In re Estate of Kimani (Family Appeal E008 of 2023) [2026] KEHC 9653 (KLR) (3 July 2026) (Judgment)

In re Estate of Kimani (Family Appeal E008 of 2023) [2026] KEHC 9653 (KLR) (3 July 2026) (Judgment) Neutral citation: [2026] KEHC 9653 (KLR) Republic of Kenya In the High Court at Kiambu Family Appeal E008 of 2023 KL Kandet, J July 3, 2026 Between Michael Matthew Muigai Kimani Appellant and Charles Fredrick Kamau Kimani & 4 others Respondent (Being an appeal against the Ruling of Hon. P. Muholi, Chief Magistrate, delivered on 31st August 2023 in Githunguri Magistrate’s Succession Cause No. 1 of 2020) Judgment 1.This appeal arises from the ruling of Hon. P. Muholi, Chief Magistrate, delivered on 31st August 2023 in Githunguri Magistrate's Succession Cause No. 1 of 2020. The proceedings before the trial court were commenced by a Petition for Grant of Letters of Administration Intestate dated 13th August 2019, filed by Michael Mathew Muigai Kimani (the Appellant) in respect of the estate of the late Janet Wambui Kimani (the deceased), who died intestate on 15th April 2018. 2.On 1st September 2020, letters of administration intestate were issued to the Appellant. Thereafter, on 6th December 2022, the Appellant filed a Summons for Confirmation of Grant. The Respondents opposed the application by filing an Affidavit of Protest dated 19th December 2022, alleging, among other things, that the Appellant had intermeddled with the estate by exclusively managing the deceased's farming activities and appropriating the proceeds from the coffee, banana and dairy farming 3.In their Protest, the Respondents agreed with the proposed distribution of Title No. Gatamaiyu/Gathugu/T.129, the deceased's shares in EAB, Githunguri Dairy Farmers Co-operative Society Ltd, Kenya Co-operative Creameries Ltd, and the funds held in the deceased's Equity Bank, Absa Bank and K-Unity Sacco accounts. However, they contended that L.R. No. Komothai/Kiratina/489/16 did not belong to the deceased but to Githioro Enterprises Limited. They further alleged that the deceased had operated a farming business which the Appellant continued to run without accounting to the beneficiaries. They also asserted that the Appellant had failed to disclose liabilities of the estate, including hospital bills, workers' salaries and suppliers' dues, sought that Motor Vehicle Registration No. KBK 479K be sold and the proceeds shared equally among the beneficiaries, and contended that the Appellant should account for the two cows and two calves that formed part of the deceased's estate at the time of her death 4.Upon considering the Protest, the trial court held that L.R. No. Komothai/Kiratina/489/16 did not form part of the deceased's estate as it was registered in the name of Githioro Enterprises Limited, but that the deceased's shares in the company formed part of the estate and were to be shared equally among the beneficiaries. The court further found that there were no outstanding liabilities against the estate and that Motor Vehicle Registration No. KBK 479K was to be sold and the proceeds shared equally among the beneficiaries. The court also found that the Appellant had assumed management of the estate and was under a duty to account for the proceeds from the coffee, banana and dairy farming, as well as his administration of the estate, and accordingly directed him to render a full and accurate account within sixty (60) days. Consequently, the grant was partially confirmed. 5.Aggrieved with the Ruling dated 31st August 2023, the Appellants preferred this appeal which is based on the following grounds:1.That the learned trial magistrate erred in law and in fact in finding that the Appellant had intermeddled with the deceased's estate and consequently ordering him to render accounts in respect of the dairy, banana and coffee farming.2.That the learned trial magistrate erred in law and in fact in failing to find, despite the evidence on record, that the farming activities were not carried out on the deceased's estate but on land belonging to the late Daniel Gilbert Kimani.3.That the learned trial magistrate erred in law and in fact in disregarding the evidence relating to the breeding of livestock, which the Appellant contended was solely facilitated by him, and thereby denying him the fruits of his efforts by ordering him to render accounts.4.That the learned trial magistrate erred in law and in fact in purporting to distribute proceeds of farming which, according to the Appellant, did not form part of the deceased's estate but had been acquired solely by the Appellant and his family.The Appellant prayed that the appeal be allowed; that the Ruling ordering him to render accounts regarding the dairy, banana and coffee farming be set aside; and that the costs of the appeal and of the proceedings before the trial court be awarded to him Submissions on the Appeal 6.The appeal was canvassed by way of written submissions. The Appellant filed his submissions dated 18th May 2026 and the Respondents filed his submissions dated 20th May 2026. 7.The Appellant submitted that the trial court erred in directing him to render accounts of the proceeds from coffee, banana and dairy farming, contending that the proceeds did not constitute part of the deceased's estate but were generated after the deceased's death through his own labour, capital and management. He argued that under section 3(1) of the Law of Succession Act, the estate comprises only the free property owned by the deceased at the time of death and, therefore, any income accrued after the deceased's demise from farming activities revived by him could not properly be treated as estate property. 8.The Appellant further submitted that in his Summons for Confirmation of Grant he had distinguished between the deceased's bank balances existing as at the date of death, which he acknowledged formed part of the estate for distribution, and monies earned thereafter, which he claimed belonged to him personally. He therefore contended that the trial court misdirected itself by failing to distinguish between estate assets and income generated after the deceased's death, and consequently erred in finding that he was required to account for such proceeds. 9.On the Respondents' Cross-Appeal, the Appellant submitted that it was incompetent for having been filed outside the statutory period prescribed under section 79G of the Civil Procedure Act without leave of the court. He argued that the Respondents had not satisfied the conditions for extension of time as set out in Mwangi v Kenya Airways Ltd and urged the Court to strike out the Cross-Appeal. 10.Accordingly, the Appellant urged the Court to allow the appeal, set aside the order requiring him to account for the farming proceeds, strike out the Respondents' Cross-Appeal, and award him the costs of the appeal and the proceedings before the trial court. 11.The Respondents opposed the appeal and supported the Cross-Appeal. They submitted that the trial court properly directed the Appellant, as the administrator of the deceased's estate, to render a full account of the estate, arguing that he had managed and benefited from estate assets without involving the other beneficiaries. 12.They submitted that under sections 45 and 83 of the Law of Succession Act, an administrator is under a statutory duty to preserve the estate, render a full inventory and account of the estate, and is prohibited from intermeddling with estate property. In support of this position, they relied on re Estate of Sandislau Murianki Mutwiria (Deceased) [2022] KEHC 423 (KLR), where the Court observed that unauthorized dealings with estate property amount to intermeddling and affirmed the Court's powers under section 47 of the Law of Succession Act and Rule 73 of the Probate and Administration Rules to make appropriate orders for the protection of an estate. 13.The Respondents further submitted that the evidence before the trial court demonstrated that the Appellant had assumed exclusive control of the estate and its income-generating activities, changed the farm's banking arrangements, transferred estate proceeds into his personal account without the consent of the beneficiaries or leave of the court, and failed to satisfactorily account for his management of the estate. They therefore contended that the order requiring him to render accounts was justified. 14.In support of their Cross-Appeal, the Respondents argued that the trial court's ruling of 3rd October 2024 was inconsistent with its earlier ruling requiring the Appellant to account for estate income. They contended that having found that the income generated from the estate was subject to accounting, the court erred in subsequently declaring that the proceeds held in the specified Equity Bank and K-Unity Sacco accounts from 15th April 2018 belonged exclusively to the Appellant, thereby excluding the other beneficiaries. 15.The Respondents further submitted that all the beneficiaries were entitled to equal distribution of the deceased's intestate estate pursuant to Article 27 of the Constitution and section 38 of the Law of Succession Act. They relied on Stephen Gitonga M'Muriithi v Faith Ngira Muriithi [2015] eKLR in support of the principle of equal distribution among surviving children. 16.Accordingly, the Respondents urged the Court to dismiss the appeal, and allow the Cross-Appeal. Analysis And Determination 17.The court has considered the record of appeal, the pleadings and original record of the proceedings as well as the submissions by the Appellants. This being a first appeal, the duty of this Court is well settled. The Court of Appeal for East Africa set out the duty of the first appellate court in Selle v Associated Motor Boat Co. [1968] EA 123 in the following terms:“An appeal from the High Court is by way of re-trial and the Court of Appeal is not bound to follow the trial judge’s finding of fact if it appears either that he failed to take account of circumstances or probabilities, or if the impression of the demeanour of a witness is inconsistent with the evidence generally.An appeal to this court from a trial by the High 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.In particular this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally.” 18.An appellate court will not ordinarily interfere with a finding of fact made by a trial court unless such finding was based on no evidence, or it is demonstrated that the court below acted on wrong principles in arriving at the finding it did. See Ephantus Mwangi & Another vs Duncan Mw 19.The Court is equally guided by the principle in Mbogo & Another v Shah that an appellate court will not interfere with the exercise of judicial discretion unless it is satisfied that the court misdirected itself in law, took into account matters it ought not to have considered, failed to consider relevant matters, or arrived at a decision that is plainly wrong. 20.Having considered the record of appeal, the grounds of appeal, the rival submissions and the applicable law, the following issues arise for determination:i.Whether the trial court erred in directing the Appellant to render accounts in respect of the coffee, banana and dairy farming and in finding that he had intermeddled with the estate.ii.Whether the Respondents' Cross-Appeal is competent. Whether the trial court erred in directing the Appellant to render accounts 21.The Appellant contends that the proceeds from the coffee, banana and dairy farming were generated after the deceased's death through his own labour, capital and management and, therefore, did not constitute part of the deceased's estate. He argues that the trial court failed to distinguish between property belonging to the estate as at the date of death and income generated thereafter through his personal efforts. 22.On the other hand, the Respondents maintain that the Appellant, as the administrator of the estate, assumed exclusive control of the deceased's farming activities, managed the estate without involving the other beneficiaries, received proceeds from the farming activities into accounts under his control, and failed to account for his administration of the estate. 23.The office of a personal representative is fiduciary in nature. Upon the issuance of a grant, the property of the deceased vests in the personal representative by virtue of section 79 of the Law of Succession Act. However, such property does not vest in the administrator for his personal benefit but for the benefit of the estate and the beneficiaries. Consequently, an administrator is under a statutory duty, pursuant to section 83 of the Act, to preserve the estate, complete the administration thereof and render a full and accurate account of the administration whenever required. In re Estate of Julius Mimano (Deceased) [2019] eKLR the Court observed that although estate property vests in the personal representative, it does not belong to him or her personally; rather, the administrator holds it in trust for the beneficiaries while exercising the powers and discharging the duties imposed by the Law of Succession Act. 24.Equally, section 45 of the Law of Succession Act prohibits any person from intermeddling with the property of a deceased person except as expressly authorized by law or by a grant of representation. The purpose of the provision is to safeguard estate property pending its lawful administration and distribution. 25.From the record, there is no dispute that following the deceased's demise, the Appellant assumed management of the farming activities. During the proceedings before the trial court, he admitted that he had opened another account through which proceeds from the farming activities were received. He further admitted that proceeds from the coffee farming were deposited into his K-Unity account. Although he maintained that the dairy enterprise had been revived by his wife using her own resources and that the livestock belonged to her, the farming activities were undertaken on property associated with the estate and formed the basis of the Respondents' complaint that the Appellant had managed the estate exclusively without accounting to the other beneficiaries. 26.The order made by the trial court did not determine ownership of the farming proceeds nor did it direct that the proceeds be distributed among the beneficiaries. Rather, the court directed the Appellant, in his capacity as administrator, to render a full and accurate account of the proceeds from the coffee, banana and dairy farming and of his administration of the estate. Such an order was consistent with the statutory obligations imposed upon a personal representative under section 83 of the Law of Succession Act. 27.Whether some or all of the proceeds were ultimately generated through the Appellant's personal labour, investment or management is a matter that could only properly be determined upon the rendering of accounts. An administrator cannot resist accounting by asserting ownership of the proceeds before disclosing the nature of the transactions undertaken in the course of administering the estate. The duty to account is a statutory obligation and is an incident of the fiduciary office of an administrator. 28.I therefore find no error in the trial court directing the Appellant to render a full and accurate account of the proceeds from the coffee, banana and dairy farming and of his administration of the estate. The grounds of appeal challenging that order consequently fail. Whether the Respondents' Cross-Appeal is competent 29.The Appellant also challenged the competence of the Respondents' Cross-Appeal on the ground that it was filed out of time and sought to challenge a different ruling from the one that is the subject of the present appeal. 30.The record shows that the present appeal challenges the ruling delivered on 31st August 2023. The Respondents' Memorandum of Cross-Appeal, however, challenges the trial court's subsequent ruling delivered on 3rd October 2024. That ruling constituted a separate and independent decision capable of being challenged by way of a separate appeal filed within the time prescribed by law or with leave of the court where necessary. 31.A cross-appeal is ordinarily lodged in response to an appeal against the same decree or order. It cannot properly be used to challenge a subsequent and distinct decision of the trial court. In the circumstances, I find that the Respondents' Cross-Appeal is incompetent and the same is hereby struck out. 32.In the result, the Appellant's appeal lacks merit and is dismissed. The Respondents' Cross-Appeal is struck out for being incompetent. 33.Each party shall bear their own costs of the appeal. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 3RD JULY, 2026 VIRTUALLY THROUGH THE MICROSOFT TEAMS PLATFORM.KENNEDY KANDETJUDGEIn The Presence Of:Ngure For The AppellantNgatia Hb For Kinywa For The RespondentCourt Assistant: Aggrey Ochieng