Whether the applicant was a wife to the deceased
19.The deceased herein died on December 14, 2012 wherein the respondent who is the deceased’s brother petitioned for a grant of letters of administration and the same were issued on November 13, 2013. Thereafter, the applicant who claims to be the deceased’s wife learnt of the same and has approached this court for revocation of the grant of letters of administration which she claims was fraudulently obtained by concealing material facts from the court, as the applicant being the deceased’s wife was left out and all the assets of the deceased were not disclosed.
20.The applicant avers that she was married to the deceased in the year 2009 where they cohabited with the deceased and her daughter until his demise. That the deceased’s family visited her home in Kanyui for the introduction ceremony together with other family members and neighbours. That the deceased passed away before paying the dowry. She contended that she assisted the deceased to construct their matrimonial home by buying building materials and paying the fundis.
21.It was her testimony that the respondent after the deceased death started causing her untold suffering by locking her out of the matrimonial home. That he also took away the deceased’s motor vehicle and was also instructing the bank to release funds from the deceased’s bank account.
22.She presented various witnesses to support her claim that she was a wife to the deceased and that they lived together having gone through the Kamba customary rites.
23.The respondent on the other hand, denied the allegations that the applicant was a wife to the deceased. He contended that the applicant was a friend to the deceased and had never lived with the deceased but used to visit the deceased occasionally during the weekends. He stated that no dowry was paid by the deceased towards marrying the applicant. He further stated that the deceased did not have a child with the applicant as he is the one who was taking care of the deceased’s children with the deceased first wife.
24.The Law of Succession Act provides for revocation or annulment of grants under section 76, which states as follows:
25.The applicant is seeking revocation of the grant of administration issued to the respondent on November 13, 2012 on the grounds that the same was fraudulently obtained by concealing material facts from the court, as the applicant being deceased’s wife was left out and the respondent failed to disclose all the assets of the deceased.
26.The first question that arises is whether the applicant should be considered as the deceased’s wife.
28.In the case herein, the applicant has not proved her marriage by either a marriage certificate or long cohabitation. She stated that the deceased passed on before the payment of dowry though an introduction ceremony had been conducted. She indicated that she cohabited with the deceased where she assisted with the construction of the matrimonial home but no evidence was advanced towards the same. In any case, she testified that she used to visit the deceased over the weekends as she was working as a teacher.
29.In the upshot, there lacks a validly constituted customary marriage as well as long cohabitation so as to establish presumption of marriage. Further no declaration has been made for a marriage to be presumed to exist between the deceased and the applicant.
30.In the circumstances and from the evidence adduced this court finds that the applicant has failed to prove her case on a balance of probabilities that she was a wife of the deceased or a beneficiary of the deceased estate together with her child as no evidence was produced to demonstrate that the deceased was taking care of the child before his death.
Whether the grant should be revoked
31.This then means that the respondent was not obligated to notify the applicant when he proceeded to file the petition for letters of administration intestate as this court is satisfied that the applicant was not a beneficiary to the deceased’s estate the court nor was she a wife to the deceased.
32.This court is thus satisfied that the application as filed does not meet the threshold of revocation of the grant as stipulated in law as the applicant has not demonstrated the manner in which the grant was obtained as being unlawful.