Ewn v Mnm

4. The Respondent swore a Replying Affidavit on 19/6/2023 in opposition to the application. She urges that the estate property had since been registered in the name of NWM, who was not a party to these proceedings, and thus no adverse could issue against her. While she solemnized her marriage to the deceased in church on 17/4/2010 as his 1st and only wife, her in laws refused to recognize her as such during his burial, and it was announced that the deceased died without a wife. When it became apparent that her inlaws would never let her live on the land peacefully, she exchanged it with L.R No. Kirinyaga/Gathigiriri/xxx, and insisted that the Appellant was a stranger to her. 5. Peter Gitari Mwangi filed his witness statement dated 3/8/2023 restating that the deceased had no other wife except the Respondent herein. 6. Upon full hearing, the trial court found the application to be without merit and dismissed it. The Appeal 7. On appeal, the Appellant filed her memorandum of appeal on 3/8/2024 raising 9 grounds as follows: 1. The trial Magistrate erred in law and fact finding the appellant’s application to be without merit. 2. The learned trial Magistrate misdirected herself in failing to find that the respondent gave a false statement or an untrue allegation of fact in obtaining the grant. 3. The trial Magistrate erred in fact and law by finding that the process used to obtain the grant was not defective therefore failing to revoke it. 4. The trial magistrate erred in fact and law by failing to appreciate the evidence tendered by the appellant with regards to her marriage as the first wife. 5. The trial Magistrate erred in fact and law in finding the Respondent to be the sole wife of the deceased. 6. The learned trial Magistrate erred in fact and law by finding that the appellant has failed to prove entitlement and locus to the deceased estate. 7. The trial Magistrate erred in fact and law by failing to recognize the appellant as a beneficiary whose rights are affected by the Respondent’s sale of suit land. 8. The trial Magistrate erred in fact and in law by finding that the Respondent was to hold land in trust only for LKM and LWM as the only beneficiaries. 9. The learned trial Magistrate erred in fact and in law by failing to find that the sale of land by the Respondent, who was to hold it in trust, was improper and illegal. Duty of the court 8. This being a first appeal, this court is duty bound to delve at some length into factual details and revisit the facts as presented in the trial court, analyse the same and arrive at its own independent conclusions, but always remembering that, the trial court had the advantage of seeing the witnesses testify. (See Selle v Associated Motor Boat Co. & others [1968] E.A. 123). Oral Evidence 9. PW1 EWN, the Appellant herein, adopted her affidavits dated 12/6/2022 and 9/6/2023 as her evidence in chief, and produced the documents filed therewith as exhibits. She testified that, “I am in https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18163/eng@2025-11-27 2

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court over my late husband’s shamba. He was EMM. I found that he had sold land. I have his child. I got married to E in 1989. We lived in the suit land together. I got a child in 1990. We lived together again after that for 7 years then separated. We had gone to my parents to pay dowry twice. At first, we took sodas then after I got a child we took goats. I learnt of his death in 2020. I went for a vigil once due to Covid. I was called to be informed that the suit land was sold. I had its Title. I was shocked I went and did search. I could not understand how it was sold.” 10. On cross examination, she stated that, “I had seen MN. She was a wife to my husband. They did a church wedding. I have seen the documents she filed in court. She states I am not a wife. I was married in 1989. It was a customary wedding. I know how that happens during dowry payment. I have not specified when exactly the dowry ceremony happened. I had not said when Ngurario happened. I have not attached photographs of myself and deceased as a family in any family gathering. I did not stop the church wedding. Deceased died in 2020 I was not involved in his burial. I attended one vigil. I did not attend his burial. PWI referred to photograph 5. I have not indicated I attended a vigil. I am not being used by in-laws of the respondent for them to get the land and give me a portion. I know a eulogy. I do not know that I was not mentioned as a wife to the deceased. I am aware that the chief did not name me as a wife in the introductory letter. I gave my child’s name to my advocate. I do not know if he indicated his name in my documents. I did not bring any document to show that the child belongs to the deceased. I have not brought any document to show the deceased used to maintain the child. I do not have an independent witness who I have called as a witness to come and say they know me as wife. I have forgotten the shamba name and number that I want to have a share of. I am aware succession was done and the respondent sold the land to someone who sold it to another. I have not sued any of the buyers. I have no case with them.” 11. In re-examination, she stated that, “Elders went to our home and paid dowry. I do not have photographs of me the deceased. I did not go to oppose the wedding. I had a child so did the respondent. I saw the deceased’s eulogy. I did not bother to get it I was busy and angry. I do not know what it says. The chief was not informed of me to indicate me as a wife. I have a child with the deceased. He is Bernard Mwangi. I am ready for DNA. Deceased re-established a relationship with me after the respondent left him. He used to maintain the child. He paid school fees. I do not have those slips with me. I have independent witnesses who know me as a wife. I have the original Title deed for the land but I do not remember its number. I do not have a case against Nancy the current owner. I just don’t understand she purchased it.” 12. PW2 LWM, adopted her affidavit dated 14/8/2023 as her evidence in chief. She testified that, “I know EM had 2 wives. I am his mother. M did not tell us when she was filing the succession cause. E (PW1) is a wife to my son. The 1st one. Dowry was paid for Eunice. We took alcohol 4 crates we also took goats 2 of them (Mwati and Harika). I was with my son BM.” 13. On cross examination, she stated that, “M is E’s 2nd wife. She has the children with him. E was E’s wife. I cannot remember from when. She stayed at my home for few days then went to Mwea for business. I am the one that signed E’s burial permit. We made his eulogy to say he had no wife or children. I know E at the time as a wife. I know E and Mercy did a church wedding in 2010 at ACK Rwambiti. I did not object to the wedding. I do not hate M. We did not harass her as a family. We did not chase her after E died. We did not chase her during the burial. I have not responded to her allegations that we harassed her. We did not recognize her as E’s wife in the Eulogy. They both had left the deceased. M had left a year before. I never took the original Title Deed. It was with E. I did not get into his house and raid it with my daughter’s and take away many documents. I do not have proof of anything E and E bought together. I cannot remember when we took dowry to E’s home. I was with Pius Ndege and Charles Mwangi. They are both dead. I do not have documents to show the dowry agreement. Nothing was https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18163/eng@2025-11-27 3

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written down. We are not using E so that we can try to get E’s land. E has the Title Deed to the land. It was E that gave it to her. It was not me. The land is still in the name of .” 14. In re-examination, she stated that, “Nothing was written during the dowry ceremony for E. We live peacefully at home. We loved M. My daughters do not stay at home. I do not know why she says we do not know her. I do not know how to read and write. I forgot what was written in the Eulogy. I made the burial arrangements and buried Eliud without his wives because none was close by. None came. It is M that demolished the house that they used to live in.” 15. PW3 Harrison Ndambiri Kariuki, adopted his affidavit sworn on 14/8/2023 as his evidence in chief. He testified that, “E’s mother, his father and my father are brothers. I knew E and he had 2 wives. We paid dowry for E. We took 2 crates of alcohol to their home. I was called for a wedding for the 2nd wife.” 16. On cross examination, he stated that, “M is E’s 2nd wife. There was a church wedding. I attended. I had no objection to the marriage. I am a relative to E’s mother. E had uncles, aunts and other relatives closer than me. Even from the E’s fathers’ side. I cannot tell why those are not the ones in court as witnesses. I was called by E’s father to take dowry to E’s home. It was a long time ago. We went as myself, PW2 her husband and another person I cannot remember. PW2 was there. She should have seen me. Dowry consists of Ruracio and Ngurario. I have not said in my affidavit that he went and paid such dowry and when that was. I went to E’s burial. Eulogy was read. It was indicated that E had no wife and children. I know that M had been chased from the home and she did not participate in the burial. I did query on this. I was told that M had left. I know Eunice was in Mwea. There was Covid. The burial could not have many people. I do not know how long Eunice stayed with E. It was sometime.” 17. In re-examination, he stated that, “We went for Ruracio around 1989. I cannot remember everyone who attended the ceremony. I remember her parents.” 18. DW1 MNM, the Respondent herein, adopted her replying affidavit sworn on 19/6/2023, as her evidence in chief, and produced the list of documents filed therewith as exhibits. She testified that, “I have never seen E. I was E’s wife. He had no other wife. The suit land now belongs to me. NWM. I own the land in Gathigiriri. I exchanged the previous land with this one for my security as ’s family did not want me. They chased me.” 19. On cross examination, she stated that, “E’s family did not want me. No one beat me. They called a meeting with the chief and village elders to oust me. I did not report that I had been ousted from my home for no reason. I applied for grant. I know his mother and where she stays. I did not involve them in the cause. I was told to stay away but continue using the land but not ask for title documents. I live in Gathigiriri. I am not married. The land belonged clan. He was given as inheritance. He did not buy it. It is ¾ acre. The land I live on now is ¼ acre. I took lesser land. DWI referred to the certificate of confirmation of grant. I do not know the consequences of disobeying court orders. I went against the orders. I transferred land I was to hold in trust for my security.” 20. In re-examination, she stated that, “I was not relating well with my in-laws. I explained myself on the court order in paragraph 7 of my affidavit. The land belonged to my husband. He was its registered owner. I did his succession as his wife.” 21. DW2 Peter Gitari Mwangi adopted his statement recorded on 3/8/2023 as his evidence in chief. He testified that, “E had one wife, M. I do not know or ever seen one E.” 22. On cross examination, he stated that, “I know E well. We live about 3 km apart. If something happens I may not know immediately. He did tell me all these things as a friend. We schooled together. I have known him for long. I have not said that M used to be harassed by PW2.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18163/eng@2025-11-27 4

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Submissions 23. The Appellant urges that she demonstrated that she was the 1st wife of the deceased, and thus his beneficiary under sections 26 and 29 of the Law of Succession Act, and cites Matheka & Another v Matheka [2005] 2 KLR 455. She faults the Respondent for transferring the estate property against the explicit court orders that required her to hold it in trust for her children. 24. The Respondent cites Mbogo and Another v Shah [1968] EA 93 and Selle and another v Associated Motor Board Company and Others (1968) EA 123, on the duty of the first appellate court. She urges that there was no evidence led to the long cohabitation between the deceased and the Appellant, which would have led to a presumption of marriage, and cites Eliud Maina Mwangi v Margaret Wanjiru Gachangi (2013) eKLR and William Kabogo Gitau v George Thuo & 2 Others [2010] 1 KLR 526. Analysis and Determination 25. From the grounds of appeal, the singular issue for determination is whether grant was obtained by concealment of the Appellant’s identity as the 1st wife of the deceased. 26. In Kimani Gituanja v Jane Njoki Gituanja [1983] eKLR, the Court of Appeal (Chesoni AG. JA) observed that: “ The existence of a marriage is a matter of fact which is proved with evidence.” 27. The Gituanja decision was followed in Eliud Maina Mwangi v Margaret Wanjiru Gachangi (2013) eKLR, cited by the Respondent, where it was held that: “ Specifically on proof of a customary marriage, this Court in Gituanja v Gituanja (1983) KLR 575, held that the existence of such a marriage is a matter of fact which is proved with evidence. In that case the court found that the evidence adduced had proved a valid marriage under Kikuyu customary laws as was evidenced by the slaughter of the “ngurario”.” 28. The Appellant testified that, “I got married to E in 1989. We lived in the suit land together. I got a child in 1990. We had gone to my parents to pay dowry twice. At first, we took sodas then after I got a child we took goats.” On cross examination, she stated that, “I had seen MN. She was a wife to my husband. They did a church wedding. I was married in 1989. It was a customary wedding. I know how that happens during dowry payment. I have not specified when exactly the dowry ceremony happened. I had not said when Ngurario happened. I have not attached photographs of myself and deceased as a family in any family gathering. I did not stop the church wedding. I know a eulogy. I do not know that I was not mentioned as a wife to the deceased. I am aware that the chief did not name me as a wife in the introductory letter. I gave my child’s name to my advocate. I did not bring any document to show that the child belongs to the deceased. I have not brought any document to show the deceased used to maintain the child. I do not have an independent witness who I have called as a witness to come and say they know me as wife. I have forgotten the shamba name and number that I want to have a share of. I am aware succession was done and the respondent sold the land to someone who sold it to another.” 29. The mother of the deceased herein testified that, “I know EM had 2 wives. I am his mother. E (PW1) is a wife to my son. The 1st one. Dowry was paid for E. We took alcohol 4 crates we also took goats 2 of them (Mwati and Harika).” On cross examination, she stated that, “M is E’s 2nd wife. She has the children with him. E was E’s wife. We made his eulogy to say he had no wife or children. I know E and M did a church wedding in 2010 at ACK Rwambiti. I do not have proof of anything E and E bought together. I cannot remember when we took dowry to E’s home. I was with Pius Ndege and Charles https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18163/eng@2025-11-27 5

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Mwangi. They are both dead. I do not have documents to show the dowry agreement. Nothing was written down.” 30. PW3 testified that, “I knew E and he had 2 wives. We paid dowry for E. We took 2 crates of alcohol to their home. I was called for a wedding for the 2nd wife.” On cross examination, he stated that, “M is E’s 2nd wife. There was a church wedding. I attended. I had no objection to the marriage. I was called by E’s father to take dowry to E’s home. It was a long time ago. We went as myself, PW2 her husband and another person I cannot remember. PW2 was there. She should have seen me. Dowry consists of Ruracio and Ngurario. I have not said in my affidavit that he went and paid such dowry and when that was.” 31. The Respondent herein testified that, “I have never seen E. I was E’s wife. He had no other wife.” In re-examination, she stated that, “I was not relating well with my in-laws. The land belonged to my husband. He was its registered owner. I did his succession as his wife.” Her testimony was corroborated by their neighbour, DW2 who testified that, “E had one wife, Mercy. I do not know or ever seen one E.” 32. The evidence tendered by the Appellant and her witnesses was not only contradictory but also unreliable. While the witnesses were unable to state with certainty when the alleged dowry was paid, who was present or what items were given, they all acknowledged that the Respondent was married in a church ceremony, which none of them objected to. 33. I should agree with the Court in re Estate of Geoffrey Mugwe Kamau (Succession Cause 113 of 2015) [2023] KEHC 21814 (KLR) (10 August 2023) (Judgment), (Nyakundi J.) that: “ It is trite law that he who alleges must prove. For one to prove a civil marriage, production of a marriage certificate shall suffice. If one claims to have been married via customary law, the onus is upon them to prove the same. In Njoki -v- Mathara and Others Civil Appeal No. 71 of 1989 (UR), Kneller J. A. held that: 34. “(i) The onus of proving a customary marriage is on the party who claims it. (ii) The standard of proof is the usual one for civil action, balance of probabilities. (iii) Evidence as to the formalities required for a customary law marriage must be proved to the above standard.” The Court finds that the evidence adduced by the Appellant fell short of establishing, on a balance of probabilities, that she was a wife or a dependant of the deceased herein, within the meaning of section 29 of the Law of Succession Act, and, consequently, there is no basis to warrant this court’s interference with the finding of the trial court. Orders 35. Accordingly, for the reasons set out above, the Court finds that the appeal has no merit and it is dismissed. 36. There shall be no order as no costs. Order accordingly. DATED AND DELIVERED THIS 27TH DAY OF NOVEMBER 2025. EDWARD M. MURIITHI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18163/eng@2025-11-27 6

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Appearances: Mr. Mwagiru & Mr. Nyaga for Mr. Maina Kagio for the Respondent. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18163/eng@2025-11-27 7

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