The High Court ruled that a woman who marries a man while his earlier monogamous marriage is still legally subsisting is nevertheless entitled to recognition as a wife for purposes of inheritance under Kenya’s Law of Succession Act.
In a judgment delivered on July 2, Justice Hillary Chemitei allowed an objection by Jane Jerry Kioko, declaring her a wife of the late Ndolo Kioko Musyimi and appointing her a joint administrator of his estate alongside the deceased’s children.
The dispute arose following the death of Musyimi on December 30, 2021.
His first marriage to Loise Wambui Muigai had been celebrated under the African Christian Marriage Act on November 28, 1987, and was only dissolved through a divorce decree issued in March 2020.
However, before the divorce was finalized, Musyimi married Kioko under Hehe customary law in Tanzania on March 14, 2015, before the couple later solemnized their union through a civil marriage on June 27, 2015. The marriage produced two children.
Justice Chemitei acknowledged that the second marriage was contracted while the first monogamous marriage remained in force, describing it as technically illegal and capable of amounting to bigamy.
Despite this, the judge held that Section 3(5) of the Law of Succession Act protects women married under systems of law that permit polygamy, even where the deceased had contracted a previous or subsequent monogamous marriage.
“Notwithstanding the provisions of any other written law, a woman married under a system of law which permits polygamy is, where her husband has contracted a previous or subsequent monogamous marriage to another woman, nevertheless a wife for the purposes of this Act, and in particular sections 29 and 40 thereof, and her children are accordingly children within the meaning of this Act,” ruled the court.
The court found that Kioko had proved she lived with the deceased as his wife for many years.
She testified that when they met in 1998, the deceased informed her that his first marriage had already ended.
The two began living together in 2002, and dowry negotiations were later conducted with her family before their customary and civil marriages in 2015.
Her case was supported by witnesses, including Michael Muya Musyoka, a friend of the deceased, who testified that he accompanied the deceased to Tanzania during dowry negotiations and that the deceased consistently introduced Kioko as his wife, including during his final illness.
Boaz Akim Kitaja, Kioko’s uncle, also confirmed that dowry was paid in accordance with Hehe customary law, making the marriage valid under those customs.
The first wife, Loise Wambui Muigai, opposed the application, arguing that she remained legally married to the deceased when he married Kioko and that the second marriage was invalid.
She also contended that the estate comprised property acquired during her marriage and objected to Kioko’s appointment as an administrator.
In his judgment, Justice Chemitei found that the evidence demonstrated the deceased and Kioko had conducted themselves as husband and wife, with the deceased openly acknowledging her as such and fathering two children with her.
He further held that if Parliament had intended to exclude subsequent monogamous marriages from the protection of the Act, it would have expressly stated so.
The court declared Jane Jerry Kioko a lawful wife of the deceased for purposes of succession and appointed her as a joint administrator of the estate together with the deceased’s children.
Justice Chemitei directed the administrators to apply for confirmation of the grant within 45 days.
The judge, however, ruled that the question of how the estate should ultimately be distributed remains unresolved, saying that the first wife maintains the disputed properties are matrimonial assets and that an earlier suit concerning the property is still pending before the court.
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