https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1470

Nabea v Kaburu (Civil Appeal 87 of 2019) [2026] KECA 1470 (KLR) (24 July 2026) (Judgment) Neutral citation: [2026] KECA 1470 (KLR) Republic of Kenya In the Court of Appeal at Nyeri Civil Appeal 87 of 2019 S ole Kantai, P Nyamweya & A Ali-Aroni, JJA July 24, 2026 Between Catherine Muthoni Nabea Appellant and Winfred Kanario Kaburu Respondent (Being an appeal against the Judgment of the High Court at Meru (Gikonyo, J.) delivered on 3rd October, 2018inH.C. Succ. No. 826 of 2015) Judgment 1.This is a first appeal from the judgment of the High Court of Kenya at Meru (Gikonyo, J.) which held that the suit property, Plot 33 Maua Municipality also referred to as Plot 33 Maua Township, was a gift inter vivos from the deceased, George Kaburu, to the respondent (Winfred Kanario Kaburu). 2.Being a first appeal, our mandate is as stated in the case of Wagaki v Mathinji [2025] KECA 2189 (KLR):“Our mandate on first appeal is to re-appraise the evidence, draw inferences of fact and arrive at our own independent findings.” 3.We shall set out the facts and evidence as we exercise that mandate. 4.The suit at the High Court pertained to the distribution of the estate of M'Emenchu M'Akwalu alias George Kaburu (deceased). There was a dispute regarding the distribution of Plot No. 33 Maua Municipality while there were other properties of the deceased’s estate, which were not in contention namely land parcels Kiegoi/Kinyanka/1593, Kinyanka/Tumi/378 and other unspecified parcels in Arhiru Ruujine in Meru County. The deceased's surviving children and beneficiaries were identified as Winfred Kanario Kaburu (the respondent), John Kaburu, Samson Miriti, and Catherine Kaburu (the appellant), who are all siblings and children of the deceased. 5.The respondent herein applied for a grant of letters of administration initially with consent from the other beneficiaries, who would later turn around and file an objection to the making of the grant. On 20th July, 2016, the appellant and respondent were appointed co-administrators of the estate. 6.The main bone of contention was that the respondent sought to have Plot No. 33 Maua Municipality devolved wholly to her, stating that the property was a gift inter vivos from the deceased, claiming she developed the plot and had been utilizing it for over 10 years during the deceased's lifetime. She referred to a document written to a bank by the deceased dated 1st July, 2015, which confirmed the gift and showed that she single-handedly developed the premises and collected rent without objection for over 10 years. 7.The appellant opposed the respondent’s proposal, arguing that the said plot should be registered in the joint names of all beneficiaries, with the rental proceeds shared equally, minus 1% for renovations and land rates. She contended that there was no evidence of the property being a gift inter vivos and that the respondent merely managed and leased it under a power of attorney that lapsed upon the deceased's death, insisting that the plot was part of the deceased's estate. She proposed that Kiegoi/Kinyanka/1593 and Kinyanka/Tumi/378 be shared equally among John Kaberia Kaburu, Samson Mwiti Kaburu, Catherine Muthoni Kaburu, and Roy Gitonga Kaburu (a grandson to the deceased). 8.The High Court did not hear the matter by way of viva voce evidence but opted to rely only on affidavit evidence and written submissions. 9.The court delivered its judgment on 3rd October, 2018 where it held that the gift inter vivos was incomplete as the property was not registered in the respondent’s name but explained that an incomplete gift will not be enforced unless the donor's subsequent conduct gives the donee a right to enforce the promise. It further noted that subsequent acts included being put into possession, being told the land is a gift to build on, and expending money to build with the donor's assent. The court found that the respondent was given a letter dated 1st July, 2005, by the deceased, giving her full authority to construct the plot and permitting her to build, lease out, and receive payments as she deemed fit, with the building being fully financed and constructed by her. The court found that the respondent substantially or wholly contributed to the building's development, entered into lease agreement with Equity Bank, and collected rent for an uninterrupted period of close to 10 years without challenge. The court declared that Plot No. 33 Maua Municipality was a gift inter vivos by the deceased to the respondent, that her actions were expressly sanctioned by the deceased during his lifetime and that the said plot shall be transferred to her. 10.The court also held that the other non-contentious parcels namely Kiegoi/Kinyanka/1593, Kinyanka/Tumi/378 and all other residue properties be shared equally among the other beneficiaries (respondents’ siblings and a nephew). 11.Being dissatisfied with the High Court judgment, the appellant filed the present appeal. The record of appeal and memorandum of appeal are both dated 30th April, 2019 seeking to have the judgment of 3rd October, 2018 particularly in relation to plot No. 33 Maua Municipality set aside and be substituted with an order distributing the plot to all the beneficiaries equally and to have the rent shared equally among all beneficiaries. 12.In her grounds of appeal, the appellant contends that the Judge erred in finding that the land was given as a gift inter vivos without any tangible evidence and erred in making a finding that the respondent had single handedly developed the said plot. The court was accused of shutting out other beneficiaries and that the matter should have been determined through oral evidence for the Court to make an informed decision. It is the appellant’s position that the court arrived at the wrong decision and that the appeal should be allowed. 13.The appellant has filed submissions dated 7th May, 2024 in support of the appeal and argues that the respondent failed to discharge the burden of proof on particulars of the alleged gift. The appellant contends that the deceased filed a defence and counterclaim in Meru High Court Civil Suit No. 80 of 2006 challenging the alleged power of attorney and gift, which defence and counterclaim amounted to an unequivocal revocation of any purported gift. It is also urged that an imperfect gift will not be perfected by the court. The appellant concludes that the appeal has merit and prays that the decision of the High Court concerning Plot No. 33 Maua Municipality be set aside. 14.The respondent’s submissions are dated 14th November, 2025. She submits that the appeal is fatally defective for failure to seek leave, that the appeal was filed out of time and that the respondent’s evidence was uncontroverted. She states that the gift was proper though it was incomplete. She urges this Court to dismiss or strike out the appeal with costs. 15.This appeal was heard on 25th November, 2025 on the Court’s virtual platform. Learned counsel Mr. Ondari appeared for the appellant while learned counsel Mr. Kurauka appeared for the respondent. Both counsel opted to rely on their written submissions entirely. Mr. Ondari only highlighted one issue: namely that leave to appeal was obtained in 2018 for purposes of filing this appeal as seen on page 99 of the record of appeal. 16.We have considered the record of appeal, the submissions by the parties and the relevant law. 17.The crux of this appeal is only as regards who is entitled to Plot 33 Maua Municipality. The respondent herein filed an application dated 24th October, 2016 where she proposed to have that plot of land given wholly to her as it had been a gift inter vivos from the deceased. She proposed that her siblings equally receive the other properties of the estate. In rejoinder, the appellant filed another proposed mode of distribution where she asked the court to bequeath the said plot of land in the joint names of all beneficiaries equally with 1% of rental proceeds set aside for renovations and land rates. The issue at hand is whether the respondent had proved to the required standard that the said plot of land was a gift inter vivos given to her by her late father. 18.Gift inter vivos is a gift given during the lifetime of the deceased. It is contemplated under section 28(d) of the Law of Succession Act which provides that when making an order for distribution of an estate to dependants, the court shall give regard to any gift made to a dependant by the deceased during his lifetime. 19.Even in the present circumstances, the principle of law remains that he who alleges must prove. This Court in the case of Munyole v Munyole [2022] KECA 373 (KLR) clearly stated that:“In order for the court to conclude that a deceased person had made a gift inter vivos to a beneficiary, evidence must be led to this effect.” 20.Gifts inter vivos can be perfect or imperfect or can be termed as either being complete or incomplete. We echo the words of this Court in the case of Kagina v Kagina & 2 Others [2021] KECA 242 (KLR) where it was held:“We have revisited that rival position on the record and agree with the position taken by the Judge that a deceased person has capacity to divest himself of property during his lifetime known in law as gifts inter vivos which in the Judge’s opinion and correctly so in our view are not only protected under the Act but are also sanctionable by a court of law irrespective of whether they are perfect or imperfect. By perfect is meant, complete, meaning the transfer of the gift inter vivos in favour of the beneficiary was effected and completed during the lifetime of the deceased while by imperfect is meant the transfer of the gift in favour of the recipient was incomplete as at the time of the demise of the deceased. As correctly observed by the Judge, lack of completion of the process of transfer does not of itself render the gift inter vivos invalid. It can be perfected by the grant holder if there is no contest over it, or alternatively sanctioned by a court where proven.” 21.In order for the respondent to benefit from the claimed gift, she had to prove on a balance of probabilities that the gift was given to her and that the same was uncontested. Unfortunately, for the respondent, we find that the claim of the gift inter vivos was highly contested throughout the record of appeal. 22.The appellant filed for the court’s consideration, the pleadings in Meru High Court Case No. 80 of 2006. The suit was filed by the respondent against her father. She sought a declaration that the deceased held the said plot of land for her and that she was an equitable owner of the said land and a declaration be issued that she is entitled to be registered as the sole owner of the property. Her case was that the deceased gave her the land as a gift inter vivos sometime in 2002 but never transferred it to her though he gave her a power of attorney dated 28th November, 2005 allowing her to deal with the property pending the transfer. In the suit, the deceased filed a defence and counterclaim where he denied giving the suit property as a gift inter vivos and added that he equally contributed to the developments on the property. He denied that the respondent built him a house as compensation for the plot and also denied giving a power of attorney to the respondent and claimed that any such power of attorney was obtained fraudulently while he was unwell and bedridden. He accused the respondent of infringing on his property rights and counterclaimed that he is the sole owner of the property, a nullification of the power of attorney, nullification of a lease on the property and eviction of the respondent. The deceased passed on in 2010 before that suit was determined. 23.The respondent in her affidavit sworn on 8th October, 2017 stated that the deceased gave her the land as a gift in appreciation for paying for his heart treatment, which cost her over Kshs.6,000,000 over a period of 15 years. She also stated that he gave her a power of attorney, which allowed her to develop the land, which she did solely at a cost of more than Kshs.10,000,000 in addition to catering for various family members financial deeds. She did admit that she had no receipts for all these expenses, saying that they got lost. 24.The appellant stated in her affidavit sworn on 27th July, 2018, that the respondent had indeed helped the family severally financially but those actions were not in exchange for the suit property but were actions by a daughter to her family as custom demanded. She termed the respondent as being greedy, adding that their father helped develop the suit land but the respondent forged the power of attorney on record in order to enter into a lease with Equity Bank. 25.One Samson Miriti, a brother of the parties, in his affidavit sworn on 27th July, 2018, stated that the respondent forged a power of attorney in order to obtain a lease from Equity bank to develop their father’s property, and that this was done while their father was quite ill and incapable of making rational decisions. 26.We note with concern that the parties referred to a letter from the deceased to Equity Bank dated 1st July, 2005 stating that the respondent could use the land as she saw fit, and also referred to a power of attorney dated 28th November, 2005 by the deceased in favour of the respondent. However, none of these documents appear in the record of appeal for our consideration. The judgment of the High Court made reference to the letter and stated that it indicated the building was financed by the respondent and she was allowed to build further on the land. However, the High Court did not make reference to any power of attorney. 27.We are of the considered view that the respondent’s claim ought to have failed for two main reasons. Firstly, the respondent did not prove her case on a balance of probabilities. There is no proof of any agreement between the deceased and the respondent to take over ownership of the property, no proof that the respondent individually developed the property as she claimed. She had no documents at all to prove any expenditure and she did not displace the contention by the appellant that the plot of land had been developed much earlier by the deceased in the 1950s and that the respondent merely helped with renovating the buildings on the said plot of land. 28.Secondly, we have seen that the actions of the deceased during his lifetime did not support the contention that he gave away the land as a gift inter vivos to the respondent; he instead claimed in the defence and counterclaim that the respondent had forged documents and fraudulently attempted to take over ownership of the plot of land. 29.This Court in the case of Shah & Another v Shah [2024] KECA 76 (KLR) quoted with approval the words by the High Court, (Nyamweya J.) (as she then was)), in the case of Re: Estate of the Late Gedion Manthu Nzioka (deceased) [2015] eKLR where she stated as follows:“In Law, gifts are of two types gift inter-vivos and gifts made in contemplation of death (gifts Mortis Causa). For gifts inter-vivos, the requirements of law are that the said gift may be granted by deed, an instrument in writing, or by delivery, by a way of a declaration of a trust by the donor, or by way of resulting trusts or the presumption of gifts of land must be by way of registered transfer, or if the land is not registered it must be in writing or by a declaration of a trust in writing.”Section 38 of the Law of Succession Act provides:“Where an intestate has left a surviving child or children but no spouse, the net intestate estate shall, subject to the provisions of sections 41 and 42, devolve upon the surviving child, if there be only one, or shall be equally divided among the surviving children.” 30.We hereby find that the findings of the Judge in the impugned judgment were in error as the respondent never proved to the required standard any desire, intention or action by the deceased to give her Plot 33 Maua Municipality as a gift inter vivos. We find this appeal is merited and the same must succeed. The judgment of 3rd October, 2018 is hereby set aside. The grant of letters of administration is hereby varied to the extent that all the properties of the deceased will be shared equally amongst the beneficiaries as proposed by the appellant in the mode of distribution filed before the Judge.As the parties are close relatives let each party meet their own costs. DATED AND DELIVERED IN NYERI THIS 24TH DAY OF JULY, 2026.S. ole KANTAIJUDGE OF APPEAL........................................**P. NYAMWEYA*JUDGE OF APPEAL........................................ALI – ARONIJUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR