Talks to resolve the row pitting the family of former President Mwai Kibaki and petitioners claiming a share of his multibillion-shilling estate appear to have hit a snag despite the court yesterday granting parties more time to finalise discussions.
Justice Eric Ogola had given the parties up to December 18, 2023, to mediate on how they would want to settle the matter with the option of an out-of-court settlement high on the cards.
That leave was granted following a request by lawyers representing the Kibaki family. Lawyer Daniel Musyoka informed the court that the parties were engaged in talks and that they needed more time to agree on some issues.
However on Monday when the case was scheduled for mention to confirm progress made, Musyoka again asked for more time saying not much progress had been made.
"The parties are discussing how to proceed and they are yet to finalise those discussions. We are asking for more time to seek consensus," Musyoka told the court.
While lawyers representing the objectors did not oppose that request, they urged the court to direct hearings to resume if no concrete resolution would have been reached by the next mention date.
"We also have three pending applications including one on DNA testing dated October 14, 2022. We are asking for a date to highlight our submissions on those applications. We also need to take hearing dates if no progress shall have been made," lawyer Kerubo said.
Kerubo was holding brief for counsel Morara Omoke who is representing Jacob Ocholla, the first objector in the matter.
Kerubo's concerns echoed those made by Morara during the virtual October 30 session when he asked that a hearing date be set by December 18 should the talks yield no fruit.
"We just want to secure instructions on the proceedings because the court's calendar is getting very busy," Morara submitted.
Justice Ogola while giving the parties up to December 18 to mediate had said he would set a hearing date when parties return to court.
However, the judge yesterday granted the parties up to February 29, 2024 to conclude their discussions.
"I'll allow more time for you to agree on how you want to proceed with the matter. Mention on February 29, 2024," Ogola said.
In the matter, Jacob Ocholla who claims to be Kibaki's firstborn son and a woman codenamed JNL are seeking a share of his estate.
Ocholla's lawyer Morara Omoke did not object to the request but raised concerns that the court calendar was getting busy.
He asked that a mention date be set together with a hearing date in case the talks yield no fruit.
"We just want to secure instructions on the proceedings because the court calendar is getting very busy," Morara submitted during the virtual session on Monday.
The two are demanding that Kibaki's body be exhumed to allow for DNA tests insisting it is the only way to confirm he was their biological father.
Ocholla claims there are no existing male siblings who can assist in getting the right DNA to ascertain that he is Kibaki's son.
To buttress his argument, the 63-year-old man attached in his affidavits a report prepared by human pathologist Dr Zakayo Limili who stated that Ocholla’s and Kibaki’s phenotypic features suggested that the two are related.
The pathologist said Kibaki’s and Ocholla’s noses, foreheads, eyelids and lips resemble.
Kibaki had listed his four children Judy Wanjiku, Jimmy Kibaki, David Kagai and Anthony Githinji as heirs to his estate.
The children have since opposed attempts to exhume Kibaki's body saying subjecting the body to DNA testing will violate their privacy.
Judy who swore the affidavit on behalf of her siblings also said the order to exhume Kibaki's remains cannot be whimsically granted since he was buried following a state funeral and that the interment was a matter of national and international importance which was funded by public funds.