Esther Wanjiku Njau & another v Mary Wahito [2015] KECA 594 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that living together as husband and wife for years creates a legal marriage, even without formal customary ceremonies.
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 respondent was a wife of the late Joseph Njau Kairu - whether a valid Kikuyu customary marriage was celebrated between them
- 2.Whether, alternatively, a marriage between the respondent and the deceased arose by presumption based on long cohabitation and repute
- 3.Whether the trial judge's order on costs, with interest from the date of filing suit, was punitive and ought to be disturbed
Key legal issues
#Whether a valid Kikuyu customary marriage was celebrated between the respondent and the deceased
No valid Kikuyu customary marriage was proved; the evidence of full performance of the requisite rites and ceremonies was scanty and no witness who attended the ceremonies testified to their nature.
The court applied Mwagiru v Mumbi, which requires a series of rites culminating in the declaration of mutual interest with the woman's consent and the slaughter of a sacrificial ram. In the present case there was no evidence from any person present at the ceremonies performed at the respondent's home establishing that the functions constituted the landmarks of a customary marriage. The activities described, including gifts, beer and slaughtered goats, showed at most part celebration such as ruracio, insufficient to prove a valid Kikuyu customary marriage.
Whether a marriage arose by presumption from long cohabitation and repute
Yes - the respondent was the wife of the deceased by presumption of marriage based on cohabitation since about 1974 and general repute, which was unrebutted.
Evidence from relatives, neighbours and the insurance agent established that the parties lived together, were introduced to each other's families, had two children together, the deceased educated the respondent's children, bought or guaranteed houses for them, and they were received and treated as husband and wife in family and social circles. The appellants alleging that supporting witnesses lied adduced no proof of that. The presumption was therefore available and was not displaced.
Whether the trial judge's costs order with interest from filing was punitive and should be disturbed
No - the discretion under section 27 of the Civil Procedure Act was properly exercised and the order was not disturbed.
The court acknowledged that judicial discretion must be exercised judicially or it will interfere, but held that not much was said to demonstrate punitiveness. Section 27 empowers the judge to order costs and direct who should pay. Since no impropriety in the exercise of the discretion was demonstrated, the appellate court declined to interfere with the costs order including interest from the date of filing suit.
Whether affidavits of deponents who did not orally testify could be relied on at the appeal stage
Such affidavits form part of the record and can stand as valid sworn evidence, but this Court declined to rely on the three affidavits because their contents did not feature in the decision under appeal.
The court held that affidavits admitted at the start of the hearing constitute written evidence on oath which can stand as valid evidence on their own without cross-examination where their makers do not testify. However, because the learned trial judge did not advert to these three affidavits in arriving at his decision, incorporating them at the appeal stage would be introducing new material; the court restricted itself to the evidence of deponents heard orally.
Legal principles established
#- A presumption of marriage arises from long cohabitation as man and wife coupled with general repute, and only cogent evidence to the contrary can rebut it; customary rites of marriage need not first be performed for such a presumption to arise.
- The presumption of marriage is a common law principle that applies irrespective of the system of marriage and is not displaced by customary marriage or statute.
- On a first appeal, the Court of Appeal is not bound by the trial judge's findings of fact and may re-evaluate the evidence, subject to the absence of the advantage of seeing and observing the demeanour of witnesses.
- A valid Kikuyu customary marriage requires proof of performance of the requisite series of rites and ceremonies, with particular emphasis on the declaration of mutual interest with consent of the woman and her parents, and the slaughter of the sacrificial ram.
Court orders
#- 1.The three affidavits of deponents who did not testify orally (Rufus Kiratu Ngatia, Charity Mumbi Mwaniki and Mary Wambui Kairu) were not incorporated as evidence on appeal since their contents did not feature in the decision appealed against
- 2.The High Court decision, including the finding that the respondent was the deceased's wife by presumption of marriage and the burial orders, was upheld
- 3.The appeal was dismissed
- 4.The appellants were ordered to pay costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No.303 of 2005
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Rules/Appellate jurisdiction (appeal as of right from the High Court)
Relief refused
#Expungement of the three affidavits of deponents who did not orally testify
Their contents did not feature in the decision appealed against and no prejudice befell any party
Setting aside the finding that the respondent was the deceased's wife
Evidence of long cohabitation and repute was unrebutted and supported a presumption of marriage
Disturbance of the costs order with interest from the date of filing suit
It was not demonstrated that the learned judge improperly exercised his discretion on costs
Costs
The appeal is dismissed and the appellants are hereby ordered to pay costs to the respondent; the High Court order that the costs of the suit be borne by the plaintiffs with interest from the date of filing suit is upheld.
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.
By presumption of marriage Njau and the respondent were husband and wife.
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 presumption
Presumption of marriage is a common law principle not displaced by customary marriage or even by statute. It is beneficial to the institution of marriage and if we may add, society as a whole.
there has been scanty evidence on the full performance of due rites and ceremonies to show that Njau and the respondent contracted a Kikuyu customary marriage
An appeal from the High Court is by way of re-trial and the Court of Appeal is not bound to follow the trial judge's findings of fact if it appears either that he failed to take account of particular circumstances or probabilities or if the impression of the demeanour of a witness is inconsistent with the evidence generally.
They constitute written evidence made on oath. They could stand as valid evidence on their own and did not require cross-examination, if their makers were not called to orally testify, as the case was here.
In the result, we uphold the High Court decision together with the order on costs. Consequently, the appeal herein is dismissed. The appellants are hereby ordered to pay costs to the respondent.
Issues in the judgment
#The citation for Selle v Associated Motor Boat Co is rendered incompletely as [1968] 123, omitting the full page/EA reference
The years of marriage stated by the parties conflict within the judgment (respondent claimed 1972 in the succession cause but 1974 at trial; the record also variously describes the 2nd appellant as married in 1975/1977), though the court held the exact date immaterial
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Esther Wanjiku Njau & another v Mary Wahito [2015] KECA 594 (KLR)", Case Analysis (2015). Civil Appeal No.270 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/594/eng@2015-07-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.