Modernity and tradition in land inheritance

By Franco Odhiambo

With the high population growth, demand for land -- the most important natural resource-- has increased. And in equal measure, land disputes have escalated among individuals, families and communities necessitating ascertainment of land rights through land adjudication and registration.

Registration of land pushed the scramble for land to a different level with land becoming a powerful socio-economic and political tool. This in essence changed the concept of land such that owning even idle land has been considered important.

Anyone who does not own land and the necessary land ownership documents — title deed — is regarded a pauper.

The struggles amongst families on issues of property inheritance have come to the fore, among them the Kirima family saga that grabbed the public’s attention and the unfolding Samuel Wanjiru family squabbles.

Distribution of assets

As opposed to circumstances where some donate their property and assets while alive or write wills, a lot of benefactors in Kenya die intestate. This triggers disputes among the beneficiaries on division and distribution of assets of the deceased. The issue of inheritance, and particularly land inheritance, has been changing in tandem with societal changes. This has moved slowly from the traditional rules of inheritance to a more pseudo mix of modernity and tradition.

African communities are mainly patriarchal where men control the land while women enjoy rights of use. Women areapportioned a piece to cultivate to enable feeding of the immediate and extended family. Men’s principal role is acquisition and safeguarding of community land.

Gender discrimination in land use was minimal or non-existent but this has changed with the introduction of land registration, which extinguished customary law on land matters and gave the registered proprietor absolute ownership, particularly on freehold titles. The emphasis was more on land ownership rather than land use.

Dispute resolution

The Constitution, however, tends to merge both traditional land dispute resolution mechanisms with the modernity of courts and formalised systems. The country’s Constitution recognises culture as the foundation of the nation and as the cumulative civilisation of the Kenyan people and nation. It encourages the application of traditional dispute resolution mechanism in land conflicts encouraging communities to settle land disputes through recognised local community initiatives.

The Constitution also eliminates gender discrimination giving married daughters rights to their parents’ property. It is, therefore, important that whenever a matter of inheritance through succession is being determined, customary law of the claimant and defendant community should not be completely ignored and should influence the court’s award as long as judgment is fair and in tandem with natural justice.

The writer is a survey and mapping professional with Maptech Consult.