Joseph Njoroge Wairima v Gabriel Ndungu Wairima

Valuation and Asset Management, Kiambu County who had placed the value of the bungalow and improvements at Kshs. 1,800,000/-. c. 3. The learned trial magistrate erred in law and in fact in failing to order for the sale of the property based on the higher value in the face of two conflicting government reports, but instead chose the absolute lowest value and omitted to include some property on the land. Parties disposed of the appeal by way of written submissions. The Appellant’s Submissions 4. The appellant submits that he and his siblings agreed to sell the share of their sister’s portion, Koreta Wanjiku Wairima (deceased) and proceeds be shared equally among the six beneficiaries including the respondent provided that the property be sold at market value. The appellant argues that the respondent wants to but the said portion, but if he buys it following the ruling of the trial court he shall disenfranchise all the other beneficiaries and unjustly benefiting himself. 5. Relying on the case of Zum Investments Limited vs Habib Bank Limited (2014) eKLR, the appellant argues that the trial court ought to have ordered for an independent valuation as he produced a valuation that valued the portion of land at Kshs. 1,800,000/- whereas the respondent provided a land valuation report of Kshs. 1 million for a ¼ of an acre of land near a growing shopping centre. The appellant argues that the disparity of Kshs. 800,000/- defeats the interests and defrauds the other beneficiaries of the estate of their sister as it does not represent the true value of the property. 6. The appellant refers to the cases of East African Development Bank vs Hyundai Motors Kenya Limited (2006) eKLR and Joseph Siro Mosioma vs Housing Finance Corporation of Kenya & 3 Others (2008) eKLR and submits that the purpose of valuation is to obtain the best price reasonably attainable at the time of sale. The appellant argues that the respondent’s actions are tainted with malafides as he is excessively eager to acquire and take ownership of the property and if he acquires the suit property at the lowest value, it would occasion damage to all other beneficiaries thus causing irreparable damage which cannot be compensated by way of damages. 7. The appellant cites the cases of Re Estate of Godfrey Kituku (Deceased) & Another (Deceased) [2018] eKLR; Estate of Dorcas Wairimu Riitho (Deceased) [2021] eKLR and Re Estate of Carl Peter Roseberg (Deceased) (Succession Cause 320 of 2015) [2023] KEHC 2196 (KLR) (10 February 2023) (Ruling) and submits that the court ought to appoint an independent valuer to value the property and the same to be supervised by the Deputy Registrar. The said property should then be sold at the new valuation price and the benefits shared equally to all the beneficiaries. The Respondent’s Submissions. 8. The respondent submits that the appellant has not shown in what manner the lower court ruling is defective. From the record, it is clear that the learned magistrate analysed the evidence that was presented by both parties and made a determination that was just and fair to all the beneficiaries. 9. The respondent submits that it is not clear whether the appellant has initiated the current suit as an administrator of the estate of his father or his sister. The respondent submits that he made an application on 29th June 2023 for the court to restrain the appellant from interfering with his quiet possession in the suit property. The respondent further submits that although he has stayed on the suit mises for over 35 years, he applied to the trial court to buy the land so that he could fairly share the proceeds with his siblings. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19720/eng@2025-06-12 2

page 2 of 6

10. The respondent submits that although the appellant alleges to act on behalf of his siblings, they have received their share from the Kshs. 1,200,000/- that the trial court granted. Further, the cause in the trial court was petitioned by two administrators but the appellant has solely lodged the instant appeal. 11. The respondent further submits that the appellant brought a valuation report from the county valuer who valued the developments at Kshs. 400,000/- whereas that of the court valued at Kshs. 1 million yet he wants to dictate to the court to be guided by the development value that was awarded by the government valuer since it is higher than that of his own valuer but on the value of the land, he shifts to his valuer since he valued the land at a higher price than that of the government valuer. Issue for determination 12. The main issue for determination is whether the appeal has merit. The Law 13. Being a first Appeal, the court relies on a number of principles as set out in Selle and Another vs Associated Motor Boat Company Ltd & Others [1968] 1EA 123: “ …..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 into account of particular circumstances or probabilities materially to estimate the evidence.” 14. In Gitobu Imanyara & 2 Others vs Attorney General [2016] eKLR the Court of Appeal stated that: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. 15. From the above cases, the appropriate standard of review to be established can be stated in three complementary principles:a. That on first appeal, the Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions; b. That in reconsidering and re-evaluating the evidence, the first appellate court must bear in mind and give due allowance to the c. fact that the trial court had the advantage of seeing and hearing the witnesses testify before it; and d. That it is not open to the first appellate court to review the findings of a trial court simply because it would have reached different results if it were hearing the matter for the first time. Whether the appeal has merit 16. The appellant in his submissions called for an independent report. In my considered view, the two reports filed by valuers from different departments, are sufficient for this court to peruse and come https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19720/eng@2025-06-12 3

page 3 of 6

up with a finding on the value of the property. I find no need of an additional valuation report. The respondent raised the issue of want of locus standi on part of the appellant on the basis that he is not an administrator of the estate of Koleta Wanjiku Wairimu but an administrator of his deceased mother’s estate, the late Wairima Gicheha. The parties herein were in agreement that their sister Koleta had no children who would take her share in the deceased’s estate. It is not in dispute that all the siblings of the appellant agreed and informed the court on 4th August 2023 that the ¼ acre share of their late sister Koleta be sold to the respondent. It is further noted that the respondent has been occupying the said property for many years without any objection from the rest of the beneficiaries. The respondent is an administrator beneficiary in the estate of his mother Wairima Gicheha. The deceased mother is the registered owner of the land L.R Ngenda/Mangu/974. It follows that the appellant has a right to defend his interest in his deceased mother’s estate and cannot be said to have no locus standi. The property is an asset of his deceased mother that is available for distribution in the said estate. Secondly, the appellant has legal interest in the ¼ share occupied by the respondent in that he will share the proceeds of the share with his siblings once the purchase price is paid by the respondent. The value of the share will affect the appellant’s share either positively or negatively. As such, the appellant has a right to file this appeal against the decision of the court below and I so find. 17. It is noted from the record that the beneficiaries of the estate of the deceased had no objection to the respondent buying the ¼ acre share of their sister, Koreta Wanjiku Wairima, who is the deceased and entitled to the developed ¼ acre share of L.R. Ngenda/Mangu/974. The respondent while making the application for the share to be sold to him informed the trial court that he had planted trees, dug a borehole and built a house and all his siblings had no objection with him purchasing the share. One of the administrators of the estate herein Henry Wabacha Wairima stated that the respondent had been on the suit premises housed on Koleta Warima’s share. The appellant who was the 2nd administrator in the estate of their deceased mother for a long time did not object to the sale provided that he paid the market price. The trial court then directed that the property to be subjected to valuation by a government valuer to determine the purchase price of the land. Later, another report was to be admitted with no objection on request by the parties who included the appellant. 18. The appellant argues that the land was undervalued as two reports were availed, one from a valuer at the County Government of Kiambu and the other by a valuer from the Ministry of Lands and Physical Planning. The report by the Directorate of Valuation and Asset Management Kiambu County valued the land at a market value of Kshs. 2,200,000/- with the land valued at Kshs. 1,000,000/and the improvements and site works at Kshs. 400,000/-. The government valuer, Gatundu Lands Registry valued the land at a market value of Kshs. 2,800,000/- with the value of the land being at Kshs. 1,000,000/- and the improvements at Kshs. 1,800,000/-. The valuer further attached appendices of comparable recent values of land parcels Ngenda/mangu/2312 measuring 0.2 ha sold at 2 million which is Kshs. 4 million per acre and Ngenda/mangu/2261 measuring 0.203 ha sold at Kshs. 2 million which is Kshs. 4 million per acre thus the value of ¼ an acre would be Kshs. 1million. 19. The appellant argues that due the difference in value of the sum of Kshs. 800,000/-, the suit property has been undervalued and there is need for an independent valuation. 20. The principles that guide courts in determining whether or not to order an independent valuation have been discussed in the case of Zum Zum Investments Limited vs Habib Bank Limited (2014) eKLR where the court held that:It is not sufficient for the applicant to merely claim that the intended selling price is not the best price obtainable at the time by producing a counter valuation report. The applicant must satisfactorily demonstrate why the valuation report that the respondent intends to rely on in disposing of the suit property does not give the best price obtainable at the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19720/eng@2025-06-12 4

page 4 of 6

material time…..The applicant needs to show, for instance, that the respondent’s valuer is not qualified or competent to carry out the valuation, or that the valuation was carried out in consideration of irrelevant factors or that the valuation was done before the time of the intended sale. 21. Similarly in the case of Palmy Company Limited vs Consolidated Bank of Kenya Limited [2014] eKLR the court held:The onus of establishing on prima facie basis, that the applicant’s right has been infringed by the respondent by failing to discharge the duty of care under Section 97(1) of the Land Act lies on the applicant…The court needs cogent evidence and material in order to say that prima facie, there has been an undervaluation of the suit property which is an infringement of Section 97(2) of the Land Act by the respondent as to entitle the court to call for an explanation or rebuttal from the respondent. 22. Guided by the principles set out in the cases above, it is my considered view that the appellant has not offered evidence to show that the valuation done was a complete undervaluation of the suit property. The appellant has not demonstrated that the valuer from the Ministry of Lands and Physical Planning was unqualified. In fact, the government valuer is the authorized officer in matters of value of land where expert evidence may be required. The appellant had a duty to demonstrate that the respondent’s valuation report was not the best or that the valuer was not competent to carry out the valuation. The appellant did not outline any irrelevant factors considered by the valuers in undertaking their valuation. Looking at the two reports, the report by the county government valuer disregarded some of the developments on the land and was not clear why the omission occurred in the report. The amount quoted for the improvements was quite low which downplays the improvements the respondent has done. 23. On looking at the two valuation reports, it is noted that each one of them has considered the necessary factors in arriving at the valuation of the land measuring ¼ of an acre plus improvements thereon. The G.K. survey or report takes into consideration extra factors, for example, the borehole, water connected to the property, the drainage, pit latrine and electricity connects. This report gives the value of the land at KSh.1,000,000 and the improvements as KSh.540,000. On the other hand, the report of the County Government give value of the land as KSh.1,800,000 and KSh.400,000/= for the improvements. In my considered view, the County Government report seems to have exaggerated the value of the land given its location as I am informed by the facts spelt out in the two reports. 24. It is my considered view that the report of the Government Surveyor report carried more credibility given the extra aspects considered therein. It is noted that the learned Magistrate adopted the same report and arrived at a value of KSh.1,200,000/=. The value of the improvements of Ksh.540,000 excluded given the in disputed fact that the respondent had made some additional improvements for the time he used the plot before the court heard the matter . 25. Consequently, I find that the Magistrate did not err in adopting the report of the Ministry of Lands and Physical Planning and in assessing the purchase price/value of the property at KSh.1,200,000/=. 26. The value of KSh.1,200,000/= is hereby upheld as payable to the beneficiaries by the respondent to share equally. 27. This appeal has no merit and it is hereby dismissed. 28. This being a family matter, it is hereby ordered that each party meets their own costs of this appeal. 29. It is hereby so ordered. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19720/eng@2025-06-12 5

page 5 of 6

JUDGMENT DELIVERED VIRTUALLY, DATED AND SIGNED AT THIKA THIS 12TH DAY OF JUNE 2025. F. MUCHEMI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19720/eng@2025-06-12 6

page 6 of 6