Solomon Muniu Kabata v Eliud Ngugi Mbugua

Section 47 of the Law of Succession Act confers on the High Court jurisdiction to entertain any application and determine any dispute under the Act. Rules 17, 40, 44 and 58 of the Probate and Administration Rules, together with rule 63(1) importing Civil Procedure Rules, show succession courts may deal with litigious and contentious matters, including questions of trust. Whether an issue can be conveniently determined in succession proceedings is not a question of jurisdiction. The court adopted its earlier holding in Bena Nafula Makana.

Relying on Juletabi African Adventure and Peter Ndung'u Njenga, the court restated that the law never implies a trust except in absolute necessity, and the intention of the parties to create a trust must be clearly determined before a trust is implied. Section 107 of the Evidence Act places the burden on the person asserting the facts. The respondent admitted in cross-examination that he had no evidence of the gift from his grandfather, and the former Chief's adjudicated proceedings related to a different parcel.

The High Court had erred in reading the elders' proceedings as supporting the trust claim. The elders expressly agreed that plot T.190 would remain the property of the deceased as a gift under Kikuyu custom because his brothers had taken plot T.166. The Green Card corroborated that the brothers inherited T.166 in 1979, so their sons could not again claim their fathers' share in T.190. Had the High Court properly analysed the evidence, it could not have arrived at its decision.

Adopting Nyamweya, J.'s statement in Re Estate of the Late Gedion Manthi Nzioka, gifts inter vivos of land must be by registered transfer, in writing, or by a written declaration of trust, and must be complete to be valid. The respondent claimed the land was gifted by his grandfather, who was not the registered owner, and conceded in cross-examination that he had no evidence of the gift.