LAND LAW

LAND AS PROPETY AND LEGAL CONCEPTS OF LAND

GROUP 2
 LAND AS PROPERTY
-Land can not be owned only rights over it can be asserted as a claim for property in land.

-The bundle of rights that one may hold in land is variable from a person to a person and
from jurisdiction to jurisdiction.

-Kenyan law employs the concept of movable and immovable property.

-According to section 3(26)of the General Clauses Act, of 1897, immovable properties
include land and other things attached to or permanently rooted in the earth, in general,
these include land or real estate properties.

-Land comes under immovable property and the benefits arising from the land are
considered immovable, any object growing under the surface in its natural state is
immovable such as minerals, natural state is immovable such as minerals natural vegetation,
and stones.
-The movable property consists of the owner's personal belongings on the property that can
be moved freely and are not fixed to the property

-Ownership of land is different from ownership of other properties because of its unique
characteristics and its value as a natural resource land can not be created nor destroyed by
the apparent owner.

-Land is capable of being alienated and made the subject of proprietorship but the
proprietor’s use is subject to various qualifications. Eg: Numerous states in Kenya limit the
powers of a proprietor over his land.
THE LEGALISTIC DEFINITIONS OF LAND
UNDER THE CONSTITUTION (2010) OF KENYA
ARTICLE 260:
Land is defined to include :
(1) The surface of the earth and the subsurface
2: Any water body on it or under the surface
3: Marine Waters in the territorial sea and exclusive economic zone
4: Natural resources completely contained on or under the surface
5: The air space above the surface
UNDER THE REGISTERED LAND ACT {CAP 300:
-Section 3 defines land as “land includes land covered with water, all things growing
on land and buildings and other things permanently affixed to land.

UNDER THE REGISTRATION OF TITLES ACT (CAP 281]:

-The land is defined to include benefits [derived]therefrom things embedded or rotted
or attached to those embedded thereon for the permanent beneficial enjoyment of that
which is so attached to the land or anything so attached any estate, interest therein,
together with paths, passages, ways, water, watercourses, liberties, privileges,
easements, plantations and gardens thereon or thereunder unless it's specifically
excluded.
UNDER LAND CONSOLIDATION ACT CAP 283:
-Land I defined to include land covered with water any estate or interest other than a
charge, growing things, permanent fixtures, and buildings.

UNDER THE TRUSTS OF LAND ACT (CAP 290):

-Land is defined to include land of any tenure including water and minerals whether or
not held apart from the surface. It also includes buildings, rents, easements, any estate
or interest, in the land, and any privilege and or benefit derived from land.

UNDER THE LAND ACQUISITION ACT (CAP295):

-Land includes all land whether covered with water or not. It includes things attached to
the land or permanently fastened and any estate, term, easement, right, or easement in,
on, or over land.
UNDER THE LIMITATION OF ACTIONS ACT (CAP 22):
-Section 2 defines land to include immovable property or proceeds from the sale of immovable
property but not an easement or a debt secured on immovable property by a mortgage

UNDER THE LAND PLANNING ACT (CAP 303)

-Section 3 thereof defines land to include land covered with water, buildings, and other things to
land and any interest or right or easement in, on over land.
Each act defies land to specifically meet its purposes. Further the phrase “includes “is employed
perennially in all acts so as to ensure that the definition is all-embracing all-inclusive.
-There are more Acts which also make valid attempts to define land
-Valuation for Rating Act which says land includes any improvements thereon or there under
-Another Act is the Registration Of Documents Act
 THE CUJUS MAXIM
-The rule was borrowed by the English by the Romans

-The rule read as Cujus est solum ejus est usque coelum et ad inferos which means that whose is the soil,
his is also that which is up to sky and down to the depths of the earth.

-From the previous provisions, It is obvious that the law abides by a specified definition.

-Thus land embraces not only the physical surface of the earth but also its surrounding which includes
buildings, trees, water sources, and many more.

-Basically, the elements under this maxim are soil, atmosphere, and geosphere.

-The general effect of the rule divides land into three entities which are basically the elements stated above.

-It cruxes on the assumption that land ought to be tangible and capable of separation. This phenomenon was imported
into Kenya as part of the English Common law respective to section 3 of the Judicature Act. It also corresponds with
the East African (lands) orders in Council 1897

-However, the maxim had provided a wide definition of land hence it had to be narrowed
The truncation of the Cujus maxim
-The initial scope of the maxim meant that the land owner owned the land both
vertically and up to the centre of the earth.

-Under the three elements stated earlier ,Solum basically meant soil. The English
developed a maxim Quicquid plantatur solo,solo cedit which means that whatever is
attached to the soil or anything annexed there to become part of the soil.

-Under the maxim they deemed fixtures as to be part of land .Fixture basically is any
physical property that is permanently attached to real property.

-Fixtures had to certify some conditions which were.

-The nature of the fixture

-The degree of annexation to the soil

-The object of annexation

-This meant that a landlord who owned the solum (soil) was entitled to any fixtures since it automatically
became part of his land and no fixtures would be removed without his consent hence the meaning was hard to
be narrowed down. Due to this, some them had to come up with some exceptions which were
I. Where there were trade fixtures, they could be removed
II. Where they were ornamental fixtures they would similarly be removed
III. Domestic fixtures and agricultural fixtures could similarly be removed
-In regard to the atmosphere, the projection into one airspace was considered trespass to land. The common
law introduced the doctrine of reasonable user and also ad inferos was popularly used which means the center
of the earth.
-In regard to the Geosphere, according to the maxim all water and minerals belong to the owner of the solum.
However, there were limitations like silver and gold which were assumed to belong to the king and queen.

-There was also a distinction between water oozing into the ground and water flowing in defined channels
where the latter was declared not to belong to the owner of the solum.

-As held in the case of Bradford Corp vs. Pickles, If one sunk a well and kept water then it became the
property of the owner of the solum.
Judicial application of Cujus Maxim
The cujus maxim has been adopted by judges whose opinions are considered authoritative and by
text writers. The maxim was applied in English common law in various cases:

In 1586 Bury V Pope was the first instance this maxim was applied. The owner of the land
wanted to erect a house against his neighbor’s windows. The neighbor brought an action against
the owner as the house would block out the natural light to the neighbor’s house. It was decided
that the building of the structure was entirely legal, since the owner of the land owned all of the
air above his land too. Therefore, even if it blocked out the natural right to the neighbor it did not
matter as the owner had absolute power over his land.

In Wandsworth Board of Works v United Telephone Co. [1884] an unauthorized telephone

wire above the plaintiff’s land constituted trespass to the airspace. Therefore a landowner had the
right to cut a wire wrongfully placed over his property.
In the case of Smith V Petroleum Co a tenant fixed petrol pumps and tanks onto the grounds.
Subsequently, the tenancy came to an end. The tenant failed to remove them. The question was
whether the property in them had passed to the landlord. Since it had been conceded that they were
trade fixtures, it was held that they could be removed within a reasonable time span and that property
in them had not passed to the Landlord. This case shows the limitation imposed on the maxim.

In the case of Kelsen v Imperial Tobacco Co (1975), The defendant owned the freehold in premises
from which he ran a wholesale tobacco business. He leased part of the premises to the plaintiff from
which he ran a tobacconist shop and had a flat in which he resided. The premises were on a street with
a ground floor room and a flat rooftop. On the two front sides the shop was bounded by streets and on
one side of the back was an adjoining building of three stories. During the lease, the defendants,
wholesale tobacconists, displayed three advertising signs on the wall that protruded into the plaintiff’s
airspace by four inches. The judge granted a mandatory injunction ordering the defendants to remove
the sign which projected only four inches over the plaintiff’s property. The air space above the shop
was part of the premises demised to the plaintiff on a true construction of the lease and there was
nothing to displace.
Section 3 of the judicature act provides that English common law as a source of law in Kenya. Therefore these
maxim of Cujus Maxim has been applied in various cases in Kenya;

Mukuru Munge V Gilead Mwanyasa [2006] where the defendant without any
color of right, demolished Kshs 57,600 worth of structure belonging to the plaintiff. In his
response, the appellant sought the dismissal of the suit arguing that the structure had been sold to him. The senior
magistrate in his judgement however found that the defendant had no lawful cause for the demolition and thus the
respondent was entitled to his claim. The maxim does not permit interference with legitimate rights of the owner.

In the case of Msallam Said Abdalla v Suleiman Lazari Nangela & Another (2011).The occupation of land
without an obligation to any form of payment is contrary to the law thus the dispute arises from a unique land
tenure. That land system is only referred to as ‘house without land’. That is, the owner of the house is different from
the owner of the land on which it stands. It therefore defies the common law concept of land expressed in the Latin
maxim, jujus est solum ejus est usque ad coelum [meaning, ‘whose is the soil, his is also that which is above it’].”
 STATUTORY LIMITATION OF THE CUJUS MAXIM

They are many exceptions to the rules enshrined by the cujus maxim.Many acts that have
been enacted and exempt and serve as a good example on the exemptions on the rules of the
maxim and they include the following,
1)Mining act Section 4 of the mining act explains that minerals including oil and gas belong to the government.

2)Civil aviation act section 9 of the civil aviation act states limits the amount of airspace one can use since it grants
the minister power to specify the height of any structure within the air space.

3)Kenya post and telecommunication act section 16 of the act grants access of ones land to install telephone lines .

4)The Electrical supply lines act grants Kenya power access to ones land during installation of electricity lines .

5) Way leaves act also grants the state to have the right of direction in laying electric lines ,underground cables etc.

Both common law and customary law limit the meaning of land to property to solum only .
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