Land in an African setting is always subject to many interests and derivative rights; such rights could be vested in individuals or group units. These rights and interests frequently co-exist with each other. Accordingly, in an African set-up, particularly regarding the initial registration of land after Kenyan independence, the registered proprietor of such land rights and obligations derives their validity from customary law and practice. This brings forth the doctrine of customary trusts in Kenya.
Rooted in Kenya’s land tenure system, this doctrine recognises the rights of individuals or communities who hold beneficial interests in land under customary law, even when the legal title is registered in another person’s name. This article explores its statutory foundation, judicial interpretation, key elements for proof, and the critical due diligence steps for prospective buyers.
Legal Definition and Statutory Framework of Customary Trusts in Kenya
Under the Land Registration Act, 2012 (No. 3 of 2012), the legal foundation of customary trusts is explicitly recognised. Section Under Section 25 of the Land Registration Act, 2012, registration vests in a proprietor absolute ownership of the land together with all attendant rights and privileges, and such title is deemed indefeasible. However, this right is not absolute in every respect; it is held subject to overriding interests under Section 28 (including customary trusts) and to any encumbrances or liabilities noted in the register. In effect, while the Act protects registered proprietors, it simultaneously recognises that interests such as customary trusts can limit that ownership. Section 28(b) echoes this by listing trusts, including customary trusts, as overriding interests on registered land. This means customary trusts are binding on registered proprietors even if not noted in the land register, and they survive registration. Overriding interests are equitable rights worth protection without necessarily being registered.
The Land Act, 2012, complements this by recognising “customary land” (private land where family members have customary rights of ownership) and “customary land rights” (rights conferred by or derived from Kenyan customary law, whether formally recognised by legislation or not). While the Land Act does not define “customary trust” expressly, these statutory definitions provide the backdrop for courts to recognise customary interests that may crystallise as trusts in appropriate cases.
Jurisprudential Development and Supreme Court Landmark Decision
For decades, Kenyan courts followed a restrictive interpretation originating from two key colonial-era cases, Obiero v. Opiyo (1972) and Esiroyo v. Esiroyo (1973), which held that customary land rights were extinguished upon registration of land. These decisions held that registration gave the proprietor “absolute ownership” free from customary claims, thereby sidelining customary trusts.
This approach prevailed in subsequent rulings, creating a legal environment unfavourable to Indigenous landholders relying on customary rights, even if those rights existed before registration.
The jurisprudential breakthrough came with the Supreme Court of Kenya’s 2018 decision in Isack M’Inanga Kiebia v Isaaya Theuri M’Lintari & another (Petition No. 10 of 2015). In a monumental judgment, the Supreme Court unequivocally rejected the earlier restrictive doctrine. It declared those old decisions were based on “faulty conceptual and contextual premises,” noting they failed to consider:
- The complex and layered nature of customary land rights,
- Provisions in the repealed Constitution protecting trust land,
- The constitutional and legislative mandate to recognise customary rights.
The Court held that a customary trust, if proven to subsist upon first registration, is an overriding interest binding on registered proprietors under Section 28 of the Registered Land Act (now mirrored in the Land Registration Act). The Court recognised that such trusts may take varied forms, including land reserved for family or clan uses such as burials or rites, and land for future family needs.
The decision further clarified that to prove a customary trust, actual physical possession or occupation of the land is not a mandatory requirement. Instead, the elements for establishing a customary trust, as laid down by the Supreme Court, include:
- The land was, before registration, family, clan, or group land.
- The claimant belongs to such a family, clan, or group,
- The claimant’s relationship to the family/clan is not remote or tenuous,
- The claimant could have been entitled to registration as owner or beneficiary but for intervening circumstances,
- The claim must be against a registered proprietor who is also a family, clan, or group member.
This test ensures claims are serious and grounded, preventing frivolous challenges.
Superior Courts’ Application
Following the Supreme Court, the Environment and Land Courts, and the Court of Appeal have recognised customary trusts as valid, overriding land interests. These courts uphold claims based on evidence of clan or family ownership structures, ancestral use, and agreements preceding formal registration.
For instance, judicial pronouncements reaffirm that:
- Customary trusts subsist as non-registrable encumbrances that bind the land,
- The registration of a land title does not extinguish such conventional interests,
To prove a land trust, one need not be in actual physical possession and occupation of the land.
Why every buyer of ancestral land must check for customary trusts
Because a customary trust can defeat a clear title, a buyer who only relies on a search and title deed may face post-purchase claims by family or clan members. If a court finds a customary trust, the buyer’s title can be qualified, subdivided, or subjected to orders in favour of beneficiaries. This risk is heightened where the land is ancestral, has a homestead, family graves, long-term family occupation, or unresolved succession. The LRA puts buyers on constructive notice of overriding interests, and Kiebia makes clear that occupation is not essential, so “no one living there” is not a safe answer. Additionally, the Supreme Court in Dina Management and Torino Cases emphasised that bona fide purchasers bear the responsibility of verifying the validity and legality of the property titles they acquire. The prospective purchaser has the onus of conducting an intense and holistic due diligence before making a purchase.
For any potential buyer of ancestral land in Kenya, understanding and verifying the existence of customary trusts is paramount because:
- Customary trusts constitute overriding interests that bind the land regardless of registration status. A buyer acquiring land registered in an individual’s name may still be subject to the claims and obligations of the customary trust.
- A sale or transfer made disregarding the trust beneficiaries’ rights may be vulnerable to being declared void or challenged in court.
- Failure to secure the consents of all trust beneficiaries could nullify a transaction, exposing a buyer to legal disputes and financial losses.
- Customary trusts protect communal and intergenerational rights, emphasising cultural heritage and social equity, which demand respect even in modern property transactions.
Buyers must therefore conduct due diligence, which includes inquiries about any customary trust encumbering the land, obtaining all required consents, and seeking legal assurance that the land is free from such claims.
Conclusion
The doctrine of customary trusts in Kenya is a powerful equitable tool that protects beneficial interests rooted in customary law. For buyers, especially of ancestral land, ignoring this doctrine can lead to costly legal battles and loss of property. Legal due diligence, community engagement, and professional advice are indispensable safeguards.
If you’re navigating a land transaction or succession dispute, especially involving ancestral land, ensure your legal team is well-versed in customary trust jurisprudence and property law compliance.
Why Work with Njaga & Co. Advocates LLP
At Njaga & Co. Advocates LLP’s Property & Real Estate Law, we understand that land transactions in Kenya, whether purchasing ancestral land, leasing property, or acquiring an apartment, demand more than a simple title search. Our team offers bespoke, in-depth historical due diligence that uncovers hidden risks such as customary trusts, unresolved succession issues, or encumbrances that may compromise your investment.
We go beyond routine checks by tracing the ownership history, engaging local registries, and examining both statutory and customary factors that could affect your rights. We also pride ourselves on drafting and reviewing airtight sale agreements tailored to protect your interests in every transaction.
Whether you are a local buyer, a member of the diaspora, or a foreign investor, we are your trusted legal partner for every real estate and conveyancing engagement in Kenya. Our mission is to give you peace of mind, knowing that your investment is fully protected under Kenyan law.
Secure your investment with confidence. Contact us today for trusted legal support in all your property, real estate, and conveyancing needs.
Disclaimer: This article is for informational purposes only and does not constitute legal advice. Consult a qualified advocate for personalized legal guidance.
