BY AMOS MUOKI

Picture a father lying in a bed at Kenyatta National Hospital, aware that his time is running out. He calls his son to his side, presses the car keys into his palm, and says, "If I don't make it through the night, this car is yours." Before dawn breaks, he is gone. Is his son now the rightful owner of that vehicle?

That question sits at the heart of one of the more curious corners of Kenyan succession law: the doctrine of donatio mortis causa, Latin for "gift in contemplation of death." It is neither a straightforward gift between the living nor a formal bequest under a will, but something suspended between the two, a final act of generosity that the law nonetheless takes very seriously.

A Gift of an "Amphibious" Nature

Lord Buckley once described this kind of gift as being "of an amphibious nature, being a gift which is neither entirely inter vivos nor testamentary." Put simply, it is handed over while the donor is still alive, yet it only truly takes effect once they have died.

In Kenya, where families tend to be close-knit and where serious illness often draws relatives together at a bedside, this scenario plays out more often than one might think. The doctrine gives these final gestures a legal footing. But it is not a loose or sentimental rule. The courts demand that several strict conditions be met before such a gift will be recognised. And these are now set out in Section 31 of the Law of Succession Act.

What the Law Actually Requires

For a deathbed gift to hold up, four things must all be true.

The first is that the gift must be made in contemplation of death. The donor does not need to be on the very brink of dying. It is enough that they believe, because of a present illness or some imminent danger, that death is a real possibility. 

Someone diagnosed with a terminal illness can validly make such a gift even if they go on to live for several more months, and the same applies to a person about to set off into genuine danger. There is one hard exception, however: suicide. Section 31(c) states plainly that a gift made in contemplation of death cannot stand if the death was caused by the donor's own suicide. The thinking behind this is straightforward, the law does not want to create any incentive, however small, connected to someone taking their own life.

The second requirement is that the gift must be conditional on death actually occurring. Should the donor recover from whatever illness or danger prompted the gift, it falls away entirely and the property must go back to them. Section 31 reflects this by allowing the donor to reclaim the gift at any point before death. This conditionality is really what separates a donatio mortis causa from an ordinary gift, which, once given, is final.

Third, there must be genuine delivery. The donor has to actually part with the property, or hand over the documents proving ownership of it , and this is often where these claims fall apart in court. Simply passing a title deed to a relative and asking them to "look after it" is not delivery in the eyes of the law; it is safekeeping, not a gift, because the donor never gave up control. The test the courts apply is whether the donor truly intended to relinquish dominion over the item. 

Fourth, and finally, the gift must involve movable property. Section 31(b) is explicit that land and other immovable property simply cannot be transferred this way. Cars, jewellery, shares , these can all be the subject of a valid deathbed gift. Cheques and promissory notes, interestingly, cannot, because the courts have found them unenforceable without separate consideration. So while a dying Kenyan can hand over the keys to a car, they cannot use this doctrine to give away land.

Why This Matters for Kenyan Families

The consequences of a valid donatio mortis causa are significant. Property passed this way sits entirely outside the deceased's estate. Accordingly, it cannot be clawed back by other beneficiaries under a will, nor claimed through the ordinary rules of intestate succession. 

A will written afterward cannot undo it either; once the gift is validly made, the same property cannot be bequeathed to someone else. There is a caveat worth noting, though: if the estate later turns out to have insufficient funds to settle the deceased's debts, the gifted property can still be pulled in to satisfy creditors.

Not the Same Thing as an Oral Will

It's easy to confuse a deathbed gift with an oral will, but the two work quite differently. An oral will can be made at any time, whereas a donatio mortis causa only arises when death is being contemplated. An oral will requires no delivery of property, while a deathbed gift depends entirely on it. Recovery from illness has no bearing on an oral will, but it automatically undoes a donatio mortis causa. And where an oral will's property becomes part of the estate, a valid deathbed gift bypasses the estate altogether. 

The Suicide Exception

The bar on gifts taking effect where death is caused by suicide has deep roots in public policy. English courts going back to the nineteenth century consistently refused to uphold gifts intended to take effect through suicide, reasoning that the law should never be seen to reward or encourage the taking of one's own life. That principle carries through directly into Kenyan law today: even where every other condition is satisfied, a gift made by someone contemplating suicide simply cannot take legal effect.

Practical Guidance for Families Facing This Situation

Anyone who finds themselves navigating a deathbed gift should keep a few things firmly in mind. The donor must be of sound mind and acting voluntarily, with a clear understanding of what they are giving away. Even though delivery is the legal linchpin, it helps enormously to have witnesses present or some form of written record, in case the gift is ever challenged in court.

It is worth remembering, too, that only movable property qualifies. Therefore, land and houses are off the table no matter how clearly the wish is expressed. And ultimately, if someone wants to make lasting, comprehensive provision for their loved ones, a properly drafted will remains the far safer route.

The Legal Framework at a Glance

Section 31 of the Law of Succession Act provides that a gift made in contemplation of death is valid where the donor contemplates death from a present illness or imminent danger; the property given is movable and of a kind the donor could otherwise dispose of by will; the property (or title to it) is actually delivered to the beneficiary; the donor intends the gift to revert should they survive; the donor in fact dies, from any cause, without surviving the danger contemplated; and the recipient survives the donor.

Guiding Cases

The doctrine's "amphibious" character was described in Re Beaumont (1902). Staniland v Willott (1850) established that the gift must arise from contemplation of approaching death through disease or peril. Cain v Moon (1896) is generally credited with setting out the four core conditions for a valid gift. Wildish v Fowler (1892) confirmed that handing over property merely for safekeeping does not amount to a gift. And Agnew v Belfast Banking (1896) affirmed that suicide invalidates the gift entirely.

Five Things Worth Remembering

Timing is everything , the gift must be made while death is genuinely being contemplated, not simply hoped for or feared in the abstract. Delivery is non-negotiable ; the donor must actually give up control, not merely talk about doing so. Only movable property can be given this way; land and houses are excluded outright. 

Suicide invalidates the gift, in keeping with long-standing public policy. And the recipient must outlive the donor, or the gift fails regardless of how properly everything else was done.

This column is for informational purposes only and does not constitute legal advice. Consult a qualified professional for guidance specific to your circumstances.