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Kitale High Court Set to Deliver Judgment in Petition Seeking Recognition of Polygamous Christian Marriages

 

The High Court in Kitale is set to give directions on the delivery of judgment in a petition seeking recognition of polygamous Christian marriages under Kenyan law, following submissions by the Attorney General urging the court to dismiss the case.

The Attorney General, through State Counsel Lotiir E. Henry and Deputy Chief State Counsel Joyce Chilaka, has opposed the petition filed by 80-year-old Bonface Ndura Koimburi, arguing that he has failed to demonstrate any constitutional violation arising from provisions of the Marriage Act, 2014.

In their submissions before Justice Robert Limo, the State Counsel maintained that the petitioner was seeking to legitimise a personal preference rather than address an infringement of constitutional rights.

“What is before you is a figment of imagination. It is not a violation of the law. It is an idea that the petitioner had conceived and wants the court to legitimise,” Lotiir told the court.

The Attorney General argued that Koimburi had failed to demonstrate how the law discriminates against Christians or any religious community, questioning his attempt to present an individual preference as a constitutional grievance affecting the wider Christian community.

The State further maintained that Parliament acted within its constitutional mandate under Article 45(4) when it enacted the Marriage Act in 2014, which recognises five forms of marriage and expressly classifies Christian marriages as monogamous under Section 6.

The State Counsel argued that the provision did not introduce a new restriction but reaffirmed the existing legal position governing Christian marriages.

On the alleged violation of constitutional rights, Chilaka submitted that the petitioner had failed to identify a specific grievance or demonstrate an actual infringement of his rights.

Koimburi had cited Articles 27, 32, 36 and 45 of the Constitution, which guarantee equality and freedom from discrimination, freedom of conscience and religion, freedom of association and family rights.

The Attorney General's representatives also challenged the petitioner's reliance on Section 171 of the Penal Code, which criminalises bigamy, arguing that he had not demonstrated that he first exercised his constitutional right to petition Parliament under Article 119.

They further opposed his request to have marriage teachings in the national education curriculum reviewed, maintaining that the relevant institution had the authority to determine its syllabus.

However, Koimburi's lawyer, Mutaki Wanyama, urged the court to allow the petition, arguing that his client was entitled to challenge the law in his individual capacity without necessarily representing an entire religious denomination.

Wanyama maintained that Parliament exceeded its constitutional mandate by defining Christian marriages as monogamous, arguing that Article 45(4) required the recognition of different marriage systems but did not give Parliament authority to prescribe religious practices.

He also questioned why Christian, Hindu and civil marriages were classified as monogamous while Islamic and customary marriages were recognised as potentially polygamous.

The lawyer further argued that the restrictions violated his client's freedom of thought, belief and opinion, while Section 171 of the Penal Code exposed individuals seeking to contract another marriage to criminal prosecution.

The petition also challenges aspects of how marriage is taught in Kenya's education curriculum, with Koimburi arguing that the subject should accommodate different religious and cultural perspectives.

Koimburi, a retired teacher, conservationist and private school proprietor, has authored two books, Polygamists Will Go to Heaven and Jesus Does Not Oppose Polygamy, in which he advances his position on polygamous Christian marriages.

The Attorney General has asked the court to dismiss the petition without an award of costs.

The matter is scheduled for mention on January 21, when the High Court is expected to give directions on the delivery of its judgment following the conclusion of submissions by the parties.


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