Buying property from a family after the registered owner has died can appear straightforward. The relatives may be known to you, the price may be attractive and everyone may agree that the property should be sold. But where the property is still registered in the name of a deceased person, the transaction carries serious legal risk.
Under Kenyan succession law, estate property should generally be dealt with through the proper succession process. Section 45 of the Law of Succession Act prohibits a person from taking possession of, disposing of or otherwise intermeddling with the free property of a deceased person unless authorized by law or by a grant of representation. Courts have repeatedly treated unauthorized dealings with estate property as intermeddling.
This means that a buyer should be very careful before paying money for land or property still registered in a deceased person’s name. The family member selling may not yet have legal authority to sell, even if they are a child, spouse or beneficiary of the deceased. A sale made before the proper grant is obtained or before confirmation where required may expose the buyer to disputes, cancellation, refund claims or prolonged litigation.
The High Court in Francis Musyoki Kilonzo & another v Vincent Mutua Mutiso [2013] eKLR strongly warned against parties dealing with estate property without lawful authority, observing that such conduct may amount to intermeddling and may not attract the court’s protection.
For a purchaser, the practical lesson is simple: do not treat family consent as a substitute for legal authority. Before buying estate property, confirm whether succession proceedings have been filed, whether a grant has been issued, whether the grant has been confirmed where necessary and whether the administrator has power to transfer the property.
Property belonging to a deceased person is not ordinary property in the market. It is estate property, and the law protects it until the proper succession process is followed.
Key Insight
Before buying property registered in a deceased person’s name, verify the succession documents first. A good price is not worth years of litigation.