In Kenya, a child is an individual who has not attained the age of eighteen years. Generally, children cannot own land or property in their own name as children. However, land and property can be held in trust for their benefit and use. Contracts relating to land and its conveyance must be in writing. There must be a final, complete, written contract on at least the essential terms, being: offer, acceptance, consideration, capacity, and the intention to create a legal relationship. The most important details in terms of enforceability of sale of land agreements are that they must be in writing, signed by both parties, attested/witnessed in the presence of the person attesting, and the terms must be in one document.
Section 27 of the Land Act No. 6 of 2012 outlines the requirements of children registered as having title to property through a trustee and being in the same position as an adult in terms of liability and litigation pertaining to the land. Section 47 of the Land Registration Act No. 3 of 2012 states that a minor may be registered as the proprietor of land if the following conditions are met: (1) the name of a person under the age of eighteen years may be entered in the register to enable the minor’s interest to be held in trust, and (2) a person under the age of eighteen years is not to deal with land or any interest in land under such registration.
The land laws grant minors property rights, yet limiting their ability to transact is necessary to protect investments. Guardians have the authority and obligation to administer the child’s estate, receive, reclaim, and invest the property, and protect the estate from loss or damage. They must also retain accurate payment records and submit them in court if necessary.
To purchase property for a minor, the sales agreement is created in trust for the minor in the name of a guardian and is legally binding on the parties, protecting the rights of everyone involved in the transaction. The birth certificate/passport is used to demonstrate that the minor is under the age of 18. Following a successful transfer, the title is usually registered under the name of the guardian (s) as trustees of the minor as below:
Guardian name … as trustee of Child of Birth Cert no…
Children are also able to acquire land through transmission and trusts. A person who deprives a child of any property or benefits accruing to the child under the Law of Succession Act relating to inheritance commits an offence and is liable to imprisonment for a term not exceeding two years or, to a fine not exceeding five million shillings.
In our next article, we shall unravel the specific components of a sale agreement where a minor is a purchaser or transferee. Proper documentation can be key in making sure all parties are protected. Remember that minors may not have the same legal rights as an adult, and that is why it is up to their guardians to ensure they receive adequate compensation for the land they have sold. The best contracts will include vital details like the amount of money paid, how it will transfer, and what kinds of warranties are being offered. For a sale of land contract to be valid, the person selling the land must have the legal capacity to do so. A minor has limited legal capacity, which is why parents or guardians generally sign contracts on their behalf.
By Cindy Terry
