THE PRESUMPTION OF MARRIAGE

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Now onto today’s topic;

The presumption of marriage has come a long way in Kenya’s legal system. Once seen as a flexible doctrine used to protect partners in long-term relationships where no formal ceremony was conducted, courts are now adopting a much stricter stance. The Supreme Court in Mary Nyambura Kangara v Paul Ogari Mayaka & Another, Petition No. 9 of 2021 clearly illustrated this shift by stressing that cohabitation alone no longer proves marriage, signaling a new, more discerning judicial approach. 

FACTS OF THE CASE

The Appellant (Mary Nyambura Kangara, MNK) and the Respondent (Paul Ogari Mayaka, POM), lived together for many years. The dispute concerns property rights and centered on the provisions of the repealed Married Women’s Property Act (MWPA) of 1882.

The key facts presented were:

1. The Relationship: POM claimed he and MNK started living together as husband and wife around 1986.
2. The Property: He claimed they bought the property (Plot No. 29 in Dagoretti/Riruta/168) using money saved together.
3. The Registration Mix-Up: POM asserted that because he was Kisii and the seller was Kikuyu, the seller wasn't comfortable selling to him. So, they agreed to register the property solely in MNK’s name, even though they both contributed.
4. Development and Breakup: They took possession between 1992 and 1993, built rooms, lived in one as their home, and rented out the rest. POM managed utility connections and operated a bar there. In 2011, MNK kicked POM out, leading to the lawsuit.
5. MNK's Defense: MNK totally rejected POM's claims. She argued they were just friends, and she allowed him to manage the property. Crucially, she claimed she was already married under customary law to another man (KM, who died in 2011) and had never divorced him. Therefore, she didn't have the legal capacity to marry POM, meaning their cohabitation was just an adulterous relationship and not a marriage.

 LEGAL ISSUES

The Supreme Court decided to focus on two major questions that went beyond just who got the house:

1. Does the old Married Women's Property Act (MWPA) apply to couples who were just living together (cohabiting) or whose marriage was informal and unrecognized by law? If so, on what legal grounds?
2. Since this specific relationship ended, what property remedy or relief is available to these two people?

PROCEDURAL HISTORY AT THE COURTS

1. THE HIGH COURT

The High Court dismissed the Originating Summons in its judgment delivered on June 9, 2017. The judge found that although there was long cohabitation, the principle of presumption of marriage was inapplicable because the Appellant was married to KM and thus lacked the capacity to marry the Respondent. The court held that the relationship was adulterous, the resulting cohabitation could not be deemed a marriage, and consequently, the Respondent could not rely on the MWPA, whose reliefs require proof of marriage. 

2. THE COURT OF APPEAL

The Respondent filed an appeal based on the grounds that the High Court erred in finding the Appellant was married to KM and erred in declining to deal with property acquired during the cohabitation. The Court of Appeal allowed the appeal, finding that the existence of KM was not proved. The appellate court presumed the existence of a marriage and ordered the suit property to be divided into two halves, with a 50% share for each party.

3. SUPREME COURT (CERTIFICATION/REVIEW)

MNK, unhappy with the 50/50 split, wanted to appeal to the highest court. The Court of Appeal initially refused her request to appeal, calling the matter a simple one of a private nature. However, the Supreme Court reviewed this refusal in July 2021 and granted permission, recognizing that the legal issues raised were significant and transcended the specific circumstances of the parties. 

SUPREME COURT'S HOLDING

The final orders of the Supreme Court were:

• The appeal dated 12th August 2021 partially succeeds.
• A presumption of marriage between the appellant and the respondent does not exist.
• Both parties have a beneficial interest in the property. The share is apportioned as 70% for the appellant and 30% for the respondent.
• Each party is to bear their own costs. 

SUPREME COURT'S JUDGEMENT

1. Applicability of MWPA and the Failure of Presumption of Marriage: 

• The Court noted that the MWPA (the old law) only mentions 'parties to a marriage; husband and wife'. Since it doesn't specify how the marriage must have been contracted, the Court held that parties in unions arising out of cohabitation or unrecognized marriages could file proceedings under the MWPA.
• The Court then looked at the facts again and agreed with the High Court: MNK had sufficiently proven that she was married to KM until 2011, partly based on her official identification document bearing his name. Because MNK was already married and polyandry is not practiced in Kenya, she lacked the capacity to marry POM during that time.
• No Marriage: Because MNK lacked capacity, the cohabitation was found to be adulterous and could not be legally deemed a marriage. Therefore, the Appellate Court was wrong to presume a marriage existed.

2.  On Relief Available (Proprietary Rights)

Despite finding that no marriage existed, the Court found it crucial to make a finding on the parties’ proprietary rights. The Court determined that the Appellant and the Respondent contributed to the acquisition and development of the suit property, giving rise to proprietary rights based on a constructive trust.
The constructive trust arose based on common intention, which was inferred from the parties' conduct:

• They cohabited since 1986.
• They jointly bought the property in 1991, which was registered in the Appellant's name.
• The Respondent was present and a witness during the drafting and signing of the sale agreement.
• They lived in one room from 1993 and used rent proceeds to construct more rental units.
• The Respondent had the utility meters in his name and operated a bar on the premises.
• The Appellant's subsequent eviction of the Respondent from the home and business premises in 2011 amounted to unjust enrichment.

Quantification: The Court noted that in assessing beneficial interests, it must consider both direct financial contribution and other forms of contribution, such as maintaining and improving the property. Since the parties jointly invested in the property for more than 20 years, the Court apportioned the share based on their respective contributions: 70% for the appellant and 30% for the respondent.

LEGAL PRINCIPLES ESTABLISHED

The Supreme Court established or reinforced several legal principles:

• Applicability of Repealed MWPA: The repealed MWPA applied to all marriages, regardless of whether they were formally recognized or unrecognized in law.
• Status of Presumption of Marriage: The doctrine of presumption of marriage is "on its deathbed" and should only be used sparingly where there is cogent evidence to buttress it.
• Requirement of Capacity: The presumption of marriage is rebuttable, especially where one party lacks the legal right or capacity to marry due to a subsisting marriage (polygamy/adultery).
• Parameters for Presumption: The Court outlined strict parameters for presuming marriage, including the requirement of long cohabitation, the legal right/capacity to marry, intention to marry, consent by both parties, and holding themselves out as married.
• Interdependent Relationships: Courts must recognize that many consenting adults cohabit without the intention of contracting a marriage, and courts should shy away from imposing marriage on unwilling persons.
• Property Rights for Cohabitees: Where a cohabitation union is not recognized as a marriage, proprietary disputes over property acquired through joint efforts can be resolved by applying the ordinary rules of law, specifically through the imposition or imputation of a constructive trust.
• Quantifying Constructive Trust: Quantification of beneficial interest in a constructive trust must consider the common intention of the parties (inferred from conduct) and both direct and indirect contributions made by the parties to the cost of acquisition, maintenance, and improvement.
• Legislative Recommendation: The Court suggested that the National Assembly and the Senate, in collaboration with the Attorney-General, should formulate and enact Statute law that deals with cohabitees in long-term relationships; their rights, and obligations.

In conclusion, the presumption of marriage in Kenya now demands more than shared life or social recognition; it calls for clear evidence of mutual intent and legal capacity. This evolving standard reminds couples of the importance of formalizing their unions to secure protection under the law.

Catch you in the next blog!

 

Disclaimer- The information provided is for general informational purposes only and should not be considered as professional advice. Please consult a qualified professional for specific guidance. 

REFERENCES 

Supreme Court of Kenya (2023) Petition No. 9 of 2021: Mary Nyambura Kangara v Paul Ogari Mayaka & Another [2023] KESC 2 (KLR).

 

 

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