(Being an Appeal from the ruling of principal Magistrate Honourable P.K. MUTAI delivered on 20.12.2023 in succession cause no E729 of 2021 at the Chief Magistrate's Court at Kisii. )
1. Everlyne Kemunto Onkoba the appellant herein being dissatisfied with the ruling of Hon . P.K. Mutai –Principal Magistrate in Kisii C .M Succession Cause no , E729 of 2021 appealed against the ruling delivered on 20th day of December, 2023 following grounds that ;
a)The trial magistrate misapprehended the evidence and law thereby making a wrong finding that the deceased had no capacity to marry the appellant on account of monogamous marriage.
b)The decision of the trial magistrate shall deny appellant and her children who are lawful dependants and beneficiaries of the deceased estate their share of the estate.
c)The trial magistrate failed to determine all issues that arose and which required determination in the matter namely;
1)who are qualified to apply for letters of administration of the estate.
2)whether appellant and her children are legitimate beneficiaries and dependants of deceased estate entitled to get shares.
3)The status of the matrimonial home where the appellant lives and lived with the deceased together with their children.
4)The prosecution of the properties of the estate pending resolution of the dispute by the court.
d)The trial magistrate did not adequately consider, analyse and make reasoned findings on the evidence and applicable law on the issues arising in the objection thereby arriving at a wrong decision which is contrary to the evidence and the applicable law.
2.The appellants prayed that this Honourable Court be pleased to allow the appeal and set aside the ruling of the lower court dated 20.12.2023 and substitute with the orders that: -
a.This appeal be allowed.
b.The trial courts ruling be set aside .
c.The appellant was lawfully married to the deceased and that he had the capacity to enter into marriage with her.
d)The appellant and respondent have equal status and capacity to be appointed joint administrators of the deceased estates.
e)The appellant and her children are lawful dependants and beneficiaries of the deceased estate just as the respondent and her children hence are entitled to get shares in the property of the estate .
f)The honourable court make a grant of letters of administration intestate jointly in favour of the appellant and respondent to administer the deceased estate.
g) The respondent do produce before court accounts concerning the deceased estate and an inventory disclosing all the property of the estate before confirmation of the grant that shall be made in respect of the estate
h)The court make such further orders it may seem fit to expedite and or facilitate sharing of properties of the estate herein amongst beneficiaries and dependants of the deceased as the court may determine.
g)costs of this appeal and the objection proceedings be borne by the respondent.
3.This is an appellate court whose duty is to re-evaluate the evidence on record and come to its own conclusion bearing in mind that it had no opportunity of seeing the witnesses during their testimony. (See Peters v Sunday Post Limited [1958] EA 424).
4.Everyne Kemunto Onkoba and CatherineKerubo Moranga petitioned the lower court In Kisii C.M succession cause No. E729 of 2021 seeking letters of administration to administer the estate of that Abel Jimmford Nyamwaya (the deceased herein ) . On 9.6.2022 they were appointed Joint administrators of the estate of the deceased and grant of letter of administration was issued to them on 23.6.22. On 2.8.22, Alice Bochere Onderi the Objector herein filed Summons for revocation of grant dated 29.7.22 , seeking revocation of the said grant on the grounds that ;
i. She is the widow of deceased having married under marriage Act ( CAP 150).
ii. the petitioners lacked capacity in law to be administrators of the estate of deceased.
iii. The grant was issued to persons without locus standi.
iv. The applicant is the only competent person to whom the grant should be issued.
v. The proceedings were obtained by misinformation, on disclosure of material facts and failure to cite the applicant to obtain the grant,
vi. the documents used to obtain the grant were forged or illegally obtained.
vii. The grant was obtained fraudulently by concealment and non disclosure of material facts .
viii.The Applicant was not aware of the Succession cause until when she was served with the application dated 12.7.2022. The application is supported by affidavit of the objector dated 29.7.22 in which she deponed that she had a civil marriage with deceased under the marriage Act (CAP 150 ) as per the marriage certificate ABO -1 . Also that she was neither notified nor cited in the successions cause That the grant was obtained by the petitioners who are mother and daughter based on untrue allegations in the Chief’s letter ABO -2 . She also deponed that the grant is get to be conformed and that she has priority to be granted the letters of administration and that the proceedings were based on misinformation, deceit ,non-disclosure of material facts and failure a forged death certificate . he annexed a copy of the application dated 12.7.22 which informed her of the cause.
5. Everlyne Kemunto Onkoba the 1st respondent herein filed replying affidavit dated 17.8.22 in which she admitted that she is a co-petitioner in the succession cause herein and that she is a widow and beneficiary being the 2nd wife of deceased. She annexed Birth cerficates of ‘’their children ‘’- Ka & Kb, Eulogy Kc, Newspater Obirtuary Kd, family Photographs Ke, Copies of proceedings of a family meeting held on 19.ju;y 2021 Kg - She said she has always wish ed that the objector be part of the succession cause herein since both a widows and have locus but she has been hesitant . She acknowledged the objector as the 1st wife to deceased and said she has no issue with her joining in as a co -administrator . She said the chief’s letter dated 26.7.2021 supports her case. Also that there minor namely Madson Suger beneficiary aged 12 years whose interests require protection.
6. The matter proceeded by way of viva voce evidence . The objector testified as PW1 and she adopted her supporting affidavit herein and the annextures . On cross examination she said 1st petitioner was not introduced to her by deceased and that she came to know of the 1st petitioner during funeral arrangements she was in hospital when she was informed that the funeral committee an passed that 1st petitioner and her children be included in the funeral and Eulogy to enable the funeral to be conducted and the her in laws insisted. She admitted that the Chief’s letter acknowledged 1st petitioner as a wife . d that she be in the programme otherwise burial would not be conducted .
7. The 1st petitioner testified as DW1 and she also adopted by replying affidavit filed herein together with the annextures. She said deceased married her in the year 1995 and paid dowry under the Gusii customary law and bought for her land in 1997 and settled her there .on cross examination she said her daughter Catherine Kerubo’s birth certificate was issued on 16.6.21 while deceased died on 20.5.21 . Further that they has a meeting in Daraja on 17.7.21 but denied that it was to legalize their union. 1st petitioner called 4 witnesses i.e Abel Moranga Nyamwaya, (DW2) James Makori (DW3) David Onyancha (DW4)Thomas Nyamwaya (Dw5). Each of them testified and adopted their respective witness statements . Dw2 and Dw3 ‘s evidence is similar in all material aspects . they said that deceased was their brother and that he has two wives i.e the Objector and 1st petitioner who both participated in his burial and that both has children . Further that he paid dowry for both of them and that upon the demise of deceased the respondent denounced the appellant . They said that both are entitled to inherit the estate of deceased on behalf of their children. On cross examination Dw2 said the meeting to acknowledge that 1st petitioner was a wife to deceased was held upon his demise Dw4 testified that he is a cousin to deceased and he supported the Evidence of 1st petitioner , Dw2 and Dw3 and said that the respondent was first acknowledged as a wife to deceased by the family of deceased in a meeting held upon his demise and hence the respondent participated in the funeral . He said that under the Kisii Customary law marriage is considered to be valid where cows and goats are taken to the bride’s family by the groom and that this was done for both wives of deceased. He however denied that the signature on the witness statement bearing his name was his . Dw5 also supported the evidence of Dw1, Dw2 and Dw3 .He said deceased settled down both his wives herein by putting up homes for them .
8. this is an appellate court and the duty of this court is to re-evaluate the entire evidence on record and arrive at it’s own determination bearing in mind that it had no opportunity to observe the demeanour of the witnesses during their testimony in the trial court. (see Mercy Kirito Mutegi v. Beatrice Nkatha Nyaga & 2 Others [2013] e KLR ).
9. I have carefully re-evaluated the entire evidence on record , the grounds of appeal and the able submissions by both parties. I find that the issues of determination are;
a) Whether the trial court erred in holding that the Appellant was not a legal wife to the deceased for purposes of succession.
b) Whether the grant was obtained fraudulently .
c) Whether the letters of administration should be jointly issued to the appellant and respondent.
10 . On whether the trial court erred in holding that the Appellant was not a wife , The evidence by appellant is that she was married by the deceased under Kisii Customary law while the respondent says that he is the only wife of deceased as deceased had no capacity to enter into a polygamous marriage as he was already married to her under the marriage ACT CAP 150 . The evidence by the appellant was supported by Dw1, Dw2, Dw3, Dw5. Dw4 denied that he recorded a statement which he relied on and so the credibility of his evidence is in doubt . It is admitted by the respondent that the appellant participated in the funeral and the letter from the chief also supports her contention that she was a second wife to deceased . In the case of Nyaga v Mbogo & another (Civil Appeal 37 of 2020) [2023] KEHC 20901 (KLR) (26 July 2023) (Judgment) faced with similar facts made reference to section 3(5) of the Law of Succession Act which provides that notwithstanding the provisions of any other written law, a woman married under a system of law which permits polygamy is, wherever 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 with the meaning of this act.
11.The rationale for the enactment of Section 3 (5) and application of the Law of Succession Act was well stated by the Court of Appeal in MNM v DNMK & 13 others (2017) eKLR.
‘’The Section was introduced in 1981 by the Statute Law (Repeals & Miscellaneous Amendments) Act, No 10 of 1981. The purpose of the amendment was to mitigate the rigours of decisions such as Re Ruenji’s Estate and Re Ogola’s Estate, which did not recognize as beneficiaries widows and children born from a union of a man already married under statute and marries another woman during the subsistence of the statutory marriage . To the extent that a marriage arising from a presumption of marriage that is potentially polygamous, the prior monogamous marriage of the deceased to M would not preclude E from being recognized as a beneficiary of the deceased. See Irene Njeri Macharia v M Wairimu Njomo & another, CA No 139 of 1994 Miriam Njoki Muturi v Bilha Wahito Muturi, CA No 168 of 2009 and Muigai v Muigai & another) 1985 – 1998) I EA 206.’’
12. In this instant case in as much as the respondent claimed that she was in a monogamous marriage and produced a marriage certificate issued to her in 2003 as prove and contested that the appellant was a wife , The evidence of the appellant that deceased married her as a second wife under the Kisii Customary law and they commenced cohabitation in the year 1998 and dowry was paid . This was corroborated by that of the chief’s letter, Dw2,Dw3 . .In the case Hortensia Wanjiku Yawe v. The Public Trustee Nairobi [1976] eKLR the court held that long cohabitation and general repute will give rise to a rebuttable presumption that marriage exists between a man and a woman. The law has since developed in the area of presumption of marriage and the current position is that long cohabitation does not necessarily create the presumption of a marriage as was held by the Supreme Court of Kenya in the case of Mary Nyambura Kangara versus Paul Ogari Mayaka (2023) eKLR. In the said case the Supreme Court in the Kangara versus Mayaka (Supra) set out conditions that must be met to presume existence of a marriage relationship as follows:
a.The parties must have lived together for a long period of time.
b.The parties must have the legal capacity to marry.
c.The parties must have intended to marry.
d.There must be consent by both parties.
e.The parties must have held themselves out to the outside world as being a married couple.
f.The onus of proving the presumption is on the party who alleges it.
g.The evidence to rebut the presumption has to be strong, distinct, satisfactory and conclusive.
h.The standard of proof is on a balance of probability.
13. The evidence of the appellant on cohabitation was supported by Dw2, Dw3, Dw5 who were firm that appellant cohabited with deceased and he settled her at Kegati .This evidence was not displaced . I find that the deceased and the appellant lived together as husband and wife since 1998 till his demise at where he set up a home for her at Kegati , they had capacity to marry, intended to marry and consented to it . The deceased and appellant also held themselves in public as a couple and this was observed by the area chief , Dw2,Dw3, and Dw5 . It is clear that the appellant proved beyond a balance of probability that she had a long cohabitation with deceased .’ Professor Tom Ojienda and Lady Justice (Doctor) Freda Mugambi in their Article - The case of the other woman : Section 3 (5) of the law of Succession Act (LSK Journal 2006 ) Revisited stated that ‘’ Conclusively , it is clear that polygamy was initially illegitimate , atleast when it came to succession . However due to the harsh m unfair and unjust effect on the women married under circumstances akin to those of the women Re Ruenji ‘’ Re Ogolla’’, parliament ended up legitimizing polygamy atleast in so far as succession is concerned ‘’. Considering the circumstances of this case and Section 3 (5) of the Lw of succession Act, this court can therefore safely presumes that appellant was the deceased’s ‘’other woman ‘’. It therefore goes without saying that the trial court made error of law and fact by holding that the deceased had no capacity to remarry unle4ss the civil marriage was dissolved .
14. On whether the grant was obtained fraudulently , the respondent in her summons for revocation accused appellant of obtaining the grant by failure to disclose material facts and based on misinformation. The respondent argued that she ought to have been cited to participate in the proceedings . Section 66 of the law of succession act provides for the order of preference in issuance of the letters of administration. It states that:
66. Preference to be given to certain persons to administer where deceased died intestate-
When a deceased has died intestate, the court shall, save as otherwise expressly provided, have a final discretion as to the person or persons to whom a grant of letters of administration shall, in the best interests of all concerned, be made, but shall, without prejudice to that discretion, accept as a general guide the following order of preference—
(a)surviving spouse or spouses, with or without association of other beneficiaries;
(b)other beneficiaries entitled on intestacy, with priority according to their respective beneficial interests as provided by Part V;
15. The Act mentions the spouse or spouses as the first people that can be issued with a grant of the letters of administration. In this case, having determined that both the appellant is the ‘’other woman ‘’ and respondent was the wife of the deceased, they rank equally under Section 66 (1) of the Act. Though the appellant listed respondent and her children in form P& A 5 , there is no evidence that they were cited to accept or refuse granting of letter of administration to the appellant . In her replying affidavit the appellant conceded and said she had no objection for respondent to be added as an administrator . There is also the issue of Catherine Kerubo Moranga who is described herein as a daughter of deceased . She did not file any response to the summons for revocation and I find that she does not rank equally with the Appellant and respondent . . The Learned Trial Magistrate did not err in revoking the grant as it was obtained fraudulently .
16. On whether the appellant and respondent should be jointly issued with a grant of letters of administration since I have already held that the appellant and respondent rank equally on the issue of administration and I have seen the case of Re Estate of Eliud Kiarie Mutembei (Deceased) [2022] KEHC 1777 (KLR), where the learned Judge held that having found out that the deceased was a polygamist and had three wives, he appointed representatives from each house as an administrator of the estate of the deceased, i proceed to appoint both the appellant and the respondent as administrators of the estate of deceased herein.
17. In the upshot I proceed to allow the Appeal on the following terms :
1. The appellant is the ‘’other woman ‘’ of the deceased under Section 3 (5 ) of the Law of Succession Act .
2. The Appellant obtained the grant fraudulently by failing to involve the respondent and thus the . grant was rightly revoked by the learned Trial Magistrate .
3. The appellant and the respondent are hereby appointed as joint administrators of the estate of deceased herein .
4. A fresh grant of letters of administration to re-issue in the joint names of the joint administrators .
.
5. Summons for confirmation of grant be filed within 60 days from today .
6. Mention on 31.7.25 before the Kisii Chief Magistrate for further orders .
7. Each party to bear his own costs .
1. Everlyne Kemunto Onkoba the appellant herein being dissatisfied with the ruling of Hon . P.K. Mutai –Principal Magistrate in Kisii C .M Succession Cause no , E729 of 2021 appealed against the ruling delivered on 20th day of December, 2023 following grounds that ;
a)The trial magistrate misapprehended the evidence and law thereby making a wrong finding that the deceased had no capacity to marry the appellant on account of monogamous marriage.
b)The decision of the trial magistrate shall deny appellant and her children who are lawful dependants and beneficiaries of the deceased estate their share of the estate.
c)The trial magistrate failed to determine all issues that arose and which required determination in the matter namely;
1)who are qualified to apply for letters of administration of the estate.
2)whether appellant and her children are legitimate beneficiaries and dependants of deceased estate entitled to get shares.
3)The status of the matrimonial home where the appellant lives and lived with the deceased together with their children.
4)The prosecution of the properties of the estate pending resolution of the dispute by the court.
d)The trial magistrate did not adequately consider, analyse and make reasoned findings on the evidence and applicable law on the issues arising in the objection thereby arriving at a wrong decision which is contrary to the evidence and the applicable law.
2.The appellants prayed that this Honourable Court be pleased to allow the appeal and set aside the ruling of the lower court dated 20.12.2023 and substitute with the orders that: -
a.This appeal be allowed.
b.The trial courts ruling be set aside .
c.The appellant was lawfully married to the deceased and that he had the capacity to enter into marriage with her.
d)The appellant and respondent have equal status and capacity to be appointed joint administrators of the deceased estates.
e)The appellant and her children are lawful dependants and beneficiaries of the deceased estate just as the respondent and her children hence are entitled to get shares in the property of the estate .
f)The honourable court make a grant of letters of administration intestate jointly in favour of the appellant and respondent to administer the deceased estate.
g) The respondent do produce before court accounts concerning the deceased estate and an inventory disclosing all the property of the estate before confirmation of the grant that shall be made in respect of the estate
h)The court make such further orders it may seem fit to expedite and or facilitate sharing of properties of the estate herein amongst beneficiaries and dependants of the deceased as the court may determine.
g)costs of this appeal and the objection proceedings be borne by the respondent.
3.This is an appellate court whose duty is to re-evaluate the evidence on record and come to its own conclusion bearing in mind that it had no opportunity of seeing the witnesses during their testimony. (See Peters v Sunday Post Limited [1958] EA 424).
4.Everyne Kemunto Onkoba and CatherineKerubo Moranga petitioned the lower court In Kisii C.M succession cause No. E729 of 2021 seeking letters of administration to administer the estate of that Abel Jimmford Nyamwaya (the deceased herein ) . On 9.6.2022 they were appointed Joint administrators of the estate of the deceased and grant of letter of administration was issued to them on 23.6.22. On 2.8.22, Alice Bochere Onderi the Objector herein filed Summons for revocation of grant dated 29.7.22 , seeking revocation of the said grant on the grounds that ;
i. She is the widow of deceased having married under marriage Act ( CAP 150).
ii. the petitioners lacked capacity in law to be administrators of the estate of deceased.
iii. The grant was issued to persons without locus standi.
iv. The applicant is the only competent person to whom the grant should be issued.
v. The proceedings were obtained by misinformation, on disclosure of material facts and failure to cite the applicant to obtain the grant,
vi. the documents used to obtain the grant were forged or illegally obtained.
vii. The grant was obtained fraudulently by concealment and non disclosure of material facts .
viii.The Applicant was not aware of the Succession cause until when she was served with the application dated 12.7.2022. The application is supported by affidavit of the objector dated 29.7.22 in which she deponed that she had a civil marriage with deceased under the marriage Act (CAP 150 ) as per the marriage certificate ABO -1 . Also that she was neither notified nor cited in the successions cause That the grant was obtained by the petitioners who are mother and daughter based on untrue allegations in the Chief’s letter ABO -2 . She also deponed that the grant is get to be conformed and that she has priority to be granted the letters of administration and that the proceedings were based on misinformation, deceit ,non-disclosure of material facts and failure a forged death certificate . he annexed a copy of the application dated 12.7.22 which informed her of the cause.
5. Everlyne Kemunto Onkoba the 1st respondent herein filed replying affidavit dated 17.8.22 in which she admitted that she is a co-petitioner in the succession cause herein and that she is a widow and beneficiary being the 2nd wife of deceased. She annexed Birth cerficates of ‘’their children ‘’- Ka & Kb, Eulogy Kc, Newspater Obirtuary Kd, family Photographs Ke, Copies of proceedings of a family meeting held on 19.ju;y 2021 Kg - She said she has always wish ed that the objector be part of the succession cause herein since both a widows and have locus but she has been hesitant . She acknowledged the objector as the 1st wife to deceased and said she has no issue with her joining in as a co -administrator . She said the chief’s letter dated 26.7.2021 supports her case. Also that there minor namely Madson Suger beneficiary aged 12 years whose interests require protection.
6. The matter proceeded by way of viva voce evidence . The objector testified as PW1 and she adopted her supporting affidavit herein and the annextures . On cross examination she said 1st petitioner was not introduced to her by deceased and that she came to know of the 1st petitioner during funeral arrangements she was in hospital when she was informed that the funeral committee an passed that 1st petitioner and her children be included in the funeral and Eulogy to enable the funeral to be conducted and the her in laws insisted. She admitted that the Chief’s letter acknowledged 1st petitioner as a wife . d that she be in the programme otherwise burial would not be conducted .
7. The 1st petitioner testified as DW1 and she also adopted by replying affidavit filed herein together with the annextures. She said deceased married her in the year 1995 and paid dowry under the Gusii customary law and bought for her land in 1997 and settled her there .on cross examination she said her daughter Catherine Kerubo’s birth certificate was issued on 16.6.21 while deceased died on 20.5.21 . Further that they has a meeting in Daraja on 17.7.21 but denied that it was to legalize their union. 1st petitioner called 4 witnesses i.e Abel Moranga Nyamwaya, (DW2) James Makori (DW3) David Onyancha (DW4)Thomas Nyamwaya (Dw5). Each of them testified and adopted their respective witness statements . Dw2 and Dw3 ‘s evidence is similar in all material aspects . they said that deceased was their brother and that he has two wives i.e the Objector and 1st petitioner who both participated in his burial and that both has children . Further that he paid dowry for both of them and that upon the demise of deceased the respondent denounced the appellant . They said that both are entitled to inherit the estate of deceased on behalf of their children. On cross examination Dw2 said the meeting to acknowledge that 1st petitioner was a wife to deceased was held upon his demise Dw4 testified that he is a cousin to deceased and he supported the Evidence of 1st petitioner , Dw2 and Dw3 and said that the respondent was first acknowledged as a wife to deceased by the family of deceased in a meeting held upon his demise and hence the respondent participated in the funeral . He said that under the Kisii Customary law marriage is considered to be valid where cows and goats are taken to the bride’s family by the groom and that this was done for both wives of deceased. He however denied that the signature on the witness statement bearing his name was his . Dw5 also supported the evidence of Dw1, Dw2 and Dw3 .He said deceased settled down both his wives herein by putting up homes for them .
8. this is an appellate court and the duty of this court is to re-evaluate the entire evidence on record and arrive at it’s own determination bearing in mind that it had no opportunity to observe the demeanour of the witnesses during their testimony in the trial court. (see Mercy Kirito Mutegi v. Beatrice Nkatha Nyaga & 2 Others [2013] e KLR ).
9. I have carefully re-evaluated the entire evidence on record , the grounds of appeal and the able submissions by both parties. I find that the issues of determination are;
a) Whether the trial court erred in holding that the Appellant was not a legal wife to the deceased for purposes of succession.
b) Whether the grant was obtained fraudulently .
c) Whether the letters of administration should be jointly issued to the appellant and respondent.
10 . On whether the trial court erred in holding that the Appellant was not a wife , The evidence by appellant is that she was married by the deceased under Kisii Customary law while the respondent says that he is the only wife of deceased as deceased had no capacity to enter into a polygamous marriage as he was already married to her under the marriage ACT CAP 150 . The evidence by the appellant was supported by Dw1, Dw2, Dw3, Dw5. Dw4 denied that he recorded a statement which he relied on and so the credibility of his evidence is in doubt . It is admitted by the respondent that the appellant participated in the funeral and the letter from the chief also supports her contention that she was a second wife to deceased . In the case of Nyaga v Mbogo & another (Civil Appeal 37 of 2020) [2023] KEHC 20901 (KLR) (26 July 2023) (Judgment) faced with similar facts made reference to section 3(5) of the Law of Succession Act which provides that notwithstanding the provisions of any other written law, a woman married under a system of law which permits polygamy is, wherever 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 with the meaning of this act.
11.The rationale for the enactment of Section 3 (5) and application of the Law of Succession Act was well stated by the Court of Appeal in MNM v DNMK & 13 others (2017) eKLR.
‘’The Section was introduced in 1981 by the Statute Law (Repeals & Miscellaneous Amendments) Act, No 10 of 1981. The purpose of the amendment was to mitigate the rigours of decisions such as Re Ruenji’s Estate and Re Ogola’s Estate, which did not recognize as beneficiaries widows and children born from a union of a man already married under statute and marries another woman during the subsistence of the statutory marriage . To the extent that a marriage arising from a presumption of marriage that is potentially polygamous, the prior monogamous marriage of the deceased to M would not preclude E from being recognized as a beneficiary of the deceased. See Irene Njeri Macharia v M Wairimu Njomo & another, CA No 139 of 1994 Miriam Njoki Muturi v Bilha Wahito Muturi, CA No 168 of 2009 and Muigai v Muigai & another) 1985 – 1998) I EA 206.’’
12. In this instant case in as much as the respondent claimed that she was in a monogamous marriage and produced a marriage certificate issued to her in 2003 as prove and contested that the appellant was a wife , The evidence of the appellant that deceased married her as a second wife under the Kisii Customary law and they commenced cohabitation in the year 1998 and dowry was paid . This was corroborated by that of the chief’s letter, Dw2,Dw3 . .In the case Hortensia Wanjiku Yawe v. The Public Trustee Nairobi [1976] eKLR the court held that long cohabitation and general repute will give rise to a rebuttable presumption that marriage exists between a man and a woman. The law has since developed in the area of presumption of marriage and the current position is that long cohabitation does not necessarily create the presumption of a marriage as was held by the Supreme Court of Kenya in the case of Mary Nyambura Kangara versus Paul Ogari Mayaka (2023) eKLR. In the said case the Supreme Court in the Kangara versus Mayaka (Supra) set out conditions that must be met to presume existence of a marriage relationship as follows:
a.The parties must have lived together for a long period of time.
b.The parties must have the legal capacity to marry.
c.The parties must have intended to marry.
d.There must be consent by both parties.
e.The parties must have held themselves out to the outside world as being a married couple.
f.The onus of proving the presumption is on the party who alleges it.
g.The evidence to rebut the presumption has to be strong, distinct, satisfactory and conclusive.
h.The standard of proof is on a balance of probability.
13. The evidence of the appellant on cohabitation was supported by Dw2, Dw3, Dw5 who were firm that appellant cohabited with deceased and he settled her at Kegati .This evidence was not displaced . I find that the deceased and the appellant lived together as husband and wife since 1998 till his demise at where he set up a home for her at Kegati , they had capacity to marry, intended to marry and consented to it . The deceased and appellant also held themselves in public as a couple and this was observed by the area chief , Dw2,Dw3, and Dw5 . It is clear that the appellant proved beyond a balance of probability that she had a long cohabitation with deceased .’ Professor Tom Ojienda and Lady Justice (Doctor) Freda Mugambi in their Article - The case of the other woman : Section 3 (5) of the law of Succession Act (LSK Journal 2006 ) Revisited stated that ‘’ Conclusively , it is clear that polygamy was initially illegitimate , atleast when it came to succession . However due to the harsh m unfair and unjust effect on the women married under circumstances akin to those of the women Re Ruenji ‘’ Re Ogolla’’, parliament ended up legitimizing polygamy atleast in so far as succession is concerned ‘’. Considering the circumstances of this case and Section 3 (5) of the Lw of succession Act, this court can therefore safely presumes that appellant was the deceased’s ‘’other woman ‘’. It therefore goes without saying that the trial court made error of law and fact by holding that the deceased had no capacity to remarry unle4ss the civil marriage was dissolved .
14. On whether the grant was obtained fraudulently , the respondent in her summons for revocation accused appellant of obtaining the grant by failure to disclose material facts and based on misinformation. The respondent argued that she ought to have been cited to participate in the proceedings . Section 66 of the law of succession act provides for the order of preference in issuance of the letters of administration. It states that:
66. Preference to be given to certain persons to administer where deceased died intestate-
When a deceased has died intestate, the court shall, save as otherwise expressly provided, have a final discretion as to the person or persons to whom a grant of letters of administration shall, in the best interests of all concerned, be made, but shall, without prejudice to that discretion, accept as a general guide the following order of preference—
(a)surviving spouse or spouses, with or without association of other beneficiaries;
(b)other beneficiaries entitled on intestacy, with priority according to their respective beneficial interests as provided by Part V;
15. The Act mentions the spouse or spouses as the first people that can be issued with a grant of the letters of administration. In this case, having determined that both the appellant is the ‘’other woman ‘’ and respondent was the wife of the deceased, they rank equally under Section 66 (1) of the Act. Though the appellant listed respondent and her children in form P& A 5 , there is no evidence that they were cited to accept or refuse granting of letter of administration to the appellant . In her replying affidavit the appellant conceded and said she had no objection for respondent to be added as an administrator . There is also the issue of Catherine Kerubo Moranga who is described herein as a daughter of deceased . She did not file any response to the summons for revocation and I find that she does not rank equally with the Appellant and respondent . . The Learned Trial Magistrate did not err in revoking the grant as it was obtained fraudulently .
16. On whether the appellant and respondent should be jointly issued with a grant of letters of administration since I have already held that the appellant and respondent rank equally on the issue of administration and I have seen the case of Re Estate of Eliud Kiarie Mutembei (Deceased) [2022] KEHC 1777 (KLR), where the learned Judge held that having found out that the deceased was a polygamist and had three wives, he appointed representatives from each house as an administrator of the estate of the deceased, i proceed to appoint both the appellant and the respondent as administrators of the estate of deceased herein.
17. In the upshot I proceed to allow the Appeal on the following terms :
1. The appellant is the ‘’other woman ‘’ of the deceased under Section 3 (5 ) of the Law of Succession Act .
2. The Appellant obtained the grant fraudulently by failing to involve the respondent and thus the . grant was rightly revoked by the learned Trial Magistrate .
3. The appellant and the respondent are hereby appointed as joint administrators of the estate of deceased herein .
4. A fresh grant of letters of administration to re-issue in the joint names of the joint administrators .
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5. Summons for confirmation of grant be filed within 60 days from today .
6. Mention on 31.7.25 before the Kisii Chief Magistrate for further orders .
7. Each party to bear his own costs .