The Supreme Court of Kenya has issued a landmark judgment in the case of MNK v POM; Initiative for Strategic Litigation in Africa (ISLA) (Amicus Curiae) (Petition 9 of 2021) [2023] KESC 2 (KLR) (27 January 2023) affirming that courts should not impose marriage on individuals who have no intention of being legally bound. Recognizing the evolving nature of relationships, the Court emphasized that cohabitation alone does not constitute a marriage unless specific legal criteria are met.
Strict Parameters for Presumption of Marriage Reaffirmed.
The Court has reaffirmed the conditions under which a presumption of marriage may arise:
📍The parties must have lived together for a significant period.
📍Both parties must have the legal right to marry.
📍The parties must have intended to enter into a marital union.
📍There must be clear consent from both individuals.
📍The couple must have held themselves out as married.
📍The party asserting the presumption bears the burden of proof.
📍 Strong, distinct, satisfactory, and conclusive evidence is required to rebut the presumption.
📍The presumption must be proven on a balance of probabilities.
The Supreme Court further observed that despite setting these parameters, the presumption of marriage is on the decline due to changes in Kenyan matrimonial laws. Courts should apply this presumption sparingly and only when supported by compelling evidence.
The ruling acknowledges that marriage carries significant traditional, religious, social, and cultural meaning for many Kenyans. However, it also recognizes that an increasing number of adults choose to cohabit without intending to marry. Courts must respect these choices and refrain from imposing marital status where there is no clear intent.
The Court also pointed to global trends, such as Alberta, Canada’s Adult Interdependent Relationships Act, which provides rights and obligations to cohabiting partners without assuming marriage. The judgment suggests that Kenya’s National Assembly and Senate, in collaboration with the Attorney General, should consider enacting legislation to address the rights and responsibilities of individuals in long-term cohabitation relationships.
Conclusion
The Supreme Court’s ruling highlights that the presumption of marriage is the exception, not the rule. Going forward, Kenyan courts will require clear intent and substantial evidence before presuming a marital relationship, ensuring that personal autonomy and evolving social dynamics are respected.
Read the full opinion below
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