[2018] KEHC 1101 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KITUI

SUCCESSION CAUSE NO. 8 OF 2017

IN THE MATTER OF THE ESTATE OF JACKSON NDUVA KATHULA (DECEASED)

CECILIA MWELU NDUVA…………….……………………………..APPLICANT

VERSUS

TABITHA KALEKYE KIMEU…………….1ST PETITIONER/RESPONDENT

PATRICK MUTHUI KATHULA…….…….…………..………2ND PETITIONER

R U L I N G

1. Jackson Nduva Kathula(Deceased) died domiciled in Kenyaon 12th December, 2012. Letters of Administration Intestate in respect of his Estate were issued to Tabitha Kalekye Kimeuand Patrick Muthui Kathulaon the 26th February, 2015.

2. On the 27th November, 2015 Cecilia Mwelu Nduva(Applicant) filed summons for Revocation of Grant and sought to be included as the sole Administratix/beneficiary of the Estate of the Deceased. The application was canvassed by way of written submissions before Nyamweya J.sitting at Machakos High Court who made orders thus:

(i) The grant of letters of administration intestate issued herein to Tabitha Kalekye Kimeuand Patrick Muthui Kathula(Deceased), be and is hereby revoked.

(ii) The summons for confirmation of grant dated and filed herein by the Petitioners on 14th August, 2015is hereby expunged from the record.

(iii) The issue as to whether Tabitha Kalekyeis a legal wife of the Deceased shall proceed to hearing by viva voceevidence, and the Applicant and Petitioners shall file and serve their witness statements and/or affidavits of witnesses they shall call and within 60 days of the date of this Ruling.

(iv) There shall be no orders as to costs.

After delivery of this Ruling she transferred the Succession Causesuo mototo this Court (Kitui High Court) for hearing and determination.

3. The matter proceeded by way of viva voceevidence. In her testimony the Applicant stated that she married the Deceased in church. That marriage was monogamous therefore the Deceased could not have married another woman during the existence of the marriage. That she cohabited with the Deceased until his death hence the 1st Petitioner and her daughter were not recognized as part of the family. That she was excluded in planning the programme of burial of the Deceased as it was done in secrecy by the Petitioner and his siblings as she was engaged elsewhere collecting the Deceased’s belongings that were scattered at his place of works. She denied the allegation that the Petitioner’s daughter was her husband’s child since no DNA test had been conducted.

4. Further, the Applicant testified that she never divorced the Deceased and by the 26th March, 1996when she perused the pension’s file she was the Deceased’s next of kin and the Marriage Certificate had been filed. However, another form found its way into the file dated 6th December, 2011. According to her the document indicating that the 1st Petitioner was the next of kin was put on the file after the death of the Deceased.

5. In her response, the 1st Petitioner/Respondent stated that she was well known to the Applicant having met the Deceased a married man in 1992. That she cohabited with the Deceased from 1994and were blessed with an issue of the union, Esther Ngele Nduvawho was named after the Deceased’s mother. And that when the Deceased started ailing she lived with him at Umoja Estatewhere the Applicant visited them in August, 2012. And during funeral arrangements she was recognized as the wife of the Deceased. She called upon the Court to recognize her as a wife and dependant of the Deceased. On cross examination she acknowledged the fact that there was a Marriage Certificate issued to the Applicant and Deceased when they married and they did not divorce.

6. Regarding the next of kin form she stated that she took to the office a copy of the Death Certificate of the Deceased after his demise but she could not tell if she was made an alternative next of kin.

7. Esther Ngele Nduvawho testified stated that the Deceased, her father provided for her basic requirements and he lived with them at Umoja Estate.

8. At the close of the case, both Counsels filed written submissions which they highlighted. It was submitted by learned Counsel for Applicant, Mr. Mutinda Kimeuthat the 1st Petitioner was not a legal wife of the Deceased because he had married in church, a marriage that was strictly monogamous and was not dissolved. That the Deceased having lacked the capacity to marry another woman, a presumption of marriage could not arise; In that respect the case of Machauni vs. Vernoor (1985) eKLRwas cited. On the issue of cohabitation, the Applicant relying on the case of Njoki vs. Mutheu (1985) KLR 27urged that cohabitation of habit and repute in the absence of consent cannot bring in the missing element(s).

9. It was submitted by Mr. Awiti,learned Counsel for the Respondent that it was not in dispute that the 1st Petitioner and the Deceased were not formally married but a presumption of marriage existed by virtue of long cohabitation and existence of a child between them. He relied on the case of Hortensia Wanjiku Yawe vs. The Public Trustee Nairobi CA CA No. 13 of 1976in that regard; and in M. W. M. vs. W. E. L (2017) eKLRwhere the case of Christopher Nderi Gathambo vs. Samuel Muthui Munene Nairobi High Court Civil Case No. 1372 of 2001was quoted. In the case the Court observed thus:

“The claim is (presumption of marriage) on the basis of cohabitation and friendship, agreement and love. They lived together in Nairobi and had a daughter together….. anyone of those actions cumulatively prove the parties intended to marry and held themselves as married hence presumption.”

10. On the issue of the Deceased having lacked capacity to marry following the monogamous marriage that he contracted, it was submitted that in the case of Agnes Katto Njoroge vs. Alice Wakiini Wachira (2008) eKLRit was stated that:

“.... As for now I need not reiterate the fact that for purposes of succession the court will take cognizance of second and later unions even where the deceased had a valid subsisting marriage. Such is the position which is clearly laid down in section 3(5) of the Succession Act Cap 160 of the Laws of Kenya which provides that ‘notwithstanding the provisions of any other written law, a woman married under a system of law which permits polygamy is, where her husband has contracted a previous or subsequent monogamous marriage to another woman, nevertheless a wife for the purposes of this Act, and in particular sections 29 and 40 thereof, and her children are accordingly children within the meaning of this Act.”

11. In a rejoinder Mr. Mutinda Kimeuargued that Section 3(5)of the Law of Succession Actcould only be applicable where a woman married under a system which permits polygamy which was not the case herein.

12. The issue for determination pursuant to the Ruling of Nyamweya J.is:

· Whether Tabitha Kalekye Kimeu(1st Petitioner) is a legal wife of the Deceased.

13. This is a matter where the Applicant and the Deceased entered into a voluntary union on the 11thday of May, 1991. Their marriage was solemnized at A.I.C. Ziwani Churchin Nairobiunder the African Christian Marriage and Divorce Act (Cap 151). This fact is not in dispute, therefore their marriage was monogamous that was solemnized in accordance with the rites of a Christian Denomination. Either of them was therefore prohibited from contracting another marriage.

14. It is the contention of the Respondent/1st Petitioner that she qualifies to be the wife of the Deceased and his Dependant because they had an association that resulted into an intimate relationship, cohabited and had a child, Esther Ndele Nduvawho was named after the Deceased’s mother. She adduced in evidence a Birth Certificate of the girl bearing the name of the Deceased as her father.

15. Section 3(5)of the Actprovides thus:

“Notwithstanding the provision of any other written law, a woman under a system of law which permits polygamy is, where her husband has contracted a previous or subsequent monogamous marriage to another woman, nevertheless a wife for the purposes of this Act, and in particular Section 29 and 40 thereof, and her children are accordingly children within the meaning of this Act.”

16. The operating words here are a woman married under a system of law which permits polygamy. A system of law that permits polygamy would be envisaged to be a marriage conducted in accordance with the African Customary Law since it has not been insinuated that parties herein professed the Islamic religion. Evidence adduced by the 1st Petitioner did not suggest that they married under the customary law. Her contention is that there was long cohabitation. It is for that reason that she relied on the Hortensia Wanjiku Case (Supra)where the Court considered circumstances of the parties cohabitation. This therefore brings us to the question whether indeed the 1st Petitioner was a cohabitee and if she would benefit from the law as provided by Section 3(5)of the Act.

17. The argument of the 1st Petitioner was that she was acknowledged by relatives of the Deceased as his second wife, hence being included in the funeral programme. The Applicant on the other hand argued that the programme was prepared in secrecy hence she came to know of the inclusion on the burial date. The Applicant called their area Chief Augustine Muthinzi Kasiliaas a witness who stated that he arbitrated upon a case involving the parties herein and other family members on the 22nd March, 2013. The issue was who was the rightful heir to the Estate of the Deceased. He concluded that the Applicant was the right beneficiary of the Estate and gave her a letter to that effect. The 1st Petitioner stated that the Deceased used to visit her mostly over the weekends. That she visited his home and he also visited her home. In the case of NUFR vs. MSC HCCC No. 57 of 2011. It was stated that; the Applicant had the burden of marshalling evidence from which the Court could decide to declare existence of a marriage from prolonged cohabitation or not. Further, that she did her best in adducing such evidence but unfortunately the element of reputation of what may be referred to as the community view of cohabitation fell short. That evidence of community element can only be adduced by members of the community themselves.

18. None of the relatives of the Deceased were called as witnesses to confirm if indeed there had been long cohabitation between the 1st Petitioner and the Deceased. Such evidence was crucial. The alleged witnesses should have been available to be cross examined. (See Re Estate of Mbiyu Koinange; Rule 64 of the Probate and Administration Rules).

19. It was averred by the 1st Petitioner that during the Deceased’s lifetime he filled a next of kin form where he listed both the Applicant and herself as the next of kin. The document was dated 6th December, 2011. However, the Applicant adduced in evidence a next of kin form filled by the Deceased dated 26th March, 1996which gave particulars of the next of kin as Ciciliah Mwelu Musau(wife) and an alternate next of kin as Patrick Muthui Kathula(brother). There is a second next of kin form that was delivered to the Office of the District Commander, Kieni West by the 1st Petitioner per what was expressly noted on the 21st January, 2012a form that was not in the main file of the Deceased which had the names of the Applicant as the next of kin and that of the 1st Petitioner as an alternate next of kin. On cross examination the 1st Petitioner stated that she took the document to the office after the death of the Deceased but she did not divulge how she acquired it.

20. From evidence adduced it has been demonstrated that the 1st Petitioner herein is not a sincere person therefore may not be believed. It was within her knowledge that the Deceased was legally married to the Applicant but she approached the Court having falsely sworn an affidavit on the 10th June, 2014where she deposed that the Deceased was survived by a wife (Tabitha Kalekye Kimeu)and a daughter (Esthere Ndele Nduva).Such an insincere person cannot be believed. It may even be difficult to believe that the child born out of wedlock to her was actually sired by the Deceased.

21. From the foregoing I find that the 1st Petitioner, Tabitha Kalekye Kimeuwas not the Deceased’s legal wife. If her daughter is indeed the daughter of the Deceased which should be subject to proof, she is a Dependant of the Deceased pursuant to the provisions of Section 29of the Act.

22. It is so ordered.

Dated, Signedand Deliveredat Kituithis 27thday of November,2018.

L. N. MUTENDE

JUDGE