https://new.kenyalaw.org/akn/ke/judgment/keca/2026/936

Simeon v Potishoi & another (Civil Appeal E102 of 2021) [2026] KECA 936 (KLR) (15 May 2026) (Judgment) Neutral citation: [2026] KECA 936 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Civil Appeal E102 of 2021 MS Asike-Makhandia, EC Mwita & B Ongaya, JJA May 15, 2026 Between Ololmetetek Karuna Simeon Appellant and Mary Potishoi 1st Respondent Leshan Metetek 2nd Respondent (Being an Appeal from the Ruling and Order of the High Court of Kenya at Kisii, (Ougo, J) dated 4th May 2020 in Kisii HCC Misc. Application No. 203 of 2013 Miscellaneous Application 203 of 2013 ) Judgment 1.This appeal concerns the estate of Kidogo Lolmetetek Olormor, “the deceased”, who died on 26th June 2009 leaving behind land parcel LR Transmara/Poroko/4, “the suit property”, measuring approximately 9.8 hectares as his estate. The respondents, Mary Potishoi and Leshan Metetek, “the 1st and 2nd respondents respectively”, who were wife and son of the deceased jointly filed a petition in the Principal Magistrate’s Court at Kilgoris for a grant of letters of administration intestate for the estate of the deceased. The petition was duly processed and a grant was issued which was subsequently confirmed, resulting in the transfer of the suit property by way of transmission into the name of the 1st respondent. 2.Through a miscellaneous application, the appellant, Ololmetetek Karuna Simeon, moved the High Court of Kenya at Kisii, “the trial court”, pursuant to sections 48 and 76 of the Law of Succession Act and rules 44, 49, 59, 63 and 73 of the Probate and Administration Rules seeking the revocation of the confirmed grant aforesaid, rectification of the register in respect of the suit property to revert it back to the name of the deceased and the rendering of the accounts in respect of the subject estate by the respondents on the grounds that it was obtained fraudulently and through concealment of material facts by the respondents. 3.The application was supported by a detailed affidavit of the appellant. He deposed that he was the deceased’s son, that his late mother, Kipeni Ololmetetek was the only lawful wife of the deceased, and that the 1st respondent was not a widow of the deceased but the wife of his cousin, Paul Nkoyon and therefore not entitled to petition for the grant of letters of administration intestate in priority to him nor benefit from the estate of the deceased. That the deceased had left behind a written will in which he had indicated how his estate should be shared out. That the respondents had concealed this fact as well as the true value of the suit property which exceeded the pecuniary jurisdiction of the Principal Magistrate’s Court at Kilgoris. For all these reasons, the appellant prayed for the revocation of the grant aforesaid. 4.The respondents opposed the application. Through the 1st respondent's affidavit, they asserted that the 1st respondent married the deceased under Maasai customary law, and as a result bore him four children: Leshan, Meiteikuiru, Kakenya and Kinyamal. She was therefore a wife to the deceased and entitled to petition for the grant of letters of administration intestate of the deceased’s estate. That the Principal Magistrate’s Court at Kilgoris, would have but did not reject their petition on account of pecuniary jurisdiction and were therefore not to blame. 5.The trial court directed that the application be deposed by way of viva voce evidence. The appellant called Samuel Munjet Sumpel (PW2) and Lekilabu Olotalam (PW3), as witnesses who all confirmed his filial relationship to the deceased and denied 1st respondent’s marital claim to the deceased. 6.In response, the 1st respondent testified and confirmed her marital status to the deceased under Maasai customary law. She then called Samson Ntalyio (DW2), their former location chief, who confirmed writing the letter supporting the respondents’ petition and in which he recognized her as the deceased’s widow; Samuel Laulo Ole Kisorio (DW3), her brother who testified to the customary marriage he witnessed between the 1st respondent and the deceased and Benjamin Lemso Ntuntai (DW4), a clan elder and cousin to the 1st respondent who witnessed the Maasai customary law marriage ceremony. 7.In his submissions in support of the application, counsel for the appellant urged that the deceased had executed a valid will and therefore the estate could not have been administered intestate, that according to the will the 1st respondent was not a beneficiary and that she had not notified the lawful beneficiaries of the estate of the deceased of the succession cause she had initiated in the Principal Magistrate’s Court at Kilgoris and that the trial court lacked pecuniary jurisdiction to entertain the cause since the monetary value of the suit property exceeded Kshs. 100,000. According to the appellant all these facts amounted to fraud and concealment of material facts which entitles a court to revoke a grant. 8.In response, the respondents argued that when they petitioned for the grant of letters of administration intestate in the Principal Magistrate’s Court at Kilgoris, it was not rejected on account of pecuniary jurisdiction, that the appellant did not have a valuation report of the suit property to suggest that it was valued in excess of Kshs. 100,000/=, that the court could not therefore guess the monetary value of the suit property, that the 1st respondent had filed the succession cause as the wife of the deceased courtesy of the letter from their local Chief DW2, which confirmed her as the lawful wife of the deceased and finally, that the alleged will could not have been genuine as it had locked out the children of the deceased with the 1st respondent. 9.The trial court after re-evaluating the evidence revoked the grant by holding that the acreage and value of the suit property placed it beyond the monetary jurisdiction of the Principal Magistrate’s Court at Kilgoris. On the question of beneficiaries, the trial court found on the balance of probabilities that the appellant was indeed the deceased’s son, while the 1st respondent was the deceased’s widow, and her children presumptively his unless disproved by DNA. On the will, the trial court held that although the deceased appeared to have executed a testamentary document, it was invalid under section 11 of the Law of Succession Act for want of attestation by two competent witnesses, since only one witness, Lekodi John Nkoyon, signed it. Consequently, the trial court allowed the application, revoked the grant and its place appointed the appellant and 1st respondent as joint administrators of the deceased’s estate. The trial court went ahead and cancelled the title in respect of the suit property issued to the 1st respondent and reverted it back to the estate of the deceased. 10.It is against this ruling and order that the appellant now comes before this court on appeal, faulting the trial court for: finding that the 1st respondent was a widow of the deceased without credible evidence, failing to reconcile contradictions in the testimonies regarding the deceased’s marital status and her children, making precipitate findings on the paternity of the 1st respondent’s children while acknowledging the need for DNA verification, and for misapplying section 11 of the Law of Succession Act in declaring the deceased’s will invalid, and that undue emphasis was placed on form rather than substance contrary to article 159 of the Constitution. He maintained that the trial court failed to properly analyze the evidence and submissions, thereby occasioning a miscarriage of justice. Eventually, he prayed that the appeal be allowed, the ruling and order of the trial court be set aside, the will be declared valid, and the estate of the deceased be administered in accordance with that testamentary disposition. 11.When the appeal was called out for hearing, Mr. Mulisa, learned counsel appeared for the appellant while Mr. Anyona, learned counsel appeared for the respondents. Counsel opted to rely solely on their respective written submissions that they had filed and exchanged. 12.Counsel for the appellant submitted that the trial court erred in law and fact by recognizing the 1st respondent as a widow of the deceased without credible proof of a valid Maasai customary law marriage. He emphasized that no family member, neighbour, or documentary evidence was tendered in evidence to substantiate the alleged union. In support thereof counsel cited Njoki v Mathara & Others - Civil Appeal No. 71 of 1989 (UR) where the court held that the onus of proving a customary marriage lies on the party claiming it and the standard is that of balance of probabilities. He further relied on Mary Wanjiru Githatu v Esther Wanjiru Kiarie - Civil Appeal No. 20 of 2009, where the court stressed that customary marriages must meet essential cultural ingredients, and on Gituanja v Gituanja [1983] KLR 575 and Kimani v Gikanga [1965] EA 735, in which it was held that existence of a customary marriage is a matter of fact to be proved through evidence. 13.On paternity, Counsel submitted that the 1st respondent failed to produce birth certificates or conduct DNA tests to prove that her children were sired by the deceased, yet the court recognized them as such. He cited Kenya Ports Authority v Modern Holdings [EA] Ltd [2017] eKLR on the duty of courts to give cogent reasons when preferring one set of evidence over the other another. 14.On the validity of the will, counsel submitted that the deceased executed a valid will witnessed by both Lekodi John Nkoyon and Oguttu-Mboya Advocate, thereby satisfying the requirements of section 11 of the Law of Succession Act. He faulted the trial court for disregarding the advocate’s attestation, citing Re Estate of Murimi Kennedy Njogu (Deceased) [2016] eKLR, which outlined the threshold for a valid testamentary capacity, and Banks v Goodfellow [1870] LR 5 QB 549, as adopted in Vaghella v Vaghella [1999] EA 351, on the essentials of testamentary capacity. He also relied on Re Estate of Wilfred Koinange Gathiomi (Deceased) [2020] eKLR and Ngengi Muigai & Another v Peter Nyoike Muigai & 4 Others [2018] eKLR, in affirming the presumption of soundness of mind of the testator at the time of execution of the will unless proved otherwise. 15.Counsel further cited Ndirangu v Ndirangu Civil Appeal 141 of 2019 [2022] KECA 1296 (KLR), where the court upheld the validity of a will properly attested by two witnesses, and Sisilia Mwikali Kirwa v HC & Another [2015] eKLR, which held that where a deceased left a valid will, the estate cannot be administered as intestate. He submitted that the trial court erred by placing undue emphasis on form rather than substance, contrary to article 159 of the Constitution, and by failing to give effect to the deceased’s testamentary wishes. In conclusion, counsel urged this court to allow the appeal as prayed in the memorandum of appeal. 16.In opposing the appeal, counsel for the respondents submitted that the trial court correctly found that both the appellant and the respondents were closely related to the deceased, whose estate was in contestation. He emphasized that the 1st respondent was properly recognized as the widow of the deceased, and consequently her children were rightly treated as beneficiaries. He argued that the evidence of DW2 to that effect was credible and unchallenged, and the respondent’s brother confirmed the marriage of the 1st respondent and the deceased under Maasai customary law. He maintained that the appellant’s allegations that the 1st respondent was married to one, Paul Nkoyon were unsupported by any credible evidence. 17.On the validity of the will, counsel submitted that the trial court correctly held that it was invalid, as it was only signed by one witness contrary to section 11(c) of the Law of Succession Act, and that the advocate who attested could not be treated as a witness. He further contended that the appellant failed to prove that the 1st respondent’s children were not sired by the deceased, noting that no DNA test report or birth certificates were produced to rebut the DW2’s letter listing them as beneficiaries of the estate of the deceased. He submitted that the appellant’s testimony was inconsistent, particularly regarding burial sites and land parcels, which cast doubt on his claim of being the deceased’s son. 18.In conclusion, counsel submitted that the trial court properly evaluated the evidence and reached the correct determination by appointing both the appellant and the 1st respondent as joint administrators of the estate of the deceased. In the ultimate, counsel urged this court to dismiss the appeal with costs. 19.We have anxiously considered the record, the grounds in support of the appeal, the rival submissions of counsel, and the law. We are conscious and cognizant of our jurisdiction when dealing with a first appeal. Our primary duty is to re-evaluate, re-assess, and re-analyze the entire evidence on record, both on points of law and fact so as to reach our own independent conclusions. We must review the trial court’s decision, dealing with the issues raised, rather than just checking for errors. See Gitobu Imanyara & 2 Others v Attorney General [2016] eKLR. 20.Having said as such, we are satisfied that the issues for determination in this appeal are fourfold; whether the trial court erred in: recognizing the 1st respondent as the widow of the deceased and therefore a beneficiary of the estate of the deceased alongside her children; its treatment of the will and declaring it invalid under section 11 of the Act; holding that the Principal Magistrate’s Court at Kilgoris lacked pecuniary jurisdiction to deal with the cause; and, whether the trial court erred in law and fact by failing to properly analyze the evidence and submissions of the parties. 21.However, before we delve into the merits of the substantive appeal, there is a peripheral issue that we have agonized over. Was the trial court properly seized of this cause? This is because there were already proceedings with regard to the estate of the deceased in the Principal Magistrate’s Court at Kilgoris. So that if the appellant wanted to revoke the confirmed grant as he sought in the trial court, the proper forum should have been in that court but not to initiate a fresh cause in the trial court. That notwithstanding, we note that he initiated the proceedings by way of a miscellaneous application, perhaps invoking the trial court’s inherent, original or supervisory jurisdiction. Whether that was proper, perhaps is a matter of another day. Suffice to say that we have raised the issue suo moto and since we were not addressed substantively on it by any of the parties, we will leave it at that. 22.On the first issue, the law is settled that the burden of proving a customary marriage lies on the party asserting it. Section 107 of the Evidence Act places the burden of proof on the person who desires the court to give judgment as to any legal right dependent on the existence of facts. This Court in Njoki vs Mathara & Others (supra), underscored that, customary marriages must be proved to the standard of balance of probabilities. In the present case, the trial Court accepted the testimonies of DW2 and relatives of the 1st respondent as sufficient to establish the customary marriage. While the appellant argued that this was speculative, we note that the trial court weighed the evidence and found it persuasive. Still in considering this issue we revert to the reasoning of the Supreme Court in Mary Nyambura Kangara alias Mary Nyambura Paul v Paul Ogari Mayaka & Initiative for Strategic Litigation in Africa, (ISLA) (Amicus Curiae) (SC, Petition No. 9 of 2021), where it cautioned that courts must not lightly presume the existence of a marriage from mere cohabitation, but must insist on clear proof of customary rites or long cohabitation meeting the threshold of law. 23.This principle compliments the holding in Gituanja v Gituanja (supra), where this court reiterated that the existence of a customary marriage is a matter of fact, and unless the evidence is wholly incredible, an appellate court should not interfere with the trial court’s findings. Taken together, these authorities determine that while courts must demand credible proof of customary marriage, once such evidence is found persuasive and not wholly incredible, an appellate court’s intervention is unwarranted. The trial court found the evidence irresistible. Who are we to say otherwise? Accordingly, we are satisfied that there was no error in the trial court’s finding that the 1st respondent was a wife of the deceased under Maasai customary law and she was therefore entitled to inherit the estate of the deceased alongside their children. 24.On the second issue, section 11 of the Act requires that a written will be attested by two or more competent witnesses. The said section 11 sets out the requirements of a valid written will 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." 25.In the context of this appeal, the trial court held that the will was invalid because it was witnessed by only one person. Though the appellant argued that the advocate present and who attested to the only signature should be treated as a competent witness to the will, section 11(c) of the Act however, requires attestation by at least two competent witnesses, each of whom must sign in the presence of the testator. While the law does not exclude advocates from acting as witnesses, the critical question is whether the advocate actually signed the will in acknowledgment of the testator’s signature. 26.Where an advocate merely drafts or certifies the will without expressly signing as a witness, courts have consistently held that this does not amount to attestation. In Ndirangu v Ndirangu (supra), this court held that the requirement of two witnesses is mandatory, and in In re Estate of Gatuthu Njuguna (Deceased) [1998] eKLR, the court underscored that compliance with statutory formalities as essential to the validity of the will. Applying these principles, although an advocate can in law be a competent witness, in this case the advocate was the drafter of the will and his stamp was affixed in the segment “in the presence of” rather than under the witness section. This did not satisfy the statutory requirement of attestation which is a mandatory requirement. Therefore, the appellant’s argument that the trial court preferred form over substance is obviously misplaced. Accordingly, the first appellate court was correct in finding that the will was invalid for want of proper attestation under section 11(c) of the Act. 27.On jurisdiction, the first appellate court correctly found that the Principal Magistrate’s Court at Kilgoris lacked pecuniary jurisdiction to entertain the cause, as the value of the estate exceeded Kshs. 100,000, which was the statutory limit under section 48 of the Act at the time for the said court. The suit property was 9.8 hectares which translates to roughly 24 acres. It does not take rocket science to conclude that such acreage is not worthy a paltry Kshs.100,000/=. We may point out at this juncture that where a subordinate court acts without jurisdiction, its orders are null and void ab initio, as reiterated in Owners of Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1, in which it was held that jurisdiction is everything and without it a court must down its tools. This is consistent with the principle that proceedings conducted without jurisdiction cannot be cured by consent or acquiescence, and the trial court was therefore right to annul the grant and order that the cause proceeds afresh under its own jurisdiction. 28.On the fourth and last issue, the appellant argued that the trial court failed to properly analyze his evidence and submissions. However, we note that the court considered in detail the testimonies of both sides, respective submissions, framed issues for determination, determined the issues framed and gave reason(s) for the determination, addressed the validity of the will, the question of beneficiaries, and jurisdiction. In our view, this complaint is bereft of merit. In our view, the trial court did a sterling job. 29.In conclusion, we are satisfied that the appeal is bereft of merit and is accordingly dismissed with costs to the respondents. DATED AND DELIVERED AT KISUMU THIS 15TH DAY OF MAY, 2026.ASIKE-MAKHANDIA………………………………………JUDGE OF APPEALC. M. MWITA…………………………………………JUDGE OF APPEALB. ONGAYA………………………………………JUDGE OF APPEALI certify that this is a true copy of the original.Signed.DEPUTY REGISTRAR