M v R M [1985] KECA 77 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that living together for years doesn't create a marriage, especially while one partner remains legally married to someone else.
What this practically means
#Executive summary
#Key legal issues
#Whether a customary marriage could be presumed during the subsistence of the respondent's prior marriage to Vermoor
No. Section 37 of the Marriage Act removed capacity to marry while the prior monogamous marriage subsisted, and the decree nisi did not dissolve that marriage; only a decree absolute could.
The court reasoned that a presumption of marriage covers both capacity and the fact of marriage. During the continuance of the Vermoor marriage the respondent had no capacity, so any new marriage was null until decree absolute. Acts before May 1979 (the earliest possible decree absolute) were unavailable to support the presumption, and after that date there was no cohabitation transaction, no bride price and no elopement; the family meeting of 12 June 1979 produced reconciliation efforts, not marriage.
Whether a marriage by elopement under Kisii customary law existed
No elopement marriage arose after the respondent was free to marry; no customary requirement, gift or marriage consideration was performed.
Gachuhi Ag JA observed that customary marriage by elopement is immediately formalized by performance of customary requirements in full or in part, and the evidence disclosed no step towards a customary marriage and no payment of marriage consideration. Under Kisii and Gusii customary law a woman may not enter a subsequent marriage during a prior marriage.
Whether the sham-marriage argument could defeat the Vermoor marriage
No. The Vermoor marriage was formally arranged, witnessed and consummated, and was relied upon in divorce proceedings, so it bound the respondent notwithstanding its lack of substance.
The respondent's marriage to Vermoor was arranged to preserve her reputation and employment when pregnant. It was formally agreed and witnessed, not shown to be unconsummated, and was relied upon as valid in the divorce proceedings before the resident magistrate. It could not therefore be treated as null ab initio to evade section 37; its validity was a matter of res judicata or estoppel.
Credibility findings and the remaining claims
The trial judge was entitled to prefer the respondent's evidence, but the High Court made no findings on the further claims, which the court itself dismissed while protecting the children's relationship with their father.
The court reviewed the family correspondence and the circumstances of the association and agreed the learned judge was entitled to prefer the respondent's evidence. It declined to remit the further claims, holding instead that the events of 26 July 1979 resulted from the appellant forcing a separation, that no damages for detinue or nuisance were payable, and that no discretionary remedy should help the appellant evade his responsibilities to his children.
Legal principles established
#- No marriage, customary or otherwise, can be formed or presumed during the subsistence of a prior monogamous marriage, by virtue of section 37 of the Marriage Act.
- The presumption of marriage can only arise, where parties cohabited during a prior marriage, from acts done after the party became free to marry by decree absolute, coupled with a transaction putting an intention to marry into effect.
- Common law marriage by virtue of long cohabitation alone is not recognized in Kenya.
- A party cannot escape a formally contracted and consummated marriage by asserting it was a sham; its validity binds by res judicata or estoppel where relied upon in divorce proceedings.
- A man who has cohabited with a woman, had children with her and led her to expect marriage cannot unilaterally force a separation without a settlement.
Court orders
#- 1.Appeal allowed in part
- 2.Judgment of the High Court set aside and substituted with a declaration in terms of prayer (d) of the plaint that the defendant is not the wife of the plaintiff
- 3.All other claims in the plaint dismissed
- 4.Each party to bear his or her own costs of the trial
- 5.Each party to bear his or her own costs of the appeal
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- First appellate jurisdiction over the High Court (statutory appeal from the High Court; specific provision not stated in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "M v R M [1985] KECA 77 (KLR)", Case Analysis (1985). Civil Appeal (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1985/77/eng@1985-10-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.