The woman also wanted to be given legal guardianship of the man and the management of his properties since he is suffering from a mental disorder. The man’s estranged wife died seven years ago.
However, the court has ruled that the ailing man code-named PNK had no legal capacity to be in a polygamous marriage.
In her application, the woman had urged court to find that she is the sick man’s wife by virtue of a cohabitation that happened when working for him and later a marriage in 1984 when his wife deserted him.
To support her evidence that she was married to the man, the woman code-named Ms NM tabled past photographs of herself and the man. She said the man married her in 1992 under the Kikuyu Customary Law.
But Justice Jaden Thuranira said the photographs cannot be said to reflect ‘a marriage by the stretch of any imagination’.
The photos showed a man and woman, two women and a child, two women, two men and a child and a man, a woman and a child.
On the woman’s request to become the legal guardian of the sick man, the court ruled that there was no evidence reflecting that the man, who lives in Gatundu North, Kiambu County, is currently not being taken care of.
Further evidence indicated that he is being looked after by his other son and a 24-hour caregiver. The court noted that the woman and her son live in Nairobi.
“While they state that the Respondent (the other son) has not given any details on the care given to the man, they have not shown what care they have been giving him since the year 2012 when Ms NM stated that she was evicted from the matrimonial home,” said the judge.
Ms NM testified that she was initially working as a househelp for the man and his wife who died in 2014. She said following the couple’s separation in 1984, her close relationship with the man culminated in a marriage and the birth of their son.
Following the separation, the couple later divorced and the late wife moved with her three children to the United States of America until the year 2012 when she returned to Kenya.
Upon her return to Kenya, she forcefully evicted Ms NM from the matrimonial home. The court heard that when the first wife died, she was buried at her father’s property ‘which under Kikuyu customary laws symbolised that she had divorced her husband and could not be buried at her former matrimonial home.’
Ms NM said together with her son, they are entitled to an equal say in the man’s wellbeing, properties and their interests ought to be protected. They wanted the court to order that they be included as managers to the man’s property and have equal rights over his guardianship.
However, Justice Thuranira found the man had no capacity to marry the househelp under customary law as he was already married to the first woman under the then Marriage Act.
A certificate of marriage between the man and his late wife dated December 10, 1977 was produced in court by their son.
At the time of the alleged customary marriage (1992), the court was told he was already mentally sick.
“The marriage certificate has not been disputed. Medical documents exhibited by the Respondent (the son of the first wife) indicate that he was being treated for mental disorder way back in the year 1991. This once again raises the issue of the capacity of the man to marry Ms NM,” said Justice Thuranira.
Ms NM had attached a divorce order dated August 27, 1992 indicating that the man and his deceased wife had dissolved their marriage. It reflected that the couple were no longer bound to cohabit and that the former wife was granted the custody of their three children.
But the judge said there was no evidence of any divorce court proceedings and decree. This again raised the issue of the man’s capacity to marry the househelp because it meant his marriage to the first was still subsisting when he engaged the househelp.
“Having weighed the evidence before this court, I am not persuaded to change the status of the guardianship of the man or the management of his properties,” the judge ruled.