https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8146

In re Estate of the Late Meshack (Deceased) (Succession Cause 2283 of 2006) [2026] KEHC 8146 (KLR) (Family) (11 June 2026) (Judgment) Neutral citation: [2026] KEHC 8146 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Family Succession Cause 2283 of 2006 HK Chemitei, J June 11, 2026 IN THE MATTER OF THE ESTATE OF THE LATE PRISCILLA WAMBUI MESHACK (DECEASED) Between Thomas Mbuthia Kihara 1st Petitioner Faith Wangui Mbuthia 2nd Petitioner and Samuel Thata Nganga 1st Objector Rosemary Mukuhi Nganga 2nd Objector Mary Wanjiru Muigai 3rd Objector George Ndichu Njenga 4th Objector Judgment 1.The Deceased died on 23rd May 2006. She left behind a written Will dated 6th March 2006 nominating the Applicants as Executors. 2.The said Executors proceeded to apply for probate and a grant was issued to them on 5th September 2008. 3.The Objectors filed objection proceedings on the grounds inter alia that the same was a forgery and that it ought to be revoked. 4.The Court directed that the objection be heard by way of oral evidence. 5.Pw1 Mary Wanjiru Mungai testified that the deceased was her sister-in-law since her late husband George Nganga was her brother. 6.She went on to rely on her statement filed on 24th January 2022 and the related documents in support. 7.When cross examined, she said that the deceased had been unwell and that her late husband reported the matter at the local subchief office. She said that the Will was forged as the deceased was not in good health to prepare the same. She however admitted that she did not have any medical proof. 8.That the deceased did not die of mental illness but she had throat cancer and was bedridden and unable to talk. 9.She further stated that the deceased paid for her dowry and payment of her children’s school fees. 10.Pw2 Lucy Nyokabi testified that the deceased was her sister in-law and that her husband was called James Mungai Nganga. She relied on her affidavit dated 25th February 2010. 11.When cross examined, she said that the Applicants hide the deceased and took her away without the knowledge of the family. That she saw her when she was sick although she did not have any medical report. 12.Dw1 Zakayo Kimani Maina advocate testified that under the orders of advocate Kirundi he prepared the will and he saw the deceased execute the same. 13.He said that it was Mr. Kirundi who had prepared the draft and he prepared the final document. He said that the deceased was a regular client in the office. 14.Dw2 Catherine Njeri Kimotho testified and relied on her statement dated 6th November 2018 and acknowledged that she had witness the Will and the deceased signing the same. 15.She further on cross examination stated that she had typed the Will under the instructions of Mr. Kirundi advocate. 16.Dw3 Thomas Mbuthia Kihara relied on his affidavit dated 26th April 2018 as well as the statement dated the same date. 17.When cross examined he said that the deceased was his Aunt, sister to her mother. 18.Dw4 Anthony Nganga relied on his statement dated 6th April 2018 and when cross examined stated that the deceased was his grandmother and that she raised him up and that he was staying in the house as at the time of testifying. 19.Dw5 Martin Papa a private document examiner produced his report dated 1st of November 2018 concerning his examination of the will. He found that the signature in the Will was consistent with the deceased known signatures. 20.When cross examined, he said that he did not see the original Will but relied on the copy with the CID headquarters. 21.The Court directed the parties to file written submissions and they have complied. 22.The Objectors submitted that the said Will was a forgery as the same was contradicted by the evidence notably from Zakayo Kimani Maina advocate (dw3) and that prepared by advocate Kirundi. 23.Further that the rest of the family members were not involved when the Applicants whisked the deceased away for treatment. 24.That the deceased could not bequeath properties which were still a subject of a Court dispute namely Case No. 8540 of 1999. 25.They also submitted that the Applicants were not dependants of the deceased and they did not produce any evidence. 26.On the other hand, the Applicants submitted that the said Will was valid and never a forgery as alleged by the Respondents /Objectors. They submitted that there was no contrary evidence challenging that of Dw5 regarding the authenticity of the signatures. 27.Neither according to them was there any prove that the same was executed under any duress or at all. They submitted that they did not comply with the provisions of Section 109 of the Evidence Act on the burden of proof. 28.The Applicants relied on several authorities to buttress their case and prayed that the objection be disallowed. ANALYSIS AND DETERMINATION 29.I have carefully perused the objection herein, the evidence on record as well as the submissions and the authorities relied upon by the parties. 30.The central issue before the Court is the authenticity of the Will. The deceased did not have any children and there is no evidence of any spouse presented before the Court. 31.The parties herein are claiming to be close relatives. I have not been shown any evidence of any support and or maintenance by the deceased to either the Applicants or the Objectors. 32.It is accepted across the board the deceased was unwell and she died in South Africa where she had been taken for treatment. The Objectors claim that the Applicants whisked her away from their presence. No evidence was adduced to that effect. 33.More importantly I have not been shown any medical evidence or record to suggest that as at the time of making the Will she was incapacitated in any manner. 34.It was alleged that she was not talking because of the throat cancer she was suffering from. Again, there was no evidence. Zakayo Maina advocate who prepared the Will in conjunction with Mr. Kirundi testified to the effect that he saw the deceased signed the Will. 35.The same position was held by Dw4 Catherine Njeri Kimotho who typed the Will as she worked with Mr. Kirundi and Zakayo. 36.In my view therefore, I did not find their evidence shaken at all. This was equally buttressed by the evidence of the document examiner Martin Papa who found the deceased signature in the Will consistent with those in the specimen’s documents supplied to him. 37.I find that the said Will is consistent with the provisions of Section 11 of the Succession Act in all fours. There is no evidence that the testator was suffering at all or in capacitated to the level that she was unable to give instructions to her advocates on record. 38.The will has been attested by two witnesses as required under the above portion of the law. 39.As for the Objectors I did not find any sufficient evidence that they were dependants of the deceased and in any case their case was premised on the fact that the Will was invalid and not that they required reasonable provisions from the estate. 40.In the premises the objection proceedings are hereby dismissed with no order as to costs. DATED SIGNED AND DELIVERED VIA VIDEO LINK AT NAIROBI THIS 11TH DAY OF JUNE 2026.H K CHEMITEIJUDGE, FCIArb.