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The Kenya Forum | High Court “Come-We-Stay” Ruling Again? - The Kenya Forum

January 3, 2023

Summary

Surely we have been here before and both the law and the precedent have been set?

More by Correspondent

High Court “Come-We-Stay” Ruling Again?

High Court “Come-We-Stay” Ruling Again?

Photo courtesy Capital News

Long-term Kenya Forum readers might well be feeling a sense of Deja vu if they read a report in The Standard (December 29th) entitled ‘Court: Seven Years living together in marriage’ as we wrote about the subject of ‘Come-we-stay’ marriages way back in November 2012 and July 2018 and thought that the matter had been largely settled.

The Seven Year Itch?

The subject of The Standard’s report was a decision by Justice Maureen Odero that a couple living together for seven years amounted to marriage.

The case arose after a man asked the court to find that he and his partner were not married as he had not paid a dowry, nor had the couple had children with his now estranged ‘wife’.

Judge Odero said, “The period of cohabitation being seven years, in my view, leads to a presumption of marriage”.

But surely we have been here before and both the law and the precedent have been set?

The Marriage Bill 2012

On 16th November, 2012, the Kenya Forum reported (The Marriage Bill 2012 “Come we Stay”) that the Cabinet had approved a law, The Marriage Bill, which recognised come-we-stay arrangements of over six months as legal marriages.

At the time the social media was packed with sarcastic jokes that a lot of couples would be splitting up after five months and twenty-nine days!

The 2012 Bill, according to a presidential press statement, sought to bring together the Christian, Islamic and Hindu marriage laws and marriages agreed under Civil and African Customary law.

Judge David Majanja’s Seven Year Ruling

Jump forward to 16th July, 2018, and the Kenya Forum reported under the headline “Come-we-Stay” Proof of Marriage High Court Rules that High court Judge David Majanja, in a matrimony case brought before him, had ruled that a couple who have been cohabiting as man and wife for a period of time, do not necessarily have to undergo customary traditions to formalise the union for it be considered legal.

In the case brought before him Judge Majanja heard that there was a tussle between a man who had cohabited with a woman for seven years and the woman’s parents on who had the rights to bury her following her demise, with the former arguing that she was his wife and the latter maintaining that their daughter was single since no customary marriage had been in place.

Judge Majanja however ruled that based on a written agreement written between the man and the deceased, declaring that they were living as man and wife and also going by the period the two lived together, seven years, the absence of a customary marriage did not invalidate the union.

So here we are back in the High Court a decade after the Marriage Bill and over four years since Judge Majanja’s ruling with a similar ruling by Judge Odero on the same subject.

Should this latest case involving a “Come-we-Stay” ruling not have been settled out of court given the precedent and the contents of the Marriage Act?

On a lighter note the Nation’s reporter Kamau Muthoni reported: ‘In the case, the man said he signed separation papers while sick because he wanted to be left in piece. Following the testimony, the judge observed that this was an admission of marriage’.

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