[2015] KEHC 7022 (KLR)
The court found that the applicant had provided unchallenged evidence, including affidavits from witnesses and a letter from the deceased's doctor, establishing that the deceased had full testamentary capacity in 2000 but suffered memory loss and diminished capacity from 2002 onwards. There was no evidence to the...
Source-derived case information.
- Citation
- [2015] KEHC 7022 (KLR)
- Parties
- Applicant: Solomon Njuguna Munyutu; Respondent: Estate of Ephantus Munyutu Waigi (Deceased)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 2732 of 2008
- Procedural Posture
- Succession Cause / Ruling on Application for Review of Grant Confirmation and Validity of Wills
- Outcome
- application granted
- Judges
- DN Musyoka
- Legal Topics
- Testamentary Capacity, Validity of Wills, Probate Review
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Solomon Njuguna Munyutu
Applicant
Estate of Ephantus Munyutu Waigi (Deceased)
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Review of Grant Confirmation and Validity of Wills
Legal Issues
- 1 Whether the deceased had testamentary capacity when executing the wills dated 12th January 2000, 24th November 2004, and 12th July 2007.
- 2 Whether the will dated 12th January 2000 is the only valid testamentary document.
- 3 Whether the grant was erroneously confirmed based on an invalid codicil.
Ratio Decidendi
The court found that the applicant had provided unchallenged evidence, including affidavits from witnesses and a letter from the deceased's doctor, establishing that the deceased had full testamentary capacity in 2000 but suffered memory loss and diminished capacity from 2002 onwards. There was no evidence to the contrary. The court concluded that the will dated 12th January 2000 was the only valid testamentary document, as the deceased lacked capacity to execute the 2004 and 2007 documents. The grant previously confirmed on the basis of the 2007 codicil was therefore erroneous. The application for review was granted in terms of the prayers sought, recognizing the 2000 will as the valid...
Court Disposition
application granted
Orders
- The will dated 12th January 2000 is declared the last valid will of the deceased.
- All subsequent wills and testamentary instruments dated 24th November 2004 and 12th July 2007 are declared invalid for want of capacity.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
FAMILY DIVISION
SUCCESSION CAUSE NO. 2732 OF 2008
IN THE MATTER OF THE ESTATE OF EPHANTUS MUNYUTU WAIGI- DECEASED
RULING
1. The summons dated 7th October 2013 asks me to review my orders of 27th June 2013 by declaring that the last valid will of the deceased is the one dated 12th January 2000 and that all the subsequent wills and testamentary instruments are invalid for want of capacity on the part of the testator.
2. The grounds upon which the application is premised are set out on the face of the application and in the affidavit sworn on 7th October 2013 by the executor, Solomon Njuguna Munyutu. He avers that the deceased had full testamentary capacity when he executed the will dated 12th January 2000. He however did not have testamentary capacity to execute the testamentary documents made on 24th November 2004 and 12th July 2007. Consequently, the only valid testamentary document is that executed on 12th January 2000, and his estate ought to be distributed in accordance with the said document. He avers that the grant on record was erroneously confirmed on the strength of the codicil made on 12th July 2007.
3. There are several other affidavits filed in support of the application by the persons who were party to the events surrounding the making of the testamentary documents of 2000, 2004 and 2007. They all attest to the fact the deceased had full control of his faculties in 2000, but that his mental capacity had deteriorated by 2003, and that he was not of the requisite capacity in 2004 and 2007 to make testamentary dispositions.
4. Attached to the affidavit of the executor is a letter from the deceased’s person’s personal doctor, one Samuel Nduhiu Gathua. In the letter dated 18th September 2013 he states that the deceased started to have problems with his memory as from November 2002.
5. The application dated 7th October 2013 is not opposed. There is no evidence to counter that presented by the executor in support of the application. Consequently, I do hereby grant the application dated 7th October 2013, in terms of prayers 1,2 and 3. Costs shall be in the cause.
DATED, SIGNED and DELIVERED at NAIROBI this 23rd DAY OF January 2015.
W. MUSYOKA
JUDGE