Married in church, under civil law or Hindu rites? A second wife, husband could land you in prison

At a recent land rights forum, grassroots human rights defenders described a troubling pattern they are increasingly encountering in their communities.

Some said men had abandoned their families after receiving compensation from the National Land Commission for compulsory land acquisition and moved elsewhere to marry other women despite having contracted church marriages.

Their accounts mirror incidents that have made headlines for years: women storming churches to stop weddings after claiming the groom was already their husband. Men, too, have reported being deserted by wives they married in church, only to discover they had remarried under customary law.

Also read: Desertion or bigamy? Why the law sides with those who remarry after spouse disappears

Behind these dramatic scenes lies a criminal offence that many Kenyans are either unaware of or choose to ignore: bigamy.

Under Section 171 of the Penal Code, a person commits the offence of bigamy if they go through a marriage ceremony that is void because it is contracted while their lawful spouse is still alive. Bigamy is a felony punishable by up to five years' imprisonment.

Official data shows the offence continues to be reported, although numbers fluctuate from year to year.

According to the Economic Survey, 2021 recorded the highest number of cases, with 99 people charged: 73 men and 26 women. The number dropped sharply to 17 cases (15 men and two women) in 2023 before rising again in 2024 to 23 cases involving 13 women and 10 men. In 2025, eight cases were reported, split equally between men and women.

Notably, 2022 recorded the highest number of female suspects, with 18 women compared to three men.

Which marriages can lead to bigamy?

The Marriage Act, 2014, draws a clear distinction between monogamous and polygamous unions.

Christian, civil, and Hindu marriages are strictly monogamous, meaning neither spouse can legally marry another person while the marriage still exists. By contrast, marriages celebrated under customary or Islamic law are recognised as polygamous or potentially polygamous.

According to Eric Mukoya, executive director of the Undugu Society of Kenya and an experienced lawyer, the offence of bigamy only arises where a person who is already in a monogamous marriage purports to marry someone else.

"Bigamy only applies to Christian, civil and Hindu marriages because these are monogamous unions," he says. "Customary and Islamic marriages are recognised by law as polygamous or potentially polygamous and therefore do not fall within the offence."

Although the Marriage Act does not define bigamy in the same terms as the Penal Code, it expressly prohibits a person from entering another marriage while still legally married under a monogamous system.

The Act also criminalises dishonesty during the marriage registration process. Section 86 provides that anyone who knowingly makes a false statement in a notice of intention to marry or in an objection to a marriage commits an offence punishable by a fine of up to Sh2 million, imprisonment for up to two years, or both. However, the law provides a defence where the person reasonably believed the statement to be true.

You cannot switch marriage systems at will

The law also bars couples from arbitrarily changing the nature of their marriage.

Anyone wishing to convert a potentially polygamous marriage into a monogamous one must strictly follow the procedure set out in the Marriage Act. Both spouses must voluntarily declare their intention before a marriage officer, who records the declaration in writing before forwarding it to the Registrar of Marriages. The Registrar then cancels the existing marriage certificate and issues a new one reflecting the marriage as monogamous.

However, a polygamous marriage can only be converted into a monogamous marriage if the husband has only one wife at the time of the conversion.

The cost of a void marriage

The legal consequences of entering into a marriage that is later declared void because of bigamy extend beyond criminal liability. They can also determine whether a person has any rights over property acquired during the relationship.

That became evident in Civil Case No. 64 of 2013 (O.S.) before the High Court in Machakos.

Also read: Bound by law, broken by silence: One police officer’s story exposes Kenya’s bigamy dilemma

GM married DMM in August 2011. However, in October 2013, the Mavoko Principal Magistrate's Court annulled the marriage after finding that it amounted to bigamy because one party was already in a valid monogamous marriage.

Barely a month later, GM moved to the High Court seeking a share of property she claimed they had jointly acquired during the marriage. The disputed property, however, had been purchased in July 2009, two years before the marriage.

DMM opposed the suit, arguing that once the marriage had been declared a nullity, it could not confer any legal rights under the Married Women's Property Act of 1882 or any other matrimonial law. Since the parties lacked the legal capacity to marry in the first place, he argued, no matrimonial property rights could arise.

When the law says the marriage never existed

In his judgement delivered on April 27, 2018, Judge D.K. Kemei agreed with that argument.

He relied on the Court of Appeal decision in OKN v MPN [2017] eKLR, which held that an annulled marriage is treated in law as never having existed.

"It follows therefore that the benefits granted to a lawful marriage are not available to cohabitees who are deemed never to have been married at all," the Court of Appeal stated.

The appellate judges further held that even the legal presumption of marriage could not rescue such a union because it was void from the beginning, having been entered into without the legal capacity to marry. Consequently, property could not be shared under family law because there was no valid marriage to dissolve.

Judge Kemei dismissed GM's claim, holding that it had been brought under the wrong law and before the wrong court.

He noted that the disputed property had been acquired before the marriage and that, following the annulment, any ownership dispute had to be pursued through a different legal process rather than as a matrimonial property claim.

The judge also observed that GM had neither appealed the annulment nor obtained an order suspending its effect. Without a legally recognised marriage, he ruled, she lacked the legal standing to pursue a claim for matrimonial property, and he upheld the preliminary objection that the High Court had no jurisdiction to hear the case.

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