Miriam Njoki Muturi v Bilha Wahito Muturi (Civil Appeal 168 of 2009) [2013] KECA 324 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that a woman in a customary union is a legal wife for inheritance, even where her husband also had a statutory marriage.
What this practically means
#Executive summary
#Key legal issues
#Whether cohabitation coupled with partial payment of dowry established a customary marriage despite the deceased's subsisting statutory marriage
Yes. The appellant's relationship fell within section 3(5) of the Law of Succession Act, and on the totality of the evidence she was proved on a balance of probabilities to be the second wife of the deceased.
The Court found uncontroverted evidence of continuous cohabitation from 1994 until the deceased's death, confirmed by the deceased's brother and admitted by the respondent, recognition by the chief as a second wife, and payment of some dowry. The trial judge's insistence on a stated amount of dowry was an error since no fixed amount is payable. Section 3(5) expressly covers women in such unions notwithstanding a prior monogamous marriage.
Whether the absence of a stated dowry amount defeated the claim of customary marriage
No. There is no standard set amount payable for dowry; it may be paid in installments or even after a party's death.
Following Mary Wanjiru Githatu v Esther Wanjiru Kiarie, the Court held that cohabitation, provision of residence and maintenance are essentials of a Kikuyu customary marriage, and dowry may be paid in installments or even after death. The trial judge therefore misdirected herself in rejecting the claim merely because the dowry amount was not quantified.
How the estate of a person with a statutory wife and a customary wife should be administered and distributed
Letters of administration should issue jointly to both widows and the estate distributed under section 40 of the Law of Succession Act governing polygamous households.
Having found the appellant to be a wife, the Court set aside the confirmation orders which had allocated the entire estate to the respondent alone, ordered a joint grant, and directed distribution under section 40. The question of which of the appellant's children belonged to the deceased was left for verification by the High Court before confirmation.
Legal principles established
#- A woman married under a system of law permitting polygamy is a wife for purposes of the Law of Succession Act notwithstanding her husband's previous or subsequent monogamous marriage, and her children are children within the meaning of the Act
- Courts may presume marriage from prolonged cohabitation under section 119 of the Evidence Act, and dowry need not be paid in a fixed amount or at a fixed time to sustain a Kikuyu customary marriage
- An appellate court on a first appeal must re-evaluate the evidence and arrive at its own conclusion while allowing for the fact that it did not see or hear the witnesses
Court orders
#- 1.Appeal allowed
- 2.Orders of the High Court of 14th May 2009 set aside
- 3.Grant of letters of administration to be issued jointly to the respondent and the appellant
- 4.Both parties at liberty to apply for confirmation of the grant, either jointly or severally
- 5.Appellant to provide a list of the children sired by the deceased and each party to prepare an inventory of the deceased's assets
- 6.The deceased's estate to be distributed in accordance with section 40 of the Law of Succession Act dealing with polygamous households
- 7.Each party to bear their own costs of the appeal and the suit in the High Court
- On appeal from
- High Court of Kenya at Nyeri
- H.C. Succ Cause No. 76 of 2004
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Law of Succession Act and appellate jurisdiction over the High Court in succession causes
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (9)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- In re Estate of Kungu Githutha (Deceased) - Petition by Kimama Githutha Kungu and Cross-Petition by Margaret Njoki Githutha and John Mutua Githutha[2020] KEHC 4035 (KLR)23 Jul 2020
- In re Estate of Adriano Welikhe Muliali (Deceased) - Lucas Wamalwa Welikhe & Eunice Nasimiyu Mumaraki[2020] KEHC 5037 (KLR)29 May 2020
- In re Estate of Laban Gikonyo Kamau (Deceased) - Agnes Wangechi Gikonyo & Another v Mary Wanjiru Gikonyo (Protestor)[2020] KEHC 7378 (KLR)12 Mar 2020
- In re Estate of Boniface Njenga Mweru (Deceased) - Jacinta Wangui Njenga v Lucy Nduta Njenga & Others[2020] KEHC 7700 (KLR)23 Jan 2020
- In re Estate of Ezekiel Waweru Muiruri (Deceased) - Anna Wangari Waweru v Margaret Mugure Waweru[2019] KEHC 2726 (KLR)31 Oct 2019
- In re Estate of Charles Lihasi Bidali (Deceased)[2019] KEHC 7583 (KLR)24 Apr 2019
- In the Matter of the Estate of Morris Kilonzo Musyimi (Deceased) - Priscilla Mumbua Kilonzo v Phoebe Mbeneka Kilonzo & Others[2018] KEHC 4249 (KLR)25 Sept 2018
- M N M v D N M K & 13 others [2017] KECA 172 (KLR)[2017] KECA 172 (KLR)24 Nov 2017applied
- In re Estate of Mbiyu Koinange (Deceased) - Margaret Njeri Mbiyu v David Njunu Mbiyu Koinange & 13 Others[2017] KECA 799 (KLR)24 Nov 2017applied
Cite this brief
#Cite this brief
Caselaw, "Miriam Njoki Muturi v Bilha Wahito Muturi (Civil Appeal 168 of 2009) [2013] KECA 324 (KLR)", Case Analysis (2013). Civil Appeal 168 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/324/eng@2013-05-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.