[2025] KEHC 174 (KLR)

In re Estate of Alfayo Mwendwa Enoka alias Alfayo Mwendwa (Deceased) (Succession Cause E129 of 2021) [2025] KEHC 174 (KLR) (16 January 2025) (Ruling)

Neutral citation: [2025] KEHC 174 (KLR)

Republic of Kenya

In the High Court at Nakuru

Succession Cause E129 of 2021

HM Nyaga, J

January 16, 2025

IN THE MATTER OF ESTATE OF ALFAYO MWENDWA ENOKA alias ALFAYO MWENDWA (DECEASED)

Between

Rachel Miloyo Mudinyu

1st Applicant

Harriet Kasira Mudinyu

2nd Applicant

Peddy Ngide Mudinyu

3rd Applicant

and

Ossala Mwendwa

1st Respondent

Edward Mwendwa

2nd Respondent

Kaleb Mwendwa Adamba

3rd Respondent

Ruling

1. The Application coming up for determination is the summons for annulment of grant herein, dated 22nd February 2023.

Background 2. The deceased herein died on 5th February 2020 at Nakuru. Subsequently, the Respondents petitioned for a grant of letters of administration intestate on 18th November 2021. The Petitioners disclosed the following to be the persons who survived the deceased;a.Lydia Muhonja – Daughterb.Ossalla Mwendwa – Sonc.Dominic Mwendwa – sond.Edward Mwendwa – Sone.Kaleb Mwendwa Adamba – sonf.Estate of Joseph A Mwendwa – Deceasedg.Gilphine K Muchinyi – Daughter.

3. On 28th February 2022, this court issued a grant of letters of administration intestate. Subsequently vide the summons dated 25th October 2022, the Administrators moved the court to have the grant confirmed and on 26th January 2023, the grant was confirmed and a certificate of confirmation of grant was issued.

The Application 4. The Application is brought under Section 76 of the Law of Succession Act.

5. In a nutshell, the applicants states that the grant herein was obtained through proceedings that were defective, by concealment of material facts and by exclusion of other beneficiaries.

6. The first Applicant states that she met the deceased in 1980 while both were working in Iten. That the deceased had been previously married to Phanice Ayuma and Victoria Musisa and they had children. That the deceased had separated from Phanice in 1966 and then got married to Victoria. That when she met the deceased, she already had 3 children namely Nelly Kangahi Mudinyu, Martha Ngunyuyu and Harriet Kasira Mudinyu. That her union with the deceased bore one child, Peggy Nginde Mudinyu. That all along, it was the deceased taking care of the said children, including payment of school for and other expenses.

7. The 1st Applicant further states that after she retired from public service, she settled in Ngata, Nakuru. That the deceased would come to stay with her, even though he had a house at Nakuru Town and another in Njoro. That when the deceased fell ill in 2015, Ossalla, the first respondent, requested her to relocate and live with the deceased, to which are obliged and she stayed with the deceased until his demise.

8. The Applicant further states that her daughter with the deceased, Peggy was living in the deceased’s house at Nakuru and has been threatened with eviction.

9. The 1st Applicant further states that she had filed a citation vide succession Misc. Application No. 116 of 2022 and served the 1st Respondent only to learn later that he had taken out Letters of Administration herein without informing her.

10. The 1st Applicants prayer is that her youngest children, Harriet and Peggy be included as beneficiaries and/or Co-administrators of the deceased’s estate.

11. In response, the 2nd Respondent filed a replying affidavit sworn on 3rd March 2023. In summary, he avers that the deceased was not married to the 1st Applicant as alleged. That when their father’s health deteriorated, the family opted to have a caregiver and on that basis the 1st Applicant was engaged. That at first, the 1st Applicant would commute from her house, but later it became necessary for her to stay in the deceased’s house at Nakuru. That during the deceased’s burial, the 1st applicant was present but at no time did she claim to be the deceased’s wife.

12. The Respondents further aver that even if the deceased supported the 1st Applicants children, this did not translate into a marriage. That the death certificate that the 1st Applicant had is forged as it is not a copy of the genuine one that was issued to the family.

13. It is further deponed that all the deceased’s assets were acquired in the 1980’s and the applicants cannot be heard to say that they were dependent on him as he was quite old. That during his lifetime, the deceased never mentioned any of the Applicants as his dependants.

14. The respondents further aver that Peggy’s birth certificate, which was used in 2010, was specifically prepared to lodge the false claims herein. That Peggy lived in the Nakuru House only because the 1st Applicant requested the 1st Respondent to allow her as they organized for the security of the said house. That thereafter Peggy was asked to vacate to facilitate renovations but she refused. That the local administration/chief do not know the applicants to have been members of the family.

15. When the matter came up for directions, the parties opted to file submissions rather than give viva voce evidence. They sought to rely on the statements filed herein. I will not rehash the submissions but will, where necessary, refer to them.

Analysis and determination 16. Section 76 of the Act lays down the grounds upon which a grant maybe annulled or revoked. It states as follows:“A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion—(a)that the proceedings to obtain the grant were defective in substance;(b)that the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case;(c)that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently;(d)that the person to whom the grant was made has failed, after due notice and without reasonable cause either—(i)to apply for confirmation of the grant within one year from the date thereof, or such longer period as the court order or allow; or(ii)to proceed diligently with the administration of the estate; or(iii)to produce to the court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraphs (e) and (g) of section 83 or has produced any such inventory or account which is false in any material particular; or(e)that the grant has become useless and inoperative through subsequent circumstances.”

17. If I get the Applicants correctly, they have come to this court with a three pronged approach, namely:-a.That the 1st Applicant was a wife of the deceased for purposes of the Act.b.That Peggy is a biological child of the deceased, hence entitled to a share of the estate.c.That Harriet although not a biological child of the deceased, was brought up and maintained by the deceased.

18. I will address each issue sequentially.

19. The first applicants’ case is that she was married to the Deceased since 1980. Now the 1st Applicant does not state under which law she got married to the deceased. Evidently, the alleged marriage could not have been under any of statutes as no documentation has been provided to prove this.

20. Neither does the first applicant cite any customary law for the basis of her claim. It was upon her to have proven that indeed she was married to the deceased under a particular customary law. That burden was not discharged by the 1st Applicant.

21. Is there a ground to presume a marriage between the 1st Applicant and the deceased?

22. From the evidence in her affidavit, the 1st Applicant had her own home, while the deceased had two homes within Nakuru. It appears like the parties did not cohabit as would be expected of a couple that held itself out to the world as being married. There has to be something more than just a relationship, that would provide the court with a ground to determine that indeed, the parties carried themselves out as being married.

23. I entirely agree with the decision in Mary Njoki vs John Kinyanjui and others [1984] eKLR where the court was emphatic on the threshold to be met for a relationship to be presumed to be a marriage. The court held as follows:-“The presumption does not depend on the law of systems of marriage. The presumption simply is an assumption based on very long cohabitation and repute that the parties are husband and wife.In my judgment, before a presumption of marriage can arise, a party needs to establish long cohabitation and acts showing general repute. If the woman bears a child or better still children, so that the man could not be heard to say that he is not the father of the children, that would be a factor very much in favour of presumption of marriage. Also, if say, the two acquired valuable property together and consequently had jointly to repay a loan over a long period, that would be just what a husband and wife do and so it would be unreasonable to regard the particular man and woman differently. Performance of some ceremony of marriage would be strong evidence of the general repute that the parties are married. To sum it, there has to be evidence that the long cohabitation is not close friendship between a man and woman…… that the cohabitation has crystallized into a marriage and that it is safe to presume that there is a marriage. To my mind, these features are all too apparent in the Yawe and in Mbiti (supra). To my mind, presumption of marriage, being an assumption does not require proof, of an attempt to go through a form of marriage known to law.”

24. Similar sentiments were expressed by the Supreme court of Kenya in M.N. K vs P.O.M [2023]KESC 2KLR where it held as follows:-“The strict parameters within which a presumption of marriage could be made were: 1. the parties must have lived together for a long time.

2. The parties must have the legal right or capacity to marry.

3. The parties must have intended to marry.

4. There must be consent by both parties.

5. The parties must have held themselves out to the outside world as being a married couple.

6. The onus of proving the presumption was on the party who alleged it.

7. The evidence to rebut the presumption had to be strong, distinct, satisfactory, and conclusive.

8. The standard of proof was on a balance of probabilities.

The doctrine of presumption of marriage was on its deathbed which reasoning was reinforced by the changes to the matrimonial laws in Kenya. The presumption should only be used sparingly where there was cogent evidence to buttress it.Marriage was an institution that had traditional, religious, economic, social, and cultural meanings for many Kenyans. However, it was becoming increasingly common for two consenting adults to live together for long durations where these two adults had neither the desire, wish nor intention to be within the confines of matrimony. There existed relationships where couples cohabit with no intention whatsoever of contracting a marriage. In such contexts, such couples may choose to have an interdependent relationship outside of marriage. While some may find that amoral or incredible, it was a reality of the times we live in today.’

25. Looking at the evidence, I come to the conclusion that although the Respondent was in a form of relationship with the deceased, and she may have considered herself as a wife, the evidence of that relationship cannot meet the threshold of presumption of marriage.

26. I will now deal with the issue of Peggy and Harriet. Their claims are brought under section 29 of the Act, which provides as follows;“For the purpose of this part, defendant means: -a)The wife of wives or former wife or wives and the children of the deceased whether or not maintained by the deceased immediately prior to his death.b)Such of the deceased’s parents, step parents, grandparents, grand-children, children whom the deceased had taken into his family as his own, brothers and sisters, and half-brothers and half-sisters as were being maintained by the deceased immediately prior to his death andc)Where the deceased was a woman, her husband if he was being maintained by her immediately prior to the date of her death.

27. Evidently, the claim in respect to Peggy is brought under part (a) above.

28. The 1st Respondent availed a copy of a birth certificate said to have been issued on 8th July 2010. This was during the deceased’s lifetime. It has not been proven, as alleged by the Respondent that it was made for the purposes of this case. Having been issued over 10 years before the deceased died, the Respondents cannot now come and dispute the contents of the said certificate of birth. Thus, the document must be taken as it is.

29. Further, there was evidence tendered that during the burial of the deceased, the eulogy listed Peggy as one of the deceased’s children. This was a document presented prepared by the family during the burial, which family included the Respondent herein. They cannot be allowed to turn against their very own document.

30. Peggy swore an affidavit and started that she is also a beneficiary to the estate. She stated that she was residing in the house on Nakuru Municipality Block 2/128 and upon the demise of her father, the respondents led by Ossalla wanted to evict her. The Respondents have tried to explain how Peggy came to live in the deceased’s house. To be honest that narrative given does not really add up given the issued I had pointed at earlier. Her continuous residence therein was thus not upon a request by the respondents but as a right as a child of the deceased.

31. I am thus of the view that Peggy the 3rd Applicant was indeed a child of the deceased and under Section 29(a) of the Act, she is deemed to be a dependant. That being the case, as a child of the deceased, she is entitled to a share of his estate.

32. As regards Harriet, the 2nd Applicant, the same is brought under section 29 (b) of the Act. The Applicants’ case is that although she was not a child of the deceased, the deceased had taken her as his own child and maintained her from the age of 6 months.

33. The Respondents term her as a total stranger.

34. There is really no dispute that the said Harriet is not a child of the deceased. For her to succeed. She has to bring herself under section 29 (b) of the Act.

35. The onus was on the Applicants to tender evidence that Harriet was being maintained by the deceased prior to his death.

36. In re Estate of Chepkurgat Cheptony (Deceased) [2023] KEHC 1078 (KLR) the court considered a similar situation and it held as follows;“As per the law any such class of persons under Section 29(B) of the Act must discharge the burden of inheritance of the deceased estate which goes beyond the principles of financial provisions. Pedigrees with complex consanguinity and affinity loops arising from successive generations are in certain instances invoked in a petition for heirship. Customary law infused with culture within our multiple ethnic society provided a regular pattern of social behaviour accepted by a given society/tribe as binding upon itself. For the sake of clarity “There are two fundamentals relationships of the highest generality, namely child and parent, the one relationship being the reciprocal of the other. These can be combined so as to express any of the complex relationship, thus grandchild is expressed by child of child…The welfare test is not sufficient as a matter to justify inheritance for those outside the first degree of consanguinity and affinity. The court must never lose sight of the fact that the nuclear family rank first as an ideal immediate beneficiaries to the estate of the deceased. What those options might be in the class of persons named under 29(B) of the Act will depend upon the individual circumstances of the case but at their widest interpretation they can range from making no order of inheritance to making an order for financial provisions. If the thresholds criteria under section 29(B) of the Act cannot be satisfied then dependency for purpose of inheritance fails. Crossing the threshold of consanguinity and affinity pursuant to section 29 (B) of the Act is not a reason for making an inheritance order but merely opens the way to the possibility that such an order may be made.”

37. While considering the meaning of a dependant under section 29 of the Act, the court held as follows in the case of Beatrice Ciamutua Rugamba v Fredrick Nkari Mutegi & Others, Chuka Succ Cause No 12 of 2016:“From the foregoing, a dependent under section 29 (b) and (c) must prove that he/she was being maintained by the deceased immediately prior to his demise. It is not the mere relationship that matters, but proof of dependency."

38. Looking at the material before court, I find that there is nothing to show that the deceased maintained Harriet. She was not living with the deceased and nothing was exhibited to prove that the deceased took care of her. For example, did he take care of her education, was he acting as a father would throughout her life, and so on.

39. The fact that the deceased was part of the dowry negotiation terms and he walked Harriet down the isle in her wedding day, in my view, would not constitute sufficient grounds to bring her under section 29 (b) of the Act. It is a known fact that in the absence of a father to the bride, the bride’s family resort to other male figures, like uncles, who take his place. That does make that male person a father for purposes of the Act.

40. What I am saying is that there ought to be evidence that exhibits a clear, consistent pattern that the deceased considered Harriet his own child and took her as such, and a once off event does not suffice for purposes of the Act.

41. Having considered the matter, I find that the only person who has proven her claim to the estate is the 3rd Applicant (Peggy)

42. Therefore, since the confirmed grant has not catered for Peggy, the only recourse is for the same to be annulled /revoked and that she be included as a child of the deceased, entitled with equal priority as the other children.

43. In conclusion the court makes the following orders:-a.The grant confirmed on 26th January 2025, is hereby revoked.b.A fresh grant is to issue and Peggy Nigide Mudinyu is to be included as a child and beneficiary to the estate with equal priority as the other children of the deceased.c.The claims by Rachel Miloyo Mudinyu (1st Respondent) and Harriet Kariri Mudinyu (2nd Respondent) are hereby dismissed.d.The administrators to proceed to confirm the grant afresh to include Peggy Nigide Midinyu (The 3rd Applicant) as a beneficiary to the estate.e.There shall be no orders as to costs in respect to the application.

DATED, SIGNED AND DELIVERED AT MERU THIS 16TH DAY OF JANUARY, 2025H. M. NYAGA,JUDGE.