In re Estate of Kipkemei arap Kogo (Deceased) [2019] KEHC 10428 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KITALE

SUCCESSION CAUSE NO. 151 OF 2007

IN THE MATTER OF THE ESTATE OF  KIPKEMEI ARAP KOGO – DECEASED

MARY CHESANG SAMOEI........................................APPLICANT

VERSUS

CHESANG KOGO..........….......................................RESPONDENT

J U D G M E N T

1. The deceased herein died on 14th February 1992 intestate. The petitioner Chesang Kogo applied for the grant .  The same was objected to by the Respondent Mary Chesang Samoei who claimed that she was the decease d's 1st widow having married him sometimes in 1944 and had 2 children namely Rosa Chemutai and Samson Tirop Kipkemei.

2. This court then ordered that the matter do proceed by way of viva voce evidence.  Both parties called their witnesses and their evidence can be summarised as follows:-

3. PW1 Rosa Chemutai Ngososeitestified that she was the deceased daughter and her mother  was his wife.  That the petitioner was her step mother.  She said she was born in 1947 and her parents  married in the year 1944.  Her mother,  the objector was too ill to testify.

4. She produced the area list of  Kimoson farm which showed that the deceased owned parcel no. 61 measuring 37 acres. According to her, her  mother was to be given 2 acreas out of the deceased parcel of land.  She said that by the time the deceased died her mother had left and were not staying together.  She said that the petitioner, her step mother, took care of her till she got married.

5. PW2 Samson Tirop Kemei was the brother to PW1 who testified that he was born in 1966.  On cross-examination he said  that he stayed with PW1 who brought him up.

6. PW3 John Kipyego Kirwa testified that he knew the deceased while at Mosoriot in 1951 and by then was married with 2 wives. He said that PW1 was deceased child but he did not know PW2. He however did not know also the deceased 2nd wife.  He had no idea also of the deceased  land  at Kimoson.  According to him the deceased married the objector' customarily.

7. PW4 Elias Parkleaa court clerk from this court produced  file No. 6/2008 – Land case at Chief Magistrate's court.  The same contained the decree of the court granting the objector  some parcel of land No. 95.

8. DW1 Musa Kiptabut Mungony testified that they purchased the suit land together with the deceased. He said that he knew the petitioner as the only wife of the deceased. On cross-examination he said that he knew the deceased from 1964. He did not  get to know whether he had another wife while in Nandi.

8. DW2 David Kipsang Bundotich testified that the deceased was a member of the  farm since 1972 and the petitioner was his wife.  On cross-examination he said that he only got to know PW1 when she  went for the farm area list In February 2017. She told him that she was the deceased daughter.

9. DW3 Chesang Kogo,the petitioner testified that she was married to the deceased and were blessed with 11 children 7 girls and 4 boys.  She said that she did not get to meet  the Respondent.  She said that she contributed to purchase  of the land using  proceeds of her girls dowry.

10. She denied that she lived with PW1 and PW2. She said that the deceased  renounced the two . She said that PW1 is married and is in her  home.  According to her the land was registered in the name of her husband although she contributed to its purchase As the custom was that it was the man's name to appear on the records.

Analysis and Determination

11. The court has perused the submissions by the parties herein. The  only issue to be determined is whether the objector Mary Chesang Samoei was the deceased wife or  not.  If the answer is on the affirmative then she shall qualify to inherit from the estate pursuant to the provisions of Section 29 of the Succession Act.

12. The objector  apparently did not testify for the reasons of ill healthy. PW1 and PW2 are her children.  PW3 claimed to have stayed together with the objector and the deceased at Mososriot before migrating to where he  died and was burried. This appeared to be in the 1960's or thereabouts.

13. Clearly, there was no  evidence  produced by the objectors to show that there was any form of customary marriage or otherwise between the deceased and the objector.  Neither was produced any  evidence  of dowry paid by the deceased to the parents of the objector as the situation is in the ordinary African customs.

14. In the absence of the same the court will therefore strive  to determine whether by any implication it can be deduced  that indeed there was such union.  PW1  of course by the time there was any alleged marriage had not been born.  PW2 born in 1966 did not offer any useful information.

15. PW1 herein stated that she was brought up by the petitioner herein. Infact she  testified that she was brought up together with PW2, her brother.   PW4 the objector denied the same.  She said that PW1 attempted to  come but the deceased denied that she was her child.

16. There was no evidence  on the other hand  that the objector stayed with the deceased.  PW1 and PW2 as well as PW3 stated that the deceased and the objector had separated but not divorced.  There was no evidence that the deceased ever stayed with the objector as husband and wife leave alone having  the two children with the deceased.

17. Consequently, in the absence of any customary marriage ceremony, the appropriate recourse was to find  whether by conduct ( repute and cohabitation)  it was possible for one to determine  that the deceased lived with the objector as husband and wife.

18. Nothing was  demonstrated at all . There was no evidence that the deceased lived or even build a home for the objector.  As at the date of this petition, there was no demonstration that the objector  lived in the deceased parcel of land.

19. Neither was any evidence shown to suggest that PW1 and PW2 were deceased children.  Infact PW2 stated that he was taken care of by PW1 something which PW1 contradicted.  There were no eye witnesses to testify that indeed the petitioner took care of PW1 and PW2 or that the deceased provided for them in any way.

20. In the absence of any concrete evidence it would not therefore be farfetched  to conclude that the objector was never a widow /wife of  the deceased.  Neither can one conclude that PW1 and Pw2 were his children.  Nothing was exhibited  to this court.

21. Looking at the decree pursuant to the land case No. 54/2007, even if one was to go by it, the tribunal did not as  a matter of fact have any  requisite jurisdiction to determine the question  of whether the objector was the deceased wife.  That was the preserve  of this court.  At any rate by the time the decision was pronounced, the deceased  had died and there were no succession proceedings in respect to his estate.  The court obviously cannot close its eye on these legal  principles.

22. Even if one was to agree with the tribunal, the land in question was not parcel No. 61 as per the area list supplied to this court.  Needless to say, the tribunal had exceeded their mandate and jurisdiction.

23. In the premises I think, I have stated  enough to show that based on the evidence tendered, there is no sufficient proof that the objector was the deceased wife.  If she was and separated, nothing was shown to that effect. The deceased did not settle her anywhere.  Actually, nobody came forward to demonstrate any iota of marriage or payment of pride (dowry) or such.

24. With the above finding, it is this court's conclusion that the two witnesses PW1 and PW2 are not deceased children. Nothing was shown to exhibit any support they received  from the deceased or at all.

25. The objection proceedings dated 22nd June 2015 is hereby dismissed with no order as to costs.

Delivered, signed and dated at Kitale this  22nd day of January, 2019.

H.K. CHEMITEI

JUDGE

22/1/2019

In the presence of:

Munialo for Objector

No appearance for the Petitioner

Court Assistant – Kirong

Judgment read in open court.