National Assembly of Kenya v Ole Kina & another
The bottom line
#Kenya's Court of Appeal ruled the three-year wait before divorcing a civil marriage is unconstitutional in hardship cases, but gave Parliament three years to fix it.
What this practically means
#Executive summary
#Key legal issues
#Justiciability, ripeness and locus standi
The petition was justiciable; section 66(1) was operational and the respondent laid a basis of actual and threatened violation, with locus in the public interest.
Article 22 adopts a broad approach to standing, requiring only an actual or threatened infringement. The Marriage Act was in force and persons were contracting marriages and divorcing under it, so the question was neither premature nor abstract but an existing legal problem affecting or likely to affect a substantial section of the public. The High Court did not err in assuming jurisdiction.
Exhaustion of remedies and separation of powers
The doctrine of exhaustion did not apply; petitioning Parliament was not an effective alternative remedy, and the High Court had jurisdiction to determine constitutionality without usurping Parliament.
An alternative remedy entailing delay or uncertainty is not effective. When constitutionality of a statute is legitimately challenged, the only remedy is to ask the court to nullify the offending provisions. Courts defer to Parliament's lawful functions, but legislation outside the Constitution attracts judicial jurisdiction; parliamentary supremacy has been watered down by the supremacy of the Constitution under article 1.
Whether section 66(1) was discriminatory
Section 66(1) was not discriminatory; parties to different marriage regimes are not similarly situated, and other regimes also impose restraints on divorce.
Equality must be interpreted in the context of constitutionally permitted social, religious and personal differences influencing the choice of marriage system. The State's positive obligation to protect the family unit under article 45 supports the restraint on divorce, and mediation/reconciliation requirements exist in Christian, customary and Islamic regimes. The High Court erred in finding discrimination.
Proportionality under article 24
The three-year limitation fell short of the proportionality test and was unconstitutional to the extent of its disproportionate effect where divorce may be necessary and justified before three years.
While the section had a legitimate purpose, the constitutional purpose was not to perpetuate a marriage no longer beneficial to the parties. As an exception to the general rule, divorce should be allowed for unavoidable and unendurable situations of exceptional hardship or depravity irrespective of the duration of the marriage. The declaration of unconstitutionality was suspended for three years to allow Parliament to amend the Act.
Validity of regulation 4(1) of the Marriage (Matrimonial Proceedings) Rules, 2020
Regulation 4(1), allowing leave to file for divorce before three years, was not backed by and contradicted section 66(1) of the parent Act.
The regulation was enacted after the impugned decision and in effect created an exception to section 66(1). Delegated legislation must accord with the parent Act, and amending a statutory provision is a legislative act that only Parliament may undertake; the interim relief the regulation provides must be anchored in statute.
Legal principles established
#- A petitioner under article 22 need only demonstrate an actual or threatened infringement of a right, and may sue in own interest, on behalf of others, or in the public interest; such a petition is justiciable where the impugned provision is operational.
- Where an alternative remedy would entail delay or uncertainty, the doctrine of exhaustion does not apply; when the constitutionality of a statute is legitimately challenged, the only available remedy is to urge the court to nullify the offending provisions.
- The presumption of constitutionality is a principle of statutory interpretation, not a bar to the High Court's jurisdiction under article 165(3)(b) and (d), and it is not absolute.
- Legitimate differentiation must pass three tests derived from article 24: rationality, proportionality, and necessity in an open and democratic society.
- Delegated legislation must be in accordance with, and within the scope of powers of, the parent Act; amending a provision of an Act is a legislative act reserved to Parliament.
- Parties are bound by their pleadings; issues not pleaded, such as public participation in this case, cannot be determined.
Court orders
#- 1.Appeal partly allowed
- 2.Declaration that section 66(1) of the Marriage Act, 2014 is not discriminatory but is unconstitutional for reason of, and to the extent of, its disproportionate effect in cases where a divorce in a civil law marriage may be necessary and justified before the three-year limitation
- 3.Suspension of the declaration of unconstitutionality for three years from the date of judgment to enable Parliament make the necessary amendments to the Marriage Act, 2014
- 4.No order as to the costs of the appeal
- On appeal from
- High Court of Kenya at Malindi
- Malindi Constitutional Petition No. 6 of 2018
- Jurisdiction invoked
- Article 164 of the Constitution (first appeal from the High Court); High Court jurisdiction under articles 165(3)(b) and (d) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "National Assembly of Kenya v Ole Kina & another", Case Analysis (2022). Civil Appeal 166 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/548/eng@2022-06-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.