https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10539

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **FAMILY DIVISION** **MILIMANI LAW COURTS** **SUCCESSION CAUSE NO. E882 OF 2023** **IN THE MATTER OF THE ESTATE OF GULBANU AKBARALI NANJI *also* KNOWN AS GULBANU AKBERALI** **NANJI (DECEASED)** **SHABNAM NANJI ……………………………………… 1ST APPLICANT** **FARIDA NANJI ………………………………………… 2ND APPLICANT** **VERSUS** **FIROZ AKBARALI NANJI ……………….……………… RESPONDENT** **JUDGEMENT** 1. A Grant of Probate with Written Will was issued in this matter to **Firoz Akbarali Nanji**, appointing him the sole Executor and sole beneficiary under the deceased Will dated **18th June 1997**. 2. The deceased died on **10th March 1998** at the age of seventy-six (76) years. She was survived by three children, namely: 1. **Amirali Akbarali Nanji** (now deceased); 2. **Nasir Nanji** (now deceased); and 3. **Firoz Akbarali Nanji**. 1. On **23rd June 2023**, Firoz Akbarali Nanji petitioned this Court for a Grant of Probate with Written Will. The Petition was gazetted on **11th August 2023**, and on **13th September 2023**, the Grant of Probate was issued to him. 2. By Summons for Revocation of Grant dated **15th January 2024**, the Applicants herein are seeking the following ORDERS: 1. **Spent;** 2. **Spent;** 3. **Spent;** 4. **That this Honourable Court be pleased to issue an order compelling the Respondent, in his capacity as the Administrator of the estate of the deceased, to render true account of the estate of the deceased from the time of commencement of the Administration to date;** 5. **That the will dated 18th June 1997 be revoked;** 6. **That the Grant of Letters of Probate issued to the Respondent on 13th September 2023 be revoked;** 7. **That costs of this application be provided for.** 3. The 2nd Applicant is the widow of the late **Amirali Akbarali Nanji.** Together they were blessed with three issues namely; Saed Nanji, Alizel Nanji and Shabman Nanji, the 1st Applicant herein and beneficiaries of the Estate of the Gulbanu Akbarali Nanji (deceased) herein. 4. The Applicants contend that, as the widow and daughter of the late Amirali Akbarali Nanji, they are entitled to pursue these proceedings on behalf of his estate and assert an interest in the estate of the late **Gulbanu Akbarali Nanji (deceased)** through him. 5. The matter proceeded by way of viva voce evidence as hereunder. **THE 1ST OBJECTOR** 1. The 1st Objector testified that the deceased was her grandmother and that she died on 10th March 1998. She adopted her Objection to the Making of Grant dated 9th December 2024 as part of her evidence. 2. On **examination in chief**, she testified that her father, **Amirali Akbarali Nanji (deceased)**, who was a brother of the Respondent, died on **13th May 2017**. She further testified that her late father left a written Will in which she, her sister the 2nd Applicant and their mother, the 1st Applicant herein, were appointed as Executors. 3. On **Cross examination,** she testified that her late father's Will made no reference to the estate of the deceased herein. She further added that her father did not raise any objection to the deceased's Will dated 18th June 1997 during his lifetime. 4. **Upon re-examination**, she testified that she was unaware whether her late father had knowledge of the deceased's Will during his lifetime. She further added that she did not know whether her late father had ever petitioned for a grant of representation in respect of the deceased's estate. 5. With regard to the deceased's capacity to execute the Will, during **examination in chief** she testified that the deceased was diagnosed with renal cell carcinoma acute disease of the liver and kidney and was under heavy medication at the time she is alleged to have signed the Will dated 18th June 1997. 6. On **cross-examination** she testified that she had not produced any medical report to demonstrate that the deceased was suffering from any illness at the time she executed the Will. Upon **re-examination**, she stated that paragraph 6 of her objection to making of a grant dated 9th December 2024 was not denied. **THE 2ND OBJECTOR** 1. The 2nd Objector adopted her affidavit dated **15th January 2024**, as her evidence-in-chief. It was her testimony that she was unaware that the Respondent had petitioned for a Grant of Probate and only became aware of the proceedings upon publication of the Kenya Gazette Notice. 2. She further testified that she had previously cited the Respondent to petition for a grant in respect of the deceased's estate. According to her, the citation was prompted by proceedings in **HCCC No. 213 of 2019**, in which **EXOBI LIMITED** sought to transfer shares to the Respondent despite there being no grant of representation in respect of the deceased's estate. Upon re-examination, she clarified that the citation proceedings were **HCFP&A Citation Cause No. E1296 of 2022**. 3. The 2nd Objector further testified that her late father's Will was handwritten and did not include all of his assets. It was also her testimony that the deceased could not have intended to bequeath her entire estate to the Respondent, as she had other children with whom she enjoyed a good relationship, together with their respective families. She maintained that, in those circumstances, it was unlikely that the deceased intended to exclude the rest of her family from benefiting under the Will. 4. Additionally, the 2nd Objector testified that the bequest of the deceased's entire estate to the Respondent was inconsistent with the principles of the Islamic faith professed by the deceased. She further testified that the deceased's late husband had executed a written Will appointing all three of his sons as Executors of his estate. According to the 2nd Objector, the deceased would not have executed a Will that departed from the wishes expressed by her late husband. **THE PETITIONER (PW1)** 1. **PW1** testified orally and adopted his two Replying Affidavits, both sworn on **12th February 2024** as part of his evidence before this Court. During **cross-examination**, PW1 confirmed that he did not notify the deceased's other children or the family of his late brother, **Amirali Akbarali Nanji (deceased)**, of the Petition for Grant of Probate. He acknowledged that his late brother was survived by a widow and children, all of whom are still alive, and admitted that they were not disclosed in the petition. 2. Upon **re-examination**, PW1 denied having obtained the Grant of Probate clandestinely and maintained that his petition was founded on the deceased's valid Will dated **18th June 1997**, under which he was appointed the sole Executor and sole beneficiary. 3. PW1 further testified that he had worked with his late brother, **Amirali Akbarali Nanji**, for approximately forty-seven (47) years. He explained that the delay of approximately twenty-five (25) years in petitioning for the Grant of Probate was occasioned by his work commitments. It was his testimony that he had been managing the deceased's estate throughout that period without any objection from the Objectors or any other member of the family. 4. He accordingly urged the Court to dismiss the Summons for Revocation of Grant. **ISSUES FOR DETERMINATION** 1. I have considered the application, the affidavits, the oral evidence, the submissions, and the authorities relied on. To my mind the main issue arising in this matter is the capacity of the deceased to make the Will or put differently, the validity of the Will. The Summons for revocation revolves around that one issue. The Applicants want the Grant revoked because they claim that the Will is invalid, null and void for lack of capacity of the deceased to make it. **ANALYSIS AND DETERMINATION** 1. Revocation of a grant is governed by **section 76 of the Law of Succession Act** which provides as follows: **“76. Revocation or annulment of grant** ***A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion—*** 1. ***that the proceedings to obtain the grant were*** ***defective in substance;*** 1. ***that the grant was obtained fraudulently by the*** ***making of a false statement or by the concealment from the court of something material to the case;*** 1. ***that the grant was obtained by means of an untrue*** ***allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently;*** 1. ***that the person to whom the grant was made has*** ***failed, after due notice and without reasonable cause either—*** 1. ***to apply for confirmation of the grant within one*** 2. ***year from the date thereof, or such longer period as the court order or allow; or*** 3. ***to proceed diligently with the administration of the estate; or*** 4. ***to produce to the court, within the time*** 5. ***prescribed, any such inventory or account of*** ***administration as is required by the provisions of paragraphs (e) and (g) of section 83 or has produced any such inventory or account which is false in any material particular; or*** 1. ***that the grant has become useless and inoperative through subsequent*** ***circumstances.”*** 1. It is upon the Applicants in the Summons for Revocation to prove that the proceedings to obtain the grant were defective in substance, or that the grant was obtained fraudulently by making false statement or by the concealment from the court of something material to the case, or that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant or that the Executors failed to apply for confirmation of the grant within the reasonable time as may be allocated or failed to proceed diligently with the administration of the estate or to produce to the court any inventory or accounts of administration as is required or that the grant has become useless and inoperative through subsequent circumstances. 2. The validity of a Will or otherwise is well explained under Section 11 of the Succession Act which states as follows: ***“No written Will shall be valid unless—*** ***(a) the testator has signed or affixed his mark to the Will, or it has been signed by some other person in the presence and by the direction of the testator;*** ***(b) the signature or mark of the testator, or the signature of the person signing for him, is so placed that it shall appear that it was intended thereby to give effect to the writing as a Will;*** ***(c) the Will is attested by two or more competent witnesses, each of whom must have seen the testator sign or affix his mark to the will, or have seen some other person sign the will, in the presence and by the direction of the testator, or have received from the testator a personal acknowledgement of his signature or mark, or of the signature of that other person; and each of the witnesses must sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.”*** 1. It is trite law that every person has testamentary freedom to make a will as shown above. It follows that in a case like this where the will is contested the Objectors must prove that the deceased did not have the capacity to make the said Will. 2. I have gone through the pleadings on board as well as the oral testimony by the Objectors. Save to state that the deceased had renal ailment and liver disease there was no medical evidence produced of the deceased suffering from any sickness which might have incapacitated her from making the Will. 3. I have not been shown any medical evidence suggesting that she suffered any renal ailment and that she was heavy on medication. There was no medical witness called to support this line of evidence. 4. Neither did the Objectors demonstrate any medical condition which might have caused the decease not to make the impugned Will. 5. Additionally, they did not call the two witnesses to challenge them on their presence when the deceased was executing the Will. 6. In the premises I do not find any reason to revoke the said will or at all. The argument of why the Petitioner took many years to file this cause was well articulated by the Respondent. In any event if there was no urgency then there was no reason to file for probate. 7. What I find curious is the fact that the Objectors father worked with the Respondent, his brother, for many years with full knowledge of the death of their mother who I guess he knew that she had left behind a big estate. If indeed their father was serious, he ought to have challenged her mother’s estate while alive. 8. Further the Objector’s father’s Will does not mention at all her mother’s estate or any right which might be derived from her mother’s estate. In so many words I presume that he knew that he had no right over her estate. 9. In the premises and based on what I have stated above I do not find merit in the application for revocation. There are therefore no reasons to demand accounts from the Respondent as the Objectors have no right over the estate. 10. Since the deceased had testamentary freedom, and since she exercised it in favour of one of her sons leaving the other two, and since the will was properly drawn and met all the parameters of a valid will, I find the objection herein of unmeritorious. 11. As to the Objectors’ suspicion, I find it too remote considering what I have stated above. Same goes with the argument that he treated the three sons equally and therefore there was every possibility that she will provide for the rest of the two. That suspicion or equal love does not take away the testamentary freedom of a testator. She had all the freedom to will her estate to whomsoever she wished. 12. **The objection proceedings are hereby disallowed with no order as to costs.** 13. **The grant issued on 13th September 2023 to Firoz Akbarali Nanji is valid for all intent and purposes.** **Dated signed and delivered via video link at Nairobi this 16th day of July 2026.** **H K CHEMITEI.** **JUDGE, FCIArb**