[2022] KEHC 3286 (KLR)

In re Estate of Phylis Wasuna Kamau (Deceased) (Succession Cause 25 of 2019) [2022] KEHC 3286 (KLR) (7 July 2022) (Judgment)

Neutral citation: [2022] KEHC 3286 (KLR)

Republic of Kenya

In the High Court at Nyahururu

Succession Cause 25 of 2019

CM Kariuki, J

July 7, 2022

Between

Zipporah Nyambura Njuguna

Applicant

and

Michael Ndungu Njuguna

Respondent

Judgment

1. The matter before Court is an application by Zipporah Nyambura Njuguna, the Applicant herein brought through Summons dated 19/09/2019 seeking to revoke the Grant of Probate issued to Michael Ndungu Njuguna, the Petitioner/ Respondent herein on 10th June 2002 and confirmed on 1st March 2003 in relation to the estate of Phylis Wasuna Kamau, the deceased herein. In addition, the Applicant sought for the cancellation of the title issued in the Respondent’s name over the parcel number Nyandarua/South Kinangop/ 12301 and for it to revert to the deceased’s name. The Applicant herein sought the following orders: -i.Spent.ii.Spent.iii.Spent.iv.Spent.v.That the Grant of Probate issued by this court on 10th June 2002 to Michael Ndungu Njuguna and confirmed on 1st March 2003 be and is hereby revoked and the title issued in the name of Michael Ndungu Njuguna over parcel number Nyandarua/South Kinangop/12301 is hereby canceled and the land to revert back to the name of Phylis Wasuna Kamau to be administered as part of her estate.vi.That the orders to be served upon the land registrar Nyandarua/Samburu counties for compliance.vii.That in the alternative and without prejudice to prayer (6) above, reasonable provision be made for the Applicant and other beneficiaries of the estate of the deceased out of parcel number Nyandarua/South Kinangop/12301 and such provision to include family graveyard.viii.That the cost of the application be borne by the Respondent.

2. The grounds upon which this application is based are listed as follows; -a.That the proceedings to obtain the Grant of Probate were defective in substance as the will tendered before court was a forgery.b.That the Grant of Probate was obtained fraudulently by the making of false statements, forgery of the deceased signature and concealment of material information.c.That the purported will is skirt by extremely suspicious circumstances.d.That the Respondent disinherited other children of the deceased, rendered them destitute, subdivided the only parcel of land constituting the estate and sold resultant parcels leaving parcel No. Nyandarua/South Kinangop/12301 which he is about to dispose off.e.That the remaining parcel of land carries even the family graveyard where all the remains of the Applicant’s family members are interred and which is off extremely sentimental value to the Applicants and the entire family and they risk suffering irreparable harm if the order of inhibition is not granted pending the hearing.f.That there were other dependants of the deceased who were not reasonably provided for and who depended on the deceased.g.That the estate is situate in Nyandarua within the jurisdiction of the High Court in Nyahururu and the deceased was domiciled there at her death.

3. The application was supported by the Supporting Affidavit sworn by Zipporah Nyambura Njuguna, the Applicant herein on 11th August 2019. Briefly, she deponed that she was the deceased’s daughter while the Respondent was her brother. That the deceased was the proprietor of original parcel no. Nyandarua/ South Kinangop/575, the suit land herein which was their only family land.

4. She deponed that to the best of her knowledge her mother died without a Will and that she told them, that the suit land belonged to all of them and she expressed fears that the Respondent would sell it and leave the family destitute and that is why the deceased gave her the title deed for the suit land for safe keeping.

5. The Applicant averred that she left for the United States of America after her mother’s death but left behind her children. She stated that the deceased left herself, Susan Ruguru and the Respondent as her survivors.

6. She deponed that the Respondent forged a will and proceeded to file for probate without involving any family members and then proceeded to subdivide the suit land leaving the current parcel no. Nyandarua/South Kinangop/ 12301 in his name. That she learnt of this state of affairs in 2014 and immediately lodged a caution against the title.

7. Further, the Applicant averred that in 2016 she realized the caution had been removed when the Applicant was about to dispose off the entire parcel of land and she requested the land registrar to place a restriction. She also instructed her lawyers to trace the court file in which the Respondent may have filed for succession proceedings but it was difficult but she later managed to file the present summons for revocation of grunt of probate.

8. She asserted that the deceased could not have written a will over parcel of land whose title she was keeping in safety on her instruction and fail to inform her of such an important action. That in one occasion, the deceased informed her that the Respondent had brought some papers to her requiring her signature but she did not know the effect of the said documents and therefore refused to sign and the Respondent refused to disclose to her the nature of the alleged documents.

9. The Applicant deponed that the document propounded as a will is suspect for the following reasons:-

10. It is purported to be prepared by an advocate by the name G. Kamonde Advocates.

11. That the Respondent’s daughter was employed by G. Kamonde and must have been used in the whole scheme of forging the will.

12. That the deceased had already informed them that the land was family land and even given her the original title deed for safe keeping fearing that the Respondent would scheme to dispose of the land to the disadvantage of the family.

13. That the deceased was not in a sound mental state at the material time to understand the contents of the purported will.

14. In addition, the Applicant filed an affidavit dated 1st March 2021 deponed by Benjamin Waitara Gatuku.

15. The application was opposed by the Respondent vide the Replying Affidavit dated 10/12/2019 sworn by Michael Ndung’u Njuguna, the Respondent herein. The Respondent deponed that the Applicant took the original title deed to the suit land from the deceased’s bedroom without her knowledge and consent and that she was requested severally to return it but she refused.

16. That he was summoned by the deceased in June 2000 and he found that she had called three other neighbors namely Geoffrey Macharia, Joseph Githinji Waichoya and Francis Wainoga Mwangi and she informed them that she wanted to talk about her properties and the same was to be reduced in writing.

17. That J.G Waichoya was appointed as the secretary and he wrote down the deceased’s wishes which were that the suit land and properties belonging to the Respondent’s brother Solomon Kamau Njuguna were to be inherited by the Respondent then they signed the document.

18. That the document which was in Kikuyu language was left under the deceased’s custody and she later engaged Advocate G. Kamonde on 24/6/2010 who wrote the will in English in her presence and her witnesses and they all signed and the original will was left under the advocate’s custody.

19. He reiterated that the will dated 24/6/2000 is not a forgery as claimed by the Respondent and the same was executed before witnesses who are alive and ready to testify in court to attest to its authenticity and it was drawn by G.Kamonde Advocate who is now deceased.

20. The Respondent averred that the Applicant is aware of the will as after the deceased’s demise the advocate called for a meeting for the purposes of reading the will and Advocate Kamonde came to the deceased home and read out the will in his presence and that of his uncles but the Applicant refused to attend.

21. He then filed for succession and although the Applicant had lodged a caution on the suit property, she was summoned severally by the district land registrar for a hearing on its removal but she refused to attend and the cation was removed. That the Applicant did not raise any objections all through and he later on subdivided the parcel of land as the registered owner and no encumbrances were registered against the said title.

22. He denied ever taking papers to the deceased requiring her signature and the issue was never raised during her lifetime and that his deceased daughter never worked for Advocate G. Kamonde.

23. He averred that it is not true that the deceased was of unsound mind and that his two surviving sisters are married and they own separate properties and the last time they visited the suit property was on the deceased’s burial and thus it is false that they stand to suffer loss as alleged.

24. Applicant’s Submissions was not received by time judgement was prepared.

Respondent’s/ Petitioner’s Submissions 25. The Respondent stated that the Applicant had not tendered medial evidence before the court in support of her allegation that the deceased’s mental capacity was affected by depression and hypertension and therefore she couldn’t understand that she was making a will.

26. It was submitted that the alleged beneficiary of the deceased to wit Susan was never made a party to these proceedings, she did not testify in court and neither did she give the Applicant her consent towards the filing of this application.

27. On whether the application is supported by evidence, the Respondent averred that in the Applicant’s affidavit sworn on 19th August 2019, a number of documents which are marked ‘ZNN1’ to ‘ZNN5’ are attached and purported to be annexures that warrant the consideration of the court.

28. The Respondent urged the court to expunge from the record the Applicant’s purported annexures as they were not marked as provided for by Rule 9 of theOaths and Statutory Declaration Rules. Further reliance was placed on Jeremiah Nyangwara Matoke v Independent Electoral & Boundaries Commission & 2 others[2017] eKLR citing the case of Francis A Mbalanya v Cecilia N. Waema [2017] eKLR, Solomon Omwega Omache & another v Zachary O Ayieko & 2 others[2016] eKLR and Abdul Aziz Juma v Nikisuhu Investment & 2 othersELC No 291 of 2013 eKLR

29. It was averred that the cancellation of title to land as per one of the Applicant’s prayers falls squarely within the jurisdiction of the Environment and Land court and does not fall within the scope of jurisdiction granted to this court. Reliance was placed on Article 162 of the Constitution as read with Section 13 of the Environment and Land Court Act, 2011 and the case of {{>/akn/ke/judgment/kesc/2012/2 Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012]eKLR

30. The Respondent contended that the Applicant had failed to satisfy the conditions set out in Section 76 of the Law of Succession Act to warrant this court to exercise its powers and revoke the grant of probate issued to the Respondent.

31. The Respondent submitted that the Applicant did not attach any evidence in support of her allegations that the proceedings giving rise to the grant were defective in substance as the will tendered before the court was a forgery. Reliance was placed on Elizabeth Kamene Ndolo v George Matata Ndolo [1996] eKLR.

32. It was reiterated that the Applicant did not tender any evidence in form of the opinion of handwriting experts or documents experts in support of the allegation that the deceased’s signature was forged. That no samples were placed before the court of any alleged known signatures of the deceased so that this court could compare the signatures and arrive at a just finding.

33. The Respondent asserted that it was section5 (4) of the Law of Succession Act puts the onus of proof on he who challenges the mental capacity of the testatrix. That the Applicant did not attach any medical evidence in support of her claims. Further reliance was placed on sdection 5 (3) of the Law of Succession Act on testamentary capacity, Banks v Goodfellow [1870] LR 5 QB 549 as cited with approval in the case of Vaghella v Vaghella, in re estate of Wilfred Koinange Gathiomi (deceased)[2020] eKLR.

34. It was argued that provision for beneficiaries who have either been left out without any inheritance or who have been inadequately provided for is anchored on Section 26 and 28 of the Law of Succession Act which provisions are fettered by Section 30 of the Act. It was their submission that the Applicant’s application is time barred in so far as it seeks reasonable provisions under the aforementioned section and the doctrine of laches.

35Analysis and Determination

36. The core issue for determination in the instant case is:a.whether the grant of probate issued by the court on 10th June 2002 to Michael Ndungu Njuguna and confirmed on 1st March 2003 should be revoked?b.In alternative would the provisions of section 26, 27 and 28 apply in this matter?c.What is the orders as to costs?

37. The Law of Succession Act provides for revocation of grants under Section 76, which states as follows:“76. Revocation or annulment of grantA grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion—a.that the proceedings to obtain the grant were defective in substance;b.that the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case;c.that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently;d.that the person to whom the grant was made has failed, after due notice and without reasonable cause either—

38. to apply for confirmation of the grant within one year from the date thereof, or such longer period as the court order or allow; or(ii)to proceed diligently with the administration of the estate; or(iii)to produce to the court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraphs (e) and (g) of section 83 or has produced any such inventory or account which is false in any material particular; or(iv)that the grant has become useless and inoperative through subsequent circumstances.”

39. Further, In the Matter of the Estate of L A K (Deceased)[2014] eKLR the court held that:-“Revocation of grants is governed by Section 76 of the Law of Succession Act. The relevant portions of Section 76 are paragraphs (a), (b) and (c) since the issues raised relate to the process of the making of a grant. A grant may be revoked where the proceedings leading up to its making were defective, or were attended by fraud and concealment of important matter, or was obtained by an untrue allegation of a fact essential to the point.”

40. The Applicant invited the court to revoke the Grant of Probate made to the Respondent stating that the proceedings to obtain the grant of probate were defective in substance as the will tendered before court was a forgery and that the Grant of Probate was obtained fraudulently by the making of false statements, forgery of the deceased signature and concealment of material information.

41. In the instant case, the Applicant anchors her argument on the issue of the validity of the deceased’s will.Section 11 of the Law of Succession Act, which provides as follows:a.“Written willsb.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;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 acknowledgement 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.”

42. I have carefully looked at the document that has been placed on record as the deceased’s will (Exhibit “MNN1”). On the face of it, there is compliance with Section 11, and thus presumption of due execution. The will appears to have been properly executed in a manner that showed that the testator and his witnesses intended it to be her Will.

43. The Applicant asserted that, the will was not properly executed and attested as the signature of the deceased i.e. testator was forged.

44. I associate myself with the statements of the court made In re Estate of Francis Andabwa Nabwangu (Deceased) [2021] eKLR that: -The way to deal with allegation of forgeries of signatures on a will is to have them referred to handwriting experts or document examiners for comparison of the alleged forged signatures with the known signatures of the deceased, as was said and done in In Re JNM (Deceased)[2005] eKLR (Koome J). See also Elizabeth Kamene Ndolo v George Matata Ndolo[1996] eKLR (Gicheru, Omolo and Tunoi JJA) and In re Estate of the late Samson Kipketer Chemirmir (Deceased) [2019] eKLR (Ndung’u J). The opinion of document examiners or handwriting experts is critical.

45. Accordingly, the Applicant did not bring forth any evidence from handwriting experts or documents examiners that the signature was indeed forged. Further, no samples of the deceased’s known signatures were placed before the court for comparison. The Applicant failed to offer any concrete evidence to support her allegations of forgery. It is my view that mere allegations are not enough to compel the court to invalidity the Will. The standard of proof for forgery and fraud, being criminal offences, is, higher than what is expected in ordinary civil cases. (See Elizabeth Kamene Ndolo v George Matata Ndolo [1996] eKLR)

46. The Applicant also stated that the deceased was not in a sound mental state at the material time to understand the contents of the purported will. The law places duty on to the Applicant to discharge the burden of proof of this allegation however in my view the Applicant failed to do so. It is a cardinal principle of law that he who alleges must prove, the Applicant placed no iota of evidence to prove that the deceased was in no mental state capacity to make the will at the time. This court cannot act on unproven allegations where no evidence whatsoever is offered towards proving the allegations. The Applicant filed an affidavit deponed by Benjamin Gituku however I am not inclined to accept that the same makes impact for sufficient prove to support the serious allegations advanced by the Applicant.

47. Furthermore, the deceased had testamentary freedom to bequeath his property to his family. That freedom was sanctioned by Section 5(1) of the Law of Succession Act in the following terms: -“5(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

48. It follows that the deceased/testator had freedom of testation and the testator is not obliged to dispose of his assets to any particular person. The fact that a will does not name some family members, or make provision for them, does not render it invalid. (See In re Estate of Timothy Mwaura Ndichu (Deceased)[2020] eKLR).

49. In totality of the records before this court, the Applicant has not convinced me that the will on record was invalid. I, therefore, find the will of the deceased was valid.

50. The provisions of section 26, 27 and 28 of laws of Succession applies subject to limitation set out in section 30 Law of Succession Act. However, Section 30 can give way by virtue of Article 159 (1) d by doing substantial justice by revoking grant to the extent that the parcel No. Nyandarua/South Kinangop/12301 is awarded to the omitted beneficiaries including applicant and the grave yard.

51. The Applicant also sought orders that the title issued in the name of Michael Ndungu Njuguna over parcel number Nyandarua/South Kinangop/12301 is hereby canceled and the land to revert back to the name of Phylis Wasuna Kamau to be administered as part of her estate.

52. In re Estate of Obedi Ndwiga Rubarita (Deceased) [2021] eKLR the court stated that: -It is now trite that the primary duty of the Probate Court is to distribute the estate of the deceased to the rightful beneficiaries and which jurisdiction is over the net estate of the deceased being that which he was free to deal with during his lifetime. With respect to matters touching on title to and, and occupation of land, the proper forum ought to be the Environment and Land Court which is established under the Constitution of Kenya 2010 and the Environment and Land Court Act, No. 19 of 2011. This court (High Court) has no jurisdiction to determine any disputes that centers on ownership, occupation and use of land. Further, the issue as to the ownership once raised in a succession cause, they must be resolved before such property is distributed. (See In re Estate of Stone Kathuli Muinde (Deceased)[2016] eKLR). The Applicant ought to have presented the instant issue before the court with competent jurisdiction which is the Environment and Land Court.

53. Accordingly, according to Article 162(b) of the Constitution of Kenya 2010 this court has no jurisdiction with respect to matters touching on title, use and occupation of land; the same is mandated to the Environment and Land court. However, the property subject of the instant cause was a free property of deceased and not contested in ownership but only that one beneficiary is said to have allocated himself all the estate property to the exclusion of the applicant and other beneficiaries on the basis of the will in issue. This has nothing to do with title, use and occupation but sharing of the property of the estate he is holding. Thus, the provisions of section 26,27 and 28 of Law of succession Act cap 160 L.O.K come to play.

54. The provisions for beneficiaries who have either been left out without any inheritance or who have been inadequately provided for is anchored on Section 26 and 28 of the Law of Succession Act. A testator has power to dispose of her property as she pleases and the court is bound to respect those wishes as long they are not repugnant to the Law and she does not leave out some dependants and beneficiaries.

55. Failure to make provision for a dependant by a deceased person in her 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. Section 28 sets out the parameters that this Court should consider when making such provisions. See in re Estate of Lusila Wairu Waweru (Deceased) [2020] eKLR.

56. Section 26, 27 and 28 of the Law of Succession Act (Chapter 26 of the Laws of Kenya) provides for application for adequate provision for dependants not adequately provided for by Will or on intestacy as follows:

57. Section 26. Where a person dies after the commencement of this Act, and so far as succession to his property is governed by the provisions of this Act, then on the application by or on behalf of a dependant, the court may, if it is of the opinion that the disposition of the deceased’s estate effected by his Will, or by gift in contemplation of death, of the Law relating to intestacy, or the combination of the Will, gift and Law, is not such as to make reasonable provision for that dependant, order that such reasonable provision as the court thinks fit shall be made for the dependant out of the deceased’s net estate.

58. Section 27. In making provision for a dependant the court shall have complete discretion to order a specific share of the estate to be given to the dependants, or to make such other provision for him by way of periodical payment or a lump sum, and to impose such conditions as it thinks fit.Section 28. In considering whether any order should be made under this part, and if so what order, the court shall have regard to:(a).The nature and amount of the deceased’s property;(b).Any past, present or future capital or income from any source of the dependant;(c).The existing and future means and needs of the dependant;(d).Whether the deceased had made any advancement or other gift to the dependant during his lifetime;(e).The conduct of the dependant in relation to the deceased;(f).The situation and circumstances of the deceased’s other dependants and the beneficiaries under any will;(g).The general circumstances of the case, including, so far as can be ascertained, the testator’s reason for making the provision for the dependantSection 29 of the LSA is set out the meaning of the term ‘dependant’ as follows:For the purposes of this part, “dependant” means:-(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).Such of the deceased’s parents, step-parents, grand-parents, grand-children, step-children, children whom the deceased had taken into his family as his own, brothers and sisters and half-brothers and half-sisters, as were being maintained by the deceased immediately prior to his death; and(c)Where the deceased was a woman, her husband if he was being maintained by her immediately prior to the date of her death.

59. The Applicant also sought orders that the title issued in the name of Michael Ndungu Njuguna over parcel number Nyandarua/South Kinangop/12301 be canceled and the land to revert back to the name of Phylis Wasuna Kamau to be administered as part of her estate however the court will declare Michael Ndungu Njuguna trustee in regard to LR No Nyandarua/South Kinangop/12301 for the provisions of the graveyard and the beneficiaries including the applicant left out without any inheritance.

60. Consequently, as regards impeachment of the will, the Applicant has failed to discharge the burden of proof of her case against the Respondent in terms of Section 76 of the Law of Succession Act. I find no merit in the summons for revocation of a Grant to the extent it challenges the validity of the will, but succeeds on the alternative prayer that the revocation is to the extent that suit land will be awarded to the Applicant and other omitted beneficiaries and graveyard.

61. Thus, the court makes the orders;(i)The deceased will stand unimpeached thus the application fails to the extent it challenges the will but revoked to the extent suit land is awarded applicant, and other beneficiaries omitted plus the graveyard.(ii)The court declares Michael Ndungu Njuguna to be holding as a trustee LR No Nyandarua/South Kinangop/12301 for the provisions of the graveyard and the beneficiaries including the applicant left out without any inheritance and thus he will sign all relevant documents to effect transfers for the beneficiaries aforesaid and in default the Executive officer of the court will sign same documents to effect transfers.(iii)The applicant to file an affidavit of proposed sharing of LR No Nyandarua/South Kinangop/12301 between themselves and also the graveyard within 30 days from dates herein.(iv)Parties to bear their costs.(v)There be liberty to apply

DATED, SIGNED AND DELIVERED AT NYAHURURU THIS 7TH DAY OF JULY 2022. ..............CHARLES KARIUKIJUDGE