[1999] KEHC 27 (KLR)

REPUBLIC OF KENYA

IN THEHIGH COURT OF KENYA

AT NAIROBI (NAIROBI LAW COURTS)

Succession Cause 2411 of 1995

IN THE MATTER OF THE ESTATE OF JOHNSON KAMAU KOMO (DECEASED)

JANE MBERE KOMU............................................... Ist APPLICANT

ELIJAH KARIUKI KOMU....................................... 2nd APPLICANT

CAROLINE WANJIKU KOMU................................ 3rd APPLICANT

MARY WANJIKU KOMU....................................... 4TH APPLICANT

VERSUS

LEAH NGENDO KOMU.................................... 1ST RESPONDENT

OBADIA THIONGO NGWIRI........................... 2iND RESPONDENT

RULING

The applicants pray for an order that reasonable provisions be madefor them under S. 26 of the Law of Succession Act from the estate of thedeceased. The Respondents are the executors of the will of the deceaseddated 22. 11. 94.

The Respondents has filed a petition for Grant of probate of the will.The first Respondent is a widow of the deceased. The first applicant is themother of the 2nd 3rd and 4th applicants. The first applicant claims that sheis also a widow of the deceased and that the 2nd 3rd and 4th applicants are thechildren of the deceased. The first Respondent disputes this. As a resultOral evidence has been received to determine the status of the applicants inrelation to the deceased.

The first applicant testified, inter alia, that:

(a) She met deceased in 1981 who married her under Kikuyu customary law.

(b) That in December 1981 deceased with elders visited her parents toreport that he had married her and gave her parents shs 2000/= on thatoccasion.

(c) That thereafter she lived with deceased as husband and wife at variousconstruction sites and from 1984 in the deceased house at Sabugo inNyandarua

(d) Thai they got three children - Caroline Wanjiku Komu born on26. 9.97 but she admits that deceased is not the biological father of thechild; Elijah Kariuki Komu born on 1. 8.87 and Mary Wanjeri Komuon 1. 7.90(e) That in 1986 deceased visited her mother and paid shs 4000/- asdowry and that deceased also built a semi permanent house for hermother as part of the dowry.

(f) That she was described in the eulogy at the burial of deceased assecond wife of deceased and that she was received as wife of thedeceased at the funeral.

(g) Deceased used to pay school fees for three children.

JANE MBERE KOMU called four witnesses viz: Joseph karanjaKariuki (PW2) - younger brother of the deceased; Edward Chege kariuki(PW3) - brother of deceased, John Njuki Kariuki (PW4) deceased brotherand Bilha Wanjiku Kariuki (PW4) - deceased brother and Bilha WanjikuMungai (PW5) her mother.

Leah Ngendo Komu (DW3) called three witness viz Wanjeri kariuki(DW1) - mother of the deceased; Isaack Komu (DW2) cousin of deceasedand Obadiah Thiongo Ngwiri (DW4) an advocate of the High Court ofKenya and one of the executors of the will of the deceased. Deceased's willand a friend.

The case of Leah Ngendo Komu is that Jane Mbeere Komu was not a wife of the deceased but only an employee.

I have considered the evidence from both sides. Two of thebrothers of the deceased, which is Joseph Karanja. Kariuki (PW2) andEdward Chege (PW3) gave evidence that Jane Mbeere Komu was a.wife of the deceased. But John Njuku Kariuki (PW4) - a brother ofthe deceased and wanjeri kariuki (DW) a mother of the deceased gaveevidence that June Mbeere Komu was not a wife of the deceased. So, it is clear that the family of the deceased is split in the middle on theissue. The essentials of a valid Kikuyu customary marriage are statedin chapter 2page 30of contran’s CASEBOOK ON KENYA CUSTOMARY LAW. They are considered more comprehensively inthe case of ZEPORAH WAIRIMU VERSUS PAUL MUCHEMI -Nairobi HCC NO. 1280 of 1970 reported at page 52 of the same casebook. According to that decision the first step after the women hasagreed to Many the man is "Njohi ya Njurio" followed by payment of"Mwati and "HARIKA" Further, according to that decision "Mwati"and "Harika" and drinking of beer constitute a valid Kikuyu marriageand dowry is paid after "Mwati" and "Harika". "Nguraario" whichgives final sanction of the validity of the marriage can beperformed later.

I am aware that these ceremonies are not strictly observednowadays and that money can be paid as substitute for" Njohi yaNjurio, Mwati and Harika;" dowry even "Ngurario". The relation ofJane Mbeere and the deceased has to be considered in the light of theabove practices.

Now, Jane Mbeere Komu says that she met deceased in 1981and they got married and that thereafter in December 1981 deceasedwith elders visited her parents to report that the two were married anddeceased paid shs 2000/= There is no evidence of customary marriageor semblance of it before December 1981 .

As for payment of first dowry installment of dowry of shs2000/= Edward Chege Kariuki (PW3) says he was present.According to PW3 deceased gave mother of Jane mbeere shs 2000and told her to buy sugar. In his evidence in cross examination, PW3testified that they had not arranged to visit mother of Jane Mbeere andthat they passed by on their way to Nakuru when deceased said that hewould show them the home of Jane Mbeere.

Bilha Wanjiku Mungai (DW5) testified that, although she was paidshs 2000/= there has not been any ceremony to discuss dowry. The father of Jane Mbeere was not even present.

On the second occasion when shs 4000/- was paid to PW5there were no deliberations and father of Jane was not present. This isaccording to the evidence of Jane Mbeere. It is only Jane Mbeere andher mother who says that shs 4000/= was paid as dowry. It is theevidence of PW5 that if dowry was to be paid deceased would havepaid 80 goats. Jane Mbeere refers in her evidence in cross-examination to another occasion in 1993 when deceased, herself andher children visited her mother and a goat was slaughtered. Accordingto her evidence, deceased was not accompanied by anybody else onthat occasion.

It appears from the evidence that there was no family gatheringto discuss marriage or solemnize any marriage and that the visits bythe deceased to Jane Mbeere's mother were merely casual. It isimprobable that dowry could be paid in the absence of Jane Mbeere'sfather and family eiders. It appears further that if any money wasgiven to Jane Mbeere's mother by the deceased it was merely a gift.The money was not attributed to either “Njohi yaNjurio" "Mwati'and "Harika" or to any other customary ceremony.

On the issue of cohabitation Jane Mbere testified that she lived with deceased in Thika from 1981 to 1982 and in Kangema from 1982 to 1984. Thereafter she lived with deceased in a Sabugo in housedeceased had constructed in his farm from 1984 until May 1995 whendeceased died.

But the evidence shows that deceased was doing roadconstruction as well as running businesses in Nairobi and that he hadconstructions sites in Thika and Kangema. Where Jane Mbeere andand deceased employees at the construction sites were living. It isadmitted by Jane mbeere that deceased was in Nairobi most of thetimes running three hotels, a hard ware shop and other businesses.Joseph Karanja Kariuki (PW2) confirms that deceased was spendinghalf of his time in Nairobi and used to be in Nairobi most of theweekends There is also the evidence of Isacks Komu (Dw2) who wasemployed by deceased as a supervisor. His evidence show amongother things that:-

(i) Deceased used to put up prefabricated houses at construction sites and workers would share rooms.

(ii) Jane Mbeere was employed by deceased and used to receive salary like other workers.

(iii)Deceased used to visit construction sites and then return to Nairobi and that deceased never used to sleep in same place as workers.

(iv) At the construction sites, Jane Mbeere never used to live with her children and her children were living with their grandmother in Kanyariri.

The employment records from March 1981 to may 1983 were produced in court They show that Jane Mbeere was in the. payroll for those years and that she was using the name of Jane Mungai. Leah NgendoKomu produced a letter dated 28. 11. 85 written to Jane Mbeere Mungai by the deceased. I reproduce the letter herebelow

'Miss Jane Mbeere Mungai

C/O KGT Limited

P .O BOX 75711 1

NAIROBI

Dear Madam

It is the intention of the Company to select a few people from the existing stall and train them on various courses or own them job training on the work they do. You are requested to complete the attached form and return to undersigned not later than 2nd December 1985. Please attach the Photostat copies of your certificate,

Yours faithfully

J.K. KOMU

managing director

The documents that she attached were also produced. Jane Mbeere admitted that she was receiving salary but stated that deceased used to pay his wives and children salaries. Three petty cash vouchers were alsoproduced showing that even in 1986 Jane was receiving monthly salary.Sheadmitted writing some of the petty cash vouchers.

As for the house in Sabugo Nyandarua.. Jane Mbeere testified that itwas built for her and that she used to live in the house with anotheremployee Wanja. She testified that other employees were living at the labour camp that evidence was supported by pw.3 Leah Ngendo Komu however disputes that She states that Jane Mbeere had a room in the house and thatthe house had a section for workers. According to her three other employees Komu Kariuki and Wanja were living in the house. There is evidence from pw2 that deceased used to spend half of his time in the farm and half of the time in Nairobi.

Deceased refers to Leah 'Ngendo Komu in his will dated 22. 11. 94 ashis wife. In the same will he has bequeathed L.R, No. Dagoretti/Kinoo/T.31to Jane mbeere Mungai without referring to her as his wife.

The evidence also shows that there was very little association betweenthe family of the deceased and the family of Jane Mbeere Komu. Theevidence also shows that there was no association between Jane mbeereKomu and Leah Ngendo Komu. it is clear that Jane Mbeere was living atthe construction sites with other workers and that eventually she was livingwith other workers in Sabugo farm. Jane Mbeere was not living with herchildren at the construction sites or in the Sabugo farm. The evidence showsthat deceased used to visit the construction sites and later Sabugo farmoccasionally. It is also evident that deceased used to pay Jane Mbeeremonthly salary like all other employees. Even in his solemn will lie referredto her by her maiden name and never declared that she was his wife, ft isimprobable that deceased would sleep in the prefabricated houses atconstruction sites where his other employees used to sleep when he wasbusy in Nairobi and when construction sites were not far from Nairobi. Theofficial letter dated 28. 11. 85 and failure by deceased to refer to Jane mbeerein his will as his wife is further evidence that the two did not cohabitate ashusband and wife.

I A Her strongest evidence is that she had two children with the deceasedand that she was named in the eulogy as wife of deceased and accorded the status of a wife at the funeral.

Jane Mbeere readily accepts that deceased is not the biological fatherof her first child Caroline Wanjiku Komu but says that deceased was paying her School fees.she States that deceased is the father of Elijah Kariuki Komu born on 12. 8.87 and Mary Wanjeri Komu born on 1. 7.90 and thatdeceased was paying their school fees. She produced the certificates of birth of last two children show name of JOHNSON kamau komu as the father of each child. Those certificates were given on 29. 11. 93 long before John Kamau Komu died in may 1995 they show on the body at the bottomthey are evidence of the dates and facts contained there in without any or other proof of the entry vElijah Kariuki is apparently named after kariuki- the father of deceased while Mary Wanjeri Komu is named after Wanjeri the mother ofthe deceased. Deceased in his will has given Kiungururia farm to Jane Mbeere in trust for Elijah Kariuki which indicates that deceased recognised him as his son. Jane Mbeere testified that deceased was educating the three children. She produced a bundle of receipts in respect of each child.

Caroline Wanjiku was in form 1 in 1995 ,she must have by now finished form IV although Jane Mbeere on 8th May 1996 told court that she was at home for lack of school fees. Elijah kariuki was in boarding school Nyahururu Elite Junior. The receipts show that the school fees was high.

Jane Mbeere informed court on 8th may 1996 that Elijah Kariuki had not gone to school because of lack of school fees Leah Ngendo informed court in July 1996 that Elijah Kariuki and Mary Wanjeri were in may,1996 transferred to Akiba preparatory school where fees is lower. Petty cash Vouchers show that Jane mbeere was earning a monthly salary of shs 2,220/= in 1986. It is unlikely that she was earning much higher from 1992 to 1995 to be able to pay school fees for the three children.

As for Mary Wanjeri Komu Jane mbeere testified that it is thedeceased who made an application for admission of Mary Njeri Komu toCedar Groove Nursery school. She produce an application dated 11. 5.92 singed by the deceased .The signature on that form is similar to the signature on the letter dated 28. 11. 85 produced by Leah. Ngendo asevidence that Jane Mbeere was an employee. Two receipts dated 14. 2.95 show Johnson Komu as the person who paid school fees for Mary Wanjeri

The fact that Jane Mbeere had to transfer two of the children to a less costly school after the death of Johnson Komu supports her evidence that deceased was paying school fees for the three children. Her evidence is further supported by the evidence of Edward Chege Kariuki (PW3) thatdeceased was paying school fees for the three children.

The paternity of Elijah Kariuki Komu and Mary Wanjeri Komu is notseriously disputed though Leah Ngendo testified that deceased had not shown any of the three children as his own children.

The fact that deceased was paying school fees for the three children:

not also seriously disputed as all what Leah Ngendo could say is that she does not know if deceased was paying school fees for the three children

Although Most of the receipts are not in the name of the deceased. Jane Mbeere testified that deceased used to either pay the school fees directly orgive her money to pay I am satisfied that Elijah Kariuki Komu and Mary Wanjeri Komu arethe children of the deceased and that deceased was paying their school fees and also school fees for Caroline Wanjiku But other than paying school fees for Caroline Wanjiku Komu there is no evidence that deceased recognisedher as his own child or that he voluntarily assumed permanent responsibilityover her (see definition of a child in S. 3 (2) of the Law of succession Act).

The fact that deceased had two children with Jane Mbeere does not initself prove any marriage, Further, the fact that Jane Mbeere was named in the eulogy as wife of the deceased and participated in the funeral as wife of the deceased does not also prove any marriage if there was no marriagesubsisting before the death. In any case, she was omitted in the newspaperand radio Death and Funeral Announcement both of which have a widercirculation than a private eulogy. The printed eulogy is discredited by thefact that it shows year of the marriage as 1986 while Jane Mbeere says that she was married in 1981.

The inclusion of Jane Mbeere in the eulogy as wife of the deceasedand the honour accorded to her at the funeral could be evidence of reputation of marriage if Jane Mbeere was asking court: to presume marriage from longcohabitation and reputation. But that is not her case and in any case I havealready found that she did not cohabitate with deceased as husband and wife.I conclude from the evidence that Jane Mbeere was not married to the deceased under Kikuyu customary law and that though they begot two children their relationship was that of both an employee and a mistress.She is therefore not a dependant as defined in S. 29(a) of the law ofsuccession Act. For reasons I have already stated. Caroline Wanjiku Komu 3rd applicant is not also a dependant of the deceased as she is not a child of the deceased as defined in S. 3(2) of the law of succession Act.

But in respect of Elijah Kariuki Komu, 2nd applicant he is a son of the deceased although he was born out of wedlock. Deceased had named him after his (deceased) father in accordance with the custom. Deceased wasalso educating him and made a. provision for him in his will. Thosecircumstances show that deceased had both recognised him as his own childand also had voluntarily assumed permanent responsibilities over him. Thesame applies to Mary Wanjeri Komu, 4th applicant. Deceased was her fatherHe had named her after his mother in accordance with the custom and hewas educating her. He had thus recognised her as his own child and had alsovoluntarily assumed permanent responsibility over her. She -was notprovided for in the will and she is entitled to a provision from the estate.

Deceased bequeathed Kuinguguria farm Nakuru to Jane Mbere in trustfor Elijah Kariuki. Although Leah Ngendo informed the court that the landis 14 acres its value is not known. We do not know if the land exists or notas the title deed was not produced .The executors show in the petition that theestimated value of the estate is Shs. 944,892/35.

The applicants however show the estimated value of the estate as Shs. 157,000,000. The estate comprises of Lands and Commercial buildings.

There is one valuable share belonging to the estate in Kinoo General Traders Ltd. A consent order was made on 5. 12. 95 that Counsels agree on the valueof the estate for purposes of the application and that in case of the failure toagree on the net value of the estate applicants be at liberty to engage a valuer

Again on 14. 12. 95, a consent order was made that the advocates do agree onthe net value of the estate. The advocates did not inform the court of theresult before the application was prosecuted. From the consent orderrecorded on 29. 4,96, it is clear that what parties wanted the court todetermine, first, is the whether or not first applicant is a wife of the deceased and whether or not the 2nd 3rd and 4th applicants are the children of the deceased. Depending on the result, the next issue to be decided is what provision should be made.

Although the estate has not been valued ,it apparent from the nature or the assets that the estate is substantial am not satisfied that deceased made he assets that the estate is substantial. I am not satisfied that deceased made a reasonable provision for Elijah Kariuki Komu. I order that a reasonable provision be made for him from the estate. As so provision was made for Mary Wanjeri Komu, I order that the reasonable provision be made for her in the estate, in the circumstances I have explained above it is just to give parties achance to discuss what reasonable provision should be made from the estate for Elijah Kariuki Komu and Mary Wanjeri Komu and see if a settlement can be reached.

It is also just that in case of disagreement the court should give the parties a further chance to be heard and bring before the court all the relevant facts. The costs of the application should be reserved until the final orders of the court, I so order,

E.M. Githinji

JUDGE

26 .2. 99

Mr. Njoroge holding brief for Mr. Kiome present

Mr. Njenga for executors present

Mr. Njenga

Alter the Ruling is typed I will discuss the issue of reasonable provision with the executors to see whether an agreement can be reached. Give me one month.

Order By Consent

1. Mention on 19. 4.99

2. In case of disagreement on what reasonable provision should be made for the two children, both parties to file additional affidavits.