Imagine saving for years to buy a plot in Kitengela, Ruiru or Juja. You find a seller willing to accept instalments, agree on a price and sign a sale agreement. You pay Sh500,000 towards a Sh2 million purchase, expecting to complete the transaction within a few months. And then the property owner dies.
When you approach the family, some relatives deny knowing about the deal, others insist the land belongs to the family collectively, while another threatens to sell it to someone else.
Your money is tied up, the title remains in the dead seller’s name and you are caught between a property transaction and a succession dispute. The solution lies on the validity of the agreement, compliance with legal requirements, the seller’s ownership rights, and the status of the deceased’s estate. Death does not automatically cancel a valid land sale agreement. Equally, a signed agreement or deposit does not automatically make the buyer the eventual owner.
Samuel Mwangi, an Advocate of the High Court of Kenya, says a buyer’s contractual rights may survive the seller’s death, even when transfer has not been completed.
“A seller’s death does not automatically invalidate an otherwise valid land sale agreement,” he says.
Section 3(3) of the Law of Contract Act generally requires a contract for the disposition of an interest in land to be in writing, signed by all parties and attested as required by law. Other requirements, including consent under the Land Control Act where applicable, may also affect enforceability. The distinction is that a contract creates obligations, while registration establishes legal ownership. Mwangi says the buyer must show the agreement was valid, the seller had authority to sell and the buyer met their obligations. A deposit and written agreement are evidence, but cannot cure every defect.
A seller’s death does not give his relatives an automatic right to disregard a lawful transaction, however, buyers must distinguish between beneficiaries and those legally appointed to administer the estate. Mwangi explains that the claim will generally be pursued against the estate through its appointed personal representatives, rather than treating every relative as personally responsible.
Sections 79 and 82 of the Law of Succession Act address the powers of personal representatives. Section 45 prohibits unauthorised dealings with a deceased person’s free property. A buyer may ask a court for specific performance, compelling the estate to complete a valid transaction. If transfer cannot lawfully or practically be completed, a refund or other remedy may be available.
The family’s refusal does not decide the outcome: the court considers the contract, statutory consents, performance and the property’s legal status.
In Anne Murambi v John Munyao Nyamu and another (2018), the Environment and Land Court ordered specific performance of a land sale agreement and directed transfer, with the balance released to the deceased’s estate. The case shows that death need not defeat an enforceable transaction, although specific performance is not automatic.
Laureen Mayoye, an Advocate of the High Court of Kenya, advises buyers to preserve the agreement and payment records and formally notify parties of their claim against the estate.
“The family members cannot block the transfer out of malice or greed if a valid contract exists,” Mayoye says, although enforcement remains subject to the law and the estate’s legal position.
If the sale can lawfully be completed, the buyer may seek transfer after meeting contractual conditions. If completion is impossible or the buyer is entitled to rescind, a refund may be available. Consider a seller who accepts Sh800,000 to settle medical bills and dies before transfer.
Agreement should identify the parties, parcel, price and payment schedule, set a completion date and explain default.
The family may say the money has been spent or deny knowledge of the sale. That does not by itself extinguish a valid obligation, but the buyer must prove payment and establish a claim against the estate. Bank statements, mobile-money confirmations, receipts, messages and credible witnesses can be crucial.
In Balcon Housing Company Ltd v Ann Kariri Kiarie, a purchaser had paid Sh3.8 million of an agreed Sh5.5 million for 22 acres and taken possession before the seller died. When the transaction could not be completed, the court ordered a refund. Payment does not guarantee ownership of the land; depending on the facts, repayment may be the remedy.
What if the family sells the land to someone else?
The risk grows if relatives try to sell the property to another buyer or distribute it while the original purchaser pursues a claim.
Mayoye says Section 45 of the Law of Succession Act prohibits unauthorised persons from disposing of or otherwise intermeddling with a deceased person’s free property. Unlawful dealings may attract legal consequences. If the land is at risk of being sold, the buyer should seek legal advice promptly. Section 71 of the Land Registration Act allows a person claiming a qualifying right to apply for a caution restricting specified dealings.
A court may also grant an injunction or inhibition while the dispute is heard. These steps do not guarantee ownership, but may preserve the property. A caution will not automatically reverse a transfer already registered. If the land has already been transferred, the court may examine the later transaction, competing rights and whether the title can legally be challenged. An earlier agreement does not automatically prevail over a later registered interest.
A common mistake is assuming the dead seller’s spouse, child or sibling can simply sign transfer documents. Mayoye says buyers must establish who has been legally appointed to administer the estate. Section 82(b)(ii) of the Law of Succession Act restricts the sale of immovable property forming part of an estate before confirmation of the grant. Relatives cannot sell or transfer land merely because they expect to inherit it. Where the deceased signed a binding agreement while alive, the buyer may pursue enforcement against the estate, subject to the contract and applicable law. This may require succession proceedings, appointed representatives and court orders.
The buyer should establish whether a grant has been issued, who the administrators are and what steps are needed to complete the transfer, particularly where inheritance is still being processed.
In the Estate of Joseph Kipkosgei Terer (2025), the court cautioned against selling inherited land before transmission and registration in beneficiaries’ names. A certificate confirming distribution is not itself a title deed proving registered ownership or authority to sell. Buyers should confirm who owns the land and whether the seller has authority to dispose of it. A family meeting, inheritance document or relative’s promise cannot replace title and authority checks.
Mwangi advises buyers to obtain an independent official search from the relevant land registry. It identifies the registered proprietor and interests such as charges, cautions and restrictions. Compare it with the title and investigate discrepancies.
Two businessmen shaking hands over a closed deal. When a property owner dies before you conclude the deal, things can get complicated.
Photo credit: Shutterstock
Visit the property, check boundaries and access, and establish whether tenants, relatives or other occupants live there.
A qualified surveyor can verify acreage, boundaries and survey records where necessary. Establish whether the land is freehold or leasehold and whether consent is needed from a land control board, lessor or other authority. For agricultural land in a land control area, a missing Land Control Board consent within the statutory period can render a transaction void.
In Muturi v Mbugua, a 2025 Environment and Land Court appeal, a buyer had paid Sh527,000 towards a Sh750,000 purchase.
The court upheld the finding that specific performance was unavailable because required Land Control Board consent had not been obtained. Payment alone did not entitle the buyer to the land. The agreement should identify the parties and parcel, state the price and payment schedule, set a completion date and explain default. Keep signed copies and proof of each payment. Where appropriate, use an advocate’s client account with clear conditions for releasing funds.
“The golden rule is not to rely solely on the title deed, the seller’s promises or an agreement prepared by the seller’s advocate,” Mayoye says. “Conduct independent due diligence through your own advocate.”
For instalment buyers, the period between signing and transfer carries risk. A seller may die, become incapacitated or face a dispute that delays completion.
Mayoye advises asking an advocate to address these possibilities. The agreement should explain how obligations are handled if either party dies before completion, subject to succession law.
It should set out refunds if completion fails, including agreed interest, deadlines and dispute-resolution steps. Such clauses cannot override the law or authorise relatives to deal with estate property, but they can reduce uncertainty.
Do not pay the balance to relatives who have not established authority to receive it for the estate. If the seller dies, notify parties in writing, preserve records and obtain legal advice on completion, a refund or protective court orders.
Court decisions show that incomplete transfers, missing consents and succession delays can leave purchasers fighting to recover substantial sums. However, no reliable national figure is established here for cases specifically involving a seller dying before transfer. For investors, a plot’s value depends on whether the buyer can legally acquire it.
Those buying multiple plots, land for subdivision or property for resale should check the title, seller’s authority and approvals needed for completion.
An uncompleted transaction can tie up capital, delay development and generate legal costs. Possession or construction before registration does not automatically confer ownership and may increase exposure if the land is disputed. A seller’s death does not automatically destroy a valid agreement, but it can turn a purchase into a lengthy legal process. The buyer may seek completion through the estate’s representatives or a refund where the law permits; neither outcome is guaranteed.
The strongest protection is to verify the property and seller’s authority before paying, document each step and ensure the agreement addresses delays, default and death before completion. The distinction between a contractual right to buy land and registered ownership can determine whether the buyer receives the property, pursues a claim against the estate or faces a costly dispute that due diligence might have prevented.
