HIGH COURT RULES HAVING CHILDREN TOGETHER IS NOT PROOF OF MARRIAGE

HIGH COURT RULES HAVING CHILDREN TOGETHER IS NOT PROOF OF MARRIAGE

SUCCESSION CAUSE NO. 164 OF 2010

The High Court of Kenya at Nakuru has ruled that having children together is not proof of marriage. Justice Joel Ngugi ruled in an objection application filed by Lucy Wambui Mwaura to the Petition for Letters of Administration filed by Catherine Wamuyu Ikinya and her son Mwaura James Muriithi over the estate of Benard Mwaura Kariuki who died in 2008. In the Petition, Catherine Wamuyu Ikinya claimed to be the deceased wife with 5 children. She alleged that she got married to the deceased under Kikuyu customary law but failed to prove how the marriage was conducted in accordance with Kikuyu customs. Catherine also failed to show cohabitation with the deceased in order to salvage her claim as a wife to the deceased but instead testified that she divorced the deceased after five years of their union.

On the other hand, Lucy Wambui Mwaura the objector claimed to be the legal wife to the deceased after they got married in 1986 and solemnized the same on 10th March 1991. She stated that out of their union with the deceased, they were blessed with 3 children and that she has never heard of Catherine and her alleged children either from the deceased or any other person. Lucy went ahead to produce the marriage certificate as proof of their union with the deceased as well as pay slip and land sale agreement indicating that she and her late husband purchased two parcels of land together.

Though Catherine claimed to be the other wife to the deceased, she did not produce any evidence to support her position other than 3 birth certificates for the 3 out of 5 children she claimed were products of her union with the deceased.

In dismissing Catherine’s claim over the deceased’s estate, the court had this to say:

“… Catherine claimed that she lived with the Deceased for five years then divorced. She probably meant separated but the effect is the same. In my view, that ends the inquiry. A marriage by presumption is a judicial doctrine used to facilitate equitable outcomes in certain extant situations. It does not relate back. One cannot say, as Catherine attempts to say here, that she is a former wife by virtue of marriage by presumption. One cannot be a former wife of a presumed marriage. A former wife must be a wife in a marriage contracted in one of the established systems for contracting marriage…”

The court then concluded that Catherine was not a wife of the deceased for purposes of the Law of Succession Act and cannot be a beneficiary to the deceased’s estate. With regards to her children, the court stated that there was sufficient evidence to conclude that the three children whose birth certificates were produced were children of the Deceased and that no evidence was placed before the Court to establish the father of other two children. That it was incumbent upon the person asserting to prove their allegations and, in the case, the claim that the other two children were children of the deceased had not been proved hence they were not considered as beneficiaries.

The court went ahead to conclude that the objector; Lucy Wambui Mwaura her 3 children and Catherine’s 3 children whose birth certificates were produced are the legal beneficiaries to the estate of the deceased and ordered that a grant of letters of administration be issued to Lucy Wambui Mwaura and James Muriithi Mwaura the first son.

By Andrew Wanga

www.mmsadvocates.co.ke

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