Land has always been a crucial factor in African Societies. Crop growing communities needed it for farming while pastoralists needed it for pasture. The concept of individual land ownership was alien to many African Societies as Land was communally held. That is, until Europeans came.
Registration of land intruded with the communal ownership of land. Contrary to community land ownership that existed before, laws such as the Registered Land Act and Registration of Titles Act gave individuals absolute ownership of land upon registration. Section 30 of the Registered Land Act however did provide for overriding interests that could affect title to land without (the interests) being themselves entered in the register. The question has been whether trusts formed by customary land rights fit under this provision.
Extinction of Customary Law rights
Enter Obiero v. Opiyo (1972) E.A 227. The Court in this case held that that registration extinguished customary rights to land, saying:
“…Section 28 of the Registered Land Act confers upon a registered proprietor a title ‘free from all other interests and claims whatsoever,’ subject to the leases, charges and encumbrances shown in the register and such overriding interests as are not required to be noted in the register…..Rights arising under customary law are not among the interests listed in s. 30 of the Act as overriding interests. Had the legislature intended that the rights of a registered proprietor were to be subject to the rights of any person under customary law, nothing could have been easier than for it to say so.”
A year later, Kneller J in Esiroyo v. Esiroyo (1973) E.A 388 affirmed this way of thinking saying:
“The matter (claim of interest in registered land) is taken out of the purview of customary law by the provisions of the Registered Land Act. …The rights of the defendant under customary law have been extinguished.”
The Supreme Court Intervention
These two cases formed the basis of court decisions for years. This year, however, the Supreme Court in Isack M’inanga Kiebia v Isaaya Theuri M’lintari & another  eKLR sought to set the record straight. The Court argued that the cases were based on a wrong interpretation of the law.
“It is therefore our view that, the decisions in Obiero v. Opiyo, and Esiroyo v. Esiroyo; were based on faulty conceptual and contextual premises. Faulty conceptually because, they did not take into account the complex nature of customary rights to land, and faulty contextually because, in interpreting Sections 27, 28 and 30 of the Registered Land Act, the courts paid little or no attention to the relevant provisions of the retired Constitution regarding trust land…Flowing from this analysis, we now declare that a customary trust, as long as the same can be proved to subsist, upon a first registration, is one of the trusts to which a registered proprietor, is subject under the proviso to Section 28 of the Registered Land Act.”
The court went ahead the list the conditions for a person claiming rights under customary law had to fulfill:
“Some of the elements that would qualify a claimant as a trustee are:
- 1.The land in question was before registration, family, clan or group land;
- 2.The claimant belongs to such family, clan, or group;
- 3.The relationship of the claimant to such family, clan or group is not so remote or tenuous as to make his/her claim idle or adventurous;
- 4.The claimant could have been entitled to be registered as an owner or other beneficiary of the land but for some intervening circumstances; and
- 5.The claim is directed against the registered proprietor who is a member of the family, clan or group.”
The court noted that the Land registration Act of 2012 now expressly recognizes trusts based on customary rights. This should therefore put to rest the debate that Obiero v Opiyo started.
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