MACHANI V VERNOOR [1985] KECA 124 (KLR)
The bottom line
#Kenya's Court of Appeal ruled no valid marriage can be presumed while a prior marriage exists, but fathers still owe their children support.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned trial judge was right to presume a customary marriage between the parties notwithstanding the subsistence of the defendant's prior marriage to Vermoor
- 2.Whether the presumption of marriage could arise where the defendant lacked capacity to marry until a decree absolute
- 3.Whether the High Court's dismissal of the plaint should stand, or the plaintiff's declaration of non-marriage should be granted
- 4.Whether the plaintiff's claims in trespass, nuisance, detinue and injunction should be determined or dismissed
Key legal issues
#Presumption of marriage during the subsistence of a prior monogamous marriage
The presumption of a valid customary marriage could not arise while the defendant's prior marriage subsisted; section 37 of the Marriage Act (cap 150) barred capacity to marry, and the trial judge's presumption was unsound.
The court held that section 37 must be given a logical interpretation and cannot be evaded by presuming a customary marriage during the continuation of a previous monogamous marriage. Capacity is a prerequisite of the presumption. Acts of association before the decree absolute (here, not before May 1979) were unavailable, and after that date there was no transaction or continued cohabitation demonstrating that the intention to marry had been put into practice.
Whether the sham nature of the Vermoor marriage avoided section 37
A marriage of convenience, formally arranged, witnessed and consummated, and relied upon in divorce proceedings, cannot be treated as null and void ab initio; its validity is a case of res judicata or estoppel.
The defendant argued the Vermoor marriage was a sham so she could walk out of it unscathed. The court rejected this: the marriage was formally agreed, arranged and witnessed, consummated, and relied upon in the divorce proceedings. The defendant could not evade section 37 by characterising her own marriage as a sham; she remained under a disability until a decree absolute.
Consequences for the children of a non-married association
Although no marriage was presumed, the plaintiff remained responsible for his children and the court would not grant remedies enabling him to evade those responsibilities.
The court held that the plaintiff, having lived with the defendant for about five years, fathered three children and shared expenses, could not simply force a separation without a settlement; the children have a right to maintenance and possible inheritance under Part V of the Law of Succession Act (cap 160). Discretionary remedies were refused because they would help the plaintiff evade his responsibilities.
Credibility findings and preference for the defendant's evidence
The learned trial judge was entitled to prefer the evidence of the defendant to that of the plaintiff; the family correspondence confirmed the seriousness of the association.
The appellant challenged the trial judge's preference for the respondent's evidence. The appellate court found the defendant had explained her sham marriage fully and was not caught lying in court, and that letters from the plaintiff's father and brother showed the family treated her as a daughter-in-law. The trial judge was entitled to prefer her evidence and the court declined to disturb those findings.
Legal principles established
#- During the continuance of a previous monogamous marriage, a party has no capacity to enter into a new marriage, which is null until the previous marriage is ended by a final decree of divorce.
- A presumption of marriage may only arise where, after the party became free to marry, there was continued cohabitation and some transaction or agreement putting the intention to marry into practice.
- Where parties live together without marriage, the man cannot unilaterally force a separation without a settlement, and a man who led a woman to expect marriage and fathered children with her cannot change his mind and force a separation.
- A common-law marriage by virtue of long cohabitation alone is not recognized in Kenya; the respondent relying on marriage must fit within Hill v Hill or customary law.
Court orders
#- 1.Appeal allowed in part
- 2.Judgment of the High Court set aside and substituted
- 3.Declaration in terms of prayer (d) of the plaint that the defendant is not the wife of the plaintiff
- 4.All other claims dismissed
- 5.Each party to bear his or her own costs of the trial
- 6.Each party to bear his or her own costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Delivered the principal judgment. Allowed the appeal on the presumption-of-marriage issue, granting a declaration that no marriage existed, but dismissed the plaintiff's other claims, holding he could not use the court's remedies to evade his responsibilities to his children.
In these circumstances, it cannot be said that there was a customary marriage by elopement after the defendant was free to marry.p. 4
Wrote the judgment
Wrote a separate concurring judgment agreeing with Platt Ag JA's proposed orders, emphasising that no customary marriage could exist during the subsistence of the Vermoor marriage and that parties in concubinage do so at their own risk.
In my view, this appeal should be allowed. I agree with the orders proposed by Platt Ag Judge of Appeal.p. 8
- On appeal from
- High Court at Nairobi
- Civil Case No 364 of 1981
- Jurisdiction invoked
- First appellate jurisdiction over the High Court decree (Civil Appeal No 61 of 1984)
Relief refused
#Damages for cost of children's board and ayah
The plaintiff has a moral duty towards his own children which he discharged and that part is irrecoverable
Injunction directing the defendant to remove the children
It is the plaintiff's duty to look after his own children
Permanent injunction restraining the defendant from entering or remaining on the plaintiff's residence
The court will not grant a discretionary remedy that helps the plaintiff evade his responsibilities to the children and their mother
Costs
Each party will bear his or her own costs of the appeal; each party to bear his or her own costs of the trial.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
i) a declaration in terms of prayer (d) of the plaint, declaring that the defendant is not the wife of the plaintiff; ii) all other claims shall be dismissed, and ordering each party to bear his or her own costs of the trial. Each party will bear his or her own costs of this appeal.
To answer the spirit of this provision, it would be impossible to evade its unambiguous terms, and to hold that a marriage existed during the continuation of a previous monogamous marriage.
In these circumstances, it cannot be said that there was a customary marriage by elopement after the defendant was free to marry.
In principle, I would not grant the plaintiff any discretionary remedy which will help him to evade his responsibilities.
When a man has conducted himself as the plaintiff did, and led a woman to expect marriage, and having had three children with that woman, and having lived together with her and shared expenses, over some five years, that man cannot change his mind and force a separation.
Issues in the judgment
#The judgment gives two different case numbers for Chesire v Chesire: 'Chesire HCC 4098 of 1982' and later '(HCCC 408 of 1982)'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "MACHANI V VERNOOR [1985] KECA 124 (KLR)", Case Analysis (1985). Civil Appeal No 61 of 1984. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1985/124/eng@1985-10-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.