The new legal standing on presumption of marriage in Kenya…

By

www.victorngaruiya.co.ke

©2023

Introduction

Recently, the Kenyan courtrooms have become a commonplace for protracted Legal debates over cohabitation throughout Kenya. The Marriage Act No.4 of 2014, apart from defining cohabitation, is silent on the legality of cohabitation as a form of marriage in Kenya. It is perhaps this statutory silence that has muddied the legal waters. What ensued before was a status of confusion and chaos in court decisions over the subject. For instance, In the case of CWN v DK [2021] eKLR, the High Court held that presumption of marriage in Kenya was abolished by the enactment of the Marriage Act. The ratio of the Court’s decision was that the marriages enumerated in section 6 are the only marriages recognized in law in this country. Secondly, according to the judge, a presumption, whether or law or fact, would be applied to effectively oust clear and express provisions of the law. The judge also made a finding that section 3 of the marriage act requires mandatory registration, meaning the only proof or evidence as to the existence of a marriage is a certificate of marriage or an entry of the marriage register.   

Statement of the Problem

The sentiment expressed in the preceding paragraph, embodies the view that the doctrine of presumption of marriage was on its deathbed which reasoning was reinforced by the changes to the matrimonial laws in Kenya. To be able to understand, Cohabitation is recognized in the common law. It is also known as presumption of marriage. In section 3(1) (c) of the Judicature Act[1] common law has been acknowledged as part of our law in Kenya and therefore cohabitation has also been included as another form of marriage despite its exclusion in section 3(6) of the Marriage Act, 2014[2].The doctrine of presumption can best be argued on the basis of section 119 of the Evidence Act[3]. That section states “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”.  However the position has slightly been clarified in that the presumption should only be used sparingly where there was cogent evidence to buttress it. This can be well illustrated by the argument that follows.

The first question is to define what presumption of marriage is from the general definition found in legal dictionaries. According to the Bromley Family Law[4], 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 and when it is challenged, the burden lies on those challenging it to prove that there was in fact no marriage, and not upon those who rely on it to prove that it was solemnized. Moreover, Presumptions are either of law or fact. Presumption of law poses arbitrary consequences expressly annexed by law to particular facts and may be either conclusive or rebuttable while on the other hand, Presumption of fact are inferences which the mind naturally draws from given facts irrespective of their cause and they are always reputable.[5]

The Kenyan jurisprudence has massively advanced in this area of law. For instance as was seen in the famous case of Hortensiah Wanjiku Yawe v Public Trustee[6].  The Plaintiff said they cohabited for 17 years and there was a child born in the union and so he argued that a presumption had arisen. Dr. Khaminwa, in the matter, (Currently a Senior Counsel) argued persuasively that presumption of marriage is a common law concept with ecclesiastical background and cannot be imported into Kikuyu marriage customs. But this was merely a presumption and  presumption can only be rebutted only by strong and weighty evidence to the contrary as Mustafa JA went on to hold that ;

“The position seems to me to be this. The appellant had testified that she was married to the deceased, and the deceased in an application in 1966 had stated that the appellant was his wife. By general repute and in fact the parties had cohabited as man and wife in a matrimonial home for over 9 years before the deceased died.. and during that time the appellant bore him four children.. Long cohabitation as man and wife gives rise to a presumption of marriage in favour of the appellant only cogent evidence to the contrary can rebut such a presumption.. Such a presumption carries considerable weight in the assessment of evidence. Once that factor is put into the balance into the appellant’s favour the scale must tilt in the direction.. Even if the proper ceremonial rituals were not carried out that would not invalidate the marriage.”

From the above holding, it is therefore quite axiomatic that the ratio of the Hortensia Yawe (supra) case and a catena of authorities following its ratio will later agree that cohabitation may lead to a presumed marriage if the following parameters are met:

1. Long Cohabitation and repute,
2. providing sustenance and shelter,
3. treating the person as a spouse and the other family members treated him/her as such,
4. Evidence of an intimate relationship, having children,
5.  The neighbour principle- where a neighbour looking at the relationship would describe it as a marriage. ,
6. How do the parties introduce themselves to people?
7. Description of a party as a spouse in the official documents, such as medical insurance, retirement benefits, and insurance covers.

Conversely, ‘Marriage is a voluntary union. Courts should therefore shy away from imposing marriage on unwilling persons’. This was a ruling from a recently decided case, MNK v POM (2023)[7] where the Supreme Court made a final determination on the application of the presumption of marriage doctrine and provided guidance on the status of property rights for jointly acquired property in unofficial unions. Analyzing the background facts of the case; After the end of a 25-year cohabitation with Ms. Kangara and subsequent eviction from the suit property/matrimonial home, an aggrieved Mr. Mayaka filed a suit in the High Court to enforce his alleged property rights by invoking Section 17 of the Married Women’s property Act (repealed). The Section provided that; 

‘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.’

Upon Hearing the Application, the High Court determined that Ms. Kangara was married to a third party at the time Mr. Mayaka alleged they were together and that she lacked capacity to marry. The resulting cohabitation could, therefore, not be deemed a marriage. It further determined that due to the absence of a legally recognized marriage Mr. Mayaka could not rely on the MWPA for his claim and it was subsequently dismissed. Dissatisfied, Mr. Mayaka moved to the Court of Appeal, which overturned the decision of the High Court and ruled that there existed a presumption of marriage between the two and awarded Mr. Mayaka 50% of the suit property[8]. Ms. Kangara, dissatisfied with the Court of Appeal’s decision, sought to Appeal to the Supreme Court and her appeal was partly successful. Keep this in mind: The instant case was not one of the safe instances where a court could rightly presume a marriage. The appellate court erred in presuming a marriage between the parties. 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. His cohabitation with the appellant was not sufficient to prove his marriage to the appellant. A presumption of marriage could not have therefore applied in the instant case as was held by the Supreme Court.

1. Whether the the Marriage Act, 2014, and Matrimonial Property Act, 2013 were applicable to matrimonial disputes before 2013. The court held that The Marriage Act, 2014 and Matrimonial Property Act No 49 of 2013 were not applicable in the instant matter as the cause of action arose before the said statutes were enacted into law and could not be applied retrospectively.
2.  Whether cohabitants could file proceedings under the Married Women’s Property Act (repealed). The court held that The MWPA (repealed) applied only to parties to a marriage; husband and wife. Parties to a union arising out of cohabitation and/or in a marriage unrecognized by law could file proceedings under the MWPA (repealed) upon the basis that the MWPA (repealed) did not distinguish between marriages recognized or unrecognized in law. The MWPA (repealed) applied to all marriages recognized or unrecognized in law.
3. What were the parameters in which courts could presume a marriage?

The strict parameters within which a presumption of marriage could be made were:

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 was on the party who alleged it.
7. The standard of proof was on a balance of probabilities.
8. The evidence to rebut the presumption had to be strong, distinct, satisfactory, and conclusive.

The following chronological outline reveals that the evidence was not strong nor conclusive since the Court of Appeal held 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 therefore also erred in presuming the existence of a marriage between the parties and in allowing the appeal. As a result the Court of Appeal had also ordered the suit property to be divided into two halves, a share for each party. The Supreme Courts’ Judgment overturned this decision and held that both parties had a beneficial interest in the property and that the share was 70% for the appellant and 30% for the respondent.

• What was the definition and application of the doctrine of constructive trust?

The common intention of the parties at the time of purchase was sufficient to give rise to a constructive trust, which could be inferred from conduct other than making financial contributions to cohabitees.

• Whether a constructive trust as envisioned under section 38 of the Land Act could be applied in solving disputes relating to cohabitees.

A constructive trust is the right, enforceable solely in equity, to the beneficial enjoyment of property to which another person holds the legal title. The legal owner is bound to hold the property in trust for them both. That trust does not need any writing. Moreover, 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. Read the case of Jutelabi Ltd vs Christopher Lockley (2017) Eklr where the court distinguished between the applications of constructive trust vis-à-vis a resulting trust.

In this case, even though the constructive trust in this case was premised on section 38 of the Land Act, 2012 the same had not been applied in solving disputes relating to cohabitees and in this case the Supreme court applied the same on grounds of the common intention from the parties at the of purchase.

• Whether a constructive trust could be inferred from the conduct of cohabitees who purchased property together in the subsistence of their relationship.

The answer is in the affirmative. The Supreme Court held that the two parties contributed to the acquisition and development of the suit property which led to their proprietary rights. Those proprietary rights arose out of a constructive trust. Constructive trust therefore in the courts’ view applied to husband and wife, to engaged couples, and to man and mistress, and to other relationships too. The court also found that the parties’ 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.

•   What principles were courts to consider in assessing the beneficial interests due to cohabiting parties who separated?

On this issue, the Supreme Court found frowned at the Appellant who was unjustly enriching herself to the detriment of the respondent. As in 2011 when the parties 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. 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 had made several improvements on the suit property. The common intention could be inferred from the appellant and respondent’s conduct during the existence of their relationship.

• Whether courts were to consider both direct financial contributions to the acquisition of the property and other forms contributions.

In assessing the beneficial interests due to the parties, the court could not only be primarily focused on the direct financial contribution to the acquisition of the property but also interrogate other forms of contribution such as actions of the parties in maintaining and improving such properties.

CONCLUSION

From the courts finding, it was held 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. The respondent proved his case on a balance of probabilities that the suit property was acquired and developed through joint efforts and/or contribution of the parties. The share of the parties was apportioned as 70% for the appellant and 30% for the respondent based on their respective contributions.

Indeed, a presumption of a marriage is the exception rather than the rule…

REFERENCES

A) Prior to the enactment of the Marriage Act, 2014, the legal regime on marriage within Kenya was provided within the following now repealed Acts;

 a. The Marriage Act Cap.150 Laws of Kenya

b. The African Christian Marriage and Divorce Act. Cap. 151 Laws of Kenya

c. The Matrimonial Cause Act Cap. 152 Laws of Kenya

 d. The Subordinate Court (Separation and Maintenance) Act Cap. 153 Laws of Kenya

e. The Mohammed Marriage and Divorce Registration Act Cap. 155 Laws of Kenya

f. The Mohammedan Marriage Divorce and Succession Act Cap 156 Laws of Kenya

g. The Hindu Marriage and Divorce Act Cap. 157 of the Laws of Kenya.

B) Kenyan case laws

 Peter Hinga v Mary Wanjiku Nairobi Civil Appeal No. 94 of 1977

Yawe Hortensia v Public Trustee Civil Appeal Number 13 of 1976

WM v Murigi [2008] 1 KLR (G&F) 348

BKG v NWT (Civil Appeal 147 of 2019) [2022] KEHC 16399 (KLR) (Family)

C) Online Artricles

A Commentary on The Presumption of Marriage in the context of The Case of BKG v NWT (Civil Appeal 147 of 2019) [2022] KEHC 16399 (KLR) (Family) (16 December 2022) (Judgment) by Wamae and Allen Law firm

file:///C:/Users/Admin/OneDrive/Desktop/Law%203.1/64th-Legal-Update-A-Commentary-on-the-Presumption-of-Marriage-in-the-context-of-the-Case-Of-BKG-V-NWT.pdf

Ng’ang’a Njiri, Kenneth, To Cohabit or Not?: The Place of Cohabitation in the Social and Legal System in Kenya (2020). Available at SSRN: 

https://ssrn.com/abstract=3605769 or http://dx.doi.org/10.2139/ssrn.3605769

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3605769#:~:text=%E2%80%9CA%20marriage%20may%20be%20presumed,together%20as%20husband%20and%20wife.%E2%80%9D

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[1] Cap 8, Laws of Kenya

[2] No.4 of 2014

[3] Cap 80, Laws of Kenya

[4] Bromley Family Law, 5th Edition 64

[5] Phipson on Evidence 5th Edition pp.44

[6] EACA C.A. NO. 13 OF 1976 (UR)

[7] Initiative for Strategic Litigation in Africa (ISLA) (Amicus Curiae) (Petition 9 of 2021) [2023] KESC 2 (KLR) (Family) (27 January 2023) (Judgment)

[8] https://mmsadvocates.co.ke/presumption-of-marriage-in-kenya/#:~:text=There%20must%20be%20consent%20by,%2C%20distinct%2C%20satisfactory%20and%20conclusive.