Battle to exhume Kibaki body for DNA after out-of-court talks fail

Talks between former President Mwai Kibaki's family and two individuals claiming to be his children have collapsed.

The court heard on Thursday that despite months of meetings and engagements to settle the succession case, nothing substantial had been achieved.

Justice Fred Ogola initially granted Kibaki's children three months to hold talks with a woman, codenamed JNL, and Jacob Ocholla Mwai to strike a deal to end the court battle over the former president's wealth.

However, the parties informed the judge that there was no agreement reached yet.

Lawyer Morara Omoke, who is representing Ocholla, told the court that his client was no longer interested in the negotiations as they were not yielding any results.

Instead, he stated that Ocholla wants to pursue his DNA application.

At the heart of the negotiations was whether Kibaki's children - Judy Wanjiku, Jimmy Kibaki, Kagai Kibaki, and Githinji Kibaki - will recognise JNL and Ocholla as their siblings and how much each should receive, as Kibaki had outlined in his will how his wealth would be shared.

Following the collapsed talks, the Judge said the court will hear applications to exhume Kibaki for DNA testing, which Ocholla was seeking, and a second application to subject the four children to a DNA test.

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It also emerged that Jimmy has hired Muriu Mungai Advocates to represent him in the case. The law firm filed its notice of appointment on August 10, 2023.

The rest of the siblings have retained Coulson Harney LLP as their law firm. Initially, Ocholla's lawyer, Morara Omoke, had asked the court to set a hearing date for his bid to exhume Kibaki's body for a DNA test.

In his case, the 63-year-old man asserted that he was Kibaki's firstborn son.

To prove his argument, Ocholla attached a report prepared by Dr. Zakayo Limili, a pathologist, who said Ocholla's and Kibaki's phenotypic features suggested that the two are related.

According to Limili, Kibaki's and Ocholla's noses, foreheads, eyelids, and lips resemble. Furthermore, in his report dated January 19, Limili said the cheekbones and cheeks of the two men as well as their eye contact and blinking are similar.

"The similarity assessment by analysing phenotypic features suggests that Jacob Ocholla and Mwai Kibaki are related," claimed Limili.

Limili's document was filed as part of a reply to the Kibaki children's argument for the dismissal of Ocholla's application.

Kibaki had stated that Wanjiku, Jimmy, Kagai, and Githinji are his only children and heirs, but JNL and Ocholla are seeking a share of his wealth as his "firstborn son and daughter."

On August 11 of last year, a gazette notice was published notifying Kenyans that the court would proceed to grant Kibaki's three children, whom he had appointed as executors of his will, powers to administer the estate.

They were also tasked with making distributions of inheritance to beneficiaries as per Kibaki's wishes.

Nevertheless, JNL filed an application arguing that she feared the succession process would proceed without her being recognised as Kibaki's daughter.

"The applicant, being a daughter and beneficiary in the estate, is apprehensive that she stands to have all her inheritance rights under the constitution infringed upon unless she is supplied with all the relevant pleadings and supporting documents," JNL's court papers read.

JNL claimed that her mother and Kibaki met while they were students in the UK in the late 1950s. She was born in 1961.

"I have been informed by my mother, whose information I believe to be true, that when I was born...my father was aware and came to visit me as a child in hospital," she said.

According to her, Kibaki's children know her and have interacted with her since 1968.

She stated that she attended the same institution as Judy Kibaki, Jimmy Kibaki, and David Kibaki.

She accused the executors of the will of failing to seek her consent and failing to supply her with documents filed in court.

She claimed to have attempted to involve a Catholic Church bishop in an out-of-court settlement.

In his case before the Nyeri High Court, Ocholla claimed that the former President not only acknowledged that he was his biological father but also asked him to always respect him as a father.

However, the prayer to have Kibaki exhumed is opposed by his four children. Wanjiku filed a reply on behalf of her other three siblings.

She argued that exhuming Kibaki would not only be detrimental to his family but also to Kenyans at large.

To elucidate the complexities of the orders being prayed for, Wanjiku argued that Kibaki, being a retired Head of State, was accorded a state funeral, which was funded from public coffers and overseen by the military.

Simultaneously, she stated that Tanzania declared two days of national mourning, while South Sudan had three days. In Kenya, his body lay in state at Parliament for three days between April 25 and 27, 2022, to allow Kenyans to view him before he was interred on April 30, 2022, in Othaya. She added that the burial day was a public holiday in Kenya.

According to Wanjiku, her late father's death was a national and international issue, and the court should not entertain a prayer to exhume him.

"Because of the foregoing, I believe the final laying to rest of the deceased as a retired Head of State is a matter of national and international importance and is publicly funded.

By reasons of the paucity of evidence and the second objector's summons, such orders for the disinterment of the deceased should not be granted by this court and in the manner sought," Wanjiku replied.

She argued that it is suspect for Ocholla and JNL to show up after his death as he never introduced or acknowledged them as his children to his family.

The case will be heard on June 6.