The High Court has upheld the validity of the Will of a British national who died almost 13 years ago and whose properties have been the subject of court battles, with several individuals including businesswoman Agnes Kagure, claiming ownership.
Justice Hillary Chemitei ruled that the Will prepared by Roger Bryan Robson in 1997 was duly executed, witnessed by two individuals and drafted by an advocate.
Mr Robson died on August 8, 2012. He had written the Will on March 24, 1997, appointing lawyer Guy Spencer Elms and Sean Battye as the Executors and Trustees of his estate. However, Battye later renounced his executorship after leaving the country.
Mr Thomas Murima Mutaha, the proprietor of Plovers Haunt Ltd which claims ownership of one of the properties in Upper Hill and Ms Kagure, who claimed a property in Karen, challenged the Will alleging it was a forgery.
“Neither do I find any evidence to suggest any pressure or coercion was applied against the deceased (Mr Robson) when he made the Will. It appears that he simply walked into his counsel’s chambers and gave directions regarding his intentions. The parties, including the respondent (Mr Elms), went ahead to formalise it, and the relevant parties witnessed the process,” said the judge.
The judge observed that there was no indication Mr Elms benefitted personally from the estate except in his role of safeguarding the interests of Mr Robson, who had no children.
Mr Elms had indicated that the properties were to be sold and the proceeds shared between Mr Robson’s nephew and charitable institutions in Kenya focused on environmental conservation.
Justice Chemitei noted that the omission of specific properties in the Will did not render it invalid.
“If, in the long run, there are some properties not included, they shall be administered as intestate assets. That however, cannot be a ground for invalidating the Will,” he said.
The judge also found the conveyancing documents presented by Mr Mutaha questionable, including issues related to shareholding.
Mr Mutaha claimed he purchased the land which included some structures later demolished illegally but during cross-examination, he admitted there was no sale agreement and that Mr Robson had transferred the property to him freely.
He said he had reported Mr Elms to the Directorate of Criminal Investigations (DCI) and the Director of Public Prosecutions (DPP), accusing him of fraudulently claiming to hold the Will.
Mr Mutaha testified that he was a director of Plovers Haunt Ltd and that Mr Robson was a family friend, as he knew his brother and mother in the UK.
However, Mr Michael Fairfax Robson, a brother of the deceased, testified virtually, outlining the family’s history. He said he had fallen out with his brother and returned to the UK. He denied knowing Mr Mutaha.
Mr Elms maintained that Mr Robson never transferred any property to anyone. He testified that although he was once charged with forging the Will, the case was later withdrawn.
He added that Mr Robson’s brother had transferred his shares in Plovers Haunt Ltd to himself and his wife subsequently registering another company called Plover Haunt (2015) Limited, a subsidiary of the original company.
According to Mr Elms, the contested property was still charged to a bank, making any sale or transfer impossible.
Justice Chemitei directed that the dispute over the three contested properties be addressed by the Environment and Land Court.
“The evidence presented would be more valuable before the land court as the matter involves contractual issues rather than inheritance,” the judge stated.
Ms Kagure claims she bought the land in Karen from Mr Robson in 2011, a year before his death for Sh100 million. Another property was claimed by Mr Timothy Wangai Mwathe and Frendrich Pietz.
However, in October last year, the court revoked Mr Wangai’s title deed and ordered him to pay the estate and Mr Elms Sh7 million in damages for trespass.
