https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1018

Porter (Suing on behalf of the Estate of Arthur Thomas Porter) & 3 others v Bixby Ltd & 3 others (Civil Appeal E881 & E910 of 2023 (Consolidated)) [2026] KECA 1018 (KLR) (29 May 2026) (Judgment) Neutral citation: [2026] KECA 1018 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal E881 & E910 of 2023 (Consolidated) W Karanja, LA Achode & WK Korir, JJA May 29, 2026 Between Emma Adina Porter (Suing on behalf of the Estate of Arthur Thomas Porter) 1st Appellant Emma Adina Porter 2nd Appellant and Bixby Limited 1st Respondent Mary Wanjiru Kihori 2nd Respondent Akidele Daniel Porter 3rd Respondent As consolidated with Civil Appeal E910 of 2023 Between Bixyby Limited 1st Appellant Mary Wanjiku Kihori 2nd Appellant Akidele Daniel Porter 3rd Appellant and Emma Adina Porter (Suing on behalf of the Estate of Arthur Thomas Porter) 1st Respondent Emma Adina Porter 2nd Respondent (Being an Appeal from the Judgment and Decree of the Environment and Land Court at Nairobi (EWabwoto, J.) delivered on 30th August 2023 in ELC Case No. 116 of 2019 Environment & Land Case 116 of 2019 ) Judgment 1.Before us is a consolidated appeal arising from a long-standing dispute concerning the property known as Title No. I.R 19139, Land Reference No. 209/5919/8 situated along Manyani Road in Nairobi (the suit property). Civil Appeal No. E881 of 2023 (E881 of 2023) was consolidated with Civil Appeal No. E910 of 2023 (E910 of 2023) by an order issued by the Court on 17th February 2025, with Civil Appeal No. E881 of 2023 being designated the lead file. Through the same order the appellants in E881 of 2023, who are the respondents in E910 of 2023, being Emma Adina Porter, (suing on behalf of the Estate of Arthur Thomas Porter) and Emma Adina Porter were designated as the appellants while the respondents in E881 of 2023 being Bixby Limited, Mary Wanjiku Kihori and Akidele Daniel Porter, who are the appellants in E910 of 2023, were baptized cross- appellants. For convenience and in order to avoid confusion, we shall henceforth refer to the parties as designated in the said order. 2.The appellants were the plaintiffs at the trial. The 2nd appellant is also the 1st appellant by virtue of being the administratrix of the estate of Arthur Thomas Porter (“the deceased”). Their case was that the suit property was registered in the name of the deceased, who had acquired it in 1967. In his later years, the deceased resided in Canada. They averred that the deceased intended to transfer the suit property to his daughter, the 2nd appellant, as evidenced by a sale agreement dated 2nd December 2015. According to the 2nd appellant, she took care of the deceased in his sunset years, covered his medical and living expenses, and as a result, the deceased and herself executed the sale agreement dated 2nd December 2015 and undated transfer forms. The appellants relied on the sale agreement dated 2nd December 2015 and the undated transfer forms as evidence of the deceased's intention to vest the suit property in the 2nd appellant. 3.It was also the appellants’ case that the cross-appellants obtained the original title deed fraudulently and that the cross-appellants’ 2014 transfer documents were forgeries, pointing to the Land Registrar’s rejection of the cross-appellants’ transfer due to inconsistencies in the deceased’s signatures as proof of forgery. Additionally, the appellants claimed that the cross-appellants had been illegally collecting monthly rent amounting to Kshs. 275,000 per month from the property since 2012, and sought an order for the accounting and surrender of these funds. The appellants also sought Kshs. 116,000 as special damages, supported by a valuation report and fee note, being expenses incurred in the valuation of the suit property. 4.Conversely, the cross-appellants (who were the defendants at the trial) contended that the deceased had gifted the suit property to them in 2014. They relied on a transfer instrument dated 26th May 2014, signed by the deceased and witnessed by a Canadian Notary Public, Evgeny Kozlov. They further averred that the deceased had voluntarily surrendered the original title document to them to facilitate registration. The cross-appellants asserted that the deceased had willfully and voluntarily gifted the property to their family company, Bixby Limited, on 26th May 2014. They argued that the gift was complete because the deceased had signed the transfer instruments and willingly handed over the original title deed and possession to the 3rd cross-appellant to facilitate registration. 5.The 3rd respondent admitted to the collection of rent over the suit property. The cross-appellants attributed the lack of registration to external factors, including a caveat placed by the UK Secretary of State and the Land Registrar's requirement that the deceased appear in person to verify his signature, a process they claimed was frustrated by the 2nd appellant's concealment of the deceased's whereabouts. The cross-appellants maintained that no fraud had occurred, relying on the testimony of DW2 Evgeny Kozlov, the Canadian Notary Public, who testified that he witnessed the deceased sign the transfer after verifying his identity. The cross-appellants insisted that the property was family property. 6.In arriving at its decision, the trial court identified four salient issues for determination: the validity of the gift inter vivos; allegations of fraud; entitlement to relief; and costs. In finding that the gift inter vivos was incomplete, the trial court held that failure to transfer the title to the 1st cross-appellant prior to the death of the donor defeated the gift. However, the learned Judge found no evidence of fraud or forgery by the cross-appellants. The trial court also declined to grant the appellants’ prayers for an account of the rental income, holding that the appellants had not laid any basis for the cross-appellants to account for and surrender rental income collected since 2012. Similarly, the trial Judge did not award the Kshs. 116,000 valuation fees, effectively dismissing it through a blanket order declining any relief not expressly granted. With regard to the cost attendant to the suit, the learned Judge ordered the parties to meet their own costs. In conclusion, the court issued a permanent injunction restraining the cross-appellants from dealing with the property; a mandatory order for the surrender of the original title deed; and an order for the cross-appellants to grant vacant possession to the appellants within 90 days. 7.Being dissatisfied with the judgment of the court, the appellants lodged Civil Appeal No. E881 of 2023 raising seven grounds of appeal, which in summary are that the learned Judge erred in law and fact: by ordering that all reliefs not expressly granted be denied;failing to weigh evidence showing the cross-appellants had been illegally collecting rent for over 11 years, and not ordering them to account for, and surrender the rental income of Kshs. 275,000 per month; failing to consider or address the claim for Kshs. 116,000, which represented the costs incurred for the valuation of the suit property; and, directing each party to meet its own costs instead of awarding costs of the suit to the appellants. 8.Consequently, the appellants prayed for orders that: the appeal be allowed in its entirety; that the portion of the judgment that declined additional reliefs and costs be set aside; that an order be issued directing the 3rd cross-appellant to account for and surrender all rental income collected from 2012 to date, together with interest; that the appellants be awarded the costs of valuation of Kshs. 116,000; and that the appellants be awarded the costs of both the appeal and the trial. 9.In Civil Appeal No. E910 of 2023, the cross-appellants being aggrieved by the judgment of the trial court raised seven grounds of appeal, which we condense as follows: that the learned Judge erred in law by holding that the gift inter vivos was invalid and incomplete simply because it was not registered during the deceased’s lifetime;considering the issue of non-registration which was not pleaded and only arose during submissions; failing to adhere to binding and persuasive authorities; misapprehending the ratio decidendi in decided cases; contradicting himself by finding that fraud was not proved and that the deceased had indeed signed the transfer documents in the presence of a Notary Public while at the same time holding the transfer to be invalid; and, failing to consider whether Emma Adina Porter proved her claim of having purchased the property in consideration for medical expenses. In the alternative, they contended that if the learned Judge believed the gift was incomplete, he should have declared the property part of the deceased’s estate and referred the matter to the High Court for distribution of the property under the Law of Succession Act (Cap 160) and that by ordering the surrender of the title, the trial court deprived Akidele Daniel Porter of his right to pursue his share through proper succession proceedings. They, therefore, prayed that their appeal be allowed, the judgment and decree of the Environment and Land Court be set aside in its entirety, and substituted with an order dismissing the appellants’ suit. 10.When the appeal came up for hearing, learned counsel Mr. Steve Kimathi appeared for the appellants. For the cross-appellants, learned Senior Counsel Kamau Karori appeared, leading learned counsel Mr. Musyoka and learned counsel Ms. Muthee. All counsel having filed written submissions sought to rely on the same, accompanied by oral highlights in plenary. 11.In support of their appeal and in opposition to the cross-appeal, the appellants submitted that the suit property belonged to the deceased, who intended to transfer it to his daughter to cover his medical and assisted living expenses in Canada. They relied on a sale agreement dated 2nd December 2015 and undated transfer forms as proof of this intent. They argued that the cross-appellants obtained the original title deed fraudulently and that the 2014 transfer documents, which they relied upon, were forgeries. They pointed out that the Land Registrar had previously rejected the cross-appellants’ transfer based on signature inconsistencies. 12.Turning to the question of rent, the appellants submitted that the cross-appellants had been illegally collecting rent from the property since 2012. They sought an order for the cross-appellants to account for and surrender all rental income, which they claimed the 3rd cross- appellant admitted was approximately Kshs. 275,000 per month. 13.Regarding the expenses incurred in the valuation of the property, the appellants submitted that the trial Judge erred by failing to award the Kshs 116,000 incurred for the valuation of the property. They asserted that this claim was pleaded and proved through a valuation report and fee note, thereby meeting the standard for award of special damages. In urging that they had proved their claim for special damages, the appellants cited Herbert Hahn vs. Amrik Singh [1985] KECA 68 (KLR) to reiterate the principle that special damages must be claimed specifically and proved strictly. 14.In seeking to overturn the order directing the parties to meet their own costs of the suit, the appellants submitted that since their suit partially succeeded at the trial level, they were the successful party and they should have been awarded costs since costs follow the event. Buttressing the foregoing submission, the appellants cited section 27 of the Civil Procedure Act and the principle in Supermarine Handling Services Ltd vs. Kenya Revenue Authority [2010] KECA 373 (KLR) that reasons must be given for failing to award costs to the successful plaintiff, arguing that the trial Judge failed to provide good reasons for depriving them of costs. Also cited is Punchlines Limited vs. Joseph Mugo Kibaria & 10 Others [2018] eKLR for the principle that costs follow the event unless the court or Judge shall, for good reason, otherwise order. Citing the holding in Mbogo vs. Shah [1968] EA 93 that an appellate court can interfere with the discretion of the trial court in certain circumstances, the appellants urged the Court to interfere with the erroneous exercise of discretion by the learned Judge. 15.During the hearing, counsel for the appellants indicated that the appellants were limiting their appeal to the failure by the trial court to award the expenses incurred in the preparation of the valuation report and the costs of the suit. 16.In opposition to the appellants’ appeal and in support of their appeal, the cross-appellants submitted that the deceased had willfully gifted the property to them through their family company, Bixby Limited, on 26th May 2014. Counsel argued that the gift was complete because the deceased had signed the transfer and voluntarily delivered the original title deed. Counsel further submitted that the only reason registration had not occurred was due to external factors, specifically a caveat lodged by the UK Secretary of State, which had since been lifted, and a signature dispute raised by the Land Registrar. According to counsel, the donor, having done everything in his power to effectuate the gift, it should have been presumed to have been completed. It was also counsel’s submission that the allegations of fraud were not proved and that the claim for rental income was denied, while the appellants failed to prove an agency agreement or ownership interest that would entitle them to the rent. Counsel reiterated that the fees for the valuation report could not be awarded because the valuer was never called as a witness for cross- examination. 17.Buttressing these submissions, counsel referred to John Richard Okuku Oloo vs. South Nyanza Sugar Co Ltd [2013] KECA 73 (KLR) to point out the requirement that special damages must be specifically pleaded and proved, and argued that the appellants had failed to meet the threshold. Reference was made to Pithon Waweru Maina vs. Thuka Mugiria [1983] eKLR to appreciate the need for an appellate court to restrain itself from interfering with the exercise of discretion by a trial court. The decision in In Re Estate of Chesimbili Sindani (deceased) [2021] eKLR was cited to set out the requirements for a gift inter vivos to be deemed valid and to assert that conditions were indeed met by the cross-appellants. 18.When arguing the appeal before us, learned Senior Counsel Mr. Kamau Karori stressed two jurisdictional issues: first, that the suit was defective for being filed by a deceased person, and secondly, that the learned Judge determined issues that were not raised in the pleadings by the parties. On the first issue, counsel submitted that the suit was filed on 28th March 2019, two days after the then 1st plaintiff, Arthur Thomas Porter, had passed way on 26th March 2019 and that this fact was concealed from the trial court and the defendants until the application for substitution was made in October 2019, several months later. According to counsel, the suit was, therefore, a nullity. On the second issue, counsel submitted that in their plaint, the appellants had only placed two issues before the trial court; alleged fraud and forgery, and a claim for rental income. Counsel argued that the learned Judge, having dismissed the appellants’ claim on the two issues in its entirety, erred by embarking on the question as to whether the gift inter vivos to the cross- appellants was complete. It was counsel’s contention that the issue of the validity of the gift inter vivos, having only been raised in the submissions and not the pleadings, was not available for the learned Judge’s consideration. 19.In response to these issues, counsel for the appellants protested that the issue of the suit being filed by a deceased party was being raised for the first time before this Court and that had he been given a chance to respond to the issue before the trial court, he would have explained that the deceased was alive at the time the plaint was submitted to the trial court. Further, that there were two plaintiffs in the claim, and the suit therefore survived the deceased. In reply to the cross-appellants’ assertion that the issue of the invalidity of the gift inter vivos was not raised in the appellants’ pleadings, counsel argued that the issue was indeed raised in the appellants’ pleadings. 20.After carefully considering the record of appeal, the appeals by the parties, the submissions by the parties, the authorities cited, and the law, the issues we identify for determination are:a.Whether the appellants’ claim was defective for being brought by a deceased party;b.Whether the learned Judge determined matters not pleaded by the parties;c.Whether the learned Judge erred in law in holding that the alleged gift inter vivos of the suit property was invalid and incomplete for want of registration during the deceased’s lifetime;d.Whether, having found that the alleged gift inter vivos was incomplete, the learned Judge erred in granting substantive proprietary reliefs instead of referring the matter for succession proceedings under the Law of Succession Act;e.Whether the learned Judge misdirected himself by failing to consider, determine, or properly apply the law to the appellants’ claim that the suit property was sold to the 2nd appellant pursuant to the sale agreement dated 2nd December 2015;f.Whether the learned Judge erred in law and fact in finding that allegations of fraud and forgery against the cross- appellants were not proved to the required standard;g.Whether the learned Judge erred in declining to order an account and surrender of rental income collected from the suit property;h.Whether the learned Judge erred in law by failing to consider and determine the appellants’ claim for special damages in the sum of Kshs. 116,000 being valuation expenses;i.Whether the learned Judge properly exercised his discretion in ordering that each party bear own costs, contrary to the general principle that costs follow the event; andj.What orders ought to issue on the costs? 21.This being a first appeal, this Court is enjoined to re-evaluate, re- assess, and re-analyze the evidence on record in order to arrive at its own independent conclusions. In doing so, the Court should always bear in mind that it does not have the advantage of the trial court, which saw and heard the witnesses testify. This duty is well settled and was succinctly expressed by the Court in the celebrated case of Selle & Another vs. Associated Motor Boat Co Ltd & Others [1968] EA 123, thus:“I accept counsel for the respondent’s proposition that this Court is not bound necessarily to accept the findings of fact by the court below. An appeal to this Court from a 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. Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor 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 findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally…” 22.The Court must, however, exercise restraint in interfering with findings of fact and the exercise of discretion unless it is shown that the trial court misdirected itself in law, took into account irrelevant matters, failed to take into account relevant matters, or arrived at a plainly wrong decision. This approach was enunciated in Mbogo vs. Shah [1968] EA 93 as follows:“A Court of Appeal should not interfere with the exercise of the discretion of a judge unless it is satisfied that he misdirected himself in some matter and as a result arrived at a wrong decision, or unless it is manifest from the case as a whole that the judge was clearly wrong in the exercise of his discretion and that as a result there has been misjustice.” 23.We will start by addressing the jurisdictional questions posed by the cross-appellants. In regard to the question as to whether the appellants’ suit was defective for being instituted by a deceased person, we are in concurrence with the appellants’ submission that it was not. Senior Counsel Mr. Karori Kamau admitted upon our probing that the issue of the demise of one of the plaintiffs prior to the filing of the suit was never taken up by the cross-appellants before the trial court. Counsel for the appellants argued that had the issue been raised at the trial, a satisfactory explanation would have been provided for what appeared to be a suit filed by the deceased. Although it is indeed not possible, as correctly submitted by counsel for the cross-appellants, that a deceased person can directly file a suit except through a legal representative, the appellants may have had a plausible reason for the lodging of the suit two days after one of the two plaintiffs had passed away. This is not, therefore, an issue that can be raised on appeal with a view to denying the appellants the fruits of their judgment. Secondly, and as correctly submitted by counsel for the appellants, one of the plaintiffs is still alive, and the plaintiffs’ claim against the cross-appellants did not collapse following the demise of one of the plaintiffs. We therefore find no merit on this aspect of the appeal. 24.On the claim by the cross-appellants that the issue of the imperfection of the gift inter vivos was never pleaded by the appellants, we have perused the further amended plaint dated 8th July 2021 and find that the appellants did not specifically plead that the alleged gift of the property to the cross-appellants was imperfect. However, the fact that the appellants were accusing the cross-appellants of fraud and forgery meant that they were questioning the legitimacy of the cross-appellants’ claim to the property. Additionally, the cross-appellants had in their further amended statement of defence dated 11th January 2022 specifically averred at paragraph 11 that “the suit property was to be bequeathed as a gift and not for purposes of collecting rent on behalf of the deceased.” There was also an averment at paragraph 15 that “the Deceased willingly handed over the original title to the 3rd Defendant to facilitate the registration of the transfer in favour of the 1st Defendant.” By so averring, the cross-appellants had placed the question of the legitimacy of the alleged gift before the trial court for its consideration. We, therefore, find no merit in the cross-appellants’ accusation against the trial Judge that he determined an issue not raised by the parties. 25.Having dispensed with the preliminary arguments, we find that the other issues we have identified for our determination in this appeal are interconnected. We will therefore address them together. The appellants challenged the trial court’s finding that fraud was not proved. It is trite law that allegations of fraud must be specifically pleaded and strictly proved. Thus, in Vijay Morjaria vs. Nansingh Madhusingh Darbar & Another [2000] eKLR it was held that:“It is well established that fraud must be specifically pleaded and that particulars of the fraud alleged must be stated on the face of the pleading. The acts alleged to be fraudulent must of course be set out, and then it should be stated that these acts were done fraudulently. It is also settled law that fraudulent conduct must be distinctly alleged and as distinctly proved, and it is not allowable to leave fraud to be inferred from the facts.” 26.The standard of proof in a case where fraud is alleged was expressed by the Supreme Court in Fanikiwa Limited & 3 others vs. Sirikwa Squatters Group & 17 Others [2023] KESC 105 (KLR) as follows:“However, it is trite law that fraud which, depending on the circumstances is recognized as a criminal offence, must be pleaded and strictly proved. In addition, although the standard of proof of fraud in civil matters is not proof beyond reasonable doubt, it is higher than proof on a balance of probabilities as required in other civil claims.” 27.These are the principles we will apply in considering the appeal before us. The trial court evaluated the evidence and placed significant weight on the testimony of DW2, who testified that he witnessed the deceased execute the transfer after verifying his passport. The appellants, on their part, did not challenge this evidence. Additionally, it is imperative to point out that the deceased, Arthur Thomas Porter, passed away before testifying in the case. Similarly, the appellants did not call any expert to support the alleged forgery or dislodge the testimony of DW2. Suspicion, however strong, cannot substitute proof. The only available evidence was that of DW2, who testified that he witnessed the deceased sign the transfer documents upon which the appellants based their allegation of fraud. We ,therefore, find no basis to interfere with the factual finding by the trial court that fraud was not established. 28.In support of their claim, the appellants relied on a sale agreement dated 2nd December 2015 and undated transfer forms to assert ownership. The 2nd appellant’s case was that the deceased signed the sale agreement and the undated transfer forms with the intention of transferring the suit property to her as an appreciation or in compensation for the expenses she incurred in taking care of him in his old age. 29.With regard to contracts for the sale of land, section 3(3) of the Law of Contract Act (Cap 23) provides that:“No suit shall be brought upon a contract for the disposition of an interest in land unless –a.the contract upon which the suit is founded-i.is in writing;ii.is signed by all the parties thereto; andiii.the signature of each party signing has been attested by a witness who is present when the contract was signed by such party.Provided….” 30.While the appellants produced a written agreement, there was no evidence of payment of the purchase price or registration of a transfer. More critically, no evidence was tendered to show that the deceased intended to immediately divest himself of ownership pursuant to the alleged sale, which came later in time than the alleged gift to the cross-appellants. It is also imperative to note that the deceased executed this agreement well after he had purportedly executed the transfer forms and surrendered the title of the suit land to the cross-appellants. 31.In this case, there only existed an alleged sale agreement with no proof of payment. The appellants did not produce any expense receipt to which the alleged sale would act as a reimbursement. The appellants produced undated transfer documents, but we are left wondering how the same could have been effectuated without the completion documents, and specifically the original title deed. In the circumstances, we find that the appellants failed to establish their interest in the property through the alleged sale. Consequently, the alleged sale remained unenforceable as a conveyance and did not pass any proprietary interest. 32.We now turn to the issue of gift inter vivos. The central question is whether the learned Judge erred in law by holding that the gift inter vivos failed solely because registration was not completed during the deceased’s lifetime. The cross-appellants’ case was that the deceased freely and voluntarily executed a transfer of the suit property on 26th May 2014 before a duly licensed Canadian Notary Public; surrendered the original title deed to the 3rd cross-appellant; and placed the cross-appellants in possession of the property. 33.As we have already pointed out in this judgment, these facts were never rebutted, hence the correct finding that fraud was not established. In view of the finding that fraud was not proved and the undisputed facts that were placed before the trial court, we are inclined to depart from the learned Judge’s finding that the gift was not complete for failure to have the interest registered during the donor’s lifetime. With respect, this amounted to a misdirection in law and an overly rigid application of statutory formalism, divorced from both equitable principles and binding authority. 34.The Court has previously been called upon to decide on the question of gift inter vivos. There is no doubt that a gift inter vivos touching on land must be effected by registered transfer. In Ogwara vs. Mangera & 4 Others [2021] KECA 117 (KLR), the Court dealt extensively with the operability of a gift inter vivos not transferred during the donor’s lifetime. The finding in that case, which we concur with, was that where all is done and what is pending is the mere registration, courts will find the gift complete. Additionally, courts will be called upon to consider the plausibility of the reasons adduced by the donee for the failure to transfer the interest during the donor’s lifetime. We reproduce in extenso the Court’s discussion on the subject as follows:40.Gifts inter vivos must be complete for the same to be valid. In Halsbury's Laws of England 4th Edition Volume 20(1) the learned author at paragraph 67 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.” (Emphasis added).41.The determinant issue here is whether the deceased had gifted the land in question to the 3rd respondent as at the time of his death. If he had done all that needed to be done to perfect the gift and all that remained was the donees’ action to actualize or crystalise the gift, then such gift was complete…42.…43.In the case of Registered Trustees Anglican Church of Kenya Mbeere Diocese vs. David Waweru Njoroge [2007] eKLR the Court cited the case of In Mascall vs. Mascall 50 P & CR 119, where the question was whether a Gift of land was completely constituted by delivery of the land certificate and a form of transfer. In that case, Brown Wilkinson L.J. held at page 126:The basic principle underlying all the cases is that equity will not come to the aid of a volunteer. Therefore, if a donee needs to get an order from a court of equity in order to complete his title, he will not get it. If, on the other hand, the donee has under his control everything necessary to constitute his title completely without any further assistance from the donor, the donee needs no assistance from equity and the gift is complete. It is on that principle which is laid down in (Rose vs. Inland Revenue Comrs [1952] Ch 499) that in equity it is held that a gift is complete as soon as the settler or donor has done everything that the donor has to do that is to say as soon as the donee has within his control all those things necessary to enable him, the donee to complete his title.”44.In SNELL’S EQUITY 29th Edition, the authors, state at page 122 paragraph (3):“…… where however the donor has done all in his power according to the nature of the property given to vest the legal interest in the property in the donee, the gift will not fail even if something remains to be done by the donee or some third person. Thus, in Re Rose, Midland Bank Executor & Trustee Co. ltd. Vs. Rose [1949] Ch. 78 the donor executed a transfer of shares in a private company and handed it with share certificate to the done who died before it had been registered. Although the donee’s legal title would not be perfected until the company had passed the transfer for registration or at least until the donee had an unconditional right to be registered, it was held that the gift was good because the donor had done all that was necessary on his part. Likewise a gift of registered land becomes effective upon execution and delivery of the transfer and cannot be recalled thereafter even though the donee has not yet been registered as proprietor.” (Emphasis added).From the foregoing, it is clear to us that unless it was proved that the transfer documents were forged, the gift of portions of land to the 3rd respondent was completed before the deceased died regardless of the fact that the transfer itself had not been registered at the Land Office. We are also satisfied that the reasons given by the 3rd respondent for the delay in registering the transfer of the suit land were plausible.” 35.And in Registered Trustees Anglican Church of Kenya Mbeere Diocese vs. David Waweru Njoroge [2007] KECA 448 (KLR), the Court held that:In this case, therefore, the respondent has done all in his power to divest himself of and transfer to the church trustees all his legal and equitable interest in the land. There is nothing that remains to be done by the appellant to complete the transaction. The registration of the land is not within the power of the appellant and the transferee does not need any assistance from the court.” 36.Similarly, in In Re Rose; Rose vs. Inland Revenue Commissioners [1952] Ch 499, a decision of persuasive authority consistently cited by Kenyan courts, it was held that in equity a gift is complete as soon as the settler or donor has done everything that the donor has to do and what remains is for the donee to complete the transaction. 37.Even Musyoka, J., in the case of In Re Estate of Chesimbili Sindani (deceased) [2021] eKLR, which decision was relied upon by the learned Judge in holding that the gifting of the suit property was incomplete, was clear that:“From the case law above, the principle that emerges is that any gift inter vivos should be backed by some memorandum in writing, and the gift would be complete once title to the subject property is transferred to the name of the beneficiary of the gift. Difficulties arise where transfer is not effected to the beneficiaries before the death of the deceased, in which case such property would remain the free property of the deceased, available for distribution at confirmation, the argument being that such gift was founded on a mere promise which the deceased did not carry through prior to his death. Where some preliminary steps were taken towards effectuating his promise, so that all what remained after the death of the deceased was mere registration of the property in the name of the beneficiary, it would be presumed that the deceased intended to make a gift inter vivos. That would be the case where the deceased has complied with the Land Control Act, Cap 302, Laws of Kenya, where the land is subject to that law, by applying for consent to transfer the property from the name of the deceased to that of the beneficiary, the consent had been granted, and he had signed a transfer form to facilitate registration of the property in the name of the beneficiary. That would mean practically everything had been done to perfect or complete the gift were it not for the demise of the deceased. The mere fact of being shown a piece of land and given permission to occupy and use it, without more, is not adequate proof for a gift inter vivos. The deceased, as registered proprietor of the land in question, would have the right to licence a person to occupy the land and use it. A child who has been shown a piece of land to build on and to till, is not in the shoes of an owner, but a mere licencee. The death of the deceased would not upgrade the licence to ownership, if anything the death of the proprietor could mean that the license comes to an end, and the licencee continues to occupy and work the land at the mercy of the administrator.” [Emphasis ours] 38.We agree with the reasoning and conclusion in the cited authorities, which is rooted in the maxim that “equity considers as done that which ought to be done”. In our view, even though unregistered transfers are generally treated as incomplete and not binding, the donor’s execution of transfer documents, combined with intent, will suffice if registration was delayed due to circumstances beyond the donor’s control. In the present case, the evidence on record discloses that the deceased signed the prescribed transfer, delivered the original title, relinquished control, and placed the cross-appellants in possession. Nothing further was required of him personally to complete the gift. 39.Furthermore, the cross-appellants tendered uncontroverted evidence that registration was delayed due to a caveat lodged by the UK Secretary of State and the Land Registrar’s insistence on personal appearance by the deceased. In our view, these were external impediments, not attributable to the donor or the donees. Having done all that which was legally and practically required of him, the deceased cannot be deemed to have retained ownership merely because of bureaucratic delays in the completion of the transfer of title. It is on this basis that we find it proper to depart from the learned Judge’s finding. To us, the gift inter vivos was complete despite the non-registration, as the reasons given by the cross-appellants for the failure to conclude the registration are plausible. 40.Turning to another issue, the appellants faulted the trial court for declining to order an account and the surrender of the rental income, despite an admission by the 3rd cross-appellant that he had been collecting approximately Kshs. 275,000 per month since 2012. In our view, this ground is moot, owing to our finding that the inter vivos gift to the cross-appellants was complete and valid. We only need to add that the cross-appellants were in possession of the suit property pursuant to a valid gift. The rent collected flowed from that possession and from the deceased’s intention that the property be family property. In the absence of proof of fraud, illegality, or agency against the cross-appellants, the trial court correctly declined to order an account of the rent proceeds. This is because the appellants had failed to establish any legal basis, contractual, proprietary, or fiduciary, entitling them to the rental income. 41.As regards the claim for the expenses incurred in the preparation of the valuation report, we only need to observe that special damages must be specifically pleaded and strictly proved. The author of the valuation was not called to testify. The trial court was, therefore, entitled to attach little or no probative value to that evidence and correctly declined the claim. 42.Having found that the gift inter vivos was complete in equity, it follows that the suit property did not form part of the deceased’s estate at the time of death. Consequently, the learned Judge erred in ordering the surrender of the original title, vacant possession, and a permanent injunction restraining the cross-appellants from dealing with the property. These orders effectively revested the property in the estate of the deceased, contrary to the deceased’s clear lifetime intention and the law on completed gifts. 43.Finally, as regards the order directing the parties to meet their own costs, we note that the appellants’ success before the trial court was partial. Although the general rule in section 27 of the Civil Procedure Act is that costs follow the events, the court may for good reason, order otherwise. The dispute involved close family members and competing claims founded on inheritance and gift. We find no reason to hold that the trial court exercised its discretion injudiciously by directing each party to bear its own costs, and we therefore find no justification for interfering with the trial court’s discretion on the issue of costs. 44.In the end, the appellants’ appeal fails in its entirety, while the cross-appellants’ appeal succeeds so that the judgment and decree of the Environment and Land Court is set aside in its entirety and substituted with an order dismissing the appellants’ suit at the trial. Just like the trial court, we find it just and fair to order the parties to bear their own costs of the appeal, and we so order. DATED AND DELIVERED AT NAIROBI THIS 29TH DAY OF MAY, 2026.W. KARANJA...............................JUDGE OF APPEALL. ACHODE...............................JUDGE OF APPEALW. KORIR...............................JUDGE OF APPEALI certify that this is a True copy of the originalSignedDEPUTY REGISTRAR