https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9906

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KISUMU** **FAMILY APPEAL NO. E003 OF 2024** **MERCY ATIENO OUMA …..……………...…………..……..APPELLANT** **VERSUS** **CAROLINE AKINYI GEWA………..…………..………1ST RESPONDENT** **CHRISTINE NANCY AKOTH………………………… 2ND RESPONDENT** ***(Being an appeal from the Ruling and Order of Hon. V. Ogutu in Kisumu Chief Magistrates Succession Cause No. 217 of 2020 delivered on 13th March, 2024)*** ***JUDGMENT*** **BACKGROUND** 1. This is an Appeal from the Ruling and Order of Hon. Ogutu on an application for Revocation of grant in the matter of the Estate of Kevin Omondi Gewa (Deceased). The trial Magistrate found that the Appellant had not established that she was the widow of the deceased and therefore had no claim against the estate of the deceased, and the trial court declined to revoke the confirmed grant that had been issued to the Respondents herein. 2. The Application had been canvassed by way of written submissions and the parties had filed their affidavits which the court relied on to make the decision that is now subject of this Appeal. 3. The Appellant dissatisfied with the trial court Ruling, has now preferred the instant Appeal and listed 7 grounds of Appeal as set out below:- * 1. *The trial Magistrate failed to appreciate the nature of the application which was before her for determination and erred in law and fact when she reached and/or made a conclusive finding that the Appellant was not married to the deceased on an application and on the basis of affidavit evidence only.* 2. *The trial Magistrate erred in law and fact in finding and holding that the Appellant was not married to the deceased when there was sufficient evidence before the court showing that the Appellant was married to the deceased and the deceased has actually/ recognized the marriage between him and the Appellant and had even named the Appellant in his employment records as his wife.* 3. *The trial Magistrate erred in law and fact in ignoring the evidence tendered before the court by the Appellant and which clearly proved that the deceased and the Appellant had lived together as husband and wife and the deceased was even providing for the Appellant as his wife.* 4. *The trial Magistrate erred in law and fact by making a finding which she was not called upon to make, and further erred when she reached the conclusion that no marriage existed between the deceased and the Appellant.* 5. *The trial Magistrate erred in law and fact in failing to appreciate that what she was called upon to determine was limited to whether or not the Appellant should have been involved or informed by the Respondents of the petition they had filed for issuance of a grant of letters of administration in respect of the estate of the deceased and more so in view of the fact that the Respondents knew of the Appellant's interest in the deceased's estate before they filed the petition.* 6. *The trial Magistrate erred in law and fact by reaching a decision which was based on irrelevant matters and also exceeded her jurisdiction and gravely erred when she found and held that the Appellant was not the deceased's wife.* 7. *The trial Magistrate erred in law and fact in deciding the application before her against the weight of the evidence on record.* **Trial Court Evidence** 1. The Appellant’s case at the lower court was that she got married to the deceased on the 15th December, 2003 in accordance with the Luo customary law and the deceased died on 18th April 2020. That she was the only surviving beneficiary of the deceased because the deceased had no children. Her affidavit in support of the application for revocation stated that the deceased was an employee of Teachers Service Commission. 1. That she got to learn that the Respodents herein, who are sisters to the deceased had taken out letters of Administration in respect of the estate of the deceased and had them confirmed on the 21st February 2021 without her knowledge and without her consent. In her affidavit in support of the application for revocation, she attached a next of kin details form from the TSC indicating that she was the wife of the deceased. 2. In a supplementary affidavit sworn on 1st December, 2023, the Appellant stated that she got married to the deceased while he was working at Mutumbu girls where he had been posted in the year 1997. In this affidavit, she attached several photos of herself, other members of the family of the deceased and stated that the photos were an indication of her being known to the family and having attended family events. 1. She explained that the letter of the chief was signed by Ass. Chief Maliera who was holding fort at Malanga because the Ass. Chief Malanga had retired. 1. On further dependency, the Appellant attached to the supplementary affidavit her Mpesa statements for the year 2017, 2018 and a few for 2019 and stated that the deceased supported her as spouse and used to send her money regularly. 2. The Appellant had urged the court to find that the grant was obtained through concealment of the fact that she was the widow of the deceased and therefore it ought to be revoked. 3. The Respodents on their part had stated that they were the sisters to the Deceased. According to them, they petitioned the Court and were on 30th October 2020 granted Letters of Administration of the estate of the deceased. That the petition was gazetted and the notice published on 7th August 2020 and there was no objection by anybody and that is when the Grant was issued and confirmed on 7th February, 2021. 4. The Respondents stated that the Deceased, who hailed from West Kadinga Sub-location, South West Seme Location, Kombewa Division, Seme Sub- County in Kisumu County died single having never been married or cohabited with anyone. He also died with no children. They had stated that they obtained a letter from the chief of the above area confirming that the Deceased died single and without children. 1. According to the Respodents, the claim that the Appellant got married to the Deceased on 15th December 2003 under Luo customary law is not within the knowledge of any member of the Deceased’s family. That nobody was made aware of such a ceremony let alone witnessed or attended the same. 2. That the burial permit was issued to the 1st Petitioner, Caroline Akinyi Gewa, as next of kin and the neither the Appellant nor anyone representing her attended the funeral of the deceased. 3. The Respodents stated that they only got to know about the Appellant when they went to process the benefits of the deceased and found a next of kin form with her name. They stated that they contacted her through her number indicated on the form and she informed the first respondent that she was only a girlfriend of the deceased and that their relationship ended. According to the Respondents, by then the Appellant knew of the grant and did not object but only came to file the motion for revocation much later when she realized that she could get a financial windfall. 1. According to the Respodents, there was no ceremony conducted for the alleged marriage in 2003 and no photographs or a witness was brought to court as evidence of the ceremony. 2. According to them, their mother died the following year in 2004 December, and while the deceased was heavily involved in the planning, again the Appellant did not attend the funeral and that the deceased had a girlfriend who he introduced to the family at the time and it wasn’t the Appellant, but one Joyce Akinyi Omune. 3. The Respodents’ view was that the Appellant was a stranger to the family and the grant ought not to revoked on allegations of marriage that had not been proven. **Submissions by the Appellant** 1. The Appellant submitted that the trial magistrate had erred in law in failing to consider that the Grant was obtained through concealment of the fact that the Appellant was a wife of the deceased, and the Respodents had not obtained her consent as is required in law. The Appellant argued the seven grounds in two parts – part 1 covering grounds 1,4,5 and 6 and Part 2 coverings grounds 2,3 and 7. 2. She submitted the trial magistrate erred in law in determining the issue as to whether there was a marriage between the Appellant and the deceased. According to the Appellant, the scope of the Application was revocation of a grant and not marriage and it was premature to make a decision on the question of marriage as this should have been decided at the distribution stage. The Appellant cited the case of ***Catherine Wanjiru Komu vs Priscillah Nyambura Komu (2016) eKLR*,** to support this submission and submitted that the trial court ignored the decision. 1. In any event, the Appellant submitted that there was evidence of marriage which was : - 1. Next of Kin details filled for TSC purposes where the Appellant was indicated as a wife. 2. Letter from the Chief North Gem indicating that the Appellant was the wife of the deceased. 3. Mpesa statement indicating that the deceased would send some money to the Appellant in the year 2017, 2018 and a few times in 2019. 2. The Appellant submitted that she did not attend the funeral of the deceased in the year 2020, because of the travel ban experienced in the country at the time due to Covid 19 pandemic. On the failure to attend the funeral of the mother to the deceased who is also mother to the Respodents, the Appellant felt that the Respondents ought to have provided a list of the mourners who attended the funeral. She also submitted that that was not part of the issues tabled for determination. 3. The Appellant submitted that the trial court erred in not finding that the Appellant was indeed the wife of the deceased even on the face of the next of kin details form, faulting the trial magistrate for finding that the form was not sufficient to prove a customary marriage under the Luo traditions. 4. She finally submitted that the trial court fell into error by finding that the application was grounded on the marriage under Luo customary law and not a presumption of marriage. **Submissions by the Respondents** 1. The Respondents submitted that there was no error at all when the trial magistrate first determined the question as to whether a customary law marriage existed between the Appellant and the deceased. That the allegation was that the Respodents concealed material evidence that the Appellant was a wife of the deceased and proceeded to take out the letters of Administration without her consent. 2. The Respodents submitted that the Appellant submitted that what the Learned magistrate should have considered, at that stage, was whether on the material placed before the court, the Appellant had demonstrated a legitimate claim, or interest in the estate of the deceased and therefore the need to be informed and involved in the petition for the grant by the Respondents. 3. The Respondent submitted that the whole claim was grounded on the allegations by the Appellant that she was married to the deceased, through the Luo Customs and therefore the starting point ought to have been to confirm that there was such a marriage before the right to administer the estate could accrue. 1. The Respondent submitted that Appellant did not furnish the lower court with any evidence of the marriage including any pictures of the purported ceremony and she did not explain if and how dowry was paid, who accompanied the Deceased, which family members on either side were present or and did not bring a single witness who was present during the purported marriage. 1. Counsel submitted that a marriage under the customs has specific rites and process and there is no evidence of any rite or process having taken place. He submitted that under the Luo customs, there are certain mandatory processes like “ayie” or “nyombo” that must be complied with, yet there is no evidence that ayie or nyombo was done. 2. The Respondents submitted on the requirements of the law. That the marriage Act requires that customary marriages be registered and there be witnesses at registration. That the alleged customary marriage herein has no evidence of Registration. 3. In the circumstances, counsel urged the court not to interfere with the findings of the trial court on the Application for the Revocation of grant. # Analysis and Determination 1. This being a firs Appeal, the duty of the court is to approach the whole of the evidence on record from a fresh perspective and with an open mind. As was espoused by the Court of Appeal in the case **of *Selle & Another Vs Associated Motor Boat Co. Ltd &Another (1968) EA 123*,** my duty is to evaluate and re-examine the evidence adduced in the trial court in order to arrive at my own findings. Further, the Appellate court will not normally interfere with a lower court's findings of fact unless the same is founded on wrong principles, misapprehension of evidence or based on no evidence. The court of Appeal in the **Selle** case (supra) held thus: **"A court on appeal will not normally interfere with the finding of fact by a trial court unless it is based on no evidence, or on a misapprehension of the evidence, or the judge is shown demonstrably to have acted on wrong principles in reaching his conclusion,''** 1. This duty was also was also discussed by the Court of Appeal in ***Kenya Horticultural Exporters Ltd vs Julius Munguti Maweu Civil Appeal No. 9 of 2004*,**where it was held that: - *“On a first appeal the Court has the duty of re-evaluating the evidence, assess it and make its own conclusions without overlooking the conclusions of the trial court and bearing in mind that unlike the trial court it* *neither saw nor heard the witnesses.* 1. With that in mind, I have considered the Memorandum of Appeal, the submissions in support and in opposition to the appeal, the trial court’s affidavit evidence and the decision of the lower court. I will frame the following issues for determination. 2. *Whether the grant herein was obtained fraudulently and in concealment of a material fact – which fact was that the appellant was a wife to the deceased.* 3. *Whether it was an irregularity in law for the Respodents to have failed to obtain the consent of the Appellant when they applied for the letters of Administration to the estate of the deceased.* 4. *Whether this court should interfere with the findings of the trial court and revoke the grant issued to the Respondents herein.* 5. *Who should bear the costs of the appeal?* ***Whether the grant herein was obtained fraudulently and in concealment of a material fact – which fact was that the appellant was a wife to the deceased.*** 1. The Appellant submitted that the trial magistrate had erred in law in failing to consider that the Grant was obtained through concealment of the fact that the Appellant was a wife of the deceased. So that it was the duty of the Appellant to bring evidence to demonstrate that she was the wife of the deceased and that the Respondent concealed this fact for the court to issue a grant to them. It was the duty of the Appellant to demonstrate that she was the wife of the deceased because the onus and burden of proof in law rests with the party who alleges, based on the maxim “***he who alleges must proof”.*** The court in ***Evans Nyakwana vs.Cleophas Bwana Ongaro (2015) eKLR*** summarized the burden of proof inthefollowingterms**:-** *"As a general preposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of Section 107(i) of the Evidence Act, Chapter 80 Laws of Kenya. Furthermore, the evidential burden...is cast upon any party, the burden of proving any particular fact which he desires the court to believe in its existence. ……the appellant did not discharge that burden and as Section 108 of the Evidence Act provides the burden lies in that person who would fail if no evidence at all were given by either side."* 1. In the instant case it is the Appellant who has laid a claim on the estate of the deceased based on her allegations that she was a wife. So that for her to participate in the administration of the estate of the deceased, she needed to demonstrate to the court that the right to administer the estate accrued by the virtue of her being a spouse to the deceased. 2. My finding therefore is that the trial magistrate did not err in first determining the question of whether there existed a marriage between the appellant and the deceased in order to establish whether the Appellant had the capacity to seek a revocation of the grant issued to the Respondents. 3. And to establish that she was a spouse, the Appellant pleaded that she got married to the deceased through a Luo customary marriage on 15th December, 2003. 4. The law on proof of customary marriage is well settled. In ***Hortensiah Wanjiku Yawe v The Public Trustee [1976] KLR 64,*** the Court of Appeal held that for a customary law marriage to be proved, there must be evidence of the specific customs of the community, including the payment of dowry and the celebration of the marriage according to those customs. The court stated; *“The burden of proving a customary law marriage is on the person who alleges it. Such proof must go beyond mere assertions and must include evidence of the rites and rituals performed, the payment of dowry, and the participation of the families of both parties."* 5. This position was affirmed in ***Virginia Edith Wambui Otieno v Joash Ochieng Ougo & Another [1987] eKLR*.** (SM Otieno case), where the Court of Appeal emphasized that customary law is a matter of evidence to be proved by those who allege its existence. 6. Applying these principles to the present case, I have carefully examined the evidence tendered by the Appellant. The evidence given to court by the Appellant is a next of kin details form from the employer of the deceased naming the Appellant as a wife, a letter from the chief North Gem indicating that the Appellant was the wife of the deceased and Mpesa statement of the Appellant for the period 12/01/2017 to 25/09/2019 showing that the deceased sent the Appellant some funds. 7. Respectfully, a next of kin form, a letter of the chief and a Mpesa statements are not and can never be evidence of a customary marriage under any of the African traditions and more so the Luo customs. They cannot pass for the rites and ceremonies contemplated under the Luo customs and those ceremonies are well known under the said customs, being: - * 1. Knowing of the home (Ng’eyo Dala) 2. Ayie (Acceptance) 3. Nyombo (Dowry Payment) 4. And then more recently the Marriage Act provides that all customary marriages be registered. 1. To begin with, the Rule 8 (1) of the Marriage (Customary Marriage) Rules, 2017, provides that parties to a marriage contracted under customary law before the commencement of the Marriage Act shall apply to the Registrar for customary registration of that marriage pursuant to section 96(2) of the Marriage Act. The Appellant herein states that she was married in 2003, and therefore her marriage was before the marriage Act. This marriage (if any), then ought to have been registered as contemplated in the Marriage Act. The Appellant did not provide any proof of such registration of her alleged marriage to the deceased. The alleged marriage therefore would not meet the statutory requirements. 2. Further, considering the customary requirements, there is no evidence whatsoever from the Appellant that any of the mandatory rites and ceremonies under the Luo customs were conducted between her and the deceased and actually evidence on record is that the Appellant is a complete stranger to the deceased’s family as the only girlfriend (not wife) who the deceased had introduced to the family was one Joyce Akinyi Omune. 3. The Appellants placed particular emphasis on the case of ***Catherine Wanjiru Komu vs Priscillah Nyambura Komu (2016) eKLR*,** to argue that the trial magistrate had erred in going into the requirements of a customary marriage whereas she should have been looking at whether the Appellant had a genuine, legitimate claim or interest in the estate of the deceased. 4. I have considered the said decision and as I have stated earlier on this Judgment, the Appellant needed to establish first that she was a spouse of the deceased and from that position of a spouse, then she had a genuine legitimate claim or interest in the estate of the deceased and not the other way round, as the Appellant wants this court to believe. If the court was to do as is being proposed by the Appellant, it would create a crisis in administration of estates of deceased persons because it would issue letters of administration to parties who have no relationship with the deceased person and have no legitimate interest in the same, and revoke them at the confirmation stage. This would be contrary to fair administration of estates and also against the provisions of the law. 5. In conclusion, I find that the Appellant has not established that she was a wife of the deceased and therefore she had no legitimate interest in his estate and therefore the trial court did not err in finding that there was no customary marriage between the deceased and the Appellant and did not err in declining to revoke the confirmed grant issued on the 25/02/2021. 6. The Appellant on one of the grounds of Appeal states that the trial court erred in basing the relationship of the deceased and the Appellant on customary marriage and failed to consider the issue of presumption of marriage. So that then, my next question would be whether a presumption of marriage can be said to have existed between the Appellant and the Deceased, probably because of the allegation that they were together from the year 2003 to 2020, the Next of kin form and the fact that he sent her some little money in the year 2017 to 2019 as evidenced by the Mpesa statements. 7. In the case of ***re Charles Macharia Muraguri (Deceased) P&A Appeal E010 of 2022 eKLR (2025) KEHC 4849 (KLR)***, Justice Maureen Odero stated as follows: - *“Before a presumption of marriage can arise, a party needs to establish long cohabitation and acts showing general repute. If the 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, 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 the 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 a 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*”. 1. In the case of ***MWK -VS- AMW [2017] eKLR*,** Hon. Justice Joel Ngugi (as he then was) discussing the concept of a ‘presumption of marriage’ stated as follows: - *“Since then our case law has been consistent in following the English common law in requiring that a presumption of marriage arises only when a person proves two factual predicates* 1. *Quantitative element - namely the length of time the two* *people have cohabited with each other; and* * 1. *Qualitative element - namely acts showing general repute that the two parties held themselves out as husband and wife. Factors tending to demonstrate this qualitative element include whether the parties had children together, whether the community considered the two as husband and wife, whether the two carried on business jointly or whether they took a loan jointly, whether the two held a joint bank account and so forth.”* 1. The Appellant did not during the trial adduce any evidence that would lead to a presumption of marriage. Even with the mention that they started living together in 2003, the Appellant did not tell the court why the deceased was under the care of his sister in the year 2020 when he passed on. 2. She states that the deceased used to support her and attached Mpesa statements for about 3 years from 2017 to 2019. She did not tell court why the deceased stopped supporting her in 2019 if indeed she was the wife. There is a possibility that the true story is that she was a girlfriend of the deceased at some point and she was sent a little money when the relationship existed and the support ended when the relationship ended. 3. For the 17 years the Appellant alleges that she was married to the deceased, she doesn’t tell court whether they did any business together, or had a joint account or had any children together, or where they carried themselves as a husband and wife, since the family of the deceased did not even know her. 4. On the next of kin form, the form would not count as sufficient evidence for a presumption of marriage and taken alone, it would not be proof of existence of a marriage. 5. On the letter of the chief from North Gem, evidence on record is that the deceased left Mutumbu Girls in year 2015 when the signatory of the letter – Philip was an assistant chief Maliera sub location. The School is in Malanga sublocation and the argument is that at no time was the deceased resident in the sublocation headed by Philip. I have considered the two letters attached to the affidavits in the trial court. It is clear that the deceased had left Mutumbu girls by the time of his death and was a teacher at Ramula. The best placed chief to have given the letter of the chief is the one for the residence of the deceased when he met his death and not Philip. In any event, a letter of the chief is also not proof of a customary marriage and must be supported by the rites under the particular custom. 6. My finding is that the court would not even presume a marriage between the deceased and the Appellant so that she would be eligible to take out letters of administration on the estate of the deceased. ***Whether it was an irregularity in law for the Respodents to have failed to obtain the consent of the Appellant when they applied for the letters of Administration to the estate of the deceased.*** 1. Having found that the Appellant has not established that she was a wife to the deceased, my finding is that she was a complete stranger to the estate of the deceased. The Respodents therefore did not require any consent from her for them to institute the succession Cause. In those circumstances, the estate of the deceased was supposed to be administered according to Section 39(1) of the law of Succession Act, which makes provision for administration of an estate where the deceased is not survived by a spouse or children. It provides as follows: - Where an intestate has left no surviving spouse or children, the net intestate estate shall devolve upon the kindred of the intestate in the following order of priority— (a) father; or if dead (b) mother; or if dead (c) brothers and sisters, and any child or children of deceased brothers and sisters, in equal shares; or if none (d) half-brothers and half-sisters and any child or children of deceased half-brothers and half-sisters, in equal shares; or if none (e)the relatives who are in the nearest degree of consanguinity up to and including the sixth degree, in equal shares. 1. The deceased had already lost his father and mother and the next in line was category (c), being brothers, sisters and any child or children of the deceased brothers and sisters. 2. My finding is that it was not an irregularity in law for the Respodents not to have obtained the consent of the Appellant to administer the estate of the deceased, because they were the next in line according to Section 39 (1) of the Law of Succession Act. ***Whether this court should interfere with the findings of the trial court and revoke the grant issued to the Respondents herein and who should bear the costs of the appeal?*** 1. **As stated elsewhere in this judgment, the Court of Appeal in** ***Selle & Another Vs Associated Motor Boat Co. Ltd &Another (1968) EA 123*,** held thus:- **"A court on appeal will not normally interfere with the finding of fact by a trial court unless it is based on no evidence, or on a misapprehension of the evidence, or the judge is shown demonstrably to have acted on wrong principles in reaching his conclusion,''** 1. In the instant Appeal, I have found that the trial court did not err in its decision that the Appellant needed to prove marriage before the grant could be revoked and that the Respondents had not concealed any truth because the Appellant was not the wife of the deceased. In those circumstances, this court would have no reason at all to interfere with the decision of the trial court. 2. In conclusion, I find that the Appeal herein lacks merit and the same is dismissed. Each of the parties will bear their own costs. **Orders Accordingly.** **JUDGMENT** delivered, dated and signed virtually at Nairobi This **3rd** day of **July**, 2026. **…………………………..………………** **L. M. WACHIRA** **JUDGE** **In the Presence of:** *Leadys* –Court assistant Mr. Ahomo for the Appellant Mr. Odhiambo for the Respondent.