Eunice Chebichii Kipkosgei & Another v Esther Jeptanui Kiptoo & Another

3. The respondents opposed the petition vide an objection dated 28th May 2007 and answer to petition and cross application for grant dated 26th May 2010, on grounds that: the respondents had been left out from the list of beneficiaries, that their consent was not obtained, and that pursuant to a family meeting held on 24th August 2006, the property of the deceased had been distributed. 4. The 1st respondent claimed that she was the first wife of the deceased, whom she had married in 1981 under Nandi customary law, and that together they had brought forth the 2nd respondent. 5. In a replying affidavit dated 16th June 2007, the appellants termed the respondents as strangers, with no share in the estate of the deceased. The 1st appellant contended that she was the only legal wife of the deceased whom she married on 20th November 1999 at Chamina Catholic Church. The appellants deny having attended any family meeting at which the estate of the deceased was distributed. 6. The respondents filed parallel succession proceedings vide Eldoret HC P&A No 67 of 2007, joining the 1st appellant as a co-petitioner. Pursuant to an application dated 24 th May 2007, the two matters were consolidated with Eldoret P&A Cause No 59 of 2007 being the lead file. The main contention was whether the 1st respondent was married to the deceased under Nandi customary law and whether the 2 nd respondent was a beneficiary of the estate. 7. After a full trial, the High Court found in favour of the Page 2 of 10

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respondents. It held that the 1st respondent’s marriage preceded Page 3 of 10

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the union of the deceased with the 1st appellant and that indeed it was the 1st respondent who should have complained that the deceased lacked capacity to contract a subsequent monogamous marriage. Consequently, the Court held the1st appellant and the 1st respondent to be equal dependents of the deceased and therefore qualified administrators of his estate. The court went ahead to appoint the appellants and the respondents as joint administrators of the estate of the deceased and directed that confirmation of the grant be executed within three months. 8. The appellants were dissatisfied with this outcome, and filed a memorandum of appeal raising six grounds, all revolving around one issue: whether the learned Judge was right in holding that there was a customary marriage between the deceased and the 1st respondent, and whether the Judge was right in holding that the 2nd respondent was a child of the deceased and therefore a beneficiary of the estate. 9. This being a first appeal, we are duty bound to re-evaluate and re-analyse the evidence on record and to draw our own conclusions, while bearing in mind that we did not have an opportunity to see and hear the witnesses. 10. The duty of a first appellate court was set out in Selle & Another vs Associated Motor Boat Co. Ltd & Others [1968] EA 123 as follows: “An appeal to this court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always Page 4 of 10

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bear in mind that it has Page 5 of 10

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neither seen nor heard the witnesses and should make due allowance in this respect.” 11. In discharging our mandate, we will begin by reconsidering the evidence adduced before the trial court by the respective parties. The 1st respondent, Esther Jeptanui Kiptoo testified that she got married to the deceased in 1981 under Keiyo customary law, after which she moved to Soi where she lived with the deceased as husband and wife, on land belonging to the deceased’s brother. She further testified that out of this union the 2nd respondent, Edna Jesang was born in 1982, as an only child. 12. The 1st respondent described the customary marriage ceremony conducted at her parents’ home, which was presided over by elders. The elders present were named as Magarina Chesire, the late Anyole and John Kiptanui Too. The 1st respondent explained that sometime in 1982, differences emerged between her and the deceased, causing her to move back to her parents’ home together with the 2nd respondent, who later went to stay with the mother of the deceased until 2004 when the latter passed away. 13. The 1st respondent confirmed that the 1st appellant was married to the deceased in 1985 as a second wife. She added that following the death of the deceased, a family meeting was held at which distribution of the estate was agreed upon. 14. The 2nd respondent, Edna Jesang Kosgei testified that she was a daughter of the 1st respondent and the deceased. She further testified that she lived with her grandmother, the Page 6 of 10

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deceased’s mother at Moiben grandmother passed Page 7 of 10 until 2004 when the

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away, upon which the 2nd respondent went to live with her mother on her father’s land at Toroch Moi. 15. The respondents’ third witness was John Kiptanui Too, an elder who was present at the customary marriage ceremony between the 1st respondent and the deceased. Too testified that the 1st respondent and the deceased were well known to him. He confirmed that the deceased visited the father of the 1st respondent and asked for her hand in marriage, after which he paid dowry, which was followed by a Nandi customary marriage ceremony conducted by an elder known as ‘Boiyoaptum’. Too added that he attended the ceremony as ‘Motiryot’ or translator. 16. The fourth witness for the respondents was Dr. Omar J. Ally, a psychiatrist who testified that he had treated the deceased for depression since 1993. He produced a medical report dated 11th October 2007. 17. On her part, the 1st appellant, Eunice Chebichii Kipkosgei testified that she was the sole widow of the deceased. She produced a marriage certificate dated 20 th November 1999. According to the 1st appellant, the deceased did not suffer from any mental illness. 18. The 1st appellant maintained that the respondents were strangers to the estate of the deceased and indicted their recognition by the deceased’s brother, one Christopher. She points out that she was not in good terms with her in-laws, with whom she had not spoken for ten years. 19. The 2nd appellant, Viola Cheruto Kiptum testified that she Page 8 of 10

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was a daughter of the 1st appellant and her siblings were Amos Page 9 of 10

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Kiprono, Loice Cheptanui and Flavian Kipkemboi. She told the trial court that she had never heard of nor seen the respondents. She confirmed that the deceased’s brothers, Christopher and Jackson were not in good terms with her mother. 20. The 1st appellant submitted that her marriage to the deceased was monogamous and could not subsist while the alleged customary marriage subsisted. She added that the 2nd respondent did not prove dependency on the deceased, in terms of section 29 of the Law of Succession Act. The appellants stressed that the paternity of the 2 nd respondent could have been proved by Deoxyribonucleic Acid (DNA) evidence, which was not presented. 21. The appeal was heard before us on 9 th June 2026, with learned counsel, Mr. Kigen, appearing for the appellants and learned counsel, Mr. Tum, appearing for the respondents. The parties relied on their written submissions dated 5 th June 2026 and 26th May 2026 respectively. 22. Before considering the appeal on merit, we will dispense with the question whether the appellants needed to obtain leave prior to filing their appeal. It is indeed true that until recently there were two schools of thought as to whether leave was necessary or not, and as a result there were conflicting judgments on the issue. However, the issue was settled by the Supreme Court decision in Wandi vs Muchira (Suing as Administrator Ad Litem of Jane Muthoni Muchira) [2026] KESC 29 (KLR) which held that litigants have an automatic right of appeal before this Court in succession matters arising from the High Page 10 of 10

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Court. It follows, therefore that leave is not a prerequisite and this issue is therefore moot and we will leave it there. 23. The next question is whether the 1st respondent had proved that she was the wife or former wife of the deceased. The appellants’ case was that the alleged customary marriage had not been proved. They asserted that the ingredients of a customary marriage being; capacity, consent, family participation, payment of dowry, performance of essential ceremonies and public recognition of the marriage were not sufficiently proved. 24. The appellants further argued that the marriage, having been conducted under Nandi customary law whereas the parties were from the Keiyo community, raised doubts regarding its veracity. The appellants added that the period that the 1st respondent cohabited with the deceased was too short to lead to a presumption of marriage. 25. Regarding the 2nd respondent, the appellants submitted that there was no evidence of parental support by the deceased. The appellants urged that there was no birth certificate or DNA evidence to prove paternity. Relying on section 3(2) of the Law of Succession Act, the appellants averred that the deceased had not assumed permanent responsibility over the 2nd respondent, as his child. 26. In their submissions dated 26th May 2026, the respondents supported the decision of the High Court, by which it was established that the 1st respondent was a former wife of the deceased and that the 2nd respondent was his child. The respondents stated that the essential elements of a Nandi Page 11 of 10

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customary marriage being; capacity, consent and commencement of cohabitation had been sufficiently proved. 27. The respondents argued that notwithstanding the separation between the 1st respondent and the deceased, under the Law of Succession Act, the 1st respondent was recognized as a former wife and a dependant. They further argued that the 2nd respondent, being a daughter of the deceased ranked in priority under section 29 of the Law of Succession Act. 28. This appeal turns on the question whether the 1 st and 2nd respondents qualify as dependants of the deceased. Section 29 of the Law of Succession Act defines a dependant to include: (a) the wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death; 29. In its decision in E.M.M vs I.G.M [2013] KECA 37 (KLR) this Court affirmed that under section 29 of the Law of Succession Act, a biological child or legal spouse qualifies automatically as a dependant exempt from the requirement of proof that they were being supported by the deceased prior to death. 30. Regarding proof of paternity and dependency, the Court in E.M.M vs I.G.M (supra), held that claimants asserting status under section 29 of the Law of Succession Act must establish, on a balance of probabilities, either lineage, formal recognition, or actual immediate support by the deceased. Page 12 of 10

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31. The 1st respondent’s stake in the estate of the deceased is predicated on a customary marriage, which she described in great detail. Her evidence was corroborated by John Kiptanui Page 13 of 10

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Too, an elder who witnessed the customary marriage between the 1st respondent and the deceased. In addition, at a family meeting held after the death of the deceased, the 1st respondent was recognized as a former wife of the deceased and the 2nd respondent as a child born out of that union. The trial court evaluated and was satisfied with this evidence. Having evaluated the evidence, we are equally satisfied that indeed there was customary marriage between the 1st respondent and the deceased and that the 2 nd respondent was a child born out of that union. 32. In its decision in Waiyaki & Another vs Kamau & Another [2024] KECA 1151 (KLR) this Court affirmed that under the Law of Succession Act, a child within wedlock is presumed to be sired by the deceased father, unless there is cogent evidence to the contrary. The appellants argued that because there was no DNA testing, then the 2 nd respondent had no lineage to the deceased. However, the law as established is that DNA testing is not mandatory for beneficiaries seeking inheritance, unless there is proof that the deceased had denied paternity during their lifetime. 33. Regarding the claim by the 1st appellant that her marriage to the deceased was monogamous and could not subsist alongside a customary marriage, we will say this: by the time the monogamous marriage was contracted, the 1 st respondent and the deceased were no longer living together as husband and wife. In any event, as we have already stated in the foregoing part of this judgment, the customary marriage preceded the monogamous marriage and any fault can only be assigned to Page 14 of 10 the subsequent marriage.

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Moreover, even assuming that the Page 15 of 10

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customary marriage had ceased to exist, the place of the 1 st respondent as a former wife, and the 2 nd respondent as a child, remained intact. 34. Overall, we agree with the trial court that the 1 st and 2nd respondents’ stake in the estate of the deceased was established by clear and cogent evidence. Having considered all the grounds unmeritorious. of appeal, we hold that Consequently, the appeal they fails and are is dismissed. 35. This being a family matter, we direct that each party will bear their own costs. Dated and delivered at Eldoret this 25th day of September, 2026. M. GACHOKA C.Arb, FCIArb …………………….………….. JUDGE OF APPEAL W. KORIR …………………….………….. JUDGE OF APPEAL L.M. NDOLO …………………….………….. JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR. Page 16 of 10

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