Q .If a person holds a valid Title deed for ancestral land, can they freely sell it—and can you safely buy it?

A. Yes, but not without navigating the unwritten laws of tradition and the invisible hands of Customary Trust.

Ancestral land refers to land that has been occupied by persons who share the same ancestry for a long time and has been passed down from generation to generation. It is grounded in the principle of intergenerational equity, where land is preserved for the benefit and use of future generations. This position was confirmed in the case of Mbui Mukangu v Gerald Mutwiri Mbui [2004] eKLR, where the Court of Appeal traced the devolution of the suit property through successive generations and ultimately recognized its ancestral character. The court observed:

“…the land registered in the name of Mbui was ancestral land that devolved to him on the death of his father. It was unregistered land held under custom but the tenure changed during the land consolidation process and subsequent registration under the Registered Land Act. It is a concept of intergenerational equity where the land is held by one generation for the benefit of succeeding generations…”

While the term “ancestral land” is not expressly defined in Kenyan law, the Constitution of Kenya (2010) implicitly recognizes it as a subset of community land in article 63(2)(d)(ii).

“63(2) Community land consists of— (d) land that is— (ii) ancestral lands and lands traditionally occupied by hunter-gatherer communities;”

This means ancestral land exhibits some features of community land, such as a common ethnicity and ancestry among occupants, and shared geographical and ecological spaces.

Kenyan courts have been reluctant to adopt a rigid legal definition of ancestral land, opting instead to address it on a case-by-case basis as ancestral land is managed under different customary laws. The courts in determining whether land qualifies as ancestral have often relied on historical evidence.  

They consider:

• The manner of acquisition of the land and when it was acquired. If the land was acquired recently and through a purchase, it is less likely to qualify as ancestral land even if it has been passed to a few generations.
• Continuous occupation by one lineage over generations.
• Family burials or sacred cultural landmarks on the land.
• Succession patterns.

Notably, most ancestral land remains unregistered. Even where the land is registered, the title does not equate to unfettered ownership. The land may still be subject to unrecorded interests that may override the Title. One of these overriding interests are known as customary trusts and is provided for in Section 28 of the Land Registration Act.

“Unless the contrary is expressed in the register, all registered land shall be subject to the following overriding interests as may for the time being subsist and affect the same, without their being noted on the register …28(b) trusts including customary trusts.

Customary trust in relation to ancestral land is a legal principle where land is held by an individualfor the benefit of the holder and other, typically family members. This trust is not always recorded on the title, but it is legally recognized. It protects the land for present and future generations thus giving effect to the principle of intergenerational equity.

In the landmark decision of Isack M’inanga Kiebia v Isaaya Theuri M’Lintari [2018], the Supreme Court affirmed the validity of Customary Trusts as overriding interests. The Court ruled that even a registered proprietor cannot dispose of ancestral land without the consent of those with a legitimate claim under customary trust and that the claimant need not be in actual possession or occupation. What is of importance is the nature of the holding and the intention of the parties. If the said holding is for the benefit of other members of the family, then a customary trust would be presumed to have been created in favour of such other members, whether or not they are in possession or actual occupation of the land.

The Supreme Court went further to give 5 elements that one has to prove to claim customary trust successfully.

1. That the land in question was before registration, a family, clan, or group land
2. That the claimant belongs to such family, clan, or group.
3. That the relationship of the claimant to such family, clan or group is not so remote or tenuous as to make his/her claim idle or adventurous.
4. That the claimant could have been entitled to be registered as an owner or other beneficiary of the land but for some intervening circumstances.
5. That the claim is directed against the registered proprietor who is a member of the family, clan or group.

So, before proceeding with the purchase of any ancestral land, first obtain consent from persons likely to claim customary trust. Think of cousins,uncles ,siblings of the title holder, and secure written consent from them. Also, do a background search to find out whether there are any unresolved land disputes between the family members .This information can be given by the elders and community members. Any unresolved dispute may lead to witheld consent from some members who may later claim customary trusts.

In conclusion, while the law allows you to buy ancestral land in Kenya, you must understand that ownership under the law may still be subject to ownership under custom. A title deed may give you formal rights, but if you ignore the cultural and familial interests attached to that land, you risk buying into a voidable transaction and prolonged legal disputes.

In the realm of ancestral land, a title is only part of the story. True ownership lies in balancing legal rights with customary obligations—because in these cases, what’s yours in title may still be theirs in custom.