LAW OF PROPERTY ON LAND/PROPERTY LAW NOTES

Properties and properties in land law theory

1.      The concept of Property

The concept of property emanates from Roman law wherein it was defined as ‘us utendi et abutendi re sua, quatenusiuris ratio patitur, ' the right to use and abuse a thing, within the limits of the law.' iusutendi. Today, the term us utendi is used in civil law and Roman law, is an attribute of dominium (ownership) indicating the right or power to use the property particularly by residing there without destroying its substance.

Barron’s Law Dictionary defines property as one’s exclusive right to possess, use and dispose a thing as well as the object, benefit or prerogative which constitutes the subject matter of that right.

Essentially, property designates those things commonly recognized as the entity in respect of which a person or group of persons have exclusive right. The right to ownership establishes the subject matter as ‘one’s own thing’ giving the person to whom such right vests the wherewithal to dispose or deal with the property in such a manner as he deems fit.

According to Oliver Wendell Holmes, property has two fundamental aspects. The first is the aspect of possession, that is, the incidence of control over a resource, a thing and a claim. The second aspect of property is that of title. This entails the expectation that others will recognize the owner’s rights to control the property even when he is not in the possession of it and refrain from unduly interfering with it. The title, or a right of ownership, is what establishes the relation between the property and other persons, assuring the owner the right to dispose of the property as they see fit. Some philosophers assert that property rights arise from social convention. Others find origins for them in morality or natural law.

The concept of property, therefore, boils down to such a thing as is capable of being owned by a person or a body or persons whether a physical object or a body of rights in relation to a given phenomenon. He who owns the property in a particular case enjoys the benefits of exercising certain rights over it which includes the right to use, extract gains from it, dispose it at will, lease it and lend it. These rights are protected as against other people by the state and any interference of someone’s right over their property by another person would invariably lead to liability under both civil and criminal law.

 

Property is not an absolute concept. The concept of what property means changes both in time and culture. Different groups and sub-groups value their own property and the property of others. Naturally this makes the definition of property difficult.

2.      Definition of Property

A property is defined as any physical or intangible entity that is owned by a person or jointly by a group of persons. Depending on the nature of the property, an owner of property has the right to consume, sell, rent, mortgage, transfer, exchange or destroy their property, and/or to exclude others from doing these things.

3.      Classification of Property

There are several classifications of property. In the first place, property is divided into real property, and personal property. Property is also divided, when it consists of goods and chattels, into absolute and qualified. Absolute property is that which is our own, without any qualification whatsoever; as when a man is the owner of a watch, a book, or other inanimate thing: or of a horse, a sheep, or other animal, which never had its natural liberty in a wild state. Qualified property consists in the right which men have over wild animals which they have reduced to their own possession, and which are kept subject to their power; as a deer, a buffalo, and the like, which are his own while he has possession of them, but as soon as his possession is lost, his property is gone.

 

Property in personal goods may be absolute or qualified without any relation to the nature of the subject-matter, but simply because more than one person has an interest in it, or because the right of property is separated from the possession. A bailee of goods, though not the owner, has a qualified property in them; while the owner has the absolute property.

 

Personal property is further divided into property in possession, and property or choses in action.

 

Property is again divided into corporeal and incorporeal. The former comprehends such property as is perceptible to the senses, as lands, houses, goods, merchandise and the like; the latter consists in legal rights, as choses in action, easements, and the like.

The existent types of property include:

·        Real property (land),

·        Personal property (physical possessions belonging to a person), private property (property owned by legal persons or business entities),

·        Public property (state owned or publicly owned and available possessions)

·        Community Property (this is an emerging concept connoting property owned by indigenous communities) and

·        Intellectual property (exclusive rights over artistic creations, inventions, etc.).

4.      General Characteristics of Property

Modern property rights are based on conceptions of ownership and possession as belonging to legal persons, even if the legal person is not a natural person. In most countries including Kenya, non-natural legal persons including companies, Co-operatives, Trusts and State Entities enjoy similar legal rights over property like natural citizens. 

 

Property rights are protected in the current laws of most states, usually in their constitution or in a bill of rights. The right to property is also prescribed in the international legal regime under the United Nations' Universal Declaration of Human Rights.

 

Traditional principles of property rights include: - XTICS OF PROPERTY

-        control of the use of the property:

-        The right to any benefit from the property (examples: mining rights and rent);

-        A right to transfer or sell the property;

-        A right to exclude others from the property.

 

 

Traditional property rights do not include;

-        Uses that unreasonably interfere with the property rights of another private party (the right of quiet enjoyment);

-        Uses that unreasonably interfere with public property rights, including uses that interfere with public health, safety, peace or convenience.

As a matter of fact, not every person or entity with an interest in a given piece of property may be able to exercise all possible property rights. For example, as a lessee of a particular piece of property, you may not sell the property, because a tenant is only in possession and does not have title to transfer. Similarly, while you are a lessee, the owner cannot use their right to exclude to keep you from the property except with proper notices.

Further, property may be held in a number of forms, such as through joint ownership, community property, public property, sole ownership or lease. These different types of ownership may complicate an owner's ability to exercise property rights unilaterally. For example, if two people own a single piece of land as joint tenants then, depending on the law in the jurisdiction, each may have limited recourse for the actions of the other. One of the owners might sell their interest in the property to a stranger whom the other owner does not particularly like.

Over the years, legal systems have evolved to cover transactions and disputes that arise over the possession, use, transfer, and disposal of property, most particularly involving contracts. Positive law now defines such rights, and the judiciary is used to adjudicate and to enforce property rights.

The concept of property is closely related to capitalism. According to Adam Smith, the expectation of profit from "improving one's stock of capital" rests on private property rights. It is an assumption central to capitalism that property rights encourage their holders to develop the property, generate wealth, and efficiently allocate resources based on the operation of markets. From this has evolved the modern conception of property as a right enforced by positive law, in the expectation that this will produce more wealth and better standards of living.

5.      Jurisprudential Basis of Property

The most prominent theory on acquisition of right to property is the labor theory of property. Theorists in this school of thought hold that you own your own life, and it follows that you must own the products of that life, and that those products can be traded in free exchange with others. "Every man has a property in his own person. This nobody has a right to, but himself."

 

According to Locke, the reason why men enter into society is the preservation of their property. Frederic Bastiat puts it thus:

"Life, liberty, and property do not exist because men have made laws. On the contrary, it was the fact that life, liberty, and property existed beforehand that caused men to make laws in the first place."

On the other hand, socialism is centered on a critique of the concept of property as understood by natural lawyers. Socialists state that, among other things, that the cost of defending property is higher than the returns from private property ownership, and that, even when property rights encourage their holders to develop their property or generate wealth, they do so only for their own benefit, which may not coincide with benefit to other people or to society at large.

However, a later emanation of socialism, namely libertarian socialism generally accepts property rights, but with a short abandonment period. In other words, a person must make (more or less) continuous use of the item or else lose ownership rights. This is usually referred to as possession property or usufruct. Thus, in this usufruct system, absentee ownership is illegitimate and workers own the machines or other equipment that they work with.

On the other hand, communism argues that only collective ownership of the means of production through a polity (though not necessarily a state) will assure the minimization of unequal or unjust outcomes and the maximization of benefits, and that therefore private property (which in communist theory is limited to capital) should be abolished.

Both communism and some kinds of socialism have also upheld the notion that private property is inherently illegitimate. This argument centers mainly on the idea that creation of private property always benefits one class over another, giving rise to domination through the use of this private property. Noteworthy, communists are not opposed to personal property that is "hard-won, self-acquired, and self-earned."

 

6.      Things are not the subject of property

There is a tendency to confuse property in a legal sense, with the subject matter of the proprietary interest. In the claim “this is John’s book” the apparent property is the book. The proprietary interest which property law is concerned with, however, is the relationship between John and the book. If there can be no proprietary interest in a thing then for the purposes of Property Law it may be impossible or difficult to assert rights to it or over it.

Historically, while the issue of the burial of corpses was a matter for ecclesiastical or church law, the common law held that there could be no property right in a body provided it was dead. Hence the general rule that there can be no property in a dead body. In the case of R v Price,the accused could not be successfully charged with indecent theft of his dead son’s body – which he was trying to cremate as part of a Druid ceremony -–because a dead body is not the subject of property.

However, there does appear that there were custodial rights in human bodies. A person in actual physical custody of the body has lawful possession unless the possession is made unlawful, for example by stealing a corpse.

 The misdemeanor of stealing corpses became particularly prevalent once corpses acquired commercial value. Surgeons and anatomists requiring corpses for dissection would pay high prices to “grave robbers” for such bodies. In 1832 the Anatomy Act (UK) was passed which legitimized dissection and created the statutory misdemeanor   not a felony of stealing a corpse.

The person with custody also had the duty to dispose of the body – usually executors, or if the deceased died intestate, the wife and other relatives. Where a person died without any known next of kin, the householder of the premises in which he died would have custody and therefore the duty to provide a decent burial.

The exception to the general rule seems to be where the body has undergone a process or other application of human skill such as stuffing or embalming. Thus one may have a property right to a “mummy” or preserved anatomical specimen.

In the case of Doodeward v Spence  the plaintiff succeeded in an action of detinue against the police for the return of the preserved foetus of a two-headed child which he had purchased and been exhibiting for gain. Griffith CJ stated that: so far as it constitutes property, a human body, or a portion of a human body, is capable by law of becoming the subject of property.

 

A distinction was suggested in this case between a corpse and a still-born foetus, which having never been alive could not be a corpse.

In the Canadian case of Edmonds v Armstrong Funeral Home Ltd, it was held that the relatives had a right to the possession and therefore the return of a part of the body of the deceased which had been unlawfully removed. This suggests that in the common law of Canada there may be a right of possession over body parts as well as the whole body.

In England however, this may not be the case. The right of possession of the body arises as a result of the duty to dispose of it. The fact that legislation has had to intervene to authorizes the disposal of parts of the body suggest that there is not such a right in common law.

 If parts of a body or indeed, the whole body are capable of becoming the subject of property, then is there any commercial value in them? Can they be traded? The question is relevant because what is property is structured by the law. In England commercial dealings in human organs is prohibited. However, the donation of human organs by the relatives of the deceased either at the deceased’s request or without it, are governed by the Human Tissue Act 1961. The fact that both Acts exist suggests, that the law recognizes the potential commercial exploitation of such property.

 

In addition, things like the sea, the air, and the like, cannot be appropriated; every one may enjoy them, but he has no exclusive right in them. When things are fully our own, or when all others are excluded from meddling with them, or from interfering about them, it is plain that no person besides the proprietor, who has this exclusive right, can have any claim either to use them, or to hinder him from disposing of them as he pleases. Thus, property considered as an exclusive right to things, contains not only a right to use those things, but a right to dispose of them, either by exchanging them for other things, or by giving them away to any other person, without any consideration, or even throwing them away. This is not possible with respect to these naturally occurring resources. 

7. Can Intangible things be Property?

Historically an understanding of what “property” is has also been hampered by focusing on physical “things”. While the object of a proprietary interest may be a physical thing, the interest itself will always be intangible, abstract, legal structures. Increasingly the objects of such interests are themselves intangible, for example, personality, likeness, reputation, ideas. A major reason for this is the commercial exploitation of intangible things and the need to recognize and protect proprietary interests in relation to these.

 Problems of this nature apply not only to spectacles, but to performances and performers rights. To some extent the law of contract and copyright legislation which is dealt with later can protect performers but in some instances this type of protection will be inadequate. For example, a contract will only bind those who are privy to it.

8. How the right to property may be lost

In general, the right to property is lost in three ways, namely; by the act of man, by the act of law, and by the act of God. It is lost by the act of man by alienation. But in order to do this, the owner must have a legal capacity to make a contract. Secondly, property may be lost by the act of man by the voluntary abandonment of the thing. However, this only occurs where the abandonment is purely voluntary. Thus, the title to the property is not lost when things are thrown into the sea to save the ship, the right is not lost. Further, even a voluntary abandonment does not deprive the former owner from taking possession of the thing abandoned, at any time before another takes possession of it.

The title to property is lost by operation of law. In the first place, this may occur as a result of a forced sale which under a lawful process of the property of a debtor to satisfy a judgment, sentence, or decree rendered against him, to compel him to fulfill his obligations. Secondly, property may be lost by operation of the law as a result of confiscation, or sentence of a criminal court. Thirdly, the property may be lost under the law by prescription, by civil death and by capture of a public enemy.

The title to property is lost by the act of God, as in the case of the death of animals, or in the total destruction of a thing; for example, if a house be swallowed up by an opening in the earth during an earthquake or is struck by lightening.

Noteworthy, the moment that the owner loses his possession, he also loses his property or right in the thing. But in general, the loss of possession does not impair the right of property, for the owner may recover it within a certain time allowed by law.

9. Right to property in Kenya

The concept of property in Kenya as is currently conceived is largely influenced by legal developments in England. Traditionally, property in England was looked at as land as reflected in the early crimes of trespass. However, with industrialization the view of property was widely enhanced as it eventually included technology, products and even ideas after the advent of the patent.

Initially, property was vested in the feudal lords who were largely part of the royal households. The rest of the citizenry were serfs who were required to work on the land and pay taxes to the feudal lords. With the formation of Parliament, the Royals control over land assumed less and less influence. People increasingly tried to enhance their rights to own property. Along with industrialization, more people became able to own property given that the concept of property was removed from that of land.

 The result was the contemporary view of property which centers on individualism as the main approach to property ownership. Thus, under the English law, property is largely owned by individuals. The right to property means that individuals have a right to own what they work for and the law protects their interest in the property.

This individual notion of property is contrasted with the concept of property which dominated before the colonialism. Essentially, before the advent of colonialism, ownership of property in Kenya was largely communal. This meant that rights to property in many respects vested in a body of people mainly marked by a clan or a tribe or even an extended household. All the produce and benefits that accrued from the land belonged to all the people of that particular clan.

Thus, with colonialism came the notion of notion of individual ownership of property in Kenya. As a result, many people lost their ancestral land during the colonial period.  Kenyans were compelled to change their viewpoint of property and the emphasis shifted in favour of individual property rather than communal property. The resultant product was a highly Europeanized way of looking at property.

Thus, prior to colonialism, crimes against property were rare given that land was held communally. Any criminal interference with the property was seen as being an offence against the whole community and therefore treated as a grave affair. However, with the changed perspective came new crimes against person hitherto unheard of such as trespass, theft, interference with property, conversion etc. With time, the change of how Kenyans viewed property was refined into the English way of looking at property. To date, the English laws dealing with property are relevant in Kenya.

10. Ownership and the criminal law

The idea that a person is asserting their rights to property in the honest, if mistaken belief, that they have a right to do so has given rise to a special defense in the case of theft or larceny of property. This is called a claim of right. It can be found in the old English law Larceny Acts, such as the Larceny Act of 1916.

Ownership or a belief in ownership confers rights against others to claim property when control or possession of it has been lost or transferred. If an accused can establish a claim of right he may be acquitted. This is an exception to the general rule that ignorance of the law is no excuse.

In the case of Ilena Bernhard the accused had been charged with demanding money with menaces with the intent to steal under the 1916 Larceny Act. The victim was her ex-lover who had promised to pay her a monthly sum of money for twelve months. Defaulting after the fourth installment, he returned to England. She came in pursuit and threatened to expose him to his wife and the press if he did not keep his word. She claimed that she believed she was entitled to the sums promised. The Court of Criminal Appeal held that a claim of right did not have to be founded correctly in law but that:

“A person has a claim of right within the meaning of the section if he is honestly asserting what he believes to be a lawful claim, even though it may be unfounded in law or in fact.”

A case in which this claim failed was that of R v Turner the accused had taken his car to be repaired and then removed it from the parking area outside the garage at night, using his spare key. He was charged under the 1968 Theft Act (UK). His defence was that he believed he had a right to take his own property, and that the garage was not in possession or control of the car. However the facts established that the car was being purchased under a hire-purchase agreement so the accused was not in fact or law the legal owner of the car. His defence failed and his conviction was upheld.

11. Possession in criminal law

In certain crimes, possession alone is considered to be a wrongful act. For example, in offences of carrying a weapon, the possession of such weapon as is culpable for the offence suffices as evidence of the wrongful act. In case of possession of drugs, the actusreus of the crime is entailed in the passion of the contraband item.

As per the Penal Code, possession is defined as:

 “Possession-

a)     “be in possession of” or “have in possession” includes not only having one’s own personal possession but also knowingly having anything in the actual possession of any other person, or having anything in any place (whether belonging to or occupied by oneself or not) for the use or benefit of oneself or of any other person…”

 

In law, possession is not defined. Only the two classifications of possession as defined above are highlighted, namely, actual possession and constructive possession. Actual possession exists when a person has something under his or her direct physical control. An example of this is form of possession is whereby a person has a particular item on his or her person or within his reach or has it located where only him has access to it.

On the other hand, constructive possession is a more difficult concept because it is based on a legal fiction. Generally, a person who has the power and intention to control something either directly or through another person is said to be in constructive possession of it. Nevertheless, the exact meaning of the term is usually determined by the context of the criminal situation at hand.

 

Possession can also be described as the state of having or owning something at a particular time. In law, possession is the control a person intentionally exercises toward a thing. In all cases, to possess something, a person must have an intention to possess it. A person may be in possession of some property (although possession does not always imply ownership).

 

Possession requires both control and intention. Possession is obtained from the first moment that both those conditions exist simultaneously. Usually, intention precedes control, as when you see a coin on the ground and reach down to pick it up. Nevertheless, it is conceivable that a person might obtain control of a thing before forming the intention to possess it. If someone unknowingly sat on and therefore had control of a $10 note on the seat of a train, he or she could obtain possession by becoming aware of the note and forming the intention to possess it. People can also intend to possess things left, without their knowledge, in spaces they control.

Possession can be obtained by a one-sided act by which factual control is established. This can take the form of apprehension (taking an object not in someone's possession) or seizure (taking an object in someone's possession). It can also be obtained through a two-sided process of handing over the possession from one party to another. The party handing over possession must intend to do so.

Most property possessed is obtained with the consent of someone else who possessed it. They may have been purchased, received as gifts, leased, or borrowed. The transfer of possession of goods is called delivery. For land, it is common to speak of granting or giving possession.

It is possible to legally obtain possession of a thing without anyone else's consent. First, you might take possession of something which has never been possessed before. This can occur when you catch a wild animal; or create a new thing. Secondly, you might find something which someone else has lost. Thirdly, you might take something from another person without their consent. Possession acquired without consent is a property right which the law protects. It gives rise to a right of possession which is enforceable against everyone except those with a better right to possession.

An intention to possess, usually called animus possidendi, is the other component of possession. All that is required is an intention to possess something for the time being. In common law countries, the intention to possess a thing is matter of fact. Normally, it is proved by the acts of control and surrounding circumstances.

 It is possible to intend to possess something without knowing that it exists. For example, if you intend to possess a suitcase, then you intend to possess its contents, even though you do not know what it contains. It is important to distinguish between the intention sufficient to obtain possession of a thing and the intention required to commit the crime of possessing something illegally, such as banned drugs, firearms or stolen goods. The intention to exclude others from the garage and its contents does not necessarily amount to the guilty mind of intending to possess stolen goods.

When people possess places to which the public has access, it may be difficult to know whether they intend to possess everything within those places. In such circumstances, some people make it clear that they do not want possession of the things brought there by the public. For example, it is not uncommon to see a sign above the coat rack in a restaurant which disclaims responsibility for items left there.

12. Possession and Intention

Possession of certain property or the means of acquiring possession may attract criminal liability. Possession is not an act done at a particular moment but a continuing state of things. Possession in criminal law may be possession of dangerous drugs or being in possession of the dye used in the making of stamps according to section 379 of the Penal Code. Possession is a very key component of offences against persons.

In Bentham, the Defendants were charged with possession of a firearm after a police raided on their premises. They argued that their intent was an immediate and unconditional one. Their appeal against the conviction was dismissed. Cain, L.J. stated as follows:

“We cannot access that the only intention which falls within the section is an intention immediately and unconditionally to endanger life.”

In Norristhe Court of Appeal held that a person can be guilty of an offence under the Firearms Act 1968, s. 16 if he has in his possession a firearm containing a cartridge which for some reason cannot be fired. The firearm was a modified weapon which was capable of firing live round. Someone previously had unsuccessfully attempted to fire the cartridge but it was incapable of being fired.

The Court holds that, provided a proper direction in intent is given, it will normally be sufficient for the judge to explain the definition of a firearm to the jury and to leave it at that so far as the actusreus is concerned. While the defendant needs to be in possession of a gun ready for use, this does not mean a gun loaded with effective ammunition. It can be ready for use if loaded with ineffective ammunition and can be so ready for use if the defendant believes that it is. The issue is whether the firearm is ready for use if and when the occasion arises. The term ready for use is a gloss on the statute but it illuminates the necessity for intent to endanger life. The real question will be with what intent the defendant had the firearm in possession. That intent is not defined by the physical capabilities of the bullet at the time when the trigger comes to be pulled. Knowledge by the defendant that the cartridge would not work would be relevant to intent. The prosecution need not, however, prove an immediate intent to endanger life.

The court certified a question for the House of Lords but declined to grant leave.

The question then arises whether the person in possession may retain possession or exercise possessory rights. In the case of Gordon v Chief Commissioner of Metropolitan Police, the plaintiff was acquitted of charges of running an illegal betting shop, Buckley LJ held that the plaintiff was entitled to succeed in his action to recover money found by him in the house of his employee – who had been convicted – because forfeiture did not apply to him.

Wrongful possession need not mean that the person challenging the possessor has a greater right.

In the case of Kosrae State v Molid Tolenoa  Federated States of Micronesia the court held that for the crime of larceny; Generally, the prosecution need not prove that the victim had an unassailable right to possession in the items stolen, only that the defendant had no greater right to possession of the stolen items.

(A)   PROPRIETARY RIGHT ON LAND

 

1.      Bundle of Rights

·        As per the Collins Dictionary, proprietary right is a right over or in respect of land which can be asserted against others, is that right which is not personal to given individual but which exist by reason of and as an incident to ownership of that land.

 

·        Land can be owned by way of partition or shareship. What is owned in this form of partition or shareship are bundle of rights which are due to the owner. These are bundle of rights  to land ranging from superior rights to simple rights

                                           i.         Right to sale

                                           ii.         Right of possession

                                          iii.         Right to Usufructus (this is the right to enjoy the fruits of the property)

                                         iv.         Right to lease

                                          v.         Right to charge

                                         vi.         Right to create an easement

                                        vii.         Right to keep out strangers

·        It is this bundle of rights which constitute an Estate. In common law an Estate represents the amount of interests in land with regard to ownership and usufruct (to enjoy the fruits of the property).

 

·        These bundle of rights may be temporarily surrendered by the owner thereby creating a specific form of ownership of land. For instance when a freehold owner surrender his right of possession in order to enjoy the fruits of his land he creates a lease.

 

·        A perfect example in the creation of this bundle of rights is when

                                           i.         A transferee from government –this is when a grant of  land is made by the government on fee simple basis or for the term of say 99 years. He becomes the freehold or a lease from the government.

                                           ii.         As owner of a fee simple he can lease the land to a 3^rd party for 10 years. The leasee may build premises which he can use for theatre hence creating a license another bundle of rights.

·        What therefore determines the nature of the bundle of rights is possession and usufructus (the nature of enjoyment of the fruits of the land)

·        The respect person therefore need not own the land and building but what bundle of rights he has to the land in terms of possession and Usufructus. This bundle of rights are referred to as an Estate In land.

 

 

 

 

 

(B)    STATE AS THE OWNER OF LAND

 

·        A state is said to be the absolute owner of any land anywhere. This is because

a.      In most case it is the state that gives grants to individual to own land in form of fee simple or a lease for a specific term.

b.      When a grantee of fee simple estate dies and leaves no heirs the land reverts back and vests in the state as bona vacantia. (Bona Vacantia means the property for which no one has a claim).

c.      All laws controlling land are promulgated by the state

d.      Approval for changing of grant to the state

e.      Compulsory accusation- State

 

·        This means whether the individual become owner by allocation of land through the National Land Commission, or under 1st Registration and Land’s act of adjudication process as a result of right of ownership subsisting under customary law, the land will revert back to state for lack of heirs.

·        This also applies where at the expiry of a leasehold allocated by the government, the government takes back the property.

·        Under the Lands Act, the National Land Commission, on behalf of the Republic of Kenya, after investigation grants leases of plots in towns for any term not exceeding 99years and agricultural land 999 years. The grantee becomes the owner and is subjected to the terms and conditions of the lease. He thus possesses a bundle of rights of conditions. If he parts with possession, he remains with the right of reversions during the period of the lease.

 

·        Under the Lands Act, the government can convert the 999 year lease to a freehold or 99 to 999 years. On conversion or expiry of the lease, a new lease is granted to either a new owner or the same owner. Such as an artificial person.

 

(C)   CREATION OF VARIOUS PROPRIETARY INTEREST

 

1.      Proprietorship and Ownership

 

·        Usually the word proprietorship is used to refer to ownership. But since the two words in a legal sense refers to the bundle of rights in land, thus they may refer to any of those rights ranging from freehold to an easement, including lease, mortgage or charge.

·        Ownership of land can be more than one person simultaneously.

 

2.      Co- ownership

·        There are 2 types of co-ownership existing in land ownership namely joint tenancy and tenancy in common

 

 

                                  i.         Joint tenancy

 

·        In joint tenancy two or more persons are treated as one owner.

·        A joint tenancy is known specifically through the principle of Jus-accrescendi (that is the right of survivor ship).

 

Jus-accrescendi- simply means when one of the joint tenant dies, the survivor becomes the sole owner of the whole interest or right in land.

Rules of intestacy therefore do not apply to the joint tenancy.

The deported tenancy cannot even dispose his interest under a will. He has nothing to pass to his heirs.

But when he becomes the sole owners he can pass the whole interest to his heirs.

A joint tenant can thus leave nothing to his heirs or can leave everything to the heir depending who has died first.

 

·        The joint tenancy has thus the unit of title and time.

 

                                 ii.         Tenancy in common

 

·        In this tenancy, the tenant can alienate the share which is fixed but not divided.

The principle of Jus accrescendi does not apply

The rules of intestacy and disposition by will apply.

The shares of the tenant in common may be equal or not out if is clearly known and can be established.

A tenant in common can sell his share to a third party.

 

·        Joint tenancy is suitable in properties owned by husband and wife and those of trusteeship.

In matters of husband and wife, the heirs are deemed to be the same hence the convenience of the system.

But during divorce and separation problem arise, which sometimes can be settled through suite on settlement of property or compromise on division of the property.

In case of trustees, again which trustees dies may not matter as what matters is which trustees is ready to take care of the administration of the land. Trustees interest is the administration of the land.

 

·        Tenancy in common is suitable for business partners who can determine their respective schemes.

 

(D)    CAPACITY

 

·        An individual competency to deal with land is subject to the competency to contract. Cap 23 of the law of contract is very critical. Thus the general principle of the law of contract apply.

·        Besides because land is peculiar than other contracts, because in land you are dealing with a bundle of rights  other conditions apply namely;

       i.         Under the law of insurance the principle of caveat emptor also apply to land. Caveat emptor means let the buyer be aware. This means the person dealing with land must understand the nature of bundle of rights he will acquire.

       ii.         Further the uberrimae fides- meaning of the at most good faith- transaction in land must be of good faith otherwise the parties must make full disclosure of all the facts in land. Hence searches are done before a contract in land is finalized.

 

 

(E)    VARIOUS PARTIES CAN DEAL WITH LAND

 

1.      Natural person

2.      Artificial persons

3.      Legal and Equity owners

4.      Infant or Minors

5.      Named women

6.      Corporation

7.      Unincorporated association

8.      Trust

 

 

1.      Natural Person

 

Under the law of contract any adult has capacity to enter into a contract. This includes contracts on land. The only condition is that they must be adults above 18 years. There are exceptions where natural persons are minors, married women, lunatics or drunkards.

 

2.      Artificial Person

 

The artificial persons include corporations, co-operatives and trade unions.

Corporations are legal persons having been given the legal personality by the law. Corporation can be classified into corporation aggregate and corporation sole. They may be described into Ecclesiastical corporations as trading or not trading.

 

Corporation aggregate- is a collection of persons who are united together into one society and who are followed by a perpetual succession of members so that the corporation is capable of existing forever. These include companies registered under the Companies Act and Statutory Bodies. They further include co-operative societies, University Incorporated under Acts of Parliament.

 

Such organizations have power to own land and deal with it in their name the only limitation is the doctrine of Ultra vires Companies. For statutory bodies they can only enter into contracts and own property to assist them to accomplish their authorities statutory functions.

 

Corporate Sole- This consist of single person occupying a particular office and each and every other person who succeeded him such as Bishop. The property is held by that person in the name of the corporation he represents.

 

 

 

3.      Unincorporated association

 

There include firms and partnerships, clubs and religious bodies. They are composed of fluctuating membership.

These organizations raise the issue of capacity in land ownership and already in land.

Land by these organizations is held by trustees under 3 legal frameworks;

 

i.                Under ( Trustee (Perpetual Succession Act) a trustee may be appointed by anybody- as association of person established for religious, educational, literacy, scientific, social or charitable purpose as trustees who shall be treated as a body corporation.

Upon incorporation, the registered trustees become a body corporate with a corporate name and seal.

ii.                Under the Land (Group Representatives) Act. The principle of registered trustees perpetual succession Act, was extended to trust lands by this Act.

In this case as land could not be vested in a tribe, clan or group because of fluctuating membership, a regulated trustee could be incorporated under the Land’s Act with perpetual succession in order to hold land on behalf of the group.

This act had advantages in that it enables the holding of large pieces of land which left divided minutely among the various members of the fluctuating group would not be economically viable. The act is applicable in North Eastern province.

 

iii.               Wakf Commission Act Cap 109 of the laws of Kenya established what we call Wakfs

Wakfs are religious, charitable and benevolent endowments or dedications of any property in accordance with Muslim Law. This is where on vests his land in chanty after the death of the whole family. Wakfs can be made for the benefit of individuals, families, communities for a religious or a charitable or benevolent purpose

All wakfs must be registered with the wakfs commissioners who will give consent to sell or lease any land under wakf

 

 

4.      Trusts

 

Trusts are governed by the law of equity. They have the capacity to hold and own land

As we have already seen

·        Trustee under perpetual succession act

·        Land group representatives Act

Ø  Wakf Commissioners are all based on the concept of trust but they mainly deal with unincorporated association.

There is however trusts which have no relationship with unincorporated association. There are private or charitable trusts which may be express as implied dependency on the mode of creation.

Express trusts are expressly created either by will, in writing or by deed or instrument. It can also be oral but not where land is the subject matter.

 

Unlike power of attorney- which is discretionary, trust must have 3 certainties

i.                Certainty of words- the person setting up the trust must show by express language that he intends to create a trust. This must be otherwise the holder of the property in the trust will hold it as a done

ii.                Certainty of the subject matter- 2 aspects

- The property vested in the trust must be clearly defined.

- The interest to be enjoyed by the beneficiaries must be clearly defined.

If this is lucking the trust will fail.

iii.              Certainty of objective

This is the purpose for which the trust has been created. The purpose and the beneficiaries must be specific and clearly named.

 

If land is the subject matter of the trust, it must be conveyed and duly registered in the names of the trustees as proprietors.

Charitable trusts arise when their purposes are charitable. In the case of income Tax special commissioner v sperisel (1891)

Act 531- a charitable trust is one which is formed for

i.                Relief of poverty

ii.                Advancement of education

iii.               Advancement of religion

iv.              Other purposes beneficial to the community

 

Other than for relief of poverty- charitable trust must be for the public benefit.

The power and management of trust property is spelt in Trustee Act Cap 167 of the laws of Kenya.

 

 

ADMINISTRATION OF LAND

 

A.     Statutes

 

The executive administration of land is carried out through the authority contained in various statutes largely of an executive nature. These are contained in the Lands’ Act.

 The executive administration of land in Kenya is vested in the secretary or Lands.

Other authorities such as the Lands’ Commission and the county government do administer some of the land.

 

B.      State Authority

 

Under Article 1 of the Constitution 2010- All sovereign power belongs to the people of Kenya.

 The people may exercise their Sovereign power either directly or through their democratically elected representatives.

The government administers all State Property including land for the benefits of its citizens.

The state through the concept of social contract, the state makes laws to ensure orderly possession and utilization of land.

 

 

C.     History of Government Control of Land in Kenya

 

·        Before the colonial government in Kenya all land was communal land. There were no titles. People owned as per their community or tribe.

·        The history of land controlling Kenya started with building of the Kenya-Uganda Railway. As the railway passed through the fertile, uninhabited lands, the British foreign office responsible for East African protectorate encouraged white settlers to occupy those properties in order to create a viable agricultural economy to pay office railway.

·        In 1920 Kenya became a colony. Before this time land was accrued by the settlers through treaties. For instance in 1897, the British crown signed a treaty with the Sultan of Zanzibar where land all the cost became part of the British crown. The British crown after the aforesaid treaty started issuing certificates of occupancy for 21 years.

·        In 1901 the order in council defined Crown Land as all public land subject to control by her majesty.  It should be noted since land settled by indigenous was not registered; it was considered unoccupied lands available for seizure. In 1915 the crown lands ordinance was amended to exclude land occupied by the natives.

·        At Independence the land policy was ironical. There was a negotiation for the British aid loans to compensate the departing settlers, but the definition of Crown Land and all the prevailing land legislation were merely changed into acts of parliament. The people who took power entered into the shoes the settlers.

·        The status quo before independence was maintained in independent Kenya. The government's lands Act was used to regulate the leasing and disposal of land by the government. The Commissioner of lands was empowered to lease lands within townships to 99 years and agricultural land to 999 years. He could convert the 999 years lease to freeholds. The commissioner of lands was responsible for collection of rents on government land, forfeiture of land for 120 payment of rent. He administered the procedures necessary for granting of permission for the submission of lands.

 

D.     Lands Office

 

The land office consist - of the

·        Land registry- of which the principal registrar of the title of Chief  Lands registrar is the government conveyancer.

·        Other departments under lands office Include – Survey, Settlement and land adjudication.

·        The department of settlement was concerned with the settlement of African farmers taking over from former European farms, as a whole unit or divided up into small units forming a settlement scheme.

·        The land adjudication department deals with adjudication of land or consolidation of land in trust land. The lands office further plays a critical role in the credit system of the country where land is used as a security-  by Banks etc.

 

Sheikh Mohammed Bashir Vs Commissioner of Lands (1959) EALR 1018

 

The plaintiff was granted a 99 year lease in the Nairobi City square with a condition that he should complete the erection of an hotel within 10 years. He failed to do the same and the commissioner of lands terminated at lease. In the high court and the court of appeal, it was held at the, the condition to build was a condition and not a covenant, hence the lease was properly terminated. The plaintiff appealed to the xx council which held that the condition was a covenant, and that the commissioner of lands had no right to terminate the lease.  Forfeiture of the government lease then must be decided by the court not by the commissioner since the ruling.

 

E.      The Land Control Board

 

This act came into force in 1967. under this act all transaction relating to Agricultural land have to be approved by the Land Control Board of the District in which the control area is situated within six months of the making of the agreement between the parties to the transaction.

 

Controlled transactions include- Under S.6(1) all Sales, transfers, leases, mortgages, partitions or other disposals or dealings with agricultural land.

 

A transaction is void if consent is not given by the Land Control Board of the given District.

 

S. 6 (3) Gives the exemption of transaction that which do not require consent.

·        Transmissions under the will or intestacy.

 

Section (9) 1 Consent may be granted or refused to based on

·        The economic development of the land or

·        Maintenance of good husbandry of the land.

Refusal occurs

·        Where the transferee is unlikely to farm the land well.

·        Develop the land in adequately.

·        Unlikely to use the land profitably.

·        The transferee has sufficient agricultural land.

·        Prices paid are unfair or disadvantageous of any of the parties

·        Land is hold to persons not a Kenyan citizen.

·        Company whose members are not citizens.

 

The Land Control Board works with the Lands Office.

 

 

Challenges to this Land Control Act

 

a)     It has not deferred land grabbing.

b)     The act is used as an engine of fraud. Land owners receive money but no consent. It makes land owners change their mind and void the transactions.

c)     The board is corrupt.

 

F.      Compulsory land acquisition

 

Any interest on land can only be Compulsory acquired under very stringent conditions under the Constitution. That it is

a)     in the interest of- Defense,- public order

·        Public Safety-  public morality

·        Public health- town or country

·        Promotion of planning public benefit

b)     Acquisition must justify any hardship to the owner

c)     There must be prompt payment of full compensation. In compensation the following should be considered

·        Market value of the land

·        The damage sustained by reason of severance of the land

·        Injury to the owner in terms of property or income

·        15% of market value of the land to be added in consideration of the compulsory nature

 

 In the case of the new Mungu Sisal Estate Limited versus AC, civil case No 320of 1969- the case was concerned with the quantum of compensation. It was held that compensation should be prompt of the full compensation at the market value of the property and interest which at that time was 60%.

 

 

Leases

 

National Land Commission

 

·        This is a constitutional independent government commission whose main function is to manage Public land on behalf of the national and County Government.

·        The commission has power to initiate an investigation into present or historical land injustices and recommend appropriate redress, and monitor and have oversight responsibilities over land use planning throughout the county.

·        The institution was officially established under the National Land Commission

·        Act 67(2) of the Constitution the commission's function are enumerated

a)     Manage public land on behalf of the national and County governments

b)     Recommend a national land policy to the national government

c)     Advice the national government on a comprehensive program for the registration of title in land throughout Kenya.

d)     Conduct research related to land use of natural resources and recommend to appropriate authorities

e)     To initiate investigation on its own initiative or on a complaint, into present or historical land injustice and recommend appropriate redress

f)       Encourage the application of traditional dispute resolution mechanisms in land conflicts

g)     Access tax on learned and premium on immovable property in Kenya in any area designated by law

h)     To Monitor and have oversight responsibilities over land use planning through the country

 

 

 

Under the national land commission act the commission shall have feather functions such as;

 

a)     On behalf and with the consent of the national and county governments, alienates Public land

b)     Monitor the registration of all rights and interest in land

c)     Ensure that public land and land under management of the designated State agencies are sustainably managed for the intended purpose and for future generations.

d)     Develop and maintain the effective land information management system at National and County levels

e)     Manage and administer stop all unregistered trust land and unregistered

f)       Develop and encourage alternative dispute resolution management mechanisms in land disputes handling.

g)     The commission is mandated to ensure that all unregister land is registered with 10 years from the date of commencement of the ACT. Parliament may extended period

h)     The commission may establish County Land management for the purpose of managing public land.

 

UNREGISTFRED INTERESTS WHICH OVERRIDE UNREGISTERED TITLE

1.      INTRODUCTION

Section 30 of the Registered Land (Repealed) Act, in recognizing the centrality of overriding interests in the enjoyment of estate in land stated that "unless the contrary is expressed in the register, all registered land shall be subject to such of the following  overriding interests as may for the time being subsist and affect the same without their being noted on the register. The registration of Titles (Repealed) Act, section 23(1) of the Act provided that the Certificate of Title is conclusive evidence of proprietorship, subject to the encumbrances, easements, restrictions and conditions contained therein or endorsed thereon. This provision was interpreted by the Court of Appeal in Republic through’Olum v Angungo and others [1988] KLR 529 as follows:

Pursuant to section 23(1) of the Registration of Titles Act, the Certificate of Title was conclusive evidence that the plaintiffs were the absolute and indefeasible owners of the land subject to encumbrances, easements, restrictions and conditions that may be endorsed on the title….

However, the foregoing interpretation is only taken as a general rule. Court decisions such as Barclays D.C.O v Patel [1970] EA 89 (Sir Charles Newbold, P. Duffus, V.P and Law JA) and Kamau v Kamau, (1984) KLR, 539 (Kneller, Hancox JJA and Nyarangi Ag, JA) invoked the concept of trust where the holder of the unregistered interest has not taken a positive step to register the interest and found that the title holder in the circumstances, held the unregistered interest in trust of the easement holder. Under the Land Registration Act, the scope of overriding interests to proprietorship is expanded to expressly recognize spousal rights over matrimonial property, as well as trusts, including customary trusts. Section 28 of

the Act states as follows:

Unless the contrary is expressed in the register, all registered land shall be subject to such of the following overriding interests as may for the time being subsist and affect the same, without their being noted on the register (a) spousal rights over matrimonial property; (b) trusts including customary trusts; (c) rights of way, rights of water and profits subsisting at the time of first registration under this Act; (d) natural rights of light, air, water and support; (e) rights of compulsory acquisition, resumption, entry, search and user conferred by any other written law ....

This sub-part a nalyses the various categories of unregistered interests in land, how they are created and the extent to which they affect registered interest in land.

 

2.      ADVERSE POSSESSION

Adverse possession is a process by which the entire ownership of an estate is extinguished by lapse of time.  In Ann Itumbi Kiseliv James Muriuki Muriithi [2013]eKLR Adverse Possession has been defined as a method of gaining legal title to real property by the actual, open, hostile and continuous possession of it to the exclusion of its true owner for the period prescribed by state law. The period at the expiry of which the right to adverse possession accrues is defined by section 7 of the Limitation of Actions Act, as being twelve years, section 7 states: "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," at the expiry of which the proprietor of land may not commence an action to recover the land. The principles upon which the doctrine of adverse possession turns in Kenya have been well encapsulated in the Court of Appeal decision of Kinyua v Simon Gitura Rumuri Nyeri Civil number 265 of 2005, the case involved a dispute over all that parcel of land known as Nyaki/Giaki/Kihurine/299 measuring 12 acres. The High Court allowed the respondent to be registered as an adverse possessor of the entire land, thereby precipitating the appeal. It was admitted fact on appeal that:

       i.         Of the 12-acre piece of land, the respondent had occupied 8 acres;

       ii.         The respondent had occupied the land between 1972 and 2003;

      iii.         The respondent had openly occupied the land, put up a homestead and undertaken substantial development on the land;

     iv.         The respondent's possession of the land between 1972 and 2003 had been continuous and uninterrupted.

The Court of Appeal, in upholding the Superior Court decision and finding that the respondent had adversely acquired the 8-acre piece of the land that he had occupied uninterrupted between 1972 and 2003.

The principles evident in the foregoing decision are that for a claim for adverse possession to uphold, it must be demonstrated that there has been an open, peaceful but unpermitted possession of an estate in land for uninterrupted period exceeding twelve years. The right accrues only to that part of land that is not only possessed, but also in which some positive act, as would be done by the proprietor of land, has actually been done by the adverse possessor for the period in issue. In the case of Ndiema Samburi Soti v Elvis Kimtai Chepkeses, Eldoret C.A number 136 of 2005 the appellant was found not to have adversely possessed the suit land because firstly, he failed to prove that he was in actual possession of the entire suit land as he claimed for the prescribed period.

Secondly, he was in possession of part of the suit land pending completion of sale of the piece of land to him by the proprietor, thus with the consent of the proprietor. The presence of consent divested the appellant of the claim for adverse possession.  In the case of Nyoro Kimwe v John Anderson Githinji, the appellant was aggrieved by the High Court decision' granting the respondent the right to adverse possession of Land Reference Number Kiambaa/Ruaraka/ T67 ("the suit"). It was undisputed fact that:

       i.         The appellant was the registered proprietor of the suit land;

       ii.         The appellant lost possession of the suit land on 18 July 1980 at the expiry of a vacation notice that the appellant had issued to the respondent, but which the respondent defied;

      iii.         The appellant did not permit the respondent to remain on the suit land;

     iv.         It was not until the year 2001 when the appellant asserted his right to the land when he approached clan elders who in turn gave the respondent  six months vacation notice; and

      v.         The respondent took positive steps to develop the land by sinking boreholes, putting up structures and farming.

The Court of Appeal held thus that the respondent was in adverse possession of the portion of land that he possessed; not exclusive possession of the suit land. The land was therefore apportioned into two equal parts, with one part being registered in the appellant's name and the other part being registered in the name of the respondent.

Other than the foregoing principles, adverse possession also turns on a number of principles. Namely;

1.      The estate must be owned by someone; someone must have a good title to the estate, being a better title than anyone else. The person with the better title to the estate needs not necessarily be in possession of the estate. Such that, a proprietor of land who dies and therefore incapable of actual possession of land does not cease to have a better title to land by the mere reason of death, without more.

2.      Where title is acquired by way of adverse possession, the previous owner's right to recover land by ejectment/ eviction is debarred by lapse of time, with time running on the first day on which the action to adversely acquire land could have been brought, but was not brought. Put differently, adverse possession is dependent on the clement of time to determine whether a person has adversely acquired land. The adverse possessor must have continuously possessed the land. Such that, in the event that an adverse possessor is disposed or discontinued from possessing land, then the time for dispossession or discontinuance is material to determining whether in fact, the adverse possessor had in fact acquired rights over the land.

The adverse possessor must have possessed land continuously for twelve years from the time that proprietor was dispossessed or discontinued. The principle is well enunciated in the case of Samwel Nyakenogo v Samuel Orucho Onyaru Kisumu CA number 24 of 2004 where the Court of Appeal stated that "in order to acquire by statute of limitations title to land which has a known owner, that owner must have lost his right to the land either by being dispossessed of it or by having discontinued his possession of it. The Limitation of Actions Act, on adverse possession, contemplates two concepts: dispossession and discontinuance of possession. The proper way of assessing proof of adverse possession will then be whether or not the title holder has been dispossessed or has discontinued his possession for the statutory period and not whether or not the claimant has proved that he has been in possession for the requisite period. Whatever constitutes dispossession has been restated by Lord Lindhoy, MR in the case of Littledale v Liverpool College (1900) 1 Chp. 19, 21 as follows:

The next question therefore, is what constitutes dispossession of the proprietor. Bramwel, L.J. in Leigh v Jack said at 273, that to defeat a title by dispossessing the former owner "acts must be done which are inconsistent with his enjoyment of the suit (land) for the purpose for which he intended to use it."

Regarding the requirement that the person claiming adverse possession must have been in continuous and uninterrupted possession of the suit land, the court in Githu v Ndete (1984)KLR 776 set out instances when possession may be deemed as having been interrupted in the following words:

Time ceases to run under the Limitation of Actions Act either when the owner takes or asserts his right or when his right is admitted by adverse possessor. Assertion occurs when the owner takes legal proceedings or makes an effective entry into the land. Giving notice to quit cannot be effective assertion of the right for the purpose of stopping the running of time under the Limitation of Actions Act ....

Where the proprietor of land is dead and at the time of death, the proprietor of land was in possession of the land, the adverse possessor must demonstrate that the deceased person was the last person entitled to the land and that the adverse possessor had possessed the land continuously for twelve years from the time of death of the deceased person. Where the demised land is held upon trust specifying the period within which the trustees may recover the land, the adverse possessor must demonstrate that he has possessed the land continuously for twelve years from the time that the estate of the trustees was extinguished. A mortgagee in possession adversely acquires the land at the expiry of twelve years from the date of assuming possession, and no right of redemption can be exercised by the mortgagor in respect of the land afterwards.

 

3.      For a person to acquire land through adverse possession, the possession for the prescribed time must be evidenced by acts of use and enjoyment of the estate claimed; there must be evidence that the possessor has dealt with the estate in the same way as an owner might have been expected to deal with it. Such that, if a person does something that an owner would not be expected to do, for instance; seeking permission from a third party before using the land, that is a conclusive statement the adverse possessor is not in fact in possession of the land. Section 15 of the Limitation of Actions Act reinforces this principle in the following words:

For the purposes of this Act, no person is taken to have been in possession of any land by reason only of his having made a formal entry thereon, and no continual or other claim upon or near any land preserves any right of action to recover the land.

Where a person acquires an estate in unregistered land by adverse possession, the title of the previous owner is automatically extinguished. For the case of registered land, however, the registered proprietor is the owner of the estate and has power to deal with the estate subject to any overriding interests noted in the register, unless and until someone is registered as proprietor instead. Such that, the general rule is that a registered title to the previous proprietor to land cannot be extinguished automatically; there must be some procedure by which the register can be changed, so as to show the adverse possessor as the new owner, once the title of the registered proprietor has been barred. Court decisions have been consistent in this regard.

In Spectrum Investment Co. v Holmes, [1981] 1 WLR 221 the court held that where a squatter had been registered as a proprietor of a lease, the ousted previous proprietor could no longer surrender the lease as the English Land Registration Act, 1925, gave the registered proprietor the exclusive power of disposition. In Central London Commercial Estates v Kato Kagaku, [1998]4 AII ER 948 the court held that the proprietor could not surrender a lease because any surrender would take effect subject to the statutory trust in favour of the adverse possessor, which is an overriding interest.  See also Mark Wonaccott (2006), Possession of Land, Cambridge: Cambridge University press.

Section 38(1) of the Limitation of Actions Act authorizes a person who claims to have been entitled to land by adverse possession to apply to the High Court for an order that he be registered as proprietor in place of the registered proprietor.  Indeed in the case of Mbugua Njuguna v Elijah Mburu Wanyoike and another, CA number 27 of 2002, the court stated “by section 38(1) a person who claims to have been entitled by adverse possession to land may apply to the High Court for an order that he be registered as proprietor of the land in place of registered proprietor…a title by adverse can be acquired under the limitation of Actions Act to part of the parcel of land to which the owner holds title. Such a claimant must prove that he has been in exclusive possession of the land openly and as of right and without interruption for a person of 12 years after dispossessing the owner and adverse possession can be acquired under the Limitation of Actions Act for part of the land. The mere change of ownership of the land which is occupied by another under adverse possession does not interrupt such person's adverse possession. This was stated in the case of Githu v Ndeete (1984) KLR 776.

In the case of Samwel Nyakenogo v Samuel Otucho Onyaru, Kisumu civil appeal number 24 of 2004, the respondent, who had been in exclusive possession of the portion of the suit land openly, uninterrupted and without permission of the proprietor for about 19 years was found to have acquired the suit land by adverse possession, notwithstanding the death of the registered proprietor. The Court said;

In our view, the purported application for letters of administration in respect of the deceased land West Kitutu/Mwakibagendi/28 which was confirmed on 15 June 1999 did not interrupt the respondent's adverse possession of the portion bought from the deceased....

A suit to enforce a claim for adverse possession is commenced by way of an originating summons, supported by an affidavit attaching a certified extract of title. Order 37, rule 7 of the Civil Procedure

Rules, 2010 states that:

An application under section 38 of the Limitation of Actions Act shall be made by originating summons. (2) The summons shall be supported by an affidavit to which a certified extract of the title to the land in question has been annexed. (3) The Court shall direct on whom and in what manner the summons shall be served.

It will be remembered that the use of originating summons to commence a suit is intended for simple claims that are not necessarily protracted. This presupposes, therefore, that enforcement of adverse possession is a simple claim. This may, however, turn out not to be the case. The framers of the rules of procedure, aware of such an eventuality, have given Courts the discretion to either request for further facts to support the originating summons, or, in its volition presume that the suit had been commenced by way of plaint, in which case, the Affidavits filled will be construed as pleadings, with or without amendments. It will also be remembered that not all land registration regimes recognize ‘an extract of title' required to be annexed to the Supporting Affidavit. Courts have held that, for instance, for the case of land registered under the Registered Land (Repealed) Act, a Certificate of Search suffices as the extract of title. In the case of Johnson Kinyua v Simon Gitura Rumuri, Nyeri civil appeal number 265 of 2005 the Court of Appeal was of the view that certified extract in Order 37 of the Civil Procedure Rules refers to titles under other systems of land registration and not to Registered Land (Repealed) Act (RLA) type of registration; that under the RLA type of registration, a search certificate meets the requirements of the relevant law.  The onus is on the person claiming adverse possession to prove. In the words of Kneller, J (as he then was) in Kimani Ruchine v Swift, Rutherfold & Co Ltd: (1980) KLR 10

The plaintiffs have to prove that they have used this land which they claim as of right: Nec vi, nec clam, nec precario (No force, no secrecy, no evasion). So the plaintiffs must show that the company had knowledge (or the means of knowing, actual or constructive) of the possession or occupation. The possession must be continuous. It must not be broken [or any temporary purpose or by endeavours to interrupt it or by any recurrent consideration ... No right of action to recover land accrues unless the lands are in the possession of some person in whose favour the period of limitation can run. The possession is after all adverse possession, so the statute does not begin to operate unless and until the true owner is not in possession of his land. Dispossession and discontinuance must go together; See sections 9(1) and 13 of the Limitation of Actions Act. So where the use and enjoyment of the land are possible there can be no dispossession if the registered and rightful owner enjoys it. Also, if enjoyment and use are not possible ....

3.      EASEMENTS

Easements are common law rights enjoyed by a person over the land of another. They include right of way, right of light, right of water, profits, among others. Whereas easements are nowadays recognized as incorporeal hereditaments, that is, objects of property in themselves, initially, easements were construed as rights appurtenant to corporeal hereditaments, that is, a privilege which could be obtained for the benefit of the corporeal laud. For there to be declared an easement, four essential requirements must be satisfied:

       i.         There must be a dominant tenement and a servient tenement. That is, an easement does not exist in gross, but can only be appurtenant to (related to) a dominant tenement. A dominant tenement may be the adjoining land to, which an easement (such as a right of way) is sought across another's land (servient tenement). A transfer of dominant tenement does not extinguish the easement; the easement passes with the land so that an occupier of the dominant tenement, including a lessee, can enjoy it. As in the case of Leech v Schweder (1894) 9 App. Cases 463 at 474. The casement is not personal to the occupier, but to dominant tenement, unless the occupier of the dominant tenement is the very owner of the servient tenement, in which case, no easement exists.

       ii.         An easement must confer a benefit on (accommodate) the dominant tenement. The benefit conferred to the dominant tenement is not necessarily analogous to personal advantage to the occupier of the land; the concern is how the easement makes the dominant tenement better and more convenient property, such as by increasing its general utility, conferring access, among others. Refer the case of Mason v Shrewsbury and Hereford Ry (1871) L.R. QB 578 at 587.

      iii.         The dominant and servient tenements must not be owned and occupied by the same person. In its very nature, easement is a right in the soil of another (in alieno solo). Such that, one cannot have an easement over his own land; one cannot have rights against himself.  Refer the case of Metropolitan Ryv Fowler [1892]1 QB.165 AT 171.

     iv.         The easement must be capable of forming the subject matter of a grant. Although in practice many easements are established by long user, the presumption always is that a grant was once made; that is, easement must have been granted by a deed. The underlying principle behind this requirement is that proprietary interests are fixed by law and finite in number. Easements are therefore not open to interests which do not conform to the rules about the general nature of casements. Megarry and Wade in their "The Law of Real Property" have identified certain rights which are incapable of being considered as easements, including the right of a party A to drain rainwater falling on A's land into B's ditches; the right to receive a radio or telephone signals over B's land; the right to A to have the wall of his house protected from weather by an adjoining B's house. This is because such listed rights are too uncertain in their ambit to be easement and might require expenditure by the servient owner, contrary to the principles for enjoyment of easements.  Also, it will be remembered that an easement does not confer a right to either possession or joint ownership of the servient tenement, but only the right over servient tenement. As in the case of Copeland v Greenhalf (1952) ch. 488 at 498.

 

Under section 32 of the Limitation of Actions Act, where any way or watercourse or the use of any water has been enjoyed as an easement peacefully and openly as of right and without interruption for twenty years, the right becomes absolute and indefeasible. Even if the right has not been registered against the title, section 3 7 (b) of the Act provides that the title holder holds the easement in trust of the person who has acquired the easement under section 32 of the foregoing Act. The said section 37 (b) states:

 

An easement acquired under section 32 of this Act does not come into being until a copy of the judgment establishing the right to the easement has been registered against the title to the land affected thereby, but is, until that time, held by the person for the time being registered as proprietor in trust for the person who has acquired it.

 

In Barclays D. C. 0. v Patel [1970] EA 89 the Court of appeal affirmed the position under section 37(b) by stating that:

It is clear that the words of section 23 (of the Registration of Titles Act) are to be read subject to certain limitations and that the absence from the certificate of title of certain interests in land is not conclusive that those interests do not exist ... Also, there can be no doubt that rights which are by law inherent to the ownership of land, such as the right to support of the land itself and ,the right to receive water from adjoining land, exists and may be enforced notwithstanding that no memorandum of such rights appears on the register or on the certificate of title either of the land itself or of the land which has the burden of providing the support or of permitting the flow of water. .. if the easement arises by operation of law, even though the operation of law comes into existence by reason of express acts of the owner, then the easement will exist over the land and have effect, notwithstanding the fact that it does not appear on the certificate of title. In this case, as I have already stated, the easement, of a way of necessity arose by operation of operation of the law on the division of the original farm into back plots and front plot. The easement never appeared on the register or on the certificate of title of any of these plots, but so long as the easement of a way of necessity exists by operation of law thus long will the easement continue to have effect over front plot, now the Henning plot, even if it is not entered on the register or on the certificate of title.... 

Similarly, in Kamau v Kamau, the Court of Appeal held that enjoyment of easement is actionable if obstructed. The Court stated:

"A right of way and a right to take water are affirmative easements for they authorize the commission of acts which are injurious to another and can be the subject of an action if their enjoyment is obstructed ... The right of way across the respondent's land was a necessity for the appellant ... If the footpath and .the bridge over the respondents land to that of the appellant's husband was a way of necessity and an easement by operation of law, it would continue to exist for as long as the necessity existed, notwithstanding that it was not referred to in the Certificate of Title to the respondent's land (the servient tenement) ... for these reasons, I would allow this appeal, set aside the judgment of the High Court and instead give judgment for Ruth against Monica for a declaration that Ruth 15 entitled to a right of way over the land reference Chania/Makwal789 registered of Monica to Ruth's land reference Chania/Makwal792 for herself, members of her family, her servants, agents, invitees and/or licencees on foot. .. Furthermore, Ruth must have her declaration that she is entitled to have a furrow over Monica's land to Ruth's land with a bridge over that furrow carrying the right of way mentioned in the previous declaration. Ruth must also have an order directing the Land Registrar, Kiambu, to register these rights relating to a way to the furrow, the bridge carrying the right of way over the furrow, and the water from the river Karamaino along the furrow, when there is water from the river flowing along it, against the title of Monica's parcel Chania/MakwaI789... "

 

The species of easements include rights of way; rights of light; rights of water; rights of support; rights of air; and rights of fencing.  The law recognizes a right of way as an affirmative easement authorizing a party to do that which would be or appear to be injurious to the owner of another land (the servient tenement).The Land Act at Part X thereof deals with "Easements and Analogous Rights." Section 136 of the Act defines "dominant land" as the land for the benefit of which any easement is created, while "servient land" is the land of the person by whom an easement is created.  An easement benefits dominant land, but burdens servient land.

Any disturbance of a right of way is unlawful and preventable. The Chancery Division of the High Court, in Lane v Capsey (1891) 3 Ch. 411 held as follows in regard to disturbance of right of way: "Any disturbance of a way is unlawful which renders the way unfit for the purposes for which it was granted, to the injury of the person entitled to the way. Thus, there would be an unlawful interference if the way is so damaged by vehicular or other traffic that the grantee is unable to use it, or if the way is either wholly or partially obstructed by being built upon, or if the servient tenement is ploughed up so that the way cannot he used ... "

Kenyan courts have also enforced the right of way in the case of James Ngugi Mbugua and another v Grace Wairimu Mwithiga, Nairobi High Court civil case number 1174 of 2002 (O.S). The case involved a dispute over a four metres wide road passing alongside a common boundary of two parcels of land, namely, L.R. number Kabete/Kibichiko/163 registered in the name of the deceased Mbugua Ngugi. The plaintiff ‘s were the administrators of the deceased land. The other parcel of land was L.R. number Kabete/ Kibichiko/162 registered in the name of the defendant ("defendant's land"). The road in issue passed from the main road through the defendant's parcel of land to the deceased land. The use of the road had been enjoyed since the year 1956 till 2002 when its enjoyment was interfered with. The Court, in granting the application held that "in law, overriding interests are said and known to "run with the land." In the circumstances the plaintiffs' right of access cannot be taken away at the whim of the defendant since it subsists for as long as the necessity for the easement exists."

Most critically, the right of way is acquired pursuant to section 32 of the Limitation of Actions Act. The way must have been enjoyed continuously for a period of20 years preceding the date of invocation of registration. The relevant part of the provision states:

Where.... (b) any way or watercourse, or the use of any water, has been enjoyed as an easement ... peaceably and openly as of right, and without interruption, for twenty years, the right to such access and use of light or air, or to such way or watercourse or use of water, or to such other easement, is absolute and indefeasible.

The lapse of time is a critical requirement for one to be able to claim right of way against the owner of the servient tenement. In Govindji and another v Sifa Insurance Company Ltd (2003) KLR 466, Githinji, J (asd he then was), the Court declined to grant the enjoyment of the right of way over the plaintiff's land on the basis that the way had not been enjoyed by the defendant continuously for 20 years. It is interesting to note that the Court also declined to grant the easement of the right of way on the basis that because the land was registered under the Registration of Titles Act, the easements that would be' enjoyed were only those endorsed on the Certificate of Title. The Court held as follows in this regard:

Pursuant to section 23(1) of the Registration of Titles Act, the certificate of title was conclusive evidence that the plaintiffs were the absolute and indefeasible owners of the land subject to encumbrances, easements, restrictions and conditions that may be endorsed on the title ... Under section 22 of the Limitation of Actions Act (Chapter 22) an easement of way over the plaintiff's plot could only be acquired if the defendant had enjoyed access to that way peacefully and openly as right and without interruption for 20 years since the plaintiff acquired the property.

 

The court's reasoning, particularly on the requirement that an easement be specifically endorsed on the Certificate of Title may under the Registration of Titles (Repealed) Act for it to be enjoyed, may be contrasted with the element of trust in enjoyment of easements such as right of way under Registration of Titles Act, as developed by the Court of Appeal decisions of Barclays D. C. 0. v Patel and Kamau v Kamau, (1984) KLR, 539 (Kneller, HAncox, JJA and Nyarangi, Ag JA) discussed in the preceding parts of the sub-topic on easement.

 

4.      PROFITS

In the case of Duke of Sutherland v Heathcote (1892), a profit a prendre is the right to take something off another person's land. The thing taken must be part of the land such as mineral, crops or wild animals existing on the land; and it was decided that Lowe v J.W Ashmore Ltd (1971) Ch 545 at 557 the thing taken, must, at the time of taking, be capable of ownership. Thus, a right to hunt or fish in another's land exists as a profit as it confers the right to take creatures living on another's land, which, when killed, are capable of being owned. This can be contradicted from a right to take water from a pond in another's land or the right to water cattle in another's land, which exist as easements, not profit. This is because, water, is neither owned by anyone, nor is water strictly part of the soil. Where a profit a prendre is enjoyed by one person to the exclusion of everyone, it is known as a several profit. Where a profit a prendre is enjoyed in common with others, it is known as a profit in common, or a right in common.

 

CONCLUSION

Enjoyment of registered land is not absolute, but subject to the recognized overriding interests. Whereas the general rule is that overriding interests must be registered for them to be enjoyed, where the statutory period specified for one to enjoy the overriding interest has lapsed, notwithstanding that such interests are not registered, the proprietor of land is deemed to hold such interests in trust of the beneficiary of the interests.

 

LAND TRIBUNALS

INTRODUCTION

In this chapter we discuss the creation, jurisdiction and sample decisions that have either been rendered by or appealed from the decisions of the National Environment Tribunal, Business Premises Tribunal and the Land Acquisition Compensation Tribunal.

1.      THE NATIONAL ENVIRONMENT TRIBUNAL

Environmental management ensures sustainable utilization of natural resources in accordance With predetermined principles. Such principles include sustainability, intergenerational equity, principle of prevention, the precautionary principle, the polluter pay principle and public participation.  The principle of sustainability promotes use of natural resources in a way and at a rate that does not lead to the long-term decline of biological diversity, thereby maintaining its potential to meet the needs and aspirations of present and future generations.

The precautionary principle calls for precaution in the making of environmental decisions where there is scientific uncertainty. It requires that all reasonable measures be taken to prevent the possible deleterious environmental consequences of development activities. The need for Environmental Impact Assessment falls under this principle, as it assesses the impact of proposed development activities and ensures that any likely adverse impacts on the environment can be dealt with. The Polluter Pays Principle requires that polluters of natural resources bear the full environmental and social costs of their activities.  While the principle of public participation ensures environmental democracy, ensuring participation of local communities in the environment and development decisions that affect their lives

In Kenya, environmental management prior to 1999 was done exclusively by use of sectoral laws contained in about 77 statutes. In 1999, the Environmental Management and Coordination Act (EMCA) was enacted in a bid to coordinate the sectoral laws on environment. EMCA establishes a number of institutions mandated to perform distinct functions in environmental regulation.

The highest policy making organ under EMCA is the National Environmental Council which formulates and enforces policy standards for the protection of the environment. The principal organization of government responsible for implementation of environmental policies is the National Environmental Management Authority (NEMA). NEMA supervises and co-ordinates matters that relate to the environrnent. Within counties, the EMCA authorizes the Cabinet Secretary for Environment to appoint County Committees chaired by the respective County Commissioners, with the mandate of discussing and making decisions on matters that relate to proper management of the environment within the province or district.

 

EMCA also establishes specialized committees such as the Technical Advisory Committee which advises NEMA on Environmental Impact Assessment Reports; National Environmental Action Plan Committee is mandated to develop 5-year national environmental action plans for consideration and adoption by Parliament; and the Standards and Enforcement Review Committee which advises on water quality and Standards and procedure for discharging effluents into the environment. EMCA has two disputes resolution bodies the Public Complaints Committee (PCC) and the National Environmental Tribunal (NET). PCC is charged with the mandate of investigating allegations of complaints against any person or NEMA in relation to allegations of environmental degradation.NET hears appeals from decisions of the Director General, NEMA and/or Committees of NEMA. The core principle governing environmental protection in Kenya is that of sustainable development which is facilitated by the codified public interest litigation in section 3(4) of EMCA.

In the execution of its mandate, the National Environmental Tribunal (NET) has resolved disputes touching on various aspects of the environment. For instance;

1)      In the case of James Mahinda and others v Director General, NEMA and another,(Tribunal Appeal number NET/15/2006 of 2007), the applicant sought that the second respondent, Universal Corporation Ltd, be stopped from operating its factory within the neighborhood of LR. number 8325 North of Kikuyu Township on grounds that the second respondent factory was operating in a residential zoned area; that the factory emitted offensive fumes, vapor and noise; and that the company discharged liquid effluent into open drains. The Tribunal declined to restrain the second respondent from operating the factory. The appellants failed to prove that the factory was operating in a residential zoned area. The area was being used for a mixture of residential, commercial and industrial purposes.

 

Secondly, there was no evidence produced to show that the factory emitted offensive, fumes and vapours and generated offensive noise; there was no evidence among the appellants who had been chocked by fumes or of livestock belonging to any of the appellants having been treated at any time for coughing. Further, that there was no evidence of open burning of any rubbish and no evidence of any liquid effluent, apart from storm water, being discharged into open drains. Regarding claims of noise, the appellants had not taken any steps to carry out any noise level measurements themselves, thus could not contradict the sound measurements carried out by the second respondent, which was within internationally accepted standards. The case is instructive that the burden to prove breach of environmental regulation lies with the person alleging such breach.

 

Whereas it is desirable to conduct an Environmental Impact Assessment (EIA) study before undertaking a project, not all projects would require preparation of an EIA study. In such instances, the developer prepares an EIA project report and submits the same for approval by NEMA. In an EIA project report, the rigours stipulated in the EIA and Audit Regulations, 2003 of gazettment, radio announcements in official and local languages among others, are not required. The report, though, would be submitted to lead agencies among others.

 

2)      The case of Nakumatt Holdings Limited v Director General, NEMA and another (Tribunal Appeal No. NLT 10/02/2005) considered the question as to whether an EIA Project Report submitted by Great Properties Limited (“second respondent”) in support of its application for an EIA license for the development of a housing estate on Plot L.R number 209/10829, Nairobi, was sufficient to sanction the development of the project. The land on which the housing estate was to be developed adjoined Nakumatt headquarters off Mombasa Road. The second respondent had commenced construction of the cut on being informed of the need for an EIA licence, it stopped construction. The Director, NEMA, approved the EIA Project Report and exempted the second respondent from carrying out a full EIA study, thereby prompting the appeal to the Tribunal.

 

According to Nakumatt, the air pollution levels in the area were higher than the WHO standards for long term human exposure and the heavy traffic density and 24-hour industrial operations produced high noise levels for a residential development. Further, Nakumatt argued that the proposed development to construct a 350-unit housing estate in an area where no less than 13 industries were located was ‘out of character with its surroundings.’ Nakumatt therefore argued that the project needed a full EIA study to be approved, not just the Project Report alone, which denied the appellant of an opportunity to provide comments. The Tribunal held that EIA licensing process assesses the likely significant impacts of a proposed project on the project.

 

In deciding on the nature of the likely impacts, account is taken of the status of the environment within which the proposed project would be undertaken. Factors such as air pollution, traffic noise and other features of the environment in an area off Mombasa Road on which the proposed development was to be carried out were therefore relevant considerations. Whereas the situation of the proposed development in an industrial area or an area of mixed development was a material consideration, such a designation was indicative of environmental considerations that might arise.

 

What would be more critical to the Tribunal would be to ascertain the actual status of the environment in the locality. Considering that the quality of air, the level of traffic noise and the quality of water and other features of the environment in the locality were within internationally recommended limits for human habitation, there was no rationale to reverse the approval by the first respondent. That in any event, the second respondent had put in place sufficient mitigatory measures that would manage any adverse potential adverse environmental impacts that might arise from the project. Lastly, that before taking the decision, the first respondent consulted lead agencies as a number of potentially affected neighbors, including the appellant, thus the appellant's claim that it had been denied of an opportunity to provide comments on the project was unsustainable.

 

3)      However, even more instructive on the need for an EIA study vis-a-vis EIA project report before undertaking a development is the case of Narok County Council and another v NEMA and others (Tribunal Appeal No. NET/07 of 2006). In this case, the appellants, Narok County Council and the Kenya Tourism Federation, appeal against NEMA (first respondent) and Wasafiri Camp Ltd (second respondent), challenged NEMA’s EIA certificate of approval to the developer, the second respondent, as being contrary to EIA Regulations. The developer had sought to construct a lodge/camp in the environs of the Maasai Mara Game Reserve.

 

The appellants’ grounds of appeal were that first, within fourteen days after receipt of the EIA study report, the first respondent did not invite public comments. Secondly, that the first respondent did not hold any public hearing on the project or seek the participation of major stakeholders and affected persons such as the appellants. Thirdly, the first respondent did not address itself to the issue of cumulative environmental impact the project would have on the environmentally fragile Maasai Mara ecosystem before the approval.

 

Further, the appellants argued that the construction of the camp was carried out without the consent of the area Land Control Board as to the leasing and change of user from agricultural to commercial purposes; that the second respondent did not apply for and obtain presidential exemption from the relevant provisions of the Land Control Act, considering that the members of the second respondent were not all Kenyan citizens; that the second respondent carried on the development of the project without first seeking and obtaining development authority of the Narok County Council; that the second respondent carried on with the said development without first seeking and obtaining a certificate of compliance and the approval of the Director of Physical Planning; that the second respondent drilled a borehole without authority from the Water Resources Management Authority; and that the second respondent generally carried on an illegal construction capable of causing irreversible pollution and ecological deterioration of the fragile Maasai Mara ecological system. Lastly, that the first respondent approved the EIA project report despite the fact that the report did not comply with the requirements of the Environmental Impact Assessment and Audit Regulations, particularly failing to provide an opportunity for public participation in the report.

 

In its response, the first respondent disputed the locus standing of the first appellant to prefer the appeal and that the appeal did not disclose any reasonable cause of action as contemplated in section 129(1) of EMCA; that the concerns of all stakeholders were borne in mind before the requisite approval was given, subject to the terms and conditions it considered appropriate, to which the second respondent confirmed acceptance. According to the second respondent, the first respondent was not under any legal obligation to invite public comments upon receipt of the project report; that there were no clear environmental issues that had been legitimately, procedurally and legally put forth to the Tribunal; that the grounds of appeal were emotive and personal business interests disguised as environmental concerns that could not hold vis-a-vis the benefit of expertise provided by an expert opinion on the impact of the environment; that the second respondent acted with in all the laws desired of it respecting environment, health and security; and that whereas there were likely to be some environmental impacts in relation to the proposed development, there were and had been disclosed sufficient mitigation measures to deal with the same as envisaged in EMCA.

 

On whether the second respondent ought to have presented an EIA Study Report or an EIA Project Report, the Tribunal noted that the appellant’s ground that the respondents were obliged to invite public comments was unfounded. However, due to the sensitive and fragile nature and uniqueness of the Mara ecosystem, the Tribunal noted that the appellants were right to invoke Regulation 10(2) and 10(3) of the Regulations to demand that a full EIA study ought to have been conducted. The Tribunal held that an EIA study report and the process provided by the law of EMCA be carried out.

 

4)      Further, in the case of A Abdalla, Chairman, Donholm Phase 5 Residents’ Association and another v Director General, National Environment Management Authority (NEMA) and another (Tribunal Appeal No. NET/38/2009), in which the appellants sought orders from the Tribunal to stop the second respondent, Jane Ngonyo, from constructing storeyed apartments in their neighborhood in Donhohm Phases, to cancel an EIA license issued to the developer and to order demolition of the second respondents building.

 

The Tribunal held that whereas the second respondent commenced construction of the five-storey building intended for use as residential apartment Without first obtaining NEMA's approval and license and subsequently took steps to remedy the situation by applying for and obtaining NEMA’s approval and EIA license, NEMA did not have adequate chance to fully regulate the development and the approval contravened express provisions of law regarding EIA. Secondly, the Tribunal noted that the second respondent took steps to apply for an EIA license after NEMA’s intervention, but she did not appoint an EIA expert to prepare a project report in support of her application for development approval and issuance of an EIA license.

 

More critically, the second respondent departed from her commitment and express presentations to NEMA which formed the basis of NEMA’s approval by representing to NEMA that the flat would be a three-storey building instead of five-storey building. Two of the second respondent’s floors were therefore constructed without NEMA’s approval. Thirdly, that the public was denied the opportunity to participate in the development before commencement as the second respondent failed to conduct stakeholder consultations. The Tribunal therefore found that the second respondent failed to legal requirements regarding EIA, specifically EIA requirements for description of the nature and design of a project and defiance of the Tribunal’s previous Stop Orders. The second respondent was thus ordered to demolish two of the five floors of her building which had been constructed without NEMA approval and NEMA would supervise the demolition.

The upshot in the foregoing cases is that Environmental Impact Assessment is a systematic examination conducted to determine whether or not a project or activity will have any adverse effects on the environment. The developer is required to prepare a project report and submit it to NEMA for approval. If NEMA is satisfied with the project description and the proposed environmental management plan, NEMA may not mandate a full environmental assessment study. When projects or developments to be undertaken do not pose substantial risks as to warrant an Environment Impact Assessment Study, such projects are undertaken once a project report is submitted to NEMA and a license issued accordingly.

However, if a party is aggrieved with the approval or issuance determined. Once the project is approved, a developer is required to obtain approval of development plans from the relevant local authority. In Nairobi, for instance, development plans are approved by the City Council of Nairobi. Such approved proposals, pursuant to the provisions of the City of Nairobi (Building) By-Laws, 1948, and Local Government (Adoptive by-laws) Building Order, 1968,are to be commenced within a period of twelve months of the date of the approval. If the proposals are not commenced within twelve months of the date of the approval, or are not completed within two years of such date, then the approval would be null and void and the carrying out of any work there under after such lapse would be illegal; the developer would in the circumstances be obliged to seek extension of the approval of the proposals.

Lastly, under section 64(1) of EMCA, NEMA is empowered to direct a fresh Environment Impact Assessment Study evaluation to be carried out. This power is exercisable where there is substantial change or modification in the projector if the manner in which it is operated poses an environmental threat which could not be foreseen at the time of the study, evaluation or review, or if it is established that the information or data given by a proponent in support of his application for an environmental impact assessment license under section 58 was false, inaccurate or intended to mislead. Such powers are undertaken mostly where there is a full BIA study.

 

 

2. THE BUSINESS PREMISES TRIBUNAL

The Business Premises Tribunal is a creature of section 11 of the landlord and Tenant (Shops, hotels and Catering Establishments) Act, (Chapter 301, Laws of Kenya) to handle disputes relating to controlled tenancies. A controlled tenancy is a tenancy of a shop, hotel or catering establishment that is either not reduced in writing, or if it is in writing, is for a period not exceeding five years, is determinable within five years from commencement thereof, or is specified by the Cabinet Secretary, to be a controlled tenancy. Controlled tenancy may be terminated or altered by issuing at least two months’ notice in a prescribed form. In the case of Lall v Jeypee Investments Ltd( [1972] EA 512), it was held that a landlord issuing a termination of tenancy notice had to count the date of effectiveness of notice from the time of receipt of the same by the tenant; and the notice itself had to be expressed in the prescribed form. In the Words of Madam, J:

“I do not accept the argument that the landlord should be exonerated because he used the form that was available to him at the time he gave his notice. In my opinion, it matter not that at the time of giving of notice by a landlord, no form has been prescribed or there is in existence a prescribed form which is not in conformity with the provisions of the Act. It is quite useless to serve a notice which is not in conformity with the provisions of the Act. A landlord giving notice must strictly comply with subsection (5). If I may use a Word from the judgment of Plowman, J in Zenith Investments (Torquay) Ltd v Kammins Ballrooms Co. Ltd (No. 2) [1971] 1 WLR 1032 at page 1036, the Court is forbidden by subsection (5) to enforce any notice which is not given in strict conformity with the provisions of the Act."

The tenancy notice must specify the grounds upon which the issuing party is seeking termination, alternation or reassessment of a term of the tenancy, and must notify the receiving party to notify the issuing party in writing, within one month of receiving the notice, whether or not he agrees to comply with the notice. A party receiving a termination notice is required to notify the issuing party within one month of receipt of the notice as to Whether he complies with the notice. Also, a party receiving the termination notice is entitled to make a reference to the Business Premises Tribunal, before expiry of the notice period, if he wishes to contest the termination.

The tenancy notice must specify the grounds upon which the issuing party is seeking termination, alternation or reassessment of a term of the tenancy, and must notify the receiving party to notify the issuing party in writing, within one month of receiving the notice, whether or not he agrees to comply with the notice. A party receiving a termination notice is required to notify the issuing party within one month of receipt of the notice as to whether he complies with the notice. Also, a party receiving the termination notice is entitled to make a reference to the Business Premises Tribunal, before expiry of the notice period, if he wishes to contest the termination.

Reference of the matter to the Tribunal automatically stays the tenancy notice till the Tribunal determines the reference. Worth noting is that controlled tenancies survive the tenant; death of a tenant does not, of itself terminate a controlled tenancy. In the case of Waljee v Rose, it Was held that:

“It is to be noted that there is nothing in the [Landlord and Tenant (Shops, Hotels and Catering Establishments) Act] to suggest that death of the tenant would terminate a controlled tenancy under [the] common law: ‘A tenancy does not determine by the death of a lessee, but will vest in his legal personal representatives, who are entitled to give or receive the proper notice to quit.’

For a tenancy notice to be valid, the issuing party must demonstrate a firm and settled intention to undertake the grounds upon which the tenancy notice is issued. This issue was considered in the case of Kobil Petroleum Limited v Almost Magic Merchants Limited (Nairobi High Court civil Appeal number 931 of 2003). In this case, the respondent, a landlord, issued a termination notice dated 21 December 2001 to the appellant, the tenant on grounds that the respondent intended to demolish and construct a modern petrol station and shopping complex and it could not reasonably do so without obtaining possession of the premises, and that thereafter, the respondent intended to occupy the suit land for a period of more than one year.

The appellant in response filed a reference with the Business Premises Tribunal under section 6 of the Act. Before commencement of the hearing of the reference, the appellant filed an application under section 12(1) (j) of the Act for the respondent to give discovery of the documents which were in its possession or power relating to any matter in question on the reference, which application was granted. The appellant further sought for the termination to be set aside. The Tribunal Found that the respondent had shown an intention to reconstruct the premises as per the building plans produced by its architect and allowed the notice to take effect, thereby prompting the Appeal.

The appeal was premised mainly on the ground that the Tribunal was wrong in finding that the respondent had a clear and settled intention to develop the premises; that what was expressed by the respondent was mere hope, rather than reasonable prospect of carrying out the intention.

Relying on the case of Auto Engineering Ltd v Gonella and another ((1978) KLR 248), the appellant averred that ‘a firm and settled intention’ must be established on the part of the respondent. Secondly, that the Tribunal prejudiced the appellant when it ordered the respondent to produce only such documents that it wished to rely on as production of documents is meant for disclosure of all documents in a party’s possession; limiting discovery prejudiced the appellant. The respondent opposed the appeal on grounds that the appellant had not demonstrated that obtaining approvals from NEMA or under the Petroleum Act was an insurmountable task. Further, that the respondent had established a firm and settled intention to construct a ‘modern petrol station and shopping complex.

The High Court held that the Tribunal, in ordering the landlord to make discovery of documents which it wished to rely on in the suit, erred by Limiting the scope of the application of the Rule on discovery of documents. However, the appellant failed to demonstrate how the failure to produce the documents prejudiced its case; that the documents sought did not go to the crux of the issue before the court and the appellant was merely fishing for evidence. On the issue as to whether the respondent had established a firm and settled intention to develop the premises, the High Court noted that the respondent had produced approved architectural drawings, act of quantities for the intended project, building plans for the construction of a modern petrol station and shopping complex, approved by the City Council of Nairobi, whose extension would not be insurmountable.

The court also noted that no change of user was necessary from the Commissioner of Lands to develop the project and that there was no evidence that the respondent was in breach of the petroleum Act considering that the premises were already in use for sale of petroleum products. Thus, the Court found that the respondent did indeed demonstrate a firm and settled intention to carry out the intended reconstruction.

An appeal lies from the decision of the Tribunal to the High Court. The jurisdiction of the High Court in controlled tenancies is appellate, not original. This was emphasized in the case of Mark Wachira and others v Kenya Road Services Ltd (Nairobi HCC (ELC) number 1841 of 2007), in which the applicant, Kenya Road Services Ltd, sought to have the orders for injunction previously issued by the Court set aside on grounds that the plaintiffs/respondents had failed to pay rent to the applicant and that the applicant intended to develop the premises and a development plan had already been approved. It was the applicant’s case that the respondents were not keen to prosecute the references that they had filed with the Tribunal. The application was opposed on grounds that the Tribunal had not ordered the respondents to pay rent over the suit premises but that it would establish how much the applicant would be entitled to in rent. Further, that the respondents closed their case and it was the applicant who -was yet to call a witness to enable the tribunal makes a determination. Further, that the High Court’s jurisdiction in controlled tenancies is limited to appellate jurisdiction; that it is the Tribunal that has original jurisdiction to hear tenant’s complaints and make a determination.

The Court noted that the proceedings were still pending before the Tribunal and were yet to be adjudicated upon by the Tribunal. It was the applicant that was dragging the conclusion of the Tribunal proceedings. The application for setting aside restraining orders was dismissed with costs. Further, in the case of Alex Kadenge Mwendwa v Grace Wangari Ndikimi and others (Nairobi High Court civil case number 2974 of 1991), the High Court was emphatic that the primary jurisdiction to resolve controlled tenancy dispute vests with the Business Premises Tribunal. That it was incompetent of the plaintiff to decline to present himself to the jurisdiction of the Tribunal, citing as a justification, the fact that the High Court is vested with superior powers. When the deceased tenant submitted a business premises dispute before the Tribunal, he thereby activated a legal process which required the plaintiff to deal in the first place with that Tribunal, and not to leapfrog to the High Court.

The decision of the High Court in matters of controlled tenancy is final, and the Court of Appeal lacks jurisdiction to entertain an appeal in such matter. The Court of Appeal, for instance, dismissed the case of David Thiongo T/A Welcome General Stores v Market Fancy Emporiumon, inter alia, ground that section 15(4) of the Act rendered the High Court decision in the matter of controlled tenancy, final, thus the Court of Appeal lacked jurisdiction to entertain the appeal.

 

3.      THE LAND ACQUISITION COMPENSATION TRIBUNAL

All land in Kenya may be compulsorily acquired by the Government for public use in exercise of the power of eminent domain. However, upon such acquisition, the title or interest holder thereof is entitled to prompt payment in full and access to court process if aggrieved with the compensation process. The Tribunal that formerly adjudicated over the disputes relating to land compulsorily acquired is the Land Acquisition and Compensation Tribunal.

Under the now repealed Land Acquisition Act (Chapter 295, Laws of Kenya), when the Cabinet Secretary for Lands identifies suitable land for compulsory acquisition, the Cabinet Secretary could direct the Commissioner for Lands to compulsorily acquire the land. The Commissioner then published in the Kenya Gazette a notice of intention to acquire the land and to serve every person who appeared to the Commissioner to be interested in the land with the notice. The Commissioner for Lands was required to mark and measure the land identified for compulsory acquisition and to cause a plan prepared for the land. The Commissioner then appointed a date, at least 21 days after the publication of the acquisition notice to all interested parties, to hear claims to compensation by persons interested in the land.

This process of determining claims is called an inquiry and it is a legal requirement that an inquiry notice be published at least fifteen days before the inquiry is conducted, and served on every person who appears to be interested in the acquired land. In determining claims, the Commissioner took into account the proof of Claims during the inquiry, and made an award to each person whom he had determined to be interested in the land. The Commissioner then served each interested party with a notice of award and an offer for compensation.

However, not all interested parties to land compulsorily acquired are satisfied with the award of compensation. The law recognized this reality and in section 29 thereof, established the Land Acquisition Compensation Tribunal comprising an advocate as the chairman, two registered valuers, a prominent businessman and a prominent farmer, all appointed by the Minister for Lands. The Tribunal heard appeals from the decision of the Commissioner for Lands by a person interested in land compulsorily acquired. An appeal lied to the High Court from the decision of the Tribunal as of right, and to the Court of Appeal on a question of law only.

Some of the factors that the Tribunal took into account in determining the propriety of the award of compensation by the Commissioner for Lands include the developments made on the land; valuation report relied upon by the Commissioner and the competencies of the valuers; comparable pieces of land relied upon by the Commissioner; and the extent to which the acquisition process affected the developments made on the land including any lost profits.

In the case of Samwel Wainaina Muiruri v Commissioner of Lands (LACT case number 20 of 2009),the Commissioner of Lands, vide Gazette Notices numbers 6034 and 6035 dated 11 July 2008, sought to compulsorily acquire part of Plot L.R. number 209/1534 registered in the name of the applicant, Samuel Wainaina Muiruri. The portion of land that was meant to he acquired measured 0.0716 ha, which the Commissioner of Lands assessed at Kshs 16,525,525.Valuation was undertaken on 14 October 2008 by Mrs. T. W Kimundiu and Mr. B.N. Nzau, holders of Bachelor of Economics degrees in Lands Economics who described the acquired land as measuring 0.016 ha and as a leasehold interest without encumbrances. According to the applicant, the acquired land had been developed and it hosted a big animal feed shop, being Pangani Animal Feeds. Acquisition would therefore lead to demolition of the building and relocation of the same. The applicant further contended that he required a period of 18 months to complete the process of the approval of the building plans and sought compensation for the period. Thirdly, the applicant contended that he had a loan with Standard Chartered Bank and made a monthly repayment of Kshs 810,000 towards the loan repayment and interest. The demolition would affect the repayment of the said loan for 18 months. The applicant therefore sought compensation of KShs 45,532,000.

The Commissioner of Lands valued the acquired land at KShs 9,250,000, which it stated was arrived at after analyzing four comparables. The Commissioner of Lands then applied replacement costs of the acquired developments, costs of alternative accommodation and 15% statutory compensation, thereby arriving at a total compensation of  KShs 16,525,500. According to the Commissioner of Lands, the rates applied by the applicant were not supported by real sales, thus the proposed rates could not therefore be adopted.

The Tribunal held that firstly, because the Commissioner of Lands was guided by four comparable sales done before acquisition date, the values applied by the Commissioner were values of actual property sold around the period of gazettement, thus relevant, unlike the applicant's values that were not based on any actual sale. The location of the applicant's comparables was also different from that of the land in issue. The Tribunal thus found that the valuation of land given by the Commissioner of Lands at KShs 9,250,000 was sufficient valuation for the land. Secondly, on the value of improvement, the Tribunal held that the Commissioner used the applicable rate of construction cost of KShs 1,200 per foot used by the society of valuers, unlike the applicant who did not lay basis for the rate of KShs 40,000 per square metre that he proposed.

The Tribunal therefore confirmed value of KShs 4,500,000 assessed by the Commissioner as the value of improvement of the acquired land. Thirdly, on the claim for loss of profits, the Tribunal found that the authenticity of the accounts relied upon by the applicant was doubtful and that the business of Pangani Animal Feeds needed not to be moved from the acquired land. Thus, the Tribunal held that the applicant failed to lay a basis for this claim. Fourthly, the Tribunal found that the sum 0fKShs 720,000 awarded by the Commissioner of Lands for alternative accommodation for 15 months was sufficient compensation for inconveniences suffered by the applicant and attendant costs of his relocation.

The applicant’s claim for compensation on the basis that he was financing a loan with Standard Chartered Bank by using the acquired land as collateral was found by the Tribunal to be not a proper claim that can be made under the Land Acquisition Act. The Tribunal therefore confirmed the award of the Commissioner of Lands for KShs 16,525,500 and any statutory payments that might be due from the date of the award.

In the case of Josephat  Ndung’u Gachchio v the Commissioner of Lands  (LACT case number 34 of 2009), the Commissioner of Lands, on 11 July 2008, compulsorily acquired L.R. number 24052/ 2 measuring 0.0272 ha, owned by the applicant. The Commissioner of Lands valued the land at KShs 656,880, based on valuation by T.W. Kimondiu and B.M. Nzau Valuers. The land situated along Thika Road, was a leasehold property held for 99 years with effect from 1 November 1998 at an annual rental of Kshs 2,635 and was connected with electricity and water, though it had no central sewerage system. The applicant disputed the assessment of the acquired land by the Commissioner of Lands, and claimed KShs 2,563,220 as the total value of the land, improvements and incurred project costs. The applicant relied on valuation report prepared by M.S. Kibui 8c Associates Valuers.

In its ruling, the Tribunal noted that the acquired portion of the land measured 0.0272 ha whereas the entire land measured over 2km from the main Thika Road and that, unlike the applicant, the Commissioner had used comparable sales to arrive at a compensation of KShs 656,880. On the claim for severance pay, the Tribunal ruled that the acquired portion of the land was too small as to compromise any intended user of the land, thus unsupported. The Tribunal thus confirmed the assessment of compensation by the Commissioner of Lands.

Lastly, in the case of Petty Wanjiku Kigwe v the Commissioner of Lands (LACT number 36 of 2009), the Commissioner of Lands, on July 2008 acquired Plot L.R. number 17881 measuring 0.0274 ha registered in the name of one Paul Gathecha Kigwe. The acquired portion of the land was assessed at KShs 339,250 based on a valuation by B.M. Nzau and T.W. Kimondiu Valuers. The applicant opposed the compensation by the Commissioner of Lands on grounds that he failed to comply with section 9(3)(b) of the Land Acquisition Act; that the award was manifestly low and failed to take into account the real value of the land acquired. The Commissioner of Lands opposed the application on grounds that the comparable sales relied upon by the applicant occurred after the date of gazettement and the comparable land is far removed from the situation of the disputed land. The Tribunal ruled that all the transfers exhibited by the applicant occurred after the acquisition and could thus not assist the Tribunal, while those relied upon by the Commissioner occurred before the commencement of the acquisition process.

The Tribunal thus confirmed the award by the Commissioner of Lands. The power to compulsorily acquire land now vests with the National Land Commission by dint of the provisions of Part VIII of the Land Act. The powers previously exercised by the Minister responsible for Land and the Commissioner for Lands under the Land Acquisition (Repealed) Act are now exercised by the National Land Commission. Until the Cabinet Secretary Land, Housing and Urban Development gazettes new rules to regulate the procedure for acquisition, the previous procedural guidelines exercised under the Land Acquisition (Repealed) Act can help guide the National Land Commission in exercising their power under Part VIII of the Land Act.

CONCLUSION

Disputes relating to the management of land and the environment are adjudicated upon by a number of tribunals, including the National Environment Tribunal, Business Premises Tribunal and Land Acquisition Compensation Tribunal. The National Environment Tribunal hears appeals from decisions of the Director General, NEMA and/ or Committees of NEMA. Most common environmental disputes handled by the Tribunal seek to challenge approvals of EIA project report vis-a-vis the need for an EIA study before undertaking a development with a view to compel the requirement of greater public participation before the development is undertaken.

EIA is a systematic examination conducted to determine whether or not a project or activity will have any adverse effects on the environment. The developer is required to prepare a project report and submit to NEMA for approval which then issues a licence. If a party is aggrieved with the approval or issuance of the licence by NEMA, and files an appeal with the Tribunal, the Tribunal may issue a stop order to stay the development until the appeal is determined. A full EIA study may then be directed by the Tribunal. Business Premises Tribunal adjudicates over disputes relating to controlled tenancies. A controlled tenancy is a tenancy of a shop, hotel or catering establishment that is either not reduced in writing, or if it is in writing, is for a period not exceeding five years, is determinable within five years from commencement thereof, or is specified by the Minister (now Cabinet Secretary) to be a controlled tenancy.

Controlled tenancy is determinable or capable of alteration by issuing at least two months’ notice in a prescribed form. The tenancy notice must specify the grounds upon which the issuing party is seeking termination, alternation or reassessment of a term of the tenancy, and must notify the receiving party to notify the issuing party in writing, within one month of receiving the notice, whether or not he agrees to comply with the notice; there must be a firm and settled intention by the issuing party to undertake the grounds specified in the termination notice. A party receiving the termination notice is entitled to make a reference to the Business Premises Tribunal, before expiry of the notice period, if he wishes to contest the termination.

An appeal lied to the High Court from the Tribunal and such appeal is final. The Land Acquisition and Compensation Tribunal adjudicated over disputes relating to the decision of the Commissioner of Lands in respect of land compulsorily acquired. An appeal lied to the High Court from the decision of the Tribunal as of right, and to the Court of Appeal on a question of law only. The Tribunal took into account the Following factors in determining the propriety of the award of compensation by the Commissioner for Lands, to wit: the developments made on the land; valuation report relied upon by the Commissioner and the competencies of the Valuers; comparable pieces of land relied upon by the Commissioner; and the extent to which the acquisition process has affected the developments made on the land including any lost profits.

 

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