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Court of AppealDismissedCivil Appeal No. 212 of 2016· [2018] KECA 712 (KLR)

Mwangi Gakuri v Bernard Kigotho Maina & another [2018] KECA 712 (KLR)

Court of Appeal of Kenya
9 February 2018
EGE. M. GithinjiHOH. M. OkwenguJMJ. Mohammed
2,431 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that joint property owners who privately agree to swap shares cannot later claim survivorship rights over the original jointly-owned property.

What this practically means

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Executive summary

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The appellant petitioned for letters of administration in the deceased's succession cause through a citation, and the respondents, two sons of the deceased, obtained and confirmed a grant that included LR. No. 36/11/213 (Eastleigh) as part of the estate. The appellant then sought revocation of the grant on the ground that the property was jointly owned by him and the deceased as joint tenants and was therefore unavailable for distribution under the doctrine of jus accrescendi. The High Court (L. Achode, J) dismissed the summons, finding from the parties' conduct that the deceased and the appellant had agreed that each would own one of their two joint properties exclusively. On appeal, the Court of Appeal affirmed. It accepted the principle of survivorship in joint tenancy but held that evidence of a distinct subsequent oral agreement modifying the joint tenancy was admissible under proviso (IV) of Section 98 of the Evidence Act to show that the appellant held a bare title as trustee for the deceased. The court found the respondents' account - an exchange of the Eastleigh property for the Mbotela property - corroborated by the appellant's conduct: he instigated the succession proceedings, failed to object to the inclusion of the Eastleigh property, delayed 14 years before asserting survivorship, and negotiated for release of the title. It concluded there was no fraud, false statement or concealment in obtaining the grant, and dismissed the appeal with costs to the respondents. This ruling now binds subordinate courts on the admissibility of oral agreements modifying joint tenancies in succession disputes.

Key legal issues

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01

Whether joint ownership under joint tenancy precluded inclusion of the property in the deceased's estate

Holding

Although joint tenancy ordinarily transmits the property to the surviving joint tenant by survivorship, a subsequent oral agreement modifying the joint tenancy may defeat that right, so there is no fraud in including the property in the estate

Reasoning

The court accepted the legal position on survivorship but held that the respondents' evidence of an agreement by which the appellant exchanged his interest in the Eastleigh property for exclusive ownership of the Mbotela property, honoured over many years, was admissible under proviso (IV) of Section 98 of the Evidence Act. On that evidence the appellant held only a bare title as trustee, so the grant was properly obtained without fraud.

p. 2
02

Whether the appellant's conduct corroborated the alleged oral agreement and negated fraud

Holding

The appellant's conduct - issuing the citation leading to the petition, failing to object, seeking the petition to be served, negotiating release of the title, and not registering his survivorship interest for 14 years - showed he was not candid and that the exchange agreement existed

Reasoning

The court drew adverse inferences from the appellant's inconsistent positions: he first sought service of the petition, later denied it was served; he claimed the Mbotela property did not exist, yet rates records showed it in his name; and he sought the original Eastleigh title in exchange for the Gikomba property. These facts validated the trial court's findings on the affidavit evidence.

p. 3

Legal principles established

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  • Upon the death of a joint tenant, the property passes by operation of law to the surviving joint tenant, and a joint tenancy cannot pass under the will or intestacy of a joint tenant
  • Evidence of a distinct subsequent oral agreement to modify a joint tenancy is admissible under proviso (IV) of Section 98 of the Evidence Act to show that the registered joint tenant holds a bare title as trustee

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal awarded to the respondents
On appeal from
High Court of Kenya at Nairobi
H.C. Succession Cause No. 2335 of 2011
Jurisdiction invoked
First appellate jurisdiction over the High Court ruling (not expressly stated in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mwangi Gakuri v Bernard Kigotho Maina & another [2018] KECA 712 (KLR)", Case Analysis (2018). Civil Appeal No. 212 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/712/eng@2018-02-09

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.