Succession to Registered Land in the African Areas of Kenya
| Published date | 01 January 1963 |
| Date | 01 January 1963 |
| DOI | http://doi.org/10.1002/j.1099-162X.1963.tb00598.x |
Succession
to
Registered
Land in
the
African
Areas
of
Kenya
by F. D.
HOMAN
Secretary, Trust Land Board,
Kenya
SOME
of
the
problems of
inheritance
in
the
Kenya
land
units were discussed in
an
article published in
the
].A.A.
four years
ago'.
The
Working
Party
on African
Land
Tenure,
1957-58, in
Chapter
IX
of its
report
recommended a system
which
was designed to achieve
the
aims of
land
policy in
Kenya
whilst
at
the
same
time
being acceptable to
the
people them-
selves.
The
most
important
of these aims were,
and
still
are:-
(a) to
prevent
re-fragmentation which will inevitably
occur
ifland
is divided
amongst
all the heirs
under
customary law;
(b) to avoid having so
many
co-proprietors on
the
register
that
the
land
ceases to be a negotiable asset
and
becomes undeveloped or underdeveloped;
and
(c) to ensure
that
all
the
heirs
under
customary law
are
fairly
treated
even if
they
do
not
receive ashare
of
the
land.
Registration
of
transmissions
The
recommendations of
the
Working
Party,
which were
adopted
by
the
Government, were
that
the
number
of
co-proprietors should
not
exceed five,
heirs should be
determined
by customary law, subdivision (including sub-
division on inheritance) should
require
the
consent
of
adivisional
land
control
board
and
that
the
provincial
land
control boards, after consultation
with
divisional boards, could
lay
down
minimum
sizes for subdivision according to
the
different ecological zones.
The
procedure
for registering atransmission which is governed by Section 79
of
the
Land
Registration (Special Areas)
Ordinance,
1959, is briefly as follows:-
(a) on receipt
of
notification
of
the
death
of
aregistered landowner,
the
assistant
land
registrar applies to
the
African
court
for a certificate
of
succession:
(b)
the
African
court
determines the heirs according to customary law having
called
any
witnesses or
other
evidence it
may
require,
and
sends to
the
assistant
land
registrar acertificate showing
the
heirs
and
their entitlements;
(c)
if
the
number
of
co-owners does
not
exceed five
and
no subdivision is
involved,
the
assistant
land
registrar, after waiting 30 days for
an
appeal
to be
lodged against
the
court's
award,
registers
the
transmission;
(d)
if
asubdivision is involved
the
registrar
must
refer
the
matter
to
the
divisional
land
control
board;
(e)
if
the
number
of
co-owners exceeds five, or
if
the
divisional
board
refuses
its consent,
the
registrar
may
not
register
the
transmission
but
must
refer it back
to
the
African
court
for
adjustment.
There
is
nothing
wrong
with
this system in theory,
but
in practice it does
not
seem to be working properly.
In
both
the
Kiambu
and
Nyeri Districts over
the
1
Inheritance
in the
Kenya
Native
Land
Units by F. D.
Homan
-
J.A.A.,
July
1958.
49
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