Court of Appeal Judge Katwa Kigen has stirred legal debate by stating that the Kenyan Constitution inherently acknowledges the existence of same-sex families, despite explicitly limiting marriage to persons of the opposite sex.
Appearing before the Judicial Service Commission (JSC) on Wednesday for the Supreme Court judge recruitment interviews, Justice Kigen drew a sharp legal distinction between the institution of "marriage" and the broader concept of "family" under the 2010 Constitution.
Marriage vs. Family: The Legal Distinction
While testifying before the panel, Justice Kigen addressed the restrictive nature of Article 45(2), which stipulates that every adult has the right to marry a person of the opposite sex. He clarified that if a same-sex couple approached him to officiate a marriage, he would be bound by this clause to say no.
However, he argued that the Constitution does not exclude the possibility of a "family" unit composed of individuals of the same sex.
"There is a difference between a marriage and a family. The Constitution inherently acknowledges that you can have a same-sex family," Kigen told the commissioners.
Appearing before the Judicial Service Commission (JSC) on Wednesday for the Supreme Court judge recruitment interviews, Justice Kigen drew a sharp legal distinction between the institution of "marriage" and the broader concept of "family" under the 2010 Constitution.
Marriage vs. Family: The Legal Distinction
While testifying before the panel, Justice Kigen addressed the restrictive nature of Article 45(2), which stipulates that every adult has the right to marry a person of the opposite sex. He clarified that if a same-sex couple approached him to officiate a marriage, he would be bound by this clause to say no.
However, he argued that the Constitution does not exclude the possibility of a "family" unit composed of individuals of the same sex.
"There is a difference between a marriage and a family. The Constitution inherently acknowledges that you can have a same-sex family," Kigen told the commissioners.
Intersex and Transgender Rights
The judge further questioned the legal vacuum regarding intersex and transgender individuals. He pointed out that since the state has acknowledged their existence through various legal milestones, the law must account for their right to form unions.
The judge further questioned the legal vacuum regarding intersex and transgender individuals. He pointed out that since the state has acknowledged their existence through various legal milestones, the law must account for their right to form unions.
The Intersex Dilemma: Kigen questioned whether two intersex persons should be denied the right to marry simply because the law specifies "opposite sex."
Inclusivity: He suggested that the legal framework must evolve to address the rights of those whose identities do not fit the traditional binary definitions currently mirrored in Article 45.
Inclusivity: He suggested that the legal framework must evolve to address the rights of those whose identities do not fit the traditional binary definitions currently mirrored in Article 45.
Limits on Polyandry and Same-Sex Unions
When pressed on the limits of marriage, Justice Kigen maintained a strict interpretation of the written law regarding the ceremony itself. He noted that as long as Article 45(2) remains in its current form, same-sex marriage cannot be legally recognized. He also indicated that constitutional limitations would similarly apply to other non-traditional unions if they contradict the specific "two-person, opposite-sex" framework defined for marriage.
The Race for the Supreme Court
Justice Kigen is one of five candidates shortlisted to fill the vacancy at the Supreme Court following the death of Justice Mohamed Ibrahim in December 2025. His remarks come at a time of heightened judicial scrutiny regarding LGBTQ+ rights in Kenya, following the 2023 Supreme Court ruling that allowed the registration of an LGBTQ+ non-governmental organization.
When pressed on the limits of marriage, Justice Kigen maintained a strict interpretation of the written law regarding the ceremony itself. He noted that as long as Article 45(2) remains in its current form, same-sex marriage cannot be legally recognized. He also indicated that constitutional limitations would similarly apply to other non-traditional unions if they contradict the specific "two-person, opposite-sex" framework defined for marriage.
The Race for the Supreme Court
Justice Kigen is one of five candidates shortlisted to fill the vacancy at the Supreme Court following the death of Justice Mohamed Ibrahim in December 2025. His remarks come at a time of heightened judicial scrutiny regarding LGBTQ+ rights in Kenya, following the 2023 Supreme Court ruling that allowed the registration of an LGBTQ+ non-governmental organization.
