In Summary
  • The law provides a clear hierarchy of who should inherit the property of a deceased individual.

  • The spouse comes first, followed by his or her children. The parents are third in line while siblings come in fourth.

  • The Matrimonial Property Act dictates that any property accrued during a marital union belongs to the two married individuals.

  • However, anything acquired before the union is not considered matrimonial property.

Essentially, owning a title deed, a log book or a lease certificate should be enough proof that you own property. With that assumption in mind, there shouldn’t be disputes over property, but there are many other ways people can own property, even without contributing to the financial expenses of acquiring it.

For instance, simple deeds such as farming on a piece of land that your partner purchased without your financial assistance render you, though partially, an owner. As emotive as it is, property ownership will never be a black-and-white affair.

Whether you walked to work every day to buy a house or inherited hundreds of acres without lifting a finger, what you rightfully own will always spark interest and desire in others, hence the need to understand the legalities surrounding ownership. While it’s easier to bury your head in the sand and assume you solely own your property, the law begs to differ.

Ernest Muriungi, a dispute-resolution lawyer, and Miriam Mugo, a real estate lawyer, have seen it all when it comes to property cases. And as we have seen it play out in the media, these cases tend to get pretty messy when ownership is questioned.

In his practice, Muriungi has come across various cases involving property, but he admits that land disputes are the most common.

“Kenyans equate land to wealth, therefore they attach a lot of value to it,” he says, adding that the most common actors in disputes are relatives, neighbours and spouses.

Categories of property include movable ones such as cars, and immovable property such as houses and land. Dividing property among the interested parties isn’t always easy unless the deceased left a will.

“Often, people close to a property owner tend to anticipate inheritance and even invest their time and emotions in it way before the owner departs. For instance, they may take time to learn how the business is operated and try to prove their ability to run it when the owner isn’t able to. Should they not inherit the property after the owner’s demise, they may feel short-changed,” he adds.

Mugo points out that the law provides a clear hierarchy of who should inherit the property of a deceased individual.

“The spouse comes first, followed by his or her children. The parents are third in line while siblings come in fourth,” she explains.

As clear as this may seem, agreeing on who should get what becomes problematic, especially when greed comes into play. Neighbours are also likely to fight over unclear boundaries or encroachment.

“At times, multiple people may present seemingly legit title deeds for the same piece of land,” says Ernest.

In cases where one property has been sold to multiple owners, fraud is usually at play, but encroachment and boundary disputes could emanate from unclear boundary markers or malice.

Normally, landowners use cement beacons to mark boundaries, but over time, such markers disappear, especially if there is heavy animal, human or automobile traffic passing on or near the property.

In rural areas, sisal plants are significant markers of property boundaries due to their resilient nature. However, a malicious neighbour can easily uproot and replant them elsewhere, thus causing confusion and conflict.

While all property cases are complex and difficult to resolve, those involving divorcing spouses are peculiarly impassioned. After all, where deep love once existed, hatred runs deeps.

“The Matrimonial Property Act dictates that any property accrued during a marital union belongs to the two married individuals. However, anything acquired before the union is not considered matrimonial property,” says Muriungi.

In the event of a divorce, no one should walk away empty-handed. Nonetheless, dividing matrimonial property equally and without discrimination becomes a huge task, especially when societal norms and customary practices come into play.

“It’s very common for women to be denied their rights simply because many cultures do not allow women to own property,” explains Mugo.

Such beliefs and practices lead individuals to make uninformed choices when it comes to property ownership.

“Sometimes women take up loans to contribute to the purchase of matrimonial property, but due to lack of information or customary beliefs, their male partners end up omitting their names from title deeds,” she adds.

Interestingly, whether legal documents contain the names of both husband and wife or not, matrimonial property belongs to the two, even when one partner incurred financial obligations single-handedly. Non-monetary contribution is considered significant when it comes to property ownership in a marriage set-up. If a partner is able to prove that they spent their time and resources nurturing the property or they supported their partner through companionship during their journey of acquiring the property, then they earn interest in the property.

“Simple deeds such as farming a piece of land that your partner purchased without your financial assistance render you an owner, but partially,” says Muriungi.

“In the case where a second wife or husband comes into the picture, they will only be entitled to what the three acquire from the time he or she joins the family. Property acquired by the first married couple in the absence of the third, is out of limit,” explains Mugo.

While the Matrimonial Property Act offers clear guidelines for couples, marriage is at times a complex union. In the Kenyan context, “come we stay” marriages are quite common and they offer unique legal challenges, especially when they’re short-lived.

In the case where two people decide to cohabit without any legal documents or customary practices binding them as husband and wife, it can be hard to determine when exactly they stopped being in a “girlfriend-boyfriend’ relationship and graduated to marriage. The burden of proof lies with them as they are tasked to prove that they were married in the first place, given that cohabiting could mean a lot of things to different people. They might as well be good friends living together to counter the effects of a scorching economy.

In a recent divorce case, Meru Senator Mithika Linturi argued that his estranged wife, Marianne Keitany, was nothing more than a guest who never left.

In the desperation to retain property, partners entangled in ‘come we stay’ relationships will easily deny ever being married to their estranged partners or cook up creative narratives.

“A marriage certificate is the most solid document that proves the existence of a marriage, given that you can’t dissolve a union that never existed. Customary marriages are also accepted as per the Marriage Act. However, when the burden of proof rests with one partner, people will use images, videos or witnesses to prove the existence of a marital union,” explains Mugo. Still, it is harder to claim matrimonial property if the marriage is based on a “come we stay” arrangement.

Squatters have also been problematic in history. As an owner, you may have your legal documents to prove ownership, but negligence may attract squatters, who in return end up owning the property according to land laws. “If squatters occupy property for more than 12 years uninterrupted, then they can turn into owners,” says Muriungi.

He further explains that uninterrupted occupations means the owner never asked them to leave or never demanded pay or any form of compensation within the 12 years. “Land is not supposed to stay bare. It is supposed to be put to good use to generate income or produce food. Therefore leaving it bare for over 12 years amounts to negligence, which is unacceptable,” he explains.

To a homeowner, allowing friends, relatives or strangers to occupy property uninterrupted may seem kind, but such acts of benevolence eventually lead to loss of property when the ‘squatters’ apply for change of ownership.

Finally, ownership may also be questioned in cases where legal paperwork is missing. Both lawyers agree that it is common for people to exchange property without any formal writing, legal documents or the presence of a legal professional.

“In rural areas especially, property tends to exchange hands casually without paperwork. After years of passing the property down generations, it becomes almost impossible to trace the rightful owner,” says Mugo.

Muriungi agreed, adding that such scenarios often lead to endless disputes that take years to resolve. Take, for instance, a farmer decides to sell his piece of inherited land to another farmer. Their transaction may be in the form of barter trade, whereby the landowner agrees to receive a litre of milk every day for two years or is given a certain amount of farm produce.

They may or may not write down the terms of agreement and with time, the new owner will pass on the property to his or her children without any documents. Other times, the buyer may be unable to give out the agreed amount of milk or farm produce due to unavoidable circumstance, such as the death of the cow or unreliable weather patterns. Subsequently, the payment period will either be prolonged, making it harder to trace payments, or conflict will start brewing over unpaid dues. As in the case of a couple without a marriage certificate, proving ownership of such property is a difficult task.

While joint property ownership isn’t the worst case scenario, it can easily lead to legal battles if the terms are not clear.

The lawyers advice property owners to take preventive measures that draw clear lines from the onset. For instance, married couples can sign prenuptial agreements, right before settling down. A prenup dictates how property will be treated in case of separation. It also comes in quite handy when both parties have accrued property before marriage or when one party is more vulnerable than the other.

“Prenuptial agreements are legally accepted in the Kenyan constitution even though they’re not widely accepted,” says Muriungi.

Wills are also critical documents which can save entire families from endless conflict or even bloodshed. Muriungi says that drafting a will simply requires two witnesses, a lawyer and legal fees. The property owner is supposed to declare all their property and dictate who gets what in case of demise.

A will can also be revised from time to time depending on the relationship between the property owner and beneficiaries. Mugo adds that people should embrace the idea of wills, from the minute they start acquiring property, no matter how little.

“In the case where a property owner does not want property to be considered matrimonial, they can prevent their partners from contributing, monetarily or otherwise to the property,” says Mugo.

Alternatively, a property owner can appoint a trustee to hold property in trust for the rightful beneficiaries if they do not want their extended family members to engage in succession wars later on.

As she explains, holding property in trust prevents confusion and inheritance battles once the owner dies. The registration of property is also critical in preventing ownership challenges. Joint ownership is an option, but if one party contributes more than the other, there are other options.

“It is possible to register property under a Property Holding Company. Ownership will then be based on what each owner contributed. Such property will also be excluded from Matrimonial property in case of separation,” explains Mugo.

Other times, uncertainties surrounding ownership can be cleared through simple one-on-one conversations. Unfortunately conversations regarding property ownership are stigmatised observes Mugo. Raising the issue of ownership in case of separation or death is often frowned upon in many homes. However, such conversations are necessary for progressive property owners or couples.

“The law was not made for lawyers, it applies to the common people,” she says. It is therefore one’s responsibility to understand how it affects them, whether they intend to apply it or not. When an individual initiates the ownership conversation, they shouldn’t be perceived as greedy or anticipating problems in the future. They’re simply trying to prevent trouble.