In a landmark judgement, the Supreme Court of Kenya has ruled on the division of matrimonial property between Mary Nyambura Kangara, also known as Mary Nyambura Paul, and Paul Ogari Mayaka.
The case, which originated in the High Court, saw Mayaka invoke the repealed Married Women’s Property Act of 1882 and seek division of a property known as Dagoretti/Riruta/xxx, which he claimed he had acquired and maintained with Kangara during their long cohabitation from 1986 to 2011.
The High Court initially dismissed the claim for division of the property, holding that the relationship between Kangara and Mayaka and the resulting cohabitation could not be presumed to be a marriage.
However, on appeal, the Court of Appeal held that there was a presumption of marriage between the two parties and proceeded to apportion the property into two halves, a share for each party.
The Supreme Court, in consideration of a further appeal, made a finding that the Marriage Act of 2014 and the Matrimonial Property Act of 2013 were not applicable in this matter, as the cause of action arose before the statutes were enacted into law.
“The Supreme Court in consideration of a further appeal has made a finding that the Marriage Act,2014 and the Matrimonial Property Act, Act No. 49 of 2013 were not applicable in this matter, as the cause of action arose before the statutes were enacted into law.
However, the now-repealed Married Women’s Property Act may apply to all marriages recognized and unrecognized in law,” the court ruled.
The Court also made a finding that presumption of a marriage is the exception rather than the rule and that the circumstances in which a presumption of marriage can be upheld are limited.
Drawing from the submissions of the parties, the Supreme Court found no marriage can be presumed between Kangara and Mayaka. However, the Court determined that there was a common intention of the parties at the time of purchase of the property that gave rise to a constructive trust between them. Since they both contributed to the acquisition, improvement and maintenance of the property, the Court apportioned the property at the ratio of 70% to Kangara and 30% to Mayaka.
This judgement sets a precedent for future cases involving the division of matrimonial property in Kenya, particularly in cases where a presumption of marriage cannot be made.
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