[2017] KEHC 9420 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

FAMILY DIVISION

SUCCESSION CAUSE 2954 OF 2002

IN THE MATTER OF THE ESTATE OF T O O (DECEASED)

JUDGMENT

The deceased died on 11th February 1992.

On 13th June 2002 Marie D A O widow of the deceased filed petition for letters for administration to the deceased's estate. She attached their marriage certificate confirming that they were married on 22nd November 1980 at the Registrar of Marriages office and birth certificate of their daughter born on 5th December 1981.

The survivors of the deceased were listed as;

a) M D A O- widow

b) V E A O-daughter

On 29th March 2003 M A O filed Answer to Petition and cross petition. She stated she was married to the deceased on 15th June 1991 under Luo customary marriage and dowry comprising of 3 head of cattle was paid to her parents. The deceased built her a house at the rural home according to Luo customary Law. The deceased and her had a son born 7th February 1992 as per birth certificate annexed to the cross petition marked MAO3.

The Objector in the supporting affidavit to the cross petition she listed the beneficiaries of the deceased's estate as;

a) M A O - widow

b) T O O Junior-son

c) M D A O- widow

b) V E A O-daughter

The matter proceeded for hearing on 26th October; 2016 exparte. The Petitioner was served as shown by filed affidavit of service on19th October 2016 through her advocates on record Messrs William & Case Associates at Embassy House, 1st Floor, Room No 117, Harambee Avenue, Nairobi. Annexed is the hearing Notice duly stamped 'Received' with the Law firm stamp on 14th October 2016.

PW1 M A O reiterated the contents of the Answer to petition, Cross Petition and Witness Evidence Affidavit. She said that she was married to the deceased in a ceremony conducted at her home. The deceased visited with his brother R O O in the presence of village elders and her father (now deceased) and her Uncle and other womenfolk who celebrated the occasion.

The Objector lived with the deceased and son in the suit property Nairobi Block/[particulars withheld] a house in Buruburu estate. At some time it was encumbered with a charge by Housing Finance Company Limited (HFCK) and has since been discharged. She stated she has been residing in the said house until now and maintained the house and carried out repairs for the last 19 years now.

PW2 R O O testified and relied on his affidavit and Witness Evidence Statement. He stated he was his brother's follower; younger brother to the deceased. He confirmed that he witnessed the Luo customary marriage by the deceased to the Cross Petitioner. He confirmed that the dowry of 3 head of cattle was paid. He stated that his brother, the deceased told him that he married M D A in a civil marriage and in 1986. She deserted their matrimonial home and left and carted away all household goods and personal effects of the deceased. She later instituted court proceedings against him as follows;

a) Nairobi R.M Divorce Cause no 25 of 1989

b) Nairobi HCCC NO. 5139 OF 1991 (O.S)

c) Nairobi R. M. Maintenance cause No 4 of 1986

The first wife relocated to London and only came to her father-in-law's funeral. She did not attend the deceased's funeral.

The Petitioner did not attend Court despite service; therefore she did not offer oral evidence. However, the Court record confirms that she made spirited efforts to have this matter heard on occasions she travelled from UK. Apart from the petition; she filed application under certificate of urgency on 2nd March 2011 and 14th March 2013 urged the Court to have her matter heard expeditiously due to hardship in travelling from abroad on every occasion. The same was adjourned as the Cross petitioner was not in court. Later the cross petitioner swore Replying Affidavit on 29th March 2011 and cited various instances that the matter came for hearing and the Petitioner was absent.

The Petitioner's case as pleaded in her pleadings is that she was married to the deceased and they had their daughter. She attached copy of Marriage Certificate and Birth Certificate respectively. They bought the suit property Nairobi/Block/[particulars witheld] Buruburu which property was registered in his name. She resides and works in UK and the Cross petitioner took advantage and illegally collects rent from the said property from 1992 to date without accounting for it. The Cross petitioner tried to illegally obtain title to the said suit property.

DETERMINATION

The issues for analysis are;

a) Whether the PetitionerM D A O and Cross petitioner M A O are widows of deceased for purposes of Succession proceedings;

b) Whether the son T O O Junior and daughter V E A O are children of the deceased and therefore beneficiaries of the estate;

c) Who should be appointed administrator(s) to the deceased's estate?

d) Should the petition and/or cross petition be upheld?

e) The grant of letters of administrators should be issued to whom?

The Petitioner confirmed from the certificate of marriage attached to her application; she was married to the deceased in 1981 and separated in 1986. They had a daughter as confirmed by birth certificate attached. No evidence to the contrary has been adduced and the evidence is uncontroverted. Although the Petitioner filed divorce proceedings, the outcome was not disclosed. However, even if there was divorce; for purposes of Succession; the Petitioner is a dependent of the deceased's estate.

Section 29 of law of Succession Act prescribes;

For purposes of this Part, dependent 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;

The Cross Petitioner pleaded and testified that she was married under Luo Customary law on 15th June 1991. The deceased came with his brother R O O (PW2) and his other brother now deceased to her home. They found her late father, her father's brother Mr. Ochieng who resides in Ugenya and there were aunties and many women who celebrated the occasion. The deceased paid 3 head of cattle as dowry and PW2 corroborated this evidence. The Cross Petitioner lived with the deceased and they had a son; until his death and she buried him at his home.

In Restatement of African Law by Eugene Cotran in respect o the essentials of a valid marriage under Luo customary law at pg 175 states;

The following are the essentials of a valid marriage under Luo customary Law;

a) CAPACITY: the parties must have the capacity to marry andalso the capacity to marry each other.

b) CONSENT: The parties to the marriage and their respective families must consent to the union

c) DHO I KENY: There can be no valid marriage under Luo Law unless a part of the dho i keny has been paid.

d) COMMENCEMENT OF COHABITATION: The moment at which a man and woman become husband and wife legally is when the man and woman commence cohabitation i.e. when the bride is deflowered after meko.

In GITUANJA vs GITUANJA (1983) KLR it was held;

The existence of a customary marriage is a matter of fact which is proved with evidence.

From the above provisions, the Cross petitioner has proved on balance of probabilities that the deceased contracted a Luo customary marriage and her evidence was supported by the deceased's brother (PW2) who witnessed the ceremony and that dowry was paid in terms of 3 head of cattle. The deceased also built her a home in their rural home as is required under Luo customary law. The deceased and Cross petitioner and child lived together until his death. This evidence was not controverted by any other evidence. The Cross petitioner proved marriage under Luo customary law.

In ROSEMARY AOKO MUNJAL VS NOEL NAMENYA MUNJALSUCCESSION CAUSE 4 OF 2008 HIGH COURT BUSIA [2015]

The Trial Court considered the import of Section 3(5) Law of Succession Act which states;

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 Section 29 & 40 thereof, and her children are accordingly children within the meaning of the Act.

The Trial court cited the case of IRENE NJERI MACHARIA vs MARGARET WAIRIMU NJOMO& ANOTHER [1996] eKLR where the Court of Appeal interpreted Section 3(5) of Law Of Succession Act as follows in line with other cases;

Our understanding of Section 3(5) of the Act is that it was expressly intended to cater for women who find themselves in a situation in which Josephine found herself, Mutua previous to his union with Josephine, had contracted a statutory marriage which remained undissolved upto the time of his death. But subsequent to that marriage, he purported to marry Josephine under Kamba customary law. Kamba customary law recognizes polygamy and Josephine was telling the Court that she was a woman married under a system which recognizes polygamy.....Parliament in its wisdom and whatever it might have intended to do, provided that; Notwithstanding the provisions of section 37 of the Marriage Act.....

Although M D A O and the deceased contracted a statutory marriage, from the above provisions and case-law for purposes of Succession proceedings, M A O I also a widow of the deceased as she contracted a marriage under Luo customary Law as proved by evidence on record. There is no contest that the deceased had a daughter with Petitioner and son with cross Petitioner.

With regard to appointment of administrators of the deceased's estate; Section 66 of law of Succession Act is instructive;

When a deceased has died intestate, the Court shall, save as otherwise expressly provided, have a final discretion as to the person or persons to whom a grant of letters of administration shall, in the best interests of all concerned, be made, but shall without prejudice to that discretion, accept as a general guide the following order of preference;

a) surviving spouse or spouses with or without association of other beneficiaries;

b) other beneficiaries entitled on intestacy, with priority according to their beneficial interests as provided by Part V;

c) the Public Trustee; and

d) Creditors

The administrators of the estate of the deceased can only be appointed from his family as beneficiaries of his estate. From the evidence on record, this Court is satisfied that the deceased was married to both widows the Petitioner and Cross Petitioner. They were in his life at different times and part of his life. They are both beneficiaries with their children to the deceased's estate. They shall jointly be administrators of the deceased's estate.

DISPOSITION

1. The petition and Cross petition are upheld.

2. M D A O and M A O widows of the deceased are joint administrators of the deceased's estate.

3. The beneficiaries of the deceased's estate are;

a) M A O - widow

b) T O O Junior-son

c) M D A O- widow

d) V E A O-daughter

4. The suit property Nairobi/Block/[particulars withheld] Buruburu shall be distributed to all beneficiaries.

5. The administrators shall file summons for confirmation of grant within 60 days from today

6. Any aggrieved party may file protest to be determined by Court.

7. Each party to bear own costs.

It is so ordered.

DELIVERED, SIGNED & DATED IN OPEN COURT IN NAIROBI ON 7TH OCTOBER, 2017.

M. W. MUIGAI

JUDGE