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Court of AppealDismissedCivil Appeal 138 of 2019· [2022] KECA 612 (KLR)

TMG & another v AP

Court of Appeal
6 May 2022
SKS. Gatembu KairuPNP. NyamweyaJLJ. Lesiit
6,191 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that long-term cohabitation creates no marriage or property rights where one partner is still legally married to someone else.

What this practically means

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Executive summary

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The Court of Appeal at Mombasa (S. Gatembu Kairu, P. Nyamweya and J. Lesiit, JJA) dismissed an appeal against a High Court judgment (Thande, J, 10 April 2019) which had dismissed TMG's suit and allowed AP's counterclaim, declaring that no marriage existed between the parties and ordering delivery of vacant possession of the Shanzu suit property. The appellants, a woman and her minor son, had claimed a presumption of marriage, an equitable interest in the property, and parental responsibility by the respondent over the child. The court framed three issues: capacity as a prerequisite for presumption of marriage; constructive or resulting trust; and parental responsibility. On the first, it held that because the 1st appellant had a subsisting monogamous marriage to one Pearson, she lacked capacity to marry, and under sections 9 and 11 of the Marriage Act no marriage could be presumed; cohabitation by an unmarried couple is at best cohabitation. It distinguished POM v MNK, where no evidence of a prior marriage existed. On the second, it found no pleaded, particularized or proved trust, no intention to create one, and no contribution by the appellant to the property, which the respondent had solely purchased and registered in his sole name. On the third, it found no parent-child relationship akin to that of a parent and no adoption order, the joint adoption application being barred by section 158(3)(d) of the Children's Act. The court confirmed the trial judgment and made no order as to costs.

Key legal issues

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01

Whether capacity to marry is a prerequisite for presumption of marriage

Holding

Yes. A marriage cannot be presumed where one party lacks capacity due to a subsisting monogamous marriage; the trial judge correctly declined to presume marriage.

Reasoning

The court adopted Bosire JA's statement in Mary Wanjiku Githatu and sections 9 and 11 of the Marriage Act, which bar a person in a monogamous marriage from contracting another and render such a union void. Unlike POM v MNK, here there was a marriage certificate and pending divorce proceedings proving the subsisting marriage, so the presumption could not arise.

02

Whether a constructive or resulting trust existed over the suit property in favour of the 1st appellant

Holding

No. There was no evidence of an intention to create a trust, the resulting trust claim was not pleaded or proved, and the appellant made no contribution to acquisition or development.

Reasoning

Applying Twalib Hatayan and Peter Ndungu Njenga, the court held that trusts are implied only to give effect to clearly determined intention. The respondent's conduct - registering the suit property in his sole name after sharing the Mtwapa proceeds - showed each party going solo. The appellant's alleged contribution (supervising construction) was unspecified and unquantified.

03

Whether the respondent had parental responsibility over the 2nd appellant

Holding

No. The respondent had no relationship with the child akin to that of a parent, and no adoption order was issued; the trial judge did not err.

Reasoning

The adoption cause was jointly made by the unmarried applicants and was incapable of being granted under section 158(3)(d) of the Children's Act. Relying on ZAK & another v MA, the court held that loco parentis status must be demonstrated, and no evidence showed a parental relationship between the respondent and the child.

p. 10

Legal principles established

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  • A marriage cannot be presumed in favour of a party to a relationship where one of them is married under statute and thus lacks capacity to marry.
  • A union entered into by a person incompetent to marry by reason of a subsisting marriage is void under section 11 of the Marriage Act.
  • Cohabitation by an unmarried couple is recognized only as cohabitation, not as marriage, and confers no spousal rights.
  • A party claiming an interest in property must plead, particularize and prove the trust or contribution relied upon.
  • Parental responsibility cannot be imposed on a party who has not had a relationship with the child akin to that of a parent.

Court orders

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  1. 1.Confirmation of the judgment, declarations and orders of the learned trial Judge
  2. 2.Dismissal of the appellants' appeal
  3. 3.No orders as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159
  • Constitution of Kenya, 2010Article 24(4)
  • Constitution of Kenya, 2010Article 170(5)
  • Court of Appeal RulesRule 29
  • Marriage ActSection 2
  • Marriage ActSection 9
  • Marriage ActSection 11
  • Matrimonial Property Act, 2013Section 2
  • Matrimonial Property Act, 2013Section 6
  • Children ActSection 4(2)
  • Children's ActSections 154 and 156
  • Children's ActSection 158(3)(d)
  • Kadhis' Courts ActCap 11
  • Trustee Act
  • Halsbury's Laws of England, 4th Edition Vol. 48Paragraph 597

Cases cited (13)

  • Selle & Another vs Associated Motor Boat Co. Ltd & others
    (1968) EA 123

    First appellate court's duty to re-appraise evidence and draw its own conclusions

  • Jabane vs Olenja
    [1986] KLR 661

    Departure from trial court findings only where not based on evidence or wrong principles

  • POM V MNK
    [2019] eKLR

    Presumption of marriage despite claim of prior subsisting marriage; distinguished on its facts

  • CKC & Another (suing through their mother and next of friend JWN) v ANC
    (2019) eKLR

    Application of Islamic law and Kadhis' Courts jurisdiction; distinguished as involving Muslim parties

  • Rose Mueni Musau v Brek Awadh Mbarak
    CA No. 267 of 2011

    Trial court should opt for the law best according with the Constitution

  • Mary Wanjiku Githatu v Esther Wanjiru Kiarie
    [2010] eKLR

    Presumption of marriage is a question of fact; cannot arise where a party is married under statute

  • Macharia Mwangi Maina & 87 others v Davidson Mwangi Kagiri
    [2014] eKLR

    Proprietary estoppel and constructive trust where vendor reneges; distinguished as a sale case

  • Lloyds Bank PLC v Rosset
    [1991] 1 AC 107

    Proprietary estoppel and constructive trust principles

  • Steadman v Steadman
    [1976] AC 536

    Proprietary estoppel - a party cannot renege

  • Twalib Hatayan & another v. Said Saggar Ahmed Al-Heidy & 5 Others
    (2015) eKLR

    Categories of trusts arising by operation of law; constructive trust as safeguard against unjust enrichment

  • Peter Ndungu Njenga vs. Sophia Watiri Ndungu
    [2000] eKLR

    Courts imply trusts only to give effect to clearly determined intention of the parties

  • Serah Njeri Mwobi v. John Kimani Njoroge
    Civil Appeal No. 314 of 2009

    Equity regards as done that which ought to be done (relied on by appellant)

  • ZAK & another v MA & another
    [2013] eKLR

    Parental responsibility requires a relationship with the child akin to that of a parent

On appeal from
High Court at Mombasa
Matrimonial Property Cause No. 1 of 2016 [Formerly Case No. 207 of 2015]
Jurisdiction invoked
First appeal under rule 29 of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "TMG & another v AP", Case Analysis (2022). Civil Appeal 138 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/612/eng@2022-05-06

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.