PRESUMPTION OF MARRIAGE BY COHABITATION

In the matter of the Estate of Patrick Kibunja Kamau(Milka Githikia
Kamau Vs. Faith Wangechi Kamau[2008] eKLR
High Court of Kenya at Nakuru (M.Koome J.),May 16,2008.

 Under kikuyu customary law, there can be marriage by cohabitation,
which could be presumed where parties have been cohabiting together.

 The petitioner, Milka Githikia Kamau, while describing herself as
the widow of the deceased petitioned for the letters of grant of
administration on 12th February 1999. According to her, the deceased
Patrick Kibunja Kamau died on 19th January 1999 at Nyahururu and was
survived by herself (as petitioner) and three minor children.

 The letters of administration were issued to the petitioner on 13th
May 1999. On 7th December 1999 the petitioner applied for the
confirmation of the grant. That is when Faith Wangechi Kamau (the
applicant) filed a protest, of the grant being confirmed, on the
grounds that the deceased was also married to her from 1993. She
contended that she had two children with the deceased who also
survived the deceased. The applicant contended that she was left out
as a widow of the deceased and she protested the confirmation of the
grant unless her name and those of her children were included as
beneficiaries of the deceased. The petitioner Milka Githikia Kamau
however denied any knowledge of the applicant as well as the
children. The petitioner also relied on the evidence of one Elkana
Kibunja, the father of the deceased who denied that the deceased had
married the applicant under the Kikuyu Customary Law since the
applicant was never introduced to him or her children.

 When the matter came up in court, the petitioner gave evidence and
relied on the evidence of her father-in-law Elkana Kibunja and one
Leah Nduta, a step-mother of the deceased. It was the petitioner's
case that she got married to the deceased in 1981 under the Kikuyu
Customary Law and they were blessed with three children. Upon
marriage, the petitioner and the deceased cohabited as husband and
wife in Mombasa, and then moved to Maralal, then Kabarnet District
and finally, Nyahururu.

 The deceased was working with the Ministry of Agriculture and as at
the time he passed away he was the Deputy Provincial Director of
Agriculture based in Nyeri. The deceased is said to have also been
running a business at Subukia town centre where he used to visit
frequently to check on his business but he would always return to
Nyahururu where the petitioner lived with the children. When the
deceased was taken to hospital he was at Subukia and he was admitted
at the Nyahururu Cottage Hospital where he passed away. Upon his
death, meetings to arrange the burial were held at Subukia by friends
and relatives. The funeral committee decided that the death of the
deceased be announced by way of advertisement in the newspapers but
the name of the petitioner or the children were not included. The
petitioner sought an explanation from the deceased's father why they
were left out in the death announcement, Elkana Kibunja held a
meeting with the funeral committee at Subukia and directed that the
names of the petitioner and the applicant as well as any other woman
claiming to be his wife be included in the death announcement. Thus
the name of the petitioner, the applicant and all their children were
included in the death announcement and also in the funeral programme

 The petitioner denied that all the time they lived with the
deceased, the deceased had another wife or that she had met the
applicant or her children. The deceased never disclosed to the
petitioner that he had another wife. The petitioner also vehemently
denied that she had differences with the deceased prior to his death.
She denied that the deceased been separated and was living in a hotel
in Nyahururu instead of the matrimonial home. Asked why the deceased
was taken ill while at Subukia and why the funeral meetings were held
in Subukia instead of the matrimonial home in Nyahururu, the
petitioner explained that the deceased was at his business premises
and it was in Subukia where he had many friends and relatives.

 Elkana Kibunja, deceased father supported the petitioner's evidence
in every material aspect, and so did Leah Nduta, Elkana Kibunja's
wife, and the deceased's step mother

 Faith Wangechi the applicant testified that she met the deceased in
1990. They became friends and he is the biological father of her two
children. The first child was born in 1991 and the second child was
born in 1993. In October 1993, the deceased requested the applicant
to start living with him as a wife. They moved in together, moved to
Subukia and eventually the deceased bought a plot and constructed a
business premises called Village Villas Inn. The applicant was
in-charge of the business and the deceased used to live with her.

 She contended that the deceased married her and paid Kshs.19,000 as
dowry. She contended that she was the one who looked after the
deceased when he was in hospital. According to the applicant, she is
the second wife of the deceased. She recognised the petitioner as the
first wife and urged the court to grant the letters of administration
to the two widows.

 Her evidence was supported by one Peter Chege, a friend of the
deceased who confirmed that she was married to the deceased.

 When the matter came up for determination by the court, the single
issue for determination was whether the applicant and her children
are beneficiaries of the deceased's estate. In particular, whether
the applicant was married to the deceased under the Kikuyu Customary
Law and whether the deceased was the biological father of the
applicant's children or whether he had adopted them under the
Customary Law by virtue of the marriage to the applicant.

 Counsel for the applicant invited the court to find that there was
marriage by cohabitation which could be presumed from the
relationship between the deceased and the applicant.

 The court also needed to establish whether the applicant had been
able to discharge the burden of prove that due to the long
cohabitation living as man and wife with the deceased, the court
should presume a marriage. On the issue of whether her children were
deceased's the court stated that ordinarily if they were the
deceased's children they ought to have borne the names of his
parents. From the evidence on record, the applicant had not proved
that these were deceased's children. No birth certificates were
produced or even evidence to show that the deceased used to support
them.

 The final issue to determine is whether the applicant discharged the
burden of prove that by virtue of the long cohabitation she should be
presumed a wife of the deceased. On this, the court answered the
question on the affirmative. On reaching this answer, the court
considered that the deceased used to live with the applicant at
Subukia from 1993. The deceased personal effects such as clothes and
motor vehicle were retrieved from the applicant's house when the
deceased passed away. It is the applicant who took the deceased to
hospital when he was taken ill. The funeral meetings took place in
Subukia which was recognised as the deceased's residence. The funeral
committee included the applicant as the widow of the deceased and she
was accorded the full honours of a widow. The deceased who was
married to the petitioner under the customary marriage had capacity
to marry the applicant.

 The court was categorical that it would be unconscionable for it to
hold that the applicant was a mere impostor looking out to enrich
herself as the petitioner has described her. All those years the
applicant must have held legitimate expectations that she was the
wife of the deceased and thus entitled to a share of his estate and
that denying her a share of the deceased estate would be tantamount
to denial of the fundamental rights as regards fair treatment and
equality before the law.

 In summation, the court held that the applicant can be presumed a
wife of the deceased. However, her children could not be declared the
beneficiaries of the deceased. The deceased was therefore survived by
the petitioner, the petitioner's three children and the applicant who
was each entitled to 1/5 of the deceased's estate

 Download File
<http://kenyalaw.org/Downloads_FreeCases/succ_82_of_1999.pdf>

 Reported By Timon Kosgei of KLR

 May, 2008

 Nairobi Kenya.