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1. Joseph Mutua Munyao died on 28/1/2023.
2. On 28/7/2023 Antony Kyalo Mutiso filed petition for probate of written will dated 27/6/2023. He deponed that he was one of the persons named in the will as the executor , and it was the true and original last will of the deceased.
3. He deponed that the will was dated 8/5/2020 and he was seeking grant of representation. He deponed that the full inventory of the assets and liabilities of the deceased were:-
- Makueni/Kikumini/450 & 593
- Shop at West Ngosini Market
- Money in Bank & Sacco
- His other possessions.
4. Attached to the affidavit in support is the certificate of death showing that Joseph Mutua Munyao died on 28/1/2023 from complications of hypertension.
5. Also annexed is the document dated 8/5/2020 headed “ this is the last will and testament of one Joseph Mutua Munyao ID NO. 2993949 c/o Chief Kikumini Sublocation P O Box 1, Makueni.
6. In the will he states “I give, devise & bequeath” all his assets to Benjamin Mutie Munyao absolutely.
7. The will is signed by the deceased in the presence of the Advocate Joseph M. Mwongela, and two attesting witnesses.- John Kinama Waita & Boniface Mutinda Makovo whose identity card numbers and signatures appear on page 2 of the will.
8. Jefferson Mutisya Munyao filed an objection to the making of a grant on 22/8/2023 dated 18/8/2023. The objection is brought under Rule 17 of the P&A Rules, 1980.
9. He states that the Objection is brought in the interest of himself, Meshack Mutua Munyao & Elizabeth Mbula Kanini - annexed to the Objection is a letter from the chief Kikumini Location dated 29/5/2023 showing that the deceased was survived by three sons and a daughter in law.
10. His objection states that there was no valid will, that the purported will is fraudulent, and that some of the properties bequeathed Benjamin Mutie do not exist, and some of the attesting witnesses in the alleged will say they did not witness any will.
11. The objector then filed the application dated 10/1/2024 on 18/1/2024 a chamber summons brought under section 5, 7, 8, 11, 16, 17, 18, 26, 27, 28, 29 of the Law Succession of Act and Rule 17(15) of the P&A Rules.
12. He seeks orders:-
That the will executed by deceased dated 8/5/2020 is invalid, null and void and that to court do find that he – Jefferson Mutisya Munyao a dependent of the deceased and is entitled to a reasonable portion of his estate.
13. The grounds for the application are inter alia:-
i. That the will was procured through fraud; that some of the alleged witnesses to the will signed blank pieces of paper and did not witness the testator execute the same; and that some of the dependents of the deceased – are disinherited, discriminated upon and have nowhere to go or call home despite their houses being on the parcel of land Makueni/Kikumini/450; that the applicant and other beneficiaries relied on the deceased during his life time and have not been provided for; that the will is unfair, discriminatory, unconstitutional, illegal and no explanation was offered as to why the other beneficiaries were left out; and that it was surprising that only the last born was the one provided for, while the rest were left out.
14. The application is supported by the affidavit of the applicant, John Kimama Waita, Pius Ndiku Waita and Stanslaus Matata Kiovi.
15. The application is opposed by the Executor - Antony Kyalo Mutiso.
16. He depones inter alia that it is not true that the will was obtained through any fraudulent means.
17. That two of the beneficiaries who have been left out of the will have no problem with the will – i.e., Meshack Mutua Munyao - a son of the deceased and Elizabeth Mbula Munyao - the daughter in law of the deceased and each has chosen to respect the will of the deceased.
In addition – that other than the will the deceased recorded by his own hand his wishes dated 12/1/2021. He annexed the will, and the document in Kikamba, and its translation.
18. The application was heard by way of viva voce evidence.
19. The objector testified and called 3 witnesses.
20. The executor testified and called 6 witnesses.
21. At the close of both their cases parties chose to file and serve each other with written submissions.
22. I have considered the evidence, the submissions and it is common ground that the issues for determination are:-
i. Whether the will dated 8/5/2020 is valid and;
ii. Whether the objector is entitled to benefit from/or whether provision should be made for the objection from the will.
23. On validity or otherwise of the will.
24. The deceased appointed Antony Kyalo Mutiso and Joseph M. Mwongela as the executors of the will.
25. The Objector’s grounds for the annulment of the will is that it was obtained by way of fraud, & that it was not signed by some of the witnesses.
26. The objector relies on Section 11, the Executor cites Section 5, 7 and 11 of the Law of Succession Act.
27. Section 11 speaks to the validity of a will.
28. The Objector lays emphases on section 11 (c) of the Law of Succession Act arguing that one John Kinama Waita Objectors Witness 2 testified that he did not witness the Testator sign the will, and that he too did not sign the will but that he was given blank paper to sign. He also argues that the Executor witness 3, Boniface Makovo also testified that he did not see the Testator sign the will. It is argued for the objector that this evidence indicates that only one person can be said to have properly attested the will – and that going by William Muthama Mweka Vs Marina Centra Ndinguri & Another [2015] eKLR the will is invalid for having been attested by one person.
29. For the executor it is submitted that Objector witness 2 testified he thought he was signing loan forms - and that he signed a blank paper. However, on being shown the page in the will - he identified his signature, his ID Card number. That Executor witness 1 - Advocate and Co-executor told the court that the testator called his witnesses together to Aroma Hotel - that the counsel briefed all of them before they signed the document - and that Objector witness 2 signed it knowing what he was signing. That testimony of Executor Witness 1 was corroborated by Boniface Executor Witness 2, the 1st Executor and Executor Witness 3 Boniface Mutinda Makove.
30. On this issue of signature, I have looked at the evidence of Executor witness 3. He told the court that he was with Objector witness 3 John Kinama, the Testator, and the lawyer. That the testator told them he had a will which he wanted them to sign – he said the testator signed first, then Kinama , then himself, then the Wakili.
31. It is therefore not true that the evidence of Executor witness 3 supports that of Objector witness 3 that they did not witness the testator sign with will.
32. I have the testimony of the advocate, the affidavit of the 1st testator and the testimony of Boniface Makove that they all know why the testator invited them to the meeting at Aroma hotel - that the Wakili explained and that they signed the document after the testator. In the face of the of this evidence and that of Kinama his testimony is unbelievable. That the testator would collect 4 adult men – have an advocate present, request him to sign documents, which he assumed were loan documents - in a very different atmosphere than the usual one; he ought to have been the one to ask questions as to why he was signing the usual loan forms in the presence of other people.
Secondly did he say in the same breath and that he signed blank papers and that he signed documents he thought were loan forms? Would the loan forms he said he “usually” signed for testator be blank as well? These questions were not answered .
33. My view of the matter is that when it emerged that the testator had completely disinherited his other children - and had accompanied the same with curses Objector’s witnesses 3 did not want to be associated with the whole thing.
34. In my considered view the evidence before me clearly demonstrates that the will was properly attested, I am satisfied that Objector witness 3, Executor witness 3, and the testator signed the will, and that the attesting witnesses saw the testator sign the will as well.
35. The other allegation is that the will was obtained fraudulently.
36. In his submissions the objector appears to have abandoned this ground. It is noteworthy that even in his testimony he did not pursue this ground – However he raised it in the application .
The objector had the burden of proof to establish this ground - as is required by Section 109 of the Evidence Act.
“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 in a particular person .”
37. The applicant cited - Elizabeth Kamene Ndolo Vs George Matata Ndolo [1996] eKLR where the Court of Appeal was categorical that he who alleges that a will is a forgery/ that there was fraud bears the burden to prove that; and the burden of proof is higher than in ordinary civil cases -
The objector did not state who it is that obtained the will fraudulently – if he meant the Executor witness 7, he did not name him, neither did he accuse the executors or the witnesses to the will - so who is that obtained the will fraudulently - and what was the fraud that he claims was committed?
Having abandoned this ground, I can only state that I did not find any evidence of fraud.
38. The other ground is that the testator disinherited the rest of the beneficiaries without giving any reasons.
39. It is important to note here that the other beneficiaries testified as EW5 (son) and EW4 (daughter in law) each of them told the court they did not have any problem with the deceased’s will. EW5 the other son told the court that “I spoke to father. I told him I was not interested in his property - he could sell it, use it for his up keep/medical” Asked why he did so, he said it was for “personal reasons” he said he had no problem with his father leaving everything to his younger brother.
40. EW4 the daughter in law told the court “ I do not want anything from my father in law’s property, I do not want my children to get anything from there.”
41. This leaves the objector as the only child of the testator who is objected to the will.
42. Is he entitled to benefit from the estate of the deceased?
43. The objector’s position is against the fact of being disinherited without any reasons.
44. The objector cites Muthama Mweka vs Marina Ndinguri & Anor where the court stated;
“The will also contravenes the Law of Succession Act specifically section 38 that requires the children of the deceased to be treated equally when it came to the distribution of this estate to the beneficiaries, the general rule is that a will can be invalidated where it is established that the distribution to the beneficiaries was unequal as to constitute unfair treatment to the affected beneficiaries.
45. It is submitted that the will offends the principle of equal treatment of all children of the deceased and gave no reasons for the unequal distribution.
46. For the Executor it is submitted that there is no legal basis for the submissions that the testator had to give reasons for the distribution in the will. That William Muthama Mweka was distinguishable because the court did not make the finding that reasons ought to be recorded in the will.
47. It is submitted for the Executor that the journal “wishes” of the deceased produced in court gave reasons why the deceased disinherited his children - that clearly, he had poor relationship with his other children other than Benjamin Mutie. That in the journal the deceased lamented the neglect and insults by his other children – and even went to the extent of cursing them.
48. For the objector it is submitted that the journal was not part of the will or a codicil to the will. It is submitted that the “law is very clear that reasons for disinheriting a beneficiary ought to be given/explained in the will not in a separate document which is part and parcel of the will.
49. I have perused the Law of Succession Act Section 5 – 22 and first schedule of the Laws of Succession Act on construction of wills. I have not found any express provision requiring that any reasons for not bequeathing anything to any of the beneficiaries. It was upon the objector to set down before the court – evidence of the said clarity of the law that the testator must give reasons for not providing for any beneficiary in the will.
50. From the foregoing I am satisfied that there is no reason to invalidate the will.
51. The objector seeks this court’s discretion under Section 26,27,28 and 29 of the Law of Succession Act on the provision for a dependant not adequately provided for.
52. The objector relies on Section 29 of the Law of Succession Act and submits that he was dependent of the deceased prior to his death.
53. Dependency must be established. Section 29 (b) defines it thus:-
such of the deceased’s …. Children whom the deceased had taken into the family …. As were being maintained by the deceased immediately, prior to his death.
54. Section 28 provides the court with the “circumstances” to be considered in making an order for provision for a dependant not provided for in a will.
55. The objector in his testimony told the court how he and his father planted mango trees and ndengu from which he got money and paid fees for his children. He said his father supported him financially.
56. On cross examination it emerged that he had lived in Athi River for at least 13 years prior to the death of his father. His brother testified that none of them were dependent on their father after they had completed school. His sister-in-law told the court that the objector rarely went home to visit his father – and the objector produced no evidence to establish that he was dependent on his father.
57. The evidence before court was that the father had been sick for a long time – and required support from his children which support only came from EW7 the sole beneficiary to the estate. EW4 the daughter in law told the court that the deceased was not working and most of the support she got from him was what EW7 gave him, and he supported her in turn.
58. The objector tried – but did not succeed to demonstrate to the court his dependency on his father – there was evidence that he either ran a business or was in gainful employment he and his wife - that his 3 children were in school – he refused to disclose which schools - and his brother and sister-in-law were categorical that none of the deceased’s children were dependent on him prior to his death.
59. The objector referred the court to Re Estate of Lusila Wairu Waweru (deceased) [2020] eKLR for the preposition that even though the relation between the deceased and his child was strained - the court had authority under Section 26 to make provisions from the beneficiaries.
60. In this case - there was no dependency. None was established, to move the court to exercise its discretion. In addition, it was not disputed that a year after making the will the deceased penned down his wishes. This document demonstrated the bitterness of a parent against his children. He stated there in that the objector and some of his siblings had neglected him in sickness and had insulted him saying he had djinns and to him that was sufficient to him to cut them out of his will. He not only cut them off but assigned them curses should they go against his wishes. This was so serious that even the clan - whose role is to reconcile families found it difficult to intervene, it would appear that the EW4 and EW5 took it seriously and did not went to incur the curses of their father.
61. EW7 the sole beneficiary of the will feels bound to comply as per his father’s wishes.
62. Under Section 26 of the Law of Succession Act , the relationship between the beneficiary, applicant and the deceased is one of the considerations to be taken into account.
63. In this case - the objector and his father did not have a good relationship - and this started when he was a teenager and went on to his adulthood. The deceased went to the extent of documenting that relationship - that those who neglected him in life, should not support him in death and should not come after his property. He noted that he had educated them – but they had not supported him - that EW7 , the child whose education was paid for by other people through scholarships supported and cared for him- and respected him – yet the ones he had toiled for neglected and insulted him.
64. The objector urged the court not to consider this journal of the deceased because it was not part of his will- however it was agreed all round that the deceased wrote the said document - what he wrote there was supported by the evidence of EW4, EW5 and the objector confirmed that parts were in his father’s hand writing. See John Gitata Mwangi & 3 others vs Jonathan Njuguna Mwangi & 4 others [1999] eKLR.
65. The mere fact that one is a child of another does not automatically make them an heir - where a deceased person chooses to make a will, and decides how to distribute his property – the person challenging that distribution must provide evidence of dependency – and the exercise of the court’s discretion is not absolute – it is guided by the evidence and Section 26 of the Law of Succession Act.
66. A person who has the capacity to make a will can do whatever they wish with their property see Re Estate of Nditu Kihaguru (deceased) [2022] eKLR.
67. No child should feel so entitled to their parent’s estate to defy parental authority.
68. This father retired between 2003 – 2004.
69. It appears form the evidence before me that the deceased had issues with all his children - the last born, the sole beneficiary of estate was away from home from 2008 to 2015 . His mother had cancer in 2014 – and he took care of the bills singlehandedly. - even when she needed a blood transfusion his brothers refused to donate blood. That his father began falling sick in 2015 but his brothers did not support his treatment- that only his sister-in-law showed up to donate blood.
70. The picture that came through the viva voce hearing is that the deceased made a decision - clear headed decision on what to do with his property. At that time, he was dependent on others and the objector was not depending on him
71. The objector did not also establish that he had a house on the land or that he would be rendered homeless. What was evident was that the objector has live away from the deceased’s home for a long period hardly visiting the place. He did not provide evidence of any exclave use of any part of the deceased’s land to make money to support himself.
72. In the end - I find that the objector has failed to establish dependency to warrant the exercise of the discretion of this court in his favour.
73. The application fails for the following reasons:-
i. The will was properly attested
ii. No evidence of fraud/forgery was placed before court
iii. No proof of dependency by the objector
iv. Nothing to persuade the court to exercise its discretion in his favour
v. No order for dependency
In dismissing the objection, I must state that this is one of the cases that demonstrates that there is entitlement to a parent’s property. It should also be cautionary that the siblings of the EW7 including the objector not harbour any ill feelings toward him . It is evident that this was not his making and that their father made his own decision and put it down clearly in black and white. It would be unfortunate if the siblings held this outcome against their brother. The material things that belonged to their father should not create enmity among them.
The objection is dismissed .
The petition for probate of written will dated 27/6/2023 be and is hereby allowed and a certificate of confirmation of grant to issue accordingly.
Each party to bear its own costs
Dated, signed and delivered on CTS on 14th November 2025
Mumbua T. Matheka
Judge
CA Chrispol
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1. Joseph Mutua Munyao died on 28/1/2023.
2. On 28/7/2023 Antony Kyalo Mutiso filed petition for probate of written will dated 27/6/2023. He deponed that he was one of the persons named in the will as the executor , and it was the true and original last will of the deceased.
3. He deponed that the will was dated 8/5/2020 and he was seeking grant of representation. He deponed that the full inventory of the assets and liabilities of the deceased were:-
- Makueni/Kikumini/450 & 593
- Shop at West Ngosini Market
- Money in Bank & Sacco
- His other possessions.
4. Attached to the affidavit in support is the certificate of death showing that Joseph Mutua Munyao died on 28/1/2023 from complications of hypertension.
5. Also annexed is the document dated 8/5/2020 headed “ this is the last will and testament of one Joseph Mutua Munyao ID NO. 2993949 c/o Chief Kikumini Sublocation P O Box 1, Makueni.
6. In the will he states “I give, devise & bequeath” all his assets to Benjamin Mutie Munyao absolutely.
7. The will is signed by the deceased in the presence of the Advocate Joseph M. Mwongela, and two attesting witnesses.- John Kinama Waita & Boniface Mutinda Makovo whose identity card numbers and signatures appear on page 2 of the will.
8. Jefferson Mutisya Munyao filed an objection to the making of a grant on 22/8/2023 dated 18/8/2023. The objection is brought under Rule 17 of the P&A Rules, 1980.
9. He states that the Objection is brought in the interest of himself, Meshack Mutua Munyao & Elizabeth Mbula Kanini - annexed to the Objection is a letter from the chief Kikumini Location dated 29/5/2023 showing that the deceased was survived by three sons and a daughter in law.
10. His objection states that there was no valid will, that the purported will is fraudulent, and that some of the properties bequeathed Benjamin Mutie do not exist, and some of the attesting witnesses in the alleged will say they did not witness any will.
11. The objector then filed the application dated 10/1/2024 on 18/1/2024 a chamber summons brought under section 5, 7, 8, 11, 16, 17, 18, 26, 27, 28, 29 of the Law Succession of Act and Rule 17(15) of the P&A Rules.
12. He seeks orders:-
That the will executed by deceased dated 8/5/2020 is invalid, null and void and that to court do find that he – Jefferson Mutisya Munyao a dependent of the deceased and is entitled to a reasonable portion of his estate.
13. The grounds for the application are inter alia:-
i. That the will was procured through fraud; that some of the alleged witnesses to the will signed blank pieces of paper and did not witness the testator execute the same; and that some of the dependents of the deceased – are disinherited, discriminated upon and have nowhere to go or call home despite their houses being on the parcel of land Makueni/Kikumini/450; that the applicant and other beneficiaries relied on the deceased during his life time and have not been provided for; that the will is unfair, discriminatory, unconstitutional, illegal and no explanation was offered as to why the other beneficiaries were left out; and that it was surprising that only the last born was the one provided for, while the rest were left out.
14. The application is supported by the affidavit of the applicant, John Kimama Waita, Pius Ndiku Waita and Stanslaus Matata Kiovi.
15. The application is opposed by the Executor - Antony Kyalo Mutiso.
16. He depones inter alia that it is not true that the will was obtained through any fraudulent means.
17. That two of the beneficiaries who have been left out of the will have no problem with the will – i.e., Meshack Mutua Munyao - a son of the deceased and Elizabeth Mbula Munyao - the daughter in law of the deceased and each has chosen to respect the will of the deceased.
In addition – that other than the will the deceased recorded by his own hand his wishes dated 12/1/2021. He annexed the will, and the document in Kikamba, and its translation.
18. The application was heard by way of viva voce evidence.
19. The objector testified and called 3 witnesses.
20. The executor testified and called 6 witnesses.
21. At the close of both their cases parties chose to file and serve each other with written submissions.
22. I have considered the evidence, the submissions and it is common ground that the issues for determination are:-
i. Whether the will dated 8/5/2020 is valid and;
ii. Whether the objector is entitled to benefit from/or whether provision should be made for the objection from the will.
23. On validity or otherwise of the will.
24. The deceased appointed Antony Kyalo Mutiso and Joseph M. Mwongela as the executors of the will.
25. The Objector’s grounds for the annulment of the will is that it was obtained by way of fraud, & that it was not signed by some of the witnesses.
26. The objector relies on Section 11, the Executor cites Section 5, 7 and 11 of the Law of Succession Act.
27. Section 11 speaks to the validity of a will.
28. The Objector lays emphases on section 11 (c) of the Law of Succession Act arguing that one John Kinama Waita Objectors Witness 2 testified that he did not witness the Testator sign the will, and that he too did not sign the will but that he was given blank paper to sign. He also argues that the Executor witness 3, Boniface Makovo also testified that he did not see the Testator sign the will. It is argued for the objector that this evidence indicates that only one person can be said to have properly attested the will – and that going by William Muthama Mweka Vs Marina Centra Ndinguri & Another [2015] eKLR the will is invalid for having been attested by one person.
29. For the executor it is submitted that Objector witness 2 testified he thought he was signing loan forms - and that he signed a blank paper. However, on being shown the page in the will - he identified his signature, his ID Card number. That Executor witness 1 - Advocate and Co-executor told the court that the testator called his witnesses together to Aroma Hotel - that the counsel briefed all of them before they signed the document - and that Objector witness 2 signed it knowing what he was signing. That testimony of Executor Witness 1 was corroborated by Boniface Executor Witness 2, the 1st Executor and Executor Witness 3 Boniface Mutinda Makove.
30. On this issue of signature, I have looked at the evidence of Executor witness 3. He told the court that he was with Objector witness 3 John Kinama, the Testator, and the lawyer. That the testator told them he had a will which he wanted them to sign – he said the testator signed first, then Kinama , then himself, then the Wakili.
31. It is therefore not true that the evidence of Executor witness 3 supports that of Objector witness 3 that they did not witness the testator sign with will.
32. I have the testimony of the advocate, the affidavit of the 1st testator and the testimony of Boniface Makove that they all know why the testator invited them to the meeting at Aroma hotel - that the Wakili explained and that they signed the document after the testator. In the face of the of this evidence and that of Kinama his testimony is unbelievable. That the testator would collect 4 adult men – have an advocate present, request him to sign documents, which he assumed were loan documents - in a very different atmosphere than the usual one; he ought to have been the one to ask questions as to why he was signing the usual loan forms in the presence of other people.
Secondly did he say in the same breath and that he signed blank papers and that he signed documents he thought were loan forms? Would the loan forms he said he “usually” signed for testator be blank as well? These questions were not answered .
33. My view of the matter is that when it emerged that the testator had completely disinherited his other children - and had accompanied the same with curses Objector’s witnesses 3 did not want to be associated with the whole thing.
34. In my considered view the evidence before me clearly demonstrates that the will was properly attested, I am satisfied that Objector witness 3, Executor witness 3, and the testator signed the will, and that the attesting witnesses saw the testator sign the will as well.
35. The other allegation is that the will was obtained fraudulently.
36. In his submissions the objector appears to have abandoned this ground. It is noteworthy that even in his testimony he did not pursue this ground – However he raised it in the application .
The objector had the burden of proof to establish this ground - as is required by Section 109 of the Evidence Act.
“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 in a particular person .”
37. The applicant cited - Elizabeth Kamene Ndolo Vs George Matata Ndolo [1996] eKLR where the Court of Appeal was categorical that he who alleges that a will is a forgery/ that there was fraud bears the burden to prove that; and the burden of proof is higher than in ordinary civil cases -
The objector did not state who it is that obtained the will fraudulently – if he meant the Executor witness 7, he did not name him, neither did he accuse the executors or the witnesses to the will - so who is that obtained the will fraudulently - and what was the fraud that he claims was committed?
Having abandoned this ground, I can only state that I did not find any evidence of fraud.
38. The other ground is that the testator disinherited the rest of the beneficiaries without giving any reasons.
39. It is important to note here that the other beneficiaries testified as EW5 (son) and EW4 (daughter in law) each of them told the court they did not have any problem with the deceased’s will. EW5 the other son told the court that “I spoke to father. I told him I was not interested in his property - he could sell it, use it for his up keep/medical” Asked why he did so, he said it was for “personal reasons” he said he had no problem with his father leaving everything to his younger brother.
40. EW4 the daughter in law told the court “ I do not want anything from my father in law’s property, I do not want my children to get anything from there.”
41. This leaves the objector as the only child of the testator who is objected to the will.
42. Is he entitled to benefit from the estate of the deceased?
43. The objector’s position is against the fact of being disinherited without any reasons.
44. The objector cites Muthama Mweka vs Marina Ndinguri & Anor where the court stated;
“The will also contravenes the Law of Succession Act specifically section 38 that requires the children of the deceased to be treated equally when it came to the distribution of this estate to the beneficiaries, the general rule is that a will can be invalidated where it is established that the distribution to the beneficiaries was unequal as to constitute unfair treatment to the affected beneficiaries.
45. It is submitted that the will offends the principle of equal treatment of all children of the deceased and gave no reasons for the unequal distribution.
46. For the Executor it is submitted that there is no legal basis for the submissions that the testator had to give reasons for the distribution in the will. That William Muthama Mweka was distinguishable because the court did not make the finding that reasons ought to be recorded in the will.
47. It is submitted for the Executor that the journal “wishes” of the deceased produced in court gave reasons why the deceased disinherited his children - that clearly, he had poor relationship with his other children other than Benjamin Mutie. That in the journal the deceased lamented the neglect and insults by his other children – and even went to the extent of cursing them.
48. For the objector it is submitted that the journal was not part of the will or a codicil to the will. It is submitted that the “law is very clear that reasons for disinheriting a beneficiary ought to be given/explained in the will not in a separate document which is part and parcel of the will.
49. I have perused the Law of Succession Act Section 5 – 22 and first schedule of the Laws of Succession Act on construction of wills. I have not found any express provision requiring that any reasons for not bequeathing anything to any of the beneficiaries. It was upon the objector to set down before the court – evidence of the said clarity of the law that the testator must give reasons for not providing for any beneficiary in the will.
50. From the foregoing I am satisfied that there is no reason to invalidate the will.
51. The objector seeks this court’s discretion under Section 26,27,28 and 29 of the Law of Succession Act on the provision for a dependant not adequately provided for.
52. The objector relies on Section 29 of the Law of Succession Act and submits that he was dependent of the deceased prior to his death.
53. Dependency must be established. Section 29 (b) defines it thus:-
such of the deceased’s …. Children whom the deceased had taken into the family …. As were being maintained by the deceased immediately, prior to his death.
54. Section 28 provides the court with the “circumstances” to be considered in making an order for provision for a dependant not provided for in a will.
55. The objector in his testimony told the court how he and his father planted mango trees and ndengu from which he got money and paid fees for his children. He said his father supported him financially.
56. On cross examination it emerged that he had lived in Athi River for at least 13 years prior to the death of his father. His brother testified that none of them were dependent on their father after they had completed school. His sister-in-law told the court that the objector rarely went home to visit his father – and the objector produced no evidence to establish that he was dependent on his father.
57. The evidence before court was that the father had been sick for a long time – and required support from his children which support only came from EW7 the sole beneficiary to the estate. EW4 the daughter in law told the court that the deceased was not working and most of the support she got from him was what EW7 gave him, and he supported her in turn.
58. The objector tried – but did not succeed to demonstrate to the court his dependency on his father – there was evidence that he either ran a business or was in gainful employment he and his wife - that his 3 children were in school – he refused to disclose which schools - and his brother and sister-in-law were categorical that none of the deceased’s children were dependent on him prior to his death.
59. The objector referred the court to Re Estate of Lusila Wairu Waweru (deceased) [2020] eKLR for the preposition that even though the relation between the deceased and his child was strained - the court had authority under Section 26 to make provisions from the beneficiaries.
60. In this case - there was no dependency. None was established, to move the court to exercise its discretion. In addition, it was not disputed that a year after making the will the deceased penned down his wishes. This document demonstrated the bitterness of a parent against his children. He stated there in that the objector and some of his siblings had neglected him in sickness and had insulted him saying he had djinns and to him that was sufficient to him to cut them out of his will. He not only cut them off but assigned them curses should they go against his wishes. This was so serious that even the clan - whose role is to reconcile families found it difficult to intervene, it would appear that the EW4 and EW5 took it seriously and did not went to incur the curses of their father.
61. EW7 the sole beneficiary of the will feels bound to comply as per his father’s wishes.
62. Under Section 26 of the Law of Succession Act , the relationship between the beneficiary, applicant and the deceased is one of the considerations to be taken into account.
63. In this case - the objector and his father did not have a good relationship - and this started when he was a teenager and went on to his adulthood. The deceased went to the extent of documenting that relationship - that those who neglected him in life, should not support him in death and should not come after his property. He noted that he had educated them – but they had not supported him - that EW7 , the child whose education was paid for by other people through scholarships supported and cared for him- and respected him – yet the ones he had toiled for neglected and insulted him.
64. The objector urged the court not to consider this journal of the deceased because it was not part of his will- however it was agreed all round that the deceased wrote the said document - what he wrote there was supported by the evidence of EW4, EW5 and the objector confirmed that parts were in his father’s hand writing. See John Gitata Mwangi & 3 others vs Jonathan Njuguna Mwangi & 4 others [1999] eKLR.
65. The mere fact that one is a child of another does not automatically make them an heir - where a deceased person chooses to make a will, and decides how to distribute his property – the person challenging that distribution must provide evidence of dependency – and the exercise of the court’s discretion is not absolute – it is guided by the evidence and Section 26 of the Law of Succession Act.
66. A person who has the capacity to make a will can do whatever they wish with their property see Re Estate of Nditu Kihaguru (deceased) [2022] eKLR.
67. No child should feel so entitled to their parent’s estate to defy parental authority.
68. This father retired between 2003 – 2004.
69. It appears form the evidence before me that the deceased had issues with all his children - the last born, the sole beneficiary of estate was away from home from 2008 to 2015 . His mother had cancer in 2014 – and he took care of the bills singlehandedly. - even when she needed a blood transfusion his brothers refused to donate blood. That his father began falling sick in 2015 but his brothers did not support his treatment- that only his sister-in-law showed up to donate blood.
70. The picture that came through the viva voce hearing is that the deceased made a decision - clear headed decision on what to do with his property. At that time, he was dependent on others and the objector was not depending on him
71. The objector did not also establish that he had a house on the land or that he would be rendered homeless. What was evident was that the objector has live away from the deceased’s home for a long period hardly visiting the place. He did not provide evidence of any exclave use of any part of the deceased’s land to make money to support himself.
72. In the end - I find that the objector has failed to establish dependency to warrant the exercise of the discretion of this court in his favour.
73. The application fails for the following reasons:-
i. The will was properly attested
ii. No evidence of fraud/forgery was placed before court
iii. No proof of dependency by the objector
iv. Nothing to persuade the court to exercise its discretion in his favour
v. No order for dependency
In dismissing the objection, I must state that this is one of the cases that demonstrates that there is entitlement to a parent’s property. It should also be cautionary that the siblings of the EW7 including the objector not harbour any ill feelings toward him . It is evident that this was not his making and that their father made his own decision and put it down clearly in black and white. It would be unfortunate if the siblings held this outcome against their brother. The material things that belonged to their father should not create enmity among them.
The objection is dismissed .
The petition for probate of written will dated 27/6/2023 be and is hereby allowed and a certificate of confirmation of grant to issue accordingly.
Each party to bear its own costs
Dated, signed and delivered on CTS on 14th November 2025
Mumbua T. Matheka
Judge
CA Chrispol
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