_edite.png)
Disclaimer : This article is meant for informational purposes only and should not be construed as a legal opinion. Should you have any questions or need clarifications on the subject matter, kindly feel free to contact us for legal advice.
The idea of 'open relationships' was introduced to me sometime in the year 2008 when I sought to open my first facebook account. It was the last day of one of those mid-term breaks and before I resumed school, I visited one cybercafé in town. Interestingly, this was not just any other cybercafé but one which was being attended to by Gloria, the elder sister of Cynthia - my high school bae at the time. With the help of Gloria, I now had a facebook account to my name and while setting up my profile we were confronted with the question of my relationship status. Of course knowing my little history with Cynthia, Gloria quickly selected 'in a relationship' option but what caught my eye in the list of options was the option of 'in an open relationship'. I couldn't ask Gloria what that meant so I kept it to myself until later that day when I got back to school so that I could table the 'motion' before my buddies for a discussion and yes, I was enlightened by those who had knowledge on the subject matter.
Just like me, the concept of open relationships might have been alien to the masses in Kenya prior to the social media era but this is no longer the case. No wonder the Supreme Court of Kenya (SC) called upon to adjudicate on a question of presumption of marriage observed in relevant parts thus -
However, 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 intention to be within the confines of matrimony. This (Supreme) Court recognizes that there exists 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. (Emphasis are mine)
The above quoted passage is to be found in paragraph 66 of the unanimous judgment of the SC in Mary Nyambura Kangara alias Mary Nyambura Paul v Paul Ogari Mayaka (Petition No. 9 of 2021) dated and delivered at Nairobi on Friday the 27th of January, 2023 by a five-judge bench comprising of Kenya's Deputy Chief Justice Philomena Mwilu and Supreme Court Justices, Mohamed Ibrahim, Smokin Wanjala, Njoki Ndungu and Isaac Lenaola. For purposes of this brief, we will simply refer to the parties in this instant case as Paul and Mary.
In the judgment, the SC found that the doctrine of presumption of marriage is on its deathbed in Kenya and that long periods of cohabitation doesn't always have to give rise to a presumption of marriage. Sometimes the parties might just be in 'interdependent relationships outside marriage', which I hereby equate to open relationships (in the context of facebook). For that reason the SC directed that, presumption of marriage should only be used sparingly.
Case Background
The bone of contention in the instant petition arose out of a case for division of matrimonial property instituted by Paul at the High Court in Nairobi as Civil Suit No. 6 of 2012.
At the High Court
Paul's contention before the High Court (HC) was that he began cohabiting with Mary sometime in the year 1986. That from joint savings, they acquired land. The land in question was registered in the name of Mary and according to Paul, they resolved to do so because the seller of the land was uncomfortable selling it to a non-kikuyu like Paul, who hails from the Abagusii community. Paul then urged that they took possession of the land between 1992 and 1993, developed it, constructed rooms thereon, one of which they used as their matrimonial home and let the others out (henceforth referred to as the 'suit property'). It was Paul's case that he did the legwork relating to connection of electricity, sewerage and water to the suit property in addition to the fact that he operated a bar thereon. Paul then decried what he termed as eviction from the alleged matrimonial home by Mary in the year 2011.
Mary vehemently opposed the claim by Paul stating that she only allowed Paul to manage the suit property because they were friends. Mary submitted to the HC that she was already married to one KM now deceased. For that reason, she had no capacity to contract another marriage while her first marriage was still subsisting. Mary decried what she termed as harassment and coercion by Paul to enter into a marriage the moment her KM died in the year 2011.
While dismissing Paul's case, the HC presided over by Musyoka J found in its judgment delivered on 9th June 2017 that, although there was long cohabitation between the parties, the principle of presumption of marriage was inapplicable under the circumstances seeing that Mary was already married to KM.
At the Court of Appeal
Aggrieved by the judgment of the HC, Paul filed Civil Appeal No. 343 of 2017 at the Court of Appeal (COA) citing two grounds to wit the learned trial judge of the HC erred, (i) in fact, in finding that the appellant, during the subsistence of the relationship between the appellant and the respondent, was married to one KM; and (ii) in law, in declining to deal with the property acquired by the respondent and the appellant during the relationship and/or cohabitation of parties, the fact that the appellant was married to somebody else notwithstanding.
The COA allowed Paul's appeal holding that HC erred in finding that there was long cohabitation but declined to presume marriage because of one KM, whose existence the COA found was not proved. The COA presumed existence of marriage and allowed the appeal and ordered the suit property to be divided into two halves, a share for each party.
At the Supreme Court
Dissatisfied with the COA judgment, Mary filed an appeal before the SC seeking the following orders -
A declaration that the common law doctrine of presumption of marriage has no application in Kenya in light of Article 45 of the Constitution, Section 3 of the Judicature Act, and the
comprehensive provisions of the Marriage Act No. 4 of 2014.6
Petition No. 9 of 202
A declaration that presumption of marriage is no longer a concept which is beneficial to the institution of marriage, to the status of the parties and to the issue of their union or in the alternative.
A declaration that the doctrine of presumption of marriage ought to be sparingly applied as per this Court’s guidelines and principles.
An order setting aside the judgment of the Court of Appeal and upholding the judgment of the trial court.
An order granting costs to the appellant.
Any other relief that the court may deem just to make.
The SC would then frame two (2) pertinent issues for determination as follows -
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, upon what basis would this be done?
What relief is available to the present parties?
Contribution by Amicus Curiae - Initiative for Strategic Litigation in Africa (ISLA)
Granted audience, ISLA being the only amicus curiae submitted to the SC that long cohabitation and general repute will give rise to a rebuttable presumption that marriage exists between a man and wife as was recognized in Hortensia Wanjiku Yawe v The Public Trustee Nairobi (1976) eKLR and Mary Wanjiku Githatu v Esther Wanjiku Kiarie (2010) eKLR. It posited that urged is currently there is no legal framework to recognize and provide legal consequences to cohabitation relationships. To this end, courts have been applying the legal framework applicable to recognized marriages.
ISLA further urged that though the division of property is determined based on the contribution, decisions do not take into consideration contribution to ensure equality. Consequently, parties who find themselves in cohabitation unions and who contribute to the acquisition and development of property that is used for the benefit of that union are often deprived of this property when the union ends. It urged that if protections afforded to marriage are extended to these relationships, the same should be extended even in the division of property.
In the end, ISLA submitted that there is need for a legal standard that ensures the right of parties to all forms of marriage, including cohabitation unions or other unrecognized marriages that ensure the protection of the right to access property. It urged that the beginning of the development of of this legal standard can start with the SC deciding on the rights of those affected parties and how property should be equitably divided.
Supreme Courts Analysis of the Issues for Determination
Before embarking on the determination of the issues as framed, the SC took judicial notice of the fact that the cause of action in the instant case arose in the year 2011 yet the matter was filed in 2012 before the enactment of the Marriage Act, 2014 and the Matrimonial Property Act, 2013. The SC minded by its decision in Samuel Kamau Macharia & Anor v Kenya Commercial Bank Ltd & 2 Others (2012) eKLR which gives directions on retrospective application of legislation. In that case, the SC rendered itself on the matter of retrospectivity thus -
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.” (emphasis added)
From the foregoing, the SC determined that the Marriage Act, 2014 and Matrimonial Property Act No. 49 of 2013 are not applicable in the instant case because the cause of action arose before the said statutes were enacted into law and cannot be applied retrospectively.
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, upon what basis would this be done?
It was Mary's case that the existence of a marriage recognized in law remains the central status that grants anyone the legal standing under Section 17 of the Married Women's Property Act (MWPA). Paul contented that the correct interpretation of the term marriage in the MWPA should be that it applies to all marriages recognized or unrecognized in law. Section 17 of the MWPA reads in relevant parts 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.
According to the SC it was apparent that MWPA applied only to 'parties to a marriage' (husband and wife), but it was worth noting that MPWA only refers to a 'parties to a marriage' and 'married women'. It does not go into details as to how the marriage come to be or how it was contracted. SC was therefore of the view that parties to a union arising out of cohabitation and/or in a marriage unrecognized by law could file proceedings under the MWPA upon the basis that the MWPA does not distinguish between marriages recognized or unrecognized in law. In other words the SC recognized that MWPA applies to all marriages recognized or unrecognized in law.
The SC then went ahead to cite (with approval) a long line of cases that buttress recognition of presumption of marriage on the basis of cohabitation but as a rebuttable presumption which can disappear in the face of proof that no marriage existed. They include inter alia, Hortensia Wanjiku Yawe, Mary Njoki, Phylis Njoki Karanja & 2 others v Rosemary Mueni Karanja & another (2009) eKLR, Phylis Njoki Karanja & 2 others v Rosemary Mueni Karanja & another (2009) eKLR, Mary Wanjiku Githatu v Esther Wanjiru Kiarie (2010) eKLR, CWN v DK (2021) eKLR.
In the instant case, the SC faulted the COA's judgment for ignoring crucial evidence tabled by Mary at the HC to rebut the presumption of marriage between her and Paul. At the HC Mary urged that it is her father that gave her the name 'Paul' upon her baptism in the year 1979. She produced her baptism card before the HC and also averred that she added the name 'Paul' on the suit property because she was having dispute with her now deceased husband KM. She urged that although she had other properties, the suit property was the only one with the name 'Paul'. The SC found that COA disregarded Mary's evidence regarding her name and reasons for using the name 'Paul' and that there was nothing on the record to show that Paul controverted the production of the baptism card.
Accordingly Mary produced her national identification card which bears the name 'Kangara' out of the name 'KM' the deceased husband. The SC found that by parity of reason the learned trial judge of the HC was well within his bounds to determine that 'Kangara' was her husbands name bearing in mind that Kenyan adult women have their father's or husbands name as their surnames in their official national identification cards. The SC was therefore convinced that Mary had sufficiently proved that her name is Mary Nyambura Kangara and the name Kangara is attributable to the deceased man 'KM' with whom they got married under the customary laws of the Agikuyu community.
From the evidence on record the SC agreed with both the HC and the COA that there was long cohabitation between Mary and Paul but the SC was hesitant to find a presumption of marriage between them. Aside from finding that Mary had no capacity to contract a second marriage until 2011 when KM died, the SC also noted that Paul by his own testimony had a first wife and so the relationship (if any) between Paul and Mary was at best, adulterous. In the prevailing circumstances the SC returned a verdict that the relationship in question between Paul and Mart was not one of the safe instances where a court can rightly presume a marriage.
At that point, the SC was minded to layout strict parameters within which a presumption of marriage can be made thus -
The parties must have lived together for a long period of time
The parties must have the legal right or 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 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 probabilities
But those parameters notwithstanding, the SC pointed out that it was cognizant of emerging trends in relationships which are outside the traditional, religious, cultural, economic and social norms. The SC pointed out that in the present times, it was common for two consenting adults to live together for long durations where the two adults have neither the desire, wish nor intention to be within the confines of matrimony. The SC recognized that there exists 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, the SC states that it is a reality of the times we live in today. To drive the point home, the SC painted the picture of a person who may have been in a marriage before and the marriage is no more due to death of a spouse or divorce. Due to their prior experiences, such persons may choose to have an interdependent relationship outside of marriage. For others, it may just be their desire never to marry but have a partner without the confines of marriage. Where such situation is evident and the there is no intention whatsoever of contracting a marriage, the SC directed, that a presumption of marriage must never be made. It must always be remembered that marriage is a voluntary union. As such, courts should shy away from imposing ‘marriage’ on unwilling persons.
In addition, the SC was minded to mention that, current statistics reveal that a man and a woman can choose to cohabit with the express intention that their cohabitation does not constitute a marriage. The pervasiveness of having interdependent relationships outside marriage over the past few decades means that no inferences about marital status can be drawn from living under the same roof. The SC further observed that ‘Interdependent relationships outside marriage’ is not a new concept. In Alberta, Canada, since 2003, Adult Interdependent Relationships have been recognized and protected through the Adult Interdependent Relationships Act. This creates a specific type of relationship, called an Adult Interdependent Relationship (“AIR”). This term is used in place of the ‘common law relationship’. The Act gives rights and obligations to couples in qualifying long-term relationships.
In this regard, the SC challenged the Kenyan National Assembly and the Senate in collaboration with the Attorney-General to consider formulating and enacting statute law that deals with cohabitees in long-term relationships; their rights, and obligations.
As for now, the SC finds that presumption should be used sparingly by the courts below within the strict parameters it set and that presumption of marriage should be used as the exception rather than the rule.
What relief is available to the present parties?
In the instant case, the SC found that there was a common intention of the parties at the time of purchase of the suit property which gave rise to a constructive trust between Mary and Paul. Constructive trust was discussed by the COA in the case of Juletabi African Adventure Limited & another v Christopher Michael Lockley (2017) eKLR (which the SC cited with approval in the instant case) as follows -
In the absence of an express trust, we have trusts created by operation of the law. These fall within two categories; constructive and resulting trusts. Given that the two are closely interlinked, it is perhaps pertinent to look at each of them in relation to the matter at hand. A constructive trust is an equitable remedy imposed by the court against one who has acquired property by wrong doing. … It arises where the intention of the parties cannot be ascertained. If the circumstances of the case are such as would demand that equity treats the legal owner as a trustee, the law will impose a trust. A constructive trust will thus automatically arise where a person who is already a trustee takes advantage of his position for his own benefit.... As earlier stated, with constructive trusts, proof of parties’ intention is immaterial; for the trust will nonetheless be imposed by the law for the benefit of the settlor. Imposition of a constructive trust is thus meant to guard against unjust enrichment. (Emphasis are mine)
The SC Found that there was a common intention between Mary and Paul to have a beneficial interest in the suit property. There was evidence that Paul paid for water and electricity connection charges and bills from when the property was constructed all the way to the year 2011. However by evicting Paul in the business premises contrary to the common intention in the year 2011, Mary unjustly enriched herself with a property meant to be of benefit to here and Paul.
Having established that there was common intention and that both parties should have a beneficial interest in the suit property, the SC now embarked on the quantifying the beneficial interest to the parties. From the evidence of contribution in court, the SC found that the share of the parties was to be apportioned as 70% in favor of Mary and 30% in favor of Paul.
The final orders of the SC in the instant case were therefore as follows -
The appeal dated 12th August 2021 partially succeeds.
A presumption of marriage between the appellant and the respondent does not exist.
Both parties having a beneficial interest in the property, the share is 70% for Mary and 30% for Paul
Each party to bear their own costs.
THE END
Comments