In re Estate of Elizabeth Wanjiru Gitee alias Wanjiru Gikonyo (Deceased) (Civil Appeal 158 of 2021) [2026] KEHC 7115 (KLR) (22 May 2026) (Judgment)

In re Estate of Elizabeth Wanjiru Gitee alias Wanjiru Gikonyo (Deceased) (Civil Appeal 158 of 2021) [2026] KEHC 7115 (KLR) (22 May 2026) (Judgment) Neutral citation: [2026] KEHC 7115 (KLR) Republic of Kenya In the High Court at Kiambu Civil Appeal 158 of 2021 A Mshila, J May 22, 2026 IN THE MATTER OF THE ESTATE OF ELIZABETH WANJIRU GITEE alias WANJIRU GIKONYO (DECEASED) Between Hannah Waruguru Kamau 1st Appellant Mary Njoki Kimani 2nd Appellant and Maureen Wambui Nyambura Respondent and Samuel Gikonyo Gitee Defendant (Being an appeal from the Ruling by Hon. F. I. Koome (SRM) delivered on 31/08/2021 at Limuru Law Courts in Succession Cause No. 75 of 2017) Judgment Background 1.The 2nd Respondent herein Samuel Gikonyo Gitee petitioned for a grant of letters of administration on 3/3/2017 for the estate of the deceased herein who died on 11/12/2013 and the same was issued to him on 10th July, 2017. The grant of letters of administration was subsequently confirmed on 25/3/2019. 2.On 17th October, 2019, Maureen Wambui Nyambura And Bernard Muchai Ndung’u the children of the late Lucy Nyambura Gitee filed the Summons for Revocation of Grant as they had been left out of the petition. 3.Subsequently, the grant of letters of administration issued to Samuel Gikonya Gitee was revoked on 23rd September, 2020 and the 1st Respondent herein was appointed as a co-administrator. 4.A distribution agreement dated 16th October, 2020 caused the 1st Respondent to file the Summons for Confirmation of Grant on 10th March, 2021 but the same was objected by the Appellants and an amended Summons for Confirmation of Grant was filed on 10th May, 2021. 5.After full consideration of the distribution agreement, the protests by the Appellants and the submissions, the trial Court delivered its ruling on 11/8/2021. 6.Being aggrieved by the decision of the Learned Magistrate issued on 11th August, 2021, the Appellants filed their Memorandum of Appeal dated 30th August, 2021 on the grounds that:-a.The Learned Trial Magistrate erred in law and in fact by not finding the objectors claim for fair and equal distribution for the above estate.b.The Learned Trial Magistrate erred in law and fact in distributing the estate without consent and assuming an agreement of the family meeting was a consent.c.The Learned Trial Magistrate erred in law and in fact in distributing some of the properties as per the wishes of the deceased in a non-existing will on one part, the agreement and others on Court decision.d.The Learned Trial Magistrate erred in law and fact in distributing full properties that the deceased co-owned with third parties hence half share and further denying the objectors what had been distributed to them during the life time of the deceased.e.The Learned Trial Magistrate erred in law and fact in proceeding with the hearing of the cause whose estate estimated value is way higher than its jurisdiction. 7.The Court directed the parties to canvass the appeal by way of written submissions. Appellants’ Submissions. 8.The Appellants submit that the trial Court lacked jurisdiction considering the estate's worth exceeds Kshs 21,000,000. Reliance was placed in the case of Owners of the Motor Vessel "Lillian S" v. Caltex Oil (Kenya) Ltd. The Court was urged to find that the succession proceedings conducted before a magistrate whose pecuniary limit is exceeded by the value of the estate are void and the matter should be heard de novo in a Court of competent jurisdiction. The Appellants contend that the settlement agreement's signatures do not represent legitimate consent. They were duped into signing a paper that was not consistent with spoken family conversations. Reliance was placed in the case of Flora N. Wasike v. Destimo Wamboko (1988) eKLR. Further, it was submitted that a consent may be revoked in cases where there is proof of fraud, error, or deception. Reliance was placed in the case of Brooke Bond Liebig Ltd v. Mallya (1975) EA 266. The Appellants submit that their properties are encumbered by 3rd parties as such the allocation is unjust. Lastly, it was submitted that the Court must examine the distribution to make sure it complies with the law and safeguards all beneficiaries rather than abdicating its statutory obligation by simply adopting a family agreement. Respondents’ Submissions 9.The 1st Respondent argues that the trial Court had jurisdiction as the 2nd Respondent petitioned for a grant stating that the estate was worth Kshs. 5,000,000/= which was within the Resident Magistrate's pecuniary limit. The claim that the estate is worth more than 21 million was said to unsubstantiated. Reliance was placed in the case of Mburu & 4 others v. Mburu & 3 others (2025) KEHC 12574 (KLR). The Respondent argues that the estate was distributed fairly, legally, and in accordance with a voluntary family agreement that was made following multiple meetings to settle the dispute peacefully. All beneficiaries, including the appellants, took part in these discussions and eventually signed a formal family agreement that specified how the inheritance would be divided. the distribution by the trial Court was said to be fair and lawful as it encouraged amicable resolution while considering the protests and the Court did not impose as claimed by the appellants. The appellants were said to have willingly signed the agreement which was written in Kikuyu a language they understood. Further it was submitted that the Court had considered the protests, the family agreement and the wishes of the deceased. The Respondent contends that the signed family agreement has the legally enforceable contractual impact of a consent order and can only be set aside if there is evidence of fraud, coercion, mistake or misrepresentation which claims are not present in this matter. Reliance was placed in the cases of Flora N. Wasike v. Destimo Wamboko and Hirani v. Kassam. Issues For Determination 10.Having read and considered the Court record and the submissions by both parties, it is my opinion that the main issue arising for determination is;i.Whether the trial Court had pecuniary jurisdictionii.Whether the trial Court erred in adopting the distribution agreement dated 16/10/2020. Analysis 11.This being a first appeal, it is the duty of the Court to review the evidence adduced before the lower Court and satisfy itself that the decision was well-founded. In Selle & Another vs. Associated Motor Boat Co. Ltd & Others (1968) EA 123, this principle was enunciated thus“...this Court is not bound necessarily to accept the findings of fact by the Court below. An appeal to this Court ... is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect..." Whether the trial Court had pecuniary jurisdiction 12.The Appellants submit that the trial Court lacked jurisdiction as the estate is worth more than Kshs. 21,000,000/=. On the other hand, the 1st Respondent contends that the lower Court had the requisite jurisdiction as the value of the estate was stated as being Kshs. 5,000,000/= by the 2nd Respondent. 13.The Court was therefore, urged to transfer the matter in a Court of competent jurisdiction. 14.This Court has perused the record and it has noted that the 2nd Respondent petitioned the trial Court for letters of administration and stated that the estate was worth Kshs. 5,000,000/=. The same was not objected by the beneficiaries who signed the consent and participated in the succession proceedings therein. 15.The lower Court then proceeded on the strength of the estimated worth of the deceased’s estate and at no one point was the issue of pecuniary jurisdiction raised by any beneficiary. 16.Jurisdiction is everything and it should be raised at the earliest opportunity possible. Refer to the case of Owners of the Motor Vessel ‘Lillian S’ vs Caltex Oil (Kenya) Ltd (1989) KLR 1. 17.It is this Court’s finding that the issue of pecuniary jurisdiction cannot be raised now. The Appellants had all the time to do so in the trial Court but failed to do so as such their attempt to raise the issue in the Court herein is just but an afterthought. 18.This ground of appeal is found to be devoid of merit and it is disallowed. Whether the trial Court erred in adopting the distribution agreement dated 16/10/2020. 19.The Appellants contend that the trial Court imposed the settlement agreement dated 16/10/2020 on the basis that the same had been signed by the Appellants who were present during the family meeting. 20.The Respondents contend that the beneficiaries including the Appellants voluntarily signed the distribution agreement that was made following multiple family meetings that geared towards peaceful settlement of the issue of distribution. 21.The Appellants contend that their signatures did not mean that they were agreeable to the consent and that the consent can be set aside anyway where there is fraud, error or deception. 22.The Respondents contend that the Court considered all the material before it in arriving at its decision and that only proof of fraud, coercion, mistake or misrepresentation could cause the consent to be set aside by the Court herein. 23.A thorough perusal of the impugned ruling dated 11/8/2021 shows that the trial Court only considered the amended summons for confirmation of grant, replying affidavit, affidavit of protest and the rival submissions before arriving at its determination. 24.It is evident that the trial Court interrogated the several proposed modes of distribution presented before it and concluded that in upholding the agreement by the family members dated 16/10/2020, the same would amount to upholding the wishes of the deceased. The trial Court went on to point out that the proposal by the Appellants would ignite conflicts rather than manage the same. 25.Be that as it may, there is evidence that the Appellants were present in the family meetings and ultimately signed the distribution agreement dated 16/10/2020 that the trial Court finally adopted as the mode of distribution for the estate of the deceased. 26.The Appellants allege that they were duped into signing the agreement but have not produced any evidence to support these serious allegations. 27.The Letters of Administration intestate had been revoked previously and there was an allegation that there was a WILL in existence. Once the parties had established the existence of a WILL it would have been prudent and proper for the trial Court to direct that the validity of the WILL be tested first before interrogating and adopting the distribution agreement. This failure by the trial Court is sufficient evidence that the trial Court acted on wrong principles of the law; and this Court is satisfied that the trial Court erred in adopting the distribution agreement dated 16/10/2020 before interrogating and testing the validity of the contentious WILL. 28.There, being proof of error by the trial Court this Court finds that the judgment based on the Family Distribution Agreement was prematurely and erroneously validated and adopted. Findings And Determination 29.For the forgoing reasons this Court makes the following findings and determinations.i.The appeal is found to have merit and it is hereby allowed.ii.The Judgment of 11/08/2021 is hereby set aside.iii.The File be remitted to the lower Court for directions.iv.This being a family matter and to bring closure each party to bear their own costs.Orders Accordingly. DATED SIGNED AND DELIVERED VIA TEAMS AT VOI THIS 22ND DAY OF MAY, 2026A.MSHILAJUDGEIn the presence of;Millicent/Sanja - Court AssistantNjigina Macharia - for the AppellantKyalo - for the 1st RespondentN/A for the 2nd Respondent