A. Is this appeal incompetent for having been filed without a decree thereby failing to comply with Section 79 of the Civil Procedure Act and Order 42 Rule 13 Sub Rule 4(f).
23.Order 42 rule 13 (4) (f) provides that;a.Memorandum of appealb.Pleadingsc.The notes of the trial magistrate made at the hearing.d.The transcript of any official shorthand, typist notes, electronic recording or palantypist notes made at hearing.e.All affidavits, maps and other documents whatsoever put in evidence before the magistrate.f.The judgement, order or decree appealed from and where appropriate, the order (if any) giving have to appeal.
26.The court in the said citation also cited the case of “Silver bullet Bus with approval where it was held that it would be too draconian to strike out the appeal of these circumstances.
27.Also cited with approval was the case of Bwana Mohammed Bwana versus Silvano Buko Boyana and 2 others (2015) eKLR at paragraph 4. It was held that “without a record of appeal a court cannot determine the appeal cause before it” as the judgment of the trial court was attached to the record of appeal and in the understanding of the procedure law, a decree is the formal expression of the judgement. In essence to determination of the trial court which is the decision appealed to fully set out in the judgment of that court and it is the essence which the appellant court should consider hearing the appeal. The court is not hindered by the lack of the formal expression of the decree if the full judgment of the trial court is exhibited in the record of appeal, and this the essence of the order 42 rule 13(4)(f) of the Civil Procedure Rules, which requires attachment only of judgment, order or decree appealed from.
28.It is thus clear that a party can attach either the judgment, order or decree. The record of appeal has the judgement at pages 83 – 93 of the record of appeal that satisfy the provision of order 42 rule 13(4)(f). The appeal as filed is therefore competent and cannot be struck out.
B. Did the deceased (Wanyua Kamau) die testator or intestate
29.The respondent who is the wife of the deceased did apply for probate of written will (found at pages 31 – 34 of the Records of appeal). She did request for confirmation of grant and the appellants who is the sister in law and nephew of the deceased objected and filed a protest on the basis that the deceased was unwell and was not in the right state of mind/incapacitated thus incapable of making the will in 2012. Further they stated that the will was a forgery and did not represent the wishes of the deceased.
30.Section 5 of the law of succession Act provides that ;(5)Persons capable of making will and freedom of testation(i).Subject to the provisions of this part III, every person who is of sound mind and not a minor may dispose off all or any of his free property by wills and may thereby make a deposition by reference to any secular or religious law that he chooses.(ii).A female person, whether married or unmarried, has the same capacity to make a will as does a male person.(iii).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 is not to know what he is doing.(iv).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.
31.The 2nd appellant swore an affidavit of protest dated 27/4/2018, when she alleged that parcel of land Inoi/Kariko/290 is clan land and the deceased Wanjua Kamau held it interest for the sons of his brother Ephentus Kamau Ndigoya. She stated that on the ground then were fixed portions where each party resided and put up their houses/structures, planting tea bushes and coffee amongst other crops and that the mode of distribution in his lifetime should be maintained.
32.The protestor had a witness on Karani Mwaniki Ngondu who filed a witness statement. It was filed in court on 23rd August 2018. He did state therein that, he was a tea farmer and resided within Karini village within Kirinyaga County. That sometimes in March 2022 the petitioner approached him to guarantee a loan at Bigwa Society Ltd which request he accepted. The petitioner later called him and the late Francis Munene Njeru (now deceased) to her home where they placed their thumb print in a document. They believed that they were guaranteeing the loan and that on the material day Wanjau Kamau was unwell and did not speak to them.
33.In his witness statement the witnesses denied ever visiting M/s Ndana and Company Advocate, signing any will with respect to the late Wanjau Kamau and placing his thumb print on his will.
34.In her evidence in chief the protestor adopted her Affidavit of protest and in cross examination alleged that he deceased got sick in 2013. She did not know the decease he suffered from but before 2013, he was okay. She indicated that the will was not written in 2012. Mr. Karani Mwaniki Ngondu also testified and adopted his statement of 3/8/2018. He was shown the written will and confirmed that he signed it at the advocate office but did not know what he was signing. The document (will) was read to him but he could not recall its content.
35.In cross examination, he stated that “I don’t agree with what is indicated in my statement”. I thumb printed the will at advocate Ndana office”. He further stated that it was the petitioner who made him sign the will but did not specify its content.
36.The appellant’s submitted that there was enough proof that the deceased was unwell in 2012 and thus lacked capacity to make and /or execute a will and thus the magistrate was wrong erred by holding that they adduced no evidence showing that indeed the testator was unwell.
37.Section 5(4) of the Law of Succession Act, places the burden of proof on the party who alleges that testator was unwell and this incapable of signing of witnessing his/her will.The legal burden of proof is provided for by section 107 of the Evidence Act Cap 80 Laws of Kenya. The said section stated that;Section 107 of Evidence Acti.Whoever desires any court to give judgment as to any legal right on liability dependent on the existence of facts which he ascertains must prove that those facts exist.ii.When a person is bound to prove the existence of any fact, it is said that eh burden of proof lies on that person.
38.It was therefore the burden of the petitioner who sought annulment of the Will dated 21/3/2012 to prove to the court satisfaction that indeed the testator was unwell and did not have capacity to make the will. That is the legal burden of proof.
39.There is also the evidential burden of proof. In the majority decision of the supreme in president Petition no.1 of 2017 between Raila Amolo Odinga and another versus IEBC and 2 others (2017)eKLR, the court had the following to state on the evidential burden of proof at paragraph 132 and 133 thereof;(132)132) though the legal and evidential burden of establishing the facts and contentions which will support a party case in static and remained constant through and trial with a plaintiff, however, “depending on the effectiveness with which he or she discharges this, the evidential burden keep, shifting and its position at any time to determine by answering the question as to who would lose if no further evidence were introduced.(133)133) it follows therefore that once the court is satisfied that the petitioner has adduced sufficient evidence to warrant impugning an election, if not controversial, then the evidence burden shift to the respondent. In most cases the elected body to adduce evidence rebutting that assertion and demonstrating that there was compliance with the law or if the ground is on any irregularities, that they did not affect the results of the elections. In other words, while the petitioner bears an evidentiary burden to adduce “factual evidence of prove his/her allegations of breach, then the burden shifts and it behoves the Respondent to adduce evidence to prove compliance with the law..”
41.From the evidence adduced it is clear that the protestors/appellants did not prove the legal and evidential burden placed on them. The 2nd appellant did not even plead in the protest affidavit filed and dated 27/4/2018 and further affidavit of protest dated 3/8/2018 that the deceased Wanjua Kamau was unwell and not capable of making a will. This issue only came up during cross examination when she stated that the deceased Wanjua Kamau “got sick in 2013, I don’t know which desease he was suffering from. Before 2013 he was Ok.”
42.The will sought to be impugned is dated 27th March,2012. This means that by the time deceased was making his will he wasn’t unwell, going by the evidence of the protestor who stated that he got unwell from 2013. Further even if assuming the protestor was unwell, the appellant did not place any documentary or any other evidence to conclusive prove that fact and also prove that due to his illness, how was mentally incapacitated. The party who would fail without further evidence is the appellant and indeed this ground of appeal must fail.
43.The appellant’s witness Karani Mwaniki Ngondo literally disowned his evidence filed through his witness statement. There he had alleged that the Respondent tricked her and made him believe that he was guaranteeing him at Bigwa Sacco Society Ltd and the document he signed were in the respondents house while testifying in court he completely distanced himself from his statement and said it was not correct.
44.The appellant witness indeed confirmed that they went to the office of John Ndana “I thumb printed the will at advocate Ndana office”. He confirmed that he was with Lucy Bundi and his national identity card not reflected in the will was correct.
45.The Will of the deceased dated 21/3/2012 was properly drawn by Mr. John Ndana Advocate who confirmed that same and the deceased and his witness expressly signed by placing their thumb print so that nobody could dispute the said signature. Mr. Karani Mwaniki Ngondu too confirmed that in 2012 he went to the said advocate’s office and witnessed the will. The said will is witnessed by two competent person and there is no basis whatsoever in rejecting the same. This court thus finds that the deceased Wanjua Kamau died testate
C. Did the trial court erred in law and fact by failing to consider that the deceased had during his lifetime distributed the estate/gave out a gift before his death.
46.The trial court did by his judgment dated 6th December 2019 considered the grounds raised by the appellants at page 73 thereof stated that;This clearly shows that the court did indeed consider the issue of ‘gift’ as alleged by the appellant and rejected the said assertain.
47.The will dated 21st March 2012 also at paragraph 1 did clearly stated that “I hereby revoke all former wills, codicils and testamentary disposition hereto fore made and declare this to be my last will and testament” the appellant have not shown how this will is biased nor did they show that the alleged gift was made after/effected after this will had been made. The protestors evidenced it that they have resided there since time in memorial. That maybe so but they failed to prove that their portion was gifted to them by the deceased Wanjua Kamau. If the pleading (the affidavit of protest is anything to go by) it was their case that the deceased held land parcel inoi/kariko/290 (a clan land) for his family and in trust for the sons of his late brother Ephantus Kamau Ndigoya distributed it during his lifetime. Nowhere it is pleaded he gifted them a portion.
D. Were the deceased (Wanjua Kamau’s) wishes illegal, unfair, discriminating and unjust to the beneficiaries.
48.The deceased Wanjua Kamau left a will dated 21st March 2012 and his proposed distribution which include the appellants was captured by the petitions supporting affidavit to the summons for confirmation of grant dated 2nd March 2018 at paragraph 9. The identity and shares of all the person beneficially entitled to the said estate as having been ascertained was as follows;a.Land parcel inoi/kariko/290 to be shared as follows;1.Ephantus Kamau Wanjua 0.16ha2.Antony Muthii Wanjua 0.16ha3.Henry Kinyua Wanjua 0.16ha4.John Wanjobi Wanjua 0.16ha5.Josephat Mwangi Wanjua 0.16haTotal (0.8ha or 1.9768 acres approximately 2 acres)6.Jacinta Wanjiku Munene7.Patrick Maina Wakuthii8.Mary Nyawira Muthii 0.4ha9.Margaret Wambui Wanjua10.Lucy Muthoni Wanjau(0.4ha or 0.9842 acres/approximately 1 acre11.Lucy Bundi12.Kamau Bundi 0.3ha13.Muchene Bundi(0.3ha or 0.7413 acres/approximately ¾ acre)b.Lock up plot no.30 Baricho Jacinta Wanjiku Munene –whole share
49.After the protestor had testified at the request of her counsel she was stood down and given leave to file a further affidavit of protest (filed in court on 16/8/2019) where she gave her own counter proposal on distribution and annexed the land search of Inoi/kariko/290 dated 5th July 2019. The whole parcel measured 1.5ha or 3.706 acres.
50.At paragraph 6 of the further affidavit of protest, the appellant did propose the following mode of distributiona.Inoi/kariko/2901.Wamutira Bundi Kamau2.Fith Nyanguthii3.Ephantus Kamau4.Grace Wanjau 1 acre jointly5.Daniel Karimi6.Patrick Macharia7.Margaret Wanjiru(1 acre is equal to 0.404 ha)
1.Ephantus Kamau Wanjua 0.45acre
2.Antony muthii wanjau 0.45acres
3.John Wanjohi Wanjua 0.45acres
4.Josephat Mwangi Wanjua 0.45acres
5.Henry Kinyua Wanjua 0.45acres(2.25 acres or 0.9105 ha)1.Jacinta Wanjiku Munene2.Mary Nyawira Muthii3.Margaret Wambui Wanjua 0.45 acres jointly4.Lucy Muthoni Wanjua
5.Patrick Maina Wakuthii(0.45acres or 0.18 ha)b.Plot no.30 Baricho1.Jacinta Wanjiku Munene2.Ephantus Kamau Wanjua3.Antony Muthii Wanjua4.John Wanjohi Wanjua equal shares5.Josephat Mwangi Wanjua6.Henry Kinya Wanjua
51.The appellants urged this court to find that the deceased provision under his will was illegal unfair discriminating and unjust to the beneficiaries and thus the will should be declared null and void.The court in Currupian Okumu versus Perez Okumu and 2 others (2016)eKLR the court held the view that;…the freedom of a testator to dispose off properly of his free properly by will is however not absolute. The court can after the death of the testator alter the terms of a will following an application under section 26 of the Succession Act.
53.As held earlier, the will dated 21/3/2012 is valid. According to the appellants own proposed of distribution which is elaborately set out above, the appellants prayed to be granted 1 acre of land jointly. The said 1 acre of land is exactly what has been given to them under the will. The only difference is that it is set out as 0.4ha and not acres. In essence what the appellants are fighting for they have received. It therefore cannot be said that there is anything unfair, discrimination or unjust in the will. Further while testifying the 2nd appellant that plot 30 Banana should be left for Jacinta Wanjiku as she lives there she said “ Jacinta and her children should have it. I have no interest in it”.
54.This ground of appeal too fails for obvious reasons as stated above.
E. That the learned trial magistrate erred in law and fact in holding that the 2nd appellant was not a dependent within the manning of Section 29 of the law of Succession Act.
55.Section 29 of the Succession Act defines dependent as;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 parents, step parents, ground parents, grandchildren, stepchildren, children, whom the deceased had taken into his family as his own brothers and sisters and half brothers and half sisters as were being mentioned by the deceased immediately prior to his death and;c.Where the deceased was a woman, her husband if he was been mentioned be her immediately prior to the date of her death.
56.The appellants submitted that they were dependent by virtue of being wife and children of the deceased late brother one Stephen Bundi Kamau and this fall within the meaning of dependent by virtue of section 29(b) of the law of succession Act.
57.For the appellant to claim to be beneficiary under section 29(b) of the Law of Succession Act, they ought to have presented evidence to court to show that prior to his death, Wanjua Kamau deceased was maintaining them. No such evidence has been availed or any suggestion to that effect made.In the Estate of Alfred Muture Munya (deceased)eKLR the court held that;