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Court of AppealDismissedCivil Appeal No 18 of 2017· [2021] KECA 117 (KLR)

Ogwara v Mangera & 4 others (Civil Appeal 18 of 2017) [2021] KECA 117 (KLR)

Court of Appeal of Kenya
22 October 2021
WKW. KaranjaAMA. K. MurgorSKS. ole Kantai
4,524 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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The Court of Appeal confirmed that land a deceased person properly transferred before dying does not form part of their estate, even if registration was never completed.

What this practically means

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Executive summary

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The deceased, Onyiego Ogwora, died intestate in August 1991 owning several parcels of land, including Central Kitutu/Mwamosioma/1052 (the suit land). The appellant, a grandson, filed summons for revocation of grant and rectification of register, contending that the subdivision and transfer of the suit land to the 3rd, 4th and 5th respondents before confirmation of the grant was fraudulent intermeddling. The High Court dismissed the application, holding that the deceased had validly gifted the land inter vivos and that no grounds for revocation of the grant were established. On first appeal, the Court of Appeal framed three issues: whether the deceased made gifts inter vivos; whether the transfers were valid; and whether fraud was proved. Relying on Halsbury's Laws, Mascall v Mascall, Re Rose and Snell's Equity, the Court held that a gift of registered land becomes effective upon execution and delivery of the transfer and cannot be recalled even if the donee is not yet registered, provided the donor has done all that was necessary on his part. The deceased had obtained land control board consent, subdivided the land, and executed the transfer forms in June 1991 before his death; the delay in registration (the instructed advocate's death and the 3rd respondent's stay abroad) was plausible. The fraud allegations failed: applying Vijay Morjaria, the Court held fraud must be distinctly alleged and proved, and the appellant adduced no evidence such as a document examiner to support the forgery claim. The parcels therefore did not form part of the deceased's free estate. The appeal was dismissed with each party bearing its own costs, the Court treating the grant-revocation complaints as peripheral.

Key legal issues

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01

Whether the deceased made complete gifts inter vivos of parcels 1231 and 1232 to the respondents

Holding

The gifts were complete: the deceased executed and delivered the transfer documents before his death, and all that remained was the donees' registration step

Reasoning

Relying on Halsbury's Laws, Mascall v Mascall, Re Rose and Snell's Equity, the Court held that where the donor has done everything within his power to vest the property, the gift does not fail even if something remains to be done by the donee. The deceased obtained land control board consent, subdivided the land, and executed transfer forms on 17th June 1991 before dying on 22nd August 1991. The delay in registration (the advocate's death and the 3rd respondent's absence in the USA) was plausible and did not undo the gift.

p. 8
02

Whether the appellant proved the alleged forgery of the transfer documents

Holding

No. The allegations of fraud were unsubstantiated; the appellant produced no document examiner and did not discharge the burden under sections 109 and 112 of the Evidence Act

Reasoning

Applying Vijay Morjaria v Nansingh Madhusingh Darbar, the Court reiterated that fraud must be distinctly alleged and distinctly proved and cannot be inferred from facts. The appellant's testimony that the dates on the transfers 'could have been inserted at any time' was mere speculation unsupported by evidence. The burden lay on the appellant, who 'did not move an inch' to prove his suppositions.

p. 8
03

Whether the suit land formed part of the deceased's free estate available for distribution

Holding

It did not; the land having been validly gifted inter vivos, it was not free property available for distribution to other beneficiaries

Reasoning

Once the gifts were held complete, the parcels 1231 and 1232 (and the subdivisions arising from 1232) fell outside the estate. This also explained why those parcels were not included in the schedule of assets in the succession proceedings, and it rendered the complaints about the grant and its revocation peripheral.

p. 8

Legal principles established

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  • A gift of registered land inter vivos is complete once the donor has executed and delivered the transfer, even if registration has not yet occurred, provided forgery is not proved
  • On a first appeal, the Court of Appeal must re-evaluate, re-assess and re-analyze the evidence and determine whether the trial court's conclusions should stand, giving reasons either way
  • Fraud must be specifically pleaded, its particulars stated on the face of the pleading, and distinctly proved; it cannot be left to inference

Court orders

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  1. 1.Appeal dismissed
  2. 2.Each party to bear its own costs of the appeal

Authorities

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Legislation

  • Law of Succession ActSection 76
  • Registered Land Act (Cap 300, Laws of Kenya)Not specified
  • Evidence ActSections 109 and 112

Cases cited (7)

  • Abok James Odera t/a A. J. Odera & Associates vs John Patrick Machira t/a Machira & Co. Advocates
    [2013] eKLR
  • Kenya Ports Authority vs Kustron (Kenya) Limited
    2000 2EA 212
  • Registered Trustees Anglican Church of Kenya Mbeere Diocese vs David Waweru Njoroge
    [2007] eKLR
  • Mascall vs. Mascall
    50 P & CR 119
  • Rose vs. Inland Revenue Comrs
    [1952] Ch 499
  • Re Rose, Midland Bank Executor & Trustee Co. ltd. Vs. Rose
    [1949] Ch. 78
  • Vijay Morjaria vs Nansingh Madhusingh Darbar & Another
    [2000] eKLR
On appeal from
High Court of Kenya
Not stated in the judgment
Jurisdiction invoked
First appeal to the Court of Appeal under the appellate structure of the succession cause (specific provision not stated in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (8)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Ogwara v Mangera & 4 others (Civil Appeal 18 of 2017) [2021] KECA 117 (KLR)", Case Analysis (2021). Civil Appeal No 18 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/117/eng@2021-10-22

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