A constitutional battle that could redefine the boundaries of marriage and religious freedom in Kenya is steadily gathering momentum at the High Court in Kitale.
79-year old Boniface Ndura Koimburi is challenging laws that criminalize bigamy under Christian marriage, arguing that they infringe on fundamental rights guaranteed by the Constitution. On Wednesday, the court granted Koimburi 30 days to file substantive written submissions in support of his petition.
After service of those submissions and supporting authorities, the Attorney General will have 30 days to respond. The matter will then return to court in June for highlights and a judgment date.
The case was mentioned for directions on the main petition after parties concluded all interlocutory applications. Among them was a request to empanel a three-judge bench, an application the court declined citing limited judicial resources and the constitutional principle of expeditious justice.
Justice Robert Limo adjourned the matter but granted the petitioner liberty to file and serve his submissions. Upon service, the State will be required to file a rejoinder within 30 days.
The AG’s representative was absent during the mention due to bereavement and was still on compassionate leave. In her absence, the court proceeded to issue directions to ensure the matter moves forward.
The petitioner’s advocate Dennis Wanyama expressed confidence in the progress of the case.
“In terms of chronology, this matter is moving. We expected a response from the Attorney General, especially after filing the amended petition, but none has been filed to date,” Wanyama told the court.
At the heart of the petition is a challenge to Section 171 of the Penal Code and Sections 6, 8, 9, and 11 of the Marriage Act, which entrench monogamy in Christian marriages. Ndura argues that the provisions violate Article 32 of the Constitution on freedom of religion and belief, as well as Article 45, which guarantees the right to marry and found a family based on personal convictions.
The amended petition also challenges the Christian Religious Education (CRE) curriculum developed by the Kenya Institute of Curriculum Development (KICD), which Koimburi claims promotes a biased and exclusionary view of Christian marriage..
