In re Estate of Julius Mimano (Deceased) [2019] eKLR

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

(FAMILY DIVISION)

SUCCESSION CAUSES NOS. 417 OF 2005 AND 1345 OF 2014

IN THE MATTER OF THE ESTATE OF JULIUS MIMANO (DECEASED)

JUDGMENT

1. This cause relates to the estate of Julius Mimano, who died on the 12th November 2004. Two succession causes were initiated in
respect of his estate, in HCSC Nos. 417 of 2005 and HCSC No. 1345 of 2014.

2. In HCSC Nos. 417 of 2005 representation was sought by Rose Mimano and Nigel Havergal Shaw, the executrix and executor,
respectively, named in the will of the deceased allegedly made on 23rd January 1998, through a petition for grant of probate dated
17th February 2005. A grant of probate was made in the cause on 12th May 2005. The grant of probate was confirmed on 21st
February 2006, vide an application dated 14th November 2005.

3. On 7th December 2010, a summons was lodged in HCSC Nos. 417 of 2005 by Ian Mimano, a son of the deceased, hereinafter
referred to as the applicant, premised on sections 26 and 83(h) of the Law of Succession Act, Cap 160, Laws of Kenya, and rule 45
of the Probate and Administration Rules, seeking reasonable provision and injunctions to restrain the executors from dealing with
the entire estate. The applicant complained that the will of the deceased had not made adequate provision for him, and that the
executors had mismanaged the estate to his detriment. He complained that the executrix, the widow of the deceased and also the
applicant’s mother, had sold assets and removed him as a director of some of the companies contrary to the wishes of the deceased.
The said application was withdrawn on 21st December 2010.

4. The applicant filed another application herein on 25th June 2014, principally seeking revocation of the grant of probate dated 12th
May 2005, among other orders. The said application was premised on sections 26, 27, 45, 53, 66, 76, 83, 94 and 95 of the Law of
Succession Act. He complained that the will the subject of the cause had not adequately provided for him, and that he was not
involved in the process leading up to the confirmation of the grant. He stated that the estate was being plundered by the executrix in
collaboration with strangers, and he was seeking to have it protected from wastage, and to have it strictly distributed in accordance
with the Kenyan will. He complained that he had been completely excluded from the management of the estate. He further claimed
that there was a foreign will, disposing of property in London, which had not been disclosed.

5. The executrix responded to the application vide her affidavit sworn on 8th December 2014. She conceded that there was a foreign
will, but said that there was no free property abroad which could be dealt with under that will, and in any event the deponent had not
been made an executrix or trustee of that will. She added that even if there was a dispute about the foreign will, this court would
have no jurisdiction on its provisions. She stated that even though the applicant had alleged that some property had been left out of
in her papers, he had not given any particulars of the alleged property. The response also dealt in detail with some of the other issues
raised in the application of 25th June 2014.

6. The applicant filed another summons for revocation of the grant of probate of 12th May 2005. The same was dated 2nd July 2015,
and was lodged at the registry in HCSC No. 417 of 2005. He sought several other orders besides the principal prayer for revocation
of grant. He essentially challenged the validity of the will, which he said was not disclosed to him until 2007. He claimed that the

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will bequeathed property to the children, and then revoked the bequest. He further claimed that the will left out a considerable
number of assets of the estate. He claimed that he did not know the persons who attested the will, and that the signatures alleged to
be of the deceased were inconsistent, and were manifest forgeries. He accused the executrix of exercising undue influence on the
deceased so as to make a will which made her the sole and exclusive beneficiary of the estate. He claimed that the will did not
reflect a true representation of the true and final testament of the wishes and intentions of the deceased. He also alleged that the will
was inconsistent, contradictory and self-defeating as to raise grounds of authenticity. He said that the will did to make reasonable
provision for all the children of the deceased. He asserted that the proceedings to obtain the grant were defective to the extent that
they were based on an invalid will. His other claim was that the executrix had proceeded with administration to the exclusion of the
executor. He accused the executors of failing to furnish him with an inventory and full account of the assets and liabilities of the
estate of the deceased. He complained that should the executrix be not restrained she would plunder the estate.

7. To that summons the executrix swore an affidavit on 25th January 2016 in reply. She stated that the applicant was aware of the
said will way back in 2004 when she and the applicant discussed the will after the deceased died, and he never complained that the
same had made her the sole beneficiary. She averred that the applicant had even executed a deed of appointment in 2009 to
substitute Nigel Shaw as executor. She denied that the deceased had given oral instructions with regard to his estate. She asserted
that the applicant was aware of the probate proceedings as far back as 2005, and was guilty of laches in contesting the validity of the
will ten years later. She stated that the will made her a sole beneficiary, and in the event she predeceased the deceased, the applicant
and her siblings were to share the estate in the manner stated in the will. She asserted that the will did not leave out any assets, and
that the deceased, at the time he made the will, had a good reflection of the property he owned, and he got into great detail on how
he wished his estate to be distributed and administered. She stated that when he made the will in 1998, all his children were adults.
She stated that the fact that the witnesses to the will were unknown to the applicant, or even to her, was not good ground for
invalidation of the will. She denied that the signatures on the will were not genuine, and that she had exercised undue influence on
the deceased at the time of making the will. On rendering of accounts, she asserted that as the will made her a sole beneficiary, there
was no requirement that she should account to anyone, the estate had been fully administered and therefore the call for accounts was
coming too late in the day.

8. HCSC No. 1345 of 2014 was initiated by the applicant. He caused a citation dated 19th May 2014 to issue directed at the
executrix, Charlotte Mimano and Yvonne Mimano. In the affidavit he swore on 19th May 2014, he averred that the citees were not
cooperating with him to take out a grant of letters of administration in respect of the estate of the deceased. He averred that they had
declined or refused to sign the necessary consents or to discuss any issue relating to the estate. He averred that the estate was going
to waste for lack of representation, and was being plundered by strangers, and that there was need for a grant of letters of
administration of the estate to issue to facilitate protection and preservation of the estate. He also lodged a summons dated 16th June
2014, seeking to be allowed to administer the estate, and also seeking a variety of other prayers, including that a grant of probate
letters of administration if any already issued to the citees be annulled.

9. Of the three citees only the executrix entered an appearance to the citation, dated 17th June 2014. She swore an affidavit in reply
on 18th June 2014. She disclosed that the deceased had died testate having made a will, and probate of that will had been granted in
HCSC No. 417 of 2005, and confirmed. She averred that the citor was aware of the proceedings in HCSC No. 417 of 2005, as he
had even filed an application in that cause sometime in 2010, which he subsequently withdrew. She accused the citor of withholding
that information from the court.

10. Directions were given on 18th June 2014 on the basis that the citees although served had failed to attend court. The citor was
authorized to petition the court for full grant of letters of administration intestate within a specified period of time.

11. The first citee, the executrix, reacted to those directions through an application dated 19th June 2014. The citee averred that she
had entered appearance, and filed an affidavit in response. The matter was not on the main cause list for 18th June 2014, and that
explained why she did not did not attend court. Later that day she learned that there was an addendum to the main cause list where
the matter was listed, but by then the same had been placed before the Judge and orders made. She sought stay and setting aside of
the said orders. The application has not been heard to date, and no grant has been made in the matter as the citor has to date not
lodged a petition. The said cause would appear to be in limbo as at the date directions were made for the two files to be put together.

12. Directions were given on 9th December 2014 that the two applications, dated 25th June 2014 and 12th May 2015, filed in HCSC
No. 417 of 2005, would be disposed of simultaneously by way of oral evidence.

13. The oral hearing began on 13th July 2013, with the applicant, taking the stand. He testified that after the deceased died the family

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tried to discuss the estate but he was not able to get a clear status of the same. He stated that sometime in 2009 he wrote to the
executors of the will seeking a meeting to discuss the issue relating to the Karen property. He said that he saw the will, and its
contents were brought to his attention. He stated that the persons who attested the will were unknown to him. He said that the will
did not provide for the children of the deceased. He stated that clause 10 of the will had gifted him with a property known as LR
10095/4 and Plot No. 41-43 Baba Ndogo. He complained that the said property had not been transferred to him by the executrix.
Clause 13 on the other hand provided that LR 10095/3 Karen was to be held in trust for the deceased’s grandchildren according to
him, although he later said that the same had been bequeathed to the executrix. He stated that Nyeri/Aguthi/899 had not been
bequeathed to him by the said will. He conceded that he was asked to sign an annex to the will after the executor resigned, which
document was meant to bring him in as a trustee. He stated that the daughters of the deceased were not provided for under the will,
adding that they were not complaining as they were being taken care of by the executrix. He stated that the deceased had during his
lifetime severally stated his wishes over the assets, saying that it was ridiculous for the executrix to assert a will that made her the
sole beneficiary. He stated that there was a foreign will made on 25th June 1998, which disposed of foreign property. He stated that
LR 10095/4 had been acquired before his birth, and registered in the names of the deceased and the executrix as joint tenants. He
asserted that he was unaware that the principle of survivorship applied to it, which would have made the executrix the sole owner
thereof. He stated that clauses 10 and 13 of the will needed to be implemented. He asserted that clauses 5 and 6 of the will made
provisions that were confusing and it was for that reason that he was inviting the court to interpret the will. He said that the will was
disorganized, which did not, in his view, reflect the character of the man. He said he got to know of the will a month or so after the
demise of the deceased. He discussed it with the executrix and she gave him a copy of it. He said that those were the circumstances
under which he got to know about it. He stated that the executrix and his sisters mourned for rather long, he left them to heal, and
took a job overseas. He was, therefore, not in the picture for a long time on what was happening with regard to the estate. He said
that he was not party to the reading of the will by the advocates. He also adduced evidence geared to support his case for the other
prayers in his applications.

14. The next on the stand was Charles Mathai Matu, a brother-in-law of the deceased and a brother of the executrix. He testified that
the deceased was close to him. He described him as a man of detail, who did everything strictly. He was said to have had loved his
children equally, adding that the applicant had not abandoned him during illness. A few days before he died, he allegedly sent the
witness to Nyeri to call his brother, Karue. After he died, the executrix was said to have kept everybody off. He contacted her and
asked her whether the deceased had left a will. She reportedly said that there was none, and that she did not have the time to search
for it. She reportedly only produced the will in 2009 after the applicant took her to court. He stated that he enquired as he believed
that there was a will. He said that he did not believe that the deceased would have left everything to his wife. He stated that the
distribution of the property was not done properly.

15. The next on the stand was Livingstone Karue Mbuthia, the deceased’s brother. He testified that the deceased had called him to
his home two weeks before he died. The deceased allegedly told him that he had made his wish clear both orally and in writing, and
that he had distributed his property amongst his wife and children. He allegedly said that he had left a will with his lawyer. He stated
that the deceased did not wish to disinherit his children, adding that that would have been against tradition and culture. He said that
the deceased did not leave a valid will. During cross-examination, he said that the deceased had said that all he wanted done had
been put down in a will written in 1998. He said that he never saw the 1998 will.

16. Julius Mwangi Macharia followed. He was a farm manager for one of the estates agricultural assets. His testimony did not touch
on the evidence around the making of the will, but largely revolved around the property that he managed.

17. The applicant’s last witness was Mohamed Nyaoga. He was an advocate of this Court who had acted for the applicant at one
point in the matter. He said that he had seen the will, and had read clause 5 thereof. He confirmed that the will of the deceased had
made the executrix the beneficiary of the estate. He conceded that he had prepared and filed, on instructions of the applicant, an
application dated 6th December 2010, for reasonable provision out of the estate, on grounds that the executrix had been made a sole
beneficiary and the applicant had not been adequately provided for. He stated that the application also sought interpretation of the
will, but did not challenge the authenticity of the will. He stated that he withdrew the application after the parties expressed
willingness to negotiate. He said that the withdrawal was also informed by his feeling that it was not wise for the parties to fight it
out in court.

18. On the part of the respondent, only one witness testified, the executrix herself. She stated that the deceased had told her about
the will before he died, but she did not see it until two weeks after the burial. She later said that she accompanied the deceased as he
went to see his advocates, Kaplan & Stratton. The deceased had told her that he was going there to sign a will. She could not recall
the date, but she said that she did see him sign the will. When shown a copy of the will she identified the deceased’s signatures on

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the document. Two women were invited to attest his signature, and he saw them sign on the will. She was allegedly shown the will
by an advocate called Mr. Nigel Jeremy, but she did not read it. She later said that she knew the contents of the will as the deceased
had come home the previous day with a copy, she read it and he explained its contents to her. The said Mr. Jeremy called her to get
the will after the deceased died. She said that she sent the applicant to go and met Mr. Jeremy over the will, and the applicant did go
and met Mr. Jeremy. She said that she did not call a family meeting to discuss the will. The two daughters were not keen on talking
about it, even though they had said that they were aware of the will for the deceased had told them about it. She stated that the
applicant shortly left the country to work abroad, and was away when she initiated the instant cause. She said that she had been
informed by the deceased about the visit to him by her brother and brother-in-law two weeks before his death. She said that she was
not told about what they discussed, and said that she did not discuss with them about the will after the deceased’s death. She
conceded that she did not discuss with the applicant about the application for representation, nor about confirmation of the grant.
She asserted that the will made her a sole beneficiary of the estate. She stated that the deceased, in the will, identified the assets that
he gave to his children and grandchildren. She conceded that she had not given effect to the gifts to the children. She also gave
evidence on the other aspects of the application, relating to wastage of the assets, accounts, injunctions, among others.

19. At the end of the oral hearing, the parties were directed to file written submissions. Both parties herein complied. The written
submissions were highlighted on 15th October 2018.

20. I have looked at the pleadings, the recorded evidence and the written submissions lodged by both sides. the issues that emerge
for determination revolve around validity of the will on record. The determination of the rest of the issues will depend on the
outcome of the resolution of the question of the validity of the will.

21. I will first deal with the issue of the validity of the alleged will. The validity of a will is dependent on two principal factors,
namely the capacity of the testator to make a will at the material time and compliance with the formal requirements for the making
of a will.

22. Section 5 of the Law of Succession Act, deals with capacity to make a will, and of testation. The relevant provisions state as
follows -

‘5(1). … any person who is sound of mind and not a minor may dispose of his free property by will …

(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.’

23. The essentials of testamentary capacity were laid out in Banks vs. Goodfellow (1870) LR 5 QB 549, where the court stated that -

‘A testator shall understand the nature of the act and its effects, shall understand the extent of property of which he is disposing;
shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no
disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties-that no
insane delusion shall influence his will in disposing property and bring about a disposal of it which if the mind had been sound,
would not have been made.’

24. In this instant suit, the issue of testamentary capacity was not raised. It was not argued that the deceased did not have the
requisite soundness of mind for the purpose of making the impugned will. The matter of the state of mind of the deceased at the time
he allegedly made the impugned will in 1998 was, therefore, not relevant. Evidence was led as to the fact the deceased was ill, had
been to London for treatment and died after three days of hospitalization, however that evidence related to 2004, the year of his
death rather than 1998 when the will was allegedly made. The provisions of section 5 of the Law of Succession Act, which relate to
soundness of mind, are not altogether relevant for the purpose of what I have to determine.

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25. The other provision related to testamentary capacity is section 7 which states –

‘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.’

26. Section 7 covers situations where the testator at the time of making the will is of the requisite testamentary capacity. That would
be to say that the testator was of age and of sound mind at the material time, but the circumstances of the making of the will detract
from or undermine its validity. Fraud would arise in cases where the making of the will is procured by deceit or similar underhand
methods. Coercion would refer to circumstances where a person is literally forced to make a will in a certain way, either under
duress or threats to life or limb. The will, though made by the deceased himself, in terms of the same being executed by him, would
not reflect his will or wishes or intentions in the circumstances, but those of the person driving him to make it in that particular way.
Importunity refers to what is often described as undue influence. In such cases there would be no coercion or force or duress as
such, but pressure would be brought on the testator of such nature that he cannot resist. He would bend to the pressure, not so much
because he is persuaded or convinced that he should make his will in such manner, but because he would be tempted to rid himself
of the pressure by capitulating to it. Mistake would refer to cases where the testator signed the wrote document, such as that meant
for someone else believing it to be meant for him.

27. From the material before me, it is plain that the applicant anchored his case on section 7 of the Law of Succession Act, more
specifically on the allegation that the will was made under suspicious circumstances. The allegation that a will was made under a
cloud of suspicion raises the question of fraud. The fact that the circumstances of the making of a will were suspicions would
suggest that the making of the will was procured by fraud or fraudulent means. The principle being that a testator must not only
know the contents of the document that he signed as his will, he must also have approved of those contents. The approval being
indication that it reflected his wishes and intention. The suspicion would arise if it appears from the circumstances that the testator
did not either know of the contents or, knowing of the contents, did not approve them. It would particularly arise in cases where the
person propounding the will takes a substantial benefit under the will.

28. The applicant has cited several decisions to support his contention. The Court of Appeal stated the principle on knowledge and
approval in John Kinuthia Githinji vs. Githua Kiarie and others civil appeal number 63 of 1984, where it was said that where, on the
face of it, the will appears to have been properly executed by a person of age and sound mind, a presumption of due execution
arises, but that presumption may be displaced by circumstances emerging from the evidence adduced which tend to counterbalance
the presumption. On the other hand, the principle of suspicious circumstances has been stated and applied in several local decisions
such as Vijay Chandrakant Shah vs. The Public Trustee civil appeal number 63 of 1984, Mwathi vs. Mwathi and another
(1995-1998) 1 EA 229, Susan Wangui Gakuha vs. Stephen Gakuha (2016) eKLR, Wanjau Wanyoike and four others vs. Ernest
Wanyoike Njuki Waweru and another High Court civil case number 147 of 1980, among others. According to the court in Karanja
and another vs. Karanja (2002) 2 KLR 22 and In the Matter of the Estate of James Ngengi Muigai High Court succession cause
number 523 of 1996, the burden of proof lies with the person alleging lack of knowledge and approval, and existence of suspicious
circumstances.

29. What emerges from the cases cited above is that the question of lack of knowledge and approval, and execution of a will under
suspicious circumstances, would usually arise in cases where the testator is in a weakened condition or state caused by either old
age, illness, disease, intoxication or the like. In Vijay Chandrakant Shah vs. The Public Trustee (supra) the will had been made in
hospital where the testator had been hospitalized, and when he was very sick with syphilis and diabetes. The suspicion arose from
the circumstance of the propounder of the will playing a key role in the execution of the will by the testator while in such condition
several days before he died. In Wanjau Wanyoike and four others vs. Ernest Wanyoike Njuki Waweru and another (supra), the
testator was elderly, ninety years old, and the propounder of the will played a key role in execution of the will, in which he was
named a principal beneficiary, three days before the testator died. The circumstances in Mwathi vs. Mwathi and another (supra)
were similar, a sickly testator being shuffled around just days to his death and made to make a will under those circumstances.

30. The testator must be in a weakened or feeble condition, and therefore easily amenable to manipulation. It also bespeaks undue
influence. For a person raising the issue to succeed, it must be established that the testator was in a weaken position on account of
old age or disease or intoxication, he made a will while in that condition, and the propounder of the will played the central role in
the process of the execution of the will. That role would include being the person in general control of the testator, being the one
who took him around, being the person who prepared the will or procured his own advocate to do it, or the person who took him to
an advocate of his own choice for that purpose.

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31. In the instant case, the applicant did not adduce any evidence as to the condition of the deceased as at the time of the execution
of the will. The testimonies of the applicant’s witnesses only talked of the deceased’s illness in the period just before his death.
None referred to the condition he might have been in 1998. Indeed, it would appear that in 1998, the deceased was in no weakened
or feeble physical or mental condition on account of either old age or disease or intoxication arising from consumption of either
alcohol or drugs. It would appear that he was in full control of his faculties at the time, and therefore not disposed to manipulation or
undue influence or undue pressure from any quarter, of such nature that he could not resist. Indeed, nothing on record suggests that
he was in such a condition in 1998 as to be overly dependent on others for decision-making, and general mobility and locomotion.

32. The other concern is that the principle revolves around the circumstances of the making of the will. It is the circumstances of the
making of the will that are suspicious or ought to raise suspicion. The focus should not just be on the large benefit accruing to the
propounder of the will, but rather to both the large benefit and the circumstances of the making of the will. The argument should be
that the benefit was large because the will was made in circumstances where manipulation or fraud or undue influence or pressure or
even coercion was brought to bear on the testator. There must be evidence of the intimate details of the making of the will, in terms
of what exactly transpired at the event of the making of the will.

33. In the instant case, the applicant pointed essentially at the fact that the executrix was the sole beneficiary of the will. He pointed
too at the fact that executrix accompanied the deceased to the advocates’ chambers for execution of the will, and that the deceased
disclosed the contents of the will to her. In the first place, I reiterate that there is no evidence that the deceased was at that point
weak due to old age or disease or intoxication. The advocate who prepared the will was not shown to have been the executrix’s
advocate, but that of the deceased himself. Secondly, it was not demonstrated that it was the executrix’s idea that the deceased made
a will, and, in a particular, suggested the advocate to draft the will and took the deceased to that advocate. It would appear that the
executrix merely accompanied her husband, the deceased, to the execution ceremony. There was nothing pointing to the deceased
being manipulated or coerced or pressurized by the executrix in anyway in the whole process. Indeed, the applicant led no evidence
at all on what exactly transpired at the chambers of the advocates where the will was executed. The only available evidence,
according to the record, is that from the executrix, and from what I have on record I do not find anything extraordinary about the
circumstances that would raise eyebrows.

34. The applicant pointed at the fact that the will did not provide for the children of the deceased, and especially himself, being the
only son of the deceased. According to him that was unusual, and raised suspicion. Section 5 of the Law of Succession Act gave the
deceased freedom of testation, to dispose of his property as he pleased to whomsoever he pleased. It was within his freedom or
discretion to determine who was to benefit from his bounty. The mere fact that a will leaves out children from benefit and benefits
the spouse substantially should not be ground for invalidation of a will. A party aggrieved by such provision has a remedy in section
26 of the Law of Succession Act, but not in the nullification of the will.

35. He called his uncles to adduce oral evidence on the thinking of the deceased as at about the date of his death. The two witnesses
did not refer to any concrete detail of what they discussed with the deceased about disposal of his estate. What was clear from one
was that the deceased told him that he had organized his affairs by making a will, while the other did not appear to have been told
something similar, but appeared to strongly believe that the deceased had died testate, and that a will existed. Their evidence was
that the 1998 will was inconsistent with Kikuyu norms, traditions and culture. I am not aware that the fact of such inconsistency
would be a ground for invalidating a will. I have not been directed to any law, whether in statute or judicial precedence, that would
support that proposition. In any event, whatever oral wishes the deceased might have expressed to them in 2004 could not, in view
of section 10 of the Law of Succession Act, override the provisions of the written will of 1998.

36. The other issue raised was that there were inconsistencies and contradictions in the body of the will. The applicant and his
witnesses sought to portray the deceased as a person who was very organized, and suggested that he could not possibly have made
the will which they described as disorganized. I have had occasion to peruse through the said will. It was professionally drawn by an
advocate, and was executed in his presence. I have carefully read through it and I have not come across any contradictions. In any
event, the mere fact of inconsistencies in a will does not render it invalid. Neither can the same be said to be prima facie evidence of
lack of knowledge and approval or existence of suspicious circumstances. Any issue surrounding interpretation of clauses of a will
is matter to be resolved by the court through construction of the provisions, not invalidation thereof. The Law of Succession Act
carries elaborate provisions, in the First Schedule, on construction of wills. There is also wealth of case law.

37. On the formal requirements of validity of a will, the law is in section 11 of the Law of Succession Act. It states -

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‘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 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.’

38. The applicant herein disputed the validity of the will on the grounds that the signatures on the will purported to be those of the
deceased were not his. He further asserted that the two persons who signed the will as attesting witnesses were unknown to him or
even the family. The executrix herein defended the will, she testified that she was present at the execution of the will, and witnessed
as the deceased and the attesting witnesses signed it. She did not call any witnesses to adduce evidence on the execution and
attestation of the will. I found that surprising, given that the purpose of having attesting witnesses is to get evidence on the process
of the making of the will should its validity be challenged. It is not clear why the executrix chose not to call them nor the advocate
who drafted the will, and before whom the will was executed.

39. It is the applicant’s contention that the signatures on the will were forged and did not belong to the deceased. He did not call a
document examiner to give expert opinion on the said signatures. The applicant did not express himself to be a qualified document
examiner, or handwriting expert, whose word on the matter could be given some weight. Section 109 of the Evidence Act, Chapter
80 of the Laws of Kenya placed the burden of proof on him. The provision states that: -

’The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided
by any law that the proof of that fact shall lie in a particular person.’

40. The applicant did not lead any evidence to demonstrate that the said signatures were not made by the deceased or that they were
forged. The burden fell on him to lead such evidence. The only evidence I have before me is that that was given in court by the
executrix. Her testimony was that she saw the deceased sign the document in her presence, and that of the attesting witnesses. Her
testimony was not shaken, in my view, on cross-examination. I am alive to the fact that the applicant submitted that there were
inconsistencies and contradictions in her oral testimony. I have noted the said inconsistencies, but in my view the same were minor.
The overall picture that emerged was that she accompanied the deceased to his advocates sometime in 1998 for execution of his
will, and he signed the same in her presence. She got to know the contents of the will either before or after the execution. I have
taken note of the fact that the executrix was an elderly woman, and she was discussing events that happened some twenty years ago.

41. In re Estate of Samuel Ngugi Mbugua (Deceased) [2017] eKLR, the court was of the view that

‘The allegation that the said signature was not that of the deceased amounts to a claim that the signature was forged or that fraud
was exercised in the procurement of the alleged will. That is to say that someone other than the deceased had affixed that mark on
the will with the intent of passing the same as the signature of the deceased. Forgery is a criminal offence. The applicant is in fact
imputing criminal conduct on either the person propounding the will or those who were involved in the operation that is purported to
have been its execution. The burden of proving forgery lies with the person alleging it. In Elizabeth Kamene Ndolo vs George
Matata Ndolo Nairobi Court of Appeal civil appeal number 128 of 1995 it was stated that the charge of forgery or fraud is a serious
one, and the standard of proof required of the alleger is higher than that required in ordinary civil cases.’

42. The allegation of forgery placed a heavy burden upon the applicant to prove beyond reasonable doubt, or at least beyond balance
of probability, that indeed the signatures were forged. He led no evidence on the alleged forgery. It is clear, therefore, that he failed
to discharge the burden of proof and thus his allegation of forgery cannot succeed. It was said in Karanja and another vs.
Karanja (supra_ that where a will is regular on its face with an attesting clause and the signature of the testator, a rebuttable

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presumption of due execution or omnia esse riteatta arises. In the context of the instant case, I am satisfied that the will before me
was regular on the face of it and the presumption applied to it, but the applicant did not rebut the presumption through concrete
evidence.

43. There was also the claim that the persons who attested the execution of the will were not known to the applicant. From the face
of the will it would appear that the two attesting witnesses worked as secretaries in the law firm where the will was drawn. The fact
that the applicant did not know them did not in any way affect the validity or the will. Indeed, it is not a requirement of the law,
section 11 of the Law of Succession Act, that the attesting witnesses ought to be persons who were known to the deceased or his
family. Nothing therefore turns on this.

44. The applicant claimed that he had not been provided for in the will as a son or child and for that reason, the will should be
declared null and void. The court in Curryian Okumu vs. Perez Okumu & 2 others [2016] eKLR was of the view that -

‘The legal position is clear however that failure to provide for a beneficiary in a Will does not invalidate a Will. Section 5(1) of the
Act gives a testator testamentary freedom as follows:

“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 …”

… This freedom of a testator to dispose of his free property by will is however is 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 Act. Section 26 provides:

“Where a person dies after the commencement of this Act, and so far as succession to his property is governed by the provisions of
this Act, then on the application by or on behalf of a dependant, the court may, if it is of the opinion that the disposition of the
deceased’s estate effected by his will, or by gift in contemplation of death, or the law relating to intestacy, or the combination of the
will, gift and law, is not such as to make reasonable provision for that dependant, order that such reasonable provision as the court
thinks fit shall be made for that dependant out of the deceased’s net estate.”’

45. The same emphasis was laid in James Maina Anyanga vs. Lorna Yimbiha Ottaro & 4 others [2014] eKLR where court held that

‘Failure to make provision for a dependant by a deceased person in his will does not invalidate the will as the court is empowered
under Section 26 of the Law of Succession Act to make reasonable provision for the dependant.’

46. It is true that the deceased had a freedom to dispose of his estate in a manner that was suitable to him. The freedom is the
essence of testate succession, and the fact that the will did not provide for some beneficiaries does not, and cannot, invalidate the
will. The remedy available to the applicant is to move to court appropriately under the provisions of section 26 of the Law of
Succession Act, seeking for a reasonable provision out of the estate.

47. In the upshot, the applicant failed to prove the grounds he alleged to invalidate the will and as such I hold that the will was valid.

48. When determining issues of revocation and annulment of grants, the courts ought to be guided by the provisions of section 76 of
the Law of Succession Act which say 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 an 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;

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c. That the grant was obtained by means of 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

e. ue 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 has ordered or
allowed; 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 has produced any such inventory or account which is false in any material
particular; or

f. The grant has become useless and inoperative through subsequent circumstances.’

49. In Jesse Karaya Gatimu Mary Wanjiku Githinji [2014] eKLR, the court was of the view that -

‘The grounds upon which a grant may be revoked or annulled are thus statutory and it is incumbent upon any party making an
application for revocation or annulment of grant to demonstrate the existence of any, some or all of these grounds, whatever the case
may be.’

50. The Court of Appeal in Matheka and Another vs. Matheka (2005) 2 KLR 455 laid down the following guiding principles
revocation of grant either on application by an interested party or by the court on its own motion. It was stated that even when the
revocation is by the court upon its 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 the making of a false statement or by concealment of something material to
the case or that the grant was obtained by means of untrue allegation of facts essential in point of law or that the person named in the
grant has failed to apply for confirmation or to proceed diligently with the administration of the estate. The Court of Appeal
affirmed the positon in Joyce Ngima Njeru & another vs. Ann Wambeti Njue [2012] eKLR where it held that

‘The central core of the ingredients required to be established under section 76 of the L.S.A. is that it is meant to be used as a
vehicle to attack and fault the process of either obtaining the Grant or inactive use of the Grant after being lawfully obtained in
circumstances where it has become useless. It is not meant to fault the decision on the merits.’

51. It was the applicant’s case that the grant of probate made herein on the 12th May 2005 and confirmed on the 21st February 2006
to the executors ought to be annulled on the ground that the same was obtained fraudulently. In her testimony the executrix stated
that the deceased had left a will and thus his estate was subject to testate succession. Having found that the deceased died testate,
and that therefore the will on record was valid, l find that the executors were the proper persons to apply for probate. I cannot fault
whatever they did. I shall therefore decline to revoke the grant.

52. The applicant alleged intermeddling on the part of the executrix, and restraining orders were sought to restrain the same. The
law on intermeddling is set out in section 45 of the Law of Succession Act, which provides as follows -

‘45. (1) Except so far as expressly authorized by this Act, or by any other written law, or by a grant of representation under this Act,
no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased
person.

(2) Any person who contravenes the provisions of this section shall -

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a. be guilty of an offence and liable to a fine not exceeding ten thousand shillings or to a term of imprisonment not exceeding one
year or to both such fine imprisonment; and

b. be answerable to the rightful executor or administrator to the extent of the assets with which he has intermeddled after deducting
any payments made in the due course of administration.’

53. According to section 79 of the Law of Succession Act, the estate of a dead person vests in the personal representatives. In this
cause, the deceased died testate. He named executors in his will, who have obtained probate to the will. It is the said executors in
whom the assets of the estate vested by virtue of section 79 of the Act. By virtue of the said vesting the said personal representatives
became entitled to exercise the powers that are set out in section 82 of the Law of Succession Act, which are akin to those of an
owner of the property. They can sue or be sued over the property, they can sell or enter into contracts in respect to it, among others.
The personal representatives have authority from the grant of representation they hold, whether it is one of probate or of letters of
administration, to handle estate property. In so handling it, in view of section 79 of the Act, it cannot be said that they intermeddle
with such property. In this cause the executrix holds a grant of probate, the assets vest in her by virtue of section 79 of the Act. I
note that her grant has been confirmed. She is entitled in law to handle the assets, and therefore the issue of her intermeddling with
the estate does not arise.

54. There is a prayer for production in court of an original foreign will, or, at any rate, a will the deceased made to dispose of his
foreign estate. The executrix conceded that there was such a will. She appeared to be unwilling to have the said will brought forth on
grounds that there was no free property to be dealt under it, and that the said will had not appointed the applicant executor or trustee
thereof.

55. The matter before me relates to the estate of the deceased herein. The applicant is an undisputed child of the deceased. In
intestacy, he would be entitled automatically to a share in the estate of the deceased, whether the assets making up the estate were in
Kenya or abroad. In testacy, even though there is freedom of testation, he would be justified to apply for reasonable provision out of
the estate should he be inadequately provided for from the will of the deceased. The applicant herein has a stake in the estate of his
late father, and is entitled to information relating to the said estate including being furnished with a copy of any will that disposes of
the deceased’s assets abroad, regardless of whether the said assets are free for distribution or whether the will appoints him executor
or trustee.

56. The applicant prayed for stay of other proceedings relating to the same estate, including HCSC No. 1345 of 2014. The parties
did not place before me pleadings in respect of any other cause or suit apart from the two files before me. I have perused through the
documents lodged in HCSC No. 1345 of 2014. The said cause was lodged in court during the pendency of the instant cause. The
two causes relate to the estate herein, yet in HCSC No. 1345 of 2014 the applicant did not disclose that there pended another cause
on the same estate, where a grant had been made and confirmed. The applicant was privy to that information as he had filed court
process in the cause. No doubt, HCSC No. 1345 of 2014 was filed in abuse of court process. It ought not have been filed in the first
place. I note I did not make any orders for its consolidation with HCSC No. 417 of 2005. I shall accordingly not stay it, instead I
shall order that the same be consolidated, for whatever it may be worth, with HCSC No. 417 of 2005.

57. The applicant sought that the executrix accounts for her administration of the estate. On her part, the first administrator took the
view that she was the sole beneficiary under the will of the deceased, and therefore the duty to account did not arise. She was
therefore not obligated to render accounts.

58. The personal representative of a deceased person holds a unique position in law. The property of the dead person is vested in
them by virtue of section 79 of the Law of Succession Act. The effect of section 79, read together with section 82 of the Act, is that
the same puts the personal representative on the same footing with an owner of the property, in the sense that he exercises the
powers that the legal owner of the property would have exercised were they alive, and suffered the same burden of duties and
obligations over the property as the legal owner would have been under were they to be alive. Yet, the property, although vested in
them by law, would not be theirs. Although the personal representative has legal title akin to that of an owner, the property does not
belong to them. They only hold it in trust for the eventual beneficiaries thereof, that is those named in the will, in cases of testate
succession, and those identified at confirmation of grant, in cases of intestacy. They would also be holding it for the benefit of
creditors and any other persons who might have a valid claim against the estate. That would mean that they are trustees of the estate,
and, indeed, the Trustee Act, Cap 167, Laws of Kenya, defines trustees to include executors and administrators. In the
circumstances, therefore, the personal representative would stand in a fiduciary position so far as the property is concerned, and

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owes a duty to the beneficiaries to render an account to them of their handling of the property that they hold in trust for them. The
duty to render accounts to beneficiaries arises from the trust created over estate property when the same vests in the personal
representative to hold on behalf of the beneficiaries.

59. Secondly, personal representatives administer estates on the strength of legal instruments made to them by the probate court.
The vesting of the estate of the deceased on the personal representatives by virtue of section 79 of the Act, flows from the
instrumentality of the grant of representation. Upon representation being made, the grant holder then becomes entitled to exercise
the statutory powers conferred upon personal representatives by section 82 of the Act and incurs the duties imposed on them by
section 83 of the Act. Additional powers flow from and duties are imposed by other statutes, such as the Trustee Act. Under section
82 of the Act, there are powers to enforce and defend causes of action on behalf of the estate, to sell or convert estate assets, to
assent to vesting of bequests and legacies on the beneficiaries, among others. Acts done or actions taken on behalf of the estate or
for the benefit of the estate would have to be accounted for. In other words, the personal representatives are bound to account for
every action they take on behalf of the estate, for they exercise the powers on delegation.

60. Section 83 of the Act imposes duties on personal representatives to pay for the expense of the disposal of the remains of the
deceased, to get in or gather or collect the assets of the estate, to pay for the expenses of the administration of the estate, to ascertain
and pay out all debts and liabilities, and eventually to distribute the assets amongst the persons beneficially entitled. The discharge
of these duties would naturally attract an account, in terms of the personal representative stating whether they discharged the said
duties and disclosing the expenses that they incurred in the process of discharge. In addition, section 83 of the Act has imposed a
positive duty on personal representatives to specifically render accounts at two stages. The first instance is in the first six months of
the administration. It is at this stage that they ought to account as to whether the spent any funds from the estate for the purpose of
disposing the remains of the deceased and, if so, how much. State whether they got in or gathered or collected or brought together
all the assets that make up the estate. The getting in of the estate is critical, it should precede settlement of debts and liabilities and
distribution of the assets. Indeed, these duties can only be discharged if there are assets sufficient to settle debts leaving a surplus for
distribution. It would also be from the assets collected that the estate would have a pool of resources for administration expenses.
Section 83(e)commands the personal representatives to produce in court a full and accurate inventory of the assets and liabilities, no
doubt generated from the exercise of getting in the assets and ascertaining the debts of the estate. There is also an obligation to
render an account of all their dealings with the assets and liabilities up to the point of the account. The second occasion for
rendering accounts is at the completion of administration. The duty is stated in section 83(g) of the Act. The object of the second
and final account is to give opportunity to the personal representative to demonstrate that they have complied with the duty in
section 83(f) of distribution of the estate to the beneficiaries. The duty to account on those two occasions is imposed by statute. It
envisages an account to the court, not even to the beneficiaries. The powers exercised by the personal representative’s flow from a
court instrument, the court is entitled to know whether those powers have been properly exercised, and whether the duties imposed
have been properly discharged. Being a statutory duty to account to the court, the personal representative does not have to wait for a
court order directing them to render account, they must render the accounts as a matter of course. The matter of the duty to render
accounts is so critical that default to do so is listed in section 76(d)(iii) of the Act as one of the grounds upon which the court may
consider revoking a grant.

61. The point being made here is that the law commands rendering of accounts by personal representatives whether the deceased
died testate or not. I have not seen any exception extended to any person or in respect of any circumstances. Whether the will the
subject of the proceedings named only one beneficiary that would not preclude the personal representative in that case from
complying with section 83(e)(g) of the Act. He must, even then, render accounts as required by that provision.

62. In the instant matter, the executrix does not appear to have rendered any accounts. She has therefore not complied with section
83(e)(g) of the Act. She should comply with it by rendering an account in terms of section 83, disclosing whether or not she has
discharged all the duties set out in section 83(a)(b)(c) and (f) of the Act. Crucially, from my perusal of the will, which I have found
to be valid, the executrix is not a sole beneficiary of the estate under the will as she claimed. The will does not convey any property
to her absolutely, as it largely places the estate in her hands as trustee on behalf of the children of the deceased, who shall ultimately
take the same as tenants-in-common in equal shares. The executrix relates to the property or the estate, according to the terms of the
will, in much the same way a surviving spouse enjoys a life interest in the net intestate estate in accordance with section 35(1)(a) of
the Act, and upon determination of the life interest the property devolving upon the children to be shared equally amongst them in
terms of section 35(5) of the Act. For all practical purposes, the executrix is a trustee and must render accounts in accordance with
the law.

63. I note that the executor, Nigel Shaw, renounced probate in October 2015 or thereabouts. The grant herein was made in 2005, and

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was confirmed in 2006. It is to be presumed that the executor has been in office all this while. He is bound to render accounts for the
period that he has been in office. I am indeed disappointed that there is default in rendering accounts in this case yet the executor is
an advocate of this court, who is to be presumed to have knowledge of the legal requirements of section 83(e)(g) of the Act. He
should have held the hand of the executrix so far as these matters were concerned.

64. The applicant dealt at length with the matters around management and administration of estate assets, specifically with an
intention to demonstrate that the executors had neglected and misapplied assets of the estate. I shall avoid venturing to address the
matter of wastage of estate assets at this stage before accounts are first rendered by the executors as it should be from that account
that the court would be in a position to know the extent of the estate after the executors have placed before the court a list of the
assets and liabilities that they have ascertained, a list of the assets of the estate that they have gathered or collected or got in, an
account of the income or revenue from income-generating assets of the estate, and an account of the monies that they have expended
from the estate on the deceased’s burial, estate administration and settlement of debts and liabilities. It would be only after that that
the court would be able to tell whether or not the executors properly executed their mandate as such. Further orders and directions
on the next course of action, including whether the executrix should be removed as a personal representative, should follow after
accounts have been rendered in accordance with section 83 of the Act.

65. I have stated above that the will of the deceased largely created trusts and appointed the executrix trustee thereof. I have also
observed that the trusts are akin to the continuing trusts that arise under intestacy with regard to a surviving spouse. Whereas section
83 of the Act envisages an account at only two instances, after the first six months of the administration and at the conclusion of the
administration, where there is a continuing trust, and therefore where it might take a longer period of time before administration is
completed, the personal representatives may have to render accounts on more than two occasions. Indeed, I venture to say that they
ought to do so on a continuing basis, at any rate after every six months that they continue in administration beyond the timelines set
by the Law of Succession Act in section 83.

66. The other issue that the applicant raised related to reasonable provision. He argued that the will bequeathed the entire estate to
the executrix, and did not provide for the children of the deceased. The claim by the applicant that the children were not provided
for in the will is not borne out by the provisions of the will. The design of the will is that the estate is conveyed first to the executrix
during her lifetime to hold in trust, and then thereafter to the children in equal shares. There is also the provision that in the event the
executrix predeceased the deceased, the property would devolve upon the children in the terms specified in the will. Therefore, the
will envisages two scenarios. The first would be where the widow, the executrix, were to predecease the deceased, then the entire
estate would be dealt with in terms of clauses 6 to 16 of the will, where the property would be disposed of item by item amongst the
three children. Should the executrix survive the deceased, then the second scenario would apply as set out in clauses 2, 3, 4 and 5. It
transpired that the executrix survived the testator and therefore the clauses of the will that applied were clauses 2, 3, 4 and 5, and not
clauses 6 to 17 of the will.

67. For avoidance of doubt, clause 3 disposes of Aguthi/Gatitu/899 to the executrix upon trust for life and upon her death to the
applicant absolutely. Clause 4 places the rest of the estate into the residue, and puts the same in the hands of the trustees, and under
clause 5 of the will the residue is to be held upon trust by the executrix for her own use and benefit absolutely. Clause 16 of the will
provides that the residue, or the Residuary Kenyan Estate, to use the terms of the will, is to be held upon trust for the three children
of the deceased.

68. Quite clearly, it cannot be accurate for the applicant to claim that he and his siblings were not provided for under the will of their
father. They are clearly provided for and named in the will as beneficiaries, only that their benefits were not immediate as the
children would only access the estate upon the demise of their mother. They are entitled to equal shares of the entire estate at her
decease, meaning that the applicant is entitled to one third of the entire estate should his mother pass on. In the circumstances there
cannot be any foundation to mount an application under section 26 of the Law of Succession Act for lack of adequate provision. In
any event, the applicant has to contend with section 30 of the Act, which provides that such an application can only be made before
the grant was confirmed. The grant was confirmed in 2006, the prayers for reasonable provision were therefore overtaken by events.
The applicant has not demonstrated that there is room for extension of the period for filing such an application after grant has been
confirmed.

69. In view of what I have stated in paragraphs 66, 67 and 68 aforegoing, it is quite clear to me, that the applicant has been
adequately provided for from the will of the deceased. He is entitled to a third of the estate at the demise of the executrix. The
problem appears to be that he is impatient and unwilling to wait for the bequests made to him to mature.

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70. The third application that I am to determine is dated 2nd July 2015. It seeks censure of the executrix for threatening witnesses
and intimidating them. The witnesses in question are the applicant and the farm manager, Julius Mwangi. It is said that the applicant
was removed as director of one of the companies where the deceased had shares as a measure intended to harass and intimidate him,
while Julius Mwangi was said to have been dismissed from employment at about the time that he was due to give evidence in this
matter on the side of the applicant.

71. I have perused through the material placed before me by both sides on this. Regarding Mr. Mwangi’s case, there is a matter that
has been filed at the Employment and Labour Relations Court over the incident. The pleadings in that matter have not been placed
before me. The issues raised in the application and the labour matter are intertwined, it is about Mr. Mwangi being dismissed from
employment due to fact that he was to be called as a witness in this matter. The matter before the labour court is a substantive suit,
while what is before is an interlocutory application. I would refrain from venturing to deal with matters herein which might
embarrass the Employment and Labour Relations Court at the during determination of the dispute before it. I should leave it to the
Employment and Labour Relations Court to deal with the matter.

72. Regarding the applicant’s case, I have been urged by the executrix that the matter related to company affairs, which are
governed by a different piece of legislation or set of laws, and that being the case I should refrain from wading into the matter. It
was submitted that the applicant has the option of raising the matter with the Commercial Division of the High Court if he was
aggrieved with his removal as director of the company or companies.

73. The concern raised is that the events complained about arose so close to the dates when the two were due to testify as to be
interpreted to mean that the actions were designed to intimidate the two witnesses. The coincidence would be too much that the
executrix targeted the two individuals who were due to attend court as witnesses for removal as director and employee, respectively,
so close to the date when they were due to attend court as witnesses against her.

74. The applicant has urged me to treat the same as contempt of court and to deal with the executrix in terms of the relevant
contempt law. Contempt of court is a criminal offence, whether it arises in civil or criminal proceedings. It can be dealt with in
either civil or criminal proceedings. The offence of intimidating witnesses is defined in both in the Penal Code, Cap 63, Laws of
Kenya, and in the Contempt of Court Act, No. 46 of 2016. Where the charge is brought under the Penal Code the contemnor would
be tried in ordinary criminal proceedings. Where the same is brought under the Contempt of Court Act, the same would then be
initiated in the procedure prescribed for civil contempt, similar to that reserved for judicial review, by Motion supported by a
statement and a verifying affidavit. I note that the applicant has not approached the court by such a process. The sanctions provided
for for contempt of court are criminal in nature. The standard of proof should be above that in civil cases, and close to that in
criminal cases. Due process is expected to be followed at all times in criminal matters. That would mean that the applicant ought to
present a clear case of intimidation. I am not satisfied that the application before me would be an appropriate process for dealing
with the complaint in question.

75. In the upshot, the final orders to be made in this matter are as follows -

a. That I hereby declare that the will of the deceased on record, executed on 23rd January 1998, is genuine and valid;

b. That I hereby declare that the applicant herein is adequately provided for under the terms of the said will;

c. That I hereby direct the executors of the said will, inclusive of Nigel Havergal Shaw, to, within forty-five (45) days of date
of this judgment, file a full and accurate inventory of the assets and liabilities of the estate and an account of their handling
of the estate of the deceased in keeping with section 83 of the Law of Succession Act;

d. That upon the filing of the inventory and accounts referred to in (c) above, the applicant shall be at liberty to move the
court appropriately for other or further orders arising from the said account;

e. That the executrix shall furnish the applicant, within thirty (30) days of the date of this judgment, with a copy of the will
of the deceased which disposes of his foreign estate;

f. That there shall be no order as to costs; and

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g. That any party aggrieved by the orders made herein shall be at liberty to challenge the same at the Court of Appeal
within twenty-eight (28) days.

PREPARED, DATED AND SIGNGED AT KAKAMEGA THIS 31st DAY OF January, 2019

W. MUSYOKA

JUDGE

DATED, SIGNED and DELIVERED at NAIROBI this 15th DAY OF February, 2019

ASENATH ONGERI

JUDGE

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