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Case Brief · caselaw.co.ke
Supreme CourtAllowedCivil Application 5 of 2020· [2021] KESC 46 (KLR)

MNK alias MNP v POM

Supreme Court of Kenya
16 July 2021
3,485 words in judgment
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AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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Supreme Court allows review of property dispute in cohabitation cases, settling key legal questions.

What this practically means

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The Supreme Court agreed to review a Court of Appeal decision about property acquired during cohabitation. The case involves a woman who lived with a man for years but couldn't prove marriage because she was still legally married to someone else. The Court said this issue affects many Kenyans and needs clear legal rules. It will now decide if the Married Women's Property Act applies to such unions and what remedies are available.

Executive summary

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This was an application by MNP seeking review of the Court of Appeal's decision denying certification of her intended appeal as one of general public importance, and for leave to appeal to the Supreme Court. The underlying dispute concerned property acquired during a long period of cohabitation between the applicant and the respondent. The High Court had declined to presume marriage due to the applicant's undissolved prior marriage, but the Court of Appeal reversed, presumed a marriage, and ordered equal division of the property. The applicant sought to appeal to the Supreme Court, but the Court of Appeal (by majority) denied certification, holding the issues were private and straightforward. Koome JA dissented, finding the matter raised public interest questions about the application of the Married Women's Property Act to unrecognized unions. The Supreme Court granted the review, holding that the issues raised were not frivolous and transcended the parties' circumstances, particularly the question of property acquired during cohabitation or unrecognized marriage. The Court emphasized that in reviewing a certification decision, the focus must be on the majority decision, not the dissenting opinion, and that a dissent alone does not entitle a litigant to review. The Court allowed the application for review and directed the parties to file submissions on two specific issues: whether parties to a cohabitation union or unrecognized marriage can file proceedings under the Married Women's Property Act, and what relief is available. No order as to costs was made.

Key legal issues

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01

Whether the application for review of the Court of Appeal's denial of certification should be granted.

Holding

The Supreme Court granted the review, finding that the issues raised transcend the specific circumstances of the parties and require settlement of the law on property acquired during cohabitation or unrecognized marriage.

Reasoning

The Court noted that the issues raised are not frivolous and indeed transcend the specific circumstances of the parties. The question of property acquired during cohabitation or in a marriage unrecognized by law is an important one for the general public, and the Court cannot shut its eyes to the need to settle the law in that regard. The Court also found it necessary to give guidance on whether proceedings can lie under the Married Women's Property Act in such a situation.

Legal principles established

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  • Review focuses on the majority decision, not the dissenting opinion.
  • A dissenting opinion alone does not justify Supreme Court review.
  • Issues affecting the general public can qualify for certification even if parties disagree.
  • Property rights in cohabitation or unrecognized marriages require legal clarity.
  • The Married Women's Property Act's applicability to cohabitation is an open question.

Court orders

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  1. 1.The Applicants’ application for review of certification and leave to appeal to the Supreme Court dated 4th March 2020 is hereby allowed but only to the extent that this Court has stated.
  2. 2.There is no order as to costs.

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 259
  • Constitution of KenyaArticle 163(4)
  • Constitution of KenyaArticle 163(5)
  • Constitution of KenyaArticle 45(2)
  • Supreme Court ActSection 15
  • Supreme Court ActSection 16
  • Supreme Court Rules 2012Rule 24
  • Supreme Court Rules 2020Rule 33
  • Supreme Court Rules 2020Rule 33(2)
  • Married Women's Property Act (1882)Section 17
  • Judicature ActSection 3
  • Marriage Act No. 4 of 2014
  • Evidence ActSection 119

Cases cited (3)

  • Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone
    [2013] eKLR
  • Town Council Of Awendo v Nelson Oduor Onyango & 13 others
    [2015] eKLR
  • Stanbic Bank Kenya Limited v Kenya Revenue Authority
    [2009] eKLR
On appeal from
Court of Appeal of Kenya
CACA SUP No. 4 of 2019
Jurisdiction invoked
Article 163(5) of the Constitution; Rule 33(2) of the Supreme Court Rules 2020

Key timeline

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2020-03-04
Applicant files for review of Court of Appeal's denial of certification and leave to appeal to Supreme Court.
2020-03-04
Supreme Court allows review, finding issues transcend parties' circumstances.
2020-03-04
Court directs parties to file submissions on Married Women's Property Act and relief for cohabitation.

Practical implications

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For lawyers

Focus on majority decisions in certification reviews

When challenging a Court of Appeal certification denial, your application must show how the majority decision erred, not just rely on a dissenting opinion. Prepare arguments that the issues raised are of general public importance, not merely private disputes. This case sets a precedent for framing review applications.

For businesses

Clarity on property rights in cohabitation

If your business involves property transactions or partnerships with cohabiting couples, this case may lead to clearer rules on asset division. Monitor the Supreme Court's final decision to understand how property acquired during cohabitation is treated, especially when no formal marriage exists. This could affect contracts and inheritance planning.

For individuals

Property rights for cohabiting couples in Kenya

If you live with a partner without being legally married, this case could define your property rights. The Supreme Court will decide if you can use the Married Women's Property Act to claim a share of assets. Stay informed as the ruling may impact how you protect your interests in such relationships.

Frequently asked questions

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What is the MNP v PNP case about in Kenya?+

It's a Supreme Court case about property acquired during cohabitation. A woman lived with a man for years but couldn't prove marriage because she was still legally married to someone else. The Court will decide if she can claim property under the Married Women's Property Act.

Can I claim property if I cohabited in Kenya without marriage?+

This case may answer that. The Supreme Court is reviewing whether the Married Women's Property Act applies to cohabitation or unrecognized marriages. Currently, the law is unclear, but this ruling could set a precedent for property rights in such relationships.

What does certification of general public importance mean in Kenya?+

It's a requirement to appeal to the Supreme Court. The Court of Appeal must certify that the case raises issues affecting the general public, not just the parties. In MNP v PNP, the Supreme Court found the property rights of cohabiting couples are such an issue.

How does a dissenting opinion affect Supreme Court review in Kenya?+

A dissenting opinion alone doesn't guarantee review. The Supreme Court in MNP v PNP said the focus must be on the majority decision. You must show the majority erred on a matter of general public importance, not just that a judge disagreed.

Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "MNK alias MNP v POM", Case Analysis (2021). Civil Application 5 of 2020. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2021/46/eng@2021-07-16

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