A court has allowed a former Central Bank of Kenya director to claim 1,000 acres from the vast estate of Kenya’s first post-independence Major General.
Following Maj Gen Joseph Ndolo's death in a car crash in 1984, his three widows, Alice Katiwa, Rose Mutinda and Elizabeth Kamene were locked in a fight to keep his 9,000-acre Mwani Ranch in Sultan Hamud.
Among the issues they started fighting in the 1985 succession case was the sale of 1,000 acres of the vast estate to Joseph Maitha, a former CBK director.
Prof Maitha had acquired the land from Mrs Kamene despite opposition by the other members of the patriarch’s polygamous family.
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This ended up in the succession case, where the other houses wanted Kamene’s right to administration taken away and the sale revoked.
They based their argument on an alleged forgery of Ndolo’s will.
On average, the cost of an acre of land is approximately Sh450,000 locally.
Going by the estimate, if the former military boss was alive today, he would have been worth Sh4.5 billion in terms of land alone.
On appeal, in 1996, Kamene ended up with a bigger chunk of Ndolo’s estate while Mutinda and Katiwa shared a portion of estate.
Got 3,200 acres
Out of the court’s order for division, Kamene got 3,200 acres while her co-wives shared 2,400 acres.
Justices Evans Gicheru, Phillip Tunoi and Riaga Omollo unanimously agreed that Kamene was the apple of Major Ndolo’s eye.
“We must, however, take into account the undoubted fact that the appellant herein was the deceased's preferred wife and we can only do so by allocating to her house a larger share of the deceased's net estate,” the judges ruled.
They also observed that the 1,000 acres which would again draw a long fight in the corridors of justice was unavailable for sharing, having been sold.
Although the court found that Maitha had a claim, he did not get his piece of land.
Maitha came into the picture in a purchase that was meant to salvage the entire estate from an auction by the Agricultural Finance Corporation.
Court records read that the entire Ndolo’s estate had been used as security for a loan from AFC, which had not been serviced.
He sued Kamene and her sons Justine Kasimu and Sila Musyimi, claiming that although they were aware of his claim, they subdivided it among themselves.
Mr Kamisu objected to the case claiming it had been determined before, hence an abuse of court process.
Justice Isaac Lenaola, then sitting in Machakos High Court in 2009, ruled in favour of Maitha. Aggrieved, Kamisu moved to the Court of Appeal.
In his appeal, he argued that the High Court erred by failing to dismiss Maitha’s case, as he did not explain what he was owed.
He also argued that the judge failed to appreciate that Kamene never admitted selling the 1,000 acres as she did not file any affidavit or reply to the case.
Powers to sell
The court also heard that Kamene had no powers to sell the contested property before it was distributed to beneficiaries.
But Justices Roslyne Nambuye, Mohamed Warsame and Kathurima M’inoti observed that the court left out the 1,000 acres from distribution. They ruled that his case was justified.
According to the judges, although the estate was distributed through a succession case, Maitha’s interests in the estate were not taken care of.
“In these circumstances, it is difficult to see how the first respondent’s (Maitha) suit seeking his 1,000 acres can be said to be frivolous, vexatious or an abuse of the process of court,” the judges ruled last week.
Ndolo’s family is also facing a separate fight over 800 acres with Josiah Kiambulu.
jmuthoni@standardmedia.co.ke
