Kiran Babu Oza v Sejal Malde & 1 other

7. The applicant, through her counsel, filed written submissions dated 24th December 2024, vide which it was submitted that she had made out a case for the revocation of the grant. Reliance was placed on Section 76 of the Law of Succession Act. It was urged that there was fraud and concealment of material facts. 8. It was submitted that the residuary clause of the will referred to property that was unsold at the time of the will, not property that at that time had not been acquired. Apartment No. 3A was therefore not contemplated. 9. The counsel for the applicant also relied on the case of re Estate of Philip Nthenge Mukonyo (2018)eKLR to submit that property acquired after the will had been made was not subject to the will. 10. The Respondents also filed submissions dated 16th January 2025. It was submitted that the applicant was not a dependant within the meaning of Section 29 of the Law of Succession Act. 11. The Respondents also submitted that the applicant had not made a case for revocation of a grant. They relied on Section 76 of the Law of Succession Act. 12. Reliance was also placed on Rule 28 to the First Schedule of the Law of Succession Act in support of the submissions that the residuary property included property acquired after a will. 13. The issue for determination is whether the grant of probate of the written will of the deceased dated 11th January 2024 should be revoked. 14. The Grounds for revocation or annulment of the grant of letters of administration or probate of a written will are set out in Section 76 of the Law of Succession. The said provision states as follows:“ 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; (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— (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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19453/eng@2025-02-28 2

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(e) That the grant has become useless and inoperative through subsequent circumstances.” 15. The main ground cited by the applicant for seeking revocation of the grant herein is that confirmation of the grant was obtained through concealment of material facts, namely that the respondents did not disclose that property known as Apartment No 3A, 3rd Floor, situate on Mombasa/Block XXVI/151 was acquired after the written will dated 18th April 2012 was executed and that it could only be disposed of under intestacy. 16. In the case of Jamleck Maina Njoroge v Mary Wanjiru Mwangi (2015)eKLR, the court discussed circumstances when a grant can be revoked. The court observed that: “ 11. 17. The court is alive to the position that the power to revoke a grant is also discretionary and must be exercised in accordance with the law. In the case of Albert Imbuga Kisigwa v Recho Kavai Kisigwa, Succession Cause No.158 of 2000, the Court stated as follows:“ (13) 18. The circumstances that can lead to the revocation of a grant have been set out in Section 76 of the Law of Succession Act. For a grant to be revoked either on the application of an interested party or on the court’s own motion there must be evidence that the proceedings to obtain the grant were defective in substance, or that the grant was obtained fraudulently by making of false statement, or by concealment of something material to the case, or that the grant was obtained by means of untrue allegations of facts essential in point of law.” 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 wrongdoing for the court to invoke section 76 and order to revoke or annul a grant. And when a court is called upon to exercise this discretion, it must take into account the interests of all beneficiaries entitled to the deceased’s estate and ensure that the action taken will be for the interest of justice.” Regarding the legal capacity to make wills, Section 5 of the Law of Succession Act provides that:“ 1. Subject to the provisions of this Part and Part III, every person who is of sound mind and not a minor may dispose of all or any of his free property by will and may thereby make any dispositions by reference to any secular or religious law he chooses. 2. … 3. Any person making or purporting to make a will shall be deemed to be of sound mind for the purpose of this section unless he is at the time of executing the will, in such a state of mind, whether arising from mental or physical illness, drunkenness, or from any other cause, as not to know what he is doing. 4. The burden of proof that a testator was, at the time he made any Will, not of sound mind, shall be upon the person who so alleges.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19453/eng@2025-02-28 3

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19. On the free will of the testator, Section 7 of the Law of Succession Act provides that a testator must exercise his free will in the distribution of his estate, and the absence of such free will invalidates a will. It provides that:7. 20. A will or any part of a will, the making of which has been caused by fraud or coercion, or by such importunity as takes away the free agency of the testator, or has been induced by mistake, is void. On the formality and validity of wills, Section 11 of the Law of Succession Act which sets out the formal validity of written wills as follows: No written will shall be valid unless- 21. (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 of 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 person sign the will, in the presence and by the direction of the testator, or have received from the testator a personal acknowledgment 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 Further, on the revocation of wills, Sections 17 and 18 of the Law of Succession Act for the revocation of a wills. It provides that: “ 17. A will may be revoked or altered by the maker of it at any time when he is competent to dispose of his free property by will. 18. 22. (1) Save as provided by section 19, no will or codicil, or any part thereof, shall be revoked otherwise than by another will or codicil declaring an intention to revoke it, or by the burning, tearing or otherwise destroying of the will with the intention of revoking it by the testator, or by some other person at his direction. (2) A written will shall not be revoked by an oral will.” I have perused the pleadings, evidence, as well as the submissions and authorities filed by the parties in support and opposition to their respective cases. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19453/eng@2025-02-28 4

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23. In my analysis, I do not doubt that the matters alleged by the applicant are matters of evidence. In my view, the applicant bears the burden of proving the allegations she has raised in her application. On this subject, Section 107 (1) of the Evidence Act, Cap 80 Laws of Kenya provides that: Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. 24. In reiterating the applicability of the Evidence Act on the burden of proof, in Anne Wambui Ndiritu –vs- Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, the Court of Appeal held that: “ As a general proposition under Section 107 (1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is, however, the evidentiary burden that is cast upon any party, the burden of proving any particular fact which he desires the court to believe in its existence, which is captured in Sections 109 and 112 of the Act.” 25. It follows that the initial burden of proof lies on the Applicants in this case, but the same may shift to the Respondent, depending on the circumstances of the case. It was held in Evans Nyakwana v Cleophas Bwana Ongaro [2015] eKLR , it was held that:“ As a general proposition, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of Section 107 (i) of the Evidence Act, Chapter 80 Laws of Kenya. Furthermore, the evidential burden… is cast upon any party, the burden of proving any particular fact which he desires the court to believe in its existence. That is captured in Sections 109 and 112 of the law that proof of that fact shall lie on any particular person…The appellant did not discharge that burden, and as Section 108 of the Evidence Act provides, the burden lies on that person who would fail if no evidence at all were given by either side.” 26. The question then is what amounts to proof on a balance of probabilities. Kimaru, J in William Kabogo Gitau v George Thuo & 2 Others [2010] 1 KLE 526 stated that: “ In ordinary civil cases, a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely than not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred.” 27. Similarly, Lord Nicholls of Birkenhead in Re H and Others (Minors) [1996] AC 563, 586 held that: “ The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the even was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriated in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability…..” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19453/eng@2025-02-28 5

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28. Furthermore in Palace Investment Ltd v Geoffrey Kariuki Mwenda & Another [2015] eKLR, the Court of Appeal held that: “ Denning J, in Miller –vs- Minister of Pensions [1947] 2 All ER 372 discussing the burden of proof had this to say;“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that a tribunal can say: we think it more probable than not, the burden is discharged, but if the probabilities are equal, it is not. This burden on a balance or preponderance of probabilities means a win, however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept where both parties…are equally (un) convincing, the party bearing the burden of proof will lose because the requisite standard will not have been attained.” 29. On my perusal of the will dated 18th April 2012, it is true that the will was written long before Apartment No. 3A, 3rd Floor, situated at Mombasa/Block XXVI/151 was purchased. It is also true that the executors in their affidavit in support of the Petition for Probate made no mention of when the property was acquired, although they did mention at paragraph 3, thus: “ The deceased was at the time of his death domiciled in and his last known place of residence was 3A, 3rd Floor, situate at Mombasa/Block XXVI/151 in Kizingo, Mombasa County.” 30. Is this an omission to warrant revocation of the will? As far as the wills are concerned, as was held in the case of Lita Violet Shepard v Agnes Nyambura Munga [2018] eKLR , where the Court of Appeal made the following pronouncement when faced with similar issues:…In our understanding, a Will is just a legal tool or device for determining the fate of a deceased person’s estate after his death. As with every instrument, the court must evaluate it in its natural environment, meaning that primarily the provisions of the law of succession were taken into consideration at the time it was made. It is when we place the Will in its proper context, that we will know how to ask the right questions and those questions will guide the answers we give in the event of a dispute. That is the starting point. Again to put the Will into a proper perspective, it is important to appreciate that the deceased had provided for the respondent during his lifetime and the legal wife after death. The sequence is a reflection of the natural environment of providing, for the heart (alleged customary wife) and mind (the legal wife) is the context and contours of what trial Judge was required to appreciate and determine. Unfortunately the maps and compass were not looked at by the trial court. The trial court was not required to look at the Will as a standalone piece of document without giving much or no attention to the circumstances of the whole dispute. The Will read together with the undisputed conduct of the deceased in first distributing portions of the property to the respondent, constitute a single project of harmonious and integral transaction, which provided for both sides of the coin – a reflection of what the deceased intended... 31. Therefore, I do not doubt in my mind that for all intents and purposes, this court’s task is to establish whether any parameters that would render the written will of the deceased herein invalid. This is a matter of evidence, and the applicants bear the burden to lead the evidence. 32. The concern of this court is to uphold the testamentary freedom of the testator if there are no vitiating factors. I find and hold that testamentary capacity is noble and must be respected unless sufficient https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19453/eng@2025-02-28 6

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evidence is led to impute one or more vitiating factors to the validity of the will known to the law. I am fortified by the decision of the court in In re Estate of Samuel Ngugi Mbugua (Deceased) [2018] eKLR, where the court stated as follows:“ In construing the contents of a will, the first principle is to discover the intention of the testatrix as clearly stated in the will as a whole. This was articulated by Lord Romer of the House of Lords in the case of Perrin v Morgan 1943 AC 399-420 where the court stated as follows: “ I take it to be a cardinal rule of construction that a will should be so construed as to give effect to the intention of the testator, such intention being gathered from the language of the will read in the light of the circumstances in which the will was made. To understand the language employed, the court is entitled to use a familiar expression, to sit in the testator’s armchair. When seated there, however, the court is not entitled to make a fresh will for the testator merely because it strongly suspects that the testator did not mean what he has plainly said.” 33. In addition, the court proceeded to say that: “ rules of construction should be regarded as a dictionary by which all parties including the court are bound, but the court should not have recourse to it to construe a word or phrase until it has ascertained from the language of the whole will read in the light of the circumstances whether or not the testator has indicated his intention of using the word or phrase otherwise than in its dictionary meaning. In other words, whether or not the testator has been in his own dictionary. In Re Bailley 1951 Chancery 421 it was held inter alia that: “The law requires the probate court not to speculate upon what paradventure may have been in the testator’s mind. It is not the function of a court of construction to improve upon or perfect the testamentary dispositions. The function of the court is to give effect to the dispositions actually made as appearing expressly or by necessary implications from the language of the will applied to the surrounding circumstances of the case.” … These cases raise profound questions about the nature of family obligations, the relationship between family obligations and the state, and the relationship between the freedom of property owners to dispose of their properties as they see fit. In my considered view, a will must be interpreted in a manner that gives effect to the intent of the testator. That means that the court may only rectify a will if it is satisfied on clear and convincing evidence that the will did not reflect the testator’s intention in bequeathing his or her estate to the beneficiaries. 34. In the case of re Estate of Sospeter Kimani Waithaka Succession Cause No. 341 of 1998, the court had this to say:“ The will of the deceased must be honored as much as it is reasonably possible. Readjustments of the wishes of the dead by the living must be spared for only eccentric and for only unlawfully harmful testators and weird wishes. But in the matters of normal https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19453/eng@2025-02-28 7

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preferences for certain beneficiaries or dependants, may be for their social goodness to the testator, the court should not freely intervene to alter them”. 35. The same position was upheld in the case of Elizabeth Kamene Ndolo v George Matata Ndolo [1996] eKLR, where the Court of Appeal had this to say:“ This court must, however, recognize and accept the position that under the provisions of section 5 of the Act, every adult Kenyan has unfettered testamentary freedom to dispose of his or her property by will or any manner he or she wishes. But like all freedoms to which all of us are entitled, the freedom to dispose of property given by Section 5 must be exercised responsibly, and a testator exercising that freedom must bear in mind that the engagement of the freedom, he or she is not entitled to hurt those for whom he was responsible during his or her lifetime. The responsibility to the dependants is especially recognized by Section 26 of the Act, which provides as follows….” 36. The Respondent did not have the obligation to reveal when the properties were purchased, and I find no concealment or fraud on the part of the Respondents. Regarding the allegations of fraud and forgery related to procuring the deceased's intention in drawing up his will, fraud is a serious allegation that must be strictly proven. The need to establish and the burden of proof of such allegations of forgery, fraud, falsehood or dishonesty was elaborated by the court in Christopher Ndaru Kagina v Esther Mbandi Kagina & Another [2016] eKLR, where the court stated that:“ It is trite law that he who alleges fraud must prove fraud. Allegations of fraud must strictly be proved. Great care needs to be taken in pleading allegations of fraud or dishonesty. In particular, the pleader needs to be sure that there is sufficient evidence to justify the allegations. In the Case Central Bank of Kenya Ltd v Trust Bank Ltd & 4 Others the Court of Appeal in considering the standard of proof required where fraud is alleged stated that fraud and conspiracy to defraud are very serious allegations. The onus of prima facie proof is much heavier on the person alleging than in an ordinary Civil Case. The burden of proof lies on the applicant in establishing the fraud that he alleges. In Belmont Finance Corporation Ltd. v. Williams Furniture Ltd [27] Buckley L.J. said: “An allegation of dishonesty must be pleaded clearly and with particularity. That is laid down by the rules and it is a well-recognized rule of practice. This does not import that the word ‘fraud’ or the word ‘dishonesty’ must be necessarily used. The facts alleged may sufficiently demonstrate that dishonesty is allegedly involved, but where the facts are complicated this may not be so clear, and in such a case it is incumbent upon the pleader to make it clear when dishonesty is alleged. If he uses language which is equivocal, rendering it doubtful whether he is in fact relying on the alleged dishonesty of the transaction, this will be fatal; the allegation of its dishonest nature will not have been pleaded with sufficient clarity.” In Armitage v Nurse [28] Millett L.J. having cited this passage continued: “In order to allege fraud it is not sufficient to sprinkle a pleading with words like “willfully” and “recklessly” (but not “fraudulently” or “dishonestly”). This may still leave it in doubt whether the words are being used in a technical sense or merely to give colour by way of pejorative emphasis to the complaint.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19453/eng@2025-02-28 8

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In Paragon Finance plc v D B Thakerar & Co the court stated that it is well established that fraud must be distinctly alleged and also distinctly proved, and that if the facts pleaded are consistent with innocence it is not open to the court to find fraud. The burden is always on the claimant to prove fraud on the part of the Respondent. The standard of proof where fraud is alleged is high. Though it is the same civil standard of proof on a balance of probabilities, it is certainly higher than the ordinary proof on a balance of probabilities but lower than proof beyond reasonable doubt. It all depends on the nature of the issue and its gravity. Evidence of especially high strength and quality is required to meet the civil standard of proof in fraud cases. It is more burdensome: (see also the cases of Mpungu & Sons Transporters Ltd –v- Attorney General & another. In Jennifer Nyambura Kamau v Humphrey Nandi, the Court of Appeal, Nyeri, emphasized that fraud must be proved as a fact by evidence; and, more importantly, that the standard of proof is beyond a balance of probabilities.” 37. The deceased declared in his will that the will was for the purpose of dealing with all immovable and movable property situate in Kenya and at paragraph 3 that ‘I devise and bequeath absolutely my Kenyan Estate to my Trustees…’ 38. To my mind, the will applied to the deceased’s assets at the time of the will and also to subsequent assets arising thereafter. I am unable to agree with the applicant that the immovable property in Kizingo should have been isolated to be dealt with under the rules of intestacy. 39. As already determined herein, the will was valid and unambiguous. There was no statement that the applicant was married to the deceased under customary, statutory, or religious law. The law on the presumption of marriage was settled. In the decision of the Supreme Court in MNK V POM; Initiative for Strategic Litigation in Africa Petition No. 9 of 2021, the Court identified the ingredients that must exist for marriage to be presumed under the Kenyan law as being the following:“ 1. The parties must have lived together for a long period of time 2. The parties must have the legal right or capacity to marry. 3. The parties must have intended to marry. 4. There must be consent by both the parties 5. The parties must have held themselves out to the outside world as being a married couple 6. The onus of proving the presumption is on the party who alleges it. 7. The evidence to rebut the presumption has to be strong, distinct, satisfactory and conclusive 8. The standard of proof is on a balance of probabilities (65) The above notwithstanding, we are of the view that the doctrine of presumption of marriage is on its death bed of which reasoning is reinforced by the changes to the matrimonial laws in Kenya. As such, this presumption should only be used sparingly where there is cogent evidence to buttress it.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19453/eng@2025-02-28 9

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40. In this case, the period of cohabiting was too short for a presumption to be made that there was a marriage. Further, the evidence relied on to prove a marriage was ambiguous and insufficient. I am likewise unable to find that the grant herein was defective in any way or tainted by fraud or concealment of material information. 41. The summons for revocation of the grant dated 10th October 2024 is thus devoid of merit. I dismiss it. 42. In the upshot, I make the following Order: i. The Summons for Revocation of the Grant dated 10th October 2024 is dismissed for lack of merit; and ii. This being a succession dispute, each party to bear its own costs. DATED AND SIGNED AT MOMBASA, THIS 28TH DAY OF FEBRUARY 2025. RULING DELIVERED VIRTUALLY THROUGH MICROSOFT TEAMS. GREGORY MUTAI JUDGE In the presence of: Mr Anangwe, for the Applicant; No appearance for the Executors/Respondents; and Arthur – Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19453/eng@2025-02-28 10

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