In re Estate of Kisilu (Deceased) (Succession Cause E208 of 2021) [2025] KEMC 365 (KLR)

failed to consider that the Deceased had shared out parts of the estate during her lifetime and that beneficiaries had developed these portions. 5. Specifically, the Protestor averred that the Deceased had “gifted” her late husband, Archibald Musyoka Kisilu, land parcels Iveti/Mungala/180 and Iveti/Mungala/187. She stated that she and her late husband took possession of these lands, built their matrimonial home, settled with their two children, and cultivated crops. She attached photographs showing the homestead and farm to support her claim of long-term occupation. She contended that subdividing these parcels as proposed by the Petitioner would be tantamount to evicting them from their home. 6. Additionally, the Protestor deposed that Parcel 1545 had been similarly shared out to Esther Mumbua Kisilu, who took occupation, and that Shantel Nthenya Mutua and Jackline Mueni Kisilu had also been gifted parcels. Based on these grounds, the Protestor proposed the following distribution: a. Iveti/Mungala/180 and 187: To be registered exclusively in the name of Jacqueline Eva Musyoki. b. Iveti/Mungala/1545: To be registered exclusively in the name of Esther Mumbua Kisilu. c. Iveti/Mungala/1186 and 1548: To be shared equally among Jackline Mueni, Judith Mwongeli, and Shantel Nthenya. Submissions 7. The Petitioner, through Munyasya & Co. Advocates, filed submissions dated 22nd August 2025, arguing that the alleged gifts were legally unenforceable. Counsel submitted that under Section 38(1) of the Land Registration Act, any contract for the disposition of an interest in land must be in writing. Relying on Re Estate of Godana Songoro Guyo (Deceased)[2020] eKLR, the Petitioner argued that for an inter vivos gift to be valid, the donor must voluntarily transfer the interest without expectation of death, a threshold not met here as the titles remained in the Deceased’s name. Counsel further cited Re Estate of Late Gedion Manthi Nzioka (Deceased) eKLR to demonstrate that gifts of land must be perfected by registered transfer or a written declaration of trust. Since the Protestor produced no such instrument, the Petitioner contended that the properties remained free estate property available for equal distribution, as held in re Estate of Etete Masakhalia (Deceased) eKLR. 8. The Protestor, represented by Fred K. Musyimi & Associates, filed submissions dated 28th August 2025, urging the Court to adopt a utilitative approach rather than strict mathematical equality. Counsel argued that distributing the estate equally would lead to absurdity, citing Succession Cause No. 220 of 2011: In the Matter of the Estate of M''Mutungi M’Raibuni. In that case, the court held that mathematical equality should not result in beneficiaries receiving strips of land incapable of meaningful use. The Protestor submitted that dividing Parcel 180 (approx. 0.11 Ha) into five portions would destroy her matrimonial home. Counsel emphasised the Court’s equitable duty to prevent the eviction of beneficiaries who have settled on the land and argued that the distribution should be adjusted to preserve the Protestor’s home. Analysis and Determination 9. The Court has considered the pleadings, afidavits, and written submissions. The main issues for determination are the validity of the alleged inter vivos gifts and the appropriate mode of distribution. https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/365/eng@2025-11-28 2

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Validity of the Alleged Inter Vivos Gifts 10. The law regarding gifts of registered land in Kenya has been settled in various court decisions, some of which are highlighted by the parties in submissions. In re Estate of Nkurumwa Ole Ntemel (Deceased) [2024] KEHC 13805 (KLR), the court cited in re Estate of the Late Gedion Manthi Nzioka (Deceased) [2015] eKLR, where Nyamweya J (as she then was) held as follows: “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. In this regard it is not necessary for the donee to give express acceptance, and acceptance of a gift is presumed until or unless dissent or disclaimer is signified by the donee. See in this regard Halsburys Laws of England 4th Edition Volume 20(1) at paragraph 32 to 51. The court further cited Halsbury’s Laws of England, 4th edition, volume 20(1) para 70 that: “ The subsequent acts of the donor may give the intended donee a right to enforce an incomplete gift. Thus, if a donor puts the donee into possession of a piece of land and tells him that he has given it to him so that he may build a house on it, and the donee accordingly, and with the donor’s assent, expends money in building a house, the donee can call on the donor or his representatives to complete the gift.” 11. This means that for a gift inter vivos to be efiective, the Deceased must have transferred title to the donee or given away the land in writing. Where the donee dies before transferring the title, as in this case, the alleged gift is incomplete, imperfect, and unenforceable. The Deceased retained the titles until her death, and no written instrument of transfer or trust was produced. Consequently, the Protestor’s claim that Parcels 180 and 187 were validly gifted fails as a matter of law. These assets remain part of the deceased''s free estate and must be included in the distribution of the estate. I now turn to the distribution of the assets. Distribution 12. Section 38 of the Law of Succession Act mandates equal distribution among children that: “Where an intestate has left no surviving spouse or children, the net intestate estate shall subject to the provisions of Section 41 and 42, devolve upon the surviving child, if there be only one, or shall be equally divided among the surviving children.” 13. Section 42 of the Act provides that: “ Where— a.an intestate has, during his lifetime or by will, paid, given or settled any property to or for the benefit of a child, grandchild or house; or property has been appointed or awarded to any child or grandchild under the provisions of section 26 or section 35, that property shall be taken into account in determining the share of the net intestate estate finally accruing to the child, grandchild or house.” https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/365/eng@2025-11-28 3

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14. 15. The first critical step in determining the most appropriate distribution mode is identifying the beneficiaries and the assets. According to the application and the protest, the following individuals have been ascertained as the beneficial units entitled to share in the net intestate estate : a. Esther Mumbua Kisilu (Daughter) b. Jackline Mueni Kisilu (Daughter) c. Judith Mwongeli Kisilu (Daughter/Petitioner) d. Jacqueline Eva Musyoki (Daughter-in-Law/Protestor) The assets subject to this distribution analysis are five freehold parcels of land, namely: Iveti/ Mungala/1545 (0.09 Ha-0.22 acres) Iveti/Mungala/180 (0.11 Ha-0.27 acres) Iveti/Mungala/187/ (0.44 Ha-1.09 acres) Iveti/ Mungala/1548 (0.10 Ha-0.25 acres) Iveti/Mungala/1186 (0.09 Ha)-0.22 acres The total land area is 0.83 hectares (approximately 2.05 acres). I note that these parcels are relatively small. Parcel 187 is the only significantly sized asset (0.44 hectares) capable of accommodating multiple subdivisions without rendering the plots economically infeasible. The other parcels, 1545, 180, 1548, and 1186, are around 0.1 hectares (a quarter of an acre). I am not aware of specific zoning regulations for Machakos County or any rules regarding the minimum registrable size, but logically, these units represent the practical minimum for land in a rural area. Fragmenting each of them into five equal portions, as proposed by the Applicant, may not be viable. What then would be the middle ground? 16. While Section 38 of the Law of Succession Act mandates that the estate “shall be equally divided,” the interpretation of “equality” has evolved. In Re Estate of M''Mutungi M''Raibuni (supra), the High Court established the precedent that equality is not an absolute mathematical command if it leads to the destruction of the asset’s value. If the court were to order the subdivision of Parcel 1545 (0.09 Ha) into five strips of 0.018 Ha, the result would be five parcels of land too small to build a compliant house upon, too small for meaningful agriculture, and likely unregistrable under the Land Control Act. Such an order would be an exercise in futility. Therefore, the court adopts equality of value rather than equality of form, which aligns with Section 42 of the Law of Succession Act. 17. The starting point is that the Protestor’s claim that she has settled on parcel 180 was not challenged by way of a further or supplementary afidavit. I am unsure about the condition of 187, as she only clearly stated that her home is on 180. I assume that she has indeed undertaken developments on this portion. I find that, although the transfer of Parcel 180 to the Protestor via her husband was not completed, the occupation and development of that land constitute a benefit or settlement in equity. The court cannot ignore that she has a house there. By allocating Parcel 180 entirely to her, the court is treating that asset as an advancement of her share. To prevent unjust enrichment, where she keeps the house and receives an equal share of the remaining assets, the value of Parcel 180 must be deducted from her entitlement to the remaining assets. 18. I exclude Parcel 1186 from the individual allocation pool, as both parties appear to have reached consensus that it is either shared equally or held by the Administrators in trust for all the beneficiaries. Given its size, the Applicant’s proposal to hold it collectively in an undivided state seems more appropriate. The net distributable assets now total 1545, 180, 187, and 1548, all approximately 0.74 hectares. With five distinct beneficiary units (Esther, Jackline, Judith, Jacqueline, Shantel), though it https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/365/eng@2025-11-28 4

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is not possible to achieve an exactly equal share, each beneficiary is expected to receive around 0.148 hectares, plus their one-fifth interest in the land to be held in trust, Parcel 1186. 19. The first step is to assign the assets that, according to the application, have an established occupation. If the Protester takes 180 wholly, she will need about 0.038 hectares to reach parity. If 1545 goes entirely to Esther, she will require 0.058 hectares to achieve equity. The remaining beneficiaries, Judith, Jackline, and Shantel, have full claims of 0.148 Ha each. The remaining assets are Parcel 1548 (0.10 Ha) and Parcel 187 (0.44 Ha). Splitting 0.10 Ha among three people creates small, uneconomical plots of 0.033 Ha each. I find it prudent to allocate it to one person: the Applicant (Judith), leaving her with a shortfall of 0.048 to reach parity 20. The only remaining asset is Parcel 187 - 0.44 Ha, which should be shared so that beneficiaries who have yet to receive a share of the other portions receive larger shares. These are Jackline and Shantel. Parcel 187 will be subdivided into five distinct portions, as set out hereunder. 21. I accordingly confirm the Grant of Letters Administration with the following distribution schedule a. Parcel Iveti/Mungala/180 measuring approximately 0.11 Ha is hereby allocated wholly to the Protestor Jacqueline Eva Musyoki. b. Parcel Iveti/Mungala/1545, measuring approximately 0.09 Ha, is hereby allocated wholly to Esther Mumbua Kisilu. c. Parcel Iveti/Mungala/1548, measuring approximately 0.10 Ha, is hereby allocated wholly to the Applicant Judith Mwongeli Kisilu. d. Parcel Iveti/Mungala/187 measuring approximately 0.44 Ha shall be subdivided into five (5) portions as follows: I. II. (i) Portion 1 (approx. 0.148 Ha): Jackline Mueni Kisilu. ii. Portion 2 (approx. 0.148 Ha): Shantel Nthenya Mutua. iii. Portion 3 (approx. 0.058 Ha): Esther Mumbua Kisilu. iv. Portion 4 (approx. 0.048 Ha): Judith Mwongeli Kisilu. v. Portion 5 (approx. 0.038 Ha): Jacqueline Eva Musyoki. If any of the five portions are adjacent to the main parcels, 180, 1545 and 1548, the beneficiaries are encouraged to amalgamate them into single titles, subject to feasibility. e. Parcel Iveti/Mungala/1186 measuring approximately 0.09 ha shall be registered in the joint names of the administrators, Jacqueline Eva Musyoki and Judith Mwongeli Kisilu, to hold in trust for all five beneficiaries: Esther Mumbua Kisilu, Jackline Mueni Kisilu, Judith Mwongeli Kisilu, Jacqueline Eva Musyoki and Shantel Nthenya Mutua. f. This being a family matter, each party shall bear its own costs. Delivered electronically, dated and signed this 28th day of November 2025. Hon. C.C. Oluoch. CHIEF MAGISTRATE SIGNED BY: HON. CHARITY OLUOCH https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/365/eng@2025-11-28 5

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