In Re Estate Of Fredrick Clavence Kittany  EKLR
|Succession Cause11 of 2001||22 Nov 2002|
Roselyn Naliaka Nambuye
High Court at Eldoret
In Re Estate of Fredrick Clavence Kittany
In Re Estate of Fredrick Clavence Kittany  eKLR
In Re Estate of Fredrick Clavence Kittany
High Court, at Eldoret
November 22, 2002
Succession Cause No 11 of 2001
Succession – intestate succession – where the deceased had two wives – where deceased contracted a previous statutory marriage then subsequently contracted a customary marriage – whether both are wives for the purposes of succession – wife entitled to administer succession husband’s estate – appointment of administrators – factors to be considered by the Court.
Succession – intestate succession – persons entitled to inherit – dependants – section 3(5) and 26 of the Law Succession Act (cap 160).
Succession – distribution – intestate succession – distribution of estate of a deceased person – guiding principles in deciding distribution – section 28 of the Law of Succession Act (cap 160).
Succession – inheritance – by wife – where validity of marriage is in question – whether a marriage to the deceased can be declared null and void during succession proceedings – meaning of wife within the ambit of section 3(5) of the Laws of Succession Act (cap 160)
One Sally Kittany, who claimed to be a widow of the deceased FC Kittany, filed a claim in the High Court seeking the letters of representation to the deceased’s estate on her own account and on account of her two children and the mother of the deceased. Rhoda Kittany filed an objection to that claim on the grounds that she (Rhoda) was the sole widow and beneficiary of the estate of the deceased. Rhoda had also filed a succession claim to the estate on her own account and on account of seven beneficiaries who she claimed were children of her marriage to the deceased. Her claim and Sally’s were consolidated.
Rhoda’s evidence was that she and the deceased first married under customary law and they later solemnized their marriage in church in 1979. That they cohabited and resided together and that they bore children and owned property. She admitted that they had marital difficulties but maintained that their marriage was still in existence even at the time of the deceased’s death.
Sally, on the other hand, claimed that she married the deceased as a second wife because his marriage to Rhoda was troubled. She stated that her marriage to the deceased was done under customary law.
It fell on the court to decide who were the proper dependants of the deceased and who was entitled to be appointed as an administrator of the deceased’s estate.
1. Where it is proved that the deceased had previously contracted a valid customary law marriage and then subsequently contracted a statutory marriage both wives will inherit his estate.
2. Where the deceased contracted a previous statutory marriage then subsequently contracted a customary marriage, for the purposes of the Succession Act only, both women are wives.
3. The mother of the deceased in this case qualified as a dependant within the meaning of the Law of Succession Act, and she was therefore entitled to inherit the deceased’s estate and administer the same jointly with the wife or wives.
4. A marriage cannot be declared null and void through a counsel’s submissions, the court can only be moved substantively to declare the same null and void. Having failed to so move the court that marriage stood valid and recognized by law.
5. Rhoda was the legal wife of the deceased and she is entitled to administer the estate of the deceased either alone or jointly with others as ruled by the court.
6. In the absence of documentary or other proof, children born during the subsistence of a marriage are children of the marriage and are entitled to inherit the estate of the deceased.
7. The deceased did not terminate his marriage to Rhoda, and therefore he had no capacity to marry under customary law or by law and the ceremony with Sally did not constitute a marriage and was null and void.
8. The marriage to Sally did not constitute a marriage as not all the prerequisites were gone into.
9. Before a man or woman is to be presumed to have been married by virtue of a long cohabitation and repute there has to be a declaratory order from a court of competent jurisdiction. In this case there is no such declaratory order.
10. Sally was not the wife of the deceased and did not come within the ambit of the provisions of the amendment in section 3(5) of the Law of Succession Act and so she will not inherit the estate of the deceased; she cannot also administer the same save for the purposes of safeguarding the interests of her children if they are found eligible to inherit.
11. The two children of Sally fall within the ambit of the amendment in section 3(5) of the Law of Succession and were eligible to inherit the estate of the deceased independent of their mother.
12. In deciding the distribution of the estate of the deceased the court will be guided by the principles set out in the Law of Succession Act (cap 160) section 28 namely
a) The nature and amount of the deceased’s property;
b) Any past, present or future capital or income from any source of the dependant;
c) The existing and future means and needs of the dependant; d) Whether the deceased had made any advancement or other gift to the dependant during his lifetime;
e) The conduct of the dependant;
f) The situation and circumstances of the deceased’s other dependants and the beneficiaries under any will; and
g) The general circumstances of the case including so far as can be ascertained the testator’s reasons for not making provision for the dependant.
13. The three claimants to the estate of the deceased all appointed as joint administrators to each take care of their interest and that of their children.
1. Re Ruenji’s Estate  KLR 21 2. Re Ogola’s Estate  KLR 18
3. Ayoob v Ayoob  EA 72
4. Re Kibiego  EA 179
5. Kipruto (Deceased), In the matter of the estate of Eldoret Probate and Administration No 161 of 1996
6. Mutua (Deceased), In the Matter of the estate of, Probate & Administration Cause No 843 of 1986
1. Marriage Act (cap 150) sections 11(1)(d), 34, 37, 50
2. Law of Succession Act (cap 160) sections 3(5), 28, 29, 40, 41, 66
3. African Christian Marriage and Divorce Act (cap 151)
4. Births and Deaths Registration Act (cap 149)