[1] The two petitioners, Abraham Kipsongok Rop and Evans Karoney Barbuch, petitioned the Court for Grant of Probate in respect of the Will of the deceased, Philip Kibet Martim , vide their Petition dated 14 th March 2024. They averred that at the time of his demise on 10 th October 2023, the deceased was domiciled in Kenya. They attached a copy of the Certificate of Death to their Petition as well as the deceased’s Will dated 10 th January 2021.
[2] The Petitioners therefore sought to be issued with Grant of Probate in accordance with the provisions of Section 5 of the Law of Succession Act (hereinafter, “the Act”). They pointed out that they have been named in the said Will as the executors.
[3] The Petition was processed and the requisite notices issued. In particular, the Deputy Registrar issued a Notice of the filing of the Petition for Grant dated 17 th May 2024. The notice invited any objections to the proposed Grant to be lodged in the prescribed form within 30 days of the date of publication of the Notice. It was thereupon that the objectors Portinato Bett, Lameck Bett, Patro bа Chepchumba Maritim, Ascah Jepkoech Maritim and Rupo Jeptepkeny Soet (hereinafter “the objectors”) filed their Objection to the making of grant for the following grounds:
[a] That deceased lacked the essential testamentary capacity to make a Will or understand the nature of the alleged Will.
[b] At the time of making the alleged Will, the deceased was 97 years old and as such he lacked testamentary capacity as he was physically and mentally incapacitated hence lacking sound mind, sound memory and sound understanding of the alleged Will.
[c] The alleged Will is invalid as it was not witnessed by two independent witnesses as required by Section 11 (c) of the Law of Succession Act. Furthermore, the sole witness, Gideon Tororei, is a stranger to the family of the deceased hence confirming the suspicion around the alleged Will.
[d] The alleged Will was procured through fraud, coercion, importunity and mistake by those who are designed to benefit immensely from it as the deceased did not know or approve contents of the alleged Will.
[e] The alleged Will was written under suspicious circumstances as it is heavily skewed in favour of some of the beneficiaries and in particular, Eliseba Arusei , a daughter-in-law of the deceased, and her husband, Meshack Kiprop Kosgey , who stand to benefit immensely from the Will. In addition, the matrimonial home of the deceased was bequeathed to the said Eliseba Arusei, who is not a direct beneficiary under the Law of Succession Act, in total disregard of the deceased's children further fueling suspicion. Eliseba Arusei being legally married to the deceased's son, Meshack Kiprop Kosgey , was not entitled to receive an independent bequest considering that her husband was given an inheritance.
[f] The alleged Will is not fair in terms of distribution of the estate and it is skewed in favour of some of the beneficiaries whereas other beneficiaries of the estate were left out of.
[g] The executors named in the alleged Will cannot be entrusted to faithfully administer the estate of the deceased according to law.
[h] The purported Will is invalid, all facts and circumstances considered.
[4] The Objection is supported by affidavits sworn by the objectors whose contents are similar. They averred that the deceased, Philip Kibet Martim, who was their father died on the 10 th October 2023. They objected to probate of the deceased’s Will being granted on the grounds that the said Will is invalid. They contended the deceased lacked the essential testamentary capacity and freedom to make a Will or understand the nature of the alleged Will. They pointed out that, at the time of making the alleged Will, the deceased was 97 years and therefore lacked the testamentary capacity as he was physically and mentally incapacitated to the extent that his mental capacity was affected.
[5] It was further the contention of the objectors that the alleged Will is invalid for having been attested to by Masai C Jane , Advocate in contravention of Section 11(c) of the Law of Succession Act. They averred that an advocate could not be an attestator of the Will because she was the advocate who prepared the Will. As for the other witness, Gideon Tororei , the objectors averred that he is a complete stranger to the family of the deceased; hence raising suspicion on the circumstances under which the Will was executed, if at all.
[6] The objectors also averred that the Will is void in so far as it is skewed in favour of some beneficiaries, particularly Eliseba Arusei , a daughter-in-law of the deceased and her husband, Meshack Kiprop Koskey who stand to benefit immensely from the Will. They also questioned whether indeed the deceased could have consciously bequeathed his matrimonial home to Eliseba Arusei who is not a direct beneficiary under the Law of Succession Act and in total disregard of his children. In their averment, Eliseba Arusei being legally married to the deceased's son, Meshack Kiprop Kosgey , was not entitled to an independent bequest from her husband’s.
[7] The objectors surmised that since Eliseba Arusei lived with the deceased from the year 2020 to the time of his death further, she had the opportunity to influence the writing of the Will by the deceased in her favour. They therefore averred that the Will was procured through fraud, coercion and importunity by those who sought to unlawfully and illegally benefit from this scheme. They posited that the executors of the will, who are the petitioners herein, cannot be trusted to administer the estate fairly and justly as by law required.
[8] In response to the Objection, the petitioners filed a Replying affidavit dated 2 nd May 2024, sworn by Abraham Kipsongok Rop (the 1 st petitioner). He averred inter alia that the Objection herein is misconceived, bad in law, brought in bad faith and marred with falsehoods. She reiterated that the deceased passed on the 10 th day of October, 2023; and that he left a written Will wherein he appointed them as the executors of his Will. They further deposed that the objectors were aware of the Will and its contents as the same was read and explained to them.
[9] The petitioner further averred that the Will was executed by the deceased person in presence of two independent witnesses, namely, Masai C Jane and Gideon Tororei who are persons not related to the deceased person herein and are not beneficiaries to his Will. They further deposed that they only became aware of the contents of the Will when the same was read to the family members including the objectors herein forty days after burial and were informed that they had been appointed by the deceased as the executors of his Will.
[10] The petitioners vouched for their character and standing in society by averring that they are respected members of the society, being the retired Area Chief of Kipkaren Location within Nandi County and the Chairperson of the local AIC church, Laboret. The 1 st petitioner also mentioned that he is a retired Education Officer in Nandi County and therefore the allegation of not being trusted to execute the subject Will is misleading and far-fetched.
[11] In response to the objectors’ averments as to the age of the deceased, the petitioners deposed that the age of a testator does not invalidate a will unless it is proved that it rendered him incapable of understanding his affairs. In their view, the objectors failed to demonstrate that the deceased was incapable of managing his affairs. They pointed out that the deceased was a member of AIC Laboret Church and at no time did he lose his memory or suffer any condition that impaired his judgement. They were therefore categorical that the deceased was not amenable to any form of manipulation or coercion at the material time and added that he was in good health and in full control of his faculties and would advise members and leaders of the church.
[12] The petitioners further deposed that the deceased made an oral Will on how his burial was to be conducted including the person who was to preside over his burial. They pointed out that the deceased thereby named Reverend Benjamin Samoei, who was the Assistant Bishop at the time, to preside over his burial; which preference was honoured by everybody including the objectors. They pointed out that the deceased also directed that he should not be taken to any hospital, that his body was not to be taken to any morgue and that the body be buried within three days of his death. The petitioners stated that this wish was also honoured by all members of the family including the objectors and the church.
[13] The petitioners therefore asserted that the Will is valid and that the mere fact that some of the family members of the deceased were left out cannot be a ground to invalidate a Will. They added that the objectors had not demonstrated that the testator was manipulated, coerced or pressurized by anyone to make the Will in a certain manner. They also mentioned, as a matter of fact, that the testator was taken care of by Eliseba Arusei from 2020 up to the time of his death and both were living in the house which the testator bequeathed to her. They also averred that the beneficiaries of the Will were bequeathed the pieces of land they occupied and used during the lifetime of the testator. They accordingly opposed the Objection, terming it a waste of the Court’s time and resources.
[14] The petitioners filed a Further Affidavit sworn on 29 th April 2024 by the 1 st petitioner in response to the affidavits sworn by the objectors and one Emily Cheptoo Lelei . They averred inter alia that Emily Cheptoo Lelei is not and has never been an objector in this cause and therefore her affidavit of 6 th October 2025, should be struck out. They reiterated their stance that the objectors had not demonstrated by way of cogent evidence that the testator lacked testamentary capacity due to physical or mental incapacitation.
[15] Further to the foregoing, the petitioners discounted the contention by the objectors that the attestators were persons hitherto unknown to them. They averred that that fact alone cannot affect the validity of the Will as it is not a requirement of the law. The respondents annexed to their Further Affidavit several other affidavits, including affidavits by Jane C. Masai, Eliseba Arusei, Rev. Benjamin Samoei and Enos Kipruto Kosgey to buttress their assertions. Thus, the petitioners prayed that the Objection be dismissed with costs.
[16] In the affidavit of Masai C Jane, an advocate of the High Court of Kenya, she averred that the deceased person was their client at MAC Law Advocates before his death; that she received a call from the deceased person requesting them to visit his home in Kipkaren Salient; that she honored the invite on 10 th January 2021 and went to his house where she found him with one Gideon Tororei . Advocate Masai further deposed that while at his house, the deceased informed her that he wanted to make a Will and went ahead to enumerate how his properties were to be shared among the beneficiaries. She confirmed that she had the will drafted in office and upon satisfying himself as to the contents, the deceased executed the same in her presence and in the presence of Gideon Tororei .
[17] Advocate Masai further deposed that at the time of executing the Will, there was no indication of any physical or mental incapacity on the part of the testator or any form of coercion that affected his free will. She concluded her affidavit by stating that after the death of the deceased person she read the will to the family members and left a copy of the same with one of the named executors as per the deceased's wishes.
[18] On her part, Eliseba Arusei averred, inter alia , that just like other family members, she came to know of the existence of the Will when Advocate Masai announced that the deceased had left a Will. She denied having taken part in the preparation of the same or having influenced the deceased to make his Will in a particular way. She also deposed that the deceased retained his memory and mental health and was therefore in a position to make a Will. She denied that she is the greatest beneficiary of the deceased Will and pointed out that the deceased person bequeathed her only 2.0 acres of his free property.
[19] The third annexed affidavit is the affidavit of Reverend Benjamin Samoei who stated that he is a retired Assistant Bishop of the African Inland Church (AIC). He stated that the deceased person herein was personally known to him as a staunch member of the AIC church until his death and as an elder of the church, he was always on hand to advise leaders and members of the church.
[20] Rev. Samoei confirmed that the deceased orally expressed his wishes prior to his death on how his body was to be buried and who was to preside over his funeral service. He told him and other members of the church that he would be buried within three (3) days of his death and that he would preside over the burial and no one else to speak during the service. Rev. Samoei indicated that the wishes of the deceased were respected both by the family and the church as his body was buried within three days of his death and he personally preached during the burial service. He also mentioned that the deceased person had his memory, understanding and comprehension intact until his death.
[21] The application was canvassed by way of written submissions. The objectors filed written submissions dated 9 th October 2025 through the firm of M/s Z.K. Yego Law Offices . They framed two issues for determination:
[a] Whether the alleged written Will is valid and
[b] Whether the deceased made reasonable provisions for all his dependents in his alleged written Will.
[22] On whether the alleged written Will is valid, the objectors submitted that Section 8 of the Law of Succession Act provides that a Will could either be written or oral. They conceded that they were aware of the Will dated 10 th January, 2021 which was allegedly signed by the deceased in the presence of Gideon Tororei and Advocate Masai C Jane. They however questioned the validity of the Will. On the authority of In re Estate of Julius Mimano (Deceased) [2019] КЕНС 10103 (KLR), the objectors submitted that the validity of a Will is dependent on two principal factors, namely the capacity of the testator to make a will at the material time and compliance with the formal requirements for the making of a will.
[23] On the capacity of the deceased, the objectors relied on Section 5 of the Laws of Succession Act on the prerequisites. They also made reference to the cases of Banks v Goodfellow [1870] LR 5 QB 549, John Kinuthia Githinji v Githua Kiarie and others, Civil Appeal No. 63 of 1984, Karanja and another v Karanja [2002] 2 KLR 22, and In the Matter of the Estate of James Ngengi Muigai, High Court Succession Cause No. 523 of 1996, for the proposition that where, on the face of it, the will appears to have been properly executed by a person of age and sound mind, a presumption of due execution arises; but that presumption may be displaced by circumstances emerging from the evidence adduced which tend to counterbalance the presumption.
[24] The objectors acknowledged that, to rebut the presumption of testamentary capacity, the burden of proof lies with the person alleging lack of knowledge and approval, and existence of suspicious circumstances. They submitted that the deceased, Philip Kibet Martim, being 97 years at the time of execution of the Will, lacked the mental and physical capacity to understand the nature or content of the document that he was made to sign. On this point they relied on the decision in Re Estate of Julius Mimano (Deceased) [2019] KEHC 10103 (KLR).
[25] The objectors’ urged the Court to take into account the fact that the Will was skewed in favour of some of the beneficiaries, particularly Eliseba Arusei , a daughter-in-law of the deceased and her husband, Meshack Kiprop Kosgey . They pointed out that the couple is poised to receive a total of 12 acres, the largest share of the estate property. They also urged the Court to note that Eliseba was also bequeathed the deceased's house and all the household items as well as a residential plot measuring approximately 50 by 100 yet, as a daughter-in-law she also stands to benefit through her husband, Meshack Kiprop Kosgey.
[26] The objectors also submitted that the fact that Eliseba had been taking care of the deceased, who lived with her from the year 2020 to the time of his death on 10 th October, 2023, was sufficient proof that jointly with her husband, they had the opportunity to play a role in the making of the Will and influencing its content. They relied on Re Estate of Julius Mimano (Deceased) [2019] КЕНС 10103 (KLR in support of their submissions.
[27] The objectors also challenged the Will on the ground that it does not meet the formal requirements of validity of a written will as stipulated in Section 11(c) of the Act. They argued that the execution of the written Will in the presence of Masai C Jane and Gideon Tororei was in contravention of Section 11(c) of the Act in that Masai C Jane could not qualify as an independent witness in that she was the same person who drew the Will on behalf of the deceased. They also urged the Court to note that the said Advocate was the very person who summoned the family members of the deceased to a meeting on the 20 th October, 2023 at the District Officer's Office in Kipkaren Salient where she informed them of the Will left behind by the deceased. In their submission this shows that she was an integral part of the procurement of the Will.
[28] Therefore, the objectors contended that since the only other witness, Gideon Tororei , is a stranger to the family, the Will was not properly attested as by law required.
[29] The objectors relied on Section 26 of the Act and submitted that the deceased in his Will, failed to adequately provide for some of his dependents. They contended that the Will was skewed to benefit some individuals such as Eliseba Arusei while others were left out of the Will, thereby denying them their rightful share of the deceased's estate. The objectors relied on In re Estate of Imoli Luhatse Paul (Deceased) [2021] КЕНС 1389 (KLR) where it was held that since daughters-in-law have no rights of inheritance from the estates of their fathers-in-law, they can only approach the court upon obtaining representation to the estates of the persons on whose account they claim.
[30] For the reasons aforestated, the objectors urged the Court to find that sufficient justification has been made for the Court's interference with the testamentary freedom of the deceased. They relied on the decision of the Court of Appeal in the case of John Kinuthia Githinji v Githua Kiarie, & Others, Nairobi Civil Appeal No. 99 of 1989 whereby the observations of Cockburn, J. in the case of Banks v Good Fellow [1870] LR 5 QB 549 were reiterated as follows:
"The law of every civilized people concedes to the owner of property the rights of determining, by his last will, either in whole or part, to whom the effects which he leaves behind him shall pass...A moral responsibility of no ordinary importance attaches to the exercise of the right given. The instincts and affections of mankind, in the vast majority of instances, will lead men to make provisions for these who are nearest to them in kindred and who, in life have been the object of their affection...The same motives will influence him in the exercise of the right of disposal when secured to him by law. Hence arises reasonable and well warranted expectation on the part of a man's kindred surviving him, that on his death effects shall become theirs, instead of being to strangers. To disappoint the expectation thus created and to disregard the claims of kindred to the inheritance is to mock the common sentiments of mankind and to violate what all men deeming an obligation in moral law...”
[31] In the premises, the objectors submitted that testamentary freedom is not absolute. It was their contention that the fact that the Will does not provide for the deceased’s daughters, being the 3 rd to 6 th Objectors, is sufficient ground to invalidate the Will. They urged the Court to allow their Objection dated 15 th April 2024 with costs.
[32] The petitioners filed written submissions dated 15 th May 2026 through the firm of M/S Cheruiyot Melly & Associates Advocates wherein their proposed issues for determination are:
[a] Whether the Will dated 10 th January 2021 is valid;
[b] Whether the issue of adequate provision can be raised at this stage; and
[c] Who bears the costs of the Objection.
[33] On whether the Will dated 10 th January 2021 is valid, the petitioners cited Section 11 of the Act and submitted that a cursory look at the Will shows that the testator executed the Will in the presence of Masai C. Jane and Gideon Tororei . They added that there is no provision of law excluding advocates from being witnesses to an execution of a will. They also submitted that the Will merely shows that Masai C. Jane was a witness and that the will was drawn by the firm MAC Law Advocates. In addition, they submitted that there is no known law requiring that a witness to a Will must be known to the family of the testator.
[34] On the claim that the testator was 97 years old, the petitioners submitted age does not affect testamentary capacity of a testator unless demonstrated that it rendered him incapable of understanding his affairs. They added that the burden of proof was on the objectors to demonstrate that the deceased lacked the requisite testamentary capacity at the material time. In this regard, they made reference to Section 109 of the Evidence Act, Chapter 80 of the Laws of Kenya.
[35] On the objectors’ allegation that the will was written under suspicious circumstances as it is heavily skewed in favour of some beneficiaries, the petitioners relied on the decision In Re Estate Of Julius Mimano (Deceased) [2019] KEHC 10103 (KLR ) where Hon. Musyoka, J. stated that:
“The allegation that a will was made under a cloud of suspicion raises the question of fraud. The fact that the circumstances of the making of a will were suspicions would suggest that the making of the will was procured by fraud or fraudulent means. The principle being that a testator must not only know the contents of the document that he signed as his will, he must also have approved of those contents. The approval being indication that it reflected his wishes and intention. The suspicion would arise if it appears from the circumstances that the testator did not either know of the contents or, knowing of the contents, did not approve them. It would particularly arise in cases where the person propounding the will takes a substantial benefit under the will.
[36] In the petitioners’ submission, the objectors failed to prove their allegations of fraud or that Eliseba and her husband participated in any way in the making of the Will. They contended that the fact that some beneficiaries were not provided for does not of itself provide sufficient justification for invalidating the Will. In support of this argument, the petitioners relied on Re Estate of Philip Nthenge Mukonyo (Deceased) [2018] eKLR, Curryian Okumu v Perez Okumu & 2 Others [2016] eKLR and James Maina Anyanga v Lorna Yimbiha Ottaro & 4 Others [2014] eKLR.
[37] The petitioners also addressed the Court on whether the issue of adequate provision can be raised at this stage. They urged that the current Objection is dealing with the validity of the Will and not the confirmation of grant of probate. They posited that the application for adequate provision can be made before confirmation of the grant of probate and not before the grant is issued thus making the issue of adequate provision at this stage premature. They submitted that the objectors should have waited for grant of probate to be issued then raise the issue of adequate provision before the grant of probate is confirmed.
[38] The petitioners asked to be paid the costs of the Objection since they are not members of the testator’s family or beneficiaries of the estate and would not have otherwise incurred any expense but for the Objection application.
[39] I have carefully considered the pleadings as well as the submissions by the parties and the following issues arise for determination:
[a] Whether the deceased, Philip Kibet Maritim, left a valid Will.
[b] Whether the deceased made provisions for all his dependents.
A. Whether the late Philip Kibet Maritim left a valid Will:
[40] Section 5 of the Law of Succession Act provides that:
(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.
(2) A female person, whether married or unmarried, has the same capacity to make a will as does a male person.
(3) Any person making or purporting to make a will shall be deemed to be of sound mind for the purpose of this section unless he is, at the time of executing the will, in such a state of mind, whether arising from mental or physical illness, drunkenness, or from any other cause, as not to know what he is doing.
(4) The burden of proof that a testator was, at the time he made any will, not of sound mind, shall be upon the person who so alleges.
[41] Further, Section 11 of the Act provides as follows:
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.”
[42] The evidentiary burden was on the objectors to prove that their assertions. Indeed, the Evidence Act is explicit at Sections 107 to 109 that:
107.(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.
108.The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
109.The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.
[43] The contested Will is dated 10 th January 2021. On the face of it, it is drawn by MAC Law Advocates. The said will bears three signature marks on the bottom first page and the last page it shows that it was signed by the deceased in presence of Masai C Jane , Advocate and Gideon Tororei . The Objectors did not contest the signature of the deceased or the witnesses, but contended that Gideon Tororei is not known to the family and that Jane C Masai , having drawn the Will is not an independent or competent witness. Therefore, the question to pose is whether the Will was attested by two competent and independent witnesses.
[44] Section 3 of the Act defines a "competent witness" to mean a person of sound mind and full age. Equally this section defines "independent witness" to mean a witness who is not a beneficiary under a will or the spouse of any such beneficiary. There is no doubt that on both fronts both Jane C Masai and Gideon Tororei are qualified.
[45] On whether Jane C. Masai was conflicted in the matter Section 11 is silent and no evidence was adduced to demonstrate that Jane C Masai is the only advocate working at MAC LAW ADVOCATES or even that she personally drew the Will. Attending to a client on behalf of a law firm does not necessarily disqualify an advocate from witnessing a Will as long as they pass the two-fold test prescribed in Section 11 . I find succor in this regard in Re Estate of Mbugua Kihanya (Deceased) (Succession Cause 82 of 2016) [2023] KEHC 1618 (KLR) (10 March 2023) (Judgment) in which a similar issue arose as to whether an advocate is a competent and independent witness for purposes of Section 11 . The court held as follows:
31.There is no allegation that the two witnesses of deceased’s Will, who include the advocate who drew the Will were not competent or not independent witnesses. I could find no provision in cap 160 which disqualified the firm that drew a Will from being witnesses of the testator’s signature. In this regard, I am persuaded by the decision of Justice Mumbua T. Matheka in the case In re estate of Gichuhi Wakano alias Wilfred Wakano Gichuhi (deceased)(2022) eKLR
“The 3rd protestor in particular submitted that the will was attested to by Mungai Mbugua who was an advocate. That the said advocate cannot be the advocate who drew
[...truncated]
[2] The Petitioners therefore sought to be issued with Grant of Probate in accordance with the provisions of Section 5 of the Law of Succession Act (hereinafter, “the Act”). They pointed out that they have been named in the said Will as the executors.
[3] The Petition was processed and the requisite notices issued. In particular, the Deputy Registrar issued a Notice of the filing of the Petition for Grant dated 17 th May 2024. The notice invited any objections to the proposed Grant to be lodged in the prescribed form within 30 days of the date of publication of the Notice. It was thereupon that the objectors Portinato Bett, Lameck Bett, Patro bа Chepchumba Maritim, Ascah Jepkoech Maritim and Rupo Jeptepkeny Soet (hereinafter “the objectors”) filed their Objection to the making of grant for the following grounds:
[a] That deceased lacked the essential testamentary capacity to make a Will or understand the nature of the alleged Will.
[b] At the time of making the alleged Will, the deceased was 97 years old and as such he lacked testamentary capacity as he was physically and mentally incapacitated hence lacking sound mind, sound memory and sound understanding of the alleged Will.
[c] The alleged Will is invalid as it was not witnessed by two independent witnesses as required by Section 11 (c) of the Law of Succession Act. Furthermore, the sole witness, Gideon Tororei, is a stranger to the family of the deceased hence confirming the suspicion around the alleged Will.
[d] The alleged Will was procured through fraud, coercion, importunity and mistake by those who are designed to benefit immensely from it as the deceased did not know or approve contents of the alleged Will.
[e] The alleged Will was written under suspicious circumstances as it is heavily skewed in favour of some of the beneficiaries and in particular, Eliseba Arusei , a daughter-in-law of the deceased, and her husband, Meshack Kiprop Kosgey , who stand to benefit immensely from the Will. In addition, the matrimonial home of the deceased was bequeathed to the said Eliseba Arusei, who is not a direct beneficiary under the Law of Succession Act, in total disregard of the deceased's children further fueling suspicion. Eliseba Arusei being legally married to the deceased's son, Meshack Kiprop Kosgey , was not entitled to receive an independent bequest considering that her husband was given an inheritance.
[f] The alleged Will is not fair in terms of distribution of the estate and it is skewed in favour of some of the beneficiaries whereas other beneficiaries of the estate were left out of.
[g] The executors named in the alleged Will cannot be entrusted to faithfully administer the estate of the deceased according to law.
[h] The purported Will is invalid, all facts and circumstances considered.
[4] The Objection is supported by affidavits sworn by the objectors whose contents are similar. They averred that the deceased, Philip Kibet Martim, who was their father died on the 10 th October 2023. They objected to probate of the deceased’s Will being granted on the grounds that the said Will is invalid. They contended the deceased lacked the essential testamentary capacity and freedom to make a Will or understand the nature of the alleged Will. They pointed out that, at the time of making the alleged Will, the deceased was 97 years and therefore lacked the testamentary capacity as he was physically and mentally incapacitated to the extent that his mental capacity was affected.
[5] It was further the contention of the objectors that the alleged Will is invalid for having been attested to by Masai C Jane , Advocate in contravention of Section 11(c) of the Law of Succession Act. They averred that an advocate could not be an attestator of the Will because she was the advocate who prepared the Will. As for the other witness, Gideon Tororei , the objectors averred that he is a complete stranger to the family of the deceased; hence raising suspicion on the circumstances under which the Will was executed, if at all.
[6] The objectors also averred that the Will is void in so far as it is skewed in favour of some beneficiaries, particularly Eliseba Arusei , a daughter-in-law of the deceased and her husband, Meshack Kiprop Koskey who stand to benefit immensely from the Will. They also questioned whether indeed the deceased could have consciously bequeathed his matrimonial home to Eliseba Arusei who is not a direct beneficiary under the Law of Succession Act and in total disregard of his children. In their averment, Eliseba Arusei being legally married to the deceased's son, Meshack Kiprop Kosgey , was not entitled to an independent bequest from her husband’s.
[7] The objectors surmised that since Eliseba Arusei lived with the deceased from the year 2020 to the time of his death further, she had the opportunity to influence the writing of the Will by the deceased in her favour. They therefore averred that the Will was procured through fraud, coercion and importunity by those who sought to unlawfully and illegally benefit from this scheme. They posited that the executors of the will, who are the petitioners herein, cannot be trusted to administer the estate fairly and justly as by law required.
[8] In response to the Objection, the petitioners filed a Replying affidavit dated 2 nd May 2024, sworn by Abraham Kipsongok Rop (the 1 st petitioner). He averred inter alia that the Objection herein is misconceived, bad in law, brought in bad faith and marred with falsehoods. She reiterated that the deceased passed on the 10 th day of October, 2023; and that he left a written Will wherein he appointed them as the executors of his Will. They further deposed that the objectors were aware of the Will and its contents as the same was read and explained to them.
[9] The petitioner further averred that the Will was executed by the deceased person in presence of two independent witnesses, namely, Masai C Jane and Gideon Tororei who are persons not related to the deceased person herein and are not beneficiaries to his Will. They further deposed that they only became aware of the contents of the Will when the same was read to the family members including the objectors herein forty days after burial and were informed that they had been appointed by the deceased as the executors of his Will.
[10] The petitioners vouched for their character and standing in society by averring that they are respected members of the society, being the retired Area Chief of Kipkaren Location within Nandi County and the Chairperson of the local AIC church, Laboret. The 1 st petitioner also mentioned that he is a retired Education Officer in Nandi County and therefore the allegation of not being trusted to execute the subject Will is misleading and far-fetched.
[11] In response to the objectors’ averments as to the age of the deceased, the petitioners deposed that the age of a testator does not invalidate a will unless it is proved that it rendered him incapable of understanding his affairs. In their view, the objectors failed to demonstrate that the deceased was incapable of managing his affairs. They pointed out that the deceased was a member of AIC Laboret Church and at no time did he lose his memory or suffer any condition that impaired his judgement. They were therefore categorical that the deceased was not amenable to any form of manipulation or coercion at the material time and added that he was in good health and in full control of his faculties and would advise members and leaders of the church.
[12] The petitioners further deposed that the deceased made an oral Will on how his burial was to be conducted including the person who was to preside over his burial. They pointed out that the deceased thereby named Reverend Benjamin Samoei, who was the Assistant Bishop at the time, to preside over his burial; which preference was honoured by everybody including the objectors. They pointed out that the deceased also directed that he should not be taken to any hospital, that his body was not to be taken to any morgue and that the body be buried within three days of his death. The petitioners stated that this wish was also honoured by all members of the family including the objectors and the church.
[13] The petitioners therefore asserted that the Will is valid and that the mere fact that some of the family members of the deceased were left out cannot be a ground to invalidate a Will. They added that the objectors had not demonstrated that the testator was manipulated, coerced or pressurized by anyone to make the Will in a certain manner. They also mentioned, as a matter of fact, that the testator was taken care of by Eliseba Arusei from 2020 up to the time of his death and both were living in the house which the testator bequeathed to her. They also averred that the beneficiaries of the Will were bequeathed the pieces of land they occupied and used during the lifetime of the testator. They accordingly opposed the Objection, terming it a waste of the Court’s time and resources.
[14] The petitioners filed a Further Affidavit sworn on 29 th April 2024 by the 1 st petitioner in response to the affidavits sworn by the objectors and one Emily Cheptoo Lelei . They averred inter alia that Emily Cheptoo Lelei is not and has never been an objector in this cause and therefore her affidavit of 6 th October 2025, should be struck out. They reiterated their stance that the objectors had not demonstrated by way of cogent evidence that the testator lacked testamentary capacity due to physical or mental incapacitation.
[15] Further to the foregoing, the petitioners discounted the contention by the objectors that the attestators were persons hitherto unknown to them. They averred that that fact alone cannot affect the validity of the Will as it is not a requirement of the law. The respondents annexed to their Further Affidavit several other affidavits, including affidavits by Jane C. Masai, Eliseba Arusei, Rev. Benjamin Samoei and Enos Kipruto Kosgey to buttress their assertions. Thus, the petitioners prayed that the Objection be dismissed with costs.
[16] In the affidavit of Masai C Jane, an advocate of the High Court of Kenya, she averred that the deceased person was their client at MAC Law Advocates before his death; that she received a call from the deceased person requesting them to visit his home in Kipkaren Salient; that she honored the invite on 10 th January 2021 and went to his house where she found him with one Gideon Tororei . Advocate Masai further deposed that while at his house, the deceased informed her that he wanted to make a Will and went ahead to enumerate how his properties were to be shared among the beneficiaries. She confirmed that she had the will drafted in office and upon satisfying himself as to the contents, the deceased executed the same in her presence and in the presence of Gideon Tororei .
[17] Advocate Masai further deposed that at the time of executing the Will, there was no indication of any physical or mental incapacity on the part of the testator or any form of coercion that affected his free will. She concluded her affidavit by stating that after the death of the deceased person she read the will to the family members and left a copy of the same with one of the named executors as per the deceased's wishes.
[18] On her part, Eliseba Arusei averred, inter alia , that just like other family members, she came to know of the existence of the Will when Advocate Masai announced that the deceased had left a Will. She denied having taken part in the preparation of the same or having influenced the deceased to make his Will in a particular way. She also deposed that the deceased retained his memory and mental health and was therefore in a position to make a Will. She denied that she is the greatest beneficiary of the deceased Will and pointed out that the deceased person bequeathed her only 2.0 acres of his free property.
[19] The third annexed affidavit is the affidavit of Reverend Benjamin Samoei who stated that he is a retired Assistant Bishop of the African Inland Church (AIC). He stated that the deceased person herein was personally known to him as a staunch member of the AIC church until his death and as an elder of the church, he was always on hand to advise leaders and members of the church.
[20] Rev. Samoei confirmed that the deceased orally expressed his wishes prior to his death on how his body was to be buried and who was to preside over his funeral service. He told him and other members of the church that he would be buried within three (3) days of his death and that he would preside over the burial and no one else to speak during the service. Rev. Samoei indicated that the wishes of the deceased were respected both by the family and the church as his body was buried within three days of his death and he personally preached during the burial service. He also mentioned that the deceased person had his memory, understanding and comprehension intact until his death.
[21] The application was canvassed by way of written submissions. The objectors filed written submissions dated 9 th October 2025 through the firm of M/s Z.K. Yego Law Offices . They framed two issues for determination:
[a] Whether the alleged written Will is valid and
[b] Whether the deceased made reasonable provisions for all his dependents in his alleged written Will.
[22] On whether the alleged written Will is valid, the objectors submitted that Section 8 of the Law of Succession Act provides that a Will could either be written or oral. They conceded that they were aware of the Will dated 10 th January, 2021 which was allegedly signed by the deceased in the presence of Gideon Tororei and Advocate Masai C Jane. They however questioned the validity of the Will. On the authority of In re Estate of Julius Mimano (Deceased) [2019] КЕНС 10103 (KLR), the objectors submitted that the validity of a Will is dependent on two principal factors, namely the capacity of the testator to make a will at the material time and compliance with the formal requirements for the making of a will.
[23] On the capacity of the deceased, the objectors relied on Section 5 of the Laws of Succession Act on the prerequisites. They also made reference to the cases of Banks v Goodfellow [1870] LR 5 QB 549, John Kinuthia Githinji v Githua Kiarie and others, Civil Appeal No. 63 of 1984, Karanja and another v Karanja [2002] 2 KLR 22, and In the Matter of the Estate of James Ngengi Muigai, High Court Succession Cause No. 523 of 1996, for the proposition that where, on the face of it, the will appears to have been properly executed by a person of age and sound mind, a presumption of due execution arises; but that presumption may be displaced by circumstances emerging from the evidence adduced which tend to counterbalance the presumption.
[24] The objectors acknowledged that, to rebut the presumption of testamentary capacity, the burden of proof lies with the person alleging lack of knowledge and approval, and existence of suspicious circumstances. They submitted that the deceased, Philip Kibet Martim, being 97 years at the time of execution of the Will, lacked the mental and physical capacity to understand the nature or content of the document that he was made to sign. On this point they relied on the decision in Re Estate of Julius Mimano (Deceased) [2019] KEHC 10103 (KLR).
[25] The objectors’ urged the Court to take into account the fact that the Will was skewed in favour of some of the beneficiaries, particularly Eliseba Arusei , a daughter-in-law of the deceased and her husband, Meshack Kiprop Kosgey . They pointed out that the couple is poised to receive a total of 12 acres, the largest share of the estate property. They also urged the Court to note that Eliseba was also bequeathed the deceased's house and all the household items as well as a residential plot measuring approximately 50 by 100 yet, as a daughter-in-law she also stands to benefit through her husband, Meshack Kiprop Kosgey.
[26] The objectors also submitted that the fact that Eliseba had been taking care of the deceased, who lived with her from the year 2020 to the time of his death on 10 th October, 2023, was sufficient proof that jointly with her husband, they had the opportunity to play a role in the making of the Will and influencing its content. They relied on Re Estate of Julius Mimano (Deceased) [2019] КЕНС 10103 (KLR in support of their submissions.
[27] The objectors also challenged the Will on the ground that it does not meet the formal requirements of validity of a written will as stipulated in Section 11(c) of the Act. They argued that the execution of the written Will in the presence of Masai C Jane and Gideon Tororei was in contravention of Section 11(c) of the Act in that Masai C Jane could not qualify as an independent witness in that she was the same person who drew the Will on behalf of the deceased. They also urged the Court to note that the said Advocate was the very person who summoned the family members of the deceased to a meeting on the 20 th October, 2023 at the District Officer's Office in Kipkaren Salient where she informed them of the Will left behind by the deceased. In their submission this shows that she was an integral part of the procurement of the Will.
[28] Therefore, the objectors contended that since the only other witness, Gideon Tororei , is a stranger to the family, the Will was not properly attested as by law required.
[29] The objectors relied on Section 26 of the Act and submitted that the deceased in his Will, failed to adequately provide for some of his dependents. They contended that the Will was skewed to benefit some individuals such as Eliseba Arusei while others were left out of the Will, thereby denying them their rightful share of the deceased's estate. The objectors relied on In re Estate of Imoli Luhatse Paul (Deceased) [2021] КЕНС 1389 (KLR) where it was held that since daughters-in-law have no rights of inheritance from the estates of their fathers-in-law, they can only approach the court upon obtaining representation to the estates of the persons on whose account they claim.
[30] For the reasons aforestated, the objectors urged the Court to find that sufficient justification has been made for the Court's interference with the testamentary freedom of the deceased. They relied on the decision of the Court of Appeal in the case of John Kinuthia Githinji v Githua Kiarie, & Others, Nairobi Civil Appeal No. 99 of 1989 whereby the observations of Cockburn, J. in the case of Banks v Good Fellow [1870] LR 5 QB 549 were reiterated as follows:
"The law of every civilized people concedes to the owner of property the rights of determining, by his last will, either in whole or part, to whom the effects which he leaves behind him shall pass...A moral responsibility of no ordinary importance attaches to the exercise of the right given. The instincts and affections of mankind, in the vast majority of instances, will lead men to make provisions for these who are nearest to them in kindred and who, in life have been the object of their affection...The same motives will influence him in the exercise of the right of disposal when secured to him by law. Hence arises reasonable and well warranted expectation on the part of a man's kindred surviving him, that on his death effects shall become theirs, instead of being to strangers. To disappoint the expectation thus created and to disregard the claims of kindred to the inheritance is to mock the common sentiments of mankind and to violate what all men deeming an obligation in moral law...”
[31] In the premises, the objectors submitted that testamentary freedom is not absolute. It was their contention that the fact that the Will does not provide for the deceased’s daughters, being the 3 rd to 6 th Objectors, is sufficient ground to invalidate the Will. They urged the Court to allow their Objection dated 15 th April 2024 with costs.
[32] The petitioners filed written submissions dated 15 th May 2026 through the firm of M/S Cheruiyot Melly & Associates Advocates wherein their proposed issues for determination are:
[a] Whether the Will dated 10 th January 2021 is valid;
[b] Whether the issue of adequate provision can be raised at this stage; and
[c] Who bears the costs of the Objection.
[33] On whether the Will dated 10 th January 2021 is valid, the petitioners cited Section 11 of the Act and submitted that a cursory look at the Will shows that the testator executed the Will in the presence of Masai C. Jane and Gideon Tororei . They added that there is no provision of law excluding advocates from being witnesses to an execution of a will. They also submitted that the Will merely shows that Masai C. Jane was a witness and that the will was drawn by the firm MAC Law Advocates. In addition, they submitted that there is no known law requiring that a witness to a Will must be known to the family of the testator.
[34] On the claim that the testator was 97 years old, the petitioners submitted age does not affect testamentary capacity of a testator unless demonstrated that it rendered him incapable of understanding his affairs. They added that the burden of proof was on the objectors to demonstrate that the deceased lacked the requisite testamentary capacity at the material time. In this regard, they made reference to Section 109 of the Evidence Act, Chapter 80 of the Laws of Kenya.
[35] On the objectors’ allegation that the will was written under suspicious circumstances as it is heavily skewed in favour of some beneficiaries, the petitioners relied on the decision In Re Estate Of Julius Mimano (Deceased) [2019] KEHC 10103 (KLR ) where Hon. Musyoka, J. stated that:
“The allegation that a will was made under a cloud of suspicion raises the question of fraud. The fact that the circumstances of the making of a will were suspicions would suggest that the making of the will was procured by fraud or fraudulent means. The principle being that a testator must not only know the contents of the document that he signed as his will, he must also have approved of those contents. The approval being indication that it reflected his wishes and intention. The suspicion would arise if it appears from the circumstances that the testator did not either know of the contents or, knowing of the contents, did not approve them. It would particularly arise in cases where the person propounding the will takes a substantial benefit under the will.
[36] In the petitioners’ submission, the objectors failed to prove their allegations of fraud or that Eliseba and her husband participated in any way in the making of the Will. They contended that the fact that some beneficiaries were not provided for does not of itself provide sufficient justification for invalidating the Will. In support of this argument, the petitioners relied on Re Estate of Philip Nthenge Mukonyo (Deceased) [2018] eKLR, Curryian Okumu v Perez Okumu & 2 Others [2016] eKLR and James Maina Anyanga v Lorna Yimbiha Ottaro & 4 Others [2014] eKLR.
[37] The petitioners also addressed the Court on whether the issue of adequate provision can be raised at this stage. They urged that the current Objection is dealing with the validity of the Will and not the confirmation of grant of probate. They posited that the application for adequate provision can be made before confirmation of the grant of probate and not before the grant is issued thus making the issue of adequate provision at this stage premature. They submitted that the objectors should have waited for grant of probate to be issued then raise the issue of adequate provision before the grant of probate is confirmed.
[38] The petitioners asked to be paid the costs of the Objection since they are not members of the testator’s family or beneficiaries of the estate and would not have otherwise incurred any expense but for the Objection application.
[39] I have carefully considered the pleadings as well as the submissions by the parties and the following issues arise for determination:
[a] Whether the deceased, Philip Kibet Maritim, left a valid Will.
[b] Whether the deceased made provisions for all his dependents.
A. Whether the late Philip Kibet Maritim left a valid Will:
[40] Section 5 of the Law of Succession Act provides that:
(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.
(2) A female person, whether married or unmarried, has the same capacity to make a will as does a male person.
(3) Any person making or purporting to make a will shall be deemed to be of sound mind for the purpose of this section unless he is, at the time of executing the will, in such a state of mind, whether arising from mental or physical illness, drunkenness, or from any other cause, as not to know what he is doing.
(4) The burden of proof that a testator was, at the time he made any will, not of sound mind, shall be upon the person who so alleges.
[41] Further, Section 11 of the Act provides as follows:
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.”
[42] The evidentiary burden was on the objectors to prove that their assertions. Indeed, the Evidence Act is explicit at Sections 107 to 109 that:
107.(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.
108.The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
109.The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.
[43] The contested Will is dated 10 th January 2021. On the face of it, it is drawn by MAC Law Advocates. The said will bears three signature marks on the bottom first page and the last page it shows that it was signed by the deceased in presence of Masai C Jane , Advocate and Gideon Tororei . The Objectors did not contest the signature of the deceased or the witnesses, but contended that Gideon Tororei is not known to the family and that Jane C Masai , having drawn the Will is not an independent or competent witness. Therefore, the question to pose is whether the Will was attested by two competent and independent witnesses.
[44] Section 3 of the Act defines a "competent witness" to mean a person of sound mind and full age. Equally this section defines "independent witness" to mean a witness who is not a beneficiary under a will or the spouse of any such beneficiary. There is no doubt that on both fronts both Jane C Masai and Gideon Tororei are qualified.
[45] On whether Jane C. Masai was conflicted in the matter Section 11 is silent and no evidence was adduced to demonstrate that Jane C Masai is the only advocate working at MAC LAW ADVOCATES or even that she personally drew the Will. Attending to a client on behalf of a law firm does not necessarily disqualify an advocate from witnessing a Will as long as they pass the two-fold test prescribed in Section 11 . I find succor in this regard in Re Estate of Mbugua Kihanya (Deceased) (Succession Cause 82 of 2016) [2023] KEHC 1618 (KLR) (10 March 2023) (Judgment) in which a similar issue arose as to whether an advocate is a competent and independent witness for purposes of Section 11 . The court held as follows:
31.There is no allegation that the two witnesses of deceased’s Will, who include the advocate who drew the Will were not competent or not independent witnesses. I could find no provision in cap 160 which disqualified the firm that drew a Will from being witnesses of the testator’s signature. In this regard, I am persuaded by the decision of Justice Mumbua T. Matheka in the case In re estate of Gichuhi Wakano alias Wilfred Wakano Gichuhi (deceased)(2022) eKLR
“The 3rd protestor in particular submitted that the will was attested to by Mungai Mbugua who was an advocate. That the said advocate cannot be the advocate who drew
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