In re Estate of Jacob Juma (Deceased) (Succession Cause 1103 of 2016) [2023] KEHC 24988 (KLR) (Family) (3 November 2023) (Judgment)

Deceased Name

Key Facts

Issues

• The court assessed the inheritance rights of Lydia Tabuke's two children, born in 2006 and 2008, after DNA testing confirmed a 99.9% probability of paternity. The court declared the children as beneficiaries under Section 29 of the Law of Succession Act.
• The court determined whether Lydia Tabuke's customary marriage to Jacob Juma under Luhyia practices was valid, considering dowry payments, family consent, and expert testimony. The court found the marriage valid, recognizing her as a wife and entitled to inheritance rights.

Date of Death

Holdings

• The court declared Lydia Tabuke as a wife of the deceased Jacob Juma and recognized her two children (RIAJ and JJ) as biological beneficiaries of the estate. The protest succeeded, and the grant was amended to include Lydia as an administrator representing the second house. The court directed the administrators to file an amended summons for confirmation of grant within 60 days to include Lydia and her children in the estate distribution.
• The court rejected the argument that the deceased's marriage to Lydia was invalid due to uncompleted customary rites. It held that partial dowry payment (Kshs 100,000, three cows, and other items) and family consent sufficed for a valid Luhyia customary marriage under Section 29 of the Law of Succession Act. The deceased's legal capacity to marry polygamously was confirmed.

Remedies

• The existing Grant of letters of administration issued on 30th May 2017 is directed to be amended to include Lydia Tabuke as an Administrator representing the second house and safeguarding her minor children's interests.
• As this is a family matter, the court directs that each party (Lydia Tabuke and the Administrators) shall meet their own costs associated with the proceedings.
• The Administrators (Miriam Wairimu Wambugu and Anne Wanjira Githenya) are instructed to file a fresh summons for confirmation of Grant within 60 days, incorporating Lydia Tabuke and her children into the estate's distribution plan.
• The court confirms RIAJ (born 6th July 2006) and JJ (born 9th April 2008) as biological children of Jacob Juma, entitling them to inherit from his estate under Section 29 of the Law of Succession Act.
• The court declares Lydia Tabuke to be a widow of the deceased Jacob Juma, thereby establishing her as a beneficiary to his estate. This includes her entitlement to a share in the distribution of assets.

Will Type

Probate Status

Legal Principles

• The court used a purposive approach to interpret Luhyia customary marriage practices, acknowledging that modern circumstances may lead to adaptations of traditional rites. This approach allowed the court to recognize the marriage despite incomplete formalities.
• The standard of proof was determined to be on the balance of probabilities for the customary marriage claim. The court emphasized that customary marriages must be proven to this evidential standard, even if expert testimony is involved.
• The court applied the burden of proof as per Section 107 of the Evidence Act, requiring the Protestor to prove the existence of a customary marriage to the Deceased. The party asserting a fact must prove its existence, and this principle was central to evaluating the Protestor's claim.

Succession Regime

Precedent Name

• Shah and another v Shah and others (2003), EA
• AWN v JKR & another (2005) IEA
• Stephen Kinini Wang'ondu v The Ark Limited (2016) eKLR
• Titli v Jones (AIR) 1934

Executor Name

• Lydia Tabuke
• Miriam Wairimu Wambugu
• Anne Wanjira Githenya

Cited Statute

• Marriage Act, 2014, Laws of Kenya
• Evidence Act, Cap 80, Laws of Kenya
• Law of Succession Act, Cap 160, Laws of Kenya

Executor Appointment

Judge Name

Beneficiary Classes

• Child / Issue
• Spouse / Civil Partner

Passage Text

• the original copy of the DNA results dated 7th July, 2021 prepared by H K – Sana Government Analyst confirms that there is a 99.9% probability that the Deceased is the biological father of both children.
• I therefore direct that Grant be amended to include the Protestor Lydia Tabuke as an Administrator representing the second House and to take care of the interests of her minor children.
• With respect I do not agree cuLydia Tabukeure and customs are dynamic and will be adapted to suit the prevailing circumstances.