Men and women with multiple partners should be allowed to claim matrimonial properties.
A man who is seeking property from a woman he claims to have been his wife has asked the Supreme Court not stick to the old rule that only those in registered marriages are eligible to claim a share of wealth.
In a case before Deputy Chief Justice Philomena Mwilu and justices Smokin Wanjala, Njoki Ndung’u, Isaack Lenaola and William Ouko, Mary Nyambura Kang’ara, alias Mary Nyambura Paul, denies that she was married to Paul Ogari Mayaka for 33 years.
But Ms Nyambura argues that her husband died, and that she was not eligible to marry Mr Mayaka.
The man, however, claims that they were in a come-we-stay marriage.
Yesterday, Mr Mayaka’s lawyer, Moses Siagi, argued that Married Women Properties Act is silent and therefore recognises both registered and unregistered marriages.
He asked the highest court in the country to find that even those cohabiting should be allowed to share their properties if they part ways.
“It is critical to appreciate that marriage is dynamic. Marriage evolves. As we have indicated, the Married Women Properties Act is silent and this was deliberate. As life changes, the meaning of marriage changes. Polyandry has to be looked at a different perspective and if there are properties, any party should not be denied to come to court under women properties Act,” said the lawyer.
His argument was backed by the Initiative for Strategic Litigation in Africa, which argued that partners are living together without registering those unions.
The lobby asserted that the current laws are discriminatory as they only recognise registered marriages.
According to its lawyer, Nyokabi Njogu, sharing matrimonial property is free for all persons who have opted to have families even without a formal marriage.
“The current regime speaks at the marriages that are registered. This court should extend it to cohabitation so that law protects families that are founded on cohabitation. Many people choose to enter into unions without necessarily entering into a marriage. Men and women may enter into union to live together and form families without registering those unions. On capacity, that is limited to those who choose to register their marriages,” she said.
Meanwhile, Ms Nyambura argued that even though they lived together, the union cannot be said to be a marriage.
She faulted the Court of Appeal for finding that they were married, adding that Mr Mayaka ought to have proved that they were married before claiming a share of matrimonial property.
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“An unmarried couple that lived together, long-term relationship that resembles a marriage is not a marriage. We submit that the name cohabitation without evidence capacity, consent and intention to marry there is no marriage,” she argued.
Matter of public interest
She wants the court to settle whether their come-we-stay relationship, from 1986, was a marriage and whether she should share her house with the man.
The Supreme Court is seeking to settle the dispute that started in the High Court in 2014.
The Court of Appeal had ordered Ms Nyambura to sell her property and share the proceeds with Mr Mayaka.
In that court, Ms Nyambura had asked Justices Martha Koome (now the Chief Justice), Wanjiru Karanja and Sankale ole Kantai to certify her case as one requiring Supreme Court’s ears as she had raised a matter of public interest.
Two judges, Justice Wanjiru and Justice Kantai, dismissed her application. But Justice Koome agreed that her argument needed further scrutiny by the apex court.
Justices Kantai and Wanjiru said that the two were private citizens whose fight bordered on matrimonial property division.
Justice Koome gave a dissenting opinion, saying that the case raised a novel issue on whether a couple can be assumed to have been married while one had not consented.
She also observed that there was the question of whether people who are not married can seek a share of property jointly bought and developed.
The Court of Appeal, while decreeing that Nyambura should share the land in Dagoretti, Nairobi County, with Mr Mayaka, observed that she lied that she was married to Mwangi.
According to the court, Ms Nyambura married Mr Mayaka in 1986 in a come-we-stay relationship.
She, however, weaved a deceitful tale to secure sole ownership of their house in Dagoretti.
When she was asked where the late husband was, Ms Nyambura testified that he died. But she could not tell the date he was buried in Kiambu County.
She also failed to identify any relative of her alleged late husband. She could also not remember when Mwangi had paid dowry.
“The picture that emerges from the evidence is that Kang’ara (Mwangi) the husband may well have been a creation of Mary’s (Nyambura) fertile imagination for the purpose only of defeating her marriage by presumption to Mayaka. If he ever existed in flesh and blood, not a single witness called had ever seen him,” said judges Patrick Kiage, Fatuma Sichale and Philip Waki.
Mr Mayaka worked at the Tetra Pak while Ms Nyambura sold used polythene bags to farmers in Kawangware and Wakulima Market.
Mr Mayaka claimed they bought the property in 1991 and decided to have it registered in Ms Nyambura’s name as the initial owner was not keen on selling it to a non-Kikuyu.
The title’s name read Mary Nyambura Paul.
In her efforts to have exclusive ownership of the three-storey building generating Sh258,000 a month, she first filed a divorce case in the Magistrate’s Court in 2011 and had her marriage dissolved.
She told the court that her husband had deserted her.
Armed with the divorce orders, and aided by policemen, she threw Mr Mayaka out of the property.
The man sought the High Court’s intervention in 2014 after he was informed that she was in the process of selling the property.
He, however, lost his case after Ms Nyambura testified that she was married to a Mwangi in 1974, but they parted ways in the 1980s.
Although she had adopted the name Paul, she alleged that it was her late husband’s name.
Ms Nyambura referred to Mr Mayaka as her tenant, adding that he was just a house agent who collected rent on her behalf.
Her sister, Teresiah Waithera, however contradicted Ms Nyambura’s testimony on where Mwangi was buried. She could not recall whether her sister was married and did not see him paying dowry.
Ogari produced documents showing that they bought the property together. He had receipts given when he applied for electricity and sewer line connection bearing his name.
The Deputy Chief Justice said they will deliver their judgment on the dispute on notice.
Kenya borrowed the 125-year-old Married Women’s Property Act from Britain.
The law dictated that upon marriage, a woman ceased to exist as a legal person and all of her possessions went automatically to her husband unless it was specifically spelt out that they were for her own separate use. Britain amended the law in 1970, but Kenya continued with the old law until January 6, 2014, when the Matrimonial Property Act 2013 was enacted.