Council of Imams and Preachers of Kenya, Malindi & 4 others v Attorney General & 5 others (Constitutional Petition 40 of 2011) [2015] KEHC 1762 (KLR) (29 October 2015) (Ruling)

Facts

The Council of Imams and Preachers of Kenya, Malindi & 4 others filed a constitutional petition against the Attorney General and 5 others alleging contravention of fundamental rights and freedoms, particularly Articles 32, 45(2), 50(2)(n), and 170(5) of the Constitution of Kenya.

Issues

1. Whether a child professing the Islamic faith had the capacity to marry and/or be married under Islamic laws and whether such a marriage was lawful under the laws of Kenya.
2. Whether the prohibition of marriage for persons below the age of 18 years was a limitation on the freedom of conscience or religious practice for persons professing the Islamic faith.

Reasoning

The court held that the Convention on the Rights of the Child defined a child as anyone below the age of 18 years, unless under the law applicable to the child, majority was attained earlier. The Constitution recognized the right to marriage only as between adults of opposite gender and called upon Parliament to enact legislation that recognised certain marriages. Any marriage not in line with the Constitution, whether conducted under any tradition, system of religion or family law, had to be in line with the Constitution.

Outcome

The petition was dismissed.

Authorities cited