This archive report was first published on 27 September 2019.
On September 27, 2019, a significant ruling was made by Justice Reuben Nyakundi in a case that challenged the constitutionality of section 66 (1) of the Marriage Act.
The law in question had imposed a three-year limitation on couples in civil unions who sought to divorce, a restriction that did not apply to those married under Christian, Muslim, Hindu, or traditional religions.
Justice Nyakundi declared the section unconstitutional, stating that marriage is a union of willing partners who should be free to leave at any time if they feel discontented.
He argued that imposing a three-year limitation was an affront to a person's human dignity, forcing them to remain in a failed marriage against their will.
The judge also questioned the reasoning behind the three-year limitation, noting that there was no explanation for why it was not imposed on other types of marriages.
The case was filed by lawyer Tukero ole Kina, who argued that the limitation was unconstitutional and akin to slavery.
While opposing the case, the Attorney General and Parliament defended the law, arguing that it was meant to protect marriages and that lawmakers had carried out public participation during its enactment.
However, Justice Nyakundi found that the section was unconstitutional, and couples in civil unions are now free to divorce at any time.
