Coram: Before Justice R. Nyakundi
M/S Onsando Getanda & Co. Advocates
M/S M. Korongi & Co. Advocates M/S Amasakha & Co. Advocates
INTRODUCTION AND NATURE OF THE CASE
1. Lawrence Kirunga Isigi died intestate on 18th November 1990 at Kakamega Hospital. Thirty-six years later his estate remains undistributed. In that time his widow, four of his daughters and one of his sons have themselves died. A judgment determining how his estate was to be divided was delivered on 30th November 2001; it has never been executed. The file was at one stage lost for some six years and, when traced, was found to have been interfered with. That is the melancholy background against which this judgment is delivered.
2. Before me is a Summons for Confirmation of Grant dated 20th September 2022, brought under section 71(2) of the Law of Succession Act, Cap 160, and Rule 40(2) of the Probate and Administration Rules, by Sammy Inguvu
Isigi, a son of the deceased and the present administrator. It is protested
by Radcliffe Kirunga Isigi, a son of the deceased by his second house, and by Roseline Agiza Isigi, a daughter by the first house.
3. The essential question is a narrow one of law with wide consequences. A judgment determining the distribution of this estate already exists and has never been appealed, reviewed or set aside. The administrator now asks this court to confirm a materially different distribution. Whether he may do so by way of a summons for confirmation is the question upon which this judgment turns.
4. I record at the outset that the cause has been variously described in the documents filed as Succession Cause No. 5 of 2021, No. 5 of 2022, No. 5 of 2005 and No. 282 of 2005, and the pleadings of the 2nd Protestor are headed at Kakamega although the cause is now at Vihiga. The correct description, which I adopt, is that in the amended grant and in the Summons: Vihiga High Court Succession Cause No. 5 of 2021, formerly Kakamega High Court Succession Cause No. 282 of 2005. The Deputy Registrar will ensure the file and all future pleadings bear that description.
THE COURSE OF THE PROCEEDINGS
5. The procedural history is long, and because the outcome depends upon it I set it out with some care.
a) The deceased died on 18th November 1990. His first wife, Rodah Muhonja Isigi, had predeceased him on 20th March 1984. He thereafter married Florah Muhalia, who survived him.
b) In 1991 Florah Muhalia Isigi petitioned for letters of administration at the High Court at Eldoret in Civil Suit No. 7 of 1991. Objection proceedings by Roselyne Agiza Isigi and Sammy Inguvu Isigi were dismissed and the grant issued to her on 4th September 1991.
c) On 29th September 1992 a certificate of confirmation was issued for the limited purpose of disposing of Kakamega Municipality Block 1/165 in order to repay a loan owed by the estate to Kenya Commercial Bank. The plot was sold. The 2001 court found that the proceeds were not applied to the loan but were used by Florah for her own benefit.
d) Thereafter the petitioner took no step to distribute. The objectors applied by chamber summons to compel her to account for the proceeds of Block 1/165. Directions were given that the parties proceed by viva voce evidence and that the estate be distributed.
e) The petitioner and her counsel, though served, did not attend. The court allowed the objectors to proceed ex parte. One witness, Sammy Inguvu Isigi, gave evidence.
f) On 30th November 2001 Nambuye J. (as she then was) delivered judgment identifying the beneficiaries and decreeing the distribution of the estate. Liberty to apply was reserved and each party was left to bear their own costs.
g) The cause was later transferred to Kakamega and renumbered Succession Cause No. 282 of 2005. On 18th May 2006 Florah applied for confirmation of the grant in terms of the 2001 judgment. She died on 4th March 2010 before that was concluded.
h) By application dated 19th March 2010 Sammy Inguvu Isigi sought to be substituted as administrator in her place and that the grant be amended and confirmed in terms of the judgment of 30th November 2001. That application proceeded ex parte and was allowed as prayed on 4th May 2011. An amended grant of letters of administration intestate issued to him under the hand of Kimaru J.
i) On 2nd June 2011 the administrator filed an affidavit of redistribution and confirmation sworn on 27th May 2011, by which he sought to redistribute the estate. Radcliffe Kirunga Isigi opposed it by affidavit sworn on 12th March 2012.
j) By a ruling delivered in July 2012, Thuranira Jaden J. declined to determine the matter. The learned Judge observed that no reasons for the proposed redistribution had been given and that it amounted to a review of the judgment to a large extent; that when the application came up only the administrator and Radcliffe Kirunga Isigi were present; that there were no affidavits of service on all beneficiaries on the record; and that the court could not conclusively determine the application without the involvement of the other beneficiaries, the proposed redistribution having far-reaching consequences. The Judge concluded that the grant had been confirmed in terms of the judgment and that, if it had become necessary to redistribute, all the beneficiaries should be served and participate in the exercise.
k) The cause was transferred to this station and renumbered Succession Cause No. 5 of 2021. The administrator states that he was directed by Musyoka J. on 21st September 2022 to take out a fresh summons for confirmation. The present Summons, dated 20th September 2022, followed.
l) The 2nd Protestor states that the cause was referred to court-annexed mediation and that a negative verdict was returned, the administrator not having disclosed all the property of the deceased. Mediation has therefore already been attempted and has failed.
THE APPLICATION AND THE PROTESTS
(a) The Summons for Confirmation
6. By the Summons dated 20th September 2022 the administrator seeks confirmation of the grant made to him on 4th May 2011, and that the costs of the application be costs in the cause. It is supported by his affidavit sworn the same day.
7. In that affidavit he deposes that the deceased was survived by nine children whom he names as Sammy Inguvu Isigi, Roseline Agiza Isigi, Ann Isigi, Humphrey Ndenga, Elizabeth Isigi, Ebby M. Isigi, Mary Isigi, Radcliffe
Kirunga Isigi and Humphrey Libese; and by one other dependant, Yamina
Manasseh Sasida. He lists the estate as comprising Kakamega/Losengeli/803, Plot No. 2 at Old Musasa Market, Kakamega/Kedoli/938, Plot No. 7 at Chavakali Market, Kakamega/Municipality/Block 1/191, L.R. Koibarak A 262 and Kakamega/Kedoli/1040.
8. At paragraph 7 he proposes that the shares be as follows: Kakamega/Losengeli/803 to Ann Isigi and Humphrey Ndenga in equal shares; Plot No. 2 at Old Musasa Market to Roseline Agiza Isigi; Kakamega/Kedoli/938 to Elizabeth Isigi and Ebby M. Isigi in equal shares;
Plot No. 7 at Chavakali Market to Mary Isigi;
Kakamega/Municipality/Block 1/191 to Sammy Inguvu Isigi; L.R. Koibarak A 262 as to 5 acres each to Radcliffe Kirunga Isigi, Sammy Inguvu Isigi and Roseline Agiza Isigi and 2.4 acres to Humphrey Libese; and Kakamega/Kedoli/1040 to Yamina Manasseh Sasida.
(b) The 1st Protestor's case
9. Radcliffe Kirunga Isigi protests by an affidavit of protest and counterproposal sworn on 20th June 2025 and by a statement dated 13th October 2025. He is the only son of the second house and was some two years old when his father died.
10. He contends that Plot L.R. Koibarak A 262 belonged to his late mother Florah Muhalia and should be expunged from the estate, relying on a certified copy of the register showing her as registered proprietor; that his mother sold 12 acres of it in exercise of her rights of ownership, so that the acreage the administrator proposes to distribute does not exist; and that he was born on that land, has developed it as his homestead, and settled a debt of some two million shillings left by his mother so that it should not be taken by creditors.
11. He contends that Plot No. 2 at Old Musasa Market is not available for distribution, his late mother having sold it to Universal Pentecostal Evangelism Church by an agreement dated 14th May 2008 for Kshs 800,000/=, and that the plot should be allocated to the Church.
12. He lays claim to the whole of Kakamega/Municipality/Block 1/191, on the grounds that at his father's death the administrator and the other siblings were adults who had already benefited from the deceased by being educated and taken abroad while he was a minor of two; that the administrator has collected rent from the property since 1991 without accounting; that he alone has cleared land rates running into millions and secured a waiver when the plot was marked for repossession on expiry of the lease; and that he is unemployed, still in school and has applied for admission to university.
13. He asserts that the administrator has omitted from the estate L.R. Kakamega/Losengeli/807, Plot No. 5 at Chavakali Market, Plot No. 3 at Sabatia Market, North Maragoli/Kedoli/935, Kakamega/Kedoli/957,
Lorry KUE 574, Lorry KWF 058, Toyota Stout KRJ 415, Land Cruiser KNX 890, Tractor KDY 433, a posho mill, Mercedes Benz KPB 273, Mercedes Benz KQP 040, shares in Kenya Breweries, shares in Andimi Company and the proceeds of an Alico life insurance policy received by the administrator on 9th July 1993.
14. He proposes that Kakamega/Losengeli/803 go to Ann Isigi, Humphrey Ndenga and Dennis Agoyi in equal shares; that Kakamega/Kedoli/938 go to the first house, namely Roseline, Elizabeth, Ebby and Sammy Isigi, with Duncan Agesa Isigi, son of the late Paul Isigi, to take a share as a grandson; that Plot No. 7 at Chavakali Market go equally to Mary Isigi and Humphrey Libese; and that L.R. Koibarak A 262 be shared equally between Roseline Agiza, Elizabeth, Ebby, Sammy and Humphrey Libese. He asks to be added as a co-administrator.
(c) The 2nd Protestor's case
15. Roseline Agiza Isigi protests by an affidavit in protest sworn on 15th April 2023 and a witness statement dated 30th April 2026. She says she is the first-born child of the deceased; that she was initially an administrator but was removed without her knowledge and for reasons never relayed to her; that upon the earlier confirmation only Florah Muhalia and Sammy Inguvu received any part of the estate while she and her siblings were allocated nothing; and that she was never informed of the substitution application.
16. She contends that the administrator has been selling the estate without authority; that the signatures on the consent to the schedule of distribution dated 24th October 2022 have been forged or lifted, some beneficiaries not being in the country; that there is no consent by the siblings; that mediation returned a negative verdict because the administrator had not disclosed all the property; that Koibarak A 262 was purchased by her father while her mother was alive and should be considered under her mother's house; that the chief's letter of 21st July
2011 shows that she was sidelined; that the administrator transferred Kakamega/Kedoli/957 to himself and sold it to a third party; and that the administrator intends to keep the homestead to himself. She asks that the grant be confirmed but that the parties receive equitable distributions.
(d) The administrator's reply
17. The administrator replies by a statement dated 5th May 2026, a further statement, and lists of documents. He says his mother died in 1984 and his father married Florah, then a shopkeeper in the family hardware business, in 1989. He names thirteen persons as surviving the deceased, of whom Grace Lumasia, Paul Agoi Isigi, Lydia Malikia Isigi, Jane Ingasiani Isigi, Nancy Agwona Isigi and Florah Muhalia are now deceased.
18. He says that Florah filed the cause secretly; that she obtained leave to sell Block 1/165 to discharge the Kenya Commercial Bank loan but consumed the proceeds; that he personally negotiated with the bank, paid the loan and had the auction of Kakamega/Kedoli/938, the family homestead, stopped and the charge discharged; and that he personally cleared a Standard Bank loan and two charges by the Commissioner of Income Tax, all secured on Block 1/191, which is why that plot should devolve to him.
19. As to the parcels said to have been omitted, he answers that Kakamega/Losengeli/807 belonged to his late mother Rodah Muhonja and was transferred to him and later sold; that North Maragoli/Kedoli/935 and Lorry KUE 574 belonged to the estate of his late brother Paul Agoi Isigi, administered in Eldoret Succession Cause No. 45 of 1993; that Toyota Stout KRJ 415 is registered to one Japheth Bulemi; that Mercedes Benz KQP 040 belonged to Paul's estate; that the Land Cruiser, tractor and Mercedes KPB 273 were sold as scrap and accounted for in the 2001 judgment; that Lorry KWF 058 was sold for Kshs 220,000/= and applied to the bank loan and tax arrears; and that he has no knowledge of Plot No. 5 Chavakali, Plot No. 3 Sabatia or Kakamega/Kedoli/957, and puts the 1st Protestor to proof.
20. He concedes that shares in Kenya Breweries and Andimi Investment Company came to his knowledge later and proposes that they be sold and the proceeds shared equally among all beneficiaries. He says that the Alico policy named himself and Paul Agoi Isigi as beneficiaries at Kshs 215,190.65 each, that he received his share, and that Florah wrongly claimed and was paid Paul's share.
21. As to Koibarak A 262, he says the parcel was part of the estate, as Florah herself admitted in her replying affidavit of 8th February 2008; that the registration of the whole parcel in her sole name on 30th October 2013 was fraudulent, she having died on 4th March 2010 and the amended grant having issued to him on 4th May 2011; and that the 1st Protestor has continued to sell portions of the parcel without the consent of the court or the beneficiaries. As to Plot No. 2 at Old Musasa Market, he relies on a letter from the County Government of Vihiga dated 14th August 2025 confirming that the plot still stands in the name of Lawrence K. Isigi, and says the 1st Protestor collects the rent from it.
22. He denies that Duncan Agesa Agoi is a son of the late Paul Agoi Isigi, and calls Patrick Musundi Isigi, a son of Paul, who states that he does not know the man, that no such child was presented at his father's burial or commemoration, that no objection was raised in the succession to Paul's estate, and that Paul's family lay no claim to this estate because Paul had already been provided for in his father's lifetime.
THE JUDGMENT OF 30TH NOVEMBER 2001
23. Because everything turns upon it, I set out what that judgment decided.
24. The court identified the beneficiaries of the first house as Roselyne Agiza, Elizabeth Isigi, Ebby Isigi, Ann Isigi, Lydia Isigi, Mary Isigi, Sammy Isigi, Jane Isigi (deceased, leaving two minor sons Humphrey Ndenga and Denis Agoyi, both expressly recognised as beneficiaries), Nancy Agu Ndana Isigi, Roselyne Agwona (a child born out of wedlock, expressly recognised) and Grace Lumasia. It identified the second house as comprising two units, Florah Muhalia Isigi and her minor son Radcliffe Kirunga.
25. Applying the guidelines in section 28 of the Act, the court found the distribution proposed by Sammy Inguvu Isigi to be fairly done, bearing in mind that Florah had sold Block 1/165 and used the proceeds herself, had sold 15 acres of Koibarak A 262 and used those proceeds herself, and had taken the insurance proceeds to her own benefit. The court then made two variations, in favour of Florah and her minor son. The distribution as decreed was:
i. Kakamega/Losengeli/803 (a shop and ten residential rooms) to Nancy Isigi and Humphrey Ndenga as tenants in common in equal shares;
ii. Kakamega/Kedoli/938 (six acres under tea) to Elizabeth, Ebby and Lydia Isigi, the three having repaid a loan of one million shillings secured on it;
iii. Plot No. 7 at Chavakali Market to Mary Isigi;
iv. Kakamega Town Block 1/191, then valued at Kshs 1.8 million, to be SOLD and the proceeds applied to the debts of the estate, namely a bank loan of Kshs 280,000/=, income tax of Kshs 113,000/=, land rates of Kshs 553,989.55, telephone bills of Kshs 24,138.85 and
Vihiga Municipality dues of Kshs 16,000/=;
v. Old Musasa Market Plot No. 5 to Roselyne Agwona and Roselyne
Agiza; vi. the plot at New Musasa Market, developed by Florah with three shops, to Florah Muhalia Isigi and Radcliffe Kirunga Isigi, to be held in trust and not to be sold, mortgaged or transferred without authority of the court and until the minor attained majority;
vii. Koibarak A 262, then 32 acres, as to 12 acres to Florah Muhalia and Radcliffe Kirunga (again in trust and subject to the same restraint),
5 acres to Grace Lumasia and 14 acres to Sammy Inguvu Isigi; viii. Block 1/165, the Alico proceeds and the disposals of the motor vehicles were dealt with as already having been accounted for or applied.
26. Liberty to apply was expressly reserved.
ISSUES FOR DETERMINATION
27. The issues that arise are:
i. whether, the grant having been confirmed in terms of the judgment of 30th November 2001, this court is functus officio;
ii. whether a summons for confirmation under section 71 may be used to substitute a distribution different from that already decreed;
iii. whether the proposed mode of distribution is in any event sustainable on the evidence;
iv. which of the disputed assets form part of the estate;
v. what directions are required as to accounts, representation and third parties; and
vi. who should administer the estate, and who should bear the costs.
THE LEGAL FRAMEWORK
28. Section 71(2) of the Act empowers the court, on an application for confirmation, to confirm the grant if satisfied that the grant was rightly made and that the applicant is administering the estate according to law, and requires the court to determine and specify the persons beneficially entitled and their respective shares. The proviso forbids confirmation in cases of intestacy until the court is satisfied as to the identities and shares of all persons beneficially entitled.
29. Section 74 permits rectification of “errors in names and descriptions, or in setting out the time and place of the deceased's death, or the purpose in a limited grant”. Its confines are narrow and have repeatedly been held not to extend to redistribution. As was put in Miscellaneous Succession Cause No. 30 of 2017 [2023] eKLR, a rectification is not a review, and no redistribution or adjustment of shares can be dealt with in an application for rectification.
30. Section 76 permits revocation or annulment of a grant, whether or not confirmed, at any time, on the grounds there specified, including at paragraph (e) that the grant has become useless and inoperative through subsequent circumstances. The remedy is discretionary.
31. Section 79 vests all the property of the deceased in the personal representative. Sections 82 and 83 define his powers and duties. Section 82(b)(ii) forbids the sale of immovable property before confirmation save with the leave of the court. Section 83 requires the personal representative to get in the assets, to pay the debts, to distribute in accordance with the confirmed grant, and — critically for this case — to produce to the court a full and accurate inventory of the assets and liabilities and a full and accurate account of the administration within six months of the grant, and to complete the administration within six months of confirmation.
32. Section 93(1) protects a transfer of an interest in property made to a purchaser by a person to whom representation has been granted, notwithstanding the subsequent revocation or variation of the representation. That protection extends to an interest validly acquired, not to one acquired through fraud or misrepresentation: Benson Manani Mahinye v Waiganagana A. Kendi [2016] eKLR; Kenneth Litiswa Asega v Alice Muhonja [2016] eKLR. Section 45 makes intermeddling with the estate of a deceased person without representation an offence.
33. Section 28 sets out the matters to which the court must have regard in making provision for a dependant, including the dependant's present and future means and needs, any advancement or gift made by the deceased in his lifetime, the dependant's conduct in relation to the deceased and the general circumstances of the case.
34. Finally, sections 107 to 109 of the Evidence Act place the burden of proving a fact upon the party who asserts it. A protestor who asserts that a particular parcel forms part of the estate must prove it; an administrator who asserts that it does not must equally answer the assertion with evidence.
ANALYSIS AND DETERMINATION
Issue (i): Is the court functus officio?
35. It was not argued, but I must satisfy myself of my own jurisdiction. On 4th May 2011 the grant was amended and confirmed in terms of the judgment of 30th November 2001. On one view that concluded the matter and this court has no further function.
36. I am satisfied that it did not, for two reasons. First, no account of a completed administration has ever been filed in this cause, by Florah Muhalia or by the present administrator. Where the account of a completed administration has not been filed, the administration remains alive and the court is not functus officio: In re Estate of Yawaya Shitanda Nyatati (Deceased), Succession Cause No. 88 of 2002. Section 83(g) and (h) impose that duty; it has never been discharged; the administration of this estate is not merely incomplete but has barely begun.
37. Secondly, the judgment of 30th November 2001 expressly reserved liberty to apply. Liberty to apply exists precisely so that a party may return to the court where supervening events make the working out of a judgment impracticable. That is what has happened here, and on a considerable scale.
Issue (ii): May a confirmation summons substitute a new distribution?
38. It cannot, and this disposes of the greater part of the Summons.
39. The judgment of 30th November 2001 determined who the beneficiaries were and what each was to take. It has never been appealed. It has never been reviewed. It has never been set aside. It binds every party to this cause, including the administrator, who was himself the sole witness at the hearing which produced it and whose proposals it substantially adopted.
40. Section 71 is the machinery by which an unconfirmed grant is confirmed and shares ascertained. It is not a mechanism for revisiting shares already ascertained by a judgment of this court. To confirm the present proposal would be to review the judgment of Nambuye J. in proceedings which are not review proceedings, without any of the grounds for review being pleaded or proved, and at the instance of a party who has never sought to appeal it. Section 74 offers no assistance: the proposal contains no error of name, description, date or purpose, but a wholesale reallocation of assets.
41. This is not a new observation in this cause. It is precisely what Thuranira Jaden J. told the administrator in July 2012, when the redistribution he then proposed was held to amount to a review of the judgment to a large extent, unsupported by any reasons. Fourteen years later the same course is attempted again, and the same answer must be given.
42. I should add that the direction said to have been given by Musyoka J. on
21st September 2022, that a fresh summons for confirmation be taken out, cannot bear the weight placed on it. A direction to regularise the pleadings so that the confirmation exercise could be revisited on notice to all beneficiaries — which is what Thuranira Jaden J. had required — is not a licence to depart from a subsisting judgment.
Issue (iii): Is the proposed distribution sustainable in any event?
43. Even were the objection of principle put aside, the proposal could not stand. It is instructive to set it beside the judgment:
Asset Judgment of
30.11.2001 Proposal of
20.9.2022
Kakamega/Losengeli/803 Nancy Isigi and Humphrey Ndenga, in equal shares Ann Isigi and
Humphrey Ndenga, in equal shares
Kakamega/Kedoli/938 Elizabeth, Ebby and Lydia Isigi (who repaid the loan charged on it) Elizabeth Isigi and Ebby M. Isigi, in equal shares
Plot No. 7, Chavakali
Market Mary Isigi Mary Isigi
Kakamega Municipality
Block 1/191 To be SOLD and the proceeds applied to the debts of the estate Sammy Inguvu Isigi absolutely
Old Musasa Market plot Plot No. 5 to Roselyne
Agwona and Roselyne
Agiza Plot No. 2 to Roseline
Agiza alone
New Musasa Market plot
(3 shops) Florah Muhalia and Radcliffe Kirunga, in trust; no sale or transfer without leave Omitted from the schedule altogether
Asset Judgment of
30.11.2001 Proposal of
20.9.2022
L.R. Koibarak A 262 32 acres: Florah and
Radcliffe 12; Grace
Lumasia 5; Sammy
14 17.4 acres: Radcliffe 5;
Sammy 5; Roseline
Agiza 5; Humphrey
Libese 2.4
Kakamega/Kedoli/1040 Not dealt with Yamina Manasseh
Sasida
44. Four features of that comparison are fatal. First, beneficiaries decreed by the judgment have simply been dropped. Nancy Agwona Isigi disappears from Losengeli/803; Lydia Malikia Isigi from Kedoli/938; Grace Lumasia from Koibarak A 262; Roselyne Agwona from the Musasa plot; Florah Muhalia from both Koibarak and the New Musasa plot; and Denis Agoyi, expressly recognised in 2001, appears nowhere at all.
45. Each of those persons, save Denis Agoyi, is now dead. But every one of them survived the deceased. Their shares vested in them upon his death in 1990 and, upon their own deaths, formed part of their own estates. They do not fall back into this estate for the administrator to reallocate as he sees fit, and they cannot be extinguished by omission from a schedule. Each such estate must be represented before those shares can be dealt with.
46. Secondly, an asset decreed by the judgment has vanished from the schedule altogether. The plot at New Musasa Market, developed with three shops, was given to Florah Muhalia and Radcliffe Kirunga upon an express trust and an express restraint on alienation. It is not listed among the assets in the Summons. No explanation is offered.
47. Thirdly, and most seriously, Kakamega Municipality Block 1/191 — which the court directed be sold for the benefit of the estate's creditors — is proposed to the administrator himself, absolutely. He justifies this on the ground that he discharged the estate's liabilities from his own pocket.
I shall assume in his favour that he did, and the documents he has produced go some way to supporting it.
48. The claim nonetheless fails as a matter of law. An administrator who applies his own money to the debts of the estate is entitled to be indemnified and reimbursed out of the estate. That is the effect of section 83(c) and of the retention and reimbursement permitted by section 93(2). What he is not entitled to do is to convert a right of indemnity into a right of ownership by appropriating to himself the very asset which the court directed be realised for the creditors' benefit. His remedy is a claim in account, quantified and vouched, ranking as an expense of administration.
It is not a conveyance.
49. The 1st Protestor's rival claim to the whole of Block 1/191 fares no better. That he was a two-year-old at his father's death, that others were educated abroad, that he has paid rates and needs funds for university, are matters relevant under section 28(b), (c) and (d). They are not a basis for taking an asset which a judgment has directed be sold, nor for displacing that judgment. I note also that his own evidence of paying rates relates to 2025 alone, while the administrator produces a bundle of rate payments and tax settlements spanning many years.
50. There is a further and decisive obstacle common to both claims. Rent has been collected from Block 1/191 continuously — by Florah Muhalia from 1991 to 2010 and by the administrator from 2010 to date — and by the administrator's own account he has applied it to repairs, rates, lease renewal, liabilities and school fees for his late sisters' children. Not a shilling of that income has ever been accounted for to this court. Over some thirty-five years, on a fully developed commercial property in the centre of Kakamega town, that income may well exceed the liabilities said to have been discharged. Until the account is taken, this court simply cannot know whether the estate owes the administrator anything at all, or whether he owes the estate.
51. Fourthly, the schedule of distribution dated 24th October 2022 is challenged by the 2nd Protestor as bearing signatures forged or lifted onto the document, some of the beneficiaries being out of the country. An allegation of forgery is a serious one which must be strictly proved and she has produced nothing to prove it, so I make no finding upon it. But the consent cannot be relied upon as curing the defects I have identified. A consent among some beneficiaries cannot vary a judgment of the court, and it plainly cannot bind those beneficiaries and estates which are not represented at all.
Issue (iv): Which assets form part of the estate?
52. A number of parcels are in contest. I deal with them shortly, and only so far as the present material permits.
53. L.R. Koibarak A 262 (now Kemeloi/Koibarak A/262). I reject the 1st Protestor's contention that this parcel belonged exclusively to his late mother and should be expunged. It is contradicted by the judgment of 2001, which treated it as an estate asset and distributed it; by the objection proceedings before the Land Adjudication Officer on 7th February 1991, in which the 2nd Protestor recorded that the parcel had been owned by her late father; by the chief's letter of 21st July 2011, which states that the land belo
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M/S Onsando Getanda & Co. Advocates
M/S M. Korongi & Co. Advocates M/S Amasakha & Co. Advocates
INTRODUCTION AND NATURE OF THE CASE
1. Lawrence Kirunga Isigi died intestate on 18th November 1990 at Kakamega Hospital. Thirty-six years later his estate remains undistributed. In that time his widow, four of his daughters and one of his sons have themselves died. A judgment determining how his estate was to be divided was delivered on 30th November 2001; it has never been executed. The file was at one stage lost for some six years and, when traced, was found to have been interfered with. That is the melancholy background against which this judgment is delivered.
2. Before me is a Summons for Confirmation of Grant dated 20th September 2022, brought under section 71(2) of the Law of Succession Act, Cap 160, and Rule 40(2) of the Probate and Administration Rules, by Sammy Inguvu
Isigi, a son of the deceased and the present administrator. It is protested
by Radcliffe Kirunga Isigi, a son of the deceased by his second house, and by Roseline Agiza Isigi, a daughter by the first house.
3. The essential question is a narrow one of law with wide consequences. A judgment determining the distribution of this estate already exists and has never been appealed, reviewed or set aside. The administrator now asks this court to confirm a materially different distribution. Whether he may do so by way of a summons for confirmation is the question upon which this judgment turns.
4. I record at the outset that the cause has been variously described in the documents filed as Succession Cause No. 5 of 2021, No. 5 of 2022, No. 5 of 2005 and No. 282 of 2005, and the pleadings of the 2nd Protestor are headed at Kakamega although the cause is now at Vihiga. The correct description, which I adopt, is that in the amended grant and in the Summons: Vihiga High Court Succession Cause No. 5 of 2021, formerly Kakamega High Court Succession Cause No. 282 of 2005. The Deputy Registrar will ensure the file and all future pleadings bear that description.
THE COURSE OF THE PROCEEDINGS
5. The procedural history is long, and because the outcome depends upon it I set it out with some care.
a) The deceased died on 18th November 1990. His first wife, Rodah Muhonja Isigi, had predeceased him on 20th March 1984. He thereafter married Florah Muhalia, who survived him.
b) In 1991 Florah Muhalia Isigi petitioned for letters of administration at the High Court at Eldoret in Civil Suit No. 7 of 1991. Objection proceedings by Roselyne Agiza Isigi and Sammy Inguvu Isigi were dismissed and the grant issued to her on 4th September 1991.
c) On 29th September 1992 a certificate of confirmation was issued for the limited purpose of disposing of Kakamega Municipality Block 1/165 in order to repay a loan owed by the estate to Kenya Commercial Bank. The plot was sold. The 2001 court found that the proceeds were not applied to the loan but were used by Florah for her own benefit.
d) Thereafter the petitioner took no step to distribute. The objectors applied by chamber summons to compel her to account for the proceeds of Block 1/165. Directions were given that the parties proceed by viva voce evidence and that the estate be distributed.
e) The petitioner and her counsel, though served, did not attend. The court allowed the objectors to proceed ex parte. One witness, Sammy Inguvu Isigi, gave evidence.
f) On 30th November 2001 Nambuye J. (as she then was) delivered judgment identifying the beneficiaries and decreeing the distribution of the estate. Liberty to apply was reserved and each party was left to bear their own costs.
g) The cause was later transferred to Kakamega and renumbered Succession Cause No. 282 of 2005. On 18th May 2006 Florah applied for confirmation of the grant in terms of the 2001 judgment. She died on 4th March 2010 before that was concluded.
h) By application dated 19th March 2010 Sammy Inguvu Isigi sought to be substituted as administrator in her place and that the grant be amended and confirmed in terms of the judgment of 30th November 2001. That application proceeded ex parte and was allowed as prayed on 4th May 2011. An amended grant of letters of administration intestate issued to him under the hand of Kimaru J.
i) On 2nd June 2011 the administrator filed an affidavit of redistribution and confirmation sworn on 27th May 2011, by which he sought to redistribute the estate. Radcliffe Kirunga Isigi opposed it by affidavit sworn on 12th March 2012.
j) By a ruling delivered in July 2012, Thuranira Jaden J. declined to determine the matter. The learned Judge observed that no reasons for the proposed redistribution had been given and that it amounted to a review of the judgment to a large extent; that when the application came up only the administrator and Radcliffe Kirunga Isigi were present; that there were no affidavits of service on all beneficiaries on the record; and that the court could not conclusively determine the application without the involvement of the other beneficiaries, the proposed redistribution having far-reaching consequences. The Judge concluded that the grant had been confirmed in terms of the judgment and that, if it had become necessary to redistribute, all the beneficiaries should be served and participate in the exercise.
k) The cause was transferred to this station and renumbered Succession Cause No. 5 of 2021. The administrator states that he was directed by Musyoka J. on 21st September 2022 to take out a fresh summons for confirmation. The present Summons, dated 20th September 2022, followed.
l) The 2nd Protestor states that the cause was referred to court-annexed mediation and that a negative verdict was returned, the administrator not having disclosed all the property of the deceased. Mediation has therefore already been attempted and has failed.
THE APPLICATION AND THE PROTESTS
(a) The Summons for Confirmation
6. By the Summons dated 20th September 2022 the administrator seeks confirmation of the grant made to him on 4th May 2011, and that the costs of the application be costs in the cause. It is supported by his affidavit sworn the same day.
7. In that affidavit he deposes that the deceased was survived by nine children whom he names as Sammy Inguvu Isigi, Roseline Agiza Isigi, Ann Isigi, Humphrey Ndenga, Elizabeth Isigi, Ebby M. Isigi, Mary Isigi, Radcliffe
Kirunga Isigi and Humphrey Libese; and by one other dependant, Yamina
Manasseh Sasida. He lists the estate as comprising Kakamega/Losengeli/803, Plot No. 2 at Old Musasa Market, Kakamega/Kedoli/938, Plot No. 7 at Chavakali Market, Kakamega/Municipality/Block 1/191, L.R. Koibarak A 262 and Kakamega/Kedoli/1040.
8. At paragraph 7 he proposes that the shares be as follows: Kakamega/Losengeli/803 to Ann Isigi and Humphrey Ndenga in equal shares; Plot No. 2 at Old Musasa Market to Roseline Agiza Isigi; Kakamega/Kedoli/938 to Elizabeth Isigi and Ebby M. Isigi in equal shares;
Plot No. 7 at Chavakali Market to Mary Isigi;
Kakamega/Municipality/Block 1/191 to Sammy Inguvu Isigi; L.R. Koibarak A 262 as to 5 acres each to Radcliffe Kirunga Isigi, Sammy Inguvu Isigi and Roseline Agiza Isigi and 2.4 acres to Humphrey Libese; and Kakamega/Kedoli/1040 to Yamina Manasseh Sasida.
(b) The 1st Protestor's case
9. Radcliffe Kirunga Isigi protests by an affidavit of protest and counterproposal sworn on 20th June 2025 and by a statement dated 13th October 2025. He is the only son of the second house and was some two years old when his father died.
10. He contends that Plot L.R. Koibarak A 262 belonged to his late mother Florah Muhalia and should be expunged from the estate, relying on a certified copy of the register showing her as registered proprietor; that his mother sold 12 acres of it in exercise of her rights of ownership, so that the acreage the administrator proposes to distribute does not exist; and that he was born on that land, has developed it as his homestead, and settled a debt of some two million shillings left by his mother so that it should not be taken by creditors.
11. He contends that Plot No. 2 at Old Musasa Market is not available for distribution, his late mother having sold it to Universal Pentecostal Evangelism Church by an agreement dated 14th May 2008 for Kshs 800,000/=, and that the plot should be allocated to the Church.
12. He lays claim to the whole of Kakamega/Municipality/Block 1/191, on the grounds that at his father's death the administrator and the other siblings were adults who had already benefited from the deceased by being educated and taken abroad while he was a minor of two; that the administrator has collected rent from the property since 1991 without accounting; that he alone has cleared land rates running into millions and secured a waiver when the plot was marked for repossession on expiry of the lease; and that he is unemployed, still in school and has applied for admission to university.
13. He asserts that the administrator has omitted from the estate L.R. Kakamega/Losengeli/807, Plot No. 5 at Chavakali Market, Plot No. 3 at Sabatia Market, North Maragoli/Kedoli/935, Kakamega/Kedoli/957,
Lorry KUE 574, Lorry KWF 058, Toyota Stout KRJ 415, Land Cruiser KNX 890, Tractor KDY 433, a posho mill, Mercedes Benz KPB 273, Mercedes Benz KQP 040, shares in Kenya Breweries, shares in Andimi Company and the proceeds of an Alico life insurance policy received by the administrator on 9th July 1993.
14. He proposes that Kakamega/Losengeli/803 go to Ann Isigi, Humphrey Ndenga and Dennis Agoyi in equal shares; that Kakamega/Kedoli/938 go to the first house, namely Roseline, Elizabeth, Ebby and Sammy Isigi, with Duncan Agesa Isigi, son of the late Paul Isigi, to take a share as a grandson; that Plot No. 7 at Chavakali Market go equally to Mary Isigi and Humphrey Libese; and that L.R. Koibarak A 262 be shared equally between Roseline Agiza, Elizabeth, Ebby, Sammy and Humphrey Libese. He asks to be added as a co-administrator.
(c) The 2nd Protestor's case
15. Roseline Agiza Isigi protests by an affidavit in protest sworn on 15th April 2023 and a witness statement dated 30th April 2026. She says she is the first-born child of the deceased; that she was initially an administrator but was removed without her knowledge and for reasons never relayed to her; that upon the earlier confirmation only Florah Muhalia and Sammy Inguvu received any part of the estate while she and her siblings were allocated nothing; and that she was never informed of the substitution application.
16. She contends that the administrator has been selling the estate without authority; that the signatures on the consent to the schedule of distribution dated 24th October 2022 have been forged or lifted, some beneficiaries not being in the country; that there is no consent by the siblings; that mediation returned a negative verdict because the administrator had not disclosed all the property; that Koibarak A 262 was purchased by her father while her mother was alive and should be considered under her mother's house; that the chief's letter of 21st July
2011 shows that she was sidelined; that the administrator transferred Kakamega/Kedoli/957 to himself and sold it to a third party; and that the administrator intends to keep the homestead to himself. She asks that the grant be confirmed but that the parties receive equitable distributions.
(d) The administrator's reply
17. The administrator replies by a statement dated 5th May 2026, a further statement, and lists of documents. He says his mother died in 1984 and his father married Florah, then a shopkeeper in the family hardware business, in 1989. He names thirteen persons as surviving the deceased, of whom Grace Lumasia, Paul Agoi Isigi, Lydia Malikia Isigi, Jane Ingasiani Isigi, Nancy Agwona Isigi and Florah Muhalia are now deceased.
18. He says that Florah filed the cause secretly; that she obtained leave to sell Block 1/165 to discharge the Kenya Commercial Bank loan but consumed the proceeds; that he personally negotiated with the bank, paid the loan and had the auction of Kakamega/Kedoli/938, the family homestead, stopped and the charge discharged; and that he personally cleared a Standard Bank loan and two charges by the Commissioner of Income Tax, all secured on Block 1/191, which is why that plot should devolve to him.
19. As to the parcels said to have been omitted, he answers that Kakamega/Losengeli/807 belonged to his late mother Rodah Muhonja and was transferred to him and later sold; that North Maragoli/Kedoli/935 and Lorry KUE 574 belonged to the estate of his late brother Paul Agoi Isigi, administered in Eldoret Succession Cause No. 45 of 1993; that Toyota Stout KRJ 415 is registered to one Japheth Bulemi; that Mercedes Benz KQP 040 belonged to Paul's estate; that the Land Cruiser, tractor and Mercedes KPB 273 were sold as scrap and accounted for in the 2001 judgment; that Lorry KWF 058 was sold for Kshs 220,000/= and applied to the bank loan and tax arrears; and that he has no knowledge of Plot No. 5 Chavakali, Plot No. 3 Sabatia or Kakamega/Kedoli/957, and puts the 1st Protestor to proof.
20. He concedes that shares in Kenya Breweries and Andimi Investment Company came to his knowledge later and proposes that they be sold and the proceeds shared equally among all beneficiaries. He says that the Alico policy named himself and Paul Agoi Isigi as beneficiaries at Kshs 215,190.65 each, that he received his share, and that Florah wrongly claimed and was paid Paul's share.
21. As to Koibarak A 262, he says the parcel was part of the estate, as Florah herself admitted in her replying affidavit of 8th February 2008; that the registration of the whole parcel in her sole name on 30th October 2013 was fraudulent, she having died on 4th March 2010 and the amended grant having issued to him on 4th May 2011; and that the 1st Protestor has continued to sell portions of the parcel without the consent of the court or the beneficiaries. As to Plot No. 2 at Old Musasa Market, he relies on a letter from the County Government of Vihiga dated 14th August 2025 confirming that the plot still stands in the name of Lawrence K. Isigi, and says the 1st Protestor collects the rent from it.
22. He denies that Duncan Agesa Agoi is a son of the late Paul Agoi Isigi, and calls Patrick Musundi Isigi, a son of Paul, who states that he does not know the man, that no such child was presented at his father's burial or commemoration, that no objection was raised in the succession to Paul's estate, and that Paul's family lay no claim to this estate because Paul had already been provided for in his father's lifetime.
THE JUDGMENT OF 30TH NOVEMBER 2001
23. Because everything turns upon it, I set out what that judgment decided.
24. The court identified the beneficiaries of the first house as Roselyne Agiza, Elizabeth Isigi, Ebby Isigi, Ann Isigi, Lydia Isigi, Mary Isigi, Sammy Isigi, Jane Isigi (deceased, leaving two minor sons Humphrey Ndenga and Denis Agoyi, both expressly recognised as beneficiaries), Nancy Agu Ndana Isigi, Roselyne Agwona (a child born out of wedlock, expressly recognised) and Grace Lumasia. It identified the second house as comprising two units, Florah Muhalia Isigi and her minor son Radcliffe Kirunga.
25. Applying the guidelines in section 28 of the Act, the court found the distribution proposed by Sammy Inguvu Isigi to be fairly done, bearing in mind that Florah had sold Block 1/165 and used the proceeds herself, had sold 15 acres of Koibarak A 262 and used those proceeds herself, and had taken the insurance proceeds to her own benefit. The court then made two variations, in favour of Florah and her minor son. The distribution as decreed was:
i. Kakamega/Losengeli/803 (a shop and ten residential rooms) to Nancy Isigi and Humphrey Ndenga as tenants in common in equal shares;
ii. Kakamega/Kedoli/938 (six acres under tea) to Elizabeth, Ebby and Lydia Isigi, the three having repaid a loan of one million shillings secured on it;
iii. Plot No. 7 at Chavakali Market to Mary Isigi;
iv. Kakamega Town Block 1/191, then valued at Kshs 1.8 million, to be SOLD and the proceeds applied to the debts of the estate, namely a bank loan of Kshs 280,000/=, income tax of Kshs 113,000/=, land rates of Kshs 553,989.55, telephone bills of Kshs 24,138.85 and
Vihiga Municipality dues of Kshs 16,000/=;
v. Old Musasa Market Plot No. 5 to Roselyne Agwona and Roselyne
Agiza; vi. the plot at New Musasa Market, developed by Florah with three shops, to Florah Muhalia Isigi and Radcliffe Kirunga Isigi, to be held in trust and not to be sold, mortgaged or transferred without authority of the court and until the minor attained majority;
vii. Koibarak A 262, then 32 acres, as to 12 acres to Florah Muhalia and Radcliffe Kirunga (again in trust and subject to the same restraint),
5 acres to Grace Lumasia and 14 acres to Sammy Inguvu Isigi; viii. Block 1/165, the Alico proceeds and the disposals of the motor vehicles were dealt with as already having been accounted for or applied.
26. Liberty to apply was expressly reserved.
ISSUES FOR DETERMINATION
27. The issues that arise are:
i. whether, the grant having been confirmed in terms of the judgment of 30th November 2001, this court is functus officio;
ii. whether a summons for confirmation under section 71 may be used to substitute a distribution different from that already decreed;
iii. whether the proposed mode of distribution is in any event sustainable on the evidence;
iv. which of the disputed assets form part of the estate;
v. what directions are required as to accounts, representation and third parties; and
vi. who should administer the estate, and who should bear the costs.
THE LEGAL FRAMEWORK
28. Section 71(2) of the Act empowers the court, on an application for confirmation, to confirm the grant if satisfied that the grant was rightly made and that the applicant is administering the estate according to law, and requires the court to determine and specify the persons beneficially entitled and their respective shares. The proviso forbids confirmation in cases of intestacy until the court is satisfied as to the identities and shares of all persons beneficially entitled.
29. Section 74 permits rectification of “errors in names and descriptions, or in setting out the time and place of the deceased's death, or the purpose in a limited grant”. Its confines are narrow and have repeatedly been held not to extend to redistribution. As was put in Miscellaneous Succession Cause No. 30 of 2017 [2023] eKLR, a rectification is not a review, and no redistribution or adjustment of shares can be dealt with in an application for rectification.
30. Section 76 permits revocation or annulment of a grant, whether or not confirmed, at any time, on the grounds there specified, including at paragraph (e) that the grant has become useless and inoperative through subsequent circumstances. The remedy is discretionary.
31. Section 79 vests all the property of the deceased in the personal representative. Sections 82 and 83 define his powers and duties. Section 82(b)(ii) forbids the sale of immovable property before confirmation save with the leave of the court. Section 83 requires the personal representative to get in the assets, to pay the debts, to distribute in accordance with the confirmed grant, and — critically for this case — to produce to the court a full and accurate inventory of the assets and liabilities and a full and accurate account of the administration within six months of the grant, and to complete the administration within six months of confirmation.
32. Section 93(1) protects a transfer of an interest in property made to a purchaser by a person to whom representation has been granted, notwithstanding the subsequent revocation or variation of the representation. That protection extends to an interest validly acquired, not to one acquired through fraud or misrepresentation: Benson Manani Mahinye v Waiganagana A. Kendi [2016] eKLR; Kenneth Litiswa Asega v Alice Muhonja [2016] eKLR. Section 45 makes intermeddling with the estate of a deceased person without representation an offence.
33. Section 28 sets out the matters to which the court must have regard in making provision for a dependant, including the dependant's present and future means and needs, any advancement or gift made by the deceased in his lifetime, the dependant's conduct in relation to the deceased and the general circumstances of the case.
34. Finally, sections 107 to 109 of the Evidence Act place the burden of proving a fact upon the party who asserts it. A protestor who asserts that a particular parcel forms part of the estate must prove it; an administrator who asserts that it does not must equally answer the assertion with evidence.
ANALYSIS AND DETERMINATION
Issue (i): Is the court functus officio?
35. It was not argued, but I must satisfy myself of my own jurisdiction. On 4th May 2011 the grant was amended and confirmed in terms of the judgment of 30th November 2001. On one view that concluded the matter and this court has no further function.
36. I am satisfied that it did not, for two reasons. First, no account of a completed administration has ever been filed in this cause, by Florah Muhalia or by the present administrator. Where the account of a completed administration has not been filed, the administration remains alive and the court is not functus officio: In re Estate of Yawaya Shitanda Nyatati (Deceased), Succession Cause No. 88 of 2002. Section 83(g) and (h) impose that duty; it has never been discharged; the administration of this estate is not merely incomplete but has barely begun.
37. Secondly, the judgment of 30th November 2001 expressly reserved liberty to apply. Liberty to apply exists precisely so that a party may return to the court where supervening events make the working out of a judgment impracticable. That is what has happened here, and on a considerable scale.
Issue (ii): May a confirmation summons substitute a new distribution?
38. It cannot, and this disposes of the greater part of the Summons.
39. The judgment of 30th November 2001 determined who the beneficiaries were and what each was to take. It has never been appealed. It has never been reviewed. It has never been set aside. It binds every party to this cause, including the administrator, who was himself the sole witness at the hearing which produced it and whose proposals it substantially adopted.
40. Section 71 is the machinery by which an unconfirmed grant is confirmed and shares ascertained. It is not a mechanism for revisiting shares already ascertained by a judgment of this court. To confirm the present proposal would be to review the judgment of Nambuye J. in proceedings which are not review proceedings, without any of the grounds for review being pleaded or proved, and at the instance of a party who has never sought to appeal it. Section 74 offers no assistance: the proposal contains no error of name, description, date or purpose, but a wholesale reallocation of assets.
41. This is not a new observation in this cause. It is precisely what Thuranira Jaden J. told the administrator in July 2012, when the redistribution he then proposed was held to amount to a review of the judgment to a large extent, unsupported by any reasons. Fourteen years later the same course is attempted again, and the same answer must be given.
42. I should add that the direction said to have been given by Musyoka J. on
21st September 2022, that a fresh summons for confirmation be taken out, cannot bear the weight placed on it. A direction to regularise the pleadings so that the confirmation exercise could be revisited on notice to all beneficiaries — which is what Thuranira Jaden J. had required — is not a licence to depart from a subsisting judgment.
Issue (iii): Is the proposed distribution sustainable in any event?
43. Even were the objection of principle put aside, the proposal could not stand. It is instructive to set it beside the judgment:
Asset Judgment of
30.11.2001 Proposal of
20.9.2022
Kakamega/Losengeli/803 Nancy Isigi and Humphrey Ndenga, in equal shares Ann Isigi and
Humphrey Ndenga, in equal shares
Kakamega/Kedoli/938 Elizabeth, Ebby and Lydia Isigi (who repaid the loan charged on it) Elizabeth Isigi and Ebby M. Isigi, in equal shares
Plot No. 7, Chavakali
Market Mary Isigi Mary Isigi
Kakamega Municipality
Block 1/191 To be SOLD and the proceeds applied to the debts of the estate Sammy Inguvu Isigi absolutely
Old Musasa Market plot Plot No. 5 to Roselyne
Agwona and Roselyne
Agiza Plot No. 2 to Roseline
Agiza alone
New Musasa Market plot
(3 shops) Florah Muhalia and Radcliffe Kirunga, in trust; no sale or transfer without leave Omitted from the schedule altogether
Asset Judgment of
30.11.2001 Proposal of
20.9.2022
L.R. Koibarak A 262 32 acres: Florah and
Radcliffe 12; Grace
Lumasia 5; Sammy
14 17.4 acres: Radcliffe 5;
Sammy 5; Roseline
Agiza 5; Humphrey
Libese 2.4
Kakamega/Kedoli/1040 Not dealt with Yamina Manasseh
Sasida
44. Four features of that comparison are fatal. First, beneficiaries decreed by the judgment have simply been dropped. Nancy Agwona Isigi disappears from Losengeli/803; Lydia Malikia Isigi from Kedoli/938; Grace Lumasia from Koibarak A 262; Roselyne Agwona from the Musasa plot; Florah Muhalia from both Koibarak and the New Musasa plot; and Denis Agoyi, expressly recognised in 2001, appears nowhere at all.
45. Each of those persons, save Denis Agoyi, is now dead. But every one of them survived the deceased. Their shares vested in them upon his death in 1990 and, upon their own deaths, formed part of their own estates. They do not fall back into this estate for the administrator to reallocate as he sees fit, and they cannot be extinguished by omission from a schedule. Each such estate must be represented before those shares can be dealt with.
46. Secondly, an asset decreed by the judgment has vanished from the schedule altogether. The plot at New Musasa Market, developed with three shops, was given to Florah Muhalia and Radcliffe Kirunga upon an express trust and an express restraint on alienation. It is not listed among the assets in the Summons. No explanation is offered.
47. Thirdly, and most seriously, Kakamega Municipality Block 1/191 — which the court directed be sold for the benefit of the estate's creditors — is proposed to the administrator himself, absolutely. He justifies this on the ground that he discharged the estate's liabilities from his own pocket.
I shall assume in his favour that he did, and the documents he has produced go some way to supporting it.
48. The claim nonetheless fails as a matter of law. An administrator who applies his own money to the debts of the estate is entitled to be indemnified and reimbursed out of the estate. That is the effect of section 83(c) and of the retention and reimbursement permitted by section 93(2). What he is not entitled to do is to convert a right of indemnity into a right of ownership by appropriating to himself the very asset which the court directed be realised for the creditors' benefit. His remedy is a claim in account, quantified and vouched, ranking as an expense of administration.
It is not a conveyance.
49. The 1st Protestor's rival claim to the whole of Block 1/191 fares no better. That he was a two-year-old at his father's death, that others were educated abroad, that he has paid rates and needs funds for university, are matters relevant under section 28(b), (c) and (d). They are not a basis for taking an asset which a judgment has directed be sold, nor for displacing that judgment. I note also that his own evidence of paying rates relates to 2025 alone, while the administrator produces a bundle of rate payments and tax settlements spanning many years.
50. There is a further and decisive obstacle common to both claims. Rent has been collected from Block 1/191 continuously — by Florah Muhalia from 1991 to 2010 and by the administrator from 2010 to date — and by the administrator's own account he has applied it to repairs, rates, lease renewal, liabilities and school fees for his late sisters' children. Not a shilling of that income has ever been accounted for to this court. Over some thirty-five years, on a fully developed commercial property in the centre of Kakamega town, that income may well exceed the liabilities said to have been discharged. Until the account is taken, this court simply cannot know whether the estate owes the administrator anything at all, or whether he owes the estate.
51. Fourthly, the schedule of distribution dated 24th October 2022 is challenged by the 2nd Protestor as bearing signatures forged or lifted onto the document, some of the beneficiaries being out of the country. An allegation of forgery is a serious one which must be strictly proved and she has produced nothing to prove it, so I make no finding upon it. But the consent cannot be relied upon as curing the defects I have identified. A consent among some beneficiaries cannot vary a judgment of the court, and it plainly cannot bind those beneficiaries and estates which are not represented at all.
Issue (iv): Which assets form part of the estate?
52. A number of parcels are in contest. I deal with them shortly, and only so far as the present material permits.
53. L.R. Koibarak A 262 (now Kemeloi/Koibarak A/262). I reject the 1st Protestor's contention that this parcel belonged exclusively to his late mother and should be expunged. It is contradicted by the judgment of 2001, which treated it as an estate asset and distributed it; by the objection proceedings before the Land Adjudication Officer on 7th February 1991, in which the 2nd Protestor recorded that the parcel had been owned by her late father; by the chief's letter of 21st July 2011, which states that the land belo
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