The High Court in Kitale has declined a request to empanel a three-judge bench to hear a constitutional petition challenging the legality of Kenya’s bigamy laws.
Presiding over the matter, Justice Robert Limo ruled that the petition, while raising novel legal questions and matters of public interest, did not meet the constitutional threshold required for referral to the Chief Justice for the constitution of a larger bench.
The petition, which interrogates aspects of Kenya’s law on Christian marriage and raises broader concerns about the country’s Christian Religious Education curriculum, was brought forward by a petitioner who argued that the complexity and public significance of the case warranted the attention of a three-judge panel.
Among the key prayers made by the petitioner were that the matter be certified as raising substantial questions of law and that it be escalated to a larger bench for determination.
The petitioner also faulted the current Christian Religious Education curriculum, calling for a complete overhaul in light of the issues raised.
However, Justice Limo noted that while the issues presented are indeed untested in existing jurisprudence and may be considered novel, the legal threshold for certifying the matter as one requiring multiple judges had not been met.
“In the absence of sufficient justification, and considering the limited judicial resources available, it is not practical to refer this matter to the Chief Justice for the empanelment of a bench,” ruled Justice Limo.
The Court also observed that only the first respondent had submitted a response in the matter, with no appearance or submissions from the Attorney General or other parties.
This lack of engagement, the Court noted, made it even more difficult to justify the need for a multi-judge panel at this stage.
Justice Limo emphasized that the Constitution empowers any High Court judge to hear and determine constitutional petitions within their jurisdiction.
Ndura, who is also the author of Polygamists Will Also Go to Heaven, contends that the current legal framework, rooted in monogamous Christian marriages, violates the religious freedoms of those who interpret the Bible as supportive of polygamy.
"Key provisions in the Penal Code and the Marriage Act unfairly impose a restrictive model of marriage on Christians, while other religious communities, such as Muslims, are legally allowed to practice polygamy," he argued.
At the center of Ndura’s petition is a challenge to Section 171 of the Penal Code and Sections 6, 8, 9, and 11 of the Marriage Act, which enshrine monogamy in Christian marriages.
According to Ndura, these provisions not only violate Article 32 of the Kenyan Constitution, which protects freedom of religion and belief, but they also infringe upon Article 45, which guarantees the right to marry and found a family based on personal convictions.
Ndura points to biblical figures such as Abraham, Jacob, and King Solomon, who practiced polygamy without divine condemnation, as evidence that polygamy has historical and theological roots in Christianity.
"The modern legal imposition of monogamy is a colonial relic that contradicts traditional Christian teachings," the environmental conservationist argues in his petition.
He asserts that banning polygamy contributes to rising rates of single parenthood and divorce in Kenya. He views polygamy as a solution to these social challenges, offering what he calls a “more stable family structure” in certain communities.
The businessman seeks to have these contested legal provisions declared unconstitutional, allowing Christians who support polygamy to marry more than one wife legally.
"This move would create legal parity between Christian and Muslim communities, where polygamy is already recognized," he says.
The case is scheduled for mention on 30th October 2025, at which point further directions will be given.
The petitioner retains the right to appeal the decision or contest the ruling through the appropriate legal channels.