[2024] KEHC 13803 (KLR)

In re Esttae of John Mwaniki Kahiro (Succession Cause 12 of 2015) [2024] KEHC 13803 (KLR) (19 September 2024) (Judgment)

Neutral citation: [2024] KEHC 13803 (KLR)

Republic of Kenya

In the High Court at Kajiado

Succession Cause 12 of 2015

SN Mutuku, J

September 19, 2024

Between

Rodha Wanja Mwaniki

1st Petitioner

Charles Kahiro Mwaniki

2nd Petitioner

Mary Nyambura Mwaniki

3rd Petitioner

and

Rahab Wangui Mwaniki

1st Protestor

Gilbert Maina Mwaniki

2nd Protestor

Judgment

1. Under consideration in this judgment is the Summons for Confirmation of Grant dated 9th April 2014 filed by the Administrators of the estate of the John Mwaniki Kahiro, deceased, and a Protest filed through an Affidavit of Protest filed on 6th June 2014.

2. Court records show that the Grant of Letters of Administration Intestate in respect of the Estate of this estate was issued on 20th May 2008 to Rodha Wanja Mwaniki, Mary Nyambura Mwaniki and Stephen Waweru Mwaniki. An objection was raised by Rahab Wangui Mwaniki and Gilbert Maina Mwaniki through Summons for Revocation of the Grant dated 18th January 2019 seeking to have the of the Grant revoked. Directions were given that the matter proceeds by way of oral evidence.

3. On 30th January 2018 hearing commenced before Hon. Mr. Justice Nyakundi who took evidence of Gilbert Maina Mwaniki the 2nd Protestor. Mr. Justice Nyakundi was transferred before completing the hearing. On 12th March 2019, the matter was placed before Hon. Mr. Justice Mwita who took over duties at Kajiado High Court.

4. On 10th July 2019, Hon. Mr. Justice Mwita allowed withdrawal of the Summons for Revocation of the Grant dated 18th January 2019 and filed on 22nd January 2019; directed that the Summons for Confirmation of Grant dated 9th April 2019 be heard de novo and granted leave of 21 days to the Administrators to include parcel No. Gilgil/Gilgil Block 1/5655 in the estate of the deceased and propose the mode of distribution of the entire estate taking into account all beneficiaries except where there may be dispute and serve this on all the parties. The Protestors were granted liberty to file Protest within 21 days from the date of service.

Summons for Confirmation 5. The Summons is dated 9th April 2014 and seeks confirmation of the Grant issued on 20th May 2008. The Administrators listed the following as the beneficiaries:a.Rhoda Wanja Mwaniki - Widowb.Charles Kahiro Mwaniki – Sonc.Mary Nyambura Mwanikin – Daughterd.Stephen Waweru Mwaniki - Son

6. The proposed mode of distribution contained in the Supporting Affidavit dated 9th April 2014 and the Supplementary Affidavit dated 29th July 2029 both sworn by Mary Nyambura Mwaniki has been amended through another Supplementary Affidavit filed by Mary Nyambura Mwaniki sworn on 3rd December 2020 as follows:NAME NAME OF PROPERTY DISTRIBUTION OF HEIRS

1. Mary Nyambura Mwaniki2. Charles Kahiro Mwaniki Ngong/Ngong/6772 To vest unto the appointed administrators as trustees for Rhoda Wanja Mwaniki as tenant for life and thereafter unto Charles Kahiro Mwaniki and Mary Nyambura Mwaniki as tenants in common in equal shares.

1. Rhoda Wanja Mwaniki2. Mary Nyambura Mwaniki3. Charles Kahiro Mwaniki Ngong/Ngong/14002 The property to be sold and the proceeds to be shared as follows: 37. 5% of the sale proceeds to Rhoda Wanja Mwaniki; 37. 5% of sale proceeds to Mary Nyambura Mwaniki and 25% of sale proceeds to Charles Kahiro Mwaniki

1. Rhoda Wanja Mwaniki2. Mary Nyambura Mwaniki3. Charles Kahiro Mwaniki Gilgil/Gilgil Block1/5655 (Kekopey) The property to be sold and the proceeds to be shared equally between Rhoda Wanja Mwaniki, Mary Nyambura Mwaniki and Charles Kahiro Mwaniki.

7. The Summons for Confirmation is opposed through Affidavit of Protest filed by Rahab Wangui Mwaniki and Gilbert Maina Mwaniki who claim to be widow and son, respectively, of the deceased.

Affidavit of Protest 8. The claim of the Protestors is that the deceased was survived by the beneficiaries shown on paragraph five (5) of this Judgment and the two Protestors Rahab Wangui Mwaniki and Gilbert Maina Mwaniki who are widow and son, respectively of the deceased. Gilbert claims to have been educated by the deceased as his own son; that he attended the same primary school as his half brothers and sister named in paragraph five above at Ngong Hills Academy (now known as St. Joseph Catholic Primary School); that he attended High School where his parents/guardians were the deceased and the 2nd Protestor; that at the time of the deceased’s death, he was residing with his mother at Upper Matasia Plot No. 14002; that his mother was a contributor and a beneficiary of the estate of the deceased, in particular to all the properties situated in Ngong and that his mother resided in Ngong/Ngong/14002 where she built the matrimonial home with the deceased.

9. The Protestors have proposed that the estate of the deceased be shared as shown in their Affidavit in reply to the Supplementary Affidavit of Many Nyambura Mwaniki sworn on 30th September 2019 and filed on 1st October 2019. This mode of distribution is depicted in the table below:

Name of beneficiary Property Description of shares

Rhoda Wanja Mwaniki Ngong/Ngong/6772 Rhoad Mwaniki to have life interest over the land being her matrimonial home and after that the property to devolve to her 3 children, Stephen, Mary and Charles in equal shares.

Rhoda Wanja MwanikiRahab W. MwanikiCharles K. MwanikiMary N. MwanikiStephen MwanikiGilbert M. Mwaniki Gilgil/Gilgil/Block 1/5655 (Kekopey) To be sold and the proceeds shared to all beneficiaries in equal shares.

Rahab W. Mwaniki Ngong/Ngong/14002 House upon the land and 3 acres accruing to her as matrimonial property.

Gilbert M. MwanikiCharles K. MwanikiMary N. MwanikiStephen Mwaniki Ngong/Ngong/14002 3 acres to be shared amongst the beneficiaries equally.

Protestors’ Oral Evidence 10. Rahab Wangui Mwaniki testified that she is protesting to the Summons for Confirmation because she and her son were left out by the Administrators when they petitioned the court for a Grant. She testified that she started living with the deceased in Waithaka where they lived in a rental house for seven years; that she did not know that he was married; that they moved to Ngong, Upper Matasia, sometimes in 1998-1990 where they continued to live in a rental house; that they bought 6 acres of land (parcel No. 14002) and constructed a temporary house where they lived as they were constructing a 4 bedroom house; that she knew that the deceased was married when he started bringing his three children where she lived.

11. She further claimed that she developed the land where they were living with the deceased; that she was operating a business while the deceased worked as a civil servant; that she supervised the construction; that she proposes that the distribution be done equally between all the beneficiaries and that she retains the portion in parcel No. 14002 where she had lived with the deceased.

12. On cross-examination she told the court that the deceased had told her that he was married but that he was not living with his wife after living with him for four years. She could not remember the year when she married the deceased. She denied being related to the deceased or knowing his family. She told the court that she married the deceased under Kikuyu Customary Law and that he paid dowry for her in 1992. She stated that prior to 1992 she had been living with the deceased and that they formalized the marriage in 1992. She could not remember the month when marriage was formalized.

13. She further stated on cross examination that the deceased’s father and his family attended the marriage ceremony but his mother did not attend. She stated that she did not have documents to support her evidence that she contributed to developing parcel No. 14002; that this property was bought in 1988 and they moved into the property in 1990 when construction on the land started. She stated that she was recognized as widow of the deceased during his burial and that she attended funeral meetings. She admitted that she placed the obituary advertisement that contained her name as a widow and that the advertisement placed by the family of the deceased, her name was omitted.

14. She further stated under cross-examination that Gilbert was born in 1983 before she met the deceased and that by the time she met the deceased, Gilbert was about 3-4 years old; that he had been living with her parents in Othaya, Nyeri. She admitted that the deceased is not the biological father of Gilbert.

15. The Protestors called Harrison Mwangi Wanarua as a witness. He relied on his statement dated 7th February 2019. His evidence is that he knew the deceased, used to work with him and knew that the deceased had two wives; that in 1987, the deceased took him to his home in Ngong township where he was introduced to Rahab Wangui as deceased’s wife; that the deceased asked him to assist in him in identifying land to buy for his wife Rahab Wangui since the 1st wife had land of her own, which he did; that the deceased bought 6 acres of land where he put up a temporary structure for his wife Wambui.

16. On cross-examination, Harrison stated that the deceased bought the land in 1982 and paid Kshs 500,000 for the land.

17. The Protestors called Roseline Susan Wambui as their second witness. Roseline told the court that she was married to Gilbert and have one son called R.J.M, named after the deceased and a daughter called Z.W.M. She stated on cross-examination that by the time she started cohabiting with Gilbert and got married, the deceased was already dead and that Gilbert informed her that the deceased was his father.

18. Cecilia Waithera Maina testified as witness number three for the Protestors. Cecilia relied on her witness statement dated 26th November 2019 as her evidence. She told the court that Rahab was her daughter and that Rahab was married to the deceased. Her witness statement shows that Kahiro Irungu, father of the deceased, presented to her husband, Maina Mahianyu and other elders ‘mwati na harika’ which is a rite required under Kikuyu customary marriage; that he also presented ‘thenge ya jamba’ and therefore Kikuyu customary marriage was fully observed upon the presentation of these gifts.

19. Cecilia was cross-examined on her evidence. She stated that she did not know when the deceased and her daughter married and that dowry was paid in form of money and that she was present when Kshs 50,000 was conversion meant to represent goats. She said that the deceased and Rahab came back for Gilbert; that she was sure that Gilbert was son of the deceased and that she did not know why he was not named after deceased’s father.

20. The last witness to testify was Gilbert Maina Mwaniki. He told the court that he filed Protest because he and his mother Rahab Wangui had been left out of the estate. He said that the deceased was his father. That he was taken to meet the administrators and introduced to them.

21. Gilbert was cross-examined at length. He told the court that the birth certificate attached to his Affidavit sworn on 21st May 2010 did not have the name of the deceased as his father on it but has Gilbert Maina; that he applied for another birth certificate in 2008 because he wanted to replace his passport and that by this time, the deceased had died.

22. He further testified that the deceased was his biological father; that he was tested for DNA which was found not the same as that of the Stephen, Charles and Mary. He stated that his mother contributed to some properties in 1980s and another property in 1990s. He stated that at that time, he was about 4-5 years and relied on what his mother told him.

Administrator’s Oral Evidence 23. The Administrators called two witnesses to testify. Mary Nyambura Mwaniki relied on her affidavits dated 26th November 2009, 27th July 2011, 9th April 2014, 31st October 2014 and 29th July 2019. She testified that they are three children of the deceased and their mother: Charles Kahiro Mwaniki born on 7th December 1980, Mary Nyambura Mwaniki born on 10th November 1982 and Stephen Waweru Mwaniki born on 5th May 1988; that their birth certificates which are attached to her affidavit sworn on 26th November 2009 all contain the name of the deceased as their father; that she also attached a marriage certificate of her mother and father; that the Objector’s birth certificate attached to the affidavit sworn on 21st May 2010 does not have the name of the father.

24. She testified that Gilbert Maina is not their brother or that Gilbert used to be brought to visit them or them to visit Gilbert. She testified that both the deceased and their late brother Stephen Waweru Mwaniki are buried on parcel No. Ngong/Ngong/6772 where they have lived after moving from Waithaka. She testified that Court ordered all the children to undergo DNA testing whose results showed that Charles, Mary and Stephen shared DNA but not Gilbert and that the Protestors were not recognized during the burial of the deceased.

25. She further testified that there were two obituaries, the first one was placed by their uncle, Dr. Francis Njoroge on 2nd July 2005. It showed their mother as the widow and the three of them as children of the deceased. The second obituary is dated 4th July 2005. It was placed by Rahab and it names Rahab and her mother Rhoda as wives of the deceased; that the obituary by Rahab was not brought to the family or the committee organizing burial; that it was a surprise to the family because it clashed with the obituary placed by the family.

26. On cross-examination, Mary stated that the property in Upper Matasia adjacent to parcel No. 14002 has an incomplete house meant to be her late father’s retirement home. She testified that she challenged parcel No. 35448 in the Land Tribunal and that this property is not included in these proceedings for distribution; that this property was transferred to Gilbert after their father had died.

27. The second and last witness for the administrators is Stephen Irungu Kahiro brother to the deceased. He testified that the deceased was married to Rhoda Wanja and they had three children. He testified that Rahab Wangui is his second cousin and that it is not true that she was married to the deceased; that it is not true that dowry was paid; that if the deceased had gone to pay dowry, he would have been accompanied by his parents and brothers and that he did not recall paying dowry for Rahab.

28. On cross-examination, he stated that Gilbert Maina is not the deceased’s son.

Protestors’ Submissions 29. The Protestors filed their submissions dated 24th January 2024. They have raised and submitted on the following issues:Whether the deceased and Rahab Wangui were husband and wife for purposes of succession

30. Under this issue, it was submitted that Rahab Wangui was a wife of the deceased for the reasons that they cohabited as husband and wife from 1988 when they married under Kikuyu Customary Law to the time the deceased died in 2005; that during the said cohabitation, neighbour, Shukuru Ole Sayandot and his family, knew them as husband and wife; that the deceased referred to Rahab as his wife in a letter dated 27th June 1989 to the Directorate of Immigration; that Harrison Wanarua swore an affidavit dated 7th February 2019 that he was introduced by the deceased to Rahab as deceased’s wife; that the deceased swore an affidavit that Rahab was his wife; that Rahab testified to that fact and that Rahab’s mother testified that Rahab was married to the deceased and Kikuyu customary rites were performed.

31. The Protestors relied on Hortensia Wanjiku Yawe v The Public Trustee Nairobi [1976] eKLR and Mary Njoki v John Kinyanjui Mutheru & 3 others [1985] eKLR on the doctrine of presumption of marriage where that doctrine was reistated as follows:i.The onus of proving customary law marriage is generally on the party who claims it;ii.The standard of proof is the usual one for civil action, namely, ‘on a balance of probabilities’;iii.Evidence as to the formalities required for a customary law marriage must be proved to that standard;iv.Long cohabitation as a man and a wife gives rise to a presumption of marriage in favour of the party asserting it;v.Only cogent evidence to the contrary can rebut the presumption;vi.If specific ceremonies and rituals are not fully accomplished this does not invalidate such a marriage.

32. The Protestors also relied on Phylis Njoki Karanja & 2 others v Rosemary Mueni Karanja & another [2009] eKLR to support their submissions that Rahab Wangui was a wife to the deceased.Whether Gilbert Maina Mwaniki was a son of the deceased and a dependant of the deceased under the Law of Succession Act.

33. It was submitted that Gilbert is a son of the deceased; that the deceased took care of Gilbert throughout his childhood and provided him with food, shelter, clothing and education. It was submitted that Gilbert has sworn an affidavit that he lived with the deceased and his mother Rahab and attached supporting documents and that at the time of his death, the deceased was still maintaining Gilbert and that Gilbert has also named his son after the deceased. The Protestors urged this court to find that Gilbert is a dependant of the deceased and is entitled to a share of the estate.

Whether the Grant issued on 20th May 2008 should be revoked 34. The Protestors have cited the relevant provisions of the law and authorities, re Estate of Prisca Ong’ayo Nande (Deceased0 [2020] eKLR, Re Estate of Moses Wachira Kimotho )Deceased) [2009] eKLR to support their submissions that the grant ought to be revoked for reasons that the administrators left out of these succession proceedings the Protestors as beneficiaries of the estate of the deceased and for reasons that the proceedings to obtain the grant were defective in substance in omitting the two protestors.

Administrators’ Submissions 35. The administrators filed their submissions dated 9th May 2024. They have raised the following issues for determination:i.Whether there is an application on record for revocation of the grant of letters of administration.ii.Whether the 1st Objector was a wife to the deceased.iii.Whether the 2nd Objector was a dependant of the deceased and whether he is entitled to the property of the deceased.iv.Who are the rightful beneficiaries of the estate of the deceased.

36. On the first issue it was submitted that there are no summons for revocation on record. The administrators have given a detailed analysis of this matter from the time it was filed in Nairobi, its movement to Machakos High Court and finally to Kajiado High Court. They have captured the record of the court to the effect that the first Summons for Revocation of the Grant dated 16th October 2009 and that this application was withdrawn after parties entered a consent before the late Hon. Justice Jaden sitting in Machakos. They also submitted that the second application for revocation of the grant dated 18th January 2019 was filed in Kajiado High Court; however, this application was withdrawn following orders of Justice Mwita issued on 10th July 2019 (this date is quoted wrongly as 5th April 2019).

37. It is submitted that on both occasions when summons for revocation were withdrawn, the protestors were ably represented and that no application to reinstate the summons for revocation has been filed. It was submitted that there is no application for revocation of the grant before the court to warrant any orders being granted/or the grant being disturbed.

38. On the second issue, it was submitted that Rhoda Wanja was married to the deceased under the African Christian Marriage Act Cap 151 on 30th August 1980, which fact has not been disputed and that such a marriage is monogamous in nature and does not allow for any of the parties to contract another marriage during its pendency. It was submitted that for one to qualify to be a wife under section 3(5) of the Law of Succession Act, one has to prove that she was married through a type of system that allows polygamy for instance customary law; that Rahab must prove that she was married to the deceased under Kikuyu customary law.

39. Citing Eugen Cotran’s book “Casebook on Kenyan Customary Law”, the administrators cited the following essentials to a Kikuyu Customary Law marriage: capacity of both parties to marry, consent of both parties and their respective families to the marriage, slaughtering of ngurario ram, payment of rurario and commencement of cohabitation by the couple. They cited re Estate of Mbiyu Koinange (Deceased) [2021] eKLR, among others, to support the submissions that Rahab or her witnesses, did not demonstrate that Rahab and the deceased were married under Kikuyu Customary Law.

40. It was submitted that Rahab has not demonstrate any of the requirements for a valid Kikuyu Customary Law marriage as outlined un the Cotran’s book cited above, were met. On the alleged Statutory Declaration by the deceased and Rahab that Rahab was his wife, this cannot hold because the said affidavit is questionable due to discrepancies that the allegations that the deceased swore that affidavit is unsupported; that an affidavit is not part of the requirements considered under a valid Kikuyu Customary Law marriage; that even if the deceased swore an affidavit, which is disputed, it is not enough for him to say that he was married to Rahab without having satisfied the requirements of a valid Kikuyu customary law marriage; that having married under a system of law allowing a monogamous marriage, the deceased lacked capacity to marry another wife and that any other marriage can only arise after the life of the deceased subject to proof of such marriage.

41. On the third issue, it was submitted that the documents annexed to support the claim that the deceased supported Gilbert are questionable and cannot be relied upon; that the annexed student’s record and declaration form from Nairobi School do not have a date on when it was issued and or when the student attended the said school; that the place alleged to have been signed by the deceased is not clear whether the person was signing as a parent or a guardian; that the progressive report from Ngong Hills Academy allegedly signed by a parent has two different signatures and the middle signature seems to have been altered to read Kahiro; the report does not have name of the parents or guardian; that Gilberts birth certificate does not bear the name of the deceased as the father and that the DNA result which is not challenged also supports the evidence that Gilbert is not the biological son of the deceased.

42. It was submitted that under section 20 of the Law of Succession Act a step child must prove that he was being maintained by the deceased immediately prior to his death; that the 2nd Objector has not produced any evidence to show that he was being maintained by the deceased and therefore he has failed to prove dependency.

43. Under issue four (4) it was submitted that the only beneficiaries entitled to a share of the estate of the deceased are the Administrators for the reasons that the objectors have failed to prove that they are beneficiaries or dependants of the deceased.

Analysis and determination 44. I have read the file and the records contained therein. I have keenly considered the Summons for Confirmation of the Grant and the Affidavit of Protest and have noted the evidence of all the parties. In my considered view, the issues pending determination are the following:i.Whether there is a pending application for revocation of the grant issued in this succession cause.ii.Whether a Rahab Wangui was married to the deceased under Kikuyu Customary Law.iii.Whether Rahab Wangui and Gilbert Maina is a dependant of the deceased.iv.Who are the beneficiaries of the estate of the deceased.

Whether there is a pending application for revocation of the grant 45. I have read the entire file and I agree with the administrators that there is no pending application for revocation of the grant. The protestors are under a misconceived idea that there is an existing application for revocation of the grant. The record shows that the Protestors filed summons for revocation of grant dated 16th October 2009. On 11th March 2014, the parties appeared before the late Justice Jaden at Machakos and entered a consent which stated, inter alia, that ‘by consent the objectors/applicants hereby abandon their application for revocation of grant dated 16/10/2009….” This consent was adopted by the court as an order of the court.

46. As narrated by the administrators in their submissions, the Protestors filed another application seeking revocation of the grant. This application was also withdrawn through orders issued by Justice Mwita on 10th July 2019 when the Court issued orders, inter alia, “that the Summons for Revocation of Grant dated 18th January 2019 and filed on 22nd January 2019 be and is hereby withdrawn with no orders as to costs.”

47. The court directed parties to proceed with Summons for Confirmation and directed that any protestor was at liberty to file the Protest within 21 days after date of service. The protestors seem to have forgotten the history of this matter despite having been ably represented at all times and especially when the two applications for revocation of grant were dealt with. This issue is therefore moot.Whether a Rahab Wangui was married to the deceased under Kikuyu Customary Law

48. I have considered this issue, the many authorities cited by both parties as contained in their submissions and what is clear is that the deceased was married to Rhoda Wanja under the African Christian Marriage and Divorce Act (Cap. 15) as evidenced in the Marriage Certificate dated 30th August 1980 presented to court. The marriage between the deceased and Rhoda was a monogamous marriage and the deceased did not have capacity to contract another marriage.

49. But Rahab has come to this court asking it to find that she was married to the deceased through Kikuyu Customary Law and by long cohabitation. She has cited Mary Njoki v John Kinyanjui Mutheru & 3 others (1985) eKLR to support her submissions. In that case the court had this to say:“Cohabitation and repute do not always constitute a marriage. They can be a part of a mode of proving one in that they are substituted for some missing element or elements. One of the earliest put it this way: Cohabitation, with habit and repute, in the absence of countervailing proof to the contrary, establish a marriage on the ground that the cohabitation as husband and wife is proof that the parties have consented to contract that relationship.”

50. Nyarangi, JA, stated in the same case that:“In my judgment, before a presumption of marriage can arise, a party needs to establish long cohabitation and acts showing general repute. If a woman bears a child or better still, children, so that the man could not be heard to say that he is not the father of the children, that would be a factor very much in favour of presumption of marriage. Also, if say, the two acquired valuable property together and consequently had jointly to repay a loan over a long period of time, that would be just what a husband and wife do and so it would be unreasonable to regard the particular man and woman differently. performance of some ceremony of marriage would be strong evidence of general repute that the parties are married. To sum it, there has to be evidence that the long cohabitation is not close friendship between a man and woman, that she is not a concubine but that the cohabitation has crystallized into a marriage and that it is safe to presume that there is a marriage….”

51. The evidence of Rahab and her son Gilbert and her mother Cecilia Waithera Maina does not demonstrate that a Kikuyu Marriage existed between the deceased and Rahab. Kshs 50,000 is said to have been paid to Rahab’s father. This court was told that this was dowry (ruracio). There is no evidence that ngurario ram was slaughtered and it cannot be said that Kshs 50,000, in my view contributed to ruracio. On cross examination, Cecilia could not remember when her daughter got married the deceased.

52. The evidence of Harrison was that the deceased introduced him to Rahab as his wife; that he assisted the deceased to identify and buy land, parcel No. 14002 in 1982 and that the deceased put up a temporary structure on that land for Rahab. If this land was bought in 1982 as testified by Harrison, then it cannot be true as testified by Rahab that “we moved to Ngong in 1998 – 1990. We lived in a rental house in Ngong for one (1) year. We managed to buy a piece of land at Upper Matasia in 1990 and shifted to that plot after putting up a small house. This was parcel No. 14002….”

53. Both versions cannot be true, which means that one of them, Harrison or Rahab, was lying to the court. The person who sold that piece of land to the deceased was not a witness. It is therefore not correct to submit, as was done by the Protestors, that “the fact of cohabitation has throughout the pendency of this cause been confirmed by the neighbours, i.e Mr. Shikuru Ole Sayandot and his family who have all along known them to be husband and wife as they saw them purchase the property known as Ngong/Ngong/14002 and proceed to develop it.” There is no such evidence either before Justice Mwita or I.

54. In Estate of Joseph Irungu Gichiri (Deceased) [2020] eKLR, the court, in determining whether there was a customary marriage, relied on the Court of Appeal deceased in MNM V DNMK & 13 Others [2017] e KLR that:“To prove a valid Kikuyu customary marriage, E was obliged to adduce evidence showing on a balance of probabilities the essential rites and ceremonies, without which a Kikuyu customary marriage is not valid, were performed. On the essentials of a valid Kikuyu customary marriage, Dr. Eugen Cotran, in his seminal work Restatement of African Law: Kenya Volume1 The Law on Marriage and Divorce (supra) explains that no marriage is valid under Kikuyu law unless the ngurario ram is slaughtered and that there can be no valid marriage under Kikuyu law unless part of the ruracio has been paid. (See also Zipporah Wairimu v. Paul Muchemi, HCSCNO 1880 of 1970). These are the rites that E readily admitted were not performed on account of her father’s Christian background, and yet she was insisting that she was married under Kikuyu customs. Although she later on changed track and insisted that dowry was paid and ngurario performed, there is no credible evidence on record to prove that. It is inconceivable that the ngurario ceremony could be performed by a few people in a hurry, as she testified, on a day when the family was also involved in a funeral, and also in the absence of the deceased, who with E would have been the stars of the ceremony and responsible for cutting the lamb’s shoulder. It is also far fetched to claim, as she did, that a different person represented the deceased in such an important ceremony. As this Court observed in Eliud Maina Mwangi v. M Wanjiru Gachangi:‘Even if we allow room for evolution and development of customary law, it does not appear to us that ngurario under Kikuyu customary law has today transformed into a casual ceremony performed by a delegation of just two people.’”

55. There is no iota of evidence before me that these Kikuyu Customary Marriage rites and rituals were performed. These are ceremonies and rituals that involve both families of the groom and bride and are not a one-sided affair.

56. What about presumption of marriage? Halsbury’s Laws of England, 5th Edition 2015 defines presumption of marriage as follows:“Where a man and a woman have cohabited for such a length of time, in such circumstances, as to have acquired the reputation of being man and wife, a lawful marriage between them will be presumed even if there is no prior evidence of any marriage ceremony having taken place, particularly where the relevant facts have occurred outside the jurisdiction and this presumption can be rebutted only by strong and weighty evidence to the contrary.”

57. In MNK v POM; Initiative for Strategic Litigation in Africa (ISLA) (Amicus Curiae) (Petition 9 of 2021) [2023] KESC 2 (KLR) (Family) (27 January 2023) (Judgment), the Court of Appeal had this to say in respect of presumption of marriage:“36. The appellate court in this matter had determined that ‘the appellant was, by presumption married to the respondent.’ It is this determination that falls to us for examination. Presumption of marriage is a well-settled common law principle that long cohabitation of a man and woman with a general reputation as husband and wife raises a presumption that the parties have contracted marriage. However, a presumption of marriage is a rebuttable presumption and can disappear in the face of proof that no marriage existed” (emphasis added).

58. In the above case, the Court proceeded under to state as follows:64. We find it prudent at this juncture to lay out the strict parameters within which a presumption of marriage can be made:1. The parties must have lived together for a long period of time.2. The parties must have the legal right or capacity to marry.3. The parties must have intended to marry.4. There must be consent by both parties.5. The parties must have held themselves out to the outside world as being a married couple.6. The onus of proving the presumption is on the party who alleges it.7. The evidence to rebut the presumption has to be strong, distinct, satisfactory and conclusive.8. The standard of proof is on a balance of probabilities.65. The above notwithstanding, we are of the view, that the doctrine of presumption of marriage is on its deathbed of which reasoning is reinforced by the changes to the matrimonial laws in Kenya. As such, this presumption should only be used sparingly where there is cogent evidence to buttress it.”

59. The evidence adduced by Rahad, her mother Cecilia, and witness Harrison that Rahab was married to the deceased under Kikuyu customary law and that the marriage between the two should be presumed through long cohabitation has been rebutted by the evidence from the administrators. They have attached a certificate of marriage showing that the deceased was married to Rhoda under African Christian Marriage and Divorce Act. The deceased lacked capacity to marry another wife.

60. Evidence that they cohabited for long and were generally known as husband and wife does not meet the threshold set by the Court of Appeal above. The evidence of Harrison is not believable because he contradicted himself on the issue regarding when parcel number 14002 was bought and for what purpose. It is my finding, after considering the evidence tendered, that the Protestors have not proved marriage between the deceased and Rahab.Whether Rahab Wangui and Gilbert Maina is a dependant of the deceased.

61. To determine who a dependant is, I will go back to the provisions of section 29 of the Law of Succession Act. It provides as follows:29. Meaning of dependant 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, grandparents, 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.

62. Having found that Rahab was not married to the deceased for lack of proof, it follows that she cannot find solace under section 29 of the Law of Succession Act. She cannot claim to be a dependant of the deceased.

63. What about Gilbert? Without going to great lengths to analyze the evidence on this issue, it is clear to me that Gilbert is not a biological son of the deceased. Rahab, her own mother, confirmed this in her evidence. All that evidence from Cecilia and Gilbert himself that he is a son of the deceased is not to be believed. Gilbert has gone to great length to present himself as the son of the deceased including the name of the deceased in his birth certificate.

64. For Gilbert to qualify to be a dependant under section 29 above he has to prove that he is a stepson of the deceased or a child that the deceased had taken into his family as his own and that he was being maintained by the deceased immediately prior to his death. Gilbert testified that the deceased was maintaining him and catering for his education. The documents he attached to demonstrate that this was the case are questionable as far as this court can tell. They do not demonstrate that the deceased paid his school fees although he claims that this was the case. I did not see any receipt for school fees or any other school related expenses in the name of the deceased.

65. There is no other evidence in form of shopping receipts or even mpesa records to show that the deceased maintained Gilbert. It is not enough to state that one is a dependant of a deceased. One must present evidence to prove that claim. Evidence to this effect is lacking in this matter.

Who are the beneficiaries of the estate of the deceased 66. The above analysis leads me to the conclusion of this matter by finding, which I hereby do, that the beneficiaries of the estate of the deceased are Rhoda Wanja and her two children now that one of them, Stephen, is deceased.

67. In conclusion, I find in favour of the Summons for Confirmation. The Protest filed herein by Rahab and Gilbert and the mode of distribution of the estate proposed by the two in the Objector’s Reply to Supplementary Affidavit sworn by Rahab Wangui on 30th September 2029 is hereby dismissed. The Summons for Confirmation dated 9th April 2014 and the mode of distribution proposed by the administrators in the Supplementary Affidavit sworn on 3rd December 2020 and filed on 22nd December 2020 is hereby allowed.

68. Consequently, the Grant of Letters of Administration issued on 20th May 2008 is hereby confirmed. The estate of the deceased shall be distributed to the beneficiaries, Rhoda Wanja Mwaniki, Charles Kahiro Mwaniki and Mary Nyambura Mwaniki as proposed in the table under paragraph 6 of this judgment. Orders shall issue accordingly.

DATED, SIGNED AND DELIVERED THIS 19TH SEPTEMBER 2024S. N. MUTUKUJUDGEIn the presence of:Mr. Kimeru for Objectors/ProtestorsMrs Ndirangu for Administrators