https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8114

In re Estate of Gitu (Deceased) (Succession Cause E016 of 2023) [2026] KEHC 8114 (KLR) (11 June 2026) (Ruling) Neutral citation: [2026] KEHC 8114 (KLR) Republic of Kenya In the High Court at Embu Succession Cause E016 of 2023 RM Mwongo, J June 11, 2026 IN THE MATTER OF THE ESTATE OF PATRICK STANLEY GITU (DECEASED) Between Ann Wanjiru Maina, Kennedy Ndifatha Maina, Zachariah Kurukwa Maina , Judy Muthoni Maina , John Gitu Maina 1st Protestor Shilla Evon Wanjiru Kamau & (Representing… Margaret Warau Maina Kamau Charles Patrick Maina Kamau) and JWW & Representing JWW (Child) PMW (Child) SKM (Child) WG (Child) 2nd Protestor and Florence Njeri Maina Petitioner Ruling Background and Application for Recall of Witness 1.The Petitioner filed a petition for probate of the Will of the deceased dated 5th September, 2018. The objectors are contesting the validity of the Will. 2.During the objection hearing of the Petitioner’s Witness No.4, the 2nd objectors’ counsel, Ms. Kangatta, applied orally for the recall of PW1, Ms. Beth Ndorongo. She sought that Ms. Ndorongo be availed for cross examination because she had not had the opportunity to cross examine and test the evidence of Ms. Ndorongo who testified that she drew the deceased’s Will. 3.Ms. Kangatta said she had been away and missed the testimony as she was unwell and co-counsel Wangira had stood in. She asserted that the parties she was now acting for were newly enjoined and were not parties at the time Ms. Ndorongo’s evidence was taken. Ms. Kangatta sought that, in the alternative to PW1 Ms. Ndorogo being recalled, PW1 can be summoned by Court and if she turns hostile she can be treated as such. 4.Mr. Njage for the Petitioner strongly opposes the application. He argued that recalling a witness who has already testified and been re-examined is a question of law that must be handled carefully. He argues that PW1 was the Petitioner’s witness, that she was called to testify in the usual manner and she attended; and was cross examined and re-examined. That the applicant’s co-counsel was present and ably represented the applicant during cross-examination. 5.According to Mr. Njage, it is too late on the day to recall the witness. That it would be prejudicial to both the witness and to the Petitioner’s case to have PW1 recalled. That the Petitioner had already paid for PW1’s expenses at the time she was called to testify and she should not be called again; that that is not a cost the petitioner should be burdened to shoulder. Further, that the witness is an advocate who is running a practice, and she enjoys certain legal privileges. 6.The only issue for determination is whether PW1 can, or should or should not, be recalled for cross examination by Ms. Kangatta. Analysis and Determination 7.The law governing recall of witnesses is found in Sec 146 (4) of the Evidence Act Cap. That provision is as follows:“The Court may in all cases permit a witness to be recalled either for further examination in chief or for further cross-examination and re-examination respectively.” [Emphasis added] 8.Whilst it is true that the law of succession constitutes a complete system of law to which the Civil Procedure Code does not substantially apply, the evidence in succession matters is gathered under the Evidence Act. I am aware of no legal inhibition to the application of the law of evidence to succession proceedings. 9.In the short time available, I have perused a number of authorities on recall of witnesses, including: Anwarali & Bros Ltd v PCEA Wageci Centre Makinga [2020] eKLR (Chepkwony J) and R v Patrick Mundia Muiru HCCRC No.722010 8848 (KLR) 1 (Wakiaga J). None of the cases relate to recall of a witness in probate proceedings. From the cases, I glean the following principle. 10.When deciding on the question whether or not to allow the recall of a witness, it is critical that the Court must take into account several matters. 11.Firstly, at what stage of the proceedings is the request for recall being made: early or late in the proponent’s proceedings or early or late in the respondent’s case or after close of parties’ cases? In this case, the petitioner and a doctor have not yet given her testimony. Thus, we are still at the mid-stage of the petitioner’s case. 12.Secondly, there is the question whether the evidence sought to be elicited by the applicant could not have been elicited earlier at the time when the witness was on the stand. In the present case I have carefully perused the record of proceedings and the file in this matter. I have seen a notice of entry of appearance by Ms. Kangatta and Rachier & Amollo advocates dated 27th October, 2023. The client is indicated as Ann Wanjiru Maina acting on her own behalf and on behalf of or as the family representative of the children of the deceased with his first wife Josephine Wagatu Maina and others. 13.According to the applicant, she thereafter became ill and the matter was handled by her co-counsel Mr. Wangira. Upon her return, she filed a Memorandum of appearance on 11th November, 2025 for two of the deceased’s dead children namely, the successors of Margaret Warau Maina (represented by Shilla Evon Wanjiru Kamau) and the successors of John Gitu Maina (represented by JWW. In the event, these parties were enjoined into the proceedings in November 2025, months after PW1 had testified in Court on 31st July, 2025. 14.Thirdly, the question must be considered as to whether the recall is intended merely to assist the party seeking to recall so as to fill in gaps and weaknesses in their case, or whether it is sought to aid the fair administration of justice. In the present case, as already stated, Ms. Kangatta and her clients filed memorandum of appearance in November, 2025, after PW1 had testified. To that extent, the application for recall cannot be said to be an expedition to fill in gaps in evidence which ought to have been filled in during PW1’s testimony, but to genuinely have a chance to test that evidence. 15.Fourthly, the court must consider the question whether the recall will unnecessarily delay the trial and thus interfere with the right to the expeditious administration of justice. In the present case, as already noted, the proceedings are at the early stage where the petitioner is seeking to prove the validity of the Will, and two witnesses in proof of her case are yet to testify. Accordingly, a recall of the first witness (PW1) for cross examination can hardly be said to be intended to unduly delay the trial. 16.Fifthly, the court must consider the question whether the recall or non - recall of PW1 will lead to prejudice to any party. I have considered this point anxiously. There is no doubt in my mind that in a case such as the present one, where the validity of a Will is being tested in Court, the evidence of the lawyer who drafted the Will is of central importance to the case. Such lawyer’s evidence can or may avail critical insights to the court. Absence of the testing of such testimony may prejudice the fair administration of justice. 17.Beyond that, however, the petitioner may be prejudiced by way of incurring additional costs of recalling the witness as pointed out by Mr. Njage. This can however be remedied by an appropriate costs order. On the other hand, the prejudice to be suffered by the applicant would be grave. The applicant’s clients were not parties to the suit where the testimony of PW1 was given. They would suffer the prejudice of not having had an opportunity to test the evidence of the drawer of the Will contested. This would be a blemish in the proceedings affecting those parties’ full rights to a fair hearing; a situation which must never be sanctioned by the Court. 18.An application for recall of a witness necessarily invokes the exercise of the court’s discretion. Such discretion must be exercised judiciously and for sufficient cause. Conclusions and Disposition 19.In my view, and balancing all parties’ rights and interests, it would be prudent to allow the recall of PW1 for cross examination by the applicant. This is essential to ensure clarification of evidence given, to ensure the fulfillment of the applicants’ right to a fair hearing, and to aid in the fair administration of justice. 20.Accordingly, I allow the application to recall PW1 for cross examination and re-examination. The costs of the Petitioner in availing the said witness shall be borne by the applicants subject to a cap of Kshs.6,000/- herein. The witness will be availed prior to close of the petitioner’s case. 21.Orders accordingly. DELIVERED, DATED AND SIGNED AT EMBU HIGH COURT THIS 11TH DAY OF JUNE, 2026............................R. MWONGOJUDGEDelivered in the presence of:1. George Kibira for Petitioner with Morris Njage2. Wangira for 1st – 4th Objectors3. No Representation for Kangatta for 2nd Objectors4. Chepkorir holding brief for Morris Njage5. Francis Munyao - Court Assistant