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High CourtPartially AllowedIsiolo Succession Cause No. 3 of 2018· [2020] KEHC 2089 (KLR)

In re Estate of JMM (Deceased)

High Court of Kenya
29 October 2020
AMA. Mabeya
2,354 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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Even if you are not legally married, a former wife or dependent child can still receive a share of the deceased's estate under Kenyan law.

What this practically means

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Executive summary

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This is a first-instance succession determination in the estate of JMM, who died in January 2018. PKM and EMM petitioned for letters of administration; SMM sought revocation of the grant and claimed to be the deceased's widow under Meru customary law, while JKM, the deceased's divorced wife, sought provision from the estate. The matter proceeded by viva voce evidence with affidavits cross-examined. The court held that JKM, as a former wife, is a dependant under sections 26 and 29 of the Law of Succession Act entitled to provision, but that her contribution to acquisition of estate properties was irrelevant in a section 26 application; she received a property adjacent to her school. PKM and KGK, though not biological sons of the deceased, were held to be dependants and beneficiaries because the deceased maintained, educated and provided dowry for them; the court preferred this tested evidence over the deceased's untested depositions in divorce and matrimonial property proceedings. SMM's claim to wifely status failed: the alleged customary marriage was not proved owing to materially contradicted dowry evidence, and her roughly 29-month cohabitation was too short and unpleaded to raise a presumption of marriage. The estate was distributed equitably, with special provision for the deceased's four-year-old son BKM, a disputed property set aside pending another suit, and one plot distributed by consent. Each party was ordered to bear own costs.

Key legal issues

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01

Whether a former wife is entitled to provision from the estate

Holding

JKM, the divorced wife, is a dependant under section 29 and entitled to provision under section 26

Reasoning

Section 29 expressly includes a former wife as a dependant. There was no dispute that the interested party was a former wife, having divorced the deceased on 5/11/2014. The court therefore had jurisdiction under section 26 to make provision for her from the estate, and did so by distributing a property adjacent to her school to her.

p. 2
02

Whether stepchildren maintained by the deceased are beneficiaries

Holding

PKM and KGK, sons of the interested party from a previous marriage, were dependants and beneficiaries

Reasoning

Though not born of the deceased, the evidence tested under cross-examination showed the deceased maintained, educated and provided dowry for them without discrimination. The court preferred this tested evidence over the deceased's untested depositions in divorce and matrimonial property proceedings, which were made during a bitter struggle.

p. 3
03

Whether SMM proved a customary law marriage

Holding

The alleged Meru customary marriage was not proved; SMM was not a wife or beneficiary

Reasoning

Her evidence on dowry payment (amount, occasion, presence of Mwati) was materially contradicted by her own witness. The customs were not proved, no Mwati was given, and the cohabitation of about 29 months was too short and unpleaded as a basis for presumption of marriage.

p. 3
04

Mode of distribution

Holding

Equitable distribution considering the young beneficiary of 4 years and the values of the properties

Reasoning

The principle behind distribution under the Act is equity. Giving the 4-year-old only a Kshs.1 million plot while three beneficiaries shared properties valued over Kshs.11 million would be a grave injustice. The court adjusted the distribution accordingly and set aside disputed property pending another suit.

p. 3

Legal principles established

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  • A former wife is a dependant entitled to provision under section 26 of the Law of Succession Act
  • A mere living together resulting in a child does not amount to marriage; untested depositions of a deceased carry less weight than tested viva voce evidence
  • Contribution to acquisition of estate properties is not a consideration in a section 26 dependant's provision application

Court orders

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  1. 1.Distribution of the estate: Plot No. [...] (Now [...]) equally between BKM (EMM to hold in trust until age 18) and PKM
  2. 2.Plot No. [...] Zone B (Formerly [...]) distributed equally to EMM, JKM and KGK
  3. 3.Kiirua/Naari/[....] & KBJ [....] to BKM to be held in trust by SMM
  4. 4.Plot No. [...] & KBN [....] to JKM
  5. 5.Plot No. Light Density Zone A County Council to AHM (by consent)
  6. 6.Property under dispute in another suit set aside to await the final decision of the court in that suit
  7. 7.Each party to bear own costs

Authorities

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Legislation

  • Law of Succession ActSection 26
  • Law of Succession ActSection 28
  • Law of Succession ActSection 29
  • Marriage Actgeneral
  • Matrimonial Properties Actgeneral

Cases cited (1)

  • John Gituma M'raiji & Another v. Elizabeth Kamwitu
    [2017] eKLR

    Cited by the applicant for the proposition that a deceased's deposition should be considered; court found no such holding by Gikonyo J

Jurisdiction invoked
Law of Succession Act (Cap 160), Sections 26, 28 and 29

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, "In re Estate of JMM (Deceased)", Case Analysis (2020). Isiolo Succession Cause No. 3 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/kehc/2020/2089/eng@2020-10-29

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