https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10065

Ndumbi v Thua & another (Succession Appeal E007 of 2024) [2026] KEHC 10065 (KLR) (10 July 2026) (Judgment) Neutral citation: [2026] KEHC 10065 (KLR) Republic of Kenya In the High Court at Nyeri Succession Appeal E007 of 2024 MA Odero, J July 10, 2026 Between Esther Wairimu Ndumbi Appellant and Esther Wambura Thua 1st Respondent Samson Warui Kamau 2nd Respondent Judgment 1.The Appellant herein Esther Wairimu Ndumbihas filed theMemorandum of Appeal dated 8th May 2024 seeking the following orders that:-“(a)This Appeal be allowed with costs.(b)The Ruling dated 4th April 2024 of the Honourable Magistrate in Mukurwe-ini Succession Case No. E127 of 2021 be set aside/vacated.(c)The Honourable Court be pleased to direct that property Title Number Githi/Ithanji/525 which forms the Estate of Kamau Ndoro be shared equally between the 1st Respondent and the Applicant.(d)Such orders and relief that the Honourable Court may deem fit to grant.” 2.The Respondent/Administrators Esther Wambura Thua And Samson Warui Kamau both strenuously opposed the appeal. The matter was canvassed by way of written submissions. The Appellant filed the written submissions dated 21st October 2025 whilst the Respondents relied upon their submissions dated 13th March 2026. Background 3.This succession cause relates to the estate of Kamau Ndoro Matuku(hereinafter ‘the Deceased’) who died intestate on 22nd July 2007. A copy of the Death Certificate Serial No. 1000579 appears at Page 24 of the Record of Appeal filed in Court on 23rd September 2025. 4.The Deceased was said to have been survived by the following persons(a)Peter Ndoro Kamau - Son(b)Issack Maina Kamau - Son(c)Samson Warui Kamau - Son(d)Francis Njurata Kamua - Son(e)Beatrice Wairimu Kamau - Daughter(f)Alice Wamuyu Kamau - Daughter(g)Esther Wambura Thua - Daughter(h)Margaret Watetu Mwangi - Daughter(Deceased) 5.The estate of the Deceased comprised of one asset being the parcel of land known as LR NO. Githi/Ithanji/525. 6.Following the demise of the Deceased/his children Esther Wambura Thua and Samson Warui Kamau filed a Petition for Grant of letters of Administration Intestate dated 16th November 2021. A grant was duly issued to the two on 15th February 2022. The Administrators then filed a summons for Confirmation of Grant dated 5th January 2023 in which it was proposed that the asset of the estate being LR Githi/Ithanji/525 devolve to the 1st Respondent absolutely. 7.The Protestor Esther Wairimu Ndumbithen filed an Affidavit of Protest dated 4th February 2023. The Protestor (Appellant) claimed that she got married to one ‘Margaret Watetu’ a daughter of the Deceased under the system of woman to woman marriage which is a recognized practice under Kikuyu Customs and traditions. The Appellant therefore claimed that following the demise of Margaret Watetu on 14th May 2021, she and her children became entitled to benefit from her share of the estate. 8.The Protest was heard in the Lower Court and vide a judgement delivered on 4th April 2024, Hon. D N Bosibori, Senior Resident Magistrate dismissed the protest and allowed the summons for confirmation of Grant filed by the Respondents. The trial court further directed that the estate of the Deceased was to devolve absolutely to the 1st Respondent. Finally the Court directed the Administrators to file full and accurate accounts of their management of the estate. 9.Being aggrieved by this judgment the Appellant filed this Memorandum of Appeal which is premised upon the following grounds;-“1.That trial court erred in fact and law by disallowing the protest on the grounds that the Protestor failed to prove dependency or woman to woman marriage under Kikuyu Customary Law.2.That the trial court erred in fact and law in failing to appreciate the diverse customs that applied in African communities with respect to woman to woman relations misdirecting herself from the circumstances of the case that the ‘woman husband’ was unmarried having been chased away by her former husband for being barren.3.That the trial court erred in law and fact by finding that the Appellant failed to prove dependency and failed to give due consideration to the evidence tendered by the Appellant to the extent that having spouses provide for family interchangeably does not negate dependency.4.The learned trial magistrate erred in law and in fact by failing to address herself completely on the interests and rights of the Appellant as a beneficiary/dependent of the deceased late daughter.” Analysis And Determination 10.I have carefully considered this memorandum of appeal as well as the record of Appeal filed in this matter. 11.This is a first appeal. It is settled law that the duty of the first appellate court is to re-evaluate the evidence which was adduced in the subordinate court both on points of law and fact and come up with its own findings and conclusion [see Peters -vs- Sunday post limited [1958] E. A. 424] 12.In Selleand Another -vs- Associated Motor Boat Company Ltd & Others [1968] 1 E.A 123 it was stated that“An appeal to this court from the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that, this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind [the fact] that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular this court is not bound necessarily to follow the trial judge’s findings of fact if it appears that he has clearly failed on some point to take into account particular circumstances or probabilities materially to estimate the evidence.” 13.Likewise in Gitobu Imanyara & 2 Others -vs- Attorney General [2016] eKLR, the Court of Appeal stated as follows:-“An appeal to this court is by way of a retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.” 14.It is not in dispute that the Deceased herein passed away on 22nd July 2007. The names and identities of the beneficiaries of the estate who are the children of the Deceased is also not in controversy. It is common ground that one of the biological children of the Deceased one ‘Margaret Watetu Mwangi’ passed away on 14th May 2021. A copy of her Death Certificate Serial No. 1000578 appears at Page 23 of the record. 15.The extent of the estate left behind by the Deceased is also not in dispute. A copy of a Certificate of official Search dated 25th October 2021 (see Page 25) of the record indicates that the parcel of land known as L.R. Githi/Ithanju/525 is registered to one Kamau Ndoro Mathuku who is the Deceased in this cause. 16.I have perused the summons for Confirmation of grant. The said summons does include the name of the late Margaret Watetu as a child and beneficiary of the estate. 17.In her affidavit of Protest the Protestor averred that the late ‘Margaret Watetu’ married her under the woman to woman system of Marriage. That in January 2016 the late ‘Margaret Watetu’ visited the Protestors parents in their home and paid the required dowry. That after payment of the dowry the Protestor moved with her children to the home of the ‘Margaret’ in Nyeri County and the children were transferred to Thangathi Primary School which was a school close to the home of the late Margaret. 18.The protestor states that she continued to reside with the ‘Late Margaret’ in her home together with her children as a family unit and that the said ‘Margaret’ took care of and provided for the protestor and her family and paid school fees for the children. That the late Margaret attended all family functions with the Protestor. 19.The Protestor complains that she and her children have been omitted as beneficiaries to the estate of the Deceased, yet she was married to the late ‘Margaret’ a daughter of the Deceased. The Protestor now prays that she be allocated a share of the estate and prays that she be added as a co-administrator of the estate to represent her ‘husband’ Margaret Watetu. 20.On their part the Respondents categorically deny that the ‘Late Margaret Watetu’ had married the Protestor under the woman to woman marriage system recognized under Kikuyu Culture. The Respondents state that they never attended any dowry negotiations and never witnessed the payment of any dowry to the family of the Protestor. The Respondents concede that the late Margaret Watetu was indeed a daughter of the Deceased and as such is a beneficiary to the estate. They state that the late Margaret was once married but was chased away from her marital home due to her inability to bear a child. ‘Margaret’ then returned to her father’s home and the Deceased allocated to her a portion of land where she resided until her demise in May 2021. 21.Article 11(1) of the Constitution of Kenya 2010 recognises culture as the foundation of the Nation. This Court ought to recognize and uphold the cultural practices of the various communities in Kenya. 22.Section 3 (3) of the Judicature Act Cap 8 Laws of Kenya provides for the recognition of cultural practices in Kenya as follows:-“The High Court, Court of Appeal and all subordinate courts shall be guided by African customary law in civil cases in which one or more of the parties is subject to it or affected by it, so far as it is applicable and is not repugnant to justice and morality or inconsistent with any written law and shall decide all such cases according to substantial without undue regard to the technicalities of procedure and undue delay.” 23.In order to prove her claim the Appellant needed to prove that the late Margaret did indeed marry her under Kikuyu Cultural norms. The culture of woman to woman marriage is one which is recognized in many of the communities in Kenya and I dare say in Africa. Such unions must be distinguished from the western style lesbian marriages. In an African cultural woman to woman marriage an elderly African woman who had property and who was unable to bear children of her own would approach and marry a younger woman and any children born by that younger woman would be taken to be the children of the older woman. In this way the lineage of the barren woman would remain intact and the children born to the ‘wife’ would inherit any of the properties owned by the older woman. 24.The author Eugene Cotran in ‘The Law of Marriages and Divorce” Vol 1 at Page 117 explained the customary practice of woman to woman marriage among the Nandi community in Kenya as follows:-“Woman To Woman Marriage (kitumchi tolochi) – A woman past the age of child-bearing and who has no sons, may enter into a form of marriage with another woman. This may be done during the lifetime of her husband, but is more usual after his death. Marriage consideration is paid, as in regular marriage and a man from the womans husbands clan has sexual intercourse with the girl in respect of whom marriage consideration has been paid. Any children born to the girl are regarded as the children of the woman who paid marriage consideration and her husband.” 25.In the case of Monica Jesang Katam -vs- Jackson Chepkowny Another [2011] eKLR, Hon. Justice J. B Ojwang (as he then was) cited the work of Regina Smith Oboler in Ethnology Vol 19 Pages 69-88 as follows“A female husband is a woman who pays bride wealth for and thus marries (but does not have sexual intercourse with) another woman. By so doing she becomes the social and legal father of her wife’s children. The basic institution of woman/woman marriage is widespread in African patrilineal societies although the way it functions varies from society to society. In Nandi a female husband should always be a woman of advanced age who has failed to bear a son. The purpose of the union is to provide a male heir.” 26.All this goes to show that woman to woman marriage is a cultural practice recognised by many of the communities in Kenya including the Gikuyu Community. 27.The Appellant had to discharge the legal burden by proving her claim. Section 107 (1) of the Evidence Act provides that:Whoever desires any court to give judgment as to any legal right or liability dependant on the existence of facts which he asserts must prove that those facts exist. 28.The evidential burden of proof is also upon the Appellant. The same is captured in Sections 109 and 112 of the Evidence Act as follows:Section 109: The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of the fact shall lie on any particular person.Section 112: In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving the fact is upon him. 29.These two provisions of law were dealt with in the decision of Anne Wambui Ndiritu -vs- Joseph Kiprono Ropkoi & Another [2005] 1 EA 334 in which the court held as follows:“As a general proposition under Section 107 (1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is case upon any party the burden of proving any particular fact which he desires the court to believe in its existence which is captured in Sections 109 and 112 of the Act.” 30.In order to prove her claim to a share of the estate of the Deceased the Protestor needed to adduce evidence to prove that the late ‘Margaret’ did actually marry her under the customary rites and traditions of the Kikuyu Community. The key elements of a Kikuyu customary marriage would be the ‘Ruracio’ i.e payment of dowry and ‘Ngurario’ ceremony. 31.In Ernest Kinyanjui Kimani v. Muiru Gikanga and Another [1965] E.A. 735 it was held that:- “………..where African customary law is neither notorious nor documented it must be established for the courts guidance by the party intending to rely on it.” 32.In Gituanja v. Gituanja [1983] KLR 575, the court of Appeal held that the existence of a customary marriage is a matter of fact, which must be proved by evidence. The essentials of a Kikuyu customary marriage are described in Eugene Cotran’s “case Book on Kenya Customary Law” at page 30 to be:“1)Capacity: The parties must have capacity to marry and also to marry each other.2)Consent: The parties to the marriage and their respective families must consent.3)Ngurario: No marriage is valid under Kikuyu customary law unless the Ngurario ram is slaughtered.4)Ruracio: There can be no valid marriage under Kikuyu customary law unless a part of the ruracio (dowry) has been paid”.5)Commencement of cohabitation. The moment at which man and woman legally became husband and wife is when the man and woman commence cohabitation.” 33.PW4 Christopher Muchoki was a Kikuyu elder who told the court that he was very well versed in Kikuyu culture and traditions. PW4 confirmed that under Kikuyu customs a childless woman can marry another woman to bear children for her. He narrated that in such a woman to woman union dowry must be paid. PW4 emphasized that Ngurario ceremony which involves the slaughter of a male sheep is central to a Kikuyu customary marriage. 34.In her evidence the Protestor stated that the late ‘Margaret’ took her into her home in the year 2015. That in 2016 they went to visit the Protestors father and ‘Margaret’ indicated her intention to marry the Protestor by giving the Protestors father a token of Kshs. 2,000/=.They collected the Protestors two (2) children and returned with them to Nyeri where they enrolled the children in school. In her testimony the Protestor made no mention of dowry payment or of the Ngurario ceremony. In fact under cross-examination the Protestor states that“Ngurario dowry was not paid.” 35.On the essentials of a valid Kikuyu marriage Cotran in his work stated that“No marriage is valid under Kikuyu Law unless the ngurario ram is slaughtered” and further stated that:-“there can be no valid marriage under Kikuyu Law unless a part of the ruracio has been paid. 36.In this case though part of the ruracio was paid the ngurario ceremony was not conducted. 37.PW2 William Thumbi Chege was the Protestors father. He confirmed to the court that the late Margaret did visit his home and expressed her desire to marry his daughter. That they agreed on a dowry of Kshs.20,000/= and Margret paid half that amount i.e Kshs. 10,000/=. 38.However PW2 also admits that the Ngurario ceremony which is central to a Kikuyu customary union was not conducted. PW2 stated that“We could not slaughter [the] goat because of Covid and going to pick a child from school.” 39.The court takes judicial notice of the Covid pandemic which did indeed cause much disruption in citizens lives and during that period social gatherings were prohibited/restricted. However Covid did not last forever. If the parties intended to finalise the customary rites then they could have done so. The admission by PW2 that no ngurario ceremony was conducted means that the customary marriage was not formalized in accordance with Kikuyu culture. 40.It is pertinent to note that marriages in most African communities involves the entire clan and not just the two parties and their families.In this case strangely enough no family members of the late ‘Margaret’ ever accompanied her to the home of the Protestor. PW4 the Kikuyu elder informed the court that involvement of the clan was a crucial aspect of a Kikuyu marriage. The lack of involvement of ‘Margaret’s clan and/or family is telling and shows that no customary marriage was conducted. 41.The Protestor named two persons who accompanied Margaret in the first visit to the Protestors father namely Wanjiku Kiama and Stephen Mwai. There was no evidence that the two were clan members and secondly none of the named persons testified in court to confirm in what capacity they accompanied Margaret to visit the father of the Protestor. 42.The Protestor produced in court photographs which she relied on as proof of her marriage to ‘Margaret’. These photographs do not amount to proof of a marriage. 43.From the evidence available I do agree with the finding of the trial court that the existence of a Kikuyu customary marriage between the protestor and the late Margaret was not proved on a balance of probability. Thus the basis of the Protestors claim fails. 44.The only other way in wh ich the Protestor could claim a share of the estate of the Deceased is if she was able to demonstrate that she and her children were dependants of the Deceased in terms of Section 29 of the Law of Succession Act. The Protestor told the court that she was fully dependant on Margaret who provided for the family and paid school fees for her children. The Protestor did not produce any evidence e.g school fees receipts to prove this claim. More importantly this succession cause does not relate to the estate of Margaret but rather to the estate of Deceased who is Margaret’s father. The Protestor has not even alleged much less proved that she and her children were dependant upon Kamau Ndoro who is the Deceased in this cause. Therefore she cannot stake a claim to the estate as a dependant. 45.Finally I find no merit in this appeal. The same is dismissed in its entirety. Costs are awarded to the Respondents. DATED IN NYERI THIS 10TH DAY OF JULY 2026.………………………MAUREEN A. ODEROJUDGE