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JudgmentIn the Estate of KAVILA30 min read

In the Estate of KAVILA

High Court at Makueni High Court · · Matheka, Teresia Mumbua

  1. Before me is the Summons for Revocation of Grant dated 30/01/2023 seeking the following orders:
  2. That the alleged Will dated 8th December, 2016 presumed to have been made by Peter Lukas Kilonzo Kavila (the deceased) be declared invalid as it was not attested by two (2) independent witnesses.
  3. That the alleged Will dated 8th December, 2016 alleged to have been made by Peter Lukas Kilonzo Kavila (deceased) be declared invalid as the testator was coerced.
  4. That the alleged Will be declared invalid as the testator did not clearly understand his actions as he could not recollect all his assets.
  5. That this honourable court do issue an order varying the Will of the deceased for reasonable and equitable distribution of the Estate to the applicants in the event orders 3 and 4 are not issued.
  6. That the Grant of Letters of Administration issued on the 24th day of May, 2022 to Ruth Mukuthe Muia and Elizabeth Mbenge Kilonzo be revoked.
  7. That the honourable court do issue an Order of Stay of Execution and/or use of the Grant of Letters of Administration issued on the 24th day of May, 2022 to the 1st and 2nd Respondents pending hearing and determination of these summons.
  8. That the applicants be allowed to administer the Estate of their deceased father, in lieu of the respondents.
  9. Peter Lukas Kilonzo Kavila died on 31/03/2021 aged 65 years old.
  10. The certificate of death shows that he died of congestive cardiac failure, hyperglycaemia.
  11. The letter from the office of the chief Ukia location dated 4/8/2021 stated that he was survived by four children from the 1st house – who include the applicants, and the 2nd respondent. (Their mother Tabia Kilonzo is indicated as deceased) and his second wife – the 1st respondent and her daughter Charity Wavinya Nzioka.
  12. On 6/11/2021, the respondents who are the 2nd wife of deceased – Ruth Mukethe Muia, and the last born daughter of the 1st wife – Elizabeth Mbenge Kilonzo filed petition for Letters of Administration with Will annexed.
  13. Annexed to the petition was a document dated 08/12/2016 titled “Will by Peter Lukas Kilonzo Kavila” drawn by Mbaluka and Co. Advocates, Bruce House, 12th Floor, Standard street- Nairobi.
  14. It is a four-page document on the 4th page – it indicates it is signed by the testator in the presence of Advocate (evidenced by rubber stamped details) Joel Kyatha Mbaluka and signed. It also indicates that one Andrew M. Muthoka witnessed it.
  15. The grant was made on 24/05/2022 to the two applicants – on form P&A 41 signed by Hon. Dulu J.
  16. On 31/01/2023 a Summons for Revocation of Grant was filed by Kilonzo Lawrence Morris Wambua, Anita Mwikali Kilonzo, Grace Mueni Kilonzo, the applicants herein. It was brought under section 76 of the LOSA and rule 44 of the P&A Rules seeking orders set out above – on the grounds :
  17. The applicants are children of the deceased.
  18. The alleged Will is invalid on the face of it as it was not attested by two (2) independent witnesses as required by the Law of Succession.
  19. The deceased was unduly influenced by his wife one Ruth Mukethe Muia so as to disinherit the applicants wherein on the preamble of the Will the deceased makes utterances which on the face of the same discriminate the applicants herein.
  20. The deceased did not clearly understand his actions as he could not recollect all assets in his name by wrongfully including properties in the name of Tabia Kamene Kilonzo (the deceased wife”) as his own.
  21. The grant was obtained by the concealment from the court of facts which are material to the case.
  22. That the grant was obtained by means of untrue allegation of facts essential in points of law to justify the grant.
  23. The annexed Will of the deceased is a sham and invalid as the applicants herein have not been adequately provided for in the Will.

The Summons is supported by the affidavit of Kilonzo Lawrence Morris Wambua (Wambua) sworn on 30/01/2023 with the authority of the 2nd and 3rd applicants – his sisters.

  1. In his affidavit, Wambua avers –
  2. That he and sisters were not made aware of the Will, and the petition was filed without their knowledge.
  3. That a reading of the Will exposed the influence of the 1st respondent who was got married to the deceased in 2015 – yet the wealth of the deceased was accumulated during the subsistence of his marriage to their mother with whom they lived happily until her demise.
  4. That it was clear from the Will that the children of the 1st wife were disinherited due to the influence of the 1st respondent as can be read from the utterances of the deceased in the preamble.
  5. That it is evident on the face of the Will that he did not clearly understand his actions because among other things he had disposed of properties registered in their mother’s name –namely

LR Tassia 11-97/1172/2150 and LR Tassia II – 97/1174/004 – the annexed searches to demonstrate the same.

  1. That the applicants had not been adequately provided for as most of the properties belonging to their mother were allocated to the respondents – and yet they do not form part of the estate of the deceased.

In addition, they were in the process of filing a petition with respect to their mother’s estate.

  1. That he was under the advice of his advocate that the court had the discretion to vary a written Will to ensure reasonable and equitable distribution of the estate of the deceased among his beneficiaries.
  2. In response, the 2nd respondent Elizabeth Mbenge Kilonzo (Mbenge) filed an affidavit with the authority of the 1st respondent sworn on 16/02/2023 opposing the Summons for Revocation of Grant on the ground that it was “incompetent, bad in law, vexatious and an abuse of the court process intended to delay the succession proceedings”.
  3. She avers that the Will was attested to by two witnesses – the advocate and one Andrew Muthoka
  4. That the applicants must demonstrate elements of coercion alleged/force and that the deceased did not exercise free will in making the will in order to succeed in their claims; they have not done that.
  5. She denies that the deceased did not understand his actions clearly.
  6. That the deceased wrote a draft Will in his own hand which he forwarded to the advocates and the draft is annexed as DMK 3 – a clear indication of his clarity of mind.
  7. That the inclusion of a property that did not belong to him in the Will could only be because he had reasonable grounds to believe that the property was his.
  8. That a Will is not rendered invalid merely because it does not provide adequately for same beneficiaries.
  9. That a person named in a Will as an executor does not need the consent of other beneficiaries to seek the grant.
  10. In a further affidavit, sworn on 15/03/2023 Wambua contended that the will did not comply with the provisions of the LOSA, and the advocate could not be treated as a witness.
  11. That elements of coercion could be read from the Will – the utterances made by the deceased against their mother despite him

having lived with her peacefully – that the deceased expressed frustrations against the his deceased 1st wife and her children was clear that he was not acting out of his free will.

  1. That he, Wambua was the registered owner of some of the properties e.g.  42l Tassia -11-97/1006/360 and the annexed proof.
  2. That it was necessary that all the beneficiaries be informed of the existence of a Will and any court proceedings thereof.
  3. That it was in the interest of justice that the Will be declared invalid for lack of proper attestation.
  4. Parties decided to proceed by way of written submissions.
  5. The applicants set out the following issues for determination: -
  6. Whether the alleged Will is invalid for want of attestation by two (2) independent witnesses?
  7. Whether the alleged Will is invalid on grounds of coercion?
  8. If the courts find (b) is in the negative and the Will is held to be valid, whether a testator can bequeath assets/property that do not belong to him?
  9. Whether the Honourable court has inherent powers to revoke the will to make reasonable and equitable distribution to the

applicants who are the beneficiaries of the estate of the deceased.

  1. Costs of this suit.
  2. On the 1st issue the applicants cite section 11 of the LOSA which states

Written wills

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

  1. They also rely on In the matter of the  Estate of Susan Kanini Kilonzo (deceased) Nairobi H.C Succession Cause 2669/2000, where it was held that a will signed by witness was invalid and Re estate of Murithi M’Mugambi (deceased) [2019]e KLR where the court stated

“On the face of it the Will cannot be said to be valid as it has not been witnessed by two (2) independent witnesses as required in law.

  1. On the 2nd issue it is submitted that the 1st respondent must have coerced the deceased – and that she is a free loader who only married the deceased so as to take over his wealth, that this is evident from the fact that most bequests were made to her. The applicants submit that they are alive to the fact that a testator can dispose of his estate and make bequests as he wishes but argue that that he should not do so at the expense of his family.
  2. On the 3rd issue the applicants submitted that in any event the deceased could not bequeath property that was not his. That the said bequests were evidence that he did not understand the full extent of his actions. It was submitted that Tassia 97/1006/360 which the testator  bequeathed as follows ’ …all developed to be inherited by Tabia’s Children however Morris should not make any decisions’ is registered in the name of the said Morris. That in addition, the property Tassia 97/0704/2150 popularly known as dukas bequeathed to Ruth Mukethe the 1st respondent herein belonged to the 1st wife of the deceased Tabia and is subject to an on-going probate and administration cause in Machakos High Court Succession Cause No. 760/2021.
  3. The applicants rely on Banks versus Good Fellow (1870) LR 5 QB 549 as cited with approval in Vaghella –v- Vaghella:

“ a testator shall understand the nature of the act and its effects, shall understand the extent of property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing property and bring about a disposal of it which if the mind had been sound, would not have been made”.

  1. On the 4th issue the applicants urged the court to invoke its inherent powers to revoke the will and be guided by section 28 and 29 of the LOSA, to make an order for provision for the dependents as provided for by s. 29. They urge the court to see that the teator bequeathed his estate in equal shares between the applicants and the 1st respondent without due regard to the fact that most of the properties were acquired before celebrating the union with the 1st respondent
  2. That the testator to bequest his estate in equal shares between the applicants and the 1st respondent yet the number of beneficiary’s in

each unit is different. The Applicant submit that court has inherent jurisdiction to do justice and distribute the estate in accordance with section 40 of the LOSA which states in effect that where an deceased person was polygamous the intestate estate the distribution of the estate shall be determined by the number of units, these being the wife and children in each house hold.

  1. On the 5th issue they acknowledge the courts discretion and submit that costs follow the event and the court should be guided by s. 27(1) of the Civil Procedure Act.
  2. The Respondents on their part framed the following issues:
  3. Whether the Will dated 8th December 2016 is valid.
  4. Whether this Honourable court should issue an order varying the Will dated 8th December 2016.
  5. Whether this Honourable court should revoke the grant of letters of administration issued to the respondents on 24th May 2022.
  6. Whether this Honourable court should issue an order of stay of execution and/or use of the grant of letters of administration issued on 24th May 2022 to the 1st and 2nd respondents pending hearing and determination of these summons.
  7. Whether the applicants should be allowed to administer the estate of their deceased father in lieu of the respondents.
  8. Who should bear the costs of this application
  9. On the 1st issue the respondents also cite section 11 of  the LOSA and section 3(1) of the same Act on the definition of competent, independent witness; "competent witness" means a person of sound mind and full age "independent witness" means a witness who is not a beneficiary under a will or the spouse of any such beneficiary; They argue that the 2 witnesses attested the Will. These were advocate Joel Kyatha Mbaluka and Andrew M Muthoka.
  10. On the 2nd issue they cite section 5(3) of the LOSA. It states that 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.
  11. They submit that there are no allegations of mental or physical illness, drunkenness or any other cause to establish that the due to the deceased’s state of mind at the time of the execution of the Will he was incapable of executing the will.  That deceased was of sound mind, and that the draft he prepared for the advocate is proof that he was of sound mind and was aware of what he was doing. That in any event it was the burden of the applicants to establish with proof the alleged incapacity of the deceased.
  12. That on the issue of the undue influence by 1st  respondent, it is submitted that these were mere unsubstantiated allegations. That the period of conflict referred to by the deceased between him and the mother of the applicant’s was long before the 1st respondent came into the picture it could not be true – as the mother of applicants passed on 2010, and that 1st respondent was married in 2015 – and could not have known the issue of the deceased’s wife so as to influence him against the applicant’s family. It is submitted that the fact that the deceased included those issues in the will demonstrates that he did so to justify the manner in which he made the distribution.
  13. That to succeed on this line of argument the applicants would have to establish that the deceased was of a weakened/feeble condition amenable to manipulation and not in control of his faculties. The respondents cite – in Re Estate of Julius Mimano (deceased) [2019] e KLR.
  14. On the third issue it is submitted that including properties registered in the name of the wife could be explained by the preamble to the will where the deceased indicated he got some property from government used to give 1st wife money – and he may have had the idea not he was entitled – even because she bought the same with his money/or he registered in her name. That errors like this cannot invalidate a will so long as the intentions of the testator can clearly be deduced– see Re Estate of Sarastino M’Chabari M’Ukabi alias Chabari Mukabi (2018) e KLR.
  15. On 4th ground it is submitted that the failure by a testator to provide for beneficiaries cannot be reason to invalidate a wail . They cite Re Estate of Julius Mimano (deceased) (2019) e KLR which cited with approval the decision in James Maina Anyango –v- Lorna Yimbiha Ottaro & 4 others (214) e KLR where the court held that failure to make provision for a dependant by a deceased in his will does not invalidate a will as the court is empowered by section 26 of the LOSA to make reasonable provision for the dependant.
  16. On the 5th issue – it is submitted that the power to vary a will is provided for under section 26 of the LOSA which states

Where a person dies after the commencement of this Act, and so far as succession to his property is governed by the provisions of this Act, then on the application by or on behalf of a dependant, the court may, if it is of the opinion that the disposition of the deceased's estate effected by his will, or by gift in contemplation of death, or the law relating to intestacy, or the combination of the will, gift and law, is not such as to make reasonable provision for that dependant, order that such reasonable provision as the court thinks fit shall be made for that dependant out of the deceased's net estate.

  1. It is submitted that to deal with issue the court would have to answer the question whether the deceased adequately provided for the applicants in the will. That a perusal of the will reveals that there are specific provisions for them to with;
  2. Clause 1: Ancestral land (plot 1142) to be divided equally into two parts between Tabia’s children and Ruth.
  3. Clause II: Kinguthya (plot 360) the residential area to remain for all parties  (Ruth to remain the custodian of the main house and other utilities) . The shamba to be divided in equal measures to Tabia’s children and Ruth. Each unit should own one well which I have drilled.
  4. Clause IV: Ukia junction plot – … this plot be sold and the proceeds be shared equally by Tabia’s children and Ruth.
  5. Clause V: Makueni (Wote) plot …. The proceeds to be shared equally by Tabia’s children and Ruth.
  6. Clause VI: Investment with Utaati Group ...the proceeds to be shared by Tabia’s children and Ruth.
  7. Clause VII: Plots in Tassia 97/1006/360, 97/1174/004 all developed to be inherited by Tabia’s children however Morris Wambua should not make any decisions.
  8. Clause IX: Residential House/parking in Tassia 97/1123/005 and 97/1174/2149 to remain for the entire family and in the event of any sale the proceeds to be shared equally by Tabia’s children and Ruth.
  9. Clause XI: Shares with Housing Finance equally to be shared by the two families.
  10. Clause XIII: Proceeds from planted trees to be shared by Tabia’s children and Ruth.
  11. In the circumstances it is further submitted that section 26 donates to the court complete discretion in making the order for a specific share of the estate or provision from the estate with respect to a dependant.  That is the effect of section 27. The exercise of this power is to be guided by the considerations set out at section 28:

Circumstances to be taken into account by court in making order In considering whether any order should be made under this Part, and if so what order, the court shall have regard to—

(a) the nature and amount of the deceased’s property;

(b) any past, present or future capital or income from any source of the defendant;

(c) the existing and future means and needs of the dependant;

(d) whether the deceased had made any advancement or other gift to the dependant during his lifetime;

(e) the conduct of the dependant in relation to the deceased;

(f) the situation and circumstances of the deceased’s other dependants and the beneficiaries under any will;

(g) the general circumstances of the case, including, so far as can be ascertained, the testator’s reasons for not making provision for the dependant.

  1. It is submitted that the deceased described in the preamble to his will that state of his relationship with each of the beneficiaries and proceeded to bequeath in accordance with that relationship – That he also appeared to take into consideration previous advancements to the beneficiaries and how they had utilised them. see Re Estate of Wilfred Koinange Gathiomi(deceased) (2020) e KLR where the court faced with an objection to the will on similar grounds ( not making adequate provision for the applicants) the court noted as follows:

“In spite of his frosty relationship with the objectors, the deceased made several bequests to them and if the petitioner and Margaret got more than the objectors did, then the explanation lay not in the mischief of the petitioner as suggested by them, but in their troubled relationship with their own brother …. It is not difficult, reading the document to notice the thread running through it that reflects how the deceased’s relationship corresponded with the bequest to specific beneficiaries. That is hardly unusual in human affairs. The deceased was at liberty to dispose of his free property as he desired.”

  1. The respondents urge the court to respect the testamentary freedom of the deceased and refer the court to   section 5(1) of the LOSA which provides  Persons capable of making wills and freedom of testation

(1) Subject to the provisions of this Part and Part III, every person who is of sound mind and not a minor may dispose of all or any of his free property by will, and may thereby make any disposition by reference to any secular or religious law that he chooses

  1. The respondents also cite in RE Estate of Julius Mimano (Deceased )[2019] e KLR, where in an application for reasonable provision  the court considered that the applicant had been adequately provided for in the will and declined to grant the order while stating as follows

“Quite clearly, it cannot be accurate for the applicant to claim that he and his siblings were not provided for under the will of their father. They are clearly provided for and named in the will as beneficiaries, only that their benefits were not immediate as the children would only access the estate upon the demise of their mother … In the circumstances there cannot be any foundation to mount an application under section 26 of the Law of Succession Act for lack of adequate provision.”

  1. On the 6th issue the respondents cite section 76 of the LOSA and argue that no facts were provided by the applicants to establish the alleged violations of section 76 – that the alleged concealment of facts material to the case and the untrue allegations by means of which the alleged the grant was obtained have not established by the applicants and in any event the executors are the proper persons to apply for the probate. They cited Re Estate of Julius Mimano (above).
  2. On the issue of stay of the execution or use of the grant it is submitted that  that neither the LOSA nor the P&A rules provide for stay of grant of representation and there would be basis for such an order.
  3. On whether the applicants should take over from the respondents, it is argued there is a valid will in which the deceased appointed the executors to be the two respondents and unless they renounce that position they are the only ones authorised to administer the will. It is submitted that the applicable law is section 62 of the LOSA

No grant of administration until citation issued to executor

When a person who has been appointed by a will is an executor thereof has not renounced the executorship, letters of administration shall not be granted to any other person until a citation has been issued, calling upon the executor to renounce his executorship or apply for a grant of probate of the will:

Provided that—

  1. when one or more of several executors have proved a will, the court may, on the death of the survivor of those

who have proved, grant letters of administration without citing those who have not proved; and

  1. (ii) there may be such limited grants of letters of administration in accordance with the provisions of section 54 of this Act as may, in the opinion of the court, be necessitated by any special circumstances.
  2. The respondents submit that the costs should follow the event.

ANALYSIS AND DETERMINATION

  1. I have carefully considered the Summons for Revocation of grant, the rival affidavits and the submissions by counsel. I have read the authorities cited and must express my gratitude to counsel for the elaborate submissions from each side.
  2. It is my considered view that each of the issues raised by the parties will depend on whether or not the will herein is valid or not. It is also my view that I need not set out the issues down as set out by each party as they are all intertwined.
  3. I begin with whether or not the grant herein was obtained through concealment of material facts/or through untrue allegations as alleged by the applicants. It is necessary to point out – on these two allegations, h who alleges must prove. S. 107 of the Evidence Act places the burden on the applicants. On account of the provisions of section 76 of the LOSA the applicants were required to place before the court factual evidence to support the two allegations. What are these material facts that the respondents had concealed from court? What untrue allegations did they make? Not a single piece of evidence was placed before me to support those two allegations placed before. The two respondents are the appointed executors of the will and what they needed to do is provided for by the law at Rule 7 of the P&A Rules

7(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.

(6) Where the grant sought is one of letters of administration with a written will annexed the applicant shall satisfy the court before the issue of the grant that every executor appointed by the will who is living at the time of the application either has consented in writing to the issue of the grant to the applicant, or has renounced his executorship, or has been issued with a citation calling upon him either to renounce his executorship or to apply for a grant of probate of the will. (7) Where a person who is not a person in the order of preference set out in section 66 of the Act seeks a grant of administration intestate he shall before the making of the grant furnish to the court such information as the court may require to enable it to exercise its discretion under that section and shall also satisfy the court that every person having a prior preference to a grant by virtue of that section has—

(a) renounced his right generally to apply for a grant; or

(b) consented in writing to the making of the grant to the applicant; or

(c) been issued with a citation calling upon him either to renounce such right or to apply for a grant.

  1. From the foregoing citation Rule7 of the P&A Rules provides for the procedure for the application for grant. At 7(6) it states that it is the consent of every executor appointed in the will that is required before the application for the grant is made and there is provision for renunciation and citation of the executor. Clearly there is no mandatory provision for the consent of the beneficiaries to be obtained by the executors of the will before filing for the grant as is the case an intestate estate which is provided for by Rule 7(7).
  2. On whether the will complied with the legal formalities of the will the question is was the will signed by the requisite witnesses? The applicants argue that the will was only attested by one person because on the document the part that provides for witnesses has a space for two witnesses but only one name appears – and that the advocate who signed the will cannot be counted as a witness. That  part of the will  states:

“This will is signed by the testator Peter Lukas Kilonzo Kavila as his last will and testament at Nairobi this 8th December, 2016 in the presence of advocate Joel Kyatha Mbaluka witnessed by Andrew M. Muthoka”.

  1. It is important to point out that the signature of the deceased is not disputed. It is also not contested that the deceased signed the will in the presence of two persons. The advocate witnessed the deceased sign the will and Andrew M. Muthoka also witnessed the deceased sign the will. Is the advocate an incompetent or un-independent witness? The fact that the will was drawn by Mbaluka & Co. advocates does not render Joel Kyatha Mbaluka either incompetent or not independent. The law clearly defines these and it was not demonstrated that he was a beneficiary under the will and he could not have been a spouse of the deceased; neither is it demonstrated that he was a minor or of unsound mind.  It is my my view the two witnesses  fulfil the requirements of section 11(c) of the LOSA , they witnessed the deceased sign the will, and their independence and competence remains unchallenged
  2. On the capacity of the deceased to make his will the question was; Was the deceased capable of making the will? It was argued that one evidence of the incapacity was his failure to recollect all his properties and listing properties said not to belong to him.  What is noteworthy and is not contested in this matter is that the deceased wrote out in his own hand what he wanted to be in his will. The hand written document was made on 28/10/2016, and the one before the advocate on 8/12/2016. So evidently he had no physical incapacity – he could read and write. It is not a case where one would allege that he dictated his wishes to someone, and that someone wrote his own things. The evidence of the handwritten document demonstrates that he had no physical or mental incapacity and in my view had his capacities with him.
  3. There were allegations of coercion and undue influence by the 1st respondent. This court was urged to deduce that from the language of the preamble to the will. That that language demonstrated the influence of the 1st respondent, and his discrimination of the first family.
  4. In this matter I never heard the applicants of the respondents speak. Parties chose written submissions. I have to listen to the written words and deduce from the written words what each person is saying, what each person was feeling.  That puts everyone in this matter on the same page with the deceased that even for him, I have to deduce what he was saying from the written word of his will.. He appears, from the language of the will to be a man speaking his mind – and reading his will one can almost hear him almost hear him speaking: he speaks about his 1st wife  who died in 2010, and the kind of relationship they had and what they did together in terms of acquisition of property and his displeasure when he found that she had no savings in her account at her death despite investments he entrusted to her, he speaks about his 2nd wife who he divorced, and his third wife the 1st respondent and her grown child. One can tell from the language, which is sound like direct translation from the Kikamba language that she was dear to him. He states that she had demonstrated that she was his. He speaks of her good influence upon his family and the family investments. He speaks about his children with his 1st wife and especially his only son, the 1st applicant – his in-laws from the 1st wife and their bad influence on his children upon demise of their mother. For the 1st applicant aged 42 the deceased states he had constructed a house for him valued at 3.5m, connected water and power without any contribution from him, that he (1st applicant) had entered into situations where the deceased had to bail him out to the tune of millions of shillings, yet he never made any single investment in his life – the deceased described him as “lazy, dishonest, untrustworthy (person leading) a very careless and irresponsible life … had misused, sold family property without authority … never bought even a chicken or furniture, never planted any tree or fruit in the family shamba or anywhere… if he cannot look for his own property there is no way he can take care of property acquired by somebody else ... he can only benefit from my estate through what I give to his sisters and nothing else …”. This is the description by a father of his own son, written in black and white. Other than saying that the language was discriminatory, this was not contested by the 1st applicant or the other applicants. The respondents appear to confirm that this was so when they say that the deceased made reference to his relationships with the beneficiaries in making his decision.
  5. The 2nd applicant aged 39 the deceased described as mean, selfish acting under the influence of her maternal relatives. The 2nd respondent did not contest these specific attributes that her father saw in her.
  6. The 3rd respondent aged 36 he described as quiet and conservative.
  7. The 2nd respondent was described as obedient, social, trustworthy.
  8. Is this the language from the mind of a person whom s. 5(3) of the LOSA can apply of not to know what he is doing due to a state of mind, arising from mental or physical illness, drunkenness, or from any other cause? Does it demonstrate the undue influence from the 1st respondent? What I hear is the voice of a disappointed parent telling the truth as he saw it at the time he wrote the will. It is not undue influence or coercion that I read – it is the truth that he appears to have expressed to these beneficiaries in his lifetime but who it appears did not listen and the only way they would hear him loud and clear was in his will. S. 28 (e) of the LOSA allows the court to take into consideration the conduct of the dependant in relation to the deceased; it is my view that the deceased did not want to leave it to guess work what he thought about his children and their relationship with him by the time of his demise. How could all this have come from the 1st respondent?
  9. It is not disputed that the 1st respondent came into the family five years after the death of the applicant’s mother and was not in the picture when the deceased and their mother had issues if any.in between the deceased had another wife with whom they divorced.  I find no basis upon which to draw the deduction that the deceased acted on the undue influence/coercion of the 1st respondent. How about the 2nd respondent who is a sibling of the applicants? they are on the same side? This complaint would have held water if there had been proof or evidence that the deceased was feeble of mind/or weakened position or unsound mind or a drunkard – to warrant that allegation. This is what s. 5(4) of the LOSA states 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. I need not add anything.
  10. What about the issue of bequeathing property that belonged to the applicant’s mother – that issue was well explained – and it comes out from the authorities cited by the respondents the mere fact of such a bequeath is not proof of incapacity y that it can be the reason to invalidate the will. The deceased stated in his will that there were properties that he had obtained/acquired in the name of 1st wife – he may have had the belief that they still belonged to them. On the other hand, if indeed these properties belong to the deceased’s 1st wife – the applicants have filed a succession cause with respect to their mother’s estate and can pursue the issue there. Nothing stops them from raising the issue in that matter and having the court determine which estate the properties belong to. In addition, if the properties belong to the 1st applicant then that would not be an issue for invalidating the will.
  11. Now the big question, are the applicants adequately provided for? Is there any reasonable ground to warrant the application of s. 26, 27, 28 and 29 of the LOSA? I have carefully read through the bequeaths. The deceased shared his estate equally between the two houses except for his motor vehicles which he specified – one was to go to the 1st respondent, the other to the 2nd respondent. The rest of the estate he shared between his two houses. He also made reference to the provisions he made for the children even in their adulthood – and the fact that each of them was self-reliant at the time of his demise. I find no reason at all to interfere with his wishes – as it would appear to me that despite his disappointments with some of the children of his 1st wife and his 1st wife’s family – he did not disinherit his children – but left them an equal share of his estate on top of what else he had provided for them.
  12. There would be no basis upon which to apply section 40 of the LOSA to this estate as it is not applicable.
  13. Ultimately it is my view that the summons for revocation of grant is not merited.
  14. About costs – I have been urged by either side to let the costs follow the event but in these family matters unless there is an extenuating circumstance – the general rule is that each party bear its own costs. In this case – it was only natural for the applicants to feel that their father would have given them more and given their step mother less, because their mother lived longer with the deceased. However, as things are every person has a right to dispose what they own in accordance with their own wishes which we have an obligation to respect unless for good reason. Hence each party will bear their own costs.
  15. Ultimately the will have made by Peter Lukas Kilonzo Kavila on the 8th December 2016 complies with the law and is hereby declared to be valid;
  16. Consequently;
  17. The prayer for an order varying the Will of the deceased for reasonable and equitable distribution of the Estate to the applicants is not merited and is unmerited and is denied. 
  18. The prayer that the Grant of Letters of Administration issued on the 24th day of May, 2022 to Ruth Mukuthe Muia and Elizabeth Mbenge Kilonzo be revoked is unmerited and is refused.
  19. The prayer that the applicants be allowed to administer the Estate of their deceased father, in lieu of the respondents is untenable and is refused
  20. The Summons for Revocation of Grant is dismissed
  21. Each party to bear its own costs.

                Court Assistant: Nelima /Elizabeth

               Applicants – Morris Kilonzo

              Respondents N/A

            Counsel for Applicants Mr. Matata

             Counsel for Respondents Ms Adongo

    In the Estate of KAVILA In the Estate of KAVILA