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November 14, 2018

Protecting the property of a deceased person

Whenever someone dies, there are many issues that call for the immediate attention of close family members.

Often, relatives take prompt action to ensure that the property left behind by the deceased person is well taken care of. This helps preserve the assets from plunderers, thieves and opportunists.

Unfortunately, this is not always the case. There are those who take advantage of the situation to rob and steal everything they can lay their hands on as soon as possible before the world catches up with them. This is very insensitive and unfortunate. We see a lot of this whenever there is a fatal accident on our roads. Instead of offering help, some people will be seen taking photos to post on social media while others engage in wanton looting from the dead before police arrive. Others will be seen carting away furniture from the deceased’s house, emptying the bank account of the late and selling the deceased’s land at laser speed.

This kind of conduct is known as intermeddling. According to the Black’s Law Dictionary 6th edition, to intermeddle means to interfere wrongly with property, or the conduct of business affairs, officiously or without right or title.

In law, the intermeddler has no legal authority or power to transfer ownership of the property of a dead person. This is an illegal transaction that can be reversed and set aside. You cannot invoke a defence that you were ignorant of the death.

In order to protect the estate and or the property of the deceased, intermeddling is a crime under Kenyan law.

Section 45 (1) of the act provides that (1), except so far as expressly authorised by this act, or by any other written law, no person shall take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person. (2) Any person who contravenes the provisions of this section shall—

(a) be guilty of an offence and liable to a fine not exceeding Sh10,000 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 intermeddled after deducting any payments made in the due course of administration.

Section 46 then sets out the steps that they should take upon the death of someone. It states that:

(1) Whenever it becomes known to any police officer or administrative officer that any person has died, he shall, unless aware that a report has already been made, forthwith report the fact of the death to the sub-chief of the sub-location or to the chief or administrative officer of the area where the deceased had his last known place of residence.

(2) Any person to whom a report is made under subsection (1) shall—

(a) at the request of any person who appears to have a legitimate interest in the estate of the deceased; or

(b) if no application for representation in respect of the estate has been made within one month after the date of the death of the deceased, forthwith proceed to the last known place of residence of the deceased, and take all necessary steps for the protection of his free property found there, for ascertainment of his other free properties (if any), for ascertainment of all persons appearing to have any legitimate interest in succession to or administration of his estate, and for the guidance of prospective executors or administrators as to formalities and duties.

(3) If any person to whom a report is made under subsection (1) finds that there is any free property of the deceased, or that the person appearing to have the greatest legitimate interest in succession to or administration of his estate are resident in any other sub-location or area, he shall forthwith report those facts to the sub-chief, chief or administrative officer of that other sub-location or area, who shall thereupon take, in respect of the property or persons, the steps prescribed by subsection (2).

(4) An assistant chief, chief or administrative officer becoming aware that there is in his sub-location or area any free property of a deceased person, or that there are resident in his sub-location or area any persons appearing to have the greatest legitimate interest in succession to or administration of the estate of a deceased person, but that no grant of representation in respect of that estate has yet been made, shall, at the request of any person who appears to have any legitimate interest in that estate, and without waiting for a report under this section, forthwith take, in respect of the property or persons, all such steps prescribed by subsection (2).

(5) A person who is required to take the steps referred to in subsection (2)—

(a) shall forthwith report to the Public Trustee the death of the person concerned; and

(b) notify the Public Trustee of the steps taken by him pursuant to that subsection.

The unclaimed assets issue has a legal regime that takes care of the cases where property remains unclaimed for long.

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