Land inheritance in Kenya: understanding title deed succession

During the pre-colonial times, land was communally owned and each ethnic group had its customary laws regarding land use and inheritance. However, this changed when the British introduced formal land registration, which displaced indigenous communities and altered traditional land rights. After our independence, Kenya implemented land reforms that were aimed at protecting landowners. Nevertheless, the issues surrounding land ownership remain complex.

What Legal Framework Governs Land Inheritance in Kenya?

1. The Constitution of Kenya: The Kenyan Constitution, which was promulgated in 2010, provides a clear framework that guides the land ownership and inheritance process. Property rights and principles for equitable transfer of land are all well defined thus protecting all land transactions.

2. The Law of Succession Act: The Law of Succession Act is a legal instrument governing inheritance in Kenya and sets out the procedures for the distribution of a deceased person’s estate when the deceased had a will and also when they did not have a will already written out.

3. Customary Laws: Customary laws are different among Kenyan communities and often dictate land inheritance patterns in these communities. For a long time, customary laws have favoured male inheritance while disinheriting women and daughters. However, today, there is a shift in the same and women and daughters are now being recognised and counted in inheritance.

4. Land Act and Land Registration Act: The Land Act and Land Registration Act further streamline the process of land registration and succession through well-outlined laws. These laws guarantee clarity, transparency and fairness during land succession.

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What are the types of Succession in Kenya?

1. Testate Succession – This occurs when a person passes away, leaving behind a valid will. In such cases, the estate is distributed according to the wishes outlined in the will. For the will to be legally recognized, it must be written, signed by the testator and witnessed by at least two competent individuals. The person creating the will (the testator) may also appoint an executor to oversee and manage the distribution of the estate.

2. Intestate Succession – This occurs when a person dies without leaving a will. Since there is no will, the estate is distributed according to the Law of Succession Act, which follows a hierarchy of beneficiaries. The hierarchy of beneficiaries starts with the spouse and children, followed by parents, siblings and other relatives. If no relatives exist, the estate may go to the State.

The Process of Land Inheritance in Kenya

1. Obtaining a Title Deed for Land Succession in Kenya

The first step is the identification of the estate, including land which can only be done by obtaining the title deed. To obtain a title deed, there are several documents needed, which include: The deceased death certificate, proof of relationship to the deceased (birth or marriage certificate), copy of the will where applicable and the letter of administration.

2. Filing a Succession Case

• Application for Letters of Administration: The individuals inheriting the property must apply for the Letters of Administration at the High Court or at the Magistrates’ Court depending on the value of the estate. Without the letters of administration, they do not have the authority to manage or distribute the deceased’s estate.

• After the application of letters of administration, the application is then published in the Kenya Gazette, which allows any objections from other potential heirs and creditors.

3. Issuance of Letters of Administration

• Six months after the application of the Letters of Administration, the court may confirm the grant if there are no objections raised. The administrator then distributes the estate according to the laws or the deceased will.

• The administrator then distributes the land and other assets to the rightful heirs based on the deceased’s will or, if there is no will, according to the rules of intestacy.

4. Transfer of Land

• The transfer of land does not happen until consent is obtained from the Land Control Board (LCB) if the land is agricultural or if the title is under a communal tenure.

• Thereafter, the names of the heirs are registered in the land registry as new owners. This step requires the submission of the confirmed grant, death certificate, land title deed and other relevant documents.

• After registration, the new landowners must pay any outstanding rates, stamp duty and registration fees before the transfer is finalized.

6. Issuance of Title Deed

Once all conditions are met and payments are made, the new title deed is issued in the name(s) of the beneficiary(ies).

Points to Note During the Succession Process

• There are cases where customary law may apply, particularly in rural areas where land inheritance is hugely influenced by local customs.

• Legal disputes may arise if the inheritance is contested and hence could lead to legal disputes that could delay the process.

• In cases where the heirs are minors, a trustee is appointed to manage the land until they reach adulthood.

Challenges in Land Inheritance in Kenya

• Land inheritance often leads to disputes and conflicts among family members. These can arise from disagreements over the distribution of the estate or claims from distant relatives.
• Fraud and corruption are significant challenges in the land inheritance process. Unscrupulous individuals may forge documents or bribe officials to gain control of the deceased’s estate.

• The land inheritance process can be cumbersome and bureaucratic, with numerous steps and requirements that can delay the transfer of ownership.

Conclusion

It is paramount to understand the complexities of land inheritance in Kenya, as this helps protect your rights to land ownership and safeguard your investments. Therefore, it is important to seek legal advice, mediate disputes that may arise in the process and stay informed to help ensure a smooth and fair land inheritance process.

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