The provision of section 45 of the Law of Succession Act is not a mere procedural technicality
but a point of law that goes to the root of the validity of the sale of the suit property.
The law takes a very serious view of any interference with the property of a deceased person.
The section is clear that the status quo at the time of death of the deceased person ought to be
maintained until a grant has been issued by the court. Whoever purports to sell suit land has no
legal capacity to do so.
Several families in the larger Gusii region are entangled in property feuds with fears that the
majority of land buyers stand to lose their property once such cases are concluded in court.
A senior police investigator working in Nyamira County says that the majority of cases have
been reported in the Borabu settlement scheme where several families are yet to subdivide their
“Most landowners here are deceased. Their sons and daughters have resulted in selling land
without succession or acquisition of Grant of Administration letters.”
The investigator said land buyers have been duped with fake title deeds in cases where
succession has never been done. “Those involved in writing succession letters on behalf of
interested parties have been bribed and are out giving false information to the courts.”
According to the Kisii Land Registrar Steve Mokaya, such cases are rarely reported to the
authorities. “They only resurface once there is property damage, assault or injuries.”
Laws of Succession Act section 45 explicitly talks of interference with the property of deceased
persons. Section 45 (1) states: “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.”
Section 45 (2) (a) says that any person who contravenes the provisions of this section shall; (a)
be guilty of an offence and liable to a fine not exceeding ten thousand shillings or to a term of
imprisonment not exceeding one year or to both such fine and imprisonment; and (b) be
answerable to the rightful executor or administrator, to the extent of the assets with which he has
interfered after deducting any payments made in the due course of administration.
On November 15, 2019, Kisii Environment Land Court Judge Jane Onyango made a ruling on a
preliminary objection in Environment Land Case Number 2 of 2019 that had been filed by nine
defendants against Mary Moraa and Jeremiah Misiani who had sued as the legal representatives
of the estate of Maake Amenya (deceased) on a parcel of land Manga Settlement Scheme 207.
The ruling was in respect of the Defendants’ Preliminary Objection which was based because the
defendants acquired the suit property which is registered in the name of a deceased person before
a Grant of Letters of Administration was issued in respect of the estate of the deceased.
Plaintiff’s advocates told the court that the deceased died in 2017 whereas the defendants purport
to have purchased the suit property from a son of the deceased before a grant was issued in
respect of the deceased’s estate.
Advocate for the 11 defendants argued that the defendants are in occupation of the suit property
and their property rights ought to be protected as provided by Article 40 of the Constitution.
By Frank Akunga