MOI UNIVERSITY

SCHOOL OF LAW, ANNEX CAMPUS

FLB 204

PROPERTY LAW I

ACADEMIC YEAR: 2022/23

COURSE INSTRUCTOR: MR. ODUNDO

ABRIDGED CLASS NOTES

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1.1 Introduction to Property

Source: www.study.com

Property includes certain conceptual terms which are Property rights and Personal rights.
Property rights are rights in rem while Personal rights are rights in personam. Right in Rem
means the right not to have your land, buildings, or other possessions interfered with; the
right not to be caused physical harm by another person. This right is available against the
whole world e.g. if you have a house the whole world has a duty not to interfere withyour
possession. There should be no disturbance with quiet possession and enjoyment of the
house. Rem is negative in nature commands restrain from infringement.

Rights in Personam on the other hand are available only against a specific person. This right
protects an interest solely against determinate individuals.

E.g. If a landlord rents out a house to tenant; the landlord has a right to receive rent from
the tenant. This right to receive the rent from the tenant ispersonal and the rest of the
world has no obligation to payment.

Definitions

Property: signifies dominion or right of use, control, and disposition which

one may lawfully exercise over things, objects, orland. Property is
classified into real and personal property

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Real property: generally refers to land.

Land: includes not only the face of the earth but everything of a
permanent nature over or under it. This includes structures and
minerals. In sum it entails interests in land& fixtures or structures
upon the land. It incorporates more than something physical – the
soil, the grass, the trees, the buildings etc. Land includes freehold
estates, non-freehold estates, and concurrent estates. (Others-
future interests, specialty estates, & incorporeal interests).

Freehold estate: confer a bundle of rights exercisable for an indefiniteperiod

of time.

Non-freehold estates: property interests of limited duration.

Concurrent estates: property is owned or possessed by two or more

individuals simultaneously.

Personal property:
All that is the subject of ownership but does not come
under the denomination of real property. It is a rightor interest
that an individual has in movable property. It is not REAL
PROPERTY but includes goods and chattels as well as
leaseholds and land, whetherfreehold or leasehold, held on
trust for sale and conversion into money. It can be
tangible or corporeal/ or intangible or incorporeal.

Tangible or ‘corporeal’: this is the right of ownership of material things-

chattels or goods, animals, jewelry.

Intangible or ‘incorporeal’: property that lacks physical existence and

‘choses in action).

Charge: An interest in land as security for the payment of

money/monies or the fulfillment of anycondition.

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Choses in action: refer to copyright and intellectual property
rights, stocks shares in a corporation, beneficial rights
in trust property, rights in superannuation and some
contractual rights, including debts and business good
will.

Intangible rights are created by law while tangible things exist independentlyof law but law
governs rights of ownership and possession in them—including whether they can be
‘owned’ at all.

Intellectual Property- (IP) entails many creations. It refers to a number

of distinct types of creations of the mind for whichproperty
rights are recognized & granted protection under the law.
IP rights conferred on musical, literary, and artistic works;
discoveries and inventions; and words, phrases, symbols,
anddesigns. IP is classified under patents,trademarks, copy
rights and designs.

Landlord: The owner of property who rents it out to anotherfor a

fee.

Tenant: an individual who rents land from the owner forhis

own use.

In law, the term ‘property’ is used to describe types of rights and rights in relation to things.
Property involves bundle of rights which acknowledges thatrights in things can be split: e.g.
between rights recognized at common law (‘legal’ interests) and those recognized in equity
(‘equitable’ or ‘beneficial’ interests); or between an owner as Lessor and a tenant as lessee.

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Source: Market Business News

A ‘property right’ may take different forms depending on the type of property. Implicit
property rights: include the right to use or enjoy the property, the right to exclude others,
and the right to sell or give away. Property rights depend on the statutory framework of
laws and property rights affecting the particular type of property: e.g. the system of land
tenure in a particular stateor territory, or a scheme.

Land and goods may be possessed by someone other than the lawful owner.Property rights
in terms of ownership must be distinguished from mere possession of the land or goods.

The Black’s Law Dictionary defines possession as the act of having or holdingproperty in
one’s power, exercising dominion over property, or the right underwhich an individual may
exercise power over something to the exclusion of all others. Possession entitles the
possessor certain rights to:

◆ Continue peaceful possession against everyone except someone havinga superior

right;

◆ Recover a chattel that has been wrongfully taken; &

◆ Recover damages against wrongdoers.

Possession requires a degree of actual control over the object, coupled with the intent to
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possess and exclude others. It is classified into actual and constructive possession. Actual
possession is the physical occupancy orcontrol over property while Constructive possession
is the control or dominionover property without actual possession or custody of it.

Possession gives rise to qualified legal rights, and contractual rights affectingthe property.
A tenancy of land gives the tenant rights that are proprietary innature as well as possessory.
Laws that limit what a landowner can do, e.g bycreating rights in others in the same land,
may give rise to arguments about compensation when land is compulsorily acquired by the
state from the owner.

1.2 Fixtures

This is a class of corporeal property. It is a principle in law that any chattels attached to
land, become part of the land and are known as fixtures. It is expressed in the Latin maxim
as Quicquid plantatur solo, solo credit (whateveris attached to the soil becomes part of it).

At common law, fixtures were deemed to be part of the land and could not beremoved.
However, this principle was modified and certain categories of fixtures could be removed
for example:

• Trade fixtures to enable a tenant carry out his trade;

• Ornamental and domestic features if they did not cause substantialdamage to

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 land; and
• Agricultural fixtures could be removed from 1948.

Thus any property that is attached to land or part of a building and that is regarded as an
irremovable part of the real property e.g. fire furnace are considered as FIXTURES.
Distinction between Chattel and Fixture

Chattels are items of personal property while a fixture always belong to the land owner
whereas a chattel may belong to another person e.g. tenant

1.3 The reach of property rights

The law and equity have established what property interest takes priority overanother in
given circumstances, regulating competing property interests.

Some circumstance involve a ‘loser’ in the sense of someone losing out in a contest of
proprietary rights (rights in rem), and being relegated in such circumstances to whatever
rights may be pursued against the individuals concerned (rights in personam)- (C Reinold
Noyes).

Other Circumstances

➢ The priority of the bona fide purchaser of a legal estate for value without notice
of a prior equitable interest;

➢ The indefeasibility of registered interests

➢ The effect of registration on priority of registered security interests in personal

property

➢ The doctrine of fixtures, in which items of personal property—chattels—may lose

their quality as personal property and become part of the land.

➢ The operation of statutory limitation over time –adverse possession

➢ How far the title of a landowner extends in the air above and the earthbelow. E.g
subterranean caves, treasures and minerals have tested thelimits below the surface.
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In Sum, property includes money and other tangible things of value, as well any intangible
rights considered as a source or element of income or wealth.It entails the right and interest
which an individual has in lands and chattels to the exclusion of others and includes the
right to enjoy and to dispose of certain things in the most absolute manner as one pleases,
as long its done within the law. The traditional principles associated with property are:

- Control over the use of the property.

- Right to take any benefit from the property.
- Right to transfer or sell the property.
- Right to exclude others from the property.

1.4 Theories of Property

Historically, the concept of private property had grown out of collective groupor joint
property. Maine Henry posits that “Private property was chiefly formed by the gradual
disentanglement of the separate rights of individual from the blended rights of the
community. “This theory holds that property did not belong to individuals, not even to
isolated families, but the larger societies composed on patriarchal mode. With
disintegration of family, individual rightsemerged. Roscoe Pound also supports this theory.

1.5.1 Labour Theory

This theory asserts that labour of the individual is a foundation of property. Hence a thing
is the property of a person, who produces it or brings it into existence.

The main proponent is Spencer, who developed it on the principle of equal freedom. He
opines property as the result of individual labour. Therefore, no person has a moral right
to property which he has not acquired by his personal effort.

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1.5.2 Psychological Theory

This theory suggests that property came into existence on account of the acquisitive instinct
of man. Every individual desires to own things and that brings into being property.
Bentham opines that property is a conception of the mind. Seen as an expectation to derive
certain advantages from the objectaccording to one’s capacity a view shared by Roscoe
Pound

It is observed that the sole basis of the conception of property is the acquisitive instinct of
individual which motivates him to assert his claim overobjects in his possession and control.

1.5.3 Functional Theory (Sociological)

This theory proposes that the concept of property should not only be confinedto private
rights but also considered as a social institution securing maximum interests of society.
Property is situated in the society, has to be used in the society. Hence no one can be
allowed an unrestricted use of his/her property,to the detriment to others. (Jenks) The use
of property should conform to therules of reason and welfare of the community.

Laski alludes to Property as a social fact like any other that is capable of alteration.
Therefore, it’s prone to change with the changing norms of society.

1.5 Property is the creation of the State

Hobbes’ classic “Leviathan” depicts the reason for the development of the concept of
property and the state that man was in before he became “civilized”.

The state was that of state of nature, where no one owned anything & it was mere
possession of property that existed, not ownership. Thus no one claimedthat something is
their own because they cultivated it or captured it, they could only hang onto it till
someone more powerful came along and just tookit away.

This presented difficulty in preservation of possession and therefore order wasneeded if any
development was to be embarked & thus inspired the creation of a society headed by a
sovereign or a head.
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 The Head in turn became responsible for the protection of the property of all people and
in doing so; he was the safeguard and guardian of all. The Head chosen by superior or
consensus was responsible for anything that happenedin the society under his reign; this
also meant creating and generating properlaws and legislation. This theory can be traced
back to the origin of law & thestate.

Jenks observed that property and law were born together and would die together.
Property came into existence when the state framed laws and was nowhere before law.
For Rousseau, the conversion of possession into property& usurpation into a right that law
and state were founded.

The first to enclose a piece of land & said- ‘this is mine’- was the founder of real society.
Rousseau believes that property is a systematic expression of degrees and forms of control,
use and enjoyment of things by persons that are recognized and protected by law.
Therefore, property was the creation of the state.

Topic Summary

You can now define the concept of property as a bundle of rights which can be
exercised over things. This bundle of rights could include right of use, access,
possession, ownership among others.
You can identify and explain the classification of property as personal orreal and
make a distinction of the same.

You have also been introduced to the reach of property rights which shall be
discussed in depth in the subsequent topics that will be covered.

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 Further Reading

Mandatory Reading

Abraham Bell & Gideon Parchomovsky, A Theory of Property, 90 CornellL. Rev. 531
2004-2005

E.H Burns, and J. Cartwright E., (2011), Cheshire and Burns Modern Law of Real
Property 18th ed. Oxford University Press

Patricia Kameri-Mbote. “The Land Question in Kenya: Legal and EthicalDimensions”

in Governance: Institutions and Human Conditions, Strathmore University & Law
Africa pg 219-
246http://www.ielrc.org/content/a0910.pdf

Phil Harris (2007) 7th Edition An Introduction to Law Cambridge University Press
(pgs110- 149)

Property as an Institution – An Overview of the Law of Property Law, Chapter 1

John E. Cribbet et al, Cases and Materials on Property, 8th Edition (2002)

Role of Property in Society, Chapter 5 John E. Cribbet et al, Cases and Materials on
Property, 8th Edition (2002)

S Joseph Kieyah and Patricia Kameri-Mbote “Securing Property Rights in Land in

Kenya: Formal Versus Informal” in Christopher Adam et. al. eds, Kenya Policies for
Prosperity (Oxford: Oxford University Press, 2010), p. 309-328The Concept of
Property, Chapter 1 (pg. 2-29) Grant S. Nelson et al,

Contemporary Property (American Casebook Series, 1996)

Tom, Ojienda, (2008), Conveyancing Principles & Practice. LawAfrica.

Tom, Ojienda, (2015), Land Law and Conveyancing: Principles andPractice.

Law Africa.

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 National Land Policy Reform Process, Concept Paper (2004)

National Land Policy Reform Process, Issues and RecommendationsReport

(2006)

Statutes

The Constitution of Kenya (2010), Nairobi: Government Printer.

Land Act, Kenya Gazette Supplement No. 36 (Acts No. 6) 2012

Land Registration Act, Kenya Gazette Supplement No. 36 (Acts No. 3)2012

Republic of Kenya, Sessional paper Number 3 of 2009 on National LandPolicy

(Government Printer, August, 2009)

TOPIC ACTIVITIES

Activity

Watch the video on the link below:

https://www.bing.com/profile/history?form=edgehs&fsi=1

From the video above and what you have learnt from class identify and analyze examples
of real and personal property around you giving reasons forthe choices.

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 TOPIC TWO: THE CONCEPT OF PROPERTY

Introduction

The Concept of Property denotes a bundle of rights overthings. The essential characteristic
of Property is the value attached to it. Inone way or the other, it is a source of wealth. The
value, although may be either monetary or personal. It signifies the ownership of things.
Ownership, in turn, is about our right to use and possess things. It is the right to enjoy and
to dispose of certain things in an absolute manner as one thinks it fit.

2.1 Definitions

Black’s Law Dictionary defines Property as the right to possess, use and enjoya determinate
thing either a tract of land or chattel; the right of ownership (Bundle of rights ). It is external
thing over which the rights of possession, use, and enjoyment are exercised.

Ownership, according to the Black’s law dictionary is the collection of rights allowing one
to use and enjoy property, including the right to convey it to others‟. It further continues
to point out that ownership implies the right to possess a thing regardless of any actual or
constructive control‟.

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 Property can be employed as a sum to refer to interests which are owned whether they be
shares in a company or stocks which entitle one to a right toreceive dividends or certain
payments. It is clear that the term property is not only wide as a term it is also capable
of being quite abstract in the sensethat you talk about material and hypothetical situations.

In short you cannot give an all-encompassing definition of property but whenever we talk
of property we refer to those situations that symbolize thefullest level of rights that can
exist over an object or thing or a set of circumstances or thing or situation as well as the
power to exercise control, the element of dominion over such thing, object or situation or
set of circumstances that one is capable of asserting in relation to those objects or thing.

The concept of property and that of ownership are very closely linked, indeedone can
safely conclude that all property arises from fact of ownership and ownership itself has the
element of control as an essential element thereof and the moment one who is entitled to
a particular right exercises power overthat, there would in effect be the necessary exclusive
control which is identified with ownership.

2.2 Philosophical Foundations of Property Rights

These are essentially an exercise in surveying the various theories as to howproperty is

constituted or how it comes to be and why or what are the broaderimplications.

It is basically an approach that is based on the notion of first come first served.But of-course
there are many other modes of acquisition of property which can also be talked of for the
avoidance of doubt it would be useful to note thatin coming up with various modes, there
may be no hard and fast rules involved. In certain cases there would be overlaps between
one particular mode and others.

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 2.2.1 Acquisition by Discovery

This has been proved historically and otherwise discovery as a right of acquiring property.
The so-called new world and the Dark Continent are livingexamples. Once a discovery has
been made, as a matter of right, claims oversuch thing, item or object can be asserted and
sustained. This mode was usedto assert claims of overseas territories by various overseas
powers. In early times, what they would do would be to commission an expedition to go
out and make discoveries to new lands. The expedition would thereafter lay possession or
claim to such lands in the name of their respective sovereign governments. Upon such
discoveries the alleged finders would proceed to appropriate such areas as they have laid
claims to and that would proceed notwithstanding the glaring fact that there could well
be some indigenous people in existence in the areas allegedly discovered.

2.2.2 Acquisition by Conquest

Acquisition by conquest refers to the taking of possession of the enemy territory through
the use of force. Discovery is the act of sighting or finding what was previously unknown
territory accompanied by landing on that territory and hoisting the flag as a symbolic way
of asserting once claim for the nation alleged to have made the discovery. Conquest
involves use of forcefollowed by annexation of the territory.

2.2.3 Acquisition by Labour

The outstanding feature of this mode of acquisition is the fruits of one’s sweatgoing into
that which ultimately takes the form of property. In other words that sweat results in some
value added to whatever it is eventually becomes ones property. An ardent supporter of
this theory John Locke who accordingto his view states that, “the obligation to respect the
right of possession can only be rationalised on the basis that it is imposed by the law of
nature by which all men stood bound long before human conventions became known
though the earth and all inferior creatures are common to all men, every manhas property
in his own person, the labour of his body, the work of his handsall these remain properly
his.

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 2.2.4 Acquisition by Power

This theory is based on the idea that property confers and rests upon power, thereby
bequeathing to the owner. The idea is that based on power you canacquire the sovereignty
over all others by virtue of that fact. In terms of theexercise of that power by the state, for
instance, the effect is to confer the radical title in the state so that all grants of title, of land
for instance, you canactually trace your title back to the state which issued you with the
grant in the first place. The state retains the radical title, such that the owners claimto such
land will therefore have arisen by virtue of the exercise of that powerby the state to issue
the title. The sovereignty and the power attendant is thesole basis for explaining how that
acquisition arises in the first place.

2.2.5 Acquisition by Capture

This has a limited application. There are some property that are not capable of being
acquired through this particular mode whereas in the case of others it can be possible e.g.
in the case of wild animals, the starting point is that if we were to use wild animals as our
reference point, as long as the wild animalsremain wild, they are nobody’s property and
you cannot specifically point at anybody and say they own them. It is upto any one of the
hunters, gatherersto pursue the wild animals and get hold of them and only then can the
issue of ownership arise. Property becomes yours when you get hold of it before then it is
anybody’s. Again this mode of acquisition is outdated.

2.2.6 Acquisition by Creation

Has to be distinguished from the labour theory as it alludes to invention ratherthan the
application of raw labour. It applies mainly in situation involving corporeal property. It
involves spending of some mental as well as physical effort which results in the creation of
some object or entity in which case theperson responsible acquires the proprietary rights
to the commercial exploitation of that particular object or entity. Examples can be seen in
the form of copy rights, patents, and the broader categories of intellectual property.

2.2.7 Acquisition by Way Of Subsequent Possession

This may arise in 3 ways

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 1. By finding;

2. Through adverse possession;

3. By way of gift.

Acquisition by way of original possession must be distinguished from adversepossession.

Original possession is accepted as a basis upon which one can legitimately acquire property
by subsequent possession what we really meanis that the property in question may certainly
have belonged to someone elseinitially through any combination of factors. That original
owner may have lost possession and parted with the property so as to make it possible for
oneto talk of subsequent possession by the new owner. That may arise by way of finding.
The Scot say finders keepers while losers are weepers. First ownership displaces rights
acquired by subsequent possession.

Adverse Possession

Adverse possession only applies to property in land and operates as against persons other
than the government. What happens is that land which is initially owned by a particular
rights thereto say land owned by A. Without A’s consent, B moves in occupies that land
openly without consent from A and without breaking that factor of occupation for a
continuous period of 12 years.B openly remains in possession as against expressed wishes of
A and a periodof 12 years passes, B is deemed to have acquired title to that land by operation
of the law. In effect adverse possession is essentially a method of transferringinterest in land
without the consent of the prior owner provided that the criteria spelt out regarding the
prescriptive period and the manner that it mustbe exercised is fulfilled. The theory is based
on proposition that there shouldbe a restricted duration for assertion of edging claims and
that upon the expiryof such periods, the adverse possessor should by operation of law be
accordedsecurity of title to that which he has acquired. That piece that he has openly
occupied without consent of the owner of a continuous period of a minimum of 12 years.

Acquisition by Gift

The true owner out of his own volition transfers possession of property to therecipient and

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 in order to constitute a valid gift especially in land where there is a requirement that a
deed of that gift be executed if the intention is to deliver the property in question to the
recipient as a gift.

Acquisition by Purchase

The commonest type of acquisition in our day to day lives. Virtually today, anything that
one owns is as a result of purchase.

2.3 Land as property – what sets it apart from other sorts ofproperty?

In terms of property ownership land is crucial to the political economy of anyNation and
as such the issue of control of the rights to land ranks high in any governmental
arrangement. For that reason the authorities retain theultimate control of land as a resource
with the results that the radical title to land remains vested in the State so that whatever it
is be it strategy, securityor for whatever purposes the government has a say whether it is
commercial,who owns land in the country for purpose of raising revenue, who controls the
process, this remains in the hands of the State.

Art 260 of the Constitution of Kenya defines land as:

“surface, of the earth & the subsurface rock, any body of water on or under the
surface, marine waters in the territorial sea, and exclusive economic zone, natural
resources completely contained on or under thesurface and the air space above the
surface”

Land means the actual land (i.e. soil, ground and earth) plus any buildings
on the land, fixtures attached to the land, mines, minerals and some airspace”.

The Latin maxim Cujus Est Solum Ejus Est Usque Ad Coelum Et Ad Inferos- (whoever owns
the soil, holds title all the way up to the heavens anddown to the depths of the earth).

Solum- refers to the surface of the soil which in common parlance is conceivedas land.

Coelum - the space above the earth or airspace.

Inferos – the geosphere or the ground down below.

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 The maxim in practical terms is not possible to enforce because of the complications
associated with airspace, minerals etc. There are Common law principles that limit the
applicability of this maxim ‘Cujus est Solum’. The challenge is seen in light of right of air-
crafts to fly over airspace, right to tapunderground water & exploit minerals. E.g. a land
owner’s right in the air space extends to a height as is reasonably necessary for ordinary
use and enjoyment of the land.

The owner’s right to enjoy the land must be balanced with need of the public to take
advantage of technology & use of airspace. Thus beyond a certain height for ordinary use
of land, the land owner has no superior right than anymember of the public and this is the
reason why air-crafts can fly over someone else land.

Ownership beneath the soil is also qualified. The land owner can’t just extractwater any
how; the extraction is governed by various statutes and isrestricted. The statutes include:

(a) The Water Act (Cap 372 Laws of Kenya) which vests water resources in the state,
any dealings with water must be permitted. Extraction rights are vested in the
Cabinet Secretary responsible for water resources. Permission rests with the Cabinet
Secretary.
(b) The Environmental Management and Co-ordination Act No. 8 of 1999(EMCA)
limits the manner in which a water resource is used. This Act creates water pollution
related offences e.g discharge of effluent andan unlicensed use of a sewerage system,
discharge of dangerousmaterials substance, oil, into water (S. 142). The Limitations
imposed by EMCA is done to ensure clean and healthy environment.
(c) Art. 62 (1) of the Constitution of Kenya, defines public land to include water
resources and such land is held in trust & administered by government for and on
behalf of the people of Kenya.

(d) Art 62 (3) of the Constitution of Kenya vests ownership of minerals inthe national
government. By dint of this, a land owner is not capable ofowning minerals beneath
his/her land.
(e) Section 4 of the Mining Act, Cap 306, Laws of Kenya provides that all the
unextracted minerals (other than common one) under or upon any land are vested
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 in the government, subject to any rights granted, or recognized as being vested, in
any other person
(f) Section 4 of the Petroleum & Exploration Act Cap 308 provides that allpetroleum
existing in its natural condition in strata lying within Kenya and the continental shelf
is vested in the Government,
(g) The Civil Aviation Act Cap 411gives the Cabinet Secretary power to specify the
height of any structures within the limits of a gazetted aerodrome. This Act delimits
the usable space available to any propertylocated within a gazetted area for purposes
of the Act and to that extentthe common law position is altered.
(h) The Kenya Posts & Telecommunications Act, Cap 315, Laws of Kenya, confers
powers to the parastatal with the effect of cutting back on the rights of a proprietor
with a claim to his land. It entitles Telkom to enterany land for purposes of setting
up telephone lines & this in effect renders meaningless the contention that whoever
owns the surface owns it to exclusion of all others.
(i) Under the Electrical Supplies Act No. 11 of 1997, Kenya Power & Lighting Company
is authorized to enter into anybody’s land for purposes of setting up power lines.
(j) Section 7 of The Way Leaves Act (CAP 292) No. 21 of 1987 empowersthe state to
exercise a right of direction in matters regarding laying of electric lines, underground
cables, flyovers, etc.

Other definitions of land can be traced to the Latin Maxim “Quicquidplantatur solo solo
cedit”- meaning:

“something that is or becomes affixed to the land becomes part of the land; therefore,
title to the fixture is a part of the land and passes with title to the land.”

Thus, whosoever owns that piece of land will also own the things attached to it. This
concept is also replete of complications in determining what these fixtures constitute. Is the
attachment a fixture or a fitting that remains personal realty?

2.4 Fixture

What is a Fixture?

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 There are two tests developed to determine what constitute a fixture they are:

i) Degree of annexation &

ii) The enjoyment of the object as a chattel or convenient use of the land.

2.4.1 Degree of annexation:

Fixtures are material objects which as a matter of law merge with the freeholdeither by
reason of their physical bond with existing land or highly juxtaposition with the land. If a
fixture is merely put for convenient use on theland then it is not a fitting it can’t form part
of the land.

Fixtures’ are those material things which are physically attached to land so that they
become part of the realty and the property of the landowner.

An object which becomes a fixture merges with the land & passes automatically with all
subsequent conveyances of the land unless lawfully excluded.

A chattel or fitting on the other hand is a physical object which never becomesattached to
the land even though placed in some close relation with it and sodoes not pass with
conveyances of the land.

Case law on Fixtures

Leigh v Taylor [1902] AC 157, Valuable tapestries had been set up for display in a room in
a stately home. It first stretched over canvas & then tacked to the canvas. Canvas was then
stretched over strips of wood & nailedto those strips of wood which in turn were nailed to
the walls of the drawing room. Tapestries could be removed without doing any structural
damage to the building

Held: Despite the degree of attachment to the walls of the house, having regard to the
nature of the items and the purpose of their being placed as they were, the tapestries did
not become fixtures.

Elitestone ltd v Morris 1997 1 WLR 687, Elitestone purchased the freeholdto the land on

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 which Mr. Morris’s bungalow (and 26 others) was situated. Elitestone wished to demolish
the properties on the land with a view to redevelopment. Elitestone brought proceeding
against all the residence seeking possession of the land. Mr. Morris defended the action
claiming protection under the Rent Acts.

The Rent Act would only protect Mr. Morris if the bungalow formed part of therealty.
Elitestone argued that the bungalow was separate from the land sinceit rested on its own
weight on concrete pillars and was not physically attachedto the land.

Held: Considering both the degree of annexation and object of annexation thebungalow
formed part of the realty.

A further illustration of degree or mode of annexation can be seen in the caseof Holland v.
Hoggson (1871 – 72) L.R. 7 C.P. 328

The principle here is that if the movable property is resting on the land merelyon its own
weight, the presumption is that it is movable property, unless contrary is proved.

If the movable is fixed to the land even slightly or it is caused to go deeper inthe earth by
external agency, then it is deemed to the immovable property, unless contrary is proved

This explains why a spinning loom bolted to the floor of a factory attached toland other
than by their weight was held to be a fixture –e.g. a machine fixedto the land by using
screws (like in industries).

In Holland v Hodgson (1871 – 72) L.R. 7 C.P. 328, looms (machines used in the textile
industry) were fixed to the floor of a mill by nails driven throughholes in the feet of the
machines. Some of the nails went into wooden beamsin the floor; some went into wooden
plugs in holes drilled in the floor. The nails could be easily removed without damaging the
floors.

It was held that the looms were fixtures. They had been brought onto the landto improve
its usefulness for business purposes.

Blackburn J. explained the degree and purpose of annexation tests and that whether
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 something is a fixture or a chattel is a question of fact in each particular case.

In summary, a fixture is an article which was once a chattel but which has now become a
part of land. It is a thing “permanently attached or fixed to realproperty." If it is so attached
then in case of sale of land, the fixture is sold asa part of land, unless it is expressly excluded
in the terms of sale agreement.

If the situation and the nature of a structure placed on land are such that theremoval of the
article would lead to its destruction, then it was not intended to be removed from the site,
and was intended to permanently remain on the property hence a fixture. If it is not
permanent, the query that is asked is theintention of its placement. A fixture becomes more
evident when it is attachedto land to enhance the use or increase in its value e.g building.

2.5 Circumstances for distinction between Fixtures & Chattels

There are three circumstances under a dispute can a rise and require a determination
whether a chattel remains a chattel or alternatively has becomea fixture. These are:

i. Dispute between a vendor and a purchaser;

ii. Dispute between a mortgagor and a mortgagee, where the mortgagee will wish to
argue that certain chattels have become part of the land andas a result, are part of
the mortgage security;
iii. Dispute between a beneficiary under a will of personal property, on theone hand,
and a beneficiary of real property, on the other hand.
2.6 Distinction between Property & Obligations

There is a sharp doctrinal & functional divide between property & obligation.

Property is “usable wealth”. The essential features of property rights is that right holders
can transfer their rights and exclude third parties from interferingwith their rights. These twin
attributes of “transferability” and “excludability”characterize property rights.

Property & contract rights and duties are, at best, quantitatively different, reflecting
differences of degree, not of quality. The difference doesn’t originatein either property or
contract, but lies outside both (e.g. costs of making & carrying out transactions concerning
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 external objects).

Property law focuses on real rights, while obligation on one hand are the province of
personal rights. The difference lies in their enforceability. Property is a framework of
coordination in which participants approach the resolution of their competing claims (such
as for use of and access to an object) together.

Property turns coordination itself into a form of respectful recognition among persons,
quite apart from the functions it serves (such as promoting efficiencyor sustaining freedom)

Duties originating in a contractual interaction, can establish relations of respect and

recognition in which being a person as such is never sufficient forthese relations to get going.

Obligations are duties owed by one person to another. Such duty is limited, referred to as
‘personal rights’.Pretto-Sakmann opines that an obligation hastwo sides or ends: at one
end is a right and at the other is an obligation.

E.g. debt, the right to be paid correlates with an obligation to pay. One personhas an asset
& the other a liability.

These obligations are classified as voluntary obligations which arise from thewill of the
parties and involuntary obligations which are imposed by law.

Voluntary obligations emanate from the law of contract that is a legally bindingagreement,
voluntarily entered into, which is enforceable by the parties to it.

The rights & duties of the parties to the contract correspond with each other & thus there
is an obligation of at least one individual to perform under the contract.

Involuntary obligations arise from the law of delict. Delict is an area of the lawwhich governs
the obligation to refrain from wrongful conduct which may harmthe interests of another. It
imposes a duty to compensate one who is harmedas a result of another's wrongful conduct.

Example I:

A owes B Kshs 10,000 in rent arrears. A is under an obligation to make payment to B. A

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 has a debt. The law of obligations involves two perspectives.

A has a debt of Kshs 10,000, an obligation to pay Kshs 10,000; B has a right to receive
payment. B’s right to payment is a personal right – enforceable onlyagainst A. B’s right is
correlative to A’s obligation.

Chase Manhattan Bank NA v Israel–British Bank (London) Ltd [1981]Ch 105.

This is a case where the claimant bank accidentally made a payment of US$2000 687 twice
& the recipient bank went into liquidation shortly after receivingboth payments.

Justice Goulding held that the recipient bank held the proceeds of the mistakenpayment in
trust for the claimant bank, therefore there was an obligation to repay.

Illustration

Akotabs owns building (Mgongo Wasi Mall) a long Kenyatta Avenue in Nakuru.Kuku wishes
to buy the mall. Akotabs & Kuku through their lawyer enter intocontract of sale.

Once the contract is sealed Kuku has personal right. That is personal right tohave ownership
of the mall transferred to her. This right is only enforceable against Akotabs. Akotabs is
under an obligation to transfer the ownership ofthe mall to Kuku.

The obligation to transfer means that Akotabs must deliver a conveyance of the property
to Kuku.

If Akotabs enters into another contract with Kweke and transfers ownership of the same
Mall to Kweke he breaches his contract with Kuku.The second contract conveyance is
delivered to Benjamin and Benjamin in turn registers it. The conveyance transfers the real
right of ownership of the Mall from Akotabs to Kweke.

This transfer excludes Kuku from the ownership. Kuku cannot make Kweke totransfer the
property to her because there is no contractual obligation owed.Her personal right is only
enforceable against Akotabs for breach.

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 2.7 Nature of Property Rights

Property consists of goods and services that society gives an individual or

group of individuals the exclusive right to possess use & dispose of it”.

This right of goods and services is expressed in the value system of the society.

Generally, property rights consist of separate and overlapping rights to possess, use and
kdispose of property. It involves possession and ownership ofthings owned. It is regulated
by the norms and customs of the society. It is aright to control, exploit, use or enjoy wealth
or possessions owned by an individual or individuals who belong to the same social group
or kin or clan.

Property rights have characteristics which are not possessed by other kinds ofrights and
duties. They include:

Transferable: It can be transferred by its owner by way of sale, exchange or gift unlike
skills. It can be transmitted from one generation to the next.

Involves a distinction between ownership & possession of a thing: A may owna thing but
he may not actually use and enjoy it. B may steal a car from C touse and enjoy, or borrow
with C’s consent. A person may also own a building, but it may be in the possession of
another person at a cost e.g. landlord/tenantrelationship.

Power Base: As a social institution, property gives power to its owner to dealappropriately.
The possession of property implies the possession of power over others

Property is usually Non-human-Property has no rights of its own but is simply the passive
object of such rights. The land has no right of its own; it only serves the land owner. It
serves the owner’s will & discretion

2.8 Types of Property

There are two major types of property immovable (Real) and (movable) Personal
Property.

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 Immovable (Real property) is land and all things that are a natural part of theland, e.g. trees,
minerals and things that have been attached to the land. Thisis property that cannot be
moved or an object firmly attached to land as partof the land, i.e. land and buildings

In legal aspect immovable property has the following two elements:

i) a determinate portion of the earth’s surface

ii) ground beneath the surface down to the centre of the world (thiscan be
qualified or limited)

Anyone who owns a house or a condo owns real property. (mobile home is
not real property as doesn’t own the land the vehicle sits on.

Movable (Personal property) on the other hand refers to property that can bemoved or
displaced such as goods and capable of owner but not classifies asreal property. There are
two categories of movable property that is intangibleand tangible.

Source: Wallstreet mojo

Intangible property is a physical thing that can be moved but that cannot be touched in
the usual or real sense. It includes cash & its equivalents: mutualfunds, stocks, insurance
policies, savings and checking accounts, intellectual property.

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 Tangible property is a large category of what people own. It’s anything you can touch. It’s
the baseball card collection, jewelry, furniture, house wares, clothes, automobiles, coin and
stamp collections.

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 2.9 Intellectual Property Rights

Source:https://www.legalbites.in/characteristics-nature-intellectual-property- right/

Intellectual Property Rights are entitlements conferred by the law to personsover creative
works: inventions, literary and artistic works, and symbols, names, images, and designs
used in commerce.

They are not absolute rights as third parties can do certain things within the scope of those
rights, as provided by the principle of exhaustion of Intellectual Property Rights. For
example, once a copyrighted material is sold with the consent of the copyright holder, the
buyer may resell the material.

The principles of fair dealing and fair use may also allow a third party to use,within certain
limits copyrighted material.

Moreover, Intellectual Property Rights have a limited duration as a general rule; they are
transferable and are generally a creation of statute.

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 2.10 Types of Intellectual Property Rights
2.10.1 Patent

Source: Legalraasta

A patent is an invention or discovery. It vests an exclusive right on an inventorto prevent

others from making, selling, distributing, importing or using their invention, without license
or authorization, for a fixed period of time in returnfor disclosure. The invention must meet
the requirements of novelty, inventive step/non-obviousness and industrial
applicability/usefulness. Patents are protected under the Industrial Property Act Chapter
509, for a period of 20 years.

2.10.2 Utility models

Utility models are a form of intellectual property protection granted for inventions with
fewer requirements as compared to those of patents. They confer a shorter period of
protection.

Under section 82 of the Industrial Property Act, an invention is eligible for utility model
protection where it is new and industrially applicable and shall beprotected for a period of
ten (10) years.

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 2.10.3 Copyright

Copyright protects various “original forms of expression,” reduced into tangible forms, for
example, novels, movies, musical compositions, and computer software programs for a
specified duration.

Copyright protection in Kenya is governed by the Copyright Act 2001 which isan enactment
Parliament to make provision for copyright in literary, musical and artistic works, audio-
visual works, sound recordings, broadcasts and for connected purposes.

The period of protection is fifty (50) years as from the date of publication or recording or
from the date of death of the author in the case of literary, musical and artistic works.

Question: What are the legal issues for Copy Editors?

• Invasion of privacy
• Censorship
• Libel
• Copyright
• Anonymous sources
• Employment issues
2.10.4 Trademarks

Trademark law protects words and symbols that identify for consumers the goods and
services manufactured or supplied by particular persons or firms.

A mark may be registered if it meets at least one of the following: specially represented
name of a company, firm or individual; signature; invented words; and any other
distinctive mark.

The law protects registered trademarks for a period of ten years but this maybe extended
through renewal. The registered mark may be transferred and assigned.

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 Cases:

1. Pastificio Lucio Garofalo S.P.A v.Debenham & Fear Ltd [2013]

eKLR. Marks were ‘Santa Lucia’ and ‘Santa Maria’

2. Unilever PLC v Bidco Oil Industries [2004] 1 KLR 57-mark indispute

resemble ‘blue band’ mark of quality.

Registered trademarks are protected under common law and an infringementupon the
same is deemed as passing off.

Source: Linkedin

2.10.5 Industrial designs

Industrial designs protect the aesthetic aspects (shape, texture, pattern, andcolour) of an
object, rather than the technical features.An industrial design is registered where it is new
and will vest on the holder the exclusive right to sell goods bearing the design. The
protection period is aterm of five years and may be renewed for two more terms.

2.10.6 Geographical Indication

A geographical indication is “…a sign used on products that have a specific geographical
origin and possess qualities or a reputation that are due to thatorigin.”

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 They mainly consist of the name of the place of origin. For example, Roquefortidentifies a
specific cheese made in Roquefort-sur-Soulzon, a region insouthwest France; champagne
etc .What of miraa from Meru?

It is important to note that they are not used for agricultural products only.

Geographical Indication may also be used to highlight a product having specific qualities
due to the human factors found in its place of origin, for example, the handicraft making
traditions of local communities.

Topic summary

• You now know that there are two major types of property immovable (Real) and
(movable) Personal Property.
• Immovable (Real property) is land and all things that are a natural partof the land,
e.g. trees, minerals and things that have been attached to the land. This is property
that cannot be moved or an object firmly attached to land as part of the land, i.e.
land and buildings
• Movable (Personal property) on the other hand refers to property that can be
moved or displaced such as goods and capable of owner but notclassifies as real
property. There are two categories of movable property that is intangible and
tangible.

• Intangible property is a physical thing that can be moved but that cannotbe touched
in the usual or real sense e.g. Intellectual Property while Tangible property is a large
category of what people own. It’s anythingyou can touch.
• You can identify Fixtures which are material objects which as a matter of law merge
with the freehold either by reason of their physical bond with existing land or highly
juxtaposition with the land. If a fixture is merely put for convenient use on the land
then it is not a fitting it can’tform part of the land and this is what differentiates it
from a chattel.
• You can now use the principles discussed to differentiate between a Fixture and
chattel.

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 Further Reading

Mandatory Reading

 Abraham Bell & Gideon Parchomovsky, A Theory of Property, 90 Cornell L.Rev. 531
2004-2005

 Attributes of Property, Chapter 2 John E. Cribbet et al, Cases and Materialson Property,
8th Edition (2002)

 Balganesh Shyamkrishna, “Privative Copyright” (2020). Faculty Scholarship at Penn

Law. 2065. Available online at:
https://scholarship.law.upenn.edu/faculty_scholarship/2065.

 Harold Demsetz, Toward a Theory of Property Rights, The American Economic

Review, Vol. 57, No. 2, Papers and Proceedings of the Seventy-ninth Annual Meeting
of the American Economic Association (May, 1967),pp. 347-359.

 Property as an Institution – An Overview of the Law of Property Law, Chapter 1 John

E. Cribbet et al, Cases and Materials on Property, 8th Edition (2002)

 Role of Property in Society, Chapter 5 John E. Cribbet et al, Cases and Materials on
Property, 8th Edition (2002)

 The Concept of Property, Chapter 1 (pg. 2-29) Grant S. Nelson et al, Contemporary
Property (American Casebook Series, 1996)

 Traditional Objects and Classifications of Property, Chapter 3 John E. Cribbet et al,

Cases and Materials on Property, 8th Edition (2002)

Statutes

 The Constitution of Kenya (2010), Nairobi: Government Printer.

 Land Act, Kenya Gazette Supplement No. 36 (Acts No. 6) 2012

 Land Registration Act, Kenya Gazette Supplement No. 36 (Acts No. 3) 2012

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 TOPIC ACTIVITIES

Activity

Follow this link:

https://www.youtube.com/watch?v=sjQjgSkrDJ8 to watch a video distinguishing between a

Fixture and chattel.

In light of the video you have just watched, identify fixtures or chattels aroundyou and apply
the tests you have just studied in this to determine whether itis a fixture or a chattel.

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 TOPIC THREE: THE CONCEPT OF LAND

Introduction

Welcome to topic three. This topic covers the mechanisms established to guidecompeting
claims to land. These mechanisms guide relations and answers a tripartite question; who
owns, what interest in what land?

3.1 Definitions of Land

Interests in land: means any ownership or possessory right with respect to real property,
including ownership in fee simple, an easement, a leasehold, and any subsurface or mineral
rights.

Proprietary rights can ‘run’ with the land and can confer benefits and burdens on
whomsoever comes to own the land. To claim property in a resource is, ineffect, to assert
a strategically important degree of control over that resource

In Dorman versus Rodgers 1982) 148 CLR 365, Justice Murphy said

“in modern legal systems, ‘property’ embraces every possible interest recognised
by law which a person can have in anything andincludes practically all valuable
rights”
Kevin Gray & Susan Francis Gray opine that Property is not a thing, but a relationship
which one has with a thing, the object of ownership. Gray & Grayposits that ‘property’ in
a resource is capable of calibration from a maximum value to a minimum value meaning
that it is possible to “measure the quantumof ‘property’ one has in a particular resource.
What sort of measurement or relationship does this mean?

For example a licensee has only a right of access to land, the power to controlaccess to land
& exclude the licensee from the land remains with the owner ofthe land. Proprietary interest
in the circumstances remain vested in the ownerof the said land. A tenant or a transferee of
title acquires “proprietary interest”in land.

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 In Elitestone Ltd vs. Morris (1997) 1WLR 687 at 691G-H
It was held that to have ‘property’ in a resource may be consistent with theacquisition or
retention by others of ‘property’ in the same resource.
License
A licence is that which allows a licensee to enter upon the land of another in circumstances
under which the said entry would amount to trespass to land without the consequential
permission. It makes lawful that which would be inother circumstances unlawful.
Section 2 of the Land Act 2012 defines license as:
“a permission given by the Commission in respect of public land or proprietor in
respectof private or community land or a lease which allows the licensee to do some
act in relation to the land or the land comprised in the lease which would otherwise
be a trespass, but does not include an easement or a profit.”
S.20 of the Land Act, empowers the National Land Commission to grant a person, at a
prescribed fee, a licence to use unalienated public land for a period not exceeding five
years subject to planning principles as it may prescribe.
Under Common law, a license can either be; a contractual, simple or bare, orcoupled with
interest
3.2 Simple/Bare License
It is given gratuitously and is not coupled with any grant of interest and is revocable by
the licensor at will. Can be revoked expressly or by conduct sufficient enough to indicate
revocation of the permission to be present on anyone’s land
3.2.1 A contractual License
Is for value for example where one buys a ticket from another so as to view aperformance.
Revocable at any time at common law. However in equity, it isirrevocable for as long as
the parties intended or until terminated by notice prescribed for such.
In Hurst vs. Picture Theatres Ltd (1914) 1 K.B1

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 The Plaintiff entered a cinematography theatre belonging to the Defendants, paid for a
seat, entered the auditorium, and was shown to a seat. Later, servants of the Defendants
alleged that he had not paid, requested him to leave the theatre, and, when he refused,
removed him by force. In an actionby the plaintiff claim for damages against defendants
for assault & false imprisonment,
Court held that, ‘the plaintiff paid his money to enjoy the sight of a particular
spectacle during the time that spectacle lasted.
The license to enter the defendants’ premises was only given to him to enablehim to see that
spectacle, & thus, the right of entry was a license coupled witha grant, and was irrevocable.
Alternatively, there’s a term implied that can’t be revoked until the spectacle ended & thus
Plaintiff was entitled to succeed’.
3.2.2 A license coupled with interest
It is an irrevocable license that grants an interest in land or in personal property. A license
coupled with an interest may be binding on successors inthe title of the licensor.
A licence to use a signboard granted at the same time as, and in connection with, the sale
of a shop could be a licence coupled with an interest. It is irrevocable and binding on third
parties such as a purchaser from the licensor.Kamau v Kamau [1984] eKLR
3.3 An estate in land: Fee simple, freehold, leasehold or a fee tail. Interests in land
are proprietary rights that enable a person to enjoy the estateof another. Examples of
Interest in land:
a) Easements: the right of way over someone else’s land ;
b) Restrictive Covenant: right to prevent an owner of land from carrying on some specific
activity on his own land. It is negative in nature as it imposes limitations upon the
manner in which an owner may use land e.g height, composition, size or external
features of a building on the land. The restriction precludes one from doing or
initiating certain forms of developments which would be inconsistent with the general
use to which that particular neighbourhood is earmarked.
c) Profit a prendre: The right of entry into another person’s land to do somespecific act,
e.g. to pick the soil in that land. Unlike in easement, it entailsthe taking of something
from another’s land, something capable of ownership that is taken from the servient

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 tenement. The right may also exist in relation to specified piece of land. Easement must
be pertinent toservient and dominant tenement at the same time, while profit need
not be as it is a right that does not need the beneficiary to be the owner of thedominant
tenement and can come all the way from wherever and all it entails is the taking away
of something and off he goes. This interest canbe created either by an express grant or
by prescription.
Proprietary interest can be transferred or sold to another along with the landbenefited by
the right, and may be binding against a new owner of the ‘estate’over which they exist.
Proprietary rights operate outside the normal conceptsof privity of contract; the law does
not permit the parties to produce novel proprietary rights (Maureen Tahen)
Interest in land is divided into two classes: freehold and leasehold.
3.4 Freehold
A common feature of all estates of freehold is that the duration of the estate, though
limited, is uncertain. Okoth Ogendo defines it as the right to use the land for the duration
of the grantee and that of his heirs and successors. Thisright is also known as a fee simple.
The freehold estates are the fee simple, fee tail, life estate and estate pur- autre
Fee simple Estate is said to be the largest quantum of interests that a landowner can have
at law. A fee simple estate is unlimited in scope i.e. the holder of such an Estate in theory
enjoys unrestricted powers over such property. Such powers include, the power of abuse,
use and disposition, however in practice these powers are not absolute.
Fee tail Estate merely gives a person a life estate followed by successive interest whatever
form those interests may take. Fee tail need not be intereststhat pass to the descendant but
can pass to whoever it is designated. The important thing is that it has life interest in the
Estate.
A freehold is freely alienable (transferable) during the life of the estate owner by way of
gift, sale, adverse possession; or on his death through a will or inline with the rules of
intestacy. In terms of above each new estate owner is inturn entitled to enjoy the land for
the duration of his life and that of his heirsand successors. Freehold is thus equivalent to
permanent ownership of land.Duration of a freehold estate supersedes the life of the
current owner; canexist for generations.

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 Where there is no passing of such successive interest i.e. failure for whateverreason to pass
to the designated person, such an estate passes to the state through the operation of the
doctrine of “escheat”
Escheat is the reversion of property to the state, or (in feudal law) to a lord, on the owner's
dying without legal heirs. The radical title is retained by the state and in event of failure
property passes back to the state. Martin Dixon posits that freehold is ownership of land
for a ‘slice of time’. When no more heirs or successors exist, the non-enduring nature of
freeholds is revealed when the land reverts to the Government as the absolute owner.
Section 24 of the Land Registration Act 2012, stipulates that that the powers conferred by
registration is not liable to be defeated in any way except as maybe provided in the Act.
Such powers are held together with all the privileges attendant thereto and free from all
other interests and claims of whatever nature. The General rule is that rights acquired,
powers conferred can’t be defeated by looking to other external factors. Exception: Are
only restraints that the Act itself provides forin the enjoyment of the rights acquired under
absolute proprietorship.
Section 25 of Land Registration Act provides for indefeasibility of a proprietoracquired on
first registration or subsequently for valuable consideration or byan order by the court
except under the conditions spelt out by the Act. The exceptions provided under S.25
include- leases, charges and other encumbrances and conditions or restrictions shown on
the register and liabilities, rights and interests expressed under Section 28 of the Act
(Overriding interests).
Section 28 of Land Registration Act (LRA) No. 3 of 2012 lists the Overriding
Interest that can affect the proprietor’s title to include:
i. Trusts
ii. Easements- Rights of way , water and profits subsisting at time of firstregistration
iii. Natural rights to light , air, water and support
iv. Rights of compulsory acquisition, resumption, entry, search and userconferred
by any other written law
v. Leases, or agreements
vi. Charges for unpaid rates or and other funds prescribed under any lawOverriding

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 Interests are rights acquired or in process of being acquired byvirtue of any written
law. They include electric supply lines, telephone andtelegraph lines or poles, pipelines,
aqueducts, canals, weirs and dams erected,constructed or laid in pursuance of any law
and any other rights providedunder any other written law.
3.5 Indefeasibility of first registration
Obiero v. Opiyo [1972] E.A.
First registration extinguishes all customary rights and cannot be cancelled onany grounds
whatsoever The Plaintiff had been registered as the absolute proprietor of the title in
question in 1968 and in the register no encumbranceswere noted.
The defendants who were sons of the defendant with the co wives conceded that they had
always been in possession of the suit property & they based their ownership purely under
customary law.
In a bid to bolster their case they argued that they had always worked the land since time
immemorial and argued that the plaintiff, 1st wife’s registration in their view was obtained
by way of fraud as the Plaintiff never revealed their interest during the registration process.
Court held that even if the registration had been procured fraudulently, the plaintiff’s title
of first registration was indefeasible & the title was subject to no encumbrances as the
register reflected none & hence free from all interestsand claims
The court found out that the rights of occupation inherent in the defendants which in any
case arose under customary law were not overriding interests within S. 28 of the RLA and
the court further held that such a right of occupation had been extinguished upon the first
registration with the plaintiffemerging as the absolute proprietor of the suit property
In granting the plaintiff the relief sought i.e. damages for trespass and a permanent
injunction to restrain the defendants from continued trespass theJudge said:
“rights arising under customary law are not among the interests listed in S. 30 of the Act
as overriding interests. Had the legislature intended that the rights of a registered
proprietor were to be subject to the rights of any person under customary law, nothing
could have been easier than for it to say so.”

Also see the case of Esiriyo vs Esiriyo& Another [1973] E.A. 388
How about Section 28 of the LRA? This was discussed in the case highlightedbelow:
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 Isack M’inanga Kiebia v Isaaya Theuri M’lintari & another [2018] eKLR with the repeal of the
Registered Land Act (Cap 300), Parliament enacted the Land Registration Act No. 3 of
2012. The provisions of Section 28 of the former, including the proviso thereto, were re
enactedas Section 25 of the latter; while the provisions of Section 30 of Cap 300were re
enacted as Section 28 of the Land Registration Act. However, Parliament introduced two
new categories of overriding interests, the first category is what are now called “spousal
rights over matrimonial property” (since repealed); while the second category is what are,
rather curiously called “trusts including customary trusts”. Even more curious, is the fact
that “the rights of a person in possession or actual occupation of land to which he is entitled
in right only of such possessionor occupation,” as earlier provided for under Section 30 (g)
of the Registered Land Act, are no longer on the list of overriding interests under Section
28 of the Land Registration Act.
[58] What are we to make of these changes? Several interpretations are plausible. It is now
clear that customary trusts, as well as all other trusts, are overriding interests. These trusts,
being overriding interests, are not required to be noted in the register. However, by
retaining the proviso to Section 28 of the Registered Land Act (now repealed), in Section
25 of the Land Registration Act, it can be logically assumed thatcertain trusts can still be
noted in the register. Once so noted, such trusts, not being overriding interests, would bind
the registered proprietor in terms noted on the register. The rights of a person in possession
or actual occupation of land, as previously envisaged underSection 30 (g) of the Registered
Land Act, have now been subsumed inthe “customary trusts” under Section 25 (b) of the
Land Registration.

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 Act. Thus under the latter Section, a person can prove the existence of a specific
category of a customary trust, one of which can arise, althoughnot exclusively, from
the fact of rightful possession or actual occupationof the land.

3.6 Leasehold Estate

Source: Wallstreet mojo

Essentially, the term leasehold refers to the bundle of rights that are containedin a lease. The
concept refers to the quantum of interests inherent in a lease.A lease generally, means the
transaction which confers a leasehold interest. A leasehold interest is a fixed period estate
and accordingly can never be freehold.
The Land Act No. 6 of 2012 (LA), under section 2 defines a Lease as “the grant, with or
without consideration, by the proprietor of land of the right to exclusive possession of his
or her land, and includes the right so granted andthe instrument granting it, and also
includes a sublease but does not include an agreement for lease.”
3.6.1 Essentials of a lease
a) Confer a right to exclusive possession;
b) Relate to defined premises,
c) Pertain to a definite period or to a period though not ascertained, capableof being so
ascertained.
3.6.1.1 Exclusive Possession
The tenant must acquire the right of exclusive possession to the exclusion ofthe Landlord
and all persons claiming through him

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 If one is let into exclusive possession, he/she becomes a tenant and only acquires the
personal privilege of occupation in the nature of a license, whichmay be revoked in line
with terms of agreement granting the same.
In Runda Coffee Estates vs. Ujagar Singh (1966) EA 564 the court stated that: “The
expenditure of money by a person on another’s land in expectation, by reason of a
representation made by the owner of the land, of being allowedto occupy that land, gives
rise to an estoppel precluding the owner from givingany evidence of an act which would
terminate that occupation except in accordance with the representation. This right to
continue in occupation, however, creates no title in the land and the right is co-extensive
with and dependant upon a clear and unequivocal representation.”
3.6.1.2 Defined Premises/Interest
The grant of a lease must pertain to a definite interest in land which is capableof being the
subject of an assignment.
3.6.1.3 Defined Premises/Land
There can be no lease unless the property in question is defined or capable ofbeing defined.
In Heptulla Brothers Ltd vs. Jambhai Jeshangbhai Thakore(1957) EA 358, the basic issue
was whether, in view of the terms of the document, whichpurported to be a registrable
lease, the appellants were tenants or licensees in respect of that part of the shop, which
they occupied.
The court held that, ‘No tenancy was ever created by or in reference to the document
because the premises intended to be let could never be ascertainedwith sufficient precision’.
Period certain/definite

The period of the lease must be defined or capable of being defined. The ultimate date of
expiry of the lease must be capable of being predicted right from the start of the lease. The
Lease must have defined frontiers i.e. a beginning and an end. Lord Denning, M.R in
Harvey vs. Pratt (1965) 1
W.L.R. 1025 stated: ‘It has been settled law for all my time that, in order tohave a valid
agreement for a lease, it is essential that it should appear, eitherin express terms or by
reference to some writing which would make it certainor by reasonable inference from the
language used, on what day the term is to commence’. Thus, where the date of

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 commencement or the date of expiryof the lease is not certain, the transaction is void.
The term for lease must be fixed. It is never open ended. It can be fixed depending on
terms of the agreement and it is only the maximum duration ofthe lease that needs to be
fixed. A lease is nothing more than a personal permission to use land and cannot be forever
but for a definite period.
The rights a Lessee enjoys is construed as personal rights against the land owner (the Lessor)
and not property rights in the land itself.

The Land Act No. 6 of 2012 has codified some of the essential requirements of a lease. S
56(a) of the Land Act, stipulates that a lease must be for:

• a definite period
• the life of the lessor or of the lessee
• a period which though indefinite, may be determined by the lessor orthe
lessee.”
• Any lease which is not specified is “deemed to be periodic lease.” (S.57
(1) (a) of Land Act).

Illustration
• Bains & Chogley (1949) EACA 27

The issue here was that the landlord purported to lease out certain premises for
manufacturing purposes for a period lasting 5 years through an unregistered instrument
and a dispute arose ending up in court. In theopinion of the court the lease though not
registered was valid as a lease from year to year which does not attract the requirement
of compulsory registration and was therefore subject to the provisions of the ITPA
including that of giving 6 months’ notice where there is desire to terminate the
arrangement. In spite of the fact that there was no registration it waspossible for the
rights and interests conferred to be enjoyed by the tenant but purely on the
understanding that that arrangement would be confinedto a year to year tenancy and
not the whole duration of tenancy.

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 • Clarke & Sondhi (1963) E.A. 17

The lessor purported to lease out certain premises to the lessee for a period of 3 yrs. at an
agreed annual rent which was to be paid in specified monthly installments. The lessee had
possession of the premises and in the course of time fell into rent arrears thereby forcing
the Lessor to bring an action for recovery of the same. In his defence the Lessee introduced
or contended that the Lessor had no valid cause of action because the lease was not
registeredas required under RTA & it was this position that on account of the fact that the
entire arrangement was void or unenforceable and that such an arrangement was incapable
of passing any legal estate in land.

The Court opined that, the unregistered lease could operate as a contract inter- party and
consequently the Lessee could not escape to pay any rentsdue. The imperfection caused by
failure to register does not necessarily defeat the rights and obligations of the parties as
between themselves. The approach has been to save whatever can be saved and disregard
that which cannot besaved.

The Court of Appeal upheld the same position that an unregistered lease couldoperate as a
contract inter parties & confer on the Lessee the right to confer the contract including the
right to demand specific performance which would lead to obtaining the effect of a
registrable lease.

3.7 Sub-leases

A land owner holding freehold or leasehold interest from the government maygrant a sub-
lease out of the leasehold or freehold interest. Sub-leases may also be leased by third parties
conveying some or all of the leased property for a shorter term than that of the head lease.
Sub-leases may be prohibitedby the original lease, or require written permission from the
owner.

3.8 Sectional titles

Allows one to purchase a section of a building; enables individual ownership of one

dwelling unit within a multi dwelling building. Unit owners have undivided ownership

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 interest in the land and those portions of the building shared in common.

An alternative to the condominium is the cooperative, in which residents owna share of a

corporation, with each share entitling the owner to reside in a particular unit in the
building.

The Condo- form of real estate ownership in which individual residents hold adeed and
title to their houses or apartments and pay a maintenance fee to a Management Company
for the upkeep of common property such as grounds,lobbies, and elevators as well as for
other amenities. Condo owners pay real estate taxes on their units & can sublet or sell as
they wish.

3.9 Remainders and Reversions

A remainder is a future interest in land. It is the right to own and possess theland after the
fixed interest of current holder expires. A remainder can followa life estate or a term of
years. It is created by the use of the phrase "then to" or similar language. E.g. I give "to Kazi
for life, then to Maxi" and "to Kazifor 10 years, then to Maxi" give Maxi a remainder.

A person who has a remainder is called a remainder man. Thus a remainder in property law
is a future interest given to a person (transferee or remainder man) that is capable of
becoming possessory upon the natural end of a prior estate created by the same instrument.

3.9.1 Two types of Remainder:

3.9.1.1 Contingent Remainder

Contingent can be a remainder to a person not ascertained at the time the interest is created
or specific event occurring before the expiration of the preceding interest (Condition
precedent).

In the 1st instance e.g. the Mbeki owns Papre Gardens no limitations. While Giddy & Tanya
are alive, Mbeki conveys Papre Gardens to Giddy for life, witha remainder to the heirs of
Tanya. The heirs of Tanya are not yet known, so they have a contingent remainder.

In 2nd instance Mbeki owns Papre Gardens and conveys Papre Gardens to Giddy for life

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 and then to Tanya if she marries Tyler, then Tanya has a contingent remainder in title,
conditioned on the death of Giddy and the marriage to Tyler.

3.9.1.2 Vested Remainder

A vested remainder is a future interest to an ascertained person, with the certainty or

possibility of becoming a present interest subject only to the expiration of the preceding
property interests.

If Mbeki owns Papre Gardens and conveys Papre Gardens to Giddy for life andto Tanya in
fee simple (without limitations), Tanya has a vested remainder infee that becomes a present
interest upon the death of Mbeki. As a remainderman, she simply has to wait for Mbeki's
death before assuming a present interest in Papre Gardens.

A “reversion” is held by the grantor of the original conveyance, whereas "remainder" is

used to refer to an interest that would be a reversion, but is instead transferred to someone
other than the grantor. Reversions, remainders are usually created in conjunction with a life
estate, life estate purautre vie, or fee tail estate (or a future interest that will eventually
become one of these estates). (See Section 69(1) of the Land Act 2012 on reversions)

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 3.10 Co- Ownership or Tenancy

Co-ownership is the ownership of land by two or more persons in undivided shares and
includes joint tenancy or tenancy in common. Provided for under section 91 of the Land
Registration Act of 2012, co-ownership falls in two categories: Joint tenancy or Tenants in
Common. The Law requires the instrument registering such two or more persons to show
whether it is joint tenancy or tenants in common. Where parties are tenants in common
then their share held must also be shown

3.10.1 Joint Tenancy

In a joint tenancy, all the co-owners own the whole of the property collectively.Four unities
qualify a Joint Tenancy that is Unity of:

i) Possession - each party is entitled to occupy the whole of the land &none can
exclude the others from any part of it.
ii) Interest - each party hold the same interest in the property

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 iii) Title - parties acquire their interest thro same transaction
iv) Time- interests must have been acquired at the same time

There are no equitable shares in a joint tenancy unlike Tenancy in Common, shares are
merged and treated as one. Joint Tenancy is ownership by two or more persons of the
same property. The individuals share equal ownership of the property & have equal,
undivided right to keep or dispose of the property.

Joint Tenancy creates a right of survivorship that is if any one of the joint tenants dies, the
remainder of the property is transferred to the survivors. (Section 91(4) of the Land
Registration Act).

S60 of the Land Registration Act “if any of the joint tenants of any land, leaseor charge dies,
the Registrar shall, upon proof of the death, delete the name of the deceased tenant from
the register by registering the death certificate”.

Illustration of Joint tenancy:

Isabel Chelangat vs Samuel Tiro (2012) eKLR:

“A joint tenancy imparts to the joint owners, with respect to all other persons than
themselves, the properties of one single owner. Although as between themselves, joint
tenants have separate rights, as against everyone else theyare in the position of a single
owner. Joint tenancy carries with it the right of survivorship and “four unities.” The right
of survivorship (jus accrescend) means that when one joint owner dies, his interest in the
land passes on to the surviving joint tenant. A joint tenancy cannot pass under will or
intestacyof a joint tenant. A joint tenancy cannot pass under will or intestacy of a joint
tenant so long as there is a surviving joint tenant as the right of survivorship takes
precedence.”

In a joint tenancy, survivorship operates. If one joint tenant dies, theremaining one benefit
from his entitlement in the whole of the property. This

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 means a joint tenant can not leave her/his interest in the property to anotherin their will.
Neither will their interest in the land form part of their estate should they die intestate. It
will simply pass to the other joint tenants. If thereis only one other joint tenant, they become
solely entitled to the land and canleave it in a will should they wish.

A joint tenancy can be converted into a tenancy in common by the doctrine ofseverance
(See s. 91 (7) of Land Registration Act of 2012) through written agreement. Unless this is
done the rights of joint holders so remain. Other illustration of Joint tenancy.See also case
for Mwangi Gakuri v Bernard Kigotho Maina & another [2016] eKLR.

3.10.2 Tenancy in common

The share of the deceased devolves not to the other co-owner, but to the estate of the
deceased co-owner. Although the four unities required for a joint-tenancy may be present,
only one, the unity of possession is essential.

The share is undivided meaning that they are entitled to occupy the whole ofthe property
even if their share is small. There is still unity of possession andno physical division of the
land. The relevance of the shareholding is evident on sale, death or distribution of income
from the property.

Survivorship does not operate between tenants in common. Each tenant can nominate
who to leave their share in their will or if they die intestate their share will form part of
their estate (See s. 91 (5) of LRA 2012).

If any undivided share in land or a lease held by tenants in common is subjectto a charge, a
partition of that land or lease shall not be registered by the Registrar unless the lender’s
written consent is produced to the Registrar (SeeS. 97(1) of LRA of 2012).

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 3.11 Mortgages & Charges

These are a creation of statutes and have the effect of subjecting the propertyso burdened
to some limitations which have the potential to defeat the registered proprietor rights of
ownership with regard to such property.

Both serve the same purpose and are in the nature of encumbrances that playa significant
role in the capitalist mode of production. (See s. 56 of Land Act2012 on Charges)

Mortgages are a creation under the Indian Transfer of Property Act.They feature
prominently in borrowing transactions and it has been suggested thatthey perform certain
functions in a capitalist economy which include allowingpeople in the periphery of the
production process to be integrated into such aprocess.

Mortgages a means through which those desirous of owning homes can find an appropriate
institution to enable them fulfil the desire. Such institutions serve as a way of reallocating
property rights in the society in the sense thatin the case of a default in the loan, the
property becomes available to be soldin the common market

Property also guarantees that the person advancing the loan does not lose but it makes
available the money to acquire rights over property subject of sale.

The circumstances under which mortgages and charges can be said to be encumbrances are
what it entails. A person who wishes to borrow money from a financial institution must
offer security and land is one of the recognized means of offering security

When land is used as security a mortgage or charge is created upon the land through a
special instrument that conforms with the respective requirements of the law. This
instrument is then registered against the property you offer as security to the financial
institution. See sec 78 & 80 of the Land Act No.6 of 2012.

3.11.1 Creation of Mortgages & Charges

There are certain general principles that apply and they are essentially statutory
requirements. A Charge/Mortgage must be evidenced in writing under the Law of Contract,
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 Cap 23, Laws of Kenya and any purported instrument that is intended to pass as
charge/mortgage is ineffective unless it is in written form.

Mortgage/Charge must be in a prescribed form or instruments provided for under various

legislations which allow for creation and they must be registeredunder section 59 of ITPA
and 56 of LRA Act No .6 of 2012

The Instrument must contain acknowledgment signed by borrower to the effect that she/he
understands the effect of the transaction in particular the fact that upon default in
repayment, the property will be subject to sale as applied under S. 56(1) of LRA 2012.

3.12 The right of occupancy

It entitles one to enter land and build on land that does not belong to them. Many trusts
provide that a surviving spouse or another beneficiary has the right to live in a residence
rent free for the remainder of his or her life.

This type of provision is particularly common in a second marriage when the settlor (the
person creating the trust) comes into the marriage with a home that is separate property
and wants the surviving spouse to live there beforethe property passes to the settlor’s
children or other heirs as remainder beneficiaries.

Topic Summary

You know that:

Possessory rights in land (Either presently or in future) include:

a) Fee Simple Absolute-

b) Defeasible Estate-
• Fee Simple determinable with possibility of reverter
• Fee Simple subject to a condition precedent
• Fee Simple subject to an executory interest
c) Fee Tail
d) Life Estate
Non-possessory interests in land (An interest with a right that can be executedbut is not
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 presently possessed)

a) Easements
b) Profits
c) Covenants
d) Servitudes
In summary these rights include:

Exclusion

Possession

Use

Transfer as well as

Time

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 Further Reading

References:

Eduardo M. Penalver & Gregory S. Alexander, ‘An Introduction to Property

Theory’, University of Chicago - Law School & Cornell Law School, April 17, 2012

Guido Calabresi & A. Douglas Melamed, “Property Rules, Liability Rules, and
Inalienability: One View of the Cathedral”, Harvard Law Review, Vol. 85, No. 6.
(Apr., 1972), pp. 1089-1128

Phil Harris (2007) 7th Edition An Introduction to Law Cambridge University Press
(pgs110- 149)

Tom, Ojienda, (2008), Conveyancing Principles & Practice. LawAfrica.

Tom, Ojienda, (2015), Land Law and Conveyancing: Principles and Practice.
LawAfrica.

Statutes

The Constitution of Kenya (2010), Nairobi: Government Printer.

Land Act, Kenya Gazette Supplement No. 36 (Acts No. 6) 2012

Land Registration Act, Kenya Gazette Supplement No. 36 (Acts No. 3) 2012

Community Land Act No. 27 of 2016.

Case Law

Isabel Chelangat V Samuel Tiro Rotich & 5 Others [2012] eKLR

James Moses Thamu & Others v Joseph M Muiruri [2013] eKLR

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 Mugo Holdings Limited v Attorney General & another [2016] eKLR

Torino Enterprises Limited V Attorney General [2011] eKLR

Serah Mweru Muhu v Commissioner Of Lands & 2 others [2014] eKLR

Republic v National Land Commission & another Ex Parte Muktar SamanOlow

[2015] eKLR

Sharok Kher Mohamed Ali & Another V Southern Credit BankingCorporation

Limited [2008] Eklr

Albert Mario Cordeiro & another v Vishram Shamji [2015] eKLR

Gabriel Mbui v Mukindia Maranya [1993] eKLR

Activity

Carry out an analysis of the case laws discussed in this topic on indefeasibilityof title.

Assignment (Self- assessment)

“The old doctrine of indefeasibility of title is now a myth.” Anonymous.

Discuss.

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 TOPIC FOUR: FOUNDATIONS OF LAND LAW IN KENYA

Introduction

Welcome to Topic Four. This topic introduces you to the foundations of land law in Kenya,
the systems and regimes that governed land use and planningin Kenya before the repeals
and amendments that came with the enactment of the Constitution of Kenya 2010.

Topic Content

Previously, we learnt about evolution of property and referred to various perspectives

including theories of property and how the concept emerged withthe development of civil
society and disentanglement of family.

Jean Jacques Rousseau asserts that the emergence of civil society was precipitated by the
birth of the concept of property ownership the first personhaving enclosed a piece of
ground, bethought himself saying,” this is mine” and found a people simple enough to
believe him, was the real founder of civil society.”

The historical evolution of landholding in Kenya should be understood against the

background of colonialism as a phase of capitalist development.

The major imperialist powers, mainly France, Britain and Germany, met in Berlin in the
1884-5 Berlin conference & took a conscious decision to peacefully divide Africa amongst
them & thus avoid the “scramble for Africa”.

Foundation helps to look at the journey of the various stages of developmentthat the
Kenyan legislative framework on land has taken from pre-colonial period to present time.

It also provides opportunity to evaluate & critique each stage of legislative development
and the ramifications of colonialism on land holding in Kenya.

This is done through the different phases.

1. 1. Pre-colonial Phase I- Customary land tenure

African customary land tenure was based on cooperative while the English Feudal System

57 | P a g e
 was politically structured in terms of control and access to property. African customary
system- land use was determined by membership of community to land that was
communally owned. The rules regulating enjoyment on land were clearly outlined &
enforced either by the members themselves or by some selected groups within the
community

Property holding had the positive feature of ensuring that everyone had accessto land and
the notion of land as we know it today was completely alien. Units of property holding
were based on families & clans on the basis of whichproperty holding systems arrived. The
English land system was introduced alongside customary land tenure. Reason being that the
notion of property ownership was not clearly understoodby the native.

There was a misconception that an African did not actually own the house thathe occupied
and that it was thus imperative to determine the proprietary interests therein. The
introduction of foreign system of land holding had far reaching consequences that is felt in
Kenya to date on issues of land holdings and distribution. The settlers came from a
developed system of holding and thus needed assurances that in their new area of
settlement guarantee of safe ownerships to lands claimed. Hence the advent of
transplantation of English landholding systems in Kenya.

Through the extension of foreign laws to the protectorate and the promulgation of Orders
in Council and Ordinances, the colonial authorities acquired all lands in the protectorate
on behalf of His Majesty’s government. In 1887 the Sultan handed over the administration
of the coastal strip to theBritish East Africa Company on concession for 50yrs to administer
& collect revenue. The Company was later awarded the royal charter by the British Crown
in 1888 and became the Imperial East Africa Company (I.B.E.A.C) and was empowered to
administer the British sphere of influence beyond the coastal strip.

In 1894, IBEA Co promulgated regulations modelled on the 1894 Indian LandsAcquisition

Act. The regulations permitted IBEA Co. to lease land for certain purposes like grazing,
residential & agricultural activities. Through this it was possible to alienate parcels of land
to such persons as were desirous to owningsuch land.

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 In 1897 IBEA Co. promulgated further regulations allowing for the sale of freeholds within
the then 10 mile coastal strip which became part of the protectorate after the same was
ceded through a concession arrangement with the sultan of Zanzibar. IBEA Company was
able to deal with property beyond the 10 miles coastal strip, and granted 21 year certificates
of occupancy to individuals that were later transformed to 99 year leases

The leases were later transformed under the 1896 Uganda Railway Act whichalso allowed
for sale of land for agricultural purposes within the Railway zonefor purpose of allowing
agriculture to support the building and maintenance ofthe railway. All these actions were
undertaken by IBEA Co and not the actual British government but paved way for the
government to assume proper jurisdictionin line with opinions offered by the law officers
of the crown.

On the 10 mile coastal strip, the colonial regimes recognised the claims of theSultan of
Zanzibar and only subjects of Sultan could register land. In the coast,land was alienated and
taken by crown after agreement with the Sultan. The indigenous ‘mijikenda’ population
were turned into landless ‘squatters,’ being unable to register the land that they had lived
on for generations (OkothOgendo)

Land was alienated from customary systems, usually without compensation, for the use of
white settlers, who relied on African labor. Africans were restricted to “native reserves”
which formed the basis of ethnically-defined administrative units, which are the precursors
of today’s districts and locations. The natives land were more like concentration camps.

By 1934, white settlers who were a minority population, controlled about a third of the
arable land in the country.The Kenya Land Commission (The CaterCommission) was set up
to advice the government on land policy & this mainlyaimed at preserving & protecting the
white highlands settlements

This commission in its 1934 report noted that African had little claim to the Highlands (if
any) & further, if there were any claims at all, compensation ought to be paid rather than
giving the land to the claimants. It recommendedguarantee of settlers’ security of ownership
of the white highlands through Order-In-Council. This was done in 1939 vide the Kenya
59 | P a g e
 (Highlands).

It recommended guarantee of settlers’ security of ownership of the white highlands through

Order-In-Council. In 1939 Kenya (Highlands) Order-Council was enacted to protect the
white highlands. In the same vein Kenya (Native Areas) Order-In-Council was also enacted
in the same year and set up a newlyconstituted Native Trust Board (Crown Trust board).
This Board was to hold trust land for the natives.

The same Order-In-Council redefined Crown Land by amending the definitionof “land” in
the Government Lands (Repealed) Act (1915) - (GLA Cap 280 nowrepealed).

In 1938, the Native Lands Trust Ordinance was enacted. It came up with theland tenure
rules for the natives in 1956 which provided details of the legal regime for the
administration of African Reserves. This rulescommunal/familial ownership (as opposed to
individual ownership).

In 1904 the Maasai were moved from their preferred grazing grounds in the central Rift
Valley, to two ‘reserves’, and then in 1911 one of these reserves was again moved, against
the wishes of the pastoralists

The Kikuyu were another community hard hit by excisions of land, such as the 60,000
hectares converted to European coffee farms in Kiambu. The commercialization of the
Kikuyu economy, led to the emergence of a wealthylandowning class, to the detriment of
larger land poor and landless classes. For the first time the theory of eminent domain was
extended to property relations in Kenya.

Crown Lands Ordinance vested land in government or lord who in turn had powers to
grant it to the subjects. The Ordinance conferred power upon the commissioner to make
grants of 999 year lease to the settler upon conditionsset in the grant.

The Transfer of Property Act of India and the Registration of Titles Ordinancescame in
handy to safeguard security of tenure of title holders.

During colonial period there was a dual system of property holding. E.g. landremained

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 customary but only changed its status when acquired by the settlers&came within the ambit
of registration & governed by statute.

The period famous for main events: alienation of land, imposition of English property law
& transformation of customary land law and tenure which has continued to date (Smoking
Wanjala).These changes in the land holding presented challenges & hence need for reforms
in the sector (camouflaged) to benefit Africans in agriculture production.

African farms were perceived as non-performing and several factors were attributed to this.
One was the use of very old methods of farming and reliance on small pieces of land by
so many people were factors identified ascontributing to the poor performance of the
agricultural sector. Therefore in the 1950’s several land initiatives came up to change that.

Adjudication and consolidation process was undertaken to improve Agricultural output.

The reforms introduced land registration, consolidation and adjudication. Now titles were
conferred to individuals and not the whole community. Reason: Individual tenure &not
communal ownership would boost the morale of the individuals as any effort made
towards developing the property could be his to keep and reap the benefits arising there
from.

This ushered in individualization of titles that created more problems as not everyone could
be registered as owners in the already small acreage of the land holding. According to
Mbote, the whole idea of doing this was to entrench a dominanteconomy for the white
settlers while subjugating Africans through legal and administrative mechanisms

The idea was mainly to ensure that the white settlers entrenched themselvesin the land in
Kenya and to maintain the rights they had to land so that they did not have to give back
to the natives. It had nothing to do with improvingagricultural production for the Africans.

This system of land titling culminated in landlessness & land disputes of ownership in many
parts of Kenya particularly in Central and Rift Valley areasa higher level of such problems
because of the very high population density. The areas were also affected by the upheaval
of the 1950s in the run up to independence.

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 4.2 Colonial Period:

It concerned with individualization of title. This brought more problems as those who
ended up getting the titles were the wrong the ones. Those who were given titles were
mainly the collaborators of the settlers as majority of the owners were either in the forest
fighting the white man’s rule or detainedin concentration camps.

4.3 Phase III: Independence & After

The land question remained a thorny issue just as liberation in the 1950s.Liberation
struggles &land question were common problems for Africans who wanted to be liberated
from the colonial yoke. The narrative wasthat the colonialists came & stole the land &
marginalized the local people.

Dismantling what had been done by the colonialist was the surest way of restoring Africans
back to their old land holding system. This meant restoringtheir freedom & returning their
land that had been irregularly taken from thepeople by the settlers.

This period characterized with mushrooming of freedom movements with far reaching
effects on the government of the day. The new independent state created, inherited the
mode of the operation from the colonial regime in termsof land adjudication, consolidation
and registration.

At the point of negotiating for independence one of the key conditions for relinquishing
power to Africans was guarantee of protection of property rights. The Lancaster Conference
1954 agreement was reached to give resources tobuy out settlers who wanted to move
away settle somewhere else. Property rights became part of that document and retained
the dual land holding system created by colonialist.

The independence Constitution had provisions which tied the hands of the government.
Land could not just be acquired for redistribution to the landlessAfricans without full and
prompt compensation for the settlers. This was the beginning of not only the retention of
the colonial laws and policies, but also their entrenchment to this day. (Smokin ownership
page 31)

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 The Independence transfer of power to the indigenous did not do away with the settlers
policies, the legacy was retained through laws & administrative mechanisms. These
mechanisms largely worked in favour of the settlers andthe ruling elites. The land tenure
system which was introduced by the settlerswas alien to Africans. It vested property in the
state and the state in turn gavesubsidiary rights to the citizens (Okoth Ogendo Tenants of
the Crown).

At independence only three property regimes existed, i.e. ITPA, Registered Land Act and
Customary law. The five major laws that regulated land were the:

• Registration of Documents Cap 285,

• Government Land Cap 280,

• Registration of Titles Cap 281,

• Land titles Act Cap 282, and

• Registered Land Act Cap 300

The question of landlessness at independence had to be addressed and thus the British
Government in concert with the independence government embarked upon a programme
of purchasing land and availing the same to thelandless.

A process of land adjudication, consolidation and registration, of the arable land in the
country, resulted in heads-of-household being granted individual rights to land, at the
expense of the rights of female relatives and those withcustomary rights of use or tenancy.

Collective forms of tenure for local tenure systems, were not supported by legislation and
land could not be registered collectively.

4.4 Independence Constitution

Under the Independent Constitution of Kenya, land was held under public, private or
community tenure system. Land tenure entails the manner in whichindividuals or groups in
society hold or have access to land. Tenure in Kenyabefore the advent of colonialism was
fundamentally different from that in feudal England, from which alien law was imported.
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 The most common tenure during that period in question is what can be termedas communal
tenure where land belonged to no one individual in particular but the community as a
whole.

Topic Summary

You can now discuss the historical development of land law in Kenya. The historical
milestones in the development of land law in Kenya beganwith the extension of
jurisdiction from England to Kenya throughcolonization.
This development can be summarized as:
o Acquisition Phase(1890-1920)
o Imposition Phase(1920-1950)
o Transformation Phase(1950-2009)
o Modern Phase(2009-Present)

Further Reading

Mandatory Reading

H. W. O. Okoth-Ogendo, Tenants of the Crown: Evolution of Agrarian Law &

Institutions in Kenya, ACTS Press, Nairobi (1991)

Kameri-Mbote, P., Odote, C., Musembi, C. &Kamande, W., (2013) Oursby Right:
Law, Politics, and Realities of Community Property in Kenya Nairobi: Strathmore
University Press

Patricia Kameri-Mbote & Kithure Kindiki ‘Trouble in Eden: How and Why
Unresolved Land Issues Landed “Peaceful Kenya” in Trouble in 2008’, Forum for
Development Studies, Oslo, Norway, Volume 1, 2008 (January, 2009) pp. 167-193
http://www.ielrc.org/content/a0805.pdf

Patricia Kameri-Mbote ‘Righting Wrongs: Confronting Land Dispossession in Post-

colonial Contexts’, East African Law Review,University of Dar es Salaam (2009).
Pp. 103-124

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 Patricia Kameri-Mbote, Property Rights and Biodiversity Management inKenya: The
case of Land Tenure & Wildlife, ACTS Press, Nairobi (2002)

Report of the Commission of Inquiry into the Illegal/Irregular Allocationof Public

Land (Ndung’u Commission Report), 2004

Republic of Kenya, Sessional paper Number 3 of 2009 on National Land Policy

(Government Printer, August, 2009)

Smokin Wanjala, Essays on Land Law: The Reform Debate in Kenya, Historical
Background (Chapters 1, 2 & 3) (Faculty of Law, University ofNairobi, 2000)

The Commission of inquiry into existing land law and tenure systems(Njonjo
Commission Report), 2002

Tom, Ojienda, (2008), Conveyancing Principles & Practice. LawAfrica.

Tom, Ojienda, (2015), Land Law and Conveyancing: Principles andPractice.

LawAfrica.

Statutes

The Constitution of Kenya (2010), Nairobi: Government Printer.

The Indian Transfer of Property Act 1882

The Government Lands Act, (Cap 280) (Repealed)

The Registration of Titles Act, (Cap 281) (Repealed)

The Land Titles Act, (Chapter 282) (Repealed)

The Registered Land Act, (Cap. 300) (Repealed)

TOPIC ACTIVITIES

Activity

(Do you think the settlers stole people’s lands?)

Would Kenyans be better off if the lands were left for them?
65 | P a g e
 TOPIC FIVE: FORMS OF LAND TENURE

Introduction

Welcome to topic five. By way of introduction you need to be familiar with thisimportant
issue of tenure of land as it relates to property law. There are a number of factors which
will emerge that will distinguish land from other categories of properties that we have
learned about in property theory and hence the significance that it is given in that
connection. Tenure denotes the recognition of a right; the right to own, use among others.
Topic Content

5.1 Land Tenure

Land Tenure is defined as the relationship which can be legally or customarily defined
among people as individuals or groups. It also referred to as an institution-rules invented
by societies to regulate behaviour. The rules of tenure define how property rights to land
are to be allocated within societies and how access is granted to rights to use, control and
transfer land.

The Pre-colonial Kenya mode of land holding was through a non-specific authority within
the clan or lineage or families. This mode changed with colonialism when English system
of property law was introduced and it is thesystem we use to date.

Article 61 of the Constitution of Kenya 2010, vest land in the people of Kenya.Therefore the
people of Kenya collectively as a nation, community and individuals own all land in Kenya.

Art 60 (1) of the Constitution of Kenya stipulates principles of upon which landis managed
that is equitable, efficient productive & sustainable as follows:

• Guarantees equitable access rights,

• Security of land rights,

• Sustainability of land resources,

• Transparent and cost effective land administration,

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 • Conservation and protection of ecological resources,

• Elimination of gender discrimination in land holding & use, and

• In a manner that promotes local community initiatives in resolution ofland
disputes in accordance with the Constitution.

5.2 Forms of Tenure

Section 5(1) of the Land Act, No. 6 of 2012, provides the following forms of Land tenure:

a. Freehold;
b. Leasehold;
c. Such forms of partial interest as may be defined under this Act and otherlaw
including but limited to easements; and
d. Customary land rights
5.3 Intersecting interests in Land Tenure

Overriding interests: when a sovereign power (e.g., a nation or community has the powers
to allocate or reallocate land through expropriation, etc.)

Overlapping interests: when several parties are allocated different rights to the same parcel
of land (e.g., one party may have lease rights, another mayhave a right of way, etc.)

Complementary interests: when different parties share the same interest in the same parcel
of land (associated with common rights e.g. grazing land, etc.)

Competing interests: when different parties contest the same interests in thesame parcel
(Land disputes arise from competing claims.)

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 5.4 Categories of Land Tenure
5.4.1 Private:

This is the assignment of rights to a private party who may be an individual, a married
couple, a group of people, or a corporate body such as a commercialentity or non-profit
organization.

Private land is land lawfully held, managed and used by an individual or otherentity under
statutory tenure. (Art. 64 of Constitution of Kenya, 2010).Under the Independence
Constitutional regime, private tenure derived legitimacy from the Government Lands
(Repealed) Act, Registration of Titles (Repealed)Act, Land Titles (Repealed) Act, Registered
Land (Repealed) Act, Trust Land Act, the Indian Transfer of Property (Repealed) Act and
the Sectional Properties Act.

The Private tenure emphasized indefeasibility of title except in cases of fraudto which the
proprietor is a party. Non-citizens can hold land only on basis of land tenure for a
maximum of 99yrs.

5.4.2 Public land (state):

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 Source: content.magicbricks.com

Property rights are assigned to state, whether at a national or county level ofgovernment. This
is land owned by government. Public land:

a. Includes un-alienated government land as at the effective date;

b. land held used or occupied by any State organ other than private leases;

c. land sold, reverted or surrendered to the State;

d. land in respect of which neither individual nor communal ownership canbe legally
established; and

e. land in respect of which no heir can be legally identified.

f. These categories of land are administered by the National LandCommission

under the Constitution of Kenya, 2010.

g. County governments hold land in trust for the respective counties

h. Other categories of public land by statute include

• Minerals and mineral oils; forests other than those falling in community
lands;

• reserves, water catchment areas, national parks, government animal

sanctuaries & protected areas;

• roads and thoroughfares; water bodies; territorial sea, exclusive economic

zone, the sea bed, continental shelf, land between the high and low water
marks.

Art 62 (3) of the Constitution of Kenya states that Public Land vests in and isheld by the
national government in trust for the people of Kenya & administered on behalf of the
Kenyan people by the National Land Commission. Public land can only be disposed
under a statute. (Art 62(4) of the Constitution of Kenya (2010)).

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 5.4.3 Community land:

Source: monitor.co.ug

This is land owned by the community. Each member has a right to use independently the
holdings of the community. For example, members of a community may have the right to
graze cattle on a common pasture.

Land owned by community vests in and is held by communities on the basis of ethnicity,
culture and similar interests. It comprises land:

• registered in the name of group representatives;

• legally transferred to a specific community;

• held, managed or used by specific communities as forests, grazing areasor shrines;

• Traditionally occupied by hunter-gatherer communities;

• trust land held by county governments other than public land; &

• land statutorily declared as community land under Article 63 (1) & (2) of the
Constitution of Kenya)

Under Article 63 (3) & (4), unregistered community land is held in trust by county
government on behalf of communities for which it is held and it can only effectively
disposed under a statute.

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 The Community Land Act No. 27 of 2016 was enacted to operationalize Article63 (5) of the
Constitution of Kenya on the issue of recognition, protection andregistration of community
land.

The Act provides for the management & administration of community land. Section 4
provides that Community Land shall vest in the people. Community land comprises
customary, freehold, leasehold and any other tenure recognized by law. It also provides
that County Governments shall hold all unregistered community land on behalf of
communities which are estopped from converting, or transferring community land for
private purposes. In all dealing the rights of community takes priority.

5.5 Transfer of Property Rights

A Proprietary Right is defined as a right that is part of a person’s estate, assets,or property as
opposed to the person’s legal status.

5.6 Transfer can be any mode of disposing of or parting with an asset or aninterest
in an asset. It also means to pass or handover from one to another to change
over the possession. In a nutshell, it is the conveyance of or title from one person
to another. Therefore, transfer of proprietary rights is a right over ownership of
property or a thing. Thetransfer can be conveyed through various modes such as
an owner of property may transfer property through gift or sale.

Other modes of property rights include:

• Indorsement: The act of transferring all the rights represented by theinstrument to

another individual e.g. in negotiable instruments such aspromissory notes or checks.
Another example is a mortgage redemptioninsurance wherein part of the proceeds
of the insurance of a borrower,equivalent to the outstanding loan with a bank, is
transferred to the mortgagor-bank upon the insured's death.

• Assignment- process through which a person (assignor), transfers rights or benefits

to another (assignee). The assignor transfers the complete remainder of the interest
to the assignee without retaining any sort of reversionary interest in the right to

71 | P a g e
 possess e.g. mortgages , transfer interest in a mortgage by one mortgagee to another
mortgagee

• Operation of the law- right created through the law e.g. adverse possession,
survivorship in joint tenancy, transmission of property up- on death (intestate
succession)

5.7 Modes of Transfer

Transfer by contract: The owner makes a contract during his life- time as to the
beneficiary to whom the asset should be transferred to upon his death e.g. retirement
benefits, annuities and life insurance policies

Transfer by trust: property is transferred to a trustee who manages anddistributes that

property for the benefit of the beneficiaries of the trust. Trust here is created at two
levels either inter vivos trust (living trust) or testamentary trust (created under a will)

5.8 Relevant Legislation on Transfer of Property:

5.8.1 Advocates Act: (Sections 9, 34, 35)
• Section 9: Qualifications for practising as an advocate.

• Section 34: Unqualified person not to prepare certain documents or

instruments.

• Section 35: Instruments to be endorsed with name and

address of drawer.

5.8.2 Advocates Remuneration Order 2014:

Schedule 1- makes provision for advocate’s fees with regard to different

transactions

5.8.3 KRA Guide on payment of stamp duty through itax:

Gives guidance's on procedure for paying relevant taxes such as stamp duty,both buyer &

72 | P a g e
 seller must have a Pin No. to transact.

5.8.4 Land Act No. 6 of 2012

Methods of acquisition of title to land.

Section 7 provides that title to land can be acquired through:

i. Allocation;
ii. Land adjudication process;
iii. Compulsory acquisition;
iv. Prescription;
v. Settlement programs;
vi. Transmissions;
vii. Transfers;
viii. Long term leases exceeding twenty one years created out of privateland; or
manner prescribed in an act of parliament.

5.8.5 Transfers (General provision on transfers)

Section 43 (1) of the Land Act defines a transfer as a conveyance, an assignment, a transfer
of land, a transfer of lease or other instrument used inthe disposition of an interest in land
by way of transfer

Transfer can either be with or without consideration and must be completed with
registration.

5.8.6 Land Laws amendment Act No. 28 of 2016

Section 18 relates to the execution of documents by companies and cooperative societies

as well as documents signed out of the country that requires registration and manner of its
execution and attestation.

5.8.7 Land Registration Act No. 3 of 2012:

Section 2 of LRA No. 3 of 2012 defines a transfer as the means of passing of land, lease or

73 | P a g e
 a charge from one party to another by an act of parties and notby operation of law. It also
refers to it as the instrument by which any such passing is effected. Thus a party can give
away some of his/her rights but still remain the owner for instance as in the case of
easement or can also transfer the entire interest in the property.

Section 37 LRA 2012, stipulates circumstances under which a transfer can be effected. A
proprietor can thus transfer land to any person with or without consideration by an
instrument as prescribed or in a form that the registrar approves. A party transferring must
file the instrument and new owner registered either as a proprietor of land, lease or charge.
An owner of property can transfer her/his interest in land by way deed, will and
mortgage/charge. A transfer takes effect only when it is registered

• S. 14 -General powers of the Registrar of Titles.

• S. 24-Interest conferred by registration.

• S.26- Effect of transfer- Certificate of title to held as conclusiveevidence of

proprietorship.

• S.31- Production of certificates.

• S.34―Searches and copies.

• S. 43- Instruments of dispositions.

• S.44- Executions of instruments in writing.

• S. 45- Verification of execution.

• S. 46- Minors.

• S. 48―Agents & persons under disability.

5.8.8 Stamp Duty Act, Cap 480

• S. 5 -Liability to stamp duty.

• S. 6- Time of stamping and liability for stamping.

• S. 8.- How instruments are to be written and stamped

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 • S. 10- Facts and circumstances affecting duty to be set out ininstruments.

• S.10A. -Valuation by Government Valuer.

• S.12 - Instruments to be in English.

• S.19- Non-admissibility of unstamped instruments in evidence; andpenalty.

• S.20- Stamping out of time.

• S.23 -Instruments executed out of Kenya.

Transfer of Property involves some action by the parties themselves. It can bethrough sale
that is buyer to seller.

A Sale agreement is executed by both parties who sign prescribed forms whichare in turn
registered upon requisite payment of relevant fees – stamp duty, rates land rent depending
on the location of the land.

Topic Summary

You now know that Land Tenure is defined as the relationship which canbe legally
or customarily defined among people as individuals or groups.These are rules that
define how property rights to land are to be allocated within societies and how
access is granted to rights to use, control and transfer land.
You now know about the intersecting interests in land tenure which include the
Overriding interests, Overlapping interests, Complementary interests and
Competing interests.
You can discuss the categories of land tenure and their descriptions (private, public
and community)
You can now discuss the laws and regulations that govern land use under the
different forms of land tenure.

Further Reading

Mandatory Reading

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 A. J. Oakley, Megarry’s Manual of the Law of Real Property (Sweet &

Maxwell, 2002).

H. W. O. Okoth-Ogendo, Teaching Manual on the Law of Property in Land, vol.

II.

Meggary and Wade 2012 8th Edition The Law of Real Property

Odote, C. The Legal Land and Policy Framework Regulating CommunityLand In

Kenya an Appraisal Nairobi: FreidrichEbertsTiftung

Okoth Ogendo, H, (1996), Reforming Land Tenure in Africa: Conceptual

Methodological & Policy Issues. London School of Economics and Political Science.
Wanjala, S., et al. (1997), Democratization and Land Reform in Kenya. Clari press
Ltd.

Patricia Kameri-Mbote, Collins odote, Celestine Musembi & Wilson Kamande

(2012) Ours by Right: Law, Policies and Realities of Community Property in Kenya
International Environment ResearchCentre

Patricia Kameri-Mbote. “The Land Question in Kenya: Legal and EthicalDimensions”

in Governance : Institutions and Human Conditions,Strathmore University & Law
Africa pg 219-246
http://www.ielrc.org/content/a0910.pdf

Report of the Commission of Enquiry into Illegal/Irregular Allocation ofLand,

Republic of Kenya, 2004

S Joseph Kieyah and Patricia Kameri-Mbote “Securing Property Rights

in Land in Kenya: Formal Versus Informal” in Christopher Adam et. al.eds, Kenya
Policies for Prosperity (Oxford: Oxford University Press,2010), p. 309-328

Singer J. W, Berger B R, Davidson N. M Penalver (2014) Property Law:Rules,

Policies and Practices, Wolters Kluwer Law and Business 421-501

76 | P a g e
 The Final Report of the TJRC, The Truth, Justice and Reconciliation
Commission of Kenya, 2013

Tom, Ojienda., (2015), Land Law and Conveyancing: Principles andPractice.

Law Africa.

Statutes

The Constitution of Kenya (2010), Nairobi: Government Printer.

Land Act, Kenya Gazette Supplement No. 36 (Acts No. 6) 2012

Land Registration Act, Kenya Gazette Supplement No. 36 (Acts No. 3)2012

The Trust of Land Act (Cap. 290)

The Perpetuities and Accumulation Act No. 6 1984

The Sectional Properties Act No. 21 of 1987.

The Registered Land Act (Cap. 300) (Repealed)

Republic of Kenya, Sessional paper Number 3 of 2009 on National LandPolicy

(Government Printer, August, 2009)

Case Law

In the Matter of the National Land Commission [2015] eKLR

In the matter of the National Land Commission, Advisory Opinion

Reference No. 2 of 2014, Supreme Court of Kenya.

Kiluwa Limited & another v Commissioner of Lands & 3 others [2015]eKLR

Republic v Registrar of Titles & another Ex-parte David Gachina Muriithi& another
[2014] eKLR

Joseph Letuya & 21 others v Attorney General & 5 others [2014] eKLR

M'ithana M'thiring'a v Murithi M'amburubua [2016] eKLR

77 | P a g e
 TOPIC ACTIVITIES

Activity

Carry out a review of the land law reforms including the National Land Policy,Ndungu
Commission Report and the Constitution of Kenya

78 | P a g e
 TOPIC SIX: ADMINISTRATION AND MANAGEMENT OF LAND

Introduction

Source: EE Publishers

Welcome to topic six. This topic covers the mechanisms that have been put inplace to
enable effective allocation of land rights. Management and administration of land takes a
multidisciplinary approach and involves many stakeholders. It is done through policies,
legislation and institutions. The Constitution of Kenya, 2010 ushered in a new era in
management of land in the country; principles of land policy and establishment of new
institutions.

6.1 Land management:

This is the process of managing the use & development (in both urban and rural settings)
of land resources.

Land resources- various use: include organic agriculture, reforestation, water resource
management and eco-tourism.

Land is provides a place to live, grow food, access resources for construction,development
and other economic purposes.

According to the UN Convention to Combat Desertification (UNCCD) 1994,

desertification, land degradation & drought affect more than 2 billion people. This has
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 escalated because of unsustainable use of soil and water. Land management is key in
protecting the productive capacity of land and encouraging, and promoting sustainable
land management.

According to International Land Coalition, land rights are fundamental in addressing

challenges facing humanity that is achieving gender equality, overcoming rural poverty,
building fair & sustainable food systems that recognize small-scale producers, peace-
building, mitigating & adapting to climate change, managing ecosystems, & reversing land
degradation.

Practical solutions to the challenges of land and natural resources management in Kenya
can be achieved through Land Laws & Policy; effective coordination of the competing
sectors over land use; understanding of land tenure; & addressing land related conflicts.

Land grabbing and illegal allocations of land have had ramifications in the country fueling
more problems than solutions to land management.

The Ndungu Commission was set up Former, President Kibaki in June 2003 toinquire into
the unlawful allocation of public lands, ascertaining the beneficiaries, identifying public
officials involved in illegal allocations, and making recommendations for appropriate
measures for the restoration of illegally allocated lands to their proper purpose, for
prevention of future illegalallocations, and for appropriate criminal prosecutions.

It is instructive to note that the Commission released its report on 16th December, 2004 but
it has not been implemented to date. The menace has still persisted.

Land in cities, municipalities, townships & government lands were indiscriminately

apportioned by Commissioners of Lands through abuse of the presidential discretion to
apportion such lands. (Ndungu Report 2004)

Land acquired for public use were illegally allocated through forged letters anddocuments
and converted to private land State corporations were used as conduits for land grabbing
through which thepublic lost colossal amounts of money; the land was illegally allocated
to individuals or companies. The land would be sold at less than market value toallottees,
80 | P a g e
 who would then re-sell it to other state corporations at exaggeratedcosts.

Settlement schemes were not spared. They were abused by Settlement FundTrustees &
District Plot Allocation Committees. Trust lands, which were to beheld by local authority
in trust for the local benefit of residents of the local authority, were illegally allocated to
individuals & companies by county councils in well calculated schemes with the
Commissioners of Lands.

Forestlands, national parks, game reserves, wetlands, riparian reserves and protected areas
were illegally and irregularly excised and allocated for privateuse.

Public land was illegally grabbed at the expense of public interest to reward cronies. Courts
were used to shield illegal beneficiaries of land & to protect illegally acquired land under
the pretext of “first registration.” Examples include: Ambale vs. Masolia (1986) KLR 241.
The court held that a first registration is indefeasible even if there is allegation of fraud or
mistake. Seealso Mugogo vs. Sihowa(1988) KLR 1 and Ochola v Obeti [2004] eKLR.

The Land issue has always been with us. The TJRC Commission set up in 2009also looked
into the historical land injustices & like Ndungu Report is gatheringdust.

In 2009, the government developed the National Land Policy to deal with someof the land
issues including historical injustices as well as sustainable land management. Since 2010
many initiatives have been undertaken to rectify the anomalies of the past. Even though
not a hundred percent solution but they are steps in the right direction.

The Government has undertaken initiatives to help address some of the landproblems in
the country. Clears laws and policies are now entrenched such asthe Constitution, Land Act
2012, Land Registration 2012, National Land Commission Act 2012 and Community Land
Act 2016. Some of the institutions established include the Land & Environment Court,
National land Commissionand the District Land boards.

The creation of the National Land Commission stemmed from Paragraph 228 of the
National Land Policy which took cognizance of the bureaucracy involvedin the institutional
framework for land administration and management.

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 Its centrality made it prone to corruption & inefficient in service delivery and operated in
a closed door manner without public participation & lacked accountability. It
recommended a different outfit that would correct this and that is a National Land
Commission that is autonomous to reduce the powersthat was previous misused by the
Commissioner of lands and the Minister forLands.

The National Land Commission therefore is accountable to the people of Kenya

and reduces the Cabinet Secretary’s function to that of Policy direction.

Article 62(2) of the Constitution of Kenya mandates the National LandCommission to

administer public land on behalf of county governments. Public land here denotes
government land. Article 62(3) of the Constitution of Kenyamandates the National Land
Commission to administer public land on behalf of national government. Here public land
denotes minerals, forest, water lakesthorough ways, territorial sea among others

Article 67(2) (a) of the Constitution of Kenya mandates the National Land Commission
“to manage public land on behalf of the national and county governments. S. 8(a) of the
Land Act mandates the National Land Commissionto identify, prepare and keep a database
of all public land.

S. 17(3) of the Land Act mandates the National Land Commission to approveplans for the
development, management and use of reserved public land vested in a management body,
but in compliance with relevant law on development control.

The mandate of the National Land Commission to “manage” and “administer”public land,
unregistered trust land, and unregistered community land has been confirmed by the court.
See case of the Republic versus County Government of Kiambu& 2 Others, Justice G.V.
confirmed the mandate asentrenched in the const.

Similarly Justice Majanja in Serah Mweru Muhu versus Commissioner of Lands & 2 Others,
stated as follows:

“As I conclude, I note that following the overhaul of land management in the
country following the promulgation of the Constitution and the establishment of

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 the National Land Commission, the office of theCommissioner of Lands ceased to
have overall responsibility over land management in the country...”

6.2 Land Allocation

There existed a stalemate initially between the Ministry of Lands and the National Land
Commission because the Ministry could no longer allocate publicland. The Land Act 2012
and the Constitution of Kenya has given that power to NLC on behalf of the national &
county governments. See section 12 generally on allocation public land. It is required to be
done by way of public auction to the highest bidder at prevailing market values, subject
to, or not less, than the reserved price. Public land not to be allocated unless it has been
planned, surveyed & serviced and that guideline for its development must beissued before
allocation.

In allocating public land the National Land Commission must:

Fifteen (15) days’ notice give to public to comment on the same; ensure that
the land falls within the land described in S. 12 (2) of Land Registration Act,
i.e. not subject to erosion or floods; not forest or wild life reserve, wetlands or buffer zone;
land along watershed, river and stream catchment areas, lakesbeaches, territorial sea; land
reserved for strategic public purpose; natural orcultural land of national value; and reserved
land.

Such allocated land shall not be sold, disposed of, sub-let or sub-divided unless it has first
been developed for the purpose for which it was initially allocated. The criteria for
allocation are also provided. The National Land Commission must publish or send a 30-
day notice informing the public and other interested parties of the intention to allocate
public land.

Section 14 of the Land Act deals with the notification requirements applicableto allocation
of public land. It provides that:

• Notice shall include the terms, covenants, conditions & reservations which are to be
included in the conveyance document &the method of allocation;

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 • NLC to send to the respective governors a thirty (30) days of intention to allocate
the public including the head of the governing body of any administrative
subdivision having development control or other land useregulatory responsibility in
the geographic area within which the publiclands are located .

• Such notice must be published in the Gazette at least once every weekfor three
weeks and thereafter published in the Newspapers for generalinformation to the
public.

Section 15(1) of the Land Act mandates the NLC to reserve public land for purposes in the
public interest.

S. 16 gives NLC power to vest the care, control &mgt of any reserved land with a statutory
body, public corporation or a public agency for the same purpose as that for which the
relevant public land is reserved under s. 15 & for purposes ancillary or beneficial to that
purpose. The powers granted can be revoked if the institution does not comply with the
conditions imposed by NLC.

Section 5(2)(a) of the National Land Commission Act No. 5 of 2012 mandates the
Commission to, “on behalf of, and with the consent of the national and county
governments, alienate public land.” The National Land Commission is therefore required
to seek consent of the “National Government” or “County Government” in alienating
public land. Section 12(1) of the Land Act No. 6 of2012 reinforces the mandate of the NLC
to alienate public land on behalf of County and National government through public
auction.

Section 12 (5) of the National Land Commission Act provides that the NLC inconsultation
with the National and county government, is empowered to allocate land to foreign
governments on a reciprocal basis in accordance with the Vienna Convention on
Diplomatic Relations. Upon expiry of the lease, theinterest in land reverts to county or
national government depending on initialownership status.

The mandate to dispose of or affect interest in public land vests with the National Land
Commission, unlike the previous legal order where the President, Commissioner of Lands
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 and Local Authorities were mandated to dispose of Public land and Trust land.

Article 62(4) of the Constitution of Kenya requires that disposal of public landmust be
sanctioned by law and consent must be given by the national government or
respective county government. This serves as a safety measure to forestall abuse that
characterized the past regimes.

Section 107(1) of the Land Act, mandates the National Land Commission to receive requests
from national or county government to compulsorily acquireland on their behalf in public
interest or public use. The NLC should also manage the process of compulsory acquisition
on behalf of national or countygovernment and award compensation.

Settlement Schemes are also at the purview of National Land Commission. See the
following cases:

• Stephen Wambua Kithuka (Suing on behalf of Getrud Bint Ali & Crispus Singo) vs
Abdul Karim Omar, Malindi ELCC No. 92 of 2011.

• Justice A.O. Angote, at paragraphs 46-55 of in her Judgment in the caseof Mohamed
Ahmed Khalid (Chairman) & 10 Others vs. Director of Land Adjudication & 2 others
Malindi ELCC No. 3 of 2013

6.3 Land Administration

Land administration is the manner in which the rules of land tenure are applied and
made operational. It has range of systems and processes to administer and include the
following:

• land rights: the allocation of rights in land; the delimitation of boundaries of

parcels for which the rights are allocated; the transferfrom one party to another
through sale, lease, loan, gift or inheritance; and the adjudication of doubts and
disputes regarding rights and parcel boundaries.

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 • land-use regulation: land-use planning and enforcement and the adjudication of
land use conflicts.

• land valuation and taxation: the gathering of revenues through forms of land
valuation and taxation, and the adjudication of land valuation and taxation
disputes

6.3.1 Enforcement of Land Administration

Land administration is implemented through sets of procedures to manageinformation on

rights and their protection. They include:

• Procedures for land rights include defining how rights can be transferred from
one party to another through sale, lease, loan, giftand inheritance.

• Procedures for land use regulation include defining the way in whichland use
controls are to be planned and enforced.

• Procedures for land valuation and taxation include defining methodologies for
valuing and taxing land.

Management of public land (national and county government) is done ontheir

behalf by the National Land Commission, (S. 8 of the LRA 2012)

6.4 Conversion of land

S. 9 of the Land Act 2012, makes provision of conversion of any categoryland e.g.

• Public land can be converted to private land by alienation

• Public land may also be converted to community land depending on the
needs e.g. public needs defence, public safety, public order, public
morality, land use planning

• Private land can be converted into public land through compulsory

acquisition, reversion to the government, transfersor surrender

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 • Community land can be converted into private or public land

Approvals to convert public land to private land must be sought fromNational

Assembly.

6.5 Administration of Public Land

Administration is done through leases, licenses and agreements of public land.

S. 20- 36 of the Land Act generally stipulates the procedures. The lease or license is granted
subject to a fee and an implied term that the lessor has fullpowers to grant to the lessee or
licensee.

Buildings or any public land whose lease exceeds 30yrs reverts to governmentupon expiry
of the lease unless contrary is spelt out in the lease agreement. For leases under 30yrs, the
building belongs to the lessee and can be removedupon expiry of the lease.

6.6 Administration of Private Land

Administration of private land addressed in section 38-54 of the Land Act, 2012. It is done
through a contract of sale of land, transfers and transmissionsthrough death or bankruptcy.

Contract of sale of land must be in writing and signed by both parties as provided for under
section 38 of the Land Act, 2012, although this requirementdoes not affect land sold in a
public auction.

Under Section 39 of Land Act, 2012, the Vendors right to regain possession where there is
a breach on part of the purchaser. He/she can resume possession peacefully or regain
possession through a court order as stipulatedin section 41 of Land Act. A Vendor is entitled
to damages where there is a breach of contract.

Private land is land lawfully held, managed and used by an individual or otherentity under
statutory tenure. (Article 64 of Constitution of Kenya, 2010).Thelegal framework on land
confers upon the National Land Commission certain functions concerning private land. All
land, including private land, must be valued, and stamp duty assessed and paid before
interest in land can be registered at the land registry.

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 Article 67(2)(g) of the Constitution of Kenya mandates National Land Commission to
“assess tax on land and premiums on immovable property inany area designated by law”

Section 28 of the Land Act provides that all payments to all interest in land isassessed and
payable to NLC which includes transaction affecting land such as leasehold interest or lease,
or license.

Section 55(b) of the Land Registration Act confers to the National Land Commission Act
powers to issue land rent clearance certificate and the consentto the lease before dealing with
the land.

Section 56(4) of the Land Registration Act provides that no registration of a charge in
private land can take effect until the chargor first obtains from the National Land
Commission a land rent clearance certificate and the consent to charge.

Section 5(2) (b) of the NLC Act mandates the Commission to “monitor the registration of
all rights and interests in land including interests in Private Land.

Topic Summary

You now know that Land management is defined as the process of managing the
use & development (in both urban and rural settings)of land resources while land
administration is the manner in which the rules of land tenure are applied and made
operational.
The National Land Commission is mandated to administer public land onbehalf of
county governments by virtue of Article 62(2) of the Constitution of Kenya.
You now know of the various laws and regulations that govern land administration
and these include the Constitution of Kenya, 2010, National Land Commission Act,
Land Act and Land Registration Act among others.

Further Reading

Mandatory Reading

1. Grant S. Nelson et al, Contemporary Property (American Casebook Series, 1996)

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 2. J. Oakley, Megarry’s Manual of the Law of Real Property (Sweet & Maxwell, 2002).

3. John Stevens & Robert A. Pearce, Land Law (Second Edition Sweet & Maxwell,
2002).

4. Jon W. Bruce & James W. Ely, Cases and Materials on Modern Property Law
(American Casebook Series, 1999)

5. Kevin Gray, Elements of Land Law (Second Edition, Butterworths,London, 1993)

6. National Land Policy Reform Process, Concept Paper (2004)

7. National Land Policy Reform Process, Issues and RecommendationsReport

(2006)

Statutes

The Constitution of Kenya (2010), Nairobi: Government Printer.

Land Act, Kenya Gazette Supplement No. 36 (Acts No. 6) 2012

Land Registration Act, Kenya Gazette Supplement No. 36 (Acts No. 3)2012

Republic of Kenya, Sessional paper Number 3 of 2009 on National LandPolicy

(Government Printer, August, 2009)

Case Law

• Compar Investments Ltd v National Land Commission & 3 Others[2016]

eKLR

• Olojorai Company Limited v National Land Commission & another[2017]

eKLR

• James Ngochi Ngugi v National Land Commission & another [2017]eKLR

• Njoki Gicheru Ndiuni v Dadson Githenji Wahome & 3 others [2016]eKLR

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 TOPIC ACTIVITIES

Activity

Milimani Estate is a residential zone as set out by the County Government of Nakuru.
Calipso is a very influential man and owns large parcels of land withinMilimani. He wants
to set up a textile industry in one of his expansive plots inMilimani and has already fenced
off the area designated for the textile plant.Construction of the Plant is now underway.
Calipso argues that the Plant will create job opportunities for the unemployed youth within
Nakuru.
You are a Milimani resident and you feel aggrieved with this decision. What steps would
you take to stop the intended construction of the textile plant Usecase law and lessons learnt
from class to buttress your argument.

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 TOPIC SEVEN: ELEMENTS OF LAND USE

Introduction

Welcome to Topic Seven. This topic covers the mechanisms established to regulate the use
of resources. Planning is key in ensuring sustainable utilization of resources, including land.
Human activities are not supposed to leave land in a worse condition than it was. This is why
regulations are adoptedto govern human conduct as will be discussed below.

7.1 Elements of Land Use

Land use is the function or functions that humans apply to the land availableto them. Land
use also refers to how the land is managed, including how thenatural world is adapted to
human needs.

The concept of land use is closely intertwined with human community development.
Patterns of human development & land use have shaped the environment locally and
globally. The government regulates how land is used& for what purposes whether private,
public or community land. This the government does through requisite laws & policies

Therefore, Land use law regulate the various land resources in response to challenges of
sustainable development. These laws range in aspiration,ambition, and complexity because
of cultural, historical, political, and geographical differences.

7.2 Importance of Land use Law

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 Basically, land use law is important for society to appreciate the need for formal strategy
for proper land use to mitigate risks associated with misuse or inappropriate use of land.
Land use laws therefore can be seen as

mechanisms that address each society's emerging problems; they provide strategies that are
appropriate to the culture and place of their origin.

Land use is concerned with the planning & control of the use of land & naturalresources.
The planning facilitates harmonious distribution of activities/uses on land to avoid conflicts
that may arise from incompatible land uses.

Land use planning is also critical in the allocation of resources for future uses in a sustainable
manner. The laws are useful in putting in place agencies and strategies intended to address
problems. It also assigns roles to various levels of government and their agencies and
explain how the roles of the public and private sectors are coordinated. Some laws provide
economic incentives or establish market-based mechanisms that change behaviors and
improve land use practices. Other laws set land use standards & insist on compliance,
prescribing penaltiesand other disincentives to achieve their goals

Constitution of Kenya 2010- puts emphasis on equitable distribution ofresources, right to

clean environment, regulations & laws on land use,encourages & protects participation of
the minorities, marginalized groups & the old in all aspects of development. The 4th
Schedule of the Constitution of Kenya assigns various elements of development planning
to the national and county government.

Functions assigned to County government include county planning and development, land
survey and mapping.

Art 176 Constitution of Kenya, County government are responsible for county panning. Land
in Kenya is registered under three registration regimes- Land Act 2012,Land Registration Act,
Community Land Act 2016 & National Land CommissionAct 2012.

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 7.3 Legislation regulating land use in Kenya
i. Land Control Act
ii. Agricultural Act,
iii. Forest Act
iv. Wildlife Conservation and Management Act
v. Physical Planning Act
vi. EMCA
vii. Building Code
7.3.1 Land Control Act Cap 302

Regulates development, use and subdivision of agricultural land (Creates LandControl Board
to monitor this)

Ensures that agricultural land is used and developed in a manner that promotes good
husbandry

Board must be convinced that the user of the land or the prospective user is capable of
putting the land to productive agricultural use.

Board does this by asking the owner purposes for which the land is being purchased and
whether it is put to good use,

Board must safeguard subdivisions into sizes that hinder use of the land agricultural
purposes as well as proper environmental management. The Physical Planning Act No. 6
of 1996 provides for physical planning & development control. Also provides for planning
in both urban & rural areas.A specific response to address the deforestation in the 1990s
(Wangari Maathai Protests)

Director of Physical Planning is the Chief government advisor on all matters related to
physical planning. Responsible policy & physical plan development, advise alienation of
government lands & appropriate use of land. Under the Act Local authorities (now
replaced by County Government) must ensure the proper execution of physical
development control.

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 7.3.2 Agriculture Act Cap 318

Provides for rules for good agricultural practice, e.g rules for the use of agricultural land
for development &preservation.

Makes provision of administrative instruments to ensure a sound agriculturaldevelopment

& the marketing of agricultural products

7.3.3 Land Act 2012

The Land Act 2012- provides for management of public land and all that appertains to it
as well management of transactions of rights in private land

7.3.4 Environmental Management & Coordination Act (EMCA) 1999

It establishes legal& institutional framework for the management of the environment &
provides for coordination of the diverse sectoral activities to improve the national capacity
for the management the environment

Addresses issues of planning, protection and conservation of the environment.

Institutions created under the Act include NEMA & NET to deal with issues affecting the
environment.

EMCA requires that development plans embrace the preparation of Participatory National
Environment Plans that have sectorial coordination& linkages as well as environmental
conservation measures. It also requires that environmental impact assessment be carried
out for all development projects that are likely to pose negative environmental impacts.

For completed projects, the Act requires that yearly environmental audits be carried out
with clear mitigation measures.

7.3.5 National Land Policy 2009

Provides an overall framework & define measure to address issues of land admin., access
to land, land use planning, and unplanned proliferation of informal urban settlements,
outdated legal & institutional framework

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 The Policy requires the national, regional, urban, peri-urban, spontaneous settlements
planning principles & guidelines to developed & implemented in atransparent, sustainable,
comprehensive, participatory and accountable manner.

7.4 Development control, planning control, or development

management

This is the element of the of town planning through which government regulates land use
and new building

Every community in a country has different needs for development of their lands or usages.
If these needs are left uncontrolled, they are likely to causehardships to others.

The way a city or town develops has direct impact on community needs and therefore
control mechanisms of these developments must be put in place

What does development control mean?

Development control is the power of the State to regulate property rights in urban and
rural land, and is derived from the responsibility of the state to ensure that the use of land
promotes the public interest

Control of land use, one tool for ensuring these common needs are met and for achieving
sustainable cities & towns by controlling development to preserve natural resources,

Used to maintain order in settlements to ensure community services, facilities& are fairly
distributed &and to ensure compatible land use

Control in urban areas is done through town planning.

Planning is important in ensuring that structures put up the needs or aspirations of the
broader community in the town

The regulatory framework on control of land use &development helps to promote

compliance and certainty

In terms of protection of ecology various Acts like Forest Act, Wildlife Act, arecritical in
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 ensuring that there is no environmental damage

It also important in meeting the economic and social needs of the present & future
generations

7.4.1 Importance of control of Environment:

Control protects environmental values by:

i. restricting development to protect important areas of biodiversity;

ii. controls vegetation removal such as habitats for native wildlife;

iii. controls on how waste and effluent are dealt with or removed to protectwater
catchments,

Economic Value

In terms of economic value

i. Land controls ensure that protection of scarce natural, good quality

agricultural land from haphazard development,
ii. Ensures sufficient and appropriate land allocation for development

Social Value

Social values that are served include:

i. Protection of health of citizens,

ii. Putting restrictions on emerging development through specific planningschemes.
iii. Certain rules and regulations that Kenyan citizens must follow withrespect to
development projects.

It is trite law that all applications for planning permission must be done in accordance with
the policies of the development plan and no construction canstart without such permission.

S. 29 of Physical Planning Act empowers local authorities now (Countygovernment) to do

the following:

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 i. Prohibit or control the use & development of land & buildings in theinterests
of proper and orderly development in their area
ii. Control or prohibit the subdivision of land or existing plots into smallerareas;

iii. Consider & approve all development applications &grant permissions;

iv. Ensure the proper execution & implementation of approved physical development
plans;
v. Formulate by-laws to regulate zoning in of use & density of development;
vi. Reserve & maintain all the land planned for open spaces, parks, urban forests &
green belts in accordance with the approved physical development plan.

S. 30. deals with permission of development and restricts development toonly those
that are granted by the local authority (County government)

S.30 (2). creates offences for non-compliance and imposes a penalty for a
fine not exceeding Kshs. 100,000 or imprisonment not exceeding 5yrs or both.

See Part IV of the Act (S. 29- 41) generally that deals with control of development.

See also Second Schedule of the Act details of matters that can dealt with under Physical
Development Plan

7.5 URBAN DEVELOPMENT PLANNING IN KENYA

Urban development & planning laws & regulations are useful in providing orderly &
sustainable urban development.

Legislation & policies give power to the towns to plan not only to secure propersanitary
conditions but for amenity and convenience as well.

The planning laws allow regulation of use and appearance, as well as the creation of zones
separating types of buildings such as factories and houses,or requiring permission for certain
development.

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 The earliest planning policy efforts began with the establishment of coastal urban
settlements & construction of the Mombasa-Kisumu-Kampala Railway in the colonial times
(Hagman D. G, 1975)

In 1978 the Human settlement strategy adopted to provide for an overall framework for
the management of future urban growth (Nairobi Metropolitan Growth Strategy,
November 2005)

Other interventions- the development of water & sewerage master plans, the 1993
Convention of “The Nairobi We Want” the first ever bold step to involvethe residents in
visioning and participating in the planning for the future of Nairobi and the Omamo
Commission of 1994

The Omamo Commission recommended the sub-division of Nairobi into boroughs for
efficient management & service delivery among other recommendations

The fourth schedule of the Constitution of Kenya assigns various elements ofdevelopment
planning to the national and county government.

Functions assigned to County government include county planning and development, land
survey and mapping.

Art 176 Constitution of Kenya - County government are responsible for countyplanning.

The Urban Areas Act number 13 of 2011 establishes principles of governance and
management of urban areas and cities.

7.5.1 Physical Planning Act 1996 (Cap 286)

This Act empowers the local authorities (now County government) to prohibitor control
the use and development of land & buildings in the interests of proper & orderly
development of an area. It also empowers the County government to control or prohibit
the subdivisionof land or existing plots.

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 7.5.2 The Building Code (Adoptive by- laws) Building Order, 1968,

It grants the local authorities’ powers to approve or reject building plans.

S. 3 of the Code prescribes conditions which one must comply with when theywant to put
up a building, develop land or change the use of the building. Application shall be done
in prescribed form S. 4

It gives specifications for buildings sites, foundations, building materials to be used and
specifications on walls and foundations.

7.5.3 The Building Code

S. 31 of Schedule Part III prescribes penalties for non-compliance. Imposes afine for Kshs.
2000 for 1st offence, 2nd offence Kshs. 3000 or subsequent offence, or imprisonment for
a period not exceeding six months and nine months respectively or both fines and
imprisonment;

For continuing breach, penalty imposed is a fine not exceeding Kshs. 20 for each day but
the aggregate of fines imposed shall not exceed Kshs.2000.

Any expenses incurred by the council in consequence of the breach or in the execution of
any work directed under these By-laws are borne by the offender.

7.5.4 EMCA (No. 8 of 1999)

Established legal & institutional framework for the effective management of the
environment namely: National Environment Council (NEC) & National Environment
Management Authority (NEMA).

NEC has the responsibility of formulating policies, setting national goals, andpromoting
cooperation among stakeholders,

NEMA’s role is to supervise and coordinate all matters relating to the environment. It is
also the body charged with implementing the provisions ofthe Act.

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 7.5.5 The National Construction Authority Act (Cap 449A) Act no.41 of 2011.

It establishes the National Construction Authority; whose functions include overseeing the
construction industry and coordinating its development.

Performance of this body has been questionable considering the rapid collapseof building in
city and major urban areas mainly attributed to poor building standards and poor
enforcement of building laws.

This point to weak mechanisms by the body.

7.6 ILLEGAL DEVELOPMENT OF LAND

Despite legislations, development of land in urban areas has been haphazard& disjointed.
(Purcell M. & Street - 2009)

Illegal unapproved developments have continued to mushroom due to inadequate and

incompetent development control mechanisms, poor & outdated planning standards &
laws.

It is also attributed to a weak land administration system, poor enforcement of regulations,

a weak legal framework, poverty, population increase, greed and corruption.

Abuse of public offices & the failure of the professionals to uphold moral & ethical principles
in the execution of their duties and failure to implement plansfeed into the crisis.

In 2009 there were crises as government threatened to demolish structures that had either
been developed illegally or obstructed water courses.

Many land developers with good connections have put up illegal structures and sometimes
these people go to courts to legitimize illegalities

Seen when posh homes were demolished in Nairobi to give way for the construction of
bypass, others built on water catchment areas , demolition in2018 a long Mbagathi Way,
Kileleshwa, Ukay Building among others

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 When illegal development are undertaken, the owners of such buildings or structures have
very little recourse in law

In Cycad Properties Limited & anor V AG & 4 others [2013]: Justice Mumbi Ngugi stated
as follows:

“It is true that the petitioners have a right to own property, and they are entitled to
theirproperties to the extent that such properties have not encroached upon land that
was acquired and set aside for a public purpose. Their right to property must be
exercised within and in accordance with the framework of the law. Public lands
acquired through compulsory acquisition are amongst the overriding interests
stipulated under section 30 of the Registered Land Act which qualify the indefeasibility
of title acquired under the Actas provided in section 28(b) above. The petitioners’ titles,
to the extent that they compriseland which forms part of the Northern Bypass, are
defeasible to that extent.”

Court’s sympathy with the Petitioners didn’t stop the court from upholding thelaw. Court
ordered the surrender of land to the Respondent for purposes of road use. Petitioner had
encroached on the road reserve & ordered to surrender the 20metres out of their parcels
of land.

The court faulted the surveyors for not exercising due diligence in carrying outthe surveys of
the subject property. The titles to the parcels shall be rectifiedaccordingly.

Topic Summary

You now know that land use is the function or functions that humans apply to the
land available to them. It also refers to how the land is managed, including how the
natural world is adapted to human needs.
Therefore, Land use law regulate the various land resources in responseto challenges
of sustainable development. These laws range in aspiration, ambition, and
complexity because of cultural, historical, political, and geographical differences.
They include: Land Control Act Cap 302, Agriculture Act Cap 318, Land Act 2012,
Environmental Management & Coordination Act (EMCA) 1999, National Land
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 Policy 2009, Physical Planning Act 1996 (Cap 286),The Building Code, The National
Construction Authority Act (Cap 449A) Act no. 41 of 2011 among others.
You can now discuss the importance of land use laws which protects theallocation of
resources for future uses in a sustainable manner. The usefulness of these laws in
putting in place agencies and strategies intended to address problems. Most
importantly they assign roles to various levels of government and their agencies and
explain how the roles of the public and private sectors are coordinated.

Further Reading

Mandatory Reading

Burn E. H & Cartwright J (2011) Cheshire & Burns Modern Law of Property 18th
Edition Oxford Press.

B. Boshier& H. Teff (1980) Law and Society.

Integrated National Land use Guidelines For Sustained Societal Attributes –

Infrastructure, Environmental Resources And Public Safety National Environment
Management Authority, (2011)

Odhiambo, Walter Hezron Nyangito; ‘Land laws and land use in Kenya:
implications for agricultural development’ Kenya Institute for Public Policy Research
and Analysis (2002)

Odote, C. (2010) Retracing Our Ecological Footsteps: Customary Foundations For

Sustainable Development And Implications For Higher Education In Kenya

Singer J. W, berger B R, Davidson N. M Penalver (2014) Property Law:Rules, Policies

and Practices, Wolters Kluwer Law and Business 421-501

Statutes

The Constitution of Kenya (2010), Nairobi: Government Printer.

The Land Registration Act 2012, Act No 3 of 2012

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 The Land Act 2012 Act, Act No 6 0f 2012

Physical Planning Act (Cap. 286)

The National Land Commission Act 2012, Act No 5 0f 2012 73

Case Law

Cycad Properties Limited &Anor V AG & 4 others [2013] eKLR

TOPIC ACTIVITIES

Activity

In the past years, Kenya has witnessed a lot of buildings collapsing, land grabbing of road
reserves for private residential homes, encroachment of forest land among others in spite
of a plethora of legislation in respect hereto.

Assignment [this assignment requires submission]

a) Discuss the importance of regulation pertaining to land use in Kenya.

b) How effective are they in preserving the appropriate land use in Kenya.

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 TOPIC EIGHT: COMPULSORY ACQUISITION OF INTEREST IN LAND

Introduction

Source: Makao bora

Welcome to Topic Eight. This topic covers the powers of the State to acquire interests in
private land for public use, the relevant laws that regulate this process and the processes
involved.

Topic Content

8.1 Historical Perspective of Compulsory Acquisition of Interest inLand

Compulsory acquisition is the power of the State to extinguish or acquire anytitle or other
interest in land for a public purpose, subject to prompt paymentof compensation. The
exercise of the state power of compulsory acquisition &radical title have been subjected to
rationalized land use plans &agreed upon public needs established through democratic
processes. This power is knownby a variety of names depending on a country’s legal
traditions, including eminent domain, expropriation, takings and compulsory purchase.

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 The state has power to take over property which is otherwise privately ownedfor purposes
of meeting some public requirement in taking such land, public.

use is the guiding or the operative element of the exercise of these powers. Such power is
inherent in any government& on the strength of its exercise thestate can compel transfer of
property from private hands for purposes of re- allocating the same for government use
i.e. known as public purposes. Doctrine of eminent domain can be traced back to ancient
Rome where the practice of taking private property for public use was widespread.

It entailed seizing private property subject to payment of compensation. Seizure was

mainly for public use. English sovereigns picked up the practice from ancient Rome & are
known to have enjoyed similar powers initially without any mandatory requirements as
to its exercise. There were instanceswhere private property was taken but not necessarily
for public use but to serve the royal needs and no compensation was paid to owners.
However, with time, the British Parliament change the practice and recommended for
compensation in all cases involving appropriation of private land for public purpose.

8.2 Compulsory Acquisition of Interest in Land in Kenya

Source: The East African

Kenya borrowed this doctrine from Britain and traces its history from colonial legacy. The
government may in certain instances compulsorily acquire property of any description
subject to fulfillment of certain preconditions which may either be constitutionally set or
imposed by statutory law. Under the old land regime, the established procedures for
compulsory acquisition were either abused or not adhered to leading to irregular
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 acquisitions. There were overlaps of powers of the President and that of local authorities
to set apart Trust Land overlap.
The Constitution of Kenya 2010 and the establishment of the National Land Commission
tasked to manage and administer all land on behalf of the government and the people
have ushered changes. The impetus took root in 2009 when the National Policy was
developed and approved by Cabinet. One of the Policy recommendations was
establishment of institutions to rectify theoverlapping powers as well proper structures to
deal with compulsory acquisition of land

8.2.1 The Constitution of Kenya 2010

Article 40 of the Constitution of Kenya 2010 guarantees the right to own property and at
the same time protects property owners from being deprivedof that right. If the state must
appropriate private land, it must exercise thatpower in line with conditions set under Art.
40 (3).
Article 40 (3) sets conditions upon which a state can appropriate private property and they
include:
i. Acquisition of land or conversion of land or title to land in accordance with
Chapter 5 of the Constitution of Kenya 2010.
ii. Acquisition must be for public purpose or in the interest of the publicand carried
in accordance with the constitution & any Act of parliament.
iii. Where such land is appropriated, there must be prompt payment and just
compensation to the owner.
iv. The process must allow any owner to go to court if they aredissatisfied.

8.2.2 National Land Policy

Set policy objectives to harmonize the institutional framework for compulsoryacquisition
to avoid overlapping mandates
Also routed for establishing compulsory acquisition criteria, processes and procedures that
are efficient, transparent and accountable and; Institute legal& administrative mechanisms
for the exercise of the power of compulsory acquisition by the State through the National
Land Commission

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 8.2.3 The Land Act, No. 6 of 2012
Under the Land Act 2012, an elaborate procedure has been placed to deal withcompulsory
acquisition of land as was stipulated by National Land Policy.
Sec 107 -133 deals with substantive issues of compulsory acquisitions:107—Preliminary notice.
108—Power of entry to inspect land.
109—Payment for damage caused by entry for survey.
110—Notice of acquisition and effect of acquisition on plant andmachinery.
111—Compensation to be paid. 112—
Inquiry as to compensation.
113—Award of compensation114—Notice of award.115—
Payment of compensation.
116—Payment in error.
117— Grant of land in lieu of award.
118 —Survey where part of holding is acquired.119—
Payment of interest.
120—Additional compensation where area found to be greater121—Formal taking
of possession and vesting.
122—Surrender of documents of title to Commission. 123—
Acquisition of other land on account of severance.

124—Withdrawal of acquisition.
125—Power to obtain temporary occupation of land.126—
Restoration of land.
127—Reference of matters to the Court for determination by theCommission
128—Reference to the Environment and Land Court.129—Right
of entry.
130—Penalty for obstruction.
131—Service of notices.
132—Exemption from stamp duty.
133—Rules.

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 8.2.4 Land Registration Act, No. 3 of 2012
Under Section 28 (e) of the Act, compulsory acquisition is listed as an overriding interest
which means that it subsists even without being noted onthe Register.

8.3 The actual procedure for acquisition at a glance

I. Government expresses intentions to acquire the land.
II. The Cabinet Secretary (National Level) or County Executive CommitteeMember
(County Level) responsible for makes a request to National Land Commission (NLC)
in writing to acquire the land compulsorily on its behalf.
III. The NLC may accept or reject the request depending on the requirements to be met
that are set by NLC for same
IV. NLC publishes a notice in the Kenya Gazette to inform the public of theirintentions.

V. A copy is sent to everyone to be affected by the acquisition & informedof the venue
& date of the inquiry to be held.

VI. NLC determines the value of the land as per the Act.

VII. Commissioner declares an award of compensation in writing to people affected by

the acquisition.
VIII. This award is final unless challenged in court. If one is not satisfied withthe amount,
they should accept it but must indicate that they have accepted.

8.4 Justification
Justification for acquisition is that the states had original jurisdiction of property long
before the properties found themselves in individual hands so that individual possession
must be seen to derive from grants from the state.Even though the state issues grant to
individual owners, it still retains radical title and the leverage of control allows smooth
operation in regard to land use.It is thus given that the state might at some point resume
ownership of property and so it should be no surprise when the state unleashes its power
of eminent domain to take back the property.

8.5 Question: Why pay if the state retains the radical title?

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 The reasons include-

i. Moral obligation. It is only fitting that full indemnity be availed to the private
owner as they may be the subject of compulsory acquisition.
ii. Private incentive ground. Compensation must be made available so that private
investors would not be inhibited from being partners in development.
iii. Inhibition arise because of the fears that the government can any timeinterfere with
and take away the fruits of their private ventures withoutoffering any compensation
or following due process of the law.

iv. Compensation can deter or restrain an overzealous government from pursuing

ambitious public projects some of which may be white elephant projects simply
because it has the powers to seize private property andapply it to such use.

8.6 Safeguard against Arbitrary Powers of Eminent Domain

Taking of private property must be based on a public benefit test. The hardships that an
individual private owner goes through must be not compared to public good that arises
from compulsory acquisition.
The requirement that private property shall not be acquired without compensation is a
safeguard.

8.7 Summary of Conditions that Government must satisfy to exercise that Power
i. Land must be private property.
ii. Government must have the capacity to take physical possession of theproperty.
iii. The property must be for public purpose and used for the reason ear- marked. If
the acquisition is not for the public benefit, then it is an illegality.
iv. The private owner of the land must be paid fully compensated. The compensation
should be adequate and paid without delay.

8.8 Case law Illustrations

In Republic v National Land Commission Ex-parte Krystalline Salt Limited [2015] eKLR. J.
Korir held that Respondent (NLC) did not demonstrate the law it proceeded to order the

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 excision of a portion of the Applicant’s land and that action was done without jurisdiction.

The court also nullified the NLC decision to appropriate the applicants land asthe Applicant
was not heard before the decision was taken.

In Patrick Musimba v National Land Commission & 4 others [2016] eKLR the court declined
to issue orders declaring the actions of NLC unconstitutional as all due processes had been
followed by NLC in acquiring and compensating the petitioner as well as undertaking
impact assessment of the SGR project. So where the NLC is compliant with the law it
becomes difficult to undo its actions.

In Five Star Agencies Limited v National Land Commission [2014] eKLR, the petitioner's
land had been undervalued by the respondent and lesscompensation given which did not
meet the market value. The Court set aside the earlier payment and enhanced the
compensation to reflect the true marketvalue of the land and ordered the respondent to
pay.

8.9 Examples of projects where government exercised powers ofeminent domain

Nairobi-Thika Super Highway

The Nairobi-Thika superhighway was originally a 45 km dual carriagewaystretching
from Nairobi and extending to Moyale- Ethiopian border. More land needed to
decongest traffic. The surrounding lands were privatelyowned and so government
had to compulsorily acquire the land and compensate owners
Konza Techno - City
Konza Technology City was commissioned by the Government in 2008 as a flagship
project of Vision 2030 to capture the growing global business processing
outsourcing and Information Technology enabled services sectors in Kenya. 5,000
acres of land was acquired from privateowners.

LAPSSET
Corridor which provides transport & logistics infrastructure aimed at creating
seamless connectivity between the Eastern African Countries ofKenya, Ethiopia and
South Sudan.
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 Electricity Transmission Infrastructure (KETRACO)
Kenya Electricity Transmission Company Limited (KETRACO) establishedin 2008 to
provide infrastructural backbone for a national transmission grid. The COY had to
acquire land and easements for way leaves corridors which resulted in displacement
of people, loss of shelter, assets, income sources, means of livelihood & involuntary
relocation & resettlement.
Further Reading

Mandatory Reading

• Grant S. Nelson et al, Contemporary Property (American Casebook Series, 1996)

• J. Oakley, Megarry’s Manual of the Law of Real Property (Sweet & Maxwell, 2002).

• John Stevens & Robert A. Pearce, Land Law (Second Edition Sweet & Maxwell,
2002).

• Jon W. Bruce & James W. Ely, Cases and Materials on Modern Property Law
(American Casebook Series, 1999)

• KarutiKanyinga, “ Politics and Struggles for Access to Land: ‘Grants From Above’
and Squatters in Coastal Kenya”, Research Report, 1998

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 • KarutiKanyinga, “The Legacy of the White Highlands: Land Rights’ Ethnicity and the
post-2007 election Violence in Kenya”27(3) Journal of Contemporary African
Studies, 325-344(2009)

• Kevin Gray, Elements of Land Law (Second Edition, Butterworths,London, 1993)

• Tom, Ojienda, (2015), Land Law and Conveyancing: Principles and Practice.
LawAfrica.

• Integrated National Land use Guidelines For Sustained Societal Attributes –

Infrastructure

• National Land Policy Reform Process, Concept Paper (2004)

• National Land Policy Reform Process, Issues and Recommendations Report (2006)

Statutes

• The Constitution of Kenya (2010), Nairobi: Government Printer.

• The Land Registration Act 2012, Act No 3 of 2012

• The Land Act 2012 Act, Act No 6 0f 2012

• The National Land Commission Act 2012, Act No 5 0f 2012

• Republic of Kenya, Sessional paper Number 3 of 2009 on National Land Policy

(Government Printer, August, 2009)

• Evictions and Resettlement Procedures Bill, 2013

Other Case Law for Reference

• Patrick Musimba v National Land Commission & 4 others [2016] eKLR

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 • Abdulla Akiio& 2 others v Kenya Urban Roads Authority [2016] eKLR

• African Gas and Oil Company Limited v Attorney General & 3 others[2016]
eKLR

• Ahmed Ibrahim Suleiman and another v Noor KhamisiSurur [2013] eKLR

• Okiya OmtatahOkoiti v Ministry of Land, Housing and Urban

Development & 2 others [2017] eKLR

TOPIC ACTIVITIES

Activity

Look into the Standard Railway Gauge saga, identifying the compulsory acquisition issues
that arose.
With reference to the activity above, explain how best the Government should have
amicably acquired the private properties involved, citing relevant procedures provided for
under the Laws of Kenya.

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 TOPIC NINE: FUNCTIONS OF LAND OFFICES

Introduction

Welcome to topic nine. This topic covers the various functions of the lands office. These
include land planning and coordination of planning by counties ascertainment of land
rights and interests, land consolidation and adjudication, land surveying and mapping,
administration and management of private land, control and regulation of land use and
property in respect of all categories of land and maintenance of land records, valuation of
land andassets for stamp duty and government leasing and registration of land transactions
and other legal documents and determination of land and boundary disputes in
collaboration with Surveys Department.

Topic Content

9.1 Land Offices

The Constitution has created two levels of government; the national & countygovernment.
The 4thSchedule of the Constitution details how various functions are to be distributed
between the national and county governments. Functionsof the land offices is one sector
whose services have been devolved.

In the land sector, county governments took over the function of county planning &
development, including survey, mapping, boundaries and fencingwhile the National Land
Commission’s (NLC) took over managing and administering public land on behalf of the
national and county governments.

The Constitution of Kenya 2010 brought radical changes to the sector and itsinstitutions.
For instance, the institutional framework of land administration and management has
undergone certain changes. In the previous regime Ministry of Lands administered land,
but we know the Ministry and NLC workin tandem with county land management boards
at the devolved level.

At the devolved level there is the County Land Management Board, a city or municipality

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 board which all deal with specific issues mandated by law. The Lands ministry deals with
all matters regarding land searches, registration, adjudication and settlement, and planning.
County lands boards act as agentsof NLC, manage public land and may process leases for
renewal.
They also report directly to NLC.
Land Control Act (Cap 302), s. 5 establishes the Land Control board now seenas the County
Land Board. S. 6 provides for the mandate of County Land Board which include rights to
give approvals to various land transactions including sale, leasing, mortgaging, the division
of any such agricultural landinto two or more parcels to be held under separate titles,

9.2 Land & Environment Court

The Land & Environment Court was established by the Environment and LandAct, Cap 12A
of 2012. S. 13 (1) of the Act, confers both original and appellatejurisdiction to hear and
determine all disputes relating to environment and land. This is one of the specialized
courts established under Art. 162 (2) (b) of Constitution of Kenya and is charged with
resolving disputes related to landenvironmental issues.
The Court determines all disputes in accordance with the Constitution and within the
provisions of the Act and all other laws applicable in Kenya relatingto environment and
land.
The court has powers to deal with disputes relating to land administration & management.
It deals with cases relating to public, private and community land & contracts, choses in
action or other instruments granting any enforceable interests in land.
Court can exercise judicial review over decisions made by NLC if they are notdone in
accordance with the Constitution or any law.
See Republic v NLC & 2 others Ex-parte Airways Holdings Limited [2015] eKLR where J.
GV Odunga stated thus:
“It is therefore my view that Constitutional Commissions and bodies ought to be given
space to carry out their constitutional and statutory mandate and the Court ought only
tostep in to ensure that their mandate is carried out in accordance with the law and
that the due process is followed in the process.”

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 In Republic v National Land Commission Ex-parte Holborn Properties Limited [2016] eKLR
The Court found and held that the Respondent does not have the Jurisdiction to review
grants or dispositions of public land wherethe court has already dealt and announced itself
on the issue of propriety of grant or disposition in question.
See also R V National Land Commission & 4 Others ex parte Fulson Company Limited and
another (2015) eKLR
The Court held that NLC has neither the legal authority to review and much less to revoke
titles relating to private land. On this ground alone, the ex parteapplicant succeeds in its
application for issue of an order of certiorari to quashthe Commission's purported review
and revocation of the ex-part Applicant title.”

9.3 Functions and Powers of National Land Commission

9.3.1 Background to NLC

National Land Policy (NLP) 2009 Clause 41 routed for the establishment of a NLC whose
mandate was to carry out efficient, equitable & sustainable land administration &
management of land.
Clause 61 (e) of NLP, proposed the establishment of procedures for the repossession of
public land acquired illegally or irregularly & this where NLC derive some of its mandate.
NLP came into force before the Constitution of Kenya, 2010 and some of its principles has
been entrenched in the Constitution in the environment and land chapter
Article 60 (1) of Constitution of Kenya exemplifies the principles of Land Policy:land to be
held used and managed in equitable, efficient, productive and sustainable manner
Art 67 (1) establishes NLC and Art 67 (2) spells out the functions of this body.
The NLC was established as one of the independent Constitutional bodies to deal with the
long-standing problems and conflicts associated with land fromthe past land regimes.
NLC was set up to provide an oversight and watchdog role as well as checks and balances
in the management of public sector land.
It is thus an autonomous body and enjoy special status just like other independent
Commissions.

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 9.3.2 Functions & Powers of NLC Art 67 (2) Constitution of Kenya
i. To manage public land on behalf of the national and county governments;
ii. To recommend a national land policy to the national government;
iii. To advise the national government on a comprehensive programme for the
registration of title in land throughout Kenya;
iv. To conduct research related to land and the use of natural resources, and make
recommendations to appropriate authorities;
v. To initiate investigations, on its own initiative. or on a complaint, into present or
historical land injustices, and recommend appropriate redress;
vi. To encourage the application of traditional dispute resolution mechanisms in land
conflicts;
vii. To assess tax on land and premiums on immovable property in any areadesignated
by law; and
viii. To monitor and have oversight responsibilities over land use planning throughout
the country.
9.3.3 Functions & Powers of NLC, NLC Act 2012 (S. 50)
a. On behalf of, and with the consent of the national and county government, alienate
public land;

b. Monitor the registration of all rights and interests in land;

c. Ensure that public land and land under the management of designated state agencies
are sustainably managed for their intended purpose andfor future generations;
d. Develop and maintain an effective land information management system at
national and county levels;
e. Manage and administer all unregistered trust land and unregistered community land
on behalf of the county government; and
f. Develop and encourage alternative dispute resolution mechanisms in land dispute
handling and management.
9.3.4 Under the Land Act 2012 NLC shall perform the following:
1. S 134 -Implement Settlement programmes on behalf of national and County
government
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 2. S. 135 -Administer the Land Settlement Fund in accordance with Act
3. Manage the Land Compensation Fund
4. Identify ecologically sensitive areas that are within public land and demarcate and
take any other justified action on those areas and act to prevent environmental
degradation and climate change in accordance with the Land Act.
5. Reserve public land for the establishment of approved settlementprogrammes, and
where public land is not available, purchase private land subject to the Public
6. Ensure that the investments, in land benefit local communities and theireconomies.
7. Make regulations prescribing the criteria for allocation of public land, such
regulations to prescribe forms of ownership and access to land under all tenure
systems.
8. The procedure and manner of setting aside land for investment should respect
mechanisms of benefit sharing with local communities.

9. Undertake an inventory of all land based natural resources upon cominginto force
of the Land Act as stipulated in section 15(3) of the LA.
9.4.4 NLC – The Land Registration Act, 2012
a. Constitute registration units in consultation with national and county
governments
b. Determine the form of a land register that shall be maintained, in eachregistration
unit,
c. Appoint a date for geo –referencing plans to be kept in a land registry;
d. Depository of maps –the office or authority responsible for the survey of land shall
submit to the Commission a copy of the cadastral maps fordepositing
e. Prescribe (through regulations) guidelines that the registrar shall follow before
question has been obtained by fraud.
f. Advice the cabinet secretary in making regulations, rules or prescribingany matters
required under this Act and such regulations or rules shall be tabled before
Parliament.

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 Powers of the National Land Commission
Shall have powers to—

a. Gather, by such means as it considers appropriate, any relevant information

including requisition of reports, records, documents or anyinformation from any
source, including any State organ , and to compelthe production of such information
where it considers necessary;
b. Take any measures it considers necessary to ensure compliance with the principles
of land policy set out in Article 60 (1) of the Constitution.

All these functions must be exercised within the precincts of the Constitutionand all
relevant laws.

Where the Commission oversteps its mandates the Environment and Land Court or any
other Court appropriately constituted has powers to hear and determine such cases.
Being an independent commission does not mean that Commission does whatit thinks fit
but must act within the purview of the law.
The independent commissions serve as watchdog of the people and inundertaking that
role should act without fear or favour as their mandate is sanctioned by the law.
In Re The Matter of the Interim Independent Electoral Commission, [2011] eKLR Supreme
Court summed up the work of independent commissions as follows:
“…The several independent Commissions and offices are intended to serve as
‘people’swatchdogs’ and, to perform this role effectively, they must operate
without improperinfluences, fear or favour: this, indeed, is the purpose of the
‘independence clause’. “…These Commissions or independent offices must, however,
operate within the terms ofthe Constitution and the law: the ‘independence clause’
does not accord them carteblanche to act or conduct themselves on whim; their
independence is, by design,configured to the execution of their mandate, and
performance of their functions asprescribed in the Constitution and the law.”
In the matter of National Land Commission [2014] eKLR (NLC Advisory Opinion Ref No.
2 of 2014
This reference was about NLC functions and powers vis a- vis the functions and powers of

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 the Ministry of Land, Housing and Urban Development,
The two institutions had conflicting roles in terms of interpretation of their functions that
brought feuds btw them.
Supreme Court did not give with finality the role of each institution but insteadreferred the
parties to engage in a constructive dialogue towards reconciliationand harmonious division
of responsibility.
Topic summary
You now know that the functions of land offices revolve around land planning and
coordination, ascertainment of land rights and interests, land consolidation and
adjudication, land surveying and mapping, administration and management of
private land, control and regulationof land use.
You have learnt that the National Land Commission is mandated to carryout efficient,
equitable & sustainable land administration & managementof land. However it can
only carry out these functions with the provisionsand spirit of the Constitution of
Kenya, 2010.

Further Reading

Mandatory Reading

Grant S. Nelson et al, Contemporary Property (American Casebook Series, 1996)

B. Boshier& H. Teff (1980) Law and Society.

Camilla, Toulmin, “Securing Land and Property Rights in Africa: The Roleof Local
Institutions

Collins Odote,” Kenya: The New Environment and Land Court,” Published in Issue
2013(1) IUCN Academy of Environmental Law, E- Journal Issue 2013(1). Available
at http://www.iucnael.org/en/e- journal/current-issue-.html

Land Development and Governance Institute (2014) Land Reforms Implementation:

An Analysis of Citizens’ Perception of the Relations between the National Land
Commission and the Ministry of Lands 14th Scorecard Report
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 Tom, Ojienda., (2015), Land Law and Conveyancing: Principles andPractice.
LawAfrica.

Statutes

The Constitution of Kenya (2010), Nairobi: Government Printer.

The Land Registration Act 2012, Act No 3 of 2012

The Land Act 2012 Act, Act No 6 0f 2012

The National Land Commission Act 2012, Act No 5 0f 2012

Case Law

In the matter of National Land Commission [2014] eKLR

Republic v National Land Commission & another Ex Parte Muktar SamanOlow

[2015] eKLR

Anthony Otiende Otiende v Public Service Commission & 2 others [2016]eKLR

Republic v National Land Commission & 2 others Ex-parte AirwaysHoldings

Limited [2015] eKLR

Republic v National Land Commission Ex-parteHolborn PropertiesLimited

[2016] eKLR

R VS National Land Commission & 4 Others ex parteFulson CompanyLimited &

another (2015) EKLR

Ledidi Ole Tauta& Others v Attorney General & 2 others [2015] eKLR

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 TOPIC ACTIVITIES

Activity

Read the case In the matter of National Land Commission [2014] eKLR (NLCAdvisory
Opinion Ref No. 2 of 2014.

National Land Commission is a creature of the Constitution and enjoys specialpowers as an

independent institution not capable of taking instructions from any other authority. Discuss
the accuracy of this statement.

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 TOPIC TEN: EMERGING FORMS OF PROPRIETORY RIGHTS

Introduction

Welcome to topic ten. Proprietary rights, also known as property rights, they are the
theoretical or legal rights that an entity has to own property, whethertangible or intangible.
Over the years, property has emerged in different formsthat continue to change from time
to time. These changes have beenprompted by technology, economic systems, social and
political patterns. Thissection highlights a few of the emerging forms such as body parts,
plant breeding, trademarks, sound, signs, traditional knowledge and how technological
advancement has impacted on proprietary rights.

Topic Content

10.1 Breaches in Proprietary Rights

NB: For breaches pertaining to tangible rights such as land, please refer to earlier
discussions on the same that is sale agreements, leases, charges
/Mortgages etc.

10.2 Intellectual Property

10.2.1 Various forms of property

(Remigius N. Nwabueze 2016)- Posits that property is expansive, malleable & flexible
concept. It is dynamic and has considerable uses and values (Property Rights in Dead
Bodies, Body Parts, and GeneticInformation) Nwabueze argues that property comes in
different forms that continue to change overtime. For example, changes in technology,
economic systems, social and political patterns cause changes in forms of property or
concepts of property.

Property is perceived in different forms. Jeremy Bentham (1978) talked of property as

nothing but a basis of expectations.

Demsetez (1978) property -instrument of society& derives significance by virtue of helping

one form expectations which he can reasonably hold in his dealings with others

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 He posits that the expectations find expressions in the law, customs & moresof society. For
example, an owner of property rights possesses the consent offellowmen to act in particular
ways. Similarly, he expects the community to prevent others from interfering with his
actions which are not prohibited in thespecifications of his rights.

Lay persons see property as things while it is regarded in law as rights to things or bundle
of rights which creates legal relations (Okoth Ogendo 1991)

Nwabueze’s concept of property has evolved to a point it is no longer defined,in reference

to things but also seen as enabling valuable interests to be protected by treating them as
property rights.

He posits that analytical function of property has helped in designing protection for rights
relating to human body parts and traditional knowledge

New forms of property have emerged in the wake up of Biotechnology.

Biotechnology forms of property have challenged traditional property law regimes. E.g.
issues to do with human body parts, biological specimens & traditional knowledge

Emergence of plant-based medicines and commodification of traditional knowledge have

brought issues of protection of traditional knowledge.

Emergence of technology has also brought changes on issues of spectrum including its
management (space use for commercial purposes).

Nwabueze’s assertion of the expansiveness of property holds water as

illustrated in the following instances:

Supreme Court in USA has held that inside information about take overs is property-
societies and exchange commission(SEC) rules against insidertrading is construed to protect
property rights in information.

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 In Forsham vs. Harris (1980) 445- US 169- the court held that medical researchers may
decide whether and to whom to release their raw data

Consumer product Safety Commission vs. GTE Sylvania Inc 1980 447 US 102- Court held
TV manufacturers have property rights in information about their products including
limited right to confidentiality with respects to accidents.

Spectrum electromagnetic: control of spaces for radio transmitters, frequencies, TV,

wireless phones and mobiles (for further details read: Spectrum Management and
Regulation in Kenya: Engendering Inclusive Access to technology and information by
Patricia Kameri-Mbote etal availableonline at http://www.ielrc.org/content/a1604.pdf)

World Trade Org. Agreement on Trade Related Aspects of Intellectual Property Rights
(TRIPS) protect innovations. Investments in intellectual goods suffer from problems of
appropriation and the producer has limited control of what consumers can do with it (copy
rights, patents, industrial designs, trademarks,trade secrets etc.) See Pastificio Lucio Garofalo
S.P.A v Debenham & Fear Ltd [2013] eKLR on trademarks infringement.

Technology advancement has brought challenges to IPRS. For example, internet has also
made it difficult in enforcing intellectual property rights including accessing information
generated therefrom. Internet has made it easy for people to copy and reproduce materials
without permission. The original producers such materials have no control over what is
accessed. Theaccess is done at the comfort zone of the reproducer, all that is needed is a
garget and access to internet. In Kenya, people download music from internet,copy other
works such as designs, articles freely without regard to the owners of the IPs. This has
impacted on the producers’ livelihood in terms of revenuecollection, with the attitude
‘Why pay more if I can get it for free.’

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 Social media is another site for challenges. It brings into question issues of who is to ideally
be sued when a company who claims a copyright to websitesprovides the outlet for social
media or spectrum are used for defamatory slursonce such information has been taken
down from the website. For example, Google Incorporation. See the illustration in the case
of, Anne Waiguru v Google Inc. & 2 others [2014] eKLR.

Article 40(5) of Constitution of Kenya clearly stipulates that the state shall support,
promote and protect the intellectual property rights of the people ofKenya. The wording
is couched in a mandatory manner and this entail support in terms of providing an
environment conducive for creation of such efforts including protection through redress
when the rights are violated. An elaborate framework for protection of IPS is under The
Industrial Property ActNo. 3 of 2001 and Copy Rights Act of 2001.

10.2.2 Plant Breeders Rights

Plant breeders’ rights are granted to breeders of new, distinct, uniform and
stable plant varieties for example Katumani maize.

The Seeds and Plant Varieties Act regulates the testing and certification of plant varieties
and granting property rights to individuals undertaking such activities.

One will be granted rights where the plant variety is: morphologically,physiologically or
otherwise sufficiently distinguishable by one or more characteristics from commonly known
varieties; uniform or homogenous in itsreproduction features; and stable in its essential
traits.

The rights are granted for twenty-five years in the case of trees and vines andtwenty years
for other seeds and plant varieties.

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 10.2.3 Traditional Knowledge

WIPO defines Traditional Knowledge as “a living body of knowledge that is developed,

sustained and passed on from generation to generation within a community, often forming
part of its cultural or spiritual identity.”

The knowledge can relate to traditional medicines, hunting or fishing or farming techniques
or animal migration patterns or water management.

Other forms of Traditional Knowledge (cultural property) are folklore, native religion,
songs, rituals ceremonies, dance, traditional knowledge, art, customs, and spiritual beliefs.
Although it is a form of IPRs, it is not adequatelyprotected in law as it does not seat well
with the classical conception of Intellectual Protection Rights.

The existing Intellectual Property Rights structures have a tendency ofconceiving property
only in its narrowest approach. Property is associated with terms like title, exclusion,
alienation, commoditization and commensurability.

Such a conceptualization of property disregards relational, group custody andownership

and control by indigenous communities. Consequently, TraditionalKnowledge is not likely
to pass the requirements set for patentability. For example, Traditional Knowledge may
not meet the test of novelty, as it is a

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 trans-generational asset passed down through the life of indigenous communities.

Traditional Knowledge is not new and thus difficult identifying who theparticular creator
is. An inadequate policy, legal and institutional framework in protecting Traditional
Knowledge has contributed to its loss, destruction and expropriation by local and
international persons, as shown by increasing cases of bio piracy and misappropriation.
There is thus a move towards protecting TK using a sui generis framework.

10.2.4 Breaches of Intellectual Property Rights

Some of the breaches of IP rights include:

• Imprisonment and/or monetary fines.

Topic Summary

You have learnt that property is an expansive, malleable & flexible concept. It is
dynamic and has considerable uses and values with emerging forms cropping up
every other day. These include Plant Breeders rights, Traditional knowledge ,
spectrum and biological specimen
You now know about the challenges brought about by technological advancement
in enforcing intellectual property rights and accessing information generated
therefrom

Further Reading

Mandatory Reading

Moni Wekesa& Ben Sihanya: Intellectual property Rights in

Kenyahttps://www.kas.de/c/document_library/get_file?uuid=5e53219 1-8a73-
ded8-1922-2fcd04d8f66e&groupId=252038

Patricia Kameri-Mbote; Faith Mony Odhiambo;MuriukiMuriungi and Olive

Nyawira(2016)Spectrum Management and Regulation in Kenya: Engendering
Inclusive Access to technology and
informationhttp://www.ielrc.org/content/a1604.pdf

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 Impact of Technology on Enforcement of Intellectual Property Rightsavailable
at https://www.princeton.edu/~ota/disk2/1986/8610/861007.PDF
Remigius Nwabueze 2016 Biotechnology and the Challenge of property:property
Rights in Dead Bodies, Body Parts and Genetic Information Routledge, London.
WIPO Intellectual Property Handbook: Policy, Law and Use.
Donelly, Jack 'In search of the unicorn: The jurisprudence and politics of the right
to development' 15 Cal. W. Int'l L.J. 473 1985.
Marks, Stephen 'The Human right to Development: Between Rhetoric and Reality'
17 Harv. Hum. Rts. J. 137 2004 at 139.
Mostert, H and Pienaar J "Formalization of South African communal landtitle and its
impact on development" in Cook E (ed) Modern studies in property law III (Oxford
University Press Oxford 2005) 317-340.
Pienaar, G 'The registration of fragmented Use-Rights as a Developmental Tool in
Rural Areas.' Constitution and Law IV: Developments in the Contemporary
Constitutional State Conference papers presented 2-3 November 2000 Faculty of
Law Potchefstroom University for Christian Higher Education.
Wily, Liz Alden 'Land Rights Reform and Governance in Africa: How to make it
work in the21st Century?' UNDP Discussion Paper March 2006.

Statutes

The Constitution of Kenya (2010), Nairobi: Government Printer.

The Industrial Property Act, No.3 of 2001(Rev.2012)
The Copy Rights Act of 2001
Trademarks Act, Cap 506

Case Law

Communications Commission of Kenya & 5 others v Royal MediaServices Limited

& 5 others [2014] eKLR
Pastificio Lucio Garofalo S.P.A v Debenham & Fear Ltd [2013] eKLR
Cascade Company Limited v Kenya Association of Music Production(KAMP)

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 & 3 others [2015] eKLR
Anne Waiguru v Google Inc. & 2 others [2014] eKLR.

TOPIC ACTIVITIES

Activity

Carry out further research on the emerging forms of proprietary rights

From the activity above:

i. Highlight the challenges that technology brings to the protection of theemerging

forms of property
ii. Discuss the interventions to address these challenges.

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