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.

What May Invalidate Testamentary Gifts?

Even where the will is, for all intents and purposes on face value,
there are situations that, when attested to, will go to show that the
testator did not intend to make the gifts s/he made or, at least, give
a gift s/he purportedly gave. Such attestation is fatal to
testamentary gifts if it evidences circumstances showing that the
testator did not know and/or approve of the contents of the will.

In such a case, then the will is invalidated. See statements of
Gicheru JA in John Kinuthia Githinji –vs– Githua & others. Nairobi
CACA No. 99 of 1998.

Rationale

The rationale is that testate gifts should be as a result of the
voluntary doing of the testator. Otherwise, we would encourage a
situation where unscrupulous people take to disenfranchising hapless
beneficiaries by use of unacceptable means. In addition, such acts are
generally illegal and the law is that no will should profit from his
wrong doing. The case is not different from one where a beneficiary of
a testate gift shortens the life of the testator to enjoy the gift
sooner that nature would have have do.

Knowledge and approval

As a general rule, the testator is deemed to know if s/he is aware and
understands the terms of the will. Approval means that the testator
executed the will of his own free will without any coercion or undue
influence being exerted on him. The requirements of testator's
knowledge and/or approval is especially paramount where the document
is drawn up by a third party.

Section 7 of the Law of Succession Act covers the factors that may
vitiate knowledge and approval of the testator. The section provides:

"7.A will or any part of a will, the making of which has been caused
by fraud or coercion, or by such importunity as takes away the free
agency of the testator, or has been induced by mistake, is void."

In case of fraud

Any deception exerted on the testator which affects the content of his
will may amount to fraud. For instance, in the case of Wilkinson –vs–
Joughin (1866) Lr 2 Eq 319 the court concluded that a testamentary
gift to a married woman on representation to the testator that she was
free to marry him and who proceeded to marry him be omitted from
probate for fraud. The court's decision is justifiable in that had the
testator been privy to the married status of the lady, chances are he
will have acted differently.

It is important to remember in considering what is or is not deception
to remember that wills are propounded after the death of the maker and
he is not available for comments! Fraud thus arises where the testator
has been prompted by the deception to make provisions or exclusions in
his will against a beneficiary. A false statement made to testator in
relation to that beneficiary will suffice here.

If there a Suspicious Circumstances

One circumstance Probate courts take as suspicious where the drafter
of the will takes a substantial benefit. The logic of this is in the
likelihood that the testator was never made privy of the drafter's
gift. This is especially the case where the draftsperson is a trusted
son.

Even gifts to the lawyer drafting the will may be found to be
embroiled in suspicious circumstances and as a result fail. The
rationale is that not all lawyers can be trusted to remain honest.
Given their superior knowledge of law over the clients, some may opt
to misrepresent that the law requires that certain sum be left to the
drafts person!

In Wintle –vs– Nye [1959] P 1 ALL ER 552, involved a testatrix who had
left a chunk of her estate to her solicitor. The evidence showed that
she was not very educated and for most of her life, she had relied on
the solicitor to make business decisions. It was held that the
circumstances were suspicious and the gift failed as a result.

It is also a suspicious circumstance where the beneficiary had
suggested the term(s) of the will to the testator. The point here is
the likelihood that the testator would not have made the gift but for
the suggestion. And likely, the suggestion was titled in favour of the
suspicious beneficiary.

In Vijay Chandrakant Shah –vs– Public Trustee Nairobi CACA No. 63 of
1984, Platt JA seems to hind at another possible suspicious
circumstance. The learned judge stated that where the propounder of
the will is the principal beneficiary under it, it is the duty of the
court to scrutinize the evidence of the propounder vigilantly and
jealously. In other words, a suspicious circumstance may be inferred
where the propounder of the will is the principal beneficiary.

However, the old case of Barry –vs– Butlin (1838)2 Moo Pcp 480 remains
an authority that the profounder can allay the suspicion and sustain
the gift. It was held in that case that where it was a gift to an
advocate, he had managed to allay the suspicion. In the case, the
learned friend had ensured that the will was executed before two
independent witnesses.

Where Coercion or Undue Influence is involved

This is said to occur when a person is said to be coerced or forced
into making a will or some part of which he does not want to make. It
is common where the testator is of weak mental capacity or cannot
withstand pressure. It may be exhibited by physical force or incessant
talking to a testator who is frail, sick or of failing health.

However, persuasion is not unlawful unless pressure is exerted as to
overpower the volition without convincing the judgment of the
testator. See the holding in Hall -vs- Hall (1869) LR 1P and D 481r.
For instance, a gift prompted by a threat will likely fail while one
had because of persuasion on the part of beneficiary will usually be
sustained.

The justification why the court refuses to sustain a gift had because
of a threat issued by the testator to be the same the courts are quick
o punish terrorism and kidnapping. As for persuasion, it is allowable
probably because there is nothing wrong and maybe the testator
encourage and enjoyed it.

Where the Will is Improperly Attested

Section 13 of the Act provides:

"13. A bequest to an attesting witness (including any direction as to
payment of costs or charges) or a bequest to his or her spouse shall
be void unless the will is also attested by at least two additional
competent and independent witnesses, in which case the bequest shall
be valid."

"Competent" means that the witnesses are not minors or persons of
unsound mind and "independent" means that the witnesses are not
beneficiaries under the will.

In Re Estate of Bravda (1968) 1WLR 479 the testator's will was
witnessed by two witnesses and the testator's two daughters. The court
held that the will was invalidly attested as the daughters' signatures
had not been attested further.

The rationale, besides the fact that the law requires it, is the
suspicion that such execution arouses. It, as a result of such
execution becomes hard to know whether the testator signed the will
out of voluntary will.

Conclusion

The four vitiating factors that may fail testamentary gifts have been
amply analyzed here above. Basically these are fraud, suspicious
circumstances, coercion or undue influence and improper attestation as
required by the Law of Succession Act of Kenya. These factors come in
handy when one needs to challenge a gift in a will or even to help
avoid the pitfalls they present in drafting and executing a will.