1. I had summarized the background of this matter in my Ruling delivered herein on 4/04/2025, which background I reproduce as follows:
“2. The background of the matter is that the deceased herein, Simion Kipkilel Arap Kirui, died on 17/10/1999 aged 88 years. From what I can decipher, upon his death, a Petition for Probate of a Will was filed in this Cause on 27/02/2006 by the Petitioner, Philip Chepkwony, as the executor of the Will. It does not appear that any Grant has been issued to date as I have not come across any in the Court file.
3. On 19/10/2007, the 2 Objectors, as sons of the deceased, filed a challenge against the Petition and subsequently, also filed a Cross-Petition for the Grant, as well as an Answer to the Petition. I also note that the main challenge raised in the Objection was on the authenticity of the Will alleged by the Petitioner and also on the Will’s clarity. It is also apparent that the main dispute in this Cause is the inheritance and/or distribution of the parcel of land known as Nandi/Kaboi/977 amongst the survivors of the deceased, and which property was owned by the deceased. All the 5 Applicants and the 2 Objectors are children of the deceased and thus siblings.
4. There is indication that another Succession Cause for the estate of the same deceased was subsequently filed, namely Eldoret High Court P&A No. 261 of 2010, and which appears to have been consolidated with this instant Cause.
5. Be that as it may, by the orders made on 16/07/2018 by Sewe J, it was directed that the Objection be heard by way of a viva voce trial. The trial then commenced on 25/03/2019 when the 1 st Objector testified. However, upon the parties’ agreement, further hearing was deferred and the matter referred to Court annexed Mediation which however was not successful. The parties therefore returned to Court and the trial resumed on 9/10/2019 when the 2 nd Objector and his 2 sisters testified as PW1, PW2 and PW3, respectively, and the Objectors’ case closed. Upon the transfer of Sewe J from this station, the matter was taken over by Ogola J who on 25/04/2022 heard the testimony of the Applicant’s 1 st witness who testified as DW1. He is the 3 rd beneficiary named above, Cornelius Kipngeno Kilel. Again, upon the transfer of Ogola J, I took over the case and the Applicants’ 2 nd witness, Advocate Jones Nyachiro, who was said to have been one of the 2 Advocates who witnessed the Will, began giving his evidence-in-chief testimony as DW2.”
2. I may make the clarification that the Petition herein by the said executor, Philip Chepkwony , was filed through Messrs Kalya & Co. Advocates , while the second Cause with which it was consolidated, namely, Eldoret High Court Succession Cause No. 261 of 2010 , was filed in person subsequently, by 3 sons of the deceased, namely, the 2 nd beneficiary ( Andrew Kipsang Kilel ), the 3 rd beneficiary ( Cornelius Kipngeno Kilel ), and Joseph Kilel . I also note that unlike this instant Cause, which was based on a written Will, and in which no Grant of Probate appears to have been issued to date, a Grant of Letters of Administration Intestate had been issued to the 3 said brothers on 22/06/2011 as joint Administrators before the two matters were consolidated. On its part, the Objection was filed through Messrs Nyairo & Co. Advocates .
3. It may also be necessary to mention that the Objection, in challenging the Will, apart from citing lack of clarity in the Will, also doubted its authenticity and authenticity, and also contended that insofar as same prohibits sub-division of land, it is against justice and impedes the administration of the estate. The Objection also contended that the Will purports to distribute the parcel of land described as Nandi/Kaboi/977 , which parcel of land does not belong to the deceased, and that the Will is also ambiguous as to how income from land is to be distributed, and the implementation thereof. The Objectors then stated that the original Will is required for purposes of making a Grant of Probate, unless its absence is sufficiently explained, which has not been done in this case. It was also claimed that the Petitioner did not seek the consent of the beneficiaries before filing the Petition. The Objectors, in the end, therefore prayed that the Will be ignored and the estate be thus distributed among all the beneficiaries under the rules of intestate distribution.
4. I may also mention that after the Objection was filed, the executor of the alleged Will, Philip Chepkwony applied to be discharged from the Cause, which Application was allowed on 7/05/2011. Upon withdrawal of the executor therefore, only the Petitioners in Eldoret High Court P&A No. 261 of 2010 , now renamed as the 2 nd beneficiary ( Andrew Kipsang Kilel ), the 3 rd beneficiary ( Cornelius Kipngeno Kilel ), and Joseph Kilel , remained as Petitioners. Their legal representation was then taken over by Messrs Martim & Co. Advocates .
5. Back to the viva voce trial, in the course of the testimony of Mr. Jones Nyachiro ( DW2 ), in which he stated that the Will on record bore an error in the misdescription of a parcel of land, an alleged version with corrections made thereon by the deceased, and sought to be relied upon by the beneficiaries could not be traced, and that what was on record was a photocopy. Ms. Odwa , Counsel for the Objectors, having objected to production of the photocopy, Mr. Nyachiro (DW2) was stood down to enable Counsel for the beneficiaries, Mr. Martim , file a formal Application seeking leave to produce the photocopy as secondary evidence.
6. The said Application was eventually filed and canvassed but which I dismissed by way of the said Ruling dated 4/04/2025 having found, inter alia , that no sufficient explanation had been offered for the whereabouts of the original Will, and also that the Application had been filed after an unexplained inordinate delay, and long outside the 14 days given for filing it. Mr. Nyachiro then returned and concluded his evidence.
7. At the trial, in total, the Objector called 4 witnesses while the beneficiaries called 2. I will now, in summary, recite the witnesses’ testimonies.
Objectors’ Witnesses’ Testimonies
8. PW1 was the 1 st Objector, Peter Cheruiyot Kilel . Led by Ms. Odwa , he reiterated that the deceased was his father, who left behind 12 children and a widow, Veronica Kirui , who also died subsequently in the April 2000. He produced a copy of the certificate of death and testified further that the deceased left behind the parcel of land known as Nandi/Kaboi/977 , measuring 64 acres. He also stated that the deceased left a Will which however, he ( PW1 ) only learnt of after this Cause was filed. He testified further that he filed the Objection because the Will did not concern the family parcel of land Nandi/Kaboi/977 , but was in respect to the separate parcel of land known as Nandi/Kaboi/477 , which is registered in the name of one Kili arap Mugun , and not the deceased. He produced copies of the respective Search Reports and prayed that the Will be disregarded as it has no connection to the family parcel of land, Nandi/Kaboi/977 . He prayed further that the Petition be dismissed as the executor did not have a right to petition on behalf of the estate, and that the estate should be distributed to all the beneficiaries equally. Under cross-examination by Mr. Martim , he stated that he has been living on the parcel of land Nandi/Kaboi/977 since 1999, which, he stated, has a tea plantation of 15 acres, and he agreed that he has been earning income from the tea plantation. He agreed that he had not produced any accounts to show how much he has been earning from the tea crop, and insisted that he had been living on the parcel of land even before the deceased died. He confirmed knowing the said Philip Chepkwony , as a neighbour and confirmed that he ( Philip Chepkwony ) is the person named in the Will as executor. He also confirmed that in the Will, all beneficiaries are indicated to have been bequeathed 9 acres each, except for one Peter Cheruiyot , who is indicated to have been bequeathed 6 acres. He also contended that the 2 nd Objector, Paul Kiprono Kilel , has his own parcel of land not owned by the deceased. In re-examination, he stated that he has been occupying 10 acres of the parcel of land with his children, which 10 acres the deceased had allocated to him.
9. PW2 was the 2 nd Objector, Paul Kiprono Kilel . He adopted his Affidavit sworn on 23/10/2007, and he, too, contended that the parcel of land Nandi/Kaboi/477 is not part of the estate of the deceased as it belongs to a different person, namely, one Kilel arap Mugun as indicated in the Search Report. He, too, insisted that the correct parcel of land forming the estate of the deceased is Nandi/Kaboi/977 . He agreed that in the Will, he ( DW2 ) is indicated to have been bequeathed the separate parcel of land known as Nandi/Kamobo/480 but claimed that such parcel of land was personally purchased by him in the year 1976, and he has a title document for the same, a copy whereof he produced, together with copies of the Search Report and the Application thereto. He, too, stated that the deceased left behind 12 children but protested that the Will only provides for 7 as it left out the daughters, who also deserve to receive a share of the estate. He also pointed out that the Will is dated 7/11/1997 by which date he had already obtained his title document for the said Nandi/Kamobo/480 , and was residing there. In cross-examination, he stated that he purchased the said Nandi/Kamobo/480 from one Reuben Kibii Kosgei , and denied that the purchase price was contributed to by his brothers. He also stated that he has never seen the original version of the Will. He also agreed that his sisters have never complained about being left out of the Will, and also agreed that for 10 years, the 1 st Objector ( Peter Cheruiyot Kilel ), the 2 nd beneficiary ( Andrew Kipsang Kilel ), and the 3 rd beneficiary ( Cornelius Kipngeno Kilel ) are the people who have been receiving the proceeds of the tea crop from Nandi/Kaboi/977 as its caretakers. He denied knowledge of any company known as Sikifwa , allegedly incorporated by the family to look after the farm. He thus denied knowledge of any Will made by the deceased (his father) but agreed that the deceased was of sound mind at the time of his death.
10. PW3 was Magdalena Chemutai Kirui , who also testified that she is a daughter of the deceased. She, too confirmed that they are 12 siblings but that the Will only provides for 7 of them. She pointed that she is among those omitted and prayed that she should also be given a share of the estate, just like all her other siblings, whether male and female. In cross-examination, she agreed that she is married but protested that his brothers never involved the sisters in the discussions on distribution of the estate, and completely ignored them. She protested that the brothers should have given them at least 1 acre each or its equivalent in cash. Regarding the separate parcel of land Nandi/Kamobo/480 owned by the 2 nd Objector, she insisted that the 2 nd Objector purchased it on his own from his own money, and she thus denied that the deceased (her father) or any of her brothers contributed to the purchase thereof.
11. PW4 was Martina Chepkemoi Kirui . She, too, testified that the deceased was his father, and that they are 12 children, namely, 8 brothers and 3 sisters from one mother. She, too, pointed out that the alleged Will relied on by the Petitioners only contains the names of 7 siblings, and that she is among those omitted. She insisted that she, too, is entitled to a share of the estate which should be shared equally among all the siblings, including the daughters. In re-examination, she, too, denied any knowledge of his brothers having formed a family welfare group to run the farm. She also denied receiving any financial assistance from her brothers in educating her children but confirmed that she has been receiving a share of the tea bonus. She stated further that all siblings have been receiving an annual payment of Kshs 2,000/- since their father’s death. She then stated that she would be contented with 2 acres of land or its equivalent in cash.
Petitioners’ Witnesses’ Testimony
12. DW1 was the Cornelius Kipngeno Kilel , the 3 rd Beneficiary. Led by Mr. Martim , he adopted his Affidavit sworn on 25/09/2019 filed in this Cause as his evidence-in-chief. He refuted the Objection filed herein, and testified that the 1 st Objector ( Peter Cheruiyot Kilel ) resided on 3 acres of the parcel of land known as Nandi/Kaboi/977 which, according to him, is the parcel of land referred to in the Will. He also pointed out that the 1 st Objector agreed to, and did withdraw his Objection after family meetings. He then stated that the 2 nd Objector ( Paul Kiprono Kilel ), after disagreements between his (2 nd Objector’s) wife and another brother, procured a separate parcel of land measuring 2 acres but subsequently, their father, reasoning that the piece of land was too small, asked the 2 nd Objector to procure a bigger plot, upon which the Objector obtained a 10 acres parcel of land but since the 2 nd Objector did not have the money, he requested their father to purchase the land for him. According to him, upon their father’s request, their other brother, the 2 nd beneficiary ( Andrew Kipsang Kilel ), contributed the sum of Kshs 4,000/- but as the purchase price was Kshs 9,000/-, their father contributed the balance of Kshs 5,000/-, and that the parcel of land was then registered in the name of the 2 nd Objector. Under cross-examination by Ms. Odwa , he insisted that his father’s Will should be honoured, although he conceded that it has no provision for the daughters, and refers to the parcel of land described as Nandi/Kaboi/477 which does not belong to the deceased (his father), and not Nandi/Kaboi/977 which is the parcel of land owned by the deceased. He also conceded that as Petitioners, he and the other beneficiaries did not disclose in the Petition that they filed herein that there were other survivors other than those they named. According to him, the Will did not provide for his sisters because they were married.
13. DW2 was the Advocate Jones Nyachiro . He stated that he has been in legal practice for 27 years, and that on 7/11/1997 when he was still in the employment by Messrs Kalya & Co. Advocates , he, in the course of his duties, prepared the Will for the deceased, in which the deceased appointed the said Philip Chepkwony as Trustee. He also testified that the Will referred to the parcel of land known as Nandi/Kaboi/977 and also Nandi/Kamobo/480 and the manner in which they were to be distributed. He testified further that he witnessed the Will together with his then colleague Advocate, Mr. Simon Lilan , after the deceased signed it, and that the original of the Will was filed in Court. He stated that he left the law firm of Kalya & Co . in 2002, and that sometime in 2006, Kalya & Co . contacted him and informed that they were unable to trace the original of the Will but showed him a photocopy bearing his signature. He testified further that upon perusing the photocopy, he noticed that the intended parcel of land Nandi/Kaboi/977 had been erroneously indicated therein as Nandi/Kaboi/477 . He thus insisted that the correct parcel of land which the deceased intended to bequeath under the Will was Nandi/Kaboi/977 measuring 25.49 Hectares, which the Will correctly the equivalent thereof as 63 acres. He then sought to produce the said photocopy version of the Will as an exhibit, in which version he claimed the deceased had corrected the misdescription.
14. It is at this point that Ms. Odwa objected to reference to the original alleged “corrected” Will by the witness, which original, as aforesaid, she stated that she had never seen, and which Objection eventually led to the beneficiaries filing the Application for leave to produce a photocopy thereof. As already stated, I dismissed that Application by way of my said Ruling rendered on 4/04/2025, after which the witness returned and concluded his evidence after being cross-examined and re-examined. He however basically simply reiterated the matters he had already stated and the beneficiaries’ case was then closed.
15. I may also state that it is during the above intervening period, before DW3 was cross-examined, that the 1 st Objector, Peter Cheruiyot Kilel , appeared in Court in person and confirmed withdrawing his Objection. Under these circumstances, only the 2 nd Objector now therefore remains as an Objector.
Written Submissions
16. Upon close of the trial, the parties filed Written Submissions. The 2 nd Objector filed the Submissions dated 29/10/2025, while the beneficiaries’ is dated 28/11/2025.
2 nd Objector’s Submissions
17. Ms. Odwa , the 2 nd Objector’s Counsel, in challenging the alleged Will dated 17/11/1997, submitted that the deceased, at the time that he is alleged to have executed the Will, was 88 years old, senile, and did not have the mental capacity to execute a Will. She also reiterated that the Will is invalid insofar as the parcels of land purportedly bequeathed therein do not belong to the deceased, and also that the Will did not provide for all the beneficiaries. She asserted that, contrary to the requirements of Rule 54(3) of the Probate & Administration Rules , no Affidavit was sworn by the representatives of Messrs Kalya & Co. Advocates , or any evidence tendered by that law firm confirming that the Will was read over to the deceased and the contents of each clause explained to him, and that he confirmed that he understood the same. She also contended that there is lack of uniformity in the signature of the deceased in the entire Will, that there is discrepancy in the numbering of the pages in the Will as page 3 and 4 both mention pages 3,4,5 and 6. Counsel also reiterated the inclusion of the parcel of land Nandi/Kaboi/977 yet the property did not belong to the deceased, which error, although the Petitioners downplayed as a mere typographical error, it cannot be so considering that the alleged error consistently appears in two different pages of the Will. She also pointed out that DW2 , Jones Nyachiro Advocate , who alleged to have witnessed the Will, confirmed that the only version he witnessed was the one with the alleged error, hence shooting down any claim that there could have been a second version signed later by the deceased. Counsel contended that the alleged second version appears to have been “manufactured” upon realization that the original was erroneous, reason why, according to her, Messrs Kalya & Co . declined to come to Court to testify on its validity. She reiterated further the inclusion of the parcel of land Nandi/Kamobo/480 and its bequest to the 2 nd Objector yet the property did not belong to the deceased but to the 2 nd Objector who had already been registered as owner way back in the year 1976.
18. Counsel also reiterated that the Will had omitted the 2 nd Objector and all daughters of the deceased from benefiting from income from the sale of tea, and directed that the 1 st Objector do continue residing in an undisclosed parcel of land. He cited the case of Julius Kinyua Chabari & Another v Mary Mukwamugo Njagi & 4 Others [2016] KEHC 4470 (KLR) . She then submitted that the Grant issued to the 1 st , 2 nd and 3 rd beneficiaries as Petitioners in Eldoret High Court Succession Cause No. 261 of 2010 before these two Causes were consolidated, is for revocation given that they fraudulently obtained the same by deliberately failing to disclose to the Court, all beneficiaries and assets of the deceased. She pointed out that the beneficiaries only listed themselves and 4 brothers leaving out the Objectors and all the female children of the deceased. She also cited Section 76 of the Law of Succession Act , and submitted that the beneficiaries did not notify or seek the 2 nd Objector’s and other siblings’ consent as required under Rule 26 of the Letters of Administration and Section 51(2) . Counsel further submitted that the beneficiaries did not disclose existence of this already filed instant Cause, Eldoret High Court Succession Cause No. 34 of 2006 , including the Objection raised herein. She cited several authorities. Regarding administration of the estate, she submitted that it should be treated as intestate since the alleged Will is invalid as she had had argued, and that the Will also now has no executor following discharge of the said Philip Chepkwony . She also pointed out that in any event, the beneficiaries themselves had no problem in the estate being administered as intestate since that is how they filed their own separate Petition in Eldoret High Court Succession Cause No. 261 of 2010 . She then prayed that the 2 nd Objector, Paul Kilel , be appointed a co-Administrator as it is evident that the Petitioners cannot be trusted to protect the interests of the estate.
Petitioners’ Submissions
19. Counsel for the beneficiaries, Mr. Martim , on his part, after setting out the bequests given to beneficiaries in the Will, restated the law on Wills as laid out in the Law of Succession Act , including the requirements for validity of a Will, and submitted that the Will in this case ought to be honoured as it meets all the requirements recognized in law, such as being signed and witnessed. In response to the allegation that the deceased may not have been in a correct state of mind when he made the Will, Counsel pointed out that under the provisions of Section 5(4) of the Law of Succession Act , it is the person who alleges such absence of mental capacity who bears the burden of proof, but in this case, the Objectors have not placed any evidence before the Court to discharge that burden. He cited several authorities, and also pointed out that the Objectors did not call any document examiner to testify on the veracity of the signature made on the Will.
20. Regarding the misdescription of the parcel of land appearing in the Will, he cited Section 22 of the Law of Succession Act and Rule 23 of the Probate & Administration Rules , and submitted that it is the intention of the testator which is paramount, and that in this case, the misdescription did not negate the clear and/or discernible intentions of the deceased. He contended that, in this case, the properties intended to be bequeathed are sufficiently identifiable from the description given, and that Courts will always try as much as possible try to construe the intention of a testator. He submitted that in this case, the Court should correct the parcel number to read Nandi/Kaboi/977 , instead of Nandi/Kaboi/477 , as the intention of the deceased can be clearly construed. In response to the prayer for revocation of the Grant on ground of non-disclosure, Counsel submitted that names of the Objectors clearly appear in the Will together with the portions and assets bequeathed to them by the deceased, and which Will was in before the Court for verification. He cited several authorities. He then submitted that unless in cases of partial intestacy, representation to the estate of a deceased person is required to be made in respect of the entire estate, and not a portion thereof, as the Act does not contemplate separation of an estate simply because there are disputes within the family. He submitted that by virtue of Section 34 and 66 of the Law of Succession Act , it is only in situations of partial intestacy that the estate can be separated so that assets provided for in a Will are distributed in accordance with the Will, and those not so included distributed in accordance with the law of intestacy. He therefore asserted that if there is any asset or inventory that was not included in the Will, the same can be subjected to transmission under the Law of Succession Act . In the end, he also submitted that Section 5 of the Act gave the deceased the freedom of testation to dispose of his property as he pleased. He then pointed out that a party aggrieved by such a Will has a remedy under Section 26 of the Act , and as such, the mere fact that a Will leaves out some of the children from benefit should not be a ground for invalidation of the Will.
Determination
21. The issues that call for determination in this matter can be broadly summarised as follows:
i) Whether the Grant of Letters of Administration issued to the Petitioners in Eldoret High Court Succession Cause No. 261 of 2010 before these two Causes were consolidated should be revoked for non-disclosure of material facts.
ii) Whether the Will dated 7/01/1997 is valid, and thus, whether the estate should be treated as testate or intestate.
iii) How should the estate be distributed, and who should be appointed to administer the estate?
22. In respect to revocation of Grants, Section 76 of the Law of Succession Act provides that:
“76. Revocation or annulment of grant
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.”
23. Clearly, the Objector has approached the Court under sub-sections (a), (b) and/or (c) above.
24. It is settled that the grounds set out in Section 76 above need to be proved with sufficient evidence as the mandate to revoke a Grant is a discretionary power that must be exercised judiciously and only on sound grounds, not whimsically or capriciously.
25. Regarding the issue of non-disclosure of some of their siblings as also survivors of the deceased, and the absence of consents from them acceding to the filing of their Petition, there is no question that the 1 st , 2 nd , and 3 rd beneficiaries, as the Petitioners in Eldoret High Court Succession Cause No. 261 of 2010 are guilty. I say so because they only listed themselves and 4 brothers as such survivors leaving out the Objectors and all their 3 sisters. In the circumstances, although the deceased left behind 12 children, only 7 were disclosed by the beneficiaries. No reasonable explanation having been given for this omission, I find that it was done deliberately. On this point, I associate myself fully with the holding of Hon. Lady Justice Njuguna (as she then was) which she made in the case of In re Estate of Eston Nyaga Ndirangu (Deceased) [2021] eKLR as follows:
“18. Rule 7 of the Probate and Administration Rules 1980 provides that application for grant of representation in relation to an estate of a deceased person to whose estate no grant or no grant other than one under section 49 or a limited grant under section 67 of the Act has been made, the application shall be by petition supported by an affidavit. The said affidavit must contain amongst other details, the names, addresses, marital status and description of all surviving spouses and children of the deceased, or, where the deceased left no surviving spouse or child, like particulars of such person or persons who would succeed in accordance with Section 39(1) of the Act {Rule 17(e)(i)}.
19. Rule 26 provides that letters of administration shall not be granted to any applicant without notice to every other person entitled in the same degree as or in priority to the applicant. Further that in an application for a grant where the applicant is entitled in a degree equal to or lower than that of any other person shall, in default of renunciation, or written consent in Form 38 or 39, by all persons so entitled in equality or priority , be supported by an affidavit of the applicant and such other evidence as the court may require.
20. The effect of the above provisions is that where a person is applying for a grant of letters of administration intestate, he must get consent from persons of equal or lower priority than him. The 1 st and 2 nd respondents having been brothers to the applicant and other beneficiaries, it therefore means that all the remaining beneficiaries ought to have consented to them being given the grant of letters of administration in relation to the estate herein. I have perused the court record and I note that consent to the making of a grant of letters of administration intestate which was filed contemporaneously with the petition was only made by two beneficiaries (being Joyce Ngithi Nyaga and Julius Kinyu) and wherein they were giving the consent to one John Ndii Nyaga, Kennedy Nyaga and Lucy Wanjiku Nyaga (3 rd respondent). There is no consent as to the other brothers and sisters having consented to the grant being given to the 1 st and 2 nd respondent. It is my view therefore that the said grant was obtained pursuant to pro
[...truncated]
“2. The background of the matter is that the deceased herein, Simion Kipkilel Arap Kirui, died on 17/10/1999 aged 88 years. From what I can decipher, upon his death, a Petition for Probate of a Will was filed in this Cause on 27/02/2006 by the Petitioner, Philip Chepkwony, as the executor of the Will. It does not appear that any Grant has been issued to date as I have not come across any in the Court file.
3. On 19/10/2007, the 2 Objectors, as sons of the deceased, filed a challenge against the Petition and subsequently, also filed a Cross-Petition for the Grant, as well as an Answer to the Petition. I also note that the main challenge raised in the Objection was on the authenticity of the Will alleged by the Petitioner and also on the Will’s clarity. It is also apparent that the main dispute in this Cause is the inheritance and/or distribution of the parcel of land known as Nandi/Kaboi/977 amongst the survivors of the deceased, and which property was owned by the deceased. All the 5 Applicants and the 2 Objectors are children of the deceased and thus siblings.
4. There is indication that another Succession Cause for the estate of the same deceased was subsequently filed, namely Eldoret High Court P&A No. 261 of 2010, and which appears to have been consolidated with this instant Cause.
5. Be that as it may, by the orders made on 16/07/2018 by Sewe J, it was directed that the Objection be heard by way of a viva voce trial. The trial then commenced on 25/03/2019 when the 1 st Objector testified. However, upon the parties’ agreement, further hearing was deferred and the matter referred to Court annexed Mediation which however was not successful. The parties therefore returned to Court and the trial resumed on 9/10/2019 when the 2 nd Objector and his 2 sisters testified as PW1, PW2 and PW3, respectively, and the Objectors’ case closed. Upon the transfer of Sewe J from this station, the matter was taken over by Ogola J who on 25/04/2022 heard the testimony of the Applicant’s 1 st witness who testified as DW1. He is the 3 rd beneficiary named above, Cornelius Kipngeno Kilel. Again, upon the transfer of Ogola J, I took over the case and the Applicants’ 2 nd witness, Advocate Jones Nyachiro, who was said to have been one of the 2 Advocates who witnessed the Will, began giving his evidence-in-chief testimony as DW2.”
2. I may make the clarification that the Petition herein by the said executor, Philip Chepkwony , was filed through Messrs Kalya & Co. Advocates , while the second Cause with which it was consolidated, namely, Eldoret High Court Succession Cause No. 261 of 2010 , was filed in person subsequently, by 3 sons of the deceased, namely, the 2 nd beneficiary ( Andrew Kipsang Kilel ), the 3 rd beneficiary ( Cornelius Kipngeno Kilel ), and Joseph Kilel . I also note that unlike this instant Cause, which was based on a written Will, and in which no Grant of Probate appears to have been issued to date, a Grant of Letters of Administration Intestate had been issued to the 3 said brothers on 22/06/2011 as joint Administrators before the two matters were consolidated. On its part, the Objection was filed through Messrs Nyairo & Co. Advocates .
3. It may also be necessary to mention that the Objection, in challenging the Will, apart from citing lack of clarity in the Will, also doubted its authenticity and authenticity, and also contended that insofar as same prohibits sub-division of land, it is against justice and impedes the administration of the estate. The Objection also contended that the Will purports to distribute the parcel of land described as Nandi/Kaboi/977 , which parcel of land does not belong to the deceased, and that the Will is also ambiguous as to how income from land is to be distributed, and the implementation thereof. The Objectors then stated that the original Will is required for purposes of making a Grant of Probate, unless its absence is sufficiently explained, which has not been done in this case. It was also claimed that the Petitioner did not seek the consent of the beneficiaries before filing the Petition. The Objectors, in the end, therefore prayed that the Will be ignored and the estate be thus distributed among all the beneficiaries under the rules of intestate distribution.
4. I may also mention that after the Objection was filed, the executor of the alleged Will, Philip Chepkwony applied to be discharged from the Cause, which Application was allowed on 7/05/2011. Upon withdrawal of the executor therefore, only the Petitioners in Eldoret High Court P&A No. 261 of 2010 , now renamed as the 2 nd beneficiary ( Andrew Kipsang Kilel ), the 3 rd beneficiary ( Cornelius Kipngeno Kilel ), and Joseph Kilel , remained as Petitioners. Their legal representation was then taken over by Messrs Martim & Co. Advocates .
5. Back to the viva voce trial, in the course of the testimony of Mr. Jones Nyachiro ( DW2 ), in which he stated that the Will on record bore an error in the misdescription of a parcel of land, an alleged version with corrections made thereon by the deceased, and sought to be relied upon by the beneficiaries could not be traced, and that what was on record was a photocopy. Ms. Odwa , Counsel for the Objectors, having objected to production of the photocopy, Mr. Nyachiro (DW2) was stood down to enable Counsel for the beneficiaries, Mr. Martim , file a formal Application seeking leave to produce the photocopy as secondary evidence.
6. The said Application was eventually filed and canvassed but which I dismissed by way of the said Ruling dated 4/04/2025 having found, inter alia , that no sufficient explanation had been offered for the whereabouts of the original Will, and also that the Application had been filed after an unexplained inordinate delay, and long outside the 14 days given for filing it. Mr. Nyachiro then returned and concluded his evidence.
7. At the trial, in total, the Objector called 4 witnesses while the beneficiaries called 2. I will now, in summary, recite the witnesses’ testimonies.
Objectors’ Witnesses’ Testimonies
8. PW1 was the 1 st Objector, Peter Cheruiyot Kilel . Led by Ms. Odwa , he reiterated that the deceased was his father, who left behind 12 children and a widow, Veronica Kirui , who also died subsequently in the April 2000. He produced a copy of the certificate of death and testified further that the deceased left behind the parcel of land known as Nandi/Kaboi/977 , measuring 64 acres. He also stated that the deceased left a Will which however, he ( PW1 ) only learnt of after this Cause was filed. He testified further that he filed the Objection because the Will did not concern the family parcel of land Nandi/Kaboi/977 , but was in respect to the separate parcel of land known as Nandi/Kaboi/477 , which is registered in the name of one Kili arap Mugun , and not the deceased. He produced copies of the respective Search Reports and prayed that the Will be disregarded as it has no connection to the family parcel of land, Nandi/Kaboi/977 . He prayed further that the Petition be dismissed as the executor did not have a right to petition on behalf of the estate, and that the estate should be distributed to all the beneficiaries equally. Under cross-examination by Mr. Martim , he stated that he has been living on the parcel of land Nandi/Kaboi/977 since 1999, which, he stated, has a tea plantation of 15 acres, and he agreed that he has been earning income from the tea plantation. He agreed that he had not produced any accounts to show how much he has been earning from the tea crop, and insisted that he had been living on the parcel of land even before the deceased died. He confirmed knowing the said Philip Chepkwony , as a neighbour and confirmed that he ( Philip Chepkwony ) is the person named in the Will as executor. He also confirmed that in the Will, all beneficiaries are indicated to have been bequeathed 9 acres each, except for one Peter Cheruiyot , who is indicated to have been bequeathed 6 acres. He also contended that the 2 nd Objector, Paul Kiprono Kilel , has his own parcel of land not owned by the deceased. In re-examination, he stated that he has been occupying 10 acres of the parcel of land with his children, which 10 acres the deceased had allocated to him.
9. PW2 was the 2 nd Objector, Paul Kiprono Kilel . He adopted his Affidavit sworn on 23/10/2007, and he, too, contended that the parcel of land Nandi/Kaboi/477 is not part of the estate of the deceased as it belongs to a different person, namely, one Kilel arap Mugun as indicated in the Search Report. He, too, insisted that the correct parcel of land forming the estate of the deceased is Nandi/Kaboi/977 . He agreed that in the Will, he ( DW2 ) is indicated to have been bequeathed the separate parcel of land known as Nandi/Kamobo/480 but claimed that such parcel of land was personally purchased by him in the year 1976, and he has a title document for the same, a copy whereof he produced, together with copies of the Search Report and the Application thereto. He, too, stated that the deceased left behind 12 children but protested that the Will only provides for 7 as it left out the daughters, who also deserve to receive a share of the estate. He also pointed out that the Will is dated 7/11/1997 by which date he had already obtained his title document for the said Nandi/Kamobo/480 , and was residing there. In cross-examination, he stated that he purchased the said Nandi/Kamobo/480 from one Reuben Kibii Kosgei , and denied that the purchase price was contributed to by his brothers. He also stated that he has never seen the original version of the Will. He also agreed that his sisters have never complained about being left out of the Will, and also agreed that for 10 years, the 1 st Objector ( Peter Cheruiyot Kilel ), the 2 nd beneficiary ( Andrew Kipsang Kilel ), and the 3 rd beneficiary ( Cornelius Kipngeno Kilel ) are the people who have been receiving the proceeds of the tea crop from Nandi/Kaboi/977 as its caretakers. He denied knowledge of any company known as Sikifwa , allegedly incorporated by the family to look after the farm. He thus denied knowledge of any Will made by the deceased (his father) but agreed that the deceased was of sound mind at the time of his death.
10. PW3 was Magdalena Chemutai Kirui , who also testified that she is a daughter of the deceased. She, too confirmed that they are 12 siblings but that the Will only provides for 7 of them. She pointed that she is among those omitted and prayed that she should also be given a share of the estate, just like all her other siblings, whether male and female. In cross-examination, she agreed that she is married but protested that his brothers never involved the sisters in the discussions on distribution of the estate, and completely ignored them. She protested that the brothers should have given them at least 1 acre each or its equivalent in cash. Regarding the separate parcel of land Nandi/Kamobo/480 owned by the 2 nd Objector, she insisted that the 2 nd Objector purchased it on his own from his own money, and she thus denied that the deceased (her father) or any of her brothers contributed to the purchase thereof.
11. PW4 was Martina Chepkemoi Kirui . She, too, testified that the deceased was his father, and that they are 12 children, namely, 8 brothers and 3 sisters from one mother. She, too, pointed out that the alleged Will relied on by the Petitioners only contains the names of 7 siblings, and that she is among those omitted. She insisted that she, too, is entitled to a share of the estate which should be shared equally among all the siblings, including the daughters. In re-examination, she, too, denied any knowledge of his brothers having formed a family welfare group to run the farm. She also denied receiving any financial assistance from her brothers in educating her children but confirmed that she has been receiving a share of the tea bonus. She stated further that all siblings have been receiving an annual payment of Kshs 2,000/- since their father’s death. She then stated that she would be contented with 2 acres of land or its equivalent in cash.
Petitioners’ Witnesses’ Testimony
12. DW1 was the Cornelius Kipngeno Kilel , the 3 rd Beneficiary. Led by Mr. Martim , he adopted his Affidavit sworn on 25/09/2019 filed in this Cause as his evidence-in-chief. He refuted the Objection filed herein, and testified that the 1 st Objector ( Peter Cheruiyot Kilel ) resided on 3 acres of the parcel of land known as Nandi/Kaboi/977 which, according to him, is the parcel of land referred to in the Will. He also pointed out that the 1 st Objector agreed to, and did withdraw his Objection after family meetings. He then stated that the 2 nd Objector ( Paul Kiprono Kilel ), after disagreements between his (2 nd Objector’s) wife and another brother, procured a separate parcel of land measuring 2 acres but subsequently, their father, reasoning that the piece of land was too small, asked the 2 nd Objector to procure a bigger plot, upon which the Objector obtained a 10 acres parcel of land but since the 2 nd Objector did not have the money, he requested their father to purchase the land for him. According to him, upon their father’s request, their other brother, the 2 nd beneficiary ( Andrew Kipsang Kilel ), contributed the sum of Kshs 4,000/- but as the purchase price was Kshs 9,000/-, their father contributed the balance of Kshs 5,000/-, and that the parcel of land was then registered in the name of the 2 nd Objector. Under cross-examination by Ms. Odwa , he insisted that his father’s Will should be honoured, although he conceded that it has no provision for the daughters, and refers to the parcel of land described as Nandi/Kaboi/477 which does not belong to the deceased (his father), and not Nandi/Kaboi/977 which is the parcel of land owned by the deceased. He also conceded that as Petitioners, he and the other beneficiaries did not disclose in the Petition that they filed herein that there were other survivors other than those they named. According to him, the Will did not provide for his sisters because they were married.
13. DW2 was the Advocate Jones Nyachiro . He stated that he has been in legal practice for 27 years, and that on 7/11/1997 when he was still in the employment by Messrs Kalya & Co. Advocates , he, in the course of his duties, prepared the Will for the deceased, in which the deceased appointed the said Philip Chepkwony as Trustee. He also testified that the Will referred to the parcel of land known as Nandi/Kaboi/977 and also Nandi/Kamobo/480 and the manner in which they were to be distributed. He testified further that he witnessed the Will together with his then colleague Advocate, Mr. Simon Lilan , after the deceased signed it, and that the original of the Will was filed in Court. He stated that he left the law firm of Kalya & Co . in 2002, and that sometime in 2006, Kalya & Co . contacted him and informed that they were unable to trace the original of the Will but showed him a photocopy bearing his signature. He testified further that upon perusing the photocopy, he noticed that the intended parcel of land Nandi/Kaboi/977 had been erroneously indicated therein as Nandi/Kaboi/477 . He thus insisted that the correct parcel of land which the deceased intended to bequeath under the Will was Nandi/Kaboi/977 measuring 25.49 Hectares, which the Will correctly the equivalent thereof as 63 acres. He then sought to produce the said photocopy version of the Will as an exhibit, in which version he claimed the deceased had corrected the misdescription.
14. It is at this point that Ms. Odwa objected to reference to the original alleged “corrected” Will by the witness, which original, as aforesaid, she stated that she had never seen, and which Objection eventually led to the beneficiaries filing the Application for leave to produce a photocopy thereof. As already stated, I dismissed that Application by way of my said Ruling rendered on 4/04/2025, after which the witness returned and concluded his evidence after being cross-examined and re-examined. He however basically simply reiterated the matters he had already stated and the beneficiaries’ case was then closed.
15. I may also state that it is during the above intervening period, before DW3 was cross-examined, that the 1 st Objector, Peter Cheruiyot Kilel , appeared in Court in person and confirmed withdrawing his Objection. Under these circumstances, only the 2 nd Objector now therefore remains as an Objector.
Written Submissions
16. Upon close of the trial, the parties filed Written Submissions. The 2 nd Objector filed the Submissions dated 29/10/2025, while the beneficiaries’ is dated 28/11/2025.
2 nd Objector’s Submissions
17. Ms. Odwa , the 2 nd Objector’s Counsel, in challenging the alleged Will dated 17/11/1997, submitted that the deceased, at the time that he is alleged to have executed the Will, was 88 years old, senile, and did not have the mental capacity to execute a Will. She also reiterated that the Will is invalid insofar as the parcels of land purportedly bequeathed therein do not belong to the deceased, and also that the Will did not provide for all the beneficiaries. She asserted that, contrary to the requirements of Rule 54(3) of the Probate & Administration Rules , no Affidavit was sworn by the representatives of Messrs Kalya & Co. Advocates , or any evidence tendered by that law firm confirming that the Will was read over to the deceased and the contents of each clause explained to him, and that he confirmed that he understood the same. She also contended that there is lack of uniformity in the signature of the deceased in the entire Will, that there is discrepancy in the numbering of the pages in the Will as page 3 and 4 both mention pages 3,4,5 and 6. Counsel also reiterated the inclusion of the parcel of land Nandi/Kaboi/977 yet the property did not belong to the deceased, which error, although the Petitioners downplayed as a mere typographical error, it cannot be so considering that the alleged error consistently appears in two different pages of the Will. She also pointed out that DW2 , Jones Nyachiro Advocate , who alleged to have witnessed the Will, confirmed that the only version he witnessed was the one with the alleged error, hence shooting down any claim that there could have been a second version signed later by the deceased. Counsel contended that the alleged second version appears to have been “manufactured” upon realization that the original was erroneous, reason why, according to her, Messrs Kalya & Co . declined to come to Court to testify on its validity. She reiterated further the inclusion of the parcel of land Nandi/Kamobo/480 and its bequest to the 2 nd Objector yet the property did not belong to the deceased but to the 2 nd Objector who had already been registered as owner way back in the year 1976.
18. Counsel also reiterated that the Will had omitted the 2 nd Objector and all daughters of the deceased from benefiting from income from the sale of tea, and directed that the 1 st Objector do continue residing in an undisclosed parcel of land. He cited the case of Julius Kinyua Chabari & Another v Mary Mukwamugo Njagi & 4 Others [2016] KEHC 4470 (KLR) . She then submitted that the Grant issued to the 1 st , 2 nd and 3 rd beneficiaries as Petitioners in Eldoret High Court Succession Cause No. 261 of 2010 before these two Causes were consolidated, is for revocation given that they fraudulently obtained the same by deliberately failing to disclose to the Court, all beneficiaries and assets of the deceased. She pointed out that the beneficiaries only listed themselves and 4 brothers leaving out the Objectors and all the female children of the deceased. She also cited Section 76 of the Law of Succession Act , and submitted that the beneficiaries did not notify or seek the 2 nd Objector’s and other siblings’ consent as required under Rule 26 of the Letters of Administration and Section 51(2) . Counsel further submitted that the beneficiaries did not disclose existence of this already filed instant Cause, Eldoret High Court Succession Cause No. 34 of 2006 , including the Objection raised herein. She cited several authorities. Regarding administration of the estate, she submitted that it should be treated as intestate since the alleged Will is invalid as she had had argued, and that the Will also now has no executor following discharge of the said Philip Chepkwony . She also pointed out that in any event, the beneficiaries themselves had no problem in the estate being administered as intestate since that is how they filed their own separate Petition in Eldoret High Court Succession Cause No. 261 of 2010 . She then prayed that the 2 nd Objector, Paul Kilel , be appointed a co-Administrator as it is evident that the Petitioners cannot be trusted to protect the interests of the estate.
Petitioners’ Submissions
19. Counsel for the beneficiaries, Mr. Martim , on his part, after setting out the bequests given to beneficiaries in the Will, restated the law on Wills as laid out in the Law of Succession Act , including the requirements for validity of a Will, and submitted that the Will in this case ought to be honoured as it meets all the requirements recognized in law, such as being signed and witnessed. In response to the allegation that the deceased may not have been in a correct state of mind when he made the Will, Counsel pointed out that under the provisions of Section 5(4) of the Law of Succession Act , it is the person who alleges such absence of mental capacity who bears the burden of proof, but in this case, the Objectors have not placed any evidence before the Court to discharge that burden. He cited several authorities, and also pointed out that the Objectors did not call any document examiner to testify on the veracity of the signature made on the Will.
20. Regarding the misdescription of the parcel of land appearing in the Will, he cited Section 22 of the Law of Succession Act and Rule 23 of the Probate & Administration Rules , and submitted that it is the intention of the testator which is paramount, and that in this case, the misdescription did not negate the clear and/or discernible intentions of the deceased. He contended that, in this case, the properties intended to be bequeathed are sufficiently identifiable from the description given, and that Courts will always try as much as possible try to construe the intention of a testator. He submitted that in this case, the Court should correct the parcel number to read Nandi/Kaboi/977 , instead of Nandi/Kaboi/477 , as the intention of the deceased can be clearly construed. In response to the prayer for revocation of the Grant on ground of non-disclosure, Counsel submitted that names of the Objectors clearly appear in the Will together with the portions and assets bequeathed to them by the deceased, and which Will was in before the Court for verification. He cited several authorities. He then submitted that unless in cases of partial intestacy, representation to the estate of a deceased person is required to be made in respect of the entire estate, and not a portion thereof, as the Act does not contemplate separation of an estate simply because there are disputes within the family. He submitted that by virtue of Section 34 and 66 of the Law of Succession Act , it is only in situations of partial intestacy that the estate can be separated so that assets provided for in a Will are distributed in accordance with the Will, and those not so included distributed in accordance with the law of intestacy. He therefore asserted that if there is any asset or inventory that was not included in the Will, the same can be subjected to transmission under the Law of Succession Act . In the end, he also submitted that Section 5 of the Act gave the deceased the freedom of testation to dispose of his property as he pleased. He then pointed out that a party aggrieved by such a Will has a remedy under Section 26 of the Act , and as such, the mere fact that a Will leaves out some of the children from benefit should not be a ground for invalidation of the Will.
Determination
21. The issues that call for determination in this matter can be broadly summarised as follows:
i) Whether the Grant of Letters of Administration issued to the Petitioners in Eldoret High Court Succession Cause No. 261 of 2010 before these two Causes were consolidated should be revoked for non-disclosure of material facts.
ii) Whether the Will dated 7/01/1997 is valid, and thus, whether the estate should be treated as testate or intestate.
iii) How should the estate be distributed, and who should be appointed to administer the estate?
22. In respect to revocation of Grants, Section 76 of the Law of Succession Act provides that:
“76. Revocation or annulment of grant
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.”
23. Clearly, the Objector has approached the Court under sub-sections (a), (b) and/or (c) above.
24. It is settled that the grounds set out in Section 76 above need to be proved with sufficient evidence as the mandate to revoke a Grant is a discretionary power that must be exercised judiciously and only on sound grounds, not whimsically or capriciously.
25. Regarding the issue of non-disclosure of some of their siblings as also survivors of the deceased, and the absence of consents from them acceding to the filing of their Petition, there is no question that the 1 st , 2 nd , and 3 rd beneficiaries, as the Petitioners in Eldoret High Court Succession Cause No. 261 of 2010 are guilty. I say so because they only listed themselves and 4 brothers as such survivors leaving out the Objectors and all their 3 sisters. In the circumstances, although the deceased left behind 12 children, only 7 were disclosed by the beneficiaries. No reasonable explanation having been given for this omission, I find that it was done deliberately. On this point, I associate myself fully with the holding of Hon. Lady Justice Njuguna (as she then was) which she made in the case of In re Estate of Eston Nyaga Ndirangu (Deceased) [2021] eKLR as follows:
“18. Rule 7 of the Probate and Administration Rules 1980 provides that application for grant of representation in relation to an estate of a deceased person to whose estate no grant or no grant other than one under section 49 or a limited grant under section 67 of the Act has been made, the application shall be by petition supported by an affidavit. The said affidavit must contain amongst other details, the names, addresses, marital status and description of all surviving spouses and children of the deceased, or, where the deceased left no surviving spouse or child, like particulars of such person or persons who would succeed in accordance with Section 39(1) of the Act {Rule 17(e)(i)}.
19. Rule 26 provides that letters of administration shall not be granted to any applicant without notice to every other person entitled in the same degree as or in priority to the applicant. Further that in an application for a grant where the applicant is entitled in a degree equal to or lower than that of any other person shall, in default of renunciation, or written consent in Form 38 or 39, by all persons so entitled in equality or priority , be supported by an affidavit of the applicant and such other evidence as the court may require.
20. The effect of the above provisions is that where a person is applying for a grant of letters of administration intestate, he must get consent from persons of equal or lower priority than him. The 1 st and 2 nd respondents having been brothers to the applicant and other beneficiaries, it therefore means that all the remaining beneficiaries ought to have consented to them being given the grant of letters of administration in relation to the estate herein. I have perused the court record and I note that consent to the making of a grant of letters of administration intestate which was filed contemporaneously with the petition was only made by two beneficiaries (being Joyce Ngithi Nyaga and Julius Kinyu) and wherein they were giving the consent to one John Ndii Nyaga, Kennedy Nyaga and Lucy Wanjiku Nyaga (3 rd respondent). There is no consent as to the other brothers and sisters having consented to the grant being given to the 1 st and 2 nd respondent. It is my view therefore that the said grant was obtained pursuant to pro
[...truncated]