GEOSPATIAL SCIENCE AND ENGINEERING

UNIT: LAND LAW

LEVEL: DIPLOMA
LECTURER: MAKHETI
Introduction

Definition of the term law

Is a collection of rules for human contact prescribed by human beings for the obedience of human
beings.

Classifications of law

The law can be classified as follows:

 Private law- this is the law that is basically concerned with the rights and duties of persons
towards persons. Examples of this type of law are:
i. Law of tort (controls public nuisance)
ii. Law of contract
iii. Law of property
iv. Law of successions
 Public law- this consist of those fields of law in which the state has an interest, these include:
i. Constitutional law
ii. Administrative law
iii. Criminal law
 International law- this consist of regulation governing two or more states and can be both
private and public.

Sources of law in Kenya

The various sources of law in Kenya are as follows:

i. African Customary law in civil cases in which one or more of the parties is subject to it or
affected by it, so far as its applicable and is not repugnant to justice and morality or
inconsistent with any written law.
ii. Legislation- this includes;
 Acts of the parliament of Kenya
 Specific Acts of the parliament of the united kingdom, cited in the judicature Act
and the law of contract Act (cap 23)
 One Act of the parliament of India (Indian Transfer Of Property Act ITPA)
 English statutes of general application enforced in England on 12 th of August
1897.
iii. Judiciary law
iv. English law
 v. Subsidiary legislation/ delegated legislation
vi. Periodicals and law book
vii. The substance of the common, the doctrines of equity and the statutes of general
application enforced in England on 12th Aug 1987.
viii. Legal journals
ix. Religious doctrines and regulations- discourage bad things like killing and encourage the
good one.
x. Judicial precedency- precedence is something that can persuade you to use, it
encourage from the judiciary persuasive decision and binding decision.

Land law

This is part of the law which deals with the transactions in land e.g.
 acquisition,
 sale and transfer,
 leasing,
 mortgage,
 Charge etc.

Sources of land laws in Kenya

The law concerning land transaction in Kenya is based on the following:

i. African customary law
ii. Order in council e.g. East African Council of 1897
iii. Crown Land Ordinance Act of 1902
iv. The Land Title Act of 1908
v. Government Land Act of 1915
vi. The registration of Title Act of 1920
vii. Registered Land Act of 1963
viii. Land Acquisition Act
ix. Land Control Act
x. Land Planning Act
xi. Land Adjudication Act
xii. Land Consolidation Act
xiii. Agricultural Act
xiv. Registration of Document Act
xv. Stamp Duty Act
xvi. Law of Succession Act

Land
Land can be defined under the following headings
a) Land as a property
b) Land as a legal concept
c) Land as a fixture
 d) Land in the lay man’s language
e) Land to a profession

A. Land as a property

Property is taken as that which can be owned and the owner has a right to use it, misuse it and
exploit its fruits. This concept of use and misuse is known as “Usus Abusus Fructus” meaning the
right to use, make abuse of and enjoy its fruits, what is owned can be tangible or intangible hence
the word property is built in the following ways:

i. Real property. This includes immovable things that cannot be taken from place to place, land
being immovable indestructible asset is unmovable asset.
ii. Personal property- this consist of movable or intangible asset as far as land is concerned,
interests such as leasehold, mortgages, charges etc. are examples of personal property.

In this case land is defined as real or personal property depending on the interest subsisting on
it.

B. Land as a legal concept

Various acts of parliament have attempted to define and explain the meaning of land- this statutory
definition of land is found in the following;

i. Indian Transfer of Property Act (ITPA).

In this act land has been defined as property which is “immovable and does not include
standing timber, growing crops or grass”.

It also defines land as immovable property as that which include things attached to the
earth. The word “Attached” meaning what is so imbedded for the permanent beneficial
enjoyment of that to which is attached.

ii. Registration of Titles Act (RTA) 1920

Under this act land include Land itself and benefits to arise out of it or things imbedded
for permanent beneficial enjoyment of that to which it is so imbedded or permanently
fixed to anything so imbedded, rooted or attached

iii. Registered Land Act (RLA) 1963

Here land is defined as that which include; land covered with water, all things growing
on land and buildings and other things permanently affixed to land.

C. Land as a fixture
 Fixture means any physical property that is permanently attached/fixed to real property e.g.
buildings, trees etc.

Anything which is permanently attached or fixed to the soil passes with it as land. That which is
attached to land can only be termed as a fixture depending upon the following:

 The degree of annexation or attachment

 The object or reason of an annexation or attachment
 Under Indian transfer of property act:
a) Rooted in the earth as in the case of trees and shrubs
b) Imbedded in the earth as in the case of walls and buildings
c) Attached to what is so imbedded for the permanent beneficial enjoyment of
that which it is attached for.
D. Land in the layman’s language

Land is simply a surface or space for human activity as reflected in many different forms of land
uses. Some of human activities are in the form of rights that includes;

 Air rights
 Agricultural rights
 Rights to minerals
 Rights to water
 Rights to light
 A right to shelter
 Burial rights
 Shrines of prayer
E. Land to a professional

Professional land users define land depending on their professionals. To a land surveyor, it is
the surface upon which he places beacons to create boundaries for various parcels.

To a physical geographer, it is a surface which is a product of geological and geomorphological

process (landscape).

To an economist, land is a resource which, along with capital and labour, can be exploited or
conserved in order to achieve economical production and development.

To a lawyer, land is a volume of space stretching from the centre of the earth to infinite, the
sky being the limit, and associated with it are a variety of rights that may determine what can
be done on it.
Land tenure system

Is the period or right of holding or using land strictly the period over which land is held or enjoyed is
known as “estate”. There are various types of estate in land some of which are illustrated as follows:

ESTATE

FREEHOLD LEASEHOLD

FREEHOLD INHERITANCE FREEHOLD NOT FIXED TERM AT WILL PERIODIC SUFRANCE ESTOPEL

FOR INHERITENCE

FEE SIMPLE FEE TAIL FOR LIFE PUR AUTRIE VIE

From the above illustrations there are two main estates of land that is Freehold and Leasehold estates.

Freehold estate

Are also known as primary interests in land, they have no time limit. A person holding a freehold estate
of land owns it for life and the life of the descendants. Freehold estates are divided into two categories;

i. freehold estate of inheritance

ii. freehold estate not of inheritance

Freehold estate of inheritance

They are categorized as follows:

i. fee simple estate

This is the largest estate in term of duration. The term “fee” means inheritability while “simple”
means that the estate is inheritable by general heirs. The estate is everlasting because it
continues as long as a person entitled for the time being as heirs at the time of death
ii. fee tail
This is an inheritable estate that lasts provided the original grantee or any of his descendants are
alive. They are restricted to body survivors only. In general if the owner of an inheritable free tail
estate dies without the survivors the land passes back to the government being the ultimate
owner
 Freehold estate not of inheritance

Freehold estates that are not of inheritance are as follows:

i. estate for life

These are estates in land that lasts as long as the grantee lives or is alive, it ends with the death
of the grantee and hence not inheritable by his body survivors.
ii. Estate for pur autrie vie
These are life estates in which the right to the estate exist over the period of another’s life. The
enjoyment of such an estate terminates on the death of another person who is not a grantor.

RIGHTS OF A FREEHOLD OWNER

Fee simple estate being the largest estate that can be enjoyed in land has many rights that are
associated with some of these rights:

i. Natural rights
A fee simple owner has the;

a) Right of support
b) Right to free and unpolluted flow of air
c) Right to water
ii. Right of alienation

This is the right to dispose the land in a manner one chooses which include
a) Selling
b) Leasing
c) Charging
d) Mortgaging
iii. Right of enjoyment
The rights to enjoy are extensive, physically the fee simple owner enjoys everything on, beneath
and above the land.

RESTRICTIONS OR LIMITATIONS ON THE RIGHTS OF A FEE SIMPLE OWNER

 Any sudden accretion e.g. increase in land from the sea of a substantial size belongs to
the government
 The foreshore that is land between high and low water mark belongs to the government
 The air space up to a reasonable height belongs to the owner, no action can be taken
against a jet for passing over property at a reasonable height

RIGHTS OF OTHERS OVER LAND

Third parties have claims over land belonging to a fee simple owner some of which are
 i. Easements
ii. Mortgages
iii. Leases
iv. Cautions
v. Restrictions
vi. Way leaves

Stationary restrictions

These are restrictions to the rights of a fee simple owner arising due to the operation of the law
e.g. do something before burial, agricultural etc. most of the rules are Town and Country
Planning Act, Public Health Act, Agricultural Act, Land Control Act etc.

Treasure stove

Something valuable that can be found on land, when found on land belonging to a fee simple
owner, it belongs to the government. A treasure stove includes the following;
a) Anything consisting of Gold and Silver
b) Anything hidden in or on land deliberately and not lost
c) Anything of value found on land with the owner being unknown

Minerals
Generally minerals belong to the fee simple owner at common law although statutes
have the right such that minerals such as Silver, Gold, Coal and Petroleum, Crude oil
belongs to the government

Wild animals
A fee simple owner cannot be said to own wild animals found on the land but he can be
allowed to catch and kill when necessary. Some species of birds and animals are
protected by the law.

Liability in tort
While exercising his right over land, a fee simple owner must not interfere with legal
rights of other. Liability in tort may arise under the following;
 Where a nuisance is caused e.g. noise or smell (odour)
 Escape to another land by say animal or water

Fishing rights
In non-tidal waters a fee simple owns exclusive rights to fish. It can also be granted to others
such as fishing clubs. In tidal waters the public has a right to fish up to the point of ebb and flow
of the tide

River bed rights

 The owner of the land through which a non-tide river flows owns the river bed, where a river
separates two plots of land each owner has a right to the river’s Centre line. All title rivers
belongs to the government.

Water rights
These are rights to extract water that flows or percolates through the land. These rights are
generated by the water acts. A license to extract such water must be obtained from a water
authority or ministry of water.

Chattels found on the land

Generally, the owner of the land over which he is in control has the best claim to valuable items
found under or attached to the land where the true owner cannot be found. Where an item is
found on the surface of the land, the finder may have a better claim.

LEGAL RECOGNITION OF FEE SIMPLE ESTATES

Fee simple estate or absolute proprietorship are recognized under the following statutes:

 ITPA (INDIAN TRANSFER OF PROPERTY ACT)

Under ITPA, Freehold Estates are known as “Fee Simple Estate”. They’re registered under;
a) Land Title Act 1908
This was done under general boundaries by use of chain hence chain survey.
b) Government Land Act 1915
Brought about fixed boundaries that led to triangulation survey which involved both
bearings and distances.
c) Registration Title Act (RTA) 1920
Came in place to support GLA in recognition of Title Act, RTA in conjunction with survey
Act of 1923 to issue supportive documents.
d) Registered Land Act RLA 1963
It came in force in 1963 to soften RTA and survey Act from fixed boundaries to general
boundaries. Under RLA, these estates are known as absolute proprietorship.

Fee simple estates are created through;

 Inheritance by law of succession
 Government grant (Allocation)
 Sale and transfer
 Gift (should be complete in itself once given for enjoyment)

LEASE HOLD ESTATES

They’re known as secondary interest in land because they derive their existence from primary or free
hold estates.

They’re estates in land for a specified period of time, the owner of the estate is known as
Lessor/Landlord while the one enjoying the estate is known as Lessee/Tenant.
The agreement between the parties is known as a lease contract. The lessee or tenant pays some
valuable consideration known as Rent to the landlord or lessor at a specified interval of time.

Lease hold estates are classified as follows;

i. FIXED TERM ESTATES OR LEASES

These are leases for a fixed period of time say 2 years, 99 years or 999 years etc. they are
subject to conditions and covenants regulating the rights and duties of the parties involved.
ii. PERIODIC LEASES OR ESTATES
These are leases or tenants whose periods is not fixed but renew themselves over a period of
time as long as the conditions or terms are observed by all parties. The period over which rent is
paid can be said to be the period of the term of the lease.

Under RLA a periodic tenancy is defined as a tenant from year to year, ½ year to ½ year etc.
Under ITPA, a periodic tenancy is that from year to year in respect to agricultural land or
manufacturing tenancies or from month to month for their purposes.

A periodic lease or tenancy comes an end only if specific conditions have not been compiled
with.
iii. TENANCY AT WILL
This is where the tenant is allowed possession by the express permission of the landlord for no
period or rent is specified.

The lessor/landlord reserves the right of evicting the tenant from the premises at any time and
no notice is required.

Termination can also be through implication on either party, also death by either party bring the
tenancy to an end.
iv. TENANCY AT SUFFERANCE
This is the smallest estate known/enjoyed in law. It occurs where a tenant remains on a land
after the expiry of the lease. It happens where a person comes into the possession of land by
lawful means but continues to enjoy that land after losing the legal entry.

A tenant at sufferance differs from a tress-passer because of the original entry which was legal
and from the tenant at will in that his continued stay is without the consent of the landlord.
v. TENANCY AT ESTOPPEL
When a landlord who holds no legal estate on the land grants a lease to a tenant, the lease so
created is known as tenancy at estoppel.

When the landlord later obtains a legal estate he will be estopped or prevented from denying
the tenancy.

SQUATERSHIP
This is a tenure system where enjoyment is obtained illegally but allowed or tolerated.
Termination of the enjoyment can be done with or without notice.
 Legal ownership can be obtained through the “high court” if quietly enjoyment is proved over a
period of 12 years by invoking the limitation of actions acts. This can only be possible on private
land but not on government land.

TEMPORARY OCCUPATION
This is a tenure system through issuance of a temporary occupation license or permission. The
term of enjoyment may or may not specified but conditions are attached on the enjoyment and
the breach of any determines or terminates the enjoyment. The most important condition is not
to put up any permanent structure on the land so occupied.

OWNERSHIP AND CO-OWNERSHIP

CONCEPTS OF OWNERSHIP
ULTIMATE OWNERSHIP
Can also be referred to us absolute or complete ownership. This kind of ownership can be
vested in the state or government under which the land being owned falls. Ultimate/complete
or absolute ownership of land can be obtained as follows:
a) Through inheritance under customary law.
b) Through government grant
c) Through first registration after adjudication
d) Through sale and transfer

Ultimate ownership can be terminated when the owner dies without a will or without heirs or survivors.
In this case the land passes back to the government as a vacant (Boma Vacantia).

COMMUNAL OWNERSHIP/TENANCY UNDER CUSTOMARY LAW

Customary land law may differ from country to country, tribe to tribe and even clan to clan. Generally
law of ownership is vested in the community, it can be said that;

i. In the earliest stage the land and its produce is shared by the community as a whole.
ii. Later the produce is the property of the family or individual whose toil is one.
iii. Control of land is vested in the head of the family.

On the tribal stage or level, the control of land is passed by the chief who allocates an unoccupied land
at his will without despising any person or family who is using it at that particular time.

The rights to land that were communally enjoyed are;

i. Right to grazing land

ii. Right to watering point
iii. Right to salt licks

In a communal land ownership, an individual/person;

 May or may not pay fee for enjoyment of his parcel of land
  Is accountable for non-use or improper use of the land parcel that may result into forfeiture of
the land and its subsequence re-allocation to some other member of the community.
 Has power to allocate a piece of land to a member of his family or tribe but has no right to sell it
as if it were his own.
 His interest in land can be inherited by his survivors.
 His occupation of land is for undefined period and the use under which the land is put is not
specified.
 Has a right to evict tress-passers.

Advantages of communal ownership

 Every member of the community has a right in fair share of land

 As long as there was no sufficient land was no likewise of squarttership of people
 Every member had a sense of future of security
 In times of unemployment or in old age an individual could always return to his land and start
doing something there.
 Unused land is reverted to the community as a trustee for rehabilitation.

Disadvantages

 With increasing pressure on available land, it becomes scarce and develops into a wastage.
 Since the individual has no financial stake, there is little incentive
 Lack of security of title diminishes the chance of borrowing money for improving the use of land.

BUNDLES CONCEPTS OF LAND OWNERSHIP

Land rights have been described as a bundle of sticks, each stick representing something which may be
done by the land. Each individual stick defines a way in which the land may be used, the profit may
derive from it or the manner in which some or all of the rights may be disposed off by the way of
transfer to other people or organization.

This means that one person may own the overall rights, but may have to allow other to lease the land
and to use it for a defined period of time.

Another person may be allowed to take the fish from the river that passes through the land while other
to walk over the land by right of way and other to pipe sewage from one side of land to other.

JOINT OWNERSHIP OR JOINED TENANCY

 Under this type of ownership, two or more persons own one piece of land whereby all the
owners are treated as one.
 Between this owners themselves, they have separate rights. The main favorite of this principle
of “JUS ACCRESCEND” meaning the right of survivorship whereby when one of the joined
owners dies his rights passes to the member who now becomes the sole owner.
 The rules intestacy do not apply in joined ownership when a joined tenant dies intestate as a
result a joined tenant passes nothing to his heirs or survivors.

THE UNITIES OF JOINT OWNERSHIP

The four unities that must present in a joint tenancy are;

i. Unity of title
The title created by one document e.g. by an initial grant or instrument of transfer.
ii. Unity of time
The estate of one joined tenant is the same as that of the other at the same time.
iii. Unity of possession
Each joint tenant possess all the four corners of the plot and all the brick that make the house.
iv. Unity of interest
There can be no joint ownership where one holds a leasehold and another one hold a fee simple
or absolute ownership.

COMMON OWNERSHIP/ TENANCY IN COMMON

This is where two or more people own a piece of land or property whereby their shares are known to
individual.

A tenant in common is able to alleviate or separate his share meaning that the share is fixed through i.e.
not divided.

The fixed share of a tenant in common, on his death, passes to his heirs or survivors whether by will or
through the law of succession. It means that the principle JUS-ACCRESCENDIVE does not apply in the
case of tenancy in common.

The shares of tenancy in common may be equal or unequal. This kind of ownership is common in
business relationship.

The only unit that exists in common ownership is the unity of title.

CO-OWNERSHIP UNDER RLA AND ITPA

Co-ownership being either joined or ownership in common is recognized in laws of Kenya.

The registered land act (RLA) recognizes ownership in the following section;

Under RLA;

 Section 101 (1)

It states that land is an instrument made up in paper or two more persons is registrable and its
registration shall show the following;
a) Where such persons are joined proprietors in common……………………………..
b) Where they are proprietor in common, they share……………………
 Section 102(1)
 The section states the basic characteristics of a joined ownership and severance of the
same or ending the same.
 These characteristics are stated in section 102 (1) as; where land, lease or charge is
owned jointly, no one proprietor is entitled to any separate share in the land lease or
charge and hence;
a) Disposition may be made only by all joined proprietors.
 b) On the death of a joined (proprietor) his interest shall vest on surviving
proprietor jointly.
 Section 102(2)
States that for avoidance of any doubt;
I. The sole proprietor of any land, lease or charge may transfer the same to himself and
another person jointly.
II. A joint proprietor of any land lease or charge may transfer his interest to any other
proprietor.

 Section 101(3)
It states that joined proprietors who are trustees can execute an instrument in the prescribed
form that they have agreed to serve or end the joined proprietor and such severance can be
computed by registration of joined proprietors in common after filling the instrument’
 Section 103
Deals with tenancy in common/proprietorship in common.
 Section 103(1)
States that where any land, lease or charge is owned in common, each proprietor can shall be
entitled to an individual share in the whole and on death of a proprietor his share shall be
administered as part of his estate.
 Sections 104 and 106
Prescribe the procedure of partitioning the land held in common and for converting a joint
tenancy into a tenancy in common.
 Section 118
Prove of death of a joint tenant to be produced to land registrar to prove the survivorship of the
principle of “JUS ACCRESCEND”. The section also states that if one or two or more joint
proprietors of a land lease or charge were to die the registrar on prove of his satisfaction of the
death shall delete the name of the deceased from the registrar.

Under ITPA
 The Indian Transfer of Property Act doesn’t directly refer to joint tenancy or tenancy in
common, it only brings about comparable situation in sections 44, 45 and 46.
 Section 44 allows a tenant in common to sale his share.
 Section 45 provides that if there is a purchase by two or more persons, they share the
property in the shares purchase money.
 Section 46 states that, on a sale the process*are divided in accordance with the shares
they held in a property. If no evidence on how the money was contributed is available,
the decision on whether its joint tenant or tenant in common.

LAND TRANSACTIONS

ALIENATION

This is the process by which the government sets apart the land for the purpose of leasing
out or allocating it to its citizens in the form of new grants. Alienated land then means that
the government land which has been leased to people and letter of allotment given out.
The process of alienating government land in Kenya is as follows;

1) Planning
Planning is the process of allocating or zoning land according to land uses.

According to the physical planning and the town planning and development Act, no
leases for period of exceeding one year for time of building may be granted without
an approved physical planning or town planning scheme and where this is missing a
development plan is required.

Development for Part Development Plans

Development plans may be either total or partial. Total development plans are
those covering large areas and they are for medium or long term uses. Partial or
part development plans are those of day to day operations hence cover small areas.

Both total and partial development plans are prepared on cadastral backgrounds
which are prepared by the director of surveys or any other authority, they show the
proposed layout of the plots, roads, streets, reservations etc.
2) ALLOCATION AND ALLOTMENT
Under the government land Act (GLA) and the constitution, the president has been
given powers to allocate land. This powers are delegated to the commissioner of
lands in the following cases:
a. For religious, charitable, education or sports purposes
b. For town planning on the recommendation on the town planning authority
c. The sale of small remnants of the lands in the city of Nairobi and Mombasa
municipality acquired for town planning purposes
d. For the use of local authorities for municipal or district purposes such as
office accommodation, town homes, public parks, slaughter houses etc.
e. The extension of the existing township leases on fulfilment of the
conditions specified.
f. The temporary occupation of farm lands on grazing licenses terminable at a
notice.
g. The sale of farm and plots which have been offered for auction and
remained unsold.

LETTER OF ALLOTMENT (OFFER)

This is a letter of offer that the allottee is given. The allottee is deemed to have
accepted the grant or offer when he/she signs and accepts the conditions contained
in it as well as payment of;
 Stand premium/ stamp duty
 Land rent
 Survey fees
 Registration fees
 SURVEY
Once the grant is accepted, the director of surveys is requested by the
commissioner of lands to undertake the survey. The part development plan (PDP)
showing the plot is attached to a copy of the allotment letter that is sent to the
director of surveys. The director of surveys then prepares the cadastral background
of the development plan which forms a data book (DB) given a number. The field
staff is then requested to carry out the survey by the director of surveys or the
allottee makes his own with a private surveyor of his own choice to carry out survey
works.

The survey work is carried out as stipulated under the survey Act.

CHECKING AND REGISTRATION

After the completion of the field work , the field notes are reduced computed and
plotted. The compiled record is submitted to the director of surveys for indexing and
cross-referencing
NB- files consists of; field notes, computations, FR plans.

The documents are then preliminarily checked followed by final checking in

accordance with the checkers guide, they are then submitted to authenticating
officer who examines the documents for corrections. If found satisfactory they are
given approval and then registered under any of the following legal provisions:
 Registration of titles Act
 Government Lands Act
 Registered Land Act

NB- INTENT – is a request from the lands office requesting for preparation of
Deed plan. This is done after approval.

LAND ACQUISITION
Acquisition is a process whereby one gets ownership right in land either belonging
to one another, community or government.

The government can also acquire land belonging either to a registered individuals or
group of persons for public purposes. Individual acquisition can occur under
prescription or adverse possession as stipulated in the limitation of Actions Act.

 NB-prescription – is long term usage up to 20years

 Adverse possession- it occurs when one stays on your land without your permission (happens
when one is welcomed to live in the land for a specific period of time but when it expires the
person continues to live, if it goes beyond 12years, he becomes a legal owner through the high
court.
Land belonging to a community under customary law can be acquired through the process of
adjudication under the land adjudication Act. The government on the either can compulsorily acquire
land from its registered citizens by enforcing the land acquisition Act.

COMPULSORY ACQUISITION OF LAND UNDER THE LAND ACQUISITION ACT AND THE CONSTITUTION.

The constitution of kenya gives the following as the conditions under which land can be compulsorily
acquired:

1. The taking over must be necessary in the interest of:

I. Defense
II. Public safety
III. Public order
IV. Public morality
V. Public health
VI. Town and country planning
VII. Development or utilization of land in such a way as to promote public benefit
2. The necessity must be in such a way as to justify any hardship to the owner for a person
interested.
3. Provision must be made for the prompt payment of full compensation.

COMPULOSARY ACQUISITION UNDER THE LAND ACQUISITION ACT CAP 295

This Act gives provision for compulsory acquisition of land for public benefit on prompt payment of full
compensation.

ACQUISITION PROCEDURE

Under both constitution and the land acquisition Act, the procedure for compulsory land acquisition is
as follows:

1. GAZATTEE NOTICE
Whenever the minister for lands is satisfied that need has arisen for acquiring land, the
commissioner of lands will publish a notice in the Kenya gazattee. A copy of such notice will be
given to every person who appears to be interested in the land. By this notice the interested
persons are required to respond through application of their claims in land.
2. APPLICATIONS
After 21 days from the date of the gazattee notice, the commissioner of lands appoint a
committee and a date for holding of any inquiry into the claims for compensation by persons
interested in the land.
3. SURVEY
The land so acquired will be surveyed so as to determine its acreage. It will then be valued to
determine its market value any other developments will also be valued to arrive at the total
amount of compensation.
4. PAYMENT OF COMPENSATION
Both the constitution and the land acquisition Act provide that full compensation will be paid
promptly. In this connection, the commissioner of lands will publish a notice showing the
amount of compensation, the area of land so acquired and its value.
 NB
 FULL-value of land +development+damages
 PROMPT- timely ensure not loosing
 ADEQUATE- satisfactory acceptable to the interested parties
A copy of this notice will be given to each of the interested persons. Compensation will then be
paid promptly.
5. REGISTRATION
After payment of compensation, the commissioner of lands then informs those interested
persons through a written notice the date on which the land will officially become government
land. Those who had been registered are required to surrender their title deed to the land
registrar for cancellation and renewal.

DISPUTES ARISING FROM COMPULOSARY ACQUISITION

People or owner whose land is threatened to acquisition can challenge the government on the
grounds that:
 The land is being acquired illegally
 The amount of compensation is inadequate

ILLEGALLITY OF LAND BEING ACQUIRED

If it comes to the knowledge of any interested party that his/her land is being acquired illegally,
that the purpose of the acquisition does not benefit the public, that interested person can take
an action to the high court to obtain an order of prohibition to restrain the commissioner of land
from acquiring the land. The high court action can be during the acquisition process or after.

DISPUTES AS TO COMPENSATION
There arise two areas that may lead to a dispute the government and an individual as regards
compensation. These areas are:
 The promptness of compensation
 The amount of compensation

PROMPTNESS OF COMPENSATION
Where the government delays in paying compensation after the process is over, the inured or
aggrieved parties can go to high court to order the commissioner of lands to pay them without
further delay because it is their constitutional rights.

AMOUNT OF COMPENSATION
The law provides that to any person who has lost his land through compulsory acquisition
should be full based on market price. The market price is taken as that of willing buyer willing
seller basis. In arriving at the amount of compensation the following factors are taken into
consideration:
1) The damage sustained or likely to be sustained by a person whose land is acquired if
the acquisition results into injury to his or other property e.g. demolish of dwelling
houses.
2) The damage sustained or to be sustained by a person whose land is acquired in
situations where such land is cut off from his other land e.g. highway running in the
middle of his land.
3) The expenses incurred by a person whose land is acquired if the acquisition forces
him to change his residence or place of business.
4) The damage that occurs as a result of the publication in the gazette of the notice of
intention to acquire the land if the notice reduces the profits from the land from the
time of its publication to the time of acquisition.

A person who is not satisfied with the amount of compensation paid to him can
appeal to the high court against the award. The awarded amount will be compared
with the claim made in the application and a ruling given appropriately.

SUBDIVISION
This is the process of changing the boundaries and hence the acreage of a parcel of
land. The process is covered by the following legal:
 Land planning Act
 Town planning Act
 Government land Act
 Survey Act
 Land title Act
 Registration of title Act
 Registered land Act
 Land adjudication Act
 Land consolidation

SUBDISION UNDER THE LAND PLANNING ACT

This is a use as well as a development Act. It provides that for one to carry out any
development within an existing planning area, consent must be obtained from the
central planning authority without this consent, the planning so carried out is illegal.
Under the Act, subdivision is taken to mean disposition or parting the possession of
a part of the land.

Acquiring as well obtaining possession of part of a given land is also taken to mean
subdivision under the Act.

APPLICATION
Any person acquiring development under the Act should apply to the existing
planning authority for the area or to central planning authority for consent.

The plan should indicate the intention of the applicant. The application should
show:
 Principal and secondary access roads
 Any public purposes that may be found on the proposed development.
Under this Act, the surveyor or any other person preparing the plan for the purpose of
development should confirm the nature of the purposed subdivision requirements as well as the
land use. Seven copies of the plan proposal are prepared for coastal region accompanied with a
letter describing the nature of all the relevant details of the proposed developments, the
records together with a completed water questionnaire are submitted to the commissioner of
land. Proposed development plan consists of:
 Plan
 A written statement
 Water requirement
The plans should show the following:
 Means of access
 Sanitation proposals
 New building locations
 Relationship of details with other building in the neighborhood
The commissioner of land will then circulate the plans to all members of the central planning
authority if satisfied with the proposal will give will give consent for subdivision to go ahead.

SUBDIVISION UNDER THE GOVERNMENT LANDS ACT

The Act provides that every lessee shall not divide or assign any plot or part of it without the
written consent of the president or the commissioner of land.

Every proposal to be subdivided of a lease hold that has been issued under this Act must
referred to the commissioner of land to approve.

Sub divisional plans illustrating the sources of water supply, means of access and the nature of
the sub division should be prepared and submitted to the commissioner of lands with a covering
letter. The commissioner of lands circulates documents to the relevant authorities for
commends and recommendations on conditions to be compiled with by the lessee. Once the
commissioner of lands is satisfied with the plans, consent for subdivision is given.

SUB DIVISION UNDER THE TOWN PLANNING ACT

The commissioner of land is the executive authority for all township and municipalities apart
from certain portions of Mombasa and the city of Nairobi. The city council is the preparatory
authority for the case of Nairobi area. The city council recommends approval to the
commissioner of lands as the executive authority. In applying for subdivision consent, two
copies of the plan (one linen and another on Dura film) for the area of Mombasa town planning
scheme, Four(4) copies of the plan (one on linen and the rest on Dura film) for Nairobi area and
four copies or in special circumstances five copies for other are prepared.

The plans are submitted to the commissioner of land who consent after consultation.