Dad gave us land verbally, is that legally binding?
There are a few scenarios in law that you and your father, alongside siblings, can take to resolve the imagined or anticipated problem.
Hi Wakili
My father gave us a piece of land verbally. We are five brothers. I wish to develop the land but I am unsure since there are no documents showing the property belongs to me. Is his word binding or should I ask him to formalise the allotment? How do I handle this issue without upsetting my father? I wouldn’t want him to think I mistrust him or my siblings.
Dear concerned brother,
This conversation begins with Guru Nanak’s quote “if one of the brothers, being able, to maintain himself by his own occupation, does not desire a share of the family property, he may be made separate, by the others receiving a trifle out of his share to live upon.” This doesn’t reflect the case for you.
Speculatively, your concerns seem to be informed by certain fear, likely to originate from your father or brothers’ reaction if you went ahead to develop the said piece of land. This is good intuition. Five is a big number if we are talking about a piece of land in Kenya of an average lucky family, since most people own no land at all. The Law of Succession Act Cap 160 of the laws of Kenya, was formed and funded on the assumption that property will only cause differences when the Bonafide owner is long gone and buried. It did not anticipate a scenario where people squabble over it, while the owner is still living, even when it is obvious that their state of health is headed in no better direction than death.
There are a few scenarios in law that you and your father, alongside siblings, can take to resolve the imagined or anticipated problem. Let us remember the ugly stories we read in the dailies regarding land and property quarrels. Death, maimed persons, injured, and sometimes beyond repair relationships. If your father decides to share out his land while alive, he must officialise the same with relevant laws and authorities.
This gives room to the beneficiaries to individually engage and commence actions of ownership and opportunities to utilise the property in an equally responsive manner. It should be a matter of fact that your sisters, if any are entitled to share their father’s land, as provided for at Article 40 (1), of the Constitution, that every person has a right, either individually or in association with, to acquire and own property (a) of any description and (b) in any part of Kenya and 40 (2) prohibits parliament from enacting any law that allows the government or any individual to (a) …“deprive a person of property of any description or of any interest in, or right over, any property of any description or (b) …to limit or in any way restrict the enjoyment of any right under this Article on the basis of any of the grounds specified or contemplated in Article 27(4).”
To actualise the afore-described scenario, your father may have to invoke the instructions within the Land Registration Act at Section 24 (a), stating that “the registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto.
This is given some finality at Section 26 (1), which provides that a certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except where there is suspected fraud and illegitimate acquisition of the certificate.
Since your dad is alive, and in the absence of him bestowing his land between his dependents through land transfer and registration process, it can be assumed that he wished to give you a gift. In law, such a gift shared between the living is known as Gift Inter-vivos. This legal concept was given life in the matter of Re Estate of Gideon Manthi Nzioka (Deceased), where Justice Nyawmeya stated as follows “gifts inter vivos are gifts between living persons, which, for them to be effective, have to be granted by deed or an instrument in writing, or by delivery, or by way of declaration of trust by the donor, or by way of resulting trust or presumption of gifts of land by registered transfer, or by a declaration of trust in writing. In effect the court declared that gifts inter vivos must be complete for them to be valid.
As an alternative, you and your father could get into a simple business contract, where he agrees to let you use his land for a specific period of time, with a clear indication that such arrangements do not constitute interest transfer nor a gift.
Remember, should a gift be completed, it does not form part of the inheritance conversation whether with a valid will or none at all, when such matters are being executed. We conclude with Archibald Cox’s words, “through the centuries men of law have persistently been concerned with the resolution of disputes in ways that enable society to achieve its goals with minimum of force and maximum of reason.” Your options are open.
Eric Mukoya has over 17 years’ experience working in the social justice sector. He’s the executive director of Undugu Society of Kenya. Legal query? Email [email protected]
