[2022] KEHC 13618 (KLR)

In re Estate of Margaret Wachuka Muigai (Deceased) (Succession Cause 93 of 2019) [2022] KEHC 13618 (KLR) (6 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13618 (KLR)

Republic of Kenya

In the High Court at Kiambu

Succession Cause 93 of 2019

MM Kasango, J

October 6, 2022

IN THE MATTER OF THE ESTATE OF MARGARET WACHUKA MUIGAI (DECEASED)

Judgment

1. This is a Succession Cause over the estate of Margaret Wachuka Muigai (deceased). The deceased died on 15th March, 2016. Christopher M. Ndungi And John Kamau Ngigi (deceased) petitioned hereof for probate of written Will. The two petitioners are the executors of the deceased’s Will. A grant was issued to both executors dated 15th November, 2019. They filed a summons dated 3rd February, 2020 for confirmation of that grant. By that summons the petitioners sought distribution of the estate in terms of the deceased’s Will.

2. One of the deceased’s son, namely, Eiliud Mathu Muigai filed an affidavit of protest to the confirmation of grant. Eliud in that affidavit deponed that he had been authorised by his ‘co-objectors’ but he did not name in his affidavit, who the other protestors were. It was not until the matter was fixed for hearing of the summons and the protest that other children of the deceased informed the court that they did not consent to the distribution. Those who protested verbally before court were:-a.Rachel Wanjiru;b.Jacinta Wanjira; andc.Nancy Njeri.

3. The court ordered the protests be heard through viva voce evidence.

4. The advocate who drew the Will for the deceased Lawrence Maina Irungu relied on his affidavit in evidence, and also adduced oral evidence. His evidence was that he was instructed by the deceased to draw her Will. On 21st November, the advocate confirmed that the deceased appeared before him in person. He said he had been informed that the deceased health condition prevented her from climbing stairs. The deceased was suffering with arthritis in her legs and she walked with the aid of crutches. As a consequence, it was agreed on that date that he would meet the deceased in Ruaraka. The deceased travelled to that meeting place with a taxi. Present also were the two executors who were also the witnesses of the Will.

5. The advocate deponed in respect to the deceased that:-“… in my own assessment [the deceased] seemed to be in the right state of mind and in full control of all her mental faculties.That I wish to state that the deceased attested to the Will in my presence and the same was witnessed by Christopher Murangi Ndungi And John Kamau Ngigi [now deceased]”.

6. Christopher Murangi Ndungi (Christopher) by his evidence stated that the deceased looked for him wishing to talk privately to him and his co-petitioner (now deceased). Christopher had known the deceased for about 20 years. Christopher and his co-petitioner met deceased at Heri Square Hotel in Ruaraka in July 2013. The deceased arrived by taxi. Christopher said that the deceased walked with crutches. They had lunch together.

7. The deceased informed them that she had decided to tell them both, since they were close friends of what she wished would happen to her estate when she died. Christopher told the deceased it was necessary to tell it to a lawyer. The deceased retorted that she had informed them of her wishes and she requested them to go and tell it to the lawyer. Christopher relayed the wishes of the deceased to the advocate Lawrence. The advocate wrote what Christopher told him but insisted that he needed to meet the deceased in person. The meeting was on 21st November, 2015. The deceased arrived by taxi. Present was Christopher the advocate, John Ngugi (deceased), Rosemary Wangui Murangi (Christopher’s wife) and the deceased. On being shown the draft will and it being read and interpreted in Kikuyu language, the deceased suggested an amendment be made. The advocate left the meeting venue to amend the Will. On his return he read the Will to the deceased in Kikuyu language before the deceased signed it. Christopher confirmed that he also read the Will.

8. Christopher further stated that apart from the health problems, the deceased was experiencing with her legs she otherwise was well and of sound mind. Christopher stated that the deceased by her Will distributed immovable property in Kiambaa equally between the sons and because the daughters were married deceased divided the Maragua property equally between them. That because deceased’s son John Njenga looked after the deceased in her last years, deceased bequeathed him money in her bank account.

9. On being cross examined, Christopher said that he used to meet deceased in functions that took place at his in-law’s home. That it was on such onetime the deceased told him she desired to meet with him. That it was because Christopher had successfully distributed another estate of nother deceased person that the deceased hereof requested him to be an executor of her Will. Further, Christopher stated:-“Deceased gave us instructions of what she wanted in the Will. Those were her desires in that Will.”

10. Eliud Mathu Muigai (Eliud) in his affidavit in protest stated that his deceased mother was sick for a long time and was not capable of making the Will. That the deceased was placed in a room by his sibling John Njenga and other sibling were not given access to their deceased mother. Eliud further stated that the deceased had no capacity to write the Will or that she was coerced to write it. Eliud stated that the reason he holds the Will could not have been his deceased’s mother’s Will was because deceased distributed the property at Kiambaa to her sons including Eliud yet the deceased’s daughter had built their houses on that property. Further, Eliud through his affidavit of protest deponed:-“That I have every reason to belief (sic) that the said Will was not made by our mother because there is no way our deceased mother could give the Bank account with a total value of Kshs.20,000,000 and shares in 8 different companies to the said John Njenga Muigai the same person who has kept her under lock.”

11. In oral evidence, Eliud stated that the Will was the product of collusion between his siblings John Njenga and Mary Wambui. That it was those siblings who directed the deceased on how to write the Will.

12. On being cross examined, Eliud admitted that no evidence had been adduced showing deceased suffered from mental ill health.

13. Rachel Wanjiru a daughter of deceased did not know of how the Will was written. She however stated that John Njenga chased her away from the family property and for 22 years she had rented a house.

14. Jacinta Wanjira, also a daughter of deceased simply stated deceased had been ill for a long time. She however conceded there was no medical evidence to prove the deceased mother was sick for a long time.

15. Nancy Njeri another daughter of deceased stated that deceased was very sick and that her siblings John Njenga and Mary kept the deceased locked up on pretext that Nancy had bewitched her.

Analysis and determination 16. The one and singular issues that arise for discussion is:-Whether the deceased lacked testamentary capacity to give instructions to the advocate to prepare a Will:

17. The advocate gave evidence how he drew the Will and witnessed the deceased execute it which execution was witnessed by two people. Christopher, one of those witnesses was the first to be approached by the deceased. After their meeting, that is, the deceased Christopher and his co-executor (now deceased), the deceased revealed she wanted to have a Will written. The advocate and Christopher stated that the deceased had clarity of mind she even made suggestion of amendment to the will which was affected by the advocate. The advocate in particular was clear that the deceased was competent to give instructions and to sign the Will. The deceased was stated to suffer from arthritis. Her death certificate shows the cause of death was arthritis. The deceased suffered from arthritis which seems to impair her movements. There is no evidence that such illness interfered with deceased’s general powers and factuality of her mind. There is no connection between the deceased’s illness of arthritis which would render the Will liable to be overthrown on the ground of the deceased’s incapacity. It ought to be stated that Section 5 of the Law of Succession Cap 160 presumes the maker of a Will to be of sound mind. The burden of proving lack of capacity on account of lack of sound mind lies on the person alleging that the deceased lacked such capacity.

18. It follows that the protestors had the burden to prove deceased lacked capacity or that she signed the Will under coercion or was caused by fraud.

19. Protestors failed to meet that burden of proof. Other than casting aspersions on their siblings John Njenga and Mary which lacked evidence, there is no evidence adduced which shows the testator lacked capacity. On the evidence before court, the disease of arthritis did not affect the disposition made by the deceased in her last Will and testament dated 21st November, 2015. That Will complied with the requirement of a valid Will as provided under Section 11 of Cap 160.

20. The judgment of this Court is that the testator’s Will of 21st November, 2015 is a valid Will.

21. I order that a fresh grant be issued in the name of Christopher M. Ndungi and that the said grant be confirmed as prayed in the summons of confirmation dated 3rd February, 2020.

22. There shall be no orders as to costs.

JUDGMENT DATED AND DELIVERED AT KIAMBU THIS 6THDAY OF OCTOBER, 2022. MARY KASANGOJUDGEIn the presence ofCoram:Court Assistant : MouriceFor the Testator : - Ms. Wambura HB Mr. NjugunaFor the Protestor :- Jacinta WanjiraJUDGMENT delivered virtuallyMARY KASANGOJUDGE