[2017] KEHC 2626 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KITALE

SUCCESSION CAUSE NO. 250 OF 2015

IN THE MATTER OF THE ESTATE OF JAMES EKAI MARUK-DECEASED

NIMO ABBA MOHAMMED.....................................1ST PETITOIPONER

SAID AMIN MARUK …..............................................2ND PETITIONER

VERSUS

HULD BOSIBOR MOGAKA …...................................1ST APPLICANT

LOCHWA LOKANG LOKIDOR ….............................2ND APPLICANT

J U D G M E N T

1. By her summons for revocation of grant dated 25th August 2016 the applicant/plaintiff prays that the letters of administration intestate issued to the Respondent on 9th March 2016 be revoked on the grounds that the same were issued secretly without her consent or knowledge and further that the same were obtained in bad faith without disclosing material particulars to the court.

2. When the matter came up for directions the court ordered that the same be heard by way of viva voce evidence.

The applicant became the plaintiff and the respondent the defendant.

3. PW1 Huldah Bosibori Mogaka testified that the deceased was her husband having married him on 2009 at Lokichar under the tenets Turkana customary law. She went ahead and produced a letter dated 28/11/2009 signed by the chief and 4 elders. She said that out of their union they had one child called Cecilia Dekeyo Maruk who was born on 17/4/2014 .

4. She testified further that they stayed with the deceased till they got a motor vehicle accident along Garrisa Nairobi road. She produced the police abstract form to back up her claim. The deceased was subsequently burried in Lokichar in the absence of the defendant.

5. She stated that she only got to know the existence of this case when she was called by the D.C. Lokichar who advised the two of them to sort their issues in court.

6. On cross-examination she stated that her parents have not been given any dowry and neither was there any written agreement with the deceased. She said that the deceased went to her home before he died in the company of Ismael and Richard in the year 2014. He came to her home to identify himself to her father. She further stated that the deceased had build a home at Lokichar for her though she did not stay there.

7. Asked about the certificate of birth for the child she said that the same was obtained on 27th February 2015 after the deceased had died.

8. PW2 Ismael Ahmed Dahir testified that the deceased was his brother in law having married his cousin. He said that the deceased had both the plaintiff and the defendant as his wives. The first wife had 3 children and the second wife one child. He said that the deceased paid dowry for the first wife and performed Turkana Customary ceremony for the plaintiff. In attendance was Robert Maruk and the brother to the plaintiff. He however could not recall the dates.

9. On cross-examination he said that he has been to the plaintiff's come twice but cant recall the year. He said that no dowry has been paid for the plaintiff and he has never seen any agreement concerning the dowry.

10. PW3 Lochi Regina LokidEr is the mother to the deceased. She testified that the deceased was married to 2 wives, the plaintiff and THEdefendant and had 3 children with the defendant. She however could not recall when he married the 2nd wife.

11. On cross-examination she said that she did not know the names of the plaintiff's parents and she has never seen them. Neither has she sent his son Robert and Ibrahim to the plaintiff parents. She explained how the Turkana marriage ceremony is performed before dowry is paid.

12. Upon the plaintiff closing her case the defendant Nimo Abbas Mohammed testified that she was married to the deceased in 1994 in Garrisa. The deceased paid Kshs 60,000/- to her parents as dowry although he was yet to pay one cow and a calf. They had 4 children with the deceased. They stayed in different places as the deceased job demanded till he had the road accident on 17th February 2017 but died on 18th February 2017.

13. She said that she did not know the plaintiff save that she saw her in court. She said that the deceased did not build a house for the plaintiff and the house she claims to be hers at Lokichar was build for her mother in law and the same was not completed.

14. After the accident she was called by the deceased superiors and given his personal effects and further given kshs 100,000/-. She said that the plaintiff name does not appear in the NHIF Card which she and the children have been using. At the time of filing the cause she did not know the plaintiff and thus there was nothing to hide.

Analysis and Determination

15. I have perused the written submissions by the parties herein as well as the attached authorities. The non contestable issues herein are that the deceased died in a road traffic accident heading to Garrisa from Nairobi . That he was a senior police officer with a rank of Supretentant of police. That the deceased hailed from Lokichar in Turkana County but had properties within Trans Nzoia County as well. It is not in dispute also that the defendant was legally recognised as his wife with 4 children.

16. The substantive issue however is whether the plaintiff was the wife and therefore a widow to the deceased. Secondly whether the only child they allegedly had was sired by the deceased.

17. There was no formal marriage between the deceased and the plaintiff. In other words no official marriage certificate was produced to that effect. The burden which laid before the plaintiff was to establish that she was therefore married to the deceased under the Turkana customary law or at most through what is commonly referred to as presumption of marriage based on long cohabitation.

18. In the case of Kimani Vs Gikanga (1965) EA 735 at Page 739 Duffus J A expressed himself on this question of customary law as follows;-

“To summarise the position; this is a case between Africans and African customary Law forms a part of the law of the land applicable to this case. As a matter of necessity the customary law must be accurately and definitely established. The court has a wide discretion as to how this should be done but the onus to do so must be on the party who puts forward customary law. This might be be done by reference to a book or document of reference and would include a Judicial decision but in view especially of the present apparent lack in Kenya of authoritative text books on the subject, or any relevant case law, this would in practice usually mean that the party propounding customary law would have to call evidence to prove that customary law, as would prove the relevant facts of this case.”

19. The above position is in line with Section 107 of the Evidence Act Cap 80 Laws of Kenya which states that;

“107 (1) whoever desires any court to give judgment as to any legal right on liability dependant on the existence of facts which he asserts must prove 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.”

20. It was incumbent therefore upon the plaintiff to proof first as she said in her evidence in chief that the deceased married her under the tenets of Turkana Customary Law.

21. PW3 Lochin Regina Lokider the mother to the deceased and fairly old lady seemed to have restated clearly some of the requirements that constitute marriage under Turkana customary law. She stated that goats, cows and camels are usually sent to the girls parents as dowry. During the ceremony the girl is dressed by women and other relatives with beats bracelets and skins and the dowry is taken to the girls parents. The dowry is usually taken by uncles, brothers and friends and relatives.

22. Did the above ceremonies occurred? The plaintiff stated that the same occurred and she produced a letter from the chief Lokichar Location dated 28/11/2009 Titled

“Turkana customary marriage James Ekai Maruk and Huldah Bosibori Mogaka”

The said letter stated that the two married each other on 28/11/2009 under the customary law and pursuant to Section 43 of the Marriage Act.

23. I have had a close look at the said letter and clearly the two parties namely the deceased and the plaintiff did not sign anywhere. The plaintiff however admitted that she did not sign as she was a party.

24. Her witness PW2 who was allegedly present stated that the plaintiff did sign which was not true. PW2 further stated that dowry was paid in form of goats that particular day but he could not remember the number. Again this contradicted the plaintiff who said that no dowry was paid.

24. PW3, The deceased mother and therefore supposedly the plaintiff's mother in law stated during cross-examination that she has never met the plaintiff parents nor have any formal meeting or dowry taken to them.

25. Back to the chief's letter dated 28/11/2009 which was a crucial piece of evidence by the plaintiff, the same seemed to have been backdated as it refers to Section 43 of the Marriage Act which came into force in 2014 yet the letter was written in 2009. The same is indeed suspect as the parties to the ceremony failed to sign. More importantly the maker of the letter did not testify.

26. In view of the above observations can one expressly say that there was a customary marriage between the plaintiff and the deceased? I do not think so. The critical ceremonies which ought to have been performed were not undertaken. In fact there was no formal meeting between the deceased parents or relatives and those of the plaintiff. There is nothing to show that there was dowry given to the plaintiff parents as it happened between the deceased parents and those of the defendant where a sum of kshs 60,000/- was alleged acknowledged and paid.

27. Can one therefore assume that there was a marriage by presumption between the plaintiff and the deceased. I do not think so as the same was never pleaded and in any event it is not provided under the Marriage Act 2014. Even if they were both involved in the fatal accident that does not mean that they were husband and wife. Neither did the plaintiff adduce any evidence that they had stayed with the deceased for such along time anywhere.

28. The issue of the child in my view does not necessarily indicate that she was sired by the deceased or for that matter a conclusion that there was a marriage between the plaintiff and the deceased. What I find intriguing is that the plaintiff obtained the birth certificate way after the deceased had passed on. If indeed the child belonged to the deceased, it would have been prudent perhaps to have included her in the statutory documents like NHIF or list of Dependants or such other relevant legal documents. No clinic cards or any such other aforestated documents preceeding the birth certificate was produced.

29. It appears from the evidence presented by the defendant that she was a recognised widow of the deceased. This was buttressed by the production of the evidence which included the personal effects of the deceased handed to her by the relevant police authorities. If the plaintiff was staying with the deceased as husband and wife why wasn't she given the personal effects and the letter of condolences from the deceased superiors. The defendant further stated that she was paid Kshs 100,000/- during the burial exercises. Why wasn't the plaintiff paid?

30. All in all I do not find that the plaintiff has proved that she was married to the deceased under Turkana customary law. Neither do I find her cohabitation with the deceased if any, to have resulted into a marriage so to speak. Her attempt to prove that she got married under the Turkana customs was not proved by two simple facts, namely no formal ceremonies were conducted and even PW2 who allegedly participated in the ceremony contradicted himself. Secondly and more importantly no dowry whether in form of animals or cash was paid to the plaintiff's parents nor was there any formal agreement between the two families.

31. Consequently I do not find any fault on the apart of the defendant when she applied for the grant. She did not fail to disclose anything and neither fraud has been established against her.

32. In the premises the application for nullification of grant is hereby disallowed. The defendant may proceed to confirm the grant appropriately.

Costs to the defendants.

Delivered, signed and dated on this 9th day of October, 2017 at Kitale.

In the presence of;

Kiarie for the Respondent

Khisa for Objector

Kirong – Court Assistant

Court: Judgment read in open court.

_____________________

H.K. CHEMITEI

JUDGE

9/10/17