Mutua and Lilian: Lessons to learn about long-term relationships in Kenyan Law

Mutua and Lilian: Lessons to learn about long-term relationships in Kenyan Law

Former First Lady of Machakos County Lilian Ng’ang’a shook many heads on Thursday during a presser when she said that she was illegally married to the County’s Governor Alfred Mutua.

According to Ng’ang’a, they were both illegally married for nine years before they decided to conclude their union in mid-August this year.

“No, we were not legally married…just long-term partners,” said Ms. Ng’ang’a in a presser.

She had gone public to address Mutua over threat allegation which the Governor allegedly level against her.

Flanked by her lawyer Senior Counsel Philip Murgor, Lilian claimed that she has been receiving threats from the county boss.

“Along with the same fraudulent conduct, Mr. Mutua recently and illegally transferred my shares in A&L Hotel (which they jointly owned) to his sister Ann Mbandi. Again, a dear act of fraud.”

She said she had a 45 percent shareholding at the establishment (A&L), which they launched IN 2020.

In addition, Lilian mentioned that the former government spokesperson is demanding all the money he invested in her.

Was it marriage or not? And what does the Marriage Act in Kenya state about a man and a woman staying together for long while cohabiting?

Over time, some people do hold the belief that once a couple has lived together for an extended period of time, there is an automatic marriage under common law.

There has been an erroneous belief that a couple does not need to get into the rigours and formalities of marriage, when they can simply stay together for a long period of time and they will be ‘deemed’ to be married under the law.

In the spectrum of marriage, there exists a legal position with regards to established doctrine of Presumption Marriage according to the Marriage Act 2014.

Begi’s Law Offices and Chambers cites an incident back in years of Hortensiah Wanjiku Yaweh versus Public Trustee (Civil Appeal 13 of 1976) where the court established the need for long cohabitation before anybody moving to the court, can establish a presumption of marriage.

“The presumption does not depend on the law or a system of marriage. The presumption is just an assumption based on a very long cohabitation and repute that the parties are husband and wife.” the court stated.

Later on in 2014, in the case of Joseph Gitau Githongo versus Victoria Mwihaki  (2014) eKLR, the court stated as follows:

“It (presumption of marriage) is a concept born from an appreciation of the needs of the realities of life when a man and woman cohabit for a long period without solemnizing that union by going through a recognized form of marriage, then a presumption of marriage arises.”

Lilian, however, is demanding that the Governor returns property which belongs to her. with regards to their separation. The Marriage Act according to Begi’s states as follows;

“ If the woman is left stranded either by cast away by the “husband”, or otherwise he dies, occurrence which do happen, the law subject to the requisite proof, bestows the status of “wife” upon the woman to enable her to qualify for maintenance or a share in the estate of her deceased “husband”

Article 45(3) of the Kenyan Constitution states that ‘Parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage, and at the dissolution of the marriage’.

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Lawrence Baraza is a prolific writer with competencies in Digital Media, Print, and Broadcast. Baraza is also a Communication Practitioner currently spearheading Digital content on Metropol TV's Digital Desk.

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