M.W.G v E.W.K [2010] KECA 322 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that a woman who lived with a man for fifteen years and bore his children is a legal widow who can inherit his estate.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the petitioner (respondent) is a widow of the deceased within the meaning of section 3(5) of the Law of Succession Act, Cap 160, in the absence of a formal marriage
- 2.Whether a marriage can be presumed from long cohabitation, family recognition and the birth of children under Kikuyu customary law
- 3.Whether the deceased's relationship with the petitioner was bigamous
Key legal issues
#Whether the doctrine of presumption of marriage applies where there is no formal marriage under customary or statutory law
Yes, by majority. The doctrine rests on section 119 of the Evidence Act and the line of authorities following Yawe vs. Public Trustee; on the facts, the fifteen-year cohabitation, family acceptance and three children justified presuming a marriage.
The court traced the doctrine to section 119 of the Evidence Act and Yawe vs. Public Trustee, followed in Kituu v. Nzambi. It distinguished Machani vs. Vernoor (obiter, where cohabitation began while the woman was married to a third party) and declined to follow the majority in Njoki v. Mutheru as based on old thinking. Parliament's insertion of section 3(5) showed recognition of women taken as wives without dowry or ceremony. The deceased had capacity under Kikuyu customary law and treated the petitioner as a wife.
Whether the deceased's relationship with the petitioner was bigamous
No. The deceased's marriage to the objector was under Kikuyu Customary Law, which permits polygamy, so he had capacity to enter another customary relationship with the petitioner; dowry, though unpaid, has no fixed time for payment and may even be paid after death.
Since the objector conceded she was married under Kikuyu Customary Law, a system permitting polygamy, the deceased had capacity for another marriage provided it was not prohibited. Cohabitation, residence and maintenance are essentials of a Kikuyu marriage; dowry was unpaid but per Cotran may be paid by instalments or after death. The relationship was therefore potentially customary and not bigamous, and a presumption of marriage could be raised.
Whether section 3(5) of the Law of Succession Act applies to the petitioner
By majority, yes. Combined with Yawe vs. Public Trustee, the provision means the petitioner must be regarded as the deceased's widow for purposes of the Act.
Parliament added section 3(5) by Act No. 10 of 1981 to protect women taken as wives who were discriminated against because dowry was unpaid or no ceremony was performed. The subsection deems a woman married under a polygamy-permitting system to be a wife for purposes of sections 29 and 40 of the Act. Together with Yawe, this required regarding the petitioner as the widow.
Legal principles established
#- The existence or otherwise of a marriage, and whether a marriage can be presumed, are questions of fact not dependent on any system of law except where excluded by written law.
- Where parties have capacity to marry and evince by long cohabitation or other circumstances an intention to live as husband and wife, a marriage may be presumed.
- No marriage can be presumed in favour of a party in a relationship where one of them is married under statute; but where the existing marriage is under a system permitting polygamy, capacity to marry another subsists.
- Under section 3(5) of the Law of Succession Act, a woman married under a system of law permitting polygamy is a wife for purposes of the Act notwithstanding her husband's previous or subsequent monogamous marriage.
- The Machani vs. Vernoor statement on concubinage was obiter and distinguishable on its facts where the woman was still married to a third party and the man rejected both her and the children.
Court orders
#- 1.Appeal dismissed (by majority of Bosire and Tunoi, JJ.A)
- 2.Costs to the respondent both in the appeal and in the court below
The bench
#Judges wrote separately. A dissent does not bind; a concurrence may narrow the ratio.
Wrote the judgment
Wrote the leading judgment holding that on the facts a marriage could be presumed from long cohabitation, family recognition and the birth of three children, that the relationship was not bigamous given Kikuyu customary law capacity for polygamy, and dismissed the appeal with costs.
In the result I would dismiss this appeal with costs to the respondent, both here and in the court below.p. 4
Wrote the judgment
Concurred fully with the judgment of Bosire, J.A., adopting the proposed orders as those of the Court.
I have had the advantage of reading in draft the judgment prepared by Bosire, J.A. I agree with it in every respect, and cannot usefully add anything.p. 4
Wrote the judgment
Dissented, holding that a presumption of marriage is a stranger to Kikuyu customary law, that cohabitation and payment of rent do not constitute the essential ingredients of a Kikuyu customary marriage, that section 3(5) of the Law of Succession Act did not apply to the respondent, and would have allowed the appeal and set aside the decree.
In the result, I would set aside the decree dated 13th May 2008 and issued on 21st January 2009 and order that the letters of administration be issued in the sole name of the appellant herein.p. 9
- On appeal from
- High Court of Kenya
- Eld HC P & A 244 of 2002
- Jurisdiction invoked
- First appellate jurisdiction over the High Court in a succession cause (Law of Succession Act; appeal from judgment and decree of Ibrahim J)
Relief refused
#The appellant's challenge to the finding that the petitioner was the deceased's widow under section 3(5) of the Law of Succession Act
The evidence of long cohabitation, family recognition and three children supported the presumption of marriage, and the relationship was not bigamous
Costs
Costs to the respondent, both here and in the court below
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the result I would dismiss this appeal with costs to the respondent, both here and in the court below.
I have had the advantage of reading in draft the judgment prepared by Bosire, J.A. I agree with it in every respect, and cannot usefully add anything. As I concur with the orders proposed by him, those shall be the orders of the Court in this appeal.
The existence or otherwise of a marriage is a question of fact. Likewise, whether a marriage can be presumed is a question of fact.
In circumstances where parties do not lack capacity to marry, a marriage may be presumed if the facts and circumstances show the parties by along cohabitation or other circumstances evinced an intention of living together as husband and wife.
In the foregoing circumstances it cannot be said that the relationship the deceased had with the petitioner is bigamous.
The cases of Machani and Njoki (the majority decision) were based on the old thinking.
Issues in the judgment
#The court's own finding of no formal marriage sits alongside the declaration of a presumed marriage; the dissent characterises the trial judgment as self-contradictory.
The delivery location is inconsistent between the judgments: Bosire and Nyamu, JJ.A. dated delivery at Nairobi while Tunoi, J.A. dated delivery at Eldoret.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "M.W.G v E.W.K [2010] KECA 322 (KLR)", Case Analysis (2010). Civil Appeal 20 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/322/eng@2010-04-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.