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MOI UNIVERSITY

FACULTY OF LAW

BACHELOR OF LAWS PROGRAMME (LL B)

CLS 205A: LAW OF PROPERTY IN LAND

NAME: REGISTRATON NO: SIGNATURE:


JUSTUS A. AMITO 1033055

Question.

In august 2010 constitution of Kenya revolutionize the legal regime relating to land law in
Kenya. With regard to the key provisions of land in the new constitution discuss the various
legislations relating to land in Kenya.

ANSWER;

1. History Of Land Law In Kenya (Pre-Independent Legislation)

The development of land law in Kenya and its policy has a long history. This is attested to by the
many reports, long lists of policy papers and commissions set up by the various regimes i.e. the

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colonial regimes and the post-colonial regimes. Before the establishment of the British rule in
1895, Kenyan communities occupied certain portions of land where they lived either as
pastoralists, fishermen, hunters and gatherers or as cultivators. Their land laws were customary
laws. In some communities, land was owned communally. Each individual in the community had
a right to use land in a manner that is acceptable to others.

On June 15th 1895, Kenya was declared a British protectorate. This declaration did not confer any
rights over land in the territory. The legal effect of the declaration was merely to confer on the
British Crown political jurisdiction over the area while it remained a foreign jurisdiction.
Therefore, any rights in land would be acquired through conquest, agreement, treaty or sale with
the indigenous people (Africans). An administration agreement between the British government
and the Imperial British East African Company (IBEACo) in 1895 conferred to the former control
over all rights in land ceded to the latter by concession agreement which the sultan of Zanzibar
had signed in 1898.In 1897, the Indian Land Act1 was extended to the territory thus enabling the
appropriation of lands beyond Mombasa for public use. However, this appropriation was limited
to the land within one mile of either side of the railway line.

The commissioner of the protectorate (later named governor) in 1901 was conferred with
the power to dispose of all public lands on such terms and conditions as he might think fit. 2 The
land (now called crown land) was vested in the commissioner in trust for British crown. The crown
land ordinance of 1902 defined crown land as all public lands within the East African Protectorate
which for the time being are subject to the control of his majesty by virtue of any treaty, convention
agreement or by virtue of His majesty’s Protectorate and all lands which have been or may
hereafter be acquired by His Majesty under Land Acquisition Act, 1894 or otherwise however. It
also empowered the commissioner to sell freeholds in crown land up to1000 acres to any person
or grant leases of 99 years.

The commissioner in 1915 was empowered to grant 999 year leases (agricultural land) for a token
and 99 year leases of a land within townships at a nominal rent.3 The commissioner also had the
power 99 year leases to 999 year leases. The 1902, Crown land ordinance, the first version of

1
Indian Lands Act 1860
2
Provisions of the East African (Lands) Ordinance in Council of 1901.
3
Crown land Ordinance of 1915 (an amendment of the crown land ordinance of 1902).

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repealed Government Land Act, chapter 2804 of the laws of Kenya, recognized a situation where
indigenous people would be allowed to continue occupying land, which had been taken away by
colonialists. As a result, some of the Crown Land Native Reserves were to be designated from
which the colonialists were excluded.

Guided by the case of Pilcher vs. Rawlins5 in the United Kingdom, the Registration of Titles Act,
19206 was enacted. It entrenched the Torrens Principles of land registration in Kenya. This is a
system of land title in which the register of land was maintained by the state and a conclusive and
indefeasible title was granted to those in the register. Any certificates of ownership were to be
registered under this Act.

In 1923 there was a land mark ruling, in the case of Isaka Wainaina v Murito.7 The Chief Justice,
Barth, held that the native tribes were mere tenants of the Crown. It was mentioned in orbiter that
the Crown Lands Ordinance 1915, the Kenya Annexation Order-in-Council1921and Kenya
Colony Order-in-Council 1921 were to the effect of taking away any absolute rights in land that
the natives heard

Between 1919 and 1939, many native reserves were reclaimed; security of tenure by the
indigenous people was increased during this period. The British appointed the Kenya Land
Commission, which inquired in to land issues and made its recommendation. This led to the
establishment of Land Racial Reserves in 1938.

2. Post Independent Legislations

There was no consolidated body of land law enacted in Kenya until 1963 when a Registered Land
Act8 (the now repealed Cap. 300) came into effect. Up to that point and for a vast number of ex-
settler properties the applicable regime remains the common law of England as modified by the
doctrines of equity and statutes of general application. The Transfer of Property Act of India 1882

4
Government Lands Act 1915
5
(1872) 7 Ch App259 where a vendor conveyed the fee simple estate to the plaintiff. The vendor retained the
deeds and later “conveyed‟ the fee simple to a second distinct individual. It was impossible for the vendor to pass
anything else other than the document he had. The case was decided to the favor of the second individual and this
created a need for legislation that would avoid such „injustice‟.
6
Cap 281of the laws of Kenya
7
(1922)9 KLR 102
8
Chapter 300 of the Laws of Kenya

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(now also repealed) was thus necessary only as part of the administrative infrastructure of land
relations and plenitude of substantive land laws within the settler community.9

Other legislations that governed the management and administration of land at this stage includes
Indian Transfer of Property Act10, The Government Lands Act and the Registered Land Act,
Wayleaves Act11, Land Titles Act12, Registration of Titles Act13, Registered Land Act14 and the
Land Acquisition Act15

3. Current Legislations on Land

In response to the above and the various challenges that came with administering the various
legislations on land, the Constitution 2010 brought in new relief in the management and
administration of land. Article 60 sets out the principles of land policy while Articles 61-64 classify
land tenure in Kenya into public, community and private. Article 65 pegs landholding by
foreigners to leasehold tenure of a maximum of 99 years only. Article 66 embraces the land law
doctrine of police powers. Article 67 establishes the NLC which is statutorily underpinned in the
NLC Act. Article 68 is the specific constitutional anchor for the new statutes.

Article 61(2) of the 2010 Constitution of Kenya now classifies and typologies Kenya‘s land tenure
into three: public, community or private.16 According to Article 62, public land is (a) land which
at the effective date was un alienated government land as defined by an Act of Parliament in force
at the effective date; (b) land lawfully held, used or occupied by any State organ, except any such
land that is occupied by the State organ as lessee under a private lease; (c) land transferred to the
State by way of sale, reversion or surrender; (d) land in respect of which no individual or
community ownership can be established by any legal process; (e) land in respect of which no heir
can be identified by any legal process; (f) all minerals and mineral oils as defined by law; (g)

9
H. W. O. Okoth-Ogendo, ―Land Policy Developments in East Africa: A Survey of Recent Trends”, A Regional
Overview Paper for the DFID Workshop on ‗Land Rights and Sustainable Development in Sub-Saharan Africa’ held
at Sunningdale Park Conference Centre, Berkshire, England on 16-19 February 1999.
10
Indian Transfer of Property Act 1882
11
Wayleaves Act Cap 292
12
Land Titles Act Cap 282
13
Registration of Titles Act Cap 281
14
Registered Land Act Cap 300
15
Land Acquisition Act Cap 295
16
Constitution of Kenya Article 61(2)

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government forests other than forests to which Article 63 (2) (d) (i) applies, government game
reserves, water catchment areas, national parks, government animal sanctuaries, and specially
protected areas; (h) all roads and thoroughfares provided for by an Act of Parliament; (i) all rivers,
lakes and other water bodies as defined by an Act of Parliament; (j) the territorial sea, the exclusive
economic zone and the sea bed; (k) the continental shelf; (l) all land between the high and low
water marks; (m) any land not classified as private or community land under this Constitution; and
(n) any other land declared to be public land by an Act of Parliament— (i) in force at the effective
date; or (ii) enacted after the effective date.17

On the other hand, under Article 63(2), community land consists of— (a) land lawfully registered
in the name of group representatives under the provisions of any law; (b) land lawfully transferred
to a specific community by any process of law; (c) any other land declared to be community land
by an Act of Parliament; and (d) land that is— (i) lawfully held, managed or used by specific
communities as community forests, grazing areas or shrines; (ii) ancestral lands and lands
traditionally occupied by hunter-gatherer communities; or (iii) lawfully held as trust land by the
county governments, but not including any public land held in trust by the county government
under Article 62 (2). However, the Community Land Bill is yet to be enacted to implement this
section.

In accordance with Article 64, private land consists of — (a) registered land held by any person
under any freehold tenure; (b) land held by any person under leasehold tenure; and (c) any other
land declared private land under an Act of Parliament.

In compliance with the implementing legislation deadline imposed by the Sixth Schedule of the
Constitution, the Kenyan Parliament passed the Land Act18, Land Registration Act19 and National
Land Commission Act20 which are meant to implement the NLP and Chapter Five of the
Constitution by changing the practice of land rights administration in Kenya. Suffice it to state that
the operation of the three new land statutes commenced on 2 May 2012

17
Constitution of Kenya, Article 61(2)
18
Act No. 6 of 2012.
19
Act No. 3 of 2012.
20
Act No. 5 of 2012.

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The land Act

The land act 2012 has provided for various ways in which land issues can be addressed and justice
served. The act seeks to address various issues that have rocked the better part of the Kenyan
population. Land tenure is clearly defined in section 5 of the act to be either freehold or leasehold
and customary land where inconsistent with the constitution.21 It also specifies how institutions
dealing with land issues are to be managed and administered and how to acquire title to land.22

Part 2 stipulates on how public land is to be managed,23 the conversion of land 24


and how
allocation of public land is to be undertaken,25 and the formation of a commission to tackle public
land issues.26 Part 4 deals with community land. Under the private land part 5, vendors have the
right to regain possession in case of failure of the purchaser to fulfill any contractual term.27 It also
is clearly elaborated as to the transfers of ownership of land under section 43. The transmission of
land in the event of death bankruptcy or liquidation is clearly addressed.28 The general provision
on leases, transfer of assignment of leases and the remedies thereof are outlined.29

Part 7 is the general provisions as to charge are being provided, with issues dealing with covenant,
conditions, and powers implied in charges.30 Part 8 spells out the mode in which compulsory
acquisition of interest in land can be exercised, the power of entry to inspect land,31 and the right
of entry.32

Issues to deal with the resettlement of people are for the first time since the entry of the white man
being addressed in a broader perception.33 Establishment of settlement schemes has been provided
as a means of ensuring that people have security of land tenure.34 It is also if there should be land

21
The Land Act 2012. Article 5.
22
Ibid. section 6.
23
Ibid section 8
24
Ibid section 9
25
Ibid section 12.
26
Ibid. section 15
27
Ibid. section 39.
28
Ibid section 49-54.
29
Ibid part 6.
30
Ibid part 8
31
Ibid section 108.
32
Ibid section 129.
33
Ibid part 9.
34
Ibid section 134

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settlement fund to gather for the resettlement.35 Part 10 provide for easements and analogous
rights, the nature of easements36. The privileges under easement for example the right of way is
widely dealt with in section 139-142. There is also the issue of public land right of way which is
fully addressed for the right of the public to access easement where required37. Under section 149,
the court is empowered to enforce public rights of way.

The Land Act provides the body of Kenya’s substantive law, earlier found scattered in different
pieces of legislation like the Indian Transfer of Property Act 1882, The Government Lands Act
and the Registered Land Act. It repeals the Wayleaves Act Cap 292 and the Land Acquisition Act
Cap 295. The law has the effect of embodying Kenya’s substantive law in one statute which makes
easy reference for scholars and practitioners.

The Land Registration Act

The Land Registration Act have also paved way for a course within which historical injustices
experienced by some communities have to be fully addressed and the matter dealt with in totality.
There is a defined land register, land registries and offices under part2. Public access to the register,
as a means of ensuring transparency, is also provided for.38The effects of registration as with regard
to value, proprietorship and transfer and that a certificate of title is to be held as a conclusive
evidence of proprietorship.39 There is a clear leeway as to disposition affecting land especially
private land,40 also the privileges accorded to a person with disabilities,41 regulations to deal with
minors,42and the use of an instrument in writing, verification of the execution and stamping of the
instruments. Transmission and trusts also are widely dealt with in a broader sense than ever before,
43
that is to incline the fact in the ground with inhibitions, cautions and restrictions.44 Thus it is the

35
Ibid section 135.
36
Ibid section 138
37
Ibid section 143- 148.
38
The Land Registration Act 2012.
39
Ibid section 26.
40
Ibid section 36.
41
Ibid section 48,49
42
Ibid section 47.
43
Ibid section 60-67.
44
Ibid section 68-78.

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basis within which the platform of redress can be administered to those who have been deprived
of their ancestral lands.

This law is the singular law that guides the registration of title to land in Kenya, earlier done under
various statutes like the Land Titles Act Cap 282 earlier applicable to properties within the ten
mile Coastal strip and the Registration of Titles Act Cap 281 earlier operated under a Centralized
Land Registry at Nairobi for properties surveyed under precise boundaries. It also repealed the
Registered Land Act Cap 300 which applied to most rural properties surveyed under general
boundaries and some few urban properties surveyed under the “fixed boundary” provisions of the
Act. Land Registration Act also repealed the Indian Transfer of Property Act 1882 and the
Government Lands Act Cap 280. The application of this law has resulted in a uniform land
registration system and uniform registries countrywide. This has eased land transactions and land
development in the country.

The National Land Commission Act

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The National Land Commission Act was also enacted to make further provision as to the
functions and powers of the National Land Commission, qualifications and procedures for
appointments to the Commission; to give effect to the objects and principles of devolved
government in land management and administration, and for connected purposes. Section 3
provides for the object and purpose as to be; a) for the management and administration of land in
accordance with the principles of land policy set out in Article 60 of the Constitution and the
national land policy; (b) for the operations, powers, responsibilities and additional functions of the
Commission pursuant to Article 67 (3) of the Constitution; (c) a legal framework for the
identification and appointment of the chairperson, members and the secretary of the Commission
pursuant to Article 250 (2) and (12) (a) of the Constitution; and (d) for a linkage between the
Commission, county governments and other institutions dealing with land and land related
resources.

Under S5, the functions of the NLC includes public land management, policy-formulation, title
registration, research, investigations, dispute-settlement, tax assessment and land-use planning
oversight. The powers of the commission under section 6 include information-gathering, inquiries

45
Act No. 5 of 2012

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and default powers. As far as devolved land administration is concerned, the establishment of
county land management boards (CLMBs) is covered by section 18.

The Environment and Land Court Act

This establishes a court of a similar jurisdiction to the High Court which will have jurisdiction
over cases and disputes on matters relating to land and environment.46 It repealed The Land
Disputes Tribunals Act No. 18 of 1990.

Summary
 East African order-in-council 1889
 Foreign Jurisdiction act(England 1890)
 East African order-in-council 1987
 (Indian land acquisition act1894)
 East African land regulation 1897
 Constitution of Kenya 2010.
 Karuti Kanyinga. The redistribution from above: the politics of land rights and squatting
in coastal Kenya. Pp, 43-45.
 Law Africa publishing Ltd. Lumumba, P.L.O, Mbondenyi, Morris Kiwinda. The
Constitution of Kenya: Contemporary Readings
 Crown Lands (Access to Roads) Act 1914
 Crown Lands Ordinance (amended 1902)
 Torrens principles 1920
 Pilcher vs Rawlins (UK)
 Government Lands Act 1920
 Registration of titles Act 1920
 Kenya Colony Order-in-Council 1921
 Kenya Annexation Order-in-Council 1921
 IsakaWainaina vs Murito 1923
 Native lands Trust (amendment) ordinance 1932

46
The Environment and Land Court Act, 2011:

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 1ndian Transfer of Property Act (1882) 1959
 Land Order-in-Council 1960
 Registered Land Act 1963
 Land control Act 1967

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