M N M v D N M K & 13 others [2017] KECA 172 (KLR)

None of the parties pleaded that M's marriage was vitiated by a prior customary marriage; their case was divorce and remarriage. The judge's finding that the deceased was married to D under Kikuyu customary law was pure speculation, as a customary marriage must be proved by evidence. The marriage certificate, presumptively genuine under section 83(1) of the Evidence Act and declared admissible by section 34 of the repealed Marriage Act, indicated the registrar had been satisfied as to capacity. Separation alone did not defeat M's status as widow, since the Law of Succession Act includes a separated wife.

The judge erred by confining himself to the absence of witnesses from the community and ignoring the family's own sworn depositions and conduct over thirty years recognising E as a wife, her appointment as administrator of the fourth house, the clan's transfer of ancestral land to her, and partial confirmations of grant treating her as a widow. The presumption of marriage arises from long cohabitation and repute, does not depend on rites and ceremonies, and is rebuttable only by cogent evidence. Further, section 3(5) of the Law of Succession Act recognised as a wife a woman in a potentially polygamous union notwithstanding a prior monogamous marriage.

The partial confirmations of grant by Koome and Nambuye, JJ. were under section 71 of the Law of Succession Act, identified the beneficiaries and conferred legal rights on M and E which could not be taken away arbitrarily save by appeal or proper review. The judge's jurisdiction was concurrent, not appellate. Further, the respondents' own depositions, citations, pleadings and consent orders over decades represented that the deceased had four houses with M and E as widows; section 120 of the Evidence Act estopped them from denying that truth when it suited them.

Although section 118 of the Evidence Act provides conclusive proof of legitimacy for a child born during a valid marriage or within 280 days of its dissolution, its application here was problematic because E's marriage and S's paternity were hotly contested. The judge reasonably ordered a DNA test; S, who did not testify, failed to undergo the test and offered excuses rather than reasons. Samples from the deceased were not the only means of determining paternity, as demonstrated in EMM v. IGM.

The land, intended as the deceased's inheritance, was transferred to E only after his death by a clan that had no capacity under the Law of Succession Act to deal with estate property. On the shares, the trial judge raised and determined an unpleaded issue on his own motion, which a court cannot do, and misread the Companies Act: sections 75, 78 and 79 permit a personal representative to transfer shares in accordance with the company's articles, including to a nominee. The onus lay on the respondents to show the articles forbade such transfer.

The transaction was purely between the administrators and Impulse; the SFT's role was peripheral as holder of the documents of title, so the exemption in section 6(3)(b) of the Land Control Act did not apply. Section 6 voids controlled transactions without consent, section 22 criminalises their furtherance, and courts will not enforce such transactions irrespective of how the illegality surfaces; the purchaser's remedy is recovery of money paid as a debt under section 7. Fraud was independently established, including under-declaration of the purchase price for stamp duty.

The court noted that re-distribution would require evidence not before it, including surveyors' reports, and determination of who withdrew the Kshs 284 million held by advocates in breach of a court order. Under rule 31 of the Court of Appeal Rules the matter was remitted to the High Court for re-distribution by a judge other than Musyoka, J. The consent order guaranteeing Tangulizi 4.5 acres from B's share was valid, binding on M who was party to it, and not set aside.