The Law on Transferring land Inter vivos in Kenya

Introduction

Inter vivos is a Latin term that refers to when one transfers a gift to another person during their lifetime. For this type of a gift to be valid, it must be between two living persons, be capable of delivery, donative intent and acceptance have to be proved.

A gift can be defined as the transfer of an existing movable or immovable property made voluntarily and without consideration, by one person (the donor) to another (the donee) and accepted by or on behalf of the donee.

Such acceptance must be made during the lifetime of the donor that is while they are still capable of giving. If the donee passes on before acceptance, the gift becomes void.

What does the law require with respect to a gift inter vivos?

In her decision, Nyamweya J. in Re Estate of The Late Gedion Manthi Nzioka (Deceased) [2015] eKLR stated that:

“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.”

Is Stamp Duty payable on gifts inter vivos?

Clause 52 of the Stamp Duty Act Cap 480 states that any conveyance or transfer operating as a voluntary disposition inter vivos shall be chargeable stamp duty as if it were a conveyance or transfer on sale.

However, Stamp Duty is not payable if:

a) the conveyance or transfer is in favor of any body of persons incorporated by special Act and that body is by its Act precluded from dividing any profit amongst its members and the property conveyed is to be held for the purposes of an open space or for the purposes of its preservation for the benefit of the Republic of Kenya; or

b) any body of persons established for charitable purposes only or the trustees of a trust so established.