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High CourtDismissedSuccession Cause (petition for probate of written will filed 11/3/2011; objections dated 10th May 2011, 18.5.2011 and application dated 6/6/2012)

In the Matter of the Estate of Samson Kipketer Chemirmir (Deceased) - Probate and Administration (Validity of Will)

High Court of Kenya
20 February 2019
Njoki Susanna NdunguA. K. NDUNG'U
5,106 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A will is invalid if it fails to meet the strict legal requirements for witnessing, regardless of how genuine the signature appears.

What this practically means

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Executive summary

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Samson Kipketer Chemirmir died on 27/11/2010. Four petitioners sought probate of a written will dated 20/4/2010, prepared by Nathaniel Githua Advocate of Gresswell Mann and Dodd Advocates and witnessed by him and his secretary Ann Njoki Mathai. Multiple objectors challenged the will on grounds of lack of testamentary capacity, forgery of the signature, fraud, coercion, inadequate provision and non-disclosure of assets. The court, on directions given on 19/4/2012, first determined validity by viva voce evidence. The objectors called Chief Inspector Geoffrey Chania, a forensic document examiner, who compared the will signature with known signatures in affidavits of 1975 and 1985 and concluded the will was a forgery, and Judy Chemirmir, who knew the deceased's signature. The petitioners called the drafting advocate, the secretary, a family friend and the widow. On capacity, the court held the burden lay on the objectors under Section 5(4) of the Law of Succession Act and Section 107(1) of the Evidence Act; no medical or sufficient lay evidence of incapacity was adduced, so capacity was established. On the signature, the court held that uncorroborated expert opinion was outweighed on a balance of probabilities by the advocate's uncontroverted eyewitness testimony. However, on attestation, the secretary admitted she entered the office only after the deceased and the advocate had signed and received no personal acknowledgement, so she was not a competent witness under Section 11(c). The will was therefore attested by only one witness, flouting the statutory requirement, and was declared invalid. Each party was ordered to bear its own costs.

Key legal issues

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01

Testamentary capacity

Holding

The objectors failed to discharge the burden of proving the deceased lacked capacity; evidence showed he discussed and made the will with his advocate.

Reasoning

Section 5(4) of the Law of Succession Act and Section 107(1) of the Evidence Act place the burden of proving incapacity on the objector. No medical evidence was adduced, nor oral or circumstantial evidence to the balance of probabilities. The deceased presented himself at the advocate's office, was guided on documents, and made the will. Re Estate of Gatuthu Njuguna principles were applied.

p. 4
02

Weight of expert (document examiner) evidence against eyewitness evidence

Holding

The uncorroborated expert opinion that the signature was forged was outweighed by the evidence of the advocate who prepared the will and saw the deceased sign it.

Reasoning

Following Elizabeth Kamene Ndolo, Stephen Kinini Wang'ondu, Kimatu Mbuvi and Vaghella, expert evidence does not trump other evidence and must be weighed in the context of all evidence. The advocate's demeanour, long standing, lack of interest and uncontroverted testimony persuaded the court on a balance of probabilities that the deceased signed the will.

p. 5
03

Formal validity - attestation under Section 11(c)

Holding

The second witness, Ann Njoki Mathai, did not see the testator sign and received no personal acknowledgement; the will was effectively witnessed by one person only and is invalid.

Reasoning

Section 11(c) requires each of two or more competent witnesses to have seen the testator sign, seen another sign by the testator's direction, or received personal acknowledgement of the signature. Ann admitted she entered after the deceased and Mr. Githua had signed and gave no acknowledgement. The statutory requirement cannot be ignored.

p. 7

Legal principles established

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  • A written will is invalid unless attested by two or more competent witnesses, each of whom saw the testator sign or received personal acknowledgement of the signature.
  • The burden of proving that a testator was not of sound mind lies on the person who alleges incapacity.
  • Expert evidence is not conclusive; the court must weigh it against all other evidence and decide whether to believe it.

Court orders

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  1. 1.A finding that the will dated 20th day of April, 2010 is invalid.
  2. 2.Each party to bear its own costs.
Jurisdiction invoked
Probate and administration jurisdiction under the Law of Succession Act (Cap 160) - petition for grant of probate of a written will

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "In the Matter of the Estate of Samson Kipketer Chemirmir (Deceased) - Probate and Administration (Validity of Will)", Case Analysis (2019). Succession Cause (petition for probate of written will filed 11/3/2011; objections dated 10th May 2011, 18.5.2011 and application dated 6/6/2012). Source:

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