It is only valid if;
- Made before 2 or more competent witnesses;
- The maker dies within 3 months of making it;
- An oral will made by a member of the armed forces during a period of active service shall be valid if the maker of the will dies during the same period of active service even if he/she dies more than 3 months after making the will;
- If there is any conflict in evidence of witnesses as to what was said by the deceased in making an oral will, the oral will shall not be valid except if the contents can be proved by a competent independent witness.
A written will must have the following characteristics:
- It must be signed by the maker.
- Incase its signed by somebody other than the maker, then this should be done in the presence of the maker and under his/her directions.
- It must me witnessed by two or more witnesses and these witnesses MUST NOT be beneficiaries in the will otherwise there shall be need of an additional two witnesses.
- If the maker of the will refers to another document in his will, the document shall be considered as part of the will as long as it is verified that it is the exact same document the maker was referring to in his/her will.
- An executor shall not be disqualified as a witness to prove execution of the will or to prove the validity or invalidity of the will.
- If the dependent or dependents feel that the deceased’s will does not provide adequately for their needs, they may make an application to the Court.
- The Court may order a specific share of the property be given to the dependent (s) or periodical payments or lump sum payment.
- The wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased before his death.
- The deceased’s parent, step parents, grand-parents, grandchildren, step- children, children whom the deceased had taken into his family as his own,
- Brother and sisters, and half -brothers and half-sisters, who were being maintained by the deceased before his death.
- Where the deceased is a woman, her husband if he was being maintained by her before her death.
A will can be revoked, altered and revived only by the maker at the time when he is competent to dispose of his property. This can only happen when the maker takes some action to indicate that he/she no longer wants the will to be binding. For this to be effective, the intent of the maker, whether express or implied must be clear and an act of revocation consistent with this intent must take place
This is when there is no will left by the deceased (intestate). In case the deceased left one surviving spouse and a child or children, the surviving spouse shall be entitled to:
- The personal and household effects of the deceased
- The intestate property but cannot sell this intestate property as the spouse is holding it on behalf of the children. If the spouse remarries, he/she loses his/her entitlement to the intestate property. Where the deceased has left a surviving child or children but no spouse, the intestate property will be transferred to the surviving child or divided equally among the surviving children. Where the deceased left no surviving spouse or children, the intestate shall be transferred in this order of priority: • Father; or if dead, • Mother; or if dead • Brothers and sisters, and any child or children of deceased brothers and sisters, in equal shares; or if none
- Half -brothers and half-sisters, and any child or children of deceased half-brothers and half-sisters, in equal shares; or if none
- Distant relatives up to the sixth degree in equal shares. If the deceased is not survived by any of the above, then the intestate property estate shall be taken up by the state.
Section 40 of the Constitution of Kenya stipulates that every person has right to own land of any description in any part of Kenya. The National Land policy 1.5.1 (7), (c), (d) put more emphasis on gender equity and land rights.
We mean women should not only have access to land as the right but also enter upon and use land, exercise control over land as one’s ability to make decisions with regard to the land. These include the ability to:
- determine the size of land used for farming activities and whether the land will be used for food or cash crop production.
- transfer land titles, whether by sale or inheritance (land ownership)
Matrimonial Property Act of (2013) the matrimonial property act provides that married women has the same rights as married man to acquire, administer, hold, control, use and dispose of property whether movable or immovable; enter into contract and sue and be sued in her own name.
It means any property that is owned or leased by one or both spouses and occupied or utilized by the spouses as their family home, and includes any other attached property
The husband or wife may acquire beneficial interests that are equal to the amount of contribution made by the spouse.
Any liability incurred by a spouse before the marriage and relating to the property shall, after marriage, remain the liability of the spouse who incurred it. If the property becomes matrimonial then it shall be equally shared by the spouses and unless they otherwise agreed. The law states that parties to marriage shall equally share the liability incurred during the subsistence of the marriage for the benefit of the marriage or reasonable and justifiable expenses incurred for the benefit of marriage.
The spouse will not only share benefit but liabilities on the matrimonial property.
- Women have a right to acquire and own land whether individually or as a group.
- Daughters have the right to inherit their parents’ land and property.
- Women have a right to be elected and or appointed into land governance institutions.
- Married women have the right to joint ownership of land and property acquired during marriage.
- Married women have the right to transact on land in consultation with their husbands and vice versa.
- Widows have the right to inherit their deceased husband’s land and property.
A ‘child” means an individual who has not attained the age of eighteen years in Kenya. Generally, children cannot own land or property in their own right as children. However, land and property can be held on trust for their benefit and use
Orphans have the right to access and use their parents land and property whether or not it is held in trust by an appointed and responsible adult member of the immediate family. Upon reaching the age of 18, they have the right to be registered as the rightful owners of land and the properties previously held by their deceased parents.
The constitution of Kenya defines an ‘adult’ as an individual who has attained the age of eighteen years. For the purpose of determining rights accruing to the youth, there is need to appreciate that the constitution regards youths as adults and thus;
- Each youth has the right to ownership, access and control of land and property.
- Though the right to inherit from their parents is discretionary, in the event of inheritance by the siblings, both daughters and sons have equal rights.
The Constitution defines a “marginalised community” as ;
- A community that, because of its relatively small population or for any other reason, has been unable to fully participate in the integrated social and economic life of Kenya as a whole; or
- A traditional community that, out of a need or desire to preserve its unique culture and identity from assimilation, has remained outside the integrated social and economic life of Kenya as a whole; or
- An indigenous community that has retained and maintained a traditional lifestyle and livelihood based on a hunter or gatherer economy; or
- Pastoral persons and communities, whether they are nomadic or a settled community that, because of its relative geographic isolation, has experienced only marginal participation in the integrated social and economic life of Kenya as a whole.
The Constitution defines a “marginalized group” as a group of people who, because of laws or practices before, on, or after the effective date, were or are disadvantaged by discrimination on one or more of the following grounds; including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.
- Right to participate in economic activities in the country
- Right to preserve their cultural way of life in line with article 11 of the Constitution
- Right to representation in land governance institutions and participation in land related decision making processes.
- Right of access to the shore lines of lakes and rivers and public fish landing sites for fishing communities to enable them carry out their economic activities
- Right of access to community forests for hunter gatherers communities to sustain their livelihoods.
- Right of access to communally held land for grazing purposes for the Pastoral communities
All prescribed forms under the Land Registration Act, 2012 can be downloaded from the Ministry’s website under the “Resources” tab.
The existing encumbrances against the title shall automatically be migrated to the new register.
No, the conversion process does not involve changes in ownership.
Title documents held by third parties including banks, hospitals, courts etc. shall ONLY be replaced on the application by a proprietor. The proprietor will thus have to liaise with the third party to facilitate the replacement process.
Gazette Notice on conversion, publication of the cadastral maps together with a conversion list in daily newspapers, Cabinet Secretary’s specification of date for commencement of transactions or dealings within the registration unit and replacement notices in newspapers and radio announcements.
The law requires a registrar to resolve the complaints submitted within 90 days. A complainant can also apply to the registrar in Form LRA 67 for registration of a caution pending the clarification or resolution of any complaint.
The complaint is submitted in writing to the registrar in Form LRA 96 in respect of information contained in the conversion list and the cadastral maps.
The conversion process does not affect ownership. Your title shall be replaced with a title under the Land Registration Act, 2012. In any case the replaced (old) title will be placed under safe custody by the registrar.
The survey maps will be made available to you on request.
No. Deed plans shall be replaced by RIMs (Registry Index Maps) as registration instruments. Boundaries will thus not be affected because RIMs are generated from existing survey plans.
It is absolutely free
A land owner will be required to present an application to the Registrar in Form 97 and attach thereto the original title and copies of their identification documents.
The date is captured in the Gazette Notice No. 11348 of December 31, 2020. It is also indicated in an advert appearing in the MyGov pullout of The Star of 12th January, 2021. This is in respect of parcels within Nairobi City County. The Ministry aims to complete the migration process in the entire Country by December, 2022.
It entails the following: (i) Preparation of cadastral maps together with a conversion list, (ii) Publication of the cadastral maps together with a conversion list, (iii) Lodgment and consideration of complaints, (iv) Closure of old registers and commencement of transactions in the new register (v) Application for replacement of title documents from the old registers.
Conversion is the process of migrating all parcels from the repealed land registration statutes to a unitary regime under the Land Registration Act, 2012.