[2004] KEHC 168 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NYERI SUCCESSION CAUSE 31 OF 2001

IN THE MATTER OF ESTATE OF JOSEPH GATHIGO KABUITO - DECEASED

AND

PRISCILLA WARUGURU GATHIGO ……………………...………. PETITIONER

VERSUS

VIRGINIA KANUGU KATHIGO ……………………………………. PROTESTER

J U D G M E N T

This is a dispute relating to the estate of Joseph Gathigo Kabuito (hereinafter referred to as deceased) who died on 24th November 2000. Priscilla Waruguru Gathigo (hereinafter referred to as the Petitioner) obtained Letters of Administration from this court in respect of the estate of the deceased. She applied for confirmation of the grant citing herself and her 9 children as the only beneficiaries of the estate.

Virginia Kanugu Kathigo (hereinafter referred to as the protester) filed a protest against the confirmation of the grant. She claimed that she was a wife of the deceased and that she had been excluded from the estate together with her children. The Protester had in the meantime filed a succession cause No. 28 of 2001 in respect of the deceased estate in Kerugoya Principal Magistrate’s court where she also obtained letters of administration in respect of the estate.

By a consent order recorded by Hon. Juma J the Kerugoya Succession Cause No. 28 of 2001 was transferred to this court and consolidated with this cause. Both the Petitioner and Protester were then appointed joint administrators and it was agreed that the issue of distribution be determined through viva voce evidence.

The Petitioner, Benson Mwangi Mithamo (P.W.2) who described himself as a brother of the deceased’s father and Antony Kagwitu Rangata (P.W.3) who claimed the deceased and his father were brothers all testified in support of the Petitioner’s case. They claimed the deceased’s only wife was the Petitioner whom he wedded in church in 1965 and that the deceased never married or cohabited with the Protester. The Petitioner maintained that her children and herself were the only lawful beneficiaries to the estate of the deceased. She urged the court to apportion her husband’s Tea Sacco A/C to go to her absolutely and his land Mutira/Kaguyu/192 and plot No. 2C Gathuthuma to be registered in the Petitioner’s name in trust for herself and her children.

The Protester on the other hand contended that the deceased married her in 1979 under Kikuyu customary law. She testified that the deceased paid dowery and the customary “Njohi” to her brothers (her parents being deceased) sometime in 1996. She claimed she had 4 children prior to her marriage to the deceased and had 3 other children with the deceased. She testified that the deceased accepted all her children and treated them as his. She produced birth certificates in respect of two of the children wherein the deceased was indicated as the father of the children. She testified that during her stay with the deceased she used to tend his tea and that her co-wife the Petitioner used to cultivate the same land. The deceased had given the Protester’s daughter Florence Wanjiru 2130 tea bushes from which she used to pick tea. She urged the court to distribute the estate of the deceased equally between his two “houses.”

Florence Wanjiru Mwangi (D.W.2) the Protester’s daughter confirmed that the deceased married her mother and took care of her as a daughter. She produced a Tea licence which she obtained in 1998 for 2,130 Tea bushes which the deceased gave to her and which she used to tend and pick.

Bernard Mwangi (D.W.3) and Charles Karuga Kamonde (D.W.4) both brothers to the Protester also confirmed that the Protester was married to the deceased under kikuyu customary law and that the deceased took 2 crates of soda to them and paid Kshs.80,000/= as dowery being the monetary substitute for all the customary requirements. They maintained that under kikuyu customary law the Protester was the deceased’s wife and therefore entitled to inherit the deceased’s property.

Rev Peter Munene Ndogo (D.W.5) the Deputy Principal and Chaplain of Njegu Secondary School produced a student’s personal record in respect of Samuel Mwangi Gathigo which showed his father as Joseph Gathigo, and mother as Virginia Wambui. Ephantus Mugo (P.W.6) was the photographer who took photographs during the wedding of Phoebe Nyaguthii a daughter of the Protester born prior to her marriage to the deceased. The same were produced in evidence and showed the deceased participating at the wedding.

Both counsel for the Petitioner and counsel for the Protester each filed written submissions urging this court to find in favour of his client.

From the evidence adduced it is apparent that the deceased and the Petitioner were married under the marriage Act Cap 150. It is true that under section 37 of the marriage Act neither the Petitioner nor the deceased had the capacity to contract a customary marriage to another 3rd party during the subsistence of their marriage.

Nevertheless for the purposes of the law of succession section 3(5) of the law of succession Act as amended by Legal Notice No. 10 of 1991 provided as follows:

“Notwithstanding the provisions of any other written law, a woman married under a system of law which permits polygamy is, where her husband has contracted a previous or subsequent monogamous marriage to another woman, nevertheless a wife for the purposes of this Act and in particular sections 29 and 40 thereof, and her children are accordingly children within the meaning of this Act.”

In the case of Irene Njeri Macharia v/s Margaret Wairimu Njomo & Patrick Muriithi Harrison (Nrb) CA 139 of 1994, the court of appeal considered section 3(5) of the law of succession Act and ruled that for the purposes of the law of succession Act, section 3(5) overruled section 37 of the marriage Act such that a woman married to a man who had no capacity to contract a marriage under section 37 of the Marriage Act is considered a wife for the purposes of the law of succession provided she is married under a system of law which recognises polygamy.

The main issue here is therefore whether the Protester was married to the deceased under kikuyu customary law as she claims. It was submitted by Mr. Mahan who appeared for the petitioner that the Protester had not proved the essentials of a valid kikuyu customary marriage as there was no evidence that a Ngurario ram was slaughtered (Zipporah Wairimu v/s Paul Muchemi HCCC 1280 of 1970) and that there was no evidence of any Ruracio nor did the Protester prove that she had given consent to marry.

For the Protester it was submitted that her witnesses had proved that there was a marriage and it was further submitted that the deceased had accepted the Protester’s children as his own and taken care of them and that the Birth Certificate produced in respect of two of the children and the personal record from the school confirmed that the children were fathered by the deceased.

Having carefully considered the evidence I find that the evidence adduced by the Protester in proof of her alleged marriage to the deceased fell short of proving the alleged marriage. Apart from her daughter and 2 brothers there were no other independent witnesses to the customary formalities. There was no evidence that there was any Ngurario ram slaughtered nor was there any evidence that there were any elders from the deceased’s relatives who participated in the alleged formalities. Moreover if the deceased and the Protester got married in 1979 there is no explanation why the formalities were being done almost 17 years later in 1996.

The Protester’s attempts to prove the paternity of her children by producing birth certificates was also not convincing at all as these certificates were obtained after the death of the deceased and therefore with this suit in mind. The personal record from the school also contradicted the information on the Birth certificate, such that the documents could not be relied upon.

It is evident that the Petitioner was not very honest as regards the amount of Kshs.130,000/= which she obtained with leave of the court to withdraw for school fees of her son, but admitted to have used in maintaining herself and pursuing this cause. It is also apparent that the Petitioner’s witness Benson Mwangi Mithamo admitted that until 5 years ago he was living in Nakuru. He could not therefore positively swear of his own knowledge as to the affairs of the deceased.

Nevertheless there is no doubt that the deceased was married to the Petitioner under the marriage Act (Cap 150)and that they had 9 children. It was for the Protester to prove that she was also married to the deceased under kikuyu customary law and is therefore a wife under section 3(5) of the law of Succession Act. This the Protester failed to do. The Protester also failed to prove that her children were “children” or “dependants” of the deceased under the law of Succession Act.

I find therefore that the Protester and her children are not entitled to inherit the estate of the deceased. I find that the Petitioner and her children are the lawful beneficiaries to the estate of the deceased. Since the affidavit in support of the Petitioner’s application for confirmation of grant dated 20th April 2001 does not include all the deceased’s assets. It is hereby directed that the Petitioner shall file an appropriate application for confirmation of the grant in her favour and including all the assets of the deceased for distribution.

The Protest is otherwise dismissed. Those shall be the orders of this court.

Dated signed and delivered this 16th day of November 2004

H. M. OKWENGU

JUDGE