David Gitonga & 1 other v Maria Kabicha Gikundi

4. Maria Kabichia Gikunda was opposed to the proposed mode of distribution and she filed an affidavit of protest dated 15th December, 2021. She deposed that the late M’kiria Muthuri, owned several parcels of land and he had allocated to each of his three households different parcels of land during his lifetime. 5. She averred that the 1st Applicant, David Gitonga, is the son of Nahashon Muthuri(deceased) who was from the 1st House which was settled on Land Parcel No. Nyaki/Mulathankari/68 and that his said father in collision with his sister Violet Ngatha Angaine (deceased) subdivided this subject land into land parcels nos. Nyaki/Mulathankari/1429 & 1430 and later sold them. 6. She deponed that the 1st Applicant’s father was registered as the owner of land parcel no. Nyaki/ Thuura/1287 during the land adjudication process since the deceased herein had already passed away and he was the only son from the 1st house. 7. She averred that land parcel No. Nyaki/Thuura/645 was allocated to the 2nd House and should therefore be distributed among the children of the 2nd House. 8. She asserted that the mode of distribution by the Applicants is unjust and inequitable and stated that the 1st Applicant is not entitled to a share of the estate. 9. She proposed that Land parcel No. Nyaki/Thuura/645 should be distributed in equal shares to the following beneficiaries; a. Maria Kabichia b. Children of Catherine Karithoni including the 2nd Applicant Gemma Gakii c. Children of Margaret Mukogaiti including Regina Kagwiria. 10. The Summons was heard by way of viva voce evidence. 11. Maria Kabichia, the protestor herein, testified that the deceased had three houses and he had given each house their parcels of land. She urged the court to adopt her proposed mode of distribution. 12. The Applicants did not testify in support of their proposed mode of distribution. 13. Thereafter parties opted to file submissions. However, at the time of writing this ruling, only the protestor’ submissions are on record. 14. The protestor urged this court to adopt her mode of distribution for reason that the subject parcel was allocated to the 2nd House by the deceased and that the 1st Applicant’s deceased father was from the 1st house and was allocated Nyaki/Mulathankari/68 & Nyaki/Thuura/1287. 15. She argued that where the deceased was polygamous and had distributed or settled his houses on distinct parcels of land during his lifetime, and therefore his wishes ought to be respected. In support of this position, the protestor placed reliance on the cases of Re Estate of M'Ngarithi M'Miriti (Deceased) [2017] eKLR & In Re Estate of M'Marete[2004] eKLR. 16. The protestor submitted that second house has three children and she is the only one who is alive. She said her deceased siblings Catherine Karithoni and Margaret Mukogaiti were survived by Gemma Gakii, the 2nd Applicant herein, and Regina Kagwira respectively. 17. She posited that failure by the Applicants to file a further affidavit left her case uncontroverted and their failure to prosecute summons demonstrates disinterest in the matter. 18. She prayed that the Court award her costs due to the Applicants’ failure to prosecute their summons. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6508/eng@2026-04-30 2

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Analysis & Determination 19. The sole issue for determination is which mode of distribution should be adopted by this court. 20. The reasons the protestor is opposed to the Applicants’ proposed mode of distribution is that the 1st Applicant, David Gitonga, is the son of her deceased brother Nahashon from the first house who was allocated Land Parcels Nyaki/Mulathankari/68 and Nyaki/Thuura/1287 by the deceased and that it would be thus unjust and inequitable for the first Applicant to also receive a share of the estate solely reserved for the second house. 21. The protestor’s assertion that the second house was allocated the subject parcel by the deceased has not been challenged. However, it is settled law that he who alleges must prove. 22. What is the requirement of law as far as a gift inter vivos is concerned? I find useful guidance in Nyamweya J in her decision in the case of Re Estate of the Late Gedion Manthi Nzioka (Deceased) [2015] eKLR, where she stated as follows: “ In law, gifts are of two types. There are the gifts made between living persons (gifts inter vivos), and gifts made in contemplation of death (gifts mortis causa). Section 31 of the Law of Succession Act provides as follows with respect to gifts made in contemplation of death: …For gifts inter vivos, the requirements of law are that the said gift may be granted by deed, an instrument in writing or by delivery, by way of a declaration of trust by the donor, or by way of resulting trusts or the presumption of Gifts of land must be by way of registered transfer, or if the land is not registered it must be in writing or by a declaration of trust in writing. Gifts inter vivos must be complete for the same to be valid.” 23. In Halsburys Laws of England 4th Edition Volume 20(1) at paragraph 67 it is stated as follows with respect to incomplete gifts: “ Where a gift rests merely in promise, whether written or oral, or in unfulfilled intention, it is incomplete and imperfect, and the court will not compel the intending donor, or those claiming under him, to complete and perfect it, except in circumstances where the donor’s subsequent conduct gives the donee a right to enforce the promise. A promise made by deed is however, binding even though it is made without consideration. If a gift is to be valid the donor must have done everything which according to the nature of the property comprised in the gift, was necessary to be done by him in order to transfer the property and which it was in his power to do.” 24. The protestor states that the deceased allocated land parcels to each of his three houses and that the first house, from which the first Applicant’s deceased father belonged to, was settled on Land Parcel No. Nyaki/Mulathankari/68. The green card annexed in support bears only the name of Violet Ngatha as the sole proprietor by transmission. The applicant did not testify to give the court the correct picture. 25. The protestor contends that the subject land was exclusively allocated to the second house. Her evidence was not controverted. 26. Regarding the proposed mode of distribution by the Applicants, I note that the 1st Applicant did not offer any explanation as to why he should be allocated a bigger share than the rest of the beneficiaries. I also note that he is the only other person from the other houses who is to get a share. This lays credence to the protestor’s assertion that the particular land was set aside for the 2nd house. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6508/eng@2026-04-30 3

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27. In light of the above, I find that distribution of the estate as proposed by the protestor is both just and equitable. The applicant ought not benefit twice from the estate. 28. Accordingly, I order that the estate’s asset, L.R No. Nyaki/Thuura/645, be shared as follows; a. Maria Kabichia…….1/3 share. b. The children of Catherine Karithone….1/3 share to share amongst themselves equally. c. The children of Margaret Mukogaiti …1/3 share to share among themselves equally. 29. This being a family matter there shall be no orders as to costs 30. Orders accordingly. DATED, SIGNED AND DELIVERED AT MERU THIS 18TH DAY OF MAY 2026. H. M. NYAGA, JUDGE. Meru Succ.Cause No. 541 of 2010 Page 3 of 3 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6508/eng@2026-04-30 4

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