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Court of AppealPartially AllowedCivil Appeal No. 132 of 2017· [2018] KECA 762 (KLR)

Eva Naima Kaaka & another v Tabitha Waithera Mararo [2018] KECA 762 (KLR)

Court of Appeal of Kenya
2 March 2018
RNR.N. NambuyePKP.O. KiageAMA.K. Murgor
4,388 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal ruled that a woman who lived in the deceased's rental flat was not his wife, but his biological daughter must inherit as a dependant.

What this practically means

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Executive summary

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This was a first appeal against a High Court ruling (Nyakundi, J, 13 March 2017) revoking a grant of letters of administration in the estate of Nicholas Kaaka Kapore and finding that the respondent, Tabitha Waithera Mararo, was the deceased's wife and a dependant. The Court of Appeal (Nambuye, Kiage and Murgor, JJ.A) framed three issues: whether a Maasai/Kikuyu customary marriage was proved, whether cohabitation raised a presumption of marriage, and whether Waithera and the minor TNK were dependants under section 29 of the Law of Succession Act. Re-evaluating the evidence, the Court held that no valid customary marriage existed because the ngurario - the slaughtering of a ram, the ceremony's central feature - never took place; the family had even declined a request to slaughter a goat. Nor did a presumption of marriage arise: there was no proof of long cohabitation or acts of general repute, and Waithera's residence in a rental flat on the deceased's property pointed to a landlord-tenant relationship that rebutted any presumption. The evidence showed at most a casual affair that produced TNK. Consequently Waithera was not a dependant or beneficiary, but TNK - confirmed by DNA and conceded by the appellants to be the deceased's daughter - must be included as a dependant, which justified the revocation of the grant. Waithera's appointment as co-administrator was upheld only as trustee for the minor's interests. The appeal succeeded partially; each party was ordered to bear their own costs.

Key legal issues

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01

Whether a Maasai/Kikuyu customary marriage between Waithera and the deceased was proved

Holding

No valid customary marriage was established because the ngurario - the slaughtering of a ram or goat, the central feature of the ceremony - did not take place; the family even declined a request to slaughter a goat

Reasoning

The Court set out the essentials of a Kikuyu customary marriage from Cotran's Casebook and Gituanja vs Gituanja, including capacity, consent, ngurario, ruracio and commencement of cohabitation. On re-evaluation, the evidence showed no ram or goat was slaughtered; the family declined the requested slaughter. Waithera also gave no particulars of the ceremony and her own evidence was that there was no marriage. The essentials were therefore unmet and the trial judge erred in finding a customary marriage.

p. 4
02

Whether cohabitation gave rise to a presumption of marriage

Holding

No presumption of marriage arose: there was no proof of long cohabitation or acts of general repute, and Waithera's residence in a rental flat owned by the deceased negated a marital relationship

Reasoning

Naima's unrebutted evidence was that the deceased lived with her at Nkoroi and that Waithera was a tenant and barmaid known to the family. Waithera admitted living in a rental flat on the deceased's property, an arrangement inconsistent with marriage. Her relatives' testimony covered only the 2008/2011 visits; no photographs, gifts, family visits or witnesses to cohabitation were produced. The evidence showed at most a casual affair culminating in the birth of TNK.

p. 5
03

Whether Waithera and TNK were dependants under section 29 of the Law of Succession Act

Holding

Waithera, not being a wife, was not a dependant or beneficiary; TNK, confirmed by DNA and conceded by the appellants to be the deceased's daughter, is a dependant and must be included

Reasoning

Section 29(a) covers the wife or wives and children of the deceased whether or not maintained by him. Since no marriage or presumed marriage existed, Waithera fell outside section 29. The minor's paternity was confirmed by DNA evidence, acknowledged by Naima, and conceded in submissions; she must therefore be included as a dependant and beneficiary, which justified the revocation of the grant that had omitted her.

p. 5
04

Whether the appointment of Waithera as co-administrator should stand

Holding

The appointment stands, but only as trustee representing the minor TNK's interests, per the court's final discretion under section 48 of the Law of Succession Act

Reasoning

Section 48 gives the court final discretion as to the persons to whom a grant should be made in the best interests of all concerned. The lower court's order including Waithera as co-administrator was upheld, but conditioned: her role is to protect and represent the interests of the minor child as trustee, not as a beneficiary or wife in her own right.

p. 5

Legal principles established

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  • A valid Kikuyu customary marriage requires proof of its essential elements, including the ngurario (slaughtering of a ram); without the central feature of the ngurario ceremony no valid customary marriage comes into existence
  • A presumption of marriage requires proof of two conjoined factors: long cohabitation and acts of general repute
  • Cohabitation in a rental arrangement between landlord and tenant negates, rather than supports, a presumption of marriage
  • On a first appeal, the Court must re-evaluate the evidence and make its own conclusions, and will not interfere with findings of fact unless based on misapprehension of the evidence or a wrong principle
  • Affidavit evidence of a deponent who does not testify and is not cross-examined is inconclusive and unreliable

Court orders

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  1. 1.Finding that the respondent was not the deceased's wife, either through a customary marriage or by presumption of marriage
  2. 2.Finding that the respondent was not a dependant within the meaning of section 29(a) of the Law of Succession Act and not entitled to be included as a beneficiary of the estate
  3. 3.Ordering that TNK be included as a dependant and beneficiary in the petition for letters of administration of the deceased's estate
  4. 4.Affirming the revocation of the letters of administration issued on 19th September 2016
  5. 5.Upholding Waithera's appointment as co-administrator solely as trustee representing the minor TNK's interests
  6. 6.Each party to bear their own costs

Authorities

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Legislation

  • Law of Succession Actsection 29(a)
  • Law of Succession Actsection 48

Cases cited (5)

  • Sumaria and Another vs Allied Industries Ltd
    [2007] eKLR
  • Gituanja vs Gituanja
    [1983] KLR 575
  • Phylis Njoki Karanja & 2 others vs Rosemary Mueni Karanja & another
    [2009] eKLR
  • Mary Njoki vs John Kinyanjui Mutheru
    [1985] eKLR
  • Hottensia Yahwe
On appeal from
High Court of Kenya at Nairobi
HCSC No. 19 of 2016
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (Constitution of Kenya, Article 164) over the High Court's ruling in a succession matter under the Law of Succession Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (20)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Eva Naima Kaaka & another v Tabitha Waithera Mararo [2018] KECA 762 (KLR)", Case Analysis (2018). Civil Appeal No. 132 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/762/eng@2018-03-02

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.