Wrangling members of the late Cabinet minister Peter Mbiyu Koinange have been denied a chance to move to the Supreme Court after three appellate judges ruled that there was nothing of great public importance in the matter, for the case to be handled by the apex court.
Some beneficiaries of the estate are against the inclusion by the Court of Appeal last year of two women as beneficiaries of the estate. Mr George Kihara Mbiyu, supported by Mr David Waiganjo Kionange and Ms Lennah Wanjiku, wanted the Court of Appeal to allow them argue their case in the Supreme Court. They said the case has been pending in court for more than three decades, and raised matters of general public importance.
Justices William Ouko, Asike Makhandia and Otieno Odek, however, said the issues for the intended appeal cannot be said to be of “any special jurisprudential moment”.
Through Dr Ken Kiplagat, Mr Kihara said in their judgment last year, the Court of Appeal disturbed settled principles of law and if the judgment is allowed to stand, it will cause confusion to lower courts.
The lawyer said the trial court is required to concentrate only on the evidence given at trial and not evidence adduced in interlocutory proceedings by way of affidavit, and that the Supreme Court should re-affirm the primacy of evidence given orally.
In the intended appeal, the family wanted the court to confirm whether a person who is customarily married has the capacity to contract a statutory marriage, and whether a certificate of marriage issued under the Marriage Act supersedes a customary marriage contracted under the Kikuyu Customary law.
Mr Kihara, Mr Waiganjo and Ms Wanjiku have contested the inclusion of Margaret Njeri and Eddah Mbiyu as part beneficiaries of the estate. They maintained that the two were not widows of their father Mbiyu Koinange. They said Margaret divorced their father and married his brother, Mr Charles Karuga Koinange. They also claimed Eddah was an assistant to the former Minister and cohabited with him briefly but never had a child with him.
While opposing the case, senior counsels Paul Muite and Ahmednasir Abdullahi said the case does not disclose any matter of general public importance that necessitates input from the Supreme Court.