Musela v Wambui & another & 3 others (Civil Appeal E504 of 2020) [2024] KECA 679 (KLR) (14 June 2024) (Judgment)

Facts

The deceased, Lihasi Bidali, died in 2012. His estate has not been inherited for over 12 years. Three women claim to be widows of the deceased: Jedidah, Grace, and Magdalene. The trial court found Jedidah to be the deceased's only wife under Christian rites, while Grace and Magdalene were found to be his wives under Kikuyu Customary Law.

Issues

1. Whether the trial court was right in presuming that Grace and Magdalene were wives of the deceased based on the concept of presumption of marriage and therefore wives under section 3(5) of the Act.
2. Whether the court erred by making a finding that children of the Grace and Magdalene were children of the deceased.
3. Whether the court erred in finding that the children of Grace and Magdalene though not biological children of the deceased were nonetheless beneficiaries of the estate.
4. Whether the learned judge interfered with the deceased's Will.

Reasoning

The court found that Grace and Magdalene did not establish they were married under a system of law that recognizes polygamy, and thus could not seek refuge under Section 3(5) of the Law of Succession Act.

Outcome

Affirmed the trial court's judgment.

Authorities cited