Kivuitu's family in bitter feud over prime property

The High Court has ordered the family of Samuel Mutua Kivuitu, the former Chairman of the Electoral Commission of Kenya, to negotiate how his wealth will be distributed.

Justice Stephen Riechi, in his ruling, directed Kivuitu’s widow and her stepchildren to compile a list of properties they agree to share and to exclude those that remain in dispute.

Kivuitu passed away in 2013, leaving behind his second wife, Priscilla Ndululu, and children from both marriages.

His first wife, Mary Ann Matanu Kivuitu, had children who were part of the succession dispute, with two of them, Matanu’s son, Mutua, and Ndululu’s son, Kilonzo, appointed as administrators of the estate.

The family has been embroiled in a seven-year-long court battle over the distribution of Kivuitu’s wealth. Central to the dispute is a property located at Garden Estate, which has become the focal point of a bitter feud. Despite attempts at mediation, the Garden Estate property remains contentious.

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Ndululu’s lawyer, Peter Wena, told the court that the parties agreed on everything except the Garden Estate property. He said it was matrimonial property, which she was entitled to as a widow.

According to Wena, Ndunge, one of Kivuitu’s children from his first marriage, represented by lawyer Ndegwa Mureithi, insisted that the property should be shared equally among all the beneficiaries. She argued that it should be considered part of the estate, which should be distributed among family members. “There is convergence on all issues except for the Garden estate. The issue is whether the property is a matrimonial property or a part of the estate which should be distributed. My client shared life interest as the widow while Mureithi’s client wants the same to be shared among the beneficiaries equally,” said Wena.

The legal representation for the other children of Kivuitu – Mumo, Mutua, and Musili – also weighed in on the matter. Their lawyer Sheilla Alusiola expressed dissatisfaction with the current mode of distribution, claiming that there were two distinct proposals in contention. She further stated that the court needed to make a decision after hearing the arguments from both sides. Among the properties in dispute were the farms at Kwa Macheli and Kwa Ndeto.

Court records indicate that Kivuitu’s estate primarily consists of real estate, with thirteen properties listed under his name. These include properties in Garden Estate, Kwa Ngina, Kwa Ndeto, two at Wamunyu, Mwingo, Kwa Musyoka, and Katelembu (the homestead where he was buried). Additionally, Kivuitu owned properties in Syokimau, Sophia, Mwisua Town, and Kwa Mateli.

In the first proposal, it was suggested that the Garden Estate property should be divided equally among all seven beneficiaries. Other proposals included assigning specific properties to certain family members. For instance, Mumo and Makusya were to inherit the Kwa Ngina property, while Kilonzo and Mutua would share the Kwa Ndeto plot. Ndunge and Musili were suggested to share one of the Wamunyu properties, with Makusya inheriting the second Wamunyu plot.

Further proposals, included that Ndunge, the only daughter of Kivuitu, should inherit the Mwingo 2 property, and that the widow, Ndululu, should inherit the Kwa Musyoka plot. The main homestead at Katelembu was suggested to be retained in Ndululu’s name, but for the entire family. Additionally, it was proposed that the widow retain Kivuitu’s only vehicle, while Fred Mutua would inherit the Syokimau property.

There was also a proposal to register the remaining properties – Sophia, Mwasua Town, Mwingo 1, and Kwa Mateli – in the names of Mumo and Kilonzo, who would hold them in trust for the family.

However, Ndululu objected to the Garden Estate property being included in the distribution. She insisted that it was her rightful property to share with her late husband. In her proposal, Ndululu withdrew her earlier request to exclude Kethi and Karende Ngoka from the beneficiaries and decided to retain only the seven identified by Mumo and Kilonzo.

In her argument, Ndululu stated that the Garden Estate property, which spans approximately two acres, was the matrimonial home where she and Kivuitu had lived since their marriage in 1983. She asserted that the property had a main house and two guest houses, and that all of Kivuitu’s children had lived there at some point, with the exception of Makusya and Kilonzo, who still resided in the guest houses.

The widow also argued that the Kwa Ngina land, which is approximately two acres and undeveloped, was worth around Sh2 million, and that it should be given to Mumo and Makusya. She also proposed that the Kwa Ndeto property, valued at around Sh1 million, should be shared between her and Kilonzo.

In the case of the Wamunyu properties, Ndululu contended that Kivuitu owned several plots in Wamunyu, and suggested that these should be divided between herself and Kilonzo. She further argued that the second Wamunyu plot, which contained six plots, should be left to Makusya and Musili. Additionally, she proposed that the Mwingo 2 plot should be inherited by Ndunge, and the Kwa Musyoka property should remain with her.

Ndululu also requested that the five-acre Katelembu property be left to Ndunge and Mutua, who had contributed to its purchase. As for the family homestead, she suggested that it should remain in her name, as she held a life interest in it. She argued that the Syokimau property should be transferred to Mutua.

In a counter-argument, Mutua and Ndunge opposed the inclusion of the Garden Estate property in Ndululu’s list. Mutua claimed that the widow had no right to claim sole ownership of the property, as it had been jointly owned by Kivuitu and his first wife, Mary Ann Mutanu Kivuitu. The two argued that the property should be sold, and the proceeds shared among all the beneficiaries.

Additionally, Ndunge claimed that Ndululu, being her stepmother, did not have her best interests at heart and should not be entrusted with the Garden Estate property. She argued that the property should be shared among the children, as it had originally been acquired by her mother and Kivuitu long before Ndululu entered the picture.

Ndunge’s opposition was further supported by the landmark matrimonial case between Kivuitu and Mutanu, his first wife. In that case, the High Court had ruled that Mutanu was entitled to a share of the Garden Estate property, despite her not having contributed directly to its purchase. The Court of Appeal had ruled that a spouse was entitled to a 50 per cent stake in any property jointly owned with a husband, as was the case with Kivuitu and Mutanu.

Ndunge argued that the distribution of Kivuitu’s estate should follow the law governing the intestate succession of a polygamous man. She suggested that the estate be distributed equally among all of Kivuitu’s children, in line with the principles of fairness.

On the other hand, Ndululu argued that the properties should not be distributed equally, as she had lived with Kivuitu for decades and had made substantial contributions to the family. She emphasised that the wealth accumulated during their marriage should be treated as her rightful inheritance.

The family had previously attempted to resolve the dispute through mediation. Mutua indicated that after one meeting, the family reached an agreement on most of the properties, except for the Garden Estate property. He stated that a partial agreement was signed in June 2023, although Ndululu did not sign it. He argued that the mediation agreement should be set aside, as there was no consensus among the family members.

The matter of the Garden Estate property has remained a point of contention. Ndunge, who was opposed to Ndululu’s claim over it, argued that the property should be sold and the proceeds shared among all of Kivuitu’s children. She insisted that the estate should be distributed in accordance with the law governing intestate succession, specifically in relation to the property of polygamous men.

This complex family dispute, involving multiple properties, legal arguments, and competing claims, continues to unfold in the Kenyan courts. With such a large estate at stake, the resolution of this matter will likely have significant implications for the Kivuitu family and the future distribution of assets in similar inheritance cases.

Kivuitu first gained national attention as the defence lawyer for a fiery Member of Parliament accused of attempting to overthrow the government of Mzee Jomo Kenyatta in 1971.

At the time, Kivuitu was a young, charismatic lawyer and MP for Parklands (now Westlands). He represented Gideon Mutiso, the MP for Yatta, who pleaded guilty after a single day of hearings before acting Senior Resident Magistrate SK Sachdeva.

An alumnus of Machakos Boys, Makerere University, and the University of Dar es Salaam, had worked as a State counsel and resident magistrate following Kenya’s independence.

In the 1974 elections, Kivuitu lost to Wachira Waweru by just five votes, in a highly contentious contest in which three-quarters of the incumbent MPs lost their seats.

He suffered further defeats in the 1983 and 1988 snap elections, after which he withdrew into his struggling private legal practice and a fish and chips shop in the city.

However, Kivuitu was brought out of obscurity by former President Daniel arap Moi, who appointed him as deputy head of the defunct ECK, under Zacchaeus Chesoni, ahead of the 1992 General Election.

Kivuitu succeeded Chesoni as the head of the Commission, overseeing the 1997 elections, the 2005 Constitutional Referendum, and the infamous 2007 General Election. In this election, he was reappointed by President Mwai Kibaki.

The mishandling of the 2007 elections was blamed on Kivuitu’s lack of urgency and careless comments, including his infamous admission, “I don’t know who won the elections,” despite having declared Kibaki the winner over his challenger, Raila Odinga. This remark, made amid a politically charged atmosphere, was followed by widespread post-election violence, resulting in the deaths of 1,300 Kenyans and the displacement of over 600,000 people.

A father of seven, Kivuitu passed away from throat cancer at MP Shah Hospital on February 25, 2013, aged 74.