Third wife gets lion’s share of dead husband’s estate

The third wife of a Nyeri tycoon will take home the lion’s share of her late husband’s multi-million shilling estate following conclusion of decades old case in which her co-wives and their disinherited sons had challenged the Will.

The Court of Appeal has given a green light to Mary Wambui who bore the late Onesmus Ikiki one child to enjoy 70 per cent of his wealth against the wishes of her co-wives, Tabitha Wambui and Leah Njoki who bore him 20 children.

Ikiki whom the court described as a “solid polygamist and prolific sire” also left out two of his sons in distributing his estate worth Sh200 million for allegedly bringing cases against him. The will be executed by former International Criminal Tribunal for Rwanda judge, Justice (Rtd) Lee Muthoga.

24 years

Three appellate judges David Musinga, Patrick Kiage and Alice Murgor in settling the matter which has lingered in the courts for 24 years said it is only the deceased who knew why he consciously and deliberately extended such generosity to his last and youngest wife.

“It was within this very exercise of testamentary freedom that the deceased elected to leave out his sons, John Wagura and Joseph Ndungu, and in the same breath bequeathed the lion’s share of his estate to the third wife for reasons that were personal to himself,” the judges said in a judgment issued last week. The judges also declined to have the matter returned to the High Court because the evidence by two of the deceased’s sons and a handwriting expert had been rejected by that court.

The businessman who had considerable moveable and immovable properties called Justice Lee Muthoga who was practising in the law firm of Muthoga, Gaturu and Company Advocates on January 29, 1993. In the presence of Muthoga, Mr Evans Gaturu and Mr Ezekiel Gichohi as witnesses, Ikiki is said to have bequeathed his third wife 70 per cent of the estate. He did not include some of his children and wives in the remaining 30 per cent to be shared between the two other households.

On October 4, 1994, Ikiki, 77, who hailed from Othaya in Nyeri County, died as a result of diabetes complications.A week later, Muthoga disclosed to the family that the businessman had left a Will and the contents of the document were read to the children and wives, details that provoked objections from some of the family members.

There were disputes that the document was contrary to an oral Will he made in his lifetime and some of the properties listed did not belong to the deceased. Despite all this, two of the sons left out in the Will moved to court and obtained Letters of Administration on August 28, 1996.

They told the court that they had a good relationship with their father despite not being always in his company.

However, the third wife and Muthoga obtained orders that revoked and annulled the letters of grant and in June 2000, the former ICTR judge took out a petition for the written Will, saying he was named executor.

This was challenged by the other two widows and Ikiki’s seven children on the grounds that the document was a nullity influenced by the third wife. The court was told Muthoga was the deceased’s business partner and could not have prepared the Will and be an executor at the same time.

High Court Judge Mary Kasango heard the case and in dismissing it, said two of Ikiki’s children who challenged the document could not be relied upon by the court, adding that the handwriting expert’s claims on Ikiki’s signature could not be of assistance to the court because he did not submit his report.

The judge then granted the probate of the will to Muthoga.

Aggrieved by the decision, Tabitha, Leah and Ikiki’s six children moved to Court of Appeal on August 14, 2009 and on February 2, 2016. The two appeals were consolidated since they arose out of the same judgment that was delivered by the judge.

Four of the appellants wanted the matter remitted to the High Court for oral hearing and determination of the question of validity of the Will for the reason that evidence by one of the witnesses and the handwriting expert were wrongly dismissed and excluded.

Valid Will

In dismissing the case on May 10, this year, Court of Appeal said the Will has Ikiki’s signature and those of the two witnesses. “Having found that the Will was valid, it, therefore, follows that the deceased had the freedom to dispose of his earthly possessions as he deemed fit,” reads part of the judgment.

The appellate judges dismissed claims by the two widows that the estate ought to have been divided as per the Kikuyu Customary Law that calls for division of properties as per the number of households. The appellate judges also pointed out that those who claimed the Will was invalid failed to prove the nexus between the deceased’s ailment, literacy and age and his capacity to make a Will.