".
"
'\
PROPERTY RIGHTS IN COHAB ITATION UNIONS IN KENYA
Submitted in partial fulfillment of the requirements of the Bachelor of Laws Degree, Strathmore
University Law School
By
[TYloses Muiruri Mun iu]
[OS2n6]
Prepared under I.hi:' supervision of
[January 20 13]
';\1orri CCJ::ni [1 Ii112J
TABLE OF CONTENTS
ACKNOWLED GEMENTS ~ v
LIST OF STATUTES vi
LIST OF CASE S vii
REPORTS .
Vlll
ABSTRACT
IX
1 INTRODUCTION T O TIlE STUI)Y 1
1.1 Statement of problem 2
1.2 Statement of Obj ective(s) 2
1.2.1 Research Question (s) 2
1.3 Theoretical Framework 3
1.4 Literatur e Review 5
l A.l Property right s in cohabitation unions 5
1.4.2 The ro le of the court s w ith regards to propcity rights of cohabitants 6
1.5 Limitations 7
1.6 Hypothesis 7
1.7 .Tust ification of the study ........... ..... .... ..... ...... 7
1.8 Research de sign & Methodo logy 9
1.8.1 Sou rce of data 9
1.8.2 Data co llection 9
1.8.3 Data analysis 10
1.9 Chapter Breakdown 10
2 REGUJJATION OF PROPER T Y RIGHTS IN COHABITAT ION UNIONS IN
KENYA .
12
Laws dealing with property rig hts in marriages in Kenya i 22.1
2.1 .1
2.1.2
2.1 .3
2.1.4
2.1.5
Pre-colon ial Ke nya 12
Colonial Ken ya 13
Independence Kenya ( 1963-20 14) 14
Pos t2010 16
Matrimonial Property Act (2013) J 6
ii
c·
2.1.6 Marriage Act (20 14) 17
2.2 Property rights in cohabitation unions in Ken ya 18
2.2.1 Legal framework on cohabitation unions in Kenya 20
3 COMPARATIVE STUDY ON PROPERTY RIGHTS IN CO HABITATO N
UNIONS BETWE EEN KENYA, ENGLAND AND SCOTLAND
................. ..... ......................... ...... .... 22
3.1 England and Scotland 22
3.2 Histo ry 22
3.3 England 23
3.3.1 Cohabita tion Rights bill 24
3.4 Scotland 25
3.5 Jurisprudential growth for the prot ection of propert y rights in cohabitat ion unions in
England and Scotland 28
4 REGULATION OF PROPERTY RI GHTS IN COHABITATION UNIONS .
32
4.1 Opportunities 33
5 CONCLUSION, FINDINGS AND RECCO MENDATI ONS 37
5.1 Summary of the prob lem question 37
5.2 Findings 37
5.3 Recommendations : 38
5.4 Conclusion 39
6 BIB LIO G:RAPIIY ; 40
iii
DECLARATION
I, Muniu, Moses Muiruri, do hereb y declare that this research is my original work and that to the
best ofmy knowledge and belief, it has not been previously, in its entirety or in part, been submitted
to any other university for a degree or diploma. Other works cited or referred to are accordingly
acknow ledged.
~ r-.;
Signed: t:, / ..
Date: 2.. Z?:: /. .O..sr:../s: ..
This Research Proposal has been submitted for examination with my approval as Unive rsity
Supervisor.
Signed • .•••~.~7 .
Date: :::b"P..j..Q..5 ~ ..
iv
ACKNOWLEDGEMENTS
I would like to thank the almighty God for seeing me through the study.
I would like thank my family for their love and support they have offered me through my life in
Law school.
I would like to express my gratitude to my supervisor Mr. Francis Kariuki for his help in making
my dissertation a success .
v
LIST OF STATUTES
Constitution ojKenya (2010).
Ma rriage Act (Act No. 4 of 2014).
Matrimonial Property Act (Act No . 49 of 20 13).
Loyv ofSuccess ion Act (Act No . 26 of 20 15).
Land Registration Act (Act No. 3 of 20 12).
The Judicature Act (1967) .
Magistrate Courts Act (1967).
The Probate and Adminis tration Rules (1980).
Repealed Marriage Act (1962).
The Native Christian Marriage Ordinance (1904) .
Order in council (1897).
Married rYomen Property Act (1882) .
Family Law (Scot land) Act (2006).
Land Registration Act (England) (1925).
vi
LIST OF CASES
Christopher Nderi Gathambo & Samuel Muthui Munene v Samuel Muthui Munene [2003]
eKLR.
Diwell v FarnessJl959] 2 ALLER 379 at 384(per Ormerod LJ) and 388(per Willmer LJ) .
Cook v Head [1972] 2 ALLER 38.
Eve v Eve [1975] 3 ALLER 697.
Taylor v. Polackw ich 145(1983) Cal. App. 3d 1014, 194 Cal. Rptr. 8.
Ma rvin v Marvin (1976)134 Cal. Rptr. 815.
Jones v Kernott [2011] UKSC 53.
Kivuitu v. Kivu itu (1991) 2 K. L. R. 241.
Cole v Cole (1898) LN.L.R-15.
R v Amkeyo 67 E.A.R.L. 14.
Hot ensia Wanjiku Yawe v. Public Trustee the Court oj Appeal j ar Eastern Africa Civi l Appeal
No. 13 of 1976.
Ma ry Njoki v. John Kinyanjui Mu theru and others Civil Appeal No. 71 of 1984.
Re Ruenj i '.'I Estate, (1977) KLR 21.
Re Ogola 's Estate, (1978) KLR 18.
Hyde v Hyde [L.R.] 1 P. & D. 130 (1886).
Irene Mach aria v. Ma rgaret Wairimu Njomo and another, Nairobi Appeal No. 139 of 1994.
Tabitha Wangeci Nd eritu v. Simon Nde ritu Kariuki (1998) eKLR.
Gow v Grant [2012] UKSC 29.
Lloyds Bank v Rosset, [1989] Ch 350.
Oxley v Hiscock, [2004] EWCA Civ 546.
Stack v Dowden, 2 AC 432 House of Lords (2007).
Kernott v Jones, UKSC 53 (2011).
vii
REPORTS
Kenya National Bureau of Statistics, Kenya Demographic and Health Survey, 2008-2009 .
Kenya National Bureau of Statistics, Kenya Demographic and Health Survey, 2014 .
viii
ABSTRACT
Change is one thing in life that is inevitable. One ofthe changes the world has experienced in the
late 2(/ " century and early 2151 century is the emerge nce of the cohabitat ion institution. 171e Kenyan
Marriage Act takes no tice ofthe change by recognizing the ex istence ofco hab itation unions. This
positive step is negated by thef act that the law goes silent in providingfor ho w property ownership
in this unions should be govern ed. It leads to a case wh ere a cohabitant 's right 10 own prop erly
as enshrined in the const itution is not realized by them.
The situation as exp lained above has been confirmed through the qual itative research carried out
in this paper. The primary so urces ofdata (the statute, books and cases) show that the law goes
silent on the issu es ofproperty rights, and the cases prove that the cohab itees are affected in a
detrimental way . 77,e comparative study on the other hand, supports these papers vieHi that it is
possible to avail property rights to p ersons in cohabitation unions. Scotland has successfully
codified these rights while England has drafted a bill set to co ver these rights.
This paper goes on 10 ident ify the opportunities and challenges which Kenya wi ll face in borrowing
Fum the comp arative stu d y in fonnutating ([ lega l frame I FOrk protecting the property rights of
cohabitants. The paper concludes tha i the solution to this problem will be the leg islators drafting
a law which helps the cohabitees realize thei r righ t to own p roperty as p rovided by the cons titu tion.
ix
PROPERTY RIGHTS IN COHABITATION UNIONS IN KENYA
INTRODUCTION TO THE STUDY
1 Background to the problem
Cohabitat ion under the black' s law dictionary is defi ned as the living together as hus band and
wife. I In Kenya, the law defines it as an arra ngement in which unm arried couples live tog ether in
a long-term relationship that resembles a marriage.' There has been a growth in the number of
couples in cohabitation unions in Ken ya as indicated by a recent study conducted by the Kenya
Nationa l Bureau of Statistics.3 The resu lts presented a picture that there was an increase in the number
of cohabitation unions . One report carried out between 2008 and 2009 , showed that the percentage
of mal es in these unions as being 2. 1% and the female being 4. 1%.4 Another report carried out in
20] 4, showed the percentage of males cohabit ing being 2.1% and the percentage of women
increasing to 5.1%.j
The increase can be attributed to the rural urban migra tion and high cost of living in urban areas,
that make people to stay together to lower the living costs.Ga ther factors include; the fact that some
people are in the process of gett ing a divorce so they cannot many, others drift to cohabitat ion as
their relationships get intimate, while others fino the costs associated with getting married being
high and opt for cohabitation instead.' As it stands in Kenya, persons in cohabiting relationshi ps
do not have their property rights protected by any legislation . Th is stems from, amo ng other things,
the fact tha t these unions are not recognized as forms of marriages,S and do not get the protection
I http ://thelawdictionarv.org/cohabitation/ on 21 January 20 17.
~ Sect ion 2, Marri age Act (Act No. 4 01'2014).
3 Ken ya National Bureau of Statistics, Kenya Demogra phic and Health Survey, 2008 -20 09 and 2014 .
4 Kenya National Burea u of Statistic s, Kenya Demographic and Health Surve y, 200 8-2009 , 37 .
5 Kenya National Bureau of Statistics, Kenya Demographic and Health Survey, 2014, 32.
6 Nigel Lowe and Gillian Douglas, Bromley's Family Law, l l ed, Oxford University press, 20 156-7.
7 Nig el Lowe and Gill ian Douglas, Bromley ' Family Law. 11ed , Oxford University pre ss, 2015 6- 7.
3 Sec tion 6, Ma rriage Ac t (Act No. 4 of 20 14).
1
affo rded to unions recognized marriages." Cohabitants are disadvantaged by the law going silent
with regards to their right of property ownership which they cannot real ize in their unions.
The study will focus on two types of cohabitation unions; the alternative to "marriage" where the
parties in this case resent the traditional notion of maniage, and the premarital cohabitation 10
where the parties live together but have an intention of getting married in the future. Reason being
that this are the mos t stable and the parties in these unions have an intention to have a long-term .
relationship.
It is worth noting that cohabitation unions differ from the other types due to the intention of the
parties, intensity of the relationship and the durat ion of such relationships. An example could be a
scenario where in an alternative to marriage cohabitation, the parties want to be viewed to the
outside world as husband and wife but resen t the normative culture of gett ing married, I I coupled
by the fact that the parties go on to have children .
1.1 Statement of problem
The issue arises where the Kenyan law recogni zes the ex istence of cohabitation unions but fails
to provide proced ures and ways in which propert y acquired during and afte r the coha bitation is to
be distributed or owned. Since these unions are not recogni zed as forms of marriages in Kenya 12
thus the rules on matrimonial prop erty do not appl y to them. 13
1.2 Statement of Objective(s)
The goals and objectives of this research are ;
a) To find out the place of cohabitation under the Kenyan law.
b) To find out the laws that govern property rights in cohabitation unions.
c) To highlight the gaps that exist in the law and recommend solutions to the problem.
9 Matrimonial Property Act (Act No. 49 of 20 13).
10 McG innis. Sandra L. ' Cohabiting. Dating. and Perceived Costs o f Marriage : A Model ofM arriage Entry ' Blackwell
Pub lishin g Lid (2003), volume 65 issue I, 105- 116.
II Nigel Lowe and Gillian Douglas, Bromley 's Family Law, : led, Oxford University press, 20 15, 6-7.
I ~ Sect ion 6, Marri age Act (Ac t No. 4 of 20 14).
13 Section 6, Matrim onial Property Act (Ac t No. 49 of 20 13).
2
1.2.1 Research Question (s)
To achieve the objec tives above the study will seek to answer the following questions;
a) What is the place of cohabitation under the Kenyan law?
b) What laws govern property rights in cohabitation unions?
c) What type of legislative framework should be put in place to govern property rights in
cohab itation unions?
1.3 Theoretical Framework
John Rawls in his theory of justice argues that each person should have equal rights to the basic
amenities and an inequality is only justified where it is to the least advantaged persons. l-l He brings
out the argument that it is discriminatory for the law to provide 'for property rights to unions
recognized as forms of marriages and leave out cohabitation unions. This inequality as put out in
the theory does not serve any advantage but rather serv es to discriminate aga inst couples in
cohabitat ion unions. The same view can be found under formal equal ity, whic h promotes
individual justice and relies upon the proposition that fairness requires equa l treatment.l'This view
was also held by Aristotle in his argument that equality mean s that "things that are alike should be
treated alike." !"
Substantive justice, whic h is par tially distribut ive suggests that measures should be taken to rectify
past discrimination I ? since failing to do this will leave the affected groups at different start ing
points. Eve n though the approach may seem like ind irect discriminatio n, according to Rawls theory
explained above , the inequality is justified. In essence, the remedy to this prob lem requires the law
to restore equality. Going back to the old common law, we find that property rights were infringed
by the mere fact tha t the courts then saw cohabitation as being immoral. The court in the case of
Diwell v Farn ess, IS saw cohabitation as being immoral. Even if there exis ted a contract on how the
1-1 http://w w w.ohio.cdu /pcoplc/piceard/cll trop v/ rawl s.h tmI On 7 February 20 17.
15 Aekr ill. J. L. and Urrnso n J. O . ' 3 Ethica Ni co machea' , 112-117, 1131 a- 113 1b Oxford University Press , 1980.
16 Wesson. Mu rray. " Equality and social rights : an explor ati on in light o f the South A fri ca n Co nst itutio n" . Public
Law, 2007, 751.
17 http://thel awd ietionarv.org/substanti ve-Iaw/ On 14 February 2017.
IS [1959] 2 A LLER 379 at 384 (per Ormer od LJ) and 388(per Willmer LJ).
3
property was to be distributed, the courts refused to enfo rce those rights due to the fact that the
contract was a creature of an illegality, but this view changed in the recent past. 19
The theory ofj ust ice advanced by David Hume, talks abo ut the ' is ' and ' ought-to be' dist inction.f"
He argues that there exists a gap between val ues and facts, and one cannot deduce what 'ought-to
be' (va lues) from what ' is ' (factsj. r" What ' ought-to be' is set out in man's nature which is
gove rned by morality, while what ' is' are the facts which exists but do not justify man taking them
up as ' what ought to be'. In relation to cohabitation, what ought to be from a mora l point of view
is a marriage. This theory thus argue against the union of cohabitation.
Aristotle argues that justice has to do with the proportionate ratio of commensurable goods ." In
the sense that one gets what 's proportionate to their input. For exa mple, one gets a wage which is
proport ionate with their work output. This theory supports the view that there should be property
rights in cohabitation unions . The proportionality idea dictates that a party should be able to get an
output equivalent to their input. It essentially means that parties in a cohabitation union should be
allowed property rights in relation to what they bring in to the union.
Nevertheless, the old perc eption has been changed. In the case of Taylor v Polackwich, 23 the court s
exerc ised judicial activism where they used the rules of equit y to resolve the disput e in the
cohabitation union since the laws had provided nothing. 24 This approach of judicial activism
clea rly shows that there is a gap in law to be filled, with regards to property rights in cohabitation
unions .P The only issue is that there is no codification of these rules thus making the situation
19 Mar vin v Marvin [1976] 134 Cal. Rptr. 8 15.
20 Hor acio Spector ' Humc 's Theory of Justice ' (20 14) , Volum e 5, 48 .
21 Horacio Spector ' Humes Theory of Ju st ice' (20 14). Vo lume 5. 48 .
22 Anton-Herma nn Chro ust & Dav id L. Osb orn ' Aris to tle 's Co ncept ion o f j usti ce' Notre Dame Law re view ( 1942 ), 17
vo lume issue 2, page 130. Also available at htlp://scho lars hip.iaw.nd.edu/ndlr/voI 17/is s2/2 .
23 (19 83) Ca l. App . 3d 1014 , 194 Cal. Rptr. 8.
24 Jeffrey S. Rosen, 'Ta ylor v. Polackwich : Property Right s of Unm arried Co habitants - From Mar vin to Equity '
Go/den Gate Universi ty Law Review (January 1984), vo lume 14, Artic le 14.
~ 5 Je ffrey S. Rosen . 'Taylor v. Polackwich : Prop erty Right s of Unmarried Co habitants - Frorr Marvin to Equity '
Go/den Gate University Law Review (Ja nuary 1984), volume 14, Article 14.
4
uncertain and leaving most couples at the mercy of the court. In the case of Cook v Head/" the
court held that property rights should be settled as if the cohabitants were married if they intended
to. In the case ofEve v Eve,27 Lord Denning was of the opinion that the efforts taken by the woman
to improve the cohabiter 's house was enough to create a benefi cial interest in her favo r, essentially
creating a constructive trust without necessa rily establishing the intent ions of the parties.
In Kenya, the situat ion is more or less the same . In the case of Christopher Nderi Gathambo &
Samuel Muthui Munene v Samuel Muthui Munene,28 the court in its judgme nt showed a progressive
nature by borr owing refence to two progressive English cases.r" In Netherlands for example,
cohab itation is granted the same status as marriage and the partie s to it enjo y all the rights and
freedoms of married couples.r''
1.4 Literature Review
The literature will be reviewed thematicall y, the themes being; property rights and the role ofcourts
in cohabitation unions.
1.4.1 Property rights in cohabitation unions.
In the j ournal article ' Prope rty Rights Between Unmarried Cohabitants , 3 1 the author brings out the
aspect of the existence of property rights in a cohabitation union. He states that the probl em arise s
when the coupl es are splitting up and trying to distribute the property, especially if they did not
have a contract. The journal article fails to provide a solution to the probl em it puts out. This study
will address the problem cont extual izing it to Kenya. It will also go ahead and offer an answer to
this probl em.
26 [1972] 2 ALLER 38 .
27 [1975] 3 ALLER 697.
28 [2003] eKLR.
29 Eve v Eve [1975] 3 ALLER 697 and Cook v Head [1972] 2 A LLER 38.
30 https://www.government.nl/topics/fa m iIv-Iaw/co ntents/marr iage-registered-pm1nersh ip-and -
cohabitationazre erne nts On 6 December 20 16.
31 Ro bert C. Angerme ier, ' Property Rights Between Unma rried Co habitants ' in diana Law Journal. (Winter 19'/5),
Article 14.
5
In the book, Bromley's Family law, the author focuses on cohabitation in the United Kingdom and
how the laws and jurisprudence has changed to accommodate these unions.F The overriding theme
of the book with regards to cohabitation is that change is inevitable and the society should
appreciate this change by drafting laws regulating these unions on matters like property rights an
approach currently being undertaken in the United Kingdom. The study will address the situation
in Kenya with regards to cohabitation unions, looking at specifically at what the laws say about
property rights of parties in this union.
In the book , Property law,33 the authors put forward the fact that persons in a marriage have equal
rights extending to their ownership of property. r'This aspect is instrumental in informing how
property rights in cohabitation unions should be viewed, a fact addressed in this study. The authors
fail to talk about the issue property rights ofparties in cohabitation unions. This study will however
address the right to property ownership in cohabitation unions comprehensively.
The recognition of property rights in cohabitation unions, will more or less give them the same
status quo with marriage. This view is criticized in the journal article 'Marry Me, Bill: Should
Cohabitation Be the (Legal) Default Option ?,35 The authors focus is on whether cohabitation
should be given the same status as marriage. They in the end come to a conclusion that it should
not be granted the same status since this will break the whole essence of a marriage which is the
basic family unit. This study will prove that this view advanced by the journal to be un true , by
showing that this two unions are mutually exclusive. The recognition of property rights III
cohabitation unions as it's the case in marriages does not in any way affect the institution of
marnage.
1.4.2 The role of the courts with regards to property rights of cohabitants.
The courts have taken a much progressive view in dealing with property rights in cohabitation
unions. This can be seen through its jurisprudence. In the journal article ' Property Rights of
32 Nigel Lowe and Gillian Douglas, Bromley 's Family Law, 11cd, Oxford University press, 20 15.
33 Francis Kariuki , Sm ith Ourna and Raph ael Ng 'e tich, Property law, Strathmore University Press,20 16.
34 Francis Kariuki, Smith Ourna and Raph ael Ngetich, Property law, Strathmore University Press,20 16,275.
33 Brinig. Margaret F. and Noc k, Steven L.. "Marry Me, Bill : Should Cohabitation Be the (Lega l) Default Opti on?'
Scholarly Works (2004), paper 633.
6
Unm arried Cohabitants - Nothing New under the Sun ,36 the author focuses on the approach the
courts in Americ a have taken towards cohabitation unions. He uses the case of Marvin v Marvin, 37
where the courts vacate the view that cohabitation unions are immoral and appreciate their societal
acceptance and change. Hc concludes that a change like cohabit ation should be appreciated and
laws shou ld be drafted in relat ion to prope rty rights in this unions.
In the case of Christopher Nderi Gathambo & Samuel Muthui Mun ene v Samuel Muthui Munene,38
the court s apprec iated the change in the ownership of property rights by coh abitees. It quoted two
Eng lish cases which had adopted a more progressive attit ude to this ma tter, where the courts were
of the view that property ho lding between the part ies who were cohabi tees wa s simi lar to propert y
holding marriage." In the other, case the court held the opinion that a resulting trust can exist in a
cohabitation relationship." appreciating that times have changed and it is time for prop erty right s
in cohabitat ion unio ns to be realized.
In the journal art icle ' Tay lor v Polackwich: Property Rights of Unmarried Cohabitants - From
Marv in to Equity ' ,4 1 the author stresses the point that the statuto ry law does no t provide viable
remedies in instances wh ere there is a dispute on pro pert y right s in a cohabitat ion. His vie ws are
that courts should provide equ itable remedies as they did in the case of Taylor v Polackwich.t:
1.5 Limitations
a) There exists limited legal documentati on in Kenya in relation to matt ers pertaining prop erty
rights in cohabitation.
36 Alexa nder C. Morey and Dixie Grossman, 'P ropert y Rights of Unmarried Cohabi tants - No thing Ne w unde r the
Sun ' (20 12). volume 25.
37 [ 1976] 134 Cal. Rpt r. SIS.
38 [2003] eKLR.
39 Cook I' Head [1972] 2 AL LER 38.
40 Eve v Eve [1975] 3 ALLER 697.
4 i Jeffrey S. Rosen, ' Taylor v. Polackwich : Prope rty Rights of Unmarried Cohabit ants - From Marvin to Equi ty '
Go/den Gate University Law Review (Jan uary 1984.\, vo lume 14, Article 14.
42 [1983] Ca l. App . 3d 1014,1 94 Ca l. Rptr. 8.
7
1.6 Hypothesis
The lack of laws recognizing and protect ing property rights in cohabitat ion unions, wo rks to the
disadvantage of the cohabitant s .
1.7 .Iustificarion of the study
Under common law, co habitation unions were seen to be immoral. In the case of Diwell v
Farness /" the court he ld tha t a woman cannot claim interest in prop erty held togeth er with a man
she has been living with, by spelling out an agreement that they should buy it as a joint venture.
The contract was doom ed to fai l du e to the fact that it was unen forceable since it was founded Oil
an imm oral co ns ideration , wh ich was the wo ma n bei ng the man 's mistress."
In the case of Christopher Nderi Gathambo & Samuel Muthui Munene v Samuel Muthui Munene/" the
presiding j udge was of the op inion that: the attitude by the courts was based on the o ld common
law position tha t extra marital cohabitation was considered wrong and therefore no legal righ ts .
woul d accrue to thern .: " it is a reflec tion on the attit ude of the society in seeing the on ly stable
forms of relationships being marriage: rJ "( he court felt that in giving rights that exists only ill
marriage, then the institu tion of marriage would be weakened."
Courts have vacated the view he ld in Christopher Nderi Gathambo & Samue l Muthui Munene v Samuel
Muthui Munene." This is evident as seen in the new j urisp rudence (which tri es to p rotect cohabitees
propert y rights), ar isin g from the judge ' s judicial ac tiv ism. A good examp le woul d be cases where
judges use the principles of equity to resolve issues aris ing in coh abitation not covered by the
statutory law." The approach taken by the COUlt in the case of Tay lor v Polackwich'" clearly shows
43 [1959] 2 ALL ER 379 at 3S4( pcr Ormerod LJ) and 3 ~8 (per W il!mcr LJ).
~4 Nigel l.ow e and Gill ian Dougl as, Bromley 's FClI/l iZV Law, II ed , Oxford Univers ity press, 20 15,6-7.
~5 [2003] eKLR.
46 Christopher Nderi Gathambo & Samuel Muthui Munene I' Samuel Muthui Munene [2003] cKLR.
47 Christopher Nderi Gatham bo & Samuel Mu thu! Munene v Samuel Mutliu i Munen e [2003] eKLR. 48
Christopher Nderi Gathambo & Samuel Muthu i Munene I ' Samuel Muthui Munene [2003] cKLR.
48 [2003] eK LR.
49 Taylor v Polackwich (1983) Cal. App. 3d 10 14, 194 Cal. Rptr. S.
50 Ca l. App. 3d 1014, 194 Ca l. Rptr, S.
8
that there is a gap in law to be filled , with regards to protecting property rights of part ies in
cohabitation unions.51 This view has sinc e been vacated by English courts, which have now
adopted a liberal approach in developing property rights for cohabitees. It can be seen in the case
of Cook v Head.i! where the court held that property right s should be settled as if the cohabitants
were married if they intended to.53
In another case, the judge was of the opinion that the efforts taken by the woman to improve the
cohabiter ' s house was enough to create a benefi cial interest in her favor. 54 Thus in esse nce creating
a constructive trust withou t necessarily estab lishing the intentions of the parties. Currently
Scotland has a legal framework protecting cohabitees property rights.55 In England, on the other
hand there is a Cohabit ation Rights bill. If the bill is passed into law, it will provide a legal
framework for the protection of the cohabitees propert y rights .i"
The approach tak en in Scotland and Engl and to prot ect the property right s of cohabitant s clearly
shows that there was a problem at first ill not protec ting them. This probl em sadly is still in
exist ence in Kenya where the law is siicnt on these right s This makes a compell ing case for our
courts and law makers to develop mechani sms to protect the prop erty righ ts of cohabitants.
1.8 Research design & Methodology
A qualitative resea rch will be used to look into. the matter of property right s in cohabitation unions.
1.8.1 Sourc e of data
The research data will be sourced from pnmary and secondary sources ofdata . The primary sources
of data being the mun icipal laws the constitution being the highest of those laws, the Acts of the
national assembly, books and Kenyan cases. The secondary sources data will be obtained from the
internet , reports and cases from other jurisdictions.
51 Je ffrey S. Rosen , 'Taylor v, Polack wic h: Prop erty Righ ts of Unma rried Co hab itan ts - fro m Marvin to Equity'
Co /dell Gate University Law Review (Ja nua ry 1984), volume 14, Artic le 14.
52 [1 972 ] 2 ALLE R 38.
5.1 Cook v Head [1972] 2 A LLER 38.
54 Cook v Head [1972] 2 ALLER 38.
55 Family Law (Sco tland) Ac t (2006 ).
56 Nigel Lowe and Gi llian Douglas. Bromle y ' s family Law, Oxford II edition, 20 15. 6-7 .
9
The research will also conduct a comparative study, which will look at the legal framework set up
in Scotland and Eng land to pro tect cohab itees property rights .
1.8.2 Data collection
This will involve accessing the library to get reading materials which form part of the primary
sources of data. It will also incl ude desktop resea rch, accessing the internet to access my secondary
sources of data.
1.8.3 Data analysis
The analysis of the collected data is going to be contextualized to the situation in Kenya, and
limi ted to matters of property rights in cohabitation unions. This mode is convenient for any legal
research study as most of the material is contained in literature and as such the researcher
undertakes the research based on that information.
1.9 Chapte r Breakdown
The dissertation will have five chapters.
Chapte r one: In t roduction to the study
It is the research proposal which comprises of: the background to the problem; the research
question; the theoretical framework; the literature review; the limitations; the hypothesis; the
justification of the study, and the research methodology to be used.
Chapter two: Regulation of property rights in cohabi tation unions in Ken ya
Will focus on the legal framework surrounding the property rights of cohabitees in Kenya.
Chapte r three: Comparative study on property ri ghts in cohabitation unions in
England and Scotland
Will deal with the comparative study, which will look at the legal framework which exists in
England and Scotland to protect the property rights of cohabitants. It is go ing to be between the
laws of Kenya, Eng land and Scotland. This comparative study seeks to show lessons which Kenya
can learn from the two jurisdictions which have dealt with the issue of property rights in
cohabitations.
10
Chapter four : Lessons learnt from the comparative study
Will look at the opportunit ies presented from the comparative study which Kenya can emulate and
borrow . Also, it will look at the challenges that Kenya will face in borrowing from these laws.
Chapter five: Conclusion, Findings and Recommendations
This is going to be the final chapter of the dissertation, which is going to provide a conclusion
which will be in summary an answer to the problem question. Also, it will have polic y
considerations bon-owed from legal frameworks of England and Scotland. It will be
recommendations to the Kenyan legislators to take into account in formu lating the relevant laws
which will facilitate the recognition of property rights in cohabitation unions.
11
CHAPTER 2
REGULATION OF PROPERTY RIGHTS IN COHABITATION UNIONS
IN KENYA
2 Introduction
This chapter interrogates the regulatio n of property rights in cohabitation unions in Kenya by
looking at what the laws pro vide for with regards to this unions. The laws which are go ing to be
looked at are: The Constitution of Kenya 20 I0, which is the supreme law of the land . It pro vide s
a bas is from wh ich laws in relation to the rights it affords are created. In relation to this research
the right to marry provides a basis for the enactment of laws which governs the union; the Ma rriage
Act 2014, provides a legal framework which helps in the realization of the right to marri age ; the
Matrimonial Prop erty Act 2013 , pro vides a regul ation by which the right to property arising from
the right to ma rriage is protected in these unions.; the Land Regis tration Act 20 12, pro vides ways
in which one can rea lize thei r right to propert y in land and goe s on to protect the right s once they
are acquired.
2.1 Law s dealin g with property rights in marriages in Kenya
Thi s part of the dissertation looks at tbe laws governing property rights marriages specifically
customary ma rriages in three phases; pre-co lonial period , colonia l period and independence period.
Reason being that there exist other forms of marriages in Ken ya"(Muslim, Hindu , Christian and
Civil marriages) and due to time constraints, the study will not be able to address all of them.
2.1.1 Pre-colonial Kenya
Marriage in pre-colonial Kenya was governed by cus tomary law. 58 These laws differed from
community to community, and as a resu lt this meant different propert y rights for the married
coupl es.r" The uniting factor of the African communities was their patriarchal nature whi ch was
st Section 6, Marriage Act (ACI No. 4 of20 14).
; 8 https://www .theplatfonn.co.kei?p=3 85 Accessed on 3011 /20 18.
; 9 https://www.theplatform .co.ke/?p=385 Accessed on 3011 /20 18.
12
chauvinistic favoring men over women.r? This patriarchal nature was reflected in the distribution
of property rights in marriages, where men had an upper hand compared to women. In addition to
that , women were viewed as property of the husband. For example, in levirate marriages the wife(s)
of the deceased husband were inherited by their brother."! In Kenya, the leviratic marriages were
practiced among the Luo community. The practice of wife inheritance was widely accepted by
women because the culture and custom did not allow women to own or control any resources (such
as land and cattle).62
The patrilineal descent system used for purposes of inheritance disfranchised women. This system
meant a wife(s) who did not have a son would have a hard time inheriting their husband's
property.F To conclude its quite clear that customary law which governed marriage in the
precolonial period was to a large extent discriminatory and promoting gender inequality, to the
detriment of women in the marriages.
2.1.2 Colonial Kenya
The coming of the European settlers marked a turning point in the customary law in Kenya which
in tum affected the marriages contracted under these systems. To start with, the British settlers
enacted the Order in Council which under section 52. The law required customary law to be applied
only to the extent that it was not repugnant to justice or morality.v' Africans who decided to
contract Christian marriages were governed by the Native Christian Marriage Ordinance. f and
were taken to have abandoned the traditional ways . This was seen in the case of Cole v Cole,6667and
60 Kenda Mutongi , 'Worrie s of the Heart Widows. famil y. and Community in Kenya' Chicago: University of Chicago
Press (2007),66.
61 Kenda Mutongi. ' Worr ies of the Heart Wid ow s. Famil y. and Community in Kenya' Chicago: University of Chicago
Press (2007) ,66.
6~ Claire Hildebrand and Jessica Lewi, ' Wife Inheritanc e Kenya ' . (20 13). page 2.
63 Edwins Laban Moo gi Gwako, 'Widow Inheritance among the Maragoli of Western Ken ya 'Jo urnal 01
Anthropological Research ( 1998), 173 .
64 Article 52, Order in council (1897).
65 The Native Christian Marriage Ordinance ( 1904) .
66 l.N.L.R-15 (1898) .
67 E.A.R.L. 14.
13
R v Amkeyo. /1 In these two cases, the courts held that once a person contracted a marriage under
statute, customary law stopped applying to them in matters such property rights .
The colonial government went ahead to revise the court system relating to the indigenous Africans
with the lowest courts being a panel of elders from native law or area and whose decisions would
be appealed at the Native Appeals Tribunal, the District Commissioner and lastly to the Provincial
Commissioner.f This created the legal framework which governed the customary marriages in
colonial Kenya.
2.1.3 Independence Kenya (1963-2014)
After independence, the Judicature Act was enacted which recognized customary law as a source
of law in Kenya, to the extent that it was applicable and not repugnant to justice and morality or
inconsistent with any written law .69 Kenya 's court system changed after independence with the
enactment of the 1967 Magistrate Courts Act which converted the African Courts to Magistrate
Courts. j" This broadened the jurisdiction of the courts from listening to matters gov erned by
customary law only to matters governed by statute. Th e Judicature Act and the Magistrates Cou11
Act limited the application of customa ry law to civil matters and only to the extent that it was in
line with the law ." Common law and doctrines of equity were also cited as sources of law in
Kenya.f
At common law, long cohabitation created a rebuttable presumption of law that there was the
existence of marriage. The common law presumption was applied in the case of Hotensia Wanjiku
Yawe v. Public Trustee the Court of Appeal f or Eastern Africa.t! In that case, the court held that
long cohabitation as man and wife gives rise to a presumption of marriage in favor of the appellant
and only cogent evidence can rebut such a presumption. The decision was upheld in the case of
68 Fra ncis Kariu ki. ' Customary Law Juri sprudence fro m Kenyan Courts: Implicatiuns lo r Trad itiona l Justice System s'
page 3.
69 Section 3(2) , The Judicature Act ( 1967).
70 Francis Kariuki, 'Customary Law Jurisprud ence from Kenyan Co urts: Implication s lor Trad itional Justice Systems ' .
71 Sect ion 3(2 ), The Judicatu re ACI ( 1967) and Secti on 2, Magist rate Courts Ac t (196 7).
7~ Secti on 3( I, c), The Judicatu re rlCI ( 1967).
73 Civil Appea l No. J3 of 1976.
14
Ma ry Njoki v. John Kinyanjui Mutheru and others,74 where the COUl1 held that " there has to be
evidence that the long cohabitation is not a mere friendship between a man and a woman, that she
is not a concubine but that it is presumed there is a marriage" . Among other things, the presumption
of marriage hel ped secure the property rights of the persons in that union. It can be explained by
the fact that one's the union was presum ed to be a marri age; the property was to be governed by
the Married Wom en 's Property Act (1882).
Persons married under the Repealed Ma rriage Ac t were prohibited from cont racting any other form
of marriage.75 This view of the Jaw was seen in the case of Re Ruenj i 's Estate /" where the judge
reasoned thar wom en marr ied under customary law by a man who had previously married under
statute are not wives and their children are not children for the purposes of succession , and they
are not therefor e entitled to share in the estate of the deceased.
It was also see n in Re Ogola 's Estate,77 that a man who is married under the Africa n Chris tian
Marriage and Divorc e Act is barred from contract ing any other marri ages durin g the pendency of
their statut ory marri age. Any marri age so contracted is nu ll and void, and the woman so married
is not ent itled to inherit in the intestacy of the deceased man . The courts interpretati on of the law
made it clear that statutory marriages were to be mo nogamous.
The two cases above show that women 1Il un ions which we re void had no right s acc ruing from
such unions. In 1981, parliament added section 3(5) to the Law of Succession Ac t, which stated
that 'Notw ithstanding the provisions of any other written law, a wo man married under a system of
law which perm its polygamy is, where her husba nd has contracted a previous or subsequent
monogamous marriage to another woman, neverth eless, a wife for the purposes of this Ac t, and in
particular sections 29 and 40 thereof, and her children are accordingly children within the meaning
of this Act. ' Under the Act, the second woman who for the purp oses of th is statute." is con sid ered
a wife and has a right to clai m as a dependent of the husband ' s estate . If there we re children
74 Civi l Appeal No. 7 1 of 1984 .
75 Section 37, Repea led Marriage Act ( 1962) .
76 ( I977) KLR 2 1.
77 (19 78) KLR 18.
78 Law ofSuccession Act (Act No. 26 of 20 15).
15
between the second woman and the dec eased man. The children will have right to be included in
the testators will , they do not nee d to proof that they were depend ents of the testator.79
Arguably, this was a silver lining to women in unions where the man had already contracted a
ma rriage under the Marriage Act ,30 this meant their marriage was vo id by operation of the law. At
the very least, their property rights when the husband demised we re protected. In the case of Irene
Macha ria v. lvlargaret Wairimu Njomo and another /" Justices Omolo, Tunoi and Bosire held that
the function of section 3(5) of the Law of Succession Act was to protect women who man)' men .
under customary jaw , who arc already married or who subsequently marry other women under
sta tute. The woman married under customary law is regarded as a wife for successio n purposes.
When a woman is recognized as <J. wi fe under the Law of Succession Act they automatically fall in
the definition of a dependen t as pro vided in section 29 of the same statute. As a dependent, the
spouse can approach the court to enforce thei r right to a reasonable pro visi on from the estate of the
deceased husband . In the instance that rhe husband die s intestate, the woman has a right to object
a grant application and protest its con finuati on.f In add ition to that the y have a right to apply for
a grant of letters of admi nistrati cn"
2.1.4 Post zm (I
In August 20 10, Kenya ushered in a Co nstitu tion which had provisions relating to marriage. It
provides that parties to a ma rriage are entitled to equal rights at the time of the ma rriage, during
the marriage and at the dis solution of the marriage.r' This wa s R change from the previous marriag e
regime where equality wa s not expr ess ed by the law through a statute but rath er developed by
judges in their jurisprudence .35
79 Secti on 26 S: 29, Law ofSuccession A CI ( ACT No. 26 of 20 15).
so Marr iage Act (Cap 1:'0 1962).
SI Nairo bi Appeal No. 139 of 1994.
' ~ Rule 15, The Probate and Administration Rilles ( 1980).
S3 Section 66, Law ofSuccession Act (Act No. 26 of 20 15).
84 Article 45 (:1), Constitution ofKenya (20 I0) .
ss Kivuitu v, Kivuitu ( 199 l ) 2 K. L. R. 241 & Tabitha Wangeci Nderi tu v. Simon Nderi tu Kariuki ( 1998 ) eK LR.
16
2.1.5 Matrimonial Property Act (2013)
The Matrimonial Property Act came into force in 20 13, it applies only to pro perty in a marriage.
The statute states, des pite an y other law, a married woma n has the same rights as a marri ed man.86
Thi s brings out the aspect of equa lity between the spouses which extends to the property tha t they
own toget her.V The distribution upon divorce is not equal per se bu t dep endent on what each
spo use contribu tes towards the acquisition of the property.f Customary law shall be considered
during the distribut ion of the property to the extent that it is not incons istent with the constitution. "
The statute provides that there is a rebuttab le presumption that property acquired during marriage
in the name of one spo use is held in trust for the other spouse. " Where the pro perty acquired is
held in thei r joint names then there is a rebuttab le presumption that the propert y is held in equal
shares."
2.1.6 Marriage Act (2014)
20 14 marked an epoch in [he marriage regime with the enactmentof the Marriage Ac t. The law
con solidat ed all the marriage laws into one statute . The act made changes to customary marriages
to try and cure the m ischi e fs which were in ex istence; inequality in the right s if the parti es, the
non-recognit ion of the marriages 3:' being polygamous, and the lack of registration of customary
marriages.
The first one is equ ali ty in Marriages. As discu ssed earlier in th is chapter, cus tomary law was
detrime ntal towards women on the issue of property righ ts.92 The society based on a patrilineal
descent system of inheritance, excl uded wom en from inherit ing their husband ' s pro pertyif they
died. In the Marriage Act of 2014, equality has been underscored.?" It states that, ' Parties to a
,6 Sect ion 4, Matrimonial Proper ty ACI (Act No. 49 of 20 (3) .
Si Francis Kariuki, Smith Ouma and Raphael Ngetich, Properly law, Strathmore Univers ity Prcss.Zt)16,275 sr.d
Section 4('1), Matrimonial Properly ACI (Ac t No. 49 of2( 13).
88 Franc is Kari uki. Smith Ouma and Rap hael Ngerich, Property law, Strathmore Unive rsity Press,20 16.275.
89 Section I J, Matrimo nial Properly ACI (Ac t No. 49 of20 13) .
90 Section 14(a), Mat rimonial Prop erly ACI (Act No. 49 of20 13).
91 Sect ion 14(b), Matrimo nia l Prop erly Act (Ac t No. 49 of 20 (3) .
92 Claire Hildebrand and Jessic : Lew i, 'W ife Inheritance Kenya' . (20 13) page 2. st
Section 3(2) , Ma rriage ACI {Act No. 4 of 20 14).
17
marri age have equal rights and obligatio ns at the time of the marri age, during the marriage and at
the dissolution of the marriage .' This equality extends to spouses in a customary marriage.
Secondly, the Act recognizes customary marri ages to be potentially pol ygam ous." Thirdly, under
the Act customary mani ages are required to be registered. 94 Registration is required for the
purposes of proving the existence of the marriage in the first place. This feature did not exist in the
previous marriage regime. Customary marriages celebrated in the fanner regime are still required
to be registered in line with the Marri age Act 20 14 . The statute requires that customary marriages
not registered under the old marriage regime, sha ll apply to the Registrar or Co unty Registrar to
assistant Registrar for the registration of that maniage under the Act within three years of the
coming to force of the Act.95
The requirement of regis tratio n was emphasi zed by the Kenya 's Atto rney Ge neral Githu Muigai's
gazette notice.'J6 It essentially stated that ail customary marriages should be registered by August
1,2017. This brings the question what will happen to the customary ma rriages whic h will not be
registered in line with the timelines given in the gaze tte not ice. A marriage the Ma rriage AC1 is
voidable if it is not registered. 'J7 The statute goes on and provides the requirement fo r the
registration of a cus tomary marriages. 9~ Lack of reg istration of these uni ons does not render them
invalid because the law prescribes that , a marri age may be proven in Kenya if it was celebrated in
a public place of worship but its regi stration was not required, by an entry In any register
maintained at that publi c place of worship or a cert ified copy of such an entry. "?
The Marriage Act goes on to define coh abi tation as au ar range ment where an urun arried couple
lives togeth er in a long-term relationship which resembles a marriage. 100 There is no ambiguity in
93 Section 6(3) , Marriage -lcr (Act No. 4 of 20 14).
9~ Secti on 6, Marriage Act (Act No. 4 of20 14).
05 Sect ion 96, Marriage .-leI (Act No. 4 of 20 14) .
96 Gazette Notice Number 5345 dated 9th June 20 17.
97 Section 12(e), Marria ge Act (Act No. 4 of 20 14).
98 Sect ion 55 , Marriage AC I (Act No.4 of20 141.
99 Sec tion 59. Marriage lIel (Act No. 4 of 20 14-).
100 Section 2, Marriage ACI (Act No.4 of 20 14).
18
the law between what a cohabitation union is and what a marriage is. Under the law cohabitation
is recognized but the law goes silent on provisions regarding property rights in these unions.
2.2 Property rights in cohabitation unions in Kenya
Courts have tried to develop jurisprudence with regards to property rights in cohabitation unions.
At first common law viewed cohabitation as seen in the case of Hyde v Hyde.101 In this case, the
court held that a marriage, as understood in Christendom, may be defined as the voluntary union
for life of one man and one woman, to the exclusion of all others . The court viewed unions such
as cohabitation as living in sin and strongly disapproved them.
This view changed with time as reflected in the jurisprudence the COUl1s went on to create. In the
case of Eve v Eve, / 02 Lord Denning was of the opinion that the efforts taken by the woman to
improve the cohabiter 's house was enough to create a beneficial interest in her favor, in essence
creating a constructive trust. A similar form ofjudicial activism was found in the case of Taylor v
Pola ckwich, /03 where the court used the rule s of equity to resolve the dispute in the cohabitation
union since the laws did not provide for an ything. 104
Jurisprudence in Ken ya on property right s in cohabitation unions can be seen in the cases of
Hotensia Wanjiku Yawe v. Public Trustee the Court ofAppealfor Eastern Aji-ica /Oj and Mary Njo ki
v. John Kinyanjui Mutheru and others. /116 It was established in these two cases that there is a
presumption of marriage from a long cohabitation. This study constructively construes that , the
presumption of marriage allows the parties in the union which was at best a cohabitation, to be
governed by the Married Women Property Act 107 which protect their property rights. To bring it
into perspective, this was a positive step towards protecting cohabitees property right s. Reason .
being the law did not provide for property rights in cohabitation unions and the presumption of
101 [L.R.] I P. & D. 130 (1886).
102 [1 975] 3 ALLE R 697 .
103 ( 1983) Ca l. App . 3d 1014 , 194 Ca l. Rptr, 8.
IQ-l Jeffrey S. Rosen . ' Taylor v. Polackwich: Propert y Right s of Unma rried Cohabitant s - From Marvin to Equ ity '
Golden Gate University Law Review (January 1984) , volume 14, Article 14.
105 Civi l Appea l No. 13 of 1976.
106 Civil Appeal No. 7 1 of 1984.
107 Marri ed Women Property Act ( 188 2).
19
marriage meant the property was to be treated as matrimonial property and thus governed by the
Married Women Property Ac t.
In the cases of Re Ruenji 's Estate' P" and Re Ogata 's Estate's" wh ere it was held that a man lacks
the capacity to enter into a customary marriage if he has contracted a marriage under statute.U'Tn
these two cas es the second marriages were declared null and void with no rights accruing from
them.
These women would at best be considered to be in a coh abitation union since what they had with
the husband was not a marriage. It is worth noting that under common law , cohabitation was
between a man and a woman, but this chapter for argument' s sake will con sider the women to be
in cohabitation despit e the fact that the men were alread y married.
Wom en in cohab itation were left out in the col d sin ce with thes e un ion s the law went silent wit h
rega rds to pro tection of the spouses ' property right s. Parli am ent added a sec tion to the Law o f
Success ion Act, I II which now protected the women by considering them as wife(s) for succession
purposes . Arguably th is was a positive step towards safegua rding the property rights of the women
who were left out before. COUl1s interp reted that the aim of thi s provision wa s to protect women
who marry men under customa ry law , wh o are already married to or who subsequently ma rry
another wom an und er statute. The woman marri ed under customary law is regarded as a wi fe for
succession purposes.I "
2.2.1 Legal framework on cohabitation unions in Kenya
2.2.1.1 The Land Registration Act
Rights of cohabitants are not directly addressed by this statute but can rather be construed. The
statute provid es that , ' Except as otherwise provid ed in any wr itten law, where the instrument of
trans fer of an interest of land to two or more persons does not specify the nature of their rights
lOS ( 1977) KLR 21.
109 (1978) KL R 1S.
110 Section 37, Repealed Marriage Act ( 1962).
111 sec tion 3(5) , Law a/Succession (Ac t No. 26 of 20 15).
112 Irene Macharia v. Margaret Wairimu Njomo and another Nairobi Appea l No. 139 of 1994.
20
there shall be a presumption that they hold the interest as tenants in common in equal shares.' 113
In relation to cohabitation unions, where an instrument of transfer of interest of land exists which
does not specify the nature of the cohabitees rights. The presumption will be that the cohabitees
hold the interest as tenants in common in equal shares .
The presumption ofjoint tenancy brings with it obligations and duties placed on the parties. Under
the statute if land is occupied jointly, no tenant is entitled to any separate share in the land and
consequently; dispositions may be made only by all the jo int tenants, on the death of a joint tenant,
that tenant' s interest vests in the survivi ng tenant, and lastly each joint tenant may transfer their
interest inter vivos to all the other tenants but to no other person , and any attempt to so transfer an
interest to any other person shall be void .'!" Upon the death ofone of the joint tenants the property
moves to the survivor through transmission,. This is done by the registrar deleting the name of the
joint tenant who has died from the register by register ing the death certificate. 115 It creates a
protection of property rights in land for cohabitees who have been presum ed to be joint tenants.
The changes made to law and jurisprudence created by courts show a progressive approach by
Kenyan society with regards to appreciating that persons in cohabitation unions have property
rights which need to be protected. There is sti ll more room left to be filled since, a lacuna exists
in law where the rights are not codified.
113 Section 9 1(2), Land Registra tion Act (Act No.3 of20 12).
114 Sectio n 9 1(4), Land Registration Act (Ac t No.3 of20 12).
l IS Sect ion 60, Land Registration Act (Act No. 3 of20 12).
21
CHAPTER 3
COMPARATIVE STUDY ON PROPERTY RIGHTS IN COHABITATON
UNIONS BETWEEEN KENYA, ENGLAND AND SCOTLAND
3 Introduction
In this chapter, the issue of property rights in cohabitation unions will be discu ssed by looking at
how it has been addressed in Scotland and England. The two jurisdictions have a rich jurisprudence
established by the courts concerning matters of property lights in cohabitatio n unions. In Scotland ,
there exist a law which specifically look s at the rights of cohabitees. 11 6 Curre ntly in England, there
is a Cohabitat ion Bill before parliament which provides a good legal framework for the protection
of cohabitees property rights.
3.1 England and Scotland
3.2 History
Cohabitation in England and Scot land can be traced backed to the 19th and 20lh century as
documented in history.117 Cohabitatio n was practiced for economic conv enience and was preva lent
among the poor during the Victorian era. li S During this period, persons in cohabitation unions
were considered to be living in sin , as seen in the case of Hyde v Hyde I 19 which was decided durin g
the Victo rian era. The court held that a marriage, as understood in Christendom, may be defined
as the voluntary union for life of one man and one woman, to the exclusion of all others. The court
viewed unions such as coha bitation as living in sin and strongly disapproved of them since they
painted a wrong picture of what a marriage ought to be. Thi s view advanced by the courts and
society at large was inst rume ntal in leading to the disenfranchisement of couples in the unions.
\\ 6 Family Law (Scotla nd) Ac t (2006).
\ i 7 hup:!Iwww.historvextra .com/artic Ielbbc-h isto rv-magazi nell iving-sin-co mma n-Iaw-m an'iagc -
unmarr iedrelationships- victorian-brita in Access ed on 26/09 /20 17.
l IS htt p://www.histo.vcx lra.co m/ arti c le/bbc- histo rv-magazi nell iving-si n-co mmon-Iaw- marriagC-
unmarriedrelati onshi ps- victorian-britai n Acces sed on 26/0912017.
119 [L. R.] I P. & D. 130 ( 1886) .
22
Significant changes have taken place since the Victorian era, and the number ofcohabitation unions
have gone up. 120 Statistics show that between 1996 and 2016 , families in cohabitation unions
doubled in number from 1.5 mill ion to 3.3 million.121 Following the increase ofcohabitation unions
the government through legislations and courts through jurisprudence have tried to create
mechanisms that tackl e property rights of cohabiting persons.
3.3 England
In England, the first real recognition of cohabitants as a class for whom lega l provisions could be
made for, was seen through the enactment (If the Domestic Vio lence and Matrimonial Proceedings
Act 1976. Under section 1(2) of the Act, applicants were allowed to obtain injunctions to control
spouses behavior and even to exclude them from the matrimonial hom e, the application was
extended to ' a man and a woman who are living with each other in the same household as husband
and wife(cohabitees)' .122
Parliament in 1996, made a symbolic step in trying to Improve the posit ion of parties in a
cohabitation union by enacting schedule 7 to the Family Law Act of 1996. The schedule granted
cohabitants powers to transfer tenancies to each other. m The court under the sched ule is given
powers to make an order to transfer the tenancy of the dwelling-house in which the coupl e
cohabited in.124 When determining such an order, the court takes into account, where only one
cohabitant was entitled to occupy the premises; 125 the nature of the parties ' relation ship , mainly
looking at the level of commi tment. The length of the cohabitati on. Where there are children from
I~C
https:/!w \Vw.ons.gov.uk/peopl cpopul ationandc ommunitvlbirthsdeath sandmarriages/fami lies/bull etin s/tam iliesan dho
useholds/20 16 Accessed on 2619/20! 7.
121
http s://www.ons.gov .uk/p coplepopu lationand communitvlb i11hsdcath sandmarri agc s/tam ilies/bull ctin s/fa mili esandho
use ho lds/20lQ Accessed on 26/9/2017.
I~~ Nigel Lowe and Gilli an Douglas, Bromley's Family Law, Oxford I I edition, 2015, 939.
1~3 Nigel Lowe and Gill ian Dougl as, t'romleys Family Law, Oxford I I edi tion , 20 IS, 950.
1~4 Paragraph 3(2) ,4( b), Schedule 7.
1 ~ 5 Section 36(6), Family Law Act ( 1996).
23
the union, or have parental resp onsib ility for any children. The length of time since they cease d to
cohabit.
The court also has leeway to exercise powers to adjust the cohabitees liabilit ies with respect to the
. tena ncy, and order tor the party receiving the transfer to reimburse the transferr ing tenant. l.!6
Former cohabitants can make an appl ication even after they ha ve gotten married or starte d
cohabiting wi th someone else, although the court is going to take this fa ctor into consideration
when making n determinauon.I'" The Act 128 led to the drafting of the Cohabitat ion Rights bill
which seeks to address the issue of cohabitants light to ow n propert y.
3.3.1 Coha bitation Rights bill
Currently in England there is a Cohabitation Rights bill before parliament. The bill has al ready
gone through the first reading. It prov ides a legal framework for the creation and protection of
cohabitation unions. ,:;. cohabi tant is defined as; any two persons either hetero sexual or sam e sex,
who live together as J couple, it goes on to prov ide a set of condition s that these two people should '
fulfil , 1 2 ~) the two person s are each treated in law as bein g mot her, father or paren t of the same mino r
child.l:" they are the natura! pare nts of a child e» ventre sa mere at the date whcn rhey cease to live
together as a coup le, ' :" and they should have lived together as a couple Cor a continuo us period of
three years or more. Person s who are married to each other or are in the proh ibited degrees of
.consanguinity lack capacity to form a cohabitation union. 132 The law defines a form er coha bitant
as a person who was in a cohabi tat ion union which ceased to exist. 133
I ~O i,rigel I. C)\\(; and G ill ian Dou glas, Bromley 's Family Law, Ox ford 11 ed ition , 20 15.95\1.
I~i Nigel [ 0\1 ' (; an d G illian Dou gla s, Bromley 's Family Loll', Oxford 1 i ed ition , 20 15, 95 0.
I ~ S Family La w ACl l l <>96).
129 Cl ause 2( I ), Cohabi tation Rights bill .
:30 Cl au se 2(2), Cohabitation Rights bill,
' 3; C lause 2( 2), Cohabitation Righ ts bill.
13 ~ Cl au se 2(3) , Cohabitation Rights bill .
133 C lause 3, Cohabitation Rights bill.
24
A relevant child in a cohabitation union is defined as any minor who the cohabitants are treated as
mother and father under the law. 134 Parties who are within the prohibited degrees of consanguinity
lack capacity to form cohabitation unions.l" The bi ll allows parties to a co habitation union to
apply to the courts for financial settlement orders.P" the application is ~xtended also to the former
cohabitants. 137
Co urts derive their j urisdiction from clause 8 ,1 38 which gives it the power to make fi nancial
sett lement orders. In making such an order the court conside rs the fo llowing facto rs; Ij9 that the
parties have seized to be in a relationship, its satisfied that the defendant retained a benefit or the .
app licant suffered an economic disadvantage, the court having regard to d i scrst ion~ry factors
determines that it is just and equitable, Discretionary factors which the court con siders provided
for in the bill are: the welfare of a minor(child under 18 years), the financial needs and .obligations
which each of the part ies has, or is likel y to have in the fore~eeabie future, the welfare of any
children wh o live with or might reasonably be expected to live with either party, the conduc t of
each party if, but only if, it is of such a nature that it would be inequitable to disregard il , andt he
income, earn ing capac ity, prop erty and other finan cial resources wh ich each of the parti es has, or
is likely to have in the foreseeabl e future.
. T he bill allows for a cohabitant to have an insurab le interest in the life of the othe r cohab itant. I ll )
On the iss ueof succession in cases of an intestate esta te the bill proposes to amend Section 46 of
the Admi nistration of Estates Act 1925, by including cohabitants as part of the classes of persons
who have a rig ht to the deceased estate. A cohabitant needs not to have been married before the
death of the spo use and should have been cohabiting with the deceased before their death. I 'l l Th e
13·1 Clause 4 , cohabitation Rights bill
ns Clause 5, Cohabitation Rights btll.
136 Clause 7, Cohabitation Rights bill .
137 C lause S, Cohabitation Rights bill.
us Cohabitation Rights bill.
139 Cl ause 9, Cohabitation Rights bill.
140 Clause 16, Cohabitation Rights bill.
141 C lause J9, Cohabitation Rights bill
25
new bill provides hope that the inequality in terms of property rights of cohabitees will soon be
over.
3.4 Scotland
Scotland has a well-defined legal framework with regards to laws concern ing the property rights
of cohabitees , found in the Family Law (Scotland) Act (2006). .1.12 The law defines a cohabitant as a
man and a woman who are (or were) living together as if they were husband and wife. 143ln
determining whether a person is a cohabitant for the purpo ses of the Act , the court considers ; the
length of the peri od during which A and B have be en living together (or lived together) , the na ture
of their relationship during that period, and the nature and extent of an y financial arrangements
subsisting, or which subsisted, during that period. !44 The statut e provides that it shall be presumed
that each cohabitant has a righ t to an equa l share in household goods acquired (other than by gin
or succession from a third party) during the period of cohabitation.' :" This presumption can be
reb utted by cogent evidence to the contrary.146 In defining household goods, the Act gives what is
not considered to form household goods which is money, securities , motor vehicle or any domestic
anima l. !47
'Where ther e is uncertainty regarding the right of either cohab itant to money gotten from any
allowance made by eithe r of them , to meet their joint household expenses or for similar purpose
or any property is acquired with that money. l oi S Subject to the existence of an agreement to the
contrary between the cohab itants, the money and property gotten from the said allowance-shall be
trea ted as bel onging to the cohabitees in equal shares. 149
14" Family Law (Scotland) Act (2006).
143 Sec tion 25( 1). Family Law (Sco tland) Act (2006) .
I-U Sect ion 25(2), Family Law (Scotland) Act (2006).
1·15 Sec tion 26(2), Family Law (Sco tland) Act (2006).
146 Sect ion 26(3), Family Law (Scotland) Act (2006) .
14'1 Sectio n 26(4), Family Law (Scotland) Act (2006) .
148 Section 27( I), Family Law (Sco tland) Act (2006).
149 Section 27(2), Family Law (Scotl and) Act (2006).
26
The Act goes on to provide that either party in a cohabitation union can apply to the court for
financial provision where the union ends otherwise than by death. 150 In bringing such an
app lication the app licant has to show that the defender has derived economic advantage from
contributions made by them. 151 Two , the applicant has suffered economic disadvantage in the
interests of the defender or any relevant chi ld,ls2 for the purpose of this law a child is defined as
persons under 16 years 01d. IS3 The chi ld then becomes relevant if the cohabitees are the parents or
they have accep ted to be the child of the fami ly.154 After considering these factors , the court may
order the defendant to pay a cap ital sum to the applicant, pay such amounts as specified in its
orders in respect to the burden of caring for a child whom the cohabitees are parents, and lastl y
give any interim orders they find fit. 155 A caveat is placed by the statute where it requires that all
app lications made under this section be made not later than one year after the day on which the
cohabitants ceas e to cohabit.!"
Where the coh abitee dies intesta te, the surviving spouse can app ly to the court for provision from
the estate of the deceased.l" In looking at the application, the court considers: the size and nature
of the deceased 's net intestate esta te; ISS any benefi t recei ved or to be recei ved by the survivor;159
the nature and extent of any other rights against or claims on the deceased ' s net intestate estate; 160
and any other matter the court considers appropriate.161 After considering this matt ers the court
can order for payment to the survivor out of the deceased's net intestate esta te of a capital slim of
such amount as may be specified in the order for transfer to the survivor of such propert y from that
150 Section 28, Family La w (Scot land) Act (2006) .
151 Section 28(3), Family Law (Sco tland) Act (2006).
152 Section 28(3), Family Law (Scotland) Act (2006) .
153 Section 28(9) , Fam ily Law (Scotland) Act (2006) .
154 Section 28( 10), Fam ily La w (Scotland) Act (200 6).
155 Section 28(2), Family La w (Scot land) Act (2006)
156 Section 28(8), Family La w (Scotland) Act (2006) .
157 Secti on 29, Family Law (Scotland) Act (2006).
ISS Section 29.(a), Fam ily Law (Scotland) Act (2006).
159 Sect ion 29(b), Family Law (Scotland) Act (2006) .
160 Sectio n 29(c), Family Law (Scotland) Act (2006).
161 Section 29(d), Family Law (Scotland) Act (2006) .
27
estate as may be so specified and make such interim order as it thinks fit. 162The ensuing section of
the study now looks at how courts in both j urisdi ctions have interpreted the laws in relation to
cohabitants property rig hts .
3.5 Jurisprud ential growth for the protection of property rights in cohabitation unions in
England and Scotland
Section 28 of the Family Law (Scotland) Act has received judicia l interpretation in the case of Gow
v Grantl'" The plaintiff wa s convinced by the defendant to sell her house and move in with him ,
a request that she honored . Some of the proceed s from the sal e of her house were used for their
living expenses while they were together. A fter just over five years, the couple separated and the
pla int iff moved out. The plaintiff raised an action under section 28 of the Family Law (Scotland)
Act for a compensatory payment for the economic disadvantage she suffered as a resu lt of the
cohabitation.
The co urt ruled in favor of the plaintiff by award ing her € 39 500 , to account for what her hou se
would ha ve been worth if she had kept it and other contributions she made. The defendant appealed
to the COUli of Session which set aside the order arguing that the law regarding cohabitants' rights
was to be applied narrowly.P''Meaning that it l65should be restricted to consideration of econom ic
imbalances resulting from the cohabitation, rather than any wider issues that might ha ve arisen
between the parties. The plaintiff went ahead to appeal to the Supreme Court of United Kingdom,
whic h reinstated her award and ru led that section 28 should be interpreted broadly.l 'vso as to
pro vide what isfair and reasonable even for cohabiting couples. The court was of the opinion that
the law simply intended to help the court to correct an y clear and qu antifiable economic imbalance
resulting from the cohabitation .l''?
1 6~ Section 29(2), Family Law (Scotland) Act (2006) .
163 [201 2] UKSC 29.
164 http ://ww w.brod ics.com/binformed/legal-updates/gow-v-grant-supreme-fairness Accessed on 28/9/2017 .
165 Section 28, Family Law (Scotland) Act (2006).
166 Family Law (Sco tland) J· ~ t (2006).
167 http://w\V\\..brodies.com/binfonned/ legal-updates/gow-v -grant-supreme-fa irness Accessed on 28/9/20 17.
28
Courts also through judicial activism have developed jurisprudence by way of precedence to try
and remedy the gap in law with regards to the lack of protection of cohabitees property rights . At
first the courts approached the cases by employing principles of equity in resolving issues of
property rights in cohabitation unions. This was seen in the case of Eves v Eves, / 68 the cohabitants
acq uired a house which was registered in one party's name. The pla intiff went on to make
improvements to the property and mai ntain it, and it 's for this reason she argued that she had a
beneficial interest to the property. It was held tha t there existed a construct ive trus t in favor of the
plaintiff. The court found her contributions as giving rise to a common intention to share in the
home 's equity. Contributions made were enough to give rise to a beneficial interest in favor of the
plaintiff.
Cohabitants property interests were protected if they could prove they had beneficial inte rest in the
said property. The courts went on to attempt to give a clear definition of what could give rise to a
beneficial interest. In its attempt it went on to give a definition which went against the one it gave
in Eves v Eves. / 69 The new interpretation omitted maintenance and decorations as being enough
to give rise to a beneficial interest. This approach was seen in Lloyds Bank v Rosset, /7 11 where the
wife had not cons ented to the husb and taking of a mortgage of their hou se. She argued that through
decorations and improvem ents to the house she had acquired a proprietary interest. This meant that
her claims would rank first 171 before the banks who wanted to take possession after the husband
defa ulted on a loan. It was held by the court tha t the decorations and imp rovements on the home
were not enough to create a beneficial interest. The parties were married but the case was
instrumental, since the same interpretation of benefici al interest was appl ied to cohabitation
unions.
In Ox ley v Hiscock'T' ,« case involving cohab itant's the court applied the interpretation set in
168 [1975] EWCA Civ 3.
169 [1975] EWCA Civ 3.
170 [ 1989] Ch 350.
171 Section 70( 1, g) , Lan d Registration Act ( 1925).
172 [2004] EWCA Civ 546.
29
Lloyds Rank v Rosset.l " In this case the property was held solely in one cohabitant's name. The
plaintiff wanted the court to find that she had beneficial interest in the property held by the
defendant, thus requesting the property divided in equal shares. Both parties had contributed
different amounts to the purchase and maintenance of the premises. The court concluded that the
plaintiff would get 40% of the total share . In the rat io decidendi Lord Bridge's in his obiter dictum
said ,
"I pause to observe that neither it common intention by spouses that a house is to be renovated as a
'jo int venture' nor a common intention that the house is to be shared by parents and children as the
family home throws any light on their intentions with respect to the beneficial ownership of the
property."
Beneficial int erest arises when there is express evidence of shared intention as to proportions, and
where there is no ev idence the court is going to distribute the property in a manner it considers fai r
and juSt.1741 75
As see n above co upl es whose only contribu tion was the maintenance and decoration c f the
premises had a ha rd tim e provin g their beneficial interest. Thi s disadvant aged part ies who mad e
such contributions since their interest in the property hanged on a weighing scale which was onl y
tipped by evidence showing that [he intention of the parties was to own property jointly .
In Stack v Dowden.60 the court went one step further to provide instances which could give rise to
a beneficial interest. It stated that a presumption of beneficial interest could be arrived at where
property is registered und er joint ownership, the presumption is rebuttable if evidenc e is adduced
to show this was not parti es intention. Thi s case involved two cohabitees who wanted the court to
determine their property rights. The Supreme court dismissed the appeal and upheld the court of
appeals deci sion to sp lit the property with rega rds to what each party owned . The rationale was a
presumption of beneficial interest being held jointly may be arrived at where the legal title was
held jointly. This may be displaced where there is evidence that this was not their intention. Also,
where the beneficial interests are not declared, the presumption is that equ ity follow s the law and
m [1989] e h 350
174 htlp ://ww w.famil vlawweek.co.uk1sile.aspx?i=cd 1498 Accessed on 26/9120 17.
175 AC 432 House of Lords (2007) .
30
the beneficial interests reflect the legal interests in the property. 176Thejurisprudence coming from
this case was that having joint ownership of property in cohabitation unions does not give rise to a
beneficial interest in cases where this presumption is rebutted. Where the presumption is rebutted
the court is left with the obligation to divide the property in fair manner.
In Kemott v Jones, m the plaintiff and the defendant who were cohabitees owned their house
jointly when they got it. The plaintiff wanted the court to split the property held with the defendant
equally since it was held in their joint names. The plaintiff at first lived with the defendant but
late l7Sr on left and went to live by himself and made no contributions to the up keep of the house.
The request to split the property equally was made after being absent for 13 years from the house.
The county court and the high court ruled in favor of the defendant splitting the property in unequal
shares of 90% and 10%. In the court of appeal this ruling was over turned in favor of the plaintiff
and the property was split in equal shares . The ratio decidendi of the court was based on Stack v
DOlvden,63 where the court held that beneficial interest being held jointly may be arrived at where
the legal title was held jointly, this presumption is only rebutted ifthere is credible evidence to the
contrary which the court in this case stated the defendant did not furnish. The Defendant appealed
to the supreme court which overturned the court of appeals decision and divided the property in
the share of 90% and 10% in favor of the defendant. In the courts ratio decidendi it found that in
this case the presumption of beneficial interest in the joint ownership was displaced by the
intentions of the plaintiff.
Currently the holding in Kernott v Jones ,179 informs the courts on matters of cohabitation in the
sense that courts are construing beneficial interest from a cohabitation through the contributions to
the maintenance of the house, this extends in instances where the house is registered to
oneperson. ISO
176 b.!!R://ww w.familvlawweek.co.uk/s ite.aspx? i=ed642 Ac cessed on 27/9/207.
17i UKS C 53 (2011).
I, S AC 432 House of Lords (2007).
179 UKSC 53 (20 II).
ISO Oxley v Hiscock [2004J EWCA Civ 546.
31
This section of the study brings shows that it is possible to have a legal frame work which protects
cohab itees property rights.
32
CHAPTER FOUR
REGULATION OF PROPERTY RIGHTS IN COHABITATION UNIONS
4 Challenges that Kenya will face in reconciling the borrowed Jaws with its laws.
This chapter will discuss how the comparative study can be used as a benchmark by which Kenyan
legislators can formulate its legal framework on cohabitation property rights. In trying to reconcile
the laws from Scotland and England to fit into a legislation tailored for use in Kenyan context an
issu e of compatibility arises, in instanc es where such law s arc not applicable. The incompatibility
stems from the fact that there exist a different social and political ideologies between Kenya and
thes e countries. Differences seen in the foll owing aspects :
Firstly, the law in Ken ya recognizes the ex istence of cohabitation unions but goes silent in
pro vid ing procedures and ways in which propert y acquired duri ng and after the cohabi tation is to
be dis tributed or ow ned. l SI This creates a pro blem where the propert y right s of persons in a
cohabi tation un ion are not guaranteed by the law .1S2 It is an injus tice to perso ns in such unions
since their right to property as guaranteed in the constitution' j' is not protected by the l aw. l s~
Secondl y, in defining cohab itat ion the Co habitation Right s bi ll o f England allows persons of the
same sex to form th is unions.ISS In Keny a, the constitution defines a marriage as a uni on between
a man and a woman, while in the Ma rriage Act cohabi tation is a union between a man and a woman
resembling a marriage, 1R6These two laws clearly show Kenya 's position in relation to sam e sex
relationships, hence meaning this definition cannot be borrowed to the new legislation.
In Kenya, the law defines a cohabitation as a union between a man and a wom an that resembles a
marriage.l'" Th e definition from England involving same sex couples cannot be adopted since it
goes against the Co nstitut ion of Kenya which sta tes tha t a marriage
lSI Sect ion 6, Marriage Act (Act No.4 of 20 14).
I S~ Sect ion 6, Marria ge Act (Act No. 4 of2014).
IS3 Article 40 , Cons titu tion of Kenya (20 I 0).
IS4 Sec tion 6, Marriage Ac t (Act No. 4 of 20 14).
1S5 Clause 2( I), <. 'ohabitation Rights hill .
IS6 Article 45, Constitution of Kenya (20 I0) and section 2, Marriage Act (Act No. 4 of 20 14).
IS7 Article 45 , Constitution ofKenya (20 I0) and sec tion 2, Marriage Act (Act No.4 of20 14).
33
Thirdly, the social-political aspect of the society in Ken ya is mainly guided by conservative notions
of marriage which are informed by the different religious and traditional beliefs. This approach at
the very least can be characterized as being conservative. The society has an obligation to adopt a
progressive approach in apprecia ting change which in this case is the existence of a cohabitation
union. The legisl ators in drafting a new law should tackle this challenge by recognizing
cohabitation and prop erty rights of the parties in it.
4.1 Opportunities
In drafting a new law to fill the gap the legislato rs should adopt the following aspects as found in
the laws of Scotland and the Cohabitat ion Rights bill of Eng land. The law sho uld high ligh t the
prohibited degrees of relationships and persons who are not qualifi ed to be in a cohabitation
union.ISS
The se relat ionships includ e situations where one is the other's parent, grandparent , sister , brother,
aunt or uncl e.:39
Conditions giving rise to a presumpt ion of a cohabit ation union mus t be captured in the new
legislation . These include the length of the period the parties have lived toge ther. the natu re of the ir
relationship during that period, and the nature and extent of any financial arrangements subsisting,
or which subsisted, during tha t period.190 A rele vant child in rela tion to a coh ab itation union shou ld
be defined by the law. This definit ion is paramoun t because the ex istence of a child affects how
the property is shared. the amount of financial provisions a spo use can receive, and the obligat ions
which each of the spouses have over the child . A relevant child is any minor who the cohab itant s
are treated as mot her and father of under the law, !<) i in the Kenyan context a child is regarded as
one who has not attained the age of 18 years.In
Property rights to certain househo ld goods with regards to cohabitees shoul d be protec ted . The new
statute should codi fy the presumption that, each cohabitant has a right to an equal share in
183 Clause 5, Cohabitation Rights bill .
189 Cla use 5, Cohabi tation Righ t.' bill.
190 Sec tion 25 (2) , Fami ly L<l1l' (Sotland) Act (200G).
191 Sec tion 28( I0) , Family Law (Scotland) Act (2006), Clause 4, cohabitation Rights bill.
1 9~ Section 2, Children Act (Ac t NO.8 OF 7.00 1).
34
household goods acquired (other than by gift or succession from a third party) during the period of
cohabitation.193 This presumption can be rebutted by evidence to the contrary . 194 "House hold
goods" wi ll be defined as any goods (including decorative or orna menta l goods) kept or used at
any time during the cohabitation in any residence in which the cohabitants are (or were) cohabiting
for their joint domestic purposes.195 It will not include money, securities, any motor car or any
domestic animal. 196
When drafting a legislation on protecting the property rights of cohabitees, legislators need to
capture the rights in certain monies and properties as seen under the Scottish law .197 When any
question comes up, during or after the cohabitation on the issue of the right of a party to mon ey
coming from any allowance made by either part y for their joint household expenses or for simi lar
purposes or any property acquired out of such money. 198 Subject to any understanding to the
contrary the money or property should be presumed to be owned by each cohabitant in equal
shares .!"
Following the jurisprudence set out by the courts, the law should also capt ure the issue ofbenefic ial
interest . '?" In considering the presumption of beneficial interest in rela tion to the ownership of
properties, the court has mainly pegged its opinion on what the intentions of the parti es was and
what it considers just and fair.2oo In Ken ya, the Land Registration Act can be construed to allud e
to the existence of a beneficial inte rest where cohabitees property have been registered
193 Section 16(1), Fam ily Law (Scotland) Act (2006).
19·\ Section 16(3), Family La w (Scotland) Act (1006 ).
195 Section 16(4), Family Law (Scotland) Act (1006).
196 Section 16(4), Family Law (Scotland) Act (1006) .
19i Section 17, Family Law (Scot land) Act (1006).
198 Section 17( I), Family Law (Scotland) Act (1006) .
19 Section 17(1). Family La w (Scotland) Act (2006).
199 E ves v Eves , [ 1975] EWCA Civ 3; Sta ck v Dowden, 1 AC 431 House of Lords (100 7) and Ke rno tt v Jones,
UKSC 53 (20 1I).
coo Eves v Eves. [1975] EWCA Civ 3; Stack v Dowden, 1 AC 431 House of Lords (100 7) and Kernott vJo nes ,
UKSC 53 (10 I I).
35
jointly.P'The new legis lation should set out conditions which give rise to a beneficial interest in
relation to the property ow ned by the cohabitants.
Still on the j uri sprudence, the new law should use the rul es of equi ty and come up with conditions
wh ich give rise to the creation of a construc tive trus t. One of the main guiding points is the
exis tence of a beneficial interest. 202 The law should have provisi ons which allow for the creation
or presumption of a constructive trust in cases where the is an unjust distribution of the property
between the cohabi tees. Cohabitees und er the new legislation should be allowed to have insurable
interest in the life of thei r spouses , the same can be seen in the Cohabitation Right s bill of
England.i'"
The new legis lation should provide for financia l provisions for cohab itants where the ir unions end
by other ways other than death . This will enable the spouse applying for such provisions to
ma intain the standard of lifestyl e they had during the union, with regard s to their ownership of
property or sources of funds. Qualificat ions needed to appl y for the provision abo ve can be
borrowed from the Scottis h law; an applicant has to show that the defe ndant derived economic
advantage from con tr ibutions made by them. 20·] Tw o, the applicant has suffered economic
disadvantage in the interests of the defe ndant or any relevant child .:'>05
Limitations to filing such all application should be; where the application is mad e 24 months alter
the cohabitees have stopp ed living as spouses.i'" and where the applicant is ma king more than one
appl ication to the same respondent.i '" Th e new statute should guid e the court in terms of what
considerations it should take in mak ing its judgments. Bon-owing from the Eng lish Cohabi tation
Rights bill the court will consider ; the ex iste nce of a child in the union (which will be the main
consideration), the financia l needs and obliga tions the parties have to eac h other and the conduct
201 Sectio n 91(2) , Land Registra tion Act (Act No. 3 of 20 12).
202 Eves v Eves, [1975] EWCA Civ 3.
203 Clause 6, Cohabitation Rights bill .
2lJ.l Secti on 28(3), Family Law (Scotland) Act (2006) .
205 Section 28(3 ), Family Law (Sco tland) Act (200 6).
206 Clause 7(3), Cohabitation Rights bill .
20; Clause 7(4 ), Cohabitation Rights bill.
36
of the parties. 208The law should go on and guide the court on the awards it should make. These
awards may include; ordering the defendant to pay a capital sum to the applicant, pay such amounts
as specified in its orders in respect to the burden of caring for a child whom the cohabitees are
parents, and lastly give any interim orders they find fit. 209
Division of property in intestacy as provided by the current laws leaves out cohabitees, the law
fails to recognize cohabitants in the hierarchy it provides for persons who can claim the property
of the deceased. " ? The new legislation should borrow from the Cohabitation bill and include
cohabitees as part of the persons who are allowed to claim the deceased estate in intestacy. The
only requirement of this rule is that the former cohabitant need not to have been married prior to
the deceased death.211
cos Clause 9, Cohabitation Rights bill.
~09 Section 28(2), Family Law (Scotland) Act (2006).
~I O Section 39, Law ofSuccession Act (Act No. 26 of 20 15).
~II Clause 19, Cohabitation Rights bill .
37
CHAPTER FIVE
CONCLUSION, FINDINGS AND RECCOMENDATIONS
5 Introduction
This chapter sums up the findings of this study and explains how the research question has been
answered. It will also provi de recommendations which wi ll he lp in tackling the problem.
5.1 Summary of th e resea rc h problem and an swer to the problem
The law recognizes the existence of cohabitation unions but goes silent on property rights of the
parties in that union.m Non-recognition of the cohabitees property rights disenfranchises them
from property ownership as provided in the Constitution .i" This creates uncertainty with regards
to how the parties hold their property during and after cohabitat ion. Th e remedy to this lacuna is
for the legis lators to draft new laws which take into account the property rights of cohabitees and
protect those rights.
The comparative study brings out the rich jurisprudentia l framework which ex ists in Eng land and
Sco tland with regards to the protection of cohabitees property rights. It shows how the two
jurisdictions have put into place mechanisms by which the rights ofcohabitants are guaranteed and
protected. This provides an opportunity tor Kenya to learn and borrow ideas from these two
jurisdiction which will inform the drafting of a legal framework in Kenya.
5.2 Findings
In the course of the study the following findings were made;
a) The Marriage Act recognizes the existence of a cohabitation not as a form of marriage but as
union resembling a marriage. i !" In not recognizing it as a form of mani age, property rights in
cohabitation unions cannot be protected by the Matrimonial Property Act. 215 This essentially
means the Marriage Act takes notice of the existence of cohabitation unions but goes silent
with regards to property rights of cohabitees. It creates a problem when it comes to the
212 Section 2, Marriage Act (Act No. 4 01'2014) .
213 Art icle 40, Constitution ofKenya (2010).
214 Section 2, Marriage Act (Aet No. 4 01' 2014).
215 Section 6, Matrimo nial Property Act (Act No. 49 of 20 13).
38
distribution of the cohabitees property when; they separate, one of them dies interstate, the are
children present in that union and where there is money involved.
b) The Land Registration Act provides some reprieve to cohabitants by providing 'Except as
otherwise provided in any written law, where the instrument of transfer of an interest of land
to two or more persons does not specify the nature of their rights there shall be a presumption
that they hold the interest as tenants in common in equal shares'.l16 In relation to cohabitation
unions, where an instrument of transfer of interest of land exists which does not specify the
nature of the cohabitees rights . The presumption will be that the cohabitees hold the interest as
tenants in common in equal shares.
c) Courts in Kenya have through judicial activism played a positive role in developing
jurisprudence which provides for mechanisms by which cohabitees property rights are
protected.
d) The comparative study shows that it is possible to set a legal framework by which the property
rights of cohabitees can be guaranteed and protected.
5.3 Recommendations.
a) The revision ofthe Marriage Act; Ken yan legislators should also review the Marriage Act, 217
so as to add provisions which will guarantee the protection of cohabitees property rights .
b) Implementation of laws; the constitution of Kenya guarantees the right to ownership of
property to all persons .i " This means in addition to the Legislators reviewing the Marriage
Act they should also draft new laws which aliow cohabitants to realize their right to property.
c) Role of the courts; in the courts have a role to play in interpreting the laws which the
legislators will make with regards to cohabitees property rights . In an event where the
legislators do not review the laws to ensure the protection of cohabitees property rights. The
court should go ahead through judicial activism to create jurisprudence which fills the gap s in
the law.
216 Section 91(2) , Land -iegistration Act (Act N,) . 3 of2012).
217 Marriage Act (Act No .4 of2014).
118 Article 40 , Constitution 0/Kenya (20 10).
39
d) Role of community; the community has an obl igat io n to adopt a progressive approach in
appreciating change which in this case is the ex istence of a co habita tio n unions. This is by
changing its perspective towards cohabitation unions and taking a much more accommodative
approach . Such a move will aid in the rem oval of nega tive co nno tations p laced on the uni ons
which leads to cohabitants being stigmatized .
5.4 Con clusion
The stud y has ad dressed the res ea rch probl em , which was the non-recogni tion of co hab itees
p rop erty li ght s. The soluti ons to the problem have been outl ined n~. po licy co ns iderations which
parli ament should us e when drafting law s wi th rega rds to cohabitants . Obj ec tives of the stu dy have
be en achieved in the fo llowing ways;
a) T he study found out tha t the law only recognizes the existence o f co habitation unions but goes
silent with regards to p roperty rights in this unio ns.
b) The study fo und out there exi sts an anchor jaw in th e constitution req uiri ng the pro tection o f
the co hab iiees property right law gove rning property ri gh ts in coha bitation union s,
c) The study has highligh ted the non-exi stence of laws pro tec ting co hah itees prope rty righh and
has recomm ended solut ion th e prob lem .
The hyp othesis was tested by looking at cas elaw, where we tim! cohabi tants relying Oil the co urts
to det ermine their proper ty rights aris ing from the co habitat ion . Reason being th e law is sil ent on
the issue of the ir property rights . This study concl udes that the righ t to ownership of property which
is enshri ned in the Kenyan constitutio rr '! " should be availed TO persons in co hab itation unions.
119 Art icle ':;0, Cons titution of Kenya (20 I0) .
40
6 BmLIOGRAPITY
a) Books
Nigel Lowe and Gillian Douglas, Bromley 's Family L« II' , II ed, Oxford University press, 2015.
Francis Kariuki , Smith Ourna and Raphael Ng' etich, Property law, Strathmore University
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Brinig, Margaret F. and Nec k, Steven L., "Marry Me, Bill: Should Cohabitation Be the (Legal)
Default Option?" (2004). Scholarly Works. Paper 633.
Lynne Marie Kohm and Karen M. Groen 'C ohabitation and the future of marriage ' Regent
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Robert C. Angermeier, 'Property Rights Between Unmarried Co ha bitants' Indiana Law
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Dr. John Hayward and Dr. Guy Brandon 'Cohabitation: An alternative to marriage' Jubi lee
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Marriage Entry' Blackwell Publishing Ltd (2003), volume 65 issue 1, page 105-116.
Anton-Hermann Chroust & David 1.. Osborn ' Aristotle's Conception of ju stice' Notre Dame
La w review (1942), 17 volume issue 2, page 130.
Ackrill, J. 1.. and Urrnson J. O. '3 Ethica Nicomachea ' , 112-117, 1131a-1131b Oxford
Universi ty Press, 1980.
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