By Harold Ayodo
The clash between English and Customary Law on land is to blame for the many family disputes over property. Many a son is serving a life sentence for hacking to death his father, brothers and other close relatives over land disputes.
Most of these disagreements arise after one member, often a first born, registers himself or herself as the absolute owner of the ancestral land. Section 28 of the Registered Lands Act (RLA) provides that once a person is registered under it as the owner of a freehold estate, the title cannot be contested. The RLA, which is mainly borrowed from English Laws, differs from Customary Law, which provides for communal ownership of property. Customary Law provides for inheritance of property that is believed to belong to the family through ownership dating back to grandparents.
Most people, however, do not understand the legal implications of these laws. In many cases, family members resort to violence, which often turns tragic, on realising that their very own brothers, who they thought were trustees of family property, are now registered as absolute owners.
In court, relatives facing eviction argue that Customary Law allows them occupation and use of ancestral property; that they possess equitable interests in the property especially when they have lived on it for decades. Registered family members on their part argue that the RLA clearly provides that they are indefeasible owners of property and contesting their title has no basis.
Clashing laws
The High Court and Court of Appeal, however, are yet to set judicial precedents on the conflicts of family members due to the clashing of English and Customary Laws. Courts have issued conflicting rulings that indicate registered family members are absolute owners, arguing registration extinguishes claims based on Customary Law.
Family property tussles where the High Court has ruled in favour of registered owners include Selah Owino vs Orego Opiyo (1972) EA 227 and Esiroyo vs Esiroyo. High Court judges Justices Bennet and Kneller ruled in the above disputes that customary rights on property cease to exist with registration.
There are also occasions when the High Court and Court of Appeal have ruled that registered family members hold the property as trustees not absolute owners. Judges who support the Customary Trust View ruled in the case of Mwangi Muguthu vs Maina Muguthu that registration does not disinherit other family members. Justice Madan ruled in the above case that registration of the eldest son as owner — in accordance with Kikuyu customs — had the notion of trust inherent in it.
Another case where the High Court sided with Customary Law in a dispute between registered and unregistered family members is Edward Limuli vs Marko Sabayi. Prof Smokin Wanjala in his book, Land Law and Disputes in Kenya, says the law should protect equitable interests of unregistered members.
