For 24 years, Charles Wanjohi Wathuku, 53, has lived as the son of late Nyeri tycoon Wathuku Ngure, despite doubts by relatives of the dead man.
The heir of the multi-million-shilling estate has been enjoying a serene life since 1996, courtesy of the estate, which comprises vast coffee farms in King’ong’o, Nyeri, vehicles and money in several bank accounts.
But the cushy life offered by the estate is set to end after the Court of Appeal overturned the finding of a lower court that Mr Wanjohi is the biological son of the tycoon.
Appellate judges also set aside the grant of letters of administration of the estate issued to Mr Wanjohi in 1997 and the lower court proceedings leading to its confirmation.
The judges found that the grant of letters that Mr Wanjohi used to inherit the estate are defective for being issued irregularly by the trial court.
In addition, the court found that the grant of letters was obtained on the strength of forged documents.
Ngure died childless and without a wife on September 6, 1996, without a will. He had had two wives, both who died without bearing children.
Immediately after his death, a burial dispute arose, with Mr Wanjohi claiming he was the tycoon’s son, and was, therefore, entitled to bury him.
The burial dispute ended up in court, where magistrate Aggrey Muchelule (now recommended to be a judge of the Court of Appeal) dismissed the claim and ordered the body buried by Ngure’s brother, cousin and other relatives.
Lengthy court battle
After the burial, Mr Wanjohi filed a succession case, petitioning for letters of administration for the estate, saying he was Ngure’s son.
He was issued with the grant letters on July 4, 1997, although Ngure’s relatives objected. They did not recognise Mr Wanjohi as Ngure’s son. Ngure’s brother, Mr Ngure Githinji, and his cousin and business partner Charles Mwangi Gitundu, also sought the revocation of the grant.
Mr Wanjohi was deemed by the trial court to be Ngure’s sole heir. This was the beginning of a lengthy court battle with a chequered history since its debut in court in 1997, culminating in various criminal charges being levelled against Mr Wanjohi and his recent loss of control of the estate.
The charges related to forgery of personal registration documents and letters of administration, with the intention of inheriting the multi-million-shilling estate.
While ruling on the case last week, the Court of Appeal found that the documents that were used to obtain the grants in favour of Mr Wanjohi were also inconclusive, as no death certificate was attached.
The death certificate is mandatory as provided in Rule 7(2) of the Probate and Administration Rules.
In addition, no application for confirmation of the grant was made as required by the rules.
“The trial court on its own volition during the objection proceedings, proceeded to declare Wanjohi son of Ngure and went further to confirm the grant. This in our view was highly unprocedural and irregular,” said the judges.
They held that the grant of letters of administration dated July 4, 1997 was still surrounded by questions of validity, which requires to be satisfactorily determined by the lower court.
The grant was obtained fraudulently through forgery of the probate forms as evidenced in a criminal case opened in 1999, in which Mr Wanjohi was convicted and sentenced to 10 months in prison for making false documents.
Criminal culpability
The three-judge bench led by Justice Mohammed Warsame found that although Mr Wanjohi was later acquitted on appeal, it does not change the fact that the documents are questionable. The other judges on the case were Gatembu Kairu and Agnes Murgor.
Mr Wanjohi was acquitted on the grounds that there was no proof that he actually made the documents.
The documents were made by clerks of a lawyer and they were not charged with any criminal offence in court, leaving the question that remained unanswered as to who bore criminal culpability.
The court found further it is not in dispute that Wanjohi’s mother and Ngure enjoyed a close relationship.
“The question is whether there was an issue (child) from that relationship and whether that issue is the respondent (Wanjohi),” stated the judges, noting that there were a number of questions that the trial court failed to pay due regard to.
Mr Wanjohi gave evidence to demonstrate that he was Ngure’s son. Specifically, Lydia Wanjira, his mother, testified that she and Ngure were involved in a relationship sometime in the year 1967/68, which resulted in the birth of Wanjohi in 1968.
She explained that the birth was registered in 1970, when she came to know Mr Josiah Chomba, one of the workers at Ngure’s farm. Chomba was the registered father of Mr Wanjohi as per the birth certificate.
She further alleged that Ngure was aware of this fact and kept asking her about him (Wanjohi) and would occasionally send her money for his care.
Wanjohi, for his part, described Chomba as his step-father, saying that after he died, Ngure asked him to go back to Nyeri with him.
Biological son
He testified that he lived with Ngure at Nyaribo Farm and that Ngure would introduce him to everyone as his son. In 1992, he dropped the name Chomba and adopted the name Wanjohi, in accordance to Ngure’s wishes.
To resolve the questions of paternity, the lower court had ordered a DNA test to be conducted, but this never happened.
According to the Court of Appeal, it was incumbent upon Mr Wanjohi to ensure that the test was conducted, seeing that it took six months for Ngure to be buried.
“He had ample time to get the necessary samples from Ngure as there was a court order,” said the judges.
The judges said the trial court failed to fully consider the evidence adduced in arriving at the conclusion that Wanjohi was the biological son and heir of Ngure.
“As it stands, the only evidence adduced is the fact that Ngure paid school fees for Wanjohi at Kimathi Institute of Technology, which in our view, creates doubt, as he indicated that Ngure was paying his fees as his sponsor, not father,” said the judges.
On the basis of the evidence on record, the judges said the High Court arrived at the wrong conclusion that Wanjohi was the biological child of Ngure without addressing its mind to the correct questions, and thereby arriving at the wrong conclusions.
They said in view of the evidence tendered raising more questions than answers, the matter requires further interrogation because although Wanjohi was not a biological child, it does not mean he was not a son of Ngure. He could be considered a dependant of the estate. It is, however, for him to proffer evidence of such dependency relationship and for the court to determine the nature of the relationship between him and Ngure.
The judges directed that the matter be remitted to the High Court for expedited determination as to the grant of letters of administration, as well as the confirmation of the same in accordance with the provisions of the Law of Succession Act.
