[2004] KEHC 2234 (KLR)
The court found that the appellant failed to prove the existence of a customary marriage to the deceased, as there was no evidence of compliance with customary marriage formalities. The lower court correctly evaluated the evidence and concluded that the appellant was not entitled to a share of the deceased's...
Source-derived case information.
- Citation
- [2004] KEHC 2234 (KLR)
- Parties
- Appellant: Pauline Nduta; Respondent: Gitau Muraguri
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 68 of 1996
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed
- Legal Topics
- Succession, Customary Marriage, Beneficiary Entitlement, Grant of Letters of Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Pauline Nduta
Appellant
Gitau Muraguri
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the appellant was married to the deceased under customary law and entitled to inherit his property.
- 2 Whether the respondent obtained the grant of letters of administration fraudulently by omitting rightful beneficiaries.
- 3 Whether the lower court erred in its evaluation of the evidence regarding the appellant's relationship to the deceased.
Ratio Decidendi
The court found that the appellant failed to prove the existence of a customary marriage to the deceased, as there was no evidence of compliance with customary marriage formalities. The lower court correctly evaluated the evidence and concluded that the appellant was not entitled to a share of the deceased's property. The respondent, as the deceased's nephew who cared for him, was properly recognized as the sole beneficiary. There was no basis to interfere with the lower court's factual findings or to set aside the grant issued to the respondent.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL APPEAL NO 68 OF 1996
PAULINE NDUTA ……………………………..…………. APPELLANT
VERSUS
GITAU MURAGURI …………………...……………….. RESPONDENT
JUDGMENT
This is an appeal from the Ruling of the Resident Magistrate, Thika (Hon. S. N. Mutuku) in Succession Cause No 42 of 1995 dated 22nd February, 1996. It is based on the following five grounds of appeal:
“1. The Learned Resident Magistrate erred when she sa id in her ruling that the Appellant had only called her relatives as her witnesses whereas for example witness No. 4 Ruel Wahinya has no any relationship with the Appellant whatsoever.
2. The Learned Resident Magistrate went wrong by failing to consider that the National Identity Card of the Appellant bears the name of the deceased which is a clear proof that the deceased was Appellant’s husband.
3. The Learned Resident Magistrate erred in relying on a hear say evidence that the deceased was insane whereas no single Hospital document was ever produced in Court to that effect and whereas the deceased was confirmed to have been w orking and had planted coffee which cannot be done by insane person.
4. The Learned Resident Magistrate further went wrong in failing to consider that the deceased daughter Veronica Wanjiku conf irmed that she was the daughter of the deceased on strength of her identity card which bore her father’s name the deceased.
5. The Learned Resident Magistrate erred in failing to consider that the Respondent had obtained the grant fraudulently by making false Affidavit that he was the only person surviving the deceased whereas his father who was the brother to the deceased was still there and alive even if he did not put the name of the appellant as the deceas ed’s wife.”
As is evident from the grounds, this appeal is based on the lower court’s findings of facts, rather than on a point of law.
The issue, therefore, before the Lower Court revolved around who is the rightful beneficiary of the deceased’s parcel of Land Loc S/Kabati/139. According to the evidence given before the lower court, the deceased had at one time been married. He got mentally unstable, and his wife left him. The deceased then lived with his mother, now deceased, and the Respondent, his nephew, took care of him. The Appellant who was working at a neighbour, and who had no place to live, was invited by the deceased’s mother to live with her and the deceased. It was from this that the Appellant told the court that she was married to the deceased under customary law and that all the formalities had been carried out.
However, the Appellant did not prove that she was married to the deceased under customary law. There was no evidence of any marriage between the Appellant and the deceased.
Consequently, the Trial Magistrate came to the conclusion based on the evidence before the court that the Appellant was not married to the deceased and was therefore not entitled to any share in his property and further that the Respondent (the deceased’s nephew) was the sole beneficiary of the suit land.
I am satisfied that the Magistrate evaluated the evidence before the court correctly, and came to a just decision, and I have no reason to interfere with his decision.
Accordingly, I dismiss this appeal, with costs to the Respondent.
Dated and delivered at Nairobi on this 24th day of June, 2004.
ALNASHIR VISRAM
JUDGE