[2013] KEHC 7002 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

FAMILY DIVISION

SUCCESSION CAUSE NO.1298 OF 2011

IN THE MATTER OF THE ESTATE OF GKK (DECEASED)

RULING

Introduction

1. The deceased herein, GKK. He died on 21st December, 2010 at a hospital in Sandton, Johannesburg, South Africa.

2. The late GKK was a polygamous man. He had been married to the late AW with whom he had seven children namely; M, W. G, R, M, A and S. He had also been married and later separated with GW with whom he had two children namely; I and S. At the time of his death, he was married and living with TW and had four children with her; A, F, S and E. The deceased was alleged to have died testate, leaving behind a written Will dated 10th September 2010 and allegedly another one dated 20th July 2006 and a Codicil dated 6th May 2008. In the Will dated 10th September 2010, AWK, JNK and SNK were allegedly appointed as Executors thereof. In the Will dated 20th July 2006, SN, AW, JNK and CWA were allegedly appointed as Executors thereof.

3. On 17th May 2011, AWK and JNK, who were named as the Executrix and Executor respectively of the Will dated 10th September 2010 Petitioned the High Court for a grant of letters of Administration ad colligenda bona for the Estate of GKK. The Grant was stated to be limited and only for the purpose of collecting, getting in, receiving and managing the estate and doing such acts as may be necessary for the preservation of the said estate pursuant to the deceased's last Will and Testament dated 10th September 2010 until further representation is granted inSuccession Cause No.193 of 2011.

4. Similarly, on 19th May, 2011, SNK, SK and CWKA Petitioned this Court for a Grant of the Letters of Administration ad colligenda bona of the deceased's estate pursuant to the deceased's Will dated 20th July 2006 and Codicil dated 6th May 2008 until further representation is made in Succession Cause No.1298 of 2011. In both Petitions, the Applicants claim to present the Petitions in their capacity as Executors and Trustees of the deceased's estate and undertook to faithfully administer the estate in accordance with the law.

5. On 11th October 2011, Maraga J (as he then was) recorded a consent wherein the parties agreed to consolidate the two Petitions with Succession Cause No.1298 of 2011 as the parent file. Subsequently, on 10th January 2012 and after hearing all the parties and interviewing the beneficiaries present, it was agreed inter alia that the issues for determination at this stage would be the following;

“(i) To probe the two Wills on record so as to determine;

(a) their authenticity and legality,

(b) what the estate of the Late GKK is comprised of,

(c) the Executors of the Will,

(ii) all other issues regarding the estate shall await the outcome of the Probate of the Will”

6. This Ruling is therefore limited to the determination of the validity of the two Wills of the late GKK. The first Will is dated 20th July 2006 and the Codicil thereto is dated 6th May 2008. This Will is what the parties refer to as the “Kahari Will” as it was drawn by r. Joseph Kahari of M/S. Kahari & Kiai Advocates. The second Will and allegedly the Last Will of the deceased is dated 10th September 2010 and was executed in London and was drawn by M/S. Rachier and Amolo advocates. For ease of reference, I will refer to the Wills as the “Kahari Will” and the “London Will”, respectively.

7. At the hearing, PW1, Joseph Kahari, PW2, Bernard Mbatia, PW3, Ruth Kawila Nzovya, PW4, Samson Wanyoike, PW5, Elizabeth Ndunge Philip, PW6, Dr. Peter Muriuki Ndegwa, PW7, Fred Mochama Otwabe, PW8, ANK and PW9, TWK testified in support of the Kahari Will. DW1, Mohammed Izzat Ali, DW2, Dr. Joseph Aluoch, DW3, Owen Thomas Lowry, DW4, Ambrose Rachier, DW5, Emmanuel Kenga and DW6, Dr. Moses Njue testified in support of the London Will. I also received oral evidence from members of the K Family who were acting in person namely MK, RN and CN.

Factual Background

8. The facts as I perceive them are that the deceased was taken from his Kitisuru home by his children, M, W, G, R, M, A, S and I on 8th August 2010. Prior to that he had been sickly of diabetes for over 40 years and he had also lost sight in one eye and had about 40% vision in the other eye.

9. He had allegedly not seen the above mentioned children for over two years as they had been denied access to their father as well as his residence. A video footage shot on 2nd and 3rd August 2010 and titled “Break-in” was played in Court and admitted in evidence. It detailed what transpired on 2nd and 3rd August 2010 outside the residence of the deceased as these children tried to gain access thereto.

10. The said children of the deceased only gained access to the residence on 3rd August 2010 after breaking in forcefully, even through the residence was being guarded by Administration Police Officers. Several hours after they gained access, they broke into their father's bedroom and the evidence on record also reveals that AWK called in Dr. Joe Aluoch (DW1) who carried out a brief medical examination of the deceased and certified that he was in need of medical attention as he had allegedly been neglected medically and physically. Despite the alleged examination by Dr. Aluoch, the children were unable to take their father to hospital because TW allegedly summoned the Nairobi Provincial Police Commissioner who chased away the doctor and restrained them from taking away the deceased.

11. Again, on 8th August 2010, the children of the deceased as stated elsewhere above, forcefully gained access to their father's residence and took him to Nairobi Hospital where he was admitted in the name of “John Juma”. He stayed in Nairobi Hospital for about 7 days before he was discharged on 15th August 2010 and flown to the United Kingdom on the same day for specialised treatment on the advice of Dr. Aluoch who accompanied him. At the United Kingdom, the deceased was allegedly admitted at Wellington Hospital, London on 16th August 2010 and Dr. Aluoch in his testimony, claimed that he used to visit him everyday while he was so admitted. Thereafter, the deceased was allegedly discharged from Wellington Hospital and went to stay at 77, Heathwood Gardens, Cartons, London and this is the address at which he allegedly executed the London Will.

12. Prior to the making of the making of the London Will, it is also alleged that the deceased had executed the Will dated 20th July 2006 and the Codicil thereto dated 6th May 2008 which had been preceded by the establishment of the K Trust in the names of the “The Registered Trustees of K Trust”. This Trust had been incorporated on 12th November 1996 with GK and Kenya Commercial Bank (KCB) as Trustees. Subsequently, upon the closure of the KCB Trust Department around 2002, the deceased amended the Registered Trustees of K Trust on 2nd September 2003 and included some family members, namely JN, AK, FK and SNK as Trustees with the latter being an alternate to FK

The Beneficiaries Submissions

Submissions on behalf of WK

13. WK is the eldest son of the deceased. He was born of the late AW and GKK. He supports the London Will. W takes issue with the Kahari Will for various reasons. First, he claims that the attestation of the Codicil to the Kahari Will dated 6th May 2008 was not in accordance with Section 11 of the Law of Succession Act (Cap 160) because it was witnessed by PW5, Elizabeth N. Philip who was allegedly called to do so way after the deceased had left Mr. Kahari's office. He referred the Court to the decision In the Matter of the Estate of Onesmus Ikiki Waithanwa, Nyeri HCSC 194 of 2000, Brown v Skirrow (1902) p 3 and Re Colling (1972) 1 WLR 1440where it was held that a witness must attest the execution of the Will by the testator.

14. He further claimed that at the time of executing the Codicil the testator was locked up in his home in Kitisuru and as such he lacked the free will to bequeath away his property. He takes issue with the fact that the Will is in favour of the third house and to the detriment of the other two houses and also that it was prepared at a time when the deceased was kept away from his other family members especially the children of the late AW and who had been denied access to their father. He alleged that the video evidence shown in Court demonstrated that some of the deceased's children viz; W, M, G, R, W, A, S, S and I and some of their spouses had to endanger their lives so as to gain access to the deceased and to have him treated in hospital. He claimed that at the time, the deceased was in such a bad state of health that he could hardly walk thus raising more suspicion on the circumstances under which the Kahari Will was drawn. He referred the Court to the case of Julius Wainaina Mwathi v Beth Mbene Mwathi Civil Appeal No.123 of 1992 where the Will was held to be invalid having been drawn by a testator who was quite ill.

15. It was his further submission that the fact that the execution of the alleged Codicil was attested by the deceased's bodyguard, a caretaker, a clerk at his office and his lawyers' receptionist raises suspicion because the deceased enjoyed social standing in the society and ordinarily his closest friends such Hon. CN and Hon. MK would have been the ones to attest the execution of the said Will.

16. He stated that the London Will must be seen to depict the last wishes of the deceased as it does not bequeath property to any of his beneficiaries but instead establishes a trust known as the “K Trust” with three trustees namely, AWK, SNK and JNK with AWK as the Chairperson of the Trust. He contends that the fact that AWK was the one of the few persons taking care of the deceased in his last days in England cannot affect the testamentary capacity of the Testator since she did not in anyway participate in the preparation of his last Will.

17. He further claims that from the evidence of Dr. Aluoch, it is clear that the testator had the capacity to make a Will as he was taken through a physical and mental test to ensure he was of proper mental and physical capacity to execute the said Will. He claims that from Mr. Kahari's testimony it is clear that the testator was of sound mind because he even requested Mr. Kahari to travel to London but the latter was unable to do so because he lacked a visa to enable entry into England.

18. It was Mr. Wanjau's position that pursuant to the provisions of Section 18(1) of the Law of Succession Act, a second or subsequent Will revokes all former Wills, and therefore the alleged Kahari Will was automatically revoked by the London Will drawn on 10th September 2010.

19. It was also his position that the testator had a sound mind, sound memory and sound understanding of all issues at the time of executing the London Will and that the Objectors to this Will have not adduced any evidence to demonstrate that he lacked testamentary capacity while executing it as required by Section 5(4) of the Law of Succession Act. He submitted that the Objectors failed to controvert the evidence of Dr. Aluoch as to the soundness of mind of the testator. He claims that the fact that the testator was in a medical facility was not sufficient to prove mental incapacity. He relied on the case of Banks v Goodfellow (1870) LR. 5 O.B.549 and In the Estate of Syevrose Mukulu Machakos HCSC No.198 of 2005 in support of that proposition.

20. As to the presence of other beneficiaries in London where the Will was executed, Mr. W submitted that there is no known provision of the law that renders a Will or any other testamentary instrument invalid for reason of beneficiaries being present at the time of its execution. It was his submission that even that had been true, beneficiaries are even allowed by the law to attest the execution of a Will so long as their signatures are attested to by two other independent witnesses. He claims that in this case, Mr. Rachier and Dr. Aluoch clarified in their testimony that at the time the Will was made, none of the beneficiaries were present in the room.

21. With regard to the issue of AWK influencing the deceased in the making of the London Will, Mr. W submitted that no inference was proved merely because Ann has also been mentioned in all the Trust Deeds that existed and she was also in both the Kahari and London Wills which could only mean that the deceased trusted her enough to oversee his estate. He claims that the Objectors have failed to prove that she indeed induced or coerced the testator to make dispositions that he did not intend to make. He claimed that even if Ann had influenced the making of the London Will, that fact would not in itself invalidate that Will. He relied on the case of Wingrove v Wingrove (1885) 11 P.D. 81 where it was held that all influences are not unlawful and persuasion may be legitimate but the testator must not be driven since the Will must be the offspring of his own volition and not the record of someone else.

22. It was his further submission that the Trust Deed is and remains a valid instrument as per the instructions of the settlor/deceased, since he instructed Mr. Rachier to draw a Will which was inaccordance with the Trust Deed and he indeed adopted the Trust Deed. He claims that from both the Trust Deed and the London Will it is clear that the testator wanted to establish an education fund which would ensure his grandchildren and great grandchildren and generations to come were well educated. He also did not wish to distribute his estate and that why he established the K Trust which would provide for the management and investment of his wealth. That the Kahari Will which in essence distributes the Estate raised serious doubts as to its validity and that following Section 12 of the Law of Successions Act, the Trust Deed forms part of the London Will as it did not do away with the K Trust unlike the Kahari Will which did so.

23. With regard to the issue of the London Will being executed outside Kenya i.e. in England, it was his submission that the same was duly stamped in accordance with Section 23of the Stamp Duty Act, (Cap 480) and registered by the Registrar of Documents and therefore it is valid and ought to be recognized under Kenyan law.

24. He concluded by urging me to find the London Will as the last Will and Testament of the deceased.

Submissions on behalf of MWK

25. M is the daughter of GKK and the late AW. She supports the London Will. It was her position that the locking up of the deceased for two years at Kitisuru was a wider scheme by TW and her children to defraud and deplete the deceased's estate. She claims that SN included himself as a partner in K & Sons partnership and TW incorporated K and Sons Ltd, in which she was registered as a partner and thereafter transferred to the company, properties of the deceased such as L.R No.7106/2, without his consent.

26. She claims that from the very beginning, the deceased always intended that her sister AK, to have a major role to play in the K Trust as can be seen from the description of SN and FK who are referred to as either/or i.e. alternates to each other in the affairs of the Trust. She stated that under the Trust, A was answerable to all the beneficiaries and her co- trustees and so her powers were deliberately restrained. She claims that executors ought to be persons who can be trusted and the fact that A has experience in property management and was regulary consulted by the deceased in matters regarding his assets, would mean that she would be the most suitable to be trusted to oversee the estate of the deceased. She therefore claims that due to the close relationship A enjoyed with her father, he trusted her and knew she would diligently deal with his estate. In any event, that from the provisions of the London Will, it is clear that Anne does not stand to derive any personal benefit from the estate.

27. She further claims that the London Will is in accordance with the Trust Deed and the deceased's intention was to have all his assets transferred to the Trust aforesaid.

28. It was her further submission that none of the nine witnesses who testified for the Kahari Will adduced evidence that the deceased was of unsound mind or lacked the capacity to make the London Will. She referred the Court to the findings made in the case of Banks v Goodfellow (supra), where it was held that an objector must prove that the testator lacked the mental capacity to make the Will.

29. She also claims that the Objectors have the burden of proving that the deceased was coerced into making the London Will and she relied on the case of Wanjau v Wanyoike & 4 Others, where it was held that the burden of proving suspicious circumstances lies on the person who is challenging the validity of a Will. And also that in the case of Atter & Others vs Atkinson & Anor HCC No.147 of 1980 it was held that when it is proved that a Will was read to a testator and he put his signature on it, he must have known what he was signing.

30. Further, That the Wills of 20th July 2007 and the Codicil of 6th May 2008 do not indicate which law firm drew them and that it is likely that the same were not drawn by Mr. Kahari, PW1.

31. She also asserts that Bernard Mbati one of the witnesses who testified the Kahari Will did not attest to the signing of all the pages of the Will by the deceased because he testified that he only saw him sign the one page of the Will and she therefore questioned the point at which the deceased signed all the other pages of the Will including the last page thereof.

32. With regard to PW2, Ruth Kawila Nzovya, it was M position that she was not a competent witness to that Will as she admitted in cross-examination that she did not know at the time that she was signing a Will but only came to learn of it later. Further, it is unclear whether the deceased signed it while she was present.

33. She also claims that the Codicil to the Kahari Will was also not properly witnessed as it did not conform to Section 11 of the Law of Succession Act because SW and EN who attested its execution confirmed that they did not know at the time of signing it that they were signing a Will or a Codicil to it.

34. It was her further position that the Codicil and the Kahari Will must be fake and viewed with suspicion because she, her siblings and those of the 2nd house had not seen the deceased for over two years and that he had not visited the offices of K and Sons Ltd for those two years having been locked up by TW. She claimed that her father must have been held at Kitisuru against his free will because in the re-union of 2nd August 2010, he is heard on the video recording asking his children why they had abandoned him and failed to visit him for that long. She also disputes the claim by AK that he had resigned from active politics and alleged that her father could not retire without informing his children especially A who was his confidant and his sons W and S who worked with him at K and Sons Ltd of that kind of decision. She therefore urged me to reject the Kahari Will in its entirety.

Submission on behalf of Professor Bishop JG

35. Professor Bishop JG is the third born child of the late GKK and the late AW. She is also in support of the London Will and claims that at the time of making the London Will, the deceased was on sound mind and this is clear from the deceased\\\'s actions of requesting Dr. Aluoch to get him a reputable lawyer who would write him a Will. He was thereafter introduced to Mr. Rachier Advocate whom he called personally and instructed him to prepare his last Will and Testament by adopting the K Trust Deed. Consequently, Mr. Rachier drew the Will and the deceased requested him to travel to London so that he would execute the same. He travelled on 8th September 2010 and he was introduced to Mr. GKK on 9th September 2010 by Dr. Aluoch. She claimed that it was clear from the evidence of Mr. Rachier, DW4, that when he read the draft Will to Mr. GKK, the latter was alert as he requested him to make some amendments to the draft Will which he later made and returned to his residence, Heathwood Gardens, on 10th September 2010 and the deceased. Thereafter he executed the London Will, and she submitted that the Objectors have failed to provide evidence to rebutt the soundness of mind of the deceased at the time of making the London Will as provided for by Section 5(3) of the Law of Succession Act. She also submitted that they failed to provide evidence that the London Will was executed by fraud or coercion and in the absence of such evidence the London Will remains the last Will and Testament of the deceased.

36. It was also her position that the Objectors have failed to show any suspicious circumstances around the making of the London Will so as to invalidate it. She claims that there are no suspicious circumstances in any since there are no beneficiaries under the London Will but that all the property is to be dealt with in accordance with the Trust Deed which had been incorporated many years before its execution.

37. She further submitted that the deceased had knowledge and approved the London Will as his last Will and Testament, because he was the one who contacted Mr. Rachier to have the Will drafted and the testator was not coerced or unduly influenced by anyone. She claimed that the testator executed the Will in the presence of Dr. Aluoch and Owen Lowry, DW3 who attested the execution and signed the same in the presence of the testator in accordance with Section 11 of the Law of Succession Act.

Submissions on behalf of MNK

38. M is the eldest daughter of the deceased and the late AW She supports the London Will.

39. She claims that the testator was mentally fit at the time of making the London Will and it was her submission that Alice Njeri, PW8, corroborated the evidence of Dr. Aluoch, Mr. Rachier and Owen Lowry on the health status of the deceased when she stated that his health was fine and she spent time with him everyday. In any event, she alleged that there was no evidence that was rendered to the contrary.

40. Maria submitted that the testator executed the London Will out of his free Will and without pressure form anyone. That even though AK was fully involved in the travel arrangements and hospitalisation of the testator, there is nothing specifically bequeathed to her except that she was appointed as one of the executors and trustees in the Will. She relied on the case of Atter & Others vs Atkinson & Anor (supra) and Wanjau Wanyoike & 4 Others vs Everest Wanyoike Njubi Waweru, HCCC No.147 of 1980 where it was held that the burden of proving that suspicious circumstances exist lies on the person challenging the validity of a Will.

41. It was also her submission that the writing and execution of the London Will conformed with the provisions of Section 16 of the Law of Succession Act and it must be construed in accordance with the Kenyan laws because the testator was domiciled in Kenya and all the properties subject of the Will are situated in Kenya.

42. It was M further submission that in the event the London Will failed, then the deceased must be deemed to have died intestate because the Kahari Will was not properly executed. This is because in her view, Ruth Kawila Nzovya, Samson Mwangi Wanyoike and Elizabeth Philip who allegedly attested the Kahari Will and the Codicil dated 6th May 2008 respectively, claimed in their testimony that they learnt later after signing that they had signed a Will and did not know what they were executing. Maria submitted that the attestation of the Kahari Will and the Codicil was therefore contrary to Section11(c) of the Law of Succession Act and the London Will should be upheld.

Submissions on behalf of AWK

43. AW is the 5th born daughter of AWW and GKK All the beneficiaries agreed that she enjoyed a cordial relationship with her deceased father and the evidence on record indicates that the deceased would consult her from time to time on matters regarding his properties. She supports the London Will.

44. She submitted that while the London Will complied with the statutory requirements enumerated under Section 11 of the Law of Succession Act in making a valid Will, the Kahari Will failed to comply with the requirement of attestation of execution by at least two competent witnesses. She claimed that the two individuals who allegedly attested the execution of the Kahari Will, Bernard Mbatia and Ruth Kawila Nzovya, were incompetent to act as witnesses within the meaning of Section 11 of the Law of Succession Act.

45. It was Anne's submission that the objectors to the London Will failed to prove that the testator lacked the requisite testamentary capacity to make a valid Will. She claimed that the propounders of the London Will were able to prove that the testator had the mental capacity to make the Will and she relied on the evidence of Dr. Aluoch who testified and explained to the Court the tests he performed on the deceased to prove his mental capacity. She also relied on the video evidence showing the deceased singing with a section of his family (including herself) which was adduced by DW1, DW2, DW3, DW4 and DW5 to prove that the testator had the requisite testamentary capacity to make the London Will.

46. It was A position that the Kahari Will had been vitiated by undue influence, suspicious circumstances, fraud and lack of knowledge of approval for various reasons; First, that the Codicil bequeathing TW most of the valuable assets belonging to the deceased was done shortly after the death of the deceased's first wife at a time when the testator was locked incommunicado by TW and was prevented from meeting with any of his children with his deceased wife. Secondly, she took issue with the witnesses who attested the Kahari Will as they were illiterate people who did not understand the import of their signatures and that it would have been unusual for the testator to pick them as his witnesses given his social standing in the society. Thirdly, that the drawing of Kahari's Will in his office and being witnessed by his Secretary raises suspicions. Fourthly, that the deceased was captured on video while in London claiming that he had previously been coerced and forced to sign various documents including Wills, transfers of properties and/or power of attorneys in respect of his properties. Lastly, she claimed that the disconnect between the deceased's long standing and conviction, that upon his death his property should not be distributed directly to his children but be transferred into a Trust created for the benefit of his children and grandchildren, and the Kahari Will, raises suspicions.

47. As regards the London Will, she submitted that even if she was instrumental in assisting her deceased father prior to and after execution of that Will, her involvement did not amount to undue influence so as to invalidate it.

48. She claims that the Trust Deed of the K Trust incorporated in 1996 forms part of the London Will as provided for by Section 12 of the Law of Succession Act.

49. On the issue of the London Will being an English Will, Anne submitted that the Will is Kenyan and must be construed in accordance with Kenyan laws because while the deceased was domiciled in Britain at the time the property forming the subject matter of the Will is situated in Kenya and she claims that even if it was drawn by Mr. Rachier who is not entitled to practise law in the United Kingdom, that fact alone cannot vitiate the Will because there is no legal requirement that a Will must be drawn by a lawyer. In any case it was witnessed by Owen Lowry who is licensed to practise law in England and she claims that the beneficiaries under the Will are the K Education Trust which is yet to be created as well as the K trust which is in existence. She prays that the London Will be upheld.

Submission on behalf of GWK, SKK and INK

50. GW is the second wife of GKK . At the time of his death they were separated. S and I are the children born of the marriage and they all support the Kahari Will as the last Will and Testament of the deceased.

51. They claim that the Objectors of the Kahari Will failed to lead evidence challenging the capacity of the witnesses, Bernard Mwangi and Ruth Kawila Nzovya to attest the same. They further assert that at the time of making that Will, the testator had the necessary mental and testamentary capacity to do so. Further that the making of that Will was not caused by fraud or coercion or by any circumstances that would take away the free agency of the testator.

52. They allege that in any event, the deceased would not have been in a state to give instructions to Mr. Rachier to prepare the London Will because he had been abducted forcefully from his home in Kitisuru on 8th August 2010, and admitted at the Nairobi hospital up to 15th August 2010 when he was flown out of the country only to be admitted at the Wellington Hospital, London. They therefore submit that the deceased could not have possibly given instructions to Mr. Rachier on 16th August 2010 to revoke the Power of Attorney and prepare his last Will and testament. They also question the possibility of the deceased having gotten quickly close to his doctor, Dr. Aluoch whom he had not known before so as to request him to find him a lawyer. They relied on the case of Julius Wainaina Mwathi v Beth Mbene Mwanthi & Anor Civil Appeal No.123 of 1992 where a grant was revoked on grounds of suspicion alone.

53. They also question the circumstances under which the deceased executed and prepared the London Will which began with his forceful removal from his home, hospitalisation in Nairobi Hospital and later his being taken away to the United Kingdom, the handling over of the Trust Deed to Mr. Rachier by AK and Mr. Rachier's trip to London leading to the London Will. They also question the presence of AK and GK in the room when the deceased was executing the Will and they particularly take issue with the involvement of AK because she was allegedly the one who delivered the Trust Deed to Mr. Rachier in Nairobi, flew together with Mr. Rachier to London and were both booked at the Hilton Hotel in London. She was also present at the meeting between Mr. Rachier and the deceased and also accompanied Mr. Rachier to the Hilton Hotel in London. Where amendments to the Will were made at the hotel's Business Centre. The fact that she was named as one of the executors and the Chairlady of the K Trust was telling in their view. They referred the Court to the case of Wintle v Nye (1959) 1 ALL ER 552 where a Court invalidated a Will in which the Solicitor who prepared it was a substantial beneficiary and also relied on Vijay Chandrakant Sha v The Public Trustee, Civil Appeal No.63 of 1984 where it was held that it is the duty of the Court to scrutinize the evidence of the propounder vigilantly and jealously if he is the principal beneficiary.

54. They further claim that the London Will does not specify the means by which the estate of the deceased is to be applied which is in contravention of the requirements set out under the Law of Succession Act. They relied on the case of Chichester Diocesan Fund & Anor v Simpson & Others (1944) AC 341 where it was held that a Testator cannot leave the disposal of his estate to the discretion of others and they also submitted that the London Will would be invalid for having made a bequest to a non-existent beneficiary;the K Education Trust. Further, that it would be an invalid Will for failure to leave anything for the beneficiaries, since the K Education trust was to get 20% of the Estate and the K Trust for investment 80%. They claim that it would be suspicious for the deceased to disinherit his wife of 40 years, TW and a physically handicapped child, E, who later died in the course of these proceedings.

55. They also questioned the London Will as having attempted to modify the provisions of the Trust Deed by substituting Clause 4(4) which provides that the 1st Chairman of the Trust would be the deceased, the 2nd Chairman would be JNK and subsequently the Trustees would elect a chairperson from among themselves. That the London Will appoints AK as the Chairman of the Board of Trustees of the Trust Deed and that both Anne and James have the powers to change Trustees which is allegedly contrary to Clause 4(7) which provides that the settlor has the power of appointing new trustees. They further submit that the London Will has departed from the Trust Deed and should be nullified as provided for by Section 8 of the Trustees Perpetual Succession Act, Cap 164 which provides that any Will affecting the Trust shall be subject to the Trust Deed and unless approved by the Minister, any variation to the operation of the Trust must be deemed illegal.

56. They also submit that the London Will having been prepared by Mr. Rachier in Kenya and amendments, execution and attestation done in the United Kingdom was qualified to be an English Will thus subject to English law. They also claim that it is fatal not to submit that Will to the English law requirements of propounding a Will.

57. They add that the London Will also failed to take into account recent bank accounts operated by the deceased being Account No.271640452, Kenya Commercial Bank, University Way and an unnumbered Account with CFC Bank, Chiromo Branch. It also erroneously contained Account No.031094988 which the deceased had closed well over 10 years ago before his death. It also contained in the schedule of properties, L.R. Nos.209/7106/2, 209/11415, 209/6057, 7785/40, 209, 49/2/ 209/5639, 209/21/576,209/1584/1. 209/2152/2 and L.R. No K227, Umoja, which did not belong to the deceased at the time. They seek that the Kahari Will be upheld for the above reasons.

Submissions on behalf of Teresiah Wairimu

58. TW is a widow of the deceased and was the one living with him prior to his death. Despite being the surviving spouse of the deceased, she did not participate in the plans for hospitalisation of the deceased both at Nairobi Hospital and the Wellington Hospital in London and later in South Africa. She was also not involved in arrangements for the preservation and transportation of the deceased's body to Kenya. She supports the Kahari Will.

59. She claims that the London Will is suspect, unreliable and void for its failure to make adequate provisions for the three “Houses” of the deceased. She submitted that since the Will has failed to provide guidelines as to the distribution of the deceased's estate, it cannot be valid. That by its operations, all the properties of the deceased have been transferred to the K Trust thus placing the entire estate at the sole discretion of AK who is the Chairperson of that Trust. She relied on the case of Ndolo v Ndolo Civil Appeal No.128 of 1995 1 KLR (G&F) 742 where it was held that the deceased was entitled to dispose of his properties as he pleased, but he was not entitled to leave his first two wives without reasonable provision for their maintenance. She therefore urged me to consider interfering with the unfettered discretionary powers conferred on a testator by Section 5 of the Law of Succession Act.

60. She submitted that she had discharged the burden of proof contemplated by Section 5(4) of the Law of Succession Act with regard to the poor state of mind of the deceased by referring to the evidence of Dr. Ngugi and Dr. Ndegwa, who confirmed that fact. Further, that Dr. Aluoch did not tell the Court how long it took for the deceased to recover given that he had initially admitted in evidence that the deceased travelled to London while he was very ill and that both Dr. Ngugi and Dr. Ndegwa stated that the deceased had an unsteady state of mind at the time.

61. She further claims that the London Will failed to observe the provisions of Sections 12 of the Law of Succession Act by failing to specify the specific parts of the Trust Deed that the deceased wished to incorporate in the Will. She adds that the part of the London Will which provides for the transfer of movable and immovable asset of the deceased to the Trust would be created without following the Trust Deed for amendment or change thus making that provision null and void. She claims that Section 44of the Law of Succession Actmakes void any condition which requires performance of an illegal act on contrary to law, or morality or public policy, is uncertain or too vague to be enforced. The Kahari Will, in her view is therefore the valid Will.

Submissions on behalf of AK, CW and SK

62. A and S are the children of TW and the deceased. C is the wife of the Late FK and she is representing his interest in the matter as does the wife of Samuel. They all support the Kahari Will.

63. They submitted that the Kahari Will and Codicil thereto were executed by the deceased and attested in accordance with the law. That the Will and Codicil conform with the contents of the Trust Deed and that it made provision for the beneficiaries and they claim that no evidence was tendered to prove that the deceased's capacity was wanting at the time of making the said Will. They further submitted that the witnesses who attested the Kahari Will and Codicil were competent since they were neutral and are not beneficiaries thereto. That the Will outlined all the beneficiaries and the proper schedule of all the properties owned by the deceased and was therefore authentic.

64. As regards the London Will, they claim that Dr. Aluoch's evidence is not convincing because he failed to produce medical records on the deceased's treatment and also proof of his travel to the United Kingdom. They also claim that he is not an impartial attestator to the Will as he had been instructed by one of the beneficiaries, AK and her sisters, to keep the deceased away from his wife, T, and children while at Nairobi Hospital. They also claim that it is unusual for the deceased to have asked Dr. Aluoch to get him a lawyer while knowing very well that he had Mr. Kahari who had been his lawyer for a long time. They also claim that Dr. Aluoch does not mention anything to do with the revocation of the Power of Attorney which was purportedly executed by the deceased on 21st August 2010. They also claim that Mr. Owen Lowry was an accomplice to the forgery of the Revocation of the Power of Attorney as he would not have seen the deceased sign the document on the 21st August 2010. It was also their submission that the deceased could not have recovered well enough by 16th August 2010 for him to really instruct Mr. Rachier to draw the Will for him.

65. They further claim that AK influenced the contents of the London Will and the Will was done in accordance with her instructions or she participated in its making. They claim that the inventory of assets contained some properties which have since changed ownership out of the subdivisions made on the Njiru farm, Embakasi and Kiambu properties which comprise the main investments of the deceased. They also claim that had the deceased been in control of the Will making process, these properties would not have been subjected to the Will and would have given the description of the properties as they were as at September 2010 as opposed to their description as at the year 2003 when the Trust Deed was last amended. They also claim that the deceased could not have included bank accounts that he had since closed like the East Africa Building Society Bank Account, in his inventory, neither would he have omitted to include the bank accounts he had opened just before his demise.

66. They further claimed that the London Will as draft was a departure from the original terms of the Trust Deed, for instance at Clause 10, it provides that the deceased's bank accounts shall be operated by AWK and JNK contrary to Clause K(i) of the Trust Deed which provides that in the event of the deceased's death, the bank accounts shall be operated by Anne WK and by either FKK or SNK Thirdly, that the provisions regarding the Chairmanship of the trust had also been varied. That the Trust Deed also provided that the first Chairman shall be the settlor, followed by JN and they claim that AK cannot therefore be a Chairperson since JN is still alive. Further, under the London Will, AK had been given powers to sanction sale of property whereas the Trust Deed specifically had provided that there would be no sale of properties belonging to the deceased. Lastly, that A has been given powers to oversee the general management of the Trust contrary to the provisions of the Trust Deed which provides that all Trustees shall work together and their powers shall be equal.

67. It was their submission that the London Will cannot stand because it contradicts Section 12 of the Law of Succession Act since it is not in line with the Trust Deed and the Certificate of Incorporation under the Trustees (Perpetual Succession) Act, Cap. 164. And that because the Trust is subject to the Trust Deed, any variation to the operations of trust are destined to be illegal unless approved by the Minister and that the deceased was bound by the statute at the time of making the London Will. They therefore claim that the fact Mr. Rachier failed to apply to the Minister for variation of the terms of the Trust Deed would clearly show that it was unlikely that he was ever instructed by the deceased to make the Will.

68. They also claim that with the eye vision of the deceased had failed and it would have been impossible for him to have executed the Will and in any event, from the video shot on 3rd August 2010, A is seen informing the deceased as to who was in the room which indicates that the deceased was unaware of his surroundings and was also unable to see properly.

69. They further claim that the signatures used in the London Will were questioned by the handwriting expert and cannot be treated as the known signatures of the deceased which only leads to further suspicion as to the validity of the Will.

70. They further alleged that the video evidence produced by DW1, Mohammed Izzat Ali, could not have been taken at the Wellington Hospital and that the deceased in any event appeared not to be of sound disposition because it was shot ten days after he had left his Kitisuru residence and two days after he had arrived in London and they further claimed that the video was edited and that the evidence therein was distorted. They also claimed that the deceased was likely not taken to Wellington Hospital because the medical records were not produced to the pathologists during postmortem or in Court as evidence and that the deceased was taken to London with the sole purpose of influencing him to make a Will in favour of the children of the first wife.

71. They claim that even if AKs name is appearing in both the Kahari and Rachier Wills as well as the Trust Deed, she enjoys the same powers as the other appointee's. That her role in making the London Will is suspect because she was a key player in the removal of the deceased from his Kitisuru home; admission into the Nairobi Hospital; instruction to Dr. Aluoch and the fact that she took him to Kitisuru and handed over the Trust Deed to Rachier for purposes of making the Will. They also claim that she travelled to London with Mr. Rachier and they were booked into the same hotel and she was present in the house in which the deceased was in at the time of executing the Will. She also gave instructions to Mr. Rachier to revoke the Power of Attorney and also informed Mr. Rachier of the existence of another Will. They therefore clam that Anne is a schemer who engaged in the journey to craft the London Will in her endeavour or gain control over the deceased 's estate to the exclusion of the other members of the family and so her role renders the London Will suspicious and doubtful. It was their position that the other beneficiaries from the 2nd and 3rd “Houses” do not have confidence in AK to administer the interests of all the beneficiaries, because she had even denied the existence of TW and legitimacy as a widow of the deceased although she had been married to him for 40 years.

72. They prayed that since AN is the only surviving child of TW, she should be appointed as an executor so as to represent the interests of the third house. In urging me to disregard the London Will, and uphold the Kahari Will, they relied on the decisions in Julius Wainaina Mwathi v Beth Mbene Mwathi Civil Application No.123 of 1992 and Sewe v Sewe and Anor (1991) KLR 105 for the proposition that the Kahari Will is the valid one of the two Wills.

All other beneficiaries and survivors of the deceased and who I have not specifically mentioned above either support the London will or the Kahari Will for reasons articulated above, respectively. I need not repeat their positions as that would be merely repetitive.

Determination

73. Having therefore set out the facts and the beneficiaries' position with respect to either Will I must now determine which if any of the two Wills (KahariandLondon) is valid. Right from the onset, I must state that this matter was very emotive and was highly contested. I also spent considerable time in Court in a bid to assist the beneficiaries temporarily secure the assets of the deceased. I allowed the beneficiaries to participate in the proceedings and address the Court by counsel or in person as they wished in order to ensure that they understood the proceedings from time to time. I also ensured that all orders on record were made by consent to minimise conflicts during the long hearing period.

74. The Law of succession Act has put in place the law applicable to testamentary succession and matters connected and incidental thereto. The preamble to that Act states it is;

“An Act of Parliament to amend, define and consolidate the law relating to intestate and testamentary succession and the administration of estates of deceased's persons; and for purposes connected therewith and incidental thereto”

However, before I examine the validity of the Wills, I must say something about the prior Will dated 19th November 2001, and apparently attested by Grace Githu, advocate. A prima facie examination of this Will does not indicate the person who drew it. It also does not indicate the names of the witnesses who attested its execution because only the signatures of the alleged witnesses appear on page 8 thereof. PW1, Joseph Waithaki Kahari testified that he was a witness to that Will but clearly it was not attested in accordance with the provisions of Section 11 of the Law of Succession Act and that is all to say

75. Regarding the thorny issue of the validity of either of the Wills in question, I will first deal with the Kahari Will.

76. According to PW 1, Mr. Kahari, advocate, the Kahari Will can be traced back to 1996 when he was allegedly instructed by the deceased to prepare a Trust to be named the “Registered Trustees of K Trust” which would cater for his properties. He registered the Trust and obtained a Trust Deed dated 12th November 1996. It also appears that the deceased had instructed Mr. Kahari sometime in 2003 to prepare a Will for him which was executed by the deceased on 24th March 2003. It has also been alleged that after preparing this particular Will, the deceased further instructed Mr. Kahari to prepare a Codicil amending the Will. He prepared the same and the Codicil was executed on 17th September 2003. It is also on record that the deceased also instructed Mr. Kahari to amend the Trust Deed and it was later amended on 2nd September 2003, and was presented for registration on 24th September 2003. The Amended Trust Deed was produced in evidence and was marked as P. Exhibit 1.

77. Mr. Kahari testified that after the death of the deceased\\\'s son, Fredrick Kirima in 2006, the deceased instructed him to amend his Will to reflect that fact. Mr. Kahari however cautioned him against making any further amendments and instead advised him to draw a new Will which was drafted and executed on 20th July 2006.

78. Thereafter, upon the death of his first wife, AW, the deceased instructed him to draft a Codicil to the Will of 20th July 2006. He did so and it was executed on 6th May 2008. It is this Will of 20th July 2006 and the Codicil of 6th May 2008 that is being referred to as the Kahari Will.

79. As I understand it, before a Will can be declared lawful, it must be proved as a valid testamentary disposition of the testator. In proving so, a Court must examine whether the formal requirements in making a Will have been complied with, such as; whether the testator had the legal capacity to make the Will and whether it was made voluntarily without any duress, undue influence or mistake. It would also be important to consider whether the testator revoked the alleged Will before his death. I will deal with each of these issues shortly in the context of this case.

80. The objectors to the Kahari Will claim that the deceased did not have capacity to make the Will because at the alleged time of execution of the Kahari Will he was locked up in his home in Kitsuru and as such he was not a free agent. They take issue with the fact that the Will was made in favour of the the third house which would per se demonstrate that the deceased lacked the requisite capacity to make the Will. Capacity, as I understand it, relates to understanding the nature of the Will making process and it matters not whether there is apparent bias in the final disposition made.

81. Mr. Kahari testified that at the making of the Kahari Will, the deceased was of good health and he was also of a clear state of mind. The Kahari Will was executed in 2006 and the Codicil in 2008 and I have no reason to disbelieve Mr. Kahari's testimony on the health of the deceased because none of the objectors or the beneficiaries claim that he was unhealthy at this time. But during cross-examination by Mr. Mubea, advocate, Mr. Kahari stated that he had at one point in 2009 spoken to WK and informed him that the deceased appeared not to be in good health and that he needed health care. Even so, I am unable to find that the deceased was so sick as to lack the testamentary capacity contemplated under Section 5(3) of the Law of Succession Act. The objectors have failed to lead evidence and prove the lack of capacity of the deceased due to ill health at the making of the Kahari Will.

82 . In addition to having testamentary capacity, a testator must know and approve the contents of this Will. A testator will be deemed to have known the contents of his Will if he is aware of its contents and understands the terms. Approval is seen from the execution of the Will and in John Kinuthia Githinji v Githua Kiarie & Others, Civil Appeal No.99 of 1988, it was held that it is essential to the validity of the Will that at the time of its execution, the testator should have known and approved its contents.

83. The law on knowledge and approval of a Will is found inSection 7 of the Law of Succession Actwhich provides that;

“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 adduced by mistake is void.”

84. Margaret and AK submitted that the Kahari Will must be viewed with suspicious because the children of the 1st and 2nd house had not seen their father for two years, and that he had not reported to the offices of K and Sons for those two years, because he had allegedly been locked up by TW. Further, that it was during this time that he also executed the Codicil. It was therefore their position that the deceased must have been held at Kitisuru residence against his free will and therefore the Kahari Will must be vitiated by undue influence, suspicious circumstances, fraud and lack of knowledge or approval. They claim that the Codicil had bequeathed TW most of the valuable assets and this was done shortly after the death of the deceased's first wife and also at a time when the testator was locked incommunicado by TW and was prevented from meeting with any of the children of the deceased's other wives.

85. Was the Kahari Will or its Codicil vitiated by any of the above factors as alleged? Mr. Kahari and all the witnesses who attested to the execution of the Kahari Will claimed that the said Will was executed on 20th July 2006 at the deceased's offices along Moktar Daddah Street. It was not proved in evidence that as at 2006, the deceased was badly ill except for his diabetic condition which he had had for a log time anyway. I am unable to sufficient evidence that at the time of making the Kahari Will in 2006, the deceased was not of sound mind and was acting without independence.

86. The next issue I must determine is whether the Codicil meets the requirements set under the Law of Succession Act. Mr. Kahari testified that upon the death of the deceased's first wife, he was instructed to draft a Codicil to the Will dated 20th July 2006, which he did and the same was executed on 6th May 2008 at the offices of Kahari & Kiai advocates. It was alleged that the deceased had not left his house for two years as he had allegedly been locked up in his Kitisuru residence. From the video evidence played in Court, titled “break in”, the deceased is heard asking his children why they had abandoned him and failed to visit him for that long. Clearly, the deceased was not aware that his children had been locked out of his residence. The drama and events of 2nd and 3rd August 2010 outside the Kitisuru residence are self explanatory that the children had been denied access to their father. Further, MK claimed that the deceased had not set foot in the offices of K and Sons Ltd for those two years. In her testimony, AK, PW9 corroborated this evidence when she stated that;

“I stayed with him (deceased) in 2008 as well as 2009. His routine was; wake up, have some little breakfast, to to snooze, go back for some big breakfast, play with his grandchildren, go for another snooze, then lunch, make calls before dinner, and then sleep.”

She further stated in Cross-examination that;

“When we were going to Kahari's office, i did not know what we were doing to do but I waited at the reception for one hour and then I was called in by Kahari\\\'s secretary, Elizabeth.”

87. I believe her in that regard and will revert to the issue later. But it has been alleged that the Kahari Will and Codicil are suspicions for various reasons and that the deceased must have signed both documents under undue influence and/or coercion by TW and her family allegedly because it departed from the deceased's long standing conviction that upon his death, his property should not be distributed directly to his children but be transferred into a Trust created for the benefit of his children and grandchildren.

88. I have seen the document establishing and amending the K Trust dated 2nd September 2003. It is clear to me that the deceased intended to deal with his properties in the manner prescribed under that Trust. He made a schedule of assets which he intended to be transfered to the Registered Trustees of K Trust and whether these assets were transferred or not is not an issue for determination now. Clause 5 of the amendment to the document establishing the K Trust stipulates that;

“It is contemplated that further property or assets will be transferred or invested in the Trust by or at the instance of the settlor to be held upon trust hereof as an addition to the trust fund hereby constituted.”

89. Even with such a clear intention, I am not satisfied that if the deceased later distributed his estate in a Will to individual beneficiaries then that action should be viewed as being suspicious. I am aware and it was not contested, that the deceased had at some point given and caused some properties to be registered in the names of some objectors and beneficiaries including AK who was registered as a beneficiary of some property in Runda as was T and others. My finding in any event is that under Section 5(1) of the Law of Succession Act, any person may dispose of all or any of his property in a manner he deems fit and a testator may change his mind at any time before his death as to how he intends that his property should be disposed of.

90. It has also been alleged that the Codicil of 6th May 2008 was made at a time when the deceased was ill and held incommunicado by TW and her family. They claimed that the Codicil substantial altered the terms of the original Will thus resulting in a substantial benefit of the estate to TW Evidence on record shows that at the time of the execution of the Codicil the deceased had not been in touch with his children from the 1st and 2nd wives and that like the case in Wanjau Wanyoike and 4 Others vs Ernest Wanyoike Njuki & Anor (supra), the Court should conclude that the deceased did not know or approve the contents of the Codicil and the same was therefore void.

91. In his testimony PW1, Mr. Kahari claimed that when he prepared the Codicil in 2008, the deceased was in fairly good health and was accessible to his family but the children of he 1st wife claim that they had not seen their father for two years. He was removed from the Kitisuru residence in 2010 and all evidence on record would reveal that the deceased was not in touch with most of his children in 2008 when the alleged Codicil was being executed and the question is whether he was coerced into making it. In Mwathi vs Mwathi (1995-1998) 1 EA 229, the Court held that;

“Undue influence occurs when a testator is coerced into making a Will or some part of it that he does not want to make. Undue influence is proved if it can be shown that the testator was induced or coerced into making dispositions that he did not really intend to make”

I agree wholly that the issue of the Codicil must be addressed together with the Power of Attorney which allegedly, was executed by deceased at the same time and which he allegedly revoked in London.

92. Notwithstanding what I have said above regarding the Kahari Will, I find it strange that the deceased would have granted the Power of Attorney to TW who previously had not featured anywhere else in the business matters of the deceased although she was his lost wife. I also find it unusual that he would have failed to grant the Power of Attorney to AK who appears to have had the trust of the deceased. It was not contested that A had a special relationship with her father and this is evident from the role granted to her father with regard to his vast estate. She has been named in all his alleged Wills as an executrix and she was also appointed as a Trustee of the K Trust including being in line as Chairperson. I will say something different about her role later in this Ruling.

93. The video evidence titled “Break in, Part 2” captured the deceased speaking at Wellington Hospital, and denying any signatures he may have put on certain documents. Clearly, the deceased signed some documents prior to that and he specifically stated that he has revoked the Power of Attorney. He claimed that his properties had been taken away and that he does not know one, “Maji Marefu” a shadowy character whose place, in his family life is unclear to this Court although his name was whispered in Court severally.

94. I watched the said video and although it is not contested that the deceased was the one speaking, the issue I have is with its authenticity. There are Kiswahili writings on the face of it which transcribe the deceased\\\'s words as he spoke. DW 1, Mohammed Izzat admitted that he neither understands nor speaks Kiswahili and denied that he had anything to do with the Kiswahili by lines on it. Someone tampered with the video after DW1 had shot it and given it to a member of the deceased\\\'s family, most likely AK who hired him. That fact notwithstanding, the totality of the evidence tendered would only lead me to conclude that noting his state of health and his condition when he was removed from Kitisuru he was not of such a mind as to have voluntarily executed the Codicil and Power of Attorney and I so hold. I say this because while he may have been in sound health in 2006, in 2008, he was not. He had just lost his wife, was locked up in Kitisuru all day as was the evidence of AK. He was spending most of his time “snoozing” and it is obvious to me that when he was taken to execute the Codicil and the Power of Attorney, he was not fully in-charge of his affairs. The fact that the Codicil and Power of Attorney favoured TW who was the one living with him point to that fact. I need not reproduce the evidence of those who object to these two documents (the evidence is elsewhere above) but suffice it to say that I believe it. In Mwathi vs Mwathi (1995-1998) 1 EA 229, the Court held that;

“Undue influence occurs when a testator is coerced into making a Will or some part of it that he does not want to make. Undue influence is proved if it can be shown that the testator was induced or coerced into making dispositions that he did not really intend to make.”

I agree with the holding above and to that extent the two documents must be held to be invalid.

95. Turning to the crucial issue of attestation, for a Will to be valid it must be attested. Section 11 of the Law of Succession Act provides that;

“No witness 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 eh 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.”

96. Section 11(c) provides that the testator's signature must be made in the presence of two witnesses who need not be present at the same time. In the Matter of the Estate of James Ngengi Muigai, HCSC No.523 of 1990 it was held that the law allows the Will to be witnessed by two or more witnesses at different times, but each should sign in the presence of the testator.

97. The Objectors of the Kahari Will and Codicil have taken issue with regard to its attestation. It was alleged in that regard that it was suspicious for that Will to have been witnessed by Mr. Kahari's secretary, a building caretaker and a bodyguard. They allege that the testator was a senior citizen of high standing in society that was most unlikely that he would have used the said people as the witnesses to his will. RK stated that, “My father was a man of integrity. He was very particular in the way he wanted his things done. He was such an organised man” WK claimed that the deceased would not have bypassed his trusted friends such as CN and MK to pick strangers to be witnesses to his Will. To my mind and from my reading of Section 11(c) of the Law of Succession Act, any person can witness the execution of a Will so long as they are capable of seeing the signature and understand what they are doing. A witness competent to attest a Will is defined by Section 3(1) of the Actas “a person of sound mind and full age”. Clearly, it matters not what the social standing of the testator or the witness in the society may be and their circumstances, I hold and find that the Kahari Will and Codicil cannot fail on this ground alone. The witnesses, tothat extent only, were competent witnesses and subject to what I will shortly say.

98. It was alleged that PW2, Bernard Mwangi Mbatia and PW 3, Ruth Kawila Nzovya the witnesses who attested the Kahari Will did not attest to the signing of all the pages of the Will by the deceased. They both testified that the deceased informed them that he wanted them to witness him sign a document but they only saw him sign one page of the Will yet it has more than one signature on it.

99. From a clear reading of Section 11(c) of the Act, to be present at signing means that the witness must be capable of seeing the testator sign the Will and thereafter attest to that fact. The witnessing is to the signature of the testator and cannot be anything else. In Re Colling (1972) 1 WLR 1440, it was held that if a witness left the room before the testator completed his signature, the attestation will also be invalid. I agree and in my view, the attestation of a Will validates the testator\\\'s signature and in this case, the witnesses allegedly saw the deceased sign one page of a document and they also signed one page of the same document. I have seen the Will which has been produced as evidence in this Court, and each of the 18 pages bears the signature of the testator but the witnesses signatures appear on the jurat page which is page 12 thereof.

What page did the deceased sign in the presence of the witness? When did he sign all he other pages if they saw him sign only one page? Did they really see him sign the jurat page to authenticate the Will? It has also not been explained to the Court why the testator failed to sign the last three pages of the document which has the annexed photocopies of the building pla for his intended mausoleum. It is also not clear why the plans are photocopies and not originals given that the Will produced in Court is the alleged original document. For these reasons alone, I find that the deceased failed to make and execute the Kahari Will of 20th July 2006 in accordance with the provisions of Section 11 of the Law of Succession Act and I am unable to find it as valid. I say so despite my findings on all other factors that may otherwise have validated the Will.

100. It also follows that the above findings and application of the law would apply to the Codicil dated 6th May 2008. PW5 Elizabeth Ndunge Philip testified that she witnessed the execution of he Codicil but she only signed one page of the document while the deceased signed all the pages. This evidence was corroborated by PW4, Samson Mwangi Wanyoike. Again, it is not clear why the witnesses did not sign all the pages of the Will as the testator did. I therefore find that both the Kahari Will and Codicil have not met the formal requirements as to attestation and declare them as invalid.

The London Will

101. The London Will was executed by the deceased on 10th September 2010 at London when he was allegedly admitted at the Wellington Hospital. The objectors to this Will claim that the deceased lacked capacity to make the Will as he was ill at the time of its making.They referred the Court to the cases of Julius Wainaina Mwathi v Beth Mbene Mwathi Civil ppeal No.123 of 1992 where the Will was held to be invalid for having been drawn by a testator who was quite ill. Some of the Objectors claimed that the deceased was of unsound mind or lacked the capacity to make the Will and relied on the case of Banks v Goodfellowto support their claim.

102. Section 5(1) of the Law of Succession Act embodies the principle of testamentary freedom by providing that any person is capable of disposing of his property by Will so long as he is of sound mind. Testamentary capacity has been described as the testator's ability to understand the nature of Will making. This test was set by Cockburn CJ in Banks v Goodfellow where he stated as follows;

“he must have a sound and disposing mind and memory. In other words, he ought to be capable of making his Will with an understanding of the nature of the business in which he is engaged, a recollection of the property he means to dispose of, and of the persons who are the objects of his bounty and the manner it is to be distributed between them.”

This test, applied and set inBanks v Goodfellow (supra), was applied with approval by the Tanzania Court of Appeal in Vaghella v Vaghella (1999) 2 EA 351), where it was stated that the validity of a Will derives from testamentary capacity of the testator and from the circumstances attending to its making. This has also been applied in the Kenyan cases of In the Matter of the Estate of James Ngngi Muigi HCSC No.523 of 1996 and also in Mbugua v Mbugua Civil Appeal No.23 of 1982.

In Broughton v Knight (1873) 3 P and D 64, the Court held that the testator must have;

“a memory to recall the several persons who may be fitting objects of the testator\\\'s bounty, and an understanding to comprehend their relationship to himself and their claims upon him so that he can decide whether or not to give each of them any part of his property by Will.”

103. As a starting point, Section 5(3) of the Law of Succession Act creates the presumption that the person who is making a Will is of sound mind. Under Section 5(3)(4) of the Act, the burden of proving otherwise is on the person alleging that the testator was not of testamentary capacity or was of unsound mind at the time of making the Will. I am wholly guided and I will now pose here to determine whether it had been proved that the deceased lacked capacity at the time of making the London will.

104. The objectors to it claim that when he was flown out of the country and subsequently admitted at the Wellington Hospital, London, the deceased could not have possibly given instructions to Mr. Rachier on 16th August 2010 to revoke the Power of Attorney and prepare his last Will and testament considering his medical and mental condition. They also question the possibility of the deceased having gotten close to his doctor, Dr. Aluoch in such a short time so as to request him to find him a lawyer. They relied on the case of Mwathi where the grant was revoked on grounds of suspicion as to how the deceased behaved prior to the execution of his Will.

105. They also question the circumstances under which the deceased executed and prepared the London Will which begun with his forceful removal from his home, hospitalization at Nairobi Hospital, the transfer to the United Kingdom, the handing over of the Trust Deed to Mr. Rachier by AK and Mr. Rachier's eventual trip to London where he prepared the Will.

106. DW2, Dr. Aluoch testified as to how he examined the deceased to ascertain his mental status at the time of making the London Will and he was satisfied that he was of sound mind. In John Kinuthia Githinji v Githua Kiarie & Others Civil Appeal No.99 of 1988, the deceased who was admitted in hospital seriously ill with cancer of the duodenum, sent for her advocate whom she gave instructions to draw a Will, the details of which comprised of how she wished her property to be disposed off. The advocate drew the Will in accordance with the instructions and thereafter explained its contents to the testatrix in the hearing of a nurse on duty. At the time of execution, the testatrix was said to be mentally alert and appeared to understand the advocates explanations of what was contained in the Will. Consciously and knowing what she was doing, the testatrix executed the Will by signing it. It was held that in the absence of evidence that the illness had affected her mind so as not to know what she was doing when she signed the Will, the subject Will was valid.

107. Turning to the London Will specifically, whereas I have nothing but respect for Dr. Aluoch and Mr. Rachier advocate, I am constrained to ask the following questions;

i) The deceased was so ill while at Nairobi Hospital that he had to be transferred to London for special treatment. How could he get well so quickly that he was able to do all that a healthy person could do including a few day after arriving in London, deciding to write a wholly fresh and new Will?

ii) How can he be said to have been in control of his affairs when in fact he had been forcefully taken away from TW and her children to AK andher sisters? Was he taken from one “captive” situation to another?

iii) Where is the evidence that when he was left overnight on two occasions with the draft Will, the deceased was able, without influence, to read and understand the Will and its contents? He was blind in one eye and was 40% blind in the other. He was also semi-literate. How could he, unaided, in sick health make serious amendments to the draft Will?

iv) Granted, AK was her father's darling but she was the one who instructed Mr. Rachier and at all times was omnipresent as the London Will was being prepared and she had special access to Mr. Rachier and the deceased at different times. Can those facts be taken lightly? They lived in the same Hotel (the Hilton) and in all respects had access to the documents used in making the Will.

v) Mr. Rachier's fees as were Dr. Aluoch's fees were paid by he person who instructed them; AK. If the deceased was in full control, why could he not pay them himself or arrange for payment from his many bank accounts including one in London?

vi) The deceased allegedly revoked the Power of Attorney and denied that TW was his wife. How could he do this while previously he had never denied her?

I have found that he may have been influenced while at Kitisuru by TW. I am satisfied that in London, he was influenced to deny TW.

108. Just like the Codicil and Power of Attorney were clearly made upon manipulation of the deceased's mind by persons close to him, the London Will was also prepared and executed by professionals innocent of the clear manipulation of the deceased's mind towards a set direction.

109. In the Codicil and Power of Attorney, the obvious beneficiaries were TW and her house. In the London Will, the clear beneficiary is AK and by extension, her siblings. The manifestation towards each side is obvious to me.

110. On both occasions, the deceased was a pawn, in a game of chess where each side of his family was playing against each other. In the end, his free Will was lacking and his actions can only be said to have been undertaken upon undue influence. In Atter & Others vs Atkinson & Anor (1869) L.R. (I.P) D 665, it was held that where a Will is prepared by a person who takes a substantive benefit under it, the Will cannot be invalidated if it is proved that the testator was of sound mind, memory and understanding. Further, in Wingrove vs Wingrove (1885) 11 P & D 81, Sir James Hanne stated as follows;

“To make a good will, a man must be a free agent. But not all influences are unlawful. Persuasion appeals to the affections of ties of kindred, to a sentiment of gratitude for past services or pity for future destitution or he like, these are all legitimate and may fairly be pressed on a testator … in a will, the testator may be led but not driven and his will must be the offspring of his own volition and not the record of some else”

I wholly agree with the above holdings and would only add that I have no doubt that AK was her father's favourite child. He trusted her and all evidence points to that fact but in the circumstances obtaining in London, I am certain that she overplayed her hand. She drove the testator to a certain position and in the end the deceased's mind was influenced to a level where it cannot be said that he acted on his own volition.

111. In the end, I am satisfied that the London Will cannot be an expression of the deceased's intentions and I will also invalidate it for the said reasons.

112. Having held as I have done above, once I have invalidated both contested Wills, it follows that the deceased must be declared to have died intestate and I so find. His estate shall be distributed under intestacy laws but that is not the end of the matter. The family of the late GKK must find a way of putting closure to the subject of his estate.

113. During the hearing, I noticed that the family was divided into two distinct camps; one that was led by TW and AK and the other clearly led by AK. Both Maraga J. (as he then was) and myself, tried to put in place measures to save the large estate from depletion but neither AK nor AK were able to work together and jointly with JK to manage the estate. The fact that they had the guidance of seasoned advocates did not help the situation. JK, in my view, is a genuine old man with the sole interest of guiding his divided brother's family but in the end the venom exhibited by both camps made him ineffectual. What should this Court do in view of my findings above and in the best interests of the family? It must be understood that the intention of the Law of Succession Act is the eventual distribution of a deceased's estate. In the present case, whether or not I had validated one of the two Wills, the K family saga would not have ended. I say so because;

i) Some properties of the deceased may have been transferred to some members of the family and to strangers in suspicious circumstances. It is unclear to me what these properties are.

ii) The estate has huge debts owed to the Kenya Revenue Authority and I am not certain that the issue has been resolved.

iii) The land in Njiru at the outskirts of Nairobi is the subject of a number of lawsuits and has been invaded by squatters.

iv) The deceased set up the K Trust which I have found to be genuine but it is unclear how and whether the parties desire to make it the vehicle for securing the estate. It would be the best means of doing so and to ensure that the estate is retained in perpetuity but the disagreements in the family would point to a different mindset.

I have sat for one year and I have seen the conduct of each beneficiary. There is no goodwill on any side and sadly, it is the whole family that will continue to suffer, unless sanity prevails.

114. These issues would require resolution and in Conclusion, while find that both the Kahari and London Wills are invalid, the further orders of this Court shall be as follows that;

i) TW, the deceased's spouse (and that issue should not be contested by anyone) should appoint one person to become a Co-administrator of the deceased's estate within the next seven (7) days.

ii) AK should also appoint also one person to became a Co-administrator of the deceased's estate within the next seven (7) days.

iii) Failure to do the above will necessitate that the Court will invoke Section 66 of the Law of Succession Act and appoint the said Co- administrators.

iv) Thereafter the deceased's estate shall be distributed under intestacy laws and in accordance with the Law of Succession Act.

v) This file will now be remitted back to the Family Division of this Court for further directions on a date to be agreed by the parties.

vi) Costs shall be in the cause.

115. Orders accordingly.

DATED, DELIVERED AND SIGNED AT NAIROBI THIS 6TH DAY OF JUNE, 2013

ISAAC LENAOLA

JUDGE

In the presence of;

Florence – court clerk

Mr. Arwa and Mrs. Mutisya present

Mr. Mungla present

Mr. Nyamu present and holding brief for Mr. Kyalo

Catherine Njeri present

Rachael Ndei present

Order

Ruling duly read.

ISAAC LENAOLA

JUDGE

Further Order

Mention on 17/6/2013 before Musyoka, J. for directions.

ISAAC LENAOLA

JUDGE

6/6/2013