[2009] KEHC 3691 (KLR)
The court held that, notwithstanding the respondent's statutory marriage to the deceased, section 3(5) of the Succession Act recognizes the applicant as a wife for the purposes of succession, provided there is evidence of such a union. The applicant produced supporting documents, including a letter from the local...
Source-derived case information.
- Citation
- [2009] KEHC 3691 (KLR)
- Parties
- Applicant: Agnes Katto Njoroge; Respondent: Alice Wakiini Wachira
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 2208 of 2008
- Procedural Posture
- Succession Cause / Interlocutory Application for Restraining Orders Pending Appointment of Administrator
- Outcome
- Application allowed in part; interim restraining orders granted.
- Judges
- JW Gacheche
- Legal Topics
- Succession of Estates, Intermeddling With Estate, Matrimonial Property, Locus Standi
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Agnes Katto Njoroge
Applicant
Alice Wakiini Wachira
Respondent
Procedural Posture
Succession Cause / Interlocutory Application for Restraining Orders Pending Appointment of Administrator
Legal Issues
- 1 Whether the applicant, as an alleged second wife, has locus standi to seek orders restraining the respondent from interfering with the deceased's estate.
- 2 Whether the respondent's actions amount to intermeddling with the estate of the deceased before the appointment of an administrator.
- 3 Whether the applicant is entitled to interim orders to protect her possession and income from the matrimonial home pending determination of the succession cause.
Ratio Decidendi
The court held that, notwithstanding the respondent's statutory marriage to the deceased, section 3(5) of the Succession Act recognizes the applicant as a wife for the purposes of succession, provided there is evidence of such a union. The applicant produced supporting documents, including a letter from the local chief and affidavits, one sworn by the deceased, indicating the existence of the marriage. The court found that the applicant would suffer irreparable loss if denied the restraining orders, especially since the respondent did not dispute locking her out or collecting rents. Therefore, the applicant was granted interim orders to restrain the respondent from interfering with the...
Court Disposition
Application allowed in part; interim restraining orders granted.
Orders
- The respondent is restrained from interfering with the estate of the late Jackson Wachira Miano, specifically house number 443-2 Kayole.
- The respondent is restrained from interfering with the applicant's quiet possession of house number 443-2 Kayole and from collecting rents or income from the premises.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Succession Cause 2208 of 2008
AGNES KATTO NJOROGE …………………………….. APPLICANT
versus
ALICE WAKIINI WACHIRA …….…………………….. RESPONDENT
RULING
This is an application by AGNES KATTO NJOROGE(‘the applicant’) who after filing a citation herein now seeks an order to restrainALICE WAKIINI WACHIRA(‘the respondent’), from interfering with the estate of the late JACKSON WACHIRA MIANO(‘the deceased’),a businessman who died on 21/7/2008, and who at the time of his death was a resident of Kayole Estate Nairobi.
The applicant claims to be a wife of the deceased, also acknowledges that the respondent is the deceased’s first wife. She seeks further orders to restrain the respondent who is allegedly intermeddling with the said estate, from interfering with her quiet possession of house number 443-2 Kayole, and/or collecting rents or such other income there from. She claims that on the said premises stands her matrimonial home.
She deposes that the deceased married her in the year 1998, and that the respondent who had allegedly abandoned her husband started interfering with his estate soon after his death, a matter which was reported to the chief who requested the respondent to desist such action and to maintain status quo till an administrator is appointed; that she did not comply forcing the applicant to report the matter to the police after which she allowed the respondent to occupy a room within the premises, but that the respondent finally locked her out of the premises.
The application is however opposed on the grounds that having contracted a statutory marriage with the respondent under the African Christian Marriage and Divorce Act, the deceased had no capacity to contract another marriage with the applicant in which case, the latter has no locus standi in to file a citation or for that matter this application.
I have considered the pleadings herein as well as the submissions of both counsel, and at this particular moment As for now I need not reiterate the fact that for purposes of succession, the court will take cognizance of second and later unions even where the deceased had a valid subsisting marriage. Such is the position which is clearly laid down in section 3 (5) of the Succession Act Cap 160 of the Laws of Kenya which provides that ‘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’.
I have no doubt that the above legal position was the basis for Justice Nambuye’s decision in the case ofRe Estate Keitany [2002] 2KLR Page 720,and it is therefore obvious that the case of Patrick Kilonzo Matheka vs Timina Kilonzo Matheka HCCA (Mks) No 32 of 1994, which the respondent’s counsel relied on, cannot aid him in view of the aforementioned legal provisions.
The fact that the applicant alleges to have been married will require proof and will thus be a matter of evidence which will of essence be taken at a later stage, but for now, she has produced a letter from their local at Kayole to confirm that she was one of the wives of the deceased, and has also exhibited two affidavits, one of which was sworn by the deceased on 20/12/2004 in which he deposes that they got married in the year 1998, while she deposed likewise in her affidavit of 30/11/2004. I will for these reasons give her the benefit of doubt and I find that she stands to suffer irreparable loss should I deny her the orders which she seeks, especially because the respondent does not controvert the fact that she has locked her out of the premise or that she is collecting the rents.
I do in the circumstances grant her orders in line with her prayers 2 (a), (b), and (c), save that the applicant who shall henceforth collect all rents and dues from the said premises shall be required to deposit the same in court on a monthly basis, until an administrator over the subject estate is finally appointed, and for which she will be fully accountable.
Costs will however be in the cause.
Dated and delivered at Nairobi this 24th day of October 2008.
JEANNE GACHECHE
Judge
Delivered in the presence of: