In re Estate of M'Mwamba M'Inoti (Deceased) (Succession Cause E144 of 2021) [2024] KEMC 96 (KLR)
The bottom line
#A Kenyan court ruled that land a deceased person sold before dying belongs to the buyer, not the family heirs.
What this practically means
#Executive summary
#Key legal issues
#Whether parcel Abothuguchi/Gitie/765, sold by the deceased to the protestor but never transferred before death, formed part of the estate
No. The deceased held it in trust for the protestor under the equitable maxim 'equity regards as done what ought to be done'; it was ordered transmitted to the protestor.
The protestor proved a sale agreement over 765, an excision from 255, full payment of the purchase price, and that the deceased signed the Land Control Board consent application and appeared before the Board only for approval to be deferred; the deceased died before the deferred date. Following Mwangi v Manyeki, the court applied the equitable maxim, holding that the deceased's clear intention transferred the beneficial interest, so the parcel is not available for distribution to the estate.
Which parcels constitute the available estate property
Only Abothuguchi/Gitie/778; parcels 255 and 766 are non-existent (registers closed on subdivision) and 777 belongs to third parties.
Documentary proof by green cards, mutation forms and search certificates showed 255 was subdivided into 765 and 766, 766 was further subdivided into 777 and 778, and 777 underwent two transfers to strangers to the estate. The sole surviving estate property available for distribution was therefore 778, to be shared under sections 35 and 38 of the Law of Succession Act.
Mode of distribution of Abothuguchi/Gitie/778
To be shared equally among the beneficiaries under sections 35 and 38 of the Law of Succession Act.
Since the estate is that of an intestate leaving surviving children but no spouse, section 38 applies and the net intestate estate devolves equally upon the surviving children. The Certificate of Confirmation of Grant accordingly allotted 778 equally to Madarina Nduru Muketha, Vaskwerina Mutura Kiunga, James Murithi and Jenifier Ncheri Gideon, with Ncheri holding in trust for herself and her children.
Legal principles established
#- Once a deceased executes a transfer in favour of a purchaser, equity regards as done what ought to have been done, and the parcel is held in trust for the purchaser and does not form part of the estate.
Court orders
#- 1.Abothuguchi/Gitie/765 shall be and is hereby transmitted to the Protestor (Nthamburi Hezah)
- 2.Abothuguchi/Gitie/255 declared a non-existent property not available for distribution
- 3.Abothuguchi/Gitie/766 and Abothuguchi/Gitie/777 declared properties of third parties not available for distribution
- 4.Certificate of Confirmation of Grant issued: 765 to Nthamburi Hezah; 778 equally to Madarina Nduru Muketha, Vaskwerina Mutura Kiunga, James Murithi and Jenifier Ncheri Gideon (Ncheri to hold in trust for herself and her children)
- 5.Right of appeal is 30 days
- Jurisdiction invoked
- Law of Succession Act - summons for confirmation of grant (protest thereto)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "In re Estate of M'Mwamba M'Inoti (Deceased) (Succession Cause E144 of 2021) [2024] KEMC 96 (KLR)", Case Analysis (2024). Summons for Confirmation of Grant dated 23rd January, 2023 (Githongo Law Courts). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2024/96/eng@2024-05-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.