The Respondent in this application alleges that he had cohabited with the Applicant from 1986 to 2011. While together, they purchased a piece of property and developed it. A conflict arose causing the Respondent to move the High Court vide Originating Summons, seeking a declaration that the suit property was acquired and developed jointly with the Applicant during their marriage by cohabitation, and hence that it was jointly owned. He also sought restraining orders barring the Applicant from disposing of the suit property; and that it be subdivided equally and each share be registered in the respective party’s name, or that it be valued and sold, and the proceeds shared equally.

The Applicant herein denied being married to the Respondent, since she was married to another man during the same period, and hence lacked capacity to contract a 2nd marriage. Further, based on the fact that there was no marriage, the Respondent could not be afforded protection under the Married Women’s Property Act (1882), (MWPA). She submitted that she solely purchased and developed the said property, and the Respondent was just a tenant.

The High Court ruled that it could not presume marriage despite parties cohabiting for a long period, and therefore the Respondent could not rely on the provisions of the MWPA.

The Respondent appealed to the Court of Appeal, which allowed the appeal and presumed the existence of a marriage. It further ordered the property to be divided into two, giving a share to each party. The Applicant, being aggrieved, sought certification and leave from the Court of Appeal to appeal to the Supreme Court.

The application was denied on the grounds that the issues the Applicant intended to raise at the Supreme Court were not before the trial court and the Court of Appeal. Further the matters were straight forward, of a private nature and did not meet the standard of what amounts to a matter of general pubic importance.

The above necessitated the filing of the current application, which requests the Supreme Court to review the Court of Appeal decision dated 21st February, 2020 in CACA SUP No. 4 of 2019, and to grant the Applicant leave to appeal to the Supreme Court against the Court of Appeal’s Judgment dated 25th January, 2019.


The issues raised before the Supreme Court were whether parties in an unrecognized marriage where no prayer is sought for presumption of marriage can file a case under MWPA, which provides for husband and wife; whether a suit for presumption of marriage should precede a claim under the MWPA; the considerations to be taken into account in determining property ownership in marriage; and whether the Court of Appeal made an actual assessment of the parties respective contribution to acquisition and development of the suit property.

Other issues raised were the presumption of marriage where there is no consent; capacity of parties to enter into multiple relationships; and principles of equality of ownership of property, which are stated to be constitutional controversies affecting the unit of family. The Applicant was of the view that these issues touch on the Bill of Rights and principles of equity and equality governing sharing of property in a marriage.

The court was further called upon to address claims by men, so that the courts would know which principles to apply, since men and women play different roles in marriage. The Applicant submitted that these were matters of public interest because of rampant long-term cohabitation trends in Kenya; and that these issues transcended the circumstances of this particular case, and had a bearing on marriage and the family, which are fundamental pillars of social order, protected by the Constitution. The Applicant further submitted that there was an uncertainty in law relating to whether the Common Law doctrine on presumption of marriage ought to continue being applied under the current constitutional dispensation, due to lack of recognition under the current provisions of the Marriage Act No. 4 of 2014.

The Respondent opposed the application on the grounds that there was no appeal by either party on the High Court’s finding that there was long cohabitation between the parties. This appeal, according to the Respondent, was limited to the Applicant’s denial of consent, and capacity to enter into marriage by cohabitation, due to her undissolved marriage to one ‘K’. The Respondent further submitted that the Marriage Act did not apply retrospectively and that presumption of marriage, based on common law doctrine, was not ousted by the Marriage Act. He relied on Section 119 of Evidence Act on presumption of facts. He submitted that the application does not raise matters of general public importance, and it was properly dismissed by the Court of Appeal. He also submitted that the matters intended to be placed before the Supreme Court were never placed before the superior courts before, and do not transcend the interests of the parties.

The Supreme Court was of the view that the issues the Applicant formulated for determination were informed by the dissenting opinion of the Court of Appeal. It stated that a dissenting opinion is not a panacea for a meritorious review application before the Supreme Court, due to the fact that to the judges, dissenting opinions grant them an avenue to freely express their contrary views while maintaining the brotherhood and comity of service to the law. On the other hand, to the litigants and the society at large, dissenting opinions assures them that their views have not been disregarded and may, in fact, form the basis of future development in that particular area of the law.


Considering the fact that the question of property acquired during cohabitation, or in a marriage which is unrecognized by law, is an important one for the general public, the Supreme Court could not shut its eyes to the need to settle the law in that regard. The court therefore allowed a review of the Court of Appeal’s decision, and limited the submissions to 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, the basis upon which this would be done.

By Praxedes Kageha

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