LAW OF PROPERTY IN LAND(Property Law Notes)

CHAPTER ONE

1.0 GENESIS AND EVOLUTION OF THE LAW OF PROPERTY IN LAND

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

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

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

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

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

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

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

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

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

1. What are the foundations of the law of property in land?

2. What are the jurisprudential questions and concepts underlying the law of property in land?

3. What are the rights and obligations arising therefrom?

4. What is the manner of transferring or otherwise dealing/disposing of the said rights?

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

1.1 THE CONCEPT OF PROPERTY

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

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

1.2 THE IDEA OF A RIGHT

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

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

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

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

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

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

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

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

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

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

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

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

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

1.3 DEMYSTIFYING THE CONCEPT OF “OWNERSHIP”

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

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

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

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

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

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

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

1.4 THE MEANING OF PROPERTY.

What can be owned?

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

In this regard, Honore has written;

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

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

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

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

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

1. All Legal rights; “… a man’s property is all that which is his in Law”

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

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

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

4. Corporeal rather than incorporeal property (Dominium Corporis v/s Dominium Juris)

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

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

Both the I.T.P.A and the Interpretation and General Provisions Actdefine IMMOVABLE property to include;

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

How does property arise?  How is it created?

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

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

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

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

1. Under the Common Law of England

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

1. OWNERSHIP (Under English Common Law)

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

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

2. Under the Indigenous Law

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

In this regard, Marx Cluckman writes;

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

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

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

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

1. an incident of membership of society

2. specific to a function

3. tied to the performance of reciprocal obligations owed to others and control of the same and which is;

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

2. Is solely for the purpose of guaranteeing the access of rights of society members and therefore; 

3. Entails a power of distribution and redistribution as society adjusts to population pressure and constant claims on scarce resources.

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

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

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

The same prolific author has also truthfully noted;

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

CHAPTER TWO

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

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

2.1  THE COLONIAL FACTOR IN THE EVOLUTION OF KENYAN LAW OF 

PROPERTY IN LAND

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

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

2.2 COLONISATION; ORIGINS THEREOF

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

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

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

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

1. obtain formal jurisdiction

2. discover agents of/for economic development of the colony.

1. Assumption of Jurisdiction

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

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

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

• Conquest

• Agreement

• Treaty

• Sale

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

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

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

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

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

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

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

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

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

2. Acquisition of Land for Private Use

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

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

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

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

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

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

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

2.3 THE BASIS OF OUR CURRENT LAW OF PROPERTY IN LAND

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

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

1. The constitution of Kenya

2. Legislation which includes;

1. Acts of the Kenyan Parliament

2. Specific Acts of the Parliament of the United Kingdom cited in the schedule to the Judicature Act and the Law of Contract Act.

4. English statues of General Application in force in England as at 12th August 1897

3. Subsidiary legislation

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

5. African customary law in civil cases in which one or more of the parties are subject to it or affected by it, so far as it is applicable and is not repugnant to justice and morality or inconsistent with any written law.

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

1. The constitution of Kenya; particularly Article 40, which enshrines the right to property.

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

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

4. Subsidiary legislation 

5. Customary Law (to an extent)

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

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

CHAPTER THREE

3.0 LAND AS PROPERTY AND THE LEGAL CONCEPT OF LAND

3.1 LAND AS PROPERTY

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

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

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

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

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

1. Realty i.e. Hereditaments such as freeholds and mortgages.

            

2. Chattels Real i.e. leaseholds

3. Pure personalty – simply movable property

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

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

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

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

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

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

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

3.2 THE LEGAL CONCEPT OF LAND

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

3.2.2. THE CUJUS MAXIM

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

In this connection, the rule is that:-

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

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

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

Its essential elements may be set out as follows:

Solum – soil

Coelum – atmosphere

Inferos – geosphere

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

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

3.2.3 THE TRUNCATION OF THE CUJUS MAXIM

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

3.2.4 FIXTURES

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

“Quicquid plantatur solo, solo cedit”

Translated it read;

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

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

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

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

1. the nature of the fixture

2. the degree of annexation to the soil (permanence)

3. The object/purpose of annexation.

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

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

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

THE EXCEPTIONS

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

2. Where they were ornamental, they could similarly be removed

3. Domestic fixtures and agricultural fixtures could similarly be removed.

In Regard of the Atmosphere

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

In Regard of the Geosphere

Limitations in respect of this zone pertained to:

1. Mineral

2. Water

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

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

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

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

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

3.2.5. JUDICIAL APPLICATION OF THE CUJUS MAXIM

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

In respect of limitations imposed on the maxim by English common law, the cases of Smith V City Petroleum Co and Leigh V Taylor are quite illustrative.  In the former, a tenant fixed petrol pumps and tanks onto the grounds.  Subsequently, the tenancy came to an end.  The tenant failed to remove them.  The question was whether property in them had passed to the landlord.  Since it had been conceded that they were trade fixtures, it was held that they could be removed within a reasonable time span and that property in them had not passed to the Landlord.

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

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

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

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

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

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

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

Held;

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

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

Related Issues

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

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

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

3.2.5 THE KENYAN EXPERIENCE

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

3.2.6. STATUTORY LIMITATIONS ON THE CUJUS MAXIM

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

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

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

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

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

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

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

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

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

JUDICIAL APPLICATION

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

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

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

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

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

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

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

 

WHAT IS PROPERTY IN LAND

A         THE NOTION OF PROPERTY

To understand the law of property in land, it is important to identify the properties or characteristics of land and see how general notions of property apply to it. One concept, about property is that when you own it you have a right to use it, to destroy it and to exploit its benefits. That you would have the right to use, make abuse of and enjoy fruits of it. It is arguable that we cannot have a right to destroy it.

Land is described as immovable property. Because land is immovable interests in land have also immovable characteristics. In the history of mankind there have been attempts to distinguish it from other properties. Land has under common law been referred to as real property. Significance as natural resources there have developed different notions concerning it. Land law in total reflects a socio economic and political system of a given nation or community. It follow, therefore, that a study of land law is considered also as a major study of a political system of a given nation. However, it can be said that this depends on the objective of a given economic system. To make use of it and to exploit its benefits you must have competition. Argument for the property is that one is entitled to the use of one’s labour i.e. that if one plants a tree, one should have exclusive right to benefit from its profit or harvest. Moreover property can be transferred from individual ownership to communal ownership, for example land may belong to the community and not the individual. An individual had a right to use land, but he had no exclusive right to own it.

Ø  English Law divided property into real property and personal property. Real property referred land. Common Law lawyers using this concept defined land as real property. Property which could be recovered in a real action was itself called real property. As a result land law consisted, solely of interest in land. His possession of right of possession was inferior. The tenant for years was said to be possessed but not seized and if disposed he could originally bring only a personal action for the recovery damages. The concept of real and personal property has no application in Kenya but forms useful background given that part of our law is received law. The layman’s view of land includes the surface of the earth together with all the subjacent things of a physical nature such as buildings, trees and minerals.

Ø  Registered Land Act (Cap 300) defines land “includes land covered with water, all things growing on land and buildings and other things permanently affixed to land.” It also states the interest includes absolute ownership.

Ø  The ITPA divides into “immovable” and “movable” property. Section 3 of ITPA simply states that immovable property does not include standing timber, growing crops or grass. Property under section8, of the ITPA as things attached to the earth. Defines immovable property as” including land and things attached to the earth or permanently fastened to anything attached to the earth.”

 

ORIGIN OF TITLE ESTATE AND INTEREST IN LAND

Land Law in Kenya is not a direct development from customary law to statute law. It is intertwined with European settlement in Kenya from the end of 19 Century. It is also connected with the Arab settlement at the coast from early historical times. In the early part of the colonial period, land law was designed to serve the interests of the white settlers. A simple legislation could under such circumstances suffice efforts to have a comprehensive code of land law which is easily understood lead to the objective in enacting Registration of Titles Act Chapter 281 Laws of Kenya and later Registered Land Act Chapter 300 Laws of Kenya customary law and common Law is applicable as long as it is not inconsistent with other written law. Application of customary law in land matters has been incorporated into various statutes. There has never been a comprehensive land policy in Kenya. This has been in the pipeline since (independence).

The government of Kenya has since independence tried to come up with one law to govern the land sector but this has not been successful. The Registered Land Act Cap 300 being one such attempt. This has led to even more laws as there have been no effective ways to phase out the previous statutes. This has led to multiple laws that we currently have.

 

Origin

 

Historically the Sultan of Zanzibar governed the costal area and later leased it to the Colonial Government, creating statute that dealt with this area.

The European colonial powers on occupying East Africa secluded certain areas of land and vested it in the government. Here they issued out documents, often leasehold title and in some cases freehold. The secluded areas during the colonial time were reserved for Europeans and referred to as white highlands.

The other secluded areas were the native reserves, where the councils were to hold the land in trust for the residents being governed by the constitution and Trust Land Act Cap (288).

The Geographical interest in land being brought about by the economical growth and well as the economical importance placed on an area of land which lead to the colonial power creation of ownership.

 

THE STATUTES THAT RELATE TO THE LAW OF PROPERTY IN LAND CAN BE BROKEN AS FOLLOWS:-

 

Ø  There are two regimes of substantive land law, three regimes of conveyancing and five regimes of registration. This has now changed to one regimes under Land Registration Act of 2012.The two regimes of substantive land law are under the Indian Transfer of Property Act 1882 as amended by

1959 Amendment Act and under the Registered Land Act. The three regimes of conveyancing are those applicable to land registered under Government Lands Act Chapter 280, Part X Laws of Kenya and Land Titles Act Chapter 282, Part III Laws of Kenya as one, Registration of Titles Act as two and Registered Land Act as three.

 The five registration regimes are those under:

                                i.            The government Land Act (280)

                              ii.            The Registration of Titles Act (281)

                            iii.            The Land Titles Act (282)

                            iv.            The Registered land  Act (300)

                              v.            The Registration of Documents Act (285)

Under the Registration of Documents Act, documents completely unrelated to land are also registered. The other four registration systems can be looked at in turn as only two systems of ownership the Deeds system and the Titles system.

Kenya has been divided into three geographical sections. These are the schedule areas, the coast and the trust lands. Schedule areas land was vested in the Government. Up to independence land in scheduled areas was for the most part reserved by the colonial Government to Europeans only and hence the common term. “The white Highlands” the coast was formerly the protectorate of Kenya and before independence it was leased by the British Government from the Sultan of Zanzibar. The trust lands were, formerly referred to as natives’ reserves, then held by a British Government Trust Board, but today they are held by the appropriate county councils under the Trust Land Act Chapter 288 Laws of Kenya. They are held in trust for the benefit of the people inhabiting them.

In Kenya it has been stated there are three conveyancing regimes. The deeds system applicable to Government Lands Act and Land Titles Act, the regime applicable to Registration of Titles Act and the regime applicable to Registered Land Act substantively being under the Title system.  The conveyancing under Land Titles Act and Government Lands Act is done in accordance with Real Property Act, 1945 of England. Accordance with the said Act, conveyancing was by deeds characterized with thorough investigation of title as to its appropriateness and validity. By this system property passes by the delivery of the deed and the validity of the document is subject to the medieval magic of a seal. Deeds still require registration under deed register but interest is effected by the delivery of the deed. In the Titles registration system the transfers is effectual upon registration of the interest evident under Registered Land Act and Registration of Titles Act, their interim mechanisms before registration consists of use of statutory forms but that is the end of their common peculiarity.

 

 

LAND TENURE IN KENYA

 

Land Tenure refers to the manner in which individuals or groups of people within community or society enjoy rights of access to land at a broader level, this would include the conditions under which such land is enjoyed. On a broader level this would also include the conditions under which such land is held or access to it, enjoyed.  For instance, land may be held from some superior authority. Depending on the setting, land may be held from some superior authority, such as the Crown, as is the case under the English system, or County Councils and or the Government of Kenya. Or in some unspecific Traditional setting, a political authority within the tribe, may be from elders within the tribe or clan or in some cases through family arrangement, which authorizes that particular question.

Communal Tenure/Public Tenure
In most societies in pre-colonial Kenya the commonest mode of land holding was indeed thro non specific authority within the clan or lineage or families and towards that end.  In communal tenure, members of the group are deemed to have equal rights of access to the land that is considered to belong to that community. Today this mode of land holding is in most cases referred to as Public Land.

Family Tenure
The family tenure which serves as the basis of granting access to land, so that qualification as a family member will determine whether or not such rights of access would be given to an individual. We may consider such holdings under feudal tenure which is essentially a political arrangement of sorts whereby some political authority was deemed to control land in total discretion determining who should be permitted to use what portions of land and under what conditions and in exchange for what services i.e  a certain percentage of all produce harvested being devoted towards payment for being allowed to use certain portions of land.

Individual Tenure
A person here would hold land on more or less a permanent basis free from any adverse claims from others and absolutely answerable to no one in the enjoyment of such property. This mode of tenure being more of an introduction mode by the colonial government to Kenya.

 

 

 

 

 

 

 

 

 

 

DEVELOPMENT AND ADMINISTRATION OF PROPERTY RIGHTS IN KENYA

 

 Land as property land remains the major means of production as compared to the other factors of production and in Kenya’s situation land assumes a greater significance because we all know that agriculture is the main stay of our economy even with the emphasis placed on the drive towards industrialization.

Consequently all transactions that take place in relation to land are bound to be more complex than if you are dealing with other forms of property and hence the need to formulate an appropriate framework within which the obligations that arise are dealt with. The other characteristic is the scarcity of land, this is purely a function of the fact of our increasing population and the pressures that are exerted. Land cannot just be treated like other species of property that one is conversant with.  It is the case that one cannot increase supply of land from what one has, it does not expand and so its availability in terms of supply remains virtually constant and hence the need for regulation.

Land bears what other forms of characters that other property cannot match, that is its capacity to accommodate various interests either simultaneously or and this is in reference to its ability at any given time or within a given progression take care of various interest that may be conferred to different people without there being any conflict whatsoever. For example where there is a grant of leasehold interest, a right goes out or certain benefits are conferred. It is of that category that can entertain simultaneous or successive interests. The fact that it is indestructible makes it unique in a sense, although land is amenable to waste; it is virtually incapable of being destroyed. There is the aspect relating to its ability to be conceptualized both in vertical and horizontal terms which means that contrary to traditional belief, it is possible to have within the same physical solum property that is suspended on top of 3rd or 2nd floor owned by different people. It is now possible to have several titles depending on how many flats are there in one piece of land and that makes it unique. The issue of mutual rights and interests and obligations has to be dealt with. There are certain things that have to be necessarily shared so there are rules that will regulate those arrangements. Facilities, such as parking, pools etc.

Registration of land offers the surest route towards the commoditization of land and availing it easily and safely in the market place in the same way as one would expect in the other types of goods. What registration does is that it records interest in land so as to facilitate their ascertainment. As a process

 

 

 

 

registration can be understood as involving recording of interests in land so as to facilitate and it makes effective any transactions in relation to such land by availing all material details on such property which can be easily accessed through carrying out of a search of the register. Once duly effected registration has the effect of passing an interest in land in favour of the person so registered. Of course this then effectively makes registration as a process to serve two broad functions,

1.      it manifests  land as a commodity;

2.      Creates a mechanism for providing  information or a data bank as to the exact status of any registered property at any given time, this presupposes that the register will be updated at all time to reflect this position.

 

 The benefit of registration is that the purchaser can investigate the registered title to ensure that there are no adverse claims to such property which precede the transaction, which is the decision to buy the property which accordingly means that the purchaser bears full responsibility for whatever is the outcome. The duty of caring that any claims with regards to the same property do not spring after he has acquired the property.

 

REGISTRATION SYSTEMS

There is in place two types of registration systems that fall under the four registration regimes/Acts:
Registration of Deeds
Registration of Title
The registration of deed

This system entails maintenance of a public register in which documents affecting interests in a particular registered land are copied. Such a deed is merely evidentially of the recorded transaction and is by no means proof of title. The most that can be made out of a deed is to invoke the records as prima facie proof of the fact that the transaction in question did occur. It cannot and will not suffice to prove the validity or legitimacy of such transactions. As a matter of requirement the deed does not even have to be consistent with any registered transaction which may have previously taken place in connection with the property in question. Consequently the deeds system cannot confer any secure title

to land in favour of the person in relation to whom the registration of the deed has been executed. Accordingly the reliance on the deed system is as risky as reliance on the unregistered system as it entails a historical deduction of the title in respect of the property in question if one is to be sure that the title is good and well rooted. There are no government guarantees in regard to deeds and so there is no guarantee as to the accuracy of entries and no indemnity would be available to take care of any losses arising from omissions that may be disclosed in the register.

 

Registration of Title
This refers to the maintenance by the state of an authoritative record of all rights in relation to particular parcels of land such particular parcels as may from time to time be vested on specific individuals or legal entities and subject to such limitations as may be disclosed in the register itself save for such interests as may be of overriding nature (section 30 of the RLA) so in a sense registration of title provides that convenience and simplicity that anybody interested in a given property would want the simplicity and convenience based on principles that are by far quite different from those applicable under the unregistered system. The case for registration of title is made out by the fact that it offers cheap and expeditious secure methods in property dealings which are in sharp contrast to the position in the unregistered system which was thought to be costly, disorganized insecure and complicated. Its principle objective is to replace the traditional and registered title method with a single established register which is state maintained and therefore conclusive and authoritative as to the details or particulars set out therein. Since it is state maintained and operated, the title registration system enjoys all the advantages that are unavailable under the registration of the deed system which is not very different from the unregistered system. Unlike the registration of the deed system the registration of title system has the capability of investing secure titles in all persons in whose favour such registration may be effected. It is further regarded as final authority on the correct position regarding any registered land. It is also cheap and expeditious in terms of facilitating various transactions regarding registered land. State indemnity is available for any losses that may be incurred and so it makes conveyancing very simple.

The register is a very important document as it is the sole authoritative record wherein lies title to all registered plans. The register is kept at the lands office, the central registry in the lands office. The register itself refers therefore refers to the official record containing details of ones estates, particulars of the property and the interests that affect the property so it would identify the nature of the Estate whether leasehold property or freehold or an absolute estate and such records are described by reference to an official map plan that is maintained at the registry. In another sense, the register can also be used in reference to the entire index of many individual registers that comprise the sum total of all titles relating to registered land in the country. In each case the register has divisions or sections into which it is

divided. There are 3 main sections so that each register is divided into 3 parts, property section, proprietorship section and finally the encumbrances section.

The property section contains a section of the registered property and identifies such property by reference to a map plan included in this section are details of the date of first registration of the land. It may also contain notes relating to any exemptions or other adverse interests to which the property is

 

 

 

subject. In the case of registered lease or land there would also be particulars of the lease including the title number and a statement to any prohibitions against alienation of such property without authorisation.

The proprietorship section states the nature of the registered title, name and address and other description of the registered proprietor, any restraint if at all to which is powers of disposition are subject.

The encumbrance’s sections gives particulars of subsisting burdens to which the property is subject and any restrictions that are endorsed have the effect of preventing such dealings in the property as maybe inconsistent with the restrictions imposed.

Under the Title system a clear Administration process was put in place

Administration of registration system are the most crucial department involved here in the department of lands but under the ministry there are many other departments including department of survey, physical planning and the land adjudication and settlement department. The department of land is by far the most important in the administrative arrangements so it deserves considerations. It falls under the Ministry of Lands and Settlement and it is charged with the responsibilities of carrying out the following
Alienation of all government and trust lands as provided for under the relevant laws Cap 280 and the Trust Lands Act. It also gives approval of development plans in respect of all categories of land;
it is in charge of the preparation, registration and issuance of titles for all categories of land whether under the RLA or the Government lands Act or RTA or LTA .It is in charge of considering and improving buildings plans in respect of government lease of land consideration and approval of extension of use in respect of all categories of land including application for change of user as per the requirements of the land planning act and the Town Planning Act. It is responsible for establishing and running of various Land Control Boards across the country; Responsible for setting up of trust lands this was at the time after independence

Extension of government leases
carrying out valuation of both government and trust lands to facilitate alienation of such property
It also carries out valuation for purpose of determining stamp duties in respect of transfers for all categories of land and where acquisition powers have been invoked.
Office of the public trusteeship and running of various affairs that fall with the office in terms of distributing the estate of a deceased person.
Rating roles for various local authorities on the basis of which rates are assessed.

 

 

ADVANTAGES OF A REGISTRATION SYSTEM

The registered land system give title assurance so that in terms in administering property rights we have that title assurance that

1.       Bestows confidence on any person dealing with the property in the sense that the owner will have been portrayed.

2.      As having a good title to pass with regard to the property.

3.      Such assurance is achieved through the process of maintenance of organized or systematic state recording and issuance of title document system to each successive owner of the property in question, which then is reflected.

4.      Registered in a chronological order, it is easy to learn the history of the property if one wishes. It also establishes a system of public data bank of some sort which contains records of all property titles such data can be accessed easily and is available to almost the entire public through conducting a search so that any interested persons can easily take advantage of that.

5.      The other advantage is that it makes available a property map plan of scientific accuracy which is based on survey work.

6.      Proceeds the process of adjudication and registration. Such a map is revised and updated regularly so as to offer a clear picture in terms of identifying the property so one cannot be easily fooled by fraudsters. In certain cases this system also serves to preserve in a secure place important documents of titles relating to various properties which would otherwise be completely lost or unsafe if left in private hands.

7.      It has also been suggested that the system serves as a constructive public notice i.e. the records that the system serve as a notice to all and sundry as to the true status of the registered property. By reason of that fact, it has been suggested further.

8.      It protects potential purchasers for value against other unregistered adverse interests which may have been acquired prior to the purchasing of the property in question since such unregistered interested are not reflected anywhere in the register and are therefore deemed to be unknown. By protecting the purchasers, they are effectively cushioned against uncertainties that characterize the unrecorded system.

9.      Again the fact that it leads to the creation of a register means that all interests that affect that title be they mortgages, charges or whatever burdens that the title is subject to will easily be disclosed so that one makes an informed choice so that short of overriding interests that are never reflected on the register, everything else that affects that title would be evident and made available to the interested parties.

 

 

 

10.  The process also leads to the proprietor of the particular property an official title document. That official document bears details of the entries to be found in the register but most importantly it is a document that can be used by the proprietor in a number of transactions because it is valid and legitimate and the business practices whether it is seeking financial or offering security in other aspects, it makes it possible for the owner to rely on such official documentation.
The intention being to create a public record means that there is a mechanism through which the public can access. So a search can be conducted at the relevant registry to enable a person acquaint themselves with any facts regarding the property. There are no guarantees as it were so the search is usually self conducted. The official search is the one conducted by the officials of the registry and in terms of accuracy, the registry is vouching that whatever information you have been supplied with as of that time reflect accurately the true position regarding the status of the property, it is more expensive in terms of fees required but much safer.

11.  A registered system would to a large extent expose any defects which may have occurred in terms of various dealings with regard to land transactions, as the registry will not accept faulty documents until and unless such documents conform with the necessary statutory requirements. It streamlines the whole exercise.

12.  Because of the perceived advantages, it has been argued that it is perceived to reduce litigation in relation to land simply because it filters issues that make litigations arise in the first place. It has also been suggested that since this is a state maintained and run system.

13.   What is created is some insurance scheme to indemnify those incurring any losses by reason of mistakes or omissions in the register. The state insurance scheme will meet the costs arising to any party that may suffer such damage by reason of an error in the register.

 

PRINCIPLES OF REGISTRATION

 

Registration of the process through which interests in land are recorded so as to facilitate the ascertainment and it makes effective any intended dealings or transactions in relation to property and once duly carried out registration has the effect of passing an interest in land in favour of the person so registered. Because of those virtues, registration has been identified with two main functions that of serving as a documentary manifestation of land as a commodity making it a commodity to be dealt with in the market while at the same it provides as a mechanism for providing vital information regarding the quantum of rights held by individuals with regard to a given property. It vests to you all the details one may need before they undertake any dealings on a property and facilitates any transfer thereof.

 

A system like this needs to be based on some principles and by far the most important source from which these principles have been drawn is the so called Torrens System named after Sir Richard Torrens who formulated the same in 1958 in South Australia from where it later spread to other parts of the World. Most jurisdictions embrace this system because of its demonstrable superiority over other systems. It is significant because it provides a new and improved information system on property in the form of a register and the register contains all the material facts about a particular property. Other than that, in such a register would be entered all such information so that they can be accessed and a

document of title would be issued to the owner upon such property changing hands through subsequent transactions. The document of title in respect of property would be surrendered to the new owner and the information would be effected in the proper register so that the necessary changes can reflect all the material details and indicate the true status as regards among other things ownership of the property or any other interests which affect such ownership. In effect it leads to a creation of a public record on property full of information of the kind that would be of interest to anybody wishing to have any dealings in such property. By creating a public record system there is the element of security of such a title or title assurance which does offer a measure of protection to the person the bona fide purchaser without notice who may wish to acquire such a property in future. In contrast to an unregistered land system, there is no risks or uncertainties whatsoever as to the ownership including whether there are

claims acquired, whether it has been charged all these things would be disclosed in the register. There are guarantees that come with the registration since it is government maintained.

THERE ARE PRINCIPLES RELATING TO THE TORRENS SYSTEM

A.    The mirror principle – this relates to the accuracy or certainty or conclusiveness that entries in the register in as far as the true status of the title are concerned. We take whatever is found in the register as accurate and conclusive on what it purports to inform us about; we expect to get all material details including true position of ownership, the interests or other rights to which such ownership could be subject. The history of how this property has changed hands if at all the first time and at any time changing hands might have taken place. Mirror principle stands for transparency in shedding light about what the position is and once we have accepted the principle there is the element of confidence and assurance that we are not having any hidden factors or interests that may be adverse to the interests of the parties concerned.

 

B.     Insurance Principle – this relates to the fact that since the state has undertaken to establish and    maintain this sort of system, the state by extension guarantees that there would be indemnity offered to compensate anyone who may suffer loss as a result of mistakes in the register or merely by reason of the fact of operating that system itself that in event of injury or damage

 

 

 

arising out of such circumstance, there is a state run system that will compensate any person who suffers loss to the extent of such loss.

 

C.     Indefeasibility Principle - This is to the effect that once registered as the owner of an interest and such interest duly disclosed or entered in the register the rights acquired cannot be defeated by any adverse claims which are not disclosed in the register. The register is a public document and open for inspection by the public so that the presumptive position is that everyone will be deemed to know. Discoveries can be made of material details which would affect a person in one way or another and it is good public policy that the openness allows you to know any adverse interest before one goes very far with the transaction one can seek explanations. Once we’ve got all these guarantees, we shouldn’t allow them to be defeated by any hidden claims and the registers should be open for anyone to see. The idea of public notice provided for by keeping a policy of an open register should work towards strengthening the rights of an individual with an interest.

 

D.    Curtain Principle – this relates to the requirement that the register should disclose precisely the nature of the interests and who the owners are. There should be no position of where one holds interests in a hidden way and all trusts should not be kept in the register and where for instance land is registered on a trust it would be a requirement that such land should not be held blindly under such a trust and must be registered in the names of specific persons and subject to appropriate restrictions the names of the owners being registered.

These were drawn from the system that Torrens came up with.

 

THE GOALS OF REGISTRATION

In a way, these goals do not depart fundamentally from the issues that we have been considering like the issues of security of tenure. In relation to the RLA in this regard or provisions of section 27, 28, 29 and 30 they are instructive while in RTA 23 and 24 are relevant and this is where the safeguards of a registered proprietor and any person dealing with property are made. The safeguards are against the eventuality of one losing such an interest. In any case, there is a guarantee that the government gives as to the reliability on what is disclosed in the register and there is a title assurance which are central to the security of tenure given that dealings in such property will not predispose an individual to any damage. There is bound to be confidence in commercial business circles with all those participating in the process being unbothered with the possibilities of incurring losses. Section 24 of RTA provides that any person deprived of land or estate through fraud or bring such land by registration or in consequence of

 

any error is covered and so the issue of losing that title is taken care of by such provisions. No claims that are inconsistent with a registered title would be entertained so such adverse interests cannot be

treated favorably as against that of the registered proprietor and the case of Obiero v. Opiyo where the court observes that a person who acquires a first registration title acquires an indefeasible title that is better as against the whole world.

Before one is registered as a proprietor of a given property, there are preliminary stages that have to be dealt with and the most important stage is that of adjudicating the claims and whoever claims to be the owner or entitled to a particular property has to prove the claim and have to face challenges from interested parties who are allowed to make representations and those adjudications are conducted with the help of locals to ensure that only true claimants can acquire the title. Whoever succeeds on gaining first registration will have shown the most effective entitlement to the title. If it works out that way, it should follow that there would be no disputes that one would not wish go to court to litigate such land. The bulk of the cases are in land related cases and therefore the theory has not been proved right. There is a lot of litigation revolving around land which makes one wonder if we have fared any better by having first registration. The central region happens to have been the hot bed of a number of things related to land such as the Mau Mau movement who might have not been there to stake their claims to land and therefore land in the central region is a touchy issue. The understanding was that if and when the registration was done, people would be given opportunities to articulate their claims to avoid disputes.

It has also been suggested that the other goal is to avoid the old practice of land fragmentation and this was in fact one of the other objectives that registration sought to achieve through consolidating smaller holdings into bigger ones. A number of social factors explain why the land units were fragmented as they believe that every son must get a share of family land no matter how small the piece of land is and one ended up with 10 small pieces of land in different place and this was identified as a militating factor against productivity. Eventually they decided consolidation would make one end up with one larger unit which could be more productive due to economies of scale. The provisions that are found in the RLA prohibit the registration of more than five people and only allows 5 people or less to be registered in one parcel of land.

It has also been suggested that another goal is to facilitate the tax administration or it is historically the case that land or levies imposed from land have since time immemorial served as vital sources of revenue i.e. the feudal systems in England and collective system in Russia have served as main sources of revenue to the government. In our situations we have Land Rates and Land Rent, fees to be paid for a

 

 

 

number of reasons, i.e. consent from land boards there are fees to be paid for transaction to proceed, under the Land Planning Act there is a planning fee, LGA there are rates that the local government

Levies on land, Stamp duty under stamp duty act and fees payable under the RLA. Registration facilitates the question of administering taxes due by identifying the way to levy taxes. One has to fulfil a number of requirements which relate to tax administration based on levies on land before any transaction can take place.

The other goal is to facilitate workable loans systems by having a credible registration system in place where one creates ample securities and adequate checks and guarantees based on land as a commodity in the market place. One can surrender their title documents as security in return for financial accommodation through being afforded credit facilities. This is a healthy phenomenon if it works along the lines that it should, that it is it is presupposed that one has a development plan and can take advantage of finances available which one would not have access to in the absence of title. It is possible to benefit improve one’s property and pay back the financier. The financier is the one who gambles by

giving the credit in hope that one is going to make good or have the ability to pay. In the event that one defaults, then the property is liquidated to recoup whatever is charged. There is a statutory power of sale that vests on the financier if one does not make good to repay.

The other Goal which registration seeks to attain relates to limiting or eliminating all together prospects of litigation arising from rival disputes by different claimants in respect of land; so reduction of unnecessary litigation is one of the goals set to be achieved. Land is a very thorny issue especially in our society and most of the disputes that we have, have the potential to last for years on end. The exercises that precede registration such as the preliminary process of adjudicating claims and ascertaining rights and interests is conducted, representations are allowed from various quarters and at the end of that process the registration results in favour of the successful claimant who will have proved ownership of that land including the extent of the land in question or the size of the holding which will have been verified by those best placed to undertake that process and in the end it is expected that no further disputes will follow.

This is not always the case, the presence of this preliminary exercise has not stopped people from litigating in court. In any case what would happen in the absence of such a system is probably having too many cases than we have experienced and looked at either way there is a measure of success to be attributed insofar as this particular goal is concerned.

 

 

Registration seeks to avoid the possibility of fragmentation of land and this is an inbuilt mechanism that is part and parcel of the entire registration exercise. One of the problems that was identified to exist

within indigenous land holding was one that was primarily brought by cultural practices that demanded that some things like sharing land to all those thought to be entitled was applied. Wherever communal land was found each and every individual that qualified to own a piece would get a piece and the situation arising was one where a particular person would end up with many small pieces cropping up all over the place and this was not economical. The productivity or output from working such holdings was not making any sense. With the advent of the Registration process this particular element would be cured once and for all by comparing an amalgamation of holdings to a number of forms. Those who owned land could be forced to swap and in the end have the pieces combined in one area to make up a bigger unit so as to deal with the problem of fragmentation. Consolidation of units would be encouraged and the result would be that land fragmentation would be minimized or eliminated altogether.

The goal of registration has been identified to be that of facilitating the issue of tax administration. This of course is historical land has from time immemorial offered a basis for levying various forms of revenue. And that is the practice that has been pursued almost the world over. Feudal England knew of that practice and the serf system of Russia, closer home the Kingdoms to be found within present day

Uganda had traits of this element of land serving as the basis of raising revenue. Modern practice thrives on this albeit in a more refined form and land rates and land rents are cases in point, charging of stamp

duties in the event that property is changing hands, transfer fees and other levies are all forms of land based taxes and the best way of administering such taxes is offered is used which identified who should shoulder land based taxes. Levies levied by the Central government are other forms of land tax.

The other goal of registration is that of facilitating the loan problem between the land owners and financial institutions that extend credit for development and these are achieved basically by way of enabling property owners to use their title documents as security and to guarantee credit facilities that may be extended to land owners. The property may be developed with the help of credit. The liabilities and obligations of the parties are clearly spelt out in charges and mortgages and the most important element to the financiers is the ability to realize their security by way of exercising their statutory power of sale in the event that property owners default in their obligations. The same can be said of the property owners who are entitled to a discharge of their property from the burden once they have completed their loan repayment obligations.

 

 

 

The other goal of registration is the making of the entire conveyancing process easy and more effective and this arises as a result of the keeping of the records of land through the register which is updated regularly from time to time to reflect the true position. The noting in the register of any interest that may be adverse to those of the purchasers or any other party interested in dealing in the property with the owners. The comprehensive land information system that results through the registration process greatly aids in this exercise because parties are in a position to know what the status of a property is or material details can be sought through conducting of a search and so the common problem encountered of having to search through your own effort whatever adverse claims are raised against you does not arise as it is all laid out there for all and sundry to inspect. The introductory of statutory forms which introduce certain categories of dealing in land through which mechanisms the process of mechanism is greatly improved and made a lot cheaper, faster and less complicated.

 

THE DIFFFERENT REGISTRATIVE REGIMES

In this country, one can talk of at least five different statutory registration regimes which operate side by side for good measure you can throw in a sixth one which is rather fringe as it depends on one of the other five.
THE REGISTRATION OF DOCUMENTS ACT

This particular piece of registration was enacted in 1901 although its history dates way back to 1896 when the colonial administration then in place felt the need for a simple registration system to be put in place for this country. Registration of documents systems was recommended in Kenya based on experiences that the British had had with it in Zanzibar. What the system creates is a simple registration of deeds system which are reflected in the register of documents so created. Under the system, any document can in fact be registered but especially those relating to transactions in land such as government grants of land but otherwise there is no prohibition against other documents not touching on land not being registered under it. The Act provides for both an optional and obligatory registration regime. For instance under Section 4 thereof there is a requirement that all documents conferring or purporting to confer, declare, limit or extinguish any right, title or interest in land must be registered. Such registration must occur within one month after execution failing which the same cannot be called in evidence or adduced in court without first seeking and obtaining a leave of court to do so. Similarly it is a requirement under the Act that documents of a testamentary nature must also be registered under the Act. Optional registration is addressed under Section 5, which provides for a non-compulsory registration so that it remains to be done at the instance of the person seeking to register such documents. The registrar is actually granted discretion in whether or not to accept any such document

 

 

which though not compulsory or registerable may be presented to him for purposes of registration. All that the registrar will have to do will be to set out his reasons in writing and furnish the presenter with

the same. Examples of documents whose registration are not compulsory but which may be registered at the insistence of the owner include Wills, Power of Attorney, Building Plans and in exercise of this discretion under the Act the registrar of documents will not accept any documents for registration if the document in question is not proper or where the requisite registration fee or stamp duty where applicable have not been paid. The most significant feature of this registration feature is the fact that the records kept there under

 serve merely to show that the transaction in question took place but it does not say anything about the validity or legitimacy of the transaction itself.

LAND TITLES ACT

The background to this particular registration regime lies in the doubts and the uncertainties that shrouded the question of individual property ownership within the Coastal Region so individual titles to land at the coast was in effect what led to its enactment. Under purely administrative arrangements between the Sultanate of Zanzibar and the colonial authorities, IBEA part of the sultans dominion was

ceded to the British under a concession agreement and this was the so called 10 mile coastal strip. The terms of that arrangement bound the British to administer the area but subject to the rights of the inhabitants which included property rights such as the inhabitants may be having. The coastal region was settled by those inhabitants mixture of Arabs and Africans much earlier than the coming of the British so their property preceded the advent of imperialism. The registration regime created under this act was meant to give recognition to those long established claims of ownership and adjudicate them so that claimants would get recognition under the Act. Before this arrangement was put in place there had been a lot of difficulties experienced by property owners and uncertainties about these titles and they worked out adversely in terms of investments it hindered investments and in terms of development it hindered development, as people could not deal with their properties in the market. This is what made it necessary for the Act to be introduced in 1908. It was introduced with a view to creating a registration system that would be applicable only to the coastal region and this was particular more so given that the hinterland was adequately catered for by the series of the Crown Land Ordinances beginning with the one of 1902. These ordinances were meant to facilitate white settlement within the interior and did not do much for landowners at the coast. The system of registration under this Act was borrowed from the 1907 Act NO. 3 of Ceylon present-day Sri Lanka where it had proved effective. It provided for a registration system in favour of individual title claimants within the coastal region provided that they

 

 

 

could prove their claims to the properties they owned and so an adjudication process became necessary and one was created and a compulsory registration system was put in place. Property owners were

obligated to present their claims and so they were supposed to lodge their claims to the land registration court that was created under the Act. This court was presided over by a recorder of titles and a deputy who was expected to deal with such claims as may be lodged. Claimants were required to prove furnish evidence of ownership upon successfully proving such claims they were issued with various documents of title depending on the nature of their ownership or certificates of ownership were issued in respect of freehold property so any successful claimant who could prove the nature of their holding would obtain a certificate of ownership or certificate of mortgages would be issued in respect of mortgage of immoveable property whereas a certificate of interest would issue to those who could demonstrate the existence of other rights of whatever kind in the land subject matter. What it set in motion was a process

of not conferring as it were any rights or interests but merely ascertaining and endorsing the same through extending recognition to such rights through of issuance of various documents of title. Registration of such interest in the register created under the Act would in effect bring to an end any rival claims that could evolve over such land. Title documents would issue with a short description of a document proving such ownership being noted in the register thereafter all subsequent documents or transactions relating to the same land would consecutively be entered in the register in the order in which they were presented and the effect of creating the register with all the entries was that it would be

conclusive as to the question of ownership so that a certificate of title would make the owner of the holder thereof have a title that was good against the whole world. Similarly certificate of ownership would make the holder thereof as the undisputed owner of all the property, trees buildings standing on the land as at the date of that certificate unless or a memorandum noting or having entries to the contrary was produced to contradict that position. Once the adjudication process was complete the resulting position was that all unclaimed land or such land as was not subjected to successful claims would be designated Crown Land and became freehold property which could be dealt with by the government or the Crown in the normal manner including being subject to the exercise of powers of alienation or disposition.

GOVERNMENT LANDS ACT
This was an adaptation of the previous Crown Lands Ordinance, and in effect replaced the crown ordinance of 1915 that is when it was promulgated. Its objective was to provide for among other things deed plans and achieve better administration and registration of government plans in land and of govt dealings thereof. All grants of govt land and transactions relating thereto were required to be registered under the Act. The other objective that this particular registration sought to achieve was that of offering

 

 

 

a remedy to all instances of defects patent on earlier registration systems especially that offered by the RTA. The model that the GLA adopts is similar to the registration machinery that is employed by the

Land Titles Act. It is a requirement under the Act that all future grants of govt land have to be registered in line with the provisions made under the Act. Similarly all past documents relating to govt land previously registered under the RDA have to be re-registered under the provisions of the Act so as to bring them under the ambit of the govt lands Act as provided for in the Act. Of course this is consistent with the objectives set out under the Act to cure registration defects under the earlier registration statutes especially the RDA. It is also the intention under the system to introduce a fairly advanced system of registration of deed plans and procedures touching on a wide range of activities or transactions relating to land such as the leasing out regulating and other disposal of govt land. It also accommodates other dealings in relation to such lands such as the need for more scientific plan through accurate surveys so that one can have in effect a land grade of govt land reflected under this particular registration system.

 

The overall effect that this introduction had was that of ushering in an English type of conveyancing which is dependent more on registration rather than an unregistered system especially when it comes to govt grants and other land dealings in relation thereto.

REGISTRATION OF TITLES ACT
This is a 1920 Act introduced with the purpose of facilitating the process of transfer of land through a registration of transfer system and essentially its purpose was to introduce in this country a title registration system based on the Torrens principles. This is a system that was introduced in Australia but which worked there so well that it achieved widespread acceptance in other jurisdictions. Our own Act is modeled on the 1897 Registration of Titles Act of the Federal Malay States present-day Malaysia as well as on the 1890 Transfer of Lands Act of the Australian State of Victoria and it gets aspects of both registration. In terms of features the main point of departure implicit on this particular Act is opposed to the earlier ones and especially the GLA is that whereas the earlier ones before it merely provide for a recording of documents system without conferring any additional benefits, the registration arrangement under this Act confers on the land owner what is expressly identified as an indefeasible title which is state guaranteed.

The other Acts or earlier Acts as we have seen in the case of the RDA provide for a registration of a documents which envisages the occurrences but is silent on the issue of validity leave alone the indefeasibility of such a title. In the case of the LTA, we have noted that it does not confer anything it only recognizes and records a fact that is borne out on the ground but in the case of this particular

 

 

 

registration the intention is not only to issue grants and note them through the recording system but to guarantee a title as incapable of being defeated once duly granted. All future grants of govt land and

certificates of ownership of land within the coast be registered under it , remember Govt land is subject matter of the GLA whereas the arrangement of the Coast involves issuances of certificates to recognize the situation of land ownership that preceded any registration regime. If there is a requirement in subsequent Act, in effect the legislature is saying that we do not wish to repeal what was done under the earlier acts such as the GLA but we want you to redo it and it makes it a conversion process to bring the land at the coast under the ambit of GLA and it is from here that we head closer to getting all the registration processes under one Act.

Any land owner who has had his title registered under the GLA is required under the Act to apply to the registrar to have the same registered under the provisions of the Act and this comes with an advantage as it enables the landowners to enjoy the benefits of state guarantees of the resulting titles. It is not strictly a

requirement that conversion be compulsory but the projection is that with certain advantages floated under this Act, eventually we would embark on the route whereby registration under all previous Acts would be phased out to enable us achieve the ultimate goal of having in future all land in the country brought under the umbrella of a single registration statute. The desire to stop that multiplicity and work

towards a single registration statute began with this registration. The truth is that it never advanced that course as far as expected but it was recognition that there was need for a unified rather than multiple registration system in this country.

One who wishes to take advantage of the provisions of the Act will present the original title for endorsement at the same time submit subsequent documents relating to the title so that what in effect happens one abandons registration one opts out of the earlier registration that they fell within and from that point on they become part of the this registration without losing sight of the fact of where the title emanated from.

REGISTERED LAND ACT

The quest for a unified registration system of course can be argued to have started in earnest with the enactment of this particular statute. This was not the only objective that it had in fact its introduction is closely connected with the African Land question in the face of the existence of what amounted to an elitist system of title registration under the earlier Acts which appeared to cater only for the interests of white settlers and coastal Arabs to some extent with regard to private claims to land. Throughout this

 

 

 

period it is instructive to note that no thought and no provision was made for registration of title to land

owned by indigenous people or land falling within the so called native areas or special reserves. It is not until the run up to independence that serious thought was given to introducing a number of initiatives that would address this particular omission i.e. the failure to bring native occupied areas under the ambit of registration. Prior to its introduction THERE WAS SPECIAL AREAS ACT OF 1960 which started of the process which preceded the enactment of THE RLA Cap 300.

It is with the coming of independence and the struggle that preceded this that alerted the indigenous people to the fact that they could agitate for rights after serving in the 2nd world war and the demand for independence cauterized the speedier process of addressing the African Land Question which came through recognizing that they needed to guarantee titles to indigenous people in regard to the land that they occupied. With a wide range of reforms in mind, the grievances by indigenous people regarding land or the shortcomings attendant to that could be attended to through the an ambitious registration

System that was the RLA which sought to introduce for the first time registration in the native areas. The Act also sought to provide a conversion process whereby titles that had issued under previous registrations would be re-issued at whatever appropriate time under the provisions of the RLA in more or less the same issues that RTA had sought but achieved very little of. It also sought to achieve

individualization of title to customary law since in any case the area to which it first applied was with regard to indigenous occupied areas where communal mode of ownership was the rule rather than the exception.

It sought to provide not just a registration system per se but also a code of substantive law which could regulate all matters relating to land ownership as provided for under the Act as well as simplifying the process of conveyancing such land so that unlike other registration which were merely a registration code, here was a move away from that so that substantive law as well as a code for conveyancing was found in the same place. For the other registration regimes the substantive law is to be found in the Indian Transfer of Act of 1898
Native lands were supposed to be registered and the constitutional arrangement was that the title was vested in the local authorities within whose jurisdictions those lands fell. The land communally occupied by the native which could be other the Act could be declared adjudication regions and thereafter claimants would prove their claim or title to that land and where consolidation was desirable it would be done before the land finally registered. The land consolidated and adjudicated would then be registered to individuals and in any event not to more than 5 persons and absolute ownership is created under the Act.

 

In the case of land registered under the previous statutes, if it fell under the trust lands and fell due for renewal, the renewal would be exclusively done under the registration system created by the RLA and those that had not expired would still be deemed valid until such a time that they fell due for renewal then the conditions of the RLA would apply. Through this arrangement the conversion process ensured that through a gradual process,

The Act introduces the highly advanced system of indexing of property showing all the registered land within a particular area and all the information including size, title numbers, any claims, encumbrances or burdens which may affect such land. The RLA registered is regarded as conclusively and final authority on the issue of ownership of land in fact first registration is expressly provided for as being unimpeachable, it cannot be impugned on any grounds whatsoever. Title Deeds are issued as prove of absolute ownership under the Act and this is for the land in the countryside. In the case of township

properties certificate of lease issues for these properties. Both are evidence of ownership. It has been doubted given the wide scope of objectives or goals that the Act sought to accomplish, whether these goals or objectives are predicated on sound principles, i.e. the goal of guaranteeing sanctity of title regardless of how it is procured. The objective of having a unified registration system without providing

for a first tract method of achieving that and leaving it to the events contemplated under the earlier registration Acts to play to the full before it is evoked. The very element of individualizing title of land that has been corporately owned, the wisdom of doing that and all these have raised disaffection in how the statute with its provisions has worked out so far, whether to discredit it and call for a radical overhaul is an issue that occupies the minds of most people today. As of now we have it alongside others and until al properties including those that are valid for 999 years, then we have to wait for much longer before the conversion process sees the light of day and that is why some people have rubbished the whole process and are advocating for an overhaul.

THE SESSIONAL PROPERTIES ACT

The Sessional Properties Act NO. 21 of 1987 this is not a distinct and independent registration system because it is clear that any registration carried out under this regime should be deemed to be carried out under an RLA registration. It introduces a vertical dimension to the issue of property. It makes it possible for an owner to own a property on a floor without owning the ground on which the property stands. The old notion of property is one that is novel in the sense of that a vertical dimension rather than the traditional notion of owning the physical ground is Regardless of the fact that it does not own the ground on which such a unit stands. Classic example is like a scenario of a block of flats i.e.

 

 

 

Delamare Flats are a good case in point. You can have a high-rise building with many floors and each floor has separate units that are distinct from each other and one can own a unit on any floor without having to trace the owner from the owner on the ground floor. You can own the property suspended up in the air. There are mutual rights and obligations that arise under such an arrangement because if it is a high-rise building it will have common stairway, parking, garden pool, runway and therefore rights and obligations have to be carefully balanced so that everyone can share equally in the common amenities. It is the case that such proprietors would enjoy their own units subject to the rights of all others.

 

The requirement under the Act is that if there are burdens like costs to be shared out equitably amongst the various proprietors. The requirement is that for these sectional properties notion to apply to any

property it can only be effective where the residual term is not less than 35 years since Sectional Properties appeals only in major towns where scarcity of land is experienced. The residual charm of the grant should not be less than 45 years and any property that is affected by the provisions of the Act are deemed to be registration under the RLA. The fact that we have mutual rights and obligations on which

the enjoyment of the sectional property unit depends means that there are certain limitations that will have to be imposed as a matter of necessity if the concept is to work. Mutual rights and obligations preclude owners of the units from behaving unfairly as all owners expect the right of support.

These are documents that purport to confer, declare limit or extinguish any right, title or interest in or over immoveable property in which case they have to be submitted for registration. So any documents conferring or purporting to confer, declare limit extinguish any title right or interest over immoveable property is compulsorily registerable under the Act. There are documents which need not be registered. Examples which are given include composition deeds, or documents relating to shares in a joint/company, debentures, certificates upon registration of debenture and leases to land for periods not exceeding 12 months. Documents which are otherwise registerable are provided for by other Acts such as the RLA, GLA or RTA.

In effect the approach taken in determining what is as a matter of law is required to be registered and what need not be registered is one that is not exclusive as it were. A lot of leeway is given to the Registrar to determine what can appropriately be brought under those subdivisions. Section 5 further gives instances where documents can at the option of the persons holding such documents be presented for registration cases such as plans and deed polls and that liberal approach appears to be part of the spirit depending on what the spirit will allow.

 

 

 

 

Section 6 specifically provides that unless accompanied by a certified English translation, no documents appearing in a language other than English will be registered that is the possibility of registering a document in Kiswahili in French or other languages in the absence of a translated copy in English. Behind the reasoning is because English is the official language and this being a formal exercise, the requirement is not out of place. Under the Act the registrar enjoys certain powers, he can decline to register certain documents for any reasons to be furnished including the fact there are alterations that appear on such documents or that there are certain things that have been erased, Section 7 empowers the Registrar to decline registration of such documents if for any given reasons he is of the view that they are unacceptable for registration. He may also decline to register a document who is said to have executed the same denies having done so that fictitious documents are locked out or can be locked out

through the exercise of such discretion. Similarly where the person who is said to have prepared or executed the document appears to lack mental capacity in law to undertake such an exercise in which case Section 17 specifically makes reference to when such a person appears to be an idiot devoid of the requisite capacity. The registrar also enjoys the power to cancel any registration as may have been

procured by way of a mistake or fraud or misrepresentation so the powers enjoyed by the registrar in the exercise of these requirements is that much wide.

In terms of time for presenting a document for registration under this particular system, the provisions of Sections 9 and 10 are instructive. Section 9 states that every registerable document must be presented for registration within two months of its execution and Section 10 creates a penalty in default so that a fine is imposed not exceeding ten times the prescribed registration fee for any registration of a document that is compulsorily registered. Effect of non-registration, for the documents that are compulsorily registerable the position in law is that registration of a document under this system serves merely as prove that the transaction in question did occur and it does not say anything amount the legitimacy of the transaction itself and even where one fails to register a document that is required by law to be registered, that presumptive position still remains and as a further consequence of non-registration, one will be precluded from calling in evidence the contents of any such documents which is subject to compulsory registration which is not registered as by law required. A party seeking to rely on the contents of such a document would suffer a disability i.e. it cannot be used as evidence in court or without leave of court. Procuring such leave is not a matter of right and there has to be good reasons.

REGISTRATION REQUIREMENTS
REGISTRATION LAW UNDER GLA (CAP 280)
The Act also provides for instances where registration of certain transactions is mandatory under Section

 

 

 

99 of the Act, the recent requirement is that all transactions affecting, conferring, purporting to confer or limit or extinguish any title, right or interest in land have to be formalized through a registered instrument. The approach is more or less the same as what we encountered under the RDA and there are exempted cases, documents which need not be submitted for registration under this Act. These include instances where we have a lease created for a period not exceeding one year that is not something that is subjected to registration unless one prefers it.

Section 100 relates to the effect or consequences of non-registration of a registered instrument. No evidence of such transactions can be tendered in court and transactions that are contemplated include sale of land or leases, relating to land transfers or land, mortgages on charges or liens held over land for

them to be effective and for one to assert rights stemming from such dealings of duly registered instruments must be produced so that any document which may be executed and intended to created or assign or limit or extinguish any right interest or title to over land registered under the Act would be ineffectual for all purposes unless completed through a duly registered instrument.

When considering the aspect of whether or not they should be held as void, we are looking at the parties so that the effect of their being void for want of registration is one that operates inter parties. The general provisions of contract would come to play to augment the specific requirements of the Act and other than disabling the adverse claims or interests that may arise in relation to such dealings, one also need to consider the general rules of contract and their effects on other parties vis-à-vis themselves.

REGISTRATION LAW UNDER LTA (CAP 282)
Under the provisions of this Act all documents holding or affecting interests under this Act must be registered special under Section 57 and Section 59. Further that no charge may be created and no mortgage may be created over land except by way of documents. Registration for purposes of this Act is effected by the making of the necessary entries in the register which is created and maintained in line with the provisions of the Act.

There are exceptions so that we have documents which need to be registered, examples include leases for one year or lesser periods, composition deeds, documents relating to shares in joint stock companies, debentures issued by such companies which are capable of creation only by way of floating charge over

the company’s immoveable assets, endorsements upon transfer of such debentures. Those categories of documents need not be registered. The effect of non-registration of an instrument registerable under this Act is addressed by Section 58 of this Act which provides that every document unless registered shall be deemed to be void as against all parties claiming adverse interest in relation thereto. In the event that

 

 

other transactions do occur which comply with the registration requirements i.e. transactions that occur along the registered ones might which are presented duly registered would take precedence over the unregistered ones.

 

THE REGISTRATION LAW UNDER RDA ( CAP 285)

As we said is to be found in those 3 pieces of registration but there is need to be distinguish the weight to be accorded to such registration as that of the RTA and those effected under the GLA and the LTA. The sole benefits and rights stemming under registration effected under GLA and RTA are much stronger because of the strict regime observed in terms of scrutinizing documents as to whether they are in order. For example there is a requirement that a folio is required each time that property is to be registered or charged.

 

THE REGISTRATION LAW UNDER RTA (CAP  281)

The applicable law in this particular instance is to be found in the RTA, the RLA and the ITPA. Under the RTA, it is a requirement that any transfer, charge or lease and any other instrument purporting to confer an interest in land has to be dealt with in accordance with the provisions of this particular Act.

 

That is what Section 20 sets out and it proceeds to add that any attempt to deal in land otherwise htan in the manner set out in the Act will constitute a nullity no instrument unless or duly registered shall be capable or effective to pass an interest in land or land itself unless effected by way of registration that is Section 32 there is a further requirement that any transfers of land which is subject to the provisions of the Act have to be formalized or completed through a registered instrument so apart from Sections 20 through to 25 the registration requirements are underscored. The effect of non-registration is clear and similar to what we have already seen in the case of the law relating to registration of documents. One cannot effectively pass an interest or any rights or title or true right in absence of such registration.

Under the Act a number of documents which require compulsory registration are identified. All leases for periods exceeding 12 months or all such leases which are for periods less than 12 months or one year but which have a right to purchase the reversion have to be registered. Legal Charges similarly have to be completed by way of registered instruments. The effect of the non-registration is that they are invalid and so null and void for all purposes.

THE REGISTRATION UNDER RLA (CAP 300)

The registration of title provided under the RLA is by far the most ambitious as we have previously noted the RLA itself is based on the famous Torrens Systems borrowed sometime back from Australia. The Act sets out to create not just registration code as it were but a substantive legal code which

 

 

regulates all matters pertaining to rights and interests in land under the Act. It also provides for a conversion process which allows for titles previously registered under other statutes to be converted into RLA titles through a defined procedure in the case of such titles all one needs to do is apply all the provisions of the registration clause. Trust lands that has not been previously registered there is the elaborate adjudication, consolidation before the title in the property is registered. Since it seeks to supersede the other registration systems that the previous Acts were introduced, it is projected on a long term framework in the sense that those provisions will only fall due and be applied when the time comes e.g. for the other titles which may not have expired it is understood that they will remain valid and it is only at that time that the projected effect of the Act itself would actually applied.

It creates a register which is for each of the parcels of land, as we saw previously there are sections which deal with various sections, the property section that is Section A gives details such as brief description of the parcel itself and it also gives a description of its appurtenances as well as making references to registry maps for purposes of raising the parcel in questions. Proprietorship Section Part B provides particulars that is name of the registered proprietor and also indicates the presence of any restrictions which may operate adversely to the registered proprietor’s power of disposition such as

Cautions of any inhibitions which restrain the exercise of such powers. The encumbrances Section Part C outline every encumbrance or burden which operates so as to adversely affect the interests or rights of the registered proprietor’s examples include mortgages, leases, and charges in relation to the same property. It should be however noted that with regards to easements, they should be entered both in the properties sections of the title to the dominant tenement as well as in the encumbrances Section of the Servient Title.

The maintenance of the register is supposed to offer at a glance the exact position or status with regard to the property, the registered title and of course that can only be effective if it is presupposed that the register will be updated from time to time as and when changes affecting the property sections for instance in the event of a subdivision resulting in splitting of titles and therefore the need register to reflect the changes and where in case of added encumbrances or additional charges. When these take place the accuracy of the register will depend on this changes being reflected in the register.

In terms of organization of land registries, as provided for under the Act, of course it is presupposed that there is a registry where all information regarding land would be available so that the system would be fed by existence of other original registries which are established under the Act. All registries have registries maps or index maps which is scientifically prepared by the director of surveys in line with the provisions of the Survey Act so that coordination between that particular department and the department of land is absolutely necessary for the system to work.

For purposes of registration of instruments under the Act it should be noted that there is a pacifying that is maintained of keeping of any registered instrument registered under the Act, a presentation book is provided for and kept for purposes of recording details relating to documents including particulars as relates to time and dates of presentation. This is necessary because priority is accorded to transactions according to how or the manner of their presentation so knowing of such details is crucial, each plot is described by reference to its serial number, the typical RLA approach would assume the combination of the district where it is located or some locality which may be settled for purposes of identifying the

property. There may be a section of the district or division followed by a number so that one can tell exactly where the property is located i.e. if it is within Kiambu, you can include Githunguri followed by the parcel number. You can know the area from which the title reference is located. In the end one may need to have a map which can take you to the exact location.

Other than documents affecting or relating to transaction in land operating under the Act there are conditions that allow for more than what you have in the case of other statutes e.g. powers of attorney whether specific or general which entitle a person other than the registered proprietor and which specifically mention the land parcel in question can be presented for recording under the registration in question so that in the even the person so authorized to deal with the property does that there would be no questions as to his competence to undertake exercises of that nature.

Section 38 of the Act is relevant in terms of registration requirements. Instruments or documents which are required to be registered as a matter of obligation include leases and charges. Section 38(1) is explicit that no land lease or charge shall be capable of being disposed off except in accordance with the provision of the Act and any attempt to dispose off any land or lease or charge otherwise than in accordance with the provisions of the Act shall be ineffectual in terms of creating, extinguishing, varying or affecting any lease, estate, right or interest in land which is subject to the Act. There is however an important proviso to that section specifically a provision to S. 38(2) which is to the effect that nothing in that Section shall be construed as preventing any unregistered instrument from operating

 as a Contract so then what we have in this specific letter of the law (whichever statute you are dealing with) does not displace any rule that notwithstanding the legal defects in relation to registration requirements under the Act this should not by any means serve to defeat the rights and obligations of the parties themselves if that is what appears. Such that merely by failing to register the transaction between you and other person, your rights are preserved by taking it from the proviso that a valid contract which creates hose rights and confers those interests would be deemed to exist. One proceeds on the general rules of contract to demand a number of things to be performed if that is what the transaction entitles you to. The major departure that we have in the RLA as compared to the other is that it does not believe that the general rules will be inferred and it comes out to say as much.

Section 47 provides that leases for periods exceeding two years must be registered, it is also a further requirement that leases coupled with an option to renew for a term which if added to the original term of the lease exceeds two years must similarly be completed through registered instruments. Similarly a lease for the life of the lessor or the lessee whichever is the case must be registered a charge must also

be effected by way of registered instruments and so is a transfer under Sections 95, 96 the same position applies in regard to easements, tenements and profits a prendere all these must be completed by away of a duly registered instrument. The Act specifies the limits for presentation of documents for registrations which must occur within 3 months following the execution and so one must present such documents for registration within the stipulated time failure to which a penalty is imposed. It is further possible to

compel registration of certain instruments or any instruments that the chief land registrar may deem necessary where such instruments are compulsorily registrable.

Section 41 empowers the chief land registrar to compel registration of such instruments and failure to register a document that has been called for registration is made an offence punishable by fine. Under the Act periodic tenancies are not registrable.

THE REGISTRATION UNDER THE ITPA OF1882

Most of the requirements are almost uniform and so the Indian ‘transfer of Property Act of 1882 has no major exceptional requirements. Section 54 provides that any transfer of immovable property for more than 100 rupees must be completed by way of registered instrument. Under Section 106 lease of more than 12 months must similarly be completed by way of registration.

PART TWO: EXTRAS

Property law notes (conveyancing )

Fixtures/Chattels
The fact of whether a chattel has been affixed to land so as to become part of the land is a question of law depending on certain circumstances

·         The degree of annexation

·         The object of annexation

The general rule is that a chattel is not deemed to be a fixture unless it is actually fastened to or connected with land or building. Mere juxtaposition or the laying of an article however heavy upon the land does not prima facie make it a fixture even though it subsequently sits on the ground. If a super structure can be removed without losing its identity it will not in general be regarded as a fixture. With regard to the object of annexation the test is to ascertain whether the chattel has been fixed for its mere convenient use as a chattel or for the convenient use of the land or building. It has been held elsewhere that this maxim has no application in kenya.

Shaw vs shah vevshi devshi

This is so because under Sec 108 of Indian Transfer of Property Act, a leasee may even after determination of the lease remove at any time while still in possession of the property leased, all things which he has attached to the earth provided he leaves the property in the state in which he received it.

In the above case the defendant shah obtained 2 decrees for execution against a leasee of a sisal plantation which had certain machinery inform of . the leasee filed objection proceedings against the attachment by the p. It was held that the machinery of this nature formed part of immovable property and were included in the charge over that property provided they were fixed for beneficial use and improvement of that property. They were accessory thereto and they were for the beneficial enjoyment of the land and they were for the permanent enjoyment of the land.

As a general rule, unless an item is physically fixed to the land it will not be  considered as a fixture. Items which rest on the property by their own weight such as a dutch barn, are likely to be regarded as fixtures. Similarly a green house which is not physically attached to the land and which is moved periodically to various sites on the land will not be deemed to be a fixture. Although it is generally true to say that an item will not be regarded as a fixture unless it is physically attached to the land that alone is insufficient. The court will look at the purpose of the annexation to determine whether something is or is not a fixture and in deciding this matter how the parties choose to describe a particular object is not admin istartive. In the case of:

Leigh-vs- taylor

A tapestry attached by...to wooden frames was held not to be a fixture. The purpose of the attachment to the building being to enable the tapestry to be enjoyed as an ornament rather than to enhance the building.

Berkley-vs-Poullette

The principle issue in dispute was whether paintings screwed to the wall and a large sandial on a plinth and a statue weighing half a tonne were fixtures. The court of appeal held that they were not fixtures. Scarman LJ, considered that the starting point in determining this issue was lay vs taylor and the essential issue is whether the purpose of annexation was to enjoy the pics as pics or to enhance the structure of the building.

In the case of:

Holland-vs-Hodgson

Blackburn J explained that blocks of stones placed on top of another without any mortar for the purposes of forming a dunny stone wall would become part of the land although the same stones if deposited in a building yard and for convenience sake stacked on top of each other in the form of a wall would not form part of the land. The issue in cases of this nature seems to be the intention of tha party constructing the item in question and the damage which would be caused to it by removing it.

When describing property one will come across the terms fixtures and fittings.  A fixture is something which due to its attachment to the land becomes part of the land itself. Fittings on the other hand are chattels which are physically on the property but are not part of it. What determines whether an item is a fixture or a fittting is the degree of attachment to the land. There is another category of items that are brought to the land and although they are not fixture per se, they become part of the land. (Exceptions) this issue arose in the case of

Elite stone ltd-vs.-Morris

The plaintiff owned land on which there were constructed wooden bungalows. The bungalows rested upon concrete pillars which were attached to the land and to remove them from the land would have required demolition. The issue that arose was whether the bungalows were a building or a chattel. The house of Lords unanimously held that the bungalows were part of the land. Lord Lloyd of Berrick adopted a tripatight...as follows: an object which is brought onto land maybe classified under one of three broad  heads. It maybe;

·         Chattel,

·         Fixture,

·         Part and parcel of the land itself.

Objects in categories b and c are treated as being part of the land.

CLASSIFICATIONS OF INTEREST IN LAND

The term estate indicates an interest in land of some particular duration. Various interests in land are classified according to their duration. The doctrine of estates together with the fact that land is permanent as opposed to chattels is what makes the law relating to land to be complex. The idea that one does not own the thing itself but rather has an interest in it is what underlines the basis of land holding that is the estate. An estate is therefore an arbstract entity which defines the rights that an owner of an estate has in relatio to the land. The main defining aspect of the estate is its temporal nature and the length of time that the land will be enjoyed. The question that arises is why this occured and what is the point of the arbstract entity. The doctrine of estate seems to be a logical consequence of ....under english law, all the land belongs to the crown and the people held the land for the crown. The other reason is more practical that is certain incidents of ownership can be divided between different people at different times. The doctrine of estates facilitates this process.

At common law, it can in general be said that only two distinct legal rights can exist at the same time in chattels namely possession and ownership. For instance, if A lends his watch to B, the ownership of the watch remains vested in A while B has possession.  In the case of land a large number of legal rights could and still can exist at the time. Eg. A could be entitled to the land for life, B to a life interest in remainder(after A’s death) and C to the fee simple remainder. At the same time, D may own a lease for 99 years subject to a sublease in favour of E for 21 years and the land may be subject to a mortgage in favour of  F, a profit a prendre in favour of G, easements such as right of way in favour of H,J and K and so on indefinitely. Before 1926, all these estates and interests would exist as legal rights some but not all can exist as legal rights today.

In the case of a chattel, ownership is absolute. It is either owned outrightly by one person or by several persons jointly or in common with each other or it is not owned at all. However there is in law, at least in theory no absolute ownership of land. The land is held in tenure and there is a presumption that it is held directly of the crown. It maybe held for various estates and that is for a greater or less period of time. Under english land law, all land was owned by the crown and people held land from the crown originally in return of the perfomance of certain services and it is difficult to say that the tenants actually owned the land itself. They held an interest or estate in the land. Estates were divided into two categories:

·         Freehold estate

·         Leasehold estate.

Freehold estate

This is one whose duration cannot be known with certainty at the outset. One can know its theoritical duration but cannot know in advance when the event will occur which will cause the estate to end. Traditionally, estates were defined in terms of their duration.

A common feature of all estates of freehold was that the duration of the estate although limited, was uncertain. Nobody would say when the death would occur of a particular person and all his future heirs or of a person and all his decendants or of a person alone nor was it certain that the duration would be perpetual. The estate was always liable to determine if some event occured,.originally at common law there were two types of freehold estates:the fee simple and the life estate. To these estates, a third one, the feetail was later added by statute. In the case of fee simple and fee tail, the word fee, denoted that,

·         That the estate was an estate of inheritance. ie an estate which on the death of the tenant was capable of decending to the heir.

·         That the estate was one which might continue forever.

The words simple and tail distinguish the classes of heirs who could inherit. A fee simple decended to heirs special ie lineal decendants only.

A life estate on the other hand was not a fee. It was not an estate of inheritance and it could not continue forever. On the death of the tenant, an ordinary life estate determined and an estate took or but passed under special rules of occupance. Life estate were sometimes called mere freeholds or simply freeholds as opposed to freeholds of inheritance. each estate of freehold could exist in a number of varied forms.

Leasehold Estate

On the other hand leaseholds have for a long time been seen as estates less than freehold and in theory are seen as being inferior. In the early times due to their nature and inferiority leases were seen as personal and not real property. There could however be a lease for 300 years which may in duration be greater than a freehold estate of 99 years. The distinguishing character of leases unlike freehold estate is that their maximum duration is fixed in time. Despite the historical origin of leases of being outside the law of real property it, has been considered for a long period of time that it is an important form of land holding and now forms part of the law of real property

NATURE AND EXTENTS OF FREEHOLDS

FREEHOLD

Fee simple will terminate once the original tenant dies without leaving any descendants or any collateral such as cousin, even before his death, the land conveyed to another tenant who was still alive.

In 1306, it was stated that where a tenant in fee simple alienated the land, the fee simple will continue as long as there were heirs of the new tenant and so on irrespective of any failures of the original tenant heirs

From that time onwards, the fee simple became virtually perpetual. It would terminate only if the tenant for the time being died leaving no heir and it would…….the crowd

The fee simple is the most substantial estate which can exist in land. Even though strictly speaking it is held in tenure and therefore fell short of absolute ownership, in practice it is absolute ownership. A tenant in fee simple enjoys all the advantages of absolute ownership except the form.

His powers of enjoying, using and abusing his land are limited in many ways by a statute and by the rights of his neighbors but they are not limited by any inherent narrowness in the concept of property in land. One of the main rights of an owner of a fee simple is the right of alienation; and his right to everything in, on or over in the land.

TYPES OF FEE SIMPLE

Fee simple maybe absolute or modified

·         Modified fee simple also known as a modified fee is any fee simple except a fee simple absolute.

3 main types:

·         Fee simple absolute – this is the most common type of fee simple and it is an estate that continues indefinitely.(the word absolute means perpetual)

·         Determinable fee – this is a fee simple that will automatically determine on the occurrence of some specified event which may never occur. If the event is bound to happen at some time, then the estate created is not a determinable fee.

Example 1: a grant to A until the death of B gives ‘A’ a life estate to ‘outré’ B, but a grant to X as long as the church of St. Paul shall stand creates a determinable fee simple. If the occurrence of the determining event becomes impossible, the possibility of riveter is destroyed and the fee simple becomes absolute

Example 2: if land is given to A until he marries and A dies a bachelor.

·         Fee simple upon condition – this is a fee simple that has some condition attached to it by which the estate given by the guarantee may be cut short. A grant of land to X in fee simple on condition that he does not marry Y, for example, we’ll give X a fee simple which is liable to forfeiture if the acts that is forbidden i.e. marriage to Y takes place. This type of condition is also referred as a condition subsequent in order to distinguish it from condition precedent relating to the beginning of an estate.

N/B-Difference between a determinable fee and fee simple by condition subsequent is not always easy. The essential distinction is that the determining event in a determinable fee itself sets the limit for the estate that is first granted. A condition subsequent on the other hand is an independent clause added to a limitation of a complete fee simple absolute which operates to defeat it.

MODIFIED FEE

The owner of a modified fee has the same rights over land as the owner of a fee simple absolute. A modified fee may be enlarged to become a fee simple absolute.

FEE TAIL

There are very few fee tails in existence. The hallmark of a fee tail was a limitation to a person and the heirs of his body restricting the inheritance of his lineal descendants as opposed to the collateral limitations who could inherit the fee simple if there were no issues. A fee tail unlike a fee simple was followed by a reversal or a remainder. On the failure of the donee’s lineal issues, the land will still remain with the original owner. A tenant in …had all the original rights enjoyment of a fee simple owner. All   fee tails exist as equitable interest behind trust. This means that the legal estate must be vested in some trustees or trustee

LIFE ESTATE

There existed two types of life estate. The ordinary life estate for the life of the tenant and the estate pur autré vie[1].

The estate of the life of the tenant arose either by either express limitation, for instance, to A for life or by operation of the law.

Estate pur autré vie is an estate that was granted for the life of someone other than the tenant. The person whose life measured the duration of the estate was called ‘Cesteui Quevie’.

An estate pur outré vie could arise by owner of estate as signing it to another person or by an express grant, for instance, to A for the life of X.

Both types of life estates were estates of freehold but none of them was a freehold of inheritance since neither could descend to the heirs.

LEASE HOLDS

Initially the three estates of freehold were the only estates recognized by law. The only other lawful right of possession of property was the tenancy at will. In this case (tenancy at will) the tenant was subject of the mercy of the landlord and could be ejected anytime from the land.

Leases were initially not regarded as property but as personal contracts binding the parties. When they were fully protected by the law they became estates although it was too late to classify them with other estates.

There are several categories of leases:

·         Fixed term of certain durations. – in this case a tenant can hold ;and for a fixed term of a certain duration, say for instance a lease for 99 years. 

·         Fixed term with duration capable of being rendered certain – a lease of land to A from year to year with no other provision as to its duration will continue indefinitely unless either of the parties takes some steps to determine it. At any given moment, the tenant’s estate has a fixed term set to it although it may later be extended if no notice is given. And this also applies to quarterly, monthly weekly or other periodical tenancies.

·         Tenancies at will and at sufferance – a tenancy at will is a tenancy that may continue indefinitely or may be determined by either party at any time. A tenancy at sufferance arises where the tenancy has terminated but the tenant holds over i.e. remains in possession without the landlord’s accent or decent.

Such a tenancy differs from a trespass in that entry to the premises was lawful and landlord must re-enter before being able to sue trespass.

Remainders and reversions

An estate in land may exist either in the form of possession, in remainder or reversion. An estate in possession gives immediate right to possession and enjoyment of the land. Estates in remainder or reversion in the other hand are future interests (Some other person is always entitled in possession). Remainder denotes a future gift to some person not previously entitled in the land. Reversion on the other hand signifies the residue of an owner’s interest after he has granted away some lesser estate in possession to some other person.

The absolute estate

Under English property law, where a person is registered as a proprietor of a freehold estate, the registration of that person as the first proprietor vests in the person so registered an estate in fee simple, in possession in the land together with all rights, privileges and appurtenances belonging or appurtenant thereto subject to the following rights and interests:

a.        Encumbrances and other entries if any appearing on the register.

b.       Unless the contrary is expressed in the register subject to such overriding interest if any that affect the land.

c.        Where the first proprietor is not entitled to the land, for his own benefit to the registered land subject as between himself and the person entitled to minor interests to any minor interests of such person of whom he has notice but free form all other estates and interest whatsoever including those of her majesty.

This principle works two-fold.

i.                     It stipulates what the statute gives to a proprietor of absolute interest in land.

ii.                     Secondly, the rights which it takes.

Under Section 24 of the Land Registration Act of 2012:

(a) The registration of a person as the proprietor of land vests in that person, the absolute ownership of that land together with all rights and privileges belonging or that are appetent thereto.

(b) similarly the registration of a person, the proprietor of a lease vests in that person (the lease hold) interest described in the lease together with all  implied and expressed rights and privileges belonging or appetent thereto and subject to all implied and expressed agreements, liabilities or incidents of the lease.

These provisions reflect the English position of a holder of absolute interest in land.

Under Section 25 of the land registration act, the rights of a proprietor whether acquired on first registration or subsequently for valuable consideration or by an order of court cannot be defeated except as provided in the act and shall be held by the proprietor together with all privileges and appurtenances belonging thereto free form all other interest and claims whatsoever.

 They are however subject to the following:

1.        To the leases, charges and other encumbrances and to the conditions and restrictions if any shown in the register.

2.        To such liabilities, rights and interests as affect the same and are declared by section 28[2] not to require the noting on the register unless the contrary is expressed in the register.

Under s. 25(2), nothing in that section shall be taken to relieve a proprietor from any duty or obligation to which the person is subject as trustee.

Under s. 26(1) of the land registration act, the certificate of title issued by registrar upon registration of a proprietor of land or to a purchaser of land upon a transfer of transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute  and indefeasible owner subject to the encumbrances, easements, restrictions or conditions contained or endorsed in the certificate and the title of that proprietor shall not be subject to challenge except:

a.        On the grounds of fraud or misrepresentation to which the person is proved to be a party.

b.       Where the certificate of title has been acquired illegally and procedurally or through a corrupt scheme.

Under s. 28 of the LRA, it provide for what constitutes the overriding interest. Under the same section, unless the contrary is expressed in the register, all registered land shall be subject to the following overriding interest as may from time to time subsist and affect the same without there being noted on the register.

The following are the overriding interests:

a.                    Spousal rise over matrimonial property.

b.                   Trusts including customary rights

c.                    Rights of way, rights of water and profits subsisting at the time of registration under the act.

d.                   Natural rights of lights, air, water and support.

e.                    Rights of compulsory acquisition, resumption, entry, such a user conferred by other written law.

f.                     Leases or agreement for leases for a term not exceeding two years. Periodic tenancies and indeterminate tenancies

g.                   Charges of unpaid debts and other funds which without reference and registration under the act are expressly declared by any written law to be a charge upon the land.

h.                   Rights acquired or in the process of being acquired by virtue of any written law relating to the limitation of action or prescriptions.

i.                     Electric supply lights, telephone and telegraph lines and poles, pipelines, aqueducts, canals, weirs, dams erected constructed or lay in pursuance or by virtue of any power conferred by any written law.

j.                     Any other rights provided under any written law.

Under s. 29 of the LRA, every proprietor at the time of acquiring any land, lease or charge shall be deemed to have had notice of every entry register relating to the land, lease or charge existing and the type of acquisition.

Lecture III

There have been various judicial interpretations in the rights of an absolute proprietor and the rights that they have over land

In the case of Obiero vs. Opiyo and Another, the plaintiff was a wife of Opiyo who died around 1938/39 and the defendants were the sons of a co-wife. She was the registered proprietor of a parcel of land. She claimed damages for trespass against the defendants and an injunction to restrain them from continuing or repeating acts of trespass. The defendants in their defense stated that they were in possession of the land in dispute and that they had cultivated it over a long period of time. They claimed that they were the owners of the land in dispute under customary law and denied the plaintiff’s title to the land. This dispute had been heard and determined in the plaintiff’s favor by a land adjudication committee and the defendant did not appeal against the decision.

Benet J as he then was not satisfied on the evidence that the defendants ever had any rights to the land under customary law. He held that rights under customary law are not overriding interests under s. 30 of the Registered Land Act. (He said that the rights of a registered proprietor were to be served upon any person….) the defendants were evicted from the land although they had been in possession and actually occupation, and cultivated the land.

In a case of Esiroyo vs. Esiroyo & Another, the plaintiff was the registered proprietor of the land under Registered Land Act. He wanted letters of eviction against the defendants of his land. He also claimed for damages for trespass on the land, and an injunction to restrain the defendants, their wives and children or servants from continuing or repeating any acts of trespass. The defendants were natural sons of the plaintiff and claimed that they were entitled to certain portions of land and to occupy and cultivate those portions because it is land which came to their father from his father and grandfather and so forth. They claimed that their rights were well founded under the luhya customary law. The courts held that rights under customary law are not overriding interests under s. 30 of the Registered Land Act. The court seems to have adopted the position that the plaintiff was no longer bound by customary law as the provisions of the act had taken away the matter in dispute out of the purview of customary law. This means that customary law rights are extinguished upon registration of land under the Registered Land Act.

The court of appeal in a later case of Elizabeth Wangare Wanjohi & 2 other vs. official receiver and interim (continental credit finance ltd) endorsed and affirmed the statement of law as stated in the case of Obiero and the case of Esiroyo with regards to rights under customary law not being overriding interest under s. 30 of the LRA and also with regard to the extinguishing of customary law by registration of land under the provisions of the RLA.

OVERVIEW: There was default in repayment of loan; applicants did not have money to pay the loan; they paid for a perpetual injunction restraining the liquidator from …)

The court of appeal went on to examine the legal concept of overriding interest upon which the applicants were relying and s. 28 and 30(g) of the RLA were considered. The court held that “customary rights as to the occupancy of the suit land as the applicants had were not overriding interests within s. 30 (g) of the RLA and that rights under customary law are extinguished upon registration of land under the RLA.

In another case of Allan Kiama vs. Ndia Mathunya and 9 others, one Karuma Kiragu had transferred land to the appellant Allan Kiama, who subsequently filed suit to eject respondents on grounds that they were trespassers. The respondents counterclaimed the case on the ground that the land belonged to their clan and therefore prayed for a declaration that the appellant held the land in trust for the respondents and alternatively the respondents prayed for a declaration that the appellant held the land subject to the rights of possession, occupation and cultivation of the respondent. The court of appeal declined to issue a declaration of land in trust which had been granted in the high court and this was despite the fact that there was evidence that during land adjudication and registration, the suit land was registered in the name of Karuma Kiragu so that he could later transfer the land to the rightful owners after the rightful owners had been released from detention. Some of their relatives were on the land during land adjudication and registration. Karuma Kiragu who had been registered as absolute owner, on first registration without the words “as a trustee” having been entered on the land registrar had sequent transferred the land to the appellant. In refusing a declaration of trust, the Court of Appeal held that it had not been proved by expert evidence that Kikuyu Customary law contains the concept of a resulting trust within the jurisprudence as demanded by s. 48 and 51 of the Evidence Act. The court of appeal therefore went ahead to order rectification of the land register in favor of the respondents on the basis of the overriding interest under s. 30 (g) of the RLA.

QUESTION ; ANALYZE THIS CASE LAW.

IN the case of Gathiba vs.  Gathiba , the plaintiff brought a suit against a defendant who was his younger brother seeking him an order to restrain him from trespass or carrying any acts in relation to a piece of land of which the plaintiff was registered as an owner under the RLA. The plaintiff stated that he had solely paid for the purchase price of the land and it belonged to him absolutely and free from any claim by any family member. The defendants opposed the suit claiming that the land belonged to the family as it had been purchased by their late father. During the period of land adjudication and registration which came after their father’s death their clan decided that the land should be registered in the name of the plaintiff to hold it on his own behalf and on behalf of the defendants. The defendant was not registered as a joint owner of the land ostensive because Kikuyu customary law did not permit unmarried men to own land. The court held as follows:

a.        Kikuyu customary law contained consent of trust or a resulting trust within its jurisprudence as demanded by s. 48 and 51 of the Evidence Act.

b.       A first registration by virtue of s. 143(1) of the RLA should not and cannot be rectified as s. 143(1) preventing rectification is mandatory and absolute.

c.        Rights under customary law are not overriding interests under s. 30 of the RLA and customary law rights in land are extinguished upon registration of the land under RLA.

d.       The RLA creates a ladder of protected interests that can be arranged as follows;

a.        Absolute proprietorship or absolute ownership under s. 27 (a)

b.       Proprietors or owners registered in fiduciary capacities (trustees) and are therefore not absolute proprietor or absolute owners; they are in the proviso of s. 28.

c.        Leaseholds identified in s. 27(b) of the RLA and this must be registered

d.       Interests described as charges and other encumbrances and conditions as well as restrictions shown in the register. These are in s. 28(a) and must be shown or entered in the register.

e.        The overriding interest as spelled out in s. 28(b) as read with s. 30 of the RLA, they are the only interest which are not registered  or entered in the relevant land registers if any have to be noted in the register a land registrar must an entry.

Lecture IV

A second appeal was then filed, the court held among other things:

a.         That those rights under customary law are subject to rights under written law and are excluded under the clear language of s. 27 and 28 of the RLA. Customary law rights in land are distinguished upon registration of that land under the act and rights under customary law are not overriding interest under s. 30 of the act.

b.       The court further stated as follows:

However since the same registration recognizes trust in general terms without specifically excluding trust from customary law and since African customary law in Kenya generally have the concept or notion of a trust inherent in them where a person holding a piece of land in a fiduciary capacity under any of the customary laws has the piece of land registered in his name under the act with the relevant instrument of acquisition either  describing him or not describing him by the fiduciary capacity that registration signifies recognition by the act of the consequent trust with the legal effect of transforming the trust from customary law to the provision of the act because according to the proviso of s. 28, such registration does not relieve a proprietor from any duty or obligation to which is subject as trustee.

c.        A trust arose from the possession and occupation of the land by the respondent which had the protection of s. 28 and 30(g) of the act.

OTHER FORMS OF PROPRIETORSHIP.

1.       Joint tenancy

A gift of land to two or more persons in joint tenancy is such a gift as imparts to them with respect to all other persons than themselves the properties of one single owner. Joint tenants have separate rights as between themselves but against everyone else they’re in a position of a single owner.

The nature of joint tenancy have two features; the right of survivorship and the four unities.

a.        THE RIGHTS OF SUVIVORSHIP.

This is the distinguishing feature of a joint tenancy. On the death of one joint tenant, interest in the land passes to the other joint tenant by right of survivorship (jus accresendi) [3]

This process continues until there’s one survivor who then owns the land as a sole owner.

A joint tenancy cannot pass under the will of intestacy of a joint tenant. In each case, the right of survivorship takes residence. It is therefore said that each joint tenant holds nothing by himself and yet holds the whole together with the other. Whether he takes everything or nothing depends upon whether or not he is the last joint tenant to die.

At common law, if there would be no right of survivorship, there could be no joint tenancy. A corporation could not therefore be a joint tenant because it could never die. A joint tenant has full powers of alienation inter vivos[4] although if for example he conveys his interest, he destroys the joint tenancy by severance/sufferance and turns his interest into a tenancy in common. He must however act in his lifetime for a joint tenancy cannot be severed by will.

b.        Four unities must be present.

These four tenancies are the:

                                                                                                                     I.             unities of possession

                                                                                                                   II.            Interest

                                                                                                                 III.            title

                                                                                                                 IV.             time

UNITY OF POSSESION

This is a common feature of all forms of co-ownership. At common law each co-owner is as much entitled to possession of any part of the land as others. He cannot point to any part of the land as his own to the exclusion of others. If this is possible then it is separate ownership and not co-ownership.

Unity of interest

The interest of each joint tenant is the same to the extent, nature and duration because in law, they’re whole one estate. Unity of interest only applies to the estate which is held jointly but if that requirement is satisfied, it does not then matter if one joint tenant has a further and separate interest in the same property.

Example: for instance, a conveyance to A and B as joint tenants for life, remainder to B in fee simple would make A and B joint tenants for life despite the remainder to B.

Unity of title

Each joint tenant must claim his title to the land under the same act or document.

Unity of time

The interest of each tenant must vest at the same time.

QUESTION: Write brief notes on joint tenancy.

TENANCY IN COMMON

Unlike joint tenancy, tenants in common hold land in undivided shares. Each tenant in common has a distinct share in property which has not yet been divided among the co-tenants. Tenants in common therefore have separate interests. The only thing which brings them together into co-ownership is that they both have shares in a single property which has not yet been divided among them. None of them can say for certain the particular parcel of land they own. The size of each tenant’s share is fixed once and for all and is not affected by the death of one of his co-owners. Upon a co-owners death, his interest passes under his will or intestacy for his undivided share is his to dispose as he wishes.

The only unity that is essential is the unity of possession although all 4 unities of a joint tenancy maybe present. For instance, the unity of interest may be absent and the tenants may hold unequal interests so that one tenant maybe entitled to say, one 1/5 share and the other 4/5 share or one may be entitled for life and another in fee simple.

Section 91(1) of the land registration act defines a co-tenancy to mean the ownership of land by two or more persons in undivided shares and includes joint tenancy and tenancy in common.

Under section 91(2) of the same act, if two or more persons not forming an association of persons under the act or any other way which specifies the nature and content of the rights of the persons forming the association own land together under a right specified by that section, they may be either joint tenants or tenants in common.

Under section 91(3) an instrument made in favor of two or 3 persons and the registration giving effect shall show:

a.        Whether the person are joint person or tenants in common

b.       The share of each tenant if they’re tenants in common

Under s. 91(4) where land is occupied jointly, no tenant is entitled to any separate share on the land. Dispositions may only be made by all the joint tenants on the death of a joint tenant that tenant’s interest shall vest in the surviving tenants or tenants jointly.

Each joint tenant may transfer their interest inter vivos to all the other tenants but to no other person and any attempt to transfer an interest to any other person shall be void.

WHY SHALL IT BE VOID?

Under s. 91(5) if any land, lease or charge is owned in common, each tenant shall be entitled to an undivided share in the whole and on the death of a tenant, the deceased’s share shall be treated as part of their estate.

Under s. 91(6), no tenant in common shall deal with their undivided share in favor of any person other than another tenant in common except with the concept in writing of the remaining tenants but such consent shall not be unreasonably withheld.

Under s. 91(7) joint tenants who are not trustees may execute an instrument in the prescribed form signifying that they agree to severe the joining ownership and the severance shall be complete by registration in the prescribed register of the joint tenants and tenants in common.

Under s. 91(8)

s. 93(1)

LICENCEES

Doctrine of servitudes

They are also referred to as rights …and as opposed to leases, they are …conferring…enforceable against the land of another person.

Leases on the other hand confer the rights of land itself. They are also referred to rights of aliens solo(solo land)

These rights were previously dealt with under the RLA and are currently covered under the LRA and the Land Act.

The principles of common law and equity apply because of s.3 of the judicature act. These rights bare a lot of misleading similarities. It is therefore important to note the differences in their characteristics Vis a Vis themselves.

(i)                  Easements

An easement is a right amounting to an interest in land allowing one owner of a given piece of land to use or restrict the use of other piece of land owned by another person in some specific way but excludes the former owner taking away the soil or produce or any other commodity independently capable of ownership as is the case concerning the right of profit.

The owner of the other land accepts the holder of the easements to enjoy the rights by allowing such enjoyment by omitting to do some defying acts or by allowing some defined acts to be effected in his land.

An easement can be either positive or negative. Positive easement includes the right to hang clothes on a line passing over another’s land, a right of way, a right to place sign boards and advertisements on another’s land, right to run telephone line over neighboring land and a right to use lavatory on another’s land. Negative easements include easements of support of lights and of air.

 For there to be an easement, the following things must exist:

i.                      There must be two pieces of land and two different owners.

ii.                    The guarantor and guarantee must have legal right to create an easement.

iii.                  The right must be specific

iv.                  The right must be capable of creating a grant

The two pieces of land are known as the dominant tenement and the serviette tenement. The former is a piece of land to which the benefit of the easements accrues and the latter is the piece of land which bears the burden.

Where the pieces of land are not adjoining, they must not be remotely distant from each other.

Case:; pwilbarch colliery co. ltd Vs. woodman where the court held that a right to spread coal dust over a piece of land was held not to amount to an easement without the existence of a serviette tenement.

An easement can be acquired by statute; by deed; or prescription.

Since an easement is a right, it can be acquired by agreement of parties. Such a grant will need to be registered. There can also be an implied easement.

(ii)                 PROFITS

A profit is an interest in land and passes as any other interest in land. It can be defined as the right to another’s land and take out something from the land that is capable of ownership. If the substance taken cannot be owned, then a profit will not arise. The substance of profit can either be enjoyed alone or can be enjoyed by a person in common with others including the person in or upon whose land the substance of profit is situate. Profits include the right to go to another’s land and cut trees say for wood, fetch firewood, and fetch clay or shale.

Profit may be created by an instrument. The instrument must clearly state the nature of the instrument, the period for which it is to be enjoyed and whether it is to be enjoyed in gross or as a pertinent to other land, or a lease and whether it is to be enjoyed by guarantee exclusively or in common with the guarantors. The grant in a profit shall be completed by its registration as an encumbrance in the register of land or lease which it affects and where it is a pertinent to other land or a lease by its registration in the property section or land or lease to which it is a pertinent. A profit granted by proprietor of a lease shall be capable of subsisting only during subsistence of a lease.

Restrictive covenants/agreements

It is possible to stipulate covenants and conditions in a lease, an instrument may contain an agreement by one proprietor of a building on the user or enjoyment on his land for the benefit of the proprietor of another land. Such instrument maybe registered as an encumbrance to the title.

Unless it is noted in the register, a restrictive agreement or covenant is not binding on the proprietor of land or lease burdened by it or anybody acquiring the land or lease. It is not only the proprietor themselves but also their respective successors in title who shall be entitled to the benefit and subject to the burden of it respectively unless the instruments otherwise provides.

CHARGES & MORTGAGES

Charges and mortgages are basically lending transactions. They are basically designed to provide security for money advanced by creditors.

 In the case of samtley vs. wilde, Lindley J defined a mortgage as a disposition of some interest in land or other property as a security for the payment of a debt on the discharge of some other obligation for which it is given. In simple terms a mortgage is a conveyance of land as a security for the payment a debt or the discharge of some other obligation.

Stratham defines a mortgage as follows; “a mortgage is a transaction in which a borrower transfer to a lender ownership of an interest in land, the condition of the transfer being that the ownership or interest is vested in the lender as security for the loan. The borrower is called the mortgagor and the lender is called the mortgagee, the loan is called the mortgage debts and the land, the mortgage property.

Under the ITPA, a mortgage is defined as the transfer of an interest in specific immovable property for purposes of securing interest in payment of money advanced or to be advanced by way of loan an existing or future debt on the performance of an engagement which may give rise to a pecuniary liability.

A charge on the other hand is defined under s. 3 of the RLA as an interest in land securing the payment of money or monies worth or the fulfillment of any condition (and includes sub-charge and the instruments creating the charge). This is the same definition adopted in s.2 of the land act. Under the land act, a charge includes:

a.        Informal charge

b.       Customary charge

It is important to differentiate what constitutes a mortgage and charge,

A mortgage is peculiar to land registered under Government Lands Act & Land Titles Act; A charge is peculiar to land registered under Registered Land Act & Registered Titles Act

A mortgage transfers an interest in specific immovable property for the purposes of securing the payment of money, advanced, or to be advanced by way of a loan; a charge on the other hand does not transfer any interest in the land but designates the land as security for the debts. A mortgage therefore conditionally assigns/conveys interest in land to secure the payment of a debt. The assignment or conveyance is conditional on the default by the borrower in that in the event that the borrower defaults, the mortgagee’s interest in the land becomes absolute. Where the borrower or mortgagor does not default, the land reverts to the mortgagor.

 A charge on the other hand only gives a rise to payment without aspiring transfers in the title unlike a mortgage. In other words whereas mortgage confers interest on the property, charge confers over the property

  Under s. 78 of the land act the provision of charges have a retrospective event. The land act therefore applies to charges that were created before the act came into force. Reference to charged land has the meaning of charged land, charged lease and a second or subsequent charge.

The land act at s.79  creates informal charges by way of a written and witnessed undertaking to charge in land or interest in land or by way of deposit to title of documents with the charge. This is a form of equitable charge.

Under Registered Titles Act, equitable charge is created by deposit of documents of title to land under the act evidenced by an instrument in writing. Memorandum of deposit of title is to be registered under equitable mortgages act. An equitable mortgage or charge is created when the borrower deposits with the lender the documents of title with intent to create security thereon.

Under the RLA it was controversial as to whether an equitable charge may be created under the act. It was argued on the one hand  that RLA does not provide for equitable charges as the title documents is not itself a title per se and further that the RLA provides for how to create a security. In the case of K.C.F.C vs. Ngeny the court of appeal held that s.163 of the RLA imports the common law principle of equity including equitable charges. The express provision recognizing equitable charges under the land act puts this matter to rest.

Under section79 (3) of the RLA a charge of a matrimonial home shall be valid only if any document or form used in applying for such a charge or used to grant the charge is executed by the chargor or any spouse of the chargor leaving in that matrimonial home or there is evidence from the document that it has been accented to by all such persons.

Issues:

i.                     Who qualifies as a spouse?

ii.                    What is a matrimonial home?

Under the act, matrimonial home refers to any property owned or leased by one or both spouses and occupied by the spouses as their family home.

Under s. 79(5), a normal charge shall take effect only when it is registered in a prescribed register and a charge shall not be entitled to exercise any of the remedies under that charge unless it is registered.

What are the ingredients of a charge?

Every charge instrument must contain the following:

i.                     Terms and condition of sale.

ii.                    An explanation of the consequences of default

iii.                  The reliefs of the chargor including the right of sale

Under s. 81(1) of the act, charges shall run according to the order in which they’re registered. Informal charges are also ranked according to the order in which they are made but a registered informal charge shall have priority over unregistered informal charge.

Subject to the provisions of the act, a charge may make provisions to the charge to give further credit to the chargor to a current or continuing account. This is what is called tacking.

Variation of interest rates

Under s. 84(1) of the act, where it is contractually agreed that the rate of interest is variable, the rate of interest payable under the charge shall not be increased or reduced without a written notice served on the chargor by the charge.

The chargee must give the chargor at least 30days notice of the reduction or increment. His notice must state clearly and in a manner that can be clearly understood the new rate of interest to be paid.

Covenants, conditions and powers implied in charges

Under s. 88(1) of the land act, in every charge there shall be covenants binding the chargor to:

a.        Pay the principle money on the day appointed in the charge agreement.

b.       To pay all rates, charges, taxes, rent and other outgoings that are payable in respect to the charged land.

c.        To repair and keep in repair all buildings and improvements upon the charged land and to permit the chargee and chargee’s agent to inspect the state and condition of the building.

d.       To ensure by insurance or any other means that maybe described or which are appropriate.

e.        In the case of agricultural land, to use the land in a sustainable manner.

f.         Not to lease or sub-lease the charged land or part of it for a period longer than one year without the consent of the chargee.

g.       Not to transfer, assign or lease the land or part of it without the consent of the chargee.

h.       In the case of a charge of a lease, during the continuance of the charge to pay, perform and observe the rent, covenants and conditions contained in or implied by and in the lease.

i.         If the charge is a second or subsequent charge that the chargor will pay interest from time to time accruing on the prior charge when it becomes due and will at the proper time pay the principle sum.

j.         If the chargor fails to comply with any of the covenants implied, the chargee may spend any money which is reasonable to remedy the breach and they add the money to the principle sum.

Remedies of a chargee

The remedies that obtain to a chargee under the RLA included the realization of security by way of statutory power of sell, appointment of a receiver and institution of a suit by the chargee to recover the loan amount as a civil debt.

RLA outlawed the remedies for closure and the right of possession.

Exercise right of sale

Institute a suit

Appoint a Receiver

Under the ITPA the chargee or mortgagee would be titled to exercise statutory power of sale, appoint a receiver right to for closure and the right to take possession.

Under s.90 (1) of the Land Act, if a chargor is in default of any obligation fails to pay interest or any other periodic payment or any part therefore due under any charge or in the performance or observation of any covenant, express or implied, and continues to be in default for one month, the chargee may serve on the chargor a notice in writing to pay the money owing or to perform and observe the agreement as the case may be.x

The notice is required to notify the recipient (chargor) on the following:

i.                     Nature and extent of default by the chargor

ii.                    If the default is about failure to perform or observe any covenant in the charge, the thing that the chargor must do or desist from doing so as to rectify the default and the time being not less than two months by the end of which the default must have been rectified

iii.                  If the default consists of non-payment of any money due under the charge, the amount that must be paid to rectify the default and the time being not less than 3 months by the end of which the payment in default must have been completed.

iv.                  The consequences that if the default is not rectified within the time specified in the notice the chargee will proceed to exercise any of the remedies referred to in the act.

v.                   The right of the chargor in respect of certain remedies to apply to the court for the relief against those remedies. If the chargor does not comply within two months after the debt of service of the notice then the chargee may :

a.        Sue the chargor for any money a due and owing  under the charge

b.       Appoint a receiver of the income of the charged land.

c.        Lease the charged land or if the charge is of a lease, sub-lease the land.

d.       Enter into possession of the charged land

e.        Sell the charged land.

Chargee sues for money owed if:

a.    The chargor is personally bound to pay the money.

b.    If by any course other than the wrongful act of the chargor or chargee, the security is rendered insufficient and the chargee has given the chargor sufficient time to give additional security.

c.    If the chargee is deprived of the whole or part of the security through a wrongful act or default of the chargor

Under s. 92(1) the court may order the postponement of any proceedings brought under this section until the chargee has resolved all the remedies relating to the charged land.

A chargee may exercise a power to sell the land. Before exercising the power of sale, the chargee shall serve the charger with a notice to sell which has to be in the prescribed form and shall not proceed to complete a sale until at least 45 days have elapsed from the date of service of that notice of sale.. A copy of the notice is supposed to be served among others;

i.                      the commission if the charged land is a public land;

ii.                    the holder of the land out of which the lease has been granted if the charged land is a lease;

iii.                  spouse of the chargor who had given the consent ;

iv.                  Any leasee and sub-leasee of the charged land.

v.                   Guarantor of the money advanced under the charge

Before a chargee exercises the right to sale:

i.                      A frost sale valuation has to be done.

ii.                    If the sale is to proceed by public auction, the chargee shall ensure that the sale is publicly advertised in such a manner and form as to bring it to the attention of interested buyers.

iii.                  The sale shall be made in a prescribed form and the registrar shall take it as sufficient evidence that the sale has taken place.

Courts have intervened where a statutory notice issued is not valid.

Case St. John vs. cooperative bank of Kenya; the court held that the commission to serve a valid statutory notice is a fundamental breach of statute and it delegates the chargor’s equity of redemption. If a statutory notice is not valid, the chargee’s statutory power of sale does not approve.

ADVERSE POSSESION

What is adverse possession?

The doctrine of adverse possession is closely related to the limitation of actions and restriction in relation to land. The basis of limitation is to shut out the assertion of a right beyond a certain prescribed period of time. Rights must be asserted within time failure to do so results into their extinction. There are different limitation period for different rights.

Tort-3yrs

Contract - 6yrs

For land, the general limitation period is 12 years. The limitations of actions act at section 7 provides that an act may not be brought by any person to recover land after the end of 12 years  from the date of which the right of action accrued to him or if it first accrued to some person through whom he claims to that person.

s. 17 of the limitation of actions act provides that subject to s.18 at the expiration of period provided by this act for a person to bring an action to recover land including a redemption action, the title of that person to the land is extinguished.

s. 37 of the act provides that the act applies to land registered under the GLA,RTA,LTA or RLA in the same manner and to the same extent as it applies to land not so registered.

Under s. 38 of the act where a person claims to have been entitled to adverse possession to land registered under any of the acts, sighted in s.37 or land comprised in a lease registered under any of those acts, he may apply in the high court for an order that he be registered as the proprietor of the land or lease in place of the person registered as proprietor of the land.

RUNNING OF TIME

There are three issues that need consideration:

i.                     When does time begin to run?

ii.                    Whether the time can be postponed & What will postpone time

iii.                  Can time start running afresh?

Time begins to run when the owner of the land has been dispossessed (driven out of possession) or has discontinued his possession (abandoned the premises) and the person claiming adverse possession has now assumed possession in place of the original owner.

The possession must be adverse i.e. inconsistent with the title of the true owner. And will therefore not cover possession by way of a license or possession with the permission of the owner. There must not only be mere possession but also possession with intention to possess the land to the exclusion of all others. (Animus Possidendi)

Fencing of land is strong evidence of adverse possession

It is not a must for the adverse possessor himself to be in occupation, it is enough if he has granted tenancy or possession; exclusive control of possession is necessary.

Possession must consist of the following:

i.                     Be factual; actual factual possession

ii.                    Be accompanied by animus Possidendi

iii.                  Any form of acknowledgement to the owner will negate any intention to posses

SUCCESSIVE SQUATERS

If a squatter sells the land, he can give the purchaser a right to the land which is as good as his own; the same applies to gifts and other dispositions in land and to devolution on his intestacy.

The person taking over the squatter’s interest can add the squatter’s period of possession to his own period. This could also happen if a second squatter dispossesses a first squatter, this is so because time begins to run against the owner from the time adverse possession begun. For as long as possession continues uninterrupted, it does not matter who continues with it.

POSSESION ABANDONMENT

If a squatter abandons possession before expiring of a period of 12years and some time passes before someone else takes possession, the land during duration under which there is no possession ceases to be in adverse possession. If a second squatter takes over time starts to run afresh.

ADVERSE POSSESSION AND THE REQUIREMENT OF LAND CONSENT BY THE LAND CONTROL BOARD

There may be a case where a person enters into sale agreement for land with another and the consent of the land control board is not sought. Such a transaction becomes void and expiry after six months. The issue that arises is whether such a purchaser can acquire good title to the land by adverse possession.

s. 16 of the land control act require consent for sales, leases etc. but no consent is required for adverse possessor to acquire title.

Case of Matheri vs. kanji

The court held that a person is entitled to be registered as the proprietor of land which he has acquired by virtue of occupation even where the initial sale transaction became void for want of consent by the land control board.

In another case of Samuel nyakeregu vs. Samuel onyaru

The trial court; portion of land which the plaintiff had had possession of was ascertainable .

On appeal: the court of appeal held that for about 19 years, the respondent was in exclusive possession of the portion of land bought from the deceased openly and as of right and during all this time the respondent’s said possession was not interrupted by the registered proprietor. The court held that the respondent had acquired prescriptive right over the portion of land occupied by him and was entitled to be registered by him.

In the case of wambugu vs. njuguna

The court of appeal held that in order to acquire adverse possession, the owner of the land must have lost his right to the land by either being dispossessed from it or by discontinuing his possession of it. Occupation by virtue of employment would be an occupational license. A licensee cannot claim adverse possession.

A LICENSE….

Such rights are common in bail life and include the right to lodge in a person’s house; going onto his land to play cricket; storing goods on his premises; or boarding his home

A license is a mere defense of an action in tort and does not confer an estate or an interest in land.

A license cannot therefore bind a successor in title of the licensor. There is a big line between a lease and a license.

Difference between a lease and a license

Where the requirements of a tenancy are not satisfied, the interests can be no more run a license. E.g. if A own a lodging house and sells it, B the purchaser can recover possession from the lodgers who in law are mere licensees not withstanding their agreements.

TYPES OF LICENCES

Licenses can take various forms. There are however three types;

i.                     Bare licenses – this is the simplest form of alicense. It is not supported by any contract such as a glatuitor’s permission to enter a house or to cross a field. Such a license can be either expressly or …a bare license can be revoked at any time on reasonable notice without rendering the licensor liable in damages but the licensee will not be held as a trespasser until he has had reasonable time to withdraw.

ii.                    Contractual license; this is a license that is granted under some terms of some contract which restricts the licensor’s rights to revoke it. The contract is normally express although it can also be implied. Contractual licenses are subject to the same rules which govern all contract.

iii.                  Licenses coupled with an interest; a right to enter another person’s land to hunt and take away a deer killed or to enter and cut down a tree and take it away involves two things:

a.        A license to enter the land

b.       The grant of an interest(aprofi aprendre) in the deer or the tree.

At common law such a license is both irrevocable and assignable but only as an adjunct  of the interest with which it is coupled. It has no independent existence merely as a license.

COMPULSORY ACQUISITION

HOW THE CONSTITUTION AND NEW LAND LAWS HAVE BEEN APPLIED

Certain governmental actions developmental in nature for instance building of roads require land. The state may therefore take property from its private owners and reallocate it to governmental preferred uses.

Compulsory acquisition also domain is the power of the state or its asides to acquire private property for public purposes subject to the payment of compensation. Whenever the government exercises its power, it forces involuntary transfer of property from private owners to itself or asides. The power of eminent domain is derived from the feudal notion that as a sovereign, the state holds the radical title to all land within its territory.

In Kenya, the power is embodied in the constitution which requires the private property can only be acquired compulsorily for public use.

NOTE article 75; 173 & 118 of the Kenyan constitution.

The COK further requires that such public use must be weighed against the hardships that may be caused to the owner. The constitution further requires that the acquisition must be accompanied with payment of adequate compensation.

The rules governing acquisition of trust land and compensation were contained in the trust land act whereas other cases of compulsory acquisition were remunerated by land acquisition act which has been repealed by land act, 2012.     

 The state has powers to regulate the use of any land or any interest in or right over any land in the interest of defense, public safety, public order, public morality, public health. The COK creates Lands commission under ART 67. The functions of the national land commission are:

·         To manage public land on behalf of the national government

·         To recommend a national land policy to the national government.

·         To advise the national government on a comprehensive programme for registration of title in land throughout Kenya.

·         Conduct research related to land and the use of natural resources and to make recommendations to appropriate authorities.

·         To initiate investigations on its own initiative or on a complaint into present or historical land injustices and recommend appropriate redress.

·         To monitor and have oversight responsibilities over land use planning throughout the country.

The land act provides for the procedure for compulsory acquisition of land. Under sec 107 of the Act, whenever the national or county government is satisfied that it may be necessary to acquire some particular land under sec 110 then the respective cabinet secretary or county executive committee member shall submit a request for acquisition of public land to the commission to acquire the land on its behalf. The commission is required to come up with a criteria and guidelines to be followed by the acquiring authorities. The commission may reject a request from an acquiring authority if it does not meet the requirements of subsection 2 and Art 40(3) of the COK.  Provision may be made for compensation to be paid to occupants in good faith of land acquired under clause 3 who may not hold title to the land. Upon approval of a request under subsection 1, the commission shall publish a notice to that effect in the gazette and the county gazette and shall deliver a copy of the notice to the registrar and to every person who appears to the commission to be interested in the land.

Interested persons include any person whose interest appears in the registry, spouse or spouses of any such person as well as any person occupying the land and the spouse or spouses of such persons. Upon service of the notice, the registrar shall then give a notice to the register of all the land to be compulsorily acquired shall be geo-referenced and authenticated by the office or authority responsible for survey at both national and county governments. Once an entry has been made under sec 108, the commission shall then promptly pay in full just compensation for any damage resulting from the entry. Under sec(1)(f)(2) if a land has been acquired for public purpose or interest and the compulsory acquisition fails or seizes, the commission may offer the original owners or their successors in title pre-emptive rights to re-acquire the land but upon restitution to the acquiring authority, the full amount paid as compensation. The commission has powers to make rules to regulate the assessment of just compensation. Under sec 112(1), at least 30 days after the publication of the notice of intention to acquire land, the commission is required to set a date for an inquiry to hear issues of propriety and claims for compensation by persons interested in the land. The notice shall be published in the gazette or county gazette at least 15 days before the inquiry.

Kigika developers ltd-vs-Nairobi city commission

Kanini farm ltd-vs-commissioner of lands

Dispute resolution in land matters.

After 2010

Art.162(2)

Pursuant to s. 162-3 parliament enacted the environment act of 2011; preamble;

·         s.4 of the environment and land act establishes the environment and land court; it says/…. Ensure reasonable and equitability

·         s.13 of the act

·         s.13(2) provides for the jurisdiction of the court….

·         Court can hear redress of violation of rights…art. 42,69 & 70

·         Cases:

·         Court can exercise appellate jurisdiction

·         Has authority over local tribunal ; surbodinate 165(6)of the constitution

·         Prerogative orders….e.g. satiorary to quash decision,mandamus, prohibition

·         Court can also award damages, restitution, specific perfomsnce, declaration

PRINCIPLES

Principle of sustainable development – things like public participation;

International cooperation in the management of environmental …e.g

Intergenerational equity &intragenerational equity

Polluter pays principle

Precautionary principle.

b. land policy under art 60(1) of the constitution

c. judicial authority

d. national values under art. 10(2)

e. values and principles of national service at art. 232(1)

s. 20 of the act provides for ADR …….

The act repeals the land disputes tribunal act no. 8 f 1990

On 28^thjuly 201*

Art. 159 of the constitution

s. 1A and 1B of the civil procedure act

s.3 of the environment and land act

suggestions

magistrate’s court shall continue to hear and determine all cases relating to environment and the use and related to  and title to land whether pending or new in which the courts have requisite jurisdiction.

…shall continue to hear environmental matters in which the tribunal has jurisdiction as conferred by the magistrates and …appeals from the magistrates court shall  lie on the magistrate’s and land’s court

LAND USE, ENVIRONMENT AND LAND PLANNING

Land tenure refers to the terms and condition under which rights to land and land based resources are required, held , transferred or transmitted.

Land tenure therefore denotes the quantum of property rights that a given society has decided to allow individuals or groups thereof to hold and the conditions to which the rights are enjoyed. Because land tenure determines access of land and land based resources, land tenure becomes a critical variable in the management and conservation of the environment.

The importance of tenure in resource use and conservation explains why the state retains the power to regulate private land use or entirely abrogates rights in land in the interest for environmental land conservation#

As far as natural resources are  concerned, management is central to the broad objective of conservation since the utilization of the resources depends on the way in which they are controlled. The aid of a land or resource tenure system is therefore established a control system for the utilization of the resources in question, as regimes of control, resource tenure systems are therefore institutions whereby the methods of acquiring and utilizing natural resources are regulated.

They evolve over time to mediate conflicting interests among users, natural resource management is mainly concerned with ownership; that is the right to use the resource and the right to determine the nature and the extent of use by others. It is in this context that various regimes of land or resource tenure become important

These are private, public and community or customary tenure.

These regimes defines the bundle of rights to occupy use or benefit from land and land based resources under a particular system of law and authority.

In each case, rights are linked to correspondent duties which may include environmental conservation.

Summary:

In many cases, a particular private property use generates far reaching effects for the owners of other property and the public land. This therefore necessitates some form of state regulation of the use of private property rights. The assumption therefore is that there are public rights in private property which justify state intervention in private land used decision making.

Due to the contemporary interest in the environmental quality…the function of the state have been extended to cover the conservation of natural resouces that are within its borders

Police power

This is the power of the state to regulate land use in public interest such as to secure growth per sue …and management

It is also an attribute of state sovereignty

Unlike compulsory acquisition, it does not extinguish property rights but merely regulates their use in order to vindicate public rights that are deemed to be overriding. The state does not pay compensation when exercising this power.

In kenya, this power is exercised mainly through land use regulation. The regulation of use of agricultural land and the regulation of development of land illustrates the use of police power.

Refer to agriculture act, town planning act, land planning act.

END