The Title Is in My Brother’s Name: How Kenyans Abroad Recover Land Bought Through Family

In short, land you paid for which is registered in a relative’s name is, on the face of the register, the relative’s land. But the law recognises a trust in your favour where you supplied the money, a trust is an overriding interest which registration does not extinguish, and the Environment and Land Court declares such trusts and orders the land transferred where the money trail is proved. The first move is a caution on the title so the land stops moving while you act. This article sets out the law, the evidence which decides these cases, the sequence we follow from abroad, what happens if the land has already been sold, and how to hold land in Kenya so this never happens to you.

The situation you are in

You have lived in Houston or Leeds or Brisbane for fifteen years. Over those years you sent money home, in tranches, to a brother, a cousin, an uncle or a parent, to buy a plot in Ruiru or Kitengela or in the village, and because you were not in Kenya and had no identity card to hand or simply trusted them, the title was registered in their name. It was always understood the land was yours. Now something has changed. The relative has stopped answering, or has started building, or has taken a loan against the land, or you have heard from a neighbour it has been sold. You are asking whether the land is yours, and what you are able to do about it from where you sit.

You are not alone, and the numbers say so. The National Crime Research Centre’s survey of land crime found family members named as perpetrators in 39.7 percent of cases, almost level with professional brokers and well ahead of government officials. It is the most common way a Kenyan abroad loses land, and it is the one nobody writes about because nobody wants to say it aloud.

What the register says, and what the law says

Start with the hard part. Under the Land Registration Act, 2012 the registered proprietor holds the land, and under section 26 the certificate of title is conclusive evidence of the proprietor’s ownership, save for fraud, misrepresentation, illegality or a corrupt scheme. A relative who is registered as proprietor is able to sell, charge and lease the land, and a buyer or bank dealing with him is entitled to rely on the register. Being family, on its own, gives you nothing, and the Environment and Land Court has said so repeatedly to relatives who arrived with nothing but a family tree.

Now the part which helps you. Section 28 of the same Act lists the overriding interests which bind registered land whether or not they appear on the title, and the list includes trusts, including customary trusts. Where one person provides the purchase money and the land is registered in another’s name, equity presumes the registered owner holds the land on a resulting trust for the person who paid, unless it is shown the money was a gift. Where the registered owner took the land on an understanding it was yours and now denies it, the court imposes a constructive trust, because it would be unconscionable for him to keep it. The Supreme Court confirmed in Isack M’Inanga Kiebia v Isaaya Theuri M’Lintari and another in 2018 how a trust of this kind survives registration and binds the proprietor, and the Environment and Land Court applies the principle to money sent from abroad in the same way it applies it to land bought by a parent for a child or by a family for one of its members.

So the land is yours in equity if you paid for it, and the court will say so. But equity is proved, not presumed from the relationship, and the case is won or lost on the money trail.

The evidence which decides these cases

The court is asking one question. Did you pay for this land, and was it understood you were buying it for yourself. Everything you gather goes to answering it.

1. The money. Bank transfer records, remittance receipts from Western Union, WorldRemit, Wise or Sendwave, and M-Pesa statements from the relative’s side if you are able to get them, matched by date and amount to the price and the instalments in the sale agreement. Narrations which say what the money was for are worth a great deal. Money sent as general support, with nothing to tie it to the land, is the weakest position.
2. The sale agreement and the seller. The agreement under which the relative bought, the receipts the seller issued, and where possible a statement from the seller or his advocate about who paid. Sellers remember who paid them.
3. The words. WhatsApp messages, e-mails, voice notes and letters in which the relative acknowledges the land is yours, reports on the purchase, asks for the next instalment or thanks you. An admission in writing is the single most valuable document in the file, and most families have dozens of them.
4. The conduct since. Who has paid the land rates, who paid for the fence, the survey or the building, who holds the original title, whose name is on the plans. Conduct consistent with ownership on your side, and with stewardship on his, is strong corroboration.
5. The witnesses. Family members, elders and neighbours who knew the arrangement. Their evidence is useful, but it is never enough on its own, and a case built on witnesses alone against a registered title usually fails.

Gather all of this before you say a word to the relative. The moment he knows you are acting, messages get deleted and the land gets moved.

The sequence, from abroad

1. Official search. The first thing we do is search the title, so we know today whether the land is still in the relative’s name, whether a bank has a charge over it and whether anyone else has already lodged a claim. Everything else depends on what the search shows.
2. Caution. Section 71 of the Land Registration Act allows any person claiming an interest in land to lodge a caution with the registrar forbidding the registration of dealings in it. We lodge one immediately on your behalf, supported by a statutory declaration setting out your claim. The registrar notifies the proprietor, and from the day it is entered no transfer or charge registers over the land while the caution stands. It costs little, it takes days, and it is the single most important step in the whole process, because it turns a race you are losing into a dispute you are able to win.
3. Power of attorney. You sign a specific power of attorney before the Kenyan mission nearest you, so we are able to swear documents, instruct counsel and appear for you without your travelling. Our article on buying land from abroad explains how this is done in each country.
4. Demand. A letter to the relative setting out the claim, the evidence and the remedy sought, which is the transfer of the land into your name at his cost within a stated period. A surprising number of these matters end here, because the relative learns the money trail is documented and the land is cautioned, and the family finds a settlement it was unable to find before. Where it settles, we draw the transfer and register it, and the caution comes off.
5. Suit. Where it does not settle, we file in the Environment and Land Court for a declaration the relative holds the land in trust for you, an order for him to transfer it, and an injunction restraining any dealing in the meantime. The court is able to order the registrar to effect the transfer if he refuses to sign. These cases take time, commonly two to three years to judgment in Nairobi, and the caution and injunction are what protect the land while they run.
6. The criminal route, where it fits. Where the relative took money for land he never bought, or sold your land and kept the proceeds, the Penal Code offences of obtaining by false pretences and stealing by an agent apply, and a complaint to the Directorate of Criminal Investigations runs alongside the civil claim. It is a lever, not a substitute. The criminal court is able to jail him. Only the civil court gives you the land or the money.

If the land has already been sold or charged

This is the case the caution exists to prevent, and it is why speed matters more than certainty at the start. Where the relative has sold to a buyer who paid full value, knew nothing of your claim and is now registered, section 26 protects the buyer, and your claim against the land is generally lost. Your claim becomes a claim against the relative for the money, the proceeds of sale and the profit he made, and it is pursued in the same court with the same evidence. Where the buyer knew of your interest, or the sale bears the marks of fraud, a price far below value, a sale to another relative, a transfer hurried through in the weeks after you first asked questions, the trust binds the buyer and the land is recoverable. Where a bank holds a charge, the bank’s security ordinarily stands, and the land comes to you subject to it or the loan is settled from the proceeds.

On time, the Limitation of Actions Act does not bar a beneficiary’s claim to recover trust property still in the trustee’s hands, so a relative who still holds your land is not able to say you waited too long. But delay is how evidence disappears and how land gets sold, and a claim which sat for a decade is far harder to prove than one brought the year the trouble began.

When it is family land, not your land

A different question arrives in the same inbox. My father is selling the family land, or my brother has taken the whole of it after our mother died. Here the land was never bought with your money, and the answer turns on whose name is on the title and whether they are alive. A living parent registered as proprietor is able to sell his land, and the children’s remedy is limited to proving a customary trust, meaning the land was held for the family and not for him alone, which the Supreme Court in Kiebia confirmed is possible but which demands evidence of the land’s history before registration. Where the parent has died, nobody sells until a grant of representation is confirmed and the land is transmitted, and a relative who deals with it before then is intermeddling under the Law of Succession Act and the transaction is void. In either case the caution is again the first step, and the succession court rather than a purchase file is where the matter is decided.

How to hold land in Kenya so this never happens

Every case in this article was avoidable, and the way to avoid it costs almost nothing. Buy in your own name, through an advocate acting under a specific power of attorney, with the money paid into the advocate’s client account and never through a relative’s account. If for some reason the land must be held by someone else, have a declaration of trust drawn and signed on the day of purchase, stating whose money it was and for whom the land is held, and lodge a caution in your own name the same week. Keep the original title with your advocate, not with the family. And for land you already own, whoever manages it, have an official search run every quarter and a caution or restriction registered in your favour, so any attempt to deal with the land is stopped at the registry rather than discovered from a neighbour. We provide this as a standing service for owners abroad, with a quarterly search on every parcel, custody of the documents and an annual written position report.

Questions we are asked every week

I sent my cousin money to buy land for me and the title is in his name. Is the land mine?

In equity, yes, if you are able to prove the money was yours and the purchase was for you. On the register, it is his until a court says otherwise or he transfers it. Lodge a caution first and gather the money trail.

Is it possible to stop my brother selling the land while I am abroad?

Yes. A caution under section 71 of the Land Registration Act stops any transfer or charge registering. It is lodged by your advocate under a power of attorney and takes days.

What if there is nothing in writing?

The case is harder, not hopeless. Remittance records matched to the price, the seller’s evidence of who paid, and the relative’s own messages usually exist even where no agreement was signed.

He has already sold it. What now?

If the buyer was innocent and paid full value, the land is usually gone and the claim is for the money and the proceeds. If the buyer knew, or the sale is suspicious, the land is recoverable. Both are decided in the Environment and Land Court on the same evidence.

Is it too late after ten years?

A claim to recover trust land still held by the relative is not time barred. Evidence fades, though, and land gets sold, so act now.

Should I report him to the police?

Where money was taken for land never bought, or your land was sold and the proceeds kept, yes, alongside the civil claim. On its own a criminal complaint does not return the land.

What does this cost?

The first stage, the search, the caution, the power of attorney and the demand, is quoted as a fixed fee on the facts you send us. Litigation is estimated separately once we have seen the evidence, and we tell you before filing whether the case is worth bringing.

Next step

Send us the parcel number if you have it, the relative’s full name, and whatever records of the money you are able to find, by e-mail to peter@pmlaw.co.ke or WhatsApp through +254 714 644 080. We run the search, tell you within one working day what the title shows and whether a caution should go on it, and quote the first stage. Nothing is charged until you instruct us.

Peter Maina is a Partner of Peter Maina & Company Advocates, Hazina Towers, Nairobi. He is an Advocate of the High Court of Kenya practising in conveyancing and real estate, corporate and commercial, and capital markets law, and acts for Kenyans abroad in the purchase, protection and recovery of land in Kenya.