Kurgat & another v Kurgat (Probate & Administration 112 of 2015) [2022] KEHC 9891 (KLR) (13 July 2022) (Ruling)

Deceased Name

Key Facts

Issues

• The court was required to determine whether the deceased, Thomas Chepkurgat Cheptiony, died testate (with a valid Will) or intestate (without a valid Will). This included evaluating the legal validity of the handwritten Will dated 29th January, 1995, under the formal requirements of the Law of Succession Act, particularly Section 11. The Will's authenticity, execution, and attestation were scrutinized, with the court ultimately concluding it was invalid due to non-compliance with statutory formalities.
• The second issue centered on the validity of the Will itself. The court analyzed whether the Will met the essential criteria for a valid testamentary document, including testamentary intent, capacity, absence of fraud/duress, and proper execution. Key findings included inconsistencies in witness testimony, lack of the deceased's signature or thumbprint, and failure to meet attestation requirements under Section 11 of the Law of Succession Act. These factors led to the Will being declared null and void ab initio.

Date of Death

Holdings

• Each party to meet their own costs of the application.
• The court declared the will invalid due to non-compliance with legal requirements.

Remedies

• Each party to meet their own costs of this application.
• The purported written will dated 29th January, 1995 is null and void ab initio for non-compliance with the law, and it is hereby declared that the deceased died intestate.

Will Type

Probate Status

Legal Principles

• The court relied on the 'suspicious circumstances rule' from Tobin v Ezekiel and Dal Pont & Mackie, emphasizing that inconsistencies in the will's execution (e.g., conflicting dates, missing handwritten draft, lack of direct witness testimony) necessitate affirmative proof of the testator's intent. The will was declared ultra vires for failing to meet statutory formalities.
• The court applied the principle that the presumption of knowledge and approval of a will's contents does not apply if suspicious circumstances exist around its execution. The deceased's failure to sign or affix a thumbprint to the will, combined with inconsistencies in witness testimony and delayed disclosure, led to the conclusion that the will was invalid under Section 11 of the Law of Succession Act.

Succession Regime

Precedent Name

• Tobin v Ezekiel
• Re Bailey
• Roy Buchanan, Erica Buchanan Trust, Kevin Buchanan and Jean Hall (Executrix of the Estate of Ulysses, Jabez Buchanan, deceased
• Banks v Goodfellow
• Scale v Rawlins
• Perrin v Morgan

Executor Name

• Cleti Kiprotich Kurgat
• Agnes Jepkiyeny Cheptiony

Cited Statute

Executor Appointment

Judge Name

Beneficiary Classes

• Spouse / Civil Partner
• Child / Issue

Passage Text

• i. That the purported written will dated 29th January, 1995 is null and void ab initio for non-compliance with the law and it is hereby declared that the deceased died intestate.
• ...the parties to the will in question will agree that having canvassed the territory upon which the testamentary was made denotes suspicious circumstances sufficient enough for this court to revoke it as an instrument ultra-vires the Law of Succession Act.
• There are a lot of inconsistencies and contradictions surrounding the execution of the Will dated 29th January, 1995. The suspicious circumstance rule in the making of the will is clearly expounded in the case of Tobin v Ezekiel [2012] NSWCA 285...