In 2015, the High Court in Nairobi ruled that women had a right to decide who their co-wives would be in polygamous marriages.
In an October 28 ruling that arose from a case that sought to invalidate the Marriage Act concerning customary unions, Justice Mumbi Ngugi said men should not be allowed to register polygamy without the consent of their wives.
The judge said women had an equal say on who their husbands could bring in as additional wives.
“The practice of polygamy and registration of polygamous marriages without the consent of the previous wife or wives is inconsistent with provisions of equality in the Constitution,” the judge ruled.
However, Ms Ngugi noted that this equality did not mean women should get an additional husband while still married to the first, as polyandry is against Kenyan culture.
“Can men and women ever be equal, within the meaning contemplated by the Constitution, within a polygamous marriage? In my view, to talk about equality of men and women within a polygamous situation is a bit of an oxy-moronic phrase, if one may coin the term,” the judge ruled.
“Equality would presuppose a woman has the same right as the man to take on a second spouse during the subsistence of the marriage, the practice defined as polyandry. This is not recognised in any of the cultures of Kenya, so it must be accepted that polygamy precludes equality between men and women."
The judge noted that polygamy without consultation and consent by the woman amounted to discrimination.
She observed that the registration of polygamous marriages appears to have been accepted, even by women, as the lesser evil, and had been recommended in various reports including the 1968 Report of the Commission on the Law of Marriage and Divorce in Kenya.
She said the reports appreciated it was hard to prove customary marriage without a certificate.
“While this court accepts that permitting polygamous marriages without the consent of a previous wife or wives is not consistent with the law, it also recognises that there are situations and practices it cannot regulate, and that must be left to the wishes and dictates of the people, through their duly elected representatives, as well as to the individual choices of those adults contracting marriages, and who willingly enter into polygamous or potentially polygamous marriages,” she ruled.
In the case, Mary Muigai had complained that allowing registration of customary marriages was formalising a practice that is against culture.
Attorney General Githu Muigai opposed the case, arguing that Parliament would enact a law recognising marriages under any tradition.