Samuel Nduati Mwaura v Paul Mwangi Ndombi

injunction from interfering , alienating,disposing,wasting,transferring,leasing or possessing and occupying land reference loc 2/Mairi/40 or its resultant parcels. 5. 3. That the Grant of Probate (or letters of Administration) issued to Paul Mwangi Ndombi made on the 8th August and confirmed on 28th January 2000 be revoked(or annulled) 4. That the costs of this Application be provided for. The application is premised on the grounds; 1. That dependants and beneficiaries of the estate of deceased were not a party to the Petition for letters of administration or probate. 2. That the current administrator misrepresented himself to the court as a beneficiary. 3. That the current administrator has been alienating,wasting the estate of the deceased by appropriating the entire estate to himself and to his proxies to the exclusion of the beneficiaries. 4. The administrator acquired grant of probate fraudulently. 6. The application was supported by a supporting affidavit sworn on even dated by Mr. Mwangi Wahome, Advocate of the Objector. The application is also supported by an affidavit sworn by Samuel Nduati Mwaura (Objector) on 27th August 2012. In his supporting affidavit the objector reiterated the grounds of the application. The objector briefly deponed that the Deceased left other dependants and beneficiaries whom the petitioner did not disclose in the Petition for grant of probate. The objector deponed that the Will dated 8th August 1996 annexed to the Petition is a forgery. The objector deponed the deceased at the time of his death was aged 82 years old, sick and senile and was under care of objector’s mother. It is objector’s contention that deceased was not in a position to comprehend and/ or understand anything including preparing a Will. 7. The Objector deponed further that the alleged Will was made on 8th August 1996 and the deceased died on 19th August 1996, barely 10 days after making of the Will. The objector deponed this raises serious questions of its authenticity. The objector deponed that there is no way the Deceased would have named the Petitioner as the executor and overlooked all his sons and other family members. The objector deponed that the Will is not the true and the original Will and or true record of the last testament of the Deceased. It was objector’s contention that the Grant of probate was obtained by way of fraud and the same should be revoked and annulled. 8. In response to the summons for revocation, the executor Paul Mwangi Ndumbi filed his replying affidavit dated 24th August 2015 opposing the application for revocation. The respondent deponed that the deceased left a will dated 8th August 1996 wherein he bequeathed all his properties among which was Parcel No. LOC2/MAIRI/40 as per his wishes. The executor averred the written will is a valid will which meets all the legal requirements and it was duly executed by the deceased and properly attested by competent witnesses. 9. The executor deponed the objector and other beneficiaries were always aware of the existence of the will as he informed them on the day of the burial. He stated all the deceased's beneficiaries were also bequeathed property under the will. It was the executor’s contention that the beneficiaries refused to participate in the succession proceedings and only to turn up many years later seeking for revocation of the grant. The executor deponed the application by the protestor is frivolous and unsupported with credible evidence and ought to be dismissed. 10. The summons for revocation of grant was canvassed by way of Viva voce evidence. PW1 was Samuel Nduati Mwaura who testified that he is a resident of Kayole. He testified the deceased Mwaura Munogu https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17814/eng@2025-10-03 2

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was his father. PW1 testified he is lastborn and they are 15 children . PW1 testified he filed the application for revocation of the grant dated 27/8/2012 and wish to adopt the evidence in his affidavit sworn on 27/8/2012 together with the annexures in support of his application as his evidence in chief. 11. Pw1 testified further that before his father died he had lost memory for 10 years. It was PW1 testimony that when they left mater after tribal clashes, they went to Murang'a ancestral home, his father fell sick and he could not recognize anybody. It was PW1 testimony that his father was bedridden and he was totally senile.PW1 testified further he wants the court to revoke the grant. His father died 8 days after the alleged Will was signed. The Will is dated 8/8/1996 and he died on 19/8/1996. Pw1 testified deceased did not sign the Will. It was Pw1 further testimony that when his father died they buried him on 27/8/1996 and they saw an agreement purporting to divide their land. The agreement showed that his father was to get ½ share and his uncle Ndubi was to get half share. The witness was Paul Mwangi a son to his uncle Ndubi. He testified Paul Mwangi is the administrator of the estate and the administrator did not talk of any existing Will on the date of burial. PW1 testified the purported Will was sharing out only one property LOC 2/Mairi/40. PW1 testified further deceased had more properties. It was further testimony of Pw1 that the Will does not have all beneficiaries and there were two Wills. The Will dated 8/8/1996 sharing out the same property. PW1 testified the ID number for his father indicated in the Will marked by the executor is 204XXXX/64. The other ID No. is 204XXXX according to the second Will which they have attached to their application. PW1 testified that the signatures of the witnesses in the two Wills are not the same. One Will has three signatures and the other one which is attached by the executor to his replying affidavit has two only signatures. PW1 testified Paragraph 4 of the two Wills are different. 12. During Cross Examination by Ngugi Kariuki PW1 confirmed that they are 15 children in his father's family. PW1 confirmed that his father was sick by the time the Will was purported to have been signed and he was too and paralyzed. Pw1 confirmed deceased could not communicate and he died of sickness. PW1 confirmed that the death certificate shows that he died of old age and deceased was taken to Kigumo Hospital for treatment. PW1 confirmed that he does not have any medical records. 13. PW1 confirmed that he saw the Will filed by Paul Mwangi, he was given by the Chief and he has attached it in his list of documents. PW1 confirmed that he did not file any Will and he is challenging the Will attached to his list. Pw1 testified he can see and the Will is attached to the replying affidavit of Paul Mwangi. 14. PW 1 confirmed that he has seen the Will attached to the replying affidavit by Paul Mwangi. It is different from the one he has listed as an exhibit. PW1 testified that according to Paul Mwangi's Will attached to the replying affidavit PW1’s mother was given land. PW1 confirmed that his father did not know how to write and sign and the signature in the Will was not that of his father. PW1 confirmed that he testified earlier that his father knew how to read and write but that is not his statement. He confirmed that he did not tell the advocate that his father knew how to read. 15. PW1 confirmed he know the witnesses appearing in Will. One was Njoroge Kiragu who is deceased and he denied signing the Will but he has not stated so in his affidavit.PW1 confirmed that Evans Joseph Chege Kibasho did not sign the Will and the will did not share out the rest of the properties. 16. PW1 confirmed that he was staying in Nakuru before his father died and he is not aware of a pending case in respect of their land and his father did not tell me. PW1 confirmed that the agreement for division of the land was done on the same day his father was buried. 17. Upon re-examination PW1 clarified that they were to give their uncle 6 acres and not 12 acres. PW1 clarified he was given the two Wills by the area Chief. He clarified further It was Paul who gave him the two Wills. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17814/eng@2025-10-03 3

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18. PW2 was Waithira Mwaura. She testified deceased was her husband. He had two wives. Herself and Lilian. They had 8 children with Lilian. She had 8 children. She adopted her statement as evidence in chief. PW2 testified her husband did not leave a Will. He subdivided his property amongst his children. He was senile and sickly during his old days. 19. During cross examination by Mr.Ngugi PW2 confirmed that she cannot tell the actual age of her husband when he died. Her husband had lost his memory. He was treated at Kisumu. He could not talk when he was sick. He last spoke when he indicated that he wanted his property to be shared amongst his wives. That was 1992. She confirmed she was with her husband by the time he died. She used to stay with deceased and she was not working. PW2 confirmed that she knows Numbi Mwangi. She does not know of any case filed against father. She confirmed that some two people came to take the thump print of his husband. They were Paul Mwangi, his father and another person she did not know. His husband died in Paul Mwangi's house. PW2 confirmed that It was Paul and Wangare who took him to mortuary. It was Paul who collected the burial permit. They were not friends but Paul was a nephew to her husband. 20. The land belonged to the father of the deceased. She confirmed her husband never sold any piece of land. PW2 confirmed that her husband and Numbi his brother had subdivided the land. She confirmed that the land in dispute at Rwahiti and that is where her husband was buried. It is 24 acres. PW2 confirmed her husband said the land was for the two wives equally. 21. Upon re-examination PW2 clarified that before the deceased died he was staying with him and her husband did not have any written Will. 22. PW3 was Alexander Ndumbi Mwenje. He informed court deceased was his uncle. He adopted his witness statement dated 23/5/2016 as his evidence. He testified that the agreement dated 27/8/1996 is in his handwriting. He testified that the agreement (PExh.2) is a true copy of what transpired. 23. During cross examination by Mr. Ngugi PW3 confirmed the agreement was written on 27/8/1996. He confirmed It was after the burial of his uncle they did the agreement on the burial day because the dependants of the deceased were from various parts of the country hence difficult to gather them thereafter. PW3 confirmed his uncle was senile and confused. He could not recognize even his children. He confirmed even him they could talk but it was hard to recognize him and he saw the deceased one year before he died. He fell sick for long for about 8- 10 years. He cannot remember him being taken to hospital. 24. Pw3 confirmed that he was aware that there was a court case relating to the land and he heard about it from people. The case was filed by a stranger claiming the land. He sued Mwaura Munogu and his brother Numbi. It was some succession cause. PW3 confirmed Mwaura and Numbi had agreed to share the land. Mwaura was to give 6 acres to his brother Numbi. The land to be shared was 36 acres. Mwaura had been given 12 acres and he was to be added 6 acres to make it 18 acres 25. During re-examination the PW3 clarified that they did the agreement in the presence of Paul. He was a witness. He did not mention anything about the Will. 26. DW1 was Executor Paul Mwangi Ndumbi. He testified his father and deceased were brother. He told court he filed replying affidavit sworn on 24.8.2015 and he wish to rely as his evidence. DW1 testified he is in possession of the title deed of the subject property. The title is Loc.2/Mailu/40 and he also had a death certificate. He kept the two but someone took it without his knowledge. Dw1 testified he can see the Will dated 8/8/1996 made by the deceased and attached to his affidavit. He testified that he was given the Will by his advocate one Mwicigi Kinuthia and he explained to the family about the Will. He disclosed to all of them during the burial of Mzee. DW1 testified he is not aware of any other Will other https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17814/eng@2025-10-03 4

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than the one he had. He did subdivide the land as claimed. DW1 told court he knows one Mwangi Numbi who at one time sued the deceased claiming 12½ acres from the land in question. The land was 24.1 acres. Mwangi Numbi filed a suit at Murang' a Law Courts. It was case No. 106/92. DW1 told court he has filed the judgment which is document marked PMN4 at Page 117 - 119 of his bundle of documents. The court held that the property belonged to the deceased. Mwangi Ndumbi appealed vide Case 112/2000. He has attached the appeal judgment at Page 38 - 44 of his bundle of documents. The court directed order that he be given 12.1 acres. That was the year 2004. Dw1 told court he filed an appeal to court of appeal which was Civil Appeal No. 89/08. The judgment is attached at Page 126 - 134 of my bundle of documents. The Court of Appeal directed that the land be returned to him and that is how he got the land back . DW1 testified that he was the one who was paying the advocates. His children were not interested. 27. DW 1 testified that the deceased was staying with him at Murang'a and not Njoro. and he does not know anything about the two Wills attached by the objectors to their application. DW1 told court that during the burial of the deceased his children forcefully demanded for an agreement to be signed on how to divide the estate. 28. They forced him to sign the agreements dated 27/8/1996. It was DW1 testimony that he told them that Mzee had left a Will. He filed a Kenya gazette notice and he is praying that the objection be dismissed with costs. He testified Mzee was in sound mind and when he died he just collapsed. He was not even sick. The death certificate says he died of old age. 29. During cross examination DW1 confirmed that deceased was brother to his father. He confirmed that when the deceased died, he knew his children but he cannot remember how many they were and deceased had two wives. DW1 confirmed Deceased had only one shamba. He did not know of any other land owned by the deceased. He confirmed that Mwaura bought the Murang'a shamba with his brother and Mwaura died ahead of his father. DW1 confirmed that Mwaura was staying in Murang'a when he died and he was not sick even for one day. 30. DW1 confirmed that he cannot remember what happened on 8/8/1996. He cannot remember taking him anyway and he does not remember of any function held on that day. DW1 confirmed that he can see a Will dated 8/8/1996 at Page 4 of his replying affidavit and he was not shown the original copy. He confirmed that what he can see filed in court is a Will dated 12/5/1997. He does not recognize it. He did not file it. It is different from the one he attached to his replying affidavit. 31. DW1 confirmed that he does not know whereabout of the original of Will he attached to his replying affidavit and he does not recognize the Will filed in court. DW1 confirmed he does not remember the date he got the document. He took the Will to Murang'a. They did an agreement during the burial of Mzee Mwaura on how to share the land and he did not produce the Will that time. The grant was issued and he does not know how the Will was drawn. 32. During re-examination DW1 clarified he only know of the Will attached to his affidavit and he has shared out the land as per the Will. He could not pay for the other beneficiaries. If they pay, they will get their 10 acres. That is according to the Will. DW1 clarified that he was given the Will by Mwicigi Kinuthia and he did not see the original Will. He clarified that he is the one who took over Mwaura's case against Ndubi. He was so sickly and aged 86 years old. 33. He could not move around. 34. James Njuguna Kinyanjui testified that he is an advocate and his practice is No. 105/12694/2016. He works in the firm of Mwicigi Kinuthia & Co. Advocates as associate and manager of the firm. He joined the firm in 2019. It was his testimony that Mr.Mwicigi is undergoing treatment and is at home. Mr. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17814/eng@2025-10-03 5

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Kinyanjui testified that the memorandum of understanding dated 21/8/2019 is to run the firm on his behalf. It was his testimony that he has attached the Will dated 8/8/1996. He testified that In the office there is a file containing clients' Will. He checked the file under the names of the testator and retrieved the Will by Mwaura Munogu. He produced a copy and he has filed it in court as exhibit Exh. 1 and 2. 35. During cross examination by Mr.Ambani he confirmed that the memorandum was for 3 years upto 21/8/2022 and they reviewed it orally. He confirmed that last time he spoke to Mwicigi Advocate in October 2023 and they never talked about this matter and he did not tell him about testifying in this matter. 36. Mr. Kinyanjui confirmed that when Mr. Mwicigi is not in a position to give evidence. He became unwell in 2020. The Will was in a folder with the other Wills. The one he has presented is a copy. He did not find out where original Will was and he does not know if there is a variation between Will he has produced and the original in court. 37. During re-examination he clarified that Mr. Mwicigi is unwell. The Will he has produced was the one he found in the folder and it is the only Will he found for testator. He clarified that he did not participate in the making of the Will. 38. At the close of the evidence by the parties, learned counsels for the parties duly filed and exchanged submissions. From the court record the objector did not file written submissions. The Executor filed written submissions dated 11th November 2024. I have carefully considered the submissions and the executor reiterated averments in his affidavits and evidence adduced in court and I do not need to reproduce the same. 39. I have considered the application herein, the responses thereto and rival submissions by both counsels. I find the main issue that arises for determination is whether the Grant of Probate (or letters of Administration) issued to Paul Mwangi Ndombi made on the 8th August and confirmed on 28th January 2000 should be revoked(or annulled). 40. The objector herein filed this instant application dated 27th August 2012 seeking orders that the Grant of Probate (or letters of Administration) issued to Paul Mwangi Ndombi made on the 8th August and confirmed on 28th January 2000 be revoked(or annulled). 41 The power to revoke a grant is a discretionary power that must be exercised judiciously and only on sound grounds. It is not discretion to be exercised whimsically or capriciously. There must be evidence of wrong doing for the court to invoke section 76 of the Law of Succession Act and order for revocation of or annulment of a grant. Besides, when a court is called upon to exercise this discretion, it must consider interests of all beneficiaries entitled to the deceased’s estate and ensure that the action taken will be in the interest of justice. Generally, the trial court has jurisdiction to revoke a grant if the conditions under section 76 are satisfied. 42. Section 76 of the Law of Succession Act provides as follows: 76. Revocation or annulment of grant. A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any Interested Party or of its own motion— (a) that the proceedings to obtain the grant were defective in substance; (b) that the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case; https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17814/eng@2025-10-03 6

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(c) that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently; (d) that the person to whom the grant was made has failed, after due notice and without reasonable cause either— (e) (i) to apply for confirmation of the grant within one year from the date thereof, or such longer period as the court order or allow; or (ii) to proceed diligently with the administration of the estate; or (iii) to produce to the court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraphs (e) and (g) of section 83 or has produced any such inventory or account which is false in any material particular; or that the grant has become useless and inoperative through subsequent circumstances.” 43. From the above grounds it is clear that the applicant application is pegged on section 76 (b) of the Law of Succession Act. The Applicant’s application was grounded on grounds that the applicant and beneficiaries of the estate of deceased were not a party to the Petition for letters of administration or probate. That the current administrator misrepresented himself to the court as a beneficiary. The applicant stated that the dependants and beneficiaries were not party to the issuance of the said grant and believe that the same was obtained by way of fraud and use of a forged Will and concealment of the material facts. The objector stated that the Will dated 8th August 1996 annexed to the Petition is a forgery. 44. From the court record following the demise of deceased, the Petitioner Paul Mwangi Ndombi who is respondent herein filed a Petition for Grant of probate on 12th March 1997 with an annexed Will dated 8th August 1996 as an executor of the Will. The Grant of probate was issued to the Petition on 8th August 1997 and confirmed on 28th January 2000. The objector has now filed a summon of revocation of Grant issued on the grounds that the grant was obtained by fraudulently and or concealment of material fact and. The objector stated that the Will was a forgery. 45. This court will first determine the validity of the subject Will dated 8th August 1996 on whether the will was forgery. The first issue for consideration at this stage is whether the deceased left a will and if he did, is the will valid? The objectors have questioned the validity of the will allegedly made by the deceased on 8th August 1996. 46. Section 11 of the Law of Succession Act provides for what constitutes a valid will. It provides as follows: No written will shall be valid unless: (a) The testator has signed or affixed his mark to the will, or it has been signed by some other person in the presence and by the direction of the testator; (b) the signature or mark of the testator, or the signature of the person signing for him, is so placed that it shall appear that it was intended thereby to give effect to the writing as a will; (c) the will is attested by two or more competent witnesses, each of whom must have seen the testator sign or affix his mark to the will, or have seen some other https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17814/eng@2025-10-03 7

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person sign the will, in the presence and by the direction of the testator, or have received from the testator a personal acknowledgement of his signature or mark, or of the signature of that other person; and each of the witnesses must sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.” 47. In this case, the will was allegedly prepared by the Firm of Mwicigi Kinuthia & Co.Advocates, signed by the deceased in the presence of two witnesses. There is a signature alleged to be the deceased’s Signature. On the face of it, it looks like a proper will. The court has to consider the allegations by the objector. 48. The objector has alleged that the deceased did not leave behind any will and the subject Will is a forgery. The objector stated that the signature does not belong to the deceased. The objector stated that the deceased while alive used to write and sign his documents and he did not thumb print as alleged in the Will. It is the objectors’ case that the will was made on 8.8.1996 and the deceased died on 19th August 1996 barely 10 days after making the Will. It is objectors’ case that this raises the serious questions of its authenticity. 49. The law is clear, that he who alleges must prove. Section 109 of the Evidence Act places the burden of proof on the objector to prove the alleged forgery. Section 109 of the Evidence Act states: 50. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie in a particular person.” In Re: Estate of Samuel Ngugi Mbugua (deceased) 2017 eKLR, the court said: The allegation that the said signature was not that of the deceased amounts to a claim that the signature was forged or that fraud was exercised in the procurement of the alleged will. That is to say that someone other than the deceased had affixed that mark on the will with the intent of passing the same as the signature of the deceased. Forgery is a criminal offence. The applicant is in fact imputing criminal conduct on either the person propounding the will or those who were involved in the operation that is purported to have been its execution. The burden of proving forgery lies with the person alleging it. In Elizabeth Kamene Ndolo vs George Matata Ndolo Nairobi Court of Appeal Civil Appeal Number 128 of 1995 it was stated that the charge of forgery or fraud is a serious one, and the standard of proof required of the alleger is more than that required in ordinary Civil cases.” 51. The question that needs to be considered is whether somebody else affixed the mark (signature) on the will with intent of passing as the deceased’s signature. 52. The objector as PW1 testified in court that his father died 8 days after the alleged Will was signed. The Will is dated 8.8.1996 and he died on 19.8.1996. He did not sign the Will. The objector testified they buried the deceased on 27.8.1996 and they saw an agreement purporting to divide their land. He confirmed the agreement shared ½ subject land to deceased and ½ share to his uncle Ndubi and the agreement is attached to his list of documents. The objector testified that Paul Mwangi did not talk of any existing Will. The objector testified that there were two Wills. Will dated 8.8.1996 is sharing out the same property. He testified that the ID Number for his father indicated in the Will marked by executor is 204XXXX/64 and other ID is 204XXXX according to second Will attached to their application. The signature on the two Wills are not the same. 53. During cross examination the objector confirmed to court that his father was sick by the time the Will was purported to have been signed. He was too old and paralyzed. He could not and was not able to https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17814/eng@2025-10-03 8

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communicate. He died of sickness. The death certificate shows he died of old age. He confirmed to court that he does not have any medical records. He confirmed that he is challenging the Will attached to his list of documents. He confirmed that he has seen Will attached to replying affidavit by Paul Mwangi. It is different from the one listed as an exhibit. He confirmed that in the Will attached by Paul Mwangi his mother was given land. 54. PW1 also confirmed during his testimony that he knew the witnesses appearing on the Will, One Njoroge Kiragu he is since deceased and he denied signing the Will. He testified that even Joseph Chege Kibasho did not sign the Will and he did not ask him about the Will. 55. PW2 Waithira Mwaura testified that the deceased was her husband and he had lost his memory. He was treated at Kisumu and he could talk when he was sick. He last spoke in 1992. She confirmed that her husband died in Paul Mwangi’s house. 56. PW3 Alexander Ndumbi Mwenje testified deceased was his uncle. During cross examination he confirmed that deceased was senile and confused. He could not recognize even his children and him. He fell sick for long for about 8 – 10 years. He cannot remember him being taken to hospital. 57. During hearing of the Petitioner’s case, Paul Mwangi as DW1 informed this court that deceased was staying in Murang’a and he was not sick even for one day. He cannot remember what happened on 8.8.1996. It was Petitioner’s testimony that he can see Will dated 8.8.1996 attached to his affidavit. He confirmed to court that he was not shown the original copy. He testified that what he can see in court is a Will dated 12.5.1997 and he does not recognize it and it is different from one attached to his affidavit. He confirmed to court that the deceased left a Will. He confirmed that he is the one who filed this case in court. He does not recognize the Will. He confirmed he does not know where the original of the Will attached to his replying affidavit is. He confirmed that he does not recognize the Will filed in court. The deceased died on 19.8.1996 and he picked him from his house to the Mortuary. He also confirmed that he took the Will to Muranga and they did an agreement on how to share the land. He did not produce the Will at that time. He confirmed he does not remember when the grant was confirmed and he has not given Lilian Mwaura her portion. The Petitioner also clarified to court that he was given the Will by Mwicigi Kinuthia and he did not see the original Will. 58. It is a fact that the petitioner herein filed a Petition with Will annexed as an executor. The Will is dated 8.8.1996. The Petitioner during his testimony in court testified that he could not recognize the Will dated 8.8.1996. The Petitioner in his replying affidavit dated 24th August 2015 filed in court has attached a Will dated 8.8.1996 in support of his case as the last Will of the Deceased. 59. This court also notes that the Petitioner while filing his Petition annexed to the Petition a Will dated 8.8.1996. The Petitioner has also in his replying affidavit dated 24th August 2015 filed in court attached a Will dated 8.8.1996 in support of his case as the last Will of the Deceased. The court has analyzed the two Wills,one attached to the Petition and one attached to the replying affidavit and this court notes that the two Will are different in terms of paragraph 4. The Petitioner herein during his testimony testified that he does not have original Will and he was only issued with a copy by firm of his Advocate. 60. The Petitioner as DW1 during his testimony confirmed that he does not know whereabout of the original of Will he has attached to his replying affidavit and he does not recognize the Will filed in court . DW1 confirmed he does not remember the date he got the document. 61. The Petitioner’s Advocate the Firm of Mwicigi Kinuthia & Co.Advocates testified through Mr. Kinyanjui through confirmed that Mr. Mwicigi is not in a position to give evidence and he became unwell in 2020. He testified on his behalf and confirmed that The Will was in a folder with the other https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17814/eng@2025-10-03 9

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Wills. The one he has presented is a copy. He did not find out where original Will was and he does not know if there is a variation between Will he has produced and the original in court. 62. From the Petitioner’s own testimony, I note that the Petitioner could not recognize or properly identify the Will he used to file the Petition indeed he disowned the Will dated 8.8.1996 been challenged in court by the objector which is same Will he relied on in filing his Petition. Also, the Petition in response to this summons of revocation of Grant attached to his replying affidavit a Will dated 8.8.1996 but the said Will paragraph 4 is different from Paragraph 4 of the Will attached to his Petition that is being challenged by objector. This raises suspicious as to whether the deceased left behind a Will dated 8.8.1996. The Petitioner also failed to produced the Original Will dated 8. 8.1996 to court. 63. In view of the inconsistences of the alleged Will and absence of the Advocate who is alleged to have drawn the Will nor witnesses who witnessed the same. I find evidence of existence of a Will unreliable. I therefore do find that the deceased did not leave a valid will and therefore died intestate. The grant of Probate issued on 8th August,1997 and confirmed on 28th January 200 is hereby revoked. The estate will be distributed among the beneficiaries as an intestate succession. DATED AND DELIVERED AT NAIROBI THIS 3RD DAY OF OCTOBER, 2025. ……………….. S. N. RIECHI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17814/eng@2025-10-03 10

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