Piece by: Moses Sagwe

30 December 2022

• The law will now be referred to in resolving such cases in the future.

• The judge said that although the plaintiff woman failed to prove it by showing the marriage certificate and was not paid dowry, she deserved the share of inheritance since she lived with the husband.

A court in Mombasa has declared that a 'come-we-stay' engagement is the same as a legal marriage.

In the ruling that will be referred to in the future to resolve disputes in dating and marriages of that type, Judge John Onyiego of the high court in Mombasa said that two lovers who have been together for a long time are equal to a legal marriage and if they happen to be separated then the laws of divorce will be considered in separating the property they got while dating.

According to a local newspaper, a woman whose name was only mentioned as TNI in court documents had the right to get part of her deceased husband's property by living with him for more than five years, despite failing to prove the existence of marriage under the customary law of the Kamba community.

The judge claimed that the length of time they lived together would make any right-thinking Kenyan believe that they lived as husband and wife.

"From the recorded evidence, the deceased had lived together and presented to the public with men and women of right thinking in the community that they were living together as husband and wife," said the judge.

During the hearing of the case, TNI had failed to provide any proof of the existence of a church, court, or traditional marriage between her and her late husband who lived together in a 'come-we-stay' marriage for more than 5 years.

She also did not have any proof that the deceased had paid her dowry but she said that all his friends knew her and recognized her as the legal wife of the deceased and therefore wanted to be part of the distribution of the deceased's inheritance.