KABARAK UNIVERSITY

SCHOOL OF LAW

KLAW 311: PROPERTY LAW I

GROUP ASSIGNMENT: PERMANENT FIXTURES &

LIMITATIONS OF THE AD COELUM DOCTRINE
LEWIS NGATA LAW/MG/2990/09/19
LAW/M/3077/09/19
BRIAN TAITA
ALEXANDER MUTUA LAW/MG/1508/09/19
LAW/M/2445/09/19
DAVID TIEMA
ESTHER NYABUTO LAW/MG/1116/09/19
LAW/MG/1718/09/19

LEWIS MORARA
LAW/MG/1723/09/19

DANIEL MUTUA
LAW/MG/2039/09/19

MORARA ELSIE
LAW/MG/2431/09/19
NAOMI KIPRUTO
LAW/MG/1035/09/19

KAREN MAINA
LAW/M/0536/05/19

ANNE KARIUKI
Group II LL.B

COURSE INSTRUCTOR: OMOLO J.A

2021
QUICQUID PLANTATUR SOLO, SOLO CEDIT IN RELATION TO SALE OF LAND
When defining land under common law, One of the principles considered is quicquid plantatur solo,
solo cedit – whatever is affixed to the ground becomes part of it. This is especially important when
transferring titles.
The general rule is that when a purchaser purchases a property, he or she is entitled to receive the land
together with the permanent physical improvements thereon along with all items which are
permanently attached to the land and/or buildings.1
The Law Society of Kenya, Conditions of Sale and Agreement for Sale Layout provides that in a sale
agreement, the purchaser is deemed to have inspected the property prior to signing the Agreement and
upon signing of the Agreement accepts the property as it is, subject to condition 4.3.2.2 The clause,
4.3.2 on the other hand provides that parties may agree to have a checklist of such fixtures and chattels
forming part of the Agreement, which checklist should be signed by the parties and be attached to the
Agreement.3
Occasionally, fixtures and fittings will form part of the particulars of sale. Buyers have a duty to
inspect to check land being brought to check fixtures contracted to be sold are in the subject property
just prior the exchange before and after a sale agreement.4 A seller on the other hand has to provide a
list of fixtures fittings and in other jurisdictions, fill information on the fixtures in a Fittings and
Contents Form.5
For purposes of certainty sale agreement or a contract of sale of land, can be made to expressly deal
with, 6
a) Fixtures that the seller intends to remove on or before completion of the contract.
b) Fittings that may remain at the property.
c) The price if applicable that the buyer needs to pay for the fittings
In the case of Taylor v Hamer7, the court decided that a seller is not allowed to remove fixtures without
informing the buyer if there is a possibility that the buyer expects the fixtures to be included in the sale.
The seller’s husband in this case removed a large area of flagstones after the buyer’s first inspection but

1 > https://stbb.co.za/thought-of-the-week-dealing-with-fixtures-fittings-in-a-property-sale-agreement <

2 Conditions of Sale, The Law Society of Kenya 2015
3 ibid
4 > http://africalawcentre.blogspot.com/2018/02/notes-on-conveyancing-law-part-1.html <
5 > http://www.conveyancingpro.co.uk/fixtures-and-fittings/ <
6 > https://phewconveyancing.co.uk/articles/fixtures-and-fittings-in-conveyancing-process <
7 (2002) EWCA Civ 1130.

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before exchange. On the second inspection, (done by a solicitor and not the buyer himself) there was an
inquiry on the flagstones. The seller lied by saying that they had not been extracted from the property
in question. The buyer filed a suit later to claim the flagstones. The court held that the buyer had a
legitimate contractual claim. The reference to the property being sold was to be interpreted to refer to
the property with fixtures which the buyer saw on inspection.
It is trite law that whatever is permanently attached to the soil becomes part of the soil and runs with
land, it matters not who affixed the object.
In the case of Wake v Hall, however, the doctrine could not apply because the buildings in question
although attached to the soil were held to be accessory to mining and were irrevocably annexed to the
soil, the main determining factor is whether the fixture is a trade fixture or an improvement of
inheritance, trade fixtures such as buildings accessory to mining are not considered as permanent
fixtures.
In Justine Okengo v Natalia Abia &3 others , an appeal case from the magistrates court, the court had
ruled that 'the plaintiff bought the stores and not the land which it is built on"
This appeal was upheld on applying the correct position of the law and re-evaluating evidence that the
appellant bought the land and the stores as permanent fixtures on that land were part and parcel of the
land which was the suit land.

In the case of John Michuki versus Kenya Shell Limited 8whereby John was the landlord of a parcel of
land whose title he had on leasehold for a period of 99 years. He later leased it to Kenya Shell Limited
for a term of 10 years at annual rent of Ksh 60,000.The said sublease expired by effluxion of time on
31st July, 1997.

The respondent had, with the consent of the applicant, sublet the suit premises to Kangema Petrol
station Limited, a limited liability company in which the applicant is a director.The issue that brought
dispute between the two parties was whether the tanks that the respondent had installed while using the
parcel of land belonged to them or the appellant as the wished to remove the tanks and have them in
their possession.

The appellant further sought an order restraining the defendant and it's servants or agents from
demolishing any buildings and improvements being contained in the premises pending hearing and
determination of the suit which the judge granted as its removal would lead to the damage of the whole
premises and none of the parties would benefit in that case.

CONDITIONS FOR OBJECT TO BECOME A PERMANENT FIXTURES

Quicquid plantatur solo cedit. The concept of land transfer is well conceived with this maxim which
denotes that whatever is attached to the soil becomes part of it.
Fixture has traditionally been used to denote anything that has become so attached to land as to form in
law part of land. If a personal property has been attached to the land or building and enhances only the
chattel’s utility, its not a fixture.

8 Civil Appeal no.233 of '98 eKLR

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Group II LL.B
For example, if bricks are purposely stacked to form a wall, a fixture results, but if the bricks are
merely stacked for convenience until used for some purpose, they do not form a fixture.

OBJECTS TO BE CONSIDERED AS PERMANENT FIXTURES.

1. The Elements Considered
i. Degree of annexation
ii. Object / Purpose of annexation
2. The right of removal:
Degree of Annexation
It can be determined if it can be shown that there was some physical connection with the land or with a
building on it
Berkley v Poulet (1976)
Scarman L. J held that a degree of annexation which in earlier times the law would have been treated as
conducive may now prove nothing.
If the purpose of the annexation is to be of the enjoyment of the object itself, it may remain a chattel,
notwithstanding a high degree of annexation. Nevertheless, an object resting on its own weight but it’s
so heavy that there is no need to tie it to a foundation, can become a fixture if the purpose of affixing it
was creating a beautiful room as a whole.
Elitestone v Morris [1997] 1 WLR 687 House of Lords
Elitestone purchased the freehold to the land on 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.
The main issue in conflict was to determine whether Morris’ bungalow formed part of the realty.
It was held that the bungalow formed part of the realty. The court reasoned that a building which
cannot be removed from land without destroying it will be regarded as part and parcel of the land.
Although now less decisive, the degree of annexation remains important as showing where the owners
of proof lie: if the article is securely fixed, the burden lies on those who content that is not a fixture.
Purpose of annexation.
It is regarded that the degree of annexation as being chiefly of importance as the purpose of annexation.
The more securely an object is affixed and the more damage that would be caused by his removal, the
more likely it is that the object was intended to form a permanent part of the land.
Hellawell v Eastwood (1851) 155 ER 554
The issue was whether the machines are fixed to factory floor was fixtures or chattels. It was held that
one should first consider the degree to which an item is annexed to a land and whether it can be
removed without damage to it or the land.
Then the purpose of the annexation ought to be addressed; if it is placed for the better benefit of the
object it is a chattel, if it is for the better benefit of the land, it is a fixture. The cotton spinning
machines were held to be chattels as they were affixed on the land for the benefit or stability of the
machines and not for the benefit of the property.
Re Whaley (1908) ICH 615 at pg. 619: Today so great are technical skills of affixing and removing
objects to lands or buildings that the second test is more likely than the first to be decisive. Perhaps the
enduring significance of the first test is a reminder that there must be some degree of annexation before
a chattel can be treated as a realty.
Adaptation.
In this case where the item or chattel has been constructed for it to be adapted to the realty and there is
intent to make it as such it becomes a fixture and if the item is not adapted with any special

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Group II LL.B
characteristic then it does remains a chattel such examples would include domestic animals and farm
equipment.9
The right of removal
1. Limited Right of Removal.
The right to remove objects which would normally pass with land depends on the extent of affixation.
Thus, if an article is a fixture and has become part and parcel of land, it cannot be removed but there
are limited exceptions to this rule.
Landlords and tenant: During a tenancy agreement a tenant attaches fixtures which become part and
parcel of the land will automatically revert to the Landlord as a general rule if the tenant abdicates the
tenancy agreement.
Exceptions:
● If the tenant fixtures are removed while the tenancy continues.

● If the tenancy is ended by a notice which does not allow enough time for the tenant to remove
his fixtures and if he is allowed reasonable time to remove the same he/she must make good any
damage that has been caused to the property, Concept of Property.

Fixtures installed by the tenant may range from:

● Trade Fixtures: Articles attached by the tenant for the purpose of his trade or business.

● Ornamental and Domestic Fixtures: An article which can be moved entirely is more likely to
fall within the exception than one which cannot.

● Agricultural fixtures: which at common law may include buildings and other articles used for
the purposes of agriculture were not regarded as being removable an agricultural tenant.
The court in the case of Elwes v. Maw [1802] held that material brought to a construction site by a
contractor remain the property of the contractor until such materials become affixed on the land which
is the doctrine that whatever is affixed in the soil belongs to the soil.
2. No right of removal.

● Between the Devisee and the Personal Representative.

The general rule is that in a will all articles whether fixtures or objects that have become part of the
land will pass under to the devisee as the person actualizing the will has not right to remove such
objects.
● Vendor and Purchaser.

As a general rule is that all articles that are affixed or attached to a parcel of land upon entering such a
sale agreement/contract of sale passes to the purchaser unless there is an express provision to the
contrary. This is promoted in Colegrave v. Dias Santus [1823]2 B&C.76. Where the owner of a
9 All Answers ltd, 'Distinction Between Fixtures and Chattels' (Lawteacher.net, October 2021)
<https://www.lawteacher.net/free-law-essays/property-trusts/define-fixtures-and-chattels-law-essays.php?vref=1>
accessed 20 October 2021

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Group II LL.B
freehold house in which various fixtures were inside were sold by auction. Nothing was said about the
fixtures. A conveyance of the house was executed and possession given to the purchaser. It was held
that they passed by the conveyance of the freehold, and that even if they did not, the vendor, the giving
up of the possession, could not maintain control over them.
● Mortgagor and Mortgagee.

If Land is mortgaged, all articles which are either fixtures or have become part and parcel of the land
are included within the security without any need for special mention. The mortgagor is not even to
remove any articles which he has affixed to the land after the date of the mortgage. See Reynolds v.
Ashby where a lessee to a land had mortgaged a piece of land upon which the factory together with the
buildings, fixtures, machinery and fittings. The Mortgagee herein failed to pay installments under a hire
purchase agreement with the seller. The seller wanted to possess the machines. It was held that the
machines were fixtures which passed with the factory to the mortgagee.

To Hell and Back? Limitations of the Doctrine of Cuius est solum, eius est usque ad coelum et ad
inferos

The Constitution of Kenya 2010 provides that all minerals and mineral oils as defined by law are
public land.10 The Petroleum Act goes ahead to provide that all petroleum existing in its natural
condition in strata lying within Kenya and its continental shelf' is vested in the National Government in
trust for the people of Kenya.11 The Mining Act states that every mineral in its natural state in, under or
upon land in Kenya; in or under a lake, river, stream, or water courses in Kenya; in the exclusive
economic zone and an area covered by the territorial sea or continental shelf, is the property of the
Republic and is vested in the national government in trust for the people of Kenya. 12 It goes ahead to
provide that subsection (1) applies despite any right or ownership of or by any person in relation to any
land in, on or under which any minerals are found.13 The same Act states further that:
1. A prospecting and mining rights shall not be granted under this Act with respect to private land
without the express consent of the registered owner, and such consent shall not be unreasonably
withheld.14

10 Constitution of Kenya 2010, Art. 62 (1) (f).

11 Petroleum Act, No. 2 of 2019, s. 14.
12 Mining Act, No. 12 of 2016, s. 1.
13 ibid.
14 ibid s. 37.

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Group II LL.B
These provisions read together limit the application of the ad coelom maxim 15 which states that
whoever owns land it is theirs up to the heavens and down to hell.

The case of the Turkana People & Tullow Oil

The Turkana Indigenous people in northwest Kenya are nomadic pastoralists whose main
socioeconomic activity is herding livestock and moving in search of water and grazing lands for their
animals.
The Turkana are among the most economically marginalized communities in Kenya.
“But we are rich, we have oil under our feet. Oil is one of the most precious commodities in this world.
This we know. We are rich but I am in tattered clothes, my children are hungry, and we barely have
water for drinking, let alone for our animals,” said 44-year-old Anguti Ekuwam.16
Kenya discovered oil in 2012. It was found in Turkana’s ancestral lands by British oil prospecting
company Tullow Oil that estimates there are around 600 million barrels of oil in wells that have been
discovered. The effect on Pastoralism has been marked:
“Some of the oil fields and accompanying infrastructure have been fenced off thereby denying access
to critical riverine pastures especially during the dry season when tsetse fly infestation is low. Some of
the migration routes have been blocked. This now forces some herders to cover longer distances to
access pasture and water. Although the company provided piped water for domestic and livestock use
in the settlements this has functioned negatively for sustainability of pastoralism. The concentration of
water in particular settlements draws in thousands of livestock thereby leading to depletion of
vegetation and soil erosion. The rapid growth of human population in the settlements and the
requirements for fuel-wood has also led to depletion of vegetation in the surrounding areas which
again is a threat to pastoralism.”17

15 Cuius est solum, ejus est usque ad coelum. iscount Simonds:

"In the sphere of criminal law I entertain no doubt that there remains in the Courts of Law a residual power to enforce the
supreme and fundamental purpose of the law, to conserve not only the safety and order but also the moral welfare of the
State, and that it is their duty to guard it against attacks which may be the more insidious because they are novel and
unprepared for. That is the broad head (call it public policy if you wish) within which the present indictment falls. It
matters little what label is given to the offending act. To one of your Lordships it may appear an affront to public
decency, to another considering that it may succeed in its obvious intention of provoking libidinous desires, it will seem
a corruption of public morals. Yet others may deem it aptly described as the creation of a public mischief or the
undermining of moral conduct. The same act will not in all ages be regarded in the same way. The law must be related
to the changing standards of life, not yielding to every shifting impulse of the popular will but having regard to
fundamental
assessments of human values and the purposes of society."

Lord Reid dissenting:

"Even if there is still a vestigial power of this kind it ought not, in my view, to be used unless there appears to be general
agreement that the offence to which it is applied ought to be criminal if committed by an individual. Notoriously there
are wide differences of opinion today as to how far the law ought to punish immoral acts which are not done in the face
of the public. Some think that the law already goes too far, some that it does not go far enough. Parliament is the proper
place, and I am firmly of opinion the only proper place, to settle that. When there is sufficient support from public
opinion, Parliament does not hesitate to intervene. Where Parliament fears to tread it is not for the courts to rush in."

16 ibid.
17 Jacob Omondi, “The Influence of Oil Exploration on the Livelihoods of the Turkana Community: A Study of Tullow
Oil Company in Lokichar Location of Turkana South Sub-County.”

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Group II LL.B

The Tullow Oil case is a perfect example of how rights to minerals are vested in government, clearly
limiting the applicability of the ad coelom maxim.

Peter Nzeki & 14 others v Base Titanium Limited & 4 others:18

The petitioners were residents of Nguluku area within Kwale County. They brought the petition to
court because they were allegedly affected by the mining activities of the 1 st respondent which was
licensed by the Government of Kenya through the 2nd respondent vide Special Mining Lease No.23;
License PL/2018/0119 area of 88KM2.

It was the petitioners’ case that the 1st Respondent relocated several families in Nguluku area but
discriminately left out the petitioners and their families from any form of compensation. Yano J held
that:
“In my humble view, the said judgment does not apply to assist or advance the petitioners’ case. This
is because the said case was brought before the High Court in the year 2001, which is three years
prior to the vesting of the land in the Government as a condition precedent before the grant of the
Special Mining Lease, and all compensation and resettlement claims by the owners and occupants of
the said parcels of land were duly processed and paid by the Government. Further, and in any event,
the vesting of the land in the Government no doubt extinguished all the rights of the then land owners
or occupiers of the said parcels of land and save for the Government, no other party, including the
petitioners, has any proprietary rights over the said parcel of land capable of being protected or
enforced on the basis of the judgment in Mombasa HCCC No.97 of 2001. In the final analysis, the
upshot of the foregoing is that this petition lacks merit and is dismissed with costs to the respondents.
Airspace Rights
The general rule in this regard is that the rights are only applicable to the extent of ordinary use and
enjoyment of land, and this is especially the case with the part granting rights to own land ‘all the way
to the heavens’.

In Bernstein of Leigh v Skyviews and General Ltd (1978) a plaintiff attempted to sue
for trespass when aerial photographs were taken of his property. The case established that a property
owner does not have unqualified rights over the airspace above their land.
On 3 August 1974 the defendants took an aerial photograph of the plaintiff's house.
The plaintiff alleged that in taking the aerial photo, the defendants had trespassed in the plaintiff's
airspace. In dismissing the claim, Griffiths J stated that "I can find no support in authority for the view
that a landowner's rights in the air space above his property extend to an unlimited height."
The case established that the rights of a land owner over his land extend only to a height necessary for
the ordinary use and enjoyment of his land.

<file:///C:/Users/user/Downloads/Obongo_The%20Influence%20Of%20Oil%20Exploration%20On%20The
%20Livelihoods%20Of%20The%20Turkana%20Community%20A%20Study%20Of%20Tullow%20Oil%20Company
%20In%20Lokichar%20Location%20Of%20Turkana%20South%20Sub-County..pdf> accessed 20 October 2021.

18 Environment and Land Case Petition 39 of 2019 [2021] eKLR.

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Group II LL.B
This extent of application is mirrored in the Kenyan jurisdiction, through Section 56 of the Civil
Aviations Act which allows for restriction on the heights of buildings in areas near airports and along
flight paths.
However, this does not imply that the right to one’s airspace is fully dispensed with.
In the case of Kelson v Imperial Tobacco it was determined that an advertising sign protruding into a
neighbour's airspace constituted a trespass.
The defendant owned the freehold in premises from which he ran a wholesale tobacco business. He
leased part of the premises to the claimant from which he ran a tobacconist shop and had a flat in which
he resided. The defendant erected a sign that protruded into the claimant’s airspace by four inches.
Although any injury to the plaintiff was very small an injunction was granted as otherwise it would
have effectively given a license for continued violation of the airspace.
In the Kenya Civil Aviation Authority & another v Timothy Nduvi Mutungi 19. The case refers to
the requirement of approval of the construction of buildings or structures that may interfere with
aircraft operations provided under section 15(3) of the Kenya Airports Authority Act 20, particularly to
height specifications of the building. There is an established regime and procedure for this approval
which includes a standard form titled, Aerial Masts and Other Such Heights Approval Application
Form.
Easement of land
In the case of Ruth Wamuci Kamau and Monica Mirae Kamau 21, the court of appeal defined easement
of land as a convenience to be exercised by one landowner over the land of a neighbour without
participation in the profit of that other land. The tenement to which it is attached is the dominant and
the other on which it is imposed is the servient tenement.
The owner of the land accepts the holder of the easement to enjoy the land or part of the land by
omitting to do some defined act or allowing some defined act to be effected on his land.
Easement of land is provided for under sections 136 – 138 of the Land Act as well as sections 32 and
33 of the Limitations of Actions Act.
Under the Limitation of Actions Act, an easement may be acquired where22:
● the access and use of light or air to and for any building have been enjoyed with the building as an
easement;

● any way or watercourse, or the use of any water, has been enjoyed as an easement

● any other easement has been enjoyed.

In the aforementioned case of Kamau v Kamau 23, the appellant had been given land earlier on by as a
payment of debt. Afterwards, the apellant was alloweda right of way and the right to take water across

19 Kenya Civil Aviation Authority & Another v Timothy Nduvi Mutungi [2017] eKLR
20 Kenya Airports Authority Act Section 15(3)
21 Kamau v Kamau [1984] eKLR
22 Limitations of Actions Act Section 32
23 ibid

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Group II LL.B
the respondent’s land. The court held that a right of way and a right to take water are affirmative
easements for they authorise the commission of acts whicch are injurious to another and can be
subject to an action if the enjoyment is obstructed.
Further, once an easement is validly created, it is annexed to the land so that the benefit of it
passes with the dominant tenement and the burden of it passes with the servient tenement to
every person into whose occupation these tenements respectively come.24
In the case of Aquila Properties Limited v Bhupendra Patel, the plaintiffs claimed that the
defendants were trespassing on their land but the court held that the construction of a wall was
not trespass since an easement had been created between the defendants and the previous owners
of the land.25
In the case of Esther Wanjiku Mwangi & 3 others v Wambui Ngarachu (sued as the lega
representative of the estate of Ngarachu Chege), the plaintiff wanted to own a piece of land
measuring 58 by 3 meters and use it as access to their dominant land. The piece of land was
under the title of the defendant. The court opined that a claim of easement is a claim on use of
land rather than possession or ownership. An easement on one hand, burdens and on the other
hand benefits. If it was to be allowed that the easement holder is registered as an owner of the
space over which he enjoys an easement then land which is a factor of production would be
unnecessarily burdened thus limiting its tradability as a commodity.26
Additionally under paragraph 41, the court held that an easement is geared towards creating
interaction among neighbours of social and commercial nature. Rights of access are social and
commercial in that respect. The claim as urged by the Plaintiffs is therefore untenable and I see
no reason to look into the issues of the probity of the mutation forms. If the land were to be
registered in their names, it would amount to a total ouster of the owner of the servient land,
which is against the very nature of a right to an easement. An easement dissipates/dissolves once
there is unity of the servient and dominant tenements. The owner of the servient tenement
continues to retain exclusive control and ownership of the land. The easement being an
overriding interest may or may not be registered on the title. It moves with the land. It is a right
that binds the land and not the holder of the easement.27
The house without land system
The ad coelum principle defines land as being made up of the surface of the earth, the subsurface rock,
bodies of water, natural resources and the airspace. Kenyan law however limits this principle when it
comes to the house-without-land system that is mostly prominent on the Coastal Region.
Various case laws have formed the jurisprudence of this system that has been described as baffling
scholars, jurists and practitioners.28

In the Famau Mwenye case, the plaintiff had built the suit house on the defendant’s parcel of land 40
years earlier in 1967 and has since been paying “ground rent” to the defendant. The defendant kept

24 Kamau v Kamau [1984] eKLR

25 Aquila Properties Limited v Bhupendra Patel [2017] eKLR
26 Esther Wanjiku Mwangi and 3 others v Wambui Ngarachu (Sued as the legal representative of Ngarachu Chege –
deceased) 2019 eKLR.
27 Ibid para 41
28 Famau Mwenye & 19 others v Mariam Binti Said [2005]

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increasing the “ground rent” and the plaintiff at one point failed to pay the new rent and the defendant
thus levied distress.29 This tenancy relationship was not set out in any written agreement but the terms
of the ground rent were charged over time by the plaintiffs on their own thus constituted local usage.
The court went on to determine that this system was in itself a lease as in section 105 of the Transfer of
Property Act. This system defies the common law ad coelum principle since the owner of the house is
different from the owner of the land on which it stands.
It is important to note that even though this system is not directly provided by law, judicial notice has
long been taken of this system in the Coastal region.30
Within this system, one party has the right to build their house on another’s property under an
agreement which does not pass the title to the land. 31 As further explained in Re Estate of the Late
M’Marete M’Ntii32 the concept entails the purchase of a portion of land which does not grant
ownership rights to the purchaser. The purchaser after payment of the agreed consideration, which is
equivalent to stand premium payable in conventional long leases, acquires the right to construct a house
on the portion of land but title does not pass. It is a lease for which a monthly ground rent is payable by
the purchaser to the owner of the land.

29 Ibid
30 Samuel Njuguna Kimemia v Rose Mgeni Mtwana [2012] eKLR
31 Christopher Baya & 2 others v Philip Kiluko & Another [2004}
32 [2016] eKLR

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