Kenya: Photos Do Not Prove a Marriage, Court Tells Woman in Property Case

Married people cannot use photographs as evidence of their union, the High Court in Embu has ruled in a dispute pitting a woman against her stepdaughter.

The pictures can only be used to tell a story about people and their interaction, Justice Florence Muchemi said on Monday.

The case involved the distribution of Mr Njeru Njagi's estate.

It was filed by Njagi's daughter Annete Wandia against Ms Irene Waithira, who claimed to be her stepmother.

Ms Wandia said she did not know about the relationship between her father and Ms Waithira.

NOT HER STEPMOTHER

While urging the court to revoke the letters of the administration of the estate issued to Ms Waithira, she maintained that the woman is not her stepmother.

Ms Wandia added that Ms Waithira did not participate in her father's funeral arrangements and burial.

She said the circumstances surrounding the relationship between Ms Waithira and her father did not give the impression of a married couple.

Ms Wandia's uncle Isaac Mugambi told the court that his brother's known wife was Ms Wandia's mother and she had died.

He, however, added that he knew Ms Waithira.

But Ms Waithira fought back, maintaining that she was married to Njagi in a traditional ceremony though she was not aware if dowry had been paid.

She produced 13 photographs taken with Njagi in her efforts to prove that she was his wife.

BIRTHDAY PARTY PHOTOS

One of the photos was that of herself and Njagi and another was of a birthday party of her grandchild where Ms Wandia appeared to be served a cake by the child.

Ms Wandia did not explain to the court why she was at the birthday celebration.

On the claim that she did not attend Njagi's burial, Ms Waithira tabled a photograph of her laying a wreath on the grave.

Justice Muchemi dismissed Ms Waithira's use of the pictures to prove the marriage, though she said they demonstrated a deep interaction between Njagi and the respondent.

The court was told that Njagi took Ms Waithira as his companion in 1997 after his wife died a few years earlier.

By the time of his death, the two had cohabited for about five years, she said.

She added that they did not have children but Njagi adopted her daughter, named Rahab.

Justice Muchemi, however, said there was no customary marriage between the respondent and Njagi.

COHABITATION

She added that there was cohabitation "whose circumstances can be presumed to be marriage".

The judge said the parties conducted themselves in such a manner that a marriage could be presumed.

She said a long period of cohabitation may give rise to a presumption of marriage in favour of the party, as previously held by the East African Court of Appeal.

Due to the cohabitation, the court found that Ms Waithira was Njagi's wife at the time of his death and not a stranger.

She said Ms Waithira is legally entitled to apply for a grant.

The judge ordered that a fresh grant be issued in the names of Ms Waithira and Ms Wandia.

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