Brief description of occupation theory.

The theory clearly states that a person taking over any property or land is the owner of it. It
brings about different doctrines such as first occupancy/possession, finders' keepers and prior
occupation. This theory is focused on the matter of private property which brings about
individualistic characters.1 It is also important to note that in this theory primacy was given to
prior possession as seen in the case of Armory V. Delamirie.2
Occupation theory in terms of first occupation gives superior legal rights to occupy and
control to an individual who first occupies property. Being there first and seizing the property
justifies the direct ownership of land.
Who were the original occupiers of Kenyan lands?
As mentioned earlier occupation theory gives superior rights to the occupying party. The
question arising then is, were foreigners first occupants/possessors?
Historical evidence shows us that African lands were already occupied by the natives pre-
colonial period which clearly proves that they (colonial powers) were indeed not the first
occupiers of land and thus had no right to own the property as they did (through adverse
possession) as there was no unoccupied land.
In Kenya’s case, the Brits on colonisation forcefully evicted Kenyans out of their lands,
specifically the high-quality lands, forcing the Kenyans into slavery on the very same lands.
They even imposed their own laws into our lands and further went in to give ownership of
these lands to the Queen.
It is evident then that the British were not originally the occupiers of Kenyan lands and that it
was the native communities of Kenya who had their own customary land laws which were
clearly outlined and enforced.
Some would argue though that in the actions of the British occupying these Kenyan Lands,
they fulfilled an important principle of possession as illustrated in the case of Pierson V.
Post3, the principle of notice to the world through a clear act which the African communities
did not really exhibit. However, was the cultivation, cattle rearing, buildings etc not a clear
sign that the lands were possessed already and were those activities not a clear enough sign of
possession? At that time, it was widely acknowledged by most if not all neighbouring African
communities and beyond Africa that land in certain regions belonged to certain people and
this was the case in Kenya too. Some land in certain areas belonged to the Kikuyu, some to
the Luo and this applied to all communities existing in that time.
Regulation of land.
Land as property is limited and cannot be added and thus enjoyment and access to it must be
regulated due to many reasons that could lead to conflicts.
Article 40 of the coK provides that any person in Kenya has a right to own property.4 This
right however is not absolute and its limitations are recognised in article 65 of the coK;
1
999 year lease Kenya – African Heritage (afrolegends.com) Accessed 6th December, 2022
2
Bell and Parchomvsky A Theory of Property (pg. 543, 21st edition, volume 90)
3
Bell and Parchomvsky A Theory of Property (pg. 543, 21st edition, volume 90)
4
Bell and Parchomvsky A Theory of Property (pg. 543, 21st edition, volume 90)
Article 65 of the constitution.
65., Landholding by non-citizens
(1), A person who is not a citizen may hold land on the basis of leasehold tenure only, and
any such lease, however granted, shall not exceed ninety-nine years.
(2), If a provision of any agreement, deed, conveyance or document of whatever nature
purports to confer on a person who is not a citizen an interest in land greater than a ninety-
nine-year lease, the provision shall be regarded as conferring on the person a ninety-nine-year
leasehold interest, and no more.
This means then that foreigners can not have access to freehold land in Kenya though on
expiration of the ninety-nine-year lease, it can be renewed by the state.
999-year leases were previously the order of the day since 1915 in Kenya and this led to
many conflicts due to the fact that land as property is very emotional to people.
The 999-year lease was granted in the Rift valley region of Kenya by the British colonial
administration to their fellow brothers, ‘early’ British settlers in Kenya.5 The Kenyan
government however years after independence, specifically in 2010 within the new
constitution reduced this period to 99 years as seen in the article 65 above.
View of occupational theory on Article 65.
I will look at this in two ways;
1. The non-citizens in possession of the leasehold land are at that time considered
owners and have superior rights to everyone else apart from the grantor/true owner.
These rights include using, excluding and transferring the land. They are occupiers of
the land and thus should have the right to be protected from any liability or duty that
right confers to them. Possession is nine tenths of the law. This means that the article
65 is wrong in reducing the tenure and limiting their enjoyment of the land. Property
rights though on the other side are not absolute, they are exclusive and can be limited.
2. Occupation theory gives primacy to prior possession/first possession. These non-
citizens are not and have never been original possessors of Kenyan lands. Therefore,
according to occupation theory their enjoyment and access to these lands should be
regulated and limited in a way to favour those who are supposed to have possession in
the first place.

5
Article 40 constitution of Kenya, Protection of right to property.