PRESUMPTION OF MARRIAGE

The Black's Law Dictionary defines 'presumption' as 'a legal inference or assumption that a
fact exists based on the known or proven existence of some other fact or group of facts'.
If a man and woman cohabit and hold themselves out as husband and wife, this in itself raises
a presumption that they are legally married and when it is challenged, the burden lies on those
challenging it to prove that there was in fact no marriage, and not upon those who rely on it to
prove that it was solemnized.” (Own emphasis)

Court of Appeal in Joseis Wanjiru v Kabui Ndegwa Kabui & another [2014] eKLR the
presumption of marriage is a presumption of fact. The Blacks’ law Dictionary states that a
presumption of fact is ' A presumption that may be, but as a matter of law need not be
drawn from another established fact or group of facts.

The doctrine of presumption of marriage has a statutory foundation, in section 119 of the
Evidence Act, Cap 80, Laws of Kenya, where it is provided that ‘the court may presume the
existence of any fact which it thinks 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.”

HALSBURY’S LAWS OF ENGLAND 3RD EDITION VOL. 19 PAR 1323 says: -

“Presumption from Cohabitation
Where a man and woman have cohabited for such a length of time and in such circumstances as
to have acquired the reputation of being man and wife, a lawful marriage between them will
generally be presumed, though there may be no positive evidence of any marriage having taken
place and the presumption can only be rebutted only by strong and weighty evidence to the
contrary”.
When such a position is challenged, the burden lies on those challenging it to prove that there
was in fact no marriage, and not upon those who rely on it to prove that it was solemnized.”

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Under Section 2 of the Marriage Act, to, “cohabit” means to live in an arrangement in which an
unmarried couple lives together in a long-term relationship that resembles a marriage. This is the
definition I wish to go with. Under Black's Law Dictionary, a 'marriage by habit and repute' is
defined as an irregular marriage created by cohabitation that implies mutual agreement to be
married.

The Court of Appeal in Phylis Njoki Karanja & 2 others v Rosemary Mueni Karanja &
another [2009] eKLR held that the presumption of marriage could be drawn from long
cohabitation and acts of general repute. It held as follows: -

“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 in the
nature of an assumption it is not imperative that certain customary rites be performed” (own
emphasis)
In cohabitation, two essentials must be present, the legal capacity to contract a marriage and
consent. The Court of Appeal in P K A v M S A [2014] eKLR adopted the decision in the case
of HORTENSIAH WANJIKU YAWE V PUBLIC TRUSTEES EACA C.A. NO. 13 OF
1976 (UR) where Mustafa J.A. Held that: -
“...long cohabitation as man and wife gives rise to a presumption of marriage ...only
cogent evidence to the contrary can rebut such a presumption”
and Wambuzi P stated the following: -
“The presumption is nothing more than an assumption rising out of long cohabitation
and general repute that the parties must be married irrespective of the nature of the
marriage actually contracted.”

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Mary Njoki V. John Kinyanjui Mutheru & Others CA 71 OF 194
Mary Njoki was a girlfriend of the deceased since her university days and his at the school of
law. They were to be seen together during the holidays. He would save some money from his
allowance and send to her at campus. After their graduation they lived together at different
places and then the deceased expired. Njoki sought a share of the deceased estate. This move
was opposed by the deceased’s brothers who argued that she was not a wife. The court held that
the presumption of marriage could not be upheld here. The judges stressed the need for
quantitative and qualitative cohabitation. Long and having substance. They gave examples as in
having children together, buying property together which would move a relationship from the
realm of concubinage to marriage.

Aronegary V. Sembecutty
It was held that where it is proved that a man and a woman have gone through a form of
marriage, the law will presume unless the contrary be proved, that they were living together in
consequence of a valid marriage and not in a state of concubinage.
Case V. Ruguru [1970] E.A. 55
Where the Plaintiff a white man was cohabitating with the defendant after a while the
relationship became sour. It was alleged that the plaintiff sued for eviction of the Defendant on
trespass and to his defence the Plaintiff called evidence that he had actually been married to a
white woman in 1996 and the marriage had not been dissolved. He admitted having lived with
the Defendant for sometime and having paid Kshs 3,000/= as dowry. Evidence showed that
Kshs 3,000/= was not dowry and that no ram had been slaughtered as required by customs. The
court held that as a mere licensee the Defendant was liable for eviction for trespass.

HOTTENSIAH WANJIKU YAWE V. PUBLIC TRUSTEE C. A. 13 of 76

Yawe, a person from Uganda resident in Nairobi was killed in a road accident in Uganda in
1972. He was a pilot with East African Airways and lived in Nairobi West. After his death, the
Appellant Wanjiku claimed to be his widow and claimed that she had 4 children. Some Ugandan
claimants however denied that she was his wife and that the deceased was not married. Evidence
was called which showed that the deceased lived with the Appellant as a wife and also when he

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applied for a job he had named the Appellant as a wife and the two were reputed as man and wife
and cohabited as man and wife for over 9 years.
The Court held that long cohabitation as man and wife gives rise to presumption of marriage and
only cogent evidence to the contrary could rebut such a presumption.
Mustafa J.A. said: -
“The position seems to me to be this. The appellant had testified that she was married to the
deceased, and the deceased in an application in 1966 had stated that the appellant was his wife.
By general repute and in fact the parties had cohabited as man and wife in a matrimonial home
for over 9 years before the deceased died…and during that time the appellant bore him four
children… long cohabitation as man and wife gives rise to a presumption of marriage in favour
of the appellant only cogent evidence to the contrary can rebut such a presumption…such a
presumption carries considerable weight in the assessment of evidence. Once that factor is put
into the balance into the appellant’s favor the scale must tilt in the direction.. Even if the proper
ceremonial rituals were not carried out that would not invalidate the marriage.”

KIZITO CHARLES MORAA V. MRS MARY ROSE VERNOUR ALIAS ROSEMARY

MORAA. C.A. NO. 61 OF 1984.

The Appellant sued for trespass and various acts of nuisance and a declaration that the
Respondent was never his wife. The Respondent had been married to a Mr. Vernour who had
fathered one of her children and they had gotten married in a marriage of convenience. She had
been a headmistress and a pregnancy would have embarrassed her. Mr Vernour left for England
whereupon she moved to stay with the Appellant for 4 years and had 3 children. Trouble started
when they had a mentally retarded child. It was argued in court on her behalf that a presumption
of marriage be held. The court held that no marriage could be held and the marriage between her
and Mr Vernour had not been over, she had no capacity to marry and her cohabitation was
adulterous which had unfortunately brought forth children.

Christopher Nderi Gathambo & Samuel Muthui Munene.. vs Samuel Muthui Munene[2003] eklr
Compulsory Reading :

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COHABITATION
Prof. Bromley in his book BROMLEY’S FAMILY LAW 8TH EDITION says all about
cohabitation in England, and I think this applies to what obtains here in Kenya as well under;
“Marriage and extra-marital cohabitation, He says there are a number of couples living
together outside marriage one in ten cohabiting couples who were not married.
And he says the reasons for this are that -
“some cannot marry because one of them is in the process of obtaining a divorce (or is unable to
do so). Some wish to avoid the financial responsibilities attached to marriage. Others wish to
postpone the assumption of the legal incidents of marriage and regard cohabitation as a form of
trial marriage or merely ‘a pre-marital experience’. Some regard marriage as irrelevant and many
cohabit because they reject ‘the traditional marriage contract and the assumption of the roles
which necessarily seem to go with it”
The practice is widespread and is evolving. Previously, extra marital cohabitation

R L A v F O & another [2015[] eKLR (Compulsory Read)

It would seem that marriage by long cohabitation is not recognized under that Act. Does this
however, do away with those relationships where couples have lived together as man and wife
for years even whose relationships have ended up with children? I do not think so. This principle
has been applied by our Kenyan courts notwithstanding the existence of marriage statutes.
Accordingly, even with the repeal of the previous seven (7) Marriage Statutes and enactment of
the Marriage Act, 2014, the principle is still good law as was in 1976.

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