The High Court has rejected an attempt to stop Catholic Church couples from divorcing their partners and exempting them from civil divorce proceedings, affirming that marriage and divorce remain subject to the law.
In a judgment with implications for church-state relations, the court rejected calls to recognise Catholic Canon Law as an alternative legal framework for marriage disputes.
The petitioner, Peter Gathirimu, a Nairobi-based medical practitioner and Catholic faithful, argued that Catholics should enjoy a separate family law system similar to the one available to Muslims through the constitutionally recognised Kadhis' Courts.
The court held that while freedom of religion is protected, it cannot override a spouse's right to leave a marriage through the civil courts. The ruling reinforces the state's authority over family law while preserving individual freedom to seek divorce.
The court dismissed Mr Gathirimu's constitutional petition challenging key provisions of the Marriage Act, which sought to stop his wife from pursuing divorce proceedings in court.
Gathirimu argued that Catholic marriages are sacramental and indissoluble and that Catholics should have their marriage disputes determined under Canon Law through the Catholic Church's Metropolitan Tribunal rather than the civil justice system.
The case arose after his wife, Mary Wanjiku, whom he married in a Catholic ceremony at the Shrine of Mary Help of Christians in Nairobi in August 2019, filed for divorce in March 2023 on the grounds that the relationship had broken down.
Mr Gathirimu, a member of the Catholic Order of Preachers, argued that subjecting him to divorce proceedings amounted to breaching the tenets of his Roman Catholic faith by dissolving marriage.
In the petition, Gathirimu sought declarations that Catholics have a constitutional right to remain married, that the Marriage Act discriminates against Catholics, and that Parliament should enact laws recognising Catholic Canon Law as part of Kenya's family law framework.
He also challenged Sections 65, 66 and 73 of the Marriage Act, which govern divorce and annulment, arguing that they violate freedom of religion and conscience by permitting dissolution of Christian marriages.
"The Marriage Act does not compel dissolution of marriages contrary to faith," the court said. "Rather, it provides a neutral statutory framework that respects individual autonomy and the diverse religious convictions within Kenya."
According to the court, the law merely gives parties the option of seeking divorce and does not force anyone to abandon their religious beliefs.
"The impugned sections all use the term 'may', which connotes that parties in a marital relationship are not compelled to procure a divorce or separation," it said.
The court found that Article 45 of the Constitution, which protects the family and the right to marry, also recognises that parties have equal rights at the dissolution of marriage.
Kenya Conference of Catholic Bishops (KCCB) Vice-Chairman Rev Anthony Muheria (third right) addresses the media on November 13, 2025, at Donum Dei Spirituality Center in Karen. He is accompanied by KCCB Chairman Rev Maurice Muhatia Makumba (left), Rev Philip Anyolo from Nairobi (right), and other church leaders.
Photo credit: Francis Nderitu | Nation Media Group
"It is important to note that the Marriage Act and Article 45 of the Constitution do not guarantee a right to prevent divorce," the judge said.
Accepting the petitioner's arguments, the court said, would elevate denominational doctrine above constitutional supremacy and could deny spouses access to legal remedies available to other citizens.
"Far from discriminating, the Marriage Act treats all citizens equally by providing a uniform legal mechanism for dissolution regardless of faith," the court said.
The judge also rejected claims that Parliament failed to involve the public when enacting the Marriage Act in 2014.
The court found that the National Assembly had provided opportunities for public participation through newspaper advertisements and consultations with stakeholders during consideration of the legislation.
The court further ruled that the Constitution's recognition of Islamic personal law and the Kadhis' Courts does not amount to discrimination against Catholics.
It noted that the Kadhis' Courts are expressly established under the Constitution, while no equivalent constitutional framework exists for ecclesiastical courts or Catholic tribunals.
"The non-incorporation of Catholic Canon Law into the text of the Marriage Act, 2014 does not violate Article 27 or Article 45(4) of the Constitution," the court held.
It added that marriage carries both religious and civil dimensions and that the state retains a legitimate interest in regulating family relationships and providing legal mechanisms for resolving marital disputes.
The court said that no spouse can permanently waive statutory rights and protections simply by entering a religious marriage ceremony.
"A marriage vow, however sacred within a place of worship, cannot operate as a legal estoppel to bar a citizen from accessing the courts to seek a statutory remedy," said the court.
The court found that the petition was primarily aimed at preventing Ms Wanjiku from pursuing divorce proceedings and observed that the marriage had since been dissolved through the civil process.
The judge repeatedly referred to her right to seek an exit from what she considered an untenable marriage and found that granting the petition would have effectively blocked her divorce case.
The Kenya Conference of Catholic Bishops was named as an interested party in the petition because the case sought constitutional recognition of Catholic Canon Law, though the judgment does not set out their participation in the case.
The petition was dismissed in its entirety, and all the declarations sought were declined.
