Editor’s note: In this opinion piece, Kimutai Kirui examines a case in Eldoret that raises a striking succession law dilemma: can litigation, execution, or auction processes validly proceed on instructions attributed to a deceased person? While some proceedings may appear to survive procedural challenge in practice, Kirui argues that Kenyan law remains settled that death extinguishes legal capacity.
Only duly appointed personal representatives can lawfully act for an estate.
Yes, court records have shown… an absurd and recurring phenomenon in some land disputes: mismatch between pleadings, evidence, and relief granted.
A claimant may allege unlawful occupation of Parcel A, while survey evidence shows the respondent occupies Parcel B, a distinct parcel. In some cases, the court acknowledges this distinction.
Where that finding is made, it is ordinarily dispositive: a claim based on Parcel A cannot succeed where the evidence establishes occupation of Parcel B.
This is further reinforced where Parcel B is owned by a third party who has filed affidavits and statements denying any link between the claimant and the parcel.
In such circumstances, the claim rests on a parcel the claimant does not own, despite clear evidential contradiction on ownership and locus.
However, difficulties arise where adverse orders are still issued despite this distinction, resulting in liability imposed in respect of land neither occupied nor claimed by the respondent. Worse, the claimant is not alive. She’s dead.
It remains a fundamental principle that relief must be anchored in the pleadings and supported by evidence; any departure from this undermines the integrity of the decision.
In Eldoret, dead persons are giving instructions to lawyers or auctioneers; cases are being won, and evictions carried out.
Auction of a deceased person’s property in Kenya
Lawyers in Eldoret will do the impossible. In an unusual line of proceedings, a deceased person was treated as having given instructions to an advocate, a case was prosecuted on that basis, and judgment was obtained.
Subsequently, an auctioneer acted on a letter of instructions arising from the same matter.
When later challenged, the process was defended successfully and upheld in court.
However, factually dramatic, such outcomes do not displace binding statutory and judicial authority on capacity, succession, and locus standi.
Legal Position: Auction Of A Deceased Person’s Property
The legal position is anchored in both statute and precedent:
A deceased person lacks legal capacity and cannot issue binding instructions to an auctioneer or advocate.
Upon death, all authority vests in personal representatives upon issuance of a Grant of Representation under the Law of Succession Act (Cap. 160).
1. Absence of legal mandate
Under the Auctioneers Act, 1996 (Cap. 526) and the Auctioneers Rules, an auctioneer may only act on instructions issued by a lawful decree-holder, advocate, or person with legal authority over the subject property.
In respect of a deceased estate, that authority vests exclusively in:
a duly appointed executor (probate), or
an administrator (letters of administration),
or pursuant to a valid court order.
Any instructions issued in the name of a deceased person are therefore a nullity ab initio.
This position aligns with the principle in Trouistik Union International & Another v Jane Mbeyu & Another [1993] eKLR, where the Court of Appeal held that a deceased person cannot institute or sustain proceedings without a legal representative duly appointed under the Law of Succession Act.
2. Statutory protection against intermeddling
Section 45 of the Law of Succession Act (Cap. 160) expressly prohibits intermeddling with the estate of a deceased person before grant.
Any dealing with estate property without authority is unlawful and may attract both civil and criminal consequences.
The courts have consistently reinforced this position.
In Re Estate of M’Ngarithi M’Miriti (2017) eKLR, the High Court reaffirmed that any disposition of estate property outside the succession process is irregular, void, and liable to be set aside.
Accordingly, any sale, attachment, or auction conducted outside the succession framework is generally void ab initio.
Instructions to Advocates in Respect of a Deceased Estate
Legal Position
Kenyan law is unequivocal: a deceased person cannot instruct an advocate. Death extinguishes legal personality and terminates the advocate–client relationship.
This principle is consistent with the doctrine of privity and capacity under the Advocates Act (Cap. 16) and reinforced by succession jurisprudence. An advocate’s retainer is strictly derivative and can only arise from a living person or duly authorised legal representative.
In Trouistik Union International v Mbeyu (supra), the Court of Appeal emphasised that only a properly appointed personal representative has standing to act for an estate. Any purported instructions from a deceased person are therefore legally incapable of grounding representation.
Lawful Channel of Authority
Authority over a deceased estate is created solely through the Law of Succession Act (Cap. 160).
1. Grant of Representation
A party must obtain:
Grant of Probate (where a valid will exists), or
Grant of Letters of Administration (intestacy).
Without this grant, no legal authority exists to deal with the estate.
2. Vesting of Legal Standing
Upon issuance of the grant, executors or administrators acquire exclusive statutory authority to represent the estate.
This principle is reinforced in Otieno v Ougo [1986–1989] EA 468, where the Court held that “an administrator is not entitled to bring proceedings before obtaining a grant of letters of administration.”
3. Instruction of Counsel
Only duly appointed personal representatives may issue instructions to an advocate. The resulting retainer is valid only if grounded in a confirmed legal mandate.
Counsel may then lawfully act in relation to:
preservation and identification of estate assets;
settlement of liabilities and debts; and
distribution in accordance with succession law or the will.
Conclusion
The legal position is settled and judicially entrenched: until a Grant of Representation is issued, no person has locus standi to act, sue, instruct counsel, or authorise execution on behalf of a deceased estate.
Any purported instructions issued in the name of a deceased person are void, and any transactions founded on such instructions are liable to be set aside under Kenyan succession law and binding Court of Appeal authority.
The author is Kimutai Kirui, a Kenyan political analyst and human rights activist known for his work in Uasin Gishu County, where he has championed justice in cases ranging from police brutality to land disputes affecting widows.
Views expressed in this article are solely those of the author and do not represent the editorial position of news9.africa.
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