JNK v JKN (Civil Appeal E107 of 2025) [2026] KEHC 12721 (KLR) (Family) (5 August 2026) (Judgment)

JNK v JKN (Civil Appeal E107 of 2025) [2026] KEHC 12721 (KLR) (Family) (5 August 2026) (Judgment) Neutral citation: [2026] KEHC 12721 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Family Civil Appeal E107 of 2025 CJ Kendagor, J August 5, 2026 Between JNK Appellant and JKN Respondent (Being an Appeal from the judgment and decree of the Honourable Magistrate G.M. Gitonga delivered on 23rd May, 2025 in Divorce Cause No. E554 of 2024) Judgment 1.The Respondent, JHN, filed a Divorce Cause No. E554 of 2024 before the Chief Magistrate’s Court, Milimani, against JNK (Appellant) in which he sought the following orders;i.A declaration that the cohabitation between the plaintiff and the defendant leads to a presumption of marriage between the plaintiff and the defendant;ii.Dissolution of the marriage between the plaintiff and the defendant;iii.Costs of the suit. 2.The suit was defended by the Appellant. 3.The Court delivered a judgment on 22nd July, 2025, where it made a declaration on presumption of marriage between the parties and proceeded to dissolve the marriage on the ground of cruelty. 4.The Appellant was dissatisfied with the judgment and appealed to this Court by filing a Memorandum of Appeal dated 23rd July, 2025. She listed the following grounds of Appeal: -a.The learned trial magistrate erred in law and in fact by allowing the respondent’s petition for divorce;b.The learned trial magistrate erred in law and in fact in finding that there was a presumption of marriage between the parties;c.The learned trial magistrate erred in law and fact by finding that there existed prolonged cohabitation between the appellant and the respondent thus constituting a presumed marriage, despite insufficient credible, consistent and corroborative evidence to establish cohabitation of the nature and degree required to support such a presumption;d.The learned trial magistrate erred in law and fact by failing to adequately evaluate the material inconsistencies in the respondent’s evidence, particularly the contradictions in the documentary evidence and the oral testimony presented, which undermined the credibility of the claim for a presumed marriage;e.The learned trial magistrate erred in law and fact by failing to apply the proper evidentiary threshold to the respondent’s allegations of cruelty, which were not supported by cogent or credible evidence;f.The learned trial magistrate erred in law and fact by relying on the alleged payment of dowry in support of a presumed marriage, without sufficiently examining whether, in the circumstances, this customary practice demonstrated a mutual intention to enter into such a union as required by law;g.The learned trial magistrate erred in law and fact by finding that a presumption of marriage existed between the parties, despite the absence of consistent, credible and corroborative evidence to support such a conclusion;h.The learned trial magistrate erred in law on the interpretation and application of the provisions of Rule 5 of the Marriage (Matrimonial Proceedings) rules;i.The learned trial magistrate erred in law and fact by relying on extraneous factors to arrive at a wrong finding;j.The learned trial magistrate erred in law and fact resulting in a wrong finding notwithstanding the fact that the respondent herein had failed to discharge the burden of proof placed on him by law to warrant the issuance of the orders sought;k.The learned trial magistrate erred in law and fact by shifting the evidential burden of proof upon the appellant in the case;l.The learned trial magistrate erred in law and fact in failing to consider the evidence presented to him by the parties. 5.She asked the Court to set aside the Judgment of the trial Court and to find that no presumption of marriage arose between the parties. 6.The appeal was canvassed by way of written submissions. The Appellant’s Written Submissions 7.The Appellant submitted that the trial Court was wrong in holding that a presumption of marriage existed and in finding that the Respondent had proved cruelty as a ground for dissolution of a marriage. 8.She submitted that the cohabitation between herself and the Respondent was not intended to lead to a marriage but was an interdependent relationship that she terms a partnership. 9.According to the Appellant, the Respondent’s claim of performance of customary marriage rites was not proven, yet the trial Court proceeded to infer the existence of a presumed marriage arising from cohabitation, notwithstanding that such a presumption had not been properly pleaded or established. 10.She submitted further that the Respondent had formulated his case to include cohabitation from the year 2003, which period between 2003 and 2011, the Respondent’s marriage had not been dissolved, and therefore he had no capacity to marry. The Respondent’s Written Submissions 11.The Respondent submitted that the trial Court had considered the cohabitation alongside other parameters in finding that there existed a presumption of marriage. 12.He submitted that the cohabitation was continuous and uninterrupted between 2003 and 2023, and urged the Court to uphold the trial Court’s findings that the presumption of marriage applied for the period post his divorce in 2011 to 2023 when he moved out. 13.He submitted that the evidence he presented regarding the performance of cultural rites was meant to show the parties’ intention and consent, and not to ask the Court to recognize the existence of a marriage based on customary rites. Analysis and determination 14.I have looked at the respective submissions, and I find that these are the issues for determination;a.Whether the Respondent’s claim in his pleadings was based on the existence of a customary marriage or on the presumption of marriage;b.Whether a presumption of marriage could reasonably be drawn from the facts presented;c.If there is a presumption, whether there is evidence to support the findings of cruelty and the dissolution of the marriage;d.Who should bear costs. The Duty of the Court 15.Being a first appeal, the duty of this Court is to review the evidence adduced before the lower Court and satisfy itself that the decision was well-founded. This principle was set out in Selle and another v Associated Motor Boat Company Ltd and others [1968] 1 EA 123 where the Court held:“…this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular this Court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence ...” Whether the Respondent’s claim in his pleadings was based on the existence of a customary marriage or on the presumption of marriage; 16.A party is bound by his/her pleadings. See IEBC & Another vs Mule & 3 others [2014] KECA 890 (KLR). 17.In this case, the Appellant argues that the Respondent framed the legal basis for his claim on the existence of a customary marriage and not on the presumption of marriage, which the Court ultimately decided upon. 18.I have reviewed the plaint dated 25th April, 2024, the evidence tendered by the Respondent and his witnesses, and the determination. In the plaint, the Respondent pleaded cohabitation between 2003 and 2023 and the birth of two children from the relationship. 19.He further, in paragraph 5, pleaded that he had introduced the Appellant to his parents and relatives, that the Appellant had also introduced him to her parents and relatives, and that he had paid dowry on 17th December, 2011 at the Appellant’s parents’ home under Kikuyu Customary law, though no wedding ceremony had been conducted. 20.Paragraph 5 cannot be read in isolation just because it references the dowry payment. In paragraph 6, he states that the parties had acquired the reputation of husband and wife. The prayer in the plaint is for a declaration that there exists a presumption of marriage. 21.The trial Court, in paragraph 48, found that although evidence was led on the performance of the Kikuyu customary rites, the Court was not invited to make a finding on whether a customary marriage existed between the parties. 22.I make a finding that the trial Court’s determination was grounded in the issues presented within the pleadings. The key finding to be established was whether a presumption of marriage could reasonably be drawn from the facts presented. Whether a presumption of marriage could reasonably be drawn from the facts presented; 23.I have re-examined the evidence placed before the trial Court and the applicable law to ascertain whether the trial court reached the correct conclusion. 24.Under Section 2 of the Marriage Act, “cohabit” means to live in an arrangement in which an unmarried couple lives together in a long-term relationship that resembles a marriage. I will follow this definition. 25.The Court of Appeal in Phylis Njoki Karanja & 2 others v Rosemary Mueni Karanja & another [2009] eKLR held that the presumption of marriage could be drawn from long cohabitation and acts of general repute. It held as follows:“Before a 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 has crystallized into a marriage and it is safe to presume the existence of a marriage. 26.In the case of MNK v POM; Initiative for Strategic Litigation in Africa (ISLA) (Amicus Curiae) (Petition 9 of 2021) [2023] KESC 2 (KLR), the Supreme Court held as follows;“64.We find it prudent at this juncture to lay out the strict parameters within which a presumption of marriage can be made:1.The parties must have lived together for a long period of time.2.The parties must have the legal right or capacity to marry.3.The parties must have intended to marry.4.There must be consent by both parties.5.The parties must have held themselves out to the outside world as being a married couple.6.The onus of proving the presumption is on the party who alleges it.7.The evidence to rebut the presumption has to be strong, distinct, satisfactory and conclusive.8.The standard of proof is on a balance of probabilities.” 27.The Respondent alleges that there was long cohabitation for the purposes of a presumption of marriage. Based on the above principles, he had the onus of proving the presumption. 28.The period for cohabitation that can be considered for the analysis is a hotly contested issue, as is the intention of the parties in their cohabitation. 29.The evidence on record is that the parties entered into a relationship in 2003 and they started living together. From the evidence, their relationship subsisted from 2003 to 2023 when they parted ways. During this period, they had two children born in 2006 and 2011. 30.There is also evidence that between the period of 2003 and 2010, when they lived together, the Respondent was legally married to someone else whom he had separated from and the marriage was subsequently dissolved in March, 2010. Therefore, between 2003 and 2010, the Respondent did not have the capacity to marry. 31.There is evidence that they continued to live together from 2011 to 2023, a period of 12 years. This period is what the trial Court took into consideration. He stated as follows;“64.Looking at the totality of the evidence on record I feel that the plaintiff did enough to prove on a balance of probabilities that his association with the defendant between 2011 to 2023 was not merely as friends …” 32.After careful consideration, I concur with the computation that the relevant period begins in 2011, the year in which the Respondent’s marriage had been officially dissolved. 33.I also affirm the conclusion that 12 years constitutes a period of long cohabitation. The long cohabitation was corroborated by the witnesses who testified in both the Appellant’s and the Respondent’s cases. 34.The Appellant asserts that the negative experiences the Respondent endured influenced their intention not to enter into a marriage. Therefore, I will review the conduct of the parties during their time of cohabitation to assess the nature of the relationship that followed. 35.The issue of payment of dowry is contested. This issue is important for examining the intentions of the parties. The Appellant and her witnesses denied that dowry was paid. The Respondent stated that the dowry was paid in 2011 because they had commenced plans to formalize their relationship after the dissolution of his first marriage in 2010. 36.The Respondent led evidence on this, and the witnesses were heavily cross-examined on the same. PW2 stated that he accompanied the Respondent to the Appellants’ home in Naivasha to take dowry. He gave a detailed account of the negotiations and the payment of dowry. The trial Court made an observation in the judgment regarding the credibility of this witness. He had the opportunity to directly assess the credibility and reliability of the witnesses, a critical advantage that this Court lacks at the appellate stage. 37.Besides the issue of dowry, there is also evidence of the Appellant’s inclusion in the medical cover as a spouse. Whereas the Appellant contends that she did not consent to her inclusion in the cover, the letters from the Respondent’s employer corroborate that she utilized the medical cover during the period of cohabitation in her capacity as the Respondent’s spouse. 38.I have also reviewed the evidence tendered on whether the parties presented themselves to the public as husband and wife. Four witnesses testified in support of the Respondent’s case, all indicating that the parties consistently presented themselves as husband and wife. 39.Their accounts included detailed descriptions of various social functions they attended together, both in Nairobi and at the Respondent’s rural home. This included an event hosted by the parties at their residence for the Respondent’s daughter. 40.I have reviewed their testimonies, and they strike me as detailed interactions with a high level of familiarity with the parties. I am persuaded that their testimonies constitute independent evidence that the parties had held themselves out to the outside world as a married couple. 41.The Respondent led sufficient evidence of long cohabitation and showed that they had held themselves out to the outside world as a married couple. 42.For the above reasons, I find that the presumption of marriage applies to the parties in these circumstances and conclude that they were married. Whether there is evidence to support the findings of cruelty and the dissolution of the marriage; 43.The trial Court dismissed the ground of adultery and dissolved the marriage on the ground of cruelty. It also held that there was constructive desertion by the respondent. 44.In the Judgment, the trial Court stated that he was persuaded that the parties were cruel to each other, leading to the filing of the protection order. I have reviewed the evidence on record, but aside from stating that he moved out of the house for fear of his life, the Respondent did not adduce cogent evidence to support the allegation that the Appellant had been cruel to him. There is, however, evidence of protection orders being issued in favour of the Appellant against the Respondent, and of escalation of domestic violence complaints to the police against the Respondent. 45.In this case, the Appellant provided compelling evidence of cruelty directed towards her by the Respondent. The appeal is partially successful, specifically regarding the finding that the ground of cruelty was proven against only one party, the Respondent. 46.I am persuaded by the decision relied on by the trial court, RNO vs BKJ [2021] eKLR, where the Court stated that it is sufficient for one spouse, or both, to prove to the court that the cruelty alleged is of such a nature that it is impossible for them to live together. 47.Given the severity of the conflict between the parties, it is evident that restoring a harmonious marriage is unlikely. I affirm the dissolution of the marriage. 48.Dispositions;a.The appeal is partially successful, specifically in relation to the finding that the ground of cruelty was proven against only one party, the respondent;b.I uphold the declaration of the presumption of marriage between the parties;c.I affirm the dissolution of the said marriage;d.Each party shall bear their own costs of the appeal. 47.It is so ordered. DATED AND SIGNED AT NAIROBI ON THIS 5TH DAY OF AUGUST, 2026.………………………C. KENDAGORJUDGEIn the presence of:Court Assistant: Beryl