'presumption Of A Marriage Is The Exception Rather Than The Rule.' The Question Of Presumption Of Marriage In Kenya

On 27^th 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

Paul Ogari Mayaka ("Mr. Mayaka") instituted a suit on 5^th November 2013 at the High Court against Mary Nyambura Kangara ("Ms. Kangara"), claiming the division of matrimonial property. He invoked the provisions of Section 17 of the Married Women's Property Act 1882 (now repealed) (the "MWPA"), which states as follows: 'In any question between husband and wife as to the title to or possession of property, either party ……… may apply by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.' Mr. Mayaka claimed the following:

• he and Ms. Kangara began to cohabit as husband and wife sometime in 1986 and purchased the property known as Plot No 29 within Dagoreti/Riruta/168 (the "suit property") from their joint savings;
• the suit property was registered in Ms. Kangara's sole name because the seller of the property was not comfortable selling the suit property to a non–Kikuyu, and Mr. Mayaka belonged to the Kisii tribe;
• after taking possession of the suit property between 1992 and 1993, he and Ms. Kangara developed and constructed rooms, one of which they used as their matrimonial home. They sub-let the other rooms, and Mr. Mayaka operated a bar on the suit property; and
• Kangara evicted him from their matrimonial home in 2011, when the rent collected from the suit property amounted to Kenya Shillings Two Hundred and Fifty-Eight thousand and One Hundred (Ksh 258,100 per month).

Ms. Kangara denied all of Mr. Mayaka's claims and claimed the following:

• she was already married to one KM (now deceased), and though they were separated, she did not have the capacity to contract another marriage while her first marriage was still subsisting. She, therefore, only allowed Mr. Mayaka to manage the suit property because they were friends; and
• KM died in 2011, after which Mr. Mayaka harassed her to coerce her into marriage, causing her to file a restraining order against him.

Decisions by the High Court and Court of Appeal

The High Court determined that Ms. Kangara was married to KM, and the relationship between Mr. Mayaka and Ms. Kangara was adulterous. Therefore, the resulting cohabitation could not be deemed a marriage. It further held that in the absence of marriage, Mr. Mayaka could not rely on the provisions of the MWPA, whose reliefs are based on proof of marriage. Mr. Mayaka, being dissatisfied with the High Court's decision, moved to the Court of Appeal, which conversely determined that there was a presumption of marriage between Mr. Mayaka and Ms. Kangara. Therefore Mr. Mayaka was entitled to half of the suit property together with the developments thereon. Ms. Kangara, dissatisfied with the Court of Appeal's decision, sought certification and leave before the Court of Appeal on the basis that her matter was of general public importance. Her application was, however, denied, and she consequently sought for review of the Court of Appeal's ruling on certification. The Supreme Court granted a review of the certification, granted leave to file an appeal and confined the parties to the following issues for determination as we shall expound on below:

1. 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, on what basis would this be done?
2. What relief is available to the present parties?

Consequently, Ms. Kangara filed an appeal before the Supreme Court.

Retrospective applicability of the Marriage Act, 2014, and Matrimonial Property Act, 2013

Before determining the two issues, the Supreme Court considered the applicability of the Marriage Act 2014 (No. 4 of 2014) (the "Marriage Act") and the Matrimonial Property Act (No. 49 of 2013) (the "Matrimonial Property Act") given that the cause of action arose in 2011. The matter was filed in 2012, before the enactment of the two acts. It relied on the case of Samuel Kamau Macharia & Another vs Kenya Commercial Bank Ltd & 2 others, SC Application No 2 of 2011 eKLR, which held as follows: "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." The Supreme Court, therefore, held that the Marriage Act and the Matrimonial Property Act were not applicable in this matter as the said statutes cannot be applied retrospectively.

Issues before the Supreme Court

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, on what basis would this be done?

The Supreme Court held that though section 17 of the MWPA (as penned above) applied only to 'parties to a marriage; husband and wife', it did not go into details as to how the marriage came to be or how it was contracted. Since the MWPA did not distinguish between marriages recognized or unrecognized in law, the Court was of the view that parties to a union arising out of cohabitation and in a marriage unrecognized by law could file proceedings under the MWPA. The question then arose whether or not the parties to the dispute were married. The Supreme Court examined the determination by the Court of Appeal that Ms. Kangara was presumed married to Mr. Mayaka. It stated that though it 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, it is a rebuttable presumption and can disappear in the face of proof that no marriage existed. To this end, Ms. Kangara argued that the lack of capacity, consent and intention to marry rebutted any presumption of marriage. She argued that she did not have the capacity for the relationship between her and Mr. Mayaka to be presumed a marriage as she had been married to KM since 1980 and had three children out of that relationship. Additionally, she provided evidence that she was married to KM by producing her identity card, which bore KM's name. On the other hand, Mr. Mayaka ought to have disproved Ms. Kangara's claims and the burden of proof to prove the existence of the marriage between the parties fell on him. He only testified that Ms. Kangara was his second wife, for whom he had not paid a dowry. In light of the above, the Supreme Court 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 marriage. A presumption of marriage did not thus apply in this case. The Court further laid down the strict parameters within which a presumption of marriage can be made. These are:

1. The parties must have lived together for a long 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; and
8. The standard of proof is on a balance of probabilities.

Despite the Court laying down the above parameters, it was of the view that the doctrine of presumption of marriage is on its deathbed, a view buttressed by the changes to the matrimonial laws in Kenya. The presumption should be used only sparingly where there is cogent evidence to reinforce it.

Limitations on the Presumption of Marriage

The Supreme Court further recognized that relationships exist where couples cohabit without the intention of contracting a marriage. In such scenarios, couples may choose to have an interdependent relationship outside of marriage. The Court opined that where such a situation is evident, and there is no intention of contracting a marriage, the presumption of marriage must never be made where this intention does not exist. Given that interdependent relationships outside marriage are prevalent in society, the Court proposed that it may be time for the National Assembly and 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. The Court, therefore, found that the circumstances in which a presumption of marriage can be upheld are limited. In other words, a presumption of marriage is the exception rather than the rule.

 What relief is available to the present parties?

The Honourable judges recognized a gap where Kenya does not have laws to protect parties to cohabitation in case a dispute ensues concerning property acquired during the subsistence of such cohabitation. Therefore, in determining the reliefs available to the parties, it reasoned that it is crucial to make a finding on the parties' proprietary rights, whatever the nature of the relationship. The Supreme Court looked at the history of how the suit property was purchased and was convinced that the two parties contributed to the acquisition and development of the suit property, which led to their proprietary interests. These proprietary interests arose out of a constructive trust which was defined in the Black Laws Dictionary as 'the right, enforceable solely in equity, to the beneficial enjoyment of property to which another person holds legal title.' The Court further considered the following guidelines laid down in Elayne Marian Teresa Oxley v Allan George Hiscock EWCA 546 when interrogating the existence of a constructive trust:

1. The nature of the substantive right;
2. The proof of the common intention; and
3. The quantification of the right.

The Court considered the evidence and determined that the parties' common intention at the time of the purchase of the suit property was for both parties to have a beneficial interest in the property, hence giving rise to a constructive trust between Mr. Mayaka and Ms. Kangara. The Court proceeded to quantify the beneficial interest between the parties, considering not only direct financial contribution in the acquisition of the property but also other forms of contribution, such as the actions of the parties in maintaining and improving such properties. The records showed that Ms. Kangara and Mr. Mayaka had jointly contributed to the acquisition and construction of the suit property and jointly invested in the property for over 20 years; therefore Mr. Mayaka proved his case on a balance of probabilities that the suit property was acquired and developed through joint efforts and/or contributions of the parties. The Court thus apportioned the division of the matrimonial property as 70% to Ms. Kangara and 30% to Mr. Mayaka based on their respective contributions.

Conclusion

This is a precedent-setting decision as it means that though the presumption of marriage should be used sparingly, a marriage can be presumed to exist based on long cohabitation and repute of marriage in the absence of cogent evidence to the contrary. This decision notwithstanding, it may be difficult to ascertain whether your relationship falls under the parameters of a presumed marriage and, if so, what your proprietary rights are. The best way to protect your interests is by consulting an experienced Wealth and Private Clients lawyer, who based on your circumstances can advise on the concept of contribution in matrimonial property  and whether it is best to create a family trust , enter into a pre-nuptial agreement or a post-nuptial agreement .Please click here to download the article

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This article is for informational purposes only and should not be construed as legal advice.