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Court of AppealDismissedCivil Appeal No. 60 of 2014· [2015] KECA 251 (KLR)

Sisilia Mwikali Kirwa v H C & another [2015] KECA 251 (KLR)

Court of Appeal of Kenya
6 November 2015
DMD. K. MusingaSKS. Gatembu KairuAMA. K. Murgor
2,809 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed a will remains valid even when witnesses sign on different dates, and estates with valid wills cannot be shared as if there were no will.

What this practically means

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Executive summary

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The Court of Appeal at Kisumu (Musinga, Gatembu Kairu and Murgor, JJ.A) dismissed an appeal by Sisilia Mwikali Kirwa against the decision of Chitembwe, J. of the High Court at Kakamega, which revoked the grant of letters of administration intestate issued to her for the estate of Leah Chesongony Cheruiyot, who died in 1992. The respondents, the deceased's daughters, obtained revocation on the ground that the deceased had died testate, leaving a will dated 31st December 1990, and that the appellant had concealed material facts in her petition, in which she described herself as 'widow' and distributed the sole asset, Kakamega/Sergoit/312, without disclosing the will. The trial Judge upheld the will's validity and redistributed the land among the respondents, Christine Cherubet Kirwa and the appellant. On appeal, the appellant argued that the will was invalid because its two witnesses signed on different dates, contrary to section 11(c) of the Law of Succession Act, and that it was discriminatory. The Court of Appeal held that section 11(c) expressly provides that witnesses need not be present at the same time and that no particular form of attestation is required, so the will could not be vitiated on that account; the execution of the will was unchallenged in cross-examination. The Court further held that a valid will precludes intestate administration, found the trial Judge's distribution fair since he had provided for the appellant as a dependant, and declined to interfere. The appeal was dismissed with each party bearing its own costs.

Key legal issues

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01

Validity of the will witnessed on two different dates

Holding

The will was valid; witnessing on different dates does not vitiate it, as section 11(c) requires neither simultaneous presence of witnesses nor any particular form of attestation

Reasoning

The court noted that only PW1 testified as a witness to the will and his testimony that the deceased executed it was not challenged. The sole complaint was that the witnesses signed on different dates. The court held that section 11(c) expressly permits this, so the testator could execute the will before one witness and later have another witness sign upon personal acknowledgment of the testator's signature.

p. 5
02

Mode of distribution of the estate

Holding

The High Court's distribution, made with regard to the will and providing for the appellant as a dependant, would not be disturbed

Reasoning

The appellant had petitioned on the wrong premise that the land belonged to her late husband, and the trial court had found that most of her children were not dependants of the deceased. Since a valid will existed, the estate could not devolve as intestate; the Judge had made provision for the appellant, and the appellate court found no basis for interference.

p. 6

Legal principles established

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  • A will is not invalidated merely because it was witnessed on different dates; section 11(c) of the Law of Succession Act does not require more than one witness to be present at the same time and prescribes no particular form of attestation
  • Where a deceased left a valid Will, the estate cannot be administered or distributed as an intestate estate

Court orders

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  1. 1.Appeal dismissed in its entirety
  2. 2.Each party to bear its own costs of the proceedings in the High Court and of the appeal

Authorities

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Legislation

  • Law of Succession Actsection 2
  • Law of Succession Actsection 11
  • Law of Succession Actsection 11(c)
  • Law of Succession Actsection 29

Cases cited (1)

  • Selle vs. Associated Motor Boat Co Ltd
    [1968] EA 123
On appeal from
High Court of Kenya at Kakamega
H.C. Succ. Cause No. 25 of 2009
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (succession matter appeals from the High Court)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Sisilia Mwikali Kirwa v H C & another [2015] KECA 251 (KLR)", Case Analysis (2015). Civil Appeal No. 60 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/251/eng@2015-11-06

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.