The succession battle over the estate of former president Mwai Kibaki has taken a new twist after two people claiming to be the children of the former head of state indicated that they will be challenging his will, which was written in 2016.
Appearing before Justice Edric Ogola on Thursday, Jacob Ochola Mwai and a woman identified as JNL said they will be objecting to the will, which was written by Kibaki on December 23, 2016 alleging that there are forgeries in the document.
Justice Ogola directed the objectors –Mr Ochola and JNL–to file the application contesting the Will within 14 days and other parties to respond, ahead of the hearing on June 26, 2025.
On Thursday, the parties were ready to argue the application for exhumation of the remains of the former president when the twist emerged.
Mr Ochola sought for the exhumation of the remains of the former head of state, for a DNA to be conducted to confirm whether he is a son to Kibaki.
The late president appointed his children Judith, Jimmy Kibaki, David Kagai and Anthony Githinji as executors of the will.
Mr Ochola and a woman identified as JNL filed objections, separately and have sought to be recognised as beneficiaries of the estate.
In his application through lawyer Morara Omoke, Mr Ochola wants Judith and his siblings as well as himself and JNL subjected to a DNA paternity test, to establish whether they are the children of the Late Kibaki.
“It is germane that the DNA paternity test be ordered in order to prevent the oppression of the 2nd Objector (Ochola) by leaving him out of the estate of the deceased yet he is a son of the deceased and hence a beneficiary in the estate,” he said in the application.
Lawyer Ashford Mugwuku told the court that the contestation of the Will was ‘throwing the spanner in the works’ and reversing the gains already made.
In a six page will that was signed in 2016, Mr Kibaki shared his wealth—which was not disclosed—equally among his four children–Judy, Jimmy, David and Anthony
Kibaki, who died in April 2021 aged 90, directed that his estate and cash be shared along his bloodline, keeping his children-in-law out of the matrix.
The application for exhumation has been opposed by Judith and other executors of the will arguing that it has not satisfied the legal threshold for grant of the orders sought.
They further said not only does the prayer for exhumation demonstrate the disrespect of Mr Ochola for Kibaki’s final wishes.
They have also wondered why Mr Ochola waited for 60 years until after the death of the late President to be recognised as his child.
The family said that the alleged similarities between Mr Ochola and the late President are not sufficient to grant the drastic orders sought for the disinterment of the body.
“This Court cannot be used as a tool for a fishing expedition. A trial Judge must not be seen to descend into the arena of conflict in a trial, to generate evidence not canvassed or adduced by witnesses to decide a case,” the family said.
“I direct all the parties opposed to the case filed by Ochola and JNL file responses on or before June 26,2025,” directed Justice Ogola.
Mr Ochola filed the application in September 2022 objecting to the sharing of the multi-million estate claiming he has not been recognised as Kibaki’s first born son.
“The basis of his Objection is that he is the firstborn child of the deceased therefore a beneficiary in the estate of the deceased. The Petitioners are disputing this fact and are actively trying to deny him of his inheritance,” Mr Ochola said in his submissions.
The objector says that DNA tests are the best and most conclusive way of determining paternity and that it was not the first time in the country that exhumation of remains of a deceased person has been done.
“It does not please the 2nd Objector’s to insist on exhumation of his late father’s body but it is necessary in this case since there is no known living male relatives of the deceased from whom a sample for DNA paternity may be retrieved,” he said, adding that the petitioners are unwilling to submit to a sibling DNA test.
He also stated that a sibling DNA test may be conducted and it turns out there is more than one set of siblings in the samples gathered from the petitioners and objectors.
“No expert witness has adduced evidence to show that there is a resemblance between the 2nd Objector (Mr Ochola) and the Deceased that may infer a relationship between them,” the petitioners stated.
Judith and her siblings said it should not be lost on the court that Mr Kibaki was a retired Head of State who was accorded a State Funeral.
“We submit that the nature of State Funeral as averred in the Replying Affidavit necessitates that the final laying to rest of the Deceased as a retired Head of State, which is a publicly funded ceremony, be addressed and preserved as a matter of national and international importance,” they said in court documents.
The family added that the costs for exhuming and reburying the remains as well as the psychological trauma that will be meted on the family and the Kenyan public is too high a cost to bear to satisfy Mr Ochola’s outrageous and groundless allegations.
