[2025] KEHC 448 (KLR)

In re Estate of Benard Kimurei Chirchir (Deceased) (Succession Cause 134 of 2023) [2025] KEHC 448 (KLR) (27 January 2025) (Ruling)

Neutral citation: [2025] KEHC 448 (KLR)

Republic of Kenya

In the High Court at Eldoret

Succession Cause 134 of 2023

RN Nyakundi, J

January 27, 2025

IN THE MATTER OF THE ESTATE OF BENARD KIMUREI CHIRCHIR (DECEASED)

Between

John Kipchirchir Birgen

1st Petitioner

Julius Kiptoo Tanui

2nd Petitioner

and

Alfred Kipkosgei Mure

1st Objector

Elicky Kiprotich

2nd Objector

and

Divina Chemutai Chirchir

Beneficiary

Basilisa Kebtip Rono

Beneficiary

Emily Jeptepkeny Chirchir

Beneficiary

Collete Chebet Chirchir

Beneficiary

Agnes Chepkemboi Chirchir

Beneficiary

Ruth Chelagat Chirchir

Beneficiary

Ruling

M/s Kamau Lagat & Co. AdvocatesMs. Emmanuel Kipkurui & Co. AdvocatesMs. Isaboke Bw’orina & Co. Advocates Background 1. It is trite law that a will is a legal declaration of the testator’s intention concerning his property which he desires to be carried into effect after his death. In the instant succession cause, there is prima facie evidence that the deceased Benard Kimurei Chirchir made such a declaration on 27th November, 2020. The executors petitioned to obtain probate for the Will buy the objectors Alfred Kipkosgei and Erick Kiprotich objected to the making of the Will by their late father. Hence the legal recognition of the Will as the Last testamentary by the deceased was being objected to by the Objectors requiring of this court to take Viva voce evidence regarding its genuineness and legality before this court. In order to address the completeness of this dispute a summary of the evidence from both the drafters and the objectors becomes of necessity.

The case for the Objectors. 2. DW1 – Mathew Chirchir on oath told this court that the deceased was his biological brother and in this proceedings he relies on the witness statement dated 18th July, 2024. It was his contention that LR Nandi/Baraton 351 was purchased in conjunction with his mother and the deceased. By virtue of that purchase, it was a co-ownership joint venture for the three shareholders and the deceased holding in trust. According to DW1, they have been using the land since it was purchased spanning a period of 50 years. In addition, DW1 told the court that there is also another parcel of land LR Nandi/438 which belongs to their mother whose succession cause is undergoing referenced as Succession 47 of 2018 at Kapsabet court. The objector further contended in his evidence that before the 2010 Constitution, the law never recognized the female or girl child as a beneficiary to succeed or be accorded any share of the estate. He denied that the deceased ever made any declaration in the form of a will to distribute his estate as alleged by the petitioners in this succession cause. The Objector in opposing the making of the Will by the deceased invited the court to find that there were many assets left out for distribution by the deceased rendering it suspect as a genuine instrument to distribute the estate as alleged by the Petitioners. In buttressing his evidence, the objector alluded to the ill-health of the deceased who suffered a stroke in 2015 which prompted him to be admitted at St. Luke Hospital on and off with a review at Kapsabet referral hospital. In the testimony of the objector, that was not the only condition suffered by the deceased, there were other elements like hypertension and diabetes. From his perspective, the witness in support of the objection stated that this is a scheme by the mother and her daughters in propounding a Will which did not meet the threshold of the law.

3. Next to this line of typology was the testimony of Alfred Murei who gave evidence on oath as a biological son to the deceased. In opposing the making of the will by his late father he alleged that the later years of his life were indicative of conditions of ill-health. He went further to state that there are three properties in contestation namely LR Baraton/ NO. 16, 26, 36 and 40 which are not included in the Will whereas there is probative evidence that the deceased used to pay the requisite rates as later as the year 2023. In addition, the objector explained to the court that besides the above properties there were other movables like tractors that were never part of assets distributed by the deceased in the alleged Will. According to the objector, notwithstanding those submissions on the inventory inclusion, the so called Will is a forgery for reason that it disinherited and discriminated amongst the three sons of the deceased. He therefore urged the court to declare the Will voidable and have the estate distributed as an intestate estate.

4. In a rejoinder to the objection to the making of a Will, the Petitioners adduced evidence of the following two witnesses:

5. On oath Karen Jerop Chesoo deposed as follows:a.That I am one of the subscribing witness to the Last Will of Benard Kimurei Chirchir the late of Nandi County deceased, the said will being now hereto. That the testator executed the said Will on the day of the date thereof, or in the attestation clause thereto, as the case may be), and the same now appears thereon, in my presence and that of Advocate Wilson Kiplagat Kalya the other subscribed witness thereto both of use being present at the same time, and we thereupon attested and subscribed the said will in the presence of the testator. She testified as follows regarding the Will dated 27th November 2020. b.That the Will is the true and original last written Will of the deceased Benard Kimurei Chirhcir who died leaving a valid written will dated 27th November, 2020c.That there is due execution of the Will dated 27-11-2020 in accordance with the standard formalities for execution set out in the Law and the signature on the Will is in the handwriting of the deceased.d.That the testator had knowledge of the Will dated 27-11-2020 at the time of its execution. That the contents of the Will dated 27-11-2020 were read over to, and explained to and appeared to be understood by, the testator immediately before the execution of the Will.

6. On the other hand, one Wilson Kiplagat Kalya on oath stated that he is one of the subscribing witnesses to Benard Kimurei Chichir the late of Nandi County. That the testator executed the said will on the day of the date thereof, by signing his name at the foot of every page and the same now appears thereon, in his presence and that of Advocate Karen Jerop Chesoo, the other subscribed witness thereto both of us being present at the same time, and they attested and subscribed the said will in the presence of the testator.

7. The instant Notice of Motion dated 6th August 2024, lodged by the Objector/Applicant, Alfred Kipkosgei Murei, concerns the estate of the late Benard Kimurei Chirchir. The application, brought under Sections 3A and 63(e) of the Civil Procedure Act and Rule 63 of the Probate and Administration Rules, seeks to challenge the authenticity of the deceased's will dated 17th November 2020. Specifically, the Applicant seeks the following orders:a.Spentb.That the copy of National identity card of the deceased and alleged original will dated 17th November, 2020 be submitted by the firm of Isaboke Bw’orina & CO. Advocates to this honourable court and be subjected to forensic document examination to investigate the signature, handwriting and prints and preferably the same be done by Director of the Criminal Investigation.c.That upon the examination the signature handwriting and prints of the alleged will and the national identity card of the maker of the will the investigative agency be allowed to file a report in this honourable court on its finding.d.That the objectors/applicants be and hereby granted leave to file additional documents in courte.Costs be provided for.

8. The application is anchored on grounds that:a.The objectors/applicants lodged a petition to this honourable court challenging grant of probate on 19th April, 2024. b.The Objectors/applicants objected to the will and impugned the deceased signature on the will.c.The objectors/applicants wish to seek the court’s indulgence in inviting a forensic document examiner to examine the signature of the deceased person alongside the deceased’s other signatures.d.The Objectors/applicants have alleged at times that the impugned will and signature is a forgery and the same ought to be ascertained to the ends of justice.e.The original will is not in the custody of the court and the same ought to be availed

9. The determination of this interlocutory question on the objection to the making of the will would not be complete without making reference to the oral evidence adduced by the Objectors as herein under summarized:

10. In response to the application, the Petitioners/Respondents filed a replying affidavit through John Kipchirchir Birgen who deposed that the objector’s application is frivolous. That the Objector’s efforts to impeach the Testator’s will have come to nought and has thus resorted to fishing expedition for evidence a process that is not allowed by law.

11. He also deposed that at the inception of the pleading a party ought to put forward the best available evidence for trial to avoid a scenario such as which the Objector finds himself in of imploring the court to aid him in the fishing expedition for evidence to support an unmerited and spurious motion.

12. That the objector’s belated filing of the motion is solely intended for the sole purpose of plugging in the gaps in his objection which has been caused by insufficient evidence. Further that the Objector has conducted the objection proceedings in an extremely casual manner by bringing the motion amidst testimonies of testimonies of witnesses and in fact when the witnesses for the pro-pounder of the will have already testified and closed their presentations. That the testimonies of the witnesses who attested the will to wit Mr. Wilson Kalya and Ms. Karen Chesoo remain unshakable and unimpeachable by the allusions of the objector of forgery which is criminal and calls for a higher threshold of proof that so far the object has failed hence the belated attempt of fishing expedition for evidence through the instant motion.

13. He contended that the objector has not or at all annexed to his motion if any the various specimen of signatures of the testator that are at variance with the signature of the testator in the will for verification if ever the court may grant the orders sought, thus indeed this only aimed at delaying and embarrassing the fair conduct of these proceedings. That the Civil Procedure Rules that guides these proceedings does not confer this honourable court with jurisdiction to determine the instant motion as the same does not fall within the purview and armpit of section 22 of the Civil Procedure Act and Order 11 of the Civil Procedure Rules and Rule 63 of the Probate and Administration Rules, which provision deals with matters discovery, interrogatories, production and admission of documents.

14. The Petitioner deposed that the objector’s motion ought to have been commenced by way of miscellaneous application hence the motion herein is an abuse of due process.

15. In response to the application dated 6th August, 2024, Emily Jeptepkeny Chirchir, who appeared on behalf of herself and five other beneficiaries as the 3rd beneficiary, filed a Replying Affidavit opposing the application for forensic examination of the deceased's will and national identification card. The deponent, being a female adult of sound mind residing and working in Nairobi County, Kenya, swore the affidavit having been duly authorized by the 1st, 2nd, 4th, 5th, and 6th beneficiaries.

16. Regarding the validity of the will, the deponent testified that her father died testate with a valid written will dated 27th November, 2020, wherein he appointed John Kipchirchir Birgen and Julius Kiprotich Tanui as Executors. She maintained that the will's validity is established through its proper execution, having been signed by Bernard Kimurei Chirchir (DCD) in the presence of two advocates: Wilson Kiplagat Kalya and Karen Chesoo.

17. In opposing the issue of forensic examination, the deponent presented several grounds. First, she averred that the will's authenticity has already been established through the sworn testimony of the attesting advocates. Second, she contended that the applicant failed to present any prima facie evidence of forgery that would justify forensic examination. Third, she maintained that such examination would cause unnecessary delay in the administration of the estate, prejudicing all beneficiaries.

18. The deponent further addressed the impossibility of examining the deceased's national identification card, explaining that Kenyan law mandates its surrender to the Registrar of Persons prior to the issuance of a death certificate. She characterized the application as a mere fishing expedition, seeking to use court process to explore unsubstantiated allegations of forgery.

19. Addressing allegations regarding the deceased's health condition at the time of executing the will, the deponent emphasized that no medical evidence had been presented to substantiate claims of ill health. She maintained that the will's execution was properly attested by two witnesses as required under Section 11 of the Law of Succession Act, both of whom could confirm the soundness of the deceased's mind and his voluntary execution of the will.

20. The deponent concluded by praying that the honourable court dismisses the application dated 6th August, 2024, with costs to the estate, on grounds that: the will has been verified and properly attested, there is insufficient evidence to warrant forensic examination, and the application appears intended to delay the fair and efficient administration of the estate. She characterized the application as unmerited, scandalous, frivolous, vexatious, and brought in bad faith.

21. At the time of drafting the instant decision, I only had sight of the Objector’s submissions which are summarized as hereunder:

22. Learned Counsel Mr Ego submitted on behalf of the Objectors that the objectors have challenged the original will of the deceased on grounds of forgery and deceit. In advancing this position, counsel relied on Section 109 of the Evidence Act, Chapter 80 of the Laws of Kenya, which places the burden of proof on anyone alleging forgery to prove their claims.

23. On the examination of the will, learned counsel argued that the purpose of having an examiner from the DCI is to provide expert evidence that would enable the court to determine the will's validity. In support of this argument, counsel relied on Section 48 of the Evidence Act, which provides for the admissibility of expert opinions in matters requiring specialized knowledge.

24. Learned counsel further submitted that in the instant proceedings, the objectors contend that the will was not prepared by the deceased and his signature was forged. To strengthen this position, counsel placed reliance on the case of In re Estate of Samuel Ngugi Mbugua (Deceased) [2017] eKLR, which established principles regarding allegations of forged signatures in wills.

25. On the examination of signatures, counsel argued that with a naked eye, even the signatures appear different. In support of this submission, counsel cited the case of Karanja and another vs. Karanja, which discusses the presumption of due execution in wills with attesting clauses.

26. Learned counsel maintained that it is trite law that the best evidence for examination purposes is always the original documents. On this point, counsel relied on the case of James Gitingu Wamagata & another v David Migichi Kageni [2015] eKLR.

27. Regarding additional evidence, counsel submitted that pursuant to section 3A and 63(e) of the Civil Procedure Act, the court has powers to make interlocutory orders to prevent the ends of justice from being defeated. In support of this argument, counsel relied on the guidelines provided in Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 others (2018) eKLR, which laid down comprehensive circumstances under which additional evidence may be admitted.

28. On the second issue regarding whether the applicants should be granted leave to file additional evidence, learned counsel submitted that pursuant to section 3A and 63(e) of the Civil Procedure Act, the Honourable Court has inherent powers to make interlocutory orders as may appear just and convenient to prevent the ends of justice from being defeated.

29. In advancing the argument for additional evidence, counsel placed reliance on the case of Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 others (2018) eKLR, which established several key principles governing the admission of additional evidence.

30. He urged the honourable court to grant the objectors leave to file the report once it is ready, emphasizing that the application aligns with these established principles for admitting additional evidence.

31. In conclusion, learned counsel submitted that the application is merited and is only meant to ensure justice is done to all parties in the estate of the deceased. Counsel prayed that the Honourable court takes cognizance of the application and allow the same with costs to the respondents.

Analysis and determination 32. The determination of validity of a will is among the most solemn duties that falls upon a court of probate. When allegations of forgery are raised against a testamentary instrument, the court must approach the matter with heightened scrutiny, as it touches not only on the sanctity of a deceased person's last wishes but also involves accusations of criminal conduct. The present application calls upon this court to examine whether the will dated 17th November 2020 was validly executed in accordance with Section 11 of the Law of Succession Act, and to determine whether the objector has discharged the heavy burden of proving allegations of forgery.

33. Section 11 of the Law of Succession Act sets out the formal requirements for valid execution of a will. It states:“11. 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.”

34. Section 11 establishes the fundamental requirements for creating a legally valid Will, mandating that the document must be in writing and signed at its conclusion by both the testator and a minimum of two witnesses who must be physically present during the signing ceremony. The Court holds a critical oversight role in this process, being obligated to examine any suspicious circumstances surrounding the Will's execution to ensure it represents the testator's genuine intentions, free from undue influence, coercion, or duress. Following the testator's passing, the executor assumes the responsibility of administering the estate, which encompasses three key duties: collecting all assets belonging to the deceased, settling any outstanding debts or liabilities, and ultimately distributing the remaining assets to the designated beneficiaries in accordance with the Will's provisions.

35. When forgery is alleged against a will that appears regular on its face with an attestation clause and witnesses' signatures, the courts have consistently held that there exists a rebuttable presumption of due execution under the principle of omnia esse riteatta. This principle was articulated in Karanja and another v Karanja [2002] 2KLR 22, where the court held that:“When the will is regular on the face of it with an attestation clause and signatures of attesting witnesses and the signature of the testator, there is a rebuttable presumption of due execution."

36. The burden of proving forgery lies squarely on the person making the allegation. As this involves an accusation of criminal conduct, the standard of proof required is higher than the ordinary civil standard of balance of probabilities, though not as high as the criminal standard of proof beyond reasonable doubt. This principle was established in Elizabeth Kamene Ndolo v George Matata Ndolo [1996] eKLR, where the Court of Appeal held:“We start by saying that it was the respondent who was alleging that the will was a forgery and the burden to prove that allegation lay squarely on him. Since the respondent was making a serious charge of forgery or fraud, the standard of proof required of him was obviously higher than that required in ordinary civil cases, namely proof upon a balance of probabilities; but the burden of proof on the respondent was certainly not one beyond a reasonable doubt as in criminal cases."

37. In examining allegations of forgery in testamentary documents, courts have emphasized that the mere assertion of forgery, without cogent supporting evidence, is insufficient to invalidate a will. In Fuller v Strum [2000] ALL ER 2392, the court articulated this principle clearly, stating:“While I recognize, that the standard of proof is in the civil standard on a balance of probabilities, it is well recognized that where a serious allegation like forgery is made, the inherent improbability of the event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event has occurred."

38. The courts have established that evidence of forgery must be approached systematically and with appropriate expertise. Mere visual comparison by laypersons is insufficient. As held in Asira v Republic [1986] KLR 227,“The most an expert on handwriting can properly say is not that somebody definitely wrote a particular thing but that he does not believe a particular writing was by particular person or that the writings are so similar as to be undistinguishable. It is the duty of a court to make an examination and satisfy itself whether the handwriting expert’s opinion can be accepted and the court cannot blindly accept such an opinion…The decision on handwriting, whether it is genuine or not, always rests with the Court…The art of comparing handwriting is no doubt one in which time and thought are given to the formation of letters and words, and therefore expert status may be accorded to a person versed in such comparisons. But as has been accepted in Wainaina’s case (Namaina v Republic [1978] KLR 11) such an expert is not able to say definitely that anybody wrote a particular thing. The reasoning is based upon the knowledge that handwritings can very easily be forged. Moreover a person may not write in the same style all the time. The expert is therefore faced with trying to analyze forged writing as well as disguised writing. In cases where there is a problem about the writing it is the duty of the court to satisfy itself after examination whether the expert’s opinion can be accepted and cannot blindly accept such opinion. In these areas of conflict, it is prudent to look for other evidence so that forgery can be excluded on the one hand, and mistaken identification excluded on the other."Having established these legal principles, this court must now examine whether the evidence presented meets the threshold for ordering forensic examination, while being mindful of its broader duty to ensure succession matters are conclusively determined.

39. In the present case, while the objector has raised questions about the authenticity of the deceased's signature on the will dated 17th November 2020, the court must balance two competing interests: the presumption of due execution and the need for conclusive determination of authenticity when serious allegations are raised. As established in Re Estate of Samuel Ngugi Mbugua (Deceased) [2017] eKLR:“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... The burden of proving forgery lies with the person alleging it."

40. The objector has not met the requisite threshold for proving allegations of forgery. The testimony of the attesting advocates remains unimpeached, and no concrete evidence has been presented to substantiate the serious allegations made against the will's authenticity. Indeed, the timing of this application, coming after the close of the propounder's evidence, suggests an attempt to shore up a failing objection rather than a genuine concern raised at the earliest opportunity.

41. Nevertheless, this court is mindful of its broader duty to ensure that succession matters are resolved with absolute finality. While the objector's evidence falls short of the standard typically required for ordering forensic examination, the court recognizes that allowing such examination at this stage may serve to conclusively settle any lingering doubts about the will's authenticity. This is particularly important given the substantial estate in question and the need to prevent future litigation that could destabilize family relations.

42. Therefore, while not persuaded by the merits of the objector's application, this court will exercise its discretion to allow forensic examination of the will. This decision is made not because the objector has demonstrated sufficient cause, but rather to ensure that all possible avenues of verification are exhausted before the will is admitted to probate. In doing so, the court aims to foreclose any future challenges based on allegations of forgery and ensure that the administration of this estate proceeds on the firmest possible foundation.

43. When examining allegations of forgery in the context of wills, the court must be mindful that signatures may naturally vary over time and circumstances. As noted in Rose Kaiza v Angelo Mpanju Kaiza (2009) eKLR, the acceptance by a witness that there were differences between signatures, along with an explanation for such differences, does not automatically lead to a conclusion that forgery has occurred. The court must look at the totality of evidence, including the circumstances surrounding the execution of the will and the testimony of those present. The Court of Appeal in the said case stated as follows:“We think the duty of the court in weighing the opinion evidence of an expert would be more onerous where such opinion is the only material for consideration, than where there is direct evidence on the author of the handwriting. In this case there was the evidence of the Land Registrar himself who swore that he signed the transfer. The acceptance by the Land Registrar that there were differences between some of his known and specimen signatures and the explanation given by him that he had an injury on his hand when he signed the impugned signature, hence the possible cause of the differences, was not, in our view, a confirmation that the document examiner was right and therefore his evidence ought to be accepted. The credibility of the two witnesses had to be weighed and on that the best judge was the person who heard and watched the demeanour of those witnesses. The Land Registrar was believed by the learned Judge on the basis of his credibility and we have no reason to interfere with that assessment.”

44. As noticed from the application the basic point for determination in this case is as to whether this court is justified to take the view that the WILL propounded by the petitioners is not genuine at this interlocutory stage to have it subjected for forensic analysis at the CID headquarters laboratory. Determination of this point, obviously revolves around he legal principals applicable to the making of a testamentary document like a Will as provided for under Section 11 of the Law of Succession Act, its proof and its acceptance by the court as a solemnly document that comes into operation after the death of the testator is of great significance to the beneficiaries who have a legitimate expectation to inherit the assets survived of the deceased. A Will or any portion of a Will the making of which has been caused by fraud or coercion or by any such importunity that has taken away the free agency of the testator is by law declared voidable. In making a case for the Will to be subjected to documentary scrutiny the objectors have submitted and averred in the respective affidavits that the execution of the Will and the making of it by the testator is surrounded by suspicious circumstances. It was highlighted by the objectors that the alleged signature of the testator is very shaky and doubtful in support of the propounder’ s case. It is therefore true that a caveat has been filed by the objectors alleging the exercise of undue influence, fraud, or coercion or non -disclosure of material evidence rendering it untenable as the last testamentary of the deceased. It is against this background I make a finding that no beneficiary would be prejudiced or suffer injustice if this court makes a declaration to have the propounder’s Will be examined by an expert who in turn will file the findings on the questionable documents.

45. Regarding the prayer for examination of the deceased's national identification card, I note the practical impossibility of such examination given that Kenyan law requires surrender of the ID to the Registrar of Persons upon death. Moreover, even if such document were available, its examination would be of limited probative value given the significant time gap between its issuance and the execution of the will. The court will therefore confine the forensic examination to the will itself. This limitation does not prejudice the objector's case, as the expert examination of the will's signatures should suffice for the purpose of authentication.

46. Accordingly, I make the following orders:a.The original will shall be surrendered to the Deputy Registrar of this court within 7 days of this ruling for safe custody and onward transmission to the Document Examiner at the Directorate of Criminal Investigations through the County Criminal Investigation Officer, Uasin Gishu within 10 days of this ruling.b.The administrators of the estate shall, within 7 days of this ruling, avail to the County Criminal Investigation Officer at least three original documents bearing the known signatures of the deceased executed between 2018 and 2020 for comparative analysis.c.The Document Examiner shall file a comprehensive report with this court within 30 from the date of receiving both the propounded will and samples of specimen signatures to be compared with the question of signatures in the impugned Willd.The costs of the forensic document examination shall be borne by the estate.e.A status conference shall be held on 11. 3.2025 for further directions based on the examiner's report.

47. Orders accordingly.

DATED AND DELIVERED AT ELDORET THIS 27TH DAY OF JANUARY 2025In the Presence ofMr. Orina Advocate for the ExecutorM/s Sang Advocate for Kamau for the BeneficiariesMr. Ego Advocate for the Objectors.……………………………………R. NYAKUNDIJUDGE