Okeno & 2 others v JOSY (Civil Appeal E027 of 2020) [2024] KECA 1915 (KLR) (11 October 2024) (Judgment)

Neutral citation: [2024] KECA 1915 (KLR)

Republic of Kenya

In the Court of Appeal at Mombasa

Civil Appeal E027 of 2020

AK Murgor, KI Laibuta & GV Odunga, JJA

October 11, 2024

Between

Erick Okeno

1^st Appellant

Judith Zembi Okeno

2^nd Appellant

Tony Okeno

3^rd Appellant

and

JOSY

Respondent

(Appeal against the whole Judgement and Decree arising from the Judgement/Ruling of the High Court at Mombasa ( M. Thande, J.) delivered on the 9th day of October, 2020 in HCCC No. 2 of 2014)

Judgment

1.RAAO (the deceased), a solicitor in the United Kingdom, passed away on 28^th March 2014 at her residence in Kikambala, Kilifi County, and was buried on 11^th April 2014 on Land Title No. CR xxxxx, Subdivision xxxx section III MN Kikambala (the suit property). On receipt of the news, the respondent, JOSY, who claimed to have been in an informal marital relationship with the deceased, travelled to Kenya for the purposes of paying his last respects to the deceased. The deceased’s siblings, the 1^st and 2^nd appellants, also travelled from New South Wales, Australia and London, United Kingdom respectively for the same purpose. At the time of her death, the 3^rd appellant was staying with the deceased. Disagreement between the respondent and the appellants arose upon the respondent’s appearance at the premises of the deceased.

2.The suit from which this appeal arises, which was commenced by a plaint dated 9^th April 2014 and amended on 3^rd July 2014, was as a result of the said disagreements. The respondent’s claim was that he and the deceased were married under Luo Customary Law in 2000 and lived together as husband and wife both in Kenya and in the United Kingdom; that, apart from the suit property, they together purchased several properties including parcels of land in Kilifi and Kisumu counties, 3 Toyota RAV 4 vehicles, 2 tractors and other moveable properties; that the deceased died on 28^th March 2014 at their home in the suit property while the respondent was away in London; that the respondent travelled back immediately, but was denied access to the matrimonial home by the appellants, who illegally took over and occupied the house; that the respondent was forced to seek alternative accommodation at the rate of 2,000 per day and had to extend his stay thus paying the sum of Kshs 40,180; that the appellants also denied him access to all the ownership documents relating to the properties and the vehicles in the home; and that the appellants excluded the respondent from the funeral and burial arrangements of the deceased, which took place on 11^th April 2014 thereby aggravating his grief for the loss of his beloved wife.

3.Although the copy of the amended plaint in the record before us is incomplete as the page setting out the reliefs sought is missing, we can glean from the judgement that the respondent sought: a declaration that he is the owner of the suit properties and entitled to household and personal belongings therein; a mandatory injunction restraining the appellants from interfering with or remaining on or continuing to occupy the house on or any other property belonging to the deceased; an order of injunction compelling the appellants to hand over to the respondent all motor vehicles, movable properties and documents belonging to him and the deceased that they may have removed from the suit property; damages for trespass; refund of Kshs 40,180 and compensation in the sum of Kshs 2,000 per day together with utility bills from 3^rd April 2014 until the appellants give vacant possession of the house on the suit property; costs and interest at court rates; and any other or further relief that the court may deem fit to grant.

4.The appellants, in their statement of defence dated 24^th April 2014 stated that, in the year 2000, the deceased was married to one CA. They denied that the respondent was married to the deceased or that he was in Kenya in 2000, and stated that the properties listed, including the suit property, was purchase solely by the deceased; that the respondent conned the deceased who, at the time, was suffering from cancer, into allowing him to hold 40% of the suit property; that, recognising that she did not have long to live, the deceased left all original documents relating to the suit property, including evidence of payment to the appellants; and that the respondent had no interest in the motor vehicles or any movable property, as all were solely owned by the deceased.

5.The appellants further claimed that the deceased was a solicitor in the United Kingdom while the respondent was an unemployed Liberian national, holding a United Kingdom passport who had for the past 40 years been maintained by the State at the taxpayer’s expense on a Social Security Job Seeker’s allowance; that the respondent was a friend of the deceased, and run a few errands for her, but that there was no relationship between them; that the deceased lived in her own house while the respondent lived in a small flat provided by the State; that, at the time of her death, the deceased was living with the 3^rd appellant on the suit property; that the respondent’s coming to Kenya was calculated to lay claim over the deceased’s estate and enrich himself from his casual knowledge of the deceased; that, when the 1^st and 2^nd appellants arrived from Australia and United Kingdom respectively, they entered the home, organised the burial and invited relatives and friends, but that the respondent did not attend the same or the burial; that the 3^rd appellant had been staying on the suit property with the deceased’s permission, and who expressly wished him to continue staying there; and that the appellants’ entry into the house on the suit property was lawful, and that there was no lawful basis to have them injuncted or evicted therefrom.

6.The matter was heard based on viva voce evidence during which the respondent, testifying as PW1, stated that he was living in London and was a musician, a bookkeeper and would sometimes do odd jobs; while reiterating the contents of his statements as set in the amended plaint, the respondent disclosed that the deceased had been his partner since the year 2000, and that they came to Kenya together in 2005 when they bought properties including the suit property; that the deceased died towards the end of March 2014; that, when he came over to arrange for her burial, the 1^st appellant who had come from Australia, the 2^nd appellants who had come from London, and the 3^rd appellant who was on the suit property, denied him access to the property; that, although he managed to force his way into the house, he was eventually removed and never returned there; that the suit property was in their joint names with the deceased; and that the appellants had no right to the property since he had the original title which he exhibited.

7.In his evidence, the respondent referred to several photos taken by himself and the deceased both in Kenya and in London to prove the existence of their relationship which, according to him, was well known to the 2^nd appellant, who appeared in one of the photographs. He also referred to one photo of the deceased’s late father, a former minister in the 1960’s. According to the respondent, he was not invited to the funeral and was not permitted to view the deceased’s body. He also produced the certificate of divorce between the deceased and CA which, according to him, was a marriage of convenience. However, by the time their relationship started, the deceased did not have a decree absolute which she eventually obtained on 16^th March 2004, and which he exhibited.

8.The respondent also testified that, together with the deceased, they used to run a legal office in London which they closed due to indebtedness to the Law Society; and that they imported an agricultural trailer, office equipment, computers, desks paper, lamps and part of the kitchen which the deceased wanted to install in the suit property. He also produced release order for a 40 fort container, one used arrow trailer, one used tractor and personal effects as well as his telephone records showing how often he was in contact with the deceased in London and in Kenya covering 58 sheets. He disclosed that the deceased had multiple myeloma which developed into cancerous blood cells.

9.The respondents further produced the copy of the record (log books) of two vehicles that they were using in Kenya registered in the names of the deceased’s friends, Mumbi Nthenya and Anne Akinyi, which vehicles were confiscated by the appellants. In the respondent’s evidence, since the appellants took over the suit property, the electricity bills, which he produced, were not being paid.

10.According to the respondent, in 2005, they travelled with the deceased to see the deceased’s mother, F, in Dudi where he met the 3^rd appellant and his fiancée, one Elizabeth; that, at that time, they were sourcing for materials for a school project they were funding situated next to the deceased’s home; that the deceased’s mother, who, in any event visited then twice in Nyali, had no objection to their relationship; that they would take her mother to a hospital in Kisumu; that the 3^rd appellant was accommodated in their house in Nyali but, after he was involved in an accident with one of the vehicles, the deceased sent him back home; that, after several pleas to be allowed back, the deceased allowed him to return between 2011 and 2014, but did not place him in charge; that, instead, the deceased had an agent who was collecting rental money from the Nyali house; that the 3^rd appellant stayed in the servant quarter in the suit property while the deceased occupied the main house; that , whenever the respondent was in Kenya, they would stay with the deceased in the Nyali house.

11.It was the respondent’s evidence that, although they were not formally married, they lived as husband and wife since 2000; that his name was not in the log books for the cars and the tractors; that he did not mislead the deceased to give him 40% of the suit property when she was in poor health since the deceased was a lawyer and drew the agreement herself; and that, at the time the title was issued on 25^th February 2011, the deceased was not in poor health and that her physical health started deteriorating by the end of 2011.

12.The respondent disclosed that he met the 1^st appellant in London in 2013 although he had heard of him in 2000 when he begun the relationship with the deceased; that, they had agreed to visit the 1^st appellant in 2004, when the respondent was on a visit in Texas; that the 1^st appellant had known of their relationship since 2004; that the deceased moved into his flat and rented 2 houses from whose proceeds she funded the project at home; that, although there were times he lived on social security, it was not for a substantial time; that they bought properties together; and that, while the deceased ran the offices, he was the bookkeeper, banker and records keeper.

13.The respondent also gave detailed evidence concerning other family members of the deceased whom they assisted but who never resided on the suit property together with a detailed account of the properties and items that were in the house on the suit property. It was his evidence that the deceased introduced him to people in Mombasa as her husband. He insisted that the deceased was his wife, and that they live together and represented themselves as husband and wife since 2002 both in Kenya and in London, although their relationship started in 2000. According to him, the appellants were not the deceased’s dependants.

14.In cross-examination, the respondent conceded that no Luo customary marriage ceremonies, such as payment of dowry, were conducted between him and the deceased.

15.PW2, Joseph Lazely Ernestine, a farmer and a mechanic residing in Majengo, testified that he first met the deceased, a family friend and a client, in 2011 when the deceased and the respondent visited his workshop; that the deceased introduced the respondent as “Mzee”, a colloquial Swahili word for husband; that, during the conversation, the deceased told him that they were together in United Kingdom and came to Kenya to buy a piece of land to settle; that the respondent and the deceased were staying in Nyali while constructing their house in Kikambala; that he was aware that, when the deceased died, the respondent was in Europe; that they used to meet whenever the respondent was around since they were running similar businesses; that he had been to their house and confirmed that the deceased and the respondent shared the same bedroom; that he met the appellants who were the deceased’s siblings in the Kikambala residence in the presence of the respondent many times; that the deceased had a ploughing tractor and had ordered another one from the United Kingdom which he assisted in unloading from the truck; and that the deceased and the respondent were husband and wife.

16.PW3, Gerishom Kutekha Shikombe, an engineer by profession, testified that, as a consultant, he interacted with the deceased and the respondent; that, before the deceased and the respondent put up their Kikambala house, they had a house in Nyali which only had one bedroom; that the deceased and the respondent shared the house and the bedroom; that, on various occasions when the respondent and the deceased went to his workshop, they went as husband and wife and he would see them kissing; that they informed him that they had bought a tractor in UK and wanted him to inspect the same in Nyali before taking it to the Kikambala farm; that he advised them appropriately as they wanted to use it for ploughing at the farm; that they contracted him to supply accessories and that every time the deceased used to obtain the respondent’s consent referring to him as “Mzee” before payment; that he sourced for the deceased and the respondent a concrete mixer to put up their house; that it was inspected by the respondent before it was bought; that he witnessed the ground breaking during which he asked the deceased why they were building such a big house and the deceased stated that “Mzee” had a very big family that would be visiting; that, although he suggested that the tree in the compound be cut, the deceased refused saying that it was planted by “Mzee”; that he also referred his nephew Joseph, to them to help them maintain the concrete mixer and to act as their driver; that, during his interaction with the respondent and the deceased, he knew they were husband and wife having met them in 2009 upto 2014 when the deceased died; and that the deceased confirmed to him that the respondent was her husband and informed him that, in her absence, the respondent could view the land.

17.Kaingu Charo Chogo, PW4, a farmer and a member of their community policing, stated that he knew the deceased and the respondent whom he met in 2005 when the deceased and the respondent went to view a piece of land in respect of which he was a caretaker; that the deceased introduced the respondent as her husband; and that the deceased’s family did not allow the respondent to be involved in the funeral arrangements. PW5, Pande Chula Dida, identified the basket which he made for the deceased as a gift, and that he met the deceased and the respondent in 2008 when the deceased informed her that the respondent was her husband, which the respondent confirmed.

18.The appellants, on their part, relied on the evidence of the 1^st appellant, Erick Matakwa Okeno, a brother to the deceased, who testified as DW1 and stated that the 2^nd and 3^rd appellants were his siblings; that he was a resident of New South Wales Australia; that, following the death of the deceased in her residence in Kikambala on 28^th March 2014, he travelled to Kenya within three days and started making funeral arrangements; that he became aware of the deceased’s condition when it begun to manifest itself in 2011, although, it had been diagnosed earlier; that he first met the respondent in 2010 at the deceased’s home in Nyali and later in the UK in 2013 when he went on 3-day visit; that deceased introduced the respondent as her assistant in running errands for her in Kenya and in her law firm in London; that the deceased never introduced the respondent to him as her husband or someone with whom she had an intimate relationship; that the respondent never spent a night in the deceased’s house; and that he was not aware that the respondent was residing in the suit property.

19.It was his evidence that the respondent did not contribute anything towards or participate in the burial or funeral arrangements of the deceased; that he neither prevented the respondent from doing so nor chased him from the house; that the funeral service was at the Mombasa Memorial Cathedral, a public place, but that the respondent did not attend; that, when he met the respondent a few days before the funeral, he was aggressive and mentioned something about land; and that, although he was hoping that the respondent would make contact, he never did and, instead, after the funeral, the appellants received the summons in respect of this case.

20.DW1 confirmed that, according to the title and transfer to the suit property, the deceased was allocated 60% shares while the respondent had 40%; that the marriage between CA and the deceased was dissolved on 16^th March 2004; that the deceased was staying with her relatives as well as the 3^rd appellant, who was assisting her in supervising the workers; that, during his visit to his sister which was once or twice a year, he never saw the respondent living in the suit property, although he would at time see him; that, although the respondent was indicated as having a share in the suit property, it was unfair to say that he was entitled to 40% of the developed suit property since the deceased used her own funds to develop the property; that the respondent was only entitled to 40% of the undeveloped portion; and that the deceased could not have gotten married to the respondent in 2000 since, by then, she was married to someone else, a marriage that was dissolved in 2004.

21.In cross-examination, DW1 admitted that he could not tell where the respondent was sleeping while in the suit property and that he was not always with the deceased; that he was not close to the deceased and she never told him that the respondent was her husband; that, since the death of the deceased, he was the one taking care of the property albeit informally; and that he made a complaint to the police against the 3^rd appellant in respect to the theft of the concrete mixer belonging to the deceased.

22.In her judgement, the learned Judge identified the issues for determination as to whether: the respondent had locus standi to institute the suit; there was a marriage between the respondent and the deceased; and whether the respondent was entitled to the orders sought.

23.On the first issue, the learned Judge found that the respondent did not move the court in his capacity as an administrator of the estate of the deceased, but as a co-owner of the suit property with the deceased; and that as a registered owner of the suit property, the respondent had every right and the necessary standing to file the suit against the appellants seeking the reliefs sought.

24.Regarding the second issue, the learned Judge noted that the 1^st appellant was a resident of New South Wales in Australia and visited the suit property once or twice a year; that it was improbable that he could be aware of what transpired between the deceased and the respondent whether in Kenya or in the UK; that the proper people to have had first-hand knowledge of what went on in the house in Nyali would have been the persons who stayed in the house, and who were identified as the 1^st appellant’s nephew, Jacob Okeno, Caren Okeno, one Cynthia and the 3^rd appellant, and yet they were not called as witnesses; and that, in the circumstances, the evidence of the 1^st appellant remained uncorroborated.

25.Referring to section 119 of the Evidence Act together with the cases of Hortensia Wanjiku Yawe v The Public Trustee Nairobi CACA No. 13 of 1976; and NLS v BRP [2016] eKLR, on presumption of marriage, the learned Judge held that long cohabitation and general repute are the key ingredients for presumption of marriage where parties in no formal marriage; and that the claim by the respondent that he was a husband to the deceased was corroborated by PW2, PW3, PW4 and PW5 while the appellants relied on the uncorroborated testimony of the 1^st appellant.

26.The learned Judge considered the fact that: the 1^st appellant met the respondent in the deceased’s house in both London and in Nyali; that the deceased entrusted the respondent with knowledge of all her property and even agreed to transfer 40% of the suit property to him; that the deceased introduced the respondent to at least 4 independent persons as her husband; and that the respondent accompanied the deceased when she went to view the land to purchase, to PW2’s workshop, to engage PW3 to inspect the tractor and to inspect the concrete mixer to be purchased through PW3, at the ground breaking for construction of the house on the suit property. These facts taken together with the general repute led the learned Judge to find that the relationship between the respondent and the deceased did crystallise into a marriage.

27.Regarding capacity to enter into a marriage, the learned Judge cited the case of Phylis Njoki Karanja & 2 Others v Rosemary Mueni Karanja & Another [2009] eKLR and found that, given that the deceased was still married to CA when she commenced cohabitation with the respondent in 2000, she did not have the legal capacity to marry the respondent or any other person until 2004 when the marriage between the deceased and CA was dissolved; and that the presumption of marriage between the respondent and the deceased could only be considered after 2004.

28.From the evidence adduced by the appellants relating to documents in support of transactions undertaken by the deceased in her own name between 2010 and 2012, the learned Judge found that the deceased was a very active and not sickly person; that the transfer of the suit property to the deceased and the respondent was dated 23^rd February 2011, and that the title was issued on 25^th February 2011; that, the deceased being a lawyer who practised law in the United Kingdom, was hardly a person to be taken advantage of by the respondent, an unemployed person who, according to the appellants, had been maintained by the State at taxpayer’s expense for the past 40 years,; and that, from the evidence adduced, the deceased could not have been too ill to be duped into transferring 40% of her interest in the suit property to the respondent.

29.Based on section 26(1) of the Land Registration Act, the learned Judge held that, upon registration of the suit property in the names of the deceased and the respondent, they both became absolute and indefeasible owners thereof, subject only to encumbrances contained in the certificate of title, and that it did not matter that the respondent did not contribute a cent towards its acquisition as alleged by the appellants; that, as a co-owner, the respondent had the absolute right to possession and occupation of the suit property and not even the deceased and certainly not the appellants had any right to interfere with his ownership, possession and peaceful enjoyment thereof; that the appellants had no colour of right to deny the respondent access to a property which he owned; that, if any party lacked locus standi, it was the appellants since they did not own the suit property or any of the properties owned by the deceased; that the only authority they could legally have over any of the deceased’s properties was by way of the deceased’s will or by the court; and that, since they had no such authority, their dealing with the deceased’s property amounted to intermeddling with her estate since their relationship to the deceased did not confer upon them any proprietary rights over the suit property or any other part of the estate of the deceased.

30.The learned Judge, based on the definition of “trespass” in Black’s Law Dictionary, found that, having unlawfully entered into and taken possession of the suit property without the respondent’s consent, the appellants’’ action amounted to trespass and the respondent was entitled to general damages. On the authority of the cases of Park Towers Ltd v John Mithamo Njika et al [2014] eKLR the learned Judge found that the appellants engaged in an unlawful act of aggression and/or intrusion that prevented the respondent as the rightful owner of the suit property from enjoyment of his ownership rights, possession and use of the suit property. Apart from the said property which was both an agricultural land in Kikambala and home to the respondent, the appellants also deprived the respondent access to his properties in the house, including his cat, furniture, electronics, musical instruments, 3 vehicles, 2 tractors and 2 agricultural trailers. However, the court noted that the respondent did not offer any assistance in the assessment of general damages and, based on the case of Nakuru Industries Limited v S S Mehta & Sons [2016] eKLR, the learned Judge awarded a nominal figure of Kshs 200,000 for each of the 6 years that the respondent was deprived of the use of his property.

31.Regarding the refund of Kshs 40,180 and compensation in the sum of Kshs 2,000 per day for utility bills from 3^rd April 2014 till the giving of vacant possession of the suit property, the court found that no evidence was adduced to support the claims and declined to award the same based on the authority of the case of Hahn v Singh [1985] KLR 716. Similarly, the learned Judge found no evidence of the respondent’s contribution or ownership of the other properties since no ownership document was produced by the respondent. The learned Judge was of the view that the claim in relation thereto could only be properly dealt with in succession proceedings relating to the estate of the deceased.

32.Consequently, the learned Judge directed the appellants to hand over vacant possession of the suit property to the respondent; awarded general damages for trespass in the sum of Kshs 1,200,00 together with interest from the date of the judgement till payment in full; and the costs of the suit.

33.Dissatisfied with the decision, the appellants filed this appeal in which they contend that the learned Judge erred in law and in fact: by failing to find that she had no jurisdiction to deal with land matters and or ownership of land; by failing to find that the respondent had no locus standi to institute the suit without taking out letters of administration to the deceased’s estate; by arriving at a decision that there was a valid marriage between the deceased and the respondent against the evidence; by arriving at a decision that the appellants were intermeddlers when there was no evidence to prove the same; by ignoring and or failing to find that the 1^st appellant was an administrator to the estate of the deceased; by awarding costs of the suit to the respondent; by making a finding that the appellants were jointly and severally liable for trespass when there was no evidence in support of the same; by making a finding on land registration, ownership and occupation without sufficient proof and evidence, thus arriving at an unreasonable decision; by unreasonably awarding general damages to the respondent when no sufficient evidence was tendered to prove the same; and by ordering the appellants to hand over vacant possession of the suit property jointly owned with the deceased to the respondent in exclusion of other lawful dependants to the estate of the deceased, hence arriving at an irrational, unreasonable and unjustifiable decision in the circumstances. Further grounds were that the learned Judge’s finding that the appellants were trespassers upon the property co-owned between the respondent and the deceased in the ratio of 40% and 60% was unreasonable, unjustifiable and against the evidence adduced; that the learned Judge descended into matter not pleaded before the court by the respondent and no sufficient evidence was tendered to substantiate those awards, and thus arriving at a wrong decision; and that the learned judge’s decision in totality and the evaluation of the facts and evidence adduced was biased, unfair and this occasioning injustice.

34.At the plenary hearing on the Court’s GoTo virtual platform on 6^th May 2024, learned counsel, Mr. Omondi, appeared for the appellant while learned counsel, Mr. Odhiambo, appeared for the respondent. Both counsel relied on their written submissions, which they briefly highlighted.

35.The appellant’s submissions dated 20^th February 2024 were filed by M/s. Omondi Abande & Co. Advocates in which they relied on: Kiruga v Kiruga & Another [1988] KLR 348, highlighting what constitutes “proof”; Peters v Sunday Post Ltd [1958] EA 424, reiterating the circumstances in which an appellate court interferes with the trial court’s findings of fact; Njoki v Mutheru [1985] KLR 487 on the proposition that an appellate court will not lightly interfere with the conclusions of the trial judge if there is evidence to support them; Sarma v VKY Sarma [2013] 15 SCC 755, highlighting the position that presumption of marriage cannot arise where the appellant was aware that the respondent was already married, and hence lacked the capacity to enter into another marriage; Mechani v Vernoor [1985] KLR 859, stressing that parties must have capacity to marry if a presumption of marriage is to be inferred; K. O. & Another v J. O [2018] eKLR, distinguishing marriage from sexual relationship; Eliud Maina v Margarete Wanjiru Gachanga [2019] eKLR, highlighting the dynamic nature of customary law; Sakina Sote Kaittany & Another v Mary Wamaitha [1995] eKLR, submitting on the onus of proof of establishing a particular customary law resting on the party relying on it; Gokal Chand v Parvin Kumari (AIR 1952 SC 231) on the proposition that presumption of marriage arising from long cohabitation is rebuttable; MNK v POM [2013] KESC 2 KLR, laying down the parameters within which a presumption of marriage can be made; Oyunge v Chweya [2023] eKLR stressing on the necessity of clear evidence before presumption of marriage can be given effect to; Owners of the Motor Vessel ‘Lilian S’ v Caltex Oil (Kenya) Ltd [1989] KLR; and S K Macharia v KCB & 2 Others Civil Application No. 2 of 2011, submitting on the court’s obligation to determine its jurisdiction before embarking on the determination of the case before it; M v RM [1985] eKLR, highlighting that courts should not be used to force parties into a marriage; and Re Estate of Alloys Obunga Aboge (Deceased) [2023] eKLR, submitting on the necessity of proving the existence of a marriage.

36.The respondent, on his part, without citing any case law, relied on the submissions dated 11^th March 2024 filed by Odhiambo S. E & Co. Advocates.

37.Before we delve into the merits of the submissions put to us, we restate this Court’s mandate on a first appeal as set out in rule 31(1) (a) of the Rules of this Court, which is to reappraise the evidence and draw our own conclusions as stated by the predecessor to this Court in Peters v Sunday Post Limited [1958] EA 424 where it was held that:“Whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution; if there is no evidence to support a particular conclusion, or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved, or has plainly gone wrong, the appellate court will not hesitate so to decide.”

38.A similar view was expressed in Abok James Odera T/A A.J. Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates [2013] eKLR where this Court held that:“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and re-analyze the extracts on the record and then determine whether the conclusions reached by the learned trial judge are to stand or not and give reasons either way.”

39.According to the appellants, the learned Judge arrogated herself jurisdiction to determine the issue of land ownership and registration when she had no jurisdiction to make such a determination; that the learned Judge could only exercise her jurisdiction in relation to the issues in dispute before her as established under the Constitution and, as such, the court had no jurisdiction to make findings on land registration and ownership or that the appellants were trespassers on the suit property; and that the court vested with such jurisdiction was the Environment and Land Court.

40.In response to this submission, the respondent contended that: the appellants never raised any objection in their defence that the trial court had no jurisdiction to hear and determine the case; that the respondent moved the court because the appellants denied him entry, occupation and use of the properties which belonged to the deceased person and that, therefore, the issue for determination by the court was not ownership of land per se; that, as a family court, the High Court had jurisdiction to hear and determine the suit pursuant to section 47 of the Law of Succession Act and rule 73 of the Probate and Administration Rules; that the only parcel of land which the court dealt with as far as ownership is concerned was the suit property in which the respondent had 40% share and the deceased had 60% share.

41.Since the appellants raised an issue going to the jurisdiction of the trial court, we take to mind the holding in the Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR that:“By jurisdiction is meant the authority which a court has to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by the like means. If no restriction or limit is imposed the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular court has cognisance, or as to the area over which the jurisdiction shall extend, or it may partake of both these characteristics. If the jurisdiction of an inferior court or tribunal (including an arbitrator) depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction; except where the court or tribunal has been given power to determine conclusively whether the facts exist. Where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given.”

42.Similar holding was made by the Supreme Court in the case of Samuel Kamau Macharia v Kenya Commercial Bank Limited and 2 Others [2012] eKLR where it held that:“(68)A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.”

43.In order to determine the issue of jurisdiction, it is important to discern what the cause of action in this matter was. According to the Court of Appeal of Uganda in Sebaggala v Attorney General and Others [1995-1998] EA 295:“A ‘cause of action’ means every fact, which, if traversed, it would be necessary for the plaintiff, to prove in order to support his right to a judgement of the Court. In other words, it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. It must include some act done by the defendant since in the absence of such an act no cause of action can probably accrue. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded. It does not comprise evidence necessary to prove the facts but every fact necessary for the plaintiff to prove to enable him to obtain decree. Everything, which is not proved, would give the defendant a right to an immediate judgement must be part of the cause of action. It is, in other words, a bundle of facts, which it is necessary for the plaintiff to prove in order to succeed in the suit. But it has no relation whatever to the defence which may be set up by the defendant, nor does it depend upon the character of the relief prayed for by the plaintiff. It is a media upon which the plaintiff asks the court to arrive at a conclusion in his favour. The cause of action must be antecedent to the institution of the suit.”

44.Waki, J (as he then was) held in the case of Attorney General & another v Andrew Maina Githinji & Another [2016] eKLR that:“A cause of action is an act on the part of the defendant, which gives the plaintiff his cause of complaint.”See also Pearson, J. in Drummond Jackson v British Medical Association (1970) 2 WLR 688 at p. 676

45.According to Lord Diplock in the case of Letang v Cooper [1964] 2 All ER 929 pg 934:“A cause of action is simply a factual situation, the existence of which entitles one person to obtain from the court a remedy against another person.”

46.Therefore, what constitutes the cause of action must be distilled from the facts as averred by the parties and not necessarily from the prayers sought or the relief granted. In this appeal, it is contended that the dispute before the learned Judge was one for determination of the land issue and as to who owned the suit property (Title No xxxx Kikambala/Kilifi), and that the jurisdiction was within the province of the Environment and Land Court, which is mandated to hear and determine disputes relating to the environment and the use and occupation of title to land

47.At the beginning of this judgement, we set out the respondent’s claim as set out in the said plaint. It is from that claim that we can determine what constitutes the cause of action. It was on that basis that the respondent sought, inter alia, a declaration that he is the owner of the suit properties and is entitled to the household and personal belongings in the suit property vacant possession thereof and damages for trespass. It is clear that the reliefs sought by the respondent were based on the fact that, together with the deceased, his wife, they purchased the suit property which in his view was their matrimonial home. Section 93 of the Land Registration Act Cap 300 provides that:““Subject to any written law to the contrary, if a spouse obtains an interest in land during the subsistence of a marriage for the co-ownership and use of both spouses or all spouses, such property may be deemed matrimonial property and shall be dealt with under the Matrimonial Property Act.”

48.In our view, that provision applies where (a) there exists a relationship of husband and wife; (b) a spouse obtains interest in land during the subsistence of that relationship; and (c) that interest is for the purposes of the co-ownership and use of both spouses. If these conditions are satisfied, then the property is deemed as matrimonial property and is thus dealt with under the Matrimonial Property Act.

49.On the question as to whether or not there was a marriage between the respondent and the deceased, it was submitted by the appellants, as regards the Luo Customary marriage, that the respondent did not comply with the traditional marriage dictates of the Luo culture to which the deceased belonged. The respondent’s response to these issues was that his evidence was not that he had married the deceased in accordance with the Luo Customary Laws, but in accordance with the Common Law having cohabited with her for a long period of time.

50.This issue can be dealt with very briefly. Although the respondent, in his pleadings alleged that he got married to the deceased under the Luo Customary Law in 2000, no evidence was led to support that allegation, and the learned Judge made no finding in her judgement in respect thereof. In fact, in cross examination, the respondent conceded that no Luo customary law marriage ceremonies such as payment of dowry were conducted between him and the deceased. Since no finding was made thereon, it cannot be a proper ground of appeal unless the appellants’ contention is that, by not making a finding thereon, prejudice was occasioned to them and no such allegation was made. Nothing turns on the failure to make a finding on the issue which seemed to have been abandoned and, in any case, the matter was eventually decided on the common law presumption of marriage. Accordingly, the extensive submissions by the appellants on the Luo customary law are not relevant in this appeal.

51.On the presumption of marriage, the appellants submitted that given that the deceased had no capacity to marry the respondent, any marriage was void, and hence, the presumption of marriage could not arise. The respondent did not directly deal with this issue. We are aware of this Court’s position in Machani v Vernoor [1985] KLR 859 that:“It would not be right to acknowledge that existence by presuming that a marriage at customary law had been entered into. Indeed, if Fender v Mildmay (1938) AC 1, is considered, it would be wrong to “promise” to marry a third party before a decree nisi of divorce had been granted. Hence, if the adulterous association arose and ended during the continuance of a previous marriage, it would always be illegitimate association. The presumption covers two aspects, that the parties had the capacity to enter into a marriage, and that they did so in effect. During the continuance of a previous marriage, the already married party would have no capacity to enter into the new marriage, and the new marriage would be null until the previous marriage had been brought to an end by a final decree of divorce; such as a decree absolute (see Rayden on Divorce 12th Edition volume 1 page 600 – the latest edition is to the same effect). The defendant in this case did not treat her marriage to Mr Vermoor with the seriousness that section 37 of the Marriage Act requires. The main idea of the defendant was that as the marriage to Mr Vermoor was a sham marriage, there was no reason why she and the plaintiff should not start to live together, as it was common for such associations to spring up in Nairobi. It may well be that there is a certain fashion to commence illegitimate associations of one sort or another, but it is not within the province of this judgment to deal with that aspect of urban life. It is sufficient to say that this alleged fashion gives the defendant no comfort”.

52.The learned Judge was alive to the fact that lack of capacity to marry disentitles a claimant to positive finding of the presumption of marriage. The learned Judge therefore correctly expressed herself as follows:“Given that the deceased was still married to CA when she commenced cohabitation with the respondent in 2000, she did not have the legal capacity to marry the plaintiff, or any other person for that matter. Accordingly, it will only be safe to presume the existence of a marriage between the deceased and the plaintiff, not from 2000 but from 2004, when the marriage between the deceased and CA was dissolved.”

53.The learned Judge cannot be faulted for failing to find that the marriage between the deceased and the respondent was null and void ab initio. While the relationship between the deceased and the respondent prior to 2004 could not be taken into account in determining their marital status, the period thereafter was properly taken into account.

54.Related to the above submission was the submission by the appellants that the respondent never provided any evidence that he had dissolved his marriage to Tesla Harriet Roberts as at 2000. This submission was made in support of the assertion that the respondent similarly lacked the capacity to enter into a marital relationship with the deceased. The position taken by the respondent was that, although new evidence was adduced by leave of the Court, the respondent proved that he had capacity to marry by producing the certificate of dissolution of marriage to Tesla Harriet Roberts.

55.It is true that a single Judge of this Court (Odunga, JA), on 17^th March 2023 granted leave to the appellants to adduce fresh evidence regarding the authenticity of the document purporting to dissolve the marriage between the respondent and the Tesla Harriet Roberts. That evidence was adduced before Mutai, J. and, in his opinion of 7^th February 2024, the learned Judge concluded that:“[The plaintiff] produced 2 documents which I marked as exhibits 1 and 2. One of the documents he produced was a decree absolute dated 6^th January 1987 which appears to show that his marriage to Ms Tesla Harriet Roberts, the wife he married in 1982, was dissolved on the said date. On the basis of the said documents he testified that he had the capacity to marry the deceased. In this court’s opinion the plaintiff was a credible witness. The plaintiff conceded that he had been married to Tesla Harriet Roberts. In view of his admission document 2 in the defendant’s Supplementary List of Documents is deemed by this court as genuine. The documents produced by the plaintiff appears to have been issued by His Majesty’s Courts and Tribunal Service in England and Wales. In my opinion the said documents are credible.”

56.It is clear from the said opinion that it was partly based on the court’s opinion on the credibility of the witnesses. It is trite that where there is a conflict of primary facts between witnesses and where the credibility of the witnesses is crucial, the appellate court hardly interferes with the conclusion made by the trial court after weighing the credibility of the witnesses. See Nyagwoka Ogora alias Kennedy Kemoni Bwogora v Francis Osoro Marko Civil Appeal No. 271 of 2001. No compelling reason has been given to us to justify interfering with the learned Judge’s opinion. Based thereon, we find that the marriage between the respondent and the said Tesla Harriet Roberts was duly dissolved, and that the respondent had the capacity to enter into a marriage with the deceased.

57.On whether a presumption of marriage under the common law could be inferred from the relationship between the respondent and the deceased, it was submitted on behalf of the appellants that the appellants, being family members of the deceased, did not recognise the respondent and the deceased to be husband and wife; that, the respondent having failed to prove any form of marriage between him and the deceased based on cohabitation, the court should not have found that there was a presumption of marriage in the circumstances; that there was no evidence of the respondent’s cohabitation and subsequent solemnization of his marriage with the deceased culminating into the issuance of a marriage certificate; that the relationship between the respondent and the deceased and the resulting cohabitation could not be deemed to have brought forth a marriage and, therefore, the presumption of marriage could not be invoked; that the appellant in his evidence stated that he had not lived in Kikambala except participation in building a house; that the deceased expressly denied that the respondent was her husband; and that the mere fact that the respondent claimed that they lived together with the deceased did not equate to marriage.

58.In response, the respondent submitted that the learned Judge analysed and evaluated the evidence by both parties and arrived at a proper and well-reasoned conclusion; that the respondent called witnesses who testified that the respondent was introduced to them by the deceased as ‘Mzee’ meaning husband; and that the 1^st appellant admitted that, at one time, he visited the deceased at her Nyali residence and found the respondent there, but that he did not know where the respondent slept after he retired to bed.

59.We therefore have to determine whether the finding by the learned Judge that there was a presumption of marriage between the respondent and the deceased was based on consideration of irrelevant facts or factors, non-consideration of relevant matters, misapprehension of evidence or application of wrong principles. Section 119 of the Evidence Act provides for presumption of likely facts by stating that:The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.

60.Presumption of marriage is a common law principle that long cohabitation of a man and woman with a general reputation as husband and wife raises a presumption that the parties have contracted a marriage. It is a concept born from the appreciation of the needs of the realities of life that, when a man and woman cohabit for a long period without solemnizing their union by going through a recognized form of marriage, then a presumption of marriage arises. Like any other legal presumption, it is a rebuttable presumption and may not hold in the face of proof to the contrary.

61.Volume 72 of Halsbury’s Laws of England, 5^th Edition 2015, on Matrimonial and Civil Partnership Law states:“Where a man and a woman have cohabited for such a length of time, in such circumstances, as to have acquired the reputation of being man and wife, a lawful marriage between them will be presumed even if there is no prior evidence of any marriage ceremony having taken place, particularly where the relevant facts have occurred outside the jurisdiction and this presumption can be rebutted only by strong and weighty evidence to the contrary.”

62.Similarly, Bromley Family Law 5^th Edition provides that:“If a man and woman cohabit and hold themselves out as husband and wife, this in itself raises a presumption that they are legally married.”

63.Expounding on the principle of presumption of marriage, Madan, JA (as he then was) in his opinion in Mary Njoki v John Kinyanjui Mutheru & 3 Others 1985 eKLR cited the case of Hortensiah Wanjiku Yaweh v Public Trustee Civil Appeal No. 13 of 1976 and held that:“The concept of presumption of marriage is not new in Kenya…The presumption is nothing more than an assumption that the parties must be married irrespective of the nature of the marriage actually contracted or irrespective of marriage if one is not actually contracted…It is a concept born from an appreciation of the needs of the realities of life when a man and woman cohabit for a long period without solemnising their union by going through a solemnised form of marriage, then a presumption of marriage arises. If the woman is left stranded either by being cast away by the ‘husband’, or because he dies, occurrences, which do happen, the law, subject to the requisite proof, bestows the status of ‘wife’ upon the woman to enable her to qualify for maintenance or a share in the estate of her deceased ‘husband’. It is a concept, which is beneficial to the union of marriage, to the status of the parties and to the issue of their union.”

64.The learned Judge explained the distinction between cases based on the existence of a marriage and those in which marriage is presumed by adding that:““For a presumption of marriage to arise it was not necessary for the deceased to evince any form of marriage with the appellant. The presumption of marriage has nothing to do with the law of marriage as such, whether this be ecclesiastical, statutory or customary. The fallacy burdening the learned Judge’s reasoning was that manifestation of an intention to marry, or an actual marriage ceremony were indispensable requisites for a presumption of marriage to arise. If an expressed intention to marry, or if there had been an actual marriage ceremony, these proceedings would have been taken entirely differently, even in the case of these two incidents themselves…A promise to marry was not required to make the presumption, nor was the performance of any customary ceremonies, or any meeting between the clans for any kind of ceremony required to take place and that is why the deceased’s family members were not involved in any marriage negotiations.”

65.As to what ought to be considered in determining the presumption of marriage, Nyarangi, JA in the same matter opined that:“…before a presumption of marriage can arise, a party needs to establish long cohabitation and acts showing general repute. If the woman bears a child or better still children, so that the man could not be heard to say that he is not the father of the children, that would be a factor very much in favour of presumption of marriage. Also, if say, the two acquired valuable property together and consequently had jointly to repay a loan over a long period, that would be just what a husband and wife do and so it would be unreasonable to regard the particular man and woman differently.Performance of some ceremony of marriage would be strong evidence of the general repute that the parties are married. To sum it, there has to be evidence that the long cohabitation is not close friendship between a man and woman, that she is not a concubine but that the cohabitation has crystallized into a marriage and that it is safe to presume that there is a marriage…presumption of marriage, being an assumption does not require proof, of an attempt to go through a form of marriage known to law.”

66.It follows, therefore, that mere intimacy between a man and a woman, however short, does not constitute a marriage. In other words, there has to be evidence that the long cohabitation is not merely close friendship between a man and woman, or that she is not a concubine, but that the cohabitation has crystallized into a marriage. Similarly, cohabitation without a reputation that the parties are holding themselves and conducting their affairs as husband and wife does not constitute a marriage. The Supreme Court in MNK v POM ; Initiative for Strategic Litigation in Africa (ISLA) (Amicus Curiae) [2023] KESC 2 (KLR) pointed out that:“66.marriage is an institution that has traditional, religious, economic, social and cultural meaning for many Kenyans. However, it is becoming increasingly common for two consenting adults to live together for long durations where these two adults have neither the desire, wish nor intention to be within the confines of matrimony. This court recognizes that there exists relationships where couples cohabit with no intention whatsoever of contracting a marriage. In such contexts, such couples may choose to have an interdependent relationship outside marriage. While some may find this amoral or incredible, it is a reality of the times we live in today.67.For instance, a person may have been in a marriage before and the marriage is no more due to death of a spouse or divorce. Due to their prior experiences, such persons may choose to have an interdependent relationship outside of marriage. For others, it may just be their desire never to marry but have a partner without the confines of marriage. Where such situation is evident and there is no intention whatsoever of contracting a marriage, the presumption of marriage must never be made where this intention does not exist. It must always be remembered that marriage is a voluntary union. As such, courts should shy away from imposing ‘marriage’ on unwilling persons.68.In addition, in our ever-changing society, current statistics reveal that a man and a woman can choose to cohabit with the express intention that their cohabitation does not constitute a marriage. The pervasiveness of having interdependent relationships outside marriage over the past few decades means that no inferences about marital status can be drawn from living under the same roof. ‘Interdependent relationships outside marriage’ is not a new concept.”

67.The Court laid out the strict parameters within which a presumption of marriage can be made as follows:1.“The parties must have lived together for a long period of time.2.The parties must have the legal right or capacity to marry.3.The parties must have intended to marry.4.There must be consent by both parties.5.The parties must have held themselves out to the outside world as being a married couple.6.The onus of proving the presumption is on the party who alleges it.7.The evidence to rebut the presumption has to be strong, distinct, satisfactory and conclusive.8.The standard of proof is on a balance of probabilities.”

68.The Court was quick to point out that the doctrine of presumption of marriage is on its deathbed a reasoning reinforced by the changes to the matrimonial laws in Kenya and held that, as such, this presumption should only be used sparingly where there is cogent evidence to buttress it.

69.In this case, the learned Judge expressed herself as follows:“The claim by the plaintiff that he was a husband of the deceased was corroborated by PW2, PW3, PW4 and PW5. The defendants on the other hand relied on the testimony of the 1^st defendant which was not corroborated. If as the defendants claim, the plaintiff had only a casual knowledge of the deceased, why did the 1^st defendant meet the plaintiff in the deceased’s home in London and again in her house in Nyali? Why would she entrust him, a casual acquaintance, with knowledge of all her property and even agree to the transfer [of] 40% of Plot No. xxxx to him. Why would she introduce the plaintiff to at least 4 independent persons as her husband, if he was just a casual acquaintance? Why would she be accompanied by the plaintiff, a casual acquaintance, when she went to view the land to purchase, when she went to PW2’s workshop, and then to meet PW3, to engage him to inspect the tractor. Why would the plaintiff be the one who inspected the concrete mixer that was purchased through PW3 if their relationship was just casual? Indeed, what was he doing in Kenya and at the deceased’s house. There were even exhibited pictures of the deceased and the plaintiff at the ground breaking for the construction of the house on plot xxxx. All these factors taken together, as well as general repute lead me to the finding that the relationship between the deceased and the plaintiff did crystallise into a marriage.”

70.The foregoing finding was a finding of fact based on the evidence as presented. This Court (Apaloo, JA, as he then was) in Kiruga v Kiruga & Another [1988] KLR 348, while dealing with what amounts to proof, cited Watt v Thomas [1947] AC 484; Peters v Sunday Post Ltd (supra) and expressed itself as hereunder:“The word “proof”, as a legal concept, is not pre-ordained and has no objective existence, discoverable either by logic or analysis. It is merely the conclusion that the tribunal draws on any given set of facts or evidence. If the evidence is available and accepted, unless the law directs that a certain fact should be “proved” in a certain way, it cannot be the proper province of an appellate court merely to read that evidence and hold “it is not proved”. That really is another way of saying it is not persuaded by evidence. But the tribunal that needs to be persuaded, is the tribunal of fact to which the evidence is given not one which merely reads it in print. The only suggestion of the trial Judge having misdirected himself was on the onus of proof; but the trial Judge, quite rightly, makes no reference to the onus of proof, for, as often pointed out, no question of the burden of proof as a determining factor of the case arises on a concluded proof, except in so far as the court is ultimately unable to come to a definite conclusion on the evidence, or some part of it, and the question will arise as to which party has to suffer thereby. The trial Judge came to a definite conclusion on the evidence and no question of onus did or could arise. An appeal court cannot properly substitute its own factual finding for that of a trial court unless there is no evidence to support the finding or unless the Judge can be said to be plainly wrong. It is a strong thing for an appellate court to differ, from the finding, on question of facts, of the Judge who tried the case and who had the advantage of seeing and hearing the witnesses. An appellate court has indeed the jurisdiction to review the evidence in order to determine whether the conclusion originally reached upon evidence should stand. But this is jurisdiction, which should be exercised with caution; it is not enough that the appellate court might itself have come to a different conclusion.”

71.As this Court (per Hancox, JA, as he then was), in Mohammed Mahmoud Jabane v Highstone Butty Tongoi Olenja [1986] KLR 661; [1986-1989] EA 183:“The appellate Court only interferes with the trial Court’s findings of fact if it is shown that he took into account facts or factors which he should have not taken into account, or that he failed to take into account matters of which he should have taken into account, that he misapprehended the effect of the evidence or that he demonstrably acted on wrong principles in reaching the findings he did.”

72.This being a civil matter, the onus of proving constitutive elements of presumption of marriage is generally on the party who claims it and the standard of proof is the usual one for a civil action, namely, on the balance of probabilities. As this Court held in Palace Investment Ltd v Geoffrey Kariuki Mwenda & Another (2015) eKLR:“Denning J. in Miller v Minister of Pensions (1947) 2 All ER 372 discussing the burden of proof had this to say;-‘That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say; we think it more probable than not; the burden is discharged, but if the probability is equal it is not. This burden on a balance of preponderance of probabilities means a win, however narrow. A draw is not enough. So in any case in which a tribunal cannot decide one way or the other which evidence to accept, where both parties…are equally (un)convincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained.’”

73.The learned Judge, when weighing the evidence of the 1^st appellant, rightly in our view, observed that:““the 1^st defendant is a resident of New South Wales in Australia and visited the house on Plot xxxx once or twice a year. It is impossible that he could be aware of what transpired between the deceased and the plaintiff, whether in Kenya or in the UK. The 1^st defendant stated that the persons who stayed at the house on Plot xxxx are his nephews, Jacob Okeno, Caren Okeno and an orphan named Cynthia who the deceased supported. He also stated that the 3^rd defendant assisted the deceased in supervising the workers. These in my view are the persons who had first hand knowledge of what went on in that house. It is not clear why they were not called as witnesses to support the 1^st defendant. His evidence therefore remains uncorroborated.”

74.We agree that, in these circumstances, that the best evidence would probably have come from the persons who ordinarily resided with the deceased and who were able to testify as to the daily ongoings between the deceased and the respondent. By failing to call them to testify, the appellants squandered the opportunity to rebut the respondent’s evidence, which was supported by independent witnesses. In Hottensiah Wanjiku Yawe v Public Trustee(supra) Mustafa, JA expressed himself as follows:““the onus of proving that [the appellant] was married to the deceased was on the appellant. But in assessing the evidence on this issue, the trial judge omitted to take into consideration a very important factor. Long cohabitation as man and wife gives rise to a presumption of marriage in favour of the appellant. Only cogent evidence to the contrary can rebut such a presumption, see re: Taplin - Watson v Tate (1937) 3 All ER 105….However in considering whether there was a marriage the trial judge ought to have taken account of the presumption of marriage in the appellant’s favour. Such a presumption carries considerable weight in the assessment of evidence. Once that factor is put into the balance in the appellant’s favour, the scale must tilt in her direction.” [Underlining ours].

75.In the instant case, considering the evidence adduced by the respondent in the absence of cogent evidence from the appellants, the scale tilted in the respondent’s direction.

76.The appellants’ submission that the marriage between the deceased and the respondent was not recognised by the family and that the marriage was not solemnised misses the point. Presumption of marriage under the common law does not depend on the recognition of the relationship by the families of the couple and it is the missing element of its solemnisation that justifies the presumption. Both cohabitation and repute are to be considered on their own facts and the burden is on the party propounding the existence of a marriage to adduce satisfactory evidence that the ingredients of a marriage, notwithstanding lack of formal legal formalities, exits. As this Court held in Phyllis Njoki Karanja & 2 Others v Rosemary Mueni Karanja & Another (supra):“Before a presumption of marriage can arise a party needs to establish long cohabitation and acts of general repute; that long cohabitation is not mere friendship or that the woman is not a mere concubine but that the long cohabitation has crystallized into a marriage and it is safe to presume the existence of a marriage. We are of the view that since the presumption is in the nature of an assumption it is not imperative that certain customary rites be performed: see Gachege v Wanjugu [1991] KLR 147.”

77.We therefore find that there existed a relationship of husband and wife between the respondent and the deceased.

78.The second condition for the application is whether a spouse [in this case the respondent] obtained interest in the suit property during the subsistence of that relationship. It is not in doubt that the suit property was registered in the names of the deceased and the respondent. In the transfer signed on 23^rd February 2011, it was clear that the respondent and the deceased held 60% and 40% respective shares in the said property. It follows that the deceased and the respondent had a co-ownership of the suit property.

79.As to whether the respondent obtained interest in the suit property during the marriage, presumption of marriage, dependent as it is on long cohabitation and repute a determination, unlike statutory marriage, is not an event but a transaction and the actual date of the marriage cannot be determined with the certainty. This must be so due to the fact that it is a presumption arising from the events spanning a period of time rather than a single event. We therefore find that the co-ownership interest in the suit property was acquired during the marriage between the respondent and the deceased.

80.From the evidence adduced by the respondent, it is clear that the suit property was intended to and was used for their common ownership.

81.Having found that all the ingredients set out in section 93 of the Matrimonial Property Act were satisfied by the respondent, we hold that the applicable law in the matter before the trial court was the Matrimonial Property Act. In Maria Mutisya v Kiezil Helmuth Mombasa Civil Appeal No. E056 of 2021, this Court held that:““Although it is worthy of note that the Matrimonial Property Act does not specifically define the “court” under whose remit it is to hear and determine matrimonial causes, it cannot be disregarded that, the express provisions of the Constitution and the Environment and Land Act do not clothe the Environment and Land Court with jurisdiction to determine matrimonial causes and matters that fall under the Matrimonial Property Act. Such matters are the preserve of the High Court which has unlimited jurisdiction to hear civil matters such as the one that was before the trial court.”

82.We therefore find that the High Court was the right forum for the hearing and disposal of the suit and the trial court had jurisdiction to determine the issues before her. The first ground of appeal therefore fails.

83.Regarding the second ground of appeal that the learned Judge erred in failing to find that the respondent had no locus standi to institute the suit without taking out grant of letters of representation to the deceased’s estate, no submissions were made in respect thereof by the appellants. In his brief submission on the matter, the respondent drew our attention to the fact that the same issue was raised in the application dated 8^th January 2016 and was dismissed by the trial court in the ruling dated 17^th November 2016 and that no appeal or application for review was filed against the said ruling.

84.We take to mind that the respondent’s claim was in respect of his interest in the suit property to which access was denied him by the appellants. His interest was that of a co-owner seeking to recover his property from invaders. In that regard, he was not claiming the property as a beneficiary of the estate of the deceased. We hold that in those circumstances, the respondent did not require the grant letters of administration in order to seek orders for vacant possession of the suit property. We agree with the learned trial Judge that:“As a registered owner of Plot xxxx, the plaintiff has every right and the necessary standing to file suit against the Defendants seeking the listed reliefs. It is upon the Court to make a determination regarding the extent to which the orders sought shall be granted. Accordingly, my finding is that the contention that the suit is void ab initio for want of a grant of representation is misplaced and lacks merit.”

85.We have adequately dealt with the third ground that faulted the learned Judge for arriving at a decision that there was a valid marriage between the deceased and the respondent. We find no basis in that ground of appeal.

86.The next three grounds of appeal: whether the learned Judge erred in arriving at a decision that the appellants were intermeddlers; whether the court ignored and or failed to find that the 1^st appellant was an administrator to the estate of the deceased; and whether the learned Judge erred in finding that the appellants jointly and severally are liable for trespass, may be dealt with together. It was submitted by the appellants that based on the evidence, the 1^st appellant was the administrator of the estate of the deceased on the strength of the certificate of confirmation of grant dated 11^th July 2016 hence was not an intermeddler; that the 2^nd and 3^rd appellants were beneficiaries of the estate of the deceased; and that in those circumstances, the appellants were not trespassers on the suit property considering that the respondent and the deceased owned the suit property in the ratio of 40% to 60%. On his part the respondent submitted that the appellants did not produce grant of letters of administration to prove that they had capacity to deal with the estate of the deceased; and that the learned Judge rightly held that the appellants were intermeddling with the estate of the deceased

87.The appellant gave evidence that when he came over to arrange for the deceased’s burial, the 1^st appellant who had come from Australia, the 2^nd appellants who had come from London and the 3^rd appellant who was on the suit property denied him access to the property; and that although he managed to force his way in, he was eventually removed and never returned to the suit property. His evidence was supported by the evidence of PW4, the caretaker of the land on which the suit property was situate who confirmed that the deceased’s family did not allow the respondent to be involved in the funeral arrangements. His evidence was not challenged in cross-examination. The 2^nd and 3^rd appellants did not give evidence to challenge the evidence of the respondent and PW4. To our mind it matters not whether the 1^st appellant had or had no letters of administration. The appellants simply had no right to deny the respondent access to the property co-owned by him and the deceased whether or not he intended to participate in the funeral. As a proprietor of the suit property he had the right to access it. In his evidence in chief the 1^st appellant stated that he asked his late mother to get legal counsel and that she got a grant of letters of administration. In cross examination, he admitted that he had not produced any document to confirm that his mother obtained letters of administration. In those circumstances, there was no evidence on record to prove that the 1^st appellant had obtained grant of letters of administration as alleged.

88.In the premises, we agree with the learned Judge’s findings that:“The Defendants have engaged in an unlawful act of aggression and/or intrusion that has prevented the plaintiff as the rightful owner of Plot xxxx, from enjoyment of his ownership rights of possession and use.”

89.In light of lack of proof that they had any interest in the suit property save for being related to the deceased and having produced no evidence that they had obtained letters of administration in respect of the estate of the deceased, the appellants had no lawful basis for being on the suit property. The learned Judge rightfully found that they were trespassers thereon. Being siblings to the deceased did not in law confer upon them propriety interests in the estate of the deceased unless grant of representation had been issued and the said siblings identified as beneficiaries to the estate of the deceased.

90.The learned Judge was faulted for making a finding on land registration, ownership and occupation without sufficient proof and evidence thus arriving at an unreasonable decision; that all the receipts bore the name of the deceased; and that there was no evidence of any contribution by the respondent to the purchase of the suit property. In response, the respondent submitted that the only plot which the court dealt with in details with regard to ownership was the suit property which was registered in the names of the deceased (60%) and the respondent (40%). However, in cross-examination, the 1^st appellant admitted that he had no problem with the respondent getting 40% of the property.

91.We have already dealt with the issue of jurisdiction and we wish to say no more save to reiterate that the trial court had jurisdiction to hear and determine the matter that was placed before it. As regards the ownership of the suit property, it is agreed by the parties that the document of transfer was explicit that the deceased’s share was 60% while the respondent’s share therein was 40%. The 1^st appellant had no issue with the respondent’s share save that in his view, the respondent was entitled to only get 40% of the undeveloped value. We have no basis upon which we can arrive at that finding. If that was the intention of the respondent and the deceased, it would have been expressly provided in the transfer. This ground fails.

92.It was the appellants’ case that the learned Judge unreasonably awarded general damages to the respondent when no sufficient evidence was tendered to prove the same. While no submission was made in respect of this submission by the appellants, the respondent’s position was that the learned Judge did not err in awarding general damages for trespass in the sum of Kshs 1,200,000.00.

93.We find no fault on the part of the learned Judge in her finding that the appellants trespassed onto the suit property. Halsbury’s Laws of England, 4th Ed., Vol. 45 (2), (London: Butterworth’s 1403 para 526) addresses itself on the law on damages for trespass to land in the following terms:““In a claim for trespass, if the claimant proves trespass, he is entitled to recover nominal damages, even if he has not suffered any actual loss. If the trespass has caused the claimant actual damage, he is entitled to receive such an amount as will compensate him for his loss. Where the defendant has made use of the claimant’s land, the claimant is entitled to receive by way of damages such a sum as should reasonably be paid for that use Where the defendant cynically disregards the rights of the claimant in the land with the object of making a gain by his unlawful conduct, exemplary damages may be awarded if the trespass is accompanied by aggravating circumstances which do not allow an award of exemplary damages, the general damages may be increased.”

94.Clearly, the respondent was entitled to damages, although the learned Judge, rightly in our view, found that the respondent had not assisted the court in assessing the quantum of damages. The learned Judge however awarded Kshs 200,000.00 for each of the 6 years that the appellants had denied the respondent the use of his land. The learned Judge arrived at that figure based on the decision of Odero, J in Nakuru Industries Limited v S S Mehta & Sons [2016] eKLR. We were not addressed on why we should interfere with that award and have no justification for doing so.

95.The appellants faulted the learned Judge for ordering the appellants to hand over vacant possession of the suit property jointly owned with the deceased to the respondent in exclusion of other lawful dependants to the estate of the deceased. According to the appellants, being siblings and dependants of the deceased, it was wrong for the learned Judge to have directed them to hand over vacant possession of the suit property to the respondent. On the other hand, the respondent submitted that, since the appellants did not produce a grant of letters of administration to the estate of the deceased and the respondent having proved that he was a co-owner of the suit property, the learned Judge made the right decision to order the appellants to hand over vacant possession to the respondent.

96.In her judgement, the learned Judge found that, whereas the exhibited Certificate of Title No. CR xxxxx in relation to the suit property was in the names of the deceased and the respondent, the transfer dated 23^rd February 2011 indicated that the deceased and the respondent were to hold the property in undivided shares of 60% and 40% respectively. We agree with the learned Judge that one could only lay claim to the deceased’s shares in the suit property on the basis of a valid will or court order, none of which the appellants relied on. Therefore, the appellants had no right to do so by merely claiming that they were siblings to the deceased. The learned Judge correctly ordered that the appellants give vacant possession to the respondent. Since the learned Judge was not presiding over a succession cause, the appellants’ interests in the suit property, if any, in their capacity as beneficiaries of the estate of the deceased could not be competently determined by that court and the learned Judge was right in restricting herself to the respondent’s interests therein.

97.Apart from the issue of costs, the remaining grounds have either been covered in our determinations above, or were just generalised grounds upon which no submissions were made. As regards the issue of costs, the same follow the event and, the respondent having succeeded in his suit, was entitled to the same. We find no reason to interfere with the learned Judge’s decision thereon.

98.We have re-evaluated the evidence adduced and applying the legal parameters laid down, we find no basis for interfering with the decision of the learned Judge. We find no merit in this appeal which we hereby dismiss and uphold the judgement delivered on the 9^th October, 2020. We award the costs of this appeal to the respondent

99.Orders accordingly.

DATED AND DELIVERED AT MOMBASA THIS 11^TH DAY OF OCTOBER, 2024A. K. MURGOR................................JUDGE OF APPEALDR. K. I. LAIBUTA CArb, FCIArb.................................JUDGE OF APPEALG. V. ODUNGA................................JUDGE OF APPEALI certify that this is the true copy of the originalsignedDEPUTY REGISTRAR

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Date	Case	Court	Judges	Outcome	Appeal outcome
11 October 2024	Okeno & 2 others v JOSY (Civil Appeal E027 of 2020) [2024] KECA 1915 (KLR) (11 October 2024) (Judgment) This judgment	Court of Appeal	AK Murgor, GV Odunga, KI Laibuta
9 October 2020	↳ HCCC No. 2 of 2014	High Court	M Thande		Dismissed

Okeno & 2 others v JOSY (Civil Appeal E027 of 2020) [2024] KECA 1915 (KLR) (11 October 2024) (Judgment)

Okeno & 2 others v JOSY (Civil Appeal E027 of 2020) [2024] KECA 1915 (KLR) (11 October 2024) (Judgment)

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