Family Trusts for Kenyans in the Diaspora – Frequently Asked Questions (FAQ)

By CM Advocates LLP

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1. What is a family trust and how does it work?

A family trust is a legal arrangement where assets—such as land, property, or investments—are held and managed by trustees for the benefit of named beneficiaries.
Once the trust is registered under the Trustees (Perpetual Succession) Act, it becomes a legal entity capable of owning property, managing assets, and distributing income according to the trust deed.

2. Why is a trust particularly important for Kenyans living abroad?

For Kenyans in the diaspora, managing inherited property from overseas can be difficult.
A trust ensures:

• Your assets in Kenya are legally protected,

• Trustees manage and distribute them on your behalf,

• And your intentions are carried out without delays or disputes, even when you are not physically present.

3. Can a trust protect my inheritance from misuse or fraud?

Yes. Once assets are transferred into a registered trust, they belong to the trust (not to individual family members). This means:

• Unauthorized sales or transfers of land are prevented,

• There is a clear legal title,

• Trustees are accountable by law for any mismanagement.

4. What assets can I place in a family trust?

Typical assets include:

• Family or ancestral land

• Urban real estate and rental properties

• Family-owned businesses and company shares

• Investment portfolios and bank accounts

• Farming income or joint venture earnings

• Life insurance proceeds and education funds

5. How is a family trust different from a will?

Will

• Must go through probate (court process) before assets are distributed

• Becomes a public document once probated

• Can be contested or delayed

Trust

• Avoids probate entirely

• Remains private and confidential

• Provides continuous management of assets even during incapacity or absence

6. Can a trust be used for blended or polygamous families?

Yes. Trusts are particularly useful in complex family structures, such as blended or polygamous families. They allow:

• Clear rules for allocating income and assets,

• Equal protection for all spouses and children,

• Reduced risk of disputes over inheritance.

7. I already live abroad. Can I still set up a trust in Kenya?

Absolutely.
With proper legal representation, you can:

• Instruct your lawyer remotely,

• Sign trust documentation electronically (where applicable),

• And appoint trusted local trustees or professional trustees to administer the trust.

8. What is the process of setting up a family trust?

The key steps include:

1. Consultation with a qualified estate planning lawyer.

2. Identification of assets to be included.

3. Drafting a trust deed, specifying beneficiaries and trustee powers.

4. Registration under the Trustees (Perpetual Succession) Act.

5. Transfer of assets into the trust.

9. How long can a trust last?

Following the 2021 amendments to the Accumulation and Perpetuities Act, trusts in Kenya can now exist indefinitely. This allows long-term legacy planning for future generations.

10. What role does CM Advocates LLP play?

At CM Advocates LLP, we assist Kenyans in the diaspora by:

• Drafting and registering family trusts

• Advising on trustee appointments (family vs professional)

• Providing ongoing compliance and trust management

• Offering cross-border estate planning solutions to secure Kenyan assets

Conclusion

For Kenyans abroad, a family trust is the most secure, private, and practical way to manage and protect inheritances in Kenya.
It provides peace of mind, ensures fairness, and preserves family wealth across generations.

Contact CM Advocates LLP Today
Email: cmaina@cmadvocates.com or law@cmadvocates.com | Call: +254 721869790

Family Trusts for Kenyans in the Diaspora: Secure Your Legacy and Investments Back Home

Family Trusts for Kenyans in the Diaspora: Secure Your Legacy and Investments Back Home

By CM Advocates LLP

For the growing number of Kenyans living and working abroad, building a life in the diaspora often goes hand-in-hand with investing back home—whether in land, real estate, businesses, or family welfare. However, many diaspora Kenyans face significant hurdles when it comes to safeguarding these investments, managing them remotely, and ensuring their smooth transition across generations.

At CM Advocates LLP, we advise Kenyans in the diaspora to use family trusts as a dependable, flexible, and secure legal structure for estate planning and investment management. Family trusts provide long-term protection, professional management, and a seamless way to transfer wealth—without the delays, costs, or disputes of probate.

Legal Framework for Family Trusts in Kenya

Family trusts in Kenya are founded on strong legal footing:

• The Trustees (Perpetual Succession) Act, Cap 164, empowers individuals to register trusts as independent legal entities capable of owning and managing property.
• The Accumulation and Perpetuities (Amendment) Act, 2021 abolished the former 80-year lifespan limitation for trusts—enabling them to operate indefinitely and serve multiple generations.

These progressive reforms make Kenya a highly attractive jurisdiction for diaspora Kenyans seeking long-term asset protection and structured legacy planning.

Common Challenges Faced by Kenyans in the Diaspora

Despite their commitment to invest back home, diaspora Kenyans frequently encounter:

(a)            Fraud, Land Grabbing & Mismanagement

Properties acquired remotely are often misused, grabbed, or sold off unlawfully by relatives, third parties, or untrustworthy agents.

(b)            Probate Delays & Inheritance Disputes

Without a clear legal framework, succession becomes entangled in prolonged court proceedings, contested wills, or family infighting.

(c)             Remote Asset & Business Management

Running a property portfolio, farm, or enterprise from abroad is nearly impossible without trusted and structured oversight.

(d)            Vulnerable Dependents at Risk

Absent a succession plan, dependents such as children, spouses, or those with special needs may be left unprotected or mismanage inheritance.

How a Family Trust Addresses These Problems?

1. Centralised, Professional Management of Local Assets

Family trusts allow diaspora Kenyans to consolidate investments—land, rental properties, businesses—under one trust. Trustees can:

• Manage and maintain property
• Collect rent or dividends
• Pay taxes and cover operational expenses
• Allocate or remit income to beneficiaries locally or abroad

This structured oversight ensures your assets remain secure, productive, and compliant—even in your absence.

2. Eliminates Probate and Legal Delays

Assets placed in a trust bypass the probate process under Kenyan law. Benefits include:

• No need for a court-supervised estate administration
• Immediate access to income and support by beneficiaries
• Confidentiality of your estate plan
• Elimination of inheritance-related delays or family disputes

3. Immovable Protection of Family Land and Property

Trust-held land cannot be grabbed or misused. You can legally stipulate:

• That the land be preserved for future generations
• That income supports specified individuals (e.g. parents, spouse, children)
• That decisions be made by professional or neutral trustees

This creates permanence, clarity, and protection around sensitive family assets.

4. Education & Welfare Support Built into Your Legacy

A trust can establish a designated education or welfare fund, disbursed under conditions you define, to support:

• Tuition fees and academic expenses for your children or siblings
• Medical care, upkeep, or housing for vulnerable relatives
• Dependents with special needs or long-term challenges

This ensures sustainability, structure, and responsible use of your resources.

5. Business Continuity for Diaspora-Owned Enterprises

Whether you’ve invested in an SME, farm, or rental business, placing it in a trust enables:

• Continued operation after death or relocation
• Professional management with consistent income to family
• Avoidance of collapse or mismanagement by inexperienced heirs

Trusts as Holding Vehicles for Family Businesses

A family trust can act as a strategic holding company for shares in one or several family businesses, allowing:

• Centralised control and governance
• Long-term succession planning without restructuring
• Intergenerational stewardship of family enterprise

The Articles of Association of family companies can be amended to mirror the trust deed, giving trustees the power to:

• Appoint or remove directors and managers
• Approve major decisions or veto them
• Align business growth with the settlor’s long-term values

Even while living abroad, the settlor or trustees can retain full legal and managerial control via Kenya-based directors or trust managers—ensuring consistent governance aligned with your family’s goals and identity.

Trusts vs Statutory Succession: Why It Matters

In the absence of a trust or valid will, Kenya’s Law of Succession Act (Cap 160) automatically applies, particularly Sections 35 and 40, which mandate formulaic distribution across spouses and children. In polygamous or complex family settings, this often leads to contentious and unintended consequences.

Illustrative Case: Rono v Rono [2005] eKLR-Here, the Court of Appeal enforced statutory sharing among multiple houses, regardless of individual contributions. This case remains a stark warning against relying on intestate succession where the law—not the individual—decides who gets what.

Recent jurisprudence such as Chepyator v Chepyator & 11 others; Kogo (Petitioner); Rono (Interested Party) [2024] KEHC 10918 (KLR) reaffirms that where no family consensus exists, courts will apply Section 40’s “house-to-house” formula, considering number of children per house and any land previously allocated by the deceased. This can override personal wishes unless clearly documented through legal means like trusts.

A family trust removes your estate from the limitations of intestate laws, giving you full authority to define:

• Who inherits
• How and when they inherit
• Conditions for management or distribution

Types of Assets Ideal for Trust Holding by Diaspora Kenyans

• Residential or ancestral land in Kenya
• Rental apartments and commercial buildings
• Shares in Saccos, companies, or investment portfolios
• Agribusinesses and farming ventures
• Education, health, or emergency funds
• Life insurance proceeds and pension entitlements
• Family businesses and joint ventures

Transferring these to a trust guarantees structured succession, continuity, and legal security—no matter where you live.

How CM Advocates LLP Supports Diaspora Kenyans

At CM Advocates LLP, we offer end-to-end legal solutions tailored to your diaspora context:

• Drafting Trust Deeds aligned with your estate goals and family dynamics
• Registering Trusts under the Trustees (Perpetual Succession) Act
• Cross-border legal counsel on tax, enforcement, and asset structuring
• Neutral professional trustee services, when independent oversight is needed
• Training for family trustees to ensure future-proofed succession
• Company and Trust Alignment, including revising company Articles to empower trustees with business decision-making authority

Conclusion: Safeguard What You've Built—Across Generations and Borders

Kenyans in the diaspora face a unique combination of opportunity and vulnerability when managing assets back home. Whether you seek to:

§  Avoid inheritance disputes and probate delays

§  Preserve family land and legacy

§  Support loved ones through education or welfare programs

§  Ensure your business survives and thrives into the next generation

A family trust provides the legal structure and peace of mind to make it happen.

With added powers to own shares, control businesses, and dictate succession, a trust becomes the foundation of a lasting legacy. CM Advocates LLP is your trusted legal partner in Kenya—building, registering, and administering family trusts designed to endure across generations and borders.

Partner with Us Today

CM Advocates LLP is your trusted legal partner in Kenya—building, registering, and administering family trusts that are tailored for Kenyans in the diaspora and designed to stand the test of time, distance, and succession.

For personalised legal advisory and trust structuring services, contact us:-

 

CM Advocates LLP – Kenya

Head Office – Nairobi
I&M Bank House, 7^th Floor
2^nd Ngong Avenue, Nairobi, Kenya
E: law@cmadvocates.com;

Mombasa Office
Links Plaza, 4^th Floor
Links Road, Nyali, Mombasa, Kenya
E: mombasaoffice@cmadvocates.com

Navigating Legal Risks in Sectional Property Developments in Kenya

 Landmark Sectional Property Ruling – Developers Take Note

Rehman v Luhar (Environment & Land Case 10 of 2016) [2022] KEELC 13714 (KLR)

This pivotal ruling underscores heightened judicial scrutiny on compliance with Kenya’s Sectional Properties Act and land use laws.

Case Summary

Mr. Khalid Hussein Rehman purchased three apartments in a nine-unit development in Nyali, Mombasa. Mr. Ahmed Jan Mohamed Suleiman Luhar, the developer and owner of two units in Block B, constructed an additional rooftop apartment without obtaining the necessary regulatory approvals or the consent of other unit owners.

The construction lacked valid licenses from NEMA and NCA, and county approval was obtained only after works had commenced. The Defendant also failed to establish a management corporation as required by law.

Key Legal Findings

1. Sectional Properties Act Applied: Despite the property being under the repealed Registration of Titles Act, the court applied the 1987 and 2020 Sectional Properties Acts to protect purchasers and regulate shared property.
2. Breach of Disclosure: The Defendant violated Section 43 by failing to provide sectional plans. The rooftop unit was not part of the original approved development.
3. Unapproved Construction: Works commenced without valid approvals from NEMA and NCA.
4. Lack of Management Corporation: No body corporate had been created to manage the common property.
5. Infringement on Common Areas: The rooftop unit altered the approved design and encroached on common property rights.

Final Orders by the Court

In line with the objectives of the Sectional Properties Act and related provisions of the Land Act, 2012—including Sections 38 and 39, which empower courts to enforce land use conditions and uphold the sanctity of registered rights—the Environment and Land Court issued the following orders:

• The rooftop unit was declared unlawful.
• A permanent injunction was issued to restrain the Defendant from undertaking any further unauthorized developments.
• The Defendant was ordered to demolish the illegal rooftop structure and ensure full compliance with the statutory framework, including relevant environmental and planning approvals.

These orders reinforce the obligation of developers to adhere strictly to approved development plans, legal procedures, and statutory requirements.

Buyer Protections under the Sectional Properties Act

• Mandatory Disclosure: Buyers must be provided with sectional plans, titles, by-laws, and details of any charges.
• Title Clarity: Each buyer receives a certificate of title or lease inclusive of their proportional interest in common areas.
• Implied Easements: Owners enjoy statutory rights for access, services, and support.
• By-Laws and Governance: Enforceable rules manage unit and common area usage.
• Information Rights: Buyers can request financial and management records.
• Statutory Offences: Non-compliance attracts penalties including fines and imprisonment.

These protections improve legal certainty, buyer confidence, and development accountability.

Marketing Integrity & Legal Exposure

Developers and estate agents must ensure their marketing materials are factual and not misleading. Misstatements regarding unit size, layout, amenities, ownership, or approvals may give rise to civil liability. Misrepresentation in real estate occurs in three forms:

• Innocent Misrepresentation: A false statement made unknowingly. It may still allow the buyer to cancel the contract.
• Negligent Misrepresentation: A carelessly made false statement without reasonable verification. It may attract claims for damages.
• Fraudulent Misrepresentation: A knowingly false or recklessly indifferent statement made to induce purchase. It may result in significant financial, reputational, or even criminal consequences.

Any inconsistencies between marketing claims and actual legal or structural realities of a development may expose professionals to litigation, regulatory sanctions, or loss of public trust.

Key Takeaways for Developers & Owners

• Establish management corporations as required.
• Provide accurate and full disclosure to all unit purchasers.
• Refrain from unauthorized variations to approved development plans.
• Maintain integrity in all marketing and promotional materials.

Misleading information—whether innocent, negligent, or fraudulent—can trigger serious legal and commercial repercussions.

For legal advisory on sectional titles, real estate compliance, or dispute resolution, please contact:

CM Advocates LLP

Head Office Nairobi
I&M Bank House, 7th Floor, 2nd Ngong Avenue
T: +254 20 2210978 / +254 716 209673
E: law@cmadvocates.com or cmaina@cmadvocates.com 

Mombasa Office
Links Plaza, 4th Floor, Links Road, Nyali
T: +254 41 447 0758 / +254 41 447 0548
C: +254 791 649913
E: mombasaoffice@cmadvocates.com

Company Strike-Off Risks in Kenya: What Lenders, Families & Multinationals Must Know

Company Strike-Off Risks in Kenya: What Lenders, Families & Multinationals Must Know

Advisory from CM Advocates LLP | July 2025

In April 2025, Kenya’s Registrar of Companies intensified enforcement against non-compliant entities by issuing notices warning that failure to file annual returns or update Beneficial Ownership (BO) registers could lead to strike-off from the register under Section 894 of the Companies Act, 2015. This provision allows the Registrar to remove a company that is reasonably believed not to be carrying on business or in operation.

Concurrently, Section 93A of the Companies Act mandates all companies to maintain and lodge a register of their beneficial owners. Non-compliance invites severe sanctions, including dissolution and asset forfeiture under the doctrine of bona vacantia (ownerless property).

These compliance obligations have direct and compounded implications for:

• Financial institutions with security interests in affected entities,

• Legacy family businesses that lack succession clarity or documentation, and

• Multinational firms operating in Kenya through subsidiaries or holding companies.

At CM Advocates LLP, we offer integrated legal, compliance, and asset protection solutions to help stakeholders mitigate these escalating risks.

Specific Risks for Financial Institutions

Banks, DFIs, microfinance lenders, and private equity funds must be vigilant:

• Collateral Exposure: Charges over land or shares become unenforceable when borrower companies are struck off.

• Impaired Enforcement: Struck-off companies cannot be compelled to repay or perform obligations without being restored by court.

• Registration Gaps: Inactive companies may have unregistered securities or outdated BO records, violating AML/KYC protocols.

• Reputational & Regulatory Risk: Lending portfolios with dissolved companies undermine governance ratings and risk assessments.

Our Advisory:
CM Advocates LLP advises financiers to conduct periodic compliance reviews of all borrower companies and initiate pre-emptive rectification where risks are flagged.

Compliance Challenges for Legacy Family-Owned Companies

For Kenyan families that use companies to hold land, investments, or manage trusts:

• Deadlocked Decision-Making: Deceased directors or shareholders prevent filing of BO registers or passing resolutions.

• Probate Delays: Without Letters of Administration or Grants of Probate, shares cannot be transferred nor new directors appointed.

• Loss of Ancestral Assets: Strike-off without rectification may permanently disconnect heirs from family wealth.

• Administrative Confusion: Unverified data on BRS makes succession and restructuring highly complex.

Our Advisory:
We offer succession planning, probate litigation, and corporate restructuring to help preserve family-held business and land assets through proper compliance and governance.

Risks for Multinational Compliance & Legal Teams

Global companies using Kenyan subsidiaries, JVs, or holding vehicles face jurisdictional compliance pitfalls:

• Hidden Liability: Non-compliant Kenyan entities may trigger cross-border audit queries, affect consolidated group reporting, or breach global SOX or ESG frameworks.

• Regulatory Blacklisting: Failing to update BO registers or file tax returns can lead to reputational damage and fines from both local and foreign regulators.

• Asset Loss: Where subsidiaries hold land, leases, trademarks, or key licenses, strike-off renders these assets at risk of state forfeiture.

Our Advisory:
CM Advocates LLP works with general counsel, regional compliance officers, and tax teams to design cross-jurisdictional compliance solutions, ensure BO register conformity, and prepare contingency litigation or restoration filings as needed.

Tax Compliance & Strike-Off for Dormant Companies

Under the Tax Procedures Act, companies no longer operational must apply for:

• Strike-off from the company register, and

• PIN deregistration from KRA

Failure to do so can attract penalties, assessments, and enforcement action from the Kenya Revenue Authority—even if the company is inactive. This is a critical risk area for all institutions with legacy SPVs or shelf companies.

Proactive Mitigation Measures for All Stakeholders

CM Advocates LLP strongly recommends:

1. Portfolio Audit: Identify at-risk, dormant, or non-compliant entities.

2. File Outstanding Annual Returns & BO Registers

3. Apply for PIN Deregistration for Dormant Companies

4. Initiate Succession or Estate Proceedings for Deceased Shareholders

5. Conduct BRS Record Updates & Rectifications

6. Consider Voluntary Liquidation or Restructuring

7. Engage a Company Secretarial Partner:
   Bellmac Consulting LLP (Contact: Mrs. Anne Otunga at ceo@bellmacconsulting.com) handles filings, updates, and BRS compliance.

How CM Advocates LLP Can Support You

We offer:

• Legal audits and compliance reviews

• Restoration of struck-off companies

• BO register preparation and shareholder rectification

• Succession and probate advisory

• KRA PIN deregistration and tax clearance

• Lender-side due diligence and enforcement strategies

• Cross-border compliance coordination for multinational clients

• Liaison with BRS and Registrar to unlock locked company accounts

Request a Customized Compliance Checklist

To support your institution or family office in ensuring full compliance and avoiding strike-off, CM Advocates LLP can provide a tailored compliance checklist covering:

• BO register templates

• Annual return timelines

• Director/shareholder verification procedures

• Succession compliance triggers

• Tax and PIN deregistration workflow

• Lending security red flags

• Restoration application requirements

To request your checklist, contact us directly or write to law@cmadvocates.com

Contact Us

Head Office Nairobi
I&M Bank House, 7th Floor, 2nd Ngong Avenue
E: law@cmadvocates.com

Mombasa Office
Links Plaza, 4th Floor, Links Road, Nyali
E: mombasaoffice@cmadvocates.com

Adverse Possession: A Landmark Reminder for Passive Landowners

Adverse Possession: A Landmark Reminder for Passive Landowners

Court of Appeal Clarifies Legal Thresholds in Mwalimu & 6 Others v Halal & Another [2025] KECA 1186 (KLR)

Case Overview

On 4th July 2025, the Court of Appeal delivered a significant judgment dismissing an appeal lodged by seven members of the Mwalimu family. The appellants were seeking to acquire Plot No. Mombasa Island Block XV/31 by way of adverse possession. The family had long occupied the land and operated a motor garage under a tenancy initially created between their late father, Fadhili Mwalimu, and the former registered landowner.

Their claim was premised on the fact that they had remained on the land continuously and openly for over 30 years without remitting rent. Based on this occupation, they argued they had gained proprietary rights through adverse possession.

However, both the Environment and Land Court (ELC) and the Court of Appeal held that:

• The occupation was originally permissive, grounded in a tenancy agreement.

• The duration of hostile occupation fell short of the 12-year requirement under Section 7 of the Limitation of Actions Act.

In conclusion, the courts found no legal foundation to invalidate the title of the current registered owner, ruling that the Mwalimu family's continued presence did not satisfy the statutory criteria for adverse possession.

Key Legal Principles

1. Permissive Occupation ≠ Adverse Possession

The Court reaffirmed the critical principle that possession which begins under a tenancy, lease, or license is deemed permissive and does not constitute adverse possession. For such possession to evolve into adverse possession:

• The occupant must clearly repudiate or disclaim the title of the registered owner.

• The possession must be uninterrupted and hostile for a minimum of 12 years.

In this case, hostility arguably began in 2002, following a rent demand. However, since the suit was filed in 2010—only 8 years later—it failed to meet the legal threshold.

2. Fraud Allegations Are Incompatible with Adverse Possession

The appellants also asserted that the registered title had been fraudulently acquired. The Court emphasized that it is legally inconsistent for a party to challenge the validity of a title while simultaneously claiming rights by adverse possession. These two arguments are mutually exclusive and cannot coexist in the same legal action.

3. Informal or Familial Occupation Can Mature into Adverse Possession

Importantly, the judgment acknowledged that even family members, caretakers, or long-term undocumented occupants can successfully claim adverse possession—if their occupation becomes:

• Open,

• Exclusive,

• Uninterrupted, and

• Hostile to the title holder's interests for at least 12 years.

Even unwritten licenses or informal familial arrangements can eventually crystalize into ownership rights if not revoked or formalized in due time.

Extended Practical Lessons for Landowners, Buyers & Developers

1. Buyers Must Take Actual Possession Promptly

Purchasers—especially those acquiring land through:

• Land-buying companies,

• Cooperatives, or

• Third-party sellers—

must ensure they take physical possession of the land immediately upon transaction completion. Failure to do so may empower:

• Squatters,

• Caretakers, or

• Former tenants

to assert claims via adverse possession. Courts have upheld such claims even where buyers:

• Paid full consideration,

• Held registered titles, but

• Never took actual possession or began development.

Legal Tip: Always demand vacant possession during handover, and substantiate possession through:

• Signed possession certificates,

• Dated photographic evidence.

2. Expired Leases or Rent-Free Occupancy = Risk Zone

When a:

• Tenant continues occupation post-lease expiry,

• License is terminated but not enforced,

• Occupant ceases rent payments and the owner remains inactive,

the clock may begin ticking toward adverse possession. Uncontested, such long-term occupation—even by a former tenant—can legally mature into ownership once the 12-year period lapses.

How CM Advocates LLP Can Help Protect Your Land

CM Advocates LLP offers tailored legal strategies to assist property owners, landlords, and developers in mitigating and responding to adverse possession risks.

Where a buyer fails to take possession, we issue legal notices, initiate possession protocols, and where necessary, commence eviction proceedings. If a tenant overstays without paying rent, we enforce the lease, facilitate re-entry, and seek court-ordered evictions. For family members or caretakers occupying land, we draft and enforce license agreements, issue revocation notices, and lodge protective land entries. In instances of informal occupation on project sites, we undertake pre-development land clearance and conduct occupation audits. If adverse possession is suspected, we file land recovery suits, lodge restrictions or cautions against the title, and pursue injunctive relief through the courts.

Practice Area Integration

This case highlights the critical need for multidisciplinary legal responses, which CM Advocates LLP provides through the following specialist teams:

• Private Clients: Structuring family land use through revocable licences, tenancies, declarations, and succession planning.

• Real Estate Development: Ensuring legal site handovers, eviction of pre-existing occupants, and title safeguarding.

• Commercial Real Estate: Drafting enforceable leases with robust post-expiry provisions and re-entry mechanisms.

• Litigation & Dispute Resolution: Swift court action for land recovery and injunctions where possession rights are contested.

Final Word

“The law does not protect the idle. If you own land, act like it.”

This landmark judgment serves as a stark reminder to landowners: title registration alone is not enough. Allowing others to remain on your land—be they tenants, relatives, or informal occupants—without documentation, follow-up, or repossession action can eventually empower them to claim ownership.

Need Help Preventing or Responding to Adverse Possession Claims?

CM Advocates LLP

Nairobi Office

I&M Bank House, 7th Floor, 2nd Ngong Avenue
📞 +254 20 2210978 / +254 716 209673
📧 law@cmadvocates.com
🌐 www.cmadvocates.com

Mombasa Office

Links Plaza, 4th Floor, Links Road, Nyali
📞 +254 041 447 0758 / +254 791 649913
📧 mombasaoffice@cmadvocates.com

Real Estate, Banking and Finance Department
📧 RBF@cmadvocates.com

Dispute Resolution Department
📧 disputeresolution@cmadvocates.com

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Prepared by the Real Estate, Banking & Finance, and Litigation Practice Groups at CM Advocates LLP – Your Legal Safeguard for Land Ownership Across Kenya.

Safeguarding Matrimonial Property Rights: Legal Options Available to Spouses in Kenya

LEGAL ALERT

Safeguarding Matrimonial Property Rights: Legal Options Available to Spouses in Kenya

At CM Advocates LLP, we understand the growing complexity surrounding property ownership within marriages and the legal disputes that can arise when matrimonial interests are not adequately secured. The Supreme Court of Kenya’s decision in Petition No. 11 of 2020 – Joseph Ombogi Ogentoto v. Martha Bosibori Ogentoto & Federation of Women Lawyers (FIDA Kenya), [2023] eKLR, emphasizes the importance of spouses taking deliberate, informed steps to protect their interests in matrimonial property.

Overview of Petition No. 11 of 2020 – Joseph Ombogi Ogentoto v. Martha Bosibori Ogentoto

This landmark case involved a dispute over property registered in the name of one spouse but allegedly acquired through joint effort. The Supreme Court upheld a 50:50 division of the property but made it clear that such division must be based on proven contribution—whether financial or non-financial—and not merely the fact of marriage. The Court held that Article 45(3) of the Constitution does not confer automatic proprietary rights. Instead, each case must be assessed based on the parties’ direct and indirect contributions, and equality means fairness, not arithmetic equivalence.

Available Legal Avenues for Protecting Matrimonial Property Rights

One of the key ways spouses can protect their rights is through joint registration of property, either as joint tenants, where both own the property equally and it passes to the surviving spouse upon death, or as tenants in common, where each owns a distinct, possibly unequal, share that can be transferred independently.

Additionally, spouses may seek a court declaration of interest under Section 17 of the Matrimonial Property Act. This enables a spouse to establish their rights over property acquired during the marriage, considering any form of contribution, including domestic work and child care.

Another powerful tool is placing a caveat or caution. Section 68 of the Land Registration Act, 2012 permits any person claiming a right to land to lodge a caution to prevent dealings on the property until the claim is resolved. Moreover, under Section 93(2) of the same Act, property acquired during marriage and registered in one spouse’s name is presumed to be held in trust for both, unless proven otherwise. Furthermore, Section 79(2) of the Land Act, 2012 stipulates that matrimonial property cannot be transferred, leased, charged, or otherwise disposed of without spousal consent, where applicable.

Using Trusts and Family-Owned Investment Vehicles for Structuring Matrimonial Property

Beyond court declarations and cautions, spouses should consider strategic ownership structures that offer better protection, privacy, and succession planning.

One such structure is a family trust, which provides a neutral and protective framework for holding matrimonial property. It is particularly useful when the couple seeks asset protection from third-party claims, seamless intergenerational transfer, ownership privacy, and flexibility to adapt to family dynamics. The trust may hold the matrimonial home and other investments, naming both spouses and their heirs as beneficiaries, thereby removing sole control and safeguarding against risks such as unilateral sale, death, or incapacity.

Another structure is the use of family-owned companies or investment vehicles, particularly for business-related matrimonial property, such as rental or commercial premises. The asset can be transferred into a family company, with shares allocated equitably between spouses and possibly held in trust or nominee structures. This not only protects legal rights but also allows for tax planning and ownership governance through formal shareholding agreements. These can include spousal veto rights, dividend arrangements, and succession provisions in line with the family’s long-term goals.

Procedure for Asserting Matrimonial Property Interests

The Matrimonial Property Rules, 2022 provide a comprehensive framework for spouses or relevant parties—such as former spouses, executors, trustees, or administrators—to file claims. Claims can be brought during marriage, during separation or divorce, or within 12 months after a final divorce decree. Jurisdiction depends on the property’s value and location, with the High Court handling high-value property cases.

Claims are filed by Originating Summons (Form MP1) and must include a sworn affidavit, a list of disputed properties, supporting documents, and a statement of contributions and reliefs sought. The courts may then issue orders for vesting or division, occupation rights, postponement of vesting, land transfers, or monetary compensation.

Why Proactive Action Matters

Failure to formally assert matrimonial property interests can lead to dire consequences, such as financial loss, eviction, or exclusion from ownership—particularly for spouses who contributed in non-monetary ways. Kenyan courts now acknowledge domestic labor, home-making, emotional support, and managing family businesses as valid forms of contribution worthy of legal protection.

Moreover, Section 12(3) of the Matrimonial Property Act prohibits the eviction of a spouse from the matrimonial home except through a court order. Section 93(3) of the Land Registration Act also requires that one spouse must obtain written consent from the other before transacting in matrimonial property. Violations can lead to cancellation of title, damages, or injunctive relief.

The Supreme Court decision in Joseph Ombogi v. Martha Ogentoto confirms that while marriage itself does not create an automatic right to half of the property, it does entitle each spouse to a fair and equitable share based on proven contribution—setting a binding precedent going forward.

CM Advocates LLP: Your Strategic Counsel for Matrimonial and Family Wealth Matters

As Kenya’s leading law firm in Private Wealth, Family Law, and Cross-Border Estate Planning, CM Advocates LLP offers a full suite of advisory and litigation services. Our expertise spans matrimonial property disputes, trust formation, family business structuring, court declarations of beneficial interest, and cross-border estate governance.

We proudly serve high-net-worth individuals, family-owned businesses, and diaspora clients seeking globally compliant, confidential, and strategic legal advice on family wealth.

Need Help Protecting Your Property Rights?

Our specialized legal team provides guidance on:

• Structuring joint ownership;

• Obtaining court declarations of beneficial interest;

• Creating and managing family trusts;

• Lodging and enforcing caveats;

• Establishing asset-holding vehicles for family businesses;

• Mediation, arbitration, and family law litigation.

Contact Us

Head Office Nairobi
I&M Bank House, 7th Floor, 2nd Ngong Avenue
T: +254 20 2210978 / +254 716 209673
E: law@cmadvocates.com

Mombasa Office
Links Plaza, 4th Floor, Links Road, Nyali
T: +254 041 447 0758 / +254 041 447 0548
C: +254 791 649913
E: mombasaoffice@cmadvocates.com

Private Wealth & Family Law Practice
📧 Email: privatewealthlawyers@cmadvocates.com
🌐 Website: www.cmadvocates.com

CM Advocates LLP – Your Strategic Legal Partner in Family Wealth, Estate Planning, and Matrimonial Property Dispute Resolution – in Kenya and Globally.