[2019] KEHC 225 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT ELDORET

PROBATE & ADMINISTRATION CAUSE NO. 59 OF 2007

IN THE MATTER OF THE ESTATE OF WILLIAM KIPKOSGEI KIPTUM (DECEASED)

AND

IN THE MATTER OF AN OBJECTION TO THE MAKING OF GRANT

BETWEEN

ESTHER JEPTANUI KIPTOO...............................................................1ST OBJECTOR

EDNA JESANG KOSGEI.......................................................................2ND OBJECTOR

AND

EUNICE CHEBICHII KIPKOSGEI...................................................1ST PETITIONER

VIOLAH CHERUTO KIPTUM..........................................................2ND PETITIONER

JUDGMENT

[1]The deceased herein, William Kipkosgei Kiptum, died intestate on 1 June 2006 at the age of 50 years. Following his demise, this Succession Cause was filed on behalf of his estate by the 1st Petitioner, Eunice Chebichii Kipkosgei, in her capacity as the deceased’s widow; jointly with her daughter, Viola Cheruto Kiptum, as the 2nd Petitioner. The Petition was filed on 27 February 2007. The value of the estate was then estimated to be Kshs. 1,000,000/=.

[2] It so happened that on the 5 March 2007, parallel proceedings were commenced by way of another Succession Cause, being Eldoret High Court Succession Cause No. 67 of 2007, in respect of the same estate, purportedly by Esther Jeptanui Kiptoo, Eunice Kosgei Kiptumand Edna Jesang Kosgei. In the subsequent matter, it was represented that the deceased was survived by two widows, the 1st Objector and the 1st Petitioner; and their 5 children. In this 2nd Cause, the value of the estate was given as Kshs. 20,000,000/=. At the same time, two of the Petitioners in Eldoret High Court Succession Cause No. 67 of 2007, namely, Esther Jeptanui Kiptoo and Edna Jesang Kosgei, also filed their Objection to the making of a grant herein. The same was filed on 28 May 2008. Thereafter, the Objectors filed their Answer to the Petition for Grant and Petition by way of Cross-Application for Grant.

[3] When this state of affairs was brought to the attention of the Court, directions were made for the consolidation of this cause with Eldoret High Court Succession Cause No. 59 of 2007, and that this cause be the lead file. Directions were also given, inter alia, that the two Petitions be disposed of by way of viva voce evidence; and that the Objectors in this matter be deemed to be the Plaintiffs; while the Petitioners be deemed to be the Defendants. Accordingly, hearing in the matter commenced on 9 February 2009 before Hon. Ibrahim, J. (as he then was) but could not, for one reason or another, be completed until 1 April 2019.

[4] At the centre of this dispute is the question as to whether the Objectors are entitled to a share of the estate of the deceased; the contention of the Petitioners being that the deceased was married to only one wife; and that is the 1st Petitioner; and that together they had 4 children, namely: Viola Cheruto Kiptum, Amos Kiprono Kiptum, Loice Cheptanui Kiptumand Flevian Kipkemboi Kiptum. The contention of the Objectors on the other hand is that, prior to marrying the 1st Petitioner, the deceased had contracted a customary law marriage with the 1st Objector and sired the 2nd Objector, Edna Jesang Kosgei; and that they too have a right to the deceased’s estate as his beneficiaries.

[5] In support of their case the Objectors testified on 9 February 2009 and 18 May 2009 as PW1 and PW2. In her evidence the 1st Objector told the Court that he got to know the deceased in 1981 and agreed to marry him; whereupon the deceased visited her parents to ask for her hand in marriage. She further stated that with the consent of their parents, they got married under Keiyo Customary Law and thereafter lived as husband and wife in Kaprobu in Soy. In the course of their cohabitation they were blessed with one child in 1982, namely, Edna Jesang, the 2nd Objector.

[6] It was the testimony of PW1that, as she was sickly, frequent disputes began to rock their marriage; and that ultimately, they separated and she went back to her parents. She however contended that she maintained her relationships with her in-laws; and that although she initially went with the 2nd Objector, she later released her to go and stay under the care of her mother-in-law. She added that it was upon the subsequent demise of her mother-in-law that the 2nd Objector went back to stay with her at her parent’s home. It was further the evidence of PW1that when the deceased died, she went for his funeral and that thereafter, a memorial was held which she also attended. She added that during the memorial the property of the deceased was divided between the two houses. She therefore acknowledged that after their separation, the deceased contracted a second marriage to the 1st Petitioner, with whom he had other children. She produced as exhibits a Certificate of Death in respect of the deceased and Certificates of Official Search for two of the deceased’s pieces of land No. Moiben/Moiben Block (Merewet) 153 and 228 (marked the Plaintiffs’ Exhibits 1, 2 and 3, respectively).

[7] The 2nd Objector told the Court that the deceased was her father; and that he died in June 2006. She likewise acknowledged the 1st Petitioner as the deceased’s second wife. She stated that she used to stay with her grandmother after the separation of her parents; and that her mother would visit them from time to time. She added that, as she grew up towards adulthood, her father had assured her that he would give her a portion of his land; and that the decision was endorsed by the elders after the death of the deceased.

[8] John Kiptanui Too (PW3), told the Court that he knew the deceased, William Kipkosgei Kiptum; and that it was within his knowledge that he got married to the 1st Objector in 1981; and lived with her until 1984 when the 1st Objector left and went back to her parent’s home. He also stated that he was present when the marriage ceremony was conducted and acted as the “Motiriot” and untied the couple after the parents of the 1st Objector consented to the union.

[9] The last witness for the Objectors was Dr. Omar J. Ally (PW4). His evidence was basically that the deceased was one of his patients and that he would visit his clinic from time to time for treatment for depression up to the time he died. He produced a Medical Report he prepared and signed as the Plaintiffs’ Exhibit No. 4; and with that the Objectors closed their case.

[10] On her part, the 1st Petitioner, Eunice Chebichii Kipkosgei (PW1) told the Court that she got married to the deceased on 20 November 1999 at Chemina Catholic Church and were thereafter blessed with four issued. She produced the Marriage Certificate as the Defence Exhibit No. 1. She denied any knowledge of the Objectors and asserted that they are not at all entitled to a share of the estate of the deceased. She further refuted the assertions by PW4 that the deceased was mentally ill and urged the Court to dismiss the Objection and the Cross-Petition filed by the Objectors.

[11] The 2nd Objector, Viola Jeruto Kiptum (DW2) reiterated the testimony of her mother, DW1, to the effect that the deceased was her father and that he died in 2006 while she was in Form IV. It was her evidence that, in his lifetime, the deceased was mentally fit and went about his affairs without any problem. DW2denied any knowledge of the Objectors and asserted that they have no right to her father’s estate. She likewise denied having signed any of the papers filed by the two Objectors in Eldoret High Court Succession Cause No. 67 of 2007 and prayed for the dismissal of the Objection application with costs.

[12] At the close of the hearing, the parties were given an opportunity to file and exchange their written submissions. In the written submissions filed by Ms. Tum ofBirech, Ruto & Co. Advocates on 28 February 2019, a single issue was proposed for determination; namely, whether the Objectors and the Petitioners are beneficiaries of the estate of the deceased. She cited Section 60 of the Evidence Act, Chapter 80 of the Laws of Kenya, and the case of Hortensia Wanjiku Yawe vs. Public Trustee, Civil Appeal No. 13 of 1976 in urging the Court to find that the marriage between the deceased and the 1st Objector was celebrated in accordance with Nandi Customary Law and that all the requirements for the validity of such a marriage were fulfilled and proved by the Objectors; such as the payment of dowry and the presence of a “Boiyoptum”. Counsel also referred the Court to the Restatement of African Law of Marriage and Divorce by Eugen Cotran and the case of Loise Selenkia vs. Grace Naneu Andrew & Another [2017] eKLR, in urging the Court to find that the Objectors and the Petitioners are all beneficiaries of the estate of the deceased.

[13] On his part, Mr. Kiboi, Learned Counsel for the Petitioners, proposed more or less similar issue but differently put, namely:

[a] Whether or not the 1st Petitioner is the legal wife of the deceased and therefore a dependant in terms of Section 29(a) of the Law of Succession Act;

[b] Whether or not the 1st Objector is the legal wife and/or former wife and therefore a dependant of the deceased in terms of Section 29(a) of the Law of Succession Act;

[c] Whether the 2nd Objector is the child of the deceased herein and therefore a dependant in terms of Section 29(a) of the Law of Succession Act;

[d] Whether or not the children of the 1st Petitioner are dependants in terms of Section 29(a) of the Law of Succession Act; and,

[e] Who should be the administrator(s) of the estate of the deceased person.

[14] Mr. Kiboiurged the Court to find that the 1st Objector had utterly failed to prove that she got married to the deceased under any known system of marriage; and that she also failed to challenge the marriage between the 1st Petitioner and the deceased; which being monogamous could not have been compatible with another marriage. In the same vein, Mr. Kiboi submitted that the only way of proving that the 2nd Objector is indeed a daughter and therefore a dependant of the deceased would have been through DNA test; which was not done. He therefore urged the Court to find that the deceased died intestate and left only one widow, the 1st Petitioner and her four children; and that the Objectors are not entitled to either administer the deceased’s estate or share therein. In his view, the Petition filed by the Objectors in Eldoret High Court P&A No. 67 of 2007 ought to be dismissed and the grant issued therein revoked; and that in this case, the Objection and Cross-Petition filed by the two Objectors should likewise be dismissed with costs.

[15]Having carefully considered the documents filed herein, the proceedings on the record as well as the written submissions filed by Learned Counsel for the parties, there is no dispute that the deceased, William Kipkosgei Kiptum died on the 1 June 2006 and left behind some property comprising his estate. The particulars thereof were supplied herein in the Petitioners’ Affidavit in Support of Petition for Letters of Administration Intestate (Form P&A 5) to be 3 parcels of land known as MOIBEN/MOIBEN BLOCK 5 (MEREWET)153; MOIBEN/MOIBEN BLOCK 5 (MEREWET) 257 and MOIBEN/MOIBEN BLOCK 5 (MEREWET) 228. I note however that, in Eldoret High Court P&A 67 of 2007, the 1st Objector included movable property in the list of assets. No serious objection was taken to this during the hearing.

[16]Although Mr. Kiboi made heavy weather of the question as to whether or not the deceased was married to the 1st Petitioner, this was in my view a non-issue; for the simple reason that the Objectors did not dispute the second marriage. They, in fact, acknowledged it and focused their attention on the fact that the “tent” of the deceased should be widened, so to speak, to include them as the 1st House. Secondly, and more importantly, the 1st Petitioner produced a Marriage Certificate to demonstrate that she got married to the deceased in a church ceremony celebrated at Chemina Catholic Church on 20 November 1999. Likewise, the Objectors did not raise any issue to contradict the assertion by the Petitioners that the four children of the 1st Petitioner, including the 2nd Petitioner are children of the deceased and therefore his dependants.

[17] A thinly veiled disputation to the deceased’s second marriage could be attributed to the evidence of Dr. Ally, PW4. However, in my perusal and consideration of that evidence, the role and place of PW4’s evidence did not come out clearly, or enmesh well with the general framework of the Objectors’ case. He testified that the deceased used to visit his clinic for treatment for depression; and that he saw him as a patient between 1993 and May 2006. In his report, PW4 expressed his opinion thus:

“Severe depression is a mental illness that affects an individual; one loses interest in his life, work and family. At times he could not make decisions concerning his life and welfare. He was making wrong decisions for himself. The patient can also be confused and low in his moods. He continued to be on medication and psychotherapy…”

[18] PW4, however, conceded in cross-examination that the deceased was otherwise normal and would carry on his life and make decisions for himself. So that, when Counsel for the Objectors submitted that at the time the deceased contracted his second marriage in 1999 he was not in the proper frame of mind to make sound decisions, it does not seem to have the support of PW4’s evidence and Medical Report. At any rate, the 1st Objector had the liberty to raise an objection to the marriage at the opportune time, but chose not to.

[19] Thus, the only issues for my determination is whether or not the 1st Objector was married to the deceased as alleged and whether the 2nd Objector was sired by the deceased during such coverture so as to qualify as a dependant of the deceased. In this respect, the 1st Objector adduced evidence to the effect that she got to know the deceased in 1981 and got married to him in accordance with Nandi Customary Law, in respect of which it is stated thus in the Restatement of African Law, The Law of Marriage and Divorce (supra) at page 116 as to marriage ceremonies and formalities:

“…When all the preparations are ready, the bride arrives. The ceremony is presided over by a senior elder who sits in the centre, surrounded by the couple and their motirenik (singular: motiriot) who are a married couple who act as best man and matron of honour to the bridal couple…The essence of the ceremony is the tying of the segutiet grass…Among the Nandi, the male motiriot ties a piece of the grass to the right wrist of the boy, whilst the female motiriot ties a piece of grass round the girl’s neck. The couple are now husband and wife.”

[20]Thus, PW1 told the court that the deceased visited her parents to ask for her hand in marriage; which consent was accordingly granted. She further stated that a ceremony was then conducted by PW3 in which she was released to go and cohabit with the deceased as his wife after dowry was negotiated. She added that they lived with the deceased as such in Kaprobu in Soy. In the course of their cohabitation they were blessed with one child in 1982, namely, Edna Jesang, the 2nd Objector.

[21] The evidence of the existence of the marriage between the deceased and the 1st Objector was augmented by the evidence of PW3, one of the elders who participated in the traditional ceremony and acted as the “Motiriot.” He testified that he untied the couple after the parents of the 1st Objector consented to the union in a ceremony where the bride and groom were tied with grass-knot by the officiating elders. It is noteworthy that this evidence was entirely uncontroverted as the 1st Petitioner only came into the deceased’s life about 17 years later and said she did not know PW1 and was never informed that the deceased had a first wife.

[22] Section 107(1) of the Evidence Act, Chapter 80of theLaws of Kenya,provides that:

Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.

[23] Thus, I would endorse the expressions of Mabeya J. in Safarilink Aviation Limited vs. Trident Aviation Kenya Limited & Another [2015] eKLR, that:

"...failure to rebut evidence tendered by one party leaves the court with no option but to draw an inference that the facts as presented are true..."

[24]I am therefore satisfied that the 1st Objector has proved on a balance of probabilities that she got married to the deceased under customary law and that their married was blessed with one issue, the 2nd Objector. Having so found, it is pertinent to consider the effect of the nature of the subsequent marriage contracted between the deceased and the 1st Petitioner and whether it obliterated completely the prior customary marriage between the deceased and the 1st Objector. The submission of Mr. Kiboi was that the only legally recognized marriage the deceased contracted is that between him and the 1st Petitioner; which is indeed true, looking at it from the prism of Section 9(a) of the Marriage Act. It provides that:

“Subject to Section 8, a married person shall not, while in a monogamous marriage, contract another marriage.”

[25] In the instant matter, the 1st Objector’s marriage preceded the 1st Petitioner’s union with the deceased. Indeed, it was the 1st Objector who ought to complain that the deceased lacked the capacity to contract a subsequent monogamous marriage with the 1st Petitioner. However, for purposes of the Law of Succession Act, Section 3 thereof defines a “wife” to include a wife who is separated from her husband. And in Section 3(5), the Act stipulates 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.”

[26] Moreover, in Section 29 of the Law of Succession Act, a dependant is defined thus:

“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.”

[27] In the premises, I am satisfied that both the 1st Objector and her daughter, the 2nd Objector are dependants of the deceased and are therefore entitled to apply for appointment as administrators of his estate alongside the two Petitioners, and to benefit therefrom in the manner set out in Section 40 of the Law of Succession Act, namely: according to the number of children in each house, and treating the 1st Petitioner and the 1st Objector as additional units to the number of the deceased’s children.

[28] Accordingly, I would allow the Objection application dated 28 May 2007 and issue orders as hereunder, taking into account the Petition, Cross-Petition herein and the Petition filed in Eldoret High Court P&A Cause No. 67 of 2007:

[a] That the Petitioners, Eunice Chebichii Kipkosgei and Violah Cheruto Kiptum, and the Objectors, Esther Jeptanui Kiptoo and Edna Jesang Kosgei, be and are hereby appointed to act jointly as the personal representatives of the deceased, William Kipkosgei Kiptum; and that a Grant of Letters of Administration Intestate in respect of the estate of the deceased be accordingly issued forthwith in their joint names;

[b] That an application for Confirmation of Grant be filed herein to determine the question of distribution not later than 3 months from the date hereof;

[c] That costs be in the cause.

It is so ordered.

DATED, SIGNED AND DELIVERED AT ELDORET THIS 8TH DAY OF NOVEMBER, 2019

OLGA SEWE

JUDGE