Victory for fifth wife as Kubai's property battle is finally settled

The Court of Appeal has ended a 28-year-old duel over the wealth of former freedom fighter Fredrick Polwarth Kubai.

Not only did justices Gatembu Kairu, Francis Tuiyott and Ngenye Macharia throw out an appeal filed by Kubai’s grandson, Andrew Kamau, but they also condemned him to pay Kubai’s fifth wife Christina Gakuhi, the cost of the case.

The three Judges affirmed that they could not reverse Kubai’s wishes simply because his children did not want anything to do with Gakuhi.

At the same time, the trio were of the view that they could not equally alter Kubai’s mode of distribution of his estate.

They ruled that from the High Court judgment by Justice Asenath Ongeri, all the other Kubai’s children were happy with what they got from the deceased, save for Kamau.

“From the decision of the learned Judge, we conclude that the Will being challenged was found to be a valid Will and the deceased’s sons did not challenge its authenticity.

“It therefore follows that the beneficiaries of the deceased’s estate were satisfied by the mode of distribution in their deceased father’s estate,” the bench headed by Kairu ruled.

Justice Kairu, Tuiyott, and Ngenye joined the list of judges who handled the almost three decades-long battle pitting Gakuhi and children from other wives.

Others who have heard the case are justices William Musyoka, Luka Kimaru (now at the Court of Appeal), Aggrey Muchelule, Ongeri, Hannah Okwengu, Asike Makhandia, and Patrick Kiage.

In his appeal, Kamau raised 20 grounds. He argued that Ongeri had erred by finding that he was not a beneficiary of the estate.

According to him, he was representing the interest of his late father Samson Kibuthu Kubai.

He also sought for reasonable provisions.

In her response, Gakuhi’s lawyer Kamau Kuria told the court that the respondent filed Succession Cause No. 1860 of 1996 but instead of the family members filing a cross-petition, they chose to file Succession Cause 1940 of 1998.

Dr Kuria explained that Justice Musyoka agreed with his client that Kubai had a valid written will and that she was a legal wife.

The lawyer stated that each of the five houses was then allowed to share the estate through an order issued by Justice Ongeli.

He stated that Kamau never contested Justice Musyoka’s judgment, nor did he seek his greenlight to file an appeal.

Kamau urged the court to end the battle, saying that Gakuhi was in her sunset years and should be allowed to enjoy the fruits of her judgment.

This is the second time the Court of Appeal is throwing out cases filed by Kubai’s grandchildren.

It first dismissed in 2021 an application filed by Kubai’s granddaughters to join the succession battle.

Justices Okwengu, Makhandia, and Kiage unanimously agreed that Kubai’s grandchildren Mary Sidi Mendza and Jane Njeri Njeru could join the case filed by their late father Moses Mendza Kubai against Gakuhi.

The application had been filed by Mendza, Njeri and Kamau. However, Mendza died on June 6, last year, leaving his two children to take up the fight. 

However, the Judges found that they could only be enjoined in the case if they were pursuing the case on behalf of their father’s estate and needed to provide proof that they had been appointed as administrators of the estate.

The judges also found that Mendza was not part of the appeal filed by Kamau - the case his two sisters were seeking to be enjoined in.

“Moses having died during the pendency of the appeal, the applicants could only pursue the appeal for the benefit of the estate of Moses, if they were appointed as legal representatives/administrators of the estate of Moses. We find that the motion is improperly before us. It is accordingly struck out,” they ruled.

The heated succession case pitted Kubai’s children and his fifth wife Gakuhi. Kubai’s children claimed Gakuhi was a house help.

In her response, she asserted that the patriarch married her and had paid dowry to her family.

Mr Kubai in his will detailed how he parted with his four wives. This was central to the vicious court battle.

The case had been determined before the High Court twice and in favour of Gakuhi.

In the case, Geoffrey Chania, a forensic examiner at the Director of Criminal Investigations, had claimed that the signature in the will was not from the same person. 

“In my opinion, the signatures were made by different authors,” Chania wrote.

However, Justice Ongeri in her judgment dated August 2, 2019, found that the will was valid and that the patriarch had provided for each of his children.

“I find the testator catered for all of his beneficiaries in the said will. His beneficiaries were his previous wives and children,” ruled Justice Ongeri.

So expensive is the battle of will that it cost the State Sh1 million after the court found that forgery charges tramped against Gakuhi were illegal.

Justice Chacha Mwita ruled that former 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 charged for falsifying the handwritten will.

The will in the contest is dated January 19, 1991.

The deceased had four wives who he allegedly parted with before his heart settled for Gakuhi.

From the court documents, Gakuhi never had children with the deceased. She, however, had two sons from a previous relationship.

He recognised the two as his own children and had left them everything he had bought or built with her.

Kubai died on Madaraka Day in 1996.