https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12635

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT NYERI** **SUCCESSION CAUSE NO. E024 OF 2022** **IN THE MATTER OF THE ESTATE OF GIBSON MWANGI WANJOHI (DECEASED)** ## **MARY WAMBUI MWANGI………………………………..…… PETITIONER** ## **VERSUS** ## **ROSEMARY WAMUYU MWANGI………………………..…1ST PROTESTOR** ## **CATHERINE WANJIKU MWANGI……….…………..……2ND PROTESTOR** ## **AURELIA MUTHONI MWANGI..……................................ 3RD PROTESTOR** ## **ANN WAIRIMA NDERITU..……......................................... 4TH PROTESTOR** **PATRICK WANJOHI MWANGI……………………….……5TH PROTESTOR** **JUDGMENT** 1. The deceased herein, Gibson Mwangi Wanjohi died on 27.9.2021 at Outspan Hospital. The Petitioner filed a Petition for Grant of Probate of the written will on 24.8.2022 vide the Petition dated 27.7.2022 stating that the deceased died leaving the impugned written will dated 11.8.2021. 2. Subsequently, by a Summons General dated 8.6.2023, the 1st Protestor sought the following reliefs: 3. The written will dated 11.8.2021 of Gibson Mwangi Wanjohi be declared invalid, null and void and be struck off. 4. The probate herein be declared null and void for being premised on an invalid written will. 5. The parties be ordered to commence intestate proceedings upon making necessary application to the court. 6. The summons was supported by the affidavit of Rosemary Wamuyu Mwangi sworn on 8.6.2023 and was premised on the following: 7. The will was not witnessed by Geoffrey Njuguna Macharia as indicated who never witnessed the deceased attest to the will. 8. The said witness never appeared before Grace Mukuha-advocate who was said to have prepared and witnessed the will. 9. The written will has failed to provide for one beneficiary – Purity Wanjiru Mwangi of the 1st House of Mary Gakenia Kanyari - deceased. 10. The will did not name the parcel numbers of the property allegedly bequeathed. 11. The deceased could not have executed the will as he was admitted to Outspan Hospital on 4.2.2021 critically ill where he passed away on 27.9.2021 as per the eulogy. 12. The will had left out property of the deceased. 1. Ann Wairima Ndiritu also filed her affidavit dated 19.6.2024 opposing the grant of probate of the written will on the following material grounds: 2. She was a daughter of the first wife of the deceased. 3. The first wife, Mary Gakenia Mwangi had 7 children while the 2nd wife Mary Wambui Mwangi had 3 children with the deceased. 4. Purity Wanjiru Mwangi, a daughter of the deceased was not included in the will. 5. The two families of the deceased lived in LR 3437 measuring 300 acres. 6. In 2019, the deceased was diagnosed with prostate cancer and a kidney disease which caused serious deterioration of his mental capabilities now that he was already more than 90 years old. 7. Geoffrey Njuguna Macharia swore an affidavit denying ever witnessing the will. 8. It was strange that paragraph 11 of the will indicated that the deceased’s first wife should not make a claim on LR 3437/3 when the said first wife had already died on 20.9.2013. 9. The beneficiaries of the first house were all left out of the will. 10. The Petitioner filed a supplementary affidavit dated 23.4.2024 by which she deposed as follows in answer to the protest: 11. The deceased provided for all his 13 beneficiaries inter vivos. 12. The deceased had prior to his demise subdivided LR No. 3437/3 into 320 portions and had consecutively sold some of the resultant parcels to purchasers. Evidence 1. During the hearing, PW1 was Geoffrey Njuguna Macharia. He relied on his replying affidavit dated 11.6.2023 and the witness statement dated 30.9.2024. He did not sign the will. The signature on the will was not his. He did not appear before Grace Mukuha advocate. He did not even know her. In cross examination, it was his case that he knew the deceased for many years. He was close to the deceased. He did not visit the deceased. The name and ID of the second witness were his, but the signature not. 1. PW2 was No. 99877 Sgt. Dominic Mugamba. He received the will pursuant to a court order dated 9.4.2024 directing him to carry out a forensic examination. He collected known signatures of the deceased from the land registry. He used the transfer of land for Thengenge/Karia/1108. He prepared an exhibit memo. He received forensic examination report prepared on 12.6.2025. On examination, the documents were made by a different person. On cross examination, he stated that he was not a document examiner. He collected transfer document in respect of Thengenge/Karia/1108. 2. PW3 was No. 236821 CIP James Macharia. He was the document examiner. He compared the disputed signatures with the known signatures of the deceased. He relied on the report dated 12.6.2025. In his opinion, the disputed signatures on the will were not made by the deceased. On cross-examination, he said the specimen signatures were used to compare with disputed signatures. The signatures provided were consistent. 3. PW4 was Wairima Ndiritu. She relied on her affidavit dated 19.6.2024 and produced the list of documents dated 23.1.2026. She testified that the signatures on the will did not resemble the known signature of the deceased. According to her, PW1 did not sign the will, and she did not know the lawyer who prepared the will. The will did not have the deceased’s land. Her stepmother, the Petitioner, was subdividing and selling the land. She visited her father on 25.9.2021, a day before he died. He was admitted on 4.9.2021 until his death on 27.9.2021. He was sickly from 2019 and could not authorize transfers in 2020. 4. PW5 was Rosemary Mwangi. The deceased was her father. She relied on her sworn affidavit dated 5.6.2023. She produced further list of documents dated 3.10.2024. The deceased was in and out of hospital. He called various family meetings. She stated that she did not decline to attend the reading of the will. 5. The Petitioner’s case was closed without calling witnesses. The petitioner was in court for defense hearing and with three witnesses. At the time appointed for hearing, the petitioner sought time to file an application related to an oral will. The court directed that the formal witnesses be heard and the directions on the application will be given after hearing for that day. The petitioner was adamant in their refusal. I directed that they proceed and if they did not proceed by 1205 hours, the case will be deemed closed. The applicant and her advocate walked away from court. The case was deemed closed at 1205. At 1210 hours I marked the case as closed and directed submissions be filed. 6. Afterward, the petitioner filed two applications. I dismissed both on 23.07.2026 and ordered that judgment be delivered today as earlier scheduled. Submissions 1. The Protestor filed submissions dated 22.5.2026. It was submitted that the will was not validly executed in accordance with section 11 of the Law of Succession Act as the signature thereon did not belong to the deceased. The will and proceedings were marred with fraud, falsehood and misrepresentation. 1. The Protestors submitted that the will was forged and they prayed this fact through their evidence. Reliance was placed on **Ann Wambui Ndiritu v Joseph Kiprono Ropkoi & Another** (2005) EA 334 and the case of *Kinyanjui Kamau v George Kamau (2015) eKLR* based on which it was submitted that the Protestors proved forgery and fraudulent conduct on the part of the Petitioner. 2. The 4th and 5th Protestors also filed their submissions dated 6.5.2026. They submitted that the will was not prepared and executed by the deceased and further, was not witnesses by 2 independent witnesses as required under section 11 of the Law of Succession Act. Reliance was placed inter alia on the case of the *Estate of MK (Deceased) (Succession Cause No. 144 of 2014) [2018] eKLR* where it was held that: **‘The soundness of mind for the purpose of testation was defined by Cockburn CJ in Banks vs Good follow (1870) LR. 5QB 549 in the following terms: Testamentary capacity means that the testator must have a sound and disposing mind, enabling them to understand the nature of the will making, a sound memory to recollect the property they intended to dispose of, and a sound understanding to remember the persons who should benefit from their estate.** 1. The Petitioner did not file submissions. Analysis 1. The issues before me for determination are as follows: 2. Whether the will herein is invalid; and if so, 3. Whether the Grant of Probate should be revoked. 4. In my analysis, I have no doubt that the matters alleged by the Protestors are matters of evidence and the Protestors have the burden to prove the allegations they have raised in their application and affidavits. 5. On this subject, Section 107(1) of the Evidence Act, Cap 80 Laws of Kenya provides that: Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. 1. The protestors wanted the court to believe that the will was invalid. They bore that burden. In **Anne Wambui Ndiritu –vs- Joseph Kiprono Ropkoi & Another [2005] 1 EA 334**, the Court of Appeal held that: **“As a general proposition under Section 107 (1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is case upon any party the burden of proving any particular fact which he desires the court to believe in its existence which is captured in Sections 109 and 112 of the Act.”** 1. The initial burden of proof lies on the Protestors in this case, but the same may shift to the Petitioner, depending on the circumstances of the case. In **Evans Nyakwana –vs- Cleophas Bwana Ongaro [2015] eKLR** it was held that: **“As a general preposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of Section 107 (i) of the Evidence Act, Chapter 80 Laws of Kenya. Furthermore, the evidential burden…is cast upon any party, the burden of proving any particular fact which he desires the court to believe in its existence. That is captured in Section 109 and 112 of law that proof of that fact shall lie on any particular person…The appellant did not discharge that burden and as Section 108 of the Evidence Act provides the burden lies in that person who would fail fi no evidence at all were given as either side.”** 1. **Proof on a balance or preponderance of probabilities means a win; however narrow. A draw is not enough.** In **Palace Investment Ltd –vs- Geoffrey Kariuki Mwenda & Another [2015] eKLR**, the Judges of Appeal held that: **Denning J, in Miller –vs- Minister of Pensions [1947] 2 All ER 372 discussing the burden of proof had this to say;-** **“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that a tribunal can say: we think it more probable than not; the burden is discharged, but, if the probabilities are equal it is not.** **This burden on a balance or preponderance of probabilities means a win however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept where both parties…are equally (un) convincing, the party bearing the burden of proof will lose because the requisite standard will not have been attained.”** 1. On my perusal of the impugned will dated 11.8.2021, the document under probate is on the face of it a written will executed by the deceased and attested by two witnesses. 2. The content, form of the written will, and the capacity of the deceased to bequeath his property as he wished were challenged by the Protestors. The allegations that the deceased was of ill health that incapacitated his free will were also raised. As far as the wills are concerned **In Re Estate Of Gatuthu Njuguna (Deceased) [1998] eKLR** the Court quoted an excerpt from ***Halsbury's Laws of England, 4th Edition vol 17* at page 903-904-** “Where any dispute or doubt or sanity exists, the person propounding a will must establish and prove affirmatively the testator's capacity and that where the objector has proved incapacity before the date of the will, the burden is shifted to the person propounding the will to show that it was made after recovery or during a lucid interval. The same treatise further shows that the issue of a testator's capacity is one of fact to be proved by medical evidence, oral evidence of the witnesses who knew the testator well or by circumstantial evidence and that the question of capacity of is one of degree, the testator's mind does not have to be perfectly balanced and the question of capacity does not solely depend on scientific or legal definition. It seems that if the objector produces evidence which raises suspicion of the testator's capacity at the time of the execution of the will which generally disturbs the conscience of the court as to whether or not the testator had necessary capacity, he had discharged his burden of proof, and the burden shifts to the person setting up the will to satisfy the court that the testator had necessary capacity.” 1. As to whether the impugned will is invalid, I understand the Protestors to challenge the validity of the will on a number of reasons which in brief relate to the following: 2. The will was invalid 3. The signature of the testator on the will was forged. 4. The testator had no capacity to make the will and so did not know or approve the contents of the will. 5. **The issue of the testator’s capacity to make the will was an issue raised by the Protestors who alleged that the deceased suffered and died from effects of prostate cancer and gastrointestinal bleeding and kidney failure which also affected his mind as to be able to freely make a will. The testator was presumed to be of sound mind. No material was produced to prove the allegation that he was not of sound mind. The burden of proof was on the Protestors to prove the allegations on a balance of probability.** The question then is what amounts to proof on a balance of probabilities. **Kimaru, J** in **William Kabogo Gitau –vs- George Thuo & 2 Others [2010] 1 KLE 526** stated that: **“In ordinary civil cases a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely that not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred.”** 1. Regarding the legal capacity to make wills, Section 5 of the Law of Succession Actprovides that: “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 dispositions by reference to any secular or religious law he chooses. 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. All that the Petitioner needed to prove in terms of capacity was that the testator was at the time of propounding the will capable of understanding the nature of his act and its effects, the extent of the property of which he is disposing and appreciate the claims to which he ought to give effect*.* The Court of Appeal had this to say in **Ngengi Muigai & Another V Peter Nyoike Muigai & 4 Others In the matter of James Ngengi Muigai (Deceased) [2018] eKLR:-** “In the recent case of Rosemary B. Koinange (suing as legal representative of the late Dr. Wilfred Koinange and also in her own personal capacity) & 5 Others V Isabella Wanjiku Karanja & 2 Others [2017] e KLR this court examined the issue of mental capacity (to make a will) and stated as follows: “The essentials of testamentary capacity were laid out in the case of Banks V Goodfellow [1870] LR5QB 549 as cited with approval in the Tanzanian Court of Appeal case of Vaghella V Vaghella [1999] EA 351 thus: “ A testator shall understand the nature of the act and its effects, shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing property and bring about a disposal of it which if the mind had been sound, would not have been made.” 19. The Court of Appeal further stated: “Construing the issue of capacity, Githinji J. in the case of In Re Estate of Gatuthu Njuguna (Deceased) (1998) e KLR stated: “As regards the testator’s mental and physical capacity to make the will, 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 sound mind, in this case the applicant …. However paras 903 and 904 of Volume 17 of Halsbury’s Laws of England show that, where any dispute or doubt of sanity exists, the person propounding a will must establish and prove affirmatively the testator’s capacity, and that where the objector has proved incapacity before the date of the will, the burden is shifted to the person propounding the will to show that it was made after recovery or during a lucid interval. The same treatise further shows that the issue of testator’s capacity is one of fact which can be proved by medical evidence, oral evidence of the witnesses who knew the testator well or by circumstantial evidence and that the question of capacity is one of degree, the testator’s mind does not have to be perfectly balanced and the question of capacity does not solely depend on scientific or legal definition. It seems that, if the objector produces evidence which raises suspicion of the testator’s capacity at the time of execution of the will which generally disturbs the conscience of the court as to whether or not the testator had necessary capacity, he had discharged his burden of proof and the burden then shifts to the person settling up the will to satisfy the court that the testator had the necessary capacity.” 1. The protestors also alleged that the deceased did not sign the will. PW1 and PW5 corroborated the evidence of the protestors that the signature on the will was forged. PW1 denied signing the will and PW5, a forensic examiner established that the signature perceived to be of the deceased as appended on the will was in fact not the signature of the deceased. 2. The allegations of fraud and forgery are serious allegations that must be strictly proved. The need to prove and the burden of proof of such allegations of forgery, fraud, falsehood or dishonesty was elaborated by the court in ***Christopher Ndaru Kagina vs. Esther Mbandi Kagina & Another* [2016] eKLR** where the court stated that – **‘**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. In the Case Central Bank of Kenya Ltd -Vs- Trust Bank Ltd & 4 Others [26] 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.” In Armitage v Nurse [28] Millett L.J. having cited this passage continued: “In order to allege fraud it is not sufficient to sprinkle a pleading with words like “willfully” and “recklessly” (but not “fraudulently” or “dishonestly”). This may still leave it in doubt whether the words are being used in a technical sense or merely to give colour by way of pejorative emphasis to the complaint.” In Paragon Finance plc v D B Thakerar & Co the court stated that it is well established that fraud must be distinctly alleged and also distinctly proved, and that if the facts pleaded are consistent with innocence it is not open to the court to find fraud. The burden is always on the claimant to prove fraud on the part of the Respondent. The standard of proof where fraud is alleged is high. Though it is the same civil standard of proof on a balance of probabilities, it is certainly higher than the ordinary proof on a balance of probabilities but lower than proof beyond reasonable doubt. It all depends on the nature of the issue and its gravity. Evidence of especially high strength and quality is required to meet the civil standard of proof in fraud cases. It is more burdensome: (see also the cases of Mpungu & Sons Transporters Ltd –v- Attorney General & another. In Jennifer Nyambura Kamau v Humphrey Nandi, the Court of Appeal, Nyeri, emphasized that fraud must be proved as a fact by evidence; and, more importantly, that the standard of proof is beyond a balance of probabilities.’ 1. I have perused the evidence produced in court. I have with particular detail directed my mind to the evidence of the expert documentary examiner who filed his forensic report. The expert was called by the Protestors and the Petitioner did not call any expert. I find weight and probative value in the evidence of PW5. An unidentified person other than the deceased signed the will. PW1 did not also sign the will as witness. Without a contrary opinion and considered against the other evidence and testimonies in court, it is irresistible that the will does not meet the threshold of the law. 2. Whereas the opinion of PW5 is not necessarily binding to this court, considered with other available evidence of the Protestors and PW1, I have reason to believe it. The Court of Appeal, on its part in **Kimatu Mbuvi T/A Kimatu Mbuvi & Bros vs. Augustine Munyao Kioko Civil Appeal No. 203 of 2001 [2007] 1 EA 139**held that: ***“… such opinions are not binding on the Court although they will be given proper respect, particularly where there is no contrary opinion and the expert is properly qualified although a Court is perfectly entitled to reject the opinion if upon consideration alongside all other available evidence there is proper and cogent basis for doing so.”*** 1. Furthermore, the Petitioner did not put up any case to challenge the evidence presented by PW4 and PW5 as regards falsification of the signatures on the will. I find no proper or cogent reason for rejecting the expert opinion on the will herein. In **Parvin Singh Dhalay vs. Republic [1997] eKLR; [1995-1998] 1 EA 29,**it was held that: ***“It is now trite law that while the courts must give proper respect to the opinions of experts, such opinions are not, as it were, binding on the courts and the courts must accept them. Such evidence must be considered along with all other available evidence and if there is proper and cogent basis for rejecting the expert opinion, a court would be perfectly entitled to do so. We will repeat what this Court said in the case of***Elizabeth Kamene Ndolo vs. George Matata Ndolo***, Civil Appeal No. 128 of 1995. There the Court said with regard to the evidence of experts:-*** "The evidence of PW1 and the report of Munga were, we agree, entitled to proper and careful consideration, the evidence being that of experts but as has been repeatedly held the evidence of experts must be considered along with all other available evidence and it is still the duty of the trial court to decide whether or not it believes the expert and give reasons for its decision. A court cannot simply say:- "Because this is the evidence of an expert, I believe it."..." 1. Considered with other evidence on record, I am persuaded that the deceased herein did not sign the will. The will did not meet the threshold under Section 11 of the Law of Succession Act. 2. Section 7 of the Law of Succession Act provides that a testator must exercise his free will in the distribution of his estate and the absence of such free will invalidates a will. It provides- **7. A will or any part of a will, the making of which has been caused by fraud or coercion, or by such importunity as takes away the free agency of the testator, or has been induced by mistake, is void.** 1. Equally in my view, the witnesses who testified for the Protestors clearly brought out uncontroverted assertions that the will was not witnessed appropriately. The Petitioner did not avail evidence to challenge the fact that the will was not signed by the deceased in the presence of PW1 and the advocate. I therefore hold and find that the will was improperly witnessed. Section 11 of the **Law of Succession Act** sets out the formal validity of written wills 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 of 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 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. As the impugned will was not properly attested, it cannot be said to be authentic. It is invalid. The court cannot even consider its contents, for doing so is tantamount to writing a will for testator. In **In re Estate of Samuel Ngugi Mbugua (Deceased) [2018] eKLR** the court stated as follows: In construing the contents of a will, the first principle is to discover the intention of the testatrix as clearly stated in the will as a whole. This was articulated by Lord Romer of the House of Lords in the case of Perrin v Morgan 1943 AC 399-420 where the court stated as follows: “ I take it to be a cardinal rule of construction that a will should be so construed as to give effect to the intention of the testator, such intention being gathered from the language of the will read in the light of the circumstances in which the will was made. To understand the language employed, the court is entitled to use a familiar expression, to sit in the testator’s armchair. When sitted there however, the court is not entitled to make a fresh will for the testator merely because it strongly suspects that the testator did not mean what he has plainly said. 1. As to whether the grant of probate herein should be set aside or nullified on account of defect, this proposition is predicated on Section 76 of the Law of Succession Act, Cap 160, Laws of KenyaandRule 44 of the probate and Administration Rules*,* which provides that: **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—** **(a) that the proceedings to obtain the grant were defective in substance;** **(b) 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;** **(c) 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;** **(d) that the person to whom the grant was made has failed, after due notice and without reasonable cause either—** **(i) to apply for confirmation of the grant within one year from the date thereof, or such longer period as the court order or allow; or** **(ii) to proceed diligently with the administration of the estate; or** **(iii) to produce to the court, within the time 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** **(e) that the grant has become useless and inoperative through subsequent circumstances.”** 1. On the other hand, Rule 44 provides: **44. Revocation or annulment of grant** **(1) Where any person interested in the estate of the deceased seeks pursuant to the provisions of section 76 of the Act to have a grant revoked or annulled he shall, save where the court otherwise directs, apply to the High Court for such relief by summons in Form 107 and, where the grant was issued through the High Court, such application shall be made through the registry to which and in the cause in which the grant was issued or, where the grant was issued by a resident magistrate, through the High Court registry situated nearest to that resident magistrate’s registry.** **(2) There shall be filed with the summons an affidavit of the applicant in Form 14 for revocation or annulment identifying the cause and the grant and containing the following particulars so far as they are known to him—** **(a) whether the applicant seeks to have the grant revoked or annulled and the grounds and facts upon which the application is based; and** **(b) the extent to which the estate of the deceased has been or is believed to have been administered or to remain un-administered, together with any other material information.** **(3) The summons and affidavit shall without delay be placed by the registrar before the High Court on notice in Form 70 to the applicant for the giving of directions as to what persons (if any) shall be served by the applicant with a copy of the summons and affidavit and as to the manner of effecting service; and the applicant, upon the giving of directions, shall serve each of the persons so directed to be served with a notice in Form 68, and every person so served may file an affidavit stating whether he supports or opposes the application and his grounds therefor.** **(4) When the persons (if any) so directed to be served (or such of them as the applicant has been able to serve) have been served with a copy of the proceedings, the matter shall be placed before the High Court on notice by the court to the applicant and to every person so served, and the court may either proceed to determine the application or make such other order as it sees fit.** **(5) Where the High Court requires that notice shall be given to any person of its intention of its own motion to revoke or annual a grant on any of the grounds set out in section 76 of the Act the notice shall be in Form 69 and shall be served on such persons as the court may direct.** 1. Failure to disprove allegations of forgery of a signature just like failure of a mandatory step in the making of the will, vitiated the will. It invoked a condition under Section 76 of the Law of Succession Act that consequently justifies revocation of the resultant grant. Proceedings based on an invalid will were defective and void. I am fortified by the reasoning of the Court in **In re Estate of Kimining Arap Kiboigut(Deceased) [2021] eKLR** as follows: Under section 76, a court may revoke a grant based on the grounds listed above. The revocation may be on courts own motion or on the application of a party. Generally, there are three grounds upon which a grant may be revoked: a. Where the process was defective, either because some mandatory procedural step was omitted, or the persons applying for representation was not competent or suitable for appointment, or the deceased died testate having made a valid will and then a grant or letters of administration intestate was made instead of a grant of probate, or vice versa. It could also be that the process was marred by fraud and misrepresentation or concealment of matter, such as where some survivors are not disclosed or the applicant lies that he or she is a survivor when he/she is not, among other reasons. The above ground has been used by courts to revoke grant in a litany of cases including **Mwathi v Mwathi & Another 1 EA 229, In the Matter of the Estate of Mwaura Mutungu alias Mwaura Gichingo Mbura alias Mwaura Mbura Nairobi High Court Succession Cause Number 935 of 2003 and Musa v Musa, 2002 1 EA 182**. b. Where the grant was obtained procedurally, but the administrator, thereafter, got into problems with the exercise of administration, such as where he or she fails to apply for confirmation of grant within the time allowed, or he or she fails to proceed diligently with administration, or fails to render accounts as and when required. For example, **In the Matter of the Estate of Mohamed Musa, Mombasa High Court Succession Cause No.9 of 1997**, the court revoked grant because the administrators had not kept any records of account of their administration. c. Where the grant has become useless and inoperative following subsequent circumstances, such as where a sole administrator dies leaving behind no administrator to carry on the exercise, or where the sole administrator loses the soundness of his mind for whatever reason or even becomes physically infirm to an extent of being unable to carry out his or her duties as administrator, or the sole administrator is adjudged bankrupt and, therefore, becomes unqualified to hold any office of trust. 1. In my view, the Protestors have satisfied the legal threshold for revoking the grant of probate herein. The default in signature and the proven fact that the testator is not the one who signed the will are sufficient grounds. In re **Estate of Mukhobi Namonya (Deceased) [2020] eKLR** the court stated as follows: **Under section 76 of the Act, a grant of representation is liable to revocation on three general grounds. The first ground would be where the process of obtaining the grant was attended by glaring difficulties, such as where the same was defective, say because the person who obtained representation was not qualified to be appointed as personal representative, or the procedural requirements were not met for some reason or other. It could also be because the petitioner used fraud or misrepresentation or concealed important information in order to obtain the grant. The second general ground is where the grant is obtained procedurally, but the administrator subsequently runs into difficulties during the process of administration of the estate. Such difficulties include his failure or omission to apply for confirmation of his grant within the period allowed in law, or where he fails to exercise diligence in administration of the estate, such as where he omits to collect or get in an asset, or where he fails to render accounts as and when he is required to do so by the law. The third general ground is where the grant has become inoperative or useless on account of subsequent circumstances, such as where the sole administrator died or loses the soundness of his mind or is adjudged bankrupt.** 1. This court appreciates that the wishes of the deceased as contained and propounded in a valid will that must at all times be protected. However, this follows a declaration of the validity of the will. If the will is valid, so be it. If it is invalid, it is like there was no will at all. The best recommendation is the succession process to follow the rules of intestacy. In the case of **Sospeter Kimani Waithaka succession cause No. 341/1998**, the court had this to say: **“The will of the deceased must be honored as much as it is reasonably possible. Re-adjustments of the wishes of the dead by the living must be spared for only accentric and for only unlawfully harmful testators and weird wishes. But in the matters of normal preferences for certain beneficiaries or dependants, may be for their social goodness to the testator, the court should not freely intervene to alter them”.** 1. The Petitioner failed to establish the validity of the will and testamentary freedom could not be found. **In re Estate of Catherine Nduku Malinda (Deceased) [2020] eKLR** the court stated as follows: *I associate myself with the position in the case of John Wagura Ikiki & 7 others vs. Lee Gachigia Muthoga [2019] eKLR where the court expressed itself as follows:* *“Having found that the will was valid, it therefore follows that the deceased had the freedom to dispose of all his earthly possessions as he deemed fit. It was within this very exercise of testamentary freedom that the deceased elected to leave out his sons, John Wagura and Joseph Ndungu Ikiki, and in the same breath, bequeathed the lion's share of his estate to his 3rd wife for reasons that were personal to himself. He was under no obligation to give any reasons for so doing. This is indeed the objective of testamentary freedom.”* 1. There is sufficient evidence to necessitate this court to revoke or annul the will and the grant of probate. Determination 1. In the upshot, I make the following orders: 2. The written will dated 11.8.2021 of Gibson Mwangi Wanjohi is invalid, null and void and was not a will of the deceased. 3. The Protestors shall have costs of Ksh. 75,000/= each, payable by the Petitioner. 4. The Protestors shall file a petition intestate within 60 days. 5. Mention on 3.02.2027 to confirm progress in filing intestate petition. **DELIVERED, DATED** and **SIGNED** at **NYERI** onthis **30th** day of **July** the year of our Lord **Two Thousand and Twenty-Six**. Judgment delivered through Microsoft Teams Online Platform **KIZITO MAGARE** **JUDGE** **In the presence of: -** Wangechi Gathua for the Petitioner Mr. Kariuki Mwai for the 1st, 2nd, 3rd, and 5th Protestors Mr. Muiruri for the 4th Protestor Court Assistant – Timothy