Background
The law under the
Marriage Act[1]
(repealed) under Section 37 was that if one had contracted a statutory marriage.
He was barred from marrying another woman under any other system of law specifically
customary law, as legally speaking he was lacked capacity to marry. This brought
about a precarious position where men who had contracted a statutory marriage
could roam around and multiply the earth with no liability whatsoever.
On 14th February, 1977
and 6th February, 1978 this nightmare became a reality for two women who were
caught in this precarious position. In both cases the men they married under customary law had previously contracted a statutory marriage. This was
respectively in the decisions of Re
Ruenji’s Estate (1977) KLR 21 and Re
Ogola’s Estate (1978) KLR 18. Learned Judge Sachdeva in the former case ruled
that ‘women married under customary law by a man who had previously married
under statute are not wives and their children are not children for the purpose
of succession, and they are therefore not entitled to a share in the estate of the deceased’. In the same vein
Learned Judge Simpson ruled in the latter case that ‘A man married under
statute is statute-barred from contracting other marriages during the pendency
of the statutory marriage, and any marriages so contracted are null and void,
and the woman so married are not entitled, together with their children, to
inherit on the intestacy of the deceased man’.
It is important to note
that The Law of succession Act was not operational until 1st July 1981 thus in
the two cases the courts relied solely on Section 37 of the Marriage Act to
determine whether the deceased persons were capable of having other wives in addition to their statutory wives[2].
In 1981 the Law of
Succession Act was passed. Parliament inserted section 3(5) of the Law of
Succession Act which stated that ‘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.
Section 29 of the Law
of Succession Act caters for dependants and Sec. 29(a) states that
"dependant" means the wife or wives, or former wife or wives, and the
children of the deceased whether or not maintained by the deceased immediately prior
to his death.
Section 40 of the Law
of Succession Act caters for devolution of property when one dies intestate it
states that Where an intestate has married more than once under any system of
law permitting polygamy, his personal and household effects and the residue of
the net intestate estate shall, in the first instance, be divided among the
houses according to the number of children in each house, but also adding any
wife surviving him as an additional unit to the number of children.
Parliament intended to
remedy the situation that women who had been subsequently married to men who
had previously married under statute to another woman so that the marriage will
not be valid when he is alive but as soon as he kicks the bucket she becomes a
wife for succession purposes. Section 29 further outlined such women as
dependants whether they were being maintained by the man prior to his death or
not. It also included former wives.
Justice Aluoch ruled in
the Matter of the Estate of Reuben Nzioka
Mutua[3]
(deceased) that section 3(5) of the Law of Succession Act caters for women
under customary by men who had
previously or subsequently contracted statutory marriages, and who have
been abandoned or neglected , and such women are entitled to be provided for of
the estate of the deceased.
Justices Bosire,Omolo
and Tunoi overturned Justice Aluoch’s decision in the case of Irene
Njeri Macharia v Margaret Wairimu Njomo and another Nairobi[4]
where they held that section 3(5)of the Law of succession Act is meant to
protect women who marry men under customary law, who are already married to or
who subsequently marry another women under statute. The woman married under
customary law is regarded as a wife for succession purposes, notwithstanding
that by virtue of section 37 of the Marriage Act the man had no capacity to
marry her. This was a more keen and specific ruling that treaded on a thin line
lest they validate bigamy.
As recently as 2013,
Judge Musyoka ruled in the Matter of the
Estate of Isaac Gidraph Njuguna Mukururo (deceased)[5]
that section 3(5) of the Law of Succession Act circumvents section 37 of the
repealed Marriage Act[6]
The judicial rulings
have expanded the definition under Section 3(5) to include common law wives.
This is marriage by cohabitation. Hortensia
Wanjiku Yawe v The Public Trustee[7] stated that the fact of a prolonged co-habitation between a man and a woman
can give rise to a presumption of a marriage in favor of the woman, which
presumption can only be rebutted or displaced by cogent evidence to the
contrary.
Facts that are taken
into account are not exhaustive but include naming the children after the man,
insurance policies taken by the man over the wife and children, holding out and
financial arrangement etc. According to the Marriage Act 2014 to "cohabit"
means to live in an arrangement in which an unmarried couple lives together in
a long-term relationship that resembles a marriage.
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