Patricia Mumbi v Catherine Muutu & 3 others

4. In her affidavit in support of the petition, Ms. Mumbi deposed that she served Ms Catherine Muutu with the citation to take or refuse to take a grant, but that she declined to cooperate. Ms Mumbi described Catherine as the deceased's former wife. She listed the following as having survived the deceased: 1. Mulwa Mbolo - father- aged 76 years; 2. Catherine Musyawa Muutu - former wife - 54 years; 3. Teresia Lynn Ndeto Muutu – daughter - 30 years; 4. Thomas Makila Muutu – son - 26 years; 5. Patricia Mumbi - 2nd wife - 56 years; 6. Kevin Kandu – son - 33 years; 7. Diana Wanjiru Kibi – Daughter- 28 years; and 8. Faith Ndanu Musau – daughter - 32 years. 5. Ms Mumbi listed the assets of the deceased, whose estimated value she gave as being Kes.30,000,000/-. In her petition, it was stated that the deceased had no liabilities. 6. The petitioner also filed a petition for letters of administration ad litem dated 21st December 2021 on 22nd December 2021. The application was allowed. Consequently, a limited grant ad litem under section 54 of the Law of Succession Act was issued on 8th February 2022. 7. The petition was gazetted on 11th August 2023 vide Gazette Notice No 10594 of 2023. 8. Ms Catherine Musyawa Muutu filed an objection to the making of a grant to the petitioner on 8th September 2023. In the said objection, Ms. Muutu averred that she was the wife of the deceased, having married him in a statutory marriage. She denied that the petitioner was the wife of the deceased, nor was she his child or otherwise a dependant, and neither did she obtain a consent of the beneficiaries of the estate before applying for letters of administration intestate. She also contended that the petitioner failed to disclose all the material information. 9. The objector filed an Answer to the petition, also dated 13th December 2023, together with her children, and her stepdaughter, Faith Ndanu Musau, and a petition by way of cross application for grant in which she listed various assets of the deceased and gave their estimated value as being Kes.40,000,000/-. Her children, Teresia Lynn Ndeto Muutu and Thomas Makila Muutu, as well as the deceased daughter by another relationship, signed the consent to the petition. 10. Before filing the objection, the objector had filed a petition in the Court below, being Mombasa Chief Magistrate’s Court Succession Cause No E202 of 2021. A grant was issued in the Court below on 25th November 2021 to Catherine Musyawa Muutu in her capacity as the wife of the deceased. The said grant was revoked by consent of the parties. 11. The objection was opposed by the petitioner, who filed a replying affidavit, vide which reiterated that she was the wife of the deceased. 12. This Court gave direction on the hearing of the objection proceedings on 30th October 2023. The matter was slated for hearing on 23rd November 2023. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18748/eng@2025-11-20 2

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13. On 23rd November 2023, the matter was heard. The 1st witness for the objector was the objector herself, Ms. Catherine Musyawa Muutu, who testified that she married the deceased in 1999 and that after the wedding, they lived together in various parts of Mombasa. In 2012, they separated. They, however, reunited in 2016 with the help of their parents. During the separation, she lived in Tononoka. She went back to Nyali in 2016. She testified that they had started buying the properties even before they separated in 2012. 14. When cross-examined, she denied that she was ever in any other relationship. She also denied that she was ever violent or cruel to her husband. Ms Muutu was unsure whether the petitioner spoke on behalf of the spouses in the family during the funeral of her mother-in-law. When further cross-examined by Mr. Adalla, she conceded that Patricia did indeed speak on behalf of spouses as a wife of the deceased. 15. When re-examined, she testified that she contributed money through a deposit in the account of the deceased and that she deposited a total of Kes.1,000,000/- in his account. Regarding the eulogy, she stated that she didn’t participate in its preparation or in determining who would speak. She testified that her view was that the petitioner was one of her husband's many mistresses. 16. The second witness was Peter Kiminza Mulele. Mr. Mulele is a resident of Kibwezi and was the best man of the deceased, while his wife was the bridesmaid. Mr. Mulele testified that although Sammy and Catherine Musyawa disagreed at some point, they made up, and that at the time of his demise, the two were together. He denied that there had ever been a divorce. When cross-examined by Mr Adalla, he stated that he lived in Uthiti and came to Mombasa a few times. He was not sure where the couple lived during coverture, whether it was in Makupa at Tononoka. 17. Ms. Anna Kalulu Wambua was the third witness. Anna was the sister of the deceased. She stated that her home is in Thange in Kibwezi East. Anna testified that Catherine was the wife of the deceased. She further testified that she was in Mombasa in 2021 when Sammy fell ill. Anna testified that Catherine took him to Premier Hospitals. She denied that Sammy contracted another marriage, saying that she heard him say that the proposed wife was someone else’s wife. 18. When cross-examined by Mr. Adalla, Anne testified that she didn’t know Patricia Mumbi. Even when shown a photograph, she couldn’t confirm if the photograph was that of Patricia. It was her evidence that she spoke on behalf of the women at the funeral. 19. The fourth witness for the objector was Thomas Makila Muutu. Thomas is the son of the 1st objector. He lives at Solomon’s Gate and is a businessman. He testified that he objected because the petitioner had not sought their consent before filing the petition. He denied that she had locus standi to file the petition. Although he conceded that there was a time his parents separated, he testified that they made up in 2018. Thomas testified that his father had three children: himself, Theresia Ndeto, and a stepsister introduced by their father. 20. When cross-examined, Thomas denied knowing Patricia. He also denied that his father got married to Patricia. He conceded, though, that Patricia was listed in his grandmother’s eulogy as being the wife of his deceased father. 21. Mr. Mulwa Mbolo, the father of Sammy Muutu Mulwa, was the fifth witness. It was his evidence that Sammy only went to the home of Patricia 2 times, whereas he ought to have visited 3 times for the alleged marriage to be binding. When cross-examined by Mr. Adalla, he denied having attended the “Ntheo” ceremony or knowing the people listed in the booklet, save for Inyasi Kando, who he stated was Patricia’s brother. When shown the eulogy, he read Catherine’s name but refused to read Patricia's, which had been written, saying he wasn’t consulted when the eulogy was prepared. Upon further crossexamination, he stated that he didn’t chase Patricia away, but rather that she left on her own volition. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18748/eng@2025-11-20 3

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He admitted having attended a house warning at Patricia’s mother’s house in 2021 after Sammy died. When re-examined, he reiterated that Catherine was his son’s wife. 22. The sixth witness was Muisyo Matheka. Mr. Matheka is a Branch Operations Manager at Absa Bank. He produced the bank statement for the mortgage account. The accounts show that the loan was taken out by the deceased. At the time of his demise, the same had not been paid in full, and the insurance paid the balance. 23. The Petitioner/Respondent called seven witnesses. The first witness for the petitioner was Susana Nduku Musumba. She testified that she was introduced to Patricia by the deceased. The deceased wanted to marry her and wished to go to Kilungu, Patricia’s home. It was her testimony that at the time she was approached, Sammy Muutu had separated from his wife. She testified that they visited Patricia's home. The second visit was the “ntheo” ceremony. During the said ceremony, they took three goats, one of which was slaughtered. Sammy and Patricia were asked if they really wanted to marry. They confirmed that they indeed wished to do so. Ms Susana testified that at the time they got married, Sammy and Patricia lived at Saba Saba. They later bought a house at Solomon’s Gate. 24. When cross-examined by Mr Onduso, Ms. Susana Musumba testified that during the funeral of Sammy Muutu’s mother, it was Patricia who spoke on behalf of the daughters-in-law. Catherine didn’t stand or speak up. Ms. Musumba testified that there were three visits to Patricia Mumbi's home in Kilungu, as required by the customary law of the Akamba people. According to her, the bride’s family does not visit the groom’s home except for social functions. 25. Candita Ngina Kandu was the second witness. She resides at Mkomani. Candita is the sister of Patricia. She testified that Sammy and Patricia employed her as the farm manager. She stated that Sammy had a farm in Malili, which he would visit whenever he was in Uthiti. Candita denied that Tom managed the farm. She also denied ever having seen Catherine at the farm. When cross-examined by Mr. Onduso, she stated that she stayed with Sammy and Patricia at Solomon’s Gate and that they moved to Malili during the COVID-19 pandemic, where they were building a house. She testified that Catherine went back to Solomon’s Gate when Patricia was unwell. 26. The third witness was Ms Pamela Atieno Abuto. Ms Abuto is a clerical officer, working at the time in the Mombasa High Court as the in-charge Family Registry. She produced the Court file in respect of Divorce Cause No. 36 of 2023; Sammy Muutu Mulwa v Catherina Muutu. When cross-examined by Mr. Onduso, Ms. Abuto testified that the divorce cause was dismissed under Order 17 Rule 2 of the Civil Procedure Rules. She stated that the marriage between the deceased and Catherine was never dissolved. 27. The petitioner was the fourth witness. Patricia testified that he met the deceased in 2010. The deceased visited her home thrice; the third visit was to pay dowry. It was her testimony that there was a traditional Kamba marriage ceremony called “ntheo”. She further testified that when she met Sammy, he was single and that he said as much during the “ntheo” ceremony. He confirmed that he had returned the goat as required by the Kamba customary law and had divorced his first wife. As they had no house, she helped him get a mortgage with Barclays Bank, with which he bought the house at Solomon’s Gate, and both contributed to its purchase. 28. Ms Patricia testified that she renovated the Solomon’s Gate house and lived there, and that she left in 2019 to live in Mkomani when her mother and Candita became unwell. That is when Catherine moved back. Thereafter, she went to Malili, where she stayed until November 2020. She further testified that the deceased's wealth was accumulated during their time together. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18748/eng@2025-11-20 4

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29. When cross-examined by Mr Onduso, Patricia conceded that she didn’t obtain the consent of all the dependants. She stated that she became a wife by virtue of customary law. She was unsure whether the customary marriage had to be registered. He reiterated that most of the wealth was acquired when she and Sammy were together. Regarding her children, he stated that Kevin and Diana became Sammy's children upon her marriage to him and that he took full responsibility for their education. Patricia denied any role in preparing the eulogy. She stated that Sammy pushed her to speak during the funeral. 30. Mr Ignatius Muthoka Kandu was the fifth witness. Mr. Kandu is Patricia's brother. He testified that Sammy stated during his visit to their home that he had divorced his first wife. He further testified that Sammy agreed to take care of Kevin and Diana. 31. The sixth witness was Father Patrick Kyalo Maingi. Father Maingi is a Catholic priest. It was his testimony that Patricia was a member of the Catholic Women's Association. Patricia requested that he bless the house at Solomon’s Gate. Father Maingi stated that he didn’t know Mr Muutu well. It was his testimony that Mr. Muutu never appeared in his church with Catherine. When cross-examined, he testified that the Roman Catholic Church does not recognize divorce nor condone polygamy. 32. The last witness was Anthony K Tumuti. He works with KCB Bank. He testified that the deceased had a loan. In the loan documents, he stated that he was married to Patricia and produced a spousal consent. 33. The summons was canvassed by way of written and oral submissions whose precis I shall give below. 34. The parties filed written submissions. The objectors' submissions are dated 7th March 2025. Those of the Petitioner are dated 15th May 2025. 35. In her submissions filed by the firm of Otieno BN & Associates the objector urged that the petitioner/ respondent lacked locus standi to file the petition for letters of administration intestate for the estate of the deceased as she was not his wife or a beneficiary of his estate and that she petitioned for the grant without the consent of persons of equal or higher priority than her. 36. Mr Onduso, learned counsel for the objector, identified issues for determination as being: - 37. 1. Whether the applicant has locus standi to apply for letters of administration regarding the estate of Sammy Muutu Mulwa in an alleged capacity as his wife; 2. Whether the deceased had legal capacity to contract another marriage; 3. Whether the applicant obtained consent from all persons entitled to apply for the grant; 4. Whether there had been a divorce between the deceased and the 1st Objector; and 5. Whether the deceased provided for the children of the petitioner/respondent before his demise, and if so, whether the said children were his dependants. Regarding the first issue, counsel for the objectors denied that the petitioner contracted a customary marriage in 2012, stating that no proof was provided of the registration of the said marriage under section 55(1) and 50(2) of the Marriage Act, 2014. It was contended that up to the time of his death, the deceased was in a monogamous marriage with the 1st objector, having married her in 1999. The said marriage was intact in 2021 when he died. Counsel relied on the provision of section 11(1) of the Marriage Act, 2014, and the decisions of the Court in the case of re Estate of the late Peter Kamau Nganga (deceased) [2018] eKLR, Machani v Vernoor [1985] eKLR, and Victoria Mwihaki Muchira & 2 others v Wanjiku Mwenja Mwangi & another [2016] KEHC 8388 (KLR). https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18748/eng@2025-11-20 5

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38. It was submitted that the pendency of the divorce proceedings did not terminate the marriage. That being the case, he could not be presumed to have been married to the petitioner. Mr. Onduso, for the objector, urged that the presumption of marriage could only be made where the spouse had capacity. In support of the said contention, reliance was placed on the case of Mary Wanjiku Githatu v Esther Wanjau Kiarie [2010] eKLR. 39. Counsel submitted that the deceased lacked capacity to marry as he was in a monogamous marriage to the objector. He further submitted that there was no sufficient proof that a customary marriage was contracted, nor that all the prerequisites of the Akamba Customary Marriage were adhered to. Further, no proof of registration of the alleged marriage under the Marriage Act was provided. Counsel submitted that any marriage in Kenya had to have three qualities: be a union of opposite sex, voluntary, and registered. 40. It is submitted that the deceased never divorced the 1st objector. Although he filed Divorce Petition No. 36 of 2013, Sammy Muutu Mulwa v Catherine Muutu, it was not prosecuted. The same was dismissed for want of prosecution by Lady Justice Thande in 2017. It was denied that the deceased had separated from the objector in 2008. 41. Counsel denied that the petitioner and her children were the dependants of the deceased. He urged that it wasn’t proved that the deceased provided for them. It was further urged that the petitioner had the burden of proving the alleged dependency, which burden she failed to discharge. 42. Counsel submitted that Solomon’s Gate House was purchased through a mortgage and was paid for by the deceased through bank account number 0168305265 belonging to the deceased. What remained outstanding at the time of his demise was settled by the insurance. It was urged that the said property could not be matrimonial property, as the petitioner was not the deceased's wife at law. It was also urged that before his death, the deceased lived in Solomon’s Gate with the objector and their two children. 43. Mr. Onduso, learned counsel for the objector, urged that before filing the petition, the petitioner did not obtain the consent of the objector as is required under the Law of Succession Act. Reliance was placed in the case of Antony Karukenya Njeru v Thomas M. Njeru [2014] KEHC 6398 (KLR) and also in re Estate of Eston Nyaga Ndirangu (deceased) [2021] eKLR, where in the latter case it was held that:“ It is my considered view, therefore, that the failure by the respondents, more so the 1st and 2nd Respondents, to obtain the consents from the other siblings makes the proceedings of obtaining the same to be defective in substance, and the said grant ought to be revoked and a new grant issued to the applicants.” 44. Counsel denied that a citation was served on the objector or her children, Thomas and Terry Lynn, and her stepdaughter, Faith Ndanu. 45. It was therefore urged that the objection be upheld and that the cross petition be allowed and a grant issued to Catherin Musyawa Muutu. 46. In his submissions, the counsel for the petitioner/respondent, Mr Adalla, submitted that the objection ought to be dismissed and the house known as the Solomon’s Gate House No. 410 be found to be the matrimonial home of the petitioner/respondent. 47. It was submitted that under Section 3(5) of this Law of Succession Act, the petitioner was a witness to the deceased. It was averred that in 2008 the deceased had separated from the objector, and that when https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18748/eng@2025-11-20 6

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the petitioner met him, he stated that he was single and could, in popular parlance, mingle. They got married under Kamba customary law in a ceremony that was valid under that law. 48. In support of the said contention, counsel relied on the case of Kagau & another v Kagau & another [2025] KECA 696 (KLR) where it was held that: “ Section 3(5) of the Law of Succession Act recognizes a woman married under a system of law that allows polygamy as a wife for purposes of succession…” 49. It was emphasized that the lack of registration was not fatal to the presumption of marriage. 50. Counsel for the petitioner urged that the deceased and the petitioner had a joint account. When applying for a loan, he indicated the petitioner as his wife. Reliance was also placed on the fact that one witness, Father Maingi, testified that he knew he deceased and the petitioner as spouses and that he never presented anyone else as his spouse. 51. Regarding Solomon’s Gate House, it was urged that from the totality of the evidence, she and the deceased purchased the house, and she lived there with the deceased, as evidenced by the WhatsApp group messages that were adduced. The petitioner was the treasurer of the Solomon’s Gate Residents Association, and the objector gained entry only when the petitioner was away on family duties. Counsel urged that the said house was the matrimonial home of the petitioner and the deceased. Counsel contended that she was therefore entitled to exclusive use of the same. 52. The petitioner therefore prayed that the objection before the Court be dismissed and the Court do find that the petitioner, being the wife of the deceased, is entitled to apply for the grant and that she be made an administrator with the 1st Objector. It was urged that her children were dependants of the deceased under the applicable law. 53. Counsel prayed that the house known as Solomon’s Gate be deemed as the petitioner’s matrimonial home and that she is entitled to it to the exclusion of anyone else. The petitioner also prayed for costs. 54. I have considered the pleadings, the affidavits of the parties, oral and documentary evidence adduced, and the oral and written submissions of the parties. 55. The main issue for determination is whether the petitioner was the wife of the deceased, and if so, whether a grant ought to be issued to her. The other issues are whether the petitioner ought to have sought the consent of the objectors before filing the instant petition, who the dependants of the estate are, and whether the house at Solomon’s Gate is a free property of the deceased liable to be distributed to his dependants under the law of intestacy. 56. It is a common ground that the objector contracted a statutory marriage to the deceased. The said marriage was celebrated in 1999 at the Catholic Mission, Kambu, Makueni, under the African Christian Marriage and Divorce Act. The said marriage was monogamous. 57. Although the deceased filed a divorce petition, to wit the Divorce Cause No 36 of 2013; Sammy Muutu Mulwa v Catherine Muutu, the same was never concluded and was dismissed by Lady Justice Mugure Thande on 1st December 2017 under the provisions of Order 17 Rule 2 of the Civil Procedure Rules. The deceased was therefore married to the objector until his death. That being the case, the 1st objector was a dependant of the deceased, and her consent to the filing of the petition ought to have been obtained. 58. The petitioner appears to concede that consent of the 1st objector was necessary for, in the written submissions, she evinced a desire to have the grant issued to her and the objector. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18748/eng@2025-11-20 7

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59. Since the deceased was married to the 1st objector, could he contract another marriage to the petitioner? Section 11(1) (c) of the Marriage Act, 2014 provides that: “ A union is not a marriage if, at the time of the making of the union: … (c) Either party is incompetent to marry by reason of subsisting marriage.” 60. By dint of this provision, the deceased could not have married the petitioner as his marriage to the objector was still subsisting. The marriage to the petitioner was therefore void ab initio for want of capacity. 61. The above finding is consistent with the decisions of the superior courts. In the case of re Estate of Peter Kamau Nganga (deceased) [2018]eKLR, it was held that:“ The Marriage Act provides at section 11 that a union is not a marriage if at the time of the making of the union either party is incompetent to marry by reason of a subsisting marriage.” 62. In the case of Machani v Vernoor [1985]eKLR, it was held that:“ To answer the spirit of this provision, it would be impossible to evade its unambiguous terms, and to hold that a marriage existed during the continuation of a previous monogamous marriage.” 63. Whereas Courts can presume marriage where there has been long cohabitation. In MNK v POM; Initiative for Strategic Litigation in Africa (ISLA) (Amicus Curiae) [2023] KESC 2 (KLR), the Supreme Court laid down the law on the presumption of marriage. At paragraph 64, it was held by the apex Court that: “ 64. 64. We find it prudent at this juncture to lay out the strict parameters within which a presumption of marriage can be made: 1. The parties must have lived together for a long period of time. 2. The parties must have the legal right or capacity to marry. 3. The parties must have intended to marry. 4. There must be consent by both parties. 5. The parties must have held themselves out to the outside world as being a married couple. 6. The onus of proving the presumption is on the party who alleges it. 7. The evidence to rebut the presumption has to be strong, distinct, satisfactory, and conclusive. 8. The standard of proof is on a balance of probabilities.” In my view, the deceased, not having dissolved his marriage to the objector, lacked capacity to marry the petitioner. That being the case, there can be no presumption of marriage to the petitioner. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18748/eng@2025-11-20 8

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65. At paragraph 65 of the foregoing decision, the Supreme Court issued a caution. It stated that: “ The above notwithstanding, we are of the view, that the doctrine of presumption of marriage is on its deathbed of which reasoning is reinforced by the changes to the matrimonial laws in Kenya. As such, this presumption should only be used sparingly where there is cogent evidence to buttress it..” 66. The cohabitation between the petitioner and the deceased does not appear to me to have lasted for an extended period of time. The parties appear to have maintained separate residences. On the other hand, the deceased held out the petitioner as being his wife, as evidenced by the testimony of Father Mumo and also from the fact that she resided at Solomon’s Gate for some time before the 1st objector gained ingress and took over. 67. In the circumstances of this case, I am unable to presume that there was a marriage between the deceased and the petitioner. Their time together was short. At the time of his death, the deceased appears to have made up with the 1st objector and lived with her. The objector was present during the time he was ailing and was in control of his treatment. 68. The petitioner led evidence in support of her claim that she got married to the deceased under the customary law of the Kamba People. A question that arises is whether, in view of the foregoing findings of this Court, the deceased could have contracted such a marriage, and if so, whether it would have been valid and binding on the Probate and Administration Court. This analysis is necessary in view of the provisions of section 3(5) of the Law of Succession Act. 69. Section 3(5) of the Law of Succession Act provides that: “ Notwithstanding the provisions of any other written law, a woman married under a system of law which permits polygamy is where her husband has contracted a previous or subsequent monogamous marriage to another woman, nevertheless a wife for the purpose of this Act, and in particular section 29 and 40, thereof and her children are accordingly children within the meaning of the Act.” 70. Although it has been argued that there was an implied repeal of the said section by the fact that parliament redefined the meaning of the word spouse, with respect, I disagree. Parliament, in its wisdom, considered Section 3 of the Law of Succession Act and amended only the definition of spouse; had there been a different intention, Parliament would have said so explicitly. 71. My view is that parliament did not have such an intention, for if they did, they would have amended the said provision to read as proposed by the objectors’ counsel. I am of the view that Parliament was aware of the complexities of the Kenyan society, especially the fact that we have an unwieldy fusion of Western and African cultural practices. Adoption of Western norms, without consideration of the cultural practices of the Kenyan African people, would create injustice. 72. The Court of Appeal considered a similar situation in the case of Kagau & another v Kagau & another [2025] KECA 696 (KLR), in a bench consisting of Jamila Mohamed, M Ngugi and F Ochieng, JJA. The said Court held as follows at paragraph 35: “ This doctrine has been consistently applied in Kenyan jurisprudence, as evidenced by a line of cases, including but not limited to Peter Hinga v Mary Wanjiku, CA No. 94 of 1977 and Mary Wanjiru Githatu v Esther Wanjiru Kiarie (supra). Where parties have cohabited for a prolonged period and held themselves out as husband and wife, a presumption of marriage https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18748/eng@2025-11-20 9

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arises. This presumption, however, remains subject to rebuttal by credible and compelling evidence to the contrary. Does presumption of marriage create a marriage? A short answer to this question is that it does not. It serves as a safeguard, ensuring that the rights of individuals in informal marital arrangements are recognized and protected under the law.” (emphasis added). 73. The above decision is binding on this Court under the doctrine of stare decisis. The decision of the High Court in re Estate of Joshua Apiyo Ongany [2023] KEHC 19393 (KLR), however, is not as it was made by a Court of equal status. 74. Having found as above did the petitioner contract a marriage under the customary law of the Akamba people? The law is that a person who seeks to profound a customary marriage must call evidence to prove the customary. Gicheru JA in the case of Sakina Sore Kalttany & another v Mary Wamaitha [1995]eKLR held that:“ The onus of proof to establish a particular customary law rests on the party who relies on that law in support of her case to call evidence to prove the customary law, as would prove the relevant facts of her case.” 75. The petitioner stated that there was a traditional wedding celebrated under the customary law of the Akamba people. From the evidence of Susana Nduku Musumba, it is evident that there was a “ntheo” ceremony, as three goats were provided, one of which was slaughtered and eaten. Her evidence was corrupted by that of Ignatius Muthoka Kandu. 76. I am of the view that there was a ceremony of marriage under the Akamba customary law sufficient in terms of section 3(5) of the Law of Succession Act to safeguard the claim of the petitioner as wife for the purposes of the Act. 77. It is true that the Petitioner did not have biological issues with the deceased. I note, however, that her two children were educated and taken care of by the deceased prior to his death. The deceased paid their school fees. This, in my view, shows that he had accepted them as his own and had voluntarily assumed permanent responsibility for them. In the circumstances, I find and hold that the petitioner’s two children are deceased’s children for purposes of succession and that they are therefore dependants of the estate. 78. It is clear that the petitioner did not seek the consent of the objector prior to filing the petition. In my view, the 1st objector was a person of equal priority to the petitioner and should have been consulted; since this wasn’t done, the petition before the Court is defective. 79. There was contestation about the house at Solomon’s Gate. In my view, the house was purchased by the deceased through a mortgage with Barclays Bank (how Absa Bank). The bank statements confirm this fact. Upon his demise, the remaining loan was paid off by the insurance. That being the case, there is no evidence that it was a matrimonial property. Even if it were, the petitioner would be entitled to at most 50% of it, with the remainder going to the deceased's estate. Since I have found and held that it belonged to the deceased wholly, it follows that it is his free property that now belongs to his estate, capable of being devolved under the laws governing intestacy. 80. The upshot of the foregoing is that I find and hold that the objection has merit in part to the extent that the petition herein was filed without the consent of all the dependants of the deceased as required by law. I also find and hold that: - https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18748/eng@2025-11-20 10

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81. 1. The petitioner is the wife of the deceased, purely for the purposes of section 3(5) of the Law of Succession Act, and her children are the dependants of the deceased under the aforesaid law: 2. The Solomon’s Gate House belonged to the deceased wholly and is therefore a free property of the deceased, capable of being devolved under the law of intestacy; 3. The deceased left behind two houses, and his estate must devolve under the provisions of section 40 of the Law of Succession Act; 4. I appoint the petitioner and 1st objector as the administrators of the estate of the deceased; 5. Since this is a family matter, I order that the parties bear their own costs; and 6. I order the administrators to collect the estate of the deceased, ascertain its debts, and file the summons of confirmation of Grant within 6 months of the date hereof. It is so ordered. DATED AND SIGNED AT MOMBASA, THIS 20TH DAY OF NOVEMBER 2025. DELIVERED VIRTUALLY THROUGH MICROSOFT TEAMS. GREGORY MUTAI JUDGE In the presence of: Mr Onduso, for the Objectors/Applicants; Mr Adalla, for the Petitioner/Respondent; Arthur – Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18748/eng@2025-11-20 11

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