One of the sons of the late Peter Kago, the founder of Naivas Supermarkets, has challenged a will allegedly authored by his father.
In his submissions in the Court of Appeal, Newton Kagira questioned the validity of the will presented in court with respect to the sub-division of his father’s estate.
Naivas is one of the leading retail chains in the country with 84 outlets as of June 2022, employing more than 8,000 staff.
On Tuesday, when the case came up for hearing in Nakuru, Court of Appeal judges Kathurima M’Inoti, Jamila Mohammed and Sankale ole Kantai directed that the hearing be adjourned as parties agree on the issue of substitution of the late Simon Gashwe Mukuha.
In Kagira’s submission filed in court on April 27, he wants the court to set aside a judgment of the High Court in Nakuru delivered on October 31, 2014.
Kagira, who owns Greenmart in Kayole estate, Nairobi, wants the court to direct that parties be at liberty to litigate the disputed ownership of Naivas Limited before the High Court Commercial Division, which has jurisdiction to hear and determine the matter.
Justice Anyara Emukule, in the 2014 ruling, dismissed an application by Kagira who wanted his brother Simon Gashwe Mukuha (now deceased) to be barred from inter-meddling with their father’s estate and specifically Naivas Limited shares.
Kagira then claimed his brother and his agents had unlawfully embarked on selling Naivas shares owned by their late father in total exclusion of other beneficiaries of the estate.
In his reply then, Gashwe said their late father had 10,000 ordinary shares translating to 10 per cent of the capital in Naivas Limited. He said the shares were distributed in accordance with the will of the deceased. Gashwe, as per the will, got four per cent of the shares, David Kimani Mukuha four per cent, Grace Wambui six per cent and Linet Wairimu six per cent.
He said Kagira’s objection was unmerited as the directors of Naivas Limited had not resolved to sell the shares. Justice Emukule, in his ruling, said Kagira had no interest, legal or equitable, in Naivas Limited.
The judge said Kagira was given his inheritance by his father which included a business store and a house. Dissatisfied with the decision, Kagira lodged an appeal in August 2016.
In his submissions filed at the Court of Appeal, Kagira said the extract of the will filed by Gashwe is devoid of the element of a will. The appeal had been scheduled for hearing on Tuesday but was adjourned after the court was informed that Gashwe passed on.
Kagira states that a glimpse of the purported extract of the will is authored by someone else.
The author of the will, he said, went on to tell the story of what property the deceased had and also gave his direct opinion that the deed fell short of conclusion. He also quoted the deceased’s bank account as of May 10, 2010, yet he (deceased) died on May 6, 2010.
“This proves the author is not our late father hence it cannot be termed as his will. It is overt that the circumstances under which such testamentary averments made the extract of the will are suspicious and the will ought to be declared invalid for being devoid of an essential element of a will,” stated Kagira.