7.

Land Law
‘Nothing strikes the imagination and engages the affections of mankind, as the
right of property, or that sole and despotic dominion which one man claim
and exercises over the external things of the world in total exclusion of the
right of another individual in the universe.’
– William Blackstone.

Introduction to land law

In law, it is normal to refer to land law as ‘property law.’ This however may be
misleading: the law is recognising new forms of property such as intangible forms of
property such as intellectual property that covers such things as copyright, patents and
trademarks. Land law has also variously been called ‘real estate’ law – realty – but
this is equally misleading, because some rights and interests in land recognised at law
are not categorised as ‘real estate’; or as far as some relations are concerned, such as
partnerships, even real estate may be treated as personal estate.

While we shall stick to the term ‘land law’, it is imperative to always bear in mind
that land law is largely concerned with property rights and interests in land. To
properly understand and to introduce the course on land law, a primary understanding
of the concept of property is necessary.

What is property?
At its widest, property has been defined as an interest against which a right flows.
The right of property can be explained by the Roman concept of dominion represented
by the Latin maxim usus abusus fructus, that is when one has property in something,
he has the right of use, abuse and to enjoy the fruits of it.

In law, property rights can be represented as below.

Property

Real Property Personal property

Chattels

Chattels Real

Choses in action Choses in possession

Classification of property
As shown in the diagram on the previous page, property rights are classified into: –

1. Real property
This refers to immovable property and the rights emanating from such
property, e.g., land, buildings, minerals, rents.
2. Personal property
This is any property other than real property, i.e., movable property. Another
term for personal property is chattels. Personal property is in turn divided into
several categories, as enumerated below.
a) Chattels real
This refers to rights emanating from leaseholds in land.
b) Chattels personal
These are divided into:
i) Choses in action
This refers to rights emanating from intangible property such as
copyrights, patents, shares and trademarks.
ii) Choses in possession
This refers to tangible property, e.g., cars, furniture, stereos,
books etc.
These classifications are based on Roman concepts of property, from which much of
English common law principles of law governing property are derived. As can be seen
from the above, property, in legal terms, can be said to be a bundle of rights relative
to the property item itself. This is well expressed by the following quotation by a
leading scholar of law:
‘Because the legal right is separate from the thing which is the object of that
right, it is possible for all kinds of legal relationships between the property –
right and the property object to exist.’1

It is important for property rights to be defined in law as this is the basis of a capitalist
economy. To get a loan from a financing institution, for instance, one requires some
collateral. Only the owner of the property, whether it is a car, land, or whatever other
security offered, can convey such collateral for a loan.

Ownership and possession

It must be borne in mind that property is a corollary of ownership, which must be
distinguished from possession. Ownership is a matter of law, possession is a matter of
fact.

Ownership means the relation between a person and an object forming the subject
matter of his ownership. It consists of rights a person has against the world; i.e., rights
in rem. A person is the owner of property if he has the ultimate legal right over its use
and disposal.

Elements of ownership
1. The owner has the right to possess the thing he owns.
2. The owner has the right to use, not to use and to abuse the thing he owns.
3. The owner has the right to consume, destroy or alienate the thing.

1
Phil Harris, An Introduction to Law.
 4. Ownership endures forever.

Ownership may be acquired in the following ways:

1. Originally, where a person creates something new or acquires something
which no one else claims.
2. Derivately, this is acquisition through purchase.
3. Succession, where property is passed under a will.
4. Possession, where one has physical control over an object and no one else
claims such property.

Possession
Possession simply means having custody of a thing. There is a legal maxim to the
effect that ‘possession is nine points in law.’ This means that possession is the best
evidence of ownership. A person in possession of something does not have to prove
that he is the owner; it is up to the person disputing such possession who must
produce evidence that he, rather than the person in possession, is the true owner of the
object.

What is land?
In law, land is more than the physical soil. The basic legal conception of land can be
represented by two Latin maxims;
1. cuius eius solum est usque ad coelum et ad inferos, i.e., he who owns land,
owns everything extending to the heavens and the depths of the earth; and
2. quicquid plantatur solo, solo credit i.e., whatever is attached to the ground
becomes a part of it.

Property rights in land

As will be appreciated, property rights in land in Kenya are governed for the most part
by statutory law; and this incorporates many tenets known to English common law
and equity. The basis of modern-day land law in Kenya are the Crown Lands
Ordinances of 1902 and 1915, which extinguished historical and cultural claims to
land and vested all such land in the sovereign – the British Crown. After
independence, the place of the British monarch in land relations was taken by the
President.2

Land laws in Kenya

Land law in Kenya is governed by many different statutes. Briefly, these are:
1. The Constitution of Kenya 2010; which sets out the principles of land and
environmental policy in Kenya as well as designating the status of land as
public, private or community land. It also establishes the National Land
Commission.3
2
It should be noted that under the previous Constitution the President was constituted the ultimate heir
of all land in Kenya, with vast powers over land. Under Section 3 of the Government Lands Act, for
instance, the President can make grants or dispositions of any estate, interests or rights in unalienated
government land. No considerations are to be taken into account – this is to blame for the phenomenon
of land grabbing. The new Constitution designates the people of Kenya the owners of land, and the
National Land Commission established under Article 67 is vested with powers to manage land.
3
The Constitution of Kenya, 2010, Article 68 requires Parliament to ‘revise, consolidate and
rationalise’ existing land laws, so that the laws described hereunder may well be living on borrowed
time. That notwithstanding, S7 of the Sixth Schedule to the Constitution provides that all laws in force
prior to the enactment of the new Constitution shall remain in force until amendments are done by
 2. The Indian Transfer of Property Act, 1882, which applies in Kenya by
virtue of the Judicature Act, 1967, Cap 8 of the Laws of Kenya. It can be said
to be the most important of all such ‘received laws’;
3. The Government Lands Act, Cap 280;
4. The Registration of Titles Act, Cap 281;
5. The Land Titles Act, Cap 282;
6. The Registration of Documents Act, Cap 285; and
7. The Registered Land Act, Cap 300.

The above can be broadly classified into three broad functional categories setting out:
1. Substantive land law; this refers to the provisions of the Indian Transfer of
Property Act and the Registered Land Act; these Acts in general codify the
common law conception of ownership and the attendant dominion over
property. Section 88 of the ITPA, for instance, prohibits any purported
limitation on the power of disposition and prohibits restraining powers of use
against a landowner.
Section 27 (a) of the RLA on its part provides that ‘… the registration of a
person as the proprietor of land vests in that person the absolute ownership of
that land together with all rights and privileges belonging or appurtenant
thereto; while Section 27 (b) vests equivalent rights in respect of leasehold
title.
2. Conveyancing systems; these are created under the Government Lands Act
and the Land Titles Act,4 the Registration of Titles Act and the Registered
Land Act.
3. Registration systems of land; there are five different registration systems of
land and are created under the Government Lands Act, the Registration of
Titles Act, the Land Titles Act, the Registration of Documents Act5 and the
Registered Land Act.

The three broad categories of property rights in land recognised at law are:
1. Estates;
2. Encumbrances; and
3. Servitudes.

1. Estates
What is an estate?
It was explained in Walsingham’s case, decided in the sixteenth century, as
‘… the land is one thing, and the estate in the land is another thing, for an
estate in land is a time in the land, or land for a time…’

From the above, an estate in land has another dimension – that of time; in other words,
it can be divided into amounts of time. The legal term used here is tenure, defined as

Parliament, provided that the law is interpreted consistently with the spirit and letter of the new
Constitution. The old Constitution constituted the President the ultimate heir of all land in Kenya, and
in its S116 vested trust lands – what were native reserves subject to customary law in the colonial
period in county councils (until it is alienated).
4
The conveyancing system under these two statutes is the same.
5
Under the Registration of Documents Act, Cap 285, not only documents relating to land are created
registrable; other documents such as deed polls for name changing have a registration system created
for them. Thus, some legal theorists argue that it is not strictly speaking, a land registration system.
land holding based on specified conditions (normally, time). The concept of tenure
arose after the 1066 Norman conquest of England when the King made himself the
sole owner of all land in England, and it is the basis of the estate.

An interest in land is a right over someone else’s land and though it does not allow
one to occupy the land itself, they do entitle one to restrict the estate owner in his
occupation and use of it.

Therefore, an estate entitles the holder of it – the estate – to the management and
enjoyment of the land whereas an interest entitles someone else to a specific right
over this right of the estate holder to such use.

Types of estate
The primary estate in land is the fee simple otherwise known as freehold. As a result
of the common law doctrine that the sovereign is the ultimate heir of all land, it
technically, is a tenancy. An owner of a fee simple in land enjoys such land in
succession for as long as there are heirs to whom the estate may pass; where there are
no such heirs, the estate reverts to the state through the doctrine of escheat. The
secondary estate in land is the leasehold. In this course, we shall be concerned with
the leasehold as it is most relevant to commercial enterprise.

Leasehold interest
A leasehold interest is a secondary interest in land; it may be created by the holder of
a primary interest in land. The simplest way of this is by an owner of land
constructing rental buildings; the tenants are holders of secondary interests in such
land.
The term lease refers to the relationship that exists between a landlord and a tenant. In
this context, however, in ordinary parlance it is common to talk of a tenancy. It is also
common to talk of the ‘law of leases’ or the ‘law of landlord and tenant’ when
referring to the law governing this relationship, rather than land law. A ‘lease’ may
also refer to the contractual document in which the relationship is reduced to.

Essentials of a lease
1. There must be a right of exclusive possession, which is described as a right
unattended by a simultaneous right of any other person in respect of the same
subject matter except as under express or implied terms; even the landlord
cannot re-enter the demised premises. In Hecht vs Morgan, an agreement
described a grantee as ‘… a paying guest … at a monthly price of Sh 600
payable in advance; the amount to include early morning tea, electricity, water
and part service and terminable by 4 days’ notice before the end of the month
on either side.’ The court held that although it appeared that the intention of
the grantor was to create a license, on the construction of the tenancy, and in
particular, the right of exclusive possession showed that what was created was
a lease.

2. The grant must be of defined premises; where the premises cannot be

ascertained, such that there is no definite premises, there cannot be a lease.
Case: Heptula vs Thakore, where the premises were described as ‘all the
ground floor of the said premises with the exception of one shop window and
space and which is at present occupied by the lessee’s counter on the ground
 floor and at present occupied by the sub – lease forming part of the building
erected on the same piece of land.’ The court held that the intended demise of
premises failed as the description was not capable of creating any recognisable
frontier.

3. A lease must be for a period certain or capable of being ascertained. This lies
at the heart and soul of a lease. A lease must commence at and subsist for a
defined period of time. Such period need not be expressly stated; it must be
capable of being ascertained. Where a lease fails to state the period or the
period cannot be ascertained, it is termed an ‘imperfect lease.’ In Lace v
Chandler, a lease was made ‘for the duration for the war.’ The court held that
this was an imperfect lease as the period could not be ascertained.

Formalities for the creation of a lease

1. A lease as with other transactions in land, under the Law of Contract Act need
be in or evidenced in writing. The exception to this is where there is part
performance through possession of the leased premises.

2. Registration. Some leases require registration under the different statutes

which create separate registration regimes. For instance, under Section 47 of
the RLA, leases running for a period of more than two years or for the life of
the lessor or lessee, or a lease which contains an option for the lessee to extend
the term of the lease and the combined period exceeds two years must be
registered at the Lands Office.

3. Notice terminating a lease must be in writing and signed by the party

tendering the notice.

Categories of leases recognised in Kenya

There are a number of leases that are capable of constituting a landlord/ tenant
relationship.

1. Fixed period lease.

2. Periodic lease.
3. Tenancy at will
4. Tenancy at sufferance.

1. Fixed period lease. This is the most common lease or tenancy; the
distinguishing feature here is that the term for which the lease is made is fixed
in the lease itself. Although a fixed period lease need not vest in possession
immediately, the interest must vest immediately or in such a manner as not to
offend the rule against perpetuities. A perpetuity arises out of a land owner’s
deliberate action to create a future interest in land by postponing the time
when such interest is to vest. So for instance, in the Registered Lands Act,
under Section 51 a lease must take effect not more than 21 years after being
made.

2. Periodic leases. A periodic lease is one which continues indefinitely from

periods of one year or less until determined by proper notice on the part of
either party. In cases where the parties’ intention is to create a fixed period
 lease but the formalities for the creation of such leases are not followed, the
resulting lease will be a periodic tenancy/ lease. Such situations arise under the
ITPA, under S 106 read with S 116.

Section 106 of the ITPA provides:

‘In the absence of a contract or local usage to the contrary, a lease for
immovable property for agricultural or manufacturing purposes shall be
deemed to be a lease from year to year terminable … by six months’ notice
expiring with the end of a year of the tenancy and a lease for any other
purpose shall be deemed a lease for month to month terminable … by fifteen
days’ notice expiring with the end of a month of tenancy.’

Section 116 of the ITPA provides that if a lessee of property remains in

possession thereof after the determination of a lease and the lessor accepts rent
or otherwise assents to the lessee's continued possession, the lease in the
absence of an agreement to the contrary shall be renewed from year to year or
from month to month according to the purpose for which the property is leased
as specified in Section 106.’

On its part, the RLA in Section 3 defines a periodic lease as ‘… a tenancy

from year to year, half year to half year, quarter to quarter, month to month,
week to week or the like.’

Under the RLA, periodic tenancies arise under Section 46.

Section 46 provides generally that where the term is not specified and no
provision is made giving notice to determine the tenancy, such a tenancy is a
periodic tenancy; where a landlord permits a tenant to exclusive possession
without any agreement in writing, such occupation constitutes a periodic
tenancy and that the period of a periodic tenancy created by the section shall
be the period by reference to which rent is paid.

The tenancy is determinable by notice the length of which shall be not less
than the rent period.

The RLA also creates a tenancy by holding over: Section 52 constitutes a

tenant who continues to occupy demised premises after the lease period is over
a periodic tenancy.

3. Tenancy at will. These arises where a tenant occupies property as a tenant on

terms that either party may determine the relationship at any time. It has been
described as the most uncertain of all the tenancies because it confers no
certain or sure estate. Such a tenancy may also end where one party commits
an act inconsistent with the tenancy or upon death of a party.

4. Tenancy at sufferance. A tenancy at sufferance arises in a situation where

after a fixed period, a tenant holds over without the landlord’s permission – in
other words, he enters by lawful title but remains without any title at all.
Although not a trespasser, a tenant at sufferance may be ejected without
 notice. Where a landlord accepts rent from a tenant at sufferance, the tenancy
automatically becomes a periodic tenancy.

Rights and obligation of parties to a landlord – tenant relationship

Ordinarily, parties’ rights under a lease will be set out in the contractual document.
However, where parties do not set these out, the ITPA and the RLA imply these
duties. In practice, the rights and duties are similar: this is because in Kenya, it is
common practice for land transactions to be stated to be governed by the Law
Society’s terms and conditions which are more or less similar.

Tenant’s obligations
1. He must pay rent as agreed.
2. The rent is payable even when the house is not in use, i.e., the tenant is
keeping house. If the tenant travels, he must still pay rent if the lease subsists.
3. He must pay all the rates and land taxes, unless this duty is imposed on the
landlord by law.
4. Tenant must not waste the property and keep it in good repair; except for
‘ordinary wear and tear.’
5. The tenant shall not construct permanent structures on the property, unless
expressly or impliedly he has permission to do so. If he so constructs, then he
must remove such fixtures at his cost and repair any damage caused by such
removal at the end of the tenancy.

Landlord’s obligations
1. He must have capacity to grant the lease.
2. He should ensure the tenant’s quiet enjoyment and possession of the demised
premises.
3. He must disclose to the tenant any material defects on the property; and ensure
the property is fit for human habitation.
4. He must undertake all external repairs of the premises.
5. He must never unfairly increase rent and should act strictly in accordance with
the lease agreement.6
6. He must deliver possession to the tenant.

Where two or more persons own have a simultaneous ownership or possession of land
they are said to have concurrent ownership or co-ownership.
The two forms of co-ownership are:
1. Joint ownership and
2. Ownership in common.

Joint ownership
Also known as a joint tenancy, it arises where persons own property jointly as tenants.
It is characterised by the ‘four unities’:

6
In cases of ‘rent restriction’; that is to say, where the rent is less than Ksh 2 500 in cases of residential
tenancy or in cases of commercial tenancy where the rent is less than Ksh 5 000, a landlord cannot
increase rent beyond these sums and can only do so with the permission of the relevant Tribunal: in the
case of residential tenancies, the Rent Restriction Act, and in the case of commercial tenancies the
Landlord and Tenant (Shops, Hotels and Catering Establishments) Act. NB: This may change
following the Cabinet’s approval of a proposal to increase this to Ksh 15 000.
 a) Unity of possession. Each proprietor is entitled to possession of every
portion and the whole of the land even though there is no subdivision
of the land.
b) Unity of interest. The interest held by each tenant is the same: in case
one wants to sell, there must be the consent of all the parties.
c) Unity of title. The title of the joint tenants must have been created by
the same instrument, and any transaction must include all the owners.
d) Unity of time. The interests of all the parties must have arisen at the
same time.

Ownership in common
In this type of co-ownership, each party has a pre – determined and fixed share in the
property. Such share will not be affected by death as the share will simply pass on to
the dependants of the deceased. In this kind of ownership, a party may sell his share
or otherwise deal with it without the consent of his co-owner. The only thing in
common in this type of ownership is possession.
This type of ownership is more preferred to joint ownership.

Termination of co-ownership
1. By sale. Where co-owners sell the land the co-ownership ceases and each
party is entitled to the appropriate share.
2. By partition. Where property is partitioned, each co-owner becomes sole
owner of his share.
3. By severance. In cases of joint tenancy, each tenant has an equal share to that
of his co-owner. Where the property is divided into equal shares, the joint
tenancy is divided into a tenancy in common.
4. By merger. In the case of joint tenancy, this is where the tenancy is terminated
and the property merges into a single and inseparable piece owned by the
surviving person.

2. Encumbrances
These arise out of credit arrangements. Again, they arose as an adjunct to the free –
enterprise system of economic organisation, to facilitate the development of
enterprise. At common law, encumbrances were mortgages and charges. It must be
noted here that the encumbrance is used in reference to the borrower i.e., the owner of
land. As to the lender, they are proprietary rights.
These are mainly mortgages and charges.

A mortgage is a conveyance of land (or assignment of property) as security for the

payment of a debt. There exists a condition that the mortgagor will recover his land or
property upon repayment of the debt. This right of recovery is known as the
mortgagor’s equitable right of redemption.

A charge confers rights to the chargee, to enable him to recover his money and
interest, over the land as security without the land being conveyed or assigned to the
chargee.

This difference can be explained by the simple statements:

In a mortgage, the mortgagor is saying: ‘Take my land until I pay you’; whereas in a
charge, the chargor is saying: ‘Give me the money, if I fail to pay you, take my land.’
In Kenyan law, under the ITPA, both charges and mortgages can be created; whereas
under the RLA, only charges can be created.

3. Servitudes
These are rights conferred to as person over another person’s land and will only be
valid if made in accordance with the law. They are:
a. Easements; e.g., rights of way.
b. Restrictive covenants; and
c. Profits.
Easements and restrictive covenants run with the land, such rights are not in respect of
the exclusive use of another person’s land as in the case of leases, but only for a part
thereof; e.g., rights of way, can be exercised concurrently with other rights.

Profits, also known as profits a prendre, is based on equity and allows a third party to
collect things such as wild fruit, or graze cattle on another’s land. Collection of profits
is different from trespassing or theft because whatever is collected grows naturally
without the owner’s effort.