A protracted dispute over the estate of Naivas supermarket chain founder, Peter Mukuha Kago has taken a fresh twist after would-be heirs disagreed over the appointment of the Court of Appeal judges to handle the case.
Two of the late businessman’s children, David Kimani Mukuha and Newton Kagira Mukuha, are embroiled in a disagreement over the hearing of the estate distribution case by judges John Mativo, Mwaniki Gachoka and Weldon Korir.
Mr Kimani’s lawyers have since written to the president of the Court of Appeal, Daniel Musinga, expressing his reservations about the bench and wanting the judges to be excluded from the case.
The proposal has been opposed by Mr Kagira’s lawyers, who say there is no legal basis to interfere with the Judiciary’s administrative decision on the composition of the bench and that Mr Kagira’s apprehension lacks merit.
The exchange follows a ruling delivered by the three-judge bench last month in favour of Mr Kagira, allowing him to revive a 13-year-old dispute involving alleged interference of Naivas Limited shares.
“Mr Kimani is apprehensive that he will be prejudiced if the appeal is heard by the same bench, as the honourable judges may have already taken a view on the merits of the appeal that may impact on the ultimate judgment on the appeal,” Coulson Harney lawyers, for Mr Kimani, said in the letter.
“In this regard, we would be most grateful if you would please exclude the honourable judges from the bench that will be constituted to hear and determine the appeal,” they add.
In the ruling dated March 21, 2025, the court allowed Mr Kagira to revive his case against the administrators of his father’s estate -David Kimani and Grace Wambui.
Contested Will
The case concerns his allegation that their father had no written wishes (Will) on the distribution of the estate, an claim that was denied by his siblings and dismissed by the High Court in 2014, which found the Will was valid.
Kago died in May 2010, leaving behind vast wealth including land, money, and 10,000 shares in Naivas Limited. The supermarket chain business had grown to 110 outlets.
The succession case, filed in court in 2011, concerns an objection raised by Mr Kagira to the distribution of their father’s property before the ownership of Naivas Ltd was established.
His dispute was with his brother Simon Gashwe, the then administrator of their father’s estate, who died in August 2019. Gashwe was also the chairman of Naivas Limited.
Following Gashwe’s death, the case stalled in the Court of Appeal and a disagreement ensued on who should be the new administrator. They eventually settled on Mr Kimani and Ms Wambui.
They were appointed on March 11, 2024, to replace Gashwe, prompting Mr Kagira to resume his case for distribution of the shares.
Mr Kagira told the court that the delay in prosecuting the appeal was occasioned by disagreements among the beneficiaries of their father’s estate as to who was to be appointed to administer the estate in place of Gashwe.
The judges unanimously agreed and allowed the revival of the case, with Mr Kagira now battling with Mr Kimani and Ms Wambui for ownership of the shares.
His lawyer, Ahmednasir Abdullahi, senior counsel, in the correspondence to the president of the Court of Appeal is opposed to Mr Kimani’s bid on exclusion of the three judges. He describes Mr Kimani’s apprehension as speculative.
“We wish to respectfully register our protest at what is seemingly an attempt by Mr Kimani through his counsel to manipulate and/or direct the handling of the pending appeal. Whereas it is true that the named honourable judges of appeal dealt with Mr Kagira’s application and allowed the same, it is our firm position that the apprehension expressed by Mr Kimani is misplaced and devoid of any legal basis,” says Mr Abdullahi in the response dated April 22, 2025.
He adds that the contention that the judges may have taken a view on the merits of the pending appeal is speculative and misplaced.
This, he says, is because the application to reopen the case was an ordinary matter.
“The mere fact that the judges allowed the application cannot in any manner whatsoever serve as a justification for the kind of sentiments expressed by Mr Kimani. The communication is nothing but a disguised attempt to unlawfully interfere with the independence of your lordship’s office and the administrative processes of the court. Such attempts are untenable, and should not be countenanced,” the lawyer told Justice Musinga in the letter.
Shares distribution
Mr Kagira moved to the Court of Appeal in 2016 after the High Court dismissed his objections to the issuance of the letters of administration of his father’s estate to Gashwe. The court had also dismissed his challenge to the Will. The grant for estate administration was confirmed in terms of the Will.
In appointing Gashwe as the administrator, the High Court held that there was no evidence offered that he was unfit to hold the position.
In the pending appeal, Mr Kagira is challenging the decision of the High Court to dismiss his objection.
Gashwe’s testimony at the High Court was that their father held 10,000 shares at Naivas Limited and that he had bequeathed the said shares to four of his children. Gashwe said he had been given four percent, David Kimani (four percent), Grace Wambui (six percent) and Linet Wairimu (six percent).
