• Presumed innocent until guilty but law says no one shall benefit from their wrongdoing
• Accused of killing, with another, the father of her own children
Image: FILE
One of life's paradoxes is the immense potential of human beings to do good and the capacity to do evil. Life casts the mould of conduct which will someday be adjudged decent or wicked. At times fate and coincidence conspire to produce unlikely facts and events.
These were words of Appeal judges as they dismissed the case by a woman seeking to manage the vast estate of the husband she is accused of killing.
Appeal judges Erastus Githinji, Fatuma Sichale and Prof Otieno Odek said that though they agreed with the woman that she is presumed innocent until proven guilty, they are aware the law states that no one shall benefit from their own wrongdoing.
“Under succession and inheritance law, a murderer cannot inherit from the deceased whom he/she has killed. This is what is known as the 'slayer or forfeiture rule'."
Dismissing her notice of appeal, the three judges held that the woman failed to satisfactorily demonstrate that her appeal will be rendered null if orders sought are not granted.
The woman referred to by initials ASY for legal reasons has lost the battle to her father-in-law DBJ.
ASY was married to J.P. She is however accused of killing the father of her two children. In the charge sheet, it is alleged that on the night of July 26, 2015, the woman with another person, murdered her husband.
Prior to his death, the man prepared a will in which he appointed his wife and father as administrators.
Three years after the death of his son, DBJ moved to court seeking to stop issuance of letters of administration or distribution of the estate, pending determination of the murder case.
Also sought is an order that the estate will have only two children as beneficiaries.
He wanted an order for removal of a third child as beneficiary of the estate because she is not the biological daughter of the two.
The old man says the parents of the third child are alive and she, therefore, should not be allowed to benefit from his late son’s estate.
He also sought for an order that cash assets of the estate of his late son of over Sh60 million be collected, consolidated and deposited with a reputable asset management company for and on behalf of the two biological children for their maintenance.
The woman opposed the application, saying it lacked in merit; that she is innocent of murder until proven guilty; she is entitled to the personal effects and household goods of the deceased and a life interest in the residue of the estate.
And in the unlikely event she is convicted of murder, she said, her life interest will cease by operation of law and as such the estate of her late husband will not suffer any prejudice.
As regards the third child, she said, her late husband treated her as one of his children, paid her school fees and other expenses and listed her as one of his beneficiaries in his Life Insurance Policy. She believes the girl has an equal interest in the estate as her two biological children.
On October 4, 2018, Judge Abida Ali Aroni stopped the widow from distributing the estate.
“Justice of the case militates towards a stay of confirmation and distribution pending hearing and determination of the criminal case currently facing the widow. With liberty for the children to apply as dependents,” she held.
She added, “From the record, it is not lost that there is bad blood between the two administrators, which may not augur well for purposes of administration. Mistrust & anger are exhibited by the respective pleadings. The most reasonable way of managing the estate will be to allow a third party to do so. I, therefore, direct and order that the parties do agree within the next ten (10) days of today’s date on a reputable Asset Management Company to collect, consolidate and manage the said assets until further orders of the court.”
Aggrieved by the High Court decision the woman went to the Appeal Court. She wanted the High Court decision suspended pending determination of her appeal.
In her appeal, she said the judge denied her the presumption of innocence by stripping her of power to manage her late husband’s property.
She asked why the court concluded that the relationship between her and her father-in-law was beyond repair.
“it is not clear where the court drew the inference that the relationship between the two administrators is beyond repair and redemption to warrant appointment of an asset management company; the ruling of the learned judge has occasioned a great failure of justice to the applicant and that it is in the interest of justice that the orders sought should be granted,” she said.