The High Court in Kitale will on September 18 make a critical ruling on whether a constitutional petition challenging the monogamous framework of Christian marriages in Kenya warrants hearing by a panel of three judges.
The petition was filed by Bonface Ndura, who, through his lawyer Wanyama Mutaki, is seeking the empanelment of a multi-judge bench to deliberate on what he describes as a matter of profound legal and public significance.
Ndura argues that the case meets the threshold for such a bench as outlined in Article 165(4) of the Constitution, citing the complexity of the legal issues involved, the far-reaching constitutional implications, and the strong public interest component. He maintains that a single judge should not determine such weighty questions, which touch on religious freedom, equality, and the right to family life.
Central to the petition is a challenge to provisions of the Marriage Act and Penal Code, particularly Section 171, which criminalizes bigamy. Ndura contends that this provision, when applied to Christian marriages, discriminates against Christian men by denying them the option of polygamy — a choice permitted in Islamic and customary marriages.
He claims this legal disparity violates several constitutional protections, including Article 27 (equality and freedom from discrimination), Article 32 (freedom of conscience and religion), Article 36 (freedom of association), and Article 45 (right to marry and found a family).
The petitioner also criticizes the Christian Religious Education (CRE) syllabus developed by the Kenya Institute of Curriculum Development (KICD), arguing that it imposes a narrow, monogamous interpretation of Christian doctrine and ignores more pluralistic views held by some Christian denominations.
Ndura has opposed the enjoinment of Parliament in the proceedings, stating that the Attorney General is adequately placed to defend the impugned laws. He argues that Parliament becomes functus officio — having discharged its legislative role — once a law is enacted, citing judicial precedent to support his position.
During a mention of the case on July 28, Justice Robert Limo said the court will issue a ruling in September on whether the case meets the legal standard for referral to a larger bench.
Ndura believes the petition raises novel constitutional issues that have not been previously addressed by Kenyan courts. If the High Court agrees to form a three-judge bench, the case could evolve into a landmark moment for Kenya’s constitutional interpretation of religious freedom, marital rights, and state regulation of faith and family life.