End of epic battle for freedom fighter’s estate

It has taken 18 years and 16 judges to determine an inheritance battle over property worth billions of shillings belonging to the late freedom fighter Fred Kubai.

Mr Kubai, who was jailed in 1952 alongside five other freedom fighters, among them Jomo Kenyatta, died on June 1, 1996, aged 79, triggering a bitter family fall-out that saw four women claiming to be his widows fight one Christina Gakuhi.

According to the children of the four women, Ms Gakuhi was never married to the patriarch but had only worked as a maid before she allegedly forged a will entrusting the freedom fighter’s entire estate to herself.

Consequently, two succession cases were filed, one by Gakuhi seeking to be the administrator of the estate and another by the children of her ‘co-wives’. 

The children referred to Gakuhi as a househelp employed by their father and who, therefore, had no right to inherit or administer the estate.

The children accused Gakuhi of engaging in falsehood by pretending to have been appointed the sole executor of the will. They said Kubai was too ill to have written a will.

Gakuhi was accused of fraudulently forging a death certificate dated July 3, 1996 in her application for grant and adopting the name Kubai on her national identification card without an authenticated affidavit.

The second case was filed by Kubai’s sons, Gideon Kubai, Samson Kubai and Gideon BlackLaw Kubai, who wanted to be declared joint administrators of their father’s estate, which they got on March 4, 1998.

Gakuhi filed an application dated June 22, 1998, seeking the revocation of the grant. She wanted the court to stop Kubai’s sons from acting as administrators until her application was heard and determined.

The court noted that it was likely to take some time before it was heard and finalised. As a result, the court granted the orders restraining the sons from managing Kubai’s assets. The two petitions were combined.

The main issues laid out for determination were whether Kubai left a valid will and whether Gakuhi was a widow of the deceased.

Two documents

Gakuhi produced before the court two documents dated January 19, 1991, as the will written by Kubai. One of the documents was handwritten and the other was a typed version.

High Court judge William Musyoka, in his ruling, said the typed document did not meet the requirements of succession law although it was allegedly signed by Kubai and one witness. The court noted that the second witness did not sign before Kubai died.

The court heard from David Mereka, who was an advocate and a secretary of the late freedom fighter, that in 1991, Kubai came to his office assisted by Gakuhi with a handwritten will.

“He was a strong and principled person and insisted that he would not change and even spelt out how his burial would be conducted,” Mr Mereka said.

The contested will stipulated that Kubai’s grave would not be cemented and that there would be prayers for his departed soul but forbade songs, speeches and flowers during the ceremony.

 Despite his prominence as a politician, Kubai wished to be buried in a private ceremony attended by a few family members within 36 hours of his death.

Kubai’s burial wishes were ignored as he was given a State funeral.

The will also set out Gakuhi as the sole administrator of the estate.

Kubai is said to have raised issues about his four other wives. In the will, he narrated how he was separated from Sofia Muthoni, Rebecca Wangeci, Rose-Ann Grace and Lucy Mwangi.

He also declared that he had educated their children and given them an inheritance before parting ways.

This was opposed by Kubai’s children, who said it was not a representation of their father’s character.

Mary Sidi, the daughter of Kubai’s second wife Rebecca, described her father as caring and unable to disown his relations.

Justice Musyoka ruled that the handwritten document was valid on the grounds that the children did not deny that the writing on the document before the court belonged to their father.

Musyoka said no medical records were brought before him to support the claim that the deceased was in no state of mind to make a valid will.

He admitted Mereka’s evidence that Kubai was in sound state.

“The court has a responsibility to honour and uphold the wishes of a person as expressed in his will,” the judge said.

Gakuhi testified that she married Kubai in 1980 and they started living together as husband and wife.

Albion Wainaina Gitere, a cousin of the deceased, testified that he accompanied Kubai to Gakuhi’s family to take her for a wife. He said they met the family and dowry arrangements were made. They were to pay Sh25,000 and gave Sh5,000 on that day. The court heard that Kubai and Gakuhi did not have children together.

Justice Musyoka ruled that the court gave due consideration that a Kikuyu customary marriage is completed after introductions, payment of dowry and a traditional wedding ceremony, thus Gakuhi was Kubai’s customary wife.

He pointed out that even if he was to find Gakuhi was not married formally, there was sufficient evidence to presume marriage from prolonged cohabitation between the two. He ruled that she was Kubai’s widow and that the will was valid, therefore giving her the right to execute it.

The larger family sought a review of Musyoka’s judgement before his counterpart, Luka Kimaru, claiming the judge had relied on forged documents.

A report by the directorate of criminal investigation on the validity of the documents was introduced before Kimaru.

The report dated March 19, 2014, pointed out that the death certificate produced by Gakuhi could not be fully confirmed as there was no independent death entry number relied on as being the records of the registrar of births and death.

The court heard that there was no death register for that certificate.

The report also indicated that the ID card used by Gakuhi had serial numbers that could not be traced in the national registration bureau database and did not constitute an ID card number.

The number in the report contained 12 numbers as opposed to seven or eight found on Kenyan ID cards.

The judge ruled that they were trying to introduce new evidence, which was meant to have been produced at the time of trial.

Justice Kimaru ruled that they ought to have appealed instead of seeking a review and that there was not enough evidence to convince him to review Musyoka’s judgement.

The children plan to appeal the two judges’ decision.