[2023] KEHC 25291 (KLR)

In re Estate of Benson Mungai Ngotho (Deceased) (Succession Cause 771 of 2001) [2023] KEHC 25291 (KLR) (Family) (10 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25291 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause 771 of 2001

MA Odero, J

November 10, 2023

IN THE MATTER OF THE ESTATE OF BENSON MUNGAI NGOTHO (DECEASED)

Between

Jecinta Nguhi Mungai

Applicant

and

Lydia Njeri Mungai

1st Respondent

Catherine Wangui Mungai

2nd Respondent

Ruling

1. Before this Court for determination is the summons dated 16TH June 2022 by which the Applicant Jecinta Nguhi Mungai seeks the following orders:-“1. Spent.2. That this Honourable Court be pleased to order the 1st and 2nd Respondents here execute all the necessary documents to effect transfer of LR No. 140/30;3. That further or in the alternative to Order 2 above this Honourable Court do grant Deputy Registrar authority to execute all the necessary documents to effect transfer of land LR No. 140/30 in favour of the relevant government body;4. That upon execution by the Deputy Registrar of this honourable court in order 3 the same be deemed as sufficient instrument for completion/transfer documents.5. That the cost of this application be provide for.”

2. The Application which was premised upon Section 47, 83 (f) and (g) of the Law of Succession Act Cap 160 Laws of Kenya and Rules 49 and 73 of the Probate and Administration Rules and all other enabling provisions of law was supported by the Affidavit of even date sworn by the Applicant.

3. The 1st and 2nd Respondent Lydia Njeri Mungai and Catherine Wangui Mungai both filed a Replying Affidavit dated 27th September 2022 opposing the application. The matter was canvassed by way of written submissions. The Applicant filed written submissions dated 13th March 2023 whilst the Respondents relied upon their written submissions dated 3rd April 2023.

Background 4. This Succession Cause relates to the estate of the late Benson Mungai Ngotho who died intestate on 17th July 2000. The Applicant and the 1st Respondent are both widows of the Deceased whilst the 2nd Respondent is a Daughter-in-law of the Deceased.

5. Amongst the assets left behind by the Deceased was the parcel of land known as L.R No. 140/2 Limuru Eastcomprising of 61. 5 acres (hereinafter the ‘suit property’).

6. Following the demise of the Deceased Grant of Letter of Administration Intestate were on 24th May 2017 issued to the parties herein. That Grant was duly confirmed vide the Amended Certificate of Confirmation of Grant dated 28th May 2018. On 7th November 2019 the suit property was transmitted into the names of the three Administrators of the estate. As per the confirmed Grant the suit property was to be sub-divided and distributed in various shares to the beneficiaries of the estate.

7. The Applicant avers that prior to his demise the Deceased had initiated the sub-division of the suit land and that the Deceased had voluntarily assigned/donated ¼ acre to the Government of Kenya to be utilized for road access and to put up a Police Post.

8. That despite acknowledging this donation by the Deceased for purposes of construction of a Police Post, the other Administrators have refused and/or declined to execute the necessary documents transferring this portion of the suit land to the Government.

9. That the Respondents are being duplicious in demanding that the County Government allocate funds for the construction of the Police Post, yet the same Respondent have declined and/or refused to transfer the suit land to the County Government to facilitate said allocation of funds.

10. The Applicant complains that despite insecurity being rife in that area of Karambaini East the County Commissioner cannot proceed to authorise the construction of the Police Post until the transfer is effected.

11. That the Respondents are by their actions frustrating the intention of the Deceased to donate this land. Hence the present application seeking orders to compel the Respondents to execute the necessary transfer documents and in the alternative the Hon. Deputy Registrar be authorized to execute the same.

12. On their part the Respondents concede that the suit property being L.R No. 140/30 (original title 140/2/180 located on Karambaini East was to be registered in the joint names of the three Administrators. The Respondents further conceded that the Deceased did verbally make a gift of 1. 4 acre to the government for purposes of constructing a Police Post.

13. The Respondents state that it later became apparent that the relevant government authorities intended to use the donated land for construction of a hospital and not a Police Post as intended by the Deceased. Hence the reluctance by the Respondents to transfer the said parcel of land to the County Government.

Analysis and Determination 14. I have carefully considered the application before this court, the Replies filed thereto as well as the written submissions filed by the parties. The only issue for determination is whether the Respondent /Administrators ought to be compelled to sign documents to transfer this ¼ acre parcel of land to the County Government of Kiambu.

15. It is common ground that the Deceased prior to his demise expressed an intention to donate the said parcel of land to be used for construction of a Police Post.

16. However, it is important to note that this wish or desire of the Deceased was not reduced into writing. In other words the Deceased did not leave a written Will setting out this intention to donate the suit land.

17. It is also important to not that during his lifetime the Deceased did donate a parcel of land to St. Paul ACK Githembe for construction of a church. This gift was perfected by the Deceased and he did infact transfer the property to the church. In this case all that exists is a mere intention and the Deceased took no steps to actualize this gift e.g. by signing the relevant, transfer documents himself.

18. In Re Estate for the Late Gideon Manthi Nzioka (deceased)[2015] eKLR the court observed that:“…In law, gifts are of two types. There are gifts made between living persons (gifts intervivos) 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 contemplation of death:“For gifts inter vivos, the requirements of law are that the said gifts may be granted by deed, an instrument in writing or by delivery, by way of declaration of trust by the donor, or by way of presumption of gifts of land must be by way of registered transfer or if the land is not registered it must be in writing. Gifts intervivos must be complete for the same to be valid.” [own emphasis]

19. On the incomplete gifts, the Halsbury’s Laws of England state that:-“Where a gift rests merely in promise whether written or oral, 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 done a right to enforce the promise. A promises made by the deed is 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 an which it was in his power to do.” [own emphasis]

20. In CainvMoon [1896] 283 Lord Russel held that:-“… for effectual donation mortis causa three things must combine. First, the gift or donation must have been made in contemplation, though not necessarily in expectation, of death, secondly there must have been delivery to the donee of the subject matter of the gift, and thirdly, the gift must be made under such circumstances as slew that the thing is to revere to the donor in case he should recover.” [own emphasis]

21. The duty of a Probate Court is facilitate and supervise the distribution of the estate to of a Deceased person to the genuine heirs. By all accounts the estate of the Deceased herein has been fully distributed save for this contentious ¼ acre of land.

22. The County Government of Kiambu are not heirs to the estate of the Deceased. The Deceased did not leave a written Will detailing his desire to donate this parcel of land to the government. The wishes allegedly expressed by the Deceased did not constitute an oral Will. Given that the Deceased took no concrete steps to perfect the gift of this suit land, that intention cannot be enforced by the court.

23. In the circumstances I find that the decision of whether or not to transfer the said parcel of land to the Government is not one which this court ought to make. The decision rests entirely with the family of the Deceased. Beneficiaries should desist from dragging the courts into what are essentially family squabbles.

24. I therefore find no merit in this application. The same is dismissed in its entirety. Costs will be met by the Applicant.

DATED IN NAIROBI THIS 10TH DAY OF NOVEMBER, 2023. .................................MAUREEN A. ODEROJUDGE