Supreme Court Rules ‘Come We Stay’ is Not Marriage

January 30, 2023

The Supreme Court has dismissed the presumption that couples who have been cohabiting are automatically married.

The court delivered the ruling in a long-running dispute between two cohabitees who were fighting for an equal share of a property that they jointly acquired.

Paul Ogari Mayaka and his ex-lover Mary Nyambura Kangara alias Mary Nyambura Paul cohabited between 1986-2011, during which time they acquired a matrimonial home in Dagoretti.

When they broke up in 2011, Paul moved to court claiming the woman evicted him from their matrimonial home despite his contribution towards the acquisition and development of the property.

He said they purchased the property through joint savings but it was registered in the woman’s name because its owner was not comfortable selling it to him because he was not from the seller’s tribe.

Paul Mayaka said they constructed rooms on the property, one of which they used as their matrimonial home, and rented out the others.

“I did the legwork relating to the connection of electricity, sewerage, and water to the premises. I also operated a bar from the premises,” he said.

At the time, he said, the rentals were fetching Sh258,100 per month.

But the woman rejected the claims and said Paul was just a friend. “I allowed him to manage the suit property because we were friends,” she said.

The High Court dismissed the man’s case after establishing that although there was long cohabitation between the parties, the principle of presumption of marriage was inapplicable since the woman was already married under customary law to one KM, now deceased.

Although they were separated, she never divorced him.

Dissatisfied with the judgment, the man moved to the Court of Appeal, which held that there was a presumption of marriage between the two parties and proceeded to apportion the suit property into two halves, a share for each party.

But the woman was dissatisfied and moved the Supreme Court, where judges Philomena Mwilu, Smokin Wanjala, Njoki Ndungu, Isaac Lenaola and William Ouko found that there existed no marriage between the appellant and the respondent therefore the Matrimonial Property Act, Act No. 49 of 2013 were not applicable in the matter.

The Supreme Court agreed with the woman that she was not capable of entering into another marriage with the man, thus the presumption of marriage could not be made in that circumstance.

“The respondent, having claimed that he was married to the appellant, ought to have adduced cogent evidence to prove the marriage. On analysis and guided by the record, we are unconvinced that the appellant (woman) had the capacity to contract a marriage with the respondent (man),” they said.

The court warned that the doctrine of presumption of marriage is on its deathbed following changes to the matrimonial laws in Kenya.

“It is becoming increasingly common for two consenting adults to live together for long durations where these two adults have neither the desire, wish nor intended to be within the confines of matrimony,” the judges said.

“Where such a 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.”

The court recognised that there exist 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,” they said.

The Supreme Court urged the National Assembly, the Senate and the Attorney-General to formulate and enact Statute law that deals with cohabitees in long-term relationships, their rights, and obligations.

“We are, therefore, not convinced that his cohabitation with the appellant was sufficient to prove his marriage to the appellant,” the court concluded.

It further directed the man and the woman two share the contentious property on a 70:30 basis.

“Both parties having a beneficial interest in the property, the share is 70 per cent for the appellant and 30 per cent for the respondent,” said the judges.

The judges also ruled that going forward, a marriage party must prove their contribution to the matrimonial property to determine they share upon divorce.

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