On presumption of marriage & How property acquired during cohabitation should be equitably divided: The Case of MNK v POM; Petition No. 9 of 2021 [2023] KESC 2 (KLR)

📌 Citation: MNK v POM; Initiative for Strategic Litigation in Africa (Amicus Curiae) [2023] KESC 2 (KLR)
Court: Supreme Court of Kenya
Date: 27 January 2023
Coram: Mwilu DCJ, Ibrahim, Wanjala, Njoki Ndung’u, Lenaola, and Ouko SCJJ

 

1. Background and Facts

MNK and POM lived together for over 25 years in a relationship often described as a “marriage-like” union. During this time, they acquired property in Dagoretti/Riruta, Nairobi. MNK held the title deed solely in her name. However, MNK was formally married to another person (KM) until 2011.

Upon separation, MNK evicted POM from the shared property. POM filed a claim seeking a share of the property, asserting that it was acquired through joint effort during cohabitation.

The High Court dismissed the claim on the basis that there was no legal or presumed marriage. The Court of Appeal reversed this decision and held that there was a presumption of marriage, thereby entitling POM to 50% of the property.

MNK appealed to the Supreme Court.

 

2. Key Legal Issues

1.      Whether the presumption of marriage applied in the circumstances.

2.      Whether Section 17 of the Married Women’s Property Act, 1882 (MWPA) was applicable in the absence of a legally recognized marriage.

3.      How property acquired during cohabitation should be equitably divided where there is no marriage.

4.      What principles should guide courts in determining beneficial interest in such cohabitation-based property disputes.

 

3. Legal Framework and Precedents

• Married Women’s Property Act, 1882 (Section 17) – Historically used to resolve matrimonial property disputes where there is a valid marriage.
• Constructive Trust – An equitable doctrine used where a party has made contributions (financial or otherwise) giving rise to equitable interest in property, even if not reflected in title.
• Presumption of Marriage Doctrine – Developed in Kenyan case law (e.g., Hortensia Wanjiku Yawe v Public Trustee) to infer a marriage based on long-term cohabitation.

 

4. Court’s Analysis and Findings

a. Presumption of Marriage

• The Court rejected the application of the presumption of marriage, emphasizing that MNK was still legally married to another person (KM) for most of the cohabitation period.
• It held that capacity to marry is essential for a presumption of marriage to apply. Since MNK lacked this legal capacity, no marriage could be presumed.

b. Applicability of the MWPA

• The Court held that the MWPA applies only to parties in a valid or presumed marriage, not to cohabitees.
• Since the presumption of marriage was ruled out, POM could not claim under Section 17 of the MWPA.

c. Equitable Principles – Constructive Trust

• The Court invoked constructive trust to resolve the property dispute.
• It examined the direct and indirect contributions by POM, including:
• Financial contributions to household expenses
• Non-financial contributions (e.g., child-rearing, emotional and domestic support)
• The Court acknowledged that these contributions could generate a beneficial interest in the property, even without a marriage.

d. Property Division

• Unlike the 50:50 split ordered by the Court of Appeal, the Supreme Court found an unequal contribution.
• The property was therefore ordered to be divided in the ratio of 70% to MNK and 30% to POM.

 

5. Remedies and Final Orders

• The Supreme Court set aside the equal sharing order of the Court of Appeal.
• It ordered a proportional distribution based on actual contribution.
• Additionally, it called upon Parliament to legislate on the rights of cohabiting couples, given the growing prevalence of such unions and lack of legal clarity.

 

6. Significance and Impact

a. Clarification of Presumption of Marriage

• The judgment narrows the scope of presumption of marriage in Kenya.
• Merely living together, even for decades, does not establish a marriage where one party is legally married to someone else.

b. Constructive Trust as a Tool for Equity

• The Court promotes constructive trust as the appropriate mechanism to recognize property interests in non-marital relationships.
• This shift moves away from matrimonial property law to equity-based reasoning.

c. Legislative Gap Identified

• The Court highlighted the urgent need for statutory reform to provide legal protections for cohabitees, many of whom contribute significantly to property acquisition but lack formal recognition.

 

7. Conclusion

The MNK v POM decision marks a doctrinal shift in Kenyan family and property law. It affirms that while cohabitation alone does not confer spousal rights, courts can still provide equitable relief through doctrines like constructive trust. The ruling provides a roadmap for courts and litigants navigating similar disputes, while putting pressure on Parliament to address the rights of cohabiting couples.

Full Case downloaded here

On Right to fair hearing & Proof of service (email): The Case of BOD County Referral Hospital Kitale & Another v DN (Civil Appeal E043 of 2023)

Legal Brief and Analysis of the Case

Case Title: BOD County Referral Hospital Kitale & Another v DN (Suing through her next friend & Grandmother SK)
Court: High Court at Kitale
Case Number: Civil Appeal E043 of 2023
Judgment Date: 30 April 2025
Judge: Hon. Justice RE Ougo

 

I. Legal Brief

1. Facts

• DN, a minor, through her grandmother, sued the County Referral Hospital Kitale and the County Government of Trans Nzoia (Appellants), alleging medical negligence that led to the amputation of her left arm.
• The suit was heard ex parte after the Appellants failed to attend the hearing.
• A judgment was entered on May 29, 2023 in favor of the minor.
• The Appellants claimed they were not properly served with the hearing notice and moved the trial court to set aside the ex parte judgment.
• The trial court dismissed their application, prompting this appeal.

 

2. Issues for Determination

1.         Whether the trial court erred in holding that the Appellants were properly served with a hearing notice.

2.         Whether denying the application to set aside the ex parte judgment violated the Appellants' right to a fair hearing.

3.         Whether the requirements of Order 5 Rule 22B of the Civil Procedure Rules (CPR) were met regarding electronic service.

 

Detailed Analysis of the Issues for Determination in the case:

Issue 1: Whether the Appellants were properly served with a hearing notice

Legal Context

• Order 5 Rule 22B of the Civil Procedure Rules, 2010 permits service via electronic means but requires:
• That the service be sent to the designated email address.
• That the sender provides proof of delivery or access (e.g. delivery/read receipts).

Court's Analysis

• The Respondent claimed the Appellants were served via email on June 14, 2021.
• However, there was no delivery receipt, no read confirmation, and no affidavit affirming actual receipt by the Appellants.
• The court held that mere dispatch of an email is not sufficient; receipt must be proven.

Legal Significance

• The court reinforced that service is only complete upon confirmation of delivery, not just upon sending.
• This interpretation protects the due process rights of litigants and emphasizes procedural integrity.

Conclusion

• The Appellants were not properly served, making the proceedings on May 22, 2023, and the ex parte judgment entered thereafter, procedurally invalid.

 

Issue 2: Whether the trial court erred in denying the Appellants’ application to set aside the ex parte judgment

Legal Principles

• Courts have discretion to set aside ex parte judgments under Order 10 Rule 11 and Order 12 Rule 7 of the CPR.
• However, this discretion must be exercised judiciously, with a focus on enabling parties to be heard on merit, especially when:
• The default was not willful.
• The applicant has a defense with merit.
• There was procedural irregularity in service or hearing.

Court’s Reasoning

• The Appellants moved promptly after learning about the ex parte judgment.
• They demonstrated that their absence was not deliberate, but due to lack of notice.
• Denying them a hearing violated Article 50(1) of the Constitution (right to fair hearing).

Conclusion

• The trial court misdirected itself by dismissing the application to set aside, ignoring the fundamental right to be heard and the flawed service process.

 

Issue 3: Whether the requirements of Order 5 Rule 22B (on service via email) were complied with

Statutory Framework

• Order 5 Rule 22B allows for service via email only where:
• There is agreement or direction for electronic service.
• Proper email address is used.
• Proof of service includes evidence of transmission and delivery.

Findings

• The Respondent failed to provide proof of delivery of the hearing notice.
• A screenshot of the sent email without a delivery or read receipt was insufficient.
• The court noted that this breached the rule’s requirements and compromised fairness.

Broader Implications

• This reinforces that even with modern tools (e.g., email), procedural safeguards remain vital.
• The case sets a precedent that e-service must be verifiable and reliable.

 

Overall Legal Analysis

Issue	Court’s Determination	Implication
Proper service	Not established	Judgment invalid; right to hearing denied
Refusal to set aside ex parte judgment	Erroneous	Violated Article 50(1) and procedural justice
Compliance with Order 5 Rule 22B	Not met	Service defective; judgment set aside

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✅ Final Legal Position:

• The appellate court found that each issue was wrongly handled by the trial court.
• The Appellants were denied due process due to flawed service and a rigid application of procedural law.
• The judgment was set aside, and the case was remitted for a fresh hearing on merit.

3. Applicable Law

• Order 5 Rule 22B, Civil Procedure Rules (2010): Governs service by electronic means. Requires proof of delivery, not just proof of sending.
• Article 50(1), Constitution of Kenya (2010): Guarantees the right to a fair hearing.
• Article 159(2)(d): Emphasizes substantive justice over procedural technicalities.

 

4. Court’s Holding

• The email said to contain the hearing notice lacked a delivery or read receipt.
• The court found no evidence that the hearing notice was actually received.
• Failure to give proper notice violated the right to be heard under Article 50(1).
• The ex parte judgment and the ruling refusing to set it aside were set aside.
• Matter remitted back for hearing on merit.

 

5. Disposition

• Appeal allowed.
• Ex parte judgment dated 29 May 2023 and trial court ruling of 17 July 2023 set aside.
• Each party to bear their own costs.

 

II. Legal Analysis

A. Service by Email under Kenyan Law

• The CPR allows for electronic service, but it must be effective—that is, the recipient must actually receive the notice.
• This case sets a clear precedent that merely “sending” an email does not equate to proper service unless delivery or read receipts are provided.
• The failure to comply with this requirement fatally undermined the integrity of the process.

 

B. Right to Fair Hearing (Article 50)

• Procedural fairness is a cornerstone of justice.
• The court emphasized that denying a party the opportunity to be heard, even if due to an oversight in procedural compliance, results in substantial injustice.
• The trial court, in denying the application to set aside the judgment, effectively penalized the Appellants despite an apparent procedural failure by the Respondent.

 

C. Balancing Justice and Procedure

• The appellate court rightly invoked Article 159(2)(d) to prioritize substantive justice.
• There was no willful disregard or delay by the Appellants—just a breakdown in communication/service.
• Allowing the judgment to stand would have been disproportionate and unjust, especially given the serious nature of the claim (medical negligence).

 

III. Conclusion

This decision reinforces procedural fairness in civil litigation. It illustrates that:

• Proper service is not a mere formality—it is a constitutional imperative.
• Courts must be vigilant in protecting litigants’ rights to participate in proceedings, especially in sensitive matters like those involving minors and allegations of medical negligence.
• Email service must include verifiable proof of receipt to meet legal standards.

 

✅ Key Takeaways

 

Legal Principle	Application in Case
Right to fair hearing	Violated due to lack of proper service
Proof of service (email)	Must include delivery or read receipt
Discretion to set aside	Must be exercised to prevent injustice