Kibaki’s children, led by Judith Wanjiku Kibaki, want court to strike out an application filed by the man, Jacob Ocholla, seeking nullification of the Will on allegations that it was a forgery.
The final Will, dated December 23, 2016, details Kibaki’s last wishes on distribution of his wealth to his generation.
In her court filings, Ms Kibaki says Mr Ocholla is relying on hearsay and inadmissible evidence in his allegations of fraud and forgery against the Will.
Ms Kibaki says Mr Ocholla’s application for cancellation of the Will also lacks any basis since it is not supported by an affidavit of an expert in forensic examination.
She says Mr Ocholla is relying wholly on the affidavit of a woman identified as Ms JNL, who is also claiming to be Kibaki’s daughter. Ms JNL is neither an expert in document examination nor is she a lawyer with expertise in drafting legal documents.
“The application is based upon alleged forensic evidence when in fact the deponent of the affidavit purporting to produce that evidence is not an expert, nor has she claimed to be an expert, or to be possessed of any expertise in the matters upon which she purports to give evidence,” says Ms Kibaki.
Describing the application as bad in law, Ms Kibaki adds that the queries on legitimacy of the Will are based on opinion.
Kibaki's signature 'inconsistencies'
Among the issues raised by Mr Ocholla in questioning legitimacy of the Will is alleged disparities and inconsistencies of Kibaki’s signature on the contested Will document compared to his other known signatures on public documents.
Mr Jacob Ocholla who claims to be former President Mwai Kibaki’s biological son. He has claimed that his life is in danger after unknown men trailed him and made an attempt on his life while driving in Nairobi.
Photo credit: Pool I Nation Media Group
The application for cancellation of the Will is dated February 13, 2025, and is seeking orders that KIbaki’s estate should be administered and distributed in accordance with the rules governing intestate succession, which is when someone dies without written wishes on distribution of his/her wealth.
Mr Ocholla’s forensic report also identified an unexplained space between two paragraphs in the Will. The examiner concluded that “such large unexplained spaces do not ordinarily exist in any Will or deed prepared by a competent lawyer, as it would permit the insertion of additional unauthorized content, not contained in the original Will”.
In response, Ms Kibaki says the report is an opinion and hearsay evidence that is inadmissible in court.
“The Application is based on evidence of the deponent's opinion on such questions as whether “such large unexplained spaces do not ordinarily exist in any will or deed prepared by a competent lawyer”. The opinion is also on issues such as "on matters of law, interpretation and construction of the will” when in fact the deponent is not an expert in law, nor does she purport to be an expert in law or in drafting of legal documents,” says.
Regarding Mr Ocholla’s bid to produce the expert report of "Spectral Forensic Services-Forensic Document Examination Report", Ms Kibaki says the witness is not the maker of that report.
“In so far as Ms JNL relies on the contents of the report referred to, it is hearsay evidence and inadmissible. In so far as the Affidavit consists of opinion, it is inadmissible as the deponent is not an expert and her opinion is not the opinion of an expert,” she states.
It is her case that since the application makes allegations of forgery and fraud, “it is based on nothing except inadmissible hearsay evidence”. She adds that Ms JNL’s affidavit in support of Mr Ocholla’s application also contravenes the Evidence Act.
“The application was filed outside the timeframe granted by the court. Further, no leave has been sought to file and serve it out of time. In the premises, the application ought to be struck out,” adds Ms Kibaki.
She explains that though the court had on November 14, 2024, directed Mr Ocholla to file the application within 14 days, the latest date being November 28, he filed the same on February 13.
Mr Ochola, together with Ms JNL, sued Kibaki’s four children - Judith Kibaki, David Kagai, Jimmy Kibaki and Anthony Githinji –in 2022, objecting to the distribution of the estate and seeking a share of the wealth. The four are the executors of the Will.
Initially, Mr Ocholla and Ms JNL wanted the court to order the exhumation of Kibaki’s body for sibling DNA tests to settle the dispute concerning biological relationship with the late President, but the family opposed, citing violation of their privacy.
“On the question of the validity of the signature of Kibaki in the Will, the Document Examiner concluded that the purported signature is a forgery. Based on the documents analyzed, compared, and evaluated, the contested signature is a “spurious signature. It does not display individualizing handwriting characteristics and habits that are similar in nature and consistent with the known signatures on exhibits,” says Mr Ocholla’s lawyer Omoke Morara.
In a further attack on the Will, the lawyer says that the Will document not having been signed by Kibaki or the attesting witnesses on every page is invalid, and therefore violates the mandatory requirement of Section 11 of the Law of Succession Act.
The value of Kibaki’s wealth remains a mystery since, in the Will document, he did not name specific properties up for inheritance. Kibaki died at the age of 90 on April 22, 2022, and his body was interred at his home in Othaya, Nyeri County.
Both Ms JNL and Mr Ocholla claimed that their mothers met Kibaki in the 1950s in Uganda and the United Kingdom. Ms JNL said her mother and Kibaki met while they were both students in the United Kingdom in the late 1950s.
In her court papers, she states that her mother was studying hygiene and tropical medicine while Kibaki was a student of economics and political science. Mr Ocholla said that Kibaki met his mother at Makerere University in Uganda.
The succession case is scheduled for hearing on June 26, 2026, at the High Court in Milimani, Nairobi.
