When Abdulkarim Popat, a successful and respected businessman died in 2013, he certainly did not know that his grudge with his second born son Alnashir would lead the family into battle, which would in turn etch legal principles on division of wealth.
In a move that will now guide cases involving parents who do not want to share wealth with some of their children, the Court of Appeal has ordered that Abdulkarim’s wealth be distributed afresh to ensure that Alnashir gets a share of his father’s billion-shilling estate.
Alnashir’s fight with his family has advanced age-old theories on why it is not easy being a middle child, as court records indicate that his father mistreated him for decades before eventually leaving the second of three children out of an empire worth billions.
While first born son Azim also expressed mistreatment by Abdulkarim, he was not left out of his father’s will.
In 2013, Alnashir opposed the High Court’s decision to exclude him from management of his father’s estate. His father had appointed sons Azim and Adil as executors of his will alongside lawyer Karim Anjarwalla.
When the High Court in 2019 dismissed Alnashir’s request for a share of the estate and an administration position in management of his father’s wealth, the second born Popat moved to the Court of Appeal.
By the time the Popat patriarch died on March 2, 2013, he had lived a full life and built one of the biggest and most respected business empires in East Africa.
Abdulkarim had through decades of sweat and tears made billions from car dealerships through Simba Corp, financial services through Imperial Bank, hospitality through establishments like Villa Rosa Kempinski and real estate both locally and abroad.
While court papers in Kenya indicate that Abdulkarim’s estate was worth at least Sh3.8 billion in 2013, the figure is modest because some assets like trusts he set up in the British Virgin Islands and shares in various companies around the world have not been assigned value.
The Court of Appeal judgment indicates that a comprehensive valuation of the estate has not been done, but that it is safe to assume that Abdulkarim’s empire is vast.
Vicious war among three brothers
The tycoon’s wealth is spread out in eight countries spanning four continents and several industries. But at home, where the heart purportedly is, not all had been well. Abdulkarim did not get along with his second born son, Alnashir. And his deep-rooted grudge with Alnashir would play out in the wealth distribution.
Alnashir, who had by 2013 assumed control of the family’s interests in Imperial Bank, had been left out of the will completely.
Abdulkarim’s decision would spark a vicious war among his three sons – Azim, Alnashir and Adil – that has resulted in multiple protracted court cases in and outside Kenya.
First born Adil runs the family’s real estate business in Canada and a hotel whose failure led to its conversion into a block of luxury apartments.
Adil controls the Simba Corporation arm of the Popat empire, which is also the heartbeat of the family’s businesses. It includes the Simba Corp car dealership, Villa Rosa Kempinski and the Acacia hotels.
Alnashir controlled the family’s interests in Imperial Bank, which collapsed in 2015 following a 13-year embezzlement scheme that saw depositors lose at least Sh40 billion.
The billionaire did not leave any notes, in the will or elsewhere, to justify why Alnashir had been left out.
The only thing for sure was that in 2008, Abdulkarim decided that even in death, he would never bury the hatchet with his second born son hence the move to lock him out of the wealth distribution.
Nothing would change his mind, not even an emotional letter from Alnashir written on February 13, 2009 – nearly one year after Abdulkarim wrote his will – to his father.
In the 2009 letter, Alnashir accused his father and mother, Gulzar, of denying him love and attention while showering last born Adil with the same.
To evidence the inequality, Alnashir detailed how he had to start working at the stores department of Simba Corporation and on a meagre salary, yet Adil “did not have to “start at the bottom and was given better terms”.
In 2007, Alnashir decided to leave Simba Corporation, and put his shares up for sale. Abdulkarim bought his son’s stake for Sh850 million.
Alnashir in the letter said that his father was quick to accept the Simba Corporation exit, and continued to insult his second born son long after the share sale.
The court papers now reveal that Azim also felt discriminated against, hence his decision to opt for the offshore businesses and get away from his father’s alleged cruelty.
Last Friday, the Court of Appeal in Mombasa ruled that Abdulkarim was wrong to exclude Alnashir in distribution of wealth.
Justices Wanjiru Karanja, Jamila Mohammed and Jessie Lesiit faulted their High Court counterpart Mugure Thande for upholding Abdulkarim’s decision to leave Alnashir out in the cold, yet the will did not give reasons for the drastic move. Justice Thande had ruled that in refusing to amend the will after receiving the emotional letter from Alnashir in 2009, Abdulkarim had shown that his mind was made up on disinheriting the second born.
“The learned judge admits that she was speculating about the reasons why the appellant was left out of the will. Judges do not surmise, they do not speculate. They are guided by the law and evidence before them. There were no reasons at all given in the will as to why the appellant (Alnashir) was left out in the will. It is not our place to speculate. Had the deceased found it necessary to give reasons, nothing stopped him from doing so. Let us not ascribe reasons for the appellant’s exclusion,” the Appellate Court said.
Seasoned family law expert Njoroge Regeru told the Court of Appeal that the letter was a cry for fatherly love and attention that Alnashir had been denied for several years, and should not be weaponised to disinherit his client.
The Court of Appeal judges agreed with Mr Regeru, holding that lack of reasons for not awarding Alnashir anything in the will was grounds to revisit Abdulkarim’s decision and ensure fairness and equity.
Adil had, in opposing Alnashir’s quest for a share of the estate, insisted that his brother is already wealthy hence there are no grounds to defy their father’s wishes and redistribute the vast estate. But the judges held that all three Popat sons are wealthy in their own right, with hundreds of millions in their bank accounts all stemming from the family’s businesses.
They added that evidence presented in court shows that the family patriarch could have been the source of the family problems, hence it is unfair to blame Alnashir for his troubled relationship with Abdulkarim.
“The appellant’s (Alnashir) conduct towards his father cannot be impugned. Even after feeling discriminated against by his own father, a feeling that he shared with the fourth respondent (Azim), the appellant continued to reach out to his father. On his part, the fourth respondent had migrated to Canada to get away from that unfavourable situation, which is blamed on the first respondent (Adil), but the appellant hang on in the hope that one day, the situation would change for the better,” the judges added.
Alnashir has accused Adil of keeping some of their father’s wealth to himself, for instance money held in trusts registered in Guernsey for the benefit of Abdulkarim’s family.
Abdulkarim was a self-taught accountant who relocated to Kenya with his father and nine siblings in the 1930s. He started out by buying and selling secondhand cars in Nakuru, a business that evolved into Deluxe Motors before finally becoming Simba Corporation in 1968.
Over the years, Simba Colt has had distribution deals with some of the biggest vehicle manufacturers in the world like Renault, Mitsubishi and BMW.
Simba Corp would also own the 20th Century Plaza, Xylon Motors (Mahindra), Simba Transport Solutions, Africa Fleet Management Solutions, Avis car rental and Olare Mara Kempinski and Nairobi’s Villa Rosa Kempinski.
In 1992, Abdulkarim opened a financial services and securities company which would evolve into Imperial Bank. The bank grew to become one of the region’s largest lenders.
Alnashir took over control of the Popat family’s interests in Imperial Bank in 2007, and oversaw its expansion into Uganda.
On October 15, 2015, Imperial Bank collapsed after a senior manager, Naeem Shah, allegedly revealed that former managing director Abdulmalek Janmohammed had stolen at least Sh38 billion from depositors.
The Central Bank of Kenya placed Imperial Bank under receivership and appointed the Kenya Deposit Insurance Corporation (KDIC) to manage the collapsed lender. At the time, thousands of depositors had saved more than Sh80 billion in their accounts.
Investigations by US-based FTI Consulting would reveal that more than Sh40 billion was siphoned from the bank.
