QUESTION 5
Analyse each person’s entitlement to Manda Chima’s estate.
In Kenya, the law of succession determines how a deceased person's estate is distributed,
primarily depending on whether the individual left a valid will (testate) or died without one
(intestate). However, as established in the analysis of the present matter, the will drafted by Mr.
Manda Chima was found invalid, meaning his estate will be distributed in accordance with the
intestacy provisions set out in Part V of the Law of Succession Act (LSA).
The LSA provides detailed rules for the distribution of an intestate estate, prioritising spouses
and children, with other relatives and dependents only entitled to inherit if there is no surviving
spouse or child, or if they can prove dependency, as outlined in Section 29. This legal framework
underscores the importance of first identifying the lawful dependents, particularly the number
and status of wives and children, before determining their entitlements under the intestacy rules.
Determine whether Nelly Kesho, Millia Wetu, Maria Mwezo, and Penzi Zuri will be
entitled to the estate.
NELLY KESHO
Manda Chima married Nelly Kesho under African customary law in 2011, following the
payment of a dowry and the completion of all necessary rituals. Section 3(1) of the LSA provides
that ‘a spouse means a husband or wife recognised under the Marriage Act. Part V of the
Marriage Act provides for Marriage under Customary Law. Particularly, in Section 43 (2), it
states that ‘Where the payment of dowry is required to prove a marriage under customary law,
the payment of a token amount of dowry shall be sufficient to prove a customary marriage.’ This
position is highlighted in JOK V SAO [2018] KEHC 8247, (KLR), where the court emphasised
the provisions of Section 43. In this, it is clear that Manda paid the dowry, hence there is proof of
a customary marriage.
Despite Manda’s subsequent monogamous marriage to Millia, section 3(5) still applies. It
provides that ‘Notwithstanding the provisions of any other written law, a woman married under a
system of law which permits polygamy is, where her husband has contracted a previous or
subsequent monogamous marriage to another woman, nevertheless a wife for the purposes of this
Act, and in particular sections 29 and 40 thereof, and her children are accordingly children
within the meaning of this Act.’ This provision expresses that a woman married under customary
law is considered to be a wife for purposes of succession even though her husband contracted a
subsequent monogamous marriage.
This was buttressed in the local classicus of Irene Njeri Macharia v Margaret Wairimu Njomo
& Another [1996] eKLR, where the Court of Appeal held that section 3 (5) was meant to cater
for women who had contracted customary marriages with men who had previously or
subsequently contracted monogamous marriages, without dissolving their customary marriages.
This decision overturned the decision in Re Ogola’s estate and Re Ruenji’s estate, which had set
a precedent that such women would not amount as wives for purposes of succession, hence could
not inherit. It set straight that such women could inherit. This can be elaborated in Sophia
Wangechi Mugo v Geoffrey Wambugu Mugo & another [2016] eklr, where the courts affirmed
the intent of Section 3 (5) to recognise previous marriages for purposes of succession.
In conclusion, Nelly is legally recognised as Manda Chima’s wife under customary law since she
is protected by Section 3 (5) LSA. Therefore, she qualifies as a dependent according to Section
29 (a) LSA and is entitled to Manda’s estate.
MILIA WETU
Section 3(1) of the LSA provides that a spouse shall mean a husband or wife who is recognised
under the Marriage Act. However, Section 9 of the Marriage Act provides that, “in the case of a
subsisting marriage, a person in polygamous or potentially polygamous marriage shall not
contract another marriage in any monogamous form.” Further, Section 11(1) (c) states that a
marriage shall be void if either party is incompetent to marry by reason of a subsisting
marriage.”
Manda Chima was still legally married to Nelly Kesho under customary law. According to
Section 11(1)(c) and Section 9 of the Marriage Act, the main law governing marriages and their
validity in Kenya, a person cannot enter into a new monogamous marriage while a previous
marriage still exists. Since Manda Chima’s marriage to Nelly Kesho had not been legally
dissolved, he was not legally competent to marry Milia Wetu. The only lawful ways to end a
marriage in Kenya are through divorce or the death of a spouse, and neither had occurred in this
case. Therefore, Manda Chima’s marriage to Milia Wetu was void from the beginning.
The Court in the case of Irene Njeri Macharia vs Margaret Wairimu Njomo [1996] eKLR
stated that:
A valid customary law marriage is never dissolved by a statutory marriage. It is the statutory
marriage superimposed upon a subsisting valid customary law marriage that would be invalid.
A woman in such a marriage would not be able to call in her aid Section 3(5) because the
statute under which she purported to marry is „a system of law which does not permit
polygamy.’
In summary, the law in Kenya is clear that a person cannot contract a monogamous marriage
while a previous marriage, customary or otherwise, still subsists, unless that marriage has been
lawfully dissolved by divorce or by the death of a spouse. The Marriage Act, specifically
Sections 9 and 11(1)(c), renders any such subsequent monogamous marriage void if one party is
already married. This position was affirmed in the case of Irene Njeri Macharia vs Margaret
Wairimu Njomo [1996] eKLR, where the court held that a statutory marriage cannot override a
valid customary marriage, and any attempt to do so results in an invalid union.
Applying these legal principles, Manda Chima’s marriage to Milia Wetu is void ab initio, as his
customary marriage to Nelly Kesho was still in force and had not been dissolved. Consequently,
Milia Wetu cannot be recognised as a lawful wife for legal purposes under Kenyan law.
MARIA MWEZO
Section 6 of the Marriage Act provides for four types of marriages: civil, Christian, customary
and Hindu marriage.1 Manda and Maria did not take part in any of the unions recognised.
However, the Courts have provided recourse through the presumption of marriage. The Supreme
Court in MNK v POM (Petition 9 of 2021) [2023]2 Provided principles that must be proved for
the Presumption of marriage to be held to exist;
1. The parties must have lived together for a long period of time
Manda Chima and Maria Mwezo met in 2017 and later had a child named Johnny. Manda Chima
died on 20th December 2024, and therefore they had lived together for eight years. The Supreme
Court in para. 57 in affirming the High Court position held,
“On the issue of long cohabitation, the High Court held at paragraphs 21 & 22 as
follows: So what do I make of the material that was placed between the plaintiff and
the defendant? I am satisfied that the plaintiff and the defendant were indeed living
1
2014 CAP 150
2
KESC 2 (KLR) (27 January 2023) Judgment
together. It would appear that some people might have at that time considered them to
be husband and wife.” [emphasis added]
2. The parties must have the legal right or capacity to marry
Manda Chima was married to Nelly Kesho under customary law in September 2011, as dowry
was paid and all necessary rituals under customary law were done. Manda Chima, later on 30th
April 2015, got married to Millia Wetu under a statutory marriage, which has been found void by
virtue of Manda Chima lacking legal capacity to contract a statutory marriage as he was already
married under customary law.
The Court of Appeal in Machani v Vernoor [1985] KLR 859 held that
“The presumption covers two aspects: that the parties must have the capacity to enter
into a marriage and that they did so in effect. During the continuance of a previous
marriage, the already married party would have no capacity to enter into the new
marriage, and the new marriage would be null until the previous marriage had been
brought to an end by a final decree or divorce.”3
Due to the continued customary marriage between Manda Chima and Nelly Kesho, Manda
Chima did not have the capacity to marry Millia Wetu. Customary law marriages are
polygamous in nature, granting the man the legal capacity to contract another marriage under
customary law. Therefore, Manda Chima had the legal capacity to marry under customary law
and thus could cohabit with Maria Mwezo.
3. The parties must have intended to marry
The fact that both Manda Chima and Maria Mwezo had the legal capacity to marry and that they
held themselves to the public as a married couple shows their intention to marry. Manda Chima
also introduced Maria Mwezo to Nelly Kesho and Millia Wetu as his wife in one of the family
gatherings.
4. There must be consent by both parties.
A marriage is a voluntary union, and Manda Chima and Maria Mwezo voluntarily held
themselves as couples, and there were no signs of duress on either of them.
5. The parties must have held themselves out to the outside world as a married couple
Manda Chima introduced Maria Mwezo to Nelly Kesho and Millia Wetu as his wife in one of
the family gatherings, and they had sired a child together by the name of Johnny.
3
[1985] KLR 859
In Hortensia Wanjiku Yawe v Public Trustee Nairobi {1976} eklr, the court held:
“To sum it up, there has to be evidence that the long cohabitation is not a close
friendship between a man and woman, that she is not a concubine, but that the
cohabitation has crystallised into a marriage and that it is safe to presume that there is
a marriage…. To my mind, presumption of marriage, being an assumption, does not
require proof of an attempt to go through a form of marriage known to law.”
6. The onus of proving the presumption is on the party who alleges it
Section 109 of the Evidence Act provides that “The burden of proof as to any particular fact
lies on the person wishing the court to believe in its existence unless it is provided by any law
that the proof of that fact shall lie on any particular person.” Maria Mwezo is required to
prove the assertion that a marriage ought to be presumed between Manda Chima and her; thus,
she will have to adduce evidence of the long cohabitation and that the public regarded them as
husband and wife from their conduct. In CWN v DK [2021]eklr,4 The Court held that “ as far as
presumption of marriage is concerned it is a status or relationship that turns much on
evidence as much as it is a presumption of law” noting that the burden lay on Maria Mwezo to
prove the existence of a presumption of marriage and the standard of proof is on a balance of
probabilities.
7. The evidence to rebut the presumption proven by Maria Mwezo by another party has to
be strong, distinct, satisfactory and conclusive.
In conclusion, Maria Mwezo is neither a wife under the 4 recognised forms of marriage and can
only be presumed a wife for purposes of succession if she can prove the principles set out by the
Supreme Court in MNK v POM. These principles have been met and Maria Mwezo is entitled to
inherit from Manda Chima’s estate as a dependant under section 29(a) of the LSA as a wife.
PENZI ZURI
Penzi Zuri is identified as Manda’s “mistress,” with whom he has maintained a relationship since
January 2019, but they do not share any children. She had recently divorced her husband,
implying that she was still legally married to someone else while involved with Manda.
Nonetheless, there is no evidence to show that Penzi Zuri did undergo any formal marriage
ceremony with Manda; hence, their relationship is described as an extramarital affair.
4
[2021] eKLR
A great distinction should be noted as there is a difference between being a cohabitee and a
Mistress, which was canvassed in Hortensia Wanjiku Yawe v The Public Trustee Nairobi
[1976] eklr, where the court held, “. To sum it up, there has to be evidence that the long
cohabitation is not a close friendship between a man and woman, that she is not a concubine,
but that the cohabitation has crystallised into a marriage and that it is safe to presume that
there is a marriage…. To my mind, presumption of marriage, being an assumption, does not
require proof of an attempt to go through a form of marriage known to law.” A position that
was also reiterated in Indra Sarma vs [Link], (2013) 15 SCC 755, the Supreme Court of
India held that:. Long-standing relationship as a concubine, though not a relationship in the
nature of a marriage, of course, may at times, deserve protection because that woman might
not be financially independent, but we are afraid that the DV Act does not take care of such
relationships.”
Manda Chima has a single valid marriage with Nelly Kesho, and because they married under
customary law, he is free to enter into another marriage, allowing for cohabitation. The fact that
Penzi Zuri is a separated woman still legally married to another man complicates her claim as
she lacks the capacity to cohabitate with Manda, and the Kenyan law does not consider
cohabitation to create a marital bond if one party is still married to another individual.
Another aspect is that there is no evidence that suggests that she was ever dependent on Manda.
What they shared was a business relationship, where they co-owned a company(Forfeiture Co.
Ltd), which does not encompass any sort of dependency.
Under Kenyan Law, a company is a separate legal entity and shares in the company do form part
of the deceased’s estate. However, Penzi’s entitlement to the company will utterly depend on the
shareholding and the company’s structure, but not on any kind of personal relations she shared
with Manda. If she is registered as a shareholder, then her shares are her property and are not
affected by Manda’s death. In addition, she cannot claim any of Manda’s shares unless she is a
beneficiary or a dependant, but she is not.
In conclusion, Penzi Zuri withholds her company shares but has no claim over Manda’s shares or
any of his assets as part of the estate.
Other dependents relying on Manda’s estate are as follows;
1. Pascalia
Pascalia is the biological mother of Manda Chima. Before Manda’s death, and being the firstborn
in their family, he was maintaining his mother.
In line with section 29 (b) of the LSA, Pascalia is entitled to inherit a share of Manda’s estate as
a dependent.
In Re Estate of the Sandislau Murisnki Mutwiria (Deceased) (Miscellaneous Succession
Cause 49 of 2018), the Court posited on para 17 that, “the second category under Section 29(b)
are supposed to prove dependancy, that is, they are supposed to prove that they were being
maintained by the deceased immediately prior to his demise.”
Therefore, Pascalia has a right to inherit Manda’s estate as a dependent upon proving that she
was being maintained by Manda prior to his death.
2. Cain
Cain is a 17-year-old orphan whom Manda and Milia decided to adopt.
Manda used to pay his school fees till he completed his KCSE, and when he decided to take a
break from pursuing higher education, Manda and Milia decided to send him to the farm to look
after it and supervise the farm workers.
Pursuant to Section 29 (b) of the LSA, Cain is a dependent because he was a child whom Manda
took prior to his death and was maintaining him.
However, due to the fact that he killed Manda and he confessed to the police that he had
poisoned him to inherit some of his property and start a new life with his friends in Coast Pwani,
he will not inherit anything from Manda’s estate. This is in line with Section 96 (1) of the LSA.
In Re Estate of Mary Njeri Mwaniki (Deceased), Succession Cause 283 of 2006, the Applicant
was a grandson to the deceased and it appeared that the deceased was killed by her son, Maxion
Kimani Mwaniki the father of the Applicant in 1987 who was subsequently arrested, tried,
convicted and sentenced to seven years imprisonment for an offence of manslaughter. The
applicant was claiming a portion of the deceased's estate, which his father was supposed to
inherit from the estate.
The court held that “section 96(1) of the Law of Succession outlaws a sane murderer from
sharing in his victim’s estate. It is not in dispute that the applicant’s father killed his mother, the
deceased. It is the deceased's estate that is the subject of these proceedings. The applicant
cannot, in his own right, now purport to claim the estate of the deceased. Nor can he claim the
right to administer the estate. His claim to the estate could only come through his father. Since
his father could not claim a portion of the deceased’s estate, the applicant's right to the estate of
the deceased was also extinguished. “
Therefore, Cain is not entitled to inherit anything from Manda’s estate.
3. Manda’s children
Manda had two children with Nelly, namely Junior and Cherry. He later had two more children
with Milia, namely Joshua and Jerusha. In 2017, he met and fell in love with Maria Mwezo, and
they bore a child called Jonny.
Section 3(2) of the LSA defines child as "child" or "children" shall include a child conceived but
not yet born (as long as that child is subsequently born alive) and, in relation to a female person,
any child born to her out of wedlock, and, in relation to a male person, any child whom he has
expressly recognized or in fact accepted as a child of his own or for whom he has voluntarily
assumed permanent responsibility.”
In FWK (Guardian ad litem for TK and SN Minors) v MWM & another, the Court in relying
with EMM vs IGM & another [2014] eKLR, the court observed; “Additionally, the definition of
a ‘child’ in Section 3(2) of the LSA includes a child whom the deceased has expressly recognized
or in fact accepted as a child of his own of for whom he has voluntarily assumed permanent
responsibility.”
In reliance on the definition above, for Junior and Cherry, the children Manda sired with Nelly,
he was providing for them; therefore, they are his dependents and are entitled to a share of his
estate.
For the children Manda sired with Milia, namely Joshua and Jerusha, they are also his
dependents, for in fact Manda knew of their existence and he went ahead to nominate Joshua
together with Junior to inherit the life insurance policy he had taken.
For Jonny, the child Manda sired with Maria Mwezo, whom he had not gotten married to, he is a
dependant under Section 29 of the LSA, putting reliance on Section 3(2) of the LSA, which also
recognises children born out of wedlock.
In re Estate of Musyoka Muli (Deceased), J. Nyakundi on para.28 posited, “it must be
remembered that the children of a male deceased person would include his children born out of
wedlock to women who were not married to him. The fact that the objector was not married to
the deceased does not prevent his children from inheriting from him in intestacy. Marriage is not
a factor in determining a child’s right to inherit from his father.”
Relying on the above, Jonny is entitled to inherit from Manda’s estate.
4. Joel
He was a brother to Manda. After the funeral arrangements, he drove away with motor vehicle
KDX 150Y to an unknown destination, saying that Manda had given him the spare keys last year
when he had malaria, saying that, should he die, then that car was his.
Following the analysis of the issue of the car keys under question 2, we came to the conclusion
that this does not fall under donatia mortis causa, so Joel is guilty of intermeddling.
Section 45 of the LSA provides;
(1) Except so far as expressly authorised by this Act, or by any other written law, or by a grant of
representation under this Act, no person shall, for any purpose, take possession of or dispose of,
or otherwise intermeddle with, any free property of a deceased person.
(2) Any person who contravenes the provisions of this section shall-
(a) be guilty of an offence and liable to a fine not exceeding ten thousand shillings or to a term of
imprisonment not exceeding one year or to both such fine and imprisonment; and
(b) be answerable to the rightful executor or administrator, to the extent of the assets with which
he has intermeddled after deducting any payments made in the due course of administration.
In Re Estate of the Sandislau Murisnki Mutwiria (Deceased) (Miscellaneous Succession
Cause 49 of 2018), the Court on para 23, in placing reliance on Veronica Njoki Wakagoto,
(Deceased) [2013] eKLR, Musyoka J reasoned that, “The effect of Section 45.. is that the
property of a dead person cannot be lawfully dealt with by anybody unless such a person is
authorised to do so by the law. Such authority emanates from a grant of representation, and any
person who handles estate property without authority is guilty of intermeddling. The law takes a
very serious view of intermeddling and makes it a criminal offence.”
Joel had no authority to take motor vehicle KDX 150Y, forming part of the property of Manda
Chima’s estate, and is therefore guilty of intermeddling.
