[2023] KEHC 19243 (KLR)

Nderitu v Nderitu (Succession Cause 27 of 2017) [2023] KEHC 19243 (KLR) (29 June 2023) (Judgment)

Neutral citation: [2023] KEHC 19243 (KLR)

Republic of Kenya

In the High Court at Nyahururu

Succession Cause 27 of 2017

CM Kariuki, J

June 29, 2023

IN THE MATTER OF THE ESTATE OF STANLEY NDERITU NGARI (DECEASED)

Between

Virginia Muthoni Nderitu

Petitioner

and

Bishop Fredrick Wang'ombe Nderitu

Objector

Judgment

1. Virginia Muthoni Nderitu, the Petitioner herein, filed for probate of the written Will with respect to the estate of Stanley Nderitu Ngari alias Stanley Ndiritu Ngari (hereinafter referred to as "the Deceased") in 2013. On May 14, 2014, the Objector herein lodged an objection and petition by way of cross-application for a grant. In the Notice of Objection against the issuance of a grant of probate in respect of the Deceased's estate to the Petitioner, the Objector averred that: -i.The interest of the said Bishop Fredrick Wang'ombe Nderitu in the estate is the whole of the Deceased's estate, and the grounds of his objections are as follows: -1. The Objector ranks in priority with the Petitioner and should share the estate equally as child of the Deceased.2. The alleged Will of the Deceased is a forgery as it left out the Objector, yet he is a child of the Deceased.3. The purported Will is, therefore, a forgery and does not belong to the Deceased.4. The Deceased's property should not be shared as per the alleged Will.

2. Contemporaneously, the Objector filed a cross-petition vide the answer to the petition by way of cross-application for a grant of representation to the estate of the Deceased of even date is made to him. The same was supported by the affidavit in support of a petition by way of cross-petition for granted deponed by the Objector on May 14, 2014.

3. Consequently, the Petitioner filed a supporting affidavit dated January 26, 2016. She deponed that: -i.They are not in dispute that the Objector is a son of the 1st wife, Elizabeth Wangari Nderitu.ii.That the Deceased herein left a valid Will but, in his wisdom, omitted the Objector's name in his list of children and beneficiaries.iii.Upon discovering the same, they approached the chief, who wrote a letter stating the name of the Deceased children, including his in the said list.iv.During her husband's lifetime, he disposed of some properties but died before the transactions were completed.v.The Deceased was also involved in a suit Nairobi HCCC No 2882 of 1998 between himself and one Ayub Wang'ondu & Another whereby the Court awarded the said Ayub with the cost of Kshs 60,000/-vi.She strongly believes that the failure to include the Objector's name in the Will was a typographical error.vii.According to the last Will of the Deceased, all houses had been allocated properties and catered for in the Will.viii.That the Will is valid to the best of her knowledge and encompasses all the ingredients of a valid Will as per the Law of Succession.ix.That the affidavit in opposition to the applicant's application has no merit and should be dismissed.

4. The Objection was canvassed by way of oral submissions.

5. PW1 Virginia Muthoni Nderitu testified that she filed for succession with a Will attached. She stated that she relied on her statement filed on January 26, 2016. PW1 averred that the Bishop can be included in the Will, although he was omitted. That he can get equal shares as the shares for the beneficiaries.

Analysis and Determination 6. I have carefully considered the Objection, the affidavit in reply, and the parties' oral submissions. The gist of the Objection is that the Objector was left out of the Deceased's Will even though he is the Deceased's son.

7. In response, the Petitioner asserted that it is not in dispute that the Objector is the Deceased's son and that although his name was omitted from the Deceased's written Will dated August 12, 2008, she strongly believes that the failure to include the Objector's name in the Will was a typographical error.

8. Further, in her oral submissions, she stated that the Bishop can be included in the Will, although he was omitted. That he can get equal shares as the shares for the beneficiaries.

9. The Objector should have given oral and/or written submissions or attended Court despite being notified of the various mention and hearing dates. He seems to have absconded his Objection as stated by the Petitioner's advocate. All the same, I will determine the same on its merits.

10. The instant succession cause relates to the estate of Stanley Nderitu Ngari alias Stanley Ndiritu Ngari (Deceased), who died on October 2, 2012. The Deceased passed away testate vide the Will dated 12 August 2012.

11. Following his demise, his 3rd wife, the Petitioner, petitioned the Court for a grant of probate. The Objector then filed an objection and cross-petition countering the same.

12. I have seen the answer and cross-petition, which attracted the Objection placed before this Court. I have thoroughly examined the Deceased's Will and find that the written Will dated 12 August 2012 is valid as per Section 11 of the Law of Succession Act.

13. However, the Objector has established his legal interest in the estate of the Deceased as a beneficiary. Further, it is apparent that he was left out of the Will despite being a son to the Deceased, a fact that the Petitioner does not dispute, and he is, therefore, a beneficiary to the estate. The provision for beneficiaries who have either been left out without any inheritance or inadequately provided for is anchored on Sections 26 and 28 of the Law of Succession Act. A testator has the power to dispose of her property as she pleases, and the Court is bound to respect those wishes as long they are not repugnant to the Law, and she does not leave out some dependants and beneficiaries.

14. Moreover, failure to make provision for a dependant by a deceased person in her Will does not invalidate the Will as the Court is empowered under Section 26 of the Law of Succession Act to make reasonable provision for the dependant. Section 28 outlines the parameters this Court should consider when making such provisions. (SeeIn re Estate of Lusila Wairu Waweru (Deceased) [2020] eKLR).

15. As per the Will, it is evident that the Deceased adequately and separately provided for each house. The Petitioner confirmed that the Objector is the Deceased' son from the first wife. Thus, the court makes the orders;

16. The court declares the Objector a rightful beneficiary of the estate and shall be included and/or counted as a unit of the first house as far as the Will is concerned.

17. That the cross-petition dated May 14, 2014 is hereby dismissed; the Objection dated May 14, 2014 is dismissed to the extent that it challenges the validity of the Deceased's Will but succeeds on the basis that the Objector is held to be a beneficiary of the estate;

18. The written Will dated August 12, 2012 is found to be valid, and the distribution of the Deceased's estate be and is hereby ordered in terms of the Deceased's Will, save that the Objector shall be counted as a beneficiary and a unit of the first house.

19. In addition, the Petitioner shall commence the process and, in any event, within the next 45 days, complete the same via an application for a grant of probate with respect to the Deceased's estate.

20. Parties to bear their costs.

DATED, SIGNED, AND DELIVERED AT NYAHURURU ON THIS 29TH DAY OF JUNE 2023. CHARLES KARIUKIJUDGE