Petitioner wants Christians who support polygamy to be allowed to legally marry more than one wife.
High Court judge Antony Murima has ordered the Attorney-General to respond within the next 14 days to a petition by a Kitale resident challenging Kenya's laws on polygamy.
This comes after Kitale resident Boniface Ndura, author of 'Polygamists will also go to heaven', filed the petition challenging Section 171 of the Penal Code and Sections 6, 8, 9 and 11 of the Marriage Act, which affect monogamous Christian marriages, saying they are discriminatory.
The Attorney-General is yet to respond to the petition, which is scheduled to be heard in the Kitale High Court on December 4.
Mr Ndura, 78, wants the challenged legal provisions declared unconstitutional, allowing Christians who support polygamy to legally marry more than one wife.
"This move would create legal parity between Christian and Muslim communities, where polygamy is already recognised," he says.
He contends that the current legal framework, rooted in monogamous Christian marriages, violates the religious freedoms of those who interpret the Bible as supporting polygamy.
He cites biblical figures Abraham, Jacob, and King Solomon, who practised polygamy without divine condemnation, as evidence that polygamy has historical and theological roots in Christianity.
"Key provisions in the Penal Code and the Marriage Act unfairly impose a restrictive model of marriage on Christians, while other religious communities, such as Muslims, are legally allowed to practice polygamy," he argues.
"The modern legal imposition of monogamy is a colonial relic that contradicts traditional Christian teachings," he adds.
On Monday, Justice Murima of the High Court in Kitale instructed the Attorney-General, the primary respondent on the petition, to respond.
“Please take notice that the case HCCHRPET/E018/2024 of Boniface Ndura Koimburi vs. State Law Office is scheduled for mention on December 4, 2024, at 9am in the Kitale High Court,” Justice Murima said in his directive.
The law prohibits men in legally recognised monogamous marriages from marrying additional wives.
But Mr Ndura, in a petition filed through his advocate Dennis Wanyama, wants that changed.
Pastor John Wanjala of the Living Faith Ministries in Kitale opposed the petition, describing it as a "diabolical scheme" that exploits a loophole in the law to distort the Word of God. He emphasised that, according to the Holy Bible, marriage is defined as between one man and one woman.
“Regardless, the Church does not support polygamy. This is a divine principle that cannot be superseded. Anyone with intent to marry multiple wives should not tarnish the image of the Church in any way,” said Pastor Wanjala.
Kenyan-born, USA-based Anglican Pastor Peter Kuria said polygamy was acceptable and not prohibited by the Bible. He said he has a partner in Kenya whom he wishes to marry in the future, but the law prevents this, leaving him feeling discriminated against.
“Whereas Episcopal/Anglican church in the USA is supporting same-sex marriage which is condemned in the Bible, Africa needs to embrace its traditions, which align with Jewish traditions and not condemned by Jesus Christ,” said Pastor Kuria.
According to the petitioner, Section 171 of the Penal Code and Sections 6, 8, 9, and 11 of the Marriage Act not only violate Article 32 of the Kenyan Constitution, which protects freedom of religion and belief, but also infringe upon Article 45, which guarantees the right to marry and find a family based on personal convictions.
He argues that banning polygamy among Christians has contributed to rising rates of single parenthood and divorce in Kenya, and terms polygamy as a solution to these social challenges, claiming it offers a “more stable family structure” in certain communities.
His lawyer said the AG has failed to respond to the petition and this could see it go through when the matter is mentioned on December 4.
“We are yet to get a response from the Attorney-General and not even the Church has sought to be an interested party in this matter. We hope that the High Court will allow amendment of the law on the matter,” noted Mr Wanyama.
