The Supreme Court is set to hear and determine the legality of the come-we-stay union following a decade-old dispute involving a Nairobi “landlady” and her “agent”.
The court’s judges will also determine whether the doctrine of presumption of marriage is a good law and whether property acquired during intimate relationships can be said to be matrimonial. In addition, the court will determine how properties acquired by come-we-stay and unregistered couples should be distributed upon dissolution of the union and whether the principle of equitable sharing is applicable.
After sitting on June 14, the apex court will also determine the legal basis for the protection of cohabitation and division of property upon dissolution of family formed from cohabitation, unrecognised marriages or other unregistered unions.
Ahead of the hearing, the court has allowed a non-government organisation, Initiative for Strategic Litigation in Africa, to participate in the case as amicus curiae (friend of court). The group works within the African human rights system to advance the rights of women during and at the dissolution of marriage. It also runs a programme on the development of family law.
The group will assist court in determining the basis of the legal protection that the state should accord to all families, including those arising out of cohabitation or unrecognised marriages.
“This would protect families despite the manner in which they are formed and affirm that members have rights during and at dissolution,” said the group in its request for joinder.
It will also highlight the application of the right to equality and the gendered impact of division of property in different intimate relationships. Allowing the request, the court said the group has substantial knowledge and experience in family law matters.
“The essence of the dispute turns around property acquired during cohabitation in a marriage not recognised by law and whether proceedings on the sharing of property acquired under such unions may be brought under the Married Women’s Property Act. We perceive from the applicant’s amicus brief that its submissions will be of valuable assistance to this court in addressing this issue and the applicant has demonstrated expertise in its field relevant to this court,” said the court.
The judges tasked with dealing with the case include Deputy Chief Justice Philomena Mwilu and justices Smokin Wanjala, Njoki Ndung’u, Isaac Lenaola and William Ouko.
The case springs from a suit filed by a woman, Mary Nyambura Kangara, concerning a long cohabitation of 26 years she had with a man she said was not her husband but her “agent for rent collection”. Her petition also concerns the presumption of her marriage to the man named Paul Ogari Mayaka and property acquired during the cohabitation.
She moved to the Supreme Court after the Court of Appeal presumed existence of a marriage between her and the man and ordered “her” property be halved for each party. The suit property is in Dagoretti/Riruta.
The case started at the High Court in 2012 after Mr Mayaka sued over ownership of the property. They met in 1986 and cohabited as husband and wife up to 2011. Each was by then earning a living and they jointly saved enough and purchased the suit property—a quarter of an acre.
Conflict started when Mr Mayaka requested Ms Nyambura that they allocate one bedroom on a permanent basis to his son from another marriage who was finishing college, as they had allocated one to Ms Nyambura’s son from her earlier marriage.
It is on this basis that Mr Mayaka moved to the High Court for the orders declaring that the property, including a three-floor building, was acquired and developed through joint funds and efforts during their marriage. He also sought an order for equal subdivision of the property.
However, Justice William Musyoka on June 9, 2017, found that Ms Nyambura was at the material time married to another man and had no capacity in law to be married to Mr Mayaka. He found that the relationship between the two was an adulterous one and cohabitation could not result in a marriage known to any law.
Those findings were reversed on appeal lodged by Mr Mayaka. Justices Phillip Waki, Patriack Kiage and Fatuma Sichale on January 25, 2019, held that Mr Mayaka proved his case to entitle him to an order that the suit property was acquired and developed during the substance of marriage through joint efforts. The appellate judges found there was no evidence Ms Nyambura was married to another man during her relationship with Mr Mayaka.
In her evidence, Ms Nyambura denied marrying Mr Mayaka. She averred that she was married to one Mr Kangara, from whom she separated in 1987. Kangara had paid dowry in the 1980s, the court heard. She agreed to cohabiting with Mr Mayaka for some time after separating with Mr Kangara but contended she did not have the capacity to contract a subsequent marriage as she had not divorced Kangara until his death in 2011. She submitted that Mr Mayaka was her agent who sold water within the premises, having a butchery and a bar.
That some utilities’ bills were, therefore, registered in his name for the premises he had rented. She denied Mr Mayaka’s claim that the suit property was matrimonial and maintained that she was the sole owner.
She said Mr Mayaka having been registered for electricity supply to the premises and payment of bills did not make him an owner and “any activity performed by him regarding the suit property was performed on her behalf as a friend/agent and not as a husband or a joint owner.”
Ms Nyambura urged that she had purchased the suit property by herself and that the name Paul appearing amongst her names on the property’s title document, referred to her father who was christened as Paul in the year 1979.
Having perused the record and had regard to the evidence presented by Mr Mayaka and his witnesses, the court of appeal said the picture that emerged clearly was that the purchase of the suit property as well as the putting up of the buildings was the joint effort of him and Ms Nyambura.
“Even though the sale agreement was between the seller Hellen Wanja Muthora and Ms Nyambura, the true buyer was Mr Mayaka but it was convenient to have it in her name due to the fact that he was not a Kikuyu,” said the appellate judges.
A witness, Joseph Karinga Muthiori, testified that his family had resolved to sell land to Kikuyus only and that it was for that reason Mr Mayaka, whom they knew as the buyer, was buying it in the name of Ms Nyambura.
Mr Muthiori said they took Ms Nyambura to be his wife as the two had cohabited as such from 1991. He recounted how at one point Mr Mayaka had referred them to the local chief for delaying to avail title deed to the suit property.
Another witness, John Ngaruiya Kamau, a neighbour, who bought a plot after the suit property was purchased told court that he knew Mr Mayaka and Ms Nyambura to be husband and wife who lived together as such.
They even approached him together to ask for an access road. It is at their plot where she and other neighbours would meet to load materials for construction of a sewer.