After two years of delays, the High Court in Kitale has finally cleared the way for submissions in a constitutional petition challenging Kenya’s marriage laws and the prohibition of polygamous unions in Christian marriages.
The petition, filed by Kitale-based author and environmentalist Mr Ndura Koimburi, has been held up by technicalities and delays in the filing of responses by the parties in the matter.
Boniface Koimburi Ndura the man is seeking polygamy rights for wedded Christians.
Photo credit: Evans Jaola| Nation Media Group
On Tuesday, during a mention before Justice Robert Limo, the court directed the parties to prepare for the highlighting of submissions on October 2.
The court also directed both sides to provide all authorities they intend to rely on during the submissions.
Counsel for the petitioner asked the court to allocate sufficient time for the submissions, citing the public interest in the matter.
A representative of the Office of the Attorney General, which is the respondent, confirmed that the State had finally filed its submissions after prolonged delays.
“We filed our submissions on August 19, but we are not ready for highlighting of submissions today,” the AG representative told the court.
Justice Limo directed that the matter be mentioned on October 2, noting the petition’s significant public interest.
“This is not a light matter; we will provide enough time for hearing so that both parties can do their submissions,” said Justice Limo.
The development follows repeated criticism by the court over delays by the Office of the Attorney General in responding to the petition.
Justice Robert Limo.
Photo credit: File | Nation Media Group
During an earlier mention in July, Justice Limo blamed the AG’s office for delaying the determination of cases of public interest, warning that such delays contribute to case backlogs and leave the public exposed and unrepresented in litigation.
The judge criticised the AG for failing to respond and make submissions on constitutional matters in which the State is required to actively represent the public interest.
“Did we have a response to this petition? You have not been representing the public well despite clear directions by this Court. It is very clear that the AG has left the public exposed, in this matter,” Justice Limo told the Attorney General’s representative in July.
The court observed that the Attorney General had not been sufficiently sensitive to the petition and other constitutional matters requiring a response from the State.
“This matter was filed two years ago, and the AG was given more than six opportunities to file their response; they have been taking the court for a ride,” petitioner’s counsel Dennis Mutaki said during the July 29 session.
Mr Mutaki said his client was 78 when he filed the petition and is now 80, but is yet to get justice.
He said efforts to follow up on the AG’s response through its Nairobi and Kitale offices had been futile.
The constitutional petition was filed in September 2024 by Mr Ndura, 79 at the time, challenging Kenya’s existing marriage laws.
The petitioner contends that the laws are discriminatory because Christians are prohibited from entering polygamous unions while polygamy is permitted under certain other religious and customary legal frameworks.
Mr Ndura further argues that sections of the Penal Code and the Marriage Act that enforce monogamy in Christian marriages violate Articles 32 and 45 of the Constitution, which guarantee freedom of religion and the right to marry according to personal beliefs.
“The modern legal imposition of monogamy is a colonial relic that contradicts traditional Christian teachings,” he states in his petition.
He cites biblical figures including Abraham, Jacob and King Solomon as examples of polygamous Christians recognised in scripture.
The petitioner also argues that allowing polygamy could help address rising rates of single parenthood and divorce by offering ‘a more stable family structure’ for some communities.
The case has also faced procedural delays after the Attorney General sought to enjoin other religious organisations in the matter, a development that further affected the timeline.
Earlier, the High Court declined a request to empanel a three-judge bench to hear the petition.
The parties are now expected back in court on October 2 for the highlighting of submissions, setting the stage for the court to consider the constitutional challenge to Kenya’s marriage laws.
