[2021] KEHC 9555 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

SUCCESSION CAUSE NUMBER 461 OF 2014

IN THE MATTER OF THE ESTATE OF THE LATE SYMON KIPNGÉNY KOIMA (DECEASED)

BRIDGID JEPCHUMBA MAIKONG..............................1ST PETITIONER/ RESPONDENT

RODGERS KIBICHII KOIMA.......................................2ND PETITIONER/ RESPONDENT

VERSUS

JOYCE J CHEPTORUS..........................................................1ST OBJECTOR/APPLICANT

VACITY CHPEKEMOI KOIMA...........................................2ND OBJECTOR/APPLICANT

JUDGMENT

1. Symon Kipngeny Koima died intestate on the 2nd December 2012.

2. According to the letter from the chief Kaptembwo location Nakuru dated 29th August 2013 he was survived by his widow the 1st petitioner, his son the 2nd petitioner and three daughters Caroline, Larisa and Angela, the last two being minors.

3. On 1st September 2014, the petitioners were issued with a joint grant of letters of administration. Summons for confirmation of grant were filed on the 25th March 2015, and certificate of grant made on the 30th November 2015 in which the whole estate, comprising land, motor vehicles money in bank accounts and benefits from the deceased’s employer the Government of Kenya through the Ministry of Foreign Affairs was transmitted to the widow.

4. On 1st March 2018 the objectors filed Summons for the revocation of the grant on the grounds that the petitioners had concealed from the court that the two objectors were beneficially entitled to the estate: that the 1st objector was also a wife of the deceased, and her three children, Daniel, Mariana and Antony and the 2nd objector, Vacity child of the deceased; that the deceased was a resident of Lembus, yet the Petitioners had obtained from the Chief Kaptembwo, the introductory letter, a deliberate move to conceal from the court the existence of the objectors.

5. The application also contained a prayer to restrain the petitioner from dealing with or disposing of the estate pending the hearing and determination of the summons for revocation of the grant. Temporary restraining orders were issued on 1st March 2018.

6. The matter proceeded for hearing by way of viva voce evidence before the Hon Justice Ndung’u who heard the whole of the objectors’ case. Mr Akang’o appeared for the objectors while Mr. Keboga appeared for the Petitioner.

7. From the record it appeared to me that the 1st objector’s main ground is that she and the deceased got married on the 4th April 2002 under Kalenjin Customary law as they were both from the Tugen subtribe. That she was aware that the deceased was married to the 1st Petitioner in a Christian church wedding. That her brother represented her deceased parents in the whole process and it is to him that she introduced the deceased in 1999. That after the introduction the deceased came to her home in the company of his brother in law. At that time she was a teacher at Kuinet School. In 2001 she was transferred to Sorian Girls where she had been before.

8. That the deceased came to her place with his father, his brother, and cousins on 4th April 2002. There were no women in the group. That he later told her that he had paid Kshs. 4000/= as dowry. That on a different date her brother went to collect a cow and a calf from the deceased’s home. She said the deceased’s parents went to her home and paid dowry.

9. It was her testimony that out of their marriage they bore three children Anthony, Maryanne and Daniel whose certificates of birth the record states she produced. (I had to adjourn the judgment to obtain copies as none were in the file). The certificates of birth show that Anthony 28th 1994, July Marina was born on 25th December 2002, Daniel 13th March 2004. .

10. She testified that they lived together in Sorian. That they later purchased land in Mogotio where she paid Kshs. 570,000/= and the deceased Kshs. 30,000/=. That it was on this land that they established a home in Mogotio.

11. That when he died she and her children attended the funeral. That she and her children were included in the burial programme.

12. She produced a letter from the Senior Chief Lembus Kiptoim Location dated 21st March 2013 addressed to the DC Mogotio District which listed both hers and the 1st petitioner’s families as beneficiaries. The same chief wrote a letter dated 29th August 2013 confirming that the 1st objector was married to the deceased in accordance with Tugen customary law.

13. She testified that though the deceased worked in India, Russia and Kenya she never visited him.

14. On cross and re-examination she told the court that deceased visited her only once in Sorian but she would travel home to be with him on weekends. She also said he used to visit them at Sorian. That he was sick for some time but when he was admitted in hospital she visited him only once. That he lived in Langata and Eastleigh while she was in Mogotio and the 1st Petitioner in the rural home.

15. That the reason she never visited in the foreign countries was because her work schedule would not allow, and when arrangements were made for her in 2010, she fell sick. That for the 1st Petitioner her names was with the Ministry of Foreign Affairs as a wife and the government bore her travel expenses.

16. The retired chief Lembus Joseph Kiprono Korir Chepkonga served from 1997 to 2017. He testified as PW2. That the deceased came from his location, and when he died in 2012, he attended his burial. That he knew that the deceased had two wives. At the burial both wives were present and were recognised as such. That he issued the letter of 21st March 2013 to the 1st Petitioner in which he named her and the 1st objector as widows. He learnt that another chief from Kaptembwo had written another letter. He did not know whether the deceased had a home in Kaptembwo. On examination he told the court that the objector did not live in Lembus but in Mogotio which was not in his location. He stated that though he was an elder he was not aware that the deceased had paid dowry. That he knew that the deceased had children with the objector, and that he would visit deceased in Sorian.

17. Chepkirwo Chepkolel was PW3 the father to the deceased. He testified that he was his first born son. That he had two wives and had children with each one of them.

18. He testified that he visited the home of the objector to ask for her hand in marriage. That he was with his brother one Koima and others he could not recall. He said they found an uncle and the 1st objector’s mother as her father had passed on earlier.

19. About dowry or Maguta, he testified that they did not pay it on the first day but took it on another occasion. About the cattle he testified that the parents of the first objector went to collect them. That there was no traditional marriage ceremony. That the 1st petitioner had no sons but the objector had one son.

20. PW4 Musa Kipkoech Koima the 6th born in the family was the deceased’s younger brother. He testified that his brother was married to two wives. That he had built for each had her own home, one in Kiptoim, the other in Mogotio. That the objector’s was on 6 acres which belonged to the deceased. That both attended the burial and were recognised as such.

21. He stated that he was in the team that visited the 1st objector’s home. That they paid Kshs. 2,000/= which was given by his father. That his father later gave out a cow. That the deceased was present. That a ceremony was planned but deceased died before it was done.

22. That he was present when the burial program was made but the Petitioner was in Nairobi.

23. On examination he testified that he had three older brothers, Will and Charles. That there had been a discussion about the deceased’s property where the family sat down and discussed the property and distributed it to the petitioner, the deceased’s eldest son, the objector and the deceased’s father, who was to get the deceased’s tractor. That there was land belonging to the deceased in Maasai land which the deceased’s brother one Charles had occupied, and was also in possession of the deceased’s tractor. He stated that there was an issue about the deceased’s goats in Narok. That there were issues which even the chief or the D.O. could not resolve.

24. The 2nd objector did not testify.

25. The 1st petitioner testified that she and deceased got married on 30th December 1996 at ACK Church Eldama Ravine. The deceased already had one child out of wedlock, the 2nd respondent who she raised as hers together with her children. She also became aware of another child of the deceased from another relationship the 2nd objector, whom she recognised as such. They had three daughters. She testified that before her husband joined the Ministry of Foreign Affairs he worked as a District officer. During his later tour of duty they lived in Russia for four years and in India for four years, then returned to Kenya in 2010 where she continued working with Ministry of Health.

26. That all the properties they had that now formed part of the estates she bought with her husband.

27. That her husband was sick for long, starting from when they were in India. He was admitted in hospital for a while. She never saw the objector visit the deceased then.

28. That he died in Nairobi. There were several funeral committees. It was during these arrangements that conflict arose between her and her father and brothers in law. She was told that the deceased had another wife and any protestations she raised were shut down. She was told that the family had determined the issue. To confirm this, when the death announcement was made in the newspaper she saw their names in it. However that at the funeral this other family was not introduced and the first objector did not speak.

29. In addition her in-laws demanded the documents for all of the deceased’s properties and she refused. After the burial she slept in her house at Muserechi. The following day there was a family meeting where she was told what the family had made decisions about her husband’s property. She refused to cooperate as her brother in law and her father in law were demanding two parcels of land.

30. In her own understanding the 1st objector was brought by her in-laws so that they could access her husband’s property.

31. She also testified that she had filed the cause two years after her husband’s death. In the intervening period she never heard anything from or about the 1st objector.

32. That the 1st objector had only brought the objection after she the petitioner found out that she had transferred LR Lembus/Chemogoch/257 to herself and filed a suit for the recovery of the said property.

33. She testified that when she stayed with the deceased abroad he would sometimes come home by himself. There was a time she was in Kenya and would visit him in India.

34. She conceded that the 1st objector was at the funeral and they were taken a photo together. She also conceded that the 1st objector attended her mother in law’s burial who died after her husband.

35. She said she did not include Vacity whom she recognised because she was married.

36. She called three witnesses who testified to the fact that she was the deceased’s wife and he had no other, and that they did not know Grace.

37. DW2 Pastor Joshua Koima was a brother to the deceased’s father. He testified that he knew the deceased, he knew that he was married to the 1st Petitioner only because his brother had called them together and taken them to the home of the 1st Petitioner for the traditional engagement and the church wedding ceremony. The father of deceased never told him of any other engagement and its allegation was a real surprise to him. He asserted that only one wife was introduced at the funeral and he never heard the name Grace. He said he inquired about the inclusion of the 1st objector on the funeral announcement, but his brother became hostile. He named the children of the deceased.

38. DW3 Fredrick Rerimoi Chesaina was a relative who told the court that the deceased married ‘their daughter’. That if he had another wife they would have known. He said at the funeral he never heard the name of the 1st objector or that there were two wives.

39. DW4 Albert Hussein Koima a cousin to the deceased testified how close he was to the deceased. He was only aware of one wife, the 1st petitioner. He attended the burial, he never heard of the 1st objector. He testified that when the 1st Petitioner was married the deceased already had two children.

40. At the close of trial, counsel for each party filed written submissions and each set out the issues for determination: for the objectors.

(i) Whether the deceased died a polygamous person?

(ii) Whether the 1st objector was a wife to the deceased?

(iii) Whether the 2nd objector was a child to the deceased?

(iv)Whether the grant of representation of the estate of the late Symon Kipngeny Koima was procured in secrecy, through fraud, misrepresentation and non-disclosure of material facts to court?

(v) Whether the grant of representation intestate issued on 11th March 2015 and confirmed on 30th November, 2015 should be revoked/annulled and the estate redistributed.

(vi) Who should bear the costs of the proceedings?

For the petitioner;

(a) Whether the 1st objector was legally married to the deceased SYMON KOIMA as per the Kalenjin Customary Law.

(b) Whether the children of the alleged marriage between the 1st objector and the deceased are entitled to benefit from the estate of the deceased.

(c) Whether the petitioners rightly and lawfully petitioned for grant of representation to the estate of the late SYMON KOIMA.

(d) Whether this objection proceedings meet the threshold for the orders sought.

(e) Whether the exclusion of VACITY will result in the revocation of the grant.

41. To my mindthe key issues for determination are whether Grace was a wife of the deceased, and her children, children of the deceased?: whether the grant was obtained in the manner calling for revocation to warrant revocation of the grant under Section 76 of the Law of Succession Act,whether the 2nd Objector is beneficially entitled to the estate; whether the grant ought to be revoked on account of her omission.

42. The law on revocation of grant is set out at Section 76 of the Law of Succession Actand Rule 44 of the Probate and Administration Rules.

“S. 76. 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 - to apply for confirmation of the grant within one year from the date thereof, or such longer period as the court has ordered or allowed; or to proceed diligently with the administration of the estate; or to produce to the court, within the time prescribed, any 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; or

(e) that the grant has become useless and inoperative through subsequent circumstances.”

“Rule 44. of the Probate and Administration Rules states:

(1)Where any person interested in the estate of the deceased seeks pursuant to the provisions of section 76 of the Act to have a grant revoked or annulled he shall, save where the court otherwise directs, apply to the High Court for such relief by summons in Form 107 and, where the grant was issued through the High Court, such application shall be made through the registry to which and in the cause in which the grant was issued or, where the grant was issued by a resident magistrate, through the High Court registry situated nearest to that resident magistrate’s registry.

(2) There shall be filed with the summons an affidavit of the applicant in Form 14 for revocation or annulment identifying the cause and the grant and containing the following particulars so far as they are known to him -

(a) whether the applicant seeks to have the grant revoked or annulled and the grounds and facts upon which the application is based; and

(b) the extent to which the estate of the deceased has been or is believed to have been administered or to remain unadministered, together with any other material information.

(3) The summons and affidavit shall without delay be placed by the registrar before the High Court on notice in Form 70 to the applicant for the giving of directions as to what persons (if any) shall be served by the applicant with a copy of the summons and affidavit and as to the manner of effecting service; and the applicant, upon the giving of directions, shall serve each of the persons so directed to be served with a notice in Form 68, and every person so served may file an affidavit stating whether he supports or opposes the application and his grounds therefor.

(4) When the persons (if any) so directed to be served (or such of them as the applicant has been able to serve) have been served with a copy of the proceedings, the matter shall be placed before the High Court on notice by the court to the applicant and to every person so served, and the court may either proceed to determine the application or make such other order as it sees fit.

(5) Where the High Court requires that notice shall be given to any person of its intention of its own motion to revoke or annul a grant on any of the grounds set out in section 76 of the Act the notice shall be in Form 69 and shall be served on such persons as the court may direct.”

43. The objector relied on Musa Nyaribari Gekone & 2 others vs Peter Miyienda & Another [2015] eKLRwhere the grant was revoked because the petitioner had failed to disclose that the objector had interest over the property. This was upheld by the Court of Appeal.

44. In Nyarua Kirogo vs David Njuguna Kirigo [2015] eKLR the court held that the grant would not have been issued if it had been disclosed that the deceased was polygamous. And in Gideon Mungai vs Keziah Wanja Mwangi [2016] eKLR where the court found that the petitioner concealed that the deceased had another family. That was a ground of material disclosure and defect.

45. The Petitioner relied on Mary Wanjiku Gachugi vs Ruth Muthoni Kama [2003] eKLRwhere the court found that failure by the appellant to call her parents to prove they had received dowry was fatal to her case.

46. In Re James Mberi Mungai Kenyatta [2001] eKLRwhere the court declined to find that there was a Kikuyu Customary Law marriage for lack of sufficient evidence. And in RNM vs RMN[2017] eKLRwhere the court made the finding that a claim under Section 29 of the Law of Succession Act must be proved. The court said it was not about the relationship between the claimant and the deceased but the proof of the dependency.

47. In determining the question whether the objector was a wife, thus making the deceased a polygamous man I bear in mind the provisions of Section 3(5) of the Law of Succession Act which states:

(5) 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. This provision protects the woman whose husband was married in a monogamous marriage but proceeds to contract a customary law marriage with her. It brings that woman and her children to the table as beneficiaries of the deceased man’s estate. Section 29 is about dependency, and Section 40 about the distribution of the estate of a man who dies polygamous and intestate.

49. It is not in dispute that the deceased was married under a system that allows a monogamous marriage. It was therefore up to the objector to prove that she was indeed married under a system that permits polygamy so as to fall into Section 3(5) of the Law of Succession Act.

50. It is trite that he who alleges customary law must prove it. It was the 1st objector’s position that she was married to the deceased under Kalenjin Customary Law. From the outset there is no Kalenjin Customary Law, as the Kalenjin is a generic term for several subtribes, with their diverse customs. It emerged that she and the deceased were from the Tugen subtribe. The evidence on the alleged traditional rituals was not only contradictory but inconsistent. She said that when the deceased visited her home with his father and some male relatives, both her parents were deceased and it is her brother who represented them. The deceased’s father testified that her mother and uncle were present. She said the deceased told her that they paid Ksh 4,000/= as maguta or dowry, yet her father in law said nothing was paid that day, and her brother in law said only Kshs. 2,000/= was given by his father. It was claimed that her brother went to collect the cow and calf at a later stage. It is noteworthy that not a single member of her family testified to being present when dowry was paid. Surprisingly even that brother who represented her parents was never named, and she herself did not want to commit to the fact of the dowry being paid. That is why she said she was not present when it was paid but that the deceased told her later. How is it possible that her relatives would receive dowry and not tell her? There is no explanation why no member of the 1st objectors family was present in court to confirm that indeed they received Kshs. 4,000/= at the alleged negotiations, and that they even received dowry of a cow and a calf much later on an unknown date?

51. This renders the whole testimony about a customary marriage questionable and incredible.

52. About the children: It is noteworthy that when the 1st objector filed the Summons and put in the annexures, no certificates of birth were annexed. They only came out at the hearing of the summons. A perusal of the certificates of birth show that they were born in 1994, 2002 and 2004. These certificates were obtained in 2011, 2008 and 2013 respectively. Going by the 1st objector’s own testimony, the child born in 1994 could not have been the deceased’s child. By that time she did not know the deceased. She was not truthful about this so why would she be expected to be truthful about the others. This uncertainty is thinly veiled by the 1st objector’s alluding to her children being also part of the deceased’s beneficiaries under s. 29 of the Law of Succession Act. To this end she presented only one piece of evidence in the form of cross examination of the deceased uncle, when it was put to him that he had once been sent to pick her child from school. No evidence was availed to show that the deceased had any relationship or any form of interactions with the said children. Neither was any evidence led even to support the alleged dependency.

53. According to the 1st objector, she introduced the deceased to her unnamed brother in 1999, and they got married in 2002. There was no explanation about the child born in 1994. Yet it is her testimony that when she met the deceased he was already married to the 1st Petitioner. That marriage happened in 1996. What is the truth about her children?

54. Regarding the home she alleged she established with the deceased, she testified: ‘I bought the land. Deceased put up a house for me and I moved’. She said she paid Ksh 570,000/=, while he contributed Kshs.30,000/=. On the other hand her witness the deceased’s younger brother testified that the said land constituting 6 acres belonged to his brother, the deceased. No evidence of the purchase, or involvement of the deceased in the said construction was produced.

55. This evidence gives some credence to the 1st petitioner’s position that the 1st objector was only brought in by her in-laws to teach her a lesson for refusing to part with the documents for what they called the deceased’s properties. It does not add up that the deceased had other children out of two other relationships, who were known to the 1st Petitioner, but for some reason failed to reveal his other children, to his family for all the years that it is alleged he lived with them, that the only available photo of their relationship was at the funeral?. It is evident from the objector’s case that not even one member of her own family stepped forward to support her claim to have been married to the deceased, only members of the deceased family, giving further credence to petitioner’s position that the objector’s presence in this case was a ploy by in laws.

56. The objector testified that the deceased contributed to the purchase of the land upon which she settled in Mogotio, however no evidence was rendered in court to support that ground. There was no evidence that the deceased cohabited with the objector, being a teacher in various schools there would have been a colleague or friends, who would have known that the objector and the deceased cohabited as husband and wife, for the many years she alleged they did live together.

57. Regarding the three children she testified she had with the deceased the record shows that the objection produced certificates of birth, I did not find any copies in the court file, be that as it may. It is noteworthy that at the filing of this objection, the only supporting evidence that the alleged children were children of the deceased was the letter from PW2, the eulogy and funeral program, and the death announcement. The certificates of birth were not there and I would not know when they were obtained. In the circumstances of this case are such that it is evidence that the deceased’s family pushed for inclusion of the objection into the eulogy and the death announcement yet there was no proof that the deceased was married to the objector or had children with her.

58. I did not take the evidence of PW1, and the record does not state when the children were born nevertheless. The objector’s Supporting Affidavit indicated that the children were dependant on the deceased. Considering that both their paternity and dependency was in issue, it was upon the objector to provide evidence to support her claim. It was argued for the objector that having “established her status as a wife of the deceased”, it followed that her children were children of the deceased hence dependants within the meaning of Section 29 of the Law of Succession Act, it was further argued that the inclusion in the eulogy and burial program was proof that they were children of the deceased, and the fact that the petitioner could point them out from a photo taken at the funeral of the deceased.

59. That argument is not tenable, and particularly in the circumstances of this case where it is clearly evident that the family of the deceased were pitted against his wife. One can be married to a person, but the children that person has do not automatically become dependant because of the marriage if they are not biological children. In this case there is an argument that comes out, that the children were dependants of the deceased because the objector was his wife, which is which? Either the children were the biological children of the deceased, which makes them beneficially entitled, or they were not, and they would have to prove dependency.

60. There are two (2) authorities on this point cited by the Petitioner. The Court of Appeal case of Mary Wanjiku Gachugi vs Ruth Muthoni Kama [2003] eKLR where the issues were similar to the issues herein. The Court of Appeal upheld the finding of the Judge that the appellant was not a wife of the deceased, nor were her children the children of the deceased. Guided by that decision I find that the objector did not establish marriage to the deceased. With regard to the child, in Re James Mberi Mungai Kenyatta [2001] eKLR the court found that the objector was not a wife of the deceased, but that the children were dependant of the deceased. However in that case there was more than just the eulogy, there was evidence of the children being known to the family of the deceased long before his death, the aunts, friends and other relatives, there was more evidence than just attendance of the funeral.

61. On the 2nd issue, about the 2nd objector, the petitioner acknowledged the 2nd objector as a child of her husband and on the mistaken assumption that since she was already married she was not entitled to her father’s property. That was wrong because, she does not cease to be her father’s child due to marriage, and the petitioner ought to have included her as one of the beneficiaries of her father’s estate.

62. Does that finding require that the grant be revoked? I do not think so, because the inclusion of the 2nd objector would only require the redistribution of the estate so that she gets her share, the grant need not be revoked, since the petitioner was entitled under Section 66 of the Law of Succession Act to bring the Petition in the 1st place and to be issued with grant letters of administration.

63. Taking that into consideration I make the findings;

i. That the 1st Objector has not established that she was a wife of the deceased married under Tugen Customary Law.

ii. The 1st Objector has not established that her children were children/dependants of the deceased.

iii. That 2nd Objector is a child of the deceased and a beneficiary entitled to intent from the father’s estate.

64. The following orders issue:

i. The 1st Objector’s objection is dismissed.

ii. That the form P & A 5 be amended to include the name of the 2nd Objector.

iii. That the Certificate of Confirmation of Grant dated 30th November 2015 be and is hereby cancelled.

iv. That the Petitioners to file fresh Summons for Confirmation of Grant within sixty (60) days herein including the 2nd Objector as a beneficiary and the proposed mode of distribution of the estate

v. That each party to bear its own costs.

65. Right of Appeal 30 days.

Delivered virtually this 28th day of January 2021.

Mumbua T. Matheka

Judge

In the presence of:

CA: Edna

Mr. Akang’o for Objector

Mr. Keboga for the Petitioner