Understanding Customary Trusts, Family Land and the Limits of Registered Ownership in Kenya

Few land disputes in Kenya are as emotionally charged as those involving family land.

A parcel may be registered in the name of one brother, yet several members of the family may have homes on it. A parent may have been the person registered during adjudication, while children and other relatives may maintain that the land was intended to benefit the wider family.

Eventually, the registered proprietor decides to sell.

The family objects.

The purchaser asks a seemingly simple question:

“But whose name is on the title?”

The answer may not resolve the dispute.

Registration is powerful — but it is not absolute.

LAND ACTS

Under section 24 of the Land Registration Act, registration vests ownership and the rights and privileges belonging to that ownership in the registered proprietor.

However, section 25 makes the rights of a registered proprietor subject to the interests and claims recognised by law.

Most importantly, section 28 recognises certain overriding interests, including trusts, including customary trusts.

This means that an interest can, in an appropriate case, affect registered land even though it is not expressly written on the title.

What is a customary trust?

A customary trust is not simply a claim that:

“This is our ancestral land.”

The person asserting the trust must establish the legal and factual basis for it.

RECENT CASE LAWS

The Supreme Court in Isack M’Inanga Kiebia v Isaaya Theuri M’Lintari & another [2018] eKLR identified circumstances that may support a customary-trust claim, including where:

1. The land was previously family, clan or group land;
2. The claimant belongs to that family, clan or group;
3. The relationship is not remote or speculative;
4. The claimant could have been entitled to registration but for an intervening circumstance; and
5. The claim is against a registered proprietor who is himself a member of the relevant family, clan or group.

The Supreme Court also made clear that the categories of customary trust are not closed and that each case depends upon its evidence.

A recent Court of Appeal reminder

In Ciero & another v Njanja & 2 others [2025] KECA 1541 (KLR), the Court of Appeal reiterated that customary trust constitutes an overriding interest under section 28(b) of the Land Registration Act.

At the same time, the Court emphasized an equally important point:

The person alleging a trust must prove it.

A court does not simply presume a trust because the parties are related or because the land was once ancestral property.

Why this matters to Nyanza families

Across rural and peri-urban Kenya, land may have passed through generations before formal registration.

The person eventually appearing on the register may have acquired the property through:

1. Adjudication;
2. Succession;
3. Subdivision;
4. Transfer by a parent;
5. Historical family arrangements; or
6. Another registration process.

The registration may therefore be only one chapter in the property’s history.

A prospective purchaser should ask:

1. How did the seller acquire the land?
2. Who occupied it before registration?
3. Who lives there today?
4. Are there family members claiming an interest?
5. Was the land previously ancestral or clan land?

These questions can be more important than simply obtaining an official search.

The purchaser’s dilemma:

Suppose a purchaser obtains an official search showing that John is the registered proprietor.

The purchaser visits the land and discovers John’s two brothers have homes on the property and have cultivated portions of it for decades.

John says:

“They are my brothers. They are simply staying there.”

That should not be ignored.

The purchaser should investigate why they are there and whether they claim a legal or beneficial interest.

A clean search does not necessarily answer every question concerning possession, occupation, trust or other overriding interests.

THE PRACTICAL LESSONS

For landowners:

• Do not assume that registration eliminates every historical claim.

For family members:

• Do not assume that saying “ancestral land” automatically establishes a legal interest.

For purchasers:

• Do not investigate only the title. Investigate the land.

Conclusion

The safest land transaction is one in which the title, history, occupation and claimed interests all tell the same story.