Introduction
The Presumption of Marriage in the Post-Marriage Act, 2014 is one of the most debated family law topics in Kenya today. While the Marriage Act, 2014 sought to streamline and formalize all marriages, a large portion of Kenyan couples continue to live in unregistered unions—commonly known as come-we-stay relationships.
These informal arrangements raise critical questions about whether such unions can still be legally recognized. To understand how courts deal with these situations, it’s essential to explore how the doctrine of presumption of marriage has evolved after the enactment of the Marriage Act, 2014.
Understanding the Presumption of Marriage in the Post-Marriage Act, 2014
The doctrine of presumption of marriage is a long-standing common law principle designed to protect partners in informal unions. It allows courts to infer the existence of a valid marriage based on long cohabitation and public reputation as husband and wife—even when no formal ceremony or registration has occurred.
This doctrine has historically safeguarded rights related to property, succession, and spousal recognition for couples whose relationships lack documentation.
It was first recognized in landmark Kenyan cases such as:
- Hortensiah Wanjiku Yawe v Public Trustee [1976] eKLR
- Mary Njoki v John Kinyanjui Mutheru & 3 Others [1985] eKLR
In Mary Njoki, the court emphasized that presumption of marriage is not tied to any specific system of marriage but arises from credible evidence of a marital relationship recognized by society.
The Legal Background: Marriage Act, 2014 and Informal Unions
The Marriage Act, 2014 was enacted to provide a unified framework for all marriages in Kenya, as envisioned under Article 45 of the Constitution.
The Act recognizes only five types of marriage:
- Civil
- Christian
- Islamic
- Hindu
- Customary
It requires that:
- New customary marriages be registered within six months of celebration, and
- Existing marriages be registered within three years of the Act’s commencement.
However, the Act does not recognize informal or come-we-stay unions, leaving many partners legally unprotected. This gap in the law continues to give relevance to the Presumption of Marriage in the Post-Marriage Act, 2014 as an equitable safeguard.
Judicial Interpretation of Presumption of Marriage in the Post-Marriage Act Era
After the enactment of the Marriage Act, courts issued varied rulings on the continued applicability of the presumption of marriage.
For instance, in Ngeywa & Another v Watima [2022] KEHC 13421 (KLR), the High Court described the doctrine as “of historical importance only.”
Similarly, in MNK v POM; Initiative for Strategic Litigation in Africa (ISLA) (Amicus Curiae) [2023] KESC 2 (KLR), the Supreme Court remarked that the doctrine was “on its deathbed.”
However, the same Supreme Court later affirmed that presumption of marriage still exists, though under stricter evidentiary requirements.
Elements Required to Prove Presumption of Marriage
For an applicant to succeed under the Presumption of Marriage in the Post-Marriage Act, 2014, the following elements must be proven on a balance of probabilities:
- Prolonged Cohabitation – Continuous living together as spouses for a significant period.
- Legal Capacity – Both parties were legally free to marry at the start of the relationship (as confirmed in PWK v EWK [2024] KEHC 12 (KLR)).
- Intention to Marry – Demonstrated intent beyond companionship, such as dowry payment or performance of customary rites.
- Consent – Both parties mutually agreed to enter a marital relationship.
- Public Reputation – Recognition by the community or family as husband and wife.
- Burden of Proof – The claimant must establish the existence of a marital relationship.
- Rebuttal Evidence – Any rebuttal must be strong, credible, and conclusive.
The courts also note that cohabitation alone does not create a marriage—the relationship must display intent, reputation, and mutual acknowledgment.
Recent Cases Upholding the Presumption of Marriage
Following the Supreme Court’s guidance, Kenyan courts have continued to apply the presumption of marriage in meritorious cases.
In PWK v EWK [2024] KEHC 12146 (KLR), the High Court ruled that failure to register a customary marriage under Section 55 of the Marriage Act did not invalidate a pre-2014 union. The court inferred a presumed marriage from long cohabitation and public recognition, safeguarding rights accrued through years of companionship.
Similarly, in JKN v JNK [2025] (unreported)—a matter successfully litigated by Wanjiku Maina & Co. Advocates—the court recognized a presumption of marriage based on:
- Twelve years of cohabitation (2011–2023),
- Witness testimony confirming marital reputation,
- Medical insurance records listing one as a dependent,
- Partial customary rites performed, and
- Failure of the respondent to rebut the claim.
These decisions affirm that the Presumption of Marriage in the Post-Marriage Act, 2014 continues to offer protection to genuine partners in long-term relationships.
Conclusion
While the Marriage Act, 2014 formalized marriage registration in Kenya, it did not erase the equitable role of the presumption of marriage. Courts still rely on it—carefully and sparingly—to prevent injustice where partners have lived together as spouses but lack formal documentation.
For many Kenyans in unregistered unions, the Presumption of Marriage in the Post-Marriage Act, 2014 remains a lifeline—preserving dignity, protecting property rights, and ensuring fairness in family law disputes.
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