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SBM & another v Attorney General (Constitutional Petition 21 of 2021) [2022] KEHC 13920 (KLR) (19 October 2022) (Judgment)

Reported
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SBM & another v Attorney General (Constitutional Petition 21 of 2021) [2022] KEHC 13920 (KLR) (19 October 2022) (Judgment)
Citation
SBM & another v Attorney General [2022] KEHC 13920 (KLR)
Media Neutral Citation
[2022] KEHC 13920 (KLR)
Court
High Court
Court station
High Court at Eldoret
Outcome
Allowed
Case number
Constitutional Petition 21 of 2021
Judges
RN Nyakundi
Judgment date
19 October 2022
Language
English
Type
Judgment
Collections
Date published
01 December 2022
Case action
Judgment
Court division
Constitutional and Human Rights
Filing county
Uasin Gishu
Order
a). Petition allowed b). the costs of this petition be borne by each party.
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1.What is before this court is a petition filed by the petitioners on August 19, 2021. The petitioner seeks the following orders;1.That this court be pleased to issue a declaration that section 73(2) of the Marriage Act is unconstitutional and null.2.That the court be pleased to issue an order that each party bear its costs.
2.The petition is based on the grounds in the supporting affidavit. The petition is founded on articles 3,22,27,32,45,48,159,165,258 and 259 of the Constitution.
3.The petitioners contend that by purporting to exclude or prevent the 1st petitioner from seeking nullification of marriage beyond one year and limiting her entitlement to nullification of marriage to within a year, section 73(2)(a) of the Marriage Act contravenes her right to access to justice under article 48 of the Constitution and her right to equal benefit and protection of the law under article 27 of the Constitution. Further, the petitioners contend that section 73 of the Marriage Act forces her to continue being in a marriage founded on lies and misrepresentation which violates her right to conscience, thought and belief as safeguarded under the Constitution. the petitioners also hold the position that section 73(2) contravenes her right to free consent or will under article 45 of the Constitution.
4.It is the petitioners’ case that section 73(2)(b) of the Marriage Act fails to protect the institution of marriage. That if a fundamental ground for annulment that goes to the root of marriage exists there should be no statutory limitation for annulment. Entering and exiting the marriage institution should be on free will and voluntary. They further contended that the ambiguity of section 73(2) puts its constitutionality on the spot. They cited the case of Silver & another v United Kingdom A1 (1983) in support of their submissions.
5.The petitioners contend that section 73(2)(a) of the Marriage Act contravenes article 48 of the Constitution that provides for the right to access to justice. The provision condemns the spouse to eternal silence. The 1st petitioner entered into a civil marriage with the spouse and he discovered that he was still in an undissolved customary marriage and with children. She could not seek annulment in the lower court and it is therefore clear that the impugned section denied her from accessing the statutory remedy of annulment. She cited the cases of CK through Ripples international as her guardian & next friend & 11 others v Commissioner of Police/Inspector General of the National Police Service & 3 others (2013) eKLR and Apollo Mboya v Attorney General & 2 others [2018] eKLR. They also cited the case of Tulero Ole Kina v Attorney General & another.
6.The petitioners’ case is that the right to equality before the law and non-discrimination as per article 27 of the Constitution is contravened by6 section 73(2)(a) of the Marriage Act. It does this by purporting to exclude the 1st petitioner from accessing the statutory remedy of annulment beyond one year. Further, that it also violates her right to conscience, thought and belief as safeguarded under article 32 of the Constitution. it also violates the right to free consent to and within marriage as it forces her to continue being in a marriage she wants to annul.
7.The 1st petitioner’s case is that there is no statutory provision that provides an avenue to seek leave to file such a petition outside the year envisaged by section 73(2)(a) of the Marriage Act which is an absurdity that needs rectification through the high court.
8.The petitioners compared and contrasted the provisions of different jurisdictions. In the USA, the states of Ohio, Washington and California do not impose statutory limitations when petitioning for annulment. Same as for the United Kingdom which under the Matrimonial Causes Act there is no statutory limitation to institute a petition of annulment on grounds that voids marriage under section 11 of the act. They also contrasted the Indian Hindu Marriage Act which provides statutory timelines in which the petition to annul can be instituted within. It however does not provide a timeline for bringing a petition to annul void marriages. They concluded their comparison with Uganda where the Divorce Act of Uganda does not provide a statutory limitation for instituting a petition for annulment of marriage.
9.The petitioners’ position is that the issues raised in the petition affects the public generally. There is an upsurge of domestic violence in the country and the law bars spouses to enter and exit the marriage institution is a recipe for social disintegration and violence.
10.The petitioners cited the case of Ndyanabo v Attorney General and submitted that the evidence adduced rebuts the presumption of constitutionality of section 73(2) of the Marriage Act. They reiterated that the law forces her to stay in a marriage against her free will and conscience, that the section denied her from accessing the remedy of annulment and denies her equal treatment before the law. They cited the case of Law Society of Kenya v Attorney general & another (2019) eKLR and the memorandum and objectives of the act in support of the submission that the objection of the Marriage Act was to consolidate and harmonize statutes on divorce and marriage. Further, that it has failed to achieve its intention to minimize the complexity, unpredictability and inefficiency occasioned by the current multiplicity of laws on the subject. They maintained that the court is invited to find that there is ample evidence to suggest that section 73(2)(a) of the Marriage Act.
11.The petitioners filed supplementary submissions and cited the case of Stephen Ngila Nthenge v Republic HCCRA E013 of 2021 (unreported) and submitted that when article 45(1) of the Constitution mandates the state to protect the institution of marriage it envisages two things. First, the law enacted to protect the institution must appreciate societal dynamics and secondly, the law must conform to the constitution. when the petitioners question the constitutionality of restrictions of the law, the burden shifts to the respondent. it is the burden of the respondent to demonstrate how the same are constitutional.
12.The Marriage Act provides for different remedies to different contexts. Similarly, the grounds for these remedies differ fundamentally. They cited sections 66(2) and 73(1) of the Marriage act submitted that annulment and divorce are different and parallel remedies. Section 66 of the Marriage Act does not provide for alternative remedies for petitioners restricted from instituting annulment proceedings outside one year pursuant to section 73(2) of the Act.
13.The respondents cited the case of Council of County Governors v inspector General of National Police Service & 3 others [2015] eKLR and the case of Federation of Women Lawyers(FIDA) v Attorney General & another [2018] eKLR and submitted that section 73(2)(b) of the Marriage Act is constitutional and enjoys the presumption of constitutionality unless and until the petitioners discharge their duty of proving the unconstitutionality of the said section. The petitioners have not shown that the time frame set by section 73 is unconstitutional.
14.The respondents set out the procedure to be followed by parties seeking to enter into a civil marriage and submitted that the procedure is provided to ensure that even though parties are allowed to enter into a marriage based on free consent, the registrar shall only be in a position to register the marriage based on the information given. It is assumed that all the parties making the application for civil marriages have exhausted all doubts as to the capacity of the other party to enter into a civil marriage. Parliament in passing the act was aware that individuals in their natural form are deceitful and private and at times a party night have undergone their due diligence on their soon to be partner but failed to find the other party is already in another union thus is unable to contract another marriage under law. Parliament thought it was wise to allow the party to annul the marriage but only under certain conditions set out in section 73. It thought that it is a long period for one to discover certain unknown facts and give room to the discovering party to annul the marriage.
15.The reason for the limitation is found under article 45. It cited the case of Council of County Governors v Attorney General & another [2017] eKLR and submitted that the limitation is necessary to give effect to article 45 of the constitution and to ensure that the institution of marriage is recognized, preserved and respected as an institution and protected from indolent and deceitful parties who will conceal material facts from the registrar only for them to petition for annulment at their own whims and pleasures.
16.It is the respondent’s case that where a party fails to satisfy conditions set by section 73 seeking annulment, the act has provided other avenues within which the party may seek recourse to terminate the marriage. The 1st petitioner has chosen to undertake the other avenues and is awaiting determination. Further, that the courts have wide discretion to expand timelines set by legislation and all the petitioner has to do is to make an application and explain the reasons why the court should exercise its discretion to expand time.
17.The petitioners have not shown any plausible evidence that her rights had been violated by the impugned section. They have not met the threshold warranting the issuance of the orders sought. The respondent relied on the case of Council of County Governors v Attorney general & another [2017] eKLR. The petition should be dismissed and each party should bear their own costs.
Analysis and Resolution
18.The parties having canvassed their side of the bargain, it is now my singular duty to delve into the issues raised by the petitioner as countermanded by the respondent. To start with I dare say that approaches and cannons of constitutional interpretation in Kenya are crystal clear as expressly stated under article 259 of the Constitution. The discussion in regard to this petition would proceed by pairing the principal approaches in article 59 with their specific sources of constitutional meaning. But that approach isn’t the only one for I take the view that interpretation of the constitution covers the following controlling dichotomy:a.Plain words of the constitutional document, being the construction and deconstruction surrounding textualism.b.Current social consensus on what the words and phrases mean in the impugned provisions of the statute and the fusion approach in the constitution.c.The nature of things the words refer to best understanding of the concepts embodied the words of the constitution and by the manifest in the referenced statute, as is the case with the petitioner. That set of identifying ends to explore the constitutional provisions with another identifiable conflict in the statutory provisions is what one will call the philosophic perspective of interpretation.d.The intentions or original meanings of framers/or founding generation of either the constitution text or the impugned statutes. That is the major precise of originalism. This original approach identifies the middle position presumptive of between concrete and abstract of the level of abstraction at which one conceives and characterises constitution provisions.e.The other source of constitutional interpretation is typically in lines of decisions made by the superior courts normally described as the jurisprudential/doctrinal approach.f.It follows in this later fidelity to the constitution by judges Sunstein had this to say “Any approach to the founding document must be perfectionist in the sense that it attempts to make the document as good as it can possibly be. Thayerism is a form of perfectionism; it claims to improve the constitutional order. Originalism, read most sympathetically, is a form of perfectionism; it suggests that constitutional democracy, properly understood, is best constructed through originalism. Minimalism is a form of perfectionism too; it rejects Thayerism and originalism on the ground that they would make the constitutional system much worse. It would appear that the debate among Thayerians, originalists, minimalists, and perfectionists must be waged on the perfectionists’ own turf. And if this is so, perfectionists are right to insist that any approach to the constitution must attempt to fit and justify it. Perhaps the alternative to perfectionism are all, in one or another sense, perfectionist too.” See Cass R Sunstein, Legal Reasoning and Political Conflict (New York: Oxford University Press, 1996).
19.Again perhaps and more interesting on constitutional interpretation is the embodiment of the sovereignty principle. To this extent the concept of sovereignty is a characteristic manifested within the constitutional structure of the state to make it possible for institutions to function effectively and defend their mandate within the Constitution.
20.The purpose of separation of powers is to protect the liberty of the individual by making tyrannical and arbitrary state action more difficult. In our own constitution under chapter 8, 9 & 10 power is divided between the executive, legislature and the judiciary branches with each arm checking the other, save for the characteristics of independence to facilitate functionality a kind of oversight for sustainability of the rule of law. This consideration points at some level of prerequisite of legitimate functional independence. There would be therefore danger in approaching the interpretation of the constitution as part of the duty of the court to encroach into the realm of the legislature or executive without compelling and substantive cause. Those are the competing demands that must be present and as so permitted the suitability of any petition challenging the constitutionality of our statute or its provisions as enacted by the legislature.
21.At present however, I acknowledge that our constitution itself under article 258 as read conjunctively exercises a constrain on what interpreters can say about it. Therefore, a duty of fidelity to the constitution calls upon the courts to employ that good process in good faith and it’s psychologically possible judicial fiat. That is to accept this duty and to act according to the instrumentality reading of the Constitution as a whole.
22.I hasten to add that article 20,22,23,24, 258 & 259 of the Constitution truly represents a result oriented objectives to address the concerns raised in this petition. It is not lost that the articles entitle a court of law to interpret the provisions under the bill of rights so as to promote the principles of governance and values as expressly stated in article 10 of the Constitution. The key touchstone being to give effect to the existence of an open and democratic society based on freedom, human dignity, equality, equity, human rights and fundamental justice.
23.The rights in question which are the core of this petition are as premised in article 27, 32 & 45 of the constitution. The position as reflected in the same Connstitution is that a right may be limited by law depended upon the following condition precedents.a.The nature of the right or fundamental freedoms.b.The importance of the purpose of the limitation.c.The nature and extent of the limitations.d.The need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others, ande.The relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.(See article 24 of the Constitution)
24.In the timeless words of Justice Kentridge in R –v- Big M Drug Mart Ltd 18 DIR 321, 359-60 (1985) where he stated as follows: “That the meaning of a right or freedom guaranteed by the charter was to be ascertained by an analysis of the purpose of such a guarantee, it was to be understood in other words in the light of the interests it was meant to protect.”
25.It is inescapable to observe that under article 27 of the Constitution every person within our borders shall have the right to equality before the law and to equal protection of the law. As a consequence, no person shall be unfairly discriminated against directly or indirectly on any of the following grounds; race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth. It is therefore in the context of this petition for the court to establish whether there is a significant impact upon the rights of the petitioner in the chosen provisions of the Marriage Act. Can one say that parties to a marriage union are denied equal enjoyment of their human rights, in particular by virtual of the wording and protocol adopted in the impugned provisions.
26.What is the reach or scope of the right under article 27 as read with article 45 of the Constitution within their measures to achieve substantive equality?
27.It is unassailable that the approach to interpreting the fundamental rights and freedoms in the bill of rights by this court has to take the model of looking at the constitution as a whole which is purposive and generous giving effect to constitutional values including substantive equality. In reaction to the inequality or discrimination advanced by the petitioner the court in Prinsloo –v- Van Der Linde [1997] ZACC 5; “It is convenient, for descriptive purposes, to refer to the differentiation presently under discussion as ‘mere differentiation’. In regard to mere differentiation the constitutional state is expected to act in a rational manner. It should not regulate in an arbitrary manner or manifest ‘naked preferences’ that serve no legitimate government purpose for that would be inconsistent with the rule of law and the fundamental premises of the constitutional state. The purpose of this aspect of equality is, therefore, to ensure that the state is bound to function in a rational manner.”
28.Nonetheless, Harksen –v- Lane NO [1997] ZACC 12; 1998 (1) SA 300(CC); 1997(11) BCLR 1489(CC) offers the following assessment on the attributes of discrimination; “Does the provision differentiate between people or categories of people? If so, does the differentiation bear a rational connection to a legitimate government I purpose? If it does not then there is a violation of section 8(1). Even if it does bear a rational connection, it might nevertheless amount to discrimination.
29.Does the differentiation amount to unfair discrimination? This requires a two-stage analysis:i.Firstly, does the differentiation amount to ‘discrimination? If it is on a specified ground, then discrimination will have been established. If it is not on a specified ground, then whether or not there is discrimination will depend upon whether, objectively, the ground is based on attributes and characteristics which have the potential to impair the fundamental human dignity of persons as human beings or to affect them adversely in a comparably serious manner.ii.If the differentiation amounts to ‘discrimination’, does it amount to ‘unfair discrimination’? If it has been found to have been on a specified ground, then unfairness will be presumed. If on an unspecified ground, unfairness will have to be established by the complainant. The test of unfairness focuses primarily on the impact of the discrimination on the complainant and others in his or her situation. If, at the end of this stage of the enquiry, the differentiation is found not to be unfair, then there will be no violation of section 8(2).“Does the provision differentiate between people or categories of people? If so, does the differentiation bear a rational connection to a legitimate government purpose? If it does not then there is a violation of section 8(1). Even if it does bear a rational connection, it might nevertheless amount to discrimination.”
30.The prism of the instant petition is on the contention that section 73(2) of the Marriage Act violates the rights to equality and non-discrimination, conscience and thought, free consent to and within marriage and access to justice as enshrined in article 27,32,45 & 48 of the Constitution. There is need for the petitioner to show that the provision in question has a discriminatory effect or intended to discriminate.
31.The next aspect to be inquired into is on account whether the petitioner’s position in society shows patterns of discrimination. In this regard the petitioner stresses that the statutory vesting of one year for a petition to be made for annulment of the marriage is unconstitutional and discriminatory. The ground of unfair discrimination is the one year limitation period from the perspective of the petitioner to seek for annulment of her marriage with the respondent. The petitioner also elaborates that even the saving clauses permitted to file the petition at the expiry of one year fails to capture the ethos of the Constitution on justice, expedition and preservation on morality. That in the event the requirements of substantial material factors are not met the claim brought under annulment may not stand a chance of a remedy to the aggrieved party. It is not lost that such a restriction is likely to subject one to physical, mental and social predicament for a conduct which is not her own making. It is permissible for me to state that the question whether the marriage is void or voidable is for the Kenyan Law to answer by a duly constituted independent tribunal or court within the provisions of article 50(1) of the Constitution. The bar of one year is a characteristic defect which I had to ask myself whether it ought in these circumstances to be sanctioned as being unconstitutional to the extent of its limitation to access courts in a timely manner. Taking the queue from the petition if the defect alleged in this petition was the capacity to marry by the alleged husband, it is plausible that the court seized of jurisdiction over the cause of action should not be limited to remedy the voidable marriage.
The Burden of Proof Threshold
32.The principle established in the Anarita Karimi Njeru -vs- Republic [1979] eKLR was that a Constitutional petition should set out with a degree of precision the petitioner’s complaint, the provisions infringed and the manner in which they are alleged to be infringed. The same was reaffirmed in the Court of Appeal case of Mumo Matemo -vs- Trusted Society of Human Rights Alliance & 5 others [2013] eKLR when the Court at paragraph 44 of the judgment stated as follows: -"(44)We wish to reaffirm the principle holding on this question in Anarita Karimi Njeru (supra). In view of this, we find that the petition before the High Court did not meet the threshold established in that case. At the very least, the 1st Respondent should have seen the need to amend the petition so as to provide sufficient particulars to which the respondents could reply. Viewed thus, the petition fell short of the very substantive test to which the High Court made reference to. In view of the substantive nature of these short comings, it was not enough for the superior court below to lament that the petition before it was not the “epitome of precise, comprehensive or elegant drafting, without remedy by the 1st respondent”
33.Before a constitutional considers whether any legislative action survives strict scrutiny it must be sure that the provisions of a statute actually impairs the right complained of by the petitioner. This is to take into account that the fundamental rights enshrined in the bill of rights guarantees personal autonomy unless otherwise limited by the same constitution. Therefore, the one attacking the constitutionality of a statute or a provision bears the burden of sustaining it by proving it’s unconstitutionality. It is not lost that the Kenyan constitution presupposes that all men are possessed of equal and inalienable natural rights which include the right to life in article 26, liberty and dignity in article 29, right to equality before the law and free from discrimination in article 27, right to access court in article 48, right to a fair administrative action in article 47, right to marry and entitlement to equal rights at the time of the marriage in article 45(3), right to access information held by another person required for the exercise or protection of any right or fundamental freedom in article 35(1b), and right to freedom of conscience and belief as provided for all in our Constitution.
34.It is presumptive that these rights are provided for in pursuit of happiness. This identified aspiration include a woman’s right to make decisions about the subsistence and survival rights, including whether to continue to consummate the marriage union so entered with her spouse. That burden of proof is vested with the petitioner who alleges that there has been a violation or infringement of the constitutional provisions to impact enjoyment of the set fundamental rights.
Whether section 73(2) of the Marriage Act, 2014 is Unconstitutional.
35.In determining whether a section is unconstitutional, courts must exercise caution in approaching a decision to make such a declaration. There are settled principles that guide the interpretation of the constitution and legislation. In the case of Institute for Social Accountability & another v National Assembly & 4 others [2015] eKLR the court laid down the relevant principles as follows at paragraphs 56 to 60;"First, this court is enjoined under article 259 of the Constitution to interpret the Constitution in a manner that promotes its purposes, values and principles, advances the rule of law, human rights and fundamental freedoms in the Bill of Rights and that contributes to good governance. In exercising its judicial authority, this court is obliged under article 159(2)(e) of the Constitution to protect and promote the purpose and principles of the Constitution.Second, there is the general presumption that every Act of Parliament is constitutional and the burden of proof lies on any person who alleges otherwise (see Ndyanabo v Attorney General of Tanzania [2001] EA 495). We therefore reiterate that this Court will start by assuming that the CDF Act 2013 is constitutional and valid unless the contrary is established by the petitioners.Third, in determining whether a Statute is constitutional, the court must determine the object and purpose of the impugned statute for it is important to discern the intention expressed in the Act itself (see Murang’a Bar Operators and another v Minister of State for Provincial Administration and Internal Security & others Nairobi Petition No 3 of 2011 [2011] eKLR, Samuel G Momanyi v Attorney General & another (supra)). Further, in examining whether a particular statutory provision is unconstitutional, the court must have regard not only to its purpose but also its effect. The Canadian Supreme Court in the R v Big M Drug Mart Ltd, [1985] 1 SCR 295 enunciated this principle as follows;Both purpose and effect are relevant in determining constitutionality; either an unconstitutional purpose or an unconstitutional effect can invalidate legislation. All legislation is animated by an object the legislature intends to achieve. This object is realized through impact produced by the operation and application of the legislation. Purpose and effect respectively, in the sense of the legislation’s object and its ultimate impact, are clearly linked, if not indivisible. Intended and achieved effects have been looked to for guidance in assessing the legislation’s object and thus the validity.Fourth, the Constitution should be given a purposive, liberal interpretation. The Supreme Court In re the Matter of the Interim Independent Electoral Commission Constitutional Application (supra) at para 51 adopted the words of Mohamed A J in the Namibian case of State v Acheson 1991(20 SA 805, 813) where he stated that;"The Constitution of a nation is not simply a statute which mechanically defines the structures of government and the relationship government and the governed. It is a mirror reflecting the “national soul” the identification of ideas and .... aspirations of a nation, the articulation of the values bonding its people and disciplining its government. The spirit and tenor of the Constitution must, therefore preside and permeate the process of judicial interpretation and judicial discretion."Lastly and fundamentally, it is the principle that the provisions of the Constitution must be read as an integrated whole, without any one particular provision destroying the other but each sustaining the other (see Tinyefuza v Attorney General of Uganda Constitutional Petition No 1 of 1997 (1997 UGCC 3))."
36.Through the language in section 73(2) of the Marriage Act the drafters acknowledge that the parties to a marriage union have fundamental rights that pre-existed the formation of the marriage. The aforesaid rights as outlined above found their way to the bill of rights and they are natural and inalienable, unless the language of the constitution says so. The court of Appeal in Seventh Day Adventist Church East Africa Limited –v- Minister for education & 3 others (2017) eKLR was on point as herein stated that:"While article 19(3)(c) recognizes that the rights and fundamental freedoms in the Bill of Rights are only subject to the limitations contemplated in the Constitution, article 25 identifies only four rights and fundamental freedoms that cannot be limited. It follows that by article 24 the rest of the rights and fundamental freedoms under the Bill of Rights are enjoyed and guaranteed subject to strict terms of limitations.First, it must be demonstrated that the limitation is imposed by legislation, and even then only when it is shown that the limitation is reasonable and justifiable in an open democratic society. Further it must be based on dignity, equality and freedom, taking into consideration the nature of the right or fundamental freedom sought to be limited, the importance of the purpose of the limitation, its nature and extent, the enjoyment by others of their own rights as well as a consideration whether there are less restrictive means to achieve the purpose.The limiting law must be clear enough and devoid of ambiguity, for if a guaranteed constitutional right is to be limited, the limitation must be specific enough for the citizen to know the nature and extent of the limitation, his or her rights and obligations under the right as limited and the law supplying the limitation must be easily accessible to the citizen.”
37.In the same context the court in Abdi Hussein Abdi & 3 others v The Independent Electoral and Boundaries Commission [2017] eKLR, the Learned Judge held as follows:- “The Constitution must broadly, liberally and purposively be interpreted so as to avoid the ‘austerity of tabulated legalism’ and so as to enable it to continue to play a creative and dynamic role in the expression and the achievement of the ideals and aspirations of the nation, in the articulation of the values bonding its people and in disciplining its Government and its organs.”
38.In the matter of the Principle of Gender Representation in the National Assembly and the Senate the court held that: “Certain provisions of the Constitution of Kenya have to be perceived in the context of such variable ground situations, and of such open texture in their scope for necessary public actions. A consideration of different constitutions is highly legalistic and minimalistic, as regards express safeguards and public commitment. But the Kenya Constitution fuses this approach with declarations of general principles and statements of policy. Such principles or policy declarations signify a value system, an ethos, a culture, or a political environment within which the citizens aspire to conduct their affairs and to interact among themselves and with their public institutions. Where a constitution takes such a fused form in its terms, we believe, a court of law ought to keep an open mind while interpreting its provisions. In such circumstances, we are inclined in favour of an interpretation that contributes to the development of both the prescribed norm and the declared principle or policy; and care should be taken not to substitute one for the other. In our opinion, the norm of the kind in question herein, should be interpreted in such a manner as to contribute to the enhancement and delineation of the relevant principle, while a principle should be so interpreted as to contribute to the clarification of the content and elements of the norm.”
39.The letter and spirit of the marriage contract is the right to personal autonomy on reproductive and sexual rights which precludes the other spouse from subjecting another to torture, mental anguish, emotional stress, cruelty, servitude, false misrepresentation and non-disclosure of material facts of a very decisive character for one to make an informed decision affecting his or her fundamental rights. Those decisions include whether to continue to consummate and sustain a void or voidable celebrated marriage union.
40.Although not absolute any conduct by one party against another which go to the core of the fundamental rights under chapter 4 of our Constitution in so far as a marriage agreement is concerned calls for an immediate remedy under article 23 of the Constitution. The reading of the constitution lays emphasis on the right to equality, human dignity, conscience, thought, security, fundamental freedoms and as entrenched can only be limited by the same Constitution.
41.From a comparative jurisprudence in Pennsylavania Supreme Court stated in the case of Commonwealth – v- Murray (1966) Pen state 423 observed as follows “That the greatest joy that can be experienced by mortal man is to feel himself master of his fate, this is in small as well as in big things. Of all the precious privileges and prerogatives in the crown of happiness which every American citizen has the right to wear, none shines with greater luster and impairs more innate satisfaction soulful contentment to the wearier than the golden diamond studded right to be let alone. Everything else in comparison is dross and said dust.”
42.Questions of value judgment pertinent to the concerns raised by the petitioner as to the limitation of time in section 73(2) of the impugned Act before one can access an independent tribunal or court to have her case heard on the merits as provided for under article 50(1) of the Constitution for the declaration of the marriage to be declared void ab initial is to me unreasonable.
43.This redress in a court of law is to avoid the consequential damage to the rights protected under the Constitution. It is sufficient that the statute guides judicial making process without limitation for an aggrieved party to approach the seat of justice immediately the cause of action arises. Learned author Locke in his Two Treatises Bk 11878 gave weight to the analogy of rights related to the marriage union between a husband and wife and the imports of those rights as follows: “Conjugal society is made by a voluntary compact between man and woman and though it consist chiefly in such a communion and right in ones access to reproductive rights as is necessary to its chief end, procreation, yet it draws with it mutual support and assistance under a communion of interest too, as necessary not only to unite their care and affection but also necessary to their common offspring who have a right to be nourished and maintained by them, till they are able to provide for themselves.”
44.The plausibility of the petition is that the petitioner assumed that she had acquired the domicile of the man with effect from the date of the marriage. The prima facie validity of the marriage and its subsistence was however characterised with irrefutable evidence that her spouse had contracted a previous union governed by the Marriage Act. Taking this point of view, by Kenyan Law the defect alleged concerned the formation of the marriage with someone who had no capacity to enter into a second marriage. It is therefore just and in the public interest that the Kenyan Courts should be seized of the matter in the first instance to rule on the un-tenability inherent in a voidable marriage. An emphasis of this perspective is rooted in the persuasive decisions by the US Supreme Court in Meyer –v- Nebraska 262 US 390, 399, Eisenstadt –v- Baird 405 US 438, 453, 92 CT 1029 31 LED 2D 349 (1972) in which the court held as follows: “That rights to marry establish a home and bring up children were long recognized at common law as essential to the orderly pursuit of happiness by free men. Further that a couple is not an independent entity with a mind and heart of its own, but an association of two individuals with a separate intellectual and emotional make up.”
45.Whether or not the limitation of the one year period under section 73(2) of the Marriage Act is justified to me remains a moot question which has not been answered by the respondent. By failing to give due weight to the import of that limitation no doubt parliament took away the rights enunciated in our Constitution. I think the message our parliament wanted to impart to the courts under section 73(2) of the Marriage Act is loud and clear that one finding herself or himself in a voidable marriage ought to live in “detention” inconsistent with the rights to equality, dignity, conscience, liberty, freedom of choice as prescribed in the bill of rights. The magnitude of its intrusion to the individual cognate rights is unreasonable and unjustified. In the context of our constitutional democracy which espouses the rule of law, guarantees the rights of citizens entering into a marriage contract to a fair, expeditious, efficient and proportionate decision making process in adjudication of disputes which may arise within the marriage. In my view the petitioner by dint of section 73(2) of the Act in spite of parliament good intentions deprives the essence of our right to access court in real time and in contravention of the equality principle before the law. Therefore, the rationality or reasonableness of the measure as to time adherence of one year is scarcely incompatible with the fundamental rights and freedoms in the Constitution. In particular, it is to be appreciated that an illegality of a marriage arising out of fraud or false misrepresentation on capacity by either party should for the purpose of fundamental justice to forestall any further violation or infringement of one’s human rights. In the corpus of interpretation this petition cannot escape a mention of the proportionality principle as a structured approach to constitutional interpretation and the impunity of a statute. As a principle and as a goal of interpretation proportionality is a precept of justice embodying the idea that larger harms imposed by the state should be justified by more weighty reasons and that more severe transgressions of the law be more harshly sanctioned than less severe ones. See Robert Alexy A theory of Constitutional right 102—04 Julian Rivers Trans 2010) Weems –v- United States 217 US 349 367 (1910). In this case it is held that proportionality test is an important aspect of the inquiry relating to whether or not that the purpose of the impugned statute infringes the circumstances and exception provided for by section 73(2) of the Act. The doctrine of proportionality requires the constitutional court to assess precisely and sufficiently the important purpose of the impugned statutory provisions, then the constitutionality of the means used as prescribed by law through a four-tier pronged approach: a) rationality which is minimal impairment. B) Proportionality and the relative weight accorded to interests and considerations in the challenged legislation. c) whether the heightened scrutiny test developed in R-v- Ministry of defence exparte Smith [1999] EHRR 493 that is not necessarily appropriate to the protection of human rights. d) whether it is plainly implicit in the notion that fundamental rights once identified as such deserves enhanced protection.
46.As highlighted above the court in Law Society of Kenya –v- Attorney General & another [2019] eKLR held as follows:"In addition to the above, and to fully comprehend whether a statutory provision is unconstitutional or not, its true essence must also be considered. This gives rise to the second principle which is the determination of the purpose and effect of such a statutory provision. In other words, what is the provision directed or aimed at? Can the intention of the drafters be discerned with clarity?"
47.Therefore intention is construed by scrutinising the language used in the provision which inevitably discloses its purpose and effect. It is the task of a court to give a literal meaning to the words used and the language of the provision must be taken as conclusive unless there is an expressed legislative intention to the contrary.”
48.Further it was noted that the legislature did not refrain from using the words that “the court shall only grant a decree of annulment if the petition is made within one year of the celebration of the marriage.” This interpretation as an overreaching guideline endorses impractical method to be employed by judicial officers faced with the application of section 73(2). The emphasis still laid by the provisions to me raises a jurisdictional purposes which is outside the one year period on void and voidable marriages. If the marriage was voidable it must in my opinion be regarded as having no legal effect to the parties presumed to have consummated the union. A decree of annulment indeed should be obtainable at any time the crystalizing factors are ascertained by either the woman or the man to the marriage. A grave omission of the provisions is that the grant of decrees of nullities outside the one year period is not tenable only and until a petitioner satisfies clause 2(b) of the act. In considering the law and criterion as prescribed within the context of section 73(2b) of the act the court will be faced by the inevitable problem of construction, interpretation and deconstruction as to the phases, “the petitioner was ignorant of the facts alleged and the marriage has not been consummated.” This problem aside for the moment, it may safely be said that by all the laws possibly relevant to the marriage in question it would be considered bigamous and therefore voidable. Therefore, one wonders what could have been the intention of the legislature in limiting access to justice to obtain a decree to nullify the marriage. One is thinking of a voidable marriage in a class of being null and void ab initio. I hold the view that section 73(2) provides legitimacy status of the marriage with the other party or the parties to the marriage who are within the prohibited degrees of solemnizing another union. In the instant petition the petitioner believed that the marriage was valid only until to be confronted with disclosure by her so called spouse to have celebrated an earlier union without her knowledge. The nature of the marriage was therefore void or voidable on the grounds of incapacity. That question ought to be determined by the court through reference to the proper law of the marriage on annulment cause without limitation of time.
The Presumption of Constitutionality of section 73(2)(a) of the Constitution
49.Discussing the presumption of constitutionality of a statute, the Supreme Court of India in the case of Hamdard Dawakhana v Union of India Air {1960} 554 stated that: -"In examining the constitutionality of a statute it must be assumed that the legislature understands and appreciates the need of the people and the law it enacts are directed to problems which are made manifest by experience and the elected representatives assembled in a legislature enact laws which they consider to be reasonable for the purpose for which they are enacted. Presumption is, therefore, in favour of the constitutionality of an enactment.”
50.It is therefore a settled principle that all acts of parliament are considered to be constitutional unless proved otherwise. To determine unconstitutionality, the petitioner must prove that the impugned section violates the constitution.
51.Section 73(2)(a) of the Marriage Act prescribes a time limit within which parties can annul a marriage. It states as follows;"73 (2)The court shall only grant a decree of annulment if—(a)the petition is made within one year of the celebration of the marriage;"
52.The main purpose of the Marriage Act, which came into force after the multiple acts governing different types of marriage were repealed, is to promote the family unit in furtherance of article 45 of the Constitution. Further, the Marriage Act requires parties intending to get married to go through a process to ensure that they have the capacity to contract the marriage after which they are granted permission to marry. The process involves the provision of information through an application which is then relayed to the public to invite any objection. In the case of the petitioner, the procedure was followed and there was no objection thus the registrar believing the information to be true qualified the parties with the capacity to contract the marriage.
53.The petitioner sought an annulment on the grounds that her husband had already entered into a customary marriage that was subsisting at the time they entered into a civil marriage. Section 11(1)(c) of the Marriage Act provides;"(1)A union is not a marriage if at the time of the making of the union—(c)either party is incompetent to marry by reason of a subsisting marriage;"
54.It is my view that the union was void ab initio. However, the main outcome the petitioner seeks is to have the union dissolved. In this particular instance, an annulment can only be sought within the first year of marriage which I find offensive given the fact that our Constitution demands respect rights against discrimination, dignity, equality, fundamental freedoms, right to information to make an informed decision which affects his or her rights. By committing ourselves to a society founded on the recognition of human rights we are required to value these rights as of necessity. The balancing of these interests and rights together with the consequent line to be drawn by the impugned statutory provisions are instructive that not only the restriction of one year impairs access to justice for a cause of action which arises after the expiry of the prescribed period, but on the face of it is a glaring disproportion of depriving a petitioner that right in article 38 of the Constitution. If due recognition is to be given to the rights limited by the section and the extent of their limitation the observation in National Assembly –v- Tukero Ole Kina [2022] eKLR applies mutatis mutandis to the current petition.
55.A right is an entitlement that an individual has that lets her or him act in a certain way or that lets her or him demand certain treatments from the state or that prevents others from acting towards her or him in a certain way. In article 24 of the Constitution it sets out the limitation of rights and fundamental freedoms. The embodiment of it is that rights have limits. Just because you have a right to something, does not mean that you can always enjoy these rights to its full extent. Our limitation in the Constitution on ones rights is other peoples rights. In my view the right to equal treatment before the law for an aggrieved party seeking to annul a voidable marriage after the expiry of one year violates access to legal protections guaranteed in the Constitution. If a party to a marriage is unable to consummate the marriage because of his or her incapacity but is well capable of having sexual intercourse with another person, notwithstanding that act under the Marriage Act the he or she will be taken to be incapacitated vis-à-vis his or her spouse if it is proved there was existence of an earlier marriage undisclosed to the other. This pillar is of great importance in the present petition before me since the second marriage was solemnized without material disclosure from the husband to the petitioner that he had consummated an earlier marriage. The wording of section 73(2) of the Act does not distinguish between void and voidable marriages which may require a husband or a wife to file a writ claiming a judgment of nullity in respect of his or her marriage. It is therefore my opinion in this instance contrary to the respondent’s case interpreting section 73(2) of the Act is inconsistent with the provisions of the Act on the phrase married women. In other words a woman or a man in a void marriage is not entitled to the rights which accrue under article 45(3) of the Constitution with exception of the children whom might have been born during the subsistence of that marriage. The most important arguments which resonate well with the current petition are to be found in the principles elucidated in R –v- Big M Drug Mart Ltd 1985 CR 295; “Both purpose and effect are relevant in determining constitutionality, either an unconstitutional purpose or an unconstitutional effect can invalidate legislation. All legislation is animated by an object the legislature intends to achieve. This object is realized through the impact produced by the operation and application of the legislation. Purpose and effect respectively, in the sense of the legislation, object and its ultimate impact, are clearly linked, if not indivisible. Intended and achieved effects have often been looked to for guidance in assessing the legislation's object and thus the validity.”
56.Olum & another –v- Attorney General [2002] 2 EA where the Constitution of Uganda stated; “To determine the constitutionality of a section of a statute or Act of Parliament, court has to consider the purpose and effect of the impugned statute or section thereof. If its purpose does not infringe a right guaranteed by the Constitution, the court has to go further and examine the effect of its implementation. If either its purpose or the effect of its implementation infringes a right guaranteed by the Constitution, the impugned statute or section thereof shall be declared unconstitutional.” See Muramga Bar Operators Association & another –v- Minister of state for Provincial Administration and Internal Security & another;(Petition No 3 of 2011) 2011 eKLR.”
57.Hamdard Dawakhana v Union of India Air (1960) 354, that “In examining the constitutionality of a statute, it must be assumed that the legislature understands and appreciates the need of the people and the laws it enacts are directed to problems which are made manifest by experience and, the elected representatives assembled in a legislature enact laws which they consider to be reasonable for the purpose for which they are enacted, presumption is, therefore, in favour of the constitutionality. In order to sustain the presumption of constitutionality, the court may take into account matters of common knowledge, the history of the times and may assume every state or facts are existing at the time of legislation.”
58.As for this petition the most interpretive model which I find applicable is one prescribed as a generous approach to constitutional interpretation in the case of Zuma 1995 (2) SALR 642(CC) under which a constitutional provision is interpreted with a view to granting the interested party the largest possible measure of constitutional protection. With regard to this the requirement in section 73(2) of the Marriage Act that a limitation of one-year period does in effect infringe the importance of article 27, 47 and 48 of the Constitution. The very purpose of the provision is to withhold that right rooted in the fundamental justice for a court to render a decision on the issue of annulment expeditiously. The court as an impartial forum in article 50(1) of the Constitution should be allowed to adjudicate any petition/claim arising out of void or voidable marriage unions.
59.In view of my analysis and appreciation of the evidence as stipulated above I find and hold that the impugned provisions as expressly stated under section 73(2) of the act as to limitation of one-year period does violate the petitioner’s fundamental rights and subsequent deprivation of right to equality in article 27, freedom of conscience in article 32, access to courts in article 48 of the constitution. Therefore, a declaration be and is hereby made to the effect that the impugned clause in section 73(2) of the aforesaid act be amended in pith and substance to give effect there shall be no limitation to secure a remedy of annulment through the courts system to guarantee speed justice to any citizen in adherence to the procedure established by law. The costs of this petition be borne by each party. Orders accordingly.
DATED, SIGNED AND DELIVERED VIA EMAIL AT ELDORET THIS 19TH DAY OF OCTOBER, 2022.............................R. NYAKUNDIJUDGE
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Cited documents 16

Judgment 14
1. Anarita Karimi Njeru v Republic [1979] KECA 12 (KLR) Applied 460 citations
2. Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] KECA 445 (KLR) Explained 377 citations
3. Law Society of Kenya v Attorney General & another (Petition 4 of 2019) [2019] KESC 16 (KLR) (3 December 2019) (Judgment) Explained 94 citations
4. Council of County Governors v Attorney General & another [2017] KEHC 6395 (KLR) Mentioned 28 citations
5. Apollo Mboya v Attorney General, National Assembly & Senate (Petition 472 of 2017) [2018] KEHC 6933 (KLR) (Constitutional and Human Rights) (21 May 2018) (Judgment) Mentioned 20 citations
6. Federation of Women Lawyers Kenya (FIDA) v Attorney General & another [2018] KEHC 7130 (KLR) Mentioned 18 citations
7. Institute of Social Accountability & another v National Assembly & 4 others [2015] KEHC 6975 (KLR) Applied 11 citations
8. Seventh Day Adventist Church (East Africa) Limited v Minister for Education & 3 others (Civil Appeal 172 of 2014) [2017] KECA 751 (KLR) (3 March 2017) (Judgment) Explained 10 citations
9. MURANG’A BAR OPERATORS & another v MINISTER FOR STATE FOR PROVINCIAL ADMINISTRATION AND INTERNAL SECURITY & 2 others [2011] KEHC 4242 (KLR) Mentioned 9 citations
10. National Assembly of Kenya v Kina & another (Civil Appeal 166 of 2019) [2022] KECA 548 (KLR) (10 June 2022) (Judgment) Explained 6 citations
Act 2
1. Constitution of Kenya Interpreted 31752 citations
2. Marriage Act Interpreted 481 citations

Documents citing this one 1

Judgment 1
1. Benjamin & 4 others v The Cabinet Secretary Lands, Public Works, Housing and Urban Development & 4 others; National Land Commission & 16 others (Interested Parties) (Petition E154, E173, E176, E181, E191 & 11 of 2024 (Consolidated)) [2024] KEHC 13060 (KLR) (Constitutional and Human Rights) (22 October 2024) (Judgment) Explained 1 citation