Having a child with a man or a woman is not proof of a marriage, the High Court has ruled.
Justice Asenath Ongeri in her verdict surrounding a matrimonial dispute said that even if a man or a woman proves that he or she got a child with the other, the paternity test cannot be the basis of an argument that was married.
In the case, the woman codenamed FCR argued that she cohabited with a man codenamed CAL between 1970 and 1990 and had five children with him.
She asserted that he unceremoniously kicked her out of the matrimonial property, demolished it, and re-married.
To prove that there was a marriage, she asked the court to order the children and man's DNA tested.
While dismissing her case, the judge said that she had not proved the existence of marriage by using the children as evidence.
"The applicant (FCR) applied to the court seeking DNA tests to be conducted to prove the paternity of her five children. I find that proof of paternity is not evidence of a marriage. The fact that a man and a woman sire children do not prove the existence of a marriage," said Justice Ongeri.
According to Justice Ongeri, her argument on the children would only hold water if it was in a child maintenance or succession case.
"The evidence on paternity is relevant only in maintenance and succession cases but not in matrimonial property disputes. I find that the applicant has failed to prove that she was married to the respondent," said Justice Ongeri.
At the heart of the case filed a decade ago was five acres of land in Kericho, another 10 acres at Burgei, Bomet, and 18 acres at Ngata, Nakuru County.
In her case, FCR argued that she had cohabited with CAL for more than 20 years. She asked the court to find that was a marriage.
According to the woman, she lived with the man at Kericho adding that it was during their cohabitation that he acquired several properties under his name.
She argued that it was during this time that she made an indirect contribution to the purchase of the properties.
The woman submitted that she made a substantial contribution to the improvement of the properties by cultivating, tilling, weeding and tending to the tea bushes on those land parcels when he was away working.
The woman said she was therefore entitled to an ascertainable interest in the properties.
In his response, the man denied everything.
He argued that he never had any children with her, and never cohabited with her adding that there was no customary marriage under Kipsigis traditions.
CAL also told the court that he does not own land in Kericho and no longer owns the land in Bomet.
While denying any existence of marriage, he told the court that he was rather married to another woman codenamed ICL and had seven children with her.
In a nutshell, he asserted that there was no land or property that he holds in the trust of FCR and her children.
In her case, FCR called three witnesses. They all argued that they knew the two were living together as husband and wife and they had children.
A village elder testified in her favour. He told the court that he knew both parties and that she was chased away and the father tried to intervene.
On the other hand, the man also called three witnesses to argue his case.
One of the witnesses codenamed RKC told the court that he was his neighbour who said he knew ICL and the seven children and not FCR.
He also called his sister-in-law as a witness. She testified that she knew FRC and she got the children while at her parent's home.
Justice Ongeri in her judgment stated that the presumption of marriage is on its deathbed owing to the change in matrimonial properties law. "As such, this presumption should only be used sparingly where there is cogent evidence to buttress it," she said adding that there was no evidence that either the man or the woman had consented or intended to marry.
Justice Ongeri said: "I find that there is no evidence that supports a finding in favour of the presumption of marriage in the instant case. I find that in the current case, there is no evidence that the parties intended to marry and neither was the consent by both parties demonstrated."
The judge also found that although the woman had argued that the properties were bought while they were together, she did not prove that she had an interest in the same.
