[2017] KEHC 2551 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KITALE

SUCCESSION CAUSE NO. 179 OF 2014

(FORMERLY KAKAMEGA HIGH COURT NO. 573 OF 2008)

IN THE MATTER OF THE ESTATE OF WILLY WASWA WANYONYI – DECEASED

CHRISTOBEL NDUKU. JUMA ….....................APPLICANT

VERSUS

SABINA MORAA WASWA …...............1ST RESPONDENT

JOSEPH MATANDIKO WASWA .........2ND RESPONDENT

J U D G M E N T

1. The appellant herein Christabol Nduku Juma filed the summons for revocation of grant dated 1st December 2009 praying that the grant issued to the respondents herein on 6th January 2009 be revoked or annulled. She argued that the same was fraudulently obtained as the applicants failed to disclose that the deceased was equally her husband and that there were other children left behind.

2. When the matter came up, it was resolved that the same be heard by way of viva voce evidence.

3. The oral evidence as presented by the parties can be summarised as hereunder. PW1 the objector testified that she was married to the deceased sometimes in April 1998 under the tenets of Kamba customary law. As a result of their union they were blessed with 4 children namely;

a) MSW born on 22/5/2000

b) JAW born on 1/7/2001

c) VMW born on 26/11/2006

d) EAW born on 10/3/2008.

she produced all the birth certificates for the said children .

4. She said that they lived with the deceased for 14 years in Athi River and Bungoma. She referred to the newspaper advertisement – Daily Nation which showed the three widows mentioned.

5. She argued that the Succession proceedings were filed without her knowledge and she was left behind except her 2 children. She said that she attended the burial of the deceased where she was given a chance to speak as the 2nd wife.

6. On cross-examination she said that dowry was paid to her mother and the brother. That her mother was given a cow and other dockens like sugar. She said that the dowry was paid after her husband's death.

7. PW2 Ibrahim Wafula Wanjala stated that he was a pastor with Hope Evangelistic church and that the objector was the wife to his brother the deceased, as well as the 1st petitioner. He said that they got married in 1998 in Athi River and were blessed with 4 children . That the deceased and the objector lived together at Big Tree before he died.

8. During burial the deceased body stayed overnight in the house of the objector and thereafter in the house of the petitioner. After the burial, the dowry of one cow was paid to the objector's parents as well as the parents of the petitioner.

9. On cross-examination he said that he knew the deceased well as he was working at Mlolongo while the deceased lived at Athi River with the objector. After the burial they had a meeting called “Rufu” where the issue of dowry was discussed as per the Bukusu customs.

10. PW3 Moses Barasa Mbati the Senior Chief Tongaren location testified that he knew the deceased as he lived in his area. He knew the objector and the 1st petitioner as the wives of the deceased. He got to know the first wife in 1998 and the 2nd wife in the year 2001. he said that the objector joined the family and opened a business in a place called Ambich a place next to his office.

11. That both ladies lived in the same house and were referred to us Kisii and Kamba by the public. By the time the deceased died the 2nd wife had moved to Big Tree in Trans Nzoia.

12. The objector had 4 children and the petitioner had 6 children. He denied that the objector was a maid. He did produce a letter which he wrote and addressed to the court. He said that he refused to write a letter indicating that the petitioner was the only wife as all the while he knew that the deceased had 2 wives.

13. PW4 Josephine Mumbua Juma the mother to the objector, testified that the deceased married the objector in the year 1997 under Kamba customary law. She said that after his death she was paid a dowry in form of one cow and a sum of Kshs 5000/-. She was aware that the deceased had another wife the petitioner.

14. PW5 Ridah Soita testified that the objector brought her up after her father John Soita died. That the deceased was her uncle. She said that the deceased had 2 wives both the objector and the petitioner./ She denied that the objector was a house girl.

15. Upon closing her case the petitioner Sabaina Moraa Waswa gave her version of her testimony. She said that the deceased was her husband since 1986 whom he married while he worked at Kisii cooperative Bank. They were blessed with the following 6 children;

1) JW

2) GW

3) IW

4) SW

5) RW

6) PW

She said that she did not know that the deceased had another wife. She denied that she ever lived with the objector. She did not see her during the funeral.

16. On cross-examination she admitted that dowry was paid 3 days after his death. She also said that the deceased had 2 children with the objector JW and Moses SW.

17. She also said that she did not know if the deceased had lived at Big Tree . She said that the objector was not at the funeral. She said that she did not have problems with the objector's children.

18. She went ahead to deny all the objectors witness as people she did not know. She said that the objector was a maid to the deceased while in kakamega and that the deceased said that he had children with his maid.

19. DW2 Robert Wakhulo Wanyonyi testified that the deceased was his brother. He said that Ibraham Wafula Wanjala

was not their brother. He said that the deceased had one wife and 9 children 6 children were the petitioner's and 3 from outside. He denied that any dowry was ever paid for the objector.

20. On cross-examination he said that he knew the deceased other wife called Judith Mugo. He said that the petitioners dowry was paid after the burial of the deceased on 1st July 2008. He denied knowing Josephine Mumbua Juma or the objector.

21. DW3 Geofrey Mudogo testified that he knew the deceased as well as the petitioners as they had land at Tongaren and they are neighbours.

22. On cross-examination he said that he did not know the entire family though he knew the parties. He said that he did not see any dowry being paid.

Analysis and Determination

23. The parties herein have filed their submissions which I have had the benefit of perusing through. In my view the two issues which needs to be addressed is whether the objector herein was the wife to the deceased and if so whether the 4 children belonged to them and therefore beneficiaries to the estate.

24. Evidence was led to the effect that the deceased married the objector in 1998 while working in Athi River. That they married under the tenets of Kamba customary law. Later after his death one cow and kshs 5000/- were paid to the objector;s mother. Apparently, it appears that simultaneously after his death the clan members met in what is called “Rufu” and agreed to settle the said dowry which included the petitioners.

It appears that the petitioner did not deny that dowry was paid on her behalf after the death of her husband.

25. Having perused the entire evidence on record I am persuaded that there was sufficient evidence to show that the objector was married to the deceased. My above conclusion is founded on several pieces of evidence .

26. First of all it is not disputed that the deceased stayed with the objector in Athi River from the year 1998 while working there. Later when he transferred to Kakamega he continued staying with her. The petitioner's argument that the objector was a maid does not hold water. Infact PW4 Rodah Soita who stayed with the deceased wife after the death of her father the brother to the deceased said as much. IN fact PW2 list the said John Soita Wanyonyi as one of his brothers in his testimony.

27. More importantly the children born by the objector and the deceased all bear the deceased's names. The fact that the petitioner recognised the first 2 children tells as much. What rationale did she use to recognise the said 2 children and not the other last 2? If this was so, why did she fail to recognise their mother the objector?

28. I have read the evidence in chief and cross-examination of the petitioner and in my view she is blowing both hot and cold. On one hand she denies ever having seen the objector and on the other hand, she is referring to her as a maid or housegirl. How can she recognise the children and fail even to know the mother?

29. Further I am satisfied that there was valid marriage between the deceased and the objector by virtue of the dowry paid to the objector's mother and brother posthumously. Both the objector and the petitioners dowries were paid posthumously something which was acceptable under Bukusu customary law.

30. I do not find any sufficient reason why the objectors mother would want to lie to the court that she received the dowry.

31. From the evidence on record the deceased purchased land and build a house for the objector at Big Tree within Trans Nzoia. That is where the objector stays with her children. Again despite her denial the petitioner knew this for a fact which infact led her to file suit against one Haji Kisabuli. If she was not his wife why would the deceased undertake such an important settlement. As the chief PW3 correctly stated the deceased wanted to separate his respective families.

32. Were I to take the route of whether or not there was a presumption of marriage between the objector and the deceased I think the 14 years they lived together would be sufficient evidence. In the now famously quoted case of Hortensiah Wanjiku Yawe Vs The Public Trustee Civil Appeal No 13/1976 (enreported)the court went on to state as follows;-

“The presumption did not depend on the law or a system of marriage. The presumption based on very long cohabitation and repute that the parties are husband and wife.”

33. The fact that dowry was paid to the objector parents posthumously and according to the Bukusu customs clearly proved that the deceased was married to the objector.

34. In the premises I hold that this is a proper matter to interfere with the grant issued to the petitioners herein. The objector has proved her relationship with the deceased herein. The 4 children born from their union are all for everybody to see. I find that the petitioner was economical with the truth.

35. The grant issued on 1/12/2009 is hereby revoked and a fresh grant is hereby issued in the joint names ofSabina Moraa Waswa and Christabel Nduku Juma the legitimate widows of the late Willy Waswa Wanyonyi.

Each party shall bear their respective costs.

Delivered, signed and dated on 9th day of October, 2017 at Kitale.

In the presence of;

Munialo for Applicant

No appearance for the Petitioner

Kirong – Court Assistant

Court: Judgment read in open court.

H.K. CHEMITEI

JUDGE

9/10/17