UNIVERSITY OF NAIROBI

COLLEGE OF HUMANITIES AND

SOCIAL SCIENCES
SCHOOL OF LAW
PUBLIC INTEREST GROUP
ASSIGNMENT
ODUOR BENARD RAPHAEL

G34/54571/2012

MIRITI GIDEON MURITHI

G34/53462/2012

MALELA BASIL

G34/41904/2011

MANYARA REGINALD MWORIA G34/53294/2012

HAGGAI OKEYO ONGUKA
WAMBUI LILIAN WAMBURA

G34/53229/2012
G34/ 52545/2012

JUMA LUTHER KIMULI

G34/54164/2012

KIPNGETICH TITUS

G34/53342/2012

NJAMBI BELINDA WAFULA

G34/53343/2012

INTRODUCTION
The family is the natural and fundamental unit of a society and the necessary basis of social
order and shall enjoy the recognition and protection of the state...Article 45 of the constitution of
Kenya (2010
It is trite knowledge that a family sprouts from a marriage. Marriage lays the basis and
foundation of a family. As stated by lord Westbury, marriage is the very foundation of a civil
society and no part of the laws and institutions of a country can be of more vital importance to its
subjects than those which regulate the manner and conditions of forming and if necessary of
dissolving the marriage.1
Marriage has been described by some scholars as a special kind of contract in the sense that there
can be no valid marriage unless each party consents to marry the other party2.The consent just
like in a commercial contract must be made voluntarily and this is also reflected in article 45(2)
of the constitution. Every adult has the right to marry a person of the opposite sex based on the
free consent of the parties. However it is nevertheless a special type of a contract for it can only
be concluded by a formal public act and not for example by e-mail correspondence or an
exchange of letters or over the telephone, no action for damages will lie for breach of
fundamental obligation to love,honour and obey. The contract cannot be rescinded by the mutual
consent of the parties, it can only be dissolved by a formal public act, usually an order or decree
of a divorce court3.But it is more than a contract. It creates a status. Something vital and of
interest to the community as well as the parties.

1 Shaw v Gould
2 Section 11 Marriage Act
3 Mordaunt v Mordaunt

It was not until the late 19th century that Lord Penanze pronounced himself as famously stating
that marriage is the voluntary union for life of a man and woman to the exclusion of all
others.4This was true for the English system which didnt recognize polygamy. As a result a lot
of injustices were occasioned during the pre-colonial period where the court refused to recognize
a second wife in the African setting of polygamy. This hostile judicial attitude towards polygamy
revealed itself in many cases. However over the course of the mid-twentieth century the common
law strained to mitigate the severity and harshness of the Hyde rule and develop a more
favorable stance towards polygamy, the common law rule on the legal recognition of polygamy
was that a marriage that was polygamous as determined by the law of the place of celebration
and :1. That was not celebrated in England in accordance with polygamous forms and was without
any civil ceremony as required by English law
2 Whose parties personal law permitted them to contract to such a marriage, would be
recognized in England as a valid marriage unless there was strong reasons to the country
If a marriage is good by the laws of the country in which it is celebrated then it is good all over
the world5
However family as an institution has not always been as simple as discussed above, in that it
wasnt strictly based on the concept of marriage, as the concept of marriage was little barbaric as
to what we have in the present and modern times as elucidated by the principle in Hyde v Hyde.
The concept of marriage has also evolved. A family then wasnt based on the blood affinity
brought about by marriage, humans lived in groups where everything was shared, This was
however set to change at the dawn of the agrarian revolution, in his book Dr.christopher Ryan
states that man became conscious of who would inherit his property when he died, he thus
started organizing the society and the concept of monogamy was born, this ideal concept became
the traditionally accepted notion in the western countries6. The flaw in this argument is that it
4 Hyde v Hyde
5 Lord Dunedin in Berthiame v Dastous

doesnt incorporate the obvious, fact in that almost every society in the world has created its own
definition of marriage.
It is important to note that at this point in time woman had no say in matters of marriage; in the
eyes of the law they were dead. Once married a womans legal status changed drastically. In
contrast a single woman, called femme sole or women alone had the right to live where they
pleased and to support themselves in any occupation that did require a license or a college degree
restricted to males. Single women would enter into contracts, buy and sell real estate, or
accumulate personal property. So long as they remained unmarried women could sue and be
sued, write wills and act as executors. Marriage changed a womans legal status drastically a
married woman in principle still had the legal rights but no longer had autonomy.Instead they
found themselves in positions of almost total dependency on their husbands which the law
called coverture. As famously stated by William Blackstone in his oft-repeated dicta in his
commentaries on English law, By marriage, the husband and wife are one person in the law,
that is the very being or legal existence of a woman is suspended during the marriage or at least
is incorporated and consolidated into that of the of the husband under whose wing protection
and cover, she performs everything7.
Covertures were based on the patriarchal assumption that a family functioned best if the male
head of a house hold controlled of all its assets. As a result a married woman could not own
property independently of her husband unless they signed a special contract called a marriage
settlement. In the absence of a separate estate all personally of a woman brought to her marriage
or earned during the marriage including wages, became her husbands. He could manage it or
give it away, as he chooses without consulting her.
The law has developed in the last century and it has been recognized that equality and equity are
some of the key principles of fairness8 .In light of this article 45(3) of the constitution echoes in
our minds, it expressly states that the rights of a party remains the same,before,during and after
6 Sex at dawn
7 Commentaries of the English laws
8 Article 10 of the constitution of Kenya

marriage.The upshot of this provision is that the age old tradition view that man is the superior
being in the marriage doesnt hold true anymore.A good authority for this presupposition is the
recent judgment of lady justice mumbi ngungi in Mary wanjuhi muigai v Attorney general,
whereby the learned judge stated that the practice of polygamy and registration of marriages
without the consent of the previous wife or wives is inconsistent with the equality provisions of
the constitution.
From the discussion it can therefore be said that a family is a group of people affiliated by
affinity (marriage) and a family as a result and as discussed elsewhere in this discourse, is indeed
the principle institution of asociety.The laws governing this unit should be clear and most
favorable for a sustainable development of a country. We will thus go into the second aspect
which entails a detailed evaluation of the adequacy or the inadequacy of the laws governing
critical features of a family, to name but a few, laws on adoption, divorce, succession et.al.
THE LAW AND MARRIAGE

Article 45 of the constitution forms the backbone of family in Kenya the act proceeds to state as
follows
1. The family is the natural and fundamental unit of the society and the necessary basis of
social order and shall enjoy the recognition and protection of the state
2. Every adult has the right to marry a person of the opposite sex ,based on the free consent
of the parties
3. Parties to a marriage are entitled to equal rights at the same time of the marriage, during
the marriage and at the dissolution of the marriage
4. Parliament shall enact legislations that recognizesa. Marriages concluded under any traditional or systems of religious ,personal or family
law ;and

b. Any system of personal and family law under any tradition ,or adhered to by persons
of a particular religion to the extent that any such marriages are consistent with the
constitution
Marriage
Marriage in Kenya is defined by the marriage act 2014 section 3 as voluntary union between a
man and a woman.
However the legal provisions of the statutes and judicial precedences provides for the conditions
and the capacity requirements for couples to make a family
Some of those conditions present legal impediments to the right of family as envisioned in art 45
of the 2010 constitution of Kenya for example;

a. AGE:
The constitution under article 45(2) provides that every adult has the right to marry a person of
the opposite sex based on the consent of that person. There are however other conditions when it
comes to age, but minimum age is sixteen years
The authority on age is Pugh v. Pugh 1951 a man aged sixteen years old married a girl aged
fifteen and it was held that the marriage was void and in his ruling the judge gave reasons why
requirements as to age are provided for by stating that.
It is considered socially and morally wrong that a person of an age at which we believe them to
be immature should have the stress, responsibilities and sexual freedoms of marriage and the
physical strain of child birth.
It is also a provision of the law under criminal law on the provision of section 14 of the Kenyan
Penal Code that a minor is not liable for having carnal knowledge therefore this is denying
minors the right of starting a family.

b. RELATIONSHIP BY WAY OF CONSANGUINITY OR AFFINITY

Relationship by consanguinity is where you have blood relationships and affinity is relationship
by way of marriage. These marriages are regarded as incestuous and are prohibited for health
reasons and inbreeding. Inbreeding gives one imperfect stock and that is why these marriages
are prohibited.
Section10 (1) and (2) of the Marriage Actcontains the prohibited decrees. . it states a list of
what are the prohibited relationships and in that list a man may not marry his mother, including
step mother and mother in laws or adopted mothers, his daughter, including step daughters,
daughters in law and adopted daughters. He cannot marry his sisters including step sisters,
grandmother including step grandmother, he cannot marry his granddaughter including step
granddaughters, he cannot marry his aunts or his nieces.
The woman likewise may not marry her father, step father, father inlaw and adopted father, son,
step son, son in law, grandfather, grandson, uncles and nephews all these include step and
adopted.
Legal constraints pertaining to relationship by way of consanguinity or affinity has barred many
people from starting families.
c. SEX
The first condition is that the parties must be biologically man and woman. This is found under
common law as a requirement and in
Corbett v. Corbett (1970) 2 All E.R. 33
In this particular case the parties went through a ceremony of marriage at the time of the
marriage the petitioner knew that the respondent had been registered at birth as being of the male
sex and had undergone a sex change operation and since that operation had lived as a woman.
After 14 days of marriage the petitioner filed a petition for a declaration that that marriage was
null and void on the ground that the respondent was a person of the male sex or alternatively for
a decree of nullity on a decree of non consummation of marriage. It was held among other
things that marriage is essentially a relationship between a man and a woman the respondent

having been a biological male from birth rendered the so called marriage void. It was held that
the Respondent was incapable of consummating the marriage and that it was a nullity.
Right now there is a lot of controversy on the issue of definition of marriage with some states
allowing gay marriages .
Under the provision of article 45(2) of the constitution it is provided that every adult has the right
to marry a person of the opposite sex.
Section 162 of the Kenyan penal code proceeds to state that any person who has carnal
knowledge against the order of nature or permits a male person to have a carnal knowledge of
him against the order of nature is liable for fourteen years imprisonment this provisions impede
on the gays ,transgenders and lesbians rights to form a familly by marriage.
d. NOTICE
Parties who seek to get married under statutory law must give notice of their intention to get
married and this is provided for under Section 8 of the Marriage Act. This notice is given at the
office of the registrar of marriages in the District where the parties reside. Always saving that
notice the registrar then enters it in a marriage notice book that he or she maintains and he is
also required to publish that notice by affixing a copy of the notice outside his office and the
notice stays there for a maximum period of 3 months or until the marriage certificate is issued to
the parties. This requirement mainly arises from the fact that in evolution of marriage under
common law it was demanded that a marriage be a public act and should not be celebrated in
private but in a public place.
When giving notice the parties must attach an affidavit stating the following
(a) that at least one of the parties has been resident within that district for at least 15 days;
(b) that the parties have attained the age of 21 years but if the parties range between 16 and
21 years they must attach a consent in writing from their parents or guardians.
(c) That they are not related in any way i.e by blood or marriage

(d) That they are not married to any other person under any law at the time of issuing such
notice.
If any person is dissatisfied with that notice, he or she either places a caveat in the marriage
notice book giving his or her reasons for challenging the intended marriage and this caveat is
placed by entering the word FORBIDDEN opposite the entry of the notice. The person who
places the caveat then appears before a judge or a magistrate whereby he or she is then required
to show why the marriage should not take place and the decision of the court in this regard is
final.
Matter of the marriage of Alfred Nderi & Charity Kamweru EF & EC
The facts in these two cases are very similar but the rulings were quite different. In both cases
the man gave notice of his intention to marry a lady and a caveat was then placed by the
Respondent in both cases claiming that the man was already married to the Respondent and
therefore had no capacity to contract the intended marriage. In Nderis case it was actually 2
caveats and it was held that the common knowledge that Nderi had in fact been married to both
women under Kikuyu Customary Law while one of the marriages had been dissolved the other
one had not. It was held that the registrar should therefore not issue the certificate of marriage
because Nderi did not have capacity to marry under statutory law.
In the matter between EL AND EC the caveator claimed that she had eloped with a man and
therefore he had no capacity to marry another woman. In this case it was found that the
formalities under customary to contract a marriage had not been met and especially the consent
of her family to that marriage had not been given and therefore she could not invalidate the
intended marriage because she did not have a marriage with the man and the caveat was thus
removed from the notice book.
if the registrar is however satisfied with the notice and is satisfied that no caveat has been
registered, then he may issue a certificate of compliance and in that certificate indicate that a
marriage should take place within three months of the notice being given. If the marriage does
not take place within the 3 months, then the notice and all proceedings consequent to that notice
shall be void and if the parties still intend to get married, fresh notice must be given.

The role of the registrar is sometimes performed by church ministers whereby rather than give
notice at the registrars office the church minister announces in the church which the parties
attend that the parties intend to get married better known as bans of marriage and this is a
recognise and valid way of publishing the notice to get married.
Requirements as to formalities such as giving Notice of their intention to get married as per the
provision of the law and ignorance therefeore pertaining to the provision of the law in this
matter has led to the declaration of marrriages void thus denying the parties involved in
excercisisng their rights to start a family by marriage.
CONSENT
If below 21 years consent in writing from parents or guardian is required as seen below
Re Bennet (1974) 45 DL.R 409
In Re Bennet a 16 year old girl sought an order to dispense with her parental consent to her
intended marriage and the court refused to give that order insisting that consent must be given for
the marriage to proceed.
In the event of a refusal of consent by the parent this leads to the sad scenario where one is
prevented from marryng and forming a family
POLYGAMY AND MONOGAMY
In march 2014 Kenyas president Uhuru signed into law a controvercial marriage bill legalising
poligamy. This provided right of the male to start new families via multiple marriages.
However the constitution under artickle 5(3) provides that parties to a marriage are entittled to
equal rights at the time of marriage .
Monogany on the other hand is practised by hindu community and the provisions of their laws
therefore bars them from starting new families via laws.
BIGAMY
Under section 171 of the penal code the offence of bigamy is provided

It refferrs to going through another ceremony of marrige when having another wife or husband
living and first marriage has not been rendered void.
Celebration of marriage validates marriage and thus it is not acceptable under this
cicrumstance .this provisions of section 171 legally constrains the right of a prson to marry and
celebrate marriage as well as to excercise their rights in starting new families.

3. ADOPTION
The adoption policy in Kenya impedes the realisation of family rights as was originally intended
by the drafters of the Rome Statute for example the Childrens Act proceeds as follows ;
156 (1) No arrangement shall be commenced for the adoption of a child unless the child is at
least six weeks old and has been declared free for adoption by a registered adoption society in
accordance with this rules prescribed in that behalf.
156(2) It shall not be lawful for any person whether being a parent or guardian of a child or
otherwise, or for an adoption society by whom arrangements for adoption of a child are made, to
place a child into the care and possession or control of a person who proposes to adopt him, if an
adoption order in respect of the child cannot be lawfully made in favour of that person..
Any child who is resident within Kenya may also be adopted whether or not the child is a
Kenyan citizen, or was or was not born in Kenya:
i.

Provided that no application for an adoption order, shall be made in respect of a child
unless the child concerned has been in the continuous care and control of the applicant
within the Republic for a period of three consecutive months preceding the filingof the
application and both Establishment of Adoption Committee. Preliminaries. Children

ii.

who may be adopted.

the child and the applicant or applicants as the case may be evaluated and assessed by a
registered adoption society in Kenya.

An adoption order may be made upon the application of a sole applicant or jointly by two
spouses where the applicant or at least one of the joint applicants (a)

has attained the age of twenty-five years and is at least twenty-one years older than

the child but has not attained the age of sixty-five years; or
(b) is a relative of the child ; or
(c) is the mother or father of the child.
(2) An adoption order shall not be made in favour of the following persons unless the court is
satisfied that there are special circumstances that justify the making of an adoption order
(a) a sole male applicant in respect of a female child ;
(b) a sole female applicant in respect of a male child ;
(c) an applicant or joint applicants who has or both have attained the age of sixty-five years;
(d) a sole foreign female applicant.
(3) An adoption order shall not be made if the applicant or, in the
case of joint applicants, both or any of them (a) is not of sound mind within the meaning of the Mental Health Act;
(b) has been charged and convicted by a court of competent jurisdiction for or any of the
offences set out in the Third Schedule to this Act or similar offences ;
(c) is a homosexual ;
(d) in the case of joint applicants, if they are, not married to each other;
(e) is a sole foreign male applicant:
Provided that the court may refuse to make an adoption order in respect of any person or persons
if it is satisfiedfor any reason that it would not be in the best interests of the welfare of the child
to do so.

From the above scenarios the legal impedements is two tier , that is to say that
1.the child below six weeks can not be adopted this handicap denies the child the right to family
2. single males are prohibited from adopting this denies both the single men and the child the
right to family
THE RIGHT TO COHABIT
In the case of Argyll v. Argyll the right of cohabitation between married spouses was established
but there are legal constraints of the provisions of this case as elaborated under the case of
Nanda v. Nanda (1968) whereby the courts held that a wife or a husband cannot force the other
spouse to cohabit when either of the spouses has rejected the other.
Facts of the case;
The husband deserted the wife and went to live with another woman .the woman installed herself
where they were living and refused to move.
The husband applied for an injunction to restrain the wife from moving to the flat he was living
with another woman. In granting the injunction the court stated that a wife or a husband cannot
force the other spouse to cohabit when either of the spouses has rejected the other.
Similarly in the case Dunn v .Dunn the husband petitioned for divorce on grounds of desertion
alleging that when he had returned from working overseas, he had requested his wife to go and
live with him but the wife refused. The court decided that a wife or a husband cannot force the
other spouse to cohabit when either of the spouses has rejected the other.
It is the duty of the law to promote marriage rights in a family such as the right to cohabit but as
seen in the two cases above it is evident that the legal provisions have constrained that family
right.
JUDICIAL SEPARATION
This is a legal process by which a married couple may formalise a de facto separation while
remaining legally married. Its usually granted in form of a court order.

However much it is taken as an essential step by court in solving family cases though it denies
the conflicting couples their right to cohabit as a family.
Judicial separation has therefore led to temporary disruption in marriages which may not have
been contemplated by the parties in marriage.
The case of judicial separation is well established in R v Clarke and R v Miller in the two cases it
was provided that in a situation whereby judicial separation order has been issued by a court then
the married couples are supposed to refrain from sexual intercourse therefore their conjugal
rights are withheld.
It was therefore held that if a man insists on sexual intercourse when they are judicially separated
he will be guilty of rape.
DIVORCE
Divorce is the legal dissolution of a marriage by a court or other competent body. Courts do
dissolve marriages in situations whereby for example both parties in marriage consent and form
an intention to dissolve the marriage, where one of the spouses applies for dissolution of
marriage by court on grounds such as adultery, domestic based violence as well as when the
court deems it necessary to grant the divorce.
This denies the couples who intended to get married the rights to have a family and enjoy the
rights for cohabitation as well as their conjugal rights. The provisions of the law have hereby
restrained the exercise of the would be family rights when couple were married.
It would be liberal for the court to grant divorce only under special circumstances.

RELIGION
There are religious laws that, prohibit inter religious marriages for example its a ground for
divorce under Hindu Religion that if one deserts the religion as well as when one joins another
religion. This does restrain exercise of becoming a family when divorced on this ground and

again the threatened partner to divorce may not enjoy peaceful cohabitation as his or her rights to
enjoy conjugal rights and the constitutional rights of freedom of association are curtailed.

ABORTION
Abortion is defined as the process of ending pregnancy so that it does not result in the birth of a
baby.
It may also be defined as the termination of a pregnancy
In Kenya abortion is illegal pursuant to section 214 and 158 of the penal code of Kenya a child
becomes a person capable of being killed when it has completely proceeded in a living state from
the body of its mother whether it has breathed or not and whether it has an independent
circulation or not, and whether the navel string is severed or not section 158 proceeds as follows
it is illegal to aid abortion.
When a legal abortion is performed i.e. when the life of the mother is at risk then the fetus is
denied right to life and form part of the family of its parents.
THE LAW AND ABORTION
Constitution provides for the right to life9.It provides that life begins at conception10 and that
abortion is not permitted unless in the opinion of a trained health professional, there is need for
emergency treatment or the life or health of the mother is in danger or if permitted by any other
written law.11
Abortion is therefore illegal in Kenya. This provision impedes on the right to family in the
following way;

9 Article 26(1) of the Constitution

10 Article 26(2) of the Constitution
11 Article 26(4) of the Constitution

It affects the birth order decided upon by the couple. Most married women induce abortion as a
result of unwanted or unplanned pregnancy. Even with the improved contraceptives use some
abortions will remain difficult to prevent, because of the limit of womens ability to determine
and control all circumstances of their lives12.The right to family planning is provide for in the
constitution in the economic and social rights where it states that everyone has a right to the
highest attainable health which includes the right to health care services including reproductive
health care13.Right to family planning entails free choice of the number of children have and the
spacing of children.
Denying families abortion access increases their risk of falling into poverty. This is because an
unplanned child puts a strain especially on struggling families. This puts more families on the
public assistance as it may push them below poverty lines as standards of living are always in the
rise in the country.
It increases the number of single families. Illegalizing abortion makes women seek back door
services to procure abortions for them the effect of this is that these environments are unsafe and
the services are not procured by professionals. This has therefore increased maternal mortality in
the country living care if the children to one parent. The effects of one single parenting include;
financial strains on the family as only one parent is providing for the family and poor quality
parenting as the single parent spends all their time trying to make ends meet for the families.
Criminalizing abortions affects fundamental rights of the family the rights of privacy 14for the
family as the law tries to maintain social order it should also ensure that private decisions of the
family are not interfered with the right to liberty is also denied for families as the decision on the
number of children should be the free will of the family. Rights to non-discrimination and
equality. Access to legal and safe abortion services is essential to the protection of womens
rights to non-discrimination and equality. Families are in practice more likely than men to
experience personal hardship as well as social disadvantage as a result of economic, career, and
12 International Family Planning Perspectives 1998
13 Article 43(1) of the constitution
14 Article 31 of the Constitution

other life changes when they have children. Where families are compelled to continue unwanted
pregnancies, such consequences forcibly put women at further disadvantage.
Right to information. 15Under international human rights law, states have an obligation to provide
complete and accurate information that is needed to protect and promote the right to health,
including reproductive health. Where abortion is not punishable by law, such complete and
accurate information includes information about safe abortion options. Families are
disproportionately affected when information about safe abortion services is withheld or
restricted. Therefore, restricting or withholding abortion-related information may in some cases
also constitute discrimination.
Right to be free from cruel, inhuman, or degrading treatment. 16The U.N. Human Rights
Committee has indicated that restrictions on access to safe and legal abortion may give rise to
situations that constitute cruel, inhuman, or degrading treatment. These situations include
forcing a pregnant woman to carry an unwanted or health-threatening pregnancy to term.
Evidence suggests that restrictions on abortion often lead to restrictions on post-abortion care.
These restrictions can also be incompatible with the right to be free from cruel, inhuman, or
degrading treatment. This could, for example, be the case where post-abortion care is
systematically denied, or where available pain medication is withheld. It could also be the case
when women only have access to necessary post-abortion care if they testify in criminal
proceedings.
The law has been antagonizing on whether to legalize abortion. The famous case of Roe vs.
Wade has been cited in instances where jurisdictions want to legalize abortion. In that case Roe
(P), a pregnant single woman, brought a class action suit challenging the constitutionality of the
Texas abortion laws. These laws made it a crime to obtain or attempt an abortion except on
medical advice to save the life of the mother. Other plaintiffs in the lawsuit included Hallford, a
doctor who faced criminal prosecution for violating the state abortion laws; and the Does, a
married couple with no children, who sought an injunction against enforcement of the laws on
the grounds that they were unconstitutional. The defendant was county District Attorney Wade
15 Article 35 of the Constitution
16 Article 28 of the Constitution

(D).A three-judge District Court panel tried the cases together and held that Roe and Hallford
had standing to sue and presented justifiable controversies, and that declaratory relief was
warranted. The court also ruled however that injunctive relief was not warranted and that the
Does complaint was not justifiable.
The Court held that, in regard to abortions during the first trimester, the decision must be left to
the judgment of the pregnant womans doctor. In regard to second trimester pregnancies, states
may promote their interests in the mothers health by regulating abortion procedures related to
the health of the mother. Regarding third trimester pregnancies, states may promote their
interests in the potentiality of human life by regulating or even prohibiting abortion, except when
necessary to preserve the life or health of the mother.
The importance of the ruling is that the court recognized for the first time that the constitutional
right to privacy is broad enough to encompass a woman's decision whether or not to terminate
her pregnancy.

THE LAW AND SAME SEX MARRIAGES

There is a deliberate failure by the state to protect sexual minorities from discrimination both in
policy and legislation. Although the Minister for Justice, National Cohesion and Constitutional
Affairs affirmed Kenyas commitment to enhance equality and non-discrimination to all Kenyans
including sexual minorities substantive legal and policy action to qualify this is lacking as
highlighted in this report. The State has also failed to decriminalize consensual same sex sexual
conduct despite overwhelming domestic and international research showing the negative linkage
of criminalizing homosexual conduct and HIV health programmes.
Kenyan law and practice only recognizes the male and female gender, no recognition is made of
intersex, due to the binary norm evident in the country. There is no legal framework that allows
or facilitates Transgender and Intersex individuals to choose their gender and have it recognized
by law; most intersex individuals are taken through unnecessary corrective surgeries when they
are born or simply assigned a gender role and raised as such without being given a chance to
choose their gender or undergo a sex correction surgery when they are of age. The transgender

persons suffer lack of legal recognition and are legally bound to a gender they do not want to
identify with.
This is a violation of their freedom of expression. The governments persistent failure to address
and make cognizance of the falsity of the gender binary norms have resulted in State sanctioned
homophobia.56 Intersex persons feel obliged to abide by the law by requiring them to choose
between the male or female gender in order to get legal documents. This is because most public
and government documents compulsorily require one to fill in their gender as either male or
female. The intersex children are raised in unsupportive environments where they are hardly
given information on their conditions. They grow up in a society that treats them as freaks of
nature, uses derogatory terms such as hermaphrodites to refer to them and are forced to
identify with a gender that is not of their choice.
Some of the challenges that LGBTs and their families face are;
i.

Harassment by State Officials

Same sex sexual practices remain criminalized in Kenya, and even though there are few
convictions based on sections162 to 165 of the Penal Code that criminalize these practices,
LGBTI persons are routinely harassed by the police, held in remand houses beyond the
constitutional period without charges being preferred against them, and presented in court on
trumped-up charges.31 Closely related to this, is a cartel of corrupt police officials who routinely
extort and blackmail LGBTI persons with the threat of arrest and imprisonment if they do not
give those bribes.
ii.

Poor Access to Health Care and Lack of Comprehensive Services

LGBTI Kenyans, accessing treatment for sexually transmitted infections (STIs), counseling and
testing for HIV, and transgender and intersex persons seeking general care, are often afraid of
honestly responding to medical interviews because honesty could lead to rebuke, arrest or both.
Doctors often violate the privacy of LGBTI patients by exposing them to other staff or police,
preaching to redeem them, or altogether denying them medical care.
These are factors which could be changed by appropriate law and policy put in place to protect
these individuals since they deserve the same respect every other person deserves.

THE LAW AND FAMILY PLANNING

The Kenya Population Data Sheet 2011 provides population, health, and environment data
compared over time and among regions, wealth quintiles and education levels. In just over four
decades, Kenyas population has nearly quadrupled in size, from 10.9 million in 1969 to an
estimated 40 million people today. The Kenya Population Data Sheet 2011 illustrates this
dynamic growth since the mid-20th century as mortality declined and birth rates remained high.
Given this rapid growth, it is no surprise there are substantially more people in the younger age
groups than the older age groups. A majority of the population is under age 20, and more than
two out of five people are under age 1517.
The large size of Kenyas young population and its rapid population growth are influenced by
several factors that have serious consequences for the health and well being of women and
children, and the development of Kenya:
a) Early marriage and child bearing. Among women ages 20 to 24, one out of four is
married by age 18. In this same age group, women in rural areas are twice as likely
to be married by age 18 as women in urban areas, increasing the likelihood of
childbearing at a young age. Women who are poor have less education and are
living in rural areas have the youngest median age at first birth.
b) Unmet need for family planning. One out of four married women ages 15 to 49 has
an unmet need for family planning , meaning they wish to delay their next
pregnancy by two years or more, but are not using any method of contraception.
The poorest women report the highest unmet need. Almost half of women report
that their most recent birth was an unplanned pregnancy.
c) High Total Fertility Rate (TFR). Kenyas TFR is 4.6; women have an average of
four to five children during their lifetime. Even if the average number of births

17 Population Reference Bureau and National Coordinating Agency for Population and
Development, Kenya Population Data Sheet 2011 (Washington, DC: PRB, 2011).

declines to 3.7 children per woman by 2030 as projected by the United Nations
medium variant, the population will still grow to 65.9 million people18.
These factors increase the likelihood of unintended and unwanted pregnancy, unsafely performed
abortion, high risk births, and disease and death from pregnancy-related complications. Maternal
mortality continues to be high. The 2008-09 Kenya Demographic and Health Survey estimates
488 maternal deaths per 100,000 live births.
In addition to health concerns, rapid population growth has implications for development due to
the increasing demands on the economy, social services, and natural resources. According to the
Kenya government, there are not enough employment opportunities for the growing population
of young people19.
As the population expands and becomes increasingly dense, the amount of arable land per capita
available to rural farmers and their children is shrinking. Almost 70% of the population lives in
rural areas, but two out of three farmers do not believe their land is sufficient for their children to
stay and live.
Ensuring access to voluntary family planning helps manage rapid population growth by
preventing unintended pregnancies while reducing maternal and child mortality, and improving
the health and economic well-being of families and communities. Research demonstrates that
family planning is an essential component of achieving development goals for health, poverty
reduction, gender equality and environmental sustainability including Kenyas Vision 2030, a
national framework for development.
The United Nations estimates that every dollar spent on family planning saves between $2 to $6
in interventions aimed at achieving other development goals20. When combined with progressive
development policies, family planning reduces poverty and stimulates economic growth because:
18 United Nations, World Population Prospects: The 2010 Revision (New York: UN
Population Division, 2011).
19 Government of Kenya, Coordinating and Accelerating MDGs in Kenyas
Development Process. Transition Period for the Completion of the Project:
Mainstreaming MDGs in Kenyas Development Process 2005-2008(2009).

a) Fertility decline after a period of rapid growth produces a temporary window

of opportunity for a nations economy as the size of the dependent population
is reduced in relation to the working population. The large base of workers
with fewer dependents means there are more resources available for health,
education, and infrastructure and job creation.
b) Helping women and families prevent unintended pregnancies and unwanted
births makes it easier for communities to pace development with population
growth. This enables a community to expand health care, build schools, and
develop infrastructure and employment opportunities as the population
grows. The nation can invest more in the quality of care instead of struggling
to keep pace with the quantity of services.
c) Planned childbearing makes it easier for parents, especially women to
achieve education and career goals which raise family income. When
countries develop and fertility declines, the proportion of women earning
wages increases drastically.
d) Family planning programs reduce inequality between women in different
socioeconomic groups. Unintended childbearing is most common among
poor, rural and uneducated women. Countries that effectively reach people in
these communities with family planning have fewer socioeconomic
differences in unplanned reproductive health outcomes21.

WORK-LIFE BALANCE.
Work-Life Balance initiatives benefit the family in that a person is able to adequately balance
between work and family roles.
Many parents in Kenya barely have time to interact with their children because of work.

20 UN Population Division, What Would it Take to Accelerate Fertility Decline in the

Least Developed Countries? Policy Brief (New York: UN Population Division, 2009).
21 John Bongaarts and Steven Sinding, Family Planning as an Economic
Investment, SAIS Review 31, no. 2(2011): 35-44.

The preamble to the Constitution emphasizes the countrys commitment to nurturing and
protecting the wellbeing of the individual, the family, the community and the nation as a whole.
Article 10(2) (b) provides that the national values include human dignity and human rights.
Women have the right to services related to pregnancy and lactation.
Article 45(1) recognizes that the family is the fundamental unit of society. The family is the
custodian of the values upheld by the community. The state is, therefore, under an obligation to
protect the family.
Through Article 2(5) of the Constitution, the general rules of international law form part of
Kenyan law. In addition, based on Article 2(6) any treaty or convention that Kenya has ratified
is deemed to be part of the law of Kenya. Accordingly, Kenya is under an obligation to ensure it
complies with the standards set in these instruments.
DOES KENYAN LAW PROMOTE FAMILY LIFE BY ENCOURAGING FAVOURABLE
WORK-LIFE BALANCE?
The Employment Act 2007 primarily governs the employment relationship in Kenya
The Act defines the fundamental rights of employees, sets out the basic conditions of
employment and regulates matters dealing with the employment of children.
About regulation of working hours, section 55 provides that employers should regulate working
hours in accordance with the law. Further, the agreed upon hours of work should be stated in the
employment contract. In addition, article 27(2) entitles employees to a day of rest within the
course of each 7-day period.
This requirement on rest days is in accordance with international standards since Leave
Entitlements are important in work-life balance initiatives.
Section 29 of the Act entitles female employees to maternity leave and male employees to
paternity leave. Such job-protected leave should be with full pay. Further, upon completion of the
maternity or paternity leave, the employee is entitled to return to the same position or an
alternative equivalent position.

How the Employment Act discourages family life:

UNFAVORABLE WORKING HOURS.
Article 24 of the Universal Declaration on Human Rights recognizes a right to rest and leisure,
and this includes a reasonable limitation of working hours.
Article 7(d) of the International Covenant on Economic, Social and Cultural Rights includes the
reasonable limitation of working hours as part of the conditions of work that every individual has
the right to.
Weekly hour limits are the legal standards that represent the standards that the government
upholds as acceptable working hours for the citizens. These limits are the primary method of
preventing regular and consistent working hours.
These therefore, contribute towards enabling employees achieve an acceptable balance between
paid work, family responsibilities and other aspects of personal life.
Section 27 of the Employment Act provides that working hours of employees are to be regulated
by employers. Accordingly, article 10(2) (g) requires the employment contract to state, inter alia,
the hours of work that the employee is expected to abide by.
Further, the Regulation of Wages Order (RWO) sets the Kenyan standard on the maximum hours
of work per week as fifty-two hours. In accordance with section 5(1) of the RWO, these 52
hours are to be spread over a maximum of six days a week.
Section 5, however, provides two exceptions to this rule. The first is that where a person is
employed for night work, the maximum number of hours that they are to work should be sixty
hours. The second exception is that employees under the age of sixteen years should not work for
more than six hours in a day.
The maximum working hours in Kenya are, therefore, higher than the ILO standards
which require either a 48-hour limit or a 40-hour limit.

Hours worked above the 52-hour limit are considered to be overtime. According to the RWO,
overtime payment is 1.5 times above the normal rate. Such overtime payment may be awarded
by the court where it is established that the employee went beyond the regular working hours.
For example, in Seth Namunyanyi Mahiga v. Healthy U 2000 Limited the respondent agreed
with the claimants statement that he worked 11 hours a day, which amounted to 66 hours per
week. This meant that the claimant worked an extra 14 hours per week. The court, therefore,
awarded Kshs. 217,083.53 on account of overtime.
Rights to minimum periods of weekly rest also work together with weekly limits of working
hours to enable Work Life Balance.
In Kenya, rest days are provided for by section 27(2) of the Employment Act.
Employees are entitled to one day for every seven days worked. This provision is in accordance
with international standards, which requires the right to at least 24 consecutive hours of rest each
week.
Section 7(1) of the RWO, however, allows for the deferment of rest days such that they are
taken on a subsequent day. Such deferred rest days may be accumulated until a maximum of
fourteen days and then taken as leave with full pay, in addition to the employees annual leave.
However, such deferment cannot be done where the employee is less than sixteen years.
Lack of Flexible working arrangements
These are also important in promoting family life through Work-Life Balance.
They provide an alternative to the traditional eight to five work day.
They allow employees to vary the arrival and departure time depending on the circumstances and
the workload, without compromising the expected hours at the end of the day.
An alternative is the ability to work from locations other than the office. As such, the
employee can work from home but meet the agreed targets.

The Kenyan Employment Act does not provide guidelines on such arrangements.
However, the practice has been embraced by some organizations, and they usually have a
guiding implementation policy.
In Agnes Yahuma Digo v. PJ Petroleum Equipment Limited,the claimant alleged to have
made
an oral agreement with the Respondents General Manager for one hour lactation breaks each
morning and afternoon. The respondents claim was that the claimants letter of appointment
stated that the office hours from Monday to Friday would be from 8.00 a.m. to 1.00 p.m. and
2.00 p.m. to 5.00 p.m. On Saturdays the working hours would be from 8.00 am to 12.00 noon. In
the case, Ndolo J stated obiter that flexible hours are a policy issue. The judge agreed with the
respondent that there was no flexible working arrangement, since it was not included in the terms
of the written contract nor did the company have a policy on FWAs. Therefore, FWA parameters
should be set out in a policy document, and not merely discussed and agreed upon between an
employer and employee.
Consequently, though there is no specific law relating to FWAs, such arrangements can be
provided for in the policy documents of organizations.
Poor Maternity, paternity leave and related leave entitlements
The Employment Act provides for maternity leave and paternity leave entitlements.
These leave entitlements enable employees to take time off from work after the birth of a child,
but without the risk of being dismissed.
They are an important mechanism in supporting the integration of work and family obligations
for working parents.
Such leave is important to protect the health and well-being of both the parent and child.
Maternity leave is a means through which women can successfully combine reproductive and
productive roles.

It is a health and welfare measure aimed at protecting the mother and newborn child just before,
during and immediately after childbirth.
The law sets the basic minimum for what leave entitlements employers must offer employees.
Section 29(1) of the Employment Act requires employers to provide female employees with jobprotected maternity leave for a period of three months with full pay. The length of maternity
leave under Kenyan law is in accordance with ILO Conventions 3 and 103. It, however, does not
meet the international standard set by Convention 183.
The case of Jane Wairimu Machira v Mugo Waweru and Associates emphasized that female
employees are entitled to maternity leave even while on probation.
In this case, the claimant applied for maternity leave but the respondent declined to approve the
application because the claimant was still on probation. The respondent then advised the
applicant to apply for study leave instead. The court held that the respondents instruction to the
applicant to apply for study leave instead of maternity leave demonstrated a clear
misunderstanding of the purpose of maternity leave. Therefore, the refusal to grant the claimants
request for maternity leave was deemed discriminatory.
To be eligible, the employee should apply for maternity leave by giving seven days notice. A
shorter notice period may be accepted depending on the circumstances. By virtue of section
29(3), an employee is entitled to an extension of maternity leave with the consent of the
employer, by taking sick leave, annual leave, compassionate leave or any other leave as may be
necessary.
In such cases, the maternity leave expires after the extended leave.
Maternity leave is viewed as a temporary interruption of employment. Upon the expiration of the
maternity leave, the employee is guaranteed the right to return to work after the leave. Section
29(2) provides job protection while taking leave in that after the leave, the employee must be
restored to the same position or an equivalent one. An equivalent position means that the new

position should include the same benefits, pay and other conditions of employment. Therefore,
after the leave, the employee cannot be transferred to a job whose terms and conditions are less
favorable.
There is importance given to the presence of the father at the time around the time of childbirth.
However, this was not always the case.
In the traditional African setting, childbirth was considered a womans affair. Further, care of the
newborn children was predominantly undertaken by the mother and other women in the
homestead.
In light of this, paternity leave entitlements were not provided for under the repealed 1976
Employment Act. Paternity leave only came to be part of the law in 2007 when the current
Employment Act was enacted.
It was at that time that it was recognized that men also have family responsibilities as child
rearers.
As such, the recognition of the importance of the fathers involvement at the time of childbirth
led to the entitlement to paternity leave.
Paternity leave, usually taken around the time of the childbirth to enable the father to acclimatize
to parenthood, is for a period of two weeks with full pay. Both maternity and paternity leave
entitlements are with full pay.
Providing full pay ensures economic security for both mothers and fathers while they are on
leave. It also enables employees to promote family stability, hence preserving family integrity.
A related type of leave that promotes Work Life Balance is parental leave.
Parental leave is a relatively long-term leave available to either parent to facilitate the care of a
young child over a period that follows either maternity leave or paternity leave.
Paragraph 10(3) of ILO Recommendation 191 urges for the granting of leave to an employee
father or mother at the expiration of maternity leave.

Further, paragraph 22(1) of ILO Recommendation 165 considers parental leave a part of an
integrated approach to enhance Work Life Balance.
Despite this, Kenyan law does not provide for parental leave.
Paragraph 10(5) of Recommendation 191 provides that adoptive parents should also have access
to the system of protection on maternity leave, especially regarding leave, benefits and maternity
protection.
In such case, the date that the child arrives in the adoptive parents home may be counted as the
date of birth in legislative terms.
This adoption leave would enable the adoptive parents to adapt to the arrival of the child.
However, since unlike actual childbirth, no recovery period is needed, adoption leave may be for
a shorter time than maternity leave.
The adoption laws in Kenya, which are provided for by the Children Act, however, do not
mention anything on adoption leave. Therefore, such leave does not currently apply under
Kenyan law.
Article 10(1) of ILO Convention 183 provides for lactation breaks for breastfeeding women.
These breaks are supposed to be counted as working time and so the employees remuneration
should not be deducted because of the breaks.
Lactation breaks are supposed to be available to women upon the return from maternity leave.
There are no legislative provisions for lactation breaks in Kenya.
Compassionate leave
Compassionate leave is an important mechanism to support employees when they need to
respond to urgent domestic misfortunes.
Such personal misfortunes may include bereavement, or situations where a close relative or
friend is gravely ill or has been involved in a serious accident.

In Joseph Otieno Onyango v. M/S Kaajal Textiles Ltd & Another, the claimant was granted
compassionate leave.
The claimant was to resume work five days later but came back slightly later only to be
summarily dismissed.
The respondent claimed that since the claimant had no more annual leave days the extension of
the compassionate leave beyond the five days granted amounted to absenteeism.
The court held that the dismissal of the claimant for reporting to work two days late after burying
the father was callous and unwarranted.
Judgment was, therefore, entered for the claimant.
Similarly, in George Odhiambo Owaka v. Wells Fargo Limited, the claimant was granted one
week compassionate leave so that he could travel upcountry to bury his son.
The claimant allegedly could not resume work on the agreed date because of lack of funds and so
telephoned a personnel officer for the respondent requesting for an extension of the time, which
was granted.
However, the claimant was summarily dismissed after reporting to work two days later. The
respondents argument was that since the claimant did not return to work as agreed, the
termination was justified.
The court held that since the claimant had left the place of work on legitimate grounds and under
distressing circumstances, the respondent should have been more sensitive and considerate to the
claimant.
The court found the termination of the claimants services under the circumstances to be cruel
and insensitive on the part of the respondent.
Therefore, judgment was entered in favour of the claimant.

Compassionate leave is granted for a short period, rarely exceeding more than a few days at any
one time.
In accordance with section 11(1) of the RWO, the number of days the employee is granted
compassionate leave is thereafter deducted from the employees annual leave entitlement.
However, section 11(2) of the RWO gives employees the right to take an additional five days
compassionate leave without pay each year
Lack of Childcare support for employees
According to section 2 of the Children Act a child is a person below the age of eighteen years.
Article 5 of the 1981 ILO Workers with Family Responsibilities Convention number 156
encourages the development and promotion of community services such as childcare and family
services.
Access to childcare support is an important factor in enhancing Work Life Balance
especially among women in that it enables participation in the workforce while balancing
family responsibilities.
Childcare support may be in the form of pre-school supervision. However, a comprehensive
childcare approach is one that encompasses support for children of all ages.
This childcare support may be through, for example, providing workshops and other forums for
new parents, and organizing family event days.
There are no special provisions in Kenyan law for corporate or state-provided childcare
support for employees.
However, some employers have internal policies and agreements that provide for
childcare assistance. For example, Safaricom has a day-care centre run by childcare
professionals.
In this way, employees can leave the children under the care of the professionals, proceed to
work, and periodically check on them.