Koinange family lifts the veil on the cost of a succession battle

The Mbiyu Koinange family succession battle remains one of the longest disputes that has been in the corridors of justice without a near end.

However, a new battle between lawyer Mwenda Njagi, David Njunu Koinange, and the administrators of Mbiyu Koinange's estate reveals the cost of the war that has been on for decades.

Njunu hired Njagi in 2019 to argue his case. He signed a Sh500 million bill as the cost he was willing to part with for a legal mind to win the case.

Njagi says in his case exclusively seen by The Sunday Standard that Justice Aggrey Muchelule (now a Court of Appeal judge) a year later finally settled the dispute after 40 years.

He says he managed to secure for Njunu more than 1,885 acres of land valued at billions of shillings.

According to the court documents now filed before the civil court, Njagi says the legal fees they had agreed had crystallised and his client was initially happy with the verdict.

He says he advised Njunu against appealing the entire verdict, instead challenging the order on sharing Closeburn Estate- Runda.

"Upon issuance of the said judgment on May 7, 2020, the legal fees crystallised and further confirmed vide paragraph 30 of the instant judgment, and the certificate of confirmation of grant dated May 7, 2020, I have been on record for the defendant (Njunu)," Njagi says.

Court papers filed by Njagi read that Njunu then hired a new law firm - P.M Ombamba and company advocates - to take up from Njagi.

He now says the notice of appeal filed by the new law firm indicates that Njuno no longer requires his services.

"The first defendant has never paid any sums of money after the execution of the said legal fees agreement to offset the claim. Thus the entire sum of Sh500 million is only due and owing. The instant retainer agreement was duly executed by the first respondent and the nuclear members of his household on one hand and the plaintiff on the other hand," he says.

The lawyer says the law is clear that whenever there is a written agreement between an advocate and a client, the legal fees owed cannot be subjected to taxation.

He states that before him there were Nyaberi and Company Advocates. The law firm, according to court documents, was awarded Sh388 million in 2017 as legal fees.

Njagi states that he advised Njunu to agree on a known figure for legal fees in order to avoid the scenario with the former law firm.

"The plaintiff agreed to the neglect of the first defendant to set a cap on their legal fees which was reduced to an agreement on December 17, 2019," Njagi says adding that he is now suffering as his client is silent on his end of the bargain.

The case now lifts the veil on the cost of a succession battle. It indicates that the family might have paid more than a billion in the contest over wealth.

In the case, Justice Muchelule observed that deep anger is the sole reason why former minister Mbiyu's family cannot end the succession wars.

While determining who should manage billions of shilling he left, he noted that the relationship between the family members is too toxic that the cases are not ending even after the court distributed the estate last year.

According to the judge, despite the family members knowing how much they will get as an inheritance, they still sought to fight.

"I note that this whole case showed me that there was so much anger in this family. The main reason why this dispute took this long to resolve was because of the animosity there exists in the family. If Barbara Wambui Koinange and Lennah Wanjiku Koinange do not see eye to eye it is not peculiar to them," Justice Muchelule said.

The patriarch had four wives -Loise Njeri Mbiyu, Rith Damaris Wambui Mbiyu, Margaret Njeri Mbiyu, and Eddah Wanjiru Mbiyu. Njeri and Rith died in 1966 and 2010, respectively. Each of the two left children.

After 40 years of fight, the court appointed Njunu (representing the first house), David Waiganjo Koinange (representing the second house) Margaret Njeri Mbiyu (representing the third house), and Eddah Wanjiru Mbiyu (representing the fourth house).

The battle initially revolved around whether Njeri and Wanjiru were his wives.

Both Njeri and Wanjiru who are Koinange's only surviving widows, had no children with the politician.

At the High Court, Justice William Musyoka, being the 25th judge to handle the dispute, ordered the two women to give back what they had acquired from the former powerful minister who served in Jomo Kenyatta's government. He said they were not the deceased's widows.

"As I have found Margaret Njeri and Eddah Wanjiru not to be the widows of the deceased, I hereby declare that they have ceased to be the administrators of the estate of the deceased," ruled Justice Musyoka.

Aggrieved, they moved to the Court of Appeal which found that the two were married to the deceased.

Justices Asike Makhandia, Phillip Waki (now retired), and Kathurima M'inoti stated that the judge erred by not affirming that they were married and had not parted ways before he dies.

"We come to the conclusion that the learned judge erred by holding that her marriage to the deceased solemnised on March 20, 1971, was invalid.

"There was no evidence that Margaret was ever divorced by the deceased as required by the repealed Act, save that they were separated and living apart when the deceased died. Separation alone did not deprive her of the status of a widow of the deceased because the Law of Succession Act defines wife to include a separated wife," they said.

In the meantime, during the hearing of who was to be the administrator, the deceased's son Waiganjo died.

His son's widow Joyce Njeri and only surviving sister Wanjiku sought to have the latter be the administrator to represent the second house.

According to the court record, all the members of the second house supported the application to have Wanjiku as the administrator save for her niece Barbara Wanjiku Koinange who accused her of treating her as a stranger in the family.

She explained that she does not believe her aunt will transit what she is entitled to.

Barbara's application was supported by Eddah and Njunu who accused Wanjiku of illegally obtaining money from third parties in respect of Closeburn Estate using the claim that she owns the Estate.

Secondly, she allegedly committed fraud against the estate by transferring 80 acres of Closeburn Estate to herself.

Lastly, the trio argued there was a ruling delivered on November 19, 2009 which determined that she was not suitable to administer the estate.

The late minister, who served in Jomo Kenyatta's government for 16 years, passed away on September 3, 1981. His widows and 18 children have tussled over his estate now estimated to be close to Sh17.4 billion for nearly four decades.

Nearly all the judges in the High Court and Court of Appeal, save for those recently recruited, have in one way or another dealt with the Koinage succession suit.

So have those who went home by either retirement or by being dismissed by the Judges and Magistrates Vetting Board.

The case was also at one point heard by former Deputy Chief Justice Kalpana Rawal. It is among the most unique and epic succession cases in Kenya's history as more than 50 parallel cases have been filed since the initial case moved to the corridors of justice.

For nearly 40 years, since succession suit No 527 was filed in court in 1981 to resolve the distribution of the properties to the beneficiaries of the powerful minister, the slow wheels of justice have tried to grind on who should get a share of what.

Chief Justice Martha Koome, when she sat as a High Court judge, described the long-drawn war among the Koinange kin and their lawyers as an endless show.

"I am sorry to state that going through this court file, and the tactics employed by the parties and their advocates, the case can only be likened to the classical theatre of the absurd," Justice Koome said in her ruling dated January 28, 2005.

She added: "It is a shame that 24 years after the death, there seems to be no end in sight."