https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8924

In re Estate of the Late Mbugua (Deceased) (Succession Cause E036 of 2025) [2026] KEHC 8924 (KLR) (23 June 2026) (Ruling) Neutral citation: [2026] KEHC 8924 (KLR) Republic of Kenya In the High Court at Nakuru Succession Cause E036 of 2025 SM Mohochi, J June 23, 2026 IN THE MATTER OF THE ESTATE OF THE LATE FRANCIS MACHARIA MBUGUA (DECEASED) Between Scholastica Wangu Macharia 1st Petitioner Alex Njuguna 2nd Petitioner Ruth Wanjiku Macharia 3rd Petitioner and Margaret Muthoni Macharia 1st Objector Peter Mbugua Macharia 2nd Objector Paul Mungai Macharia 3rd Objector Esther Wairimu Macharia 4th Objector Ruling 1.This is a probate of a written will; the deceased died on 24th December 2024 aged seventy-three (73) years old leaving behind the following dependents;i.Scholastica Wangu Macharia – Widow and 1st Petitioner.ii.Esther Wairimu- Daughter and the 4th Objector.iii.Ruth Wanjiku – Daughter and 3rd Petitioneriv.Peter Mbugua – Son and 2nd Objectorv.Alex Njuguna – Sonvi.Lucy Waithera – Daughtervii.Sarah Njeri – Daughterviii.Winnie Wairimu - Daughterix.Paul Mungai – Son and 3rd Objectorx.Antony – Mbugua - Son 2.Before me are two Applications the 1st one by the Objectors/Respondents is dated 9th May 2925 and the 2nd one by the executors is dated 11th November 2025. 3.The 2nd Application was held in abeyance to await determination of the 1st Application. 4.The 1st Application filed pursuant to Rules 59 (5) and 73 of the Probate and Administration Rules, Section 47 of the Law of Succession Act (Cap 160) Laws of Kenya, Article 159 (2) (d) of the Constitution, 2010 seeking the following relief(s);a.That the Honourable Court be pleased to authorize and/or direct the Document Examiner with the Criminal Investigations Department to examine the signature on the purported Will of the deceased herein dated 3rd October, 2019 and compare the same with other known official documents of the said deceased and file a report on the same in this Honourable Court.b.That the Honourable Court be pleased to nullify the said purported Will and order that the estate hereof be administered in accordance with the rules governing intestate succession.c.That the Honourable Court be pleased to bar the firm of N. IKUA & COMPANY ADVOCATES from representing the Petitioners/Respondents herein or any other party.d.That the Honourable Court be pleased to order the inclusion of Eleven (11) Motor Vehicles in the list of the properties comprising the estate of the deceased herein.e.That the Honourable Court be pleased to order the Petitioners/Respondents to account for the rental income collected in relation to Land Parcels Number NAKURU MUNICIPALITY BLOCK 10/42 and NAKURU MUNICIPALITY BLOCK 16/135 and to henceforth deposit the same to this Honourable Court pending the hearing and determination of the main petition.f.That the Honourable Court be pleased to transfer this cause to the High Court at Nyandarua for the hearing and disposal of the same.g.That the costs of this application be provided for. 5.The Application is supported by an evenly Sworn affidavit by the Objectors/Applicants and is based on the following five (5) grounds: -I.That, the firm of N. IKUA & COMPANY ADVOCATES is the one that drew up the purported Will and are therefore witnesses in the matter and hence they should be disqualified from representing the Petitioners/Respondents or any other party.II.That, the value of the estate remains unknown as the purported Will does not name specific properties up for inheritance.III.That, the signature purportedly appended to the purported Will by the deceased is a forgery.IV.That, the deceased herein owned at least Eleven (11) known Motor Vehicles some of which were registered under his construction company which Motor Vehicles were deliberately excluded by the Petitioners/Respondents while commencing these proceedings.V.That, the Petitioners/Respondents deliberately omitted the 1st Objector/Applicant herein from the list of dependants of the deceased yet she was the first wife of the said deceased. 6.In their joint Sworn Affidavit evenly dated the Objectors/Applicants depone as follows;i.That, they challenge the deceased Will on the following grounds;a.Luke Ngethe and Muthui Stephen Karanja-who appear as witnesses-discouraged and resisted my attempts to have a post-mortem examination conducted to ascertain the cause of the deceased herein death yet all the family members wanted one. The said family members were unaware that the said two witnesses were signatories to the purported will and were moreover in-charge of the burial committee.b.Luke Ngethe (Chairman of the burial committee), Muthui Stephen Karanja (official of the burial committee) and Peter Ngugi Kambo (official of the burial committee) did not honour the purported will contrary to Item No. 11 thereof to the effect that the will ought to have been read before the burial to all the Beneficiaries.c.Item No. 5 is also challenged because the value of the properties is not disclosed nor the said properties sufficiently described.d.Mr. N. Ikua Advocate should disclose the identity of the person who had visited his office enquiring about the purported will in the absence of the other beneficiaries.e.The said Advocate is also faulted for not reading the contents of the purported will before the burial of the deceased.f.The deceased's signature in the purported will appears to be different when compared to other known signatures of the deceased.g.It is alleged at Item No. 7 that the deceased and I had separated seventeen years ago yet there is sufficient evidence to the contrary.h.I am uncomfortable with the manner in which the purported will was sealed yet it was supposed to be treated as a confidential document.ii.A Court order should be issued barring access to the deceased's properties such as his Bank Accounts, rental properties, vehicles and machinery till the issue of distribution is determined.iii.That, the purported Will does not include at least Eleven (11) Motor Vehicles that the deceased herein owned some of which are registered under his construction companies namely Seaman Building and Civil Engineering Limited.iv.That, the purported Will should therefore be nullified and an Order issued that the estate be administered in accordance with the rules governing intestate succession.v.That, the deceased herein also owned two (2) properties known as NAKURU MUNICIPALITY BLOCK 10/42 and NAKURU MUNICIPALITY BLOCK 16/135 in respect of which the Petitioners/Respondents have been collecting rent to the exclusion of the Objectors/Applicants.vi.That, the Petitioners/Respondents should be ordered by this Honourable Court to account for the said rental income and to henceforth deposit the rental income collected from tenants of the said properties in this Honourable Court.vii.That, to enable this Honourable Court determine the real issues in controversy it is necessary that the signature allegedly appended by the deceased herein to the purported Will be forwarded to the Document Examiner together with other known official documents of the deceased for comparison and a Report thereof filed in this Honourable Court without undue delay.viii.That, the firm of N. IKUA & COMPANY ADVOCATES is the one that drew up the purported Will and are therefore witnesses in the matter and should therefore be disqualified from representing the Petitioners/Respondents or any other party.ix.That, the 2nd Petitioner ALEX NJUGUNA-is not a biological son of the deceased.x.That, to obtain a personal favour the said ALEX NJUGUNA falsely claimed that he was a biological son of the deceased herein by the 1 Objector/Applicant herein without the latter's knowledge or consent.xi.That, to save the said ALEX NJUGUNA from trouble with the authorities he and the deceased herein swore affidavits before N. IKUA ADVOCATE on 3rd October, 2023 and 20th September, 2023 respectively.xii.That, the Petitioners/Respondents should also be made to account for the Motor Vehicles aforesaid and deposit the log books in respect of the said Motor Vehicles to this Honourable Court before further orders are made.xiii.That, they would like to have this cause transferred to the Nyandarua High Court for hearing and disposal because the deceased mostly resided at Nyandarua County where he was born and brought up and also owned properties. 7.The Applicants/Objectors did not file written submissions despite the opportunity granted by the Court. The Respondent/Petitioners case 8.On the solo issue as to whether the Application is of merit, that the subject Application lacks merit, is premature and a gross abuse of the Court process. 9.A prima facie examination of the said Application reveals that the import and purpose of the subject Application is the derailment of the succession proceedings herein and the only recourse that best recommends itself to this Honorable Court is the dismissal of the same with costs in order to pave way for the onward probation of the deceased's Will. Said Application is not only pre-mature and misconceived, but the same also constitutes a quintessential case of abuse of the due process of the Court. The Objectors/Applicants are putting the cart before horse by seeking the nullification of the Will before the same is propounded by this Honorable Court at which stage they are allowed by law to give evidence respecting its purported invalidity. 10.It is the submission of the Petitioners/Respondents that the subject Will obeys all the pre-requisites of validity as espoused by law. Said Will is regular on the face of it with an attestation clause and signatures of attesting witnesses and the signatures of the testator. There is therefore a rebuttable presumption of due execution. Testamentary Freedom 11.A comprehensive exegesis into the preconditions of a valid Will commences from the substance of Section 5 of the Law of Succession Act Cap 160 Laws of Kenya that provides for testamentary freedom. The said Section provides thus:Persons capable of making wills and freedom of testation;(1)Subject to the provisions of this Part and Part III, every person who is of sound mind and not a minor may dispose of all or any of his free property by will, and may thereby make any disposition by reference to any secular or religious law that he chooses.(2)A female person, whether married or unmarried, has the same capacity to make a will as does a male person.(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 (Emphasis Ours). 12.That, Courts of law have reiterated the pertinence of testamentary freedom in the making of Wills by testators. The law upholds testamentary freedom as a fundamental principle, empowering testators to distribute their property according to their wishes. In Elizabeth Kamene Ndolo v George Matata Ndolo [1996] KECA 209 (KLR), the Honorable Court stated as follows regarding testamentary freedom:“This Court must, however, recognize and accept the position that under the provisions of sections 5 of the Act, every adult Kenya has an unfettered testamentary freedom to dispose of his or her property by will in any manner he or she sees fit." (Emphasis Ours). 13.That, it is the submission of the Petitioners/Respondents that the deceased had the requisite capacity to make the Will as he was not suffering from any mental impairment at the time of making the same. In the premises, he chose to exercise his testamentary freedom vide the dictates of the Will as provided for and it is paramount that this Honorable Court honors the said dictates and prevents any attempt to subvert the wishes of the deceased. 14.The position of the law in so far as any allegation relating to the unsoundness of mind of a testator are clear. As stated in Elizabeth Kamene Ndolo (Supra), any individual that wishes to challenge the mental capacity of a testator at the time of making the Will is required to lead evidence probative of such unsoundness. The Objectors/Applicants have not led any evidence in this respect. On Attestation and Form 15.That, the requirements relating to the requisite aspects of attestation and form are espoused in the twin provisions of Sections 8, 9 and 1 of the Law of Succession Act. The same provide as follows:On Form of willsA will may be made either orally or in writing.Oral wills(1)No oral will shall be valid unless-(a)it is made before two or more competent witnesses; and(b)the testator dies within a period of three months from the date of making the will:Provided that an oral will made by a member of the armed forces or merchant marine during a period of active service shall be valid if the testator dies during the same period of active service notwithstanding the fact that he died more than three months after the date of making the will.(2)No oral will shall be valid if, and so far as, it is contrary to any written will which the testator has made, whether before or after the date of the oral will, and which has not been revoked as provided by Sections 18 and 19.11.Written willsNo 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. (Emphasis Ours). 16.That the present case, the deceased's Will meets all the requisite preconditions of validity as the same is duly signed by the testator and attested by three (3) competent witnesses. 17.There is no reason to justify nullification of a Will that satisfies all the hallmarks of validity as doing so only serves to subvert the wishes of the deceased person. i) Unproven Claims of Forgery 18.That while the Objectors/Applicants aver that the deceased's Will was obtained through forgery and that the same ought to be nullified, the former have not tendered any cogent documentary evidence to prove fraud and this ground is unmerited. 19.Reference is made to the case of Christopher Ndaru Kagina vs. Esther Mbandi Kagina & Another [2016] eKLR where the Court observed as follows regarding claims related to forgery and/or fraud:“It is trite law that he who alleges fraud must prove fraud. Allegations of fraud must strictly be proved, Great care needs to be taken in pleading allegations of fraud or dishonesty. In particular, the pleader needs to be sure that there is sufficient evidence to justify the allegations.” 20.Further reference is made to the case of the Case Central Bank of Kenya Ltd -Vs- Trust Bank Ltd & 4 Others [2006] where the Court of Appeal in considering the standard of proof required where fraud is alleged stated that:“Fraud and conspiracy to defraud are very serious allegations. The onus of prima facie proof is much heavier on the person alleging than in an ordinary Civil Case. The burden of proof lies on the applicant in establishing the fraud that he alleges. In Belmont Finance Corporation Ltd. v. Williams Furniture Ltd [27] Buckley L.J. said: "An allegation of dishonesty must be pleaded clearly and with particularity. That is laid down by the rules and it is a well-recognized rule of practice. This does not import that the word 'fraud' or the word 'dishonesty' must be necessarily used. The facts alleged may sufficiently demonstrate that dishonesty is allegedly involved, but where the facts are complicated this may not be so clear, and in such a case it is incumbent upon the pleader to make it clear when dishonesty is alleged. If he uses language which is equivocal, rendering it doubtful whether he is in fact relying on the alleged dishonesty of the transaction, this will be fatal; the allegation of its dishonest nature will not have been pleaded with sufficient clarity. (Emphasis Ours). 21.That the burden of proof in claims related to forgery is higher than that in ordinary civil cases. In the extant matter, the Objectors/Applicants have not allayed any evidence, documentary or otherwise probative of the allegations related to forgery in the making of the subject will. The only remedy that recommends itself to this Honorable Court is the dismissal of the subject Application with costs to the Petitioners/Respondents. 22.In any case, it must be noted that in the spirit of expediency and in order to ensure a fast and effective mode of settling the instant dispute, the Petitioners/Respondents communicated their amenability to the Objectors/Applicants to allow the first prayer of the subject Application to have the deceased's Will subjected to forensic examination by a Document Examiner with the Criminal Investigations Department. This position stems from the fact that the Petitioners/Respondents are alive to the inherent validity of the subject Will and are more than ready to assist the Court to expeditiously settle the instant dispute. 23.On the issue of the Alleged Failure of the Will to make provision for Beneficiaries the Respondents contend that on account of the testamentary freedom bestowed upon the deceased at the time of making the Will, he bequeathed his property to his beneficiaries in the manner contemplated thereunder. Particularly, the failure to make provision for the 1 Objector/Applicant herein was deliberate and borne from the fact that the former had left the deceased more than Seventeen (17) years before the drafting of the Will and moved to the United States of America (USA). Such failure does not lay any basis for the invalidation of the subject Will. 24.That in any case, if the 1st Objector/Applicant feels left out in the succession proceedings herein, Section 26 of the Law of Succession Act comes to her aid. She has the option to make an Application to Court and pray for reasonable provision under the will pursuant to demonstrating evidence of dependence on the deceased. In re Estate of Lusila Wairu Waweru (Deceased) [2020] eKLR, the Honorable Court stated as follows:“A testator has power to dispose of her property as she pleases and the Court is bound to respect those wishes as long, they are not repugnant to the Law and she does not leave out some dependants and beneficiaries. Failure to make provision for a dependant by a deceased person in her will does not invalidate the Will as the Court is empowered under Section 26 of the Law of Succession Act as demonstrated above to make reasonable provision for the dependant. Section 28 sets out the parameters that this Court should consider when making such provisions." (Emphasis Ours). 25.That, the failure to make provision for the 1st Objector/Applicant does not suffice as a valid ground for invalidation of the subject Will. 26.From the foregoing, it is apparent that the Objectors/Applicants' Application dated the 9th day of May, 2025 lacks merit and the same ought to be dismissed with costs to the Petitioners/Respondents. Analysis and Determination 27.This Court is alive to the distinction in procedural requirement and process of a succession that flows from a probate of a written will over an intestate succession, the latter is strictly governed by the law of succession whereas the earlier upon issuance of the grant then the last wish of the deceased would strictly inform the same. Similarly, executors upon being issued with a grant would not be easily removed or replaced save for instances of gross breach of trust and committing adverse and criminal actions against the estate. I hasten to add that the two process are different and unique from each other. 28.I have considered all the pleadings and submissions and refined two broad issues for consideration;i.Whether the is merit to warrant nullification of the deceased last will and testament.ii.Whether I should award costs. 29.This Court in its consideration as to whether the Application is of merit had to evaluate the deceased last will and testament dated 3rd October 2019 observing that:i.the same was executed almost seven years before the demise of the deceased.ii.It bears three witnesses who signed on all the pages in witnessing its execution.iii.It was prepared by an advocate who not only stamped the same but was identified as its custodian to unveil it after the demise of the deceased.iv.It incorporates all the deceased children including the 2nd to the 4th Applicants/Objectors 30.The strongest ground advanced was alleged fraudulent making of the Will, has not been satisfactorily proven to the required threshold in fact the 1st prayer to enjoin police to undertake a forensic examination of the will is indicative of the presumptuous nature of alleged fraud. 31.Proving fraud in Kenya requires strict, specific pleading and evidence, as established by the Court of Appeal in case Ndolo v Ndolo. Fraud cannot be inferred or presumed from the facts; it must be distinctly alleged and proven. The ground fails. 32.I further note the Petitioners unsuccessfully and repeatedly sought the Applicants to enter consent and undertake a joint forensic validation of the deceased will. 33.The 1st objectors’ issue of non-inclusion in the will was explicitly captured in the will and cannot be a basis to invalidate a will and her situation can be judicially addressed under section 26 of the law of Succession Act upon issuance of a grant and her moving Court and demonstrating dependency on her part 34.The plea to bar the firm of Ikua from representing the petitioners for having drawn the will is moot with the petitioners having effected change of advocates. 35.The Arguments of non-specification of the asset portfolio of the deceased estate is no ground to invalidate the last wishes of a deceased person as the same clearly indicates that the beneficiaries shall share equally All Land Assets. 36.As for the 11 motor vehicles allegedly not included in the petition, I find that 10 of the vehicles belong to private companies not subject to this succession while one vehicle Motor vehicle is already included. That plea equally fails. 37.The plea for the petitioners to render account is premature in the absence of a grant as this Court contends that after a grant is made then the persons so appointed are trustees on behalf of the estate and can be thus compelled to render an account. 38.It is the Courts finding the deceased's Will meets all the requisite preconditions of validity as the same is duly signed by the testator and attested by three (3) competent witnesses and as such cannot be nullified. 39.This Court thus Validates the will of the deceased as his last wish and testament. 40.A grant of probate with a written will shall accordingly be issued and as such the Petition dated 21st March 2025 is allowed. 41.The Application dated 9th day of May, 2025 lacks merit and the same is dismissed. 42.I shall not grant costs this being the first contestation by family members amongst themselves. 43.Any party aggrieved by this ruling has a (45) Day Leave to Appeal, which period shall act as a stay period. 44.With regards to the Application dated 11th November 2025 held in abeyance, the same shall be mentioned on the 27th October 2026 before Court number 3 for fixing a ruling date. It is so ordered. SIGNED, DATED AND DELIVERED VIRTUALLY AT BUSIA ON THIS 23RD DAY OF JUNE 2026.MOHOCHI S. M.JUDGE