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1. There had evolved a flexible open-minded approach that sought to recognize the vulnerability faced by economically disadvantaged partners in long-term relationships (often unmarried cohabiting women) who would ordinarily have no protection of their interests upon termination of such relationships. However, the standard test for the remedy had to be met.
2. The 1^st appellant did not set out to establish a commercial enterprise or partnership with the deceased. She had set out to establish a normal Swati homestead and family, which had then to be turned around and recast as a partnership of sort for lack of a better term. It was only when her true marital status was revealed that she woke up and found herself a totally different person, not a wife but a cohabitee or ‘live-in lover’ according to the 1^st respondent. Consequently, the 1^st appellant was justified to be angry and confused.
3. So long as the 1^st appellant lived on the farm and participated in the various activities on the farm, she did contribute to a commercial partnership which involved the building of the home, the purchase of the farm and the cotton farming. That would be so even where the deceased was shown to have obtained a loan for the purchase of the farm and the cotton farm. If the appellant contributed in the food that fed the farm workers, that would still be a financial contribution even if it was only in kind.
4. Whilst it could not be properly denied that the purported customary marriage of the 1^st applicant was bigamous, null and void by reason of the fact that the deceased was already married by civil rites, it was not unimportant to mention that in light of the respondent’s marriage certificate, the 1^st respondent’s proprietary rights flowing from her marriage with the deceased were governed by siSwati customary law.
5. On the face of the marriage certificate, the deceased and the 1^st respondent did not adopt the common law to regulate the property consequences of their marriage. The relevant column of the certificate remained empty. Dealing with that matter as if the marriage was in community was only for convenience in the hope that justice would be served. The customary law arena was simply an unchartered jungle.
6. The 1^st appellant was not just an ordinary, casual, live-in lover as by the 1^st respondent. On the basis that her marriage with the deceased was bigamous, the 1^st appellant was a putative wife of the deceased. The nullity of her marriage did not invalidate that. The 1^st appellant’s five children should be declared legitimate, if that was not the current position. The deceased was said to have lied about his civil marriage with the 1^st respondent who said that she confronted the deceased about the 1^st appellant’s status in the family and the deceased broke down and cried. The 1^st respondent did not then confront the 1^st appellant with the truth regarding her purported marital situation. The 1^st respondent was apparently contented that her own marital status would not be affected by the bigamy.
7. The siSwati customary marriage, not originating in canon law and not steeped in the Roman Dutch common law, could be considered putative because it was a legally recognized form of marriage. From the 1^st appellant’s point of view, in good faith, she got married to the deceased. From the deceased’s point of view, it could be argued that he believed in his marriage with the 1^st respondent to be governed by customary law.
8. When asked by the appellant about their marriage, the deceased was said to have denied the civil marriage. Considering that the common law had been excluded in their marriage, it was easier for an uneducated person to be confused about the legal status of his/her marriage. The failure to adopt the common law could have confused spouses as to where to draw the line between the civil and the customary in the marriage. That was a matter for further legislative consideration.
9. Regarding the test which the 1^st appellant had to meet in support of her claim, it should be borne in mind that the partnership being tacit, the 1^st appellant and the deceased never sat down and expressly agree on the terms and conditions of their partnership. The partnership was implied, based on conduct of the parties in light of their relationship as husband and wife, putative as it turned out to be.
10. In a case of tacit agreement, it was not correct to even think of a consensus as such, as that would be the case in normal contracts. The parties or at least one of them believed that their relationship was lawful, and with that in mind behaved as husband and wife customarily conducted themselves. The relationship of the parties as between themselves had the external features of a lawful marriage according to custom. There was no need for the 1^st appellant to secure a definite response on how to handle or deal with any particular family asset or activity, be it commercial or any other.
11. If a particular asset were excluded from the general family pool, it would be for the party concerned to ensure that the exclusion was understood by the other party. Otherwise, everything belonged to the common pool. If the court should accept that consensus ad idem was itself a product of inference on a balance of probabilities, the test of a tacit agreement should not appear so high as to be cause for concern and a need for reformulation.
12. So long as the principle of consensus ad idem was predicated on tacit, unexpressed intention, unequivocal conduct capable of no other interpretation became neutralized when assessed on a preponderance of probability. The preferred approach in search of the consensus was to view the situation as a whole and not the individual acts or conduct. Thus the inference was best done at the end of the period which was alleged to establish the partnership agreement. The piece-meal approach in which single acts of conduct were selected and evaluated for tacit partnership was likely to lead to unsatisfactory conclusion in which the requisite partnership was denied.
13. The appellant had undergone a recognised marriage ceremony and was generally recognised and accepted as a married woman and wife of the deceased. The marriage formalities (the teka and lobola) however legally void, they created a de facto contractual relationship which a Swati court would recognize.
14. The real culprit to whom section 7 of the Marriage Act of 1964 (the Act) was mainly addressed was beyond the reach of law. Section 7 (1) spoke to a person already legally married and section 7 (2) spoke to a person married in terms of the Act. In both instances, that person was the deceased. That was the person who was guilty of the offense of bigamy. The 1^st respondent would possibly be guilty as an accessory for aiding and abetting the commission of the offence.
15. The civil rites marriage presupposed a life of togetherness of the spouses, not a paper marriage which was to all intents and purposes an abuse of the institution of marriage. That was particularly so in the case where the innocent/victim spouse was aware of acts by the other spouse which normally entitled him/her to sue for divorce or claim of conjugal rights or other remedy, but did nothing over a lengthy period only to await the death of that other spouse and return to claim a half-share of the deceased estate. That was immoral and should not be encouraged. A paper marriage should not be supported if used as the basis for benefits never contributed to their acquisition.
16. The fact that the appellant’s income could not make a significant contribution to the building of her homestead, the raising and education of their children and those of the deceased from outside relationships, the purchase of the farm and the cotton farming business including the acquisition of the farming plants and equipment, did not mean that the appellant had a life of her own apart from the deceased and or that the two did not share in the acquisition and administration of the homestead and the business on the farm. The financial size of that contribution was not materially important to the issue of sharing with the deceased.
17. The Supreme Court was very skeptical of the logic justifying a spouse who returned after many years of de facto separation to lay claim to a deceased spouse estate to which she/he had not contributed. Spousal entitlement, if any, should end on the date of physical separation unless some post-separation assets were shown to have been generated by assets already held by the spouses before separation. Tacit universal partnership needed not be asset-targeted; it should be motivated and driven by the facts of the particular case.
18. A spouse needed not have contributed a cent to the acquisition of a particular asset to lay claim to it under tacit universal partnership. It should be sufficient that the parties lived together as husband and wife, legally or by repute and there was nothing specifically prohibiting a sharing generally or in respect of identified assets.
19. With the spouses married in community of property, their joint estate was divided when one of them died, with the survivor entitled to one half of the net residue of the joint estate after debts were paid. It followed that in casu on the death of the deceased, there had to be a liquidation and distribution of the joint estate.
20. The property rights of the spouses could not be governed by the common law and customary law all at once. In community of property, the spouses were equal partners in a tacit partnership. That was how the 1^st respondent expected to be treated, as a fifty percent shareholder. Deliberately or not, the 1^st appellant had also proceeded on that assumption.
21. Even though the marriage of the deceased and the 1^st appellant was by common law null and void as confirmed by the Act, there was justification for the presumption of a universal partnership created by the manifest family or house that had been allowed to grow and become attached to the main house. That family or house was the result of a deliberate customary marriage as far as the 1^st appellant was concerned.
22. A family was not a commercial enterprise. Even where the family was circumstantially viewed as a partnership, profit making was only a temporary and passing phase. A family could make profit without itself being a business. Partnership itself needed not be profit oriented. That marriage in community of property created partnership did not mean that profit was the purpose. Where profit was the primary aim and reason to be for the marriage, then that would not be a marriage as was ordinarily known. Certain features of partnership were not present in marital partnership. Profit-making was one such outstanding feature.
23. Whilst it could be true as a general principle that universal partnership could not coexist happily with marriage in a community because of the immorality associated with that arrangement, realism informed otherwise. Where the husband and wife married in community of property separated without divorcing for twenty years, and cohabited with other persons until one of them died; the surviving spouse could legally claim all the property of the former husband/wife on the basis that she/he never divorced the deceased. To grant such a relief would be complicit to marital infidelity. The circumstance of non-co-existence had to be carefully reconsidered in a case like the present where the apparent cohabitation was in reality married life outside the common or statute law.
24. There was nothing per se immoral in the deceased/appellant’s marriage. At the level of generality, if cohabitation was not to be equated with marriage in community, then it was conceivable that there could be room for universal partnership outside the marriage in community. There was life, however shoddy or immoral, outside of marriage by civil rites. To say that the family was normally not a profit making entity was not to say that where profit was pursued and realised within the four corners of the family that profit should not be recognised and exploited for what it was worth, even where generated by the effort of one of the spouses.
25. The 1^st appellant was about sixty years old and alleged to be sickly. To send her away empty-handed on the twilight of her life would be wrong and unjust. She deposed that other than what assets there were in the alleged partnership with the deceased, she had no other assets or means of a reasonable lifestyle if denied partnership with the deceased. Even the lobola cows for one of her daughters were at the family meeting adjudged to be part of the deceased’s assets to be shared by the family members. The appellant was plausibly entitled to benefit as a tacit universal partner with the deceased.

Appeal granted; the matter referred to the Master of the High Court to oversee the due execution by the executor of the orders.

Orders

1. The order of the High Court to dismiss the petition was set aside;
2. Farm 288 Hereford was to be divided as follows-
   1.   A reasonable portion incorporating the appellant’s home was to be excised and registered in the appellant’s name’
   2.  The remaining portion was to be sold so as to allow the 1^st respondent a half share; and,
   3.   The other half share to be divided so as to allow the appellant a half share; and,
   4.   The last half share was to be shared by the deceased’s heirs and heiresses.
3. Removal of the executioner (the 2^nd respondent) was denied.
4. The costs in the Supreme Court and the High Court to be borne by the estate.

Relevance to Kenyan jurisprudence

The Constitution of Kenya 2010 in article 45 defines a family as the natural and fundamental unit of society and the necessary basis of social order, and shall enjoy the recognition and protection of the State. Further, it stresses that:

2. Every adult has the right to marry a person of the opposite sex, based on the free consent of the parties.
3. Parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage.
4. Parliament shall enact legislation that recognises-

a. marriages concluded under any tradition, or system of religious, personal or family law; and

b. any system of personal and family law under any tradition, or adhered to by persons professing a particular religion, to the extent that any such marriages or systems of law are consistent with this Constitution.

The term universal partnership means:

…an express or tacit agreement between two people, including same sex couples, who choose to live together in a permanent relationship without entering into marriage, or married persons who enter into an express or tacit agreement relating to a particular asset, such as a business.

[1] The Marriage Act defines marriage in section 3 (1) as the voluntary union of a man and a woman whether in a monogamous or polygamous union and registered in accordance with this Act. In addition, it notes in subsection (2) that parties to a marriage have equal rights and obligations at the time of the marriage, during the marriage and at the dissolution of the marriage. Section 9 speaks about subsisting marriages when it states that a married person shall not, while in a monogamous marriage, contract another marriage; or while in a polygamous or potentially polygamous marriage, contract another marriage in any monogamous form.

In Walford Ngugi Njambi & another v Eunice Wanjiru Wambui & 2 others [2022] eKLR, both parties alleged that they were the rightful heirs of the Estate of James Muigai Ngugi (deceased)and the High Court held that it was satisfied that both Jane and Wanjiru proved that they were married to the deceased under the doctrine of presumption of marriage hence as the surviving spouses (Jane and Wanjiru), they were entitled to be appointed administrators in preference to Walford who was the deceased’s nephew.

Moreover, the court In re Estate of DA (Deceased) [2019] eKLR held that: The appeal succeeds on only one ground. I quash the trial magistrate’s finding that the respondent was a wife of the deceased. She did not prove she is a wife. The deceased appears to have acknowledged the 2 children as his children, there are birth certificates obtained during his lifetime and he maintained them. The 2 children PA and RN will be included by the appellants as the deceased’s dependants, unless otherwise proved. The respondent EKN is not a dependant of the deceased. This case is thus relevant to the Kenyan jurisprudence since it expands the horizons of customary law’s application in the determination of the rightful heirs of a deceased person married to two wives, one under civil rites and the other under customary law, as it holds that the eSwatini marriage formalities (the teka and lobola) however legally void created a de facto contractual relationship between the spouses.