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Court of AppealDismissedNot stated in judgment

Mugambi & 2 others v M'Mugambi (Civil Appeal 274 of 2019) [2025] KECA 1235 (KLR)

Court of Appeal
27 June 2025
JLJ. LesiitALAli-AroniGOG.V. Odunga
3,708 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal confirmed that land given to a family member during someone's lifetime can stay theirs, even without a formal transfer.

What this practically means

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Executive summary

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This was a first appeal from the High Court (J. Kasango) in a succession dispute over the estate of M'Mugambi M'Rimberia, who died intestate in 1984 owning two parcels of land, Abothuguchi/U-Kaongo/1050 and 580. The original grant obtained by the 2nd appellant was revoked after it emerged that the respondent's name had been replaced with that of the respondent's son. In the ensuing confirmation proceedings, the trial court found that the deceased had gifted Parcel No. 1050 to the respondent inter vivos because the deceased had assisted the respondent in educating his brothers; it held that only Parcel No. 580 was available for distribution, to be shared equally among the other children, with the share of the late Charles Kinyua Mugambi held by his widow in trust for his children. The appellants appealed, contending that no gift inter vivos was proved since the land remained registered in the deceased's name, no memorandum in writing existed, and no transfer steps such as Land Control Act consent were taken. The Court of Appeal, per Lesiit, Ali-Aroni and Odunga, JJ.A, identified a single issue: whether the gift was proved. Relying on Kagina and Munyole, the Court reiterated that a deceased person may divest himself of property during his lifetime and that incompleteness of transfer does not invalidate a gift inter vivos, which may be sanctioned by the court where proven. The deceased's move to Parcel No. 580 with the other sons and the respondent's undisturbed occupation and development of Parcel No. 1050 for eleven years demonstrated the intention to gift. The appellants neither cross-examined the respondent's witnesses nor called evidence. The appeal was dismissed with costs to the respondent.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the deceased gifted Parcel No. Abothuguchi/U-Kaongo/1050 to the respondent as a gift inter vivos, such that it did not form part of the deceased's estate available for distribution

Key legal issues

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01

Whether a gift inter vivos of land that remained registered in the deceased's name was proved

Holding

Yes - the deceased's relocation of the entire family to Parcel No. 580, leaving the respondent in possession and development of Parcel No. 1050 for 11 years until his death, established the gift, and the gift being imperfect (unregistered) did not invalidate it.

Reasoning

The court found the undisputed facts established that the deceased left the respondent in occupation of Parcel No. 1050 from 1973 until his death in 1984 while he and the other sons moved to Parcel No. 580. Citing Kagina and Halsbury's, the court held that subsequent acts of the donor may give the donee a right to enforce an incomplete gift. The appellants did not cross-examine the respondent's witnesses or call evidence. The trial judge's decision was therefore well reasoned and free of fault.

p. 6

Legal principles established

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  • A deceased person has the capacity to divest himself of property during his lifetime by gift inter vivos, and lack of completion of the transfer process does not of itself invalidate such a gift; an imperfect gift may be perfected by the grant holder or sanctioned by the court where proven.
  • On a first appeal, the appellate court must reconsider and evaluate the evidence and draw its own conclusions, while making due allowance for the fact that it neither saw nor heard the witnesses.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal are awarded to the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

JL
majority

Wrote the judgment

AL
majority

Wrote the judgment

GO
majority

Wrote the judgment

On appeal from
High Court (succession/probate trial court)
Not stated in judgment
Jurisdiction invoked
First appeal to the Court of Appeal under its appellate jurisdiction (specific provision not stated in the judgment)

Relief refused

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The appellants' prayer that the finding of a gift inter vivos in respect of Parcel No. 1050 be overturned and that the parcel be included in the distribution of the estate

The court found the deceased's intention to gift the parcel was clear from his relocation to Parcel No. 580 and his allowing the respondent to develop Parcel No. 1050, and an imperfect gift inter vivos is sanctionable by the court

p. 7

Costs

Costs awarded to the respondent

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The appeal is dismissed with costs to the respondent.
p. 7Final orders/disposition
lack of completion of the process of transfer does not of itself render the gift inter vivos invalid. It can be perfected by the grant holder if there is no contest over it, or alternatively sanctioned by a court where proven.
p. 6Imperfect gifts inter vivos in succession
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.
p. 4Duty of a first appellate court
The appellants failed to cross- examine the respondent and his witnesses. The appellants chose not to testify or call evidence to the contrary at the hearing.
p. 6Consequences of failing to rebut evidence

Issues in the judgment

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minor

The judgment inconsistently states the date of confirmation of the grant, describing it as confirmed on 28th May 2002 in one passage and as 'issued and confirmed on 21st January 1998, and rectified on 28th May 2002' in another.

minor

The trial judge is referred to as 'he' in places while earlier described as J. Kasango (and the quote uses 'her (sic)'), and the judgment refers to 'the appellant' where the respondent is evidently meant.

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, "Mugambi & 2 others v M'Mugambi (Civil Appeal 274 of 2019) [2025] KECA 1235 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1235/eng@2025-06-27

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