Ask A Lawyer series: offence of obtaining money by false pretenses

Obtaining money by false pretences is a misdemeanor under Section 313 of the Kenyan Penal Code. It's a crime where someone intentionally deceives another person by making false statements or presenting themselves as someone or something they are not, with the intent to obtain money or property. 

The prosecution must prove the accused obtained something capable of being stolen, did so through a false pretence, and had an intention to defraud.

Key elements of the offense, according to the Kenyan Penal Code and case law, include:
A false representation:
This can be a statement, writing, or conduct that is untrue and known to be false by the person making it.
Intent to defraud:
The person must intend to deceive and cause the victim to part with their property.
Anything capable of being stolen:
The object of the deception must be something that can be stolen, like money, goods, or services.
Inducement:
The false representation must induce the victim to give up their property.
Example: If someone falsely pretends to be a contractor to secure a contract and payment, and the contractor then pays them without realizing the deception, the person could be charged with obtaining money by false pretences.

The Procedure for Succession in Kenya

In Kenya, the succession process, governed by the Law of Succession Act, involves distributing a deceased person's property to their beneficiaries, either through a will (testate) or according to legal rules if no will exists (intestate).

Here's a breakdown of the process:

1. Types of Succession:

• Testate Succession:

When the deceased leaves a valid will outlining how their property should be distributed. 

• Intestate Succession:

When the deceased dies without a will, the estate is distributed according to the Law of Succession Act, prioritizing the spouse, children, and other relatives. 

2. Key Stages in the Succession Process:

• Reporting the Death:

The death of the deceased must be reported and a death certificate obtained. 

• Identifying Heirs and Beneficiaries:

Determine who is entitled to inherit the deceased's property. 

• Applying for Probate or Letters of Administration:

• Probate: If there's a will, the executor named in the will applies to the court for a grant of probate. 

• Letters of Administration: If there's no will, an application for letters of administration is made to the court. 

• Gazetting the Application:

A notice of the application is published in the Kenya Gazette to allow for any objections. 

• Court Hearing and Grant:

The court hears the application and, if no objections are raised, issues a grant of probate or letters of administration. 

• Administering the Estate:

The executor or administrator manages the estate, settles debts, and distributes assets to the beneficiaries. 

• Land Transfer:

For land, the process involves transferring ownership from the deceased to their heirs, requiring legal steps and ensuring fair distribution. 

3. Intestate Succession Rules (if no will):

• The estate is distributed according to the Law of Succession Act, prioritizing the spouse, children, and other relatives. 
• Specific rules apply to the distribution of property among different family members, including children, parents, siblings, and other relatives. 
• The court will take into consideration multiple factors and rules to ensure a fair and legal distribution of property to the beneficiaries. 

4. Important Considerations:

• Consulting Legal Professionals:

It's advisable to seek legal advice from a qualified advocate to navigate the complexities of the succession process. 

• Drafting a Clear Will:

Creating a clear and comprehensive will can help ensure that the deceased's wishes are carried out and prevent potential disputes.

• Appointing Competent Executors and Trustees:

Choose individuals who are capable of managing the estate and distributing assets according to the will or the Law of Succession Act.

• Land Registration Act 2002:

The Land Registration Act governs the registration of land and provides the legal framework for transferring land ownership. 

• Kenya Gazette:

The Kenya Gazette is used to publish notices related to succession applications, allowing for public scrutiny and objections. 

Legal Framework Governing Joint Ownership in Kenya

Introduction

The Land Registration Act, 2012 governs land ownership in Kenya. Under Section 91(2) of the Act, land may be owned jointly or in common:

• Joint Tenancy – Where co-owners have equal, undivided shares, and the right of survivorship applies.
• Tenancy in Common – Where co-owners have distinct, divisible shares with no right of survivorship.

To have a holistic  understanding of joint tenancy and tenancy in common and their distinct features, please read our previous article titled, Co-owning Property in Kenya: Joint Tenancy vs. Tenancy in Common

 Disputes may arise in either form of ownership when the owners disagree on managing or disposing of the property.

The Legal provisions

The Land Registration Act, 2012, and its subsidiary legislation, Land Registration (General) Regulations, are the primary legislations governing land ownership and disputes in Kenya. Key provisions relevant to joint ownership disputes include:

• Section 91: Provides for the two co-tenancies, the joint and the tenancy in common, and gives meaning to the incidents they can occur and co-owners’ rights. It also provides for the general presumption where an instrument of transfer of interest between two or more people does not specify the nature of their rights; there shall be a presumption that they hold the interest as tenants in common.
• Section 92: Guarantees the right of each co-tenant to receive a copy of the certificate of that land with an endorsement signed by the Registrar. A designated co-tenant will receive the original title. Allows the court to appoint a manager to oversee the property if co-owners cannot agree on its management.
• Section 93: Provide that where a spouse obtains an interest in the land during the subsistence of the marriage, such property shall be deemed as matrimonial property and will be dealt with under the Matrimonial Property Act ( Cap.152)
• Section 94 entitles any of the tenants in common to make an application for partition to the Registrar with the consent of all the tenants; however, any of the tenants or someone who has a decree for the sale of an undivided share in the land can still make the application without the consent of all the tenants.
• Sections 95 and 96 entitle the Land Registrar to cause the parties to mediate/negotiate and either transfer the share or sell the property and divide the proceeds if the partition would result in less than the minimum acreage limit.
• Section 97 provides that any partition of an undivided share is subject to a charge; there can never be a partition without the lender’s written consent, thus discharging the entire property.

 

𝐇𝐨𝐰 𝐭𝐨 𝐆𝐞𝐭 𝐚 𝐓𝐢𝐭𝐥𝐞 𝐃𝐞𝐞𝐝 𝐟rom 𝐈𝐧𝐡𝐞𝐫𝐢𝐭𝐞𝐝 𝐋𝐚𝐧𝐝

The process involves:
1. Report the Death

Start by getting the death certificate of the landowner. This is needed to begin any succession process.

2. Apply for Succession

Go to the High Court (for formal succession) or Magistrate’s Court (for estates below a set value) and file a petition for letters of administration (if there was no will) or probate (if there was a will).

This legal process determines who inherits what.

3. Publish in Newspaper
Once you file, a public notice is published in the newspaper for 30 days

This allows anyone with objections to raise them.

4. Receive Grant of Letters of Administration / Probate

After 30 days with no objection, the court issues a grant of letters of administration or probate to the rightful heirs.

5. Apply for Confirmation of Grant

After six months, apply to the court for confirmation of the grant, which legally distributes the land to the named heirs.

 The court will specify the portions of land for each beneficiary.

6. Land Transfer at Registry

With the confirmed grant, go to the land registry.

The land will be transferred to the names of the heirs as per the court’s instructions.

If it’s one person inheriting, it goes directly to them.

7. Survey and Beaconing (if necessary)

If the land is being subdivided among multiple heirs, hire a licensed surveyor to carry out subdivision and beaconing.

Then apply for a mutation to split the land officially.

8. Title Deed Issued

Once all documents are in place and the registry approves, a title deed will be issued in your name(s) – officially making you the legal owner(s).
 

Courtesy of #njogu