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Magembe & 2 others v Magembe & 2 others (Civil Appeal 174 of 2019) [2026] KECA 1442 (KLR) (10 July 2026) (Judgment) Neutral citation: [2026] KECA 1442 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Civil Appeal 174 of 2019 HA Omondi, LK Kimaru & JM Ngugi, JJA July 10, 2026 Between Elias Onsarigo Magembe 1st Appellant Wilfred Nyambariga Magembe 2nd Appellant John Nyangaresi Magembe 3rd Appellant and Cosmas Mokua Magembe 1st Respondent Vincent Ongangi 2nd Respondent Isabellah Moraa 3rd Respondent (Being an appeal from the Ruling and order of the High Court of Kenya at Kisii (D.S. Majanja J.) dated 2nd July, 2019 in HC. Succ. Cause No. 4 of 2018) Judgment 1.This is a first appeal against the ruling of the High Court of Kenya at Kisii (Majanja J.), delivered on 2nd July, 2019, relating to the Estate of Stephen Magembe Gwaka (the deceased). 2.A brief background of the case is that the deceased died on 7th September, 2017. He left a will dated 1st March, 1996. Vide a petition lodged on 27th April, 2018, the deceased’s sons, Cosmas Mokua Magembe (1st respondent) and John Nyangaresi (3rd Appellant) petitioned the probate court for grant of letters of administration with written will annexed, which was duly issued. The deceased’s widow, Isabellah Moraa (2nd respondent) made an application to be enjoined in the proceedings as a co-petitioner. The application was allowed. Consequently, the court appointed the 3rd appellant, 1st respondent and 2nd respondent as executors of the will of the deceased. 3.On 29th January, 2019, the 1st and 2nd appellants, being sons of the deceased, filed a notice of objection challenging the validity of the deceased’s will. The appellants challenged the validity of the will on the grounds that it was fraudulent, mutilated, and deliberately crafted to disinherit certain beneficiaries of the deceased’s estate. They contended that they are sons of the deceased’s first wife, Paskalia Kemunto Magembe, and were unaware that the deceased had purportedly left a written will. They further deponed that their mother died on 12th October 1979, approximately seventeen years before the alleged will was written. In their view, a testator cannot validly bequeath property to a person who had predeceased him, and consequently, the purported will was null and void. 4.The appellants further averred that Enock Nyankieya Mugara, who purportedly attested the will was not a qualified advocate at the time, and that the will was not witnessed by two competent witnesses as required by law, rendering it invalid and unenforceable. They contended that the deceased’s 2nd wife, Flora Magembe, predeceased him, having died in 2013. They therefore questioned the validity of any testamentary provisions purportedly made in her favour. It was their argument that some of the properties bequeathed to the 2nd respondent, the deceased’s third wife, had been acquired during the lifetime of the deceased’s first wife and long before the 2nd respondent married the deceased. They maintained that it was inconceivable that the deceased would deliberately disinherit his first wife and her children by allocating such properties exclusively to his third wife, and urged that this state of affairs cast serious doubt on the authenticity and validity of the purported will. They maintained that they were entitled to benefit from the estate of the deceased under Section 40 of the Law of Succession Act. 5.In response, the 2nd respondent filed an affidavit sworn on 10th April, 2019. She averred that there was no legal obligation requiring the deceased to disclose the existence of his will to the objectors during his lifetime. She further maintained that Enock Nyankieya Mugara was a duly qualified and competent advocate at the material time and that the will had been executed and attested in accordance with the law. The 2nd respondent explained that the deceased’s intention was to distribute his estate among the three houses through his respective wives and that, notwithstanding the fact that some of the wives had pre-deceased him, the testamentary dispositions reflected that intention. She contended that the allegations of fraud, mutilation, and disinheritance were speculative and unsupported by evidence. According to her, the deceased was not able to amend the will to account for subsequent events, including the death of some beneficiaries, due to deteriorating health before his demise. 6.The objection was canvassed by way of viva voce evidence. The 1st appellant testified as PW1. It was his evidence that the deceased had three wives namely Paskealia Kemunto Magembe (deceased), Florence Moraa Magembe (deceased) and Isabella Moraa Magembe. He stated that other than the 2nd respondent, no one in the family had information that the deceased had left behind a will. He testified that the purported will did not list all of the deceased’s properties. He stated that some of the properties left out included a shop and posho mill situated at Igena Market, four grade cows, bank accounts, insurance cover, and motor vehicle registration number KBL 486U. It was his testimony that land parcel No. Bassi/Boitangare/1075, bequeathed to the 2nd respondent, was purchased by the deceased’s first wife, long before the deceased married the 2nd respondent. He maintained that the purported will was not written by the deceased, and that the deceased would have informed him of the existence of any such will as the eldest son. The 2nd appellant (PW2) supported the evidence adduced by the 1st appellant. 7.The 2nd respondent gave evidence as DW1. She reiterated the averments made in her affidavit in reply to the objection, and testified that the will was valid, and that it was read in the presence of all the deceased’s children, including the objectors. She stated that land parcel No.1075 was given to her by the deceased during his lifetime, and that none of the children objected to it then. 8.Upon considering the parties’ respective arguments and the evidence placed before the court, the learned Judge, in a ruling delivered on 2nd July 2019, dismissed the objection by the appellants. The learned Judge held that Section 40 of the Law of Succession Act, which the objectors had relied upon, governs the distribution of estates in cases of intestacy and was therefore inapplicable since the deceased had died testate. The court further found that the deceased enjoyed testamentary freedom and was under no legal obligation to dispose of all his assets in a will. Any property not specifically bequeathed therein would subsequently devolve in accordance with Part V of the Law of Succession Act. 9.The learned Judge also found that the objectors had failed to adduce evidence demonstrating that the will was fraudulent, mutilated, or otherwise invalid. He observed that any dependant who considered himself inadequately provided for was at liberty to seek reasonable provision under Part III of the Act. On the question of execution, the court was satisfied that the will had been properly attested to by two competent witnesses and noted that the law does not require a will to be drawn by an advocate. Finally, the learned Judge held that, upon a proper construction of the will, the deceased’s intention was to benefit the beneficiaries in a distribution format of the three houses that comprised his three wives, and that such intention was sufficiently discernible from the testamentary instrument. 10.Aggrieved by this decision, the appellants lodged an appeal before this court premised on six (6) grounds of appeal. The appellants faulted the learned Judge for dismissing their objection to the deceased’s will. In essence, they contend that the Judge erred in law and fact in finding that the will was valid and that it had not lapsed. They further argued that the Judge wrongly concluded that the objectors had failed to establish grounds for their objection, failed to properly evaluate and analyze the evidence placed before the court, and consequently arrived at an erroneous decision. Lastly, the appellants maintained that the learned Judge misapprehended and failed to properly apply the law governing testate succession and the requirements attendant thereto. 11.The appeal was canvassed by way of written submissions. Mr. Nyambati, learned counsel appeared for the appellants. It was his submission that the learned Judge erred in upholding the will dated 1st March, 1996, despite substantial defects affecting both its form and substance. He argued that the will did not represent the true testamentary intentions of the deceased and was instead a fraudulent and mutilated document designed to disinherit the children of the deceased’s first house. 12.It was submitted on behalf of the appellants that the will was not properly executed and attested as required under Section 11 of the Law of Succession Act. Counsel pointed to alterations on the face of the document, particularly the cancellation of the name of one purported attesting witness and its replacement with another name without any countersignature by the testator. He argued that these alterations cast doubt on the authenticity of the attestation and the due execution of the will. In his view, once doubt as to execution was raised, the respondents ought to have called the attesting witnesses or otherwise provided proof of execution, which they failed to do. 13.Counsel for the appellants further argued that the deceased could not validly bequeath property to a person who had pre- deceased him. He maintained that the purported bequest to the deceased’s first wife, Paskalia Moraa Magembe, who died in 1979, was void ab initio and demonstrated that the document was fundamentally flawed. He further argued that the bequest made to the deceased’s second wife, Florence Magembe, lapsed upon her death in 2013, prior to the death of the testator, and in the absence of a codicil or substitute beneficiary, the affected properties ought to have devolved to the surviving beneficiaries under the rules of intestate succession. 14.Additionally, the counsel asserted that the circumstances surrounding the making of the will raised serious doubt as to its validity. He submitted that the 2nd respondent exerted undue influence over the deceased and stood to benefit disproportionately from the impugned will. He argued that the deceased was at the time vulnerable due to age and ill health, and that the surrounding circumstances, coupled with the alleged defects in execution and the inclusion of deceased beneficiaries, rendered the will invalid. He therefore urged the Court to allow the appeal, set aside the ruling of the High Court, invalidate the will, and order distribution of the estate in accordance with the law governing intestate succession. 15.In rebuttal, counsel for the 2nd respondent, Mr. Ochwangi, submitted that the appellants failed to discharge the burden of proof that the impugned will was fraudulent, mutilated, or otherwise invalid. He maintained that the will satisfied the requirements of Sections 5 and 11 of the Law of Succession Act, having been executed by a competent testator, voluntarily made, and properly attested to by two witnesses. According to counsel, mere allegations of fraud and defectiveness could not invalidate a will in the absence of cogent evidence. 16.Counsel for the 2nd respondent further argued that the appellants’ complaint of disinheritance was premature. He pointed out that the administration and distribution of the estate had not been finalized and that the appellants, being children of the deceased, remained beneficiaries of his estate. According to him, no evidence had been presented to demonstrate that the appellants had been definitively excluded from inheritance from the estate. He further submitted that, as the deceased’s surviving spouse, the 2nd respondent ranked in priority over the appellants in matters relating to the administration of the estate and was therefore properly involved in the petition proceedings. 17.On the issue of attestation, counsel for the 2nd respondent maintained that the will was duly executed and witnessed in compliance with Section 11 of the Law of Succession Act. He further submitted that the advocate who prepared the will was qualified to practice law and was therefore competent to draw the testamentary instrument. Regarding the bequests made to the deceased’s first and second wives who had predeceased him, counsel argued that the learned Judge correctly applied the doctrine of lapse under Section 23 of the Law of Succession Act. He submitted that the gifts to the deceased wives simply lapsed and reverted to the estate without affecting the validity of the will itself. He averred that the lapse of specific gifts did not render the entire will invalid or convert the estate into one of intestacy. 18.In conclusion, counsel argued that the learned Judge properly evaluated the evidence and correctly upheld the validity of the will. He therefore urged the Court to find that the appeal lacked merit and to dismiss it with costs 19.This being a first appeal, our duty was well stated in Selle and Another v. Associated Motor Boat Co. Ltd [1968] E.A. 123, where the court observed as follows:“An appeal to this Court from a trial by the High Court is by way of a retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions, though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular this Court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif v Ali Mhamed Sholan, (1955) E.A.C.A. 270)”. 20.We have considered the foregoing principles, the grounds of appeal, the record of appeal as well as the rival submissions by parties to the appeal. The gravamen of the appeal, in our view, is whether the learned Judge erred in upholding the validity of the deceased’s will dated 1st March 1996. The appellants challenged the will on grounds that it was fraudulent, mutilated, improperly attested, and incapable of taking effect because some of the named beneficiaries predeceased the testator. They further contended that the deceased lacked capacity to make the will and that the will was designed to disinherit the first house. 21.The starting point is that the law recognizes the freedom of a person of sound mind to dispose of his property by will. Section 5(1) of the Law of Succession Act provides that any person who is of sound mind and not a minor may dispose of all or any of his free property by will. The burden of proving that a will is invalid lies upon the person asserting such invalidity. (See decision of this Court in Benson Mungai Nganga v Eliud Chege Wallace [2013] KECA 362 (KLR)). 22.Section 5(3) of the Law of Succession Act presumes that a person making a will is of sound mind, and the burden of proving the contrary lies on the person alleging that he was not of sound mind. This was also the holding of this Court in the case of Ngengi Muigai & another v Peter Nyoike Muigai & 4 others [2018] KECA 475 (KLR) where the Court expressed itself as follows:“Construing the issue of capacity, Githinji, J. in the case of In Re Estate of Gatuthu Njuguna (Deceased) [1998] eKLR stated:'As regards the testators mental and physical capacity to make the will, the law presumes that the testator was of sound mind and the burden of proof that the testator was not of sound mind is upon the person alleging lack of sound mind, in this case, the applicant.”” 23.Allegations of fraud, coercion, undue influence, mistake, mutilation, or lack of testamentary capacity are serious allegations which must be established by evidence. The appellants bore that burden of proof. It is our considered view that beyond bare assertions, no evidence was tendered before the probate court by the appellants to demonstrate that the deceased lacked testamentary capacity, or that the will was procured by fraud. The deceased executed the will in 1996 and lived for close to twenty years thereafter before his death. No evidence was presented that during that period that he was alive he ever repudiated the will or disputed its contents. 24.With regard to the appellants’ contention that the deceased acted under the undue influence of the 2nd respondent, we find that no evidence was tendered before the Court to that effect. In Ngengi Muigai & another v Peter Nyoike Muigai (supra) this Court further observed as follows:“The respondents here sought to impeach the Will on account of undue influence which is some form of coercion. In the case of Mwathi vs Mwathi [1996] eKLR, the Court held that:“Undue influence occurs when a testator is coerced into making a Will or some part of it that he does not want to make. Undue influence is proved if it can be shown that the testator was induced or coerced into making dispositions that he did not really intend to make.”” 25.In this case, no witness testified as to any mental infirmity on the part of the deceased, nor was any evidence placed before the probate court demonstrating coercion, manipulation or domination of the deceased's free will by the 2nd respondent. The allegations remained bare assertions in the absence of proof. 26.The appellants also challenged the validity of the will on the basis that it was not properly attested. Section 11 of the Law of Succession Act provides as follows:“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.” 27.The deceased’s will on record bears the signatures of two attesting witnesses, namely Abel Kerimo and Thomas Moywaywa. Although the appellants made issue with regards to the cancellation of the name Isaac Oseko and its replacement with Thomas Moywaywa, they did not adduce any evidence to demonstrate that the signatures appearing against the names of the attesting witnesses were not genuine, or that the witnesses were not competent persons to attest to the Will within the meaning of Section 11 of the Act. We agree that these circumstances were capable of raising suspicion. However, suspicion alone is not proof of invalidity. The alteration, while inelegant, does not without more demonstrate post-execution tampering. No evidence was led to show when the alteration occurred or that it occurred after execution. 28.Equally unpersuasive is the argument that the Will was invalid because it was not disclosed to the appellants during the deceased’s lifetime. We know of no provision of law imposing upon a testator an obligation to inform his beneficiaries, prospective beneficiaries, or family members of the existence or contents of his will. A will is inherently a private testamentary instrument and its validity is not dependent on prior disclosure to or knowledge of family members. The fact that the appellants were unaware of the existence of the will therefore cannot be a ground for impeaching it. 29.The appellants also argued that the will was invalid because it purported to benefit the deceased's first wife, who had died in 1979, and the second wife, who died in 2013. We hold the view that the fact that a beneficiary predeceases a testator does not, without more, invalidate the entire will. At most, it raises the question whether the particular gift bequeathed to the said beneficiary lapses. The learned Judge correctly appreciated the distinction between the validity of the will and the efficacy of a particular testamentary disposition. The invalidity of a gift, if established, does not necessarily render the entire testamentary instrument void. 30.Section 23 of the Law of Succession Act and the Second Schedule thereof provides that no gift or disposition shall confer any benefit on any person who predeceases the testator, and where a gift or disposition fails on this account it is said to "lapse". The exceptions to this rule are provided under the Second Schedule as follows:2.“Exceptions1.Unless a contrary intention appears in the will, there shall be no lapse in either of the following cases-a.where the gift or disposition is made in discharge of a moral obligation recognized by the testator; orb.where the gift or disposition is in favour of any child or other issue of the testator for any estate or interest not determinable at or before the death of such child or other issue and such child or other issue, as the case may be, leaves issue surviving the testator;but in either such case the gift or disposition shall take effect as if the deceased legatee had died immediately after the testator.” 31.It is our considered view that in construing the will, we are satisfied, as was the learned Judge, that the deceased intended to benefit his three houses as a basis of distribution through his respective wives whether dead or alive. That intention is discernible from the language and structure of the testamentary instrument. The naming of the wives was not an arbitrary exercise but rather reflected the deceased's chosen mode of providing for the different family units. While the deceased specifically identified and named his wives as the recipients of particular properties, he did not individually name any of his children. Instead, he made only general references to the children of each house in the special clause. In our view, this drafting choice was neither accidental nor inconsequential. It demonstrated that the deceased regarded the wives as the representatives of their respective houses and intended the benefits conferred upon them to accrue to the advantage of the children within those houses. 32.In that regard, the circumstances fall within the contemplation of Section 23 of the Law of Succession Act and the exceptions to the doctrine of lapse contained in the Second Schedule. 33.Even assuming, for purposes of argument, that some of the gifts made to the deceased wives lapsed upon their deaths, the consequence would not be the invalidation of the entire will. Rather, the consequence would merely be that the affected properties fall into the residue of the estate or devolve to the beneficiaries in accordance with the applicable intestacy provisions of the Law of Succession Act. 34.As regards the complaint that certain assets were omitted from the will, the learned Judge correctly held that a testator is under no obligation to dispose of all his property by will. Testamentary freedom includes the freedom to dispose of some assets and not others. In some cases, property may be acquired after making of a will. The question before the court in such cases is whether the will disposed of the whole estate or left a residue undisposed. We hold the view that any property not effectively disposed of by the will does not render the will invalid; rather, such property devolves in accordance with the provisions governing intestate succession under Part V of the Law of Succession Act. 35.Finally, we agree with the learned Judge that the appellants' grievance concerning alleged disinheritance was premature. The objection proceedings before the High Court concerned the validity of the will, not the ultimate distribution of the estate. The will provided for all the three houses of the deceased. To the extent that the appellants consider themselves inadequately provided for, the Law of Succession Act affords them an avenue for relief through an application for reasonable provision under Part III of the Act. 36.Accordingly, we find no basis to interfere with the learned Judge's conclusion that the will dated 1st March 1996 is valid. The appeal is therefore dismissed. 37.The matter is remitted back to the High Court for the hearing and determination on issues relating to the distribution and administration of the estate in accordance with the Law of Succession Act. 38.Given the nature of the dispute, which involves members of the same family, we make no order as to costs. DATED AND DELIVERED AT KISUMU THIS 10TH DAY OF JULY, 2026.H.A. OMONDI.....................................JUDGE OF APPEALL. KIMARU....................................JUDGE OF APPEALJOEL NGUGI....................................JUDGE OF APPEALI certify that this is a true copy of original.SignedDeputy Registrar