REPUBLIC OF KENYA

IN THE SUPREME COURT OF KENYA AT NAIROBI

(Coram: Mwilu; DCJ & VP, Wanjala, Njoki, Lenaola & Ouko, SCJJ)

PETITION NO. 9 OF 2021

―BETWEEN―
MARY NYAMBURA KANGARA alias
MARY NYAMBURA PAUL ……..………………………..………...
PETITIONER
-VERSUS-
PAUL OGARI MAYAKA ……………………………………………
RESPONDENT
AND
INITIATIVE FOR STRATEGIC
LITIGATION IN AFRICA (ISLA) ………………………...… AMICUS
CURIAE

(Being an appeal against the Judgement and Order made on 25th January 2019 by
the Court of Appeal in Civil Appeal No. 343 of 2019 at Nairobi (Waki, Kiage &
Sichale JJA)

Representation:
Mr. Andrew Kagicha h/b Mr.Mitheka for the Appellant
(Instructed by Mitheka & Kariuki Advocates)
Ms. Moses Siagi for the Respondent

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Petition No. 9 of 2021
(Instructed by Moses N. Siagi & Co. Advocates)

Ms. Nyokabi Njogu for Amicus Curiae

JUDGMENT OF THE COURT

A. INTRODUCTION

[1] This appeal raises a fundamental legal issue pertaining to property rights. It is
premised on the provisions of the repealed Married Women’s Property Act of
1882. The Act was repealed in January 2014 while this matter was filed in the
High Court in November 2013. The appellant challenges the decision of the Court
of Appeal (Waki, Kiage & Sichalle) which set aside the decision of the High Court
(Musyoka J) and determined that there was a presumption of marriage between
the appellant and the respondent and that the respondent was entitled to half of
the suit property being Plot No.29 within Dagoretti/Riruta/168 together with the
developments thereon.

B. BACKGROUND

i. Proceedings in the High Court

[2] The respondent instituted Nairobi High Court Civil Suit No. 6 of 2012,
POM vs. MNK, by way of an originating summons dated 5th November 2013
against the appellant whom he claimed to be his wife. The respondent invoked
the provisions of Section 17 of the Married Women’s Property Act (1882),
(MWPA) on the claim for division of matrimonial property.

[3] The respondent’s contention was that he and the appellant began to cohabit
as husband and wife sometime in 1986. It was his case that from joint savings,
they purchased the suit property. He asserted that he belonged to the Kisii tribe
and that the seller who belonged to the kikuyu tribe was not comfortable selling
the parcel of land to a non-Kikuyu therefore, the parties resolved to have the

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property registered in the appellant’s name although they had both contributed
to its acquisition.

[4] According to the respondent, the parties took possession of the parcel of land
between 1992 and 1993 which they developed, and constructed rooms thereon,
one of which they used as their matrimonial home, and let the other rooms out. It
was his case that he did the legwork relating to the connection of electricity,
sewerage, and water to the premises. In addition, he operated a bar from the
premises. He claimed that the appellant evicted him from their matrimonial
home in 2011 and at this time the amount of rent collected from the premises was
Kshs. 258,100 per month.

[5] The appellant rejected all the respondent’s claims. She denied his
involvement in the purchase of the suit property, his contentions on registration
of the property urging that she allowed him to manage the suit property because
they were friends. According to her, she was already married under customary
law to a one KM now deceased and although they were separated, she never
divorced him. Therefore, she did not have the capacity to contract another
marriage while her first marriage was still subsisting. She also claimed that after
KM died in 2011, the respondent intensified harassment to coerce her into
marriage. She subsequently filed CMCC No.4364 of 2011 to restrain the
respondent from trespassing into her properties.

[6] By a judgment delivered on 9th June 2017, Musyoka J dismissed the

Originating Summons with costs to the appellant. The learned judge found that
although there was long cohabitation between the parties, the principle of
presumption of marriage, was inapplicable under the circumstances seeing that
the appellant was already in a married to KM. The learned judge held that the
appellant did not have the capacity to marry the respondent, that the relationship
between the parties was adulterous and the resulting cohabitation could not be
deemed a marriage. In the absence of a marriage, the court held that the

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Petition No. 9 of 2021
respondent could not rely on the provisions of MWPA whose reliefs are based on
proof of marriage.

ii) Proceedings in the Court of Appeal

[7] Dissatisfied with the judgment of the High Court, the respondent filed Civil
Appeal No. 343 of 2017 based on two grounds. That the learned Judge erred:

i. In fact, in finding that the appellant, during the subsistence of the

relationship between the appellant and the respondent, was
married to one KM.

ii. In law, in declining to deal with the property acquired by the

respondent and the appellant during the relationship and/or
cohabitation of parties, the fact that the appellant was married to
somebody else notwithstanding.

[8] The Court of Appeal allowed the appeal holding that the High Court erred in
finding that there was long cohabitation but declined to presume marriage
because of a one KM, whose existence the Court of Appeal found was not proved.
The appellate Court presumed the existence of a marriage and allowed the appeal,
and ordered the suit property to be divided into two halves, a share for each party.

[9] Aggrieved by this decision, and desirous to appeal to the Supreme Court, the
appellant sought certification and leave before the Court of Appeal that her
matter was of general public importance. Her application for leave was denied by
a majority decision of the Court of Appeal. The majority held that the issues the
appellant intended to raise before the Supreme Court were not issues before the
trial court or on appeal. They held that the matter before the High Court had
been a simple one - whether the applicant and the respondent had cohabited and
whether, during that cohabitation, they had acquired the property in question. To
the learned Judges in the majority, these were straightforward matters of a
private nature and findings had been made on those issues. Thus, there were no

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Petition No. 9 of 2021
issues raised meeting the standard set by the Supreme Court in Hermanus
Phillipus Steyn v Giovanni Gnecchi-Ruscone [2013] eKLR on what
amounts to a matter of general public importance.

iii) Proceedings in the Supreme Court

[10] Dissatisfied with the Court of Appeal’s ruling on certification, the appellant
sought for review. On 16th July 2021, in Sup. Civil Application No. 5 of 2020, this
court in a ruling held that the issues raised by the appellant were not frivolous
and they transcended the specific circumstances of the parties. As such, the court
granted a review of that certification, granted leave to file an appeal and confined
the parties to the following issues for determination now before us:

i. Whether parties to a union arising out of cohabitation

and/or in a marriage unrecognized by law can file
proceedings under the Married Women’s Property Act?
And if so, upon what basis would this be done?

ii. What relief is available to the present parties?

[11] Consequently, the appellant filed an appeal before this Court. The appeal is
premised on Article 163(4) (b) of the Constitution, Section 3 of the Supreme
Court Act No. 7 of 2011, and this Court’s ruling of 16th July 2021 in Sup. Civil
Application No. 5 of 2020. The appellants seek, inter alia, the following orders
from the Court:

i. A declaration that the common law doctrine of presumption of

marriage has no application in Kenya in light of Article 45 of the
Constitution, Section 3 of the Judicature Act, and the
comprehensive provisions of the Marriage Act No. 4 of 2014.

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Petition No. 9 of 2021
 ii. A declaration that presumption of marriage is no longer a concept
which is beneficial to the institution of marriage, to the status of the
parties and to the issue of their union or in the alternative.
iii. A declaration that the doctrine of presumption of marriage ought to
be sparingly applied as per this Court’s guidelines and principles.
iv. An order setting aside the judgment of the Court of Appeal and
upholding the judgment of the trial court.
v. An order granting costs to the appellant.
vi. Any other relief that the court may deem just to make.

C. PARTIES’ SUBMISSIONS

a. The appellant

[12] The appellant relied on her written submissions. On the issue of whether
parties to a union arising out of cohabitation and/or in a marriage
unrecognized by law can file proceedings under the Married Women’s Property
Act, the appellant submitted that the existence of a marriage recognized in law
remains the central status that grants a party locus standi under Section 17 of
MWPA. Additionally, she argued that marriage by cohabitation is not recognized
under the current marriage legal regime in that it is neither one of the kinds of
marriages that can be registered under Section 6(1) of the Marriage Act, 2014
nor is there evidence of cohabitation- one of the means of proving the existence of
marriage under of the said Act.

[13] It was the appellant’s case that mere cohabitation without any evidence on
capacity, consent, and intention to marry is not enough to establish a marriage by
presumption, especially in a situation where one party is denying consent,
capacity, and intention to marry. Citing M v R M [1985] eKLR (Civil Appeal
No. 61 of 1984), the appellant argued that courts should not be used to force
parties into a marriage relationship through the doctrine of presumption of
marriage.

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Petition No. 9 of 2021
[14] The appellant also submitted that in as much as the suit commenced before
the enactment of the Marriage Act No. 4 of 2014 and Matrimonial Property Act
No. 49 of 2013 these laws cannot be ignored as they were enacted in furtherance
of Article 45 of the Constitution which was in place before the respondent’s suit
was filed.

[15] She urged that the doctrine of presumption of marriage ceased to apply in
Kenya after the enactment of the current marriage legal regime which is not
necessarily subject to the principles against retroactivity in that it was enacted in
furtherance of Article 45 of the Constitution.

[16] She further submitted that Section 17 of MWPA cannot be used to establish
a marriage by presumption, assuming that the doctrine is still alive in Kenya
today. That this was applicable where such relief was not pleaded and prayed for
before the trial court, the prayer initially sought being one for ascertainment of
property rights between unmarried persons. In addition, the appellant argued
that the respondent ought to have first established, in a separate suit, the
existence of marriage by presumption and obtained a valid court declaration
before purporting to file his proceedings under Section 17 of MWPA.

[17] In the alternative, the appellant submitted that the respondent ought to have
at least pleaded and prayed for the establishment and declaration of marriage by
presumption in his Originating Summons to enable the court to entertain
evidence touching on long cohabitation and presumption of marriage. The
appellant concluded by urging the Court to set aside the judgment of the Court of
Appeal.

b. The respondent’s case

[18] The respondent relied on his written submissions. On the question of

whether parties to a union arising out of cohabitation and/or in a marriage
unrecognized by law can file proceedings under the Married Women Property
Act, the respondent’s counsel urged that the correct interpretation of the term

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Petition No. 9 of 2021
“marriage” in the MWPA should be that it applies to all marriages recognized or
unrecognized in law. Counsel was of the view that a plain and reasonable
appreciation of the MWPA led to the inescapable position that any marriage
qualifies as such under that Act. As a result, the essence of the MWPA is to enable
people in a union, who have jointly invested in property, to access courts with
ease in a manner that meets the expectations of people in all spheres of life as
envisaged in the Constitution.

[19] It was further urged that the appellate judges, while aware that the matter
was commenced under the MWPA, had no problem deciding the matter of
sharing the properties amongst the parties. He submitted that the appellate
judges thus appreciated the existence of a presumption of marriage albeit
unrecognized in law. On the issue of the relief available, the respondent agreed
with the finding of the Court of Appeal on marriage and division of the suit
property. In conclusion, the respondent urged that the judgment of the Court of
Appeal be upheld and costs awarded to him.

c. Brief of Amicus Curiae

[20] The amicus curiae submitted that although cohabiting relationships are
mentioned in Section 2 of the Marriage Act, it is not provided for in the
substantive section of the legislation. The legal framework that is used to
determine the existence of a marriage is therefore to be found in Section 119 of
the Evidence Act as well as case laws developed by the Court of Appeal.

[21] ISLA asserted that long cohabitation and general repute will give rise to a
rebuttable presumption that marriage exists between a man and wife as was
recognized in Hortensia Wanjiku Yawe v. The Public Trustee Nairobi
[1976] eKLR and Mary Wanjiku Githatu v. Esther Wanjiru Kiarie [2010]
eKLR.

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Petition No. 9 of 2021
[22] It submitted that courts have also considered whether parties had the
capacity to marry in determining if there would be a presumption of marriage. It
cited S.M.M alias G.S.M alias S.S.M v. C. A. K. M [2017] eKLR and O.K. N
v. M.P.N [2017] eKLR to buttress this assertion.

[23] It was urged that there is currently no legal framework to recognize and
provide legal consequences to cohabitation relationships. Therefore, courts have
been applying the legal framework applicable to recognized marriages. It was
contended that though the division of property is determined based on the
contribution, decisions do not take into consideration contribution to ensure
equality. Consequently, parties who find themselves in cohabitation unions and
who contribute to the acquisition and development of property that is used for
the benefit of that union are often deprived of this property when the union ends.
It urged that if protections afforded to marriage are extended to these
relationships, the same should be extended even in the division of property.

[24] ISLA pointed out that the Convention on the Elimination of all Forms of
Discrimination against Women (CEDAW) Committee has developed its analysis
to extend rights that apply to women in marriage to women who are in
relationships that are not recognized in law. It also submitted that various
jurisdictions, such as the United Kingdom, Tanzania, Malawi, and Trinidad and
Tobago have developed legislation and policies to extend protection to
cohabitation unions. In the United States of America, the doctrine of common
law marriage protects women upon the dissolution or relationships of
dependence. If they qualify as wives under the system, it was contended, then the
court ought to grant them all the rights of a wife or widow. Further, those States
which provide for the protection of cohabitants provide for the protection of
parties’ property rights as well.

[25] It further submitted that in South Africa, courts have grappled with this
issue as there is no legislation that explicitly protects cohabitation. In various

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Petition No. 9 of 2021
cases, the courts in dealing with the issue of cohabitees or long-term
relationships have accorded the same benefits as spouses in terms of various
statutes. Also, courts have had to consider that the relationships in those cases
were worthy of similar protections as extended to marriages. It relied on Ryland
v Edros 1997 (s) SA 690 (CC) and Amod v Multilateral Motor Vehicle
Accidents Fund 1999 (4) SA 1319 (SCA at 1327 G – H) to support the argument.

[26] Based on the foregoing, ISLA submitted that the interpretation of Article 45
of the Constitution of Kenya, as well as the international and regional human
rights treaties to which Kenya is a party, means that provision for those parties in
cohabitation unions, or unrecognized marriages must be afforded similar
protections in the division of property acquired during those unions; and there is
therefore need for a legal standard that ensures the right of parties to all forms of
marriage, including cohabitation unions or other unrecognized marriages that
ensure the protection of the right to access property.

[27] It urged that the beginning of the development of this legal standard can
start with this Court deciding on the rights of those affected parties and how
property should be equitably divided. This can be done under the legal
framework for division of matrimonial property; and any remedies granted by
this Court on the foregoing would benefit from a structural order, requiring the
State to report on the progress made in the reform of the law on division of
property. This would ensure the effective implementation of any orders that the
Court will make.

D. ISSUES FOR DETERMINATION

[28] The issues framed for determination are as follows;

i. Whether parties to a union arising out of cohabitation

and/or in a marriage unrecognized by law can file

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Petition No. 9 of 2021
 proceedings under the Married Women’s Property Act?
And if so, upon what basis would this be done?

ii. What relief is available to the present parties?

E. ANALYSIS AND DETERMINATION

[29] Before delving into the issues as framed by this Court, we note from the
record that the cause of action in this matter arose in 2011 and the matter was
filed in 2012 before the enactment of the Marriage Act, 2014, and Matrimonial
Property Act, 2013. This court in the case of Samuel Kamau Macharia &
Ano. vs. Kenya Commercial Bank Ltd & 2 Others, SC Application No. 2 of
2011 [2012] eKLR we held as follows regarding retrospective application of
legislation:
“As for non-criminal legislation, the general rule is that all statutes
other than those which are merely declaratory or which relate
only to matters of procedure or evidence are prima facie
prospective, and retrospective effect is not to be given to them
unless by express words or necessary implication it appears that this was
the intention of the legislature.” [emphasis added]

[30] Flowing from the above, it is our considered view that the Marriage Act,
2014 and Matrimonial Property Act No. 49 of 2013 are not applicable in this
matter as the cause of action arose before the said statutes were enacted into law
and cannot be applied retrospectively. We now turn to the issues as framed.

(i) Whether parties to a union arising out of cohabitation

and/or in a marriage unrecognized by law can file
proceedings under the Married Women’s Property Act?

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Petition No. 9 of 2021
[31] While it is the appellant’s case that the existence of a marriage recognized in
law remains the central status that grants a party locus standi under Section 17 of
MWPA, the respondent contends that the correct interpretation of the term
marriage in the MWPA should be that it applies to all marriages recognized or
unrecognized in law.

[32] In that context, the MWPA was enacted in England in 1882. It found its way
into the Kenyan legal regime when it was inherited as a statute of general
application pursuant to the Judicature Act. This made the MWPA applicable in
Kenya but that was until 16th January 2014 when our own statute, the
Matrimonial Property Act, 2013 (MPA) commenced. However, as earlier stated
we will not delve into the MPA.

[33] The MWPA reads that it is “An Act to consolidate and amend the
Acts relating to the Property of Married Women.” Lord Morris of
Borthy-Guest in Pettit v. Pettit [1970] AC 777 stated:

‘One of the main purposes of the Act of 1882 was to make it fully possible
for the property rights of the parties to a marriage to be kept separate.’

[34] Section 17 of the MWPA states as follows;

‘In any question between husband and wife as to the title to or

possession of property, either party ……… may apply by
summons or otherwise in a summary way to any judge of the
High Court of justice ……and the judge ….. may make such
order with respect to the property in dispute, and to the costs of
and consequent on the application as he thinks fit.’

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Petition No. 9 of 2021
[35] Accordingly, and in answer to the question posed above, it is clear to us that
the MWPA applied only to ‘parties to a marriage; husband and wife.’ It is
worth noting from the onset that the MWPA only refers to ‘parties to a marriage’
and ‘married women’. It does not go into details as to how the marriage came to
be or how it was contracted. To our minds therefore, we are of the view that
parties to a union arising out of cohabitation and/or in a marriage unrecognized
by law could file proceedings under the MWPA upon the basis that the MWPA
does not distinguish between marriages recognized or unrecognized in law. In
other words, the MWPA applies to all marriages recognized or unrecognized in
law. The question that then arises in the matter before us, is whether or not, the
parties to this dispute were married.

[36] The Appellate Court in this matter had determined that ‘the appellant was,
by presumption married to the respondent.’ It is this determination that falls to
us for examination. Presumption of marriage is a well-settled common law
principle that long cohabitation of a man and woman with a general reputation as
husband and wife raises a presumption that the parties have contracted marriage.
However, a presumption of marriage is a rebuttable presumption and can
disappear in the face of proof that no marriage existed.

[37] According to Halsbury’s Laws of England, Matrimonial and Civil

Partnership Law (Volume 72) 5th Edition 2015:

“Where a man and a woman have cohabited for such a length of time, in
such circumstances, as to have acquired the reputation of being man and
wife, a lawful marriage between them will be presumed even if there is no
prior evidence of any marriage ceremony having taken place,
particularly where the relevant facts have occurred outside the
jurisdiction and this presumption can be rebutted only by strong and
weighty evidence to the contrary.”

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Petition No. 9 of 2021
[38] Similarly, Bromley Family Law 5th Edition provides that:

“If a man and woman cohabit and hold themselves out as husband and
wife, this in itself raises a presumption that they are legally married.”

[39] Section 119 of the Evidence Act, Cap 80 Laws of Kenya is also instructive. It
provides as follows:

“The court may presume the existence of any fact which

it thinks likely to have happened, regard being had to the
common course of natural events, human conduct and
public and private business, in their relation to the facts
of the particular case.”

[40] From the foregoing, courts are permitted to make a prima facie legal
inference that certain facts exist without proof, regard being taken to the
common course of natural events and human conduct, in relation to the facts of a
particular case.

[41] The presumption of marriage was first applied in Kenya in Hortensia

Wanjiku Yawe v. The Public Trustee Nairobi [1976] eKLR. The principles
distilled from this former Court of Appeal (Wambuzi P, Mustafa VP and Musoke
JA) for East Africa decision were outlined in Mary Njoki v John Kinyanjui
Mutheru & 3 Others, (Mary Njoki) [1985] eKLR by Kneller JA as follows:

i. The onus of proving customary law marriage is generally on the

party who claims it;
ii. The standard of proof is the usual one for a civil action,
namely, ‘on the balance of probabilities;

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Petition No. 9 of 2021
 iii. Evidence as to the formalities required for a customary law
marriage must be proved to that standard; (Mwagiru vs. Mumbi,
[1967] EA 639, 642)
iv. Long cohabitation as a man and a wife gives rise to a
presumption of marriage in favour of the party asserting
it;
v. Only cogent evidence to the contrary can rebut the
presumption (Toplin Watson vs. Tate, [1937] 3 All ER 105
vi. If specific ceremonies and rituals are not fully accomplished this
does not invalidate such a marriage. (Sastry Veliader Aronegary
vs. Sembecutty Vaigalie (1880-1) 6 AC 364; Shepherd George vs.
Thye, [1904] 1 Ch 456)

[42] The Judge went on to state:

“Cohabitation and repute do not always constitute a

marriage. They can be part of a mode of proving one in
that they are substituted for some missing element or
elements. One of the earliest put it this way. Cohabitation,
with habit and repute, in the absence of countervailing
proof to the contrary, establish a marriage on the ground
that the cohabitation as husband and wife is proof that
the parties have consented to contract that relationship.”
[Emphasis ours]

[43] Nyarangi JA in the same judgment delivered himself as follows;

“In my judgment, before a presumption of marriage can arise, a

party needs to establish long cohabitation and acts showing
general repute. If the woman bears a child or better still children, so

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Petition No. 9 of 2021
 that the man could not be heard to say that he is not the father of the
children, that would be a factor very much in favour of presumption of
marriage. Also, if say, the two acquired valuable property together and
consequently had jointly to repay a loan over a long period, that would be
just what a husband and wife do and so it would be unreasonable to
regard the particular man and woman differently. Performance of some
ceremony of marriage would be strong evidence of the general repute
that the parties are married. To sum it, there has to be evidence
that the long cohabitation is not close friendship between a
man and woman, that she is not a concubine but that the
cohabitation has crystallized into a marriage and that it is safe
to presume that there is a marriage. To my mind, these features are
all too apparent in the Yawe and in Mbiti (supra). To my mind,
presumption of marriage, being an assumption does not require proof, of
an attempt to go through a form of marriage known to law.”

[44] Our courts have subsequently applied the doctrine of presumption of

marriage in several cases. In Phylis Njoki Karanja & 2 others v Rosemary
Mueni Karanja & another [2009] eKLR the Court of Appeal stated as follows:

“Before a presumption of marriage can arise a party needs to establish

long cohabitation and acts of general repute; that long cohabitation is not
mere friendship or that the woman is not a mere concubine but that the
long cohabitation has crystallized into a marriage and it is safe to
presume the existence of a marriage. We are of the view that since the
presumption is in the nature of an assumption it is not imperative that
certain customary rites be performed.

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Petition No. 9 of 2021
[45] In Mary Wanjiku Githatu v Esther Wanjiru Kiarie [2010] eKLR
Bosire JA held as follows:

“The existence or otherwise of a marriage is a question of

fact. Likewise, whether a marriage can be presumed is a
question of fact. It is not dependent on any system of law except
where by reason of a written law it is excluded. For instance, a
marriage cannot be presumed in favour of any party in a relationship
in which one of them is married under statute. However, in
circumstances where parties do not lack capacity to marry, a
marriage may be presumed if the facts and circumstances show the
parties by along cohabitation or other circumstances evinced an
intention of living together as husband and wife.”

[46] More recently, Ngaah J, in CWN v DK [2021] eKLR was of the view that;

“as far as presumption of marriage is concerned, it is a status

of relationship that turns much on evidence as much as it is a
presumption of law.”

[47] Bearing in mind the above case law, did the instant relationship possess the
constitutive elements of presumption of marriage, that is, long cohabitation and
repute of marriage absent cogent evidence to the contrary? In other words, is it
safe in the circumstances of this case to presume a marriage?

[48] The appellant argued that parties to a marriage must have the capacity to
enter into a marriage and that she did not have the requisite capacity for the
relationship between her and the respondent to be presumed a marriage as she
was married to KM and had three children out of that relationship. The appellant
further contended that she was married to KM in the 1980s, therefore, she did

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Petition No. 9 of 2021
not have the capacity to enter into another marriage with the respondent, and
that lack of capacity, consent, and intention to marry rebuts any presumption of
marriage. This was interrogated by the High Court and the learned judge found
as follows at paragraphs 26 and 27:

“26. I note that the plaintiff sued the defendant as M N K. Indeed, in all the
other suits between the parties hereto, that is to say Milimani CMCCC No.
4364 of 2011 and Milimani CMCCC No. 454 of 2011, she is referred to as
such. It would appear to me that that is her official name; it is the one
appearing in her national identity card serial number[………..]. There is
also material, procured by the plaintiff, indicating that her father was
called M W. That then should raise the question as to where she could
have gotten the surname K from. I feel inclined to agree with the
defendant, and to conclude that she had contracted marriage with the
said K M which led to her adopting his name as part of her name.”

27. “…..It is a cardinal principle of the civil process that he who alleges
must prove. It is the plaintiff who came to court claiming that the
defendant was his wife; it was therefore incumbent upon him to prove
that assertion. When the defendant countered the claim by asserting that
she was a spouse of a K M, the plaintiff ought to have sought to disprove
that, especially given that the defendant had the K name as her surname,
yet that could not possibly have been her maiden surname. He failed to
adduce any evidence to disprove the defendant’s assertions that she had
no capacity to marry him at the time. I will therefore find that the
marriage between the defendant and K M was not terminated until 2011
when he was alleged to have died. That would then mean that the
defendant had no capacity at the time to marry the plaintiff. It is a
notorious fact that polyandry is not practiced in Kenya, whether under
statute or customary law. The relationship between the parties hereto

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 was no doubt adulterous, and the resulting cohabitation could not be
deemed to have brought forth a marriage.”

[49] The Court of Appeal on the other hand determined as follows;

“The learned Judge placed much weight on the appearance of the name
“K” on MNP’s identity card and drew the conclusion without evidence
being led, that the name appeared because she was married to him. In
fact, it would seem that beyond that fact, no other cogent evidence existed
as to the said marriage. We are not ourselves prepared to accept
as correct a proposition that the appearance of a name on the
identity card of a woman, without more, proves that the owner
of that name, whoever he be, is the woman’s husband. It is
also troubling that the issue of the appearance of that name in the
identity card did not feature in MNP’s testimony so that the determinative
conclusion the learned Judge reached was not preceded by any jural
testing and was founded on the learned Judge’s own untested theorizing
or extrapolation.

[50] Case law guides us on the issue of capacity. In Machani vs.

Vernoor [1985] KLR 859, the Court of Appeal held that:

“The presumption covers two aspects, that the parties must have capacity
to enter into a marriage and that they did so in effect. During the
continuance of a previous marriage, the already married party would
have no capacity to enter into the new marriage, and the new marriage
would be null until the previous marriage had been brought to an end by
a final decree or divorce.”

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[51] Indian case law is also persuasive on the issue of capacity. The Supreme
Court of India in Gokal Chand v. Parvin Kumari AIR 1952 SC 231 held
that continuous cohabitation of man and woman as husband and wife may raise
the presumption of marriage, but the presumption which may be drawn from
long cohabitation is a rebuttable one and if there are circumstances which
weaken and destroy that presumption, the Court cannot ignore them. Polygamy,
that is, a relationship or practice of having more than one wife or husband at the
same time, or a relationship by way of a bigamous marriage that is marrying
someone while already married to another and/or maintaining an adulterous
relationship that is having voluntary sexual intercourse between a married
person who is not one’s husband or wife, cannot be said to be a relationship in
the nature of marriage.

[52] In Indra Sarma vs V.K.V.Sarma, (2013) 15 SCC 755 the Supreme

Court of India held that:

“There is no necessity to rebut the presumption since the

appellant was aware that the respondent was a married person
even before the commencement of their relationship, hence the
status of the appellant is that of a concubine or a mistress, who cannot
enter into relationship in the nature of a marriage. Long standing
relationship as a concubine, though not a relationship in the nature of a
marriage, of course, may at times, deserves protection because that
woman might not be financially independent, but we are afraid that DV
Act does not take care of such relationships which may perhaps call for an
amendment of the definition of Section 2(f) of the DV Act, which is
restrictive and exhaustive.”

[53] On analysis and guided by the record, we are unconvinced that the appellant
had capacity to contract a marriage with the respondent. Before the High Court,

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Petition No. 9 of 2021
the appellant urged that her father gave her the name ‘P’ upon her baptism in
1979. She produced her baptism card before the court and also averred that she
added the name ‘P’ on the suit property because she was having a dispute with
her now deceased husband. She urged that although she had other properties, the
suit property was the only one with the name “P.’

[54] It is also not disputed that her father was MW and his name did not appear
in her identity document. We find that the Court of Appeal disregarded the
appellant’s evidence regarding her name and the reasons for use of the name ‘P’
and ‘K.’ Without the benefit of having sight of the baptism card produced during
the hearing, we have perused the record and find that the respondent did not
controvert the production of the baptism card.

[55] Furthermore, the appellant claimed she was married to ‘KM’. Her evidence
was her identity card, her official national identification document which bears
this name. We find that by parity of reason, the learned High Court judge was
well within his bounds to determine that K was her husband’s name bearing in
mind that Kenyan adult women have their father’s or husband’s names as their
surnames in their official identification cards. We also find that the appellate
court, inclined to disbelieve the appellant, did not thoroughly interrogate this
issue. In our considered view, the appellant has sufficiently proved that her name
is MNK and the name K is attributable to the deceased man ‘KM’.

[56] The appellant also argued that a long-term relationship that resembles a
marriage is not a marriage, and the person who alleges the existence of such a
marriage must prove it.

[57] On the issue of long cohabitation, the High Court held at paragraph 21 &
22as follows:

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Petition No. 9 of 2021
 “So what do I make of the material that was placed before me with regard
to the alleged relationship between the plaintiff and the defendant? From
the documents annexed to the affidavits to the parties and the oral
testimonies of the witnesses called by both sides, I am satisfied that the
plaintiff and the defendant were indeed living together on a plot within
Dagoretti/Riruta/xxx. It would appear that some people might have at
that time considered them to be husband and wife, going by the oral
testimonies and the documents, particularly the minutes of the meetings
held with respect to the issues concerning the subdivision and excision of
the plots from Dagoretti/Riruta/xxx.

22. What should be of concern is whether that cohabitation could lead to a

presumption that the two parties had between them a marriage… From
the material placed before me, I would be persuaded that there was a
long cohabitation of the parties, from 1986 according to the plaintiff and
1992 or thereabout from the other witness, terminating in 2011 or 2012
when the plaintiff was allegedly locked out of the premises by the
defendant. There is also material to suggest that there was a general
repute within that period that the two were a married couple.”

[58] From the evidence on record, we agree with both the High Court and the
Court of Appeal that there was long cohabitation between the appellant and the
respondent. However, did the long cohabitation and repute as husband and wife
raise a presumption of marriage?

[59] The first issue to note here is that from the record, it is evident that when
the respondent filed the suit in the High Court, he was not claiming to be the
husband of the appellant. The issue of the presumption of marriage through long
cohabitation was not specifically pleaded. Indeed, it was only during the
proceedings that the respondent asserted that they were married by repute. This

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Petition No. 9 of 2021
assertion was vehemently denied by the appellant and she claimed that she was
married to another man and known by his name. We have already made a finding
on this issue and will say no more on it.

[60] In addition, is trite law that he who alleges the existence of certain facts
must prove its existence. Accordingly, Section 109 of the Evidence Act provides:

“The burden of proof as to any particular fact lies on the person who wishes
the court to believe in its existence unless it is provided by any law that the
proof of that fact shall lie on any particular person.”

[61] The respondent, having claimed that he was married to the appellant, ought
to have adduced cogent evidence to prove the marriage. However, in his own
testimony in the record, he had a first wife and the appellant was allegedly his
second wife. He also confirmed that he had not paid dowry for the appellant. We
are therefore not convinced that his cohabitation with the appellant was sufficient
to prove his marriage to the appellant.

[62] We are thus in sync with the High Court that the respondent did not
controvert the evidence by the appellant that she was married to KM until 2011
when he died. In this regard, she only had the capacity to marry from 2011. This
evidence was in the form of her identity card. This was not disproved by the
respondent. As such, we are of the view that the appellant’s evidence that she was
married to KM under Kikuyu customary marriage was uncontroverted.

[63] Uncontroverted evidence is weighty and courts will rely on it to prove facts
in dispute. Considering the facts as pleaded and the evidence as tendered in this
matter, in particular the existence of the first marriage and failure by the
respondent to prove the presumption of marriage and/or controvert the
appellant’s evidence, we must return a finding that this is not one of the safe

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Petition No. 9 of 2021
instances where a Court can rightly presume a marriage. We must respectfully
find, which we do, that the Appellate Court erred in presuming a marriage
between the parties. We agree with the High Court that the relationship between
the parties and the resulting cohabitation cannot be deemed to have brought
forth a marriage. Consequently, a presumption of marriage cannot apply in the
instant case.

[64] We find it prudent at this juncture to lay out the strict parameters within
which a presumption of marriage can be made:
1. The parties must have lived together for a long period of
time.
2. The parties must have the legal right or capacity to marry.
3. The parties must have intended to marry.
4. There must be consent by both parties.
5. The parties must have held themselves out to the outside
world as being a married couple.
6. The onus of proving the presumption is on the party who
alleges it.
7. The evidence to rebut the presumption has to be strong,
distinct, satisfactory and conclusive.
8. The standard of proof is on a balance of probabilities.

[65] The above notwithstanding, we are of the view, that the doctrine of
presumption of marriage is on its deathbed of which reasoning is reinforced by
the changes to the matrimonial laws in Kenya. As such, this presumption should
only be used sparingly where there is cogent evidence to buttress it.

[66] In the same breath, we would be remiss if we did not point out that
marriage is an institution that has traditional, religious, economic, social and
cultural meaning for many Kenyans. However, it is becoming increasingly

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Petition No. 9 of 2021
common for two consenting adults to live together for long durations where these
two adults have neither the desire, wish nor intention to be within the confines of
matrimony. This Court recognizes that there exists relationships where couples
cohabit with no intention whatsoever of contracting a marriage. In such contexts,
such couples may choose to have an interdependent relationship outside
marriage. While some may find this amoral or incredible, it is a reality of the
times we live in today.

[67] For instance, a person may have been in a marriage before and the marriage
is no more due to death of a spouse or divorce. Due to their prior experiences,
such persons may choose to have an interdependent relationship outside of
marriage. For others, it may just be their desire never to marry but have a partner
without the confines of marriage. Where such situation is evident and there is no
intention whatsoever of contracting a marriage, the presumption of marriage
must never be made where this intention does not exist. It must always be
remembered that marriage is a voluntary union. As such, courts should shy away
from imposing ‘marriage’ on unwilling persons.

[68] In addition, in our ever-changing society, current statistics reveal that a

man and a woman can choose to cohabit with the express intention that their
cohabitation does not constitute a marriage. The pervasiveness of having
interdependent relationships outside marriage over the past few decades means
that no inferences about marital status can be drawn from living under the same
roof. ‘Interdependent relationships outside marriage’ is not a new concept.

[69] In Alberta, Canada, since 2003, Adult Interdependent Relationships have

been recognized and protected through the Adult Interdependent Relationships
Act. This creates a specific type of relationship, called an Adult Interdependent
Relationship (“AIR”). This term is used in place of the ‘common law relationship’.
The Act gives rights and obligations to couples in qualifying long-term

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Petition No. 9 of 2021
relationships. In this regard, perhaps, it is time for the National Assembly and
the Senate, in collaboration with the Attorney-General to formulate and enact
Statute law that deals with cohabitees in long-term relationships; their rights,
and obligations.

[70] To conclude on this issue, we find that the circumstances in which

presumption of marriage can be upheld are limited. In other words, a
presumption of a marriage is the exception rather than the rule.

ii) What relief is available to the present parties?

[71] Since the presumption of marriage does not exist in this case, is the
respondent entitled to a share of the suit property?

[72] Although the respondent urges that at all material times, the two parties
contributed to its acquisition and development of the suit property, on analysis of
the evidence before the High Court, the appellant’s and respondent’s financial
contribution in purchasing and developing the property was not ascertained.

[73] The Court of Appeal in evaluating the proprietary rights relating to the
ownership of the suit property together with the developments thereon held that
the respondent had jointly contributed to the acquisition, building and
development thereon and awarded each of the parties a 50% share.

[74] We now turn to the history of how the suit property was purchased. From
the record, the respondent alleged that the suit property was the subject of a
succession matter which upon conclusion was available for transfer but not to
someone who was not ‘Kikuyu’. The respondent averred that the purchase price
was Kshs. 250,000.00 and they jointly contributed Kshs. 200,000.00 and
obtained financing of Kshs. 100,000.00 from the appellant’s sister one Eunice

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Petition No. 9 of 2021
Njeri. Upon cross-examination, the respondent averred that he contributed Kshs.
60,000.00. That after the sale, the property was registered under the name MKP.
The respondent urged that the utility bills were registered in his name. It is not in
dispute that rental rooms were developed on the property and that the
respondent operated a bar and butchery business on the premises. The
respondent urged that the tenancy agreements were registered in his name as the
landlord and that he collected rent which was utilized for his upkeep together
with the appellant.

[75] The appellant urged before the High Court that she solely contributed to the
acquisition of the suit property. She confirmed that although she had other
properties it is only the suit property where she added the name P to her name
for registration purposes. The appellant urged that she had allocated the
respondent a shop to operate his business and had also appointed him as an
agent for purposes of rent collection.

[76] The Learned Judge of the High Court downed his tools on determination of
proprietary rights after making a finding that no marriage could be presumed.
The Court of Appeal on the other hand made a finding that the High Court erred
in failing to make a finding regarding the proprietary rights of the parties and
proceeded to make a determination on the legal issue which was the gravamen of
the suit filed. We agree with the learned judges that it was crucial to make a
finding on the parties’ proprietary rights, whatever the nature of the relationship.

[77] Wheareas The Appellate Court in evaluating the evidence made a finding
that the purchase and development of the property was a joint effort and
proceeded to apportion a 50% share to each party. The Court further held that
the true purchaser was the respondent but due to prevailing circumstances
regarding tribe, the property was registered in the appellant’s name. We disagree
as we find there is insufficient evidence on record to make this finding.

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Petition No. 9 of 2021
[78] On our part, on evaluating the evidence, we are convinced that the two
parties contributed to the acquisition and development of the suit property which
led to their proprietary rights. These proprietary rights arose out of a constructive
trust. The Black’s Law Dictionary 9th Edition at pg 1649 defines a constructive
trust as “the right, enforceable solely in equity, to the beneficial enjoyment of
property which another person holds the legal title.”

[79] England and Wales Court of Appeal’s Lord Justice Browne in Eves v
Eves [1975] 1 WLR 1338 quoted with approval the decision in Cooke vs.
Heard [1972] WLR 518 where it was held;

"... whenever two parties by their joint efforts acquire property

to be used for their joint benefit, the courts may impose or
impute a constructive or resulting trust. The legal owner is
bound to hold the property in trust for them both. This trust does
not need any writing. It can be enforced by an order for sale, but in a
proper case the sale can be postponed indefinitely. It applies to
husband and wife, to engaged couples, and to man and
mistress, and maybe to other relationships too.”

[80] Likewise, we are persuaded by the decision of the Supreme Court of

Queensland in Barker vs. Linklater & Another [2007] QCA 363 quoted with
Baumgartner vs Baumgartner [1987] 164 CLR 137 where the court held:

‘ Their contributions, financial and otherwise, to the acquisition of the

land, the building of the house, the purchase of furniture and the making
of their home, were on the basis of, and for the purposes of, that joint
relationship. In this situation the appellant’s assertion, after the
relationship had failed, that the Leumeah property, which was financed

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Petition No. 9 of 2021
 in part through the pooled funds, is his sole property, is his property
beneficially to the exclusion of any interest at all on the part of the
respondent, amounts to unconscionable conduct which attracts the
intervention of equity and the imposition of a constructive trust at the suit
of the respondent.’

[81] According to Bromley’s Family Law 10th Edition, disputes between

cohabitants or former cohabitants over ownership, occupation, or use of the
property must be resolved, generally speaking by applying ordinary legal rules
applicable to strangers. This is due to the fact that legislation that enables courts
to allocate or reallocate beneficial interests in the assets following a divorce does
not apply to cohabiting couples.

[82] Kenya, just like many other countries, does not have laws to protect parties
to cohabitation in case of a dispute relating to property acquired during the
subsistence of such cohabitation. However, the issue of cohabiting couples’
property has increasingly become a social problem due to the high number of
people resorting to cohabitation and in the process of acquiring properties, upon
separation there is no legislation governing the division of property.

[83] While we acknowledge the difficulties of resolving such disputes, a laissez

fair approach can result in injustice for parties to a relationship who might be
more vulnerable or who contribute less in financial terms than their partners.
Conversely, we do note that the interventionist approach risks creating
uncertainty, and attaching a monetary value to the party’s actions within this type
of relationship is often highly complex as is in the present case.

[84] The difficulty was aptly captured in Walker v Hall [1984] FLR 126
where Lord Lawton observed as follows:

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Petition No. 9 of 2021
 “During the past two decades the courts have had to consider on a
number of occasions the division of property between men and women
living together without being married……. courts have been able to make
an equitable division of property between spouses when a marriage
breaks down and a decree of divorce is pronounced. No such
jurisdiction exists when the cohabitees are unmarried. When
such a relationship comes to an end, just as with many divorced couples,
there are likely to be disputes about the distribution of shared property.
How are such disputes to be decided? They cannot be decided in the same
way as similar disputes are decided when there has been a divorce. The
courts have no jurisdiction to do so. They have to be decided in
accordance with the law relating to property… There is no special law
relating to property shared by cohabitees any more than there is any
special law relating to property used in common by partners or members
of a club. The principles of law to be applied are clear, though sometimes
their application to particular facts are difficult. In circumstances such as
arose in this case the appropriate law is that of resulting trusts. If there
is a resulting trust (and there was one in this case) the
beneficiaries acquire by operation of law interests in the trust
property. An interest in property which is the consequence of a legal
process must be identifiable. It must be more than expectations which at
some later date require to be valued by a court…”

[85] In England, courts have long recognized that common intention of the
parties at the time of purchase is sufficient to give rise to a constructive trust,
which can be inferred from conduct other than making financial contributions to
cohabitees.

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Petition No. 9 of 2021
[86] In defining constructive trusts, the Court of Appeal in the case of Juletabi
African Adventure Limited & another v Christopher Michael Lockley
[2017] eKLR the Court held that;

‘In the absence of an express trust, we have trusts created by operation of

the law. These fall within two categories; constructive and resulting
trusts. Given that the two are closely interlinked, it is perhaps pertinent to
look at each of them in relation to the matter at hand. A constructive
trust is an equitable remedy imposed by the court against one
who has acquired property by wrong doing. … It arises where the
intention of the parties cannot be ascertained. If the circumstances of the
case are such as would demand that equity treats the legal owner as a
trustee, the law will impose a trust. A constructive trust will thus
automatically arise where a person who is already a trustee
takes advantage of his position for his own benefit (see
Halsbury’s Laws of England supra at para 1453). As earlier stated, with
constructive trusts, proof of parties’ intention is immaterial; for the trust
will nonetheless be imposed by the law for the benefit of the
settlor. Imposition of a constructive trust is thus meant to guard
against unjust enrichment. … [emphasis added]

[87] We however note that even though constructive trust is premised on Section
38 of the Land Act, 2012 the same has not been applied in solving disputes
relating to cohabitees.

[88] In the case of Elayne Marian Teresa Oxley vs. Allan George
Hiscock [2004] EWCA 546 the Court of Appeal of England and Wales
quoted with approval Lord Diplock in Gissing v Gissing [1971] AC 886 where
the guidelines to consider when interrogating constructive trust were laid down
as follows:

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Petition No. 9 of 2021
 “. . . the first deals with the nature of the substantive right; the
second with the proof of the existence of that right; the third with
the quantification of that right.

1. The nature of the substantive right

If the legal estate in the joint home is vested in only one of the
parties ('the legal owner') the other party ('the claimant'), in order
to establish a beneficial interest, has to establish a constructive
trust by showing that it would be inequitable for the legal owner to
claim sole beneficial ownership. This requires two matters to be
demonstrated: (a) that there was a common intention that both
should have a beneficial interest; and (b) that the claimant has
acted to his or her detriment on the basis of that common intention.

2. The proof of the common intention

(a) Direct evidence, it is clear that mere agreement between the

parties that both are to have beneficial interests is sufficient to
prove the necessary common intention. Other passages in the
speech point to the admissibility and relevance of other possible
forms of direct evidence of such intention.

(b) Inferred common intention, Lord Diplock points out that, even
where parties have not used express words to communicate their
intention (and therefore there is no direct evidence), the court can
infer from their actions an intention that they shall both have an
interest in the house. This part of his speech concentrates on the
types of evidence from which the courts are most often asked to

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Petition No. 9 of 2021
 infer such intention, viz. contributions (direct and indirect) to the
deposit, the mortgage instalments or general housekeeping
expenses. In this section of the speech, he analyses what types of
expenditure are capable of constituting evidence of such common
intention: he does not say that if the intention is proved in some
other way such contributions are essential to establish the trust.

3. The quantification of the right

Once it has been established that the parties had a common

intention that both should have a beneficial interest and that the
claimant has acted to his detriment, the question may still remain
'what is the extent of the claimant's beneficial interest?' This last
section of Lord Diplock's speech shows that here again the direct and
indirect contributions made by the parties to the cost of acquisition may
be crucially important.” [emphasis added]

[89] The Court further observed as follows:

“I have referred, in the immediately preceding paragraphs, to

"cases of this nature". By that, I mean cases in which the common
features are: (i) the property is bought as a home for a
couple who, although not married, intend to live together
as man and wife; (ii) each of them makes some financial
contribution to the purchase; (iii) the property is
purchased in the sole name of one of them; and (iv) there
is no express declaration of trust.” [emphasis added]

[90] Applying the above guidelines we reiterate that common intention of the
parties at the time of purchase of the suit property gave rise to a constructive

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Petition No. 9 of 2021
trust between the appellant and the respondent. From the evidence on record
that the appellant and respondent had been cohabiting since 1986 and that in
1991 the suit property was bought by the two parties and registered in the name
of the appellant. The respondent was present during the drafting and signing of
the sale agreement and was in fact a witness. The parties lived in one of the
rooms from 1993 and ploughed the proceeds of rent to construct more rental
units. It was proved that the meters were in his name and operated a bar on the
same premises. In these circumstances, we conclude that there was a common
intention for the appellant and respondent to have beneficial interests in the suit
property.

[91] However, in 2011 when the parties herein separated the appellant evicted
the respondent from the matrimonial home and from the business premises
contrary to the common intention, they had at the time of purchasing the
property. Thereby, unjustly enriching herself with a property meant to be of
benefit to her and the respondent.

[92] It is in evidence that the respondent paid for the water and electricity
connection charges and bills from when the property was constructed to 2011
when he was evicted from the property and that jointly the parties have made
several improvements on the suit property. It is, therefore, our finding that the
common intention can be inferred from the appellant and respondent’s conduct
during the existence of their relationship.

[93] Having established that there was a common intention and that both the
appellant and the respondent should have a beneficial interest in the property, it
follows that we need to proceed and quantify the beneficial interest to the parties.

[94] In assessing the beneficial interests due to the parties, we cannot only be
primarily focused on the direct financial contribution to the acquisition of the

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Petition No. 9 of 2021
property but also interrogate other forms of contribution such as actions of the
parties in maintaining and improving such properties.

[95] The record shows that the appellant and the respondent jointly contributed
to the acquisition and the construction of the suit property and the two jointly
invested in the property for more than 20 years. Therefore, we are of the view
that the respondent did prove his case on a balance of probabilities that the suit
property was acquired and developed through joint efforts and/or contribution of
the parties. We therefore make a finding that the share of the parties is
apportioned as 70% for the appellant and 30% for the respondent based on their
respective contributions.

[96] This being a matter of public interest, each party shall bear their own costs.

E. ORDERS

[97] Having considered the issues delineated by this Court for determination, the
final Orders are as follows:

a. The appeal dated 12th August 2021 partially succeeds.

b. A presumption of marriage between the appellant and the

respondent does not exist.

c. Both parties having a beneficial interest in the property, the share

is 70% for the appellant and 30% for the respondent.

d. Each party to bear their own costs.

[98] It is so ordered.

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Petition No. 9 of 2021
DATED and DELIVERED at NAIROBI this 27th day of January
2023.

…………………………………………………
P.M MWILU
DEPUTY CHIEF JUSTICE & VICE PRESIDENT
OF THE SUPREME COURT

……………………………………. …………………………………………..
S.C WANJALA NJOKI NDUNGU
JUSTICE OF THE SUPREME COURT JUSTICE OF THE SUPREME COURT

……….……………..……………… ……………………………………………
I. LENAOLA W. OUKO
JUSTICE OF THE SUPREME COURT JUSTICE OF THE SUPREME COURT

I certify that this is a true copy of the original

REGISTRAR

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Petition No. 9 of 2021
SUPREME COURT OF KENYA

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Petition No. 9 of 2021