Johnny Nyaga Kagau & 1 other v Philis Wanjue Kagau & 1 other

The Court reaffirmed the doctrine of presumption of marriage arising from prolonged cohabitation and general repute. The presumption is a question of fact, does not create a marriage, and is independent of whether customary rites were performed. The deceased treated the respondent as his wife publicly and privately, executed a joint affidavit of marriage in 1987, and transferred properties to her during his lifetime. The appellants produced no cogent and compelling evidence to rebut the presumption, and the alternative plea that she was an employee was implausible given the familial interdependence.

Dependency under the Act is not limited to biological parentage. The deceased acknowledged and maintained the children, procured birth certificates, and played a parental role. The DNA test was inconclusive due to embalming chemicals, and the appellants adduced no evidence to challenge the respondent's assertions. Inconsistencies in testimony about paternity did not outweigh the evidence of the deceased's treatment of the children as his own and his voluntary assumption of permanent responsibility.

Failure to disclose all legal heirs constitutes a valid ground for revocation of a grant, and fraudulent intent need not be proved. However, Section 76 empowers the court to revoke a defective grant, and where the omission does not affect substantive validity, an amendment suffices. The High Court's approach accounted for all rightful beneficiaries without delaying administration of the estate, and the appellants' argument for outright revocation had no merit given the judicial finding identifying the beneficiaries to be included.

Although Section 42 requires gifts inter vivos to be considered in distribution, the High Court reserved the issue of distribution for the High Court in Embu. The Court of Appeal would be remiss to descend into distribution at this stage since no certificate of confirmation is before it; only upon the filing of a confirmation application can the question be appealed. The Court therefore declined to decide whether the gifts should be brought into hotchpot.

The High Court erroneously stated that no submissions had been filed, but the principles of fair hearing require that pleadings and evidence be considered. Where the final determination rests on clear factual findings drawn from viva voce evidence, failure to mention submissions does not automatically defect a judgment. This Court, sitting on a first appeal, discharged its duty to reconsider the evidence, evaluate it, and reach its own decision, and expressly considered the appellants' submissions dated 5th September 2016.