https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9445

In re Estate of the Late Musyimi (Deceased) (Succession Cause E600 of 2022) [2026] KEHC 9445 (KLR) (Family) (2 July 2026) (Judgment) Neutral citation: [2026] KEHC 9445 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Family Succession Cause E600 of 2022 HK Chemitei, J July 2, 2026 IN THE MATTER OF THE ESTATE OF THE LATE NDOLO KIOKO MUSYIMI (DECEASED) Between Philippa Wanza Kioko 1st Petitioner Daniel Musyimi Kioko 2nd Petitioner Anne Wanza Kioko 3rd Petitioner and Jane Jerry Kioko Objector Judgment 1.The deceased herein Ndolo Kioko Musyimi died on 30th December 2021 and the Petitioners applied for letters of administration on the grounds that they were his children. 2.The deceased prior to his death had married the Applicant’s mother Loise Wambui Muigai under the tenets of the Marriage Act on 28th November 1987. The deceased later divorced her and the decree issued sometimes in January 2020. 3.The deceased married the Objector under the tenets of Hehe customary law on 14th March 2015 and later contracted a civil marriage in Tanzania on 27th June 2015. 4.The marriage with the Objector resulted on two issues who at the time of this cause were still minors. 5.It is the Objectors’ case that by the time she married the deceased he had assured her that he had divorced the Applicant’s mother and therefore there was nothing to stop their marriage. 6.The Objector testified and called two witnesses and the Applicants mother testified but did not call any witness. 7.It is the Objector’s case that she met the deceased sometimes in 1998 and became friends and later proposed to her and they moved in as husband and wife in 2002. By then he informed her that he had divorced his wife. 8.The deceased later visited her parents and fulfilled the traditions of dowry payments and indeed the same was paid out. Subsequently they underwent a civil marriage. 9.PW 2 Michael Muya Musyoka a friend to the deceased testified that he accompanied the deceased to Tanzania where they negotiated with the Objector’s family and dowry was paid. 10.He went on to state that thereafter the deceased introduced the Objector as his wife and even during his ailment the Objector was present with him till his demise. 11.That during the funeral she was recognised as his wife. 12.When cross examined, he said that he was aware that the deceased had a first wife with whom they had separated by the year 2015. 13.PW 3 Boaz Akim Kitaja whom the Objector is his nice testified about the customary negotiations they had with the deceased and subsequent payment of the dowry on 14th March 2015. 14.He said that the Objectors’ parents had since passed on and that he stood in their place. He said that he had known the deceased from the year 2001 and that the Objector had introduced him as the father of her child. 15.He went on to state that in their customs once the dowry is paid then it is assumed that the marriage is valid for all intend and purposes. 16.When cross examined, he said that he was not aware that the deceased had another valid marriage 17.Loise Wambui Muigai the mother to the Applicants’ testified that she was married to the deceased on 28th November 1987 under the tenets of African Christian Marriage Act and that they divorced and she produced the decree from the Court dated 2nd March 2020 as her evidence. 18.She said that the Objector could not be appointed as an Administrator because the property left by the deceased was acquired between him and her. That by the time she married the deceased, he did not have any property. 19.She said that by the time the Objector contracted the marriage with the deceased her marriage was still subsisting. 20.She said that she was currently residing in Kitusuru title number Nairobi/101/145D. 21.When cross examined, she confirmed that the deceased by 2014 was already intimate with the Objector which according to her was shocking as she was still married to the deceased. 22.Her dispute therefore was centered on the legality of the marriage between the Objector and the deceased. 23.The Court directed the parties to file submissions and at the time of writing this judgement, it is only the Objector who had complied. 24.The substantive issue as submitted by the Objector is that despite the illegality of her marriage with the deceased Courtesy of his marriage with DW1 which had not been dissolved she remained a wife for purposes of succession as espoused under Section 3(5) of the Succession Act. 25.For the said singular reason she prayed that her objection be allowed as prayed. Analysis And Determination 26.The Court has heard the parties, perused the pleadings as well as read the submissions. 27.There is no doubt that the marriage between the Objector and the deceased was illegal by virtue of the fact that his marriage with DW1 was still subsisting. The same was monogamous and what the deceased did could easily pass as bigamy. 28.There is sufficient evidence that customary marriage ceremony was conducted in Tanzania and dowry paid. Thereafter a civil marriage was conducted and there is a certificate to that effect. 29.The deceased and the Objector stayed together as husband and wife and out of their union they were blessed with two issues. 30.Sufficient evidence showed that they conducted themselves as husband and wife and even at his deathbed was the Objector. 31.The Objector testified that the deceased had told her that his first marriage had been dissolved by way of divorce but it was not the case though it came much later. 32.The totality and summary of the evidence so presented before Court was that the deceased treated the Objector as his wife fully. 33.The provision of section 3(5) of the Act is worth reproducing here. 34.The same states as follows:“Notwithstanding the provisions of any other written law, a woman married under a system of law which permits polygamy is, where her husband has contracted a previous or subsequent monogamous marriage to another woman, nevertheless a wife for the purposes of this Act, and in particular sections 29 and 40 thereof, and her children are accordingly children within the meaning of this Act.” 35.My understanding of the above provision is that the Court will validate for purposes of succession a marriage which was monogamous and thereafter the deceased underwent another customary marriage. The Act indicates “notwithstanding the provisions of any other written law” 36.In this case the deceased indeed underwent a customary marriage ceremony and later validated it through a civil union. My position is that the same to the extent that the first marriage was still subsisting was null and void legally speaking. 37.Do the provisions of Section 3(5) above aid the Objector? My answer is yes. I say so because parliament for purposes of succession insulated any kind of marriage the deceased went through while he was still alive. If the said parliament intended otherwise then it ought to have come out clearly by spelling out just like in the Marriage Act that once a party undergoes a monogamous marriage then he is barred even in his ’’grave’’ from undergoing another marriage. 38.The authorities cited by the Objector dwells only on a situation where the deceased undergoes a traditional or customary marriage while a monogamous marriage was subsisting. 39.In the case at hand, he underwent both. My reasoning therefore is that since the Act declared a customary marriage to be valid despite the existence of a monogamous marriage being alive, then, by the same breath, any second monogamous marriage like the case at hand will be deemed valid for purposes of the Succession Act and in particular section 29 and 40 thereof. 40.Consequently, I do find the objection herein plausible. The deceased in any case had introduced the Objector to all and sundry as his wife and had children with him. 41.The deceased first wife in her testimony confirmed that she was aware that the deceased had married the Objector. 42.In my view therefore, the area which will be contentious shall be the distribution of the estate. According to DW1 the properties in question were matrimonial and that it was unfortunate the deceased died before the Originating Summons Number 75 of 2019 was heard. 43.I think this is an issue for determination at the right time. Otherwise, the Objector together with her children for purposes of Section 3(5) and 29 of the Act is a wife. 44.In the premises I shall allow the objection proceedings as follows:(a)The Objector Jane Jerry Kioko is a wife to the deceased and is hereby appointed as one of the joint Administrators of his estate.(b)The Administrators jointly and severally shall within 45 days from the date herein apply to have the grant confirmed.(c)Costs in the cause. DATED SIGNED AND DELIVERED VIA VIDEO LINK AT NAIROBI THIS 2ND DAY OF JULY 2026.H.K. CHEMITEIJUDGE, FCIArb.