[2004] KEHC 1246 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAKURU SUCCESSION CAUSE NO. 282 OF 2001

IN THE MATTER OF THE ESTATE OF RYDON EZEKIA AMOYO ODILI (DECEASED)

INVIOLATAH OCHOKA………………...………...OBJECTOR

VERSUS

FLORENCE A. OGUTU………………………1ST PETITIONER

HELLEN A. ODILI………………………...…2ND PETITIONER

JUDGMENT

The Petitioners in this cause, Florence Akinyi Ogutu and Hellen Amunga Odili petitioned this Court to be made the administrators of the estate of Rydon Ezekia Amoyo Odili who died on the 21st of August 2000. The Petitioners stated that they were applying to be made administrators of the estate of Rydon Ezekia Amoyo Odili (hereinafter referred to as the deceased ) as widow and mother of the deceased respectively. The Petitioners listed the beneficiaries of the deceased estate as Florence Akinyi Ogutu, the widow, B.O.O. and A.A.O, the minor daughters of the deceased. When the Notice of the Petition was published in the Kenya Gazette, the Objector herein, Inviolatah Ochoka filed her objection to the letters of administration being issued to the Petitioners. The Objector claimed that she was also a widow of the deceased and was therefore entitled to be considered as a dependant of the deceased estate. The Objector claimed that her marriage with the deceased had been blessed with one child, namely B.O.A, a son, who was still a minor. Directions were taken and the parties to the objection proceedings agreed that viva voce evidence was to be taken to establish whether or not the Objector and her son were the dependants of the deceased and therefore entitled to benefit from his estate.

At the hearing of the objection, the Objector Inviolatah Ochoka testified that the deceased was her husband. She stated that she knew the deceased from 1994 and they were officially married on the 3rd of July 1995. The Objector testified that at the time she used to work at Subukia with the Ministry of Agriculture and the deceased was working as a Librarian at the Laikipia Campus of Egerton University. The Objector testified that after she had met and fell in love with the deceased, the deceased visited her rural home in her company and met with her father, brother and grandmother. The Objector testified that the deceased took her to see his parents who were residing at Egerton University, Njoro. The two set of parents later met and consummated the marriage under the customary law. It was the Objector’s testimony that she was married to the deceased under customary law on the 3rd of July 1995. Later the Objector, the deceased and their child born on the 29th of December 1997 went to the rural home of the deceased at Kisa in Kakamega District. It was the Objector’s testimony that the mother of the deceased and her neighbours at the rural home welcomed her. An affidavit was later sworn by the two to signify that they were married. The affidavit was produced as Objector’s Exhibit No. 1. The birth certificate of the child called Bonventure Oyego Amoyo was produced as the Objector’s Exhibit No. 2.

The Objector testified that she was transferred from Subukia and came to reside in Nakuru at the District Commissioner’s Quarters. She testified that the deceased lived with her at the said quarters and provided for her needs and the needs of their child. The Objector further testified that their child was prayed for and blessed on at the Church of God, Kaloleni “C”. The card certifying the blessing was produced as the Objector’s Exhibit No. 3. At the time of the death of the deceased, the Objector testified that the body of the deceased was brought to her house from the house of the 1st Petitioner and later transported to their rural home in Kisa where the body was buried. She stated that she participated in the burial of the deceased. She further testified that although she initially did not know that the deceased had another wife, when she learnt of it, she accepted it. She was introduced to the 1st Petitioner by the deceased as his 1st wife. She accepted that she was the 2nd wife. The Objector further testified that she was surprised when the Petitioners applied for letters of administration without mentioning her and the child of the deceased as beneficiaries to the deceased estate. After discovering that she had been excluded, the Objector obtained a letter from the chief, Kisa location, Kakamega District stating that she was the wife to the deceased. The letter of the Chief was produced as the Objector’s Exhibit No. 4. A letter was procured from the Registrar, Egerton University where the deceased used to work, which letter confirmed that the son of the Objector was the son of the deceased.The Objector testified that when she was introduced to the 1st Petitioner by the deceased, the 1st Petitioner was not happy but accepted her. The Objector was not happy that the Petitioners had excluded her and her child as the beneficiaries to the deceased estate. The Objector testified that before the death of the deceased, she used to visit the 1st Petitioner while the 1st Petitioner in turn used to visit her. It was her testimony that both of them were wives to the deceased.

The Objector called Rydon Adera Atsyulu (hereinafter referred to as Rydon ) to give evidence on her behalf. Rydon testified that he knew the deceased as the husband of the Objector since 1996 when the two started residing at the District Commissioner’s Quarters Nakuru. Rydon testified that when the deceased died he assisted with the funeral arrangements and also attended the funeral at the rural home of the deceased. It was his testimony that at the funeral, the Objector was recognised as one of the two wives of the deceased. He further testified that he was not aware that the deceased had two wives but only learnt of this fact during the funeral.

The 2nd Petitioner, Hellen Amunga Odili testified that she was the mother of the deceased. The 2nd Petitioner testified that the deceased according to her knowledge had only one wife, the 1st Petitioner, Florence Ogutu Amoyo whom he married in December 1994. The 2nd Petitioner further testified that the deceased was blessed with two children with the 1st Petitioner, namely Beverlyn and Alvina. It was the 2nd Petitioner’s further testimony that the deceased told her that he had a girl friend who had borne him a son out of wedlock. The 2nd Petitioner testified that the deceased wanted to bring the child home so that the 2nd Petitioner could shave his head as required by custom. It was the 2nd Petitioner’s testimony that the shaving of the child’s head signified that the child was recognised as the deceased’s child. The 2nd Petitioner testified that when she asked the deceased if he was going to marry his girlfriend (the Objector ), he answered in the negative.

The 2nd Petitioner testified that the Objector came with the child and she shaved the head of the child. It was the 2nd Petitioner’s testimony that the deceased always recognised and acknowledged the fact that he had three children – two with his wife and one out of wedlock. According to the custom of the deceased’s community, when the deceased died, a house had to be erected for the son of the deceased before he could be buried. The 2nd Petitioner testified that the Objector was duly summoned to attend the funeral and bring the child to the rural home of the deceased.The head of the Objector’s son was shaved again at the funeral. The 2nd Petitioner further testified that their community’s custom recognised the child of the Objector and not the mother. It was the 2nd Petitioner’s testimony that the deceased wrote his next of kin at the Egerton University as the 1st Petitioner and the three children. The letter of the University was produced as the Petitioners Exhibit No. 1.

The 2nd Petitioner was certain that the Objector was the deceased’s girlfriend and not his wife. According to her, the deceased had only one wife, the 1st Petitioner. The 2nd Petitioner confirmed that she knew the Objector and her child when she performed the shaving ceremony in the presence of the deceased, his father and the Objector. The 2nd Petitioner testified that the name of the Objector’s child was not included in the Petition but she did not object to the Objector’s son being included as the beneficiary of the deceased’s estate. The 2nd Petitioner admitted that the house which was built at the deceased’s rural home belonged to the Objector’s child and the said child was at liberty to go and live there with the 2nd Petitioner. The 2nd Petitioner did not oppose to the Objector residing in the said house with her son.

The 1st Petitioner, Florence Akinyi Ogutu testified that she was a teacher by profession teaching at Pangani Primary School. The 1st Petitioner testified that she knew the deceased in 1985 when they were still in school. Their love blossomed until 1994 when they got married under the Luhya customary law. The 1st Petitioner testified that they were blessed with three children but one of them died in 1995. The 1st Petitioner produced an affidavit dated the 29th July 1994 as Petitioner’s Exhibit No. 2 to signify that she was married to the deceased. The 1st Petitioner was issued with the death certificate which was produced as Petitioner’s Exhibit No. 3. It was the 1st Petitioner’s testimony that the deceased never mentioned that he was married to the Objector although the 1st Petitioner knew that the Objector had given birth to the deceased’s child, a child whom the deceased acknowledged to be his. The 1st Petitioner testified that she recognised the child as the dependant of the deceased’s estate but not the Objector. The 1st Petitioner testified that the deceased told her that he was not married to the Objector and she took this statement to be factual.

The 1st Petitioner testified that the Court should follow the wishes of the deceased by including the child of the Objector as a beneficiary to the deceased’s estate and excluding the Objector. The 1st Petitioner admitted that the deceased’s body was taken to the Objector’s house at Nakuru against her wishes. The 1st Petitioner acknowledged that the house built at the deceased’s rural home belonged to the son of the Objector. The 1st Petitioner did not Object to the son of the Objector being included as the beneficiary to the deceased’s estate.

The issue for determination by this Court is whether the Objector has proved that she indeed was married to the deceased and therefore established that she is a dependant of the deceased’s estate. According to the Objector, Inviolatah Ochoka, she met and fell in love with the deceased when she was working with the Ministry of Agriculture at Subukia. The deceased was then working as a Librarian at Egerton University, Laikipia Campus. Their love blossomed. They started living together at Subukia. The Objector testified that at the time she thought that the deceased was single. The deceased then visited the Objector’s rural home where he was introduced to the Objector’s father, brother and grandmother. The Objector was taken by the deceased to visit her parents at Egerton University. The Objector and the deceased were later married under the Luhya customary law. An affidavit was sworn by both the deceased and the Objector signifying that they were married under the Luhya customary law on the 3rd of July 1995 at Kisa, Khwisero, Kakamega District.

No evidence was however put before this Court to establish what customary marriage ceremony was conducted to validate the said marriage. There is no evidence that dowry, a prerequisite of any customary marriage was ever paid. The Objector states that no dowry was paid. After evaluating the evidence this Court is of the view that no customary marriage actually took place. What happened is that the deceased and the Objector lived together in an arrangement commonly known in Kenya as “come we stay ” and which after they had lived together for a while, became a common law marriage. PW 2 Rydon Adera Atsyulu a neighbour to the Objector testified that he knew the deceased and the Objector as husband and wife as the two used to live together. This Court finds that the Objector has proved that she was the common law wife of the deceased and therefore she has proved that she is a dependant of the deceased estate.The fact that the Objector was taken to be the wife of the deceased was corroborated by the evidence ofDW1 (the 2nd Petitioner ) Hellen Amunga Odili, the mother of the deceased.

Although she testified that the Objector was the girlfriend of the deceased, she stated that the deceased introduced the Objector and her son to his parents. A ceremony was performed whereby, as required by the Luhya tradition, the mother of the deceased shaved the head of the infant son of the Objector. DW1 was of the view that since the deceased had indicated that he had a son out of wedlock, as the mother of the deceased she had to recognise and accept her grandson. She was however adamant that the Objector was not the wife of the deceased. This Court found it very strange that DW1, the mother of the deceased, was willing to embrace the son of the Objector with both hands while on the other hand rejecting his mother, the Objector. The 1st Petitioner, Florence Akinyi Ogutu testified that she was likewise married in a similar manner that the Objector was married. Her marriage with the deceased was said to have been under the Luhya customary law. No evidence was adduced to establish that dowry had been paid as required under the Luhya customary law.The marriage between the 1st Petitioner and the deceased was therefore a “come we stay” arrangement which became formalised when the two started living together as husband and wife. The marriage between the 1st Petitioner and the deceased was therefore a common law marriage. In the circumstances of this cause, an in view of the above findings, I do find that the deceased married both the 1st Petitioner and the Objector. The two are therefore his wives for the purposes of Succession.

The Objector and the Petitioners all agree that the three children of the deceased, namely B.O.O. A.A.O. and B.O.A, are the dependants of the deceased estate. This Court has noted that the three children of the deceased are all children of young and tender years. This Court has further observed that both the Objector and the 1st Petitioner are permanently employed. The deceased’s only asset is the death benefits that is due to the deceased estate from the deceased’s employer, Egerton University. The other asset of the deceased is the cash that was left in his Bank Account No. 304- 070-033. After evaluating the evidence of record, this Court is of the opinion that the said Death Benefits and any amount that may be due to the deceased’s estate shall be deposited in a interest earning account in the names of the Objector and the 1st Petitioner (the wives of the deceased ). The said amount shall solely be applied for the Education of the children of the deceased. The Objector and the 1st Petitioner shall not utilise the said fund for their personal use, but as directed by the Court in this Judgment.

In conclusion, the findings of this Court are summarised as hereunder:

(i) The Objector and the 1 st Petitioner shall be t he administrators of the deceased estate.

(ii) All the funds due to the deceased’s estate from the deceased’s death benefits and other dues shall be deposited in an interest earning account to be managed by the Objector and 1 st Petitioner jointly for the purpo ses of securing the Education and upkeep of the three children of the deceased. In any event, the said amount shall be utilized equally between the three children of the deceased.

(iii) The Objector and the 1 st Petitioner, being gainfully employed, shall not b enefit from the deceased’s estate.

(iv) There shall be no orders as to costs.

DATED at NAKURU this 4th day of November 2004.

L. KIMARU

AG. JUDGE