Court orders Koinange kin to share wealth to end 42-year row

A total of 17 applications had been filed.

Among the applications was one by Njuno, who argued that he ought to have received more wealth than the rest since he was a firstborn son.

His brother, George Kihara, had also filed a separate application seeking to have Njuno be removed as an administrator of the first house.

Koinange hailed from Kiambu. He died on September 3, 1981, having left a rich academic and political history.

He served as cabinet minister in the governments of President Mzee Jomo Kenyatta and his successor Daniel arap Moi.

The patriarch was polygamous, a wealthy man who died without a will. He was estimated to be worth Sh30 billion.

However, the question of who ought to get a stake and how that ought to be done became an unending legal battle.

List of judges

Justice Ogola added his name to the list of judges who have tried to end the for 42-year-old court battle. He was number 26.

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 Koinange succession suit.

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

The case was also at one point heard by Chief Justice Martha Koome.

The CJ heard the case as a High Court judge. She described the long-drawn war among the Koinange kin and their lawyers as a theatre of the absurd.

"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.

Numerous applications

She added: "It is a shame that 24 years after the death, there seems to be no end in sight. Numerous applications and consent orders have been recorded but very little progress has been made towards the distribution of the estate to the beneficiaries."

Koinange's succession duel is among the most unique and epic 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 the past 42 years, since succession suit No. 527 was filed in court in 1981, the family has known the Judiciary like the back of their hands.

The latest is a battle pitting lawyer Mwenda Njagi and David Njunu Koinange over Sh500 million legal fees

Back to Justice Ogola, he ordered that the administrators of the estate should open a joint account to have the money held by the Unclaimed Financial Asset Authority transferred to the estate.

The judge ruled that the money should be used to offset liabilities incurred by the estate.

According to Justice Ogola, a review or a stay of the judgment on how the estate should be distributed would further stall the conclusion of the case that has taken four decades in the corridors of justice.

In a 44-page verdict, Justice Ogola also ordered the administrators to file a surveyor's report on Closeburn Estate. He said anyone aggrieved should move to the Court of Appeal.

There was no agreement on the acreage of Closeburn Estate. When Koinange died, it was 640.25 acres.

It follows that 291 was sold to the Aga Khan Group, 100 acres to Centum Ltd and three acres to Karura Community Chapel Registered Trustees.

Justice Ogola was in agreement with Justice Aggrey Muchelule (now a Court of Appeal judge) that Koinange's estate should be divided among 12 beneficiaries and not according to the houses.

Justice Muchelule dismissed the Koinange's sons argument that they should get more than their sisters. He decreed that all children have equal rights irrespective of their gender.

He was of the view that the former minister was a classic example to Kenyans that they should write wills before leaving the earth.

"What is not appreciated is that most of the cases involving rich polygamous Kenyans who die intestate have followed a similar pattern: lengthy and complicated litigation, attracting many advocates, and less intention on the part of the parties to bring the matter to an end.

One wishes that all Kenyans can get into the habit of planning their lives, and especially thinking about what will happen to their families and properties upon their death. It is not too much to ask that the planning be by way of writing wills," said Muchelule.

Koinange's first wife was Loise Njeri Mbiyu. She died in 1966.

Her children are David Njunu Koinange; Paul Mbatia Koinange; George Kihara Koinange; Mary Wambui Koinange (who died but was survived by a daughter Stella Njeri); Elizabeth Waruinu (who died but was survived by a daughter Stella Wanjiku Kibaara and son Stephen Mungai Kibaara); and Isabela Wanjiku Mbiyu who died and left no child.

His second wife was Rith Damaris Wambui Mbiyu. She died in 2010.

Her children with Koinange are Isaac Njunu Koinange (who died and left a widow Joyce Njeri Njunu and five children); Solomon Kihara Koinange (who died but left a widow Susan Kihara and a daughter Angela Wambui); Karuga Mbiyu (who died); Florence Wanjiku Koinange (who died and left a daughter Barbara Wambui Koinange); David Waiganjo Koinange; Geoffrey Karuga Koinange (who died and left no child); and Lennah Wanjiku Koinange.

The third and fourth wives - Margaret Njeri Mbiyu and Eddah Wanjiru Mbiyu had no children.

The judge noted that Koinange's vast empire involved tracks of land in several parts of the country.

At the same time, there was some Sh284 million, which lawyers decided to share among some of the beneficiaries and the remainder was used to offset legal fees and creditors' debts.

Justice Muchelule said it was puzzling how Eco Bank released the money to the lawyers.

"The advocates swore affidavits to say that there was some ruling by Justice Leonard Njagi that directed that all outstanding debts of the estate be paid from the monies. They said they were unable to trace the ruling in the file.

They did not evidence any copy of the ruling. I wonder on what basis Eco Bank released the money to the advocates. Did the bank see any order of the court authorising the release," paused Justice Muchelule.

He, however, observed that there was separate case filed by lawyers, challenging prosecution over the same money before the Constitutional Division of the High Court.

The judge directed that a piece of property along Lunga Lunga Road, 800 acres of Muthera Farm, 10 acres of Ehothia Farm and five acres of Wehothia Farm be sold and the proceeds banked into a joint account to be opened and operated by the four administrators.

"From that account, the liabilities and the costs of the administration of the estate, as will be determined by the court, shall be paid. The balance of the proceeds shall be shared equally by all the 12 beneficiaries of the estate of the deceased," ruled Muchelule.

Muthera Farm was 4,292 acres. The judge ordered that 800 acres of it shall be sold to cover liabilities, debts and costs of administration of the estate, 150 acres to cover roads, police station, a school and other common amenities.

That left 3,342 acres which ought to be shared equally among the 12 beneficiaries. That meant, each beneficiary would get 278.5 acres.

He also directed that 10 acres of Ehothia Farm be sold in a bid to foot bills and another 10 acres be set aside for roads and police station. The balance was 625 acres.

He observed that Njeri Mbiyu lives here. At the same time, David Njunu Koinange and George Kihara Koinange also occupy potions of Ehothia.

"I ask that Margaret Njeri Mbiyu get 70 acres, David Njunu Koinange 60 acres, Paul Mbatia Koinange 60 acres, George Kihara Koinange 60 acres, estate of Mary Wambui Koinange as represented by Stella Njeri gets 60 acres and estate of Elizabeth Waruinu as represented by Stella Wanjiku Kibaara and Stephen Mungai Kibaara shall each get 60 acres," ruled Muchelule.

The judge also directed that the balance of 255 acres be equally shared by estate of Florence Wanjiku Koinange as represented by Barbara Wambui Koinange, the estate of Isaac Njunu Koinange as represented by Joyce Njeri Njunu, David Waiganjo Koinange, estate of Solomon Kihara Koinange as represented by widow Susan Kihara, Lennah Wanjiku Koinange and Eddah Wanjiru Mbiyu. Each will get 42.5 acres.

Waehothia Farm is 198 acres. Five acres were to be sold to pay liabilities and an equal amount of 5 acres was to be preserved for roads and common facilities.

Wanjiru got 20 acres of the farm. That left 168 acres.

Njuno, Mbatia, Kihara Koinange, the estate of Wambui and the estate of Waruinu each got 18 acres.

The remaining 78 acres was to be shared equally among Njeri, the estate of Wanjiku represented by the estate of Isaac Njunu Koinange as represented by Joyce Njeri Njunu, David Waiganjo Koinange, the estate of Solomon Kihara Koinange as represented by Susan Kihara and Lennah Wanjiku Koinange.

Kiambaa property was Koinange's inheritance from his father which the elders gave to Wanjiru, but the Court of Appeal ruled it belonged to the estate. The court gave Wanjiru half an acre of the parcel and the balance shall be shared equally by the other 11 beneficiaries.

Justice Muchelule said that if the 284 million would be available, then it would be shared equally by all the 12.