Untangling Property Rights in Unrecognized Relationships: An Analysis of the Supreme Court Decision in MNK v POM

The Supreme Court of Kenya’s judgment in MNK v POM; Initiative for Strategic Litigation in Africa (ISLA) (Amicus Curiae) (Petition 9 of 2021) KESC 2 (KLR) (27 January 2023) delivers crucial clarity on property disputes arising from long-term cohabitation relationships not formally recognized as marriage under the law. The case navigated complex issues surrounding the applicability of repealed legislation, the doctrine of presumption of marriage, and the mechanisms available for dividing property acquired during such relationships. This commentary delves into the Court’s reasoning and the implications of its findings.

The dispute originated from a claim filed in the High Court in 2012. The respondent (POM) claimed that the appellant (MNK) was his wife, with whom he had cohabited since 1986. He sought division of property acquired during their relationship, invoking Section 17 of the repealed Married Women’s Property Act, 1882 (MWPA) (repealed). The respondent contended that they jointly purchased a property (the suit property) but, due to tribal considerations, registered it in the appellant’s name, despite both contributing to its acquisition. They developed the property, lived in one unit, and rented out others, with the respondent involved in managing utilities and operating a business on the premises.

The appellant denied being married to the respondent, stating she was already married under customary law to someone else (KM) until his death in 2011, and therefore lacked the capacity to marry the respondent. She argued their relationship was adulterous cohabitation and not a marriage, and that she solely acquired the property.

The High Court dismissed the respondent’s suit, finding long cohabitation but holding that the presumption of marriage was inapplicable because the appellant was married to KM and thus lacked capacity. The court concluded that the relationship was adulterous cohabitation and could not be deemed a marriage. Without proof of marriage, the respondent could not rely on the MWPA (repealed), whose reliefs required proof of marriage.

The Court of Appeal reversed the High Court’s decision. It found that the existence of KM was not proved and presumed the existence of a marriage between the parties. Consequently, the Court of Appeal allowed the appeal and ordered the suit property to be divided equally between the parties (50/50 share).

Aggrieved, the appellant appealed to the Supreme Court. The Supreme Court granted leave to appeal, framing the core issues for determination: i. Whether parties to a union arising out of cohabitation and/or in a marriage unrecognized by law could file proceedings under the Married Women’s Property Act (repealed), and upon what basis. ii. What relief was available to the present parties.

Before delving into these issues, the Supreme Court established that the Marriage Act, 2014 and the Matrimonial Property Act, 2013 were not applicable to the matter. This was because the cause of action arose in 2011 and the suit was filed in 2012, before these statutes were enacted, and they could not be applied retrospectively unless expressly stated or necessarily implied, which was not the case here. The Court’s analysis would therefore rely on the law applicable before 2013.

Applicability of the MWPA (Repealed)

The first issue required the Court to interpret the scope of the MWPA (repealed). The Court noted that this Act, originally enacted in England in 1882 and inherited in Kenya, applied only to “parties to a marriage; husband and wife” and “married women”. However, the Court emphasized that the MWPA (repealed) did not specify how a marriage came to be or was contracted, nor did it distinguish between marriages recognized or unrecognized in law.

Therefore, the Supreme Court held that parties to a union arising out of cohabitation or an unrecognized marriage could file proceedings under the MWPA (repealed) on the basis that the Act applied to all marriages recognized or unrecognized in law. This meant that the crucial preliminary question was whether the parties in the dispute before the Court were, in fact, married in a manner the Act would recognize. This led the Court to consider the doctrine of presumption of marriage.

The Doctrine of Presumption of Marriage

The Supreme Court affirmed that presumption of marriage is a common law principle whereby long cohabitation of a man and woman with a general reputation as husband and wife raises a rebuttable presumption that they have contracted a marriage. This presumption can be rebutted by strong and weighty evidence to the contrary.

The Court traced the application of this doctrine in Kenya, highlighting the significant case of Hortensia Wanjiku Yawe v The Public Trustee Nairobi eKLR. The Court cited the principles distilled from the Yawe decision, as outlined in Mary Njoki v John Kinyanjui Mutheru & 3 Others eKLR:

• The onus of proving a customary law marriage (or presumably, the basis for presumption) is on the party claiming it.
• The standard of proof is on the balance of probabilities.
• Long cohabitation as man and wife gives rise to a presumption of marriage in favour of the party asserting it.
• Only cogent evidence to the contrary can rebut the presumption.
• Performance of specific ceremonies is not imperative for the presumption to arise; cohabitation, habit, and repute can suffice as proof of consent to the relationship.
• A party needs to establish long cohabitation and acts showing general repute, demonstrating the cohabitation has crystallized into a marriage and is not mere friendship or concubinage.

The Court also referenced other cases that had applied or discussed the doctrine, such as Phylis Njoki Karanja & 2 others v Rosemary Mueni Karanja & another eKLR, Mary Wanjiku Githatu v Esther Wanjiru Kiarie eKLR, and CWN v DK eKLR. These cases reiterated that presumption of marriage is a question of fact and law, depending on evidence and circumstances. Crucially, a marriage cannot be presumed if a party lacks the capacity to marry, for instance, by being married under statute. Capacity is a necessary aspect covered by the presumption. During the subsistence of a previous marriage, a party lacks capacity to enter a new marriage, rendering the new union null.

Applying these principles to the facts of MNK v POM, the Supreme Court agreed with the High Court and the Court of Appeal that there had been long cohabitation between the parties. However, the key issue was whether this cohabitation, coupled with repute, was sufficient to raise a presumption of marriage in this case.

The Court paid close attention to the appellant’s assertion that she was married to KM until his death in 2011. The High Court had accepted this evidence, partly based on the appellant’s name “K” appearing on her identity card. The Supreme Court found that the Court of Appeal had erred in disregarding this evidence and agreed with the High Court’s finding that the appellant’s evidence of being married to KM was uncontroverted by the respondent. The appellant’s identity card bearing the name “K” was strong evidence supporting her claim of being married to KM.

Furthermore, the Supreme Court noted that the respondent, who alleged the existence of a marriage, bore the burden of proof under Section 109 of the Evidence Act. The respondent’s own testimony indicated he had a first wife and had not paid dowry for the appellant, weakening his claim of marriage by repute.

Given the uncontroverted evidence of the appellant’s prior marriage to KM, the Supreme Court concluded that the appellant lacked the capacity to contract a marriage with the respondent during most of their cohabitation. Therefore, the relationship could not be deemed to have brought forth a marriage. The Court found that the Court of Appeal had erred in presuming a marriage in this case, as it was not one of the “safe instances” where a marriage could rightly be presumed.

The Supreme Court laid down strict parameters within which a presumption of marriage could be made:

1. Long cohabitation.
2. Legal right or capacity to marry.
3. Intention to marry.
4. Consent by both parties.
5. Holding themselves out as a married couple to the outside world.
6. The onus of proving the presumption is on the party alleging it.
7. Evidence to rebut the presumption must be strong, distinct, satisfactory, and conclusive.
8. The standard of proof is on a balance of probabilities.

Significantly, the Court expressed the view that the doctrine of presumption of marriage is “on its deathbed,” reinforced by changes in matrimonial laws in Kenya. It should be used “sparingly” and only with cogent evidence. The Court acknowledged the reality of modern society where adults may cohabit for long periods with no intention of marrying, perhaps due to prior experiences or a simple desire for an interdependent relationship outside matrimony. Where such intention is absent, the presumption should never be made, as marriage is a voluntary union, and courts should avoid imposing it on unwilling persons. The Court called for the legislature to enact specific statute law dealing with the rights and obligations of cohabitees in long-term relationships.

Property Rights and Constructive Trusts

Having determined that no presumption of marriage existed and thus MWPA remedies were unavailable (as they require a marriage), the Court had to address the second issue: what relief was available to the parties regarding the property acquired during their relationship. The Court of Appeal had found joint contribution and awarded a 50/50 share. The Supreme Court agreed that the High Court erred in failing to determine proprietary rights after rejecting the presumption of marriage.

While the Court disagreed with the Court of Appeal’s finding that the respondent was the true purchaser or the 50/50 division based on insufficient evidence for that specific apportionment, it found that the parties jointly contributed to the acquisition and development of the suit property. These proprietary rights, the Court held, arose out of a constructive trust.

The Court adopted the definition of a constructive trust as the right, enforceable in equity, to the beneficial enjoyment of property legally held by another person. Drawing on foreign jurisprudence, the Court noted that constructive trusts can be imposed or imputed by courts whenever two parties, by their joint efforts, acquire property for their joint benefit. The legal owner holds the property in trust for both. This trust does not require written form and applies to various relationships, including those between a man and a woman cohabiting without marriage. The Court cited the English case of Eves v Eves 1 WLR 1338 and the Australian case of Baumgartner v Baumgartner 164 CLR 137 (referenced via Barker v Linklater & Another QCA 363) to illustrate how joint efforts and contributions (financial and otherwise) towards acquiring and developing property for a joint relationship can give rise to a constructive trust.

The Court acknowledged that Kenya, like many countries, lacks specific laws protecting cohabitees’ property rights. Resolving such disputes using ordinary legal rules applicable to strangers can lead to injustice, particularly for more vulnerable parties or those who contributed less financially. While an interventionist approach (like imposing trusts) can be complex, a laissez-faire approach risks leaving parties unfairly deprived.

Drawing on the English Court of Appeal case Elayne Marian Teresa Oxley v Allan George Hiscock EWCA 546 (which cited Gissing v Gissing AC 886), the Supreme Court outlined the requirements for establishing a constructive trust where property is held in one party’s name but intended as a joint home for a couple. It requires demonstrating a common intention that both parties would have a beneficial interest and that the claimant acted to their detriment based on this intention. Common intention can be proved by direct evidence (express agreement) or inferred from actions. Inferred intention often comes from contributions (direct or indirect) to the property acquisition or improvement. The Court in MNK v POM reiterated that the common intention of the parties at the time of purchase is sufficient to give rise to a constructive trust and can be inferred from conduct beyond just financial contributions.

Applying this, the Supreme Court found that the common intention for both the appellant and respondent to have beneficial interests in the suit property existed at the time of purchase. This intention was inferred from their conduct: they cohabited since 1986, bought the property in 1991 together (with the respondent present at the signing and a witness), lived in a unit on the property from 1993, used rent proceeds for further construction, utilities were in the respondent’s name, he operated a business there, and paid for connections and bills until his eviction in 2011. The appellant’s act of evicting the respondent was seen as contrary to this common intention, resulting in her unjust enrichment.

Finally, in quantifying the beneficial interests, the Court held that it should consider both direct financial contributions and other forms of contribution, such as actions in maintaining and improving the property. Based on the evidence of joint acquisition, construction, and investment over 20 years, the Court apportioned the shares as 70% for the appellant and 30% for the respondent, finding the respondent had proved his case on a balance of probabilities regarding joint efforts/contribution. This reversed the Court of Appeal’s 50/50 division.

Conclusion

The Supreme Court’s decision in MNK v POM is a landmark ruling for unmarried cohabiting couples in Kenya. It clarifies that while the MWPA (repealed) could theoretically apply to any marriage (recognized or not), the success of a claim under it depends on establishing such a union. Crucially, the Court significantly limits the application of the presumption of marriage doctrine, declaring it “on its deathbed” and applicable only sparingly under strict conditions, particularly where capacity to marry is proven and actual intention to marry can be inferred. This reflects the changing societal landscape where cohabitation without matrimonial intent is increasingly common.

Perhaps most importantly, the judgment confirms that even in the absence of a formal or presumed marriage, property acquired during cohabitation relationships can be subject to division based on the principles of constructive trust. The Court provides a clear framework for inferring common intention from the parties’ conduct and considering various forms of contribution (financial and non-financial) when quantifying beneficial interests.

The decision highlights the urgent need for legislative intervention to provide a clearer legal framework for the rights and obligations of cohabitees. Until such legislation is enacted, the Courts will continue to rely on equitable principles like constructive trusts to resolve property disputes, providing a crucial avenue for justice for parties in these increasingly common relationships.

Contribution by Murithi Antony.