Kibaki's heirs fight forgery claims, as Jimmy shifts stance on DNA test

The late former President Mwai Kibaki's son Jimmy Kibaki delivers a speech during the State funeral service at Nyayo Stadium in Nairobi, on April 29, 2022. [File, Standard]

Former President Mwai Kibaki's children have urged the Family Court to dismiss a report concerning his will submitted by Jacob Ocholla Mwai, who claims to be his child.

Ocholla filed an application before High Court Judge Eric Ogola, asserting that a forensic analysis of the signature on Kibaki's will was a forgery.

In their response, Judy Wanjiku, Jimmy Kibaki, David Kagai, and Anthony Githinji argued that although Ocholla submitted the report, it was not authored by an expert. They described the report as mere hearsay, stressing that there is no evidence to suggest that Kibaki's final wishes were altered or that his signature was forged.

"In so far as the Chamber Summons Application makes allegations of forgery and fraud, it is bad in law, being based on nothing except inadmissible hearsay evidence. The affidavit supporting the Chamber Summons Application purports to produce the expert report of 'Spectral Forensic Services - Forensic Document Examination Report' when, in fact, the deponent is not, nor claims to be, the maker of that document, which is a report expressing the maker's opinion on the matters it addresses," the response reads in part.

Meanwhile, it has emerged that Jimmy Kibaki may have changed his position regarding a DNA test with a woman identified only by the codename JNL, who also claims to be Kibaki's daughter.

Initially, Jimmy hired Muriu Mungai Advocates to represent him in the case. According to JNL, she had lengthy discussions with Jimmy in an attempt to settle the dispute amicably. She stated they agreed to meet at the Lancet Kenya Clinic in Upperhill, Nairobi County, for a DNA test, which they allegedly underwent on July 5, 2023.

JNL further claimed that she met Jimmy again on August 29, 2023 at Haandi Restaurant in Westgate, Nairobi, where they held extensive discussions about the case. She also said that they later met with Jimmy's lawyer, Peter Munge, alongside her own legal counsel, and agreed to draft a consent agreement.

"On Friday, March 8, 2024, my brother James and I met again at a private office on Peponi Road, Westlands, to discuss the possibility of an out-of-court settlement. He reiterated the need for an amicable resolution and an end to litigation, for the sake of transparency and family unity," JNL stated.

Subsequently, Jimmy replaced Muriu Mungai Advocates with Ashford Muriuki Advocates. The new lawyers filed an objection, arguing that both Ocholla and JNL had come too late and did not merit a court order for DNA testing.

Muriuki contended that ordering DNA tests on Kibaki's children would be an infringement of privacy. "It offends public policy, public interest, and good order in society for parties to sleep on their rights throughout the lifetime of the deceased, only to emerge after the death to request the court to usurp the role of parents, guardians, or next of kin, and compel siblings to undergo DNA testing against or without their consent, solely to share or benefit from the estate," argued Muriuki.

On December 23, 2016, former President Emilio Mwai Kibaki signed a six-page document outlining his final wishes and how his wealth was to be passed to his descendants.

With a few strokes of the pen, Kenya's third president, an economist by profession, set out clear instructions on how his estate was to be managed and grown by his children, ensuring that his legacy would be preserved for generations to come.

In his will, Kibaki explicitly excluded his children-in-law from the line of succession. He also instructed that the residue of his wealth should be managed through a holding company.

The will, written three years after his retirement from office following a 10-year presidency, detailed Kibaki's preferred burial site, appointed executors, specified gifts, the handling of the residue, inheritance arrangements for grandchildren, and transitional arrangements for the holding company.

Kibaki wished to be buried in a family mausoleum, instructing that his family would oversee the construction of the final resting place. Despite his national stature, he preferred a private family burial site.

Kibaki passed away on April 21, 2022 at the age of 90.

"I declare that I wish for my mortal remains to be buried in a Kibaki family mausoleum to be constructed by my estate," the will now before the High Court Family Division in Nairobi states in part.

Justice Aggrey Muchelule, now a judge of the Court of Appeal, previously handled Kibaki's succession case.

In his will, Kibaki appointed his children Judy Wanjiku, Jimmy Kibaki, David Kagai, and Anthony Githinji as joint executors, emphasising they must act as a single unit, not independently. "I appoint my children to be joint, and not several, executors and executrix of my will," he wrote, referring to them simply as "my children."

Beyond burial arrangements and estate management, Kibaki gifted all his assets to his children, except for debts, assets sold before his death, and government taxes. "I give, devise, bequeath, pay or provide for my funeral and testamentary expenses, any debts owing by me, and all duties payable out of my estate. All such expenses, debts, duties, and legacies shall be paid primarily out of my personal and movable estate," he stated.

He directed that cash held solely in his name be distributed equally among his children. He also instructed that any identified assets be distributed per a memorandum addressed to the executors. "If no such memorandum exists, my executors shall not be required to make any distribution under this clause," he added.

Kibaki also specified that his personal effects should be bequeathed to the Mwai Kibaki Foundation. The will notes that these personal papers and effects should not be disposed of by the foundation.

Any remaining assets, personal effects, and money not previously gifted to his children and after settling debts and duties would constitute the residue, which was to be transferred to a holding company.

Kibaki and his children would be shareholders in this company, but upon his death, his shares would be divided equally among his children. "If the holding company structure is not in place at the time of my death, then all my interest in the residue shall be transferred in the most tax-efficient manner into ownership of the holding company, with each of my children holding equal shares," he wrote.

However, he imposed a condition that shares would only be issued if all children agreed to be bound by a shareholding agreement.

Lastly, Kibaki made clear that his estate should remain within his bloodline. He directed that his children should pass the wealth equally to his grandchildren, excluding any spouses from inheritance.