FAMILY LAW
UNIVESITY OF NAIROBI
PARKLANDS CAMPUS
FACULTY OF LAW
INTRODUCTION
1. Family as an institution
2. History of the Family as an Institution
3. Historical Backgrounds of Family law in Kenya.
Family as an Institution:
In one social context a family may refer to a man and a woman who share a common
household. In another, it is defined as all persons who share blood relations. In others, it
is defined as all persons who share a household. In others still it means all the members
of a household, including parents and children with perhaps other relations, lodgers and
even servants.
Legally, the term family is a restricted concept. There are certain formal pre-requisites
that have to be met and the main one is a marriage ceremony. In law a family is created
when families enter into a legally recognised marriage. The law also restricts the right to
terminate that legal status. The family is registered because it serves a number of
purposes in society.
1. It is the basic component of a society organisation- Article 16 of the Universal
Declaration of Human Rights.
2. It is the basic economic unit of society that is most productive activities take
place within the family set up.
3. The family setup provides for a framework for the parties to have satisfactory
sexual expression.
4. It guarantees perpetuation of society through the receiving of offspring.
5. It provides a framework for companionship between the members of that
family.
THE OBJECTS OF FAMILY LAW
1. It seeks to define status between the parties in that family i.e. it defines what
rights a member of the family can claim over the other or over the other’s
property. Altering the status of parties in the family.
2. A remedial role; that is it serves to protect certain weaker members of that
family e.g. children. On termination of a family relationship there are certain
members who may need protection especially economic protection. Note. The
trend now is that not all family relationships are created by marriage
1
, ceremonies such as cohabitation, single parents. The law has developed to
recognise some of these relationships.
Major functions of family law
HISTORY OF THE FAMILY AS AN INSTITUTION.
The trend now is that not all family relationships are actually created inside a marriage
relationship. Some of the developments in law have been to deal with these issues, under
common law and equity there is recognition given to cohabitees. Children born out of
marriage also acquire.
Family law as an institution also has a history.
Engel’s: The origins of the family, Private Property and the state. In this book the
author states that the institution of the family has not existed for all times. There was an
ancient primitive stage of promiscuity where there were no restrictions. The authors have
met criticism for alleging this fact but this points to an earlier stage when there was no
family existing. The family developed along four main stages
1. Consanguine Family;
2. Punuluan Family
3. Pairing Family
4. Monogamous Family
Consanguine and Punuluan Families are based on group marriages and the pairing and
monogamous family and at this stage the society tries to disassociate itself from group
marriages.
Engel says that marriage groups were separated according to generations so that you find
that one generation consisted of husbands and wives who could relate so long as they
belonged to the same generation. Parents and child could not relate. Remnants of this
type of marriage at the time he was writing in the early 19th Century could still be found
among some Hawaiian tribes.
In the Punuluan stage brother and sister were excluded from sexual relations. In the
consanguine family so long as you belonged to the same generation you could have
sexual relations. The Punuluan type of society was found among Indian tribe called the
Punulua.
These forms of group marriage it was uncertain as to who the father of any particular
child was but it was certain who the mother was so that group marriages were the origin
of tracing descent through the mother’s line so that we have matriarchy being the form of
tracing descent. The author again says that societies that are matriarchal originated from
here.
2
,PAIRING FAMILY
The essence of the pairing family is that one man lives with one woman. Polygamy and
occasional infidelity on the part of the man is permissible. However the woman is
required to be strictly faithful and adultery on her part is strictly punished. To some
people this is where subjugation of women starts.
Restrictions on sexual relations are extended so that there is a progressive stage within
which conjugal relations can take place. In the pairing family conjugal relations are more
restricted and women are restricted only to their husbands who cannot be their brother.
MONOGAMOUS FAMILY
This is different from the pairing family in two ways
1. There is a much greater stress that is given to the marriage institution, in the
pairing family dissolution of marriage is relatively easy but in a monogamous
family a marriage cannot be dissolved unless some formalities are followed.
The rights to conjugal relations are extended to the wife because it is not only
the wife who has to be faithful but the man as well. The authors of this text
say that the main purpose of the rise of the monogamous family is to produce
children of undisputed paternity and this is important for purposes of
inheritance. That is the linkage that the authors make in the rise of family and
private property ownership. Those who then own property become the rulers
and that is the link between family, property ownership and the state.
The main reason that this history becomes relevant is when we look at the conflicts that,
it is argued that when we came into contact with the Europeans, our predominant form of
family was Pairing Family. In some societies still were in the Punuluan. That means that
the Europeans found us at pairing and imposed laws which were applicable to the
monogamous family and therefore we find tension existing between the two different
systems of law right from the very beginning. Those tensions have existed and that is the
reason why harmonisation of the different family law situations appears to be difficult.
HISTORICAL DEVELOPMENT OF FAMILY LAWS IN KENYA
The studying point in family law is the 1897 East Africa Order in Council that applies
certain Indian and British Statutes to the East African Protectorate. It also applies the
common law of England that was in force at the time. Insofar as the inhabitants were
concerned, it provided that cases against natives would be brought in native courts. A
Commissioner was given the power to establish and abolish the Native Courts and to
regulate their procedure as well as give directions as to the application of local law and
custom.
As a result of this power, the commissioner made the native court regulations of
1897.Thus,in matters affecting the personal status of natives, the law of their caste or
tribe insofar as it could be ascertained and insofar as it was not repugnant to national
3
, morality could be applied. For those natives who were Muslims, Islamic law would
apply to them and this was with regard to matters affecting personal status.
This same formulation is what we basically find in our judicature Act insofar as the
application of customary law is concerned. The provisions were further modified but the
origins are Native Courts Regulations.
There were also two other communities in Kenya at the time, the British Colonisers and
the Indians who had been brought in as labourers and the issue here was whether for
those groups they applied Indian Act or British Laws and common law rules were
applied. The Indian Law was basically British law that had been passed in India and
there was not much difference between the two, they were obviously geared for
application to the British Settler but did they apply to the Hindu? The assumption was
that in Kenya, they would apply.
For example the Indian Succession Act of 1865, this was one of the Indian applied Acts
under the 1897 Order in Council. In India it had been expressly stated that that particular
Act did not apply to succession matters of Hindus in which case in India they applied
their customary succession laws in matters of succession. When this particular Act was
applied in Kenya there was no such exclusion with regard to the Kenya Hindus. There
were also issues as regards marriage and divorce and they applied English Marriage
Laws. There was a bit of problem with regard to the Hindus in Kenya especially between
1897 and 1898 when it was stated that the Indian Succession Act did not apply to Hindus
and that they were to be governed by their own customary law. For those Hindus who
had converted to Christianity, two Acts were passed to cater for their succession, the
Hindu Wills Act and the Probate and Administration Act of India, the assumption was
that the orthodox Hindus applied their customary law in matters of succession.
As early as 1898 we have all these laws governing different peoples. In 1902 we got the
East Africa Order in Council of 1902 whose main purpose was to clarify further when
customary law applied. It was stated that in all cases whether civil or criminal in which
natives were parties, the courts would be guided by native law in so far as it was
applicable and not repugnant to justice and morality or inconsistent with any law made in
the protectorate. This formulation of the Order in Council is the same formulation that
we have in Section 3 of our Judicature Act insofar as application of customary law is
concerned. In areas of family law for those natives who still practice customary law are
still governed by African Customary Law. Muslims still continue to be governed by
Muslim Law but with Hindus a number of developments occurred which made the
Hindus to adopt laws that were similar to those found in the statues.
The 1902 Order in Council gave the commissioner power to make laws that would apply
in the protectorate and one of the first laws that were made in 1902 was the Marriage
Ordinance. This Ordinance was a law of general application in the sense that it was not
limited by race or religion and was meant to apply to all residents in the protectorate. It
provided for basically a Christian form of marriage which was strictly monogamous and
made it an offence for a person married under customary law to contract a marriage under
4
UNIVESITY OF NAIROBI
PARKLANDS CAMPUS
FACULTY OF LAW
INTRODUCTION
1. Family as an institution
2. History of the Family as an Institution
3. Historical Backgrounds of Family law in Kenya.
Family as an Institution:
In one social context a family may refer to a man and a woman who share a common
household. In another, it is defined as all persons who share blood relations. In others, it
is defined as all persons who share a household. In others still it means all the members
of a household, including parents and children with perhaps other relations, lodgers and
even servants.
Legally, the term family is a restricted concept. There are certain formal pre-requisites
that have to be met and the main one is a marriage ceremony. In law a family is created
when families enter into a legally recognised marriage. The law also restricts the right to
terminate that legal status. The family is registered because it serves a number of
purposes in society.
1. It is the basic component of a society organisation- Article 16 of the Universal
Declaration of Human Rights.
2. It is the basic economic unit of society that is most productive activities take
place within the family set up.
3. The family setup provides for a framework for the parties to have satisfactory
sexual expression.
4. It guarantees perpetuation of society through the receiving of offspring.
5. It provides a framework for companionship between the members of that
family.
THE OBJECTS OF FAMILY LAW
1. It seeks to define status between the parties in that family i.e. it defines what
rights a member of the family can claim over the other or over the other’s
property. Altering the status of parties in the family.
2. A remedial role; that is it serves to protect certain weaker members of that
family e.g. children. On termination of a family relationship there are certain
members who may need protection especially economic protection. Note. The
trend now is that not all family relationships are created by marriage
1
, ceremonies such as cohabitation, single parents. The law has developed to
recognise some of these relationships.
Major functions of family law
HISTORY OF THE FAMILY AS AN INSTITUTION.
The trend now is that not all family relationships are actually created inside a marriage
relationship. Some of the developments in law have been to deal with these issues, under
common law and equity there is recognition given to cohabitees. Children born out of
marriage also acquire.
Family law as an institution also has a history.
Engel’s: The origins of the family, Private Property and the state. In this book the
author states that the institution of the family has not existed for all times. There was an
ancient primitive stage of promiscuity where there were no restrictions. The authors have
met criticism for alleging this fact but this points to an earlier stage when there was no
family existing. The family developed along four main stages
1. Consanguine Family;
2. Punuluan Family
3. Pairing Family
4. Monogamous Family
Consanguine and Punuluan Families are based on group marriages and the pairing and
monogamous family and at this stage the society tries to disassociate itself from group
marriages.
Engel says that marriage groups were separated according to generations so that you find
that one generation consisted of husbands and wives who could relate so long as they
belonged to the same generation. Parents and child could not relate. Remnants of this
type of marriage at the time he was writing in the early 19th Century could still be found
among some Hawaiian tribes.
In the Punuluan stage brother and sister were excluded from sexual relations. In the
consanguine family so long as you belonged to the same generation you could have
sexual relations. The Punuluan type of society was found among Indian tribe called the
Punulua.
These forms of group marriage it was uncertain as to who the father of any particular
child was but it was certain who the mother was so that group marriages were the origin
of tracing descent through the mother’s line so that we have matriarchy being the form of
tracing descent. The author again says that societies that are matriarchal originated from
here.
2
,PAIRING FAMILY
The essence of the pairing family is that one man lives with one woman. Polygamy and
occasional infidelity on the part of the man is permissible. However the woman is
required to be strictly faithful and adultery on her part is strictly punished. To some
people this is where subjugation of women starts.
Restrictions on sexual relations are extended so that there is a progressive stage within
which conjugal relations can take place. In the pairing family conjugal relations are more
restricted and women are restricted only to their husbands who cannot be their brother.
MONOGAMOUS FAMILY
This is different from the pairing family in two ways
1. There is a much greater stress that is given to the marriage institution, in the
pairing family dissolution of marriage is relatively easy but in a monogamous
family a marriage cannot be dissolved unless some formalities are followed.
The rights to conjugal relations are extended to the wife because it is not only
the wife who has to be faithful but the man as well. The authors of this text
say that the main purpose of the rise of the monogamous family is to produce
children of undisputed paternity and this is important for purposes of
inheritance. That is the linkage that the authors make in the rise of family and
private property ownership. Those who then own property become the rulers
and that is the link between family, property ownership and the state.
The main reason that this history becomes relevant is when we look at the conflicts that,
it is argued that when we came into contact with the Europeans, our predominant form of
family was Pairing Family. In some societies still were in the Punuluan. That means that
the Europeans found us at pairing and imposed laws which were applicable to the
monogamous family and therefore we find tension existing between the two different
systems of law right from the very beginning. Those tensions have existed and that is the
reason why harmonisation of the different family law situations appears to be difficult.
HISTORICAL DEVELOPMENT OF FAMILY LAWS IN KENYA
The studying point in family law is the 1897 East Africa Order in Council that applies
certain Indian and British Statutes to the East African Protectorate. It also applies the
common law of England that was in force at the time. Insofar as the inhabitants were
concerned, it provided that cases against natives would be brought in native courts. A
Commissioner was given the power to establish and abolish the Native Courts and to
regulate their procedure as well as give directions as to the application of local law and
custom.
As a result of this power, the commissioner made the native court regulations of
1897.Thus,in matters affecting the personal status of natives, the law of their caste or
tribe insofar as it could be ascertained and insofar as it was not repugnant to national
3
, morality could be applied. For those natives who were Muslims, Islamic law would
apply to them and this was with regard to matters affecting personal status.
This same formulation is what we basically find in our judicature Act insofar as the
application of customary law is concerned. The provisions were further modified but the
origins are Native Courts Regulations.
There were also two other communities in Kenya at the time, the British Colonisers and
the Indians who had been brought in as labourers and the issue here was whether for
those groups they applied Indian Act or British Laws and common law rules were
applied. The Indian Law was basically British law that had been passed in India and
there was not much difference between the two, they were obviously geared for
application to the British Settler but did they apply to the Hindu? The assumption was
that in Kenya, they would apply.
For example the Indian Succession Act of 1865, this was one of the Indian applied Acts
under the 1897 Order in Council. In India it had been expressly stated that that particular
Act did not apply to succession matters of Hindus in which case in India they applied
their customary succession laws in matters of succession. When this particular Act was
applied in Kenya there was no such exclusion with regard to the Kenya Hindus. There
were also issues as regards marriage and divorce and they applied English Marriage
Laws. There was a bit of problem with regard to the Hindus in Kenya especially between
1897 and 1898 when it was stated that the Indian Succession Act did not apply to Hindus
and that they were to be governed by their own customary law. For those Hindus who
had converted to Christianity, two Acts were passed to cater for their succession, the
Hindu Wills Act and the Probate and Administration Act of India, the assumption was
that the orthodox Hindus applied their customary law in matters of succession.
As early as 1898 we have all these laws governing different peoples. In 1902 we got the
East Africa Order in Council of 1902 whose main purpose was to clarify further when
customary law applied. It was stated that in all cases whether civil or criminal in which
natives were parties, the courts would be guided by native law in so far as it was
applicable and not repugnant to justice and morality or inconsistent with any law made in
the protectorate. This formulation of the Order in Council is the same formulation that
we have in Section 3 of our Judicature Act insofar as application of customary law is
concerned. In areas of family law for those natives who still practice customary law are
still governed by African Customary Law. Muslims still continue to be governed by
Muslim Law but with Hindus a number of developments occurred which made the
Hindus to adopt laws that were similar to those found in the statues.
The 1902 Order in Council gave the commissioner power to make laws that would apply
in the protectorate and one of the first laws that were made in 1902 was the Marriage
Ordinance. This Ordinance was a law of general application in the sense that it was not
limited by race or religion and was meant to apply to all residents in the protectorate. It
provided for basically a Christian form of marriage which was strictly monogamous and
made it an offence for a person married under customary law to contract a marriage under
4
