Makanga v Gichobi (Civil Appeal 42 of 2018)
[2023] KEHC 3382 (KLR) (25 April 2023) (Judgment)
Neutral citation: [2023] KEHC 3382 (KLR)
REPUBLIC OF KENYA
IN THE HIGH COURT AT KERUGOYA
CIVIL APPEAL 42 OF 2018
FR OLEL, J
APRIL 25, 2023
BETWEEN
GODFREY K. MAKANGA ..................................................................... APPELLANT
AND
T. JIMMY MAKANGA GICHOBI ..................................................... RESPONDENT
(Being an appeal against the ruling and orders of the Hon. Resident Magistrate G.K.
Odhiambo (ESQ) dated 13th July 2019 in Gichugu SRM succession cause no. 376 of 2016)
JUDGMENT
1. This appeal arises from the Ruling of Honourable GK Odhiambo (RM) dated July 13, 2018 where
he dismissed an objection/protest led by the appellant dated April 10, 2018. The Honourable trial
Magistrate further directed that in the spirit of equal distribution as contemplated in Section 35, 38 and
40 of the Law of Succession Act, Land parcel No Ngariama/Kabare/416 should go to Francis Njogu,
land parcel Ngariama/Kabare/419 to go to James Gachoki and land parcel Ngariama/Kabare/421 to
go to the Respondent herein T Jimmy Makanga Gichobi.
2. Being wholly dissatised by the said Ruling/Order dated July 13, 2018 the Appellant herein, who was
the Protestor led his Memorandum of Appeal, where he raised seven (7) grounds of appeal namely;
a. That the Learned trial Magistrate erred in law and in fact by holding that the Petitioner was
the son of the deceased contrary to the evidence tendered in Court. A miscarriage of justice
was thereby occasioned.
b. That the Learned trial Magistrate erred in law and infact by Holding that the deceased intended
to give land parcel number Ngariama/Kabare/421 to the Petitioner when it was clear that the
said land had been given to the protestor and took possession of the same. A miscarriage of
justice was occasioned thereby.
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c. That the Learned trial Magistrate erred in law and fact by failing to appreciate that the
Appellant has been utilizing land parcel No Ngariama/Kabare/421 since 1993 when he was
given the same land by the deceased and which showed that those were the wishes of the
deceased. A miscarriage of Justice was thereby occasioned.
d. That the Learned trial Magistrate erred in law and fact by failing to take into account that the
petitioner never utilized or entered the said parcel of land number Ngariama/Kabare/421 and
that he got his own land at Embu County. A miscarriage of Justice was thereby occasioned.
e. That the Learned trial Magistrate erred in law and fact by failing to consider the developments
which had been done by the protestor on land parcel number Ngariama/Kabare/421. A
miscarriage of Justice was thereby occasioned.
f. That the Learned trial Magistrate erred in law and fact by misinterpreting the Law Of Succession
Act and particularly the sections dealing with distribution of the estate of the deceased. A
miscarriage of justice was thereby occasioned.
g. That the decision and ruling of the Learned trial Magistrate is not only awed by error on
the record but total misunderstanding of the legal principles involved in Law of Succession Act
which deals with distribution of the estate of the deceased.
3. The appellant therefore prayed that his appeal be allowed, the Ruling of the subordinate court be set
aside and distribution of the estate be done in accordance with the protestor/appellant proposal in the
protest.
Brief Facts
4. The Respondent herein T Jimmy Makanga applied for letters of administration for the estate of the
late Ndiga Njagi who died intestate on February 17, 2009 through a petition led in Court on February
10, 2016. He applied on the basis that he was a son of the deceased and named other beneciaries as
Joseph Mbute Makanga - Son
James Gachoki Makanga - Son
Mugo Makanga - Son
Emmaculate Wangigi Makanga - Daughter
Georey Karubo Makanga - Son
Francis Njogu Makanga - Son
5. Form 38, consent to the making of letter of administration of a person of equal or less priority was not
signed by all the beneciaries as at the time of ling the petition.
6. The Respondent herein had earlier led a citation at the High Court in Kerugoya dated February 22,
2016 (Kerugoya High Court Succession Cause No 48 of 2016) and those cited were Joseph Mbute,
Mugo Makanga and Emmaculate W Makanga and Godfrey Karubo Makanga. The respondent had
sought to compel them to take up letter of administration of the Estate of the late Ndiga Njagi. When
the matter came up for hearing on July 13, 2016, the High Court did order that it be transferred to
Gichugu law Court for disposal. The citation was placed before Honourable Nasimiyu on March 8,
2017 and she directed that since the citee’s had failed to le for letters of administration, the same
should be taken out by the Petitioner/Respondent herein.
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7. The Respondent did proceed and applied for letters of administration and the same were issued to
him on July 12, 2017. On February 28, 2018, the Respondent sought for conrmation of grant issued
on July 12, 2017. Aggrieved by the proposed mode of distribution the Appellant led an adavit
of protest dated April 10, 2018. In the said adavit the Appellant strongly opposed the mode of
distribution as proposed by the petitioner and stated that he is the person who has been utilizing
land parcel number LR Ngariama/Kabare/421 and had extensively developed the same by planting
tea bushes. He had also obtained restraining orders against James Gachoki Makanga from trespassing
thereon.
8. The Appellant proposed that the deceased property be shared as follows;
a. LR Ngariama/Kabare/416 - Francis Njogu Makanga
b. LR Ngaiama/Kabare/319 - James Gachoki Makanga
c. LR Ngariama/Kabare/421 - Godfrey K Makanga
He further stated that the Respondent herein had got his land parcel in Embu where he resides with
his family. The parties took direction on mode of hearing of the protest May 23, 2018 and it was agreed
to dispose o the protest by way of oral evidence.
9. The Appellant testied before the trial court and stated that Ndiga Njagi (the deceased) was his father
and he had land parcel Ngariama/Kabare/416, 419 and 421. The deceased had one wife Monicah
Kanini Ndiga who died on November 21, 2015. He had ve children namely; Macalata Wambui,
Joseph Mbuta, Mugo Makanga, Godfrey K Makanga and Francis Njogu Makanga. He further alleged
that the Respondent herein Jimmy Makanga Gichobi was his uncle and not a son of the deceased Ndiga
Njagi. The Respondent father was Gichobi Njagi and his mother was Kamori Mutero. He resided in
Embu on his father’s land and had not utilized any part of the deceased estate during his lifetime.
10. On the mode of distribution he proposed that the parcel be distributed as follows ;
Ngariama/Kabere/416 - Francis Njogu
Ngariama/Kabere/419 - James Gachoki
Ngariama/Kabere/421 - Godfrey Karongo
He justied the same by stating that he had full use and control of land parcel Ngariama/Kabare/421,
where he had planted nappier grass and coee. He also had a court order restraining his brother, James
Gachoki from trespassing thereon. He was of the opinion that the Respondent should not inherit
any land of the estate. On cross examination he reiterated that the Respondent was his uncle and had
falsied the birth certicate. He conrmed that the deceased Ndiga Njagi had sub-divided his land in
1993 to create parcels LR Ngariama/Kabere/415- 421.
11. The Appellant further conrmed that the said parcel of land had been transferred to various family
members during the life time of the deceased Ndiga Njagi and only LR No Ngariama/Kabere/421
remained in the name of the deceased Ndiga Njagi. The Appellant’s further testied that the said land
parcel Ngariama/Kabere/421 was later given to him and reiterated that the Respondent changed his
birth certicate as his names were dierent from the other siblings. His identity card showed that he
was born in Gaturi and his father was Gichobi Njagi.
12. The Respondent testied that the deceased Ndiga Njagi was his father, while her mother was Kanini
Mbuta. He was born in Mucagara, Baragwe location, Gichugu division and later moved to Thumaita
Village. The deceased owned/was given LR Ngariama/Kabare/135, which was approximately seven
(7) acres where he settled his family in 1961. The Respondent further testied that he went to Muragara
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Primany School and did his CPE in 1965. He then proceeded to Kianyaga High School in 1966 and
after completing his secondary school, went to work at Government Printers in 1970.He produced his
birth certicate as an exibit to prove that indeed he was a son of the late Ndiga Njagi.
13. In 1981 he went to Embu and bought land from a friend called Charles Ndwiga where his immediate
family resides. He would occasionally visit his parents and other brothers would also visit him in
Nairobi. In the year 1993 the deceased Ndiga Njagi, sub-divided his land into seven (7) parcels to create
Ngariama/Kabare 415-421.He called all his children and showed them where they would utilize. The
land was sub-divided accordingly to Kikuyu customs.
LR Ngariama/kabere/415 - Deceased Homestead.
LR ngariama/kabere/416 - Was Given To Francis Njogu
LR ngariama/kabere/418 -was Given To Godfrey Kamotho
LR ngariama/kabere/419 -was Given To Mugo Makanga
LR ngariama/kabere/420 -was Given To James M. Makanga
LR Ngariama/kabere/421 -was Given To Jimmy Makanga
Later LR ngariama/kabare /415 Was Later Given To Their Sister Macalata.
14. The Respondent further testied that since he was based in Nairobi he did not utilize the land and
left it to his father to utilize by growing tea and coee. The deceased later requested him to employ a
shamba boy to take care of it or allow one of his brother to utilize it. They decided to allow the protestor
to utilize it so that it does not go to waste. He stated that he were a member of the family of the late
Ndiga Njagi and that is why even the protestor did not object to him ling the succession cause. The
Appellant’s allegations that he was not a blood relative had no basis and urged the court to distribute
the estate as per his proposal.
15. In cross examination he armed that he was a son of Ndiga Njagi and his Identity card reads T Jimmy
Makanga Gichobi. He used Makanga Gichobi as his father’s name and this was due to a mistake done
when registering his names in his school certicate. The suit parcel was sub-divided in 1993 while he
was in Nairobi and other parcels were transferred to his siblings. He employed the protestor and paid
him Kshs 10 for every kilogram of tea taken to KTDA.
16. Due to the fact that he had settled in Embu, he allowed his father to utilize the land. When their father
became unwell, his brother Mugo would take him to hospital, while he would visit to check on him.
The Respondent stated that he was only interested in one acre and other sibling had accepted their one
acre and not complained about the same, even the last born had one acre.
17. The Respondent further stated that if the Appellant was dissatised with the distribution eected, he
should have proceeded to buy his land. Currently the Appellant was forcefully using LR No Ngariama/
Kabere/421 which he was not entitled too. His birth certicate was issued in 1976 and therein the entry
of his father was indicated as Ndiga Njagi. His sister Maculate was also known Immaculate, Wangige
or Wambui.
18. The respondent’s second witness was PW2 James Gachoki Maknga. He conrm that they were born
seven (7) children six brothers and one daughter. Their father sub-divided land his land into seven
portions and thereafter equally sub divided it , amongst his children. Each sibling was to get one
acre each. In cross examination he conrmed that the Respondent was his brother and they even
looked alike. He conrmed that the Respondent at one point utilized the land the land LR Ngariama/
Kabare/421, but had last used it in 2006. He later allowed the Respondent to go harvest tea. The
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appellant had further got a restraining order against him. He also stated his father never had any loan
attach to his land.
19. PW 3 Mugo Makanga also conrmed that the Respondent was his elder brother and that their father
had sub-divided his land into seven (7) portions. The deceased Ndiga Njagi, had thereafter called all
his children and allotted them/showed them their portion in accordance to Kikuyu customs. The land
was sub-divided in a sequence from the eldest to the youngest and they stayed thereon in that manner.
Their father thereafter gave them liberty to transfer their portion to themselves and that explains why
some of them already had title deeds, while others did not have. Those with title deeds was himself,
Mugo Makanga, Godfrey Makanga, Joseph Mbute Makanga and Maculata.
20. In cross examination he conrms that the respondent was his brother and not his cousin. The
respondent was then rst born son in their family, while Maculata was the overall rst born child. Parcel
LR No Ngariama/Kabare/415 was given to Maculata. The Respondent had previously build on parcel
197 before it was sub-divided, but had not used land parcel Ngariama/Kabare/421, which their father
was utilizing, but currently was used by the Appellant. The land Ngariama/Kabare/421 was developed
by the deceased Ndiga Njagi who planted tea thereon. He reiterated that the Respondent was their
brother and not cousin.
21. The trial Court did consider the evidence adduced and submission led and ruled in favour of the
Respondent hence this Appeal.
Appellant Submissions
22. The Appellant led his submission on August 16, 2022 and faulted the trial Magistrate for nding that
the Respondent was a son of the deceased, when the birth certicate produced was not authenticated
before arriving at that conclusion. The Respondent’s father was called Gichobi and the Respondent
was unable to explain why he did not have the name Ndiga or Njagi, yet all the other six children had
the name Njagi. The trial Court was thus wrong in the ndings.
23. The second ground of appeal raised was on utilization of the suit parcel. The Respondent had
conrmed that he resided in Embu and had never utilized parcel Ngariama/Kabere/421. It was clear
from the evidence adduced that it was the Appellant who had been utilizing the said parcel of land
by planting tea and coee. The deceased had given his other children other parcels of land to built on
and his wishes were that Appellant should take LR No Ngariama/Kabare/421 That is why he settled
the Appellant therein. If any other beneciary was disenchanted by this arrangement they would have
taken it up with the deceased during his lifetime which they did not.
24. By settling Appellant on LR Ngariama/Kabare/421 from 1993 and given that the appellant’s
possession was long and undisputed, the trial Court ought not to have interfered with that arrangement
as the decision by the deceased was made willfully, knowingly and consciously. The Appellant prayed
that this parcel of land be awarded to him during distributed of the Estate.
25. The nal issue raised by the Appellant in his submission was that the trial magistrate misinterpreted
the law as regards distribution of the estate and that it was wrong to distribute it equally. The Appellant
submitted that section 35 of the Law of Succession Act was not applicable since the deceased wife had
died and there was no surviving spouse. Section 38 of the Law Of Succession Act, was applicable as it
provided for the estate to be divided equally amongst surviving children. The Learned magistrate did
not sub-divide the estate equally since he bequeathed the land parcels that were in the names of the
deceased to some children and left out others.
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26. Since the Respondent did not question the deceased when he gave out and sub-divided his parcel
of land and since the Appellant had utilized LR NO NGARIAMA/KABARE/421 for along
uninterrupted period, (Since 1993) based on the deceased direct consent for him to use the said parcel
of land, It amounted to gift inter vivos. The Appellant relied on RE Estate of Nahashon Arimba Ndiira
(deceased)(2019) eKLR and Martha Wanjiku Waweru-Vrs- Mary Wambui Waweru (2007) eKLR.
27. The Appellant also submitted that the Respondent owned seven (7) acres of land in Embu and
still wanted more which would be unfair, discriminatory and unjust to other beneciaries. The
Respondent never asked for land during the lifetime of the deceased, and did not deserve any portion
of the deceased estate. The Court should allow this appeal and bequeath LR Ngariama/ Kabare/421
to the Appellant.
Respondent Submission
28. The Respondent did le his submission on September 14, 2022 and opposed this appeal on the basis
that it lacked merit, was incompetent, misconceived and lack merit. The judgment delivered us well
considered, balanced and addressed all issues extensively. He urged this Court to uphold the said
judgment.
29. On the ground of appeal raised the Respondent averred that there was no evidence to support the
issues raised and his birth certicate conclusively proof that he was a son of the deceased. The appellant
had failed to prove otherwise and therefore could not be heard to say that the Respondent was not a
dependant of the Estate.
30. On the issue of distribution, the Respondent submitted that the deceased Ndiga Njagi intentionally
sub-divided his land into several equal portions and equally distributed the same amongst his surviving
children during his lifetime with each child getting one acre each. The Appellant during his lifetime had
been bequeathed LR Ngariama/Kabere/417 and the parcels of land bequeathed but not transferred
were Ngariama/Kabare/416, 419 and 421. The three siblings who had not transferred their one acre
share were Francis Njogu, James Gachoki and the Respondent. The Court therefore rightly awarded
them their portion.
Francis Njogu - Ngariama/Kabere/416
James Gachoki - Ngariama/Kabere/419
T. Jimmy Makanga - Ngariama/Kabere/421
31. As regards the nal ground of appeal raised (Ground 3 – 6) the Respondent submitted that the trial
Court rightly found that the fact that he owned land in Embu was not sucient ground to deny him
of his share of the estate. Secondly the appellant if granted his desire would end up with 2 acres of
land which would have been unequitable as each beneciary was to get one acre each and that would
also mean that the Respondent would not get any share of his father’s estate. Finally since it was not
proven that the said parcel LR Ngariama/Kabere/421 was given to the Appellant as gift. It was still
registered in the name of the deceased and thus subject to distribution as provided for under the Law
of Succession Act.
The Respondent prayed that this appeal be dismissed with costs.
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Analysis and Determination
32. I have considered the pleading evidence presented and submissions of both parties. In this appeal, this
Court rst and foremost is enjoyed to subject the whole proceedings to fresh scrutiny and make its
own conclusions.
33. As held in Selle & Ano –Vrs-Associated Motor Boat Co Ltd & Others (1968) EA 123
' I accept counsel for the Respondent’s preposition that this Court is not bound necessarily
to accept the ndings of afct by the Court below. An appeal to this Court from the 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. Briey put they are that this Court must reconsider the evidence,
evaluation it itself and draw its own conclusions through it should always bear in mind
that it neither saw or 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 nding 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 or if the impression based
on the demeanor of a witness is inconsistent with the evidence in the case Generally (Also
see Abdul Hammed Saif-Vrs- Mohammed Sholan(1955 22 EA CA 270)
34. In Coghlan Vs Cumberland (1898) 1ch 704 the Court of Appeal of England stated as follows;
' Even where, as in this case, the appeal turns on a question of fact, the Court of appeal has to
bear in mind that its duty is to rehear the case, and the Court must reconsider the material
before the judge with such other material as it may have decided to admit. The Court must
then make up its won mind, not disregarding the judgment appealed from, but carefully
weighing and considering its and not shrinking from overruling it if on full consideration
the Court comes to the conclusions that the judgment is wrong when the question arises
which witness is to be believed rather than the other end that question turns on manner and
demeanor the Court of appeal always, is and must be guided by the impression made on
the judge who saw the witness. But there may obviously be other circumstances quite apart
from manner and demeanour which may show whether a statement is credible or not; and
these circumstances may warrant the Court in diering from the judge, even on a question
of fact turning on the credibility of witnesses whom the Court has not seen.
35. Therefore, this Court has a solemn duly to delve at some length into factual details, and revisit the
evidence presented at the trial Court, analyze the same, evaluate it and arrive at its own Independent
conclusion, but always remembering and giving allowance for it, that the trial court have the advantage
of hearing the parties.
A. The Learned magistrate erred in law and in fact in holding that the Petitioner was as son to the
deceased.
36. The Appellant submitted that the trial court erred in holding that the Respondent was a son of the
deceased Ndiga Njagi and further that the Court ought to have authenticated the birth certicate
before arriving at that conclusion. The appellant also submitted that the Respondent was not able
to explain why he did not have the name Ndiga or Njagi as his surname but instead his surname but
instead his surname was Gichobi.
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The legal burden of proof
37. The legal burden of proof is provided for Under Section 107 of the Evidence Act Cap 80 Laws of Kenya.
The said section provides that;
i) Whoever desires any Court to give judgment as to any legal right or liability dependent on the
existence of facts which he asserts must prove that those facts exists.
ii) When a person is bound to prove the existence of any fact it is said that the burden of proof
lies on that person.
The Evidence burden of proof
38. The party as the case maybe on whom the legal burden of proof lies may or may not adduce sucient
and admissible evidence in proof of any allegation made in the plaint, petition or counterclaim. On
one hand, if no sucient evidence is adduced to the required standard, then the allegation (s) fail and
it all ends there. On the other hand, if evidence is adduced to the satisfaction of the Court, then it
becomes the burden of the Defendant/Respondent(s) to adduce evidence rebutting the allegations
and to demonstrate otherwise. At this point the burden is said to shift to the Respondents. This is the
evidential burden of proof.
39. The majority decision of the Supreme Court in Presidential Election Petition No 1 of 2017 between
Raila Amolo Odinga & Anor-Vrs- IEBC & 2 Others (2017)eKLR. Had the following to say on the
evidence burden of proof at paragraph 132 and 133 thereof;
(132) Though the legal and evidential burden of establishment facts and connections which will
support a party’s cases is static and 'remains constant through a trial with the plainti, however,
'depending on the eectiveness with which he or she discharges this, the evidential burden
keeps on shifting and its position at anytime is determined by answering the question as to who
would lose if nor further evidence were introduced.
(133) It follows therefore that once a Court is satised that the Petitioner has adduced sucient
evidence to warrant impugning an election, if not contraverted then the evidentiary burden
shift to the Respondent, in most cases the electoral body to adduce evidence rebutting that
assertion and demonstrating that there was compliance with the law or, if the ground is one
of irregularities, that they did not aect the results of the election. In other words, while the
Petitioner bears an evidentiary burden to adduce 'factual' evidence to prove his/her allegation
of breach, then the burden shifts and it behooves the respondent to adduce evidence to prove
compliance with the law.
40. In the case of Mbuthia Macharia –Vrs- Annah Mutua & Anor 2012 eKLR the Court of appeal
discussed the burden of proof and stated that;
' The legal burden is discharged by way of evidence, with the opposite party having a
corresponding duty of adducing evidence in rebuttal. This constitutes evidential burden.
Therefore, while both legal and evidential burden initially rests upon the appellant, the
evidential burden may shift in the course of the trial, depending on the evidence adduced.
As the weight of evidence given by either side during the trial varies, so will the evidential
burden shift to the party who would fail without further evidence'.
41. The Appellant alleged that the Respondent was not a son of the deceased Ndiga Njagi. The
Respondent produced his birth certicate (Exhibit 1) issued in 1976 where Ndiga Njagi was
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acknowledged as his father. Secondly both of the Respondents witnesses PW2 James Gachoki
Makanga and PW3 Mugo Makanga conrmed that the Respondent was their elder brother (1st born
amongst sons and immediate follower of Maculata Wambui the overall rst born). PW2 James Gachoki
Makanga further stated that 'Jimmy is my brother we even looked alike. He is not my cousin'.
42. The Respondent evidence was corroborate by evidence of PW2 and PW3 that he was their blood
brother. This particular piece of evidence was not controverted in any manner. In this appeal the
appellant faulted Court for accepting certicate of birth as proof that he was the son of Ndiga Njagi
without authenticating it.
43. Courts do not enter the arena of conict and it was not the duty of court to 'authenticate the birth
certicate'. If the appellant so wished, he would have insisted on calling for additional evidence to
challenge the same. He had an opportunity to do so but failed. The evidence burden shifted to him
and it was him who was bound to fail should no further evidence be availed. Indeed he failed and this
ground of appeal lack merit.
B. The Appellant was gifted the suit parcel Inter vivos by the deceased and utilized and develope the
suit parcel.( Grounds 2, 3, 4 and 5 of the Memorandum of Appeal)
44. The Appellant submitted that the Respondent conrmed that he resides on his land in Embu and had
been there from 1981.It was thus clear that the appellant never at any point utilized the suit parcel LR
Ngariama/Kabare/421. This fact supported the appellants contention that it was the appellant who
had been using the suit parcel all along ever since he was given possession by the deceased Ndiga Njagi.
He had developed it by planting tea and coee and non of his sibling had interfered with his possession
since 1993.
45. By settling the Appellant on the suit parcel, the deceased wishes were that the appellant gets this land
after his demise and it amounted to a gift inter vivos. Finally the appellant submitted that the trial court
erred in distributing the properties of the estate based on Section 38 of the Law of Succession Act. The
court did not equally sub-divide estate property to all children.
46. The appellant began his cause of action/protest by ling an adavit of protest on April 10, 2013. In
the said protest he did not plead and/or mention that he was gifted parcel Ngariama/Kabare/421 by his
father Inter vivos during his lifetime. He only alleged that he is the person who utilized the said parcel
of land and extensively developed it by planting tea bushes and further averred that the Respondent
had his land in Embu where he resided.
47. Similarly in his evidence in chief, he alleged that the Respondent was not entitled to any part of the
estate as 'his father had land in Embu'. The Respondent was not utilizing any of 'our father’s land.'
He rearmed that he was using land Nagriama/Kabare/421 and had planted nappier grass and coee.
Again nowhere in his evidence in chief did he allege being bequeathed the said parcel of land as a gift
inter vivos. He only alleged as much in cross examination where he stated that, 'Parcel 421 was later
given to me'.
48. Gift inter vivos is a latin term commonly translated to mean 'a gift between the living' or 'a transfer or
gift made during the grantors life'
The three key elements of inter vivos gift are;
a) Present donative intent (the donors clear intent to pass title/interest to the property to the
recipient).
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b. Delivery (a surrender of all or some dominion and control by the donor and allowing the done
to have possession.
c) Acceptance of the Gift by the done
Finally there must be donative intent. The donor must intend to presently transfer title from himself
or herself to the done. Intent to transfer possession of the property is not sucient.
49. The determination as to the manner in which a property was to be distributed depended on the answer
as to whether the deceased had distributed some of his properties to some of the beneciaries inter
vivos or gift causa mortis and if the same is proven, then the Court will be compelled to honour the
deceased wishes.
Section 42 of the Law of Succession provides that;
(42) Where
a. An intestate has, during his lifetime or by will paid, given or settled any property to or
for the benet of a child, grandchild or house;
b. Or property has been appointed or awarded to any child or grandchild under the
provisions of section 26 or section 35 of this Act, taken he had not predeceased the
intestate.
That property shall be taken account in determining the share of the net intestate nally accruing to
the child, grandchild or house.
50. What are the requirement in law as far as gift inter vivos is concern. In Re Estateof The Late Gedion
Manthi Nzioka (2015) eKLR, had this to say
' In law, gifts are of two types. There are gifts made between living persons (gift inter vivos)
and gifts made in contemplation of death (gifts mortis causa) Section 31 of the Law of
Succession Act provides as follows with respect to gifts made in contemplate of death;
For gifts inter vivos, the requirements of law are that the said gift maybe granted by deed,
an instrument in writing or by delivery, by way of a declaration of trust by the donor, or by
way of a resulting trusts or the presumption of gifts of land must be by way of registetred
transfer, or if the land is not registered it must be in writing or by declaration of trust trust
in writing. Gifts inter vivos must be complete for the same to be valid'.
51. In Halsburys law of England 4th Edition Volume 20 (1) at paragraph 67 it was stated as follows with
respect to incomplete gifts.
' Where a gift rests merely in promise, whether written or oral, or in unfullled intention,
it is incomplete and imperfect, and the Court will not compel the intending donor, or
those claiming under him, to complete and perfect it, except in circumstances where the
donor’s subsequent conduct gives the donee a a right to enforce the promise. A promise
made by deed however, binding even though it is made without consideration. If a gift is to
be valid the donor must have done everything which according to the nature of the property
comprised in the gift, was necessary to be done by him in order to transfer the property and
which it was in his power to do.'
52. Thus the concept of gifts is divided into two categories. For gifts inter vivos the owner of the property
or assets donates it to another person, without expectation of death. In any event the person who
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makes such a gift must have the capacity to competency to gift the property and the gift must be
perfected. The gift must also go into immediate and absolute eect. It is also well established that where
the gift has been made, delivery to the beneciary is necessary to consummate the gift. Further, it is
fundamental to understand the intention of the parties and their acts done sucient to establish the
passing of the gift to the donee.
53. Secondly for the test of a gift cause mortis, such a gift is made in contemplation of death. The donor
causes the property or goods in his possession to be delivered to another. The general distinction
between gift causa mortis and a gift inter vivos is that it’s revocable by the donor and the capacity of the
donor must meet the requirement under section 11 of the Law of Succession Act in the making of a will.
54. The Appellant rst and foremost failed to plead and prove that indeed LR Ngariama/Kabare/421 was
gifted to him inter vivos during the lifetime of his father. It was not proved that the deceased eected
any instrument in writing or made a declaration by way of trust in favour of the appellant and nally
since it was registered land, no registered transfer was eected in the appellants favour for gift inter
vivos to be completed and be valid.
55. From the emerging facts the contrary was established. The deceased Ndiga Njagi gifted his children
land in expectation of death (gift causa mortis). He had seven children and sub-divided his land in seven
equal portion of one acre each for each child. He then proceeded to transfer some of the titles during his
lifetime. The appellant, Joseph Mbute Makanga, James Gachoki Makanga and Maculate transferred
their portion during their father’s lifetime, while Francis Njogu, James Gachoki and T Jimmy Makanga
had not transferred their portion. Finally if indeed the deceased Ndiga Njogu had intended to gift the
appellant LR Ngariama/kabare/421, question that would arise is why he did not transferred the same
to him, when he was eecting transfer of LR Ngariama/kabare /417 to the appellant. Nothing would
have been easier than to eect both transfers simultaneously for the gift to be complete.
C) Did the trial magistrate err in law and misunderstand the legal principles involve in Law Of
Succession act which deals with distribution of the estate of the deceased
56. The appellant submitted that the trial magistrate misapplied provision of Section 35 38 and 40 of
the Law of Succession Act while eecting distribution of the estate, and thus misinterpreting the law.
Further he submitted that since the suit property LR Ngariama/Kabare/421 had been gifted to him
and all other sibling had never questioned his unhindered use of the same from 1993 to date. Section
38 of the Law Of Succession Act was thus not applicable. Physical possession given to the Appellant was
clear intention of the fact that deceased wanted the applicant to be given the said parcel of land.
57. The appellant had in his adavit of protest pleaded that he was utilizing LR Ngariama/Kabare/412;
and extensively developed the same by planting tea bushes. While giving his evidence in chief, the
appellant stated that he had planted nappier grass and coee on the said parcel of land and restricted
James Gachoki from trespassing therein. It should be noted that the appellant did not testify that he
has had exclusive possession of the said parcel of land from 1993.That was never specied anywhere in
his adavit of protest and/or oral evidence.
58. The Respondent on the other hand testied that in 1993 the deceased Ndiga Njagi sub-divided his
land into seven portions and called all his children and showed them where each will utilize. Since
he was based in Nairobi. He left his father to utilize his portion of land bequeathed to him and they
later allowed the applicant to use it so that it doesn’t got to waste. PW2 James Gachoki Makanga and
PW3 Mugo Makanga supported the Respondent’s contention. They testied that it is their father who
initially used the suit parcel and planted tea, before later allowing the appellant to use it.
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59. The evidence on record does not in any manner support the appellant content that he had had exclusive
and unhindered use of the land from 1993 and was therefore entitled to the same. The evidence to the
contrary holds true that he was allowed to utilize the said parcel by his later father and the appellant.
Further having found that this property was not given to the appellant as a gift inter vivos, he has no
basis of claiming the same.
60. As regards the law, the trial magistrate did not error to use provision of section 38 to ensure that each
child of the deceased got their equal share of the estate property. The said section 38 in the context of
this appeal must be read together with provision of section 42 of Law Of Succession act, which allowed
previous benets to be brought into account. The trial court did not err in anyway by giving eect to
the deceased intention to create gift cause mortis and distributing the suit parcel to the Respondent
and his two other brothers who had not transferred their rightful share of the estate to themselves.
Disposition
61. Having considered and reviewed all the evidence and the ground of appeal raised I do nd that this
appeal has no merit. The same is dismissed with costs to the Respondent.
62. That costs are hereby assessed at Kshs 150,000/=
63. It is so ordered.
Right to Appeal 14 days.
JUDGEMENT WRITTEN, DATED AND SIGNED AT MACHAKOS THIS 25TH DAY OF APRIL
2023.
RAYOLA FRANCIS
JUDGE
Delivered on the virtual platform, Teams this 25th day of April, 2023.
In the presence of;
..........for the Applicant
..........for Respondent
..........Court Assistant
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