Customary property: I'm in a financial fix, can I sell our ancestral land?

He says ancestral land is a property held by one generation in trust for the next, in accordance with customary trust principles.

This concept is rooted in the idea of intergenerational equity—a legal principle that ensures land is preserved and managed not only for current use but also for the benefit of future generations.

It's a principle that the Supreme Court of Kenya upheld in the case of Isack M'inanga Kiebia v. Isaaya Theuri M'Lintari (2018) eKLR, affirming that land held under a customary trust should not be treated as personal property.

Under the Land Registration Act (Cap. 300), customary trusts are recognised as overriding interests. This means that even if such interests are not recorded on the land title, they still carry legal weight and must be respected.

Therefore, when land is proven to be held under a customary trust, it cannot be sold freely. Its primary purpose is to be preserved and passed on to the next generation or to be used in line with the terms of the trust.

So, can you sell it?

It is difficult because selling land held under such a trust without fulfilling these conditions is legally problematic. The vendor cannot dispose of the land, and any sale made in contravention of the trust can be declared void.

On the other hand, land that is held—without customary obligations—can be legally sold by the owner. It is not burdened by the terms of a trust and grants the holder full discretion over its use.

However, when it comes to inheritance, both types of land—whether held absolutely or under a customary trust—can be passed down through Kenya's succession laws. The key distinction lies in how the land is managed and transferred during the owner's lifetime.

While absolute ownership gives the holder the right to sell, lease, or bequeath the land at will, land under customary trust carries the responsibility of protecting the interests of future generations.

If the land can be sold, what documentation is required?

Ordinarily, the sale of land involves several key documents—most notably, the title deed and a transfer document.

Depending on the type and location of the property, specific consents may also be required. In the case of ancestral land, this typically includes consent from the Land Control Board, which serves as a safeguard.

Before giving their approval, the board sometimes listens to family members to assess whether they approve the sale.

If the original owner is deceased and the family cannot agree on whether the land was ancestral, what happens?

Such matters often end up in court. In these cases, the party that presents the most credible evidence—either proving or disproving the existence of a customary trust—will ultimately prevail.

The court bases its decision on the strength and reliability of the evidence presented, not merely on family claims or assumptions.

How can one prove that land is held under customary trust?

There could be something written, or it could be how the land was passed on to the next generation.

Traditionally, elders would call the family together and express their wishes regarding the land. In modern times, written wills can indicate whether the land is being passed under a customary trust.

If it's being held under customary trust, it is based on the customs under which it was inherited. But as the law currently stands, even the spouse has a right to continue holding the land in trust for the next generation.

What legal disputes commonly arise from the sale of ancestral land?

One major issue: the lack of proper documentation relating to the land being held under a customary trust. This absence often creates loopholes and results in lengthy legal battles.

Can ancestral land be subdivided?

Yes—but only if the current generation agrees. Subdivision requires consensus among existing landholders. The resulting portions are usually distributed in equal shares, with a future transfer subject to how the trust is to be carried forward.

Can a court reverse a sale if rightful heirs were not consulted?

Yes. If someone proves that the property was being held in a customary trust, it means the seller did not have the right to sell it. Legally, they lacked good title to pass to the buyer.

Can children or a spouse give consent for the sale of ancestral land?

No. Your children or spouse cannot sign consent forms to allow the sale of land held under a customary trust. However, for land passed to you absolutely during your marriage, they can sign either for or against its sale.

Can you stop your parent from selling ancestral land?

Yes, but only under specific circumstances. You can argue that your parent is holding the land in trust for the next generation.

However, such claims usually arise after the parent has passed away. While alive, the parent is still regarded as the trustee, and it can be difficult to contest their decisions unless there is clear evidence of a breach of trust.

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