1. INTRODUCTION

Unlike in some African countries, such as Tanzania and Malawi, where legislation provides for marriage by repute, in Kenya a marriage by repute is a creature of courts, on the basis of a broad interpretation of the Court of Appeal’s decision in Hortensiah Wanjiku Yawe v. Public Trustees. Since its introduction in 1976, the concept of marriage by repute has been contested by courts. Some judges have held that it is part of Kenyan law, whereas others have argued that it is not. This is because there is no legislation providing for marriage by repute. Attempts have been made to introduce legislation. However, they have so far been unsuccessful. It could, thus, be argued that the majority of Kenyan legislators are opposed to the presumption of marriage by repute, otherwise it would have been included in legislation. I will discuss these attempts here. However, before doing so, I will first demonstrate the views adopted by courts on whether marriage by repute is recognised in the Marriage Act.

2. COURTS AND THEIR VIEWS ON WHETHER THE MARRIAGE ACT RECOGNISES MARRIAGES BY REPUTE

The Marriage Act is silent on the issue of marriage by repute, and jurisprudence emerging from Kenyan courts is inconsistent on the question of whether a marriage by repute is still part of Kenyan law. There are instances where courts have answered this question in the affirmative. For example, in SWG v. HMKthe High Court relied on earlier case law on the presumption of marriage by repute and held that: