Buying ancestral land without ending in legal trap
Friday, October 30th, 2020
In a landmark ruling in April this year, the High Court ruled that parents have no legal obligation to consult their children in the sale or transfer of inherited property.
The ruling followed a petition by two siblings to stop their father from disposing of a piece of land he had inherited.
The court ruled that parents do not automatically hold inherited property in trust for their children, meaning, a parent is not obliged to consult their children in the transfer or sale of land including its subdivision.
Deciding on the matter, Lady Justice Grace Kemei said the claim of customary trust must be proven beyond reasonable doubt.
The two siblings had taken the matter to the Murang’a Lands court seeking a declaration to make the sale of land by their father null and void.
In addition, they had wanted a court to the registrar of lands requiring cancelation of the title issued to the buyer and a reversion of title to the original owner.
This case lays bare the controversies and challenges that surround purchase of ancestral land.
By defination, ancestral land is more like community land that is passed down from generation to generation through inheritance and is owned by a community, clan or family.
Buying such land in many cases has resulted in being duped or being involved in endless legal disputes.
Such cases commonly happen in rural set ups where people sell land when need arises whereas they do not possess a title deed for it.
“They don’t know what to do with the title and whether they need them being that they are on ancestral land.
Usually, they just divide their plot of land for their children,“ explains Architect Dorothy Abonyo.
Having gone through this process while purchasing land in Siaya, the architect understands how tedious the process can be to acquire inherited land.
Once you identify a plot, one has to ensure that the whole family, to which the land belongs to, is present and in agreement with the fact that a portion or the whole plot is being sold.
“Every single person in that family has to agree because the title is in someone else’s name and if one person refuses that the land should not be sold, then that will bring you issues.
It’s usually a tough process getting all to agree, but then there are times when you’ll just be dealing with the second generation, which is easy, “ explains Dorothy.
She also recommends that one be acquited to someone in the village who knows the family tree very well to advice on the status of the land.
“There might be an additional child whose interests might have been ignored, leading to a dispute,” she cautions.
After the agreement, she advises one to go to the chief to verify on the family lineage and also sign the contracts there.
After that, the name of the title has to be transferred from the name of the grandfather to the person who is selling the land, which can take up to a minimum of nine months.
Thereafter, the transfer will be done to the new buyer. “If you get somebody who is clever enough and has a title deed, you still have to ensure that the family agrees the land to be sold.
Once the family has agreed, you don’t have to go to the chief, you simply do the transfer and within two weeks its done,” she says.
According to family lawyer Martha Mugo many people get duped because of buying ancestoral land without ensuring that the succession process has been done, then a lot of disputes arise.
“When a parent owns land and then they pass on, there are instances where some children start to dispose off the land without consulting other siblings or, they sell land, which they have no title to,” she explains.
Martha advises that before buying ancestral land one should do a search and ensure that you apply for the greencard as well at the lands office to enable to ascertain the history of ownership of the land and the real owner of the land.
The succession process happens in two ways: for a person who died having written a will and a person who died without a will.
“For someone who died without a will, the family must come together and agree who shall become the administrator of the estate.
If they don’t agree, then they file a succession case in court to resolve the same.
They can also use mediators to assist them in agreeing on who to become administrators of the estate,” she advises.
Upon identification of the administrators, then one should apply for a grant of letters of administration in court so as to gain authority from the court for them to administer the estate of the deceased.
Upon confirmation of grant of the letter of administration, then one attaches the certificate and application forms for transfer (for the name to change from the deceased to the administrator) and submits them to the lands office.
This means that the title changes from the name of the deceased to the administrator who then distributes the property to the rest.
“The buyer must ensure that this whole succession process is done to avoid disputes. The search or greencard will have all that information,” she says
After confirmation that the seller has done the succession process and is now the real holder of the title, then now they are in a position to buy the land as the seller will now be buying what they legally own.
Negotiations take place and they sell, prepare and execute a sale agreement.