JGM and 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. When CNW gave birth to twins in February 2003, JGM kick her out of his house and she moved to another house owned by JGM.
CNW filed a suit in a Magistrate Court against JGM because he failed to provide her with maintenance and child support. JGM denied the existence of his marriage with CNW and argued he did not have any parental obligations to support his children with CNW because they were born out of wedlock. Under the Children Act of 2001 in Kenya, if a child is born out of wedlock, the mother is the primary person responsible for the child’s care until a court determines the father’s parental responsibility, in accordance with section 25(1) of the Act.
However, the Magistrate established that the combination of the documents submitted by CNW, including the sworn affidavit of marriage and the children’s birth certificates, plus the fact that CNW and JGM had lived together as husband and wife for years and had children, amounted to consider them to be marriage. The magistrate also held that the children’s father had a duty to support his children. In 2004, JGM appealed the magistrate’s decision, which was under review by Kenya’s High Court in this case.
The High Court analyzed the concept of marriage in order to identify if JGM and CNW were in fact married and therefore determine the parental responsibility of JGM as the father of the children at issue. The Court recognized that Kenyan marriage laws, particularly those enacted during the colonial period, did not recognize mere cohabitation as a valid marriage. However, precedent case law subsequently 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, 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 two.” Moreover, the High Court recalled that in cases involving a child, the best interest of the child is of supreme importance.
The High Court established that the decision of the Magistrate was correct, because there was a valid marriage between JGM and CNW, and therefore JGM had a parental responsibility towards his children. Additionally, the establishment of father’s parental responsibility is in the best interest of the children.
In this case, the Court also pointed out the discriminatory provision of section 24 of the Children Act, which excuses a father from an immediate parental obligation to support his children born out of wedlock until he applies for parental responsibility under section 25(1). The Court recognized that the law discriminates against children born out of wedlock, because does not impose parental responsibilities to the father per se, contrary to the best interest of the children, and called for the legislature to consider amending the Children Act in this regard.