UNIVERSITY OF EMBU

BACHELOR OF LAWS

LPR 201: PROPERTY LAW I, 2020

COURSE OUTLINE

Course Instructor: Dr Victoria Miyandazi

Purpose of the Course:

The Purpose of the course is to introduce students to the philosophical foundations of property,
its definition, history, related legal concepts, laws relating to it, institutions tasked with the
implementation of Property Law, and some of the cases on Property Law issues. The course is
also meant to ensure that students have an understanding of the role of the law and lawyers in
property law, particularly on property rights in land and the various protected interests in land.

Expected Learning Outcomes:

By the end of the course, learners should be able to:

1. Define property, explain its attributes and related legal concepts such as rights, possession,
title and ownership;
2. Explain the legal and theoretical bases of property;
3. Distinguish between the different types of property;
4. Explain the origins and historical foundations of the land tenure system in Kenya;
5. Explain the difference between property and other concepts of law such as contract,
succession, equity, intellectual property and torts;
6. Evaluate the constitutional foundations of property rights in Kenya;
7. Identify the different categories of land rights in Kenya;
8. Explain the various proprietary rights to land;
9. Have an understanding of the existing legislation on property rights in Kenya; and
10. Understand how land is alienated and rights to land created, allocated, transferred,
administered and protected in Kenya.

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Course Description

Property theory-concept and history of property; philosophical underpinnings; Kant, Lockean

labour theory, Hegel’s theory of self-expression, Utilitarian theories, Honoré’s incidence,
Hohfeldian analysis; nature of property rights. Types of property – realty, personalty, intangible
property, intellectual property. Classes of property; state property; private property; communal
property; no-property. Property and possession. Content of ownership-Honoré’s analysis.
Fragmentation of ownership; present and future interests; legal and equitable interests. Limitation
of ownership; acquisition and disposition of property interests; derivative and original acquisition
of title. Constitutional foundations; state and property.

Modes of Delivery and Course Requirements

The modes of delivery for the course include lectures, tutorials, case studies, discussion groups,
projects and class presentations. Students are to read the materials listed as essential readings in
the handouts given for each week ahead of the class. Attendance will be monitored and recorded
for each class.

Instructional Materials and/or Equipment

Course materials will be accessible via the e-Learning platform; Kenyan laws and cases are
accessible through the internet on the kenyalaw.org website; Discussion Aids including
PowerPoint Presentations; Chalk/white boards and necessary accompaniments; Library—
readings listed under core readings are available in the library; and E- Journals such as Lexis-Nexis,
Hein Online and JSTOR.

Course Assessment Weighting

Examination 70%
Continuous Assessment Tests 30%
Total 100%

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WEEK 1 & 2: DEFINING PROPERTY—OWNERSHIP, TITLE
& POSSESSION

Essential Readings

Ø T. O. Ojienda, Conveyancing: Principles and Practice (Nairobi: LawAfrica, 2015) Ch 1

Ø G. S. Alexander & EM Penalver, An Introduction to Property Theory (Cambridge: Cambridge
University Press, 2012) Ch 1
Ø James Penner, The Idea of Property in Law (Oxford: Oxford University Press, 2000) Ch 4
Ø Boudewijn Bouckaert, ‘What Is Property’ (1990) 13 Harvard Journal of Law & Public Policy
775
Ø Thomas W. Merrill, ‘Property and the Right to Exclude’ (1998) 77 Nebraska Law Review
730
Ø Morris R. Cohen, ‘Property and Sovereignty’ (1927-1928) 13 Cornell Law Quarterly 8
Ø M. Honoré, ‘Ownership’ in Oxford Essays in Jurisprudence, first series (Ed A Guest, 1961)
Ch 5 <http://fs2.american.edu/dfagel/www/OwnershipSmaller.pdf>
Ø Peter Birks, ‘The Roman Law Concept of Dominium and the Idea of Absolute
Ownership’ (1985) Acta Juridica 1
Ø James Gordley & Ugo Mattei, ‘Protecting Possession’ (1996) 44(2) American Journal of
Comparative Law 293
Ø Luke Rostill, ‘Relative Title and Deemed Ownership in English Personal Property Law’
(2015) 35(1) Oxford Journal of Legal Studies 31
Ø Larissa M. Katz, ‘The Concept of Ownership and the Relativity of Title’ (2011) 2(1)
Jurisprudence 191
Ø N. P. Gravells, Land Law: Text and Materials (London: Sweet & Maxwell, 2004) 1-26
Ø Roger Smith, Property Law (Pearson Education Limited, 2018) 1-15

Outline
1. What is property law?
2. What distinguishes property law from other areas of law?
3. Relationship between property and contract, torts and intellectual property
4. Land law as an element of the law of property
5. Ownership, Title and Possession
a. What is Honoré’s theory of ownership?
6. Role of property in society
7. Questions to Consider

Issues Arising
1. What is property?
Ø Anything that can be owned. Property denotes the condition of being
owned or belonging to a person. Simply put, the law of property deals with
the legal relationship between a think and the owner of the thing (N. P.

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 Gravells, Land Law: Text and Materials (London: Sweet & Maxwell, 2004)
1)
Ø According to James Penner, “the right to property is a right to exclude others from
things which is grounded by the interest we have in the use of things.” (James Penner,
The Idea of Property in Law (Oxford: Oxford University Press, 2000) 71).
Ø A distinction is made between real property (e.g. land and physical things
attached to it, including any buildings thereon, and incorporeal
hereditaments) and personal property (all other kinds of property) and
between tangible property (that which has physical existence e.g. chattels
and land) and intangible property (e.g. choses in action such as
intellectual property) (see Oxford Dictionary of Law).
§ Personal property – used to denote property whereby, the
dispossessed owner can bring a ‘personal action’ (legal) against the
dispossessor who will be require to either return the property or
pay its value to the owner.
§ Hereditaments – used to refer to property
§ Corporeal hereditaments – real property rights which involve
things that are capable of being physically possessed such as land
and physical things attached to it, including any buildings thereon.
§ Incorporeal hereditaments – real property rights in land which
cannot be physically possessed. They include rights of physical
possession in the future and certain proprietary rights over the land
of another person such as easements e.g. rights of way.

§ Chattels – this can be divided into choses in action and choses in

possession. Choses in action related to intangible rights that do
not have a physical existence that can be claimed by e.g. a legal
action and not by taking physical possession e.g. copyright, patent,
debts, bank accounts, a cheque and a share certificate. These are
capable of being sold or transferred. Choses in possession are
tangible rights that can be enjoyed by taking physical possession
of the item itself such as a book, car or furniture.

§ Property law mainly deals with tangible things that can be owned.
§ Victoria Park Racing & Recreation Grounds Co Ltd v Taylor
(1937) –the court refused to recognise a spectacle, being a horse
race, to be considered as property.

§ Can human body parts or cells amount to property? It has long

been stated that there can be no ownership of human body parts
or of corpses. However, in this ever changing and complex world,
there are issues that have emerged relating to human body parts
that need a more nuanced approach. For instance, in Yearworth v
North Bristol NHS Trust [2010] Q. B. 1 where the court was

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 called upon to determine whether semen was property so that the
defendants could be found liable for careless storage causing
damage. Semen/sperms in a sperm bank were held to be property
owned by the men who produced them to give them peace of
mind. In the case, the semen was to be deliberately produced (by
men about to undergo chemotherapy, which had the probability of
affecting their fertility) with a view to later use. It was also held that
the men retained control over use and destruction of the semen.
(See Roger Smith, Property Law (Pearson Education Limited, 2018)
5).

2. What distinguishes property law from other areas of law?

Ø Two elements of property law distinguish it from other areas of law:
1) A key attribute of property is that it can be bought, sold or transferred –
the fact that it is more concerned with the ownership of objects.
Many contracts can be in relation to the purchase of something that is
not property e.g. buying someone’s silence and selling information.
2) The Right to Exclude: the uniqueness of property lies in the exclusion
of others such that an owner of land can prevent others from claiming
rights to it. Property law’s right to exclude others operates to exclude
third parties with no right over a particular property is quite unique to it.
This also applies in relation to claims that are inferior to that of the
owner. For instance:
§ Scenario: An owner of a car may sell it to A on hire purchase and
then proceeds to sell it outright to B. A and B can claim proprietary
rights over the car but A’s rights, being the first in time, will take
priority in any case between them. These types of disputes
dominate much of property law (See Roger Smith, Property Law
(Pearson Education Limited, 2018) 3-4)
§ According to Thomas Merrill the right to exclude is property’s
defining role. He puts it thus:

“the right to exclude others is more than just “one

of the most essential” constituents of property – it
is the sine qua non. Give someone the right to
exclude others from a valued resource, i.e., a
resource that is scarce relative to the human
demand for it, and you give them property. Deny
someone the exclusion right and they do not have
property” (See Thomas W. Merrill, ‘Property and
the Right to Exclude’ (1998) 77 Nebraska Law
Review 730, 730).

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3. Relationship between property and contract, torts and intellectual property
§ It is important to note that not every transaction relating to physical
objects comes under the purview of the law of property. For
instance, as much as a car is a property classified under chattels,
taking a car to a garage for servicing falls under the law of contract
and not under property law. Also, a car owner’s negligent driving
that leads to a fatal road accident falls under the law of torts and
not property law. Nevertheless, torts such as nuisance e.g. where a
water tank in one person’s land bursts and floods a neighbour’s
land (see Rylands v Fletcher [1868] UKHL 1), this may be
relevant to property law but is certainly more of a torts issue.
§ Intellectual property is part of property law. It prohibits the
copying of written material (copyright) without permission e.g.
when a rival newspaper copies an article published by another
newspaper without permission, and the exploitation of others’
inventions (patent) (as much as patents are made public, the law
usually provides a monopoly with respect to it in force for a 20-
year period) by invoking the exclusionary role of property in
relation to a property owner’s use of the said property to the
exclusion of all others ((See Roger Smith, Property Law (Pearson
Education Limited, 2018) 6 & 9-10).

4. Land law as an element of the law of property

Ø Land law deals with the legal relationship between land and the
owner of that land. It is considered one of the most complex elements of
property law because:
Ø (1) Multiplicity of interests –it is common to find more than one
person claiming or having a competing interest with respect to the same
land; (2) ‘the unique immovable and indestructible nature of land means
that that land is capable of sustaining a range of interests and
relationships which do not necessarily compete with each other’; and (3)
since land doesn’t exist in isolation but it usually physically joined to
other land, it’s mostly impossible to consider the relationships that affect
a particular land without taking into account the relationships affecting
the adjoining land (N. P. Gravells, Land Law: Text and Materials (London:
Sweet & Maxwell, 2004) 1)
Ø Scenario: X owns a particular land, but other members of his family
contributed money for its purchase meaning that they also have interests
in terms of a share of the ownership. It turns out that X borrowed a loan
from a bank to meet a portion of the purchase price and he gave the
bank the title deed for the land to hold as security that the loan will be
repaid. This means that the bank has an interest in the land through a
mortgage or charge it will register in its favour. In the event that X fails
to repay the loan amount, the bank will have a right to sell the land to

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 recover the amount of the loan. The land may also be located in an area
solely designated as a residential area. Therefore, X and other residents
in the area will be restricted from using their land for other uses such as
the building of an industrial site. Also, the geography of the residential
area in which X’s land is located may be such that neigbours may have a
right of way (easement or licence) to walk across part of X’s land. X may
likewise agree that another person occupies part of his land through a
lease or licence (a right to land for a certain period). This scenario shows
that land law is concerned with the nature and creation of various
interests and the relationship between such interests.

5. Ownership, Title and Possession

Ø Ownership –
Ø Ius utendi, fruendi, abutendi – this is an old definition of property as
the right to use the thing, have its fruits and to abuse it—the right to use
and abuse the object or right in question.
Ø The Principles, Definitions and Model Rules of the European
Private Law: Draft Common Frame of Reference (DCFR) gives a
fitting definition of ownership, it has it that: “Ownership” is the most
comprehensive right a person, the “owner”, can have over property, including the exclusive
right, so far as consistent with applicable laws or rights granted by the owner, to use,
enjoy, modify, destroy, dispose of and recover the property.
Ø Ownership as the ‘greatest possible interest in a thing which a mature legal system
recognizes’ (A. M. Honore, ‘Ownership’ (1961)
Ø Honoré builds on this definition through his 11 aspects of ownership
model, what he calls, the standard incidents of ownership or the necessary
ingredients in the notion of ownership. Honoré states that these incidents
are essential features of the full concept of property. However, he adds that
the listed incidents ‘though they may together be sufficient, are not
individually necessary conditions for the person of inherence to be
designated the owner of a particular thing’.
Ø What is Honoré’s theory of ownership?
§ Ownership as a ‘bundle of rights’ (A. M. Honore, ‘Ownership’
(1961)
1) The right to possess – having exclusive physical control
2) The right to use – both personal use and enjoyment
3) The right to manage – to decide how and by whom
property is to be used
4) The right to the income of the thing– in relation to reward
for work done on the property such as farm produce, rent
and profits
5) The right to the capital – includes the power to dispose of
and transfer the title to property and the liberty to
consume, waste or destroy the whole or part of it

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 6) The right to security – ability to remain the owner
indefinitely or for a stipulated period of time
7) The rights or incidents of transmissibility – transmission
of the property to owner’s beneficiaries or successors as
inheritance
8) The rights or incidents of absence of term – capability of
continuing to enjoy right to the property for an
indeterminate period of time
9) Prohibition of harmful use – not using the property in a
way that’s harmful to others
10) Liability to execution – property can be taken away to
pay off debts
11) The incident of residuality (residual character) – the
idea that, when lesser interests come to an end, the full
interest in the property reverts to the owner. These consist
of interests less than ownership such as leases and
easements.

Ø Ownership of property should be clearly communicated to the world.

This stops people from wasting their resources on property which they
mistakenly believed is possessed by the wrong person.
Ø Historically, ownership (dominium) emerged from the action of vindicatio
which is where a person could assert that a something is his or hers.
Ø Note: ‘There is rarely an unlimited right to use property: witness the tort
of nuisance and planning permission requirements for land development.
In some cases, an owner may have put it out of his or her power to use
land by creating a short-term right in another person; a lease, for
example’ (Roger Smith, Property Law (Pearson Education Limited, 2018)
7). Also, access to one’s land may necessitate a right of way over a
neighbour’s land.

Ø Possession –
Ø The Principles, Definitions and Model Rules of the European
Private Law: Draft Common Frame of Reference (DCFR) defines
possession as:
(1) Possession, in relation to goods, means having direct physical control or
indirect physical control over the goods.
(2) Direct physical control is physical control which is exercised by the possessor
personally or through a possession-agent exercising such control on behalf of the
possessor (direct possession).
(3) Indirect physical control is physical control which is exercised by means of
another person, a limited-right-possessor (indirect possession).

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 Ø T. O. Ojienda, Conveyancing: Principles and Practice (Nairobi: LawAfrica,
20007) 32-33:
§ ‘The understanding and definition of possession largely remains
contentious.1 It however said to be is a de facto relationship between
a person and a thing. It is a question of fact; it does not necessarily
mean that a person in possession is the owner of the thing in
question.2 To mankind possession of things is an important aspect
of life. Without possession of things in the world it is questionable
whether a person has any liberty or security.3 Indeed, early laws of
property had one objective in mind- that is, the protection of lawful
possession.4 Without such protection, not only would life be
impracticable but also it would lead to a state of chaos and
constant. To the lay mind possession implies some of control or
detention of a thing. The idea of possession as involving detention
is taken by lawyers to suggest that, unlike ownership, which is
essentially a de jure relationship between a person and a thing,
possession is a de facto relationship between a person and a thing.’

Ø Title –
Ø T. O. Ojienda, Conveyancing: Principles and Practice (Nairobi: LawAfrica,
20007) 34-36:
§ “Title is the set of facts upon which a claim to a legal right or
interest is founded, title can exist even when there is no pre-existing
legal interest or right vested in a person who claims he has title.5 In
other words, the facts themselves may lead to a legal right or

1 According to Madan JA in Blakeman v Associated Hotel Management Services Ltd, Civil Appeal No. 45 of 1984,
‘possession’ is a teasing topic whenever it arises. It does not hold one straightforward meaning; it has various meanings different
in different situations so that the ownership of property cannot be affixed with encumbered ease. According to Stable J. in Bank
View Mill Ltd & Others v. Nelson Corporation & Feyer & Co (Nelson) Ltd (1942) 2 All ER 476 at 486 (E &F),’the term
possession is always giving rise to trouble. In the same vein Viscount Jowitt in United States of America and Republic of France v.
Dulfus Mieg et Compagnie, SA & Bank of England (1952) 1 ALL ER 572, “the person having the right to immediate
possession is, however, frequently referred in English law has never worked out a completely logical and exhaustive definition of
“possession”. Parker CJ in Towers & Co Ltd v. Gray (1961) 2 All ER 68 at 71, the learned judge stated, ‘For my part I approach
this case on the basis that the meaning of possession depends on the context in which it is used”.
2 Although it is quite normal for ownership and possession to go hand in hand, it need not be the case. A person may have
possession without having ownership in the thing in question. For example, it is quite possible for a thief to have possession
without ownership. Possession without ownership can also occur lawfully, for example, in the case of a bailment of goods.
3 According to Salmond, ‘possession is the most basic relationship between men and things’. See Salmond, Jurisprudence (12th edn,
1966) at p. 65.speaking of the English system Pollock and Maitland stated that, ‘in the history of our law there is no idea more
cardinal than that of seisin. Even in the law of the present day it plays a part which must be studied by every lawyer; but in the past
it was so important that the whole system of our land law was law about seisin and its consequences’. See Pollock and Maitland,
History of English Law (2nd edn, 1968) at p. 29.
4 In the early law possession was explained through the concept of ‘seisin’, a concept described as lying ‘at the root of the historical

development of English land law’. The idea behind seisin lay in the actual or de facto possession of land, which was determinate of
whether a proprietary right in land was granted. There were no abstract ideas of title and right; instead possession decided whether
a person had a right to land. As such seisin was not a question of right, but rather a question of fact although fact may then lead to
a right through the passage of time. Long sustained possession meant peace and order, and seisin literally denoted quiet and peaceful
enjoyment of land.
5 Professor Ray Goode distinguishes title and interest in the following words, ‘interest is to be distinguished from title. A person’s
interest in an asset denotes the quantum of rights over which he enjoys against other persons, though not necessarily against all
other persons. His title measures the strength of the interest he enjoys in relation to others’. See Ray Goode, Commercial Law
(1982) at p 52.

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 interest enforceable against others.6 According to Lawson and
Rudden, ‘title is a shorthand term used to denote facts which, if
proved, will enable a plaintiff to recover possession or a defendant
to retain possession of a thing’.7 Similarly, Salmond writes, ‘…title
is the de facto antecedent, of which the right is the de jure consequent.
If the law confers a right upon a man which it does not confer
upon another, the reason is that certain facts are true of him which
are not true of the other, and these facts are the title of the right’.8

Title to a proprietary interest can be either absolute or relative. In

the common law tradition titles are more relative than absolute. An
absolute title in property law is one which is indefeasible. A person
alleging an absolute title is basically putting forward a set of facts
which demonstrate that there is in fact only one title- that is, his
title- and that all other titles in respect of the same object are non-
existent or simply bad. An absolute title is one which is indefeasible
in the sense that there is no one else who can point to a better title
in respect of the same object in which a proprietary interest is held.
Since the essence of an absolute title is that there is simply nobody
else with a better title to the same thing, an absolute title will only
arise only if there are sufficient facts which lead to this conclusion.9

A relative title, unlike an absolute title, is one that can be defeated

by a person showing that he or she has a better title to the thing in
question. The idea of relativity of title originates from the nature
of possession in law. Possession in law has the effect of making
ownership a relative concept as opposed to an absolute one.
Possession raises a presumption of ownership and in the absence
of further inquiry a person with possession is deemed to be the
owner.”

6 It is important to appreciate that the use of the word ‘fact’ here is not used to denote mere physical facts. Rather the inquiry is

into the legal facts pertaining to a person standing in relation to some object or asset. In other words, the question can be put, what
is the legal significance of an individual claiming an interest in a thing? In this respect A. Pottage writes: ‘…title is an abstract
quality, which depends upon an interpretation of rights rather than the identification of physical facts’. See ‘Evidencing Ownership’
in Bright and Devar (eds), Land Law: Themes and Perspectives (1998) at p 131.
7 See F.H. Lawson & B. Rudden, The Law of Property, (2nd edn, 1982) at p 44.
8 See Salmond, Jurisprudence (12th edn, 1966) at p 331. It follows from the defition(s) of title that two or more persons may have
independent legal interests in the same thing. For example, both a true owner of an asset and a person with mere possession with
the intention to control can have absolute legal interests in the asset. This legal interest is enforceable against third parties by both
the true owner and a possessor. Whilst they both have identical legal interests, they have titles that are different in nature. The true
owner has a much stronger title than a mere possessor of the chattel. A true owner has an indefeasible title whereas the possessor
has a mere relative title. The strength of the true owner’s title is greater because it cannot be defeated by anyone so long as the true
owner has an intention to control the asset. The title of the possessor is liable to be defeated by the true owner, and thus, whilst he
has a legal interest, his title is a relative one.
9 There are three classical instances in which a person may prove an absolute title. The simplest way to acquire an absolute title is
to create something out of nothing. In this case there can be no other title to the thing other than the one that belongs to the
creator. The creation of a book is a good example: here the creator would protect his absolute title by a copyright, which would
give him exclusive rights in the book. Another way of acquiring an absolute title is by manufacture. In the absence of further
evidence, a person who manufactures something is the first owner and the only owner. Another example of an absolute title is a
registered title. A registered title amounts to a guarantee from a certain body, such as the state, that the person registered as owner
is the owner and that his title is better than any other title.

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Questions to Consider

1. What is the meaning of property?

2. What are the foundations of the law of property in land?
3. What are the jurisprudential questions and concepts underlying the law of property in
land?
4. What are the attributes of property?
5. What is the difference between relative and absolute title to property?
6. What does to own or having title to something mean?
7. Does a landowner have an unlimited right to use the property?
8. What are the rights and obligations arising from property?

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