in or arising from--
(a) land, or permanent fixtures on, or improvements to, land;
(b) goods or personal property;
(c) intellectual property; or
(d) money, choses in action or negotiable instruments;
As such property never floats around without an owner. The owner can be a person or a group. It's no wonder we have documents that are used as proof of ownership of property like log books, title deeds and so on.
When alive, land is usually registered in the names of real or juristic persons.
The Constitution extends a protection and a guarantee of right to own land under Article 40. (1) Subject to provides that every person has the right, either individually or in association with others, to acquire and own property--
(a) of any description; and
(b) in any part of Kenya.
Property can be owned by spouses jointly or separately. The fact that property is registered in the name of one spouse does not mean that it is owned exclusively by one spouse. The Matrimonial Property Act provides that a spouse shall at all times have an overriding interest in matrimonial property. The spouse in whose name the property is registered is deemed to hold the property in trust for the other spouse.
The right over property comes to an end upon the demise of the person in whose name it is registered. A dead person cannot own land.
The law of Succession Act regulates the process that the ownership of property is expected to flow through from the deceased to the living. The change of the ownership from the deceased to the living is done through wills in case the deceased had prepared one.
Such a person is said to have died testate. The person who makes a will is known as the testator. The distribution or the general handling of the property they leave behind is regulated by the wishes that testator had expressed in their will. The Testator has to appoint a person known as the executor who will be tasked with the responsibility of implementing the desires of the testator.
Majority of us Kenyans, do not prepare wills. In the event that one dies leaving no will behind, then the Law of Succession Act provides that such a person has died intestate. In the event the deceased had property, then the person who is recognised by the law of succession as eligible must apply for letters of administration. The property left behind by the deceased is known as the estate.
In Kenya, dealing with the property of the deceased without letters of administration is illegal/a court order. Many people dispose of, distribute, and transfer the property of the departed loved ones without letters of administration out of ignorance. This is known as intermeddling.
Letters of administration are court orders that appoint an administrator who stands in for the deceased for purposes of collating the assets, liabilities, debts owed by /owed to the deceased. He has the task of paying off debts and distributing the property left behind by the deceased to the beneficiaries.
It must be noted that the administrator so appointed by the court is not the new owner of the property of the deceased. The administrator has to report back to the court that he has completed the task of distributing the estate of the deceased.
The letters of administration granted by the court can be challenged by an aggrieved party who can even apply to the court for the revocation of the grant. This happens for example when the there is a conflict of interest between the administrators role and the beneficiaries or where the administrator is mismanaging the estate or is incapable of rendering an account of the activities of the estate.
The death of administrator does not bring closure to the process. A new one can be appointed by the court to complete the tasks that are pending. An administrator who is incapable of performing his duties can be substituted with another one.
Always remember that it is illegal to deal with the property of a deceased person unless you have a court order. Ignorance of the law is not and will never become an excuse.
By John Chigiti
http://allafrica.com/stories/201501071253.html
