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Nairobi Supreme Court Cohabitation Property Appeal: Marriage Capacity and Constructive Trust

The dispute and outcome

Former cohabitants disputed property registered in the woman’s name. The man relied on their relationship and contributions to acquisition, utilities and development. The High Court rejected the claim, while the Court of Appeal presumed marriage and divided the property equally.

The Supreme Court rejected the presumed marriage but found a constructive trust from the parties’ conduct and contributions. It apportioned the interest 70% to the woman and 30% to the man. Long cohabitation did not create an automatic half share.

Two distinct questions

Legal capacity to marry and beneficial property ownership require separate analysis. Failure to establish a presumed marriage does not necessarily defeat a constructive-trust claim. Equally, living together for many years does not establish an automatic equal share. The source decision examined contributions and conduct after rejecting the marriage conclusion.

Evidence of the property arrangement

The record should distinguish acquisition payments, utility connections, improvements, project rent reinvested and evidence of the shared arrangement. A name on a utility account does not prove every payment, and signing a sale agreement as witness is not itself a quantified acquisition contribution. Avoid counting project income twice as each party’s separate personal cash. Identify any gaps rather than filling them with estimates.

Choose the correct appellate document

A certification review uses the originating-motion route and the actual questions of general public importance; the subsequent petition addresses the certified scope. The historical trial used an enactment since repealed, so its old originating-summons basis must not be offered as a current new-claim instruction. Current pleadings, admissibility and forum require independent checking. The specimens below address the Nairobi Supreme Court appeal, rather than prescribe a fresh trial cause.

Sources and procedural samples

Constitution Article 163(4)(b) and (5); Supreme Court Rules 2020 rules 33, 38–40 and 42; constructive-trust principles. The historical originating summons invoked the repealed Married Women’s Property Act 1882: that is not a current new-claim filing route.

Read the official Supreme Court decision · Supreme Court Rules 2020 in the official compilation

This is an explanation of a reported decision, not a claim that our team acted in the matter. The related samples are newly drafted educational reconstructions and remove identifying participant details. The original judgment may identify participants.