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Court of AppealPartially AllowedCivil Appeal No. 15 of 2017· [2017] KECA 157 (KLR)

Grace Njeri Mbugua v Hannah Wanjiku Thong'ote [2017] KECA 157 (KLR)

Court of Appeal of Kenya
24 November 2017
GKG. B. M. KariukiFSF. SichaleSKS. ole Kantai
2,394 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled an oral will invalid because a second witness denied witnessing it, so the estate must be shared under intestacy rules.

What this practically means

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Executive summary

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The Court of Appeal (G.B.M. Kariuki, F. Sichale and S. ole Kantai, JJ.A.) allowed a first appeal against the judgment of W. Musyoka, J. in High Court Succession Cause No. 2519 of 1998, delivered on 25th November 2016, in which the learned Judge had confirmed a grant and ordered distribution of the estate of Evanson Mbugua Thong'ote according to an alleged oral will made on 1st February 1997, encapsulated in an unexecuted document prepared by an advocate. The appellant, the second widow, contended that no valid oral will existed and that the deceased died intestate, so the Law of Succession Act governed distribution. The Act permits an oral will only if made before two or more competent witnesses and if the testator dies within three months. The two alleged witnesses were the advocate and Samuel Kairigo Wakahia. The Court found that a letter dated 2nd May 2000, signed by Wakahia before the District Officer, Kikuyu, disclaimed any knowledge of or witness status to the will, and that although the letter was produced as Exhibit No. 1 before the trial Judge, he failed to refer to or deal with it and simply took Wakahia's presence as proved. Holding that the unrebutted letter meant there was no conclusive evidence of two competent witnesses, the Court allowed the appeal, set aside the High Court judgment, declared the deceased to have died intestate, and remitted the matter to the High Court for fresh hearing, with each party bearing its own costs.

Key legal issues

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01

Validity of an oral will under Section 9(1) of the Law of Succession Act

Holding

The alleged oral will of 1st February 1997 was invalid because the requirement of two competent witnesses was not conclusively established; one of the two named witnesses, Samuel Kairigo Wakahia, disclaimed in a letter of 2nd May 2000 that he witnessed any will, and that letter was never rebutted.

Reasoning

The Court of Appeal, on a first appeal, re-evaluated the evidence and found that the trial Judge failed to deal with the letter of the second witness, which raised doubt whether he was present at the making of the oral will. Since the letter was unrebutted and the witness was not called to testify, the evidential burden of proving two competent witnesses on a balance of probabilities was not discharged. The deceased therefore died intestate.

p. 5
02

Duty of a first appellate court to re-evaluate evidence

Holding

As a first appellate court, the Court of Appeal is enjoined to re-evaluate the evidence and reach its own conclusions while bearing in mind that the trial Judge had the advantage of assessing witness demeanor.

Reasoning

The Court restated the classic duty of a first appellate court and applied it by independently examining the record, including the letter marked Exhibit No. 1, which the trial Judge had ignored despite allowing it to be produced. That failure of evaluation was the error that justified setting aside the judgment below.

p. 3
03

Conflict in evidence of witnesses to an oral will

Holding

Under Section 10 of the Law of Succession Act, where there is conflict in the evidence of witnesses as to what the deceased said in making an oral will, the oral will is not valid except so far as its contents are proved by a competent independent witness.

Reasoning

The Court quoted Sections 8, 9 and 10 of the Act, which governed the estate since the deceased died on 8th April 1997 after commencement of the Act. The letter disclaiming witness status created a conflict that the trial Judge failed to resolve, so the oral will could not be upheld on the disputed testimony of the advocate witness alone.

p. 3

Legal principles established

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  • An oral will is not valid unless it is made before two or more competent witnesses and the testator dies within three months of making it; where evidence leaves doubt whether a second competent witness was present, the oral will fails and intestate succession under the Law of Succession Act applies.
  • Where the testimony of witnesses to an alleged oral will is contradicted by unrebuted evidence and the dispute is not resolved, there is no conclusive proof of the required witnesses and the will cannot stand.

Court orders

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  1. 1.Appeal allowed
  2. 2.Judgment of the High Court (W. Musyoka, J.) delivered on 25th November 2016 in Succession Cause No. 2519 of 1998 set aside
  3. 3.Heirs to the estate of the deceased to be determined on the basis that the deceased died intestate
  4. 4.The matter to be heard again in the High Court
  5. 5.Each party to bear its own costs

Authorities

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Legislation

  • Law of Succession ActSection 2(1)
  • Law of Succession ActSection 5(1)
  • Law of Succession ActSection 8
  • Law of Succession ActSection 9(1)
  • Law of Succession ActSection 10
  • Law of Succession ActSections 18 and 19
On appeal from
High Court of Kenya at Nairobi (Milimani)
Succession Cause No. 2519 of 1998
Jurisdiction invoked
First appeal to the Court of Appeal under the Law of Succession Act regime / Court of Appeal appellate jurisdiction (no specific constitutional or statutory provision quoted in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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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, "Grace Njeri Mbugua v Hannah Wanjiku Thong'ote [2017] KECA 157 (KLR)", Case Analysis (2017). Civil Appeal No. 15 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/157/eng@2017-11-24

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