THE LAW OF PROPERTY IN LAND (LAW NOTES)

 CHAPTER ONE

1.0         GENESIS AND EVOLUTION OF THE LAW OF PROPERTY IN LAND

 

Resource tenure systems do not exist in a vacuum but are linked to one another in a number of important respects. Moorehead sees them as existing along a continuum from ‘open access’ regimes, where there are no rules of entry to ‘controlled access’ systems, which in its most extreme form consists of private property.[1] The evolution of tenure systems has been as a result of certain forces whether internal or external such as increase in population which resulted in increase in the pressure on natural resources and subsequently land tenure systems evolved from open access regimes, through common property systems, to private property institutions.[2]

 

Accordingly, at the beginning resources were there in plenty. Land was cleared only when it was needed for production mainly as a result of population increase. Populations were low and hence labour was scarce. Land boundaries were unnecessary as there was no need to allocate land among the various owners nor was there need to exclude outsiders. Resources were then the subjects of ‘open access’ regimes.

 

As populations increased and colonial powers divided Africa amongst themselves, a relative scarcity of resources arose. Resources became differentiated by quality and rural communities allocated better resources to themselves and those in poor conditions to outsiders. The unit of production changed from clan to the extended family. At this time land tenure took the characteristics of communal property.

---------------------------------------------------------------------------------------------------------------------  Upon an increase in population; establishment of colonial and post-colonial states; and introduction of a colonial economy, land became privatized as the community was further stratified into small family units as the focal point in production. Land became a commodity, which could be owned and disposed of, and a new class of landless people emerged. Privatization was the norm and the principle of co-ownership by group or clan no longer operated.

 

In Kenya, this pattern of evolution can be clearly traced. According to Kenyatta, [3]resources were managed with the clan as the focal point before the coming of the colonialists. With the coming of the British Administrators, former community property was nationalized under the 1902 and 1915 Crown Lands Ordinances. The new laws destroyed all customary perceptions of tenure and rural communities were even declared tenants at the will of the Crown.[4]   

Further damage was occasioned by the 1955 Swynnerton Plan and the 1956 Native Land Tenure Rules, which introduced registration and privatization of land. In the post-colonial era, former common property resources were nationalized in the pretext of conservation. Communities were excluded from lands with which they had a long association for the creation of parks, reserves and forests. Quite often after the demarcation of these areas, rural communities were required to cease accessing the resources therein and look for alternative means of earning their livelihood. Legal and policy instruments have continued to make it difficult, if not impossible, for communities to participate in the management of resources, which are customarily theirs.

 

The Law of Property in land therefore, emerged not at the heels of the emergence of civil society. On the contrary, the emergence of civil society was, according to one author, precipitated by the birth of the concept of property ownership.  He states that;

 

“The first person having enclosed a piece of ground, bethought himself saying “This is mine” and found a people simple enough to believe him, was the real founder of Civil society”.[5]

 

 

In a nutshell, the theory of property in land and the rules of law defining the nature and manner of transacting in property rights attempt to respond to the following questions;

 

i)               What are the foundations of the law of property in land?

 

ii)              What are the jurisprudential questions and concepts underlying the law of property in land?

 

iii)            What are the rights and obligations arising therefrom?

 

iv)             What is the manner of transferring or otherwise dealing/disposing of the said rights?

 

v)              What is the relationship between the state and the individual in relation to (iv) (above) and in relation to rights arising from property generally?

 

1.1         THE CONCEPT OF PROPERTY

 

The concept of “OWNERSHIP” and the concept of property are inextricably intertwined.  According to one author; “… all property arises from ownership”[6]

 

To understand the concept of “ownership”, one must first be conversant with the idea of a “right”.

 

1.2         THE IDEA OF A RIGHT

 

Central to all legal relationships is the idea of rights and duties that flow from them.  In this regard, a vehement author in the Science of jurisprudence has written;

 

“as soon as a legal system arrives at the stage of development when it can yield to juristic analysis, it will be found that the concepts of rights and duties form a pivotal point in the structure of the legal machinery by which the system is enabled to perform its social functions.”[7]

 

The exact nature and content of particular species of rights, whether legal, moral, political or economical etc and the identity of those in whom they vest, will naturally vary from one political economy to another.[8]

 

Thus under capitalism, rights of whatever species are characteristically vested in individuals or nucleated groups since these are the focus of production relations.[9]

 

It is thus to be expected that in community-based societies, the nature of and extent of rights will differ.

 

Further, these will not essentially vest in the collective or corporate whole.

 

The foregoing notwithstanding, the ultimate question “what is a right?” is spiritedly agitating for a response.

 

A right in a nutshell signifies an affirmative claim against another in respect of a given situation, object or thing in which the right-holder has an interest.[10]

 

To Lloyd, the concept of a right is very important in legal systems since by virtue of the right, legal obligations and duties are imposed.

 

The idea of a “right” essentially boils down therefore to a statement about the quantum or range of activities that a given society will permit its members, individually or collectively, either serially or concurrently, to execute.  This is of course, with respect to certain prescribed situations, objects or things.[11]

 

This view is in agreement with the view of rights being defined by rules of law operating in the society.

 

To assert the view that one has a claim (affirmative) over something, necessarily implies that one has power to execute a certain act / function.  Thus, the envisaged situation is that where the right-holder (X) is seised of a right (Y), he can execute a particular thing (Z)

 

Rights are generally divisible.  Thus if it turns out that X can exercise his power as a right-holder to do a particular thing, (Z) then we can say that (Z) is “owned”.  This brings us to the concept of ownership.

 

 

1.3         DEMYSTIFYING THE CONCEPT OF “OWNERSHIP”

 

Much of the available literature dealing with property relations in the pre-colonial period has erroneously characterized land tenure in Africa as being communal in its broadest formulation. According to two authors, R.W. James and G.M. Fimbo, the propagators of this view are;

 

       “… Responsible for the supposition that African Land Tenure is much the same in every part of the continent, i.e. it is communal and an individual only has security of tenure whilst he is using the land.”[12]

 

Although the authors do not refute that communal ownership was prevalent they argue that there were also other forms of ownership existing side by side with communal ownership.

 

Jomo Kenyatta when describing the Gikuyu system of land ownership also opposed this kind of generalization. He says that;

 

“According to Gikuyu law of land tenure, every family unit had a land right of one form or another. While the whole tribe defended collectively the boundary of their territory, every inch of land within it had its owners.”[13]

 

He concludes that the term ‘communal ownership’ has been misused in describing the land as though every member of the community owned the whole of it collectively.

 

Therefore, one ordinarily talks of OWNERSHIP the moment a right-holder’s claim and naturally, power over a thing/object concedes with or amounts to exclusive control of that thing/object/situation.

 

1.4         THE MEANING OF PROPERTY.

 

What can be owned?

 

That which is owned is that which is referred to as property.  Accordingly, property may be defined as jurisdiction coupled with exclusive control.  The quantum of property over which X (the right-holder) may have a right may be reduced to minimum levels.  The power to control does not in itself denote property rights.  What is essential is that this jurisdiction MUST be coupled with exclusive control.

 

In this regard, Honore has written;

 

“The greatest possible interest in a thing which a system of laws recognises………….”

 

Honore simply refers to that situation object or thing loosely as property.[14]

 

However, it is worth noting that such a coincidence is of course, not found in all societies or in respect of all species of rights.

 

Further, property in the sense indicated above is, however, much too wide a concept for the purposes of an incisive study of the law of property in land.

 

To Salmond[15] the term property assumes various postures in meaning, for instance, it subsumes-:

 

a)     All Legal rights; “… a man’s property is all that which is his in Law”[16]

 

b)     Proprietary rather than personal rights (dominium v/s status)

 

c)     Proprietary rights in rem rather than in personam (dominium v/s obligatio)

 

 

NOTE:  as Paton points out, this dichotomy can lead to much confusion[17]

 

 

 

d)     Corporeal rather than incorporeal property (Dominium Corporis v/s Dominium Juris)[18]

 

In this sense, property exists only in things real and tangible.

 

 

It ought to be further noted that Salmond’s fourth category, though too narrow for everyday legal parlance, is closest to what is of primary interest to students of the law of property in land.  Further, it is also worth noting that the foregoing terminology i.e. Dominium/Corporeal and incorporeal, is peculiarly English and is not ventilated/recognized by Kenyan Law which talks of MOVABLES and IMMOVABLES.[19]

 

Both the I.T.P.A and the Interpretation and General Provisions Act[20]define IMMOVABLE property to include;

 

“………….any estate, right, interest or easement in or over any land… and includes a debt secured by mortgage or charge on immovable property.”

 

 

How does property arise?  How is it created?

 

English law takes the view that all forms of property in land are created by the state and the latter by virtue of political sovereignty in the territory.

 

The state is thus said to have the ultimate/radical title and accordingly, the nature of any property that an individual can own is therefore the creation of the state.  This view has been assimilated by Kenyan Law.

 

1.5         THE LAW OF PROPERTY IN LAND; PECULIAR TERMINOLOGY JURIDICALLY DEFINED

 

The Law of property in land frequently employs various terms that are singularly peculiar to it.  For an in depth and incisive understanding of this complex subject, a student is expected to be conversant with this frequently used terminology.

 

a)     Under the Common Law of England

 

Unlike the Roman Law – which recognized a simple indivisible property (i.e. DOMINIUM and IMPERIUM) and for a variety of historical reasons, English Common Law conceived of property as a BUNDLE OF RIGHTS conferring powers on the holders and implying obligations and liabilities upon others.

 

 

i)               OWNERSHIP (Under English Common Law)

 

It merely refers to a higher category of appropriation rights which themselves ultimately flow from a political superior or sovereign.  (Dominium directum vs. Dominium utile)

 

In other words, “Ownership” under English Common Law is merely a form of possession or seisin.

 

 

b)     Under the Indigenous Law

 

Many scholars, especially those trained in Anglo-American jurisprudence, assume, (fallaciously of course), that the vocabulary summarised above is of universal application and can therefore be used to describe and analyse indigenous African property systems and relations.[21]

 

In this regard, Marx Cluckman writes;

 

“…the very refinement of English jurisprudence makes it a better instrument for analysis than are the languages of tribal law…”[22]

 

This assumption has led not only to much distortion in the study of African Law of Property in land, but also to the saturation of the corpus of that law with alien ideas, concepts, cultural trails and ideologies.[23]

 

In analyzing indigenous property systems and relations therefore, a different vocabulary must be employed.  This must be contextual and descriptive and must fully take account of the social and cultural complexities of our predominantly agrarian societies.[24]

 

A set of vocabulary which has been found useful, is one which distinguishes between access to a situation, thing, or object and which is –

 

i)               an incident of membership of society

 

ii)              specific to a function

 

iii)            tied to the performance of reciprocal obligations owed to others and control of the same and which is;

 

a)     An incidence of sovereignty and is therefore vested in the political authority, society or sections of it.

 

b)     Is solely for the purpose of guaranteeing the access of rights of society members and therefore;

 

c)     Entails a power of distribution and redistribution as society adjusts to population pressure and constant claims on scarce resources.[25]

 

Thus, as neither ACCESS nor CONTROL amount to ownership in the sense explained above, the concept of property in indigenous land law cannot refer to that which is exclusively controlled, rather, it refers to the system of values which a community attaches to the use of those resources that are central to its productive forces, the conduct of that use being determined by the principles of ACCESS determined by the collective whole.

 

It follows thus that in indigenous conception, property law refers to that body of rules which defines, regulates and enforces the said principles.[26]  This view is in accord with the views of one author who has observed;

 

“If we fail to recognize that Land use is a function of property rights in land, our cognisance of the truth is deficient by a whole dimension of reality.”[27]

 

The same prolific author has also truthfully noted;

 

“Property rights in land or rights analogous to them are in the last analysis, the only power by which men can execute positive plans for the use of land and natural resources.”[28]

 

 

 

 

 

 

 

CHAPTER TWO

 

 

2.0         THE FOUNDATIONS OF THE LAW OF PROPERTY IN LAND – IN KENYA

 

The Law of property in land is pre-occupied with the nature and the content of the rules that confer rights of property over or access to land itself whether they flow from statutory or non-statutory arrangements. Accordingly, the purpose of this chapter is to concretely establish the foundation of this crucial branch of the law in Kenya.

 

2.1         THE COLONIAL FACTOR IN THE EVOLUTION OF KENYAN LAW OF

PROPERTY IN LAND

 

It would be impossible to understand contemporary land law without first appreciating the origin, nature and concerns of colonialism in Kenya.

 

By altering indigenous production systems and institutions, colonialism paved the way for the penetration of alien norms and institutions and their subsequent entrenchment in contemporary political economic life.[29]

 

2.2   COLONISATION; ORIGINS THEREOF

 

To Mungeam, colonial occupation of East Africa was a function of international diplomacy.[30]  His emphasis was the strategic significance of the opening of the Suez Canal in 1869, and as a function thereof, of the Nile and Uganda.

 

Mungeam further explained the failure of I.B.E.A (Imperial British East Africa Co. Ltd) in terms of the supposed economic barrenness of East Africa.  He also assigned the subsequent growth of settler economy to administrative imperativeness such as the cost of the railway and defence expenditure arising from punitive raids against the Somali.

 

Okoth-Ogendo, a vehement scholar, correctly observes that Mungean’s thesis obscures the nature of imperialism in general and the economic concerns of colonialism – particularly in East Africa.[31]

 

At the initial stages during the onset of the subjection of East Africa to foreign rule, the colonial government needed to;

 

i)               obtain formal jurisdiction

 

ii)              discover agents of/for economic development of the colony.

i)               Assumption of Jurisdiction

 

This was achieved politically by the declaration of protectorate status over Kenya in 1895.

 

However, because of an opinion given by the law officers of the British Crown in 1833 in respect of the IONIAN Islands, the protectorate status did not confer radical title to the land in Kenya/E.A generally.

 

As a consequence thereof, land rights/rights in land could only be acquired vide;

 

-        Conquest

-        Agreement

-        Treaty

-        Sale

 

Some of these methods were only possible within the 10-mile strip at the Coast, which was then under the jurisdiction of the Zanzibar Sultanate.

 

In addition, the Administration Agreement between the Imperial British East Africa Company (IBEACo.) and the British Government had (in 1895) transferred to the latter control over all rights in land ceded to the former by virtue of a concession agreement, which the sultan had signed in 1898.

 

The colonial government inevitably suffered numerous disabilities arising as a consequence of protectorate status. These led to a major revision in imperial jurisprudence.  For instance;

 

i)               The Indian Lands Acquisition Act of 1894 was extended in 1896 to the sultan’s dominions under section 8 of the 1884 Zanzibar Order in Council.  This was done with a view to enable the colonial government to acquire land for public purposes.

 

ii)              The same was later extended beyond the sultan’s dominions in 1897 even though there was no juridical basis for the second extension.

 

iii)            Ultimately, the law officers of the crown explained in 1899 that their 1833 opinion applied only to protectorates “with a settled form of government”.  In the case of the East Africa protectorate, the law officers argued that the Foreign Jurisdiction’s Act of 1890 gave the Crown the power of acquisition and disposition over “waste and unoccupied land”.

 

This revision was duly incorporated in the East Africa (Lands) Order in Council of 1901 and subsequently, the Crown Lands Ordinance (1902).

 

The main object of the C.L.O. (Crown Lands Ordinance) of 1902 (subsequently re-enacted in 1915) was to facilitate the alienation of Crown Lands.  These had been defined the year before its enactment as follows: -

 

“….all public land subject to the control of his majesty.”[32]

 

ii)              Acquisition of Land for Private Use

 

To attract private developers, it was necessary to guarantee ownership of land particularly beyond the 10-mile Coastal strip.  This was for a long time juridically impossible.

 

A set of regulations modeled after the IBEA’S 1894 Land Regulations were promulgated in 1897 under the Zanzibar Order-in-Council for the “peace order and good governance in Kenya”.

 

The regulations, which were produced, gave power to sell freeholds within the sultan’s dominions only.  Elsewhere only certificates of occupancy were available.  Initially, these were for 21 years and later for 99 years.  The settlers, as can be expected, were not satisfied with this state of affairs.  They (some) took to resorting to unorthodox means of acquiring land i.e. by purchasing it from the local people.[33]

 

However, the revised 1899 opinion together with subsequent legislative developments solved the problems of acquisition since the 1902 Crown Land Ordinance gave the commissioner power to sell freeholds in the protectorate.

 

For instance, under the 1897 Land Regulations, the commissioner had power to grant to any person a certificate authorizing him to occupy and hold the portion of land described therein for a period not exceeding 99 years.

 

This was the case during the early stages.  By the 1915 Crown Lands Ordinance, the commissioner for lands had power to grant 999 years leases in respect of agricultural land.  This was done at nominal rents to settlers.

 

Similarly, the commissioner had power to lease land within townships for 99 years again at nominal rents.  Further, the ordinance also empowered the commissioner to convert 999 years leases into freeholds.[34]

 

 

2.3   THE BASIS OF OUR CURRENT LAW OF PROPERTY IN LAND

 

The Judicature Act, (Cap 8 of the Laws of Kenya), section 3 thereof, valiantly lists the sources of law in Kenya.

 

These sources may, in a nutshell, be listed as follows:

 

i)               The constitution of Kenya

 

ii)              Legislation which includes;

 

 

a)     Acts of the Kenyan Parliament

 

b)     Specific Acts of the Parliament of the United Kingdom cited in the schedule to the Judicature Act and the Law of Contract Act.[35]

 

c)     One Act of the parliament of India

 

d)     English statues of General Application in force in England as at 12^th August 1897

 

iii)            Subsidiary legislation

 

iv)             The substance of English common law, the Doctrines of Equity and Statutes of General Application in force in England on the 12^th August 1897.  “These are to apply in so far as the circumstances render necessary.

 

v)              African customary law in civil cases in which one or more of the parties are 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.

 

From this checklist, it may correctly be observed that in Kenya, legal rules pertaining to the law of property in land may be sourced from;

 

a)       The constitution of Kenya; particularly section 75 of the Bill of Rights, which enshrines the right to property.

 

b)       Legislation:  It is worth noting that our parliament has enacted numerous statues pertaining to or touching on the law of property in land.

 

c)       English common law and the doctrines of equity (qualified accordingly).

 

d)       Subsidiary legislation i.e. that made under Cap 265 (Local Government Act) or even under Cap 266 (the Valuation for Rating Act).

e)       Customary Law (to an extent)

 

However, the primary source of the Law of property in land (in Kenya) is legislation, the substance of English common law and naturally, the doctrines of equity.

 

A further source, though not loudly acknowledged, is of course judge made law.

 

 

2.4   LEGISLATION AS A SOURCE OF KENYAN LAW OF PROPERTY IN LAND A BRIEF OVER-VIEW

 

a)     The Land Titles Act[36]

 

The year 1908 saw to the passing of the Land Titles Act (L.T.A.) by the colonial legislature.  This was done principally to facilitate the alienation of crown land at the coast.

 

The precise background to the enactment of the L.T.A. lies in the fact that the Sultan of Zanzibar owned the 10 miles coastal strip (formerly the protectorate of Kenya) but subject to the rights of the inhabitants who comprised mainly of Arabs settlers –whose settlement commenced long before the Europeans came to Kenya.  This strip was leased by the Sultan of Zanzibar to the Colonial Government subject to the said rights.

 

To enable alienation of crown land on this strip, it was necessary to distinguish between private land and crown land.

 

Successful claimants were issued with Certificates of Ownership giving freehold title or certificates of Mortgage or Interest covering leaseholds depending upon the nature of title adjudicated.[37]

 

The term “Recorder of Titles” was borrowed from Tasmania (Australia) and the procedure of adjudicating private claims to land was copied from an Act in Ceylon.

 

Any plot, which was not successfully claimed, vested in the colonial Government and upon independence, in the Kenya Government.

 

b)     The Registration of Titles Act (R.T.A) [38]

 

This Act was introduced in 1920, whereupon all new successfully claimed plots were registered under it.

Principally, this Act was enacted with the object of improving the issuance of titles to land as well as transactions in the same.  Largely, this was for the benefit of settlers/whites.

 

The Act, apart from introducing a form of title registration based on the Australian Torrens system of title registration, also introduced   conveyancing by statutory form.[39]

 

Lastly, it ought to be noted that the R.T.A. was modelled on the Registration of Title Enactment of the Federal Republic of Malaya and the Transfer of Land Act, 1890 of Victoria.  It relates to all land granted by the Government or the subject of the Certificates of Ownership/Mortgage/Interest issued by the Recorder of Titles under the L.T.A.   Further, it also applies to all leaseholds, which have been converted from terms of 99 years to 999 years since 1920, or to freeholds and titles converted on a voluntary basis from the G.L.A.[40] or L.T.A. registration to R.T.A. tiles.

 

c)     The Government Lands Act[41]

 

It is a replacement of the Crown Lands Ordinance (1915).  It was enacted to make further and better provisions for regulating the leasing and other disposal of Government land and other purposes including transactions relating to Government land.

It abolished the compulsory registration required under the R.D.A[42] of transactions relating to unalienated government land.

 

Basically, the G.L.A. governs all freehold or leasehold land granted by the Government prior to 1920, with the exception of leaseholds converted to 999 years or to freeholds under the R.T.A.

 

The L.T.A. and the previous statutes were basically registration statutes/Acts.  At the time of their enactment, there was no general substantive law or system of conveyancing.  In the Coastal area, dealings in land were effected mainly in accordance with Muslim Law and for the rest of the country according to the customary practices of the various tribes.  Naturally, these personal laws could not be applicable to the circumstances of the European settlers.  Accordingly, the Indian Transfer of Property Act (1882) (I.T.P.A.) was applied in Kenya as a substantive law.[43]

 

Upto date, the I.T.P.A. is still the main substantive law governing transactions in property rights or (rights of property in land) concluded under the L.T.A., G.L.A. and R.T.A.  It is neither a registration nor a conveyancing statute.

 

 

d)     The Registered Land Act[44]

 

Background; The Law of Native Reserves

 

In the Native Reserves (special areas) which later became known as Trust Land under the Native Lands Trust Ordinance, (1930) and subsequent Acts related thereto, customary land law applied.  This ordinance was enacted after the Africans had demanded the return of their land and expressed their insecurity with regard to the land they then occupied.  This statute was interpreted by colonial courts as giving Africans/natives occupying the reserves, land rights or perpetual possession, subject to the power of the Governor to expropriate land for public purposes.

 

It was also said that this right (of perpetual possession) prevailed as against the crown or any other person not belonging to the affected tribe. This was enumerated in;

 

Stanley Kahahu vs. the AG[45]

 

Where the question for determination was whether natives have any rights and if so, what rights in land in Native Reserves.

 

Held;

 

It was held that members of a native tribe for whom land has been reserved by the government under section 2(1) of the natives land trust ordinance have a right of perpetual occupation subject to the power of the Governor to grant land on lease or license under section 8. This right prevails as against the crown and any person not belonging to the particular tribe.

 

In Isaka Wainaina wa Gathomo and Anor. Vs. Murito wa indangara and Anor,[46]

 

Sir Jacob Birth C.J, decided that the effect of the Crown Lands Ordinance 1915, the Kenya Annexation Order in Council 1920 and the Kenya Order in Council 1921 was inter alia to vest land reserved for the use of the native tribe in the Crown and in consequence all native rights in such reserved land whatever they were under the githaka system disappeared and natives in occupation of such Crown land became tenants at the will of the Crown.

 

This judgment appears to have overruled the decision of Maxwell J. in

 

Kimani wa Kabato vs.Kioi wa Nagi[47] , which was to the effect that a member of the Kikuyu tribe can acquire and retain tracts of land within the reserve: and that such rights can be enforced by a suit for damages for trespass and/or for an injunction.

 

Sir Jacob Birth’s Judgment was followed by Stephens J. in

 

Douglas Mwangi wa Kamotho and 2 others vs. Chief Mwichuki and the AG[48]

 

This also related to rights of natives in the Kikuyu Native Reserve. Stephens J. held with what he describes as a certain degree of hesitancy that natives had no rights of occupancy in land in the native reserve but that probably they had a limited right to occupancy as against other members of the tribe so long as the tribe was allowed by the Crown to remain on the land.

 

In 1934, Gold was discovered in Kakamega and the natives settled thereabouts evicted forthwith to give way for/to prospectors.[49]  This showed how tenuous the rights of Africans/Natives in land were.  Spirited agitation by the natives for return of their lands gained momentum.  Settlers came to realise that provided the natives were insecure in their own land, the security of the white highlands as a European settlement would always be doubtful.

 

As a consequence, the Kenya Land Commission was set up to advise the government on land policy.[50]

 

This commission completed its report in 1934 and concluded that African had little claim to the Highlands (if any) and further, if there were any claims at all, compensation ought to be paid rather than giving the land to the claimants and even further, that upon such payment, all customary rights should be extinguished forever.

 

It recommended that the settlers’ security of ownership of the white highlands be guaranteed vide an order-in-council.  This was done in 1939 vide the Kenya (Highlands) Order-Council.  As a corollary, the Kenya (Native Areas) order-in-council was also enacted in the same year.  It set up a newly constituted Native Trust Board.[51]  This Board was to hold trust land for the natives.  The same order-in-council redefined Crown Land by amending the definition of “land” in the G.L.A. (1915).[52]

 

In 1938, the Native Lands Trust Ordinance was enacted (on the recommendation of the Cater Commission).  The rules made thereunder, i.e. the Native Land Tenure Rules (1956) provided details of the legal regime for the administration of African Reserves.  Under the said rules, communal/familial ownership (as opposed to individual ownership) was recognised – the latter form of ownership being stranger to customary law.

 

It is worth nothing that the Carter Commission report and its subsequent legislative implementation confirmed the gradual process of creating two distinct reserve systems i.e. one for Africans and the other for Europeans and accordingly, a dual system of land law.  (i.e. English and Customary law).

 

The reserve systems remained until independence when in 1963, the constitution repealed the various Orders-in-Council and vested Trust Lands in the County Council within whose jurisdiction the land was situate for the benefit of persons within those areas.

 

English Law and customary law applied (and most likely still apply) to what was formerly known as Scheduled Areas and the African Reserve or special areas respectively.

 

These two systems of land law will continue to be at par until they are merged and all land in Kenya brought under the R.L.A.

 

The Need to Recognize Individual Ownership (Of Trust Land)

 

Before the enactment of the R.L.A., attempts had been made towards recognizing the claims of Africans under the customary law, and accordingly, towards the adjudication of such claims and their registration.

 

For instance, in pursuit of such goals, the native Lands Registration Ordinance was passed in 1959.  This was followed by the Land Registration (special areas) Act on the recommendation of a working party established in 1957 to enquire into the possibility of enacting a law or laws for the individualisation of titles in connection with native lands.

 

The L.R. (SA) Act was modelled on the Sudan Settlement and Registration Ordinance of (1952) and the Registration Ordinance (1954) of Tanganyika.  It provided for a system of land consolidation, adjudication, registration and conveyancing.

 

THE R.L.A.(Cap 300)

The R.L.A. was introduced in 1963.  It repealed all the provisions of the LR (SA) Act save the consolidation and adjudication provisions.  Subsequently, the LR (SA) Act was renamed the Land consolidation Act.[53]  In the same year, a new Land Adjudication Act (cap 284) was enacted providing for a system of adjudication of titles to trust land areas were consolidation was not appropriate.

 

 

 

 

 

Salient Features of the R.L.A.

 

Like the RTA, the RLA was/is based on the Australian Torrens system.  It was modelled on over eight different statutes including the Land Registration Ordinance of Tanganyika (1954), the Singapore Land Titles Ordinance (1956) and the LR (SA) Act 1959 of Kenya.

 

It is a self-contained code in that it has its own registration, substantive and conveyancing law.[54]  All other statutes cease to apply upon land once it is brought within the ambit of the Act vide registration.[55]   Where the Act is silent on any point/matter/issue, recourse must be had to English Common Law.[56]

 

One of the objectives of the Act (RLA) when it was enacted was to bring all land in Kenya under its ambit through the process of Conversion and Registration.  Conversion is the process of bringing titles that are already registered under other statutes under the RLA.  Registration on the other hand, is concerned with bringing plots of land originally held under customary law where such claims have been adjudicated and/or consolidated, under a civil recording system.

 

Pursuant to section 2(c) of the Act, the Minister may apply the Act to any area in Kenya.

CHAPTER THREE

 

3.0         LAND AS PROPERTY AND THE LEGAL CONCEPT OF LAND

 

3.1 LAND AS PROPERTY

 

Land cannot be owned only rights over it can be asserted as a claim for property in land.

 

The quantum or bundle of rights that one may hold in land is variable, from person to person and naturally, from jurisdiction to jurisdiction.

 

Under Roman Law for instance, the concern was property (in land) thus, no distinction was particularly attached to ownership.

 

The English Law explanation of property however, is a historic one. Property was deemed “real” if the court would restore to a dispossessed owner the thing itself, the “res”, and not merely give compensation for the loss. Thus, if X forcibly evicted Y from his freehold land, Y could bring a “real” action by which he could obtain an order from the court that X should return the land to him.[57]

 

For curious reasons, English Law divides property into three classes viz;

 

i)               Realty[58] i.e. Hereditaments such as freeholds and mortgages.

           

ii)              Chattels Real[59] i.e. leaseholds

 

iii)            Pure personalty – simply movable property

 

Kenyan Law does not assimilate the position in England fully.  Instead, it employs the concept of MOVABLE and IMMOVABLE property.[60]

 

The terms MOVABLE and IMMOVABLE property are essentially the equivalent of the English concepts of CHATTLES REAL and PURE PERSONALTY.

 

It ought to be noted that the ownership of land (as property) is different from ownership of other properties i.e. MOVABLES.

 

Principally, this distinction is due to the unique properties/characteristics of land and its value as a natural resource.  Land, unlike other properties can neither be created nor destroyed by the apparent owner.  Thus, ownership of land must as a natural corollary, be subject to Government control.

 

Kenyan Law lays emphasis on individual ownership of land as contradistinguished with communal ownership.  However, this does not mean that the position of the state as the beneficiary of the RADICAL TITLE to land is watered down.

 

The true position is that though land can be granted to an individual with freehold or absolute proprietorship, this amounts to a little more than that the title-holder does not pay rent annually to the government for the land and that there are no express conditions for its development in the Grant (as in a leasehold) This position notwithstanding, the fact remains that the CORPUS still belongs to the state.  Accordingly, the RADICAL title to all land in Kenya is vested in the President as the embodiment of the state.

 

The foregoing explains the curious conception of land as property. Although, it is capable of being annexed/alienated and made the subject of proprietorship, nevertheless, the proprietor’s user is subject to various qualifications.  For instance, numerous statutes in Kenya limit the powers of a proprietor over his land i.e. freedom of disposition.  These aspects of land as property are discussed ahead in detail.

 

3.2   THE LEGAL CONCEPT OF LAND

 

The legalistic conception of land is rather curious.  For instance, in Kenya, we do have numerous statutory definitions of land.  However, it ought to be noted that each statute attempts to define land for its own limited purposes.  Accordingly, there is no universal legal definition of land in Kenya.

 

3.2.1.     THE LEGALISTIC DEFINITION OF LAND

 

i)               Under the R.L.A. (Cap 300)

 

Section 3 thereof defines land as;

 

“Land includes land covered with water, all things growing on land and buildings and other things permanently affixed to land.”

 

ii)              Under the R.T.A. (Cap 281)

 

Land [is defined to] include land, benefits [derived] therefrom, things embedded or rooted or attached to those embodied thereon for the permanent beneficial enjoyment of that which is so attached to 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 its specifically excluded.[61]

 

iii)            Under Land Consolidation Act (Cap 283)

 

Land is defined to include land covered with water, any estate or interest other than a charge, growing things, permanent fixtures and buildings.[62]

 

iv)             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 land, any privilege, and/or benefit derived from land.

 

v)              Under the Land Acquisition Act (Cap 295)

 

Land includes all land whether covered with water or not.  It also includes things attached to the land or permanently fastened and any estate, term, easement, right or interest in or arising out of land.

 

vi)             Under the Land Planning Act (Cap 303)

 

Section 3 thereof defines land to include land covered with water buildings and other things attached to land and any interest or right or easement in, on or over land.

 

vii)           Under the Limitation of Actions Act (Cap 22)

 

Section 2 thereof 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.

 

It is thus quite explicit that each act defines land specifically to 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.

 

The following Acts also make valiant attempts to define land;

 

i)               Valuation for Rating Act[63]

 

                  “…includes any improvements thereon, therein or thereunder.”

 

ii)              Land Titles Act[64]

 

iii)            Registration of Documents Act[65]

3.2.2.     THE CUJUS MAXIM

 

From the foregoing provisions, it is quite clear that the law accords to land a specified meaning.  Thus land embraces not only the physical surface of the earth, but also buildings, growing trees, grass, water etc.

 

In this connection, the rule is that:-

 

“Whose is the soil, his is also that which is up to sky and down to the depths of the earth”

 

This rule was borrowed by the English from the Romans whose original version read as follows;

 

“Cujus est solum ejus est usque coelum et ad inferos”

 

Its essential elements may be set out as follows:

 

Solum – soil

Coelum – atmosphere

Inferos – geosphere

 

It is thus clear that the general effect of this rule is to horizontally divide land into three entities.  Clearly, it is cruxed on the assumption that land is and ought to be tangible and capable of separation.  This phenomenon (tangibility) was imported into Kenya as part of English Common Law vide the Reception clause set out in section 3 of the judicature Act[66]and before the enactment of the said, Act, vide the East African (Lands) Order-in-Council (1897)[67]

 

However, it must be noted that this maxim assimilates too wide a definition of land.  Accordingly, it had to and was indeed, qualified/narrowed.

 

 

3.2.3      THE TRUNCATION OF THE CUJUS MAXIM

 

The initial ambit/scope of this maxim was understood to mean that whoever owned the soil owned the land both vertically and up to the centre of the earth.  It was in a nutshell, a culture without sophistication and accordingly flawed.

 

3.2.4      FIXTURES

 

In attempting to define the solum, the English developed the maxim;

 

“Quicquid plantatur solo, solo cedit”

 

Translated it read;

 

“Whatever is attached to the soil or annexed thereto becomes part of the soil”

 

Pursuant to this maxim, fixtures were deemed to be part of the land.  Under English Law, a fixture was defined as;

 

“An object attached to realty for the permanent enjoyment thereof.”

 

Such a fixture had to satisfy certain conditions pertaining to:-

 

i)               the nature of the fixture

 

ii)              the degree of annexation to the soil (permanence)

 

iii)            The object/purpose of annexation.

 

This maxim brought a lot of grief to mortgagees and tenants.  This was due to the fact that the mortgagor/landlord, who owned the solum, was entitled to any fixtures the mortgagees/tenants affixed onto his soil since they immediately became part of his (land) soil and could not be removed without his consent.

 

In order to remove this harsh effect (flowing from the cujus maxim) the English commenced scaling down the meaning of land for a more acceptable definition of property in land.

 

The first move was to create exceptions to the doctrine of fixtures.

 

THE EXCEPTIONS

 

i)               Where they were trade fixtures, they could be removed i.e. incase of affixed tools of trade.

ii)              Where they were ornamental, they could similarly be removed

iii)            Domestic fixtures and agricultural fixtures could similarly be removed.

 

 

In Regard of the Atmosphere

 

Under the unqualified Cujus maxim, any projections into the aerospace constituted trespass to land.  In a   bid to solve this problem, the common law introduced the doctrine of REASONABLE USER.  Accordingly, the “ad inferos” became a rebuttable presumption.

 

In Regard of the Geosphere

 

Limitations in respect of this zone pertained to:

 

i)               Mineral

 

ii)              Water

 

Pursuant to the Cujus Maxim (unqualified), all water (underground and surface) and minerals belonged to the owner of the solum

 

The first limitations were in respect of silver and gold.  These were declared to belong to the Queen/King.

 

Then a distinction between water percolating into the ground and water flowing in defined channels but below the surface was made.  The latter was declared not to belong to the owner of the solum.

 

But it ought to be noted that if one sunk a well and appropriated water, then that part became the property of the owner of the solum.  This was held in the case of Bradford Corp. vs. Pickles[68]

 

The concept of land has thus become much more narrower.  However, land can still be construed to refer to the atmosphere, the solum and even the geosphere depending upon the circumstances.

 

 

3.2.5.     JUDICIAL APPLICATION OF THE CUJUS MAXIM

 

In the case of Wandsworth vs. United Tel. Co Ltd[69], it was held that in English common law, land denotes not the physical solum but everything above the surface, below and anything affixed thereon.  Brett, M.R. noted that where a piece of land is granted/conveyed in England, from the king or by a conveyance from party to party under the word land, everything is passed which is below that portion of land down to the centre of the earth and usque ad coelum.

 

 

In respect of limitations imposed on the maxim by English common law, the cases of Smith V City Petroleum Co[70] and Leigh V Taylor[71] are quite illustrative.  In the former, 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 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.

 

In the latter case, the question for determination was whether a chattel which had been affixed onto the freehold with the intention that it ought to become part thereof and accordingly, could pass to the beneficiary as land[72]  The court was categorical in stating that the intention of the parties (in regard of the fixtures) in question was a question of fact in each case.  Thus, tapestries affixed onto the wall of the premises by the tenant were held not to be part of the freehold and could accordingly be removed provided no damage was done to the wall in the process.

 

The general maxim of law as stated in Holland vs. Hodgson[73] is that,

 

What is annexed to the land becomes part of the land, but it is very difficult, if not impossible, to say with precision what constitutes an annexation sufficient for this purpose. That question must depend on the circumstances of each case, and mainly on two circumstances as indicating the intention, namely, the degree of annexation and the object of the annexation. Perhaps the true rule is that articles not otherwise attached to the land than by their own weight are not to be considered as part of the land, e.g. blocks of stone placed one on top of another without any mortar or cement for the purpose of forming a wall. The onus of showing that such articles are intended to be part of the land lies on those who assert that they have ceased to be chattels. On the other hand, an article which is fixed to the land, even slightly, is to be considered as part of the land unless the circumstances are such as to show that it was intended that it should continue to be a chattel e.g. a carpet nailed to the floor of a room, the onus then lying on those who contend that it is a chattel.

 

 

In Bradford Corp V Pickles[74], it was held (in respect of water flowing in a channel) that a landowner’s rights were only USUFRUCTUARY (rights of user only), not ownership and that they were limited by the rights of others.  Accordingly, a landowner does not enjoy property rights in the water flowing in defined channels on his land – only usufructuary rights.

 

In Lemmon V Webb[75] it was held that overhanging branches constituted trespass to land.  However, the court, applying the doctrine of reasonable user probably, stated that such a state of affairs had to be reasonably modified.

 

In Kelsen vs. Imperial Tobacco Co.(of Great Britain and Ireland)Ltd[76]

 

The plaintiff, Joel Kelsen, who was the lessee of a tobacconist shop brought an action against the defendants, Imperial Tobacco Co. Ltd claiming (i) damages for trespass, and (ii) an order that the defendant should forthwith remove an advertisement sign, which had been erected by the defendants on the flank wall of the premises adjoining the plaintiff’s premises in such manner that the sign projected over the plaintiff’s premises, or, alternatively, an injunction restraining the defendants from allowing or permitting the sign to project over the plaintiff’s premises.

 

Held;

 

(i)              The airspace above the shop was part of the premises demised to the plaintiff, since on the true construction of the lease there was nothing to displace the prima facie conclusion that the demise of the premises included the airspace above the shop.

(ii)            The invasion of the plaintiff’s airspace by the sign amounted to a trespass on the part of the defendants, and on the facts of the case, although the injury to the plaintiff’s legal rights was small, he was entitled to a mandatory injunction requiring the defendants to remove the sign.

 

 

Related Issues

 

Devisee(s) and Personal Representatives:  If land is given by will, all fixtures pass under the devise to the beneficiary.  Accordingly, the testators personal representatives are not entitled to remove them for the benefit of the testator’s estate, whether they be ornamental, trade or any kind of fixtures.

 

Vendor and Purchaser:  All fixtures attached to the land at the time of the contract of sale must be left for the purchaser unless otherwise agreed.  Fixtures will be passed to the purchaser unless there is an agreement to the contrary.  However, the conveyance will not pass structures or erections, which are not fixtures.

 

Mortgagor and Mortgagee:  If land is mortgaged, all fixtures on it are included in the mortgage without being specifically mentioned.  The mortgagor is not entitled to remove fixtures he has attached after the date of the mortgage.

 

3.2.5      THE KENYAN EXPERIENCE

 

As already noted, the phenomenon of tangibility has been received into the country.  Initially, the reception was vide the East African Order-In-Council in 1897.[77]  It declared the substance of English Common Law and Doctrines of equity to be a source of law in Kenya.  This formulation has been substantively retained vide section 3 of the judicature Act.[78]

 

Section 3 of the R.L.A.[79] defines land in terms similar to article 11 of the East Africa (Lands) Order-In-Council.  In addition, section 163 thereof states that any gaps in the Act should be filled vide recourse to English Common Law and the doctrines of Equity.  The I.T.P.A. is a codification of common law rules as they were in 1872 in India.  In defining land, we start with the Cujus maxim/doctrine.   BUT we do not stop there.  We do have statutory provisions on the doctrine of solum, fixtures etc.[80]

 

3.2.6.     STATUTORY LIMITATIONS ON THE CUJUS MAXIM

 

There are numerous exceptions to the rule enshrined in the cujus doctrine.  For instance, section 4 of the Mining Act[81]vests minerals in the Government.  The Mineral Oil Act[82] vests mineral oil, including gas, bitumen, etc in the Government.  The Water Act[83] categorically provides in section 3;

 

“The water of every body of water under or upon any land is vested in the Government subject to any rights of user in respect thereof which by or under this Act or any other written law, have been made or are granted or recognized as being vested in any other person”.

 

This Act also makes a distinction between a body of water and any other water.  A body of water is defined to include both surface and underground water.  Thus, there is no distinction between percolating water and surface water except water in a spring situated wholly within the boundaries of land owned by one landlord and which does not naturally discharge into a watercourse extending beyond the said boundaries or abutting on the same.

 

For purposes of the ad inferos doctrine, ground water and surface water belong to the state except in regard of springs.[84]

 

With respect to the coelum, the Civil Aviation Act[85] gives the Minister power to specify the height of any structure within the limits of a gazzetted aerodrome.  Thus, the definition of usable space is limited by factors set out in section 9 of the Act.

 

Under the Kenya Posts and Telecommunications Act[86] section 16 thereof, the said Parastatal is empowered to enter somebody’s land to set up telephone posts/lines.

 

Under the Electrical Supply Lines Act[87]the Kenya Power and Lighting Co. is empowered to enter someone’s land to set up lines.  Similarly, the Way Leaves Act[88] empowers the state to have the right of direction in laying electric lines, underground, cables, flyovers, etc.

 

Finally and pursuant to the Sectional Properties Act,[89] the coelum may be separated from the solum.

 

The common law position has been so extensively limited that land is defined to mean the solum only.  Similarly, in customary law, the solum is the only tenable conception of land as property.

 

JUDICIAL APPLICATION

 

Unfortunately, Kenyan Courts, principally due to absence of litigation have not had an opportunity to lay down the law on the extent of the application of the cujus maxim in Kenya.

 

However, our courts have had an opportunity to render decisions pertaining to the allied doctrine - “quicquid plantatur solo, solo cedit”.  It ought to be noted that the applicability of this maxim is doubtful in Kenya.

 

For instance in Shaw V Shah Devshi & Co.[90] where a number of sisal machines were bolted on to concrete beds in a factory on a sisal plantation which was made of corrugated iron sheeting, it was held that movable property does not become part of the land by reason of only annexation or fixation.  For it to become part of the land, it must be shown that it is affixed onto the land for the permanent and beneficial enjoyment of the land.  Notably, the court further explained that the said maxim had no application in Kenya as the country has its own statutory provisions dealing with the question of fixtures[91]

 

Similarly, in Dharamshi Virji & Another V Abdulrehman & Another,[92] a wood and iron building containing two portions had been standing upon a plinth into which timber was embedded for ten years.  It was held that the building was not part of the land because of its impermanent nature, Vis;

 

The definition of land in the Registration of titles Ordinance of Immovable property in the Transfer of Property Act and the Interpretation and General Clauses Ordinance reveal a prerequisite of “permanency”. The building in question was not of such a permanent nature as to be considered as either part of the land or immovable property.

 

 

Further, in Emmanuel Tadiro V Oseni Ibitoye [93] it was held that if a person erects a building on another’s land, without his knowledge or permission, the building attaches onto the land and the owner of the land is under no obligation to compensate the builder.  The court stated that the principle of quicquid plantatur solo, solo cedit applied to defeat the claim for compensation for cost of erecting the building.

 

However, the position in Kenya on the application of the doctrine of quicquid plantatur solo, solo cedit is not clear.  For instance, it remains blurred whether the holdings in Shaw’s case and Dharamshi’s case were cruxed on the doctrine[94]

 

However, it is quite clear that in both cases, the court combined the definitions of “attached to earth” in the ITPA[95] and “land” in the RTA[96] and “immovable property” in the Interpretation and General Provisions Act[97]to arrive at their decisions.

 

In view of the fact that the RLA[98] unlike the ITPA makes no reference to fixtures as such but defines land as including “other things permanently affixed to land”[99] and as section 163 thereof applies the common law on issues on which it is silent, it can only be argued that the maxim will apply and whatever is affixed/annexed onto land will become part and parcel of it by reference to the degree of annexation and the purpose of the annexation.

 

 

 

 

 

 

 

 

 

CHAPTER FOUR

 

4.0   CLASSIFICATION OF RIGHTS AND INTERESTS IN LAND

 

The classification of rights and interests in land is necessary in order to fathom the tenure and quality of the said interests and rights.

 

At common law, land rights were divided into three categories;

 

i)               Estates

ii)              Servitudes

iii)            Encumbrances[100]

 

4.1 ESTATES

 

These are interests projected on the plane of time so as to be able to be capable of quantification in terms of duration. They are interests in land of some particular duration. An estate must be distinguished from tenure, which is concerned with the quantity of estate.  Tenure as it is, basically refers to a set of conditions upon which an estate or interest in land may be held.  Hence the relevant question is how much and not for how long, the latter being applicable to the estate.

 

Therefore, an estate is the duration of a tenancy in land i.e. the maximum time before which the tenancy must come to an end.

 

Illustration;

 

Instead of being asked “For how long did you grant the land to A?”

B could have been asked, “For what estate did you grant the land to A?”

 

Common law further divides estates into two; viz:

 

i)               Freehold estate[101]

 

ii)              Leasehold estate[102]

 

Freehold estates are further subdivided into;

 

i)               Freeholds of inheritance

 

ii)              Freeholds not of inheritance.

Freeholds of Inheritance

 

These are further classified into;

i)               Fee simple estate

 

ii)              Fee tail estate

 

Freeholds not of inheritance

 

Similarly, these are further classified;

 

i)               Life estates

 

ii)              Estate per autre vie

 

Principally, freeholds of inheritance are those rights in property, which can be passed from one generation to another.

 

The Fee Simple

 

This is the largest quantum of interest that a landowner can have at law.  A conveyance of freehold interest to any person without more passes a fee simple estate unless a contrary intention appears on the conveyance.

 

Where a tenant in fee simple alienated the land, the fee simple would continue as long as there were heirs of the new tenant.

 

It is virtually perpetual and terminates only if the tenant for the time being leaves no heir, when it escheats to the state.

 

Qualifications;

 

1)     If A, the owner of a fee simple estate in land dies, the land devolves to his heirs except where he had transferred the land to somebody else (e.g. by gift or sale) during his life time.

 

2)     If A, left the land by will to somebody other than his heir, then his heir is thereby precluded from inheriting the land. Therefore, the land would only pass to A’s heirs if he dies intestate; or he made a will but died intestate with respect to the land.

 

3)     A’s heirs are to be found among his issues and ancestors. If there is none, then                  the heir is to be sought among collaterals.

 

 

The Fee Tail

 

This gives a person only a life estate followed by successive interests of the issue of the body i.e. his descendants.

 

Tail emanates from the Latin word TALIATUM i.e. to cut down.  Accordingly, if there was/is no tail i.e. no descendant, by operation of the doctrine of escheat, the property estate passes/ is passed to the state.

 

This estate continues for as long as the original tenant or any of his lineal descendants survive. Thus if the original tenant died leaving no relatives except a brother, a fee simple would continue but a fee tail would come to an end.

 

N/B

 

The words “simple” and “tail” distinguishes the classes of heirs who can inherit. A “fee simple” descends to heirs general including collaterals. A “fee tail” descends to heirs special i.e. lineal descendants only.

 

Life Estates

 

These last for the life of the grantee only i.e. the measuring life is that of the tenant e.g. grant to A for life.

 

Estates per autre vie

 

This is an estate, which subsists for the life of another and not that in whom the property rights are/were vested.  Thus if property is vested in A for the life of B, the estate will last for as long as B lives.  But if B dies before A, the property revests in B, the settler.[103]

 

 

Leasehold Interests (Estates)

 

They vary depending on duration/time.

 

i)               Fixed term estate (interests)

 

This is a lease for a fixed period e.g. 99 years.

 

It involves a continuing relationship between the parties to it and is normally subject to various covenants/conditions/terms regulating the rights, duties and obligations of the parties.

 

Both the commencement and the maximum duration of the term must be certain or capable of being rendered certain before the lease takes effect, as was enumerated in Prudential Assurance Co .Ltd vs. London Residuary Body.[104]

 

Hence, the certainty rule distinguishes leases from a fee simple. It avoids the injustice that could arise from the potentially perpetual continuation of a lease that the parties had implicitly intended to be of a short duration.

 

 

ii)              Periodic Tenancy

 

Section 3 of the RLA[105] defines a periodic tenancy as a tenancy from year to year, half year to half year etc.  The Periodic tenancies may also be created from year to year in respect of agricultural or manufacturing tenancies; or month to month with regard to a tenancy for non-agricultural or non-manufacturing purposes[106]

 

The essential feature of a periodic tenancy is the element of continuity.  Whereas a fixed term lease determines automatically upon the expiry of the term prescribed, a periodic tenancy does not come to an end until proper steps have been taken to end it i.e. by giving the requisite notice of termination.[107]

 

The term continues until determined as if both parties made a new agreement at the end of each period for a new term for the ensuing period. The term however, may be extended if no notice is given.

 

iii)            Tenancy at Will

 

This is created by express agreement.  As long as no period is fixed for the tenancy, the tenancy is one at will.  The lessor has the right to evict the tenant from the premises at any time.

 

A tenancy at will is determined expressly by either party at any time.  The strict rules pertaining to notice are not applicable i.e. any conduct on the part of the landlord, which amounts to a demand for possession suffices.

 

Termination of such a tenancy can also be by implication i.e. as in where a landlord does any act which is inconsistent with continuance of the tenancy or vice versa.  Death of either party automatically determines it.

 

iv)             Tenancy at Sufferance

 

A tenancy at sufferance is commonly to be the smallest estate known to the law.  It exists where a tenancy has terminated but the tenant “holds over” i.e. remains in possession without the landlord’s assent or dissent. 

 

A tenant at sufferance differs from a trespasser in that his original entry was lawful and from a tenant at will in that he stays on without the consent of the landlord. Such a tenant is in a position akin to a squatter.

 

 

4.2   SERVITUDES

 

These are rights in alieno solo.[108]  They exist essentially to facilitate the enjoyment of a person’s property by another.  The main classes are;

 

i)               Easements

 

An easement is a right to do something or to prevent something. (Sec 3 RLA)

 

ii)              Profits a prendre

 

This is a right to take something off another person’s land.[109] The thing taken must be either part of the land e.g. minerals or crops, or the wild animals existing on it; and the thing taken must at the time be susceptible to ownership.

 

iii)            Restrictive covenants

 

A restrictive covenant is negative and made for the benefit of land belonging to the covenantee. E.g. Where A, having two adjacent houses, sells one of them to B, and B covenants not to carry on any trade or business in the house he has bought in order to preserve the residential value of A’s other house.

 

 

4.3   ENCUMBRANCES

 

These are also rights in alieno solo.  They are burdens upon land otherwise owned by another.

 

However, it ought to be noted that the burden in question is more economic than proprietary.  The property is made responsible for the performance if certain specific functions.  As long as they exist, they affect or curtail the enjoyment of that property.

 

The main categories of encumbrances are;

 

i)               Mortgages (either legal or equitable)

 

A conveyance of property subject to a right of redemption.

 

ii)              Charges

 

These convey nothing but merely give the chargee certain rights over the property as security for the loan.

 

 

4.4   THE KENYAN POSITION

 

The foregoing classification of rights and interests in property has been imported /into or inherited by Kenya, albeit with a few qualifications i.e.

 

i)               The fee tail estate is not relevant to Kenya.  Accordingly, we only have the fee simple estate.  The fee tail estate disappeared in 1942 when the colonial Government enacted the Trusts of Land Act[110].  This enactment done was with one object – to abolish settlements.

 

A settlement was a devise used in England to tie up land within the family and accordingly, to control property.  After the life estate, there is a remainder, which reverts back to the donor i.e. the fee simple.  For continuity, the donor can transfer the property to another and another and eventually to a tail, which however, will still have a reminder, which will revert to the donor.  This situation was abolished by the Trusts of Lands Act.[111]  This Act defined a settlement as an attempt to create a settlement without exploiting the full estate i.e. the Fee Simple.

 

Under the Act, if a person attempts to do so, whatsoever is done will be converted into a trust for sale.  A settlement will be converted by Cap 290 into a trust.  An equitable interest is an interest that lies behind a trust since it is created from a settlement.  A trustee can always dispose of the settlement subject to the rules of the trust.

 

ii)              The Kenyan position is further made unique by the advent of the Absolute Estate.  This is purely a creature of the R.L.A.[112] Accordingly, the Absolute Estate under the RLA supersedes the fee simple estate existent under the ITPA.  However, it is worth noting that under the ITPA, the fee simple estate remains to be the largest estate.

 

iii)            We still have, (in Kenya) the customary estate (i.e. an estate in Land defined by customary law).

 

CONCLUSION

 

In conclusion, it is worth noting that;

 

-        Classification of property rights and interest under the RLA is substantively similar that which obtains under the ITPA (a part from the absolute estate)

 

-        The obtaining classification in Kenya does not as can be seen from the foregoing, substantively differ from the one obtaining under English Common Law.

CHAPTER FIVE

 

5.0   THE CONTENT OF PROPERTY RIGHTS

 

This is the province of the doctrine of TENURE.  This doctrine is pre-occupied with the quantification of interests in land that one may hold irrespective of their nature.

 

Tenure is essentially the conditions under which one holds an estate/interest in land. It depends on the type of the estate one holds.

 

The doctrine of tenure revolves around the doctrine of the estate.  Upon a de facto basis, the powers thereover will depend not only on the quality but also on the legal context on which the estate has been established.

 

5.1 THE FEE SIMPLE ESTATE

 

Under English Common Law, the fee simple estate is a TENANCY by grant in the sense that all land could only be held under the authority of the King.[113]

 

This estate is called a Fee because that is the modern English term for “FIEF” or “FIDUM”.  A fief is land, which an inferior holds as a tenant of the superior.  The term SIMPLE on the other hand, suffices to indicate the simplicity of its inhabitability by the general heirs .i.e. descendants, ancestors or collateral heirs.

 

5.2   THE KENYAN CASE.

 

All fee simple estates in Kenya, whether by initial grant or by conversion of long leases can be traced ultimately to the Crown Lands Ordinances of 1902, 1915 and the Government Lands Act.[114]

 

Accordingly, their RADICAL titles remain vested in the president.  Thus just as is the position in the United Kingdom, the fee simple phenomenon in Kenya is not an ALLODIUM.[115]

 

According to H.W.O. Okoth Ogendo,[116] the only practical implication of such a conclusion is that where the fee simple cannot pass due to failure of issue, the estate will escheat to the president as the ultimate heir of all property rights in land. This is the effect of Section 8(A) (I) of the GLA[117], which expressly preserves the doctrine[118]

 

The Doctrine of Escheat

 

Escheat is a principle inseparable from tenure, which ensures that land will never be without an owner, for if there is no tenant and no mesne Lord, it will return to the Crown. It takes place automatically and the freehold is extinguished and it applies as much to registered land as it does to unregistered land.[119]

 

5.2.1.     CREATION OF THE FEE SIMPLE ESTATE

 

In Kenya, the fee simple estate is created mainly by way of;

 

i)               A grant

 

ii)              An inter-vivos or testamentary transfer

 

iii)            Enfranchisement (enlargement) in the case of Agricultural Land pursuant to section 28(d) of the G.L.A

 

 

Exposition

 

a)     GRANT – self-explanatory.  As noted above, a grant may be inter-vivos, testamentary or even statutory.

 

i)               STATUTORY GRANT

 

As already noted, all fee simple estates in Kenya emanate/originate by grant under the G.L.A. or Legislation preceding it.[120]

 

Section 8(A) (i) of the G.L.A. empowers the president to make grants or dispositions of any estate, interest or rights on/over any unalienated government land,[121]

 

In addition to outright fee simple grants, a good number of the 999 years leases that were granted under the 1915 Crown Lands Ordinance were after independence converted to fee simple estates under the Conversion of Leases Regulations and Rules.[122]

 

Procedure of Conversion

 

Pursuant to the said rules and regulations, any settler who had;

i)               a 999 years (or 99 years in the process of conversion to a 999 years) lease and,

 

ii)              complied with all the terms and conditions of the original grant;

     

 Could convert it to a fee simple subject to the following conditions;

 

a)     That he pays a capital sum equal to 18 times the annual rent payable in 1961 if he held a 999 years lease or 18% of the unimproved value of the land in 1960 if he held a 99 years lease.

 

b)     That he used the land for agricultural purposes only.

 

ii)              INTER VIVOS GRANT

 

Pursuant to section 8 of the ITPA, there is no need to use special words where a grant of fee simple estate is made inter vivos. (By deed)

 

Section 8 reads:

“Unless a contrary intention is expressly or necessarily implied, a transfer of property passes forthwith…all interests which the transferor is capable of passing and the legal incidents thereof”.

 

iii)            TESTAMENTARY GRANT

 

The ITPA trods/follows the path of common law with respect to testamentary grants.  The intention of the testator reigns supreme with respect to such grants[123]i.e. where a testator intends that a duly executed instrument shall not take effect until after his death and it’s dependent upon his death for its effect.

 

b) ENFRANCHISEMENT

 

This method is only applicable with respect to Agricultural leases.

 

Pursuant to section 27(1) (c) of Cap 280 (GLA) every agricultural lease contains an option whereby the lessee upon the expiration of the term and on due compliance with the covenants and conditions of the lease,

 

“… Shall be entitled to a grant of freehold … on payment to the government of the unimproved value of the Land at commencement of the term”.[124]

 

 

5.2.2      THE CONTENT OF THE FEE SIMPLE ESTATE

 

In content, the fee simple estate is said to be unlimited in scope.  This essentially means that the holder thereof enjoys unlimited powers of abuse, use, and disposition.

 

One author has written as follows with respect to the content of the fee simple estate;

 

“……. A freehold estate confers and since the beginning of legal history it has always conferred the lawful right to exercise over, upon and in respect of the land every act of ownership which can enter into the imagination including the right to commit unlimited waste”.[125]

 

 

i)               The Power of Use

 

It is alleged that this power is unlimited because any condition in the grant prescribing the manner in which fee simple owner must use the land is void.[126]  The general principle is that a fee simple owner cannot have his ownership/user thereof limited.

 

However, there are various limitations.  The history of land law is chequered/witnessed by struggles concerned with such limitations.  Thus through the doctrine of nuisance, it was felt that even the fee simple holder had to be limited in order to facilitate the protection of enjoyment of property rights.

 

In this regard, common law intervened by imposing limitations/qualifications, which were of non-ownership character.

 

This was done especially vide planning legislation which although violently resisted initially, became accepted as a legitimate area of state intervention.

 

Section 11 of the ITPA imports this position (of unlimited power of use) but subject to planing legislation.[127]

 

 

ii)              The Power of Abuse

 

This power, it is alleged, allows a fee simple holder not to be implacable for waste.

 

Common Law has for a long time regarded waste as “any act which alters the nature of the land whether for better or for worse”.

 

The latter aspect is our concern.

Waste falls into four main categories;

 

a)     Ameliorating waste:  These are alterations that improve the character of the Land i.e. what landowners do to improve their lands.

 

b)     Permissive waste:  These are acts of omission to the detriment of the land e.g. Non repair of buildings

 

c)     Voluntary waste:  These are acts of commission to the detriment of the land.

 

d)     Equitable waste:  Occurrences by acts of wanton destruction, which a prudent owner would not do in the management of his property.

 

 

 (iii)       Statutory Qualifications to Freedom of use and abuse

 

Apart from the common law qualifications to the right of a fee simple holder to use and abuse his land, there are numerous qualifications imposed by statutes in Kenya in the same regard.

 

a)  Under the Public Health Act[128]

 

Section 115 thereof provides;

 

“No person shall cause a nuisance or shall suffer to exist on any land or premises owned or occupied by him or of which he is in charge any nuisance or other condition liable to be injurious or dangerous to health”.

 

The purport of this section is to prevent injury to health.

 

Section 118 of the same act defines what constitutes a nuisance. 

 

“It includes any animals or things so kept on the land as to be dangerous or injurious to health, dwellings or premises so decayed or so dirty or in such a condition as to be liable to favour the spread of any infectious disease, anything on the land including accumulation or deposits or refuse, manure, or other matter whatsoever which is offensive or which is injurious or dangerous to health; any dwelling or premises in such a state or condition and any building so constructed as to be likely to harbour rats, any premises which is so over-crowded as to be injurious to the health of the occupiers etc.”[129]

 

 

b)  Under the Local Government Act[130]

 

Section 201 thereof empowers Local authorities to make up laws for the purposes of carrying out any of their functions.

 

 Section 147 thereof empowers the L.A to control the cutting of timber and destruction of trees and shrubs, to prohibit the wasteful destruction of trees/shrubs and to require the planting of trees.

 

These provisions no doubt limit the power to commit voluntary waste.

 

c)  The Land Planning Act[131]

 

This Act deals with the control of Land development in urban areas.

 

Section 10 thereof prohibits the carrying of any development on any land in any area to which the Act applies by any person without the consent of the local authority set up under the Act.

 

 Section 3 thereof defines development to include;

 

-        The erection of buildings

-        The making of any material changes in the use of any buildings or land

-        The sub-divisions of any land and the displaying of any advertisements.

 

The planning authority is empowered upon service of notice to take steps to stop, alter as necessary or demolish any unauthorised development.[132]

 

A fee simple owner may suffer paying a Kshs.5, 000/= fine (maximum) or even imprisonment for undertaking any unauthorised development – provided his land falls within the ambit of the Act.[133]

 

Further, the Registrar of Titles cannot register any document relating to a transaction requiring planning consent under the Act until the appropriate consent has been obtained.[134]

 

d) Under the Agriculture Act[135]

 

The minister of agriculture is conferred extremely wide powers in connection with preservation, development and management of agricultural land. He is for instance, empowered to make

 

i)               Land preservation orders[136]

ii)              Land development orders[137]

iii)            Land management orders[138]

 

e)  Under the Grass Fires Act[139]

 

Pursuant to section 4(1) thereof, any person who wishes to burn vegetation upon his own land must give at least two days notice in writing of his intention to do so to all owners/occupiers of adjoining land which is within half a mile of his land.

 

On the whole, under this Act, an owner of land has the right to abuse his land by burning vegetation on it (voluntary waste) subject to the notice requirements and subject to section 5 thereof.

 

 

iv)             The Power of Disposition

 

Under English common law, a fee simple owner could by deed or by will, dispose/alienate his interest wholly or partially or absolutely or even conditionally.  Accordingly, this power was also unlimited/unrestricted. Further, any purported restriction of this power was said to be repugnant and void as a consequence.

 

Curiously, the ITPA attempts to reproduce this scenario/position.  Section 10 thereof declares any restraints to this power void.[140]

The unlimited/unrestricted power of disposition is extensively qualified in Kenya by various statutory provisions – for various reasons.

 

i)  Under the Land Control Act[141]

 

Pursuant to its provisions, before any dealing in agricultural land (subject to few exceptions) can be effectively concluded, consent from the appropriate Land Control Board has to be obtained.

Section 6 (1) provides in part;

 

        “. …Each of these transactions……….is void for all purposes unless the Land Control Board for the land control area in the division in which the land is situated has given its consent in respect of that transaction in accordance with this Act.”

 

A case in point is Nelson Githinji et al vs. Munene Irangi[142] where the court of appeal categorically stated that the effect of section 6(1) of the Act was to render null and void any transaction, sale, transfer or other disposition or dealing in agricultural land situate in a land control area without a Land Board Consent.

 

Facts

 

The suit land was agricultural land, but the consent of the Land Board was not obtained. There was supposedly an arbitration, which recommended that the superior court should order the appellant to transfer the suit land to the respondent without delay. On appeal;

 

Held

 

The transaction for which the respondent sought specific performance required the consent of the relevant Land Control Board. This was a legal requirement. The effect of the arbitrator’s award was to grant the respondent the specific performance he sought. If no consent of the relevant Land Control Board was obtained, then that award was illegal.

 

 

ii)  Under the RLA[143] and RTA[144]

 

The qualifications exist in the colour of

 

i)               Cautions (RLA)[145] and caveats (RTA)[146]

ii)              Inhibitions (RLA) and Prohibitions

iii)            Restrictions (RLA & RTA)

 

These are essentially restraints, which can be registered against a title to land (a fee simple estate). Once registered, they prevent the owner from disposing of the land.

 

 

 

 

 

 

Caution

 

Any person claiming a contractual or other right in land amounting to a defined interest capable of creation by a registrable instrument i.e. a lease, may lodge a caution with the Registrar against any dealing which is consistent with his interest.  No entry of a transaction with respect to such land may be made unless the cautioner has received notice.

 

A caveat/caution may be removed by the person lodging it or by the Registrar if such a person fails to remove it after being served with a notice to do so by the Registrar.

 

Inhibition[147]

 

This is RLA terminology.  The word prohibition is used under other Acts.

 

An inhibition is a court order preventing for a time or until some further court order or occurrence of some event, the registration of any dealing in the land.  Such may be made upon the application of any interested party i.e. where the land title deed has been stolen.

 

Restriction[148]

 

This is imposed by the Registrar, either on his own motion (Suo moto) or upon application by any interested party.  Such may be imposed with a view to prevent fraud, or improper dealings in the land or for a sufficient cause.

 

 

5.2.3      DURATION OF THE FEE SIMPLE ESTATE

 

This is unlimited.  Accordingly, it can pass to both lineal and collateral descendants of the holder.

 

 

CONCLUSION

 

The phenomenon of the fee simple estate is only known to Kenyan Law vide the Indian Transfer of Property Act, 1882.

 

However, provided a freehold title can be traced to;

 

a)     The Crown Land Ordinance (1902)

 

b)     The adjudication of Title under the Land Title Ordinance (1908) (currently the LTA Cap 282)

c)     The Conversion of Leases Regulations and Rules Nos. 631 and 632 of 1960 respectively

 

d)     Presidential grants made after 1965 under cap 280 (GLA) and provided that in none of these cases, the land has been converted to Cap 300 (RLA) registration.

 

 

5.3       THE ABSOLUTE ESTATE

 

The absolute estate presents a rather difficult concept that needs an incisive analysis.  Upto the 1950(s), the colonial government only operated on the assumption that Africans did not need secured interests in land since they would only abuse the fee simple.  Thus, they were left to decay in the native reserves.

 

This tragic state of affairs was fortunately revised in 1954 when the Swynnerton plan was authored.  Its purport was to intensify African agriculture.  It advanced the view that African agriculture stagnated due to African land ownership systems, which did not auger well with good management of property.  It advocated for reform of land tenure.  It further recommended for the registration of all property in the African areas.  This was to be done vide;

 

i)               Consolidation, followed by;

 

ii)              Registration of interests and where needed

 

iii)            Adjudication of the same, followed of course, by registration.

 

This commenced in the central province and upto date it is still going on.  Upon registration, the rights which a registered proprietor would have were described as absolute estate and not freehold.[149]

 

5.3.1   What is an Absolute Estate?

 

It is no doubt, a curious estate.  It may be an allodium.[150] One thing is clear though, it is not a fee simple estate.  It would be more prudent to refer to it as an estate sui generis.

 

Under common law, the state enjoys sovereignty which is usually called “imperium”, Under Roman Law, the state did not – Accordingly, the citizens held the Radical title to their land directly.[151]  Thus, there was no reference to the sovereign.

 

From 1939, as noted[152] two Orders-in-Council were promulgated by the colonial government.

 

i)               The Kenya (Highlands) Order-in-council

 

ii)              The Kenya (Native Areas) Order-in-council

 

The effect of these enactments was to designate the Highlands as the sole preserve of the whites and to create the native areas (for the Africans)

 

In regard to the former, the radical title was vested in the colonial government.  With respect to the latter, it was vested in the Native Land Trust Board.  Upon independence, the native land areas were renamed Trust Land, the Trust Board was abolished and the trust lands were vested in the county councils in whose jurisdiction they were situate.

 

The constitution states that upon registration of any part of trust land, the county council in whose jurisdiction the land is situate ceases to have any interest in the said land.  Thus upon the said registration, the registrar effectively takes away the title from the county council and vests the same in the absolute proprietor.  Accordingly, an absolute estate can only be an allodium.

 

This necessarily means that upon the death of the absolute proprietor, the property will not escheat to the state by virtue of the doctrine of escheat.

 

This may be contradistincted to a fee simple estate, which passes to the state upon the death of the owner (if there are no descendants) by virtue of the doctrine of escheat.

 

It is thus quite clear that the absolute estate is an estate sui generis.

 

 

5.3.2.     CREATION OF THE ABSOLUTE ESTATE

 

The absolute estate is created principally by way of REGISTRATION.  This is done after any of the following processes;

 

i)               Adjudication or

 

ii)              Adjudication and consolidation of trust land or

 

iii)            Conversion from the other registration statutes to R.L.A. registration.

 

 

 

 

In Zebedee Mabede and Noah Nakitare Wasike vs. Ainea Fita, Ayub Wasike and Anor.[153]

 

It was held that whatever may have been the original nature of the title acquired by the parties, the registration of the first respondent as the legal owner as a result of the Land Adjudication proceedings of 1967 bars any person from claiming title, legal or equitable, against him.

 

An absolute estate may also be created by way of an inter vivos or testamentary transfer.

 

EXPOSITION

 

a)     Transfer

 

The word transfer as defined under section 3 of the RLA[154]is restricted to only inter vivos transactions.  Such transfers must “…take effect immediately or are otherwise void”.

 

Section 87 of the Act provides;

 

“…a transfer shall not be expressed to take effect on the happening of any event or on the fulfillment of any condition or at any future time.”

 

Accordingly, it is quite clear that any transfer must be effective immediately.  Further, the phrase “take effect” must be read to refer to the vesting of interests rather than possession.

 

Such interpretation would mean that as long as these interests can vest immediately, there is nothing to prevent the creation of future interests inter-vivos

 

However, in practice, these would be converted to Trusts for sale by the Trusts of Land Act[155]

 

b)     Inheritance

 

The creation of an absolute estate by way of inheritance, whether by will or intestacy is governed by the Law of Succession Act.[156]

 

In this regard, it is worth noting that section 107 of the Act (Cap 300) provides that matters of testate and intestate succession are not covered by the Act.  Further, sections 120 and 121 of the Act are repealed by schedule 1 of the Law of Succession Act.[157]

Because section 87 applies to inter-vivos transactions, it follows that conditional/contigent/future interests in absolute proprietorship are in theory capable of creation by will or on testacy.

 

However, in practice, the Trusts of Land Act[158] to which the Law of Succession Act[159] is subject[160] would convert all such interests into trusts for sale.

 

The Law of Succession Act in clause 26, of schedule 1 provides that unless it appears from the will that only a restricted interest was intended, testamentary grants are presumed to comprise the whole interest of the testator.

 

Where such grant concerns land formerly in the “reserves”, and where it is made in favour of more than five people, section 101(4) of the RLA provides that no more than five such grantees can be registered as absolute proprietors.

 

 

5.3.2.     THE NATURE AND CONTENT OF THE ABSOLUTE ESTATE

 

The inherent nature of this curious estate has been ably discussed in the introduction to this chapter.  What needs to be re-emphasised is that this estate is not a fee simple estate, it is basically an Allodium and it is more prudent to charactise it as an estate sui generis.

The content of this estate is defined by the R.L.A.

 

Pursuant to section 27(a) thereof, an absolute proprietor is declared to possess;

 

“…. All the rights and privileges associated with such ownership”.

 

These rights naturally include;

 

i)               the right of use

 

ii)              the right of abuse

 

iii)            the right of disposition[161]

 

It is worth noting that these rights are subject to restrictions.[162]  However, in spite of the said qualifications, section 28 of the Act provides that these powers are;

 

“not liable to be defeated except as provided in the Act and are to be held together with all the privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever”.

 

Thus, as is the case with the ITPA section 88 of the RLA prohibits any purported limitations on powers of disposition,[163]  it also prohibits;

 

i)               the insertion of conditions of defeasance in a grant[164]

ii)              conditions restraining user[165] (except as are provided for under sections 94-100)[166]

 

This means that unlike under the ITPA, restraints on anticipation are no longer possible under the RLA.

 

However, temporary restraints are permitted, for instance;

 

i)               Inhibitions

 

ii)              Cautions

 

iii)            Restrictions

 

These are adequately discussed in the prior discussion pertaining to the Fee simple estate.

 

Conclusion

 

As noted, the Absolute Estate is a rather agitating concept in the Law of property in land.  Thus it was inevitable for sections 27 and 28 of the RLA to cause (and continue to do so), considerable difficulties in judicial proceedings.  As a consequence thereof, the law pertaining to this estate is currently in a flux state.

 

 

5.5.       THE ABSOLUTE ESTATE AND JUDICIAL INTERPRETATION

 

The policy behind the Absolute proprietorship estate is quite evident – to confer upon the Absolute proprietor ABSOLUTE control of/over his estate.

 

Various schools of thought exist with respect to the interpretation of sections 27 and 28 of the RLA.  These are namely;

 

i)               The positivists theory

 

ii)              The natural law theory

 

iii)            The customary trust view

 

iv)             The English trust view[167]

 

 

5.5.1      THE POSITIVIST INTERPRETATION

 

Positivists are concerned with the law as it “is” and not as it “ought” to be.  Thus to them, the concept of absolute proprietorship essentially means that anything that does not appear in the Registered Land Act is shuttered out.  Accordingly, customary law, which does not appear, is an irrelevant consideration when it comes to interpreting sections 27 and 28 of the Act.

 

To a positivist, the Act vehemently states as follows;

 

i)               That any interests registered thereunder can only be defeated in accordance with its express provisions.

 

ii)              That a first registration under the Act is indefeasible and accordingly, cannot be impeached on any grounds whatsoever.

 

Thus in interpretating sections 27 and 28 of the Act, they apply the literal rule of statutory interpretation viz, to give the words used in statute their natural and ordinary meaning and accordingly, to enforce that particular legislative intention.

 

Essentially this school of thought holds the view that registration of an ABSOLUTE proprietor extinguishes ALL interests other than those noted in the Register.

 

Moreover, a panel of elders has no power to hear a dispute relating to land registered under the RLA. This was espoused in;

 

Wamalwa Wekesa vs. Patrick Muchwege[168]

 

The learned judge stated that it mattered not that the disputed land was family land. A panel of elders could not lawfully entertain an issue which concerned title to land. Sec 159 of the RLA excludes the jurisdiction of a panel of elders from civil suits and proceedings relating to title. Further, if the subject of the proceedings before a panel of elders is land registered in a first registration under sec143 of the RLA, then the elders have no jurisdiction to arbitrate.

 

However, there are certain exceptions to this general principle, which even the propounders of this school of thought recognize – principally because the Act provides specifically for them. 

 

These exceptions may be summarized shortly as;

 

i)               Overriding interests expressly specified in section 30 of the R.L.A.  These are for instance, easements, profits, way leaves, eminent domain, leases which do not require registration, prescriptive limitation, and recognized rights of occupation[169]

 

ii)              Beneficial interests under a trust.  These are saved expressly by the proviso to section 28[170]

 

To a positivist, unless an interest which is not noted on the register falls within the ambit of the above exceptions, it does not then, exist or even worse, it has been extinguished.

 

This strict/literal interpretation of the Act has caused a lot of grief to Kenyans especially with respect to those who purport to hold land under customary law. (For instance, under positivists interpretation, it has been held that customary law interests per-se, are not regarded as overriding interests within the meaning of section 30 of the Act.)

 

This positivist approach is made even worse by the fact that upon a first registration customary rights are forever extinguished because the registration cannot be cancelled on any grounds whatsoever.[171]

 

The leading authority in this regard is the case of Selah Obiero vs. Orengo Opiyo[172]

 

Facts

 

The plaintiff was in 1968 registered under the RLA (Cap 300) as a proprietor of land.  No encumbrances were noted on the register.  The defendants, (who were the sons of her co-wives, with the plaintiff being the wife in whose name the family land was registered.) admitted that they were in possession and actual occupation of the suit land.  They claimed ownership under customary law and swore to have cultivated the suit land since time immemorial.  They also alleged that the plaintiff’s registration, which was a first registration under the Act, had been  obtained by way of fraud in that the plaintiff had not revealed their interests in the suit land during the registration process.

 

 

Held

 

i)               That even if registration had been procured fraudulently the plaintiff’s title was indefeasible as it was a first registration.

 

ii)              That the plaintiffs’ title was subject to no encumbrances and was accordingly, free from all interests and claims.

 

iii)            That the rights of occupation inherent in the defendants, which arose under customary law, were not overriding interests, under section 30 of the RLA and further, had been extinguished upon the first registration of the plaintiff as an absolute proprietor of the suit land.

 

In granting the plaintiff damages for trespass to land against the four defendants and an injunction to restrain them from continued trespass, Bennet J, categorically stated;

 

“Rights arising under customary law are not among the interests listed in section 30 of the act as overriding interests.   Had the legislature intended that the rights of a registered proprietor were to be subject to the rights of any person under customary law, nothing could have been easier than for it to say so”

 

With respect to the learned judge, such could not have been the legislature’s intention.  In this assertion, the author relies on the fact that a special legislation had to be enacted to nullify the process of registration in Nyeri as from 1954 to 1963 principally due to the clash between customary land law rights of occupation and the Act.

 

In a further decision, Esiroyo vs. Esiroyo[173]  Kneller J relied on the decision in Obiero vs. Opiyo to allow an old man who had bitter disagreements with his sons to deny them their share of family land.  This was despite the fact that the sons had proved their entitlement to the suit land under the relevant luhya Customary Laws of land tenure.

 

Facts

 

The plaintiff brought an action against the two defendants claiming an order for their ejectment from a 22-acre piece of land registered under the RLA (Cap 300); damages for their trespass on it for the past two years and an injunction to restrain them, their wives and children or servants from continuing or repeating any acts of trespass.

 

Each of the two defendants resisted this. They declared that because they were the natural sons of the plaintiff, they were entitled to certain portions of the plaintiff’s land and to occupy those portions and to cultivate them together with their wives and children and servants because it is the land which came to their father from his father and grandfather and so forth.

The defendants further \stated that they were all Luhyas and the land was in an area where Luhya customary law obtained and their titles to the portions of these acres were well founded in that customary law.

Held;

 

Kneller J.,

 

 The matter is taken out of the purview of customary law by the provisions of the Registered Land Act. The plaintiff is the registered proprietor of the land. The rights of the defendants under customary law have been extinguished. Section 28 of the RLA confers upon a registered proprietor “a title free from all other interests and claims whatsoever”, subject to the lease, charges and encumbrances shown in the register and such overriding interests as are not quoted in the register. There are no encumbrances noted on the land certificate. The plaintiff’s title is free of encumbrances. Rights arising under customary law are not among the interests listed in s.30 of the Act as overriding interests.

 

“Had the legislature intended that the rights of a registered proprietor were to be subject to the rights of any person under customary law, nothing would be easier than for it to say so.”[174]

 

Similarly, in Ambale vs. Masolia[175] the plaintiff alleged that land belonging to him had been registered in the name of the defendant through fraud.  He further contended that he had a customary right to the land.  It happened to be a first registration.  It was categorically held that a first registration cannot be impugned for fraud and that customary rights are not overriding interests.

 

Other decisions in this regard (in support of positivist interpretation) may be listed as hereunder:

 

Belinda Murai and Another vs. Amos Wainaina[176]

 

An appeal arising out of a claim put forward by the respondent to have become entitled by adverse possession to a parcel of land registered under the RLA (Cap 300) in the name of Ignatius Murai, now deceased. The respondent was let into possession of that land in 1961, and is still in possession of it. He lives there with his family, has planted crops including over 1,000 coffee trees, and he owns cattle. His possession has been exclusive and uninterrupted.

 

 Ignatius Murai was an important chief in Murang’a District, which is inhabited by members of the Kikuyu tribe, whose lives are largely regulated by Kikuyu law and custom. Chief Murai died on 16^th May 1974 leaving as his heirs a widow (Belinda), three brothers and six sons, who are the appellants in this appeal. They consulted a firm of advocates, who on 26^th July 1974 wrote to Amos, saying that the verbal license granted to him by the late chief Murai was now terminated, and that without prejudice to his liability to be evicted without notice, Amos was given 30 days notice to quit the land.

 

Amos in turn consulted advocates, who replied on 10^th September 1974 denying that Amos occupied the land under license, but alleging that Amos had been adopted by chief Murai as a son and that the chief had given him the land as his share of his prospective inheritance.

Further evidence by the appellants indicated that Amos was a ‘Muhoi’[177]

 

Held;

 

Law J.A.

The learned judge did not think that Amos was in possession as a Muhoi but in some other capacity. I am of the same view. In these circumstances, having rejected Amos’ contention that he was a donee, the learned judge was left with the only two alternatives known to the common law, which he had to apply to this piece of registered land. There was no satisfactory evidence as to the intention of the parties such as to rebut the presumption of a tenancy at will. There was no acknowledgement of chief Murai’s title in writing, signed by Amos, which under section 24 of the Limitation Act could have defeated Amos’ claim to have become entitled to the land by Adverse possession, and he is in my view entitled to the benefit of the learned judge’s order that he be registered as such.

 

 

Keduiwo A. Marisin & 7 others vs.Samuel Kipsige Arap Soi[178]

 

The respondent suing on his behalf and on behalf of a village group comprising 24 families sought inter alia declarations that he and the 24 families by virtue of their long occupation of certain pieces of land had acquired proprietary rights over them and that the appellants held the same in trust for them. He also sought adjudication of these parcels of land in favour of the 24 families and their registration as the proprietors thereof. It was argued that the said parcels were in the occupation of the respondents as one large piece of land until 1974 when it was adjudicated in favour of Leshan ole Kipketer who then subdivided it into the present 8 parcels that were then registered in the names of the appellants.

 

 

 

Held;

 

Under the relevant provisions of sec 21 and 22 of the Land Adjudication Act, procedure is laid down for redress to any person affected and aggrieved by the decision of the adjudication committee.

 

The suit land registered in the name of the appellants, being first registration could not under Sec 143(ii) of the RLA be cancelled or amended even if the same was obtained by fraud[179].

 

 

5.5.2.     NATURAL LAW INTERPRETATION

 

This school of thought advances the view that positivist interpretation cannot be correct because no legislature would have intended to create consequences so severe as those flowing from a positive interpretation of the Act. (RLA)

 

To the naturalists, the process of registration upon/after adjudication and consolidation was just a process of clarifying land held under customary law with a view to ascertain who owned what interests in an area not yet adjudicated.  Thus the rights created by the adjudication and registration are all customary rights and not rights determined by any other law.  Thus if this be the case, we must look at the facts of each particular case so as to determine whether the registration was intended to vest the entire interest in a particular land in the person so registered as a proprietor or whether it was intended to be a means of preserving the rights and interests of others.

 

Mr. Justice Muli is the most ardent and vehement exponent of this school of thought.

 

In Samuel Thata Misheck vs. Priscilla Wambui[180]

 

Muli J. argued as follows;

 

“Registration of titles is a creation of the law and one must look into the circumstances surrounding each case as well as customary law and practice in force surrounding the registration of titles to determine whether a trust was envisaged”

 

The distinct character of this school of thought is its reliance on the institution of trust to mitigate some of the inequities which absolute proprietorship can lead to in a purely land based society.

 

To Muli J, the purpose of registration is to preserve family land and not to exclude the rights of other members of the family.  Accordingly, the registration of any person as an absolute proprietor of any family land will unless the surrounding circumstances establish otherwise, lead to the creation of a trust[181]

 

At this point, it must be noted that this school embodies not one but two very distinct views on the very nature of the TRUST.  These are;

 

i)               Customary trust

 

ii)              English trust

 

i)               The Customary Trust View

 

Pursuant to this view, the process of land adjudication and registration was not meant to expropriate family land and transfer it to individuals.  Rather, the purpose was to guarantee family title.

 

Accordingly, where an individual is registered as a proprietor of family land he holds the land as a TRUSTEE and not as the absolute owner.

 

This view holds that this TRUST arises from customary law.

 

The earliest exposition of this view is outlined in the obiter dictum of Madan J (as he then was) in the case of Mwangi Muguthu vs. Maina Muguthu

 

His lordship categorically stated:

 

“Regarding section 126 (of the RLA) there was no need to register the defendant as trustee for he was registered as owner as the eldest son of the family in accordance with Kikuyu custom which has the notion of trust inherent in it”[182]

 

In Hosea vs. Njiru and Others[183] Simpson J. (as he then was) recognised the existence of a customary trust and ordered the defendant to execute a transfer in favour of the plaintiff to circumvent the prohibition imposed by section 143 RLA with regard to first registration.

 

Facts;

 

The plaintiff claimed to have bought the land from the first defendant in 1957 and to have been in occupation of it as owner ever since. The second defendant who was then a minor claimed to have bought the land from the first defendant and to have been registered as its proprietor under the RLA (Cap 300) in 1959.

 

The plaintiff prayed for a declaration that he had acquired title to the land by prescription, that the second defendant held the land in trust for him and should transfer it.

 

Held;

 

Sec 37 (a) “Where, if the land were not so registered, the title of the person registered as proprietor would be extinguished, such title is not extinguished but held by the person registered as proprietor for the time being in trust for the person who, by virtue of this Act, has acquired title against any person registered as proprietor, but without prejudice to the estate or interest of any other person interested in the land whose estate or interest is not extinguished by this Act…”

 

Thus from 23^rd June 1969 the second defendant has held the land in trust for the plaintiff. The plaintiff is entitled to a declaration to that effect.

 

It is worth noting that Muguthu’s case was a case of an express trust.  However, it is also worth noting that ever since, it has been suggested that unless a contrary intention is shown, a “customary trust” is to be presumed under section 27 and 28 once it is shown that the land in question is family land[184]

 

It is further suggested that once such a trust arises, it ought to attract the protection of the law.

 

This view, it must be pointed out, augers well with the views of one Nigerian chief who once remarked that land is owned by the living, the dead, and the unborn hence cannot be converted by the trick of registration.

 

ii)              The English Trust View

 

This school of thought is based on the more stable doctrine of the English trust

 

However much confusion surrounds the classification of the trust alleged to arise from the fact of registration[185]

 

All the same, the general principle in this school of thought was most ably stated by Cotran J. in Limuli’s case[186]

“…It is now generally accepted by the courts of Kenya that there is nothing in the RLA which prevents the declaration of a trust in respect of registered land, even if it is a first registration and there is nothing to prevent the giving effect to such a trust by requiring the trustee to do his duty…”

 

A further case in point is the decision of Law J.A in Alan Kiama vs. Ndia Muthunya[187] where the learned judge was prepared to find a constructive, implied, resulting and express trust on the same set of facts.  This decision is illustrative of the great lengths to which some of our more imaginative and active judges are prepared to go in a bid to mitigate the harsh effects of an RLA registration in a land-based society

 

Facts

 

An appeal from the High Court where the learned judge decided that the plaintiff held the suit land on trust for the defendants and directed that he transfer the land to the defendants and that the Land Registrar amend the register so as to have the names of the defendants registered as owners in common.

 

The parcel of land in dispute had belonged to the Agaciku/Kabareki clan of which the respondents were members and they and their forefathers had cultivated this land since time immemorial. At the time of Land Consolidation, Karuru Kiragu without the knowledge of the clan registered himself as owner of the parcel of land and he later secretly transferred it in the name of the appellant.

 

Held;

 

The respondents’ interest in the land is an overriding interest to which the suit land is subject. The consent required under sec 6 of the Land Control Act, which had not been obtained in this case, only applies to an express trust and not to an implied, resulting or constructive trust which is created, not by the act of the parties, but by operation of the law.

 

In dismissing the appeal, the learned judge stated that;

 

“The appellant’s predicament is entirely of his own making. He can only look to his fellow conspirator Kiragu for redress. Their plot has failed, and the appellant must bear the consequences. If ever there was a case in which equitable principles are justifiably to be invoked to protect the innocent and the oppressed, this is the case.”

 

 

5.5       Registration of Absolute Interests

 

Torrens was the original adjudicator of the registration of land in Australia.  His system of registration was received in Kenya, thus the Torrens system of registration currently obtaining in the country.

The central tenet of this system of registration is that the register should mirror everything one wants to know about any parcel of land in the country (provided it is registered).

 

Under this system, the Register has three essential parts;

 

i)               The property section

 

ii)              The proprietorship section

 

iii)            The encumbrances section

 

Briefly, the property section tells us the context of the property i.e. is it an absolute interest, or a leasehold interest.  The proprietorship section reveals the name of the owner/proprietor; his/her contacts and the identification number of the land i.e. reference number.  Lastly, the encumbrances section will show whether the property is mortgaged or charged i.e. is it subject to economic burdens or anything that is likely to defeat ownership of the proprietor.

 

If there is nothing shown in the encumbrances section, one should look at section 30 which lists the interest which are said to be overriding to the interests of the proprietor.  These are;

 

i)               Servitudes, existing at the time of first registration i.e. easements, profits, restrictive covenants.

 

ii)              The right of the state to acquire land for public service.  This pertains to the doctrine of eminent domain

 

iii)            Way leaves i.e. for laying cables and putting up electric lines etc

 

iv)             Non-registrable interests i.e. leases which are periodic in nature

 

v)              Prescriptive limitations – these are ways of acquiring title land available to a trespasser.

 

vi)             Recognized rights of occupation.  It should be noted that the RLA fails to explain what these rights are but in 1981 the Court of Appeal in England in William and Clynnbell Ltd vs. Bolland[188] explained a similar provision and suggested that before entering into a transaction in land it is necessary to inquire whether there is anybody who is in occupation in such a way that even the land owner recognizes that they have a right to stay thereon.

 

 

In Wreck Motor Enterprises vs. The Commissioner of Lands and Others[189]

 

The appellant firm had since 1989 been operating on the suit plot and on March 11^th 1993, it sought through the first respondent the approval of H.E. the president under sec36 of the GLA for the suit plot to be allocated to it. Presidential approval was obtained on November 24, 1993 but by a letter dated January 31^st 1994, the Commissioner of Lands wrote to the appellant that the suit plot had been allocated to another person on 22^nd November 1993 and so was no longer available as an unalienated land for allocation to the appellant.

 

Held;

 

In this case, it was held that the earlier grant took priority and the land was already alienated. There was no sign of fraud on the part of the second respondent thus, he was a bonafide purchaser for value without notice.[190]

 

Under the RLA, if customary rights are recorded in the adjudication register, then they are converted into periodic tenancies.[191] These need a prescribed notice before they are terminated.

 

It is thus evident that there is a bitter controversy between the absolute estate and customary law.

 

It in fact, appears that customary law is automatically disapplied upon land once it is registered under the RLA.

 

This view finds some support in the sentiments of some judges, for instance, the judge in Belinda Murai case[192] argued that upon registration, it is not only customary rights, which are extinguished, but also the applicable customary land law.  Further under section 163 of the Act, where the Act is silent, recourse must be had to English Common Law and doctrines of equity modified accordingly.

 

The trust view has been applied in various cases.  However, it ought to be pointed out that this is a stand taken by the Minority judges.  The Court of Appeal has refrained from laying the law down with respect to this legal conundrum.

 

Accordingly, since the trust view and the positivist interpretation of the Act exist side by side, a lot depends on the judge presiding over a case.  This is no doubt, a really unsatisfactory state of affairs.  The law remains to be in a state of flux, wired in confusion.

 

5.7 PROPERTY RIGHTS IN LAND VIS A VIS ENCUMBRANCES & SERVITUDES

 

5.7.2    OF ENCUMBRANCES; A BRIEF INTRODUCTION

 

These (as noted) are rights in ALIENO SOLO i.e. rights in the soil of another.

 

Essentially, they are Burdens upon land otherwise owned by another

 

There are two main categories of encumbrances viz

 

i)               Mortgages[193]

 

ii)              Charges

 

It is however worth noting that mortgages could be either LEGAL or EQUITABLE.  A more comprehensive discussion on mortgages follows in chapter six, ahead.

 

5.7.2    OF SERVITUDES; A FURTHER INTRODUCTION

 

Likewise, servitudes are also property rights in land owned by another

 

They are, already noted, rights in ALIENO SOLO ie rights in the soil of another

Again, they are essentially burdens upon land

 

The law knows of various categories of servitudes viz;

 

i)               Easements

 

ii)              Profits a prendre

 

iii)            Restrictive covenants

CHAPTER SIX

 

6.0.0      OF MORTGATES AND CHARGES; AN APPRAISAL

 

Mortgages and charges, though encumbrances, have gained great significance in today’s capitalist economies despite the fact that they are BURDENS upon land.

 

They are essentially borrowing transactions

 

The principal idea behind mortgages and charges lies in the fact that they serve the following functions

 

i)               They allow people who are in the peripheries of the production process to be integrated and reintegrated into the said process.

 

ii)              As an institution it enables people to own homes

 

iii)            As an institution, it further RE ALLOCATES property rights in society i.e. if a mortgagee defaults in repaying the borrowed money/loan, his property may be sold to recover the principal i.e. loan and of course, any accumulated interest.

 

6.1.0      GENESIS AND EVOLUTION OF MORTGAGES AND CHARGES

 

It ought to be noted that mortgages and charges are closely linked to the doctrine of estates.

 

During the 13^th and 14^th centuries, there evolved an institution called USURY

 

Basically, this institution pertained to a practice whereby MONEY was lent subject to unreasonable conditions, which dictated high interest returns. This meant that the unfortunate borrower was hardly ever able to repay the loan (principal plus interest)

 

As a practice, USURY Institution became so bad that the English parliament outlawed it.

 

In the 14^th Century, English Lawyers invented an institution which came to be generally known as the PLEDGE.

 

The basic idea behind this institution was that LAND could be PLEDGED as SECURITY for a loan

 

In this regard, there were two types of a pledge, namely;

 

a)     a living pledge (Vivum Vadium)

 

b)     a dead pledge (mortum vadium)

Under a living pledge, the lender took possession of the property (LAND), received the Rents and profits therefrom until the principal and interest thereon was/were repaid. Income from the land was used to discharge the mortgage debt hence self-redeeming.

 

Under a Dead pledge, the lender received only Rents and profits as a discharge to the interest only. The mortgagee kept the income.

 

Notably, by the 15^th century a mortgage entailed a CONVEYANCE of the borrower’s interest on condition that upon the repayment of the mortgage debt, the lender would RECONVEY the interest to the Borrower.

 

Accordingly, the conveyance would be defeated if the repayment occurred as stipulated.  In the event that the borrower failed to repay the loan as stipulated, he/she would FORFEIT his interest in the property to the lender.

 

Thus, it is quite clear that the institution of the pledge enabled the practices prohibited under the institution of the USURY to remain deeply entrenched.

 

As an institution, it became quite bad when lenders commenced on insisting that the borrower conveys his fee simple interest to them for the loan on similar conditions.

 

The mortgage institution was not a stranger to other jurisdiction.  Thus, for instance it did thrive under Roman Law and to an extent, Mohammedan Law.

 

6.1.1      ROMAN LAW

 

Under Roman Law, the first aspect of the mortgage institution to evolve was the FIDUCIA.

 

The fiducia was essentially a fiduciary relationship between a lender and a borrower.

 

Property was given/passed to the lender in return for a loan.  Upon default, the same was forfeited to the lender regardless of its value.

 

The second Limb was the pigmus

 

As a practice, the pigmus entailed a transfer of POSSESSION but without the element of FORTEITURE as in the FIDUCIA.

 

Upon the borrower defaulting, the property was merely solid and not forfeited, in a bid to recover the principal plus interest.

 

The third limb was the HYPOTHECA

This one merely entailed a pledge without delivery of possession.  However, the creditor had the power of sale, which he could exercise upon the Borrower’s default.

The catch was that upon the lender exercising his power of sale, he was required to account for the proceeds therefrom.

 

 

6.1.2      MOHAMMEDAN LAW

 

To the Mohammedans, the very idea of interest is abhorrent, offensive and alien to their religion.

 

Accordingly, they developed the institution of the BYE-BIL-WAFA, which upon a close scrutiny appears to be equivalent to the English USUFRUCTUARY MORTGAGE whereunder the borrower would pledge his property to the lender subject to a condition that he would repay the debt.  The lender was vested with the right to take rent from the property without accounting for it until such a time as and when he had fully recovered the principal plus interest.

 

 

6.2.0      THE CREATION OF MORTGAGES AND CHARGES

 

The general principles are essentially statutory requirements i.e.

 

i)               A charge or a mortgage must be in writing pursuant to section 3(3) of the law of Contract Act (cap 23) of the laws of Kenya.

 

ii)              A mortgage or charge must be in the prescribed form/instrument and the same must be REGISTERED[194]

 

iii)            The mortgage/charge instrument must contain an acknowledgement signed by the mortgagor/chargor to the effect that he understands the effect of the transaction, in particular, the effects of section 69 ITPA and section 74 of the RLA pertaining to the sale of the property upon default of the mortgagor/chargor in repaying the principal plus interest. Any Interest other than a life interest can be mortgaged/charged. A Leasehold interest may be mortgaged/charged for the duration of the lease.

 

iv)             Where the repayment date is not fixed vide the instrument, the mortgage/charge debt shall be paid in case of the ITPA (1882) mortgage, within 6 months after receipt of Demand Notice and in case of the RLA charge, within 3 months of receipt of Demand Notice.

 

 

 

 

 

6.2.1      OBLIGATIONS OF THE PARTIES TO A MORTGAGE/CHARGE

 

These obligations are demonstrative of the burdens imposed by mortgage/charge transactions upon land.  They are encumbrances since they encumber the title of the Mortgagor/Chargor.

 

i)     He must pay the principal sum plus interest on the due date

ii)    He must honour prior obligations if the transaction is a subsequent charge/mortgage.

iii)  He must pay all rates and taxes under the borrower’s responsibility

iv)  He must keep the premises in repair, failure to which he must make good the diminution in value to the mortgagee/chargee

 

6.3.0      THE LAW OF MORTGAGES AND CHARGES IN KENYA

 

Section 58 of the ITPA (1882) defines a mortgage as

 

“….the transfer of an interest in specific immovable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt, or the performance of an engagement which may give rise to a pecuniary liability”

 

Section 3 of the RLA defines a charge as;

 

“…an interest in land securing the payment of money or money’s worth or the fulfilment of any condition and includes a sub charge and the instrument creating a charge”

 

In the same regard, section 65 of the RLA further provides

 

“… A charge shall not operate as a transfer but shall have effect as security only”

 

It is thus quite evident that in Kenya, principally due to statutory intervention the institution of the mortgage has acquired a somewhat different colouring.

 

For instance, there must be a lending or an existing or a future debt for a mortgage to exist.

 

Initially section 2 of the Banking Act (Cap 488) provided that lending was to be done at the Banker’s risk.  However, this is no longer the position.

 

What caused the change?

 

The fallacy in the failure of the Banking Act to insist on lending institutions to take security was vividly illustrated in the mid 1980’s when numerous lending institutions collapsed, in the process loosing their Deposits to the dismay of many unfortunate Kenyans.  This sorry state of affairs was triggerred off by the fact that since these Banks had lend money without security, they had nothing to fall back on in a bid to recover their money once the borrowers defaulted in repaying their loans.

 

Parliament subsequently intervened vide Act No.9 of 1989 which made the acquisition of security by lending institutions compulsory as a matter of law.  In the same regard, even the Central Bank Act, (Cap 491) does require lending institutions to take security before lending.

 

What is the Distinction between a Mortgage and a Charge?

 

Principally, in a mortgage, the title to the property is the security while in a charge there is only appropriation of the property as security for the Debt.

 

However, it ought to be noted that the RLA has fully assimilated the distinction between mortgages and charges.  As a consequence thereof, the RLA creates a “mongrel” fashioned after section 85 of the Law of Property Act of 1925 of England.

 

 

CLASSIFICATION AND CREATION OF MORTGAGES AND CHARGES

 

Pursuant to section 58 of the ITPA, 1882, four classes of legal mortgages may be created.  To these add a fifth class created under the Equitable Mortgages’ Act, Cap 291.

 

a)  SIMPLE MORTGAGES

 

These may be brought forth under section 58 of the ITPA.

 

Procedure

 

There is delivery of possession of property after which the mortgagor binds himself to personally pay the mortgage money/debt and agrees that upon default, the mortgaged property may be sold and the proceeds therefrom applied towards discharging the mortgage debt.

 

b)  USUFRUCTUARY MORTGAGE

 

These are formed under section 58(d) of the ITPA (1882)

 

Procedure

 

There is transfer of possession wherein the property is transferred/delivered to the mortgagee, who is also conferred with authority to retain the property in question until the mortgage debt is fully repaid.

However, during the time when the mortgagee is in possession of the property, he/she is entitled to receive rents and profits therefrom and to apply the same towards the repayment of the mortgage debt.

 

c)  MORTGAGES BY CONDITIONAL SALE

 

These are formed under section 58 (5) (I) of the ITPA (1882)

 

Procedure

 

The mortgagor ostensibly sells the mortgage property to the mortgagee on condition that the sale will become ABSOLUTE if the mortgagor defaults in repaying the debt.  In the alternative, upon the mortgagor repaying the debt the sale becomes void and the lender/mortgagee has to retransfer the mortgaged property to the mortgagor.

 

d)  ENGLISH MORTGAGE

 

These are formed under section 58(e) ITPA (1882)

 

Procedure

The mortgagor binds himself to repay the mortgage money on a certain date or (by a certain date) AND transfers the mortgage property ABSOLUTELY to the mortgagee subject to the condition/proviso that the mortgagee will RE-TRANSFER the property to the mortgagor upon the repayment of the principal and interest if any.

 

 

e)  EQUITABLE MORTGAGES

 

These are creatures of EQUITY not statutes, especially in the UK where they evolved.  However, in Kenya, there has been statutory intervention for ALL Equitable Mortgages are in Kenya created pursuant to the provision of the Equitable Mortgages Act Cap 291 of the laws of Kenya.

 

In the same regard, the provisions section 102(g) of the GLA are also worth noting. The section provides for the creation of equitable mortgage by way of deposit of title documents/deeds with the mortgagee and the registration of a Memorandum of such deposit in the Lands office.

 

Section 98 of the ITPA (1882) does further provide for the creation of anomalous mortgages.

 

These are basically mortgages other than those described in section 58 of the same Act.

Anomalous mortgages are said to arise where, pursuant to section 98 thereof, the rights and obligations of the parties are to be determined by their contract as evidenced in the mortgage instrument.

6.3.2      SUM-UP ON INTRODUCTION TO MORTGAGES AND CHARGES

 

Of all of the aforestated categories of mortgages, the BEST is the English Mortgage.

 

Principally, this is because as a mortgage, it has ALL the basic REMEDIES provided for under section 67 – 69 of the Indian Transfer of Property Act, (ITPA) 1882.

 

By way of a passing glance, these remedies are:

 

a)     Fore closure

 

This is where the mortgagor’s equitable right to redeem was declared by the court to be extinguished and the mortgagee was left owner of the property, both at law and in equity. By giving the mortgagor an equitable right to redeem after he had lost his equitable right of redemption, equity had interfered with the bargain made between the parties. This interference was to prevent the conveyance by way of mortgage from having its full effect and therefore by foreclosure, the “court simply removes the stop it has itself put on.”

 

Essentials

 

·       It is done by an order of court and not by any person.

 

·       The right to foreclosure does not arise until repayment has become due at law since until the equitable right to redeem has arisen, it cannot be extinguished by foreclosure.

 

·       An action for foreclosure can be brought by any mortgagee of property.

 

b)     Sale

 

This is an express power in mortgage deeds enabling the mortgagee to sell the property out of court and free from the equity of redemption. This power allows the mortgagee to take only what is due to him out of the proceeds of sale and only to exercise the power in proper circumstances.

 

c)    Possession

 

A legal mortgage gives the mortgagee a legal estate in possession hence he is entitled, subject to any agreement to the contrary, to take possession of the mortgaged property as soon as the mortgage is made even if the mortgagor is guilty of no default.[195]

 

 

d)     Appointment of a receiver.

 

In order to avoid responsibilities of taking possession and yet achieve substantially the same result, well-drawn mortgages used to provide for the appointment of a receiver with extensive powers of management of the mortgaged property. Thus, the mortgagee without taking possession himself could ensure that the property was efficiently managed and that his claim for interests was made a first charge on the net rents and profit.

 

In practice, this is the kind of mortgage concluded between Borrowers and Lenders. 

 

Simple Usufructuary mortgages, and to an extent, mortgages by way of a conditional sale are defective as security.

 

With reference to anomalous mortgages created pursuant to section 98 of the ITPA (1882), they are at best, described as abstract principally due to their ambiguous nature and scope.

 

 

6.3.3      DEMYSTIFYING THE LINK BETWEEN MORTGAGES AND CHARGES AND THE DOCTRINE OF THE EQUITY OF REDEMPTION.

 

At common law, if a borrower did not repay the mortgage debt on the contractual date of redemption i.e. (the legal date of redemption) his right to redeem the mortgaged property was extinguished.

 

The right to Redeem: Demystified

 

At common law, it was generally accepted that the borrower had a right, upon repaying the mortgage debt plus any interest thereon, to have his interest in the property constituting the subject matter of the mortgage reconveyed to him/her.

 

This right, as a matter of practice, arose and vested in the mortgagor on the contractual date of redemption.

 

It ought to be noted that once this date passed without the mortgagor redeeming his interest/property, he was taken to have forfeited the same and accordingly, the said property would vest absolutely in the mortgagee.

 

As can be expected, this practice did have quite harsh effects on the mortgagor who lost his property, which was frequently mortgaged at a value for which less than its real worth.

 

 

 

6.3.4 EQUITY INTERVENES

 

Equity intervened to remedy the harsh provisions of the common law.

 

In intervening, equity was guided by the principle “once a mortgage, always a mortgage” by which it was meant that the principal interest of the lender (mortgagee) was to the money and his right to the land was only as security for the money.

 

Accordingly, the failure of the borrower to repay the mortgage debt on the agreed date could not justify the extinction of the borrower’s interest in the mortgaged land.

 

At the beginning of the 19^th century, equity had substantively intervened such that it was generally accepted that even if the date fixed for redemption, had long since passed, equity would compel the lender to RECONVEY the property to the borrower UPON the payment of the principal sum plus interest and costs.

 

Accordingly, equity gave the borrower an EQUITABLE RIGHT to redeem his property at a time when the agreement between the parties provided that the lender (mortgage) was to be the PROPRIETOR of the property.

 

This equitable right to redeem came to be so substantively evolved such that even the mortgagor could mortgage it.  As such, it came to be referred to as the mortgagor’s EQUITY OF REDEMPTION.

 

However, since the interest was merely equitable, the mortgage created would also be equitable for there could be no legal mortgage of something, which existed only in equity[196]

 

However, it ought to be noted that the term “Equitable Right of Redemption” is no longer equitable, but legal and statutory.

 

It is in a nutshell, it is a right that cannot be fettered and has so been ever since its inception.

 

This view of the law was echoed by the court in the case of Saleh vs. Eljofri[197] where it was held that a borrower’s equity of Redemption was an essential element of every mortgage and the failure of the mortgagor to REPAY the mortgage debt on the contractual date of Redemption did not BAR the borrower from his right to REDEEM the mortgaged property.

 

Likewise, in Industrial and Commercial Development Co. vs. Kariuki Gathecha Resources[198] it was held that the right of Redemption continues until a transfer is registered.  The upshot of this decision is that a borrower is at liberty to redeem his property provided a transfer in favour of the lender has not been registered.

 

Facts

 

The respondents had charged a piece of land to the appellants under a mortgage, registered at the government registry in Kenya, with the repayment of Shs. 500,000 advanced to the respondent by the appellant and interest. The appellant purported to exercise its power of sale under the mortgage under the terms of sec 69 (1) of the Transfer of Property Act. The respondent made an application to stop the sale of the property and on 11^th April 1974 (the date set for the sale), they obtained an injunction from the court prohibiting the sale. The formal order, however for some reason, was not issued until 30^th October 1974. The appellant filed an application to discharge the injunction on the ground that it had previously, under its power of sale, sold the property on 9^th July 1974.

 

Held;

 

The appellant’s application was dismissed since it had not yet exercised the power of sale within the meaning of sec69 (1) of the Transfer of property Act and that the respondent had not lost its right to redeem. A mere contract of sale between the appellant and its purchaser did not extinguish the right of redemption of the respondent thus, the right of redemption continues until the conveyance is registered and the sale completed.

 

 

6.3.5      STATUTORY PROTECTION OF THE EQUITY OF REDEMPTION IN KENYA

 

Under the ITPA 1882, the borrower has the right to redeem his property.

 

As a matter of fact, the borrower is guaranteed of this right in absolute terms.

 

Accordingly, a borrower may move to redeem his property at any time after the principal money has become payable and no notice is required.

 

Under the RLA, any agreement between the chargor and the chargee to deprive the chargor of his right to redeem and or his equitable right of redemption is void[199]

 

 

Thus under both statutes, it is evident that the right of redemption is inviolable[200]

 

If no date of redemption is specified in the charge, (under the RLA) the money shall be deemed payable three months after the service of a DEMAND in writing by the chargee.  Further, a chargor is entitled to redeem his property at any time upto the contractual date of redemption without notice but thereafter, he must give three months notice or pay three months interest in lieu of notice.

 

In Trust Bank Ltd vs. Eros Chemists Ltd & Whitestone Auctioneers (K) Ltd[201]

 

The question whether he three months notice is mandatory before exercising the right of statutory sale was addressed.

 

Facts

 

The first respondent was the owner of the suit property and was a customer operating an account with the appellant who was the holder of a legal charge over his property. On 24^th March 1999, there appeared a notice on a daily newspaper advertising the sale by public auction of the said property. The respondent then moved the superior court to grant an injunction against the purported sale wherein it was held that the notice was invalid. On appeal, important questions arose as to what authority was to be followed considering that the Court of Appeal had previously issued two contradicting decisions on the issue.

 

Held;

 

The notice was to guard the rights of the mortgagor because when the statutory right of sale is exercised, the mortgagor’s equity of redemption is extinguished.

 

A notice seeking to sell the charged property must expressly state that the sale shall take place after the three months period.

 

The court in Russell Company Ltd vs. Commercial Bank of Africa Ltd & Another[202]

 

Held that Sec 69 (A) (1) of the ITPA did not require the three months period to be stated in the notice nor did its absence vitiate the notice or render it illegal.

 

The basis of this decision was that this requirement is not so stated in the statute.

 

This decision was however, contradicted by a later decision in Trust Bank Ltd vs. Okoth[203] where the court held that the notice is required expressly to specify the period of three months upon the expiry of which the mortgagee’s power of sale would not have accrued rendering the sale invalid.

 

The notice is to guard the rights of the mortgagor because if the statutory right of sale is exercised the mortgagor’s equity of redemption will be extinguished.

6.3.6      JUDICIAL COMMENTARY

 

In Fairclough Vs. Swan Brewery Co. Ltd[204] there was a clause in the mortgage which purported to postpone the right to redeem (on the part of the mortgagor) for about 20 (twenty) years.  The court categorically held that this clause rendered the property virtually irredeemable and that the borrower had the right to redeem at an earlier date. 

 

MacNaghten L.J. stated:

 

“Equity will not permit any device or contrivance being part of the mortgage transaction or contemporaneous with it to prevent or impede redemption.”

 

In Lewis V Frank Love Ltd,[205] it had been agreed between the borrower and the personal representatives of the Lender that if the said representatives did not demand repayment of the debt for a period of two years, the borrower would grant them an option to purchase part of the mortgaged property.

 

This agreement/option was categorically declared void by the court since it, without doubt, amounted to a clog on the borrower’s equity of redemption.[206]

 

The court stated thus,

 

“The principle on which a clog on the equity of redemption had been held to be void applied to the transfer of a mortgage where one of the terms arranged between the mortgager and the transferee was that the transferee should have an option to purchase in return for taking the transfer. Accordingly, the defendant’s option to purchase was a clog on the plaintiff’s equity of redemption and was therefore void.”

 

However, if a collateral agreement does not prevent the exercise of the mortgagor’s right/equity of redemption, the courts need not interfere.

 

For instance in Knightsbridge Estates Trust Ltd Vs Byrne[207] the borrowers/mortgagors had agreed to repay a loan of £310,000 by installments over a period of 40 years.  They later wished to borrow elsewhere at a reduced rate of interest and moved to redeem the property arguing that the postponement of the right to redeem for 40 years was unreasonable.

 

In holding that the mortgagors could only redeem their property in accordance with the mortgage agreement, Greene Mr. Stated:

 

“…equity does not reform mortgage transactions because they are unreasonable but it is concerned to see that essential requirements of such transactions are observed and that oppressive or unconscionable terms are not enforced.”

 

Accordingly, a clause in a mortgage granting a lender a collateral advantage i.e. rights otherwise than the repayment of principal plus interest and costs, will generally be upheld UNLESS it is oppressive, or effectively clogs the right of redemption.

 

In Kreglinger Vs. New Patagonia Meat and Cold storage Co. Ltd[208] the mortgage agreement did provide that a loan to the respondents was to be secured by a floating charge.

 

There was a further stipulation that for a period of five years from the date of the loan the company would not sell sheepskins to persons other than the lenders provided that the lenders paid the best price obtainable.  This agreement was held to be valid; the stipulation was essentially regarded as a collateral contract, which did not form part of the main mortgage transaction.

 

Likewise, in Multiservice Bookbinding vs. Marden[209] the court categorically stated that a collateral provision in a mortgage which does not clog the equity of redemption is objectionable only if unfair and unconscionable.

 

Facts

 

In 1966, the plaintiffs, a small but prosperous company, needed cash to enable them to buy larger premises, costing £36, 000, so that they could expand their business. They approached the defendant, who had £36, 000 available, with a view to obtaining a loan. The defendant told them that he wanted to use the money in a way which would preserve its real purchasing power and would provide security for his retirement. He said that he would be willing to lend them the money provided that their liability to repay the capital and interest was linked to the value of the Swiss franc.

 

An agreement was drawn to this effect and a clause 6 inserted to state that any sum paid on account of interest or in repayment of the capital sum should be increased or decreased proportionately if at the close of business on the day preceding the day on which payment was to be made, the rate of exchange between the Swiss franc and the pound sterling should vary by more than 3% from the current rate as at 7^th September 1966. In the decade which followed the pound greatly depreciated in value against the Swiss franc

 

The question for determination was whether clause 6 was void or unenforceable as being contrary to public policy and whether the terms of mortgage were unreasonable and as such unenforceable.

 

Held;

 

The test of the enforceability of the terms of the mortgage was not whether they were reasonable but whether they were unfair and unconscionable. The court would hold that a bargain was unfair and unconscionable only where it was shown that one of the parties to it had imposed objectionable terms in a morally reprehensible manner. There was nothing unfair, oppressive or morally reprehensible in the terms of the mortgage.

 

The right of redemption may be exercised by:

 

i)               The mortgagor in person or

 

ii)              His assigns or

 

iii)            His executors and any person who may have an interest in the property[210]

 

Where the chargee cannot be found, (under the RLA) the mortgage debt may be paid to the Registrar who will hold it on trust for the chargee and cancel the charge entry in the Register.

 

Where the money is not collected within 6 years (under the RLA) from the date of deposit, it is paid to the consolidated fund.

 

 

6.3.7      Conclusion

 

A mortgagor upon exercising his right of redemption, is entitled to any accession to or improvement on the property taking place during the period of the mortgagee’s possession where the mortgagee had taken possession of the property[211]

 

He must however, pay to the mortgagee his expenses if any, in connection with the improvements provided they were made with his (mortgagors) consent[212]

 

 

 

6.3.8      FURTHER JUDICIAL COMMENTARY ON THE EQUITY OF REDEMPTION

 

It is quite clear that the right of redemption and the equitable right to redeem are the sum total of a mortgagor’s/chargor’s rights.

 

Taken together they are referred to as equity of redemption.

 

Chancellery judges in inventing this right were guided by the following considerations.

 

i)               That those who borrow money on the security of their property are necessitous men who may succumb to unconscionable bargains and oppressive terms.

 

ii)              That lenders of money are principally motivated by the profit motive other than humanitarian concerns or purposes.  Accordingly, they may be inclined to impose strict and exceedingly unconscionable terms upon the borrowers unless they are controlled by equity.

 

 

In Vernon vs. Bethel,[213] for instance the court categorically stated (Per Lord Henley L.C.)

 

“Necessitous men are not truly speaking free men but to answer and present exigency will submit to any terms that the crafty may impose upon them.”

 

In Noakes and Co. Ltd vs. Rice,[214] Lord McNaghten stated that redemption is the very nature and essence of a mortgage.  It is inconsistent with the very nature of a mortgage that it shall be totally irredeemable or that the right of redemption shall be conferred to certain persons or for a limited period or to part only of the mortgaged property.

 

In Samwel vs. Jarrah Timber & Wood Carving Ltd,[215] the mortgagee was by the terms of the mortgage given an option to purchase the security outright within the 12 months following the passage of the contractual date of redemption.  He purported to exercise the said option and the mortgagor sought a declaration that the option was illegal and void in that it purported to exclude his equity of redemption.  In granting the declaration, Lord McNaghten stated:

 

“The directors of a trading company in pursuit of financial assistance are certainly in a very different position from the impecunious land owner in the toils of a crafty money lender”

 

By this statement, Lord McNaghten indicated the fact that mortgage/charge transactions are capitalised in their very nature and that equity only intervened to protect the poor in the society from losing the very source of their livelihood to shylocks.

 

However, that the declaration was granted signifies the great lengths to which courts of equity will go to protect the equity of redemption regardless of in whom that right is vested.[216]

 

RIGHTS OF THE PARTIES IN MORTGAGE AND CHARGE TRANSACTIONS

 

i)     Mortgagor/Chargor

 

They have the right to REDEEM their property simply by repaying the principal amount plus interest as stipulated in the mortgage/charge instrument.

 

Upon defaulting in redeeming their property on the contractual date of redemption (equity and at the moment, statutory law) confers upon them the EQUITABLE RIGHT TO REDEEM their property at anytime before a TRANSFER in favour of the mortgagee/chargee is registered.  As noted this view of the law was staunchly pronounced in Industrial and Commercial Development Corporation vs. Kariuki & Gathecha Resources.[217]

 

ii)  Mortgagee /Chargee

Their rights arise upon the default of the mortgagor/chargor in repaying the principal plus interest.

These rights are essentially, what is generally referred to as the remedies of mortgagees and chargees.

 

These remedies may be in a nutshell, enumerated as follows:

 

i)               Foreclosure; whereby a mortgagee/chargee obtains a court order debarring the mortgagor/chargor from exercising his right to redeem the property.

 

ii)              Judicial sale:  An alternative remedy to that of foreclosure.  The property is simply sold to recover the principal plus interest.

 

iii)            Statutory power of sale; this power accrues where there is a default in repayment of the debt or any part thereof, for 3 months after receipt of notice to repay by the borrower or where some interest is in arrears or where there is breach of some other covenant in the mortgage instrument/under the Act[218]  The property is simply sold by way of a public auction or by private contract.

 

           In exercising his statutory power of sale, the mortgagee/chargee must have in mind

           the fact that the mortgagor/chargor has an interest in the proceeds.[219]

                                      

iv)             Right to take possession of the property in question:  This right however, may only be exercised in the absence of an agreement to the contrary.

 

v)              Right to institute a suit on a personal covenant:  A lender may sue the borrower on the strength of his personal covenant to repay the principal plus interest.  This right may also be exercised even after the property has been sold as held by the court in Kinnard vs. Trollope.[220]

 

vi)             Right to appoint a Receiver; it ought to be noted that once appointed, a receiver is henceforth regarded as an agent of the lender – (in absence of an agreement to the contrary).

 

vii)           Right to consolidate:  where a mortgagee is vested with two or more mortgages he enjoys a right to decline to discharge out of the properties in question unless and until the other mortgages are also redeemed.  This view of the law was approved by the court in the case of Jennings Vs. Jordan[221]

 

The question for determination in this case was whether, where the mortgage on one property was not created until after the equity of redemption in the other property has been parted with, there is as against the purchaser, equity to consolidate the two.

 

Held;

 

The rule that a mortgagee holding mortgages upon two different estates of the same mortgagor may consolidate them, so that one cannot be redeemed without the other, does not apply to a case in which the mortgage of one property was not created till after the equity of redemption of the other property had been parted with.

 

In such a case, the purchaser seeking to redeem is not subject to any equity arising from the acts done by his vendor subsequently to the sale, and there is, as against him, no equity to consolidate the two mortgages.

 

 

This right only arises where;

 

a)     The right is itself reserved in the instrument

 

b)     The legal date of redemption for both or all mortgages has passed

 

c)     Both or all mortgages have been made by one borrower and

 

d)     The mortgages are vested in the same person[222]

 

In Pledge vs. White and Others[223]

 

It was noted that the doctrine of consolidation of mortgages applies where at the date when redemption is sought all the mortgages are united in one hand and redeemable by the same person, or where, after the state of things has once existed, the equities of redemption have become separated. The right to consolidate exists, therefore, notwithstanding that the mortgages which it is sought to consolidate were not united in title with the mortgage sought to be redeemed until after the assignment of the equities of redemption by the mortgagor to the person who seeks to redeem.

 

6.4.0      DUTIES OF CHARGEES AND MORTGAGEES

 

When exercising his statutory power, a chargee/mortgagee has a duty of care to the mortgagor/chargor.  He should act in good faith and not fraudulently.  He should not sell the property at a gross undervalue.

 

It is worth noting that during the sale, the mortgagor/chargor or mortgagee/chargee are allowed by the law to bid for the property.

 

A sale at a public auction transfers to the purchaser the property free from all liabilities over which the transaction has priorities.

 

A properly conducted sale extinguishes the equity of redemption.  This explains why the remedy of statutory sale has been described as a most draconian remedy,

 

Monies raised from the sale ought to be applied in;

 

i)               Discharging all prior encumbrances

 

ii)              Paying all expenses incurred during the sale

 

iii)            Discharging the mortgage debt/charge debt plus any interest thereon

iv)             Discharging all subsequent encumbrances

 

6.4.1      TERMINATION OF MORTGAGES AND CHARGES

 

A mortgage/charge may be terminated by a lender exercising his statutory power of sale/foreclosure or judicial sale.

 

It may similarly be terminated by the mortgagor/chargor exercising his right of redemption.

 

Upon termination the property is RETRANSFERRED to the Borrower /Chargor/ Mortgagor vide a RECONVEYANCE, a REASSIGNMENT, or a DISCHARGE depending on the governing law /statute

 

CHAPTER SEVEN

 

7.0.0. THE DOCTRINE OF SERVITUDES

 

7.1.0      EASEMENTS

 

An easement is defined in section 3 of the RLA as;

“…as a right attached to a parcel of land which allows the proprietor of the parcel either to use the land of another in particular extent, but does not include a profit.”

 

Accordingly, it is thus clear that an easement may be positive or negative in character.  It is positive where it allows/permits the use of another’s land in a particular manner.  It is negative where it restricts the owner from using his land in a particular manner.

 

Essentially, the positive reference in section 3 of the RLA is what pertains to easements.  The negative reference pertains to restrictive covenants.

 

The Indian Transfer of Property Act 1882 fails to define an easement.  This is because in India, they have the easement Act.

 

Easements are overriding interests under section 30 of the RLA Examples of easements are:

-        rights of way

-        right to light etc

 

 

7.1.1      ESSENTIALS

 

There are four essentials to the existence of an easement. 

 

i)               There must be a Dominant Tenement and a Servient Tenement

 

The former tenement is the one for the benefits of which the easement exists and the latter tenement is the one over which the easement is exercisable i.e. the one burdened by the easement.

 

ii)              The Tenements must be owned by different people

 

An easement is essentially a right in alieno solo (in the soil of another). Under no circumstances therefore, can a proprietor have an easement over his own land.  Thus, where a proprietor of two pieces of land passes through one of the two parcels, there is no way he can be said to be exercising a right of way.

 

Accordingly, a person cannot acquire an easement against himself.[224] In such a situation, we talk of a Quasi-Easement.

 

iii)            The Easement must Accommodate the Dominant Tenement

 

A right cannot exist as an easement unless it confers a benefit to the dominant tenement. The test is whether the right makes the dominant a better and more convenient property.

This may be done not only by improving its general utility as by giving means of access or light, but also by benefiting some trade which is carried on on the dominant tenement.

 

The right must be connected with the normal enjoyment of the land e.g. a recreational garden adjoining a residential house; or a public house may have an easement to fix  a signboard to the house next door.

 

iv)             The Easement must be capable of forming the subject matter of a grant.

 

No right can exist as an easement unless it could have been granted by deed. This is to the effect that the owner of a servient tenement should have been lawfully entitled to grant the right claimed and the claimant must be a person capable of receiving the grant.  Thus the right must be certain or ascertainable.

 

All positive rights are capable of forming such subjects.  Negative rights/easements are created by way of special contracts.

 

 

7.1.2.     CREATION OF EASEMENTS

 

i)               Easements are created by way of a GRANT i.e. by an instrument in a prescribed form or by reservation under section 94 of the RLA

 

ii)              Easements may also be created/acquired by ADVERSE POSSESSION pursuant to sections 32 and 38 of the Limitation of Actions Act (cap 22).

 

Process

Twenty years of peaceable open, rightful and uninterrupted user followed by an action instituted in the High Court within two years of the cessation of the user.[225]

 

 

7.1.3.     TERMINATION

 

Section 97 of the RLA enumerates the modes of terminating an easement, viz, by way of

 

i)               A duly executed RELEASE in the prescribed form

ii)              Expiry of time

 

iii)            Occurrence of a condition precedent

 

iv)             A court order

 

Further, where an easement has become obsolete or has ceased to have any practical benefit or where the termination will in no way injure the beneficiary, an easement may be terminated.

 

             

7.2.0 PROFITS A PREDRE

 

A profit is defined in section 3 of the RLA as

 

“A right to go on the land of another to take a particular substance from that land, whether the soil or products of the soil”

 

It is thus quite clear that unlike an easement, a profit entails/imports the taking of something capable of ownership from the servient tenement.  It may therefore exist in gross, be appurtenant to land.

 

The general nature of profit is similar to easements but the two differ since whereas an easement must be appurtenant[226] to a servient tenement and a dominant piece of land, a profit need not be.

 

Accordingly, a dominant owner of a profit enjoys such possessory rights over it that he can maintain an action for trespass/nuisance.

 

However, the owner of an easement can only sue for abatement or proceed on nuisance but never trespass.  Additionally whereas an easement can be acquired by a fluctuating class of people, a profit cannot be so acquired.

 

 

7.2.1      CREATION

 

The ITPA makes no specific provisions for profits/easements thus the common law, as reproduced in the RLA, applies.

 

Accordingly, it follows that profits are created and terminated in a manner similar to easements.[227]

 

Thus a profit may be created vide

 

a)     An express grant or

 

b)     By prescription

 

GRANT

 

Section 96(1) of the RLA provides that an owner of land may grant a profit.  However, the instrument granting the profit must specify how the profit is to be enjoyed i.e. whether in gross or at least in relation to other lands owned by the grantee alone or together with the grantor.

 

Section 96(1) further talks of prescription and the rule the acquisition of a profit (just like an easement) is only effective after registration in accordance with section 96(3) unless it is acquired before the first registration in which case it acquires the nature of an overriding interest pursuant to section 30 (g) of the RLA.

 

7.2.2.     TERMINATION

 

Profits may be terminated vide

 

i)               Unity of seisin wherein there is acquisition of ownership of the servient tenement by the owner of a profit.  Further, where the profit is appurtenant to land it may be terminated vide the unity of both tenements.

 

ii)              Release:  This must be in writing and duly executed.

 

iii)            Alteration of the Dominant tenement:  This is only effective where the profit is appurtenant to land and there occurs an irrevocable alteration in the nature of the dominant tenement.  The effect is to raise a presumption in favour of extinction.

 

 

7.3.0      RESTRICTIVE COVENANTS

 

They may be referred to as negative easement[228]

 

a restrictive covenant is the restricting of the building on or the user or other enjoyment of one piece of land for the benefit of the proprietor of another land.

 

Restrictive covenants, essentially being easements may arise as follows:

 

i)               in a Landlord/Tenant situation or

ii)              between owners of adjoining fee simple absolute estates.

 

In these circumstances, their creation, enforcement and extinguishment are governed by the ordinary law of tenancies in the former and by the law of contract in the latter.

 

The agitating issue is whether or not restrictive covenants ought to be enforced by courts of law.

 

This issue becomes especially more vexing in circumstances wherein there is no privity of contract or of estate.

 

It ought to be noted that as a general rule, restrictive covenants cannot be created by parole[229]

 

Even under the ITPA, the law is that transactions giving rise to restrictive covenants must be by way of a Deed.  This position is a function of the common law rule laid down in the case of Tulk v Moxhay[230] as it applies to ITPA transactions.

 

Under the RLA section 95(3) thereof, a restrictive covenant may only be created vide a registered instrument.  Further, any restrictive covenant that is discriminatory in nature is invalid ab initio.   A similar position obtains under the ITPA[231]

 

All the same, under the RLA and ITPA restrictive covenants remain to be the only exceptions to the rule that any condition in a transfer which is repugnant to that interest is void.

 

7.3.1      ENFORCEMENT OF RESTRICTIVE COVENANTS

 

The vexing question is whether restrictive covenants ought to be enforced beyond the application of the ordinary rules of the law of contract.

 

This issue acquires a more agitating character where there is no privity of estate.

 

In Spencer’s case[232] it was held that both benefits and burdens of such a covenant will run at law and in equity only if the covenant is one that touches on and concerns the land of the covenantee and if the nature, quality or mode of user of the land in question would be affected by the observance or service of such a covenant.  It is not enough that some personal advantages may be derived from the covenant.

 

Accordingly, it is quite clear that where there is privity of estate both the burdens and benefits will run of law and in equity provided they touch and concern the land. But where there is neither privity of contract nor privity of estate, the burden of a restrictive covenant touching and concerning land will run with the land in equity only.  This second limb of the rule pertaining to the enforcement of restrictive covenants was enunciated in Tulk v Moxhay[233]

 

Restrictive covenants, provided they are for the beneficial enjoyment of another piece of land[234] are thus enforceable between a vendor and a purchaser.

 

Similarly, under section 40 of the ITPA, the benefit and burden of a restrictive covenant for the beneficial enjoyment of immovable property runs with the land.

 

Under section 95 RLA, restrictive covenants must be noted against the registers of the affected plots otherwise they cannot be enforced.

 

But if they are noted and are otherwise valid, both benefits and burdens pass with the land

 

Section 95(3A) provides that the notification of a restrictive covenant in the register will not of itself make such an agreement valid if it were otherwise not valid.

 

Restrictive covenants are extinguished in the same manner as easements and profits.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

CHAPTER EIGHT

 

8.0         OTHER FORMS OF PROPRIETORSHIP IN LAND

 

 

8.1        Concurrent Ownership

 

This arises where two or more persons have a simultaneous and not a consecutive interest in the same land at any one time.

 

Accordingly, concurrent ownership of property rights in land or interest therein is essentially co-ownership in common parlance.

 

There are two main types of co-ownership viz:

 

a)     Joint tenancy

 

b)     Tenancies in common.

 

8.1.1      JOINT TENANCY

 

A gift of lands to two or more persons in joint tenancy is such a gift that imparts to them, with respect to all other persons than themselves, the properties of one simple owner. Each joint tenant holds nothing by himself and yet holds the whole together with the other.

 

This is created when there is

 

i)               Unity of title

 

ii)              Unity of possession

 

iii)            Unity of interest

 

iv)             Unity of time

 

These four unities must exist concurrently and all must be vested in more than one person.

 

Essentially this is the common law rule.   However, in Kenya, the rule is statutory[235]

 

 

 

 

i)               Unity of Possession

 

In a joint ownership/tenancy, each of the proprietors is entitled to possession of every portion and the whole of the land. The land is not divided into parts with specified parts belonging to a particular person.  Rather, the property is owned by the two/more proprietors globally.

 

ii)              Unity of interest

 

The period and nature of the interest of the holders must be one or the same.  It accordingly follows, therefore, that there can be no joint ownership where one holds a lease and the other holds the fee simple/absolute proprietorship interest. Thus, a conveyance of dispositions in a joint ownership/tenancy may be made only by both or by all of the joint proprietors[236]

 

iii)            Unity of Titles

 

The title of the joint owners must be created by the same instrument or Act.

 

iv)             Unity of Time

 

The interest of both proprietors or all of them, must have vested at the same time.

 

8.1.1.1 CONSEQUENCES THEREOF

 

The most important consequence of joint tenancy is that the right of survivorship (jus accrescendi) arises

 

Essentially, this means that upon the death of one of the Tenants/Proprietors, his/her share(s) devolves to the other i.e. the surviving proprietor, automatically and as a matter of law and not to his personal representatives[237]

 

Whether the surviving proprietor takes everything or nothing depends upon whether or not he is the last joint tenant to die.

 

The RLA further requires that proof of death of a joint proprietor must be produced to the Registrar in order to effect the devolution.[238]

 

Where both proprietors die in circumstances giving rise to a situation wherein it cannot be established which of them died first, section 43 of the Law of Succession Act[239] raises a presumption as to the order of deaths i.e. order of seniority or age.  The younger will be held to have survived the older.

 

This is essentially a reproduction of the presumption of survivorship i.e. commorientes.  As a provision, it is similar to section 184 of the Law of Property Act 1925 of England

 

This presumption only arises or rather is only called into question where it is uncertain which of the deceased persons died first i.e. survived the other for instance, where they both disappear while at the high seas.

 

In Hickman and Others vs. Peacey and Others[240]

 

 Sec 184 of the Law of Property Act 1925 was referred to, which provides that where two or more persons have died in circumstances rendering it uncertain which of them survived the other or others, such deaths shall (subject to any order of the court) for all purposes affecting the title to property, be presumed to have occurred in order of seniority.

 

In view of the uncertainty of which of the deceased survived the other or others, the presumption under Sec 184 should be applied and the elder of the deceased must be deemed to have died first.

 

8.1.1.2 TERMINATION

 

Joint tenancies are terminated by way of the severance of the interest jointly owned.

 

Section of 102(3) of the RLA provides in connection to severance:

 

“any joint proprietors not being trustees, may execute an instrument in the prescribed form signifying that they agree to sever the ownership and the severance shall be completed by registration of the joint proprietors as proprietors in common and by filing the instrument.”

 

 

8.1.2      TENANCIES IN COMMON

 

The proprietorship is of separate but undivided shares in the land pursuant to section 103(1) of the RLA.

 

Thus, tenants in common have quite separate interests. The only fact that brings them into co-ownership is that they both have shares in a single property, which has not yet been divided among them. No one can therefore say which of them owns any particular parcel of land.

 

There is no right of survivorship.

The size of each tenants share is fixed once and for all and is not affected by the death of one of his companions. When a tenant in common dies, his interest passes under his will or in intestacy, for his undivided share is his to dispose off as he wishes.

 

For a tenancy in common to arise there is only one requirement i.e. unity of possession the rest of the unities essential for a joint tenancy are not required.eg the unity of interests may be absent and the tenants may hold unequal interests.

 

However, a proprietor in common cannot deal with his undivided share in favour of any person other than the other proprietor(s) unless of course with his/her/their consent, which must not be unreasonably withheld.

 

8.1.2.1 TERMINATION

 

A Proprietorship in common ceases on partition or sale

 

Generally, partition is effected on the application of any one or more of the proprietors or of any person in whose favour an order has been made for the sale of an undivided share in the land in execution of a decree.

 

It is completed by closing the register of the unpartitioned parcel and opening registers for the new parcels pursuant to section 104 of the RLA.

 

The registrar may where partition is not possible order sale.  In this case, a proprietor in common is entitled to purchase the land either at the auction or at any time vide a private treaty[241]

 

CHAPTER NINE

 

9.0         LEASEHOLDS AND LICENCES:  A BRIEF OVER VIEW

 

9.1         LEASEHOLDS

 

The peculiar nature of leasehold interests has been demystified in the early stages of this work.

 

In this instance, we shall canvass the right of the parties in a leasehold grant transaction.

 

9.1.1    DEFINITION

 

A lease is the grant of a right of exclusive possession over a defined piece of land for an ascertained or ascertainable period[242] of time.

 

Accordingly, it is quite clear that a lease must have four essential traits

 

9.1.2      ESSENTIALS FOR THE VALIDITY OF A LEASE

 

For a lease to be valid, it must;

 

i)               Confer a right to exclusive possession

 

ii)              Relate to defined premises

 

iii)            Pertain to a definite period or to a period though not ascertained, is capable of being so ascertained.

 

The essence of these essentials is as outlined hereunder.

 

a)     Exclusive Possession:  The tenant must acquire the right of exclusive possession to the exclusion of the Landlord and all persons claiming through him.

 

This view of the law was laid down in the case of London & North Western Rail Co vs. Buckmaster[243]

 

However, this does not mean that where a person is let into exclusive possession he necessarily becomes a tenant.  As a matter of fact, such a person only acquired the personal privilege of occupation in the nature of a licence, which may be revoked pursuant to any implied or express term of the grant.

 

 

In Runda Coffee Estates vs. Ujagar Singh[244]the court stated thus,

 

The expenditure of money by a person on another’s land in expectation, by reason of a representation made by the owner of the land, of being allowed to occupy that land, gives rise to an estoppel precluding the owner from giving any evidence of an act which would terminate that occupation except in accordance with the representation. This right to continue in occupation, however, creates no title in the land and the right is co-extensive with and dependant upon a clear and unequivocal representation.

 

b)     Defined Premises/Interest:  The grant of a lease must pertain to a definite interest in land which is capable of being the subject of an assignment.

 

c)     Defined Premises/Land:  There can be no lease unless the property in question is defined or capable of being defined.

 

In Heptulla Brothers Ltd vs. Jambhai Jeshangbhai Thakore[245]

 

The basic issue was whether, in view of the terms of the document, which purported to be a registrable lease, the appellants were tenants or licensees in respect of that part of the shop, which they occupied.

 

Held;

 

No tenancy was ever created by or in reference to the document because the premises intended to be let could never be ascertained with sufficient precision.

 

d)     Period certain/definite: The period of the lease must be defined or capable of being defined.  It must have defined frontiers i.e. a beginning and an end.

 

Lord Denning, M.R in Harvey vs. Pratt[246]stated thus,

 

It has been settled law for all my time that, in order to have a valid agreement for a lease, it is essential that it should appear, either in express terms or by reference to some writing which would make it certain or by reasonable inference from the language used, on what day the term is to commence.

 

However, where the date of commencement or the date of expiry of the lease is not certain, the transaction is void.

 

For instance, where a house was let for the “duration of the war” it was held that the agreement did not give rise to a lease for want of certainty of the period intended. This was the court’s position in,

 Lace vs. Chandler[247]where it was stated that,

 

Per Lord Greene, M.R.,

 

The parties in the rent-book agreed to a term expressed by the words “furnished for duration”- which must mean the duration of the war. The question immediately arises whether a tenancy for the duration of the war creates a good leasehold interest. In my opinion, it does not. A term created by a leasehold tenancy agreement must be a term which is either expressed with certainty and specifically, or is expressed by reference to something which can, at the time when the lease takes effect, be looked to as a certain ascertainment of what the term is meant to be. It is important to observe that where the term is capable of being rendered certain, it must be so “before the lease takes effect.”

 

9.1.3      SOME BASIC CONCEPTS IN LEASEHOLD TRANSACTIONS

 

i)     LEASEHOLD

 

Essentially, the term leasehold refers to the bundle of rights that are contained in a lease.  The concept refers to the quantum of interests inherent in a lease.  A lease generally, means the transaction which confers a leasehold interest.  It also sometimes refers to the document embodying the whole transaction.

 

A lease may also be created orally i.e. an oral lease.

 

ii) TENANCY

 

This term refers to the conditions under which a tenant holds a lease.  Thus whereas the term lease may in its other sense refer to the quantum, tenancy refers to the tenure implications of the quantum of interests.

 

 

iii) PARTIES

 

In any leasehold, there is a lessor and a lessee or Landlord and a tenant

 

A leasehold interest is a fixed period estate and accordingly can never be freehold.

 

Generally, a lease is curved out of freeholds & large estates.  It may also be created out of an absolute estate or even a customary estate.

 

A sublease may be created out of a leasehold estate and there is nothing in principle to prevent the arrangement from going further down as long as that which is being created is smaller than that from which it is being carved out.

 

iv)  Formal validity

 

It flows from the technicalities surrounding leases i.e. leases must be in prescribed forms, executed and registered.  These are usually statutory prescriptions.

 

v)  Essential validity

 

These are generally matters of substance, which determine whether an instrument/transaction alleged to be a lease is or is not a lease.

 

9.1.4      CLASSIFICATION OF LEASES

 

Leases are of different types:

 

i)               Fixed Period Lease

 

This is a lease the duration of which is expressly fixed vide the agreement hence the term fixed.  The length of the term is generally irrelevant as long as it is presented that the lease commences on a particular day and expires on another day.

 

A fixed period lease must take effect immediately, which must be interpreted to mean that the interest leased must vest immediately but does not mean that possession is to be taken at the same time.

 

Section 51 of the RLA (Cap 300) provides that reversionary leases are perfectly valid. Thus, a lease can be created from period A to B and a second lease to commence thereafter.  However, the interest must vest immediately though possession may not take place immediately.

 

Under the RLA, a Reversionary lease must be registered, whereupon it vests immediately.

 

Further, a reversionary interest must vest within 21 years failure to which the lease becomes void.  This provision has effectively abolished the doctrine of INTRESSE TERMINI, a common law doctrine that held that before a tenant entered into possession he only held an interest in the term and not an estate.  Accordingly, such a tenant could not transfer the lease.[248]

 

The moment the interest vests, the tenant can create a sublease or mortgage the interest as long as it’s registered.

 

All fixed period leases take effect from the date fixed for the commencement though actual entry may be postponed.

 

Section 51(2) of the RLA provides, with respect to reversionary leases, that any instrument purporting to create a lease which is to vest after 21 years is void.

 

There are no provisions in the ITPA pertaining to reversionary leases.  Accordingly, the provisions of common law apply.  At common law, Reversionary leases have always been valid the period notwithstanding.  Under the ITPA, the 21 years rule is not mentioned hence possession may be postponed but not the vestiture of the interest because if that occurs then the common law rule against perpetuities may be infringed.  The rule against perpetuities ensures that interests in property vest within reasonable time.  The vesting of interests can only be postponed for a life in being and 21 years i.e. the life in being is named plus 21 years.  Thus under the ITPA, reversionary leases may be created as long as they don’t infringe the rule against perpetuities.

 

ii)              Periodic Leases

 

A periodic lease is one which continues indefinitely from one period to another and the maximum period is one year or less.  It continues indefinitely until active steps are taken to determine it.

 

Thus, a periodic lease is not a fixed period lease for it is usually not known when it’s going to determine.

 

Section 2 of the RLA defines a periodic lease as a tenancy from year to year, half year to half year etc which may be indefinite until determined.

 

Such a tenancy can be created by express agreement i.e. vide a contract or by implication.

 

If created expressly, the lease will run effectively until termination by either of the parties.

 

By implication: A periodic lease is created by implication pursuant to the following statutory provisions;

 

a)     Under section 106 of the 1882 ITPA and section 46(1) of the RLA, if a proprietor permits another party into exclusive occupation of his premises at a rent it automatically gives rise to a periodic tenancy.

 

It is not specified for what period the rent will be paid.

 

Section 106 ITPA (1882) states that if its created for agricultural industrial or any other purpose, the period of the subsistence of the lease will depend on period with reference to which the rent is paid i.e. if the rent is paid on a yearly bases, the period of the tenancy shall be year to year.

 

b)     In any situation wherein the term of the lease is not specified and nothing is stated about the period of notice required/necessary to terminate the lease/tenancy.

c)     In any circumstances wherein a fixed period tenant decides to hold over and the landlord continues to accept rent payments, a periodic tenancy is created.[249]

 

d)     Under section 11(3) of the RLA, a right of occupation under African Customary Law if entered under the Adjudication register creates a periodic Tenancy capable of running from year to year.

 

iii)            Future or Reversionary Leases/Tenancies

 

These have been adequately discussed under fixed period leases.

 

iv)             Tenancy at will

 

A tenant at will is a person who takes possession as a tenant on condition that either party may terminate the relationship at any time.  There is no guarantee that the tenant will stay there for any specific period.

 

This sort of situation is quite common at the irrigation schemes where most people hold temporary occupation licenses,

 

The position of a tenant at will is quite tenuous.  Such a tenant may not commit an act which is inconsistent with the terms of the tenancy as for instance, the creation of a sub lease.  If such a tenant attempts to do so, the tenancy becomes void.  Further, since he is in occupation temporarily, he cannot commit waste of whatever kind.

 

v)              Tenant at Sufferance

 

A tenant at sufferance is one who has entered the landlords premises with permission but remains there without the same.  For instance, he may commence as a fixed period tenant and proceed to be a tenant at sufferance.

 

He can be ejected at will by the landlord.  However, he is not a trespasser though he remains on the premises without permission.

 

9.1.5      LEASEHOLDS AND PREMIUMS/RENT:  WHATS THE CONNECTION?

 

Pursuant to section 105 of the ITPA (1882), a lease is required to be made in consideration of a premium or rent.

 

A premium is a price paid LUMPSUM as a consideration for the grant of a lease, while rent is a periodical payment during the subsistence of the lease for the use of the land/premises.  In practice, rent is the main factor.

Distinction

 

The stamp duty payable with regard to premiums is higher than that applicable to rent.

 

However, under the RLA a lease may be granted with or without consideration.

 

9.1.6      THE RIGHTS AND OBLIGATIONS OF THE PARTIES TO A LEASE

 

These may be either expressly stipulated in the lease agreement or they may be implied by the statutes vide sections 108 of the ITPA and 58 of the RLA generally.

 

a)     Tenant’s Right (Lessor’s Obligations)

 

In a nutshell, these may be listed as follows:

 

i)               To have quiet enjoyment of the premises

 

ii)              Not to suffer any derogation from the grant.

 

iii)            The Landlord to ensure that the premises are fit for habitation.

 

iv)             To have the premises repaired by the Landlord.

 

v)              To be made aware of any material defects in the demised premises by the Landlord.

 

 

b)     Tenant’s Obligations (Rights of the Landlord)

 

Listed seriatim, these are the obligation to:

 

i)               Pay rent

 

ii)              Pay any rates and taxes

 

iii)            Repair demised premises where required.

 

iv)             Repair/replace furniture (where the premises are let furnished)

 

v)              Not to sublease/transfer or charge demised premises (unless the consent of the Landlord is obtained first)

vi)             To allow the Landlord to visit and view the premises at all reasonable times and with reasonable notice.

 

 

9.1.7      ENFORCEMENT OF OBLIGATIONS AND RIGHTS UNDER LEASES

 

i)     By the landlord

 

Where the tenant has breached his obligation to pay rent, the landlord may enforce the covenant by:

 

a)     Distraining for rent pursuant to the provisions of the Distress for Rent Act (Cap 293)

 

This is done by removing certain goods from the possession of the tenant in order to compel him to pay the rent due.  If the tenant fails to do so, after the property has been seized, such property may be sold vide a public auction.

 

b)     An action for Recovery of the outstanding arrears of rent.

 

c)     By forfeiting the lease.

 

ii)    By the Tenant

 

Where the Landlord has violated/breached his obligations under the lease, (implied or express), the tenant may enforce his rights by instituting proceedings for an injunction and/or damages or where the Breach is quite extensive by repudiating the lease altogether.

 

9.1.8      TERMINATION OF LEASES

 

In a nutshell, leases may be terminated by;

i)               Notice

 

ii)              Effluxion of time

 

iii)            Surrender, this may be implied or express

 

iv)             Forfeiture

 

v)              Frustration

 

vi)             Merger

 

 

9.2         LICENCES

 

A licence is that which allows a licencee to enter upon the land of another in circumstances under which the said entry would amount to trespass to Land without the consequential permission.

 

Essentially, a licence makes lawful that which would have been in other circumstances unlawful.

 

It is effectively the smallest estate known to the law of property in land

 

However, due to its inherent nature, a licence can never be sufficient to pass an interest or an estate in land to the licencee.

 

The RLA[250] and the ITPA are quite silent on the properties of the licence.  However the lacuna is adequately filled vide recourse to the rules of common law at least in so far as the same is applicable having regard to the obtaining circumstances in Kenya.

 

All licences may be created expressly or by implication.  The RLA in section 100(1) provides that on a without prejudice basis, to Section 131 of the same Act, a licence is not capable of being registered.

 

Accordingly, it is quite evident that a licence is incapable of conferring any proprietary interest to the holder.

 

9.2.1      CLASSIFICATION OF LICENCES

 

A licence may be either;

 

a)     A contractual licence

 

b)     A simple or bare licence

 

c)     A licence coupled with interest

 

i)               Simple/Bare License

 

This licence is given gratuitously and is not coupled with any grant of interest.  It is generally revocable by the licensor at will as was held by the court in the case of Armstrong V Sheppard & Short Ltd[251]

 

This class of licence is recognized by the RLA in addition to c contractual licence vide section 3 thereof which defines a licence in such a manner as to exclude a lease or an easement which are interests.

 

It may be revoked expressly or by conduct sufficient enough to indicate revocation of the permission to be present on anyone’s land.

 

 

ii)              A contractual License

 

This is a licence for value and is the sort of a licence which is common, for instance, where one buys a ticket from another so as to view a performance.

 

At common law, such a licence was revocable at any time but in equity, it is irrevocable for as long as the parties intended or until terminated by notice prescribed for such.

 

In Hurst vs. Picture Theatres Ltd[252]

 

The plaintiff entered a cinematograph theatre belonging to the defendants, paid for a seat, entered the auditorium, and was shown to a seat. Later, servants of the defendants alleged that he had not paid, requested him to leave the theatre, and, when he refused, removed him by force. In an action by the plaintiff claiming from the defendants damages for assault and false imprisonment;

 

Held

 

It was held that the plaintiff paid his money to enjoy the sight of a particular spectacle during the time that spectacle lasted. The license to enter the defendants’ premises was only given to him to enable him to see that spectacle, and, therefore, the right to enter those premises was a license coupled with a grant, and was irrevocable. Alternatively, there was a term implied in the license that it would not be revoked until the spectacle was ended, and therefore the plaintiff was entitled to succeed.

 

iii)            License coupled with interest

 

A licence coupled with interest i.e. an easement, cannot be revoked for as long as that interest with which it is coupled with subsists.[253]

 

Evidently, a licence coupled with an interest is the more superior sort of a licence.

 

Generally, however, regardless of the sort of a licence one holds a licence is entitled to quite possession for the purposes for which he was granted the entry.

 

ASSIGNMENTS

 

The law is that unless a licence is coupled with interest, it cannot be assigned. A licence will at most confer only contractual rights and never proprietary rights, unless of course, it is coupled with an interest.  Thus, the licencee’s rights are rights in contract and not property.  Accordingly the said rights and to an extent duties only binds the parties to the contract and not third parties.

 

Thus, a Bona fide purchaser for value with/without notice is not affected nor concerned with a licence pertaining to the land.

 

Section 100(2) of the RLA, cap 300 provides that a licence relating to use or enjoyment of land is ineffective as a valuable consideration unless the licencee has protected his interest by lodging a CAUTION.

 

iv)     License by Estoppel

 

It is an amorphous class of licences as is adequately demonstrated by the decision of the court in the case if Inwards Vs. Baker,[254] where the court stated that if one is granted a tenancy in circumstances whereof and the conduct of the parties show that what was intended was that the occupier should be granted a personal privilege of occupation and not a tenancy or an interest in land, he will be held to be a licensee.

 

Facts

 

In 1931, the defendant was considering the building of a bungalow on land which he would have to purchase. His father, who owned some land, suggested that the defendant should build the bungalow on his land and make it a little bigger. The defendant accepted that suggestion and built the bungalow himself, with some financial assistance from his father, part of which he had repaid. He had lived in the bungalow ever since. In 1951, the father died. The trustees of his will, who in fact visited the defendant at the bungalow, took no steps to get him out of the bungalow until 1963, when they claimed possession of it on the ground that, at the most, the defendant had a license to be there which had been revoked.

 

Held;

 

Since the defendant had been induced by his father to build the bungalow on his father’s land, and had expended money for that purpose in the expectation of being allowed to remain there, equity would not allow the expectation so created to be defeated, and accordingly, the defendant was entitled to remain in occupation of the bungalow as against the trustees.

 

For an estoppel, strictly so called, to arise there must normally have been a representation of existing fact, as distinct from a promise de futuro. However, a representation of existing fact is not an essential element in the type of equitable estoppel now often described as ‘promissory estoppel’.

 

Courts of equity in evolving the doctrine of estoppel, have inclined to making a positive approach to the problem and to viewing the equity as compelling a representor to ‘make good’ his representation.

 

This concept of ‘making good’ representations, fits with the doctrine that when a man, under an expectation encouraged by a landlord, had expended money on the landlord’s land, a court of equity would compel the landlord to give effect to the expectation.[255]

 

 

9.2.2      LICENCES AND LEASES; PROBLEMS

 

The distinction between a licence and a lease is quite elusive.  This state of affairs explains/accounts for the large number of cases calling for judicial determination.

 

Essentially, a lease is a definite interest in land which can be sub-let or assigned.  A lease also survives the parties.  It is an estate in land.  On the other hand, a licence cannot be assigned unless it is coupled with an interest i.e. an easement

 

Essentially, whether an agreement is a lease or a licence will depend on the intention of the parties and the circumstances of each case, including the nature of the suit premises and the terms of the agreement.

 

Because a licence is insufficient to pass an interest in land, it need not be made by deed or any other hand, a lease ought to preferably in writing and registered.  In some instances, it must be in a form prescribed by statutory provisions.

 

The definition of a licence by Vaughman CJ in the case of Thomas Vs Sorrel[256] suffices to identify the beacons which set apart a licence from a lease.  His lordship categorically, defined a licence to be

 

“…a dispensation or licence properly passeth no interest nor alters or transfers property or anything but only makes an action lawful, which without it would have been unlawful”

 

On the other hand, a lease passes an interest in land and is capable of transferring property.

 

 

CHAPTER TEN

 

10.0       THE DOCTRINES OF EMINENT DOMAIN AND ADVERSE POSSESSION

 

The state may in certain prescribed cases compulsorily acquire the possession of property of any description provided the pre-conditions set out by section 75 of the Constitution of Kenya are satisfied.[257]

 

These pre-conditions are;

 

i)               That the property is required for public benefit

ii)              That on a balance of convenience, the benefit accruing to the public generally does justify the concurrent hardship.

iii)            That upon the compulsory acquisition of the property from the individual, there must be a prompt payment of full compensation to the property owner.

 

10.1       COMPULSORY ACQUISITION OF PRIVATELY OWNED LAND

 

The Land Acquisition Act[258] which is modelled by the Indian Land Acquisition Act of 1894 is the machinery designed to facilitate compulsory acquisition of private land.

 

This Act categorically does empower the commissioner of lands upon due notice[259] in the Kenya Gazette and upon the payment of full compensation to all persons having an interest in the property to acquire any piece of land which the minister is satisfied that it is required for public use.

 

In The Commissioner of Lands & The Minister for Lands and Settlement vs. Coastal Aquaculture Ltd[260] ,

 

The Commissioner of Lands published a gazette Notice No.3590 under the heading “Intention to Acquire land”, in pursuance of section 6 (2) of the Land Acquisition Act to acquire land which belonged to Coastal Aquaculture Ltd. He also gave notice of the date when an inquiry would be held. The plaintiffs (now the defendants) objected stating that the notice did not comply with S.9 (1) of the Act and it was defective as it neither named the public purposes for which the land was acquired nor the body acquiring the land and that no purpose was shown that would justify the hardship that would be caused to them.

 

Held;

The acquisition under S. 6 (2) of the Act must reflect the material contents of the Minister’s Certificate, in other words, the name of the public body for whose purpose the land is being acquired and the public purpose thereof. For a successful compulsory acquisition, the requirements of the Constitution and the Act must be strictly complied with. The notices,. Therefore, were defective, invalid and consequently, the inquiry was outside the area of jurisdiction of the Commissioner.[261]

 

In Kigika Developers Ltd vs. Nairobi City Commission[262],

 

The plaintiff purchased a piece of land in Nairobi with the intention of developing it. The defendant, which was charged with the functions of a local authority, took over the plaintiff’s land for its own public purposes without following the procedure provided in the Land Acquisition Act for doing so.

 

Held; Shields J

 

This type of semi forcible dispossession is not a new thing in Kenya and the courts have found a remedy for it. The Courts treat the unlawful acquisition as a compulsory purchase and award damages as though the land had been acquired under the Land Acquisition Act (Cap 295) that is the market value of the Lands and an additional 15% of that value.

 

This method of dealing with compensating this wrong was decided upon by the late Mr. Justice Chanan Singh in New Munyua Sisal Estates Ltd vs. Attorney General[263]

 

The basis for assessing compensation was defined in,

 

Kanini Farm Ltd vs. Commissioner of Lands[264] where the appellant’s land was compulsorily acquired by the government under the Land Acquisition Act (Cap 295). The appellant challenged the compensation awarded on grounds that it valued the property as agricultural land when there had been a change of user to residential and that some of the recipients of the compensation were trespassers of the land.

 

Held; Nyarangi J

 

The market value as a basis for assessing compensation is the price that a willing seller might be expected to obtain from a willing purchaser. The changes of user from agricultural to a residential character was approved before acquisition, therefore, it was fair and just that the property should be treated as residential in assessing compensation. In addition, in determining the amount of compensation, which ought to be paid, the court should take into account comparable sales and awards on other acquisition of land of similar character. With regard to the recipients of the compensation, an inquiry to determine the persons interested in the land must be held as required by Section 9(3) of the Act.[265]

 

Every person who has an interest has direct access to the High Court for the determination of his interest in the property compulsorily acquired, the legality of the acquisition and the prompt payment of full compensation[266]

 

The principles of compulsory acquisition of land and locus standi i.e. whether members of the public have a right to question the propriety of dealings in public land where land is vested in a local authority to hold in trust for the public were stated in extenso in the case of  Mohammed vs. Commissioner of Lands & 4 others[267]

 

Facts;

 

Niaz Mohamed Jan Mohamed had at all material times been the registered proprietor of all that freehold property known as plot No. 32 section 1 Mainland North, Kisauni in Mombasa. During the construction of the new Nyali Bridge in 1979, it became necessary to construct a new access road to Kisauni and Nyali Estate. When the road was surveyed, it traversed plot No.32 amongst others and therefore, the Land Acquisition Act was invoked to acquire the areas traversed by the road. With respect to plot No. 32, it was considered that an area of approximately 0.37 of an acre would be covered by the road and therefore, machinery was put in place to acquire the portion.

 

 After the construction of the road, Niaz enjoyed a road frontage and direct access to that road until November 1995 when it is alleged that the Commissioner of Lands, with the connivance, consent or knowledge of the Municipal Council of Mombasa created a new leasehold title from a small portion which remained uncovered by the tarmac road and allocated it to the 3^rd, 4^th and 5^th defendants. Niaz saw this as an attempt to interfere with his easement rights of access to the new road and its road reserve, and also an attempt to unlawfully alienate public land to private developers. He filed a suit against the defendants and filed an application for an injunction to prohibit the defendants from developing or dealing in the suit land until the determination of the case.

 

It was contended for the 3^rd, 4^th and 5^th defendant that the suit land was vested in the government and could be dealt with by the government under the GLA and the remaining portion was not a road reserve. In any event, it had become registered and could only be challenged on grounds of fraud and misrepresentation. Furthermore, the Public Roads and Roads of Access Act[268] and the Streets Adoption Act[269] did not have any application to the suit land and the applicant had not fulfilled the conditions for the grant of an order of injunction. The defendants also contested the locus standi of the applicant to bring the suit on behalf of the public.

 

Held: Waki J.

 

The parameters within which the court must determine an application of this nature is clearly set out in the Giella vs. Cassman Brown case. The court must be satisfied that the applicant has a prima facie case with a probability of success and that he would suffer irreparable injury, which is uncompensable in damages; and if the court is in doubt then it has to consider the balance of convenience.

 

There is no right of compulsory acquisition of land by the government for purposes other than those provided for by the Constitution of Kenya at section 75. That spirit is carried forward in the Land Acquisition Act itself, particularly in section 6.

 

The court is not persuaded that upon compulsory acquisition of land and the consequent vesting of that land in the government, then the land falls to be used by the government in any manner it desires. There is plainly no such carte blanche intended in the provisions of the law. The land must be used subsequent to the acquisition, for a lawful purpose, and the only lawful purpose is the one for which it was acquired.

 

The land in issue was acquired for a specific purpose which is consonant with the Constitution and the Land Acquisition Act, namely for the construction of a public road. It matters not that the entire portion was not used for that purpose. Unutilized portions in the court’s view would remain as road reserves.

 

Since the acquisition was done for making a public road or street, the land vested in the local authority, the Municipal Council of Mombasa, to hold in trust for the public in accordance with the law. This included the portion usually utilized for the tarmacked road and the remaining portions, which form part of the road reserve. Neither the Local Authority nor the Government under the GLA can alienate such trust land.[270]

 

It is noteworthy that section 75(7) of the constitution does effectively exempt property owned wholly by Government corporations formed for public purposes from compulsorily acquisition.

 

10.2       THE DOCTRINE OF ADVERSE POSSESSION

 

This doctrine, coupled with the doctrine of lapse of time, constitute what has come to be known in law as the doctrine of limitation.

 

Generally, the policy issues behind the doctrines of limitation and adverse possession are complimentary and may be stated as follows:

i)               That where an occupation of property occurs which is adverse or inconsistent with the right of the true or legal proprietor of the same and;

 

ii)              That where occupation is continuous for quite a long time, then a rebuttable presumption does arise to the effect that either the Adverse possessor (i.e. the Trespasser) is the true owner of the Land or alternatively, that the true owner (proprietor) has abandoned the land.

 

Accordingly, Adverse possession has the effect of debarring the right of the proprietor of the land in question and thus effectively CONVERTING the ADVERSE POSSESSOR into the legal owner.  A further effect of the operation of this doctrine is to DEPRIVE the legal proprietor/owner of his right to bring an action in a court of law for possession of the land/property in question.

 

The doctrine of limitation/adverse possession is cruxed on the equitable maxim

“equity aids the vigilant and not the indolent” which simply means that those who sleep on their claims/rights shall not be entitled to the assistance of the courts to recover their property[271]

 

At common law, if after 20 (twenty) years the true owner failed to assert his rights (as against the adverse occupier/possessor) he was;

 

i)               Debarred from bringing an action to recover the land and/or

 

ii)              Divested of certain rights over the land.

 

This essentially codifies the concept of PRESCRIPTION whose basis was a PRESUMPTION that where a person was in undisturbed enjoyment of a right and he was not in possession as a result of some unlawful act viz

“omnia presumunter rite et solemniter esse acta”

Translated, it means, “all acts are presumed to have been done rightly and regularly”

 

Thus a claimant relying on the concept of prescription to establish title to land had to show that he had used the land peaceably and as of a right, his occupation of the land in question must have been nec vi, nec clam, nec precario (without force, without secrecy, without permission)

 

Further, such a claimant had to show that the said occupation had lasted continuously and without interruption for not less than 20 (twenty) years.

 

English statutory law has however, limited this period to twelve (12) years.  Thus where one occupies and adversely for twelve (12) years, which occupation is nec vi, nec clam, nec precario and continuous and uninterrupted, the true owner is debarred from instituting land recovery proceedings in court against the occupiers.

10.3       THE KENYAN POSITION

 

The Limitation of Actions Act[272] effectively combines the two English positions.  It provides for different periods of time after which the true owner is barred from instituting a land recovery claim against the adverse possessor.

 

A twelve (12) years limitation period is provided for subject, however, to the provisions pertaining to disability of the true owner.[273] By dint of section 7, upon the expiry of twelve years from the date upon which a right in land is alleged to have arisen, a claimant cannot bring an action to enforce the same. The effect of this section is to bar the right of a claimant from being enforced.

 

The effect of section 13 of the Act is to enable a person in possession of land in an adverse manner to resist an action for recovery of the said land although the right is stated not to accrue unless at the date on which it is alleged to have arisen, another person was in possession of the land in a manner that could be said to be adverse.

 

It is note worthy that under section 30 of the RLA (Cap 300) a person has an overriding interest in land during the period of which he is in adverse possession of the land in question.

 

Under section 17 of the Limitation of Actions Act (Cap 22), the title of the owner is extinguished upon the expiry of the prescribed 12 years period.  However, if the land is registered land under any of the registration statutes, the title is not extinguished but is held by the registered proprietor in trust for the occupier until the High court has been moved to make a vesting order in favour of the adverse possessor.

 

Cap 22 exempts land vested in the Government/County councils or the Trustees of National Parks from being acquired adversely.

 

An interesting issue that has not often fallen to be considered by our courts has to do with the adverse possession of a leasehold interest. Where A being a freeholder leases his land to B for a specified term and then C a squatter, settles on a portion or a whole bit thereof and claims adverse possession, what would be the consequences of such a claim on both A’s and B’s interest.[274]

 

 

 

 

10.4       JUDICIAL COMMENTARY

 

Where a person claims adverse possession, the general rule is that he must establish that he got into possession nec vi, nec clam, nec precario (without force, without secrecy, without permission).

In Mary Wanja Gichuru vs. Esther Watu Gachuhi[275],

 

The respondent sought a declaration of adverse possession of the suit land and further that the appellant held it in trust for her. It was held in this case that the respondent was on the lands with the consent of other stakeholders in the land and, thus, her occupation could not qualify her to be an adverse possessor.[276]

 

Certain actions, however, may disturb the possession of the suit land. In,

 

Jason Masai vs. Masai Kipsamii,[277]

 

The appellant agreed to buy from the respondent a parcel of land on 14^th June 1977 measuring 100ft by 100ft. the respondent did not transfer the said parcel of land to the appellant. The respondent through local leaders sent a letter to the appellant asking him not to build any structures on the suit land. The letter was sent on 12^th May 1980 and a subsequent one on 5^th June 1985. The issue, therefore, was whether the letter written by the chairman of the clan interrupted possession of the suit land by the appellant.

 

Held;

 

It is clear that the appellant was in possession of the suit land soon after the date of the agreement for sale otherwise there would have been no need for the chairman to write such letters. The appellant’s possession of the suit land became adverse when the contract for sale of land was breached and the consent from the relevant Land Control Board was not obtained.

 

The respondent did not write the two letters. They were probably written at the instigation of the respondent’s family and there was no evidence that the respondent attempted to obtain possession from the appellant either by physical entry or by filing suit for possession. The said two letters are therefore insufficient to prevent the operation of the Limitation of Actions Act. They did not disturb the appellant’s possession hence he acquired title to the suit land by adverse possession.

 

Claims for the recovery of land are time barred 12 years after the cause of action arises. In Bayete Company Limited vs. Joseph Kosgei[278],

The appellant’s case was that the respondent did not have valid shares in the 90-acre suit land and the appellant could not, therefore, be compelled to allocate them to the respondent. The appellant contended that the respondent had moved out of the suit land for a total of 25 years before instituting the suit in the High Court.

 

Held;

The respondent had vacated the suit land in 1968 and never returned to it. Though he was aware of his perceived right, he did not file suit for its recovery until 1993 and his claim was, thus, time barred. The respondent’s interest in the suit land was extinguished.

 

Jurisdiction for determining claims for adverse possession is vested in the High Court where such a right can only be acquired upon a declaration of the same by the High Court.[279] The procedure for instituting such suits is as set out in Order XXXVI rule 3D of the Civil Procedure Rules.

 

In John Ndung’u Ngethe vs. Patrick Murima Gitau and Three Others[280] , it was held that the claim by way of adverse possession not having been brought by way of Originating Summons (OS) as is mandatorily required by O. XXXVI Rule 3D of the Civil Procedure Rules cannot succeed.

 

The Kenyan Law on the doctrine of adverse possession was, however, admirably summed up by the Court of Appeal in Benjamin Kamau Muriama and 3 Others Vs Gladys Njeri[281]

 

This was an appeal from the judgement and Decree of the High Court of Kenya (the Honourable Lady Justice Owuor) wherein the Honourable Lady Justice had held that the Respondent had acquired good title to the suit land by way of adverse possession as against the Appellants.

 

After holding that the Appellants had dismally failed to challenge the Respondent’s claim that she had been in continuous occupation and possession of the suit land since 1953 and as a consequence whereof had accordingly acquired title adverse to theirs the court stated the Law in a nutshell as follows:

 

 

“The combined effect of the relevant provisions of section 7, 13 and 17 of the Limitation of Actions Act chapter 22 of the Laws of Kenya is to extinguish the title of a proprietor of land in favour of an adverse possessor of the same at the expiry of 12 years of adverse possession of that land. The latter possession is an essential condition to such extinguishment of title to land and it exists under circumstances which evince its incompatibility with the title of the proprietor to the land so possessed.”

 

In a bid to exposit the essential elements necessary for the creation of title to land by way of adverse possession, the court further stated, with regard to occupation nec vi, nec clam, nec precario:

 

“…indeed in determining whether or not the nature of actual possession of the land in question is adverse, one needs only to look at the position of the occupier and if it is found that his occupation is derived from the proprietor of the said land in the form of a permission or agreement or grant, then, such occupation is not adverse, but if it is not so derived, then, it is adverse.”

 

With regard to the period of occupation, the court restated the 12 years period rule as follows:

 

“…even if the Respondents possession of the suit land was taken to run from the date of its first registration that is to say, 11^th April 1960, we are in no doubt that such possession was inconsistent with and in denial of (the registered proprietor’s title) to the said land…. Thus after 16^th April 1972 of the Respondents continuous actual possession of the suit land, any subsequent dealings with the said land… were subject to her overriding interest in that land under section 30(f) of the Registered Land Act, chapter 300 of the Laws of Kenya.[282]

 

 

Need we belabour the point?

 

 

 

 

 

 

 

 

 

 

 

 

 

 

CHAPTER ELEVEN

 

 CONTEMPORARY LEGAL ISSUES IN THE LAW OF PROPERTY IN LAND

 

The efficacy of Kenya’s Registration system

 

Land administration in Kenya is governed, by and large, by systems that were put in place by the colonial administration and little has changed over the years in spite of the changes in the general development of the country. The systems are characterized by a multiplicity of laws, a highly centralized administrative structure and archaic ways of doing things. It is notable that although there have been efforts in the past to effect some policy reforms, there has seldom been any review on the laws governing land.

 

Due to social and political pressure, short-term measures and ad hoc policies to resolve the land problems that have developed over time have been introduced. These measures are sometimes wholly devoid of a legal basis or firm policy principles. The legal procedures for the allocation of Government land, for example, are clearly set out in the Government Lands Act (Cap 280). In practice, however, many of these procedures have not been followed for years. Instead, the Office of the Commissioner of Lands has adopted procedures that are not only in breach of the law, but are also flawed in many other respects.

 

Moreover, most ordinary Kenyans find the Ministry of Lands and Settlement not readily accessible. A few privileged citizens, who have access to the senior officers in the ministry, have exploited the inherent loopholes to grab land. In turn the grabbing has been followed by rampant foregoing of documents as the stock of valuable land dwindles posing a serious threat to the security of title[283]. It is not uncommon to hear of forged titles finding their way to a land registry and RLA green cards being pulled out of registers and being replaced by fake ones. Similarly, deed files in land registries are insecure and frequently tampered with.

 

The immediate consequence is that the Kenyan people have lost confidence in the system of land administration. The value of a registered title has been seriously compromised with grave consequences on the Kenyan economy.

 

As a result of a survey carried out by the Njonjo Commission[284], problems and complaints from the public relating to land were so numerous and varied. A number of complaints were, however, common to all areas. A universal grievance was the concentration of power over land in the hands of the President and the Commissioner of Lands. Everywhere, people demanded the decentralization of power over the administration of land.

 

Similarly, people were visibly angry over the ‘grabbing’ of public and private land by persons of influence who seem to be immune from legal action. The people demanded the repossession of land improperly or illegally obtained in this manner. Another almost universal complaint was against the destruction of forests, water catchment areas and other sensitive areas of land that are vital to the environment and the well-being of the country as a whole.

 

In urban areas throughout Kenya, planning requirements are not observed at all. If a particular development plan has been prepared, it is frequently disregarded and the views of the local residents neither sought nor taken into account. The deliberate invasion of unoccupied Government land, Local Council land or Private land by squatters brought by politicians with promises of free land has created nearly insoluble slum development problems.

 

In rural areas, distances to land registries are an obstacle to the smooth running of the system and, far worse is the fact that some Registrars seldom know what they should be doing and charge excessive and unlawful fees for carrying out their duties. The interference in all land matters by the Provincial Administration has been universally condemned. Instead of monitoring the appointment of Land Control Board members and the proper running of Board meetings, the Administration connives at illegal meetings, granting illegal consents and thus dispossessing families of their land.

 

The resolution of disputes by land disputes tribunals is not well understood either by the members of the tribunals themselves or by the Provincial Administration officials who select the members and manage the operation of the tribunals. The results are very dissatisfied members of the public.

 

The whole concept of Settlement Schemes to alleviate the problems of squatters and landlessness has degenerated into a semi-official method of land grabbing by the local and central government officials and politicians. The process of selection of allotees of settlement scheme plots has also been riddled with discrimination.

 

In a nutshell, the overall lack of policy, the destruction of the infrastructure, the interference in land matters by the provincial administration and most of all the failure to heed the views and the needs of the local residents has brought land administration into total disrepute in the eyes of Kenyans. The Ministry of Lands and Settlement has failed in most areas of land administration, planning, development and protection. Instead, some Ministry officials have been involved in the destruction of a sound and working system of land tenure, land ownership and land development. The Ministry has failed to comply with the law or amend the law to cater for new developments. Instead, it has connived at and enabled a system of speculation and land grabbing to flourish throughout the country. In its turn, the cavalier attitude has brought the sanctity of title into disrepute with a negative effect on the economy.

The Way Forward

 

As land is the basis of the Kenyan economy, these problems must be solved and a better way of doing things found. A reorganization of the whole system of land administration is necessary through the setting up of restructured land administration and management mechanisms.

 

A framework of policy principles needs to be developed and consolidated into a National Land Policy and implemented for better administration and management of land in Kenya. It is also necessary to create institutions that will bring the policies into effect.

These institutions should be independent institutions at both national and local levels to direct, supervise, monitor and control the administration of all land matters currently handled by the technical departments of the Ministry of Lands and Settlement and by county councils and other local authorities.

 

Why then can’t the present Ministry of Lands be directed to introduce and manage the new policy?

 

Land is central to people’s lives and must be managed in a sober, focused and professional manner, backed by sound, concise policies and laws that are frequently updated to be in tune with developments in other sectors of the economy of the nation as is happening in other countries of the world.

 

In Kenya today, to write a letter to the Ministry of Lands and Settlement and receive a response by mail is to many Kenyans a dream. Files are deliberately hidden and clerks have to be bribed to produce them; rents are collected, if at all, in an ad hoc manner; management of rates by local authorities leaves a lot to be desired; obtaining information on time on any piece of land is a nightmare. Land statutes are hardly reviewed, and when done it takes years to operate properly.

 

Land disputes take years to resolve, as ordinary citizens are taken round in circles that never seem to end. Civil servants have become civil masters of people rather than the other way round. All these in a country in the 21^st century hoping to develop rapidly to compete globally with other nations and also satisfy the ever-rising aspirations of her people.

 

Efficient and focused systems, that are sensitive and responsive to the needs and aspirations of Kenyans, need to be put in place. This can be done not by the current civil service structure that has all manner of bureaucratic bottlenecks and inefficiency, but by an organizational structure that runs more or less along private sector lines yet at the same time is accountable to the people and responsive to their needs.

 

In summary, the new institutional framework for land administration in the country should bring about community participation in land administration and the decision-making processes, efficiency, transparency and accountability.

The efficacy of Kenya’s registration statutes

 

Land rights delivery is a process that entails the mobilization of institutional mechanisms and personnel for ascertainment of rights, registration, demarcation and/ or survey, the preparation of cadastres[285] and land market regulation among others. These are processes that in Kenya are run as part and parcel of the public administration. At the territorial level, the Commissioner of Lands administers Government and Trust lands directly or in the case of the latter on behalf of county councils hence ultimately, the Commissioner controls access to land in Kenya.

 

Although procedures exist in the Government Lands Act[286] for the proper notification to the public of land available for grant and for the assessment of applications, these are routinely ignored or by passed by public officers in the Commissioner’s office. Private (i.e. registered) land is administered by the proprietors themselves but under the facilitation of a complex bureaucracy consisting of staff from central government line ministries, local political functionaries and local and traditional administrators. The effect is that decision-making on these issues is often contradictory and ineffectual. There is need, therefore, to rationalize and simplify this system.

 

The Land Consolidation Act[287] was enacted to provide for ascertainment of rights and interests and for the consolidation of land in the Special Areas (former native lands); for registration of title to; and of transactions and devolutions affecting such land and other land in the Special Areas. The process of land consolidation is long and cumbersome, and at times entails abandonment of the development of one’s land. To many, it has outlived its usefulness.

 

The Land Adjudication Act[288] provides for the land adjudication process. It involves the ascertainment and recording of existing rights and interests in Trust land. The customary rights and interests of the people ordinarily resident in an adjudication section have often been ignored, sometimes due to corruption thus creating landlessness and poverty. In addition, the provisions of this Act after the publication of the adjudication register are sometimes ignored when objections are entertained long after the mandatory period provided for by the Act has expired. These actions result in unnecessary disputes and subsequent delay in registration of adjudicated land.

 

The Act also provides for appeals to the Minister by those aggrieved by objection determinations. The Minister has delegated his powers of hearing these appeals to the District Commissioners who, however, cannot cope with the large number of appeals before them. The consequence is a serious backlog of appeals and subsequent delays in the registration of titles.

 

Settlement schemes are created by the Government under the Agriculture Act[289] to alleviate landlessness, poverty and to address the squatter problem. Some of the problems encountered in these schemes are that allocation procedures are not defined, leading to the manipulation of the list of allottees resulting in the marginalization of the landless and the poor, unfair distribution of land and a few people end up amassing land at the expense of many deserving persons. Some of these lands are not put into productive use and thus lie idle for speculative purposes.

 

At the Coast, some land was obtained, either through adjudication process under the Land Titles Act[290] or through grants from the colonial or independence governments, by individuals who have never been resident on or utilized their land. Some of these ‘land owners’ have either left the country or died without heirs or possess but do not utilize the land while others merely collect rent through ‘agents’. This group of landowners is commonly referred to as absentee landlords.

 

This category of land is invariably occupied or utilized by ‘squatters’ who, in most cases, are original owners of the land under their customary laws but who, unfortunately, have no measure of statutory protection and have therefore been victims of eviction.

 

The Way Forward

 

All land delivery functions should be centralized in the National Land Authority. The Authority should have the power to create a decentralized system of land registries drawing, where possible, on community level structures and organs of government.

 

The process of land delivery itself should be democratized by ensuring full and informed participation by land rights holders at all levels so that routine land functions such as boundary marking, ascertainment of rights, and record keeping devolve to communities.

 

Land delivery functions should be insulated from politics so that land can be appreciated as property and not as a political service

 

The Land Consolidation Act[291] should be replaced and all the processes under the Act should be carried out under the Land Adjudication Act[292].

 

The process of land adjudication should be improved in order for it to contribute to an efficient land delivery system and a strict verification process should be put in place to ensure that only squatters, the landless and deserving cases are settled.

 

The National Land Authority should be empowered by legislation to inspect, coordinate and direct the development and use of idle land and if necessary to repossess such land. The minister for the time being responsible for Agriculture should invoke the provisions of the Agriculture Act and make reservation, development and/ or management orders over idle and underutilized land.

 

The constitution and the relevant law should be amended to facilitate taking over of land belonging to absentee landlords and allocate the same to the ‘squatters’.

 

Where registered land is involved;

 

Section 143 (1) of the RLA[293]which disallows the challenging of first registration of titles in any court of law should be amended to allow for such actions in a court of law where registration of title (other than a first registration completed and registered prior to the commencement of the Act) has been obtained, made or omitted by fraud or mistake.

 

Also, Section 126(1) of the RLA which prohibits the entry of particulars of a trust in the register should be amended to provide that a person acquiring land, a lease or a charge in fiduciary capacity must be described by that capacity in the instrument of acquisition and must be registered with the addition of the words “as trustee” together with particulars of any trust.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The clash between received land law and customary law

 

Land tenure in Kenya before the advent of colonialism was fundamentally different from that in feudal England, from which alien law was imported. This is because unlike in feudal England, the most common form of tenure during the period was what was termed as ‘communal tenure’. As such, the political authority guaranteed the rights of access in a given community.

 

The authority did not ‘own’ the land but rather exercised political control over it.[294] No ‘ownership’ of land by either individuals or political authorities in the same sense as ‘ownership’ known in English law existed. However, given the existence of different communities in Kenya, tenure did not have similar characteristics in all the ethnic communities. Consequently, the normative structure, the form and vigor of control and the degree of ‘communalism’differred from community to community.

 

Thus, the social transformation of the people and their philosophy as determined by the dictates of the historical stage of development (hunting, gathering, herding and settled farming, etc) were important influences on the land tenure system of each traditional community. Colonialism on the other hand presented a radical departure from the communal system. The chain of history with regard to the development of tenurial systems in Kenya was abruptly interrupted as systems were forced to respond to the needs of the colonizing power, thus turning the communal system into an agent of colonialism.[295]

 

From the very beginning, the British saw it fit to evolve an imperial jurisprudence that would, during their period of occupation, justify the conquest and acquisition of land through the systematic displacement of the native people. The process was to be undertaken in three distinct phases, namely, alienation of land, imposition of English property law and transformation of customary land law and tenure. At the heels of evolving imperial jurisprudence was the assertion by the colonial powers that the Crown, and not the local people, had the original title to some land. This was contained in the East African (Lands) Order in Council in 1901. The order conferred on the Commissioner of the protectorate power to dispose of all public lands on such terms and conditions as he might think fit, subject only to such directions as the Secretary of State might give. Hence, such lands designated as crown lands were vested in the Commissioner in trust for Her Majesty.

 

The acquisition and vesting of all land in the Crown was to pave way for two fundamental changes in Kenya with regard to land ownership and use;

 

 

a)     The beginning of settler incursion and agriculture

b)     The introduction of English property notions.

 

For instance, the theory of eminent domain was extended to property relations in Kenya.[296] The Crown Lands Ordinance conferred power upon the Commissioners to make grants of 99- year leases to a settler upon conditions. However, as it later emerged, grants of land to settlers by the government were not enough. The settlers relentlessly pursued and clamored for “security of tenure” as was known in England with regard to land ownership. They also advocated for the application of English property law, with regard to transfers, mortgages, covenants, leases and other property transactions.

 

These claims resulted in the official institutionalization of the Transfer of Property Act of India as the applicable law to land held by the settlers under the Crown Lands Ordinance.[297] On the other hand, the government enacted the Registration of Titles Ordinance[298] to cater for security of tenure, whose effect was to declare the title of the registered proprietor of land as conclusive and indefeasible.[299]

 

At independence, the government that emerged inherited a land legacy, which would preoccupy its political leadership up to the present day. Hot on the heels of the era of independence was the problem of how to settle the landless and the displaced. The people wanted the land for which they had fought. The government was also faced with the need to achieve economic development as a means of providing the anticipated ‘fruits of independence’. Since the country had no strong industrial base to stir economic activity, agriculture was to play a major role in development.

 

Thus, the government was faced with a rather difficult choice; either to abrogate the colonial legacy altogether or to retain the policies and laws inherited from the colonial power with regard to land ownership and use. Unfortunately, the land policies which were relentlessly pursued by the colonial government were maintained by the nationalist government without at the very least being modified, an act that generated deep rooted problems which at various times have threatened to destroy the fabric of the Kenyan society.

 

 

 

 

 

 

 

Towards a just and equitable land law and land tenure system

 

In the last five decades, the most important land policy project in Kenya has been the reform of the customary land tenure i.e. the conversion of customary land rights into rights amounting to statutory ownership. That project was, and still is, based on an old orthodoxy, namely, that by changing tenure per se rather than the agrarian structures and conditions under which production relations operate, it is possible to generate efficient land use practices. This proposition is founded on the thesis that ownership, per se, especially if it is individualized and secure against State interference, is the foundation of economic initiative.

 

This ideal is, however, misleading. What is required is a comprehensive agrarian reform i.e. beyond the property structure, there is need to reform production structures and support services infrastructure, for example, efficient marketing system, extension services, training and credit among others.

 

In the Kenyan context, reform must address a number of specific issues. First, it must address issues of unequal access to land due to chaotic tenure regimes and social and cultural factors. Second, it must rectify the phenomenon of skewed distribution of land across and within large and small scale farming communities. Third, it must resolve the problem of sub-economic parcelation of land, particularly in the former Trust land areas. Fourth, it must seek to correct land market distortions. Fifth, it must deal with the fact of substantial landlessness arising from historical and contemporary causes. Sixth, it must confront the state of dilapidation of infrastructure especially in the rural areas and seventh, it must design a special tenure regime for the pastoral or arid and semi-arid areas of the country especially those originally brought under group ranching.

 

Consideration should be given to the following principles;

 

• Land rights security for all land users, irrespective of tenure category, should be guaranteed.
• In the case of the former Ten-Mile Coastal Strip, consideration should be given to a general enfranchisement of all occupiers on land registered under the Land Titles Act.
• Rural-rural migration and the acquisition of permanent land rights across ethnic territories should be encouraged.
• Discriminatory practices relating to access to and control of land and the acquisition of land rights through inheritance should be eradicated.
• A system for the periodic consolidation of land sizes, taking into account the ecological and technological factors, should be designed.
• Support services infrastructure, especially credit, marketing, extension and technological services to agriculture should be strengthened.
• As part of the process of tenure reform, mechanisms should be provided for investigation and resolution of historical claims by communities especially in the Coast and Rift Valley Provinces.

These communities[300] claim to have been dispossessed not only by the colonial regime but also in recent times through land market transactions and the process of land adjudication, consolidation and registration, and in the case of the Rift Valley, the resettlement programme.

 

It is for this course that the former president, Honorable Daniel T. Arap Moi, appointed the Njonjo Commission in 1999 to investigate on principles of a National Land Policy framework, the constitutional position of land and to design a new institutional framework for land administration.

 

The Njonjo Commission of Inquiry

 

This Commission of inquiry into the Land Law System of Kenya was appointed by His Excellency the President pursuant to section 3 of the Commissions of Inquiry Act, Cap 102 of the Laws of Kenya vide Gazette Notice Nos. 6593 and 6594 published on 26^th November, 1999 as read with Gazette Notice No. 1797 published on 31^st March, 2000; Gazette Notice No. 2972 published on 19^th May, 2000; and Gazette Notice No. 4445 published on 21^st July, 2000.

 

The Commission’s terms of reference

 

a)     To undertake a broad review of land issues in Kenya and to recommend the main principles of a land policy framework which would foster an economically efficient, socially equitable and environmentally sustainable land tenure and land use system;

 

b)     To undertake an analysis of the legal and institutional framework of land tenure and land use in Kenya and to recommend a programme or programmes of legislation that would give effect to such policies;

 

c)     To recommend guidelines for basic land law and complementary legislation and associated subsidiary legislation which would address, inter alia, the following issues-

 

                        i)     the systems of land tenure appropriate for the country;

                       ii)     the system of land ownership and control;

                      iii)     the system of acquisition and disposition of land rights whether by inheritance or otherwise;

                      iv)     the structural framework for the administration of all categories of land whether   State, communal or private including the consolidation, up-dating and improvement of all procedural legislation relating to the registration of titles to and all other instruments concerning dealings with land and of interests and rights therein, thereto, or thereover;

                       v)     the structural framework and principles for the administration and management of protected areas including wildlife sanctuaries, coastal and marine zones, wetlands, catchment areas, forests and nature reserves;

                      vi)     the system of land use planning, management and development;

                    vii)     the process of land delivery including survey, registration and the preparation of official records relevant to such survey and registration;

                   viii)     the structural framework for the processing and settlement of land disputes;

                      ix)     the replacement of foreign applied laws;

                       x)     the repeal and/ or replacement of all laws now deemed to be obsolete;

 

d)     to take into account all customary laws relating to land and so far as is practicable, to incorporate such of those laws with such modifications, if any, as may be considered to be desirable for the purposes of making them consonant with present day conditions;

e)     to incorporate in such new legislation, if thought desirable in the interests of people in Kenya, with or without modifications, the provisions of any laws of other States relating to the tenure of  or dealings with land and of any rights of interests thereto or therein;

f)      to prepare a draft or drafts of such new or amending legislation as may be necessary to implement the recommendations of the Commission to be developed as indicated above; and

g)     to make such further recommendations as the Commission may deem necessary.

 

 

 

Community Based Property Rights[301]

 

Sustainable management of natural resources can only be realized if local communities who depend on those resources for their livelihood enjoy rights of ownership and control over them and have the power to make decisions concerning their utilization. Thus, resource users should be the best custodians of their natural resources, provided they have a right to use them and to benefit in a meaningful manner from their custodianship.

 

In Kenya, the prevailing legal and policy instruments have characteristically excluded the local resource users from the decision making process. This has had significant consequences on the status of natural resources in Kenya. Legal and policy instruments are based on scientific and technical assumptions that ignore the social context within which this knowledge is to be applied, resulting in a widespread failure of these assumptions.

 

However, even as scientists grapple over issues concerning the degradation of ecological conditions, local communities are devising novel institutional arrangements to solve their own environmental problems. This is despite the fact that the prevailing resource management mechanisms exclude them from playing any significant role.

The sustainability of the natural resource base in the world generally and in Kenya in particular will depend on the readiness and ability of formal institutional organs- especially the governments- to allow local communities to exercise their ability to innovate and to implement their innovations with respect to natural resources management. For this to happen, there is need to revise the present property rights regime such as privatization of land and natural resource tenure to recognize the rights of communities over natural resources.

 

The legal and policy instruments on resource management, treats issues of resource management as separate from the question of land use and ownership. These Management Systems ignore the fact that legal and policy instruments concerned with regulating access to natural resources do in effect regulate access to the land on which these resources are located.

 

As a result, a conservation area may be created in an area surrounded by human populations who would then be required to regulate their lifestyles (economic, social and political) to conform to the goals for which the area was created.  This exposes the area to pressures from the surrounding populations e.g., acquisition of land for food production and settlement which, in the end, may defeat the purpose for which the conservation area was created in the first place.

 

There is, therefore, need for a holistic approach to issues of land use and resource management. Such an approach must be one that takes into account the needs, interests and benefits of those people who live in close proximity to natural resource bases and who depend on them for their survival.

 

Thus, if sustainability in resource management is to be achieved, then resource dependent communities must be fully involved in not only the decision making process but also in concrete actions concerning the land and resources they inhabit and use.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

IRREGULAR/ ILLEGAL TITLES TO LAND AND THE ISSUE OF “GRABBED” LAND

 

Some Definitions

 

The term ‘illegal’ is defined in Black’s Law Dictionary to mean “against or not authorized by law”. In the context of land alienation therefore, illegal alienation (allocation) means an allocation of land that is against or not authorized by law. In this regard it may mean allocation of land that is not available for allocation i.e. it may have already been allocated and have a title already, or it may be that the land is reserved for a particular public purpose thus cannot be allocated for any other purpose.

 

The term ‘irregular’ on the other hand is defined in Black’s Law Dictionary to mean “that which is not according to established law, method or usage; not conformable to nature, to rules of moral rectitude, or to established principles; not normal, disorderly”. Put in a nutshell, ‘irregular title’ means issued without properly following authorized procedures, that is, procedures as set out either in one or another law or in the practice notes of the land office or the approved practice by local authorities.

 

TYPES OF LAND

 

Government land

 

The regime of law governing government lands is the Government Lands Act, Chapter 280, Laws of Kenya. The GLA originated from the Colonial Crown Ordinance of 1915. For the purposes of the GLA, ‘Government Lands’ does not necessarily mean land owned by the government[302]. The Act is the primary law providing for the administration as well as the alienation of Government lands.[303] Consequently, the validity of titles issued with respect to government lands depends on the validity of the procedures followed in disposing of the lands.[304]

 

Government lands for purposes of disposal may be divided into two categories; town plots and agricultural lands. For both categories of lands, alienation and disposal is done primarily by way of grants, by leases of town plots and agricultural lands for specific periods of time, and by sale of agricultural land, thereby conferring freehold (absolute) titles thereto.[305]

 

Mortgages and temporary occupational licenses may also be granted on government lands but these may not require the issuance of titles thereof. There are also cases where

government lands may be disposed by a court order.[306] However, the only statutory criteria to met prior to the disposal of Government lands is that the land must be available, meaning that they must not, at the time of the proposed sale, be needed or required for Government purposes. The absence of proper criteria for disposal of government lands, therefore, opens up room for the exercise of discretion by the authorities charged with the responsibility of deciding on the alienation of government lands. Unguided discretion provides a loophole, which has always been exploited to alienate land for unjustified purposes. This has resulted in many instances of abuse of discretion to benefit private individuals.

 

The power to deal in government land is vested in the president by Section 3 of the Act (GLA), which provides inter alia,

 

The president, in addition to, but without limiting any other right, power or authority vested in him under this Act, may

a) Subject to any other written law, make grants or dispositions of any estates, interests or rights in or over unalienated Government land.[307]

 

Thus, the Section empowers the Government to make grants, disposals by way of leases, to dispose freehold interests in land, town plots and agricultural lands by public auction.

Section 7 on the other hand, authorizes the Commissioner to execute conveyance documents on behalf of the Government. The Act however has a loophole in that it does not prescribe the circumstances under which grants may be made. However, the Act provides that where a grant is made to a party, certain steps must be taken i.e. valuation of land for purposes of determining rent, issuance of a letter of allotment, and Registration of a conveyance.

 

There are certain circumstances, however, when the allotment of public land can be declared void and wrongful.

In, The Town Council of Ol’Kalou vs. Ng’ang’a General Hardware[308] ,

 

Whilst the respondent had been issued with a letter of allotment in respect of the said premises, GRANT NO. IR 60537, he sought an order of the superior court evicting the appellant and for vacant possession of the said premises for purposes of its development. The appellant’s case was that the allotment was wrongful and void because the Commissioner of Lands had no power to alienate public plots. It was held in this case that under Section 9 of the Government Lands Act, the suit premises were not available for alienation and the procedures laid down in Sections 12 and 13 of the said Act were not complied with in the process of alienating the said premises.[309]

Prior to registration, the Act provides that conveyance documents must be properly executed by both parties, the Commissioner on behalf of the Government, and the grantee. But the Act does not specify what kind of document is to be executed.

 

Disposal by way of leases

 

Steps followed

 

• Availability of unalienated government lands.
• The commissioners exercise of the power to sell the land
• Establishment of an up-set price
• Establishment of lease periods
• Advertisement of availability of government lands and proposed sale by public auction
• Informing bidders of the terms and conditions of sale
• Sale by public auction
• Sale to the highest bidder
• Preparation of conveyance documents
• Registration of title

 

In practice, a certificate of lease is issued to signify ownership of a leasehold interest in government lands.[310]  

 

 

Private land

 

Private land is land that has a registered title under one or other registration statute and is owned by an individual or a corporation or even by government or a local authority. The idea of private land was introduced by colonial legislation and the idea was later pursued relentlessly in postcolonial legislation. These pieces of legislation stipulate three distinct stages in the process of tenure reform, that is, the process leading to the issuance of first registration titles to private owners of land. These stages are;

 

-        The ascertainment of individual or group interests in land.

-        Consolidation of land.

-        Recording of rights in an official register and the issuance of title deeds.

 

The Registered Land Act lays down the legal framework that governs registered land. The Act expressly applies to areas of trust land to which land adjudication has been applied, meaning that it applies to portions of trust lands alienated to private owners through the consolidation, adjudication and registration processes.[311] All dealings in registered lands must be in conformity with the Registered Lands Act and the Act supersedes any law that conflicts with it with regard to registered interests in lands.[312]

 

Of the most important features of the Act, registration of a person as the proprietor of land vests in that person the absolute ownership of the land, together with all rights and privileges relating thereto. Similarly, the registration of a person as the proprietor of a lease vests in that person the leasehold interest described in the lease, together with all implied and express rights and privileges related thereto.[313]

 

In George Cheyne & 20 Others vs. Robin Munyua Kimotho & Others[314] ,

 

The plaintiffs were residents of Mahuti Cresent Lane in Nairobi’s South C Estate and were registered proprietors of all those several plots, which abut against and to a certain extent completely enclose plot No. L.R. 209/5041. They enjoyed without interruption use of the suit plot as a recreational facility and preserved it as the same for their children. By devise or otherwise, and most probably by way of what is commonly known as land grabbing, the Commissioner of Lands surreptitiously, without the knowledge of the plaintiffs who were directly affected by any dealings in the suit plot and in total disregard for general public interest, alienated the suit plot to the first respondent. While the appellants claimed equitable rights, the title of the first defendant took precedence and was supreme. S. 23(1) of the RTA gave an absolute and indefeasible title to the owner of the property and could only be challenged on fraud or misrepresentation.

 

 

Public land

 

Government lands and trust lands are generally referred to as public lands.

Since government lands have been already discussed, we shall dwell on the other category of public land, which is the Trust land.

 

The current composition of Trust Lands is basically the remainder of lands that were, in the colonial days, designated as native reserves. They include former special reserves, temporary special reserves, special leasehold areas, special settlement areas, communal reserves, and lands situated outside the Nairobi area as it was at independence in 1964, if the freehold title thereof is registered in the name of, or vested in a county council by escheat.

 

The administration and disposal of Trust Lands is currently faced by one major challenge, that is, that the first schedule to the Trust Lands Ordinance defining their boundaries was repealed thus making it difficult to ascertain the boundaries of trust lands.

 

The legal regime governing Trust lands fall into two categories, one dealing with the management of Trust lands and the other with disposal or alienation of Trust lands at which the land ceases to be Trust land and becomes either Government land or Private land. The substantive and procedural law governing Trust lands are primarily the Constitution, the Trust Lands Act, the Land Consolidation Act and the Land Adjudication Act. Besides, the Registered Land Act and the Group Representatives Act apply in certain cases of registration of Trust lands.[315]

 

For management of Trust lands, Section 115 of the constitution lays out a framework. It stipulates that trust lands shall vest in the county councils in whose area of jurisdiction the land is situated, but the power must be exercised by the Commissioner of Lands on behalf of the councils.

 

Trust Lands Act, Section 53 (a) & (b),

 

The Commissioner of Lands may administer trust lands vested in the councils on behalf of the council, and as an agent for the Councils, the Commissioner may perform functions related to the issuance of titles to Trust Lands; to set aside land for public and private purposes; to execute on behalf of the council, grants, leases and other documents relating to trust lands.

 

However, mandatory requirement exist to the effect that the powers of the Commissioner be exercised in accordance with any standards, guidelines or rules that would ensure that the powers are exercised in a way that would allow county councils to manage the land so as to give effect to the interests of people ordinarily resident. In Nairobi City Council vs. Thabiti Enterprises Ltd,[316] it was established that the Commissioner of Lands was in breach of trust and in a blatant abuse of his power deprived the true beneficiary and real owner of the land by unjustly enriching the respondent. In this case,

 

The appellant allocated about 20 acres of land to Martin Luther Primary in Hamza Estate in Nairobi Eastlands. Without the knowledge of the appellant, some unknown surveyors carried out a survey of the school with a view of demarcating it. The suit land measuring 5.3 acres was demarcated out of the school compound. Thabiti obtained a grant of the suit land and mortgaged it to the bank. Later, they claimed that the City Council compulsorily acquired the land and sought compensation.

 

 

For disposal of trust lands to individuals and the issuance of titles to trust lands, Section 116 of the Constitution is relevant. It provides;

 

A County Council may, in such manner and subject to such conditions as may be prescribed by or under an Act of parliament, request that any law to which this section applies shall apply to an area of Trust Land vested in that County Council, and when the title to any parcel of land within that area is registered under any such law otherwise than in the name of the County Council, it shall cease to be Trust Land.

 

Clearly, the section does not indicate exactly which law the section applies to or the considerations a county council should make before proceeding to deal with trust land in a manner that causes it to cease to be trust land. Therefore, resort must be made to other statutes governing trust lands for clarification on procedures for disposing of trust lands to private individuals.

 

The statute with relevant provisions with regard to disposal of trust lands is the Land Adjudication Act. Section 3 of the Act states that;

 

The Minister may, by order apply this Act to any area of Trust Land if –

a)     The County Council in whom the land is vested requests; and

b)     The Minister considers it expedient that the rights and interests of persons in the land should be ascertained and registered…

 

In giving effect to the above section, a number of steps are involved in the alienation of trust lands.[317] These are;

 

• Application of the Land Adjudication Act to an area
• Appointment of adjudication officers
• Establishment of an adjudication section
• Publication of notice
• Fixing of a period for making claims to land
• Conducting a survey and demarcation & the preparation of a demarcation map
• Preparation of forms for every parcel of land
• Correction of errors in the adjudication record
• Display of the original demarcation register for inspection
• Presentation of the adjudication Register to the Director of land adjudication
• Certification of the adjudication Register
• Registration of titles issuance of titles

 

Parties aggrieved by any dealings with trust lands are authorized to seek redress in the High Court.

 

Forests and Parks

 

These are other government lands regulated by the Forest Act and the Wildlife (Management and Conservation) Act. As regards forests, the Act authorizes the Minister to declare any unalienated government land to be a forest, declare boundaries from time to time as well as the cessation of the area being a forest, which must be by Gazette Notice.

 

The Act, however, does not specify purposes for which forestlands may be alienated, nor does it, in any other statute, restrict alienation of forestlands for certain purposes only. Nevertheless, the requirement of notice in he Gazette does constitute a procedure that must be followed before any alienation takes place or if ignored, any titles issued would be irregular.

 

As regards land owned by municipalities, including the City Council of Nairobi, the Local Government Act of the Laws of Kenya applies. Lands owned by the local authorities can be government lands falling under the Government Lands Act. Section 144 of the Local Government Act authorizes local authorities to acquire and to hold land for their purposes and functions.

 

The same provisions authorize local authorities to sell, grant or lease any land which it may posses and which is not required for the purposes for which it was acquired or being used, subject to approval by the Minister for Local Government.

 

Besides, there are City Council of Nairobi by-laws that require that any sale, lease or grant of lands that the Council does not need must be approved by a resolution of the Council. All these constitute procedures for issuing titles to lands owned by local authorities that must be adhered to in any alienation. Thus, breach of or failure to adhere to the provisions in issuing titles gives rise to irregularly issued titles, an act that is not uncommon with many local authorities.

 

 

The Ndungu Commission of Inquiry

 

The Ndungu Commission of Inquiry was appointed by His Excellency the President Mwai Kibaki on 30^th June, 2003 and the appointment was contained in Gazette Notice No. 4559 of 4^th July, 2003. The purpose for which the commission was appointed appears clearly in the opening statement (preamble) of the Gazette Notice, which states that;

 

WHEREAS it appears that lands vested in the Republic or dedicated or reserved for public purposes, may have been allocated by corrupt or fraudulent practices or other unlawful or irregular means, to private persons, and that such lands continue to be occupied contrary to the good title of the Republic, or in a manner inconsistent with the purposes for which such land were respectively dedicated or reserved.

 

Based on the above, the President assigned the Commission wide-ranging terms of reference, which have been challenged in some quarters as being unconstitutional, contrary to the law, and without justification.

 

 

 

The terms of reference were;

 

a)     To inquire generally into the allocation of private lands and in particular;

i)               To inquire into the allocation, to private individuals or corporations, of public lands or lands dedicated or reserved for public purpose;

ii)              To collect and collate evidence and information available, whether from Ministry-based committees or from any other source, relating to the nature and extent of unlawful or irregular allocations of such lands; and

iii)            To prepare a list of all lands unlawfully or irregularly allocated, specifying particulars of the lands and of the persons to whom they were allocated, the date of allocation, particulars of all subsequent dealings in the land concerned and their current ownership and development status;

b)     To inquire into and ascertain;

i)               The identity of persons, whether individuals or bodies corporate, to whom any such lands were allocated b unlawful or irregular means; and

ii)              The identity of any public officials in such allocations.

c)     To carry out such other investigations into any matters incidental to the foregoing as, in the opinion of the Commissioners, will be beneficial to a better and fuller discharge of their commission;

d)     To carry out such other investigation as may be directed by the President or the Minister of Lands and Settlement;

e)     To recommend:

i)               Legal and administrative measures for the restoration of such lands to their proper title or purpose, having due regard to the rights of any private person having any bona fide entitlement to or claim of right over the lands concerned;

ii)              Legal and administrative measures to be taken in the event that such lands are for any reason unable to be restored to their proper title or purpose;

iii)            Criminal investigation or prosecution of, and any other measures to be taken against, person involved in the unlawful or irregular allocation of such lands; and

iv)             Legal and administrative measures for the prevention of unlawful or irregular allocation of such land in the future; and

f)      To report, in accordance with Section 7 of the Act, their findings and any such recommendations within a period of one hundred and eighty (180) days;

g)     To make monthly progress reports to the Minister for Lands and Settlement.

 

As a starting point, the prevailing idea is that the concern should only be illegal or irregular allocation of public land at the expense of private land. As already pointed out, public land is land comprised in government lands and trust lands. It is that land used or intended to be used for a public purpose even if that public purpose is that land should remain unused.

 

Private land is land that has a registered title under one or other registration statute and is as such owned by an individual or corporation or even by the government or a local authority. Each of these lands, public and private, have well set out procedures for disposal or alienation so that when the procedure is not followed, any result reached is null and void.

 

In my view, the illegal allocation of private land is much more serious than the illegal allocation of public land as such an allocation usually has an extremely serious negative effect on public confidence in the security of title and land generally. Such allocations should, in my view, be terminated and ought to have formed part of the terms of reference of the Commission.

 

On constitutionality

 

One of the terms of reference of the Commission was to recommend legal and administrative measures;

1)     for the restoration of public lands to their proper title or purpose and

2)     to be taken in the event that such lands are for any reason unable to be restored to their proper title or purpose.

 

Section 75 of the Constitution of Kenya, however, guarantees protection to everyone against deprivation of property. It provides in part that no property of any description shall be compulsorily acquired. This right, however, is subject to certain exceptions spelt out in the section, including reasons that possession or acquisition is necessary in the interests of defense, public safety or public order; that the necessity must be such as to afford reasonable justification for the causing of hardship that may result to any person having an interest in, or right over the property; and that provision must be made for the prompt payment of full compensation.

 

Therefore, by mandating the Commission to make recommendations of a legal and administrative nature, for the restoration of public lands illegally or irregularly acquired, as the case may be, to their proper title, more so where individuals or corporate bodies registered as proprietors have not even been given an opportunity to be heard, land reverted back to the proper title as the focus is public land, an act that is equivalent to compulsory acquisition without necessarily fulfilling the laid down conditions under the Constitution. To this extent, the terms of reference of the Commission can be said to be ultra vires the Constitution and subject to Section 3 of the Constitution, void to the extent o that inconsistency.

 

On the Law of Registration

 

Ordinarily, a person can only be said to have irregularly or illegally acquired land if that person has title to that land. This is a process of registration involving ascertainment of individual or group interests in land, consolidation of land, recording of rights thereof in an official register and completion of the process by the issuance of a title deed.

 

Once this is done, the registered proprietor is vested with absolute ownership of the land, together with all rights and privileges related thereto. Such rights cannot be defeated, save as provided for in the Registered Lands Act, and are to be held free from all other claims and interests. Section 142 of the RLA provides that;

 

‘the Registrar may rectify the register or any instrument presented for registration where there are informal matters and in the case of errors and omissions not materially affecting the interests of any proprietor, where the parties have consented; or where upon resurvey, an omission or area shown in the register is found to be incorrect and in such a case, notice must be given to all parties concerned.’

 

On the other hand, Section 143 empowers a court to order rectification of the register by directing that any registration be cancelled or amended where it is satisfied that the registration was obtained, made or omitted by fraud or mistake. This, however, cannot happen in the case of first registration, which is indefeasible. Nevertheless, the cause of rectification – omission, fraud or mistake, must be proved to have been caused by the proprietor.

 

Therefore, by mandating the Commission to recommend legal and administrative measures, for the restoration of such lands to their proper title and purpose, and, legal and administrative measures to be taken in the event that such lands are for any reason unable to be restored to their proper title or purpose, the commission assumes the responsibility of the court and is questioning the validity of title; which power is only vested in a court of law hence ultra vires the law and unconstitutional.

 

Again, the Commission in developing its rules of procedure is said to have set its baseline as 1963, which in my view is in contradiction and violation of clear statutory provisions on limitation.

 

The Limitation of Actions Act, Chapter 22 of the Laws of Kenya at Section 7 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.

 

Though the duty of the Commission is not an action by itself, it may well be its power to make recommendations for reverting lands to proper title by an action, something that can only be validly brought before a court of law.

 

 

 

Identifying Loopholes in the Process of Land Titling

 

Firstly, there is Section 3 of the Government Lands Act, which vests the president with very wide and unchecked powers in dealing with government lands. The same also applies to trust lands as established under Section 118 of the Constitution and Sections 7, 8, 9 & 10 of the Trust Lands Act. The president may exercise this power through the office of the Commissioner of Lands. Granted, these provisions confer on the president a carte blanche in dealing with these lands. What ordinarily happens, and this has been a live problem, is that public land (government land and trust land) is dealt with without any due regard to public interest for which such lands are intended. This has caused serious losses of public land.

 

The existence of numerous statutes governing land also makes it hard to ascertain the exact legal position regarding matters concerning land. At present, more than ten statutes exist governing land. Some of these statutes, such as the Land Consolidation Act and the Registration of Documents Act have not been put into much use, yet they have not been updated or repealed.

 

The effect of the existence of many statutory instruments have been noticed in many areas, such as effects on registration of customary land rights thereby causing more confusion. Great difficulties have resulted from the interpretation of the laws as they allow room for people to acquire titles to land irregularly, register them and cause suffering to many people.

 

Perhaps it is worth noting at this point that the Local Government Act, at Sec 144, authorizes activities that would ordinarily amount to transfer of wealth, especially in view of irregularities.

 

In particular, Section 144 (2) authorizes local authorities to acquire land for their purposes and gives the right to compulsorily acquire private lands for local authorities’ purposes. It does not, however, stipulate that any land that remains after he acquired lands have been put to the purposes for which they were acquired should be maintained for future use or given back to the original owner.

 

Instead, Section 144 (3) to (6) authorizes local authorities to sell those lands. This clearly is a lacuna, which can be used by people who are well placed within the councils to irregularly allocate lands.

 

Turning to the issue of Public Trust land Doctrine, it has not been specifically incorporated with respect to government lands in the Government Lands Act or in the Constitution. For trust lands, the concept of trust has been provided for although it is given no more than passing attention in the day-to-day alienation of trust lands. As a matter of fact, the failure to provide for and give effect to the Public Trust Doctrine provides a loophole for people wishing to disregard the law and misuse public property.

 

On the other hand, Section 9 of the GLA authorizes the Commissioner of Lands to cause any portion of a township to be divided into plots and to be sold for business or residential purposes. Section 19 authorizes sales of agricultural land held by the government. The authorization to sell public lands without a corresponding provision for regard to be had to the public interest offends the public trust responsibility on the Government to hold the lands for the benefit of current and future generations (inter-generational equity) and ought to be repealed to abolish sale of government land.

 

Another important issue is that regarding the circumstances under which a grant (as opposed to a lease) of government land may be issued. The current procedures have resulted in the issuing of freehold titles to government land grants even within urban areas, thereby making it possible for the lands to be disposed of for private uses, yet the provisions of Chapter 280 seem to imply a grant of leases of land within urban areas(townships). The Act also falls short of clarifying who may apply for grants of government lands or what purposes (objectives) may qualify for land grants.

 

All these, unless clearly defined, will continue to cause further loss of public land.

 

The Commissioner of Lands has also been conferred very wide powers over lands without necessarily subjecting those powers to significant restraints, except the requirement of having regard to “any general or special directions from the President.”[318] It is worth noting that the Commissioner is not obliged to seek any directions before alienating or dealing with land in any other manner. Similarly, the President is not obliged to give any directions. Clearly, these powers cannot be said to be incapable of abuse.

 

Last but not least, the existing numerous statutes fail to provide clear procedures for rectification of titles and land registers by the Land Registry in cases of irregularities. Besides, there are conflicting and contradictory provisions with respect to suits arising out of irregularities of land titles.

 

Therefore, any successful action that may be intended and taken to spell out appropriate measures of dealing with irregularities and/ or illegalities of land titles must be considered in the context of the above loopholes.

 

Land is an integral part of development. It is even more important in an agricultural country like Kenya. Consequently, there needs to be in place a clear national land policy detailing a comprehensive status of all lands, that is, government lands, trust lands and private lands. Of necessity, this may require evaluation of the existing legislation and analyzing whether they are sufficient (which is doubtful) with a view to preferring legislative amendments and more so developing a policy with regard to government lands setting out clearly its objectives.

 

 

 

Examples of some irregular dealings involving Government Lands

 

Example 1

With respect to government lands, the issuance of titles to the Ogiek community over portions of the Mau Forests provides a good example. Forests or forest areas in Kenya are government lands that have been reserved for the purpose of protection of the forests and forest catchments, among others. Procedures for the alienation of forests or forest areas for whatever purpose are set out in the Forests Act. This requires that the Minister concerned should publish a notice in the Kenya Gazette, declaring that a forest area shall cease to be a forest area.[319]

 

Without publishing a notice in the Gazette, the Government made efforts to settle members of the Dorobo, or Ogiek community between 1990 and 1993.The process began when the provincial administration, including the area police, moved into the forest and began allocating areas of the forests to the community. In the end, some 3000 to 3500 households were allocated portions of the forest (of 5 acres per household), although the number of Dorobo (Ogiek) Community members that had been intended to be settled was only 1800. Further, although the settlement was intended to provide permanent homes for the Dorobo, allottees were issued with temporary occupation licenses. It was not until the year 2001 that several forest areas were de-gazetted by publication of notices in the Kenya Gazette, ostensibly to ‘regularize’ some of the previous forest excisions, including areas allocated to the Ogieks.

 

Example 2

The cases of Dr. Ainea Otieno Oyoo vs. Jane Mubea & Nairobi City Council, Nairobi HCCC No.18 of 1995 and that of Raila Odinga & Others vs. The City Council of Nairobi, H.C. Misc. Civil Appl. No. 899 of 1993 are in point. Nairobi City Council officials sold prime residential houses that had been acquired by the Council for accommodating Council staff, including LR1\239, a residential house in Dagoretti Senior Staff Quarters; L.R. 330\493 in Korogocho, Nairobi; L.R. 209\2501 in Westlands, Nairobi; LR37\386 in Lavington, Nairobi; and LR 3734\411 on Tigoni Road near Yaya Center irregularly.

The alienation was riddled with irregularities. The properties were sold without the mandatory City Council meeting to deliberate on the sale as required by the Local Government Act and Rules made there under, and without a Council resolution approving the proposed sale. The sale was privately conducted and the officials transferred the properties to themselves and their close relatives. The sale was made at gross undervalue; the properties, many of which were worth at least 3.5 million Kenya shillings and in many cases no money was paid. The sales were conducted without approval of the Local Government Minister as required by law.

 

Example 3

With respect to trust lands, the matters concerning the Mosiro Land Adjudication area in Kajiado District provide a classic case of irregularities involved in the issuance of titles to land. These matters appear more elaborately in H.C. Misc. Civil Application No. 312 of 1991, James Ndungu Wambua vs. Director of Land Adjudication; in James Ndungu Wambua v. The Republic & Others, Civil Appeal No. 85 of 1992; and in Kenya Times, January 28, 1991.[320]

 

Briefly, by Legal Notice Number 137 of 1970, the Minister approved the application of the Land Adjudication Act to Trust land, subsequently defined as the Mosiro Land Adjudication Section in Kajiado District as required under Section 3 of the Land Adjudication Act. Subsequently, the process of adjudication commenced, in which rights of ordinary residents over parcels of land in the adjudication area were to be ascertained and recorded and eventually parcels of land demarcated (after mapping and survey) and registered in their names.

 

Contrary to the provisions of the Land Adjudication Act, setting out the procedure for adjudication, the process was riddled with irregularities. It failed to give any of the ordinary residents of the Mosiro Land Adjudication Section [hereinafter, MLAS] any opportunity to point out or to demarcate the boundaries of lands they claimed. The residents were in fact not accorded an opportunity to make claims to any land in the section. The process allocated land to people on a map without such map or allocation being preceded by actual demarcation of the respective parcels of land on the ground. It allocated some 52,452 hectares of land in the Adjudication Section to people mainly from the Central Province (Kiambu), about 27 of them in number (including the daughters of the [then] Director of Land Adjudication) and to at least 31 Government Officials. There was failure to display the original of the Land Adjudication Register at a convenient place or at any place at all, so that residents could peruse it, to verify information respecting lands allocated to them.[321] The process registered parcels of land to the outsiders (non-residents) under Section 32 of the Registered Land Act.

 

Example 4

 With respect to privately owned lands, criminal case No. 3484 of 1996, Republic v. James Muoki Wambua & another, illustrates how title to land can be acquired fraudulently. The case concerns an urban plot in Nyari Estate, Nairobi belonging to a Mr. John Nganga Gathegi who had been living in the United States. Having bought the land in 1987, Mr. Gathegi returned to Kenya in1995 and with intentions to sell the land, found a buyer, agreed on the purchase price with the buyer, instructed a lawyer to handle the transaction, signed transfer documents which he then placed with his lawyer, and gave instructions that the buyer signs the same after depositing purchase money with Mr. Gathegi’s lawyer.

 

The buyer reneged, even though his name had been typed in the transfer documents, and proposed another buyer. Then somehow, someone else advertised the property for sale in the national newspapers, got a buyer, prepared transfer documents, executed them as the owner of the plot, obtained money from the buyer and the transfer documents registered in the name of the purchaser, and a title deed issued by the Land’s Registrar (notwithstanding a caveat that had been lodged by the Lands Registry on dealings with that property at some point, before registration was effected). Mr. Gathegi (in the United States) was informed by a person living next to his plot that something must have gone a miss with his plot in Kenya. He flew back to Kenya, and after investigations, the fraudster and his lawyer were arrested, charged and convicted.

 

Currently two titles exist in the names of Mr. Gathegi (the true owner) and the person who purchased from the fraudster, awaiting a court case to cancel the second certificate of title.

 

  

         

 

 

 

---

[1] See Moorehead, R.(1997) Structural Chaos: Community and State Management of Common Property in Mali. London, 11 Ed p22

[2] See Noronha, R.(1985) “A Review of the Literature on Land Tenure Systems In Sub-Saharan Africa”, in Agriculture and Rural Development Department Discussion Paper No. 43. Washington DC, World Bank.

[3] Kenyatta, J.(1938). Facing Mount Kenya: The Traditional Life of the Gikuyu. Nairobi; Kenway publications. Chapter 11

[4] See the judgment of Chief Justice Barth in Wainaina wa Githomo and Anor vs. Muritu wa Indangara and Anor 9 EALR 102 and Stanley Kahahu vs. AG 18 KLR 5 

[5] See Jean Jacques Rousseau; Discourse on Inequality; Quoted in H.W.O. Okoth Ogendo; Teaching manuals on Property Law Vol.1

[6] OP cit

[7] See Lord Lloyd’s The Idea of the Law (1970) pp.309

[8] H.W.O. Okoth Ogendo; Op cit

[9] Ibid

[10] The conception of a “Right” as an “Affirmative Claim” is largely the definition of a Right in Hohfeldian terms.

[11] Okoth Ogendo, (Supra)

[12] James, R.W. and Fimbo, G. M. (1973). Customary Land Law of Tanzania: A Sourcebook. Der es Salaam;EALB p3

[13] Kenyatta, op cit

[14] See Honore in Guest Ed; Oxford Essays in Jurisprudence, at P.108; Quoted in H.W.O. Okoth Ogendo, Supra.

[15] SaLmond’s Jurisprudence (12 ed) at P. 411

[16] As per Blackstone & Hobbes.

[17] See Paton’s Jurisprudence, 3^rd Ed at P. 262 (These terms have caused confusion to readers who cant resist the temptation to translate them literally as a right to a thing and a right against a person…… In Roman Law, there was a clear cut distinction between dominium, title which availed against the world; and obligatio, which bound only the parties to the agreement.)

[18] In Corporeal, the property owned is a physical object while in Incorporeal, the property owned is a mere right.i.e while corporeal applies to the land itself, incorporeal applies to rights in the land

[19] See for instance, section 3 of the Interpretation and General Provisions Act, Cap. 2; see also section 2 of the Indian Transfer of Property Act (1887)

[20] Ibid

[21] Okoth Ogendo, Supra

[22] See Marx Cluckman, “Ideas” at P.75 Chap.3; Quoted in Okoth Ogendo, Ibid

[23] See Okoth Ogendo’s paper; Property Theory and Land use Analysis “Discussion paper No. 209, (1974) Journal of E.A R & D. Vol. 5  (1975)

[24] See H.W.O. Okoth Ogendo; Approaches to Rural Transformation in East Africa.

[25] For a further analysis, see Okoth-Ogendo; teaching manuals on property law; Vol. 1

[26] Okoth-Ogendo, Ibid

[27] Ibid

[28] Ibid

 

 

[29] Okoth – Ogendo; Supra (Teaching manual on a property law, Vol.1)

[30] See Mungeam’s  “British Rule in Kenya”

[31] Ibid

[32] As per the East Africa (Lands) order-in-council.

[33] This was despite the fact that the Natives had no title to the lands they occupied, only rights of occupation.  See the judgment of the court in Mulwa Awanobi Vs Alidina Visram (1913) KLR 14

[34] For a better grasp of the instruments and mechanisms employed by the colonial government to secure acquisition of land for private use, one should see the following instruments;  1)  The 1897 Land Regulations 2) The (1899) General Principles of Land Settlement (opinion of the Law officers of the Crown, (1899 Dec)  3)  The East Africa (Lands) Order-in-council (1901)  4)  The Crown Lands Ordinance of 1902 especially articles 1, 2, 3, 4, 5 – 15 and lastly 5) the 1915 Crown Lands Ordinance.

[35] Cap 23 of the Laws of Kenya

[36] Cap 282 of the Laws of Kenya

[37] It should be noted that the Titles issued under this Act, (the L.T.A.) manifested recognition of existing rights and are not grants from the colonial government.

[38] Cap 281 of the Laws of Kenya

[39] See section 33 of the Act

[40] The Government Lands Act, Cap 280 of the Laws of Kenya

[41] Ibid

[42] The Registration of Documents Act.  Cap 285 of the Laws of Kenya

[43] Vide Art 11(b) of the E.A. Order-in-Council (of 1897)

[44] Cap. 300 of the Laws of Kenya

[45] (1938) 18 KLR 5

[46] 9 EALR 102

[47] 8 EALR 129

[48] Civil Case No. 113 of 1925

[49] Under the Native Lands Trust ordinance, the Governor could not set land apart for Mineral Development without consulting the Local Native Council.  It was also provided that the affected natives would be given alternative land.  Upon the discovery of Gold in Kakamega in 1932, the requirements of consultation and provision of alternative land were repealed by the Native Trust Land (Amendment) Ordinance.  The Repeal thus enabled the Government to evict the African and to settle Gold prospectors in the Area.

[50] Otherwise known as the Cater Commission

[51] Formerly there was the Crown Trust Board

[52] Government Lands Act (Cap 280 of the Laws of Kenya)

[53] Cap 282; upon the recommendation of the Commission on Land Consolidation and Registration (1965)

[54] But see S.163 of the Act (Cap 300)

[55] See S.164 of the Act for instance

[56] Pursuant to S.163 thereof

[57] Megarry and Wade, The Law of Real Property 6^th ed

[58] Can be specifically recovered. Maximum duration is not fixed since one cant tell when someone or his descendants will die

[59] Maximum duration fixed in time e.g. 99 years. Leaseholds are not real property and are classified under personalty property which cannot be specifically recovered but can be compensated.

[60] See Section 3 of the Interpretation and General Provisions Act, (Cap 2)

[61] See section 2

[62] See section 4

[63] Cap 266

[64] Cap 282 (Land is defined under immovable property)

[65] Cap 285(Land is also defined under immovable property)

[66] Cap 8 of the Laws of Kenya, section 3 thereof

[67] Art 11 thereof

[68] (1894) ALLER. 87

[69] (1884) 13 Q.B.D. 904

[70] [1940] 1 ALLER 260

[71] [1902] AC 157 at 162

[72] For a further exposition on this issue, see the decision of Blackburn J in Holland vs. Hodgson (1872) L.R. 7 C.R. (E.x.Ch) 328.

[73] ibid

[74] Supra

[75] [1895] AC 1

[76] [1957] 2 QB 334

[77] See Art 11 thereof

[78] Cap 8

[79] Cap 300

[80] See section 108 I.T.P.A. in particular section 108(b) (h); A lessee though entitled to remove any fixtures during the subsistence of the lease, he is required to leave the property the way he found it.  See also sections 41 and 71 of the RLA, section 41 allows a lessee to remove within 3 months of the leases expiry, any fixtures.  Similarly, section 71 allows licencees to remove any fixtures.

[81] Cap 306

[82] Cap 307

[83] Cap 372

[84] See the Decision of the Court in Ole Njogo V AG (1913 – 14) 5 E.A.L.R. 70, where Lake Naivasha was ruled to be a spring enclosed within Lord Delamere’s land and accordingly, owned by him.

[85] Cap 394

[86] Cap 411

[87] Cap 315

[88] Cap 292

[89] Act No. 21 of 1987

[90] (1936-1937) 17 KLR (Pts I-II) 20

[91] See section 108,(b)(h) of the ITPA

[92] (1950) 24 K.L.R. (P 45) 24

 

[93] In the former case (Shaw’s) the court explicitly stated that the principle had no application in Kenya.

[94] See Section 3 thereof

[95] Of 1882

[96] Cap 281 see section 3

[97] Cap 2

[98] For a further exposition, see the decisions of the court in Jordan V May (1947) K.B. 427 and Sumons V Midford (1969) 2 ch. 415.

[99] Cap 300 see section 2

[100] These categories have been retained in the ITPA

[101] The duration of the estate though limited is uncertain. No one can say when the death will occur of a particular person and all his future heirs nor is it certain that the duration will be perpetual.

[102] Maximum duration is fixed in time.

[103] Note however, that strict settlement are not possible under the Trusts of Land Act Cap290

[104] [1992] 2 AC 386

[105] Supra

[106] See also section 47

[107] See also section 106 of the ITPA (1882. Where the RLA applies, the period of tenancy and the duration of the Notice required to determine such a tenancy is the period by reference to which the rent is paid.  Similarly, under the ITPA, periodic tenancies for agricultural/manufacturing tenancies require a 6 months notice period for termination.  With respect to any other tenancy, a 15 days notice is required

[108] Rights in the soil of another

[109] See Duke of Sutherland vs. Heathcote [1892] 1 Ch 475 at 484 per Lindley LJ

[110] Cap 290

[111] Ibid

[112] Cap 300

[113] Okoth – Ogendo; Supra

[114] Cap 280

[115] Rights held of no Lord

[116] Supra

[117] Cap 280 where any person in whom there is vested an estate, interest or right in or over land dies intestate and without heirs, that estate, interest or right shall escheat to the Government.

[118] Note that section 45 of the 1925 Administration of Estates Act abolishes this doctrine in the U.K.

[119] Scmlla Properties Ltd vs. Gesso Properties (BVI) Ltd [1995] BCC 793

[120] i.e The Crown Land Ordinance 1902/1915.

[121] This power, usually exercised by the president, had been frozen by the 1915 c.l.o. (in relation to freeholds) and was only revived in 1965, see Act No. 14 of 1965, section 17 thereof

[122] Promulgated vide L.N. No. 631 and 632 of 1960

[123] Sch. 1 of Cap 160, The Law of Succession Act  reflects this position

[124] Note that agricultural leases are required under section 27(1) (a) of the GLA (Cap 280) to be for a “term equal in length to the period by the end of which the lessee is required by the lease to have completed the development thereby required of him”

[125] See Said Challi; The Law of Real Property; 3^rd Ed. (1911)

[126] Except in so far as it relates to restrictive covenants

[127] Such as Agricultural Act. Cap 318; The land Planning Act, Cap 303; the Water Act, Cap 372

[128] Cap 242

[129] See sections 119; 120; 121 and 123 et al for a grasp of the limitations imposed by Cap 242 on the powers of use and abuse.

[130] Cap 265

[131] Cap 303

[132] See section 27, Cap 303

[133] See section 10, Cap 303

[134] See section 24, Cap 303

[135] Cap 318

[136] See sections 48 to 63 of the Act

[137] See section 73 et al of the Act

[138] Ibid; see also particularly section 187 (3) (4)

[139] Cap 327 empowering the minister to sell/lease the said land for breach of a management order.

[140] Except in cases of restraints upon anticipation; see also section 12 for further void restraints/conditions

[141] Cap 302; see section 6 thereof

[142] Civil Appeal No. 133 of 1987 at Nyeri

[143] Cap 300

[144] Cap 281 sections 57, see also section 116, GLA, section 72, LTA,

[145] Cap 300 sections 131-135

[146] Cap 281

[147] See sections 128 – 130 RLA

[148] See sections 136 – 138 RLA

[149] Under section 27 and 28 of the R.L.A. Cap 300

[150] Rights held of no lord

[151] Unlike the position in the U.K. where the radical title was vested in the King/Queen

[152] Op cit

[153] Civil Appeal No. 4 of 1986

[154] Supra

[155] Cap. 290.  This Act pursuant to the proviso to section 4 of Cap 300, specifically overrides the latter.

[156] Cap 160

[157] Ibid

[158] Cap 290

[159] Supra

[160] See section 101 of Cap 160

[161] See section 28 Cap 300

[162] The are in fact subject to the same qualifications as those imposed on the similar powers possessed by the owner of a fee simple estate

[163] See section 88(1) RLA (Cap 300)

[164] See section 88(2) RLA (Cap 300)

[165] See section 88(3) RLA (Cap 300)

[166] Pertaining to easements, profits and restrictive covenants

[167] The latter two schools of thought are off-shoots from the natural Law school of thought.

[168] Civil Appeal No. 107 of 1985

[169] For a thorough exposition, see section 30 R.L.A.

[170] The proviso to section 28 RLA states ‘…..Provided that nothing in this section shall be taken to relieve a proprietor from any duty or obligation to which he is subject as a trustee.’

[171] See section 143 RLA

[172] (1972) E.A 227

[173] (1973) EALR 388

[174] supra

[175] HCCC No,54of 1976 (unreported)

[176] Civil Appeal No. 46 of 1977 (unreported)

[177] (plural Ahoi) usually a poor person who out of friendship on the part of the landowner is allowed to occupy and cultivate an area of land, paying no rent, but subject to the clearly understood condition that he acquires no interest whatsoever in the land and can be required to vacate at any time, his only right being to harvest standing crops which he had planted. He cannot acquire a prescriptive title to the land.

[178] Civil Appeal No. 140 of 1996

[179] See also Joseph Marisin vs. Joseph Kibilat Bargaliet Civil Appeal of 1999

[180]Civ. Case No.1400 of 1973 (Nairobi)

 

[181] With the Absolute proprietor as the Trustee.

[182] Civ. Case No.377 of 1968 (Nairobi)

[183] (1974) EA Section 26

[184] By implication; see Edward S. Limuli V Marko Sabayi, Civ. Case No. 222 of 1978 (Kisumu)

[185] English law knows of various kinds of Trusts ie express, constructive, implied and resulting trusts.

[186] Supra

[187] Civ Appeal No.42 of 1978

[188](1981) AC 787

[189] Civil appeal No. 71 of 1997

[190] See also Dr. Nik arap Ng’ok vs. Justice Moijo Ole Keiwaa, Civil App. No. 60 of 1997 Nrb

[191] See section 11(3) RLA and Section 46(1) RLA

[192] Supra

[193] A mortgage is defined in the case of Santley vs. Wilde (1889) 2 ch D 474 as a CONVEYANCE OF LAND  or an ASSIGNMENT OF CHATTELS as security for the payment of a debt or the discharge of an obligation for which it is given

[194] See sections 59 of the ITPA (1882) and 65 of the RLA, Cap 300

[195] Four-Maids Ltd vs. Dudley Marshall(Properties) Ltd [1957] Ch. 317

[196] See Megarry’s Manual of the Law of Real Property 5^th edition at page 430

[197] (1950) 24(1) KLR 17

[198] (1977) KLR 52

[199] See section 72(I) RLA, Cap 300 of the Laws of Kenya

[200] Similarly, see Rower J in Biggis Vs. Hoodonott (1898) 2 ch 307

[201] Civil Appeal No. 133 of 1999 Nrb

[202] Civil Appeal No. 80 of 1991 (unreported)

[203] Civil Appeal No. 177 of 1998 (unreported)

[204] (1912) A.C 565

[205] (1961) 1 WLR 261

[206] For similar judicial sentiments, see the cases of Salt V Northampton (1892) AC 1 and Dans V Symons (1934) ch 442.  In the former case, the court struck down an agreement by which the mortgaged property would vest absolutely in the mortgagee if the mortgagor defaulted.

[207] (1940) AC 613

[208] (1914) A.C 25

[209] (1978) 2 WLR 535

[210] See section 91 of the ITPA (1882) and section 72 (4) of the RLA for statutory provisions to that effect.

[211] See section RTA (Cap 281) and section 72 RLA Cap 300

 

[212] See section 63A and 64 of ITPA (1882)

[213] (1762) 2 Eden 110 at 113, per Lord Henley L.C.

[214] (1902) A.C 24

[215] (1904) A.C 323

[216] See also the Decision of the House of Lords in Reeves vs. Lisle (1902) AC 461 for a somewhat contrary opinion. In a nutshell, once the mortgage has been made, equity will not intervene if the mortgagor, by a separate and independent transaction gives the mortgagee an interest in the property, even if it may wholly or partly destroy the equity of redemption, such as an option to purchase or a long lease.

[217] (1977) KLR 52

[218] See section 69 (a) ITPA (1882)

[219] See the Decision of the court of appeal in KCB vs. James Osebe Civ. App. No. 62 if 1982 ‘…although there was no evidence of fraud or bad faith, or that the conduct of the auction was irregular or improper, that nonetheless the interests of the respondent as chargor were not taken into consideration.’

 

[220] (1989) 39 ch. D 638

[221] (1881) 6 App. Cases 698

[222] For a further exposition if this Right, see the case of Cummings vs. Fletcher (1880) 14 ch D.699 see also Githunguri vs. Jimba credit Civ. App. No. 161 of 1998.

[223] (1896) AC 187

[224] See Burns “Cheshire’s Modern Law of Real Property”.

[225] See also section 30 RLA wherein a person in the process of acquiring an easement by way of Adverse possession is declared to enjoy an overriding interest.

[226] A thing that forms a part of something larger or more important.

[227] See section 97 RLA generally

[228] See the second limb in the definition of easements section 3 thereof (RLA) ‘…to restrict its use to a particular extent….’

[229] See section 3(3) of cap 23, the Law of Contract Act

[230] (1848) 2 ph 774

[231] See section 83(3) RLA and section 11 ITPA

[232] (1583) 5 Co.Reg Vol. 13 K.B

[233] Supra

 

[234] That is they touch and concern the land under the ITPA section 11

[235] see section 101 – 102 of the RLA (cap 300) see also sections 44 – 47 of the ITPA

[236] See section 102 (1) (b) of the RLA (Cap 300)

 

[237] See section 102(1) (b) of the RLA (Cap 300)

[238] See section 118 of the RLA (Cap 300)

[239] Cap 160 of the Laws of Kenya

[240] (1945) A.C 304

[241] See section 104 RLA (Cap 300)

[242] See section 105 ITPA (1882)

[243] (1874) 10 LR Q.B 70

[244] (1966) EA 564

[245] (1957) EA 358

[246] (1965) 1 W.L.R. 1025

[247] (1944) K.B 368

[248]The Interesse Termini Doctrine was a rule under the Common Law that a lessee had to enter into possession before he was considered to have acquired an estate, thus, a lease was perfect upon entry.

[249] See sections 116 of the ITPA (1882) and section 52(1) of the RLA (Cap 300).  However, if the tenant is a protected tenant, i.e. a Tenancy arising under the provisions of Caps.301 and 296 and he continues to hold over, the period/length of the term created is the same as the previous term.

[250] Though the RLA (cap 300) does attempts to define a licence in section 3 thereof

[251] (1952) 2 Q.B. 384

[252] (1914) 1 K.B1 See also Re Sharp (1980) 1 ALL ER 198

[253] See Jones and Jones Ltd V Ian Kervillar (1909) 2 ch. 440

[254] [1965] 2 QB 29 ; See also Runda Coffee Estates Vs Ujagar Singh (1966) EACA 564

[255] See the editorial note in Inwards vs. Baker[1965] 2 QB 29

[256] (1673) Vough. 330 at 351

[257] This section guarantees the right to own property and protects property owners from being deprived of the same see in particular, section 75(2) of the constitution.

[258] See Cap 295 in particular section 6 thereof

[259] See Nathookhan vs. Chairman Mombasa Town Planning Authority Civil Case No. 116 0f 1930 where the Crown as successors in title, having given the plaintiff six months notice to demolish his house and remove the debris, was not liable to pay him compensation.

[260] Civil Appeal No. 252 of 1996 (Nrb)

[261] See also Re Kisima Farm Ltd (1978) KLR 36

[262] Civil Case No. 3923 of 1985

[263] [1972] EA 88

[264] Appeal No. 1 of 1981

[265] See also Limo vs. Commissioner of Lands Civil Appeal No. 6 of 1987

[266] See section 8 of Cap 295 and section 84 of the constitution generally.

[267] Civil Suit No.423 of 1996

[268] Cap 399 at Section 2 (c)

[269] Cap 406 at Section 3(1)

[270] See also Ocean View Plaza ltd vs. the AG Civil case No. 527 of 2001 ‘B’ and Amritlal vs. City Council of Nairobi Civil Appeal No. 47 of 1981.

[271] See Lloyds V Buttler (1950) 1K.B. 76

[272] Cap 22 of the Laws of Kenya

[273] See parts C and D of the limitation of Action Act, Cap 22 and section 7.  A person under disability may bring a claim for provision of land six (6) years after expiry of the prescribed 12 years

[274] See Lord Denning’s decision in  Fairweather vs. St Marylebone Property Co. Ltd (1963) AC 510 (1962) 2 AllER 288

[275] Civil Appeal No. 76 of 1998

[276] See also Peter Njau Kairu vs. Stephen Ndung’u Njenga, Leonard Michuki Muniu Civil Appeal No. 57 of 1997

[277] Civil Appeal No. 181 of 1996

[278] Civil Appeal No. 220 of 1998

[279] See Bilha Kanyi w/o Geoffrey Gathungu vs. Kabuchwa Gathungu Civil Appeal No. 38 of 2000 and section 38 of the Limitation of Actions Act (Cap 22)

[280] Civil Appeal No. 143 of 1998

[281] Civil Appeal No. 213 of 1996 at Nairobi

[282] Similar Judicial sentiments may be noted in the following decisions of the court of Appeal.ie Mwinyi Hamisi vs. the AG Civil Appeal No. 125 of 1997 Nrb and Francis Gitonga Macharia vs. Mwiruri Waithaka Civil Appeal No. 110 of 1997 Nrb

[283] See Public Notice by the Commissioner of Lands dated 20^th September 2002(appearing in the East African Standard of 1^st October 2002.)

[284] The Commission of Inquiry into the Land Law System of Kenya on Principles of National Land Policy Framework, Constitutional Position of Land and New Institutional Framework for Land Administration; November,2002

[285] Land records.

[286] Cap 280 Laws of Kenya

[287] Cap 283 Laws of Kenya

[288] Cap 284 Laws of Kenya

[289] Cap 318 Laws of Kenya

[290] Cap 282 Laws of Kenya

[291] Op cit

[292] Op cit

[293] Registered Land Act Cap 300 Laws of Kenya

[294] The political control was necessary to facilitate the structural framework within which the rights of access were to be enjoyed and maintain an equitable balance between the availability of land and the needs of individual members of the community.

[295] See H.W.O. Okoth Ogendo on ‘The Colonial Factor in Agrarian Law: The Foundations of Colonialism.’

[296] The idea that land belonged to an overlord who could grant it to his subjects was already inherent in the crown lands ordinance.

[297] An Indian statute, this Act had been extended to Kenya in 1897; it still applies in independent Kenya alongside the Registered Land Act.

[298] Now Cap 281 Laws of Kenya

[299] See Sec 22 of Cap 281

[300] In the Coast and Rift Valley provinces

[301] See Oduor M. (2001) Community Based Property Rights and the Management of Natural Resources in Kenya (L.L.B, Dissertation) Moi University.

[302] See Sec 2 of the GLA

[303] See the Preamble to the Act, Sec 4

[304] All conveyances, leases and licenses of, or for the occupation of government lands are to be done subject to the provisions of the Government Lands Act. The effect of this position is that where procedures prescribed by the Act are not followed, any titles subsequently issued are irregular.

[305] See parts III and IV of the Act, primarily Sections 4,7,9 & 19 of Cap 280

[306] See Sec 16

[307] This power of the president is however, delegated to the commissioner in certain limited cases under Chapter 155 (1948) sub-legislation. See sec 3 of the Act for a fuller analysis of delegated powers of the President to the Commissioner.

[308] Civil Appeal No.269 of 1997

[309] In Wreck Motor Enterprises vs. The Commissioner of Lands and Others Civil Suit No. 71 of 1997, the endorsement or signature of the president on an application to the Commissioner of Lands for unalienated Government Land is not sufficient to grant title over any land to anyone.  The suit land, in this case, was no longer unalienated land available for allotment.

[310] See sec 118 & 119

[311] See Sec 2 Cap 300

[312] See Sec 4 Cap 300

[313] Sec 27 of Cap 300. Such rights are indefeasible, save as provided for in the Act, and are to be held free from all other claims and interests. See generally Sections 27, 28, 28 & 30.

[314] Civil Appeal No. 272 of 1998

[315] Upon adjudication and registration, Trust lands cease to be Trust lands.

[316] Civil Appeal No. 264 of 1996

[317] For alienation of  Trust lands at the instance of the Government, see section 118 of the constitution and sections 7, 8 & 9 of the Trust Lands Act

[318] See section 7 of Cap 280

[319] Chapter 385 of the Laws of Kenya, section 4.

[320] Irregularities that occurred in the process of adjudication in the Mosiro Land Adjudication Area gave rise to the cases cited and to the minister’s comments that were reported in the Kenya Times.

 

[321] See section 25 of the Land Adjudication Act