Of Sh220m succession battle and Joe Nyaga's burial wishes

Joseph Nyagah’s burial wishes have taken centre stage in a Sh220 million succession dispute. [File, Standard]

On February 19, 2013, the late former Co-operatives Minister Joseph William Nthiga Nyagah penned a one-page message that has now opened a new chapter for wills researchers and law students.

He thoughtfully wrote a five-paragraph document titled “letter of wishes”, detailing instructions that appeared to complement his formal will.

The letter was addressed to his trustees, his sons, Jeremiah John Mwaniki Nyagah and Norman James Munene Nyagah, outlining how he wished his estate to be handled after his death.

The document, now part of an ongoing succession dispute before the Family Court, guides burial arrangements and post-burial wishes.

“With reference to my will dated February 19, 2013 in which you have been appointed trustees, you may wish to have the following notes on my ideas in connection with the exercise of your discretionary powers over the estate although, of course, such notes shall not bind you in any way nor shall they constitute a trust,” the letter seen by The Standard reads in part.

Nyagah’s wishes were threefold. Upon his death, the former Orange Democratic Movement (ODM) Pentagon member requested that he be laid to rest in his existing attire, prohibiting the purchase of new burial clothes. Instead, he asked that a suit be selected from his wardrobe.

He was also opposed to a public viewing of his body, preferring that the funeral remain a private family affair. However, he left discretion to his sons if they wished to allow broader participation.

Nyagah died aged 72

In the letter, he also set out provisions concerning his widow, Margaret, requesting that she continue to be maintained in the manner she had become accustomed to during his lifetime. “Upon my death, no new clothes should be bought for me. I would like to be dressed in one of my existing suits… It is my wish that you continue looking after your mother during her lifetime in a manner she has become accustomed to and to pay for her maintenance,” he wrote.

A former Alliance High School alumnus, Nyagah married Margaret Theresa Kelly from Scotland on July 9, 1974, at St Chrysostom Anglican Church, Dearborn Parkway, Chicago.

His close friend, Kisumu Governor Prof. Anyang’ Nyong’o, served as best man at the wedding. Their friendship developed during their time at Alliance High School.

Nyagah met his wife while she was teaching and studying. Margaret, a mathematician, later supported him academically during his degree and master’s studies.

His “eulogy book”, now part of the court proceedings, indicates that in 2014, he met Esther Waigwe, described as a church member, with whom he allegedly had a daughter referred to as BEW in 2015. Nyagah is estimated to have been worth approximately Sh220 million.

In his will, he clearly outlined how he wished his estate to be distributed. He was notably generous, leaving one of his prime properties to be shared between his sons and godchildren.

Inheritance battle

He also gifted his brother, Njeru Nyagah, a property in Masinga.

Nyagah further expressed a wish that part of his estate be liquidated to cater for funeral expenses, debts and testamentary costs.

He provided for the possibility of his wealth being passed to his grandchildren should his sons predecease him.

“The surplus income shall be accumulated by investing the same and the resulting income thereof in any investments of the kind hereby authorised… such accumulations shall be added to the property or to the share therein from which the same was derived and shall devolve therewith,” the will states.

He further instructed that trustees may apply income from such accumulations for any authorised purposes, as if it were income of the current year.

He also directed that the estate should not be treated as capital unless necessary, and allowed trustees discretion to retain or insure assets as they deemed appropriate. “That my trustees shall have power to purchase or subscribe for any shares, stocks, securities, options, rights, interest or other property of whatsoever description, to borrow money for any of the purposes hereof… and to pledge or mortgage the whole or any part of my residuary estate by way of security,” he wrote.

Nyagah’s investments were largely in land and property.

However, his estate has since become the subject of a protracted succession dispute before the courts.

Following his death, Esther Waigwe moved to court challenging the will. She claims she was his second wife and, therefore, a beneficiary of the estate.

In her court documents, she stated that she had been recognised as such by the Deputy County Commissioner of Mbeere South Sub-County and the area chief, as well as during the funeral proceedings. She further claimed that they had a daughter together and jointly owned three properties.

Waigwe also alleged involvement in part of his business empire, including the management of rental property. She argued that Nyagah’s will was written before they met. “Before my late husband passed on, he informed me that he had written another will, but unfortunately did not leave me a copy. The same may have been concealed from me by the family. There are household goods which we bought together in the Lavington house which belong to me as the wife,” she claimed.

Waigwe also claimed entitlement to funds from the Jeremiah Nyagah family trust, which she said had not been disclosed.

She further argued that she was entitled to a share of the deceased’s estate, including funds held in accounts at Co-operative Bank and NCBA. “During the lifetime of the deceased, he did not make any gift in contemplation of death nor any advancement to me or the minor. The minor and I are entirely dependants of the deceased estate,” she stated.

Waigwe also claimed that they jointly operated a poultry business valued at Sh38 million, housing 80,000 birds and engaged in green gram farming. She told the court that after Nyagah’s death, the extended family allegedly halted operations.

Waigwe argued that her annual expenses included Sh79,000 for insurance, Sh60,000 for vehicle servicing, Sh360,000 for fuel, Sh80,000 for medical cover, Sh3,000 for Wi-Fi, Sh30,000 per month for electricity, Sh50,000 for domestic help, Sh70,000 for food, and Sh100,000 for borehole maintenance.

For her daughter, she sought Sh117,500 annually for school fees, Sh80,000 for medical insurance, Sh200,000 for clothing, and Sh240,000 for entertainment.

In response, Mwaniki Nyagah opposed her claims. He stated that the contested house was built in the early 2000s and formed part of the matrimonial home under customary arrangements. “The home was willed to my brother and me; we are allowing her to stay there as an act of goodwill. Therefore, the applicant cannot claim ownership,” he argued.

Mwaniki also denied that Waigwe was married to his late father, stating that Nyagah had only one wife under Christian marriage customs.

He further claimed that Waigwe was previously married to Bernard Miako Ndung’u until 2018, when the marriage allegedly ended.

He stated that while Waigwe may have had a relationship with the deceased, she was not a wife or dependent, but a business partner.

Mwaniki also questioned the paternity of the minor, alleging that Waigwe was still legally married at the time of birth.

He said that after the 2017 elections, Nyagah established Mama Eunice Poultry Limited, in which Munene, Waigwe and he held shares.

He further claimed that in 2019, the deceased moved to Nairobi, leaving Waigwe to manage the business and reside at the disputed property for operational convenience. “The applicant was never a dependent of the deceased. She was a business partner in Mama Eunice Poultry Limited and sustained herself through business proceeds,” he said.

He added that the trustees had already made adequate provisions for the minor, including medical insurance, as outlined in their schedule of provision dated 27 September 2022.