Wealth and Private

Clients Business Unit

'PRESUMPTION OF
A MARRIAGE IS THE
EXCEPTION RATHER
THAN THE RULE.'
The Question of Presumption of
Marriage in Kenya

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 INTRODUCTION:

On 27th January 2023, the Supreme Court of

Kenya delivered a judgement on the contentious
matter of presumption of marriage in Petition
No 9 Of 2021 between Mary Nyambura
Kangara (Petitioner) Vs Paul Ogari
Mayaka (Respondent) and Initiative for
Strategic Litigation in Africa (Isla)
(Amicus Curiae).

This decision addresses a fundamental issue

pertaining to property rights.

BACKGROUND • the suit property was registered in Ms.

Kangara's sole name because the seller of the
Paul Ogari Mayaka ("Mr. Mayaka") property was not comfortable selling the suit
instituted a suit on 5th November 2013 at the property to a non–Kikuyu, and Mr. Mayaka
High Court against Mary Nyambura Kangara belonged to the Kisii tribe;
("Ms. Kangara"), claiming the division of
matrimonial property. He invoked the • after taking possession of the suit property
provisions of Section 17 of the Married between 1992 and 1993, he and Ms. Kangara
Women's Property Act 1882 (now repealed) developed and constructed rooms, one of
(the "MWPA"), which states as follows: which they used as their matrimonial home.
They sub-let the other rooms, and Mr. Mayaka
“In any question between husband operated a bar on the suit property; and
and wife as to the title to or possession
of property, either party ……… may • Ms. Kangara evicted him from their
apply by summons or otherwise in a matrimonial home in 2011, when the rent
summary way to any judge of the High collected from the suit property amounted to
Court of justice ……and the judge ….. Kenya Shillings Two Hundred and Fifty-Eight
may make such order with respect to thousand and One Hundred (Ksh 258,100 per
the property in dispute, and to the costs month).
of and consequent on the application as
he thinks fit. Ms. Kangara denied all of Mr. Mayaka's claims
and claimed the following:
Mr. Mayaka claimed the following:
• she was already married to one KM (now
• he and Ms. Kangara began to cohabit as deceased), and though they were separated,
husband and wife sometime in 1986 and she did not have the capacity to contract
purchased the property known as Plot No 29 another marriage while her first marriage was
within Dagoreti/Riruta/168 (the "suit still subsisting. She, therefore, only allowed
property") from their joint savings; Mr. Mayaka to manage the suit property
because they were friends; and

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• KM died in 2011, after which Mr. Mayaka RETROSPECTIVE APPLICABILITY OF
harassed her to coerce her into marriage, THE MARRIAGE ACT, 2014, AND
causing her to file a restraining order against MATRIMONIAL PROPERTY ACT, 2013
him.
Before determining the two issues, the Supreme
DECISIONS BY THE HIGH COURT AND Court considered the applicability of the
COURT OF APPEAL Marriage Act 2014 (No. 4 of 2014) (the
"Marriage Act") and the Matrimonial
The High Court determined that Ms. Kangara Property Act (No. 49 of 2013) (the
was married to KM, and the relationship "Matrimonial Property Act") given that the
between Mr. Mayaka and Ms. Kangara was cause of action arose in 2011. The matter was
adulterous. Therefore, the resulting filed in 2012, before the enactment of the two
cohabitation could not be deemed a marriage. acts. It relied on the case of Samuel Kamau
It further held that in the absence of marriage, Macharia & Another vs Kenya Commercial
Mr. Mayaka could not rely on the provisions of Bank Ltd & 2 others, SC Application No 2 of
the MWPA, whose reliefs are based on proof of 2011 [2012] eKLR, which held as follows:
marriage.
“As for non-criminal legislation, the
Mr. Mayaka, being dissatisfied with the High general rule is that all statutes other
Court's decision, moved to the Court of Appeal, than those which are merely declaratory
which conversely determined that there was a or which relate only to matters of
presumption of marriage between Mr. Mayaka procedure or evidence are prima facie
and Ms. Kangara. Therefore, Mr. Mayaka was prospective, and retrospective effect is
entitled to half of the suit property together not to be given to them unless by express
with the developments thereon. words or necessary implication it appears that
this was the intention of the legislature.
Ms. Kangara, dissatisfied with the Court of
Appeal's decision, sought certification and The Supreme Court, therefore, held that the
leave before the Court of Appeal on the basis Marriage Act and the Matrimonial Property Act
that her matter was of general public were not applicable in this matter as the said
importance. Her application was, however, statutes cannot be applied retrospectively.
denied, and she consequently sought for
review of the Court of Appeal's ruling on ISSUES BEFORE THE SUPREME COURT
certification. The Supreme Court granted a
review of the certification, granted leave to file 1. Whether parties to a union arising out
an appeal and confined the parties to the of cohabitation and/or in a marriage
following issues for determination as we shall unrecognized by law can file proceedings
expound on below: under the Married Women's Property
Act? And if so, on what basis would this
1. Whether parties to a union arising out be done?
of cohabitation and/or in a marriage
unrecognized by law can file The Supreme Court held that though section 17
proceedings under the Married of the MWPA (as penned above) applied only to
Women's Property Act? And if so, on 'parties to a marriage; husband and
what basis would this be done? wife', it did not go into details as to how the
marriage came to be or how it was contracted.
2. What relief is available to the present Since the MWPA did not distinguish between
parties? marriages recognized or unrecognized in law,
the Court was of the view that parties to a union
Consequently, Ms. Kangara filed an appeal arising out of cohabitation and in a marriage
before the Supreme Court. unrecognized by law could file proceedings

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under the MWPA. The question then arose marriage can be made. These are:
whether or not the parties to the dispute were
1. The parties must have lived together for a
married.
long time;
The Supreme Court examined the
determination by the Court of Appeal that Ms. 2. The parties must have the legal right or
Kangara was presumed married to Mr. capacity to marry;
Mayaka. It stated that though it is a well-
settled common law principle that long 3. The parties must have intended to marry;
cohabitation of a man and woman, with a gen-
eral reputation as husband and wife, raises a 4. There must be consent by both parties;
presumption that the parties have contracted
marriage, it is a rebuttable presumption and 5. The parties must have held themselves
can disappear in the face of proof that no out to the outside world as being a
marriage existed. married couple;

6. The onus of proving the presumption is

To this end, Ms. Kangara argued that the lack
on the party who alleges it;
of capacity, consent and intention to marry
rebutted any presumption of marriage. She 7. The evidence to rebut the presumption
argued that she did not have the capacity for has to be strong, distinct, satisfactory
the relationship between her and Mr. Mayaka and conclusive; and
to be presumed a marriage as she had been
married to KM since 1980 and had three 8. The standard of proof is on a balance of
children out of that relationship. Additionally, probabilities.
she provided evidence that she was married to
KM by producing her identity card, which bore Despite the Court laying down the above
KM's name. On the other hand, Mr. Mayaka parameters, it was of the view that the doctrine
ought to have disproved Ms. Kangara's claims of presumption of marriage is on its deathbed,
and the burden of proof to prove the existence a view buttressed by the changes to the
of the marriage between the parties fell on matrimonial laws in Kenya. The presumption
him. He only testified that Ms. Kangara was should be used only sparingly where there is
his second wife, for whom he had not paid a cogent evidence to reinforce it.
dowry.
LIMITATIONS ON THE PRESUMPTION
In light of the above, the Supreme Court OF MARRIAGE
agreed with the High Court and Court of
Appeal that there was a long cohabitation
between Ms. Kangara and Mr. Mayaka.
However, given the uncontroverted evidence
by Ms. Kangara, it was found that the Court of
Appeal erred in presuming a marriage between
the parties. The Supreme Court held that it
was unconvinced that Ms. Kangara had
capacity to contract a marriage with Mr.
Mayaka and that the relationship between the
parties and the resulting cohabitation could
not be deemed to have brought forth a The Supreme Court further recognized that
marriage. A presumption of marriage did not relationships exist where couples cohabit
thus apply in this case. without the intention of contracting a
marriage. In such scenarios, couples may
The Court further laid down the strict choose to have an interdependent relationship
parameters within which a presumption of outside of marriage. The Court opined that

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where such a situation is evident, and there is 2. The proof of the common intention; and
no intention of contracting a marriage, the 3. The quantification of the right.
presumption of marriage must never be made
where this intention does not exist. Given that The Court considered the evidence and
interdependent relationships outside marriage determined that the parties' common
are prevalent in society, the Court proposed intention at the time of the purchase of the suit
that it may be time for the National Assembly property was for both parties to have a
and Senate, in collaboration with the beneficial interest in the property, hence
Attorney-General, to formulate and enact giving rise to a constructive trust between Mr.
Statute law that deals with cohabitees in Mayaka and Ms. Kangara.
long-term relationships, their rights, and
obligations. The Court proceeded to quantify the beneficial
interest between the parties, considering not
The Court, therefore, found that the only direct financial contribution in the
circumstances in which a presumption of acquisition of the property but also other
marriage can be upheld are limited. In other forms of contribution, such as the actions of
words, a presumption of marriage is the the parties in maintaining and improving such
exception rather than the rule. properties. The records showed that Ms.
Kangara and Mr. Mayaka had jointly
2. What relief is available to the present contributed to the acquisition and
parties? construction of the suit property and jointly
invested in the property for over 20 years;
The Honourable judges recognized a gap therefore Mr. Mayaka proved his case on a
where Kenya does not have laws to protect balance of probabilities that the suit property
parties to cohabitation in case a dispute ensues was acquired and developed through joint
concerning property acquired during the efforts and/or contributions of the parties. The
subsistence of such cohabitation. Therefore, in Court thus apportioned the division of the
determining the reliefs available to the parties, matrimonial property as 70% to Ms. Kangara
it reasoned that it was crucial to make a and 30% to Mr. Mayaka based on their
finding on the parties' proprietary rights, respective contributions.
whatever the nature of the relationship.
CONCLUSION
The Supreme Court looked at the history of
how the suit property was purchased and was This is a precedent-setting decision as it means
convinced that the two parties contributed to that though the presumption of marriage
the acquisition and development of the suit should be used sparingly, a marriage can be
property, which led to their proprietary presumed to exist based on long cohabitation
interests. These proprietary interests arose out and repute of marriage in the absence of
of a constructive trust which was defined in the cogent evidence to the contrary. This decision
Black Laws Dictionary as 'the right, notwithstanding, it may be difficult to
enforceable solely in equity, to the beneficial ascertain whether your relationship falls
enjoyment of property to which another under the parameters of a presumed marriage
person holds legal title.' and, if so, what your proprietary rights are.
The best way to protect your interests is by
The Court further considered the following consulting an experienced Wealth and Private
guidelines laid down in Elayne Marian Clients lawyer, who based on your
Teresa Oxley v Allan George Hiscock circumstances can advise on the concept of
[2004] EWCA 546 when interrogating the contribution in matrimonial and
existence of a constructive trust: whether it is best to create a family
trust,enter into a pre-nuptial agreement or a
1. The nature of the substantive right; post-nuptial agreement.

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 HOW CAN WE HELP?

At CM Advocates LLP, we have an outstanding team of Wealth and Private Client lawyers
with a wealth of experience in matters of marriage, divorce, children custody and
maintenance, estate planning, family businesses, wealth management and trust
administration, spanning across the East African Region. We welcome you to take
advantage of our team of experts, consult on these critical family issues, and learn how to
better protect your proprietary interests in your family.

Should you have any questions regarding this subject or any related topics, please do
not hesitate to contact us on [email protected] or [email protected]

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