Properties
and properties in land law theory
1.
The concept of Property
The concept of property
emanates from Roman law wherein it was defined as ‘us utendi et abutendi re
sua, quatenusiuris ratio patitur, ' the right to use and abuse a thing, within
the limits of the law.' iusutendi. Today, the term us utendi is used in civil
law and Roman law, is an attribute of dominium (ownership) indicating the right
or power to use the property particularly by residing there without destroying
its substance.
Barron’s Law Dictionary defines
property as one’s exclusive right to possess, use and dispose a thing as well
as the object, benefit or prerogative which constitutes the subject matter of
that right.
Essentially, property
designates those things commonly recognized as the entity in respect of which a
person or group of persons have exclusive right. The right to ownership
establishes the subject matter as ‘one’s own thing’ giving the person to whom
such right vests the wherewithal to dispose or deal with the property in such a
manner as he deems fit.
According to Oliver Wendell
Holmes, property has two fundamental aspects. The first is the aspect of
possession, that is, the incidence of control over a resource, a thing and a
claim. The second aspect of property is that of title. This entails the
expectation that others will recognize the owner’s rights to control the property
even when he is not in the possession of it and refrain from unduly interfering
with it. The title, or a right of ownership, is what establishes the relation
between the property and other persons, assuring the owner the right to dispose
of the property as they see fit. Some philosophers assert that property rights
arise from social convention. Others find origins for them in morality or
natural law.
The concept of property,
therefore, boils down to such a thing as is capable of being owned by a person
or a body or persons whether a physical object or a body of rights in relation
to a given phenomenon. He who owns the property in a particular case enjoys the
benefits of exercising certain rights over it which includes the right to use,
extract gains from it, dispose it at will, lease it and lend it. These rights
are protected as against other people by the state and any interference of
someone’s right over their property by another person would invariably lead to
liability under both civil and criminal law.
Property is not an absolute
concept. The concept of what property means changes both in time and culture.
Different groups and sub-groups value their own property and the property of
others. Naturally this makes the definition of property difficult.
2.
Definition
of Property
A property is
defined as any physical or intangible entity that is owned by a person or
jointly by a group of persons. Depending on the nature of the property, an
owner of property has the right to consume, sell, rent, mortgage, transfer,
exchange or destroy their property, and/or to exclude others from doing these
things.
3. Classification
of Property
There
are several classifications of property. In the first place, property is
divided into real property, and personal property. Property is also divided,
when it consists of goods and chattels, into absolute and qualified. Absolute
property is that which is our own, without any qualification whatsoever; as
when a man is the owner of a watch, a book, or other inanimate thing: or of a
horse, a sheep, or other animal, which never had its natural liberty in a wild
state. Qualified property consists in the right which men have over wild
animals which they have reduced to their own possession, and which are kept
subject to their power; as a deer, a buffalo, and the like, which are his own
while he has possession of them, but as soon as his possession is lost, his
property is gone.
Property
in personal goods may be absolute or qualified without any relation to the
nature of the subject-matter, but simply because more than one person has an
interest in it, or because the right of property is separated from the
possession. A bailee of goods, though not the owner, has a qualified property
in them; while the owner has the absolute property.
Personal
property is further divided into property in possession, and property or choses
in action.
Property
is again divided into corporeal and incorporeal. The former comprehends such
property as is perceptible to the senses, as lands, houses, goods, merchandise
and the like; the latter consists in legal rights, as choses in action,
easements, and the like.
The existent types of property include:
·
Real property (land),
·
Personal property (physical possessions belonging to
a person), private property (property owned by legal persons or business
entities),
·
Public property (state owned or publicly owned and
available possessions)
·
Community Property (this is an emerging concept
connoting property owned by indigenous communities) and
·
Intellectual property (exclusive rights over
artistic creations, inventions, etc.).
4.
General Characteristics of Property
Modern
property rights are based on conceptions of ownership and possession as
belonging to legal persons, even if the legal person is not a natural person.
In most countries including Kenya, non-natural legal persons including
companies, Co-operatives, Trusts and State Entities enjoy similar legal rights
over property like natural citizens.
Property
rights are protected in the current laws of most states, usually in their
constitution or in a bill of rights. The right to property is also prescribed
in the international legal regime under the United Nations' Universal
Declaration of Human Rights.
Traditional principles of
property rights include: - XTICS OF PROPERTY
-
control of the use of the property:
-
The right to any benefit from the property
(examples: mining rights and rent);
-
A right to transfer or sell the property;
-
A right to exclude others from the property.
Traditional property rights do
not include;
-
Uses that unreasonably interfere with the property
rights of another private party (the right of quiet enjoyment);
-
Uses that unreasonably interfere with public
property rights, including uses that interfere with public health, safety,
peace or convenience.
As a matter of fact, not every
person or entity with an interest in a given piece of property may be able to
exercise all possible property rights. For example, as a lessee of a particular
piece of property, you may not sell the property, because a tenant is only in
possession and does not have title to transfer. Similarly, while you are a
lessee, the owner cannot use their right to exclude to keep you from the
property except with proper notices.
Further, property may be held in a number of forms, such as
through joint ownership, community property, public property, sole ownership or
lease. These different types of ownership may complicate an owner's ability to
exercise property rights unilaterally. For example, if two people own a single
piece of land as joint tenants then, depending on the law in the jurisdiction,
each may have limited recourse for the actions of the other. One of the owners
might sell their interest in the property to a stranger whom the other owner
does not particularly like.
Over the years, legal systems have evolved to cover transactions
and disputes that arise over the possession, use, transfer, and disposal of property,
most particularly involving contracts. Positive law now defines such rights,
and the judiciary is used to adjudicate and to enforce property rights.
The concept of property is closely related to capitalism.
According to Adam Smith, the expectation of profit from "improving one's
stock of capital" rests on private property rights. It is an assumption
central to capitalism that property rights encourage their holders to develop
the property, generate wealth, and efficiently allocate resources based on the
operation of markets. From this has evolved the modern conception of property
as a right enforced by positive law, in the expectation that this will produce
more wealth and better standards of living.
5.
Jurisprudential
Basis of Property
The
most prominent theory on acquisition of right to property is the labor theory
of property. Theorists in this school of thought hold that you own your own
life, and it follows that you must own the products of that life, and that
those products can be traded in free exchange with others. "Every man has
a property in his own person. This nobody has a right to, but himself."
According
to Locke, the reason why men enter into society is the preservation of their
property. Frederic Bastiat puts it thus:
"Life, liberty, and property do not exist because men have
made laws. On the contrary, it was the fact that life, liberty, and property
existed beforehand that caused men to make laws in the first place."
On the other
hand, socialism is centered on a critique of the concept of property as
understood by natural lawyers. Socialists state that, among other things, that
the cost of defending property is higher than the returns from private property
ownership, and that, even when property rights encourage their holders to
develop their property or generate wealth, they do so only for their own
benefit, which may not coincide with benefit to other people or to society at
large.
However, a
later emanation of socialism, namely libertarian socialism generally accepts
property rights, but with a short abandonment period. In other words, a person
must make (more or less) continuous use of the item or else lose ownership
rights. This is usually referred to as possession property or usufruct. Thus,
in this usufruct system, absentee ownership is illegitimate and workers own the
machines or other equipment that they work with.
On the other
hand, communism argues that only collective ownership of the means of
production through a polity (though not necessarily a state) will assure the
minimization of unequal or unjust outcomes and the maximization of benefits,
and that therefore private property (which in communist theory is limited to
capital) should be abolished.
Both communism and some kinds of socialism have also upheld the
notion that private property is inherently illegitimate. This argument centers
mainly on the idea that creation of private property always benefits one class
over another, giving rise to domination through the use of this private
property. Noteworthy, communists are not opposed to personal property that is
"hard-won, self-acquired, and self-earned."
6.
Things are not the subject of property
There is a tendency to confuse property
in a legal sense, with the subject matter of the proprietary interest. In the
claim “this is John’s book” the apparent property is the book. The proprietary
interest which property law is concerned with, however, is the relationship
between John and the book. If there can be no proprietary interest in a thing
then for the purposes of Property Law it may be impossible or difficult to
assert rights to it or over it.
Historically, while the issue of the
burial of corpses was a matter for ecclesiastical or church law, the common law
held that there could be no property right in a body provided it was dead.
Hence the general rule that there can be no property in a dead body. In the
case of R v Price,the accused could not be successfully
charged with indecent theft of his dead son’s body – which he was trying to
cremate as part of a Druid ceremony -–because a dead body is not the subject of
property.
However, there does appear that there
were custodial rights in human bodies. A person in actual physical custody of
the body has lawful possession unless the possession is made unlawful, for
example by stealing a corpse.
The misdemeanor of stealing corpses became
particularly prevalent once corpses acquired commercial value. Surgeons and
anatomists requiring corpses for dissection would pay high prices to “grave
robbers” for such bodies. In 1832 the Anatomy Act (UK) was passed which
legitimized dissection and created the statutory misdemeanor not a felony of stealing a corpse.
The person with custody also had the
duty to dispose of the body – usually executors, or if the deceased died
intestate, the wife and other relatives. Where a person died without any known
next of kin, the householder of the premises in which he died would have
custody and therefore the duty to provide a decent burial.
The exception to the general rule seems
to be where the body has undergone a process or other application of human
skill such as stuffing or embalming. Thus one may have a property right to a
“mummy” or preserved anatomical specimen.
In the case of Doodeward v Spence
the plaintiff succeeded in an
action of detinue against the police for the return of the preserved foetus of
a two-headed child which he had purchased and been exhibiting for gain.
Griffith CJ stated that: so far as it constitutes property, a human body, or a
portion of a human body, is capable by law of becoming the subject of property.
A distinction was suggested in this
case between a corpse and a still-born foetus, which having never been alive
could not be a corpse.
In the Canadian case of Edmonds v
Armstrong Funeral Home Ltd, it was held that the relatives had a right
to the possession and therefore the return of a part of the body of the
deceased which had been unlawfully removed. This suggests that in the common
law of Canada there may be a right of possession over body parts as well as the
whole body.
In England however, this may not be the
case. The right of possession of the body arises as a result of the duty to
dispose of it. The fact that legislation has had to intervene to authorizes the
disposal of parts of the body suggest that there is not such a right in common
law.
If parts of a body or indeed, the whole body
are capable of becoming the subject of property, then is there any commercial
value in them? Can they be traded? The question is relevant because what is
property is structured by the law. In England commercial dealings in human
organs is prohibited. However, the donation of human organs by the relatives of
the deceased either at the deceased’s request or without it, are governed by
the Human Tissue Act 1961. The fact that both Acts exist suggests, that the law
recognizes the potential commercial exploitation of such property.
In
addition, things like the sea, the air, and the like, cannot be appropriated;
every one may enjoy them, but he has no exclusive right in them. When things
are fully our own, or when all others are excluded from meddling with them, or
from interfering about them, it is plain that no person besides the proprietor,
who has this exclusive right, can have any claim either to use them, or to
hinder him from disposing of them as he pleases. Thus, property considered as
an exclusive right to things, contains not only a right to use those things,
but a right to dispose of them, either by exchanging them for other things, or
by giving them away to any other person, without any consideration, or even
throwing them away. This is not possible with respect to these naturally
occurring resources.
7. Can
Intangible things be Property?
Historically
an understanding of what “property” is has also been hampered by focusing on
physical “things”. While the object of a proprietary interest may be a physical
thing, the interest itself will always be intangible, abstract, legal
structures. Increasingly the objects of such interests are themselves
intangible, for example, personality, likeness, reputation, ideas. A major
reason for this is the commercial exploitation of intangible things and the
need to recognize and protect proprietary interests in relation to these.
Problems of this nature apply not only to
spectacles, but to performances and performers rights. To some extent the law
of contract and copyright legislation which is dealt with later can protect
performers but in some instances this type of protection will be inadequate.
For example, a contract will only bind those who are privy to it.
8. How the
right to property may be lost
In
general, the right to property is lost in three ways, namely; by the act of
man, by the act of law, and by the act of God. It is lost by the act of man by
alienation. But in order to do this, the owner must have a legal capacity to
make a contract. Secondly, property may be lost by the act of man by the
voluntary abandonment of the thing. However, this only occurs where the
abandonment is purely voluntary. Thus, the title to the property is not lost
when things are thrown into the sea to save the ship, the right is not lost.
Further, even a voluntary abandonment does not deprive the former owner from
taking possession of the thing abandoned, at any time before another takes
possession of it.
The title to property is lost by operation of law.
In the first place, this may occur as a result of a forced sale which under a
lawful process of the property of a debtor to satisfy a judgment, sentence, or
decree rendered against him, to compel him to fulfill his obligations.
Secondly, property may be lost by operation of the law as a result of
confiscation, or sentence of a criminal court. Thirdly, the property may be
lost under the law by prescription, by civil death and by capture of a public
enemy.
The
title to property is lost by the act of God, as in the case of the death of
animals, or in the total destruction of a thing; for example, if a house be
swallowed up by an opening in the earth during an earthquake or is struck by
lightening.
Noteworthy,
the moment that the owner loses his possession, he also loses his property or
right in the thing. But in general, the loss of possession does not impair the
right of property, for the owner may recover it within a certain time allowed
by law.
9. Right to property in Kenya
The concept of
property in Kenya as is currently conceived is largely influenced by legal
developments in England. Traditionally, property in England was looked at as
land as reflected in the early crimes of trespass. However, with
industrialization the view of property was widely enhanced as it eventually
included technology, products and even ideas after the advent of the patent.
Initially,
property was vested in the feudal lords who were largely part of the royal
households. The rest of the citizenry were serfs who were required to work on
the land and pay taxes to the feudal lords. With the formation of Parliament,
the Royals control over land assumed less and less influence. People
increasingly tried to enhance their rights to own property. Along with
industrialization, more people became able to own property given that the
concept of property was removed from that of land.
The result was the contemporary view of
property which centers on individualism as the main approach to property
ownership. Thus, under the English law, property is largely owned by
individuals. The right to property means that individuals have a right to own
what they work for and the law protects their interest in the property.
This individual
notion of property is contrasted with the concept of property which dominated
before the colonialism. Essentially, before the advent of colonialism,
ownership of property in Kenya was largely communal. This meant that rights to
property in many respects vested in a body of people mainly marked by a clan or
a tribe or even an extended household. All the produce and benefits that
accrued from the land belonged to all the people of that particular clan.
Thus, with
colonialism came the notion of notion of individual ownership of property in
Kenya. As a result, many people lost their ancestral land during the colonial
period. Kenyans were compelled to change
their viewpoint of property and the emphasis shifted in favour of individual
property rather than communal property. The resultant product was a highly
Europeanized way of looking at property.
Thus, prior to
colonialism, crimes against property were rare given that land was held
communally. Any criminal interference with the property was seen as being an
offence against the whole community and therefore treated as a grave affair.
However, with the changed perspective came new crimes against person hitherto
unheard of such as trespass, theft, interference with property, conversion etc.
With time, the change of how Kenyans viewed property was refined into the
English way of looking at property. To date, the English laws dealing with
property are relevant in Kenya.
10. Ownership and the criminal law
The
idea that a person is asserting their rights to property in the honest, if
mistaken belief, that they have a right to do so has given rise to a special
defense in the case of theft or larceny of property. This is called a claim of
right. It can be found in the old English law Larceny Acts, such as the Larceny
Act of 1916.
Ownership
or a belief in ownership confers rights against others to claim property when
control or possession of it has been lost or transferred. If an accused can
establish a claim of right he may be
acquitted. This is an exception to the general rule that ignorance of the law is no excuse.
In
the case of Ilena Bernhard the accused had been charged with demanding
money with menaces with the intent to steal under the 1916 Larceny Act. The
victim was her ex-lover who had promised to pay her a monthly sum of money for
twelve months. Defaulting after the fourth installment, he returned to England.
She came in pursuit and threatened to expose him to his wife and the press if
he did not keep his word. She claimed that she believed she was entitled to the
sums promised. The Court of Criminal Appeal held that a claim of right did not
have to be founded correctly in law but that:
“A
person has a claim of right within the meaning of the section if he is honestly
asserting what he believes to be a lawful claim, even though it may be
unfounded in law or in fact.”
A
case in which this claim failed was that of R v Turner the accused
had taken his car to be repaired and then removed it from the parking area
outside the garage at night, using his spare key. He was charged under the 1968
Theft Act (UK). His defence was that he believed he had a right to take his own
property, and that the garage was not in possession or control of the car.
However the facts established that the car was being purchased under a
hire-purchase agreement so the accused was not in fact or law the legal owner
of the car. His defence failed and his conviction was upheld.
11.
Possession in criminal law
In certain
crimes, possession alone is considered to be a wrongful act. For example, in
offences of carrying a weapon, the possession of such weapon as is culpable for
the offence suffices as evidence of the wrongful act. In case of possession of
drugs, the actusreus of the crime is
entailed in the passion of the contraband item.
As per the Penal
Code, possession is defined as:
“Possession-
a) “be
in possession of” or “have in possession” includes not only having one’s own
personal possession but also knowingly having anything in the actual possession
of any other person, or having anything in any place (whether belonging to or
occupied by oneself or not) for the use or benefit of oneself or of any other
person…”
In law, possession is not defined.
Only the two classifications of possession as defined above are highlighted,
namely, actual possession and constructive possession. Actual possession exists
when a person has something under his or her direct physical control. An
example of this is form of possession is whereby a person has a particular item
on his or her person or within his reach or has it located where only him has
access to it.
On the other hand, constructive
possession is a more difficult concept because it is based on a legal fiction.
Generally, a person who has the power and intention to control something either
directly or through another person is said to be in constructive possession of
it. Nevertheless, the exact meaning of the term is usually determined by the
context of the criminal situation at hand.
Possession can also be described as
the state of having or owning something at a particular time. In law, possession is the control a person intentionally
exercises toward a thing. In all cases, to possess something, a person must
have an intention to possess it. A person may be in possession of some property
(although possession does not always imply ownership).
Possession requires both control and intention.
Possession is obtained from the first moment that both those conditions exist
simultaneously. Usually, intention precedes control, as when you see a coin on
the ground and reach down to pick it up. Nevertheless, it is conceivable that a
person might obtain control of a thing before forming the intention to possess
it. If someone unknowingly sat on and therefore had control of a $10 note on
the seat of a train, he or she could obtain possession by becoming aware of the
note and forming the intention to possess it. People can also intend to possess
things left, without their knowledge, in spaces they control.
Possession can be obtained by a
one-sided act by which factual control is established. This can take the form
of apprehension (taking an object not in someone's possession) or seizure
(taking an object in someone's possession). It can also be obtained through a
two-sided process of handing over the possession from one party to another. The
party handing over possession must intend to do so.
Most property possessed is obtained
with the consent of someone else who possessed it. They may have been
purchased, received as gifts, leased, or borrowed. The transfer of possession
of goods is called delivery. For land, it is common to speak of granting or
giving possession.
It is possible to legally obtain
possession of a thing without anyone else's consent. First, you might take
possession of something which has never been possessed before. This can occur
when you catch a wild animal; or create a new thing. Secondly, you might find
something which someone else has lost. Thirdly, you might take something from
another person without their consent. Possession acquired without consent is a
property right which the law protects. It gives rise to a right of possession
which is enforceable against everyone except those with a better right to
possession.
An intention to possess, usually called
animus possidendi, is the other
component of possession. All that is required is an intention to possess
something for the time being. In common law countries, the intention to possess
a thing is matter of fact. Normally, it is proved by the acts of control and
surrounding circumstances.
It is possible to intend to possess something
without knowing that it exists. For example, if you intend to possess a
suitcase, then you intend to possess its contents, even though you do not know
what it contains. It is important to distinguish between the intention
sufficient to obtain possession of a thing and the intention required to commit
the crime of possessing something illegally, such as banned drugs, firearms or
stolen goods. The intention to exclude others from the garage and its contents
does not necessarily amount to the guilty mind of intending to possess stolen
goods.
When people possess places to which the
public has access, it may be difficult to know whether they intend to possess
everything within those places. In such circumstances, some people make it
clear that they do not want possession of the things brought there by the
public. For example, it is not uncommon to see a sign above the coat rack in a
restaurant which disclaims responsibility for items left there.
12.
Possession and Intention
Possession
of certain property or the means of acquiring possession may attract criminal
liability. Possession is not an act done at a particular moment but a
continuing state of things. Possession in criminal law may be possession of
dangerous drugs or being in possession of the dye used in the making of stamps
according to section 379 of the Penal Code. Possession is a very key component
of offences against persons.
In Bentham,
the Defendants were charged with possession
of a firearm after a police raided on their premises. They argued that
their intent was an immediate and unconditional one. Their appeal against the
conviction was dismissed. Cain, L.J. stated as follows:
“We
cannot access that the only intention which falls within the section is an
intention immediately and unconditionally to endanger life.”
In
Norristhe
Court of Appeal held that a person can be guilty of an offence under the
Firearms Act 1968, s. 16 if he has in his possession a firearm containing a
cartridge which for some reason cannot be fired. The firearm was a modified
weapon which was capable of firing live round. Someone previously had unsuccessfully
attempted to fire the cartridge but it was incapable of being fired.
The Court holds
that, provided a proper direction in intent is given, it will normally be
sufficient for the judge to explain the definition of a firearm to the jury and
to leave it at that so far as the actusreus
is concerned. While the defendant needs to be in possession of a gun ready for
use, this does not mean a gun loaded with effective ammunition. It can be ready
for use if loaded with ineffective ammunition and can be so ready for use if
the defendant believes that it is. The issue is whether the firearm is ready
for use if and when the occasion arises. The term ready for use is a gloss on
the statute but it illuminates the necessity for intent to endanger life. The
real question will be with what intent the defendant had the firearm in
possession. That intent is not defined by the physical capabilities of the
bullet at the time when the trigger comes to be pulled. Knowledge by the
defendant that the cartridge would not work would be relevant to intent. The
prosecution need not, however, prove an immediate intent to endanger life.
The
court certified a question for the House of Lords but declined to grant leave.
The
question then arises whether the person in possession may retain possession or
exercise possessory rights. In the case of Gordon v Chief Commissioner of Metropolitan
Police, the plaintiff was acquitted of charges of running an illegal
betting shop, Buckley LJ held that the plaintiff was entitled to succeed in his
action to recover money found by him in the house of his employee – who had
been convicted – because forfeiture did not apply to him.
Wrongful
possession need not mean that the person challenging the possessor has a
greater right.
In
the case of Kosrae State v Molid Tolenoa Federated States of Micronesia the court held
that for the crime of larceny; Generally, the prosecution need not prove that
the victim had an unassailable right to possession in the items stolen, only
that the defendant had no greater right to possession of the stolen items.
(A)
PROPRIETARY RIGHT ON LAND
1.
Bundle of Rights
·
As
per the Collins Dictionary, proprietary right is a right over or in respect of
land which can be asserted against others, is that right which is not personal
to given individual but which exist by reason of and as an incident to
ownership of that land.
·
Land
can be owned by way of partition or shareship. What is owned in this form of
partition or shareship are bundle of rights which are due to the owner. These
are bundle of rights to land ranging
from superior rights to simple rights
i.
Right
to sale
ii.
Right
of possession
iii.
Right
to Usufructus (this is the right to enjoy the fruits of the property)
iv.
Right
to lease
v.
Right
to charge
vi.
Right
to create an easement
vii.
Right
to keep out strangers
·
It
is this bundle of rights which constitute an Estate. In common law an Estate
represents the amount of interests in land with regard to ownership and
usufruct (to enjoy the fruits of the property).
·
These
bundle of rights may be temporarily surrendered by the owner thereby creating a
specific form of ownership of land. For instance when a freehold owner
surrender his right of possession in order to enjoy the fruits of his land he
creates a lease.
·
A
perfect example in the creation of this bundle of rights is when
i.
A
transferee from government –this is when a grant of land is made by the government on fee simple
basis or for the term of say 99 years. He becomes the freehold or a lease from
the government.
ii.
As
owner of a fee simple he can lease the land to a 3rd party for 10
years. The leasee may build premises which he can use for theatre hence
creating a license another bundle of rights.
·
What
therefore determines the nature of the bundle of rights is possession and
usufructus (the nature of enjoyment of the fruits of the land)
·
The
respect person therefore need not own the land and building but what bundle of
rights he has to the land in terms of possession and Usufructus. This bundle of
rights are referred to as an Estate In land.
(B)
STATE AS THE OWNER OF LAND
·
A
state is said to be the absolute owner of any land anywhere. This is because
a.
In
most case it is the state that gives grants to individual to own land in form
of fee simple or a lease for a specific term.
b.
When
a grantee of fee simple estate dies and leaves no heirs the land reverts back
and vests in the state as bona vacantia. (Bona Vacantia means the property for
which no one has a claim).
c.
All
laws controlling land are promulgated by the state
d.
Approval
for changing of grant to the state
e.
Compulsory
accusation- State
·
This
means whether the individual become owner by allocation of land through the
National Land Commission, or under 1st Registration and Land’s act of
adjudication process as a result of right of ownership subsisting under
customary law, the land will revert back to state for lack of heirs.
·
This
also applies where at the expiry of a leasehold allocated by the government,
the government takes back the property.
·
Under
the Lands Act, the National Land Commission, on behalf of the Republic of
Kenya, after investigation grants leases of plots in towns for any term not
exceeding 99years and agricultural land 999 years. The grantee becomes the
owner and is subjected to the terms and conditions of the lease. He thus
possesses a bundle of rights of conditions. If he parts with possession, he
remains with the right of reversions during the period of the lease.
·
Under
the Lands Act, the government can convert the 999 year lease to a freehold or
99 to 999 years. On conversion or expiry of the lease, a new lease is granted
to either a new owner or the same owner. Such as an artificial person.
(C)
CREATION OF VARIOUS PROPRIETARY
INTEREST
1.
Proprietorship and Ownership
·
Usually
the word proprietorship is used to refer to ownership. But since the two words
in a legal sense refers to the bundle of rights in land, thus they may refer to
any of those rights ranging from freehold to an easement, including lease,
mortgage or charge.
·
Ownership
of land can be more than one person simultaneously.
2.
Co- ownership
·
There
are 2 types of co-ownership existing in land ownership namely joint tenancy and
tenancy in common
i.
Joint tenancy
·
In
joint tenancy two or more persons are treated as one owner.
·
A
joint tenancy is known specifically through the principle of Jus-accrescendi
(that is the right of survivor ship).
Jus-accrescendi- simply means when one
of the joint tenant dies, the survivor becomes the sole owner of the whole
interest or right in land.
Rules of intestacy therefore do not
apply to the joint tenancy.
The deported tenancy cannot even
dispose his interest under a will. He has nothing to pass to his heirs.
But when he becomes the sole owners he
can pass the whole interest to his heirs.
A joint tenant can thus leave nothing
to his heirs or can leave everything to the heir depending who has died first.
·
The
joint tenancy has thus the unit of title and time.
ii.
Tenancy in common
·
In
this tenancy, the tenant can alienate the share which is fixed but not divided.
The principle of Jus accrescendi does not apply
The rules of intestacy and disposition by will apply.
The shares of the tenant in common may be equal or not out
if is clearly known and can be established.
A tenant in common can sell his share to a third party.
·
Joint
tenancy is suitable in properties owned by husband and wife and those of
trusteeship.
In matters of husband and wife, the heirs are deemed to be
the same hence the convenience of the system.
But during divorce and separation problem arise, which
sometimes can be settled through suite on settlement of property or compromise
on division of the property.
In case of trustees, again which trustees dies may not
matter as what matters is which trustees is ready to take care of the
administration of the land. Trustees interest is the administration of the
land.
·
Tenancy
in common is suitable for business partners who can determine their respective
schemes.
(D)
CAPACITY
·
An
individual competency to deal with land is subject to the competency to
contract. Cap 23 of the law of contract is very critical. Thus the general
principle of the law of contract apply.
·
Besides
because land is peculiar than other contracts, because in land you are dealing
with a bundle of rights other conditions
apply namely;
i.
Under
the law of insurance the principle of caveat emptor also apply to land. Caveat
emptor means let the buyer be aware. This means the person dealing with land
must understand the nature of bundle of rights he will acquire.
ii.
Further
the uberrimae fides- meaning of the at most good faith- transaction in land
must be of good faith otherwise the parties must make full disclosure of all
the facts in land. Hence searches are done before a contract in land is
finalized.
(E)
VARIOUS PARTIES CAN DEAL WITH LAND
1.
Natural
person
2.
Artificial
persons
3.
Legal
and Equity owners
4.
Infant
or Minors
5.
Named
women
6.
Corporation
7.
Unincorporated
association
8.
Trust
1.
Natural Person
Under the law of contract any adult has capacity to enter
into a contract. This includes contracts on land. The only condition is that
they must be adults above 18 years. There are exceptions where natural persons
are minors, married women, lunatics or drunkards.
2.
Artificial Person
The artificial persons include corporations, co-operatives
and trade unions.
Corporations are legal persons having been given the legal
personality by the law. Corporation can be classified into corporation
aggregate and corporation sole. They may be described into Ecclesiastical
corporations as trading or not trading.
Corporation aggregate- is a collection of persons who are
united together into one society and who are followed by a perpetual succession
of members so that the corporation is capable of existing forever. These
include companies registered under the Companies Act and Statutory Bodies. They
further include co-operative societies, University Incorporated under Acts of
Parliament.
Such organizations have power to own land and deal with it
in their name the only limitation is the doctrine of Ultra vires Companies. For
statutory bodies they can only enter into contracts and own property to assist
them to accomplish their authorities statutory functions.
Corporate Sole- This consist of single person
occupying a particular office and each and every other person who succeeded him
such as Bishop. The property is held by that person in the name of the
corporation he represents.
3.
Unincorporated association
There include firms and partnerships, clubs and religious
bodies. They are composed of fluctuating membership.
These organizations raise the issue of capacity in land
ownership and already in land.
Land by these organizations is held by trustees under 3
legal frameworks;
i.
Under
( Trustee (Perpetual Succession Act) a trustee may be appointed by anybody- as
association of person established for religious, educational, literacy,
scientific, social or charitable purpose as trustees who shall be treated as a
body corporation.
Upon incorporation, the registered
trustees become a body corporate with a corporate name and seal.
ii.
Under
the Land (Group Representatives) Act. The principle of registered trustees
perpetual succession Act, was extended to trust lands by this Act.
In this case as land could not be
vested in a tribe, clan or group because of fluctuating membership, a regulated
trustee could be incorporated under the Land’s Act with perpetual succession in
order to hold land on behalf of the group.
This act had advantages in that it
enables the holding of large pieces of land which left divided minutely among
the various members of the fluctuating group would not be economically viable.
The act is applicable in North Eastern province.
iii.
Wakf
Commission Act Cap 109 of the laws of Kenya established what we call Wakfs
Wakfs are religious, charitable and
benevolent endowments or dedications of any property in accordance with Muslim
Law. This is where on vests his land in chanty after the death of the whole
family. Wakfs can be made for the benefit of individuals, families, communities
for a religious or a charitable or benevolent purpose
All wakfs must be registered with the
wakfs commissioners who will give consent to sell or lease any land under wakf
4.
Trusts
Trusts are governed by the law of equity. They have the
capacity to hold and own land
As we have already seen
·
Trustee
under perpetual succession act
·
Land
group representatives Act
Ø Wakf Commissioners are all based on the
concept of trust but they mainly deal with unincorporated association.
There is however trusts which have no relationship with
unincorporated association. There are private or charitable trusts which may be
express as implied dependency on the mode of creation.
Express trusts are expressly created either by will, in
writing or by deed or instrument. It can also be oral but not where land is the
subject matter.
Unlike power of attorney- which is discretionary, trust must
have 3 certainties
i.
Certainty of words- the person setting up the trust must
show by express language that he intends to create a trust. This must be
otherwise the holder of the property in the trust will hold it as a done
ii.
Certainty of the subject matter- 2 aspects
- The property vested in the trust must
be clearly defined.
- The interest to be enjoyed by the
beneficiaries must be clearly defined.
If this is lucking the trust will fail.
iii.
Certainty of objective
This is the purpose for which the trust
has been created. The purpose and the beneficiaries must be specific and
clearly named.
If land is the subject matter of the trust, it must be
conveyed and duly registered in the names of the trustees as proprietors.
Charitable trusts arise when their purposes are charitable.
In the case of income Tax special commissioner v sperisel (1891)
Act 531- a charitable trust is one which is formed for
i.
Relief
of poverty
ii.
Advancement
of education
iii.
Advancement
of religion
iv.
Other
purposes beneficial to the community
Other than for relief of poverty- charitable trust must be
for the public benefit.
The power and management of trust property is spelt in Trustee
Act Cap 167 of the laws of Kenya.
ADMINISTRATION
OF LAND
A. Statutes
The
executive administration of land is carried out through the authority contained
in various statutes largely of an executive nature. These are contained in the
Lands’ Act.
The executive administration of land in Kenya
is vested in the secretary or Lands.
Other
authorities such as the Lands’ Commission and the county government do
administer some of the land.
B.
State
Authority
Under
Article 1 of the Constitution 2010- All sovereign power belongs to the people
of Kenya.
The people may exercise their Sovereign power
either directly or through their democratically elected representatives.
The
government administers all State Property including land for the benefits of
its citizens.
The
state through the concept of social contract, the state makes laws to ensure
orderly possession and utilization of land.
C. History of Government Control of Land
in Kenya
·
Before the colonial government in
Kenya all land was communal land. There were no titles. People owned as per
their community or tribe.
·
The history of land controlling Kenya
started with building of the Kenya-Uganda Railway. As the railway passed
through the fertile, uninhabited lands, the British foreign office responsible
for East African protectorate encouraged white settlers to occupy those
properties in order to create a viable agricultural economy to pay office
railway.
·
In 1920 Kenya became a colony. Before
this time land was accrued by the settlers through treaties. For instance in
1897, the British crown signed a treaty with the Sultan of Zanzibar where land
all the cost became part of the British crown. The British crown after the
aforesaid treaty started issuing certificates of occupancy for 21 years.
·
In 1901 the order in council defined
Crown Land as all public land subject to control by her majesty. It should be noted since land settled by
indigenous was not registered; it was considered unoccupied lands available for
seizure. In 1915 the crown lands ordinance was amended to exclude land occupied
by the natives.
·
At Independence the land policy was
ironical. There was a negotiation for the British aid loans to compensate the
departing settlers, but the definition of Crown Land and all the prevailing
land legislation were merely changed into acts of parliament. The people who
took power entered into the shoes the settlers.
·
The status quo before independence was
maintained in independent Kenya. The government's lands Act was used to
regulate the leasing and disposal of land by the government. The Commissioner
of lands was empowered to lease lands within townships to 99 years and
agricultural land to 999 years. He could convert the 999 years lease to
freeholds. The commissioner of lands was responsible for collection of rents on
government land, forfeiture of land for 120 payment of rent. He administered
the procedures necessary for granting of permission for the submission of
lands.
D. Lands Office
The
land office consist - of the
·
Land registry- of which the principal
registrar of the title of Chief Lands
registrar is the government conveyancer.
·
Other departments under lands office
Include – Survey, Settlement and land adjudication.
·
The department of settlement was
concerned with the settlement of African farmers taking over from former
European farms, as a whole unit or divided up into small units forming a
settlement scheme.
·
The land adjudication department deals
with adjudication of land or consolidation of land in trust land. The lands
office further plays a critical role in the credit system of the country where
land is used as a security- by Banks
etc.
Sheikh Mohammed
Bashir Vs Commissioner of Lands (1959) EALR 1018
The
plaintiff was granted a 99 year lease in the Nairobi City square with a
condition that he should complete the erection of an hotel within 10 years. He
failed to do the same and the commissioner of lands terminated at lease. In the
high court and the court of appeal, it was held at the, the condition to build
was a condition and not a covenant, hence the lease was properly terminated.
The plaintiff appealed to the xx council which held that the condition was a
covenant, and that the commissioner of lands had no right to terminate the
lease. Forfeiture of the government
lease then must be decided by the court not by the commissioner since the
ruling.
E. The Land Control Board
This
act came into force in 1967. under this act all transaction relating to
Agricultural land have to be approved by the Land Control Board of the District
in which the control area is situated within six months of the making of the
agreement between the parties to the transaction.
Controlled
transactions include- Under S.6(1) all Sales, transfers, leases, mortgages,
partitions or other disposals or dealings with agricultural land.
A
transaction is void if consent is not given by the Land Control Board of the
given District.
S.
6 (3) Gives the exemption of transaction that which do not require consent.
·
Transmissions under the will or
intestacy.
Section
(9) 1 Consent may be granted or refused to based on
·
The economic development of the land
or
·
Maintenance of good husbandry of the
land.
Refusal
occurs
·
Where the transferee is unlikely to
farm the land well.
·
Develop the land in adequately.
·
Unlikely to use the land profitably.
·
The transferee has sufficient
agricultural land.
·
Prices paid are unfair or
disadvantageous of any of the parties
·
Land is hold to persons not a Kenyan
citizen.
·
Company whose members are not
citizens.
The
Land Control Board works with the Lands Office.
Challenges to
this Land Control Act
a)
It has not deferred land grabbing.
b)
The act is used as an engine of fraud.
Land owners receive money but no consent. It makes land owners change their
mind and void the transactions.
c)
The board is corrupt.
F. Compulsory land acquisition
Any
interest on land can only be Compulsory acquired under very stringent
conditions under the Constitution. That it is
a)
in the interest of- Defense,- public
order
·
Public Safety- public morality
·
Public health- town or country
·
Promotion of planning public benefit
b)
Acquisition must justify any hardship
to the owner
c)
There must be prompt payment of full
compensation. In compensation the following should be considered
·
Market value of the land
·
The damage sustained by reason of
severance of the land
·
Injury to the owner in terms of
property or income
·
15% of market value of the land to be
added in consideration of the compulsory nature
In the case of the new Mungu Sisal Estate
Limited versus AC, civil case No 320of 1969- the case was concerned with the
quantum of compensation. It was held that compensation should be prompt of the
full compensation at the market value of the property and interest which at
that time was 60%.
Leases
National Land
Commission
·
This is a constitutional independent
government commission whose main function is to manage Public land on behalf of
the national and County Government.
·
The commission has power to initiate
an investigation into present or historical land injustices and recommend
appropriate redress, and monitor and have oversight responsibilities over land
use planning throughout the county.
·
The institution was officially
established under the National Land Commission
·
Act 67(2) of the Constitution the
commission's function are enumerated
a)
Manage public land on behalf of the
national and County governments
b)
Recommend a national land policy to
the national government
c)
Advice the national government on a
comprehensive program for the registration of title in land throughout Kenya.
d)
Conduct research related to land use
of natural resources and recommend to appropriate authorities
e)
To initiate investigation on its own initiative
or on a complaint, into present or historical land injustice and recommend
appropriate redress
f)
Encourage the application of
traditional dispute resolution mechanisms in land conflicts
g)
Access tax on learned and premium on
immovable property in Kenya in any area designated by law
h)
To Monitor and have oversight
responsibilities over land use planning through the country
Under
the national land commission act the commission shall have feather functions
such as;
a)
On behalf and with the consent of the
national and county governments, alienates Public land
b)
Monitor the registration of all rights
and interest in land
c)
Ensure that public land and land under
management of the designated State agencies are sustainably managed for the
intended purpose and for future generations.
d)
Develop and maintain the effective
land information management system at National and County levels
e)
Manage and administer stop all
unregistered trust land and unregistered
f)
Develop and encourage alternative
dispute resolution management mechanisms in land disputes handling.
g)
The commission is mandated to ensure
that all unregister land is registered with 10 years from the date of
commencement of the ACT. Parliament may extended period
h)
The commission may establish County
Land management for the purpose of managing public land.
UNREGISTFRED
INTERESTS WHICH OVERRIDE UNREGISTERED TITLE
1.
INTRODUCTION
Section
30 of the Registered Land (Repealed) Act, in recognizing the centrality of
overriding interests in the enjoyment of estate in land stated that
"unless the contrary is expressed in the register, all registered land
shall be subject to such of the following
overriding interests as may for the time being subsist and affect the
same without their being noted on the register. The registration of Titles
(Repealed) Act, section 23(1) of the Act provided that the Certificate of Title
is conclusive evidence of proprietorship, subject to the encumbrances,
easements, restrictions and conditions contained therein or endorsed thereon.
This provision was interpreted by the Court of Appeal in Republic through’Olum v Angungo and others [1988] KLR 529 as
follows:
Pursuant
to section 23(1) of the Registration of Titles Act, the Certificate of Title
was conclusive evidence that the plaintiffs were the absolute and indefeasible
owners of the land subject to encumbrances, easements, restrictions and
conditions that may be endorsed on the title….
However,
the foregoing interpretation is only taken as a general rule. Court decisions
such as Barclays D.C.O v Patel [1970]
EA 89 (Sir Charles Newbold, P. Duffus, V.P and Law JA) and Kamau v Kamau, (1984) KLR, 539 (Kneller, Hancox JJA and Nyarangi
Ag, JA) invoked the concept of trust where the holder of the unregistered
interest has not taken a positive step to register the interest and found that
the title holder in the circumstances, held the unregistered interest in trust
of the easement holder. Under the Land Registration Act, the scope of
overriding interests to proprietorship is expanded to expressly recognize
spousal rights over matrimonial property, as well as trusts, including
customary trusts. Section 28 of
the
Act states as follows:
Unless
the contrary is expressed in the register, all registered land shall be subject
to such of the following overriding interests as may for the time being subsist
and affect the same, without their being noted on the register (a) spousal
rights over matrimonial property; (b) trusts including customary trusts; (c)
rights of way, rights of water and profits subsisting at the time of first
registration under this Act; (d) natural rights of light, air, water and
support; (e) rights of compulsory acquisition, resumption, entry, search and
user conferred by any other written law ....
This
sub-part a nalyses the various categories of unregistered interests in land,
how they are created and the extent to which they affect registered interest in
land.
2.
ADVERSE POSSESSION
Adverse
possession is a process by which the entire ownership of an estate is
extinguished by lapse of time. In Ann Itumbi Kiseliv James Muriuki Muriithi [2013]eKLR
Adverse Possession has been defined as a method of gaining legal title to real
property by the actual, open, hostile and continuous possession of it to the
exclusion of its true owner for the period prescribed by state law. The period
at the expiry of which the right to adverse possession accrues is defined by
section 7 of the Limitation of Actions Act, as being twelve years, section 7
states: "An action may not be brought by any person to recover land after
the end of twelve years from the date on which the right of action accrued to
him or, if it first accrued to some person through whom he claims, to that
person," at the expiry of which the proprietor of land may not commence an
action to recover the land. The principles upon which the doctrine of adverse
possession turns in Kenya have been well encapsulated in the Court of Appeal
decision of Kinyua v Simon Gitura Rumuri
Nyeri Civil number 265 of 2005, the case involved a dispute over all that
parcel of land known as Nyaki/Giaki/Kihurine/299 measuring 12 acres. The High
Court allowed the respondent to be registered as an adverse possessor of the
entire land, thereby precipitating the appeal. It was admitted fact on appeal
that:
i.
Of the 12-acre piece of land, the respondent had occupied 8
acres;
ii.
The respondent had occupied the land between 1972 and 2003;
iii.
The respondent had openly occupied the land, put up a
homestead and undertaken substantial development on the land;
iv.
The respondent's possession of the land between 1972 and
2003 had been continuous and uninterrupted.
The
Court of Appeal, in upholding the Superior Court decision and finding that the
respondent had adversely acquired the 8-acre piece of the land that he had
occupied uninterrupted between 1972 and 2003.
The
principles evident in the foregoing decision are that for a claim for adverse
possession to uphold, it must be demonstrated that there has been an open,
peaceful but unpermitted possession of an estate in land for uninterrupted
period exceeding twelve years. The right accrues only to that part of land that
is not only possessed, but also in which some positive act, as would be done by
the proprietor of land, has actually been done by the adverse possessor for the
period in issue. In the case of Ndiema Samburi
Soti v Elvis Kimtai Chepkeses, Eldoret C.A number 136 of 2005 the appellant
was found not to have adversely possessed the suit land because firstly, he
failed to prove that he was in actual possession of the entire suit land as he
claimed for the prescribed period.
Secondly,
he was in possession of part of the suit land pending completion of sale of the
piece of land to him by the proprietor, thus with the consent of the
proprietor. The presence of consent divested the appellant of the claim for
adverse possession. In the case of Nyoro Kimwe v John Anderson Githinji,
the appellant was aggrieved by the High Court decision' granting the respondent
the right to adverse possession of Land Reference Number Kiambaa/Ruaraka/ T67
("the suit"). It was undisputed fact that:
i.
The appellant was the registered proprietor of the suit
land;
ii.
The appellant lost possession of the suit land on 18 July
1980 at the expiry of a vacation notice that the appellant had issued to the
respondent, but which the respondent defied;
iii.
The appellant did not permit the respondent to remain on the
suit land;
iv.
It was not until the year 2001 when the appellant asserted
his right to the land when he approached clan elders who in turn gave the
respondent six months vacation notice;
and
v.
The respondent took positive steps to develop the land by
sinking boreholes, putting up structures and farming.
The
Court of Appeal held thus that the respondent was in adverse possession of the
portion of land that he possessed; not exclusive possession of the suit land.
The land was therefore apportioned into two equal parts, with one part being
registered in the appellant's name and the other part being registered in the
name of the respondent.
Other
than the foregoing principles, adverse possession also turns on a number of
principles. Namely;
1.
The estate must be owned by someone; someone must have a
good title to the estate, being a better title than anyone else. The person
with the better title to the estate needs not necessarily be in possession of
the estate. Such that, a proprietor of land who dies and therefore incapable of
actual possession of land does not cease to have a better title to land by the
mere reason of death, without more.
2.
Where title is acquired by way of adverse possession, the
previous owner's right to recover land by ejectment/ eviction is debarred by
lapse of time, with time running on the first day on which the action to
adversely acquire land could have been brought, but was not brought. Put
differently, adverse possession is dependent on the clement of time to
determine whether a person has adversely acquired land. The adverse possessor
must have continuously possessed the land. Such that, in the event that an
adverse possessor is disposed or discontinued from possessing land, then the
time for dispossession or discontinuance is material to determining whether in
fact, the adverse possessor had in fact acquired rights over the land.
The
adverse possessor must have possessed land continuously for twelve years from
the time that proprietor was dispossessed or discontinued. The principle is
well enunciated in the case of Samwel
Nyakenogo v Samuel Orucho Onyaru Kisumu CA number 24 of 2004 where the
Court of Appeal stated that "in order to acquire by statute of limitations
title to land which has a known owner, that owner must have lost his right to
the land either by being dispossessed of it or by having discontinued his
possession of it. The Limitation of Actions Act, on adverse possession,
contemplates two concepts: dispossession and discontinuance of possession. The
proper way of assessing proof of adverse possession will then be whether or not
the title holder has been dispossessed or has discontinued his possession for
the statutory period and not whether or not the claimant has proved that he has
been in possession for the requisite period. Whatever constitutes dispossession
has been restated by Lord Lindhoy, MR in the case of Littledale v Liverpool College (1900) 1 Chp. 19, 21 as follows:
The
next question therefore, is what constitutes dispossession of the proprietor.
Bramwel, L.J. in Leigh v Jack said at 273, that to defeat a title by dispossessing
the former owner "acts must be done which are inconsistent with his
enjoyment of the suit (land) for the purpose for which he intended to use
it."
Regarding
the requirement that the person claiming adverse possession must have been in
continuous and uninterrupted possession of the suit land, the court in Githu v Ndete (1984)KLR 776 set out
instances when possession may be deemed as having been interrupted in the
following words:
Time
ceases to run under the Limitation of Actions Act either when the owner takes
or asserts his right or when his right is admitted by adverse possessor.
Assertion occurs when the owner takes legal proceedings or makes an effective
entry into the land. Giving notice to quit cannot be effective assertion of the
right for the purpose of stopping the running of time under the Limitation of
Actions Act ....
Where
the proprietor of land is dead and at the time of death, the proprietor of land
was in possession of the land, the adverse possessor must demonstrate that the
deceased person was the last person entitled to the land and that the adverse
possessor had possessed the land continuously for twelve years from the time of
death of the deceased person. Where the demised land is held upon trust
specifying the period within which the trustees may recover the land, the
adverse possessor must demonstrate that he has possessed the land continuously
for twelve years from the time that the estate of the trustees was
extinguished. A mortgagee in possession adversely acquires the land at the
expiry of twelve years from the date of assuming possession, and no right of
redemption can be exercised by the mortgagor in respect of the land afterwards.
3.
For a person to acquire land through adverse possession, the
possession for the prescribed time must be evidenced by acts of use and
enjoyment of the estate claimed; there must be evidence that the possessor has
dealt with the estate in the same way as an owner might have been expected to
deal with it. Such that, if a person does something that an owner would not be
expected to do, for instance; seeking permission from a third party before
using the land, that is a conclusive statement the adverse possessor is not in
fact in possession of the land. Section 15 of the Limitation of Actions Act
reinforces this principle in the following words:
For the purposes of this Act, no person is taken to have
been in possession of any land by reason only of his having made a formal entry
thereon, and no continual or other claim upon or near any land preserves any
right of action to recover the land.
Where
a person acquires an estate in unregistered land by adverse possession, the
title of the previous owner is automatically extinguished. For the case of
registered land, however, the registered proprietor is the owner of the estate
and has power to deal with the estate subject to any overriding interests noted
in the register, unless and until someone is registered as proprietor instead.
Such that, the general rule is that a registered title to the previous
proprietor to land cannot be extinguished automatically; there must be some
procedure by which the register can be changed, so as to show the adverse
possessor as the new owner, once the title of the registered proprietor has
been barred. Court decisions have been consistent in this regard.
In
Spectrum Investment Co. v Holmes,
[1981] 1 WLR 221 the court held that where a squatter had been registered as a
proprietor of a lease, the ousted previous proprietor could no longer surrender
the lease as the English Land Registration Act, 1925, gave the registered
proprietor the exclusive power of disposition. In Central London Commercial Estates v Kato Kagaku, [1998]4 AII ER 948
the court held that the proprietor could not surrender a lease because any
surrender would take effect subject to the statutory trust in favour of the
adverse possessor, which is an overriding interest. See also Mark Wonaccott (2006), Possession of
Land, Cambridge: Cambridge University press.
Section
38(1) of the Limitation of Actions Act authorizes a person who claims to have
been entitled to land by adverse possession to apply to the High Court for an
order that he be registered as proprietor in place of the registered proprietor. Indeed in the case of Mbugua Njuguna v Elijah Mburu Wanyoike and another, CA number 27 of
2002, the court stated “by section 38(1) a person who claims to have been
entitled by adverse possession to land may apply to the High Court for an order
that he be registered as proprietor of the land in place of registered
proprietor…a title by adverse can be acquired under the limitation of Actions
Act to part of the parcel of land to which the owner holds title. Such a
claimant must prove that he has been in exclusive possession of the land openly
and as of right and without interruption for a person of 12 years after
dispossessing the owner and adverse possession can be acquired under the
Limitation of Actions Act for part of the land. The mere change of ownership of
the land which is occupied by another under adverse possession does not
interrupt such person's adverse possession. This was stated in the case of Githu v Ndeete (1984) KLR 776.
In
the case of Samwel Nyakenogo v Samuel
Otucho Onyaru, Kisumu civil appeal number 24 of 2004, the respondent, who
had been in exclusive possession of the portion of the suit land openly,
uninterrupted and without permission of the proprietor for about 19 years was
found to have acquired the suit land by adverse possession, notwithstanding the
death of the registered proprietor. The Court said;
In
our view, the purported application for letters of administration in respect of
the deceased land West Kitutu/Mwakibagendi/28 which was confirmed on 15 June
1999 did not interrupt the respondent's adverse possession of the portion
bought from the deceased....
A
suit to enforce a claim for adverse possession is commenced by way of an
originating summons, supported by an affidavit attaching a certified extract of
title. Order 37, rule 7 of the Civil Procedure
Rules,
2010 states that:
An
application under section 38 of the Limitation of Actions Act shall be made by
originating summons. (2) The summons shall be supported by an affidavit to
which a certified extract of the title to the land in question has been
annexed. (3) The Court shall direct on whom and in what manner the summons
shall be served.
It
will be remembered that the use of originating summons to commence a suit is
intended for simple claims that are not necessarily protracted. This
presupposes, therefore, that enforcement of adverse possession is a simple
claim. This may, however, turn out not to be the case. The framers of the rules
of procedure, aware of such an eventuality, have given Courts the discretion to
either request for further facts to support the originating summons, or, in its
volition presume that the suit had been commenced by way of plaint, in which
case, the Affidavits filled will be construed as pleadings, with or without
amendments. It will also be remembered that not all land registration regimes
recognize ‘an extract of title' required to be annexed to the Supporting
Affidavit. Courts have held that, for instance, for the case of land registered
under the Registered Land (Repealed) Act, a Certificate of Search suffices as
the extract of title. In the case of Johnson
Kinyua v Simon Gitura Rumuri, Nyeri civil appeal number 265 of 2005 the
Court of Appeal was of the view that certified extract in Order 37 of the Civil
Procedure Rules refers to titles under other systems of land registration and
not to Registered Land (Repealed) Act (RLA) type of registration; that under the
RLA type of registration, a search certificate meets the requirements of the
relevant law. The onus is on the person
claiming adverse possession to prove. In the words of Kneller, J (as he then
was) in Kimani Ruchine v Swift, Rutherfold & Co Ltd: (1980) KLR 10
The
plaintiffs have to prove that they have used this land which they claim as of
right: Nec vi, nec clam, nec precario
(No force, no secrecy, no evasion). So the plaintiffs must show that the
company had knowledge (or the means of knowing, actual or constructive) of the
possession or occupation. The possession must be continuous. It must not be
broken [or any temporary purpose or by endeavours to interrupt it or by any
recurrent consideration ... No right of action to recover land accrues unless
the lands are in the possession of some person in whose favour the period of
limitation can run. The possession is after all adverse possession, so the
statute does not begin to operate unless and until the true owner is not in
possession of his land. Dispossession and discontinuance must go together; See
sections 9(1) and 13 of the Limitation of Actions Act. So where the use and enjoyment
of the land are possible there can be no dispossession if the registered and
rightful owner enjoys it. Also, if enjoyment and use are not possible ....
3.
EASEMENTS
Easements
are common law rights enjoyed by a person over the land of another. They
include right of way, right of light, right of water, profits, among others.
Whereas easements are nowadays recognized as incorporeal hereditaments, that
is, objects of property in themselves, initially, easements were construed as
rights appurtenant to corporeal hereditaments, that is, a privilege which could
be obtained for the benefit of the corporeal laud. For there to be declared an
easement, four essential requirements must be satisfied:
i.
There must be a dominant tenement and a servient tenement.
That is, an easement does not exist in gross, but can only be appurtenant to
(related to) a dominant tenement. A dominant tenement may be the adjoining land
to, which an easement (such as a right of way) is sought across another's land
(servient tenement). A transfer of dominant tenement does not extinguish the
easement; the easement passes with the land so that an occupier of the dominant
tenement, including a lessee, can enjoy it. As in the case of Leech v Schweder
(1894) 9 App. Cases 463 at 474. The casement is not personal to the occupier,
but to dominant tenement, unless the occupier of the dominant tenement is the
very owner of the servient tenement, in which case, no easement exists.
ii.
An easement must confer a benefit on (accommodate) the
dominant tenement. The benefit conferred to the dominant tenement is not
necessarily analogous to personal advantage to the occupier of the land; the
concern is how the easement makes the dominant tenement better and more
convenient property, such as by increasing its general utility, conferring
access, among others. Refer the case of Mason v Shrewsbury and Hereford Ry
(1871) L.R. QB 578 at 587.
iii.
The dominant and servient tenements must not be owned and
occupied by the same person. In its very nature, easement is a right in the
soil of another (in alieno solo).
Such that, one cannot have an easement over his own land; one cannot have
rights against himself. Refer the case
of Metropolitan Ryv Fowler [1892]1
QB.165 AT 171.
iv.
The easement must be capable of forming the subject matter
of a grant. Although in practice many easements are established by long user,
the presumption always is that a grant was once made; that is, easement must
have been granted by a deed. The underlying principle behind this requirement
is that proprietary interests are fixed by law and finite in number. Easements
are therefore not open to interests which do not conform to the rules about the
general nature of casements. Megarry and Wade in their "The Law of Real
Property" have identified certain rights which are incapable of being
considered as easements, including the right of a party A to drain rainwater
falling on A's land into B's ditches; the right to receive a radio or telephone
signals over B's land; the right to A to have the wall of his house protected
from weather by an adjoining B's house. This is because such listed rights are
too uncertain in their ambit to be easement and might require expenditure by
the servient owner, contrary to the principles for enjoyment of easements. Also, it will be remembered that an easement
does not confer a right to either possession or joint ownership of the servient
tenement, but only the right over servient tenement. As in the case of Copeland v Greenhalf (1952) ch. 488 at
498.
Under
section 32 of the Limitation of Actions Act, where any way or watercourse or
the use of any water has been enjoyed as an easement peacefully and openly as
of right and without interruption for twenty years, the right becomes absolute
and indefeasible. Even if the right has not been registered against the title,
section 3 7 (b) of the Act provides that the title holder holds the easement in
trust of the person who has acquired the easement under section 32 of the
foregoing Act. The said section 37 (b) states:
An
easement acquired under section 32 of this Act does not come into being until a
copy of the judgment establishing the right to the easement has been registered
against the title to the land affected thereby, but is, until that time, held
by the person for the time being registered as proprietor in trust for the
person who has acquired it.
In
Barclays D. C. 0. v Patel [1970] EA
89 the Court of appeal affirmed the position under section 37(b) by stating
that:
It
is clear that the words of section 23 (of the Registration of Titles Act) are
to be read subject to certain limitations and that the absence from the
certificate of title of certain interests in land is not conclusive that those
interests do not exist ... Also, there can be no doubt that rights which are by
law inherent to the ownership of land, such as the right to support of the land
itself and ,the right to receive water from adjoining land, exists and may be
enforced notwithstanding that no memorandum of such rights appears on the
register or on the certificate of title either of the land itself or of the
land which has the burden of providing the support or of permitting the flow of
water. .. if the easement arises by operation of law, even though the operation
of law comes into existence by reason of express acts of the owner, then the
easement will exist over the land and have effect, notwithstanding the fact
that it does not appear on the certificate of title. In this case, as I have
already stated, the easement, of a way of necessity arose by operation of
operation of the law on the division of the original farm into back plots and
front plot. The easement never appeared on the register or on the certificate
of title of any of these plots, but so long as the easement of a way of
necessity exists by operation of law thus long will the easement continue to
have effect over front plot, now the Henning plot, even if it is not entered on
the register or on the certificate of title....
Similarly,
in Kamau v Kamau, the Court of Appeal
held that enjoyment of easement is actionable if obstructed. The Court stated:
"A
right of way and a right to take water are affirmative easements for they
authorize the commission of acts which are injurious to another and can be the
subject of an action if their enjoyment is obstructed ... The right of way
across the respondent's land was a necessity for the appellant ... If the
footpath and .the bridge over the respondents land to that of the appellant's
husband was a way of necessity and an easement by operation of law, it would
continue to exist for as long as the necessity existed, notwithstanding that it
was not referred to in the Certificate of Title to the respondent's land (the
servient tenement) ... for these reasons, I would allow this appeal, set aside
the judgment of the High Court and instead give judgment for Ruth against
Monica for a declaration that Ruth 15 entitled to a right of way over the land
reference Chania/Makwal789 registered of Monica to Ruth's land reference
Chania/Makwal792 for herself, members of her family, her servants, agents,
invitees and/or licencees on foot. .. Furthermore, Ruth must have her
declaration that she is entitled to have a furrow over Monica's land to Ruth's
land with a bridge over that furrow carrying the right of way mentioned in the
previous declaration. Ruth must also have an order directing the Land
Registrar, Kiambu, to register these rights relating to a way to the furrow,
the bridge carrying the right of way over the furrow, and the water from the
river Karamaino along the furrow, when there is water from the river flowing
along it, against the title of Monica's parcel Chania/MakwaI789... "
The
species of easements include rights of way; rights of light; rights of water;
rights of support; rights of air; and rights of fencing. The law recognizes a right of way as an
affirmative easement authorizing a party to do that which would be or appear to
be injurious to the owner of another land (the servient tenement).The Land Act
at Part X thereof deals with "Easements and Analogous Rights."
Section 136 of the Act defines "dominant land" as the land for the
benefit of which any easement is created, while "servient land" is
the land of the person by whom an easement is created. An easement benefits dominant land, but
burdens servient land.
Any
disturbance of a right of way is unlawful and preventable. The Chancery
Division of the High Court, in Lane v
Capsey (1891) 3 Ch. 411 held as follows in regard to disturbance of right
of way: "Any disturbance of a way is unlawful which renders the way unfit
for the purposes for which it was granted, to the injury of the person entitled
to the way. Thus, there would be an unlawful interference if the way is so
damaged by vehicular or other traffic that the grantee is unable to use it, or
if the way is either wholly or partially obstructed by being built upon, or if
the servient tenement is ploughed up so that the way cannot he used ... "
Kenyan
courts have also enforced the right of way in the case of James Ngugi Mbugua and another v Grace Wairimu Mwithiga, Nairobi
High Court civil case number 1174 of 2002 (O.S). The case involved a dispute
over a four metres wide road passing alongside a common boundary of two parcels
of land, namely, L.R. number Kabete/Kibichiko/163 registered in the name of the
deceased Mbugua Ngugi. The plaintiff ‘s were the administrators of the deceased
land. The other parcel of land was L.R. number Kabete/ Kibichiko/162 registered
in the name of the defendant ("defendant's land"). The road in issue
passed from the main road through the defendant's parcel of land to the
deceased land. The use of the road had been enjoyed since the year 1956 till
2002 when its enjoyment was interfered with. The Court, in granting the
application held that "in law, overriding interests are said and known to
"run with the land." In the circumstances the plaintiffs' right of
access cannot be taken away at the whim of the defendant since it subsists for
as long as the necessity for the easement exists."
Most
critically, the right of way is acquired pursuant to section 32 of the
Limitation of Actions Act. The way must have been enjoyed continuously for a
period of20 years preceding the date of invocation of registration. The
relevant part of the provision states:
Where....
(b) any way or watercourse, or the use of any water, has been enjoyed as an
easement ... peaceably and openly as of right, and without interruption, for
twenty years, the right to such access and use of light or air, or to such way
or watercourse or use of water, or to such other easement, is absolute and
indefeasible.
The
lapse of time is a critical requirement for one to be able to claim right of
way against the owner of the servient tenement. In Govindji and another v Sifa Insurance Company Ltd (2003) KLR 466,
Githinji, J (asd he then was), the Court declined to grant the enjoyment of the
right of way over the plaintiff's land on the basis that the way had not been
enjoyed by the defendant continuously for 20 years. It is interesting to note that
the Court also declined to grant the easement of the right of way on the basis
that because the land was registered under the Registration of Titles Act, the
easements that would be' enjoyed were only those endorsed on the Certificate of
Title. The Court held as follows in this regard:
Pursuant
to section 23(1) of the Registration of Titles Act, the certificate of title
was conclusive evidence that the plaintiffs were the absolute and indefeasible
owners of the land subject to encumbrances, easements, restrictions and
conditions that may be endorsed on the title ... Under section 22 of the
Limitation of Actions Act (Chapter 22) an easement of way over the plaintiff's
plot could only be acquired if the defendant had enjoyed access to that way
peacefully and openly as right and without interruption for 20 years since the
plaintiff acquired the property.
The
court's reasoning, particularly on the requirement that an easement be
specifically endorsed on the Certificate of Title may under the Registration of
Titles (Repealed) Act for it to be enjoyed, may be contrasted with the element
of trust in enjoyment of easements such as right of way under Registration of
Titles Act, as developed by the Court of Appeal decisions of Barclays D. C. 0. v Patel and Kamau v Kamau, (1984) KLR, 539 (Kneller,
HAncox, JJA and Nyarangi, Ag JA) discussed in the preceding parts of the
sub-topic on easement.
4.
PROFITS
In
the case of Duke of Sutherland v
Heathcote (1892), a profit a prendre is
the right to take something off another person's land. The thing taken must be
part of the land such as mineral, crops or wild animals existing on the land;
and it was decided that Lowe v J.W
Ashmore Ltd (1971) Ch 545 at 557 the thing taken, must, at the time of
taking, be capable of ownership. Thus, a right to hunt or fish in another's
land exists as a profit as it confers the right to take creatures living on
another's land, which, when killed, are capable of being owned. This can be
contradicted from a right to take water from a pond in another's land or the
right to water cattle in another's land, which exist as easements, not profit.
This is because, water, is neither owned by anyone, nor is water strictly part
of the soil. Where a profit a prendre is enjoyed by one person to the exclusion
of everyone, it is known as a several profit. Where a profit a prendre is enjoyed in common with others, it is known as a
profit in common, or a right in common.
CONCLUSION
Enjoyment
of registered land is not absolute, but subject to the recognized overriding
interests. Whereas the general rule is that overriding interests must be
registered for them to be enjoyed, where the statutory period specified for one
to enjoy the overriding interest has lapsed, notwithstanding that such
interests are not registered, the proprietor of land is deemed to hold such
interests in trust of the beneficiary of the interests.
LAND
TRIBUNALS
INTRODUCTION
In
this chapter we discuss the creation, jurisdiction and sample decisions that
have either been rendered by or appealed from the decisions of the National
Environment Tribunal, Business Premises Tribunal and the Land Acquisition
Compensation Tribunal.
1.
THE NATIONAL ENVIRONMENT TRIBUNAL
Environmental
management ensures sustainable utilization of natural resources in accordance
With predetermined principles. Such principles include sustainability,
intergenerational equity, principle of prevention, the precautionary principle,
the polluter pay principle and public participation. The principle of sustainability promotes use
of natural resources in a way and at a rate that does not lead to the long-term
decline of biological diversity, thereby maintaining its potential to meet the
needs and aspirations of present and future generations.
The
precautionary principle calls for precaution in the making of environmental
decisions where there is scientific uncertainty. It requires that all reasonable
measures be taken to prevent the possible deleterious environmental
consequences of development activities. The need for Environmental Impact
Assessment falls under this principle, as it assesses the impact of proposed
development activities and ensures that any likely adverse impacts on the
environment can be dealt with. The Polluter Pays Principle requires that
polluters of natural resources bear the full environmental and social costs of
their activities. While the principle of
public participation ensures environmental democracy, ensuring participation of
local communities in the environment and development decisions that affect
their lives
In
Kenya, environmental management prior to 1999 was done exclusively by use of
sectoral laws contained in about 77 statutes. In 1999, the Environmental
Management and Coordination Act (EMCA) was enacted in a bid to coordinate the
sectoral laws on environment. EMCA establishes a number of institutions
mandated to perform distinct functions in environmental regulation.
The
highest policy making organ under EMCA is the National Environmental Council which
formulates and enforces policy standards for the protection of the environment.
The principal organization of government responsible for implementation of
environmental policies is the National Environmental Management Authority
(NEMA). NEMA supervises and co-ordinates matters that relate to the
environrnent. Within counties, the EMCA authorizes the Cabinet Secretary for
Environment to appoint County Committees chaired by the respective County Commissioners,
with the mandate of discussing and making decisions on matters that relate to
proper management of the environment within the province or district.
EMCA
also establishes specialized committees such as the Technical Advisory
Committee which advises NEMA on Environmental Impact Assessment Reports; National
Environmental Action Plan Committee is mandated to develop 5-year national
environmental action plans for consideration and adoption by Parliament; and
the Standards and Enforcement Review Committee which advises on water quality
and Standards and procedure for discharging effluents into the environment. EMCA
has two disputes resolution bodies the Public Complaints Committee (PCC) and
the National Environmental Tribunal (NET). PCC is charged with the mandate of
investigating allegations of complaints against any person or NEMA in relation
to allegations of environmental degradation.NET hears appeals from decisions of
the Director General, NEMA and/or Committees of NEMA. The core principle
governing environmental protection in Kenya is that of sustainable development
which is facilitated by the codified public interest litigation in section 3(4)
of EMCA.
In
the execution of its mandate, the National Environmental Tribunal (NET) has
resolved disputes touching on various aspects of the environment. For instance;
1)
In the case of James
Mahinda and others v Director General,
NEMA and another,(Tribunal Appeal
number NET/15/2006 of 2007), the applicant sought that the second respondent,
Universal Corporation Ltd, be stopped from operating its factory within the
neighborhood of LR. number 8325 North of Kikuyu Township on grounds that the
second respondent factory was operating in a residential zoned area; that the
factory emitted offensive fumes, vapor and noise; and that the company
discharged liquid effluent into open drains. The Tribunal declined to restrain
the second respondent from operating the factory. The appellants failed to
prove that the factory was operating in a residential zoned area. The area was
being used for a mixture of residential, commercial and industrial purposes.
Secondly, there was no evidence produced to show that the
factory emitted offensive, fumes and vapours and generated offensive noise;
there was no evidence among the appellants who had been chocked by fumes or of
livestock belonging to any of the appellants having been treated at any time
for coughing. Further, that there was no evidence of open burning of any
rubbish and no evidence of any liquid effluent, apart from storm water, being
discharged into open drains. Regarding claims of noise, the appellants had not
taken any steps to carry out any noise level measurements themselves, thus
could not contradict the sound measurements carried out by the second
respondent, which was within internationally accepted standards. The case is instructive
that the burden to prove breach of environmental regulation lies with the
person alleging such breach.
Whereas it is desirable to conduct an Environmental Impact
Assessment (EIA) study before undertaking a project, not all projects would
require preparation of an EIA study. In such instances, the developer prepares
an EIA project report and submits the same for approval by NEMA. In an EIA
project report, the rigours stipulated in the EIA and Audit Regulations, 2003
of gazettment, radio announcements in official and local languages among
others, are not required. The report, though, would be submitted to lead
agencies among others.
2)
The case of Nakumatt
Holdings Limited v Director General, NEMA and another (Tribunal Appeal No.
NLT 10/02/2005) considered the question as to whether an EIA Project Report
submitted by Great Properties Limited (“second respondent”) in support of its
application for an EIA license for the development of a housing estate on Plot
L.R number 209/10829, Nairobi, was sufficient to sanction the development of
the project. The land on which the housing estate was to be developed adjoined
Nakumatt headquarters off Mombasa Road. The second respondent had commenced
construction of the cut on being informed of the need for an EIA licence, it
stopped construction. The Director, NEMA, approved the EIA Project Report and
exempted the second respondent from carrying out a full EIA study, thereby
prompting the appeal to the Tribunal.
According to Nakumatt, the air pollution levels in the area
were higher than the WHO standards for long term human exposure and the heavy
traffic density and 24-hour industrial operations produced high noise levels
for a residential development. Further, Nakumatt argued that the proposed
development to construct a 350-unit housing estate in an area where no less
than 13 industries were located was ‘out of character with its surroundings.’
Nakumatt therefore argued that the project needed a full EIA study to be
approved, not just the Project Report alone, which denied the appellant of an
opportunity to provide comments. The Tribunal held that EIA licensing process
assesses the likely significant impacts of a proposed project on the project.
In deciding on the nature of the likely impacts, account is taken
of the status of the environment within which the proposed project would be
undertaken. Factors such as air pollution, traffic noise and other features of
the environment in an area off Mombasa Road on which the proposed development
was to be carried out were therefore relevant considerations. Whereas the
situation of the proposed development in an industrial area or an area of mixed
development was a material consideration, such a designation was indicative of
environmental considerations that might arise.
What would be more critical to the Tribunal would be to
ascertain the actual status of the environment in the locality. Considering
that the quality of air, the level of traffic noise and the quality of water
and other features of the environment in the locality were within
internationally recommended limits for human habitation, there was no rationale
to reverse the approval by the first respondent. That in any event, the second
respondent had put in place sufficient mitigatory measures that would manage any
adverse potential adverse environmental impacts that might arise from the
project. Lastly, that before taking the decision, the first respondent consulted
lead agencies as a number of potentially affected neighbors, including the
appellant, thus the appellant's claim that it had been denied of an opportunity
to provide comments on the project was unsustainable.
3)
However, even more instructive on the need for an EIA study
vis-a-vis EIA project report before undertaking a development is the case of Narok County Council and another v NEMA and
others (Tribunal Appeal No. NET/07 of 2006). In this case, the appellants,
Narok County Council and the Kenya Tourism Federation, appeal against NEMA
(first respondent) and Wasafiri Camp Ltd (second respondent), challenged NEMA’s
EIA certificate of approval to the developer, the second respondent, as being
contrary to EIA Regulations. The developer had sought to construct a lodge/camp
in the environs of the Maasai Mara Game Reserve.
The appellants’ grounds of appeal were that first, within
fourteen days after receipt of the EIA study report, the first respondent did
not invite public comments. Secondly, that the first respondent did not hold any
public hearing on the project or seek the participation of major stakeholders
and affected persons such as the appellants. Thirdly, the first respondent did
not address itself to the issue of cumulative environmental impact the project
would have on the environmentally fragile Maasai Mara ecosystem before the
approval.
Further, the appellants argued that the construction of the
camp was carried out without the consent of the area Land Control Board as to
the leasing and change of user from agricultural to commercial purposes; that
the second respondent did not apply for and obtain presidential exemption from
the relevant provisions of the Land Control Act, considering that the members
of the second respondent were not all Kenyan citizens; that the second
respondent carried on the development of the project without first seeking and
obtaining development authority of the Narok County Council; that the second
respondent carried on with the said development without first seeking and
obtaining a certificate of compliance and the approval of the Director of
Physical Planning; that the second respondent drilled a borehole without
authority from the Water Resources Management Authority; and that the second
respondent generally carried on an illegal construction capable of causing irreversible
pollution and ecological deterioration of the fragile Maasai Mara ecological
system. Lastly, that the first respondent approved the EIA project report
despite the fact that the report did not comply with the requirements of the
Environmental Impact Assessment and Audit Regulations, particularly failing to
provide an opportunity for public participation in the report.
In its response, the first respondent disputed the locus
standing of the first appellant to prefer the appeal and that the appeal did not
disclose any reasonable cause of action as contemplated in section 129(1) of
EMCA; that the concerns of all stakeholders were borne in mind before the
requisite approval was given, subject to the terms and conditions it considered
appropriate, to which the second respondent confirmed acceptance. According to
the second respondent, the first respondent was not under any legal obligation to
invite public comments upon receipt of the project report; that there were no
clear environmental issues that had been legitimately, procedurally and legally
put forth to the Tribunal; that the grounds of appeal were emotive and personal
business interests disguised as environmental concerns that could not hold
vis-a-vis the benefit of expertise provided by an expert opinion on the impact
of the environment; that the second respondent acted with in all the laws desired
of it respecting environment, health and security; and that whereas there were
likely to be some environmental impacts in relation to the proposed
development, there were and had been disclosed sufficient mitigation measures
to deal with the same as envisaged in EMCA.
On whether the second respondent ought to have presented an
EIA Study Report or an EIA Project Report, the Tribunal noted that the
appellant’s ground that the respondents were obliged to invite public comments
was unfounded. However, due to the sensitive and fragile nature and uniqueness
of the Mara ecosystem, the Tribunal noted that the appellants were right to
invoke Regulation 10(2) and 10(3) of the Regulations to demand that a full EIA
study ought to have been conducted. The Tribunal held that an EIA study report
and the process provided by the law of EMCA be carried out.
4)
Further, in the case of A
Abdalla, Chairman, Donholm Phase 5 Residents’ Association and another v Director
General, National Environment Management Authority (NEMA) and another
(Tribunal Appeal No. NET/38/2009), in which the appellants sought orders from
the Tribunal to stop the second respondent, Jane Ngonyo, from constructing
storeyed apartments in their neighborhood in Donhohm Phases, to cancel an EIA
license issued to the developer and to order demolition of the second
respondents building.
The Tribunal held that whereas the second respondent commenced
construction of the five-storey building intended for use as residential
apartment Without first obtaining NEMA's approval and license and subsequently
took steps to remedy the situation by applying for and obtaining NEMA’s
approval and EIA license, NEMA did not have adequate chance to fully regulate
the development and the approval contravened express provisions of law
regarding EIA. Secondly, the Tribunal noted that the second respondent took steps
to apply for an EIA license after NEMA’s intervention, but she did not appoint
an EIA expert to prepare a project report in support of her application for
development approval and issuance of an EIA license.
More critically, the second respondent departed from her
commitment and express presentations to NEMA which formed the basis of NEMA’s
approval by representing to NEMA that the flat would be a three-storey building
instead of five-storey building. Two of the second respondent’s floors were
therefore constructed without NEMA’s approval. Thirdly, that the public was
denied the opportunity to participate in the development before commencement as
the second respondent failed to conduct stakeholder consultations. The Tribunal
therefore found that the second respondent failed to legal requirements
regarding EIA, specifically EIA requirements for description of the nature and
design of a project and defiance of the Tribunal’s previous Stop Orders. The
second respondent was thus ordered to demolish two of the five floors of her
building which had been constructed without NEMA approval and NEMA would
supervise the demolition.
The
upshot in the foregoing cases is that Environmental Impact Assessment is a
systematic examination conducted to determine whether or not a project or
activity will have any adverse effects on the environment. The developer is
required to prepare a project report and submit it to NEMA for approval. If
NEMA is satisfied with the project description and the proposed environmental
management plan, NEMA may not mandate a full environmental assessment study.
When projects or developments to be undertaken do not pose substantial risks as
to warrant an Environment Impact Assessment Study, such projects are undertaken
once a project report is submitted to NEMA and a license issued accordingly.
However,
if a party is aggrieved with the approval or issuance determined. Once the
project is approved, a developer is required to obtain approval of development
plans from the relevant local authority. In Nairobi, for instance, development
plans are approved by the City Council of Nairobi. Such approved proposals,
pursuant to the provisions of the City of Nairobi (Building) By-Laws, 1948, and
Local Government (Adoptive by-laws) Building Order, 1968,are to be commenced
within a period of twelve months of the date of the approval. If the proposals
are not commenced within twelve months of the date of the approval, or are not
completed within two years of such date, then the approval would be null and
void and the carrying out of any work there under after such lapse would be
illegal; the developer would in the circumstances be obliged to seek extension
of the approval of the proposals.
Lastly,
under section 64(1) of EMCA, NEMA is empowered to direct a fresh Environment
Impact Assessment Study evaluation to be carried out. This power is exercisable
where there is substantial change or modification in the projector if the manner
in which it is operated poses an environmental threat which could not be
foreseen at the time of the study, evaluation or review, or if it is
established that the information or data given by a proponent in support of his
application for an environmental impact assessment license under section 58 was
false, inaccurate or intended to mislead. Such powers are undertaken mostly
where there is a full BIA study.
2. THE
BUSINESS PREMISES TRIBUNAL
The
Business Premises Tribunal is a creature of section 11 of the landlord and
Tenant (Shops, hotels and Catering Establishments) Act, (Chapter 301, Laws of
Kenya) to handle disputes relating to controlled tenancies. A controlled
tenancy is a tenancy of a shop, hotel or catering establishment that is either
not reduced in writing, or if it is in writing, is for a period not exceeding
five years, is determinable within five years from commencement thereof, or is
specified by the Cabinet Secretary, to be a controlled tenancy. Controlled
tenancy may be terminated or altered by issuing at least two months’ notice in
a prescribed form. In the case of Lall v
Jeypee Investments Ltd( [1972] EA 512), it was held that a landlord issuing
a termination of tenancy notice had to count the date of effectiveness of
notice from the time of receipt of the same by the tenant; and the notice
itself had to be expressed in the prescribed form. In the Words of Madam, J:
“I
do not accept the argument that the landlord should be exonerated because he
used the form that was available to him at the time he gave his notice. In my
opinion, it matter not that at the time of giving of notice by a landlord, no
form has been prescribed or there is in existence a prescribed form which is
not in conformity with the provisions of the Act. It is quite useless to serve
a notice which is not in conformity with the provisions of the Act. A landlord
giving notice must strictly comply with subsection (5). If I may use a Word
from the judgment of Plowman, J in Zenith
Investments (Torquay) Ltd v Kammins Ballrooms Co. Ltd (No. 2) [1971] 1 WLR
1032 at page 1036, the Court is forbidden by subsection (5) to enforce any
notice which is not given in strict conformity with the provisions of the
Act."
The
tenancy notice must specify the grounds upon which the issuing party is seeking
termination, alternation or reassessment of a term of the tenancy, and must
notify the receiving party to notify the issuing party in writing, within one
month of receiving the notice, whether or not he agrees to comply with the
notice. A party receiving a termination notice is required to notify the
issuing party within one month of receipt of the notice as to Whether he
complies with the notice. Also, a party receiving the termination notice is
entitled to make a reference to the Business Premises Tribunal, before expiry
of the notice period, if he wishes to contest the termination.
The
tenancy notice must specify the grounds upon which the issuing party is seeking
termination, alternation or reassessment of a term of the tenancy, and must
notify the receiving party to notify the issuing party in writing, within one
month of receiving the notice, whether or not he agrees to comply with the
notice. A party receiving a termination notice is required to notify the
issuing party within one month of receipt of the notice as to whether he
complies with the notice. Also, a party receiving the termination notice is
entitled to make a reference to the Business Premises Tribunal, before expiry
of the notice period, if he wishes to contest the termination.
Reference
of the matter to the Tribunal automatically stays the tenancy notice till the
Tribunal determines the reference. Worth noting is that controlled tenancies
survive the tenant; death of a tenant does not, of itself terminate a
controlled tenancy. In the case of Waljee
v Rose, it Was held that:
“It
is to be noted that there is nothing in the [Landlord and Tenant (Shops, Hotels
and Catering Establishments) Act] to suggest that death of the tenant would
terminate a controlled tenancy under [the] common law: ‘A tenancy does not
determine by the death of a lessee, but will vest in his legal personal
representatives, who are entitled to give or receive the proper notice to
quit.’
For
a tenancy notice to be valid, the issuing party must demonstrate a firm and
settled intention to undertake the grounds upon which the tenancy notice is
issued. This issue was considered in the case of Kobil Petroleum Limited v Almost Magic Merchants Limited (Nairobi
High Court civil Appeal number 931 of 2003). In this case, the respondent, a
landlord, issued a termination notice dated 21 December 2001 to the appellant,
the tenant on grounds that the respondent intended to demolish and construct a
modern petrol station and shopping complex and it could not reasonably do so
without obtaining possession of the premises, and that thereafter, the
respondent intended to occupy the suit land for a period of more than one year.
The
appellant in response filed a reference with the Business Premises Tribunal
under section 6 of the Act. Before commencement of the hearing of the
reference, the appellant filed an application under section 12(1) (j) of the Act
for the respondent to give discovery of the documents which were in its
possession or power relating to any matter in question on the reference, which
application was granted. The appellant further sought for the termination to be
set aside. The Tribunal Found that the respondent had shown an intention to
reconstruct the premises as per the building plans produced by its architect
and allowed the notice to take effect, thereby prompting the Appeal.
The
appeal was premised mainly on the ground that the Tribunal was wrong in finding
that the respondent had a clear and settled intention to develop the premises;
that what was expressed by the respondent was mere hope, rather than reasonable
prospect of carrying out the intention.
Relying
on the case of Auto Engineering Ltd v
Gonella and another ((1978) KLR 248), the appellant averred that ‘a firm and
settled intention’ must be established on the part of the respondent. Secondly,
that the Tribunal prejudiced the appellant when it ordered the respondent to
produce only such documents that it wished to rely on as production of
documents is meant for disclosure of all documents in a party’s possession;
limiting discovery prejudiced the appellant. The respondent opposed the appeal
on grounds that the appellant had not demonstrated that obtaining approvals
from NEMA or under the Petroleum Act was an insurmountable task. Further, that
the respondent had established a firm and settled intention to construct a
‘modern petrol station and shopping complex.
The
High Court held that the Tribunal, in ordering the landlord to make discovery
of documents which it wished to rely on in the suit, erred by Limiting the
scope of the application of the Rule on discovery of documents. However, the
appellant failed to demonstrate how the failure to produce the documents
prejudiced its case; that the documents sought did not go to the crux of the
issue before the court and the appellant was merely fishing for evidence. On the
issue as to whether the respondent had established a firm and settled intention
to develop the premises, the High Court noted that the respondent had produced
approved architectural drawings, act of quantities for the intended project,
building plans for the construction of a modern petrol station and shopping
complex, approved by the City Council of Nairobi, whose extension would not be
insurmountable.
The
court also noted that no change of user was necessary from the Commissioner of
Lands to develop the project and that there was no evidence that the respondent
was in breach of the petroleum Act considering that the premises were already
in use for sale of petroleum products. Thus, the Court found that the
respondent did indeed demonstrate a firm and settled intention to carry out the
intended reconstruction.
An
appeal lies from the decision of the Tribunal to the High Court. The
jurisdiction of the High Court in controlled tenancies is appellate, not
original. This was emphasized in the case of Mark Wachira and others v Kenya Road Services Ltd (Nairobi HCC
(ELC) number 1841 of 2007), in which the applicant, Kenya Road Services Ltd,
sought to have the orders for injunction previously issued by the Court set
aside on grounds that the plaintiffs/respondents had failed to pay rent to the
applicant and that the applicant intended to develop the premises and a
development plan had already been approved. It was the applicant’s case that
the respondents were not keen to prosecute the references that they had filed
with the Tribunal. The application was opposed on grounds that the Tribunal had
not ordered the respondents to pay rent over the suit premises but that it
would establish how much the applicant would be entitled to in rent. Further,
that the respondents closed their case and it was the applicant who -was yet to
call a witness to enable the tribunal makes a determination. Further, that the
High Court’s jurisdiction in controlled tenancies is limited to appellate
jurisdiction; that it is the Tribunal that has original jurisdiction to hear
tenant’s complaints and make a determination.
The
Court noted that the proceedings were still pending before the Tribunal and
were yet to be adjudicated upon by the Tribunal. It was the applicant that was
dragging the conclusion of the Tribunal proceedings. The application for
setting aside restraining orders was dismissed with costs. Further, in the case
of Alex Kadenge Mwendwa v Grace Wangari
Ndikimi and others (Nairobi High Court civil case number 2974 of 1991), the
High Court was emphatic that the primary jurisdiction to resolve controlled
tenancy dispute vests with the Business Premises Tribunal. That it was
incompetent of the plaintiff to decline to present himself to the jurisdiction
of the Tribunal, citing as a justification, the fact that the High Court is
vested with superior powers. When the deceased tenant submitted a business
premises dispute before the Tribunal, he thereby activated a legal process
which required the plaintiff to deal in the first place with that Tribunal, and
not to leapfrog to the High Court.
The
decision of the High Court in matters of controlled tenancy is final, and the
Court of Appeal lacks jurisdiction to entertain an appeal in such matter. The
Court of Appeal, for instance, dismissed the case of David Thiongo T/A Welcome General Stores v Market Fancy Emporiumon,
inter alia, ground that section 15(4)
of the Act rendered the High Court decision in the matter of controlled
tenancy, final, thus the Court of Appeal lacked jurisdiction to entertain the
appeal.
3.
THE LAND ACQUISITION COMPENSATION
TRIBUNAL
All
land in Kenya may be compulsorily acquired by the Government for public use in
exercise of the power of eminent domain. However, upon such acquisition, the
title or interest holder thereof is entitled to prompt payment in full and
access to court process if aggrieved with the compensation process. The
Tribunal that formerly adjudicated over the disputes relating to land
compulsorily acquired is the Land Acquisition and Compensation Tribunal.
Under
the now repealed Land Acquisition Act (Chapter 295, Laws of Kenya), when the
Cabinet Secretary for Lands identifies suitable land for compulsory acquisition,
the Cabinet Secretary could direct the Commissioner for Lands to compulsorily
acquire the land. The Commissioner then published in the Kenya Gazette a notice of intention to acquire the land and to
serve every person who appeared to the Commissioner to be interested in the
land with the notice. The Commissioner for Lands was required to mark and measure
the land identified for compulsory acquisition and to cause a plan prepared for
the land. The Commissioner then appointed a date, at least 21 days after the
publication of the acquisition notice to all interested parties, to hear claims
to compensation by persons interested in the land.
This
process of determining claims is called an inquiry and it is a legal
requirement that an inquiry notice be published at least fifteen days before the
inquiry is conducted, and served on every person who appears to be interested
in the acquired land. In determining claims, the Commissioner took into account
the proof of Claims during the inquiry, and made an award to each person whom
he had determined to be interested in the land. The Commissioner then served
each interested party with a notice of award and an offer for compensation.
However,
not all interested parties to land compulsorily acquired are satisfied with the
award of compensation. The law recognized this reality and in section 29
thereof, established the Land Acquisition Compensation Tribunal comprising an
advocate as the chairman, two registered valuers, a prominent businessman and a
prominent farmer, all appointed by the Minister for Lands. The Tribunal heard
appeals from the decision of the Commissioner for Lands by a person interested
in land compulsorily acquired. An appeal lied to the High Court from the
decision of the Tribunal as of right, and to the Court of Appeal on a question
of law only.
Some
of the factors that the Tribunal took into account in determining the propriety
of the award of compensation by the Commissioner for Lands include the
developments made on the land; valuation report relied upon by the Commissioner
and the competencies of the valuers; comparable pieces of land relied upon by
the Commissioner; and the extent to which the acquisition process affected the
developments made on the land including any lost profits.
In
the case of Samwel Wainaina Muiruri v
Commissioner of Lands (LACT case number 20 of 2009),the Commissioner of
Lands, vide Gazette Notices numbers
6034 and 6035 dated 11 July 2008, sought to compulsorily acquire part of Plot
L.R. number 209/1534 registered in the name of the applicant, Samuel Wainaina Muiruri.
The portion of land that was meant to he acquired measured 0.0716 ha, which the
Commissioner of Lands assessed at Kshs 16,525,525.Valuation was undertaken on
14 October 2008 by Mrs. T. W Kimundiu and Mr. B.N. Nzau, holders of Bachelor of
Economics degrees in Lands Economics who described the acquired land as
measuring 0.016 ha and as a leasehold interest without encumbrances. According
to the applicant, the acquired land had been developed and it hosted a big
animal feed shop, being Pangani Animal Feeds. Acquisition would therefore lead
to demolition of the building and relocation of the same. The applicant further
contended that he required a period of 18 months to complete the process of the
approval of the building plans and sought compensation for the period. Thirdly,
the applicant contended that he had a loan with Standard Chartered Bank and
made a monthly repayment of Kshs 810,000 towards the loan repayment and
interest. The demolition would affect the repayment of the said loan for 18
months. The applicant therefore sought compensation of KShs 45,532,000.
The
Commissioner of Lands valued the acquired land at KShs 9,250,000, which it
stated was arrived at after analyzing four comparables. The Commissioner of
Lands then applied replacement costs of the acquired developments, costs of
alternative accommodation and 15% statutory compensation, thereby arriving at a
total compensation of KShs 16,525,500.
According to the Commissioner of Lands, the rates applied by the applicant were
not supported by real sales, thus the proposed rates could not therefore be
adopted.
The
Tribunal held that firstly, because the Commissioner of Lands was guided by
four comparable sales done before acquisition date, the values applied by the
Commissioner were values of actual property sold around the period of
gazettement, thus relevant, unlike the applicant's values that were not based
on any actual sale. The location of the applicant's comparables was also
different from that of the land in issue. The Tribunal thus found that the
valuation of land given by the Commissioner of Lands at KShs 9,250,000 was
sufficient valuation for the land. Secondly, on the value of improvement, the
Tribunal held that the Commissioner used the applicable rate of construction
cost of KShs 1,200 per foot used by the society of valuers, unlike the
applicant who did not lay basis for the rate of KShs 40,000 per square metre
that he proposed.
The
Tribunal therefore confirmed value of KShs 4,500,000 assessed by the
Commissioner as the value of improvement of the acquired land. Thirdly, on the
claim for loss of profits, the Tribunal found that the authenticity of the
accounts relied upon by the applicant was doubtful and that the business of
Pangani Animal Feeds needed not to be moved from the acquired land. Thus, the
Tribunal held that the applicant failed to lay a basis for this claim.
Fourthly, the Tribunal found that the sum 0fKShs 720,000 awarded by the
Commissioner of Lands for alternative accommodation for 15 months was
sufficient compensation for inconveniences suffered by the applicant and
attendant costs of his relocation.
The
applicant’s claim for compensation on the basis that he was financing a loan
with Standard Chartered Bank by using the acquired land as collateral was found
by the Tribunal to be not a proper claim that can be made under the Land
Acquisition Act. The Tribunal therefore confirmed the award of the Commissioner
of Lands for KShs 16,525,500 and any statutory payments that might be due from
the date of the award.
In the case of Josephat
Ndung’u Gachchio v the Commissioner of
Lands (LACT case number 34 of 2009),
the Commissioner of Lands, on 11 July 2008, compulsorily acquired L.R. number
24052/ 2 measuring 0.0272 ha, owned by the applicant. The Commissioner of Lands
valued the land at KShs 656,880, based on valuation by T.W. Kimondiu and B.M.
Nzau Valuers. The land situated along Thika Road, was a leasehold property held
for 99 years with effect from 1 November 1998 at an annual rental of Kshs 2,635
and was connected with electricity and water, though it had no central sewerage
system. The applicant disputed the assessment of the acquired land by the
Commissioner of Lands, and claimed KShs 2,563,220 as the total value of the
land, improvements and incurred project costs. The applicant relied on
valuation report prepared by M.S. Kibui 8c Associates Valuers.
In
its ruling, the Tribunal noted that the acquired portion of the land measured
0.0272 ha whereas the entire land measured over 2km from the main Thika Road
and that, unlike the applicant, the Commissioner had used comparable sales to
arrive at a compensation of KShs 656,880. On the claim for severance pay, the
Tribunal ruled that the acquired portion of the land was too small as to
compromise any intended user of the land, thus unsupported. The Tribunal thus
confirmed the assessment of compensation by the Commissioner of Lands.
Lastly,
in the case of Petty Wanjiku Kigwe v the
Commissioner of Lands (LACT number 36 of 2009), the Commissioner of Lands,
on July 2008 acquired Plot L.R. number 17881 measuring 0.0274 ha registered in
the name of one Paul Gathecha Kigwe. The acquired portion of the land was
assessed at KShs 339,250 based on a valuation by B.M. Nzau and T.W. Kimondiu
Valuers. The applicant opposed the compensation by the Commissioner of Lands on
grounds that he failed to comply with section 9(3)(b) of the Land Acquisition Act;
that the award was manifestly low and failed to take into account the real
value of the land acquired. The Commissioner of Lands opposed the application
on grounds that the comparable sales relied upon by the applicant occurred
after the date of gazettement and the comparable land is far removed from the
situation of the disputed land. The Tribunal ruled that all the transfers
exhibited by the applicant occurred after the acquisition and could thus not
assist the Tribunal, while those relied upon by the Commissioner occurred
before the commencement of the acquisition process.
The
Tribunal thus confirmed the award by the Commissioner of Lands. The power to
compulsorily acquire land now vests with the National Land Commission by dint
of the provisions of Part VIII of the Land Act. The powers previously exercised
by the Minister responsible for Land and the Commissioner for Lands under the
Land Acquisition (Repealed) Act are now exercised by the National Land
Commission. Until the Cabinet Secretary Land, Housing and Urban Development
gazettes new rules to regulate the procedure for acquisition, the previous
procedural guidelines exercised under the Land Acquisition (Repealed) Act can
help guide the National Land Commission in exercising their power under Part
VIII of the Land Act.
CONCLUSION
Disputes
relating to the management of land and the environment are adjudicated upon by
a number of tribunals, including the National Environment Tribunal, Business
Premises Tribunal and Land Acquisition Compensation Tribunal. The National
Environment Tribunal hears appeals from decisions of the Director General, NEMA
and/ or Committees of NEMA. Most common environmental disputes handled by the
Tribunal seek to challenge approvals of EIA project report vis-a-vis the need
for an EIA study before undertaking a development with a view to compel the
requirement of greater public participation before the development is
undertaken.
EIA
is a systematic examination conducted to determine whether or not a project or
activity will have any adverse effects on the environment. The developer is
required to prepare a project report and submit to NEMA for approval which then
issues a licence. If a party is aggrieved with the approval or issuance of the
licence by NEMA, and files an appeal with the Tribunal, the Tribunal may issue a
stop order to stay the development until the appeal is determined. A full EIA
study may then be directed by the Tribunal. Business Premises Tribunal
adjudicates over disputes relating to controlled tenancies. A controlled
tenancy is a tenancy of a shop, hotel or catering establishment that is either
not reduced in writing, or if it is in writing, is for a period not exceeding
five years, is determinable within five years from commencement thereof, or is
specified by the Minister (now Cabinet Secretary) to be a controlled tenancy.
Controlled
tenancy is determinable or capable of alteration by issuing at least two
months’ notice in a prescribed form. The tenancy notice must specify the
grounds upon which the issuing party is seeking termination, alternation or
reassessment of a term of the tenancy, and must notify the receiving party to
notify the issuing party in writing, within one month of receiving the notice,
whether or not he agrees to comply with the notice; there must be a firm and
settled intention by the issuing party to undertake the grounds specified in the
termination notice. A party receiving the termination notice is entitled to
make a reference to the Business Premises Tribunal, before expiry of the notice
period, if he wishes to contest the termination.
An
appeal lied to the High Court from the Tribunal and such appeal is final. The
Land Acquisition and Compensation Tribunal adjudicated over disputes relating
to the decision of the Commissioner of Lands in respect of land compulsorily
acquired. An appeal lied to the High Court from the decision of the Tribunal as
of right, and to the Court of Appeal on a question of law only. The Tribunal
took into account the Following factors in determining the propriety of the
award of compensation by the Commissioner for Lands, to wit: the developments
made on the land; valuation report relied upon by the Commissioner and the
competencies of the Valuers; comparable pieces of land relied upon by the
Commissioner; and the extent to which the acquisition process has affected the
developments made on the land including any lost profits.
https://www.academia.edu/23353626/REGULATION_OF_LEASEHOLDS_AND_FREEHOLDS_IN_KENYA
http://obiterj.blogspot.com/2011/09/english-land-law-no1-estates-in-land.html#:~:text=There%20were%20three%20estates%20of,De%20Donis%20Conditionalibus%20in%
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http://41.204.161.209/bitstream/handle/11295/29862/Siganga%20-%20Lease%20And%20Licence%20Administration%20By%20A%20Public%20Corporation%20In%20Keny
