Gjm v Fsc

5. It was the Plaintiff’s case that he stayed with the Defendant between 2008 and 2018, 10 years and that they were regarded as husband and wife. 6. That during the pendency of the said marriage or cohabitation they managed to acquire several properties enumerated in the summons. 7. The Plaintiff produced several pieces of evidence which included some photographs taken with the Defendant in various places. 8. He also produced an affidavit sworn on 14th August 2013 indicating their relationship. 9. It was his case also that he supervised the construction of various properties and in particular the matrimonial home as well as some rental units. 10. He prayed that he be granted half share of the said movable and immovable matrimonial properties. 11. On her part the Defendant denied that there was any marriage between her and the Plaintiff and that she had employed him as a driver. She said that all the properties were acquired by her and her late husband and never with the Plaintiff. 12. She stated that her business, Zaburi general supplies was incorporated by her and her late husband and that the Plaintiff had nothing to do with it. 13. She testified that the properties were either registered in her name or together with her daughter as well as the business name and nothing with the Plaintiff. 14. On the affidavit she testified that she took the Plaintiff as a friend and nothing more. 15. She therefore prayed for the suit to be dismissed as the Plaintiff in no way contributed to the acquisition of the property and neither was she married to him. 16. The court directed the parties to file written submissions which they complied and the court has perused the same together with the cited authorities. 17. The Plaintiff submitted that he had established the fact that by all intent and purposes they lived together with the Defendant as husband and wife for the ten years. 18. He relied among others on the case of MNK V POM (2023) KESC 2 (KLR) to establish that there was a marriage between him and the Defendant and further that the properties in question were acquired during coverture and he was entitled to half of it. 19. The Respondent on her part denied in her submissions that there was any valid marriage between her and the Plaintiff and that the Plaintiff did not place on record any iota of such evidence. 20. While relying on the above Supreme Court authority (supra) she argued that the Plaintiff did not fulfill the grounds set by the Supreme Court of Kenya and thus there was no valid marriage. 21. To this end therefore and having establish that there was no such marriage the court should also hold that the Plaintiff never made any contribution towards the acquisition of the properties and therefore his claim must fail. Analysis And Determination 22. The twin issues which the parties captured and which I also find germane are whether there was any valid marriage between the Plaintiff and the Defendant and whether or not the Plaintiff in any way contributed towards the acquisition of the properties he claims to be matrimonial. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3670/eng@2026-03-19 2

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23. It is not in dispute firstly that the Defendant was widowed after the death of her husband as evidenced by the certificate of death produced and that she had three children. 24. Secondly there is no evidence of any formal marriage between the Plaintiff and the Defendant either statutory or otherwise. His basis therefore is on long a cohabitation of 10 years. During this period, it is his case that they lived as husband and wife. 25. Other than the photographs produced, and the affidavit there was no other evidence led by the Plaintiff to show that he stayed with the Defendant as husband and wife. 26. There was no witness called to prove that they stayed together in one home or house for that matter. Neither was there any eye witness who saw them working, walking, driving or in any other way being together. 27. He testified that he stayed in the same compound or house with the Defendant for the ten years and it is expected that at least there should have been persons who saw or at least interacted with the couple. 28. Section 3(1) of the Marriage Act 2014 sets out the definition of what is a marriage. It states that; “ Marriage is the voluntary union of a man and a woman whether in a monogamous or polygamous union and registered in accordance with this Act.” 29. Taking cue from the above portion of the act there is no evidence that the two lived in any voluntary union or at all. 30. Section 6 of the Act thereof defines the kinds of marriages recognised under the Act, thus; “ Kinds of marriages 1. A marriage may be registered under this Act if it is celebrated— a. in accordance with the rites of a Christian denomination; b. as a civil marriage; c. in accordance with the customary rites relating to any of the communities in Kenya; b. in accordance with the Hindu rites and ceremonies; and (e) in accordance with Islamic law. (2) A Christian, Hindu or civil marriage is monogamous. (3) A marriage celebrated under customary law or Islamic law is presumed to be polygamous or potentially polygamous. 31. In light of the above provisions of the Act I respectfully do not find any evidence of a marriage between the two. They do not fall within the above type of marriages. 32. In my view the same may have been purely a love affair as admitted by the Defendant in her replying affidavit. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3670/eng@2026-03-19 3

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33. Section 2 of the Marriage Act spells it better when it states that; “ cohabit" means to live in an arrangement in which an unmarried couple lives together in a long-term relationship that resembles a marriage;” 34. So, if there was any relationship between them then it was pure simple cohabitation which does not meet the legal threshold and nothing more. 35. There was no evidence tendered to suggest that the two had any intention to enter into any form of marriage. 36. Although the Plaintiff has dwelt heavily on the presumption of marriage, I think the same does not meet the threshold held by our Supreme court in M.N.K. v. P.O.M; Initiative For Strategic Litigation In Africa (2023) KESC 2 KLR, which laid down the following parameters; “ We find it prudent at this juncture to lay out the strict parameters within which a presumption of marriage can be made: 37. 1. The parties must have lived together for a long period of time. 2. The parties must have the legal right or capacity to marry. 3. The parties must have intended to marry. 4. There must be consent by both parties. 5. The parties must have held themselves out to the outside world as being a married couple. 6. The onus of proving the presumption is on the party who alleges it. 7. The evidence to rebut the presumption has to be strong, distinct, satisfactory and conclusive. 8. The standard of proof is on a balance of probabilities.” The affidavit relied upon by the Plaintiff sworn on 14th August 2013 stated under paragraph three that; “ That we have been staying together as a friend and also working together as friends. “ 38. He went on to state that he had no interest at all with the Defendant’s property. 39. In my view I do not find any probative value in terms of the above affidavit advancing the Plaintiff’s case. It merely stated their friendly relationship and that is all. The mischief they intend to cure when the affidavit was sworn is only known to the two but does not in any way aid the Plaintiff’s case. 40. The next issue is whether in light of the evidence at hand the Plaintiff in any way contributed to the acquisition of any of the properties he desired to have them shared out equally. 41. I have perused the Plaintiff’s oral evidence in court as well as his cross examination and there is no evidence that he participated in acquisition of any of the properties whether movable or otherwise. 42. The assertion that he supervised the construction of the matrimonial home as well as the rental units simply remains an assertion with no formal or factual evidence. No witness was called to testify that he saw him participate either in the acquisition and or development of the same. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3670/eng@2026-03-19 4

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43. My simple conclusion therefore is that the Plaintiff may have participated as an employee of the Defendant and nothing more. Whether he was paid or rewarded for the work he did remains a labour relationship issue. 44. Under Section 107 (1) of the Evidence Act Cap 80 Laws of Kenya, the burden to prove the allegations were upon him which he failed. 45. In any case none of the movable and immovable assets is registered under his name including those acquired supposedly in the ten-year period he claimed to have been cohabiting with the Defendant. 46. For the above conclusion I think there is therefore no need to venture into whether there is any reason to discuss the sharing of the property or at all as contemplated under Section 7 of the Matrimonial Property Act or at all. 47. Further, and even though there was no monetary contribution, this court would have considered nonmonetary contribution by the Plaintiff if at all it had found that there was a marriage between the Plaintiff and the Defendant. 48. In conclusion therefore this court is satisfied that there was no contribution whether monetary or nonmonetary in the acquisition and subsequent developments of the movable and non-movable properties he asserts his claim. 49. For the above reasons I think I have said enough to show that the Plaintiffs claim must fail. He simply was a lover to the Defendant who accommodated him and had their escapades which did not translate to any marriage as wished by the Plaintiff. 50. The suit is dismissed with no order as to costs. DATED SIGNED AND DELIVERED AT NAIROBI VIA VIDEO LINK THIS 19TH DAY OF MARCH 2026. H K CHEMITEI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3670/eng@2026-03-19 5

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