A woman who had been accused of forging former freedom fighter Fred Kubai’s will has been let off the hook.
At the same time, High Court judge Chacha Mwita ordered the State to pay Christina Gakuhi Sh1 million for wrongful arrest and prosecution.
Justice Mwita ruled that the Director of Public Prosecutions Keriako Tobiko breached the law when he allowed the woman to be charged in a succession case.
He found that Kubai’s children could not re-awaken the succession case by having Gakuhi, whom they claimed was their father’s househelp, charged for falsifying a hand-written will. The will was the source of a 21-year succession battle.
The case was between Gakuhi and the children of her four co-wives.
“Although the DPP and the police retain the constitutional mandate to investigate and prosecute offences, such mandate has to be in the pursuit of a punishment and prevention of crime rather than serve a private goal of securing a different outcome in a civil suit between the person accused and the person who initiated the complaints,” the judge ruled yesterday.
Gakuhi was charged before Resident Magistrate Pamela Mugure in 2014 with forging a national identity card and changing her name from Christina Gakuhi Kiragu to Christina Gakuhi Kubai with intent to deceive.
The second count she made a hand-written will dated January 19, 1991, and purporting it to be a genuine will written by Kubai.
The case started after Kubai’s death on June 1, 1996, setting off a family fall-out between Gakuhi and her co-wives’ children.
Justice Luka Kimaru rested the case, whose subject matter was the same issues that had landed in the magistrate’s court and later the constitutional court.
Justice Kimaru was in agreement with Justice William Musyoka that indeed Gakuhi had validly inherited Kubai’sproperty.
However, Kubai children – Sofia Muthoni, Rebecca Wangeci, Rose-Ann Grace, and Lucy Mwangi – held that Gakuhi was never married to their father but had only worked as a maid before she allegedly forged a will entrusting the freedom fighter’s entire estate to her.
Before Justice Mwita, Gakuhi told the court that the succession row had already been determined and Kubai’schildren were using a lower court to review the orders of the High Court.
She argued that in the succession suit, there was no evidence that she had forged the will or that her identity had changed in order to acquire the vast estate.
The judge agreed with her arguments presented by her lawyer, Gibson Kamau.
He observed that the only way Kubai’s kin would have a second round of the fight was through an appeal and not through charging the woman.
“While my sympathies are with the interested parties (Kubai’s children) who may have a genuine complaint against the petitioner, without prejudging the merits of the case, the procedure of litigating this complaint through the criminal process, where there are already two decision on the matter in its civil process, is an abuse of the court,” the judge observed.