The Applicants herein, George Macridis Guto and Alice Mokeira Guto , applied for orders to confirm the Grant issued on 18 th September 2023 through an application dated 18 th April 2024.
The beneficiaries were however unable to agree on the mode of distribution of the estate of the late Jackson Guto Nyaboga . Parties thereafter agreed to canvass the issue of distribution of the deceased’s estate by way of viva voce evidence.
During the hearing on the mode of distribution of the estate, George Guto (DW1) referred to several documents including Land Searches which he produced as exhibits. His attempt to produce an alleged written Will was however opposed by Mr. Chadianya , Learned Counsel for Objector on the basis that the deceased had died intestate, without a Will. Counsel opposed the production of the Will on the basis that the same was not attested. He however urged the Petitioner to produce the original copy of the Will for the court’s consideration. The matter was thereafter adjourned to 2 nd October 2024 to enable the Petitioner avail the original copy of the Will.
When the matter came up for further hearing on 19 th March 2025, Mr. Nyambati , Learned Counsel for the Petitioner informed the court that the deceased died partially testate and partially intestate as he had left a Will in respect to part of his estate.
Mr. Chadianya however raised concern over the validity/authenticity of the said Will and argued that it had been tampered with as while the Will filed on 27 th May 2021 had the stamp of Ombachi & Co. Advocates , the Will filed on 18 th March 2025 had the stamp of the Chief of Nyansiongo Location . Counsel further noted that the pleadings filed by the Petitioners clearly indicated that the deceased died intestate. Reference was made to the case of Festo Lugadiri Abukira [2019] eKLR for the argument that parties cannot file 2 testates in one suit, that is, testate and intestate.
Mr. Nick Omari , a beneficiary, supported the argument made by Mr. Chadianya and submitted that the belated production of the Will was not procedural. Counsel also noted that the Will produced by Mr. Nyambati was not the same as the Will that was initially attached to the pleadings. Counsel noted that the Will had been introduced after the other parties had testified thus denying them the opportunity to interrogate it.
It was further submitted that the Will does not meet the admissibility test. For this argument, reference was made to the decision in Mohammed Abdi Mahmoud v Ahmed Abdullahi & 3 others [2018] eKLR where the Court discussed the circumstances under which documents can be admitted in evidence. Counsel informed the court that the alleged Will was a strange document that had been served upon him the previous evening thus violating the concept of fair hearing.
In a rejoinder, Mr. Nyambati for the Petitioners submitted that the issues raised on the Will were resjudicata as a similar issue was raised when the court directed the Petitioners to avail an original copy of the Will. Counsel explained/attributed the difference between the original copy produced and photocopy to a defect in the photo copier machine used to make the photocopy which did not capture the chief’s stamp. He urged the court to invoke its inherent powers under Section 117 of Evidence Act and admit the Will in evidence as it contains the deceased’s wishes which should guide the court when distributing the deceased’s estate.
This ruling is therefore in respect to the issue of whether the deceased’s alleged Will should be admitted in evidence.
I have carefully considered the rival arguments, by the parties, on the admissibility and validity of Will dated 9 th February 2015.
Section 11 of the Law of Succession Act (the Act) sets out the requirements for a valid written will as follows:
“No written will shall be valid unless—
a.the testator has signed or affixed his mark to the will, or it has been signed by some other person in the presence and by the direction of the testator;
b.the signature or mark of the testator, or the signature of the person signing for him, is so placed that it shall appear that it was intended thereby to give effect to the writing as a will;
c.the will is attested by two or more competent witnesses, each of whom must have seen the testator sign or affix his mark to the Will, or have seen some other person sign the will, in the presence and by the direction of the testator, or have received from the testator a personal acknowledgement of his signature or mark, or of the signature of that other person; and each of the witnesses must sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."
I have examined the impugned will dated 9 th February 2015 and I am not satisfied that it meets the requirement of section 11 of the Act. I note that even though the will appears to contain the name of the deceased and his his signature, the said will was not witnessed/attested by any witness. I find that on that account, the will is not a valid will within the context of the provisions of the Act.
I have also compared the Will that was originally attached to the Petitioners’ pleadings and the alleged original Will that was presented in court during the hearing. I note that there is a glaring difference between the alleged original Will and the photocopy that was filed together with the pleadings. While the original Will has the stamp and signature of the Chief of Nyansiongo Location, the photocopy that was filed with the pleadings does not have the said chief’s stamp and signature. The Petitioners’ Advocate attributed the difference on the said documents to a photocopier glitch. I however find that the explanation offered by the Petitioner’s Advocate was not plausible as there is no way that a photocopier can selectively omit only certain parts of the document that relate to the Chief. This lends credence to the Objectors’ claim that the Will had been tampered with.
Lastly, I note that the instant petition was filed as an intestate petition which means that the deceased died without a Will. I therefore find that the late introduction of the Will was not only prejudicial to the Objectors’ case but was also suspect coming at the eleventh hour when the Objectors had already closed their case.
For the reasons that I have stated in this ruling, I find that the objection to the production of the Will, as an exhibit in this case, is merited and I therefore allow it and expunge the said alleged Will from the court’s record.
It is so ordered.
The beneficiaries were however unable to agree on the mode of distribution of the estate of the late Jackson Guto Nyaboga . Parties thereafter agreed to canvass the issue of distribution of the deceased’s estate by way of viva voce evidence.
During the hearing on the mode of distribution of the estate, George Guto (DW1) referred to several documents including Land Searches which he produced as exhibits. His attempt to produce an alleged written Will was however opposed by Mr. Chadianya , Learned Counsel for Objector on the basis that the deceased had died intestate, without a Will. Counsel opposed the production of the Will on the basis that the same was not attested. He however urged the Petitioner to produce the original copy of the Will for the court’s consideration. The matter was thereafter adjourned to 2 nd October 2024 to enable the Petitioner avail the original copy of the Will.
When the matter came up for further hearing on 19 th March 2025, Mr. Nyambati , Learned Counsel for the Petitioner informed the court that the deceased died partially testate and partially intestate as he had left a Will in respect to part of his estate.
Mr. Chadianya however raised concern over the validity/authenticity of the said Will and argued that it had been tampered with as while the Will filed on 27 th May 2021 had the stamp of Ombachi & Co. Advocates , the Will filed on 18 th March 2025 had the stamp of the Chief of Nyansiongo Location . Counsel further noted that the pleadings filed by the Petitioners clearly indicated that the deceased died intestate. Reference was made to the case of Festo Lugadiri Abukira [2019] eKLR for the argument that parties cannot file 2 testates in one suit, that is, testate and intestate.
Mr. Nick Omari , a beneficiary, supported the argument made by Mr. Chadianya and submitted that the belated production of the Will was not procedural. Counsel also noted that the Will produced by Mr. Nyambati was not the same as the Will that was initially attached to the pleadings. Counsel noted that the Will had been introduced after the other parties had testified thus denying them the opportunity to interrogate it.
It was further submitted that the Will does not meet the admissibility test. For this argument, reference was made to the decision in Mohammed Abdi Mahmoud v Ahmed Abdullahi & 3 others [2018] eKLR where the Court discussed the circumstances under which documents can be admitted in evidence. Counsel informed the court that the alleged Will was a strange document that had been served upon him the previous evening thus violating the concept of fair hearing.
In a rejoinder, Mr. Nyambati for the Petitioners submitted that the issues raised on the Will were resjudicata as a similar issue was raised when the court directed the Petitioners to avail an original copy of the Will. Counsel explained/attributed the difference between the original copy produced and photocopy to a defect in the photo copier machine used to make the photocopy which did not capture the chief’s stamp. He urged the court to invoke its inherent powers under Section 117 of Evidence Act and admit the Will in evidence as it contains the deceased’s wishes which should guide the court when distributing the deceased’s estate.
This ruling is therefore in respect to the issue of whether the deceased’s alleged Will should be admitted in evidence.
I have carefully considered the rival arguments, by the parties, on the admissibility and validity of Will dated 9 th February 2015.
Section 11 of the Law of Succession Act (the Act) sets out the requirements for a valid written will as follows:
“No written will shall be valid unless—
a.the testator has signed or affixed his mark to the will, or it has been signed by some other person in the presence and by the direction of the testator;
b.the signature or mark of the testator, or the signature of the person signing for him, is so placed that it shall appear that it was intended thereby to give effect to the writing as a will;
c.the will is attested by two or more competent witnesses, each of whom must have seen the testator sign or affix his mark to the Will, or have seen some other person sign the will, in the presence and by the direction of the testator, or have received from the testator a personal acknowledgement of his signature or mark, or of the signature of that other person; and each of the witnesses must sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."
I have examined the impugned will dated 9 th February 2015 and I am not satisfied that it meets the requirement of section 11 of the Act. I note that even though the will appears to contain the name of the deceased and his his signature, the said will was not witnessed/attested by any witness. I find that on that account, the will is not a valid will within the context of the provisions of the Act.
I have also compared the Will that was originally attached to the Petitioners’ pleadings and the alleged original Will that was presented in court during the hearing. I note that there is a glaring difference between the alleged original Will and the photocopy that was filed together with the pleadings. While the original Will has the stamp and signature of the Chief of Nyansiongo Location, the photocopy that was filed with the pleadings does not have the said chief’s stamp and signature. The Petitioners’ Advocate attributed the difference on the said documents to a photocopier glitch. I however find that the explanation offered by the Petitioner’s Advocate was not plausible as there is no way that a photocopier can selectively omit only certain parts of the document that relate to the Chief. This lends credence to the Objectors’ claim that the Will had been tampered with.
Lastly, I note that the instant petition was filed as an intestate petition which means that the deceased died without a Will. I therefore find that the late introduction of the Will was not only prejudicial to the Objectors’ case but was also suspect coming at the eleventh hour when the Objectors had already closed their case.
For the reasons that I have stated in this ruling, I find that the objection to the production of the Will, as an exhibit in this case, is merited and I therefore allow it and expunge the said alleged Will from the court’s record.
It is so ordered.