[2022] KEHC 14257 (KLR)

In re Estate of John Maritim Ruto (Deceased) (Succession Cause 39 of 2016) [2022] KEHC 14257 (KLR) (14 October 2022) (Judgment)

Neutral citation: [2022] KEHC 14257 (KLR)

Republic of Kenya

In the High Court at Kericho

Succession Cause 39 of 2016

AN Ongeri, J

October 14, 2022

ESTATE OF THE LATE JOHN MARITIM RUTO (DECEASED)

Between

Joseph Kipsang Keino

Petitioner

and

Rosemary Chepkemoi Ruto

Objector

Judgment

1. The Petitioner herein, Joseph Kipsang Keino (hereafter referred to as the petitioner) filed this Petition for Letters of Administration with Will attached on 28/6/2016.

2. The Objector Rosemary Ruto (hereafter referred to as the Objector) filed a Protest to the Petition challenging the validity of the Will dated 9/4/2012.

3. The Deceased herein John Maritim Ruto died on 19/4/2016 leaving behind two wives, the Objector herein and Linner Chebwogen who is a sister to the Executor.

4. The Objection proceeded by viva voce evidence. The Objector’s evidence that she got married to the late John Rutto in the year 1975 for a period of 41 years and they were never divorced or separated until his demise in 2016.

5. The Objector said that her husband died on the 19th of April, 2016 and after two weeks of his burial, Mr. Motanya an Advocate went to their home and read a will dated the 9th of April, 2012, purported to have been made by her late husband, who during his lifetime never mentioned anything to do with the will.

6. She stated that she approached Mr. Motanya and Ms. Chepkirui Stella in a bid to get a copy of the will but all her efforts were in vain, and she then decided to get a copy of the will from the court file where she discovered that the signatures purported to be that of her late husband were totally different from other documents he had earlier signed.

7. It was stated by the objector that she also discovered that the executor of the purported will was one Joseph Kipsang Keino, who is a brother to Linner chebwogen and is a total stranger to the estate of her late husband. She further stated that by the time the purported will was made, her husband was ailing from epilepsy and diabetes and was therefore not mentally fit to make the will.

8. She stated that when she suspected that the purported will was a forgery, she reported the matter at Kericho Police station and recorded a statement to that effect.

9. The objector testified that during the lifetime of her late husband, they jointly purchased several properties such as Land Parcel No. Kericho/Kapsuser/2381 , Kericho/Kapsaos/2185, Kericho/Municipality/2/146 and they established a matrimonial home in parcel no. Kericho/kapsaos/915; they also jointly owned two motor vehicles KYW 218 and KAL 236F.

10. The objector further stated that by the time they acquired all these properties Linner Chebwogen had not been purportedly married by her late husband, and she is trying to get a share of what she never contributed in acquiring.

11. The Petitioner’s evidence was that he is the brother in law to the late John Maritim Ruto and he was present at the burial of the deceased, where it was announced that a post burial meeting would be convened on the 13/5/2016.

12. The petitioner stated that a few days before the 13/5/2016, he received a call from Advocate Motanya, who informed him that the late John Maritim Ruto had in his will appointed him as the executor/administrator of his estate; and he was requested to be present on the 13/5/2016, on which day the advocate was going to read the will to the family of the deceased.

13. He further stated that the deceased had never in his lifetime mentioned to him that he had appointed him as an administrator. It was also stated that Mr. Motanya had informed the family that nobody knew about the will except Joel Ngeny who was a witness when the will was being prepared. The petitioner stated that he was present during the meeting on the 13/5/2016, together with the family of the deceased and clan members, and the will was read by advocate Motanya, and he accepted the responsibility of being an administrator of the estate.

14. He stated that the deceased 1st wife openly protested, and walked out of the meeting saying that she did not agree with the manner in which the properties had been distributed.”

15. The parties filed written submissions which I have duly considered. The objector submitted that the alleged will of the deceased herein was neither authored nor signed by him, and the same was a forgery, as the signature on the purported will bore glaring inconsistencies to other documents signed by the deceased, and the said will is therefore invalid and a nullity.

16. It was submitted by the objector that she is a joint owner of the parcels of land known as Kericho/Kapsuser/2381and Kericho/Kapsaos/2185 , and her indefeasible ownership is in accordance with the doctrine of survivorship as she is the widow of the deceased; and further that the parcel of land Kericho/Kapsaos/915 was their matrimonial home on which the objector always resided, and this parcel of land falls into the category of matrimonial property, and thus does not form part of the deceased estate.

17. The objector also submitted that the disputed will, is by virtue of contravention of section 11 of the Law of Succession Act invalid, as the Advocate and commissioner for oaths by the name Maengwe was not present when the testator allegedly executed the disputed will.

18. It was further submitted by the objector that the deceased did not have the testamentary capacity to make the will as he suffered from diabetes and epilepsy, diseases that have a great impact on the brain of a person thus affecting his judgment making the will invalid.

19. The petitioner on the other hand submitted that the deceased was well aware of the exercise he was undertaking while making the will and that there was no undue influence or coercion on the deceased while making the will, and that he knew and understood the contents of the said will. It was also submitted that the objector had failed to discharge the burden of proof on the deceased’s mental incapacity to warrant the court to invalidate the will.

20. The petitioner submitted that although the appointment of the petitioner as the executor of the deceased will did not go well with the objector, the said appointment is at the discretion of the deceased as provided for in section 6 of the Law of Succession Act.

21. It was further submitted by the petitioner that whereas the objector has alleged that the signatures on the subject will was forged, section 109 of the Evidence Act, places the burden of proof on whoever alleges, and further that the court cannot rely solely on the document examiner’s report and his opinion that the said signatures had significant dissimilarities.

22. The issues for determination in this case are as follows: -i.Whether the Will dated 9/4/2012 is a forgery.ii.Whether the Will dated 9/4/2012 is valid.iii.Whether the property bequeathed in the Will belongs to the deceased.iv.How should the property devolve?v.Who pays the costs of the Objection Proceedings?

23. On the issue as to whether the Will dated 9/4/2012 is a forgery, the Objector’s evidence was that the signature on the Will did not belong to the Deceased.

24. The Objector called an Expert witness – OW.3 a document Examiner who made a Report dated 19/2/2018 which he produced as an Exhibit in this Court.

25. The Document Examiner compared the questioned signature and the Deceased’s known signature and said in his opinion, the signatures were made by different authors.

26. The Petitioner called the witnesses to the Will PW.3 and PW.4 who said they were present when the Deceased signed the Will.

27. I find that the duty to prove that the Will was a forgery is upon the person who alleges it and in this case the objector.

28. In Evans Otieno Nyakwana Versus Cleophas Bwana Ongaro (2015), eKLR, the high court stated as follows: - “As a general proposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of section 107(1) of the Evidence Act (Chapter 80 of the Laws of Kenya), which provides:“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.”

29. Further, the high court in Alice Wanjiru Ruhiu Versus Messiac Assembly of Yahweh [2021] eKLR, stated as follows: - “It is a principle of law that whoever lays a claim before the court against another has the burden to prove it. Sections 107 and 108 of the Evidence Act provide as follows:107 “(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. 108. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.”

30. The Objector is relying on the evidence of OW.3, the Document Examiner. However, the document Examiner is an Expert witness and his evidence is based on his opinion.

31. The two witnesses who were present when the deceased made the will testified before this Court and I believe their testimony that it was the deceased who made the will dated 9/4/2012.

32. If indeed the Objector had evidence that the Will is a forgery, she should have availed the same and the witnesses would have been charged.

33. Forgery is a Criminal Offence and the standard of prove required to prove a Criminal Case is beyond reasonable doubts.

34. The Objector did not even state the particulars of any fraud or forgery and there is no evidence that the will is a forgery.

35. The Document Examiner stated that in his opinion, the questioned signature on the Will and the deceased’s known signatures were authored by different persons. That evidence is not enough to establish that a crime was committed by the witnesses.

36. I therefore find that there is insufficient evidence to establish that the will dated 9/4/2012 is a forgery.

37. On the issue as to whether the said Will is valid, the Objector challenged it on two ground, firstly that the deceased did not have the required testamentary capacity to make the Will and secondly, that some of the properties bequeathed do not belong to the deceased.

38. The Objector said that the deceased was ailing from epilepsy and diabetes and was therefore not mentally fit to make the will.

39. There is a rebuttable presumption that whoever makes a Will has the capacity to do so.

40. Section 5 of the Law of Succession Act states as follows: -5. Persons capable of making wills and freedom of testation(1)Subject to the provisions of this Part and Part III, every person who is of sound mind and not a minor may dispose of all or any of his free property by will, and may thereby make any disposition by reference to any secular or religious law that he chooses……………..(3)Any person making or purporting to make a will shall be deemed to be of sound mind for the purpose of this section unless he is, at the time of executing the will, in such a state of mind, whether arising from mental or physical illness, drunkenness, or from any other cause, as not to know what he is doing.

41. The duty to prove that the Deceased did not possess the testamentary capacity to make the will lies with the Objector.

42. The Objector did not adduce evidence to show that the deceased was not in a state of mind to Execute the will on 9/4/2012.

43. The Objector did not produce any medical Report to show the deceased’s health condition and neither did she call any witnesses to attest to the same.

44. The Petitioner’s witnesses (PW.3 and PW.4) gave evidence which is not challenged that the deceased called them and they witnessed the making of the will which was drafted by PW.4 at the instruction of the deceased.

45. The deceased made the will in the presence of two witnesses and it met the threshold of a valid written will. The absence of Mr Maengwe did not invalidate the will. I find that the will is valid.

46. On the issue that some of the properties bequeathed in the will dated 9/4/2012 do not belong to the deceased by virtue of the Principle of survivorship, the Objector said she is a Joint owner with the deceased of the properties Kericho/Kapsaos/2185 and Kericho/Kapsuser/2381.

47. The Objector also said land Parcel Kericho/Kapsaos/915 where the matrimonial home is situated was acquired by herself with the deceased.

48. The Objector submitted that the said properties were jointly owned and upon the demise of the deceased, the beneficial interest in the properties automatically pass to the surviving Co-owner by virtue of the Principle of Survivorship.

49. In Isabel Chelangat Versus Samuel Tiro Rotich & 5 others (2012), eKLR, the court stated as follows: - “A joint tenancy imparts to the joint owners with respect to all other persons than themselves, the properties of one single owner. Although as between themselves joint tenants have separate rights, as against everyone else they are in the position of a single owner. Joint tenancy carries with it the right of survivorship and “four unities”. The right of survivorship (just accrescendi) means that when one joint owner dies, his interest in the land passes on to the surviving joint tenant. A joint tenancy cannot pass under will or intestacy of a joint tenant so long as there is a surviving joint tenant as the right of survivorship takes precedence.”

50. In Re Estate of Johnson Njogu Gichohi (deceased) (2018) eKLR, the court stated as follows: - “By the principle of survivorship land owned jointly passes automatically to the surviving owner when one dies without the need to file a Succession Cause. W. M. Musyoka in his book Laws of Succession at page 3 states as follows: - “Property is capable of passing upon death other than by will. It may pass by survivorship…….. This applies in cases of joint tenancies that is, where property is jointly owned. Where a co-owner of property is a beneficial joint tenant of the property, their interest will automatically/pass to the surviving tenant upon their death by virtue of the principle of survivorship…… The principle of survivorship operates to remove jointly owned property from the operation of the law of Succession upon the death of one of the joint tenants.”

51. I find that this evidence was not disputed by the Petitioner. The Petitioner is a brother of the deceased’s second wife who got married to the deceased in 2004 until his demise on 19/4/2016.

52. I find that the Objector has proved that she was the Co-owner with the deceased of Kericho/Kapsaos/2185 and Kericho/Kapsuser/2381 and upon his demise, she became the owner of the said properties under the Principle of survivorship.

53. I therefore find that although there is no evidence that the deceased did not have the testamentary capacity to Execute the Will, the deceased cannot bequeath the two properties which he jointly owned with the Objector since his beneficial interest terminated upon his demise.

54. I accordingly direct that the properties not disputed to devolve in accordance with the Will dated 9/4/2012. This applies to Paragraphs (b), (d), (e), (f) and (g).

55. I further direct that the properties belonging to the Objector Rosemary Ruto to wit Kericho/Kapsaos/2185 and Kericho/Kapsuser/2381 to be registered in her name. The same be removed from the list of the deceased’s properties.

56. On the issue of costs, I direct that each party to bear its own costs of the Objection proceedings.

57. It is not clear why the Executor applied for grant of letters of adminstration instead of grant of probate since there was a Will.

58. Since the Court has ruled that the will is valid, the Executor to be issued with Grant of Probate in respect of Paragraphs (b), (d), (e), (f) and (g) of the Will dated 9/4/2012.

59. For avoidance of doubt, the bequests on paragraphs (a) and (c) of the will dated 9/4/2012 must fail for reasons that the said properties belong to the Objector Rosemary Ruto and the same to be registered in her name.Orders to issue according.

DELIVERED, DATED AND SIGNED AT KERICHO THIS 14TH DAY OF OCTOBER, 2022A. N. ONGERIJUDGE