[2023] KEHC 25281 (KLR)

In re Estate of Matayo Wasike Muganda (Deceased) (Succession Appeal E02 of 2023) [2023] KEHC 25281 (KLR) (14 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25281 (KLR)

Republic of Kenya

In the High Court at Kakamega

Succession Appeal E02 of 2023

PJO Otieno, J

November 14, 2023

IN THE MATTER OF THE ESTATE OF THE LATE MATAYO WASIKE MUGANDA

Between

Lilian Naliaka Wasike

1st Appellant

Rose Wasike Mukanda

2nd Appellant

and

Florah Wasike

1st Respondent

Festus Wasike

2nd Respondent

(Being an appeal from the ruling of Hon. Z. J. Nyakundi (SPM) in Butali Succession Cause No.5 of 2022 dated 13th October, 2022)

Judgment

1. Following the death of Matayo Wasike Luganda alias Matayo W. Muganda (“deceased”) on the 23rd day of July, 2020, the 1st and 2nd Appellant in their capacity as daughter and widow of the deceased petitioned the trial court for Grant of Letters of Administration Intestate. In the said Petition, the Petitioners/Appellants indicated that the deceased was survived by;a)Lilian Naliaka Wasike (Daughter);b)Judith Nanzala Wasike (Daughter);c)Leah Nekesa Wasike (Daughter);d)Norah Nafula Wasike (Daughter);e)Rose Wasike Mukanda (Widow);f)Wilson Samosi Muganda (Son);g)Selah Shikuku Muganda (Sister) and;h)Margaret Andati (Widow).

2. Subsequent to the confirmation of the grant evidenced by Certificate of Confirmation dated 24th January, 2022, the Respondents herein filed an application for the revocation of the said grant on the grounds that the Petitioners had left out the first wife and his children from the succession proceedings and that the deceased had left behind a written valid Will.

3. In a ruling of the trial court delivered on 13th October, 2022, the Court asserted the written will dated 11th January, 2020, further found that the Appellants/Petitioners had no capacity to commence the succession proceedings and revoked the Will without any other order on how to administer the estate.

4. Aggrieved by this decision, the Appellants lodged this appeal by a Memorandum of Appeal dated 8th February, 2023 and faulted the trial court on grounds that: -a.That the learned trial magistrate erred in fact and law in holding that the deceased matayo wasike muganda left a will at the time of his demise when there was no evidence in that regard.b.That the learned trial magistrate erred in fact and law in holding that the appellants had no capacity to file the succession cause in respect of the estate of their deceased father.c.That the learned trial magistrate erred in fact and law in revoking the certificate of confirmation of grant and failed to give a solution to the parties’ dispute.d.That the learned trial magistrate erred in fact and law in failing to determine the dispute of distribution of the estate of the deceased thereby leaving the parties in a worse situation than when they came to court.

5. The Appellants therefore fault the court for creating a lacuna in the office of the administrator, thus failure to resolve parties and prayed that the decision of the trial court revoking the Grant be set aside.

6. The appeal has been canvassed by way of written submission as directed by the court. It is the submissions by the Appellant that the 1st and 2nd Appellant being daughter and widow of the deceased respectively had the capacity to initiate succession proceedings in respect to the deceased’s estate. They argue that the Will adduced is unclear under which circumstances it was prepared and that none of the witnesses to the Will was called to testify. They further argue that the Will does not provide for the 2nd Appellant who is the 2nd widow and Margaret Andati who is the 3rd widow. They also contest that the Will is not clear when it stipulates that Land No. 1754 will be managed by the 2nd Administrator/Appellant until further when he will divide it as directed.

7. The Respondents identify four issues for determination. The first issue is whether the trial court erred in finding that the deceased left a Will at the time of his demise to which they submit that the Appellants failed to challenge through evidence, the validity of the Will at the trial court and that they are estopped to submit on the same at this stage. They place reliance on the Court of Appeal decision in Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & another (2014) eKLR in that regard where it was held;“Submissions cannot take the place of evidence. The 1st Respondent had failed to prove his claim by evidence. What appeared in submissions could not come to his aid. Such a course only militates against the law and we are unable to countenance it. Submissions are generally parties’ “marketing language”, each side endeavouring to convince the court that its case is the better one. Submissions, we reiterate, do not constitute evidence at all. Indeed, there are many cases decided without hearing submissions but based only on evidence presented.”

8. The Respondents then contend that the Appellants’ disagreement with the mode of distribution under the Will is not a ground for invalidating the Will.

9. The second issue is whether the trial court erred in holding that the Appellants had no capacity to file the succession cause for the estate of the deceased to which they submit that the trial court was correct for the reason that the deceased left a Will detailing the mode of distribution of his property, which the Appellants were well aware of, but chose to conceal from the Court.

10. The third issue is whether the trial court erred in revoking the Certificate of Confirmation of grant and failing to give parties a solution to the parties dispute for which the Respondents submit that the Will has not been challenged and the appointed Executors are ready and willing to execute the Will in which the Appellants had attempted to usurp the powers of the duly appointed Executors.

11. The fourth issue is whether the trial court failed to determine the distribution of the estate to which they submit that a testator enjoys testamentary freedom on how to distribute his estate under section 7 of the Law of Succession Act and that the trial court put its mind rightfully in allowing the intentions of the testator to thrive on the mode of distribution.

Issues, Analysis and Determination 12. With the benefit of having perused the pleadings in the file, the proceedings taken at trial and the Judgment in light of the Memorandum of Appeal and the Submissions offered in this appeal, the Court discerns the issue that fall for determination to be; whether the learned trial Magistrate erred in holding that the deceased left behind a valid Will which was ignored by the Appellants and thus coming to the decision to revoke the Grant. That single issue suffices to answer all the grounds of appeal and the issues isolated by both parties in their submissions.

13. Section 5 of the Law of Succession Act gives every adult person the testamentary freedom to dispose his or her property, by way of a Will, as they so wish. Whenever a Will is contested, Section 11 of the Act further stipulates the elements to establish a valid Will. It provides that no written Will shall be valid unless the Testator has signed or affixed his mark to the Will, or it has been signed by some other person in the presence and by the direction of the Testator; 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; and 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 of 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.

14. It is thus indubitably clear that the right of a Testator to dispose his estate by a Will is unfettered subject to the rule of validity which are intended to retain the will and wishes of the Testator free from manipulation and improper influence. Consideration as to fair or unfair treatment of one or some of the beneficiaries may be a reason to tinker with the will, by the Court making reasonable provisions to such beneficiary, but never a basis to invalidate the will. The consequence is therefore that the Will must be respected by all including the Court, hence whenever it is proved to the satisfaction that there is a Will in place, at whatever the state of the succession cause, the grant of letter of administration intestate, ought to be revoked to give way for the wishes and will of the deceased. The wishes of the deceased are discerned during the proceedings to prove the Will.

15. The circumstances that may undermine the validity of a Will were addressed In re Estate of Julius Mimano (Deceased) [2019] eKLR where the Court held as follows;“Section 7 covers situations where the testator at the time of making the will is of the requisite testamentary capacity. That would be to say that the testator was of age and of sound mind at the material time, but the circumstances of the making of the will detract from or undermine its validity. Fraud would arise in cases where the making of the will is procured by deceit or similar underhand methods. Coercion would refer to circumstances where a person is literally forced to make a will in a certain way, either under duress or threats to life or limb. The will, though made by the deceased himself, in terms of the same being executed by him, would not reflect his will or wishes or intentions in the circumstances, but those of the person driving him to make it in that particular way. Importunity refers to what is often described as undue influence. In such cases there would be no coercion or force or duress as such, but pressure would be brought on the testator of such nature that he cannot resist. He would bend to the pressure, not so much because he is persuaded or convinced that he should make his will in such manner, but because he would be tempted to rid himself of the pressure by capitulating to it. Mistake would refer to cases where the testator signed or wrote the document, such as that meant for someone else believing it to be meant for him.”

16. The Appellants in this instance have challenged the validity of the Will because it makes no provision for the 2nd widow, Rose Wasike, and the 3rd widow, Margaret Andati and that the Will was ambiguous.

17. Kenyan superior Courts have consistently held that the failure to provide for a dependant does not lead to the invalidation of a Will because the Court retain the right and ability to give reasonable provisions for such a dependant. In James Maina Anyanga v Lorna Yimbiha Ottaro & 4 others [2014] eKLR the Court held;“Failure to make provision for a dependant by a deceased person in his will does not invalidate the will as the court is empowered under Section 26 of the Law of Succession Act to make reasonable provision for the dependant.”

18. In Kamene Ndolo v George Matata Ndolo (1996) eKLR the Court of Appeal held;“This court must, however, recognize and accept the position that under the provisions of section 5 of the Act every adult Kenyan has an unfettered testamentary freedom to dispose of his or her property by will in any manner he or she sees fit. But like all freedoms to which all of us are entitled the freedom to dispose of property given by section 5 must be exercised with responsibility and a testator exercising that freedom must bear in mind that in the enjoyment of that 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 expressly recognized by section 26 of the Act ...”

19. In this matter, even though the court proceeds by way of a retrial, what entitles it to make its own determination on the evidence on record, it finds the record deficient and elects to leave the question of the validity of the Will to the trial court. The Court takes that view being appreciative that while the Appellants disclosed that the deceased had only one capital asset being S. Kabras/Shamberere/1754 as the net estate, the objection proceedings have revealed the existence of another property being Chekalini/Lugari/398 which the 1st Respondent insists was bought by herself. That position presents the court with the duty to establish what constitutes the net estate. No evidence appears to have been tendered in that regard.

20. It is however, the preliminary view of the court that the deceased appreciated his polygamous standing and opted to give each of his two capital assets to two of the two families exclusive of the other. There is also the question whether the deceased left behind two or three wives, looking at the evidence of the two Appellants at trial and the submissions of the Respondent in this appeal. In establishing the validity of the Will, those may be important considerations for the trial court.

21. For the reasons set out above, the Court upholds the trial court’s decision revoking the grant. However, to the extent that the court failed to appreciate its duty to have the estate administered towards its conclusion, the court directs that the two administrators shall continue in office as administrators pendente lite pending the proof of the will.

22. Each party shall bear own costs. Let the file be remitted back to the trial Court forthwith to enable the matter be progressed.

DATED, SIGNED AND DELIVERED AT KAKAMEGA THIS 14TH DAY OF NOVEMBER, 2023PATRICK J. O. OTIENOJUDGEIn the presence of:Mr. Mukavale for the AppellantMs. Orengo for the RespondentCourt Assistant: Polycap Mukabwa