On 27 January 2023, the Supreme Court of Kenya (SCOK) delivered two judgements with far reaching implications on marriage in Kenya. More precisely, the court’s decisions addressed disputes that arise long after Cupid has left the room, and matrimony crumbles. A keen appreciation of the court’s decisions reveals that not only did the SCOK play its conventional role of resolving disputes and guiding lower courts on how to resolve similar tussles in the future, it went further to offer subtle take-aways on how to marry securely in Kenya. 

In Ogentoto V Ogentoto,  the court assessed the appeal to amongst other things, majorly concern “the mode of distribution of property acquired during a marriage… ”.  Kenya’s highest court resolved that the constitutional prescription stating that parties to a marriage have equal rights during and after a marriage did not mean that property acquired during the marriage should automatically be shared on a 50-50 parity after the acrimonious ending of the marriage. Specifically, Article 45 (3) of the Constitution of Kenya 2010 provides that “Parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage.” 

Inasmuch as the court dismissed this particular appeal and agreed with the Court of Appeal’s (COA) decision that the parties to this suit should divide the property acquired during matrimony on a 50-50 basis, it went further to guide that this specific decision was arrived at through the case’s unique circumstances. As mentioned above, the apex court however declared that the 50-50 metric was not the gold standard. The Supreme Court guided that when similar disputes are taken to court in future, subordinate courts should approach them from the position that each party should walk away with what it authentically contributed. If 50-50, well and good. 

In an attempt to measure this decision within the scope of transformative constitutionalism, in Equality in Marriage and the Limits of Transformative Constitutionalism: The Kenyan Supreme Court’s Judgment in Ogentoto vs Ogentoto, Ghautam Bhatia, penning his opinion hot on the heels of the decision, not only showed how it attracted international attention, but also exposed the court’s cryptic reasoning.  

Ghautam argued that inasmuch as it knocked out the 50-50 algorithm, its reasoning which appreciated  “two Canadian judgments…” which benchmarked the 50-50 formulation – in addition to it eventually arriving at the same position – inadvertently led back to the nusu-nusu (half-half) basis.  He concluded that in some way, the jury was still out on what the SCOK really meant and how this affected the unpacking of the judgement in days ahead. He wrote – “There will also be parallel struggles about the very definition of what constitutes marital property…And it will probably be in the future interpretation of today’s Supreme Court judgment in concrete family law disputes – that the interface between equality, marriage, and transformative constitutionalism in Kenya will play out.” 

In Mary Nyambura Kangara vs Paul Ogari Mayaka, the court examined the doctrine of presumption of marriage. Popularly known as ‘come we stay/try’ unions, or common law marriages, where parties cohabit or live together without solemnising such arrangements through ceremony and/or certification; these unions abound in Kenya. 

Emanating from another post-marriage tussle for division of property, in this second case, the questions of whether parties to the suit were truly married and how the property they purportedly acquired together during their ‘marriage’ was to be divided, were considered. The SCOK framed the issues as “Whether parties to a union arising out of cohabitation and/or in a marriage unrecognised by law can file proceedings under the Married Women’s Property Act? And if so, upon what basis would this be done?” 

Caught between the dilemma of promoting a living arrangement shunned by the law, in that the Marriage Act 2014 does not recognise cohabitation as marriage (it recognises Christian, civil, Muslim, Hindu, and customary marriages) and burying its head in the sand by pretending to ignore a prevalent and growing social phenomenon for the sake of settling disputes arising from the unravelling of such unions (and protecting the rights of  parties), the SCOK demarcated circumstances within which such arrangements may with exception, be entertained in court, suggesting how in the future property rights of parties may be protected. The SCOK reasoned that by dint of matrimonial laws prevailing in Kenya,  ‘come we stays’ were formally kaput. Underscoring this point, the SCOK stated – “…we are of the view that the doctrine of presumption of marriage is on its deathbed of which reasoning is reinforced by the changes to the matrimonial laws in Kenya. As such the presumption should only be used sparingly where there is cogent evidence to buttress it.” 

Using its precedent setting powers, and fortifying its emphasised conclusion that “a presumption of marriage is the exception rather than the rule“, the SCOK presented eight “strict parameters within which a presumption of marriage can be made….” These include the fact that “parties must have lived together for a long period of time [unfortunately not categorically prescribed]; have the legal right or capacity to marry; have intended to marry; and there must be consent by both parties.” 

In addition to the issues of time, capacity, intention and mutual consent, the SCOK included the important factor of reputation, in that to all and sundry, the impression that a party was married must sustain. To this, it stated that “The parties must have held themselves out to the outside world as being a married couple.” Additionally, the SCOK provided beacons of how courts should deal with evidence concerning such suits. 

Rather trite but for emphasis perhaps, the SCOK provided that “The onus of proving the presumption is on the party who alleges it” and that “The evidence to rebut the presumption has to be strong, distinct, satisfactory and conclusive.” It finally guided that “The standard of proof is on a balance of probabilities.”

As earlier stated, and progressively so, the court took cognisance of the fact that despite the provisions of the law, more Kenyans were choosing to live in what are, in the face of the law, pseudo-marriage arrangements, where couples cohabit without prospects of formalising their marital statuses. To this end, the SCOK pointed out that “This court recognizes that there exists 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.” 

In driving the point home the SCOK added “…in our ever-changing society, current statistics reveal that a man and a woman can choose to cohabit with the express intention that their cohabitation does not constitute a marriage. The pervasiveness of having an interdependent relationship outside marriage (sic) over the past few decades means that no inferences about marital status can be drawn from living under the same roof. ‘Interdependent relationships outside marriage‘ is not a new concept.’’

With the view of protecting couples that choose such living arrangements, and akin to the Canadian province of Alberta that has since 2003 legislatively acknowledged and secured such associations, the SCOK, in its duty towards ensuring that the constitutional principle for the exercise of  judicial authority which states that “justice shall be done to all irrespective of status…” advised Parliament to enact a law that “deals with cohabitees in long-term relationships; their rights and obligations. This would be on the same footing as Alberta’s Adult Interdependent Relationships (AIR) Act. 

Beyond reading between the lines of legalese, the SCOK affirmed the importance and relevance of the institution of marriage to many Kenyans. To this, it stated that “marriage is an institution that has traditional, religious, economic, social and cultural meaning for Kenyans.” With Ghautam Bhatia’s projection that similar to pudding, the proof of what the SCOK pronounced lies in the tasting, it shall remain to be seen whether the court’s words shall leap over the boundaries of legal precedence and the corridors of justice, and animate in the way Kenyans approach marriage in future. 

As such, and as hinted by the SCOK, beyond the spell of Eros, marriage must be purposefully structured and intentioned. In his article, Ghautam  states that marriage is “the very heart of the private sphere….” It is however a public fiction for the management of a private arrangement to the extent that for it to stand, it must be witnessed and performed publicly (beginning, during, ending) and is regulated by law.  This is mostly because of its by-products – children and property, disputes of which cannot be left to the former ‘love-birds’. 

With good fortune, the issue of custody and maintenance of children in or out of marriages is well covered in the Constitution (Article 53) and the Children Act, 2022. Like the Supreme Court observed, there is a yawning gap in how disputes relating to property acquired between parties in pretend marriages, should be solved more because the same are unregulated. 

The take away from the court’s decisions should beyond guiding courts (institutions of last resort), serve as marriage counsel for parties in wedlock – that in the unforeseen circumstance – usually ‘blinded by love’ – that like all other things, marriages end (and in order to assist the courts resolve disputes over property), the keeping of receipts, proper records of transactions and logs of activities should be  de rigueur. Additionally (and mainly because of the absence of protective measures for those in ‘AIRated’ arrangements), regularisation of the same is important. Similarly, that during marriage, it is important to make plans about property, with the mind and not the heart. 

If these are in place,  all shall  rightfully and equally live happily ever after, during and after the marriage, if ever.