[2022] KEHC 15566 (KLR)

In re Estate of Benjamin Mwangi Mwaganu (Deceased) (Probate & Administration Appeal 1 of 2017) [2022] KEHC 15566 (KLR) (16 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15566 (KLR)

Republic of Kenya

In the High Court at Murang'a

Probate & Administration Appeal 1 of 2017

J Wakiaga, J

November 16, 2022

IN THE MATTERS OF THE ESTATE OF BENJAMIN MWANGI MWAGANU - DECEASED

Between

Patrick Ndungu Mwangi

1st Appellant

Peris Wanjiru Mwangi

2nd Appellant

Judy Nyambura Mwangi

3rd Appellant

and

Jacenta Waithera Mwangi

1st Respondent

Bernard Kiarie Mwangi

2nd Respondent

Edward Maina Mwangi

3rd Respondent

Alice Wanjiru Mwaura

4th Respondent

(AN APPEAL FROM THE JUDGEMENT OF HON. B.J. BARTOO AT THE CHIEF MAGISTRATE COURT AT THIKA IN THE SUCCESSION CAUSE NO 380 OF 2014 DELIVERED ON 22ND MARCH 2017)

Judgment

INTRODUCTION 1. Gabriel Mburu Mwangi and Alexander Mungai Karanja on the 6th day of August 2014 cited the appellants herein under rule 21 of the Succession Rules and on September 17, 2017 Patrick Ndungu Mwangi entered appearance and indicated that the petition was filed by one Jacinta Waithera Mwangi without their consent.

2. On the 21st day July 2015 grants of letters of administration were issued to Patrick Ndungu Mwangi and on the 5th day of August 2016 Bernard Kiarie Mwangi, Edward Maina Mwangi. Alice Wanjiru Mwaura and Jacinta waithera Mwangi filed an affidavit of protest to the confirmation of grant on the basis that the deceased had left a valid will in which he had distributed his estate.

3. In reply to the said letter of protest Patrick Ndungu Mwangi swore in an affidavit in which he deposed that the deceased owed only one property known as LR Loc 3 Gacharage /112 and that the deceased left a valid will on which he bequeaths the said property to Benjamin Mwangi Mwaganu.

4. It was contended that the other property named by the protestors did not belong to the deceased and were owned as follows:A.Thika Makongeni Block sss/ 4/190 Macharia KarikiraB.Thika Makongeni Block sss/4/ 315George MachariaC.Plot Gacharage market No 43 Patrick Ndungu Mwangi

5. By a judgement thereon delivered on June 22, 2017 the court found that land parcel number 315 had not been included in the will of the deceased and that there was no evidence that the deceased had bought land for the protestor Jacinta hence she did not get a share of the estate and relying on the decision of Rono V Jane Rono And Another included the said property to the estate and shared it equally between Jacinta waithera and Judy Nyambura.

6. Being aggrieved by the said decision the appellants filed this appeal and raised the following grounds of appeal as per the amended memorandum of appeal filed on the August 31, 2017 (DO).

7. Directions were issued that the appeal be disposed of by way of written submissions which were duly filed and on behalf of the appellants, it was submitted that the trial court erred by ignoring the will of the deceased in which he had bequeathed parcel No Loc 3/Gacharage/ 112 to Benjamin Mwangi, Mwaura Mwangi, Maina Mwangi, Patrick Ndungu Mwangi and Karie Mwangi and that Plot number 315 was given to Judy Nyambura Mwangi, Jacinta Waithira Mwangi and Gachoka Kiarie.

8. It was contended that the learned Magistrate instead of going by the will of the deceased wrote a new will contrary to the decision of the court in in the estate of Samuel Ngugi Mbugua [2018] EKLR to the extent that in construing the content of the will, the first principle is to discover the intention of the testatrix as stated therein.

9. It was contended that the learned Magistrate was obliged to ascertain the deceased intentions in the will and put herself in the deceased position at the time she made the will in order to understand the will and therefore in sharing Plot No 315 between the 3rd appellant and 1st respondent the court disregarded the deceased will.

10. On behalf of the respondent it was submitted that the court distributed the estate in tandem with the will in which the deceased desired that the dependants be catered for in support of which the case of Re Bailey [1951]CL407 was tendered. It was contended that no provision was made for Peris Wanjiru Mwangi because she had been given property elsewhere and that the will was not challenged by the appellants.

Determination 11. This being the first appeal, the court is under a duty to relook at the evidence tendered before the trial court and to come to its own conclusion thereon.

12. At the trial before the lower court PW1 Patrick Ndungu testified that the deceased left eight dependents and that he had divided his land amongst his sons and that he left a valid will. The protestor Jacinta testified that the deceased left a valid will which was translated and that there was a property which was not included in the will which should be divided equally.

13. It is not in dispute that the deceased left a valid will in which he expressed his wishes and that the said will was never challenged by any of the beneficiary and therefore the only issue for determination in this appeal is whether the trial court gave effect to the intentions of the deceased.In the said will the deceased in respect to Plot No 315 bequeathed the same to Gachoki Kiarie, Waithira and Nyambura and therefore the trial court had no business in removing Gachoki Kiarie in the said distribution as even if the same was deceased as at the time of the judgment, her estate was entitled to the same. To remove her name as the trial court did, would have amounted to rewriting the will which is not the role of the court, which was clearly stated in the case of Re Estate Of Lusila Wairu Waweru(deceased) [2020] EKLR where the court quoted with approval Re arthur (deceased) abakah & another v attah hagan & another [ 1972] IGLR 435 there exist substantive complexity for the court to vary or set aside the will made by a testator. The court remarked as follows:“What should be borne in mind is that whatever a will is granted, the court is not giving its blessings and support to all the contents of the will. The court is only expressing its satisfaction that the will has been validly executed and that the named executors are at liberty to administer the estate. The court should be extra ordinarily show in interfering with the will of a deceased person because the will constitutes hallowed granted and no one should tread upon it. If the court decides to interfere, it does not expunge anything from the will, if it decides to omit anything on the will known grounds, the omission is made in the probate and not in the will itself. For instance, the court will exclude from a will any words introduced into the will by mistake without the instructions or knowledge of the testator.The court may exclude from the probate and from registration words of atrocious, offensive or libelous character and it will exclude words of a blasphemous character.”Tinkering with the testators will and the streams of evidence on inclusion and exclusion of the power to bestow it upon death or during her lifetime forms the cycle of this discussion. It has been contended that by the applicants herein that in disposing the assets in the will, some of the beneficiaries were left out and the actual assets were never ascertained in the stipulated last will and testamentary. The first schedule pursuant to section 22 of the Law of Succession encompasses 78 rules of construction of wills based on basic principles. It is clear from this schedule that in order for the court to give effect to the validity or invalidity of the will, it must satisfy itself that the intentions and objector of the testator in making the will would not be defeated by any misinterpretation that produces prejudice or injustice to the wishes of the testator.

14. In regard to Loc 3/Gacharage/122 which I assume as per the will the deceased called land parcel at Githima it was the intention of the deceased that the same be divided into three shares to 1 Benjamin Mwangi 2 Mwaura Mwangi and 3 Maina Mwangi.

15. Having looked at the will produced before the trial court and which has not been challenged as stated herein, it follows that in distributing the estate herein the court fell into error by attempting to rewrite the will in his own terms and therefore find that the appeal herein has merit which i allow by setting aside the judgement of the trial court and substituting the same with distribution as per the will herein.

16. This being a family dispute, each party shall bear their own cost and it is ordered.

DATED SIGNED AND DELIVERED AT MURANGA THIS 16th DAY OF NOVEMBER 2022. J. WAKIAGAJUDGEIn the presence of:-