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MagistrateDismissedNot stated in judgment· [2023] KEMC 18 (KLR)

Chelugui v Republic; Makori & another (Accused) (Criminal Case E4091 of 2020) [2023] KEMC 18 (KLR)

Magistrates' Court
3 August 2023
2,046 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Nairobi court dismissed a man's bid to stop his alleged wife testifying against him, ruling their unregistered relationship was not a marriage in law.

What this practically means

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Executive summary

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This was a first-instance ruling by Senior Principal Magistrate Esther K. Kimilu at Nairobi on an application dated April 25, 2023 brought under section 127(2)(ii) of the Evidence Act, Cap 80, by which the applicant sought to invoke the spousal exemption so that his alleged wife, the 1st accused in a criminal trial, could not be called as a witness. The court first had to determine whether a marriage existed between the applicant and the 1st accused. Applying section 3 of the Marriage Act, 2014, the court held that only marriages registered under the Act are marriages, and that a presumption of marriage does not create a marriage but only presumes it. Both parties had cited the Supreme Court decision in Mary Nyambura Kangara v Paul Ogari Mayaka (MNK vs POM), which affirmed that the doctrine of presumption of marriage survives in Kenya but is the exception rather than the rule, and set out eight conditions including long cohabitation, legal capacity, intention to marry, consent, holding out as married, the onus on the party alleging it, strong rebuttal evidence, and proof on a balance of probability. The court found the parameters unmet: the 1st accused was a visiting rather than in situ girlfriend, the applicant's affidavit placing him farming in Eldoret contradicted continuous cohabitation, no dowry, joint property, or holding out as spouses was shown, and the alleged children of the union were the subject of the trial. The applicant had also waited until reaching the dock to raise the issue. The application was dismissed for lack of merit.

Key legal issues

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01

Whether a marriage existed or could be presumed between the applicant and the 1st accused for purposes of section 127(2)(ii) of the Evidence Act

Holding

No marriage existed under the five recognized systems and no presumption of marriage arose; the application failed.

Reasoning

The applicant and the 1st accused were not married under any of the five systems recognized by the Marriage Act, 2014, and an unregistered relationship does not become a marriage. The presumption of marriage under section 119 of the Evidence Act requires the applicant to prove the presumed fact. The only supporting evidence was a mention in an investigator's statement and PW2's testimony; PW1 called the 1st accused a girlfriend, not a wife. The applicant's own affidavit, placing him away farming in Eldoret, contradicted continuous cohabitation. No dowry payment, joint property, holding out as spouses, or intention to marry was demonstrated, so the MNK vs POM parameters were not satisfied.

p. 4
02

Whether the applicant's delay in raising the spousal issue affected the application

Holding

The applicant had always been a witness and only raised the spousal issue when he got to the dock, which weighed against the application.

Reasoning

The court noted the case had been running since October 2020 with several witnesses having testified. The applicant had always known he was a witness against the accused persons and waited until he was in the dock to raise the spouse issue, making it potentially too late in the day for the application.

p. 4

Legal principles established

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  • A presumption of marriage does not create a marriage; only a marriage registered in accordance with the Marriage Act, 2014 is a marriage.
  • The doctrine of presumption of marriage still exists in Kenya but is the exception rather than the rule, to be applied sparingly on compelling evidence, per the eight conditions in MNK vs POM.

Court orders

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  1. 1.The application dated April 25, 2023 is dismissed for lack of merit
Jurisdiction invoked
Section 127(2)(ii) of the Evidence Act, Cap 80 (application by a person charged to have spouse not called as a witness except upon application)

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, "Chelugui v Republic; Makori & another (Accused) (Criminal Case E4091 of 2020) [2023] KEMC 18 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2023/18/eng@2023-08-03

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