A Supreme Court judgement has given a second chance to people who have lost land to relatives who were holding it in trust to reclaim it. For many years, the practice has been that for one to get a piece of ancestral land, they had to prove that they had actually lived on it for some time or possessed communal land.
Claiming ancestral land, especially for those who have been away for a long time, has been difficult, with courts over time holding that customary law rights are extinguished upon registration of land in an individual’s name.
This has seen people dispossessed of their land by relatives who argue that they have been away for long periods and do not, therefore, deserve a share of it. Under a judicial dogma referred as ‘Bennett doctrine’, many lost their ancestral land because they neither lived nor held ownership documents for the parcels.
The ideology that has haunted many Kenyans for decades emanates from Mr Kenneth Bennett, the first judge, in 1972, to make a pronouncement that customary law could not supersede the right of a person who had a registered title, even if it is a clan or communal land. But the Supreme Court, in a decision that gives a chance to those who want to claim ancestral land left for them under a person’s care, has declared that one will be required to prove that a trust existed even if they did not live or even possess the same.
The decision was delivered last Friday by Chief Justice David Maraga and justices Mohamed Ibrahim, Jackton Ojwang, Smokin Wanjala and Njoki Ndung’u. The judges ruled that one will now, among other things, need to prove that the land he or she wants a share of is family, clan or group land. They will equally have to prove that they belong to such a family, group or clan and could have been entitled to be registered as an owner or a beneficiary but due to circumstances such as age and immigration they were not.
The claim will be directed to the registered person who is also a member of the group, family or clan. However, the court will not entertain cases derived from distant or questionable family ties.
Good news for people deprived of land by kin: Supreme Court has opened doors for those denied land by their relatives to reclaim it. https://t.co/jlmpRzCApG
— Breaking News (@News_Kenya) October 8, 2018
35 families demand Sh1.6bn land compensation: NYERI, Kenya Oct 8 – Thirty five families of the late senior Chief Wambugu Mathangani on Monday held peaceful demonstrations demanding the National – Keny.. https://t.co/bZRNjY0VEx
— Breaking News (@News_Kenya) October 8, 2018