Cohabitation as Good as Marriage, Mombasa Court Rules in a Succession Dispute

A woman who cohabited with a deceased German man for over five years has won a succession case and will receive a share of his multi-million-shilling estate.

This comes after the High Court in Mombasa declared that the woman referred to as TNI in court documents is entitled to a share of the deceased’s (HO) estate despite failing to prove that she was married to him under the Kamba customary law.

In his ruling, Justice John Onyiego declared that TNI was a beneficiary under Section 3(5) of the Law of Succession Act, hence she is entitled to a share of the estate as HO’s wife.

“From the evidence on record, the deceased had indeed cohabited and presented to the general public and right-thinking men and women in society that they were living together as husband and wife,” the judge ruled.

He further determined that HO was polygamous, meaning TNI and the man’s second wife identified with the initials YO will share his estate equally. The estate includes land, household goods, and vehicles worth millions of shillings. 

Following HO’s death in 2005, YO petitioned for a grant of representation in the inheritance of his estate, listing herself and his two daughters as the only beneficiaries.

But in 2006, TNI and the man’s first wife (GO) claimed to be HO’s widows and filed an objection, saying YO did not consult them before filing the petition and that she was attempting to disinherit them. They also claimed that YO had received the HO’s pension without accounting for it.

TNI told the court that she met HO in 1999 when he visited Kenya as a tourist, adding that the man confided in her that he had divorced his first wife, GO, in 1976 and married YO in 1985, but they separated in 1999. 

She further testified that HO proposed to marry her and that they had visited her rural home in Ukambani, where she introduced him to her family as her intended husband. The two then moved back to Mombasa and started living together as husband and wife, she added.

The court also heard the deceased filed a petition to divorce YO in 2004, but he died before the divorce was finalized.

TNI denied being married to another German national and dismissed a marriage certificate produced as evidence of her marriage to the foreigner as fake. 

HO’s daughters recognized YO as the only lawful widow of the deceased, not TNI or their mother.

In his ruling, Justice Onyiego said TNI failed to prove the existence of a marriage between her and HO under Kamba customary law, saying she failed to prove whether any bride price negotiations ever took place or whether any cultural rites or rituals or formalities were performed. She also did not tell the court how much dowry was paid and in whose presence.

Nevertheless, TNI won the case based on the argument that she had cohabited with HO for over five years after he separated from his second wife.