Where there is an agreement for the sale of land and the seller dies before registration of the transfer, the purchaser may be at a loss on the way forward. Under section 43 (3) of the Land Act, 2012, a transfer is completed by the registration of the transferee as proprietor of land. In other words, before registration, the transfer is not complete and the property still belongs to the registered owner.
Upon death, the property of the deceased vests in
his personal representatives. Under section 51 of the Law of Succession Act,
the administrator of the estate of a deceased holds the land subject to any
liabilities, rights and interests that are unregistered but nevertheless
enforceable and subject to which the deceased held the land.
Once one gets into an agreement for the sale of land
and the purchaser pays the purchase price, he becomes a creditor of the seller.
The seller has an obligation to transfer his interest over the land to the
buyer. Therefore, if the seller unfortunately dies before the transfer is
registered, he dies indebted to the purchaser.
The purchaser’s remedy in that case is to claim
against the estate of the deceased seller as a creditor to his estate. the
purchaser’s claim should be directed to the personal representatives of the
deceased as at that point the property vests in them and they have the legal
power to deal with the property as the grant.
If the personal representatives had obtained a grant
and had it confirmed in such a manner that the land subject of the agreement of
sale would devolve to a beneficiary of the deceased and thus cut out the
purchaser, the purchaser may make an application seeking to revoke that grant. In
this case, the purchaser will approach the court under section 76 of the Law of
Succession Act as an interested party.
Section 76 states that A grant of
representation, whether or not confirmed, may at any time be revoked or
annulled if the court decides, either on application by any interested party or
of its own motion that the grant was obtained fraudulently by the making of a
false statement or by the concealment from the court of something material to
the case. The court in the case of Musa
Nyaribari Gekone & 2 others v Peter Miyienda & Another (2015) eKLR
defined the term ‘interested party’ as used under section 76 to include a
purchaser.
This therefore means that the purchaser
may apply to court to have the grant revoked if he can prove that the
administrators obtained the grant fraudulently. In this case, he would have to
show the court that the administrators were fully aware of his interest over
the property but they nevertheless went ahead to apply for confirmation of
grant which would take away the purchaser’s interest over the property. The purchaser
is a creditor to the property and has the right to seek refund of the purchase
price from the estate of the deceased seller.
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