[2022] KEHC 11723 (KLR)

In re Estate of Beryl Aluoch (Deceased) (Civil Suit E017 of 2021) [2022] KEHC 11723 (KLR) (2 June 2022) (Ruling)

Neutral citation: [2022] KEHC 11723 (KLR)

Republic of Kenya

In the High Court at Kisumu

Civil Suit E017 of 2021

FA Ochieng, J

June 2, 2022

Between

Dominic Ogol Obado

Applicant

and

Bildad Omoro

Respondent

Ruling

1. The application dated April 18, 2021 has been brought by Domnic Ogol Obado in respect to the following properties;(a)Parcel of land – Nyalenda/B/2819;(b)Motor vehicle – registration number KCR 998U (pick-up);(c)Motor vehicle – registration number KCU 552M (Toyota Allion).

2. The applicant states that the respondent, Bildad Omoro, is his brother-in-law by virtue of the fact that the applicant was the husband of Beryl Aluoch, who is a sister to Bildad.

3. On the other hand, the respondent acknowledged that Beryl was his sister; but he denied the applicant’s assertion concerning the marital union between the applicant and Beryl.

4. It is common ground that Beryl Aluoch passed away on September 30, 2020.

5. It was the applicant’s case that after Beryl passed away, her brother who is the respondent herein, lay claim to the 3 properties cited above.

6. Therefore, the applicant instituted the proceedings herein, by way of an originating summons, as he held the view that the respondent had no right to intermeddle in the estate of the late Beryl Aluoch.

7. Simultaneously with the originating summons, the applicant filed the application dated April 18, 2021.

8. By the application, he sought an order that would give him the custody of the 2 motor vehicles. He indicated that the order granting him custody could be conditional upon the requirement that he must not sell or dispose of or otherwise destroy the said vehicles.

9. Secondly, the applicant sought an interim injunction to restrain the respondent from selling and/or interfering with the 2 vehicles.

10. Thirdly, the applicant sought an injunction to restrain the respondent from entering onto, remaining upon, occupying, cultivating, alienating, selling or doing any act upon the parcel of land Nyalenda/B/2819.

11. The application is premised upon the relationship between the applicant and Beryl, whom he described as his wife.

12. According to the applicant, he had lived together with Beryl for 18 years. During the said period, the applicant asserts that they jointly acquired the parcel of land and the 2 vehicles.

13. Following the demise of his wife, the applicant believes that he was now the rightful and legal owner of the 2 vehicles and the parcel of land.

14. However, the respondent had taken possession of all the properties. He described the respondent’s actions as constituting trespass and interference with his property.

15. By depriving him of the vehicles, the respondent was said to be depriving the applicant of his right to earn his livelihood, as the applicant had previously earned his daily income from the vehicles.

16. The applicant asserted that the respondent had the intention of transferring all the assets which the applicant had jointly acquired with Beryl, to his own name.

17. In his replying affidavit, the respondent deponed that the parcel of land in issue belonged to his sister, as evidenced by the title deed and the certificate of official search.

18. The respondent said that the applicant had no right to live on the parcel of land. In his view, if the applicant had lived on the said piece of land, that would amount to an act of contempt against him, as he is a brother of Beryl.

19. In my considered opinion, the fact that the respondent was a brother of the deceased, does not of itself, confer upon him the right to claim ownership.

20. Similarly, when there is a disputed marital union between the deceased and the applicant, that issue would need to be resolved first, so as to ascertain the legal capacity of the applicant, to lay claim to any assets registered in the name of the deceased.

21. In the event that the applicant was able to prove that the deceased was his wife, that may well rank him in priority over the respondent, in respect to the estate of the deceased.

22. The respondent has submitted that the most that the applicant could prove was that he had cohabited with the deceased, as there was no evidence adduced to show that the relationship in issue fell within any of the 5 kinds of marriages, pursuant to section 6 of the Marriage Act. The said kinds of marriages were specified as follows;Marriages celebrated –(a)in accordance with the rites of a christian denomination;(b)as a civil marriage;(c)in accordance with the customary rites relating to any of the communities in Kenya;(d)in accordance with the hindu rites and ceremonies; and(e)in accordance with islamic law.

23. In this case, the applicant has asserted that he married the deceased under the luo customary law.

24. Therefore, if the applicant were to lead evidence to prove his said assertion, that would imply that his relationship with the deceased fell within one of the recognized kinds of marriages.

25. At this stage, the applicant has not yet made available any evidence to prove that there existed a customary marriage between him and the deceased.

26. And whereas the respondent submitted that cohabitation, regardless of however long it lasts, cannot be deemed as a marriage, I find that it was premature for the court to make a final determination on the said issue, at this early stage of these proceedings.

27. But I do wonder about what would happen to the very many people who have not complied with the provisions of section 59 of the Marriage Act, which stipulates what constitutes the evidence of a marriage.

28. It is a matter of common notoriety, about which this court takes judicial notice, that many couples who live together as husband and wife; and who are recognized by their families and the communities they hail from; do not have marriage certificates. They also have not caused their said relationships to be recorded in any registers of marriage.

29. The court will await the input of the parties on the question concerning whether or not the law declines to recognize such marital unions, simply because of non-compliance with section 59 of the Marriage Act. I so find because even the respondent has acknowledged that the Marriage Act does not outlaw the legal presumption of marriage, which arises from inter alia, long cohabitation.

30. On a prima facie basis, I find that the applicant and the deceased lived together in the house which is on the land parcel Nyalenda/B/2819.

31. Although it is not clear yet, whether or not the said reality was based on their marital status, I find that the respondent cannot be permitted to kick out the applicant from the house, simply because the respondent was a brother to the deceased.

32. If the respondent were permitted to kick out the applicant from the house, that could constitute an infringement of the applicant’s right, by a person who had not proved that he has a better legal entitlement than the applicant.

33. As regards the Toyota Allion registration KCU 552M, I find that the applicant has explained the circumstances in which the respondent acquired possession.

34. So far, the respondent has not controverted the facts, which indicate that he was given the vehicle for use during the funeral arrangements.

35. Thereafter, the respondent offered to help in paying-off the balance of the loan which was used to purchase the vehicle.

36. Through some yet unexplained steps, the respondent signed an agreement with Zohaib trading limited. The said “sale agreement” is dated December 1, 2020.

37. It is not lost on the court that the sale agreement was executed 2 months after the death of Beryl.

38. As to whether or not the said agreement could pass valid title to the respondent is a matter that would require determination. I so find because the agreement dated December 1, 2020 expressly recognizes the existence of a “previous agreement.”

39. The applicant’s claim is founded upon the previous agreement, which was signed by Beryl; to whom he claims to be married. As to whether the applicant or the respondent has a better entitlement to the vehicle, is a matter that will need to be determined.

40. Until the court makes the determination, I hold the considered view that the vehicle in issue, must be preserved.

41. The respondent has claimed to be the beneficial owner of the Toyota Allion, on the grounds that he has continued paying the monthly instalments to the seller.

42. Although I am not at all sure if that claim is properly founded in law, I note that the applicant was laying a similar claim in respect of the pick-up registration number KCR 998U.

43. I find, on a prima facie basis, that justice demands that the court should balance the competing rights, pending the hearing and final determination.

44. Accordingly, I order that the applicant shall have possession of the pick-up whilst the respondent will have possession of the Toyota Allion.

45. Both parties shall ensure that any outstanding loans for the respective vehicles, which are in their custody, are paid.

46. Both parties shall be restrained from selling, alienating or in any way encumbering the titles to the vehicles.

47. The applicant shall continue to have possession of the parcel of land Nyalenda/B/2819. However, he shall not sell, alienate or encumber the title to the said property.

48. In making these orders, I am not averse to the fact that these proceedings were commenced by way of an originating summons.

49. These, therefore are not proceedings in a succession cause.

50. Given the scope of the issues in dispute, I hold the considered opinion that an originating summons would be an inappropriate procedure for use in determining the case. Accordingly, the parties will be asked to give their respective views on how they would wish to have the case move forward.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 2ND DAY OF JUNE 2022FRED A. OCHIENGJUDGECIVIL SUIT NO. E017/2021 RULING 0