What is an off-plan contract? What is a conventional contract? COMPARISON AND CONTRAST THE CONTENTS OF AN OFF-PLAN CONTRACT AND A CONVENTIONAL CONTRACT FOR THE SALE OF LAND

 COMPARISON AND CONTRAST THE CONTENTS OF AN OFF-PLAN CONTRACT AND A CONVENTIONAL CONTRACT FOR THE SALE OF LAND

Introduction

An off-plan contract occurs where an investor invests money in a property, or a project that is yet to be completed whereas a conventional contract for the sale of land is a transaction that involves the sale of an actual land for an agreed consideration.

Legal framework

Section 23(3) of the Law of Contract Act CAP 23 Laws of Kenya, stipulates that all contracts with regard to the disposition of an interest in land must be in writing, signed, and witnessed by a person who was present during the signing of the contract.

Therefore, regardless of the nature of the Contract be it Off-plan or the Conventional Contract for Sale of Land, the law of Contract out rightly stipulates that it should be reduced to writing, signed, and witnessed by both parties.

The contrast between the contents of an off-plan contract and a conventional contract for the sale of land

The process of purchasing an off-plan property commences with the signing of three documents:

i) The Reservation Form – This is to reserve or book the unit as the buyer and effectively notify the developer not to sell the unit;

ii) The Letter of Offer – This indicates the amount of money that the developer is willing to accept in exchange for granting ownership of the off-plan property to the buyer;

iii) Sale Agreement – This is the final and binding document once the developer and the buyer have agreed on the property to be sold, the price, deposit to be paid, payment period, and the mode of payment.

The aforementioned process of commencing the purchase of an off-plan property departs from how a conventional contract for the sale of land commences as it kicks off by executing a reservation form, unlike the conventional contract which kicks off by issuance of a letter of offer. 

A tabular contrast of the variance:-

 

OFF-PLAN CONTRACT	CONVENTIONAL CONTRACT
Deposit more than 10%. Usually 25% or as per agreement	Standard Deposits of 10% purchase price
Payments of purchase price split in many installments	Two installments or pursuant to an agreement made by the parties to the Contract.
The completion period usually long enough to allow development e.g. 2 years	The completion period usually fixed at 3 months
Specified physical conditions that is the buyer can make recommendations to the developer on certain specific.	Land sold as it is
An off-plan Contract thrives on a promise to deliver the property the buyer has paid for.	A conventional contract involves a subject matter that is exchanged for a consideration

 

Similarities between an off-plan contract and a conventional contract for the sale of land.

Despite, the variance that we have established in the aforementioned analysis of the two types of Contracts being the Conventional Contract for Sale of Land and Off-plan Contract there still exists similarities as highlighted hereunder:-

                                                       I.            They subscribe to the law of Contract being, The Law of Contract Act, CAP 23 Laws of Kenya;

                                                    II.            They facilitate the purchase of a property; and

                                                 III.            They are enforceable in case of default.

The process of buying property/Land Transfer in Kenya

 The process of buying property in Kenya is as below;

1. 1. Identify the property you would like to buy

2. 2. Conduct legal due diligence

3. 3. Carry out the transfer of the property

Identify the property you would like to buy

The most popular way is by word of mouth or through a real estate agent or through newspaper advertisements. You can also talk to lawyers who are sometimes contracted by their clients to sell property on their behalf.

Conduct legal due diligence

At this stage, it’s important to identify a lawyer you would like to work with who will help you with the following stages of the transaction

Conduct a search

Why do you need to conduct a Search?

1. To ascertain the ownership of the property

2. To check the property for any encumbrances

3. To check for any land rates that may have accrued.

If it’s a company or land buying company, obtain the CR12 from the Registrar of Companies to ascertain that;

1. The company is still in existence.

2. Who are the directors of the company.

You may further want to do a case search on the Kenya Law website to ascertain that the company/Housing Sacco has not been sued by other buyers for similar transactions. It may be useful to visit the company offices or contract someone to do the same on your behalf.

A search is done at the Ministry of Lands registry and could take 1-3 days.

Land Survey Plan
A land survey plan is a specialized map of a parcel of land . It determines and delineates boundary locations, building locations and physical features .The plans are issued by the Ministry of lands and Physical Planning through the Department of Survey.

Obtain the Land Clearance Certificate and Land Rent Certificates

Depending on the land tenure regime, the land rates and rent if unpaid will need to be paid so that you can obtain the Clearance Certificates.

Valuation of the Land and Payment of Stamp Duty

The Government Valuer will visit the property so as to ascertain the value of the property. The stamp duty will be assessed based on the value given by the Government Valuer. The next step is the payment of the stamp duty to the Kenya Revenue Authority. For this, you will require both the transferor and transferee PIN. Depending on the value of the property, a Capital Gains Tax may apply. Read more about Capital Gains Tax here.

Carry out the registration and transfer of land

Once you are satisfied that the property is free from any encumbrances or illegalities, your lawyer should draft a sale agreement for both the transferee and transferor to sign. Some agreements may provide that at least a deposit of 10% of the purchase price be paid upon signing of the sale agreement.

Both the buyer and seller will be required to provide the following documents;

1. National Identity Card/Passport

2. Personal Identification Certificate (PIN)

3. 3 copies of photographs

Transfer process

Once stamp duty has been paid, the transfer documents are lodged with the Registrar of Lands. The Registry will process the transfer and the registration process will be complete upon entry and change of ownership of the title.

Duration

A land transfer process currently may take upto Four (4) to six (6) months due to the delays at the Registry. There is currently a digitization process that is taking place that may make the process shorter.

Legal fees associated with the transfer of property in Kenya

Legal Fees are regulated in Kenya and the fee charged is based on the Remuneration Order.

What is a Limited Liability Company (LLC)? What are the common characteristics of an LLC?

 LIMITED LIABILITY COMPANIES

If promoters wish to carry on business through the medium of limited liability companies they must choose which one of the various types of company they wish to form. The first choice is for the promoters to consider between limited and unlimited companies. If a company is limited it could be by shares or guarantee, if not limited it would be an unlimited company. Section 8 of the companies Act provides that for purposes of the Act, a company is an unlimited company if:

a) There is no limit on the liability of its members.

b) Its certificate of incorporation states that the liability of its members is unlimited.

c) Its certificate of incorporation states that it is a private company.

"Any seven or more persons or where the company to be formed will be a private company, any two or more persons associated for any lawful purpose may by subscribing their names to a memorandum of Association and otherwise complying with the requirements of this Act in respect of registration from an incorporated company with or without limited liability."

If the company is a profit making concern then it is wise to have a company limited by shared if not the company limited by guarantee is more suitable.

The promoters must also decide whether the company is to be private or public. Section 9 of the companies Act, defines a private company to mean a company which by its Articles

(i) Restricts the right to transfer its shares.

(ii) Limits the number of its members to filling not including persons who are the company and persons who having been formally in the employment of the company were while in that employment, and have continued after the determination of that employment to be members of the company.

(iii) Prohibits any invitation to the public to subscribe for any shares or debentures of the company.

(iv) Is not a company limited by gurantee.

Any company which does not fall in this definition is a public company. In order to form a public company, there must be at least seven persons to sign the memorandum of Association.

Types of Companies/Company Law/Commercial Transaction/

1.0 Limited Companies ( Section 5)

• a company is a limited company if it is a company limited by shares or by guarantee

1.1 Companies limited by shares (Section 6)

• liability of its members is limited by the company's articles to any amount unpaid on the shares held by the members

• the liability of the members of an existing company is taken to be limited by the company's articles to any amount unpaid on the shares held by the members if a condition of the memorandum of association of the company stating that the liability of the members is limited is regarded as a provision of the articles by virtue of section 70 (Conversion of a private company to a public company)

1.2 Companies limited by guarantee (Section 7)

• a company is a company limited by guarantee if—

• it does not have a share capital;

• the liability of its members is limited by the company's articles to the amount that the members undertake, by those articles, to contribute to the assets of the company in the event of its liquidation; and

• its certificate of incorporate states that it is a company limited by guarantee


• A company limited by guarantee can have a share capital if it was formed and registered before the commencement of this section.

2.0 Unlimited Companies (Section 8)

• a company is an unlimited company if—

• (a)there is no limit on the liability of its members; and

• (b)its certificate of incorporation states that the liability of its members is unlimited

Additional information about unlimited companies

- No limit on the liability of its members (Liability of members not restricted to share capital)

- Must have at least two members (otherwise, there is no distinction from sole proprietorship)

- Once registered the company must have ‘unlimited’ in all its communications

Unlimited company is began when there is no start-up capital and there is need to assure the investors

A wholly owned subsidiary of a strong subsidiary can afford not to have share capital because if liability arises, there is guarantee from the holding company that they will assume liability

BUT it’s not a common form of company therefore not easy to attract funding for unlimited companies

Erodes the core benefit of companies as entities which is to restrict the liability of the members from that of the company

3.0 Private Companies (Section 9)

• a company is a private company if—

• (a)its articles—

• (i)restrict a member's right to transfer shares;

• (ii)limit the number of members to fifty; and

• (iii)prohibit invitations to the public to subscribe for shares or debentures of the company;

• (b)it is not a company limited by guarantee; and

• (c) its certificate of incorporation states that it is a private company

• two or more persons who hold shares in a company jointly are taken to be a single member.


Additional characteristics

- It can have a minimum of one person

- Can have one director

- Doesn’t have to have a company secretary

- Must have share capital

- Must in all stationery/correspondence the words ltd.

Core rationale- to maintain control of shareholding and active decision-making

BUT a private limited liability company has a limitation of attracting capital from a wide source of ranges


4.0 Public Companies ( Section 10)

• a company is a public company if—

• (a)its articles allow its members the right to transfer their shares in the company;

• (b)its articles do not prohibit invitations to the public to subscribe for shares or debentures of the company; and

• (c)its certificate of incorporation states that it is a public company

Additional information

- Must have a company secretary

- Must have at least two members

- Must have at least two directors

- Must have share capital

- In all its stationery/correspondence must have the word plc.

Can float shares to the public thus being able to raise more capital. The shares are easily transferable and have fewer restrictions

A public company has enhanced compliance and supervisory regime- must make financial returns and reports public, must have CS

A public company has a market for its shares whereas a private co does not.

BUT it is expensive and complex to run; decision making is curbed and is costly, time-consuming and complex (must send notices 21 days before making decisions)


You can’t restrict who comes in thus leading to less control. This can be mitigated by limiting the number of shares that can be transferred.

CONSTITUTIONAL LAW II - LAW NOTES

SUBJECT: CONSTITUTIONAL LAW II

LESSON 1

THE LEGISLATURE 

Nature and Meaning

Legislative bodies are representative organs expressing the will of the people as the sovereign. They form an integral component of any constitutional government.

Legislative bodies are anchors of the peoples’ will which is transferred into the will of the State through law and policy. Once the State legislates, it expresses the sovereign will of its citizens through such law.

These bodies are refereed to using different terminologies across various jurisdictions. In the British tradition, it is called Parliament. In other jurisdictions, they are referred to as Congress or simply the Assembly. 

By whatever name they are called, the main function of legislative bodies is to legislate or make law. This is either by enacting new laws or amending existing ones. Hence the organs are generally also called the Legislature. 

Apart from lawmaking, legislative arms of government perform other functions. These include oversight. For example, the Kenyan Legislature is mandated to oversight other arms of government in respect of their expenditure of public finances. The various functions of the legislature shall be examined shortly.

Types of Parliamentary Systems

Unicameral or Bicameral

This relates to the structure of Parliament at national level. The structure may provide for a single or two chambers Parliament.

A centralized government often adopts a single chamber Parliament. On the other hand federal or quasi federal systems of government usually adopt a two-chamber Parliament. The essence here is to have Senate addressing the legislative agenda for the county units.

Centralized or De-centralized 

Parliaments are often designed along the system of government that is adopted by a country. Where we have a centralized government, the country will have a centralized Parliament. In this sense, Parliament is not devolved. An example of this form of Parliament is the Parliament Kenya had prior to the 2010 Constitution.

Where we have a federal or semi federal system of government, the powers of the legislature are spread to sub-state level legislatures. These legislatures are empowered to legislate for their respective regions. For instance, under Article 185(2) of the Constitution 2010, the county assemblies are empowered to legislate in respect of matters touching on their areas of influence.

Parliamentary or Presidential Executives

A country may adopt a Presidential or Parliamentary Executives system of government as a matter of constitutional design. The former is referred to as a presidential system of government whilst the latter is a Parliamentary system of government.

A Presidential system of government is one in which the executive branch exists outside Parliament. Members of the executive are not derived from the legislature and the President is directly elected by the people without the need for electing him as a member of the legislature.

In a presidential system Parliament is distinct from the Executive. Therefore, the President does not propose bills for passage by Parliament. However, he/she retains power to veto laws formulated by Parliament and require revision of them before his/her assent is given. This power notwithstanding, the legislature has power, exploiting the supermajority principle, to override the veto.

In Kenya, the Constitution creates a presidential system of government in which both the President and the cabinet are not members of Parliament. This draws a clear severance of the linkages between Parliament and the Executive.

Conversely a parliamentary system of government the head of government and cabinet are also members of the legislature. The president, even when directly elected by the electorate, is both in the legislature and the executive. The president as well appoints his cabinet from among members of the legislature. An example of this is the arrangement of government under the 1969 Constitution of Kenya.

In other jurisdiction, the legislature actually elects the head of government. A typical example here is Britain. This type of government allows for some fusion between the executive and the legislature.

The Concept of Sovereignty of Parliament

The concept of sovereignty of Parliament is usually associated with the British constitutional tradition. Underlining it is the theory of monopoly of Parliament in the law making process. It underscores the fact that the repository of legislative power is Parliament and once it makes laws, they must be unconditionally upheld by the other organs of government.

Also referred to as parliamentary supremacy, the notion of parliamentary sovereignty is associated with the British tradition because of its absence of a written constitution. This assertion may however be misleading. The accurate position is that Britain’s constitution is contained in a series of statutory provisions and traditions. It is therefore perhaps right to think of it as written albeit in various instruments. This notwithstanding, the general and popular description is that Britain has an unwritten constitution.

The critical thing is that in this tradition, there is no law that proclaims its supremacy over the institution called Parliament. Therefore, as a legislative organ, Parliament makes laws which bind all other organs of government. No other institution, including courts of law, can question the validity of the laws as passed by parliament.

This is contradistinguished with states which have written constitutions that establish all organs of government including parliament. In effect, where the constitution does this, it allocates and constrains the power of these state organs. The constitution then becomes sovereign and supreme. All organs, including parliament must exercise their mandate strictly within the confines of the constitution.

Usually, the constitution will provide for invalidation of actions by any state organ that exceeds the powers granted to it. This includes parliament. This power is often conferred on the judiciary. The judiciary will be empowered to review the exercise of functions by all other arms of government and strike down those that are in excess of their mandate. This power is called the power of judicial review. In such case, the doctrine of sovereignty of parliament has no application.

Although Kenya borrowed partially its government design from Britain, one critical departure from the British tradition is the promulgation of a written constitution that establishes organs of government. The constitution also proclaimed itself as supreme. The doctrine of sovereignty of parliament has therefore had no application to Kenya’s constitutional design from independence. 

The concept of sovereignty of the constitution in contradistinction with sovereignty of parliament provides a centre for interplay between the Judiciary and Parliament in terms of the doctrines of separation of powers and checks and balances. By it, the constitution confers on the Judiciary the power of judicial review which mandates it to review and declare invalid any laws which conflict the the constitution. In this way, the Judiciary plays a critical role in controlling the legislative mandate of Parliament.

Major Functions of Parliament

Representation

Parliaments across the world are viewed as people’s representatives. Members of Parliament are appointed or elected to represent various groups and interests. They articulate the needs of their constituents in government. They are therefore considered as the mouthpiece of those on whose behalf they act.

Representation here involves listening to the views of one’s constituents and articulating them on the floor of the House. In this sense, it has been argued that Parliament is perhaps one of the closest and most accessible arms of government to the citizen. This is perhaps correct considering that parliamentary activities are often conducted in open plenary where citizens and the media have full access.

In relation to the Kenyan Parliament, several provisions underpin its representative nature. These are:-  

Article 94(2) of the Constitution which proclaims Parliament as representing the will of the people and exercising their sovereign power.

Article 95(1) of the Constitution which declares the role of the National Assembly as one of representation of the people of the constituencies and special interests in the House. Article 95(2) of the Constitution vests the National Assembly with the mandate to deliberate on and resolve

Article 96(1) which declares Senate as representative of the Counties and as serving and protecting the interest their governments.

Legislation

The Legislature’s other major function is to make law to govern society. Lawmaking process is usually in the form of creation of legal norms. It includes passing of new laws and as well amending existing ones. In law making, an idea of law is worked through various stages towards transforming it into a piece of legislation.

Law making is usually a rigorous process. It seeks to give norms the force of law that enables their enforcement by other institutions of government. The process is undertaken first preparing a bill. The bill is then scrutinized before being adopted and published into law.

The primary position in law is that legislative power vests exclusively in Parliament. However, the law recognizes that Parliament may delegate this power to other organs of government. Where this is done, article 94(6) requires that the limits of the authority be clearly defined.

Article 94(1) of the Constitution of Kenya vests legislative power in Parliament. In addition Parliament has some limited powers to review and amend sections of the Constitution by virtue of article 94(3) of the Constitution.

Article 95(3) of the Constitution empowers the National Assembly to enact laws in accordance with the provisions of the Constitution. By virtue of Article 96 (2) of the Constitution, Senate is also empowered to pass legislation touching on county governments in consultation with the National Assembly.

The legislative mandate of Parliament provides one of the critical areas for interplay between the Executive and the Legislature. In a sense, it pays homage to the twin theory of separation of powers and checks and balances. While, the core function of the Executive is to make and implement policies in the public realm, implementation of these policies must be backed by laws. And it falls on the Legislature to make these laws. In a sense therefore, the Legislature plays a critical role in checking the mandate of the Executive by designing laws that will guide implementation of policies by the latter.

Oversight

In addition to the foregoing functions, Legislatures also play the critical role of overseeing the execution of functions and expenditure of the other government organs. Oversight is a critical devise through which Parliament exercises its mandate of checks and balances over other organs of government. Through this, Parliament is able to ensure functions of other government organs are executed in the manner provided for by law.

Article 94(4) of the Constitution empowers Parliament to protect the Constitution and promote democratic governance of the Republic. Under article 10 of the Constitution, one of the national values is to ensure accountability. Parliament ensures protection of this constitutional value through its oversight role.

Article 95(4) and (5) the National Assembly plays a critical oversight role on national finances and reviews the conduct in office of the President, the Deputy President and other state officers. The National Assembly has power to initiate removal from office of these officers.

Similarly Senate is empowered under Article 96(3) to exercise oversight over national revenue allocated to county governments. And under Article 96(4) it participates in the oversight of state officers including participating in decisions touching on the removal of the President and his deputy.

Other Functions

Promotion of democratic governance

 This is through ensuring expansion and protection of the democratic space in the country. This can be done through discharging the other functions discussed earlier. For instance, Parliament is by virtue of article 100 of the Constitution required to pass legislation that will facilitate inclusion of marginalized groups into governance structures in the country. In this way Parliament uses its legislative mandate to promote democratic governance in Kenya. 

Appropriation of Public Funds for Expenditure

This is essentially the budgetary approval process. This power is provided for under Article 95(4) of the Constitution. Under the Article, the power lies with the National Assembly to allocate public funds for expenditure between the two levels of government and as well other state organs. It does appear that residual budgetary powers also lie with the Senate in respect of expenditure by devolved governments by virtue of Article 96(3) of the Constitution.

The budgetary process results in authorization of expenditure of public resources by state organs to meet public objects. This is another area where the Legislature plays its central role of checking and balancing the exercise of power by the Executive. Approvals for expenditure come in the form of the Appropriation Acts and approval of taxations to raise funds comes in the form of the Finance Acts. The fact that parliament must sanction these processes is critical in checking the exercise of Executive power in this respect.

Approval of Declarations of War and States of Emergency

This is a power reserved for the National Assembly. Whilst the President declares war and a state of emergency, this can only be validated by approval of the National Assembly. In a sense, this power to the National Assembly is also mean to check the exercise of executive powers in this regard. 

HISTORY OF THE LEGISLATURE IN KENYA

Pre-Independence

The institution of the Legislature first comes into the history of Kenya through the East Africa Order in Council of 1906 which made provision for the establishment of two critical governance institutions: the Executive Council and the Legislative Council. Even then, the Legislative Council was purely for reasons of advancing the interest of the settler community who had demanded for a body through which they could raise their grievances. Indeed, there was no representation of Africans in the Council until 1944.

The core functions of the Council were to make laws and provide representation. Even then, the Legislative Council was still severely constrained in its mandate. First, the British government reserved powers to make laws for the colony. Second, the Governor General retained substantial control over the Council. The Governor served as the leader of the Legislative Council with the speaker serving as his principal assistant.

The structure of the Legislative Council remained relatively the same throughout the colonial period with minor changes to it mainly geared to enlarging representation of non-Europeans in the body. However, as the country neared self rule, substantial changes to the structure of the Legislative Council were made. It was redesigned along the Westminster style of Parliament. The incoming independence constitution provided for:-

A national legislature with two houses: Senate as the upper house and the House of Representatives as the lower house.

Regional assemblies popularly referred to as majimbos. 

Members of the Legislature were to be selected through a popular election by the electorate. The Governor would then appoint a Prime Minister from the Legislative Assembly. This was the leader of the majority. The Governor would also appoint his Ministers from members of the party from which the Prime Minister had been appointed. Together, the Prime Minister and Ministers would constitute the Cabinet which was collectively responsible to the Legislature.

 

The largest losing party in the Legislature will then take on the position of the official opposition with the mandate to form the shadow Cabinet. Their role in Parliament was to keep the government of the day on its toes with the hope of displacing it but only through constitutional means. 

The Kenyan Parliament 1963-2010

Dual Westminster Model Legislature

On attaining its independence, Kenya embraced an entirely representative legislative body. The independence Constitution created a two-tier national legislature with the Senate as the upper house and the House of Representatives as the lower house. 

The two houses shared legislative power at national level. While the Senate’s main role was to protect regional governments from undue interference by the central government, the House of Representatives focused on national legislation that applied across the regions.

Importantly, the majimbo system of government also created regional assemblies. These assemblies had legislative and oversight powers for the regions they served.

Unitary Legislature

However, several constitutional amendments gradually weakened and eventually scrapped this system of government. First, the regional governments were deprived of sufficient funds to run their agenda. Eventually, through the 1966 constitutional amendment, Senate was scrapped and its members moved to the National Assembly. As a consequence, by 1967 Kenya’s Parliament effectively converted from a bicameral to a unicameral Parliament.

This system of Parliament was to remain in place until the promulgation of the Constitution of Kenya 2010. They system essentially embraced a parliamentary system of government.

The system has been heavily criticized as having resulted in a weak Parliament which was effectively controlled by the Executive. As a result it has been observed that the legislature was most of the time, a mere rubber stamp of the Executive.

The Legislature Post 2010

The Constitution of Kenya brings with it an entirely new system of government with a new design of Legislature. The Constitution creates a devolved system of government with a total of 47 counties. Each of the counties has a county executive and legislature. This system of government is entrenched under chapter 11 of the Constitution. Like the independence Constitution, the 2010 Constitution allocates considerable legislative and executive powers to the county assemblies and executives respectively within their jurisdictions.

At national level and by dint of Article 93(1), the Constitution creates a bicameral Parliament with two houses; the Senate and the National Assembly. By Article 94, the Legislature is vested with the people’s sovereign power to legislate. 

The National Assembly

It is comprised of 349 legislators and a speaker as an ex-officio member. Of this, 290 are elected on single member constituency basis. 47 are elected as county women representatives, each county constituting a single electoral constituency for this purpose. Finally, 12 other persons are nominated to serve special interest groups.

The National Assembly has various roles as discussed earlier in this lesson. These include:-

Representing people of the constituency and special interest groups on the floor of the house.

Deliberating and resolving issues that are of concern to the people.

Enacting legislation.

Budgetary process.

Oversight of other government organs including the President and his deputy.

Approval of declarations of war and states of emergency.

Senate

This consists of 68 members. 47 are directly elected from each of the 47 counties as single constituencies. 16 are women representatives nominated by political parties. 2 members represent the youth and 2 others represent persons with disabilities. The speaker is an ex-officio member.

The role of Senate includes:-

Representation and protection of the interests of counties.

Law making with focus on county laws.

Allocation of national revenue to county governments.

Oversight of county governments.

Oversight in respect of other state officers including the President and his/her deputy.

Qualification for Election as Member of Parliament and their Removal from Office

These are set out in the Constitution. Students are asked to acquaint themselves with the requirements. The point to take home here is that removal of Parliamentarians, whether through fresh elections or the right of recall, is an important tool to promote accountability in the legislature.

Law Making Process

This is undertaken through the passage of bills into law. The National Assembly can originate any bill for debate. These include bills proposing national laws and laws that will affect county governments. 

Bills relating to county governments may however originate from either of the houses. They must then be debated and approved by both houses. There is however an exception in relation to money bills. All such bills must originate from the National Assembly, whether they affect county governments or not.

Bills on laws that do not touch on county government cannot be originated by Senate. They are exclusively generated by the National Assembly.

For bills that are to be debated by both houses, the bill is first debated by the house originating it. If passed, the speaker of the originating house then forwards it to the other house for debate. If passed without changes, the bill is returned to the speaker of the originating house who then passes it onto the President for assent within the prescribed time.

Where one house passes a bill but the other house rejects it, the bill is send to a mediation committee. Similar consideration attends a bill which is amended by one house and the amendments are declined by the originating house.

Presidential Assent

Bills approved by Parliament go to the President for assent. The President has 14 days to assent to the bill or return it to the house that originated it for re-evaluation.

Once returned the house has three options: it may revise the bill as recommended by the President and return it for assent; it may incorporate some but not all the corrections proposed by the President and resubmit the bill for assent; it may reject the recommendations for change entirely and resubmit the bill for assent. In the latter two scenarios, the decision of the house must be supported by two thirds of its members.

When returned, the President has 7 days to assent to and sign a bill into law. If he neglects to do so within the stipulated period of the bill being send back to him, it automatically becomes law.

Once assented to or deemed as assented to, the bill is published in the Kenya gazette as an Act of Parliament. It becomes law within 14 days of publication.

County Legislatures

These are part of the devolved government system under the constitution of Kenya 2010. Kenya has 47 County Assemblies that are distinct from one another. They are comprised of ward representatives also called Members of County Assembly (MCA’s) and the County Speaker as an -officio member. MCA’s are elected by registered voters at ward level. The County Assemblies also have special seats to bridge the two thirds gender, youth and persons with disabilities requirements.

Major Roles of County Assemblies

Law making

The Assemblies make laws at county level. The laws are to facilitate the proper functioning of the County Governments. These laws must not conflict with national laws.

Vetting of County Officials

The Assemblies vet nominees to county offices. These include members of the County Service Boards, county executive, county chief officers and the speaker.

Oversight

This is a critical function of the county assemblies. They oversight the county executive and as well other county departments and officers.

Budget Making

County Assemblies are involved in the making and approval of county budgets. By virtue of article 207 of the constitution, county assemblies must approve withdrawal and expenditure of funds by the county government.

Approval of County Borrowing

County Assemblies also approve borrowings by county governments. This is in addition to the guarantee for such borrowing by the national government.

Case Analysis/Discussion: CWN v DK [2021] eKLR (whether the plaintiff and the defendant were married/whether the suit property is a matrimonial property)

 Issues for determination:

Two major questions arise in this suit; 

• the first question is whether the plaintiff and the defendant were married and 
• the second one is whether the suit property is a matrimonial property

These issues have been discussed in detail in the case. The honorable Court discussed the issues as follows:

Analysis:

"...

4. Analysis, determination:

Two major questions arise in this suit; the first question is whether the plaintiff and the defendant were married and the second one is whether the suit property is a matrimonial property; they are, in a way related, to the extent that the plaintiff’s case is that she was not only married to the defendant but that they both dwelt in this property in their capacity as a married couple and, for this reason, she wants the court to declare the property a matrimonial property.

The link between marriage and matrimonial property is certainly section 6(1)(a) as read with section 2 of the Matrimonial Property Act, 2013. According to section 6(1)(a) ‘matrimonial property’ means, inter alia, matrimonial home or homes; a ‘matrimonial home’ is itself defined in section 2 of this Act to mean ‘any property that is owned or leased by one or both spouses and occupied or utilized by the spouses as their family home, and includes any other attached property.’ In the same section, a spouse is defined to mean ‘a husband or a wife’.

Thus, one cannot talk about a matrimonial property without reference to a marriage. Logically, therefore, if the court was to find that the plaintiff was married to the defendant irrespective of whether the marriage was solemnised under the Kikuyu customs or was a marriage by presumption, then the next question for determination would be whether the suit property should be declared a matrimonial property. Conversely, this latter question would be moot if the court was to find that there was no marriage of any sort between the disputants.

The plaintiff’s approach to the first question of her alleged marriage to the defendant is two-pronged; on the one hand, she posits that her marriage was solemnised under Kikuyu customs though she admits that these customs were never concluded. On the other hand, she puts forth the argument that having cohabited with the defendant for some time, a presumption of marriage between her and the defendant ought to be inferred.

The question of whether the plaintiff was married to the applicant in accordance with the Agikuyu customs can be disposed of relatively easily; by her own admission, the plaintiff has stated that nothing more happened apart from the defendant meeting her relatives once; in any event, doubts were raised whether the meeting qualified as one of those meetings that would be considered or recognised as mandatory or necessary towards arrangement and conclusion of marriage rites under Kikuyu customs. My own assessment of that meeting was that it was a casual meeting and as far as Kikuyu customs are concerned, it was inconsequential. No evidence was led to the contrary view.

But evening assuming that the necessary customary rites were performed to the extent that the plaintiff would consider herself as having been married under these customs, the applicant is caught out by section 96(2) and (3) of the Marriage Act, 2014 which require that customary marriages contracted before the commencement of the Act to be registered within three years of the date of commencement of the Act; that section reads as follows:

96 (1) …

(2) Parties to a marriage contracted under customary law, the Hindu Marriage and Divorce Act (Cap. 157) (now repealed) or the Islamic Marriage and Divorce Registration Act (now repealed) before commencement of this Act, which is not registered shall apply to the Registrar or County Registrar to assistant Registrar for the registration of that marriage under this Act within three years of the coming to force of this Act.

(3) The parties to a customary marriage shall register such a marriage within three years of the coming to force of this Act.

                    (4) …

The commencement date of this Act is indicated in the Act itself to be 20 May 2014; as at the time the plaintiff testified on 8 May 2018 there was no evidence that the alleged marriage had been registered in accordance with this Act. Section 96 (4) provides that the Cabinet Secretary may extend the registration period by notice in the Gazette; however, if there was such an extension, no evidence was provided that the plaintiff was still within time to register the marriage.

If the marriage had been registered in accordance with the Act, the plaintiff and, of course, the defendant, would have been issued with a certificate under section 55(1) thereof and, according to section 59 of this Act, this certificate would have been conclusive proof that indeed the plaintiff and the defendant are married under customary law. As far as they are relevant to this judgment, the pertinent parts of this section provide as follows:

59.    Evidence of marriage

(1) A marriage may be proven in Kenya by—

(a)    a certificate of marriage issued under this Act or any other written law;

(b) a certified copy of a certificate of marriage issued under this Act or any other written law;

(c)... an entry in a register of marriages maintained under this Act or any other written law;

(d)    a certified copy of an entry in a register of marriages maintained under this Act or any other written law; or

(e)…

In the absence of proof of a customary marriage through any of the means prescribed in this section, the plaintiff’s claim that she was married to the defendant under Kikuyu customary law is wanting both in fact and in law.

As far as presumption of marriage is concerned, it is a status of relationship that turns much on evidence as much as it is a presumption of law. According to Halsbury's Laws of England/MATRIMONIAL AND CIVIL PARTNERSHIP LAW (VOLUME 72 (2009) 5TH EDITION, PARA 6 where a man and a woman have cohabited for such a length of time, in such circumstances, as to have acquired the reputation of being man and wife, a lawful marriage between them will be presumed even if there is no prior evidence of any marriage ceremony having taken place. It is ordinarily referred to as ‘common law marriage’ though this characterization is misnomer. It is a misnomer because in English law it is not a term that connotes marriage as known in law but it is used to refer to unmarried, cohabiting heterosexual couples. It is a term that does not confer on cohabiting parties any of the rights or obligations enjoyed by spouses or civil partners.

In Scotland, it was until recently considered an ‘irregular marriage’ created by cohabitation. The Family Law (Scotland) Act, 2006 which is the law that now regulates marriages in Scotland has abolished it altogether; Section 3 of that Act states as follows:

1. Abolition of marriage by cohabitation with habit and repute

(1) The rule of law by which marriage may be constituted by cohabitation with habit and repute shall cease to have effect.

(2) Nothing in subsection (1) shall affect the application of the rule in relation to cohabitation with habit and repute where the cohabitation with habit and repute-

(a) ended before the commencement of this section ("commencement");

(b) began before, but ended after, commencement; or

(c) began before, and continues after, commencement.

(3) Nothing in subsection (1) shall affect the application of the rule in relation to cohabitation with habit and repute where-

(a) the cohabitation with habit and repute began after commencement; and

(b) the conditions in subsection (4) are met.

(4) Those conditions are-

(a) that the cohabitation with habit and repute was between two persons, one of whom, ("A"), is domiciled in Scotland;

(b) that the person with whom A was cohabiting, ("B"), died domiciled in Scotland;

(c) that, before the cohabitation with habit and repute began, A and B purported to enter into a marriage ("the purported marriage") outwith the United Kingdom;

(d) that, in consequence of the purported marriage, A and B believed themselves to be married to each other and continued in that belief until B's death;

(e) that the purported marriage was invalid under the law of the place where the purported marriage was entered into; and

(f) that A became aware of the invalidity of the purported marriage only after B's death.

This development of the law in Scotland demonstrates that even in countries where this concept has previously been embraced, deliberate efforts have been made to shed it from their marriage law.

In the United States, about nine or so states recognise ‘common law marriage’; it is recognised as a form of marriage in which a couple lives together for a period of time and holds out to friends, family and the community as ‘being married’ but without ever going through a formal ceremony or getting a marriage license or certificate which is a requirement that is common to all the 50 states. Even then, the couple must have lived together for some time the amount of which varies from one state to another; the couple must have the legal right or capacity to marry; they must have intended to marry; and, they must have held themselves out to the outside world as being a married couple.

And back home, though it does not out rightly outlaw it, the Marriage Act, 2014 does not recognise this kind of marriage. Section 2 of that Act defines the word cohabit, in its technical term, as follows:

“cohabit” means to live in an arrangement in which an unmarried couple lives together in a long-term relationship that resembles a marriage.”

Three things that stand out of this definition are, one, regardless of what the intentions of a cohabiting couple may be, they do not acquire any other status than that of being unmarried and, two, perhaps to drive the point home, the relationship of the cohabiting couple only ‘resembles’ a marriage; in other words, it is not a marriage. The third aspect of this definition is, regardless of how long the couple lives together, the status of its legal relationship will not change.

When this section is read alongside sections 6 and 59 of the Marriage Act, it is reasonable to conclude that presumption of marriage by cohabitation no longer stands on a solid foundation in our marriage law infrastructure.

Section 6 lists the kinds of marriage that are recognised under the law; it states as follows:

6.  Kinds of marriages

(1) A marriage may be registered under this Act if it is celebrated—

 (a) in accordance with the rites of a Christian denomination;

(b) as a civil marriage;

(c) in accordance with the customary rites relating to any of the communities in Kenya;

(d) in accordance with the Hindu rites and ceremonies; and

(e) in accordance with Islamic law.

(2) A Christian, Hindu or civil marriage is monogamous.

(3) A marriage celebrated under customary law or Islamic law is presumed to be polygamous or potentially polygamous.

It is clear that presumption of marriage by cohabitation has been left out. One may argue that this provision of the law particularly section 6(1) thereof only refers to marriages registrable under the Marriage Act; however, there is no suggestion anywhere else in this Act or any other law, for that matter, that there are other forms of marriage that may be given the force of law other than those recognised in the Act.

Section 59 would buttress this point in that it specifies how a marriage may be proved in this country. This section reads as follows:

59.  Evidence of marriage

(1) A marriage may be proven in Kenya by—

(a)    a certificate of marriage issued under this Act or any other written law;

(b) a certified copy of a certificate of marriage issued under this Act or any other written law;

(c)... an entry in a register of marriages maintained under this Act or any other written law;

(d)    a certified copy of an entry in a register of marriages maintained under this Act or any other written law; or

(e)…

Once again no provision has been made for proof marriage by cohabitation. As much as much as it is a presumption, certain facts must be demonstrated to exist before such a presumption can be inferred; the Act neither refers to the presumption nor the facts which, like in certain States in the United States, ought to be proved.

It is worth noting that the Marriage Act itself is anchored on Article 45 (4) of the Constitution; that Article reads as follows:

45. (4) Parliament shall enact legislation that recognises—

(a) marriages concluded under any tradition, or system of religious, personal or family law; and

(b) any system of personal and family law under any tradition, or adhered to by persons professing a particular religion, to the extent that any such marriages or systems of law are consistent with this Constitution.

When these provisions of the law are considered in their entirety, it is easy to see that while Kenya may not have expressly forbidden the concept of presumption of marriage by cohabitation as Scotland did, it has, for all intents and purposes, taken similar path, albeit impliedly.

I suppose that, of the many reasons that may have informed the need for registration of marriages, protection of the marriage union that has since time immemorial been considered as sacrosanct is one of the mischiefs sought to be cured in the Marriage Act, 2014; owing to its sanctity as the foundation of the society, it is not a union whose existence should not be left to speculation or conjecture. This must have been what Articles 45 (1) and (2) of the Constitution alludes to; that Article states as follows:

45. (1) The family is the natural and fundamental unit of society and the necessary basis of social order, and shall enjoy the recognition.

(2) Every adult has the right to marry a person of the opposite sex, based on the free consent of the parties.

I am minded that under section 3 of the Judicature Act cap. 8 the jurisdiction of this Court, as that of the Court of Appeal, is to be exercised in conformity with, inter alia, the substance of the common law; but common law is subject to our written laws; it can only apply to where our written laws do not extend or apply, and only ‘so far as the circumstances of Kenya and its inhabitants permit and subject to such qualifications as those circumstances render necessary’.

This concept of presumption of marriage by cohabitation or, as the Scotch call it, ‘cohabitation with habit and repute’, would be viewed and applied in those limited circumstances, if there was any valid basis for the assumption that it is common law or it is a common law phenomenon.

In three of the cases decided by the English courts that I have come across in my little research, marriage was presumed only because the couple had mistakenly missed out on some essential step or steps towards formalising their marriage but cohabited thereafter believing that their marriage was formal or, rather, was in accordance with the law.

One such case is that of Toplin Watson vs Tate (1937) 3 ALL ER 105. The circumstances here were that the man lived in Rockhampton, in Australia, from 1860 to 1870 with a certain lady; they held themselves out to be husband and wife, and they and their children were received in local society, which would not have been the case had there been any suggestion of irregularity. The birth certificates of the children recorded the marriage of the parents as having taken place at Ballan, Victoria, on 10 January 1860, but no such marriage was registered there, although registration had there been compulsory for some years. In 1873, man’s father, who lived in England, executed a deed covenanting to make certain payments to the children or their mother and this deed contained these words: "the following reputed children of his deceased son," T B, "which children are now in England with their mother EM, otherwise EB."

It was held that the absence of any entry in the register of marriages was not sufficient to rebut the presumption of marriage of the couple and that the words in the deed of 1873 were insufficient to rebut the presumption. That the presumption of marriage can be rebutted only by evidence of the most cogent kind, and the children in question ought to be declared to be the lawful children of the man and his wife.

This case, besides dealing with the strong presumption in favour of marriage, decided that such presumption is not rebutted by reason of there being no entry in the register of marriages in respect of a marriage of known date and place celebrated in an area where registration of marriages was compulsory.

It had been argued that this was not a case of establishing a marriage by repute. The parties to the alleged marriage, having referred to a date and place, were pinned down to that date and place, and failure to establish the marriage from the records at that place, or in respect of that place, was necessarily fatal, in view of the compulsory nature of the registration administration. Even then, it was acknowledged that a ceremony of some sort was undoubtedly performed, although possibly imperfectly before the couple started cohabiting.

The words of Simonds J. in upholding the marriage are worth repeating here; the learned judge noted:

“The evidence before me is not cogent; but it is adequate to satisfy me that the man and woman lived together at Rockhampton for ten years as man and wife in the sight of that small community. They were there received into society, which was not a society of loose and uncertain morals, but with proper views as to marital relations, and were at all times regarded as man and wife. This being so, the presumption of our law is that they were man and wife. This presumption is not to be disturbed except by evidence of the most cogent kind. Here it is sought to displace the presumption in two ways. First of all, because the parties pinned themselves to a marriage at a certain date and place, and the records contain no entry of such a marriage. Whatever the compulsory nature of the administration, this cannot, in my view, displace the presumption of marriage. The absence of a record is always a possibility. The presumption rests mainly upon the notorious fact of their living together, which has been fully proved.

“The other ground upon which the presumption is sought to be displaced is that, in 1873, the deed of trust was executed; but I cannot draw from that deed any inference contrary to the presumption that I would otherwise draw. I cannot guess the motive which induced the grandparent to put into that deed those words of stigma on his son, and I find no sufficient reason in the deed for saying that the children were illegitimate.”

The other case is that of Piers vs Piers (1849) 3 HLC 331; here a question arose as to the validity of marriage celebrated in the Isle of Man by a clergyman whose status was not a matter in dispute, he having been a regularly ordained clergyman, doing duty in a church there, and as to whose capacity to celebrate marriage there was no dispute. The question was whether the marriage so celebrated was valid according to the law of the Isle of Man, requiring the special license of the bishop in cases where the marriage was celebrated, as the marriage in issue was, in a private house, and not in a church.

Arguing in support of the validity of the marriage, the appellants’ counsel urged that the marriage was valid on the ground of legal presumption. He argued further that there are three presumptions of law all which were in favour of the marriage; the first was semper praesumitur pro matrimonio: that there is a presumption of law. The next presumption is that every intendment shall be made in favour of a marriage de facto and therefore if there was a clergyman present performing the marriage ceremony, the law would presume that he was a clergyman properly authorised. The third is, where an act appears to have been performed by proper persons, the law will intend that everything was done in a proper manner. The burden of impeaching the marriage would be on the party against it.

The learned counsel for the appellants urged that these presumptions had not been considered in the court below. He further urged that the force of a legal presumption, especially in the case of marriage, and legitimacy of children, is complete, unless it is absolutely rebutted by proof.

The appeal was allowed; The Lord Chancellor who read the leading judgment held as follows:

“My Lords, I have not found that the rule of law is anywhere laid down more to my satisfaction that it is by Lord Lyndhurst in the case of Morris v. Davies (5Cl. And F. 167) as determined in this House (5Clarke and Fin. 163). It is not precisely the same presumption as exists in the present case; but the principle is strictly applicable to the presumption which we are considering. He says (see p.265), “The presumption of law is not lightly to be repelled. It is not to be broken in upon or shaken by a mere balance of probability. The evidence for the purpose of repelling it must be strong, distinct, satisfactory and conclusive.” No doubt, every case must vary as to how far the evidence may be considered as “satisfactory and conclusive;” but he lays down this rule that the presumption must prevail unless it is most satisfactorily repelled by the evidence in the cause appearing conclusive to those who have to decide upon that question.”

Turning back to the case before the House, His Lordship continued:

“We therefore have it for certain, that all the parties must have intended that a valid marriage should be celebrated; at that at least one of the parties understood the law relating to the marriage which he was celebrating.

Then we have subsequent conduct of the parties, proving beyond all question that they supposed that a valid marriage had been celebrated. The children are treated as legitimate children; the wife treated as lawful wife; and the conduct of the parties from the very beginning to the end, shows that they believed a valid marriage to have been solemnised. This is not at shaken by the fact of a subsequent marriage having taken place in Ireland. We know that that does frequently happen without the slightest imputation on the validity of the first marriage.” (Emphasis added).   

In his concurring opinion Lord Broughman noted as follows:

“I am altogether of the same opinion, and for the same reasons. I consider the rule of law to have been clearly laid down in Morris v. Davies (5 Clark and Finnelly, 163,265), by my noble and learned friend, Lord Lyndhurst. My noble and learned friend there laid down that rule in very plain terms; and if I had any doubt as to any one of the four descriptions which he gave of the evidence required to rebut the legal presumption of legitimacy, it is as to the last. I should say, “clear, distinct, and satisfactory evidence.” I am not quite prepared to use the word “conclusive.” I think some doubt may arise upon that, which it is unnecessary to raise, because if the evidence required be clear and satisfactory, that is quite sufficient for me. I do not like ever to lay down the rule that the evidence must be “conclusive, “because that gives occasion very frequently to needless and inconvenient doubt.”

But even as he acknowledged the presumption of law, the learned judge did not suppress his feelings about the sort of marriages that are only presumed in law to exist; he expressed his view about these marriages as follows:

“It is a constant course with persons who solemnize irregular marriages, which, though irregular, are perfectly valid and perfectly legal, and against which nothing either of presumption or of law can be alleged; it is a constant course for them afterwards, needlessly, superfluously, and, in my opinion, irregularly, to solemnize what is termed a regular marriage, in facie ecclesiae. I say “irregularly”, for an obvious reason; because if the first marriage is valid, the second marriage becomes an irregular marriage. The first marriage was irregular for want of certain ecclesiastical or legal solemnities; but in law it was valid. The second marriage is a mockery; because, for two persons who are single to marry is intelligible, but for two persons who are already married to marry is a mockery, and I may almost say a profanation of a very solemn rite of the church. Therefore, though I do not consider that that acting of theirs is at all to be commended, yet it is constantly had recourse to. It is a constant course for persons in a certain station in life, who make what is commonly called a runaway or irregular marriage, afterwards to marry in facie ecclesiae, for the purpose of quieting the scruples of persons of nice conscience, but also for the purpose of putting down any public clamour that may have arisen.”

This case goes to show that the law will presume in favour of marriage; there is a strong presumption in favour of marriage, particularly after the lapse of a great length of time, and this presumption must be met by strong, distinct, and satisfactory disproof.

Therefore, where two persons had shown distinct intention to marry, and a marriage had been, in form, celebrated between them, by a regularly ordained clergyman, in a private house, as if by a special licence, and the parties, by their acts at the time, showed that they believed such marriage to be a real and valid marriage, the rule of presumption is applied in favour of its validity, though no licence could be found, nor of any entry of the granting of it, or of the marriage itself, could be discovered; and though the Bishop of the diocese, when examined many years afterwards on the subject, deposed to his belief that he had never granted any licence for such marriage.

The last English decision I will refer to is the case of Mahadervan v Mahadervan [1962] 3 All ER 1108. The facts in this case were that on 16 July 1951, the husband and the wife, who were both born and domiciled in Malaya, went through a civil ceremony of marriage. On the evidence of the husband and the wife this took place at the wife's house in Ceylon before a registrar, who signed the marriage certificate subsequently in his office. The Ceylon marriage ordinance required the ceremony to take place at the registrar's office, although it could take place elsewhere by special licence. There was no evidence that a special licence had been granted in the present case. The Ceylon marriage ordinance also required the registrar to address the parties emphasising the monogamous nature of the union. There was no evidence that in the present case the registrar had fulfilled this requirement. However, the entry in the marriage register and the marriage certificate purported to show that the ceremony had been performed at the registrar's office. After the ceremony the parties returned to Malaya where they lived together until February, 1952, when the husband went to Bombay; and in 1953 he came to England, where he had since resided. Between 1952 and 1954 the husband wrote affectionate letters to the wife signing himself "Your loving husband", and he signed a letter to his mother-in-law "Your affectionate son-in-law". In 1958 the husband went through a ceremony of marriage in England. In 1960 the wife came to England where she applied for a matrimonial order before a magistrate's court on her complaint that the husband had committed adultery. The husband contended that the ceremony in July, 1951, had not constituted a valid marriage because the proper formalities had not been observed. Section 39 of the Ceylon marriage ordinance provided: "After any marriage shall have been registered under this ordinance it shall not be necessary, in support of such marriage, to give any proof ... that the place ... of marriage was the place ... prescribed by this ordinance nor shall any evidence be given to prove the contrary in any suit or legal proceedings touching the validity of such marriage". The magistrates' court made an order in the wife's favour and the husband now appealed, contending that the performance of the civil ceremony at the wife's house instead of the registrar's office, and the failure by the registrar to address the parties, invalidated the marriage.

On appeal to the Probate, Divorce and Admiralty division, it was held that where a ceremony of marriage is proved and is followed by cohabitation as man and wife, a presumption is raised which cannot be rebutted by evidence that merely goes to show on a balance of probabilities that there was no valid marriage; the evidence must be such as proves beyond reasonable doubt that there was no valid marriage.

Sir Jocelyn Simon P. held as follows:

“In my view, where a ceremony of marriage is proved, followed by cohabitation as man and wife, a presumption is raised which cannot be rebutted by evidence which merely goes to show on a balance of probabilities that there was no valid marriage: it must be evidence which satisfied beyond reasonable doubt that there was no valid marriage. In other words, the presumption in favour of marriage in such circumstances is of the same weight as the presumption of innocence in criminal and matrimonial causes. A jury would have to be directed that to displace the presumption, the husband must prove his case in such a way that they can feel sure that there was no marriage. (see page 1108).”

He also adopted the words of Sir Barnes Peacock in Sastry Velaider Aronegary v Sembecutty Vaigalie ((1881), 6 App Cas at p 371) where he noted as follows:

“It does not, therefore, appear to their Lordships that the law of Ceylon is different from that which prevails in this country; namely, that where a man and woman are proved to have lived together as man and wife, the law will presume, unless the contrary be clearly proved, that they were living together in consequence of a valid marriage, and not in a state of concubinage.”

All these decisions and the comparative law in Scotland and the United States show that the presumption of marriage is preceded by some overt act or acts by a couple or couples who, based on such acts, cohabit on the common understanding that they are married and legally so.

The path our courts have taken on this subject is, more or less, that which has been trodden by the courts in England. A few decisions of our Court of Appeal show that the concept of presumption of marriage has hitherto been embraced though, unlike in the present dispute, it is a concept that is more pronounced in succession causes whenever an issue arises on whether the surviving spouse was married to the deceased. In most cases it is the wife or one of the deceased’s wives who will be out to demonstrate that she was legally married to the deceased and therefore, in her capacity as the deceased’s surviving widow or one of his surviving widows, she is entitled to her rightful share of the deceased’s estate.

In Eva Naima Kaaka & Another vs. Tabitha Waithera Mararo (2018) eKLR the respondent applied for revocation of grant of letters of administration intestate to the deceased’s estate mainly on the ground that although she was the deceased’s second wife, she was not incorporated in the succession proceedings and, ultimately she was apprehensive that she would be disinherited. Her case was that she had not only cohabited with the deceased since the year 2008 till his death in 2014 but also that their marriage had been blessed with one issue. She also, contended that she had been married to the deceased under Kikuyu customary law.

It was established as a fact that indeed the respondent lived in the deceased’s house though not as the deceased’s wife but as a tenant.

The court (Nyakundi, J.), held that the respondent was the deceased’s wife and that a child had been born out of their union. Accordingly, he revoked the grant of letters of administration made to the appellants and directed that a fresh application for the grant of letters of administration in which the respondent would be a joint administratrix be made.

On appeal, the Court of Appeal (Nambuye, Kiage, Murgor, JJA) held that contrary to the respondent’s contentions, there was no evidence that the respondent had been married to the deceased under Kikuyu or Maasai customary law. The Court made reference to Eugene Cotran’s book, Casebook on Kenya Customary Law, where, at page 30, the essentials of a Kikuyu customary marriage are spelt out; these essentials are as follows:

“

1. Capacity; the parties must have capacity to marry and also capacity to marry each other.

2. Consent; the parties to the marriage and their respective families must consent to the union.

3. Ngurario; no marriage is valid under Kikuyu customary law unless the ngurario ram is slaughtered.

4. Ruracio; there can be no valid marriage under Kikuyu law unless a part of the ruracio (dowry) has been paid.

5. Commencement of cohabitation; the moment at which a man and a woman legally become husband and wife is when the man and woman commence cohabitation i.e. under the capture procedure when the marriage is consummated after the eight days’ seclusion, and nowadays when the bride comes to the bridegroom’s home”

In coming to the conclusion that there was no valid marriage between the respondent and the deceased, the learned judges of appeal held:

“From the above it becomes apparent that, no ram or goat was slaughtered to mark the coming into existence of a marriage. Without the presence of the central feature of the ngurario ceremony, it cannot be said that a valid Kikuyu customary marriage came into existence between Waithera and the deceased.”

On the question of whether there was a valid basis for a presumption of marriage, the court cited with approval its own decision in Phylis Njoki Karanja & 2 Others vs. Rosemary Mueni Karanja & Another (2009) eKLR where it was held that a presumption of marriage could be drawn from two factors; long cohabitation and acts of general repute. The court is quoted to have said in that case as follows:

“Before presumption of marriage can arise a party needs to establish long cohabitation and acts of general repute; that long cohabitation is not mere friendship or that the woman is not a mere concubine but that the long cohabitation ha crystallised into a marriage and it is safe to presume the existence of a marriage. (Emphasis ours).

On the same point, the Court cited the case of Mary Njoki vs. John Kinyanjui Mutheru (1985) eKLR where a presumption of marriage was rebutted on the ground that there was no evidence that ‘an essential element of a valid kikuyu marriage’ had not been satisfied.

The court held as a fact that the deceased had only one matrimonial home where he had at all times material to the suit lived with his wife and that there was no evidence of prolonged cohabitation between the deceased and the respondent and neither were there any acts of general repute that would give rise to a presumption of marriage. The house in which the respondent lived though it belonged to the deceased, was leased to the respondent and therefore she was the deceased’s tenant and not his wife.

The court further held:

“Acts of general repute, are synonymous with the impression, or assessment of the couple as perceived by the general public, including relatives and friends. By their very nature they are a determinant of whether a presumption of marriage can be found to exist.”

The court revaluated the evidence and came to the conclusion that there was nothing to show long cohabitation or acts of general repute giving rise to a presumption of marriage. Rather, ‘the evidence pointed to a casual affair between the deceased and Waithera that culminated in the birth of TNK, and which relationship was to end rather abruptly upon his untimely demise.”

In allowing the appeal, the court held that the respondent was not deceased’s wife either through a customary marriage or by presumption of marriage.

I have dwelt on this case relatively at length because it is, in so many ways, on all fours with the case before court.

In Joseis Wanjiru alias Joseis Wairimu vs. Kabui Ndegwa Kabui & Another (2014) eKLR the court (Visram, Koome and Odek, JJ. A) held that the doctrine of presumption of marriage is based on section 119 of the Evidence Act, cap. 80 which states as follows:

119. The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.

The learned judges held that a presumption of marriage is basically a presumption of fact. To quote them, the learned judges were emphatic that:

“The existence or otherwise of a marriage is a question of fact. Likewise, whether a marriage can be presumed is a question of fact. It is not dependent on any system of law except where by reason of a written law it is excluded.”

Just as it was in Eva Naima Kaaka & Another vs. Tabitha Waithera Mararo (supra), this case was also a succession dispute in which the appellant’s claim to the deceased’s estate was dismissed on the ground that she was not married to the deceased. The Court of Appeal overturned the judgment of this Court and found as a fact that the appellant had lived with the deceased from 1960 to 1975 and that the period of fifteen years was long enough to give rise to a presumption of marriage. The court cited its own decision in Hortensiah Wanjiku Yawe vs. The Public Tustee Civil Appeal No. 13 of 1976 (1976) eKLR where it was held that. ‘the presumption (of marriage) does not depend on the law or system of marriage. The presumption is simply an assumption based on very long cohabitation and repute that the parties are husband and wife…”

The facts Hortensiah Wanjiku Yawe case were that Paul Makumbi Yawe, a Ugandan by birth, and resident in Nairobi, was killed in a motor vehicle accident in Uganda on 2 May, 1972. He was employed as a pilot by the East Africa Airways Corporation at the time of his death. He died intestate. The Public Trustee of Kenya was granted letters of Administration to his estate in Kenya on 4 July, 1972.The report of death of the deceased to the Public Trustee was made by Hortensia, the appellant, who claimed that she was the deceased’s widow and that she had four children by him.

The appellant had appealed to the Court of Appeal after her quest to be recognised as the deceased’s wife had been dismissed by this court. Her case was that she met the deceased in 1962 and that they married in March, the following year. The marriage was solemnised under Kikuyu customary law and since then the couple had lived as husband and wife until his death. During the period of cohabitation, she had had four children with the deceased. They all had a matrimonial home in Nairobi West. The facts of having lived with the deceased for over 9 years and having had four children together during that period were not disputed or controverted.

In allowing the appeal, the Court held, inter alia, that the onus of proving that the appellant was married to the deceased was on the appellant herself. However, while referring to the Taplin-Watson vs. Tate (supra), the court held that long cohabitation as man and wife gave rise to the presumption of marriage in favour of appellant. And even if the proper ceremonial rituals were not carried out, that would not invalidate the marriage and on this point the court relied on the decision in Sastry Velaider Aronegary v Sembecutty Vaigalie (supra).

A. Mustafa, A.J. stated thus:   

“I can find nothing in the Restatement of African Law to suggest that Kikuyu customary law is opposed to the concept of presumption of marriage arising from long cohabitation. In my view all marriages in whatever form they take, civil or customary or religious, are basically similar, with the usual attributes and incidents attaching to them. I do not see why the concept of presumption of marriage in favour of the appellant in this case should not apply just because she was married according to Kikuyu customary law. It is a concept which is beneficial to the institution of marriage, to the status of the parties involved and to issue of their union, and in my view, is applicable to all marriages howsoever celebrated.”

Talking about this concept vis-à-vis customary law marriages Wambuzi, J.A. noted in the same case as follows:

“Evidence was led which was not disputed that the appellant lived with the deceased for over 9 years and had 4 children by him. To his employers, the deceased had declared the appellant as his wife and some friends of the deceased knew him as married to the appellant. On this evidence which was accepted by the learned trial judge, the appellant had shown long cohabitation and repute so as to give rise to a presumption in her favour that she was married to the deceased. Mr. Oluoch, for the respondent, supported by Mr. Kithyoma, for the Public Trustee, submitted in effect that as the marriage claimed was under customary law, the presumption would not apply. I do not agree. In the first place, no authority was cited to us that the presumption does not apply to customary law marriages and secondly, the presumption has nothing to do with the law of marriage as such, whether this be ecclesiastical, statutory or customary; this must be proved. The presumption is nothing more than an assumption arising out of long cohabitation and general repute that the parties must be married irrespective of the nature of the marriage actually contracted. It may be shown that the parties are not married after all but then the burden is on the party who asserts that there was no marriage. It is at this stage that the nature of the marriage becomes relevant and the incidents thereof examined.”

The learned judge continued:

“I accept Mr. Oluoch’s contention that section 3(2) of Judicature Act (Cap. 8) provides for the application of customary law in certain circumstances. However, the same section in sub-section (1) thereof provides for the application of the common law to Kenya. I would not say in the circumstances of this case that there is any conflict between the common law and the Kikuyu customary law of marriage as the presumption relates only to proof. In my view once the appellant proved that she was living with the deceased as man and wife for over 9 years she was in law presumed to be married to the deceased unless the contrary be clearly proved. In other words, the burden is thrown on the respondent to show that she was not so married. (Emphasis added).

There is clear indication from this statement that presumption of marriage is a presumption of law rather than of fact. As noted earlier, the Court of Appeal in Joseis Wanjiru alias Joseis Wairimu vs. Kabui Ndegwa Kabui & Another was of the firm view that a presumption of marriage is not only a presumption of fact but also that it is a concept that has its roots in section 119 of the Evidence Act.

Perhaps it is worthwhile to digress a bit at this point to shed some light on what ‘presumptions’ generally entail in law if only that will help to clear the air on the particular category of presumptions under which the presumption of marriage falls.

According to Halsbury's Laws of England/CRIMINAL LAW, EVIDENCE AND PROCEDURE VOLUME 11(4) (2006 REISSUE) PARA 1374 there are three kinds of presumptions classified as follows:

(1) conclusive and irrebuttable presumptions of law (which are really rules of law, rather than of evidence);

(2) rebuttable presumptions of law, by which if a basic fact is proved or admitted, a further fact must then be presumed, either until the contrary is proved, or (in the case of 'evidential' presumptions) until some admissible evidence to the contrary is adduced; and,

(3) so-called presumptions of fact, which are merely permissible circumstantial inferences of fact, having no special significance in law.

Conclusive or irrebuttable presumptions of law are absolute inferences established by law; no evidence is admissible to contradict them and hence they are properly called rules of law rather than evidence.

A rebuttable presumption of law is one which leads to a decision on a particular issue in favour of the party who establishes it or relies upon it, unless it is rebutted. Rebuttable presumptions of law may be created by statute, or may exist at common law, and may cast either a persuasive or an evidential burden on the party seeking to rebut the presumption, except that it is a rule of the common law that (save in the case of a defence of insanity) the defendant cannot be required to discharge a persuasive burden of proof. See Halsbury’s Laws of England (supra) para 1375.

Presumptions of fact involve nothing more than the drawing of a reasonable inference from circumstantial evidence. (See R v Lumley (1869) LR 1 CCR 196).

Sections 4 of the Evidence Act refers to some of these presumptions; although it is under the head note ‘presumptions of fact’ it is also makes reference to presumptions of law; that section reads as follows:

4. Presumptions of fact:  

(1) Whenever it is provided by law that the court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it.

(2) Whenever it is directed by law that the court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved.

(3) When one fact is declared by law to be conclusive proof of another, the court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it. (Emphasis added).

According to Philip Durand’s manuscript, Evidence for Magistrates, published by Kenya Institute of Administration, at page 64 subsection (1) deals with rebuttable presumptions of fact as does section 119 of the Evidence Act. Subsection (2) deals rebuttable presumptions of law which, as earlier noted, are the inferences which the law requires to be drawn from a given fact and which are conclusive until disproved by evidence to the contrary. Subsection (3), on the other hand, is on irrebuttable presumptions of law.

Going by Wambuzi, J.A.’s judgment in the Hortensiah case (supra) the relevant excerpt of which I have reproduced above, a presumption of marriage would appear to fall under subsection (2); it is a rebuttable presumption of law and not necessarily of fact. And this would appear to be consistent with the English decisions on the nature of this sort of marriages; the decisions from that jurisdiction show that they are more of presumptions of law than presumptions of fact. It has also been noted that until it was abolished in 2006, the Scotch law adopted the same position; and, similarly those states in in the United States that embrace this concept.

Section 119 of would therefore appear to be more of a rule of evidence that is employed to establish the existence of this sort of marriage and not necessarily the substantive law from which the doctrine or concept of the presumption of marriage is derived. In other words, the essence of this section is that there has to be evidence that cumulatively forms the basis or the material from which an inference of marriage is made. The inference or presumption may only be drawn from a set of facts that have been proved to exist. Thus, as far as marriage by presumption is concerned, the court will, in considering the evidence before it, presume its existence after taking into account, inter alia, ‘the common course of natural events, human conduct and public’; the ‘events’ or ‘conduct’ will, of course, include such conduct as the prolonged period of cohabitation of a couple; how they have held themselves to the society at large and how such society perceives them; and, generally, the acts of their general repute.

It is also worth remembering that the application of this provision of the law is not restricted to marriages only; it is applicable to every case in which the court is called upon to presume “the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.” (Emphasis added).

Of all the local cases I have discussed in this judgment, only the Eva Naima Kaaka case (supra) was decided post the Marriage Act, 2014; the deceased in that case died in September 2014, three months after the commencement of the Act. Nevertheless, the issue whether the respondent’s alleged marriage to the deceased could considered from the perspective of the new Marriage law was not addressed perhaps because that issue was not addressed in the High Court and neither was the Court of Appeal invited to address it. However, having concluded that there was no evidence of a customary marriage and that there was no material upon which to presume a marriage by cohabitation, I doubt there is any provision in the Act that would probably have influenced the Court to reach any different conclusion.

One other thing worth of note in all these decisions, irrespective of whether they are foreign or local, is that a common thread that weaves through them is that the question of the validity of marriage is an issue that only emerged after the death of one of the spouses-in most, if not all, of the cases, it was the death of the man that sparked the dispute on the validity of the marriage of the surviving spouse; the underlying dispute was, and more often than not, is the succession to his estate. Whenever ones claim on the deceased’s estate is based on her marriage to the deceased yet the marriage is disputed, the question of marriage must, as a matter of necessity, be determined in succession proceedings. This explains why, and as these decisions show, the phenomenon of marriage by presumption comes to the fore more in death than in life..

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