Supreme Court of Kenya and the development of rich and respectful jurisprudence: Petition No. 9 of 2021

At the SC, Mary effortlessly refuted the presumption of marriage against Paul, on grounds, inter alia, that she was married to another person with the initials KM at the time she cohabited with Paul and as such, she did not have the capacity to enter into a marriage let alone to be presumed married. In dismantling Paul’s claim, the SC went on to spell out the circumstances under which the concept could be ‘sparingly’ applied, which included that parties should have intended to get married, and they must have had the capacity to do so. For Paul, the SC decision of 27th January 2023 was still a reprieve to him to the extent that he was given a 30% share of the property he pursued. This share was, certainly, a lesser percentage than the CoA’s 50%. But it was still better than the HC’s dismissal of his claim to the property based on marriage. In other words, he retained a larger portion of what the CoA gave him even though the SC found, against him, on the question of whether he could be presumed married to Mary.

The expectation of rich and respectful jurisprudence

As pointed out by the SC, the principle by which a couple’s dispute gained access to its jurisdiction, ‘presumption of marriage’ and its applicability, transcended the proprietary interests at play between the two. The decision is, arguably, bound to have far-reaching ramifications, especially on the law of succession. This reflection is not, however, about the implications of the judgment on succession, or even matrimonial property. It considers a narrow concern which is whether in making a decision with such (potentially) monumental consequence the SC paid homage to some of the obligations imposed on it by its enabling statute. In the end, I argue that on a balance, a critical reading of the Mary v Paul decision reveals a disconnect between the exposition manifested in the decision and the expected.

Part of the expectations of the SC when adjudicating disputes is set out under section 3 (c) of the Supreme Court Act (SCA).  It enjoins the SC to ‘develop rich jurisprudence that respects Kenya’s history and traditions, and facilitates its social, economic and political growth’. Forlornly, and with the notable exception of Mutunga’s judgments, there is hardly a decision of the SC where there is a beyond bare reference to section 3 (c) of the SCA. Put differently, ‘rich jurisprudence’ on section 3 ©’s ‘rich jurisprudence’ obligation is yet to be developed.

Nevertheless, the section has not failed to attract aficionados or for that matter expositors. Former Chief Justice Willy Mutunga and law lecturer, Elisha Ongoya, are such. For both of them, section 3 of the SCA demands of the SC to develop jurisprudence that is both ‘robust’ and ‘indigenous’. Ongoya’s views are largely espoused in his presentations in different fora both formal and informal (some of which I have been part of) while Mutunga’s are encountered in his judicial opinions. In Advisory Opinion No. 2 of 2012, In the Matter of the Principle of Gender Representation in the National Assembly and the Senate [2012] eKLR, Mutunga wrote about section 3 (c) of the SCA as follows

The Constitution is complete with its mode of its interpretation, and its various Articles achieve this collective purpose. It is in interpreting the constitution that our robust, patriotic, progressive and indigenous jurisprudence will be nurtured, grown to maturity, exported, and becomes a beacon to other progressive national, African, regional, and global jurisprudence. After all, Kenya correctly prides itself as having the most progressive constitution in the world with the most modern Bill of Rights. In my view this is the development of rich jurisprudence decreed by Section 3 of the Supreme Court Act that respects Kenya’s history and traditions and facilitates its social, economic and political growth…The obligation of the Supreme Court is, therefore, to cultivate progressive indigenous jurisprudence in the momentous occasions that present themselves to the Court. By indigenous jurisprudence, I do not mean insular and inward looking. The values of the Kenyan Constitution are anything but. We need to learn from other countries and from scholars like the distinguished Counsel who submitted before us in this Court. My concern, when I emphasize? indigenous is simply that we should grow our jurisprudence out of our own needs, without unthinking deference to that of our other jurisdictions and courts, however distinguished. This Court, and the Judiciary at large has, therefore, a great opportunity to develop a robust, indigenous, patriotic and progressive jurisprudence that will give our country direction in its democratic development’.

Indeed, when section 3 (c) of the SCA is decrypted, certain expectations are discerned on the part of the SC. First is that the SC should, ‘develop’ jurisprudence. In other words, the court should ‘cause to grow’, ‘elaborate’, and ‘advance’ jurisprudence. Second, the developed jurisprudence ought to be, in the words of Mutunga, ‘robust’. In this sense, a decision should be ‘profuse’, ‘prolific’ and ‘plenty’ as opposed to being of low or inferior standards or quality. Lastly, section 3 (c) of the SCA may be thought of as demanding ‘sensitivity’ to reality even if part of the overall court’s project is to liquidate aspirational constitutionalism. Seen this way, and though one would contest the existence of something like ‘indigenous’ or ‘patriotic’ jurisprudence, deployment of such or equal terms, especially teleologically, to describe obligations under section 3 (c) of the SCA is not entirely misplaced. It is proceedings under these premises that we now reflect on to assess the work of the SC when confronted with the dispute between Mary and Paul.

As noted, the Court was called upon to determine the applicability of the doctrine or concept of the presumption of marriage being a matter of ‘general public importance’. The SC rightly points out that this idea has been in circulation since the 1970s when it was applied in Hortensia Wanjiku Yawe v The Public Trustee [1976] eKLR. Both before and after 2010, courts have resorted to this doctrine to protect, especially women, who lived in unregistered marriages. When Parliament enacted both the Matrimonial Property Act (MPA) in 2013 and the Marriage Act (MA) in 2014, it essentialised registration as a criterion for ‘marriage’ (Section 3). The phrase, ‘cohabit’ is used under section 2 and is defined to mean ‘to live in an arrangement in which an unmarried couple lives together in a long-term relationship that resembles a marriage’.

Interestingly, the MA does not make use of the term again except under section 84 which bars proceedings to ‘compel one spouse to cohabit with the other’. One wonders why Parliament defined the term ‘cohabit’ almost in the terms similar to the judicial conception of ‘presumption of marriage’ but failed to prescribe instances when the presumption of marriage as a result of cohabitation may arise or be invoked. Though the SC indicated that the current matrimonial laws did not apply to the case at hand, one can tell that it bore into mind their import when deciding the case at hand. In any view, the applicability of the concept transcended enactment of present matrimonial laws if the CoA’s deference to it is anything to go by.

Given the rampant nature of cohabitation in Kenya and the fact that many ‘marriages’ especially customary ones are unregistered, the SC was expected to ‘develop’ jurisprudence on the concept. Though, perhaps, it did so in paragraph 64, by listing what must be met before a marriage may be presumed, the court reversed the development of the common law concept of presumption of marriage by invoking and justifying constructive trusts in lieu and, at paragraph 65, by explicitly decreeing that the concept (of presumption of marriage) ‘is on its deathbed’ and should be used ‘sparingly’. Without linking this verdict to any diminished use of the concept in Kenyan courts, the SC justified its position as being ‘reinforced by changes to matrimonial laws in Kenya’. As highlighted above, a critical reading of the MPA and MA does not however show the reinforcement. What can be seen is that the two statutes indicate nothing about cohabitation in a context where one imagines the Parliament defining the terms for a more elaborate use. Crudely put, the SC ‘killed’ jurisprudence on an issue it ought to have ‘developed’ in the face of a discernible oversight on the part of Parliament.

Secondly, on unmet expectations and ‘development’ of jurisprudence, there was a concern that featured in the minority judgment of Martha Koome JA at the CoA when she differed with her colleagues, Karanja and Kantai JJA, on whether the appeal met the Article 163 (4) (b) test. In Koome’s view, women are the ones that have invoked the Married Women’s Property Act so the fact that Paul’s case was to be pursued under common law’s concept of presumption of marriage is a situation that had some novelty to deserve SC’s articulation. She stated as follows:

‘These considerations give this case a twist and takes it from the ordinary suit filed by women under the Section 17 of MWPA. The women there claimed that they carried out domestic work and other duties; they conceived and bore children. This case ought to open another line of jurisprudence so that when the claim is by a man, it will be imperative for the court to know the principles to apply as men and women play different roles in a family. A man who cohabits with a woman in a property held in the woman’s name also needs to prove contributions that he made because merely lounging in a woman’s house while dominating the remote control for the Television Channels cannot entitle a man a share of the woman’s property’.

Though the SC set out a general criterion to be fulfilled when the concept is invoked either by men or women, this particular ‘twist’ did not receive any particular attention. Yet, the ‘development’ of jurisprudence, could be a lesser charge that someone can formulate against the SC, because—as already observed—they did something in paragraph 64 akin to it.

Some reflections on jurisprudence in Petition No. 9 of 2021

The main problem with the judgment appears to lie on the issue of the ‘robustness’ and hence ‘richness’ of the jurisprudence. A few observations need to be made on this point. First, the SC misapplied Mary Njoki v John Kinyanjui Mutheru & 3 Others [1985] eKLR as relating to the presumption of marriage, in the same way as Hortensia Wanjiku Yawe v The Public Trustee Nairobi (1976). On the contrary, the Mary Njoki case was, in the main, about whether the concept of presumption of marriage found support in customary law. Second, the SC did not use the criteria it developed under paragraph 64, to determine Mary and Paul’s case before them. In paragraph 64, the SC set a formula for presuming a marriage which included at 64 (2) ‘that parties must have had the capacity to marry’ and at 64 (7) that ‘the evidence to rebut the presumption has to be strong, distinct, satisfactory and conclusive’.

To be sure, the issue of presumption of marriage turned to the question of whether Mary could be presumed married to Paul in the face of another claim that she was married to a man named KM. Towards this end, and in the absence of a marriage certificate between Mary and KM, the SC did not consider the criteria for proof of customary marriage between Mary and her alleged former husband to decide that she was already married and thus did not have ‘capacity’ to be presumed married to Paul courtesy of long cohabitation. The HC judgment has the following revealing portions:

‘The defendant’s case opened on 22nd October 2015, when she took the witness stand. She said that she had been married to one K M, and they remained so married until the latter died in 2011. She said she knew the plaintiff since 1995, but they began to relate in 1996… She separated from her husband K in 1987, and that they still retained contact even after that, although he had married another woman with whom he lived with at Kibera…I need to state at this stage that while at the witness box, the defendant adopted a rather disagreeable attitude during cross-examination. From her demeanour I could sense an element of defiance or a level of arrogance or even hostility to counsel cross-examining’.

The CoA for its part had distilled Mary’s situation as follows:

‘She herself only stated that she got married to K under Kikuyu customary law. She did not say when and where that was. What ceremonies, if any, were performed? Who attended? Was dowry paid? How much or in what form? Did she and K ever cohabit? If so where and when? Was there any child born of K? She testified in cross-examination as follows. She went on to say that she separated from K in 1987 and the question that begs is, how could she separate from him if she never lived with him in the first place? Indeed, her words were; ‘Before he (K) died, I used to see him. He lived with his wife at Kibera. I used to go and see him. Whenever I wanted. He never lived with me at Kawangware but he used to visit me there. Given that kind of testimony, was there any basis in fact or law for finding as did the Judge, that MNP was a woman married when she met and started cohabiting with POM? We most decidedly think not. The said K is said to have died but, tellingly, MNP did not say she attended his burial. She simply said that he was buried in Nakuru but she could not recall the name of the place, before adding that it is called Ngarua but she did not know the name of the nearest market’.

As seen, CoA had interrogated the issue with rigour and discarded the claim that she had been already married. For its part, all the SC considered is a name on Mary’s national identification document which (must have) was taken as proof that she was married to her ‘deceased’ husband.  Whereas it accused the CoA of being inclined to disbelieve Mary, it disregarded the HC’s observations on Mary’s conduct during cross-examination as well as her contradictions in testimony but more overtly, presumed a marriage (under customary law) between Mary and KM, contrary to its own paragraph 64 criteria as well as the pronouncements of Kneller and Nyaragi in Mary Njoki which they cited with approval at paragraph 41

In light of section 64 (7), the Court stated that evidence to rebut presumption ought to be strong, distinct, satisfactory, and conclusive. While this is what the CoA applied to dispel the claim that Mary was unavailable to be presumed married, the SC in a short 4-line paragraph found that presumption of marriage could not arise as Paul had a first wife and had not also paid dowry for Mary. But, even if this circumstance rebutted the presumption between them, the Court was introducing a completely distinct formula for presuming a marriage under common law. In other words, the SC is in favour of presuming the non-existence of marriage which is rebutted by fulfilling the paragraph 64 criteria, hence a marriage by cohabitation and repute. All these, ultimately, reveal a disconnect between the ‘jurisprudence’ of the court and material facts in the case as well as established legal principles.

The last reflection that one may venture into on the decision is on the extent it  ‘respects’ history and traditions. In section 3 terms, this is about the sensitivity of the decision to practices within society. In this vein, there were two ways, I argue, that the Court could approach the case before it. First, it could fortify the place of long cohabitation so that with it, a party needs ‘strong, distinct, satisfactory and conclusive’ evidence to upset the presumption of marriage, or as it did, subordinate cohabitation to other material factors without which long cohabitation per se cannot justify the presumption of marriage. Going by the former, many people who are yet to ‘register’ or ‘formalize’ their unions, or to comply with customary marriage requirements, would be nipped in an expanded bracket of ‘those in marriage’. Arguably, this is the largest holding in the Kenyan ‘matrimonial’ context, especially in rural set-ups. To tell such a population that they are in ‘independent’ relationships and that the concept of a constructive trust may be used to determine their entitlement to property notwithstanding the duration of time they cohabited with their ‘spouses’ is to disregard their lived reality. In this regard, though there are variations in the practice of marriage especially granted that romanticism and monogamy continue to gain root as the foundation of present-day African marriages, I argue, in this regard that interdependent relationships are inconsistent even with an evolved notion of African marriages if something like this exists.

There is also a dismissal of polygamy that is launched under paragraph 51 of the Judgment of the SC. Though it is not clear whether the Court left out some punctuation marks and therefore the entire paragraph is not a citation of the Indian case of Gokal Chand v Parvin Kumari, AIR, 1952 SC 231 referred to in the paragraph, the statement that ‘polygamy…cannot be said to be a relationship in the nature of marriage’ is out of touch with the prevalent matrimonial practice that is in any case recognised even by post-2010 matrimonial laws. In particular, this pronouncement contradicts the Marriage Act that recognises polygamous and potentially polygamous marriages under customary law as well as in Islam. While, thus, polygamy is also losing grip as a form of ‘marriage’ in Kenya, to declare that it is not a relationship in the nature of marriage is, with respect, to disrespect relationship ontology capable of being linked to Kenyan society.

In conclusion, it suffices to say that lately, the SC has been asked to decide issues of great moral controversy. If the court is to maintain its sociological legitimacy and relevance, it is argued that the judges of the SC may need to think of themselves and act as ‘Doctors of Law’. This means that their expertise, in the absence of public support, is what they need to wade into unpopular terrains and, as noted, liquidate aspirational constitutionalism. How the judges of the SC justify their decisions should be defensible by the law’s own methods and sufficiently different from how politics or intuition does. This calls at the very least for ‘robustness’. It would seem that section 3 (c) of the SCA entrenches this expected proclivity, yet while reading Mary v Paul at the Supreme Court, a somewhat different picture emerges.

The author holds a PhD in constitutional law, from the Institute for Jurisprudence, Constitutional and Administrative Law, Utrecht University; is an advocate of the High Court of Kenya and a Lecturer in the Department of Public Law at Moi University where he teaches Constitutional Law.

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