Optimism is the likely remedy to reduce one's fear of constructing a retirement home in the village.
Hi Wakili
My husband wants us to build our retirement home in his village on ancestral land. He doesn’t have a title deed for the land. He wants me to contribute to this project, but I feel it is risky. Am I being unreasonable? Is that his land?
Land is recognised as a highly precious commodity in the Kenyan property infrastructure in the household and commercial contexts. It is also an extremely precarious asset. Competing shareholding interests between different people or families cause and sustain strife. Constitution’s Article 40 gives every person, individually or in association with others, the right to own property of any description anywhere in the country.
This is the foundational caution if the retirement home will be in the village. A couple that thinks of, talks about, and plans retirement is a model of a productive, fulfilling life. However, family dynamics can be messy in a legal conversation. What guarantees, guided and activated by the titleholder, will land adjudication award your husband the piece he has earmarked to construct the retirement home? Is the probability of challenging such an allocation high for a family member?
Your cautious attitude is qualified by the judgment in Omollo v Nyamunga (2025), KEELC 120 (KLR), which in paragraph 35, speaks to your fears. The original titleholder may not allocate the land to your husband. What if the succession process of the estate, if the owner is deceased, does not award your husband the targeted section for the retirement home? The judges pronounced that “...the title held by the defendant to the suit land is protected by the provisions inter alia of Article 40 of the constitution, and provisions of Sections 24, 25 and 26 of the Land Registration Act. It can only be impeached upon proof, to the required degree, of the grounds for impeachment or cancellation of title to land in law.”
Optimism is the likely remedy to reduce your fear of constructing your retirement home in the village to establish if the titleholder is alive. Dead or alive, succession must occur to allow the property to exchange hands. If alive, distribution should occur within the framework of gift inter vivos, or gifts in contemplation of death, as provided in Section 42 of the Law of Succession Act.
Justice Nyakundi in Khalifa Abdalla v. Mohamed Abdalla Khamis, and Justice Nyamweya in Estate of the Late Gideon Manthu Nzioka (Deceased) observed two gifts: Gift inter vivos and gifts made in contemplation of death. For the former, the law demands the said gift be granted by a deed, an instrument in writing, or delivery by way of a declaration of trust by the donor by way of resulting trusts or by way of registered transfer. Without such completion, the risk is higher from poor or competing family dynamics, not unless your husband is the only child. Even then, Justice Munyao’s judgement in Oganga & Another v Orangi & 3 Others KEELC 16348, invites the idea that there is no automatic inheritance even when it is ancestral land.
If the legitimate titleholder is deceased, there should be an estate succession process that is either testate or intestate. Intestate is where the deceased leaves no known will, while testate represents the presence of a will left by the estate owner to guide the distribution of wealth, assets, and belongings.
A three-judge bench of Justices Laibuta, Mativo, and Warsame, in the appeal case of Shah & another v Shah (Civil Appeal 268 of 2019), affirmed the significance of a well-written will and the limits of the court to interfere.
In paragraph 25 of their judgment, they noted, “… as siblings, none of them has any superior claim over the other in distributing the deceased’s assets among them. The trial court was not open to considering any other or further provisions made to any specific sibling out of the estate. For instance, Rupal was specifically allocated shares in Site Development Limited and a motor vehicle KAJ 500G under the Will. This was the deceased’s intention, which we cannot purport to rationalise or understand as to interfere with.”
