Mwaura & another v Gitau & another (Civil Appeal 329 of 2018) [2024] KECA 839 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that family members who challenge a will must bring real evidence, not just accusations, to have it invalidated.
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 learned trial judge erred in finding the evidence of Nicholas Kiania Njau advocate sufficient to satisfy the requirements of sections 10 and 11 of the Law of Succession Act as to attestation of the will by both the deceased and the two witnesses
- 2.Whether the learned trial judge erred in finding that the deceased had mental capacity to make the will
- 3.Whether the learned trial judge erred in failing to consider the evidence of the appellants that the suit land was held in trust by the deceased, and whether the appellants were adequately provided for
- 4.Whether the learned trial judge delivered an unprocedural judgment having realized that directions under Rule 17(6) had not been taken
- 5.Whether the notice of appeal against the order confirming the grant was properly lodged
Key legal issues
#Mental capacity of the testator
The appellants produced no evidence, medical or otherwise, to displace the presumption that the deceased was of sound mind; the burden of proving incapacity under section 5(4) of the Law of Succession Act lay on them and was not discharged.
The law presumes a testator of sound mind under section 5(3) of the Act, and the burden of proving incapacity rests on the person alleging it. The appellants relied on bare allegations of old age, senility and illness unrelated to the brain, without medical evidence. Capacity is a question of fact provable by medical, oral or circumstantial evidence; only if the objector raises real doubt does the burden shift to the propounder. The uncontroverted evidence of the drafting advocate satisfied the Banks v Goodfellow criteria.
Attestation of the will
The challenge to attestation failed because the appellants never specified which requirements of section 11 they alleged were breached and adduced no evidence; the evidence of the drafting advocate sufficed to prove due execution, and both attesting witnesses need not testify.
Section 11 of the Law of Succession Act prescribes the requirements for a valid written will. The appellants relied on grounds of appeal and submissions rather than evidence, which cannot substitute for proof. The advocate identified his signature and that of his clerk; the clerk's non-attendance, even if deceased, did not invalidate the will where his signature was not challenged. Section 10 concerning oral wills was inapplicable.
Trust over the suit property
The probate court had no jurisdiction to determine the alleged trust; that question belongs exclusively to the Environment and Land Court under Article 162(2)(b) of the Constitution.
Article 162(2)(b) confers on the Environment and Land Court jurisdiction over disputes relating to title, tenure and interests in land, including whether a trust exists. The mandate of the probate court under the Law of Succession Act is limited and does not extend to declaring trusts or ownership. A party wishing to pursue such a claim must file a substantive suit in that court.
Adequate provision for beneficiaries
The court could not, on its own motion, alter the disposition of the estate; reasonable provision under section 26 of the Law of Succession Act may be ordered only on application by or on behalf of a dependant.
Section 26 is triggered by an application by or on behalf of a dependant claiming that the will or intestacy does not make reasonable provision for them. The appellants had not invoked sections 26 or 29 before the trial court, so the judge was under no duty to consider their provision sua sponte. The judge's focus on the validity of the will was therefore not erroneous.
Procedural irregularity under Rule 17(6)
Any procedural infraction in the trial was cured by Article 159 of the Constitution since the matter was heard and determined on the merits.
The summons for revocation of grant was heard through viva voce evidence, submissions were filed and considered, and judgment was delivered on the merits. The complaint about non-taking of directions under Rule 17(6) of the Probate and Administration Rules was a mere procedural technicality which Article 159 of the Constitution cures.
Competence of the appeal against the confirmation of grant
The notice of appeal against the order confirming the grant was incompetent because it was lodged 17 days before that order was made and covered two decisions in one notice; the related prayer was struck out.
Rule 77 of the Court of Appeal Rules requires a notice of appeal to be lodged within fourteen days after the date of the decision appealed from. The notice was filed three days after the judgment but 17 days before the confirmation order, and one notice cannot serve two separate decisions. Separate notices were required for each order or judgment.
Legal principles established
#- A probate court cannot determine questions of ownership of property or declaration of trusts over land; such disputes lie in the exclusive jurisdiction of the Environment and Land Court.
- Illiteracy of a testator is not, of itself, a ground of incapacity to make a will under the Law of Succession Act.
- There is no legal requirement that all attesting witnesses to a will must be called to testify to its validity, especially where their signatures are not challenged.
- Submissions and grounds of appeal cannot take the place of evidence.
- On a first appeal, the appellate court subjects the evidence to a fresh examination and draws its own conclusions, but departs from trial findings only where they are not based on the evidence, were made on wrong principles, or where discretion was exercised injudiciously.
- An application under section 26 of the Law of Succession Act for reasonable provision must be brought by or on behalf of a dependant; the court cannot act suo moto.
Court orders
#- 1.The appeal is dismissed in its entirety
- 2.The judgment of the High Court (W. Musyoka, J.) dated 4th May 2018 is confirmed
- 3.The prayer seeking to set aside the order of confirmation of the grant is struck out as incompetent
- 4.No orders as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya
- Not stated in the judgment
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal Rules (notice of appeal under Rule 77); succession cause arising under the Law of Succession Act
Relief refused
#Setting aside of the order confirming the grant made on 23rd May 2018
The notice of appeal challenging the confirmation of grant was lodged 17 days before that order was made, flouting Rule 77 of the Court of Appeal Rules, and one notice could not cover two appeals
Declaration that the will of the deceased was invalid
The appellants adduced no evidence of lack of capacity, illiteracy was not a ground of incapacity, the attestation challenge was unsubstantiated, and submissions cannot take the place of evidence
Determination of an alleged trust over the suit property and of adequate provision for the appellants
Trust over land falls within the exclusive jurisdiction of the Environment and Land Court, and adequate provision can only be considered upon an application by a dependant under section 26 of the Law of Succession Act
Costs
No orders as to costs - 'As the appeal involves family members, we make no orders as to 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.
The issue of trust is the exclusive jurisdiction of the Environment and Land Court. If the appellants wished to pursue that line they should have filed a suit in that court.
we agree with the learned judge that the law does not give illiteracy as one of the grounds that would render a testator incapacitated.
It is trite that submissions, and indeed even grounds of appeal cannot take the place of evidence. Submissions cannot be verified, and accepting them as evidence will be tantamount to ambushing the opponent.
Whether deceased or not, there is no law requiring that all persons who attest a Will must be called as witnesses. It is not a valid argument that both witnesses of the attestations should testify in Court, especially where their signatures are not under challenge.
Having considered the appellants appeal, we find that the appeal lacks merit and fails in its entirety. We dismiss the appeal accordingly. The judgment of the High Court, (W. Musyoka, J). dated 4th May 2018 is confirmed.
The prayer seeking to set aside the order of confirmation of the grant is incompetent, has not legs to stand on and is consequently struck out.
As the appeal involves family members, we make no orders as to costs.
Issues in the judgment
#The date of the High Court judgment appears as both '4th May 2018' and, in one passage, '201' - an apparent typographical error
Rule 77 of the Court of Appeal Rules is quoted twice with overlapping but slightly differently broken-up text, and the quotation text is fragmented mid-passage
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwaura & another v Gitau & another (Civil Appeal 329 of 2018) [2024] KECA 839 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/839/eng@2024-07-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.