• The children John Wagura, Patrick Maina, Lucy Wanjiku, Antony Wachira were among those in the suit.
• Waithanwa who died in 1994 aged 77, was a polygamist with three wives and 21 children.
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The Court of Appeal has dismissed a suit by two widows and their six children in which they sought to inherit the property of their co-wife.
Tabitha Ikiki and Leah Njoki had contested the will of their husband Onesmus Ikiki Waithanwa, saying it was null and void.
The children John Wagura, Patrick Maina, Lucy Wanjiku, Antony Wachira were among those in the suit.
The will executed by advocate, Lee Gachiga, favoured the third wife, Mary Ikiki, who has one son.
Judges Daniel Musinga, Patrick Kiage and Agnes Murgor ruled that the court was not bound to accept the evidence of the expert. The totality of the evidence was considered and properly dismissed.
Waithanwa who died in 1994 aged 77, was a polygamist with three wives and 21 children.
Gachiga who was the executor of his will petitioned for a grant of probate on June 12, 2000. It was objected by the appellants.
They said the will was null and void for having disinherited the first two widows and their children.
“The will was discriminatory towards the first two wives and favoured the third wife and her child and was influenced by Mary, the main beneficiary," they said in an affidavit.
The Nyeri High Court declared the will was valid and dismissed the objections by the widows and their children.
“In considering the issues filed in the matter, the response of the court is that the petitioner has proved that the will is the valid will of the deceased. It has proved that it was executed in accordance with the law. No evidence was adduced to prove influence by the petitioner or the deceased’s third wife on the deceased making this will,” the court said.
The widows appealed the ruling.
The appellants filed a memorandum of appeal complaining that the learned Judge erred in dismissing their contention that failure by Gachiga to call the advocate who drafted the will to testify was fatal to its validity.
They said the magistrate also erred by concluding that the will was made by the deceased despite the signature on the said document not being proven to be his.
They also contested that by the judge concluding that the testator was not influenced in making the will despite the third wife getting the lion's share without reason.
Equally, the will suggests that the reason for their disinheritance was because they had cases against their father, yet there was no evidence of any case against the deceased
“Having found that the will was valid, it therefore follows that the deceased had the freedom to dispose of all his earthly possessions as he deemed fit. It was within this very exercise of testamentary freedom that the deceased elected to leave out his sons, John and Joseph, and in the same breath, bequeathed the lion's share of his estate to his 3rd wife for reasons that were personal to himself.
The appellants only alluded to the fact that it was suspicious that the Mary who had only one son received 70% of the estate and that she was in cahoots with the lawyer to benefit from the deceased's estate; and that the executor of the will was biased as he withdrew the money in the deceased's account and gave the entire amount to the deceased's third wife
“Without belabouring this point, we are fully satisfied that the learned Judge correctly analyzed the totality of the evidence and came to the correct conclusion. There is therefore nothing to warrant interference by this Court with her findings”, the judges ruled.