https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8149

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI FAMILY DIVISION SUCCESSION CAUSE NO. 1621 OF 2016 IN THE MATTER OF THE ESTATE OF MARIA MUTHONI ALIAS MARY MUTHONI MUCHIRI (DECEASED) VERONICAH NJERI MWANGI ................ APPLICANT/PROTESTOR VERSUS PATRICK MAINA MWANGI ALIAS PATRICK MAINA MUCHERU .................................... RESPONDENT JUDGEMENT 1. This judgement relates to the application dated 19th July, 2017 filed by the Applicant, Veronicah Njeri Mwangi, seeking for ORDERS THAT: 1. Spent. 2. The grant of probate with the annexed Will made to Patrick Maina Mwangi alias Patrick Maina Mucheru by this Honourable Court on 21st June, 2017 be revoked. SUCCESSION CAUSE NO. 1621 OF 2016 JUDGEMENT Page 1 of 19 po/ hkc 2. The Respondent filed his replying affidavit opposing the objection proceedings and the Court subsequently directed the matter to proceed by way of oral evidence. 3. The first witness was Chief Inspector Raphael Nampijja, a document examiner attached to the Directorate of Criminal Investigations (DCI). He testified that he had been assigned to investigate allegations concerning the authenticity of a will purportedly executed by the deceased, Maria Muthoni. The investigation stemmed from a complaint lodged by a family member who questioned the genuineness of the will. 4. Upon receiving instructions, he obtained a copy of the disputed will and gathered several documents known to have been authored or signed by the deceased for purposes of comparison. These documents included lease agreements, bank records, affidavits, motor vehicle-related documents and other documents bearing the deceased’s acknowledged signatures. 5. The witness explained that he prepared an exhibit memo and forwarded both the disputed will and the known specimen documents to the DCI Forensic Document Examination Unit for scientific analysis. The exhibits were formally received and assigned for examination. The investigation was thereafter classified as a forgery inquiry under the relevant provisions of the Penal Code. 6. The witness further testified that the forensic examination was undertaken by a qualified document examiner. SUCCESSION CAUSE NO. 1621 OF 2016 JUDGEMENT Page 2 of 19 po/ hkc Following the analysis, a forensic report was prepared and returned to the investigating office. The report concluded that the signatures appearing on the disputed will differed materially from the known signatures of the deceased contained in the specimen documents submitted for comparison. The findings indicated that the questioned signatures were not made by the same person who executed the known documents. 7. The witness produced several documents as exhibits. Theseincluded correspondence forwarding the matter for forensic examination, the exhibit memo, the forensic report itself and the bundle of known handwriting and signature specimens identified as Exhibits B1 to B6. 8. The specimen documents consisted of agreements, account records, affidavits, lease agreements and other documents previously executed by the deceased over different periods. According to the witness, these documents were selected because they contained undisputed signatures of the deceased and were suitable for comparative forensic analysis. 9. During cross-examination, counsel questioned the witness regarding the preparation of the report and the role of the forensic examiner. It was suggested that the report had been prepared by another officer within the DCI forensic laboratory. The witness acknowledged that the forensic analysis had indeed been conducted by a document examiner who specialized in questioned document SUCCESSION CAUSE NO. 1621 OF 2016 JUDGEMENT Page 3 of 19 po/ hkc examinations and that the report had been forwarded through the proper investigative channels. He maintained, however, that the documents had been lawfully collected, transmitted for examination and returned with the findings relied upon during the investigation. 10. The witness also explained the qualifications and expertise of forensic document examiners within the DCI laboratory, noting that they undergo specialized training in handwriting and signature comparison and routinely conduct forensic examinations for investigative and Court purposes. He reiterated that the report concluded that the signatures on the alleged Will did not match the known signatures of the deceased. 11. Pw2 Bernard Cheruiyot also a document examiner with seven years’ experience testified and produced his report. He explained the process in which he did the forensic analysis with the aid of the other known signatures of the deceased and came to a conclusion that the signature in the will was made by a different person. 12. When cross examined, he said that he had used a copy of the Will when making the comparisons and that the same had been certified by the Court’s registry. 13. Patrick Maina Mwangi, a son of the deceased and the Executor named in the Will, testified that the deceased was his mother and that she died on 5th November, 2011. He explained that the deceased was survived by several children, including the Objector and other SUCCESSION CAUSE NO. 1621 OF 2016 JUDGEMENT Page 4 of 19 po/ hkc beneficiaries of the estate. According to him, the deceased had executed a valid written will dated 8th April, 2008. He maintained that the properties listed in the Will belonged to the deceased and had been deliberately allocated by her among her beneficiaries. 14. He stated that the Will accurately reflected the deceased’s wishes and that she personally discussed aspects of the distribution with family members. He denied allegations that the Will was fabricated or forged and maintained that the deceased freely and voluntarily executed it. 15. According to his testimony, the deceased was mentally alert and fully aware of the nature and extent of her assets when she made the Will. He further stated that the beneficiaries who received property under the will were identified by the deceased herself and that the testamentary dispositions reflected her considered decisions regarding her estate. 16. He also emphasized that the deceased had ownership of the properties referred to in the Will and that there was nothing unusual about the manner in which she distributed them. He maintained that the Will was prepared lawfully and that its contents corresponded with the deceased’s intentions. 17. The second defence witness, Lucy Wanjiru Wanyoike, testified that she had worked for many years in the law firm of Kamere & Company Advocates and was familiar with the deceased. She stated that she knew the deceased SUCCESSION CAUSE NO. 1621 OF 2016 JUDGEMENT Page 5 of 19 po/ hkc as a client of the firm and had interacted with her on several occasions. According to her evidence, she was present when the deceased executed the Will dated 8th April, 2008. 18. She recalled that the Will was prepared following instructions provided by the deceased. She stated that the deceased reviewed the contents of the Will and confirmed that it accurately reflected her wishes. The deceased then signed the document in the presence of the attesting witnesses. Lucy testified that she personally witnessed the execution of the Will and that the deceased appeared to understand the nature and effect of the document she was signing. 19. She further stated that the deceased was of sound mind at the time and acted voluntarily without coercion or undue influence. According to her testimony, the deceased expressly indicated how she wished her assets to be distributed among her children and beneficiaries. Lucy maintained that all the properties referred to in the Will were identified by the deceased herself and that the instructions regarding distribution came directly from her. 20. Defence witness Simon Kamere an advocate with 46 years standing testified that he prepared the Will on behalf of the deceased who had been his long-standing client and witnessed her sign in his presents. 21. He further stated that it was not the first Will the deceased had prepared and that the rest of the Wills she had SUCCESSION CAUSE NO. 1621 OF 2016 JUDGEMENT Page 6 of 19 po/ hkc cancelled. Further that the deceased had distributed the estate in the manner she wanted and that in all the eleven meetings the Executor had with the rest of the beneficiaries nobody including the Objector had raised any objections. 22. Through the evidence of its witnesses, the defence sought to demonstrate that the Will dated 8th April, 2008 was genuine, that it was prepared by advocates acting on the deceased’s instructions and that it was duly executed before attesting witnesses. The defence maintained that the deceased possessed the requisite testamentary capacity, understood the contents of the will and voluntarily signed it. The defence therefore urged the Court to reject allegations of forgery and uphold the validity of the will and the grant of probate founded upon it. SUBMISSIONS 23. The Applicant has filed written submissions dated 10th December, 2025. She submits that the application is founded on allegations that the grant was obtained through a forged will, rendering the entire probate process defective, fraudulent and legally unsustainable. 24. The Applicant recounts the procedural history of the matter, noting that the Respondent opposed the application through a replying affidavit while another beneficiary, Margaret Wanjiku Ndung’u, filed grounds of SUCCESSION CAUSE NO. 1621 OF 2016 JUDGEMENT Page 7 of 19 po/ hkc opposition. The Applicant subsequently filed further and supplementary affidavits. The Court directed that the application be heard through viva voce evidence. 25. During the hearing, the Applicant called two police officers who testified as expert witnesses, while the Respondent called himself, Advocate Simon Kamere and Lucy Wanjiru Wanyoike. The Court later declined the Applicant’s request to testify as an additional witness. 26. The Applicant identifies two principal issues for determination: whether the statutory threshold for revocation has been met and whether the grant should consequently be revoked. She relies on Section 76 of the Law of Succession Act, which empowers the Court to revoke a grant where the proceedings were substantively defective, where the grant was obtained fraudulently through false statements or concealment of material facts or where it was procured through untrue allegations of facts essential to the grant. 27. The Applicant further cites judicial authority affirming that the burden of proving such grounds lies upon the party seeking revocation. According to the Applicant, the core dispute concerns the authenticity of the deceased’s Will. She contends that the Will relied upon by the Respondent is a forgery. 28. In support of this position, she refers to jurisprudence emphasizing that allegations of forgery constitute serious accusations carrying a higher evidential burden than SUCCESSION CAUSE NO. 1621 OF 2016 JUDGEMENT Page 8 of 19 po/ hkc ordinary civil claims. The Applicant submits that she has discharged this burden through expert evidence presented at trial. 29. The Applicant states that two senior police officers testified as expert witnesses and produced forensic reports after examining the signatures appearing on the disputed Will. According to their findings, the signatures attributed to the deceased did not originate from her. The experts therefore concluded that the deceased did not sign the will and that the document was a forgery. 30. The Applicant emphasizes that these expert opinions were based on established forensic methodologies and remained uncontroverted throughout the proceedings. She argues that the Respondent failed to present any expert evidence to challenge or rebut the forensic findings. Consequently, the expert reports remain the only technical evidence before the Court on the authenticity of the deceased’s signature. 31. The Applicant submits that although expert evidence is not automatically conclusive, it is highly persuasive where it is credible, methodical and unchallenged. In her view, the forensic evidence conclusively demonstrates that the deceased did not execute the purported Will. 32. The Applicant further attacks the credibility of the attesting witnesses who testified in support of the will. She notes that the two witnesses said to have observed the deceased execute the will were Advocate Simon Kamere and his SUCCESSION CAUSE NO. 1621 OF 2016 JUDGEMENT Page 9 of 19 po/ hkc office secretary, Lucy Wanjiru Wanyoike. She argues that both witnesses were conflicted and lacked the independence required for reliable testimony. 33. Simon Kamere acted not only as an attesting witness but also as counsel for the Respondent in the proceedings. Because Lucy Wanjiru was his employee and subordinate, the Applicant contends that her testimony was similarly compromised. For that reason, she urges the Court to treat their evidence with caution and to accord it little evidential weight. 34. Based on the forensic evidence and the alleged unreliability of the attesting witnesses, the Applicant submits that the Court should find that the will was forged. She argues that since the will formed the sole foundation upon which the grant of probate was issued, a finding of forgery inevitably means that the grant was obtained through defective proceedings and false representations to the Court. 35. According to the Applicant, the grant therefore lacks any lawful basis and cannot stand. The Applicant contends that the Respondent presented the disputed Will as a valid testamentary instrument, thereby inducing the Court to issue a grant of probate that would otherwise not have been granted. She maintains that the probate proceedings were fundamentally tainted by fraud and misrepresentation because they were premised on a forged document. Consequently, the grant issued on 21st SUCCESSION CAUSE NO. 1621 OF 2016 JUDGEMENT Page 10 of 19 po/ hkc June, 2017 should be revoked under Section 76 of the Law of Succession Act. 36. In conclusion, the Applicant submits that she has successfully established the statutory grounds for revocation. She urges the Court to accept the expert evidence demonstrating that the Will was not signed by the deceased, find that the probate proceedings were defective and fraudulent, revoke the Grant of Probate with written Will annexed issued to the Respondent, and allow the application dated 19th July, 2017 with costs. 37. The Respondent has not filed written submissions. ANALYSIS AND DETERMINATION 38. The application before the Court seeks revocation of the Grant of Probate with written will annexed issued to Patrick Maina Mwangi alias Patrick Maina Mucheru on 21st June, 2017. The Applicant's principal contention is that the grant was founded upon a forged will dated 8th April, 2008 and was therefore obtained fraudulently and through defective proceedings. 39. The following issues arise for determination: a) Whether the application is barred by the Applicant's failure to file a formal objection to the petition for probate. b) Whether the Applicant has established grounds for revocation under Section 76 of the Law of Succession Act. SUCCESSION CAUSE NO. 1621 OF 2016 JUDGEMENT Page 11 of 19 po/ hkc c) Whether the will dated 8th April, 2008 was validly executed by the deceased. d) Whether the grant of probate issued on 21st June, 2017 should be revoked. 40. In re Estate of Joshua Githiari Kibui (Deceased) [2021] eKLR the Court stated as follows: “18. For avoidance of doubt, Section 76 of the Law of Succession Act states as follows: a. “76. Revocation or annulment of Grant: b. A 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— 20. Further, In the Matter of the Estate of L A K – (Deceased) [2014] eKLR the Court held that; (a) Revocation of grants in governed by Section 76 of the Law of Succession Act. The relevant SUCCESSION CAUSE NO. 1621 OF 2016 JUDGEMENT Page 12 of 19 po/ hkc portions of Section 76 are paragraphs (a), (b) and (c) since the issues raised relate to the process of the making of a grant. A grant may be revoked where the proceedings leading up to its making were defective, or were attended by fraud and concealment of important matter, or was obtained by an untrue allegation of a fact essential to the point…. 32. The Court in the case of Jamleck Maina Njoroge v Mary Wanjiru Mwangi (2015) eKLR at paragraph 11 of its ruling in revoking a grant reiterated the grounds upon which a grant can be revoked. It stated as follows:- a. “11. The circumstances that can lead to the revocation of grant have been set out in Section 76 Law of Succession. For a grant to be revoked either on the Application of an interested party or on the Court’s own motion there must be evidence that the proceedings to obtain the grant were defective in substance, or that the grant was obtained fraudulently by making of false statement, or by concealment of something material to the case, or that the grant was obtained by means of untrue allegations of facts essential in point of law.” 33. In the case of Matheka and Another vs Matheka [2005] 2KLR 455 the Court of Appeal laid down the following guiding principles as to revocation of grants. (a) “i. A grant may be revoked either by SUCCESSION CAUSE NO. 1621 OF 2016 JUDGEMENT Page 13 of 19 po/ hkc application by an interested party or by the Court on its own motion. (b) ii. Even when revocation is by the Court upon its own motion, there must be evidence that the proceedings to obtain the grant were defective in substance, or that the grant was obtained fraudulently by the making of a false statement or by concealment of something material to the case or that the grant was obtained by means of untrue allegation of facts essential in point of law or that the person named in the grant has failed to apply for confirmation or to proceed diligently with the administration of the estate.” Whether Failure to File an Objection Bars the Application 41. The Respondent and Margaret Wanjiku Ndung'u argued that the Applicant was aware of the probate proceedings, that the petition was duly gazetted, and that she failed to lodge an objection within the prescribed period. They contend that the application is therefore an afterthought intended to delay the administration of the estate. 42. While it is true that the Applicant did not file a formal objection to the probate proceedings, Section 76 of the Law of Succession Act expressly empowers the Court to revoke a grant at any time where the grant was obtained through fraud, concealment of material facts, defective proceedings or untrue allegations of facts essential to the grant. The remedy of revocation is therefore not SUCCESSION CAUSE NO. 1621 OF 2016 JUDGEMENT Page 14 of 19 po/ hkc extinguished merely because a party failed to object during gazettement. A grant founded on fraud or falsehood cannot be insulated from challenge by procedural timelines. 43. The Applicant has offered an explanation that the forensic report, upon which her challenge is principally founded, was only communicated after the grant had already been issued. Whether that explanation is ultimately persuasive is a matter of evidentiary weight, but it cannot be said that the application is incompetent solely because no objection was filed earlier. 44. I therefore find that the application is properly before the Court. Whether Grounds for Revocation Have Been Established: 45. The Court's jurisdiction is anchored in Section 76 of the Law of Succession Act. The Applicant bears the burden of proving that the proceedings were defective, fraudulent or founded upon an untrue allegation of a fact essential to the issuance of the grant. The fact alleged to be false in this case is the existence of a valid Will executed by the deceased. 46. The Applicant's challenge is not directed at the administration of the estate but at the very foundation of the probate proceedings. If the Will is found to be a forgery, then the grant cannot stand because it was issued on the assumption that the deceased died testate. SUCCESSION CAUSE NO. 1621 OF 2016 JUDGEMENT Page 15 of 19 po/ hkc Conversely, if the Will is found to be genuine, the application must fail. The determination therefore turns on the authenticity of the will. Whether the Will Was Validly Executed: 47. The Applicant relied heavily on forensic evidence from the Directorate of Criminal Investigations. The evidence presented through Chief Inspector Raphael Nampijja established that known specimen signatures of the deceased were compared with the signatures appearing on the disputed Will. The forensic examiner concluded that the questioned signatures were not made by the same person who executed the specimen documents. The expert evidence therefore pointed to the conclusion that the deceased did not sign the Will. 48. The significance of this evidence cannot be understated. Handwriting and signature comparison is a specialized scientific discipline. Where expert evidence is properly admitted, relevant and unshaken in cross-examination, the Court is entitled to attach substantial weight to it. The Respondent did not call a competing forensic expert to challenge or rebut the conclusions contained in the forensic report. Consequently, the forensic findings remained the only expert evidence before the Court on the authenticity of the deceased's signature. 49. On the other hand, the Respondent relied on the testimony of attesting witnesses, including Advocate Simon Kamere and Lucy Wanjiru Wanyoike, who testified that the SUCCESSION CAUSE NO. 1621 OF 2016 JUDGEMENT Page 16 of 19 po/ hkc deceased executed the will in their presence and that she appeared to understand its contents and effect. 50. However, this Court must reconcile the direct eyewitness testimony with the scientific evidence. While attestation evidence is ordinarily persuasive, it is not infallible. Human recollection may fade over time and witnesses may honestly but mistakenly identify signatures or events occurring many years earlier. Scientific examination of signatures, particularly where based on numerous contemporaneous specimens, may in appropriate circumstances outweigh oral recollection. 51. I have perused the Court file and the original Will is on record. There is no evidence that the parties or the forensic experts in particular asked for the same and were denied. All that am driving at is why did they use a photocopy of the Will yet the original was available. 52. In any case the maker of the report produced by Pw1 was not called to testify and defend his report. Pw1 simply relied on his report and definitely he could not answer much of the issues raised against it. 53. At the same time, I note that the documents used by the two experts in comparison were executed several years before the Will was prepared. For example, exhibit III (a) is an agreement dated 3rd August 1988, III(a) is an agreement dated 31st August 1994, III(c) is dated 23rd April 1991, and an affidavit sworn on 27th August 19085. SUCCESSION CAUSE NO. 1621 OF 2016 JUDGEMENT Page 17 of 19 po/ hkc 54. The Will dated 8th April 2008 was made several years after the specimen documents relied on by the experts. There is no document which was at least made by the deceased and signed some few years or months before she died. 55. The certificate of death shows that she died on 5th November 2012 aged 91 years. Obviously, the deceased was elderly by the time she prepared the Will but there was no evidence at all exhibited that she was mentally impaired or in any manner unable to prepared the said will. 56. The experts relied on documents which she signed while she was energetic in my view and full of mental capacity and I doubt if the signatures would be hundred percent similar with the one in the will. The Court has always taken judicial notice of slight disparities of the handwriting of any person in the cause of their lives and in this case, I doubt whether the signature made in 1985 for instance will not vary with that of 2012. 57. In the premises I will not entirely agree with what the experts found but taken cumulatively and in particular the evidence of Dw2 and 3 there is a high probability that the deceased executed the will. No evidence was tendered to challenge counsel Kamere in particular that he was not the deceased advocate or at all. 58. It is equally noted that the Objector despite her protest was provided for in the impugned Will a fact that she has not denied. SUCCESSION CAUSE NO. 1621 OF 2016 JUDGEMENT Page 18 of 19 po/ hkc 59. In the premises I do not find any merit in the objection proceedings and the same is hereby dismissed with no order as to costs. 60. Having dismissed the application and so as to save on the Courts time the application for confirmation of grant dated 12th March 2019 is hereby allowed as prayed. Dated signed and delivered via video link at Nairobi this 11th day of June 2026. H K CHEMITEI JUDGE, FCIArb. SUCCESSION CAUSE NO. 1621 OF 2016 JUDGEMENT Page 19 of 19 po/ hkc