Issues For Determination
11.The gravamen of the appeal is that the trial court was factually mistaken in finding that the deceased had any role in subdividing the land as alleged, and in making inter vivos gifts. Accordingly, that the land should therefore be divided equally between all the children of the deceased.
12.On whether there was an intervivos gift and the land was sub-divided, I have carefully perused the record of proceedings. This evidence was given by the respondent’s brother, James Kangeri both in chief and in cross examination. He admitted that there was nothing written to show the gift, Further, in cross examination he admitted that the land was still in his father’s name. PW 2 was the respondent he repeated the evidence of PW1, but also admitted that the land was still in his father’s name.
13.The respondent gave evidence for the daughters. She said the titles were still in her father’s name meaning there was no gift. She added that there were no subdivisions of the land during her father’s lifetime, but admitted that her mother had done subdivisions.
14.The learned trial magistrate noted that it was on the proposal of James Muriuki Kangeri’s skethch plan that the land was proposed to be distributed. He concluded that:
15.He further stated that:
16.The trial magistrate then invoked section 42 of the Law of Succession Act and distributed the property as if previously settled by intervivos gift, giving 2.5 acres to each of the sons and 1 acre to be shared between the daughters.
17.A gift inter vivos, is a gift between the living. This is the latin phraseogy, and is the legal term that refers to a transfer or gift made during the grantor's life. In reality, where a gift has been given inter vivos, it ceases to be part of the free property of the deceased, and is incapable of being inter-mixed with the free estate of the deceased.
18.Section 2 of the LSA defines free property of the deceased as:
19.In my view, where the intended gift has not vested in the beneficiary by way of transfer prior to or at the time of the deceased’s death, it remains an incomplete gift, and the property remains free property of the deceased of which he could have otherwise freely disposed of.
20.Evidence that a gift has not taken effect or vested include, as in this case, the fact that, in the least, there was no subdivision or mutation signed by the deceased with transfer forms duly signed and lodged but not effected. Such actions together with fencing by the deceased and physical handover of partitions to the beneficiaries before his death, would make a good case to support the existence of a gift intervivos.
21.In this case all the elements of a gift are missing. The survey and payments thereof were done long after the deceased passed on, the handing over appears to have been done by the deceased’s wife, and the title remained in the name of the deceased up to the time of trial.
22.The case of Micheni Arphaxad (supra) relied upon by the respondents supports the position that there was no gift intervivos where Gitari J describes a gift inter vivos as follows:
23.I am in full agreement with and adopt the sentiments above.
24.In the present case, the alleged gifts were not given by the deceased to the two sons as alleged, nor settled, since the alleged gifts were not crystalized or consummated to the benefit of the two brothers. Indeed, the appellant acknowledged this fact not only because he admitted that the title was still in the deceased’s name at the time of trial, but also because as a co-administrator, he introduced a sketch plan of the alleged sub-division which was not signed by the deceased and alleged to have been made in 1997 two years after the death of the deceased.
25.I am therefore unable to agree with the respondent that there was any gift inter vivos and the appeal fails on that ground.
26.In light of the foregoing finding, there could be only one mode of distribution and that is the mode found under section 38 of the Law of Succession Act, which provides for equal distribution among the surviving children of the deceased.
27.To the extent that the learned trial magistrate purported to find that there was a gift intervivos and thus distributed the property with larger portions favouring the two sons, the distribution was discriminatory to the daughters of the deceased.
28.The appeal therefore succeeds. The decision of the trial court is therefore set aside and is substituted with a decision hereby distributing the deceased’s land parcel No Mutira/Kathare/128 equally between all the children of the deceased. Further, in such sub-division, any portions required for road reserves shall be deducted equally from the portions allocable to each child.
29.There is no order made as to costs, this being a family matter.