Ateka v Ateka

4. The appellant opposed the proposed mode of distribution. His case was that the deceased had, during his lifetime, allocated portions of the said properties to the two houses, and that the respective houses had since occupied and developed their portions of land. He contended that the proposed equal distribution would disregard the deceased’s prior allocation and the existing occupation and boundaries on the ground. In particular, the appellant maintained that the deceased had allocated land comprised in Land Reference No. East Kitutu/Botabori 1/418 between the two houses, and that he had also disposed of a portion thereof to Ensoko SDA Church. 5. The appellant further stated that Parcel No. Ekerubo Settlement Scheme/185 had been acquired by the deceased in partnership with Clement Mouko, Alfred Temu and Thomas Omboga, who had contributed towards its acquisition and taken possession of their respective portions, although the deceased died before transferring their respective portions to them. He further averred that the deceased had also sold and transferred a portion of the said property to Riateka SDA Church, and that he had also gifted 1.5 acres thereof to his grandson Joash Omboga, though he had not transferred title to him before his demise. The appellant therefore contended that the entire parcel of land could not properly be treated as available for distribution between the two houses. 6. The appellant proposed a dierent mode of distribution. In respect of Parcel No. East Kitutu/Botabori 1/418, he proposed that 1 hectare be allocated to the rst house and 0.8 hectares to the second house. With regard to Parcel No. Ekerubo Settlement Scheme/185, he proposed that 8 acres be allocated to the rst house, 5 acres to the second house, 6 acres to Alfred Temu, 2 acres to Clement Mouko, 1.5 acres to Joash Omboga, and 23 acres to Thomas Onyancha. 7. In response, the respondent, in an adavit sworn on 8th August, 2018, opposed the appellant’s proposed mode of distribution and disputed the assertion that the deceased had distributed his estate among the beneciaries during his lifetime. She nevertheless acknowledged that the deceased had dealt with some of the portions of the two parcels in his lifetime. In particular, she stated that a portion of Land Parcel No.Ekerubo Settlement Scheme/185 had been sold to Rieteka SDA Church, which had subsequently been established and was fully functional. She further conceded that the deceased had donated a portion of parcel No. East Kitutu/Botabori 1/418 to Ensonko SDA Church, which had likewise been established and was functional. 8. The respondent however disputed the appellant’s contention that Parcel No.Ekerubo Settlement Scheme/185 had been jointly acquired by the deceased and Clement Mouko, Alfred Temu and Thomas Onyancha. She denied that the alleged third parties had proprietary interests in the land, contending that there was no restriction or caution registered against the title in their favour. She further averred that the allegation was invented by the appellant, his uncles (Clement Mouko and Alfred Temu) and his brother-in law (Thomas Onyancha) to deny the respondent’s family their rightful share of the estate. She maintained that the deceased was the registered proprietor of the property, having acquired it on 2nd October 2010, and that it consequently formed part of his estate. 9. The respondent further challenged the allegation that the deceased had allocated 1.5 acres of Parcel No. Ekerubo Settlement Scheme/185 to Joash Omboga, maintaining that the deceased had not made such an allocation during his lifetime. She asserted that the appellant’s proposed mode of distribution was inequitable and inconsistent with the Law of Succession Act. She therefore urged the court to conrm the grant and distribute the estate among the persons legally entitled to it. 10. The summons for conrmation of grant were heard by way of viva voce evidence. The appellant (PW1) testied that the deceased had two wives, and that the two houses had been allocated their portions in both parcels of land. He stated that Parcel No.East Kitutu/Botabori/418, measuring approximately 1.8 hectares, was ancestral land on which both houses resided. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1942/eng@2026-09-25 2

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According to him, the deceased had, during his lifetime, partitioned the said property between the two houses, with the clear boundaries marked by trees. 11. PW1 further testied that the second parcel of land, Ekerubo Settlement Scheme/185, measured approximately 46.5 acres. He stated that the deceased had purchased the land in 1965 and occupied it from 1968, having obtained a loan to facilitate its acquisition. A quarter-acre portion of the land had been given to Rieteka SDA Church. He testied that the rst house occupied eight (8) acres while the second house was allocated ve (5) acres. He further stated that Alfred Temu, Clement Mouko, and Thomas Onyancha assisted the deceased in repaying the loan used to acquire the land, and had lived on their respective portions for many years, including during the deceased’s lifetime. He gave their respective portions as six (6) acres to Alfred Temu, two (2) acres to Clement Mouko, twenty- three (23) acres to Thomas Onyancha and 1½ acres to Joash Omboga. 12. PW1 asserted that the ve (5) acres of Parcel No. Ekerubo Settlement Scheme/185 allocated to the second house had been given to the respondent in 2010, after the death of his mother (rst wife), who had initially objected to the allocation, on the basis that the respondent had not contributed towards the acquisition of the land. He testied that Alfred Temu and Clement Mouko had settled on the land from about 1971 and had contributed towards its acquisition; and that Thomas Onyancha had settled there in 1979, purchased his portion and planted trees on it. According to PW1, neither his mother nor the respondent had complained about their occupation during the deceased’s lifetime. He also testied that Joash Omboga, the deceased’s grandson, had been gifted 1½ acres because he had taken care of the deceased during his illness. 13. In cross-examination, PW1 maintained that he did not want the respondent to receive half of the land at Ekerubo because other persons had long been residing on the land and had interests in it, and because the respondent had not contributed to its acquisition. He conrmed that Clement Mouko and Alfred Temu were the deceased’s brothers, that Thomas Onyancha was the deceased’s son-in-law, and that Joash Omboga was the deceased’s grandson. He acknowledged that there were no written agreements documenting the interests of Clement, Alfred, and Thomas, but maintained that they had assisted the deceased to acquire the land and had a right to a share in it. He nevertheless accepted that the land was registered in the deceased’s name and that the names of the alleged co-owners did not appear on the title. 14. PW2, Clement Mouko Kiage, testied that he was the deceased’s younger brother. He stated that the deceased had two wives and two parcels of land, namely Parcel No. East Kitutu/Botabori/418, which was ancestral land, and Parcel No. Ekerubo Settlement Scheme/185, which the deceased had purchased. He testied that the two parcels were occupied by the two houses, with each house having its own homestead and clearly demarcated boundaries. He stated that a portion of the ancestral land had been gifted by the deceased to Rieteka SDA Church, while the rest was occupied by the two houses. 15. PW2 testied that he occupied two (2) acres of Parcel No. Ekerubo Settlement Scheme/185, while his brother Alfred Kiage occupied six (6) acres. He stated that he had lived on his portion since 1981 and had cultivated it, having acquired his interest after contributing towards the purchase of the land. He explained that in 1965 the deceased took a loan to purchase the land and that, in 1968, he and Alfred contributed money towards repayment of the loan and were subsequently given their respective portions of land. He maintained that the deceased had allowed them to settle on and cultivate the land and that they had remained in occupation for many years. 16. PW2 further testied that Thomas Onyancha occupied 23 acres, having contributed towards the purchase of the land; Joash Omboga occupied 1½ acres, which the deceased had gifted him for taking care of him during his illness; the rst house occupied 8 acres; while the second house occupied 5 https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1942/eng@2026-09-25 3

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acres. He stated that the deceased had shown the beneciaries their respective boundaries and that the arrangements had been made during his lifetime, and that the existing occupation and boundaries ought to be respected. 17. In cross-examination, PW2 acknowledged that parcel No. Ekerubo settlement scheme/185 was registered in the deceased’s name. He stated, however, that this was because the deceased had acquired the land through a loan and was the registered proprietor, notwithstanding the contributions made by his brothers towards its purchase. He did not know the precise amount contributed by himself, Alfred or Thomas. He also conrmed that there were no written agreements documenting their alleged respective interests in the land. PW2 maintained, nevertheless, that the deceased had given them portions of the land and that they had remained in occupation thereof for decades. 18. On the other hand, it was the respondent’s (DW1) testimony that she was the deceased’s second wife, and that the deceased had two wives, with nine children in the rst house and eight in the second house. She stated that the deceased left behind two parcels of land, namely Parcel No. East Kitutu/ Botabori/418, which was ancestral land, and Parcel No. Ekerubo Settlement Scheme/185, which he had acquired through a loan. DW1 stated that both parcels of land had been occupied by the two houses and that each house had their own homestead therein. She maintained that the two houses were entitled to share the estate equally and opposed the appellant’s proposed mode of distribution. She rejected the proposal that she and the second house should receive only ve acres of Parcel No. Ekerubo settlement scheme/185. She stated that she had contributed towards the acquisition of the land by assisting the deceased in repaying the loan and that the property should therefore not be distributed in the manner proposed by the appellant. 19. The respondent further testied that Clement Mouko and Alfred Temu were the deceased’s brothers, and that they did not assist the deceased purchase Parcel No. Ekerubo settlement scheme /185 as alleged. She stated that Thomas Onyancha was a husband to one of the daughters in the rst house, that he did not contribute at all to purchase of the said land, and that he resided in Mombasa. She also denied that Joash was given a portion of the property by the deceased since he took care of him during his illness. She maintained that none of these third parties were entitled to inherit from the estate of the deceased. 20. Upon cross-examination, DW1 testied that Parcel No. Ekerubo settlement scheme/185 was acquired by the deceased before her marriage to him. She testied that the deceased never mentioned anything about his brothers having a share in the said property, and that he only told her of the donation to Ensoko SDA Church. She further stated that she only became aware of the deceased’s brothers’ houses on the said parcel of land in 2019, when she went there for a funeral. 21. DW2, Zablon Ombwori, stated that he was a relative of the deceased by virtue of the fact that their grandfathers were brothers. His evidence was essentially that the rst house had taken occupation of the larger portions of the deceased's estate. He stated that the rst house occupied the settlement scheme land and also had a substantial portion of the ancestral land, whereas the second house occupied only a smaller portion of the ancestral land. He therefore supported the respondent's assertion that the existing occupation had resulted in the second house being deprived of its share of the deceased's estate. 22. DW3, Nelson Ondieki, a clan elder, testied that he knew the deceased and his family well. He recalled attending a family meeting in September 2012 at which the distribution of the deceased’s land was discussed. According to him, the respondent sought an additional portion of settlement scheme land so that she could farm, and the meeting resolved that her portion would be increased, which request was opposed by the rst wife’s sons. He maintained that both houses occupied the ancestral land as well as the settlement-scheme land. His evidence was principally that the rst house occupied a larger https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1942/eng@2026-09-25 4

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portion of the estate as compared to the second house, and that the family had previously discussed increasing the respondent’s share to address that disparity. 23. DW4, Samson Peter Nyawincho, a church elder at Ensoko SDA Church, testied that the respondent donated a portion of parcel No. 418 measuring approximately 147ft x 41 ft to the church, and that the church was operational. 24. Upon considering the parties’ respective arguments and the evidence placed before the court, the learned Judge, in a judgment delivered on 9th December, 2019, found that the only portion of the deceased’s land which was not available for distribution as part of the estate was the portion of LR No. Ekerubo Settlement Scheme/185 which had been sold or otherwise disposed of by the deceased to Rieteka SDA Church during his lifetime. The probate court observed that there was no evidence establishing any other valid disposition of the deceased’s property during his lifetime. The remainder of the estate therefore remained available for distribution among the beneciaries from the two houses in accordance with Section 40 of the Law of Succession Act. 25. With regard to Parcel No. East Kitutu/Botabori/418, the probate court considered the respondent’s evidence that she had donated a portion of the land to Ensoko SDA Church, and directed that the portion so donated be hived o from the share of the estate due to the respondent or her house. The court also considered the claim concerning a portion of the estate allegedly given to Joash Omboga, the deceased’s grandson. The court found that the disposition did not constitute a gift made in contemplation of death under Section 31 of the Law of Succession Act, as the necessary requirements for a valid gift in contemplation of death had not been established. 26. With respect to Parcel No. Ekerubo Settlement Scheme/185, the learned Judge determined that the appellant’s contention that the property was jointly owned by Clement Mouko, Alfred Temu and Thomas Omboga was not suciently proved, as there was no evidence tendered to show their contribution in purchase of the said parcel. Applying Section 40 of the Law of Succession Act, the court held that the property ought to be divided equally between the two houses, after the exclusion of the portion that had been sold to the church. The share allotted to each house was thereafter to be divided equally among the children of that house, without discrimination on the basis of gender. 27. Aggrieved by this decision, by his memorandum of appeal dated 16th November, 2020, the appellant lodged an appeal before this Court premised on ve (5) grounds of appeal. First, he was aggrieved that the learned Judge erred in law in holding that Parcel No. Ekerubo Settlement Scheme/185 be subdivided equally between the two houses, without considering that the deceased acquired the said property together with the rst wife, before the respondent married the deceased. Secondly, the appellant faulted the nding that Parcel No. East Kitutu/Botabori/418 ought to be equally subdivided between the two houses, contending that the evidence showed that the deceased had himself subdivided the land between the households and that the respective demarcations had already been clearly established. Thirdly, the appellant challenged the decision that the entire estate be distributed equally between the two houses, arguing that the learned Judge failed to take into account the distribution and dispositions made by the deceased during his lifetime. Fourthly, the appellant contended that the learned Judge erred in disregarding the interests and rights of persons who had contributed towards the acquisition of Parcel No.Ekerubo Settlement Scheme/185, notwithstanding evidence that such contributions had been recognized by the deceased, and that the contributors were consequently entitled to the corresponding interests in the said property. Lastly, the appellant contended that the learned Judge’s decision was against the weight of the evidence that was adduced. 28. The appeal was canvassed by way of written submissions. The parties did not highlight their written submissions but elected to rely on them as led. Learned Counsel Mr. Soire appeared for the appellant. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1942/eng@2026-09-25 5

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It was his submission that the learned trial Judge erred in distributing the deceased’s estate equally between the two houses without giving eect to the lifetime distribution made by the deceased. On Parcel No. Ekerubo Settlement Scheme/185, counsel argued that the property was acquired before the deceased married the respondent, and that she made no contribution towards its acquisition. He therefore submitted that she was not entitled to half of the property and should, at most, receive the ve acres allocated to her by the deceased, with the remainder going to the appellant’s mother’s household. On Parcel No. East Kitutu/Botabori/418, counsel contended that the deceased had already subdivided and demarcated the land between the two houses, and that the respective portions had been occupied and developed without any objection being raised. The trial court therefore erred in disturbing that arrangement. 29. Counsel further submitted that the court failed to consider the interests of other beneciaries and persons to whom the deceased had allocated portions of Parcel No. Ekerubo Settlement Scheme/185, including those who had contributed towards its acquisition. In particular, he referred to the portions allocated to Clement Mouko, Alfred Temu, Thomas Onyanchа and Joash Omboga. He maintained that these arrangements had been recognized not only by the deceased but also by the appellant and his family, and that the interests of those who had contributed towards the purchase of the land ought to have been protected. Counsel further submitted that Joash Omboga, the deceased’s grandson, and to whom the deceased had allocated 1½ acres of the said land, fell within the denition of a dependant under Section 29(b) of the Law of Succession Act. 30. Finally, counsel urged that the decision of the learned Judge was against the weight of the evidence, particularly in light of the respondent’s admissions that she had not contributed to the acquisition of Parcel No. Ekerubo/185, and that she did not know what had been happening on the land since 1980. He also pointed out that, although she disputed the entitlement of Clement, Alfred and Thomas, she admitted that she only became aware of their houses on the said property when she visited the land for a funeral in 2019. He urged us to allow the appeal, set aside the impugned decision, and distribute the estate in accordance with the deceased’s lifetime intentions. 31. In rebuttal, learned counsel for the respondent, Mr. Mulisa, submitted that LR No. Ekerubo Settlement Scheme/185 was registered in the deceased’s name in 2010, while the respondent had married him in 1969. He stated that the appellant produced no evidence proving his mother’s alleged contribution to its acquisition and, having since died, she could not assert such a claim. He maintained that the appellant, being a child and not a surviving spouse, could not claim his deceased mother’s alleged interest. Counsel therefore urged that Sections 35 and 40 of the Law of Succession Act applied, and the respondent was properly treated as an additional unit in the distribution. 32. Regarding Parcel No. East Kitutu/Botabori I/418, Mr. Mulisa argued that the alleged subdivision by the deceased during his lifetime was not proved. He contended that there were no minutes, consent from the Land Control Board, transfer documents or other evidence showing that the deceased had legally divested himself of the said property. He asserted that the evidence merely established occupation of portions by the respective households, which, without more, did not amount to a lifetime distribution or gift. 33. Counsel further submitted that the third parties alleged to have contributed to the acquisition of Parcel No. Ekerubosettlement scheme/185 were neither beneciaries nor creditors of the estate, and none had made any claim in the succession proceedings. Their alleged contributions were also unsupported by documentary evidence. He submitted that in particular, PW2 admitted that he did not know the amounts allegedly contributed by himself or the other persons, and that their names did not appear on the title. Counsel therefore maintained that the appellant was merely attempting to introduce claims on behalf of persons who had not themselves asserted any entitlement. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1942/eng@2026-09-25 6

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34. Finally, counsel submitted that the appellant had failed to discharge the evidential burden of proving the alleged lifetime distribution and contributions. He argued that the learned Judge had considered the evidence, the number of children in each household and the surviving spouse, and exercised her discretion under Section 40 of the Law of Succession Act to achieve a fair and equitable distribution. Counsel invited us to nd that there was no basis for interfering with the trial court’s decision, and to dismiss the appeal. 35. This being a rst appeal, our duty was well stated in Selle and Another v. Associated Motor Boat Co. Ltd [1968] E.A. 123, where the court observed as follows: “ An appeal to this Court from a trial by the High Court is by way of a retrial and the principles upon which this Court acts in such an appeal are well settled. Briey put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions, though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular this Court is not bound necessarily to follow the trial judge’s ndings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif v Ali Mhamed Sholan, (1955) E.A.C.A. 270)”. 36. We have considered the foregoing principles, the record and grounds of appeal as well as the rival submissions by parties to the appeal. The gravamen of the appeal, in our view, is whether the learned Judge erred in treating the two parcels of land, namely Parcel Nos. East Kitutu/Botabori 1/418, and Ekerubo Settlement Scheme/185 as forming part of the deceased's estate available for distribution under Section 40 of the Law of Succession Act, notwithstanding the appellant's contention that the deceased had during his lifetime distributed portions of the said properties to the two houses and to certain third parties. 37. We begin with parcel No. Ekerubo Settlement Scheme/185. There is no dispute that the said parcel of land was registered in the name of the deceased. The appellant's case was, however, that the property had been acquired by the deceased together with his rst wife before the respondent was married to him, and that portions thereof had been allocated to the deceased’s brothers, namely Clement Mouko and Alfred Temu, his son- in-law Thomas Onyancha, and his grandson, Joash Omboga. It was further contended that the rst and second houses had been allocated eight and ve acres respectively. The appellant thus sought to have substantial portions of the said parcel of land excluded from the estate before distribution. 38. The question was not merely whether the alleged third parties were in occupation of portions of the land. Rather, the appellant had to establish that the deceased had, during his lifetime, divested himself of his proprietary interest in those portions, whether by sale, gift inter vivos, or some other legally recognizable disposition. Section 3 of the Law of Succession Act denes the estate of a deceased person as his “free property”, namely property of which he was legally competent to freely dispose during his lifetime and in respect of which his interest had not been determined by his death. A probate court therefore distributes only property that remained the deceased's free property at the time of his death. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1942/eng@2026-09-25 7

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39. In essence, transactions by which a deceased had, during his lifetime, validly disposed of his property, may take such property outside his estate and will not be available for distribution to his beneciaries. In Munyole v Munyole [2022] KECA 373 (KLR), this Court held thus: “There is provision in the Act, however, for any gifts or settlements made by the deceased to any beneciaries in his lifetime to be taken into consideration in the distribution of the estate. 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 benet of a child, grandchild or house; or (b) 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 nally accruing to the child, grandchild or house. In order for the court to conclude that a deceased person had made a gift inter vivos to a beneciary, evidence must be led to this eect.” 40. The law equally recognizes two distinct categories of gifts: gifts inter vivos, being gifts made between living persons during the donor's lifetime, and gifts mortis causa, being gifts made in contemplation of the donor's death. In Kagina v Kagina & 2 others [2021] KECA 242 (KLR), this Court held thus: “…a deceased person has capacity to divest himself of property during his lifetime known in law as gifts inter vivos, which in the Judge’s opinion, and correctly so in our view are not only protected under the Act but are also sanctionable by a court of law irrespective of whether they are perfect or imperfect. By perfect is meant, complete, meaning the transfer of the gift inter vivos in favour of the beneciary was eected and completed during the lifetime of the deceased, while by imperfect is meant the transfer of the gift in favour of the recipient was incomplete as at the time of the demise of the deceased. As correctly observed by the Judge, lack of completion of the process of transfer does not of itself render the gift inter vivos invalid. It can be perfected by the grant holder if there is no contest over it, or alternatively sanctioned by a court where proven.” 41. On the other hand, a gift mortis causa is specically governed by Section 31 of the Law of Succession Act and is valid notwithstanding that legal title has not been completely transferred, provided the statutory conditions are satised. Those conditions include that the donor was contemplating death from a present illness or imminent danger, that the subject matter is movable property which he could otherwise dispose of by will, that possession or the means of possession is delivered to the intended beneciary, and that the gift is intended to revert to the donor if he survives the illness or danger. 42. The issue before us, therefore, is whether the appellant proved any such disposition by the deceased during his lifetime. In our view, he did not. The appellant asserted that the deceased’s brothers, Clement and Alfred, as well as his son-in-law Thomas Onyancha, contributed towards the acquisition of Parcel No. Ekerubo Settlement Scheme/185, and that they were entitled to their respective portions thereof. We observed that the appellant, in his testimony, acknowledged that there were no written agreements documenting Clement's, Alfred's or Thomas’s alleged interests, and that the said property was still registered in the deceased's name at the time of his death. More signicantly, PW2, Clement Mouko, although asserting that he and Alfred had contributed towards repayment of the loan used to acquire the said property, was unable to state the amount contributed by himself or the amounts contributed by Alfred or Thomas. Crucially, no receipts evidencing the alleged repayment of the said https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1942/eng@2026-09-25 8

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loan by the said brothers of the deceased were produced. He also conrmed that there were no written agreements documenting their alleged interests in respect of the suit property. 43. The evidential deciency is signicant since the respondent opposed the alleged contributions. A nding that the deceased's brothers or other persons contributed towards the purchase of the said property would have serious consequences, because it would mean that portions of an otherwise recognized estate were to be excluded from distribution to the deceased's lawful beneciaries. Such a nding could not properly rest on a general assertion that persons contributed towards a loan without evidence of the nature, extent and legal eect of that contribution. 44. The evidence on record did establish that Clement and Alfred may have occupied portions of the said parcel of land for a number of years. The respondent herself admitted that she became aware of their occupation of the said property only later in 2019, and was unable to say when they had taken possession. However, occupation or use of the property is not synonymous with proprietary entitlement. The question remains: on what basis did they occupy the land, and did the deceased intend thereby to transfer a proprietary interest to them? The appellant did not satisfactorily answer that question. PW2’s evidence established neither the amount of his contribution nor that of the other alleged contributors. There was no agreement, transfer, title, or other documentary evidence establishing the alleged proprietary arrangement. Further, the persons said to have acquired substantial portions of the land, apart from Clement, did not themselves appear before the court or lodge claims asserting ownership or benecial interests in the estate. The appellant bore the burden of proving the armative proposition that the alleged occupants had acquired interests in the land. Section 107 of the Evidence Act provides thus: “ Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.” Clearly, the appellant failed to prove that the deceased disposed the said portions of the suit property to his brothers during his lifetime in acknowledgment of their alleged contribution to settle the loan. 45. We therefore agree with the learned Judge that the alleged joint acquisition by the deceased, Clement, Alfred and Thomas of parcel Ekerubo settlement scheme/185 was not suciently proved. 46. The appellant further alleged that the deceased, in his lifetime, gifted his grandson, Joash Omboga, 1½ acres of Parcel No. Ekerubo settlement scheme/185 because he had care of him during his illness. In our view, the alleged allocation of 1½ acres to Joash was not a gift mortis causa within the meaning of Section 31 of the Act. There was no evidence that the deceased made the alleged gift in contemplation of his death or that it was subject to the conditions prescribed by that provision. Rather, the appellant's case was that the deceased had, during his lifetime, gifted the portion to Joash in recognition of the care he had provided to him. The alleged disposition therefore falls for consideration as a gift inter vivos. 47. As this Court stated in Mugambi & 2 others v M'Mugambi [2025] KECA 1235 (KLR), evidence must be led to establish that the deceased intended to make such a gift. This Court expressed itself as follows: “ As this Court has stated in previous decisions, the ideal situation is where the gift inter vivos is complete. In the sense that it has been transferred to the name of the beneciary, or steps have been taken to eectuate the intention, such as obtaining the consent of the necessary authority if needed, signing of the transfer form, or there is occupation. In the case https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1942/eng@2026-09-25 9

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of Munyole vs. Munyole (Civil Appeal 21 of 2017) [2022] KECA 373 (KLR) (18 February 2022), this Court stated: “In order for the court to conclude that a deceased person had made a gift inter vivos to a beneciary, evidence must be led to this eect. We note that the trial court considered this question and came to the conclusion that no evidence had been placed before it to show that the deceased had intended that each house should occupy the parcel of land that it was occupying at the time of his death.” 48. In the present case, the evidence did not establish a completed or otherwise legally recognizable gift inter vivos. The mere assertion that the deceased had allocated 1½ acres to Joash, without further evidence of an intention to divest himself of his proprietary interest, was insucient to take that portion outside his free property. 49. We now turn to the appellant's contention that the deceased had already distributed his estate between his two houses. There was evidence on record that the two houses occupied dierent portions of the two properties, and that there were physical demarcations on the ground. The witnesses from both sides testied to the respective portions occupied by the two houses. However, in our view, the mere act of the deceased pointing out portions of his land to family members for their use did not, without more, amount to a divestment of his ownership or control over the property so as to take it outside the ambit of his “free property” under Section 2 of the Law of Succession Act. Unless there is evidence demonstrating an intention by the deceased to relinquish his rights and control over the portions so identied, the more reasonable inference is that he merely conferred a right of occupation and use, rather than eected a transfer of his proprietary interest. 50. We recognize and concur with the persuasive decision of Musyoka J. in In re Estate of Chesimbili Sindani (Deceased) [2021] KEHC 6616 (KLR) where the learned Judge observed thus: “The mere fact of being shown a piece of land and given permission to occupy and use it, without more, is not adequate proof for a gift inter vivos. The deceased, as registered proprietor of the land in question, would have the right to licence a person to occupy the land and use it. A child who has been shown a piece of land to build on and to till, is not in the shoes of an owner, but a mere licencee. The death of the deceased would not upgrade the licence to ownership, if anything the death of the proprietor could mean that the license comes to an end, and the licencee continues to occupy and work the land at the mercy of the administrator. …There was no gift inter vivos to any of the children of the deceased, and, therefore, the entire estate of the deceased comprises of free property available for distribution by the court in these conrmation proceedings. I am persuaded that the deceased had only licensed the sons to utilize certain assets, and as a result they had put up structures on those assets, any distribution of the assets ought to take into account those assets, and ensure that the particular sons are allocated shares in the parcels of land where they have put up structures.” 51. Similarly, Mrima J. in another persuasive decision in Dan Ouya Kodwar v Samuel Otieno Odwar & another [2016] KEHC 4196 (KLR) observed thus: “ I agree that despite there being the presence of evidence of trees and sisal plants demarcating the land into three portions, that was done for the convenient use of the land which is a common practice in polygamous families but the land remained in the sole control of the deceased. Whereas such demarcations are usually very useful in the distribution of land https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1942/eng@2026-09-25 10

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where the beneciaries readily agree, that may not be the position when the beneciaries are not in agreement. I therefore nd that the land forms the estate of the deceased and that the same was not sub-divided by the deceased in his lifetime and that no portion was owned exclusively by any of the three wives of the deceased. In the circumstances the land shall be distributed in accordance with the Act.” 52. In this appeal, the evidence of occupation and demarcation was not accompanied by sucient evidence demonstrating that the deceased had actually divested himself of his two parcels of land. There was no transfer instrument, Land Control Board consent or other documentary evidence demonstrating that the alleged subdivision was intended to constitute a completed disposition. The appellant was required to go further and demonstrate that the deceased intended to make legally eective lifetime dispositions in favour of the alleged beneciaries or third parties. As we have already found, that burden was not discharged. We therefore nd no basis for faulting the learned Judge for treating the two properties as part of the deceased's free estate available for distribution. 53. Having found that the disputed portions of land remained part of the deceased's free estate, the next question is whether the learned Judge correctly applied Section 40 of the Law of Succession Act in distributing the deceased’s estate. Section 40(1) provides as follows: “ Where an intestate has married more than once under any system of law permitting polygamy, his personal and household eects and the residue of the net intestate estate shall, in the rst instance, be divided among the houses according to the number of children in each house, but also adding any wife surviving him as an additional unit to the number of children.” 54. This principle was explained by this Court in Elizabeth Chepkoech Salat v Josephine Chesang Chepkwony Salat [2015] KECA 650 (KLR) as follows: “ Section 40 of the Act does not give discretion to a court to deviate from the general principles therein enunciated. Where a matter is contentious and the parties have not reached a consent judgment, the court is bound to apply the statutory provisions. More specically, the court has no power to substitute the statutory principles for its own notion of what is an equitable or just decision. However, court has a limited residuary discretion within the statutory provisions to make adjustments to the share of each house or of a beneciary where, for instance, the deceased had during his lifetime settled any property to a house or beneciary or to decide which property should be disposed of to pay liabilities of the estate or to determine which properties should be retained by each house or several houses in trust. As this Court said in Mary Rono v. Jane Rono & Another, Civil Appeal No. 66 of 2002 (Eldoret) [2005] eKLR, section 40 does not provide for equality between houses or that each child must receive the same or equal portion. The application of section 40(1) is illustrated by the case of Catherine Nyaguthii Mbauni v Gregory Maina Mbauni, Civil Appeal No. 34 of 2004 (Nyeri) [2009] eKLR where the Court shared the net intestate estate according to a ratio reecting the number of units in two houses.” 55. In the present case, rst house comprised of nine children. The second comprised eight children and the respondent as the surviving spouse, making nine units in total. Thus, application of Section 40 of the Act resulted in an equal share between the two houses. 56. The appellant's argument that the respondent should receive only the ve acres allegedly allocated to her during the deceased's lifetime could only succeed if the alleged lifetime allocation were established as https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1942/eng@2026-09-25 11

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a disposition capable of being taken into account under Sections 40 and 42 of the Law of Succession Act. The learned Judge, like us, was not satised that the appellant had proved the alleged lifetime disposal of the suit property. 57. We think we have said enough to demonstrate that the appellant did not establish that the deceased had, during his lifetime, validly divested himself of his proprietary interests in the disputed portions of the estate. While the evidence established that certain persons occupied and utilized portions of the land, it did not suciently establish the nature or basis of that occupation, the alleged contributions towards the acquisition of the land, or an intention by the deceased to transfer his proprietary interests to them. The alleged lifetime allocations to the two houses and to Joash similarly fell short of establishing valid dispositions as gift inter vivos. In the circumstances, the learned Judge was entitled to treat the disputed properties, save for the portions in respect of which a valid disposition had been established, as the deceased’s free property, and to distribute them in accordance with Section 40 of the Law of Succession Act. We nd no basis upon which to interfere with her ndings or the orders owing therefrom. 58. Ultimately, the appeal is consequently without merit and is hereby dismissed. As this is a dispute between members of the same family, we direct that each party shall bear their own costs of the appeal. DATED AND DELIVERED AT KISUMU THIS 25TH DAY OF SEPTEMBER, 2026. ASIKE-MAKHANDIA ........................... JUDGE OF APPEAL H.A. OMONDI ......................... JUDGE OF APPEAL L. KIMARU ......................... JUDGE OF APPEAL I certify that this is a true copy of original. Signed. DEPUTY REGISTRAR. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1942/eng@2026-09-25 12

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