Kenyan man Kennedy Kariuki Mwangi lost his legal bid to claim sole ownership of a prime property in Kitengela after the Court of Appeal upheld a decision rejecting his mother’s alleged oral will.
The Court of Appeal made the ruling on March 25, the appeal was from the Ruling and Order of the High Court of Kenya at Nairobi, delivered by R. Nyakundi, J, on October 3, 2018.
During the time of the death of Agnes Nyambura on April 1, 2014, she had three sons: Alphonse James Irungu Mwangi, Peter Njomo Mwangi, the respondent, and Kennedy Kariuki Mwangi, the appellant.
Kariuki, however, stated that the plot had been left to him by their late mother through an oral will.
“By an application dated 8th December 2016 filed in court on 12th April 2017, the appellant, pursuant to rule 13 of the Probate and Administration Rules, sought proof of what he alleged was an oral Will left by the deceased,” part of the Court statement read.
Peter had been granted letters of administration for their mother’s estate following her death.
Kitengela Plot No. 65 Ownership Dispute
Kariuki presented a case against his brother, Peter Njomo Mwangi, regarding the ownership of Plot No. 65 in Kitengela.
To support his claim to ownership against his brother, he had two witnesses who were tenants on the Kitengela plot for 12 years.
Peter Njoroge and Diana Njeri swore their respective affidavits on October 11, 2016, and October 26, 2016, and they were both filed on November 21, 2016.
According to the two witnesses, the deceased had told them that in case of her demise, they should pay Kariuki and not anyone else.
They added that the deceased affirmed that the plot belonged to Kariuki and stated that during the visit, when the mother gave her will, she was in stable condition.
Inconsistency of the witnesses’ report was, however, mentioned by the judge as the two claimed to visit the deceased on April 9, 2016, yet records showed that the deceased died on April 1, 2014.
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Alphonse and James stated that they were unaware of an oral will left by their mother regarding the plot.
They, however, confirmed that Kariuki was receiving rent from some of the tenants, adding that James was allocated the Kisumu Ndogo plot no. 301, Peter allocated plot no. 64 Athi River, and Kariuki had been allocated plot no. 43 Athi River.
The brothers affirmed that no distribution plans regarding the plot in Kitengela had been made.
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Court on the Verification of the Oral Will
According to the court, the court’s utterances by the deceased on February 8, 2014, did not meet the legal standards in section 9 of the Law of Succession Act (the Act) for them to be considered as an oral Will of the deceased.
The act states that no oral will is valid unless it is made before two or more competent witnesses and the testator dies within three months of the date of making the will.
In addition, the law states that no oral will is valid if 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.
In providing the ruling, the judges also mentioned that the witness’s testimony was not consistent and did not align with the time of the deceased’s death.
Consequently, the Court of Appeal found no merit in this appeal and dismissed the case, stating that Kariuki had no legal ground or proof of being the heir to the plot in Kitengela.
