MNK vs. POM

Nature of the Case

The case involved a couple that had been living together for more than 20 years but were not married. After the end of their cohabitation, POM was evicted by MNK from the home, and sought to enforce his share of the property acquired during the subsistence of their cohabitation relationship based on the Married Women’s Property Act (now repealed). The court held that although there was long cohabitation, the presumption of marriage was inapplicable here because a new legal regime was necessary. The court found that instead, ordinary laws governing property rights were applicable and a series of parameters could be used to determine the property breakdown by share. The court directed the legislature to formulate and enact a statute to clarify the rights of cohabitees in a long-term relationship.

Summary

The case was originally filed in the Nairobi High Court by POM in 2013, after the end of a 25 year cohabitation with MNK. After the separation, POM alleged that he was evicted from the home, and he invoked the Married Women’s Property Act, section 17, in a claim for division of matrimonial property. POM claimed that their cohabitation resulted in the purchase of a matrimonial property that was registered only in MNK’s name due to conflict with the Kikuyu tribe, who did not want the sale to go through to POM. The High Court dismissed the suit and held that the presumption of marriage was inapplicable under the circumstances, as MNK was already married to a separate party. In the absence of marriage, POM could not rely on the provisions of the MWPA.

The Court of Appeal then held that the High Court erred in finding the existence of a previous marriage, and ordered that the matrimonial property in question be divided into two equal halves. MNK then filed this appeal to the Supreme Court, where she argued that parties to a marriage must have the capacity to enter into a marriage, and that she did not as she had a previous marriage and children. MNK also argued that a long-term relationship was not a marriage, and that she solely had contributed to the property at issue.

The Supreme Court determined two key issues. The first was that the MWPA was applicable because it did not go into details as to how the marriage came to be or how it was contracted. Thus, the court held that parties to a union unrecognized by law could file such a case. The second required the court to determine the legal status of the relationship. It disagreed with POM that the long cohabitation amounted to a marriage, but also determined that this was not an instance where a court could rightly presume a marriage. The court elaborated on the strict parameters within which a presumption of marriage could be made, including duration of cohabitation, intention to marry, legal capacity and right to marry, and consent. As MNK was married to KM, the external party, until his death in 2011, the court held that MNK did not have the capacity to marry and thus the doctrine of presumption of marriage was not applicable. It proceeded to quantify the beneficial interest to the parties based on direct financial contribution of the suit property, while acknowledging other forms of non-monetary contribution as seen in MW v. AN. In addition to the legal decision, the court directed the legislature to develop a legislative framework and statute to address these long-term relationships in the future.

Enforcement of the Decision and Outcomes

For the parties themselves, the court held that the suit property should be divided based on direct financial contribution to the acquisition of the suit property as well as the non-monetary contributions made to the property, such as maintaining or improving the property. POM was granted 30% of the proceeds from sale, while MNK was granted 70% of the proceeds from sale.

The case also included a directive from the Supreme Court that Parliament devise a new statute that would deal with the ‘presumption of marriage’ doctrine and clarify how to protect the rights and interests of parties and families in long-term partnerships that do not amount to a marriage. To date, the Court’s call to Parliament in collaboration with the Attorney General is in progress. ISLA and others have argued that the Supreme Court should have set out guidelines for the new legislative framework.

Significance of the Case

The decision is important for those living in long-term relationships with partners who are not married, and their rights and obligations at the end of such a relationship. By distinguishing between presumption of marriage and long cohabitation, the Supreme Court held that there is a deep need to formulate and enact statute law that deals with the inequities that occur during the dissolution of a partnership. The court acknowledged that it is increasingly common for two adults to live together for long durations without desiring or intending to enter into a marriage, and that the impact of this is that those ‘family formed unions’ need to be recognized and protected by the law.

For their contributions, special thanks to ESCR-Net member: the Program on Human Rights and the Global Economy (PHRGE) at Northeastern University.