https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7382

In re Estate of Wekesa (Deceased) (Succession Cause 10 of 2020) [2026] KEHC 7382 (KLR) (20 May 2026) (Ruling) Neutral citation: [2026] KEHC 7382 (KLR) Republic of Kenya In the High Court at Bungoma Succession Cause 10 of 2020 REA Ougo, J May 20, 2026 IN THE MATTER OF THE ESTATE OF CHARLES NATILI WEKESA - DECEASED Between Mary Anyango Natili 1st Petitioner Jafferson Wekesa Turkana 2nd Petitioner and Edward Mandoli Natili Objector Ruling 1.Charles Wekesa Natili died intestate on 16/6/2019. He was a polygamous man with three wives; however, at the time of his death, only one widow, Mary Anyango Natili, survived him. The deceased was also blessed with a number of children. 2.The petitioners herein applied for Letters of Administration of Grant, which were issued on 12/1/2021. On 31/5/2023, Letters of Administration Intestate were issued to the petitioners herein and the objector. The petitioners herein subsequently filed a Summons for Confirmation of Grant dated 20/7/2023, in which they proposed a mode of distribution of the deceased’s estate and stated that the members of the estate had agreed to it. 3.The Objector filed an affidavit of protest on 17/10/2023, and a further affidavit sworn on 21/2/2024, challenging the mode of distribution proposed by the petitioners, deposing that it was not true that members of the deceased’s family had agreed on the mode of distribution. 4.During the proceedings, it emerged from the evidence presented by the petitioners that the deceased had left a will dated 8/1/2019, an averment disputed by the objector. The court was therefore called to determine the will's validity as a preliminary issue. The issue was canvassed through viva voce evidence. 5.PW1, David Lazaro, was an advocate at Were & Company. Advocates testified that the deceased’s will was prepared at his office and that he witnessed it being signed by 2 people who were strangers to him. He further testified that the deceased stated the contents of the will orally. In cross-examination, PW1 testified that he had known the deceased for 2 years prior to his death and had acted on his behalf in a civil matter. He further testified that the deceased failed to appoint an executor of the will and did not specify the registration number of the car contained therein. He gave the deceased a copy of the will. The deceased was in a good state of mind. He was not aware that one of the petitioners herein was a witness to the will. The deceased failed to disclose that another will existed, and he was surprised that a substantial part of the estate was not detailed in the oral will. He could tell why the deceased excluded it. He reiterated that the will was not a forgery. 6.PW2 Jefferson Tukhana Wekesa testified that the deceased was his elder brother. He further stated that the deceased made a will on 8/1/2019 and that he was a witness, together with one Edward Wekesa Nyongesa, his 1st cousin. In cross-examination, PW2 testified that he was familiar with luhya customs. He said he went to the advocate’s office with Edward Wekesa Nyongesa because the deceased had informed them that he was going to write his will. He witnessed the will and then returned home. The issue of the will arose when the deceased informed him that the children were fighting over property and would disturb his wife. Although he attended the deceased’s Lufu ceremony, he never raised the issue of the will, even though that was where the deceased’s family discussed his estate. 7.The objector, Edward Mandoli Natili, testified as DW1. He stated that he objected to the will alleged to be his father’s. That he was close to the deceased, having done business with him, and was thus familiar with his signature. That at the Lufu ceremony there was no disclosure of a will, despite PW2 and Edward being present. That he had known PW1 for over 10 years, as PW1 handled 2 civil and criminal cases at Webuye Court for the deceased. That the deceased was sick for over 4 years, and at the time alleged to have made a will, the deceased was not in a good frame of mind. That the deceased’s death wasn’t sudden. In cross-examination, OW2 reiterated that the deceased was unwell for over 4 years, though he had not filed any documents as proof of this. That he had not reported PW1 to the police nor pursued him to confirm whether the said will was a forgery. That they had not subjected the will to document examination. 8.DW2 No. 23xxxx Mr. Masiko testified that he was a Document Forensic Examiner based at the DCI Nairobi. That he received a court order directing 2 documents to be subjected to examination vide an exhibit memo prepared by the DCI Bungoma and escorted by Inspector Estio Charles. That he had a Bachelor of Education (Science) from Maseno and had been trained as a Forensic Document Examiner at the DCI Regional Forensic Lab. 9.DW2 gave detailed testimony that bears repeating given the subject matter of this ruling. He testified that a forensic analysis compared signatures on an exhibit labelled "A" (a Will) with known specimens of cheque leaves labelled "B1" through "B5". Upon analysis, he found that the signatures were made by different authors. He further found that, when the unique individual characteristics were examined, exhibits B1 and B4 were dissimilar to those in A, the Will. He also found that, in respect of how the author starts the signature, the initial stroke in B1 to B4 was sharp and well-constructed, as compared with the initial stroke on the Will, which was blunt and shaky. He further found that, on exhibit A (the Will), the pen speed was slow, shown by the heavy distribution of ink on the paper, whilst in B1 to B4 the pen speed varied from high to low, as depicted by changes in the ink deposited on the paper along the signature. That, looking at the known signature in B1 to B4, there was an initial character that appeared as "C" and "E" and was well-constructed, whereas in A, the same character was distorted. That, on the loops and the same initial characteristic signature B1 to B4, the looping was clear, whereas in exhibit A, the looping was inconsistent. That, a look at B1 to B4 shows the author's signatures starting from the bottom on the left, appearing to be going towards the right, and an angle is created by an imaginary base, which is contrary to what appears in A. 10.That in B1 to B4, the pressure of the pen on the paper was not consistent, rather it varied, as shown by the varying thickness of the line along the signature. That in B1 to B4, the lines are thick and then back thick, whereas in A, the pressure was the same along the signature, as shown by the consistent thickness of the line along the signature. That the ink distribution helped them determine the paper and the pen speed, and, according to the pressure patterns, which are determined by the amount of ink deposited during writing. That in signatures B1 to B4, there were parts of the signature where the ink was heavy and parts where the ink was light, which is consistent. 11.It was his testimony that he concluded that the two signatures were made by two different authors. He produced the report, signed and dated 20th of May, and stated that it was approved by a team of experts as procedural and true. 12.In cross-examination, DW2 testified that, apart from the signatures, he had no other document bearing the deceased's known signatures. That habit can affect a signature, and it also depends on whether he has a sharp or a blunt pen. 13.In re-examination, DW2 testified that the scope of the work was open-ended. He was called upon to analyse the signature on the will and the other documents. He did not need any other document, as B1 to B4 were sufficient for analysis. He also testified that age affects the signature and its beauty. 14.The parties filed written submissions. I have duly considered them. The only issue for determination is whether the will is valid. 15.Section 8 of the Law of Succession Act sets out the forms of wills. It provides that a will may be made either orally or in writing. The formal requirements for the validity of a written will are set out in section 11 of the Law of Succession Act. It states -“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.” 16.The document under probate, a written will, was executed by the deceased and attested by two witnesses. On the question of the will's validity, the Court observes that the Petitioners maintain that the deceased executed a valid will on 8/1/2019, meeting all formal requirements under Section 11 of the Law of Succession Act. Advocate David Were testified that he witnessed the execution of this will, which was drawn by Were & Company Advocates. 17.The Objector, however, has challenged this will on several grounds. Primarily, he contends that the deceased’s signature on the will is forged. The Objector also contends that the deceased lacked testamentary capacity, having been ailing for a period of 4 years prior to his death, and that at the time he is alleged to have signed the will, he was too sick to do so and thus lacked the mental capacity. 18.The evidence of DW2, Mr Masiko, was that the signature on the purported will was forged and did not match the authenticated signatures of the deceased, Charles Natili Wekesa. 19.The Court notes that although the document examiner was cross-examined, the substance of the testimony was not challenged by the petitioners during cross-examination, leaving this expert evidence uncontroverted. 20.In re Estate of Samuel Ngugi Mbugua (Deceased) [2017] eKLR, the court was of the view that:“The allegation that the said signature was not that of the deceased amounts to a claim that the signature was forged or that fraud was exercised in the procurement of the alleged will. That is to say that someone other than the deceased had affixed that mark on the will with the intent of passing the same as the signature of the deceased. Forgery is a criminal offence. The applicant is in fact imputing criminal conduct on either the person propounding the will or those who were involved in the operation that is purported to have been its execution. 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.” 21.The Court has before it uncontroverted expert testimony from a Qualified Document Examiner that the signature on the will does not match the deceased's authenticated signatures. The petitioners' failure to challenge this expert evidence through cross-examination leaves a compelling finding that the purported will was not signed by the deceased. 22.I therefore find that the will of 8/1/2019 is not valid under the Law of Succession Act. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 20TH DAY OF MAY, 2026.R. E. OUGOJUDGEIn the presence of:Miss Mutunda h/b Mr. Masinde for the objector.Edward Natili.Jafferson Wekesa Turkana.Mary Anyango.Mr. Wanjala.Wilkister - C/A.