A man and woman who lived together for 28 years, during which they gave birth to five children, were never legally married, the Court of Appeal had upheld.
In a judgment delivered on November 7, Court of Appeal judges Francis Tuiyott, Lydia Achode and Aggrey Muchelule ruled that cohabiting only gives an assumption of marriage, but cannot transform a relationship into a marriage.
The judges made the ruling in a case where a man had sued his partner for selling their ‘matrimonial’ land without his knowledge.
Court documents show that the man’s relationship with the woman began in 1980 and they cohabited from 1982, having five children together, although only one survived.
However, at the Environment and Land Court in Malindi, the judge concluded the couple were not legally married because no dowry was paid and there was no marriage certificate for their union.
Aggrieved, the man approached the Court of Appeal seeking to quash the judgment.
He claimed to have bought the land in question, having provided the funds for its purchase. He alleged to have paid Sh197,000 out of the full purchase price of Sh200,000.
However, the title deed was registered in the name of the woman.
The man argued he allowed that to happen because he feared his other family would attempt to claim the land after his death.
The other family lived in his rural village in Kakamega county.
The Court of Appeal found that the property was purchased by and registered in the name of the woman, citing documentary evidence.
The judges held that matrimonial property rights flow from marriage and that because the man had paid no dowry, there was no evidence of marriage.
The man admitted that he neither paid dowry, had a church wedding, nor registered their purported marriage.
Having proved that there was no marriage between them, the woman told the court that the land could not be classified as a matrimonial home, hence the issue of spousal consent for the sale of the property did not arise.
“In those circumstances, it was imperative for the man to show that he was the source of the money that paid the consideration. This he did not do.
In addition, although he had testified that he had built rental houses on the property and enjoyed income therefrom, he did not provide evidence that he had built the houses or in the very least, that he collected or received rent from the tenants.
“This would have been invaluable evidence in the face of the documentary evidence that was stark against him,” the appellate judges said.
They added that there were many deficiencies in the man’s case and that by just living on the land, they could not prove any claim to it.
“Possession would not be inconsistent with the defence by the woman that by virtue of the relationship as boyfriend and girlfriend—in the case of the man—and as mother and son in that of their child, the two would have gained access to the suit property,” the judges said as they dismissed the case.
