Samwel Kiplagat Biwott Kendagor v Grace Wangoi Njogu & 7 others [2019] KECA 976 (KLR)
The bottom line
#Kenya's Court of Appeal voided a will because no one proved the deceased actually signed it and witnesses attested it, so the estate passes under intestacy rules.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the respondents' objection filed eleven days out of time, without leave, was properly before the court
- 2.Whether the High Court erred in proceeding by affidavit evidence rather than oral evidence
- 3.Whether the Will dated 31st December 2003 was validly made and attested under section 11 of the Law of Succession Act
- 4.Whether the High Court erred in distributing the estate among the deceased's children equally
Key legal issues
#Late filing of objection to a grant of probate
The objection filed eleven days late was deemed properly filed despite the absence of an extension application.
Section 68(1) of the Law of Succession Act requires objections within the gazetted period or such longer period as the court allows. The court found the 11-day delay not inordinate and noted Rule 73 of the Probate and Administration Rules confers inherent power to make orders necessary for the ends of justice. In a succession matter, substantial justice prevails over procedural technicalities, so the objection was deemed properly filed.
Mode of hearing the objection - affidavit or oral evidence
The learned judge did not err in rejecting the appellant's late request for oral evidence.
Under section 70 of the Law of Succession Act the court has discretion to determine whether to call evidence. Directions for affidavit evidence had been given six months before the appellant sought to call witnesses, and the judge gave reasons for rejecting the request. The Court of Appeal found no basis to fault that exercise of discretion.
Validity of the Will under section 11 of the Law of Succession Act
The Will was invalid because there was no evidence of the deceased's signature or of proper attestation.
Section 11 prescribes mandatory formalities: signature or mark by the testator and attestation by two or more competent witnesses. The forensic document examiner's report dissimilarities between the thumbprint on the Will and the deceased's known prints, the DCI letter said the print was unsuitable for comparison, and neither attesting advocate swore an affidavit. The trial judge misdirected himself by focusing on capacity under section 5 rather than execution under section 11.
Consequence of invalidity for distribution of the estate
With the Will declared invalid, the High Court's order distributing the estate equally among the children fell with it.
Because the trial court's finding of validity was wrong, its invocation of sections 26, 27, 28 and 29 of the Law of Succession Act to redistribute the estate was equally wrong. The Court of Appeal set aside the judgment, declared the Will null and void, ordered the probate petition struck out, leaving the estate to be administered on intestacy.
Legal principles established
#- A written Will is valid only if the requirements of section 11 of the Law of Succession Act - signature by the testator and attestation by two or more competent witnesses - are established by evidence; a court cannot pronounce a Will valid without evidence of signature and attestation.
- In succession matters, courts should override procedural technicalities, including late-filed objections, in favour of substantial justice.
- Parties are entitled to have all issues they raise addressed by the court; failure to determine a raised issue is an error.
Court orders
#- 1.The appellant's appeal is dismissed
- 2.The cross-appeal is allowed
- 3.The judgment of the High Court is set aside
- 4.Substituted therefor: an order declaring the Will dated 31st December 2003 purported to be of the deceased invalid, null and void
- 5.The petition for grant of probate of the written Will in the estate of the deceased filed on 4th July 2014 is struck out
- 6.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kitale
- HC. Succession Cause No. 159 of 2014
- Jurisdiction invoked
- First appellate jurisdiction under the Court of Appeal Rules; appeal and cross-appeal under Rule 93 of the Court of Appeal Rules from a ruling in a succession cause
Relief refused
#Appellant's prayer that the objection filed out of time be disallowed and that he be allowed to adduce oral evidence
The 11-day delay was not inordinate and substantial justice favoured deeming the objection properly filed; the judge properly exercised discretion to reject oral evidence after directions for affidavit evidence
Any order of costs against the respondents
The dispute arose from errors of the lower court and no evidence showed the appellant was interested in the estate
Costs
No order as to costs - each party to bear their own costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
There being no evidence before the learned judge, that the deceased signed the Will and that the same was attested, the learned judge was wrong in finding that the Will was valid.
However, this being a succession matter, it is in the interests of justice that the court determines the matter by applying substantial justice rather than procedural technicalities.
That delay was not inordinate and, had an appropriate application been made, the court would not have had any difficulties extending time.
The upshot of the above, is that we dismiss the appeal and allow the appellants cross appeal, set aside the judgment of the High Court and substitute thereto an order declaring the Will dated 31 st December, 2003, purported to be of the deceased, invalid, null and void
Issues in the judgment
#The judgment states 'we dismiss the appeal and allow the appellants cross appeal' although the cross-appeal was filed by the respondents; context and the orders actually made (Will declared invalid, probate petition struck out) show the respondents' cross-appeal succeeded and the appellant's appeal was dismissed.
Paragraph numbering is duplicated/misordered in the judgment (two paragraphs numbered [12], and paragraph [13] appears before a second [12]).
The fourth respondent is listed in the coram as 'FOURH RESPONDENT', an apparent typographical error for 'FOURTH'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samwel Kiplagat Biwott Kendagor v Grace Wangoi Njogu & 7 others [2019] KECA 976 (KLR)", Case Analysis (2019). Civil Appeal No. 49 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/976/eng@2019-01-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.