Battle for former police chief estate rages on, judge refuses to step aside

Former Nairobi Provincial Police Chief Timothy Mwandi Muumbo. [File, Standard]

A Family Court judge has dismissed an application by the daughter of former Nairobi Provincial Police Chief Timothy Mwandi Muumbo to recuse herself from the long-running case concerning his billions, over allegations of bias.

Justice Patricia Nyaundi ruled that Carolyn Kalunde provided no evidence to demonstrate judicial bias or corruption.

“No attempt has been made to lay before me a basis upon which she believes I am biased. Her primary issue is that she considers it possible I may not be a suitable person to hold the office of a judge.

‘‘Well, until my employer decides on that question one way or another, I do have a duty to sit,” said Justice Nyaundi.

The judge also rejected Kalunde’s application to rope in the Ethics and Anti-Corruption Commission (EACC) in the decade-long war.

Kalunde had alleged that there was a complaint before the Judicial Service Commission over a ruling delivered earlier in the case.

She argued that EACC should also be allowed to come on board to investigate the judge.

By any measure, Muumbo was powerful and wealthy.

When he died a decade ago, he hoped for a quiet exit from the earth, surrounded by his family.

Today, he lies in the grave after spending five years in the cold storage of Lee Funeral Home, waiting for the day when his children would agree on the way forward.

Court battles

Muumbo, a billionaire, exemplifies how unending court battles are costly and emotionally draining.

Despite owning assets worth about Sh1 billion, it took five years for courts to determine his final resting place, and when he was buried, the mortuary fees were paid by a loan.

When he died on June 22, 2015, he had Sh1.2 million in cash in his house

However, trouble arose over where he was to be interred: whether he would lie next to his first wife at his ancestral home in Nzatani, or in Mbakini.

He married his first wife, Phiatah Kathumbi, in 1957. They had ten children and resided in Nzatani village, Mwingi.

The two parted ways in 1976 after Kathumbi discovered he had a second wife, Josephine Kioko, with whom he lived in Narok, then Kakamega, and finally in Kileleshwa, Nairobi. They had five children.

Muumbo and Kathumbi, however, never divorced.

Muumbo’s three children — Kasim, Munyasya and Kalunde — sued their eldest brother, Mbuvi, and stepbrother Mwinzi.

This war began in the magistrate’s court and escalated to the High Court

One side, Kasim, Munyasya and Kalunde, called 11 witnesses to support their argument that he should be buried in Nzatani, their ancestral home, next to his first wife.

On the other hand, Mbuvi and Mwinzi called eight witnesses to buttress their argument that Muumbo wanted to be buried in Mbakini, where his second wife was buried, according to a Will produced in court.

The intricacies of the case involved the supremacy of a Will and Kamba culture.

After hearing the parties, Justice Margaret Muigai overruled Mbuvi and Mwinzi and ordered that Muumbo should be buried at Nzatani. She ruled that the land was accessible to all children and family, while Mbakini was not open to all.

Struggling and isolated

“Although custom is not mandatory, if the wish of the deceased is not clear or known, then the closest person(s) shall bury the deceased, and it may be on ancestral land or his land as the family agrees. The relationship with the deceased’s wives, though relevant, is not the predominant factor,” Justice Muigai ruled.

She also held that, since Mbuvi was the eldest son, he was to lead all the deceased’s children to bury him and facilitate settlement of outstanding mortuary fees. This was on August 6, 2018. Justice Muigai also ordered Muumbo’s cousin to chair the funeral meetings.

The judge observed that the family’s acrimony originated from Muumbo and his two wives.

She noted that members of Kathumbi’s household — except for her eldest son, Mbuvi — watched as they grew up unaware of the circumstances, with their mother struggling and isolated.

They lived with her and received an education, but as they grew older, they painfully watched her decline in age, health and overall well-being.

Once they were adults and able to support her, they did what they could, but she eventually left, leaving them behind with their father.

On the other hand, Josephine’s children suffered resentment from Kathumbi’s household, as they were deemed more advantaged and in close proximity to their father.

Justice Muigai found that although Muumbo tried to reconcile his children, upon his death they retreated into their homes.

“Instead, the children of the deceased have stepped into the shoes of their respective parents and continue zealously to protect each parent’s rights and/or attempt to resolve the family dispute.

‘‘In the process, they have all used the deceased’s burial as a means of settling scores instead of prioritising a respectful and decent burial of their late father,” she ruled.

“As human beings, they may have made mistakes that affected the family, and the family can only move forward, as the deceased pledged in the video recording, reconcile and live in harmony. Therefore, priority shall be to bury the deceased.”

The judgment did not end the fight. Twenty-four days after the judgment, Mbuvi and Mwinzi went back to Justice Muigai.

This time, they wanted her out of the succession case and also asked her to set aside her judgment on the burial grounds.

They argued that their siblings, prior to the judgment, had boasted that she would tilt the scales of justice in their favour.

The two also alleged that an unnamed informer had leaked to them that they would lose the case.

They also accused the judge of bias.

Kasim, Munyasya and Kalunde denied the claims.

Another verdict

Justice Muigai had to write yet another verdict to settle the contention. She ruled that the claims by the two were unsubstantiated and could not be corroborated.

“I wish to state that he who alleges must prove the allegations. I have no spokesperson to speak on my behalf on judicial matters except through court orders, rulings or judgments that are subject to review or appeal,” she ruled on November 16, 2018.

When Justice Muigai finally settled the burial battle, the mortuary bill was at Sh3 million.

At the same time, contributions were made towards funeral arrangements by the immediate and extended family and from his estate.

Initially, the fight was between siblings, but the mortuary and a pathologist also found themselves embroiled in the saga.

The mortuary was sued over the fees it charged to preserve the deceased, which stood at Sh4.7 million

The pathologist was sued over Muumbo’s missing heart.

Meanwhile, Kalunde told the court that Munyasya took a loan and paid Sh2.9 million to the mortuary, leaving a balance of Sh2.1 million.

At the same time, they had also deposited Munyasya land title deed as a guarantee for the funeral home.

However, there was another hurdle: a succession case before the Family Court and another suit at the Constitutional Court.

Missing heart

Former government pathologist Moses Njue was sued at the Constitutional Court over the deceased’s heart. The contention was that his heart was missing, and his family accused the pathologist of having a hand in the disappearance.

Lee Funeral Home was also roped into the case filed by Kasim before Justice James Makau.

Kasim wanted the court to compel the pathologist and the morgue to produce the lost body part.

Then there was a criminal case. Dr Njue and his son, Lemuel Mureithi, were charged at a magistrate’s court over the heart.

The two were, however, acquitted three years after the court found no evidence to link them to the missing organ.

At the same time, the family was before the civil court, brawling over paying the mortuary bill. This case stemmed from the succession duel before the Family Court.

In the family case, civil appeal number 7 of 2016, Kasim, Munyasya and Kalunde claimed that despite the judge directing that they settle the case quickly so that they could bury the former police boss, their siblings — Mbuvi and Mwinzi — who were controlling the estate, had defied the orders.

The trio asked the court to compel the duo to release Sh7 million, arguing that this was part of the rent they collected from Muumbo’s estate, plus an additional Sh60 million allegedly obtained from selling a piece of land in 2015.

Mbuvi and Mwinzi opposed the application filed before Justice Thande Mugure this year.

They accused Kasim, Munyasya, and Kalunde of abusing the court process, arguing the trio had filed another application in a separate family case seeking Sh15 million to meet the burial costs last year.

When Lee Funeral Home released the body, it gave the family six months to settle the outstanding charges.

This sparked yet another battle before the Civil Court. Kasim, Munyasya, and Kalunde sued the funeral home seeking to extend the time to foot the bill by six months.

They filed their case before Justice Joseph Sergon on May 7 2021. They urged the judge to block the mortuary from disposing of the security provided by Munyasya.

In this case, the trio blamed Mbuvi and Mwinzi for failing to release burial money.