IN THE COURT OF APPEAL

AT NAIROBI

(Coram: Gachuhi, Apaloo JJA & Masime Ag JA)

CIVIL APPEAL NO 82 OF 1983

Between

BETH WAMBUI ....................................................... 1ST APPELLANT

WANGUI GIKONYO................................................. 2ND APPELLANT

AND

GATHONI GIKONYO............................................. 1ST RESPONDENT

JAMES KARUGU GIKONYO................................. 2ND RESPONDENT

NYAKIO GIKONYO.................................................3RD RESPONDENT

JUDGMENT

(Appeal from a judgment of the High Court at Nairobi, Aganyanya J)

January 15, 1988, Gachuhi JA delivered the following Judgment.

There has been previous proceedings regarding the dispute by the members of the family regarding the deceased’s piece of land whether or not it was disposed of by will.

To start with, proceedings were before the District Magistrate at Githunguri in Succession case number 66 of 1978. During the hearing documents were produced, purporting to be wills made by the deceased. The District Magistrate considered the case and found that since there was a certificate of transmission signed by an Administrative Officer that the deceased died intestate, the question of him having made a will did not arise. He decided that heirs to the deceased’s land would be Wangui wife of Gikonyo (2nd Appellant herein), Nyakio daughter of Gikonyo (third respondent herein), Kabui daughter of Gikonyo (fourth respondent herein), Beth Wambui (first appellant herein), Wanjiru daughter of Gikonyo, Wanjiku daughter of Gikonyo, Gathoni wife of Gikonyo (first respondent herein) and James Karugu Gikonyo (2nd respondent herein). He gave each of the deceased’s wife half share of land in question.

The plaintiffs (the appellants herein) lodged an appeal which was heard by Platt J (as he then was). The appeal was allowed. He directed that proceedings be instituted by either of the parties for the determination of the validity of the purported wills. The proceedings then started in the High Court brought by the present appellants which proceedings are the subject of this appeal.

There is no dispute that the deceased died possessed of a piece of land known as Gatamaiyu/Gachoiri/208 comprising of approximately 11 acres. From the evidence, the deceased invited close relatives and caused documents to be written which purported to dispose of his said land. One of the documents is dated 12/5/78 and marked ‘B’. It is written in Kikuyu.

It is translated as:

“I Gikonyo s/o Chege have shared (given to Karugu s/o Gikonyo two acres of land (2 acres) on the eastern side. The western side belongs to Wangui Gikonyo.  On the higher side beyond the road it belongs to Thanua Gikonyo. That is how I have shared.”

According to the evidence the document was written by James Mungai (PW4).The document is not witnessed, it is merely thumb-printed by the deceased. The other document marked ‘A’ was written on 15.5.78 by Mbugua Njoroge (PW3). It is also written in Kikuyu. The translation reads:

“I Gikonyo Chege, I have given Thanua the side beyond the road on the higher ground, the land which is surrounded by the road.

Witnesses:

1. James Mungai – signed

2. Mbugua Njoroge – signed

3. Receiver of the land – Beth Thanua

I have received it

Giver Gikonyo Chege – Thumbprint

The number of the land was Gachoiri Gikonyo Chege No 208 10.10 acres.”

The respondents have disputed these documents and claim that the deceased could not have made the will without informing them. These documents were made few days before the death of the deceased. They were read at the funeral of the deceased. Mbugua Njoroge (PW3) and James Mungai (PW4) gave evidence that they were instructed by the deceased to write them. Both of them witnessed the document dated 15.5.78. The learned judge rejected both documents and said:

“ In view of the foregoing I am of the opinion that the documents marked ‘A’ or ‘B’ if made, were so made through coercion by the plaintiff’s herein and are not capable of taking effect as they are all void. On a more serious note I doubt if the documents were written with chief’s consent.”

Dealing with coercion first I cannot find any evidence on coercion. Both PW3 and PW4 state that they were called by the deceased to his house and he directed them to write the first document marked ‘B’ on 12.5.78. PW4 said that when he wrote document ‘B’ on 12.5.78 the appellants (plaintiffs) were not present. However, they were present when document ‘A’ was written on 12.5.78. Document ‘A’ was written when first plaintiff insisted that a second document should be written. It is conceded by Mr. Kamonde, the advocate for the second defendant that the latter document of 15.5.78 is an explanation of what the father had done with an earlier document of 12.5.78. If when writing the first document the plaintiffs were not there and when writing the second document which was an explanation of the first document were present, I do not construe this as coercion. Coercion could be implied if when writing the first document plaintiffs were present and that they dictated what was written and then the deceased made to sign. It is only under those circumstances coercion could have been real. Yet according to the witnesses, the deceased called the writer and on his free will directed the document to be written and be taken to the District Commissioner’s office for safe keeping though this was not done. There was no coercion in writing both documents.

The judge doubted as to why the first plaintiff who was married should be preferred to the other daughters who were also married and whether the document was written with the consent of the chief. There is no requirement either under the Wills Act (now repealed), the Indian Succession Act of 1865 (also repealed) or the Succession Act cap 160 that in writing wills consent of the Chief has to be obtained. Even under customary law and practice no requirement that a Chief has to be consulted even in making an oral will. This is a misdirection.

On the question of preference, it is a well known fact that parents give to their children according to their intimate relationship. Some children carry more burden of their parents than others. If a parent wishes to reward his or her child for such services through love and affection other children or members of the family have no right to question the deceased’s right.

Such gifts can be given during the deceased’s lifetime or by a will. There is no evidence here that the deceased could not have rewarded the first plaintiff as he wished. In fact he did so in writing the first document in the absence of the plaintiffs. The deceased directed what his intentions were regarding the disposal of his land.

Coming back to the validity of the documents the respondents have challenged it that it is not in the form of a will. One thing is clear, that is, these documents were written by lay people in the village. If they have the essential facts according to they should be accepted as being valid wills. Section 50 of the Indian Succession Act 1865 (now repealed) is copied word for word in the Law of Succession cap 160. I now reproduce the section.

Section 11 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 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.”

Respondents claim that the deceased could not make a will without the knowledge of the second respondent and further that the deceased was very ill. Even in cases where a person is very sick or mentally sick at the time of executing a will, it cannot be a ground for nullifying the will because there are lucid periods where a person becomes normal and can give instructions for writing the will. It could also be executed within those periods. Vijay Chandrakani Shah and Others v The Public Trustee CA NO 63/84 (unreported). Witnesses in this case have stated that at the time of writing these documents the deceased was normal. If he was not normal they could have stated so or described the condition of the deceased.

There is nothing that can be found in the evidence to the contrary. In my view the deceased was normal but may have been too weak when he gave instruction to write these documents. In fact he gave the reason for wishing to have the document written as he felt that he was not going to live long.

Document ‘B’ dated 12.5.78 though shared out land and signed by the deceased, does not comply with the requirement of a will as such. The document is not witnessed as required. But it expresses the deceased’s wishes. Couldn’t it be regarded as an oral will? There is nothing to prevent a person making an oral will disposing of his property. In Cotran’s book (Kenya 2) at page 15 it is stated:

“A person may make a will in his old age or on his death bed. He calls a meeting of all his close relatives from his mbari, other muhiriga relatives and close friends and declares orally how his property is to be distributed item by item, and also declares who shall be his muramati. No other formalities are required, but the will is invalid unless the above witnesses (the number is not specified) are present.”

According to the writer, it does not appear whether it matters if the children and wives are not present. Under Section 8 and 9 of the Law of Succession (cap 160) provides:

“8. A will may be made either orally or in writing.

9. (i) No oral will shall be valid unless:

(a) It is made before two or more competent witnesses and

(b) The testator dies within a period of three months from the date of making the will.

Provided…

(2) No oral will shall be valid if, and so far as, it is contrary to any written will which the testator has made, whether before or after the date of the oral will, and which has not been revoked as provided by sections 18 and 19.”

Section 18 and 19 deals with revocation of the wills.

In Re: Rufus Ngethe Munyu (Dec’d) Public Trustee v Wambui [1977] KLR 137. Where the deceased gave instructions of the disposal of his properties to his wives and children, and that those instructions were written on a piece of paper by the person recording it, the deceased having died few days later, Harris J held the writing disposing the property to be an oral will.

In the present appeal, the deceased gave instructions which were written and signed by him in presence of two witnesses. He died few days later, i.e May 30, 1978. In this case, on the authority of Re: Rufus Ngethe Munyua and sec 8 and 9 of the Law of Succession Act I hold the document dated 12.5.78 capable of being construed as an oral will.

Regarding the second document it is witnessed by two witnesses who give evidence of its execution. The fact that it is not in the form presentable to lawyers, it has all the ingredients required by law. The fact that it does not follow that form, it should not be rendered invalid. The fact that the name of the beneficiary is stated as a form of receipt though she did not sign would not invalidate the document. The fact that the deceased thumbprinted last the witnesses having signed first would also not invalidate the document. The testator does not necessarily have to sign it, it could have been signed on his behalf and still be a valid will. In my view, the document marked ‘A’ of 15.5.78 would be a valid will to dispose part of the deceased’s land which is defined as situated on the upper ground an bordered by road in a V-shape of whatever acreage it may be to the first appellant, Beth Wambui.

Taking the documents together, one as a valid will and the other an oral will and taking the valid will document as a codicil that explains the earlier oral will, I have come to conclusion that the deceased disposed of his land in terms of these two documents.

The will is not challenged on the basis of giving anybody who is not entitled to the property but on its validity which I have held to be valid written and oral wills.

I would allow this appeal with costs in this appeal and in the High Court. I would direct that an administrator be appointed by separated proceedings to distribute the land to the beneficiaries according to law.

As Apaloo JA and Masime Ag JA also agrees the order of the court is as stated above.

Apaloo JA. The late Gikonyo Chege owned a piece of land registered as Gatamanyo/Gachoiri/208. He was married to two women who are both parties to these proceedings. He also had a number of children. About ten years before his death on the May 30, 1978, he had been in ill health. It was said he had problems with his chest and one leg. He also had a failing eyesight but was otherwise compos mentis.

On May 15, 1978, he summoned his nephew Mbugua Njoroge to his home and requested him to write him down his wishes. It seems clear he intended this to be a disposition of his land on his demise. Njoroge wrote down his uncle’s wishes. Just over a fortnight afterwards, that is on the May 30, 1978, he passed away. There is little doubt that what the deceased caused his nephew to put down in writing were his testamentary wishes.

Accordingly, if it was properly executed and attested according to law, it would be a valid will which can properly be admitted to probate. The deceased was himself illiterate. So when his wishes were recorded, they were read back to him. When he signified his assent to what was read to him in Kikuyu language, he affixed his thumbprint to it. It was then attested by James Mungai and the writer Mbugua Njoroge, both of whom were present. No executor was appointed under the will. One of the beneficiaries by name Beth Wambui sought to propound the will and have it admitted to probate. She was opposed by her step mother and some of her brothers. They deny the validity of the will.

In so far as the issues fought in these proceedings involve any proposition of law, it is that the party who propounds a will must show that it is intended to be the last wishes of a competent testator and that he had a sound disposing mind. And further, that the will was executed and attested in the manner required by law. Thereafter, the burden shifts on those asserting the invalidity of the will to prove it. On the facts, it is clear that the deceased was in sound mind. Indeed, nobody suggests that he was other than compos mentis. It is also not in dispute that the land he sought to dispose of, was his own self acquired property. Both Mungai and Njoroge testified that what, was recorded was a true expression of the deceased’s wishes and that both of them witnessed it by signing it in his presence. That evidence was not contested. So prima facie, the will was executed and attested in accordance with section 50 of the Indian Succession Act 1865, as applied to this country by the African Wills Act, 1961.

That being so, the onus shifts on the respondents to show that the will was invalid. The 1st respondent also gave evidence. She denied that the deceased left a will and although some document purporting to be the deceased’s will was read at the funeral, she did not agree with it. All the other respondents denied that the deceased made a will and their reason seems to be because they had no knowledge of their father making a will in his lifetime. They conceded though that some document was read at his funeral but they denied the Deceased in truth made it.

It seems plain that the respondents led no evidence to show the invalidity of the will. Their objection was founded principally on their disappointment either because of the meagre nature of the bequest they received or because they received no benefit. They regarded themselves as objects of their father’s bounty. In those circumstances, the appellant  as shown the document of May 15, 1978, to be a valid will of her late father. The learned Judge however thought otherwise. Although he found no fault with the evidence of the execution and attestation of the will, he said it was invalid because it was made as a result of coercion of the Deceased by the appellant or by her importuning him.

With respect to the learned judge, neither ground for invalidating the will is supportable on the evidence. The only evidence is that the Deceased made what he believed to be an earlier will on May 12, 1978. He made a bequest of 2 acres of land to the 1st Appellant. When her father told her of the gift, she said she could not believe unless another document was made. To show his good faith, the Deceased caused the will of May 15, 1978 to be made. In it, she received the same bequest that she received in the earlier will. It was only in cross-examination that Mungai, one of the attesting witnesses to the will of May 15, said the 1st Appellant persuaded her father to make this later will. Persuasion is not the same thing as coercion. A man is persuaded to act in a certain way if he is convinced to do so but he is coerced if he is constrained to do the same without the exercise of his own volition.

At all events, it would be less than accurate to say the appellant Beth persuaded her father to make a will in her favour. The truth is that on May 12, 1978, the deceased made an earlier will in which he bequeathed her 2 acres of land. When her father told her of his bequest, she expressed disbelief. Her father therefore agreed to execute a fresh will at her requestto convince her of his bona fides. In this later will, she received the like bequest that she got under the first will. In those circumstances, to say that the 1st Appellant persuaded her father to make a will in her favour, will be plainly contrary to the facts. Even if she did this, the testament will not be invalid on that account. In my opinion, the will of 15.5.78, has been shown, to be the valid testament of the late Gikonyo Chege and is entitled to be admitted to probate.

As I said, the deceased also made his testamentary wishes known earlier, that is, on May 12. On that day, he invited James Mungai and the late

Mbugua Kamonje to his home. He then told them that he did not think he would live much longer and would make a document which they should keep with the DC Mbugua was to put into writing his wishes. He then distributed his land to named individuals. Mbugua recorded his wishes and had it typed the next day. He then returned to the Deceased with it. The latter proceeded to thumbprint it.

It is common ground that the execution of that document did not comply with the requirement of section 50 of the Indian Succession Act and cannot be pronounced as a valid statutory will. But it was put forward as a valid oral will made in accordance with Kikuyu customary law. The question then is; what are the customary law’s requirements of a valid oral will? Cotran shed some light on this in his Restatement of African Law Kenya 2 Law of Succession P15-16. He says:

“A person may make a will in his old age or on his death bed. He calls a meeting of all his close relatives…and close friends and declares orally how his property is to be distributed item by item.”

In Re Rufus Ngethe Munyua (Deed) & Public Trustee v Wambui [1976] KLR 137 Harris J held

that “under Kikuyu customary law, a valid oral will may be made by a testator on his death-bed in the presence of his close adult relatives by declaring how his property is to be distributed. The inability of close relatives to attend will not invalidate the will.”

In Mbugua v Mbugua Civil Appeal No 23 of 1982 dated May 20, 1983, Chesoni Ag JA said the number of close relatives and friends who should be present at the making of the will is unspecified. It may be one or two. The only other apparent requirement, is that the testator must be of sound mind. According to Chesoni JA he must not at the time of giving his instructions be “drunk or insane or otherwise incapable of making a valid will.”

How do the facts of this case fit the customary requirement? The late Chege was not on his death-bed when he made his oral testamentary wishes. But he was close enough to it. He died 18 days afterwards and clearly had a premonition of his impending death. That is why he told Mungai and Kamonje that he felt he would not be living much longer. He then told them how they should distribute his land apparently, the only real property he had. It is not clear whether Mungai and Kamonje were his blood relatives or just friends. If they are not related to him on grounds of consanguinity, they must be persons in whom he reposed confidence. Chesoni JA thought one or two of such persons would do. The Deceased was of sound disposing mind and the land he sought to distribute, was his own property.

The fact that his wishes were reduced into writing does not make them any less binding. In a sense, it is better as the matter will be put beyond bad faith and treacherous memory. Indeed the facts of this case are on practically all fours with the Re Rufus Ngethe case cited supra. And lastly, the beneficiaries named in the May 12 will, are his wives and some of his children. – persons who would be the natural, objects of his bounty. I think the testator’s wishes taken down by Mungai on May 12, and thumbprinted by him the next day, was a valid oral will made in accordance with Kikuyu customary law. The property must devolve in accordance with that will and the later statutory one made on May 15, 1978. In as much as the learned trial judge held otherwise, I think, with respect, he slipped.

Accordingly, I would allow the appeal and set aside the judgment appealed from. In lieu of that judgment, I would make a declaration that both the will of May 15, 1978 (Exhibit A) and that of May 12, 1978 (Exhibit B) are valid. I accordingly agree with the order proposed by Gachuhi JA.

The respondent must pay the costs of this appeal here and in the Court below.

Masime Ag JA. I have had the advantage of reading in draft the judgments of my Lords Gachuhi and Apaloo JJ A. I wish to respectfully concur with their analysis of the evidence rendered to the High Court and their conclusion that the deceased validly disposed of his real estate to his lawful heirs consequently the learned trial Judge misdirected himself on the evidence and erred in holding that the deceased’s wills were invalid. I would therefore agree with my lords that this appeal should be allowed with costs in both the superior Court and this Court. Finally I would agree with the direction by my Lord Gachuhi that appropriate proceedings be taken for the appointment of administrators to carry out the subdivision and transfer of the suit premises to the rightful heirs.

Dated and delivered at Nairobi this 15th day of January , 1988

J.M GACHUHI

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JUDGE OF APPEAL

F.K APALOO

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JUDGE OF APPEAL

J.R. O NYARANGI

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JUDGE OF APPEAL