This is an anomaly given that we are decades into independence and yet we still apply English Laws and English Statutes particular in areas of family law.  This is in 3 ways
a.                   Continued application of common law in form of common law presumptions which still apply to Kenya, e.g. Common Law Rights of a wife to pledge the husband’s credit.  This has been applied in Kenya in a number of cases  Pa          tterson v. Nanyuki General Stores, Ramji Dass Co. v. McDonald

The presumption is that when a wife acquires goods on credit, she is deemed to be acting as the husband’s agent and the husband will be liable to pay.

In Ramji Dass it was stated that this presumption existed even when the wife and husband were not living together.

b.         Presumption of Advancement:  This normally arises in a family relationship when a family member transfers property to another by way of a gift.  The issue arises as to whether the beneficial interest in that property has been transferred to the other person which is what is known as the advancement when the property has been wholly transferred to the other person or whether that other person holds the property in trust for the person who has given it.  Is there an advancement resulting in a trust?  In common law the presumption does exist if it can be shown that the intention was to transfer the beneficial interest then there is advancement.

There is authority to the effect that the presumption applies in Kenya, in  Shallo v. Maryam, Bishen Singh v. Mohinder Singh, Sarah Wanjiku Mutiso V. Gideon Mutiso

In the case of Wanjiku v. Mutiso [1988] Wanjiku and Mutiso were husband and wife.  In 1967, during the course of their marriage, Mutiso acquired a farm through two loans, both of which were secured by charges on the farm.  Mutiso was a Member of Parliament but was jailed for 9 and a half years in 1971 for sedition.  Mutiso fell into arrears in mortgage payments.  Mutiso made out a power of attorney in favour of the wife but he was subsequently obliged to transfer the farm into her sole name.  He executed a deed of gift to that effect. Subsequently the parties grew apart and when Mutiso was released they were unable to resume their married life together.  Mutiso therefore filed suit claiming that his wife held the property as his trustee and she should transfer the same back.  The issues that arose for consideration were (1) whether the deed of gift was void; (2) whether there was an express trust in favour of the husband; (3) whether, in the absence of an express trust, a resulting trust could be applied.

The court ruled in favour of Mutiso and the wife appealed.
It was held

1.                  While the husband did not clearly plead resulting trust, the facts of the case and the plea of ‘trust’ effectively referred to a resulting trust.
2.                  There was no express trust in this case because the transfer was specific and expressly by way of gift.
3.                  Where property is transferred to another as a gift with the intention that the latter hold it as trustee for the former, a resulting trust may be implied.
4.                  The presumption of advancement should only be made so as to accord with the social conditions in Kenya and to conform to the most likely intentions of the spouses.  In this case, the strength of the presumption would be much diminished.  There was sufficient rebuttal evidence that it was not the husband’s intention to make an absolute gift to the wife.  A constructive trust would therefore be imposed to prevent the wife from taking fraudulent advantage of her husband.

The Appeal was dismissed.

c.         Presumption of Marriage:       This arises where a man and woman cohabit and call themselves out as man and wife.  Under this presumption they will be deemed to be married even if they have not undergone any formal marriage ceremony. Family law is also trying to incorporate certain situations which do not fall within the family threshold and this is one of them.  Where parties have not met legal requisites to be called man and wife.  This presumption has been applied to the Kenyan situation with regard to this assumption the Kenyan courts have stated that this presumption existed under African Customary Law. 
Wanjiku Yawe v. Public Trustee,
Peter Hinga v. Mary Wanjiku and
R. V Peter s/o Mikhayo
Charles Manjani v. Rosemary Moraa

In Wanjiku Yawe the court found that this presumption can also be found under African Customary Law in R v. Peter s/o Mikhayo the interesting issue was that of the period of cohabitation, for how long should you cohabit for this presumption to come into place?  Is it one year or 10 months?

In Peter s/o Mikhayo, the accused cohabited with a lady for a period of between 4 and 8 months, then one day he found his lady performing a sexual act in the bush with a man and proceeded to kill the man.  In his defence on charge of murder, he said that the lady was his wife and he had been provoked to kill the man.  The court had to consider whether that period of cohabitation was long enough to trigger a presumption of marriage.  Again this is one of the case relied on customary law and it held that under Customary law, that period was enough and in fact stated that under customary law, the moment you start cohabiting the presumption is triggered.

In Charles Manjani v Rosemary Moraa the presumption was said to apply even where the wife had previously been married to another man, it was held that the presumption would apply and the first marriage was dissolved during cohabitation but by the time cohabitation started it had not been legally resolved.


An English Act that still applies in Kenya and is the principle law that applies when apportioning matrimonial property.  In I v. I and in Antony Karanja v. Karanja

In I v I [1970]   this is the first reported decision of the Kenyan High Court where the Married Women’s Property Act (MWPA) of England was held to apply in Kenya.  The court also considered various English authorities and made a finding on the presumption of advancement.

The husband in this case had acquired a property in England from his earnings and had it registered in the joint names of the spouses.  The house was subsequently sold and most of the proceeds used to purchase a house in Kenya which was transferred into the husband’s name.  The wife had expected that the subsequent property would go into their joint names.

The question before the court was whether the Married Women’s Property Act of 1882 of England (MWPA) would apply in Kenya.  Further, whether the presumption of advancement to the wife as a result of the initial transfer to herself of a half-share had been rebutted.

1.                  The MWPA was a statute of general application in England on 12 August 1897.  It would therefore apply in Kenya so far as the circumstances of Kenya and its inhabitants permit.  The MWPA would apply in priority to customary law.  Judicature Act (Cap 8) section 3 considered.
2.                  The presumption of advancement may be rebutted where property was acquired for the joint use of the spouses.  The presumption that the property was conveyed to the wife for her own use is however not rebutted if the transfer was effected to defeat creditors.
3.                  In this case, there was a post-nuptial settlement between the parties in relation to the property of the marriage.  The word ‘settlement’ should be given a wide construction.  Hence, the court has power under section 28 of the Matrimonial Causes Act (K), which is applicable in this case.
4.                  The husband in this case had not shown any reason for variation of the prenuptial settlement between the spouses.

In Karanja v. Karanja during the course of their marriage, the parties acquired several properties which were all registered in the name of the husband.  One property was acquired from money supplied by the wife while the other properties were acquired with her direct or indirect contribution.  The court considered whether customary law would operate to disqualify any imputation of trust in favour of a married woman, especially one in salaried employment.
1.                  The Married Women’s Property Act is applicable to Kenya, and customary law is subject to any written law.
2.                  Even without power to transfer property, the court has power under the MWPA to grant declarations of ownership of property.  In cases where the property was acquired as a joint venture, it will be regarded as belonging to the spouses jointly no matter in whose name the property stands.
3.                  The absence of an agreement or intention that the contributing spouse share beneficially in the property does not exclude the imputation of such an intention.  This will depend on the law of trust, which will not distinguish between direct and indirect contribution.
4.                  Where an African husband and wife are in salaried employment, the imputation of a trust cannot be rejected outright.  This implication would arise where the wife is contributing indirectly through payments for household and other expenses which the husband would otherwise have had to pay.
5.                  In this case, the husband held the immovable properties in dispute in trust for himself and his wife in proportions of two to one respectively.  However, it would not be equitable to order sale or possession of the Karen property since the husband was residing there with his new family.

The final decision of the court to award one-third beneficial interest in the properties to the wife is commendable.
The Act provides that a married woman is capable of acquiring, owning and disposing of property as her own separate property and the history to this Act is that under English Law women could not hold separate property.  This act liberated married women who can now own and dispose off their own property.

Registration by Reference

1.                  Under the Matrimonial Causes Act Section 3 it provides that the law that is to be applied in Matrimonial proceedings is that which applies in the High Court of Justice of England.  This provision exists in our law so when we draft our pleadings in matrimonial and divorce cases we have to go back to the proceedings in England to see how they do it.

2.                  Section 35 of the Marriage Act which provides that no marriage will be valid if the parties are within prohibited degrees of affinity according to the law of England.  Again we go back to English law to find out what are the degrees of affinity and then find out who cannot marry who in terms of relations.

A major problem is what happens when a law undergoes subsequent changes, do we adopt the changes wholesale?  The perfect example is in divorce law, the divorce law underwent major reform in 1970 e.g. when it comes to divorce you find that to obtain a divorce you have to prove that the other party has been guilty of a fault.  In 1970 in England all these grounds were removed and there is only one ground that of irreconcilable differences.  In Kenya you still have to quote one or more of the grounds that are listed in the matrimonial causes Act.

K v K HCCC No. 123 of 1975 where it was held that any amendments which are contrary to our own laws would not be applicable in our own situation.


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