A bid by the firstborn son of the late former Cabinet Minister Mbiyu Koinange to be awarded more assets than other beneficiaries has flopped, setting the stage for distribution of the multi-billion shillings estate.
David Njune Koinange had filed an application seeking to suspend a decision issued by the courts in 2020 that brought an end to a four-decade succession feud involving the wives and children of the late Minister.
Njune was aggrieved with how the estate was distributed in the judgment delivered in May 2020.
He expressed himself by saying that since he was the firstborn son of the deceased, he should have been bequeathed more assets.
He asked the court to suspend the judgement delivered by Justice Aggrey Muchelule on the sole basis that the court should have awarded him more than the rest of the 12 beneficiaries since he was the deceased’s, firstborn son.
But Justice Eric Ogola dismissed his plea saying Justice Muchelule distributed the estate based on article 27 of the constitution of Kenya which provides that every person is equal before the law.
“It is quite unfortunate that Njune sees himself as better than the other beneficiaries and out of spite, he is delaying the distribution of the estate by refusing to execute the necessary documentation,” he said.
In distributing the estate, Justice Muchelule had addressed the issue being raised by Njune saying the children of the deceased have equal worth, irrespective of their sex or marital status.
The Judge said this was important because the various proposals by the male children appeared to indicate that they were entitled to more benefit from the estate when compared to their sisters.
Judge Ogola in affirming Muchelule’s decision said he was not satisfied with the reasons provided by Njune to suspend the judgment.
"This succession dispute has been one of the longest-running in the judiciary, and a reference point whenever a delay in the administration of Justice is discussed. What is not appreciated is that most of the cases involving rich polygamous Kenyans who die without a will have followed a similar pattern. Lengthy and complicated litigation attracting many advocates and less intention on the part of the parties to bring the matter to an end," the Judge said.
"The court has finally distributed the estate after numerous back and forth from the beneficiaries. Hence there is no satisfying reason to suspend the execution of the judgment," he added.
The deceased Peter Mbiyu Koinange died without a will on September 3, 1981.
During his life, he had four wives: Loise Njeri Mbiyu, Ruth Damaris Wambui Mbiyu, Margaret Njeri Mbiyu, and Eddah Wanjiru Mbiyu, in that order.
Loice and Ruth died in 1966 and 2010, respectively. Each of the two left children.
The deceased left substantial property. After nearly 40 years of continued dispute, the estate of the deceased was distributed in a judgment delivered on May 7, 2020.
The administrators of the estate of the deceased are David Njunu Koinange (representing the 1st house), Margaret Njeri Mbiyu (representing the 3rd house), Eddah Wanjiru Mbiyu (representing the 4th house) and David Waiganjo Koinange (representing the 2nd house).
They have the responsibility to distribute the estate of the deceased to the indicated beneficiaries.
But Waiganjo died on September 10, 2020, before the estate was distributed. He was replaced by Lenah Wanjiku Koinange as the administrator representing the second house.
The administrators told the court that Njune has persistently refused to cooperate with the affairs of the estate which made it impossible to proceed with the distribution.
He had claimed that if the estate was distributed as per the judgment of the court, he would suffer harm as a first-class beneficiary and administrator of the estate.
The Judge in finding that Njune has gone against the responsibilities placed on him as an administrator of the estate said, “I am satisfied in the circumstances that this is a proper case in which the court should exercise its discretion and nominate the deputy registrar of this court to execute the instrument necessary to complete the distribution of the estate,”
The application to have the court suspend the Muchelule judgment was also made by Nancy Wairimu Waiganjo, wife to David Waiganjo (son of the second house) and two others but was declined.
Judge Ogola further directed the administrators of the estate to file in court the survey report for Closeburn plots.
Thereafter, beneficiaries will be at liberty to challenge the subdivision of the plot. The plot is part of the assets left behind by the late Minister. It is adjacent to the Two Rivers Mall.
Justice Muchelule had in his decision said that sharing of close burn estate shall ensure that each of the 12 beneficiaries gets at least 1 acre touching the Limuru highway or tarmac road.
The administrators were required to appoint a surveyor to measure the acreage of the plot and further subdivide the plot as per the schedule of distribution in the confirmed grant.
But Judge Ogola noted that no surveyor's report has been filed in court.
It was also discovered that there are funds held by the unclaimed financial asset authority.
The judge in his final orders said the funds belonging to the deceased, if any, held by the authority to be used to cover the liabilities of the estate.