[2021] KEHC 3927 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

FAMILY APPEAL No.16 OF 2019

BETWEEN

REBECCA MUTHONI KAMAU.............................................................APPELLANT

VERSUS

TABITHA MUTHONI KAMAU............................................................RESPONDENT

(Being an appeal from the ruling of Hon J. Kassam Senior Resident Magistrate

on 17th January,2019 in CMC Succession Cause No 24 of 2017 Mombasa)

JUDGMENT

1. The deceased whose estate these proceedings relate one Joseph Samson Kamau Maina died intestate on 22nd February, 2015 while domiciled in Mombasa. On 15th February, 2017 one Rebecca Kamau in her capacity as a widow petitioned for a grant of representation. According to form P & A 5, she listed herself and her three sons Gabriel Maina Kamau, Michael maina Kamau and Jonathan Irungu Kamau as the survivors to the deceased.

2. Among the assets listed as comprising the estate was;

(a) Motor vehicle registration No. KAC 074 Q Peugeot

(b) Land registered as Gilgil/Karunga/block 9/1754

(c) Land registered as Salama Pasi Block 1/24/OMC)

(d) Land registration No 1MN/12830

(e) Shares in Gatatha Farmers Company limited

(f) Shares in MBO-1 Kamiti Farmers Company limited

3. A grant of letters of administration intestate was issued to Rebecca on 5th February, 2018. Before confirmation, one Tabitha Muthoni Kamau lodged an application on 31st January, 2018 seeking leave to lodge her objection challenging issuance of the grant without her knowledge as the deceased’s wife. On 2nd February, 2018, leave to file the intended objection by way of answer to petition and cross petition was granted. Further, Tabitha filed an application for revocation of a grant dated 31st January 2018 claiming that she was a widow to the deceased having been married to the deceased under Kikuyu customary law hence the grant was obtained fraudulently and through concealment or non-disclosure of material information to the court.

4. She claimed that she had stayed with the deceased as husband and wife until he died. She attached a copy of the deceased’s eulogy and obituary in which she and the respondent were recognized as the deceased’s wives. That she was issued with a burial permit and that the deceased was buried in a plot at Mbelegeza in which the two were residing. She further stated that the Petitioner had forged a death certificate and burial permit claiming to be the sole wife.

5. In response to the revocation application, Rebeca filed an affidavit that was referred to as “an answer to summons” for revocation of grant. The response which was filed on 12th October, 2018 referred to the revocation application as the summons dated 5th February, 2018 which copy is not on record. That confusion and omission notwithstanding, the petitioner (appellant) claimed that, she was the only legal wife to the deceased, and that their monogamous marriage was still valid. She averred that she and her three children were the only dependants to the deceased.

6. She deposed that the respondent was a mere friend to the deceased and not a wife. That the deceased had no legal capacity to marry another wife before dissolving their monogamous marriage.

7. The matter proceeded to full hearing by way of viva voce evidence. Pw1 Tabitha Muthoni told the court that she got married to the deceased the year 2012 under Kikuyu customary law. That the deceased paid kshs 40,000 as appreciation to her family. That they moved from Nakuru to Mombasa and settled at Utange area where they cohabited as husband and wife until the deceased died. She stated that they were not blessed with any child and that she was the one who took care of the deceased while sick until he died. That the deceased was buried in their matrimonial home where the two were living.

8. She however recognized Rebecca as the first wife to the deceased but who had separated by the time she (Pw1) was getting married to the deceased. She also confirmed that the deceased had three sons with Rebecca. It was her testimony that she was never considered nor consulted when this succession case was filed

9. On her part, Rebecca (Dw1) stated that she was the only legal wife to the deceased having been married in 1974 and that she did not abandon the deceased. She acknowledged that she and Rebecca participated in the burial of the deceased albeit hostility from the in laws against her. She claimed that the property in which her husband was buried was bought through her joint effort with the deceased. She urged the court to consider her as the administrator to the estate.

10. On cross examination, she told the court that at some point the year 2010, her husband evicted her from their matrimonial home. That the deceased expressed his intention to get another person (wife). That when the deceased was sick, he intimated that he wanted “a shamba Woman” hence Tabitha was a mere worker but not a wife.

11. After considering the pleadings and evidence from both parties, the honourable magistrate upheld the revocation application on grounds that the grant was obtained fraudulently and without material disclosure of all information related to the case. The court further held that Tabitha was a wife to the deceased for purposes of succession. That there was proof of both customary marriage and presumption of marriage. Accordingly, the court recognized Tabitha as a dependant and beneficiary to the estate the grant issued herein on 7th December, 2017 was revoked and a fresh one issued in the joint names of the Applicant and Respondent.

12. Aggrieved by the court’s ruling delivered on 17th January, 2019, Rebecca filed a memorandum of appeal dated 15th March, 2019 and filed on 18th March 2019 citing 7 grounds as follows;

(1) That the honorable magistrate erred in law and in fact by making a finding that the respondent was legally married to the deceased;

(2) That the Honourable magistrate erred in law and in fact by holding that the deceased has to enter a marriage with the respondent while being married under cap 150 to the applicant;

(3) That the Honourable magistrate erred in law and in fact in making a finding that the respondent cohabited with the deceased hence a presumption of marriage;

(4) That the Honourable magistrate erred in law and in fact in making a declaration that the respondent is the deceased’s dependant.

(5) That the honourable magistrate erred in law and in fact in making an order that the respondent be included as an administratix, dependant and beneficiary in the petition for letters of administration of the deceased’s estate;

(6) That the Honourable magistrate erred in law and in fact in making an order of revocation of the letter of administration of 7th December, 2017;

(7) That the Honourable magistrate erred in fact in failing to appreciate the evidence and submissions tendered by the appellant.

13. After taking directions, parties agreed to file submissions in disposition of the appeal.

Appellant’s submissions.

14. The appellant filed her submissions through the firm of J Katisya raising two issues for determination framed as follows;

(a) Is the deceased Respondent a wife

(b) Is the Respondent a beneficiary or dependant.

15. Ms Katisya reiterated the testimony of the appellant. Counsel submitted that for a Kikuyu marriage to be established, there must be proof of capacity to marry, consent, Ngurario, Ruracio and commencement of cohabitation which in this case were lacking. In support of this submission, reliance was placed on Eugene Cotran’s case book on Kenya customary law at page 30 as quoted in C.A 132/2017 Eva Naima Kaaka &another vs Tabitha Waithera Mararo (2018)eKLR at page 5 .

16. learned counsel contended that;the deceased had no capacity to marry as he was still married to the Appellant under Christian marriage; there was no proof of consent by the respective families; there was no evidence or proof that Ngurario lamb was slaughtered; there is no evidence that the alleged dowry of 40,000 was paid and that, there was no proof that the respondent and the deceased had cohabited.

17. M/s Katisya contended that customary marriage is a matter of fact which must be proved by way of evidence. To buttress this point, the court was referred to the holding in the case of Gituanja Vs Gituanja( 1983) KLR 575.

18. Commenting on the issue of presumption of marriage, counsel contended that there was no proof of cohabitation and acts of general repute. To express this view, counsel referred to the finding in the case of Phylis Njoki Karanja and 2 Others Vs Rosemary Karanja and Another (2009) e KLR. Counsel further opined that the Respondent’s claim that she cohabited with the deceased from 2013 up to 2015 when the deceased died is not long enough to infer a presumption of marriage. That in the absence of children to prove cohabitation, there was no evidence to corroborate that fact. She contended that lack of independent witnesses to confirm that the deceased and the respondent behaved to the general public as husband and wife, the court cannot conclude that there was a presumption of marriage. According to learned counsel, the respondent was a mere employee not a wife to the deceased.

19. As to the issue of dependency, counsel opined that the Respondent does not qualify as a dependant under Section 29 of the Succession Act as she was not a wife. That failure to list the respondent as a dependant does not amount to fraud nor concealment of material information hence the respondent is not a beneficiary to the estate.

Respondent’s submissions

20. Through Ragira and Co. Advocates, the respondent filed her submissions on 25th January, 2021 citing on three issues/grounds for determination as follows;

(i) Whether the Defendant is a wife to the deceased;

(ii) Whether the Defendant is a dependant;

(iii) Whether the learned magistrate erred in revoking the grant.

21. With regard to the first issue, Mr Ragira submitted that Section 3 (5) of the Law of Succession Act does recognize the respondent’s marriage to the deceased even in the absence of dissolution of the alleged monogamous marriage. According to counsel, Section 3 (5) of the Law of Succession Act supersedes Section 37 of the repealed marriage Act Cap 150 which made any marriage contracted by a party before his or her monogamous marriage is dissolved invalid. To express this point, reference was made to the case of In the matter of the Estate of Isaac Gidraph Njuguna Mukururo ( deceased)( 2003) e KLR, Irene Njeri MachariaVs Margaret Wairimu Njomo and Another (1996) e KLR and HortensiahWanjiku Yawe Vs Public Trustee CA civil appeal of 13/1976 where both courts recognized marriages contracted by a person (Deceased) before dissolving the first or subsequent statutory marriage valid for purposes of succession pursuant to Section 3 (5) of the Law of Succession Act.

22. According to Mr. Ragira, there was sufficient proof of customary marriage or presumption of marriage based on; the alleged payment of dowry; inclusion of the respondent’s name as a wife in the deceased’s eulogy and obituary; her participation in the burial arrangements of the deceased in her matrimonial home; issuance of a burial permit and death certificate to the respondent plus introductory chief’s letter reflecting her name as a wife to the deceased. That all these evidence was not challenged hence enough proof of a marriage relationship between the deceased and the respondent.

23. As to dependency (issue 2), counsel submitted that a wife is a dependant under Section 29 of the Law of Succession and therefore entitled in priority under Section 66 of the Law of Succession to take out a grant of letters of administration on priority basis hence the revocation of the grant was proper to confer the respondent an opportunity to be a co- administrator.

24. This is a first appeal. The duty of the first appellate court is to re-analyze, re- examine and re-evaluate independently the evidence and the entire proceedings before the trial court and arrive at an independent conclusion and or determination while bearing in mind that the trial court had the opportunity to see and hear the witness for purposes of assessing the demeanor of witnesses. See Selle vs Associated Motor boat Company ( 1968) E.A 123 at page 126 where the court stated that;

“…an appeal to this court from a trial by the high court is by way of retrial and the principles upon which this court acts in such appeal are well settled. Briefly put, they are that, this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witness and should make due allowance in that respect. In particular this court is not bound necessarily to follow the Judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence, or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally”.

Similar position was held in Jivanji Vs Sanyo Electrical Company (2003) e KLR 425.

25. Bearing in mind the above principles, and having considered the record of appeal and submissions thereof, I am able to discern three issues for determination as follows;

(1) Whether the respondent was a wife to the deceased.

(2) Whether the respondent is a dependant to the estate

(3) Whether the Respondent met the criteria for revocation of the grant.

Whether the respondent was married to the deceased.

26. The most acrimonious issue in this appeal and the proceedings before the lower court is the controversy over the alleged customary marriage between the respondent and the deceased.

27. According to the appellant one Rebecca, she was the only legal wife to the deceased having contracted a statutory marriage which was never dissolved during the lifetime of the deceased. On the other hand, the respondent argued that she got married under Kikuyu customary law in which Kshs 40,000 was paid to her family by the deceased. However, she fell short of telling the court when the dowry was paid, who was present and whether any other Kikuyu ceremony in recognition of Kikuyu customary law practices and rites was carried out.

28. Indeed, proof of the existence of a customary marriage is a matter of fact which must be substantiated by adduction of evidence. See Gituanja vs Gituanja (Supra) where the court stated that existence of a customary marriage is a matter of fact which must be proved by evidence and that the evidence adduced had proven a valid marriage under Kikuyu customary law as was expressed by the slaughter of the “Ngurario”.

29. Similar position was held in the case of Hortensia Wanjiku YaweVs The Public Trustee (Supra) in which Justice Kneller identified three important principles regarding proof of customary marriage as;

(1) The onus of proving customary marriage is generally on the party who claims it

(2) The standard of proof is the usual one for a civil action namely, one on the balance of probabilities

(3) Evidence as to the formalities required for customary law marriages must be proved to the evidential standard.

30. Various judicial pronouncements as well as Cotran’s restatement case book on Kenya customary law marriages have elaborately deliberated on certain conditions or requirements that must be met before a valid Kikuyu customary law marriage can be pronounced. Such conditions include; capacity to marry, consent by both parties’ families, slaughter of a sheep otherwise known as Ngurario, payment of dowry (Ruracio) and commencement of cohabitation. These requirements were succinctly captured in the case of Priscilla Waruguru Gathigo Vs Virginia Kanugu Kathigo ( 2004) e KLR

31. From the evidence tendered before the court by Pw1 the objector/Appellant, she did not indicate the time or date when the Kshs 40,000 was paid. She did not call any witness who was present to corroborate her evidence. There was no mention of slaughtering of ram/sheep. It is trite that customary marriages are not conducted in secrecy. There must have been people among them elders to witness the ceremony and more importantly to conduct the attendant customary ceremonies and cultural practices. Guided by case law above, I am persuaded to hold that there was no proof of Kikuyu customary law marriage between the deceased and the respondent hence the trial magistrate erred in law and fact in finding that there was a kikuyu customary marriage.

32. Having eliminated the issue of customary marriage, was there marriage by way of long cohabitation otherwise known as presumption of marriage. In this case, the respondent (Dw1) stated that she started cohabiting with the deceased around the year 2012. On her part the appellant stated that, when the deceased evicted her from their matrimonial home in the year 2010, he indicated that he wanted some person. According to her (Appellant) the person she saw in the year 2013 was the respondent whom she knew an employee to the deceased.

33. It is trite that he who alleges must prove. In the case of Christopher Nderi Gathambo and Samuel Muthui Munene (2003)eKLR the court relied on the wisdom in Bromley Family law 5th Edition 64 where the author stated that;

“if a man and a woman cohabit and hold themselves out as husband and wife, this in itself raises a presumption that they are legally married and when it is challenged, the burden lies on those challenging it to prove that there was in fact no marriage, and not upon those who rely on it to prove that it was solemnized”

34. As stated by Mustafa JA in the case of Hortensia Wanjiku (Supra) long cohabitation as a man and wife gives rise to a presumption of marriage”

35. According to Katisya, there was no proof of when cohabitation commenced and neither was it demonstrated to the general public that they were staying as husband and wife. It is trite that for anyone to claim presumption of marriage, there has to be long cohabitation and acts of general repute-See Phylis Njoki Karanja & 2 Others Vs Rosemary Karanja & another (supra )

36. Although there is no minimum age set above which a presumption of marriage can be inferred, a period of 2 to 3 years is reasonable period to invoke a presumption of marriage. The appellant talked of the respondent working for the deceased from 2013 up to 2015 when the deceased died and the respondent talked of having been married the year of 2012.

37. If the court finds the two cohabited for either 2 or 3 years while holding themselves as husband and wife, then that period is sufficient enough to infer a presumption of marriage. Besides the respondent’s evidence, there was no independent witness who testified to confirm that the deceased and the respondent cohabited as husband and wife. However, besides physical witnesses, there are other independent sources of evidence which were adduced. Among such sources is the letter from the chief who although not called as a witness gave the appellant the introductory letter to petition for a grant listing Tabitha (respondent) as a widow. Further, when the deceased died, both parties were recognized in the obituary and the eulogy as widows. It was the respondent who was given a burial permit to process a death certificate. All these documents were admitted as evidence but never rebutted by the appellant.

38. From the spirit of the chief’s letter, it implies that he recognized the respondent as a wife to the deceased. It also means that, for the time they stayed together they presented themselves as husband and wife to the extent that the chief knew them as such. The appellant stated that during the burial, her brother in laws were hostile to her and not the respondent. These is further evidence that the in laws recognized the respondent as a wife to the deceased.

39. Besides the above, the deceased was buried within the residence where he was staying with the respondent. From these chain of events, it cannot be true that the respondent was an employee to the deceased as the appellant wants this court to believe. An employee could not be allowed to bury the employer, appear in the eulogy and obituary as a wife and finally get a permit to process the death certificate without any objection from anybody. The appellant did not controvert these evidence hence proof that for about three years before the deceased died, he had cohabited with the deceased as husband and wife hence the existence of a presumption of marriage.

40. Having held that there was a presumed marriage, does this entitle the respondent a share of the estate. Section 3 (5) of the Succession Act recognizes that a woman married to any system of marriage of which permits polygamous where the husband has contracted a previous or subsequent monogamous marriage to another woman is nevertheless a wife for purposes of the succession Act.

41. It is therefore immaterial that the appellant and the deceased had not divorced by the time the respondent started cohabiting with him. see Irene Njeri Macharia Vs Margaret Wairimu njomo and another (Supra)where the court held that, Section 3 (5) of the Law of Succession Act is meant to protect women who marry under customary law to men who are already married to or who subsequently marry another woman under statute. That the woman married under customary law is regarded as a wife for succession purposes, notwithstanding that by virtue of Section 37 of the marriage Act the man had no capacity to marry”.

42. It therefore follows that Section 3 (5) of the Law of Succession Act being the parent law supersedes Section 37 of the repealed marriage Act. To that extent, the respondent is insulated under Section 3 (5) of the Law of Succession Act hence recognized as a wife for purposes of succession regardless of the existence of the monogamous marriage between the deceased and the appellant.

Whether the respondent is a dependant to the estate

43. Having held as above, I now turn to the last issue regarding dependency. Section 29 (a) of the Law of Succession Act recognizes as dependants a wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death or not. From the wording of that provision, a wife or a child to the deceased is an automatic dependant to the deceased. See In re Estate of the late Annelies Anna Graff ( 2019) e KLRwhere the court stated that ;

“Section 29 (a) creates a special category of dependants who are dependants due to their relationship to the deceased. Here, the wife, wives, former wife or wives, and the children of the deceased are automatic dependants and it is immaterial whether or not they were being maintained by the deceased immediately prior to his death”.

44. In view of that provision, the respondent is an automatic dependant and therefore a beneficiary to the estate. However, the extent of the benefit will be determined during confirmation.

Whether the grant was properly revoked,

45. Section 76 of the Law of succession has clearly set out circumstances under which a grant can be revoked inter alia; whether the grant was obtained fraudulently or through concealment of material information from the court. In this case, the appellant failed to disclose that the respondent was adependant being a widow to the deceased and therefore a beneficiary to the estate. This conduct therefore does amount to concealment of material information. See In the matter of the estate of David Kamethu alias David Maina Kinyanjui (Deceased) Nairobi High Court P&A1301 0f 2002 where the court held that a grant is liable for revocation for failure to disclose some of the survivors of the deceased

46. Further, under Section 66 of the Law of Succession, a court has wide discretion to issue a grant but taking into account the order of preference with the spouse/s taking up the first priority. The respondent being a wife ought to have been consulted hence failure to do so in an intestate estate will render the grant invalid. In this case, there was no consent sought. Accordingly, the learned magistrate acted correctly by revoking the grant. Where there is more than one spouse, they will all be entitled to equal opportunity to first apply jointly. No one is superior than the other unless some other legal factors disqualifies one.

47. To that extent, the order to revoke the grant and issuance of a joint grant of letters of administration was appropriate. They can jointly apply for confirmation of the grant and if anyone is reluctant, the other can proceed after serving necessary notice to all beneficiaries. In a nut shell, it is my finding that the appeal lacks merit and the same is dismissed. Costs shall be in the cause.

DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 31ST DAY OF AUGUST, 2021

............................

J. N. ONYIEGO

JUDGE