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MagistratePartially AllowedSuccession Cause - Summons for Confirmation of Grant dated 2nd August 2021 (Githongo)· [2024] KEMC 108 (KLR)

In re Estate of M’rinkanya M’itwamwaru (Deceased) (Succession Cause 30B of 2020) [2024] KEMC 108 (KLR)

Principal Magistrate's Court (Succession Division), Githongo
12 June 2024
TST. A. Sitati
3,445 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court protected land buyers who paid in full and took possession, even though paperwork was never completed before the seller died.

What this practically means

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Executive summary

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This Githongo succession judgment by Senior Principal Magistrate T. A. Sitati determines a protest by three purchasers against Summons for Confirmation of Grant in the estate of Charles Rinkanya M'Rinkanya, who died on 28th March 2016. The Administrator, Abel Mputhia, proposed distributing five parcels wholly to himself, one to David Mungiria and one to Isaac Kithinji, excluding the purchasers. The protestors claimed protectable interests by purchase: Julius from the deceased himself (agreement of 6th July 2015), and Pharis and Mutwiri from the deceased's children after his demise. The court found, on tested evidence, that Julius transacted with the deceased while alive, paid the full consideration and took possession; applying Mwangi v Manyeki and the equitable maxim that equity regards as done what ought to have been done, his interest was protected and the children's eviction of him after the father's demise was illegal. The court further held that the deceased's mutation form of 12th February 2016 demarcating shares and giving possession completed gifts inter vivos to each child, who could then lawfully sell their gifted shares, holding them in trust for their purchasers pending transfer formalities. The protests were allowed: 4004 went wholly to Julius, 4005 to Mutwiri and 4007 to Pharis per acreage bought, with the remaining parcels distributed per the summons (Florence's share of 4003 reduced). A Certificate of Confirmation of Grant was issued; costs were awarded to the protestors, with a 30-day right of appeal.

Key legal issues

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01

Whether Julius's purchase from the deceased during his lifetime conferred a protectable interest despite incomplete transfer formalities

Holding

Yes. Julius bought ½ acre from the deceased on 6th July 2015, paid the full consideration and took possession; the children could not lawfully evict him after the father's demise. His share is protected and transmitted directly to him.

Reasoning

The court applied the equitable maxim that equity regards as done what ought to have been done, guided by Mwangi v Manyeki where an executed transfer was held to take land outside the estate, and by Michael Mwangi Maina v Davidson Mwangi Kagiri holding that possession by a purchaser is protectable. The deceased's death, not the purchaser, prevented completion of formalities.

p. 7
02

Whether the deceased's demarcation and giving of possession of shares to his children constituted a completed gift inter vivos

Holding

Yes. By the mutation form dated 12th February 2016 the deceased demarcated his land and gave each child possession; the gifts crystallized before his demise, so each child could sell his gifted share.

Reasoning

Relying on In re Estate of Godana Songoro Guyo on incomplete gifts, the court held the deceased's acts went beyond a mere promise: demarcation, delivery of possession and acceptance completed the gift inter vivos. Shares had crystallized by the time of death, giving each donee capacity to deal with his gift pending transfer formalities.

p. 7
03

Whether the children's subsequent sales to Pharis and Mutwiri were effective for purposes of distribution

Holding

Yes. The sales by donees of crystallized gifts were lawful; the purchasers are recognized as beneficially interested and the specified shares are transmitted directly to them.

Reasoning

Each heir held capacity to deal with his gift as he wished pending transfer formalities, holding the gift in trust for the purchaser. The court enumerated the specific sales recognized, including Jediel's sales to Mutwiri and Pharis, Godfrey's, David Murangiri's and Florence Kathure's sales to Mutwiri.

p. 8

Legal principles established

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  • A purchaser who transacted with the deceased during the deceased's lifetime and paid consideration, but whose transfer formalities were not completed due to the deceased's demise, has a protectable interest under the maxim that equity regards as done what ought to have been done.
  • Possession by a purchaser is a protectable interest.
  • A gift inter vivos is completed by demarcation, giving of possession and acceptance by the donee; a donee may then sell his gifted share holding it in trust for the purchaser pending transfer formalities.

Court orders

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  1. 1.Protests allowed; estate distributed: L.R Abothuguchi/Gaitu/4003 equally to Evangeline Mwengwa M'Rinkanya, Harriet Ncabira M'Rinkanya, Florence Kathure M'Rinkanya, Faith Kiario M'Rinkanya and Doris Kanya M'Rinkanya subject to reduction of Florence's share
  2. 2.L.R Abothuguchi/Gaitu/4004 wholly to Julius Mwenda Nkanata in accordance with the acreage he bought
  3. 3.L.R Abothuguchi/Gaitu/4005 wholly to David Mutwiri Nkanata
  4. 4.L.R Abothuguchi/Gaitu/4006 wholly to David Mungiria Rinkanya
  5. 5.L.R Abothuguchi/Gaitu/4007 to Pharis Mugiira Mbogori in accordance with the acreage he bought
  6. 6.L.R Abothuguchi/Gaitu/4008 wholly to Abel Mputhia M'Rinkanya
  7. 7.L.R Abothuguchi/Gaitu/4009 wholly to Isaac Kithinji M'Rinkanya
  8. 8.Plot 3A Ucheru Market wholly to Abel Mputhia M'Rinkanya
  9. 9.Certificate of Confirmation of Grant issued in accordance with the shares identified in the judgment
  10. 10.Costs to the successful protestors; right of appeal is 30 days
Jurisdiction invoked
Law of Succession Act - jurisdiction to confirm grants and distribute the estate (Summons for Confirmation of Grant)

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, "In re Estate of M’rinkanya M’itwamwaru (Deceased) (Succession Cause 30B of 2020) [2024] KEMC 108 (KLR)", Case Analysis (2024). Succession Cause - Summons for Confirmation of Grant dated 2nd August 2021 (Githongo). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2024/108/eng@2024-06-12

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