[2022] KEHC 1791 (KLR)

REPUBLIC OF KENYA

HIGH COURT OF KENYA AT KERICHO

SUCCESSION CAUSE NO. 3 OF 2018

IN THE MATTER OF THE ESTATE OF THE LATE EAK

(DECEASED)

RCK.................................1ST PETITIONER

KCC................................2ND PETITIONER

VERSUS

RCK......................................... OBJECTOR

JUDGMENT

1. The deceased in this Succession Cause the Late ERIC ARAP KETER died intestate on 4/12/2017 and the two Petitioners RCK AND KCC (hereafter referred to the first and second Petitioners) filed this succession cause on 29/3/2018.

2. On 19/12/2018, the Objector RCK (hereafter referred to as the Objector) filed an objection to the Petition on the ground that she was left out by the petitioners yet she was also married to the deceased under Kipsigis customary law and they were blessed with three children namely:-

(1) KKY

(2) KICK and

(3) KTK

3. The hearing of the objection proceeded by way of viva voce evidence. The Objector called Seven (7) witnesses together with herself and a summary of the Objector’s evidence was as outlined below;

4. The Objector who testified as OW.1 said she got married to the deceased under Kipsigis Customary Law in the year 2008 when the Traditional Ceremony was conducted and the dowry was paid in the year 2012. She said they had started staying together since 1996. She said that their marriage was blessed with four children but one died and was buried by the deceased at Milimani Grammar School.

5. The Objector said she did joint investments with the deceased and she is therefore entitled to a share of the Estate. She said the deceased used to provide for her and the children and further he built for her a matrimonial home at Chebilat on a piece of land he purchased from one JOSEPH KIRUI in the year, 2003.

6. The objector filed a witness statement dated 6/5/2019 which she adopted as her evidence in Chief and she also relied on her Objection, Cross Petition and answer to the Petition dated 25/01/2019 and a further affidavit dated 20/8/2019.

7. The Objector called (OW2) who is a brother to the deceased. He said he was present when dowry was paid for the Objector.

8. The Objector also called HARRY LANGAT(OW3), a Cousin to the deceased who also said he was with the deceased and OW.2 when dowry was paid.

9. OW.4, DAVID KIPCHIRCHIR LANGAT, a Senior Chief at Mogogosiek Sub-Location where the Objector resides wrote a letter dated 4/1/2018 stating that the Objector is a widow of the deceased. He said the deceased and the Objector were staying together at Kapletin and they were blessed with three children.

10. OW.5, (RICHARD ARAP SOI), OW.6 (FLORENCE TOWETT) and OW.7(JOSEPH CHEPKWONY) said they attended the Traditional Ceremony known as “ratet” at the house of SALLY SOI who was the wife of OW.5. They said during the ceremony “Segutyet” was used to tie the note and further that there was traditional beer which was used during the celebration.

11. The Petitioners called eight (8) witnesses whose evidence was as outlined below;

12. The 1st Petitioner who testified as PW.2 said she got married to the deceased on 19/2/1972 at the D.C.’s Office at Nakuru. She produced her marriage certificate as an Exhibit. She said they had eight children.

13. The 1st Petitioner said she first saw the Objector after the demise of the deceased when the Objector filed a case at Bomet and obtained an ex parte Injunction to stop the funeral. She further stated that the objector was never married to and had no children with her husband, and that the objector and her children are strangers to her and her family.

14. PW.1 LILIAN KOSGEI who works with the Ethics and Anti-corruption Commission (EACC) produced a self-declaration form signed and submitted to EACC by the deceased dated 17/12/2012. The deceased did not indicate that he had children under the age of eighteen years.

15. PW.3 (ROBERT KIPLANGAT KORIR and PW.4 (MARORO GEOFREY) are Registrars of Civil Registration based at Bomet County and Litein Bureti Sub-county respectively. They produced records held at their respective offices in respect of the Objector’s children.

16. PW.5 BEN TOO LEITICH the Chief of Kaptoboiti Location produced a letter dated 2/1/2018. He stated in the letter that the deceased was survived by the 1st Petitioner and Eight Children namely: -

(a) EC;

(b) CK;

(c) RK;

(d) RK;

(e) JC;

(f) AY;

(g) EC; and

(h) SK

17. The Petitioners also called SB (PW.6) who is a nephew to the deceased. He said after the demise of the deceased, OW.2 (NK) told them that the Objector was purporting to be the wife of the deceased and wished to be included in the funeral and burial arrangements of the deceased

18. PW.6 further stated that a committee, which comprised of (OW2) Mr. NK amongst others was constituted to look into the alleged status of the objector, and after various meetings as a committee and after a meeting with the objector at Kericho Town, MR. NK informed them that the objector was not married to the deceased and that the ratet ceremony was never performed and that the objector also confirmed to the sub-committee that she was neither married to the deceased nor was a ratet ceremony ever performed.

19. PW.7, WILSON CHERUIYOT RONO who said he is a Kipsigis elder and an Expert in Kipsigis Customary Law, customs, rites and practices on marriage, stated that a bridegroom cannot attend dowry negotiations and further that Under Kipsigis Customary law, dowry cannot be paid and received before parties are formally married under the “Ratet” ceremony. He said during the “Ratet” ceremony, the couple tie each other with grass called “Segutyet”. He further stated that under Kipsigis Customary Law, the first wife must be consulted and must consent to the husband’s second marriage before a second wife is married.

20. The 2nd Petitioner testified as PW.8. He said he knew the Objector when she worked at [Particulars Withheld] School as an untrained teacher. PW.8 said he was also working there at that time. He said they joined the University of Nairobi at the same time. He said at one time he visited the Objector while at the University of Nairobi at her room and after that he never saw her again until after the demise of the deceased.

21. The 2nd petitioner further testified that there has never been any valid customary marriage between the deceased and the Objector and that the deceased is not the father of the objector’s children as alleged. He further stated that the children were never recognized by the deceased as his children during his lifetime and were never introduced to the deceased’s family.

22. I have considered the evidence adduced by both the Objector and the Petitioners and their witnesses. I have also considered the rival submissions filed by both parties and also by the interested party.

23. The duty of the probate(family) court is to ascertain the beneficiaries of the deceased herein EAK, determine what constitutes the Estate of the Deceased and how the Estate should be distributed.

24. The high court in re ESTATE OF SOLOMON MWANGI WAWERU (DECEASED) (2018) eKLR stated as follows;

“The duty of the Probate Court is to oversee the transmission of the estate of the deceased to his beneficiaries. Its jurisdiction is over the net estate of the deceased being that which he was free to deal with during his lifetime and its purpose is to ascertain the assets, liabilities, if any, the beneficiaries and the mode of distribution of the estate.”

25. Further, the High Court in re ESTATE OF HENRY KITHIA MWITARI (DECEASED) (2021) eKLR, also stated as follows;

“The duty of the Probate (Family) Court is to oversee the transition of the estate of a Deceased person to the genuine beneficiaries – to ascertain the assets and liabilities of the estate, identify the beneficiaries and set out the mode of distribution of the Estate.”

26. The issues for determination in this objection proceedings are as follows:-

(i) Whether the objector is a widow of the deceased.

(ii) Whether the objector’s children are entitled to a share of the deceased’s Estate.

(iii) Who should be appointed to administer the Estate of the deceased.

(iv) Who pays the costs of the objection proceedings?

27. On the issue as to whether the objector is a widow of the deceased, the objector said she got married to the deceased in the year, 2008 when “Ratet” ceremony was conducted. She also said she had stayed with the deceased since 1996 and they were blessed with four children.

28. The Objector also said one of the children died and was buried by the deceased at his [Particulars Withheld] School. She also said she had joint ventures with the deceased.

29. I find that there are glaring contradictions in the Objector’s evidence and the evidence adduced by her witnesses on how and when the Kipsigis traditional marriage was entered into by the Objector and the deceased.

30. The minutes purportedly taken during the dowry ceremony bore the date 2018 instead of 2012 in Minutes number 2 and 3 .The deceased is also said to have participated in his own dowry negotiations contrary to Kipsigis traditions.

31. This is a clear indication that the said minutes were likely to have been manufactured in the year, 2018. I find that the said minutes cannot be relied on to ascertain that dowry was paid for the Objector.

32. The Objector’s main witness on her marriage saga was OW2 MrNK who is a brother to the deceased. There is evidence that there was bad blood between OW2 and the immediate family of the deceased and therefore it is not safe to rely on the testimony of the said witness.

33. There is also evidence that OW2 Mr Nelson Keter did not know the Objector when she first showed up after the demise of the deceased and he was part of a sub-committee set for purposes of fact finding about the Objector but later he must have changed his mind about the issue and joined the Objector in making allegations that the Objector was married to the deceased under Kipsigis customary law.

34. The evidence of PW.7, WILSON CHERUIYOT RONO who said he is a Kipsigis elder and an Expert in Kipsigis Customary Law, customs, rites and practices on marriage, was that a bridegroom cannot attend his own dowry negotiations and further that under Kipsigis Customary law, dowry cannot be paid and received before parties are formally married under the “Ratet” ceremony.

35. The said evidence was not controverted by the Objector who produced minutes showing the deceased negotiated his dowry.

36. I also find that the Objector’s witnesses are not reliable since they gave conflicting evidence at Bomet High Court during the citation case and in the current objection proceedings.

37. During the citation case, CW. 5, MR. RICHARD ARAP SOI, testified that ROSEMARY CHEPNGENO KOROS and MR. ERIC KETER got married in the year 2000 under the Kipsigis Customary Law, and that the said ceremony was conducted at his homestead.

38. In the said Citation,CW. 6, ARAP KOECH also testified that the objector and Mr. Eric Keter, got married at his neighbor’s, Richard’s home. This contradicted other witnesses, who had stated that the Objector and Mr. Eric Keter had gotten married in the year 2012 at the objector’s father’s home.

39. During the objection proceedings, the objector brought three witnesses, OW.5, (RICHARD ARAP SOI), OW.6 (FLORENCE TOWETT) and OW.7(JOSEPH CHEPKWONY) who testified that the objector and the deceased Mr. EK, conducted a customary marriage ceremony in December of 2008 at the home of MR. RICHARD SOI, contradicting the objector’s assertion that she got married under the Kipsigis Customary Law in November of 2012.

40. I also find that the 1st and 2nd Petitioners did not know anything about the purported marriage of the deceased to the Objector. The property where the Objector stays was bought by the deceased and the Petitioners have the sale agreement dated 4/10/2003 which they produced as an exhibit.

41. I therefore find that the evidence by the Objector and her witnesses on how and when the Kipsigis customary marriage was conducted was contradictory and cannot be relied on to establish the existence of the said marriage.

42. The Petitioners vehemently opposed the Objector’s evidence. The 1st Petitioner said she was the sole widow of the deceased and further, she never saw the Objector while the deceased was still alive. She said she got married to the deceased on 19/2/1972 at the D.C.’s Office Nakuru and she produced their marriage certificate.

43. I find that the deceased’s marriage to the 1st Petitioner is a Monogamous marriage and it was still in subsistence when the Objector purported to marry the deceased under Kipsigis Customary Law.

44. The deceased therefore had no capacity to marry the Objector under the circumstances and the Objector is therefore not a widow of the deceased.

45. In re ESTATE OF LIHASI BIDALI (DECEASED) (2019) eKLR, the court stated as follows: “Under the marriage statutes a man who had contracted a previous statutory monogamous marriage, such as a Christian marriage, has no capacity to contract another marriage, under any system of marriage, during the pendency of the previous statutory monogamous marriage. If he does contract any other marriage despite pendency of the statutory monogamous marriage, that other marriage would not be valid or recognized in law so long as the man is alive. However, upon his death, and by virtue of section 3(5) of the Law of Succession Act, such subsequent marriages would be recognized for the purposes of succession under the Law of Succession Act, to the extent that they were contracted under systems of law that permit polygamy.”

46. However, in the instant case, the Objector cannot be regarded as a “wife” for purposes of succession under Section 3(5) of the Law of Succession Actsince her evidence on when and how the said marriage took place was contradictory and unreliable.

47. I find that this case can be distinguished from the case of re ESTATE OF LIHASI BIDALI (DECEASED)(supra) on the ground that the Objector did not prove to the required standard that she contracted a Kipsigis customary marriage with the deceased.

48. The Petitioners’ first witness (PW.1) LILIAN KOSGEI who works with the EACC produced a self-declaration Form submitted by the deceased on 17/12/2012. This was a short time after the deceased was alleged to have paid dowry for the Objector. The deceased did not even mention the Objector or any of her children who were under the age of 18 years in the said declaration form.

49. I therefore find that the objector has failed to establish on a balance of probabilities that she was married to the deceased.

50. What the Objector had with the deceased was a clandestine relationship that cannot qualify to be termed as a marriage even under the doctrine of presumption of marriage. The deceased’s immediate family would have known if the Objector was cohabiting with the deceased. The alleged long cohabitation with the deceased would have been known by the immediate family members.

51. Moreover, the deceased was already married under a monogamous system and he did not have capacity to marry the Objector.

52. On that basis, I rule that the Objector is not entitled to a share of the deceased’s Estate.

53. On the issue as to whether the Objector’s children are entitled to a share of the Estate. The Law in existence at the material time was that the children of the deceased are dependants of the Estate whether or not they were being maintained by the deceased immediately prior to his death. This is provided for under section 29(a) of the Law of Succession Act.

54. In re ESTATE OF THE LATE ANNELIES ANNA GRAFF (2019) eKLR; the high court stated as follows:

“Section 29(a) creates a special category of dependants who are dependants due to their relationship to a deceased. Here the wife, wives, former wife or wives and the children of the deceased are automatic dependants and it is immaterial whether or not they were being maintained by the deceased immediately prior to his death.”

55. The evidence pertaining to the birth certificates is contradictory and the same is not reliable. The Objector admitted on oath that none of the children were born at Chebilat as stated in the said birth certificates. The details in the records held at the respective Registries are different from those on the said birth certificates.

56. KCK, one of the Objector’s children had two birth certificates, the entry number on one of the certificates was xxxx and the date of registration is 20. 1.2012 while the other birth certificate bore the entry number xxxx and the date of registration is 23. 1.2012. Both certificates of birth indicate KCK’s place of birth as Chebilat.

57. KIC, another child of the Objector, also had two birth certificates bearing entry no’s xxxx and xxxx respectively. The information on both birth certificates differs in that, whereas the certificate bearing entry no. xxxx indicated that the child was born in Tenwek Hospital, Bomet, the date of birth as 11. 10. 2008 and date of registration as 20. 11. 2008, the certificate of birth bearing entry no. xxxx indicated the place of birth as Chebilat, the date of birth as 11. 10. 2010 and the date of registration as 25. 1.2012.

58. PW.3, MR. ROBERT KIPLANGAT KORIR, the Registrar of civil registration, Bomet county, testified that KIC was born at Tenwek Hospital. He also produced the birth certificate of the child, which indicated the date of birth as 11. 10. 2008 and the date the birth was duly registered as 20. 11. 2008.

59. PW.4, MR. MARORO GEOFERRY, the Registrar of civil registration at Litein Bureti sub-county, testified that KCK had double registrations. He produced a birth certificate no. xxxx registered on 20. 1.2012 and birth certificate no. xxxx with the date of registration as 23. 1.2012.

60. I find that the evidence of the Objector cannot be relied on to ascertain that the deceased was the father of the Objector’s children. However, if the Objector’s children were sired by the deceased, they are entitled to a share of the Estate.

61. I therefore find that it is necessary to ascertain the paternity of the Objector’s children in order to determine whether or not the said children are entitled to a share of the Estate of the deceased.

62. The Objector had made an Application dated 24/2/2020 seeking to have the body of the deceased exhumed for purposes of conducting a DNA test to establish the paternity of the Objector’s children. The said Application was held on abeyance.

63. I find that it is not necessary to exhume the deceased for purposes of conducting a DNA test. It is possible for sibling DNA to be conducted to establish whether the Objector’s children were sired by the deceased. That is the only way to put the paternity issue to rest.

64. I therefore direct that the 1st Petitioner’s children and the Objector’s children be subjected to DNA test to ascertain the issue of the paternity of the Objector’s children before this court can make a finding whether or not the said children are entitled to a share of the deceased’s Estate.

65. On the issue as to who should be appointed to administer the Estate of the deceased, I find that the 1st Petitioner who is a widow of the deceased ranks high on the priority list.

66. Under section 66 (a) of the Law of Succession Act, the order of priority has been set as follows;

“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;”

67. I therefore find that the 1st Petitioner is entitled to administer the Estate with the assistance of the other beneficiaries of the Estate.

68. Since the beneficiaries had agreed on the 1st and 2nd Petitioners herein, I direct that the two Petitioners be issued with the Grant of Letters of Administration.

69. Finally, on the issue as to who pays the costs of these proceedings, I direct that each party bears its own costs of the Objection proceedings. However, the costs of conducting the DNA be shared equally between the Objector and the Petitioners.

70. The Deputy Registrar of this court is directed to identify an independent service provider to conduct the DNA tests and to file the DNA Report in this Court within 45 days of this date.

71. This case will be mentioned after 45 days for the DNA Report and for final determination on the issue as to whether the Objector’s children are entitled to a share of the deceased’s Estate.

DELIVERED, DATED AND SIGNED AT KERICHO THIS 4TH DAY OF MARCH, 2022.

A. N. ONGERI

JUDGE