In re Estate of Aaron Musau Makau (Deceased) (Succession Cause 792 of 2010) [2025] KEHC 18155 (KLR) (27 November 2025) (Ruling)
Neutral citation:
[2025] KEHC 18155 (KLR)
Republic of Kenya
Succession Cause 792 of 2010
EN Maina, J
November 27, 2025
Between
Ndunge Kieti Ndutu
1st Applicant
Winfred Mbinya Musau
2nd Applicant
Caro Mutheu Musau
3rd Applicant
and
Priscilla Nzula Musau
Respondent
Ruling
1.Pursuant to Summons dated 8th April 2019, the Applicant sought orders for the court to appoint Ndunge Kieti Ndutu and Caro M Musau as the administrators of the Estate of the late Aaron Musau Makau to represent the 2nd household and Priscilla Nzula Musau to represent the 1st house, that a temporary order be issued restraining the Petitioner Priscilla Nzula from interfering with peaceful occupation and use of the applicants matrimonial home in LR No. Makueni/Kyuu/832 pending the hearing and determination of this application and the succession matter and that the cost of the application be in the cost.
2.The application was supported by the affidavit of Ndunge Kieti Ndutu sworn on 8th April 2019 where she deposes that grant of letters of administration made on 24th August 2011 and certificate of confirmation of grant made on 25th February 2015 was annulled and revoked and thus there was need for this court to appoint an administrator.
3.She deposed that before the demise of the deceased she resided with the deceased in LR No. Makueni/ Kyuu/832 where she resides to date yet the applicant has been trying to evict her and thus there was need to this court’s intervention to restrain the petitioner from interfering with her peaceful occupation of the property.
4.The application was opposed through the replying affidavit of Priscillah Nzula sworn on the 8th October 2019 where she deposed that she was the sole wife of the deceased blessed with nine children. That the revocation of the grant was heard without her participation as her advocate failed to attend court to protect her interest. She deposed that Ndunge Kieti was not married to the deceased as she was married to one Mulinge Nthenge(deceased with whom they sired two children and that according to the Akamba customs no woman can be married to two families.
5.She further deposed that no dowry was paid by the deceased to indicate his marriage to Ndunge yet her marriage to Mulinge was still valid as no dowry had been returned.
Hearing
6.PW1 the applicant Ndunge Kieti Ndutu testified that the deceased herein was her husband. He had two wives, the petitioner being her co wife had left her out in the succession cause. She stated that she got married to the deceased in 2001 and was blessed with two children Winfred and Caro. The marriage was through Kamba customary law. Goats were taken to her parents. They used to reside at the deceased’s shop at Ngungu Market but the deceased later built a house for her on LR No. Makueni/Kyuu/832 where she resides to date. She stated that the deceased took elders to her parents home to ask for her hand in marriage and that she was present during the burial of the deceased. She stated that she wanted to be a co-administrator in the estate of the deceased.
7.In cross examination she initially stated that she was married in the year 2001 and her daughters were sired by the deceased, one in 1982 and the other in 1987. She denied that she was married to another man before the deceased. She also denied that her daughters were the children of Mulinge. She then stated that she sired the children at her parents home and although they were not sired by the deceased he accepted them as his own. She contended that it was not necessary for the first wife to sanction the marriage of the second wife. She stated that the petitioner did not participate in her dowry negotiations. She denied that she forcefully occupied a house belonging to the petitioner’s son and insisted that the deceased built her a home.
8.PW2 David Muindi Makau testified that the deceased was his younger brother. He relied on his affidavit dated 13th November 2019. He testified that the applicant was married by the deceased long ago. One of the children of the applicant was born at the applicant’s home and the other at the deceased home. He stated that he was among those who took dowry to the applicant’s home and did not know if she was married to Mulinge Nthenge.
9.PW3 Somba Mululu testified that the deceased had two wives Ndunge Musau and Priscilla Musau. Each wife had their respective home and land. He was present during the dowry ceremony which involved slaughtering of one goat. The applicant and her children were taken care of by the deceased and the deceased even received one of deceased daughter’s dowry.
10.In cross examination he told the court that the applicant came with her daughters when she got married to the deceased. He was present during the dowry ceremony that took place in August 2009. He stated that he was not aware if the applicant was married to Mulinge or whether he paid dowry to the applicant’s parents.
11.PW4 Kieti Ndutu Mutua testified that she was the mother of the applicant and the deceased paid dowry for her daughter’s hand. He brought 3 goats in which one was slaughtered. The deceased later brought 4 goats and three thousand shillings. Her daughter had 2 children out of wedlock and the deceased took them in as his. He also built her a home is a separate land from the first wife. She denied knowing nor receiving dowry from Nthenge.
12.In cross examination she stated that she did not know Nthenge and her daughter was not married to him and that it was not possible in the Kamba customs for a woman’s parents to receive dowry twice from two men. She also stated that the 1st wife did not participate in the dowry ceremony for her daughter.
13.On the Petitioner’s side PW1 Priscillah Nzula Musau testified that she was the only wife to the deceased and the applicant was their employee in the year 2001 and her children were not sired by the deceased as she came with them when they were already grown. She stated that there was no marriage ceremony as she was not involved. That the applicant was married to one Mulinge Nthenge who is deceased. She established that Mulinge paid dowry but could not confirm if her dowry was returned in order for her to be married by her husband. She also stated that there was no house erected for her and the structure she is referring to belongs to her son. She maintained that the applicant was not married to the deceased and should not benefit from the estate.
14.In cross examination she stated that she was aware that the grant had been revoked and the titles reverted back to the name of the deceased. She maintained that there was no way the objector was married to two men.
15.PW2 Susan Nduku Nthenge testified that Ndunge was married to her brother Mulinge Nthenge and dowry was paid in 1991 and they were blessed with the two daughters Winfred and Caro. She stated that one lady cannot be married to two homes.
16.In cross examination she told the court that she did not have a birth certificate or death certificate of his brother but the area chief could confirm that Nthenge was her brother. She did not have any evidence to show that the applicant was married to her brother.
17.PW3 Athanus Mutua Nzioka testified that Ndunge Kieti was the wife of Mulinge Nthenge and not Musau and her children did not belong to the deceased. He testified that Ndunge’s children went to Kinywee Primary School under the name of Mulinge Nthenge.
18.In cross examination he stated that Mulinge was his cousin as their fathers were biological brothers. Mulinge took 3 goats to the applicant’s home. He denied that the applicant was married to the deceased and that there was a dowry ceremony. That she was also not given a title deed.
19.The matter was canvassed by written submissions.
Submissions
20.Relying on Section 66 of the Law of Succession Act and the case of Re Estate of Kenneth Njagi Josiah (deceased)[2021] Counsel for the Applicant submitted that she was a wife of the deceased and thus deserved to be appointed as a co administrator in the estate of the deceased. Reliance was also placed on the case of Re estate of Joseph Muoki Ndivo(deceased) [2019], Esther Mbatha Ngumbi v Mbithi Muloli & 2 others (1997) eKLR. Counsel for the Applicant contended that there was no valid reason why she and her children cannot be appointed as co administrators as they were dependants. Drawing from the case of re Estate of Gideon Kibitok Tarus (deceased) [2021] eKLR Counsel urged this court to issue an injunction restraining the petitioner from interfering with the use of the applicant’s matrimonial home.
21.For the Respondent it was submitted that the applicant had not proved there was a marriage between her and the deceased. Counsel relied on the case of Stephen Kimuyu Ngeki(1998), Njoki vs Mathara (1989) and Hortensiah Wanjiku Yawe vs the Public Trustee. Counsel asserted that the 2nd and 3rd objectors did not provide any credible proof to establish that the deceased was their father. Further that the applicants did not discharge their burden of proving the existence of a customary marriage between the applicant and the deceased as well as to prove that the objectors were children of the deceased entitled to his estate. The summons should be dismissed
Determination/Analysis
22.I have considered the Summons for confirmation of grant, the affidavit of protest and the respective affidavits, the rival submissions, the cases cited and the law. The issues for determination are; whether the 1st objector was a wife of the deceased and secondly whether she is entitled to be a co administrator with the Respondent.
23.On whether there was a marriage between the Protestor and the deceased it was held by the Court of Appeal in the case of Hortensiah Wanjiku Yawe vs The public Trustee the Court of Appeal Civil Appeal 13 of 1976 that the onus of proving a customary law marriage is generally on the party who claims it; that the standard of proof is on a balance of probability and that the formalities required for a customary marriage must be proved to that standard.
24.I have looked at several cases where witnesses gave evidence on the issue of marriage under Kamba customary law. I will sample a few.
25.In Andrew Manunzyu Musyoka (deceased) [2005] eKLR, Steven Mututu Mutisya (DW2) testified as an expert on Kamba customary law and stated that a marriage is contracted when goats of “Ntheo” are paid to the girl’s parents and that even if dowry is not paid “Ntheo” has to be paid and it seals a marriage.
26.It is therefore clear that for there to be a Kamba customary marriage, the man must take goats to the woman’s father and “mbui sya ntheo” must be slaughtered. The latter is what seals and differentiates a marriage from any other relationship.
27.In this case the applicant testified that she got married to the deceased in 2001 and was blessed with two children, Winfred and Caro. The marriage was through Kamba customary law. A goat ‘Ntheo’ was given to her parents. They used to reside at his shop at Ngungu Market and the deceased later built for her a house on LR No. Makueni/Kyuu/832 where she resides to date. She disputed that she entered into that land forcibly. Her evidence was supported by PW3 Somba Mululu who testified that the deceased had two wives Ndunge Musau and Priscilla Musau. Each wife had their home and land. He was present during the dowry ceremony which involved slaughtering of one goat. It was also supported by her father Kieti Ndutu Mutua, who testified that the deceased paid dowry for his daughter. That the deceased took 3 goats to him and one was slaughtered as “ntheo”. The deceased later brought 4 goats and three thousand shillings.
28.The Respondent disputed for reason the marriage that the applicant was married to another man, one Mulinge Nthenge, and the fact that she, herself did not participate in the dowry ceremony of the applicant. Being that the burden of proof is on the applicant to prove her marriage to the deceased, this court is satisfied from her testimony and that of her witnesses that indeed she was married to the deceased. Where a party claims to have gone through a customary marriage, it is up to the court to look at the evidence tendered and decide whether it meets the threshold of the customs of a particular community. My analysis of the evidence on record shows that the essentials of a valid Kamba customary marriage were proved on a balance of probabilities. It was proved that “ntheo” had been paid to the Objector’s father which is what according to Kamba customs seals a marriage.
29.On the issue of whether the children of the protestor were children of the deceased, it is clear that she begot them way long before her marriage to the deceased. However, the deceased appears to have accepted them as his own as provided in Section 3(2) of the Law of Succession Act references in this Act to ‘child’ or ‘children’ shall include a child conceived but not yet born (as long as the child is born alive) and, in relation to a female person, a child born to her out of wedlock, and, in relation to a male person, a child whom he has expressly recognized or in fact accepted as a child of his own or for whom he has voluntarily assumed permanent responsibility.’
30.On the issue of whether the protestor can be appointed as an administrator of the estate, Section 66 of the Law of Succession Act provides as follows:
31.Having found that the 1st objector was a customary wife of the deceased, she qualifies by virtue of Section 66 to be a co administrator in the estate of the deceased.
32.On whether the Respondent Priscilla Nzula, should be restrained from interfering with the peaceful occupation and use of the objector’s matrimonial home in LR. No. Makueni/Kyuu/832 pending the hearing and determination of this application, it is clear from the evidence that the 1st objector and the petitioner had their separate homes. The 1st objector produced photographs showing her home where she stated that she still resides to date. The petitioner ought not to interfere with the Objector’s peaceful occupation and a restraining order shall therefore issue.
Disposition
33.In the end, I grant as follows;a.That Ndunge Kieti Ndutu and Priscilla Nzula Musau are hereby appointed as joint administrators of the Estate of the Aaron Musau deceased.b.An injunction is hereby issued restraining the Petitioner Priscilla Nzula, her agents and or Servants from interfering with peaceful occupation and use of her home on LR. No Makueni/Kyuu/832 pending the hearing and determination of this cause.c.Each party to bear their own costs.Orders accordingly.
RULING SIGNED, DATED AND DELIVERED VIRTUALLY THIS 27TH NOVEMBER, 2025.E. N. MAINAJUDGEIn The Presence Of:Mr. Kimeu for ApplicantsMr. Mwongela for PetitionerGeoffrey – Court Assistant/Interpreter