[2023] KEHC 24988 (KLR)

In re Estate of Jacob Juma (Deceased) (Succession Cause 1103 of 2016) [2023] KEHC 24988 (KLR) (Family) (3 November 2023) (Judgment)

Neutral citation: [2023] KEHC 24988 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause 1103 of 2016

MA Odero, J

November 3, 2023

IN THE MATTER OF THE ESTATE OF JACOB JUMA (DECEASED)

Between

Miriam Wairimu Wambugu

1st Petitioner

Anne Wanjira Githenya

2nd Petitioner

and

Lydia Tabuke

Protestor

Judgment

1. Before this Court for determination is the Protest Against Confirmation of Grant filed by Lydia Tabuke (hereinafter ‘the Protestor’) vide the Affidavit of Protest dated 17th April 2018.

2. The Administrators of the Deceased Miriam Wairimu Wambugu and Anne Wanjira Githenya opposed the protest/objection through their Replying Affidavit dated 14th May, 2018.

Background 3. This succession cause relates to the estate of the late Jacob Juma (hereinafter ‘the Deceased’) who died intestate on 5th May, 2016. A copy of the Death Certificate Serial Number xxxx is annexed to the Affidavit of Protest.

4. Following the demise of the Deceased his window Miriam Wairimu Wambugu and Anne Wanjira Githenya (a family friend) petitioned the court for Grant of letters of administration Intestate. The Grant was issued to the two on 30th May, 2017.

5. The Administrators then filed a summons dated 3rd October, 2017 seeking to have the Grants confirmed. The Protestor then filed her objection to the Confirmation of Grant on grounds that she and her two (2) children had been excluded as beneficiaries to the estate of the Decease. The Protestor claimed that she was also a wife of the Deceased.

6. The Protest was heard by way of vive voce evidence. The Protestor called three (3) witnesses in support of her case whilst the Administrators called two (2) witnesses.

7. The matter was fully heard by Hon. Lady Justice Achode (as she then was). Upon the elevation of the trial judge to the Court of Appeal, this court took over the matter for purpose of preparing the Judgement.

The Evidence 8. The Protestor Lydia Tabuke testified on her own behalf. She relied entirely upon her witness statement dated 18th May, 2018.

9. The Protestor stated that she got married to the Deceased in the year 2005 under Luyia Customary Practices. That their union was blessed with two (2) children being:-(i)RIJ – Born on 6th July, 2006(ii)JJ – Born on 9th April, 2008

10. The Protestor stated that she hails from Busia County whilst the Deceased was from Bungoma County. That the Deceased visited Protestor’s father in the rural home for introduction in the year 2005. That in the year 2010 dowry negotiations were conducted by the Deceased brothers who visited her family home for that purpose. The Protestor states that neither she nor the Deceased were present during those dowry negotiations.

11. The Protestor states that in the initial period of the marriage she resided in the USA and they had what is commonly called a ‘long-distance marriage’. That she later moved to Johannesburg South Africa. The Protestor told the court that whenever she was in Nairobi she would cohabit with the Deceased at various homes in the city.

12. The Protestor stated that the Deceased was a polygamous man and she was aware that he had other wives with whom he had children namely:-- PL- WJ- MW

13. The Protestor stated that following the demise of the Deceased she instructed her Advocates to file a Petition for Grant of letters of Administration. That however, they learnt that the Administrators had already Petitioned for Grant.

14. That the Administrators later filed a summons for confirmation of Grant but upon perusing the said summons the Protestor realized that she and her two (2) children had been excluded as beneficiaries. She then filed this Affidavit of Protest.

15. PW2 FSJ is the elder brother to the Deceased. PW2 stated that he knows the Protestor and states that she had two (2) children with the Deceased. He recognizes the Protestor as the 2nd Wife of the Deceased.

16. PW2 relied entirely upon this witness statements dated 12th April, 2022 in which he confirmed that his brother (the Deceased) got married to the Protestor under Luhyia Customs in the year 2005.

17. PW2 went on to state that in the year 2010 as directed by the Deceased he led a delegation to the home of the Protestor where dowry negotiations were conducted. That Agreement was reached on the amount of dowry and that he left cash of Kshs 100,000/= he had been given by the Deceased as a down payment. That he later delivered three (3) cows and the balance at the time of Deceased’s death.

18. According to PW2 when the Deceased passed away his mother sent word to the Protestor’s father as required by Luhyia Customs – PW2 asserts that dowry payment having now been completed, the Protestor is recognized as the second wife of the Deceased.

19. PW3 Alphonsus Omondi Tabuke is the father of the Protestor. He relied upon the written statement dated 12th April, 2022 PW3 confirms that in the year 2005 the Protestor came to his home with the Deceased for an introductory visit. That he welcomed the Deceased who expressed his intention to marry his daughter.

20. PW3 states that later in the year 2010 a delegation led by the elder brother of the Deceased came to his home. That he welcomed them together with a delegation of elders from his Bakhero Clan. That dowry negotiations were conducted and an agreement was reached, and the Deceased’s brother left a cash down payment of Kshs 100,000/=. That since then the brother of Deceased has continued paying the balance of the dowry in instalments.

21. PW3 confirmed that following the demise of the Deceased he was called to the Deceased’s home where the Deceased’s mother committed to completing the dowry payments.

22. PW3 confirms that the Deceased married his daughter in accordance with Luyia Customary Practice and that the couples bore two (2) children together.

23. PW3 further stated that he was aware that the Deceased was polygamous man who had other wives who were all introduced during the burial. He states that he attended the burial of the Deceased as an in-law.

24. PW4 Humpreys Makokha Barasa is a retired chief of Khasoko location in Bungoma County. PW4 states that he knows the family of the Deceased well as they hail from the same location. He states that he wrote the letter dated 20th May 2016 indicating that the Deceased had left four (4) widows and several children.

25. The 1st Administrator Miriam Wairimu stated that she was the widow of the Deceased. She relied upon her Replying Affidavit dated 14th May, 2018.

26. The Administrators categorically deny that the Deceased was polygamous and in particular deny that the Deceased had ever married the Protestor, Pamela Lobulu or Wahida Juma. They state that the Protestor’s claim that she is a widow of the Deceased is a mere afterthought. That the Protestor has no authority to represent the other alleged widow.

27. The Administrators however, do concede that following DNA testing they do accept and recognize, that the two (2) children of the Protestor were sired by the Deceased.

28. The Administrators state that at no time did the Deceased ever inform his widow that he had married another wife. The 1st Administrator states that she only met the Protestor during the post mortem examination when the Protestor introduced herself as a ‘family friend’

29. The Administrators state that the Protestor is a stranger to the estate and is not entitled to benefit there from – they pray that the Protest be dismissed entirely.

30. DW2 DR Denis Khanati Shila Bukha is a lecturer at the Institute of Anthropology and Gender Studies in Nairobi. He told the court that he has been an Anthropologist for 11 years at the University of Nairobi. He presented to the court a document dated 7th September, 2018 detailing Luhyia Cultural Practices and recognition of Luhyia Customary Marriages.

31. According to DW2 unless all the cultural practices have been observed, a woman cannot be said to have been fully married.

32. At the close of oral evidence parties were invited to file and exchange their written submissions. The Protector filed the written submissions dated 20th September, 2022, whilst the Administrators relied upon their written submissions dated 6th December, 2022.

Analysis and Determination 33. I have carefully considered the Affidavit of Protest filed in this matter the Reply filed thereto the evidence on record as well as the written submissions filed by both parties. The only two issues which arise for determinations are(i)Whether the Protestor was a wife to the Deceased.(ii)Whether the protestors minor children are beneficiaries to the estate of the deceased.

34. It is pertinent to note that there existed a second Protestor in this matter being one Kenneth Chuaga Munene who objected to the distribution of the parcel of land known as Title Number Bungoma Township xxxx.

35. However, this party reached an agreement with the estate vide the consent dated 4th February, 2019.

36. Similarly, the Protest dated 5th March, 2020 filed by John Patrick Machira an Advocate of the High Court of Kenya was settled pursuant to a consent dated 12th October, 2020

(i) Whether the two children of the Protestor are beneficiaries to the estate of the Deceased. 37. The Protestor testified that she had a relationship with the Deceased which resuLydia Tabukeed in the birth of two (2) children a boy and a girl born in 2006 and 2008 respectively. The Protestor complained that the two (2) who were beneficiaries of the estate had been excluded in the proposed mode of distribution of the estate, set out in the summons for confirmation of Grant dated 3rd October, 2017.

38. Following a DNA test conducted by the Government Chemist the Administrators concede that the two (2) minors were sired by the Deceased. The original copy of the DNA results dated 7th July, 2021 prepared by H K – Sana Government Analyst confirms that there is a 99. 9% probability that the Deceased is the biological father of both children.

39. On this issue there exists no further controversy. I therefore, find that IAJ and JJ are both the biological children of the Deceased. The Administrator under cross-examination concedes to this fact when she says “I only confirmed that the children belonged to the Deceased after DNA was done.” The two (2) minors are therefore, heirs to the estate in line with Section 29 of the Law of Succession Act Cap 160 Laws of Kenya.

(ii) Whether the Protestor is a wife of the Deceased 40. The Protestor testified that she met the Deceased in the year 2001 and they became friends. She states that in the year 2005 the Deceased made an introductory visit to her rural home in Busia whilst in the year 2010 the family of the Deceased led by his elder brother visited the Protestors family for dowry negotiations.

41. In law the burden of proof lies on the party who asserts the existence of a fact or set of facts Section 107 of the Evidence Act Cap 80, Law of Kenya Provides as follows:“107(1)Whoever desires any court to given judgment as to any legal or liability dependent on the existence of facts which he asserts must prove that those facts exist.(2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.”

42. In AWN v JKR & another (2005) IEA the court of Appeal stated that:-“As a general proposition under Section 107 (1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however, the evidential burden that is placed upon any party the burden of providing any particular fact which he desires the court to believe in its existence which is captured in Sections 109 and 112 of the Act”.

43. The Protestor asserts that she got married to the Deceased in the year 2010 under Customary law. The question then is whether the evidence on record points to the existence of a customary marriage as claimed.

44. In the case of Hortensia Wanjiku Yawe v The Public Trustee Civil appeal No13 of 1976 the court laid down the principles regarding proof of customary marriage as follows:-i.The onus of proving customary law marriage is generally on the party who claims it.ii.The Standard of proof is the usual one for a civil action; namely, on the balance of probabilities;iii.Evidence as to the formalities required for a customary law marriage must be proved to that evidential standard.

45. Section 3 of the Marriage Act 2014 defines a Marriage as:-“the voluntary union of a man and a woman whether in a monogamous or polygamous union and registered in accordance with the Act.”

46. Part V Section 43 of the Act provides for customary marriages as follows:-“(1)A Marriage under this part shall be celebrated in accordance with the customs of the communities of one or both of the parties to the intended marriage.(2)Where the payment of dowry is required to prove a marriage under customary law, the payment of a token amount of dowry shall be sufficient to prove a customary marriage. [own emphasis]

47. The evidence of the Protestor regarding the conduct of a customary marriage between the Deceased and herself was corroborated by PW2 who was a brother to the Deceased and PW3 who was the father of the Protestor.

48. PW2 told the court that he is the eldest living brother of the Deceased and that in the year 2010 upon being directed by Deceased he led a delegation to the home of the Protestor for dowry negotiations PW2 produced as an exhibit a Dowry Agreement or Mapatano ya Mahari Kati ya Eng Jacob Juma xxxx na Dr Lydia K Jabuke xxxx (Pexb 9).

49. The Agreement which is undated bears the signatures of those who were present and indicates what terms were agreed on. The document also indicates that the Protestors father received cash Kshs 100,000/= cash (being Kshs 70,000/= for the father and Kshs 30,000/= for the mother), as well as- Three (3) cows- Overcoat- Gumboots- Blanket

50. The balance of items yet to be received was:-- Ten (10) cows- I sheep- Kshs 400,000/=

51. PW3 Alphonsus Tabuke who is the father of the Protestor confirmed having signed the dowry Agreement. PW3 also confirms that a delegation from the Deceased’s family led by the elder brother of the Deceased did come to his home for dowry negotiations.

52. PW3 states that he also assembled clan elders from his Bakhero clan to receive the visitors. He further confirms that he received cash Kshs 100,000/= as down payment.

53. There is evidence that neither deceased nor the Protestor attended the dowry negotiations. Does this negate the marriage. I would not think so. In African cuLydia Tabukeure a marriage is considered more of a union between families or clans as opposed to being a union between the two individuals concerned. In any event PW2 told the court that he went to the home of the Protestor upon instructions from his brother and that it was the deceased who gave him the Kshs 100,000/= to deliver on that day. The witness stated that it was not essential that the Deceased be present and that the Protestor being a woman was not required to be present during dowry negotiations.

54. It is highly unlikely that PW2 would make a trip to a neighbouring county to pay dowry for on behalf of his brother unless he had been instructed by the Deceased to do so.

55. PW3 the father of the Protestor told the court that even after the Deceased passed away her family undertook to complete the dowry payment. Both PW2 and PW3 confirm that the Deceased married the Protestor in accordance with their Luhyia customary rites and practices and both recognize her as the second wife of the Deceased.

56. The chief of Khasoko location from which the Deceased hailed. PW4 told the court that he knew the Protestor as a wife of the Deceased. The Chief confirmed that he did author the letter dated 20th May, 2016 in which he named the Protestor Lydia Tabuke as the 4th widow of the Deceased.

57. The 1st Administrator Miriam Wairimu asserts that she was the only widow of the Deceased. She states that at no time did the Deceased ever inform her that he had married another wife. This certainly would not be the first time that a man marries another wife without informing his other wife (wives). The lack of information does not negate the fact a marriage occurred.

58. It is not disputed that the 1st Administrator was a wife of the Deceased. The Protestor in her evidence readily admits that she knew that ‘Miriam’ was the Deceased’s wife and she had no problem with that fact. Likewise, both PW2 and PW3 state that they were aware that the Deceased had a first wife called ‘Miriam’. The witnesses all state that the Deceased was a polygamous man.

59. The court must ask itself whether any legal bar existed to the Deceased marrying the Protestor.

60. It would appear that the Deceased married ‘Miriam’ under customary law. Indeed, in her evidence ‘M’ told the court that ‘S’ (PW2) who was the elder brother to the Deceased attended her dowry negotiations or ‘Ruracio’.

61. There is no claim that the Deceased ever entered into a statutory marriage with ‘M’ or with any other woman. Neither has M produced as evidence any Marriage Certificate.

62. Having married Miriam under Kikuyu customary law their marriage was deemed potentially polygamous and all such the Deceased was free to marry another wife or wives. In the circumstances I find Deceased had the legal capacity to marry.

63. PW2 Dr Shilabukha gave the court his opinion as an expert regarding Traditional Courtship and Marriage among Luhyia people of Western Kenya. The said documents detailed several rites that ought to be conducted in order to constitute a valid marriage.

64. According to PW4 an introduction ceremony cannot be merged with bride price negotiations as that he declared, would not be a marriage. PW4 also laid much emphasis on the ceremony of escorting a bride to her marital home after payment of the first installment of the bride price. PW4 went so far to declare that “If the man dies after paying bride price but before the girl is escorted to his home there is no marriage…” and states with finality that ‘certain elements’ of the Luhyia customary marriage rites were not conducted in this case thus in his opinion no valid customary marriage existed between the Deceased and the Protestor.

65. PW4 testified and gave his opinion as an ‘expert’ in Luhya cultural Norms and Practices with respect to marriage. However, it has been stated severally that the evidence of an expert witness is not binding on the court.

66. In the Indian Case of Titli v Jones (AIR) 1934 the court stated that:-“…….the real function of an expert is to put before the court all the materials, together with reason which induce him to come to that conclusion, so that the court, aLydia Tabukehough not an expert may from its own Judgement by its own observation of those materials.”

67. In the Kenyan Case of Stephen Kinini Wang’ondu v The Ark Limited (2016) eKLR it was held that:-“The fundamental characteristic of expert evidence is that it is opinion evidence. Generally speaking, lay witnesses may give only one form of evidence, namely evidence of fact. To be practically of assistance to a court, however, expert evidence must also provide as much detail as is necessary to allow the court to determine whether the expert’s opinions are well founded.While the test for admissibility of expert evidence differs from jurisdiction to jurisdiction judges in all jurisdictions face the common responsibility of weighing expert evidence and determining its probative value. This is no easy task. Expert opinions are admissible to furnish courts with information which is likely to be outside their experience and knowledge. The evidence of exerts has proliferated in modern litigation and is often determinative of one or more central issues in a case.Expert testimony, like all other evidence, must be given only appropriate weight. It must be as influential in the overall decision-making process as it deserves; no more, no less. To my mind, the weight to be given to expert evidence will derive from how that evidence is assessed in the context of all other evidence. Expert evidence is most obviously needed when the evaluation of the issues requires technical or scientific knowledge only an expert in the field is likely to possess. However, there is nothing to prevent reports for court use being commissioned on any factual matter, technical or otherwise, providing; it is deemed likely to be outside the knowledge and experience of those trying the case, and the court agrees to the evidence being called.While there are numerous authorities asserting that expert evidence can only be challenged by another expert, little has been said regarding the criteria a court should use to weigh the probative value of expert evidence. This is because, while expert evidence is important evidence, it is nevertheless merely part of the evidence which a court has to take into account. Four consequences flow from this.Firstly, expert evidence does not “trump all other evidence”. It is axiomatic that judges are entitled to disagree with an expert witness. Expert evidence should be tested against known facts, as it is the primary factual evidence which is of the greatest importance, it is therefore necessary to ensure that expert evidence is not elevated into a fixed framework or formula, against which actions are then to be rigidly judged with a mathematical precision.m Secondly, a judge must not consider expert evidence in a vacuum. It should not therefore be “artificially separated” from the rest of the evidence. To do so is a structural failing. A court is findings will often derive from an interaction of its views on the factual and the expert evidence taken together. The more persuasive elements of the factual evidence will assist the court in forming its views on the expert testimony and vice versa. For example, expert evidence can provide a framework for the consideration of other evidence.Thirdly, where there is conflicting expert opinion, a judge should test it against the background of all the other evidence in the case which they accept in order to decide which expert evidence is to be preferred.Fourthly, a judge should consider all the evidence in the case, including that of the experts before making any findings of fact, even provisional onces”. [own emphasis]

68. Finally, on this point in the case of Shah and another v Shah and others (2003), EA it was held that:-“The opinion of the expert witness is not binding on the court, but is considered together with other relevant facts in reaching a final decision in the case and the court is not bound to accept the evidence of an expert if it finds good reasons for not doing so”

69. PW4 insists that it is only after all the steps he enumerated have taken place that a marriage can be deemed to have taken place in accordance with Luhyia customs. With respect I do not agree cuLydia Tabukeure and customs are dynamic and will be adapted to suit the prevailing circumstances. Whilst the steps to constitute a customary marriage are elaborate and indeed colourful it is unlikely that in modern living situations where one or both of the parties to the marriage live and work away from the rural home all those steps will be observed.

70. In this case there is evidence that the Deceased made an introductory visit to the home of the Protestor and declared his intentions. Thereafter dowry negotiations took place and payment of part of the dowry was made. The witnesses have testified that this dowry was paid in the form of both livestock and cash. Whilst I am no expert in customary law in my view that the steps taken were sufficient to prove the existence of a customary marriage between the Deceased and the Protestor.

71. Eugene Cotran in his Restatement of African Customary Law; The law of Marriage and Divorce Vol. 1 Page 53 set out the essential elements of a customary marriage in the Luhyia Communities as follows:-“(i)Capacity to marry(ii)Marriage consideration also known as ‘Bukhwi’iv.Consent of the parties and their respective familiesv.Cohabitation.

72. In this case there was consent of both parties and their families to the marriage. As I have state earlier the Deceased had the legal capacity to marry the Protestor. Dowry was paid and couple had cohabited in Nairobi bearing two (2) children together.

73. The key element of a Luhyia Customary Marriage according to ‘Cotran’ is payment of the ‘Bukhwi’ or Marriage consideration commonly referred to as ‘dowry’. A Marriage under Luhyia Customary law cannot be said to be valid unless the ‘Bukhwi’ (Dowry) has been paid either in form of cash or livestock. The ‘Bukhwi’ can be paid installments.

74. In his Restatement of African Customary Law at Page 50 Cotran states as follow:-“1. Definition of marriage considerations (Bukhwi):Bukhwi is a payment or payments of cattle, other livestock or other property rendered by or on behalf of the bridegroom to the father (or other guardian) of the bride, which is necessary for the validity of the marriage and to establish the affiliation or legal control of the issue of the union, and which may be repayable in whole or in part on the dissolution of the marriage.Bukhwi must be distinguished from other collateral payment and gifts made at the time of marriage.”At Page 52 it is stated:-“7Effect of non-payment of marriage consideration:-No valid marriage can arise in Luhya law if no Bukhwi is paid. However, a marriage will arise if Bukhwi is partly paid. The family of the wife may sue the husband for the payment of unpaid Bukhwi. The balance of unpaid Bukhwi at the death of a husband becomes the responsibility of the Omulindi.” [own emphasis]

75. I am satisfied that the above elements are all shown to have been present in this case. PW3 the father to the Protestor confirmed that he received livestock (cattle) as dowry payment. Under cross-examination PW3 says:-“They showed me the cattle and we arranged to bring them to my home. When they brought the cattle home I received them……”PW3 goes on to state““Jacob Juma died in 2016 by then I had already received dowry from the brother and mother…”

76. From the evidence on record it had been proved that the Deceased had a relationship with the Deceased which resuLydia Tabukeed in the birth of new children. PW2 the brother to Deceased and PW3 the father to the Protestor both testified that the Deceased married the Protestor under Luhyia customary norms. Their evidence was consistent and was not shaken by cross-examination. The two (2) witnesses were elderly gentleman and would have had no reason to give false evidence in court.

77. The Administrator raised the issue that the Protestor was not recognized as a wife of the Deceased in the official obituary. Firstly the fact of marriage is not proved through mention in an obituary. Secondly both the Protestor and PW2 (the brother to the Deceased) told the court that they were not involved in the preparation of the obituary.

78. The question also arose on to why if the Protestor was a wife the Deceased did not build her a house in the rural home. Once again I find that failure to build a rural home for the Protestor does not negate the existence of a marriage. Many couples do take time to raise the necessary finances required before embarking on setting up a rural home.

79. Taking into accounts the totality of the evidence I am satisfied that there is proof on a balance of probability that Deceased married the Protestor under Luhyia customs making the protestor a wife to the Deceased. Section 29 of the Law of Succession Act which provides as follows.“For the purposes of the part, “dependant” means –a.The wife or wives, or former wife or wives, and the children of the Deceased whether or not maintained by the Deceased immediately prior to his death”.

80. Finally, this Protest succeeds – this court finds and declares that the Protestor Lydia Tabuke is a wife to the Deceased.

81. Accordingly, the Protestor and her two (2) children are beneficiaries to the estate of the Deceased and ought to be included in the distribution of the same.

82. Since this court has found that the Deceased was polygamous I deem it proper that each house be represented in the Administration of the Estate. I therefore direct that Grant be amended to include the Protestor Lydia Tabuke as an Administrator to represent the 2nd House and to take care of the interests of her minor children.

83. The Administrators are directed to file an Amended Summons for confirmation of Grant to include the Protestor and her two (2) children in the distribution of the estate. This being a family matter each party will meet their own costs.

Conclusion(i)This Protest succeeds. The Protestor Lydia Tabuke is declared to be a widow to the Deceased Jacob Juma and therefore a beneficiary to his estate.(ii)The two (2) minors:a.RIAJb.JJAre both declared to be the biological children of the Deceased and therefore beneficiaries to his estate.(iii)The Grant issued on 30th May 2017 is to be amended to include the Protestor Lydia Tabuke as an Administrator representing the second House.(iv)The Administrators to file a fresh summons for confirmation of Grant within Sixty (60) days and amend the mode of distribution of the estate to take into account the Protestor and her minor children.vi.This being a family matter each side will bear its own costs.

DATED IN NAIROBI THIS 3RD DAY OF NOVEMBER, 2023. MAUREEN A. ODEROJUDGE