WUNRN
Case will be used in update of:
Legal Grounds: Reproductive &
Sexual Rights in Africa Commonwealth
Courts:
Updates - http://www.law.utoronto.ca/visitors_content.asp?itemPath=5/12/12/0/0&contentId=1618 -
See Case 43.
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KENYA COURT CASE - CHILD SUPPORT
RESPONSIBILITY IN
RELATIONSHIP OF EXTENDED
COHABITATION
Summary
of the High Court's Discussion
The marriage laws, which had been enacted during the colonial period,
did not recognize mere cohabitation as a valid marriage.
Precedent
case law has established that the courts
normally presume the existence of a marriage if the partners have
cohabited for a considerable period of time.
Conclusion
There existed a marital relationship between the Appellant and the
Respondent and the Appellant had a duty to support his children.
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JGM
v CNW, Civil Appeal No. 40 of 2004
(Kenya, High Court at Nakuru)
Summary of Facts
The Appellant, JGM, and the Respondent, CNW, began a conjugal
relationship in October 2000. In January 2001, they signed a sworn
statement declaring that they had married in 1996 under customary
law. Some time thereafter, when the Respondent gave birth to twins
in February 2003, the Appellant chased her out of his house and she
moved to another house owned by the Appellant. When the Appellant
failed to provide the Respondent with maintenance and child support,
the Respondent filed a suit in a Magistrate Court. The Appellant
denied the existence of a marriage and consequently denied his
obligation for child support. He argued that since the children were
born out of wedlock, he did not have any parental obligation to
support them. Under Section 24(1) of the Children Act, if a child is
born out of wedlock, the mother is the primary person responsible for
taking care of the child, until a court determines, in accordance
with Section 25(1) of the Act, the father's parental responsibility.
The Magistrate held that the combination of the documents, including
the sworn affidavit of marriage, and the birth certificates of the
children, submitted by the Respondent, plus the fact that the
Appellant and the Respondent had lived together as husband and wife
for years and had had children, amounted to marriage. The Magistrate
also held that the Appellant had a duty to support his children. The
Appellant then appealed the decision of the Magistrate.
Issues
Whether a marital relationship existed between the Appellant and the
Respondent, and whether the Appellant had parental responsibility
towards his children.
Summary of the High Court's Discussion
The marriage laws, which had been enacted during the colonial period,
did not recognize mere cohabitation as a valid marriage. In reality,
however, many Kenyans cohabit and have children. In times of
conflict or when a partner dies, it is usually the women who shoulder
the burden of raising the children and so need to turn to the courts
for justice. Precedent case law has established that the courts
normally presume the existence of a marriage if the partners have
cohabited for a considerable period of time. For example, in Machani
v. Vernoor [1985] KLR 859, the Court of Appeal held that courts "can
presume existence of a marriage where there has been a ceremony of
any form followed by cohabitation or under customary law and the
respondent has to show their marriage fits in any of the
laws". Moreover, in cases involving a child, the best interest of
the child is of supreme importance. Therefore, the Magistrate was
correct in holding that the Appellant had parental responsibility
towards the children because there was a valid marriage between the
couple, and the best interest of the children calls for the
Appellant's parental responsibility.
Conclusion
There existed a marital relationship between the Appellant and the
Respondent and the Appellant had a duty to support his children.
Commentary
The case reveals the shortcoming of Section 24(1) of the Children
Act, which relieved fathers from an immediate parental obligation to
support their children born out of wedlock. The High Court held that
such a law is discriminatory against children born out of wedlock and
called for the legislature to consider amending the law. Advocates
may utilize the Court's position to challenge that Section and insist
upon the amendment of the law.
By Kibrom Isaak-Teklehaimanot
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