[2021] KEHC 3972 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

SUCCESSION CAUSE 5 OF 2017

IN THE MATTER OF THE ESTATE OF; JPN VG (DECEASED)

RPAB

IAMVG..............................................................................PETITIONERS

VERSUS

ANW.................................................................................1ST OBJECTOR

D-AVG.............................................................................2ND OBJECTOR

RULING

1. The deceased herein JPN VG died testate on 14th June, 2016 while domiciled in Nyali Mombasa. On 27th March, 2017, RP AB petitioned the court for a grant of probate. Annexed to the petition is a letter from the Assistance chief Kongowea Sub -location listing the children of the deceased as; JVG (son), IAVG (daughter), FCVG (son) and D-AVG (daughter). The chief also recognized that the deceased had left two widows one from Kenya and another from Holland.

2. The estate was gazetted as an intestate estate on 23rd June, 2017 vide gazette notice No 6077. Subsequently, the petition was on 14th May, 2018 amended basically to add Ingrid as a co- petitioner. A copy of the will said to have been executed by the deceased on 3rd November 2009 appointing the petitioners as executor and executrix (Trustees) respectively was attached.

3. Before a grant could issue, AN the deceased’s former wife (hereinafter the 1st objector) and her daughter DV (hereinafter the 2nd objector) moved to this court vide a summons for preservation of the estate( objection) dated 5th October, 2018 seeking; a temporary injunction preserving the estate; the petitioners to tender accurate inventory of the estate and, a declaration that the petitioners had intermeddled with the estate. Interim orders were issued on 11th November, 2018 thus preserving the estate. They claimed that; as the deceased’s wife and daughter, they had been excluded from inheritance; the will was a forgery and, that properties in Holland had been transferred.

4. In response, the petitioner filed a notice of preliminary objection dated 7th November, 2018 stating that; hearing of the objection was pre-mature and a nullity for contravening Kenyan and Netherland laws on succession; objection cannot issue before a grant is issued; objector is guilty of material non-disclosure of a consent judgment recorded in court on Nyali property in a divorce cause ; objection is incompetent and vexatious; objector’s intention is to benefit twice out of Nyali property which was shared out in divorce proceedings; 1st objector was fully compensated in divorce proceedings; 2nd objector is not a beneficiary as her paternity is disputed in the will and testator’s wishes should be respected.

5. Subsequently, the court directed that statusquo be maintained and that the petition be heard together with the objection. However, on 21st March, 2019, the objectors filed answer to petition and petition by way of cross petition for a grant. They claimed that the will upon which the petition was based was a forgery hence the deceased had died intestate. That being wife and daughter to the deceased, they ought to have been included as lawful beneficiaries pursuant to the divorce proceedings in divorce case No xx/2004 in which the court recognized and ordered the deceased on 17th August,2012 to maintain the objectors as wife and daughter respectively.

6. They further claimed that vide a consent order in Civil Appeal No. 127 of 2011, property known as CR No xxxx sub-division No xxx was to be sold and proceeds shared out in the ratio of 55:45% in favour of the 1st objector and the deceased respectively. They relied on the description of the estate in the Kenya gazette as an intestate estate to vindicate their claim that the deceased left no will. They urged the court to grant them a grant of letters of administration intestate and also provide for liability against the estate at 136,000 Euros being the outstanding arrears on maintenance.

7. In reaction to answer to petition and cross petition, the petitioner filed a response conceding that there was a consent in which the Nyali property was to be disposed of and proceeds shared between the 1st objector at 55% and the deceased at 45% thus settling the issue of maintenance in full hence no liability against the estate and that the 1st objector cannot lodge further claim on the estate.

8. They averred that; the annexed will was not a forgery; the original will was forwarded to the deceased’s lawyer in Netherlands after being registered in the lands office as evidenced by a stamp on its face; no particulars of forgery had been stated and proved and that, the 2nd objector was not recognized as a beneficiary on the will.

9. It was further averred that the issue before court is for issuance of a grant and not distribution of the estate and that part of the estate has already been dealt with before a Netherlands court according to Dutch succession laws pursuant to the will herein and that the 2nd objector had obtained orders in a Netherlands court freezing the accounts.

10. By way of a rejoinder, the objectors were allowed by consent to file a further affidavit which they did on 15th December, 2020 stating that; the consent order in the divorce proceedings was between the 1st objector and the deceased but not the 2nd objector; that the sale of Netherlands property was illegal and that the maintenance arrears are still outstanding.

Objectors’ case.

11. During the hearing, the 1st objector (Pw1) testified on her own behalf and that of the 2nd objector. She adopted the averments contained in the affidavit sworn on 11th June, 20. She confirmed that the deceased was her husband with whom she had divorced. That the deceased went missing sometime January, 2016 until his body was found on 14th June, 2016 which informed the date of his death.

12. She maintained that the deceased did not leave any will. She told the court that the deceased could not have given his properties to other people without including all his children among them the 2nd objector. On cross examination, she admitted that there was a consent recorded in court comprising her maintenance claim. She further stated that the will was not a forgery.

13. She deposed that she relied on the Kenya gazette notice which described the estate as an intestate estate to conclude that there was no will left. On the demand that her daughter’s DNA be done to confirm paternity, she was amenable. She acknowledged that she had been given 55% share in the Nyali property.

Respondent’s/petitioner’s case

14. In his testimony, RP(Rw1) a son in law to the deceased and husband to the second petitioner stated that the wrong description of the estate as an intestate estate was not his mistake but that of the court. He further stated that there is already a certificate of inheritance issued in a Netherlands court dealing with properties in Netherlands only and that Kenyan property should be dealt with in accordance with the Kenyan succession laws hence institution of these proceedings.

15. He told the court that for the second objector to get a share out of the estate of the deceased she must undergo DNA test to determine paternity. He maintained that the will was genuine and that the Netherlands court had used the same in distributing part of the estate. He however admitted that they had sold some property in Netherlands at 225,000 Euros.

16. Ingrid the second respondent /petitioner (Rw2) corroborated her husband’s testimony. She emphasized that the will was genuine and that she came to know of it after a lawyer by the name of Okata called her thus forcing her to travel to Kenya to see it. She however admitted that D (2nd objector) was her step sister and a daughter to the father.

17. M/s Okata (Rw3) an advocate of the High court of Kenya confirmed preparing the will in question dated 3rd November, 2009 and that it was executed by the deceased who was his client before. She stated that it was the deceased who did his will in his handwriting but had it reproduced into typed version.

18. Upon close of the hearing, parties agreed to file submissions.

Objectors’ submissions

19. Through the firm of Kiragu Wathuta, the objectors filed their submissions on 17th March, 2021. Mr Wathuta flagged four issues for determination as follows;

(1) Whether there exists a valid will and testament of the deceased.

(2) Whether the petitioners herein have authority to manage and control the assets prior to the issuance of a grant.

(3) Whether the objectors herein are lawful beneficiaries and dependants of the deceased

(4) Whether the objectors are entitled to reliefs sought in the cross petition.

20. With regard to the first issue, counsel submitted that the will submitted before court is not an original will but a copy contrary to Section 51 (3) of the Law of Succession Act hence a nullity and cannot support a probate cause. Learned counsel placed reliance on the decision in the case of In re Estate of Charles Mwaniki Kamara (deceased) (2020) e KLR where the court emphasized that where there is a written will the original or an authenticated copy shall be annexed to the petition.

21. It was further submitted that the evidence by Rw1 and Rw2 (petitioners) on how they came into possession of the will which was drawn in Kenya was inconsistent as there was no documentary proof of their travelling from Netherlands to Kenya. Counsel further submitted that the two witnesses who witnessed execution of the will never testified thus further casting doubt on the existence of the will.

22. Mr Wathuta further contended that the description of the estate as an intestate estate in the Kenya gazette was sufficient proof that there was no will in place. To buttress this position, Mr Wathuta relied on the holding in the case of In re Estate of Festo Lugadiru Abukira ( deceased) 2019) e KLR where the court held that an estate of a person who has died testate cannot be disposed as an intestate estate and vice versa.

23. Further, learned counsel contended that Rw3 M/s Okata was unable to reconcile the content contained in the deceased’s hand written notes and what is in the will as the notes did not distribute the estate as per the will.

24. Touching on the 2nd issue, Mr Wathuta submitted that in the absence of a temporary grant, or authority from the court, petitioners had no power nor capacity to dispose, manage or control the deceased’s properties. That by disposing of part of the estate in Netherlands, the respondents/ petitioners were committing acts of intermeddling with the estate hence a criminal offence contrary to Section 45 and 55 of the Law of Succession. To support this position, the court was referred to the finding in the Estate of Josphat Githuta Mutua (deceased)(2020) e KLR where the court declared sale of estate assets without court’s authority a nullity.

25. Mr Wathuta further contended that under Section 16 the Law of Succession, the will having been executed in Kenya and the deceased having died in Kenya, the court with competent jurisdiction to hear succession proceedings is the Kenyan court under the Kenyan Law of Succession and not the Netherlands the deceased’s home country.

26. Regarding the 3rd issue, counsel opined that the objectors herein are lawful beneficiaries and dependants pursuant to Section 26 and 29 of the Law of Succession Act which recognizes a wife or former wives and children of the deceased as dependants of the deceased person. Learned counsel contended that Rw2 (2nd petitioner) had on cross examination admitted that the second objector was her step sister and the daughter of the deceased. Further, that the 2nd objector was recognized as a daughter of the deceased during the divorce proceedings in which the deceased sought custody of the baby (2nd objector). That under Section 27 of the Law of Succession, this court has jurisdiction to make an order for reasonable provision. To justify this position, reference was made in respect of the estate of Lusila Wairu Waweru (deceased) (2020) e KLR.

27. Learned counsel dismissed the claim for DNA test as paternity is not an issue. Counsel urged that Section 3 (2) of the Law of success Act recognizes even a child born out of wedlock but recognized and accepted as a child. To fortify this argument, reference was made to the case of Re Ngengi Muigai and Another Vs Peter Nyoike Mungai & 4 Others ( 2018) e KLR.

28. Concerning the 1st objector, counsel opined that she was a dependant to the deceased and that divorce maintenance orders were never implemented prior to the deceased’s death as the consent was not adopted as an order of the court.

29. As to the question whether the objectors are entitled to the prayers sought in the cross- petition, counsel submitted that, in the absence of a will, a grant of letters of administration intestate is appropriate hence the same should issue to the objectors.

Petitioners’ submissions.

30. On their part, the petitioners filed their submissions on 13th April, 2021 through the firm of Osino and Co. Advocates citing six issues for determination as follows;

(a) Whether the will was valid.

(b) Whether the objectors are dependants of the deceased.

(c)Whether the procedure being followed of obtaining the grant of probate is proper.

(d)Whether the will can be varied to provide for persons left out.

(e)Whether there is intermeddling with the estate of the deceased

(f)Who should pay costs.

31. Submitting on the first issue, M/s Osino urged that the will in question was executed in compliance with Section 11 (c) of the Law of Succession Act in the presence of two witnesses and that the original will was attached to the petition. To support that position, the court was referred to the case of In re Estate of Magayu (deceased) (2018) e KLR.M/s Osino asserted that no particulars of forgery of the will were cited hence that allegation is not proven.

32. As to gazettement of the estate as an intestate estate, counsel contended that the same was an error which can be corrected hence curable under Article 159 (2) of the Constitution. On the issue of the deceased’s hand written notes given to Rw1 to prepare the will, counsel submitted that there was no discrepancy with the will. That there was no proof that the deceased was not in possession of the testamentary capacity to make a will and that his signature was not challenged.

33. On the question of dependency by the objectors, Ms Osino stated that no application has been made under Section 26 and rule 45 of Probate and Administration rules for reasonable provision. That in any event, the 1st objector is a first wife whose interest in the Nyali property was settled in divorce proceedings through a consent order in which she got 55% against 45%. That to allow her claim out of the 45% stake will benefit her twice.

34. Learned counsel urged the court to apply its discretion under Section 27 of the Law of Succession Act not to make any provision for the objectors as they have already benefited. Counsel further urged the court to allow issuance of a grant to the petitioners and then subject the 2nd objector to DNA test to determine paternity.

35. On issue No. 3, counsel submitted that the gazettement of the estate as an intestate estate is not fatal hence can be rectified before the grant can issue. As to whether a will can be interfered with to provide for a person left out (issued No 4), counsel contended that that prayer is premature as it should await confirmation stage.

36. Reacting to the issue of intermeddling (issue No 5), counsel urged that the sale of Netherlands property was pursuant to a certificate of inheritance issued by the Dutch court which grant has not been challenged yet. That the Nyali property being immovable property in Kenya, the Dutch court could not make a determination hence this petition before this court as the correct forum. In that regard reliance was placed in the case of Ketan Morjaria Vs Hemlata Rajnikant Karia ( 2016) e KLR where the court held that before filing a suit, a party must determine the forum most suitable for the ends of justice to be met.

37. As to costs, counsel condemned the objectors for deliberately delaying the matter hence liable to bear the same. In support, she relied on the case of Mugambi Mukura Vs Fredrick Marangu Ndegwa ( 2011) e KLR

Analysis and determination.

38. I have considered the petition herein, answer to petition and cross petition together with the supporting materials thereof. I have also considered oral evidence tendered by both parties and rival submissions by their respective counsel. Issues that arise for determination are;

(1) Whether the deceased left a valid will.

(2) Whether the objectors are dependants and therefore beneficiaries of the estate.

(3) Which party is entitled to a grant of representation.

(4) Whether there is intermeddling with the estate by the petitioners

(5) Who will bear costs.

Whether the deceased left a valid will.

39. When the petitioners/respondents filed their petition, a copy of the will allegedly signed by the deceased on 3rd November 2009 was annexed. Indeed, the original copy was not filed. This will has been challenged on various grounds already alluded to herein above. The validity of the will is in question. Who has the capacity to make a valid will? Section 5 of the Law of succession does provide as follows;

(1)Subject to the provisions of this part and part III, any person who is of sound mind and not a minor may dispose of all or any of his free property by a will, and may thereby make any disposition by reference to any secular or religious law that he chooses.

(2) A female person whether married or unmarried, has the same capacity to make a will as does a male person.

(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.

(4) The burden of proof that a testator was at the time he made any will, not of sound mind shall be upon the person who so alleges.

40. In the case of Elizabeth Kamene NdoloVs George Matata Ndolo ( 1996) e KLR the court of Appeal had this to say;

“This court must, however, recognize and accept the position that under the provisions of section 5 of the Act every adult Kenyan has unfettered testamentary freedom to dispose of his or her property by will or any manner he or she wishes. But like all freedoms to which all of us are entitled the freedom to dispose of property given by Section 5 must be exercised responsibly and a testator exercising that freedom must bear in mind that the engagement of the freedom, he or she is not entitled to hurt those for whom he was responsible during his or her lifetime. The responsibility to the dependants is especially recognized by Section 26 of the Act which provides as follows….”

41. The court went further to state thus;

“So that if a man by his will discriminates his wife who was dependent on him during his life time, the court will interfere with his intention to dispose of his property by making reasonable provision for the discriminated wife”.

42. From the above provision, it is clear that the wishes of a testator must be respected at all times. However, at the discretion of the court if justice so demands, such wishes can to some extent be tempered with where necessary to make some reasonable provision to those dependants that may have been left out of the will without any justifiable cause.

43. In the instant case, nobody has challenged the mental capacity or soundness of the deceased at the time the will was alleged to have been signed.

44. Section 5 above quoted is further amplified by Section 11 of the Law of Succession which provides that no will shall be valid unless-

(a) the testator has signed or affirmed 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 the 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 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.

45. The objectors claimed that the will was forged. However, no particulars of forgery were stated. It is trite that he who alleges must prove. Section 107 of the Evidence Act clearly provides that a person seeking judgment in his favour relying on some facts must prove the existence of those facts. Mere allegation of forgery without proof is not sufficient enough.

46. Among the grounds relied on to prove that the will was not valid is that, the notes made by the deceased which the advocate who drew the will relied on is not a true reflection of what is contained in the will.

47. RW3 M/s Okata the Advocate who prepared the will told the court that she relied on the handwritten notes provided by the deceased in which he expressed his wishes on how he wanted his will to look like or contain. At page 370 of the petitioner’s bundle of documents filed on 26th August, 2019 in response to the cross petition, the said handwritten notes have been attached. From those notes, the deceased appointed the petitioners as executor and executrix (trustees) of his estate and as the only beneficiaries. In the same notes, he excluded from his inheritance two of his sons F and J plus the objectors.

48. From my perusal, what is contained in the notes is clearly what is captured in the will. There is no dispute that the handwritten notes were made by the deceased. The deceased’s signature in the will has not been questioned. The signature of the deceased in the will is in fact intact with no alteration hence no reason to disbelieve the authenticity of the will.

49. The other issue raised to challenge the veracity of the will is that witnesses who witnessed its execution were not called. The law provides that a will should be witnessed by not less than two witnesses. Ms Okata did draw and attest the will. She witnessed the deceased sign the will. It is noteworthy that there is no mandatory requirement that a will be drawn by an advocate. But where an advocate draws one, he or she is deemed to have witnessed its execution hence a witness. I have no reason to doubt that the deceased did sign the will in the presence of M/s Okata who had nothing to benefit by falsifying the will.

50. The 3rd ground cited is that, the original will was not produced. Indeed, it is a requirement that an original will must be annexed to the petition in conformity with Section 51 (3) of the Law of Succession Act. In this case, Rw1(1st petitioner) said that the original will is in a safe in Netherlands and that it was produced before the Dutch court which was handling a succession case in respect of the property located in Netherlands.

51. However, Section 51 (3) provides that where the original cannot be availed for some reason, an authenticated copy should be filed. The copy filed in court bears land’s office stamp a reflection that it was registered there. Considering that the will was produced in the Netherlands court and the copy is authenticated by the land registry stamp, I have no reason to doubt the validity of the will which in any event I have stated is in existence and should be availed in court for its safe custody.

52. I would also add that, in practice, for the safety of sensitive documents, courts have always allowed certified copies of wills filed in court and whenever need a rises, an original copy is ordered for verification. To that extent, I do not find the absence of the original will fatal. However, the petitioners shall if necessary, be asked to deposit it in court.

53. Mr. Wathuta also relied on the description of the estate as an intestate estate in the Kenya gazette as sufficient proof of the non-existence of the will. I do confirm that the petition presented before court was for a grant of probate. However, the Deputy Registrar when forwarding the gazette notice to the government printer erroneously indicated that it was an intestate estate. This was an administrative error which cannot be visited on any party. It has nothing to do with the validity of the will. It is a normal occurrence in our family division registries and not unique to this case. The same can be corrected by way of doing acorrigenda before issuance of the grant. See Philip Chemwolo and Another Vs Augustine Kubende (1982-89) KAR 103in which Apollo J A stated as follows;

“Blunders will continue to be made from time to time and this does not follow that because a mistake has been made that the party should suffer the penalty of not having his case heard on merits. …I think the broad equity approach to this matter is that unless there is fraud or intention to overreach there is no error or default that cannot be put right by payment of costs. The court as it is often said exists for the purpose of the deciding the rights of the parties and not for the purpose of imposing discipline”.

54. Having considered all the grounds cited to declare the will invalid none of them is compelling enough. For those reasons, it is my finding that the will in question was properly executed by the deceased and the same is valid.

Whether the objectors are dependants and therefore beneficiaries of the estate.

55. There is no dispute that the 1st objector is a former wife to the deceased and the 2nd objector whose paternity seems to be put into doubt in the will is also named as a daughter. I would like to first clarify on the issue whether the 2nd objector was a daughter to the deceased or not. The petitioner claimed that, the 2nd objector is not a daughter to the deceased hence DNA has to be done.

56. However, from the chief’s letter attached to the petition filed by the petitioners, the 2nd objector is named as a daughter to the deceased. Why would they give her name as a daughter yet turn round and deny that fact? In her cross examination, Rw2 (2nd petitioner) admitted that the 2nd objector is a step sister and a daughter to the deceased. Besides, In the divorce and maintenance proceedings in divorce cause No. xx/2004 filed by the deceased against the 1st objector, he recognized the 2nd objector as his daughter. Why deny the paternity relationship between the deceased and 2nd objector. The expression of doubt on paternity in the will does not supersede his evidence of admission while he was alive. DNA test is normally ordered as a last result where there is no other evidence to be relied on to prove paternity. I do hold that there is sufficient evidence on record to establish that the 2nd objector was a daughter to the deceased hence no need for DNA.

57. Under Section 3 (2) of the Law of Succession Act, a child in relation to succession proceedings includes, a biological child or a child born out of wedlock or any child legally recognized or accepted as one’s child for whom he has accepted voluntarily and assumed permanent responsibility. In the circumstances of this case, the deceased prior to his death had assumed full responsibility over the 2nd objector as his daughter. The DNA result will be immaterial since a child for purposes of succession need not necessarily be a biological child.

58. Having held that the 2nd objector was a daughter to the deceased, was she and the mother (1st objector) dependants. Section 29 of the Law of Succession defines a dependant as;

(a) the wife or wives or former wife or wives and the children of the deceased whether or not maintained by the deceased immediately prior to his death.

(b)…

59. From the reading of Section 29 above quoted, the category of dependants under paragraph (a) is special and automatic in nature. They do not need to prove that they were under the maintenance of the deceased immediately prior to his death. See in re Estate of the late Annelies Anna Graff (2019) e KLR where the court held;

“Section 29 (a) creates as special category of dependants who are dependants due to their relationship to the deceased. Here the wife, wives, former wife or wives and the children of the deceased are automatic dependants and it is immaterial whether or not they were being maintained by the deceased immediately prior to his death”.

60. In view of the undisputed facts that the objectors fall under category (a) of the Law of Succession, they are for all purposes and intent dependants to the deceased.

61. Having held as above, the last question will be whether they are entitled to a share as beneficiaries. This issue has strongly been argued and submitted on. The deceased did not make any provision for the objectors. However, as stated in the case of Elizabeth Kamene(Supra) this court can intervene and provide for reasonable provision without necessarily dishonoring the wishes of the deceased.

62. In the case of Sospeter Kimani Waithaka succession cause No. 341/1998, the court had this to say ;

“The will of the deceased must be honored as much as it is reasonably possible. Re-adjustments of the wishes of the dead by the living must be spared for only accentric and for only unlawfully harmful testators and weird wishes. But in the matters of normal preferences for certain beneficiaries or dependants, may be for their social goodness to the testator, the court should not freely intervene to alter them”.

63. The objectors demanded for a share out of the deceased’s 45% share in the Nyali property. The petitioners argued that the objectors already have 55% of the same property hence cannot benefit twice.

64. Having declared that the 1st and 2nd objectors are dependants, the issue of whether they should get a share or not will have to await confirmation. It is at this stage that they will be entitled to file an application seeking reasonable provision. I do not want to pre- empty the likely finding at this stage. The court will then determine whether they deserve reasonable provision or not. I will therefore not delve on the merits of application at this stage as it is premature.

Which party is entitled to a grant of representation.

65. The petitioners sought a grant of probate based on the will annexed. The objectors sought for grant of letters of administration intestate based on the claim that there was no will. Having held that the will was valid, automatically the applicable grant for issuance is a grant of probate which I do hereby direct to issue to the petitioners upon the Deputy Registrar submitting a corrected version of the gazette notice to government printer to reflect the estate as a testate estate.

Whether there is intermeddling of the estate by the petitioners.

66. The objectors claimed that the petitioners have since sold some property in Netherlands at 225,000 Euros a fact that is not denied. They also complained that the petitioners are managing, controlling and maintaining the Nyali property by engaging a gardener. The objectors further stated that, the sale of the Netherlands property was pursuant to a certificate of inheritance issued by a Dutch court a copy of which was produced as evidence which proceedings the objectors have since challenged.

67. Both parties claimed that this court has been called upon to determine immovable property located in Kenya. There is no dispute that similar succession proceeding were instituted before a Dutch court where part of the properties were shared except for Kenyan immovable property which is Nyali plot. Ordinarily, there should be only one succession case in respect of an estate. The Netherlands court should have dealt with the entire estate and then later have the grant for resealing in Kenya to enable execution process.

68. According to the petitioners, the Netherlands court refused to handle Kenyan based immovable properties hence the reason for this petition. Since both parties have conceded to this court’s jurisdiction, I will deal with the estate constituting Kenyan immovable property. To that extent, the property in Netherlands already dealt by a court of competent jurisdiction can only be handled by that court. If the court in Netherlands sanctioned distribution which culminated to the sale, this court cannot invalidate its order under the Kenyan Section 45 of the Law of Succession Act. To do so will amount to sitting on appeal against the decision of the Netherland’s court.

69. As to control and maintenance of the Nyali property, I think it was proper to avoid deterioration and wastage of the property. In any event, the role of an executor is to preserve the estate. I do not find any wrong doing in the circumstances. In a nut shell, the ground of intermeddling is misplaced.

Who bears the costs.

70. Regarding costs, the suit is pending. I will order that costs to await finalization of the suit.

71. Having found as above, I am inclined to make the following directions and orders.

(a) That the Deputy Registrar is hereby directed to prepare and submit a fresh gazette notice of the estate reflecting the estate as a testate estate

(b) That upon gazettement as directed in (a) above, a grant of probate of written will be issued to the petitioners jointly.

(c) That after 30 days from the date of issuance of the grant of probate, the petitioners to apply for confirmation of the grant.

(d) During the pendency of the application of confirmation, the objectors shall be at liberty to apply for reasonable provision out of the estate.

(e) That costs shall await finalization of the succession cause.

DATED SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 31ST DAY OF AUGUST, 2021.

J. N. ONYIEGO

JUDGE