Couples who opt for Christian marriage or any other marriage other than civil are not required to obtain a certificate confirming they have no existing marriage, the High Court has ruled.
Justice Nyaundi Patricia Mande in a judgment delivered on Friday said that the certificate is only required in civil marriages under Section 32 of the Act.
The judge noted that the Registrar of Marriages was acting outside their mandate by requiring couples who wed in church or any other marriage to obtain the certificate.
The certificate is usually issued by the Registrar of Marriages, confirming that a Kenyan national has no existing marriage record and qualifies to get married outside the country.
The application for the certificate has to undergo a mandatory ten-day display at the nearest registrar’s office, depending on the applicant’s last place of residence.
The decision by the judge followed a suit filed by a couple whose wedding was stopped after the Registrar of Marriages refused to authorise the celebration of their intended marriage.
The Registrar notified them that they could not proceed with the marriage and directed the groom to file a divorce suit and obtain a decree, noting that he was in a previous marriage for ten years under a customary marriage (between 2001 to 2011) and blessed with one child in his previous marriage.
SGM and RKM, in the suit filed through lawyers Peter Bore and Philip Odhiambo Malanga, said they had planned to wed on July 14, this year. They named the Registrar of Marriages as a respondent in the case.
The couple intended to celebrate the union under the Marriage Act, 2014 at PCEA Church Mukarara.
Bore said the declaration by the court is good news to those aspiring to celebrate Christian marriage.
Bore said the requirement by the Registrar of Marriages was introduced through the back door. Any objection raised in regard to Christian Marriages he said should be made in the church and communicated to the person in charge of the place of worship.
The power of the church in Christian marriages, he said, has been restored.
He said the registrar had usurped the role of the church but the court has settled this.
“The person’s in-charge of public places of worship have their powers back, they shall hear the objection forthwith and make decisions. The judgment is clear, it is not the work of the Registrar of Marriages to vet and interfere with the process unless it is a civil marriage,” he said.
He said the registrar’s role in Christian marriage is to issue a certificate of marriage. “Having reviewed the Act, it is clear to me that there isn’t such a requirement under the Act. The certificate of no impediment only relates to civil marriages and the provisions of Section 50 must be interpreted accordingly. If parliament had intended that the Registrar has this power about Christian Marriages it would have expressly stated so,” read the judgment in part.
Stay informed. Subscribe to our newsletter
The judge noted that the law governing the formalisation of Christian marriage is provided for under Part III of the Marriage Act, adding that under Section 6, a Christian Marriage is ‘celebrated by the rites of a Christian denomination.’
She noted that under Section 32, the registrar has powers to issue a certificate of no impediment where there is no objection to the celebration of the marriage about civil marriages.
The judge noted that Registrar of Marriages is mandated under the Act to perform civil marriages, register all marriages, issue marriage certificates for all registered marriages, issue certificates of no impediment to persons who intend to marry and who qualify for such a certificate, determine the rules governing customary marriages and determine objections of notices to marry.
The roles of the registrar, the court noted, are provided for under Section 50(2) of the Marriage Act. The section, the court noted, cannot be read in isolation but must be read alongside Part III and Part IV summarised above and indeed the entire Act.
The court noted that marriages celebrated under Part III are distinct from those celebrated under Part IV which provides for Civil marriages.
The judge noted that under Sections 19 and 20 of the Act, it is the ‘marriage officer’ or person in charge of the public place of worship who decides on any objection to the marriage. After the determination, the decision the court said is communicated to both the parties and the registrar, and if any party is not satisfied, they may appeal to the court.
The judge said it is the person who officiates over the marriage ceremony that issues a copy of the marriage certificate to the parties.
Part IV that relates to Civil Marriages, she noted has a different procedure.
Under Section 25, the parties are required to give written notice of not less than 21 days to the registrar and the person in charge of the place where they intend to celebrate the marriage. The registrar then publishes the notice. Thereafter, the registrar or the person in charge of the place where the marriage is to be celebrated receives the notice of objection and decides on the same. In both instances, a party dissatisfied with the decision can move to court.
Judge quashed the decision of the Registrar of Marriages issued on June 30, this year, and ordered the church minister in charge of PCEA Church Mukarara to conduct the marriage as long as there is no objection or impediment as provided for under Section 19 of the Act.