[2017] KEHC 1011 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

SUCCESSION CAUSE NO.26 OF 2012

IN THE MATTER OF THE ESTATE OF SALOME WANGARI NGUNGI (DECEASED)

RULING

1. The application for consideration is the Notice of motion dated 14th September 2016. The same in brought under Section 26 of the Law of Succession Act Cap 160 of the Laws of Kenya. The applicant seeks orders that;

i. The purported will of the late Salome Wangari Ngugi be declared invalid, null and void.

2. The application is supported by the affidavit of James Waithaka Ngugi dated the 14th of September 2016. He avers that he and his brother Philip Gatiba Buruno had already applied for grant of letters of administration on 9th July 2012 and it is only when the same came for confirmation that Peter Munga objected to the said application through his advocate and informed the Kiambu law court that he had filed for probate on a will allegedly made by their deceased mother. That upon perusal of the same he discovered that they were forgeries and this led him to file the current application to nullify the alleged will. That upon close scrutiny it emerged that the same related to the death of their late father Joseph Ngugi Githinwa who had died on 19th October 1996 at Kikuyu P.C.E.A. hospital and not their late mother who died on 6th January 2011 at Kihara Sub-District Hospital. That Chief Peter N. Kibande had written a letter of Authority to his brother and hence the letter purported to be produced by the petitioner is a forgery. He avers that the will allegedly made by the deceased is in English and does not have a certificate of translation in kikuyu as the deceased who was aged 93 at the making of the said will was very sick, senile and forgetful and was constantly under the care of close family members who nursed her and attended to her basis needs. He avers that the respondent Peter Munga had taken advantage of the deceased advanced age and senility to make the alleged will adding that even if the deceased did make the said will the same is greatly unfair as it ignored the value of assets being shared adding that the alleged will only talks of money in an account and the bank account details nor amount is disclosed. He avers that the respondent’s application filed before this court is only meant to delay confirmation of the grant of letters of administration already issued to James Waithaka and Philip Gatiba on 9/01/2012.

3. James Waithaka Ngugi the 2nd objector in his further affidavit dated 6th April 2017. He avers that at the time of the alleged will they were not called upon to give their approval for the mode of distribution of the deceased’s estate. He avers that the witnesses referred to by the petitioner are unknown to them but are close friends to the petitioners hence they could not decline to append their signatures as witnesses. He further, avers that the deceased died at the age of 93 due to cardio pulmonary arrest as a result of hypertension and congestive cardiac failure as indicated in her death certificate dated 31st January 2011. that according to the purported will of the deceased the petitioner and two of their siblings Peris Nyambura and Esther Wanjiku Kariuki have purported to allocate themselves the most prime and developed plot leaving them with bare and undeveloped parcel of land. He urges the court to invalidate the said will as it was done without their knowledge and the deceased lacked capacity to make the said will dated 29th July 2010 due to illness which had irreparably compromised and destroyed her state of mind hence lacking capacity to make a will and adding that the deceased was unduly influenced by the petitioner herein to distribute her assets in his favor to the detriment of the other beneficiaries.

4. The application was opposed. The petitioner has filed replying affidavit dated 4th October 2016. He avers that the deceased’s will is valid having been drawn by a competent advocate of the firm of Njoroge and Musyoka Company Advocates and also having fulfilled the requirements of a written will as provided for under the law. He added that the deceased’s thump print was witnessed by 2 witnesses. That after the demise of the deceased the firm of Njoroge and Musyoka wrote to the beneficiaries of the will through chief Kihara to attend a meeting at the chief’s camp on 26th January 2011for the reading of the will. The will was read out to them in the presence of the chief and he as the executor of the said will asked the firm of Enonda, Makoloo Makori and Co. Advocates to apply for probate of the will. However, that there was a mix up during the filling of the same. On 22nd April 2016 the said firm wrote to the registry to rectify the said error. that meanwhile he was called for confirmation of a grant in succession cause 267 of 2011 which had been filed by the objectors in the lower court. On raising his objection, the court directed them to this court. He added that the property comprising the deceased’s estate do not emanate from their parents but belonged to their late sister Lilian who died 2003 and had willed the same to their late mother (the deceased). He avers that the objectors have delayed with the conclusion of this matter by failing to prosecute their objections and are therefore guilty of laches he urged the court to dismiss their objection with costs.

5. James Waithaka Ngugi relied on his affidavits. He testified that the deceased’s illness had touched her brain and she had become senile and finally led to her death. He added that the will is in English and there is no certificate of translation attached. He denied knowing any of the two witnesses and only met them when the will was being read. He states that having read the will the property was not distributed equally as Munga has been allocated a prime area that has been developed while he and his other siblings were given an undeveloped piece of land. He stated that they had sought a chief’s letter in order to pursue with the administration of the deceased’s estate but none had been issued. He urged the court to allow his application and invalidate the deceased’s will.

6. On cross-examination he stated that the came to know of the will when the Njoroge advocate who drew the said will asked all the family members to attend a meeting at the chief’s office. That at the said meeting they were given a copy of the will to scrutinize and the same had been witnessed by George Karari and Munga. That no one came to discuss the mode of distribution after the burial of the deceased. He stated that Peter, Peris and Esther were given 1775 which measures 0. 076 ha while he, Philip and Mary were given 1772 which measures 0. 212 ha. He argued that Peter, Peris and Esther were given a developed parcel of land while he, Philip and Mary got the undeveloped parcel of land which he argues is not fair. He stated that he was living with the deceased mother before her demise and he had to remind her to take her food and medicine as she had become senile and was not thinking properly hence lacked capacity to make a will. He stated that though he was not present when the will was written a letter ought to have been attached to confirm that the contents of the will had been explained to her. He stated further that plot 1775 and 1772 were owned by his late sister called Lilian who upon her demise left the two plots to the deceased who was her beneficiary as she was not married.

7. Peter Munga Ngugi relied on his affidavit dated 4/10/16. He testified that the deceased died testate leaving behind a will which they learnt about when the lawyer read it before all the children and the chief. The said will is signed via a thumb print. He stated that the two witnesses George Munga and Stella Munga are from his village. He denied allegations that he is the one who took the deceased to draw the said will. He stated that Waithaka was not staying with the deceased adding that she kept any monies collected from the rent. He denied allegations that the deceased was senile adding that she was okay and had gone to hospital. Adding that she had her own house but he used to check up on her daily and provided everything that she needed. He testified that the property 1775 and 1772 belonged to her late sister Lilian who upon her demised had willed them to the deceased. He stated that he had gotten a letter from the chief to pursue administration of the deceased’s estate. He stated that prior to the reading of the will by the advocate he did not know of its existence or its contents. She urged the court to allow the will take effect. He denied that he took their mother to the lawyer so that she gives him prime property.

8. On cross examination he stated that the deceased was illiterate and did not know how to read or write. By stated that the deceased must have trusted the two people that wrote the will. That at the time of her demise she was almost 100 years old. That her health was good and she fell ill for a short time before her demise.

9. George Munga Karanja in his testimony relied on his affidavit dated 1/4/2016 he stated that the deceased’s husband’s father was a brother to his mother. That he knew all of the deceased’s children and had been a good friend to the deceased for many years. That the deceased had summoned him and his brother, George to her home where she told them that she wanted to make a will and wished that they would be her witnesses. That they accompanied her to advocate Njoroge’s office where the advocate gave them some papers and explained the contents. That the advocate read the will and the deceased signed by appending her thumb print.

10. On cross-examination he stated that he and the deceased were cousins and that she best understood kikuyu He stated that though the advocate did not give a certificate of translation.

11. George Karuri Wainaina testified that his father and Ngugi were brothers and hence he is Salome’s stepbrother. Initially he stated that he could not recall if he had taken part in the making of the will but later stated that he went with Munga to Njoroge’s advocate to write a will. Mrs. Ngetho sought to have the witness stood down stating that he was unwell. He later on stated that he knew Salome as she was his cousin. He acknowledged signing the affidavit dated 1/4/16. He stated that he together with Munga and Karanja accompanied the deceased when she went to see the advocate to draft the will.

12. Parties filed written submissions. The objector in their submissions gave a summary of facts and events culminating to the current application. In their submissions they list 4 issues for determination

i. Validity of the will dated 29th July 2010

ii. Whether the deceased understood the contents of the alleged will she was to thumb print to

iii. Whether the will dated 29th July 2010 was properly executed

iv. Whether the deceased was unduly influenced by the petitioner herein to distribute her assets in his favor to the detriment of the objectors

13. It was submitted that for a will to be valid mental capacity must be present. In support of this they relied in the case of Banks -vs- Godfellow (1870) L.R. Q.B. 549where Cockburn C.J set the test following terms, “he must have a sound and disposing mind and memory, in other words, he ought to be capable of making his will with an understanding of the nature of the business in which he is engaged, a recollection of the property he means to dispose of and of the persons who are the object of his bounty and the manner it is to be distributed.”

14. That section 5 of the Act there is a presumption that a person making 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 physical illness, drunkenness or from any other cause as to not know what he is doing. It is submitted that the said will does not appoint an executor and the same give details of the deceased bank account.

i. On whether the deceased understood the contents of the alleged will she was to thumb print to.It is submitted that the objectors as well as his witness had stated that the deceased understood kikuyu language and there is no certificate of translation as the will was drafted in English. That rule 54(3) of the Probate and Administration Rules provides that the testator is blind or illiterate or will is signed by another person by the direction of the testator or where it appears to be written in a language in which the testator is not familiar evidence is required before the will is admitted to probate. That Rule 54 makes it mandatory for the court to satisfy itself that the testator had knowledge, by requiring an affidavit showing that the contents of the will had been read over and explained to appear to be understood by the testator immediately before the execution of the will. He submits that it s evident that there was no certificate of translation was tendered before this court to show that the contents of the will had been explained to the deceased.

Whether the will dated 29th July 2010 was properly executed?It was submitted that Section 11 provides for the formal requisites of a valid will and states 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.”

15. It was submitted further that from the foregoing it is clear that the deceased never understood or knew what she was doing and did not even affix her thumb print on the alleged will. That the defence witness in his testimony could not even understand the relationship to the deceased on examination in chief the defence witness disclosed the facts that he went with the petitioner to write the will. Further, he stated that he was not present and did not see the Will being written indicating that they found the document had been written and handed to Munga for signing which is contrary to the legal requirement that each of the witnesses must have seen the testator sign and 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 person 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. Further that the direction did not come from the testator.

Whether the deceased was unduly influenced by the petitioner herein to distribute her assets in his favor to the detriment of the objectors.

16. It was submitted that the validity of a will is predicated on the fact that testator’s knowledge and approval of its content and the testators is said to not know or approve the content because a mistake, fraud and undue influence, that the presence of a mistake fraud and undue influence may lead to the will being null and void. That Section 7 of the Law of Succession Act provides that a testator must exercise his free will in the distribution of his estate and absence of such free will invalidates a Will. That undue influence connotes an element of coercion or force that the deceased did not exercise his free will in writing his will and was pressured by other forces. That such external pressure must be forceful and intended to coerce him into acting out of fear or involuntarily. The onus is on the person who alleges the existence of undue influence to prove the same. It was submitted that the deceased lacked free will in writing the alleged will as infact it was the petitioner that gave the witnesses to sign and not the deceased which went contrary to Section 11 of the Law of Succession Act. It was further submitted that there was undue influence on the deceased as she was very elderly and ailing and it was due to this that the petitioner together with Peris Nyambura and Esther Wanjiku Kariuki purported to allocate themselves prime property Plot no. Kiambaa/Kihara/1775 comprising of 0. 076 Hectares and Peter Munga Ngugi exclusively giving himself the external shops. Whilst the other plot Kiambaa/Kihara/1772 comprising 0. 212 Hectares given to the objectors. He urged the court to invalidate the said will as the drafter of the same was since deceased and could not be called to appear as a witness in this case. He relied on the case ofIn the matter of the estate of Lucy Wangui Muraguri (deceased) succession cause 331 of 2000. “From the material that has been placed before me and from my evaluation of the record, I have come to the conclusion that the will the subject of these proceedings was made under suspicious circumstances and the respondent has failed to satisfy me that the testator knew and approved the contents of the said will dated 11th September 1996 before the same was executed on her behalf. I accordingly find that the said will was null and void. As a consequence, the proceedings for obtaining the grant of probate on record herein were defective, based as they were on the said void will.”

17. Further in the case of Julius Kinyua Chabari & Another Mukwamugo Njagi and 4 others.“This raises the question as to what extent a person can control his property into his grave. If during lifetime, a person has not expressed any discriminatory tendencies towards any member of his family and has treated them equally, lovingly and provided for them fully, why would he then expect them to be treated differently when already he is gone by expressing such tendencies in his will" I think on this ground and on the ground that the deceased was not in his proper frame of mind, and did not know or approve the contents of the will when he executed the same, and the will cannot stand.”

18. In conclusion, it was submitted that it is an elementary principle that he who alleges must prove a principle firmly emended in the evidence Act Section 107 provides, “(1) whoever desires any court to give judgment as to legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.

(2) when a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.”

It was submitted that the objectors have proved their case through oral and written submissions and the defence witness has shown discrepancies in the alleged will and urges the court to declare the allege will invalid.

19. The petitioner in their written submissions gave a background of the matters culminating to the current application. It was submitted that the objectors had known that there was a will and had received a letter from Njoroge Musyoka to converge at the Chief’s office on 26th January 2016 when the will was read but they were not satisfied with the distribution of the deceased’s assets and approached the court under section 26 of the law of succession Act. It was submitted that the will executed by the deceased fulfilled all the requirements under the law. That section 5 of the Act provides that, “(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.

………………………………………..

(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.”

20. It was submitted further that the objectors did not prove that the testator was of unsound mind. It is clear that the deceased had rental houses and could collect and count money in light of which he submits that a person of unsound mind cannot do so. That other than raising allegations the objectors did not adduce any evidence to prove that the testator was of unsound mind. It was submitted that the freedom of writing cannot be interpreted as distribution of an estate and though the objectors have denied knowing the witnesses the same are close family relatives.

Determination

21. The objector alleges that the petitioner implied undue influence with an element of coercion or force for the deceased to draw up the alleged will and as such the deceased did not exercise her free will in writing her will. The Evidence Act in instances of where a claim is made provides that the onus to prove the same is on the person that alleges the existence of undue influence to prove the same. Though the objectors claim that there was undue influence based on the deceased’s age to draw the said Will I find no conclusive evidence was tendered before this court in support of the same.

22. The objectors further allege that the deceased lacked capacity to make a will based on the fact that she was quite elderly and was suffering from cardiac which eventually led to her demise. The objectors I note had indicated initially in the affidavit in support of their application that the deceased had dementia however, no doctor’s report or medical certificate was presented before this court to support the same.

23. From the evidence tendered by all parties it is clear that the deceased spoke and understood kikuyu however, the Will in testament was drawn in English. An issue arising is that the deceased could not have attested the said will as she could not understand the contents therein. I find it would have been diligent on the part of the advocate drawing the said will to also draw up a certificate of translation to indicate that the contents of the said will had been read out to the deceased in a language she understands and she had attested to the same. This was not done.

24. The question that arises then is if the deceased had capacity, did she draw up the Will as alleged by the petitioner and does the same fulfill the requirements of the law? The defence 3rd witness George Karuri Wainaina in his testimony before this court testified that he was Salome’s stepbrother. He however appeared not sure if he had taken part in the making of the will. During cross-examination however, he stated that they had gone to Peter Munga who is the child to the deceased and petitioner herein to collect the will he also stated that he did not know where the Will was written as he found the document had already been written. In this regard I find the same disqualifies George Karuri Wainaina as a witness to the attestation of the deceased’s alleged will as it does not fulfill the requirements of Section 11(c) of the Act which provides that, “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.”

From the foregoing it is clear that the said Will does not meet all the requirement under the law and as such the same is not valid. Cost in the cause it is so ordered. Cost in the cause. It is so ordered.

Dated, signed and delivered this 5thday of December 2017.

R. E. OUGO

JUDGE

In the presence of;

Objectors Absent

Mr. Oyoo h/b for Mrs. Ngetho For the Petitioner

MS. Charity Court Clerk