https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12594

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **FAMILY DIVISION** **MILIMANI LAW COURTS** **SUCCESSION CAUSE No. 335a OF 2020 as CONSOLIDATED with Succession Cause No. E598 of 2020** **IN THE MATTER OF the estate of Raphael Githiga Mwai (deceased)** **RULING** 1. The deceased, **Raphael Githiga Mwai,** died on the 7th January, 2020. Jane Nduta Mwai petitioned this Court for a Grant of Probate with a Written Will dated 19th March, 2020, which named her as sole executrix. The Petitioner indicated that she is the wife of the deceased and named several dependants, among them Magdaline Ngima Mwai, whom she stated is the deceased’s former wife. 2. Magdaline Ngima Mwai (Objector) lodged an objection to the making of the Grant on 27th August, 2021. The Objector contends that the Will does not satisfy the legal requirements for its making and attestation as set out in the **Law of Succession Act**. Additionally, the Objector disputes the legitimacy of the Will on the basis that it purports to include assets not available for distribution. She classifies these as trust properties as well as those in which she has a beneficial interest that she classifies as matrimonial assets. 3. Directions were taken on the hearing and determination of the dispute concerning the validity of the Will as a preliminary issue, before addressing any other claims arising. 4. The matter proceeded through *viva voce* evidence, followed by written submissions filed by the parties. 5. The Petitioner called four witnesses. Their evidence related to the preparation and execution of the Will. **PW1** - Douglas Dumia Mundia, testified that he appended his signature to the Will of the deceased on 11th January, 2010. He stated that he signed it at the deceased’s house in the presence of two other witnesses, together with the deceased. 6. He testified that on the day he witnessed the Will, the deceased appeared okay and jovial as always. During cross-examination, the witness admitted he couldn’t recall seeing the deceased sign the document, only that he saw the document itself. He also stated that it was the deceased who handed him the document to sign. 7. **PW2,** James Gichuhi Wachira, the deceased’s business partner, testified that he witnessed the Will on **11th January, 2010** and a Codicil in **October, 2017** in the presence of the deceased. He stated that at the time, the deceased was due for neck surgery, which was successful, and he resumed work after recuperation. 8. He testified that he signed every page of the Will and was present with two other witnesses – Douglas **(PW1)** and Joe **(PW4)** at the time of execution. He further testified that, while signing the codicil, he was present with one other witness **(PW3),** Erastus Gitau. 9. **PW3,** Erastus Kirinya Gitau, testified that he signed the codicil as a witness on **4th October, 2017** at the deceased’s house. He stated that he saw the deceased sign the codicil in person. He could not ascertain whether it was the **4th or the 13th October, 2017** but concluded that he must have been present on both dates. 10. PW4, Joe Mwangi Mbuthia confirmed that he witnessed the Will on **11th January, 2010,** at the deceased’s house. He stated that when he appended his signature, it was just him and the deceased, and that he witnessed the deceased sign the Will. 11. The Objector, Magdalene Ngina Mwai, testified that the deceased was her husband, having married on 9th December, 1967. She stated that she had filed for divorce but that the matter had not been concluded at the time of his death. She stated that they had four children together and lived together until 1992, when they separated, but that the deceased continued to pay rent and support the children. 12. She confirms having seen the Will and objects to it on the claim that the property in the Will is matrimonial property. She stated that she also contests the Will as the properties willed to her children had already been sold. 13. She further contends that the Will is a forgery and that the signature appended to it appears to be a forgery. According to her, the testator lacked capacity as he had a stroke and was very sickly. 14. Parties prepared submissions, which I have duly considered. **Analysis and Determination** 1. The issue framed for determination at this juncture is whether the Will and the Codicil are valid. 2. The formal requirements of validity of a written Will are stipulated in **Section 11 of the Law of Succession Act** as below; ***“No written Will shall be valid unless-*** * 1. ***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;*** 2. ***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;*** 3. ***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 acknowledgment 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. The Will was produced in its original form and a certified copy of the original. This Court has examined the Will; page one is referenced as a Will, and it also contains the name and ID number of the deceased. On page 12, it has the signatures and the names of the three witnesses **(PW1, PW2** and **PW4).** 2. The Objector, in her oral testimony, alleges that the Will is a forgery. The burden of proving forgery lies with the person alleging it. In **Elizabeth Kamene Ndolo vs George Matata Ndolo Nairobi Court of Appeal civil appeal number 128 of 1995** it was stated that the charge of forgery or fraud is a serious one, and the standard of proof required of the alleger is higher than that required in ordinary civil cases. 3. The Will being handwritten, the most effective way of dealing with such suspicion was to subject the Will to examination by a document or handwriting examiner or expert. The Objector did not subject the Will to such testing; there is no evidence that supports her allegations. It is my finding that the Objector has not proven the allegations of forgery. 4. The Will is divided into several parts; paragraph 9 indicates as follows; **”This Will and Testament is written and delivered by me, Raphael Githiga Mwai in Nairobi, this Sunday the 10th day of January, 2010, and witnessed by ;** 1. **Joe Mwangi Mbuthia** 2. **Douglas Ndumia Munga** 3. **James Gichuhi Wachira”** 4. Below this paragraph is a signature with a date 11/1/2010 and then the names and signatures of the three witnesses. The three witnesses **PW1, PW2** and **PW4** confirm that the signatures on the Will are theirs and that they witnessed the Will on 11th January, 2010. 5. Joe’s **(PW4)** name appears first on the list of witnesses; he stated that he witnessed the deceased sign and that he too appended his signature in the presence of the deceased. 6. Regarding the other two witnesses, while they were uncertain about whether they witnessed the deceased sign, they confirmed receiving a personal invitation from the deceased to his residence on the same day as **PW4**. Further, they stated that it was the deceased who presented them with the document to sign, and each of them signed it in the presence of the deceased. 7. **PW2** in his testimony stated that at the moment he was signing the document, **PW1, PW4,** and the deceased were also present in the room. He clarified that he signed every page of the document and indeed his signature appears on all pages. ased on the testimony, I am convinced that the document confirmed by the three witnesses is indeed the same one under scrutiny, the Will. It is not fatal that they were unable to state the specific contents of the Will, as this is not a requirement under **Section 11** of the **Law of Succession Act.** Their role was to attest to the Will. This Section also states that the witnesses do not need to be present at the same time for the signing of the Will. 8. After careful examination of the Will and the submitted evidence, I am convinced that the Will was drafted by the deceased, that the signature on the Will belongs to the deceased, and that the Will was properly attested by all three witnesses. 9. The Court further concludes from the provided extract that, although the Will bears the date of 10th January, 2010, it was actually executed by the deceased on 11th January, 2010, which is the date besides his signature, and the witnessing was also on the same day. 10. I conclude that this error does not undermine the validity of the will. 11. Regarding the Codicil, **PW2** and **PW3** confirm that the signatures on the Codicil are theirs. They signed on all pages of the Codicil, and the date is indicated as the 4th October, 2017. About the error on the dates, the Codicil indicates as follows; **”This Codicil for my last wish and testament is written and delivered by me Raphael Githiga Mwai in Nairobi, this Wednesday, 13th November, 2017 and witnessed by;** 1. **Erastus Kiringa Gitau** 2. **James Wachira (Gichuhi)”** 3. The testimony of the witnesses and the document state that it was witnessed on 4th October 2017, a date that corresponds to a Wednesday according to the calendar. The 13th of the same month is a Friday. I have considered this inconsistency; I find the precision of the dates, as captured in the several pages of the Codicil and the testimony of the witnesses, to be 4th October, 2017. The day of the week was explicitly stated in the Codicil as Wednesday. This detail significantly enhances the credibility of the witnesses’ account regarding the date. Therefore, the error concerning the date of the 13th does not create any suspicious circumstances that would cast doubt on the overall validity of the Codicil. 4. Aside from the issue of form, the Court must also consider Testator’s capacity when determining the validity of the Will. 5. **Section 5** of the **Law of Succession Act** deals with capacity to make a Will, and of testation. The relevant provisions state as follows - ***‘5 (1). … any person who is sound of mind and not a minor may dispose of his free property by will …*** ***(2) …*** ***(3) Any person making or purporting to make a will shall be deemed to be of sound mind for the purpose of this section unless he is, at the time of executing the will, in such a state of mind, whether arising from mental or physical illness, drunkenness, or from any other cause, as not to know what he is doing.*** ***(4). The burden of proof that a testator was, at the time he made any will, not of sound mind, shall be upon the person who so alleges.****”* 1. The law presumes that the testator was of sound mind and the burden of proof that the testator was not of sound mind is upon the person alleging lack of capacity; in this case, the Objector. See **In re Estate of Kimetto Arap Kili (Deceased) [2023] KEHC 636.** 2. From the evidence, the Objector notably did not see the testator during that period, and there is no evidence of interaction after their separation. 3. **PW2,** his business partner, stated that the testator was scheduled for neck surgery, which turned out to be successful and that post the procedure, the testator returned to his regular activities, suggesting he was fit and mentally able. The witness’ regular interactions with the deceased lend credibility to his testimony. 4. It is pertinent to note that the deceased passed away in 2020, nearly a decade after the execution of the Will. The Will is handwritten and exhibits a comprehensive level of detail. The circumstances surrounding the neck surgery do not elicit any suspicions in the mind of the court regarding the testator’s capacity to comprehend and capture his intentions at that time. 5. Besides, there is no evidence to call into question the circumstances in which the Will and Codicil were made. The documents are handwritten, clearly articulate the specific assets, the designated beneficiaries, and the deceased’s explicit intentions. There is not a iota of suspicion created that the Court would doubt that these documents are the product of the deceased’s intentions or wishes. 6. The Objector has failed to present any substantial evidence that would cast doubt on the testator’s capacity at the time of making the Will and Codicil. 7. The Objector challenged the Will, arguing that the deceased did not fairly provide for her and the children. The allegations of omission of some beneficiaries or insufficient provision for them in the Will do not, *ipso facto,* render the Will invalid. 8. A Will cannot be invalidated merely because it did not provide for others.**(Curryian Okumu –v- Peter Okumu & 2 Others [2016]eKLR).** The Objector, or any other person, who feels aggrieved by the provision in the Will has a remedy under **Section 26** of the **Act** which provides as follows; ***“Provision for dependants not adequately provided for by Will or on intestacy -*** ***Where a person dies after the commencement of this Act, and so far as succession to his property is governed by the provisions of this Act, then on the application by or on behalf of a dependant, the court may, if it is of the opinion that the disposition of the deceased’s estate effected by his will, or by gift in contemplation of death, or the law relating to intestacy, or the combination of the will, gift and law, is not such as to make reasonable provision for that dependant, order that such reasonable provision as the court thinks fit shall be made for that dependant out of the deceased’s net estate.”*** 1. Given the earlier directions and the evidence submitted, it is evident that the parties are yet to fully canvass the issue of provision. As a result, this Court will not invoke **Section 28** of the **Law of Succession Act** in analyzing the Will at this stage. 2. In conclusion, the Court has examined the evidence concerning the validity of the Will and finds that both the Will and the accompanying Codicil are genuine and valid. The Court has determined that the Will was duly executed by the deceased and properly attested on 11th January, 2010 and the Codicil on 4th October, 2017. 3. Costs shall abide by the outcome of the cause. 4. Orders accordingly. **DATED** and **SIGNED** at **NAIROBI** on this **4TH** day of **AUGUST, 2026.** **………………………** **C. KENDAGOR** **JUDGE**