Good news for people deprived of land by kin
A Supreme Court judgement has given a second chance to people who have lost land to relatives who were holding it in trust to reclaim it.
For many years, the practice has been that for one to get a piece of ancestral land, they had to prove that they had actually lived on it for some time or possessed communal land.
Claiming ancestral land, especially for those who have been away for a long time, has been difficult, with courts over time holding that customary law rights are extinguished upon registration of land in an individual’s name.
This has seen people dispossessed of their land by relatives who argue that they have been away for long periods and do not, therefore, deserve a share of it.
Under a judicial dogma referred as 'Bennett doctrine', many lost their ancestral land because they neither lived nor held ownership documents for the parcels.
The ideology that has haunted many Kenyans for decades emanates from Mr Kenneth Bennett, the first judge, in 1972, to make a pronouncement that customary law could not supersede the right of a person who had a registered title, even if it is a clan or communal land.
But the Supreme Court, in a decision that gives a chance to those who want to claim ancestral land left for them under a person’s care, has declared that one will be required to prove that a trust existed even if they did not live or even possess the same.
The decision was delivered last Friday by Chief Justice David Maraga and justices Mohamed Ibrahim, Jackton Ojwang, Smokin Wanjala and Njoki Ndung’u.
The judges ruled that one will now, among other things, need to prove that the land he or she wants a share of is family, clan or group land.
They will equally have to prove that they belong to such a family, group or clan and could have been entitled to be registered as an owner or a beneficiary but due to circumstances such as age and immigration they were not.
The claim will be directed to the registered person who is also a member of the group, family or clan.
However, the court will not entertain cases derived from distant or questionable family ties.
Land demarcation in Kenya started in 1952. At the time, many families had their siblings either in the forest fighting for freedom or in the detention. Others were too young, hence land was left in the communal trust of someone.
Subsequently, after Kenya’s independence struggle, internal community fights and urbanisation, people migrated to different parts of the country looking for other opportunities and even other land to farm.
Many have lost their legitimate right to own land stemming from their forefathers on account that although they proved that the land was left in trust, they had not lived or owned it.
“Both exponents of colonial land policy and jurisprudence either completely disregarded, or did not fully appreciate, the nature, scope, and complexity of African land relations,” the Supreme Court judges ruled.
“Land in a traditional African setting is always the subject of many interests and derivative rights. Hence, customary law does not vest 'ownership' in land in the English sense, in the family, but ascribes to the family the aggregate of the rights that could be described as 'ownership'.”
According to the Supreme Court it may emerge through evidence that part of the land, now registered was always reserved for family or clan uses, such as burials, and other traditional rites.
It could also be that other parts of the land, depending on the specific group or family setting, was reserved for various future uses, such as construction of houses and other amenities by youths graduating into manhood.
“The categories of a customary trust are therefore not closed. It is for the court to make a determination, on the basis of evidence, as to which category of such a trust subsists as to bind the registered proprietor."
The judges, however, pointed out that not every claim of a right to land will qualify as a customary right.
They ruled: “Flowing from this analysis, we now declare that a customary trust, as long as the same can be proved to subsist, upon a first registration, is one of the trusts to which a registered proprietor, is subject under the proviso to Section 28 of the Registered Land Act.”