CHARITY OPARAOCHA V WINFRIDA MURAMBIWA
(SCZ JUDGEMENT No. 15 OF 2004)
The facts of the case are as follows: The respondent was said to have been married to the late Dr. Christopher Oparaocha after the deceased approached her parents and paid bride price in 1982, and underwent a traditional ceremony of marriage in 1986; The deceased had three children with the respondent; In accordance with the testimony of the respondent, the deceased rented a house for her in Kabwata Estate and met all her needs as well as those of her children; The appellant got married to the late Dr Christopher Oparaocha on 15th july, 1971, under the Marriage Act of Kenya.
The legal issue can be drawn from whether or not the appellant’s claim would be successful under four particular grounds of appeal that she advanced in court. These grounds of appeal include: 1) that the trial judge erred in law and in fact by holding that the respondent was entitled to 10% share in the estate because she was never a dependant of the deceased and there was no proof that the deceased every paid rent for her; 2) that the trial Judge erred in law by declaring that the appellant’s appointment as Administrator of the estate was null and void ab initio as the said trial Judge had no power nor capacity to cancel such an appointment post facto; 3) that the trial Judge erred in law by declaring that the purported three children belonged to the deceased as there was no evidence before the court to show that there was a joint request by the respondent and the deceased to have the children registered as required by the law; 4) and that the trial Judge erred in law and in fact by failing to distinguish the purport of the Intestate Succession Act and that of the Local Courts Act and the Order therefore that the assets be re-assembled for fresh distribution had no basis in law.
The reasoning or rather ratio decedenti behind the judgement made by the trial judge lies on the basis of analysis made on the four grounds of appeal. In the first ground of appeal, the challenge put to task is that of the fact that the trial judge entitled the respondent to 10% of the share of the estate. The respondent testified to having been maintained by the deceased, saying that her rent was in fact being paid by the deceased. The evidence supporting this is the letter provided for by the Nigerian High Commission making it clear that respondent was in fact a dependant of the deceased. The definition of dependant was taken from the Intestate Succession Act