Family Land in Kenya: Succession, Trusts and Land-Holding Companies

Land held within a family rarely stays simple for long. A parcel registered in a grandparent’s name can, within a generation, become the subject of a succession dispute among several branches of a family. This guide to family land in Kenya explains how succession law treats land, when a trust can attach to it, and why some families hold land through a company instead of in individual names.

How Family Land in Kenya Passes on Death

Land owned by an individual at death forms part of the estate and is administered under the Law of Succession Act (Cap. 160). Where there is a will, an executor applies for probate; where there is none, an administrator applies for letters of administration. Under section 71, the holder of a grant must apply for confirmation after six months, or such shorter period as the court directs, “in order to empower the distribution of any capital assets”.

Section 45 prohibits anyone from taking possession of, disposing of or otherwise intermeddling with the free property of a deceased person without authority under the Act or a grant. Contravention is an offence punishable by a fine of up to KES 10,000, imprisonment for up to one year, or both, and the person is answerable to the rightful executor or administrator for the assets involved.

Intestate Succession

Where there is no will, the Act sets the order of devolution:

• Spouse and children (section 35). The surviving spouse takes the personal and household effects absolutely and a life interest in the whole residue of the net intestate estate. The Act provides that a widow’s interest ends on re-marriage. During the life interest the spouse has a power to appoint capital to the children by way of gift taking immediate effect.
• Children but no spouse (section 38). The net intestate estate goes to the surviving child, or is divided equally among the surviving children.
• Neither spouse nor children (section 39). The estate devolves in the order of priority set out in that section.
• Polygamous intestate (section 40). The estate is first divided among the houses according to the number of children in each house, with each surviving wife counted as an additional unit.

The life interest is not ownership. Under section 37, a spouse with a life interest may, with the consent of all co-trustees and all children of full age, or with the consent of the court, sell property subject to the interest if it is necessary for the spouse’s own maintenance. In the case of immovable property, the exercise of that power is always subject to the consent of the court.

Family Land and the Land Control Act

Where the land is agricultural land in a land control area, section 6(3) of the Land Control Act exempts transmission under a will or on intestacy from the consent requirement. The exemption does not apply where the transmission would divide the land into two or more parcels held under separate titles, so beneficiaries who want separate titles to a controlled parcel must obtain Land Control Board consent. Our guide to controlled and uncontrolled land explains that process.

Trusts Over Family Land

Section 28(b) of the Land Registration Act provides that registered land is subject, without their being noted on the register, to overriding interests that include trusts, including customary trusts. A registered owner can therefore hold land subject to a trust even where the register shows only the owner’s name. Disputes usually turn on evidence: who contributed to the land, what was understood when they did, and whether the family treated the land as held for a wider group. A general assertion that “everyone knew” the land was meant for a relative is rarely enough on its own, so keep documents, payment records and witness accounts.

Holding Family Land Through a Company

Some families transfer land into a private company and allocate shares among family members or branches. Under section 19 of the Companies Act, 2015, a registered company becomes a body corporate from the date of incorporation, so the company owns the land and the shareholders own shares. When a shareholder dies, the shares form part of the estate and are administered under the Law of Succession Act, while the land remains registered in the company’s name. This can avoid repeated succession proceedings and the fragmentation of a parcel into uneconomic holdings across generations.

The structure only works if it is set up properly:

• the articles should address share transfers, pre-emption rights before shares leave the family, and what happens to a deceased shareholder’s shares pending confirmation of a grant;
• a separate shareholders’ agreement should record expectations on dividends, use of the land and decision-making between branches; and
• if the land is agricultural land in a land control area, moving it into the company is itself a controlled transaction needing Land Control Board consent, and dealings in shares of a private company that owns such land are also controlled.

Charging Family Land

Where title is jointly held or held by a company, lenders require the consent of all registered co-owners and, for a company, proof of board authority. Under section 79(3) of the Land Act, a charge of a matrimonial home is valid only if the chargor and any spouse living there executed it, or the documents show assent. Our guide to charging property sets out the process.