What you need to know:
A woman who lived with a former senior army officer for 15 years as his first wife will get a quarter share of his property after a court quashed his other wife's bid to leave her out.
Ms Elizabeth Mutinda, who claimed to be the only legitimate widow to the late Lieutenant Colonel Robert Ngundo, has lost her bid to lock out the deceased’s first wife, Ms Zipporah Moraa, from inheritance after the court held that Ms Moraa is the legal widow.
Ms Moraa had previously testified that she only heard of her co-wife from a newspaper obituary.
No proof of divorce
In her ruling on Wednesday, Nakuru High Court Judge Rachel Ng’etich noted that there was no evidence tabled before court to prove divorce between Mr Ngundo and Ms Moraa before he married Ms Mutinda.
According to the judge, Mr Ngundo had no capacity to enter another marriage by the time he met Ms Mutinda since he was still legally married to Ms Moraa.
“There is no proof that the deceased dissolved his first marriage to the protestor (Ms Moraa). He thus had no capacity to conduct a second marriage to Mutinda under the Marriage Act,” ruled Justice Ng’etich.
Mr Ngundo, who was a soldier at the Gilgil Garrison, died in Entebbe, Uganda, on December 22, 2013 while on his way back to Kenya from a mission in Sudan.
Until his death, the Kenya Defence Forces (KDF) soldier owned a number of properties valued at millions of shillings. They included estates in Gilgil town, two others in Kathonzweni, Machakos County, several vehicles, shops and rental houses in Lanet, Nakuru County. He also had money held in several financial institutions including Co-operative Bank.
Upon his death, Ms Mutinda moved to court seeking to be granted letters of administration to Mr Ngundo’s estate claiming to be the deceased’s only widow. In her petition, she also sought to block Ms Moraa from inheriting any of the KDF soldier’s property.
Appearing before court, she said that she is the only surviving widow following their marriage in 1999. This, she said, was after Mr Ngundo separated from Ms Moraa in 1997.
She also argued that Ms Moraa never contributed anything to Mr Ngundo’s wealth, which Ms Mutinda said was acquired during their period of his marriage to her.
“She never contributed in any way in the acquisition of the property. She disappeared for 15 years only to reappear after my husband’s death claiming to be a widow,” said Ms Mutinda.
She also told the court that she took in Ms Moraa’s three children and had raised them as her own. To support her claims, she told the court that the KDF recognised her as his wife and even indicated the same in the obituary.
“Three of my husband’s colleagues came to my home to report of my husband’s death as they recognised me as his spouse. All the messages of condolences were sent to me,” said Ms Mutinda.
The court heard that Ms Moraa neither took part in the funeral arrangements nor attended the burial ceremony. However, Ms Moraa in her objection refuted the claims and insisted that she was Mr Ngundo’s legitimate widow.
Lt Col Ngundo’s elder brother, Mr Alphonce Nyiwa Mbui, had said that his family acknowledged Ms Mutinda as his brother’s only wife. He claimed that during his first marriage, Ms Moraa had proved to be a bother to his late brother as she kept leaving her matrimonial home.
He further told the court that Ms Mutinda lived with Lt Col Ngundo and even sired three children with him.
“My brother married Ms Mutinda in 1999 in a Kamba customary ceremony and they lived together as husband and wife. It was Ms Mutinda who took care of the three children who were abandoned by Ms Moraa,” said Mr Nyiwa.
Ms Moraa had told the court that she only came to learn of the existence of another wife from a newspaper obituary.
“I went to read the obituary in a national newspaper and I noticed that a stranger, Elizabeth Mutinda, was also listed as the wife of the deceased. That shocked me!” said Ms Moraa.
She accused Ms Mutinda of trying to disinherit her by excluding her from her husband’s burial arrangements and listing her children as hers. She also told the court that she was married to Mr Ngundo in 1992 through a civil wedding and had never separated from him. She sought to be declared the legal widow with the right to benefit from her deceased husband’s wealth.
Justice Ng’etich in her ruling noted that under the amended Succession Act, Ms Mutinda is allowed to inherit part of Mr Ngundo’s property since she proved that she had a relationship with him.