Richard Lenana Pulei (the 1st Respondent herein) filed a petition seeking administration of the Estate of Noadiah Soila Pulei. This court granted letters of Administration to the said Respondent on 6th July, 2021. The matter was heard before a court annexed mediator where the parties partially agreed but failed to agree on the issue of the distribution of the property. The matter was therefore returned to court for the determination of the issue of distribution. The Applicant herein filed a protest dated 18th October, 2024.
Evangeline Lipeine Pulei, opposed the proposed confirmation of the grant of probate that had been made to Richard Lenana Ole Pulei explaining that she is the only surviving daughter of the deceased and that the respondents in the matter are her brothers. She also indicates that the properties listed as belonging to their late mother include two specific plots L.R NO A/BUSINESS/C539 and 1B/BUSINESS/C676 where she and her family have lived for over 38 years, and where she, together with her sons, have built their homes.
She further states that after the death of their father, cultural practices prevented her, as a woman, from inheriting property, unlike her brothers who received large tracts of land which they later sold. She supports this claim by referring to attached sale agreements showing that some land was sold through a company associated with one of her brothers. She also explains that it had been her mother’s wish for her to inherit the disputed plots and that her siblings were aware of this. In addition, she took a loan from SMEP Microfinance Bank to construct and repair rental houses on the two plots, which she considers her home.
She also argues that her brothers already have their own homes and rental properties from which they earn income. She claims that the two plots were given to her as a gift inter vivos during her mother’s lifetime and therefore should not be included in the succession proceedings. She adds that the plots were originally one parcel that the deceased subdivided before her death to begin the transfer process, but the process was not completed. She concludes by expressing concern that the administrator and her brothers intend to dispossess her of the only property left to her by her parents, which would leave her homeless.
The 1st Respondent filed his Replying Affidavit dated 13th February, 2025 in opposition to the affidavit of protest. He states that he is one of six children of the deceased and was duly appointed by the court as the administrator of the estate. He emphasizes that their mother died intestate, leaving no oral or written will, and therefore no one—including Evangeline—was given authority to inherit property directly. He accuses Evangeline of unlawfully taking plot documents from their mother while she was on her deathbed, a matter he claims was reported to the police.
He further disputes the Applicant’s claim of having built houses on the property, asserting instead that all structures were built by their mother. He clarifies that their father died in 1970 and that the property in question belonged solely to their mother. He insists that the estate should be shared equally among all the children of the deceased.
He also alleges that the Applicant has been collecting rental income from the property since May 2020 and using it for personal benefit, contrary to the Succession Act. He accuses her of denying him and his siblings’ access to the property despite his role as administrator. Consequently, he seeks an order to stop her from collecting rent and to compel her to account for all proceeds collected since May 2020, pending the court’s final determination.
Protestor’s case
This matter proceeded by way of viva voce hearing on 29th September, 2025. Evangeline Lipeine Pulei the protester testified that she has lived in the contested plot since 1991 and has brought up her children there. She stated that her brothers waited for the demise of their mother to raise issues about her living there. She testified that she was taken to the DCI due to allegations of theft however the DCI investigated and found that she had not committed any offence. She stated that her brothers were given land measuring 28 acres each by their father and that she did not understand why her brothers are interested in her mother’s plot yet they have their own land. She stated that she also needs shares in her father’s property if the brothers insist on having the property of their mother.
On cross examination she stated that when her father died she was young and that women were not inheriting property. She stated that the plot has some shops and a clinic facility and that it is true her mother did not write anything stating that the property was hers.
Respondent’s case
Richard Lenana Ole Putei stated that he is the 2nd eldest son of the deceased and the administrator of the estate. He proposed that the property be subdivided equally among the siblings. It was his case that his sister the Applicant is not truthful for selfish reasons. He disputes the allegations that the Applicant developed the plot and instead stated that the plot was developed by their mother(deceased). He testified that the protestor has been collecting rent for the last 5 years from the suit properties and that it is true that they had a share in their father’s estate and that the protestor did not benefit. He stated that they were each given 15 acres and their mother the deceased was also given 15 acres. On cross examination he stated that the sister has been living in the plot for 30 years since 1991. He however stated that the deceased did not say that the protestor get the shares of the plot.
Submissions
The Applicant filed her submissions dated 9th October, 2025 she opposes the Summons for Confirmation of Grant dated 9th March 2022, arguing that the two disputed properties—LR NO. A/BUSINESS/C539 and LR NO. 1B/BUSINESS/C676—were gifted to her by her late mother either as gifts inter vivos or gifts mortis causa, and therefore should not form part of the free estate for distribution. She contends that subjecting them to equal distribution among all beneficiaries would be inequitable and contrary to the deceased’s intentions.
She emphasizes her long occupation and development of the properties since 1991, where she built her permanent home and invested in rental units, even taking loans to improve them. This, she argues, demonstrates her mother’s intention to secure her future as the only daughter.
The protestor highlights that her brothers (the Respondents) had already inherited substantial acreage—between 15 and 28 acres each—from their late father, while she was excluded due to cultural bias against daughters. She notes that one brother even sold part of his inheritance and acquired 50 acres elsewhere. Thus, her mother deliberately gifted her the suit properties to achieve equity.
She also refers to a deathbed meeting at St. Mary’s Hospital. According to her, the deceased instructed that one plot be sold to settle medical bills while the other be retained by her. She disputes the 1st Respondent’s claim that both plots were to be sold and proceeds shared, arguing it would be illogical to leave her destitute while her brothers were already well provided for. She cites In Re Estate of Gedion Manthi Nzioka [2015] eKLR, where Musyoka J stated: “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: ‘A gift made in contemplation of death shall be valid, notwithstanding that there has been no complete transfer of legal title, if…’”
(a) the person making the gift is at the time contemplating the possibility of death, whether or not expecting death, as the result of a present illness or present or imminent danger; and
(b) a person gives movable property (which includes any debt secured upon movable or immovable property) which he could otherwise dispose of by will; and
(c) there is delivery to the intended beneficiary of possession or the means of possession of the property or of the documents or other evidence of title thereto; and
(d) a person makes a gift in such circumstances as to show that he intended it to revert to him should he survive that illness or danger; and
(e) the person making that gift dies from any cause without having survived that illness or danger; and
(f) the intended beneficiary survives the person who made the gift to him:
Provided that-
i no gift made in contemplation of death shall be valid if the death is caused by suicide;
ii the person making the gift may, at any time before his death, lawfully request its return.’”
She argues that the deceased had already initiated transfer by subdividing the plots and leaving allotment letters in her custody, which she still holds.
On principles of equity and non-discrimination, she invokes Article 27 of the Constitution and cites Rono v Rono & Another [2005] eKLR, where the Court of Appeal held that: “Distribution of an estate must take into account the principle of equality of children, whether male or female.” She also refers to Re Estate of Thiong’o Githendu [2002] eKLR, where the court recognized that fairness requires considering prior benefits received by beneficiaries.
In conclusion, the Protestor submits that she has lived on and developed the properties for decades, her brothers already received substantial inheritance, and her mother intended to provide for her through these gifts. She urges the court to dismiss the Summons for Confirmation and declare the two properties as belonging exclusively to her.
The Respondent filed his submissions dated 28th October, 2025. He submitted that he, sought administration of the estate after the Applicant, Evangeline Lipeine Pulei, was uncooperative. Letters of Administration were granted to him in July 2021. However, the Applicant later filed an affidavit of protest against confirmation of the grant, claiming that the disputed properties had been gifted to her inter vivos and therefore should not form part of the estate.
He argues that the deceased died intestate, and under Section 38 of the Law of Succession Act, the estate must be divided equally among the surviving children. The properties in question—LR NO. A/BUSINESS/C539 and LR NO. 1B/BUSINESS/C676—should therefore be included in succession. The Applicant relies on case law (e.g., Estate of Ngetich (2003) eKLR & Registered Trustee Anglican Church of Kenya Mbeere Diocese -vs- David Waweru Njoroge (2007) eKLR to assert that a gift inter vivos must be complete, evidenced by transfer or written documentation, which the Applicant herein has failed to prove. In Vikariya Investment Limited -vs- Kenya Airports Authority and 2 others (2014) eKLR the courts clearly stated that, a Title is conclusive proof of ownership. 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. The allotment letters she holds do not bear her name, and allegations are made that she obtained them improperly.
He further contends that the Applicant has been unfairly collecting rent from the properties—about Kshs. 100,000 per month—without sharing with other beneficiaries. Citing Estate of the Late Gedion Manthi Nzioka (deceased) (2015) KEHC 944 (KLR), it was provided that “Any party claiming ownership of any property of the deceased estate was to prove such ownership before confirmation.” He emphasizes that any party claiming ownership must prove it before confirmation of grant, which the Applicant has not done.
Ultimately, he submits that the protest lacks merit, the properties should form part of the estate, and the court should order her to account for the rent collected, stop converting the property to personal use, and allow fair distribution among all beneficiaries. The submissions conclude with a prayer that the Applicant’s application be dismissed.
Analysis and Determination
I have considered the affidavit of protest, the Replying affidavit, the evidence, submissions and authorities relied on. In this matter the issue for determination is whether the two suit properties L.R NO. A/BUSINESS/C539 AND 1B/BUSINESS/C676 are to be distributed amongst the beneficiaries.
In this matter the deceased who was the mother to both the applicants and the respondents died intestate. There is no dispute that the parties in this matter are siblings. The issue the Applicant raises is that the suit properties are not part of the free estate available for distribution because the deceased gave her the properties as gift inter vivos and/or gifts mortis causa.
The Law of succession Act governs the distribution of an estate where the deceased died intestate. In this case the parties herein are the children of the deceased and are therefore provided for under section 29(a) of the Law of Succession Act which provides that, For the purposes of this Part, "dependant" means— (a) the wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death;
Further in this matter the parties are the surving children having lost both their mother and father. In this case the provision that applies in the distribution of such an estate is Section 38 of the law of succession Act that provides that, “Where intestate has left a surviving child or children but no spouse Where an intestate has left a surviving child or children but no spouse, the net intestate estate shall, subject to the provisions of sections 41 and 42 , devolve upon the surviving child, if there be only one, or shall be equally divided among the surviving children.”
At this point it is important that this court determines whether the suit properties are free for distribution or they are gift inter vivos or gift mortis causa. In Micheni Aphaxard Nyaga & 2 others v Robert Njue & 2 others [2021] eKLR, the Court had this to say on gift inter vivos:
“The characteristics of the gifts inter vivos are that they are made and settled during the lifetime of the deceased and have been identified, awarded and settled for the person to whom it has been given. It is a gift made to a beneficiary when the deceased was alive and is considered when distributing the net intestate estate so that person who received it may be considered as having received his share and may reduce or diminish any entitlement to the net intestate estate. The gift which is transferred and settled for the beneficiary during the life-time of the deceased, will not form part of his estate but it will be taken into account in determining the share of the net intestate estate finally accruing to that beneficiary. …In any event the person who makes such a gift must have the capacity and competency to gift the property and the gift must be perfected. In the case of inter vivos the gift must go to the donee absolutely during the lifetime of the donor. It is also well established that where the gift has been made, delivery to the beneficiary is necessary to consummate the gifts”.
In Re Estate of Ruth Nyakanini Rukwaro [2016]eKLR where Justice Mativo held that, “My understanding of this provision is that whatever property belonged to the deceased, and which had not yet been transferred to the individual children during the deceased’s lifetime, had to be subject to the provisions of this Act and the court would then take cognizance of the gifts given during the deceased’s lifetime. If indeed the deceased had already given the other beneficiaries their share, then that would be taken into account at the time of distribution. But it must be proved beyond doubt that indeed the deceased gave out the property or gift during his/her life time.’’
From this authority it is clear that the gift must have been delivered to the beneficiary for the gift to have been consummated. The Applicant herein stated that she was given the allotment letters to the property but that the deceased had started the process of transfer but the same had not been completed. Further, in Halsbury’s Laws of England 4th Edition Volume 20(1) at paragraph 67 it is stated 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.”
Even if this court were to believe that the deceased had gifted the Protestor the suit properties, which has not been proved, the process of transfer of the property did not meet the legal requirements for gift inter vivos. That process was not completed during the lifetime of the deceased. In this therefore the suit properties are free for distribution according the law of Succession Act.
The above is the rendition of the law. The Respondents are by law entitled to the share of their deceased mothers’ property equally with the applicant/protestor. However, in the course of hearing of the protest, it became apparent that the respondents had inherited the share of their late father’s estate who died in a road accident in 1970s. In the words of Richard Lenana Ole Pulei, the petitioner, “each of the sons received 15 acres” from their late father whereas their sister the protestor herein did not benefit from her father’s properties whatsoever. This was as a result of the cultural practices that discriminated against daughters. Making an order that the L.R NO A/BISINESS/C539 and 1B/BUSINESS/C676 be shared equally among the protestor and four of his brothers is to perpetuate an injustice and to continue to give an approval to the discrimination meted upon the applicant who, admittedly never got a share of her late father’s estate. The justice of this case therefore demand that this court should not close its eyes to its peculiar facts and unique circumstances in the face of obvious injustice to the protestor.
In the circumstances, the protest succeeds and I direct that the two plots L.R NO A/BISINESS/C539 and 1B/BUSINESS/C676 be registered in the name of the applicant Evangeline Lipeine Pulei.
Evangeline Lipeine Pulei, opposed the proposed confirmation of the grant of probate that had been made to Richard Lenana Ole Pulei explaining that she is the only surviving daughter of the deceased and that the respondents in the matter are her brothers. She also indicates that the properties listed as belonging to their late mother include two specific plots L.R NO A/BUSINESS/C539 and 1B/BUSINESS/C676 where she and her family have lived for over 38 years, and where she, together with her sons, have built their homes.
She further states that after the death of their father, cultural practices prevented her, as a woman, from inheriting property, unlike her brothers who received large tracts of land which they later sold. She supports this claim by referring to attached sale agreements showing that some land was sold through a company associated with one of her brothers. She also explains that it had been her mother’s wish for her to inherit the disputed plots and that her siblings were aware of this. In addition, she took a loan from SMEP Microfinance Bank to construct and repair rental houses on the two plots, which she considers her home.
She also argues that her brothers already have their own homes and rental properties from which they earn income. She claims that the two plots were given to her as a gift inter vivos during her mother’s lifetime and therefore should not be included in the succession proceedings. She adds that the plots were originally one parcel that the deceased subdivided before her death to begin the transfer process, but the process was not completed. She concludes by expressing concern that the administrator and her brothers intend to dispossess her of the only property left to her by her parents, which would leave her homeless.
The 1st Respondent filed his Replying Affidavit dated 13th February, 2025 in opposition to the affidavit of protest. He states that he is one of six children of the deceased and was duly appointed by the court as the administrator of the estate. He emphasizes that their mother died intestate, leaving no oral or written will, and therefore no one—including Evangeline—was given authority to inherit property directly. He accuses Evangeline of unlawfully taking plot documents from their mother while she was on her deathbed, a matter he claims was reported to the police.
He further disputes the Applicant’s claim of having built houses on the property, asserting instead that all structures were built by their mother. He clarifies that their father died in 1970 and that the property in question belonged solely to their mother. He insists that the estate should be shared equally among all the children of the deceased.
He also alleges that the Applicant has been collecting rental income from the property since May 2020 and using it for personal benefit, contrary to the Succession Act. He accuses her of denying him and his siblings’ access to the property despite his role as administrator. Consequently, he seeks an order to stop her from collecting rent and to compel her to account for all proceeds collected since May 2020, pending the court’s final determination.
Protestor’s case
This matter proceeded by way of viva voce hearing on 29th September, 2025. Evangeline Lipeine Pulei the protester testified that she has lived in the contested plot since 1991 and has brought up her children there. She stated that her brothers waited for the demise of their mother to raise issues about her living there. She testified that she was taken to the DCI due to allegations of theft however the DCI investigated and found that she had not committed any offence. She stated that her brothers were given land measuring 28 acres each by their father and that she did not understand why her brothers are interested in her mother’s plot yet they have their own land. She stated that she also needs shares in her father’s property if the brothers insist on having the property of their mother.
On cross examination she stated that when her father died she was young and that women were not inheriting property. She stated that the plot has some shops and a clinic facility and that it is true her mother did not write anything stating that the property was hers.
Respondent’s case
Richard Lenana Ole Putei stated that he is the 2nd eldest son of the deceased and the administrator of the estate. He proposed that the property be subdivided equally among the siblings. It was his case that his sister the Applicant is not truthful for selfish reasons. He disputes the allegations that the Applicant developed the plot and instead stated that the plot was developed by their mother(deceased). He testified that the protestor has been collecting rent for the last 5 years from the suit properties and that it is true that they had a share in their father’s estate and that the protestor did not benefit. He stated that they were each given 15 acres and their mother the deceased was also given 15 acres. On cross examination he stated that the sister has been living in the plot for 30 years since 1991. He however stated that the deceased did not say that the protestor get the shares of the plot.
Submissions
The Applicant filed her submissions dated 9th October, 2025 she opposes the Summons for Confirmation of Grant dated 9th March 2022, arguing that the two disputed properties—LR NO. A/BUSINESS/C539 and LR NO. 1B/BUSINESS/C676—were gifted to her by her late mother either as gifts inter vivos or gifts mortis causa, and therefore should not form part of the free estate for distribution. She contends that subjecting them to equal distribution among all beneficiaries would be inequitable and contrary to the deceased’s intentions.
She emphasizes her long occupation and development of the properties since 1991, where she built her permanent home and invested in rental units, even taking loans to improve them. This, she argues, demonstrates her mother’s intention to secure her future as the only daughter.
The protestor highlights that her brothers (the Respondents) had already inherited substantial acreage—between 15 and 28 acres each—from their late father, while she was excluded due to cultural bias against daughters. She notes that one brother even sold part of his inheritance and acquired 50 acres elsewhere. Thus, her mother deliberately gifted her the suit properties to achieve equity.
She also refers to a deathbed meeting at St. Mary’s Hospital. According to her, the deceased instructed that one plot be sold to settle medical bills while the other be retained by her. She disputes the 1st Respondent’s claim that both plots were to be sold and proceeds shared, arguing it would be illogical to leave her destitute while her brothers were already well provided for. She cites In Re Estate of Gedion Manthi Nzioka [2015] eKLR, where Musyoka J stated: “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: ‘A gift made in contemplation of death shall be valid, notwithstanding that there has been no complete transfer of legal title, if…’”
(a) the person making the gift is at the time contemplating the possibility of death, whether or not expecting death, as the result of a present illness or present or imminent danger; and
(b) a person gives movable property (which includes any debt secured upon movable or immovable property) which he could otherwise dispose of by will; and
(c) there is delivery to the intended beneficiary of possession or the means of possession of the property or of the documents or other evidence of title thereto; and
(d) a person makes a gift in such circumstances as to show that he intended it to revert to him should he survive that illness or danger; and
(e) the person making that gift dies from any cause without having survived that illness or danger; and
(f) the intended beneficiary survives the person who made the gift to him:
Provided that-
i no gift made in contemplation of death shall be valid if the death is caused by suicide;
ii the person making the gift may, at any time before his death, lawfully request its return.’”
She argues that the deceased had already initiated transfer by subdividing the plots and leaving allotment letters in her custody, which she still holds.
On principles of equity and non-discrimination, she invokes Article 27 of the Constitution and cites Rono v Rono & Another [2005] eKLR, where the Court of Appeal held that: “Distribution of an estate must take into account the principle of equality of children, whether male or female.” She also refers to Re Estate of Thiong’o Githendu [2002] eKLR, where the court recognized that fairness requires considering prior benefits received by beneficiaries.
In conclusion, the Protestor submits that she has lived on and developed the properties for decades, her brothers already received substantial inheritance, and her mother intended to provide for her through these gifts. She urges the court to dismiss the Summons for Confirmation and declare the two properties as belonging exclusively to her.
The Respondent filed his submissions dated 28th October, 2025. He submitted that he, sought administration of the estate after the Applicant, Evangeline Lipeine Pulei, was uncooperative. Letters of Administration were granted to him in July 2021. However, the Applicant later filed an affidavit of protest against confirmation of the grant, claiming that the disputed properties had been gifted to her inter vivos and therefore should not form part of the estate.
He argues that the deceased died intestate, and under Section 38 of the Law of Succession Act, the estate must be divided equally among the surviving children. The properties in question—LR NO. A/BUSINESS/C539 and LR NO. 1B/BUSINESS/C676—should therefore be included in succession. The Applicant relies on case law (e.g., Estate of Ngetich (2003) eKLR & Registered Trustee Anglican Church of Kenya Mbeere Diocese -vs- David Waweru Njoroge (2007) eKLR to assert that a gift inter vivos must be complete, evidenced by transfer or written documentation, which the Applicant herein has failed to prove. In Vikariya Investment Limited -vs- Kenya Airports Authority and 2 others (2014) eKLR the courts clearly stated that, a Title is conclusive proof of ownership. 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. The allotment letters she holds do not bear her name, and allegations are made that she obtained them improperly.
He further contends that the Applicant has been unfairly collecting rent from the properties—about Kshs. 100,000 per month—without sharing with other beneficiaries. Citing Estate of the Late Gedion Manthi Nzioka (deceased) (2015) KEHC 944 (KLR), it was provided that “Any party claiming ownership of any property of the deceased estate was to prove such ownership before confirmation.” He emphasizes that any party claiming ownership must prove it before confirmation of grant, which the Applicant has not done.
Ultimately, he submits that the protest lacks merit, the properties should form part of the estate, and the court should order her to account for the rent collected, stop converting the property to personal use, and allow fair distribution among all beneficiaries. The submissions conclude with a prayer that the Applicant’s application be dismissed.
Analysis and Determination
I have considered the affidavit of protest, the Replying affidavit, the evidence, submissions and authorities relied on. In this matter the issue for determination is whether the two suit properties L.R NO. A/BUSINESS/C539 AND 1B/BUSINESS/C676 are to be distributed amongst the beneficiaries.
In this matter the deceased who was the mother to both the applicants and the respondents died intestate. There is no dispute that the parties in this matter are siblings. The issue the Applicant raises is that the suit properties are not part of the free estate available for distribution because the deceased gave her the properties as gift inter vivos and/or gifts mortis causa.
The Law of succession Act governs the distribution of an estate where the deceased died intestate. In this case the parties herein are the children of the deceased and are therefore provided for under section 29(a) of the Law of Succession Act which provides that, For the purposes of this Part, "dependant" means— (a) the wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death;
Further in this matter the parties are the surving children having lost both their mother and father. In this case the provision that applies in the distribution of such an estate is Section 38 of the law of succession Act that provides that, “Where intestate has left a surviving child or children but no spouse Where an intestate has left a surviving child or children but no spouse, the net intestate estate shall, subject to the provisions of sections 41 and 42 , devolve upon the surviving child, if there be only one, or shall be equally divided among the surviving children.”
At this point it is important that this court determines whether the suit properties are free for distribution or they are gift inter vivos or gift mortis causa. In Micheni Aphaxard Nyaga & 2 others v Robert Njue & 2 others [2021] eKLR, the Court had this to say on gift inter vivos:
“The characteristics of the gifts inter vivos are that they are made and settled during the lifetime of the deceased and have been identified, awarded and settled for the person to whom it has been given. It is a gift made to a beneficiary when the deceased was alive and is considered when distributing the net intestate estate so that person who received it may be considered as having received his share and may reduce or diminish any entitlement to the net intestate estate. The gift which is transferred and settled for the beneficiary during the life-time of the deceased, will not form part of his estate but it will be taken into account in determining the share of the net intestate estate finally accruing to that beneficiary. …In any event the person who makes such a gift must have the capacity and competency to gift the property and the gift must be perfected. In the case of inter vivos the gift must go to the donee absolutely during the lifetime of the donor. It is also well established that where the gift has been made, delivery to the beneficiary is necessary to consummate the gifts”.
In Re Estate of Ruth Nyakanini Rukwaro [2016]eKLR where Justice Mativo held that, “My understanding of this provision is that whatever property belonged to the deceased, and which had not yet been transferred to the individual children during the deceased’s lifetime, had to be subject to the provisions of this Act and the court would then take cognizance of the gifts given during the deceased’s lifetime. If indeed the deceased had already given the other beneficiaries their share, then that would be taken into account at the time of distribution. But it must be proved beyond doubt that indeed the deceased gave out the property or gift during his/her life time.’’
From this authority it is clear that the gift must have been delivered to the beneficiary for the gift to have been consummated. The Applicant herein stated that she was given the allotment letters to the property but that the deceased had started the process of transfer but the same had not been completed. Further, in Halsbury’s Laws of England 4th Edition Volume 20(1) at paragraph 67 it is stated 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.”
Even if this court were to believe that the deceased had gifted the Protestor the suit properties, which has not been proved, the process of transfer of the property did not meet the legal requirements for gift inter vivos. That process was not completed during the lifetime of the deceased. In this therefore the suit properties are free for distribution according the law of Succession Act.
The above is the rendition of the law. The Respondents are by law entitled to the share of their deceased mothers’ property equally with the applicant/protestor. However, in the course of hearing of the protest, it became apparent that the respondents had inherited the share of their late father’s estate who died in a road accident in 1970s. In the words of Richard Lenana Ole Pulei, the petitioner, “each of the sons received 15 acres” from their late father whereas their sister the protestor herein did not benefit from her father’s properties whatsoever. This was as a result of the cultural practices that discriminated against daughters. Making an order that the L.R NO A/BISINESS/C539 and 1B/BUSINESS/C676 be shared equally among the protestor and four of his brothers is to perpetuate an injustice and to continue to give an approval to the discrimination meted upon the applicant who, admittedly never got a share of her late father’s estate. The justice of this case therefore demand that this court should not close its eyes to its peculiar facts and unique circumstances in the face of obvious injustice to the protestor.
In the circumstances, the protest succeeds and I direct that the two plots L.R NO A/BISINESS/C539 and 1B/BUSINESS/C676 be registered in the name of the applicant Evangeline Lipeine Pulei.