Housing Rights in Kenya; Is the

Condominium concept a panacea for
the current Housing Shortages in
Kenya’s urban areas? Conveyancing
practice of ‘Condo’ interests through
Sectional Titles and Subleases.
1.0 Introduction

•This paper critically examines the question of Housing Rights in Kenya
The paper also seeks to briefly discuss the current methods of
conveyancing of condominium interests.

• Kenya like many other developing countries is urbanizing rapidly.
• Kenya’s towns and cities are growing at an unprecedented rate owing to the rise in
numbers of people in search of “hope” and economic opportunities in towns and cities.
• Kenyan towns and cities are the hubs of much of the county’s national production,
consumption, economic and social processes that generate wealth and opportunity.
•The Phenomenon of urbanization is not alien to Kenya alone. It is world wide. As global
populations soar, most of the world’s cities will experience increased population growth
owing to migration in search of ‘the better life.’
•By the end of 2007 it is also estimated that 1 billion people will live in slums.

electricity shelter. • In Kenya it is estimated that about 72% of the total urban population live in slums. • Today 1 billion people or 1 of every 3 urban dwellers live in slums. and basic sanitation facilities. • Kenya ‘s slums and informal settlements are also overcrowded and have been described as breeding grounds for criminal gangs and Aids. • Kibera which is situate in Nairobi Kenya is reputed as Africa’s largest slum. . some 6 billion people representing two third’s of humanity will be living in towns and cities.• UN habitat estimates that by 2050. live in urban slums or informal settlements. unless urgent proactive measures are taken now to better plan our towns and cities. • UN habitat latest report published 2006/7 says that half of the word’s population live in cities. • These large numbers of people will. • Social ills such as prostitution are also wide spread in slum areas. • Most of Kenya’s towns and cities are places of considerable despair with large proportions of slum dwellers living in job-lessnes and hopelessness and lacking in amenities such as water.

UN agencies involved in housing and infrastructure development and NGO’s propagating human rights. can be witnessed. the private sector. local government authorities. poverty and social crime. pollution. • Kenya is a developing country. .0 Housing rights are human rights • Housing is an issue that is intimately connected with the basic trait of being a social being. How we manage the ongoing rapid urbanization is arguably one of the biggest challenges facing our government.• Slums are also places where considerably high levels disease. 2.

(physical structure and design). • As a human rights. • Housing is the central hub of everyday living. • The right to live a dignified life cannot however be attained unless all the basic necessities of life such as work. free. home ( social and psychological features). healthcare. and secure healthy life. housing rights has been recognized internationally. . safe. safe secure and meaningful habitats. education and culture are adequately and equitably available to everyone.• All human being need to live in collective. and neighborhood (physical and social characteristics and local services. • Housing rights are closely linked to the right to life and have thus been recognized as fundamental human rights in many countries. • Housing is a multi-dimensional concept that encompasses the human settlement characteristic of the house. International human rights law has been designed to protect the full range of human rights required for people to live a full. food . • In Kenya many people are deprived of the basic amenities that are required to settle and live at minimum standards of basic human decency.housing.

• The right to adequate housing has been recognized as a component to the right to a decent standard of living with the adoption of the Universal Declaration of Human Rights in 1948. clothing and housing and the continuous improvement of living conditions’. • In 1996 World leaders reaffirmed the right to adequate housing when adopting the Habitat Agenda at the 2nd United Nations Conference on Human Settlements. . • The right to Housing has been recognized in the International Covenant on the Economic Social and Cultural Rights (ICESCR). • Article II of the ICESCR states that ‘parties recognize the right of every one to an adequate standard of living for himself and family including adequate food.

3. • In Kenya no single piece of national legislation provides comprehensive protection of housing rights as enshrined in international law. .0 Kenya’s Housing Policy and related Legislative frameworks. • Yet effective constitutional and legislative measures on various aspects of the right to housing are not only desirable but have indeed already been used successfully in a number of countries such as Britain India and the USA.

. Hardly do you hear citizen complaining about the mushrooming of slums. USA. Britain. • Talk about infrastructure in Kenya and all people think about is bad roads. provide of jobs and/or the provision of infrastructure. such as India. • In Kenya the rights of housing and the obligation of the state to provide adequate housing and connected infrastructure especially for the poor has not been given as much prominence as the obligation of the state to steer economic growth. lack of shelter.• Yet effective constitutional and legislative measures on various aspects of the rights to housing are not only realistic and desirable but have indeed already been used successfully in an number of countries. healthcare and inadequate sanitation facilities and especially in our towns and cities.

displaced and disable persons. • Kenya has a National Housing Policy. low and middle income earners. • Whose obligation is it to provide these groups with decent housing and related services? • All these groups are in Kenyan urban areas and in urgent need of proper housing and connected infrastructural services.3 of July 2004. . children. What about the retirees living in the urban areas? Civil servants. the elderly. • To what extends has the policy been operationalized to deal with the widespread urban housing deficit? The policy identifies housing vulnerable groups to cover the poor. women. Jua- kali entrepreneurs etc.• Are Kenyan forever complaining of bad road or oblivious of their other rights such as the right to descent housing and related infrastructural services such as water and basic sanitation ? • In 2006 a Draft Housing Bill was published but the same was never enacted into law by the 9th parliament. Sessional paper No.

• The Local Government Act Cap 265 of the Laws of Kenya. • The National Housing Corporation Act. 4. • The Land Titles Act Cap 282 of the Laws of Kenya.0 Other relevant legislation related to Housing Rights • Kenya has other relevant legislation touching on matters of urban housing and some of these include. • The Physical Planning Act 1996. • The Government Lands Act Cap 280 of the Laws of Kenya. • The Government Lands Act. . • The Registered Land Act. • The Registration of Titles Act Cap 281 of the Laws of Kenya. • The Sectional Properties Act 1987.

sectional titles a panacea to Kenya’s housing problems. • The National Housing Policy for Kenya recognizes the importance of private and public sector actors in housing and infrastructure provision. The size of land remains stagnant as urban populations continue to grow. . • The 7% growth in the economy between 2002 – 2007 has seen numerous private sector (developers) invest in housing provision. • Kenya’s urban populations continue to spiral yet our land is finite.0 In the Concept of subleases.3.

Central government to their employees and general public. such as NSSF.• The increased investments on housing provisions is also attributed to liberalized lending by the banks and the quest to provide more affordable housing by public sector actors. NHC. .

valuers. etc. roads. • Planning and budgetary restrictions have however led to fewer units than the actual potential of the land. Urban populations are also soaring due to the factors outlined herein-above. • There has not been a lot of development for low cost housing for the low and middle income earners • Most of these developments by private sector actors are not necessarily supported by the required infrastructural services necessary for the developments such as water. • A lot of planning issues are ignored and zoning requirements are not necessarily obeyed. engineers. . sewer. How can these forms of title could alleviates the current housing deficit in Kenya’s areas • Kenya’s urban areas are increasingly overwhelmed by large numbers of rural urban immigrants. • The need for urban housing have led to lots of investments by private developers the motivation being the quick and huge profits that accrue from these particular investments. etc. • Investments in the real property market has also led to considerable professional work for lawyers. estate agency professionals. 5. planners. architects. • Due to the finite nature of land a lot of developers are opting to build flats and/or apartments.0 conveyancing of housing rights through subleases and sectional titles.

Once the lease is registered it then becomes the ‘title’ for the apartment or flat. • The management company is normally incorporated by the developer before the commencement of the sale and purchase process of the units. . • The developer must however transfer its right to the reversionary interest in the property to a management company in which all the tenants in the development have shares. • The minimum number of years for enjoyment of the un. 6. • The role of the management company includes day to day management of the common property in addition to taking charge of statutory obligations for which the company may be liable such as payment of land rents and land rates once all leases have been registered and tenants have taken possession of the units. • The sublease concept is based on the abstract reasoning that each floor of apartment block is a separate parcel capable of subsisting and thus alienation. • The sublease concept is also based on the reasoning that land supports or can support various estates and interests capable of ownership and alienation. • Under the sub-lease concept developers issue leasehold interests for the remainder of their terms in the land. In Kenya this phenomenon is hardly 25 years. • Most of these leasehold interest are issued in respect of government or local authority leases. • The sublease is registered against the Title of the developer for the parcel of land on which the building rests or is situate.0 what is the sub-lease concept? • The sublease concept applies mostly to ownership of high –rise apartments on the same parcel of land. • The management company owns the reversionary interests in the property and also the common property. • Several person can own various interests in the same piece of land simultaneously.expired interest preferred for subleases is at least fifty years. • The buyer of the flat or apartment acquires a lease from the developer who is a normally a lessee of the government or a local government authority.

The commencement date of the statute was 1st April 1990. . • The Registrar of Lands on the payment of the prescribed fees issues a certificate of sectional title in respect of each unit. • The Sectional Properties Act 1987 was essentially enacted to facilitate the sale and purchase of flats and apartments by way of sectional titles. • Key characteristic of the Act include separate ownership of flats and apartments.ownership of common property by all flat/ apartment owners. • The pre-amble to the Act describes the Act as one providing for the division of buildings into units to be owned by individual proprietors and common property to be owned by proprietors of the units as tenants in common and to provide for the use and management of the units and common property and for connected purposes. 7.0 Ownership of flats and apartments under the Sectional • Properties Act 1987 The Sectional Properties Act was enacted in 1987. GLA or other systems of registration. • On the registration of the sectional plan the Registrar shall close the Register of the parcel described in it and shall open a separate register for each unit described in the plan. • Sections 4 and 5 of the Act are key as they relate to the registration of sectional plans in respect of the units. • The Sectional properties Act has been operationalized and over 7000 titles issued for Nyayo Estate in Nairobi. there must first be a conversion of title to RLA. The Sectional plan is the architectural drawing outlining the units and the proportional common area to which each unit related to. • The substantive law pursuant which title is issued is RLA. • Where the land the subject of the proposed development is owned under RTA. co.

landscaping. insurance of the building. the sectional plan. • Section 48 of the SPA 1987 provides that all payments by a purchaser to the developer must be held in trust. drawing or photograph showing the interior finishings of the building.laws or proposed by. any management agreement or proposed management agreement. • Unlike in the sublease regime. • The SPA at Section 17 provides for the automatic constitution of a Corporation once a Sectional Plan is registered Under Section 4 of the Act. any recreational agreement or proposed recreational agreement. • The purchaser must also be informed of the estimated amount of service charge and his/her unit factor apportionment in respect of the unit. • Sale of residential Units under the SPA 1987 will be by way of purchase agreement. fences.g. the lease of the parcel. • The duties of the Corporation are described at Section 20 of the Act and these include carrying out any duties imposed on it by the by-laws. any recreational facilities to be used by persons residing in the units. compliance with statutory obligations. leased or charged or otherwise dealt with in the same manner as any other land registered under the RLA. e. Sectional Titles • A Sectional Title may devolve or be transferred. the exterior finishings of the buildings as it will exist when the developer has fulfilled his obligations under the purchase agreement.etc.’ • The Corporation has perpetual Succession and a Common Seal. • The provisions of the Companies Act Cap 486 do not apply to the Corporation. or certificate of sectional title for the unit. any charge that affects or proposed charge that will affect the title to the unit or proposed unit. keeping building and common property in a good state of repair.. walkways. Section 46 of the Act outlines the documents that must be delivered to a potential purchaser by the developer among these the by. • The Corporation is designated a name. management of service charge etc. the location of roadways. . parking areas. ‘The owners of Sectional Plan Number…….laws of the corporation. the developer must deliver to the purchaser at least 10 days before the execution of the purchase agreement a description.