Bishop Mark Kubai Kariuki & 2 Others v Attorney General & Registrar of Marriages
The bottom line
#New government regulations must align with existing laws and cannot unfairly target specific religious groups in Kenya.
What this practically means
#Executive summary
#Key legal issues
#Whether Gazette Notice No. 6303 discriminated against Christian ministers of faith under Article 27
The Notice was discriminatory in one respect: it omitted Assistant Registrars under the repealed Islamic Marriage and Divorce Registration Act who were also required by section 96(1) to send registers to the Registrar
The court compared the Notice with section 96(1), which applies to Registrars under the repealed Marriage Act, the African Christian Marriage and Divorce Act, and Assistant Registrars under the Islamic Marriage and Divorce Registration Act. The Notice covered only the first two categories, omitting the Islamic Assistant Registrars, so it did not accord with the statute and was discriminatory in that respect.
Whether the requirement to return old registers and pay for new ones violated Article 47
No violation; the Registrar was exercising a statutory function under section 96(1)
The requirement for new registers resulted from a change in the law. The petitioners placed no material or authority before the court showing that returning old registers and obtaining new ones under a new legal regime violates fair administrative action.
Whether the fees charged were unconstitutional or discriminatory
No; fees were prescribed under the Marriage (General) Rules, 2014 made under section 94, which the petitioners did not challenge
The court noted the petitioners did not challenge the constitutionality of the Act's provisions or the regulations; their grievance was that fees were too high and charged only for Christian marriages, but no evidence showed the regulations violated the Constitution.
Whether prior authorization (Registrar's certificate or special licence) for church marriages is unlawful
No; notices of intended marriage are required for both civil and Christian marriages under sections 19(1) and 26
The interested party argued section 25 applies only to civil marriages, but the court read sections 19(1) and 26 as showing such notices apply to civil and Christian marriages alike.
Legal principles established
#- A Gazette Notice issued under a statute must accord with the provisions of the statute on the basis of which it is issued; an omission contrary to the statute is unlawful
- A change in the law requiring parties to obtain new documentation is not a violation of the right to fair administrative action
Court orders
#- 1.Registrar directed to consider Gazette Notice No. 6303 against the provisions of section 96(1) with respect to Islamic marriages and issue appropriate directions and regulations
- 2.Each party to meet its own costs
- Jurisdiction invoked
- Article 22(2)(c) of the Constitution (public interest petition); Articles 27 and 47 violations alleged
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bishop Mark Kubai Kariuki & 2 Others v Attorney General & Registrar of Marriages", Case Analysis (2015). Petition (dated 22nd October 2014) - number not stated in judgment. Source:
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.