[2022] KEHC 1495 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

(Coram: Odunga, J)

CIVIL APPEAL NO. 115 OF 2019

IN THE MATTER OF THE ESTATE OF NZOLOVE KISUKE ALIAS DAUDI NZOLOVE KISUKE (DECEASED)

JOHN MAKAU NZOLOVE................................................................APPELLANT

-VERSUS-

JOHN KITHUKA DAVID NZOLOVE...................................1ST RESPONDENT

BERNARD MUSEMBI NZOLOVE......................................2ND RESPONDENT

JOSEPH JOMO DAUDI.........................................................3RD RESPONDENT

(Being an appeal from the judgement and order in Kangundo SPM’S Court (Hon. E. Agade SRM delivered on 8th August, 2019 in Kangundo Succession Cause No. 49 of 2017)

JUDGEMENT

1. Nzolove Kisuke alias Daudi Nzolove Kisuke (Deceased) passed away on 25th March, 2012 and a joint petition was presented before the Lower Court by both appellant and the Respondents herein in their capacities as the sons of the deceased. On 2nd October, 2017, a Grant of Letters of Administration Intestate was issued jointly to the said petitioners. By summons dated 4th September, 2018 supported by an affidavit sworn by the Appellant, he sought to have the grant confirmed in which he proposed that all the assets of the deceased be shared equally amongst the deceased’s sons.

2. That proposal was however objected to vide an affidavit of protest by the Respondents herein sworn on 12th November, 2018. According to the Respondents, the deceased had during his lifetime distributed part of has estate to his beneficiaries and even planted sisal to mark boundaries and they set out the particulars of the said distribution. It was averred that the said beneficiaries had since taken possession of their respective portions during the life time of the deceased and the said assets were awaiting transfer but the deceased died before he could effect the transfer hence the same do not form part of the Estate of the deceased. Accordingly, they objected to the summoned for confirmation in the manner proposed.

3. According to the Respondents, the Appellant was barred by the deceased from disturbing the family because during the lifetime of the deceased., the appellant had been abusing the deceased and at one point chased the deceased with an arrow prompting the deceased to assert that every one of his beneficiaries retain what he had given them.

4. It was their position that the only Kangundo/Mbilini/695 whose mode of distribution they proposed.

5. The Summons and the Protest were disposed of by way of viva voce evidence. John Githika testified that property number Kangundo/Mbilini/1529 was given to him, being the first born of the second wife and the 4th administrator. It was his evidence that everyone was staying on their allocated properties. That allocation was done by indicating the names of the respective beneficiaries at the back of the titles though those titles were never produced in evidence. It was however his evidence that the demarcation was evidenced by the planting of sisal on the respective portions. However, the properties remained in the names of the deceased who used to direct them where to build or cultivates.

6. The evidence of this witness was reiterated by Bernard Musembi Nzolove and added that the Chief knew where everyone’s property was. He however admitted that the Appellant’s portion as smaller but explained that the Appellant on two occasions chased him and the deceased with an arrow though he was quick to add that he loved the Appellant as his brother. It was his evidence that the first person to be showed where to build was the Appellant.

7. The foregoing evidence that the deceased divided his property in 1970 was also confirmed by Joseph Njomo Nzolove but added that his portion No. 752 was transferred to his name when the deceased was still alive and that is where he lives. There was however a small portion no. 695 that had remained and which they divided amongst themselves and everyone got a portion with the Appellant getting a smaller one due to the wrangles he had with the Deceased.

8. Martin Kioko, the deceased’s friend and neighbour and aged 87 years testified that he was very close to the deceased and in 1995, the deceased informed him that had distributed his property to his wives and sons and planted sisal on all the boundaries. He however did not see the list of distributions since the deceased did not show him the physical divisions. According to him each of the sons of the deceased was given a portion of the land and there was a small remaining portion with trees which they divided amongst themselves.

9. Fredrick Kioko, a former assistant chief, Mbilini, that one of the daughters of the deceased was married to his brother. According to him, the deceased had divided his properties amongst his wives and children leaving only a small portion. The daughters, however, were not given any property and they had no problem with the said distribution.

10. It was his evidence that they never used to write letters in administration matters. He was however, not present when the subdivision was being done by the deceased and the witness had nothing to prove the said subdivision.

11. On his part the appellant testified that what he was seeking from the court’s assistance in the equal distribution of the estate of the deceased since he had disagreed with the Respondents. According to him, the deceased never wrote a will and never transferred any land to anyone but just pointed out to them where to build and cultivate until he died. He denied the allegation that the deceased did not love him. In cross-examination, he explained that he had no objection to what the deceased had divided but was only unhappy because the other siblings being close to the deceased were given bigger portions. In his testimony his concern was that his children were being segregated against.

12. In her judgement, the learned trial magistrate found that the issue before her was whether the decease had distributed his land between his wives, children and grandchildren and that if that was the case, then his wishes had to be respected. If not then the estate ought to be distributed in accordance with section 40 of the Law of Succession Act. From the evidence, she found that each of the sons had been settled on the property on the portions occupied by them as shown to them by the deceased. She acknowledged that in the said distribution the Appellant was dealt a blow, a fact acknowledged by the Respondents but explained on the basis of the poor relationship between the deceased and the appellant.

13. The Court found that based on the evidence adduced by all parties, the deceased had, in his lifetime, demarcated the land on the ground by use of sisal fences and that there was no complaint during his lifetime about te manner in which he had settled his four sons. While appreciating that the evidence did not bring the deceased’s action within the ambit of an oral will, the court found that the evidence showed that the deceased had during his lifetime distributed his land to his beneficiaries which they all acknowledged and where they are all settled. By not objecting, the Court’s finding was that they obeyed what the deceased did. Relying on the case of Douglas Njuguna Muigai vs. John Bosco Maina Kariuki & Another, it was submitted that the blind application of section 40 aforesaid may be absurd.

14. The Court while appreciating the fact that the Appellant got a small portion compared to the Respondents noted that there was a portion of land that was free and remained unallocated by the deceased being Kangundo/Mbilini/695 which, in order to shrink the disparity, she directed that the unallocated portion thereof be given to the Appellant in addition to the portions he had been allocated by the deceased. Save for that she directed that the Deceased’s Estate be distributed in the manner proposed in the affidavit of protest in the following manner:

a.John Kithuka Nzolove – a total of 1. 495 HA

· 0. 065 HA of Kangundo/Mbilini/1491

· 1. 2HA of Kangundo/Mbilini/698

· 0. 16 HA of Kangundo/Mbilini/1341

· 0. 07 HA of Kangundo/Mbilini/1428

b.Joseph Jomo Nzolove – a total of 2. 774HA

· 0. 065 HA of Kangundo/Mbilini/1491

· 2. 109HA of Kakuzi/Ithanga/Gituamba Block 752

· 0. 6 HA of Kangundo/Mbilini/695

c.Bernard Musembi Nzolove – a total of 0. 76HA

· 0. 16 HA of Kangundo/Mbilini/1341

· Kangundo/Mbilini/1347 (no measurement provided)

· 0. 6 HA of Kangundo/Mbilini/695

d.Makau Nzolove – a total of 0. 87HA

· 0. 11 HA of Kangundo/Mbilini/1529

· 0. 16 HA of Kangundo/Mbilini/1489

· 0. 6 HA of Kangundo/Mbilini/695

15. Aggrieved by that decision, the appellant has preferred this appeal and he submits in support hereof that the same Court issued 2 conflicting certificates of confirmation of grant in terms of the distribution of the Deceased’s estate. This, according to the Appellant, shows lack of clarity on the manner in which the estate should be distributed.

16. It was the Appellant’s position that none of the Respondents produced any evidence to prove that the Deceased bequeathed his assets to any of them and neither did they produce any will to show that the Deceased bequeathed any asset to anyone prior to his death. It was submitted that there was no evidence in support of the contention that the Deceased sold all his shares and shared the proceeds therefrom with all his children including the appellant as alleged by the Respondents. According to the Appellant, having established that the Deceased indeed transferred Kangundo/Kikambuani/739 to the 3rd Respondent during his lifetime, it is questionable why the Deceased did not similarly transfer what he had allegedly distributed to the other Respondents prior to his demise.

17. The Appellant relied on the definition of free property in section 3 of the Law of Succession Act, and submitted that the Title Deeds to all the properties listed as having been distributed to the Respondents are still in the name of the Deceased. He also relied on the holding of the High Court in Re Estate of Biruri Kihoria (Deceased) [2019] eKLR, Re Estate of Godana Songoro Guyo (Deceased) [2020] eKLR,where the Court cited with approval Nyamweya J’s decision on the validity of incomplete gifts in ReEstate of the Late Gedion Manthi Nzioka (Deceased) [2015] eKLR,where she stated as follows:

“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). 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 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.”"

18. The Appellant also relied on Halsburys’ Laws of England, 4th Edition Volume 20(1) at paragraph 67 as cited in the Malindi Case where it states as follows with respect to incomplete gifts:

“Where a gift rests merely in promise, whether written or oral, or in unfulfilled 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 right to enforce the promise. A promise made by 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 and which it was in his power to do.”

19. From the foregoing, it was submitted that the distribution that was allegedly done by the Deceased prior to his death, if at all, can only be taken to be incomplete gifts to the Respondents, at best. The Deceased must have understood that a gift was only completed upon him having done everything necessary to be done by him in order to transfer the properties and this is so because the Respondents themselves have indicated that indeed the property known as Kangundo/Kikambuani/739 was transferred by the Deceased, during his lifetime, to the 3rd Respondent, Joseph Jomo Daud. This is a clear demonstration that the Deceased’s intention to transfer the said property was perfected by the said transfer. The Respondents have not offered any explanation as to why the Deceased allegedly distributed his properties in 1970 and died in the year 2013 without having bothered to similarly perfect his intentions in transferring the properties to those he wished. Neither executed transfer forms nor Land Control Board applications for consent to transfer were produced as evidence in support of the alleged intentions of the Deceased.

20. The Court was therefore urged to find that the Deceased’s assets were free properties as at the time of his death, forming part of his intestate estate and must then be administered according to the Law of Succession Act in the absence of a unanimous concurrence on the mode of distribution.

21. It was submitted that having established that the Deceased’s assets as listed in the Petition for Letters of Administration were all free properties that formed his intestate estate, it was submitted that no convincing evidence was produced by the Respondents in support of the alleged distribution. According to the Appellant, none of the witnesses called were present when the distribution was done and none could prove that the distribution had happened as per the Respondents’ allegations. Similarly, there was no evidence in support of the contention that the reason as to why the Appellant’s share was smaller than those of the Respondents was due to a sour relationship that existed between the Appellant and the Deceased prior to his demise. According to the Appellant, the testimonies of the Respondents together with their neighbours as presented before the Magistrate’s Court did not sufficiently prove that the Deceased distributed and bequeathed his assets to any of them.

22. In support of this submission the Appellant relied on Re Estate of Chesimbili Sindani (Deceased) [2021] eKLR,and Dan Ouya Kodwar vs. Samuel Otieno Odwar & another [2016] eKLR.

23. In view of the above, it was submitted that the learned Magistrate erred in law and in fact by finding the testimonies of the Respondents and their neighbours as sufficient to prove the Deceased’s wishes. This Court was urged to find that no distribution took place as alleged or at all, and to proceed to adopt the Appellant’s proposed mode of distribution as per the brief submissions that follow in that regard.

24. According to the Appellant, the Learned Magistrate erred in law and in fact in her determination of the final mode of distribution of the Deceased’s estate. It was submitted that the Learned Magistrate’s decision is unclear as to what principles of law guided either of the modes of distribution contained in the 2 conflicting certificates for confirmation of grant. It was his position that only in instances where parties have filed consents on distribution is the Court inclined to endorse the mode of distribution proposed so long all the persons beneficially entitled to the estate have concurred on the proposed mode. However, where there is no consensus, the Court is inclined to strictly follow the provisions of the law and he relied on Re Estate of Chesimbili Sindani (Deceased) [2021] eKLR,where the Court noted the following:

“The estate shall be distributed amongst all the children, regardless of their gender and marital status. There is no consent or consensus amongst the children on distribution, and, in the circumstances, I shall follow the position stated by the Court of Appeal in Justus Thiora Kiugu, & 4 Others vs. Joyce Nkatha Kiugu & Another [2015] eKLR (Visram, Koome and Otieno-Odek JJA), that where the parties filed consents on distribution, the court would have no reason not to endorse the distribution proposed, so long as the same had the concurrence of all the persons beneficially entitled, even if the proposed distribution departed from what the law provided on distribution. However, where there is no consensus, the court strictly applies the law.”

25. In the instant case, it was submitted that lack of consensus amongst the beneficiaries is part of the reasons leading to this Appeal. The Court was urged to therefore turn to the law and find that the Appellant and the Respondents are each entitled to an equal share of their Deceased’s father estate and that the grandsons can only benefit through their parents. The Appellant was however not opposed to the Court considering the already established structures in arriving at the final mode of distribution so long as each of the Deceased’s 4 sons gets an equal share of the intestate estate. He relied on Section 38 of the Law of Succession Act as the position that has been consistently taken by our courts in distribution of the Deceased’s estate where the beneficiaries cannot agree on the mode of distribution and he cited Re Estate of Godana Songoro Guyo (Deceased) [2020] Eklr (supra); Dan Ouya Kodwar v Samuel Otieno Odwar & another [2016] eKLR (supra)and Re Estate of Festo Lugadiru Abukira (Deceased) [2019] eKLR.

26. Based on the foregoing, the Appellant urged the Court to adopt the mode of distribution proposed by the Appellant, being that all the Deceased’s 4 sons should receive an equal share of the net intestate estate of the Deceased.

27. On their part, the Respondents submitted that during the hearing of the Protest, while being cross-examined, the Appellant told the lower court that the deceased had distributed his properties prior to his death. That this mode of distribution was influenced by the relationship his brothers had with their father. That his brothers were closer to their father than he was. It is on record that the Appellant did not have a habitable relationship with their father which prompted their father to allocate him land first. He told the court that he did not object to the mode of distribution rather he was objecting to the fact that his brothers were given bigger shares by their father and that the mode of distribution as per the Affidavit of Protest by the Respondents was meant to segregate him so that his children would suffer.

28. From the foregoing, it was submitted that itis clear that the deceased divided his properties prior to his death. All the beneficiaries took possession of their respective shares during the lifetime of the deceased and no one showed dissatisfaction when the deceased was alive. In these circumstances, it was submitted that the properties have since moved into the control of the beneficiaries as enlisted in the Affidavit of Protest filed in the lower Court and therefore do not form part of the estate of the deceased, they are therefore not free property of the deceased to be subjected to distribution.

29. According to the Respondents, only the Appellant is complaining, his complaint being that the property he was given by his father was smaller than what his brothers got. The Appellant’s intentions are to ignore the arrangement the deceased made in his lifetime where each of the beneficiaries took possession and developed. That he intends to mix them up thus removing them from properties they have occupied for more than 40 years and relocate them to places they have never lived on. Every beneficiary of the deceased has been provided for including some of the deceased’s grandsons. In the Respondents’ view, the Appellant seeks to remove the said grandsons from these portions they were given by the deceased.

30. According to the Respondents, the Appellant’s intention, by his admission during the hearing of the protest, is to get a bigger share so that he can give the same to his children. He testified that he does not object to the manner the deceased divided the property but that his brothers got bigger shares. By his words, he seeks from Court reasonable provision but came before the court seeking distribution of the estate of the deceased vide section 40. In the Respondents’ view, the proper provision of the law would have been section 26 of the Law of Succession Act which gives courts discretion to make reasonable provision to a dependant out of the Estate of the deceased. However, the court does not act suo moto, rather the Appellant ought to have sought the same by an Application brought under this section.

31. It was however submitted that the Appellant has not satisfied the requirements of section 28 in terms of furnishing this Court with information as to his past, present or future capital income and his existing and future means and needs. The Appellant was provided for by the deceased and it cannot be said that he has been left destitute. That a court’s jurisdiction to interfere with the wishes of the deceased with respect to distribution of his estate is to be exercised sparingly, such that a court can only interfere in extraneous circumstances. Normal preference of dependants is not grounds to interfere with the wishes if the deceased as the same is for the deceased’s own goodness and in support of this position reliance was placed on the decision of Musyoka, J in Re Estate of Lihasi Bidali (Deceased) eKLR.

32. It was therefore submitted that the requirements of section 26 have not been met and the same cannot be entered by this Honourable Court. The Court was urged to be guided by the provisions of Section 28, the evidence and circumstance of the case in determining the issue.

33. According to the Respondents, that the Honourable Magistrate interrogated the provisions of section 40 vis-à-vis the evidence before her and concluded that section 40 was not applicable as there was overwhelming evidence that indeed the deceased had distributed his estate to his beneficiaries prior to his death. Reliance was placed on In re Late Morogo A Mugun (Deceased) [2019] eKLRand the case of Douglas Njuguna Muigai v John Bosco Maina Kariuki & Another which noted the absurdity of a blind application of this provision of law and held that:

“[17] it is therefore evident, that, although section 40 of the Law of Succession Act provides a general provision for the distribution of the estate of a polygamous deceased person, the court has discretion to take into account factual circumstances of the particular case that may be relevant in ensuring equitable and fair distribution of the estate.”

34. The Respondents therefore, submitted that despite the fact that the deceased had not initiated the legal process of transferring the title deeds, he did give the beneficiaries, the original title deeds to their respective titles. His intention can be deduced from his actions. The witnesses called to give evidence on behalf of the deceased were well-known to the deceased and the parties herein and their evidence was thus credible.

35. As regards the said two certificates of confirmation, it was submitted that the initial Certificate of Confirmation of Grant dated 22nd August, 2019 was cancelled by the lower court as it departs from the Judgment of the lower Court and seeks to award the Appellant the entire parcel of land known as Kangundo/Mbilini/695. The said Certificate of Confirmation of Grant captured the wrong position and was meant to mislead the Court. The Appellant relied upon the said Certificate of Confirmation of Grant to threaten to evict the Respondents. This state of affairs prompted the Respondents to peruse the lower court file and it was discovered that the Certificate of Confirmation of Grant dated 22nd August, 2019 showed that Kangundo/Mbilini/695 was to be inherited by the Appellant solely. This position departed from the Judgment and order of the lower court and the court cancelled the said Certificate of Confirmation of Grant and issued the one dated 2nd September, 2019 which is in tandem with the decision and order of the lower court. Therefore, there is only one Certificate of Confirmation of Grant which is dated the 2nd September, 2019.

36. Further to the above, the judgment of the lower court did not award the entire parcel of land to the Appellant, instead, the Learned Magistrate awarded the remaining portion in that parcel of land to the Appellant. This is what an excerpt of the judgment reads with regard to the parcel of land known as Kangundo/Mbilini/695.

37. The Court was therefore invited to interrogate the matter from the genesis and the proceedings before the lower court and dismiss the appeal with costs to the Respondents.

Determination

38. I have considered the foregoing issues. In this appeal, the issue revolves around the interpretation and application of section 40 of the Law of Succession Act to the matter at hand which provision provides that:-

“Where an intestate has married more than once under any system of law permitting polygamy, his personal and household effects and the residue of the next intestate estate shall in the first instance, be divided among the houses according to the number of children in each house, but also adding any wife surviving him as an additional unit to the number of children.”

39. This provision has been the subject of various judicial pronouncements. The Court of Appeal in Scolastica Ndululu Suva vs. Agnes Nthenya Suva [2019] eKLRexpressed itself at paras 15-21 as hereunder:

“In Mary Rono vs Jane Rono & another (supra), Waki JA in the leading judgment, accepted the proposition that the Court had the discretion in ensuring a fair distribution of the deceased’s estate but that the discretion must be exercised judicially on sound legal and factual basis.…It is therefore evident, that, although section 40 of the Law of Succession Act provides a general provision for the distribution of the estate of a polygamous deceased person, the court has discretion to take into account factual circumstances of the particular case that may be relevant in ensuring equitable and fair distribution of the estate.”

40. It is therefore clear on judicial authority that the strict application of section 40 of the Law of Succession Act may well lead to an absurdity and I associate myself with the opinion of the Court of Appeal that the said section only provides a general provision for the distribution of the estate of a polygamous deceased person. However, the court has discretion to take into account factual circumstances of the particular case that may be relevant in ensuring equitable and fair distribution of the estate. It is my view that the relationship between the deceased and his beneficiaries as well as the age of the beneficiaries may well determine the mode of distribution in order to attain fairness.

41. In this case, it was agreed by the Appellant that the Respondents were closer to the deceased than himself. He did not expound what led to this closeness but the Respondents testified that the Appellant had a sour relationship with the deceased and at one point threatened to cause injuries to the Deceased. In cross-examination, the Appellant admitted that the Deceased had actually distributed his properties. His issue with the said mode of distribution was due to the fact that he ended up being “short-changed”. The mode of distribution according to the Respondents was by the Deceased pointing out to the respective beneficiaries’ portions of land where they were to build on and to cultivate. I agree that the mere fact that a person points out to his children portions of land to use does not necessarily amount to him divesting himself of the control thereof so as to remove the property from being his “free property” as defined in section 2 of the Law of Succession Act. In my view, unless there is evidence that the deceased intended to cede his control and rights over the distributed properties, the presumption would be that his act of pointing out the portions was just to give a right of user and not to transfer his rights thereon. This position is in tandem with the reasoning in Re Estate of Chesimbili Sindani (Deceased) [2021] eKLR,where the High Court at Kakamega had to say:

“…There was no gift inter vivosto any of the children of the deceased, and, therefore, the entire estate of the deceased comprises of free property available for distribution by the court in these confirmation proceedings. I am persuaded that the deceased had only licensed the sons to utilize certain assets, and as a result they had put up structures on those assets, any distribution of the assets ought to take into account those assets, and ensure that the particular sons are allocated shares in the parcels of land where they have put up structures.”

42. That reasoning resonates with the Court’s holding in Dan Ouya Kodwar vs. Samuel Otieno Odwar & another [2016] eKLR where the Court stated as follows:

“I agree that despite there being the presence of evidence of trees and sisal plants demarcating the land into three portions, that was done for the convenient use of the land which is a common practice in polygamous families but the land remained in the sole control of the deceased.

Whereas such demarcations are usually very useful in the distribution of land where the beneficiaries readily agree that may not be the position when the beneficiaries are not in agreement. I therefore find that the land forms the estate of the deceased and that the same was not sub-divided by the deceased in his lifetime and that no portion was owned exclusively by any of the three wives of the deceased. In the circumstances the land shall be distributed in accordance with the Act.”

43. To that extent, I agree with the opinion of the Court in Re Estate of Biruri Kihoria (Deceased) [2019] eKLR, where the Court while determining the rights of a purchaser who allegedly obtained title from the property gifted to the Respondent by the Deceased during his lifetime but without the passing of the title held that:

“[12]There is no gainsaying that the Suit Property belonged to the Deceased and that he was legally competent freely to dispose of it during his lifetime. The question to pose, however, is whether the Deceased's interest in the Suit Property was terminated by his death. A look at the Title Deed for the subject property, annexed to the Supporting Affidavit as Annexure "PRM 3a" shows that the property is still in the name of the Deceased; and that, since 23 September 1996 when the Title Deed was issued to the Deceased, no transaction has ever taken place in respect of the proprietorship of the property. What that means, to my mind, is that the Deceased's interest in the Suit Property was not terminated by his death; and that the property naturally became part of the Estate for administration purposes in line with the relevant provisions of the Law of Succession Act.

…...

[13]There may have been a clear intention on the part of the Deceased to give the Suit Property as a gift inter vivos to Teresiah Wambui Njiri, and he may have, for all practical purposes done so; noting that he handed over the Title Deed for the property to Teresiah Wambui Njiri. However, that gifting process was not completed during the Deceased's lifetime; the effect thereof being that, as at the date of his death, the property remained part of the Deceased's Estate.”

44. I also agree with the decisions in Re Estate of Godana Songoro Guyo (Deceased) [2020] eKLR, ReEstate of the Late Gedion Manthi Nzioka (Deceased) [2015] eKLR,and the opinion in Halsburys’ Laws of England, 4th Edition Volume 20(1) at paragraph 67 as expressing the general law on inter vivos gifts.

45. In this case however, there is evidence, both from the Respondents and the Appellants that the deceased did in fact subdivide his properties to his four children and they took possession of the same. One of the said properties known as Kangundo/Kikambuani/739 was transferred by the Deceased, during his lifetime, to the 3rd Respondent, Joseph Jomo Daud. The Appellant’s issue with the manner of the distribution is not that the Deceased had the power to do so or that the Deceased actually did the distribution, but that as a result of that distribution, he ended up with a smaller portion than the rest of his siblings. In my view, it is one thing to contend that there was no distribution of the Deceased’s properties during his lifetime at all and that what was done was just the licencing of the beneficiaries to utilise the assets, and another thing to admit that there was distribution but that the distribution was unfair. That seems to be the Appellant’s beef in this matter. In the latter case, I agree that the matter ought to be dealt with under section 26 of the Law of Succession Act which gives courts discretion to make reasonable provision to a dependant out of the Estate of the deceased.

46. I have considered the circumstances of this case and I find no reason to interfere with the Deceased’s clear intentions which were even admitted by the Appellant himself. He may have thereby caught the short end of the stick but an explanation was given for the same and this Court cannot substitute its discretion for that of the deceased. In my view the learned trial magistrate went out of her way to accommodate the Appellant by awarding the Appellant the part of parcel known as Kangundo/Mbilini/695 that remained unallocated in order to bridge the gap between him and his siblings. That was an attempt to make reasonable provision to the Appellant and his children notwithstanding the fact that that was not what the Appellant was seeking and no evidence was led to warrant the same in light of the relationship between the Appellant and the Deceased.

47. In conclusion, I find no reason to interfere with the decision of the Learned Trial Magistrate, a decision which I find to be legally and factually sound in the circumstances.

48. Accordingly, I dismiss this appeal but with no order as to costs taking into account the relationship between the parties herein.

49. It is so ordered.

READ, SIGNED AND DELIVERED IN OPEN COURT AT MACHAKOS THIS 16TH DAY OF MARCH, 2022.

G V ODUNGA

JUDGE

DELIVERED IN THE PRESENCE OF:

MISS TUM FOR THE RESPONDENT

MR NZIOKA FOR THE APPELLANT

CA SUSAN