The supreme court of Kenya distinguishes between presumption of marriage and long cohabitation as a family forming union not necessary a marriage


After the end of a 25 year cohabitation with MNK and subsequent eviction from the matrimonial home, an aggrieved POM instituted Nairobi High Court Civil Suit No 6 of 2012, POM vs MNK, by way of an originating summons dated November 5, 2013 against the appellant, MNK, whom he claimed to be his wife. MNK invoked the provisions of section 17 of the Married Women’s Property Act (which is now repealed)[1] (1882), (MWPA) [2] on the claim for division of matrimonial property.

POM sought to enforce his share of the property acquired during the subsistence of the cohabitation relationship by invoking Section 17 of the MWPA of 1882 – 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.

In his summons, POM’s contention was that he and MNK began to cohabit as husband and wife sometime in 1986. It was his case that from joint savings, they purchased the matrimonial property. He asserted that he belonged to the Kisii tribe and that the seller who belonged to the Kikuyu tribe was not comfortable selling the parcel of land to a non-Kikuyu therefore, the parties resolved to have the property registered in MNK’s name who belonged to the Kikuyu tribe, although they had jointly contributed to its acquisition.

Litigation history

The High Court dismissed the suit and found that although there was long cohabitation between POM and MNK, the principle of presumption of marriage, was inapplicable under the circumstances seeing that the appellant was already married to KM. The High Court found that MNK did not have the capacity to marry POM, that the relationship between the parties was adulterous, and the resulting cohabitation could not be deemed a marriage. In the absence of a marriage, the court held that POM could not rely on the provisions of MWPA whose reliefs are based on proof of marriage.

Dissatisfied with the High Court findings, POM approached the Court of Appeal which held that the High Court erred in finding that there was long cohabitation but declined to presume marriage because of a one KM, whose existence the Court of Appeal found was not proved. The appellate court presumed the existence of a marriage and allowed the appeal, and ordered the suit property to be divided into two equal halves, a share for each party. 

Aggrieved with the Court of Appeal decision, MNK filed an appeal to the Supreme Court. In the Supreme Court, MNK argued that parties to a marriage must have the capacity to enter into a marriage and that she did not have the requisite capacity for the relationship between her and POM in order for a marriage to be presumed as she was married to KM and had three children out of that relationship. In addition, she argued that a long-term relationship that resembled a marriage was not a marriage. And further that she solely contributed to the acquisition of the suit property. 

The findings of the Supreme Court

The Supreme Court addressed itself to two main issues   – first, whether parties to a union arising out of cohabitation and/or in a marriage unrecognized by law can file proceedings under the MWPA, and if so, on what basis. The Second issue to be considered was; what were the principles a court ought to consider in assessing the beneficial interests due to cohabiting couples upon separation.

Of applicable law

On the first issue, in its decision made on 27 January 2023, the court recognized that the cause of action arose in 2011 and the matter was filed in 2012 before the enactment of the Marriage Act 2014 and The Matrimonial Property Act 2013.  Therefore, the court found that the Marriage Act and Matrimonial Property Act were not applicable as the cause of action arose before the said statutes were enacted into law and could not be applied retrospectively.

On the application of MWPA, the court held that section 17 of MWPA provided that in any question between husband and wife as to the title to or possession of the property, either party could apply to the High Court for orders with respect to the property in dispute. The MWPA applied only to parties to a marriage – husband and wife; as it referred to parties to a marriage and married women. However, MWPA did not go into details as to how the marriage came to be or how it was contracted. Accordingly, the court held that parties to a union arising out of cohabitation and/or in a marriage unrecognized by law could file proceedings under the MWPA on the understanding that MWPA did not distinguish between marriages recognized or unrecognized in law. The MWPA applied to all marriages recognized or unrecognized in law.

The legal status of the parties’ relationship

Having disposed the question of the legal regime applicable, the court set out to determine the legal status of the relationship that existed between POM and MNK. The court acknowledged the existence of a long cohabitation between POM and MNK, however, it disagreed with POM that the long cohabitation amounted to a marriage and held that the Court of Appeal erred in presuming a marriage between POM and MNK. In the court’s view, MNK did not have the capacity to contract a marriage with POM owing to the fact that she was married to KM until 2011 when he died.

The court went on to opine that this was not one of the safe instances where a court could rightly presume a marriage as the Court of Appeal had done because the relationship between the parties and the long cohabitation could not be deemed to have brought forth a marriage for various reasons. First, MNK did not adduce cogent evidence to demonstrate he had been married to MNK; he confirmed in his own testimony that he had a first wife and MNK was allegedly his second wife. POM also confirmed that he had not paid dowry for the appellant. The court therefore found that his cohabitation with the MNK was not sufficient to prove a marriage and the Court of Appeal erred in presuming a marriage between the parties.  The court elaborated on the strict parameters within which a presumption of marriage could be made were:

  1. the parties must have lived together for a long period of 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 was on the party who alleged it.
  7. The evidence to rebut the presumption had to be strong, distinct, satisfactory, and conclusive.
  8. The standard of proof was on a balance of probabilities.

Having found that MNK did not have capacity to marry; the long cohabitation was not deemed marriage and the doctrine of presumption of marriage was not applicable, the court did not deal with the issue of proprietary interests arising out of intimate relationships formed through long cohabitation.

Accordingly, the court was of the view that ordinary laws governing property rights between strangers was applicable. It therefore proceeded to quantify the beneficial interest due to the parties based on their direct financial contribution to the acquisition of the suit property while acknowledging other forms of non-monetary contribution to the property such as actions of the parties in maintaining and improving the property. In the end, POM was granted 30% while MNK was granted 70% share.

ISLA’s Intervention in the appeal

Admitted as amicus curiae on 19 May 2022, ISLA made submissions to the court on the need for the recognition and protection of cohabitation relationships as family forming unions.  ISLA demonstrated to the Court that families are formed differently and there are instances where parties have voluntarily lived together for a long period of time, with neither a marriage nor intention to marry, but proceed to acquire property together, therefore there was needed to recognize and accord protection to such parties.

ISLA submitted to the court on its obligation to develop and extend the application of Article 45 of the Constitution and the right to equality to the property rights of parties in cohabitation unions; in order to ensure equitable share of property acquired jointly, during the subsistence of an unrecognized or unregistered union arising out of long cohabitation.  

The Supreme Court in its findings agreed with ISLA on the issue of parties being capable of cohabitating for a long period of time with the express intention that their cohabitation neither constitutes a marriage nor ought to be presumed as a marriage. In this regard, the Supreme Court observed that:  

Marriage is an institution that has traditional, religious, economic, social and cultural meaning for many Kenyans. 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 Court recognizes that there exist 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.”

The Court, to this end, found that interdependent relationships outside marriage over the past few decades have become so pervasive and that no inferences about marital status can be drawn from living under the same roof. The impact of this is therefore the acknowledgement of the fact that families are formed differently even through unions that are not registered or recognized by law, but which function as family forming unions are in need of recognition and protection by the law.

Further, and on the recommendation made by ISLA, the Court recognized the current lacuna in the legislative framework to recognize and protect the rights and interests of parties in family forming unions arising out of cohabitation relationships that do not amount to a marriage. As a result, the Court called upon Parliament in collaboration with the Attorney General to formulate and enact a statute that deals with cohabitees in a long-term relationship, their rights and obligations.


The Supreme Court decision speaks to the lived realities of many women today, who enter into cohabiting relationships or other unregistered unions without the intention of a marriage and who often have found themselves without legal recourse in claiming a share of property when such unions break down or come to an end.

While this judgment is welcomed and is important to the development of the law on the basis that the Supreme Court called upon Parliament to formulate and enact statute law that dealt with cohabitees in long-term relationships; their rights, and obligations; there was remiss in the court’s decision as it was left for Parliament to decide how the law would look like.  The Supreme Court ought to have set out to develop guidelines that the proposed new legislative framework will take into account when seeking to determine whether a cohabiting relationship exists and the consequences of the existence of such a relationship.

One of the obligations of strategic litigation is to remove legal uncertainty. This is one of those cases the amicus would have gone further to help the court set out the key considerations of what a law protecting the interests and rights of cohabitees would have in order to ensure equitable share of property acquired during the subsistence of cohabitation relationship so as to provide guidance to parliament when it finally set out to enact the required law.

Further, despite the court acknowledging the lacuna in law, it failed to cure the lacuna of what ought to happen in the meantime as Parliament is undertaking its legislative mandate. It is not lost that the court set out clearly the strict parameters within which a presumption of marriage could be made. When such a presumption is made, then the court proceeds to divide the matrimonial property in accordance with the existing law set out in the Matrimonial Proceedings Act.

The issue the court failed to address is on what ought to happen in the meantime to protect parties to a cohabitation in case of a dispute relating to property acquired during the subsistence of such a cohabitation given that there is no law in that regard. Sadly, the lacuna continues to create legal uncertainity.

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[1] Repealed by the Matrimonial Proceedings Act of 2014.

[2] A statute of general application imported into Kenya by the colonial master by virtue of the reception clause found at section 3(1) of the Judicature Act of 1967. The effect of the that reception clause was to import into the Kenyan legal systems a spectrum of laws that were in force in England as of 1897 when Kenya became a British protectorate.