How can we stop step-brother from selling our land?

Land that is already sold can be reversed through a court order, especially if proved that the sale was either illegal or fraudulent. [PHOTO: FILE/STANDARD]

My father had seven wives and many children. He also had large parcels of land. He passed on without dividing the land among us. For almost six years, there have been efforts by the extended family elders to divide the land, but some members of our family are opposed to the idea. They gave up and left the matter to us as a family. In 2014, one of the sons colluded with his mother and sold off a section of the land without the consent of other family members. He is now planning to sell another piece of land without our consent. Are there any legal steps we can take to bar him from selling another piece of land and also recover the one already sold? And are there legal steps we can follow to divide the land among us?

Gordon Taylor, Homa Bay.

The family can instruct a lawyer to place a caveat/caution on the property to ensure that it cannot be sold until the dispute is resolved and the caution lifted by a court order. The land that already sold can be reversed through a court order, especially if proved that the sale was either illegal or fraudulent.

There are steps that can be followed to ensure that every beneficiary from your polygamous family gets a share of the land in line with the Law of Succession Act. As your father died intestate – without leaving a will stipulating how his estate should be distributed upon death – the court shall assist in distribution.

Anyone who intends to take over management of the estate of a deceased investor must apply for letters of administration in court. In order of preference, the courts mostly gives priority to the spouse(s), adult children of the deceased, other legal beneficiaries, the public trustee or creditors of the deceased.

Persons aged below 18 years, company or organisation other than a public trustee or more than four persons cannot apply for the letters. In cases where the investor left a will, it must be attached to the application seeking the letters of administration.

The letters are basically authority to manage the investments. The required forms for application of the letters can be obtained at any court or the local administration office. The forms are filled, signed and returned to court where they are stamped and filed at a prescribed fee.

An original death certificate and title documents for the immovable property must also be attached. Two sureties are required before filing in court. The forms must be filled with sincerity — all beneficiaries should be named and where there is a will, the executor makes the application.

In other cases, the application is made in order of legal seniority — the widow or widower, surviving children, father, mother, siblings, cousins, public trustee or creditors. If there is more than one person who can apply for the letters of administration, he or she must do it with the consent of the others.

In instances where there are a number of surviving spouses and adult children, the consent of the children and co-spouses is important. If the value of the property does not exceed Sh500,000, the forms are submitted at the Magistrate’s Court; and at the High Court if it exceeds this.

The application must be advertised in the Kenya Gazette and those objecting to it must do so within 30 days after the notice appears. Some of the cases drag in court if the widow(s) says that some of them were not customarily married to the departed.

It delays before the court confirms legitimate beneficiaries, including widows and children that survived the departed investor. Two different cases involving the family of the late Nyandarua North MP Josiah Mwangi Kariuki and Cabinet Minister Mbiyu Koinange have jointly spent 61 years in court.

—The writer is an Advocate of the High Court