Decades-long court battle over Fred Kubai's wealth reignited

Former freedom fighter  Fredrick Polwarth Kubai made history, alongside the Kapenguria six, by ushering in a new dawn for Kenya.

Kubai, alongside Kenya’s founding President Jomo Kenyatta, Bildad Kagua, Kung’u Karumba, Paul Ngei and Achieng Oneko were a symbol of resistance and a catalyst for independence.

However, Kubai’s family battles give the country a new thriller chapter of unending wealth succession battles.

Today, a third generation has taken the mantle of corridors of justice battles, with a fresh row over Kubai’s bank account now before the court.

The succession has had many twists, with it costing the taxpayers Sh 10 million after the High Court found that the Directorate of Criminal Investigations (DCI) had illegally arrested Kubai’s widow, Christina Gakuhi, over her national identification card.

 This crucial document was at the heart of a battle over whether Gakuhi was married to the deceased. She won.

However, Jacqueline Muthoni, who is Kubai’s granddaughter, has revived the succession duel. In her case before the Family Court, she said that she was representing, as an administrator, her late father, Samson Owen Kubai.

According to her, the patriarch’s wealth has remained under administration for close to 13 years, as the completion of the administration process, accounting, and subsequent sharing of the wealth has been on a freezer to-date as the police allegedly remained with Gakuhi’s ID even after the case against her was thrown out.

Muthoni, in her case, alleged that her grandfather had an account with Kenya Commercial Bank. However, according to her, it has remained dormant for years and has allegedly not been transferred to the Unclaimed Financial Assets Authority (UFAA).

She also stated that the bank allegedly has the will in a safe. She now wants the court to order the will and the other relevant banking records to ascertain how much Kubai had left and check if the same had been spent after.

“ I do not by this Application ask the Court to reopen, review or determine the forgery allegations or the validity of the Will. My concern is that there remain practical and evidential questions which must be resolved before the Estate can be properly administered and the grant confirmed,” she said.

Initially, it was Muthoni’s brother, Andrew Kamau, who was in court, challenging the authenticity of the will and Gakuhi’s argument that she was legally married to Kubai. The case ended up in the Court of Appeal, which ended the first round of battle 28 years after his death.

Not only did Justices Gatembu Kairu, Francis Tuiyott and Ngenye Macharia throw out an appeal filed by Kubai’s grandson Andrew Kamau, they also condemned him to pay Christine Gakuhi the cost of the case.

 The three judges affirmed that they could not reverse Kubai’s wishes simply because his children did not want anything to do with Gakuhi, his fifth wife.

At the same time, the trio were of the view that they could not equally disturb Kubai’s mode of distribution of his estate.

They ruled that, from the High Court judgment by Justice Asenath Ongeri, all the other Kubai’’ children were happy with what they got from the deceased save for Kamau.

“From the decision of the learned Judge, we conclude that the Will being challenged was found to be a valid Will and the deceased’s sons did not challenge its authenticity. It therefore follows that the beneficiaries of the deceased’s estate were satisfied by the mode of distribution in their deceased father’s estate,” the bench headed by Kairu ruled.

Justice Kairu, Tuiyott, Ngenye joined the list of judges who handled almost three decades battle pitting Gakuhi and children from other wives.

Others who have heard the case are Justices William Musyoka, Luka Kimaru (now at the Court of Appeal), Aggrey Muchelule, Ongeri, Hannah Okwengu, Asike Makhandia, and Patrick Kiage.

In his appeal, Kamau raised 20 grounds. He argued that Ongeri had erred by finding that he was not a beneficiary of the estate. According to him, he was representing the interest of his late father, Samson Kibuthu Kubai.

He also sought reasonable provisions.

In her response, Gakuhi’s lawyer Kamau Kuria told the court that died, the respondent filed Succession Cause No. 1860 of 1996 but instead of the family members

filing a cross-petition, they chose to file Succession Cause 1940 of 1998.

He explained that Justice Musyoka agreed with his client that Kubai had a valid written will and that she was a legal wife.

Dr. Kuria stated that each of the five houses was then allowed to share the estate through an order issued by Justice Ongeli.

He stated that Kamau never contested Justice Musyoka’s judgment nor did he seek his greenlight to file an appeal.

Kamau urged the court to end the battle saying that Gakuhi was in her sunset years and should be allowed to enjoy the fruits of her judgment.

This is the second time the Court of Appeal is throwing out cases filed by Kubai’s grandchildren.

It first dismissed in 2021 an application filed by Kubai’s granddaughters to join the succession battle.

Justices Okwengu, Makhandia, and Kiage unanimously agreed that Mary Sidi Mendza and Jane Njeri Njeru could join the case filed by their late father Moses Mendza Kubai against Gakuhi.

The application had been filed by Mendza and Njeri Kamau. However, Mendza died  leaving his two children to take up the fight.

Nevertheless, the judges found that they could only be enjoined in the case if they were pursuing the case on behalf of their father’s estate and needed to provide proof that they had been appointed as administrators of the estate. They also found that he was no part of the appeal filed by Kamau.

“Moses having died during the pendency of the appeal, the applicants could only pursue the appeal for the benefit of the estate of Moses, if they were appointed as legal representatives/administrators of the estate of Moses. we find that the motion is improperly before us. It is accordingly struck out,” they ruled.

The heated succession case pitted Kubai’s children and Gakuhi. Kubai’s children claimed Gakuhi was a house help.

In her response, she asserted that the patriarch married her and had paid a dowry to her family.

Mr. Kubai in his will detailed how he parted with his four wives. This was central to the vicious court battle.

The case had been determined before the High Court twice and in favor of Gakuhi.

In the case, Geoffrey Chania, a forensic examiner at the Director of Criminal Investigations, had claimed that the signature in the will was not from the same person.  “In my opinion, the signatures were made by different authors,” Chania wrote.

However, Justice Ongeri in her judgment dated August 2, 2019, found that the will was valid and that the patriarch had provided for each of his children.

“I find the testator catered for all of his beneficiaries in the said will. His beneficiaries were his previous wives and children,” ruled Justice Ongeri.

 So expensive is the battle of will that it cost the State Sh1 million after the court found that forgery charges tramped against Gakuhi were illegal.

Justice Chacha Mwita ruled that former Director of Public Prosecutions Keriako Tobiko breached the law when he allowed the woman to be charged in a succession case.

He found that Kubai’s children could not re-awaken the succession case by having Gakuhi charged for falsifying the handwritten will.

The will is dated January 19, 1991.  Kubai died on Madaraka day in 1996.

High Court Judge Caroline Kendagor directed Gakuhi, KCB, the Directorate of Criminal Investigations (DCI) and the Director of Public Prosecutions (DPP) be served with the fresh court papers.

 The new case will be mentioned on September 23.

 How Kubai shared his wealth

A one-page handwritten will was the reason why former freedom fighter Fredrick Polwarth Kubai's family has been in court for 30 years.

The heated succession case pitted Kubai’s children against Christina Gakuhi.

Mr. Kubai’s name was written in small letters on one side, while the back side, which details how he parted with his four wives, is inscribed in capital letters as if he were asserting something.

The will was dated January 19, 1991. 

According to the document, Kubai wanted to be buried within 36 hours of his death.  He left his estate to Gakuhi and gave her powers to execute the will.

She was also to oversee his interment and ensure that the burial would only be conducted by a few family members.

 Despite being a politician, the will reads that he wanted the cheapest of the coffins, made from off-cut timber.

“No harambee collection for the burial expense, no expensive coffin but even of the cheapest off-cut timber male shift,” Kubai directed.

At his funeral, he said, there would be no speeches, no feast, no one would take alcohol or sing, and his coffin and grave would not be draped in flowers.

 The deceased led a polygamous life. He had four wives who he allegedly parted with before his heart settled for Gakuhi. His first love was Sofia Muthoni and they parted ways in 1964, a year when Kenya was declared a republic.

 She had three sons with him.

“I built her three flat houses in Lunga Lunga Nakuru. I gave each son five acres of land,” the will reads.

  The second was Rebecca Wangechi, who is said to have left in 1971.

“She ran away, leaving me with two sons and a daughter, and I educated them to form four. I gave each of the sons and daughters five acres of land and education,” he wrote.

The third was Rose Ann Grace, who is said to have left in 1975, leaving three daughters and a son again. They also got five acres each and education.

 Lucy Mwangi was third and married in 1977.  Kubai said she left in 1979. He added that she had two sons and a daughter from another marriage, and she had another son with Kubai.  The will reads that Lucy’s parents refused to accept Kubai’s dowry.

She is also claimed to have sold her children’s inheritance, which is not detailed in the will.

“Whatever I gave to her four children, she sold and ate the money,” the will continued to read.