[2017] KEHC 1026 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

SUCCESSION CAUSE NO. 612 OF 2015

IN THE MATTER OF THE ESTATE OF MATHEW KIMANI KIMANGA

(DECEASED)

GRACE WANJIKU KIMANI…………………1ST APPLICANT

CAROLINE WANGARE KIMANI…………..2ND APPLICANT

LAWRENCE KIMANGA KIMANI…………..3RD APPLICANT

VERSUS

PETER KIMANGA KIMANI……………..1ST RESPONDENT

KELVIN MWANGI KIMANI......................2NDRESPONDENT

JUDGMENT

The deceased died on 4th October, 2012 as evidenced by the death certificate of serial number 307821 attached marked GWK3.

This matter was first filed in the Chief Magistrate’s Court at Thika vide Succession Cause no. 25 of 2014. Therein, Peter Kimanga Kimani and Kelvin Mwangi Kimani petitioned for grant of letters of administration intestate which was gazetted as notice number 52 of 2014.

On 30th September, 2014 the Applicants appointed the firm of Mathenge Gitonga and Co. Advocates who objected to the grant of letters of administration intestate. The letter from the chief of Gatundu, Kimuyu dated 18th December 2012 which was filed at the Chief Magistrate's Court on 23rd January 2014 listed the following as persons surviving the deceased:

1. Jane Nduta Kimani-widow

2. Peter Kimanga Kimani-son

3. Kelvin Mwangi Kimani-son

4. Joan Wanjiku Kimani-daughter

5. Kennedy Waiganjo Kimani-son.

However, a letter from the Chief of Lemelepo Location, Kiserian dated 24th January, 2013 indicated that the persons surviving the deceased are:

1. Grace Wanjiku Kimani

2. Caroline Wangare Kimani

3. Lawrence Kimanga Kimani

The Chief Magistrate’s Court, despite evidence of the existence of the Applicants, issued a grant of letters of administration intestate to Peter Kimanga Kimani and Kelvin Mwangi Kimani as the administrators of the deceased’s estate. The property of the deceased was therein listed and distributed as follows:

1)115 shares with Standard Chartered Bank Kenya Ltd. Vide share account no. [particulars withheld]to be shared equally by Peter Kimanga Kimani and Kelvin Mwangi Kimani.

2)Retirement benefits with Pensions department National Treasry to be distributed solely to Jane Nduta Kimani.

3)Bequest to the deceased from the will of Peter Kimanga Waiganjo dated 26TH July 2013 of I.R. No. 209/4931/19 Sedbury Close Nairobi and Plot no. 209/6580 New Charles Road Nairobi to be held in trustby the Administrators for Joan Wanjiru Kimani, Kennedy Waiganjo Kimani and Jane Nduta Kimani.

4)Bequest to the deceased from the will of Peter Kimanga Waiganjo dated 26TH July 2013 of rents and dividends derived from the following:

a)I.R No. 209/4590 KoroboMunjiri Newark(Nairobi)

b)L.R.No. 17/16 KitusuruPeponi Road (Nairobi)

c)L.R.No 209/2763/15 Virjee Lane (Nairobi)

d)L.R.No 209/6379 off Ojugo NB. (Jerusalem)

e)Dividends from Kimanga Investmentare to be shared among the Administrators:

5)Bequest to the deceased from the will of Peter Kimanga Waiganjo dated 26TH July 2013 of portions from Ngenda/Kimungu/476, 1134, 1144, 1145 are to be held in trust by the Administrators for Joan Wanjiru Kimani, Kennedy Waiganjo Kimani and Jane Nduta Kimani.

6)Ngenda Kahunguini 879 and Kiganjo/ Handege/ 781 to be held by the administrators in trust for Joan Wanjiru Kimani, Kennedy Waiganjo Kimani and Jane Nduta Kimani

A consent to the mode of distribution as proposed in the Affidavit of the Respondents was signed by Jane Nduta Kimani and dated 9th July, 2015. The said grant of letters of administration was confirmed on 9th July, 2015.

Thereafter the Applicants filed Summons for Revocation of the said Grant on 6th April, 2016 on the grounds of fraud, making of false statements and concealment of material facts. They also sought orders to preserve the estate of the deceased pending the determination of the Summons for Revocation of Grant.

HEARING

On 20th September, 2016 PW1 Grace Wanjiku Kimani testified that she lived with the deceased since 1991 upto his death in 2012 and they lived together in Mombasa and relocated to Nairobi in 2004. She was married under customary law and the deceased visited her home with his late brother and 2 friends from Mombasa. The deceased swore an affidavit that he married her.

They had 2 children Caroline Wangare Kimani PW2 and Lawrence Kimanga Kimani PW3. She produced their birth certificates in Court as exhibits. While they lived in Nairobi, deceased visited his other family in Gatundu the Respondents herein.

The deceased begun ailing in 2005, 2008-2009 his health deteriorated and he was admitted in and out of hospital. She informed his brother Harrison Gichuki. Towards the end, the deceased was admitted in Metropolitan Hospital after he had a stroke. He was transferred to Nairobi West and finally Kenyatta Hospital and he passed on. All this time, she took care of the deceased.

During the funeral, she and her children were involved, they were recognized in the deceased's obituary produced as Exhibit 6 and there were photographs marked 1-5 Exhibit 7. The Applicant stated that she came to Court as she was sent away from the deceased's home. The deceased had a business they ran together in Gikomba where they built 7houses and drew rent from the said houses. The Deceased was also bequeathed property by his late father in Succession Cause 3136 of 2013 Thika law Courts. She and her children have been deprived of any share of the deceased's estate and it is the basis of her application in Court to have the grant revoked.

PW2 and PW3 testified on 15th March 2017 that they are children of the deceased, they were born and lived with the deceased and PW1 in Mombasa as family. When they came to Nairobi, their father told them of another family took them to Gatundu and they met their step brothers. Their mother (of the step family) was not in she left the country with Joan Wanjiku and Kennedy Waiganjo. Thereafter, their father begun to fall sick 2005, he was in hospital in and out until his death. PW3 informed Court that he left school and helped his mother to take care of his father. They attended and participated in their father's funeral as shown by the Eulogy and Photographs produced by PW1.

The Respondents despite service did not attend Court except for their respective Counsel who were present during hearing of PW1 but on 15th March 2017 they did not attend Court despite service of hearing Notice as per Affidavit of Service filed in Court on 15th March 2017.

ISSUES

1. Did the Chief Magistrate’s Court at Thika where the matter was first heard vide Succession Cause no. 25 of 2014 have Jurisdiction to hear and determine the matter?

2. Does Jane Nduta Kimani qualify as a widow to the deceased?

3. Is there a Kikuyu Customary marriage between the deceased and the first Applicant?

4. Was the grant of letters of administration obtained fraudulently and or through concealment of material facts?

5. If so, did the lower err in confirming the said grant of letters of administration of 11th September, 2014?

DETERMINATION

As to the issue of jurisdiction, Rule 7(3) of the Probate and Administration Rules provides:

“…the petition may be filed in the principal registryor a High Court district registryor, in the case of a deceased the gross value of whose estate does not exceed one hundred thousand shillings, in a resident magistrate’s registry or, in the case of an application to the Resident Magistrate’s Court under section 49 of the Act, in a resident magistrate’s registry within the area of that court in which the deceased had his last known place of residence...”

Section 49 of the Law of Succession Act CAP 160 Laws of Kenya confers territorial jurisdiction to the resident magistrate within whose area a deceased person had his last known place of residence if the gross value of the estate of the deceased does not exceed one hundred thousand shillings at the time the grant was confirmed in 2015. Today, Magistrates' Court Act No 26 of 2015 (date of assent 15th December 2015 date to take effect 16th January 2016) enhanced pecuniary jurisdiction of the Chief Magistrates' Court to Ksh 20 million. At the time the Magistrates' Court lacked pecuniary jurisdiction and the estate of the deceased exceeds Ksh 100,000/-.

Upon careful examination of the Certificate of Confirmation of Grant dated 9th November, 2015 and the will of Peter Kimanga Waiganjo dated 26TH July 2013, this court finds that the property left by the deceased persons in both estates exceeded one hundred thousand Kenya shillings. Therefore the lower court had no jurisdiction to hear and determine the said succession petition. Pecuniary and territorial jurisdiction in succession matters is strictly as provided in the Law of Succession Act and the Probate and Administration Rules.

From the pleadings, it is clear that Jane Nduta Kimani was the wife of the deceased as per the marriage certificate of serial number 034858 attached and marked as exhibit PKK1 which indicates that the marriage was contracted on 12th December 1998. She filed Divorce Cause no. 20 of 2006 wherein she sought orders of dissolution of her marriage to the deceased. A copy of the petition is filed and marked EX3. However, there is no Decree Nisi nor Decree Absolute filed to confirm that the marriage was dissolved. Further, the First Respondent in his Replying Affidavit to the Application for revocation of Grant averred that the said divorce petition abated upon the death of the deceased.

On the other hand, Grace Wanjiku Kimani lived with the deceased during his lifetime, as his wife. Exhibits 5 and 6, an Affidavit sworn by the first Applicant and the deceased and the Identity card of the first Applicant respectively were filed as proof of her Marriage to the deceased in the year 1992. The first Applicant maintains that she was married to the deceased under Kikuyu Customary law. The Applicants were recognized in the newspaper death and funeral announcement marked EX6 as the family of the deceased. They were also recognized in the Eulogy as the deceased’s family. The eulogy recognized them as family of the deceased and photographs of the deceased's funeral and included the Applicants as deceased's family were produced in Court as exhibits.

Peter Kimanga Kimani averred in his Replying Affidavit dated 4th May 2016 that he was one of the Administrators of the deceased's estate and that he is aware of the Summons for Revocation of Grant. He had no knowledge of the customary marriage of the deceased to the 1st Applicant. The deceased married his mother Jane Nduta Kimani under customary Law in the year 1987 which marriage subsequently solemnized as a Christian Marriage under CAP 151 Laws of Kenya (repealed). The said Divorce Cause no. 20 of 2006 alluded to abated upon the death of the deceased. He denied deliberately concealing facts. He also replied to the issue of pecuniary jurisdiction of the Resident Magistrate’s court and averred that the 115 shares in the Standard Chartered Bank Limited are valued at Kshs. 100,000/-.

The deceased contracted a marriage to Jane Nduta Kimani under the African Christian Marriage and Divorce Act. This marriage broke down and a divorce petition thereto was filed as above discussed. The marriage was not dissolved. Even if they had divorced, she would qualify as a dependant according to Section 29 (a) of the Law of Succession Act,which defines a dependant as:

“the wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death”

For this reason, Jane Nduta Kimani is a widow to the deceased.

As to the issue of whether there exists a Kikuyu Customary Marriage between the deceased and the first Applicant this court considered Section 3 (5)of theLaw of Succession Act CAP 160 Laws of Kenyawhich provides:

"Notwithstanding the provisions of any other written law, a woman married under a system of law which permits polygamy is, where her husband has contracted a previous or subsequent monogamous marriage to another woman, nevertheless a wife for the purposes of this Act and in particular section 29 and section 40 thereof and her children are accordingly children within the meaning of this Act."

In connection to this provision, Rule 64 of the Probate and Administration Rules makes provision for the application of African Customary Law in the following terms:

“Where during the hearing of any cause or matter any party desires to provide evidence as to the application or effect of African customary law he may do so by the production of oral evidence or by reference to any recognized treatise or other publication dealing with the subject, notwithstanding that the author or writer thereof shall be living and shall not be available for cross- examination.”

This being the case, the first Applicant had ample opportunity to prove that there was indeed a Kikuyu customary marriage contracted between her and the deceased. In this regard she failed to do so. She did not bring any evidence of any other person who attended the ceremony as alleged or any documentary evidence to the same effect.

The essentials of a valid Kikuyu customary marriage are summarized in Eugene Contran’s case book on Kenya Customary Lawas:-

(a) capacity to marry

(b) consent ( as between the parties and their families)

(c) Ngurario

(d) Ruracio

The Ngurarioceremony is what seals a marriage and there can be no valid marriage under Kikuyu customary law without the Ngurario(slaughtering of a ram).

Going by the sentiments of Hon. Nyamu JA in the case of Mary Wanjiru Githatu VS Esther Wanjiru Kiarie(Court of Appeal at Eldoret in Civil Appeal No. 20 of 2009) where in his dissenting judgment he stated:-

“It is important to observe that customary law marriages have some important ingredients without which they cannot possibly qualify as such. The ingredients are essentials in the making of a customary law marriage. A customary law marriage is a covenant of marriage sealed by the necessary customary ingredients and for the Kikuyu these ingredients are well known and documented. If the courts were to fail to take this into account, they would be giving recognition to the ‘come we stay’ marriages which are neither customary nor statutory”.

The Applicant’s alleged marriage to the deceased was neither customary nor statutory. However this court considers the locusclassicus case of Hortensia Wanjiku Yawe vs Public Trustee (Civil Appeal No. 13 of 1976)wherein Mustafa JA stated

“I can find nothing in the Restatement of African law to suggest that the Kikuyu customary law is opposed to the concept of presumption of marriage arising from long cohabitation. In my view all marriages in whatever form they take, civil or customary or religious are basically similar, with the usual attribute and incidents attaching to them.”

Wambuzi P. (JA) in the same case stated that the presumption is nothing more than an assumption that the parties must be married irrespective of the nature of the marriage actually contracted.

Further this court agrees with Justice W. Karanja in Nderitu Ndirangu v Patrick Mwago Wanjau [2011] eKLR where she opined that

“The express intention by the defendant and the deceased herein to marry coupled with the long cohabitation and the naming of children under kikuyu customary law amounts to more than a “come we stay” relationship. A presumption of marriage can aptly be made in these circumstances. It would be a travesty of justice for the court to fail to make a presumption of marriage from the circumstances herein and thus render the children of the deceased illegitimate while they have lived with and known all along that the Defendant/Respondent was their father. This would be subjecting them to degrading and discriminatory treatment. It would be against their best interests which the courts by law are commanded to prioritize, respect and enforce.”

In Phyllis Njoki Karanja V Rosemary Mueni Karanja and Another (2009) eKLR it was held that;

“…before a presumption of marriage can arise a party needs to establish long cohabitation and acts of general repute. Long cohabitation is not mere friendship or that the woman is not a mere concubine but that the long cohabitation has crystallized into a marriage and it is safe to presume the existence of a marriage…”

Therefore two elements must be proven:

I. Prolonged cohabitation

II. That both parties held themselves out to the general public as a married couple.

In this matter the circumstances are that the deceased resided with the Applicants as his family from 1991 - 2012 over 10 years. The deceased and 1st Applicant are parents of their children DW2 & DW3, birth certificates were produced as exhibits and this fact was not controverted. The second and third Applicants by their testimonies grew up all their lives with the deceased their father. He told them in 2005 of his other family, the Respondents and took them to meet their step brothers and sisters in 2005. After the deceased fell ill, PW3 left school to help his mother PW 1. The 1st Applicant and her children took care of the deceased from 2005 - 2012 as he was admitted in various hospitals and they were with the deceased upto his death. The Applicants were recognized as family of the deceased and they participated in the funeral of the deceased as shown by Eulogy and photographs.

For the purposes of this succession process and in light of the above circumstances disclosed by the evidence on record, this Court presumes a marriage between the 1st Applicant and the deceased. Therefore the property of the deceased should have been divided according to Section 40 (1) and (2) of Law of Succession Act.

The other issue to be determined is whether the Respondents acquired the confirmation of Grant by concealing material facts or fraud. The Applicants are put to strict proof in their allegation of fraud and there is no evidence on the allegation of fraud from the evidence on record. The administrators of the deceased's estate, who are sons of the deceased of his wife and widow Jane Nduta Kimani, did not include the family of the 1st Applicant but the 1st administrator stated that he did not know that his father and the 1st Applicant were married and this fact was not controverted. Therefore in the absence of such evidence, their allegation of fraud fails.

However it is clear that the Respondents failed to give full particulars under Rule 7 of the Probate and Administration Rules which provides that in order for a court to consider granting letters of administration intestate or otherwise a grant of probate it has to be satisfied that the Petitioner made the Application in the appropriate form supported by an affidavit in one of Forms 3 to 6 as appropriate containing, so far as they may be within the knowledge of the applicant, the following particulars -

(b) the date and place of his death, his last known place of residence, and his domicile at date of death;

(d) a full inventory of all his assets and liabilities at the date of his death (including such, if any, as may have arisen or become known since that date) together with an estimate of the value of his assets movable and immovable and his liabilities;

(e) in cases of total or partial intestacy -

(i) the names, addresses, marital state and description of all surviving spouses and children of the deceased, or, where the deceased left no surviving spouse or child, like particulars of such person or persons who would succeed in accordance with section 39 (1) of the Act;

Thereafter the court may confirm the Grant as per Section 71 of the Law of Succession Act.

It is clear that the Respondents/ Administrators obtained the said the grant of letters of administration intestate by concealing the fact that there existed a second house and that their father, the deceased was not residing with them nor had he been residing with their mother prior to his death. The deceased had introduced the 2 children and they met the administrators in 2005 when the deceased took the children to Gatundu to meet their step siblings. In fact, viva voce evidence in open court revealed that the first Applicant lived with the deceased at her home and she took care of him when he was ailing, prior to his death. The second and third Applicants are children of the deceased and despite recognition as such by the extended family of the deceased during the deceased's funeral and having resided with and were raised by the deceased since they were born, the Respondents left out their details when obtaining the said grant of letter s of administration. This amounts to concealment of material facts and is enough ground for revocation of the said grant.

HALSBURY’S LAWS OF ENGLAND 3RD EDITION VOL. 19 PAR 1323 says: “Presumption from cohabitation where a man and woman have cohabited for such a length of time and in such circumstances as to have acquired the reputation of being man and wife, a lawful marriage between them will generally be presumed, though there may be no positive evidence of any marriage having taken place and the presumption can only be rebutted only by strong and weighty evidence to the contrary”.

In re estate of Mark Kale Wafula (Deceased) [2017] eKLRHon. Justice R. E. OUGOheld;

“…The objector and deceased had cohabited prior to his unfortunate demise. The two had invested jointly in real assets as evidenced by the registration of title documents in both their names. From the deceased’s conduct it is clear that his relationship with the objector was not merely casual but appears he had set goals for future with the objector unfortunately his life was abruptly cut short…I find that the conduct of the parties towards each other and their outlook towards the future by investing together and even having a child to nurture together it is clear that the two intended their relationship to last for a long period of time and were saving and investing towards that before the deceased met his unfortunate end...”

This Court noted from the Court file annexed to the 1st Applicant's application copy of Objection to making grant filed in Succession Cause 25 of 2014 and stamped with the Chief Magistrate Court - Thika Law Courtsstamp which seemingly was not presented by design or default before the Trial Court to consider before issuing grant and confirming the grant.

On the evidence before this court, the protestor and the deceased had children of their union. They lived in their home together as husband and wife. Evidence adduced before this court shows that the two had plans to formalize their marriage. No evidence has been provided in proof that the two did not live together as a married couple. This was not a mere come we stay relationship. The Protestor is therefore presumed a wife of the deceased for purposes of this succession.

DISPOSITION

1. The grant of letters of administration confirmed on 9th July, 2015 is hereby revoked according to Section 76(b) of the Law of Succession Act CAP 160 Laws of Kenya.

2. The new/fresh grant be issued to the following administrators;

a) Peter Kimanga

b) Kelvin Mwangi

c) Lawrence Kimanga

3. The administrators jointly to consult all beneficiaries of both families and obtain their consents file summons for confirmation

4. In default of any of the parties being aggrieved or not in agreement to file Protest to be heard and determined by the Court.

5. This being a family matter there are no orders as to costs.

6. Parties are at liberty to apply.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 10TH DAY OF NOVEMBER, 2017.

M.W MUIGAI

JUDGE

IN PRESENCE OF:-

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