National Assembly of Kenya v Ole Kina & another (Civil Appeal 166 of 2019) [2022] KECA 548 (KLR) (10 June 2022) (Judgment)

Facts

The High Court declared section 66(1) of the Marriage Act of 2014 unconstitutional due to its disproportionate effect in civil marriages, while the National Assembly of Kenya challenged this decision.

Issues

1. Whether challenging the constitutionality of a provision without petitioning Parliament violates the doctrine of ripeness and exhaustion of remedies.
2. Whether a petition claiming discrimination was ripe for determination without showing specific discrimination.
3. Whether the differential treatment of parties to a civil marriage under section 66(1) was discriminatory.
4. Guiding principles in determining discrimination.
5. Whether the differential treatment met constitutional standards.
6. Whether the presumption of constitutionality could be rebutted.
7. Role of the High Court in interpreting legislative provisions and its relation to Parliament's legislative mandate.

Reasoning

The court held that the High Court had jurisdiction to determine the constitutionality of the provision and that the presumption of constitutionality does not exclude the court's jurisdiction. The court also clarified the principles of interpretation and the role of the High Court in relation to Parliament.

Outcome

The High Court's decision declaring section 66(1) unconstitutional was upheld.

Authorities cited