Ticking time bomb for land buyers in Kisii as succession forgeries rise

In the Mwomogesa area in Kitutu Chache, an extension of Kisii town, several private developers are battling court cases. Some have already given up on the cases, leading to the loss of millions of monies.

A former Member of Parliament lost Sh7.6 million to a cartel that had sold him a commercial plot. The owner of the said parcel had died, leaving behind two sons and a widow.

One of the sons chose to sell the portion before the family could proceed for succession. The legislator is said to have given up on the matter despite promises from the Directorate of Criminal Investigations to help recover the monies. In some cases, people have been dupped to buy developed properties as part of an extension to the land sold to them, and fake titles processed.

According to the Kisii Land Registrar Charles Ayienda, families are experiencing issues with the transfer of land from the deceased’s estate.

“The law allows one to have more than one administrator. We have issues where an administrator decides to sell a portion of land without involving other parties. These are some of the cases which have overstayed in the courts.”

Ayienda says, in the past, getting succession done was a formality. “All through 2017, families were being duped and registered fake succession matters. This was a cash cow. Most administrators forgot about their siblings and went on the rampage to sell family land.”

He says there was massive fraud and corruption, which his predecessor tried to undo. “We have numerous family disputes and court cases which have led to assault, rape, and incitement.”

Records at his office indicate the officers handle between 10 to 15 cases of forged succession documents daily. “What we are handling are improper sub-divisions and illegal transactions. Some title deeds have never been collected. Families should ensure that they have faithful people as administrators. A whole family can become administrators.”

He explains that some family members and a buyer can go to court and do citations to factor in all the interests.

“We have all parties visit our offices before we allow our officers to cancel fake succession. We get extra facts through surveys. The implications of having fake succession through fictitious owners or fake administrators go deep to affect genuine land owners.”

He advises that before buying land, one has to seek history of documentation and allow the registrar to reconstruct history.

“Third parties are buying non-existent land. Before buying, do a complete search. It is a tall order for some buyers, but the law must be applied.”

In Borabu, most families lack title deeds, while private developers have bought land through fake succession. 

Peter Ondimu spent a good portion of his retirement benefits to buy a one-and-a-half acre piece of land in Mwongori in 2014 at Sh1.4 million. He intended to put up a retirement home in the area. “I was offered a forged title deed. The search on the first days showed it was legit. My frequent searches at the Nyamira Lands office shocked me. The file was missing. I realised I had been duped.” Peter had bought the piece of land from a family that had an illegal succession. The seller passed on in 2016, a few months after the buyer had flown out of the country.

Advocate Gideon Nyambati argues that the spirit behind sections 45 and 82 Section 45 of the Law of Succession Act, Cap 160 Laws of Kenya, is to preserve the property of a deceased person until the beneficiaries and their respective shares are identified, ascertained and distributed.

“If intermeddling a fake succession is allowed, the likelihood of the innocent beneficiaries being prejudiced by having their shares affected by reduction could be real. There may be no settlement or peaceful co-existence or end disputes between the family members.”

Another advocate. Philemon Onchwang says: “Before a grant has been issued and confirmed, no part of the deceased’s estate may be dealt with in a manner that amounts to inter-meddling. No one should take part in disposition or alienation and trespassing onto the property. Such acts are subject to reversal by the court summarily.”

In the Kisii Environment Land Court, and case number two of 2019, Judge Jane Onyango ruled: “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.”

“In fact, such individuals are guilty of interference with the estate of the late deceased.”