Diana Amasete Omaido & 12 others v Jackson Ekim Omaido

2) That this Honourable Court do declare the purported Will of ALFRED ARTHUR DURANI MARTINEAU dated 8th December, 1992 invalid and unenforceable ab initio. 3) That this Honourable Court do declare that the purported Will of ALFRED ARTHUR DURANI MARTINEAU was drafted on suspicious circumstances. 4) That this Honourable Court do declare that the deceased ALFRED ARTHUR DURANI MARTINEAU lacked capacity to draft the purported Will dated 8th December, 1992. 5) That this Honourable Court do declare that the signatures on the Will dated 8th December, 1992 be subjected to handwriting expert for examination and authenticity with his other known signatures. 6) That this Honourable Court do proceed to distribute the Estate of the deceased as if the deceased died intestate. 7) Spent 8) Spent 9) Costs be provided for. 2. The Application is premised on the grounds on the face of it and the averments of the 2nd Applicant, Ronald Arapai Omaido. He deposed that the Applicants are all beneficiaries of the Estate of Alfred Durant Martineau and Jonan Omaido. That the parcel of land initially in the names of the Deceased was Land Parcel Number 8699 measuring 1319 Acres, jointly owned by the Deceased herein and Jonan Omaido. That the Applicants are daughters, sons 2|Page ELDORET HCSUCCC NUMBER 154 OF 1994

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and grandchildren of Jonan Omaido and are rightly entitled to inherit from the parcel of land herein. Further, that the Applicants were all born and brought up on the suit land and they still reside thereon. 3. The deponent averred that he was reliably informed by relatives and workers who worked for the Deceased that as at 8 th December, 1992, that the Deceased was sickly and did not have the mental capacity to draft the purported Will. Further, that the former workers informed them that the Deceased did not have a recollection of all the beneficiaries to the Estate. He urged that the Applicants are all beneficiaries to the Estate but have not been bequeathed anything and the Will only favoured the Respondent herein. He urged that the purported Will has discriminated against the Applicants and is a forgery. 4. That the initial parcel of land has severally been sub-divided by the Respondent and most of the land sold to third party/purchasers and who occupy their respective parcels and the only remaining parcel of land is parcel number 8699/116,1R No.266962. That the Respondent intends to sell the whole parcel of land and evict all of them yet they have no other parcel of land to reside upon and utilize. He urged that they are entitled to inherit from the Estate and prayed for the Application to be allowed. Preliminary Objection 5. The Respondent raised a Preliminary Objection dated 22nd July 2025 on the following grounds; 1) That the Applicants lack the requisite locus standi to revoke and/or impugn the Will as they are not dependants or beneficiaries of the 3|Page ELDORET HCSUCCC NUMBER 154 OF 1994

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Estate of Alfred Arthur Durani Martineau within the meaning of Section 29 of the law of Succession Act. 2) That the instant Application is an abuse of the court process, having been brought over thirty (30) years after the demise of the deceased, long after the Will had been admitted to probate and the grant confirmed without any objection from the Applicants, despite the estate having been duly gazetted during the succession process. 3) That the Respondent has been the registered proprietor of Land Parcel No. 8699, IR No. 266962 since 2008, and substantial portions of the estate have been lawfully transferred to third parties who are not parties to these proceedings. 4) That the Applicants have instituted several proceedings before the Environment and Land Court challenging ownership of the suit property, and that Court has consistently pronounced itself in favour of the Respondent as the lawful owner of Land Parcel No. 8699, IR No. 266962. 5) That the Applicants are barred by laches and undue delay, and their conduct offends the principles of equity and finality in succession matters. 6) That this Application is misconceived, incompetent, and ought to be dismissed with costs to the Respondent. Applicants’ Further Affidavit 6. Ronald Arapai Omaido filed a further affidavit dated 29th July 2025 in response to the Notice of Preliminary Objection. He urged that all the 4|Page ELDORET HCSUCCC NUMBER 154 OF 1994

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Applicants and the Respondent herein are sons and daughters of the late Jonan Omaido Mishae and annexed and marked as “RAO 1 a, h, c, d, e, f” their various Birth Certificates. That the deceased Jonan Omaido Mishae had two wives and 20 children. He deponed that LR No. 8699, measuring 1,519 acres was jointly owned by their deceased father and Alfred Arthur Durant Martineau, annexing and marking as “RAO2” a copy of the title deed. 7. That their father died in 1992 and an entry of his Death Certificate was made in the Title Deed. The Respondent herein only came to be registered as proprietor on 23rd May 2008, after the death of their father and Alfred A.D. Martineau. He urged that all the children of Jonan Omaido Mishae were born and raised on L.R No. 8699 and the two wives’ homes established thereon. 8. He deponed that the two homes of the two wives still exist to-date and they still reside on the land, annexing and marking as “RA03 a, b, c” photographs of the homesteads. Further, that the Respondent has always promised to give each of the beneficiaries their rightful entitlement but now wants to disinherit them. He stated that they all lived peacefully on the parcel of land with the late Alfred A.D Martineau and occasionally the Applicants and the deceased would go for holidays to Mombasa, annexing and marking as “RA04 a & b” photographs of the same. 9. The Applicant filed a Supplementary affidavit dated 18th September 2025 where he deponed that pursuant to this court’s orders of 13 th August, 2025, they proceeded to the Lands registry at Nairobi. On 12 th September 2025 he was issued with certified copies of titles for land parcel number 8699 which he annexed and marked as “RA01&2”. The documents confirm that land parcel number 8699 Kitale Municipality was jointly registered in the names of Alfred Arthur Durani Martineau and Jonan Ekim Omaido. 5|Page ELDORET HCSUCCC NUMBER 154 OF 1994

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10.Further, as ordered by the court, the Respondent also filed an Affidavit of Accounts dated 29th September 2025 where he deponed that the deceased, Alfred Arthur Durani Martineau, died testate on the 24 th May 1994 leaving a valid written Will dated 8th December 1992, annexing and marking as “JEO1" a true copy of the Will. Further, that he was duly appointed as the Executor and Trustee of the said Will and was issued with a Grant of Probate on 3rd March 1995 by the Court. 11.He annexed and marked as "JEO-2" a true copy of the Certificate of the Grant of Probate. The Grant of Probate was confirmed on 27th November 1998 and he was subsequently issued with a Certificate of Confirmation of Grant. He annexed and marked as "JEO-3" a true copy of the Certificate of the Confirmed Grant. Pursuant to the said Grant, he identified and collected all assets of the estate, which included; a) Land Reference Number 8699/7 (Original Number 8699/3/2), known as Starosiacres Farm, as delineated on Survey Plan Number 283073, together with cattle and farm equipment thereon: b) Household goods, family photographs, books, mementos, and other personal effects. 12.That he settled all lawful debts, funeral expenses, testamentary expense, costs, and taxes payable out of the estate as required by law and in accordance with the will. That in compliance with Clause 4(d) of the Will he paid a legacy of Kshs. 500,000/- in cash to Mrs. Sylvia Duram Richardson of Kiganjo. In compliance with Clause 4(c) of the Will, on 23rd May 20081 he transferred to himself absolutely the property known as Starosiacres Farm 6|Page ELDORET HCSUCCC NUMBER 154 OF 1994

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(LR 8699/3) together with all cattle and farm equipment thereon. He annexed and marked as "JEO-4" a true copy of the Certificate of title. In compliance with Clause 4(b) of the Will, the residue of the estate, after payment of all expenses and legacies, was vested in him absolutely. 13.He urged that he retained and dealt with the deceased's family photographs, books, and momentous as directed under Clause 4(e) of the Will. The estate has been fully administered and distributed in accordance with the terms of the Will, and nothing remains outstanding. He annexed and marked as "JEO5” a true copy of the Estate Account showing particulars of the assets collected, liabilities settled, and the distribution effected. 14.The court directed that both the Application and the Preliminary Objection be canvassed together by way of written submissions and both Counsel complied and filed their respective on behalf of the parties. Applicants’ Submissions 15.Counsel for the Applicant submitted that in the Supplementary Affidavit of Ronald Arapai Omaido, the Applicants have annexed copies of the title marked as annexure “RAO l & 2". He referred to entry number 13 which shows; fi Transfer to Jonan Omaido, the undivided joint interest of Alfred Arthur Durani Martineau” fi Presentation No. 306 fi Date of Registration; 7.4.72” 16.He also referred the court to Entry No. 15; fi Death Certificate of Jonam Omaido Mishae- deceased” 7|Page ELDORET HCSUCCC NUMBER 154 OF 1994

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fi Presentation Number 1157 fi Date of Registration; 27.10.1992” 17.That the above entries in the title clearly illustrate the joint ownership in shares between Alfred Arthur Durani Martineau and Jonan Omaido Mishae (Deceased). Additionally, that in the Further Affidavit of Ronald Arapai Omaido dated 29th July, 2025 he has annexed birth certificates marked as annexures “RAO 1a, b, c, d, e f' which show the name of their father as Jonan Omaido Mishae. 18.The Respondent herein is also a son of Jonan Omaido Mishae. Both the Applicants and the Respondent are beneficiaries of the Estate of their deceased father and are entitled to their respective shares out of the Estate. In the purported Will, the Respondent is the sole beneficiary of the whole Estate and no provision has been made for the Applicants which is Contrary to Section 26 of The Law of Succession Act. 19.Counsel urged that in the Further Affidavit dated 29 th July 2025, the Applicants have demonstrated that Jonan Omaido Mishae had two households and they have also annexed photographs of the two homesteads as annexures “RAO 3a, b, c” and which homesteads still exist to-date. He cited Section 26 of The Law of Succession Act and the decision of the Court of Appeal at Nyeri; Civil Appeal No. E014 of 2023, Priscilla Nkirote Marete vs Gladys Kinaitore Marete & 3 Others and Civil Appeal no. 128 of 1995 – Elizabeth Kamene Ndolo vs George Matata Ndolo and urged the Court to allow the Application dated 21st June 2025. Respondents’ submissions 8|Page ELDORET HCSUCCC NUMBER 154 OF 1994

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20.Counsel for the respondent filed submissions in support of the preliminary objection and in opposition of the application. On whether the applicants have locus standi counsel urged that locus standi is a Latin term which literally means ‘place of standing' and refers to the right of an individual and/or party to appear in a particular case. That it is trite law that pleadings filed by a person who has no locus standi are void ab initio citing the case of Ibrahim vs Hassan & Charles Kimenyi Macharia [2009] eKLR. 21.He urged that the court is sitting as a Probate Court with the mandate to supervise and oversee distribution of the estate of the deceased to the genuine heirs as per the decision of the court in Re Estate of GKK (Deceased) [2017] eKLR. He urged that the persons who have locus standi are the beneficiaries/heirs of the estate and any dependents of the deceased as defined by Section 29 of the Law of Succession Act. That the threshold for succession matters and every matter before the courts is that a party must be able to demonstrate to the court that there is a sincere and direct stake in the matter. 22.Counsel urged that in the instant case, the Applicants are sons, daughters, and grandchildren of the late Jonan Omaido Mishae, who was a joint owner with the Deceased of Land Parcel No. 8699. The Applicants’ father, Jonan Omaido Mishae, held a half undivided joint interest, which reverted automatically to the Deceased upon Jonan's death under the doctrine of survivorship. The Will of the Deceased, duly executed on 8th December 1992, bequeathed the entire estate, including the suit land, to the Respondent. The Grant of Probate was petitioned for and confirmed on 3 rd March 1995, without objection. 9|Page ELDORET HCSUCCC NUMBER 154 OF 1994

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23.The applicants have provided evidence that they are the children of the deceased’s business partner and this does not fall within the category of dependents as espoused under Section 29 of the Act and therefore, they lack the requisite capacity to claim inheritance in the estate of the deceased person. That if the applicants then intend to claim from the estate of the deceased they need to prove that they are dependents of the deceased as per Section 29. He cited in re Estate of Edward Ngangira Wamagata (Deceased) (Succession Cause 1255 of 2017) [2024] KEHC 6312 (KLR), and re Estate of Johana Murage (Deceased) (Succession Cause 282 of 1998) [2025] KLR in support of this submission. 24.Additionally, he relied on Priscilla Nkirote Marete v Gladys Kinaitore Marete & 3 Others (Civil Appeal E014 of 2023 [2024] KECA 371 (KLR) and Elizabeth Kamene Ndolo v George Matata Ndolo (Civil Appeal No. 128 of 1995) [1996] eKLR and urged that, both of these cases dealt with dependants who had a recognized legal claim or spouses under Section 26 of the Law of Succession Act. 25.Counsel urged that Section 26 of the Law of Succession Act empowers the court to make reasonable provision for dependants where a Will fails to do so. However, this jurisdiction is strictly limited to persons who qualify as dependents under Section 29 of the Act. Counsel submitted that the Applicants herein do not fall within that category. 26.They are siblings of the Respondent and children of the late Jonan Omaido Mishae, whose joint interest in the suit property ceased upon his death by operation of the doctrine of survivorship. Consequently, they cannot claim through him nor assert dependency upon the deceased testator, Alfred Arthur Durani Martineau. 10 | P a g e ELDORET HCSUCCC NUMBER 154 OF 1994

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27.Counsel urged that the existence of a valid Will further reinforces the principle of testamentary freedom under Section 5 of the Act. That while that freedom is subject to the court's power under Section 26, such intervention arises only where a proven dependant has been left without reasonable provision. He cited the decision in Elizabeth Kamene Ndolo v George Matata Ndolo (Civil Appeal No. 128 of 1995) in this regard and urged that in the present case where there exists a valid Will and no proof of dependency, the Applicants cannot invoke Section 26 to rewrite the testamentary wishes of the deceased. Their claim is therefore legally untenable. He urged the court to find that the Applicants lack the requisite locus standi to challenge the Will or to purport that it is a forgery or liable to revocation. 28.On the issue of testamentary freedom, Counsel urged that allegations were made by the Applicant that the deceased lacked testamentary capacity and was sickly. He submitted that these allegations are purely speculative and hearsay. That the Applicants have failed to discharge the burden of proof placed upon them by law to demonstrate otherwise. 29.He urged this Court to uphold the validity of the Will on this ground. He cited Section 5(3) of the Law of Succession Act and urged that the law therefore establishes a presumption of sound mind in favour of the testator, which can only be rebutted by cogent evidence from the party alleging incapacity. 30.He urged that this has been the legal standard and is espoused in the case of Re Estate of Gatuthu Njuguna (Deceased) [1998) KEHC 6 (KLR). Counsel urged that the Applicants bear the initial burden to produce 11 | P a g e ELDORET HCSUCCC NUMBER 154 OF 1994

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evidence raising a reasonable suspicion of incapacity, such as medical reports, or witness accounts from the relevant period. 31.Here, the Applicants have annexed birth certificates, title documents, and photographs of homesteads but nothing pertaining to the Deceased's mental or physical state in December 1992. Absent such evidence, he invited the court to find that the presumption of capacity remains intact. 32.Counsel urged that in re Estate of Murimi Kennedy Njogu -Deceased [2016] KEHC 6302 (KLR), the court outlined a four-prong test for testamentary capacity, derived from common law principles: "Generally, it takes less capacity to make a will than to do any other legal act. As guidance, a four-prong test is often used. The testator must; a) Know the nature of the act (of making a will); b) Know the "natural objects of his bounty"; c) Know the nature and extent of his property; d) Understand the disposition of the assets called for by the will." 33.That in applying this test, there is no indication that the Deceased failed in any prong. The Will annexed clearly identifies the deceased's property, names the Respondent as the sole beneficiary/executor, and demonstrates an understanding of its effects. The Applicants' claim of "no recollection of all beneficiaries" is misplaced as the deceased was under no obligation to include them if they were not his dependents. Counsel urged that the deceased is presumed to have had testamentary capacity, and the Will dated 8th December, 1992, should be upheld as valid. 12 | P a g e ELDORET HCSUCCC NUMBER 154 OF 1994

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34.On whether the will was duly executed, Counsel urged that it was duly executed in accordance with the provisions of the Law of Succession Act and that the Applicants have failed to adduce any cogent evidence to rebut the presumption of due execution or to establish any suspicious circumstances. He urged that Section 11 of the Law of Succession Act provides for the formal requirements for the execution of a written will and cited the decision on re Estate of Julius Mimano (Deceased) [2019] KEHC 10103 (KLR) and in the Matter of the Estate of James Ngengi Muigai High Court Succession Cause Number 523 of 1996. 35.Further, that what emerges in this case is that the question of execution of a will under suspicious circumstances is most likely to arise in cases where the testator is in a weakened condition or state caused by either old age, illness, disease, intoxication, or the like. He urged that in re Estate of Julius Mimano (Deceased) [2019] (supra), the court established a test for which to determine whether the testator will be executed in suspicious circumstances. 36.Counsel urged that the Applicant has not adduced any evidence as to the condition of the deceased at the time of the execution of the will. There are no testimonies of the applicant’s witnesses speaking as to the state of the health of the deceased in the period of executing the will on 8 th December 1992. Further, that there is no evidence on record that the Respondent, Jackson Ekim Omaido, played any role in drafting or procuring the will. The Applicants' vague claims of suspicious circumstances and forgery do not raise a prima facie suspicion sufficient to shift the burden to the Respondent. 37.Counsel cited Karanja and Another v Karanja {2002] 2 KLR 22, In re Estate of Samuel Ngugi Mbugua (Deceased) [2017] eKLR and urged that the Applicants’ call for a handwriting analysis is clear evidence that they 13 | P a g e ELDORET HCSUCCC NUMBER 154 OF 1994

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lack current evidence of forgery, shifting the burden improperly to the court. Forgery allegations require proof beyond a balance of probabilities, approaching beyond reasonable doubt yet none has been tendered. Counsel urged that in the absence of credible evidence, the Will must be presumed valid. The Applicants’ allegations of suspicious circumstances are unsubstantiated and legally insufficient to invalidate the Will. 38.Counsel urged that the Applicants are not entitled to any portion of the Estate of the Deceased and their claims are fundamentally misconceived, as they fail to establish any legal basis for entitlement under the Law of Succession Act. He submitted that the Applicants' father, Jonan Omaido Mishae, held a half undivided joint interest in the suit land (Land Parcel No. 8699). Upon his death on 16th October 1992, his interest automatically reverted to the deceased by operation of the doctrine of survivorship. 39.The Applicants thus inherited no interest from their father that could pass to them in the suit property. He urged that Section 2 of the Land Act, 2012, defines "joint tenancy" as a form of concurrent ownership where two or more persons each possess the land simultaneously, with the interest transferring to the surviving owner(s) upon death. This doctrine excludes jointly owned property from the operation of the Law of Succession Act upon the death of one joint tenant. 40.He cited the case of Mwangi Gakuri v Bernard Kigotho Maina & another [2016] eKLR, in Re Estate of John Njogu Gichobi (Deceased) [20I8]eKLR and urged that the Applicants’ reliance on their father's partnership is thus futile, as survivorship operated automatically, rendering the land the deceased's absolute property prior to his Will. Counsel reiterated 14 | P a g e ELDORET HCSUCCC NUMBER 154 OF 1994

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that the deceased bequeathed the entire Estate, including the suit land, to the Respondent. 41.The Grant of Probate was petitioned for and confirmed on 3rd March 1995, without objection. He cited Section 5(1) of the Law of Succession Act and reiterated that the Will meets formal requirements under Section 11 and is free from defects of capacity or suspicion. Counsel urged the court to find in favour of the Respondent Analysis & Determination 42.Having considered the pleadings as well as the submissions, it is my considered opinion that the following issues arise for its determination; i) Whether the Preliminary Objection has merit ii) Whether the will dated 8th December 1992 is invalid and unenforceable iii) Whether the Applicants were dependants of the deceased and therefore have a beneficial interest to his estate 43.On the 1st issue on the merit or otherwise of the Preliminary Objection, the Court of Appeal for Eastern Africa, in Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors ltd (1969) EA 696, (Law JA) defined a preliminary objection as follows; ''So far as I’m aware, a Preliminary Objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation or a submission that the parties are 15 | P a g e ELDORET HCSUCCC NUMBER 154 OF 1994

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bound by the contract giving rise to the suit to refer the dispute to arbitration.” 44.Sir Charles Newbold President of the Court in the Mukisa case went on to state; “a Preliminary Objection cannot be said to be such if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.” (Page 710). 45.In considering the preliminary objection herein filed, in a nutshell it challenges the locus standi of the Applicants as beneficiaries within the meaning of Section 29 of the Law of Succession Act, the duration of time that it has taken the Applicants to challenge the Will to wit 30 years and hence barred by laches and undue delay, that the Respondent as the registered proprietor of the land has already lawfully transferred to third parties substantial portions of the suit land and that that the Applicants and the Respondent have litigated severally in court over the suit property and in all instances the Respondent has been pronounced as the lawful owner. 46.A careful consideration of the issues raised as herein above summarised leads to the conclusion that the key elements comprising the wider preliminary objection to wit, the beneficial interest alleged, that the delay was undue, that substantial portions of the land have already been transferred to third parties and that there has been litigation in courts between these parties over the same suit land are matters of fact that can only be proved by way of evidence. 47.It follows therefore that the Respondent preliminary objection is not based on pure points of law but is based on facts. In this regard, the same fails the test 16 | P a g e ELDORET HCSUCCC NUMBER 154 OF 1994

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of what comprises a preliminary objection as set out in the Giella Case (supra). In the circumstances, the court finds that the same is misconceived and lacks and is therefore now hereby dismissed. 48.On the 2nd issue of whether the will is invalid and unenforceable, the reasons for which this allegation has been made by the Applicants is already herein captured in the summary of the Applicant’s pleadings. The court need not rehash them in this regard. That said, Section 5 of the Law of Succession Act provides for the freedom of any man or woman to dispose of any or all of his or her property as he or she wishes. The exact provision is as follows; 5. Persons capable of making wills and freedom of testation (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 disposition by reference to any secular or religious law that he chooses. (2) A female person, whether married or unmarried, has the same capacity to make a will as does a male person. (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. 17 | P a g e ELDORET HCSUCCC NUMBER 154 OF 1994

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49.Section 11 of the same said Law of Succession Act on its part provides as follows: “ Written wills 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 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. 50.Going by the provisions of these two Sections of the Law of Succession Act there are several key ingredients that comprise the elementary and primary requirements that every testator needs to comply at the point of making 18 | P a g e ELDORET HCSUCCC NUMBER 154 OF 1994

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his/her will in order that the will be considered to be valid and enforceable. These requirements are as here under; (a) The testator must be of sound mind (b)The testator must not be a minor (c) The testator must sign or affix his mark to the will (d)If the will be signed by some other person, it must be in the presence of and by the direction of the testator (e) The will must be attested by two or more competent witnesses (f) Each of the witnesses must have seen the testator sign or affix his mark to the will, or must have seen some other person sign the will, in the presence and by the direction of the testator (g) Each of the witnesses must sign the will in the presence of the testator 51.The legal dicta which states that “he who alleges must prove” is properly set out in Sections 107, 109 and 112 of the Evidence Act. Section 5(4) of the Law of Succession Act also provides that the burden of proving that a testator was, at the time he made any will, not of sound mind, or that he was 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, shall be upon the person who so alleges. 52.In the instant case, by dint of the fact that the Applicants are the ones alleging that the will of the deceased herein that bequeathed his entire estate to the Respondent was invalid and therefore unenforceable, the burden rests with them to prove that which they allege. In this regard, they needed to avail cogent coherent and credible evidence to demonstrate that these requirements were not at all met as at the time of making the will. 19 | P a g e ELDORET HCSUCCC NUMBER 154 OF 1994

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53.From the pleadings, they contend that the will is invalid on the basis of capacity, forgery of signatures and having been drafted under suspicious circumstances. However, a consideration of the evidence proffered as proof of these allegations shows that the same is premised on evidence to wit the accounts from former employees who were never called as witnesses. For reasons that these former employees were never called to testify, their evidence amounts to hearsay evidence which is generally inadmissible except in special and specific circumstances. 54.Further, as rightly pointed out by Counsel for the Respondent in his submissions, whereas the Applicants bear the initial burden to produce evidence raising a reasonable suspicion of incapacity, such as medical reports, or witness accounts from the relevant period, the Applicants herein annexed birth certificates, title documents, and photographs of homesteads and holiday retreats but nothing pertaining to the deceased's mental or physical state as at December 1992 and/or when the will was written to persuade that court of the alleged invalidity of the will based on the reasons advanced. 55.For the above reasons, I find that the Applicants have failed to discharge the legal burden of proving the allegations that they have made in seeking that the will be declared invalid and unenforceable ab initio 56.On the last issue of whether the Applicants are beneficiaries of the estate, in considering all the arguments raised for and against this issue, my finding is as follows. Whereas Section 26 of the Law of Succession Act empowers the court to make reasonable provision for dependants where a will fails to do so, this jurisdiction is strictly limited to persons who qualify as dependents under Section 29 of the Act. 20 | P a g e ELDORET HCSUCCC NUMBER 154 OF 1994

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57.It is common ground that the Applicants herein are siblings of the Respondent and children of the late Jonan Omaido Mishae. It is also common ground that their late father and the deceased Alfred Arthur Durani Martineau held a joint interest in the suit property which fact was indeed and listed in the Certificate of Title. It is also not in dispute that upon his demise, the fact of the death of the father of th the Applicants was also listed in the same said Certificate of Title. Since the Applicants seek to rely on these two issues to assert dependency upon the deceased testator, Alfred Arthur Durani Martineau, it is important that the definition of a dependant as defined by Section 29 of the Law of Succession Act be restated and it is as hereunder; 29. Meaning of dependant For the purposes of this Part, "dependant" means— (a) the wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death; (b) such of the deceased's parents, step-parents, grandparents, grandchildren, step-children, children whom the deceased had taken into his family as his own, brothers and sisters, and half-brothers and half-sisters, as were being maintained by the deceased immediately prior to his death; and (c) where the deceased was a woman, her husband if he was being maintained by her immediately prior to the date of her death. 58.Clearly, from the pleadings filed, the Applicants have not at all alleged that they were dependants of the deceased Alfred Arthur Durani Martineau under 21 | P a g e ELDORET HCSUCCC NUMBER 154 OF 1994

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any of the categories listed above. They state that they lived on the land and that that is where they were born and brought up. This may very well be so, but from the depositions made, it is clear that they lived there under the aegis of their late father who was an employee of the deceased. They were not living upon the land as direct dependants of the deceased Alfred 59.In considering and addressing my mind to the case law relied upon by the Applicants to wit Nyeri Civil Appeal No. E014 of 2023, Priscilla Nkirote Marete vs Gladys Kinaitore Marete & 3 Others and Civil Appeal no. 128 of 1995 – Elizabeth Kamene Ndolo vs George Matata Ndolo, the same are easily distinguishable from this matter in the sense that Applicants in both cases were legal dependants of the deceased persons therein by virtue of the fact that they were wives of the particular deceased persons and therefore lawfully recognized as dependants under Section 29 of the Law of Succession Act. These decisions are therefore not applicable in this case. 60.The Applicants herein on the other hand have hinged their claim on the fact of the joint tenancy that their deceased father had with the deceased herein. However, it is to be noted that upon the demise of the Applicant’s father, his joint interest in the suit property with the deceased ceased, and as provided under Section Section 2 of the Land Act, 2012 which defines "joint tenancy" title to entire the suit land reverted to the deceased Alfred Arthur Durani Martineau who then had exclusive and absolute ownership of the land and at the time of his death as provided under Section 5 of the Law of Succession act, was free to dispose of the same as he wished. 61.In the exercise of this free will, by way of a will, the deceased Alfred Arthur Durani Martineau bequeathed the entirety of his free estate being Land Parcel Number 8699, which is the suit land, and which now also comprised of the 22 | P a g e ELDORET HCSUCCC NUMBER 154 OF 1994

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joint interest that had reverted to him by dint of the death of the Applicants father, to the Respondent. 62.This being the case, the applicants cannot now claim through the Respondent for reasons that the suit land did not belong to their deceased father at the time of his demise and was therefore not free property available for distribution as part of their deceased father’s estate. Further, they can also not assert dependency upon the deceased testator for reasons that they are not his dependants. 63.In light of my conclusions herein, and also having satisfied myself that the Applicants have failed to prove that the will of the deceased herein bequeathing the entirety of his free estate to the Respondent who he also appointed to be the executor of his will, it is my finding that the Applicants have failed to prove the allegations that they have levelled against the Respondent in seeking that the last will and testament of the deceased herein be invalidated to the required degree, or at all. It is therefore my further finding that the Application lacks merit and the same is accordingly dismissed with costs to the Respondent. Read dated and Signed Virtually at BUNGOMA on 3rd June 2026 E. OMINDE JUDGE 23 | P a g e ELDORET HCSUCCC NUMBER 154 OF 1994

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