Musela v Wambui & another & 3 others (Civil Appeal E504 of 2020) [2024] KECA 679 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that women in long 'come we stay' relationships and their children count as lawful heirs in succession disputes.
What this practically means
#Executive summary
#Key legal issues
#Whether Grace and Magdalene were presumed wives of the deceased despite the subsisting monogamous statutory marriage to Jedidah
Yes. Long cohabitation, siring of acknowledged children and holding out as husband and wife give rise to a presumption of marriage, which the appellant failed to rebut; the trial court had sufficient evidence of the unions.
The Court adopted Selle v Associated Motor Boat Co. on its retrial role and the line of authority including Hortensia Wanjiku Yawe, Irene Njeri Macharia and MNM v DNMK establishing that presumption of marriage is a question of fact arising from long cohabitation and general repute. Grace cohabited with the deceased from 1972 and sired four children; Magdalene from 1977 with acknowledged children. The presumption was not displaced.
Whether women in 'come we stay' marriages qualify as wives under section 3(5) of the Law of Succession Act
Yes. The Court faulted the trial judge for holding section 3(5) inapplicable and held that section 3(5) must be read with Articles 20 and 27 of the Constitution so that its rationale extends to women in 'come we stay' arrangements.
Section 3(5) was enacted to remedy the injustice suffered by women taken as wives by men already in monogamous marriages. The Court held that applying Articles 20(3) and 27(1) of the Constitution, the same circumstances apply to women in long cohabitation, and refusing such recognition would smack of injustice and discrimination against Kenyan women in such situations.
Whether the children of Grace and Magdalene, including those sired outside the unions, were children and heirs of the deceased
Yes. Children born during the presumed unions are heirs under section 29 of the Act, and there was sufficient evidence by conduct that the deceased took in the children sired outside the unions as his own.
The Court found that affidavits, statements on oath and photographs showed the deceased treated the wives' children, including those sired outside the unions, as his own. The trial judge's finding was supported by evidence and the Court saw no reason to depart from it.
Whether the trial judge interfered with the deceased's testamentary freedom by permitting dependency applications under section 26 of the Act
No. The judge merely restated the law; section 26 permits the court to make reasonable provision for dependants not adequately provided for by a will, and testamentary freedom must be exercised responsibly.
Relying on Elizabeth Kamene Ndolo v George Matata Ndolo, the Court held that while section 5 of the Act confers unfettered testamentary freedom, that freedom must be exercised with responsibility toward dependants, as recognized by section 26. The trial judge was systematic in deferring dependency claims to the confirmation stage and cannot be faulted.
Legal principles established
#- Women in 'come we stay' marriages or long cohabitation arrangements fall within the mischief of section 3(5) of the Law of Succession Act, read with Articles 20 and 27 of the Constitution, and are wives for purposes of succession
- Children born to a woman during a presumed marriage with the deceased are children of the deceased for purposes of succession under section 29 of the Act unless proved to the contrary
- On a first appeal, the Court of Appeal reconsiders and evaluates the evidence afresh while making allowance for not having seen or heard the witnesses
Court orders
#- 1.The appeal is dismissed
- 2.Each party to bear their own costs
- On appeal from
- High Court
- Not stated in the judgment text provided
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Law of Succession Act appellate framework (specific provision not cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Sudi v Khaemba (Environment and Land Miscellaneous Case E012 of 2025) [2026] KEMC 602 (KLR)[2026] KEMC 602 (KLR)6 Aug 2026followed
- Waita & another v Waita & another (Civil Appeal E030 & E032 of 2023 (Consolidated)) [2025] KECA 689 (KLR)[2025] KECA 689 (KLR)11 Apr 2025applied
Cite this brief
#Cite this brief
Caselaw, "Musela v Wambui & another & 3 others (Civil Appeal E504 of 2020) [2024] KECA 679 (KLR)", Case Analysis (2024). Civil Appeal No E504 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/679/eng@2024-06-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.