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Marriage, Divorce and Succession Laws in Kenya: Is Integration or Unification Possible?

Published online by Cambridge University Press:  28 July 2009

Eugene Cotran
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Extract

It gives me great pleasure to contribute to this liber amicorum for my colleague and friend James Read. I wish him a happy retirement though I suspect that his hunger for research and discovery into African law will continue. I met Jim some 36 years ago when I joined the School of Oriental and African Studies as a research officer in African law attached to the Restatement of African Law Project of which Tony Allott was the Director. Like me, Jim was then a young student of African law, being taught and coached by the pioneer of the subject, Tony Allott. Again, like me, Jim also specialized in East Africa and in the early 1960s we exchanged notes and ideas and collaborated on research into the customary and other laws of Uganda, Kenya and Tanzania. Naturally Jim took a special interest in my Restatement of African Law in Kenya and I am forever grateful for his encouragement and enthusiasm during the research and afterwards, when the Kenya Government decided to go further than the Restatement and integrate its marriage, divorce and succession laws. This article tells the story of the establishment of the two Kenya Commissions on the subject and asks whether such unification or integration is possible.

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Articles
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Journal of African Law , Volume 40 , Issue 2: SPECIAL FORTIETH ANNIVERSARY NUMBER LIBER AMICORUM FOR PROFESSOR JAMES S. READ , Autumn 1996 , pp. 194 - 204
Copyright
Copyright © School of Oriental and African Studies 1996

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References

1 [1987] J.A.L. 31, 15–17.CrossRefGoogle Scholar

2 “Marriage and divorce: a new look for the law in Kenya?” (1969) 5 East African Law Journal 107–140.Google Scholar

3 The writer was a Member and the Secretary of both Commissions. The Chairman of the Marriage Commission was the Hon. Lord Justice Spry (Court of Appeal for East Africa) and of the Succession Commission the Hon. Humphrey Slade, Speaker of the National Assembly of Kenya.

4 Report of the Commission on the Law of Marriage and Divorce, Nairobi, 1968.Google Scholar

5 Report of the Commission on the Law of Succession, Nairobi, 1968.Google Scholar

6 11 K.L.R. 30.

7 For a more detailed discussion of this problem, see Phillips, A., Report on Native Tribunals in Kenya, Nairobi, 1945Google Scholar; and J.N.D., Anderson, Islamic Law in Africa, London, 1954.Google Scholar

8 For a detailed commentary on the two Reports and its Recommendations, see (1969) 5 East African Law Journal which contains comments by the late Professor J.N.D. Anderson (with reference to the Muslim community); Professor J.D.M. Derrett (with reference to Hindu law); Professor O. Kahn-Freund; Professor Arthur Schiller; Justice N.A. Ollennu; Professor James Read (cited above, n. 2) and Mr Peter Le Pelley.

9 Marriage and Divorce Commission Report, paras. 20–23 and Succession Commission Report, paras. 19–23 and paras. 65–69. One Member of the Law of Succession Commission actually dissented on this matter. He was of the view that any new law on intestate succession should not be applied to Muslims (Succession Report, para. 70).

10 See “The rejection of the Marriage Bill in Kenya”, [1979] J.A.L. 109.Google Scholar

11 Law Reform Commission Act, No. 2 of 1982.

12 Several “Task Forces” were appointed to deal with different branches of the laws and appear to be an adjunct to the work of the Law Reform Commission. A “Child Law Task Force” has already reported and presented a Children Bill.

13 This is a great number of women compared with the Marriage Commission of 1967 which had only three women and 12 men and the Succession Commission which only had one woman and ten men.

14 Cap. 160, Laws of Kenya (Revised Edition 1981).

15 From 1 January, 1991, under the Statute Law (Miscellaneous Amendments) (No. 2) Act, 1990, which amended ss. 2, 3(1), 48 and 50 of the Law of Succession Act. One redeeming feature is that the laws relating to administration of estates do apply to Muslim estates and that succession to a Muslim estate is no longer linked to marriage.

16 At the time of writing in November 1966, the Task Force is still to report, over three years after its appointment, and is apparently without funds to continue its work.

17 Text to n. 2, above.