[2022] KEHC 26975 (KLR)

REPUBLIC OF KENYA

IN THE HIGH OF KENYA AT ELDORET

SUCCESSION CAUSE NO. 262 OF 2011

IN THE MATTER OF THE ESTATE OF THE LATE CHARLES KIPCHUMBA CHESEREK (DECEASED)

KIMOI KIPCHUMBA....................................PETITIONERS

AND

THOMAS KIPCHUMBA

JOSPHINE KIPCHUMBA.............................OBJECTORS

JUDGMENT

1. The Objectors filed an objection to the making of grant dated 27th November, 2012 brought under Section 68 and Rule (17)of the Law of Succession Act. The Objectors allege that one of the 2nd Petitioner namely Kimoi Kipchumba is not a widow and was never married to the deceased prior to his death. They also allege that no consent was sought from the deceased’s beneficiaries before filing cause. The Objectors object to Kimoi being one of the Petitioners in the estate of the late Charles Kipchumba Cheserek. It was the Objectors’ case that Tula Kipchumba never petitioned for the grant of letters of administration intestate with respect to the deceased’s estate and that she has never been in court before and neither was she aware of any succession proceeding before court. It was the Objectors’ contention that Samuel Kipchumba who is a son to the deceased borne by Kimoi Kipchumba manipulated his way into having Tula Kipchumba petition for the grant of letters of administration by fraudulently obtaining her signature without disclosing his intentions.

2. In response to the objection proceedings the 2nd Petitioner Kimoi Kipchumba filed a Replying Affidavit sworn on 6th February, 2013. It was her case that the deceased had two widows a fact that is collaborated by the Assistant Chief Chief Cheptobot. It was also her case that the 1st Petitioner Tula Kipchumba has been signing all the relevant court documents. She urged court to invite the Directorate of Criminal Investigations to verify her alleged signatures. It was also her contention that consent was duly sought from the respective beneficiaries prior to the filing of these proceedings. It was the 2nd Petitioner’s contention that although the 1st Petitioner may be senile her children witnessed the entire transaction. The 2nd petitioner urged court to dismiss the objection proceedings with costs.

3. A date was given for the hearing of the objection dated 27th November, 2012. The oral hearing commenced on 15th July, 2019.

Objectors’ case

4. PW1 Kobilo Cheresek, adopted his witness statement as evidence in chief. He testified that the deceased was his brother. He also testified that the deceased only had wife that is Tula Kipchumba the 2nd Petitioner. He denied being aware that dowry was ever paid in respect of Kimoi the 2nd Petitioner. He affirmed that there was never such a marriage. He also stated that he was not aware that his brother was married to Kimoi. On cross-examination PW1 stated that the 2nd Petitioner was never introduced to the family as wife to the deceased. He admitted that Samuel Kibet is his nephew and son born by Kimoi and his late brother. He however reiterated that the deceased only had one wife Tula and that Kimoi was never married to his brother but only had a son with him. He denied the allegation that the family had held a meeting that authorized Samuel to apply for letters of administration intestate with respect to the deceased’s estate.

5. PW2 Tula Kipchumba adopted her witness statement as evidence in Chief. She testified that the deceased was her husband and that the deceased only had one wife during his lifetime. She admitted that she knows the 2nd Petitioner who has a son with the deceased. It was her contention that at no given time did the deceased ever ask her for permission to marry a second wife and that there was no marriage ceremony whatsoever between the deceased and Kimoi. PW2 submitted that no dowry was ever paid for Kimoi neither was a house ever built for her in her homestead. PW2 admitted that when Samuel Kibet was young, he would occasionally visit her with the deceased. PW2 further submitted that when the deceased died Kimoi did not attend his funeral. Samuel Kibet equally did not attend the said funeral because he was young. PW2 stated that Kimoi the 2nd Petitioner herein has no legal capacity to petition for the grant of letters of administration with respect to the deceased’s estate. PW2 further testified that she is aware that the 2nd Petitioner has 5 children and that one whose name is Samuel Kibet is her late husband’s. On cross-examination PW2 told court that the 2nd Petitioner does not have a house on her parcel of land. She reiterated that the 2nd Petitioner was never brought home as wife by the deceased. She denied going to get the 2nd Petitioner back after she deserted her home and stated that she only went for her son. She also reiterated that the 2nd Petitioner has 5 children while she has 4 and that she had taken Samuel under her care. When she got married to the deceased, she already had two children that is Benjamin and Anna. She only had two children with the deceased that is Thomas and Josephine. She admitted that she was the one that had instructed the chief to write the letter dated 13th October, 2010. On re-examination PW2 stated that in the letter dated 13th October, 2010 the Chief had indicated Kimoi as one of the widows of the deceased. She denied giving the Chief such information and reiterated that she had asked the Chief to write the said letter but did not dictate its contents.

6. PW3 Philip Chelanga adopted his witness statement as evidence in chief. He testified that the deceased was his uncle and a brother to his mother. He stated that he knows Tula who is the mother to Thomas and that he had only seen Kimoi in court for the very first time. He stated that had visited the deceased’s homestead as a child and had never seen Kimoi in the deceased’s homestead. The deceased only had one wife and that is Tula who lived with deceased and his mother. The deceased’s parcel of land had only two houses; one for his mother and the other for his wife and that at no given time was there a house for Kimoi. PW3 denied there ever being an engagement ceremony held by the deceased in honour of Kimoi. He stated that before the deceased died, he had informed him about his son whom he wanted PW3 to bring back home. That his name was Samuel. PW3 stated that he carried out the deceased’s wishes and brought the said Samuel home where he lives on his own piece of land and not the disputed parcel of land. He stated that he was aware that the 2nd Petitioner has 5 children of which only one belongs to the deceased. He reiterated that the deceased had only mentioned about one son who is name is Samuel. On cross-examination PW3 stated that he was aware that Tula had two children out of wedlock. He also stated that Tula had given birth to other children after the death of the deceased. He admitted that he did not know whether an engagement ceremony was ever held in honour of Tula by the deceased. He testified that the deceased was a business man and used to trade in hides and skins. However on 14th December, 2011 he was not present when the family of the deceased sat down to discuss issues relating to the estate of the deceased but his mother was and is now deceased. On re-examination PW3 testified that his mother had divided the deceased’s land into two portions, one for the Tula’s Children and the other for Samuel. He also stated that the deceased’s children are Benjamin, Thomas and Samuel. PW3 testified that Samuel is Kimoi son while Benjamin is the son of Tula but could not tell whether he is the deceased’s biological son.

7. PW4 Thomas Kipchumbatestified that the deceased was his father and that Tula was his mother. PW4 stated that he objected to the issuance of grant to Kimoi whom he alleged was never married to his father. He also contended that he did not give consent to her to petition for a grant of letters of administration intestate. He produced a letter from the Chief Kaptich Location dated 14th March, 2019 listing the following persons as the deceased’s beneficiaries; Tula Kipchumba, Samuel Kipchumba, Anna Kipchumba, Josephine Kipchumba and Thomas Kipchumba. It was his contention that the people who ought to be administrators of the deceased estate are himself, his sister and Samuel. He stated that Samuel is his step-brother born by Kimoi. He denied that Kimoi had a house in their homestead. He stated that he does know where Kimoi lives and has since learnt that she has other children apart from Samuel. PW4 stated that his late father had a piece of land in Keiyo where Samuel lives and another in Mossop where his mother lives. He objected to having his mother being made one of the administrators as she is illiterate and can be easily deceived. On cross-examination PW4 stated that Samuel is older than him and does not know when Samuel was born. He also reiterated that he does not know Samuel’s other siblings and only knows of Samuel. He stated that he was not aware of these proceedings and only came to know about them in 2011 from his mother and consequently filed these objection proceedings. He also stated that there were no meetings held by the family before this succession cause was filed. He produced a letter dated 13th August, 2010 in which he had written to the Chief complaining that there were meetings being held with respect to his father’s estate. This he produced in evidence as DMFI 2. He stated that meetings may have been held but he was not aware neither were any of siblings aware. PW4 also testified that he was aware that his mother had two other children out of wedlock after his father died who have since been settled in their own family land and have no share in the deceased’s estate. He also stated that Benjamin is his elder brother and son to the deceased. He denied having attended the meeting that was held on 14th December, 2011 though being listed as having been in attendance. He stated that the minutes of the said meeting were taken by the Chief Kaptich Location where his mother stays but he was not in attendance at the meeting. He stated that he cannot tell whether his late father married Kimoi in 1966 or whether they differed with his late father. He stated that he would not know whether Benjamin was born out of wedlock and reiterated that of Kimoi’s children only Samwel was brought back home. It was his testimony that the Keiyo land was registered in his name, Samuel’s and Benjamin’s. He objected to the contents of the Assistant Chief’s Cheptobot Sub-location letter dated 13th October, 2010 where Kimoi was recognized as one of the widows of the deceased. On re-examination PW4 stated that form P&A 5 indicates Kimoi Kipchumba as one of the beneficiaries of the deceased’s estate having been described as widow of the deceased while form 38 being the consent lists beneficiaries of the deceased. That although his name appears on form 38 he did not sign it. It was his case that Samuel is the only child of Kimoi whose name appears on the consent. PW4 denied knowing one S.E Cheptuya who chaired the meeting that was held on 14th December, 2011. He reiterated that although exhibit DMFI1 being a copy of minutes of the said meeting indicates that he was in attendance, it does not bear his signature neither does it bear signatures of those who were in attendance.

Petitioners’ case

8. DW1 Kimoi Kipchumbaadopted her witness statement as evidence in chief. She testified that she knew the deceased. That the deceased attended an engagement ceremony at her home. DW1 stated that she had a child with another man who wanted to marry her but it turned out that they were related. She stated that her first child is not the deceased’s biological child. It was her case that the late Charles Kipchumba Cheserek sent 4 elders to her home to ask for her hand in marriage. She testified that her parents consented to the same and she was taken to Kipchumba’s home where he built a house for her but prior to that she lived in her mother-in-law’s house. She stated that she only gave birth to one child with the late Kipchumba and while she was pregnant with her other child, they had a disagreement that caused the deceased to beat her up. She alleges that she never went back to Kipchumba’s home for fear that he would kill her because she had suffered a miscarriage as a result of the said beatings. DW1 testified that she was the 2nd wife of the deceased and that Tula was the first wife. That she had two children by the time DW1 got married. DW1 testified that she only had one child with the deceased whose name is Samuel. That the said Samuel was later taken back when the deceased died. It was her case that land of the deceased ought to be shared equally between the two houses. That the deceased had land in Maina, Keiyo and Mossop. She stated that she was living in Cheptobot and never lived in the Keiyo land. She urged court to divide the Mossop land equally between the two houses. She stated that she did not attend the meeting that was held on 14th December, 2011 but she is aware that there were discussions about the land of the deceased. On cross-examination DW 1 failed to produce her identity card in court. She stated that her firstborn child who is named Salina is not biological child of the deceased. She also stated that after suffering a miscarriage she had other children. She also confirmed that the deceased did not pay any dowry to her parents. Further, Salina’s father never collected her two cows from her parents. DW1 also confirmed that Tula did not attend the engagement ceremony with the four elders that she had mentioned earlier. Most of the people who attended the said engagement ceremony have since died and that one of them was her late brother Arap Singoei. It was her case that the foundation of her house on the deceased’s parcel of land still exists but the house itself got destroyed. She currently stays at her parent’s home.

9. DW2 Kibiwot Kisangtestified that the deceased was his cousin. He stated that he knows both Tula and Kimoi whom he referred to as co-wives and widows of the deceased. Tula is the first wife and that upon advice of elders the deceased took in a second wife. That 4 elders were sent to get Kimoi as the second wife. DW2 testified that he was one of the four elders that were sent to get Kimoi as a second wife. That Kimoi stayed in her mother-in-law’s house for six months before the deceased built her a house. DW 2 testified that he was among the people who built a house for Kimoi. He further stated that both Tula’s and Kimoi’s houses were grass-thatched. There were several disagreements between Kimoi and her late husband that saw her flee her home but the very last disagreement caused Kimoi to suffer a miscarriage and as a result she left the deceased permanently. DW2 testified that no dowry was paid for Kimoi and that only traditional beer was taken to her parents. That during a meeting of elders it was agreed that the land which the deceased left be shared equally among the two houses. The Keiyo property was also shared among the two houses and that Tula got 14 portions while Kimoi was given 13 portions and that Kimoi’s son resides on the portion. The Mossop land was also divided by the elders. DW2 testified that he was present during the meeting that was held on 14th December, 2011 and that his name appears in the minutes of the said meeting. That all the children of the deceased were given portions of the said parcels of land and that there is nothing left for distribution. On cross-examination DW2 confirmed that Kimoi presently resides in her parent’s home. He also confirmed that the deceased only had one child with Kimoi as the other one was aborted.

10. DW 3 Samuel Kipchumbatestified that Kimoi Kipchumba is his mother and the that deceased was his father. It was his case that the deceased had two wives Tula and Kimoi. He refuted the assertion by the 1st petitioner that the deceased did not ask her for permission to marry another wife. He stated that he was taken care of by his uncles and only return home as an adult married man. He stated that he resides with his mother and that his mother has three children. He stated that his mother had disagreed with Tula over their sheep. DW3 testified that they had begun the process of sub-division before receiving a letter of objection from Thomas Kipchumba. On cross-examination DW3 stated that he is a beneficiary in this matter and hence has a right to be heard. It was his case that the family sat down and agreed on who would petition court for grant of letters of Administration Intestate. He also stated that he lives in Maina sub-location on his grandfather’s land. It was his case that they did not need to do succession because when the process of demarcation was being done the names of the respective beneficiaries were included. He also stated that he had received 8 parcels of land out of the 22 parcels. It was his contention that at the time of demarcation the acreage was never considered. He denied having grabbed 14 parcels of land totaling to about 70 acres. It was his case that nobody knows the acreage of land that they inherited from their grandfather. That Thomas was also given land and that the girls were to be given land allocated to their respective houses. He stated that his mother was a wife to the deceased an assertion that he was told by his uncles and their neighbours. On re-examination DW3 told court that he had inherited land from both his grandfather and father. He also stated that the land was shared out by the elders in accordance with the customs of the Pokot. That the daughters were to be provided for by their respective brothers in the respective houses. It was his case that the deceased had complied with the Marakwet customs of marriage when he married the 2nd Petitioner.

Submissions

11. Both parties filed their respective submissions. The Petitioners filed their submissions on 24th August, 2021 whereas the Objectors filed their submissions on 29th November, 2021.

Determination

12. I have considered the pleadings and the submissions of the parties. The only issues for determination are;

a) Whether the 2nd Petitioner was a wife of the deceased; and therefore, entitled to administer and inherit the deceased’s estate;

b) Whether the Petitioners obtained consent from all the beneficiaries of the deceased prior to the filing of this succession cause

13. Objections to making of grants are addressed in section 68 and 69 of the Law of Succession Act, and Rule 17 of the Probate and Administration Rules. For avoidance of doubt, I shall here below set out the provisions in the Act, which state:

“68. Objections to application

(1) Notice of any objection to an application for a grant of representation shall be lodged with the court, in such form as may be prescribed, within the period specified by such notice as aforesaid, or such longer period as the court may allow.

(2) Where notice of objection has been lodged under subsection (1), the court shall give notice to the objector to file an answer to the application and a cross-application within a specified period.

69. Procedure after notice and objections

(1) Where a notice of objection has been lodged under subsection (1) of section 68, or no answer or no cross-application has been filed as required under subsection (2) of that section, a grant may be made in accordance with the original application.

(2) Where an answer and a cross-application have been filed under subsection (2) of section 68, the court shall proceed to determine the dispute.”

14. The objective of objection proceedings should be to determine whether or not the person who has petitioned for representation is qualified to be appointed as personal representative, or, if qualified, he or she is competent to administer the estate, or if qualified and competent, whether he or she is suitable for appointment. Qualification largely depends on the relationship between the deceased and the person seeking authority to administer the estate. In testacy, that person should be that appointed by the deceased under the terms of his Will as executor, unless he has renounced executorship, going by the provisions of sections 59, 60 and 61 of the Act. Where there is no executor to prove the will, for whatever reason, then sections 63, 64 and 65 of the Act would apply, and those qualifying for appointment ought to be the persons named in the will as beneficiaries. In intestacy, the persons who qualify would be the immediate survivors of the deceased as spelt out in Part V and section 66 of the Act.

15. The law on this is Section 66, which sets out in order of preference to guide the court when it comes to appointment of administrators in intestacy. Priority is given to surviving spouses, followed by surviving children. Siblings of a deceased person, where he is survived by a spouse and children, come way down the list. The provision says:

“66. Preference to be given to certain persons to administer where deceased died intestate When a deceased has died intestate, the court shall, save as otherwise expressly provided, have a final discretion as to the person or persons to whom a grant of letters of administration shall, in the best interests of all concerned, be made, but shall, without prejudice to that discretion, accept as a general guide the following order of preference—

(a) surviving spouse or spouses, with or without association of other beneficiaries;

(b) other beneficiaries entitled on intestacy, with priority according to their respective beneficial interests as provided by Part V;

(c) the Public Trustee; and

(d) creditors …”

16. In the instant case the Objectors’ contention is that the 2nd Petitioner was not a wife to the deceased or a beneficiary to the estate of the deceased and hence lacks the legal capacity to petition for the grant of letters of administration intestate.

17. The threshold issue whether the Objectors have satisfied the standard of proof against the Petitioners can be supported by the proposition in the Court of Appeal case of Uganda (Elizabeth Wamala v Jolly Kasende & 2 othersCA No. 70 of 2014) where the court held on appeal as follows:

“The issue of whether or not the appellant was a wife of the deceased was not a matter that could be resolved as an agreed fact. This was ultimately a legal question which could duly be resolved after establishment of the relevant facts. It is clear that on the pleadings of the 3rd respondent, the legality of the union between the appellant and the deceased was called in question. This is a matter that could only be resolved by the court though the parties could abandon the issue obviating the need for a court decision. The inquiry into whether there was subsisting marriage does not lose relevance because of the death of a party to it. To the contrary it is important to establish the legal relationship between the deceased and other people claiming a share in his estate as an entitlement, including the right to apply for and be granted Letters of administration. The right to share in the estate of a deceased or to be granted letters of administration ordinarily depends on the legal relationship between those persons and the deceased. The resolution of the nature of relationship that each of these persons enjoyed with the deceased was key to resolving the matters in controversy in this suit. At some point the trial Judge states that since the deceased was no longer alive, it was immaterial to determine whether the appellant was married to him or not.”

18. The legal burden of proof shifts to the 2nd Petitioner to prove on a balance of probabilities that she was married to the deceased. The 2nd Petitioner testified that she was married to the deceased under Marakwet Customary Law. She testified that an engagement ceremony was held at her home which was attended by four elders sent by deceased and some other people who are now deceased. She however failed to avail any other witness apart from DW2 a cousin to the deceased to support the allegation that she was married to the deceased under Marakwet Customary Law. From evidence on record there is no doubt that the 2nd Petitioner herein bore a child with the deceased. The 2nd Petitioner save for having a son with the deceased, was never married to him. During cross-examination she stated that the deceased never paid any dowry to her parents as a token of appreciation. DW2 confirmed as much: no dowry negotiations were ever held and no dowry was every paid for the 2nd Petitioner. She only mentions in passing that the deceased brewed traditional beer for her parents. She further told court that the only dowry that had been paid to her parents were two cows that had been given by the father to her firstborn child Salina.

19. Would the doctrine of presumption of marriage rescue the 2nd Petitioner in this scenario? The Court of Appeal in Phylis Njoki Karanja & 2 others v Rosemary Mueni Karanja & another [2009] eKLR held that the presumption of marriage could be drawn from long cohabitation and acts of general repute. It held as follows:

Before a presumption of marriage can arise a party needs to establish long cohabitation and acts of general repute; that 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. We are of the view that since the presumption is in the nature of an assumption it is not imperative that certain customary rites be performed.

20. A party establishes a presumption of marriage when the party proves two factual predicates:

a) Quantitative element – namely the length of time the two people have cohabited with each other; and

b) Qualitative element – namely acts showing general repute that the two parties held themselves out as husband and wife. Factors tending to demonstrate these qualitative elements include whether the parties had children together; whether the community considered the two as husband and wife; whether the two carried on business jointly or whether they took a loan jointly; whether the two held a joint bank account – and so forth.

21. What evidence did the 2nd Petitioner present to enable the Court to make the presumption? The 2nd Petitioner claimed that she lived with the deceased in his homestead but separated from him and never returned due to his cruel acts. In my view, that ends the inquiry. A marriage by presumption is a judicial doctrine used to facilitate equitable outcomes in certain extant situations. It does not relate back.

22. In my view, the 2nd Petitioner was not a wife of the Deceased for purposes of the Law of Succession Act and cannot be a beneficiary to his estate.

23. The 1st Objector has also contended that the Petitioners did not obtain consent from all the beneficiaries of the deceased prior to the petition for letters of administration. He also testified that he was not aware of these proceedings until sometime later.

24. Rule 7 of the Probate and Administration Rules 1980 provides that application for grant of representation in relation to an estate of a deceased person to whose estate no grant or no grant other than one under section 49 or a limited grant under section 67 of the Act has been made, the application shall be by petition supported by an affidavit. The said affidavit must contain amongst other details, the names, addresses, marital status 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 {Rule 17(e)(i)}.

25. Rule 26 provides that letters of administration shall not be granted to any applicant without notice to every other person entitled in the same degree as or in priority to the applicant. Further that in an application for a grant where the applicant is entitled in a degree equal to or lower than that of any other person shall, in default of renunciation, or written consent in Form 38 or 39, by all persons so entitled in equality or priority, be supported by an affidavit of the applicant and such other evidence as the court may require.

26. The effect of the above provisions is that where a person is applying for a grant of letters of administration intestate, he must get consent from persons of equal or lower priority than him. Thomas Kipchumba the 1st Objector herein is a son to the deceased. It therefore means that prior to the filing of this petition the Petitioners were required to obtain consent from him. He ought to have consented to the grant of letters of administration intestate being issued to the proposed administrators. I have perused the court record and I note that consent to the making of a grant of letters of administration intestate which was filed contemporaneously with the petition was only made by the following beneficiaries; Tula Kipchumba, Kimoi Kipchumba, Benjamin Kipchumba, Samuel Kipchumba, Josephine Kipchumba and Anne Kipchumba. It is indeed true that Thomas Kipchumba did not consent to the grant of letters of administration being given to Tula Kipchumba and Kimoi Kipchumba. It is further clear from the record that he did not append his signature on the said form. It is my view therefore that if the Petitioners were to obtain the grant of letters of administration in this instant case, it would have been pursuant to proceedings which were defective in substance. The Petitioners ought to have obtained consent from all the beneficiaries of the deceased. In Antony Karukenya Njeru –vs- Thomas M. Njeru [2014] eKLR, a grant of letters of administration was revoked as persons with equal priority did not consent to the petitioners therein applying for grant of letters of administration. (See also In the Matter of the Estate of Muriranja Mboro Njiri, Nairobi H.C. Succ. Cause No. 890 of 2003).

27. In view of the foregoing, it is my finding that the objection raised by the Objectors is meritorious.

28. The Objector’s Objection dated 27th November 2012, Answer to the Petition for Grant dated 20th March, 2013 and a Petition by way of Cross-Application for a Grant dated 20th March, 2013 are accordingly allowed. This Court consequently makes the following orders, arising from the findings herein:

1. Parties to this Succession cause are hereby directed to propose new administrators to administer the deceased’s estate.

2. Each party will bear its own costs.

DATED, SIGNED AND DELIVERED AT ELDORET THIS 10TH OF MARCH 2022.

E. K. OGOLA

JUDGE