[2023] KEHC 25257 (KLR)

In re Estate of Vincent Kariuki Njoroge (Deceased) (Succession Cause 105 of 2019) [2023] KEHC 25257 (KLR) (10 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25257 (KLR)

Republic of Kenya

In the High Court at Kiambu

Succession Cause 105 of 2019

A Mshila, J

November 10, 2023

IN THE MATTER OF THE ESTATE OF VINCENT KARIUKI NJOROGE (DECEASED)

Between

Teresia Wanjiku Gitau

Applicant

and

Paul Kiarie Njoroge

1st Respondent

Carol Karungari Kariuki

2nd Respondent

Ruling

1. On October 7, 2019, Paul Kiarie Njoroge and Carol Karungari Kariuki petitioned this court for a grant of letters of Administration intestate for the estate of Vincent Kariuki Njoroge who died on April 6, 2018.

2. In objection to the making of a grant of representation to the estate of Vincent Kariuki Njoroge (deceased), Teresia Wanjiku Gitau filed her Objection to making of grant on January 14, 2020 as the wife of the deceased and on the grounds that she was not included as one of the administrators and that she was not informed when the petition was being filed and neither was her consent sought.

3. On September 10, 2020, Teresia Wanjiku Gitau filed her Affidavit in support of Objection to making of Grant sworn on March 5, 2020. She deposed that she is the widow of the deceased and the mother to Victor Lewis Gitau the deceased’s son. She stated that she lived with the deceased since 2017 and by that time Carol Karungari had already parted ways and separated from the deceased. She deposed that she was never informed of the succession cause herein neither was her consent sought. She listed additional assets belonging to the deceased. She averred that the deceased’s mother should not share in the deceased’s estate.

4. Paul Kiarie Njoroge filed his Replying Affidavit on as the deceased’s brother. He deposed that he does not recognize Teresia Wanjiku Gitau as the deceased’s wife as no customary marriage rites were done and in any case there was an existing marriage between the deceased and Carol Karungari. He averred that the Objector only lived with the deceased for one year and that she had not presented any evidence to prove that she was a wife to the deceased herein. He stated that he did not object to the bank accounts being included in the list of the deceased’s assets. He further stated that the two (2) bedroom villa was jointly owned by the deceased and Carol Karungari. With regard to Gatuanyaga/Ngoliba Block 3/23 and 3/30 he deposed that the same was sold during the deceased’s lifetime. Lastly he contended that his mother though listed as a beneficiary, is not interested in inheriting any share belonging to the deceased’s estate.

5. Carol Karungari Kariuki filed her Replying Affidavit on November 28, 2023. She deposed that she is the deceased’s wife and that they never divorced as such she is the legal wife and Teresia Wanjiku was introduced to her by the deceased as someone who was working on their shamba as such she is not a wife. Victor Lewis Gitau was said not to .be a biological son of the deceased though the deceased used to pay his school fees. She averred that the Objector was aware of the succession cause. She did not object to the inclusion of the deceased’s bank accounts and that she failed to include the two bedroomed villa as the same was jointly owned.

6. Teresia Wanjiku Gitau filed her supplementary affidavit where she stated that her marriage with the deceased was marriage by cohabitation and that Carol had walked out of her marriage on December 24, 2016 and only returned after the death of the deceased. She averred that the Petitioners did recognize her as a wife in the obituary and the funeral programme. She stated that the deceased’s mother and brother usually sent her money for her son’s school fees as well as for upkeep. She further stated that she retained the deceased’s motor vehicle while Carol took some of the household goods as such she had sufficient evidence that they regarded each other as husband and wife and that the deceased had accepted Victor as his step child whom he used to take care of. She averred that the Petitioners went behind her back when they filed the petition without her knowledge, consent and/or participation. With regard to the Malindi Villa, she stated that Carol never made any contribution as such the property is not joint. She urged the court to include her as an administrator and to also recognize her as the deceased’s wife and Victor to be recognized as the deceased’s son.

7. In his further affidavit filed on February 17, 2023, Paul Kiarie Njoroge stated that the Objector did cohabit with the deceased for one year and that she was recognized in the obituary and funeral programme to avoid drama. That he agreed to support the Objector for one year after the death of the deceased before she found a source of living. That the mere fact that the Objector had access to the deceased’s properties does not make her a wife. This information was said to be within her reach as she is the one who was living with the deceased prior to his death.

8. The matter was heard by way of viva voce evidence. Hereunder is a summary of the parties evidence.

Objectors Case 9. Teresia Wanjiku Gitau (PW1) testified that she lived together with the deceased as husband and wife as such sought to be made an administrator. She stated that together with the deceased’s mother they visited the chief’s office but along the way she was excluded. She wished to adopt her affidavits as her evidence in chief. She also produced her supporting documents as her exhibits.

Respondents Case 10. Carol Karungari Kariuki (DW1) prayed that her replying affidavit be adopted as her evidence in chief. She testified that the deceased was her husband from 2004 and the marriage was formalized in October, 2014. She stated that they separated on December 24, 2016 after she learnt that the deceased was having an affair and that Objector moved into her matrimonial home. She indicated that Objector was indicated as an interested party as she was not a wife to the deceased and that she acquired the deceased’s documents as she was living with the deceased at the time of his death. She stated that Objector was included in the obituary and funeral programme as the family did not want drama.

11. Paul Kiarie Njoroge (DW2) wished to adopt his affidavits as his evidence in chief. He stated that the deceased was his younger brother who was married to Carol Karungari but also cohabited with the Objector. He stated that the deceased informed him that Carol had left their home due to an argument and that he introduced Objector to him as a friend. He stated that he obtained the letter from the Chief to enable him file the Petition. That he recognised both Carol and the objector as wives of the deceased to avoid drama during the burial. He indicated that none of the Kikuyu customary rites were conducted for the Objector. He indicated that some properties were left out as they did not have the bank account details. He stated that since April 2019, he stopped supporting the objector and her son.

12. The court then directed the parties to file and exchange their Written Submissions. Hereunder is a summary of the parties rival submissions;

Objector’s Submissions 13. The Objector submits that she was a wife to the deceased as they lived together as husband and wife since 2017. She submitted that the deceased introduced her to his family and friends and that he had already separated with the 2nd petitioner. Reliance was placed in among other cases the case of Loise Selenkia vs Grace Naneu Andrew & another (2017) eKLR. The deceased had taken the objector’s son as his own and even paid his school fees. In any case the objector was recognized as a wife in the burial programme and the chief’s letter as such it was submitted that the petitioners’ interest is to disinherit the objector. Reliance was placed in the case of InRe estate of Robert Ngundo Nyiva (deceased) (2021) eKLR. She submitted that she lived together with the deceased and his children and that she accompanied the deceased’s to family events as such their relationship cannot be mere friendship. She contended that they did not formalize their marriage as the same was cut short by the demise of the deceased. Reliance was placed in the case of InReestate of Christopher Geofrey Onzele Indure (deceased) (2021) eKLR it was submitted that when the 2nd petitioner moved out leaving her children, the objector and the deceased lived together with their children as a family. It was submitted that the petitioners have not produced any documentation to prove that the objector is not a wife to the deceased. The objector submitted that her son was a dependant of the deceased as they had grown fond of each other and he used to pay his school fees. The reference by the petitioners that the objector’s son was a son to the deceased was said not to be taken as an error as the petitioners knew that the deceased had assumed fatherly duties. It was submitted that the deceased even moved the objector’s son to the same school as his son as such the objector and her son were the dependants of the deceased until his demise.

Petitioners’/respondents’ Submissions 14. The petitioners’ submit that the objector is not a wife to the deceased. The deceased was legally married to the 2nd petitioner and the objector’s claim that she is a widow to the deceased is only because they were living together with the deceased before his death. Cohabitation of one year was said not to hold sufficient ground as it does not amount to a long term relationship Reliance was placed in the case of Eva Naima Kaaka & another vs Tabitha Waithera Mararo (2018) eKLR cited in LNN vs MKNG (2020) eKLR. The objector was said to have failed to demonstrate acts of general repute as such had failed to meet the necessary threshold of presuming a marriage. It was submitted that the deceased was still married to the 2nd petitioner as such had no capacity to contract another marriage. Reliance was placed in the case of MNK vs POM (2023) KESC 2 (KLR). It was submitted that the objection does not meet the necessary threshold of objector being considered as a widow of the deceased as such she is not a beneficiary and or dependant of the deceased’s estate. With regard to whether the objector’s son is a dependant of the deceased’s estate, the petitioners contend that the objector’s son was not a son of the deceased and that the deceased was helping other person’s children through payment of their school fees as such the objector should not claim a stake of the estate of the deceased estate as a beneficiary and/or dependant.

Issues For Determination 15. After due consideration of the objection to Petition of letters of administration, the Replying Affidavit and the rival submissions by both parties, the issues framed for determination are;i.whether there can be a presumption of marriage and whether the objector be included as an administrator in the making of a Grant; andii.whether the objector’s son should be considered as a dependant to the estate of the deceased.

Analysis Whether there can be a presumption of marriage and whether the Objector be included as an administrator in the making of a Grant; 16. The objector herein stated that she was living with the deceased as husband and wife since 2017 together with her son and deceased’s children. She indicated that the deceased introduced her to his family as his wife. She also averred that the deceased had separated with the 2nd respondent. She stated that the deceased had taken her son as his own as he was paying his school fees. Lastly, she stated that the respondents recognized her as the deceased’s wife in the obituary and burial program.

17. The respondents submitted that the deceased was legally married to the 2nd respondent as such lacks capacity to enter into another marriage. They also stated that cohabitation of one year is not sufficient to be considered as marriage. The objector was said to have failed to demonstrate acts of general repute therefore, she failed to meet the threshold of presumption of marriage. As much as the deceased was paying school fees for the objector’s son, the child was said not to be a dependant as the deceased was in the habit of helping people with school fees.

18. It is trite law that he who alleges must prove. In the case of Christopher Nderi Gathambo and Samuel Muthui Munene (2003) eKLR the court relied on the wisdom in Bromley Family law 5th Edition 64 where the author stated that;“if a man and a woman cohabit and hold themselves out as husband and wife, this in itself raises a presumption that they are legally married and when it is challenged, the burden lies on those challenging it to prove that there was in fact no marriage, and not upon those who rely on it to prove that it was solemnized”

19. Further, it is trite law that he who alleges the existence of certain facts must prove its existence. Accordingly, section 109 of the Evidence Act provides that:-“The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence unless it is provided by any law that the proof of that fact shall lie on any particular person.”

20. The objector herein and the deceased only cohabited for close to one year. The objector contends that their union was cut short by the death of the deceased. The respondents on the other hand aver that the deceased introduced the objector as his friend as such she cannot be a wife as she only lived with the objector so as to avoid paying rent for two houses.

21. It is trite law that for anyone to claim presumption of marriage, there has to be long cohabitation and acts of general repute. Refer to the case of Phylis Njoki Karanja & 2othersvsRosemary Karanja & another (2009) eKLR.

22. The objector stated that she was included and described as a wife to the deceased both in the obituary and in the burial program. There was also a chief’s letter where she was indicated as the widow and at one point she was indicated as an interested party. The Respondents contend that the objector was included as a wife to avoid drama during the burial.

23. In Eva Naima Kaaka & another vs Tabitha Waithera Mararo [(2018) eKLR, the Court of Appeal defined acts of general repute that would give rise to a presumption of marriage as follows –‘… Acts of general repute, are synonymous with the impression, or assessment of the couple as perceived by the general public, including relatives and friends. By their nature they are a determinant of whether a presumption of marriage can be found to exist…No evidence was led to demonstrate that Waithera and the deceased shared activities typical of married couples, and supportive of long cohabitation and that would give rise to acts of general repute. No family photographs, gifts or other memorabilia were produced as evidence, and there was no witness evidence from persons who might have regularly come into contact with the deceased and Waithera during the alleged period of cohabitation.’

24. Having considered the above, this court is not satisfied that the deceased and the objector cohabited for long enough for there to be a presumption of marriage. As much as the two cohabited together for one year there is no evidence of demonstration to the general public that they were staying as husband and wife and she also failed to demonstrate acts of general repute.

25. In any event the deceased was still legally married to the 2nd respondent as such lacked capacity to enter into another marriage with the objector. Refer to the Supreme Court case of MNK v POM (2023) eKLR.

Whether the Objector’s son should be considered as a dependant to the estate of the deceased. 26. With regard to whether the objector’s son is a dependant of the deceased’s estate, the objector claims that she moved in with the deceased together with her son and that the deceased took her son as his own where he took care of him and also paid his school fees. That the deceased also moved her son to the same school as the deceased’s son as such her son should be held to be a dependant in the estate of the deceased.

27. Section 29 of the Law of Succession Act provides that;-‘For the purposes of this 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;b.such of the deceased’s parents, step-parents, grand-parents, grandchildren, step-children, children whom the deceased had taken into his family as his own, brothers and sisters, and half-brothers and half-sisters, as were being maintained by the deceased immediately prior to his death; andc.where the deceased was a woman, her husband if he was being maintained by her immediately prior to the date of her death.’

28. In RNM vs. RMN [2017] eKLR the court stated that;-“Proof of dependency is thus a condition precedent to the exercise of the discretion in section 29(b) cited hereinabove. In addition, while considering the meaning of a dependant under Section 29 of the Act, the court held as follows in the case of Beatrice Ciamutua Rugamba vs Fredrick Nkari Mutegi & others, Chuka Succ Cause No 12 of 2016: -"From the foregoing, a dependant under section 29 (b) and (c) must prove that he/she was being maintained by the deceased immediately prior to his demise. It is not the mere relationship that matters, but proof of dependency."

29. The need to prove dependency was stated by the Court of Appeal in Ngengi Muigai &another vs. Peter Nyoike Muigai & 4others (2018) eKLR where the court stated that -‘…So that, a child as defined under section 3 (2) of LSA, that is to say, a biological child as well as any child whom a man "has expressly recognized or in fact accepted as a child of his own or for whom he has voluntarily assumed permanent responsibility" shall be an automatic dependant under section 29 (a). Mugo, whom we have found to have been a biological son, although the deceased had not expressly recognized him as such, would be entitled to automatic provision of reasonable dependency provision. Nyoike, on the other hand, would also be entitled to reasonable dependency provision if he could prove that the deceased had taken him into the family as his own child and was maintaining him immediately prior to his death.’

30. The objector stated that Victor was not the biological child of the deceased but the deceased had taken him as his own son and that they had a good relationship. The 1st respondent in explaining why he continued to support the objector and her son after the death of the deceased for one year stated that he wanted them to be able to stand on their ground.

31. From the evidence adduced this court is satisfied that the respondents’ were aware that the deceased was maintaining the objector’s son as he was providing a shelter for him, paying his school fees as well as other needs as such the 1st respondent felt obligated to step in before the objector established herself together with her son.

32. In the circumstances therefore, this court finds that the objector’s son is a dependant to the estate of the deceased as the deceased was taking care of him and maintained him prior to his death.

Findings And Determination 33. From the forgoing this court makes the following findings and determinations;i.This court finds that the objector failed to prove the presumption of marriage to the desired threshold. The objection to be included as an administrator in the making of the Grant is found to be devoid of merit and it is hereby dismissedii.The Objection is found to be partially meritorious only on the issue of dependency of the objectors son;iii.The Objectors son is found to be a dependant in the estate of the deceased;iv.The Respondents are at liberty to pursue issuance of the Grant and or Confirmation of the Grant.v.Each party to bear their own costs.vi.Mention on February 28, 2024 for directions.Orders Accordingly

DATED SIGNED AND DELIVERED VIA TEAMS AT KIAMBU THIS 10TH DAY OF NOVEMBER, 2023. A. MSHILAJUDGEIn the presence of;Mourice – Court AssistantOndege – for the 1st and 2nd Petitioner/RespondentsGathua Njeri – for Objector.