In re Estate of Eliud Kiarie Mutembei (Deceased) [2022] KEHC 1777 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

SUCCESSION CAUSE NO. 1972 OF 2014

IN THE MATTER OF THE ESTATE OF ELIUD KIARIE MUTEMBEI (DECEASED)

BETWEEN

JANE NUNGARI......................................................................1ST PETITIONER

PARMENAS NGUGI KIARIE...............................................2ND PETITIONER

AND

EDITH WANJIRU KIARIE........................................................1ST OBJECTOR

STEPHE KIARIE GITAU & OTHERS.................................2ND OBJECTORS

RULING

1. Eliud Kiarie Mutembei, the deceased whose estate is in issue herein, died intestate on 26th January, 2014. A certificate of death of serial number 01102663 is on record to this effect. At the date of his death, he was domiciled in Kenya.

2. On 18th July, 2014, Jane Nungari and Parmenas Ngugi Kiarie, the Petitioners herein, filed a Petition for Letters of Administration Intestate of the deceased’s estate. In the affidavit sworn in support of the petition, it was deposed that the deceased was survived by eleven (11) dependants and that the only asset comprising his intestate estate was a property known as L.R. No. Kiambaa/Kihara/1906 measuring 3. 80 acres and with an estimated value of one million shillings (Kshs. 1,000,000/=) only. Annexed to the affidavit is a certificate of official search dated 8th May, 2014 which indicates that the deceased was registered as the proprietor of the property on 6th November, 1991.

3. On 15th April, 2015, the Objectors filed an objection to the making of the petition for grant of letters of administration intestate on the grounds that they were the wife and children of the deceased. That the Petitioners had failed to disclose all the dependants of the deceased’s estate and if the making of the grant proceeds in accordance with the petition, the Objectors would be disinherited. It was urged that the Objectors were the right persons to inherit and had the right to be given the administration of the estate of the deceased to enable them administer the estate of the deceased.

4. Later on 18th June, 2015 the Objectors filed an Answer to the Petition of Grant dated 16th June, 2015 in which they stated that the Petition for Grant should be dismissed for the reasons that it does not include all the dependants and beneficiaries of the deceased’s estate. That the Petition as presented had intentionally omitted the beneficiaries of the second House of the deceased, namely his second wife and their children, and as such they were likely to be disinherited.

5. The Objectors annexed a letter issued by the Area Chief which indicates the beneficiaries of the deceased and includes the Objectors. They urged that they would contemporaneously file a petition by way of cross-application for a grant of representation to the estate of the deceased to be made to them, a copy of which was annexed.

6. The matter proceeded by way of viva voceevidence. The Objectors called a total of five (5) witnesses while the Petitioners called two (2) witnesses.

7. The 1st Objector testified that while she did not recall the year in which she married the deceased, it was during the emergency concerning the Mau Mau fight. At the time of the marriage, she already had two children, twins, and the deceased had informed her that he wanted to marry her with the twins. Thereafter, she begot six (6) other children with the deceased.

8. She and the deceased lived on a parcel of land in Gachie where they reared cattle and poultry. It was when the 1st Objector fell ill and could no longer tend to the cattle and poultry that the deceased forced her out of the home and married another woman, one Jane Nungari. The 1st Objector would then rent a house where she and her children lived, save for her two children, Kinuthia and Gitau, who stayed behind with the deceased. Upon the deceased’s remarriage, the two children left the home and went to stay with the 1st Objector.

9. The 1st Objector confirmed that the deceased had a first wife, one Margaret Muthoni but stated that at the time of marrying the deceased, Margaret was not at the deceased’s home. Margaret would later return to the deceased’s home but following a disagreement with the deceased, she left for work in Nairobi. She narrated that Margaret’s son Perminas Ngugi therafter built the 1st Objector a three-bedroom house to thank her for raising him when his mother moved to Nairobi. She urged that it was strange that Perminas would state that he did not know the 1st Objector since he would not have built her a house if he did not know her.

10. In her cross-examination, she affirmed that the deceased’s father was known as Mutembei Ng’ang’a but stated that she did not name her son Robert after him and instead named him after her own brother since she and the deceased had a disagreement at the time. The 1st Objector’s son Matthew Gichuri is named after her father; her son Edwin after her brother; her son Elvis Wamuti after the brother to her father; her daughter Rose Wariara after her sister; Stephen Gitau after another brother to her father. According to the 1st Objector, she named her children as she liked and contrary to Kikuyu Custom because she was angry with the deceased. during cross-examination she stated that she and the deceased differed regularly and she would go back to her home and stay for even two (2) years at a go.

11. The 1st Objector asserted that she was married to the deceased under Kikuyu customary law and the deceased had, in the company of his brother and an unnamed man visited her parent’s home. She however had no knowledge of what was discussed or whether dowry was paid since she was not allowed to be present. No ngurario (kikuyu wedding) was however done for her and her people did not also visit the deceased’s home.

12. She confirmed that her brother had in 1958 given her a piece of land known as Kiambaa/Waguthu/476 but denied that the land was given to her because she was unmarried. Instead, she stated that her brother had given her the parcel of land because he had large parcels of land. In her re-examination she clarified that her brother gave her the piece of land before she got married to the deceased since she was young and had her twin children.

13. PW2 Nyoike Ngere, a cousin to the deceased on his paternal side, also testified that the deceased had three wives: Muthoni, Wanjiru and Nungari being the first, second and third wives respectively. He was aged between 102 and 103 years at the date of his testimony and stated that he hails from the Kanjiro clan of the Kihara family. He noted that he was older than the deceased who was a child compared to him.

14. It was Mr. Ngere’s testimony that the first wife Muthoni had one child but he did not know how many children each of the other two wives had. He did not participate in the marriage ceremony of Muthoni or Wanjiru (the 1st Objector) noting that he only came to learn that the deceased had married them. He did not also know how long they each lived with the deceased only that Wanjiru lived with the deceased for the longest time.

15. Mr. Ngere asserted that he was not agreeable to the statement by the 1st Petitioner that the 1st Objector was never married to the deceased. He urged that when the 1st Petitioner came to the deceased’s home to get married, she found the 1st Objector who already had children and was also looking after the children of the first wife Muthoni who had left the home. He stated that Muthoni had since died. He urged that it was when the deceased went to work for an airline that he married another wife, the 1st Petitioner herein

16. During cross-examination, Mr. Ngere confirmed that it was Kikuyu custom to name children from both their father’s and their mother’s family. He however had no knowledge of why the deceased named his children with the 1st Objector from only his wife’s family. He was also not aware of any litigation between the deceased and the 1st Objector during the deceased’s lifetime. He nonetheless maintained that the deceased and the 1st Objector were married, noting that he used to see her in the deceased’s home as a wife.

17. PW3 Ngige Kanyinge also testified in support of the Objectors’ case. He stated that the deceased was his paternal uncle and was therefore well known to him. He asserted that the deceased had three wives: Muthoni, Wanjiru and Nungari. That Muthoni had since died but Wanjiru and Nungari were alive. He stated that Muthoni the first wife had one child known as Ngugi. He stated that the Wanjiru (the 1st Objector) was the second wife and she too had children, some of whom were known to him and others whom he did not know since their clan does not live close together.

18. It was Mr. Kanyinge’s statement that in Kikuyu custom, a man could marry a woman with children. That even Nungari (the 1st Petitioner) was married to the deceased with a child. He urged that when a man married a woman with children, the children became children of the man who married their mother. He further urged that the 1st Objector lived with the deceased and the children and was only chased away when the deceased married the 1st Petitioner.

19. Mr. Kanyinge narrated that he used to live in Ndeiya and on returning home found that the deceased had married the 1st Objector and the 1st Petitioner. He however noted that the deceased did not pay the 1st Petitioner’s dowry stating that while the deceased died on 26th January, 2014 it was not until 22nd April, 2017, long after the deceased’s death, that the 1st Petitioner paid her own dowry. He stated that while the 1st Petitioner’s action was to confirm that she was now the deceased’s wife and all ceremonies have been done, this was done after the deceased’s death. He stated that he was not invited to the ceremony that the 1st Petitioner conducted for herself urging that they were not in good terms owing to these proceedings but that there was no bad blood between him and the 1st Petitioner’s children.

20. In cross-examination, Mr. Kanyinge stated that he had no knowledge of when the deceased married the 1st Objector. He had knowledge that it was a customary marriage since the deceased had told him so but could not confirm whether the deceased had performed the last marriage rite for the 1st Objector. He did not also know whether the deceased had denied having married the 1st Objector in court proceedings. He however maintained that the deceased and the 1st Objector were married, that she cooked for him and they slept in one house. He noted that the 1st Objector had eight (8) children and that there was a separate house for the children.

21. Mr. Kanyinge affirmed that he had heard that the 1st Objector had been given land by her father but noted that a father can give a daughter land out of love. In Kikuyu custom, this is known as “mathaga” (gift). That the unmarried daughters on the other hand are given land like sons. He urged that he came to know the deceased well in 1965 when he returned home and would help separate the deceased and the 1st Objector when they fought.

22. Edwin Waruinge Kiarie, who was aged about 73 years at the date of his testimony, testified as PW4. He adopted his statement into evidence. He is a son to the 1st Objector. He stated that he grew up in Gachie where he and his brother Mathew Gachuhi and their step-brothers Patrick Ng’ang’a and Parmenas Ngugi lived with the deceased. They were all little children then and would start standard one together in 1955. His mother, the 1st Objector, looked after all the children since their step-mother had left. They lived with the deceased until 1976 when he left to rent a house nearby. His mother, the 1st Objector, left the home in 1977.

23. Edwin testified that his mother would go away with the youngest child and later return. He stated that the children who were with them while they lived in Gachie were Robert Kimani; Elvis Wamuti; Grace Wambui; Kinuthia; Gitau and Rosemary; and Wariara. He asserted that Muthoni was the first wife; his mother the second wife and one Nungari was the third wife. He did not however know Nungari, urging that she came to the home after he had left. He asserted that the deceased was his father and was the only father he had ever known. When the deceased died, he and his family attended the funeral. He urged that his first son is named Eliud Kiarie after the deceased as are his brother’s children who are named in the same manner.

24. During cross-examination, Edwin confirmed that he and his siblings were named from their mother’s side but stated that he could not tell why this was so. He however stated that whenever children are born in their mother’s family home, they are named after her family. He noted that whereas two of his siblings who have since died were buried on their mother’s land, this was because the deceased had refused to bury them. He noted that since the time when his mother left the deceased’s home, she and the deceased did not have a good relationship but that his mother would occasionally pass by to greet them and they as the children would also visit the deceased.

25. The 2nd Objector Stephen Gitau Kiarie, who is also the last born child of the 1st Objector, testified as PW5. He stated that in Gachie he lived with his parents, the deceased and the 1st Objector. He referenced the letter dated 14th May, 2015 by the Area Chief Kiharu, noting that it recognized that the deceased had three wives and mentioned all deceased’s children from the three wives. He stated that the 2nd Petitioner Parmenas was his step-brother and that he would often visit him in Nairobi where he lived, urging that his sister Grace Wambui was a bridesmaid at Parmenas’ wedding. That the 1st Petitioner could also not purport to have no knowledge of him since he lived with her and would accompany her to the prenatal clinic and had schooled with her brother, one Kangori, at Karura Primary school.

26. Stephen asserted that he and his siblings have no other father besides the deceased and that they have all named their first born sons Kiarie after the deceased. For those of their children who were born while the deceased was alive, the deceased had slaughtered goats for them in line with the Kikuyu tradition.

27. According to Stephen, it was not a correct interpretation to state that the Objectors were not entitled to their father’s property. That despite their having been previous proceedings to this effect, the court did not rule on whether the 1st Objector and the deceased were married or whether they were the deceased’s children since the matter collapsed on a technicality.

28. To support his statements, he produced photographs to demonstrate that they were known to the Petitioners. In one photograph, stated to have been taken in 1971, his sister Grace Wambui is with the 2nd Petitioner Parmenas; in another, taken in 1976, Mr. Kiarie is standing next to Mungai, the deceased’s step-brother; in another taken in 1977, Grace Wambui is standing next to Mungai, the deceased’s elder brother and in another taken in 1969, the deceased is depicted holding Kiarie’s brother Elvis in his right hand and on his left hand is his other brother Franco Kinuthia.

29. Stephen stated that he was not surprised that the 1st Petitioner had denied knowing himself and his siblings since she had never liked them. He urged that when the deceased fell ill, he visited him in hospital and even paid a sum of Kshs. 100,000/= towards the deceased’s medical bill. He however denied the allegation that he paid the sum of money since he knew the deceased would die and this would therefore enable him to stake a claim in his property. After the deceased’s death, he had published a notice in the nation newspaper and included the names of all the deceased’s wives and children. He urged that all of the deceased’s children attended the deceased’s funeral since there was no dispute about them attending the burial.

30. According to Stephen, he and his siblings did not go for DNA testing because they knew they were children of the deceased. He urged that it was the deceased who brought them up. He contended that the issue of DNA was being perpetuated by the 1st Petitioner since she wanted to retain everything and leave out their mother, the 1st Objector. That in any event, the 1st Petitioner’s children had also not undergone DNA testing. He urged that there was never any animosity between the deceased and his siblings and issues would only arise if they asked something of him. His testimony marked the close of the Objectors’ case.

31. The Petitioners’ case commenced with the testimony of the 1st Petitioner who testified as DW1. She stated that she and the deceased got married in 1980. She had one child when she married the deceased. She stated that the deceased accepted that child and paid a goat and liquor to be allowed to take her together with that child in line with Kikuyu custom. She begot eight (8) children with the deceased and therefore had a total of nine (9) children. She lived with the deceased for 34 years and raised and educated the children together. She noted that during the deceased’s lifetime, people claiming to be children of the deceased had taken him to court.

32. She denied the assertions that the Objectors had visited the deceased during the occasions when he was admitted in hospital. The deceased was admitted in hospital on four (4) different occasions. She stated that all the medical bills were paid by her daughter and Parmenas. She noted that she had seen Gitau’s receipt of payment of the deceased’s medical bill but stated that Gitau had never asked her whether he could help with the deceased’s bill. She further stated that she was not involved in the publication of the newspaper advert and was not aware of it.

33. According to the 1st Petitioner, the deceased had taken dowry to her home and was only left with ngurariowhich is the seal of a marriage. The deceased would however die before he did the ngurariothereby forcing the 1st Petitioner to do this herself.

34. Upon cross-examination, she stated the she was 20 years when she married the deceased who was aged between 53 – 56 years at the time. That when she was taken to the deceased’s home, she met Margaret Muthoni, the deceased’s first wife and was taken into her home. She lived in Margaret’s house before Kiarie built her another house.

35. She denied the allegations that the deceased had taken care of the 1st Objector’s children during his lifetime or that Kiarie had accompanied her to the prenatal clinic at one time. She also denied having lived with the Objectors in the same home and urged that the deceased provided for none of the Objectors.

36. Her testimony found support in the testimony of Parmenas Ngugi Kiarie who affirmed that the 1st Objector was never married to the deceased and that her children were never those of the deceased. He denied the photographs that had been presented in support of the Objectors’ case urging that he did not the people depicted in those photographs. He asserted that it was possible for someone to take a photograph at another person’s gate but that this did not mean that they lived there. That despite the allegations made by the Objectors, it was he who solely took care of the deceased.

37. Parmenas stated that he was not aware that the deceased paid school fees for any of the Objectors but noted that he and Edwin Waruinge lived in Rivaroli and went to school in Gachie together. He stated that Rivaroli was like a refugee camp. He also stated that he knew Edwin’s sister Wambui since she too lived in Rivaroli. He urged that he lived in Rivaroli with his parents and many other people, and while there they would share a room with people who were unknown to them.

38. Upon being shown the Chief’s letter during cross-examination, Parmenas confirmed that it was true that a chief would know the people in his location, but stated that the chief was wrong with respect to the second house. In re-examination, he stated that the deceased and the 1st Objector may have lived together during the emergency but that they had at no time lived together as husband and wife. That they were not formally married.

39. At the close of the Petitioners’ case on 25th May, 2021, the court directed that the matter be disposed of by way of written submissions.

40. Learned Counsel Mr. Mbaabu filed written submissions dated 15th July, 2021 on behalf of the Objectors in which he submitted that from the evidence on record and the statements filed by both the Objectors and Petitioners, it was evident that the Objectors were without fault. That it had been demonstrated that the Objectors are the wife and children of the deceased and the Objectors therefore qualify to be appointed as Administrators of the estate of the deceased.

41. Mr. Mbaabu reiterated the testimony of the Objectors’ witnesses and asserted that the testimonies of the Petitioners confirmed the allegations by the Objectors. Counsel stated that from the onset, it was clear that the parties hereto shared the name “Kiarie” and it was not in dispute that the name belonged to the deceased.

42. According to Mr. Mbaabu, the letter issued by the Area Chief of Kihara location in Kiambu stands out as the best evidence to determine this cause. He contended that the letter was never challenged by the Petitioners and therefore remains a crucial piece of evidence on the composition of the deceased’s family. Counsel asserted that it never became necessary to call the maker of the letter as a witness since the letter was never disputed. That in any event, the Chief would have given evidence confirming the fact that the Objectors were wife and children of the deceased respectively.

43. Mr. Mbaabu submitted that from the evidence, it was clear that the 1st Objector was married to the deceased and that their union had borne eight (8) children. That it had been demonstrated that it was the deceased who brought them up, educated them, sought out employment for some of them, organized for dowry payment, and that the children participated in the deceased’s burial. Counsel urged that since there was ample evidence to the effect that the Objectors are the wife and children of the deceased, they ought to be appointed as administrators of the estate together with the Petitioners.

44. Mr. Mbaabu took issue with the evidence led by the Petitioners stating that they did not call any other members of their family, neighbours, or even a village elder to corroborate their evidence. Counsel further asserted that the Petitioners’ Advocate

45. It was Mr. Mbaabu’s assertion that whereas the line of cross-examination employed by the Petitioners’ Advocates was to show that the Objector was not married to the deceased, the Petitioners did not call any independent evidence to show that the 1st Objector was not a wife of the deceased. Counsel contended further that whereas the Petitioners took issue with the naming of the 2nd Objectors, that it did not conform to the naming style in the Kikuyu culture, this had been put to rest by the explanation given by the Objector’s witnesses. That in any event, all the Objectors bear the deceased’s name ‘Kiarie’ in their identification documents and they appear in the way they are in the objection.

46. In opposition, learned Counsel Mr. Mwangi filed written submissions dated 8th September, 2021 on behalf of the Petitioners in which he submitted that the Objectors had not proved on a balance of probability that the 1st Objector was married to the deceased by way of Kikuyu Customary law or any other known system of law and that her children are the children of the deceased. Therefore, that the Objection ought to be dismissed with costs.

47. Mr. Mwangi proposed four issues for determination as follows: (i) whether the 1st Objector Edith Wanjiru was married to the deceased in 1948 pursuant to Kikuyu customary law; (ii) whether the 1st Objector’s children are children of the deceased as alleged; (iii) whether the Objectors are beneficiaries of the estate of the deceased and (iv) who should pay the cost of these proceedings.

48. It was Mr. Mwangi’s submission that none of the witnesses who testified in support of the Objectors’ case alluded to there having been a ceremony geared towards establishing a Kikuyu Customary marriage between the 1st Objector and the deceased. That none alluded to the payment of dowry and performance of a ngurario ceremony. Counsel urged that it is trite law that he who asserts must prove and it was therefore upon the Objector to tender evidence to prove the existence of the Kikuyu Customary Marriage.

49. Mr. Mwangi asserted that the essentials of a Kikuyu Customary Marriage are capacity to marry; consent of the parties to the marriage and the respective families; ngurario – no marriage is valid under Kikuyu Customary Law unless the ngurarioram is slaughtered; ruracio - there can be no valid marriage unless part of the ruracio(dowry) has been paid and commencement of cohabitation. He urged that this was set out in Eugene Cotran’s Casebook on Kenya Customary Law which was quoted with approval by the Court of Appeal in Eva Naima Kaaka vs. Stella Seiyan Kaaka [2018] eKLR.

50. According to Mr. Mwangi, the issue of presumption of marriage does not arise in the circumstances of this case and is not therefore for determination since the 1st Objector and her witnesses had in their testimonies maintained that the 1st Objector was married to the deceased under Kikuyu Customary law. Counsel referenced a suit in which the Objectors had sued the deceased and which had been dismissed for want of prosecution stating that the deceased had in an affidavit sworn thereto denied ever having been married to Edith Wanjiru, the 1st Objector herein, and further denied that the children were his. Counsel took issue with the fact that the Objectors never prosecuted their claims against the deceased in a conclusive manner during his lifetime urging that they only waited to revive the issues upon his death.

51. It was Mr. Mwangi’s further submission that the issue of paternity of the 2nd Objectors herein has been central to this matter and was a nagging issue even during the deceased’s lifetime, and could therefore only be conclusively resolved through DNA testing. He contended that the Objectors had nonetheless deliberately avoided to have the issue of paternity determined by way of DNA evidence during the deceased’s lifetime nor had they applied for sibling DNA testing upon the deceased’s death. Counsel urged that the burden of proving the Objectors’ paternity lay with the Objectors and it was incumbent upon them to marshal all the evidence necessary to so do and this they failed to do. He further urged that paternity cannot be inferred, presumed and or declared by a court without full proof forensic scientific evidence.

52. Mr. Mwangi asserted that in any event, the 2nd Objectors were named after the 1st Objector’s relatives in total deviation of Kikuyu Customary law relating to naming of children. The 1st Objector had sought to explain this deviation stating that she named the children after her relatives since she gave birth to them while living at her parents’ home. That owing to usual family difficulties, she would be chased away while expecting a child and those children born while she was away would therefore be named on their maternal side. In Counsel’s view however, this was by itself an admission that the 1st Objector was not married to the deceased. that in any event, none of the Objectors had produced in court their registration documents in form of a Birth Certificate of Identity Card to prove that indeed they bear the name Kiarie as their surname, and that the surname is derived from the deceased.

53. Mr. Mwangi took issue with the letter presented by the Objectors as that authored by the Chief of Kihara location, stating that its content had notable discrepancies. That while the 1st Objector had stated that two of her children, Mathew Gichuri and Edwin Waruinge were not children of the deceased, the Chief had claimed that they were the deceased’s children. Further that since the 1st Objector had stated that she had left the deceased’s home in 1979, and the letter by the Area Chief was authored in 2014, which was thirty-five (35) years later, the current Chief would not be competent to make the allegations contained in the letter.

54. Upon carefully considering the pleadings on record, the testimonies of the witnesses who testified in support of the respective parties’ cases and the rival submissions, three issues emerge for determination: who between the 1st Petitioner and the 1st Objector qualify as a wife of the deceased; whether the children of the 1st Petitioner and the 1st Objector qualify as children of the deceased and to whom the grant of letters of administration intestate of the estate of the deceased should issue.

55. On the question of who between the 1st Objector and the Petitioner qualifies as a wife of the deceased, it is imperative to note that none of the parties hereto led evidence to demonstrate a valid Kikuyu customary marriage between either of the two women and the deceased. On her part, the 1st Objector led evidence to show that she and the deceased lived together as husband and wife and begot six (6) children. Further that the deceased took in two (2) children that she had prior to getting married, as his own children. All the witnesses who testified in support of the Objector’s case testified as such.

56. Whereas the 1st Petitioner stated that the deceased had performed the ruracio, she did not call any of the deceased’s living relatives to attest to this. It did not help that she performed the ngurario herself, long after the deceased had died. As such, it cannot be stated that she demonstrated the existence of a Kikuyu Customary marriage between herself and the deceased.

57. In any event, the Chief’s letter that was presented stated that the deceased had three houses and that the 1st Objector and the 1st Petitioner were the second and third wives respectively. In issuing the letter, the Chief was a government officer undertaking work in the normal course of duty. The Petitioners cannot therefore purport to rebut the letter through their submissions. If they had wanted to rebut the evidence, they ought to have asked that the Chief be called as a witness as he was the author of the letter and not simply state that he would not be privy to the information regarding the 1st Objector since she had not lived in the deceased’s home for the past 35 years.

58. From the testimonies of the witnesses who testified hereto, I am convinced that despite the fact that evidence has not been led in respect of payment of dowry, it appears that presumption of marriage can arise in respect of both the 1st Objector and the 1st Petitioner. In any event, the 1st Objector and the witnesses who testified in support of her case recognized the 1st Petitioner as having been a wife of the deceased.

59. If a man and woman cohabit and hold themselves out as husband and wife, a presumption of marriage arises. According to section 2 of the Marriage Act, 2014 cohabit means “to live in an arrangement in which an unmarried couple lives together in a long-term relationship that resembles a marriage.” The Blacks’ Law Dictionary on the other hand defines cohabitation as a “marriage by habit and repute” and describes it as “an irregular marriage created by cohabitation that implies mutual agreement to be married.”

60. In Phylis Njoki Karanja & 2 others vs. Rosemary Mueni Karanja & Another [2009] eKLR, the Court of Appeal while deliberating upon the issue of presumption of marriage held as follows:

“Before a presumption of marriage can arise a party needs to establish long cohabitation and acts of general repute; that long cohabitation is not mere friendship or that the woman is not a mere concubine but that the long cohabitation has crystallized into a marriage and it is safe to presume the existence of a marriage. We are of the view that since the presumption is in the nature of an assumption it is not imperative that certain customary rites be performed”

61. In PKA vs. MSA [2014] eKLR it was held that:

“...long cohabitation as man and wife gives rise to a presumption of marriage ...only cogent evidence to the contrary can rebut such a presumption.The presumption is nothing more than an assumption rising out of long cohabitation and general repute that the parties must be married irrespective of the nature of the marriage actually contracted.”

62. For a presumption of marriage to arise, there must be evidence of long cohabitation and that the parties conducted themselves to be married. From the evidence presented hereto, it is safe to conclude that a presumption of marriage arose between either of the two women (the 1st Objector and the 1st Petitioner) and the deceased.

63. Notably, there has never been appointed administrators of the estate of the deceased. When the Petitioners petitioned for grant of letters of administration of intestate, the Objectors filed an Objection and a Grant had therefore not been issued in this matter.

64. On the issue of whether the children of the 1st Objector and those of the 1st Petitioner were those of the deceased, it is trite that children born during coverture are presumed to be children of the marriage. As such, without any evidence to the contrary I can do no more than find that the children of both the 1st Objector and those of the 1st Petitioner were scions of the deceased.

65. Having found that both the 1st Objector and the 1st Petitioner were wives of the deceased, and the deceased had a first wife, who has since died, it is right to state that the deceased was polygamous and had three houses. In order for the ends of justice to be met, I shall appoint a representative from each house as an administrator of the estate of the deceased.

66. In the end, I direct as follows:

i. A grant of letters of administration intestate of the estate of Eliud Kiarie Mutembei (deceased), be and is hereby issued to Parmenas Ngugi Kiarie; Edith Wanjiru Kiarie and Jane Nungari;

ii. The administrators shall within six (6) months of this ruling file a petition for confirmation of grant with the proposed mode of distribution.

iii. Costs shall be in the cause.

It is so ordered.

DATED SIGNED AND DELIVERED IN VIRTUAL COURT THIS 7TH DAY OF MARCH, 2022.

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

L. A. ACHODE

HIGH COURT JUDGE

In the presence of ……………………………………for the Objectors.

In the presence of…………………………………...for the Petitioners.