[2022] KEHC 16220 (KLR)

In Re Estate of Rev. Ibrahim Muriuki Lithara Mwiragua alias Ibrahim Muriuki Mwiragua alias Ibrahim Muriuki Lithara alias Ibrahim Lithara (Deceased) (Succession Cause 520 of 2013) [2022] KEHC 16220 (KLR) (6 October 2022) (Judgment)

Neutral citation: [2022] KEHC 16220 (KLR)

Republic of Kenya

In the High Court at Meru

Succession Cause 520 of 2013

EM Muriithi, J

October 6, 2022

IN THE MATTER OF THE ESTATE OF REV. IBRAHIM MURIUKI LITHARA MWIRAGUA alias IBRAHIM MURIUKI MWIRAGUA alias IBRAHIM MURIUKI LITHARA alias IBRAHIM LITHARA (DECEASED)

Judgment

1. By summons under certificate of urgency dated November 22, 2019 brought under section 76 of the Law of Succession Act, rule 44(1) of the Probate and Administration Rules and section 128 of the Registered Land Act, the applicant seeks, principally, revocation or annulment of the grant of letters of administration intestate confirmed to Mercy Karimi Lithara on June 16, 2014.

2. The application is premised on the grounds that the petitioner/respondent not only filed the petition secretly without the applicant’s knowledge, but she also failed to list all the beneficiaries of the deceased, thus making the proceedings herein defective in substance. In her supporting affidavit sworn on even date, the applicant avers that she was the widow to the deceased, and thus the grant ought to have been made jointly to herself and the petitioner. She accuses the petitioner of non-disclosure and concealment of material facts that she was a beneficiary of the deceased by virtue of being his wife, thus denying her of her rightful share of the estate.

3. The application was opposed by the replying affidavit of Mercy Karimi Lithara, the respondent herein sworn on January 9, 2020. She terms the application as a waste of the court’s valuable time, an abuse of the court process, spurious and unmeritorious, which ought to be struck out. She avers that the estate was distributed according to the will of the deceased amongst his true heirs as outlined in the exhibited chief’s letter. She avers that the deceased was categorical at paragraph 8 of his last will and testament that the applicant, was ineligible to any share of his property as she had deserted him and taken away some of his properties. She avers that the grant was confirmed in line with the last will and testament of the deceased, and the estate has been fully distributed. In her view, the application is purely misleading since it has been filed 5 years after the said confirmation.

4. The applicant, Francis Kubai M’Elaku, the deceased’s friend and Jeremiah Gakotha, the treasurer of MCK Kalithia Church, recorded witness statements on January 20, 2020 attesting to the fact that the applicant and the deceased solemnized their union in February 1997. In response to the allegation that she deserted her matrimonial home, the applicant contends that she was chased away by the respondent. In her supplementary affidavit sworn on January 21, 2020, the applicant contends that she is still the legal wife to the deceased, as shown in the annexed marriage certificate.

5. Jonathan Mwingirwa Mbirithi and Sarah K. Mwambia, the deceased close friend and sister-in-law respectively, swore 2 affidavits on February 4, 2020 confirming that although the deceased wedded the applicant in 1997, she later on deserted her home never to be seen again. Those assertions were buttressed by the respondent in her further replying affidavit sworn on November 4, 2020.

6. David Muchena stated in his statement dated March 1, 2020 that he was in charge of radio programmes and advertisements in the radio station between 2009 and 2016. He was on duty when a draft death announcement was brought in by the respondent and a son to the deceased namely Martin. When he enquired about the whereabouts of the deceased second wife, the respondent directed him to write the obituary as she desired, and he had no option but to comply.

7. The application was directed to be canvassed by way of written submissions which were respectively filed. The applicant submits that the grant was obtained fraudulently by concealment of material facts that she was a lawful beneficiary of the estate by virtue of being the widow to the deceased, and relies on Jamleck Maina Njoroge v Mary Wanjiru Mwangi [2015] eKLR, Re Estate of Moses Wachira Kimotho (Deceased) [2009] eKLR and Re Estate of Magangi Obuki (Deceased) [2020] eKLR. She urges that the last will and testament is a forgery and not the last wishes of the deceased.

8. The respondent submits that the applicant deserted the deceased and was thus not entitled to inherit from his estate and relies onJAO v EAO [2016] eKLR where the court held that, a wife who had deserted her husband was not capable of administering the deceased estate. She urges that the applicant’s abandonment of the deceased for a period of 7 years ended their marriage by presumption of divorce, and relies on Re Estate of Jecinter Njoki Okoth (Deceased) [2020] eKLR. She submits that Amb Zakayo Kamencu, a witness to the making of the deceased will, testified that the deceased shared his property to his children and grandchildren but deliberately left out the applicant, as she had abandoned him. She submits that the signature of the advocate who drew the will was confirmed by PW6, Caroline Rimita, who produced the will as exhibit.

Analysis and Determination 9. Having considered the affidavits, witness statements and testimony in court together with the submissions on record, the issue for determination is whether the grant should be revoked.

10. Section 76 of the Law of Succession Act sets out the requirements for revocation or annulment of grant as follows:-“A 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—(i)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(e)that the grant has become useless and inoperative through subsequent circumstances."

11. The applicant accuses the respondent of concealing from the court that she was the widow to the deceased, and thus entitled to a share of his estate. In her defence, the respondent contends that the deceased left behind a Will detailing how his properties should be shared out. In that will, the deceased expressly forbid the applicant from interfering with the distribution of his estate, when he stated at paragraph 8 of the said will that,“I direct my properties to be distributed as I have directed in this will and that my former wife Martha Gacheri Mungania who deserted me and took away my properties should not interfere with any of my properties or this will.”

12. It is against that backdrop that the respondent, as the named executor of the will of the deceased herein, petitioned for letters of administration with written will annexed on September 27, 2013. Before the grant was confirmed, the applicant filed Meru HC Citation Cause No 81/2014 citing the respondent and one Martin Bariu Lithara. In her replying affidavit dated May 28, 2014, the respondent blamed the applicant of wanting to reap where she did not sow, since she did not take care of and/or contribute to the acquisition of any of the properties of the deceased. It appears the applicant thereafter proceeded to petition for grant of letters of administration intestate through Meru HC Succession Cause No 174/2015, but the respondent protested to the confirmation of that grant vide her affidavit of protest sworn on April 27, 2017, on the ground that the grant in this cause had since been confirmed way back on June 16, 2014 in terms of the annexed will dated September 3, 2010, and a certificate of confirmation of grant subsequently issued.

13. The applicant has produced a marriage certificate ascertaining that she was legally married to the deceased. The said marriage was witnessed by Francis Kubai and Joyce Kubai, and Francis Kubai, acknowledged that fact in his witness statement. Whereas the applicant contends that the signature on the will allegedly belonging to the deceased is a forgery, as it differs from the signature appended on the marriage certificate, the respondent maintains that the will is valid.

14. Section 5 of the Act provides for persons capable of making wills and freedom of testation as follows:"(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.(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.”

15. In addition, section 11 of the Law of Succession Act provides that:“No written will shall be valid unless—(a)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;(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 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.”

16. An independent witness is defined under section 3 of the Law of Succession Act to mean a witness who is not a beneficiary under a will or the spouse of any such beneficiary.

17. The impugned will was drawn by M/S Maitai Rimita & Co Advocates on September 3, 2010 in the presence of Amb Zakayo Joseph Kamencu and Laban Kaberia Mugwika. Those persons were independent witnesses within the meaning of section 3 of the Law of Succession Act, as they did not get any bequests from the deceased. When the validity of the impugned will was put to test, the said persons were called to testify as RW5 and RW2, respectively, and their evidence put the issue of the purported forgery of the signature of the deceased in the will, to rest. No forensic evidence on validity of the signature was adduced by the applicant who, under section 109 of the Evidence Act had the burden of proof the particular fact of forgery that she alleged.

18. I respectfully, agree with the court in Re Estate of Julius Mimano (Deceased) [2019] eKLR (W Musyoka, J) where it was observed as follows:“It is the applicant's contention that the signatures on the Will were forged and did not belong to the deceased. He did not call a document examiner to give expert opinion on the said signatures. The applicant did not express himself to be a qualified document examiner, or handwriting expert, whose word on the matter could be given weight (See section 109 of the Evidence Act). That places the burden of proof on him.”

19. As regards the standard of proof it is than in ordinary civil cases as observed by W Musyoka J in Re Estate of Samuel Ngugi Mbugua (Deceased) [2017] eKLR,:“The allegation that the said signature was not that of the deceased amounts to a claim that the signature was forged or that fraud was exercised in the procurement of the alleged will. That is to say that someone other than the deceased had affixed that mark on the will with the intent of passing the same as the signature of the deceased. Forgery is a criminal offence. The applicant is in fact imputing criminal conduct on either the person propounding the will or those who were involved in the operation that is purported to have been its execution. The burden of proving forgery lies with the person alleging it. In Elizabeth Kamene Ndolo v George Matata Ndolo Nairobi Court of Appeal civil appeal number 128 of 1995 it was stated that the charge of forgery or fraud is a serious one, and the standard of proof required of the alleger is higher than that required in ordinary civil cases.”

20. Against the statement of the deceased in his will as to dis-inheriting his wife and the testimony of the witnesses RW2 and RW5 on the due execution of the will, the applicant was obliged to produced cogent evidence before the court could find as proved that the will is a forgery.

21. Apart from the layman’s observation that the deceased’s signature on the wedding certificate, which in her evidence took place in 1997, and the signature in the will of 2010 - some 13 years later which could reasonably explain variations - the applicant did not give any evidence as to the alleged forgery of the signature. This court holds that the applicant wholly failed to discharge the burden of proof of the alleged forgery of the signature of the deceased in the impugned will for it to be invalidated.

Testamentary Freedom 22. On the evidence, it this court’s finding that the deceased clearly understood the nature of the business he was engaged in when making his will and providing for his dependants, and the applicant has failed to prove the contrary. There is no doubt that the applicant was a dependant of the deceased within the meaning of section 29 of the Law of Succession Act by virtue of being his wife, estranged or not. That position was reiterated by all the witnesses and is well captured in the impugned will. When the applicant learnt that she had not been provided for in the impugned will, she ought to have appropriately moved the court under section 26 of the Law of Succession Act for reasonable provision, but she instead filed the instant application for revocation of the grant, 5 years later.

23. From the evidence on record, it is clear to this court that the relationship between the applicant and the deceased was a strained one. The fact that the deceased did not provide for the applicant, despite the fact that she was his wife, does not invalidate the will. Moreover, evidence was led that the applicant had abandoned the deceased during his lifetime, and taken away some of his properties. The court finds that the impugned will fully complied with the provisions of section 11 of the Law of Succession Act, and is, therefore, valid.

Conclusion 24. The applicant could have filed, during her husband’s life, an application for determination of her property rights under section 17 of then applicable Married Women Property Act 1882 (the predecessor of the Matrimonial Property Act, 2013) on the ground that she had contributed to the acquisition of any matrimonial property. But that is not her case before the court. Upon the deceased’s death on December 15, 2011, she also failed to apply for provision under section 26 of the Law of Succession Act as a dependant who is not adequately provided for under the will, or to file for a declaration that properties disposed by the will were not part of the “free property” of the deceased, in terms of sections 3 and 5 of the Law of Succession Act, which the deceased was capable of disposing by will. Having failed to do so, and the court having established the will to be valid, it only remains for the court to uphold the deceased’s freedom of testation under section 5 of the Law of Succession Act.

Orders 25. Accordingly, for the reasons set out above, the application dated November 22, 2019 has failed to satisfy the requirements of section 76 of the Law of Succession Act, and it is dismissed.

26. There shall be no order as to costs.

DATED AND DELIVERED THIS 6TH DAY OF OCTOBER, 2022. EDWARD M MURIITHIJUDGEAPPEARANCES:M/S Otieno C & Co Advocates for the objector/applicant.M/S Maitai Rimita & Co Advocates for the petitioner/respondent.