Beatrice Adhiambo Sijenyi v Josephine Kapukha Khisa & 2 others [2018] KECA 579 (KLR)
The bottom line
#Kenya's Court of Appeal redistributed a deceased man's estate, confirming cohabiting partners can inherit as wives but adult children and unproven partners cannot claim as dependants.
What this practically means
#Executive summary
#Key legal issues
#Whether Josephine's marriage to the deceased was dissolved before his death
The marriage subsisted at the death of the deceased; the burden of proving dissolution lay on those asserting it and there was no decree nisi or absolute
The marriage under the African Christian Marriage and Divorce Act was monogamous and governed by the Matrimonial Causes Act. Divorce proceedings were contested and could not have been finalised between the dates on the record; no decree nisi or absolute was proved. Josephine's adulterous remarriage was a nullity, and under the proviso to section 10(2) of the Matrimonial Causes Act the court was not bound to grant her a divorce.
Whether Zuweina was a wife of the deceased entitled to inherit
A presumption of marriage arose from about six years of open cohabitation, and she qualified as a wife under section 3(5) of the Law of Succession Act despite the deceased's lack of capacity
There was no known system of marriage by affidavit; a Bukusu customary marriage required cogent expert evidence which was absent. However, long cohabitation with holding out as husband and wife raised a common law presumption of marriage supported by section 119 of the Evidence Act. The Marriage Act could not apply retrospectively. Being presumed married in a polygamous setting, Zuweina qualified under section 3(5), though her acquisition of jointly-owned properties by survivorship had to be accounted for.
Whether Zuweina's three children were dependants of the deceased
They were not; being adults, they did not qualify as dependants under sections 29 or 26 of the Law of Succession Act
Section 29(b) includes step-children and children whom the deceased had taken into his family as his own, but only where they were being maintained by the deceased immediately prior to his death. The court found the deceased had taken the children into his family, but as they were all over eighteen at his death they fell outside the constitutional definition of a child and could not qualify as dependants.
Whether Esther was a wife or dependant of the deceased
She was neither; she proved only a relationship resulting in children, and the trial judge misapplied section 29 in treating her as a dependant
Esther produced no evidence of a marriage ceremony or cohabitation holding out as husband and wife, so she could not qualify under section 3(5). Intermittent assistance from the deceased was merely acknowledgement of parental responsibility towards their daughter. The consent recognizing her three daughters as beneficiaries stood, but no direct distribution to Esther was justified.
Whether Josephine, though a widow, should receive full inheritance
Following Irene Njeri Macharia, she deserved only a token distribution in light of her conduct in abandoning the deceased
Although legally still a wife, Josephine abandoned the deceased and lived with another man, and could not claim contribution to property developed in her absence. The court, exercising its equitable discretion in distribution and guided by the Macharia precedent permitting a token to a widow whose circumstances warrant it, allocated her limited properties.
The propriety of the trial judge's costs order in favour of Khasoa & Company Advocates
The order was set aside; advocates' costs to be met equally from a designated fund and otherwise agreed or taxed
There was no agreement that Khasoa & Company's costs would be paid from the estate, no justification for the amount, and the advocate could not ride on Clive's status as administrator since Clive was pursuing personal interests. All advocates contributed to resolving the dispute, so their costs should be agreed or taxed and met equally from the designated Kshs.3 million.
Legal principles established
#- Where the fact of a marriage is not in dispute, the burden of proving dissolution of the marriage lies on the party alleging that it no longer exists
- A customary marriage can only be established through cogent evidence of the customary law requirements and proof that the requisite rites were performed; an affidavit of marriage alone is insufficient
- Under section 3(5) of the Law of Succession Act, a woman married under a system of law permitting polygamy is a wife for purposes of the Act even where the husband had no capacity to contract the marriage because of a subsisting monogamous marriage
- A dependant under the Law of Succession Act has no automatic entitlement to the deceased's property but only a right to reasonable provision from the estate
- Death gratuity payable by a deceased's employer is payable to the estate and distributable as an asset of the estate, distinct from a dependant's pension
- On a first appeal, the Court of Appeal must reconsider and evaluate the evidence and draw its own conclusions, though making due allowance for not having seen or heard the witnesses
Court orders
#- 1.The order of the trial judge on costs was set aside; Kshs.3 million from APA Insurance Group Life to be set aside to cater equally for all the advocates' costs
- 2.The costs of all parties' advocates in this Court and in the High Court to be either agreed or taxed
- 3.The distribution made by the trial judge was set aside and the estate redistributed: Josephine Khisa to receive Bungoma/Naitiri/1830 (jointly with Clive) and Ndivisi/Khalumuli/2102
- 4.Zuweina Salim Mohammed to receive all household items in the Jamhuri house, Nairobi/Block 63/440, Dagoreti/Riruta/370 (Block 3 - six one bedroomed units), 20% KENHA gratuity, shares in Ufundi Sacco of Kshs.172,481/=, Kshs.802,000/= (APA Insurance group life) and MV Rush KBL 912H
- 5.Clive Khisa to receive Dagoreti/Riruta 370 (Block 1), Bungoma/Naitiri/1830 (jointly with Josephine), KBK 948T, 8,500 Safaricom shares, Kshs.1,000,000/= (APA Insurance group life), all monies in specified bank accounts, and 15% KENHA gratuity
- 6.Brenda Khisa to receive Dagoreti/Riruta/S.370 (Block 2), 15% gratuity and Kshs.1,000,000/= (APA Insurance group life)
- 7.A, K & J K (to be held in trust by Esther M. Kithome) to receive Dagoreti/Riruta/S.370 Block 4, KVA 897Y, shares in National Bank of Kenya, Kshs.2,000,000/= from APA group life and 30% KENHA gratuity
- 8.E K to receive Dagoreti/Riruta S/370 Block 3 (6 one bedroomed units, 1 bedsitter and 2 single rooms), Kshs.1,000,000/= from APA Insurance and 20% KENHA gratuity
- On appeal from
- High Court of Kenya at Bungoma
- HC. Succ. Cause No. 53 of 2014 (Bungoma P&A 53 of 2014)
- Jurisdiction invoked
- First appellate jurisdiction under section 78 of the Civil Procedure Act and Rule 29(1) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (4)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Musela v Wambui & another & 3 others (Civil Appeal E504 of 2020) [2024] KECA 679 (KLR)[2024] KECA 679 (KLR)14 Jun 2024
- In re Estate of Robinson Wangome Thiga (Deceased) - Becky Njoki Thiga v Loice Nelima Thiga, Robinson Wangome Thiga & Geoffrey Wachira Thiga[2019] KEHC 11892 (KLR)28 Oct 2019applied
- In re Estate of the Deceased - Dorcas Wanjiru Mwangi (Administrator) v Jecinta Hito Grishon, Joycefine Wambui & Mary Wamaitha Mwangi (Objectors)[2019] KEHC 7509 (KLR)3 May 2019applied
- In re Estate of Fredrick Mungatia M’mbiriti (Deceased) - Jeniffer Kaguri Mungatia v Janet Kanana Mungatia (Protest)[2019] KEHC 9941 (KLR)21 Feb 2019applied
Cite this brief
#Cite this brief
Caselaw, "Beatrice Adhiambo Sijenyi v Josephine Kapukha Khisa & 2 others [2018] KECA 579 (KLR)", Case Analysis (2018). Civil Appeal No. 20 of 2015 (consolidated with Civil Appeal No. 28 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/579/eng@2018-04-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.