M v R M [1985] KECA 77 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that living together for years doesn't create a marriage, especially while one partner remains legally married to someone else.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned judge erred in presuming a customary marriage between the parties in the special circumstances of the case
- 2.Whether the subsisting previous marriage of the respondent to Vermoor, and section 37 of the Marriage Act (cap 150), prevented any presumption of a valid marriage
- 3.Whether the presumption of marriage was rebutted on the evidence
- 4.Whether, if no marriage existed, the respondent's conduct and the parties' children gave rise to the claims in trespass, nuisance, detinue, injunction and removal of the children
- 5.Whether the High Court's findings on credibility and the parties' association could stand
Key legal issues
#Whether a customary marriage could be presumed during the subsistence of the respondent's prior marriage to Vermoor
No. Section 37 of the Marriage Act removed capacity to marry while the prior monogamous marriage subsisted, and the decree nisi did not dissolve that marriage; only a decree absolute could.
The court reasoned that a presumption of marriage covers both capacity and the fact of marriage. During the continuance of the Vermoor marriage the respondent had no capacity, so any new marriage was null until decree absolute. Acts before May 1979 (the earliest possible decree absolute) were unavailable to support the presumption, and after that date there was no cohabitation transaction, no bride price and no elopement; the family meeting of 12 June 1979 produced reconciliation efforts, not marriage.
Whether a marriage by elopement under Kisii customary law existed
No elopement marriage arose after the respondent was free to marry; no customary requirement, gift or marriage consideration was performed.
Gachuhi Ag JA observed that customary marriage by elopement is immediately formalized by performance of customary requirements in full or in part, and the evidence disclosed no step towards a customary marriage and no payment of marriage consideration. Under Kisii and Gusii customary law a woman may not enter a subsequent marriage during a prior marriage.
Whether the sham-marriage argument could defeat the Vermoor marriage
No. The Vermoor marriage was formally arranged, witnessed and consummated, and was relied upon in divorce proceedings, so it bound the respondent notwithstanding its lack of substance.
The respondent's marriage to Vermoor was arranged to preserve her reputation and employment when pregnant. It was formally agreed and witnessed, not shown to be unconsummated, and was relied upon as valid in the divorce proceedings before the resident magistrate. It could not therefore be treated as null ab initio to evade section 37; its validity was a matter of res judicata or estoppel.
Credibility findings and the remaining claims
The trial judge was entitled to prefer the respondent's evidence, but the High Court made no findings on the further claims, which the court itself dismissed while protecting the children's relationship with their father.
The court reviewed the family correspondence and the circumstances of the association and agreed the learned judge was entitled to prefer the respondent's evidence. It declined to remit the further claims, holding instead that the events of 26 July 1979 resulted from the appellant forcing a separation, that no damages for detinue or nuisance were payable, and that no discretionary remedy should help the appellant evade his responsibilities to his children.
Legal principles established
#- No marriage, customary or otherwise, can be formed or presumed during the subsistence of a prior monogamous marriage, by virtue of section 37 of the Marriage Act.
- The presumption of marriage can only arise, where parties cohabited during a prior marriage, from acts done after the party became free to marry by decree absolute, coupled with a transaction putting an intention to marry into effect.
- Common law marriage by virtue of long cohabitation alone is not recognized in Kenya.
- A party cannot escape a formally contracted and consummated marriage by asserting it was a sham; its validity binds by res judicata or estoppel where relied upon in divorce proceedings.
- A man who has cohabited with a woman, had children with her and led her to expect marriage cannot unilaterally force a separation without a settlement.
Court orders
#- 1.Appeal allowed in part
- 2.Judgment of the High Court set aside and substituted with a declaration in terms of prayer (d) of the plaint that the defendant is not the wife of the plaintiff
- 3.All other claims in the plaint dismissed
- 4.Each party to bear his or her own costs of the trial
- 5.Each party to bear his or her own costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the leading judgment. Held that no customary marriage could be presumed because section 37 of the Marriage Act barred any marriage during the subsistence of the Vermoor marriage, and no transaction or cohabitation occurred after the earliest date the decree absolute could have issued; allowed the appeal in part, granting the declaration that there was no marriage but dismissing all other claims and ordering each party to bear their own costs.
For these reasons I would allow the appeal in part. I would set aside the judgment of the High Court, substituting therefore the following judgmentp. 7
Wrote the judgment
Wrote a separate concurring judgment agreeing with Platt Ag JA. Added that common law marriage by long cohabitation is not recognized in Kenya, that the respondent was under disability under section 37 of the Marriage Act during the Vermoor marriage, that no customary steps such as payment of marriage consideration were proved, and that such associations are a state of concubinage attracting only moral obligations.
There can never be any form of marriage between the appellant and the respondent during the subsistence of the marriage between the respondent and Vermoor.p. 8
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- First appellate jurisdiction over the High Court (statutory appeal from the High Court; specific provision not stated in the judgment)
Relief refused
#General damages for detinue and nuisance
The events of 26 July 1979 flowed from the appellant forcing a separation; the responsibility for the breakdown lies on him as much as on the respondent.
Order directing the respondent to remove the children and damages for the appellant's expenses on the children
The appellant has a moral duty towards his own children which is irrecoverable.
Perpetual injunction restraining the respondent from entering or remaining on the appellant's residence
The appellant should not be aided by a discretionary remedy to evade his responsibilities to his children and their mother.
Costs
Each party will bear his or her own costs of the appeal, and each party to bear his or her own costs of the trial.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
i) a declaration in terms of prayer (d) of the plaint, declaring that the defendant is not the wife of the plaintiff; ii) all other claims shall be dismissed, and ordering each party to bear his or her own costs of the trial. Each party will bear his or her own costs of this appeal.
During the continuance of a previous marriage, the already married party would have no capacity to enter into the new marriage, and the new marriage would be null until the previous marriage had been brought to an end by a final decree of divorce
But if it is clear that there was an intention, to marry later, and some transaction took place, illustrating that the parties had put that intention into practice, then Hill v Hill may assist to allow the court to presume a marriage.
The common law marriage by virtue of long cohabitation is not recognized here.
It cannot be argued that the marriage was null and void ab initio, so that the defendant could walk out of it unscathed, avoiding section 37. The validity of the marriage is either or both a case of res judicata or estoppel.
There can never be any form of marriage between the appellant and the respondent during the subsistence of the marriage between the respondent and Vermoor.
In principle, I would not grant the plaintiff any discretionary remedy which will help him to evade his responsibilities.
Issues in the judgment
#The respondent's case is referred to in the citationTreatment above via two different case names for the same authority (Hortensia Yawe/Hortensiah Wanjiku Yawe), and the judgment inconsistently cites the Chesire case number as HCCC 4098 o31982 in one passage and HCCC 408 of 1982 in another.
The appeal number of the present case is not stated anywhere in the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "M v R M [1985] KECA 77 (KLR)", Case Analysis (1985). Civil Appeal (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1985/77/eng@1985-10-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.