1. Before this court is a summons for revocation dated 9th February 2024, seeking the following orders:
a) Spent;
b) That the order dismissing this cause on the 28th April 2023, be set aside and the cause herein be reinstated;
c) That the grant of probate issued to Marie Russman on the 5th July 2010, and confirmed on the 21st March 2011, be revoked on the ground that the proceedings to obtain the grant were defective in substance, and the grant was obtained fraudulently by the making of a false statement and the concealment from the court of material information;
d) That the will prepared and thumb –printed by the deceased was fraudulently prepared on the grounds that the deceased was not aware of the contents of the said will, had on the 26th May 2008 prepared a different will, the deceased did not append her signature though she knew how to write, the deceased was mentally unsound and suffering dementia at the time of execution of the will;
e) That consequent to revocation of the grant of probate of the written will issued on the 21st March 2011, this honourable court does appoint Roy Jimmy Ernestine and Alissandra Roy Ernestine as administrators of the estate of Adriana Ernestine (deceased).
f) That this court grants any other order it deems fit in view of the totality of the circumstances herein.
g) The costs of this application
2. The application is based on the grounds stated therein and on the supporting affidavit of Alissandra Roy Ernestine. She stated that she is a grandchild of the deceased and a daughter of Roy Henry Ernestine, the deceased’s son, who died on 29th June 2014. She further stated that the deceased died intestate at Mombasa Hospital after suffering for over 2 years from ischaemic heart disease, hypertension, epilepsy and loss of memory/dementia, and that she and the applicants lived with her and looked after her until the end.
3. She further stated that the deceased was buried on Plot Number 3047 (Original No. 284/167), Section III, Mainland North, and that the executrixes, Marie Russman and Anna Jane Bowskill, did not attend her funeral. That her father, his two wives, and children lived on the said plot prior to the subdivision carried out by her uncle Joseph Leslie, and that he built two houses thereon with the deceased’s permission and consent. That the conflict between her father and the deceased arose when her father decided to marry a second wife. The dispute was subsequently resolved, and all lived harmoniously on the farm, with the father eventually building a second home and marrying a second wife, Sidi Jefwa.
4. She averred that her father had several children, including the 1st to 10th applicants, all of whom reside on the said property with the deceased's consent, including a minor named Jacky Ernestine. She contended that she resides on the said property with her husband and children, namely Tommy Ernestine, Jennifer Ernestine, Renee Ernestine, Roy Junior, Denevr Ernestine, and Jackie Ernestine. She further averred that her grandparents, her father and his first wife, and other relatives are buried on the said property.
5. She stated that the deceased loved her grandchildren, who looked after her throughout her life until her death, while the executrix of the will lived in Germany and would visit the deceased only once a year.
6. She further stated that before the deceased died, she apparently drafted two contradictory wills. The first included all her children, except the respondent and Jane Bowskill, who reside in Germany and South Africa, respectively. The second will is dated 18th March 2009, disinherited her father, Roy Henry Ernestine, and included Marie Russman, Anne Bowskill and other beneficiaries. Both wills were executed by the deceased by thumbprint, although she was a learned person who knew how to read and write, and were made at the height of her fading memory and illness. Hence their conclusion that the will was made through coercion, undue influence and without the deceased's knowledge and/or consent, when the deceased was not in her proper state of mind or was mentally unsound.
7. She averred that there had been conflict between her late father and Marie and Anne, and that their interactions during their intermittent visits to Kenya had been minimal, as they called them names. She further averred that the executrices unduly influenced the deceased on her last day to thumb-print the document, which the deceased had no knowledge of and could not at the time comprehend due to illness.
8. She further averred that Marie Russman, on 1st March 2011, swore a false affidavit in support of the grant stating that there are no other dependants of the deceased. The grant was issued on account of an invalid will, both wanting in form and the capacity of the deceased. Her father objected to the grant on 7th May 2013, but died soon thereafter. Her brother, Roy Jimmy, filed another application thereafter but was unable to prosecute it due to financial difficulties.
9. She urged the court to reinstate the suit, as they wish to ventilate their claim to the estate as legitimate dependants of the deceased and are likely to be rendered homeless by the respondents’ illegal acts.
10. In response, the respondent filed a replying affidavit sworn on 12th March 2024. She denied the applicants' allegations and stated that the applicants have not given sufficient reason for the delay in prosecuting the application dated 26th May 2016 for eight years, as well as the application dated 28th April 2023.
11. She averred that a grant of probate and a written will were issued to her on 5th July 2010 and confirmed on 21st March 2011. That the grant was based on the deceased’s written will of 18th March 2009, which, under clause 8, excluded two of her brothers, namely Guy Robert Stanley, for being cruel and mean to the deceased and causing her misery. He, together with his daughter, attacked the deceased with an axe and a panga, and the same incident was reported to the police. Roy Henry Ernestine threatened to poison the deceased’s water, threw an axe towards her, sold her windmill without consent, and also destroyed her maize mill, all causing the deceased constant fear. The deceased reported all these incidents to the police.
12. She stated that she complied with all legal requirements for the application for a grant, and therefore the allegation that the deceased’s will was invalid is entirely baseless. She further stated that the will was drafted by the firm of Kishore Nanji Advocates in accordance with the deceased’s instructions and attested by two witnesses, Sylvia Warshow and Philomena Bandari. She was informed of the will’s existence by the advocate after the deceased’s death, and the advocate also assisted in filing the necessary application for grant and confirmation of grant.
13. She further stated that the allegation that it was suspicious for her mother to use a thumbprint is baseless, as even in the letters to the police dated 26th August 2008 and 28th August 2008, she used a thumbprint. This shows the deceased preferred signing with a thumbprint.
14. She stated that the allegation that the deceased was not of a state of mind conducive to making a valid will is baseless, as the averment was general and not specific to the date the will was signed. The letter dated 26th March 2015 from Dr Rashid shows that the deceased died on 20th June 2009. She urged that no medical evidence was produced to show that the deceased was adversely affected at the time of signing the will.
15. She averred that after confirmation of the grant, she proceeded to distribute the estate, consisting of the subject parcel of land, which was subdivided into six portions and distributed to the various beneficiaries under the will. She contended that the entire process was conducted openly. The late Roy Henry did not challenge the will during his lifetime, nor did he apply for provision under the will. There are no burial sites in the said parcel of land.
16. The applicant, Alissandra, filed a response to the respondent’s reply affidavit, sworn on 10th March 2024. She challenged the validity of the affidavit on the ground that it was sworn in Mombasa, while the respondent resides in Germany and has never visited Kenya since the deceased died. She reiterated her position, stating that the applicants were not informed prior to the dismissal of the cause; that they are seeking reinstatement to enable them to ventilate their claim; and that they will be rendered destitute and homeless if the matter is not heard and determined on the merits.
17. She stated that the respondent has ignored the will dated 26th May 2008, drafted by the firm of Kishore Nanji Advocates and witnessed by the respondent and her husband. She contended that the respondent coerced the deceased into writing the letter dated 26th August 2008. If there had been any risk of physical harm to the deceased, the police would have arrested the two brothers and arraigned them in court, which did not happen.
18. Alissandra averred that the fact that the deceased had to be assisted to put a thumbprint on the document shows the extent of her infirmity. She contended that the deceased didn’t know what she was signing due to old age, illness and dementia. The respondent did not state when, where, or from whom the firm of Kishore Nanji obtained instructions on the drafting of the will of 18th March 2009.
19. She stated that Roy Henry lacked the financial means to challenge the will, and that his sister's conduct caused him illness and a subsequent heart attack. She further stated that the respondent is not aware of the graves on the suit property because she does not stay on the said property.
20. Due to the nature of the matter, the Summons was canvassed by way of written submissions. I will set out the witnesses' testimonies below.
21. AW1, Alissandra Roy Ernestine, adopted her affidavits, sworn on 9th February, 19th March, and 6th June 2024, together with the documents therein, as her evidence in chief. She reiterated her position, stating that they became aware of this matter when Anne served them with an eviction order in January 2024. She further testified that her father knew about the case but died in 2014.
22. She told the court that the issue is that there are two wills, one dated 26th May 2008 and another dated 18th March 2009. One of the wills included all the deceased’s children, while the other excluded Roy Henry and Guy Robert Stanley. The deceased was 82 years old and unwell, with hypertension, dementia, heart disease and a stroke from 2007 at the time of writing the will. She couldn’t walk, was forgetful and sickly from 2007. In 2008, she was extremely unwell.
23. Her evidence was that her father was on good terms with the deceased and that Tatu was the wife of their uncle. Tatu assisted the deceased, who was unwell. Tatu stayed with the deceased during the day, while the deceased stayed with her at night. Further, it was her evidence that they had never left the subject plot.
24. In cross-examination, she stated that the will of 26th May 20008 was genuine. She also stated that the fight was between Guy, Roy, and Marie Russman, Anne Bowskill, and Marie’s husband, not with the deceased.
25. In re-examination, it was her evidence that Marie was the executrix in respect of the 2 wills. Marie was the one taking care of the deceased and was close to her. The first will has the deceased’s thumbprint.
26. It was her evidence that some of the beneficiaries in the second will have never lived in Kenya, i.e., Christian, who lives in Germany, Anne, who lives in South Africa and Marie, who lives in Germany. She stated that she has never seen police arrest her father regarding the alleged complaint and that the deceased wouldn’t have lived with her father if he were cruel.
27. AW2, Ernestine Roy Jimmy told the court that the deceased was his grandmother and that the late Roy Henry Ernestine was his father. He testified that he lived with the deceased from childhood until he was 20, when he left to live on his own in Mtwapa. He never saw any conflict between the deceased and his father while he was there.
28. During cross-examination, he stated that he did not know the deceased had appointed an administrator.
29. AW3, Simon Mwalufu Mlati, told the court that the deceased had been his neighbour since 1989 and that he had never seen any conflict between the deceased and the late Roy. He further testified that he was the one who removed the windmill because it was old and its parts were falling off. He also stated that Roy sold it on the deceased’s instructions, that Roy was never taken to the police for anything, and that he had never seen Marie and Ann. In the last days, the deceased was unwell and had mood swings.
30. In cross-examination, he told the court that Roy had asked him to remove the windmill.
31. AW4, Dr Rishad, told the court that he prepared the report dated 27th March 2015, produced as exhibit AK4, and that the deceased was admitted in 2009 with a heart attack. She was a known patient with heart illness and epilepsy. She was admitted with severe illness. She was admitted with a comatose stroke. She had had a stroke and cognitive disorders. A parietal stroke is associated with dementia. When one has multiple strokes, cognitive disorders are well documented.
32. In cross-examination, he stated that the deceased's case was not psychiatric. She died after almost six years from multiple organ failure. He saw the patient in June 2009. She would visit the clinic with her carer and was aware of her surroundings. There are effects of previous strokes that are not in the report.
33. RW1, Kishorekumar Devchand Nanji, adopted his affidavit, sworn on 9th July 2024, as evidence in chief. He told the court that the deceased was his client and that he drafted the two wills at her instructions. The instructions were very clear. He received skeleton plans of the plots she intended to give away, and in May 2008 he went to her place and asked whether she understood what she was doing.
34. He testified that on 18th March 2009, he received telephone instructions from the deceased, who also shared a report she had made to the Makupa Police, complaining about her two sons. He followed her instructions and advised her to provide reasons for failing to provide for her two sons. The deceased told him that Guy and his daughter had been cruel to her, while the second son had threatened her, and that she had made a complaint at Mtwapa. It was his evidence that the second will revokes the previous will.
35. When cross-examined, Mr Nanji stated that he did not have the police reports. He testified that he received instructions by telephone to prepare the second will; that he was not present when the executor executed the will; that he handed the will to Sylvia Warshow, who took it to her after he had explained to her how it was to be executed; that he was not aware that the testator was 82 years old, nor that she had had a stroke or been admitted; and that he was not familiar with her handwriting, as the will was thumb-printed, and that he had met her only during the signing of the first will.
36. In re-examination, he stated that the two wills were thumb-printed.
37. RW2, Joseph Leslie Ernestine, adopted the affidavit sworn on 19th December 2024 as his evidence in chief. He stated that he is the deceased's son. The relationship between Roy and the deceased was strained. The deceased complained of maltreatment.
38. In cross-examination, he stated that the deceased made reports with Jane and Marie; that the deceased had subdivided the land before her death; and that Tatu is a relative.
39. He gave evidence that the deceased was ill and taking a lot of medication, and that whenever she was sick, his wife would help her. He also testified that he knew Alissandra and Alice weren’t helping in any way, as the deceased lived about 200 metres away and was not on good terms with them.
40. In re-examination, he stated that the family of Roy didn’t help the deceased, and they also boycotted the funeral. That his mother always used thumbprints when attesting documents.
41. RW3, Florence Kambizi Joshua adopted her affidavit, sworn on 6th May 2024, as evidence in chief. She stated that the deceased was her mother-in-law and that they would visit her as well. The relationship between the deceased, Roy and Guy, wasn’t good, as the deceased complained of maltreatment. The deceased lived alone with a worker named Tatu. She would go with her to the hospital, and the deceased did not have mental health challenges.
42. In cross-examination, she stated that she was a close friend of the deceased, who was about 82/83 years old. The deceased appeared to have had a heart problem and spoke weakly. She couldn’t remember how many times they visited the hospital or how many times she was admitted. She also stated that Tatu, the wife of the deceased’s grandson, used to be paid by Marie.
43. RW4, Sylvia Warshow adopted her affidavit, sworn on 24th April 2024, as evidence-in-chief.
44. During cross-examination, she told the court that she was a family friend of the deceased. She testified that she heard the deceased had a stroke in 2007 and again in 2009. She said she took the will to the deceased; however, she couldn’t remember signing anything. Mr Nanji said there had to be two witnesses. They met Tatu, who welcomed them to the deceased’s house. There, they read the will together, and she helped the deceased thumbprint it. The deceased was mentally okay but slow due to age, as she was 82 years old. She further stated that the deceased was of sound mind until her death, never suffered dementia, and that they used to have tea once or twice a week. She also said she picked up the will on the same day.
45. In re-examination, she stated that the deceased read the will with her, was aware of the contents of the will and that she and Philomena Bandari, the second witness, were present when she thumb-printed it.
46. RW5, Michael Lyon adopted his affidavit, sworn on 24th October 2024, as his evidence in chief.
47. When cross-examined, he told the court that he was married to the granddaughter of the deceased. The deceased had her first stroke in 2004 and had a final stroke when she died. She had a minor stroke in 2009. It was his evidence that she could read up to the time of her death. She couldn’t, however, write as her hand trembled.
48. He stated that Roy was erratic in his relationship with the deceased. In April 2008, he had to involve the police to intervene and/or caution Roy, and a report was also made at Kijipwa. The 2008 report was made by the deceased, who was interviewed at home, and the report was written for her by the attending officer.
49. In re-examination, he stated that the deceased’s 2008 will included everyone, and that in the subsequent will she excluded the two because they had been mean to her. The deceased was physically frail but mentally agile and did not exhibit dementia, as claimed.
50. RW6 Susan Ernestine adopted her affidavit, sworn on 19th April 2024 and 24th October 2025, as evidence in chief.
51. In cross-examination, she told the court that she resides at the subject property; that she took care of the deceased and that Marie paid the doctors' bills; that she saw the deceased being assaulted and that the police visited the home at one time. However, the deceased had never chased away Roy and Guy.
52. It was her evidence that the deceased was well in 2009, as she could remember things and events, although she had a stroke.
53. In re-examination, she told the court that the relationship between Roy, Guy, and the deceased was hostile. They would insult her and threaten her with a panga.
54. RW7, Marie Russman adopted her affidavit, sworn on 12th March 2024, as evidence in chief. She told the court that she visited her mother every 1 or 2 years and stayed with her for 7 to 8 weeks during those visits. The relationship between the deceased and Roy and Guy was hostile. She further stated that the 1st will was witnessed by her and her husband in the presence of Mr Nanji, who asked why they were not in the will. Their response was that they wanted to leave everything to the men. In the second will, she was made a beneficiary. She further stated that she was not present when it was signed. The deceased changed her mind, stating that the two brothers were cruel to her. The deceased was cared for by John Philip and Lesly Ernestine.
55. When cross-examined by counsel for the applicants, Marie stated that the deceased had her first stroke in 2008 and passed away after the last stroke. That after the stroke, the deceased could only dictate her instructions and that she dictated her statement to the police. That the report of 28th August 2008 was typed and brought back for thumb printing.
56. It was her evidence that Mr Nanji was present when the deceased signed the will and that he was aware of the strokes suffered by the deceased.
57. That she wasn’t aware of the contents of the will before she signed, and couldn’t attend the deceased’s burial, as she had undergone a knee replacement surgery. She learned of the contents of the second will after her mother died.
58. In re-examination, she told the court that the title has been registered in the beneficiaries' names. That she has fulfilled her duties to her mother, the deceased herein. That she relied on Mr Nanji, who took care of everything.
59. The objectors, through their advocates, filed written submissions. I will highlight each party's submissions below.
60. The counsel for the applicants identified 6 issues for determination, namely, whether the deceased lacked capacity to make a will; whether the will dated 18th March 2009 is invalid; whether the proceedings to obtain the grant were defective in substance; whether the applicants herein are lawful beneficiaries and dependants of the deceased; whether the applicants are entitled to the reliefs sought in the application dated 9th February 2024; and who should pay costs.
61. On the first issue, counsel submitted that the deceased lacked capacity to make a will because she was gravely ill and had suffered three strokes before the will dated 18th March 2009 was made. Counsel relied on section 5 of the Law of Succession Act and submitted that, due to the deceased’s severe illness and state of mind, she would not have been in a position to execute the will. It was urged that all witnesses gave the same evidence. Further, the medical report of Dr Rishad shows that the deceased was admitted on the 12th January 2009 and died on the 20th June 2009. She was admitted due to the severity of her heart condition. She was a known patient with heart disease and epilepsy. She also suffered post-stroke cognitive disorder, which is associated with dementia.
62. Counsel further submitted that the deceased was too ill to be aware of what she was doing and too frail to defy her daughters’ wishes. Mr Nanji testified that he was not informed of the deceased’s condition, which would have enabled him to advise the respondents properly. Sylvia testified that she was aware that the deceased had suffered strokes in 2007 and 2009, and that it was Mr Nanji who asked her to witness the will. Taken together, these points point to influence and coercion.
63. On the second issue, counsel relied on section 11 of the Act and submitted that Sylvia Warshow was the only one present on the 18th March 2009 who testified that she knew the deceased was ill. Counsel submitted that the evidence produced by the parties does not corroborate their testimonies. Counsel submitted that with the severity of her illness, the thumbprint on the impugned will was forged, forced, and/or coerced. The requirements for a valid will were not met; therefore, the grant issued to the respondent should be revoked.
64. Counsel relied on rule 26(a)and (2) of the Probate and Administration Rules and submitted that it is mandatory for every applicant to give notice to every person entitled in the same degree as or in priority to the applicant. That such a person of equal or lower priority must give consent or renunciation during the filing of the succession cause.
65. On the third issue, counsel relied on section 29 of the Act and submitted that the 10 applicants are grandchildren of the deceased who depended on the deceased having built and resided on the suit property.
66. On the fourth issue, counsel submitted that they have illustrated that the will is not a valid will and that the deceased died intestate, and it is in the discretion of the court to decide on the persons fit to be appointed as the administrators of the deceased’s estate.
67. On who should pay costs, counsel submitted that the court has discretion to order each party to bear their own costs, this being a family matter.
68. In conclusion, counsel urged the court to allow the application as prayed.
69. The respondents, through their advocates Ndegwa Katisya Sitonik & Advocates, filed written submissions dated 24th June 2025. Counsel submitted on four issues namely whether the applicants have proved on the balance of probability that the deceased did not have the capacity to make the will dated 18th March 2009; whether the applicants have proved on a balance of probability that Marie Russman coerced the deceased into the making of the will dated 18th March 2009; whether the applicants have proved on a balance of probability that the will dated 18th March 2009 was not properly executed; and, whether the applicants have proved on a balance of probability that the proceedings to obtain the grant dated 5th July 2010 and confirmed on 21st March 2011 were defective.
70. On the first issue, Counsel submitted that the law presumes every person to be of sound mind unless the contrary is proven. It was urged that Dr Rishad's report has no probative value, as it is not related to 18th March 2009, when the will was made, nor does it address the deceased's mental capacity at that time. There is no evidence that, at the time of making the will, she was ill or that any illness affected her mental capacity.
71. On the second issue, counsel submitted that the parties are bound by their pleadings. No evidence was presented to show that the respondent had any involvement in the making of the will or that she coerced the deceased into making it.
72. On the third issue, counsel relied on Section 11(a) of the Act and submitted that there is no irregularity for the deceased to have imprinted her thumb on the will instead of signing it. There is no dispute that the thumbprint is not that of the deceased, and therefore, the argument that the will is invalid as it was not properly executed must fail.
73. On the fourth issue, counsel submitted that the applicants have not proven on a balance of probability that the grant was obtained fraudulently. That they did not establish the material facts not disclosed. That at the time of obtaining the grant, none of the applicants herein was dependents of the deceased. Counsel relied on Section 29 of the Act and submitted that the applicants had not proved on the balance of probability that they were dependent on the deceased immediately before her death. The applicants have also failed to prove that the proceedings to obtain the grant were defective.
74. I have considered the Summons, the responses thereto, the submissions of the parties, as well as the applicable law. I must now determine whether the grant of probate of the written will of the deceased should be revoked.
75. Section 76 of the Law of Succession Act provides for grounds of revocation as follows;
A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion—
(a) That the proceedings to obtain the grant were defective in substance;
(b) That the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case;
(c) that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently;
(d) That the person to whom the grant was made has failed, after due notice and without reasonable cause either—
(i) To apply for confirmation of the grant within one year from the date thereof, or such longer period as the court order or allow; or
(ii) To proceed diligently with the administration of the estate; or
(iii) To produce to the court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraphs (e) and (g) of section 83 or has produced any such inventory or account which is false in any material particular; or
(e) That the grant has become useless and inoperative through subsequent circumstances.
76. The court’s power to revoke a grant was discussed in the case of Albert Imbuga Kisigwa v Recho Kavai Kisigwa [2016] KEHC 1528 (KLR). The court stated that:
“Power to revoke a grant is a discretionary power that must be exercised judiciously and only on sound grounds. It is not discretion to be exercised whimsically or capriciously. There must be evidence of wrongdoing for the court to invoke section 76 and order to revoke or annul a grant. And when a court is called upon to exercise this discretion, it must take into account the interests of all beneficiaries entitled to the deceased’s estate and ensure that the action taken will be for the interest of justice.”
77. The applicants herein have challenged the validity of the deceased’s will dated 18th March 2009 on the grounds of illness that affected her mind and old age, and also the use of the thumbprint by the deceased. They have
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a) Spent;
b) That the order dismissing this cause on the 28th April 2023, be set aside and the cause herein be reinstated;
c) That the grant of probate issued to Marie Russman on the 5th July 2010, and confirmed on the 21st March 2011, be revoked on the ground that the proceedings to obtain the grant were defective in substance, and the grant was obtained fraudulently by the making of a false statement and the concealment from the court of material information;
d) That the will prepared and thumb –printed by the deceased was fraudulently prepared on the grounds that the deceased was not aware of the contents of the said will, had on the 26th May 2008 prepared a different will, the deceased did not append her signature though she knew how to write, the deceased was mentally unsound and suffering dementia at the time of execution of the will;
e) That consequent to revocation of the grant of probate of the written will issued on the 21st March 2011, this honourable court does appoint Roy Jimmy Ernestine and Alissandra Roy Ernestine as administrators of the estate of Adriana Ernestine (deceased).
f) That this court grants any other order it deems fit in view of the totality of the circumstances herein.
g) The costs of this application
2. The application is based on the grounds stated therein and on the supporting affidavit of Alissandra Roy Ernestine. She stated that she is a grandchild of the deceased and a daughter of Roy Henry Ernestine, the deceased’s son, who died on 29th June 2014. She further stated that the deceased died intestate at Mombasa Hospital after suffering for over 2 years from ischaemic heart disease, hypertension, epilepsy and loss of memory/dementia, and that she and the applicants lived with her and looked after her until the end.
3. She further stated that the deceased was buried on Plot Number 3047 (Original No. 284/167), Section III, Mainland North, and that the executrixes, Marie Russman and Anna Jane Bowskill, did not attend her funeral. That her father, his two wives, and children lived on the said plot prior to the subdivision carried out by her uncle Joseph Leslie, and that he built two houses thereon with the deceased’s permission and consent. That the conflict between her father and the deceased arose when her father decided to marry a second wife. The dispute was subsequently resolved, and all lived harmoniously on the farm, with the father eventually building a second home and marrying a second wife, Sidi Jefwa.
4. She averred that her father had several children, including the 1st to 10th applicants, all of whom reside on the said property with the deceased's consent, including a minor named Jacky Ernestine. She contended that she resides on the said property with her husband and children, namely Tommy Ernestine, Jennifer Ernestine, Renee Ernestine, Roy Junior, Denevr Ernestine, and Jackie Ernestine. She further averred that her grandparents, her father and his first wife, and other relatives are buried on the said property.
5. She stated that the deceased loved her grandchildren, who looked after her throughout her life until her death, while the executrix of the will lived in Germany and would visit the deceased only once a year.
6. She further stated that before the deceased died, she apparently drafted two contradictory wills. The first included all her children, except the respondent and Jane Bowskill, who reside in Germany and South Africa, respectively. The second will is dated 18th March 2009, disinherited her father, Roy Henry Ernestine, and included Marie Russman, Anne Bowskill and other beneficiaries. Both wills were executed by the deceased by thumbprint, although she was a learned person who knew how to read and write, and were made at the height of her fading memory and illness. Hence their conclusion that the will was made through coercion, undue influence and without the deceased's knowledge and/or consent, when the deceased was not in her proper state of mind or was mentally unsound.
7. She averred that there had been conflict between her late father and Marie and Anne, and that their interactions during their intermittent visits to Kenya had been minimal, as they called them names. She further averred that the executrices unduly influenced the deceased on her last day to thumb-print the document, which the deceased had no knowledge of and could not at the time comprehend due to illness.
8. She further averred that Marie Russman, on 1st March 2011, swore a false affidavit in support of the grant stating that there are no other dependants of the deceased. The grant was issued on account of an invalid will, both wanting in form and the capacity of the deceased. Her father objected to the grant on 7th May 2013, but died soon thereafter. Her brother, Roy Jimmy, filed another application thereafter but was unable to prosecute it due to financial difficulties.
9. She urged the court to reinstate the suit, as they wish to ventilate their claim to the estate as legitimate dependants of the deceased and are likely to be rendered homeless by the respondents’ illegal acts.
10. In response, the respondent filed a replying affidavit sworn on 12th March 2024. She denied the applicants' allegations and stated that the applicants have not given sufficient reason for the delay in prosecuting the application dated 26th May 2016 for eight years, as well as the application dated 28th April 2023.
11. She averred that a grant of probate and a written will were issued to her on 5th July 2010 and confirmed on 21st March 2011. That the grant was based on the deceased’s written will of 18th March 2009, which, under clause 8, excluded two of her brothers, namely Guy Robert Stanley, for being cruel and mean to the deceased and causing her misery. He, together with his daughter, attacked the deceased with an axe and a panga, and the same incident was reported to the police. Roy Henry Ernestine threatened to poison the deceased’s water, threw an axe towards her, sold her windmill without consent, and also destroyed her maize mill, all causing the deceased constant fear. The deceased reported all these incidents to the police.
12. She stated that she complied with all legal requirements for the application for a grant, and therefore the allegation that the deceased’s will was invalid is entirely baseless. She further stated that the will was drafted by the firm of Kishore Nanji Advocates in accordance with the deceased’s instructions and attested by two witnesses, Sylvia Warshow and Philomena Bandari. She was informed of the will’s existence by the advocate after the deceased’s death, and the advocate also assisted in filing the necessary application for grant and confirmation of grant.
13. She further stated that the allegation that it was suspicious for her mother to use a thumbprint is baseless, as even in the letters to the police dated 26th August 2008 and 28th August 2008, she used a thumbprint. This shows the deceased preferred signing with a thumbprint.
14. She stated that the allegation that the deceased was not of a state of mind conducive to making a valid will is baseless, as the averment was general and not specific to the date the will was signed. The letter dated 26th March 2015 from Dr Rashid shows that the deceased died on 20th June 2009. She urged that no medical evidence was produced to show that the deceased was adversely affected at the time of signing the will.
15. She averred that after confirmation of the grant, she proceeded to distribute the estate, consisting of the subject parcel of land, which was subdivided into six portions and distributed to the various beneficiaries under the will. She contended that the entire process was conducted openly. The late Roy Henry did not challenge the will during his lifetime, nor did he apply for provision under the will. There are no burial sites in the said parcel of land.
16. The applicant, Alissandra, filed a response to the respondent’s reply affidavit, sworn on 10th March 2024. She challenged the validity of the affidavit on the ground that it was sworn in Mombasa, while the respondent resides in Germany and has never visited Kenya since the deceased died. She reiterated her position, stating that the applicants were not informed prior to the dismissal of the cause; that they are seeking reinstatement to enable them to ventilate their claim; and that they will be rendered destitute and homeless if the matter is not heard and determined on the merits.
17. She stated that the respondent has ignored the will dated 26th May 2008, drafted by the firm of Kishore Nanji Advocates and witnessed by the respondent and her husband. She contended that the respondent coerced the deceased into writing the letter dated 26th August 2008. If there had been any risk of physical harm to the deceased, the police would have arrested the two brothers and arraigned them in court, which did not happen.
18. Alissandra averred that the fact that the deceased had to be assisted to put a thumbprint on the document shows the extent of her infirmity. She contended that the deceased didn’t know what she was signing due to old age, illness and dementia. The respondent did not state when, where, or from whom the firm of Kishore Nanji obtained instructions on the drafting of the will of 18th March 2009.
19. She stated that Roy Henry lacked the financial means to challenge the will, and that his sister's conduct caused him illness and a subsequent heart attack. She further stated that the respondent is not aware of the graves on the suit property because she does not stay on the said property.
20. Due to the nature of the matter, the Summons was canvassed by way of written submissions. I will set out the witnesses' testimonies below.
21. AW1, Alissandra Roy Ernestine, adopted her affidavits, sworn on 9th February, 19th March, and 6th June 2024, together with the documents therein, as her evidence in chief. She reiterated her position, stating that they became aware of this matter when Anne served them with an eviction order in January 2024. She further testified that her father knew about the case but died in 2014.
22. She told the court that the issue is that there are two wills, one dated 26th May 2008 and another dated 18th March 2009. One of the wills included all the deceased’s children, while the other excluded Roy Henry and Guy Robert Stanley. The deceased was 82 years old and unwell, with hypertension, dementia, heart disease and a stroke from 2007 at the time of writing the will. She couldn’t walk, was forgetful and sickly from 2007. In 2008, she was extremely unwell.
23. Her evidence was that her father was on good terms with the deceased and that Tatu was the wife of their uncle. Tatu assisted the deceased, who was unwell. Tatu stayed with the deceased during the day, while the deceased stayed with her at night. Further, it was her evidence that they had never left the subject plot.
24. In cross-examination, she stated that the will of 26th May 20008 was genuine. She also stated that the fight was between Guy, Roy, and Marie Russman, Anne Bowskill, and Marie’s husband, not with the deceased.
25. In re-examination, it was her evidence that Marie was the executrix in respect of the 2 wills. Marie was the one taking care of the deceased and was close to her. The first will has the deceased’s thumbprint.
26. It was her evidence that some of the beneficiaries in the second will have never lived in Kenya, i.e., Christian, who lives in Germany, Anne, who lives in South Africa and Marie, who lives in Germany. She stated that she has never seen police arrest her father regarding the alleged complaint and that the deceased wouldn’t have lived with her father if he were cruel.
27. AW2, Ernestine Roy Jimmy told the court that the deceased was his grandmother and that the late Roy Henry Ernestine was his father. He testified that he lived with the deceased from childhood until he was 20, when he left to live on his own in Mtwapa. He never saw any conflict between the deceased and his father while he was there.
28. During cross-examination, he stated that he did not know the deceased had appointed an administrator.
29. AW3, Simon Mwalufu Mlati, told the court that the deceased had been his neighbour since 1989 and that he had never seen any conflict between the deceased and the late Roy. He further testified that he was the one who removed the windmill because it was old and its parts were falling off. He also stated that Roy sold it on the deceased’s instructions, that Roy was never taken to the police for anything, and that he had never seen Marie and Ann. In the last days, the deceased was unwell and had mood swings.
30. In cross-examination, he told the court that Roy had asked him to remove the windmill.
31. AW4, Dr Rishad, told the court that he prepared the report dated 27th March 2015, produced as exhibit AK4, and that the deceased was admitted in 2009 with a heart attack. She was a known patient with heart illness and epilepsy. She was admitted with severe illness. She was admitted with a comatose stroke. She had had a stroke and cognitive disorders. A parietal stroke is associated with dementia. When one has multiple strokes, cognitive disorders are well documented.
32. In cross-examination, he stated that the deceased's case was not psychiatric. She died after almost six years from multiple organ failure. He saw the patient in June 2009. She would visit the clinic with her carer and was aware of her surroundings. There are effects of previous strokes that are not in the report.
33. RW1, Kishorekumar Devchand Nanji, adopted his affidavit, sworn on 9th July 2024, as evidence in chief. He told the court that the deceased was his client and that he drafted the two wills at her instructions. The instructions were very clear. He received skeleton plans of the plots she intended to give away, and in May 2008 he went to her place and asked whether she understood what she was doing.
34. He testified that on 18th March 2009, he received telephone instructions from the deceased, who also shared a report she had made to the Makupa Police, complaining about her two sons. He followed her instructions and advised her to provide reasons for failing to provide for her two sons. The deceased told him that Guy and his daughter had been cruel to her, while the second son had threatened her, and that she had made a complaint at Mtwapa. It was his evidence that the second will revokes the previous will.
35. When cross-examined, Mr Nanji stated that he did not have the police reports. He testified that he received instructions by telephone to prepare the second will; that he was not present when the executor executed the will; that he handed the will to Sylvia Warshow, who took it to her after he had explained to her how it was to be executed; that he was not aware that the testator was 82 years old, nor that she had had a stroke or been admitted; and that he was not familiar with her handwriting, as the will was thumb-printed, and that he had met her only during the signing of the first will.
36. In re-examination, he stated that the two wills were thumb-printed.
37. RW2, Joseph Leslie Ernestine, adopted the affidavit sworn on 19th December 2024 as his evidence in chief. He stated that he is the deceased's son. The relationship between Roy and the deceased was strained. The deceased complained of maltreatment.
38. In cross-examination, he stated that the deceased made reports with Jane and Marie; that the deceased had subdivided the land before her death; and that Tatu is a relative.
39. He gave evidence that the deceased was ill and taking a lot of medication, and that whenever she was sick, his wife would help her. He also testified that he knew Alissandra and Alice weren’t helping in any way, as the deceased lived about 200 metres away and was not on good terms with them.
40. In re-examination, he stated that the family of Roy didn’t help the deceased, and they also boycotted the funeral. That his mother always used thumbprints when attesting documents.
41. RW3, Florence Kambizi Joshua adopted her affidavit, sworn on 6th May 2024, as evidence in chief. She stated that the deceased was her mother-in-law and that they would visit her as well. The relationship between the deceased, Roy and Guy, wasn’t good, as the deceased complained of maltreatment. The deceased lived alone with a worker named Tatu. She would go with her to the hospital, and the deceased did not have mental health challenges.
42. In cross-examination, she stated that she was a close friend of the deceased, who was about 82/83 years old. The deceased appeared to have had a heart problem and spoke weakly. She couldn’t remember how many times they visited the hospital or how many times she was admitted. She also stated that Tatu, the wife of the deceased’s grandson, used to be paid by Marie.
43. RW4, Sylvia Warshow adopted her affidavit, sworn on 24th April 2024, as evidence-in-chief.
44. During cross-examination, she told the court that she was a family friend of the deceased. She testified that she heard the deceased had a stroke in 2007 and again in 2009. She said she took the will to the deceased; however, she couldn’t remember signing anything. Mr Nanji said there had to be two witnesses. They met Tatu, who welcomed them to the deceased’s house. There, they read the will together, and she helped the deceased thumbprint it. The deceased was mentally okay but slow due to age, as she was 82 years old. She further stated that the deceased was of sound mind until her death, never suffered dementia, and that they used to have tea once or twice a week. She also said she picked up the will on the same day.
45. In re-examination, she stated that the deceased read the will with her, was aware of the contents of the will and that she and Philomena Bandari, the second witness, were present when she thumb-printed it.
46. RW5, Michael Lyon adopted his affidavit, sworn on 24th October 2024, as his evidence in chief.
47. When cross-examined, he told the court that he was married to the granddaughter of the deceased. The deceased had her first stroke in 2004 and had a final stroke when she died. She had a minor stroke in 2009. It was his evidence that she could read up to the time of her death. She couldn’t, however, write as her hand trembled.
48. He stated that Roy was erratic in his relationship with the deceased. In April 2008, he had to involve the police to intervene and/or caution Roy, and a report was also made at Kijipwa. The 2008 report was made by the deceased, who was interviewed at home, and the report was written for her by the attending officer.
49. In re-examination, he stated that the deceased’s 2008 will included everyone, and that in the subsequent will she excluded the two because they had been mean to her. The deceased was physically frail but mentally agile and did not exhibit dementia, as claimed.
50. RW6 Susan Ernestine adopted her affidavit, sworn on 19th April 2024 and 24th October 2025, as evidence in chief.
51. In cross-examination, she told the court that she resides at the subject property; that she took care of the deceased and that Marie paid the doctors' bills; that she saw the deceased being assaulted and that the police visited the home at one time. However, the deceased had never chased away Roy and Guy.
52. It was her evidence that the deceased was well in 2009, as she could remember things and events, although she had a stroke.
53. In re-examination, she told the court that the relationship between Roy, Guy, and the deceased was hostile. They would insult her and threaten her with a panga.
54. RW7, Marie Russman adopted her affidavit, sworn on 12th March 2024, as evidence in chief. She told the court that she visited her mother every 1 or 2 years and stayed with her for 7 to 8 weeks during those visits. The relationship between the deceased and Roy and Guy was hostile. She further stated that the 1st will was witnessed by her and her husband in the presence of Mr Nanji, who asked why they were not in the will. Their response was that they wanted to leave everything to the men. In the second will, she was made a beneficiary. She further stated that she was not present when it was signed. The deceased changed her mind, stating that the two brothers were cruel to her. The deceased was cared for by John Philip and Lesly Ernestine.
55. When cross-examined by counsel for the applicants, Marie stated that the deceased had her first stroke in 2008 and passed away after the last stroke. That after the stroke, the deceased could only dictate her instructions and that she dictated her statement to the police. That the report of 28th August 2008 was typed and brought back for thumb printing.
56. It was her evidence that Mr Nanji was present when the deceased signed the will and that he was aware of the strokes suffered by the deceased.
57. That she wasn’t aware of the contents of the will before she signed, and couldn’t attend the deceased’s burial, as she had undergone a knee replacement surgery. She learned of the contents of the second will after her mother died.
58. In re-examination, she told the court that the title has been registered in the beneficiaries' names. That she has fulfilled her duties to her mother, the deceased herein. That she relied on Mr Nanji, who took care of everything.
59. The objectors, through their advocates, filed written submissions. I will highlight each party's submissions below.
60. The counsel for the applicants identified 6 issues for determination, namely, whether the deceased lacked capacity to make a will; whether the will dated 18th March 2009 is invalid; whether the proceedings to obtain the grant were defective in substance; whether the applicants herein are lawful beneficiaries and dependants of the deceased; whether the applicants are entitled to the reliefs sought in the application dated 9th February 2024; and who should pay costs.
61. On the first issue, counsel submitted that the deceased lacked capacity to make a will because she was gravely ill and had suffered three strokes before the will dated 18th March 2009 was made. Counsel relied on section 5 of the Law of Succession Act and submitted that, due to the deceased’s severe illness and state of mind, she would not have been in a position to execute the will. It was urged that all witnesses gave the same evidence. Further, the medical report of Dr Rishad shows that the deceased was admitted on the 12th January 2009 and died on the 20th June 2009. She was admitted due to the severity of her heart condition. She was a known patient with heart disease and epilepsy. She also suffered post-stroke cognitive disorder, which is associated with dementia.
62. Counsel further submitted that the deceased was too ill to be aware of what she was doing and too frail to defy her daughters’ wishes. Mr Nanji testified that he was not informed of the deceased’s condition, which would have enabled him to advise the respondents properly. Sylvia testified that she was aware that the deceased had suffered strokes in 2007 and 2009, and that it was Mr Nanji who asked her to witness the will. Taken together, these points point to influence and coercion.
63. On the second issue, counsel relied on section 11 of the Act and submitted that Sylvia Warshow was the only one present on the 18th March 2009 who testified that she knew the deceased was ill. Counsel submitted that the evidence produced by the parties does not corroborate their testimonies. Counsel submitted that with the severity of her illness, the thumbprint on the impugned will was forged, forced, and/or coerced. The requirements for a valid will were not met; therefore, the grant issued to the respondent should be revoked.
64. Counsel relied on rule 26(a)and (2) of the Probate and Administration Rules and submitted that it is mandatory for every applicant to give notice to every person entitled in the same degree as or in priority to the applicant. That such a person of equal or lower priority must give consent or renunciation during the filing of the succession cause.
65. On the third issue, counsel relied on section 29 of the Act and submitted that the 10 applicants are grandchildren of the deceased who depended on the deceased having built and resided on the suit property.
66. On the fourth issue, counsel submitted that they have illustrated that the will is not a valid will and that the deceased died intestate, and it is in the discretion of the court to decide on the persons fit to be appointed as the administrators of the deceased’s estate.
67. On who should pay costs, counsel submitted that the court has discretion to order each party to bear their own costs, this being a family matter.
68. In conclusion, counsel urged the court to allow the application as prayed.
69. The respondents, through their advocates Ndegwa Katisya Sitonik & Advocates, filed written submissions dated 24th June 2025. Counsel submitted on four issues namely whether the applicants have proved on the balance of probability that the deceased did not have the capacity to make the will dated 18th March 2009; whether the applicants have proved on a balance of probability that Marie Russman coerced the deceased into the making of the will dated 18th March 2009; whether the applicants have proved on a balance of probability that the will dated 18th March 2009 was not properly executed; and, whether the applicants have proved on a balance of probability that the proceedings to obtain the grant dated 5th July 2010 and confirmed on 21st March 2011 were defective.
70. On the first issue, Counsel submitted that the law presumes every person to be of sound mind unless the contrary is proven. It was urged that Dr Rishad's report has no probative value, as it is not related to 18th March 2009, when the will was made, nor does it address the deceased's mental capacity at that time. There is no evidence that, at the time of making the will, she was ill or that any illness affected her mental capacity.
71. On the second issue, counsel submitted that the parties are bound by their pleadings. No evidence was presented to show that the respondent had any involvement in the making of the will or that she coerced the deceased into making it.
72. On the third issue, counsel relied on Section 11(a) of the Act and submitted that there is no irregularity for the deceased to have imprinted her thumb on the will instead of signing it. There is no dispute that the thumbprint is not that of the deceased, and therefore, the argument that the will is invalid as it was not properly executed must fail.
73. On the fourth issue, counsel submitted that the applicants have not proven on a balance of probability that the grant was obtained fraudulently. That they did not establish the material facts not disclosed. That at the time of obtaining the grant, none of the applicants herein was dependents of the deceased. Counsel relied on Section 29 of the Act and submitted that the applicants had not proved on the balance of probability that they were dependent on the deceased immediately before her death. The applicants have also failed to prove that the proceedings to obtain the grant were defective.
74. I have considered the Summons, the responses thereto, the submissions of the parties, as well as the applicable law. I must now determine whether the grant of probate of the written will of the deceased should be revoked.
75. Section 76 of the Law of Succession Act provides for grounds of revocation as follows;
A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion—
(a) That the proceedings to obtain the grant were defective in substance;
(b) That the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case;
(c) that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently;
(d) That the person to whom the grant was made has failed, after due notice and without reasonable cause either—
(i) To apply for confirmation of the grant within one year from the date thereof, or such longer period as the court order or allow; or
(ii) To proceed diligently with the administration of the estate; or
(iii) To produce to the court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraphs (e) and (g) of section 83 or has produced any such inventory or account which is false in any material particular; or
(e) That the grant has become useless and inoperative through subsequent circumstances.
76. The court’s power to revoke a grant was discussed in the case of Albert Imbuga Kisigwa v Recho Kavai Kisigwa [2016] KEHC 1528 (KLR). The court stated that:
“Power to revoke a grant is a discretionary power that must be exercised judiciously and only on sound grounds. It is not discretion to be exercised whimsically or capriciously. There must be evidence of wrongdoing for the court to invoke section 76 and order to revoke or annul a grant. And when a court is called upon to exercise this discretion, it must take into account the interests of all beneficiaries entitled to the deceased’s estate and ensure that the action taken will be for the interest of justice.”
77. The applicants herein have challenged the validity of the deceased’s will dated 18th March 2009 on the grounds of illness that affected her mind and old age, and also the use of the thumbprint by the deceased. They have
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