Naivas row: Siblings in court over control, ownership of supermarket chain
A Naivas supermarket outlet in Ongata Rongai.
The family of the late Peter Mukuha Kago - the founder of Naivas - the country's leading supermarket chain - has been rocked by fresh wrangles over control and ownership of the retail giant and their father's empire.
At the centre of the new row is an application by three of the late Kago's children, who have separately gone to court to replace their brother as administrator of their father's estate.
Newton Kagira Mukuha, his sister Grace Wambui and brother David Kimani Mukuha have filed applications in the Nakuru High Court seeking to be appointed administrators of the multi-billion-shilling estate in place of their brother Simon Gashwe, who died in August 2019.
Gashwe, the former chairman of Naivas Supermarkets, died in August 2019 while undergoing treatment at the Aga Khan Hospital in Nairobi.
Naivas supermarkets chairman Simon Gashwe Mukuha who died in 2019.
The late Gashwe, who records show owned 25 per cent of Naivas shares, was the administrator of his father's entire estate. He was appointed sole administrator of the empire on May 6, 2010.
In his court petition, Mr Kagira claims he is worried that the estate will go to waste due to lack of representation, adding that it is likely to be looted by strangers.
According to him, Gashwe's death is sufficient grounds to revoke the letters of administration and appoint a new one.
He claims that the distribution of their father's estate had not been finalised by the time Gashwe died in 2019. He claims that some assets have not been distributed.
He notes that the pending appeals cannot proceed without the representation of the late Gashwe.
"It is in the interest of the deceased's estate and justice that a substitution be made so that the interests of the estate are properly protected," Kagira says.
David Kimani, on the other hand, claims that his siblings namely Teresia Njeri, Charles Mukuha Gashwe, Grace Muthoni Mukuha, Ruth Wanjiru Mukuha, Hannah Njeri Mukuha and Linet Wairimu Mukuha consented to his appointment as administrator.
He argued that none of Mr Gashwe's heirs had consented to the appointment of the applicants, namely Mr Kagira and Mr Wambui, as administrators.
Mr Kimani opposed Mr Kagira's application after accusing him of filing cases against the estate, thereby creating a conflict of interest by being both a litigant and also seeking to be appointed administrator at the same time.
According to him, the late Gashwe had distributed the estate to all the beneficiaries before his death, thus completing the process.
"In the event that the court finds that the administration of the estate of Peter Mukuha Kago is necessary, the court will be pleased to issue letters of administration to David Kimani Mukuha as agreed by the other beneficiaries," Mr Kiman stated in his application.
On her part, Ms Wambui says in her application that Gashwe was appointed as the administrator with the consent of the family members to manage the estate and distribute it among the family members and pay debts.
She says her brother Gashwe died before the administration was completed, adding that her father's estate has several cases pending in court.
Ms Wambui claims that some of her late father's property have been wrongly distributed and that there is need for an administrator or administrators to resolve the dispute. She is willing to be appointed as a joint administrator with Kagira.
"We therefore humbly request the court to grant the applications and revoke the grant of May 6, 2010, and further pray that the grant be reissued to Grace Wambui Mukuha to serve as the new administrator of the estate," they said.
At the Milimani Law Courts in Nairobi, Newton Kagira Mukuha, the eldest of the three Naivas brothers who have been locked in the battle for control of Naivas Supermarkets since 2013, has renewed his fight for the retail chain.
Mr Kagira and his younger brothers have been fighting for control of the multi-billion-shilling business since 2013.
Mr Kagira accuses his brothers, the late Simon Gashwe and another Mr David Kimani, of fraudulently colluding to exclude him as one of the registered owners of Naivas, thereby disinheriting him from both his and his father's shares.
In March 2023, Newton Kagira Mukuha hired top law firm Ahmednasir Abdullahi Advocates LLP to represent him in the latest legal battle for a stake in the giant retail chain.
Lawyers at Ahmednasir Abdullahi Advocates LL, entered the case with a letter to the Registrar of Companies, seeking the current shareholding structure of Naivas Limited.
The law firm also asked for any changes to the company following the recent acquisition of shares by private equity firms, as well as copies of all returns filed by the retailer since its inception.
Last year, Naivas Limited denounced Kagira, saying he was a stranger claiming shares in the giant retailer.
In its defence at the Milimani High Court in Nairobi, Naivas described Kagira as a stranger to the company with no legal claim to it.
"There is no substantive reason or evidence for the applicant (Kagira) to seek an injunction to protect the company from losing its assets or shares. The court cannot establish any registered legal interest that Kagira has in the company. Mr Kagira has never been a legal or beneficial owner of the company's shares and cannot prevent the company from selling its shares or assets," Naivas said through its lawyers Coulson Harney.
According to Naivas, the High Court dismissed Kagira's case in 2016, in which he claimed a 20 per cent shareholding in Naivas Limited.
Naivas says an appeal by Mr Kagira is pending at the Court of Appeal, but he has unlawfully returned to the High Court in Milimani, Nairobi, to stop the company's operations.
He went to court on April 3, 2023, to stop the company from selling its shares and assets.
Kagira claimed that he was the owner of Naivas Limited, having contributed 20 per cent of the company's start-up capital when it was established in 1990.
Earlier, in August 2021, Mr Kagira approached the Nakuru Court of Appeal under a certificate of urgency after his previous applications to claim ownership of the company were dismissed by the High Court.
The directors of Naivas Supermarket are listed as Mr David Kimani, who owns 25 per cent, the late Simon Gashwe (25 per cent), Ms Linet Wairimu (15 per cent), Ms Grace Wambui (15 per cent) and the late Peter Mukuha Kago with 20 per cent.
According to Kagira, on November 25, 2021, the Court of Appeal in Nakuru issued an order directing that the status quo of the disputed shares be maintained pending the determination of the appeal.
However, he told the court that he had received credible information that the company, through its directors and shareholders, was in the process of selling its shares, including the disputed ones.
He added that he would potentially lose his initial investment and subsequent dividends from the disputed shares.
Kagira is seeking the revocation of the letters of administration issued to Gashwe.
He says Gashwe died before the completion of the distribution of shares in Standard Chartered Bank, cash in Barclays Bank (now ABSA Bank), cash in Kenya Commercial Bank and a 20 per cent shareholding in Naivas Limited, all of which were assets of her late father's estate.
Kagira argues that Gashwe's death is sufficient grounds to revoke the grant of letters of administration.
The issuance of a new grant, he said, will facilitate the completion of the process of distributing shares in the estate to the respective beneficiaries.
In court papers, Kagira had claimed that her father Kago called a family meeting in December 1989, which he allegedly attended alongside Kago, Kimani, Grace Wambui, Linet Wairimu, Robert Njau and Simon Gashwe (Mukuha's late father), where the family allegedly discussed and agreed to start a business.
"Kimani contributed Sh10,000, Kago Sh30,000, Wambui Sh25,000, Kagira Sh20,000 and Wairimu Sh15,000, totalling Sh100,000," Kagira's court papers read.
He added that the family agreed that each individual's contribution would form the basis of their shareholding in the company.
Newton Kagira argues that he was part of the said meeting, allegedly called by the supermarket's founder Peter Kago at his home in Cherangany, Kitale, where contributions were made to set up the company.
However, he stated that family members sidelined him and denounced him as a shareholder, even though he had contributed 20 per cent of the shares.
Peter Kago Mukuha died on May 6, 2010, leaving behind property worth billions of shillings, including the Naivas Supermarkets chain.
Following an application for letters of administration, Simon Gashwe Mukuha was appointed administrator on October 6, 2016. However, he was sued by his brother Kagira, who accused him of sidelining him in the distribution of the estate.
He however died on August 26, 2019, before the cases were concluded.
