Come-we-stay as good as marriage, rules court in succession dispute

Court gavel

Family Court judge Justice John Onyiego declared that TNI was a beneficiary under Section 3(5) of the Law of Succession Act and, therefore, is entitled to a share of the estate as HO’s wife. 

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No photographs of dowry negotiations or even a witness? No problem; long cohabitation is enough proof of marriage in case a dispute arises over the wealth of your spouse.

The High Court’s Family Division, sitting in Mombasa, has declared that a woman, referred to as TNI in court documents, is entitled to a share of her deceased husband’s estate for cohabitating with him (HO) for over five years, despite failing to prove the existence of marriage under Kamba customary law.

Justice John Onyiego declared in his ruling that TNI was a beneficiary under Section 3(5) of the Law of Succession Act and, therefore, is entitled to a share of the estate as HO’s wife.

“From the evidence on record, the deceased had indeed cohabited and presented to the general public and right-thinking men and women in society that they were living together as husband and wife,” said the judge.

The judge also declared that HO was polygamous, meaning TNI and his second wife, YO, will share personal effects and the rest of the properties equally.

Decades-long dispute

The dispute over the inheritance of HO’s estate, which was largely based on who was the rightful widow, began in 2005 after his demise. The estate included land, household goods and vehicles worth millions of shillings. In 2005, YO petitioned for a grant of representation in the inheritance of HO’s estate, listing herself and HO’s two daughters as the only beneficiaries.

However, in 2006, TNI and the man’s first wife, GO, claimed to be HO’s widows and filed an objection, stating that they had not been consulted before the petition was filed and that YO was attempting to disinherit them. They also claimed that YO had received the HO’s pension without accounting for it.

Letters to administer the estate were issued to YO in 2019. She had proposed that the estate be shared equally among herself and HO’s daughters. TNI testified that she had met HO in 1999 when he visited Kenya as a tourist. She claimed HO had confided in her that he had divorced his first wife, GO, in 1976 and married YO in 1985, but they separated in 1999. TNI said HO had proposed to marry her and that they had visited her rural home in Ukambani, where she introduced him to her family as her intended husband.

She claimed they then moved back to Mombasa and started living together as husband and wife.

The court also heard the deceased filed a petition to divorce YO in 2004, but he died before the divorce could be finalised.

TNI denied being married to another German national and dismissed a marriage certificate produced as evidence of her marriage to another German as fake. HO’s daughters denied TNI’s claim of marriage to HO. They recognised YO as the only lawful widow of the deceased, not TNI or their mother.

Justice Onyiego ruled that TNI failed to prove the existence of a marriage between her and HO under Kamba customary law. TNI, he said, did not establish whether any bride price negotiations ever took place or whether any cultural rites or rituals or formalities were performed. She also did not tell the court how much dowry was paid and in whose presence.

Despite these findings, TNI won the case based on the argument that she had cohabited with HO for over five years after he separated from his second wife.