Can one who inherited land sell it?

If someone inherits land, does he hold that land on behalf of his or her children? Can one sell such land without consent from the children?

Case study: Jemutai Tanui v. Juliana Jeptepkeny & 5 Others

Issue

Whether the fact that a proprietor’s land was inherited from her father means that such a proprietor held ownership of the land in a trust situation for the benefit of her children, and could therefore not sell or transfer the land in whole or in part to third parties, without the children’s consent.

Held:

  • The plaintiff was the beneficial owner of portions of land transmitted to her via succession proceedings, in respect of her late father. Accordingly, the plaintiff was the registered owner of the suit land and as such, she had all the rights that a registered owner to the land would have. Those rights would include rights to subdivide, transfer and sell the land.
  • The plaintiff held the land subject only to leases, charges and overriding interests as recognized in section 28 of the Land Registration Act, No. 3 of 2012.
  • Where one became a proprietor through transmission, unless restrictions were placed on that transmission, there was no automatic trust arising from the transmission. For a trust to arise, the transmission would have to be one that clearly indicated that the land was bequeathed to the proprietor in trust for her children.
  • The proprietor was not bound to consult her children when she wanted to subdivide and sell her land.
  • There was no trust relationship, as concerned the land, between the proprietor and her children.
  • The application was allowed.

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