Whether Presumption of Marriage by cohabitation existed between the Appellant and the Respondent
14.The question whether a marriage can be presumed is a question of fact it is not based on any law but is largely dependent on facts and circumstances which tend to prove that the intention of the parties by living together are so living as husband and wife. It must be demonstrated that there exists long continuous cohabitation and there is a general repute that the parties are husband and wife.
16.The appellant has relied on the fact that himself and the respondent were married in 1999 under the Meru Customary Law and started living together as husband and wife. It is his contention that during the said cohabitation they were blessed with two children. The fact that the parties had two children is not in dispute as the respondent admitted that the two children MMP aged 15 years and TMP aged 9 years were fathered by the appellant. It is however my considered view that the fact of a couple having children together is not enough to demonstrate existence of marriage. What this court has to determine and which was also the issue before the trial court is whether the appellant proved on a balance of probabilities that there was a marriage.
17.As a general proposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of Section 107 (1) of the Evidence Act (Chapter 80 of the Law of Kenya), which provides:
Existence of Customary Marriage:
18.I have considered the evidence adduced by the parties before the trial court. On the one side, the Appellant alleged that he contracted a marriage under Meru Customary Law. On the other side, he urges the court to presume the existence of a marriage by virtue of long cohabitation and repute.
19.In the restatement of African Law, Kenya Vol 1 Chapter 4 by E Cotran for a valid customary law marriage involving the Meru and Tharaka consent of spouses and families of spouses are necessary. Further marriage consideration or dowry is paid on behalf of the bridegroom to the father or a guardian of the bride. Cotran in his book on page 38 under 111 Marriage consideration stated as follows:-
20.The appellant has contends that there was a customary marriage between him and the respondent. Section 43 of the Marriage Act which forms the law for the customary marriage provides:-1.“ A marriage under this part shall be celebrated in accordance with the customs of the communities of one or both of the parties to the intended marriage.2.Where the payment of dowry is required to prove a marriage under customary law, the payment of a token amount of dowry shall be sufficient to prove a customary marriage.”
21.It is therefore necessary for this court to determine whether dowry was paid. The appellant and his two witnesses adduced evidence that is PW2 & 3 that they took a sheep and a goat to the parents of the defendant and also paid Kshs 20,000/-. Surprisingly, they never testified as to who was given the purported dowry. According to PW2; they were not accompanied by the appellant’s parents, they never met the in-laws and never went back there. Similar evidence was given by PW3 who testified that he never met with appellant’s parents to pay the dowry.
22.The testimony of PW2 & 3 contradicted that of the appellant in some very material particulars whereas PW2 & 3 were categorical that they were not accompanied by the appellant’s parents, the appellant maintains that his parents were present during the alleged marriage. The contradictions are an indication that they were not telling the truth. The evidence of the appellant and his two witnesses falls short of the enquired standard of proof. The respondent had in her statement given an elaborate procedure and undertaking that a man and a woman must undergo for there to be a Meru Customary Marriage. According to the respondent when a Meru man and woman come together and decide to get married, they report to their respective parents. The man goes to the woman’s home and is introduced. The parents enquire as to whether the two clans are allowed to inter-marry. The man then request her hand in marriage. The parents on both sides then meet at the grooms parents home to negotiate dowry. The parents of the man give a sheep (ewe) and a ram. The agreed dowry is then paid. This includes a tin of honey, about twenty (20) litres, 2 blankets, 2 suits, 1 sack of sugar a bag of millet and a bull.
23.There is no dispute that these are the essentials of the Meru Customary Marriage. ‘ Eugene Contran in Restatement of Customary Law Kenya Volume –1 on marriage and Divorce Page 38’ states as follows:-
24.The appellant had the burden to prove that he married the respondent through customary law. He who alleges must prove. The appellant did not discharge this burden. The evidence relied on by the appellant is discredited. It failed to prove that even the basics of the marriage like meeting the respondent’s parents was achieved. Marriage is a public affair and involves the two families, relatives and friends.
25.The appellant has failed to prove that he met the parents of the respondent and the issue of the dowry settled.
26.The appellant has not discharged the burden to prove that dowry was paid as required under Section 43 of the Marriage Act (supra). The Meru Customary Law laid down by the respondent and her witness is explicit on the ceremony as well as the specific items to be given or to be paid to the parents of the woman. There ceremony involves procedures which are witnessed and are confirmed by the parents on both sides to cement the bond of marriage and is usually not one day event. It is even surprising that from 2004 to 2014 the appellant never went back to the respondent’s parents home and yet he had not paid the full dowry or undertaken the various ceremonies that go with a marriage ceremony. I find that the appellant did not prove that payment of dowry was made under Meru Customary Law Marriage and did not therefore prove that there existed a valid customary marriage between him and the respondent that was capable of being dissolved by an order of the court.
27.In this case, the Respondent’s father testified that he had never received any payment as dowry. Further, PW2 testified that he only went with the Appellant for the alleged dowry payment ceremony while PW3 testified that they went the three of them. Considering the evidence in totality, it is my view that the inconsistencies in the Appellant’s evidence do not, on a balance of probabilities, support his claim of there being a marriage between him and the Respondent.
Presumption of Marriage:-
28.What this court has to determine under this head is whether any other form of marriage exist between the appellant and the respondent. The claim by the appellant is that there is a presumption of marriage by cohabitation. The appellant contends that he cohabitated with the respondent from the year 1999 until 2014, a period of fifteen years.
29.On the other hand, the respondent contends that she never lived together with the appellant as husband and wife.
30.The concept of presumption of marriage by cohabitation is a principle of common law. It is a principle that where a man and woman have cohabitated for such a length of time and in such circumstances as to have acquired a reputation of being a man and wife, a lawful marriage between them will generally be presumed though there may be no positive evidence any marriage having taken place.See In Re-Estate of Mbiyu Koinange (deceased) (2015) eKLR.
31.The presumption can be rebutted by a party presenting weighty and credible evidence to the contrary. The appellant relies on the Court of Appeal decision in Joseph Wanjiru –v- Kabui Ndegwa Kabui & Another (2014) eKLR where the court held:-However, in circumstances where parties do not lack capacity to marry, a marriage may be presumed if the facts and circumstances who the parties by long cohabitation or other circumstances evidenced an intention of living together as husband and wife.”
32.For a party to establish the presumption of marriage, two ingredients must be proved, that is,a.Long continuous cohabitation between a man and a woman.b.General ReputeOn the issue of long continuous cohabitation.
33.In my view the appellant did not give credible evidence of long continuous cohabitation with the respondent. He gave casual evidence of having lived together at Chogoria but never stated that they had a matrimonial home where he lived with the respondent and the two children. The two lived together at Chogoria. The respondent’s defence was that the appellant was a casual visitor and a friend and that the two never shared a roof for a day and night. The appellant did not prove that there was a long and continuous cohabitation. It would seem the applicant was trying his luck or testing the waters. His evidence concentrated on prove of existence of customary marriage which he never proved on a balance of probabilities. He then swings to presumption of marriage. He ought to have then brought some evidence to prove the presumption. The second ingredient is General Repute. The appellant and the respondent are residents of Chogoria and having lived there long enough, the appellant ought to have called evidence to prove that the community regarded him and the respondent as husband and wife. In any case, the appellant never called his parents or siblings to adduce evidence that they considered the two as husband and wife. The burden was on the appellant to proof the presumption of marriage.
34.I find that the appellant did not adduce sufficient evidence to prove on a balance of probabilities that there was a presumption of marriage between him and the respondent by virtue of long cohabitation and repute.