IN
THE HIGH COURT OF MALAWI

LILONGWE
DISTRICT REGISTRY

CIVIL
CASE NO. 687 OF 2006

BETWEEN

DOREEN
MUMBA (on her own behalf……………………………...PLAINTIFF

and
on behalf of Jerry Mumba (a minor))

-AND-

OCCUR
MUMBA……………………………………….………..1^ST
DEFENDANT

ALL
THE PERSONAL REPRESENTATIVES..……………2^ND
DEFENDANTS

OF
MR. HARDLY MUMBA (DECEASED)

CORAM: MANDA,
SENIOR DEPUTY REGISTRAR

Nankhuni
for the Plaintiff

Mussa
for the defendant

RULING

This
is the plaintiff’s application for Summary Judgment taken out under
Order 14 of the Rules of the Supreme Court. The plaintiff
was asking
the court for a determination on two issues, namely, whether the
plaintiff was a wife of the late Hardly Mumba and whether
Jerry
Chakuchanya Mumba is an issue of the said marriage. Should these
questions be determined in the positive, the plaintiff further
asked
the court to determine whether she and her son would be entitled to a
share of the late Hardly Mumba’s estate. If so, whether
the
defendants, (who are the personal representatives of the late Hardly
Mumba and have been administering the estate thus far),
should
account as to how they have been administering the said estate.

The
brief facts of this case are that the deceased, Hardly Mumba died
intestate on the 31^st
day of May 2005. At the time of his demise, the plaintiff claims that
there had been a marriage subsisting with the deceased. However,
on
his demise the plaintiffs stated that the defendants took control of
all the matrimonial property of the deceased and are in
control of
the estate to the exclusion of the plaintiff and her son Jerry. It is
therefore on this basis that the plaintiff claimed
for a fair share
of the estate. This apparently can only be determined after there has
been an account of all the monies and properties
of the estate by the
defendants in respect of the period that they have been in control of
the same and made good of any losses.

Looking
at the facts of this case, the initial observation is that whilst the
ultimate claim is for a share in the distribution
of a deceased
estate, the claim can only be successful upon the determination of
issues, which touch on points of law. In particular,
is the question
of whether there was a legitimate marriage between the plaintiff and
the deceased, be it under custom or by cohabitation
as recognized by
the Constitution. In this regard, I thought that the matter should
have been commenced by originating summons.
Of course, I did
recognize the fact that there is a factual dispute as to whether
there was a marriage and that the ultimate claim
might be monetary
and thus I thought that perhaps the action was rightly commenced by a
writ. In any case, the defence never took
issue with the matter so I
will likewise let it rest for now. Suffice to say that this poses an
interesting predicament as to the
mode of commencement of the claim,
which is worth considering at a future date.

For
purposes of this application, however, we shall proceed on the basis
that this matter was procedurally begun by writ and that
it is a
proper matter for summary judgment. The reason for stating this is
that once it is determined that there was indeed a marriage
of some
sort between the plaintiff and the deceased, then it will go without
saying that the plaintiff and her son would be entitled
to a share of
the deceased estate.

First,
let me consider the technical issues that were raised by Mr. Nankhuni
regarding the affidavit in opposition sworn by Mr.
Mussa,
representing the defendants. In that regard, I do agree with Mr.
Nankhuni’s observations that the affidavit does not state
who Smith
Mumba is and what interest he has in the matter. Of course, I should
state that much as he is not named in the suit,
the suit only
identifies the second defendants as “all
personal representatives of the late Hardly Mumba” so
my guess will be that Mr. Smith Mumba could fall in this category.
More importantly though, the affidavit was not sworn by the
defendant
and that it was never commissioned by a commissioner for oaths. On
these grounds, alone I ought to disregard the affidavit
in opposition
and enter judgment for the plaintiff. Nevertheless, I elected to
consider whether there was an arguable defence disclosed
in the
affidavit in opposition.

In
considering the affidavit in opposition, I did agree with Mr.
Nankhuni, that whilst denying that there was no marriage at custom,

in the form of a “Chinkhoswe,”
the affidavit does state that the plaintiff and the deceased were
involved in an informal relationship but that they had on divers

occasions stayed in the same house. This to me does amount to a clear
admission that there was cohabitation between the parties.
The fact
that there were letters allegedly written by the plaintiff to the
deceased does not mean that there was no relationship.
In fact
reading the letters, they do show that there was a relationship
between the parties, which had gone sour, and that the
plaintiff had
reached a point of despair, it does not mean however that there was
no marriage between the parties. Indeed, in the
letters (which were
exhibited by the defendants), the plaintiff does refer to the
deceased as her husband. Thus basing on these
observations, it is the
finding of this court that there was a legitimate marriage between
the plaintiff and the late Hardly Mumba.
Having found that a marriage
had subsisted between the plaintiff and the late Hardly Mumba, it is
also the finding of this court
that Jerry Chakuchanya Mumba is the
issue of the said marriage. There is a clear admission that was
cohabitation which evidence
of an association that could lead to
sexual intercourse and lack of association with others (See Khoza
v Mulenga 11 MLR
57). Apart from that, the affidavit in opposition does not state that
the plaintiff had other associations with other men
apart from the
deceased, prior to the time when Jerry was born. Finally there are
the Peter Pan Play School fees receipts, which
show that the late
Hardly Mumba was paying school fees for Jerry, which receipts have
not been disputed by the affidavit in opposition.
This I believe does
show, on a balance of probabilities that Jerry was the late Hardly
Mumba’s son (Kaleya
v Kwangwani
(1977), 8 MLR 293 (followed)).

Having
found that there was a marriage between the plaintiff and the late
Hardly Mumba and that Jerry is an issue of the marriage,
it goes
without saying then that the plaintiff and her son are entitled to a
fair share of the deceased’s estate. That what is
a fair share of
the estate can only be determined after the personal representatives
of the deceased should account as to how they
have so far
administered the deceased estate. I therefore order that the
defendants do give an account as to how they have so far
administered
the estate.

Overall,
I do uphold the plaintiff’s application for summary judgment in its
entirety and do accordingly pronounce judgment in
the plaintiff’s
favour. The plaintiff is also awarded costs of this action.

Made
in Chambers this……………..day of………………………………….2007

K.T.
MANDA

SENIOR
DEPUTY REGISTRAR