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December 10, 2018

It's a crime to meddle with the property of a dead person

It is common in Kenya for relatives of a deceased person to handle his or her property without seeking legal advice as to how it should be distributed or disposed of.

A substantial number, if not the majority, of people reason that after all, the property is theirs to inherit anyway and they are the heirs to the estate due to their bloodline link to the deceased.

As logical as this argument seems, the law has put in place mechanisms for the distribution and disposal of a deceased’s estate and has provided the consequences of failure to abide by these regulations.

Intermeddling occurs where a person who is not a personal representative of the deceased handles the deceased’s property in any manner, performing acts such as distributing or disposing of the property.

Section 45 of the Law of Succession Act provides that “except so far as expressly authorised 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.”

Where the deceased had made a will before he died, the executor of the will, who is the person appointed under the will to fulfill the wishes of the deceased, applies for a grant of probate.

Where the deceased died without leaving a will, the surviving spouse or spouses, other beneficiaries, the public trustee or creditors of the deceased can apply for a grant of letters of administration.

A grant of probate or letters of administration enables the appointed individuals to distribute and dispose the assets of the deceased legally.

According to Section 45(2) of the Law of Succession Act, any person who intermeddles with the estate of the deceased shall be guilty of an offence and shall be liable to a fine not exceeding Sh10,000 or to a term of imprisonment not exceeding one year or both.

In addition, the intermeddler shall be answerable to the rightful executor or administrator of the estate to the extent of the assets intermeddled with.

In Shiphrah W. Kabia versus Mwiki Co Ltd and three others [2013] eKLR, the plaintiff applied for a temporary injunction restraining the defendants from cancelling a plot certificate issued to her which was previously in the joint names of the plaintiff and the deceased.

Upon the demise of the deceased, the plaintiff notified the first defendant and was advised by officials of the first defendant to apply for the amendment of the land records, which she did and the first defendant issued her with a certificate in her name.

However, on July 27, 2012 she received a letter dated July 10, 2012 written by the first defendant threatening to cancel her plot certificate. The applicant therefore sought for courts protection to prevent the defendants from disposing of the plot in question.

The court held that the registration of the suit property in the name of the applicant otherwise than through a succession cause and without involving the other beneficiaries of the deceased amounted to intermeddling with the deceased’s property without following Section 45 of The Law of Succession Act, which amounted to an offence.

This legal provision is in line with protecting the assets of the deceased. A dispute may arise between relatives of deceased and before the matter is resolved in court, it would be important to ensure that the estate is protected and only dealt with by individuals who are authorised to transact on behalf of the estate.


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