[2004] KEHC 2438 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF THE AT NAIROBI

SUCCESSION CAUSE NO. 1510 OF 2001

IN THE MATTER OF THE ESTATE OF MMK

FNM………………………………………………….APPLICANT

Versus

IWM …………………………………………..RESPONDENT

JUDGMENT

FNM petitioned for the revocation of the grant of Letters of Administration in respect of the Estate of the Late MMK (deceased) who passed away on 14th December 2000. The grant of Letters of Administration was issued by the Principal Magistrate Thika on 28th May 2001 to IWM. According to the objector the grant was obtained fraudulently by making of false statement and concealment from court of facts material to the cause. The objector relied on her supporting affidavits sworn on 28th June 2001 and 5th May 2002 as well as a joint further affidavit sworn by the objector and Stephen Mwangi Kanyatte sworn on 7th August 2002 as well as an affidavit by IWK sworn on 28th June 2001 all in support of the objectors application for revocation.

In addition to the matters deposed in the affidavits the objector relied on evidence from herself and two other witnesses.

According to the objector, she met the deceased in 1995 when they became friends and started cohabiting in Juja – within Thika District from 1997. In November 1998 they were blessed with a son known as BMM and sometimes in 1999 the deceased visited the home of the objector in the company of his step brother LMi who also testified as (O W 3) and has sworn an affidavit in support of the revocation of the grant. During the said visit, the deceased gave Kshs.20,000/= being part of the dowry to the objectors parents. There were no further visits but the objector cohabited with the deceased until when he passed away.

According to the objector, she was also living with the deceased three children after the petitioner deserted the matrimonial home before she started cohabiting with the deceased. The children were living in a different premises. Jogoo Kimakia Flats while the Objector was living with the deceased at Juja. Eventually one of the children LMM he objector and was living with them on a full time basis. The objector had another child known as Gerishon Macharia whom the deceased according to the objector accepted and assumed full responsibilities. During cross-examination the objector confirmed that the 1st child was born on 25th October 1989 when she was having another relationship with somebody called Justus Guthuki Macharia and the child was named according to his father’s father. However the relationship did not last as the objector went back to her parents home. She confirmed that the father of the said child did not denounce him nor were there formal adoption by th deceased over the child.

The objector also relied on the evidence of LMM deceased 2nd born son with the petitioner. He confirmed that his mother and father separated sometimes in 1996 whereby the father was living with the objector in Juja and his other siblings were living at Thika while his own mother lived at Makongeni Estate. According to this witness he recognizes both the objector and her two sons whom he describes as his two step brothers. The objector also relied on the evidence of LM (O W 3) and a brother of the deceased. According to this witness, the objector was brought home by the deceased in 1997 and was duly introduced as the second wife. Subsequently in 1999, this witness accompanied the deceased to the objector’s home and they paid Kshs.20,000/= being introduction fees. They promised to come later and pay the dowry but the deceased fell sick before the dowry could be paid.

It is this witness who introduced the objector to the local administrative chief who issued and introduced the objector as the deceased wife. He confirmed that the objector had one biological son with the deceased called B. Mwangi who was named after their father. He also invited the objector to live in their ancestral home in Muranga after the deceased died and facilitated her into settling into their father’s house since the deceased had not built a house at the rural home.

During cross-examination this witness confirmed that the deceased was also survived by his brother SK (PW 2) who is older than him (witness). The deceased was also survived by an uncle. SK ought to have assumed the leadership role of his family after their father’s death. However SK and the uncle were not involved when the visit to the objector’s home was made. The witness explained that this was due to the fact that the stage for payment of dowry had not been reached.

The petitioner defended her position as the administrator of the deceased estate. In this regard she relied on her replying affidavit and that of the deceased brother SK M sown on 3rd July 2002 in opposition to the application for revocation. In addition to the affidavits the petitioner also called evidence from two witnesses in addition to her own.

The petitioner gave a detailed account of her customary marriage to the deceased. This marriage was never dissolved despite the separation caused by the deceased involvement with the objector. They had their first born child in 1976 and second born in 1978. they started cohabiting in 1976 at first at the deceased rural home in Muranga and subsequently moved to Thika where the deceased was working. It is not necessary to dwell on this customary marriage since it is not disputed at all that the petitioner was married to the deceased through a Kikuyu Customary Marriage and they had the following children:

a) MIM

b) LMM

c) JWM

It is also not disputed that the petitioner separated from the deceased for sometimes prior to the deceased death, and that she was never divorced. The actual date of separation is not ascertainable due to the fact that each witness gave a different date, suffice it to state that as at the time the deceased died he was not staying under the same house with the petitioner. The petitioner confirmed that she opted to live separately in 1999 due to the deceased infidelity and a love affair with the objector. The deceased started running a bar with the objector. According to the petitioner she kept communicating with the deceased who kept denying his association with the objector, the objector was never introduced to her as a co-wife and when the deceased died the objector with the help of the deceased step brother and sister hijacked the funeral programme and death announcement and left out the name of the petitioner as a survivor of the deceased. The petitioner also gave a detailed account of the deceased assets and when they were acquired. Some of the properties were brought in the names of her children. The petitioner also relied on the evidence of SKM, the deceased elder brother. What can be extracted from this witness is that the deceased had only one wife the petitioner. He denied vehemently that the objector was the deceased second wife and that the only survivors of the deceased was the petitioner and her three children. According to him there was no possibility that the deceased could have married without involving him as the eldest son of the family, he was also the secretary of our family meetings and kept all the records of the transactions and marriages. He had never met the objectors family members and it was during the deceased burial he learnt about the objector who was staking her claim as a second wife. He had earlier seen the objector who was working at the deceased Bar and Restaurant and used to serve him with food. He therefore knew the objector as a Bar maid employed by the deceased. Later on in July 2002, the objector was brought home by his step sister one IW and LM and she was installed at their father’s house. The petitioner’s other witness was JK, a gazzetted Registrar of persons. His duties at the National Registration Bureau involves investigations and prosecution of offences relating to the Registration of Persons Act Cap 107. In this respect he had received a request to verify an identity card No. 11724540. According to this witness, the 1st generation card belongs to a John Waithaka while the second generation ID card is held by FNM for one ID card Number to be held by more than one person. He was however not able to get the original documents to establish who should be the legal holder of his identity card. At the moment the identity card Number is shared by two people and it is very uncommon to get an identity card number with two holders. In this regard the identity card produced by the objector is of no evidential value.

The above is the summary of the evidence tendered herein which evidence and pleadings, I have given due consideration in determining whether the grant issued should be revoked on the basis of fraudulent making of a false statement and concealment from court of material facts.

Upon very careful evaluation of the evidence, it is not disputed that for about 3 years prior to the deceased death, he cohabited with the objector at Juja. A couple of months before his demise, the deceased was operating a business of bar and restaurant where the objector was working. According to the petitioner and (PW 1) the objector was employed as a bar maid and had an affair with the deceased that did not amount to a marriage. This particular assertion is challenged by the following undisputed facts:

1) That the deceased was cohabiting with the objector from 1997 as a result of which a child was born.

2) The deceased paid Kshs.20,000/= to the objector’s parents which can be considered as the 1st step in contracting a customary marriage.

3) The deceased brother, sister and son gave evidence in support of the objector.

I have also taken into due consideration that a Kikuyu customary marriage is completed after at least the following steps have been taken.

1) Introduction

2) Payment of dowry

3) Traditional wedding (Ngurario Ceremony) (Refer to Eugene Contran Restatement of Customary Law). I have also taken into cognizance the complexities presented by modern way of life.

Most couples meet in the urban towns and first of all live in a trial marriage popularly referred to as (come we stay) relationship. Most of these couples rarely get an opportunity to complete the customary rites and conform with the traditions but according to them and the common ordinary person they are married. The issue of whether they are married or not arises after the demise of one of them.

In the present case, how was the objector viewed? According to her witnesses she was viewed as a wife and on a balance of probabilities I am satisfied that the objector has been able to prove that she was married to the deceased although the customary rites had not been duly performed. It can be presumed that the deceased intended to complete the marriage. Deceased was married to the petitioner under the Kikuyu customary law of marriage which is potentially polygamous and he had capacity to contract another marriage.

I however find that the objector’s first child Gerison Macharia should not be entitled to inherit from the deceased estate for the following reasons:

1) This child is the son of Justus Gichuki Macharia who has not denounced his right over him

2) The father of this child can be pursued to provide support to his biological child not to mention that the child will also be entitled to inherit from his father.

3) There is no evidence that the deceased had adopted this child.

Accordingly these are the orders of this court.

1) The grant of Letters of Administration issued to the petitioner on 21st May 2002 be and is hereby revoked.

2) A new grant be issued jointly to the petitioner and objector The persons beneficiary entitled to the deceased estate are as follows:

1st House: IWM (1st wife)

MIM

LMM

LMM

2nd House: FNM(2nd wife)

BMM

Each party shall bear their own costs to this litigation.

It is so ordered.

Judgment read and signed on 23rd April 2004

MARTHA KOOME

JUDGE