REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MAKUENI
SUCCESSION CAUSE NO. E019 OF 2021
IN THE MATTER OF THE ESTATE OF THE LATE ISIDORE MWANGANGI MASOLA (DECEASED)
CHARITY MUTHINI MWANGANGI ……PETITIONER/RESPONDENT
VERSUS
ALEX MAKALI MWANGANGI …………..1 ST OBJECTOR/APPLICANT
PETER NZYOKA MWANGANGI ……..…2 ND OBJECTOR/APPLICANT
JUDGMENT
1) Isidore Mwangangi Masola died on 4/1/2019.
2) On 31/3/2022 Charity Muthini Mwangangi was granted Grant of Probate with Written Will, as the executor named in the will.
3) On 9/6/2022 a Summons for Revocation of Grant was filed seeking that the grant of probate made to Charity Muthini Mwangangi to the Estate of Isidore Mwangangi Masola on 28/3/2022 be revoked.
4) The Summons for Revocation of Grant is supported in the affidavit of Alex Makali Mwangangi on the grounds inter alia that the grant was obtained fraudulently by the concealment from the court of material facts; that there are other beneficiaries to the estate Alex Mwangangi Margaret Nthenya, Lucci Nduku, Sylvester Noah, Benard Maingi, Pauline Mwikali, Peter Nzioki
5) Charity Muthini the Executrix opposed the application vide a Replying Affidavit sworn on 23/9/2022. She deponed that the deceased had 3 wives: Mary Mwangangi -1 st wife, Martha Mwangangi - 2 nd wife and herself as the 3 rd wife.
7) She deponed that she was appointed by testator in his last will and testament. That the testator exercised his free will in bequeathing his estate; that the objectors and members of the 1 st family were unreceptive, antagonistic, aggressive, belligerent, unsympathetic towards the testator; that the 1 st & 2 nd objectors ganged up to form a lethal and “contumacious cabal that tormented, traumatized and agonized the testator up to his last breath of life on earth” – she cites incidents that testator cited in his will.She avers that the Summons for revocation of grant is not merited.
8) The applicant filed a further affidavit sworn on 25/1/2023. He attacked the will saying their father had sold the farm in Kitundu to Lucci Nduku at Ksh 1,500,000/= in 1999 yet the same had been bequeathed to Anthony Nzyoka Mwangangi in the will dated 17/5/1994.
9) That another property plot No. 1336 Aimi ma Kilungu Coop Society was gifted to a sister but not captured in the will. That other properties in Konza Ranching & Cooperative and Malili, Kiima Kiu, were missing from the will.
10) That the will was not made by the deceased – that in it his National ID Card number was captured wrongly.
11) Charity Muthini Mwangangi made a further affidavit and deponed that the Testator had a 1 st generation ID Card when he made the will in 1994 No. 1454198/64 which was a paper Identity Card; that in 1995 2 nd generation Identity Cards were introduced – those were laminated and that the new Identity Card number was 1454193 .She annexed the 2 nd generation Identity Card .
12) She cites the Testator’s last will and testament pointing out where the plot No. 1832 has been bequeathed to the 1 st family; that when the will was made in 1994 – the testator was 72 years old, running his Medical Clinic and of good health; that in 1994 – the plot 1336 was not in existence ; that it came into effect in the 2007 when testator was awarded plot 1336 and commercial plot 274; that plot 1336 was gifted to Pauline Mwikali in 2017; That testator sold his interests in Malili/Kiima Kiu to other shareholders ;– that in any event no evidence was been placed before court to show that these alleged properties belonged to the deceased.
13) The matter proceeded by way of viva voce evidence.
14) The objectors called one witness – and the petitioner testified. Between the two of them , two document examiners testified; one from the National Police Service Directorate of Criminal Investigations Forensic Document Examiner , the other from Ethics and Anti-Corruption Commission Forensic Document Examiner. Both were given the same documents to examine –
- The will
- A codicil
- two known writings
15) There after parties filed written submissions through their respective counsel.
SUBMISSIONS
Objectors
16) For the objectors it was submitted that the following were the key facts relevant to their case
(a) That the matter arose from a family dispute involving the late Isidore Mwangangi Masola and his three wives, together with their respective households. That this dispute began during his lifetime, involving periods of tension and estrangement among the family members; that even then family reconciliation efforts were undertaken.
(b) His three families were made up thus:
-first wife: the late Mary Mwangangi, with whom he had eleven (11) children.
- second wife: the late Martha Mwangangi, with whom he had two (2) children. Martha was a biological sister of the first wife, and the circumstances under which she was married in the 1960s caused tension in the family.
- third wife: the Petitioner, Charity Muthini, with whom it is alleged he had one (1) child and other children she had from previous marriages
(c) The entrance of the Petitioner into the family, led to disagreements because she and the deceased kicked the first wife out of her matrimonial home, forcing her to sleep in living room in her son’s quarters .They also forbade her from cultivating any of the family lands leaving her destitute and depressed. Following a family meeting of the deceased and the first family and intervention of elders it was resolved that the Petitioner be moved to her own house in Mweani Village
(d) The despite the move, the Petitioner and the deceased locked the house denying the 1 st family access of their house, creating the tension that led to the burning of the house in August 1992. However subsequent successful efforts were made to reconcile the deceased to the first family, and they ended up taking care of the deceased in his old age, including taking care of his medical care and other .
(e) The deceased was known to keep meticulous records relating to his children as evidenced in the books provided as sample handwritings as well as personal matters. That he documented some of the events through the document dated 20.08.1992 written merely twelve (12) days after the fire incident. That there was extreme aggravation by the Petitioner which unduly influenced the deceased’s decision making at the time.
(f) They were not aware of any Will. The Petitioner’s own testimony confirmed this. All efforts to find out from the Petitioner whether or not there was a will were in futile, even those through the local administration were futile as she ignored summons and when she eventually attended the chief’s office, she indicated that the deceased had not left any property and walked out. The Objectors cited the Petitioner in Tawa Citation no. 5 of 2022 and that is when they learnt that there was an alleged will on account of which the Petitioner had commenced probate proceedings. It is in this backdrop that the Objectors are questioning the authenticity and validity of the Will as supported by grounds set out in their affidavits including, the non-disclosure of the existence of the will, glaring discrepancies between the codicil and the Will including blanks in the Will in relation to asset descriptions, conflicting bequests, different ID numbers of the deceased, and signatures that to the naked eye appear very different.
17) The objectors set out 3 issues for determination:-
(a) Whether the proceedings to obtain the grant were defective in substance and the grant fraudulently obtained.
(b) Whether the deceased left behind a valid Will and the Codicil.
(c) Whether the grant issued to the Petitioner ought to be revoked.
18) They relied on sections 11, 12 & 76 of the LOSA as the applicable law.
19) On the 1 st issue it was submitted that according to the Petitioners witness statement the Objector’s were informed of the existence of the deceased’s will in a meeting held at the Chief’s Office in December 2019. That after they were informed about it they vowed to challenge it by whatever reasons. That contrary to that statement, the Petitioner in her testimony in court, told the court that she found the will among documents the deceased kept in a cupboard in their home, and she never told anyone about it. That the existence of the will came to light when the Objectors filed a Citation at Tawa Law Courts No. 5/2022. That when, upon being cited the Petitioner revealed that she had already obtained a grant in this cause on 10/12/2021.
It is submitted that the Petitioner participated in the burial arrangements – the burial permit was issued in both hers and the 1 st Objectors names - However she never told anyone at the burial or thereafter of the existence of the will and in essence it is argued that her conduct fell within the parameters of section 76 (a) (b) & (d) of the LOSA. That the Petitioner was even summoned to the Chief’s Office, to the DCC’s Office on the issue of “mali ya mzee” but ignored all.
20) It is submitted that the Petitioner’s silence, inconsistent explanations create serious doubt as to the existence of the will at the material time. It is also submitted that there could have been other “codicils” which the petitioner concealed. This is because she moved into the deceased’s home in 1989 – she and the deceased threw out the mother of the Objectors from her house – where he had lived with her and all the deceased’s documents were there - that the petitioner later relocated to her new house in Mweani Village – and ferried everything from that house that she and the deceased carried away the keys – it is submitted that all that gave her unlimited access and influence over the deceased ‘s property and document’s .
21) That the action of locking out the Objector’s mother from her house, and the Objectors from their mother’s house, and ferrying away everything created such hostility that the house was set ablaze. It is all evident that the codicil dated 10/8/1992 was written 12 days later.
22) Further submissions were made on the 2 forensic witnesses evidence -it was submitted that the purpose of calling them was to assist the court to determine that authenticity of the will.
23) It was submitted that the first report dated 12.06.2024 by the Directorate of Criminal Investigations, concluded that the handwriting and signatures on the will and codicil matched the deceased’s known samples in a Black A5 Book and Brown A 5 Book. It was contended that the report was thread bare, lacked a detailed comparison of the signatures and did not meet the expected standard for a report of this nature . That the same documents were submitted via consent of parties dated 25.07.2024 for independent analysis by the Forensic Document Examination (FDE) Laboratory of the Ethics and Anti-Corruption Commission. It is submitted that the FDE’s report dated 19.08.2024 reached markedly different conclusions:
a. That the signature on the will differed from the signature on the codicil, and the deceased’s known signatures ; that the handwriting in the will differed both from the codicil and from the deceased’s samples
b. That the codicil’s signature matched the deceased’s known signatures samples; That the handwriting in the codicil corresponded with the deceased’s known writing
24) It was submitted that in Gladys Wambui Kagiri (Suing as Administrator of the Estate of the Late Kagiri Gichuki) vs Samuel Njoroge Kamau & 2 Others [2022] KEELC 1973 (KLR), relying on Shah & Another vs Shah & Others [2003] 1 EA 290 , the court clarified that expert opinion under sections 48 of the Evidence Act assists the court but does not bind it. That the Court must interrogate the expert’s qualifications, methodology, and reasoning, and in case of conflicting opinions, it is upon the judge to make the determination as which analysis is more credible and scientifically grounded. That Section 6 1 of the Evidence Act further empowers the court to draw its own conclusions upon comparing the disputed writings when necessary.It was argued that the FDE dated 19/8/2024 report met the requisite standards – as compared to the DCI Report dated 12/6/2024. The FDE report was submitted to be better for the reasons that it provided:
“[] a clear account of the samples examined, the analytical methods used, and the reasoning behind its conclusions, the report was subjected to peer review by an independent examiner, Jacob Oduor. This process serves as an internal quality-control mechanism, ensuring that the findings and methodology withstand scrutiny by another qualified expert. Peer review enhances the objectivity, transparency, and overall credibility of the report, distinguishing it as a professionally validated document.”
25) For the DCI Report it was submitted that it lacked the requisite verification and peer review. The court was urged to find the FDE report persuasive - in supporting the objectors case as per section 76 (a) (b) & (c) of the LOSA.
26) On the 2 nd issue it was submitted that the petitioner deliberately concealed the existence of the will and codicil from the 2 other houses – and together with the numerous irregularities undermined the authenticity of the will. According to the Petitioner the deceased was of good health and sound mind in 1994 when he drafted the will .However, the alleged codicil came before the will – it is dated 20/8/1992 – yet under section 3(1) of LOSA a codicil pre-supposes the existence of a will which the codicil is made to amend. That the fact of these circumstances creates the impression that there could have been other earlier testamentary documents which the petitioner deliberately suppressed in order to advance her personal interests. That in nay event the codicil did not abide by s. 11 ( c) of the LOSA as it bears no attesting witnesses; and its disposition varies materially with those contained in the 1994 will.
27) Regarding the deceased’s personal information in the codicil and the will it was submitted that the details of the deceased ID card varied in various parts of the codicil and in one of their deceased referred to himself as Isidore Mwangi Masola; the deceased mis named his last born child Pauline ‘Ndunge’ instead of Mwikali; he even misspelled his son’s name – instead of ‘Simon’ it is written Simeon. In addition the deceased listed the children the Petitioner came with as children he bore with her . These the court was urged to find were uncharacteristic of the deceased and were pointers to collective doubt that he did not author the will.
28) It is also submitted that though there was discord in the family leading to the burning of the house – the same was settled – and the reconciliation meeting held where the deceased blessed the children of the 1 st house , and – in 2017, deceased gifted Pauline plot 1336, and sold the Kitundu Farm to Lucci.
29) The court was urged to read the tenor of the codicil. Here property was bequeathed for the purpose of educating children. Less that 2 years later in the will of 17/5/1994 a new situation is created where the properties were bequeathed to the Petitioner absolutely for as long as she did not re -marry.
30) It is submitted that the Petitioner’s marriage to the deceased was void ab initio as the deceased was in a subsisting monogamous marriage contracted in 1945.
31) That the will –dis inherited the 1 st & 2 nd Houses on the ground that they antagonized the deceased yet no evidence was availed before court that 2 nd house had ever engaged in any conduct that would warrant the exclusion.
32) It was submitted that it was evident that none of the attesting witnesses or the Advocate who drew the will were called as witnesses.
33) On the 3 rd issue it is submitted that the grant ought to be revoked on the following established cumulative grounds; Under section 76 of the Law of Succession Act (Cap. 160), a grant may be revoked or annulled at any time if:
a. the proceedings to obtain it were defective in substance;
b. it was obtained fraudulently by making a false statement or by concealment from the court of something material to the case; or
c. it was obtained by means of an untrue allegation of a fact essential in point of law.
34) It is submitted that the guiding principle on revocation was captured In re Estate of Julius Ndubi Javan (Deceased) [2018] eKLR, where the Court held that a grant founded on concealment or falsehood cannot stand, for it strikes at the very heart of justice and the integrity of the succession process
35) It is submitted that the objectors had established sufficient grounds to warrant the revocation of the grant of probate issued to the Petitioner on 10.12.2021 with costs; that the Petitioner deliberately concealed the existence of the alleged will and codicil from the rightful beneficiaries and only disclosed them after obtaining probate; that the circumstances under which the will and codicil surfaced, coupled with forensic discrepancies and the use of an ID number belonging to another person, render the instruments inherently suspect; The proceedings leading to the issuance of the grant were therefore defective in substance and the grant itself was fraudulently obtained within the meaning of section 76 (a), (b) and (c) of the Law of Succession Act.
PETITIONER’S
36) The petitioner began by pointing out that the 2 nd objector was deceased – and there had been no substitution.
37) The petitioner summarized the objectors and the petitioner’s cases as follows;
38) That the Objector's case is anchored on the contention that the Grant of Probate issued to the Petitioner was procured through concealment, misrepresentation, and fundamental irregularities, thereby falling squarely within the revocation grounds under section 76 of the Law of Succession Act. That it was the Objector’s evidence that the deceased, Isidore Mwangangi Masola, was polygamous with three households: the first family of the late Mary Mwangangi, with eleven children including the Objectors , the second family of the late Martha Mwangangi with two children ; and the Petitioner, who constituted the third household and lived with the Deceased until his demise.
39) That it is the Objectors’ case that introduction of the Petitioner into the first wife's home intensified pre-existing tensions within the family, resulting in the first wife's eviction, her exclusion from cultivating family land, and heightened friction between the Petitioner and the children of the first household.
40) That these tensions, culminated in the burning of the deceased's homestead in August 1992 , an incident the Objectors contend has been exaggerated and exploited by the Petitioner to justify their disinheritance.That the Objectors, maintain that the Deceased later reconciled with the first household through meetings held in 1992, after which he enjoyed cordial relations with them and that in his later years they cared for him, financed his medical needs, and regularly assisted him, demonstrating that any portrayal of long-standing hostility is inconsistent with the Deceased's lived reality.
41) That the central pillar of the Objector's case is that the Petitioner deliberately concealed the alleged will of 17 th May 1994 and the codicil of 20 th August 1992 until they filed Citation No. 5 of 2022 when the Petitioner disclosed the existence of the will, despite having already obtained a Grant in December 2021. That this prolonged silence, compounded by contradictions between her testimony and affidavits, is said to constitute fraudulent concealment of material facts intended to exclude the Objectors from the administration of their father's estate.
42) In addition the Objector impugns the authenticity of the codicil. It is argued that , arguing that it is prima facie irregular, has no attesting witnesses contrary to section 11 of the Law of Succession Act. The objectors also point out internal inconsistencies, including three different identification numbers, one confirmed by the National Registration Bureau to belong to an unrelated person, errors in the deceased's name, and misidentification of family members such as referring to Pauline Mwikali as "Ndunge." Given the deceased's meticulous nature and sound mental faculties at the time, they contend that such glaring errors are incompatible with authorship by the deceased. (emphasis added)
43) It was further the Objector's case that that the codicil narrates events in a manner inconsistent with established facts, including purported destruction of property at a time when the Deceased and the Petitioner had already relocated to Mweani Village with all household belongings, thereby casting further doubt on the credibility of the document.The validity of the Will dated 17 th May 1994 is challenged on the grounds that it is riddled with contradictions and inaccuracies, has an incorrect identification number, there ls omission of key properties such as the Aimi Ma Kilungu plot and Kitundu Farm, which the deceased later gifted or sold to members of the first family, there are material inconsistencies between the codicil and the will, e.g., the reallocation of Plot No. 1832; that the Petitioner’s elevation to wife status entitled to absolute ownership which would expire upon remarriage, was improper as her marriage was invalid due to the deceased's subsisting monogamous marriage contracted in 1945.
44) In her evidence, the Petitioner relied on her witness statement dated 24 February, 2023, her further affidavit dated 24th February, 2023, the List and Bundle of Documents dated 24th February, 2023 and Supplementary List and Bundle of Documents dated 6th November, 2024.
45) It is submitted that Petitioner emphatically denied the accusations of fraud, suppression, or nondisclosure and that not a single piece of credible evidence was produced support the allegations that she misled the Court or concealed material information, and that the Objectors allegations, did not satisfy any of the statutory grounds for revocation of the grant under section 76 of the LOSA.
46) Regarding the alleged concealment of the Will and codicil, it is the Petitioner’s position that the Objectors and members of the first family were informed of the will shortly after the deceased's death during a family meeting but that their reaction was aggressive; they rejected the will outright and vowed to "find alternative ways" of redistributing the estate . That it is this same hostility that brought about the deceased's sentiments as seen in his own written accounts. She states that in the records long before his death, the deceased describes years of aggression and mistreatment at the hands of the first household. Further that the Objectors, unsuccessfully attempted to sidestep lawful probate by improperly approaching the Deputy County Commissioner to transfer administration of the estate to the Public Trustee. She denied having ben summoned by the DCC.
47) It is the Petitioner’s position that both documents, the will and the 'codicil’ were duly executed by the Deceased who was meticulous and of sound mind ,voluntarily and in accordance with statutory requirements.
48) Regarding the expert opinion reports the Petitioner is in agreement with the objectors that expert opinions are merely advisory as per section 48 of the Evidence Act. It is the Petitioner’s case that the Objectors' assertions of inconsistencies, perceived errors in translations, spellings, or handwritten records do not amount to proof of forgery; Of the two reports the Petitioner submits that the DCI's DCI report is the official report produced by the government's primary forensic agency. That this confirmed that the handwriting and signatures matched the deceased's known samples. The court is urged to find that it carries significant probative weight ; that the fact that the Objectors' were dissatisfied with its conclusions did not invalidate it. That the EACC report remains advisory only.
49) That the fact that the will does not mention every property allegedly owned by the Deceased does not invalidate the will as legally the Deceased had absolute discretion to determine which properties to dispose of through his will and which ones to deal with inter vivos. In any event no evidence has been placed before the court to show that the alleged omitted properties formed part of the deceased’s free estate or that those properties were unknown to the Deceased when he prepared his will. Neither is there evidence that properties were improperly excluded, fraudulently omitted, or that the Petitioner played any role in their non-inclusion.
50) It is submitted that the objector’s is an impermissible invitation to the Court to rewrite the will to suit their expectations.
51) That any property omitted from the will, would simply fall into intestacy under section 34 of the Law of Succession Act.
52) It is submitted that the Objectors complaints revolve around historical grievances, dissatisfaction with their father’s choices, and speculative attacks on testamentary documents that were lawfully made . That they have failed to establish the requirements of section 76 of the Law of Succession Act as to whether the proceedings to obtain the grant were defective in substance; whether the grant was obtained fraudulently, or whether any essential allegation was false.
53) Further on the expert evidence the Petitioner set out a comparison of the testimony of each of the witnesses in detail. Chief Inspector Kimaiywa from DCI testified
a. that he held a Bachelor of Science degree in Mathematics from the University of Nairobi and was a trained document examiner at the DCI Forensic Documents Examination Lab and regional laboratories in Khartoum and had an experience of 7 years in document examination. He produced the said report, which was marked as EXHIBIT 2. 1
b. The DCI examiner undertook comparative analysis using standard forensic techniques including visual examination, magnification, stroke comparison, pen pressure assessment, writing rhythm, and alignment patterns Applying the principles of forensic document analysis, the examiner identified consistent handwriting characteristics between the deceased's known specimens and the signatures and handwriting on the questioned documents.
c. In his testimony and report, he concluded that the handwriting and signatures appearing on both the Will and the handwritten record were genuinely authored by the Deceased, clarifying that the signatures exhibited natural variation consistent with genuine writing, and no indications of tracing, simulation, or forgery were detected. The DCI examiner affirmed this position during oral testimony
d. In his oral testimony, he cited that the pen movements, pen characteristics, slanting of the characters, initial and terminal strokes, pen lifts, baseline adjustments, height ratios, mideon strokes, line and character spacing as well as the general resemblance pointed out that the writings were made by the same author, the Deceased.
e. That he reiterated that no writer can write the same every time and that this was due to natural variations that he was of the view that the EACC report did not beer any objectivity as it had been made to impeach him DCI report.
54) On the EACC report – It was submitted that this was brought on board because the objectors were dissatisfied with the DCI report. The Petitioner submitted;
i. The EACC examiner considered stroke formation, slant, spacing, connecting strokes, letter proportions, and stylistic patterns.
ii. In contrast to the DCI examiner, the EACC expert identified what he considered significant divergences between the deceased's known handwriting and the writing appearing on the questioned documents. He highlighted variations in letter construction, inconsistencies in slant and pressure patterns, differences in the configuration of certain characters, and departures from the writing rhythm observed in the specimen material. He also noted structural patterns in the questioned signatures that, in his view, were not characteristic of the deceased's normal writing habits.
iii. Based on these observations, the EACC examiner concluded that the handwriting and signatures on the contested Will and handwritten record were not authored by the deceased. He testified that the differences were substantial and could not be explained as natural variation.
55) From the foregoing the petitioner set out for determination the following issues:-
i. Whether the Objectors' challenge to the validity of the Will constitutes an afterthought outside their pleaded grounds.
ii. Whether the handwritten document dated 20th August 1992 (Black A4 book) constitutes a codicil, or whether it forms part of the Will by incorporation by reference.
iii. Whether the Will dated 17th May 1994 and the handwritten codicil dated 20th August 1992 were validly executed by the Deceased in accordance with the Law of Succession Act.
iv. Whether the Objectors have established any grounds under section 76 of the Law of Succession Act to justify revocation of the Grant of Probate
56) On the 1 st issue it was submitted that in Kenya, parties are strictly bound by their pleadings – and that a court is required to confine itself to issues properly joined. The petitioner relies on – Daniel Otieno Migore vs South Nyanza Sugar Co. ltd [2018] eKLR cited with approval in Omundi vs Josemo Distributors [2025] KEHC 1115 (KLR) where the court stated
“11. It is by now well settled by precedent that parties are bound by their pleadings and that evidence which tends to be at variance with the pleadings is for rejection. Pleadings are the bedrock upon which all the proceedings derive from. It hence follows that any evidence adduced
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IN THE HIGH COURT OF KENYA AT MAKUENI
SUCCESSION CAUSE NO. E019 OF 2021
IN THE MATTER OF THE ESTATE OF THE LATE ISIDORE MWANGANGI MASOLA (DECEASED)
CHARITY MUTHINI MWANGANGI ……PETITIONER/RESPONDENT
VERSUS
ALEX MAKALI MWANGANGI …………..1 ST OBJECTOR/APPLICANT
PETER NZYOKA MWANGANGI ……..…2 ND OBJECTOR/APPLICANT
JUDGMENT
1) Isidore Mwangangi Masola died on 4/1/2019.
2) On 31/3/2022 Charity Muthini Mwangangi was granted Grant of Probate with Written Will, as the executor named in the will.
3) On 9/6/2022 a Summons for Revocation of Grant was filed seeking that the grant of probate made to Charity Muthini Mwangangi to the Estate of Isidore Mwangangi Masola on 28/3/2022 be revoked.
4) The Summons for Revocation of Grant is supported in the affidavit of Alex Makali Mwangangi on the grounds inter alia that the grant was obtained fraudulently by the concealment from the court of material facts; that there are other beneficiaries to the estate Alex Mwangangi Margaret Nthenya, Lucci Nduku, Sylvester Noah, Benard Maingi, Pauline Mwikali, Peter Nzioki
5) Charity Muthini the Executrix opposed the application vide a Replying Affidavit sworn on 23/9/2022. She deponed that the deceased had 3 wives: Mary Mwangangi -1 st wife, Martha Mwangangi - 2 nd wife and herself as the 3 rd wife.
7) She deponed that she was appointed by testator in his last will and testament. That the testator exercised his free will in bequeathing his estate; that the objectors and members of the 1 st family were unreceptive, antagonistic, aggressive, belligerent, unsympathetic towards the testator; that the 1 st & 2 nd objectors ganged up to form a lethal and “contumacious cabal that tormented, traumatized and agonized the testator up to his last breath of life on earth” – she cites incidents that testator cited in his will.She avers that the Summons for revocation of grant is not merited.
8) The applicant filed a further affidavit sworn on 25/1/2023. He attacked the will saying their father had sold the farm in Kitundu to Lucci Nduku at Ksh 1,500,000/= in 1999 yet the same had been bequeathed to Anthony Nzyoka Mwangangi in the will dated 17/5/1994.
9) That another property plot No. 1336 Aimi ma Kilungu Coop Society was gifted to a sister but not captured in the will. That other properties in Konza Ranching & Cooperative and Malili, Kiima Kiu, were missing from the will.
10) That the will was not made by the deceased – that in it his National ID Card number was captured wrongly.
11) Charity Muthini Mwangangi made a further affidavit and deponed that the Testator had a 1 st generation ID Card when he made the will in 1994 No. 1454198/64 which was a paper Identity Card; that in 1995 2 nd generation Identity Cards were introduced – those were laminated and that the new Identity Card number was 1454193 .She annexed the 2 nd generation Identity Card .
12) She cites the Testator’s last will and testament pointing out where the plot No. 1832 has been bequeathed to the 1 st family; that when the will was made in 1994 – the testator was 72 years old, running his Medical Clinic and of good health; that in 1994 – the plot 1336 was not in existence ; that it came into effect in the 2007 when testator was awarded plot 1336 and commercial plot 274; that plot 1336 was gifted to Pauline Mwikali in 2017; That testator sold his interests in Malili/Kiima Kiu to other shareholders ;– that in any event no evidence was been placed before court to show that these alleged properties belonged to the deceased.
13) The matter proceeded by way of viva voce evidence.
14) The objectors called one witness – and the petitioner testified. Between the two of them , two document examiners testified; one from the National Police Service Directorate of Criminal Investigations Forensic Document Examiner , the other from Ethics and Anti-Corruption Commission Forensic Document Examiner. Both were given the same documents to examine –
- The will
- A codicil
- two known writings
15) There after parties filed written submissions through their respective counsel.
SUBMISSIONS
Objectors
16) For the objectors it was submitted that the following were the key facts relevant to their case
(a) That the matter arose from a family dispute involving the late Isidore Mwangangi Masola and his three wives, together with their respective households. That this dispute began during his lifetime, involving periods of tension and estrangement among the family members; that even then family reconciliation efforts were undertaken.
(b) His three families were made up thus:
-first wife: the late Mary Mwangangi, with whom he had eleven (11) children.
- second wife: the late Martha Mwangangi, with whom he had two (2) children. Martha was a biological sister of the first wife, and the circumstances under which she was married in the 1960s caused tension in the family.
- third wife: the Petitioner, Charity Muthini, with whom it is alleged he had one (1) child and other children she had from previous marriages
(c) The entrance of the Petitioner into the family, led to disagreements because she and the deceased kicked the first wife out of her matrimonial home, forcing her to sleep in living room in her son’s quarters .They also forbade her from cultivating any of the family lands leaving her destitute and depressed. Following a family meeting of the deceased and the first family and intervention of elders it was resolved that the Petitioner be moved to her own house in Mweani Village
(d) The despite the move, the Petitioner and the deceased locked the house denying the 1 st family access of their house, creating the tension that led to the burning of the house in August 1992. However subsequent successful efforts were made to reconcile the deceased to the first family, and they ended up taking care of the deceased in his old age, including taking care of his medical care and other .
(e) The deceased was known to keep meticulous records relating to his children as evidenced in the books provided as sample handwritings as well as personal matters. That he documented some of the events through the document dated 20.08.1992 written merely twelve (12) days after the fire incident. That there was extreme aggravation by the Petitioner which unduly influenced the deceased’s decision making at the time.
(f) They were not aware of any Will. The Petitioner’s own testimony confirmed this. All efforts to find out from the Petitioner whether or not there was a will were in futile, even those through the local administration were futile as she ignored summons and when she eventually attended the chief’s office, she indicated that the deceased had not left any property and walked out. The Objectors cited the Petitioner in Tawa Citation no. 5 of 2022 and that is when they learnt that there was an alleged will on account of which the Petitioner had commenced probate proceedings. It is in this backdrop that the Objectors are questioning the authenticity and validity of the Will as supported by grounds set out in their affidavits including, the non-disclosure of the existence of the will, glaring discrepancies between the codicil and the Will including blanks in the Will in relation to asset descriptions, conflicting bequests, different ID numbers of the deceased, and signatures that to the naked eye appear very different.
17) The objectors set out 3 issues for determination:-
(a) Whether the proceedings to obtain the grant were defective in substance and the grant fraudulently obtained.
(b) Whether the deceased left behind a valid Will and the Codicil.
(c) Whether the grant issued to the Petitioner ought to be revoked.
18) They relied on sections 11, 12 & 76 of the LOSA as the applicable law.
19) On the 1 st issue it was submitted that according to the Petitioners witness statement the Objector’s were informed of the existence of the deceased’s will in a meeting held at the Chief’s Office in December 2019. That after they were informed about it they vowed to challenge it by whatever reasons. That contrary to that statement, the Petitioner in her testimony in court, told the court that she found the will among documents the deceased kept in a cupboard in their home, and she never told anyone about it. That the existence of the will came to light when the Objectors filed a Citation at Tawa Law Courts No. 5/2022. That when, upon being cited the Petitioner revealed that she had already obtained a grant in this cause on 10/12/2021.
It is submitted that the Petitioner participated in the burial arrangements – the burial permit was issued in both hers and the 1 st Objectors names - However she never told anyone at the burial or thereafter of the existence of the will and in essence it is argued that her conduct fell within the parameters of section 76 (a) (b) & (d) of the LOSA. That the Petitioner was even summoned to the Chief’s Office, to the DCC’s Office on the issue of “mali ya mzee” but ignored all.
20) It is submitted that the Petitioner’s silence, inconsistent explanations create serious doubt as to the existence of the will at the material time. It is also submitted that there could have been other “codicils” which the petitioner concealed. This is because she moved into the deceased’s home in 1989 – she and the deceased threw out the mother of the Objectors from her house – where he had lived with her and all the deceased’s documents were there - that the petitioner later relocated to her new house in Mweani Village – and ferried everything from that house that she and the deceased carried away the keys – it is submitted that all that gave her unlimited access and influence over the deceased ‘s property and document’s .
21) That the action of locking out the Objector’s mother from her house, and the Objectors from their mother’s house, and ferrying away everything created such hostility that the house was set ablaze. It is all evident that the codicil dated 10/8/1992 was written 12 days later.
22) Further submissions were made on the 2 forensic witnesses evidence -it was submitted that the purpose of calling them was to assist the court to determine that authenticity of the will.
23) It was submitted that the first report dated 12.06.2024 by the Directorate of Criminal Investigations, concluded that the handwriting and signatures on the will and codicil matched the deceased’s known samples in a Black A5 Book and Brown A 5 Book. It was contended that the report was thread bare, lacked a detailed comparison of the signatures and did not meet the expected standard for a report of this nature . That the same documents were submitted via consent of parties dated 25.07.2024 for independent analysis by the Forensic Document Examination (FDE) Laboratory of the Ethics and Anti-Corruption Commission. It is submitted that the FDE’s report dated 19.08.2024 reached markedly different conclusions:
a. That the signature on the will differed from the signature on the codicil, and the deceased’s known signatures ; that the handwriting in the will differed both from the codicil and from the deceased’s samples
b. That the codicil’s signature matched the deceased’s known signatures samples; That the handwriting in the codicil corresponded with the deceased’s known writing
24) It was submitted that in Gladys Wambui Kagiri (Suing as Administrator of the Estate of the Late Kagiri Gichuki) vs Samuel Njoroge Kamau & 2 Others [2022] KEELC 1973 (KLR), relying on Shah & Another vs Shah & Others [2003] 1 EA 290 , the court clarified that expert opinion under sections 48 of the Evidence Act assists the court but does not bind it. That the Court must interrogate the expert’s qualifications, methodology, and reasoning, and in case of conflicting opinions, it is upon the judge to make the determination as which analysis is more credible and scientifically grounded. That Section 6 1 of the Evidence Act further empowers the court to draw its own conclusions upon comparing the disputed writings when necessary.It was argued that the FDE dated 19/8/2024 report met the requisite standards – as compared to the DCI Report dated 12/6/2024. The FDE report was submitted to be better for the reasons that it provided:
“[] a clear account of the samples examined, the analytical methods used, and the reasoning behind its conclusions, the report was subjected to peer review by an independent examiner, Jacob Oduor. This process serves as an internal quality-control mechanism, ensuring that the findings and methodology withstand scrutiny by another qualified expert. Peer review enhances the objectivity, transparency, and overall credibility of the report, distinguishing it as a professionally validated document.”
25) For the DCI Report it was submitted that it lacked the requisite verification and peer review. The court was urged to find the FDE report persuasive - in supporting the objectors case as per section 76 (a) (b) & (c) of the LOSA.
26) On the 2 nd issue it was submitted that the petitioner deliberately concealed the existence of the will and codicil from the 2 other houses – and together with the numerous irregularities undermined the authenticity of the will. According to the Petitioner the deceased was of good health and sound mind in 1994 when he drafted the will .However, the alleged codicil came before the will – it is dated 20/8/1992 – yet under section 3(1) of LOSA a codicil pre-supposes the existence of a will which the codicil is made to amend. That the fact of these circumstances creates the impression that there could have been other earlier testamentary documents which the petitioner deliberately suppressed in order to advance her personal interests. That in nay event the codicil did not abide by s. 11 ( c) of the LOSA as it bears no attesting witnesses; and its disposition varies materially with those contained in the 1994 will.
27) Regarding the deceased’s personal information in the codicil and the will it was submitted that the details of the deceased ID card varied in various parts of the codicil and in one of their deceased referred to himself as Isidore Mwangi Masola; the deceased mis named his last born child Pauline ‘Ndunge’ instead of Mwikali; he even misspelled his son’s name – instead of ‘Simon’ it is written Simeon. In addition the deceased listed the children the Petitioner came with as children he bore with her . These the court was urged to find were uncharacteristic of the deceased and were pointers to collective doubt that he did not author the will.
28) It is also submitted that though there was discord in the family leading to the burning of the house – the same was settled – and the reconciliation meeting held where the deceased blessed the children of the 1 st house , and – in 2017, deceased gifted Pauline plot 1336, and sold the Kitundu Farm to Lucci.
29) The court was urged to read the tenor of the codicil. Here property was bequeathed for the purpose of educating children. Less that 2 years later in the will of 17/5/1994 a new situation is created where the properties were bequeathed to the Petitioner absolutely for as long as she did not re -marry.
30) It is submitted that the Petitioner’s marriage to the deceased was void ab initio as the deceased was in a subsisting monogamous marriage contracted in 1945.
31) That the will –dis inherited the 1 st & 2 nd Houses on the ground that they antagonized the deceased yet no evidence was availed before court that 2 nd house had ever engaged in any conduct that would warrant the exclusion.
32) It was submitted that it was evident that none of the attesting witnesses or the Advocate who drew the will were called as witnesses.
33) On the 3 rd issue it is submitted that the grant ought to be revoked on the following established cumulative grounds; Under section 76 of the Law of Succession Act (Cap. 160), a grant may be revoked or annulled at any time if:
a. the proceedings to obtain it were defective in substance;
b. it was obtained fraudulently by making a false statement or by concealment from the court of something material to the case; or
c. it was obtained by means of an untrue allegation of a fact essential in point of law.
34) It is submitted that the guiding principle on revocation was captured In re Estate of Julius Ndubi Javan (Deceased) [2018] eKLR, where the Court held that a grant founded on concealment or falsehood cannot stand, for it strikes at the very heart of justice and the integrity of the succession process
35) It is submitted that the objectors had established sufficient grounds to warrant the revocation of the grant of probate issued to the Petitioner on 10.12.2021 with costs; that the Petitioner deliberately concealed the existence of the alleged will and codicil from the rightful beneficiaries and only disclosed them after obtaining probate; that the circumstances under which the will and codicil surfaced, coupled with forensic discrepancies and the use of an ID number belonging to another person, render the instruments inherently suspect; The proceedings leading to the issuance of the grant were therefore defective in substance and the grant itself was fraudulently obtained within the meaning of section 76 (a), (b) and (c) of the Law of Succession Act.
PETITIONER’S
36) The petitioner began by pointing out that the 2 nd objector was deceased – and there had been no substitution.
37) The petitioner summarized the objectors and the petitioner’s cases as follows;
38) That the Objector's case is anchored on the contention that the Grant of Probate issued to the Petitioner was procured through concealment, misrepresentation, and fundamental irregularities, thereby falling squarely within the revocation grounds under section 76 of the Law of Succession Act. That it was the Objector’s evidence that the deceased, Isidore Mwangangi Masola, was polygamous with three households: the first family of the late Mary Mwangangi, with eleven children including the Objectors , the second family of the late Martha Mwangangi with two children ; and the Petitioner, who constituted the third household and lived with the Deceased until his demise.
39) That it is the Objectors’ case that introduction of the Petitioner into the first wife's home intensified pre-existing tensions within the family, resulting in the first wife's eviction, her exclusion from cultivating family land, and heightened friction between the Petitioner and the children of the first household.
40) That these tensions, culminated in the burning of the deceased's homestead in August 1992 , an incident the Objectors contend has been exaggerated and exploited by the Petitioner to justify their disinheritance.That the Objectors, maintain that the Deceased later reconciled with the first household through meetings held in 1992, after which he enjoyed cordial relations with them and that in his later years they cared for him, financed his medical needs, and regularly assisted him, demonstrating that any portrayal of long-standing hostility is inconsistent with the Deceased's lived reality.
41) That the central pillar of the Objector's case is that the Petitioner deliberately concealed the alleged will of 17 th May 1994 and the codicil of 20 th August 1992 until they filed Citation No. 5 of 2022 when the Petitioner disclosed the existence of the will, despite having already obtained a Grant in December 2021. That this prolonged silence, compounded by contradictions between her testimony and affidavits, is said to constitute fraudulent concealment of material facts intended to exclude the Objectors from the administration of their father's estate.
42) In addition the Objector impugns the authenticity of the codicil. It is argued that , arguing that it is prima facie irregular, has no attesting witnesses contrary to section 11 of the Law of Succession Act. The objectors also point out internal inconsistencies, including three different identification numbers, one confirmed by the National Registration Bureau to belong to an unrelated person, errors in the deceased's name, and misidentification of family members such as referring to Pauline Mwikali as "Ndunge." Given the deceased's meticulous nature and sound mental faculties at the time, they contend that such glaring errors are incompatible with authorship by the deceased. (emphasis added)
43) It was further the Objector's case that that the codicil narrates events in a manner inconsistent with established facts, including purported destruction of property at a time when the Deceased and the Petitioner had already relocated to Mweani Village with all household belongings, thereby casting further doubt on the credibility of the document.The validity of the Will dated 17 th May 1994 is challenged on the grounds that it is riddled with contradictions and inaccuracies, has an incorrect identification number, there ls omission of key properties such as the Aimi Ma Kilungu plot and Kitundu Farm, which the deceased later gifted or sold to members of the first family, there are material inconsistencies between the codicil and the will, e.g., the reallocation of Plot No. 1832; that the Petitioner’s elevation to wife status entitled to absolute ownership which would expire upon remarriage, was improper as her marriage was invalid due to the deceased's subsisting monogamous marriage contracted in 1945.
44) In her evidence, the Petitioner relied on her witness statement dated 24 February, 2023, her further affidavit dated 24th February, 2023, the List and Bundle of Documents dated 24th February, 2023 and Supplementary List and Bundle of Documents dated 6th November, 2024.
45) It is submitted that Petitioner emphatically denied the accusations of fraud, suppression, or nondisclosure and that not a single piece of credible evidence was produced support the allegations that she misled the Court or concealed material information, and that the Objectors allegations, did not satisfy any of the statutory grounds for revocation of the grant under section 76 of the LOSA.
46) Regarding the alleged concealment of the Will and codicil, it is the Petitioner’s position that the Objectors and members of the first family were informed of the will shortly after the deceased's death during a family meeting but that their reaction was aggressive; they rejected the will outright and vowed to "find alternative ways" of redistributing the estate . That it is this same hostility that brought about the deceased's sentiments as seen in his own written accounts. She states that in the records long before his death, the deceased describes years of aggression and mistreatment at the hands of the first household. Further that the Objectors, unsuccessfully attempted to sidestep lawful probate by improperly approaching the Deputy County Commissioner to transfer administration of the estate to the Public Trustee. She denied having ben summoned by the DCC.
47) It is the Petitioner’s position that both documents, the will and the 'codicil’ were duly executed by the Deceased who was meticulous and of sound mind ,voluntarily and in accordance with statutory requirements.
48) Regarding the expert opinion reports the Petitioner is in agreement with the objectors that expert opinions are merely advisory as per section 48 of the Evidence Act. It is the Petitioner’s case that the Objectors' assertions of inconsistencies, perceived errors in translations, spellings, or handwritten records do not amount to proof of forgery; Of the two reports the Petitioner submits that the DCI's DCI report is the official report produced by the government's primary forensic agency. That this confirmed that the handwriting and signatures matched the deceased's known samples. The court is urged to find that it carries significant probative weight ; that the fact that the Objectors' were dissatisfied with its conclusions did not invalidate it. That the EACC report remains advisory only.
49) That the fact that the will does not mention every property allegedly owned by the Deceased does not invalidate the will as legally the Deceased had absolute discretion to determine which properties to dispose of through his will and which ones to deal with inter vivos. In any event no evidence has been placed before the court to show that the alleged omitted properties formed part of the deceased’s free estate or that those properties were unknown to the Deceased when he prepared his will. Neither is there evidence that properties were improperly excluded, fraudulently omitted, or that the Petitioner played any role in their non-inclusion.
50) It is submitted that the objector’s is an impermissible invitation to the Court to rewrite the will to suit their expectations.
51) That any property omitted from the will, would simply fall into intestacy under section 34 of the Law of Succession Act.
52) It is submitted that the Objectors complaints revolve around historical grievances, dissatisfaction with their father’s choices, and speculative attacks on testamentary documents that were lawfully made . That they have failed to establish the requirements of section 76 of the Law of Succession Act as to whether the proceedings to obtain the grant were defective in substance; whether the grant was obtained fraudulently, or whether any essential allegation was false.
53) Further on the expert evidence the Petitioner set out a comparison of the testimony of each of the witnesses in detail. Chief Inspector Kimaiywa from DCI testified
a. that he held a Bachelor of Science degree in Mathematics from the University of Nairobi and was a trained document examiner at the DCI Forensic Documents Examination Lab and regional laboratories in Khartoum and had an experience of 7 years in document examination. He produced the said report, which was marked as EXHIBIT 2. 1
b. The DCI examiner undertook comparative analysis using standard forensic techniques including visual examination, magnification, stroke comparison, pen pressure assessment, writing rhythm, and alignment patterns Applying the principles of forensic document analysis, the examiner identified consistent handwriting characteristics between the deceased's known specimens and the signatures and handwriting on the questioned documents.
c. In his testimony and report, he concluded that the handwriting and signatures appearing on both the Will and the handwritten record were genuinely authored by the Deceased, clarifying that the signatures exhibited natural variation consistent with genuine writing, and no indications of tracing, simulation, or forgery were detected. The DCI examiner affirmed this position during oral testimony
d. In his oral testimony, he cited that the pen movements, pen characteristics, slanting of the characters, initial and terminal strokes, pen lifts, baseline adjustments, height ratios, mideon strokes, line and character spacing as well as the general resemblance pointed out that the writings were made by the same author, the Deceased.
e. That he reiterated that no writer can write the same every time and that this was due to natural variations that he was of the view that the EACC report did not beer any objectivity as it had been made to impeach him DCI report.
54) On the EACC report – It was submitted that this was brought on board because the objectors were dissatisfied with the DCI report. The Petitioner submitted;
i. The EACC examiner considered stroke formation, slant, spacing, connecting strokes, letter proportions, and stylistic patterns.
ii. In contrast to the DCI examiner, the EACC expert identified what he considered significant divergences between the deceased's known handwriting and the writing appearing on the questioned documents. He highlighted variations in letter construction, inconsistencies in slant and pressure patterns, differences in the configuration of certain characters, and departures from the writing rhythm observed in the specimen material. He also noted structural patterns in the questioned signatures that, in his view, were not characteristic of the deceased's normal writing habits.
iii. Based on these observations, the EACC examiner concluded that the handwriting and signatures on the contested Will and handwritten record were not authored by the deceased. He testified that the differences were substantial and could not be explained as natural variation.
55) From the foregoing the petitioner set out for determination the following issues:-
i. Whether the Objectors' challenge to the validity of the Will constitutes an afterthought outside their pleaded grounds.
ii. Whether the handwritten document dated 20th August 1992 (Black A4 book) constitutes a codicil, or whether it forms part of the Will by incorporation by reference.
iii. Whether the Will dated 17th May 1994 and the handwritten codicil dated 20th August 1992 were validly executed by the Deceased in accordance with the Law of Succession Act.
iv. Whether the Objectors have established any grounds under section 76 of the Law of Succession Act to justify revocation of the Grant of Probate
56) On the 1 st issue it was submitted that in Kenya, parties are strictly bound by their pleadings – and that a court is required to confine itself to issues properly joined. The petitioner relies on – Daniel Otieno Migore vs South Nyanza Sugar Co. ltd [2018] eKLR cited with approval in Omundi vs Josemo Distributors [2025] KEHC 1115 (KLR) where the court stated
“11. It is by now well settled by precedent that parties are bound by their pleadings and that evidence which tends to be at variance with the pleadings is for rejection. Pleadings are the bedrock upon which all the proceedings derive from. It hence follows that any evidence adduced
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