[2014] KEHC 5421 (KLR)

[2014] KEHC 5421 (KLR)

The court found that the Objector was married to the deceased under Kamba Customary Law and was never formally divorced. The Petitioner failed to prove that a valid customary divorce took place, and even if such rites occurred, they would not be recognized under the Matrimonial Causes Act, which requires court...

Source-derived case information.

Citation
[2014] KEHC 5421 (KLR)
Parties
Petitioner: Georgina Mwende Mutunga; Objector: Francisca Munini Mbithe
Court
High Court
Court Station
High Court at Nairobi (Milimani Commercial Courts)
Jurisdiction
Kenya
Judgment Date
22 April 2014
Case Number
Succession Cause 2548 of 2002
Procedural Posture
Succession Cause / Judgment
Outcome
Grant to Petitioner revoked; new joint grant to Petitioner and Objector; estate to be distributed equally among Petitioner, Objector, and deceased's mother.
Legal Topics
Succession, Customary Marriage, Dependants, Revocation of Grant, Distribution of Estate
Source Language
english
Family and Children Civil Procedure Succession Customary Marriage Dependants Revocation of Grant Distribution of Estate

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Parties

Georgina Mwende Mutunga

Petitioner

Francisca Munini Mbithe

Objector

Procedural Posture

Succession Cause / Judgment

Legal Issues

  1. 1 Whether the Objector was married to the deceased at the time of his death and should be considered a dependant under Section 29 of the Law of Succession Act.
  2. 2 Whether the Petitioner obtained the grant by concealing the existence of another wife.
  3. 3 Whether the conversion of a customary marriage to a statutory one gives a higher marital status over a customary wife.

Ratio Decidendi

The court found that the Objector was married to the deceased under Kamba Customary Law and was never formally divorced. The Petitioner failed to prove that a valid customary divorce took place, and even if such rites occurred, they would not be recognized under the Matrimonial Causes Act, which requires court dissolution of marriages. The conversion of the Petitioner’s marriage to a statutory one did not extinguish the Objector’s status as a wife for succession purposes, as Section 3(5) of the Law of Succession Act recognizes wives from polygamous systems even where a monogamous marriage follows. The Petitioner obtained the grant by concealing the existence of another wife, constituting...

Court Disposition

Grant to Petitioner revoked; new joint grant to Petitioner and Objector; estate to be distributed equally among Petitioner, Objector, and deceased's mother.

Orders

  • The grant issued to the Petitioner on 4th December 2002 is revoked.
  • A new grant shall be issued to Georgina Mwende Mutunga and Francisca Munini Mbithe jointly.