefs:
A. A DECLARATION THAT:
a. The Divorce Petition number MCDC/E307/2023 filed by the 1 st Interested Party compels and forces the Petitioner to participate in divorce proceedings against his faith, religion and belief contrary to Article 32(4) of the Constitution of Kenya, 2010.
b. The Petitioner has the right to have any marriage dispute concerning him adjudicated by the Metropolitan Tribunal of the Archdiocese of Nairobi according to the norms of the Code of Canon of Law.
c. The right to stay married is protected under the Bill of Rights of the Constitution of Kenya 2010.
d. The right to divorce is not provided for by the Constitution of Kenya 2010.
e. The Code of Canon Law is the system of personal and family law adhered to by persons who profess the Holy Catholic religion and that belong to the Holy Catholic Church.
f. The Code of Canon Law as it relates to personal and family law forms part of the corpus of the Laws of Kenya for persons who profess the Holy Catholic religion.
g. The Code of Canon Law as it relates to personal and family law is entrenched in the Constitution of Kenya 2010 for persons who profess the Holy Catholic religion.
h. The Marriage Act 2014 does not recognize the marriages conducted under Roman Catholic church law and does not recognize the system of personal and family law adhered to by persons professing the Roman Catholic religion and contravenes Article 45(4) of the Constitution of Kenya 2010; and therefore the Marriage Act 2014 is unconstitutional, null and void to the extent of that inconsistency.
i. The Marriage Act 2014 recognizes the system of personal and family law adhered to by persons professing the Islamic religion while it does not recognize the system of personal and family law adhered to by persons professing the Roman Catholic religion; and therefore the Marriage Act 2014 does not treat all persons as equal before the law with equal protection and benefit of the law contrary to Article 27(1) of the Constitution of Kenya; therefore the Marriage Act 2014 is unconstitutional, null and void to the extent of that inconsistency.
j. The Marriage Act 2014 recognizes the system of personal and family law adhered to by persons professing the Islamic religion while it does not recognize the system of personal and family law adhered to by persons professing the Roman Catholic religion; and therefore the Marriage Act 2014 is discriminatory against Catholics on grounds of religion; therefore, the Marriage Act, 2014 is unconstitutional, null and void to the extent of that inconsistency.
k. The Marriage Act 2014 provides for what it refers to as “Christian Marriage” but does not recognize the variance of doctrine, norms and laws between the different Christian denominations, and ignores the fact that the Catholic religion does not accept divorce, unlike other Christian religions. Therefore, the Marriage Act 2014 is discriminatory against Catholics contrary to Article 27(4) of the Constitution of Kenya 2010 and is unconstitutional, null and void to the extent of that inconsistency.
l. Persons who profess the Catholic religion are a “marginalized group” as defined in article 260 of the Constitution of Kenya 2010 and have been discriminated against historically and presently in regard to personal and family law as it relates to marriage, its dissolution and the resolution of marriage disputes contrary to Article 27(4) of the Constitution of Kenya 2010 and affirmative action programmes designed to ensure that Catholics develop their practices should be instituted in accordance with Article 56(d) of the Constitution of Kenya 2010.
m. Section 65 of the Marriage Act 2014 which provides for the dissolution of a Christian Marriage is contrary to Articles 32 and 45(4)(b) of the Constitution of Kenya 2010 and is therefore unconstitutional, null and void to the extent of that inconsistency.
n. Section 73 of the Marriage Act 2014 which provides for annulment of marriages does not provide the grounds for annulment of marriages provided by the Catholic law contrary to Article 45(4) of the Constitution of Kenya 2010 and therefore section 73 of the Marriage Act 2014 is unconstitutional, null and void to the extent of that inconsistency.
o. Sections 66(2) and 66(6) of the Marriage Act 2014 which provide for the grounds for dissolution of a Civil Marriage violate the national values of human dignity and human rights; violate the right to have a person’s inherent dignity respected; and violate the right to freedom of conscience, thought and opinion, contrary to Articles 10(2), 28 and 32(1) of the Constitution of Kenya 2010. Section 66(2) and 66(6) of the Marriage Act 2014 are therefore unconstitutional, null and void to the extent of that inconsistency.
p. Parties contracting Civil Marriage with free mutual consent may by the same mutual consent terminate their union without having to prove or adduce marital offenses and therefore Section 66(2) and 66(6) of the Marriage Act 2014 are unconstitutional, null and void to the extent of that inconsistency.
q. Marital vows are valid contracts and can only be terminated by mutual consent and section 65 of the Marriage Act 2014 provides for violation of those marital vows made by parties contracting marriage by Catholic rite violating the national values of integrity and equity and contravening Article 10 of the Constitution of Kenya 2010, and therefore section 65 of the Marriage Act is unconstitutional, null and void.
r. There was no public participation in the enactment of the Marriage Act 2014 and specifically the opinion of the Catholics Church was not entertained contrary to Article 118(1)(b) of the Constitution of Kenya 2010.
s. Pursuant to Article 261(6)(a), Parliament has failed to enact the appropriate legislation relating to Family and Marriage in accordance with Article 45 of the Constitution of Kenya 2010 within the time specified in the Fifth Schedule of the Constitution 201(1)
B. ORDERS
(a) Case number MCDC/E307/2023 a. THAT Divorce Petition ca dismissed and/or the same should not be heard and no Decree Nissi or Decree Absolute should be issued for it.
(b) THAT PERMANENT INJUNCTION be issued against the 1st Interested Party from prosecuting or filing any Divorce, Separation or Annulment Proceeding against the Petitioner in any Court other than the Metropolitan Tribunal of the Holy Catholic Church.
(c) THAT A CONSERVATORY ORDER/STAY OF PROCEEDINGS be issued against Divorce Cause no. MCDC/E307/2023 until Parliament enacts a law recognizing the Code of Canon Law as it relates to personal and family law for persons professing the Holy Catholic religion.
(d) THAT The Honorable Attorney General be pleased to make regulation for the application of Catholic law regarding marriage pursuant to section 94(1) of the Marriage Act pending or in lieu of enactment by the National Assembly of appropriate legislation consistent with the Constitution.
(e) THAT pursuant to Article 261(6)(b) Parliament and the Attorney General be directed to take steps to ensure that legislation recognizing the Code of Canon Law as it relates to personal and family law is enacted, within a specified period, and to report the progress to the Chief Justice.
(f) THAT The Rules Committee created under the Civil Procedures Act and the Honorable Chief Justice be pleased to enact practice notes or procedures to give effect to the Marriage Act 2014 to enable its compliance to the Constitution of Kenya 2010 as regards Catholic law in marriage.
(g) THAT the Honorable Attorney General with the assistance of the Kenya Conference of Catholic Bishops be pleased to advise the Government of Kenya to negotiate a Concordat with the Holy See to implement the Code of Canon law as the personal and family for Catholics residing in the Great Republic of Kenya.
(h) Any other Orders the Court may seem fit.
17. The Petition is premised on the facts on the face of it which are that the Petitioner is challenging the constitutionality of the Marriage Act, 2014, arguing that the Act violates the religious freedoms of Roman Catholics by failing to recognize the indissoluble nature of Catholic sacramental marriage and the jurisdiction of the Catholic Church’s Code of Canon Law.
18. According to the petitioner, because the Catholic Church views marriage as an indissoluble sacrament and rejects civil divorce, forcing the Petitioner into civil divorce proceedings which were initiated by the 1 st Interested Party under Section 65 of the Marriage Act compels the petitioner to participate in an act antithetical to his religious beliefs.
19. The petitioner asserts that under Article 45(4) of the Constitution , Parliament has a non-discretionary mandate to enact legislation recognizing religious family laws and accordingly, its failure to recognize Catholic Canon Law and the Metropolitan Tribunal is a distinct constitutional violation.
20. The Petitioner seeks to have Sections 65, Sections 66(2), 66(6) and 73 of the Marriage Act, 2014 declared unconstitutional, null and void for permitting divorce and for failing to incorporate Catholic Canon Law grounds for annulment and demands that Catholic marital disputes be adjudicated exclusively by the Church’s Metropolitan Tribunal. He further alleges that there was no public participation conducted in the enactment of the Marriage Act thereby violating Article 118 of the Constitution.
Response to the Petition
21. In response to the Petition, the 2 nd Respondent, the national Assembly filed a Replying Affidavit dated 27 th October 2023, sworn by Samuel Njoroge, the Clerk of the National Assembly, urging this Court to dismiss the Petition based on several facets of the documents annexed to the Petition by the Petitioner.
22. It is deposed that the impugned legislation was first initiated as the Marriage Bill/the Marriage (Amendment) Bill No. 13 of 2013 and on 16 th July, 2013. That the Bill went through its First Reading and followed all constitutional procedures, including subsequent readings, public participation which invited submissions and memoranda via newspaper advertisements and proper presidential assent.
23. That the impugned law was passed in accordance with the Constitution and the National Assembly Standing Orders hence the National Assembly did not infringe any Article of the Constitution. That the law in question carries a strong presumption of constitutionality and should not be struck down just because it does not suit the Petitioner’s personal interests.
24. It is deposed that the Purpose of the Act is to unify the law and that before 2014, Kenya had a messy, fragmented system of marriage laws divided by religion. That the Act was designed to create a single, uniform legal framework, based on the 1967 Commission report by the Commission on the Law of Marriage and Divorce, which concluded that marriage and divorce are matters of state interest and that the state cannot abdicate this responsibility to religious institutions. That during the Committees’ deliberations, they considered the views of the Christian Churches and noted that they also recognize the state's right to regulate civil marriage.
25. It is averred that the Commission also recommended that no party should be allowed to divorce except by a decree of a court of competent jurisdiction and further that the Marriage Act does not force people to divorce but simply provides a legal option for dissolution when a marriage has irretrievably broken down under Sections 65 and 66 . Further, that the Act respects religion by requiring parties in Christian marriages to attempt mediation through their religious institutions under Section 64 of the Act, before filing for a legal divorce.
26. It is contended that freedom of religion is not absolute, in that, whereas Article 32 protects religious freedom, it can be limited under Article 24 (1) (d) of the Constitution to protect the rights and freedoms of others. That if every religion were allowed a free hand to dictate marital rules without a common legal baseline, it would result in societal disharmony. It is further deposed that the rationale for divorce in the law is to ensure conformity with International Human Rights regimes.
27. It is the 2 nd respondent’s averment that the right to marry is not the right to stay married. That the Constitution under Article 45 (3) explicitly anticipates that marriages can be dissolved and guarantees equal rights upon dissolution. Furthermore, that international human rights standards dictate that human dignity includes the right to exit an irretrievably broken marriage. This Court is urged to dismiss the petition because the Petitioner has failed to prove the impugned law is unconstitutional.
28. The parties canvassed the Petition by way of written submissions which were also highlighted orally in court.
The Petitioner’s Submissions
29. The Petitioner’s Submissions are dated 21 st November 2023 as highlighted on 22 nd April, 2026. He submits on the following issues: -
(1 Does this Court have the jurisdiction to entertain this matter, or is this matter justiciable before this Court?
(2 Does the Catholic Church have established laws that govern marriage, separation and the annulment of marriages?
(3 In enacting the Marriage Act 2014, did the National Assembly (“the NA”):
(a) Recognize marriages concluded under the system of religious, personal and family law of the Catholic Church? and
(b) Recognize the system of personal and family law adhered to by persons professing the Catholic religion?
(4 Are the marriages or system of laws of the Catholic Church that govern marriage inconsistent with the Constitution of Kenya 2010?
(5 By providing for the system of personal and family law adhered to by Muslims and not providing for the system of personal and family law adhered to by Catholics, does the Marriage Act 2014 fail to treat Muslims and Catholics equally, and is the Marriage Act 2014 discriminatory against Catholics?
(6 How should the Court address the legislative omission of the National Assembly?
(7 Would a divorce decree violate the Petitioner’s freedom from being compelled to act or engage in an act that is contrary to his belief or religion and also a violation of Article 10 on National Values; and would a divorce decree violate the Petitioner’s right to marry?
(8 Would an injunction against divorce be a violation of any rights of the 1 st Interested Party as provided for by the Bill of Rights?
30. On the first issue, the Petitioner counters the 2 nd Respondent, the National Assembly’s argument that the Marriage Act is protected by a presumption of constitutionality by arguing that that this presumption is rebuttable as determined by the Court of Appeal National Assembly of Kenya v Kina & another (Civil Appeal 166 of 2019) [2022] KECA 548 (KLR) and the High Court in S B M & another v Attorney General (Constitutional Petition No 21 of 2021) [2022] KEHC 13920 (KLR) where it is said to have been held that any legislation or decisions made by Parliament outside constitutional boundaries attract the court’s jurisdiction.
31. On the second issue, it is submitted that the Marriage Act entails a legislative omission and discrimination against Catholics yet Article 45 (4) of the Constitution mandates Parliament to pass laws recognizing marriages and family law systems adhered to under any religion or tradition, but that in this case, Parliament has not done so. Further submission is that instead, Parliament did not accept contributions from the Catholic Church during the public participation stage of the Bill preparation while it took contributions from the National Council of Churches of Kenya, the Anglican Church and the Methodist Church as demonstrated in the proceedings of the Committee dated 26 th March 2014 (exhibit ‘SN-5’ at page 114, para 1) annexed.
32. The petitioner submits that the Court of Appeal in The National Assembly of Kenya v Kina & Ano (supra) took judicial notice of the variance of the Catholic law relating to marriage with that of other Christian churches and the law of the land.
33. On the third issue, it is submitted that the Marriage Act generalizes Christian Marriages without recognizing the distinct laws of the Catholic Church while it accommodates Islamic personal law and even nuances within specific Muslim sects such as the Ismaili sect. That in this regard, the 2 nd Respondent ought to have accommodated the Catholic personal and family laws in the Act because it is distinctive from other Christian denominations.
34. The petitioner urges this Court to consider whether the Marriage Act adhered to constitutional fidelity as espoused by Mativo J. in Centre for Rights Education and Awareness & 2 others v Speaker the National Assembly & 6 others [2017] eKLR .
35. The petitioner further submits on the rights to religion and conscience versus divorce and asserts that under Catholic doctrine and the Code of Canon Law, a sacramental marriage is indissoluble and divorce is not recognized. He further submits that Article 45 (3) would appear contrary to Article 20 (3) (a) but that with the provisions of Article 259, the Court must find that if indeed the drafters of the Constitution intended to guarantee the right to divorce under the Bill of Rights, they would have expressly done so. The case of S B M & another v Attorney General (supra) , Babiarz v Poland (Application No. 1955/10) at the European Court of Human Rights and Cass R Sunstein, Legal Reasoning and Political Conflict (New York: Oxford University Press, 1996) were cited in support of that proposition.
36. The Petitioner additionally submits that the Marriage Act 2014, did not treat the Catholic religion and the Islamic religion equally while implementing Article 45(4) . That Parliament cannot provide any rational basis for this unequal treatment or differentiation, since both Catholic and Islamic religions have distinct and ancient laws that relate to marriage with the Catholic ones being more elaborate and developed. That accordingly, Parliament was aware that the provisions in Sections 65 and 73 of the Marriage Act 2014 did not satisfy the requirements of Article 45(4) of the Constitution as regards Catholic family law.
37. It is submitted that the apparent limitation by the Marriage Act 2014 of the rights of Catholics as provided by Article 45(4) is not specific in its intention to limit the rights of Catholics, that the limitation is invalid pursuant to Article 24(2)(a) and that the said limitation is not legitimate, thereby rendering the statute unconstitutional.
38. The Petitioner also cited the case of Wambui & 10 others v Speaker of the National Assembly & 6 others (Consolidated)) [2022] KEHC 10275 (KLR) on the need for holistic and purposive interpretation of the Constitution and a presentation from the Constitutional Court of Spain in XIV Conference of Constitutional Courts of Europe: The Problem of Legislative Omission in Constitutional Jurisprudence - Vilnius, May 2008 in proposing the annulment of the said sections of the Marriage Act.
39. The petitioner further proposes that Catholic marriages that have already been dissolved pursuant to Section 65 of the Marriage Act should be allowed to retain their nullified status in a bid to divorce unconstitutionality from nullity.
40. The Petitioner contends that being forced to participate in civil divorce proceedings violates his freedom of religion and conscience under Article 32 of the Constitution . He argues that issuing a divorce decree forces a violation of lifelong sacred vows, which undermines national values of human dignity, transparency, accountability and integrity under Article 10 of the Constitution.
41. It is also submitted further that because the Catholic Church bars divorced individuals from remarrying, a civil divorce would permanently strip the Petitioner of his right to marry in the future under his faith.
42. The Petitioner submits that neither the Kenyan Constitution nor comparative international jurisprudence guarantees a right to divorce. He posits that by choosing a Catholic marriage rite, both parties explicitly waived any right to seek a divorce. That further, the Petition should be allowed because Parliament’s omission in Sections 65 and 73 of the Marriage Act is invalid pursuant to Article 2(4) of the Constitution and the said Catholic law on marriage is the law of the land for marriages celebrated under Catholic rites.
43. The Petitioner proposes that, to resolve the legislative gap without creating a constitutional absurdity or requiring the wholesale dissolution of the Marriage Act, the Court declares Sections 65 and 73 unconstitutional specifically for marriages celebrated under Catholic rites; decouples unconstitutionality from nullity, meaning, previous Catholic marriages already dissolved under these sections would retain their status; declare that disputes regarding Catholic marriages must be governed by Catholic family law under the Code of Canon Law; and issue an order of mandamus compelling the Attorney General to draft regulations to operationalize Catholic family law under the Marriage Act.
The 2 nd Respondent’s Submissions
44. The 2 nd Respondent’s (The National Assembly) filed written submissions dated 29 th January 2025. Counsel highlights three issues for determination being:
i. Whether adequate public participation was conducted in the enactment of the Marriage Act;
ii. Whether the provisions of sections 65, 66(2), 66(6) and 73 of the Marriage Act, 2014 are unconstitutional and
iii. Whether the impugned provisions compel persons to undergo a divorce .
45. On the first issue, the 2 nd respondent submits that the public participation conducted was adequate and non-discriminatory because the National Assembly’s Departmental Committee on Justice and Legal Affairs formally invited public views through a print newspaper advertisement on 8 th August 2013 which afforded the public reasonable opportunity to express their views on the Marriage Bill as required by the law and espoused in the Constitutional Court of South Africa’s Judgment in Minister of Health and Another v New Clicks South Africa (Pty) Ltd and Others (CCT 59/2004) [2005] ZACC at para 630 and Law Society of Kenya vs. The Attorney General and 10 Others Petition No. 3 of 2016 at para 22 .
46. It is also submitted that the Memoranda were received and considered from the general public and various faith groups. That no discrimination occurred against the Catholic Church contrary to the assertions of the Petitioner because the law requires taking reasonable steps to facilitate public participation while appreciating that, not every single person or specific entity must be orally heard. Counsel submits that the Petitioner merely alleged a lack of public participation but failed to provide any supporting evidence.
47. On the second issue, it is submitted that th
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