[2023] KEHC 19393 (KLR)

In re Estate of Joshua Apiyo Ongany (Deceased) (Succession Cause 12 of 2019) [2023] KEHC 19393 (KLR) (26 June 2023) (Ruling)

Neutral citation: [2023] KEHC 19393 (KLR)

Republic of Kenya

In the High Court at Kisumu

Succession Cause 12 of 2019

JN Kamau, J

June 26, 2023

(FORMERLY NAIROBI SUCCESSION CAUSE 1535 ‘B’ OF 2016) IN THE MATTER OF THE ESTATE OF JOSHUA APIYO ONGANY (DECEASED)

Between

Jennipher Aoko Apiyo

Petitioner

and

Eunice Akinyi Abuya

Objector

Ruling

Introduction 1. The Petitioner herein was issued with her Grant of Letters of Administration Intestate on 28th December 2016. The said Grant was confirmed on 13th June 2017. In an application dated 14th July 2017, she applied for the rectification of the said Grant of Letters of Administration. It was this application that provoked the Objector to file the Summons for Revocation or Annulment of Grant dated 18th May 2019 and filed on 7th June 2019.

2. In the said Summons for Revocation or Annulment of Grant, the Objector sought that the said Grant of Letters of Administration be revoked or annulled on ground that the same was obtained fraudulently by the making of false statement or by the concealment from the court of something material to the cause.

3. In her affidavit that she swore in support of the said Summons on 18th May 2019, she asserted that the Petitioner omitted her name and that of her children namely, DJO and NS aged six (6) and four (4) years respectively yet the deceased married her as a second wife after taking dowry to her family, a fact that was well known by his family. She added that he also constructed a matrimonial home for her within Central Kisumu Location, Korando Sub-location where she was living before he died and that he also entrusted her with his legal documents. It was her contention that the Petitioner took advantage of her level of education and disinherited her from the estate of her husband.

4. She added that the Petitioner concealed to the court the fact that the deceased died at Milimani Hospital Kisumu and hailed from Otonglo in Kisumu where he was buried. It was her assertion that any petition for grant of letters of administration ought to have been filed at the Kisumu Law Courts (sic).

5. She contended that there was lack of good faith on the part of the Petitioner and urged the court to revoke the Grant issued and issue another to a neutral party being the Public Trustee who would be open, unbiased, accountable and transparent to all the legal beneficiaries of the deceased.

6. In opposition to the said Summons for Revocation of Grant, the Petitioner swore a Replying Affidavit. The same was filed on even date. She averred that she presented the Petition herein in her capacity as the widow of the deceased who stayed with him until his demise in a monogamous marriage that they celebrated in church on 1st May 1983. She pointed out that they were blessed with eight (8) children and that she was not aware that deceased was married to the Objector herein or that they had two (2) children as she had claimed.

7. It was her assertion that if there was any romantic relationship between the deceased and the Objector, then the same did not amount to a marriage so as to entitle her to file the Petition herein. She added that the deceased was sixty one (61) years at the time of his death and had long before his death ceased to be sexually active as he had serious health problems which led to his demise.

8. She asserted that she was also not aware that the deceased built a matrimonial home for the Objector as none of her children and/or herself were involved in the setting up of the same. She added that she was surprised that the deceased took no step to include the Objector’s name or that of her children as next of kin or dependant in the documents that were held by his employer.

9. She further stated that she was not aware of the circumstances under which the Objector got hold of the deceased’s documents as the same were in the dashboard of their car when she came home with him before his demise. She added that before he died, the same car had been used to take his mother to visit his sister at Asembo in Siaya County.

10. She contended that she was glad to learn that the Objector was in possession of the said documents as she had believed that they got lost or were misplaced which prompted her to report the loss at Maseno Police Station. She pointed out that the Objector was therefore duty bound to return the said documents to her as the administrator of the deceased’s estate. She added that she had instructed her legal team to make the necessary application to compel her to surrender the documents to her.

11. It was her contention that the deceased was a civil servant who worked most of his life in Nairobi where they developed a property in which they lived and raised their children and that the Certificate of Death was clear about where the deceased died as well as his other residence a fact which she had confirmed on oath in her affidavit in support of the Petition herein and therefore the accusations directed at her by the Objector were baseless.

12. She was emphatic that the filing of the Petition was run in the Kenya Gazette on 28th October 2016 but that there was no reaction from the Objector. She stated that there was no basis for revoking the grant and reissuing it to the Public Trustee as claimed by the Objector. She termed the present Summons for Revocation and Annulment of Grant as misconceived.

13. On 7th February 2020, the Objector swore a Further Affidavit. The same was filed on 13th February 2020. She reiterated the contents of her Affidavit in support of her Summons and stated that the Petitioner’s averments were false and that she had attached misleading documents. She was emphatic that all along, the Petitioner was aware that the deceased had embraced a polygamous marriage and had been living with her since 2010 and that the Petitioner knew her children well. She asserted that it was the deceased who gave her his legal documents.

14. The matter proceeded by way of viva voce evidence. The Objector’s Written Submissions were dated 24th February 2023 and filed on 27th February 2023 while those of the Petitioner were dated 3rd April 2023 and filed on 4th April 2023. The Ruling herein is based on the evidence tendered in court and the said Written Submissions which parties relied upon in their entirety.

Legal Analysis 15. The Objector submitted that she had produced in evidence an affidavit of marriage and the Chief’s letter which were proof that she was a wife to the deceased. In this regard, she relied on the case of Bilia Wambeti Jotham vs Janet Gacheke Nguo [2021] eKLR where it was held that it is presumed that since the chief was well familiar with the family of a deceased’s person, he was the only person who could inform the court of the beneficiaries that were left behind by a deceased person.

16. She further invoked Section 76(a)-(e) of the Law of Succession Act and argued that the Petitioner concealed that the deceased had another family and was polygamous and that she had initially filed this cause in Nairobi HC Succession Cause No 1535 B of 2016 to block her from the succession process but that she applied for the transfer of the same to Kisumu.

17. She placed reliance on the case of Re Estate of Julius Ndubi Javan (2018) (eKLR citation not given) where emphasis was placed on the importance of parties to bring forth truthful information to court and the case of Estate of GCB (Deceased) Malindi HC Succession Cause No 98 of 2016(eKLR citation not given) where the court revoked grant issued for reason that the respondent failed to disclose material fact hence in breach of the law for which she must suffer the consequences.

18. She stated that the deceased’s mother, Margaret Olwanga Ogalo (hereinafter referred to as “PW 2”) corroborated her evidence that she lived in Korando. She argued that the failure to include her in the eulogy was not a justification of proof of not being a wife as a eulogy only summarised the deceased’s life but did not give concrete evidence on all details of the deceased’s life. She added that failure by the deceased to reveal to the Petitioner that he had another family did not eliminate the fact that she was indeed his wife.

19. She was categorical that no evidence was alluded to the fact that the signature on the affidavit of marriage was fake. She invoked Section 40 and Section 66 of the Law of Succession Act and urged the court to exercise its inherent discretion in her favour as she was a surviving spouse and her children were dependants as provided in Section 29 of the Law of Succession Act.

20. On her part, the Petitioner emphasised that she did not know the Objector and that she only came to know about her when she served her with the present Summons for Revocation of Grant. She further contended that two (2) letters dated 6th December 2016 from the Pension’s Department made no mention of the Objector herein as a dependant of the deceased and that at no time did the deceased introduce her to her or to her children.

21. She placed reliance on the case of Njoki vs Mathara & Others Civil Appeal No 71 of 1989 (UR) where the court held that the onus of proving a customary marriage was on the party who claimed it. She submitted that although the Objector had claimed that the deceased paid for her dowry, she failed to prove the same. She added that the affidavit the Objector adduced in court to prove that that she solemnised her marriage with the deceased in 2012 did not have a stamp of a commissioner for oaths affixed on it. She argued that the same was incompetent and urged the court not to rely on it.

22. She invoked Section 2 of the Marriage Act 2014 and submitted that the dowry alluded by the Objector was not sufficient proof that she was a wife to the deceased. She pointed out that Michael Ogallo and George Okello Ongany who claimed to be the deceased’s brothers filed Witness Statements dated 19th April 2021 but were not called to testify for reasons which had not been disclosed.

23. In this regard, she relied on the case of Re Estate of Mwangi Kuria (Deceased) [2020] eKLR where it was held that when a party failed to call a witness who was available and who would have assisted his case, the inference was that the evidence would have been adverse to his case.

24. She was categorical that the deceased could not have married the Objector herein while still married to her as Section 9 of the Marriage Act prohibited parties in a monogamous marriage to contract other marriages. She argued that indeed if the deceased wanted to marry the Objector, he would have applied to dissolve his marriage with her first. It was therefore her contention that there was no marriage between the deceased and the Objector herein and that any purported marriage was null and void.

25. She further argued that Section 3 of the Marriage Act requires that all marriages be registered and certificate issued. She further invoked Rule 7 of the Marriage (General Rules) 2014 and contended that in the absence of any marriage certificate, there was no marriage between the Objector and the deceased and she was therefore not a wife. She added that the only basis upon which the Objector could claim the right to administer or benefit from the estate of the deceased was the claim that she was the widow of the deceased but that if it was proved that there was no marriage in law, then her claim would collapse.

26. She pointed out that there was no DNA Report that was produced by the Objector to prove that her children were related biologically to the deceased person. It was her contention that in the absence of the DNA blood test, it was almost impossible to say that the deceased person fathered the Objector’s children. To buttress her argument, she referred this court to the case of Re: James Mberi Muigai Kenyatta [2001] eKLR without elucidating the particular holding she relied on therein.

27. She further cited the case of NEO vs HWK [2018] eKLR where it was held that a birth certificate was proof of paternity but that it was not the only and final proof and that parental responsibility started after paternity of the child had been determined.

28. She was categorical that the Objector failed to prove that the deceased used to maintain her two (2) minor children having been a primary school dropout with no income. It was her submission that as the Objector and her children were not listed amongst the family of the deceased in the Eulogy, the Objector was not a wife to the deceased and her children were not dependants to the deceased’s estate.

29. She invoked Section 76 of the Law of Succession Act and referred this court to the case of Albert Imbuga Kisigwa vs Recho Kavai Kisigwa Succession Cause No 158 of 2000 (eKLR citation not given) where it was held that the power to revoke a grant was a discretionary one that had to be exercised judiciously and only on sound grounds.

30. In her testimony, the Objector reiterated the averments she had set out in her affidavit evidence. She explained that she met the deceased in 2011 and they moved in together in 2013. She said that they stayed together for about one (1) year and that he had a heart disease. She stated that they opened her house in 2015 and that he attended the said occasion and stayed with her for a week and that when he went to the Petitioner’s house, he lived for a day and died. She said that the deceased died on 3rd April 2015. She further testified that he took her to PW 2’s at Korando Tiengre in Kisumu and she stayed with her in the same house.

31. She asserted that her name was not included in the Eulogy and that she did not speak to the Petitioner during the funeral. She pointed out that before he was buried, the deceased’s body was taken to the Petitioner’s house and then to her house. She explained that she did not contribute to the funeral because she did not have money. She further stated that she still lived in the house he constructed for her. She averred that she was not married to anyone else and denied staying with a person known as Ben.

32. PW 2 confirmed that the Objector was a wife to the deceased. She explained that the deceased married the Petitioner in church before marrying the Objector herein. She stated that both the Petitioner and the Objector had their own homes and that she had never seen the Objector with any other man. She confirmed that the Objector had two (2) children and pointed at them in court. She told this court that the Petitioner and the Objector were her children.

33. She said that she could not if that the deceased person had a heart problem but that he had a persistent cough which she believed could have been the cause of his death.

34. The Petitioner also reiterated the assertions she had made in her affidavit and emphasised the she got married to the deceased in 1976 but that they formalised the union in 1983. She asserted that all along she was staying with the deceased who had a heart condition in Nairobi and that she never heard of the opening of the Objector’s house and attending the ceremony for the said function. She added that for twelve (12) years when he was unwell, she was the one who used to take him to hospital and that the Objector never took him to hospital. She also stated that the Objector never participated in the funeral arrangements and she did not see her during the funeral.

35. She stated that she opened a Company called JIJER in 2006 together with the deceased that was formed from their names and that of her children and that they would invest out of the proceeds of the company. She stated that they bought parcels namely Nairobi Block/118/1917 and Plot 85 at Lolwe. She added that they developed the plot at Lolwe and built four(4) storied houses. She further stated that they purchased other pieces of lands in the 1980s. She added that the Objector lived in Plot Karondo/1472 which they purchased from one William Akong’o Opudo. She stated that they bought the vehicles out of the proceeds of the company.

36. She further testified that she did not know how the Objector started living on the said parcel of land. She stated that the deceased never revealed to her about the Objector and her children during his lifetime. She pointed out that she did not see any DNA report on the Objector’s bundle of documents that linked the Objector’s children to the deceased. She added that the signature affixed on the affidavit of marriage produced by the Objector did not belong to the deceased. She asserted that she was given the deceased’s pension for five (5) years because he indicated her name as next of kin.

37. Notably, the Petitioner’s marriage to the deceased was not disputed as she testified that they formalised their marriage in church in the year 1983. What was in dispute was whether or not the Objector qualified to be referred to as the deceased’s wife.

38. Section 59(1)(a) of the Marriage Act, 2014 provides that a marriage is proven by a certificate of marriage. There was no evidence that the marriage between the Objector and the deceased was registered. Indeed, the Marriage Act is clear that all customary marriages are to be registered. Section 6(1)(c) of the Marriage Act provides that:-“A marriage may be registered under this Act if it is celebrated in accordance with the customary rites relating to any of the communities in Kenya”

39. Further, Section 44 of the Marriage Act states as follows:-“The parties to a customary marriage shall notify the Registrar of such marriage within three months of completion of the relevant ceremonies or steps required to confer the status of marriage to the parties in the community concerned.”

40. In the absence of any registration of the marriage, the affidavit of marriage the Objector produced did not prove that there was existed any marriage between her and the deceased herein. It was also immaterial that the deceased had paid dowry for her or taken her to Korando to live with PW 2.

41. Going further, for a presumption of marriage to arise, there had to be evidence of long cohabitation. There had to be proof that the parties held themselves out as husband and wife. According to Section 2 of the Marriage Act, 2014 “cohabit” means:-“to live in an arrangement in which an unmarried couple lives together in a long-term relationship that resembles a marriage.”

42. While pronouncing itself on the issue of presumption of marriage, in the case of Phylis Njoki Karanja & 2 others vs Rosemary Mueni Karanja & Another [2009] eKLR, the Court of Appeal stated that before a presumption of marriage could arise a party had to establish long cohabitation, it was not imperative that certain customary rites be performed since the presumption is in the nature of an assumption.

43. From the evidence that was placed before this court, the Objector herein and the deceased held out themselves as husband and wife to the deceased’s mother. Under ordinary circumstances, this court could have presumed marriage between them.

44. However, this court agreed with the Petitioner’s argument that as the deceased was married her under a statutory monogamous marriage, he was incapable of contracting another marriage during his lifetime.

45. According to the Law of Succession (Amendment) Act of 2021, Section 3 of the Law of Succession Act Cap 160 (Laws of Kenya) defined "spouse" to mean a husband or a wife or wives recognised under the Marriage Act of 2014.

46. Notably, Section 6(2) of the Marriage Act stipulates that:-“A Christian, Hindu or civil marriage is monogamous.”

47. The situation would, however, have been different if the deceased had first contracted a polygamous marriage with the Objector as she would have retained her status as a former spouse. Section 3(5) of the Law of Succession Act 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.”

48. Whichever one looks at it, both the Objector herein and the deceased person could not have been said to have been husband and wife for the reason that the marriage between the Petitioner and the Objector was potentially and completely monogamous and no marriage could be contracted unless the same was dissolved either by divorce or death.

49. Having said so, from the evidence on record, the Objector and the deceased herein had children. Prior to his demise, he had rented for her a house at Manyatta and later constructed a house for her at Korando and that at the time of his demise she was expecting his second child with him, which child was born within eight (8) months of his demise. This fact was confirmed by his mother, a witness who was of advanced age and appeared as a credible and truthful witness.

50. It is trite law that children born during coverture are presumed to be children of the marriage and a deceased father cannot escape parental responsibility merely because he was not legally married to their mother or that there was no proof of fatherhood. Indeed, Section 29 of the Law of Succession stipulates as follows:-“For the purposes of this Part, "dependant" means-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” (emphasis court).

51. In addition, Article 53(1) (e) of the Constitution of Kenya, 2010 stipulates:-“Every child has the right to parental care and protection, which includes equal responsibility of the mother and father to provide for the child, whether they are married to each other or not”

52. The Objector produced the Birth Certificates of the two (2) children which indicated that their father was the deceased. Notably, no application for a DNA was made to court before trial. As such, without any evidence to the contrary this court could do no more than find that the children of the Objector were scions of the deceased. Indeed, PW 2 also informed this court that the two (2) minor children were born out of the union between the Objector herein and the deceased person.

53. Accordingly, her two (2) children with the deceased were the deceased’s dependants and beneficiaries of his estate within the meaning of Sections 29 of the Law of Succession and were entitled to be given their share in the deceased’s estate.

54. Turning to the Objector’s Summons for Revocation and Annulment of Grant herein, this court looked at Section 76 of the Law of Succession Act which states that:-“A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion—a.that the proceedings to obtain the grant were defective in substance;b.that the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case;c.that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently;d.that the person to whom the grant was made has failed, after due notice and without reasonable cause either—i.to apply for confirmation of the grant within one year from the date thereof, or such longer period as the court order or allow; orii.to proceed diligently with the administration of the estate; oriii.to produce to the court, within the time prescribed, anyiv.such inventory or account of administration as is required by the provisions of paragraphs (e) and (g) of section 83 or has produced any such inventory or account which is false in any material particular; ore.that the grant has become useless and inoperative through subsequent circumstances.”

55. An order for revocation of the grant can thus only be given if the aforesaid grounds for revocation had been satisfied. A similar finding was arrived at Re: Estate of L A K – (Deceased) [2014] eKLR.

56. After carefully considering the evidence on record and the respective parties’ Written Submissions and having found that the Objector’s children were dependants of the deceased’s estate herein which information was not provided to this court, this court found and held that the Objector proved her assertions as required by the law. Although, the Petitioner claimed having not known the Objector until when she was served by the Summons of Revocation and Annulment of herein, this court was satisfied that the Certificate of Confirmation of Grant was obtained by the concealment from the court of something material to the case as envisaged in Section 76(b) of the Law of Succession Act.

57. Having said so, no value would be added by revoking the Grant of the Letters of Administration Intestate as the same could not be issued in the joint names of the Petitioner and the Objector herein, the court having found that the Objector was not the deceased’s wife. The issue that appeared to be in contestation was really distribution of the deceased’s estate to the Objector’s children. The court could therefore revoke the Certificate of Confirmation of Grant that was dated 13th June 2017 under Section 76 of the Law of Succession that states that:-“A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides (emphasis)”

Disposition 58. For the foregoing reasons, the upshot of this court’s decision was that the Objector’s Summons for Revocation or Annulment of Grant dated 18th May 2019 and filed on 7th June 2019 was not merited. Be that as it may, it is hereby directed that the Certificate of Confirmation of Grant dated 13th June 2017 be and is hereby set aside and/or vacated.

59. It is also hereby directed that the Petitioner files a fresh Summons of Confirmation by 25th August 2023 in which the Petition which shall include the Objector’s children as beneficiaries of the deceased’s estate.

60. It is further hereby directed that the matter be mentioned on 9th August 2023 before the Deputy Registrar High Court Kisumu to place before the judge who will have been allocated to deal with this matter with a view to confirming compliance and/or for further orders and/or directions.

61. It is so ordered.

DATED AND DELIVERED AT KISUMU THIS 26TH DAY OF JUNE 2023J. KAMAUJUDGE