NAIROBI, Kenya — The Court of Appeal has ruled that a man who lived with a woman for nearly three decades cannot claim rights to land registered in her name, reaffirming that cohabitation — even where children are involved — does not amount to a legally recognised marriage under Kenyan law.
In a judgment delivered on November 7, a three-judge bench comprising Justices Francis Tuiyott, Lydia Achode, and Aggrey Muchelule upheld a decision of the Environment and Land Court (ELC) in Malindi, which had dismissed the man’s claim to the property.
The man had moved to court after the woman sold what he termed “their matrimonial land” without his consent. He argued that he had financed the purchase in 2000, contributing Sh197,000 of the Sh200,000 purchase price, and only registered the property in her name to shield it from his other family in Kakamega County.
Court filings show the couple began their relationship in 1980 and started living together in 1982. They had five children, although only one survived.
Despite this long relationship, the ELC found that the pair were never legally married because they had not performed any customary rites, paid dowry, held a church wedding, or registered their union.
Dissatisfied, the man turned to the appellate court, insisting that their long cohabitation created a presumption of marriage and that he therefore deserved a share of the land.
But the Court of Appeal disagreed.
The judges held that while cohabitation can give rise to an assumption of marriage, it is not, in itself, proof of a legally valid marriage and cannot confer matrimonial property rights.
“Matrimonial property rights flow from marriage,” the court said, noting that the man had himself admitted that no dowry was paid and no marriage formalised. Without proof of marriage, the land could not be classified as a matrimonial home requiring spousal consent before sale.
On the question of contribution, the court found that the man had failed to prove he funded the purchase or developed the property. Although he claimed to have built rental units and collected rent, he produced no evidence to support this claim.
“In those circumstances, it was imperative for the man to show that he was the source of the money that paid the consideration. This he did not do,” the judges said, emphasising that documentary evidence clearly showed the woman was the purchaser and legal owner.
They added that the man’s presence on the land did not establish ownership or beneficial interest.
“Possession would not be inconsistent with the defence… that by virtue of the relationship as boyfriend and girlfriend, the two would have gained access to the suit property,” the court observed.
With multiple gaps in the man’s evidence and no legal basis for his claim, the appellate judges dismissed the case in its entirety.
The ruling reinforces the judiciary’s growing stance that cohabitation, regardless of length, does not automatically create marriage or property rights — a significant reminder for couples in long-term unions to formalise their relationships or maintain clear records of contribution to shared assets.
