Rigathi Gachagua's defence raises questions on late brother's Will, business dealings

After a week of high-octane politics that culminated in the impeachment of the Deputy President by Parliament on Tuesday, the drama is expected to shift a gear higher this week when Rigathi Gachagua presents himself before Senate to defend his political career.

At the moment, all indications are that the Deputy President will take the stand on Thursday and defend himself on the floor of the upper house just like he did last Tuesday before 281 members of the National Assembly who voted to send his impeachment motion for trial at the Senate.

“I am innocent of all these charges. I have no intention whatsoever to resign from this job. I will fight to the end,” said a defiant Gachagua.

An analysis of the DP’s 533-page defence laid before the National Assembly last week, however, shows a number of inconsistencies and statements that raise more questions than answers on the crimes he is accused of committing.

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Although the DP gave a spirited fight backed by his late brother Nderitu Gachagua’s will, showing that most of the multibillion properties mentioned belonged to the former Nyeri governor, but an analysis of the Will reveals a number of questionable omissions.

Nderitu, who was worth more than Sh2 billion at the time of his death. In his Will, he ordered that all his properties save for matrimonial homes be sold and the proceeds shared between 24 beneficiaries including his wives, children, brothers, sisters, mother and the executors of his Will.

“I direct that if any of the above listed beneficiaries raises any challenge to the stated mode of distribution, he or she shall be disqualified automatically from inheriting any part of my estate,” ordered Nderitu in his Will which was drafted a week before his death on February 24, 2017, at the Royal Marsden Hospital in London while undergoing treatment for pancreatic cancer.

In his defence on Tuesday, Gachagua said that some of the properties he is accused of acquiring fraudulently but in reality belonged to Nderitu had already been sold to third parties as per his late brother’s wishes and the proceeds distributed among his beneficiaries.

Nderitu’s beneficiaries

In an affidavit filed as part of his defence, Gachagua said that Olive Gardens Hotel and Queens Gate Serviced Apartments which were part of the impeachment motion filed in Parliament had since been sold.

He also said that the Nderitu‘s beneficiaries decided on their own not to sell Langata View Apartments but divide the units among themselves.

Further, he said that the executioners of Nderitu’s Will which include him decided to transfer the land which the luxury Vipingo Beach Resort was built on plus its assets to a third company Kuruwitu Properties Ltd for the purpose of selling it.

“The joint Will executors caused the two properties to be transferred to a special purpose vehicle where they still remain,” said Gachagua in his defence.

However, when you keenly study Nderitu’s Will he expressly directed that all his eight properties be sold in the state they were at the time of his death and the proceeds distributed among his beneficiaries.

The fact that the executioners of Nderitu’s Will decided not to sell all the properties but distribute some of them amongst the beneficiaries or transfer them to another company like in the case of Langata View Apartments and Vipingo Resort raises questions.

Interestingly, Gachagua’s sons Kevin and Keith who own other hotels like the Tree Tops Lodge, which is part of the impeachment motion, are currently directors at Vipingo Resort which is yet to be sold. This has raised serious questions about how Nderitu’s will was executed.

This is because at the time of the late governor’s death Vipingo Resort Ltd, which owned a huge chunk of his prime properties, had his daughter Susan Kirigo Nderitu (1,000 shares), Son Kenneth Gachagua (five shares) and Rigathi Gachagua (one share) listed as shareholders.

That the executioners of the late Nderitu’s Will removed the late governor’s children as shareholders in Vipingo Resort Ltd and then replaced them with the DP’s own children as directors is very interesting.

Additionally, an affidavit that was filed in Parliament in support of Gachagua by the executioners of his late brother’s estate claimed that Triple Eight Construction Ltd and Queens Gate Serviced Apartments and Spa Ltd which were both owned by the late Nderitu had no properties under their name.

A scrutiny of Nderitu’s Will shows that while it is true Queens Gate Serviced Apartments and Spa Ltd owns no properties, Triple Eight Construction was at the time of Nderitu’s death the owner of a piece of prime property in Nairobi LR NO 12609/9.

The big question is whether the executioners of the will forgot to list the piece of land in their submission to Parliament or whether the property does exist and if it does who owns it at the moment.

“If you read the report filed in court on June 27, 2024, by the joint Will executors, it says that the joint Will executors will make decisions independent of the beneficiaries and without influence from any beneficiary, except for one who is both a beneficiary and an executor. The joint will executors do not have the same attributes and mandates as for trustees where beneficiaries would play a part in assisting in decision making,” Majority Leader Kimani Ichung’wah argued in Parliament while disputing Gachagua’s explanation on how he ended up being in control of his late brother’s properties.

“What this is saying is that Rigathi Gachagua as a joint Will executor was also a beneficiary of the estate of his late brother. He was not only a joint Will executor; he was a beneficiary and purchaser for the value of the estate of his late brother,” he said.

Apart from the ownership of his brother’s properties, Gachagua also struggled to explain why his companies or those owned by his immediate family were doing business with government yet he is a senior state officer.

He also avoided to respond to why some companies owned either by him or his family are operating from government owned premises.  Fortis Vis Group Ltd, for instance, is owned by Gachagua’s sons, Kevin and Keith, who each have 50 shares in the company that was registered on February 14, 2023.

It is one of the companies that are operating from the official residence of the Deputy President according to the records from the registrar of companies.

According to the Leadership and Integrity Act 2012, public officers are explicitly prohibited from participating in tenders for public entities where they are currently serving.

This means that they cannot submit bids or try to influence the tender process in any way within their own government department or agency. This is to prevent conflict of interest and corruption.

Launder money

“The mover of the motion has listed 22 companies associated with me and has alleged that they have been used to massively launder money and conceal proceeds of crime, corruption and benefit from influence peddling,” said Gachagua.

“I would like to be clear that these companies have not been involved in any illegal activities and I believe that this is why the mover of the motion has not tabled any evidence of impropriety with respect to the companies,” he said.

The DP, however, went ahead to contradict himself in his defence by acknowledging that a company which he used to own but transferred to his sons is linked to a foreign company that took part in the botched Sh3.7 billion mosquito net scandal.

“I am aware of a foreign company known as Shobikaa Impex Private Ltd domiciled in India which appointed Crystal Kenya Ltd where my son is a managing director as its agent in Kenya in 2014,” said the DP.

“Having not participated in the subject tender, Crystal Kenya Ltd did not submit any of its documents in response to the subject tender. Specifically, Crystal Kenya Ltd did not submit a bid bond/ tender security in its name in response to the subject tender,” the DP defended himself.

Gachagua has put up a battery of top lawyers led by senior counsel Paul Mwite, Elisha Ongoya, Amos Kisilu and Tom Macharia.

His two-fold defence strategy will include challenging the whole impeachment process including public participation and the involvement of National Assembly Speaker Moses Wetangu’ula owing to his utterances of the impeachment motion.