Bench Bulletin - Issue 12 - Kenya Law Reports

KENYA LAW REPORTS
BENCH BULLETIN
FROM THE COURTS — COURT OF APPEAL
been fulfilled – whether a marriage between the respondent and the deceased could be presumed under section 3(5) of
the Law of Succession Act Marriage – presumption of marriage - rationale and genesis of the concept of presumption of
marriage - circumstances in which a presumption of marriage is deemed to arise – respondent having cohabited with the
deceased for over fifteen years and had three children – evidence supporting that the deceased supported the respondent
financially – lack of evidence that dowry was paid under the Kikuyu customs of marriage – whether a marriage could be
presumed under such circumstances
The High Court decreed that Esther Wanjiru Githatu (respondent/objector) and Mary Wanjiru Githatu (appellant/
petitioner) be joint administrators of the estate of Ephantus Githatu Waithaka (the deceased). The High Court judgment
had rendered that although there was no formal marriage between the deceased and the respondent, by virtue of their
long cohabitation of fifteen years, recognition and acceptance by family members and friends, coupled with the birth
of three children, the court declared the existence of a marriage by presumption and/or cohabitation between them.
The Hon. Mr. Justice
S. E. O. Bosire
The appellant’s main ground of appeal was whether the respondent was a widow of the
deceased within the meaning of section 3 (5) of the Law of Succession Act (Cap 160). The said
section provides that the notwithstanding any other written law, a woman married under
a system of law that permits polygamy is, where her husband has contracted a subsequent
or previous monogamous marriage to another women, she will nevertheless be considered
a wife for purposes of the Act.
On appeal, the appellant’s advocate argued that the trial court in holding that petitioner was
the widow of the deceased, based its decision on presumption of marriage. In his view the
court erred in law and fact in failing to find that a common law presumption of marriage
could not bring the petitioner within the provisions of section 3 (5) of the Law of Succession
Act particularly having held that there was no valid Kikuyu customary law marriage between
the petitioner and the deceased.
On the other hand the respondent’s advocate relied on long cohabitation, the children the
petitioner had with the deceased and other evidence to urge the court to presume a marriage
between the deceased and the petitioner.
Held:
1. Whether or not a marriage could be presumed was a question of fact. It was not dependent on any system of law
except where by reason of a written law it was excluded. The objector was married by the deceased under Kikuyu
Customary Law. That being so and both sides conceded as much, the deceased had the capacity to enter into another
marriage relationship provided the marriage was not a prohibited one.
2. The marriage between the petitioner and the deceased was potentially customary in nature. The deceased according
to Kikuyu customary law was obliged to pay dowry for the petitioner. As at the date of his death he had not done so.
It however appeared to the court that if other essentials were satisfied but dowry was not paid, it may be paid even
after one of the parties to the relationship was dead. Contrary to the objector’s submission it was in the circumstances
as existed between the deceased and the petitioner in which a presumption of marriage may be raised.
3. Long cohabitation as husband and wife may give rise to presumption of marriage in favour of the party asserting
it, in the instant case, the petitioner (Hortensiah Wanjiku Yawe v The public Trustee). In view of section 3 (5) of the
Law of Succession Act and the decision in Yawe vs. Public Trustee it was quite clear that the petitioner could in the
circumstances of this case, be regarded otherwise than as the widow of the deceased.
4. [per Nyamu J.A dissenting] The superior court decision was patently contradictory because it made a finding of
the non-existence of a marriage under Kikuyu customary law between the petitioner and the deceased and at the same
time declared a marriage by presumption, a concept which was a stranger in Kikuyu customary law.
5. [per Nyamu J.A dissenting] A customary marriage is constituted by virtue of section 3(2) of the Judicature Act
by the presence of the specified customary ingredients. It is a massacre of such a custom for anyone to suggest that a
presumption of marriage per se can constitute a marriage under any system of law whether customary or common
law unless it was accompanied by the other essential ingredients pertaining to a particular system of marriage. A
presumption based on cohabitation remained a presumption but it could not constitute a customary law marriage
without the essential ingredients. The presumption could not itself form the super structure of a Kikuyu customary
law marriage or any other, it could only be part of the issue whether factually there was a marriage.
6. [per Nyamu J.A dissenting] The petitioner was not married under a system of law contemplated under section 3
(5) of the Law of Succession Act, therefore there was no marriage in terms of that provision.
Appeal dismissed.
Advocates
1. Mr. Gicheru for the Appellant
2. Mr. Machio for the Respondent
Issue 12: April-June 2010
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