I am 29 years old; my parents separated almost 20 years ago. my grandparents took me and took me through school.
I kept in touch with my father, who agreed to allocate me land for construction after school. I followed up on his promise and he cheerfully asked me to give him three years to honour his word. I didn't object to his proposal.
Unfortunately, the time is up and he has now changed tune.
I am told he bought and later sold the land he would have given me. Currently I am landless and have no place to build a house. Am I entitled to ask for a piece of land from my father?
It is challenging to seek accountability for serious land acquisition matters based on promises made by one person to another, incredibly committed in one's childhood, and within unclear circumstances only known to the promisor and promisee. Socially, a promise is qualified as a debt that needs to be paid.
It is a representation of effective and meaningful relations between and across people. Nonetheless, for such a promise to become legally binding and enforceable, a higher threshold is required to demonstrate commitment between the parties involved. It is outside the purview of this column to go through this path since legislating trust, morality, belief, compassion, love, and things like happiness is a humongous task.
To begin with, you and your father are now adults by and in-laws. While this does not reduce nor remove the father and son relationship, it trashes the discussion you guys held in your childhood. As a son to your father and as a cultural being from a specific ethnic group, you have every right that is not absolute to get a piece of land bequeathed to you by him to construct what you may consider an abode of some sort.
Going by the recent decision of the High Court in Kisii, in which Justice Munyao Sila poured cold water on the assumption that a parent's land or property extends rights of interest and ownership to their children. In his words, he states children should cease harbouring the notion that whatever belongs to their parents "automatically belongs to them."
Three assumptions that need clarity are the subject of this conversation. The judgment by Justice Sila Munyao has dealt with one. Fathers', mothers', and or parents' properties do not acquire automatic bequeathment rights to their children. The second is whether, as a child, one is entitled to their parents' properties, especially land.
Going by the High Court Decision, delivered by Justice Munyao, any property in land that parents acquire through purchase is not defined as ancestry and, therefore, only sharable if they will. No amount of law can cajole any father or mother to give such land to their children since it is wholly their property. However, a departure, which allows dialogue about the third assumption, is when should land be given to children?
When parents are alive and wish to avoid the drama that often emerges and drains families upon their demise, they will distribute and officially transfer their property to those considered heirs in their wisdom. This kind of distribution is squarely a decision and prerogative of the property holder.
This arrangement may apply to Article 27 of the Constitution, where every child is not discriminated against. The other time will be when the specific parent dies, and the estate is shared. Through a court of law, estate distribution will be carried out through the Law of Succession Act, which provides for intestate and testate estate management processes.
Where there is a will that is not contested, your father would likely have allocated you some piece of land for your building. If such a will is missing, the court, through issuing a grant of letters of administration intestate, will provide a formula to acquire your piece of land. In particular, the Law of Succession Act will identify the dependants of your father as provided for in section 29.
Remember, the law only remedies what is seen as unkempt relationships, dealings, and positions, especially where parties feel disenfranchised. It is an instrument to establish, sustain, resew, and reform order to serve all people equally or equitably.
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]
