[2017] KEHC 6166 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

SUCCESSION CAUSE NO. 3327 OF 2004

IN THE MATTER OF THE ESTATE OF DANSON KIARIE KAGUA

Elizabeth Gachambi…………………………………………….Applicant

Versus

Grace Nduta Kinuthia....………………………………..1st Respondent

John Gathigi Kiarie……....……………………………2nd Respondent

Judgment

1. On the 30th of August 2005 Elizabeth Gachambi hereinafter referred as the applicant filed a summons for revocation and annulment of the grant. The application is brought under Rule 44 and Rule 73 of the Probate and Administration Rules. The applicant seeks the following orders;

i. That there be a revocation and annulment of letters of administration to the Respondents issued on the 20th of December 2001.

ii. That the applicant be made an administrator to the deceased’s estate.

iii. That costs of the application be provided for.

2. The application is based on the applicants affidavit filed in support of the application. The respondents are Grace Nduta Kinuthia hereinafter referred to as the 1st Respondent and John Gathigi Kiarie is the 2nd Respondent.

3. The deceased Danson Kiarie Kagua died on the 22nd of December 2002. The 1st and 2nd respondents petitioned for a grant on the 18th of October 2001 and the said grant was issued on the 20th December 2001 was confirmed on the 12th May 2005. According to the respondents’ affidavit in support of the grant the deceased was survived by the following persons; Nancy Wambui, Samuel Kagua, George Kinuthia, John Gathigi Kiarie, Catherine Wanjiru , Ann Wanjiru and Grace Nduta Kinuthia the widow. The properties listed for distribution were Dagoretti/Mutuini/T.313,Githunguri Constituency Ranching Co. No. 4606 and Githunguri Constituency Ranch plot No. Z422. The petition was filed in Succession cause no. 2529 of 2001.

4. Succession cause no. 3327 of 2004 in which I write this judgment was filed on the 2nd of November 2004. The applicant filed a Citation against Grace Nduta, stating she was the deceased’s widow and that Grace the first wife had not taken out letters of administration. Thereafter she filed the summons for revocation. It’s not clear whether the 2 files were consolidated. The suit was partly heard by Justice Gacheche, who heard the applicants’ case between February 2008 and April 2009. I heard the respondents’ witnesses.

5. From the typed proceedings which are from Justice Gacheche recordings in court, this is what I gather as the applicant’s case. Three witnesses testified. Elizabeth Gachambi Muchendu, the applicant, Joseph Mbugua Kiarie and Timothy Mburu Thiongo. Elizabeth testified that she married the deceased in 1978 under Kikuyu customary law whilst in Nyahururu and they got two children, Joseph Mbugua and Johnson Kagua born in 1976 and 1978 respectively. They lived in Dagoretti/Mutuini/T.313 for 22 years and that her husband chased her, she left her husband’s home on the 23/6/1999. She learnt of Grace having married her husband in 1999. She got to know that they had other children. Grace did not live with them at Dagoretti. Her husband died on the 22/12/2000 and she attended the funeral together with her children and her mother. She constructed a house in the said plot in 1996, Grace was not involved in the said construction. She learnt of the petition after she made inquiries in court. She was not included in the distribution yet she contributed towards the purchase of shares in the Ruiru plots. That she is entitled to inherit as she was a wife of the deceased. That her husband could not have a Will as he was already blind. On being cross examined she testified that the deceased paid dowry and gave a goat and that he was accompanied by friends. Her parents, her siblings and village elders were present during the ceremony, plus the deceased’s half-brother. The ceremony took place in their home Nyahururu. Her husband paid Kshs. 8000/-. They did not perform Ngurario ceremony. That by 1976 when she gave birth to her first born the deceased was her friend and he is the father of her son, but she named him after her father as she had not moved into the deceased’s home. That the deceased never mentioned another wife nor his mother. They began living together in 1978 in Nyahururu and moved to Dagoretti in in 1979. The deceased acquired the said plot in 1966 and they built a bigger house in 1996 and that the deceased acquired the shares in Githunguri Company in 1980, she also contributed. That she took long to lodge the objection as she waited for the respondent to invite her to petition jointly. That she learnt that the 1st petitioner had been married to Kiarie (the deceased), and that Kiarie’s niece pointed out the lady to her. That when she confronted Kiarie he confirmed that she had been his wife but that he would not take her back. That a divorce case was filed in 1982 but she is not aware how the case ended. That though she lived with his parents they denied knowledge of her after Kiarie’s death. That Kiarie signed an affidavit in which he confirmed they were married. She produced an affidavit as proof of her marriage, an NHIF card, photos taken at the husband’s burial and a search certificate of the property of Dagoretti.

6. Joseph Kiarie’s evidence was that Kiarie was his father and that his brother is Johnson Kagua Kiarie. That his ID card reads Joseph Mbugua Kiarie. That they lived in Mutuini in Dagoretti. That in 1998 he met his father’s other children Samuel Kagua, John and Kinuthia when they came to see their father. That his father recognised them as his children. That he participated in his burial and funeral meetings. That he met the 1st respondent in 1999 or 2000 when she moved in after they left their home when their father became problematic. That he does not know why he was named after his maternal grandfather. That he would concede to a DNA test if need be, there was no time that his father denied he was his son.

7. Timothy Mburu Thiongo recalled that the deceased was his family friend and that he first met Elizabeth in 1978. She was his wife’s friend. They visited them Elizabeth and the deceased her husband frequently. In 1999 he learnt from the deceased that he had another wife. Elizabeth left the deceased as their relationship had become sour. Grace then moved in when the deceased became ill in 1999. On being cross-examined he testified that Elizabeth and the deceased went to their area in 1978 but he does not know when they got married, but that they lived together as man and wife.

8. The 1st respondent adopted her statement dated the 6th May 2015 and testified as follows; that the deceased was her husband. They got married in 1959 under Kikuyu customary law and later they had a church wedding in 1966. They lived in Dagoretti village. They were blessed with 7 children. They were blessed with two children upon their customary marriage in 1959 namely; Leah Nyakio (deceased) born 1961, Nancy Wambui born in 1962. That they got the following children after 1966 namely; Samuel Kagua Born in 1969, George Kinuthia born in 1979, John Gathigi born in 1972, Catherine Wanjiku born in 1976 and Ann Wanjiru born in 1984. They bought a plot in Kirigo Village in Dagoretti from monies they received as a wedding gift. The land is Dagoretti/ Mutuini/ T. 313 .They began saving together in 1966 and they bought land from their savings. In 1975 she developed the Dagoretti plot. Her husband fell sick in 1998 and 1999 and on the 22nd of December 2000 he died. After his death they read the Will dated the 25th of July 2000 that had been left by him to Mary Wairimu his eldest sister. She does not know the applicant nor did she hear from her from the relatives. She never saw the applicant at the funeral nor does she know his sons. On being cross-examined she testified that she did not separate with her husband and that they lived together. That her husband was employed as a driver by an Asian. That the deceased was buried in Ruiru, she sold the said plot in 2014 because of the liabilities he left. That the Will was written in Kikuyu.

9. John Gathigi Kiarie testified that the deceased was his father and his other siblings. That his father fell ill in 1998 and 1999 and then in died in December 2000 and they buried him in plot in Ruiru. His Will was read after his death and thereafter they petitioned for the letters of administration with his mother. During cross-examination he testified that he does not know the applicant. That they never met in 1998. He could not identify the lady next to his mother in a photograph. He denied knowing Elizabeth as their father’s wife. He confirmed they sold the Ruiru plot.

10. Mary Wairimu Kairuki testified that she is the deceased’s older sister. That Grace was the wife of the deceased who he married under Kikuyu customary law in 1959 and later solemnised their marriage in 1966. That her late brother left her with a Will dated the 25/7/2000 where he stated that his wife was Grace Nduta Kiarie and her six children and that they were the only dependants. . That she does not know Elizabeth nor did she see her at her brother burial, she has not seen her in her mother home in Nyahururu nor has she seen her sons. During cross-examination she stated that she knew her brother better as she is the oldest and that she stayed with her brother and his family that she was close to him.

11. Patrick Ndungu recalled that the deceased was his uncle and the Grace Nduta was his surviving wife. He was the master of ceremonies at his burial in December 2000. He does not know the applicant or her children. That he was close to his uncle and he never told her about the applicant. During cross-examination he told this court that his uncle had 7 children, one brother and sisters. That his uncle was a driver and that at one time he lived with him in Nyahururu. He did not know the lady in the picture next to his uncle’s coffin. That he cannot tell if the lady had a relationship with his uncle.

12. Parties filed written submissions. The applicant reiterated the evidence on record. It was submitted that the applicant cohabited with the deceased and that her evidence is supported by the affidavit the applicant and the deceased swore, dowry paid and the NHIF card, thus she is entitled to a share of the deceased’s estate. That though the respondent claims that the deceased had a Will the respondent proceeded with obtaining the letters of administration as though the deceased died intestate. That though the respondent denied knowledge of the applicant the photo marked exhibit no. 3 shows the 1st respondent and the applicant during the deceased’s funeral and that a citation was filed by the applicant. It was submitted that from the evidence adduced the respondent was aware of the applicant and her sons and that there was sufficient evidence to show concealment of material facts. That the deceased had acknowledged the applicants two sons and therefore the respondents left out some beneficiaries to the deceased’s estate. That the mandatory provisions of section 51 of the Act and Rule 7 of the Rules were not complied with. That the identities of the beneficiaries and their interests in the estate are material facts and once it is established their interests were concealed; the grant of representation issued is flawed. For this argument the applicant relied on Succession Cause No. 24 of 2002 In the Matter of the Estate of Muirui Muchoro (Deceased).

13. The respondents in their submissions state that the issues for determination are ; whether the petitioner is a legal wife under the law, whether she is entitled to the deceased’s property and that should the revocation orders be granted ?. On the 1st issue its submitted that there is uncontroverted evidence that the respondent was legally married to the deceased as they contracted a statutory marriage under the African Christian Marriage and Divorce Act on the 7/5/1966, hence the alleged marriage between the applicant and the deceased was an illegal marriage. That Ngurario’ a key ceremony was not performed during the alleged marriage. That the deceased’s sister has denied knowledge of the applicant. That the applicant had not been candid and has tried to cover up her dishonesty. On whether the deceased left 2 children, it was submitted that section 3 (2) defines who is a child, that the applicant has not demonstrated that the deceased did expressly recognise the 2 children as his. That the deceased in his Will stated who were his children. That there was nothing tendered to show that the 2nd son even exits. That the allegation that the grant was obtained fraudulently by deceitful concealment is baseless and unsubstantiated. That the paternity of the children is fundamental, there must be sufficient proof and that the objector’s photographic and viva voce evidence falls short of the requisite standard. That though section 29 of the Law of Succession defines who is dependant, in this case it is not possible to say with any degree of certainty who the father of the children is. For this argument the respondent relied on the case of Kimani Mathenge Muriuki & 2 Others vs. Patrick M. Muriuki & Anotherwhere Justice Githinji (as he then was) held that, “ it is the burden of the mother to prove on a balance of probabilities that the deceased was the father of the child….. I do not think that the mere occasional reference of Lucina as his child in a few documents without concrete evidence that the deceased was the natural father of the child; that they lived together as father and child; that she was absorbed in the family of the deceased or that the deceased voluntarily assumed permanent responsibility over her, is sufficient to show that she was a dependant of the deceased in such sensitive matters as inheritance.”.The respondent also relied on the case of , In the Matter of the Estate of James Murirui Waweru, Succession Cause No. 1871 of 1991 , where Justice Rawal as she then was held that , “ …the Birth Certificate does not show that the deceased as the father. Some photographs taken with the deceased and the child do not prove the requirements of the law….”

14. On the whether the applicant is entitled to the deceased’s property? The respondent relied on her evidence on how they acquired the property with the deceased. It was submitted that the applicant had no proof that she acquired any property with the deceased. That there is evidence that the respondent and the deceased did save together, and his Will shows how the property is to be distributed. On the photos taken at the burial it was submitted that the burial was open to the public and that only one witness was cross-examined on them. On the 3rd issue it was submitted that due process was followed by the respondent in obtaining the grant, there was no concealment of material facts, that all the beneficiaries were disclosed and that the applicant cannot claim to be a dependant. The respondent submitted on what the Marriage Act 2014 terms as Void marriages. They relied on sections 11 (1) (c), 9 (a), 3 (1), arguing that the deceased had no capacity to marry another wife having married the respondent. That the applicant’s evidence that she cohabited with the deceased for 21 year as is proof of marriage is misleading the court as the same is void as per section 3 (1) of the Marriage Act 2014. On the applicability of the Marriage Act 2014 in this matter the respondent relied on Divorce Cause No. 30 of 2008 M.S. V. vs. S. J. V & another,where Justice Lenaola held that , “ The issue was whether the Hindu Marriages and Divorce Act ( repealed) or the marriage Act, 2014 applied to a divorce cause which was filed in 2008 before the commencement date. Lenaola J held that the Act applies to all on-going divorce causes as far as practicable. He cited Section 98(2) which provides that “proceedings commenced under any written law shall, so far as practicable, be continued in accordance with the provisions of this Act.” It was further submitted that the objection is an afterthought and the court should find that the petitioners are based suited to administrator the estate. That the applicant is not the wife of the deceased nor do the children belong to the deceased and that they cannot be said to be dependants.

15. I have considered the evidence adduced, the exhibits produced and submissions. The issues for determination are;

i. Whether the applicant was married to the deceased

ii. Whether the grant should be revoked.

iii. Whether the applicant should be appointed as a core administrator.

This court did not have the benefit of hearing the evidence of adduced by the objector. I will rely on the evidence that was recorded which has been typed and summarised in this judgment. On whether the applicant was married to the deceased. The applicant claims that she married the deceased in 1978 and was chased by the deceased in 1999. According to her the deceased paid dowry to her parents in the form of a goat and money, no Ngurario was held. Her evidence on her marriage with the deceased as supported by her son’s evidence and her neighbour who knew them as husband and wife. The respondent’s evidence is that the applicant was not a wife to the deceased her evidence is supported by that of her son and her sister in law. It is now my task to decide whether the applicant was a wife to the deceased. In support of her evidence the applicant also produced an affidavit sworn by herself and the deceased. Paragraph 3 of the said affidavit states that they were married in 1978 and all Kikuyu Ceremonies were performed. It was upon the applicant to proof her marriage with the deceased. The evidence adduced in my view is not sufficient to prove that she was a wife. An affidavit per se is not proof of marriage or photographs taken at a burial. Being a Kikuyu by tribe the applicant should have called evidence to support her claims that dowry was paid. According to Cotran the essentials of a valid Kikuyu Customary marriage are now documented and codified in The Law of Marriage and Divorce and summarizes them as follows;

i. Capacity to marry

ii. Consent of parties

iii. Ngurario

iv. Ruracio

v. Commencement of Cohabitation

I can only conclude that she could have been in some relationship with the deceased. Her evidence is insufficient for this court to find that she was a wife. She has also failed to proof that she was dependant of the deceased and also that her two sons were dependants of the deceased. There was no evidence or proof that showed that her two sons were sired by the deceased. I also note that the applicant has failed to show her contribution towards the properties listed as part of the deceased’s estate. The respondent has shown that she was the wife of the deceased from 1959 up to the time the deceased died. She has adduced a marriage certificate between her and the deceased and evidence of dowry paid, evidence of savings and am persuaded that by the evidence that she did invest with the deceased. There is also a will which the deceased left with the sister who testified in court on the same. Having made a finding that the applicant has failed to proof that she was a wife of the deceased I need not make a finding on the 2nd and 3rd issue. The application of revocation is therefore dismissed with no orders as to costs. It is so ordered.

Dated signed, delivered this 2nd day ofFebruary2017.

R. E. OUGO

JUDGE

In the presence of;-

…………………………………………….…..…………For the Applicant

……………………………………………………….For the Respondents

Ms. Charity Court Clerk