Summary of the Supreme Court of Kenya Judgement in Petition No 9 of 2021 Between Mary Nyambura Kangara and Paul Ogari Mayaka.
The Supreme Court of Kenya 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.
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.
The Section provides 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.
Ms. Kangara, dissatisfied with the Court of Appeal’s decision, sought to Appeal to the Supreme Court but her application was denied. Consequently, she sought review of the Court of Appeal’s ruling.
The Supreme Court addressed two issues in this case. First, 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. The Second issue to be considered was; what relief was available to the parties in this matter.
On the first issue, the court determined that it was not convinced that the relationship between the parties could be considered a marriage. Mr. Mayaka had not provided sufficient evidence to prove that they were married, therefore, the doctrine of presumption of marriage did not apply in their case.
The court affirmed that the doctrine of presumption of marriage still exists in Kenya but insisted it is the exception rather than the rule and ought to be used sparingly and only when there is compelling evidence to support it. The court set out eight conditions that must be satisfied to presume a marriage and they are:
- The parties must have lived together for a long period of time.
- The parties must have the legal capacity to marry.
- The parties must have intended to marry.
- There must be consent by both parties.
- The parties must have held themselves out to the outside world as being a married couple.
- The onus of proving the presumption is on the party who alleges it.
- The evidence to rebut the presumption has to be strong, distinct, satisfactory and conclusive.
- The standard of proof is on a balance of probability.
The court also noted that society is changing, and more couples are living together for long periods, in interdependent relationships, without getting married. The court emphasized that in those kinds of situations, a presumption of marriage can never be made as the intention to marry does not exist.
The court went on to state that perhaps it is the right time for parliament to work with the office of the Attorney General to recognize adult interdependent relationships and enact Statute that deals with cohabitees in long-term relationships; their rights, and obligations.
On the second issue, the Supreme Court was convinced that the two parties had both contributed to the acquisition and development of the suit property which led to proprietary rights. The court determined that the Applicant had a legal right to the property as there existed a constructive trust. This type of trust, enforceable solely in equity, enables an individual to enjoy property even if someone else holds the title. In a constructive trust, the registered owner is deemed to hold the property in trust for both parties.
The Court established that there had been a common intention between the parties that they should both benefit from the property. The court relied not only on financial contribution to the acquisition of the property but other forms of contribution such as the actions of the parties in maintaining and improving the premises.
The court stated that the Applicant had managed to prove his case on a balance of probability that the property had been acquired and developed through joint efforts. The court therefore divided the property, awarding the Ms. Kangara 70% and Mr. Mayaka 30% based on their respective contribution
CONCLUSION
The court acknowledged the evolving landscape of matrimonial practices in the country, including the increasing number of couples who choose to live together outside of traditional marriage. In light of this trend, the court called upon parliament to consider reflecting these social changes in the law by recognizing adult interdependent relationships
DATE: MARCH 27, 2023 BY: ANNE GATHIRWA
For more insights pertaining to this matter, you can reach the writer at annegathirwalaw@gmail.com. You can also contact us at MMS Advocates, Lower Duplex Apartments, LOWER HILL ROAD, or email us at info@mmsadvocates.co.ke.