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INTRODUCTION
There are multiple summons for confirmation of grant filed in this cause, to be precise 4. The first is dated 1 st November 2019 and is presented by Ziborah Tanui (formerly 3 rd Administrator, now deceased). The 2 nd is dated 21 st November 2019 and is presented by the 1 st and 2 nd Administrators, Irene Wangare Njoroge and Derrick Kipchumba Keney. The 3 rd is dated 16 th November 2022 and is presented by Esther Cherotich Tanui 3 rd Administrator (By virtue of Grant of Letters of Administration that issued on 25 th July 2022 revoking the earlier grant issued on 24 th September 2019, following the death of Ziborah Tanui and her substitution by Esther Chebet Tanui). The 4 th is dated 10 th May 2024 and is presented by the 1 st and 2 nd Administrators.
By directions issued on 25 th July 2023, I directed that the summons that would proceed to hearing is that dated 21 st November 2019 and the summons dated 16 th November 2022 would be deemed as the response to that summons, therefore the protest. Leave was granted to the 1 st and 2 nd Administrator to file their response to the protest and directions given that the matter proceeds by way of viva voce evidence. The Summons dated 10 th May 2024 is therefore otiose it does not comply with the provisions of Section 71 of the Law of Succession Act and it was filed without leave of the Court. The same is therefore struck off the record.
The 1 st and 2 nd Administrator have also filed affidavit of protest dated 10 th May 2024, the same is lodged on the CTS on 9 th October 2025 after conclusion of the trial and without leave of the Court, I strike the same off the court record.
The 3 rd Administrator filed affidavit sworn on 16 th September 2024. In support of her summons dated 16 th November 2022. On 4 th February 2025, I ruled that the same was properly filed.
In summons dated 21 st November 2019, the 1 st and 2 nd Administrator state that the deceased was survived by the following beneficiaries-
Irene Wangari Njoroge Wife
Kimberly Chepkemboi Daughter
Bradley Kimutai Keney Son
Derrick Kipchumba Keney Son
They propose that the Estate of the deceased be distributed as hereunder-
Motor Vehicle Registration Number KAX 617 G to Derrick Kipchumba Keney
Motor Vehicle Registration Number KCH 528 W to Irene Wangari Njoroge
11% Share held in Eagle Investment Company Limited to Irene Wangari Njoroge
2 Shares in Kibagenge Investment Company Limited to Derrick Kipchumba Keney
Group Life Insurance from Kenya Pipeline Company Limited to be shared between Irene Wangari Njoroge, Kimberly Chepkemboi, Bradley Kimutai Keney and Derrick Kipchumba Keney in agreed portions.
LR No. Nakuru Lengenet/ 949 measuring 0.90 Hectares shall be transferred to Irene Wangari Njoroge to hold in trust for Kimberly Chepkemboi and Bradley Kimutai Keney
Money in A/C Number 05601919289332 with Equity Bank Limited to be transferred to Ziborah Jepkorir Tanui
Money in A/C Number 011002732900 with Co-operative Bank Limited to be transferred to Ziborah Jepkorir Tanui
Money in A/C Number 0100173475400 with Standard Chartered Bank Limited to be transferred to Ziborah Jepkorir Tanui
LR 792/4/1 measuring approximately 100 acres in Sugoi, Eldoret; 2 Hectares to Ziborah Jepkorir Tanui to hold a life interest; rest to be shared equally amongst Kimberly Chepkemboi (minor)Bradley Kimutai ( minor) and Derrick Kipchumba Keney with Irene Wangari Njoroge holding in Trust of the minors.
Land in Maili Tisa measuring approximately 5 acres; to be shared equally amongst Kimberly Chepkemboi (minor)Bradley Kimutai ( minor) and Derrick Kipchumba Keney with Irene Wangari Njoroge holding in Trust of the minors.
On her part the 3 rd Administrator avers that the deceased was survived by the beneficiaries
Esther Cherotich Tanui- Sister
Rebecca Chebet Kibet- Sister
Elizabeth Jeptoo Tanui- Sister
Rael Tanui- Sister
Patroba Tanui- Sister
Kimberly Chepkemboi Keney- Daughter
Bradley Kimutai Keney- Son
It is proposed that the Estate of the be distributed as follows-
Motor Vehicle Registration Number KAX 617 G to Esther Cherotich tanui
Motor Vehicle Registration Number KCH 528 W to be disposed and the proceeds utilisd towards the education of Kimberly Chepkemboi and Bradley Kimutai
11% Share held in Eagle Investment Company Limited to be held by Esther Cherotich Tunai in trust of Kimberly Chepkemboi and Bradley Kimutai
2 Shares in Kibagenge Investement Company Limited to be held by Esther Cherotich Tunai in trust of Kimberly Chepkemboi and Bradley Kimutai
Group Life Insurance from Kenya Pipeline Company Limited to be held by Esther Cherotich Tunai in trust of Kimberly Chepkemboi and Bradley Kimutai
LR No. Nakuru Lengenet/ 949 measuring 0.90 Hectares shall be transferred to be held by Esther Cherotich Tunai in trust of Kimberly Chepkemboi and Bradley Kimutai
Money in A/C Number 05601919289332 with Equity Bank Limited to be shared equally between Rebecca Tanui, Elizabeth Tanui, Rael Tanui, Patroba Tanui, Esther Tanui, Kimberly Kenei and Bradley Kenei Money in A/C Number 011002732900 with Co-operative Bank Limited to be transferred to be shared equally Rebecca Tanui, Elizabeth Tanui, Rael Tanui, Patroba Tanui, Esther Tanui, Kimberly Kenei and Bradley Kenei
Money in A/C Number 0100173475400 with Standard Chartered Bank Limited to be shared equally between Rebecca Tanui, Elizabeth Tanui, Rael Tanui, Patroba Tanui, Esther Tanui, Kimberly Kenei and Bradley Kenei
RBA Pension Benefits to be shared equally between Rebecca Tanui, Elizabeth Tanui, Rael Tanui, Patroba Tanui, Esther Tanui, Kimberly Kenei and Bradley Kenei
Shares held at Kenpipe Sacco to be shared equally between Rebecca Tanui, Elizabeth Tanui, Rael Tanui, Patroba Tanui, Esther Tanui, Kimberly Kenei and Bradley Kenei
The summons was canvassed by way of viva voce evidence.
SUMMARY OF EVIDENCE
PW1, Esther Cherotich Tanui (the 3 rd administrator) relied on her affidavits sworn on 16 th September 2024, 30 th September 2022 and 16 th November 2022. She denied that the 1 st administrator is a wife of the deceased. The marriage was not formalized. Their late mother did not recognize her as a wife of the deceased. Her conduct was not as would be expected of a spouse. She cut off communication with the family after the deceased’s burial. There was no ceremony to formalize the marriage. The 1 st administrator was a girlfriend to the deceased. She admits that the Ist Administrator had two children with the deceased and she has made provision for them in her proposal on the mode of distribution.
The 1 st Administrator has received the deceased’s benefits and utilized them and has failed to account for the money so received. This renders her unsuitable to be appointed administrator.
She denies that the 2 nd Administrator is a son of the deceased. He first showed up at the burial of the deceased. The deceased never introduced him as a son. He was not known to the family prior to the death of the deceased.
Both Property known as LR No. 792/4/1 and LR Number 5376/5 do not form part of the estate of the deceased. The former belongs to their late father, Enos Kipkenei Tanui. And the latter to her sister Rebecca Tanui. She proposes that motor vehicle registration number KAX 617 G should be allocated to her. The vehicle was being used by their late mother when she was alive.
On cross-examination, she stated that the deceased, Rebecca, Elizabeth, Rael and Patroba are her siblings. The deceased’s children are Kimberly and Bradley. She disagrees with the chief’s letter dated 20 th September 2017 showing that Derrick was the deceased’s son. She also disagrees with the Birth Certificate indicating that the deceased was Derrick’s father. The deceased never introduced Derrick when he was alive. The obituary was prepared by the funeral committee. The obituary was prepared by Kenya Pipeline. The obituary at paragraph three states that Irene was a wife of the deceased. it also recognized Derrick, Kimberly and Bradley as the deceased’s children. Irene received pension because of the children. According to her, Rebecca and Elizabeth were nominated as beneficiaries with Kenya Pipeline Company for Group Life Insurance. She does not have proof of the same. KAX 617 G is registered in the deceased’s name. They are seeking a share of the deceased’s estate on behalf of their mother who should have benefited but died.
In re-examination, she stated that if their mother was alive, they would not have sought to benefit from the estate. The deceased resided in Kisumu. His rural home was Turbo. The chief’s letter indicates he resided in Mugumoini. The deceased did not have a relationship with Derrick.
RW1, Irene Wangari Njoroge Her evidence was that she is the deceased’s wife. They cohabited for several year and formalized their marriage in 2010 under Customary Law. They lived at Kenya Pipeline Estate from 2000-2012 when he was transferred to Kisumu. She then moved to Langata. The deceased used to visit every weekend. She acquired the chief’s letter from Langata. She used to visit Sugoi with the deceased and the children. She is mentioned as the deceased’s wife in the obituary which was prepared by the funeral committee. She received pension from the deceased’s employer.
She has not been asked to give accounts of the money paid to her, she is willing to give the same. She has not pursued the deceased’s benefits in Group Life Insurance. The deceased’s employer is awaiting the outcome of this case. She has not visited the deceased’s home after the burial because Esther and Patroba were hostile to her. The deceased’s family does not have a relationship with her children. She asked the court to recognize her as the deceased’s wife and adequate provision be made for her children.
On cross- examination, she stated that she received Kshs. 75,000 as pension. Derrick gets Kshs. 25,000 per month while she receives Kshs. 52,000 per month. Her expenses exceed the pension and her salary. She is best suited to hold in trust the interests of the minors. The deceased introduced himself in 2010 at her home in Nakuru. It was in 2007 when they visited her home in Nakuru. Her son was one year old. She was introduced to the deceased’s employer through a marriage affidavit in March 2007. She has not called a witness to support her claim. She used the benevolent fund to buy the children clothes herself and her mother in law. The deceased’s family did not involve her in the funeral arrangements. She was with the deceased in hospital when he was critically ill. The chief’s letter from Turbo recognizes the deceased’s mother as a beneficiary. She got another letter which did not recognize her. She had not met Derrick before the deceased’s death. She has received Kshs. 3.5 million from KPC. She is not okay if Ziborah and her children are included as beneficiaries of the deceased’s estate.
According to her, she believed that LR No. 792/4/1 belonged to her late husband. LR Number 5376/5 belongs to Rebecca. She is in possession of motor vehicle registration number KCH 528 W. She proposes that KAX 617 G should be allocated to Derrick. Ziborah used it when going for her medical checkups. She proposes that her children get the Life Policy Payment. She does not know who was nominated to receive Group Life Insurance.
In re-examination , she stated that payments to Derrick stopped when he turned 21. She was at the deceased’s bedside when he died. The land is registered in the name of the deceased’s father. KAX 617 G is registered in the deceased’s name.
RW2, Derrick Kipchumbe Keney. His evidence was that the deceased was his father. The birth certificate before court indicates that the deceased was his father. The authenticity of the birth certificate has not been challenged.
On cross-examination, he stated that he did not live with the deceased but the deceased paid his school fees. He also bought him a phone and a bicycle. The deceased’s mother knew him. His aunt, Elizabeth introduced him to the deceased’s mother. He did not interact with the other members because they were out of the country.
In re-examination , he stated that the deceased’s ancestral home is in Sugoi. He attended the memorial service of the deceased. the deceased’s entire family was present. The visit was pleasant.
In compliance with the Court’s directions both parties have filed submissions; The 1 st and 2 nd administrator’s submissions are dated 1 st October 2025 and those of the 3 rd administrator (protestor) are dated 1 st November 2025
PROTESTOR’S SUBMISSIONS.
Citing the provisions of Section 3 of the Law of Succession Act and Section 2 of the Marriage Act and the decision of In Re the Estate of T K G (Deceased) [2014] KEHC 8263 (KLR) , the applicant submitted that the 1 st administrator does not fall within the definition of a wife or a spouse of the deceased. Relying on the decision of SAN v GW [2020] eKLR. It is her submission that customary marriage between the applicant and the deceased has not been proved by bringing an independent witness to testify that there was a customary marriage.
Relying on the decision of SWM v PM & another [2023] KEHC 20623 (KLR), Eva Naima Kaaka & Stella Seiyan Kaaka v Tabitha Waithera Mararo [2018] KECA 762 (KLR) , Zipporah Wairimu V. Paul Mucheru, H.C.C.C. No. 1280 of 1970 (unreported), Kimani Gituanja vs Jane Njoki Gituanja [1983] eKLR the protestor submits that there was no evidence of Kikuyu Customary marriage which includes the slaughtering of a ram. There was no evidence or photos that indeed the customary marriage was performed. It was her submission that if indeed there was a marriage, it would have been conducted under Nandi Customary Law and not Kikuyu Customary Law.
On the allegation that there was presumption of marriage, the applicant submitted that the same had not been proved as required by law. She sought reliance on the decisions of PKE v SNM (Civil Appeal E003 of 2021) [2023] KEHC 17683 (KLR), Philis Njoki Karanja & 2 Others –v- Rosemary Mueni Karanja & Another NRB CA Civil Appeal No 313/2001 (2009) eKLR , Joseis Wanjiru v Kabui Ndegwa Kabui & another [2014] KECA 609 (KLR) and Hottensiah Wanjiku Yawe v Public Trustee [1976] KECA 1 (KLR). It was her submission that the 1 st administrator had not proved that she was the deceased’s wife.
On whether the 2 nd Administrator, Derrick Kenney, is a beneficiary to the Estate of the Deceased, it was the protestor’s submission that he was not the deceased’s son. This was confirmed by the 1 st administrator who told the court that she only saw him after the deceased died. That the late Ziborah also denied that he was the deceased’s son and that he confirmed that he did not have any interaction with her.
The Applicant submitted that Land Reference Number 792/4/1 Eldoret Sugoi and Chemalal Farm(Chepkoilel) and the Portion of LR 5376/5 ( Maili Tisa) belong to their late father and her sister Rebecca respectively and therefore, it does not form part of the deceased’s estate. Proof that the property belongs to the deceased has not been presented by the 1 st and 2 nd administrators.
On whether the late Ziborah Jepkorir Tanui is a beneficiary of the deceased’s estate, it was her submission that the affidavits on record show that she was a dependant of the deceased when she was still alive. The vehicle that was used by her was in her possession even after the deceased died. She argued that she is seeking a share on behalf of their late mother.
On how the estate should be distributed, the applicant they asked the court to use its discretion under Section 28 of the Law of Succession Act and distribute the estate. They asked the court to allow the children of the late Ziborah to maintain motor vehicle registration number KAX 617 G; motor vehicle registration number KCH 528W and all the other assets be distributed to Kimberly Chepkemboi and Bradley Kipruto and be held in trust for them. That the retirement and or insurance proceeds held with the Deceased’s former employer in which he nominated his sisters as beneficiaries and the proceeds should go to them.
Lastly, it was her submission that the 3rd Administrator be allowed to hold in trust jointly with the 1st Administrator the estate as distributed to the two minors. She accused the 3 rd administrator of failing to account for the sums she has received from the deceased’s employer.
RESPONDENTS SUBMISSIONS.
The Respondents framed the following as issues to be determined by the court;
Whether Irene Wangare Njoroge was the lawful spouse of the deceased.
Whether Derrick Kipchumba Keney is a lawful beneficiary of the estate.
Whether the Respondent, Esther Cherotich Tanui, and other siblings of the deceased are entitled to inherit.
>< style="text-align: justify;">On the first issue, it was their submission that the 1 st Respondent was a wife to the deceased. That she was recognised in the deceased’s obituary and funeral programme and even sired two children with the deceased. She lived with the deceased and was recognised as the deceased’s wife in the chief’s letter. according to them, presumption of marriage arose in this situation. Reliance was placed on the decisions of Hortensia Wanjiku Yawe v The Public Trustee Nairobi [1976] eKLR, Phylis Njoki Karanja & 2 others v Rosemary Mueni Karanja & another [2009] eKLR, Mary Wanjiku Githatu v Esther Wanjiru Kiarie [2010] eKLR, MNK v POM and Initiative for Strategic Litigation in Africa (ISLA) (Amicus Curiae) [2023] KESC 2 (KLR)
On the second issue, it was their submission that Derrick falls within the definition of a beneficiary under Section 29 of the Law of Succession. Relying on the decision of In re Estate of JMK (Deceased) 12021] KEHC 2767 (KLR), It was their submission that a birth certificate is enough proof of paternity unless it has been challenged which is not the case in this matter. That the argument that Derrick was not introduced to the entire family is not a reason to challenge his paternity. He attended the funeral and was involved in planning of the burial as the deceased’s son. He even received some money from the deceased’s employer.
On the third issue, it was the Respondents submissions that the applicant is a sister of the deceased. Siblings are not recognised as dependants under Section 29 unless they can prove that they depended on the deceased. In this case, the deceased was survived by a wife and children and therefore, they are the rightful beneficiaries. Reliance was placed on the decision in In the Matter of the estate of Veronica Njoki Wakagoto (Deceased) (20131 KEHC 1930 (KLR).
On the last issue, it was their submission that the deceased’s estate should be distributed in terms of Section 35 of the Law of Succession Act. They urged the court to disregard the mode of distribution presented by the applicant.
ANALYSIS AND DETERMINATION
The Court has considered the Summons for Confirmation, Protest to the confirmation submissions filed by the parties and finds that the issues for determination are;
What assets comprise the estate of the deceased.
Who are the beneficiaries of the estate?
How the estate property should be distributed among the beneficiaries?
What assets comprise estate of the deceased.
The parties are agreed the following comprise the estate of the deceased;
Motor Vehicle Registration Number KAX 617 G.
Motor Vehicle Registration Number KCH 528 W.
11% shares held in Eagle Investment Company Limited.
2 shares in Kibagenge Investment Company Limited.
Group Life Insurance from Kenya Pipeline Company Limited.
LR. Nakuru Lengenet/949 measuring 0.90 Ha.
Money in A/C Number ************* Equity Bank Limited.
Money in A/C Number ************ Co-operative Bank Limited
Money in A/C Number ************ Standard Chartered Group.
RBA Pensions Benefit.
Shares held at Kenpipe Sacco.
The Court is charged with the responsibility of ascertaining the assets that are available for distribution. The inclusion of the Shares of the SACCO, pension benefit and Group Life Insurance from Kenya Pipeline Company is not supported by the law. This issue has been the subject of numerous decisions that have stated the correct positions at law. One such decision is Kigotho v Wangeci [2025] KEHC 3609 (KLR) wherein it was stated-
[14].The Law relating to pensions and benefits is governed under the Retirement Benefits Act Cap No 3 of 1997 of the Laws of Kenya. Section 36A provides that; “Upon the death of a member of a scheme, the benefit payable from the scheme shall not form part of the Estate of the member for purposes of administration and shall be paid out by the trustees in accordance with the scheme rules.”
[15].The provisions in Section 36 A of the Act are subject to regulation 23 of the Retirement Benefits (Occupants Retirement Benefit Schemes Regulation which states: “That the scheme rules shall provide that upon the death of a member, the benefits payable from the scheme shall be paid to the nominated beneficiary and if the deceased member had not named the beneficiary, then trustees shall exercise discretion in the distribution of the benefits to the dependants of the deceased member.”
[16].There is now a plethora of case law on exclusion of pensions, insurance policies from estate of deceased where there is a nomination. In the case of Re Estate of Carolyne Achieng Wagali [Deceased] 2015 eKLR, the Court stated: -It is the Law that funds subject of a nomination do not form part of the nominator’s estate and therefore such funds cannot pass under the will of the deceased or vest in his personal representative, such funds are not subject to the succession process, and should be dealt with in accordance with the Law governing the nomination. Nominations are statutory, in the sense of them being specifically provided for by a particular statute.
By parity of reasoning in Benson Mutuma Muriungi v C.E.O. Kenya Police Sacco & another [2016] KEHC 7145 (KLR) the Court proceeded to exclude shares that a deceased held in SACCO from the free estate of a deceased available for distribution by a Probate Court.
I therefore find the following do not comprise the estate of the deceased available for distribution-
Group Life Insurance from Kenya Pipeline Company Limited
RBA Pensions Benefit
Shares held Kenpipe SACCO.
The managers or trustees of the respective funds will pay the respective nominees and if the deceased failed to nominate, they shall exercise their discretion in accordance with their respective rules
The 1 st and 2 nd Administrators in their schedule of assets included LR. NO. 792/4/1 in Sugoi, Eldoret and land in Maili Tisa measuring 5 acres. However, the protestor has demonstrated that the assets are in the names of other individuals. The 1 st and 2 nd Administrators have not challenged this assertion. I find therefore that the 2 assets will be excluded from the estate of the deceased and are not available for distribution.
The assets that comprise the estate of the deceased and are available for distribution by this Court are therefore-
i. Motor Vehicle Registration Number KAX 617 G.
ii. Motor Vehicle Registration Number KCH 528 W.
iii. 11% shares held in Eagle Investment Company Limited.
iv. 2 shares in Kibagenge Investment Company Limited.
v. LR. Nakuru Lengenet/949 measuring 0.90 Ha.
vi. Money in A/C Number ************* Equity Bank Limited.
vii. Money in A/C Number ************ Co-operative Bank Limited
viii. Money in A/C Number ************ Standard Chartered Group.
Who are the beneficiaries of the estate of the deceased?
The issues that are disputed are-
Whether the 1 st administrator is a wife of the deceased
Whether the 2 nd Administrator is a child of the deceased
Whether the 3 rd administrator and her siblings are dependants of the deceased
As to whether the 1 st Administrator, Irene Wangare Njoroge is a wife of the deceased, it was her evidence that she and the deceased solemnised their marriage under customary law in 2007 at Nakuru.
Section 43 of the Marriage Act, No.4 of 2014 provides that:
“43 (1) A marriage under this Part shall be celebrated in accordance with the customs of the communities of one or both of the parties to the intended marriage.
(2) Where the payment of dowry is required to prove a marriage under customary law, the payment of a token amount of dowry shall be sufficient to prove a customary marriage.”
It was therefore incumbent upon the 1 st respondent to prove, on a balance of probabilities, that she was married to the deceased. In Gituanja vs Gituanja (1983) KLR 575 , the Court of Appeal held that the existence of a customary marriage is a matter of fact which must be proved with evidence. Hortensia Wanjiku Yawe vs The Public Trustees, Civil Appeal 13 of August 6, 1976 (Wambuzi, P Mustafa V-P and Musoke, JA ) is to the same effect.
Guided by the above provisions of the law and the precedents the onus was on the 1 st respondent to establish that there was in existence a Customary Marriage between her and the deceased. She did not take the first step towards establishing that her union with the deceased was formalised under customary law. No evidence was led to demonstrate that any rites were performed either under Kikuyu or Nandi Custom.
Having failed to prove that the marriage was formalised under custom, she urges that on the evidence the Court can presume that there was a valid marriage on account of the chief’s letter, the obituary and funeral programme, the cohabitation and the fact that she and the deceased had 2 children.
The Supreme Court in the case of MNK v POM; Initiative for Strategic Litigation in Africa (ISLA) (Amicus Curiae) (Petition 9 of 2021) [2023] KESC 2 (KLR) (Family) (27 January 2023) (Judgment) laid out the strict parameters within which a presumption of marriage can be made and stated-
[65] The above notwithstanding, we are of the view, that the doctrine of presumption of marriage is on its deathbed of which reasoning is reinforced by the changes to the matrimonial laws in Kenya. As such, this presumption should only be used sparingly where there is cogent evidence to buttress it.
In that case the Court proceeded to observe that-
[66] In the same breath, we would be remiss if we did not point out that marriage is an institution that has traditional, religious, economic, social and cultural meaning for many Kenyans. However, it is becoming increasingly common for two consenting adults to live together for long durations where these two adults have neither the desire, wish nor intention to be within the confines of matrimony. This Court recognizes that there exists relationships where couples cohabit with no intention whatsoever of contracting a marriage. In such contexts, such couples may choose to have an interdependent relationship outside marriage. While some may find this amoral or incredible, it is a reality of the times we live in today .
The family of the deceased (his deceased mother and sisters) deny that she was a wife to the deceased, the most they concede is that she was a girlfriend. The facts in the instant case are almost on all fours as those in re Estate of Dr. Quintus Ekessa (Deceased) [2025] KEHC 274 (KLR) where the Court observed as follows-
[56] On whether marriage could be presumed, should it be the case that there was no customary law marriage, there are elements that came out, which placed the deceased and the protestor so intimately together as to suggest that their relationship went beyond mere friendship and teetered towards marriage. In the first place they had a child together. Secondly, the deceased rented residential premises for the accommodation of the protestor and her child. Thirdly, there is evidence that the deceased used to spend nights at that residence, never mind that it was once a week or so. Fourthly, the deceased employed house helps, to assist the protestor raise his daughter. Fifthly, the said child was taken to the ancestral home of the deceased, at Amukura, for the purpose of fulfilling the Teso custom of shaving off the hair of that child. Sixthly, the protestor was incorporated into a chama, which comprised of the relatives of the deceased and his friends. Seventhly, the protestor took time to travel from Nairobi to Kisumu to visit the deceased in hospital, where he lay dying. It would have taken immense and extraordinary courage, on the part of a girlfriend, to visit a dying boyfriend in hospital, in circumstances where such a boyfriend would be surrounded by his close family members, such as wives, children and siblings. Eighthly, when the deceased died, the family recognised her, her parents and her children in the obituary, obituary and funeral programme, and allowed them to fully participate in the funeral programme. Ninthly, the protestor had possession of a motor vehicle allegedly belonging to the deceased, at her disposal, in respect of which PW3 had to call her to retrieve its keys.
It is not in dispute that the deceased paid the rental for the house in which the 1 st administrator and her children were living, it is also acknowledged that the obituary and funeral programme indicated that the deceased was married to her. The funeral programme also included her parents as parents in law to the deceased. At the time of his death, the 1 st administrator was in possession of one of the vehicles. It is the 1 st administrator who was issued with the burial permit. The funeral programme stated she was at his bedside at the time of his death. She was not a stranger to his employer, she continues to receive pension.
On the basis of the foregoing, I find that notwithstanding she and the deceased did not formalise their marriage under, the circumstances are such that a marriage can be presumed between the deceased and the 1 st administrator.
As to whether the 2nd administrator the biological child of the deceas
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INTRODUCTION
There are multiple summons for confirmation of grant filed in this cause, to be precise 4. The first is dated 1 st November 2019 and is presented by Ziborah Tanui (formerly 3 rd Administrator, now deceased). The 2 nd is dated 21 st November 2019 and is presented by the 1 st and 2 nd Administrators, Irene Wangare Njoroge and Derrick Kipchumba Keney. The 3 rd is dated 16 th November 2022 and is presented by Esther Cherotich Tanui 3 rd Administrator (By virtue of Grant of Letters of Administration that issued on 25 th July 2022 revoking the earlier grant issued on 24 th September 2019, following the death of Ziborah Tanui and her substitution by Esther Chebet Tanui). The 4 th is dated 10 th May 2024 and is presented by the 1 st and 2 nd Administrators.
By directions issued on 25 th July 2023, I directed that the summons that would proceed to hearing is that dated 21 st November 2019 and the summons dated 16 th November 2022 would be deemed as the response to that summons, therefore the protest. Leave was granted to the 1 st and 2 nd Administrator to file their response to the protest and directions given that the matter proceeds by way of viva voce evidence. The Summons dated 10 th May 2024 is therefore otiose it does not comply with the provisions of Section 71 of the Law of Succession Act and it was filed without leave of the Court. The same is therefore struck off the record.
The 1 st and 2 nd Administrator have also filed affidavit of protest dated 10 th May 2024, the same is lodged on the CTS on 9 th October 2025 after conclusion of the trial and without leave of the Court, I strike the same off the court record.
The 3 rd Administrator filed affidavit sworn on 16 th September 2024. In support of her summons dated 16 th November 2022. On 4 th February 2025, I ruled that the same was properly filed.
In summons dated 21 st November 2019, the 1 st and 2 nd Administrator state that the deceased was survived by the following beneficiaries-
Irene Wangari Njoroge Wife
Kimberly Chepkemboi Daughter
Bradley Kimutai Keney Son
Derrick Kipchumba Keney Son
They propose that the Estate of the deceased be distributed as hereunder-
Motor Vehicle Registration Number KAX 617 G to Derrick Kipchumba Keney
Motor Vehicle Registration Number KCH 528 W to Irene Wangari Njoroge
11% Share held in Eagle Investment Company Limited to Irene Wangari Njoroge
2 Shares in Kibagenge Investment Company Limited to Derrick Kipchumba Keney
Group Life Insurance from Kenya Pipeline Company Limited to be shared between Irene Wangari Njoroge, Kimberly Chepkemboi, Bradley Kimutai Keney and Derrick Kipchumba Keney in agreed portions.
LR No. Nakuru Lengenet/ 949 measuring 0.90 Hectares shall be transferred to Irene Wangari Njoroge to hold in trust for Kimberly Chepkemboi and Bradley Kimutai Keney
Money in A/C Number 05601919289332 with Equity Bank Limited to be transferred to Ziborah Jepkorir Tanui
Money in A/C Number 011002732900 with Co-operative Bank Limited to be transferred to Ziborah Jepkorir Tanui
Money in A/C Number 0100173475400 with Standard Chartered Bank Limited to be transferred to Ziborah Jepkorir Tanui
LR 792/4/1 measuring approximately 100 acres in Sugoi, Eldoret; 2 Hectares to Ziborah Jepkorir Tanui to hold a life interest; rest to be shared equally amongst Kimberly Chepkemboi (minor)Bradley Kimutai ( minor) and Derrick Kipchumba Keney with Irene Wangari Njoroge holding in Trust of the minors.
Land in Maili Tisa measuring approximately 5 acres; to be shared equally amongst Kimberly Chepkemboi (minor)Bradley Kimutai ( minor) and Derrick Kipchumba Keney with Irene Wangari Njoroge holding in Trust of the minors.
On her part the 3 rd Administrator avers that the deceased was survived by the beneficiaries
Esther Cherotich Tanui- Sister
Rebecca Chebet Kibet- Sister
Elizabeth Jeptoo Tanui- Sister
Rael Tanui- Sister
Patroba Tanui- Sister
Kimberly Chepkemboi Keney- Daughter
Bradley Kimutai Keney- Son
It is proposed that the Estate of the be distributed as follows-
Motor Vehicle Registration Number KAX 617 G to Esther Cherotich tanui
Motor Vehicle Registration Number KCH 528 W to be disposed and the proceeds utilisd towards the education of Kimberly Chepkemboi and Bradley Kimutai
11% Share held in Eagle Investment Company Limited to be held by Esther Cherotich Tunai in trust of Kimberly Chepkemboi and Bradley Kimutai
2 Shares in Kibagenge Investement Company Limited to be held by Esther Cherotich Tunai in trust of Kimberly Chepkemboi and Bradley Kimutai
Group Life Insurance from Kenya Pipeline Company Limited to be held by Esther Cherotich Tunai in trust of Kimberly Chepkemboi and Bradley Kimutai
LR No. Nakuru Lengenet/ 949 measuring 0.90 Hectares shall be transferred to be held by Esther Cherotich Tunai in trust of Kimberly Chepkemboi and Bradley Kimutai
Money in A/C Number 05601919289332 with Equity Bank Limited to be shared equally between Rebecca Tanui, Elizabeth Tanui, Rael Tanui, Patroba Tanui, Esther Tanui, Kimberly Kenei and Bradley Kenei Money in A/C Number 011002732900 with Co-operative Bank Limited to be transferred to be shared equally Rebecca Tanui, Elizabeth Tanui, Rael Tanui, Patroba Tanui, Esther Tanui, Kimberly Kenei and Bradley Kenei
Money in A/C Number 0100173475400 with Standard Chartered Bank Limited to be shared equally between Rebecca Tanui, Elizabeth Tanui, Rael Tanui, Patroba Tanui, Esther Tanui, Kimberly Kenei and Bradley Kenei
RBA Pension Benefits to be shared equally between Rebecca Tanui, Elizabeth Tanui, Rael Tanui, Patroba Tanui, Esther Tanui, Kimberly Kenei and Bradley Kenei
Shares held at Kenpipe Sacco to be shared equally between Rebecca Tanui, Elizabeth Tanui, Rael Tanui, Patroba Tanui, Esther Tanui, Kimberly Kenei and Bradley Kenei
The summons was canvassed by way of viva voce evidence.
SUMMARY OF EVIDENCE
PW1, Esther Cherotich Tanui (the 3 rd administrator) relied on her affidavits sworn on 16 th September 2024, 30 th September 2022 and 16 th November 2022. She denied that the 1 st administrator is a wife of the deceased. The marriage was not formalized. Their late mother did not recognize her as a wife of the deceased. Her conduct was not as would be expected of a spouse. She cut off communication with the family after the deceased’s burial. There was no ceremony to formalize the marriage. The 1 st administrator was a girlfriend to the deceased. She admits that the Ist Administrator had two children with the deceased and she has made provision for them in her proposal on the mode of distribution.
The 1 st Administrator has received the deceased’s benefits and utilized them and has failed to account for the money so received. This renders her unsuitable to be appointed administrator.
She denies that the 2 nd Administrator is a son of the deceased. He first showed up at the burial of the deceased. The deceased never introduced him as a son. He was not known to the family prior to the death of the deceased.
Both Property known as LR No. 792/4/1 and LR Number 5376/5 do not form part of the estate of the deceased. The former belongs to their late father, Enos Kipkenei Tanui. And the latter to her sister Rebecca Tanui. She proposes that motor vehicle registration number KAX 617 G should be allocated to her. The vehicle was being used by their late mother when she was alive.
On cross-examination, she stated that the deceased, Rebecca, Elizabeth, Rael and Patroba are her siblings. The deceased’s children are Kimberly and Bradley. She disagrees with the chief’s letter dated 20 th September 2017 showing that Derrick was the deceased’s son. She also disagrees with the Birth Certificate indicating that the deceased was Derrick’s father. The deceased never introduced Derrick when he was alive. The obituary was prepared by the funeral committee. The obituary was prepared by Kenya Pipeline. The obituary at paragraph three states that Irene was a wife of the deceased. it also recognized Derrick, Kimberly and Bradley as the deceased’s children. Irene received pension because of the children. According to her, Rebecca and Elizabeth were nominated as beneficiaries with Kenya Pipeline Company for Group Life Insurance. She does not have proof of the same. KAX 617 G is registered in the deceased’s name. They are seeking a share of the deceased’s estate on behalf of their mother who should have benefited but died.
In re-examination, she stated that if their mother was alive, they would not have sought to benefit from the estate. The deceased resided in Kisumu. His rural home was Turbo. The chief’s letter indicates he resided in Mugumoini. The deceased did not have a relationship with Derrick.
RW1, Irene Wangari Njoroge Her evidence was that she is the deceased’s wife. They cohabited for several year and formalized their marriage in 2010 under Customary Law. They lived at Kenya Pipeline Estate from 2000-2012 when he was transferred to Kisumu. She then moved to Langata. The deceased used to visit every weekend. She acquired the chief’s letter from Langata. She used to visit Sugoi with the deceased and the children. She is mentioned as the deceased’s wife in the obituary which was prepared by the funeral committee. She received pension from the deceased’s employer.
She has not been asked to give accounts of the money paid to her, she is willing to give the same. She has not pursued the deceased’s benefits in Group Life Insurance. The deceased’s employer is awaiting the outcome of this case. She has not visited the deceased’s home after the burial because Esther and Patroba were hostile to her. The deceased’s family does not have a relationship with her children. She asked the court to recognize her as the deceased’s wife and adequate provision be made for her children.
On cross- examination, she stated that she received Kshs. 75,000 as pension. Derrick gets Kshs. 25,000 per month while she receives Kshs. 52,000 per month. Her expenses exceed the pension and her salary. She is best suited to hold in trust the interests of the minors. The deceased introduced himself in 2010 at her home in Nakuru. It was in 2007 when they visited her home in Nakuru. Her son was one year old. She was introduced to the deceased’s employer through a marriage affidavit in March 2007. She has not called a witness to support her claim. She used the benevolent fund to buy the children clothes herself and her mother in law. The deceased’s family did not involve her in the funeral arrangements. She was with the deceased in hospital when he was critically ill. The chief’s letter from Turbo recognizes the deceased’s mother as a beneficiary. She got another letter which did not recognize her. She had not met Derrick before the deceased’s death. She has received Kshs. 3.5 million from KPC. She is not okay if Ziborah and her children are included as beneficiaries of the deceased’s estate.
According to her, she believed that LR No. 792/4/1 belonged to her late husband. LR Number 5376/5 belongs to Rebecca. She is in possession of motor vehicle registration number KCH 528 W. She proposes that KAX 617 G should be allocated to Derrick. Ziborah used it when going for her medical checkups. She proposes that her children get the Life Policy Payment. She does not know who was nominated to receive Group Life Insurance.
In re-examination , she stated that payments to Derrick stopped when he turned 21. She was at the deceased’s bedside when he died. The land is registered in the name of the deceased’s father. KAX 617 G is registered in the deceased’s name.
RW2, Derrick Kipchumbe Keney. His evidence was that the deceased was his father. The birth certificate before court indicates that the deceased was his father. The authenticity of the birth certificate has not been challenged.
On cross-examination, he stated that he did not live with the deceased but the deceased paid his school fees. He also bought him a phone and a bicycle. The deceased’s mother knew him. His aunt, Elizabeth introduced him to the deceased’s mother. He did not interact with the other members because they were out of the country.
In re-examination , he stated that the deceased’s ancestral home is in Sugoi. He attended the memorial service of the deceased. the deceased’s entire family was present. The visit was pleasant.
In compliance with the Court’s directions both parties have filed submissions; The 1 st and 2 nd administrator’s submissions are dated 1 st October 2025 and those of the 3 rd administrator (protestor) are dated 1 st November 2025
PROTESTOR’S SUBMISSIONS.
Citing the provisions of Section 3 of the Law of Succession Act and Section 2 of the Marriage Act and the decision of In Re the Estate of T K G (Deceased) [2014] KEHC 8263 (KLR) , the applicant submitted that the 1 st administrator does not fall within the definition of a wife or a spouse of the deceased. Relying on the decision of SAN v GW [2020] eKLR. It is her submission that customary marriage between the applicant and the deceased has not been proved by bringing an independent witness to testify that there was a customary marriage.
Relying on the decision of SWM v PM & another [2023] KEHC 20623 (KLR), Eva Naima Kaaka & Stella Seiyan Kaaka v Tabitha Waithera Mararo [2018] KECA 762 (KLR) , Zipporah Wairimu V. Paul Mucheru, H.C.C.C. No. 1280 of 1970 (unreported), Kimani Gituanja vs Jane Njoki Gituanja [1983] eKLR the protestor submits that there was no evidence of Kikuyu Customary marriage which includes the slaughtering of a ram. There was no evidence or photos that indeed the customary marriage was performed. It was her submission that if indeed there was a marriage, it would have been conducted under Nandi Customary Law and not Kikuyu Customary Law.
On the allegation that there was presumption of marriage, the applicant submitted that the same had not been proved as required by law. She sought reliance on the decisions of PKE v SNM (Civil Appeal E003 of 2021) [2023] KEHC 17683 (KLR), Philis Njoki Karanja & 2 Others –v- Rosemary Mueni Karanja & Another NRB CA Civil Appeal No 313/2001 (2009) eKLR , Joseis Wanjiru v Kabui Ndegwa Kabui & another [2014] KECA 609 (KLR) and Hottensiah Wanjiku Yawe v Public Trustee [1976] KECA 1 (KLR). It was her submission that the 1 st administrator had not proved that she was the deceased’s wife.
On whether the 2 nd Administrator, Derrick Kenney, is a beneficiary to the Estate of the Deceased, it was the protestor’s submission that he was not the deceased’s son. This was confirmed by the 1 st administrator who told the court that she only saw him after the deceased died. That the late Ziborah also denied that he was the deceased’s son and that he confirmed that he did not have any interaction with her.
The Applicant submitted that Land Reference Number 792/4/1 Eldoret Sugoi and Chemalal Farm(Chepkoilel) and the Portion of LR 5376/5 ( Maili Tisa) belong to their late father and her sister Rebecca respectively and therefore, it does not form part of the deceased’s estate. Proof that the property belongs to the deceased has not been presented by the 1 st and 2 nd administrators.
On whether the late Ziborah Jepkorir Tanui is a beneficiary of the deceased’s estate, it was her submission that the affidavits on record show that she was a dependant of the deceased when she was still alive. The vehicle that was used by her was in her possession even after the deceased died. She argued that she is seeking a share on behalf of their late mother.
On how the estate should be distributed, the applicant they asked the court to use its discretion under Section 28 of the Law of Succession Act and distribute the estate. They asked the court to allow the children of the late Ziborah to maintain motor vehicle registration number KAX 617 G; motor vehicle registration number KCH 528W and all the other assets be distributed to Kimberly Chepkemboi and Bradley Kipruto and be held in trust for them. That the retirement and or insurance proceeds held with the Deceased’s former employer in which he nominated his sisters as beneficiaries and the proceeds should go to them.
Lastly, it was her submission that the 3rd Administrator be allowed to hold in trust jointly with the 1st Administrator the estate as distributed to the two minors. She accused the 3 rd administrator of failing to account for the sums she has received from the deceased’s employer.
RESPONDENTS SUBMISSIONS.
The Respondents framed the following as issues to be determined by the court;
Whether Irene Wangare Njoroge was the lawful spouse of the deceased.
Whether Derrick Kipchumba Keney is a lawful beneficiary of the estate.
Whether the Respondent, Esther Cherotich Tanui, and other siblings of the deceased are entitled to inherit.
>< style="text-align: justify;">On the first issue, it was their submission that the 1 st Respondent was a wife to the deceased. That she was recognised in the deceased’s obituary and funeral programme and even sired two children with the deceased. She lived with the deceased and was recognised as the deceased’s wife in the chief’s letter. according to them, presumption of marriage arose in this situation. Reliance was placed on the decisions of Hortensia Wanjiku Yawe v The Public Trustee Nairobi [1976] eKLR, Phylis Njoki Karanja & 2 others v Rosemary Mueni Karanja & another [2009] eKLR, Mary Wanjiku Githatu v Esther Wanjiru Kiarie [2010] eKLR, MNK v POM and Initiative for Strategic Litigation in Africa (ISLA) (Amicus Curiae) [2023] KESC 2 (KLR)
On the second issue, it was their submission that Derrick falls within the definition of a beneficiary under Section 29 of the Law of Succession. Relying on the decision of In re Estate of JMK (Deceased) 12021] KEHC 2767 (KLR), It was their submission that a birth certificate is enough proof of paternity unless it has been challenged which is not the case in this matter. That the argument that Derrick was not introduced to the entire family is not a reason to challenge his paternity. He attended the funeral and was involved in planning of the burial as the deceased’s son. He even received some money from the deceased’s employer.
On the third issue, it was the Respondents submissions that the applicant is a sister of the deceased. Siblings are not recognised as dependants under Section 29 unless they can prove that they depended on the deceased. In this case, the deceased was survived by a wife and children and therefore, they are the rightful beneficiaries. Reliance was placed on the decision in In the Matter of the estate of Veronica Njoki Wakagoto (Deceased) (20131 KEHC 1930 (KLR).
On the last issue, it was their submission that the deceased’s estate should be distributed in terms of Section 35 of the Law of Succession Act. They urged the court to disregard the mode of distribution presented by the applicant.
ANALYSIS AND DETERMINATION
The Court has considered the Summons for Confirmation, Protest to the confirmation submissions filed by the parties and finds that the issues for determination are;
What assets comprise the estate of the deceased.
Who are the beneficiaries of the estate?
How the estate property should be distributed among the beneficiaries?
What assets comprise estate of the deceased.
The parties are agreed the following comprise the estate of the deceased;
Motor Vehicle Registration Number KAX 617 G.
Motor Vehicle Registration Number KCH 528 W.
11% shares held in Eagle Investment Company Limited.
2 shares in Kibagenge Investment Company Limited.
Group Life Insurance from Kenya Pipeline Company Limited.
LR. Nakuru Lengenet/949 measuring 0.90 Ha.
Money in A/C Number ************* Equity Bank Limited.
Money in A/C Number ************ Co-operative Bank Limited
Money in A/C Number ************ Standard Chartered Group.
RBA Pensions Benefit.
Shares held at Kenpipe Sacco.
The Court is charged with the responsibility of ascertaining the assets that are available for distribution. The inclusion of the Shares of the SACCO, pension benefit and Group Life Insurance from Kenya Pipeline Company is not supported by the law. This issue has been the subject of numerous decisions that have stated the correct positions at law. One such decision is Kigotho v Wangeci [2025] KEHC 3609 (KLR) wherein it was stated-
[14].The Law relating to pensions and benefits is governed under the Retirement Benefits Act Cap No 3 of 1997 of the Laws of Kenya. Section 36A provides that; “Upon the death of a member of a scheme, the benefit payable from the scheme shall not form part of the Estate of the member for purposes of administration and shall be paid out by the trustees in accordance with the scheme rules.”
[15].The provisions in Section 36 A of the Act are subject to regulation 23 of the Retirement Benefits (Occupants Retirement Benefit Schemes Regulation which states: “That the scheme rules shall provide that upon the death of a member, the benefits payable from the scheme shall be paid to the nominated beneficiary and if the deceased member had not named the beneficiary, then trustees shall exercise discretion in the distribution of the benefits to the dependants of the deceased member.”
[16].There is now a plethora of case law on exclusion of pensions, insurance policies from estate of deceased where there is a nomination. In the case of Re Estate of Carolyne Achieng Wagali [Deceased] 2015 eKLR, the Court stated: -It is the Law that funds subject of a nomination do not form part of the nominator’s estate and therefore such funds cannot pass under the will of the deceased or vest in his personal representative, such funds are not subject to the succession process, and should be dealt with in accordance with the Law governing the nomination. Nominations are statutory, in the sense of them being specifically provided for by a particular statute.
By parity of reasoning in Benson Mutuma Muriungi v C.E.O. Kenya Police Sacco & another [2016] KEHC 7145 (KLR) the Court proceeded to exclude shares that a deceased held in SACCO from the free estate of a deceased available for distribution by a Probate Court.
I therefore find the following do not comprise the estate of the deceased available for distribution-
Group Life Insurance from Kenya Pipeline Company Limited
RBA Pensions Benefit
Shares held Kenpipe SACCO.
The managers or trustees of the respective funds will pay the respective nominees and if the deceased failed to nominate, they shall exercise their discretion in accordance with their respective rules
The 1 st and 2 nd Administrators in their schedule of assets included LR. NO. 792/4/1 in Sugoi, Eldoret and land in Maili Tisa measuring 5 acres. However, the protestor has demonstrated that the assets are in the names of other individuals. The 1 st and 2 nd Administrators have not challenged this assertion. I find therefore that the 2 assets will be excluded from the estate of the deceased and are not available for distribution.
The assets that comprise the estate of the deceased and are available for distribution by this Court are therefore-
i. Motor Vehicle Registration Number KAX 617 G.
ii. Motor Vehicle Registration Number KCH 528 W.
iii. 11% shares held in Eagle Investment Company Limited.
iv. 2 shares in Kibagenge Investment Company Limited.
v. LR. Nakuru Lengenet/949 measuring 0.90 Ha.
vi. Money in A/C Number ************* Equity Bank Limited.
vii. Money in A/C Number ************ Co-operative Bank Limited
viii. Money in A/C Number ************ Standard Chartered Group.
Who are the beneficiaries of the estate of the deceased?
The issues that are disputed are-
Whether the 1 st administrator is a wife of the deceased
Whether the 2 nd Administrator is a child of the deceased
Whether the 3 rd administrator and her siblings are dependants of the deceased
As to whether the 1 st Administrator, Irene Wangare Njoroge is a wife of the deceased, it was her evidence that she and the deceased solemnised their marriage under customary law in 2007 at Nakuru.
Section 43 of the Marriage Act, No.4 of 2014 provides that:
“43 (1) A marriage under this Part shall be celebrated in accordance with the customs of the communities of one or both of the parties to the intended marriage.
(2) Where the payment of dowry is required to prove a marriage under customary law, the payment of a token amount of dowry shall be sufficient to prove a customary marriage.”
It was therefore incumbent upon the 1 st respondent to prove, on a balance of probabilities, that she was married to the deceased. In Gituanja vs Gituanja (1983) KLR 575 , the Court of Appeal held that the existence of a customary marriage is a matter of fact which must be proved with evidence. Hortensia Wanjiku Yawe vs The Public Trustees, Civil Appeal 13 of August 6, 1976 (Wambuzi, P Mustafa V-P and Musoke, JA ) is to the same effect.
Guided by the above provisions of the law and the precedents the onus was on the 1 st respondent to establish that there was in existence a Customary Marriage between her and the deceased. She did not take the first step towards establishing that her union with the deceased was formalised under customary law. No evidence was led to demonstrate that any rites were performed either under Kikuyu or Nandi Custom.
Having failed to prove that the marriage was formalised under custom, she urges that on the evidence the Court can presume that there was a valid marriage on account of the chief’s letter, the obituary and funeral programme, the cohabitation and the fact that she and the deceased had 2 children.
The Supreme Court in the case of MNK v POM; Initiative for Strategic Litigation in Africa (ISLA) (Amicus Curiae) (Petition 9 of 2021) [2023] KESC 2 (KLR) (Family) (27 January 2023) (Judgment) laid out the strict parameters within which a presumption of marriage can be made and stated-
[65] The above notwithstanding, we are of the view, that the doctrine of presumption of marriage is on its deathbed of which reasoning is reinforced by the changes to the matrimonial laws in Kenya. As such, this presumption should only be used sparingly where there is cogent evidence to buttress it.
In that case the Court proceeded to observe that-
[66] In the same breath, we would be remiss if we did not point out that marriage is an institution that has traditional, religious, economic, social and cultural meaning for many Kenyans. However, it is becoming increasingly common for two consenting adults to live together for long durations where these two adults have neither the desire, wish nor intention to be within the confines of matrimony. This Court recognizes that there exists relationships where couples cohabit with no intention whatsoever of contracting a marriage. In such contexts, such couples may choose to have an interdependent relationship outside marriage. While some may find this amoral or incredible, it is a reality of the times we live in today .
The family of the deceased (his deceased mother and sisters) deny that she was a wife to the deceased, the most they concede is that she was a girlfriend. The facts in the instant case are almost on all fours as those in re Estate of Dr. Quintus Ekessa (Deceased) [2025] KEHC 274 (KLR) where the Court observed as follows-
[56] On whether marriage could be presumed, should it be the case that there was no customary law marriage, there are elements that came out, which placed the deceased and the protestor so intimately together as to suggest that their relationship went beyond mere friendship and teetered towards marriage. In the first place they had a child together. Secondly, the deceased rented residential premises for the accommodation of the protestor and her child. Thirdly, there is evidence that the deceased used to spend nights at that residence, never mind that it was once a week or so. Fourthly, the deceased employed house helps, to assist the protestor raise his daughter. Fifthly, the said child was taken to the ancestral home of the deceased, at Amukura, for the purpose of fulfilling the Teso custom of shaving off the hair of that child. Sixthly, the protestor was incorporated into a chama, which comprised of the relatives of the deceased and his friends. Seventhly, the protestor took time to travel from Nairobi to Kisumu to visit the deceased in hospital, where he lay dying. It would have taken immense and extraordinary courage, on the part of a girlfriend, to visit a dying boyfriend in hospital, in circumstances where such a boyfriend would be surrounded by his close family members, such as wives, children and siblings. Eighthly, when the deceased died, the family recognised her, her parents and her children in the obituary, obituary and funeral programme, and allowed them to fully participate in the funeral programme. Ninthly, the protestor had possession of a motor vehicle allegedly belonging to the deceased, at her disposal, in respect of which PW3 had to call her to retrieve its keys.
It is not in dispute that the deceased paid the rental for the house in which the 1 st administrator and her children were living, it is also acknowledged that the obituary and funeral programme indicated that the deceased was married to her. The funeral programme also included her parents as parents in law to the deceased. At the time of his death, the 1 st administrator was in possession of one of the vehicles. It is the 1 st administrator who was issued with the burial permit. The funeral programme stated she was at his bedside at the time of his death. She was not a stranger to his employer, she continues to receive pension.
On the basis of the foregoing, I find that notwithstanding she and the deceased did not formalise their marriage under, the circumstances are such that a marriage can be presumed between the deceased and the 1 st administrator.
As to whether the 2nd administrator the biological child of the deceas
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