REFLECTIONS ON THE DECISION OF THE SUPREME COURT OF KENYA IN PETITION NO. 9 OF 2021 MARY NYAMBURA KANGARA -VS- PAUL OGARI MAYAKA & ISLA

INTRODUCTION

In the recent case of Mary Nyambura Kangara alias Mary Nyambura Paul -vs- Paul Ogari Mayaka & Initiative for Strategic Litigation in Africa [2023] eKLR, the Supreme Court of Kenya was tasked with determining 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, 1882 and if so, upon what basis would this be done? This was a crucial determination regarding Mr. Ogari’s claim for the division of matrimonial property.

Mr. Ogari had claimed Ms. Nyambura to be his wife on the basis of cohabitation thus entitling him to a share of the property acquired during their "marriage". Ms. Nyambura vehemently denied being married to Mr. Ogari stating instead that her relationship with Mr. Ogari was merely one of "friendship" and "employment".

This article seeks to analyze the decision of the Supreme Court in the instant petition and will concentrate on how the Judges arrived at the verdict to divide the matrimonial property between the warring couple. The Supreme Court’s rationale in its judgment of ruling against a presumption of marriage and instead considering the parties as "strangers" thereby apportioning their respective beneficial interests in the property is what is particularly important. In essence, was the decision a win-win for both sides? It’s time to find out.

REVIEW OF THE SUPREME COURT DECISION IN PETITION NO. 9 OF 2021

The Facts

The brief facts as distilled by the Supreme Court were such that Mr. Ogari and Ms. Nyambura began to cohabit as husband and wife sometime in 1986, after which they jointly acquired property, a parcel of land in Dagoretti that was registered in Ms. Nyambura’s name. They subsequently developed the property by constructing rental units thereon, one of which acted as the parties’ matrimonial home.

While denying being married to Mr. Ogari and his involvement in the acquisition of the said property, Ms. Nyambura stated that she was already married to somebody else under customary law hence lacking the capacity to contract another marriage and that she only allowed Mr. Ogari to manage the property as an agent because they were friends. The parties’ relationship consequently broke down in 2011 when Ms. Nyambura evicted Mr. Ogari from the matrimonial home.

The History

1. A Win for Ms. Nyambura at the High Court

In 2012, Mr. Ogari instituted a suit at the High Court in Civil Suit No. 6 of 2012 POM -vs- MNK claiming Ms. Nyambura to be his wife and invoking the provisions of Section 17 of the Married Women’s Property Act, 1882 (hereinafter the ‘MWPA’) on the claim for division of matrimonial property. The High Court dismissed the suit in 2017 on the basis that the principle of presumption of marriage was inapplicable in the circumstances as Ms. Nyambura was already married to somebody else before and therefore did not have the capacity to marry Mr. Ogari.

2. A Win for Mr. Ogari at the Court of Appeal

Mr. Ogari subsequently filed an appeal against the decision of the High Court in Civil Appeal No. 343 of 2017 challenging the High Court’s findings on Ms. Naymabura’s marriage to somebody else and declining to deal with the property acquired during the parties’ cohabitation despite Ms. Nyambura’s marriage to somebody else. The Court of Appeal allowed the appeal on the basis that there was long cohabitation and thus presumed the existence of a marriage between the parties, which legally entitled Mr. Ogari to an equal share of the property.

3. A Win-Win Situation at the Supreme Court

Ms. Nyambura sought certification and leave to appeal the decision of the Court of Appeal to the Supreme Court on grounds that her matter was of general public importance. The Court of Appeal denied the application for leave to appeal holding that there were no issues raised meeting the standard set by the Supreme Court in Hermanus Phillipus Steyn -vs- Giovanni Gnecchi-Ruscone [2013] eKLR on what amounts to a matter of general public importance. Upon seeking a review of the Court of Appeal’s ruling on certification in Sup. Civil Application No. 5 of 2020, the Supreme Court granted Ms. Naymbura a review of the certification and granted her leave to file the respective appeal.

The Issues

The Supreme Court considered the following two inter-linked issues to be pertinent for determination:

1. Firstly, 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?
2. Secondly, what relief is available to the present parties?

The Findings

1. Application of the MWPA

Ms. Nyambura argued that the existence of a marriage recognized in law remains the central status that grants a party locus standi under Section 17 of the MWPA. Mr. Ogari argued that the correct interpretation of the term marriage in the MWPA should be that it applies to all marriages recognized or unrecognized in law. The Court agreed with Mr. Ogari to find that the MWPA applies to all marriages recognized or unrecognized in law.

2. Relationship of the Parties

Ms. Nyambura 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 Mr. Ogari to be presumed a marriage as she was already married to somebody else. While the Supreme Court agreed with both the High Court and the Court of Appeal that there was long cohabitation between the parties, the Supreme Court found that the Court of Appeal erred in presuming a marriage between the parties and instead agreed with the High Court that the relationship between the parties and the resulting cohabitation cannot be deemed to have brought forth a marriage.

3. Presumption of Marriage

The Supreme Court noted from the record that Mr. Ogari instituted the suit claiming to be the husband of Ms. Nyambura, which assertion was vehemently denied by Ms. Nyambura who claimed to be married to another man and known by his name. Ms. Nyambura further contended that a long-term relationship that resembles a marriage is not a marriage and that the person who alleges the existence of such a marriage must prove it. Whilst noting that the presumption of marriage is the exception rather than the rule, the Court found that circumstances in which a presumption of marriage can be upheld are limited and consequently ruled that a presumption of marriage cannot apply in the instant case.

4. Parties’ Proprietary Rights

Mr. Ogari stated that he had jointly contributed to the property’s acquisition, building and development with utility bills even being registered in his own name. Ms. Nyambura on the other hand stated that she had only allocated Mr. Ogari a shop to operate his business and that she had also appointed him as an agent for purposes of rent collection. The Court found that the two parties contributed to the acquisition and development of the property that led to their proprietary rights, which arose out of a constructive trust. The Supreme Court reiterated that the parties’ common intention at the time of the purchase of the property gave rise to a constructive trust between Ms. Nyambura and Mr. Ogari.

5. Division of Matrimonial Property

The Supreme Court established that there was a common intention for Ms. Nyambura and Mr. Ogari to have beneficial interests in the property. The Court further agreed with Mr. Ogari’s submissions to the extent that the property was acquired and developed through joint efforts and/or contribution of the parties and thus made a finding that the share of the parties to be apportioned as 70% for Ms. Nyambura and 30% for Mr. Ogari based on their respective contributions.

The Decision

The appeal partially succeeded with the Supreme Court concluding that while a presumption of marriage between the parties does not exist, both parties had a beneficial interest in the property thus allocating a share of 70% to Ms. Nyambura and 30% to Mr. Ogari.

REFLECTIONS ON THE SUPREME COURT DECISION IN PETITION NO. 9 OF 2021

The following are the key takeaways from the decision of the Supreme Court in Petition No. 9 of 2021:

1. Recognition of the Traditional, Religious, Economic, Social and Cultural Significance of the Institution of Marriage

The Supreme Court pointed out that the institution of marriage has traditional, religious, economic, social, and cultural connotations. Though the Supreme Court maintained that the doctrine of presumption of marriage is close to extinction based on the developments in Kenya’s marital laws, the Judges took the liberty to set out the strict parameters upon which a presumption of marriage can be made to be as follows:

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 is on the party who alleges it.
7. The evidence to rebut the presumption has to be strong, distinct, satisfactory and conclusive.
8. The standard of proof is on a balance of probabilities.

2. Recognition of Existing Cohabitation Relationships with no Intention to Contract Marriage

The Supreme Court acknowledged that there are relationships in which parties live together without having any intention of becoming married and in such situations, the couples may decide to live together in interdependent relationships rather than get married. The Court further noted that the concept of interdependent relationships is not new, referring to the Adult Interdependent Relationships Act, 2003 in Alberta, Canada which gives rights and obligations to couples in qualifying long-term relationships.

3. Recognition of the Need to Protect Parties’ Proprietary Rights in Cohabitation Relationships

The Supreme Court took cognizance of the fact that the lack of laws protecting cohabiting parties in the event of a dispute over property acquired during the course of such cohabitation is a problem in many jurisdictions, including Kenya. Yet, because so many individuals choose to cohabitate and end up acquiring properties in the process, there is no express law that governs how property is to be divided when such a couple separates. This is because cohabiting spouses are not covered by the law that allows courts to divide or transfer beneficial interests in matrimonial properties after a divorce.

CONCLUSION

Whilst the Supreme Court’s decision provides a welcome clarification on claims for the division of matrimonial property by parties to a marriage, recognized or unrecognized in law, it has still left a number of unanswered questions in relation to property disputes by couples in long-term relationships. For instance, how do we legally define the relationship that subsists between couples in a long-term relationship that is neither marriage nor cohabitation relationship, as was the case in the instant petition? Further, how are property disputes to be determined regarding the division of property between couples in long-term relationships with no intention of contracting marriage?

From the Judgment of the Supreme Court, the property dispute between the parties seems to have been resolved by considering the parties as “strangers” and thus applying the ordinary legal rules applicable to imposing a constructive trust and quantifying the parties’ beneficial interest based on direct monetary contribution to the acquisition of the property and recognizing their non-monetary contribution based on maintenance and improvement of the property. That notwithstanding, the Supreme Court appreciated the ambiguity and difficulty of assigning monetary value to a party’s contribution in such a relationship.

It will therefore be interesting to see whether there will be any changes in the current legal landscape to address the pertinent issues of matrimonial property raised by the instant petition. In the meantime, it remains to be seen whether the anxiety-ridden modern dating landscape will change in light of this decision. I mean, have you actually considered whether you are really ‘married’, ‘cohabiting’ or just in a ‘long-term’ relationship with your significant other? Think about it.

RECOMMENDATIONS

The Supreme Court’s decision in Petition No. 9 of 2021 raises valid points of deliberation where the following recommendations would be a welcome reprieve for couples in long-term relationships:

1. The fact that marriage is a consensual relationship means that the Courts should avoid forcing a “marriage” on those who are not ready for it through the common law doctrine of presumption of marriage.
2. Parliament should draft and adopt appropriate statute legislation that addresses the rights and duties of couples in qualifying long-term relationships with no intention to contract a marriage.
3. Government should perhaps consider adopting a systematic policy approach towards the recognition of couples in an adult relationship of interdependence due to the accrual of rights, privileges, and obligations under other laws.