[2022] KEHC 14653 (KLR)

In re Estate of Janet Kainda M’riria (Deceased) (Succession Cause 65 of 2016) [2022] KEHC 14653 (KLR) (3 November 2022) (Ruling)

Neutral citation: [2022] KEHC 14653 (KLR)

Republic of Kenya

In the High Court at Meru

Succession Cause 65 of 2016

TW Cherere, J

November 3, 2022

Between

Rael Kanana Marete

Petitioner

and

Festus Mwirigi

Protestor

Ruling

1. Janet Kianda M’riria(Deceased) died on June 10, 1988. She was survived by Rael Kanana Marete (daughter) and her estate comprised of ½ of LR Ntima/ntakira/565 and ksh 1,557,200/- payable by National Land Commission.

2. Letters of administration were issued to Rael Kanana Marete on July 28, 2016 but before the grant could be confirmed, Festus Mwirigi filed a protest on June 27, 2020 on the ground that deceased had gifted him her share in ½ of LR Ntima/ntakira/565.

3. Arising from the protest, the court directed that the matter be disposed off by way of viva voce evidence.

Protestor’s case 4. Festus Mwirigi stated that deceased who was sister to his mother was survived by her daughter Rael Kanana Marete. He stated that his father Mugania M’Riria and deceased owned ½ each of LR Ntima/ntakira/565 and that his claim was based on the ground that deceased had gifted him her share of the said land. In support thereof, he placed reliance on an undated transfer form bearing his name and that of the deceased. He urged that deceased’s estate be shared equally between him and the Petitioner.

Petitioner’s case 5. Petitioner testified that she was daughter to the deceased and that protestor was unknown to her. She denied that she was aware that deceased had given his land to the protestor.

Analysis and Determination 6. I have considered the evidence on record. The gravamen of this protest revolves around distribution deceased’s estate comprising of ½ share of LR Ntima/ntakira/565 registered in the name of the deceased and I have deduced the issue for determination as hereunder:1Who survived the deceased2. Whether deceased gave her ½ share of LR Ntima/ntakira/565 to protestor as a gift inter vivos3. Who is entitled to deceased’s estate

Who survived the deceased 7. Both parties agree that deceased was survived by her daughter Rael Kanana Marete (Petitioner).

Whether deceased gave her ½ share of LR Ntima/ntakira/565 to protestor as a gift inter vivos 8. In law, gifts are of two types. There are the gifts made between living persons (gifts inter vivos), and gifts made in contemplation of death (gifts mortis causa).

9. In re Estate of the Late Gedion Manthi Nzioka (Deceased) [2015] eKLR, the court held that: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 way of a declaration of 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 trust in writing. Gifts inter vivos must be complete for the same to be valid. In this regard it is not necessary for the donee to give express acceptance, and acceptance of a gift is presumed until or unless dissent or disclaimer is signified by the donee. (Emphasis added).

10. From the foregoing, it is apparent that unless, there is a complete giftinter vivos, the estate of the deceased person remains for distribution in accordance with the provisions of the Law of Succession Act.

11. In support of his claim that deceased gave him her ½ share of LR Ntima/ntakira/565 to protestor as a gift inter vivos, protestor relied on an undated transfer form bearing his name and that of the deceased.

12. There is no doubt that the alleged gift to the protestor incomplete and his claim over the deceased’s estate based on an incomplete gift is therefore untenable.

Who is entitled to deceased’s estate 13. Section 38 of the Law of Succession Act provides:“Where an intestate has left a surviving child or children but no spouse the net estate shall subject to the provisions of section 41 and 42 devolve upon the surviving child, if there be only one or shall be equally dived among the surviving children.”

14. InChristine Wangari Gichigi v Elizabeth Wanjira Evans & 11 others(2014) eKLR the court held that:“Under section 38 of the Act all that one needed to establish in this cause was to show that they were either children or grandchildren of the deceased.

15. Unlike the petitioner, protestor is not a child of the deceased and as a nephew is disentitled to deceased’s estate.

16. In the end, the orders which commends to me and which I hereby issue are That:1. Deceased was survived by the petitioner Rael Kanana Marete2. There is no evidence that deceased gave her ½ share of LRNtima/ntakira/565 to protestor as a gift inter vivos3. ½ share of LR Ntima/ntakira/565 shall wholly be distributed to Rael Kanana Marete4. Each party shall bear its own costs

DATED AT MERU THIS 03RD DAY OF NOVEMBER 2022WAMAE. T. W. CHEREREJUDGEAppearancesCourt Assistant - Morris KinotiFor Petitioner - Mr. Muchomba for Kiogora Mugambi & Co. AdvocatesFor Protestor - Mr. Muthomi for John Muthomi & Co. Advocates