FOREWORD
The land is not only the most important factor of production but also a very emotive issue in Kenya. As a matter of fact, 80% of our population relies on agriculture, yet only 20% of the landmass comprises arable land. Those in the political class and in business regard land as a source of personal wealth and power. For those in the rural areas, the land is not only their sole livelihood but also the subject of great emotional attachment. The land was the major factor that drove the fight for independence from the British colonial power. But even after independence, discontentment over land ownership has remained the most notable source of frequent conflicts and tribal clashes between Kenyan communities.
The Constitution recognizes that a lasting solution to the land problem lies in an effective legal and institutional framework. It thus requires that all laws relating to land are revised, consolidated and rationalized. The Kenyan parliament enacted the Land Act, 2012 which aims to revise, consolidate and rationalize land laws in order to provide for the sustainable administration and management of land and land based resources. It also enacted the Land Registration Act, 2012 whose objective is to revise, consolidate and rationalize the registration of titles to land. In the same year, the National Land Commission Act, 2012 was enacted purposely to establish and provide for the functioning of the National Land Commission (NLC), the public body charged with responsibility of managing public land on behalf of the national and county governments.
This booklet seeks to answer some of the most frequently asked questions about land matters in the simplest way. It is our hope that this booklet will be vital as a tool for engagement in realizing meaningful land reforms in Kenya.
ACKNOWLEDGEMENT
The National Land Commission gratefully acknowledges and thanks our funding partners, especially the European Union and the Food and Agriculture Organization of the United Nations (FAO) for their generous financial support towards the publication of this pocket version of Know your Land Rights. The views herein are not necessarily their own.
We acknowledge the contributions from all NLC Directors and staff, Commissioner Clement Olenashuru, Deputy Director Advocacy Mr. Elijah Letangule, the and Deputy Director Communications Mrs. Jennifer Wambua, for their hands-on approach in developing this booklet. We are also grateful to Mrs. Bellinda Akello, the Deputy Director Legal who dedicated considerable time in refining this publication.
We appreciate Mr. Franklin Ongeti for the conceptualization, design, illustration and layout of this booklet. We acknowledge the invaluable inputs from Jacinta Katee, Nancy Chepchumba, Eistaren Dokhe, and Dorothy Agathe. Finally, many thanks go to Wattuman Memba for editing this booklet.
LAND ISSUES
Kenya is in the midst of land reforms that have far-reaching implications for securing the land rights of rural people and promoting political stability and economic development.
These reforms are based on a National Land Policy (NLP), adopted in 2009 after years of wide consultation with various stakeholders. Past recommendations on land reforms contained in the Report of the Commission of Inquiry into the Illegal/Irregular Allocation of Public Land, popularly known as the ‘Ndung’u Report’ have not been implemented. The report notes that illegal allocation of public land in Kenya is “one of the most pronounced manifestations of corruption”. Among its recommendations, it calls for: all allocations of public utility land to be nullified and the lands repossessed; the investigation and prosecution of public officials who facilitated or participated in the illegal allocation; and the recovery of all monies and proceeds acquired as a result of it.
In 2013, the government formed a National Land Commission to act as the lead agency in land matters, working with the Ministry of Lands, Housing and Urban Development (MLHUD) and county-level institutions. These are some of the broad range reforms introduced by a new constitution promulgated in 2010.
FREQUENTLY ASKED QUESTIONS
TENURE SYSTEMS IN KENYA
Most people seeking land for development end up with unsuitable ones for the projects they had in mind simply because they did not understand the various categories of land and the tenure system applied in Kenya. Understanding types of land ownership is of paramount importance especially when it comes to purchasing land.
Land tenure is the act, right or period of holding land. There are two types of land tenure system in Kenya:
a) Freehold: It is the greatest interest a person can have on land as it gives the holder absolute ownership of the land for life. This means descendants can succeed the owner for as long as the family lineage exists. A freehold title deed generally has no restrictions as to the use or occupation. However, there are conditional freeholds, which restrict the use of the land, for instance, for agricultural purposes or ranching only. A freehold interest is also known as fee sample or absolute proprietorship.
b) Leasehold: This is the interest in land for a specific period subject to payment of a fee or rent to the grantor. Payment of rates is made to the respective county governments for services rendered. Leases are granted by the Government for public land, local authority for trust land and individuals with freeholds. The maximum term of government leases is 99 years.
A leaseholder can also apply for a renewal or extension of the lease more particularly if he or she wants to re-develop the property and the lease period is about to expire or the remaining period is not enough to recoup the investments.
WHAT IS A DEED PLAN?
This is a signed plan by the Director of Surveys showing the precise particulars of a surveyed piece of land. It shows the details such as the shape of the plot, the distances and bearings all-round the plot, scale of plotting, Deed plan number, land reference number, size of the plot in hectares, signature of the Director of Surveys, the date of authentication by the Director of Surveys and above all, it shows if the plot is a New Grant or an extension of lease. This in practice is under the provisions of Registration of Titles Act (RTA). The Deed Plan once duly prepared is attached to a certificate defining the current owner and any endorsements by the relevant Registrar in the event the property has changed hands or there are encumbrances therein whatsoever relating to the plot.
WHAT IS A CAVEAT?
The word Caveat means warning or proviso (something said as a warning, caution, or qualification). The lodging of a caveat over a property is a way telling anyone who wants to deal with the property to be aware of the fact that someone else’s interest already has priority.
WHAT IS A CAUTION?
A Caution is a notice in the form of a register to the effect that no action of a specified nature in relation to the land in respect of which the notice has been entered may be taken without first informing the person who gave the notice.
HOW DOES ONE PLACE AND REMOVE A CAVEAT OR CAUTION?
a) Notice and effect of Caution
The registrar shall give notice in writing of a caution to the proprietor whose land, lease or charge is affected. So long as the caution remains registered, no disposition which is inconsistent with it shall be registered, except with the consent of the cautioner or by order of the court.
b) Withdrawal/removal of the Caution
i. A caution can be removed by the person lodging the same, or by order or the court, or by the Registrar, if such person fails to remove it after being served with a notice to do so by the Registrar.
ii. The registrar may, on the application of another person interested, serve notice on the cautioner warning him that his caution will be removed at the expiration of the time stated in the notice. If at the expiration of the time stated the cautioner has not objected, the registrar may remove the caution.
c) Second Caution in respect to the same matter
The registrar may refuse to accept a further caution by the same person or anyone on his behalf in relation to the same matter as a previous caution.
d) Wrongful Caution
Any person who lodges or maintains a caution wrongfully and without reasonable cause shall be liable, in an action for damaged at the suit of any person who has sustained damage, to pay compensation to such person.
WHO CAN LODGE A CAVEAT OR CAUTION ON LAND?
Any person who is claiming a contractual or other right over land amounting to a defined interest capable of creation by a registable instrument, e.g. a lease, may lodge a caution with the Registrar against any dealing which is inconsistent with his interest. Entry of a transaction, with respect to such land, may not then be made unless the cautioner has received notice. Lodging of a caveat or caution without reasonable cause can lead to a remedy in damages.
Leases
A lease is an interest in land for a specific period of time and subject to payment of rent. Likewise there are also restrictions or conditions imposed by the lessor (land lord) to the lessee (tenant) on what he/she can do with the land. For example in the question above the person holding the 99 year lease is the lessee while the government is the lessor/land lord.
In Kenya the government grants leases for land especially in urban areas so as to safeguard community interests and to have direct control of the use and development of land. Examples of government lease terms are 33 and 66 year leases for the former trust land areas – now Community Lands or native reserves in the colonial period. Such towns included Kapsabet, Kakamega, Mariakani, Embu and Kisii among others.
In this case one could be given a 33 year term and on expiry of the same they would get an additional 66 years to make a total of 99 years. However, this was on conditions that they fulfilled the conditions in the lease in terms of developments and payment of statutory fees like annual rent and rates.
The 99 year leases were granted on the former government land (crown land)and examples included towns like Nairobi, Mombasa, Eldoret, Kericho, Nyahururu and Nyeri among others. For such land the government grants a 50 year term on expiry of the 99 year term. However a 99 year extension can be granted if the lessee proves that they will completely re-develop the land by putting up a new approved structure on the land.
The 999 year leases were granted by the former colonial government for agricultural farms in government land areas (crown land). Such farms are found in Nairobi and Rift Valley in what was famously known as the White Highlands. The 999 year leases being held by the former colonial farmers were transferred to the Africans who bought or were allocated the farms.
However, Sessional Paper No. 3 of 2009 on the National Land Policy recommends leases of not more than 99 years and consequently all such leases are converted by the government to 99 years with effect from 1st September 2010 after the promulgation of the constitution, 2010. The Land Policy 2009 is a vital document for anyone interested in land to read through.
WHAT IS LEASE EXTENSION?
ALease extension is granted by the government through the National Land Commission (NLC) when the lessee applies for an extension of term before the existing term has expired.
A good example is the question above where the lease term of 99 years witheffect from 1st January, 1920 still has 4 years before it expires. In this case if the lessee applies for an extension they will be granted an additional 50 years but from the date of approval and not in 2019 when the lease will expire. The advantage for the lessee in this case is that extension is granted while the land still belongs to him/her
WHAT IS LEASE RENEWAL?
Renewal of lease is granted by the government through the NLC when the lessee applies for an extension of term after the existing term has expired. For example in the above case if the lessee applies for an extension after 1st January 2019 at the time when his lease expires then he will be granted a renewal of lease through re-allocation. An allotment letter is issued granting the person the land with conditions. In renewal of the lease, since the lease term has expired the land reverts to the lessor who could be either the national or county government. The lessor consequently will re-allocate to the lessee if they meet all the conditions of the previous lease and the land is not required for a public purpose. The new term is given with effect from the date of expiry of the old term.
WHAT IS THE PROCESS OF RENEWAL/ EXTENSION OF TERM
When one needs to extend or renew a land lease an application is first lodged at the relevant County Government office within which the land is located. This means that the County Land Management Boards (CLMB) of the NLC will play a vital role. Before the same is approved the application is considered by the sections dealing with public health, roads, rates, water and sewerage among others.
The departments of Survey and Physical Planning in the National government are also consulted before the approval is granted by the County Land Management Boards, now operational in 44 Counties.
The NLC then implements the approval by preparing a new lease for the lessee. The new lease will bear the new extended term and an enhanced annual rent after re-valuation by a government valuer. Approval fees for renewal/extension of lease is Kshs 5000/= paid by the lessee.
In cases of extension of lease the lessee will surrender the existing title and on payment of the required legal fees a new lease/title will be prepared in his/her favour. In cases of renewal of lease a letter of allotment is issued and on payment of the legal fees stipulated in the letter a new lease/title is prepared for the lessee.The new lease is then registered by the relevant Land Registry under the Ministry of Land, Housing and Urban Development.
MOVING FORWARD
It is advisable to apply for extension of lease before the term expires to avoid a scenario where property ownership hangs in limbo as in the case when the lease expires and thus reverts to the lessor until that time when the lessor will approve the renewal of lease.
Likewise the lessee must always read and implement conditions stipulated in the lease to ensure compliance and reduce chances of denial of extension/renewal of lease due to breach of contract.
Statutory fees like annual rent and rates should always be paid on time to avoid penalties and comply with set conditions. Remember the lessor reserves the right to grant an extension/renewal of lease and compliance to conditions imposed by the lessor enhances chances of the extension/renewal of term.
In practice the government as a lessor has always been fair to lessees and extension/renewal is usually granted if conditions of the previous lease were adhered to and the land is not required for a public purpose.
Community Land
1. WHAT IS A OF “COMMUNITY” ?
A Community is a group of people with common ancestry, culture, language or similar interests (Community of interests).
2. WHAT IS “COMMUNITY OF INTERESTS” ?
This is group of people enjoying common rights, privileges, interests or living in the same place.
3. WHAT ARE CUSTOMARY LAND RIGHTS?
They are rights derived from customary law, customs or practices.
4. WHAT IS COMMUNITY LAND AND WHAT CONSTITUTES COMMUNITY LAND?
Community land is all land used traditionally or historically for communal purposes and land used as Community Settlement area. It is identified on the basis of ethnicity, culture and similar community of interest. It also includesland lawfully held, managed or used by specific communities as community forests, grazing areas, shrines, Ancestral lands and lands traditionally occupied by hunter gatherer communities or, land lawfully held as trust land by the County governments .
5. HOW WILL COMMUNITY LAND BE MANAGED?
i. There will be a register of all Community lands in Kenya.
ii. Communities will be registered as corporate bodies and a register maintained.
iii. Registrations will be done in the name of the community.
iv. Community Assemblies will be held annually in which every member of the community shall be entitled to attend and participate.
v. Community Land Management Committees will be formed during the community assembly to manage every parcel of community land.
vi. Community Land Boards present in each sub – county will work with the Community Land Management Committees.
6. CAN THE TRUSTEES DISPOSE THE LAND?
Community land shall NOT be disposed of or otherwise used except in terms of legislation specifying the nature and extent of the rights of members of each community individually and collectively.
7. IS IT POSSIBLE TO CONVERT COMMUNITY LAND TO PUBLIC OR PRIVATE?
Yes! Community land may be converted to public or private land through compulsory acquisition, transfer, surrender, or allocation by the Community Land Management Committees but this has to be agreed upon through a County Assembly.
8. WHAT ARE THE SOME OF THE SPECIAL RIGHTS UNDER COMMUNITY LAND?
A Committee may upon application and with approval of the community assembly may allocate part of the community land to a member or a group of members of the community for exclusive use and occupation but no separate title shall be issued for such parcel e.g. grazing rights, cultural or religious rights.
9. HOW WILL THE NATURAL RESOURCES, LAND USE PLANNING AND INVESTMENTS IN COMMUNITY LAND BE MANAGED?
• Natural resources within the community should be managed sustainably, with accountability and transparency and should benefit the whole community on the basis of equitable sharing.
• Any investment relating to exploitation of natural resources shall be agreed between the investor and the community according to Article 71 of the Constitution.
• Benefit sharing will be at 30% of the income of the investor.
10. HOW ARE DISPUTES IN RELATION TO COMMUNITY LAND HANDLED?
• Dispute resolution mechanisms under traditional and customary laws
• Mediation
• Arbitration
• Courts e.g. the Land and Environment Court.
11. HOW DOES THE PROPOSED COMMUNITY LAND BILL ENSURE THAT THE INTEREST OF WOMEN ARE TAKEN CARE OF?
• The proposed community land bill provides that all natural resources will be managed sustainably to and should benefit the whole community on the basis of equitable sharing.
• The Constitution has introduced the principle of 2/3rds majority which will apply in all the committees formed to manage community land.
12. WHAT WILL BE THE FUNCTIONS OF THE COMMUNITY LAND BOARDS?
The Functions of the Community Land Boards are;
a. To Hold and manage Community land,
b. Document all Community land,
c. Regulate all transactions in community land and facilitate the recording and issuance of titles for Community land by the National Land Commission.
13. HOW WILL THE COMMISSION ENSURE THAT THE COMMUNITY LAND LEGISLATION SECURES THE GRAZING PATTERNS OF THE PASTORALISTS AND ACCESS TO LAND?
To secure access to land and land based resources for vulnerable groups, the Commission shall:
(a) Develop mechanisms for identifying, monitoring and assessing the vulnerable groups;
(b) Establish mechanisms for redistribution of land and resettlement;
(c) Facilitate their participation in decision making over land and land based resources; and
(d) Protect their land rights from unjust and illegal expropriation.
14. HOW WILL THE COMMISSION ENSURE SECURITY OF PASTORALISTS’ LIVELIHOODS AND TENURE TO LAND?
To secure pastoralists livelihoods and tenure to land, the Commission shall:
(a) Recognize pastoralism as a legitimate land use and production system;
(b) Review the Land (Group Representatives) Act and provide for pastoralism in the “Land Act”;
(c) Establish suitable methods for defining and registering land rights in pastoral areas while allowing pastoralists to maintain their unique land systems and livelihoods;
(d) Establish a legislative framework to regulate transactions in land in pastoral areas;
(e) Ensure that the rights of women in pastoral areas are recognized and protected;
(f) Provide for flexible and negotiated cross boundary access to protected areas, water, pastures and salt licks among different stakeholders for mutual benefit; and
(g) Ensure that all land uses and practices under pastoral tenure conform to the principles of sustainable resource management.
Compulsory Acquisition
This is the acquisition of land by the government for a public purpose but subject to fair and prompt compensation. Publication of the intention to acquire is done through the Kenya gazette and County gazette. A notice is also given to the Land Registrar and every person with an interest in the land.
Land compulsorily acquired by the government thus cannot be used for private development and non-payment of compensation may lead to cancellation of the acquisition. In case the government is unable to use the land for the intended purpose it should give priority to the original owners to acquire the land back on restitution of the full amount paid as compensation. Public purpose (or public interest) is limited to matters of regulating rights and land use in;
• The interest of defense
• Public safety
• Public order
• Public morality
• Public health
• Urban planning, or the development or utilization
PROCESS OF COMPULSORY ACQUISITION
A. PRE -INQUIRY
• Request; The NLC receives a request for acquisition from the acquiring body through the respective Cabinet Secretary or County Executive member. The land should be acquired for public purposes or in public interest. .
• Verification meeting; Before gazettement, the NLC will request for a verification meeting with the acquiring body (the body that wants the land). In this meeting, the NLC will require the acquiring body to provide a list of the affected parcels of land and the respective owners, title search details, cadastral maps of the affected areas, a Resettlement Action Plan (RAP) accompanied by a list of persons affected by the project (PAPs) so that their application can be put into consideration.
• Notice of intention to inquire land is published in the gazette after the Commission certifies in writing that the land is required for public purposes or in public interest for a stated public purpose. Upon verification, the NLC shall publish notice of intent and shall deliver a copy of the notice to the registrar and to every person who appears to have an interest in the land.
• Ascertainment of suitability of land; Permission for entry of officers to carry out activities ascertaining whether the land is suitable for the intended purpose. All land to be compulsorily acquired shall be geo-referenced and authenticated by the authority responsible for survey both at the national and county government.
B. INQUIRY
• Notice of inquiry; The NLC shall appoint the date for the inquiry at least thirty days after publishing the notice of intention to acquire, and at least 15 days before the actual date of the inquiry. A copy of the notice is served on every person who appears to have an interest on the land. .
• Receipt of claims; By the date of inquiry, any written claim to compensation is delivered to the NLC not later than the date of inquiry. The inquiry determines who are the persons interested in the land, and receives claims from the said persons.
• Hearing; for the purposes of an inquiry, the NLC shall have powers of the court to summon and examine witnesses including persons with interests to administer oaths and affirmations and to compel production and delivery of title documents to the NLC. This includes the public body for whose purpose the land is being acquired.
C. POST INQUIRY
• Award of compensation; upon conclusion of the inquiry, the NLC shall make a separate award of compensation for every person whom the NLC has determined to be interested in the land. The NLC shall then serve on each person a notice of the award and offer of compensation.
• Land in place of compensation; the NLC may agree with the person who owned that land that instead of receiving an award, the person shall receive a grant of land instead not exceeding in value the amount of compensation which the NLC considers would have been awarded. Upon the conclusion of such agreement that person shall be deemed to have received all the compensation entitled to him/ her in respect of the interest in that land.
• Payment of compensation; upon acceptance of the award, the NLC shall promptly pay compensation to the interested persons. If the award is not accepted, or if there is a dispute about who is entitled to compensation, the amount of compensation, is paid into a special compensation account held by the NLC.
• Payment of interest; if the amount of any compensation is not paid, the NLC shall on or before taking possession open an account into which the NLC shall pay interest on the amount awarded at the prevailing bank rates from the time of taking the possession until the time of payment.
• Payment of additional land; if the acquired land is greater than the area of land in respect of which an award is made, compensation shall be paid for the excess area.
D. POSSESSION AND VESTING
• Formal taking of possession and vesting; after the amount of the first offer had been paid, the NLC shall then take possession of the land by serving a notice specifying the day of possession on every interested person. The title shall then vest in the national or county government as the case may be.
• Urgent taking of possession; in cases of where there is an urgent necessity for the acquisition of land, and it would be contrary to the public interest for the acquisition to be delayed by following the normal procedures, the NLC may take possession of uncultivated or pasture or arable land upon the expiration of 15days from the date of publication of the notice of intention to acquire.
• Formal possession and vesting; upon taking possession of land, the NLC shall inform the registered owner of the land and the registrar that possession of the land has been taken place and that the land has been vested in the national or county government as the case may be.
• Surrender of document; the NLC shall require the affected persons to deliver possession documents to the registrar, who shall proceed to either cancel them if the whole land has been acquired, or register the resultant parcels, or issue documents for them. The NLC shall instruct the acquiring body to acquire all the land if it is satisfied that the partial acquisition will render the remaining land inadequate for its intended use or disproportionately reduce the value of the remaining land.
• Cancellation and acquisition; The NLC may at any time before possessions is taken of any land acquired, revoke the acquisition and shall compensate damage incurred on persons with interest. Preemptive rights to re-acquire the interest shall be to original owners or their successors upon restitution of full amount so compensated.
• Environment and land court; any dispute of any matter provided for under the Act may be referred to the Land and Environment Court for determination. Under the repealed cap 295, a compensation tribunal was provided for whose jurisdiction was to determine issues to do with valuation and compensation, while matters to do with disputes in law were referred to the court. A proposal has been forwarded to create a tribunal as part of the amendments to the Land Act, 2012.
• Rights of entry and consequences of obstruction; an officer authorized by the NLC shall have rights of entry at all reasonable times. Obstructing the NLC or an officer in undertaking prescribed activities is an offence and liable on conviction for imprisonment for a period not exceeding five years or fine not exceeding three million or to both.
• Way leaves and easements; applications shall be made in the prescribed form to the nlc by the state department or public body applications shall be made in the prescribed form to the NLC by the state department or public body for the creation of a way leave (a right of way over or under another’s ground or property).The NLC shall not begin the process of creating a way leave until all prescribed information has been submitted to it. The applicant shall serve a notice on all persons occupying the affected land, the county government in whose jurisdiction the proposed way leave is to be created and any person interested in the land. The NLC may also create a public right of way for the benefit of the public or community.
• Valuation for compensation; valuation for compensation includes the following;
• The market value of the land and improvements
• Damage sustained or likely to be sustained because of division or separation of land
• Damage sustained or likely to be sustained because of the acquisition damaging the other property
• Expenses incurred due to change of residence or business
• Expenses incurred due to decreased or loss of business
• 15%statutory disturbance allowance
• Other expenses incurred as a result of the acquisition e.g. Professional fees, etc.
GUIDELINES REQUIRED INFORMATION AND DOCUMENTS FOR COMPULSORY ACQUISITION;
National Land Commission (NLC) will require the following preliminary information and documents to be provided by an acquiring body upon request before the land acquisition or easement can be procured.
1. Prior approval from their respective Cabinet Secretary before the NLC commences the acquisition process.
2. Cadastral drawings showing how the infrastructure cuts out each land parcel, the parcel list table detailing land parcel numbers, total area of land parcels and acreage affected by the infrastructure for each parcel. These drawings shall be submitted to the NLC for scrutiny and records.
3. A listing for parcel numbers indicating the plot reference number, registered owner and affected acreage column in acres. This should be submitted in both soft and hard copy.
4. Official searches of affected land parcels. The NLC shall assist where necessary.
5. The Environmental Impact Assessment report (EIA) and appropriate approvals/certification for the project.
6. The Relocation Action Plan (RAP) report.
7. Acknowledgement on availability of funds to allow prompt compensation as provided in the constitution. The NLC will request entities to remit compensation money into the land compensation fund to be administered by the NLC.
8. All participants will have to take the Land Acquisition Committee and sub-committee members on a site tour for general appreciation of the project in respective locations that will be affected. This will enable informed decision making.
9. A final survey for vesting of the acquired land to the National or County Government will have to be done by the acquiring authority .The NLC can assist in this exercise at costs borne by the acquiring body.
Succession & Will
Inheritance or succession may be defined as the “the transfer of title to property under the law of descent and distribution” (Black’s Law Dictionary, 5th Edition). Succession would exclude those who take by deed, grant or any form of purchase contract.
WHAT IS THE LAW OF SUCCESSION AND HOW DOES IT APPLY?
The Law of Succession is the law regulating the inheritance of property. The Law of Succession Act applies universally to all Kenyans. This is basically the substantive law dealing with matters succession in Kenya. It’s important to note that this law has to be quoted first before other laws that might equally be affecting matters succession.
HOW IS THE PROPERTY OF A DECEASED PERSON HANDLED?
On one hand, immovable property in Kenya of a deceased person whatever the residence of that person at the time of his/her death will be regulated by the Kenyan law on succession and on the other hand, movable property of a deceased person is regulated by the law of the country of the residence of that person at the time of his/her death.
WHAT IS TESTATE SUCCESSION?
Testate succession is where the deceased leaves a written or oral will. It is important to note that the deceased must have had the capacity (sound mind and off age) to make the will at the time of making the will. In other words, the deceased must have had the knowledge and approved the contents of the will.
WHAT IS INTESTATE SUCCESSION?
Intestate succession is where there is no will left by the deceased. It applies where the deceased has left ONE surviving spouse and a child or children. In this regard, the surviving spouse shall be entitled to:-
• The personal and household effects of the deceased and,
• The intestate property but cannot sell this property. This is because the spouse is only holding it on behalf of the children. If the spouse remarries, he/she loses her entitlement to the intestate property.
WHY BOTHER WITH SUCCESSION?
As an owner of a beneficial interest in the land property, you can be part of making decisions involving the property, including how it is used and developed, and get a share of any income that is distributed from the property.
The Will
WHAT IS A WILL?
A will is a mere intention of the maker. It can be amended by the same person during his/her life time.
• A person, may through his/her will appoint an executor. This is a person named in the will who has the legal responsibility to take care of a deceased person’s remaining financial obligations e.g. property disposal, paying bills, taxes etc.
• It’s a mere intention of the maker – can be amended but only by the maker during their lifetime.
• Can deal with property acquired after death of maker (ambulatory)
WHO CAN MAKE A WILL?
Any person can write a will at any time as long as they are of sound mind, and are 18 years old and above.
WHEN DOES THE WILL TAKE PLACE?
The will being an intention of the maker, it can only take effect after the death of the maker. (testator / testatrix)
WHAT ARE THE BENEFITS OF MAKING A WILL?
• The deceased can exercise control over property
• It can help avoid courts from determining who is entitled to property
• Enable appointing property representatives of choice
• Avoiding disputes over property
• Persons outside family can have property
• The deceased can decide on how he/she can be disposed off.
WHAT ARE INVALID WILLS?
•When the maker of a will lacks knowledge and approval of a will, the will is as if it was not made at all. This is because of
• Fraud / forgery
• Coercion
• Mistake / duress / undue influence
ORAL WILL
It is only valid if;
• Made before 2 or more competent witnesses;
• The maker dies within 3 months of making it;
• An oral will made by a member of the armed forces during a period of active service shall be valid if the maker of the will dies during the same period of active service even if he/she dies more than 3 months after making the will;
• If there is any conflict in evidence of witnesses as to what was said by the deceased in making an oral will, the oral will shall not be valid except if the contents can be proved by a competent independent witness.
WRITTEN WILL
A written will must have the following characteristics:
• It must be signed by the maker.
• Incase its signed by somebody other than the maker, then this should be done in the presence of the maker and under his/her directions.
• It must me witnessed by two or more witnesses and these witnesses MUST NOT be beneficiaries in the will otherwise there shall be need of an additional two witnesses.
• If the maker of the will refers to another document in his will, the document shall be considered as part of the will as long as it is verified that it is the exact same document the maker was referring to in his/her will.
• An executor shall not be disqualified as a witness to prove execution of the will or to prove the validity or invalidity of the will.
• If the dependent or dependents feel that the deceased’s will does not provide adequately for their needs, they may make an application to the Court.
• The Court may order a specific share of the property be given to the dependent (s) or periodical payments or lump sum payment.
WHAT DOES A “DEPENDENT” MEAN?
It means:
• The wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased before his death.
• The deceased’s parent, step parents, grand-parents, grandchildren, step- children, children whom the deceased had taken into his family as his own,
• Brother and sisters, and half -brothers and half-sisters, who were being maintained by the deceased before his death.
• Where the deceased is a woman, her husband if he was being maintained by her before her death.
REVOCATION, ALTERATION AND REVIVAL
A will can be revoked, altered and revived only by the maker at the time when he is competent to dispose of his property. This can only happen when the maker takes some action to indicate that he/she no longer wants the will to be binding. For this to be effective, the intent of the maker, whether express or implied must be clear and an act of revocation consistent with this intent must take place.
WHAT IS INTESTATE SUCCESSION?
This is when there is no will left by the deceased (intestate). In case the deceased left one surviving spouse and a child or children, the surviving spouse shall be entitled to:-
• The personal and household effects of the deceased
• The intestate property but cannot sell this intestate property as the spouse is holding it on behalf of the children. If the spouse remarries, he/she loses his/her entitlement to the intestate property.
Where the deceased has left a surviving child or children but no spouse, the intestate property will be transferred to the surviving child or divided equally among the surviving children.
Where the deceased left no surviving spouse or children, the intestate shall be transferred in this order of priority:
• Father; or if dead,
• Mother; or if dead
• Brothers and sisters, and any child or children of deceased brothers and sisters, in equal shares; or if none
• Half -brothers and half sisters, and any child or children of deceased half-brothers and half-sisters, in equal shares; or if none
• Distant relatives up to the sixth degree in equal shares.
If the deceased is not survived by any of the above then the intestate property estate shall be taken up by the state.
Gender Land Rights & Children
WHO CAN OWN LAND IN KENYA?
Section 40 of the Constitution of Kenya stipulates that every person has right to own land of any description in any part of Kenya. The National Land policy 1.5.1 (7), (c), (d) put more emphasis on gender equity and land rights.
WHAT DO WE MEAN WHEN WE SAY WOMEN SHOULD HAVE ACCESS AND CONTROL OVER LAND?
We mean women should not only have access to land as the right but also enter upon and useland, exercise control over land as one’s ability to make decisions with regard to the land.
These include the ability to:
• determine the size of land used for farming activities and whether the land will be used for food or cash crop production.
• transfer land titles, whether by sale or inheritance (land ownership)
WHAT ARE SOME OF THE RIGHTS OF SPOUSES CONCERNING MATRIMONIAL PROPERTY?
Matrimonial Property Act of (2013) the matrimonial property act provides that married women has the same rights as married man to acquire, administer, hold, control, use and dispose of property whether movable or immovable; enter into contract and sue and be sued in her own name .
WHAT IS A MATRIMONIAL HOME?
It means any property that is owned or leased by one or both spouses and occupied or utilized by the spouses as their family home, and includes any other attached property.
WHAT HAPPENS WHERE A HUSBAND OR WIFE HAS ACQUIRED PROPERTY BEFORE OR DURING MARRIAGE WHICH DOES NOT BECOME A MATRIMONIAL PROPERTY?
The husband or wife may acquire beneficial interests that are equal to the amount of contribution made by the spouse.
WHAT DOES THE SPOUSE LIABILITY LAW STATE?
Any liability incurred by a spouse before the marriage and relating to the property shall, after marriage, remain the liability of the spouse who incurred it. If the property becomes matrimonial then it shall be equally shared by the spouses and unless they otherwise agreed .The law states that parties to marriage shall equally share the liability incurred during the subsistence of the marriage for the benefit of the marriage or reasonable and justifiable expenses incurred for the benefit of marriage. .
WHAT HAPPENS IN CASE OF DIVORCE?
The spouse will not only share benefit but liabilities on the matrimonial property.
WHAT RIGHTS DOWOMEN – MARRIED OR SINGLE- HAVE?
• Women have a right to acquire and own land whether individually or as a group.
• Daughters have the right to inherit their parents’ land and property.
• Women have a right to be elected and or appointed into land governance institutions.
• Married women have the right to joint ownership of land and property acquired during marriage.
• Married women have the right to transact on land in consultation with their husbands and vice versa.
• Widows have the right to inherit their deceased husband’s land and property.
Children Land rights
A ‘child” means an individual who has not attained the age of eighteen years in Kenya. Generally, children cannot own land or property in their own right as children. However, land and property can be held on trust for their benefit and use.
WHAT ARE LANDRIGHTS AS RELATES TO ORPHANS?
Orphans have the right to access and use their parents land and property whether or not it is held in trust by an appointed and responsible adult member of the immediate family. Upon reaching the age of 18, they have the right to be registered as the rightful owners of land and the properties previously held by their deceased parents.
WHAT ARE THE LANDRIGHTS AS THEY RELATE TO THE YOUTH?
The constitution of Kenya defines an ‘adult’ as an individual who has attained the age of eighteen years. For the purpose of determining rights accruing to the youth, there is need to appreciate that the constitution regards youths as adults and thus;
• Each youth has the right to ownership, access and control of land and property.
• Though the right to inherit from their parents is discretionary, in the event of inheritance by the siblings, both daughters and sons have equal rights.
LAND RIGHTS OF MARGINALIZED COMMUNITIES / MINORITY GROUPS
A) MARGINALIZED COMMUNITY
The Constitution defines a “marginalised community” as ;
1. A community that, because of its relatively small population or for any other reason, has been unable to fully participate in the integrated social and economic life of Kenya as a whole; or
2. A traditional community that, out of a need or desire to preserve its unique culture and identity from assimilation, has remained outside the integrated social and economic life of Kenya as a whole; or
3. An indigenous community that has retained and maintained a traditional lifestyle and livelihood based on a hunter or gatherer economy; or
4. Pastoral persons and communities, whether they are nomadic or a settled community that, because of its relative geographic isolation, has experienced only marginal participation in the integrated social and economic life of Kenya as a whole.
B) MARGINALIZED GROUP
The Constitution defines a “marginalized group” as a group of people who, because of laws or practices before, on, or after the effective date, were or are disadvantaged by discrimination on one or more of the following grounds; including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.
WHAT ARE THE SPECIFIC RIGHTS AS THEY RELATE TO MINORITY GROUPS?
• Right to participate in economic activities in the country
• Right to preserve their cultural way of life in line with article 11 of the Constitution
• Right to representation in land governance institutions and participation in land related decision making processes.
• Right of access to the shore lines of lakes and rivers and public fish landing sites for fishing communities to enable them carry out their economic activities
• Right of access to community forests for hunter gatherers communities to sustain their livelihoods.
• Right of access to communally held land for grazing purposes for the Pastoral communities
