The Law of Gifts, Kenyan Property Law

By Cynthia Mbugua LLB

Definition

The lay definition of the word gift is something voluntarily transferred by one person to another without compensation[1]

A gift is defined as a voluntary transfer or conveyance of property or property intrest from one individual to another, made gratuitously to the recipient and not upon any consideration. If there is any consideration, then the law of gifts does not apply. The individual makes the gift is known as the donor, and the individual to whom the gift is made is called the donee.[2]

The Transfer of Property Act defines a gift as “122.”Gift” is the transfer of certain existing movable or immovable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee. Such acceptance must be made during the lifetime of the donor and while he is still capable of giving. If the donee dies before acceptance, the gift is void.”

Origin of the Principle of Gifting

The earliest record of gift giving is recorded in the Bible. This is whereby God granted man, in Genesis Chapter 1, the right to exercise dominion over all the earth. It is argued that this grant of authority conveyed title to mankind[3]. Man was to make use of all that was on the land, to use it as appropriate. This can be compared to the modern law of property whereby an owner possesses the rights of use and disuse.

A few theorists were in support of this view, among them, Sir William Blackstone who stated that the dominion mandate was an “immediate gift of the Creator” and therefore became the “general property of mankind”.[4] John Locke referred to King David’s statement in Psalms 115:16 also assumed that God had given the earth and its contents “to mankind in common”.[5]

Locke saw the moral foundation of property rights as embodied in one’s output. That is the labour theory, of one’s property is determined by the labour made on it. This was however criticised by Drukheim whereby he stated that the theory did not justify acquisition of property by gift, that is, without labour.

A.M Honoroes incidents of ownership provide for the right of transmitability that is, an owner may transfer the entitlements of ownership to another person including by gifting.

Gift giving has grown with civilization being witnessed through the Egyptian early ages whereby gifts were given to leaders as a show of loyalty. They were in form of silver and gold and jewels: chalices, medallions, statues and other articles. 

Elements required for a gift to be valid

There are specific requirements needed to consider whether or not a gift has been made from one person to another. The requirements are stated in the case of Gruen v Gruen [6].The Court reiterated in Gruen that the elements of a valid gift are intent on the part of the donor to make a present transfer, actual or constructive delivery to the donee, and acceptance by the donee. 

First and foremost, there has to be a form of delivery to the donee or to a third party whereby the item in question may eventually be termed as a gift when it reaches the donee. It will be termed as a gift when the donor of the gift lets go of the gift to the donee. If the gift is still under his or her name, it ceases to be a gift because he/she still possesses it. In the case of Mirvish v Mott[7], the Court held that “requirement of delivery may be met by physical delivery of the gift itself or by a constructive or symbolic delivery such as by an instrument sufficient to divest the donor of dominion and control”. 

Therefore there are two types of delivery of gifts. The first one is symbolic delivery which according to the Black’s Law dictionary states that it is The constructive delivery of the subject-matter of a sale, where it is cumbersome or inaccessible, by the actual delivery of some article which is conventionally accepted as the symbol or representative of it, or which renders access to it possible, or which is evidence of the purchaser’s title to it. The other type of delivery is known as constructive delivery. In this case, the property itself is not transferred but something giving access to and control over it. For example giving the donee the keys to a safe deposit box[8]

The other requirement is donative intent. For an item to be classified as a gift, the donor has to show that he had intended to make it a gift. Delivery only does not indicate that the item in question is a gift. However the legal capacity also determines whether the court will rule in the favour of the donor or donee. An infant in this case will not be held liable because they are not of the legal capacity. Most of the time donative intent and delivery happen simultaneously in that if for example I give you a pencil, I’ll have delivered the pencil to you with the intention of you accepting or denying it.

The final requirement is acceptance of the gift. The gift can be revoked before acceptance but once it is taken by the donee, ownership is transferred to the donee. Ownership of the gift depends on the decision of the donee and the donor cannot at any point forcefully make the donee take the gift. The Transfer of Property Act of 1882[9] states that acceptance must be made during the lifetime of the donor and while he is still capable of giving. If the donee dies before acceptance, the gift is void

Types of Gifts

There are 2 types of gifts according to Law. 

· Inter vivos gift. 

This gift is one among living persons and delivery, donative intent and acceptance have to be proved so that a gift can be valid. 

· Gifts causa mortis or donation causa mortis. 

The Blacks’ Law dictionary states that it is a gift made by a person in sickness, who, apprehending his dissolution near, delivers, or causes to be delivered, to another the possession of any personal goods, to keep as his own incase of the donor’s decease. The sickness must be major and one that higher chances are that the donor will die. In the case whereby the person wants to reserve his property and he dies before transferring ownership but he had told someone he would gift them invalidates the gift because there was no delivery and acceptance. 

The Law of Succession act states in section 31 about the gifts causa mortis. It is stated that four things have to be proved so as to prove that a gift is a gift causa mortis. They are:

i. The gift must be in contemplation of death. This is that the donor must believe that they are dying soon

ii. The gift must be conditional on the donor’s death .Section 31(d) provides that a gift in contemplation of death would be valid if the donor makes the gift in such circumstances as to show that he intended it to revert to him should he survive the contemplated illness or danger .A donatio mortis causa is revocable and section 31(ii) states that the donor may at any time before his death lawfully request the donee to return the gift.

iii. The gift must be delivered to the donee. Section 31(c) of the Act states that a gift in contemplation of death would be valid if there is delivery to the intended beneficiary of the possession of the property or of the documents or other evidence of title of the party.

The property in question must be one that can be defined as a causa a donation mortis causa. Section 31(b) of the Act provides that a gift in contemplation of death would be valid if a person gives movable property that he could otherwise dispose of by will. The subject matter should be something that can be given out as a gift.

Other laws of Kenya Relating to Gifts

The Matrimonial Property Act of Kenya under section 15 provides; “Where a spouse gives any property to the other spouse as a gift during the subsistence of the marriage, there shall be a rebuttable presumption that the property thereafter belongs absolutely to the recipient.”

It is important to take note of section 124 Transfer of Propert Act that states “A gift comprising both existing and future property is void as to the latter” . This is to mean that a gift promised is void and therefore cannot be enforced, further such a person has no rights over the property in question.

The general rule is that a gift that is proved to consist all required elements may not be revoked unless as per section 126 of Transfer of Property Act which states:

The donor and donee may agree that on the happening of any specified event which does not depend on the will of the donor a gift shall be suspended or revoked; but a gift which the parties agree shall be revocable wholly or in part at the mere will of the donor, is void wholly or in part, as the case may be. A gift may also be revoked in any of the cases (save want or failure of consideration) in which, if it were a contract, it might be rescinded. 

The final part of the section simply denotes instances such as fraud or misrepresentation.

The Transfer of Property Act also provides that Subject to the provisions of section 127, where a gift consists of the donor’s whole property, the donee is personally liable for all the debts due by the donor at the time of the gift to the extent of the property comprised therein.

[1] Merriam Webster Dictionary


[2] Black’s Law Dictionary


[3] Biblical Principles of Law_ Herbert W. Titus


[4] W. Blackstone, Commentaries on the Laws of England(1776) Vol 2,3


[5] John Locke Second Treastise of Government (1764) , 19


[6] 68 N.Y.2d 48, 505 N.Y.S.2d 849, 496 N.E.2d 869 (1986)


[7] 18 N.Y.3d 510 (2012)


[8] Property: Examples and Explanations page 67


[9] Section 122