[2022] KEHC 9891 (KLR)

Kurgat & another v Kurgat (Probate & Administration 112 of 2015) [2022] KEHC 9891 (KLR) (13 July 2022) (Ruling)

Neutral citation: [2022] KEHC 9891 (KLR)

Republic of Kenya

In the High Court at Eldoret

Probate & Administration 112 of 2015

RN Nyakundi, J

July 13, 2022

In the matter of the estate of Thomas Chepkurgat Cheptiony (Deceased)

Between

Cleti Kurgat

1st Petitioner

Agnes Kurgat

2nd Petitioner

and

Ascah Kurgat

Objector

Ruling

1. This matter relates to the estate of Thomas Chepkurgat Cheptiony who died on 20th July, 2001.

2. According to the letter from the Chief of Irong Location, dated 4th February 2015, the deceased had been survived by the following dependants;a.Agnes Jepkiyeny Cheptiony – Widowb.Cleti Kiprotich Kurgat – Sonc.Ambrose Kipkoech Kurgat – Son (Deceased)d.Michael Kipkoskei Kurgat – Son (Deceased)e.Benjamin Kibiwott Kurgat – Son (Deceased)f.Veronica Chemweno – Daughterg.Consolata Kurgat – Daughterh.Agnes Jemaiyo Kurgat – Daughteri.Bendetta Kurgat – Daughterj.Evelyne Kurgat – Daughterk.Douglas Kipruto Kurgat – Sonl.Evans Kipruto Kurgat – Sonm.Gladys Jebet Kurgat – Sonn.Purity Jepkosgei Kurgat – Daughtero.Hillary Kimutai Kurgat – Grandson

3. Representation to his estate was sought vide a petition lodged herein on 20th March 2015, by Cleti Kurgat and Agnes Kurgat, in their capacity as son and wife of the deceased. The Petitioners herein petitioned Court for a grant of Letters of Administration Intestate which grant was issued on 8th February, 2016.

4. As parties were awaiting the confirmation of the said grant, in a new turn of events, on 17th July, 2017 when matter came up for hearing, the 2nd Petitioner herein told Court that she had traced the original Will of the deceased and sought leave to have the same introduced in Court so that Court could determine its validity and propound whether the said Will represented the last wishes of the deceased. Consequently, on 31st July 2017, the 2nd Petitioner petitioned court for the grant probate with written Will. The said petitioned was opposed by the 1st Petitioner vide his affidavit sworn 6th July, 2018. Agnes Kurgat an interested party also opposed the said petition vide her affidavit of protest sworn on 13th December, 2019.

5. Parties herein agreed to proceed by way of viva voce evidence. Both parties called their witnesses and their evidence can be summarized as follows;

Applicant’s Case 6. AW1 Agnes Jepkiyeny Cheptiony, testified that the deceased was her husband. She testified that the deceased died on 20/7/2001 having distributed his estate. She testified that the deceased died testate having made a Will which she produced in Court. She further testified that the deceased had signed the Will on 29/1/1995 in her presence and that of Cleti Kurgat, Veronica Kurgat and Benjamin Kipkemboi. She went on to testify that she kept the will and instructed Cleti Kurgat to sub-divided the land in accordance with and he informed her that he had already done it but he never used the will. She told Court that in the will the deceased had indicated that she gets 150 acres of land as her children were small, Veronica was given 55 acres of land. She testified that parcel of land known as UASIN GISHU/KIMUMU/409 was given to her and she uses it. She further testified that land parcel known as ITEN/TOWNSHIP/18 was partly given to her and Veronica but Michaeal and Cleti Kurgat took it all. She testified that the deceased had tractors; KLV 377 Ford tractor was given Ambrose, KUE 042 Ford tractor was taken by Michael’s family, KYY 809 Ford Tractor was taken by Cleti Kurgat and KXX 467 was given to her. She further testified that the Combine harvester Reg No. KLN 651 was given to Cleti Kurgat whereas 504 Peugeot KAA 461U was given to her.

7. She testified that that she lives on parcel of land known as IRONG/SERGOIT/363. She further testified that the said parcel of land was given to her, Michael Kurgat, Ambrose Kurgat and Benjamin Kibiwot Kurgat they each got 13. 25 acres. She further testified that it was agreed that that she lives in the deceased home and that is where she stays. She told court that Karuna Farm Plot No. 8568/1 was given to Cleti Kurgat. She testified that she got married to the deceased in 1992 and at the time Cleti Kurgat was then still using the said farm. She prayed that the deceased’s estate be distributed as per Will and further testified that the deceased had made the Will voluntarily and that he was not sick at the time of making the Will.

8. On cross-examination she told Court that in 1992 when she got married to the deceased the 1st wife had already died. She conceded that she had signed the petition herein together the affidavit in support of the petition. She however testified that she forced to sign the said by Cleti Kurgat and Hillary Kurgat who wanted her to confirm that the deceased did not have a Will. She reiterated that she knew of the existence of the Will and that the proposal at hand does not agree with the wishes in the Will.

9. She denied that parties had a family meeting on 12/12/2013. She conceded that she wrote Minutes in said meeting and further testified that she was forced to write and sign the said Minutes. She testified that she knows Lucy Kemboi as the wife to Ambrose Kurgat who was a son to the deceased. She conceded that the said Lucy Kemboi had sued her in Eldoret HC Citation No. 198 of 2014 but denied knowing the reason why she had been sued. She also told Court she does not know whether Lucy in the aforementioned matter had indicated that the deceased had died without a Will. She conceded that she had only revealed about the existence of the said Will in July 2018. She testified that Will was handwritten by one Ben Kipkemboi who was also witnessed it. She testified that the marker spoke Kalenjin and conceded that the handwritten copy is not available. She also conceded that the Will was not signed by deceased and that neither did he affix his thumb print. She also conceded that she has no other document to show that the handwriting therein belongs to the deceased.

10. AW2 William Cheboswony Korat, testified that the deceased was his neighbour. He further testified that he had signed a document made by the deceased but couldn’t where he signed it from but the deceased was in the company of his son whom he could not remember the name. He told Court that he could not remember how the deceased had sub-divided the properties but he knows of land in Karuna and Eureka Farm and his home at Kamarin. He testified that the Will was meant to sub-divided the deceased’s estate and that the deceased was not coerced by anyone into writing the said Will.

11. On cross-examination he told Court that at time of signing of the Will Cleti was not there. He also conceded that he could not remember when he signed and where he had signed the Will from. He further conceded that he could not remember the Will was handwritten or signed neither could he remember those were present at the time of signing the Will. He also told Court that that the contents of the Will were never read to him. He also told Court that he does not know whether all the children of the deceased got a shared of the said estate. he also told Court that he can’t remember the deceased signed the Will at the time he signed it and conceded that he never saw the deceased personally signing it. He reiterated that he could remember the child who was living with the deceased at the time when he signed the said Will. He also testified that he has never seen the title deed to Karuna Farm.

12. AW3 Benjamin Kipkemboi Cheptiony, testified that the deceased was his uncle. He told Court that the deceased made a Will and that he had signed. He testified that the Will was meant to sub-divided the estate of the deceased to his children. He further told Court that the deceased was not coerced into making the said Will and that he was of sound mind. He further testified that at the time of making Will Cleti Kurgat, Veronica Chemweno and Agnes Cheptiony were present. He told Court that deceased gave Karun farm to Cleti Kuragt.

13. On cross-examination he told Court that he was present when the Will was being written. He also told Court that the deceased spoke as he wrote. He further testified that the deceased spoke in Kalenjin as he wrote in English. He told court that the date when the Will was written was 2/1/1995. He conceded that he did not have handwritten draft but told Court that he had left it with deceased. He conceded that the Will that is before Court is typed and stated that the typing was done following at the Iten and it was taken by the deceased.

14. He further testified that he signed the Will on 30th January, 1995 but the Will indicates that he had signed it on 29th January, 1995 which he conceded he could not have done it was the very day when the Will got typed. He also told Court that amongst the deceased’s daughters it was only Veronica who got a share in the said Will. He also conceded that not all of the children of the deceased got a share of his estate in the said Will.

15. He also conceded that the deceased had not signed the Will and that William Cheboswony Kurat was not there at the time when they signed the Will. He also told Court that when he signed the Will Cleti was not there.

16. AW4 Ascah Kurgat, testified that the deceased is her father in law, having been married to one Michael Kosgei who is also deceased. She told court the said Michael Kosgei was the deceased’s first born that they lived in Kamaring farm and later the deceased gave them the Eureka farm. She went on to testify that Cleti Kurgat got the Karuna farm and that the Karuna farm is big.

17. On cross-examination she told court that she had read the Will and knows it contents. She further testified that at the Eureka farm Michael got 50 acres of land. The deceased got 150 acres of the said land. Benjamin got 50 acres whereas Veronica got 25 acres. She further testified that Agnes, Michael, Ambrose and Benjamin each got 13. 25 acres of the Kamaring farm. She conceded that she does not the year which the Will was written. She also told Court that the deceased’s estate had not been distributed in accordance with the Will.

18. AW5 Michael Changwany, testified that the deceased was his uncle and that he had worked for him as a farm man and later as his driver. He further testified that the parcel of land at Karuna belonged to the deceased and that when deceased died Cleti Kurgat was given the land as his.

19. On cross-examination he told Court that he does not know when the deceased died but reiterated that the Karuna farm belonged to the deceased and that he cannot remember the year when Cleti Kurgat begun living on the said farm.

20. AW6 Richard Kimngetich Changwony, testified that the deceased was his uncle. That the deceased had land in Kamaring, Karuna and also Eureka. He further testified that the Karuna farm is 600acres and that after sub-division the deceased remained with 150 acres. He also told Court that the deceased gave the Karuna farm to his son Cleti Kurgat whereas the homestead was left to AW1.

21. On cross-examination he reiterated that the deceased gave the Karuna farm to Cleti Kurgat. He has told Court that he has never seen the alleged written Will but only heard that the deceased had left a Will. He also testified that when AW1 got married she came with a child who was about 2 years old at the time. He also told Court that the deceased had (4) daughters and they all didn’t get land from their father.

Petitioner’s Case 22. PW1 Cleti Kiprotich Kurgat, testified that the deceased was his father and that he had died in 2001, living behind AW1 as his widow. He further testified that AW1 is not his mother and that his mother was Katarina Chepkitiony who had died before the deceased had distributed his estate. He testified that the deceased had tractors and parcels of land and that he had shared out the tractors.

23. He told Court that before this instant petition was filed they sat down as family and agreed to file the petition. He testified that they did not force AW1 to sign the papers. He further testified that they did not know that their late father had drawn a Will and the said Will was only brought to his attention when AW1 availed it in court in the year 2017. He further told Court that he was not present when the Will was written and that his late father was illiterate.

24. He testified that that he is a Keiyo and that in the Keiyo culture where a deceased left behind a Will, his family should be informed 40 days after his demise and during the memorial service. He testified that AW1 never availed the said Will at the time. He further told Court that the Will is forged and urged Court to disregard it.

25. On cross-examination he told court that there was consensus by the family members to sub-divided the said estate. He further testified that at the said family meeting AW 4 and Ambrose Kurgat were not present.

26. He testified that Kamaring farm is 53 acres and that he was born there but does not live on the said land. He also told Court that he knows the Eureka farm but does not live there. He testified that his mother and brother utilize the said farm and that Michael Kurgat has 70 acres, Ambrose 70 acres, Benjamin 70 acres, Veronicah 5 acres and AW1 50 acres. He further told Court that the said allocations were made when the deceased was alive and that he told them to utilize the said portions.

27. He further testified that he lives in Karuna farm which is 140 acres and that the said farm belongs to him having bought it 1980. He told Court that he has a sale agreement for it and that they had bought as Kangalwa farm where he was the director of the said Company.

28. He also testified that he knows of the Kimumu farm which is 3 acres. He further told Court that the left AW1 to operate the homes therein in.

29. He told Court that the plot in Iten Township was given to him and that Benjamin and Hillary also live there. He testified that AW 4 did not get a share of the said land. He further testified that KLV was given to Ambrose, KUE 042 was given to Michael, KYY 809 was given to him, KXX 187 was given to AW1, KQC 648 was given to Benjamin, the Combine harvester was scrap and KAA 461 was given to AW1. He testified that the land in Tamarine is not fully utilized. He also reiterated that the Will was never read to them in accordance with the Keiyo Customs.

30. He also testified that the deceased did not know how to write and worked for the Ministry of Agriculture. He further testified that digging terraces was his occupation. He also conceded that in 1995 the deceased was in a good state of health. He reiterated that he bought the farm in Karuna but conceded that the Minutes of 12/12/2013 indicate that the entire estate belonged to the deceased. He further testified that they did not include the said tractors as they had already been shared. He told Court that KXX 187 belonged to him having bought the same the deceased was still alive.

Interested Party’s Case 31. IW1 Agnes Chemaiyo Kurgat, testified that the deceased was her father. She told Court that PW1 is her brother whereas AW1 is her step-mother. She told Court that when deceased died she was not aware that he had left a Will and had not seen the alleged Will until the matter came to Court. She further testified that the said Will does not have her name as a beneficiary. She also testified that she has not read the Will and that the Will does make a provision for and her sisters. She also urged Court to make a provision for her and her sisters in the estate of the deceased.

32. On cross-examination she reiterated that she wants to be provided for in the estate of the deceased. She also testified that she knows what the estate constitutes and does not how the Karuna farm was purchased but the deceased owed it and later gave it to PW1. She further testified that the said farm is about 150 acres and that PW1 is in occupation of it.

33. She further told Court that they had already laid their claim on the estate and that when an agreement was made before the filing of this petition she was give 1. 5 acres of the ancestral home and 10 acres at Eureka farm. She further testified that she now wished that the estate be divided equally amongst all the 12 children of the deceased. She also told Court that she does not know whether the estate of the deceased is currently being utilized in accordance with the Will.

34. She also testified that her late father was illiterate and that she had never seen him write. She further testified that in 1995 she was an adult and was about 34 years old. She also reiterated that although she had stated that she had perused the Will in her affidavit she had not read the Will.

35. At the close of the oral hearings, the parties were directed to file and exchange written submissions. There has been compliance, for both sides have filed their respective written submissions. I have read through them and noted the arguments made therein.

Analysis and Determination 36. Before delve into the issues in this cause, I must point out that there are twin petitions for grants of representation in cause relating to the estate of Thomas Chepkurgat Cheptiony currently before this court. Ideally, only one petition should be filed in one cause relating to the same estate. The 2nd Petitioner herein upon the discovery of the alleged Will ought to have initiated a separate petition. In the circumstances of this estate two causes ought to be initiated, one in testacy and the other in intestacy. It would be unacceptable that the two estates, one intestate and the other testate, be handled in one cause.

37. Be as it may, the issue that this Court has been called to determine is whether the deceased herein died testate or intestate and whether the Will dated 29th January, 1995 is valid. It is well settled that the court need to be satisfied that the impugned will meets the criteria of a document, it must purport to embody the testamentary intentions of the deceased and the document must have been intended by the deceased to be his or her will. It is important for the court to draw a distinction between the intention to make a will and the intention for a particular document to have testamentary effect.

38. It is not in dispute that the 1st & 2nd Petitioner herein on 26th March, 2015 both petitioned Court for the grant of letters of administration intestate, which grant was issued on 8th February, 2016.

39. As the matter was still pending before Court, the 2nd Petitioner on 17th July, 2017 in a new turn of events informed Court that she had traced the original Will of the deceased herein. She sought leave to introduce the said Will before Court which leave was granted and on 31st July, 2017 she petitioned Court for the grant of probate with written will in the instant cause. The object of the construction of a will is to ascertain the deceased expressed intention, that is the intention which the will affirms expressly or by implication on the distribution of his or her estate.

40. It is worth noting that the 2nd Petitioner in the matter in fact signed the petition for the grant of letters of administration intestate with respect to the deceased estate herein. Why then would she turn around and assert quite strongly that the deceased died testate?

41. The 2nd Petitioner has testified that the deceased wrote the alleged will in 1995 and that she kept it. She also testified that she had been forced to sign the petition with respect to the grant of letters of administration intestate. The 2nd Petitioner however did not table any evidence before Court to prove that she had been coerced into signing the said petition.

42. The Will currently before court was only brought to the attention of the beneficiaries of the deceased by the 2nd Petitioner on 17th July, 2018. This is 17 years after the demise of the deceased. The 2nd Petitioner has not render any explanation as to why she chose to remain mum about the said will for 17 years. The 2nd Petitioner’s conduct regarding the discovery of the alleged Will to me raises a lot of suspicion

43. The 1st Petitioner together with the Interested parties in this cause have challenged the validity of the alleged Will. In Perrin v Morgan [1943] A.C. 399, at page 420, Lord Romer has emphasized that:‘I take it to be a cardinal rule of construction that a will should be so construed as to give effect to the intention of the testator, such intention being gathered from the language of the will read in the light of the circumstances in which the will was made. To understand the language employed the Court is entitled, to use a familiar expression, to sit in the testator’s armchair. When seated there, however, the Court is not entitled to make a fresh will for the testator merely because it strongly suspects that the testator did not mean what he has plainly said.’

44. A Will is the means by which a person exercises his or her testamentary freedom to bequeath his or her estate without relying on intestacy rules of probate. The validity of a will is dependent on, the capacity of the testator to make a will at the material time and compliance with the formal requirements for the making of a will. Roy Buchanan, Erica Buchanan Trust, Kevin Buchanan and Jean Hall (Executrix of the Estate of Ulysses, Jabez Buchanan, deceased [2016] JMSC Civ 57, opined that:‘…a court of construction cannot rewrite a Will……The court cannot speculate upon what peradventure may ... have been in the testator’s mind; [the court] must find words which are absolute and express,” per Lord Halsbury L.C; Scale v Rawlins [1892] A.C. 342 at p.343). Similarly, according to Jenkins L.J. in Re Bailey [1951] Ch. 407 at page 421; It is not the function of a court of construction to improve upon or perfect testamentary dispositions. The function of the court is to give effect to the dispositions actually made as appearing expressly or by necessary implication from the language of the will applied to the surrounding circumstances of the case.’

45. The threshold of the essentials of testamentary capacity were laid out in the case of Banks v Goodfellow {1870} LR 5 QB 549 as cited with approval in the case of Vaghella v Vaghella:“a testator shall understand the nature of the act and its effects, shall understand the extent of property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties-that no insane delusion shall influence his will in disposing property and bring about a disposal of it which if the mind had been sound, would not have been made.”

46. Section 5 of the Law of Succession Act, deals with capacity to make a will, and of testation. The relevant provisions state as follows -5(1). … any person who is sound of mind and not a minor may dispose of his free property by will …(2)…(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.

47. In the instant cause the testamentary capacity of the deceased is not in issue. What is being challenged is whether the testator in this matter duly executed the will dated 29th January, 1995. It is a legal requirement that the testator must append his signature on the will with an intention of giving it effect as his last will and testament.

48. Section 11 of the Law of Succession Act states;“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."

49. There are four main requirements to the formation of a valid Will:-a.The will must have been executed with testamentary intent;b.The testator must have had testamentary capacity;c.The will must have been executed free of fraud, duress, undue influence or mistake; andd.The will must have been duly executed.

50. On one hand it has been argued that the testator herein duly executed the will dated 29th January, 1995 having written his name on said will whereas on the other hand it has been contested that the testator did not execute the will in accordance with law as the will does not bear his signature or thumb print.

51. The Will which was presented in Court has 2 pages. On second page of the said Will there are two signatures one for the Ben Kipkemboi Cheptiony and the other William Cheboswony as the person who allegedly signed the said Will as witnesses. There is nothing to show that the deceased herein executed the said will. There an initial of a name on the said page which would appear to be the deceased’s name. The 2nd Petitioner herein has called upon this Court to construe the said name as the deceased’s mark on the will. I however am unable to tell whether the said handwriting belonged to the deceased herein.

52. During cross-examination AW2 William Cheboswony conceded that he conceded that he could not remember the date when he signed the will, where is signed the will from and who were present at the time. He also told Court that he could not remember whether the will was handwritten or typed at the time of execution. He also conceded that the contents of the Will were never read to him. During cross-examination AW3 Benjamin Kipkemboi Cheptiony told Court that at time when the said Will was being signed, William Cheboswony was not present. He also told Court that he handwritten the will on behalf of the deceased. A draft of the handwritten will was never tabled before this Court. AW3 also told court that he signed the said Will on 30th January, 1995 whereas the date on the Will is 29th January, 1995. AW3 told Court that on 29th January, 1995 was the date when the deceased took the handwritten Will for typing. There are a lot of inconsistencies and contradictions surrounding the execution of the Will dated 29th January, 1995. The suspicious circumstance rule in the making of the will is clearly expounded in the case of Tobin v Ezekiel [2012] NSWCA 285; 83 NSWLR 757 where his Honour (with the concurrence of Basten and Campbell JJA) wrote the following:“… The suspicious circumstances rule does not operate at large. It operates to displace presumptions of fact in favour of those propounding [a] will. For that reason it is necessary to identify the presumption or presumptions to which particular circumstances are said to be relevant. With respect to the presumption as to knowledge and approval, those circumstances must be capable of throwing light on whether the testator knew and approved of the contents of the will. If they give rise to a doubt as to knowledge and approval, 4 those propounding the will must dispel that doubt by proving affirmatively that the testator appreciated the effect of what he or she was doing. They do not have to go further and disprove any suspicion of undue influence or fraud. Approval in this context does not include that in addition to knowing what he or she was doing, the testator executed the will in the absence of coercion and fraud. The proponents having a affirmatively established knowledge and approval, the onus of proving undue influence or fraud is on those alleging it.…”Similarly in GE Dal Pont and KF Mackie, Law of Succession (LexisNexis Butterworths, 2nd ed, 2017), paragraph [2. 29])“The presumption relating to knowledge and approval arising from a capable testator’s execution of a will does not apply if the circumstances surrounding its execution combine to excite the Court’s suspicion. While suspicion here not infrequently stems from a third party’s (alleged) wrongdoing, this is not essential; it is ‘simply a question of circumstances giving rise to a suspicion that the testator may not have known of and approved the contents of his will’. If suspicious circumstances exist, probate cannot be granted unless the suspicion is removed, by affirmative proof of the testator’s knowledge and approval. To this end, the effect of the suspicious circumstances doctrine is, it is said, ‘relatively narrow’; it does not apply, ‘at large’, it being essential to ‘identify the presumption to which particular circumstances are said to be relevant”.The parties to the will in question will agree that having canvassed the territory upon which the testamentary was made denotes suspicious circumstances sufficient enough for this court to revoke it as an instrument ultra-vires the Law of Succession Act.

53. In the circumstances, it appears that there is insufficiency on the attestation. I find that therefore the Will dated 29th January, 1995 has not met the formal requirements of Section 11 of the Law of Succession.

54. Accordingly, it my finding that:i.That the purported written will dated 29th January, 1995 is null and void ab initio for non-compliance with the law and it is hereby declared that the deceased died intestate.ii.Each party to meet their own costs of this application.

DATED, SIGNED AND DELIVERED VIA EMAIL AT ELDORET THIS 13THDAY OF JULY, 2022. ............................R. NYAKUNDIJUDGE