[2022] KEHC 1476 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

FAMILY DIVISION

SUCCESSION CAUSE NO. 2329 OF 2011

IN THE MATTER OF THE ESTATE OF BBB (DECEASED)

JUDGEMENT

1. The deceasedBBB(B) died interstate on the 18th of August 2011 at the Nairobi Hospital at the age of 49 years of broncho pneumonia. At the time of his death, he lived with oneAMM, in Nairobi South C.

2. The deceased prior to living withAMMhad several other women in his life. Initially there wasLKwho claims to have been married under Kalenjin customary law by the deceased and sired two children;JCBandBCB. The two disagreed after staying together for two years. AndLKleft for the USA with her children since, a period of over 17 years before the death ofBBB.LKseems to have led her own, was aware of other women inBBB’slife and did not object.

3. On 23rd August, 2003BBBmarriedPJS(P)in a Christian marriage at the [Particulars Withheld] Church Lelgotet in Nandi South. The two separated around February 2005. They did not have biological children asPJS(P)found out that theBBBsuffered from HIV Aids and opted not to have his children.PJS(P)was later to conceive through IVF process without the involvement ofBBB. She sired two children namelyCCB1 born on 11th June 2006 andCCB2born on 19th June, 2009. BBBdid not acknowledge the two children.

4. BBBfiled a Divorce Cause No. 224 of 2006 between himself andPJS(P), which cause was still pending in court at the time of his death.

5. BBBalso had a relationship with oneCCMwho sired a sonJKB. She died on 6th August 2010. Nothing much is said of her except thatJKBnow lives withBBB’sbrotherEB(E)as his guardian.

6. He is said to have had relation with three other women whose children claim a stake in the estate the said children are;HK,DK,BKandECK.

7. LKand the daughterJCBinitially moved the court for Grant of letters of Administration. The Grant issued to them was revoked &LK, PJS(P),AMMandDKappointed as administrators of the estate on 18th February 2013.

8. From the various applications in court and from evidence the said administrators have not done much administration due to the infights among the beneficiaries which has sucked inBBB’sbrother and sisters. Some beneficiaries have benefited more than others in the process.

9. Against the above background, it is necessary to ascertain the real beneficiaries of the estate, the extent of the estate and thereafter proceed to divide the same.

Who are the children of the deceased?

10. Children ofLKare not contested. Most of the other children were contested. And in the course of the proceedings the court ordered that all the contested children of the deceased do undergo DNA tests to establish paternity. There were 7 contested children. Only 4 underwent the DNA test and a DNA report was filed by the government analyst on the 22nd of March 2021 confirming the paternity of the four.

11. BKfailed to conduct the DNA as directed by court his claims therefor must fail.

As forCCB1andCCB2the 2 children were sired after the deceased andPJS(P)had separated. The deceased did not fund the process of IVF.PJS(P)claims they had discussed. Apart from her word there is no evidence placed before court to corroborate the statement.EB1the deceased’s sister contradicts this and states that a message was sent to the deceased through her ofPJS(P)’s intention. Further the divorce proceedings are clear that the deceased did not acknowledge the said children.

12. There is no evidence either that the deceased took care of the said children. Bearing the facts of the situation betweenBBBandPJS(P)the court is reluctant to questionPJS(P)’s decision to get her “own children” while still within the marriage. Equally the court declines to acknowledge the two as being children of the deceased. The court cannot create a relationship that was none existent between the deceased and the two children.

13. The Court of Appeal inSuccession Cause No. 976 of 1994 Kimani Mathenge Muriuki & 2 Others vs Patricia M. Muriuki & Anotherstated;

“As for Lucina Muthayo Wanjeri, she was born after her mother left the deceased. It is the burden of the mother to prove on a balance of probabilities that deceased was the father of the child. Her mother merely said that deceased was the father without providing concrete evidence.

Respondents dispute that she is a child of the deceased. Her certificate of birth shows that her mother did not give name of the deceased as her father.

It would appear she was not named after the mother of the deceased.

Deceased questioned the name in his letter dated 11. 11. 83 in answer to a request by her mother for help. There is evidence that Lucina did not live with deceased although it is accepted that she used to visit deceased occasionally. There is no concrete evidence of direct assistances by deceased.

It is true that she accompanied deceased abroad once and deceased referred to her as his daughter in the affidavit to support application for passport. It is also true that she was named in the funeral programme as a child of the deceased. But deceased was dead and had no control of the events after his death. I do not think that the mere occasional references of Lucina as his child in a few documents without concrete evidence that deceased was the natural father of the child; that they lived together as father and child; that she was absorbed in the family of deceased or that deceased voluntarily assumed permanent responsibility over her, is sufficient to show that she was a dependant of the deceased in such sensitive matters as inheritance. I conclude therefore that it has not been proved that Lucina is a dependant.”

14. Who is/are the widow or widows of the deceased?

Lucyhad some ceremony with the deceased in 1990. She stated in evidence that this was a Kalenjin customary marriage ceremony. In her evidence LK describes the deceased as a former husband and father of her children. BBB and LK sired 2 children and separated in 1992. Her first child JCB was born in 1989 before the said ceremony and the 2nd BCB in 1991. They are both acknowledged children of the deceased. LK was aware of BBB’s Christian marriage to PJS(P) but did not object to it.

15. According to EB1,BBB’s sister there ceremony described by PJS(P) was an engagement party between the two. The wedding between BBB and LK was never to be. Further, there was no customary marriage as dowry was never paid. It was also her evidence that any traditional marriage would have been at the husband’s.

EB2 BBB’s brother corroborates EB1’s evidence that they attended an engagement party at LK’s. That BBB was reluctant to attend the engagement but was forced by the parents and uncles. Later BBB refused and dowry was not paid. No customary marriage took place.

16. There is evidence though that BBB included LK in his medical scheme and his pension. Would this make her a wife? The court finds in the negative.

17. Further the court is of the view that there is no evidence placed before court to support customary marriage between LK and BBB. A Kalenjin marriage apart from the engagement party has other steps such as dowry negotiations between the parents from both sides and payment of the same. LK admits that no dowry was paid. Clearly therefore the essentials of a customary marriage were not met.

Further LK knew when BBB married PJS(P) in a Christian ceremony and did not raise any objection an indicator that she knew that her status fell short of that of a wife.

18. Their cohabitation lasted a mere two years although one child was born after the engagement and the other before. Though LK alleges to have visited BBB and was in communication with him, however, her actions upon his death negate this. As her children came for their father’s funeral she did not. She only came in October 2011 for purposes of the succession proceedings.

19. The arrangement of being together of the two was too brief as to support the concept of a presumed marriage. LK’s conduct as BBB was in and out of various relationship is also very telling that she was not in his life and both had moved on. Based on all the court makes a finding that by whatever name the relationship between the two is to be described it fails the test of a marriage. LK was not a wife.

20. As for PJS(P) she was indeed married to the deceased in 2003 in a Christian marriage. She was soon to discover that the deceased was suffering from HIV Aids and this seems to have brought a rift in the marriage. They were a discordant couple. Correspondences between the two show that PJS(P) was annoyed as the deceased did not disclose his status to her before marriage and she opted not to give birth to his children. According to her she discussed getting children through IVF method and this did not go well with the deceased.

As her biological clock was ticking, she choose to go through the IVF process. She appeared to have desired children of her own womb. The deceased on his part does not seem to have approved of the decision.

The deceased filed a divorce against PJS(P) in 2006, he however had not prosecuted the same 5 years thereafter, by the time of his death.

21. There not having been a declaration of divorce and the mere fact that PJS(P) asserted her rights within the marriage of keeping away from an HIV aid infected spouse, who ought to have declared his status to her when getting into a relationship, having owed her both a legal and a moral duty and the fact that she declined to bring forth children with her husband at the risk of bearing sick children , and rightly so in the view of this court, cannot erase the fact that she was married to the deceased. In law PJS(P) despite their differences and her decision to get children remained a wife to the deceased.

22. As forAMM she started off as a farm manager of the deceased and thereafter lived with him. He described her as a girlfriend, manager and or a nurse. He did not formerly introduce her to his family as a wife. The mere fact that they lived together for some time, him visiting her family, her taking care of his farm and himself, giving birth to his child on 12th July 2011 who was to die soon thereafter on the 27th September 2011 of cardiac arrest due to severe pneumonia all thisdoes not make her a wife.

After all she knew of PJS(P) and a pending divorce cause. BBB had no capacity to marry and even then, there is no evidence placed before court that BBB took steps towards establishing a marriage with her. She was not a wife under any system of law.

23. In Re Estate of Lihasi Bidali (Deceased) (2019) EklrNyarangi JA (as he then was) stated in a situation similar to Audrey’s as follows;

“…The fact that the Appellant and the deceased together visited the deceased father’s home or that she attended the funeral of the deceased’s father is not material. The Appellant was a friend of the deceased and she accompanied him to the funeral in that capacity. That is how friends treat each other. And on account of the cohabitation the Appellant could not help meeting and knowing and even assisting the relatives of the deceased including the respondents, the appellant’s own evidence proved that there had been no meeting between her family members and those of the deceased, and that there had been no marriage ceremony of any kind or form and that there was no meeting of mind between the father of the deceased and the appellant’s father. This evidence and that of the respondents clearly proves that the appellant could not be presumed to be married, that was the cogent evidence that the essential element required for a valid Kikuyu marriage had not been satisfied. The effect of all this is to rebut a presumption of marriage.”

24. Having made that above findings and for avoidance of doubt the beneficiaries of the Estate herein are as follows;

PJS(P) widow

JCB daughter

BCB daughter

HKson

DK son

ECK son

JKB son

25. The properties of the deceased were ascertained as follows;

Immovable properties

i. L.R.NO. xxxx. Akiba Bellevue, House NO. xx

ii. L.R. NO. xxxx Golden Gate, House NO. xx

iii. LR.NO. xxxx Amboseli, House No. xx

iv. L.R. NO. KJD/Kisaju/ xxxx

v. L.R.NO. Kitale/Liyavo Settlement scheme /03(50 acres)

vi. Kimwani Farm (50 acres)

Movable Properties

vii. KBH xxx

viii. KAE xxx

ix. KAR xxx

x. KAA xxx tractor

xi. 2 Arrows

xii. 1 planter

xiii. 1 jembe tractor

xiv. 1 seeder

xv. 1 yellow boom

xvi. 1 trailer

xvii. Life stock

Bank Accounts

xviii. Account No. xxxx KCB Haile Sellasie Branch

xix. Account No. xxxx KCB KICC Branch

xx. Any other Bank

xxi. Life insurance Proceeds

26. Having considered the different proposals by the parties and in being as equitable as possible the court distributes the estate as follows; -

a. L.R. NO.xxxx Amboseli Hse xx to PJS(P)

b. L.R. NO.xxxx Golden Gate Hse NO. xx to JCB, BCB & JKB in equal shares

c. L.R.NO.xxxx Akiba Bellevue Hse NO. XX to HK, DK & ECK in equal shares.

d. L.R NO. KJD/Kisaju/ xxxx to be subdivided and to be shared amongst the 6 beneficiaries in equal shares.

e. L.R.NO. Kitale/ Liyavo Settlement scheme to be subdivided and to be shared amongst the 6 beneficiaries in equal shares.

f. Kimwani Farm to be subdivided and to be shared amongst the 6 beneficiaries in equal shares.

g. All motor vehicles, farm machineries, accessories and livestock be sold and proceeds shared amongst the 6 beneficiaries in equal shares.

h. Monies held in all accounts and insurance proceeds to be ascertained by beneficiaries and administrators, and proceeds thereof shared equally amongst the 6 beneficiaries.

i. Proceeds of rent if any with Legend Management Limited after payment of costs be equally shared amongst the 6 beneficiaries.

27. Considering the findings and the decision of this court it will not be viable to retain the administrators earlier appointed as some have been found not to have any interest in the Estate. Therefore, theGrant issued toLK, PJS(P),AMMandDKon 18th February 2013 be and is hereby revoked.

28. Having the background of this case in mind and the acrimony existing amongst the beneficiaries the court now appointsEB2, EB1 & PJS(P)as Administrators of the Estate, to oversee the distribution of the Estate herein within the next 6 months of the date hereof.

29. Each party to bear their own costs

DELIVERED AND SIGNED AT GARISSA THIS 10TH DAY OF MARCH, 2022

……………….………………

ALI-ARONI

JUDGE