[2022] KEHC 15593 (KLR)

In re Estate of Margaret Muthoni Chokwe (Deceased) (Probate & Administration 87 of 2016) [2022] KEHC 15593 (KLR) (16 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15593 (KLR)

Republic of Kenya

In the High Court at Malindi

Probate & Administration 87 of 2016

SM Githinji, J

November 16, 2022

IN THE MATTER OF THE ESTATE OF MARGARET MUTHONI CHOKWE – DECEASED)

Judgment

1. The Petitioners petitioned this Court for grant of Letters of Administration intestate on 24th May, 2016 in their capacity as children to the deceased, Margaret Muthoni Chokwe. The Petitioners were issued with Letters of Administration intestate to the deceased estate on 13th September, 2016.

2. The beneficiaries as listed in the Petition for grant of letters of administration are; -1. Grace Sally Chokwe – Daughter2. Beatrice Chokwe Mwinga – Daughter3. Joseph Thomas Chokwe – Son4. Jane Sidi Chokwe – Daughter5. Catherine Medishi Chokwe – Daughter6. Loice Murugi Chokwe – Daughter7. Carolyne Waithera Chokwe – Daughter8. Nelly Wendune Chokwe – Daughter

3. The Objector herein (Beatrice Chokwe Mwinga) filed an affidavit in protest against the confirmation of the grant which summons for confirmation of grant was filed on 4th March, 2022.

4. In the affidavit sworn by the Objector, who is also one of the administrators of the estate of Margaret Muthoni Chokwe (deceased), she stated that on 12th September, 2017, they filed a Petition for Summons of confirmation of grant together with an Affidavit in Support of the Petition bearing a list of all the eight beneficiaries together with a list and description of all the property left behind by the deceased.

5. She deponed that item No.2 on the description of property, all that parcel of land known as Plot No. Kilifi/Roka/1490 measuring approximately 0. 94Ha is where Margaret Muthoni Chowe’s (deceased) homestead stands. Further that the other beneficiaries have indicated that they intend to divide and sell all that parcel of land.

6. It was her statement that she objects to the intended division and sale of the homestead as her late mother’s instructions before her death was that the homestead be preserved for her grandchildren. That it was never the deceased’s wish to have her homestead sold upon her demise.

7. It was her proposition that the said land be held in trust by all the beneficiaries for the grandchildren as intended by the deceased. Further that the beneficiaries will not suffer adverse effects if the parcel of land is not sold.

8. The co-petitioners did not file any response to the objection.

Analysis and Determination 9. From the time of petitioning for Letters of Administration to the issuance of grant of letters of Administration, there is no disconnect amongst all the parties. The only contested issue is in respect of one property that is known as Plot No.Kilifi/Roka/1490. The objector herein maintains that it was her late mother’s instructions, before she died, that the subject property which was the homestead be preserved for the grandchildren.

10. The assertion by the objector raises the question of whether the alleged instructions/wishes of the late mother fall under the category of an oral will.

11. Section 9 of the Law of Succession Act provides; -1. No oral will shall be valid unless-a.It is made before two or more competent witnesses; andb.The testator dies within a period of three months from the date of making the will;c.Provided that an oral will be made by a member of the armed forces or merchant marine during a period of active service shall be valid if the testator dies during the same period of active service notwithstanding the fact that he died more than three months after the date of making the will.2. No oral will shall be valid if, and so far as it is contrary to any written will which the testator has made, whether before or after the date of the oral will, and which has not been revoked as provided by sections 18 and 19.

12. Proof of oral wills if there is any conflict in evidence of witnesses as to what was said by the deceased in making an oral will, the oral will shall not be valid except so far as its contents are proved by a competent independent witness.

13. From the provisions of Sections 9 & 10 of the Laws of Succession Act, it is clear that an oral will is valid when it’s made before two or more competent witnesses, where the testator dies within 3 months from the date of making the oral will and where there is no conflict as to what was said in relation to a written will where it exists.

14. In the present case, it is only the objector who alleges of the deceased oral wishes. The objector did not have anyone else swear an affidavit to corroborate her assertion. She did not also call witnesses to court in support of her assertion. It is trite that he who alleges must prove. I am of the view that the objector has not discharged her burden of proof as provided for under section 107 of the Evidence Act.

15. The upshot of the above is that the protest for confirmation of the grant fails. The estate of the deceased shall be distributed in the terms earlier upon agreed by the beneficiaries. The grant is so confirmed.

JUDGEMENT READ, SIGNED AND DELIVERED VIRTUALLY AT MALINDI THIS 16TH DAY OF NOVEMBER, 2022. ...................................S.M. GITHINJIJUDGEIn the presence of; -Miss Rutto holding brief for Mr Michira for the Petitioners....................................S.M. GITHINJIJUDGE16/11/2022Objector;-I request for proceedings.Court; -The objector be supplied with proceedings at her cost....................................S.M. GITHINJIJUDGE16/11/2022