[2025] KEHC 10231 (KLR)

Rukaria & 7 others v Rukaria (Succession Appeal E005 of 2023) [2025] KEHC 10231 (KLR) (10 July 2025) (Judgment)

Neutral citation: [2025] KEHC 10231 (KLR)

Republic of Kenya

In the High Court at Meru

Succession Appeal E005 of 2023

HM Nyaga, J

July 10, 2025

Between

Naomi Ncoga Rukaria

1st Appellant

Joyce Regeria Rukaria

2nd Appellant

Geoffrey Kithinji Rukaria alias Stephen Kinyua

3rd Appellant

Patrick Ntari Mburugu

4th Appellant

Jeniffer Wanja Kiunga

5th Appellant

Everlyn Kanana

6th Appellant

Mary E Karimi Nkamani

7th Appellant

Beatrice Gaiti

8th Appellant

and

Newton Koome Rukaria

Respondent

(Being an appeal from the Judgment of Honourable D. W. Nyambu – C.M. delivered on 8th February, 2023 in Meru Chief Magistrate Succession Cause No. 14 of 2020)

Judgment

Background 1. The deceased died on 13th December, 2014. By a petition of letters of Administration with written will filed on 30th January, 2020 Newton Koome Rukaria petitioned the Chief Magistrate’s Court at Meru for grant of letters of administration with will annexed.

2. Annexed to the Petition was a copy of the will said to have been executed by the deceased on 10th May, 2006, and made before the following witnesses:-a.Joseph Gikunda M’Imanyarab.Joseph Muriungi M’itonga

3. The said Newton Koome listed 25 beneficiaries as having survived the deceased. They are listed in the affidavit in support of the Petition at paragraph 7.

4. On 6th July, 2021, Newton Koome filed summons for confirmation of the grant with written will annexed. He listed the assets of the deceased in his affidavit.

5. On 8th November, 2021, James Kirimi Rukaris filed summons for revocation of a grant. He claimed that the Will annexed to the petition was illegally made and was false. He further averred that the deceased had prior to his death bequeathed his sons some properties, and in particular, the deceased had bequeathed him LR. Abothuguchi/Kithirine/2317.

6. Subsequently a protest was filed by the following:- Naomi Ncoga Rukaria

Joyce Regeria Rukaria

Geoffrey Kithinji Rukaria

Patrick Ntari Mburugu

Jennifer Wanja Kiunga

Evelyne Kanana

Mary E. Karimi Nkamani

Beatrice Gaiti

7. The protestors stated that the will in question was invalid as it sought to disinherit the spouse and the children of the deceased. They urged the trial court to declare the will as invalid and treat the matter as an intestate estate.

8. The objection and protest proceeded by way of viva voce evidence and in the end, the learned magistrate made the following findings:-a.That the last will of the Testator Wilfred M. Rukaria Ntari dated 10th May, 2006, is valid, authentic, genuine legal device to sufficiently form the framework for distribution of the Estate.b.That the executor of the said will shall move to distribute the estate in confirmed with the will and thereafter in constant with Section 83 of the Law of Succession Act, furnish the court with the Probate Account. To that extent, the probate grant be issued by the court forthwith.c.Leave be and is hereby granted to any aggrieved party to file an appeal in the High Court against these orders within 30 days from the date hereof.d.The summons for annulment of grant dated 4th November, 2021 be and is hereby dismissed.e.The protest filed by the Protestors herein lack merit and the same dismissed.f.Each party herein shall bear their own costs.

9. Aggrieved by the said Judgment, the protestors/appellants filed a memorandum of appeal dated 2nd March, 2023.

The Appeal 10. The memorandum of appeal listed 7 grounds namely:i.That the learned trial magistrate erred in law and in fact in failing to consider that the testator did not have the requisite sound mind while making the Will as he did not have a full recollection of all the beneficiaries to whom he was responsible for during his lifetime and had provided for.ii.That the learned trial magistrate erred in fact and in law in failing to make reasonable provisions for the appellants despite acknowledging that there were children/spouse/dependants of the estate.iii.That the learned trial magistrate erred in law inholding that the court had jurisdiction to hear and determine the Succession Cause.iv.That the learned trial magistrate erred in fact and in law holding that the will was properly executed in presence of two witnesses despite the overwhelming evidence tendered by the protestors therein.v.That the learned trial magistrate erred in fact and in law in failing to acknowledge that the appellants had been in possession of their respective portions for decades and had established their permanent residences therein.vi.That the learned trial magistrate misdirected himself by taking into consideration issues that were not pleaded and were not before the trial court for determination.vii.That the learned trial magistrate erred in law and in fact in not appreciating sufficiently or at all the evidence tendered by the appellants and their witnesses therein.

11. The appellants thus sought the following prayers: -a.The Judgment delivered by the trial court on 8th February, 2023 and subsequent orders/grant/decree beset aside and the appeal be allowed as prayed.b.A declaration that the Will was invalid and the deceased died intestate and the estate be distributed in accordance with the rules of intestacy.c.That this honourable court be pleased to make such further and other orders as it may deem just in the circumstances of the case.d.The costs of appeal be provided for.

Appellants’ submissions 12. The appellants submitted that there was no dispute that the 1st and 2nd appellants were spouses of the deceased. That it was also not disputed that the deceased had not provided for the 3rd to 8th respondents. That it was further not disputed that the deceased had bequeathed and shown the respective households their portions on the ground and the beneficiaries had established their permanent residences with their families.

13. On the validity of the will, the appellants submitted that at the time the alleged will was made, the deceased was suffering from dementia and was of advanced age. Thus, he did not have the legal capacity to make the will. Reliance was paced on Julius Kinyua Chabari – Versus – Mary Njagi (2016)eKLR.

14. The appellants further submitted that the learned magistrate erred, when she failed to make reasonable provisions for the applicants despite acknowledging that they were spouses/children/dependants of the deceased. Reliance was placed on the case of Marete – Versus – Marete & 3 others (2024) KECA 371 (KLR).

15. It was further submitted that the learned magistrate erred when she ruled that she had the jurisdiction to determine the matter, as there was no valuation report tendered to prove the value of the estate. It was submitted that the respondent had filed Miscellaneous Succession Cause No. 35 of 2017 before this court and was appointed an executor, with directions to file the probate expeditiously. That having submitted himself, to this court jurisdiction, he went ahead to file the probate in the Magistrate’s court. It is argued that by first coming to this court, then the executor had believed that the magistrate’s court had no jurisdiction.

16. It is further argued that there learned magistrate’s finding that the question of jurisdiction was an ambush was in error since that can be raised at any stage. Cited in support was the decision in Kenya Ports authority – Versus – Model Holding (EA) Limited (2017) eKLR.

17. It was further submitted that the learned magistrate misdirected herself by placing reliance on a will that had not been produced as evidence. That the will was only marked for identification (MF1-1) and was never produced. Cited to support this submissions was the case of Kenneth Mwogo Nyaga – Versus Austin Kiguta a & 2 Others (2015)eKLR.

18. Lastly, it was submitted that the trial magistrate erred in not appreciating the evidence tendered by the appellants. That there were no witnesses to the impugned will, who could shed light on whether the will was properly executed and witnessed or not. That the trial magistrate did not appreciate that the said will was drawn under suspicious circumstances.

19. The appellants thus sought an order setting aside the Judgment of the lower court and held that the deceased died intestate and his estate should be distributed accordingly.

Respondent’s submissions 20. It was submitted that this court ought to give deference to the findings of the trial court which it held and found while exercising its discretionary power donated to it by the constitution and statute, cited in support was Sonko -versus- County Assembly of Nairobi City and 11 Others Petition No. 11 (E008 of 2022).

21. Citing Mbogo -versus- Shah (1968) EA 93, the respondent argued that this court ought only to interfere with such discretion in very clear case, where the trial court misdirected itself as arrived at the wrong findings.

22. On the question of jurisdiction, the respondent referred to Section 48(1) of the Law of Succession Act which grants the magistrates court jurisdiction to hear and determine succession Causes. It was argued that no valuation report was tendered to prove the allegation that the value of the estate exceeded the jurisdiction of the lower court. That this burden lay with the appellants as set out under Sections 107 to 109 of the Evidence Act.

23. It was further submitted that the will in question was valid since the deceased had the capacity to make it. That from the evidence adduced the deceased rarely complained of illness. That it was on 9th December, 2014, that he became unwell. He was rushed to hospital, but he fell into a coma and died 4 days later. That the deceased was of sound mind at the time he made the will as he had filed a replying affidavit in Meru HC Civil Case No. 108 of 2006 on 27th November, 2006, the same year he caused the will to be made. That the appellants failed to have the signature of the deceased subjected to forensic examination.

24. It was further submitted that from the evidence the appellants had sued the deceased during his lifetime and that was the reason the deceased decided to make his last will, so as to protect his properties from alienation. That the burden thus lay on the appellants to prove that the deceased’s lacked capacity to make the will. Cited in support was the case of Re Estate of Gatuthu Njuguna (Deceased) (1998) eKLR.

25. The respondent further submitted that the will in question met the legal requirements set out under Section 11 of the Law of Succession Act, as it was duly executed before an advocate and attested by two witnesses.

26. On whether there were gifts inter vivos by the deceased during his lifetime, the respondents cited the decision on Micheni Aphaxard Nyaga and 2 others Versus – Robert Njue & 2 Others (2021) eKLR. It was argued that the appellants did not provide any evidence of such gifts inter vivos and the deceased had done nothing nor taken any step to transfer the suit land to the appellants. Also cited in support was Estate of Phyllos Muthoni M’Inoti (Deceased) 92018)eKLR and Re Estate of Chesimbili Sindani (2021) eKLR.

27. The respondent further argued that there was no reason given to revoke the grant as this was a court sanctioned process. Cited was Annastcia Ntakira – Vs- Christopher M’Mwari Anthony (2020) eKLR.

28. The respondent prayed that this appeal be dismissed with costs.

Analysis & Determination 29. Being a first appeal, it is the duty of this court to re-evaluate the evidence adduced and arrive at its own independent conclusion. This was the position in Selle and Another vs Associated Motor Boat Co. Ltd and others (1968)EA 123 where the Court of Appeal held as follows:-“An appeal to this Court from a trial by the High Court is by way of 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.’’

30. Similar Principles were set out in Abok James Odera T/A A. J. Odera and Co Advocates vs John Patrick Machira T/A Machira & Co. Advocates (2013) eKLR where the court held that:-“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and re-analyse the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.”

31. I had already given a background of this appeal so I will not rehash the evidence. I will refer to the same where necessary.

32. In my view, the issues for determination are:-a.Whether the trial court was seized of the jurisdiction to hear and determine the matter.b.Whether the Will made by the deceased is valid or not.c.Whether the will was properly presented before the trial court.d.Whether the court needs to make provisions for the dependants if they were not catered for in the wille.Who bears the costs of this appeal.

33. Depending on my findings to issues (a) to (c) above, it may not be necessary to look at issue (d).

34. Jurisdiction is everything. That phrase is known to every legal practitioner. The same emanated from the celebrated case of Owners of the Motor Vessel Lilian 'S' v. Caltex Kenya Limited (1989) KLR 1) where the Court of Appeal held as follows;“Jurisdiction is everything. Without it a court has no power to make one more step. Where a court has no jurisdiction there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction…. Where a court takes it upon itself to exercise jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given.”

35. The appellants’ point of view in that the trial court lacked the monetary Jurisdiction to handle the case.

36. A question of Jurisdiction can be raised at any point, even for the 1st time on appeal. It matters not that the same was not raised during the trial. Once raised, the court has to make a determination on the same. In Kenya Ports authority – Versus – Model Holding (EA) Limited (supra) the court held that;“We have stressed that jurisdiction is such a fundamental matter that it can be raised at any stage of the proceedings and even on appeal, though it is always prudent to raise it as soon as the occasion arises. It can be raised:“….at any time, in any manner, even for the first time on appeal, or even viva voce and indeed, even by the Court itself- provided only that where the Court raises it suo motu, parties are to be accorded an opportunity to be heard.”

37. A similar holding was made in Adero & Another V Ulinzi Sacco Society Limited [2002] 1 KLR 577, where the court stated ;“1…………..

2. The jurisdiction either exists or does not ab initio and the non constitution of the forum created by statute to adjudicate on specified disputes could not of itself have the effect of conferring jurisdiction on another forum which otherwise lacked jurisdiction.

3. Jurisdiction cannot be conferred by the consent of the parties or be assumed on the grounds that parties have acquiesced in actions which presume the existence of such jurisdiction.

4. Jurisdiction is such an important matter that it can be raised at any stage of the proceedings even on appeal.

5. Where a cause is filed in court without jurisdiction, there is no power on that court to transfer it to a court of competent jurisdiction.”

38. From the evidence, the respondent first came to this court vide the Misc. Application referred to and was granted leave to proceed to file the cause.

39. In my view, the fact that leave was granted by this court did not necessarily mean that the Respondent had to file the cause in this court. If the aggregate value of the property of the deceased was within the Chief Magistrates court’s jurisdiction, then the Respondent had the choice to move the said court. There is really nothing tendered to show that the aggregate value of the state exceeded the jurisdiction of the Chief Magistrate, which is Ksh. 20 Million.

40. Of course there are times when the issue is quite obvious, just from looking at the property’s description, but this is not the case here.

41. The appellants had the right to seek leave of the court to file valuation reports, since this was a very important question. Having not done so, the trial court was left to make an informed decision on the issue, on the basis of what was before it. Thus on this question, I am unable to hold that the learned magistrate lacked the jurisdiction to hear and determine the cause.

42. The provision relating to Wills are to be found under Section 11 of the Law of Succession Act which provides as follows:-“Written willsNo 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.”

43. The courts have repeatedly stressed on the freedom of an individual to will his/her assets as he wishes. This was the case in Elizabeth Kamere Ndolo vs- George Matatu Ndolo (1996) eKLR which was relied upon by the trial court.

44. Therefore, once there is evidence of a Will then the question that the court has to address is whether the same is valid. The criteria to be used to determine the validity of a Will were set out in Julius Kinyua Chabari – Versus – Mary Njagi (Supra) and ZN -versus- JNM (Supra).

45. The Will in question was said to have been made on 10th May 2006. The contention by the appellants was that the deceased had no capacity to make the Will as he was suffering from dementia and old age. The deceased died on 13th December, 2014 over eight (8) years after he is said to have made the Will in question. His mental state at the time of making the will was not given. Under Sections 107 to 109 of the Evidence Act, the burden was upon the parties questioning the capacity of the deceased to make the Will. The law on such issue is quite clear, as set out under Section 5 (3) and (4) of the Law of Succession Act which provides as follows;(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.

46. A look at the Will in question shows that it was attested by two witnesses, namely Joseph Gikunda M’Imanyara and Joseph Muriungi M’Itunga. It was drawn by Wilson Mburugu and Company Advocates. There is a signature of the deceased on the last page.

47. Therefore, on the face of it, the will meets the legal requirement as set out under Section 11 of the Act. To buttress this point reference is made John Wagwa & 7 Others -versus- Lee Gichugia Muthaga (2019) eKLR.

48. The appellants raised the question of the failure to produce the Will as an exhibit. That it was merely marked for identification.

49. The production of a Will is not done in the form of a normal exhibit in court. A written Will is a special document and the Probate & Administration Rules are quite clear on what is to be done in case there is such a Will. Rule 7 (5) provides as follows:-(5)Where the grant sought is one of probate of a written will or of letters of administration with the written will annexed there shall be lodged in the registry on the filing of the petition the original of the will or, if the will is alleged to have been lost or destroyed otherwise than by way of revocation or for any other reason cannot be produced, then a copy authenticated by a competent court or otherwise to the satisfaction of the court.

50. Part X of the Probation and Administration Rules then provide for the manner in which a probate cause is to proceed. Rules 50 to 52 then provide as follows.“50. Wills registersAt every registry there shall be maintained a register called the wills register for that registry in which the following information shall be recorded relating to every will of a deceased person in regard to which an application is made—(a)the name of the testator;(b)the cause number;(c)the serial number assigned to the will;(d)the date of filing of the will and of the issue of any grant;(e)where a grant has been confirmed, the date of confirmation.

51. Retention of original wills of deceasedAll original wills, or court authenticated copies thereof, of which probate or letters of administration with the will annexed have been granted by or applied for in any registry, shall be retained by and preserved among the records of that registry unless removed therefrom pursuant to regulations made under these Rules. 52. Marking of wills and furnishing of translations(1)A photocopy of every will in respect of which an application for a grant is made shall be marked by the signature of the applicant and shall also be exhibited in any affidavit or declaration which may be required under these Rules as to the validity, terms, physical condition or date of execution of the will.”

51. From the above it is clear that in a cause where a will is involved, the Will ought to dealt with as provided. That “Will” has to be in reference to the original “Will” which is primary evidence, or a counterpart of the Will as envisaged under section 65 of the Evidence Act, which defines primary evidence as follows:-65. Primary evidence.(1)Primary evidence means the document itself produced for the inspection of the court.(2)Where a document is executed in several parts, each part is primary evidence of the document.(3)Where a document is executed in counterpart each counterpart being executed by one or some of the parties only, each counterpart is primary evidence as against the parties executing it.

52. Evidently, the filing of the cause did not abide by the said rules. I have also looked at the court register of Wills. The will in question was not registered.

53. After filing the cause, the Respondent still had the opportunity to provide the original will during the hearing. He did not do so. The production of a certified copy was not explained by the Respondent. He also does not explain how he came by the Will in question. I have perused the court record in High Court Succ. Misc. Application No. 35 of 2017. The Petitioner did not avail the original Will to the court.

54. Given the circumstances, and the nature of the objections that arose, I am in agreement with the appellants that failure to produce the original Will as required was an error that was fundamental to the whole proceedings.

55. The applicants also raised the question of failure of the attesting witnesses not testifying in court. Is such failure a reason to invalidate the Will?

56. Rule 54 of P&A Rules provides for the procedure where there is a dispute. It states as follows;‘54. Evidence as to due execution of written will(1)1) Where a written will contains no attestation clause or the attestation clause is insufficient or where it appears to the court that there is some doubt about the due execution of the will, the court shall, before admitting the will to proof, require an affidavit of due execution from one or more of the attesting witnesses or, if no attesting witness is conveniently available, from any other person who was present at the time the will was executed.(2)If no affidavit can be obtained in accordance with subrule (1) the court may, if it thinks fit having regard to the desirability of protecting the interests of any person who may be prejudiced by the will, accept evidence on affidavit from any person it may think fit to show that the signature on the will is in the handwriting of the deceased, or evidence of any other matter which may raise a presumption in favour of the due execution of the will.(3)….(4)If the court, after considering the evidence—(a)is satisfied that a written will was not duly executed, it shall refuse probate and shall mark the will accordingly;(b)is doubtful whether the will was duly executed, it shall make an order for hearing and give such directions in regard thereto as it deems fit.’

57. In the instant case, the Respondent stated that one attesting witness, Joseph Mwingu was alive, but did not call him as a witness. Neither was the advocate who drew the will called to testify. His status is unknown. In The Estate of Abenge Lububi (Deceased) (2021) KEHC 873 (KLRC) the court had this to state on the need to call attesting witnesses:-“Of course, the other way of establishing that fact would have been by him calling the persons who were present at the event of the execution of the will by the deceased. Being present at the execution of the will is so that they can participate at its authentication by way of execution. More importantly, so that they, those witnessing the execution, can provide evidence and testimony, should the authenticity of the execution or the signature be called to question, of the validity of that exercise. It was incumbent on the person relying on that will to call the attesting witnesses, that is the three individuals who appended their signatures to the alleged will as witnesses to its execution by the deceased, to come and attest to the court, that they were indeed present at execution of the will, and that they saw the deceased sign the will, and that the signature on the document, purported to be his signature, was in fact appended there by him, and it was his signature. See Elizabeth Kamene Ndolo vs. George Matata Ndolo [1996] eKLR (Gicheru, Omolo & Tunoi JJA). The attesting witnesses are not present at the making or execution of the will for the sake of it, to lend authenticity to the document by merely signing it. No. Their more critical role is to provide evidence in court, in the event the execution of the document is contested, like in this cause. Their role does not end with them witnessing the execution of the will by the maker, on the day the will is made, for the more important role comes later, when the maker dies, and the authenticity of the execution of the will is called to question. They are expected to attend court, to apprise the court on what exactly happened on the day it is alleged that the deceased signed the document placed before the court as his alleged will. See In Re Estate of Chandrakant Shamjibhai Gheewala (Deceased) [2006] eKLR (Koome J) and In re Estate of Julius Mimano (Deceased) [2019] eKLR (Musyoka J). Of course, the law does not require that the attesting witnesses be persons who were known to the family, or even trusted friends of the deceased, they could be perfect strangers to the family. The only requirement is that they would be available at the critical time when they are required.”

58. In my view, the importance of the attesting witnesses, or in this case the advocate who drew the will to testify in court cannot be overemphasized.

59. The court is aware that there may be situations where such witnesses cannot be availed, such as where they are deceased, thus unavailable. In such a case, the court looks at the available evidence to make a determination. That is not the case here.

60. In my view, given the circumstances of this case, the failure to call the attesting witness, who is alive, or the advocate, leads to the conclusion that the proof of the will was not properly done.

61. On the basis of the grounds set out hereinabove, I am unable to uphold the Will as tendered in court. The circumstances of the case called for a through examination of the original will to verify its authenticity. Failure by the Respondent to avail the original will and the available witnesses leads to one logical conclusion, that the Will was wrongly admitted by the trial court.

62. Having found the above, should the court then treat the cause as intestate as argued by the Appellants?

63. In my view, that option is only available once the will has been properly dealt with by the court. That will be dealt with by the court seized of the cause after hearing the evidence.

64. From the foregoing and as I had stated earlier, there is no need to go to the other issues raised in the appeal, specifically on the question of the provisions for the spouses and beneficiaries.

65. In the end the, following orders to issue:-i.The Judgment of the Lower Court in Chief Magistrates Court Succession Cause No. 14 of 2020 is set aside for failure to have the will properly filed and/or produced.ii.All the consequential orders of the Judgment are also set aside.iii.The grant issued to the Respondent on 23rd July, 2020 is also revoked/annulled.iv.The Respondent is at liberty to apply for a fresh grant of Probate, in a court of competent jurisdiction, and comply with the rules on filing of wills, within 60 days from the date of this ruling.v.In default of (iv) above, any party entitled to benefit from the estate may petition for letters of administration.vi.Each party will bear their own costs.

DATED, DELIVERED AND SIGNED AT MERU THIS 10TH DAY OF JULY, 2025HON. H. M. NYAGAJUDGE