1. Fitzval Remedios Santana de Souza, a retired lawyer and a political activist of note in Kenya’s history, died on 23rd March 2020 in London of the frailty of old age and vascular Parkinsonism dementia. I shall hereafter refer to him as the “deceased”. According to Mr Khamis Mwangemi, the Deputy County Commissioner of Mombasa Sub County, the deceased was survived by his widow Romola Amelia de Souza, daughters, Veena Carmen de Souza and Maya Helen de Souza, and sons, Mark Viren de Souza and Roy Sunil de Souza.
2. The deceased died testate, having executed a will dated 6th May 2013 and two codicils dated 19th March and 27th November 2015. In the said will, he appointed his wife, Romola Amelia de Souza and daughters, Veena Carmen de Souza and Maya Helen de Souza, as executors and trustees of the said last will and testament.
3. In paragraph 23 of the will, the testator stated that:-
“I hereby suggest that any dispute shall be referred to and or be given for arbitration by the executors/trustees or be an independent party acceptable to both sides. This is Mr Ziman Coelho–Periera, former Advocate General of Goa or Mr Zezito Albuquerque, former Chief Engineer of Goa.”
4. Further, in paragraph 26, the testator wrote that:-
“The reason I am so reluctant to have continued conflict or litigation in Goa is that the cases usually take twenty or thirty years to conclude, by which time the property will have been grabbed by squatters and or the building will have collapsed or be in ruins as will be the case with family ties.”
5. It is common ground that Romola Amelia de Souza and Maya Helen de Souza were unhappy with the bequests made to them. Consequently, Veen Carmen de Souza, relying on the provision of paragraph 24 of the deceased’s will, sought to have them removed as executors and for Mark Viren de Souza to be appointed in their stead.
6. The said paragraph 24 of the will provides that:-
“I hereby instruct and direct my executors/trustees that if any one my children or any other person challenges my will or me personally, for any reason whatsoever, I instruct my Executors/Trustees to disregard any instructions or provision giving that person any right to my property, movable or immovable. And if any of my Executors/Trustees refuses to follow my direction or instructions, then she should resign or be removed as my Executor/Trustee and should be replaced by my other son, Mark Viren de Souza. Should he decline, then the remaining two shall remain as Executors/Trustees. I have tried my very best to be as equal and fair as I can be. It is known that any two people can disagree on the exact value of any two plots in any property.”
7. The petition for grant of probate of the written will of the deceased is dated 1st December 2023. The same was filed by Veena Carmen de Souza and Mark Viren de Souza. The executors identified the heirs and gave a full inventory of his assets in the affidavit in support of the Petition sworn before a notary public in London on 1st December 2023. The petition was expressed as being in respect of the Kenyan estate of the deceased.
8. The Petition was gazetted on 29th December 2023, vide Gazette Notice No 17696, dated 30th November 2023. There being no objection, the grant of probate of the written will of the deceased was issued on 1st February 2024 to Veena Carmen de Souza (hereafter “Veena”) and Mark Viren de Souza (hereafter “Mark”).
9. Vide an application dated 19th March 2024, Romola Amelia de Souza (hereafter “Romola”) and Maya Helen de Souza (hereafter “Maya) sought to have the grant issued on 1st February 2024 revoked. This application has not been heard to date.
10. The Petitioners filed an application dated 5th April 2023 seeking to have the application dated 19th March 2024 heard through viva voce evidence. The said application was allowed by consent in terms of prayer 2 thereof, with no orders as to costs being made.
11. Vide a summons dated 30th October 2024, Roy Sunil de Souza (hereafter “Roy” or the “Applicant”) filed an application through his counsel on record seeking the following prayer:-
“All disputes between the beneficiaries herein with regard to the estate of the deceased, together with those contained in the summons for revocation of grant dated 19th March 2024 be referred to arbitration in accordance with Clause 23 of the will of the deceased.”
12. Roy’s main ground is that the will of the deceased has an arbitration clause and that protracted litigation will have a negative effect on the family as a whole, as the parties are a mother and her children.
13. The Petitioners field ground of opposition dated 5th November 2024, denying that the matter is arbitrable. It was averred that a will is a testamentary intent and not a contract or agreement between the parties and cannot bind third parties who did not execute the will.
14. It was further urged that there was no arbitration agreement nor a dispute capable of being arbitrated. The Petitioners stated that in any case, reference to arbitration in the will was a suggestion and not a mandate. Lastly, they averred that succession matters are not arbitrable.
15. I have considered the parties' pleadings, the documents attached, and their written and oral submissions. The issues for determination by the Court are whether probate proceedings are arbitrable and if this matter should be stayed pending the hearing and determination of the intended arbitral proceedings in Goa.
16. To determine the foregoing questions, I must look at the provisions of the Law of Succession Act on what law applies to succession. Section 4 of the said Act provides that:-
“(1) Except as otherwise expressly provided in this Act or by any other written law—
(a) succession to immovable property in Kenya of a deceased person shall be regulated by the law of Kenya, whatever the domicil of that person at the time of his death;
(b) succession to the movable property of a deceased person shall be regulated by the law of the country of the domicil of that person at the time of his death;
(2) A person who immediately before his death was ordinarily resident in Kenya shall, in the absence of proof of domicil elsewhere, be presumed to have been domiciled in Kenya at the date of death.”
17. Paragraph 1 of the Petition for probate of the written will of the deceased gives his domicil as Muthaiga, Nairobi. In the affidavit in support of the Petition for probate written will, it is averred that the executors are seeking to administer the Kenyan assets of the deceased.
18. The foregoing is buttressed by the fact that the list of assets in paragraph 7 of the said affidavit lists down the Kenyan assets of the deceased only. No mention whatsoever of assets in other jurisdictions is made. It would appear to me, therefore, that the properties of the deceased in other jurisdictions will be subject to separate proceedings. In the circumstances, I am unable to agree with the apprehension expressed by Roy’s advocate, Mr Cecil Miller, that a conflict of laws will arise.
19. My understanding of the conflict between the beneficiaries of the deceased's estate is that it is mainly in relation to the devolution of the Muthaiga property. What Romola, Maya and Roy feel is that it should be available to all the beneficiaries. Since the said property is immovable, the law governing its devolution is the Kenyan law of succession.
20. This is so because the testator was domiciled in Kenya. In the last will and testament, the testator was quite categorical that he was domiciled in Kenya and stated in paragraph 2 that:-
“ I declare that I am domiciled in the Republic of Kenya and the laws of the Republic of Kenya shall apply to this my will. The laws of the Republic of Kenya do not recognize the concept of properties held in “community” and so all my rights are held as provided by “separation”. Please see paragraph Number 21 below.”
21. Are succession issues arbitrable? The Petitioner submits, relying on the decision of Tuiyott, J (as he then was) in Gerick Kenya Ltd vs Honda Motorcycle Kenya Ltd ( 2019) eKLR, that they are not as they are rights in rem.
22. It is necessary that the reasoning of the learned Judge in the above decision be put in its proper context. He stated in the relevant part of his ruling that:-
“15. This court has familiarized itself with the decision in Ayyasamy (supra) and finds that the rationale why certain disputes must be considered as non-arbitrable is found in the decision of Booz Allen & Hamilla Inc –vs- SBI Home Finance Limited and others 2011 5 SCC 532 cited in the said decision. The Court held:-
22. Arbitral tribunals are private fora chosen voluntarily by the parties to the dispute, to adjudicate their disputes in place of courts and tribunals which are public fora constituted under the laws of the country. Every civil or commercial dispute, either contractual or non-contractual, which can be decided by a court, is in principle capable of being adjudicated and resolved by arbitration unless the jurisdiction of arbitral tribunals is excluded either expressly or by necessary implication. Adjudication of certain categories of proceedings are reserved by the Legislature exclusively for public fora as a matter of public policy. Certain other categories of cases, though not expressly reserved for adjudication by a public fora (courts and Tribunals), may by necessary implication stand excluded from the purview of private fora. Consequently, where the cause/dispute is inarbitrable, the court where a suit is pending, will refuse to refer the parties to arbitration, under section 8 of the Act, even if the parties might have agreed upon arbitration as the forum for settlement of such disputes. The well recognized examples of non-arbitrable disputes are : (i) disputes relating to rights and liabilities which give rise to or arise out of criminal offences; (ii) matrimonial disputes relating to divorce, judicial separation, restitution of conjugal rights, child custody; (iii) guardianship matters; (iv) insolvency and winding up matters;
(v) testamentary matters (grant of probate, letters of administration and succession certificate); and (vi) eviction or tenancy matters governed by special statutes where the tenant enjoys statutory protection against eviction and only the specified courts are conferred jurisdiction to grant eviction or decide the disputes.
23. It may be noticed that the cases referred to above relate to actions in rem. A right in rem is a right exercisable against the world at large, as contrasted from a right in personam which is an interest protected solely against specific individuals. Actions in personam refer to actions determining the rights and interests of the parties themselves in the subject matter of the case, whereas actions in rem refer to actions determining the title to property and the rights of the parties, not merely among themselves but also against all persons at any time claiming an interest in that property.
Correspondingly, judgment in personam refers to a judgment against a person as distinguished from a judgment against a thing, right or status and Judgment in rem refers to a judgment that determines the status or condition of property which operates directly on the property itself. (Vide: Black's Law Dictionary). Generally and traditionally all disputes relating to rights in personam are considered to be amenable to arbitration; and all disputes relating to rights in rem are required to be adjudicated by courts and public tribunals, being unsuited for private arbitration. This is not however a rigid or inflexible rule. Disputes relating to sub-ordinate rights in personam arising from rights in rem have always been considered to be arbitrable.’’ (emphasis added).
23. From the foregoing it is evident that the Court found that whereas rights in rem are not generally arbitrable, there are exceptions, such as that relating to “subordinate rights in personam arising from rights in rem.”
24. Constitution of Kenya, 2010 provides as follows in Article 159(2)(c):-
“(c) alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause (3)”
25. Kenyan Courts have held, in light of the foregoing provision of the Constitution and legal framework that family disputes can be arbitrated. The Court of Appeal in TSJ vs SASR [2019] eKLR held in paragraph 34 that:-
34. The same holds true today. Moreover, in light of the current constitutional and legislative framework, it cannot be said that the use of arbitration in the sphere of personal law disputes is either against the law or against public policy. The converse is indeed true. We are unable to conclude, as the Judge did, that personal law disputes fall exclusively within the domain of the courts to resolve. To borrow the words of Stewart E. Sterk, Associate Professor of Law, Benjamin N. Cardozo School of Law, in his article published in Cardozo Law Review, Volume 2, page 481 under the title, Enforceability of Agreements to Arbitrate: An examination of the public policy defense, we are in an era where “arbitration is no longer an unwelcome stepchild in the courts”. We are in an age where, “Judicial jealousy and mistrust of the arbitration process have been replaced by an era in which arbitration is embraced as an effective and efficient mechanism for resolving disputes”.
35. It is not apparent why, despite reference having been made by counsel to the decision of the Court in case of Nurani vs. Nurani, the learned Judge gave it a wide berth. In our view, despite the fact that it was decided long before the 2010 Constitution, it represents the state to the law. It is our view therefore, and we hold, that there is nothing in the Arbitration Act that would prevent disputes “of a personal nature”, as the learned Judge put it, being resolved under the framework of that Act.”
26. Having said that, arbitration is a consensual process. Parties must have agreed in writing to have their matter resolved by arbitration. A dispute must exist, which is to be resolved by arbitration.
27. I agree with the Petitioners' submissions that a will is not a contract but a unilateral declaration of intent. I agree with the finding of Judge Edward A. Jerejian, quoted In the matter of the Estate of Samuel P. Hekemian, Deceased, No. P-479- 21 (N.J. Super. Feb. 7, 2022), whereby he start that:-
“Here, there is a lack of mutual assent regarding the Article Seventeenth arbitration clause. The LWT is a statement of testamentary intent, not an instrument that reflects a consensual understanding between parties. In short, a will is not a contract, nor is it an agreement as defined in Rachal. No court in New Jersey has ruled that a will is an agreement between the testator and their beneficiaries for the purposes of arbitration provisions because there lacks a consensual understanding between parties in the will context where only one party has expressed an intent to arbitrate. . . .
Therefore, on basic contract principles, the lack of mutual assent to the provision renders the provision unenforceable and [p]laintiff cannot be compelled to arbitrate. “
28. Thus, for this matter to be arbitrated, it would be necessary for the parties to enter into an arbitration agreement. There is no such agreement at the moment.
29. Even if I were wrong, it does not seem to me as though there is a requirement for arbitration in the will of the deceased. What the deceased did, probably in recognition of the consensual nature of arbitration, was to suggest that any dispute be arbitrated. The suggestion left the beneficiaries with options to follow or to disregard what was suggested.
30. In any case, even if there were a requirement for arbitration which bound the parties, it would appear to me that the dispute would be on whether the 2nd Petitioner was validly appointed as an executor of the will. The jurisdiction under section 76 of the Law of Succession Act is only exercisable by this court and not by an arbitral tribunal.
31. In the circumstance I am unable to agree with the submissions of the Applicant’s counsel that this matter be referred to arbitration.
32. Having found as above, it is not necessary for me to consider whether these proceedings should be stayed. Since referral to arbitration has been denied, it follows that a stay for purposes of allowing arbitration proceedings to be conducted cannot be granted.
33. From the foregoing, it is clear that the application dated 30th October 2024 should be dismissed. Consequently, it is dismissed.
34. I make no orders as to costs as this is a family matter involving close family members.
35. It is so ordered.
Dated and signed at Mombasa this 18th day of December 2024. Delivered virtually via Microsoft TEAMS.
2. The deceased died testate, having executed a will dated 6th May 2013 and two codicils dated 19th March and 27th November 2015. In the said will, he appointed his wife, Romola Amelia de Souza and daughters, Veena Carmen de Souza and Maya Helen de Souza, as executors and trustees of the said last will and testament.
3. In paragraph 23 of the will, the testator stated that:-
“I hereby suggest that any dispute shall be referred to and or be given for arbitration by the executors/trustees or be an independent party acceptable to both sides. This is Mr Ziman Coelho–Periera, former Advocate General of Goa or Mr Zezito Albuquerque, former Chief Engineer of Goa.”
4. Further, in paragraph 26, the testator wrote that:-
“The reason I am so reluctant to have continued conflict or litigation in Goa is that the cases usually take twenty or thirty years to conclude, by which time the property will have been grabbed by squatters and or the building will have collapsed or be in ruins as will be the case with family ties.”
5. It is common ground that Romola Amelia de Souza and Maya Helen de Souza were unhappy with the bequests made to them. Consequently, Veen Carmen de Souza, relying on the provision of paragraph 24 of the deceased’s will, sought to have them removed as executors and for Mark Viren de Souza to be appointed in their stead.
6. The said paragraph 24 of the will provides that:-
“I hereby instruct and direct my executors/trustees that if any one my children or any other person challenges my will or me personally, for any reason whatsoever, I instruct my Executors/Trustees to disregard any instructions or provision giving that person any right to my property, movable or immovable. And if any of my Executors/Trustees refuses to follow my direction or instructions, then she should resign or be removed as my Executor/Trustee and should be replaced by my other son, Mark Viren de Souza. Should he decline, then the remaining two shall remain as Executors/Trustees. I have tried my very best to be as equal and fair as I can be. It is known that any two people can disagree on the exact value of any two plots in any property.”
7. The petition for grant of probate of the written will of the deceased is dated 1st December 2023. The same was filed by Veena Carmen de Souza and Mark Viren de Souza. The executors identified the heirs and gave a full inventory of his assets in the affidavit in support of the Petition sworn before a notary public in London on 1st December 2023. The petition was expressed as being in respect of the Kenyan estate of the deceased.
8. The Petition was gazetted on 29th December 2023, vide Gazette Notice No 17696, dated 30th November 2023. There being no objection, the grant of probate of the written will of the deceased was issued on 1st February 2024 to Veena Carmen de Souza (hereafter “Veena”) and Mark Viren de Souza (hereafter “Mark”).
9. Vide an application dated 19th March 2024, Romola Amelia de Souza (hereafter “Romola”) and Maya Helen de Souza (hereafter “Maya) sought to have the grant issued on 1st February 2024 revoked. This application has not been heard to date.
10. The Petitioners filed an application dated 5th April 2023 seeking to have the application dated 19th March 2024 heard through viva voce evidence. The said application was allowed by consent in terms of prayer 2 thereof, with no orders as to costs being made.
11. Vide a summons dated 30th October 2024, Roy Sunil de Souza (hereafter “Roy” or the “Applicant”) filed an application through his counsel on record seeking the following prayer:-
“All disputes between the beneficiaries herein with regard to the estate of the deceased, together with those contained in the summons for revocation of grant dated 19th March 2024 be referred to arbitration in accordance with Clause 23 of the will of the deceased.”
12. Roy’s main ground is that the will of the deceased has an arbitration clause and that protracted litigation will have a negative effect on the family as a whole, as the parties are a mother and her children.
13. The Petitioners field ground of opposition dated 5th November 2024, denying that the matter is arbitrable. It was averred that a will is a testamentary intent and not a contract or agreement between the parties and cannot bind third parties who did not execute the will.
14. It was further urged that there was no arbitration agreement nor a dispute capable of being arbitrated. The Petitioners stated that in any case, reference to arbitration in the will was a suggestion and not a mandate. Lastly, they averred that succession matters are not arbitrable.
15. I have considered the parties' pleadings, the documents attached, and their written and oral submissions. The issues for determination by the Court are whether probate proceedings are arbitrable and if this matter should be stayed pending the hearing and determination of the intended arbitral proceedings in Goa.
16. To determine the foregoing questions, I must look at the provisions of the Law of Succession Act on what law applies to succession. Section 4 of the said Act provides that:-
“(1) Except as otherwise expressly provided in this Act or by any other written law—
(a) succession to immovable property in Kenya of a deceased person shall be regulated by the law of Kenya, whatever the domicil of that person at the time of his death;
(b) succession to the movable property of a deceased person shall be regulated by the law of the country of the domicil of that person at the time of his death;
(2) A person who immediately before his death was ordinarily resident in Kenya shall, in the absence of proof of domicil elsewhere, be presumed to have been domiciled in Kenya at the date of death.”
17. Paragraph 1 of the Petition for probate of the written will of the deceased gives his domicil as Muthaiga, Nairobi. In the affidavit in support of the Petition for probate written will, it is averred that the executors are seeking to administer the Kenyan assets of the deceased.
18. The foregoing is buttressed by the fact that the list of assets in paragraph 7 of the said affidavit lists down the Kenyan assets of the deceased only. No mention whatsoever of assets in other jurisdictions is made. It would appear to me, therefore, that the properties of the deceased in other jurisdictions will be subject to separate proceedings. In the circumstances, I am unable to agree with the apprehension expressed by Roy’s advocate, Mr Cecil Miller, that a conflict of laws will arise.
19. My understanding of the conflict between the beneficiaries of the deceased's estate is that it is mainly in relation to the devolution of the Muthaiga property. What Romola, Maya and Roy feel is that it should be available to all the beneficiaries. Since the said property is immovable, the law governing its devolution is the Kenyan law of succession.
20. This is so because the testator was domiciled in Kenya. In the last will and testament, the testator was quite categorical that he was domiciled in Kenya and stated in paragraph 2 that:-
“ I declare that I am domiciled in the Republic of Kenya and the laws of the Republic of Kenya shall apply to this my will. The laws of the Republic of Kenya do not recognize the concept of properties held in “community” and so all my rights are held as provided by “separation”. Please see paragraph Number 21 below.”
21. Are succession issues arbitrable? The Petitioner submits, relying on the decision of Tuiyott, J (as he then was) in Gerick Kenya Ltd vs Honda Motorcycle Kenya Ltd ( 2019) eKLR, that they are not as they are rights in rem.
22. It is necessary that the reasoning of the learned Judge in the above decision be put in its proper context. He stated in the relevant part of his ruling that:-
“15. This court has familiarized itself with the decision in Ayyasamy (supra) and finds that the rationale why certain disputes must be considered as non-arbitrable is found in the decision of Booz Allen & Hamilla Inc –vs- SBI Home Finance Limited and others 2011 5 SCC 532 cited in the said decision. The Court held:-
22. Arbitral tribunals are private fora chosen voluntarily by the parties to the dispute, to adjudicate their disputes in place of courts and tribunals which are public fora constituted under the laws of the country. Every civil or commercial dispute, either contractual or non-contractual, which can be decided by a court, is in principle capable of being adjudicated and resolved by arbitration unless the jurisdiction of arbitral tribunals is excluded either expressly or by necessary implication. Adjudication of certain categories of proceedings are reserved by the Legislature exclusively for public fora as a matter of public policy. Certain other categories of cases, though not expressly reserved for adjudication by a public fora (courts and Tribunals), may by necessary implication stand excluded from the purview of private fora. Consequently, where the cause/dispute is inarbitrable, the court where a suit is pending, will refuse to refer the parties to arbitration, under section 8 of the Act, even if the parties might have agreed upon arbitration as the forum for settlement of such disputes. The well recognized examples of non-arbitrable disputes are : (i) disputes relating to rights and liabilities which give rise to or arise out of criminal offences; (ii) matrimonial disputes relating to divorce, judicial separation, restitution of conjugal rights, child custody; (iii) guardianship matters; (iv) insolvency and winding up matters;
(v) testamentary matters (grant of probate, letters of administration and succession certificate); and (vi) eviction or tenancy matters governed by special statutes where the tenant enjoys statutory protection against eviction and only the specified courts are conferred jurisdiction to grant eviction or decide the disputes.
23. It may be noticed that the cases referred to above relate to actions in rem. A right in rem is a right exercisable against the world at large, as contrasted from a right in personam which is an interest protected solely against specific individuals. Actions in personam refer to actions determining the rights and interests of the parties themselves in the subject matter of the case, whereas actions in rem refer to actions determining the title to property and the rights of the parties, not merely among themselves but also against all persons at any time claiming an interest in that property.
Correspondingly, judgment in personam refers to a judgment against a person as distinguished from a judgment against a thing, right or status and Judgment in rem refers to a judgment that determines the status or condition of property which operates directly on the property itself. (Vide: Black's Law Dictionary). Generally and traditionally all disputes relating to rights in personam are considered to be amenable to arbitration; and all disputes relating to rights in rem are required to be adjudicated by courts and public tribunals, being unsuited for private arbitration. This is not however a rigid or inflexible rule. Disputes relating to sub-ordinate rights in personam arising from rights in rem have always been considered to be arbitrable.’’ (emphasis added).
23. From the foregoing it is evident that the Court found that whereas rights in rem are not generally arbitrable, there are exceptions, such as that relating to “subordinate rights in personam arising from rights in rem.”
24. Constitution of Kenya, 2010 provides as follows in Article 159(2)(c):-
“(c) alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause (3)”
25. Kenyan Courts have held, in light of the foregoing provision of the Constitution and legal framework that family disputes can be arbitrated. The Court of Appeal in TSJ vs SASR [2019] eKLR held in paragraph 34 that:-
34. The same holds true today. Moreover, in light of the current constitutional and legislative framework, it cannot be said that the use of arbitration in the sphere of personal law disputes is either against the law or against public policy. The converse is indeed true. We are unable to conclude, as the Judge did, that personal law disputes fall exclusively within the domain of the courts to resolve. To borrow the words of Stewart E. Sterk, Associate Professor of Law, Benjamin N. Cardozo School of Law, in his article published in Cardozo Law Review, Volume 2, page 481 under the title, Enforceability of Agreements to Arbitrate: An examination of the public policy defense, we are in an era where “arbitration is no longer an unwelcome stepchild in the courts”. We are in an age where, “Judicial jealousy and mistrust of the arbitration process have been replaced by an era in which arbitration is embraced as an effective and efficient mechanism for resolving disputes”.
35. It is not apparent why, despite reference having been made by counsel to the decision of the Court in case of Nurani vs. Nurani, the learned Judge gave it a wide berth. In our view, despite the fact that it was decided long before the 2010 Constitution, it represents the state to the law. It is our view therefore, and we hold, that there is nothing in the Arbitration Act that would prevent disputes “of a personal nature”, as the learned Judge put it, being resolved under the framework of that Act.”
26. Having said that, arbitration is a consensual process. Parties must have agreed in writing to have their matter resolved by arbitration. A dispute must exist, which is to be resolved by arbitration.
27. I agree with the Petitioners' submissions that a will is not a contract but a unilateral declaration of intent. I agree with the finding of Judge Edward A. Jerejian, quoted In the matter of the Estate of Samuel P. Hekemian, Deceased, No. P-479- 21 (N.J. Super. Feb. 7, 2022), whereby he start that:-
“Here, there is a lack of mutual assent regarding the Article Seventeenth arbitration clause. The LWT is a statement of testamentary intent, not an instrument that reflects a consensual understanding between parties. In short, a will is not a contract, nor is it an agreement as defined in Rachal. No court in New Jersey has ruled that a will is an agreement between the testator and their beneficiaries for the purposes of arbitration provisions because there lacks a consensual understanding between parties in the will context where only one party has expressed an intent to arbitrate. . . .
Therefore, on basic contract principles, the lack of mutual assent to the provision renders the provision unenforceable and [p]laintiff cannot be compelled to arbitrate. “
28. Thus, for this matter to be arbitrated, it would be necessary for the parties to enter into an arbitration agreement. There is no such agreement at the moment.
29. Even if I were wrong, it does not seem to me as though there is a requirement for arbitration in the will of the deceased. What the deceased did, probably in recognition of the consensual nature of arbitration, was to suggest that any dispute be arbitrated. The suggestion left the beneficiaries with options to follow or to disregard what was suggested.
30. In any case, even if there were a requirement for arbitration which bound the parties, it would appear to me that the dispute would be on whether the 2nd Petitioner was validly appointed as an executor of the will. The jurisdiction under section 76 of the Law of Succession Act is only exercisable by this court and not by an arbitral tribunal.
31. In the circumstance I am unable to agree with the submissions of the Applicant’s counsel that this matter be referred to arbitration.
32. Having found as above, it is not necessary for me to consider whether these proceedings should be stayed. Since referral to arbitration has been denied, it follows that a stay for purposes of allowing arbitration proceedings to be conducted cannot be granted.
33. From the foregoing, it is clear that the application dated 30th October 2024 should be dismissed. Consequently, it is dismissed.
34. I make no orders as to costs as this is a family matter involving close family members.
35. It is so ordered.
Dated and signed at Mombasa this 18th day of December 2024. Delivered virtually via Microsoft TEAMS.