The Court of Appeal has set aside a decision that ordered a forensic audit to be conducted on the estate of the late politician-cum-businessman Nginyo Kariuki, which is approximately valued at Sh4 billion.
Court of Appeal Judges Daniel Musinga, Asike-Makhandia and Abida Ali-Aroni said the order issued by High Court Judge Stella Mutuku in July 2021 was premature and not based on any proven facts.
Mutuku had on the said date ordered Nginyo’s widow, Margaret Nginyo, his eldest daughter, Jane Alice Kiragu and Silas Kariuki-son, who are also executors of the deceased will, to account for all funds they had collected or received from the deceased’s estate since his demise and how they were utilised or preserved.
She also ordered that a forensic audit of the deceased’s estate since his demise be conducted by an audit firm to be agreed upon by all the beneficiaries, failure to which the court would appoint one.
She issued the orders after one Brenda Nyambura Kiragu, also a child of the late Nginyo, claimed that the three interfered with the estate of the deceased.
Aggrieved, the executors appealed. They faulted Mutuku for finding there was intermeddling in the deceased's estate without stating the specific acts that constituted the alleged claim. They also said it was not right for the judge to rule that they had intermeddled in the estate, more so because no forensic audit had been conducted to prove the same.
The appellate judges, in setting aside the ruling and orders of Mutuku, said the executors did not need the authority of the court to deal with the deceased’s estate since their authority is derived from the will itself. The will, which is dated June 13, 2014, and still contested, recognises the three as executors.
The judges ruled that Mutuku made a mistake in finding that the executors had interfered in the deceased's estate, as what they did was done in good faith.
They took into consideration Jane’s account, who explained to the court that the monies Brenda had accused them of withdrawing from the deceased bank account were only meant for the continuation of a Kiambu project that had been initiated by the deceased during his lifetime.
‘Having made a finding that the executors acted within their authority and that their acts could not have amounted to intermeddling, it follows therefore that the restraining order and order directing forensic auditing of the deceased estate were in their nature premature and were not based on any proven facts,’ they said.
Nginyo died on February 24, 2020, while receiving medical treatment at the Aga Khan Hospital. He left a will dated June 13, 2014, whose validity has been challenged.
In the said Will, the deceased appointed Margaret Wangari Nginyo Kariuki (his widow), Jane Alice Wambui Kiragu (his eldest daughter), James Anthony Kariuki (his eldest son), Scholastica Njeri Kariuki (his daughter), and Silas Macharia Kariuki (his son) as his executors and trustees.
But Brenda has challenged the validity of the will, saying it couldn’t have been signed by her father as the will only listed the children of Margaret to the exclusion of all other children of the deceased.
