The family of former President Mwai Kibaki and a man claiming to be his son are embroiled in a fresh legal battle concerning the veracity of his Will, which details his last wishes on distribution of his wealth to his generation.
The man, Jacob Ocholla Mwai, has filed papers at the High Court Nairobi claiming the signature on the Will dated December 23, 2016, is not Kibaki’s and that the same is a forgery.
He has also picked issue with Kibaki’s language in the Will as the late President used the words “remoter issue of mine” in his instructions to the executors on management of the assets through a Holding Company.
Mr Ocholla says the words “remoter issue of mine” suggest there were other beneficiaries apart from the four children named in the Will and that those beneficiaries could be him and Ms JNL, a woman who claims to be Kibaki’s daughter.
“The last Will of Mwai Kibaki dated December 23, 2016, is invalid by reason of his signature at the attestation page being a forgery,” says Mr Mwai’s lawyer Omoke Morara in the court filings.
The lawyer says according to a Forensic Document Examination Report of an examiner the objectors engaged, there are disparities and inconsistencies of the signature in the Will document and other known signatures of the late President.
The report is dated December 16, 2024.
Mr Ochola together with Ms JNL sued Kibaki’s four children—Judy Kibaki, David Kagai, Jimmy Kibaki and Anthony Githinji—in 2022 objecting to the distribution of the estate and seeking a share of the wealth.
The four are the executors of the Will.
Body exhumation
Initially, Mr Ocholla and Ms JNL wanted the court to order the exhumation of Kibaki’s body for sibling DNA tests to settle the dispute concerning their biological relationship with the late President, but the family opposed citing violation of their privacy.
“The advocates instructed by both Mr Ocholla and Ms JNL (Objectors) have managed to obtain documents which contain undisputed known signatures of His Excellency the Hon. Mwai Kibaki, CGH (Deceased). They include his signature on The Kenya National Dialogue and Reconciliation – Agreement for the Implementation of the Recommendation of the Commission of Inquiry into Post-Election Violence dated December 16, 2008,” says the lawyer.
They also got Kibaki’s signatures appended on a Witness Statement in a Civil Suit that was at the High Court in Nyeri in September 2013 and on the Conferment of the rank of Senior Counsel Advocates on December 11, 2012.
Former President Mwai Kibaki.
In addition, they obtained Kibaki’s signature contained on a Transfer of Lease document dated March 11, 1977.
Forensic examiner
On December 11, 2024, Mr Ocholla and Ms JNL engaged services of a document forensic examiner, Mr Martin E. Papa, to examine and analyse the said signatures compared to the one in the Will document.
The expert’s report revealed a series of inconsistencies and discrepancies raising doubt as to the authenticity of the Will.
“On the question of the validity of the signature of Kibaki in the Will, the Document Examiner concluded that the purported signature is a forgery.
"Based on the documents analysed, compared, and evaluated, the disputed signature is a “spurious signature”. It does not display individualising handwriting characteristics and habits that are similar in nature and consistent with the known signatures on exhibits,” says lawyer Omoke.
Pages missing signatures
In a further attack on the Will, the lawyer says that the Will document not having been signed by President Kibaki or the attesting witnesses on every page is invalid, and therefore violates the mandatory requirement of Section 11 of the Law of Succession Act.
Regarding the language of the Will, the lawyer states that in one clause Kibaki referred to the four children but in another he stated that “…the minority of any child or remoter issue of mine”.
“Kibaki indicated that he defined his children, but at no point in the purported Will does he use the word “only children” and he has not defined “my children” as his only children. The language used is not exclusionary. All indications are that Kibaki defined “his children” in a permissive manner that included “all remoter issues of his” which by necessary implication, includes Mr Ocholla and Ms JNL,” argues the lawyer.
Mr Ocholla is aged 63 years while Ms JNL is 62.
'Null and void'
They want the court to declare the Will null and void and order that the estate be administered in accordance with the rules governing intestate succession, which is when someone dies without written wishes on distribution of his/her estate.
Mr Ocholla also wants the court to bar the law firm of Coulson Harney LLP from representing Kibaki’s four children in the court case, since it is the one that drew the Will.
“The Will is indicated to have been drawn by Coulson Harney LLP. As such, any representation of the Petitioners or any other party in these proceedings by any member of the said firm presents a manifest and glaring conflict of interest,” says lawyer Omoke.
“Anne Njeri Maina and Angela Wanjira Mbuthia are the attesting witnesses to the signing of the Will. The said advocates, together with any other advocates employed by or practicing in the name and style of Coulson Harney LLP, are therefore witnesses in the matter and ought to be disqualified from representing the Petitioners or any other party in this matter.”
The value of Kibaki’s wealth remains a mystery since in the Will document he did not name specific properties up for inheritance.
Mr Kibaki died at the age of 90 on April 22, 2022, and his body was interred at his home in Othaya Nyeri County.
Both Ms JNL and Mr Ocholla claimed that their mothers met Kibaki in the 1950s in Uganda and United Kingdom.
Ms JNL said her mother and Kibaki met while they were both students in the United Kingdom in the late 1950s.
In her court papers, she states that her mother was studying hygiene and tropical medicine while Kibaki was a student of economics and political science.
Mr Ocholla said that Kibaki met his mother at Makerere University Uganda.
The case is scheduled to be called in court on June 26, 2025.
