[2017] KEHC 1891 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT AT KISUMU

SUCCESSION CAUSE NO. 795 OF 2009

IN THE MATTER OF THE ESTATE OF GEORGE OWINO ONYANGO (DECEASED)

BETWEEN

ALICE ACHIENG SIJENY....................................APPLICANT/OBJECTOR

AND

ANTONINE AKOTH OWINO.........................PETITIONER/RESPONDENT

RULING

1. GEORGE OWINO ONYANGO (the deceased) died on 19th March 2009. The petition for letters of administration intestate was filed by his wife and widow Antonine Akoth Owino (“Antonine”). The deceased’s only asset was his gratuity from National Cereals and Produce Board (“NCPB”) estimated to be worth Kshs 300,000/=. In due course, Antonine was issued with a grant of letters of administration intestate on 18th February 2010.

2. Thereafter Alice Achieng’ Sijeny (“Alice”) filed a summons for revocation of grant dated 3rd June 2011. The basis of her claim was that she was a widow of the deceased and that the petitioner had failed to disclose this fact when filing the petition. The objector also filed an application seeking to restrain NCPB from releasing the deceased’s benefits to the petitioner. The injunction was granted on 14th October 2011.

3. The court directed that the application for revocation be heard by viva voce testimony. The matter was first heard by Muchelule J., before I took over the conduct of the matter. The objector testified and called three witnesses while the petitioner testified and called one witness. The issue for determination is whether Alice is the deceased’s wife.

4. Alice testified that she knew the deceased in 2003 while she was in High School in Kisumu. At the time he was working for NCPB as a clerk in Thika. He moved to Muhoroni and then Awasi. She testified that the deceased started falling sick prior to his death and she took care of him until he passed away in the house. She told the court that during the time the deceased was ailing, she did not know where Antonine was but she nevertheless appeared when the deceased died. PW 1 further testified that after he died, his body was taken to his home where he was buried. She explained that even when he was sick, the deceased’s relatives would visit them and at his funeral, she was recognized as his wife. She admitted that the deceased had not built a house for her but was planning to do so. In addition, she testified that she had a child with the deceased by the name Oliver Kahn Owino who was born on 12th December 2004. She produced the birth certificate which was issued on 9th May 2011. When cross-examined she stated that her mother in law paid dowry in 2011 by taking two cows to her parents.

5. The deceased’s mother, Roselida Adhiambo (PW 2) testified that both Antonine and Alice were the deceased’s wives. Although she recalled that the deceased was sick before he died, she could not recall who was taking care of the deceased at the time. When cross-examined she told the court that she took her own cattle to Alice’s parents as dowry.

6. The deceased’s sister, Millicent Atieno (PW 3) testified that Antonine and Alice were the deceased’s wives and while Antonine was not blessed with a child, Alice had a son. She recalled that prior to his death, the deceased was sick and was staying with Alice at Muhoroni. She told the court that Alice attended and spoke at the funeral after being introduced as the deceased’s wife. She confirmed that the deceased had not built a house for Alice. She also accepted that the deceased had a child with Alice. She recalled that before his death, she heard the deceased tell Alice that she should divide the property between herself, Antonine and his mother and that she should not let the child to suffer or abandon his grave. In cross-examination, PW 3 told the court that Antonine knew Alice and that the family had tried to discuss the matter with her but she could not accept Alice as her co-wife.

7. Daniel Okero Orech (PW4), a nephew to the deceased, testified that both Antonine and Alice were the deceased wives and that Alice had a child with the deceased. He had been living with the deceased and Antonine in Bondo then he lived with the deceased and Alice in Awasi in 2009. He further testified that the deceased married Alice in 2008 but he did not pay any dowry and it only when he died that the deceased’s mother took dowry to Alice’s parents. He recalled that he accompanied the deceased’s mother when the dowry, comprising two cows and a goat, was taken to Alice’s parents. He recalled that he was the master of ceremonies at the deceased’s funeral and that Alice attended the funeral and was given an opportunity to address the mourners as the deceased’s second wife.

8. Antonine (DW 1) testified that she married the deceased in 1995 under Luo customary law and that dowry comprising three cows and a goat was paid. She testified that she lived with him in Bondo while he was working at NCPB. She however confirmed that she did not live with the deceased at Awasi. She testified that Alice was a stranger to her and that since she was sitting at the deceased’s coffin during the funeral, she never saw Alice. She categorically stated that Alice neither attended nor spoke at the funeral. She maintained that Alice was not the deceased’s wife as the deceased had not built for her a house. She also told the court that the deceased could not have a child because he had been undergoing medical treatment in 2001 and was later found incapable of fathering any children. When cross-examined, Antonine insisted that the Alice was a stranger to her and that the deceased never told her that he had another wife during his lifetime. She told the court that when the deceased was sick prior to his death, she was also bedridden so she was not with him.

9. James Onyango Omollo (DW 2) testified that he was a village elder. He knew the deceased and Antonine was his only wife and that the deceased did not have any other wife during his lifetime. He stated recalled that he attended the deceased’s funeral and spoke on behalf of the administration. He did not see Alice at the funeral sitting beside the deceased’s coffin as the deceased’s wife was required to. He told the court that neither Alice nor her child was ever introduced at the funeral and that as a member of the family he would have been present had dowry been paid for Alice.

10. There is no dispute that Antonine is the deceased’s wife. The issue for determination is whether the Alice is the deceased’s wife and therefore entitled not only to administer the estate but also benefit from it with her son. Alice bears the burden of proving that she is a wife on the balance of probabilities.

11. It is well established that proof of customary law is a question of fact proved by evidence, including testimony of experts (see Gituanja v Gituanja [1983] KLR 575 and Eliud Maina Mwangi v Margaret Wanjiru GachangiCA NRB Civil Appeal No. 281(A) of 2003 [2013]eKLR). As to whether there was customary marriage between Alice and the deceased, it clear that Alice and the deceased did not undergo any ceremony of marriage contemplated under Luo customary law hence the basis of the relationship between them cannot be founded on customary law.

12. Even if a customary marriage is not established, the court may well find that the parties cohabited for a period time and conducted themselves in such a manner that a marriage could be presumed. In Hortensiah Wanjiku Yawe v Public Trustee CA Civil Appeal No.13 of 1976 (UR) the Court of Appeal for East Africa held that a long period of cohabitation as man and wife may give rise to a presumption of marriage in favour of the party asserting it. Mustafa JA., held as follows:

I find nothing in the Restatement of African Law to suggest that Kikuyu customary law is opposed to the concept of presumption of marriage arising out of long cohabitation. In my view, all marriages in whatever form they take, civil or customary or religious, are basically similar, with the usual attributes and incidents attaching to them. I do not see why the concept of presumption of marriage in favour of the appellant in this case, should not apply just because she was married according to Kikuyu customary law. It is a concept that is beneficial to the institution of marriage to the status of the parties involved and to the issue of their union, and in my view, is applicable to all marriages, however celebrated. The evidence concerning cohabitation was adduced at the hearing and formed part of the issue concerning the fact of marriage ...

13. In Mary Wanjiku Githatu v Esther Wanjiru Kiarie [2010] eKLR,Bosire JA., summarized the position thus:

The existence or otherwise of a marriage is a question of fact. Likewise, whether a marriage can be presumed is a question of fact. It is not dependent on any system of law except where by reason of a written law it is excluded. For instance, a marriage cannot be presumed in favour of any party in a relationship in which one of them is married under statute. However, in circumstances where parties do not lack capacity to marry, a marriage may be presumed if the facts and circumstances show the parties by a long cohabitation or other circumstances evinced an intention of living together as husband and wife.

14. In my view, there is ample evidence to support the case that Alice and deceased were married. I accept Alice’s evidence that they met in 2003 and started cohabiting together. That relationship resulted in the birth of a son in 2004. The fact that the Alice and the deceased were living together is confirmed by PW 2, PW 3 and PW 4.

15. In her testimony, Antonine stated the deceased had been undergoing treatment for impotence and it was confirmed that he could not bear any children. This evidence does not prove that the deceased could not have children. Antonine did not call necessary evidence to support the fact that the deceased was suffering from a known and recognised medical condition that would make him impotent. To support the fact that the child was fathered by the deceased, Alice produced the birth certificate which confirmed that the deceased was the child’s father. It was suggested in cross-examination that since certificate was obtained after the commencement of these proceedings, it was merely obtained for the purpose of these proceedings. I reject this suggestion since a birth certificate is a public document and prima facie evidence of the facts contained therein. Since the certificate was not challenged, I accept its contents. I also hold that a birth certificate, being a certificate of registration of birth may be issued at any time provided the registrar is duly satisfied the applicant requirements for registration have been met. The fact that it was issue several years after birth does not invalidate it contents.

16. Antonine’s testimony was mainly confined to denying that Alice was the deceased’s wife. I would have expected that she would have given a fuller account of her life with the deceased. She admitted that she did not live with the deceased in Awasi in his twilight days which the time he was living with Alice. Likewise, DW 2 could not give an account of the deceased’s life as he did not live with him. In my view, Antonine could not bring herself to accept that the deceased had another wife.

17. The totality of the evidence in favour of Alice is that she was cohabiting with the deceased upto the time he died, she had a son with him and the deceased’s family accepted her as his wife. The fact that the deceased did not build for Alice a house at his rural home does not diminish the quality of their relationship as they were living together as man and wife and were accepted as such by his family.

18. I therefore find and hold that Alice is the deceased wife and Otto Kahn Onyango his son. I accordingly revoke the grant issued to Antonine and re-issue the grant to both Alice and Antonine. Since the only asset is the deceased’s gratuity, I will proceed to confirm the grant taking into account that the fact that the deceased is survived by a young son who is being taken care of by his mother. I shall therefore share the gratuity in the following proportions; Antonine Akoth Owino (30%), Alice Achieng Sijeny (60%) and Roselida Adhiambo (10%).

19. In view of the foregoing, I now make the following final order:

(i) The grant of letters of administration intestate issued to Antonine Akoth Owino is hereby revoked and a fresh grant is issued to Antonine Akoth Owino and Alice Achieng’ Sijeny.

(ii) The grant is confirmed and the deceased’s gratuity at the National Cereals and Produce Board is to be shared as follows;

a) Antonine Akoth Owino 30%

b) Alice Achieng Sijeny 60%

c) Roselida Adhiambo 10%

(iii) Each party to bear their own costs.

DATED and DELIVERED at KISUMU this 9th day of November 2017

D. S. MAJANJA

JUDGE

Mr Ingosi, instructed by A. G. Aburili and Company Advocates for the petitioner.

Mr Ayuko instructed by Amos Ayuko and Company Advocates for the respondent.