Chiefs need to be sensitised on their limits on land and succession cases

Land remains one of the most sensitive issues in Kenya. It is not only an economic asset but also a source of identity, heritage and family security. It is therefore not surprising that many disputes brought before our courts revolve around land ownership and succession. Unfortunately, many of these disputes are made worse by actions taken long before they reach the courtroom, particularly at the offices of the local chiefs. Chiefs continue to play an important administrative role as representatives of the national government at the grassroots level. They help maintain security, coordinate government services and provide administrative support to the public. However, despite the transformative changes introduced by the Constitution of Kenya, there remains a widespread misconception that chiefs possess authority to determine land ownership, decide succession matters or allocate family property especially in the rural areas. They do not.

One of the most common areas where this misunderstanding arises is in succession proceedings. When a deceased person dies intestate, family members are often required to obtain an introductory letter from the area chief confirming the deceased’s residence and identifying the surviving beneficiaries. The purpose of this letter is purely administrative. It merely assists the court by providing preliminary information. It is neither evidence of ownership nor a determination of who should inherit the estate. The court alone has the constitutional and statutory mandate to determine succession disputes. Unfortunately, some chiefs have gone beyond this limited role. There are increasing complaints that many demand bribes before issuing introductory letters, delaying families that are already grieving. Others reportedly omit genuine beneficiaries, introduce individuals who are not members of the family, or favour certain relatives over others. Such actions compromise the integrity of succession proceedings and expose innocent families to lengthy and expensive litigation.

Equally worrying is the growing tendency by some chiefs to participate directly in land transactions. In many rural areas, chiefs preside over meetings where family land is divided before succession has been concluded. Some even identify the portions that each beneficiary should occupy or prepare handwritten agreements purporting to transfer interests in land. Others witness or draft sale agreements involving estate property before letters of administration have been issued by the court. These practices have no basis in law. Under the Law of Succession Act, no person has authority to distribute or deal with the estate of a deceased person unless legally appointed by the court as an administrator or executor. Intermeddling with the estate of a deceased person is prohibited and may attract legal consequences. Similarly, questions relating to ownership, use and occupation of land fall within the jurisdiction of the Environment and Land Court or other courts established under the law, not the office of the chief.

The sad result is that families are drawn into avoidable disputes. A letter from the chief on informal land allocation is often treated by some family members as a final decision, only for the courts to later find that the process was unlawful. By then, boundaries may have been altered, homes constructed or land sold to unsuspecting purchasers, again without due process. In some instances, these disagreements escalate beyond litigation. Family relationships break down permanently, communities become divided and tragically, some land conflicts have resulted in violence and loss of life. Such consequences defeat the very purpose for which chiefs exist, namely, to promote peace, order and harmonious coexistence within their communities.

The Constitution of Kenya ushered in a new legal order founded on the rule of law, accountability and respect for constitutional institutions. Public officers are expected to exercise only those powers conferred upon them by law. Chiefs are no exception. Their authority is administrative and never judicial in nature. They cannot replace courts, land registrars or succession courts simply because they are respected local leaders. This is why there is an urgent need to sensitize chiefs on the limits of their mandate in land and succession matters. Regular legal training should be undertaken by the Ministry of Interior in collaboration with the Judiciary, the National Land Commission and the Law Society of Kenya. Such training should clearly explain what chiefs may lawfully do and equally importantly, what they must not do.

Public education is equally necessary. Many Kenyans still believe that a chief has the final word on family land or inheritance simply because that has historically been the practice in some communities. Citizens need to understand that while a chief may assist in identifying family members or promoting reconciliation, legal rights over land and inheritance can only be determined through the processes established by law. There should also be effective accountability where chiefs exceed their authority. Allegations of bribery, abuse of office or unlawful interference in succession matters should be investigated promptly.

Chiefs remain indispensable to local administration and community leadership. Their contribution to maintaining peace and facilitating government services cannot be underestimated. However, that important role should not be confused with powers they do not possess.