REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII.
CIVIL, APPEAL NO. E.037 OF 2022.
JANE MOIGE NYAMACHE.. APPELLANT.
=VERSUS=
ELIZABETH BOCHERE MARONGA
RODGERS NYAMACHE MARONGA
ABUSA MARONGA RAM HOSPITAL..RESPONDENTS.
(Being an appeal from the judgment of the Honourable P.C BIWOTT (S.P.M) delivered on the 27th day of May, 2022 in Senior Principal Magistrate's court civil case no. E. 057 of 2022 at Ogembo.)
JUDGMENT
Brief background;
1. The appellant had moved the Senior Principal Magistrate’s court in Civil Case no. E.057 of 2022 at Ogembo.
2. She had sought the following prayers:
a. An order of permanent injunction restraining the defendants by themselves, their agents, servants, and/or anyone claiming through the defendants from interring the remains of the deceased, without the participation of the plaintiff in the burial.
b. A declaration that the plaintiff is the lawful wife of the deceased and be recognized as such with all rights appertaining to the burial and succession under the Gusii Customary law and rites.
c. Costs and interest thereon.
3. On the 27th day of May, 2022 The Learned Magistrate found that the respondents had proved their case on a balance of probabilities and consequently entered judgment for the respondents on the terms set hereunder:
A. A permanent injunction be issued restraining the plaintiff her agents and servants from interfering with the burial arrangements and the burial of Zephania Nyamache Maronga (now deceased).
B. A declaration that the plaintiff is not a wife by whatever means of the said Zephania Nyamache Maronga (now deceased).
C. A declaration that the plaintiff is the lawful and legal wife of the said Zephania Nyamache Maronga (now deceased) and she is the one andated to bury the deceased.
D. Costs and interest thereon.
4. This has precipitated this appeal.
The appellants case:
5. During the hearing she testified that she got married to Zephania Nyamache Maronga (deceased) in 1971 under the Gusii Customary laws and rites of which ten (10) heads of cattle were exchanged as dowry between the two families to signify the marriage and thereafter proceeded to live in various localities within the Republic of Kenya and that out of the said marriage two (2) issues were born.
6. She denied any knowledge of any divorce proceedings between herself and the deceased and more so the judgment in Divorce case number 23 of 1994.She further noted that no dowry had been returned to signify the dissolution of the marriage.She also called Soteri Osoro Nyambane and Elijah Nyamache as witnesses.Obuba her uncle and cousin of the deceased to prove that she got married to the deceased in 1971 under the Gusii Customary laws and rites of which ten (10) heads of cattle were exchanged as dowry whereby (2) issues were born and that the appellant and the deceased never divorced as claimed as dowry was never returned in accordance to the Gusii Customary rites and neither were they aware of the proceedings in Divorce case number 23 of 1994.
7. She produced the chief's letter, the minutes of a family meeting called by the deceased and a title deed for BASSI/BOGETAORIO I|/249.
8. DW 4 who was the deceased's sister testified that she was not aware of the divorce proceedings.
9. It is her case that he trial court for neglected to take into account the appellant's and her witnesses' evidence that there was an existing customary marriage and more so the requirement of a Gusii customary marriage whereby dowry was paid and that it had not been dissolved according to the Gusii Customary rites and customs.Both the deceased and the appellant subscribed to the African custom which in this case was the Gusii Customary rites and customs.
10. Article 2(4) of the Kenyan constitution recognizes the application of customary law with a limitation to its inconsistency with the constitution and the said marriage was a lawful customary marriage which is recognized in law.
11. Further Section 3(2) of the Judicature Act, cap. 8 Laws of Kenya provides that the Court of Appeal, the High Court and the subordinate courts shall be guided by African Customary law in civil case where one or more parties are subject to or affected by it, so far as it is applicable and is not repugnant to justice and morality or any written law and shall decide such cases according to substantial justice without undue regard to technicalities of procedures and without undue delay.
12. That although the chief's letter did not confer status and rights of a wife, there was sufficient evidence of exchange of dowry according to the Gusii Customary rites and customs and which dowry was never returned to the deceased which was proof of a customary marriage.
13. Section 43 (2) of the Marriage Act, No. 4 of 2014 states that where the payment of dowry is required to prove a marriage under Customary law, the payment of a token of dowry is sufficient evidence of a customary marriage.In this case there is strong evidence from the deceased's cousin and uncle that the deceased paid 10 cows to the appellant's family as a sign of a marriage with the appellant herein.
14. The evidence of PW 2 and PW 3 was uncontroverted in their testimony that dowry of ten cows was never returned if at all to signify the dissolution of the marriage. The two witnesses who were elderly men said they were conversant with the customs of the Gusii community stated that a customary marriage is considered dissolved upon the return of dowry which did not occur in this case.
15. The purported judgment in Divorce case number 23 of 1994 is a clear admission by the respondents that indeed there existed a marriage between the deceased and the appellant save that the said divorce is a nullity as it was done in the wrong forum and there is no evidence of the appellant's knowledge and/ or participation in the proceedings.
16. The purported divorce proceedings/judgment were not binding as they were illegal/unlawful as they were obtained ex-parte so rendering the same null and void as the marriage which was celebrated under the Gusii Customary rites and customs should have been dissolved in the same manner as celebrated and the return of dowry was significant to make the dissolution valid and lawful.
17. Reliance is placed in the case of TSA versus SO- civil appeal no. 57 of 1978 High Court Appellate Side the court held that under the Luo customs a marriage stood dissolved as long as the father was willing to return the dowry and did not matter whether the husband refused to accept the dowry back.
18. In the case of Equitorial Commercial Bank Ltd v Mohan Sons (k) Ltd
2012) KLR the court of appeal expressed itself as follows: - ... "we definitely appreciate and agree that the object and scope of summons to enter appearance is to make the defendant aware of the suit filed against him and to afford him time to appear and follow the process of law"...
The Respondents’ case:
19. It is their case that from the evidence adduced by the Appellant, she claims to have been married to the deceased in 1971 under Gusii customary law where 10 heads of cattle was pad as pride price.
20. The appellant claimed to have sired 2 children with the deceased namely Sarah Maranga and Irene Nyanchama Maranga. She claimed that her husband the deceased hailed from Sameta, that she did it have a house there, as the deceased's second wife, Elizabeth Bochere Maronga destroyed the house.She denied having been divorced by the deceased.
21. The Appellant's witness Zoter Osoro (PW2) claimed that the deceased and the appellant herein got married in 1971 under the Gusii customary law, and ten cows were paid as pride. He claimed to have witnessed the dowry payment and further claimed that the dowry had never been returned to signify divorce if there was any.The other witness for the appellant, Elijah Nyamache (PW3) cousin of the deceased claimed that the deceased and the appellant herein got married in 1971 under Gusii, customary law.
22. He claimed not to have beck aware of any divorce proceedings between the deceased and the appellant the dowry had never been retuned. He confirmed that by the time the deceased died, he lived apart with the appellant.
23. It is their case that DWl testified that she married the deceased in 1961 and got blessed with 6 childrenShe denied knowing the appellant as she never found her at the home of the deceased. She further testified that she took care of the deceased in his sickness till death and throughout, the appellant was not involved in taking care of the deceased.Rodgers Nyamache Maranga testified as DW2 and stated that the deceased is his father. He stated that he had never met the appellant herein but only have come to meet her in court.He equally stated that he had never seen the claimed children of his father named as Sarah Maranga & Irene Maranga.
24. Ronald Abisai testified as PW3 and stated that he is son to the deceased and that he had never seen the appellant.Peris Moraa testified as DW4 and stated that she is the sister to the deceased and only knew one wife to the deceased who is Elizabeth Bochere, She stated that she did not know the appellant.
25. It is their case that the appellant relied on the following documents;
A letter date from the chief recognizing Jane Mbige Marango as wife of the late Zephania Maronga.The said chief was not called to testify.Minutes of a meeting.She got married to the deceased Maronga and a bride of 10 cows was paid.
26. She never sired any children hence her husband married another wife after chasing her away.She then went to live with her parents and now had come back to reclaim her marital place,Zephania Nyamache (deceased) on his part is quoted as stating that Jane went away may years back, but allegedly stated in the Baraza that if she had come back her issues can be resolved.However from the attendance report of the meeting, the 1 Respondent was not present in the meeting.
27. A copy of a judgement in Kisii Chief Magistrate's court Divorce Cause No, 23 OF 1994 between Zephania Maronga -vs- Jane Moige & Kombo Machuki nullifying as that the marriage between the deceased and the herein by a judgement dated 3"' August 1994.In its Judgement delivered on, 27 March 2023, The trial court (Hon. P. Biwott SPM) delivered himself as follows:
"From the submissions of two learned counsels and evidence given in court, it is clear that the Plaintiff and the deceased were not living together at the time of his demise. The deceased was living with the 1" defendant. The deceased had obtained a divorce against the Plaintiff in 1994, the divorce has not been challenge so far and the Plaintiff claims to be without knowledge. The allegations that it obtained by fraud are not proved. As we stand the Plaintiff is divorced. The deceased did not set the divorce order aside to allows him in 2019 bring back the Plaintiff to take her position as wife".
28. From the grounds of appeal, the appellant and particularly at ground number 2, the appellant avers as follows:-
"The Learned Magistrate erred in law and fact by failing to make a finding that the proceedings/judgement were not binding as they were illegal/unlawful as they were obtained ex-parte and no reason has been given as to why the appellant failed to enter appearance or evidence of service so rendering the same null and void."
29. The Respondents submit at this stage that this whole appeal will turn on the question of whether there was a valid divorce between the deceased and the appellant herein.Once that issue is determined, the appellant's rights to bury the deceased will then be determined as is settled in law on the basis on spousal rights to bury.
30. It is their case that it is settled law that an order of the court whether ex-parte or not remains valid until the same is quashed and/or set aside or varied.There is an existing court judgment dissolving the marriage had between the appellant and the deceased inde and, ve submit that of divorce until its appellate jurisdiction has been invoked.
31. They further humbly submit that this is a court of record which is guided by pleadings, evidence and proceedings in any court and/or quasi judicial authority exercising original jurisdiction over a matter.The Judgment/decree in the said divorce cause No 23 of 1994 remains a valid judgement/decree of a court of competent jurisdiction until the same is set aside.
32. From the Chief's Baraza minutes signed by Linus O. Choka, Chief Itibo Location produced as P. EXH. 3 subject; MARITAL ISSUES BETWEEN ZEPHANIAH NYAMACHE AND JANE MARONGA" they invite the court to pay attention to the said exhibit 3, and they note the following:-
The Appellant testified in 2019 that they were not blessed with any children in her testimony before the lower court, she claims to have been blessed with two children in her marriage with the deceased.
The Appellant admits to having been chased away by the deceased and went to live with her parents and the deceased then married another wife thus acknowledging the fact that the 1s Respondent herein is a wife of the deceased.
That will equally lead to the evidence on the decree of the divorce in Kisii CMCC Divorce Cause No. 23 of 1994, meaning that the appellant's marriage with the deceased had been dissolved
33. The Respondent told the chief's baraza that she had come back in 2019 to reclaim her marital place with the deceased.By 2019, when a chief's Baraza purported to resolve martial issues between the appellant and the deceased, there was a valid Judgement of a court of competent jurisdiction dissolving the marriage between the appellant and the deceased Zephaniah Nyamache which cannot be set aside by the client's Baraza other than through a judicial process either a review of the Judgement and/or an appeal against the same.
34. They argue that the appeal herein lacks merit and this court should proceed to dismiss the same with costs and uphold the judgement and decree of the lower court.
Analysis and determination:
In Selle & Another vs. Associated Motor Boat Co Ltd & Others [1968] EA
The court therein held that the appellate court was not bound by the findings of fact of the trial court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses and thus make due allowance in that respect.
This principle was enunciated thus:
"...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect..."
35. In re evaluating the evidence before the trial court, I find that at the hearing the appellant testified that she got married to Zephania Nyamache Maronga (deceased) in 1971 under the Gusii Customary laws and rites of which ten (10) heads of cattle were exchanged as dowry between the two families to signify the marriage and thereafter proceeded to live in various localities within the Republic of Kenya and that out of the said marriage two (2) issues were born. This evidence remains unshaken. There was indeed a Customary marriage. She further noted that no dowry had been returned to signify the dissolution of the marriage.
36. The fact that the Appellant was chased away by the deceased and went to live with her parents and the deceased then married another wife does not amount to a dissolution of the Customary marriage.
37. Upon revaluating the evidence, it is my finding that the judgment in Divorce case number 23 of 1994 corroborates the fact a there was a marriage between the deceased and the appellant. No decree Nisi or Absolute was produced to prove the dissolution of the said marriage.
38. The whole appeal turns on the question of whether there was a valid divorce between the deceased and the appellant herein. I find that the trial magistrate fell into error in finding that there was no marriage between the Appellant and the deceased.
39. The upshot of the foregoing is that indeed the marriage between the appellant and the deceased was still in subsistence at the time of his demise and I so hold.
Order:
1. The appeal is allowed.
2. A declaration is hereby issued to the effect that the plaintiff is the lawful wife of the deceased and be recognized as such with all rights appertaining to the burial and succession under the Gusii Customary law and rites.
3. Each party to bear their costs.
IN THE HIGH COURT OF KENYA AT KISII.
CIVIL, APPEAL NO. E.037 OF 2022.
JANE MOIGE NYAMACHE.. APPELLANT.
=VERSUS=
ELIZABETH BOCHERE MARONGA
RODGERS NYAMACHE MARONGA
ABUSA MARONGA RAM HOSPITAL..RESPONDENTS.
(Being an appeal from the judgment of the Honourable P.C BIWOTT (S.P.M) delivered on the 27th day of May, 2022 in Senior Principal Magistrate's court civil case no. E. 057 of 2022 at Ogembo.)
JUDGMENT
Brief background;
1. The appellant had moved the Senior Principal Magistrate’s court in Civil Case no. E.057 of 2022 at Ogembo.
2. She had sought the following prayers:
a. An order of permanent injunction restraining the defendants by themselves, their agents, servants, and/or anyone claiming through the defendants from interring the remains of the deceased, without the participation of the plaintiff in the burial.
b. A declaration that the plaintiff is the lawful wife of the deceased and be recognized as such with all rights appertaining to the burial and succession under the Gusii Customary law and rites.
c. Costs and interest thereon.
3. On the 27th day of May, 2022 The Learned Magistrate found that the respondents had proved their case on a balance of probabilities and consequently entered judgment for the respondents on the terms set hereunder:
A. A permanent injunction be issued restraining the plaintiff her agents and servants from interfering with the burial arrangements and the burial of Zephania Nyamache Maronga (now deceased).
B. A declaration that the plaintiff is not a wife by whatever means of the said Zephania Nyamache Maronga (now deceased).
C. A declaration that the plaintiff is the lawful and legal wife of the said Zephania Nyamache Maronga (now deceased) and she is the one andated to bury the deceased.
D. Costs and interest thereon.
4. This has precipitated this appeal.
The appellants case:
5. During the hearing she testified that she got married to Zephania Nyamache Maronga (deceased) in 1971 under the Gusii Customary laws and rites of which ten (10) heads of cattle were exchanged as dowry between the two families to signify the marriage and thereafter proceeded to live in various localities within the Republic of Kenya and that out of the said marriage two (2) issues were born.
6. She denied any knowledge of any divorce proceedings between herself and the deceased and more so the judgment in Divorce case number 23 of 1994.She further noted that no dowry had been returned to signify the dissolution of the marriage.She also called Soteri Osoro Nyambane and Elijah Nyamache as witnesses.Obuba her uncle and cousin of the deceased to prove that she got married to the deceased in 1971 under the Gusii Customary laws and rites of which ten (10) heads of cattle were exchanged as dowry whereby (2) issues were born and that the appellant and the deceased never divorced as claimed as dowry was never returned in accordance to the Gusii Customary rites and neither were they aware of the proceedings in Divorce case number 23 of 1994.
7. She produced the chief's letter, the minutes of a family meeting called by the deceased and a title deed for BASSI/BOGETAORIO I|/249.
8. DW 4 who was the deceased's sister testified that she was not aware of the divorce proceedings.
9. It is her case that he trial court for neglected to take into account the appellant's and her witnesses' evidence that there was an existing customary marriage and more so the requirement of a Gusii customary marriage whereby dowry was paid and that it had not been dissolved according to the Gusii Customary rites and customs.Both the deceased and the appellant subscribed to the African custom which in this case was the Gusii Customary rites and customs.
10. Article 2(4) of the Kenyan constitution recognizes the application of customary law with a limitation to its inconsistency with the constitution and the said marriage was a lawful customary marriage which is recognized in law.
11. Further Section 3(2) of the Judicature Act, cap. 8 Laws of Kenya provides that the Court of Appeal, the High Court and the subordinate courts shall be guided by African Customary law in civil case where one or more parties are subject to or affected by it, so far as it is applicable and is not repugnant to justice and morality or any written law and shall decide such cases according to substantial justice without undue regard to technicalities of procedures and without undue delay.
12. That although the chief's letter did not confer status and rights of a wife, there was sufficient evidence of exchange of dowry according to the Gusii Customary rites and customs and which dowry was never returned to the deceased which was proof of a customary marriage.
13. Section 43 (2) of the Marriage Act, No. 4 of 2014 states that where the payment of dowry is required to prove a marriage under Customary law, the payment of a token of dowry is sufficient evidence of a customary marriage.In this case there is strong evidence from the deceased's cousin and uncle that the deceased paid 10 cows to the appellant's family as a sign of a marriage with the appellant herein.
14. The evidence of PW 2 and PW 3 was uncontroverted in their testimony that dowry of ten cows was never returned if at all to signify the dissolution of the marriage. The two witnesses who were elderly men said they were conversant with the customs of the Gusii community stated that a customary marriage is considered dissolved upon the return of dowry which did not occur in this case.
15. The purported judgment in Divorce case number 23 of 1994 is a clear admission by the respondents that indeed there existed a marriage between the deceased and the appellant save that the said divorce is a nullity as it was done in the wrong forum and there is no evidence of the appellant's knowledge and/ or participation in the proceedings.
16. The purported divorce proceedings/judgment were not binding as they were illegal/unlawful as they were obtained ex-parte so rendering the same null and void as the marriage which was celebrated under the Gusii Customary rites and customs should have been dissolved in the same manner as celebrated and the return of dowry was significant to make the dissolution valid and lawful.
17. Reliance is placed in the case of TSA versus SO- civil appeal no. 57 of 1978 High Court Appellate Side the court held that under the Luo customs a marriage stood dissolved as long as the father was willing to return the dowry and did not matter whether the husband refused to accept the dowry back.
18. In the case of Equitorial Commercial Bank Ltd v Mohan Sons (k) Ltd
2012) KLR the court of appeal expressed itself as follows: - ... "we definitely appreciate and agree that the object and scope of summons to enter appearance is to make the defendant aware of the suit filed against him and to afford him time to appear and follow the process of law"...
The Respondents’ case:
19. It is their case that from the evidence adduced by the Appellant, she claims to have been married to the deceased in 1971 under Gusii customary law where 10 heads of cattle was pad as pride price.
20. The appellant claimed to have sired 2 children with the deceased namely Sarah Maranga and Irene Nyanchama Maranga. She claimed that her husband the deceased hailed from Sameta, that she did it have a house there, as the deceased's second wife, Elizabeth Bochere Maronga destroyed the house.She denied having been divorced by the deceased.
21. The Appellant's witness Zoter Osoro (PW2) claimed that the deceased and the appellant herein got married in 1971 under the Gusii customary law, and ten cows were paid as pride. He claimed to have witnessed the dowry payment and further claimed that the dowry had never been returned to signify divorce if there was any.The other witness for the appellant, Elijah Nyamache (PW3) cousin of the deceased claimed that the deceased and the appellant herein got married in 1971 under Gusii, customary law.
22. He claimed not to have beck aware of any divorce proceedings between the deceased and the appellant the dowry had never been retuned. He confirmed that by the time the deceased died, he lived apart with the appellant.
23. It is their case that DWl testified that she married the deceased in 1961 and got blessed with 6 childrenShe denied knowing the appellant as she never found her at the home of the deceased. She further testified that she took care of the deceased in his sickness till death and throughout, the appellant was not involved in taking care of the deceased.Rodgers Nyamache Maranga testified as DW2 and stated that the deceased is his father. He stated that he had never met the appellant herein but only have come to meet her in court.He equally stated that he had never seen the claimed children of his father named as Sarah Maranga & Irene Maranga.
24. Ronald Abisai testified as PW3 and stated that he is son to the deceased and that he had never seen the appellant.Peris Moraa testified as DW4 and stated that she is the sister to the deceased and only knew one wife to the deceased who is Elizabeth Bochere, She stated that she did not know the appellant.
25. It is their case that the appellant relied on the following documents;
A letter date from the chief recognizing Jane Mbige Marango as wife of the late Zephania Maronga.The said chief was not called to testify.Minutes of a meeting.She got married to the deceased Maronga and a bride of 10 cows was paid.
26. She never sired any children hence her husband married another wife after chasing her away.She then went to live with her parents and now had come back to reclaim her marital place,Zephania Nyamache (deceased) on his part is quoted as stating that Jane went away may years back, but allegedly stated in the Baraza that if she had come back her issues can be resolved.However from the attendance report of the meeting, the 1 Respondent was not present in the meeting.
27. A copy of a judgement in Kisii Chief Magistrate's court Divorce Cause No, 23 OF 1994 between Zephania Maronga -vs- Jane Moige & Kombo Machuki nullifying as that the marriage between the deceased and the herein by a judgement dated 3"' August 1994.In its Judgement delivered on, 27 March 2023, The trial court (Hon. P. Biwott SPM) delivered himself as follows:
"From the submissions of two learned counsels and evidence given in court, it is clear that the Plaintiff and the deceased were not living together at the time of his demise. The deceased was living with the 1" defendant. The deceased had obtained a divorce against the Plaintiff in 1994, the divorce has not been challenge so far and the Plaintiff claims to be without knowledge. The allegations that it obtained by fraud are not proved. As we stand the Plaintiff is divorced. The deceased did not set the divorce order aside to allows him in 2019 bring back the Plaintiff to take her position as wife".
28. From the grounds of appeal, the appellant and particularly at ground number 2, the appellant avers as follows:-
"The Learned Magistrate erred in law and fact by failing to make a finding that the proceedings/judgement were not binding as they were illegal/unlawful as they were obtained ex-parte and no reason has been given as to why the appellant failed to enter appearance or evidence of service so rendering the same null and void."
29. The Respondents submit at this stage that this whole appeal will turn on the question of whether there was a valid divorce between the deceased and the appellant herein.Once that issue is determined, the appellant's rights to bury the deceased will then be determined as is settled in law on the basis on spousal rights to bury.
30. It is their case that it is settled law that an order of the court whether ex-parte or not remains valid until the same is quashed and/or set aside or varied.There is an existing court judgment dissolving the marriage had between the appellant and the deceased inde and, ve submit that of divorce until its appellate jurisdiction has been invoked.
31. They further humbly submit that this is a court of record which is guided by pleadings, evidence and proceedings in any court and/or quasi judicial authority exercising original jurisdiction over a matter.The Judgment/decree in the said divorce cause No 23 of 1994 remains a valid judgement/decree of a court of competent jurisdiction until the same is set aside.
32. From the Chief's Baraza minutes signed by Linus O. Choka, Chief Itibo Location produced as P. EXH. 3 subject; MARITAL ISSUES BETWEEN ZEPHANIAH NYAMACHE AND JANE MARONGA" they invite the court to pay attention to the said exhibit 3, and they note the following:-
The Appellant testified in 2019 that they were not blessed with any children in her testimony before the lower court, she claims to have been blessed with two children in her marriage with the deceased.
The Appellant admits to having been chased away by the deceased and went to live with her parents and the deceased then married another wife thus acknowledging the fact that the 1s Respondent herein is a wife of the deceased.
That will equally lead to the evidence on the decree of the divorce in Kisii CMCC Divorce Cause No. 23 of 1994, meaning that the appellant's marriage with the deceased had been dissolved
33. The Respondent told the chief's baraza that she had come back in 2019 to reclaim her marital place with the deceased.By 2019, when a chief's Baraza purported to resolve martial issues between the appellant and the deceased, there was a valid Judgement of a court of competent jurisdiction dissolving the marriage between the appellant and the deceased Zephaniah Nyamache which cannot be set aside by the client's Baraza other than through a judicial process either a review of the Judgement and/or an appeal against the same.
34. They argue that the appeal herein lacks merit and this court should proceed to dismiss the same with costs and uphold the judgement and decree of the lower court.
Analysis and determination:
In Selle & Another vs. Associated Motor Boat Co Ltd & Others [1968] EA
The court therein held that the appellate court was not bound by the findings of fact of the trial court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses and thus make due allowance in that respect.
This principle was enunciated thus:
"...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect..."
35. In re evaluating the evidence before the trial court, I find that at the hearing the appellant testified that she got married to Zephania Nyamache Maronga (deceased) in 1971 under the Gusii Customary laws and rites of which ten (10) heads of cattle were exchanged as dowry between the two families to signify the marriage and thereafter proceeded to live in various localities within the Republic of Kenya and that out of the said marriage two (2) issues were born. This evidence remains unshaken. There was indeed a Customary marriage. She further noted that no dowry had been returned to signify the dissolution of the marriage.
36. The fact that the Appellant was chased away by the deceased and went to live with her parents and the deceased then married another wife does not amount to a dissolution of the Customary marriage.
37. Upon revaluating the evidence, it is my finding that the judgment in Divorce case number 23 of 1994 corroborates the fact a there was a marriage between the deceased and the appellant. No decree Nisi or Absolute was produced to prove the dissolution of the said marriage.
38. The whole appeal turns on the question of whether there was a valid divorce between the deceased and the appellant herein. I find that the trial magistrate fell into error in finding that there was no marriage between the Appellant and the deceased.
39. The upshot of the foregoing is that indeed the marriage between the appellant and the deceased was still in subsistence at the time of his demise and I so hold.
Order:
1. The appeal is allowed.
2. A declaration is hereby issued to the effect that the plaintiff is the lawful wife of the deceased and be recognized as such with all rights appertaining to the burial and succession under the Gusii Customary law and rites.
3. Each party to bear their costs.