1. The deceased herein died on 23rd May 2004. The petitioner filed the succession proceedings vide a petition for letters of administration intestate dated 23rd May 2004. The objector filed a notice of objection dated 13th July 2004 on 15th July 2004, objecting to the making of a grant of representation to the estate of the deceased on the grounds that the petitioner had not included the objector and her children in the petition for letters of administration intestate of the estate, that as a dependant, she and her children, are entitled to a share of the deceased’s estate.
2. Due to intervening events, the prosecution of the objection proceedings, brought by way of cross-application dated 23rd April 2008, was not heard. It was only after this court issued its ruling of 14th July 2023, revoking the grant issued to the petitioner on 31st March 2022 and confirmed on 19th October 2022, while also reinstating the petition by way of cross-application filed by the objector and dated 23rd April 2023, that the matter could be heard.
3. The matter was canvassed through viva voce evidence. The hearing occurred in open court on 16th October and 8th November 2023. The parties called witnesses, whose evidence I shall state in the succeeding paragraphs of this judgment.
4. The first witness in support of the objection was Christine Wanjiru Wothiru, the objector. I shall refer to her as “OW1” or “the objector.” She adopted her witness statement dated 8th August 2023 as her evidence in chief. She testified that her relationship with the deceased started in 1999 and that they used to live in Villa Farm Garden in Kikambala. Their relationship was that of a husband and a wife, and they lived together in that capacity until his death. It was her evidence that he visited her parents thrice and was recognised as her spouse by the family and neighbours. They were blessed with one child born on 8th June 2003, Noah Kilonzo Nzuki. She further testified that she had four children from previous relationships who the deceased nevertheless cared for before his demise.
5. She averred that the deceased had other wives apart from herself. Regina was the deceased's first wife. Regina lived in Kitui on the deceased’s property. She had one daughter, Monica, who the deceased took care of as his own.
6. It was her evidence that when the deceased became unwell in 2002, she was the one who took care of him. She was the one who took him to Coast General Hospital on 22nd May 2004, where he died the next day.
7. It was her evidence that other assets were not included in the list of properties, including LR No.1657, which was issued with title after the demise of the deceased herein, and also Title No.3059/3 /MN.
8. When cross-examined, her evidence was that no dowry was paid under Kamba customary law. However, the deceased visited her parents. She conceded that the deceased was the petitioner's husband under statutory law. She didn’t know that he couldn’t get into another marriage. It was her evidence that she met him while working as a manager at Villa Farm Garden, where the petitioner used to stay. She also stated that Title No.2644 was jointly owned by the deceased and the petitioner.
9. The second witness for the objector was Naumy Nthangu Wambua. I shall hereafter refer to her as “Naumy” or “OW2”. Naumy adopted her witness statement dated 8th August 2023. She testified that she lived near the place where the deceased lived. It was her evidence that the deceased and the objector were a husband and a wife. Further the deceased had parted ways with the petitioner. She stated that Noah was the child of the deceased as he was born during the period the objector and the deceased lived together.
10. When cross-examined, she stated that the objector did not attend the deceased’s burial. However, she attended the initial planning of the funeral.
11. Noah Kilonzo Nzuki was the third witness for the objector. I shall hereafter refer to him as “Noah” or “OW3”. Noah adopted his statement dated 8th August 2023 as his evidence in chief. He testified that the deceased was his father. It was his further evidence that all his documents show his name as Noah Kilonzo Kiti.
12. The petitioner and the interested party called 3 witnesses.
13. The first witness for the respondents to the objection was Moses Waweru. I shall hereafter refer to him as “Mr Waweru” or “RW1”. Mr Waweru is a senior advocate in Mombasa and a director of the interested party. He adopted his witness statement dated 26th September 2023 as his evidence in chief. Mr Waweru testified that he was tasked to handle the transaction relating to LR 2644 (Section 3 MN). He did due diligence by visiting the property with other directors. The same was occupied by the petitioner. The title showed that she was the registered owner. He perused the parcel file, which showed that the petitioner had owned the said parcel since 2005. Upon perusal of the documents, they entered into a sale agreement and drew the transfer, which was registered on the 14th of October, 2010, and stamp duty was paid.
14. It was his evidence that they only learnt of the suit herein when they were served with an injunction order dated 19th December 2010. The property was not part of the estate of the deceased, as it was in the name of the petitioner. It was his further evidence that they had been in occupation of the said property for over 10 years and should not be held back from developing it.
15. The petitioner was the second witness. Ms Henriette Benger Kilonzo, who I shall hereafter refer to as “RW2” or “Henriette”, adopted her witness statement dated 12th September 2023. Henriette testified that the objector was introduced to her by the deceased as the new manager of Villa Palm Garden. The three of them lived together in the Villa. She separated from the deceased in 1999 and moved out of the villa in 2000. She filed for divorce vide Divorce Cause No. 40 of 1999 but no decree nisi was ever issued.
16. It was her evidence that the deceased wasn’t able to have children, so it was not true that the objector had a child with the deceased. In her view, the objector was a mistress of the deceased, and not a wife, as the deceased had affairs with several women. She admitted to being aware of Ms Regina but didn’t know her relationship with the deceased. She further admitted that they used to take care of Monica, Regina’s daughter.
17. It was her evidence that she bought Title No.2644 in her name and that of the deceased. Therefore, the same should not be part of the deceased's estate.
18. She stated that Plot No. 3059 was built by the deceased, not the objector, as alleged. It was sold, and the proceeds were used to develop another house.
19. The last witness for the petitioner was Onesmus Nyerere Kinyenze. I shall hereafter refer to him as “Onesmus” or RW3”. The witness adopted his statement dated 12th September 2023. He testified that the deceased was his close friend. It was his evidence that the objector lived in the villa as a servant and not a wife and that the deceased never informed him of her and her son. He denied that the deceased had a child with the objector. He further testified that the objector never attended the deceased’s funeral.
20. It was his evidence that Plot No. 3059 was developed by the deceased and not the objector.
21. When cross-examined, he stated that he knew Regina and Monica as a wife and daughter, respectively of the deceased. It was his evidence that when the deceased died, he was with the objector. He stated that Noah was born when Christine was working for the deceased.
22. Once the hearing ended the court directed the parties to file their written submissions.
23. The objector, through her advocates, H M Lugogo & Company Advocates filed their written submissions dated 1st February 2024.
24. Counsel submitted on four issues, namely: who are the lawful heirs and/or dependants of the deceased; what constitutes assets and liabilities of the deceased; what orders are appropriate in the circumstances; and who should bear the costs of this matter.
25. On the first issue, counsel submitted that the petitioner lacked the legal capacity to contract marriage with the deceased as she did not prove the dissolution of her marriage in German. Counsel urged the court to find that the petitioner was not a surviving spouse of the deceased.
26. On the second issue objector’s counsel submitted that she was married to the deceased by long cohabitation. The fact that the objector went to the Villa as an employee is not a bar to her claim of subsequent marriage by long cohabitation. Counsel urged the court to presume marriage between the objector and the deceased.
27. On Noah Kilonzo counsel submitted that the objector discharged her initial burden of proof that Noah is a biological child of the deceased as the child health immunization card, certificate of birth and the national Identity Card all show that he was born on 8th June 2003 which is during the time the deceased lived with the objector.
28. On the second issue, counsel submitted that subdivision 2644 (original 1657/4) was co-owned by the deceased and the petitioner herein; however, the petitioner argued that the said property was jointly owned. The same was purchased in 1986, prior to the alleged marriage between the deceased and the petitioner. Regarding ownership of subdivision 2644 (original 1657/4), it was urged that the interested party is a purchaser for value was now possessed of a certificate of title.
29. Regarding the transfer of Title No. 2644 to Marura Ikumi, counsel submitted that both the petitioner and Marura Ikumi were aware of these proceedings and the existence of the court order but proceeded to effect the transfer nonetheless.
30. On plot no. 3059 /III/MN, counsel submitted that it belongs to the objector as she built it using her own resources. However, the petitioner confiscated all the evidence.
31. It was submitted that motor vehicle registration number KAC 846Y was left out of the list of assets and ought to be included.
32. On the third issue, counsel urged the court to declare that the certificate of title issued in the name of the petitioner in 2005 is null and void and the same be cancelled forthwith, the transfer of the property to Marura Ikumi Limited and the resulting certificate of title as being null and void, and the same be cancelled forthwith, the estate of the deceased comprises 50% share of the plot 2644/III/MN, Plot 3059/III/MN and the motor vehicle registration number KAC 846Y. Counsel also urged the court to find and declare that the beneficiaries of the estate of the deceased are Christine Wanjiru Mwangi, as a surviving spouse, and Noah Kilonzo Kiti, as a surviving child. Counsel urged the court to revoke the grant of letters of administration issued to the petitioner, appoint the objector as the administrator of the estate, and issue a confirmed grant to her. It was urged that the Land Registrar be ordered to rectify the land records and issue titles accordingly.
33. On costs, counsel urged the court to order the petitioner to bear the costs.
34. The petitioner, through her advocates Odindiko & Co. Advocates, filed written submission dated 14th February 2024. Counsel submitted on four issues namely: who are the heirs and/or dependants of the deceased Nzuki Kilonzo Kiti, what properties form the estate of the deceased Nzuki Kilonzo Kiti.
35. On the first issue counsel relied on Section 29 of the Law of Succession Act and submitted that it is not in dispute that the petitioner was married to the deceased. The petitioner produced a translated copy of the judgement delivered on 14th December 1987 on the dissolution of her marriage in Germany. That the objector did not produce any evidence to show that the said marriage was not dissolved.
36. Counsel submitted that there was no evidence to prove cohabitation between the objector and the deceased. There is no conclusive evidence as to the paternity of Noah Kilonzo, as there is a dispute as to whether the deceased was in a position to bear children. Both the objector and Noah are not dependants of the deceased as per Section 29 of the Law of Succession Act and, therefore, are not entitled to benefit from his estate. Counsel submitted that the petitioner is the sole lawful beneficiary of the deceased's estate herein.
37. On the second issue, counsel submitted that subdivision 2644 (Orig. No.1657/4) Section III Mainland North does not form part of the deceased's estate as it was jointly owned by the petitioner and the deceased. That joint tenancy isn’t subject to succession as the property devolves to a surviving joint tenant.
38. On motor vehicle KAC 846Y, counsel submitted that the same does not form part of the deceased’s estate as there is proof that the same was sold to Mehsin Saleh Abdalla on 28th April 2003 by the deceased.
39. Regarding Plot No.3059 /III/MN, counsel submitted that the same forms part of the deceased's estate as it was owned by the deceased.
40. In conclusion, counsel urged the court to allow the petition dated 23rd June 2004 and dismiss the objector’s notice of objection dated 13th July 2004 and petition by way of a cross-petition dated 23rd April 2008 with costs.
41. The objector filed supplementary submissions dated 29th February 2024. Counsel opposed the adoption/recognition of the foreign judgement and submitted for it to be adopted /recognised it has to go through an enforcement process in law.
42. It was further urged that Section 29 of the Law of Succession Act does not allow former wives to inherit as it relates to people who are not adequately provided for.
43. Counsel submitted that there is no proof that Plot No. 2644 was held in a joint tenancy. Counsel urged the court to allow the objector’s objection.
44. I have considered the petition filed herein as well as the objection by Ms Wothiru and Marura Ikumi Ltd. I have taken into account their respective submissions. I must now determine what orders should be issued herein.
45. In my view, the issues that this court is called upon to determine are the following:-
1. Who are the dependants of the deceased;
2. What assets form part of the estate of the deceased;
3. What orders should issue;
4. Whether the court should make orders as to costs.
46. Section 3 of the Law of Succession Act defines a “wife” as being:-
"wife" includes a wife who is separated from her husband and the terms "husband" and "spouse", "widow" and "widower" shall have a corresponding meaning;”
47. Section 3(2) of the said Act provides that:-
“(2) References in this Act to "child" or "children" shall include a child conceived but not yet born (as long as that child is subsequently born alive) and, in relation to a female person, any child born to her out of wedlock, and, in relation to a male person, any child whom he has expressly recognized or in fact accepted as a child of his own or for whom he has voluntarily assumed permanent responsibility.”
48. It is common ground that the court did not determine the petition to dissolve the marriage between the deceased and the petitioner. That being the case, it is my view that the petitioner remained the spouse of the deceased up to the time of his death. For that reason, she is his heir.
49. Although it was alleged that her previous marriage was not dissolved, the evidence shows that the marriage between her and her previous husband was terminated. I, therefore, find and hold that she had the capacity to contract the marriage with the deceased. The petitioner is, therefore, a beneficiary of the estate of the deceased.
50. Was Noah Kilonzo a son of the deceased? There has been a contestation as to whether the deceased was fertile and could have children. No conclusive evidence was produced either way. The court notes that Noah produced a birth certificate in which the identity of his father is given as Nzuki Kilonzo. In my view, a birth certificate is rebuttable evidence of paternity. In the circumstances, I find and hold that Noah Kilonzo is the son of the deceased and thus entitled to his estate. I am guided by the case of In re Estate of John Kihara Njau alias Kihara John (Deceased) [2021] KEHC 2801 (KLR), where the court stated:-
“A child of a deceased who died intestate, therefore, need not prove dependency in order to inherit from the estate of their deceased parent.
51. What of the objector? Is she the spouse of the deceased? In dealing with the issue of presumption of marriage by cohabitation, the Supreme Court in the case of
MNK v POM; Initiative for Strategic Litigation in Africa (ISLA) (Amicus Curiae) [2023] KESC 2 (KLR) stated:-
“Presumption of marriage is a well-settled common law principle that long cohabitation of a man and woman with a general reputation as husband and wife raises a presumption that the parties have contracted marriage. However, a presumption of marriage is a rebuttable presumption and can disappear in the face of proof that no marriage existed.
According to Halsbury’s Laws of England, 5th Edition 2015:
“Where a man and a woman have cohabited for such a length of time, in such circumstances, as to have acquired the reputation of being man and wife, a lawful marriage between them will be presumed even if there is no prior evidence of any marriage ceremony having taken place, particularly where the relevant facts have occurred outside the jurisdiction and this presumption can be rebutted only by strong and weighty evidence to the contrary.”
Similarly, Bromley Family Law 5th Edition provides that:
“If a man and woman cohabit and hold themselves out as husband and wife, this in itself raises a presumption that they are legally married.”
Section 119 of the Evidence Act, cap 80 Laws of Kenya is also instructive. It provides as follows:
“The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.”
From the foregoing, courts are permitted to make a prima facie legal inference that certain facts exist without proof, regard being taken to the common course of natural events and human conduct, in relation to the facts of a particular case.”
52. Further the Supreme Court, in the case of
MNK v POM; Initiative for Strategic Litigation in Africa (ISLA) (Amicus Curiae) (supra) outlined several factors to consider in determining the presumption of marriage where it stated,
“We find it prudent at this juncture to lay out the strict parameters within which a presumption of marriage can be made:
1.The parties must have lived together for a long period of time.
2.The parties must have the legal right or capacity to marry.
3.The parties must have intended to marry.
4.There must be consent by both parties.
5.The parties must have held themselves out to the outside world as being a married couple.
6.The onus of proving the presumption is on the party who alleges it.
7.The evidence to rebut the presumption has to be strong, distinct, satisfactory and conclusive.
8.The standard of proof is on a balance of probabilities.
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.”
53. I note that the deceased was married to the petitioner. I have seen marriage Certificate No. 54/88, which shows that on 26th February 1988, the deceased, then 36 years old and a bachelor, got married to the petitioner, a divorced person aged 45 years, at the registrar’s office, Mombasa. The marriage was under the Marriage Act (repealed) and was monogamous in nature. This marriage has not been dissolved. The parties had, however, parted ways and no longer lived together. The petitioner testified that she moved out of the matrimonial home, while the deceased lived with the objector as one of his many girlfriends. In my view, the marriage between the petitioner and the deceased had died; all that remained was a formal declaration by the court that it was indeed so.
54. In contrast, the objector lived with the deceased. She cared for him during his sickness and was with him on his deathbed. Their relationship subsisted for a considerable period of time and resulted in the birth of the issue, Noah. In the circumstances, I find and hold that the relationship between the deceased and the objector amounts to a marriage and that she, too, is a beneficiary of the estate of the deceased.
55. Having identified the heirs of the deceased, I must now determine what assets constitute his estate.
56. Subdivision No. 2644 (Orig No. 1657/4) Section III Mainland North was transferred to Marura Ikumi Ltd on 14th October 2010 pursuant to a transaction entered by the petitioner. In my view, the same is not a free asset of the deceased for two reasons: firstly, it was owned by the deceased and the petitioner as joint tenants. Upon his demise, the petitioner, as the survivor, was entitled to transfer the same to herself without going through the succession process. Secondly, even if I was wrong, the title is now in the name of the interested party, the Probate Court lacks the jurisdiction to determine questions regarding title to land.
57. Plot No. 3059/III/MN, however, belonged to the deceased. I am not persuaded that the objector developed or owned it. Similarly, motor vehicle number KAG 846 Y is an asset of the deceased available for distribution.
58. From the foregoing the orders that commend themselves to me are as follows below.
59. I find and hold, therefore that the beneficiaries of the estate of the deceased are:-
a) Henriette Benger Kilonzo;
b) Noah Kilonzo; and
c) Christine Wanjiru Wothiru.
60. The deceased had the following properties;
a) Plot No.3059/III/MN
b) Motor vehicle number KAG846Y.
61. In the circumstances, I order that a grant be issued to Henriette Benger Kilonzo, aka Henriette Owako, and Christine Wanjiru Wothiru jointly, forthwith. I further order that the summons for confirmation of the said grant be filed within 45 days of the date hereof.
62. As this is a dispute between the deceased's heirs, I am of the opinion that an award of costs will not be appropriate. Consequently, I make no orders as to costs.
63. Orders accordingly.
Dated and signed in Mombasa this 7th day of June 2024. Delivered virtually through Microsoft TEAMS.
2. Due to intervening events, the prosecution of the objection proceedings, brought by way of cross-application dated 23rd April 2008, was not heard. It was only after this court issued its ruling of 14th July 2023, revoking the grant issued to the petitioner on 31st March 2022 and confirmed on 19th October 2022, while also reinstating the petition by way of cross-application filed by the objector and dated 23rd April 2023, that the matter could be heard.
3. The matter was canvassed through viva voce evidence. The hearing occurred in open court on 16th October and 8th November 2023. The parties called witnesses, whose evidence I shall state in the succeeding paragraphs of this judgment.
4. The first witness in support of the objection was Christine Wanjiru Wothiru, the objector. I shall refer to her as “OW1” or “the objector.” She adopted her witness statement dated 8th August 2023 as her evidence in chief. She testified that her relationship with the deceased started in 1999 and that they used to live in Villa Farm Garden in Kikambala. Their relationship was that of a husband and a wife, and they lived together in that capacity until his death. It was her evidence that he visited her parents thrice and was recognised as her spouse by the family and neighbours. They were blessed with one child born on 8th June 2003, Noah Kilonzo Nzuki. She further testified that she had four children from previous relationships who the deceased nevertheless cared for before his demise.
5. She averred that the deceased had other wives apart from herself. Regina was the deceased's first wife. Regina lived in Kitui on the deceased’s property. She had one daughter, Monica, who the deceased took care of as his own.
6. It was her evidence that when the deceased became unwell in 2002, she was the one who took care of him. She was the one who took him to Coast General Hospital on 22nd May 2004, where he died the next day.
7. It was her evidence that other assets were not included in the list of properties, including LR No.1657, which was issued with title after the demise of the deceased herein, and also Title No.3059/3 /MN.
8. When cross-examined, her evidence was that no dowry was paid under Kamba customary law. However, the deceased visited her parents. She conceded that the deceased was the petitioner's husband under statutory law. She didn’t know that he couldn’t get into another marriage. It was her evidence that she met him while working as a manager at Villa Farm Garden, where the petitioner used to stay. She also stated that Title No.2644 was jointly owned by the deceased and the petitioner.
9. The second witness for the objector was Naumy Nthangu Wambua. I shall hereafter refer to her as “Naumy” or “OW2”. Naumy adopted her witness statement dated 8th August 2023. She testified that she lived near the place where the deceased lived. It was her evidence that the deceased and the objector were a husband and a wife. Further the deceased had parted ways with the petitioner. She stated that Noah was the child of the deceased as he was born during the period the objector and the deceased lived together.
10. When cross-examined, she stated that the objector did not attend the deceased’s burial. However, she attended the initial planning of the funeral.
11. Noah Kilonzo Nzuki was the third witness for the objector. I shall hereafter refer to him as “Noah” or “OW3”. Noah adopted his statement dated 8th August 2023 as his evidence in chief. He testified that the deceased was his father. It was his further evidence that all his documents show his name as Noah Kilonzo Kiti.
12. The petitioner and the interested party called 3 witnesses.
13. The first witness for the respondents to the objection was Moses Waweru. I shall hereafter refer to him as “Mr Waweru” or “RW1”. Mr Waweru is a senior advocate in Mombasa and a director of the interested party. He adopted his witness statement dated 26th September 2023 as his evidence in chief. Mr Waweru testified that he was tasked to handle the transaction relating to LR 2644 (Section 3 MN). He did due diligence by visiting the property with other directors. The same was occupied by the petitioner. The title showed that she was the registered owner. He perused the parcel file, which showed that the petitioner had owned the said parcel since 2005. Upon perusal of the documents, they entered into a sale agreement and drew the transfer, which was registered on the 14th of October, 2010, and stamp duty was paid.
14. It was his evidence that they only learnt of the suit herein when they were served with an injunction order dated 19th December 2010. The property was not part of the estate of the deceased, as it was in the name of the petitioner. It was his further evidence that they had been in occupation of the said property for over 10 years and should not be held back from developing it.
15. The petitioner was the second witness. Ms Henriette Benger Kilonzo, who I shall hereafter refer to as “RW2” or “Henriette”, adopted her witness statement dated 12th September 2023. Henriette testified that the objector was introduced to her by the deceased as the new manager of Villa Palm Garden. The three of them lived together in the Villa. She separated from the deceased in 1999 and moved out of the villa in 2000. She filed for divorce vide Divorce Cause No. 40 of 1999 but no decree nisi was ever issued.
16. It was her evidence that the deceased wasn’t able to have children, so it was not true that the objector had a child with the deceased. In her view, the objector was a mistress of the deceased, and not a wife, as the deceased had affairs with several women. She admitted to being aware of Ms Regina but didn’t know her relationship with the deceased. She further admitted that they used to take care of Monica, Regina’s daughter.
17. It was her evidence that she bought Title No.2644 in her name and that of the deceased. Therefore, the same should not be part of the deceased's estate.
18. She stated that Plot No. 3059 was built by the deceased, not the objector, as alleged. It was sold, and the proceeds were used to develop another house.
19. The last witness for the petitioner was Onesmus Nyerere Kinyenze. I shall hereafter refer to him as “Onesmus” or RW3”. The witness adopted his statement dated 12th September 2023. He testified that the deceased was his close friend. It was his evidence that the objector lived in the villa as a servant and not a wife and that the deceased never informed him of her and her son. He denied that the deceased had a child with the objector. He further testified that the objector never attended the deceased’s funeral.
20. It was his evidence that Plot No. 3059 was developed by the deceased and not the objector.
21. When cross-examined, he stated that he knew Regina and Monica as a wife and daughter, respectively of the deceased. It was his evidence that when the deceased died, he was with the objector. He stated that Noah was born when Christine was working for the deceased.
22. Once the hearing ended the court directed the parties to file their written submissions.
23. The objector, through her advocates, H M Lugogo & Company Advocates filed their written submissions dated 1st February 2024.
24. Counsel submitted on four issues, namely: who are the lawful heirs and/or dependants of the deceased; what constitutes assets and liabilities of the deceased; what orders are appropriate in the circumstances; and who should bear the costs of this matter.
25. On the first issue, counsel submitted that the petitioner lacked the legal capacity to contract marriage with the deceased as she did not prove the dissolution of her marriage in German. Counsel urged the court to find that the petitioner was not a surviving spouse of the deceased.
26. On the second issue objector’s counsel submitted that she was married to the deceased by long cohabitation. The fact that the objector went to the Villa as an employee is not a bar to her claim of subsequent marriage by long cohabitation. Counsel urged the court to presume marriage between the objector and the deceased.
27. On Noah Kilonzo counsel submitted that the objector discharged her initial burden of proof that Noah is a biological child of the deceased as the child health immunization card, certificate of birth and the national Identity Card all show that he was born on 8th June 2003 which is during the time the deceased lived with the objector.
28. On the second issue, counsel submitted that subdivision 2644 (original 1657/4) was co-owned by the deceased and the petitioner herein; however, the petitioner argued that the said property was jointly owned. The same was purchased in 1986, prior to the alleged marriage between the deceased and the petitioner. Regarding ownership of subdivision 2644 (original 1657/4), it was urged that the interested party is a purchaser for value was now possessed of a certificate of title.
29. Regarding the transfer of Title No. 2644 to Marura Ikumi, counsel submitted that both the petitioner and Marura Ikumi were aware of these proceedings and the existence of the court order but proceeded to effect the transfer nonetheless.
30. On plot no. 3059 /III/MN, counsel submitted that it belongs to the objector as she built it using her own resources. However, the petitioner confiscated all the evidence.
31. It was submitted that motor vehicle registration number KAC 846Y was left out of the list of assets and ought to be included.
32. On the third issue, counsel urged the court to declare that the certificate of title issued in the name of the petitioner in 2005 is null and void and the same be cancelled forthwith, the transfer of the property to Marura Ikumi Limited and the resulting certificate of title as being null and void, and the same be cancelled forthwith, the estate of the deceased comprises 50% share of the plot 2644/III/MN, Plot 3059/III/MN and the motor vehicle registration number KAC 846Y. Counsel also urged the court to find and declare that the beneficiaries of the estate of the deceased are Christine Wanjiru Mwangi, as a surviving spouse, and Noah Kilonzo Kiti, as a surviving child. Counsel urged the court to revoke the grant of letters of administration issued to the petitioner, appoint the objector as the administrator of the estate, and issue a confirmed grant to her. It was urged that the Land Registrar be ordered to rectify the land records and issue titles accordingly.
33. On costs, counsel urged the court to order the petitioner to bear the costs.
34. The petitioner, through her advocates Odindiko & Co. Advocates, filed written submission dated 14th February 2024. Counsel submitted on four issues namely: who are the heirs and/or dependants of the deceased Nzuki Kilonzo Kiti, what properties form the estate of the deceased Nzuki Kilonzo Kiti.
35. On the first issue counsel relied on Section 29 of the Law of Succession Act and submitted that it is not in dispute that the petitioner was married to the deceased. The petitioner produced a translated copy of the judgement delivered on 14th December 1987 on the dissolution of her marriage in Germany. That the objector did not produce any evidence to show that the said marriage was not dissolved.
36. Counsel submitted that there was no evidence to prove cohabitation between the objector and the deceased. There is no conclusive evidence as to the paternity of Noah Kilonzo, as there is a dispute as to whether the deceased was in a position to bear children. Both the objector and Noah are not dependants of the deceased as per Section 29 of the Law of Succession Act and, therefore, are not entitled to benefit from his estate. Counsel submitted that the petitioner is the sole lawful beneficiary of the deceased's estate herein.
37. On the second issue, counsel submitted that subdivision 2644 (Orig. No.1657/4) Section III Mainland North does not form part of the deceased's estate as it was jointly owned by the petitioner and the deceased. That joint tenancy isn’t subject to succession as the property devolves to a surviving joint tenant.
38. On motor vehicle KAC 846Y, counsel submitted that the same does not form part of the deceased’s estate as there is proof that the same was sold to Mehsin Saleh Abdalla on 28th April 2003 by the deceased.
39. Regarding Plot No.3059 /III/MN, counsel submitted that the same forms part of the deceased's estate as it was owned by the deceased.
40. In conclusion, counsel urged the court to allow the petition dated 23rd June 2004 and dismiss the objector’s notice of objection dated 13th July 2004 and petition by way of a cross-petition dated 23rd April 2008 with costs.
41. The objector filed supplementary submissions dated 29th February 2024. Counsel opposed the adoption/recognition of the foreign judgement and submitted for it to be adopted /recognised it has to go through an enforcement process in law.
42. It was further urged that Section 29 of the Law of Succession Act does not allow former wives to inherit as it relates to people who are not adequately provided for.
43. Counsel submitted that there is no proof that Plot No. 2644 was held in a joint tenancy. Counsel urged the court to allow the objector’s objection.
44. I have considered the petition filed herein as well as the objection by Ms Wothiru and Marura Ikumi Ltd. I have taken into account their respective submissions. I must now determine what orders should be issued herein.
45. In my view, the issues that this court is called upon to determine are the following:-
1. Who are the dependants of the deceased;
2. What assets form part of the estate of the deceased;
3. What orders should issue;
4. Whether the court should make orders as to costs.
46. Section 3 of the Law of Succession Act defines a “wife” as being:-
"wife" includes a wife who is separated from her husband and the terms "husband" and "spouse", "widow" and "widower" shall have a corresponding meaning;”
47. Section 3(2) of the said Act provides that:-
“(2) References in this Act to "child" or "children" shall include a child conceived but not yet born (as long as that child is subsequently born alive) and, in relation to a female person, any child born to her out of wedlock, and, in relation to a male person, any child whom he has expressly recognized or in fact accepted as a child of his own or for whom he has voluntarily assumed permanent responsibility.”
48. It is common ground that the court did not determine the petition to dissolve the marriage between the deceased and the petitioner. That being the case, it is my view that the petitioner remained the spouse of the deceased up to the time of his death. For that reason, she is his heir.
49. Although it was alleged that her previous marriage was not dissolved, the evidence shows that the marriage between her and her previous husband was terminated. I, therefore, find and hold that she had the capacity to contract the marriage with the deceased. The petitioner is, therefore, a beneficiary of the estate of the deceased.
50. Was Noah Kilonzo a son of the deceased? There has been a contestation as to whether the deceased was fertile and could have children. No conclusive evidence was produced either way. The court notes that Noah produced a birth certificate in which the identity of his father is given as Nzuki Kilonzo. In my view, a birth certificate is rebuttable evidence of paternity. In the circumstances, I find and hold that Noah Kilonzo is the son of the deceased and thus entitled to his estate. I am guided by the case of In re Estate of John Kihara Njau alias Kihara John (Deceased) [2021] KEHC 2801 (KLR), where the court stated:-
“A child of a deceased who died intestate, therefore, need not prove dependency in order to inherit from the estate of their deceased parent.
51. What of the objector? Is she the spouse of the deceased? In dealing with the issue of presumption of marriage by cohabitation, the Supreme Court in the case of
MNK v POM; Initiative for Strategic Litigation in Africa (ISLA) (Amicus Curiae) [2023] KESC 2 (KLR) stated:-
“Presumption of marriage is a well-settled common law principle that long cohabitation of a man and woman with a general reputation as husband and wife raises a presumption that the parties have contracted marriage. However, a presumption of marriage is a rebuttable presumption and can disappear in the face of proof that no marriage existed.
According to Halsbury’s Laws of England, 5th Edition 2015:
“Where a man and a woman have cohabited for such a length of time, in such circumstances, as to have acquired the reputation of being man and wife, a lawful marriage between them will be presumed even if there is no prior evidence of any marriage ceremony having taken place, particularly where the relevant facts have occurred outside the jurisdiction and this presumption can be rebutted only by strong and weighty evidence to the contrary.”
Similarly, Bromley Family Law 5th Edition provides that:
“If a man and woman cohabit and hold themselves out as husband and wife, this in itself raises a presumption that they are legally married.”
Section 119 of the Evidence Act, cap 80 Laws of Kenya is also instructive. It provides as follows:
“The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.”
From the foregoing, courts are permitted to make a prima facie legal inference that certain facts exist without proof, regard being taken to the common course of natural events and human conduct, in relation to the facts of a particular case.”
52. Further the Supreme Court, in the case of
MNK v POM; Initiative for Strategic Litigation in Africa (ISLA) (Amicus Curiae) (supra) outlined several factors to consider in determining the presumption of marriage where it stated,
“We find it prudent at this juncture to lay out the strict parameters within which a presumption of marriage can be made:
1.The parties must have lived together for a long period of time.
2.The parties must have the legal right or capacity to marry.
3.The parties must have intended to marry.
4.There must be consent by both parties.
5.The parties must have held themselves out to the outside world as being a married couple.
6.The onus of proving the presumption is on the party who alleges it.
7.The evidence to rebut the presumption has to be strong, distinct, satisfactory and conclusive.
8.The standard of proof is on a balance of probabilities.
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.”
53. I note that the deceased was married to the petitioner. I have seen marriage Certificate No. 54/88, which shows that on 26th February 1988, the deceased, then 36 years old and a bachelor, got married to the petitioner, a divorced person aged 45 years, at the registrar’s office, Mombasa. The marriage was under the Marriage Act (repealed) and was monogamous in nature. This marriage has not been dissolved. The parties had, however, parted ways and no longer lived together. The petitioner testified that she moved out of the matrimonial home, while the deceased lived with the objector as one of his many girlfriends. In my view, the marriage between the petitioner and the deceased had died; all that remained was a formal declaration by the court that it was indeed so.
54. In contrast, the objector lived with the deceased. She cared for him during his sickness and was with him on his deathbed. Their relationship subsisted for a considerable period of time and resulted in the birth of the issue, Noah. In the circumstances, I find and hold that the relationship between the deceased and the objector amounts to a marriage and that she, too, is a beneficiary of the estate of the deceased.
55. Having identified the heirs of the deceased, I must now determine what assets constitute his estate.
56. Subdivision No. 2644 (Orig No. 1657/4) Section III Mainland North was transferred to Marura Ikumi Ltd on 14th October 2010 pursuant to a transaction entered by the petitioner. In my view, the same is not a free asset of the deceased for two reasons: firstly, it was owned by the deceased and the petitioner as joint tenants. Upon his demise, the petitioner, as the survivor, was entitled to transfer the same to herself without going through the succession process. Secondly, even if I was wrong, the title is now in the name of the interested party, the Probate Court lacks the jurisdiction to determine questions regarding title to land.
57. Plot No. 3059/III/MN, however, belonged to the deceased. I am not persuaded that the objector developed or owned it. Similarly, motor vehicle number KAG 846 Y is an asset of the deceased available for distribution.
58. From the foregoing the orders that commend themselves to me are as follows below.
59. I find and hold, therefore that the beneficiaries of the estate of the deceased are:-
a) Henriette Benger Kilonzo;
b) Noah Kilonzo; and
c) Christine Wanjiru Wothiru.
60. The deceased had the following properties;
a) Plot No.3059/III/MN
b) Motor vehicle number KAG846Y.
61. In the circumstances, I order that a grant be issued to Henriette Benger Kilonzo, aka Henriette Owako, and Christine Wanjiru Wothiru jointly, forthwith. I further order that the summons for confirmation of the said grant be filed within 45 days of the date hereof.
62. As this is a dispute between the deceased's heirs, I am of the opinion that an award of costs will not be appropriate. Consequently, I make no orders as to costs.
63. Orders accordingly.
Dated and signed in Mombasa this 7th day of June 2024. Delivered virtually through Microsoft TEAMS.