Court upholds ‘marriage by cohabitation’ in property dispute

The High Court in Voi has upheld a magistrate’s ruling that recognised a long-term cohabiting relationship as a marriage, granting a woman rights to property acquired during their union.

The case involved a woman identified as JLM and a man identified as WMG, who began living together in 2003.

In a judgment delivered on May 30, Justice Asenath Ongeri ruled that the couple’s extended cohabitation, shared intention to marry, and public presentation as husband and wife amounted to a valid presumption of marriage.

“I find that the respondent sufficiently proved, on a balance of probabilities, that a presumption of marriage existed between herself and the appellant based on their prolonged cohabitation, mutual intention to marry, and public acknowledgment as husband and wife,” the judge stated.

The court held that the land, a vehicle, and household items in question constituted matrimonial property under the Matrimonial Property Act, 2013.

Justice Ongeri found that the couple had acquired and developed the assets together during the time they lived as partners.

JLM had initially filed the case at the Taveta Law Courts in 2020, seeking a declaration that her relationship with WMG qualified as a marriage.

She also asked the court to declare her right to live in their shared home without interference and to bar WMG from harassing or threatening her.

“I pray for a permanent injunction restraining WMG, whether by himself, his agents, or servants, from intimidating, threatening, or harassing me in any manner whatsoever,” she told the court.

She testified that their relationship began in 2003 and they started living together in 2005, residing in different towns including Mombasa, Nairobi and Taveta. She said the disputed properties were all acquired while they were living as a couple.

WMG, however, denied being married to JLM and described their relationship as a “simple relationship” with no intention of marriage.

He claimed they started cohabiting in 2010 and lived together until 2021, when JLM found out about his other romantic relationship.

Despite WMG’s claims, the magistrate found evidence that he considered JLM his first wife and referred to the other woman as his second.

Magistrate D.M. Ndungi ruled in favour of JLM, stating that even if cohabitation started in 2010, the length and nature of the relationship still supported a presumption of marriage.

The magistrate also noted both parties had the legal capacity and intention to marry and had portrayed themselves publicly as husband and wife until their separation.

Unhappy with the ruling, WMG appealed, arguing the magistrate was wrong to find a presumption of marriage.

He said there was no proof that the properties were jointly acquired and maintained that JLM had not contributed financially. He also claimed he built the disputed house before they met.

JLM countered this by testifying that she had built a two-bedroom house on the land and provided photographs as evidence.

After re-evaluating the case, Justice Ongeri dismissed the appeal. “Consequently, this appeal is hereby dismissed in its entirety. The judgment of the trial court is upheld. The respondent (JLM) shall have the costs of this appeal,” she ruled.