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High CourtDismissedNot stated in the judgment (Application dated 16th March 2016)· [2019] KEHC 9163 (KLR)

GEORGE KOOME MURITHI v LILLIAN REGERIA NKARICHIA

High Court of Kenya
5 March 2019
FGF. Gikonyo
920 words in judgment
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The bottom line

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To successfully challenge an inheritance grant based on a hidden marriage, you must provide specific, verifiable evidence, not just general claims.

What this practically means

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Executive summary

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This was an application dated 16th March 2016 seeking revocation of a grant of representation issued on 20th August 2013 by the High Court at Meru, brought under Sections 44, 76 and 73 of the Law of Succession Act. The Applicant, Lillian Regeria Nkaricha, supported by her affidavit, alleged that the grant was obtained fraudulently by false statement and concealment because the petitioner failed to disclose that she was married to the deceased under customary law. The 1st Petitioner opposed, denying any marriage between the Applicant and the deceased, relying on the gazettement of the cause with no objection, the Chief's letter of introduction from Ntima Location, the eulogy and obituary, and a marriage certificate showing the deceased's Christian marriage to Tsillah Karegi on 28th August 1958. Parties canvassed the application by written submissions. The court framed the issue as whether the Applicant was a wife of the deceased for succession purposes, holding that if she proved the marriage she would stand in equality with the petitioner. The court found the Applicant's evidence wanting: she relied only on a Chief's letter from Taita Location lacking details of the marriage, did not state the year of marriage, consummation or cohabitation, and called no witnesses to the ceremony. Weighing this against the petitioner's documentary evidence, the court held the Applicant failed to prove she was a wife, dismissed the application, and ordered each party to bear own costs. Judgment delivered on 5th March 2019 by F. Gikonyo J.

Key legal issues

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01

Whether the Applicant proved a customary marriage to the deceased

Holding

The Applicant failed to prove she was a wife of the deceased; the application for revocation was dismissed

Reasoning

The Applicant relied only on a Chief's letter from Taita Location, which lacked details of the marriage, the date, domicile, ceremony, cohabitation or the relevant custom. No witnesses to the ceremony were called. Against this, the petitioner produced a marriage certificate showing the deceased married Tsillah Karegi on 28th August 1958, a Chief's letter from Ntima Location, and the eulogy and obituary. The court was not satisfied to revoke the grant.

p. 2
02

Legal threshold for revocation of a grant under Section 76 of the Law of Succession Act

Holding

A grant may be revoked if proceedings were defective in substance, the grant was obtained fraudulently by false statement or concealment, or by an untrue allegation of an essential fact

Reasoning

The court set out Section 76 of the Law of Succession Act as the governing threshold, then assessed whether the Applicant's claim that she was a concealed wife of the deceased met it. Since the marriage itself was unproven, the alleged concealment could not found revocation.

p. 1

Legal principles established

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  • A party alleging a customary marriage for succession purposes bears the burden of proving it, and should call witnesses to the ceremony and give details of the custom

Court orders

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  1. 1.The application for revocation of the grant dated 16th March 2016 is dismissed
  2. 2.Each party to bear own costs

Authorities

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Legislation

  • Law of Succession ActSection 44
  • Law of Succession ActSection 76
  • Law of Succession ActSection 73
  • Law of Succession ActSection 46
  • Evidence Act Cap 80Section 51
  • Probate & Administration RulesRule 64

Cases cited (5)

  • Succession Cause No. 1935 of 2003 In the matter of the estate of Mwaura Gichicio Mburu (deceased)
  • Lewis Karungu Waruiri v/s Moses Muriuki Muchiri

    Standard of proof - cited by the petitioner on the applicant's failure to establish her claim

  • Britestone Pte Ltd v/s Smith & Associates for East Ltd

    Standard of proof - cited by the petitioner

  • Naomi Wangechi Munene & Anor v/s Dorcas Wanjiru Gitonga
    [2016]

    Standard of proof - cited by the petitioner

  • In re Estate of James Meme Anampiu (Deceased)
    [2018] eKLR

    Requirement to call witnesses to a customary marriage ceremony

Jurisdiction invoked
Sections 44, 76 and 73 of the Law of Succession Act (revocation of grant of representation)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "GEORGE KOOME MURITHI v LILLIAN REGERIA NKARICHIA", Case Analysis (2019). Not stated in the judgment (Application dated 16th March 2016). Source:

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