1

POLYGAMY
Introduction
Marriage is the formal union of a man and a woman, typically as recognized by
law, by which they become husband and wife.
1

Article 16 of the universal declaration of the Human Rights under its clauses
provides firstly, that men and women of full age, without any limitations due to
race, nationality or religion, have the right to marry and to found a family. They
are entitled to equal rights as to marriage, during marriage and its dissolution.
The second clause states that marriage should be entered into only with the free
and full consent of the intending spouses and thirdly, that the family is a natural
and fundamental group unit of society and is entitled to protection by society and
the state.
2

Article 23 of the International covenant on Civil and Political Rights similarly
provides as above. Article 45 of the Constitution of Kenya, 2010 as well makes
similar provisions with regard to a family and marriage.
Marriage is what brings about monogamy or polygamous union.

1
www.academia.edu accessed on 20
th
January, 2014
2
See Universal Declaration of Human Rights and the International Covenant on Civil and
Political Rights, Articles 16 and 23 respectively.
2

Marriage is basically the key factor to the creation of a family as the basic unit of
a social order.
Polygamy is hotly contested practice and open to widespread misunderstandings.
This practice is defined as a relationship between either one husband and
multiple wives or the wife and multiple husbands at the same time.
3
Its the
practice or custom of having more than one wife or husband at the same time.
4

Polygamy can either take the form of polygyny where a man has more than one
wife at the same time or polyandry where a wife has more than one husband at
the same time.
Today, polygamy almost exclusively takes the form of one husband and multiple
wives. Polyandry in the Kenyan culture is treated as if it is a practice going
against the customs of the society.

The recent scenario at the Coast where two men entered into an agreement to
share one wife elicited mixed reactions among Kenyans terming it as immoral
and goes against the Kenyan African culture on marriage.
Polygyny therefore and polyandry in the modern society have elicited various
reactions and perceptions. The practice of polygamy was common and widely
accepted in ancient society where society was governed by customary laws.

3
www.academia.edu, accessed on 24
th
January, 2014
4
Concise Oxford English Dictionary, Eleventh Edition
3

Modern society has opted for civil marriages in the codified statute and religious
marriage.
However there are parties who still opt to conduct customary marriage
5

Most customs allow polygamous marriage.
The rights of parties under customary Marriage are protected not only in statute
but also under the constitution as provided under Article 45 (4)(a) which
mandates parliament to enact laws that recognize marriage concluded under any
tradition, or system of religions, personal or family law.
Section 3(5) of the Law of Succession Act recognizes a wife married under a
system of law that permits polygamy as a wife for purposes of succession and
her children as dependants of the deceased.
Section 40 of the Act details the mode of distribution of the estate of the
deceased person where he had contracted a customary marriage and has more
than one wife.
Kenya has 42 tribes each tribe with its customs and practices including how
marriages are conducted. These unions are generally polygamous in nature and
the parties when entering into such marriages are well aware of this fact.
Customary law marriages are regarded as binding among the parties to such
unions and having the force of law just like statutory marriages.

5
Star Newspaper, Wednesday, October 2, 2013.

4


Customary law marriages which are potentially polygamous are however treated
as inferior to statutory marriages.
The Judicature Act as it enlists the sources of laws in Kenya, under section 3 (2)
provides that the High Court, the Court of Appeal, and all subordinate courts
shall be guided by African Customary Law in civil cases in which one or more of
the parties is subject to it or affected by it, so far as it is applicable and is not
repugnant to justice or morality or inconsistent with any written law and shall
decide all such cases according to substantial justice without undue regard to
technicalities of procedure and without undue delay.
6

This provision provides the basis for the statutory recognition of customary law
marriages but such marriages are treated inferior as opposed to statutory
marriages.
Customary law marriages are recognized under various substantive Kenyan laws
but there is no specific statute that explicitly provides for the Kenyan African
customary law marriages.
Section 11 (1) (d) of the Marriage Act for instance provides that neither of the
parties to a marriage should be married under African Customary Law or in
accordance with Mohammedan law to any other person other than with whom
such marriage under which is proposed to be contracted.

6
Judicature Act, Cap. 8 of the Laws of Kenya, Section 3(2)
5


Section 49 of the Marriage Act and 171 of the Penal Code respectively provides
grounds for non-recognition of customary law marriages and the penalty as
provided by section 171 of the Penal Code .The Evidence Act Section 130 also
provides a basis for the recognition of customary marriages.
In Kenya though with modernity, most marriages are either civil or religious but
still various elements of customary law are still appreciated such as payments of
dowry etc.
Most marriages in rural Kenya are potentially polygamous having been
contracted under the customary law.
The controversial issue of polygamy re-entered the spotlight in October 2010
when Africas foremost polygamist, Ancentus Akuku who died at the age of 94
years.
He is believed to have married approximately 130 women (seven of whom he
divorced) as is said to have left one hundred widows and over two hundred
children.
Polygamy is permitted in Kenya under Customary Law (as opposed to the Civil
Law) which means that the practice is largely unregulated. It is a highlight of
legally status, wealth and successes.

6

Polygamy is a practice that has been condemned by the International Community
because of its adverse effects on women see (Banda, 2008)
7

Under Islamic law which is practiced in Kenya, a man is allowed to marry more
than one wife up to a maximum of four wives. This is polygamy as recognized
under the Mohammedan Marriage and Divorce Act.
Polygamy has various implications associated with it namely; Social, Economic
and Health implications.
Social Implications
It stereotypes women into reproductive and service roles (Cook and Kelly, 2006)
It is inherently asymmetric. The fact that a man can bring a new spouse into the
family house, if he feels that his existing wife is not fulfilling her marital duties,
places pressure on the first wife to perform and perpetuates sex-stereotyping.
Polygamy can damage marital close relationship by introducing the second wife
into the family.



7
polygamy and the Rights of women, Dr Ruth Gaffrey, University Wales,
Newput

7

Economic Implications
It is disadvantageous to the first wife and his children who are required to share
the family resources. Even if a man is sufficiently wealth to provide for all his
wives and children like Akuku did, he may be unable to maintain this after his
death.
Von Struensee (2005) explains that many Africans inheritance systems bar
women who have married under customary law from inheriting, which means
that many plural wives receive nothing from their husbands estate.
In Mujawo v Chogugudza, a woman who contracted a customary marriage in
Zimbabwe was denied a share of her deceased husbands estate, as the law
favoured the wife married under civil law.
The law relating to matrimonial property has also been disadvantageous to
women in plural marriage. African customary law often entitles a man to control
his wifes property and consequently, a womans property may be used to attract
additional wives and to subsequently support them and their children. The
current matrimonial property Act, 2013 under section 7 promotes equality in
sharing of matrimonial property.



8

Health Implications
The first wife may suffer psychologically if her husband takes an additional
spouse due to the harm caused to the relationship by the loss of exclusivity.
Polygamous marriage can also affect a womans physical health. For example
Uganda, Kenya and other African jurisdictions have high levels of HIV/AIDS
(Cook and Kelly, 2006 pg. 13) and the risk of spreading such diseases is
obviously increased if a man has several sexual partners. Women in such
marriage are also sometimes engaged in extra-marital sexual intercourse despite
the fact that it is frowned upon, due to lack of attention received from their
husbands.
8
This spreads Sexually Transmitted Diseases.
Imperfect information of the applicable laws customary law does not have a body
of precedent to inform women of the consequence of their choice.

8
Cook, R. and Kelly, L.M 2006. Polygamy and Canadas obligations under
International human Rights Law Department of Justice, Lenaola Family children
and Youth section.
See also Von Struensee, V.M.G. 2005 The contribution of polygamy and womens
oppression and improvement. An argument for its prohibition. Murdoch
University Electronic Journal of Law Vol. 2
See World public opinion Department. 2008. On the Treatment of Widows and
divorced women.
See Bartholomew, G.W Polygamous Marriages, in (1952) 15 modern Law
Review 37.



9

LEGAL ARGUMENTS AGAINST POLYGAMY
English law to which Kenyan laws on marriage are modelled is hostile to
polygamy. Remarks of Sir Robert Hamilton as, in Rex v Amkeyo. This hostility is
displayed openly in the decisions emanating from the English Courts where
polygamous marriage came up for consideration.
In Hyde v Hyde and Woodmanse (1866) ILR 1 P & D 1230, the court
declared that it had no jurisdiction to grant matrimonial relief in a potentially
polygamous marriage contracted in the United States of America.
In the matter, the petitioner was a woman whose faith recognized polygamy, his
marriage to the respondent was therefore polygamous.
9

Section 2 of the Matrimonial Cause Act defines a marriage as a voluntary un ion
of one man and one woman for life to the exclusion of all others.
In Baindail v Baindail (1946) p 122, the court recognized a potentially
polygamous marriage only for the purpose of enabling the English woman to
obtain a decree of nullity of marriage where she had protected to marry a man
whose personal law allowed polygamy.
The hostility to polygamy was founded on the Christian believe that God had
ordained only the monogamous marriage and that polygamy really was a
practice that encouraged adultery.

9
the rule in Hyde v Hyde also see family law class notes, by Justice William Musyoka, 2014
10

However there is no really, law which can be said to be truly Christian or
applying exclusively to Christians.
In Rex v Amkeyo, 1917 KLR 14, Sir Hamilton CJ said that he did not think
that it can be said that the native custom on Marriage approximates in any way
the legal idea of marriage. This is the English perception of the customary and
marriage which is potentially polygamous.
Kenyas statue law prohibits polygamy. Section 11(d) of the Marriage Act
provides that neither of the parties to a marriage should be married under
African Customary law or in accordance with Mohammedan law to any other
person other than with whom such marriage is proposed to be contracted.
Section 49 of the same Act provides that whoever contracts a marriage under the
Act, being at the time married in accordance with native law or custom of in
accordance with mohammedan laws to any person other than the person with
whom a marriage is contracted, is guilty of an offence and liable to imprisonment
for a term not exceeding five years. Indeed such an act would constitute the
offence of bigamy under section 171 of the Penal Code.
Section 35(1) of the Marriage Act makes provision that no marriage in Kenya
shall be valid where either of the parties at the time of celebration of such
marriage is married by native law or custom to any person other than the person
with whom such marriage is had. This was the case in the matter of the marriage
Act and Alfred Nderi where a woman who was a wife married under customary
11

law prevented, through lodging a caveat, her husband from contracting a
marriage, under the law that governs monogamy, with another woman while the
customary marriage was subsisting.
Problem of Polygamy in focus
African customary law marriage is potentially polygamous. The man has capacity
to marry as many wives as he wishes.
10

There is no requirement that the first wife be notified of the proposed marriage
before or after it takes place. Neither does she have a right to protest the
intended marriage. The husband is under no obligation to declare the new
marriage to the other wife or wives, and he may never tell her or them about it.
A wife married under customary laws has no control whatsoever over the mans
right to convert an otherwise monogamous marriage into a polygamous one,
neither can she control the number of wives the husband marries.
Men are permitted plural marriages and women are not. This is reffered to as
structural inequality.
The woman can only marry one man during the subsistence of evolved marriage
under the African customary laws governing Kenyan communities. Women have
no say.

10
Contran E., Restatement of African Law, marriage and Divorce in Kenya.
12

It is seen as a wrong practice. Its recognition by the Kenyan statute law exposes
women to treatment as second rate citizens who enjoy fewer rights than men.
11

Diminution in Self-esteem
Polygamy appears to allow the spouse to fundamentally change the quality and
the nature of the couples family life together depriving the other spouse of the
same right.
It often leads to a situation where the wives have to compete for scarce
resources and in fact it is blamed for the high rate of illiteracy as the battle that
follow the event of the mans death for the control of his estate.
12

The risk of wife inheritance increase the risk of contracting HIV/AIDS and other
STDs. This is common especially in the Luo, Luyah, Kisii communities etc
Under customary law polygamy does not give the wife the right to seek divorce
from her husband on the basis of loss having married another wife she cannot
obtain a divorce on the ground that the husband has had an adulterous
relationship with one or more women unless that woman is married.

11
See Moyambale, E.N., Changing the terms of the debate: Polygamy as the
rights of women in Kenya, Uganda, also see class notes by Justice William
Musyoka.

12
Moyambale E.N. Changing the terms of debate, polygamy and the rule of
women in Kenya& rules in (1997) 3 (2) East African Journal of Peace and Human
Rights 208 at 215.

13

In Damaris Irene Ngare Vs Muarice B.A. Ogola Kisii HCCA No. 24 of 1980,
a woman married under a Luo customary law sought divorce on several grounds
which included adultery. She alleged that the husband had on several occasions
brought other women to their matrimonial house and in the process denied her
conjugal rights.
The court denied her the divorce on the ground that she has not proved her
case. The women who allegedly had sexual relations with her husband were
found to have been married under Luo customary law. The women could only
divorce her husband for habitual sex with the married women.
This is demeaning and approval of the polygamous relationships.
Demonstrates how bad polygamous marriage of relationships are against the
woman in African customary law marriage which is potentially polygamous.








14

CONCLUSION
The Kenyan situation as to the prevailing of polygamy is as a result of lack of
knowledge as the existing provisions of the marriage laws which prohibits
polygamy.
Polygamy is more prevalent in rural Kenya as opposed to urban areas.
This is due to high cost of living especially in urban areas.
The acquisition of formal education by the female is likely and has acted as a
point in reduction of polygamy in Kenya. An educated woman is less likely to
accept or enter into a polygamous marriage as opposed to an illiterate woman.
The acquisition of formal education by the man also has to some extend
contributed to less polygamy due to the embracing of the western rules and
activities marriage under the statute law.
Customary law is therefore, with regard to marriage is more practiced in rural
areas as opposed to urban areas.
Indeed several factors have contributed to the reduction in polygamy:-
Effects of womens formal education, religion, effects of mens formal education,
urbanization, age at first marriage etc.


15

REFERENCES
Constitution of Kenya, 2010
www.academia.edu
Star Newspaper, Wed. October 2, 2013.
Law of Succession Act, Cap.
Marriage Act Cap.
Matrimonial Property Act, 2013
Marriage Bill, 2013
Evidence Act, CAP. 180
Penal Code Cap.
Polygamy and the Right of Women, Dr Ruth Gaffrey, University Wales, Newput
Mohammedan Marriage and Divorce Act
Cook, R. and Kelly, L.M. 2006. Polygamy and Canadas obligations under
international Human Rights Law.