For many years in Kenya, some people have strongly held to the notion that if a couple lives together for several years, then they are considered as married under common law. As a result, some have chosen not to formalize their union.
In Petition No. 9 of 2021, the Supreme Court laid out the strict and limited parameters to which a court may presume the existence of a marriage. It held that a presumption of a marriage is the exception rather than the rule. That the presumption should only be used sparingly where there is cogent evidence to buttress it.
This piece by a top law firm, will focus on the presumption of marriage in Kenya and some legal principles governing it.
Presumption of Marriage: Is it a Marriage under the Marriage Act, No. 4 of 2014?
Getting straight to the point, NO! Section 6 of the Marriage Act recognizes the following marriage types: Christian, Civil, Customary, Islamic, and Hindu marriages. A Christian, Civil or Hindu marriage is monogamous. A marriage celebrated under customary law or Islamic law is presumed to be polygamous or potentially polygamous.
While addressing the question of presumption of marriage, it is worth noting that Section 9 of the Marriage Act, states that a person married in a monogamous type of marriage, shall not contract another marriage and a person married in a polygamous or potentially polygamous marriage, cannot contract another marriage in any monogamous form, subject to the terms prescribed under the Marriage Act.
History of the Presumption of Marriage in Kenya
Kenya’s legal system stems from British Common Law systems which relies on judicial precedents and case law for flexible and evolving legal interpretation in family law practice. Judges play a pivotal role in shaping the law, while equity principles ensure fairness.
An early precedent of the presumption of marriage in Kenya was established under Civil Appeal No. 13 of 1976 (UR) in the case of Hottensiah Wanjiku Yawe versus Public Trustee. Mustafa J.A, opined that a long period of cohabitation as man and wife may give rise to a presumption of marriage in favour of the party asserting it.
The rule for presumption of marriage was further developed by the Court of Appeal in Phylis Njoki Karanja & 2 others v Rosemary Mueni Karanja & Another NRB CA Civil Appeal No. 313 of 2001 [2009] eKLR, with the opinion that the presumption of marriage could be drawn from long cohabitation and acts of general repute. It held that: “Before a presumption of marriage can arise a party needs to establish long cohabitation and acts of general repute; that long cohabitation is not mere friendship or that the woman is not a mere concubine but that the long cohabitation has crystallized into a marriage, and it is safe to presume the existence of a marriage. We are of the view that since the presumption is an assumption it is not imperative that certain customary rites be performed.”
In the circumstance where parties do not lack capacity to marry, it was determined in Mary Wanjiku Githatu v Esther Wanjiru Kiarie [2010] eKLR, by Bosire JA. that, “The existence or otherwise of a marriage is a question of fact. Likewise, whether a marriage can be presumed is a question of fact. It is not dependent on any system of law except where by reason of a written law it is excluded. For instance, a marriage cannot be presumed in favour of any party in a relationship in which one of them is married under statute. However, in circumstances where parties do not lack capacity to marry, a marriage may be presumed if the facts and circumstances show the parties by a long cohabitation or other circumstances evinced an intention of living together as husband and wife.”
When then, does the Court consider the Common Law Principles that give rise to the Presumption of Marriage?
In Kenya, the Court is the only recognized body that can legally determine if the common law principles that give rise to the presumption of marriage arise. A party alleging the existence of a marriage will be required to make an application to the Court and prove that the elements necessary to presume a marriage exists. The Court will conclude if a relationship bears the principles that presume the existence of a marriage on a balance of probabilities.
The Supreme Court held that, “the circumstances in which the presumption of marriage could be upheld were limited”. It stated that, “the presumption of a marriage was the exception rather than the rule”. It made it clear that, “the presumption of marriage is a rebuttable presumption and can disappear in the face of proof that no marriage existed”.
On 27th January 2023, the Supreme Court of Kenya in Petition 9 of 2021, between Mary Nyambura Kangara v Paul Ogari Mayaka [2023] KESC 2 (KLR) laid out the strict and finite criteria to which a court may presume the existence of a marriage. The criteria include:
- Parties must have had the capacity to enter a marriage and they did so in effect.
Parties must have capacity to enter a marriage. Section 6 of the Marriage Act clearly outlines the recognized types of marriages in Kenya and their specific limitations.
2. Long cohabitation of a man and woman, with a general reputation as husband and wife.
The Supreme Court referred to Section 119 of the Evidence Act which provided that “courts could presume the existence of any fact which it thought likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to the facts of the particular case”.
Therefore, if a man and woman cohabited and held themselves out as husband and wife, that coupled with the other criteria discussed herein, raised a presumption of marriage.
3. There must be consent by both parties to contract the relationship.
Parties must consent to contract the relationship.
4. Parties must have intended to marry.
Parties must have had the intention to marry each other.
Final Thoughts
Where there is the intention to be formally recognized as a spouse, parties are encouraged to celebrate their union as per Section 6 of the Marriage Act, No. 4 of 2014. Otherwise, marriage can only be presumed by a Court of competent jurisdiction. The Court will decide based on the facts available to it. It is not a guarantee that a relationship that has existed over a long period of time, shall be presumed as a marriage. The Court held that the onus of proving presumption was on the party who alleged it. Further that, the evidence to rebut the presumption had to be strong, distinct, satisfactory, and conclusive.
Disclaimer: This piece should not be regarded as legal advice, nor should it be considered as a substitute for legal consultation and/or legal advice from the best law firm in Kenya. Feel free to contact us by calling on +254703124871 or click here book an appointment with us.
