How Kenyan MPs plan to shield men who dump wives, girlfriends

By WILFRED AYAGA

NAIROBI, KENYA: If your partner changes his mind on the promise to walk you down the aisle, you will no longer be entitled to claim any damages should Parliament uphold a proposed amendment.

This is one of the proposed amendments to the Marriage Bill, which comes up for a vote before the Committee of the Whole House this afternoon. The proposal seeks to deny parties in a relationship any claim to damages resulting from failure to honour a promise of marriage made by one of the partners.

It seeks to amend Clause 76 of the Bill, which specifies grounds on which a marriage may be dissolved and enumerates the consequences of broken pledges.

The section clarifies that a promise to marry another person is not binding to either party but goes ahead to state that a jilted lover could claim damages from the offending party.

Although the clause does not specify the nature of loss that such a partner could claim from the former partner, it could prove controversial on the floor of the House on the concept of courtship.

Clause 76:(l) stipulates: “Except as provided in this section a promise by a person to marry another person is not binding.”

But sub-clause two provides: “Despite subsection (1), damages may be recoverable by a party that suffers a loss when the other party refuses to honour a promise to marry.”

Ol-Jororok MP John Waiganjo has introduced an amendment to delete sub-clause two. Waiganjo says the clause, if left to stand, would negate the concept of courtship.

“There is no guarantee that courtship will necessarily lead to marriage. We are likely to see a proliferation of court cases with people demanding to be compensated on the basis of promises made on the spur of the moment.

“People should be left alone to determine the direction of their courtship. The clause as it is essentially dilutes the concept of courtship where people make all manner of promises. It is not sustainable,” Waiganjo said.

NOT BINDING

The MP said since the first section of the clause is clear that a promise to marriage is not binding, it is illogical to open a window that might see court corridors jammed with broken hearts.

“We cannot introduce through the backdoor a second sub-clause that has already been invalidated by the first one,” Waiganjo said.

The amendment falls under Part 11 (Rights of Action) of the Bill.

Waiganjo is confident that he has marshalled enough numbers to enable his amendment to sail through the committee stage today. This is one of the final stages towards enactment of the Bill.

Another controversial amendment seeks to delete a clause compelling men to seek the consent of their wives before marrying a second wife.

The amendment introduced by the Justice and Legal Affairs Committee split the House during debate.

Those supporting the deletion of the clause argued the Bill essentially sought to ‘kill’ polygamy. If the amendment sails through, it would clear the final hurdle for men towards polygamy.

An additional amendment seeks to expand grounds upon which a marriage may be dissolved to include ‘exceptional depravity by either party’ or ‘the irretrievable breakdown of the marriage’. The two are in addition to adultery, cruelty and desertion.

One of the definitions the Bill gives to a marriage that has ‘irretrievably broken down’ includes cases where a partner has been sentenced to a prison term of seven years or more.

Another amendment seeks to clarify the statement that each party to a marriage has ‘equal rights and obligations’ at the time of the marriage, during the marriage and at dissolution of the marriage.

The proposed amendment to include ‘equal obligations’ targets a clause that only referred to ‘equal rights’ alone.

It reads: “Parties to a marriage have equal rights and obligations at the time of the marriage, during the marriage and at the dissolution of the marriage.”

On the proposal to deny either party the right to seek damages for broken promises, veteran lawyer John Khaminwa called for caution. 

He said that the contents of the clause are consistent with the common law in England, and is therefore applicable to the Commonwealth countries such as Kenya.

“In England, if you walk away from a woman after committing yourself to her, you are likely to end up in a court of law,” Khaminwa said.

He explained that MPs opposed to the clause may be misinterpreting the provision on the basis of verbal commitments by either party.

In Khaminwa’s view, a broken promise may include walking away after payment of dowry or putting an engagement ring on someone’s finger.

“Telling someone ‘I love you’ does not constitute a promise that would lead someone to seek damages,” Khaminwa explained.

If the lawyer’s interpretation is correct, the part that Waiganjo seeks to have deleted could ironically have been designed to protect men whose partners walk away after the payment of dowry.