The long-standing High Court decision that having children with a man is not evidence of marriage has been upheld by Homa Bay Town MP Peter Kaluma.
In addition, he pointed out that the decision shields people against opportunistic behavior, implying that those who try to take advantage of relationships for financial gain are known as gold diggers.
Every child is entitled to free and mandatory basic education under Article 53. Sections 7 of the Children’s Act of 2001 and Section 28 of the Basic Education Act of 2013 further uphold this right.
The idea that cohabitation and parenthood do not inevitably constitute a marriage has been continuously maintained by Kenyan courts. Following formal procedures is necessary for marriage to be recognized legally, whether it be through a civil, religious, or customary union.
Justice Joel Ngugi of the Nakuru High Court heard a case in 2021 in which a woman claimed to have five children with a deceased businessman during their five-year marriage and wanted recognition as his wife.
“A man and woman must meet the requirements of a customary marriage before they are regarded as a married couple, even if they live together or have children,” Ngugi said.
The court came to the conclusion that, in the absence of traditional marriage ceremonies, living together and having children do not legally constitute a marriage.
The Supreme Court of Kenya rendered a decision in 2023 that provided additional clarification on the law’s stance on cohabitation. The court decided that the presumption of marriage is not always established by prolonged cohabitation. According to the statement, this presumption ought to be used exclusively in cases where there is substantial proof of the couple’s ability and desire to get married.
