The State has dismissed a retired teacher’s push to have polygamous Christian marriages recognised under Kenyan law as a “figment of imagination”, urging the High Court in Kitale to reject his constitutional challenge to the country’s marriage laws.
In a spirited defence of the Marriage Act, 2014, the Attorney-General argued that petitioner Bonface Ndura Koimburi had failed to demonstrate how the law violated his constitutional rights or discriminated against Christians.
“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,” the State submitted on Wednesday, November 4.
Through State Counsel Lotiir E. Henry and Deputy Chief State Counsel Joyce Chilaka, the government defended provisions classifying Christian marriages as monogamous, arguing that Parliament acted within its constitutional mandate when it enacted the law.
The Attorney General said Mr Koimburi had approached the court with a personal desire to contract a polygamous Christian marriage rather than demonstrate that a religious community was facing discrimination because of its beliefs.
Boniface Koimburi Ndura the man is seeking polygamy rights for wedded Christians.
Photo credit: Evans Jaola| Nation Media Group
The State further argued that Christianity and its religious practices transcend national boundaries, warning that granting the petition could place Kenyan Christians in an isolated position compared with the wider Christian community.
The submissions mark a new phase in a legal battle initiated by Koimburi in 2024, when he challenged several provisions of the Marriage Act and Section 171 of the Penal Code, which criminalises bigamy.
At the centre of the dispute is Section 6 of the Marriage Act, which classifies Christian marriages as monogamous. Mr Koimburi, 80, wants the contested provisions declared unconstitutional, arguing that they restrict the right of Christians to practise polygamy.
The Attorney General anchored its defence on Article 45(4) of the Constitution, which requires Parliament to enact legislation recognising marriages entered into under different traditions and systems of personal and family law.
The State argued that Parliament acted within this mandate when it enacted the Marriage Act in 2014, consolidating existing marriage laws and providing for five recognised forms of marriage.
It maintained that classifying Christian marriages as monogamous reaffirmed an existing legal position rather than introducing a new restriction.
The government denied that the provision was intended to discriminate against any religious community, arguing that individuals who choose Christian marriages are subject to the legal requirements governing that form of union.
It also challenged Mr Koimburi’s claim that the law violated his constitutional rights, saying he had failed to identify a specific grievance or demonstrate an actual infringement.
Although the State acknowledged that Articles 22 and 258 of the Constitution allow individuals to institute proceedings to enforce constitutional rights, it argued that the petition had not met the required legal threshold.
High Court in Kitale, Trans Nzoia County.
Photo credit: Jared Nyataya| Nation Media Group
The petitioner 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 also questioned his attempt to advance the interests of the wider Christian community, arguing that he had not demonstrated that he represented a particular religious organisation or denomination.
On his challenge to Section 171 of the Penal Code, the State argued that Koimburi had not demonstrated that he had first exercised his constitutional right under Article 119 to petition Parliament on the issue of bigamy.
The government also opposed his request concerning the teaching of marriage in the education curriculum, arguing that the relevant institution had the authority to review its syllabus.
It said there was no evidence that Koimburi had submitted his proposals to the institution or that they had been rejected.
But Mr Koimburi’s lawyer, Mr Mutaki Wanyama, maintained that his client was entitled to challenge the law in his individual capacity without representing an entire religious denomination.
Mr Wanyama argued that individuals within a religious community had a right to advance constitutional claims even where their positions differed from those of the majority.
He had previously told Justice Robert Limo that Parliament exceeded its mandate by defining Christian marriages as monogamous instead of limiting itself to recognising marriages contracted under different religious and cultural traditions.
The lawyer argued that Article 45(4) required Parliament to recognise different marriage systems but did not give it 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.
Wanyama further argued that the restrictions infringed on his client’s freedom of thought, belief and opinion, while Section 171 of the Penal Code imposed criminal consequences on those seeking to contract another marriage while already in a monogamous union.
The petition also challenges aspects of how marriage is taught in Kenya’s education curriculum, with Koimburi arguing that the subject should accommodate different perspectives.
A retired teacher, conservationist and private school proprietor, Mr Koimburi has authored two books, Polygamists Will Go to Heaven and Jesus Does Not Oppose Polygamy, advancing his position on Christian marriage.
The matter is scheduled for mention on January 21, 2027, when the court is expected to give directions on the delivery of judgment.
