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|Case Number:||Succession Cause 881 of 1993|
|Parties:||Margaret Juma Ochieng v Manase Otieno & Philip Oduor|
|Date Delivered:||04 Aug 1994|
|Court:||High Court at Nairobi (Milimani Law Courts)|
|Judge(s):||Hedwig Imbosa Ong'udi|
|Citation:||Margaret Juma Ochieng v Manase Otieno & another|
|Advocates:||Mrs Adul for the Respondents|
|Advocates:||Mrs Adul for the Respondents|
In Re Estate of Ochieng (Deceased)
High Court, at Nairobi August 4, 1994
Succession Cause No 881 of 1993
Succession – letters of administration – where deceased was married under the Marriage Act – where one petitions for grant of letters of administration by not disclosing material facts – whether letters of administration granted should be nullified.
A marriage certificate No 29947, showed that Daniel Edwin Ochieng, then 30 years old, married Margaret Juma Odhiambo, then 29 years. On 30th January 1993 Daniel died. Upon his death, the respondents petitioned for grant of letters of administration without including the applicant as a beneficiary to the estate. The persons who did not object to the grant were:
(a) Dora Amelea Awino
(b) John Samuel Okoth
(c) Janet Auma
(d) Joseph David Ouma
The applicant further alleged that there were two issues of the marriage, and only one was mentioned as the beneficiary. She therefore sought a nullification of the grant on the ground that it was obtained fraudulently by making a false statement or by concealment of something material to the case. It was contended on behalf of the respondents that the applicant, by her own conduct, did not qualify as a beneficiary of the estate, since she had removed herself from the matrimonial house in January 1991 and was away till the death of her husband.
1. Any person married under the Marriage Act has no capacity to contract a valid marriage under any native law or custom.
2. The deceased had no capacity to contract any other marriage during the subsistance of his marriage to the applicant.
3. The respondents acted fraudulently to the Deputy Registrar of the High Court by not disclosing a material fact of great importance ie that the deceased was survived by a legal wife.
No cases referred to.
1. Law of Succession Act (cap 160) section 76
2. Marriage Act (cap 150) section 37
Mrs Adul for the Respondents
|History Advocates:||One party or some parties represented|
|Case Outcome:||Application Allowed.|
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
SUCCESSION CAUSE 881 OF 1993
IN THE MATTER OF THE ESTATE OF DANIEL EDWIN OCHIENG (DECEASED)
MARGARET JUMA OCHIENG..........................................................................APPLICANT
1. MANASE OTIENO
2. PHILIP ODUOR......................................................................................RESPONDENTS
The marriage certificate No 29947 shows that Daniel Edwin Ochieng, then 30 years old, married Margaret Juma Odhiambo, then 29 years. On 30th January, 1993 Daniel died. The two respondents petitioned for grant of letters of administration without including the applicant as a beneficiary to the estate. The persons shown as having an interest in the estate and who did not object to the grant being made to the respondents were:
1. Dora Amelea Awino
2. John Samuel Okoth
3. Janet Auma
4. Joseph David Ouma
The applicant further alleges there were two issues of the marriage namely Jacqueline Awuor and Dora Atieno. Only Dora was mentioned as a beneficiary. She now seeks a nullification of the grant on the grounds that it was obtained fraudulently by making a false statement or by the concealment of something material to the case – s 76 Succession Act.
Mrs Adul for the respondents has argued that the applicant did not by her own conduct qualify as a beneficiary to the estate. She removed herself and her children from the matrimonial home in January, 1991 and was away till the death of her husband. She had filed an application in Court for separation but the same had not been disposed by the date of death. She further left home barely a week after the burial. She further submitted that Jacqueline was a child born out of wedlock, and that the deceased had not adopted her as his child. The deceased subsequently married Janet Auma.
The onus of proving fraud or concealment of material fact lies in the applicant. There is no dispute she was married to the deceased. The marriage was registered under the Marriage Act. Any person married under that Act has no capacity to contract a valid marriage under any native law or custom – s 37 Marriage Act. The deceased did file for divorce in his life time but the same had not been determined when he expired. The
position at law is that the applicant remained his legal wife. By staying away from the matrimonial home as is submitted she did not invalidate her marriage to the deceased. Consequently the deceased had no capacity to contract any other marriage during the subsistence of his marriage to the applicant.
The deceased went through a ceremony of marriage with the applicant when Jacqueline had been born. He had accepted her as his child. I do not agree with Mrs Adul that Jacqueline be excluded from the deceased’s estate.
As the lawful widow of the deceased, the applicant had the sole right to apply for letters of probate. The respondents had no legal duty to act as they did without consulting her and without including her as a beneficiary. She did not have to wait to see the gazette notice in order to raise objection. She was the main player in the whole game without whose consent the exercise became a nullity.
Whatever prejudices the respondents had against the applicant they acted fraudulently to the Deputy Registrar of this Court by not disclosing a material fact of great importance, ie that the deceased was survived by a legal wife. I find the fact of fraud and non-disclosure proved by the applicant. I order that the letters of administration (intestate) issued to the respondents be nullified by the Deputy Registrar of this Court.
Costs to the applicant.
Dated and Delivered at Nairobi this 4th day of August 1994.