[2025] KEHC 4189 (KLR)

In re Estate of Jacinto Agapito Exaltation De Souza (Deceased) (Succession Cause E1242 of 2022) [2025] KEHC 4189 (KLR) (Family) (3 April 2025) (Ruling)

Neutral citation: [2025] KEHC 4189 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause E1242 of 2022

HK Chemitei, J

April 3, 2025

IN THE MATTER OF THE ESTATE OF JACINTO AGAPITO EXALTATION DE SOUZA (DECEASED)

Between

Michael Ian De Souza

1st Objector

Christine Annette Krepsky

2nd Objector

Cheryl Isabel De Souza

3rd Objector

Esperance De Souza

4th Objector

and

Isabella De Souza

Petitioner

Ruling

1. This ruling relates to the notice of preliminary objection dated 7th March, 2024 filled by Isabela De Souza and based on the grounds that:-1. Parties to the Protest are uncertain and do not have any locus standi in the matter.2. The protest of all the “objectors” is misconceived, incompetent, bad in law and fatally defective in law.3. The affidavit of protest of Michael Ian De Souza dated 4th September, 2023 is bad in law and the annexures termed “codicil” are not in law a codicil and are inadmissible under Section 106B of the Evidence Act.4. The affidavit filed therein by one Cheryl Isabel Pedersen on 12th September, 2023 is fatally defective and bad in law and should be struck out.5. Further the affidavit filed therein by one Christine Annette Krepsky on the 5th September, 2023 is fatally defective and should be struck out.6. There is no valid codicil in law before this court.7. The protest is not substantiated, is an abuse of the process of the court and should be struck out.

2. The affidavit of protest dated 4th September, 2023 that forms part of the grounds relied on in the notice of preliminary objection dated 7th March, 2024 is sworn by Michael Ian De Souza.

3. He avers inter alia that he is the deceased’s son, who passed away on 3rd June, 2022. Before his death, the deceased prepared a Will dated 24th April, 2014, along with a codicil dated 29th May, 2022. At the time of his passing, he was survived by his dependents: Isabella De Souza (spouse), Michael Ian De Souza (son), Cheryl Isabel Pedersen (daughter) and Christine Annette Krepsky (daughter). Isabella De Souza, named as the executor and trustee in the Will, filed a petition for probate on 6th July, 2022. However, she deliberately failed or chose not to disclose the codicil dated 29th May, 2022, to the honorable court.

4. That her actions misrepresented the deceased’s true intentions, making her guilty of non-disclosure and concealing material facts from the court. She is aware that the deceased was the registered owner of Land Reference Number 1870/V/139, located in Westlands, Nairobi County (hereinafter referred to as "the property"). This property was the subject of High Court Civil Case No. 575 of 2000, involving Esperance De Souza and the deceased. The court ruled that the property should be jointly registered in the names of the deceased and Esperance De Souza, held in trust for Michael Ian De Souza, Cheryl Isabel Pedersen and Christine Annette Krepsky. However, despite the court order, the property has not yet been transferred to the joint ownership of the deceased and Esperance De Souza and remains solely under the deceased’s name. Isabella De Souza currently holds the original title deed for the property.

5. Additionally, the deceased was the registered owner of one share in Copy Express Limited, a private company incorporated in Kenya. During his lifetime, he expressed his wish for this share to be transferred to him, but this had not been done by the time of his passing, contrary to his intentions. It has also come to light that, following his death, Isabella De Souza facilitated the sale of Copy Express Limited and she is called upon to confirm or deny this claim. The petitioner initiated a fraudulent succession process and the sale of the company appears to be an attempt to disinherit him from the estate despite his entitlement. The grant proceedings were marred by significant non-disclosure of crucial information.

6. The affidavit of protest sworn by Michael Ian De Souza on 4th September, 2023 is supported by affidavits sworn by Christine Annette Krepsky on 5th September, 2023 and Cheryl Isabel Pedersen on 12th September, 2023. Both are the deceased’s daughters.

7. The affidavit of protest sworn by Michael Ian De Souza on 4th September, 2023 is opposed vide replying affidavit sworn by Isabella De Souza on 11th September, 2023.

8. She avers inter alia that she was legally married to the deceased for 22 years at the time of his passing. The deceased left a written Will but did not leave a codicil, as claimed by Michael Ian De Souza. The alleged codicil consists of SMS messages and an unsigned and unwitnessed document. Michael Ian De Souza had distanced himself from the deceased and refused to contribute to his funeral expenses, yet she still paid him Kshs.520,000/= upon his demand. She has obtained probate based on the deceased’s will dated 24th April, 2014.

9. Regarding the deceased’s assets, he was the registered owner of property L.R. 1870/V/139 in Westlands, which is now the subject of the court order filed by Michael Ian De Souza. Through her legal representatives, she has repeatedly requested Michael Ian De Souza to transfer the property to the deceased’s children, but he and his lawyers have refused, instead filing an affidavit of protest on 4th September, 2023. However, he is free to transfer the land to himself and his sisters and this has been communicated to his former advocates.

10. As for the shares in Copy Express Limited she deponed, the deceased owned one share and she also holds one share in the company. The claim that the deceased wanted his share transferred to Michael Ian De Souza is untrue. If that had been the deceased’s intention, he would have stated it in his Will. Michael Ian De Souza is seeking to have all of the deceased’s assets transferred to him, leaving her with no inheritance from her husband, which was never the deceased’s intention. She was his wife for 22 years and actively contributed to the business where they each held one share. The affidavit of protest dated 4th September, 2023, is misleading, malicious and an abuse of the court process; and should be dismissed.

11. Isabella De Souza has filed written submissions dated 5th August, 2024 placing reliance on the following:-a.Idris Abdi Abdullahi v Ahmed Bashane & 2 Others [2018 eKLR where the court stated as follows: “Therefore, although the requirement of the certificate is a procedural and technical matter, Section 106B (4) of the Act is mandatory and cannot be ousted by Article 159 (2) (d) of COK 2010… This court finds that the mandatory provisions of the Evidence Act are about form and substance. Before the court can admit electronic records/evidence a certificate is mandatory to confirm source, process, custody and delivery of the said electronic record before admission so as to preempt manipulation of the record.”b.Bernard Kibor Kitur v Alfred Kiptoo Keter & Another [2018] eKLR where the supreme court held as follows: “In view of the above, the court of appeal found that the high court misdirected itself by requiring the substituted petitioner to adopt word for word the original petitioner’s affidavit as some of the facts that were adopted and relied upon could not be proved by the petitioner based on his knowledge hence, they remained hearsay and of no probative value.”c.Mukisa Biscuits manufacturing Co. Ltd vs West End Distributors Ltd [1969] E. A. 696 where a preliminary objection was defined as follows: “The first manner relates to the increasing practice of raising points, which should be argued in the normal manner, quite improperly by way of preliminary objection. A preliminary objection is in the nature of what used to be a demurer it raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or of what is sought in the exercise of judicial discretion. The improper raising of points by way of preliminary objection does nothing but unnecessarily increase and decrease costs and, on occasion, confuse the issue. The improper practice should stop.”

12. Michael Ian De Souza, Cheryl Isabel Pederson and Christine Annette Krepsky have filed written submissions dated 16th September, 2024 placing reliance on the following:-a.Mable Muruli v Wycliffe Ambetsa Oparanya & 3 others [2013] eKLR where the court stated as follows:“Under Article 159 2 (a) it is stated that justice shall be done to all irrespective of status. Further, justice shall be administered without undue regard to procedural technicalities. I do find that the CDs can be produced as evidence. The court will evaluate the probative value of that evidence or even the authenticity of the CDs. The essence of justice is that a party should be able to approach the court and present his or her case. Such presentation should be supported by his or her oral evidence, electronic and documentary evidence. On the other side the defendants or respondents should also be accorded an opportunity to produce their evidence. By the end of the day each party should be able to go back home satisfied that they have presented their case to the court and the court was able to take their evidence. This is in line with the provisions of Article 50 which gives the right to every person to have any dispute resolved by the application of the law in a fair and public hearing before a court. Shutting out the electronic evidence will make the petitioner go back home while nursing the notion that the court did not take her evidence. In Presidential Election Petition No. 5 of 2013 Nairobi the court was able to view electronic evidence and such issues as the authenticity of the evidence did not arise.”b.Mukisa Biscuits Manufacturing Ltd vs West End Distributors(1969) EA 696 where the court observed as follows:“…a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by a contract giving rise to the suit to refer the dispute to arbitration. In the same case, Sir Charles Newbold, P. stated: “a preliminary objection is in the nature of what used to be a demurer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercises of judicial discretion. The improper raising of preliminary objections does nothing but unnecessarily increase costs and on occasion, confuse the issue, and this improper practice should stop.”c.Kennedy Obuchi Nyangen v Uasin Gishu County Government [2022] eKLR where the court stated as follows:“This is tested when the witness ultimately testifies before the court, and the veracity of the evidence is tested through cross examination to gain the force of evidence. With this in mind, the question that arises if whether a supporting affidavit similar to that filed by the Plaintiff suffices in place of a witness statement. I think so. At the first instance, the supporting affidavit raises all the necessary averments that the Plaintiff intended to testify over. In this suit, the use of the supporting affidavit did not in any way compromise the ability of the Defendant to mount his defense.”

Analysis and Determination 13. I have gone through the notice of preliminary objection, the responses thereto and the rival submissions filed by the parties, and address them as follows:-

14. In the case of I.N. & 5 others v. Board of Management St G. School Nairobi & another (2017) eKLR the court defined, at paragraphs 7 & 8, a preliminary objection as follows:-“Definition of a preliminary objection:I find it necessary to define what constitutes a preliminary objection on a point of law. A preliminary objection must first, raise a point of law based on ascertained facts and not on evidence. Secondly, if the objection is sustained, that should dispose of the matter. A preliminary objection is in the nature of a legal objection not based on the merits or facts of the case, but must be on pure points of law.It may be noted that preliminary objections are narrow in scope and cannot raise substantive issues raised in the pleadings that may have to be determined by the court after perusal of evidence. Understanding the nature and scope of preliminary objections is very important for practicing lawyers. Knowing how to raise a properly formulated preliminary objection, and when to raise it, can save a lot of time and costs.”

15. Looking at the arguments before me I find that the issue of whether the codicil is authentic or not is a matter of fact. The same must be tested by way of oral evidence and the parties subjected to cross examination. This therefore defeats the purpose of the preliminary objection as suggested in the above cited authority.

16. In my view therefore this is a matter ripe for full trial. Both the Will and the Codicil must be subjected to thorough examination and the witnesses, if any, called to authenticate. The legal issues raised in the submissions will thereafter be considered.

17. In the premises I disallow the preliminary objection and direct the parties to proceed and fix the entire cause for determination by complying with pretrial requirements.

18. Costs shall await the outcome of the cause.

DATED SIGNED AND DELIVERED AT NAIROBI VIA VIDEO LINK THIS 3RD DAY OF APRIL, 2025. H K CHEMITEIJUDGE