[2013] KEHC 1920 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

SUCCESSION CAUSE NO. 2432 OF 2009

IN THE MATTER OF THE ESTATE OF THOMAS MONG’ARE MONG’ARE DECEASED

MARY GESARE OSORO…...........…….APPLICANT

VERSUS

EVERLYNE CHESOMEK KIPTOT.....RESPONDENT

RULING

The applicant has come to court by her application dated 30th July 2010 seeking that the court do make reasonable provision for her and her children out of the estate of the deceased.

The application is premised on section 26 of the Law of Succession Act. This provision provides a remedy to persons who are close members of the family of the deceased, but who have not been adequately provided for in his will or on intestacy. Such persons are defined in section 29 of the Act and they invite the court to find that they were dependent on the deceased during his lifetime, but following his death the dependency has been lost, and the court should intervene and provide for them.

The clusters of persons who benefit from section 26 are set out in section 29 of the Act. The first cluster is that of the widows and children of the deceased, basically members of the nucleus family, whether or not he maintained them during his lifetime. The second cluster lists members of the extended family, that is to say parents, grandparents, grandchildren, stepchildren, children that he had assumed responsibility over, siblings and half-siblings, so long as he was maintaining them during his lifetime. The third cluster is the widower of the deceased, who has to prove dependency.

This cause relates to the estate of Thomas Mong’are Mong’are, who died on 8th October 2004. The applicant alleges that she is a widow of the deceased, the two of them having contracted a customary marriage in 1988. They were blessed with two children. There was separation, following which the deceased married another woman called Everlyne Chesomek Kiptot, the respondent herein. After the demise of the deceased, the respondent moved to court and filed this cause without involving the applicant, and excluded her and her children. It is this exclusion that prompted the current application.

The applicant has to establish only two facts to bring her and her children within the realm of section 26 of the Law of Succession Act. One, that she is a widow of the deceased, and, secondly, that her children are children of the deceased or children that the deceased had taken into his family and treated as his own.

Regarding her marriage to the deceased, she depones that theirs was a Kisii customary law marriage. A customary marriage, being formal, is attended by various formalities, just like a civil or religious marriage. She does not provide any material to show that the relevant Kisii ceremonies relating to marriage were conducted. I must state that proof of such a marriage cannot in any event be by affidavit evidence. The application ought to have been disposed of by viva voce evidence, where the applicant would expose herself to cross-examination. The alleged Kisii customary marriage is denied by the mother of the deceased, Ebisiba Mong’are, who has sworn an affidavit dated 14th December 2010. There is no material before me adequate to convince me that there was such customary law marriage as alleged. It is my finding that the applicant was not a customary law wife of the deceased.

Could it presumed from the circumstances of her life with the deceased that there was a marriage between them? The applicant has not pleaded a marriage of that kind. She has not documented her life with the deceased. She has merely averred that they married sometime in 1988 and had two children together. Whether they cohabited together for any period of time is not averred or pleaded. Presumption of marriage is dependent on prolonged cohabitation, as stated in Hortensia Wanjiku Yawe vs. Public Trustee Court of Appeal civil appeal number 13 of 1976. In the absence of evidence of such cohabitation there can be no basis for making the presumption. In the absence of evidence of prolonged cohabitation between the deceased and the applicant, I find that I am unable to presume marriage between them.

In view of my conclusions above, it is my finding that the applicant has not proved that she was a wife of the deceased and therefore I find no basis upon which she can be entitled to the remedy provided by section 26 of the Law of Succession Act.

Regarding the children, the applicant has attached birth certificates showing that they were children of the deceased. This evidence is reinforced by the consent order recorded in Nairobi Children’s Case No. 334 of 2009, which is a case between the deceased and the applicant in respect of one of the children. I find that Brian Onkoba and Quintin Orina are children of the deceased, and they are entitled to a share in the estate.

For the purpose of making provision for these children, I should consider the circumstances set out in section 28 of the Law of Succession Act, on their needs among other things. However, for me to take these circumstances into account some evidence must be placed before me. The applicant has not placed any evidence to shed light on the circumstances set out in section 28 of the Act. In the absence of such evidence I cannot exercise the discretion envisaged in section 27 of the Law of Succession Act

The orders that I make in the end are: -

That the applicant is not a widow of the deceased and therefore she is not entitled to the remedy provided by section 26 of the Law of Succession Act.

That Brian Onkoba and Quintin Orina are children of the deceased and they shall be provided for from the intestate estate of the deceased.

That said Brian Onkoba and Quintin Orina shall be entered into the list of the survivors of the deceased.

That the administrators are hereby directed to provide for the two, that is to say Brian Onkoba and Quintin Orina, in the distribution of the estate of the deceased during the confirmation of the grant.

That costs shall be in the cause.

DATED, SIGNED and DELIVERED at NAIROBI this 10th DAY OF October, 2013.

W. M. MUSYOKA

JUDGE