Two women whose children are beneficiaries of the Sh2 billion property owned by former Nyeri governor Nderitu Gachagua have lost an attempt to remove city lawyer Njoroge Regeru from the position of executor of the late politician’s Will.
The women, identified in court proceedings as EMG and SW, were lovers of the late governor and had accused Mr Regeru of alleged negligence for failing to cater for the school fees of their two children aged six and 12 years.
They alleged that the children are at risk of dropping or being removed from their schools owing to huge fees balances.
But the court dismissed the application and told the women to stop relying entirely, for survival, on what Governor Gachagua bequeathed them for the maintenance and upkeep of the minors.
Justice Lydia Achode told the women that under Article 53 of the Constitution, they also have equal parental responsibility over the subject minors.
“It is therefore not for them to rely entirely on the minors’ bequests for their maintenance. They should be alive to the fact that the person who worked and maintained these minors in a certain standard of life has long since died and the applicants must learn to cut their coat according to the cloth at hand,” said the judge.
According to the Will, the minor aged six years is entitled to five per cent of the governor’s net estate whereas the other one is entitled two per cent. Their share is supposed to be held by their respective mothers in trust.
They sired the children with the late governor in 2009 and 2015 outside his polygamous wedlock.
Judge Achode noted that the Estate is financially strapped, owing to the effects of the Covid-19 pandemic, which resulted in the closure of Olive Gardens Hotel Nairobi, the key income generator of the estate.
The pandemic also delayed the liquidation of the governor’s assets for distribution of the proceeds to all the beneficiaries according to his Will.
The judge also found that executors of the Will -lawyer Regeru, Mathira MP Rigathi Gachagua (governor’s younger brother) and Mwai Mathenge (governor’s friend) -had made some financial advancements totalling to Sh15 million to the two women.
The amounts were disbursed between September 2017 and 2021 to provide school fees and maintenance to the subject minors although the Will does not have such a requirement.
“Advancements made to the subject minors are only but to avert any financial difficulty that may be occasioned owing to the delay (in liquidation of assets) and were not provided for in Gachagua’s Will. It must also be remembered however that there are several other beneficiaries in the estate and they are yet to receive any payment on their part,” said the judge.
Gachagua’s last written Will
She further noted that in March 2020, each of the two women received another Sh2,882,494 being payment of gratuity proceeds from the County Government of Nyeri.
“They have not demonstrated how the Gratuity proceeds paid out to them have been utilised for the benefit of the minors, or specifically towards their school fees and maintenance. Instead, they have come to court demanding additional monies towards maintenance of the minors and to claim arrears in school fees and monthly maintenance from March 2020,” said the judge.
To Ms EMG, the mother of the six-year-old, the court said in view of the minor’s age and gratuity proceeds, it is alarmist for her to claim that the child is at risk of being removed from school for fees arrears.
In dismissing their application, the judge said it is upon the court to ensure that the monies advanced to the two women are not wasted or squandered at the behest of the subject minors.
In respect of the request to substitute Mr Regeru role of an executor of the Will, the judge said she was not convinced by the arguments propounded by the women.
“In any event, they have not demonstrated why they would be better managers of Gachagua’s estate. Regeru was rightfully appointed as Executor under Gachagua’s last written will and it is right to assume that unless the contrary is proven, he is best suited as co-executor to realize Gachagua’s last wishes,” said Justice Achode.
The women had stated that they were in financial agony and wanted court to order for upward revision of minor’s monthly upkeep to Sh200,000 each. They were not in employment and it was the late governor who catered for all their needs.
Ms EMG said she had spent more than Sh500,000 on setting up her six-year-old child for virtual classes, which were started at the onset of the Covid-19 pandemic.
She asserted that due to the failure by the Executors of the estate to provide for her and the minor, she had taken up loans from both friends and financial institutions to cater for the minor’s education and other basic needs.
Needs of the beneficiaries
Ms SW in her arguments said she had so far spent more than Sh7 million towards her 15-year-old child’s school fees since the Executors of the governor’s Will had only undertaken to pay a sum of Sh100,000 when the amount due was Sh640,000 per term.
She stated that as of March 31, 2021 the balance owed to the school that the minor attends amounted to Sh1 million. She claimed that on April 15, 2021, the school wrote to her informing her that the minor’s report cards had been withheld as a result of non-payment of school fees.
Ms SW further stated that the Executors were not acting in the best interest of the estate, as they had prioritized payment of their fees and neglected the needs of the beneficiaries.
She singled out the Executor, Mr Regeru, as having paid himself fees in excess of Sh16 million. On this basis, she urged the court to strip him of his executorial duties and appoint her as Executor in his place.
But the court found that the Sh16 million was not paid to Mr Regeru in person but to a law firm known as Njoroge Regeru & Company Advocates as legal costs for having represented Governor Gachagua in various matters.
The payments were provided for under Article 10 of the Will. Mr Regeru is one of the several partners in the firm.
Mr Mwai Mathenge, a co-executor, said the estate companies owed a sum of about Sh700 million to Co-operative Bank.
He argued that in spite of the challenges, the Executors had prioritised the two minors over the other beneficiaries, some of whom were yet to receive any amount from the estate.
“The Will did not make provisions for maintenance of dependants, only that the Executors would liquidate the assets, settle liabilities and distribute the net estate to the beneficiaries provided for in Article Six of the Will,” he disclosed.
He stated the women ought not to look to the Estate as the sole source of income for the upkeep and maintenance of the minors. BY DAILY NATION
