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Court of AppealPartially AllowedCivil Appeal No. 311 of 2002

V R M v M R M & A M M

Court of Appeal of Kenya
16 June 2006
6,281 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that living together as husband and wife for many years creates a legal presumption of marriage that protects inheritance rights.

What this practically means

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Executive summary

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The deceased, G J M, died intestate in March 1999 leaving an estate of about Shs.19 million. Veronicah (V R M), claiming to be his wife, filed Succession Cause 989/99 for letters of administration ad colligenda bona, while five of the deceased's children with his late wife Julia petitioned for a full grant in Succession Cause 1110/99; the causes were consolidated. Visram J found Veronicah had not proved a customary marriage and, being still married under a monogamous marriage, lacked capacity to marry the deceased; her objection was dismissed with costs. Her application for review, based on documentary evidence of her 1984 divorce, was rejected on 14th November 2001, provoking this appeal. The Court of Appeal identified one central issue: whether the judge erred in rejecting the evidence intended to prove capacity to marry. Applying Mbogo v Shah, the Court held the judge misdirected himself by failing to consider the presumption of marriage arising from 15 years of cohabitation and general repute, following Hortensiah Wanjiku Yaweh v Public Trustee, which applies to all marriages howsoever celebrated. The Court also held that the abstract of the court register and receipts were new and important matter, the missing subordinate court file answered the diligence objection, the discretion to review for 'any other sufficient reason' is unfettered, and failure to annex the decree was not fatal where it was already on the record. The appeal was allowed, the ruling set aside, the review granted, the decree varied to recognise capacity and the presumption of marriage, and the question of the rightful administrator under section 66 remitted to a judge other than Visram J. The Court apologised for the delay in delivering its judgment.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the learned Judge erred in law and in fact in rejecting the evidence intended to be introduced by the appellant to prove that she had the capacity to marry
  2. 2.Whether the presumption of marriage arising from long cohabitation applied in the appellant's favour
  3. 3.Whether the application for review was incompetent for failure to annex a copy of the decree sought to be reviewed
  4. 4.Whether the court's discretion to review for 'any other sufficient reason' is confined to grounds existing at the date of the decree

Key legal issues

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01

Presumption of marriage from long cohabitation

Holding

The court must consider whether the presumption of marriage applies even where strict proof of a statutory or customary marriage fails; the presumption applies to all marriages howsoever celebrated.

Reasoning

Following Hortensiah Wanjiku Yaweh v Public Trustee, the Court held that long cohabitation as man and wife raises a rebuttable presumption of marriage, applicable to civil, customary or religious marriages. The trial judge erred by preoccupying himself with capacity to marry and failing to make a finding on the presumption or on whether the respondents had rebutted it.

p. 6
02

Scope of review for 'any other sufficient reason'

Holding

The court's discretion to review under section 80 of the Civil Procedure Act and Order 44 is unfettered and is not confined to mistakes or errors in the decree or to grounds existing at the date of the decree.

Reasoning

The Court held the trial judge's restrictive reading of 'any other sufficient reason' was wrong, adopting Wangechi Kimita and Narodhco: the ground need not be analogous with the other enumerated grounds, and facts coming to a party's knowledge after the decree may merit review.

p. 8
03

Exclusion of evidence intended for review

Holding

The abstract of the court register and court receipts were new and important matter; the subordinate court's confirmation that its file had gone missing answered the allegation of lack of diligence, and the evidence should have been considered.

Reasoning

The decree absolute produced at trial was not new matter, but the other documents were. The unexplained disappearance and resurfacing of the subordinate court file negated lack of due diligence. Refusing to consider the evidence would lead to the absurd conclusion that the appellant remained married to a man she was lawfully divorced from since 1984.

p. 7
04

Annexure of decree to review application

Holding

Failure to annex a copy of the decree was not fatal where the decree was already in the same court record and there was substantial compliance with the procedure.

Reasoning

Distinguishing Gulamhussein Mulla Jivangi, where no decree existed when review was sought, the Court found the decree here had been issued and certified before the summons for review was filed, so dismissal on the technicality was a drastic sanction.

p. 9
05

Interference with discretionary decision on review

Holding

The trial judge's failure to consider the presumption of marriage and his incorrect premise that capacity findings would not affect the decree justified appellate interference with his discretion.

Reasoning

Applying Mbogo v Shah, the Court found the judge misdirected himself: he treated the unproved customary marriage as a barrier to review, ignored the presumption of marriage, and failed to consider the unrebutted evidence of 15 years of cohabitation and general repute.

p. 7

Legal principles established

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  • Long cohabitation as man and wife gives rise to a presumption of marriage which applies to all marriages howsoever celebrated, and only cogent evidence to the contrary can rebut it.
  • The power to review is not confined to mistakes or errors in the decree; 'any other sufficient reason' need not be analogous with the other grounds in the rule.
  • An appellate court may only interfere with the exercise of judicial discretion on well-settled principles of misdirection or failure to consider relevant matters.
  • Substantial compliance with review procedure suffices; dismissal for failure to annex a decree already on the record is a drastic sanction.

Court orders

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  1. 1.The appeal is allowed
  2. 2.The ruling of Visram J made on 14th November 2001 is set aside
  3. 3.An order substituted granting the summons for review dated 1st August 2001
  4. 4.The decree ensuing from the judgment dated 12th July 2001 is varied to the extent that the appellant had capacity to marry and a presumption of marriage operated in her favour
  5. 5.The matter be placed before a Judge of the superior court, other than Visram J, to exercise discretion as to the person or persons to whom a grant of Letters of Administration should be made, on the basis that V R M was the wife of the deceased at the time of his death

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya at Nairobi
Succession Cause 989 of 1999, consolidated with Succession Cause No. 1110 of 1999
Jurisdiction invoked
Appellate jurisdiction over the High Court under the Court of Appeal's statutory powers, including Rule 31 of the Court of Appeal Rules
Consolidated with
Succession Cause No. 1110 of 1999 (consolidated with Succession Cause No. 989 of 1999 in the High Court)

Relief refused

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Determination of who is the rightful administrator of the estate under section 66 of the Law of Succession Act

That is a matter within the discretion of the superior court

p. 9

Costs

No costs order made in the appeal; the judgment is silent on costs of the appeal (the High Court decree had dismissed the objection 'with costs').

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Accordingly, this appeal is allowed with the result that the ruling of Visram J made on 14th November, 2001 is set aside and we substitute therefor an order granting the summons for review dated 1st august, 2001.
p. 9Final orders - appeal allowed and review granted
Long cohabitation as man and wife gives rise to a presumption of marriage in favour of the appellant. Only cogent evidence to the contrary can rebut such a presumption
p. 6Presumption of marriage
in my view, is applicable to all marriages howsoever celebrated.
p. 6Presumption of marriage applies to all forms of marriage
Any other sufficient reason need not be analogous with the other grounds set out in the rule because such a restriction would be a clog on the unfettered right given to the court by section 80 of the Civil Procedure Act.
p. 8Scope of review jurisdiction
The current position would, then, appear to be that the court has unfettered discretion to review its own decrees or orders for any sufficient reason
p. 8Unfettered review discretion
we direct that the matter be placed before a Judge of the superior court, other than Visram J., to exercise its discretion as to the person or persons to whom a grant of Letters of Administration should be made
p. 9Remittal for determination of administrator under section 66

Issues in the judgment

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minor

Ground 5 of the memorandum of appeal as recorded appears to state the opposite of the appellant's case on capacity to marry.

minor

Inconsistent date capitalisation in final orders ('1st august, 2001') but dates otherwise consistent.

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, "V R M v M R M & A M M", Case Analysis (2006). Civil Appeal No. 311 of 2002. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2006/342/eng@2006-06-16

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