Francis Binayo v Esnas Kamonya Mutie

4. She contended that the parcel number Nyang’ori/Gamalenga/531 measuring 0.10 Ha which formed part of the estate of the deceased herein had since been transferred to her Co-Administrator, the 1st Administrator herein under unclear circumstances and notwithstanding the existence of a caution lodged by their late sister. She further stated that although there was no dispute to ownership of Plots Number 45 Serem, 63 and 193 Phase 2 at the demise of the deceased, there were attempts to transfer the same to the 1st Administrator hence she preferred that the same be shared equally. 5. The matter proceeded through viva voce evidence. The 1st Administrator’s Written Submissions were dated and filed on 23rd July 2025 while those of the 2nd Administrator were dated 3rd October 2025 and filed on 5th October 2025. This Ruling is therefore based on the viva voche evidence and the said Written Submissions which both parties relied on in their entirety. Legal Analysis 6. After carefully analysing the Summons for Confirmation of Grants, the evidence on record and parties’ Written Submissions, this court was of the view that the issues placed before it for determination were as follows:a. Whether the parcels Nyangori/Gamalenga/531, Plot No 45 Serem Market, Plot No 63 Serem Market and No 193/2 situated at Kakamega Site Service formed part of the estate of the deceased; b. Which mode of distribution between the two (2) modes of distribution proposed by the parties herein was equitable. 7. The 1st Administrator submitted that the Plot 45 Serem Market should devolve to him entirely as reimbursement because he personally and solely paid off loans which had been obtained by his late father and secured by the title deed of the said parcel and that for more than thirty (30) years he had been deprived the use of this parcel by the 2nd Administrator. 8. To buttress his point, he relied on the case of Re Estate of Festo Lugadiru Abukira (Deceased) [2019]eKLR where it was held that where a child assisted a parent to settle debts and liabilities encumbering a property, the property in question still remained part of the estate of the deceased and the child could only claim reimbursement. 9. He contended that he was the surviving child of the deceased together with his mother the late Esther Tam Binayo and was well acquainted with the facts of this matter. He asserted that the deceased passed away on 30th November 1993 while the wife died on 3rd July 1997. He added that both were domiciled in Kenya. 10. He further submitted that the deceased had ten (10) children seven (7) of whom had since passed away and, therefore, the only surviving children were Catherine Chesi, the 2nd Administrator and himself. He pointed out that at the time of his death, the deceased owned Plot No 45 Serem Market comprising of nine (9) business units and LR Nyangori/Banja/628 which was the family home and which parcel was passed to the deceased’s wife through succession and was currently under separate succession proceedings. 11. He was categorical that LR Nyangori/Gamalenga/531, Plot No 63 Serem and Plot No 193/2 were transferred to him by the deceased through a sale, legally minuted, before the Kakamega Municipal Council under RMCC No 830 of 1984 and fully settled by him by clearing the arrears with the National Housing Corporation. He added that the deceased had accumulated substantial loans from various institutions including ICDC, where two (2) loans amounting to over Kshs 40,000/= secured https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/625/eng@2026-01-27 2

page 2 of 9

against LR Nyangori/Banja/628 and private lenders and banks including Citibank and Bank of Montreal. He added that the Plot No 45 Serem was used as a security for loans totalling over Kshs 29,831.70 as of 1986. He pointed out that the said loans resulted in the near auction of family properties including the homestead. 12. It was his contention that faced with a threat of auction, he took the responsibility out of moral obligation to repay all outstanding loans by first communicating with the governmental officials and placed cautions to protect the properties. He said that he then left Kenya to work and study abroad under difficult conditions to raise funds and clear the debts. 13. He asserted that a mutual family agreement was reached in 1993 whereby he would take over Plot No 45 Serem in exchange for fully repaying the outstanding loans. He added that the agreement was accepted by all family members which brought relief to his late mother. He pointed out that a KCB Account No 143411751 was opened on 3rd December 1993 with the consent of his late mother for managing rental proceeds from Plot No 45 and that he deposited Kshs 99,360/= for future projects and his deceased sister Dorcas Omena Binayo was authorised with the power of attorney by consent to the said account. 14. He further contended that from family meetings held it was agreed that money from the rents on the premises on Plot No 45 would be deposited in the said KCB Branch under the supervision of Dorcas Omena Binayo and that upon checking the KCB Account much later, he found out that the account was depleted through unauthorised withdrawals by Dorcas Binayo and Esnas Kamonya Mutie. 15. He was emphatic that no deposits were made to the said account but there were continuous withdrawals that led to its closure by the deceased on 25th June 2015. He asserted that since 1993, he had consistently paid all government rates accruing on Plot number 45 including for 2024 despite not receiving proceeds from the estate demonstrating his commitment to its preservation. He added that he was appointed as the 1st Administrator of Plot No 45 by Mrima J in 2014 but had been denied access to the rental proceeds and financial records for over thirty-two (32) years contrary to his rights and duties as an administrator. 16. He was emphatic that his actions to repay the loans owed to the creditors by the deceased granted him an equitable right over the property. He placed reliance on the case of Njiraine vs Co-operative Bank of Kenya (Civil Case E040 of 2021[2024] KEHC 9140 (KLR) where it was held that promissory estoppel prevents a promisor from reneging on a promise that the promise had relied upon to their detriment. 17. He also relied on the case of Carol Construction Engineers Ltd & Another vs National Bank of Kenya[2020]eKLR where it was held that parties should be prevented from going back on their promise. In this regard, he submitted that the 2nd Administrator and the family members could not go back on their promise to deliver Plot No 45 Serem to him where it was a condition after payment of all the loans he owed his creditors. 18. He was categorical that the evidence of payment of the loans to the respective creditors as evidenced in the pleadings was not in dispute as he had submitted all documents pointing to the direction that he had fully paid the outstanding loans and land rates of the said property hence preventing the said property from government penalties and auction. 19. He argued that the rule of evidence was clear that he who alleges must prove. He invoked Section 107, 108 and 109 of the Evidence Act and placed reliance on the case of Evans Otieno Nyakwana vs Cleophas Bwana Ongaro[2015]eKLR where it was held that the legal burden of proof lies upon the party who invoked the aid of the law and substantially asserted the affirmative of the issue. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/625/eng@2026-01-27 3

page 3 of 9

20. He further contended that the 2nd Administrator had failed to furnish evidence of the expenses they had incurred from the proceeds of the property which had been under her care and the late Dorcas Omena from the time their father passed away. He invoked Section 83 of the Law of Succession Act and submitted that an administrator owed a fiduciary duty to the estate and other beneficiaries. 21. He argued that the 2nd Administrator had abdicated her duty as a personal representative for failing to disclose all financial record and proceeds relating to Plot 45 Serem despite him paying yearly rates for thirty-two (32) years. He added that the actions of the 2nd Administrator amounted to intermeddling. 22. He further invoked Section 45 of the Law of Succession Act and relied on the case of Re Estate of M’Ngarithi M’Miriti[2017]eKLR where it was held that where there was no specific definition provided by the Act for the term “intermeddling” it referred to any act or acts which are done by a person in relation to the free property of the deceased without the authority of any law or grant of representation to do so. He also cited the case of Re Estate of Ndiba Thande (Deceased)[2013]eKLR where it was held that it was fallacious for a spouse or child to imagine that they could not be guilty of intermeddling when they handled property belonging to their dead spouse or parent without a grant of representation. 23. On her part, the 2nd Administrator submitted that she was the 1st Administrator’s sibling and that the deceased died and was survived by a widow who later died on 3rd July 1997. She asserted that the deceased was survived by ten (10) children but most of them were deceased and some of them were survived by their children who were grandchildren to the deceased. 24. According to her, the deceased left the following properties that had not been transferred. They included, Land Reference No Nyangori/Gamalenga/531 being ancestral land, Plot Number 63 situated at Serem Market, Plot Number 45 situated at Serem Market and Plot number 193/2 situated in Kakamega Site Service Scheme in Kakamega Municipality. 25. She argued that the 1st Administrator illegally transferred Land Reference No Nyangori/ Gamalenga/531 into his own name without involving other beneficiaries despite their sister Dorcas having placed a caution on the said parcel of land. She added that upon the death of Dorcas, the 1st Administrator illegally removed the caution and transferred the said parcel to himself. It was her contention that the said parcel belonged to the deceased having inherited the same from his father. 26. She pointed out that the documents transfer forms obtained stated that Land Reference No Nyangori/ Gamalenga/531 was transferred from one Samwel Songoro who was their uncle, thus, a true statement that the same was a family land due for inheritance and not to be solely owned and that the 1st Administrator could not explain how he ended up with the two (2) titles. 27. She was emphatic that even the Chief’s letter indicated that the deceased had left behind the abovementioned properties together with Nyan’gori/Banja/628 which he indicated had been transferred to their late mother Esther Tam Binayo in Succession Vihiga HCFP & A 118/2021 formerly Kakamega HCFP&A 731/2007 Estate of Esther Tamining Binayo which was yet to be finalised. 28. She asserted that it was clear that the 1st Administrator intermeddled with Land Reference No Nyangori/Gamalenga/531 by transferring it exclusively for his sole occupation to the exclusion of all others as children of their late father. She added that equally he had insinuated to have purchased Plot No 63 and 193/2 situated in Kakamega Service Scheme in Kakamega Municipality knowing very well that the same formed part of the deceased estate. 29. She further pointed out that in disputing the ownership, the 1st Administrator only listed Plot No 45 situated at Serem Market as the only property available for distribution in the succession and in https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/625/eng@2026-01-27 4

page 4 of 9

the confirmation of grant, he conspicuously listed Scheme 11 Plot No 193 Kakamega as assets for distribution. She argued that his dishonesty only left the court to conclude that all the properties as listed in the said letter from the Chief of Banja Location dated 13th June 2014 formed assets left behind by the deceased herein and thus subject to distribution to his children equally (whether living or survived by their children). 30. She proposed that the deceased’s estate be distributed as follows:1. L.R No Nyangori/Gamalenga/531 to be shared equally between Geoffrey Anyira, Brian Mbati, Evans Shimala and Kennedy Lihanda (late Albert and late Dorcas); 2. Plot No 45 situated at Serem Market to be shared equally with Esnas Kamonya and Catherine Chesi; 3. Plot No 63 situated at Serem Market to be shared equally between Julius Maiyo and Aggrey Inuam (children of the late Eunice and Grace); 4. Plot No 193/2 situated in Kakamega Site Service Scheme in Kakamega Municipality to go to the 1st Administrator. 31. She argued that the 1st Administrator’s intention was to lock out the sisters from inheriting any of the deceased properties. She added that he acted discriminatively just because they were girls and that traditionally girls would not own property. She asserted that the courts had seriously wiped out that fallacy. 32. She invoked Section 3 and 82 (b)(ii) of the Law of Succession Act and placed reliance on the case of Benson Mutuma Muriungi vs CEO Kenya Police Sacco & Another [2016]eKLR where it was held that “estate” meant the free property of a deceased person and that free property in relation to a deceased person meant the property of which that person was legally competent freely to dispose during his lifetime and in respect of which his interest had not been terminated by his death. 33. She also relied on the case of Njoki Gacheru Ndiuni vs Dadson Githenji Wahome & 3 Others[2016]eKLR where it was held that the property of a dead person could not be lawfully dealt with by anybody unless such a person was authorised to do so by law and that such authority emanated from a grant of representation and any such person who handled estate property without authority was guilty of intermeddling. In that regard, she was emphatic that L.R No Nyangori/Gamalenga/531, Plot No 45 situated at Serem Market, Plot No 63 situated at Serem Market and Plot No 193/2 situated in Kakamega Site Service Scheme in Kakamega Municipality formed part of the estate of the deceased and should be included for distribution as amongst the beneficiaries of the estate of the deceased. 34. She further invoked Section 26(1) of the Land Registration Act and argued that where a title or registration of land had been acquired without following the due process the same was fit for cancellation by the court. She asserted that the registration or subsequent ownership after the death of the deceased was ultimately a fraud. 35. She cited Section 47 of the Law of Succession Act and Rule 73 of the Probate and Administration Rules and relied on the case of Santuzza Bilioti alias Mei Santuzza (Deceased) vs Giancarlo Falasconi[2014]eKLR where it was held that the succession court had powers to order a title deed to revert to the names of a deceased person and also order for cancellation of a title deed if a deceased’s property was being fraudulently taken away such as where the property was being sold before a grant was confirmed. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/625/eng@2026-01-27 5

page 5 of 9

36. She further cited Article 27 of the Constitution of Kenya 2010 and submitted that the Constitution of Kenya and the Law of Succession Act frowned at the notion that daughters (women) should not inherit property from their parents and/or ranked lower in priority despite all of them being children of the deceased. 37. She was emphatic that her mode of distribution proposal was more wholesome and equitable distribution that this court could adopt in distributing the estate of the deceased. She added that her proposal was fair to all family members as it took into account all her siblings and her siblings’ children. She pointed out that it was trite law that costs follow events as was held in the case of Orix Oil (Kenya) Limited vs Paul Kabeu & 2 Others[2014]eKLR. She argued that the 1st Administrator intended to frustrate parties herein hence it was only by way of costs that such cunning behaviour could be curbed. 38. Notably, the 1st Administrator relied on his Statement dated 26th September 2023 and filed on 18th December 2023 and his Bundle of Documents dated and filed on 18th December 2023. 39. In his oral evidence, he testified that when the deceased died, he left behind two (2) properties namely Plot No 45 which was a shop in Serem Market and Land Parcel No 628 Nyangori Banja location. He stated that the Parcel No 628 was in the deceased’s name and was transferred into his mother’s name when the deceased died, therefore, was not part of the proceedings herein. 40. He stated that the parcel that was subject of this cause was Plot No 45 Shop at Serem. He further testified that Nyangori/Gamalenga/531 was his plot which emanated from Plot 212 which belonged to Shadrack Ayange. He said that he offset the said land with a debt that the said Shadrack Ayange owed him. He pointed out that Samuel Songoro Ayange was the son of Shadrack Ayange and Shadrack Ayange was the deceased’s brother. He was emphatic that Plot 212 was not an ancestral land. 41. It was his further testimony that he got the title of Nyangori/Gamalenga/531 on 28th July 2010. He said that the copy of title dated 28th October 2010 was a wrong title as the right one was issued on 13th January 2016. He added that he knew one Dorcas Omena Binayo who was his sister and died in 2013. He said that he was not aware that the said Dorcas had put a restriction on Nyangori/Gamalenga/531. 42. He further stated that he obtained a consent for transfer of the said land in 2010 and the Title in 2016 and that it was not true that he proceeded to get the Title after Dorcas had died. 43. He testified that Plot 63 Serem was also his property having acquired it in 1985. He pointed out that he had documents for acquisition of the said property and was in possession of the same collecting rent and paying rates hence it could not form part of the proceedings herein. He argued that the Chief wrote the letter based on what the 2nd Administrator had told him. He claimed that he had spoken to the Chief who confirmed the same. 44. He was categorical that he was the owner of Kakamega No 193/2 which he acquired in 1986, the deceased having transferred to him. He said that he had minutes for 1984 from the Municipal Council Kakamega to confirm that position. He was emphatic that he bought the said property from the deceased. 45. On her part, the 2nd Administrator relied on her Statement dated 4th January 2024 and filed on 16th January 2024 and her bundle of documents. She testified that Nyangori/Gamalenga/212 which was subdivided to Nyangori/Gamalenga/531 belonged to their grandfather. She admitted that the deceased transferred the parcel Scheme 11 Plot 193/2 to the 1st Administrator as she had seen the Transfer from Municipal Council of Kakamega dated 25th September 1886. However, she argued that the deceased may have transferred the same without consulting with the family. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/625/eng@2026-01-27 6

page 6 of 9

46. It was her further testimony that she was aware that the deceased had many loans in different banks and that all children contributed in offsetting the same and it was not true that the 1st Administrator paid all the deceased’s debts as alleged. She added that even if the 1st Administrator paid the dues he was not entitled to take the properties such as Plot No 45 Serem to be specific. She pointed out that she paid the rates for Plot No 45 from 2014-2025 and that the 1st Administrator only paid in 2013 and 2023. 47. Having said so, this court noted that the 2nd Administrator agreed that the land parcel Nyangori/ Gamalenga/531 emanated from Nyangori/Gamalenga/212 which land belonged to one Shadrack Ayange as was proven by Certificate of Search dated 30th July 2014. The 1st Administrator argued that he obtained the right Title to the said parcel in 2016. As the previous owner was Shadrack Ayange and not their grandfather, it was, therefore, clear that the same was not an ancestral land as at the time the 1st Administrator had obtained from Shadrack Ayange who was their uncle. 48. This court noted that the said Shadrack Ayange was not a party to this suit and was not called to give evidence so as to shed light on the said issue. Be that as it may, documents that were produced showed that he was the initial registered owner of the said property. In that regard, the said parcel did not therefore form part of the estate of the deceased herein. In the mind of this court and from the evidence on record, it appeared it had been transferred from their grandfather to Shadrack Ayange who later transferred it to the 1st Administrator through a sale transaction. 49. In regard of Plot number 193/2 situated in Kakamega Site Service Scheme in Kakamega Municipality, the 2nd Administrator also agreed that she had seen the transfer forms from Kakamega Municipality which had proved that the deceased had transferred the same to the 1st Administrator in the year 1986. 50. A perusal of the 1st Administrator’s Bundle of Documents at page 10 indicated the letter from the Municipal Council of Kakamega addressed to the deceased showed that the council had effected the transfer of the said parcel Plot number 193/2 situated in Kakamega Site Service Scheme to the 1st Administrator. It was, therefore, clear that the same did not form part of the estate of the deceased as he had transferred the same in 1986, which was before he died in 1993. 51. As for Plot No 63 Serem, the 1st Administrator produced a Sale Agreement dated 8th September 1985 to show that he acquired the same from one Abisai Ahaza. The deceased was not mentioned anywhere in the said agreement. This court was, therefore, convinced that the said Plot 63 Serem Market did not form part of the deceased estate herein. 52. As for Plot 45 Serem Market, the 1st Administrator had argued that as he had paid loans on behalf of the deceased that had been secured by the same plot then he was entitled to inherit the whole of that Plot in exclusion of other family members. The liability of the estate of a deceased person was a burden to all the beneficiaries because one way or other, they would have to lose out on the assets if they would not take measures to save the securities held by the bank. 53. Having said so, both the 1st and 2nd Administrators indicated that they paid the debts of the deceased to secure the said Plot, although, the 2nd Administrator did not produce receipts to that effect. This court had due regard to the case of Re Estate of Festo Lugadiru Abukira (Deceased) [2019] KEHC 3281 (KLR) where it was held that there was no such law to the effect that where a child assists a parent to settle debts and liabilities encumbering a property, then, upon the parent’s death, the said child is entitled to a bigger share of the estate or that such assistance would amount to the said child acquiring a right to the property that they have assisted to salvage. The court added that the property in question still remained part of the estate of the deceased, and the child could only claim reimbursement from the estate of the expense incurred in saving the property. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/625/eng@2026-01-27 7

page 7 of 9

54. As the 2nd Administrator argued that all beneficiaries contributed in salvaging the deceased’s Plot No 45 in paying of debts, this court was not convinced that it was right to order that the 1st Administrator be reimbursed as the two (2) administrators herein were siblings and it was important that peace in the family be preserved to enable settle the issue herein. 55. At this juncture, it was this court’s considered view that the asset in form of land available for distribution in the deceased’s estate herein was only Plot No 45 at Serem Market. Therefore, the 2nd Administrator’s mode of distribution failed for having included properties that did not form part of the estate of the deceased. 56. Going further, looking at the mode of distribution by the 1st Administrator, it seemed to have alienated the female children of the deceased. It is trite law that both the male and female children of the deceased are entitled to equal shares of the deceased’s estate. Section 38 of the Law of Succession Act enshrines the principle of equal distribution of the net intestate estate to the surviving children of the deceased irrespective of gender or marital status. 57. The Court of Appeal in Peter Karumbi Keingati & 4 Others vs Dr Ann Nyokabi Gotha & 4 Others[2015]eKLR held that Article 27 of the Constitution guarantees for the equality of all before the law and the right to equal protection and the benefit of the law and further proscribes discrimination on grounds including race, sex and marital status. 58. Even before the promulgation of the Constitution in 2010, the court in Re Estate of Solomon Ngatia Kariuki (Deceased) [2008] eKLR made a very strong statement on the issue of discrimination against daughters generally in succession matters and held that the Law of Succession Act did not discriminate between the female and male children or married or unmarried daughters of the deceased person when it came to the distribution of his estate. 59. Thus, the 1st Administrator’s mode of distribution was discriminatory and contrary to the provisions of the Constitution of Kenya, 2010 as well as those of the Law of Succession Act and should not be considered in distribution of the deceased estate herein. Disposition 60. For the foregoing reasons, the upshot of this decision was that the proposed mode of distribution in the 1st Administrator’s Summons for Confirmation of Grant dated 17th December 2014 and filed on 26th January 2015 and the proposed mode of distribution in the 2nd Administrator’s Summons for Confirmation of Grant dated 10th February 2022 and filed on 16th February 2022 were not merited and the same be and are hereby dismissed. 61. It is hereby directed that the Lands Registrar cancels the title of Plot No 45 situated at Serem in the name of the 1st Administrator and make entries to revert the same to the deceased’s name for distribution to all the beneficiaries estate equally. 62. It is hereby directed that the 1st and 2nd Administrators herein jointly or severally, provide a list of beneficiaries of the deceased, whether male or female, whether deceased or not for distribution of Plot No 45 Serem by the court by 10th February 2026. For the avoidance of doubt, the 1st and 2nd Administrators jointly or severally shall provide a list of the family members of the deceased beneficiaries. 63. In the event that the 1st and 2nd Administrators shall not provide the aforesaid list, this court will proceed to distribute Plot No 45 Serem according to the beneficiaries it will be able to discern from the different https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/625/eng@2026-01-27 8

page 8 of 9

documentation in the court file which could be detrimental to some beneficiaries as they could be left out. 64. The matter be mentioned on 16th March 2026 for compliance and further directions. 65. It is so ordered. DATED AND DELIVERED AT VIHIGA THIS 27TH DAY OF JANUARY 2026 J. KAMAU JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/625/eng@2026-01-27 9

page 9 of 9