Pandhaal v Pandhal & another (Civil Appeal E026 of 2023) [2026] KECA 930 (KLR) (15 May 2026) (Judgment)

Pandhaal v Pandhal & another (Civil Appeal E026 of 2023) [2026] KECA 930 (KLR) (15 May 2026) (Judgment) Neutral citation: [2026] KECA 930 (KLR) Republic of Kenya In the Court of Appeal at Mombasa Civil Appeal E026 of 2023 SG Kairu, KI Laibuta & GW Ngenye-Macharia, JJA May 15, 2026 Between Jagjit Singh Gurumukh Pandhaal Appellant and Tejinder Singh Pandhal 1st Respondent Pritam Kaur Pandhal 2nd Respondent (Being an appeal from the Judgment and Decree of the High Court of Kenya at Mombasa (J. Onyiego, J.) delivered on 11th February 2022 in Succession Cause No. 347 of 2008 Succession Cause 347 of 2008 ) Judgment 1.The instant appeal arises from the judgment and orders of the High Court of Kenya at Mombasa (J. Onyiego, J.) dated 11th February 2022 in Mombasa HC Succession Cause No. 347 of 2008. The impugned judgment and orders were pronounced in determination of a dispute over the estate of Gurumukh Singh Narain Singh Pandhal (the deceased), who died testate on 12th August 2008 while domiciled in Mombasa. 2.Before his demise, the deceased executed a written will dated 12th June 2007 and appointed his wife, Pritam Kaur Pandhal (the 1st respondent), as the sole executrix. He was survived by the 1st respondent, their two sons, Tejinder Singh Pandhal (the 2nd respondent) and Jagit Singh Gurumukh Pandhal (the appellant), and three daughters. 3.Under the will, the deceased bequeathed his entire estate to the 1st respondent with an express provision that, in the event that he (the deceased) and the 1st respondent die simultaneously, the estate would devolve to the 2nd respondent. 4.On 18th November 2008, the 1st respondent petitioned for a Grant of Probate of the written will vide a Petition dated 13th November 2008, listing the following assets as comprising the estate of the deceased, namely: 6 parcels of land in Mombasa; shares in Central Furniture Shop Ltd; two bank accounts held in Bank of India; and two bank accounts held in CFC Stanbic Bank. 5.The Notice of the 1st respondent’s application for the Grant was duly gazetted on 30th April 2009. A Grant of Probate was made on 18th June 2009 and issued on 7th August 2009. The Grant was subsequently confirmed on 28th May 2010 whereupon the deceased’s estate was distributed in accordance with the will. 6.On 26th June 2012, the 1st respondent filed summons for rectification of the certificate of confirmation of the Grant to include additional properties said to have been omitted in the petition for the Grant of Probate. The additional properties comprised fractional shares in four parcels of land referred to as Sub Nos. 13565, 13566, 13569 and 13570/I/MN. A fresh Grant including the additional properties was subsequently confirmed on 31st August 2012. 7.Six years later, the appellant filed a Notice of Motion dated 20th September 2018 seeking revocation of the Grant of Probate as well as reasonable provision from the deceased’s estate. The respondents opposed the Motion and filed separate replying affidavits sworn on 29th October 2018 and 15th November 2018 respectively. In addition, the respondents raised a preliminary objection dated 3rd September 2019 contending that the appellant’s application was time-barred under Section 30 of the Law of Succession Act, having been filed after confirmation of the grant;and that the Motion was defective for want of form under sections 44 and 49 of the Law of Succession Act. 8.In response to the respondents’ preliminary objection, the appellant filed a further affidavit sworn on 9th April 2019, but subsequently withdrew his application vide a Notice of Withdrawal dated 30th September 2019, followed by a fresh Chamber Summons application of even date, seeking revocation of the grant, and for reasonable provision. 9.In his fresh application dated 30th September 2019, the appellant sought revocation of the grant in its entirety; an order of reasonable provision of Kshs. 300,000 per month from the estate through the 2nd respondent; unrestricted access to the family residence on LR No. 1747/Section 1/MN in Nyali; orders restraining the respondents from dealing with seven of the estate properties as therein specified; police supervision of the execution of the aforesaid orders; an order directing the respondents to provide an inventory of the assets and liabilities of the deceased’s estate as at 20th September 2018 together with a statement of income as well as all funds expended in respect of the estate from the date of grant of probate; an order nullifying all transactions in respect of the specified properties undertaken subsequent to the death of the deceased; an order that the specified properties revert to the deceased’s estate; and that costs of the application be in the cause. 10.In support of his Summons, the appellant averred that he was a biological son of the deceased and a resident of Spain; that the deceased had never officially disowned/disinherited him or his three sisters who were not provided for in the will; that he had worked in the family furniture business alongside the deceased on a renewable work permit and held a 50% share in the business christened Pandhaal Furniture Manufacturers; that the 2nd respondent ran a distinct transport/haulage business; that the 2nd respondent unprocedurally took control of the furniture business after the deceased’s death, closed the workshop, and caused the revocation of his work permit; that the 2nd respondent transferred the estate property to himself and barred the appellant from the family home; that the 1st respondent was 85 years old, senile and unable to administer the estate; and that the 2nd respondent was exploiting her condition to misappropriate the assets comprising the deceased’s estate. 11.The appellant further averred that he had only gotten wind of the existence of the succession proceedings during his visit to Kenya in February 2018 when he chanced upon the Gazette Notice of the 1st respondent’s petition; that he had been rendered destitute and unable to support his dependants; and that the estate generated substantial rental income out of which he was entitled to a reasonable share. In particular, the appellant singled out the Palm Court Building on Mombasa/Block XXV/14 and 15 which, according to him, generated a monthly rental income of Kshs. 1,500,000 which funds were allegedly misappropriated by the 2nd respondent. He proposed a monthly provision of Kshs. 400,000, broken down into rent, school fees, domestic and other expenses. He also reiterated his demand for revocation of the grant of probate. 12.In his Summons, the appellant emphasized that his application was grounded on principles of justice, fairness, equity and constitutional protections. He urged the court to grant the orders sought with urgency to prevent further prejudice to himself and to other beneficiaries. In conclusion, the appellant averred that the situation was untenable, and that the loss and damage resulting from his continued exclusion would be irreparable. 13.In response to the appellant’s Summons, the respondents filed a Preliminary Objection dated 14th October 2019 on the following grounds, namely that the application was barred by the statute of limitation, having been filed after Confirmation of the Grant of Probate; that, therefore, the court lacked jurisdiction to entertain the Chamber Summons under the provisions of Section 30 of the Law of Succession Act, Cap 160; and that the Chamber Summons was defective for want of form under the provisions of Sections 44 and 49 of the Law of Succession Act. 14.Having heard the preliminary objection, the High Court delivered its ruling dated 9th October 2020 partly dismissing the preliminary objection. The court (M. Thande, J.) held that the prayer for reasonable provision was indeed time-barred, but that the remaining prayers of the application would proceed to substantive hearing and determination. Accordingly, the application proceeded to hearing by way of viva voce evidence whereby the appellant and the 2nd respondent testified. 15.In its judgment dated 11th February 2022, the High Court (J. Onyiego, J.) first considered the issue as to the validity of the will. In its considered judgment, the trial court held that failure to provide for a beneficiary does not of itself invalidate a will; that the deceased’s will met the statutory requirements under section 11 of the Law of Succession Act; and that countersigning each page was not a legal requirement. In addition to the foregoing, the trial court found no evidence of mental incapacity on the part of the deceased, taking to mind the fact that the appellant had expressly confirmed that the deceased died of a heart attack, and had acknowledged the deceased’s signature as appended on the will. 16.On the prayer for revocation of the grant, the court held that the appellant had not established any of the grounds required under section 76 of the Law of Succession Act to justify revocation of the Grant; that the deceased’s estate had been fully administered, and that the appellant had received a share thereof. According to the learned Judge, the prayer for reasonable provision had already been dismissed and could not be revived. Consequently, the court declined to grant the reliefs sought and dismissed the applicant’s application. 17.Dissatisfied with the learned Judge’s decision, the appellant filed the instant appeal against the judgment vide a Memorandum of Appeal dated 30th January 2023 on a whopping 12 grounds, which we take the liberty to summarise as follows, namely that the Learned Judge erred in law, in fact and in principle by: upholding the validity of the will despite overwhelming evidence to the contrary; accepting the will as valid without the original manuscript ever being produced; finding that the appellant had not established any grounds for revocation of the Grant of Probate issued on 18th June 2009; holding that the appellant was not entitled to any provision from the estate of the deceased; holding that the prayers sought in the appellant’s application were incapable of being granted; failing to note that the 1st respondent did not defend the application through viva voce evidence contrary to the court’s own express directions; disregarding the appellant’s evidence detailing reasons for revocation of the grant of probate; basing the judgment on an erroneous or faulty appreciation of the law; descending into the arena of litigation and improperly aiding the respondents to benefit from alleged illegalities concerning the estate; failing to arbitrate impartially between the appellant and the respondents; ignoring the appellant’s substantive submissions in support of his application and in response to the respondents’ allegations; and by failing to accord the appellant a fair hearing in the objection proceedings. 18.By reason of the matters aforesaid, the appellant prays that the impugned judgment and orders be set aside; that this Court enters judgment for the appellant as prayed in the Chamber Summons dated 30th September 2019; and that the costs of this appeal and of the proceedings in the trial court be borne by the respondents. 19.Having considered the record of appeal, the grounds on which it is anchored as well as the rival submissions of learned counsel, we find that the following issues fall to be determined, namely: (i) whether the learned Judge was at fault in upholding the validity of the will and grant of probate; (ii) whether the learned Judge erred by rejecting the relief sought by the appellant for reasonable provision; (iii) whether the learned Judge erred in finding that the appellant had not established sufficient grounds for revocation of the grant of probate; and (iv) whether the learned Judge failed to adjudicate the dispute impartially, thereby denying the appellant a fair hearing. 20.In support of the appeal, learned counsel for the appellant, M/s. Ngonze & Ngonze, filed written submissions and a list of authorities dated 7th March 2025. To bolster their submissions, counsel cited the cases of Ndirangu v Ndirangu [2022] KECA 1296 for the proposition that courts will only interfere with testamentary wishes in exceptional situations, such as where a dependent is left totally or inadequately provided for; In re Estate of Julius Mimano (Deceased) [2019] KEHC 10103 (KLR) for the proposition that the validity of a will is dependent on the capacity of the testator to make the will and compliance with the formal requirements of making the will; Harrison Kariuki Maina v Robinson Gathii Maina & 4 others [2019] KECA 384 for the proposition that evidence of a testator’s medical history of mental disorder at the time of execution can invalidate a will; Banks v. Goodfellow (1870) LR 5 QB 549, which laid out the essentials of testamentary capacity, being that a testator understand the nature of the act and extent of the property he is disposing, as well as being free from fraud or coercion; In re Estate of Risper Achieng Awuoche (Deceased) [2007] KEHC 1569 (KLR) for the proposition that, where any dispute or doubt exists as to the capacity of the testator, his testamentary capacity must be established and proved affirmatively, and that the burden of proof of sanity is considerably increased when it appears that the testator had been subject to previous unsoundness of mind; and Benjamin Leonard McFoy v United Africa Company Ltd [1961] All ER 1169 for the proposition that a void act is a nullity, and that proceedings founded on it are incurably bad; and that the court may declare such acts void. 21.In rebuttal, learned counsel for the respondents, M/s. Wanjiku & Wanjiku, filed written submissions dated 16th March 2025. Notably, counsel did not cite any authorities in support of their submissions. 22.On the 1st issue as to whether the learned Judge was at fault in upholding the validity of the will and grant of probate, we take to mind the following dictum:“52.It was the applicant’s/objector’s contention that the will presented before the court was not properly executed and therefore invalid. Two reasons to express his dissatisfaction were laid out. Firstly, that the executor did not counter sign all the pages of the will as was his practice/custom. Secondly, that his name was omitted from the list of beneficiaries … ….55.It is trite that, failure to provide for or list a perceived beneficiary or an heir or dependant to the estate is not a ground to invalidate a will … ….58.In the instant case, the objector did acknowledge that the signature on the impugned will was that of his father but doubted the same because not all pages were countersigned. The law is very clear on the critical elements constituting a valid will. Signing of a will in all pages is not a legal requirement nor pre-condition. To demand that each page be counter signed is a personal opinion which cannot stand the test of law. That ground is therefore not available.59.The other reason why the validity of the will was put into question is the mental status of the deceased. According to the objector, the deceased was sickly and therefore not capable of executing the will. However, there was no proof by way of medical evidence that the deceased was suffering from mental illness that incapacitated his mental faculties thus rendering him incapable of understanding the content and effect of what he was signing ….58.Besides, the objector did not adduce evidence to prove the nature of illness that incapacitated the deceased. In any event, it was the objector’s evidence that his father suffered a heart attack ….59.In a nutshell, I have no doubt that the will was signed by the deceased, which is not in dispute; it was witnessed by two witnesses; and that the deceased was mentally and physically fit when executing it.” 23.Taking issue with the learned Judge’s decision, counsel for the appellant contended that the will was a forgery because it was not countersigned on every page contrary to the deceased’s practice; that it made no provision for the appellant and other children; that the deceased was ill when the will was made, and could not be said to be in his usual frame of mind, thereby presenting a connotation of fraud, dishonesty and/or coercion on the part of the 2nd respondent; that the will was never disclosed to the appellant; and that none of the attesting witnesses were called to testify. 24.Counsel further submitted that, in his testimony, the 2nd respondent admitted and did not controvert any of the foregoing averments impeaching the will; that the original manuscript of the contested will was never presented to the court; and that the will purports that the entire estate of the deceased was bequeathed to the 1st respondent to the exclusion of his five children whom he had neither abandoned, disowned, excommunicated or disinherited during his lifetime. The appellant urged the Court to allow the appeal. 25.On their part, counsel for the respondents submitted that the trial court correctly applied the provisions of section 11 of the Law of Succession Act and made no error in its findings as to the validity of the will; that, in cross-examination, the appellant acknowledged the signature appended on the will as that of his father; that the 2nd respondent also acknowledged the signature as belonging to his father; and that the appellant failed to identify any statutory provision requiring a testator to sign the document on every page. 26.Counsel further submitted that failure to provide for a dependant in a will was not of itself a ground to invalidate it; that any dependant left out has the provisions of section 28 of the Act to his aid and, if properly invoked, the court may exercise its discretion and make provision for such a party. 27.In conclusion, counsel submitted that failure to produce the original will was not raised as an issue before the trial court; that the appellant did not seek to challenge the probate process on that ground; that the proceedings before the trial court did not require the will to be proved, as the Grant of Probate had been confirmed in 2012 and the estate duly distributed in accordance with the Grant; and that proving of the will by its production in court could only take place after re-opening of the case upon revocation of the Grant. 28.Sections 5 and 7 of the Law of Succession Act set out provisions as to a person’s capacity to make a will. The two sections read as follows:5.Persons capable of making wills and freedom of testation1.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. 29.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.…. ….7.Wills caused by fraud, coercion, importunity or mistakeA will or any part of a will, the making of which has been caused by fraud or coercion, or by such importunity as takes away the free agency of the testator, or has been induced by mistake, is void. 30.In addition to the foregoing, section 11 of the Act sets out the elements of a valid written will. That section reads:11.Written willsNo 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. 31.In the present case, the will in question met the statutory requirements prescribed under section 11 of the Act in that it was duly signed and attested. It is instructive that both the appellant and the 2nd respondent acknowledged the signature appended on the will as that of their deceased father as attested by two independent witnesses. It is also noteworthy that the appellant stated during cross-examination thus: “I can see my father signed the will. I have no doubt that is his signature.” 32.Notwithstanding his confirmation that the signature appended on the will was that of his father, the appellant nonetheless contended that the testator’s failure to countersign on each and every page of the will contrary to his alleged “usual practice” rendered it invalid. We are not so persuaded. It is not lost on us that section 11 of the Act does not require a testator to countersign on every page of his/her will in order to be considered valid. Moreover, no evidence was adduced to show that it was the deceased’s usual practice to countersign every page of documents executed by him. Even if that were the case, the contested will was in full compliance with section 11 of the Act and, therefore, its validity was beyond contest. 32.The appellant’s further contention is that the deceased was ill at the time of executing the will and could not have been in the right frame of mind. In Erastus Maina Gikunu & another v Godfrey Gichuhi Gikunu & another [2016] KECA 126 (KLR), this Court held that:“The state of mind necessary to vitiate a valid will, whether arising from mental or physical illness, drunkenness, or from any other cause must render the testator incapable of knowing what he is doing. The burden of proving that a testator was, at the time of making the will, not of sound mind, is upon the person so alleging. This is a factual question often determined by medical evidence.” 33.In the same vein in Yasmin Rashid Ganatra & another (Suing as legal representatives of Rashid Juma Kassam) v Gulzar Abdul Wais [2015] KECA 342 (KLR), Kiage JA held that:“Enough to say, I think, that there does exist under Section 5(3)of the Act a rebuttable presumption of soundness of mind. The presumption is rebutted by a showing that the testator is 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. The burden of rebutting soundness of mind is borne by he that alleges the contrary. The burden though, is not an onerous one, for, as the learned authors of Halsbury’s Laws of England 4th Edition Vol. 177 opine at page 903-904;“where any dispute or doubt of sanity exists, the person propounding a will must establish and prove affirmatively the testator’s capacity and that where the objector has proved incapacity before the date of the will, the burden is shifted to the person propounding the will to show that it was made after recovery or during a lucid interval. The same treatise further shows that the issue of a testator’s capacity is one of fact to be proved by medical evidence, oral evidence of the witnesses who knew the testator well or by circumstantial evidence and that the question of capacity of is one of degree, the testator’s mind does not have to be perfectly balanced and the question of capacity does not solely depend on scientific or legal definition. It seems that if the objector produces evidence which raises suspicion of the testator’s capacity at time of the execution of the will which generally disturbs the conscience of the court as to whether or not the testator had necessary capacity, he had discharged his burden of proof, and the burden shifts to the person setting up the will to satisfy the court that the testator had necessary capacity.’” 34.In his Chamber Summons, the appellant did not plead mental incapacity on the part of the deceased as one of the grounds for the orders sought to revoke the Grant of Probate. The issue as to the deceased’s mental capacity, or as to whether there was any element of force or coercion in making the will, was not raised for determination at the trial. Furthermore, no medical or other evidence was presented to cast any doubt on the deceased’s mental capacity at any material time. The appellant only raised concerns over his father’s capacity in written submissions filed after the close of the parties’ respective cases. To our mind, those submissions did not constitute pleadings or evidence on which this Court could pronounce itself on the issue as to the alleged invalidity of the will. Likewise, the appellant’s doubts regarding the attestation of the will counts for little as it did not feature in his pleadings or testimony, and did not arise as an issue for determination by the trial court. Accordingly, it cannot be raised before us this late in the day. 35.Finally, the appellant contests the validity of the will on the ground that it makes no provision for the deceased’s children, even though they had not been formally disowned or disinherited. We are mindful of the fact that failure to make provision for dependants does not of itself invalidate a will since such provision is not a mandatory requirement under section 11 of the Act. However, such failure may form the basis for an order of reasonable provision to deserving dependants pursuant to section 28 of the Act. 36.In Elizabeth Kamene Ndolo v George Matata Ndolo [1996] KECA 209 (KLR), this Court held that:“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.” 37.In view of the foregoing, the learned Judge cannot be faulted for concluding as we hereby do that the will was valid, which determines the 1st issue before us. 38.Turning to the 2nd issue as to whether the learned Judge erred by declining the relief sought for reasonable provision, we take to mind the learned Judge’s words in which he had this to say:“74.The other issue raised is that of reasonable provision. This prayer was canvassed through a Preliminary Objection and a ruling delivered by Thande, J on 9th October, 2020. There is no application for review nor an appeal. That ground therefore cannot be raised again before me being a court of concurrent jurisdiction. Accordingly, I cannot decide on the same issue as it has been determined on merit hence res-judicata.75.Besides, what other reasonable provision does he want if he has already been given an equal amount with his brother? ….” 39.Counsel for the appellant took a different view and contended that the trial court wrongly dismissed the appellant’s application without considering his evidence that he was rendered destitute; that the deceased’s estate generates substantial rental income from which he sought reasonable provision; and that the learned Judge misconstrued the court’s earlier ruling and the res judicata principle to decline the reliefs sought. According to learned counsel, the deceased’s estate was never distributed equally and/or equitably among his heirs, as the 1st respondent allegedly transferred the estate to the 2nd respondent in its entirety. 40.On their part, learned counsel for the respondents submitted that the objection that the appellant’s claim for reasonable provision was time‑barred under section 30 of the Act was upheld by the High Court in its ruling dated 9th October 2020; that the ruling in that regard was not challenged and, therefore, the prayer for reasonable provision was res judicata and not available at the substantive hearing. 41.Counsel further submitted that, upon confirmation of the Grant, the 1st respondent transferred 3 properties to the appellant; that, in the circumstances, the appellant had already been provided for; that the appellant admitted to having sold the said properties; and that the trial court found that the appellant failed to prove his entitlement to reasonable provision. In conclusion, counsel submitted that the learned Judge was not at fault by so finding. 42.The legal framework governing applications for reasonable provision for dependants is contained in Part III of the Act. Section 30 sets out a limitation on such applications as follows:30.Limitation of timeNo application under this Part shall be brought after a grant of representation in respect of the estate to which the application refers has been confirmed as provided by section 71. 43.It is instructive that the initial Grant of Probate in this case was confirmed on 28th May 2010 while the rectified Grant was confirmed on 31st August 2012. The application filed by the appellant seeking reasonable provision was dated 20th September 2018, but was subsequently withdrawn. It is also noteworthy that the Chamber Summons seeking the same orders was dated 30th September 2019. In opposition to the appellant’s Chamber Summons, the respondents raised a preliminary objection on the grounds that it was statute-barred under and by virtue of section 30 of the Act. In its ruling dated 9th October 2020, the High Court (M. Thande, J.) upheld the respondents’ preliminary objection and dismissed the appellant’s application. We find nothing on record to suggest that the appellant sought review of or appealed against that ruling, which remains in force. In the circumstances, we reach the inescapable conclusion that the learned Judge was not at fault in declining to entertain the appellant’s application for reasonable provision as the same was res judicata. 44.The limitation or statute bar aside, the facts and circumstances of this case do not support any grant of reasonable provision as sought by the appellant. In Erastus Maina Gikunu & another v Godfrey Gichuhi Gikunu & another (supra), this Court thus elucidated on the rationale behind the discretionary power to make orders of reasonable provision of dependants:“… it is important to say here that, although there is this freedom, section 26 of the Act enjoins the testator to make reasonable provision for his dependants. The court is permitted, on application and where it is satisfied that the testator has not done so to intervene by making what it deems reasonable provision. The desire of society to protect the family of a testator is the main reason for, not only allowing testamentary freedom but also imposing certain limitations and protection against disinheritance” 45.Section 28 of the Act sets out the factors to be considered by a court when determining the question as to whether to grant orders of reasonable provision as follows:28.Circumstances to be taken into account by court in making orderIn 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 reasons for not making provision for the dependant. 46.In the same vein, this Court had this to say in Dadhialla v Chaudri (Sued as Executor of the Estate of Gurdip Kaur Sagoo) & 2 others [2025] KECA 728 (KLR):“45.Section 26 of the Act is unambiguous on when the court can exercise its discretion in terms of interfering to make reasonable provision for a dependent. However, in exercising its discretion the court must have regard to the circumstances stated in Section 28 of the Act. This Court in John Gitata Mwangi & 3 others v Jonathan Njuguna Mwangi & 4 others [1999] KECA 184 (KLR) restated the importance of having regard to Section 28 of the Act in the following terms:“In order that the court may be enabled to come to a proper conclusion as to what order it should make, a dependent has the duty to give satisfactory evidence as to his past, present or future capital or income and his existing and future needs. Without this, the court will not be able to make any sensible order. Whether the deceased has made any advancement to the dependent and the circumstances of the deceased’s other dependants are also factors to be considered. The general circumstances of the case including the deceased’s ascertainable reasons for not providing for the dependent must also be considered. Which of these factors will play a vital role in their combined effect, depends on each particular case.’” 47.In the present case, the appellant did not dispute that the 1st respondent had transferred to him three of the eleven properties comprising the deceased’s estate, which properties he described as “two plots and a go down.” The appellant also conceded that he had sold the properties between 2013 and 2014. He further acknowledged that the 2nd respondent was also given three properties. No credible evidence was presented to establish an inequitable distribution of the estate or the alleged monthly rental income from the Palm Tree Building. Accordingly, we find no fault in the learned Judge’s decision to decline the appellant’s application for reasonable provision. 48.On the 3rd issue as to whether the learned Judge erred in finding that the appellant had not established sufficient grounds for revocation of the grant of probate, we take to mind the learned Judge’s holding in the following words:“63.Having found that the will was properly executed, I am left with the ground of lack of knowledge. Grounds for revocation of a grant are clearly set out under Section 76 of the Law of Succession [Act] ….64.It was incumbent on the applicant to prove any of the grounds set out above for the court to revoke the grant ….66.When did the objector come to learn of these proceedings? At first he claimed that he discovered [in] the year 2018 when he saw a Kenya Gazette notice. Later, on cross examination, he said he came to learn of the will [in] 2016 ….67.Curiously, the objector acknowledges transfer of three properties to him by the mother out of the estate in the year 2013 with the mother as the transferor in her capacity as executrix. The objector further admitted in cross examination that he and his brother (respondent) were given two plots which were equal ….69.By accepting transfer of property acquired through the process, he is deemed to have acquiesced to the process. He is deemed to have validated the process hence recognized it as valid. Why should he ask a share of his brother’s share yet he has sold the whole of his share?70.…. I do not think the objector is being sincere in his claim for revocation. This is an afterthought having realised that he has squandered his share. The estate has been administered by the sole executrix to completion and the executrix has no single property in her name.71.It is 12 years since the grant was confirmed and estate duly distributed with the objector as a beneficiary. It is my finding that the grounds for revocation have not been proved to the required standard.” 49.The only thing learned counsel for the appellant had to say on this issue is that the consequence of the will being allegedly “forged” is that the entirety of the proceedings resulting in the Grant of Probate to the 1st respondent as well as any consequential orders, processes and/or transactions were invalid, null and void ab initio. 50.With all due respect to counsel, this line of submission does not hold in view of our holding, as did the learned Judge, that the validity of the deceased’s will was unassailable. 51.On their part, learned counsel for the respondents submitted that the appellant failed to specify on which ground under section 76 of the Act he relied on, and produced no evidence to show that proceedings were defective, obtained by fraud, material nondisclosure, or that the grant had become inoperative; that the appellant gave inconsistent dates on which he allegedly learned of the proceedings in the probate and administration cause while, at the same time, admitting that he accepted and subsequently sold three properties transferred to him in 2013, thereby undermining his claim; and that the learned Judge correctly found that none of the statutory grounds for revocation of the Grant were established. 52.Section 76 of the Act sets out the grounds on which a Grant may be revoked or annulled and reads: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-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; orii.to proceed diligently with the administration of the estate; oriii.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; ore.that the grant has become useless and inoperative through subsequent circumstances. 53.Having considered the record as put to us, we find that the appellant did not establish any of the grounds set out in section 76 of the Act to warrant revocation of the Grant as sought. A cursory look at his pleadings and testimony suggests that his case was only founded on the presumption that invalidating the will as urged would have rendered the proceedings substantively defective; and that the 1st respondent allegedly suffered from dementia, thereby rendering her incapable of administering the estate, and necessitating revocation of the grant. 54.We hasten to observe that, having already established that the deceased’s will was valid, the 1st respondent’s alleged mental condition was inconsequential in the absence of any credible evidence that she was incapable of administering the estate in accordance with the Grant of Probate. His claim that the 1st respondent was illiterate, suffering from dementia, and could not make an independent decision, remained unfounded. The video clips produced by the appellant containing a record of his conversation with the 1st respondent counted for little as the trial court correctly concluded that none of such recordings showed any sign of mental infirmity on the part of the 1st respondent. 55.Likewise, the appellant’s claim that he was unaware of the probate proceedings culminating in the confirmation of the Grant until the year 2016 was equally unfounded and contradictory to his pleading to the effect that he became aware of the proceedings in February 2018. In any event, he cannot seek to impeach the probate proceedings after transfer to him by the 1st respondent in her capacity as executrix of three of the properties comprising the deceased’s estate, namely: Mombasa/Block XIX/150; Subdivision No. 13569/I/MN; and Subdivision No. 13570/I/MN, all of which he subsequently sold. Having benefited from the deceased’s estate in accordance with the will, the appellant cannot be seen to approbate and reprobate. 56.The principle that one cannot approbate and reprobate is rooted in equity and good conscience, ensuring fairness in legal proceedings.It’s deeply rooted in the concept of equity,good conscienceand fairne sspreventing a person from accepting a benefit under an instrument andlater challenging its validity when it becomes inconvenient (see: Joyce N. Simitu v Stephen O. Mallowah [2013] eKLR; and AMM v Republic [2020] KEHC 6431 (KLR)). In view of the foregoing, we find, as did the learned Judge, that the evidence on record did not establish any of the grounds set out in section 76 of the Act to warrant revocation of the Grant. 57.Turning to the 4th and last issue as to whether the appellant was denied a fair hearing by reason of the alleged bias on the part of the learned Judge’s conduct of the proceedings, learned counsel for the appellant submitted that the trial was procedurally unfair; that the appellant’s application was essentially uncontested; that the learned Judge relied on replying affidavits filed in response to the appellant’s withdrawn Motion; that the learned Judge disregarded the uncontested factual averments and failed to adjudicate on the appellant’s documentary evidence and testimony; and that the 1st respondent, who was the executrix of the will and a key witness, did not give oral evidence. 58.On their part, learned counsel for the respondents submitted that the affidavits to which the respondents referred were produced and relied upon by both parties at the substantive hearing; that the 2nd respondent gave oral evidence and was cross‑examined; that the appellant’s evidence was duly tested and was by no means uncontroverted; that, in any event, the appellant had the primary duty to prove his case, that the absence of evidence from the respondents did not of itself relieve the appellant of his burden of proof of his allegations; and that the 1st respondent’s failure to give viva voce evidence is not of itself sufficient ground for revocation of the Grant or retrial of the appellant’s claim. 59.In our considered view, the withdrawal of the appellant’s initial Notice of Motion did not result in striking out of the replying affidavits filed by the respondents, but only brought the proceedings on the Motion to an end. In any event, the Chamber Summons subsequently filed by the appellant seeking the same reliefs sought in the withdrawn Motion was in all respects identical to the withdrawn Notice of Motion. In the circumstances, the 2nd respondent was entitled to rely on the said affidavits at the trial since the appellant annexed them to his own affidavit in support of the Chamber Summons. By doing so, the appellant introduced the affidavits complained of into the court record to which the parties were at liberty to rely. Evidently, the respondents’ replying affidavits effectively rebutted the allegations made by the appellant in his initial Motion as replicated in his Chamber Summons. All in all, the appellant’s contention that the learned Judge was biased and did not accord him a fair hearing cannot stand. In conclusion, we find nothing on record to suggest that the learned Judge was at fault in the conduct of the proceedings culminating in the impugned judgment. 60.Having considered the record as put to us, the grounds on which the appeal is anchored, the rival submissions of learned counsel, the cited authorities and the law, we reach the inescapable conclusion that the appeal has no merit and is hereby dismissed in its entirety. Consequently:a.the judgment and decree of the High Court of Kenya at Mombasa (J. Onyiego, J.) delivered on 11th February 2022 be and is hereby upheld; andb.the appellant shall bear the costs of the appeal.Orders accordingly. DATED AND DELIVERED AT MOMBASA THIS 15TH DAY MAY, 2026.S. GATEMBU KAIRU, FCIArb..................................JUDGE OF APPEALDR. K. I. LAIBUTA CArb, FCIArb............................................JUDGE OF APPEALG. W. NGENYE-MACHARIA..........................................JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR