JUDGMENT
A. Introduction
1. Before this Court is the Summons for Revocation of Grant dated 9th June 2023 and filed on 17th June 2023 pursuant to Sections 48 and 76 of the Law of Succession Act, Cap 160 Laws of Kenya and Rules 44 and 73 of the Probate and Administration Rules.
2. The Applicants, being beneficiaries of the estate of the late Marco Mangerere (hereinafter “the Deceased”), seek revocation of the Grant of Probate of Written Will issued to Henry Nyabuto Mangerere on 26th May 2023.
3. The Applicants contend that:
a) The alleged will dated 18th December 2014 was executed when the Deceased lacked testamentary capacity;
b) The will was prepared under suspicious circumstances;
c) Material facts were concealed from the Court;
d) The proceedings to obtain the grant were defective in substance.
4. The Respondents oppose the application and maintain that the will was validly executed and the Deceased was of sound mind.
5. The application was heard by viva voce evidence and written submissions filed. PW1, PW2 and PW3 testified in support of the Summons for revocation of grant . The testified that they did not consent to making of the grant probate , the deceased had no mental capacity to make the Will and thus the grant was obtained fraudulently and with concealment of material facts . Dw1 and Dw2 testified against the revocation arguing that the grant was procedurally obtained and that the Will is valid as deceased had capacity to enter into it.
B. Issues for Determination
6. I have carefully considered the objection, the replies and the able submissions by both counsel .The issues arising for for determination are:
i. Whether the will dated 18th December 2014 was valid.
ii. Whether the Applicants have satisfied the threshold for revocation under Section 76 of the Law of Succession Act.
C. Validity of the Will
(i) Legal Framework
7. Section 5(3) and (4) of the Law of Succession Act provides:
“Any person making or purporting to make a will shall be deemed to be of sound mind… unless he is, at the time of executing the will, in such a state of mind… as not to know what he is doing.
The burden of proof that a testator was… not of sound mind, shall be upon the person who so alleges.”
8. The common law test was set out in Banks v Goodfellow (1870) LR 5 QB 549, where the Court stated:
“A testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect…”
9. While the law presumes sanity, where suspicious circumstances exist, the burden shifts to the propounder of the will to remove those suspicions.
10. In Susan Wangui Gakuha v Stephen Mwangi Gakuha [2016] eKLR, the Court held:
“Where… there are suspicious circumstances, the onus would be on the person alleging to explain them to the satisfaction of the Court before the court can accept such evidence.”
(ii) Suspicious Circumstances
11. The following factors raise serious suspicion as it has emerged that ;
• The Will was allegedly executed in a foreign jurisdiction without involvement or knowledge of the majority of beneficiaries.
• The executor did not initially disclose the existence of the Will to other beneficiaries.
• A prior family distribution arrangement existed in 2008 inconsistent with the impugned will.
• The executor benefited substantially from the Will .
17. In cases of suspicion of validity of Wills courts require strict proof.
18. In Ndolo v Ndolo (2008) 1 KLR (G&F) 742, the Court stated:
“Since the Respondent was making serious charge of forgery or fraud, the standard of proof required… was obviously higher than that required in ordinary civil cases…”
(iii) Testamentary Capacity
12. The evidence adduce before Court establishes that:
• The Deceased was elderly and suffering from serious illness.
• He later died of dementia as per the death certificate filed by the respondents.
• The will was allegedly executed abroad while he was under the care and proximity of the executor.
• No medical evidence was produced by the Respondents to demonstrate the Deceased’s mental clarity at the time of execution.
13. While Section 5(4) places the burden on the Applicants, once credible evidence raising doubt as to capacity is presented, the evidential burden shifts to the respondents .
14. The 1st Respondent, being the sole executor and primary beneficiary of substantial portions of the estate, was under a duty to dispel doubts regarding capacity.
15. No attesting witness was called to testify on behalf of the respondents . No advocate who prepared the will testified. No medical evidence was tendered to confirm lucidity on 18th December 2014. The Will was thus not propounded as required by law .
16. In In re Estate of Harun Kirunge Mwangi (Deceased) [2021] eKLR, the Court emphasized the importance of medical evidence where incapacity is alleged. While absence of medical proof may defeat a bare allegation, in the present case the surrounding circumstances generate genuine doubt.
17. The Court finds that the suspicious circumstances surrounding the execution of the will were not sufficiently explained.
19. In the present case, the Court is not required to conclusively determine forgery beyond doubt, but whether the will has been proved to the required civil standard which is above balance of probability and below beyond reasonable doubt.
20. The Respondents have failed to call the attesting witnesses. Failure to call attesting witnesses where the will is seriously contested creates an evidentiary gap.
21. This Court is not satisfied that the will has been proved beyond suspicion.
D. Revocation under Section 76
22. Section 76 provides that a grant may be revoked if:
“(a) The proceedings to obtain the grant were defective in substance;
(b) The grant was obtained fraudulently by the making of a false statement or by concealment…;
(c) The grant was obtained by means of an untrue allegation of a fact essential in point of law…”
23. The power to revoke is discretionary.
24. In Re Estate of Magangi Obuki (Deceased) [2020] eKLR, quoting Albert Imbuga Kisigwa v Recho Kavai Kisigwa, the Court stated:
“Power to revoke a grant is a discretionary power that must be exercised judiciously… There must be evidence of wrong doing…”
25. In the present case, the grant was issued on the basis of a contested will whose validity has not been satisfactorily established.
26. The failure to involve beneficiaries and failure to disclose material surrounding circumstances renders the proceedings defective in substance.
27. In Vijay Morjaria v Nansingh Madhusingh Darbar (2000) eKLR, the Court of Appeal held:
“Fraudulent conduct must be distinctly alleged and distinctly proved…”
28. While fraud must be strictly proved, concealment under Section 76(b) does not require criminal proof.
a. The evidence reveals:
b. Limited disclosure to family members;
c. Disproportionate benefit to executor;
29. In family succession disputes, transparency is essential. The cumulative effect of these factors satisfies the Court that material non-disclosure tainted the proceess
30. In the present case, the grant was issued on the basis of a contested will whose validity has not been satisfactorily established.
31. The failure to involve beneficiaries and failure to disclose material surrounding circumstances renders the proceedings defective in substance.
32. The circumstances of this case proved, material non-disclosure and unexplained suspicious acts on the part of respondents are sufficient under Section 76(a) and (b).
33. A grant founded on a doubtful Will cannot stand.
E. Determination
30. The Court finds that:
• The will dated 18th December 2014 has not been proved free from suspicion.
• Testamentary capacity at the material time remains in serious doubt.
• The proceedings to obtain the grant were defective in substance.
• Grounds under Section 76(a) and (b) have been established.
31. This is a succession matter and inheritance is a birth right . The interest of Justice demands that the estate be administered on a proper and legally certain foundation.
32. The Applicants have established statutory grounds under Section 76 of the Law of Succession Act.
33. The grant cannot therefore stand.
34. There was an issue of accounts relating to LR No. Central Kitutu/Mwabundusi /1291 and to LR No. Central Kitutu/Mwabundusi /725 raised by the objectors in theses proceedings . It is important the full accounts be filed before the matter proceeds further.
G. Orders
34, Accordingly, the Court makes the following orders: Accordingly, this Court orders:
1. The Testamentary capacity of the deceased to make the Will dated was not proved as the Will was contested but was not propounded.
1. The Grant of Probate of Written Will issued to Henry Nyabuto Mangerere on 26th May 2023 is hereby revoked pursuant to Section 76 of the Law of Succession Act.
2. Henry Nyabuto Mang’erere to file full accounts of the estate in relation to LR No. central Kitutu/Mwabundusi /1291 and to LR No. Central Kitutu/Mwabundusi /725 from the date of death of deceased till the date of this judgment within 30 days from today.
3. The matter to proceed as intestate succession under the Law of succession Act.
4. A fresh Grant of Letters of Administration Intestate shall issue jointly to:
o Florence Bitengo Mang’erere,
o Lawrence Muma Mang’erere
o James Geseke Mang’erere
5. The administrators shall file:
o A full inventory of estate assets;
o A statement of accounts.
o Within 45 days from today.
6. Rental income shall continue to be deposited in a joint interest earning account in the names both firms of advocates on record until further orders of the court .
7. All parties are restrained from intermeddling with estate properties pursuant to Section 45 of the Law of Succession Act .
8. Mention on 1.7.26 for compliance and further orders
9. Each party to bear his won costs as this is a family matter.
T.A ODERA
JUDGE
25.2.26
Moronge : we seek a copy of the ruling and typed proceedings
Order : same be supplied.
T.A ODERA
JUDGE
25.2.26
DELIVERED VIRTUALLY VIA TEAMS PLATFORM VIA TEAMS PLATFORM ON THIS 25TH DAY OF FEBRUARY 2026 IN THE PRESENCE OF BOSIRE FOR APPLICANTS. MORONGE HOLDING BRIEF FOR ANYOKA FOR PETITIONER AND FOR 2ND RESPONDENT & CA KIPCHIRCHIR
A. Introduction
1. Before this Court is the Summons for Revocation of Grant dated 9th June 2023 and filed on 17th June 2023 pursuant to Sections 48 and 76 of the Law of Succession Act, Cap 160 Laws of Kenya and Rules 44 and 73 of the Probate and Administration Rules.
2. The Applicants, being beneficiaries of the estate of the late Marco Mangerere (hereinafter “the Deceased”), seek revocation of the Grant of Probate of Written Will issued to Henry Nyabuto Mangerere on 26th May 2023.
3. The Applicants contend that:
a) The alleged will dated 18th December 2014 was executed when the Deceased lacked testamentary capacity;
b) The will was prepared under suspicious circumstances;
c) Material facts were concealed from the Court;
d) The proceedings to obtain the grant were defective in substance.
4. The Respondents oppose the application and maintain that the will was validly executed and the Deceased was of sound mind.
5. The application was heard by viva voce evidence and written submissions filed. PW1, PW2 and PW3 testified in support of the Summons for revocation of grant . The testified that they did not consent to making of the grant probate , the deceased had no mental capacity to make the Will and thus the grant was obtained fraudulently and with concealment of material facts . Dw1 and Dw2 testified against the revocation arguing that the grant was procedurally obtained and that the Will is valid as deceased had capacity to enter into it.
B. Issues for Determination
6. I have carefully considered the objection, the replies and the able submissions by both counsel .The issues arising for for determination are:
i. Whether the will dated 18th December 2014 was valid.
ii. Whether the Applicants have satisfied the threshold for revocation under Section 76 of the Law of Succession Act.
C. Validity of the Will
(i) Legal Framework
7. Section 5(3) and (4) of the Law of Succession Act provides:
“Any person making or purporting to make a will shall be deemed to be of sound mind… unless he is, at the time of executing the will, in such a state of mind… as not to know what he is doing.
The burden of proof that a testator was… not of sound mind, shall be upon the person who so alleges.”
8. The common law test was set out in Banks v Goodfellow (1870) LR 5 QB 549, where the Court stated:
“A testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect…”
9. While the law presumes sanity, where suspicious circumstances exist, the burden shifts to the propounder of the will to remove those suspicions.
10. In Susan Wangui Gakuha v Stephen Mwangi Gakuha [2016] eKLR, the Court held:
“Where… there are suspicious circumstances, the onus would be on the person alleging to explain them to the satisfaction of the Court before the court can accept such evidence.”
(ii) Suspicious Circumstances
11. The following factors raise serious suspicion as it has emerged that ;
• The Will was allegedly executed in a foreign jurisdiction without involvement or knowledge of the majority of beneficiaries.
• The executor did not initially disclose the existence of the Will to other beneficiaries.
• A prior family distribution arrangement existed in 2008 inconsistent with the impugned will.
• The executor benefited substantially from the Will .
17. In cases of suspicion of validity of Wills courts require strict proof.
18. In Ndolo v Ndolo (2008) 1 KLR (G&F) 742, the Court stated:
“Since the Respondent was making serious charge of forgery or fraud, the standard of proof required… was obviously higher than that required in ordinary civil cases…”
(iii) Testamentary Capacity
12. The evidence adduce before Court establishes that:
• The Deceased was elderly and suffering from serious illness.
• He later died of dementia as per the death certificate filed by the respondents.
• The will was allegedly executed abroad while he was under the care and proximity of the executor.
• No medical evidence was produced by the Respondents to demonstrate the Deceased’s mental clarity at the time of execution.
13. While Section 5(4) places the burden on the Applicants, once credible evidence raising doubt as to capacity is presented, the evidential burden shifts to the respondents .
14. The 1st Respondent, being the sole executor and primary beneficiary of substantial portions of the estate, was under a duty to dispel doubts regarding capacity.
15. No attesting witness was called to testify on behalf of the respondents . No advocate who prepared the will testified. No medical evidence was tendered to confirm lucidity on 18th December 2014. The Will was thus not propounded as required by law .
16. In In re Estate of Harun Kirunge Mwangi (Deceased) [2021] eKLR, the Court emphasized the importance of medical evidence where incapacity is alleged. While absence of medical proof may defeat a bare allegation, in the present case the surrounding circumstances generate genuine doubt.
17. The Court finds that the suspicious circumstances surrounding the execution of the will were not sufficiently explained.
19. In the present case, the Court is not required to conclusively determine forgery beyond doubt, but whether the will has been proved to the required civil standard which is above balance of probability and below beyond reasonable doubt.
20. The Respondents have failed to call the attesting witnesses. Failure to call attesting witnesses where the will is seriously contested creates an evidentiary gap.
21. This Court is not satisfied that the will has been proved beyond suspicion.
D. Revocation under Section 76
22. Section 76 provides that a grant may be revoked if:
“(a) The proceedings to obtain the grant were defective in substance;
(b) The grant was obtained fraudulently by the making of a false statement or by concealment…;
(c) The grant was obtained by means of an untrue allegation of a fact essential in point of law…”
23. The power to revoke is discretionary.
24. In Re Estate of Magangi Obuki (Deceased) [2020] eKLR, quoting Albert Imbuga Kisigwa v Recho Kavai Kisigwa, the Court stated:
“Power to revoke a grant is a discretionary power that must be exercised judiciously… There must be evidence of wrong doing…”
25. In the present case, the grant was issued on the basis of a contested will whose validity has not been satisfactorily established.
26. The failure to involve beneficiaries and failure to disclose material surrounding circumstances renders the proceedings defective in substance.
27. In Vijay Morjaria v Nansingh Madhusingh Darbar (2000) eKLR, the Court of Appeal held:
“Fraudulent conduct must be distinctly alleged and distinctly proved…”
28. While fraud must be strictly proved, concealment under Section 76(b) does not require criminal proof.
a. The evidence reveals:
b. Limited disclosure to family members;
c. Disproportionate benefit to executor;
29. In family succession disputes, transparency is essential. The cumulative effect of these factors satisfies the Court that material non-disclosure tainted the proceess
30. In the present case, the grant was issued on the basis of a contested will whose validity has not been satisfactorily established.
31. The failure to involve beneficiaries and failure to disclose material surrounding circumstances renders the proceedings defective in substance.
32. The circumstances of this case proved, material non-disclosure and unexplained suspicious acts on the part of respondents are sufficient under Section 76(a) and (b).
33. A grant founded on a doubtful Will cannot stand.
E. Determination
30. The Court finds that:
• The will dated 18th December 2014 has not been proved free from suspicion.
• Testamentary capacity at the material time remains in serious doubt.
• The proceedings to obtain the grant were defective in substance.
• Grounds under Section 76(a) and (b) have been established.
31. This is a succession matter and inheritance is a birth right . The interest of Justice demands that the estate be administered on a proper and legally certain foundation.
32. The Applicants have established statutory grounds under Section 76 of the Law of Succession Act.
33. The grant cannot therefore stand.
34. There was an issue of accounts relating to LR No. Central Kitutu/Mwabundusi /1291 and to LR No. Central Kitutu/Mwabundusi /725 raised by the objectors in theses proceedings . It is important the full accounts be filed before the matter proceeds further.
G. Orders
34, Accordingly, the Court makes the following orders: Accordingly, this Court orders:
1. The Testamentary capacity of the deceased to make the Will dated was not proved as the Will was contested but was not propounded.
1. The Grant of Probate of Written Will issued to Henry Nyabuto Mangerere on 26th May 2023 is hereby revoked pursuant to Section 76 of the Law of Succession Act.
2. Henry Nyabuto Mang’erere to file full accounts of the estate in relation to LR No. central Kitutu/Mwabundusi /1291 and to LR No. Central Kitutu/Mwabundusi /725 from the date of death of deceased till the date of this judgment within 30 days from today.
3. The matter to proceed as intestate succession under the Law of succession Act.
4. A fresh Grant of Letters of Administration Intestate shall issue jointly to:
o Florence Bitengo Mang’erere,
o Lawrence Muma Mang’erere
o James Geseke Mang’erere
5. The administrators shall file:
o A full inventory of estate assets;
o A statement of accounts.
o Within 45 days from today.
6. Rental income shall continue to be deposited in a joint interest earning account in the names both firms of advocates on record until further orders of the court .
7. All parties are restrained from intermeddling with estate properties pursuant to Section 45 of the Law of Succession Act .
8. Mention on 1.7.26 for compliance and further orders
9. Each party to bear his won costs as this is a family matter.
T.A ODERA
JUDGE
25.2.26
Moronge : we seek a copy of the ruling and typed proceedings
Order : same be supplied.
T.A ODERA
JUDGE
25.2.26
DELIVERED VIRTUALLY VIA TEAMS PLATFORM VIA TEAMS PLATFORM ON THIS 25TH DAY OF FEBRUARY 2026 IN THE PRESENCE OF BOSIRE FOR APPLICANTS. MORONGE HOLDING BRIEF FOR ANYOKA FOR PETITIONER AND FOR 2ND RESPONDENT & CA KIPCHIRCHIR