PROPERTY LAW I

KLAW 311
OMOLO J.A., LL.B (Moi University),
LL.M (New York University), LL.M
(National University of Singapore)
 1.0.0 Introduction
1.1.0 The Concept of Property
• Refers to the relationships between an owner of a
thing (subject) to the thing (object) and to all
other individuals (third parties).
• Denotes a network of legal relationships.
• The term property is derived from the Latin word
‘proprius’ which means one’s own.
• Property is created by law: the law defines what
can be owned, by who and on what terms.
• Under Common law, property is viewed as a
‘bundle of rights/sticks’.
• As rights, the bundle confers entitlements upon
an owner and obligations on others in relation
to the thing owned.
• A right denotes an affirmative claim.
• The bundle that denotes property is made up of
sticks (rights) that entitle an owner to do
various things
• Sticks could be owned by different persons
(landlord-tenant/ chargor/chargee/tenant)
• An owner may hold all the sticks in one bundle
at the same time or may opt to sell or lease out
some of them
• The conceptualisation of property as a bundle
of sticks or rights under the Common law
system is not compatible with the view in
Roman Jurisdictions.
• Under Roman law, property is viewed as
indivisible. It cannot be divided into different
parts to be held by different persons..
• Any attempt to subdivide the concept of
property into various rights to be owned by
different persons extinguishes the efficacy of
the property.
• The Roman law views property as a
dominium and the owner has the rights to use;
make abuse of and enjoy the fruits of- Usus
abusus fructus.
• Some of the common sticks that make up the
bundle of rights constituting property include:
– right to possess
– right to use
– right to manage
– right to the income of the thing
– right to the capital
– right to the security
– right of transmissibility
– absence of term
– the prohibition of harmful use
– liability to execution
– incident of residuarity
• Key sticks in the bundle:

– right to exclude others;

– right to possess and use;
– and the right to transfer.
1.1.1 Right to exclude:
– This is the right to keep out others from the use
and possession of property.
– An owner is entitled to institute an action for
trespass.
– This right is however not absolute, see article 40 of
the Constitution. For instance, the state has the
right to compulsorily acquire private property.
1.1.2 Right to possess and use
– This is the right to take physical charge of the
property and to make free use of it.
– Loss of possession and use does not however
extinguish an owner’s proprietary rights over his
property, e.g tenant-landlord relationship.
– In certain instances, extended use by other people
can extinguish an owner’s right (adverse
possession).
– Under traditional English law, an owner had a
freehand to use his property as he wished as long
as the use did not amount to nuisance. This right
has now been significantly limited by law. For
instance, the state has police powers on the use of
land so as to safeguard environmental goals, good
planning and public safety.

– Types of nuisance: private and public

• Rule in Rylands v Fletcher [1868] UKHL 1
– Types of nuisance: private and public
• Rule in Rylands v Fletcher [1868] UKHL 1

"the person who for his own purposes brings on

his lands and collects and keeps there anything
likely to do mischief if it escapes, must keep it
in at his peril, and, if he does not do so, is prima
facie answerable for all the damage which is the
natural consequence of its escape"
1.1.3 Right to transfer
– the right to transfer an owner’s interest to others.
– transfer can be voluntary e.g in the case of sale or
by operation of the law e.g in succession,
bankruptcy, execution etc.
– right to transfer is also not absolute. For instance,
the law requires spousal consent for certain
categories of property; a bankrupt person also
cannot transfer his property so as to defeat a
creditor’s claim; one cannot transfer a freehold
interest in land to a non-Kenyan citizen under
article 65 of the Constitution.
 1.2.0 Ownership, Possession and Title
1.2.1 Ownership
• Ownership denotes the quantum of rights that a
person has in a thing.
• Under Roman law, ownership is the absolute right to
enjoy and dispose of a thing. It is a dominium.
• Under English law, ownership is not an absolute
right. It is a form of possession.
• Type of ownership depends on the quantum of rights
that one holds
1.2.2 Possession
• Possession refers to the de facto relationship
between a person and a thing.
• Possession can be actual or constructive
• It reflects evidence of ownership of property.
• Under common law, possession is the origin of
property and it was said that ‘possession is nine
points in law’. A person with an earlier claim to
possession had a better right in a thing (think of
applications for status quo in trespass cases)
 Pierson v. Post [1977] 38 P & CR 452
Post went hunting for a fox. Just as he was about to
fire his gun at a fox, Pierson spotted the fox and
with the knowledge that Post was chasing it fired at
the fox and killed it and went away with the meat.
Post sued Pierson for the value of the fox and lost.
Court held that Pierson had an earlier to possession
by fatally wounding the fox. Pierson had asserted a
more concrete form of control over the animal. The
event took place in 1805.
• In law, extended and uninterrupted periods of
possession may in certain instances mature into
property by operation of law e.g under adverse
possession.
• Section 7 of the Limitation of Actions Act
provides that:
An action may not be brought by any person
to recover land after the end of twelve years
from the date on which the right of action
accrued to him or, if it first accrued to some
person through whom he claims, to that
person.
• Section 9(1) of the Act defines when the right of
action is deemed to arise by stating that:
Where the person bringing an action to
recover land, or some person through
whom he claims, has been in possession of
the land, and has while entitled to the land
been dispossessed or discontinued his
possession, the right of action accrues on the
date of the dispossession or discontinuance.
 Gideon Munyao Mutiso v. Sarah Wanjiku
Mutiso [1984]eKLR
• court declared that adverse possession is
possession that is inconsistent with the title of
the owner.
• Adverse possession arise where a non-owner
takes over possession of property without
permission of the owner and uses it in a
continuous, open and adverse way without any
objection from the owner for a prescribed
period of time.
 1.2.3 Title
• refers to a set of facts upon which a claim to a
legal right is based.
• under modern laws, title is acquired through
state’s formalisation process and evidenced by
an official document granted by the state.
 1.3.0 Categories/ Forms of property
1.3.1 Real and Personal Property
• Classification traceable to feudal England.
•
• Under English law, only land could be specifically
recovered by a disposed tenant from the person who
ejected him. Any person who was deprived of other
forms of property had to sue for damages instead.

• land became known as real property (real action for

recovery) while other forms of property were referred
to as personal property (personal action for recovery
of damages).
• land ownership was regarded highly and disputes
about land were heard by the King’s courts while
disputes about personal property were determined
by churches.

• Personal property is further divided into two

categories: choses in possession and choses in
action. Choses in possession refer to tangible
things while choses in action refer to intangible
things.
1.3.2 Tangible and Intangible Property
• Based on capacity for physical possession.
• Tangible property can be touched eg. land, car,
phone.
• Intangible property has no concrete physical
form eg IPRs, shares, debts.
• The creation of intangible property has been
spurred by development in information
technology.
1.3.3 Public and Private Property
• Public property refers to property whose
consumption by one person does not diminish
availability to others e.g knowledge.
• Public property is non-rival and non-
excludable.
• Non-rivalry means that consumption by one
person does not diminish quantities available
to others. Non-excludability means that it is
not possible to restrict enjoyment to only
paying persons. It is available for all e.g.
natural air.
• Private property is available for private and
exclusive use.
1.3.4 Movable and Immovable Property
• Movable property are those that can be
physically moved from one place to another
while immovable are those that can’t be
moved physically.
• Immovable property refers to real property
while movable property refers to personal
property known as chattels
• This categorisation is important for various reasons.
– under the Law of Succession Act, succession to
immovable property is governed by the law of the situ
while succession to movable property is governed by
the personal law of the testator’s place of domicile at
the time of death (section 4).
– before confirmation of grant of letters, an administrator
does not have capacity to transfer immovable property
(section 82).
– a surviving spouse enjoying a life interest in an estate
under section 35 and 36 of the Law of Succession Act
can only dispose of immovable property with consent
of court- section 37.
 1.4.0 Philosophical Foundations of Property
• What are the origins of property rights and what is the
justification for their existence?
• Thinkers have developed various theories as.
• The theories provide a normative/ philosophical basis
for granting property rights.
• The theories seek to explain the purposes of having a
property rights system and the content of the rights so
granted.
1.4.1 First to Occupy Theory
• also known as ‘desert theory’
• posits that the first-in-time to take possession became
the owner of the property.
• this theory was particularly popular in the 19th
Century and was used to allocate natural resources
like wild animals, gas, oil etc.
• natural resources were regarded to be ownerless and
as such effectively belonged to entire humanity. At
this time, there was an abundance of natural resources
and human population was small.
 Pierson v. Post [1977] 38 P & CR 452
• the court stated in response to a claim of
possession by Pierson on account of hot pursuit of
the fox:
If the first seeing, starting, or pursuing such
animals, without having so wounded,
circumvented or ensnared the animal, so as to
deprive them of their natural liberty, and
subject them to the control of their pursuer,
should afford the basis of actions against
others for intercepting and killing them, it
would prove a fertile course of quarrels and
litigation.
• to mature into property, occupation had to be
effective and had to be communicated to the
whole world.

• Additionally, one would have to expend some

form of labour on the property.
Manifestation of property claim in modern times
Parker v British Airways Board [1982] QB 1004
• a passenger found an abandoned gold bracelet in
an airport lounge. By picking the bracelet, it was
held that the passenger had taken over possess and
made communication to the whole world of her
occupancy. The airport’s claim was rejected on
account of failure to stake any form of control
over such abandoned items by, for instance,
putting up a notice indicating that all items
abandoned at the lounge belonged to the airport.
 Mabo v. Queensland [1922] 66ALJR 408
• the High Court of Australia recognised the title
of native communities on account of long
occupation.
 Centre for Minority Rights Development and Minority
Rights Group International v. Kenya (decision of
February, 2010), Communication 276/2003; African
Commission on Human and Peoples’ Rights v. Republic
of Kenya, African Court on Human and Peoples’
Rights, Application No. 006 of 2012; Kemai & 9 Others
v. Attorney General and 3 Others KLR (E&L) 1; Civil
Case No. 238 of 1999.
• See arguments in favour of indigenous communities in
Kenya over land occupied by them
• Claims for interest in land based on adverse
possession are based on long and uninterrupted
possession
• the occupancy theory plays a role when determining
priority in instances of competing claims: the first to
register prevails in charges and in cases of double
registration of title (See section 81(1) of the Land Act-
charges rank according to the order in which they are
registered).
1.4.2 Natural Law Rights theory and Labour Theory
• Natural law school of thought views property as a gift
of nature granted to all humankind.
• Human beings are the stewards to use it responsibly.
• Property rights are thus granted by God and not by
the government.
• To appropriate part of the property for personal use,
one has to mix it with his labour.
• John Locke in support of this theory observes in Locke J,
Second Treatise of Government, Hafner Publishing, New
York, 1690, Ch. 5, para 26:
God hath given the World to Men in common, hath also
given them reason to make use of it the best advantage of
Life, and Convenience. The Earth, and all that is
therein…belong to Mankind in common, as they are
produced by the spontaneous hand of Nature; and nobody
has originally a private Dominium, exclusive of the rest
of Mankind, and in any of them, as they are thus in their
natural state…
• Based on this theory, property owners must make maximum
efficient use of their property. Anyone not able to efficiently
exploit the property should let it be free for exploitation by
other members of the society. Failure to continue investing
labour leads to loss of private property rights which reverts to
the entire society to hold in common. It is the investment of
labour that entitles one to a private claim to property. Locke
observes that:
As much as a man tills, plants, improves, cultivates, and
can use the product of, so much is his property. He by his
labour does, as it were, enclose it from the common.
1.4.3 Legal theory
• Under this theory, it is the law that defines what
constitutes property.
• Property is what law declares as property.
• Jeremy Bentham is one of the proponents of this
theory and he observes in Bentham J., The Theory of
Legislation, Oceana Publications, New York, 1975,69
that:
Property and law are born together, and die
together. Before laws were made there was no
property; take away laws and property ceases.
• According to this theory, property represents legal
relations among people in relation to a thing.
1.4.4 Social Utility Theory
• Private property rights are granted because
doing so has social welfare benefits.
• By granting property rights, individuals are
able to derive benefits and the society benefits
as well by putting the property to use.
1.4.5 Personhood Theory
• Property is seen as a crucial ingredient in
making a person whole.
• Property allows man to thrive, to demonstrate
individuality and full self-expression.
1.4.6 Utilitarianism Theory
• Property is created by positive law to achieve
social and economic goals.
• Property helps maximise the overall happiness
or utility of all citizens.
1.4.7 Economic Theory
• Property rights are justified on account of the
need to maximise overall wealth of the society
where wealth is viewed in monetary terms.
• The subject of property has some inherent
value that the law seeks to provide people with
a platform upon to extract. The law provides
for an efficient system for allocation of
resources in a free market based on voluntary
commercial transactions.
1.4.8 Libertarian Theory
• Premised on individual rights and liberties.
• Property rights provide economic power for
citizens to make independent political
decisions. In this way, property rights enhance
democratic self-government.
• Gottfried Dietze observes in Dietze, in
Defense of Property, 49, that:
Property is intimately related to life and freedom. It is a
prerequisite of the freedom to be and to act. It is as old
as life and freedom, and also is important. Property
rights are thus indistinguishable from such rights as
freedom of religion, of speech, of the press, of
assembly and association, freedom from arbitrary
arrest, and so forth. For these rights were not present at
the beginning of life…while men may have been aware
of the value of these rights at a primitive stage of their
development, they did not consider them as immediate
necessities for their existence.
1.4.9 Socialist and Communist Theory
• They argue for equal distribution of resources irrespective of
contribution.
• They argue against private property since creation of such
private rights leads to discrimination and creation of classes:
land owners, tenants, rich-poor.
• They argue for a classless society where ownership is
bestowed upon the state for the benefit of all equally.
• These theories gained momentum following the American and
French Revolutions where peasants revolted against owners of
he means of production.
 2.0.0 Land as Property
2.1.0 Introduction
• Property as a network of legal relationships among a
person (owner), a thing (the item that's the subject of
ownership) and third parties.
• The legal relationships are housed in a bundle of rights that
grants various entitlements to the owner.
• Classification of property into different types based
remedies (real/personal); existential nature of the
property (tangible/intangible); exclusivity of the rights
(private/ public); movability (movable/ immovable
property).
• Discussion on the philosophical basis and justification for
the existence of the concept of property.
 2.2.0 Concept of Property in Land
– Based on the legal theory school of thought that property
is created by law
– Art. 260 of the Constitution define property to include land
as follows:
“property” includes any vested or contingent right to, or
interest in or arising from—
(a) land, or permanent fixtures on, or improvements to,
land;
(b) goods or personal property;
(c) intellectual property; or
(d) money, choses in action or negotiable instruments;
• In article 40, the Constitution protects right to
property as one of the rights and
fundamental freedoms in the bill of rights
thus:
…every person has the right, either individually
or in association with others, to acquire and
own property––
(a) of any description; and
(b) in any part of Kenya.
• The State is prohibited from depriving a
person of his property and parliament is
prohibited from enacting laws allowing for
such deprivation or discrimination
• Where the state seeks to deprive a person of
his property: must be authorised by law; for
public purpose; prompt payment in full of
just compensation; right of access to court
• Protection not limited to people who hold title
to land, can be extended to occupants in good
faith (settlers)
• Inter-linkage with other rights: access to land
is viewed as a basis for enjoyment of other
right like housing, sanitation, food, life
Olga Tellis v. City of Bombay [1985] 2 Supp SCR
51
• Court linked right to life with access to
pavement space for the homeless
• Universal Declaration of Human Rights in art.
17 provide for right to property
• As property, land is considered a very
important form of property and the ultimate
basis for accumulation of other forms of
property.
• In Kenya, land as property has social, cultural,
political and economic significance.
• Illustration:
– Trans-generational ownership in traditional societies-
ancestors, the living and future generations
– establishment of homes;
– holy shrines- Kayas among the Mijikenda;
– burial sites
– Oath-taking
– status in society- land owners, landless, peasants
– Land is a factor of production
– Territorial boundaries- Migingo island disputes;
colonisation
– land clashes;
– special court for land disputes
 2.3.0 Distinguished from other property
• Defies Usus, abusus,fructus concept by the
Romans: cannot be destroyed
• Unlike other forms of property, not within man’s
capacity to manufacture
• As a factor of production, it has significant
political connections; access to resources,
human rights
• Disputes about land are determined by law of situ: EAC
Common Market Protocol- access and use of land is
regulated by national laws and policies (art. 15, Protocol)
 2.4.0 Definition of Land in Kenya
• In art. 260, the constitution defines land as
including—
(a) the surface of the earth and the subsurface rock;
(b) any body of water on or under the surface;
(c) marine waters in the territorial sea and exclusive
economic zone;
(d) natural resources completely contained on or under
the surface; and
(e) the air space above the surface;
• Common law definition of land: cujus est solum ejus
est usque ad coelum et ad inferos (he who owns the
soil, owns it all the way to Heaven [sky] and all the way
to Hell [depths of the earth])- ad coelum principle
• All new legislations enacted following the
promulgation of the constitution on land simply adopt
the definition of land in art. 260: Land Act, Land
Registration Act and Environment and Land Court Act
• This is a departure from position obtaining pre-2010
when there was a multiplicity of legislations on land
some with conflicting definitions of land.
• What makes up the soil or surface of the earth?
– Land Adjudication Act ,Cap 284
“land” includes things growing on land and buildings
and other things permanently affixed to land (section 2)

– Land Consolidation Act, Cap 283

“land” includes land covered with water, any estate or
interest in land other than a charge, all things growing
thereon and buildings and other things permanently
affixed thereto (section 4)
• Trusts of Land Act, Cap 290
– “land” includes land of any tenure, and mines and
minerals, whether or not held apart from the
surface, buildings and other immovable property;
also a rent, easement, right, privilege or benefit in,
over or derived from land, and any estate or
interest in land (section 2)
• Land extends to things permanently attached
to it
– Quidquid plantatur solo, solo cedit
– Includes buildings, plants
– Art 260 of the Constitution defines property to
include: permanent fixtures on, or improvements
to, land
• Fixtures: chattels that become permanently
affixed to land or buildings become part of it.
They pass with the land
• Applicable tests:
– Degree of annexation
– Object/ Purpose of annexation
– Excludes temporary structures
• Degree of annexation
– A chattel only becomes a fixture when it is actually
fastened to land or building
– Chattels lying on land that can be removed
without losing their identity are not fixtures.
• Object of annexation
– Has the annexation been done for the more
convenient use of the chattel or for the more
convenient use of the land?
– The annexation must be for permanent and
beneficial use of the land
• Specialized Engineering Company Ltd v Kenya
Commercial Bank Ltd[1988] eKLR
…the word fixtures is applied to articles of a
personal nature which have been affixed to
land…whatever has been fixed to the freehold
becomes part of it, and is subjected to the
same rights of property as the land itself. But
this presumption may be rebutted by
circumstances showing the intention of the
parties to the contrary, depending on the
degree of annexation…
• Houses without land system
Samuel Njuguna Kimemia v. Rose Mgeni
Mtwana [2012] eKLR

Court stated:
Every judge on his first posting in Mombasa, is instantly
confronted by an unnerving legal situation unknown in all
his years of learning. She or he has been schooled in the
Common Law traditions and land tenure systems that
declared the principle “cujus est solem ejus et usque ad
coelum et ad inferos”. Upon this principle, the country’s
substantive land law and registration systems are
based. The jurist in Mombasa is, however, ambushed by a
land system or phenomenon in the Coast known as:
“Ownership of house without land” Judicial notice has
long been taken of this strange system in the Coast, and
there is substantial case law on it. But scholarship and
legislation have lagged behind.
• Famau Mwenye & 19 others v. Mariam Binti
Said, Malindi H.C.C.C. No. 34 of 2005
Court stated:
The dispute arises from a land tenure unique …
to Mombasa which has baffled scholars,
practitioners and even jurists. 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, cujus est
solum ejus est usque ad coelum
• In Re Estate of the Late M’Marete M’Ntii [2016] eKLR
the court explained the concept of ‘house without rent
as follows:
The concept of house without land is a unique
phenomenon to the Kenyan coast. It is a concept that
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
• Limitations to the ad coelum principle
– Minerals and mineral oils are deemed to be public
land (art. 62(1)(f) of the Constitution)
– Limitations under Land Act, Energy Act and Civil
Aviation Act
• Part X of the Land Act, easements
• Section 4, Energy Act allows for erection of powerlines
• Section 56 of the Civil Aviation Act allows for restriction
on the heights of buildings in areas near airports and
along flight paths.
 2.5.0 Historical Perspectives
• Pre-colonial period
– Communal form of ownership
– Ownership passed from generation to generation
– Access to land was granted on the basis of
membership to a given community, didn’t include
exclusive use
– Some areas were considered common areas eg
watering points, shrines
– Regulated by customs of the various ethnic groups
through traditional leaders
• Colonial Period
– Marked the introduction of Western conception of
property
– There was expropriation of property by the colonial
powers, imposition of English property law and
destruction of African property system
– Prior to arrival of the British, Portuguese and Omani
Arabs had already taken control of the East African
Coast (1895 agreement between the British and the
Sultan of Zanzibar over 10 mile coastal strip).
– In 1895, Britain established the East African
Protectorate
– The declaration of protectorate status however
didn’t confer title to land to the British and this
caused a challenge to Britain’s interests in
alienating land from natives
– In 1897, the Indian Land Acquisition Act was
extended to Kenya so as to justify assertion of title
over Kenya.
– On the basis of the Act, the Commissioner
acquired land in Kenya through a proclamation
appropriating:
…for the public purpose, subject to any rights of
ownership which may be proved to his satisfaction,
all lands on the mainland beyond Mombasa situated
within one mile on either side of the line of the
Uganda railway where finally constructed…
– In 1901, the East African Order-in-Council was
adopted and it defined crown land thus:

All public land within the East African Protectorate which

for the time being are subject to the control of His
Majesty by virtue of any Treaty, Convention or
Agreement, or His Majesty’s Protectorate, and all land s
which have been or may hereafter be acquired by His
Majesty under the Lands Acquisition Act, 1894, or
otherwise howsoever.
– The 1901 Order-in- Council immediately led to
conflicting claims as among the British, Arabs and
indigenous occupants as it extended definition of
crown land to land over which there were previous
claimants.
– Conflicts settled through the 1908 Land Titles
Ordinance. It’s application was limited to the 10 mile
coastal strip. It required anybody making claim to land
to lodge a claim within six months with the Land
Registration Court. Successful applicants were issued
with certificates of ownership
– Predictably, not many locals filed claims with the
Land Registration Court as required for a number
of reasons
• Lack of knowledge about the Ordinance
• Illiteracy and lack of legal representation
• Private ownership was alien to Africans
• Mistrust between the British and the Africans
• Lack of trust in the process of ascertainment of claims
• Time provided for lodging claims, six months was too
short
– Application of the Land Titles Ordinance of 1908
that effectively dispossessed many Africans who
failed to lodge claims as required
– Africans became squatters on land previously
owned by them (land problems at the coast still
persist and can be traced to this Ordinance)
– In 1915, there was adopted the Crown Lands Act
which vested all land in the territory in the Crown.
– All natives thus became tenants of the Crown
– Isaka Wainaina v. Murito [1923] 9 (2) KLR 102
discussed effect of the 1915 Ordinance.
• The plaintiff had claimed ownership of land previously
purchased from the Ndorobo community before
European settlement.
• In rejecting the claim, the court stated:
In my view the effect of the Crown Lands
Ordinance, 1915 and the Kenya (Annexation)
Order-in- Council, 1920 by which no native
private rights were reserved, and the Kenya
Colony Order-in-Council, 1921…is clearly…to
vest land reserved for the use of a native tribe
in the Crown. If that be so then all native
rights in such reserved land, whatever they
were…disappeared and natives in occupation
of such Crown land become tenants at the
will of the Crown…
– Assertion of control over land in the colony paved way
for creation of colonial settlements
– Native reserves were created for indigenous
communities
– Enjoyment of the native reserves by locals was
however subject to the colonial power which
regulated their use and could change their boundaries
– In 1930, the Kenya Land Commission (Carter
Commission) was established to look into the proper
tenure for native reserves among other issues
– The Carter Commission recommended that the
land tenure in native reserves should be based on
the customs of the inhabitants but should
progressively be developed towards private
ownership of land
– Recommendations of the Carter Commission led
to enactment of the Native Lands Trust Ordinance
of 1930 which renamed native reserves as native
lands and removed them from the province of the
Crown lands Act of 1915
– Conditions in the native lands continued to
deteriorate due to overcrowding, soils erosion,
pests and diseases
– Swynnerton Plan and the East African Royal
Commission after reviewing the problems in the
native lands proposed individual land ownership
as the ultimate model for making use of the lands
by natives more efficient
– Based on the report of the East African Royal
Commission, the colonial government enacted
laws for private property ownership and
established modalities to facilitate land
transactions such property
– In effect, the policies of the colonial government
had succeeded in dispossessing the natives of
their land thereby leading to displacements and
landlessness. This led to discontentment which
later fuelled the agitation for independence
• Post-Colonial Period
– Independence government faced with an urgent need
to ensure resettlement of locals
– Independence government chose to retain land
policies as inherited from the colonisers and retained
the private property ownership.
– Influential persons exploited the system to amass
large tracts of land leading to inequalities in land
distibution.
– In 1967, Land(Group Representatives) Act was enaced
to cater for pastoral communities.
– Land ownership in Kenya continues to be a
sensitive matter and has been linked to ethnic
clashes in the early 1990s and in 2007/08
– Historical injustices related to land featured as an
item under agenda 4 by the Kenya National
Dialogue and Reconciliation
– Land was identified as a source of economic,
social, political and environmental problems
• Key Documents on Land Question
– Akiwumi Commission Report, 1992: cause of tribal clashes
– Njonjo Commission Report, 2004: National Land Policy
framework, the constitutional position of land and
formulation of a new institutional framework for land
administration
– Ndungu Commission Report, 2004: Inquiry into the
Illegal/Irregular Allocation of Public Land
– National Land Policy: Sessional Paper No. 3 of 2009
– agenda 4 by the Kenya National Dialogue and
Reconciliation
– TJRC Report, 2013
– The 2010 Constitution sought to address the past
challenges relating to land by introducing a new
system of land administration
– Various laws have now been enacted to regulate
land: Land Act, Land Registration Act, National
Land Commission Act and Community Land Act.
– The new laws sought to cure a historical problem
of the existence of a multiplicity of laws regulating
land in Kenya:
• Two systems of substantive laws: The Indian Transfer of
Property Act of 1882 and the Registered Land Act
• Five systems of registration: Government Land Act;
Registration of Titles Act; Land Titles Act; Registration
of Documents Act; and Registered Land Act
• Three systems of conveyancing: Government Land Act;
Registration of Titles Act; and Land Titles Act
 3.0.0 Sources of Land Law
• 3.1.0 Introduction
• Judicature Act, Cap 8 Laws of Kenya Section
3(1):
The jurisdiction of the High Court, the Court of
Appeal and of all subordinate courts shall be
exercised in conformity with—
• the Constitution;
• subject thereto, all other written laws, including
certain Acts of Parliament of the United Kingdom, listed
in the schedule;
• subject thereto and so far as those written laws do not
extend or apply, the substance of the common law,
the doctrines of equity and the statutes of general
application in force in England on the 12th August,
1897, and the procedure and practice observed in
courts of justice in England at that date
– Proviso: shall apply so far only as the circumstances of Kenya
and its inhabitants permit and subject to such qualifications as
those circumstances may render necessary
• Section 3(2) The High Court, the Court of Appeal and all
subordinate courts shall be guided by African
customary law in civil cases in which one or more of
the parties is subject to it or affected by it, so far as it is
applicable and is not repugnant to justice and morality
or inconsistent with any written law, and shall decide all
such cases according to substantial justice without
undue regard to technicalities of procedure and
without undue delay
• 3.2.0 The Constitution
– Supreme law and any law that’s inconsistent with
it is void (art. 2).
– Bill of rights provide for right to property in art.
40.
– Chapter 5 of the Constitution is dedicated to land
and environment
– Under schedule four of the Constitution, different
aspects of land are shared between national and
county governments
• National Government
–use of international waters and water
resources
–general principles of land planning
–Protection of the environment and natural
resources
• County Governments
– Agriculture
– County planning and development: land survey, mapping,
boundaries
– Implementation of national government’s policies on natural
resources and environmental conservation: soil and water
conservation; forestry; storm water management systems;
water and sanitation services
3.3.0 Written Laws
– Section 3(1) of the Interpretation and General
Provisions Act defines written laws as:
• an Act of Parliament;
• an applied law
• any subsidiary legislation
• any county legislation
 – Act of Parliament
• Under article 116 of the Constitution, an Act of
Parliament is a bill passed by Parliament and
assented to by the President and published in the
Gazette as such.
• Currently the main source of land law and
codifies common law and customary laws
• Land Act (No. 6 of 2012), Land Registration Act
(No. 3 of 2012), National Land Commission Act
(No. 5 of 2012) and Community Land Act (No. 27
of 2016).
– an applied law
• Section 3(1) of the Interpretation and General
Provisions Act define applied law as:
– an Act of the legislature of another country, or an Order in
Council of the United Kingdom or subsidiary legislation made
under any of the foregoing currently in force in Kenya
• E.g Indian Transfer of Property Act (now repealed)
– subsidiary legislation
• Section 3(1) of the Interpretation and General
Provisions Act defines it as ‘any legislative provision
made in exercise of a power in that behalf conferred by
a written law, by way of by-law, notice, order,
proclamation, regulation, rule, rule of court or other
instrument.
 – County legislation:
• Art. 260 of the Constitution defines county
legislation as a law made by a county
government or under authority conferred by a
county Assembly;
3.4.0 Substance of the common law, the doctrines
of equity and the statutes of general application in
force in England on the 12th August, 1897
• Subject to the written laws
• Apply so far as written laws do not extend or
apply
• Apply so far as the circumstances of Kenya and its
inhabitants permit
• Been in force as at the reception date: 12th
August, 1897; when Britain took effective control
of Kenya by establishing a court system
3.5.0 African Customary laws
Section 3(2) of the Judicature Act
…courts shall be guided by African customary law in civil
cases in which one or more of the parties is subject to it
or affected by it, so far as it is applicable and is not
repugnant to justice and morality or inconsistent with
any written law, and shall decide all such cases according
to substantial justice without undue regard to
technicalities of procedure and without undue delay
• Guided by customary laws: compare with
conformity in section 3(1) for other sources
– Guide means to persuade or help one form an
opinion or make a decision
– Conformity means in compliance with
– Subject to written laws
– Section 7(3) of the Magistrates’ Courts Act provides:
A magistrate's court shall have jurisdiction in
proceedings of a civil nature concerning any of the
following matters under African customary law —
(a) land held under customary tenure;
– One or more parties be subject to the law
Virginia Edith Wambui Otieno v. Joash Ochieng Ougo
and Omolo Siranga (SM Otieno Case) (1987)Eklr
The plaintiff, Kikuyu by tribe objected to application
of Luo customs to her
The plaintiff, a Kikuyu by birth, chose to be
married by a man who was not of her tribe. She
knew she was marrying a Luo. He at no
time…renounced his tribe…
• Not repugnant to justice and morality
– Rex v. Amkeyo [1917] 7 E.A.L.R. 14
• A man was charged with the offence of theft
• Wife was the only credible witness.
• He pleaded spousal immunity
• Court declared that the union between Amkeyo and
the wife was not marriage but a form of wife-purchase
• The standard applied was English conception of
marriage
Contrast with SM Otieno case
• Reviewing SM Otieno Case
– Would court arrive to the same conclusion after
the 2010 constitution?
– Art. 27 of the 2010 Constitution
(1)Every person is equal before the law and has the
right to equal protection and equal benefit of the law.
(3) Women and men have the right to equal treatment,
including the right to equal opportunities in political,
economic, cultural and social spheres.
– Art. 43(3) of the Constitution
Parties to a marriage are entitled to equal rights at
the time of the marriage, during the marriage and at
the dissolution of the marriage.
– Section 82(1) of the repealed Constitution
Subject to subjection (4), (5) and (8) no law shall
make any provision that is discriminatory either of
itself or in its effect.”
– Section 82(4) of the repealed Constitution
Subsection (1) shall not apply to any law so far as
that law makes provision (a) ... (b) With respect to
adoption, marriage, divorce, burial, devolution of
property on death or other matters of personal law;
(c) ... (d) ...”
• In the Matter of the Estate of Solomon Ngatia
Kariuki (Deceased) [2008]eKLR

– Attempt to disinherit a woman under Kikuyu

customs because she was married held to be
repugnant
– Court stated:
…the Law of Succession Act …ousted the application
of customary law in inheritance disputes, save for a
few narrowly defined exceptions…To uphold the
protestor’s father’s, brothers’, sisters’, petitioner’s
and objector’s decision to disinherit her merely
because she was married will not only be repugnant
and or repulsive to justice and morality but will also
be tantamount to abrogating the international
instruments on discrimination that Kenya as a
country is a signatory to.
• Inconsistency with written law
In the Matter of the Estate of Solomon Ngatia
Kariuki (Deceased) [2008]eKLR (cited above)
• Recognition of customs
– Constitution
• Art. 61 acknowledges communal land tenure
– Land Act
• Section 5 recognises customary land rights
– Registration of Land Act
• Section 28 recognises customary trusts as
overriding interests that need not be registered
– Community Land Act
• Provides for the recognition, protection,
registration and management and administration
of community land rights
4.0.0 Systems of Land Tenure in Kenya
4.1.0 Introduction
- Land tenure refers to body of rights owned by a
person in a particular piece of land- content of
rights; acquisition of rights; enjoyment of the
rights
- Land tenure helps to determine competing
interests over land in a society
- It refers to the three questions of who owns/what
interest/ which land?
• Who owns
– Is it the state, private persons, associations, communities?
• What interest
– Quantum of entitlement over land as against third parties
– E.g absolute / or limited ownership; primary entitlement
or limitation/ burden on another’s title like charges;
freehold/ leasehold?
• What land
– Quantum of entitlement over land as against third parties
– E.g absolute / or limited ownership; primary entitlement
or limitation/ burden on another’s title like charges;
freehold/ leasehold?
• Land tenure system is traceable to the Norman
conquest of England by King William in 1066.
• Kind William proclaimed all land in England to be
owned by the king and successors to the crown.
• The king had powers to grant land to his subjects
based on their relationship to the king
• The king retained the radical title over land and
the subjects only held various forms of interests
in land known as ‘tenures’
• In the traditional African setting, land was
owned by communities
• Members had right of access and use
• Land was a trans-generational asset: owned
by ancestors, the living and the unborn
• 4.2.0 Types of Tenures
– From ownership perspective, land is divided into
three categories: public land; private land; and
communal land (art. 61 of the constitution)
– From nature of interests’ perspective land is
divided into: freehold; leasehold; easements;
customary land rights [section 5, Land Act; Section
4(3) Community Land Act]
– Prior to the promulgation of the 2010 constitution and
enactment of a new land law regime land in Kenya
was categorised as government land; trust land and
private land
– Government land was held by the government while
trust land was held by local authorities in trust for the
people living within the locality.
– The systems relating to government and private land
were very weak leading to abuse of the trust, land
grabbing, irregular allocations, double allocations and
political interference in land management
• 4.2.1 Public Land
– Defined in art. 62 of the Constitution as
• land held, used or occupied by any State organ
• land transferred to the State by way of sale,
reversion or surrender
• land with no legal owner
• land with no heir
• all minerals and mineral oils
• government forests, game reserves, water
catchment areas, national parks, government
animal sanctuaries, and protected areas
• all roads and thoroughfares
• all rivers, lakes and other water bodies
• the territorial sea, the exclusive economic zone
and the sea bed
• the continental shelf
– Traceable to colonial rule in Kenya when Britain
introduced the Indian Lands Acquisition Act of
1894 in Kenya to provide a legal basis for the
colonial authority to lay claim to land.
– The land that vested in the government was
known as ‘crown land’-became government land
at independence under Government Land Act
– Government land vested in the President who
had the prerogative to make grants and
dispositions at will
– The Commissioner for land managed Government
land on behalf of the President.
– Due to lack of oversight and transparency,
Government land was allocated based on political
influence and with no regard to public interest.
– Many people who were allocated government lands
on conditions e.g. to develop or occupy temporarily
often breached the conditions
– Irregular allocation of government land e.g. forests
became rampant among the political class.
– all land between the high and low water marks;
– any land not classified as private or community land
• New regime
– All public land vests in the government
(county/national) in trust for the people and is
administered by the National Land Commission (art.
62(2) and (3)) or state organ that owns it
– All disposal or utilisation of public land must be done
according to the Constitution or Act of Parliament
(art. 62(4) of the Constitution)
– The National Land Commission is established under
article 67 of the Constitution to manage public land
on behalf of the national and county governments
– It is established as an independent commission under
chapter 15 of the Constitution and its members enjoy
security of tenure
– Section 14(1) of the National Land Commission
required the commission to, within five years of the
commencement of the NLC Act, on its own motion or
on a complaint by the national or a county
government, a community or an individual, review all
grants or dispositions of public land to establish their
propriety or legality.
– The power to review was subject to enactment of a
law to effect this. Re Weston Hotel (NLC Act, sec.
14(1))
– Section 15 of the NLC Act gave the Commission
powers to investigate complaints of historical land
injustices.
– Historical land injustice is defined as a grievance
which”
• was occasioned by a violation of right in land
on the basis of any law, policy, declaration,
administrative practice, treaty or agreement;
• resulted in displacement from their habitual
place of residence;
 • occurred between 15th June 1895 when Kenya
became a protectorate under the British East
African Protectorate and 27th August, 2010 when
the Constitution of Kenya was promulgated;
• has not been sufficiently resolved
– Conditions for admission of a complaint based on
historical injustice:
• it is verifiable that the act complained of resulted
in displacement of the claimant or other form of
historical land injustice;
• the claim has not or is not capable of being
addressed through the ordinary court system
on the basis that (i) the claim contradicts a law
that was in force at the time when the injustice
began; or (ii) the claim is time barred
• the claimant was either a proprietor or
occupant of the land upon which the claim is
based
• it is brought within five years from the date of
commencement of this Act (commencement
May, 2012).
– Claim for historical injustice only valid if it were
occasioned by:
• colonial occupation;
• independence struggle;
• pre-independence treaty or agreement
between a community and the government;
• development-induced displacement for which
no adequate compensation or other form of
remedy was provided, including conversion of
non-public land into public land;
• inequitable land adjudication process or
resettlement scheme;
• politically motivated or conflict based eviction;
• corruption or other form of illegality;
• natural disaster;
– Remedies for Historical injustice
• restitution;
• compensation, if it is impossible to restore the
land;
• resettlement on an alternative land;
• rehabilitation through provision of social
infrastructure;
• affirmative action programmes for marginalized
groups and communities;
• creation of wayleaves and easements;
• order for revocation and reallocation of the
land;
• order for revocation of an official declaration in
respect of any public land and reallocation;
• sale and sharing of the proceeds;
• refund to bona fide third party purchasers after
valuation;
• declaratory and preservation orders including
injunctions
– All remedies granted by the Commission for
historical injustice must be implemented within 3
years
– An amendment in to the NLC Act in 2016 provide
for an automatic amendment of the provision on
historical injustices within 10 years.
• Management and Administration of Public Land
– Covered under parts ii and iii of the Land Act
– The NLC is required to keep information relating to all
public land including: database of all public land;
capacity for use; particulars of all public land
converted to private land; particulars of persons
whose land has been converted to public through
compulsory acquisition or reversion of leasehold;
particulars of community land converted into public
(Land Act, sec. 8)
– The NLC is required to develop guidelines for the
management of public land: must cover
management priorities and operational principles
(Land Act, sec. 10)
– Allocation of public land may be made on a
request to the NLC by the CS or the CEC member
responsible for matters relating to land (Land Act,
sec. 12)
– Allocation may be done by the following methods:
• public auction to the highest bidder at
prevailing market value
• application confined to a targeted group of
persons or groups in order to ameliorate their
disadvantaged position
• public notice of tenders
• public drawing of lots
• public request for proposals
• public exchanges of equal value
– Allocation of public land may not be done in
respect of:
• land that is subject to erosion, floods, earth
slips or water logging
• land within forest and wild life reserves,
mangroves, and wetlands or within the buffer
zones of such reserves or within
environmentally sensitive areas
• land long watersheds, river and stream
catchments, public water reservoirs, lakes,
beaches, fish landing areas riparian and the
territorial sea
• Land reserved for security, education, research
and other strategic public uses
• natural, cultural, and historical features of
exceptional national value
• reserved land
– The NLC on the request of the national or county
government may set aside land for investment on
condition that the investment benefits the local
communities
– NLc may allocate land to a foreign government on
a reciprocal basis and in consultation with the
national and county government for diplomatic
purposes
– Upon expiry, termination or extinction of a lease
granted to a non-citizen, the land shall revert to
the national or county government
– Allotted public land shall not be disposed of
unless it has been developed as per the terms f its
allocation: failure to meet conditions of allotment
lead to automatic reversion to the government
– The law requires the NLC to formulate regulations
for allocation of public land
– Five years to the expiry of a lease term, the NLC
must issue a notice to all persons holding such
land from the government of the impending
expiry of their leases and their pre-emptive rights
to have the lease renewed upon application
– Where no application is made within 1 year o the
notice, the Commission must issue a further
notice in a daily newspaper of nationwide
circulation
– Where the Commission declines to renew a lease,
the former lessee must be given written reasons
– Before allocating public land, the Commission
must issue, publish or send a notice of action, to
the public and interested parties at least thirty
days in advance (Land Act, sec. 14(1))
– The notice issued must include the terms, covenants,
conditions and reservations to which the allocation is
subject and the method of allocation (Land Act, sec. 14(2))
– The notice shall provide a period of fifteen days from the
date of its issuance, within which the public and interested
parties may comment (Land Act, sec.14(3)).
– The notice must specify the place, date, and time of
allocation, the value of the land ad the particulars of each
parcel of land and specify that the terms of allocation shall
be available in the Commission’s offices in Nairobi and the
Commission office nearest the land being proposed for
allocation (Land Act, sec.14(7)).
– Failure to issue the requisite notices can lead to an
order for repeat of the notification procedures or
nullity of the allocation (Land Act, sec.14(8)).
– On the request of the national or a county
government, the Commission may reserve public land
for a specific public purpose e.g. water conservation
(Land Act, sec.15(1)).
– Where such a reservation is made, the land can only
be used for the declared purpose an may be placed
under the management of a statutory body, public
corporation or a public agency (Land Act, sec.15(2)and
16) .
– The Commission may grant a person a licence to
use unalienated public land for a period not
exceeding five years subject to planning principles
as it may prescribe. (Land Act, sec. 17)
– Public land is amenable to registration under
section 3 of the LRA
• 4.2.2 Community Land
– Defined under art. 63(2) of the Constitution as:
• land registered in the name of group
representatives
• land transferred to a specific community
• any other land declared to be community land
by law
• community forests, grazing areas or shrines
• ancestral lands and lands traditionally occupied
by hunter-gatherer communities
• land held as trust land by the county
governments
– Community land vests in communities identified
on the basis of ethnicity, culture or similar
community of interest (art. 63(1), Constitution).
– All unregistered community land is be held in trust
by county governments (art. 63(3), Constitution).
– Community land only be disposed of according to
the law enacted in this regard specifying the
nature and extent of the rights of members of
each community (art. 63(4), Constitution).
• Historical Perspective
– Before colonial rule, land was owned communally
under African customary laws
– Radical title vested in the entire community and
members only had rights to use land
– Land was viewed as a trans-generational asset
– Land rights to use could granted to individuals,
families or clans.
– Some common amenities were exploited on a non-
exclusive basis e.g water point and grazing fields
– In Mulwa Gwanombi v. Alidina Visram [1913] 5KLR
141 the court affirmed the position that an
individual member or a group from an African
community could not dispose of interest in
communal land.
– Upon advent of colonial rule, the British
introduced English conception of property (private
title) but still allowed customary laws to govern
land owned and occupied by Africans.
– The British didn’t do much to develop communal
land tenure and this led to marginalisation of
Africans as they could not properly integrate into
the economy based on communal land ownership
– The British dispossessed the natives of their land
and limited application of communal tenure to
native reserves
– The natives were settled in land that was less
productive
– In 1938, the Native Trust Lands Ordinance was
enacted to convert ‘native reserves’ into ‘native lands’
to be administered by Native Lands Trust Boards
– The boards were however not made up of Africans
and there was poor accountability
– Colonial chiefs were also appointed to hold land as
trustees for natives
– The chiefs were protectors of British interests e.g in
1904 and 1911 Maasai leaders signed an agreement
with the British to confine Maasais to reserves and to
relinquish land to settlers.
– Despite allowing some room for application of
communal land tenure, the colonial government
effectively worked to undermine application of
customary laws
– At independence, the native areas became trust lands
administered by federal units for the benefit of
Africans later, the land vested in county councils.
– Later other laws like the Trust Land Act and Land
(Group Representative) Act were enacted to regulate
communal land ownership. Both the legislations have
been repealed
– Under Land (Group Representative) Act, a
representative was appointed and registered as
the proprietor of communal land to manage on
behalf and with consultation with the relevant
group/tribe
– The Land (Group Representative) Act was used to
create ranches and in some cases group
representatives would unilaterally dispose land
registered under their name leading to conflicts-
illiteracy
– Land that had vested in the county councils was
usually improperly granted to individuals without
regard to the concerned communities.
• New Regime
– In 2016, Parliament enacted the Community Land
Act to give effect to the Constitution on
community land
– Community land may be held as customary land;
freehold land; or leasehold land (sec. 4(3)
Community Land Act).
– All unregistered community land vests in county
governments to hold in trust for communities
(sec. 6(1) Community Land Act).
– Section 7 of the Community Land Act require a
community claiming an interest or right over
community land to be registered
– Once a community land registrar receives an
application for registration of a community, he
shall issue a notice in a newspaper and radio of
nationwide circulation inviting all members of the
community to a public meeting to elect members
of community land management committee (sec.
7(2) Community Land Act).
– The committee is made up of between 7-15
members who would be required to come up with
a register of all communal interest holders (sec.
7(5) Community Land Act)
– The committee is required to come up with a
name for the community, a register of members
and its rules and regulations for registration
purposes (sec. 7(6) Community Land Act).
 – Section 2 of the Community Land Act defines community
as:
…a consciously distinct and organized group of users of
community land who are citizens of Kenya and share any of
the following attributes—
(a) common ancestry;
(b) similar culture or unique mode of livelihood;
(c) socio-economic or other similar common interest;
(d) geographical space;
(e) ecological space; or
(f) ethnicity.
– Under art. 63 of he Constitution a community is to
be on the basis of ethnicity, culture or similar
community of interest.
– Section 2 of the LRA defines “community” as a
clearly defined group of users of land identified on
the basis of ethnicity, culture or similar
community of interest as provided under Article
63(1) of the Constitution, which holds a set of
clearly defined rights and obligations over land
and land-based resources;
– Section 2 of Community Land Act defines
“community of interests" as:
…the possession or enjoyment of common
rights, privileges or interests in land, living in
the same geographical area or having such
apparent association…
– Institutions under Community Land Act
• Registered Community: to be registered with
community land registrar
• Community land register: for each registration unit
• Certificate of title/ lease over community land can be
issued under LRA
• Community land assembly: made up of all adult
members of a registered community-top organ in
decision-making
• Establishment of community land management
committee: daily management of community affairs
– Institutions under Community Land Act
• Registered Community: to be registered with
community land registrar
• Community land register: for each registration unit
• Certificate of title/ lease over community land can be
issued under LRA
• Community land assembly: made up of all adult
members of a registered community-top organ in
decision-making
• Establishment of community land management
committee: daily management of community affairs
• 4.2.3 Private land
– Under art. 64 of the constitution it consists of —
• registered land held by any person under any
freehold tenure;
• land held by any person under leasehold
tenure; and
• any other land declared private land under an
Act of Parliament
– Concept of private ownership was properly
introduced by colonial rule
– Earlier, Arabs had also settled at the coast and
introduced individual land ownership
– Both the Arabs and the British viewed African land
holding system as weak
– In 1897, the East African Land Regulations gave
the Commissioner powers to grant land on a
freehold basis within the Sultan’s dominion.
– In 1902, the Registration of Documents Ordinance
was enacted to facilitate registration of
documents/ deeds.
– The powers of the Commissioner to grant land
were extended beyond the coastal strip to the
interior of the colony through the Land Titles
Ordinance
– The Registration of Titles Ordinance of 1921 was
enacted to facilitate registration of individual titles
to land
– The system introduced in 1921 was based on the
Australian Torrens system where title was
registered was indefeasible other than on the
basis of fraud or misrepresentation to which the
title holder was a party.
– The state also provided indemnity to anyone who
suffered due to inaccuracy in the register
– Despite allowing for operation of communal land
ownership in land occupied by natives, reserves,
the colonial policy was to promote individual land
ownership as the official policy
– Challenges to individual registration: illiteracy led
to dispossessions; existence of multiple registers
under different laws brought about conflicts
– At independence, the Government adopted a
policy of extending credit to Africans to buy land
from white settlers who were leaving
– The main beneficiaries were mainly persons close
to the presidency leading to disproportionate
distribution of land
• New Regime
– Provided for under the LRA
– Registration confers absolute ownership/
leasehold interest depending on nature of interest
(section 24 of the LRA)
• 4.3.0 Conversion of Land (Section 9, Land Act)
– Land may be converted from one category to another
– public land may be converted to private land by
allocation;
– public land may be converted to community land;
– private land may be converted to public land by:
compulsory acquisition; reversion of leasehold
interest to Government after the expiry of a lease;
transfers; and surrender.
– community land may be converted to either private or
public land
5.0.0 Nature of Property Rights in
Land in Kenya
5.1.0 Introduction
- Property viewed as a bundle of rights
- What is the composition of the bundle in Kenya?
- Unlike in civil law jurisdictions where property in land
is viewed as an indivisible dominium, property in
common law jurisdictions is viewed as an estate.
- As an estate ownership of land is viewed as capable of
fragmentation into various entitlements.
- Development of estates as a concept of land
ownership is traceable to the Norman Conquest of
1066 (the military conquest by King William).
– All land in England vested in the king
– The king would grant control over land to his
supporters in return for service to his kingdom
– Service to the king could be provision of safety,
money, agricultural products, labour
– The persons to whom land was granted (known as
tenants-in-chief) would hold the land during their
lifetime and the king would re-grant the rights to
use the land to their heirs upon their demise.
– The tenants-in-chief would also create similar
relationships with persons under them who would
also create further relationships to persons lesser
than them.
– Ownership of land and extent of rights enjoyed
depended on one’s social status e.g. the knights
enjoyed the highest privileges as compared to
peasants.
– During the feudal time, in England, two categories
of land ownership were recognised: free tenures
and unfree tenures
– Fuedal systems of land ownership lost justification
over time due to a number of reasons
• Advancement in war technology made knights
irrelevant (less use of horses for battle)
• Social, political and economic advancements required
reorganisation
– The king started to cease direct control over land
and creation of further interests on land no longer
needed his direct approval as land owners became
free to create and transfer different forms of
interests in land known as estates.
• 5.2.0 Estates in Land
– Freehold estates; and
– Non-freehold estates
• 5.2.1 Freehold estates
– Lasts for an indefinite period of time
– It represented the largest quantum of rights over land
– During feudal times, they could only be granted to
nobles and gentlefolk. Persons closely connected to
the kingdom-socially, economically ad politically
significant people
– Freehold estates were created through elaborate
ceremonies.
– Holders of freehold estates owed feudal duties
– Freehold estates are further divided into: fee
simple; fee tail and life estate
– Fee simple
• Entitles an owner to the use of land over his
lifetime and the lifetime of his heirs; it can be
inherited
• It’s the most comprehensive form of ownership
• Divided into two: absolute and conditional
• Fee simple absolute allows a holder the right to
freely use, sub-divide, lease, charge or transfer;
its for an indefinite duration and may only
terminate where a holder has no heirs
• Fee simple conditional was subject to
restrictions or conditions; it would revert to the
grantor for failure of the conditions; the
conditions could include what the property
could be used for. Example conditions attached
to allocation of land by the state in Kenya-
section 10, LA.
– Fee tail
• Similar to a fee simple save that ownership and
its inheritance is limited ones lineage.
– Life Estate
• Lasts for the lifetime of the holder or the lifetime of the
grantor
 – Kenyan context
• Art. 64(a) of the Constitution recognises freehold
tenure
• It is also known as absolute proprietorship
• Section 5 of the LA and section 4(3)(b) of the
Community Land Act recognise freehold tenure
• Section 2 of the LA defines freehold as
…the unlimited right to use and dispose of land in
perpetuity subject to the rights of others and the
regulatory powers of the national government, county
government and other relevant state organs;
– Interest conferred by registration under the Land
Act (sec. 24)
…the registration of a person as the proprietor of
land shall vest in that person the absolute
ownership of that land together with all rights and
privileges belonging or appurtenant thereto; and
– Under article 65 of the Constitution, Non-kenyan
citizens cannot own land on a freehold basis
• On the effective date of the Constitution, all freehold
interest in land in Kenya held by non-citizens
reverted to the state to be held on behalf of the
people of Kenya and the State shall grant to the
person a ninety-nine year lease (section 8, sixth
schedule)
• 5.2.2. Non-Freehold or leasehold estates
– Entails a right to use another person’s land for
defined period of time.
– It derives from a superior title is subject to
conditions which may include payment of rent
– During the feudal times, they were held by
commoners and were created informally by way
of agreement; their holders owed no feudal
duties.
– Unlike freehold estates, their duration is not
uncertain.
– Leasehold estates are divided into: estate for
years; periodic tenancy; short-term leases; future
leases; tenancy at will; tenancy at sufferance
– Estate for Years: specifies the exact duration of
the tenancy with a termination date (express or
capable of computation); no termination notice is
required;
– Periodic Tenancy: continues for successive
periods till terminated by notice of either party;
notice must specify termination date; can be
created by the parties or by operation of the law
where parties fail to fix the lease period but rent is
payable on a periodical basis; might arise where a
tenancy with a definite term expires but the
tenant continues to occupy premises and pay rent.
– Section 57 of the Land Act provides for periodic
leases:
– Any lease without a specified term and with no
provision for giving of notice to terminate;
– Any lease the term is from week to week, month
to month, year to year or any other periodic basis
to which the rent is payable in relation to
agricultural land, the periodic lease shall be for six
months;
– Any lease where the lessee remains in possession
of land with the consent of the lessor after the
term of the lease has expired, then (all previous
terms shall continue to apply
– Where an owner of land permits the exclusive
occupation of the land by any person at a rent but
without any agreement in writing, that occupation
shall be deemed to constitute a periodic tenancy.
– A periodic tenancy may be terminated by either
party giving notice to the other, the length of
which shall be not less than the period of the
tenancy
– Short-term leases (section 58, Land Act): leases for a
term of two years or less without an option for
renewal
– A short-term lease may be made in writing or orally
and is not registrable
– Future Leases (section 61, Land Act): a lease made for
a term to take effect on a future date which must not
be longer than 21 years from the date of execution of
the lease
– Future leases for a term longer than five years must
be registered to have effect
– Tenancy at will: created when a landlord consents
to the occupation of land by another person
without an agreement as to payment of rent or
duration
– The land owner may evict the lessor at any time
without notice
– Termination is at election of either party and may
be implied where any party engages in conduct
that’s inconsistent with its continuation
– Tenancy at Sufferance: arises where a lessee fails
to vacate the premises upon expiry of a lease
without the consent of the landlord
– Terminates when the lessor evicts the lessees r
when parties enter into an agreement for a term
– Under section 60 of the Land Act, where a lessee
continues occupation without consent of the
lessor upon termination, then all obligations of
the lessee under the lease continue in force until
he vacates.
• Covenants Implied in leases :
– In relation to the lessor (section 65, Land Act):
• grant quiet possession and right to enjoy land
without lessor’s interruption subject to
observance of covenants and conditions of the
lease by the lessee
• not to use adjoining land so as to render the
leased land unfit for purpose
• to keep common areas in a proper state of repair
• to pay all outgoings (utility bills, rates, taxes, dues
etc )in respect of the land unless agreed otherwise
• In relation to dwelling houses, to ensure the
premises are fit for human habitation at the
commencement of the lease
• to make good any damage caused by fire, flood or
explosion (not attributable to the negligence of the
lessee), civil commotion, lightning, storm,
earthquake, volcanic activity or other natural
disasters
– In relation to the lessee (section 66, Land Act):
• to pay rent
• to use the land sustainably and in line with the terms of
the lease
• to yield the premises in the same condition in which
they were at the beginning of the tenancy
• to keep all boundary marks in a state of repair;
• to keep all buildings comprised in the lease in a
reasonable state of repair.
– General Points in Kenyan Context:
• Leasehold interests are recognised under article 64(b)
of the Constitution
• Further recognition in section 5(1)(b) of the Land Act
and section4(3)(c) of the Community Land Act
• Every owner of private land has a right to lease it out
for a definite period of time or for the life of the lessor
or the lessee or for a period which though indefinite,
may be terminated by the lessor or the lessee;
• Non-kenyan citizens may only own land on a leasehold
basis and for periods not exceeding 99 years (art. 65 of
the Constitution)
• All agreements or documents purporting to grant
longer periods are deemed to only grant 99 years
• Leases are registered under section 5 of the LRA
and shall prohibit all dealings inconsistent with the
terms of the lease
• Unless specified by law, registration of leases is not
mandatory
• the registration of a lease vests in the proprietor
the leasehold interest described in the lease –
section 24 LRA
• 5.3.0 Adverse possession
– Refers to use of another persons land in a
continuous, exclusive, hostile, open and notorius
way
– The entry and use must be without the owner’s
consent but with his knowledge.
– Claim of entitlement to land by way of adverse
possession is based on possession as the basis of
property
– Rationale: limitation of old claims, stale evidence;
need to put land to use
– In Kenya, adverse possession is based on section 7
of the Limitation of Actions Act
Section 7. Actions to recover land:
An action may not be brought by any person to
recover land after the end of twelve years from
the date on which the right of action accrued to
him or, if it first accrued to some person through
whom he claims, to that person.
 – When is right deemed to have accrued?
Section 9(1) of the Limitation of Actions Act states
that:
Where the person bringing an action to recover
land, or some person through whom he claims,
has been in possession of the land, and has while
entitled to the land been dispossessed or
discontinued his possession, the right of action
accrues on the date of the dispossession or
discontinuance.
– Effect of section 7 of the Limitation of Action Act is
to divest a proprietor of the power to enforce his
proprietary rights over land
– Adverse possession also has justification under
the principles of equity: ‘delay defeats equity’ and
‘equity aids the vigilant not the indolent’
– A person claiming entitlement to land based on
adverse possession may approach court to
sanction such entitlement and have the land
registered in his name
– Section 38(1) of Limitation of Action s Act:
Registration of title to land or easement
Where a person claims to have become entitled
by adverse possession to land registered under
any of the Acts cited in section 37 of this Act, or
land comprised in a lease registered under any of
those Acts, he may apply to the High Court for an
order that he be registered as the proprietor of
the land or lease in place of the person then
registered as proprietor of the land.
– Conditions for an Adverse Possession Claim
Virginia Wanjiku Mwangi v. David Mwangi Jotham
Kamau [2013]eKLR
– Open and notorious use of the property
• Requires knowledge of the owner: actual or
constructive
• Activities like fencing, posting signage, tilling,
construction of buildings qualify
• Use must be so apparent as to give notice to the
owner that someone could assert an adverse claim
– Continuous use of the property:
• claimant must occupy the land use it as if he is
the true owner for the entire period.
• Use must be uninterrupted by the owner; a
subsequent adverse possessor may build a
claim on his predecessor’ possession.
• Where there is interruption, the accrued time
lapses
– Exclusive use of the Property
• Use by the adverse party must be to the
exclusion of the rightful owner
• An adverse party may only lay claim to the
portion where there has been an exclusive use
• There can arise a joint claim to adverse
possession e.g. squatters
– Actual possession of the property
• Physical use of the land
• Possession must be actual and not merely
constructive
• Depends on nature of the land and the kind of
uses it can be put to
– Non-permissive, hostile or adverse to owner
• Entry must be without permission
• Possession must be adverse to the owner
– Adverse possession may also be used as a basis
for claiming an easement
• Easement refers to a non-possessory interest in
another’s land that allows the holder to use the
land to a particular extent, to require the
proprietor to undertake an act relating to the
land, or to restrict the proprietor’s use to a
particular extent…section 2, Land Act
– How easements are acquired by adverse possession
Section 32(1) Limitation of Actions Act
Where—
(a) the access and use of light or air to and for any building
have been enjoyed with the building as an easement; or
(b) any way or watercourse, or the use of any water, has
been enjoyed as an easement; or
(c) any other easement has been enjoyed, peaceably and
openly as of right, and without interruption, for twenty
years, the right to such access and use of light or air, or
to such way or watercourse or use of water, or to such
other easement, is absolute and indefeasible.
• 5.4.0 Capacity to own land
– Public land: vests in county governments and
national government to be administered by the
National Land Commission
– Community Land: vests in the community. Under
the Community Land Act, there is a requirement
for registration of communities
– Private land: vests in an individual (natural/juristic
persons)
• Corporate entities can only own freehold land if
fully owned by Kenyans; if not then can only
hold leaseholds
• Names of minors may be entered on the
register under a guardian to hold land in trust
for them
• Minors can’t deal with any interest in land in
their own names
• Minors are below 18 years of age.
• 5.5.0 Forms of Co-ownership
– Arises where two or more persons have
simultaneous entitlement to the same property.
– Two major forms: joint tenancy and tenancy in
common
– Join tenancy: each owner/ tenant is vested with the
interest in question as a whole (undivided)
• Upon death of a joint proprietor, the interest in
land devolves to the surviving proprietor (Section
49, Land Act; section 60, Land Registration Act)
– Tenancy in common: proprietorship would be
separate but undivided; each proprietor’s share is
known and declared
• Upon death of a proprietor in common, the
interest of the deceased devolves to his personal
representative (Section 61, Land Registration Act)
 6.0.0 Land Ownership and Human
Rights
• 6.1.0 Land Ownership as a human right
– Art 260 of the Constitution defines property to
include land
– Art 40 of the Constitution provides for the right to
acquire and own property; protects against
arbitrary deprivation
– Landlessness, squatters, inequitable land
distribution
– Tension between adverse possession and
protection of property?
• See Mtwana Lewa v. Kahindi Ngala Mwagandi
[2015]eKLR
• See JA Pye (Oxford)Ltd v. United Kingdom
[2005] 19 BHRC
• 6.2.0 Eviction of Squatters
– How should it be done?
– Are they entitled to any protection under the law?
– See Satrose Ayuma & 11 others v Registered
Trustees of the Kenya Railways Staff Retirement
Benefits Scheme & 3 others
– See provisions on Eviction and Resettlement
Guidelines
– See art. 40(4) of the Constitution
• 6.3.0 Maximum and Minimum Land Holding

Art. 68(c)(i) of the Constitution:

Parliament shall enact legislation to prescribe
minimum and maximum land holding acreages in
respect of private land.
Minimum Land Holding
– Land Act, section 159(1)

Subject to Article 40 of the Constitution the

minimum land holding acreage shall be subject to
the provisions of Article 66(1) of the Constitution
and the legislation envisaged therein.
 – Art. 66 of the Constitution provides that:
(1)The State may regulate the use of any land, or any
interest in or right over any land, in the interest of
defence, public safety, public order, public morality,
public health, or land use planning.

(2)Parliament shall enact legislation ensuring that

investments in property benefit local communities
and their economies.
Maximum Land Holding
– Land Act, section 159(1)

Subject to Article 40 of the Constitution, the

maximum land holding acreage shall be subject to
Article 60( 1) (a) and (c) of the Constitution.
– Art. 60(1)(a) and (c) provide:
Land in Kenya shall be held, used and managed in
a manner that is equitable, efficient, productive
and sustainable, and in accordance with the
following principles—(a)equitable access to
land;… (c)sustainable and productive management
of land resources;
– Section 160 of the Land Act empowers the
Cabinet Secretary to make regulations prescribing
the minimum and maximum land holding
acreages in respect of private land.

– Section 150(2) of the Land Act empowers the

Cabinet Secretary to publish guidelines on the
penalties for noncompliance with the provisions
of the section on minimum and maximum land
holding acreage.
• What measures have been put in place?