presumption of marriage

Question 1

meaning of presumption

in marriage: which applies

purpose: 3

Answer 1

its a legal inference by court that can be proved or disproved.- s.4 of EA +119 of EA

presumption of fact and rebuttable

purpose: it allows the court to proceed on the basis that there is a marriage for:
1. succession purpose
2. death
3. divorce benefits
BUT DOES NOT MAKE THE MARRIAGE VALID

Question 2

ceremony

elements: 4

case: 1

Answer 2

doubts arise on the validity of the marriage

elemets:
1. capacity
2. ceremony
3. cohabitation - s.2 MA defines it as unmarried live together for a long time.
4. reputation

case:
1. chief adjudication v bath: the ceremony was not done in a registered building and not registered.

Question 3

without ceremony - 3 elements

cases: 7
proof of presumption - 1

Answer 3

Elements:
1. capacity
2. cohabitation - long and uninterrupted
3. reputation: notoriety ( not only to your family members but the society at large)

cases:
1. rosemary aoko munjal v noel munja

2. VRM v MRM
3. Hottensiah wanjiku v public trustee - cohabitation recognised to presume marriag e
4. RLA V FLO - reputation
5. KO V JO
6. mary wanjiku v esther kiarie - capacity
7. RNN V PS

balance of probability
mary njoki in 1984: no need of proof of attempt to go through a form of known marriage in law

Question 4

burden of proof

Answer 4

he who alleges must prove

Question 5

standard of proof- 1 case

Answer 5

cogent - yawe v yawe

Question 6

presumption of divorce

1 case

issues with the judgment

Answer 6

re estate jecinter of njoki

problem:
1. judicial activism
2. divorce is highly regulated by statute
3. OKN V OPN: without an existing marriage, there cannot be sharing of matrimonial home owned by the spouses.

4. would wreak havoc and diasv some innocent parties.