Why It Is Illegal to Buy Property Registered in a Deceased Person’s Name in Kenya

In Kenya, many unsuspecting buyers lose millions of shillings by purchasing land or houses registered in the name of a deceased person before succession is properly undertaken. In many such transactions, the seller, often a family member of the deceased, presents themselves as having authority to sell, without having completed the mandatory succession process. Such transactions are not merely risky; they are often illegal, null and void, and can amount to criminal intermeddling with a deceased’s estate under the Law of Succession Act.

This article answers the most important legal questions surrounding the sale and purchase of property belonging to deceased persons in Kenya, the dangers involved, the law governing such transactions, the penalties for intermeddling, and how buyers can legally protect themselves.

Why Does Property Remain in a Deceased Person’s Name After Death?

When a registered landowner dies, their title does not automatically pass to their family, children, or spouse. The property legally remains “frozen” in the name of the deceased until a court formally transfers it to the beneficiaries through the succession process. This means that upon death, no family member, not even a spouse or child, automatically acquires the legal capacity to deal with the deceased’s property. The Law requires the family to initiate a formal court-supervised succession process before any property can be transferred, sold, or otherwise disposed of.

The fact that property is still registered in the name of a deceased person is a strong indicator that succession has not been undertaken. Under the Law of Succession Act, Cap. 160, the principal statute governing the transmission of property after death in Kenya, the estate of a deceased person must be administered either through probate (where a will exists), or letters of administration (where there is no will) before any transfer of property can legally occur.

Until those formal court processes are completed, no beneficiary, family member, or third party has legal authority to deal with, sell, charge, or transfer any property belonging to the deceased.

What does it mean for property to still be in the name of a deceased person?

When property remains registered in the name of a deceased individual, it is a clear indicator that the succession process has not been undertaken or completed. The register has not been updated to reflect the transmission of the property to the lawful beneficiaries or to a duly appointed personal representative.

In Kenya’s system of title registration, now governed by the Land Registration Act, 2012, the register is the definitive record of ownership. The Act defines a “transmission” as the passing of land from one person to another by operation of law on death, and this can only happen after a court-issued grant of representation has been obtained and confirmed.

Section 55(1) of the Law of Succession Act is explicit: no capital assets constituting a net estate shall be distributed or any property divided before there is confirmation of the grant. Property still in a dead person’s name is, therefore, an undistributed estate; succession has not been completed.

A property cannot lawfully change hands until the register is updated. Where a deceased person’s name remains in the title deed, it signifies one or more of the following:

• No application for a grant of representation (probate or letters of administration) has been made to the High Court.
• A grant may have been made but not yet confirmed by the court.
• A confirmed grant exists, but the personal representative has not yet executed a transmission or assent to transfer the property to the beneficiaries.
• The beneficiaries are in dispute, and the estate remains unadministered.

What Is Intermeddling with an Estate and Is It a Criminal Offense?

Yes, intermeddling with a deceased person’s estate is a criminal offense under Kenyan law.

Section 45(1) of the Law of Succession Act, Cap. 160 provides as follows:

“Except so far as expressly authorized by this Act, or by any other written law, or by a grant of representation under this Act, no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person.”

The term “intermeddling” is defined in Black’s Law Dictionary (6th Edition) as the act of wrongfully interfering with property or business affairs without right or title. The courts have given this a broad interpretation. In Benson Mutuma Muriungi v CEO, Kenya Police SACCO & Another [2016] KEHC 7145 (KLR), the court held that “any act or acts which will dissipate or diminish or put at risk the free property of the deceased are acts of intermeddling in law”.

Free property, in relation to a deceased person, means the property of which that person was legally competent to freely dispose during his lifetime, and in respect of which his interest has not been terminated by his death.

Acts that constitute intermeddling include:

• Taking possession or occupation of the deceased’s property.
• Disposing of, selling, or transferring property.
• Exchanging, donating, or distributing property.
• Charging, mortgaging, or leasing out the property.
• Receiving or paying out proceeds from the property.
• Entering into an Agreement for Sale in respect of estate property before a confirmed grant.
• Collecting rental income from estate property without a grant.
• Subdividing or constructing on estate land without authority.

Critically, the courts have confirmed that even a beneficiary, a spouse or a child of the deceased, can be an intermeddler if they deal with estate property without a confirmed grant. In Re Estate of Ndiba Thande (Deceased) [2013] KEHC 6250 (KLR), Justice Musyoka stated: “It is fallacious for a spouse or child to imagine that they cannot be guilty of intermeddling when they handle property belonging to their dead spouse or parent without a grant of representation.”

What Are the Penalties for Intermeddling with a Deceased Person’s Estate?

Section 45(2) of the Law of Succession Act prescribes two categories of consequences for intermeddling:

Criminal Consequences

Any person who contravenes Section 45 shall be guilty of a criminal offence and shall be liable to:

• A fine not exceeding Ksh. 10,000; or
• Imprisonment for a term not exceeding one year; or
• Both such fines and imprisonment

Civil Consequences

Beyond criminal liability, the intermeddler shall be answerable to the rightful executor or administrator to the extent of the assets with which he has intermeddled, after deducting any payments made in the due course of administration.

This means a buyer who participates in an unauthorized transaction may be personally liable to the estate and its lawful beneficiaries for the full value of the assets involved. Further, courts have consistently held that such transactions are null and void ab initio, invalid from the very beginning, meaning even an innocent buyer may find their purchase reversed.

In Marteve Guest House Limited v Njenga (Civil Appeal 400 of 2018), the Court of Appeal ruled that any exercise of power sale over a deceased’s charged land, without compliance with the Law of Succession Act, renders the entire process null and void. Notably, entering into a sale agreement before a grant of administration had been obtained amounted to intermeddling.

What are the key legal risks of buying property registered in a deceased person’s name?

Buyers who proceed with such a transaction expose themselves to a range of serious legal, financial, and practical risks:

What Limited Grants Can the Family of a Deceased Take When They Need Funds Urgently?

The Law of Succession Act recognizes that families sometimes face urgent financial needs while full succession proceedings are ongoing. Under Section 54 of the Law of Succession Act and Rule 73 of the Probate and Administration Rules, courts may issue limited grants, temporary, purposive grants that do not confer full administrative powers but allow specific, urgent actions.

The Fifth Schedule of the Law of Succession Act outlines the various forms that limited grants may take. Below are the key types:

1. Grant Ad Colligenda Bona(Collection and Preservation)
   This is the most commonly used limited grant. It is issued where urgent circumstances exist, such as the need to pay school fees, upkeep expenses, or prevent estate assets from being wasted, before a full grant can be obtained. The grantee may only collect and preserve the estate; they cannot sell or distribute property. This grant has been used in Kenyan courts to authorize:
   • Withdrawal of funds for school fees – to enable the applicant to access bank funds for her children’s school fees
   • Collection of rental income from the deceased’s properties pending full succession
2. Grant Ad Colligenda Bona Defuncti
   This is a specialized collection grant used where the estate contains perishable assets or assets requiring urgent action. It is provided under Rule 36(1) of the Probate and Administration Rules.
3. Grant Ad Litem(For Litigation Purposes)
   This limited grant is issued to enable a person to represent the estate in legal proceedings, either as a plaintiff or defendant, where the deceased had a cause of action or was a defendant that survives death. It does not confer authority to administer or distribute the estate.
4. Administration Pendente Lite(Pending Litigation)
   Issued when parties are disputing over the estate, this grant appoints a neutral administrator to manage the estate during the dispute. It prevents the estate from being un-administered or wasted while litigation is ongoing. No distribution of property can be made under this grant.
5. Grant De Bonis Non Administratis
   This grant is applied for when the original executor or administrator dies or is unable to complete their duties before the estate is fully administered. It authorizes a new administrator to complete the remaining administration.
6. Grant Durante Estate Minore
   Issued when the beneficiary is a minor and legally incapable of acting as an executor or administrator. This grant appoints a suitable adult to manage and preserve the estate on behalf of the minor until they attain the age of majority.
7. Grant Durante Absentia
   A limited grant is issued when the person entitled to administer the estate is temporarily absent from Kenya. It appoints an administrator to manage and preserve the estate during the period of absence.
8. Grant Cessate
   Issued when an earlier limited grant has expired or lapsed, and there is a need to continue the administration of the estate pending a full grant.

Key Point:    Limited grants are temporary and purposive. They do not pass through the confirmation process under Section 71 of the Law of Succession Act, and they do not authorize the distribution or sale of estate assets unless the court expressly includes such powers.

Key Considerations for Persons Intending to Buy Property from a Deceased’s Estate

If you intend to purchase property that previously belonged to a deceased person, you must conduct rigorous due diligence before committing any funds. Here are the critical checkpoints:

1. Verify That a Confirmed Grant of Representation Exists: The seller must hold either a confirmed grant of probate (where the deceased left a will) or a confirmed grant of letters of administration (where the deceased died intestate). An unconfirmed grant is insufficient, Section 55(1) prohibits any distribution before confirmation.
2. Check the Schedule of Distribution: Ensure the property you are buying is explicitly listed in the court-approved distribution schedule.
3. Conduct a Thorough Title Search: Conduct both an ordinary searchand a green card search at the relevant Lands Registry. The green card search will reveal the full ownership history of the property, including whether the registered owner is deceased and any encumbrances, cautions, restrictions, or inhibitions on the title.
4. Check the Succession Court File: Review the succession court file to confirm:
   • Whether the grant has been confirmed
   • Whether there are any pending disputes, objections, or applications for revocation of the grant
   • That all beneficiaries are accounted for and their consent obtained where necessary
5. Verify the Identity and Authority of the Seller: Confirm that the person selling the property is the duly appointed and confirmed administrator or executorof the estate, and that they have authority under the confirmed grant to sell specific estate assets.
6. Obtain Spousal Consent Where Required: Section 93 of the Land Registration Act requires spousal consent before any transaction in matrimonial property can occur. This is particularly important in succession sales involving a matrimonial home.
7. Check for Land Control Board Consent: Where the property is agricultural land, confirm that Land Control Board (LCB) consenthas been obtained under the Land Control Act. Transactions without LCB consent are void.
8. Confirm That All Debts and Encumbrances Are Cleared: Ensure that all land rates, rent arrears, and any mortgages or charges on the property have been discharged or that provision has been made for their payment from the estate.
9. Engage a Qualified Advocate: Never purchase property from a deceased estate without the guidance of a qualified advocate. Section 93 of the Law of Succession Act protects purchasers who transact with a confirmed personal representative, but this protection is not absolute where fraud or irregularities exist.
10. Do not pay the purchase price until all succession prerequisites are fulfilled. Structure payment to be conditional on production of the confirmed grant, transmission, or assent. Never release funds against a mere promise that succession will be completed after payment.

Frequently Asked Questions (FAQs)

Q: Can a child of the deceased sell their parent’s land before succession?
A: No. Even a direct child or spouse of the deceased has no legal authority to sell the deceased’s property until they have obtained and confirmed a grant of representation from a court. Any such sale is illegal and void.

Q: What happens if I have already bought property in a deceased person’s name?
A: You are in a precarious position. You should immediately seek legal counsel to see if the transaction can be “regularized” by assisting the family through the formal succession process, provided all beneficiaries agree.

Q: Can I buy the land if the Chief has written a letter saying who the heirs are?
A: No. A Chief’s letter is merely a supporting document used to start the succession process in court. It is not a title document and does not give anyone the power to sell land.

Q: Can I lodge a caution to protect myself if I have already paid a deposit?
A: Yes. Under Section 71 of the Land Registration Act, 2012, a person claiming a contractual right to obtain an interest in land may lodge a caution with the Registrar, preventing any dealings on the land without their knowledge. This is a protective but not a confirmatory measure, it does not validate an otherwise illegal transaction.

Q: Is a sale agreement signed before the succession process is completed valid?
A: No. Courts have constantly held that entering into a sale agreement before a grant of representation was obtained amounts to intermeddling. Such agreements are therefore illegal and unenforceable.

Q: Does Section 93 of the Law of Succession Act protect me as a buyer?
A: Section 93 protects purchasers who transact with a duly appointed personal representative holding a valid grant. However, the courts have noted that this protection is not absolute, particularly where fraud or noncompliance with the Act is involved.

Q: Is a property in a deceased person’s name suitable for due diligence clearance?
A: No. The presence of a deceased person as the registered proprietor is a red flag in any due diligence exercise. A buyer cannot claim to be a bona fide purchaser if the ownership history reveals a defect or illegality.

Q: How long does the succession process take?
A: A standard, non-contested succession takes roughly 6 to 9 months. It involves filing a petition, a 30-day gazettement period, and a 6-month waiting period before the grant can be confirmed.

How Njaga & Co Advocates LLP Can Assist You

At Njaga & Co Advocates LLP, we provide expert, client-centered legal services in succession law, property law, and conveyancing. Whether you are a family member navigating the succession process or a buyer seeking to verify a property transaction, our team is equipped to protect your interests at every step.

Our Services include:

• Succession Petitions: We assist families in obtaining Grants of Probate or Letters of Administration efficiently to ensure their loved one’s estate is legally settled.
• Application for Limited Grants, Where urgency demands, we apply for the appropriate limited grant (ad colligenda bona, ad litem, durante estate minore, etc.) on behalf of families.
• Property Due Diligence: For buyers, we conduct rigorous “root of title” searches to ensure you aren’t walking into an intermeddling trap.
• Conveyancing & Transmission: We handle the technical “Transmission” process, moving the title from the deceased to the administrator, and subsequently the “Transfer” to the buyer, ensuring 100% compliance with the Land Registration Act.
• Dispute Resolution: We offer mediation and litigation services in cases of estate disputes or contested inheritance.
• Compliance Advisory – We advise buyers, sellers, and financial institutions on compliance with the Law of Succession Act in property transactions involving deceased estates.