LAW OF PROPERTY IN LAND

LAW OF PROPERTY
IN LAND 1 (LPL
207)
CONCEPT OF
PROPERTY/OWNERSHIP/POSSESSION/TITLE.
WHAT IS PROPERTY?
appropriation of an object by the individual and the
acceptance of this appropriation on the part of the rest of the
society. (Bhalla)
An institution which regulates
individuals with respect to things.
relationships
between
A right over a determinate thing (defined).

It pre-supposes a realm of private freedom (exclusivity).
PROPERTY RIGHTS
Property rights cover interest over corporeal (tangible/physical

objects (land)) and incorporeal (intangible subject of a rightabstract) .
Rights of free use;
Right of enjoyment;
Right of disposal of acquisition/ alienation.
ATTRIBUTES OF PROPERTY RIGHTS
economic, sentimental or intrinsic value (anthropocentric and

eco-centric-in environmental field)
Transferability/alienation
Survivorship
OWNERSHIP
A right fostered and protected by law for the exclusive use,

enjoyment and disposal of a thing.
Position which the owner enjoys in the control or use of a thing
to the exclusion of others.
Legally supported right to use a definite thing for more or less
definite purposes and for definite or indefinite time.
RIGHTS OF OWNERSHIP
Ownership is a unitary right.

Concept of bundle of rights do not interfere with ownership.
Proprietary rights-rights which the owner grants to others
without losing his general right of ownership.
SPECIAL CHARACTERISTICS OF THE RIGHT

OF AN OWNER
POSSESSION
De facto control of a thing.

The controller, desires or intends to keep the thing for himself to
the exclusion of others.
In case of a dispute the law tries to find out where the original
control or possession lies.
A person who has a just possession of the land is the possessor of
all things on the land irrespective of his knowledge of them.
POSSESSION-CONTD
ELWES VS. BRIGGS GAS COMPANY (1886) 33 CH.D 562.

Servant of the lessor discovered a pre-historic ship/boat
embedded in the clay some feet below the surface. Dispute arose
about ownership.
Held, the plaintiff was in lawful possession of the property, the
ground and everything that lay beneath the surface down to the
centre of the earth
POSSESSION-CNTD
SOUTH STAFFORDSHIRE WATER COMPANY VS. SHARMAN
(1896) 2 Q.B.44.
Application of the notion of de facto control
. where a person has possession of house or land, with a
manifest intention to exercise control over it and the things which
may be upon or in it, then, if something is found on that land,
whether by an employee of the owner or by a stranger, the
presumption is that the possession of that thing is in the owner of
the locus quo.
THEORIES OF POSSESSION
Possession exists when the possessor believe himself to be the

rightful owner of the object and intends to keep it against others.
(Savigny).
One who has possession over a thing looks like a rightful owner
until a superior title is shown to exist, that is unless it is denied to
him by rules of law.(Ihering)
TITLE
.....Legal authority to vindicate possessory rights as against

strangers and to avail oneself of other rights to control the use,
exploitation and disposition of land.
Under common law title is derived from physical possessionadverse possession.
The validity of title to land under statutes is derived from the fact
of registration. This is however subject to rectification in case of
mistake or irregularity.
TITLE -CONTD
Statutory registration of interests in land provides not a

system of registration of title but a system of title by
registration. (Gray & Gray, 2009)
Registered title.
Unregistered title.
LAW OF PROPERTY
LEGAL CONCEPTION OF LAND
DEFINITION OF LAND
Article 260 of the Constitution of Kenya;

(a) The surface of the earth and the subsurface rock;
(b) Any body of water on or under the surface;
(c) Marine waters in the territorial sea and exclusive economic zone;
(d) Natural resources completely contained on or under the surface;
and
(e) The airspace above the surface
DEFINITION OF LAND..... CONTD
Land comprises of corporeal and incorporeal hereditaments.

Corporeal hereditaments physical and tangible characteristics of
land. Covering the earth surface (solum), things attached to the
ground (buildings, subjacent minerals) and subjacent airspace.
Incorporeal hereditaments-intangible rights held over landeasements, profit a prendre, franchise
DEFINITION OF LAND CONTD
MAXIM; Cuius est solum eius est usque ad coelum et ad

inferos; he who owns the land owns everything reaching up to
the heavens and down to the depth of the earth. (Gray & Gray,
2009)
Invoked to buttress the right of reasonable enjoyment to property
by the land owner and to some extent transfer of interest under
conveyance.
Maxim has been qualified under statutes and court decisions.
DEFINITION OF LAND... CONTD
LORD BERNSTEIN OF LEIGH .VS. SKYVIEWS & GENERAL

LTD [1978]
the defendant flew an aircraft over the claimants land while
taking aerial
photographs of his house. The claimant
argued that he owned the airspace above his house. It
was held that the ownership of airspace was to the extent
necessary to afford him reasonable enjoyment of property.
DEFINITION
Case of Mines
(1567) 1 Plowd 310
OF LAND....CONTD.
The crown held minerals in their state of

nature as a prerogative right.
Article 62 (1) f, j, k, l and (3) of the
Constitution of Kenya
Mining Bill, 2014
Energy Bill 2014 (Fifth Draft)
Items found on the surface of the land. The
maxim of the finders keepers. whoever finds
a lost chattel has a good claim against the
everyone save for the true owner. (Parker .vs.
British Airways Board [1982] QB 1004)
DEFINITION OF LAND-CONTD
Items found buried in the land belong to the occupier unless

the claimant demonstrates that he has some form of licence
from the occupier which confers a superior right. (ELWES VS.
BRIGGS GAS COMPANY (1886) 33 CH.D 562)
DEFINITION OF LAND.....CONTD
Maxim: quicquid plantatur solo solo cedit- whatever is planted in

(built on) the soil goes with the soil. (P L Onalo 2013)
Fixtures are part of land subject to:
(i) The Degree of Annexation- actual fastening or connection with
the land or building. Holland vs. Hodgson (1872) LR 7 CP 328
AT 335 when the article in question is no further attached to the
land by its own weight it is generally considered to be a mere
chattel.
DEFINITION OF LAND...CONTD
(ii) The object of annexation.
(a) Purpose of annexation as disclosed by
surrounding
circumstances; (Botham
.vs. TSB Bank plc (1996) 73 P
& CR).
(b) Duration of the annexation; (Botham-
supra).
(c) shared or communal understanding of

the
function to be served by the
annexation; (NH Dunn
Pty Ltd .vs. LM
Ericsson Pty Ltd (1979)2 BPR 9241 at
9244-5)
DEFINITION...CONTD
(d) whether the item in dispute was intended to constitute a

lasting improvement on the realty or was attached for
temporally purpose.
(Holland .vs. Hodgson (1872) LR 7 CP 328 at 339,
Berkley vs. Poulett [1977] 1 EGLR 86 at 88)
ESTATESIN LAND
The maximum time before which the tenancy must come to an

end.
Fee simple, Fee- capable of being inherited.
Simple- an ordinary fee.
Life Estate, tenant for life, not capable of being inherited.
Fee tail- tail derived from the French word taille-cut down to
size. An estate of inheritance, which has been cut down by various
restrictions on alienability.
ESTATE IN LAND
Characteristics of the fee tail estate

(i) on the death of a tenant in tail the land
heir, being found among
his issues only.
(ii) In the absence of an heir, the land reverts
grantor.
descends to his
to the
(iii) at common law a tenant in tail cannot

alienate the
land by will (position later
changed under statute)
ESTATES IN LAND
Fee simple, Fee tail, and life estate constitutes the three
freehold estates. reasons:(i) Originally only a person who held by
a free
tenure could hold one of these
estates in land.
(ii)
They are of indefinite duration.
ESTATES IN LAND
LEASEHOLD ESTATE-is that estate in land that an individual or
group of persons holds for a specific period of time. Such an
interest is generally known as a lease or tenancy. principal
categories of leases are:
fixed term of certain duration
fixed term with duration capable of being rendered certain and
tenancies at will and at sufferance
REAL AND PERSONAL PROPERTY
An action in rem or a real action- a plaintiff has a claim as of

right to the return of his property. The claim lays in respect of land.
Personal action or an action in personam- the action lies against
the person of the defendant and not necessarily the thing-res.
The claim lays in respect of movables e.g. Chattels.
LEGAL & EQUITABLE RIGHTS
SERVITUDES
rights in alieno solo -rights conferring a power over another

persons estate for the benefit of the right holder or of his
estate.
Common Law Conception of Servitudes
(i) Easements.
(ii) Profit a prendre.
(iii) Restrictive Covenant.
(iv) Encumbrances.
EASEMENTS
Kamau .vs. Kamau (1984) 1 KLR
An easement is a convenience to be exercised by one land owner

[here the respondent] over the land of a neighbour [here the
appellant] without participation in the profit of that other land. The
tenement to which it is attached is the dominant and the other on
which it is imposed is the servient tenement.
How are they created? At common law only by deed or will. Writing
under hand or parol grant with or without valuable consideration
creates no legal estate or interest in land but only a mere licence of
personal to the licensor or licensee coupled with an interest or grant
if it needs the latter to give effect to the common intention of the
parties.
EASEMENTS
Once an easement is validly created, it is annexed to the land

so that the benefit of it passes with the dominant tenement
and the burden of it passes with the servient tenement to
every person into whose occupation these tenements
respectively come. (Kamau Case)
EASEMENTS
Right may be positive or negative-(Positive-if it authorizes one

to use anothers land in a particular way, Negative-restricts
one in the use of his land.)
Distinction between Easement and Ownership-An easement
permits one person (A) to exercise rights over the land of
another (B), but it is B who retains ownership of the land.
EASEMENTS
Distinction between Easement and License-a licensee allows one to
do something that would, without the license, be trespass.
Nature of Easements- rights capable of being created by an easement; to

do something over, under or upon the servient land, not to do something
over the land, require the owner of servient land to do something over,
under or upon that land and to graze stock on the servient land.
The rights do not include: carrying away anything from the servient land
and exclusive possession of any land.
EASEMENTS
Creation of Easements
Legal & Equitable Easements.
Creation of Legal Easements
(a) By Statute- ss 136-148 of the Land Act, 2012, ss 28 and 98-100
of the Land Registration Act,2012 and s. 22 of the Water Act.
(b) By Prescription- s. 32 Limitation Actions Act
EASEMENTS
(Govindji & another v Sifa Insurance Company Ltd[2003] eKLR)an easement of way over the plaintiffs 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.
EASEMENTS
(c) By Deed/Registered Disposition- created by deed (unregistered
land), or by registered dispositions entered on the register of titles
Not so
however, for the furrow and water
from the river to the land of Gregory
[here the respondent] (the dominant
tenet) for these are not easements of
necessity and do not arise from
operation of law but were created and
must be reflected in the certificate of
title or else they are not legally
enforceable
(registered land).Justice Kneller in Kamau Case
EASEMENTS.
Equitable Easements-Easements held for periods less than a fee

simple absolute in possession or a term of years (leasehold).
easement embodied in a written contract which equity regards as
specifically enforceable.
easement is created by proprietary estoppel.
EASEMENTS
Characteristics of an Easement
Ellenborough Park [1956] Ch 131, 163,
There must be a dominant tenement and a

servient tenement
The easement must accommodate the dominant
tenement
The dominant and servient tenements must be
owned by different persons; and
The easement must be capable of forming the
subject matter of a grant.
EASEMENTS
(i)
There must be a dominant tenement and a
tenement.
servient
Easements are rights which exist for the

benefit
of one piece of land and are
exercised over another.
there must be land that is benefited,

the
dominant tenement, and land that
is burdened, the
servient tenement.
EASEMENTS.
Alfred F Beckett Ltd v Lyons [1967] Ch 449, 483, an
essential element of any easement that it is annexed to land and
that no person can possess an easement otherwise than in respect
of and in amplification of his enjoyment of some estate or interest
in a piece of land.
London & Blenheim Estates Ltd v Ladbroke Retail Parks Ltd
[1994] 1 WLR 31, 36. it is trite law that there can be no
easement in gross
EASEMENTS
(ii) An easement must accommodate the

tenement.
dominant
easement must confer a benefit on the land as such, and not

merely on the person who currently own the land.
An easement therefore benefits the owner of the land in his or her

capacity as owner of that land, not personally.
EASEMENTS
courts have acknowledged the artificial nature of the concept

that the land can itself benefit from the right( Stilwell v
Blackman [1968] Ch 508, 524 to 525).
Guidelines.
The servient tenement must be sufficiently proximate i.e. near,
to the dominant tenement to be able to confer a benefit on it.
Not necessarily adjacent or sharing the border.
EASEMENTS
The alleged right must not confer a purely personal advantage

on the owner of the dominant tenement.
Hill v. Tupper (1863), the owner of a canal granted the
plaintiff the right to put pleasure boats on the canal for profit,
but this was held to be a personal advantage as it was not
sufficiently connected with that land so as to amount to an
easement.
EASEMENTS
It is unlikely that a right which confers a
purely recreational useron the dominant
tenement will be accepted as an easement.
Re Ellenborough Park, a defined right to

enjoy an enclosed private park was an
easement because the park was created for
the very purpose of enhancing the utility of
the few private houses which had access to it.
EASEMENTS
(iii) The dominant and servient tenements must be

owned by different people.
a man cannot have an easement over his own land as was
held in Roe v Siddons (1889) 22 QBD 224, 236;
Metropolitan Railway Co v Fowler [1892] 1 QB 165;
Kilgour v Gaddes [1904] 1 KB 457 at 461.
EASEMENTS
(iv)The right which the easement
purports to
create must be capable of forming the subject matter
of a grant
All easements are deemed to lie in

grant
either granted expressly,
impliedly or by
prescription.
Rationale-Re Ellenborough Park

[1956] Ch 131, 175 to 176.
EASEMENTS
To avoid capricious and personal
benefits becoming easements.

To promote clarity by demanding
sufficient specificity at the time
of creation.
To ensure some degree of
connection with the land in the
same way as the touch and
concern requirement does in
covenants.
EASEMENTS
Extinguishment of Easements
By Statute
Exercise of statutory power of sale.
By express release.
By implied release/abandonment.
On termination of the estate on which the easement.
PROFIT A PRENDRE
a right to go on another persons land, to take a particular
substance from that land whether it is the soil or products of the
soil. (e.g. sand, gravel, trees, etc).
Types of Profits
(i) Profits appurtenant-annexed to an estate in the dominant
land and runs with the land.
Such profits should comply with the characteristics set out for
easements in Re Ellenborough Park. [1956]
PROFIT A PRENDRE
(ii) Several or in common. (students to read)

(iii) Profits in gross (students to read)
TERMINATION OF PROFIT A PRENDRE
Unity of seisin: involves acquisition of ownership or the
servient tenement by the owner of the profit at which point the
question of enjoying the profits ceases.
PROFIT A PRENDRE
Easements and other rights of servient tenement for the

benefit of a dominant tenement are extinguished if both
tenements come into the same ownership).
Release: Upon registration of an executed release from, the
registration of a profit is cancelled.
Alteration of the dominant tenement
RESTRICTIVE COVENANTS
A covenant affecting land is restrictive if it restricts the doing of

something to, on, over or under land or in relation to an estate or
interest in land.
Restrictive covenant to be effective must meet certain conditions.
(i) The intention of the parties that the benefit of the covenant
should be capable of
passing with the land to be benefited,
must appear from the instrument creating the covenant
RESTRICTIVE COVENANT
(ii)
The covenant must have the object of protecting land which,
at the date of the covenant belongs to, and after the date of the
covenant, is retained by, the
covenantee.
(iii) At the dates of the covenant and of the
conveyance or
assignment and at the date
of the breach complained of, the
covenant must be capable of protecting the land intended to be
protected; and
(iv) The land intended to be protected must be described by

the instrument creating the
covenant so as to be
ascertainable with reasonable certainty.
(v) A restrictive covenant which forbids the
or lease of land is void and unenforceable.
sale, mortgage
RESTRICTIVE COVENANTS
Creation of Restrictive Covenants
As a general rule, a restrictive covenant or agreement

cannot be created by parol.
Tulk v Moxhay (1848).
A restrictive covenant must be in a

prescribed form
and becomes effective
when registered. Discriminative
restrictive covenants or agreements are void ab initio.
Intervention of Equity
In equity, the burden of a restrictive covenant could be enforced
under the rule in Tulk v Moxhay provided:
It was the common intention of the parties that the covenant
should benefit the land of the covenantee.
The assignee of the covenantee must show that the benefit of the
covenant has passed to him.
Extinguishment or Determination of Restrictive Covenants

(assignment)
FOUNDATIONS OF LAW OF PROPERTY IN

KENYA
Origin, nature and concerns of colonialism in Kenya.

Colonialism altered indigenous production system and institutions
and paved way for the penetration of alien norms and institutions.
Mungeam erroneously portends that the Britishs penetration of
East Africa Territory was for the purpose of international diplomacy,
opening of the Suez Canal 1869 and control of head waters of
Uganda.

KENYA
Colonial government wanted to assume formal jurisdiction and

discover agents of economic development of the territory.
Kenya declared a protectorate in 1895 however this did not confer
radical to the land in the territory.
Rights in land could only be acquired through conquest,

agreement, treaty and sale.

KENYA
Some methods only possible within the ten (10) mile strip at
the coast under the jurisdiction of Zanzibar sultanate.
1895 administration agreement between the IBEAC and the
British Government conferred the latter control over all rights
in land ceded to the former by concession agreement which
the sultan of Zanzibar had signed in 1898.

KENYA
Remedies for the protectorate status.

(i)
Indian Land Acquisition Act of 1894 extended in 1896 to the

sultans dominions pursuant to section 8 of the 1884
Zanzibar Order-in-council.
(ii)
The Act was also extended past the Sultans dominions even
though there was no justification to do so

KENYA
(iii) Opined that the Foreign Jurisdiction Act of 1890 gave the
Crown the power of
disposition over waste and unoccupied
land
Revisions incorporated in the East Africa (lands) order in council of
1901, Crown Land Ordinance (1902)
The colonial government had to guarantee ownership beyond the
10 mile coastal strip to attract private developers.

KENYA
1897 regulations modelled after the IBEACs 1894 Land

Regulations were enacted vide the Zanzibar Order-in-Council for
peace, order and good governance in Kenya.
Colonial government was able to sell freeholds within the sultans
dominion, issuance of occupancy certificates of 21 years which
were enhanced to 99 years.

KENYA
1915 Crowns Lands ordinance empowered the commissioner to

grant 999 year leases (agricultural land) for a token and 99
years of land within townships at nominal rent.
Commissioner had power to convert 99 years leases to 999
year leases.

KENYA
LEGISLATIONS.
(i)
THE CROWN LAND ORDINANCE.
()
Enacted in 1902 and amended in 1915 to

alienation of crown land.
facilitate
S.36 defined public land as .......all public land including all

land occupied by native
tribes of the protectorate and all
lands reserved for the use of the members of
any native
tribe.

KENYA
In light of the foregoing definition it was not possible for the
Africans to hold any titles to lands they occupied.
Wainaina vs. Murito (1922-23) IX KLR 102
...natives were tenants at the will of the Crown in respect of the
land they occupied.
Commissioner or Governor powers to alienate Crown land.
Power to grant 25-7500 hectares (with approval of the State
Secretary).

KENYA
Grant leases of agricultural land for a period of 999 years and for a
period of 99 years for town plots.
Power to subdivide town plot for purposes of construction.
Power to reserve from sale, lease or other disposal any piece of
Crown land required for use by natives.
Africans occupying the reserves were not vested with any rights.

KENYA
Only the white settlers who had been granted agricultural land
and/or town plots by the Commissioner could alienate land.
The 1915 Crown Land Ordinance heralded the onset of private
individual land ownership in Kenya.

KENYA
(ii)
Registration of Documents Ordinance (R.D.O or R.D.A).
()
Facilitation of the registration of documents relating to

transactions involving alienated crown land.
()
1st registration statute in Kenya.
()
Currently registration of documents.

KENYA
(ii) Land Titles Act LTA (CAP 281) (Repealed).
Enacted in 1908 for purposes of facilitating alienation of Crown
land at the Coast.
Individuals who successfully claimed private land were issued
with certificates of ownership (freehold)or certificates of
mortgage or interest (leasehold)
Titles confirmed existing rights.

KENYA
Any plot which was not successfully claimed by private

individuals vested in the colonial government and upon
independence in the Kenya Government.
(iii) The Registration of Titles Act (cap 281-repealed)
Enacted in 1920 to improve the issuance of titles to land as
well as regulating transactions.

KENYA
(iii) The Indian Transfer of Property Act (1882)-(repealed)

Substantive law governing the conduct of proprietary transactions
or Conveyancing under the LTA, RDA, and RTA which were
registration statutes.
(iv) The Government Lands Act (Repealed)
Replacement of the 1915 Crowns Land Ordinance.

KENYA
To make further and better provisions for regulating the leasing

and other dispositions of Government Land and related issues.
Abolished the compulsory registration required under the RDA in
respect of transactions relating to unalienated Government Land.
(v) The Registered Land Act (Repealed).
Self contained-had
Conveyancing law.
its
own
registration,
substantive
and

KENYA
(vi) Land Act, 2012-(students to read the salient features.)

(vii) Land Registration Act, 2012 (Assignment)
(viii) National Land Commission (Assignment)
CLASSIFICATION OF LAND
The Land Act classifies land as Public land, private land, and
community land.
(i) Private Land.
land held by a private citizen or by a group of individuals or a
company.
leasehold or freehold interest in the land.
Registration is conclusive proof of ownership.
Non- citizens leasehold for 99 years (definition of non-citizen
proffered in the Constitution)
Proprietorship may be exclusive, concurrent or consecutive.

exclusive where the bundles of rights are exercisable by the
proprietor to the exclusion of all other persons.
concurrent where two or more proprietors have similar rights over
the same property.
consecutive where interest in land is created successively one after
the other and proprietorship changes with time. e.g. strict
statement, trusts and perpetuities.
Students to read about joint tenancy and common tenancy.

Guarantees of private property rights (Art. 40 of the
Constitution; see also Park View Shopping Arcade Ltd vs.
Charles M Kangethe & 2 Others 2004 e KLR)
(ii) Public Land.

Land belonging to the public. (Article 62(1) of the Constitution)
(a) Unalienated government land;
(b) Land lawfully held, used or occupied by any State organ (not
leases from private citizens);
(c) land in respect of which no individual or community ownership
can be established by any legal process
(d) land in respect of which no heir can be
identified.
(e) all minerals and mineral oils as defined by law.

(f) government forests, government game
reserves, water
catchment areas, national parks, government animal sanctuaries,
and
specially protected areas;
(g) all roads and thoroughfares provided for

Parliament.
by an Act of
(h) all rivers, lakes and other water bodies as

of Parliament.
defined by an Act
(i) the territorial sea, the exclusive economic zone and the sea
bed
(j) the continental shelf
(k) all land between the high and low water marks.
M.C. MEHTA .vs.KAMAL NATH &

CLASSIFICATION
OF LAND
OTHERS
The Public Trust doctrine rested on the principle
that certain resources, like air, sea, waters and
the forests have such great importance to the
public as a whole that it would be wholly
unjustified to make them a subject of private
ownership. The doctrine enjoined the Government
to protect the resources for the enjoyment of the
general public rather than to permit their use for
private ownership or commercial purposes. The
court held that the Government committed a
breach of public trust by leasing the ecologically
fragile land to the company and it cancelled the
lease and ordered the restoration of the land to its
original condition.
Report of The Commission of Inquiry into The Illegal/Irregular

Allocation of Public Land (Nairobi: Government Printer 2004)
(Assignment)
(iii)Community Land.
Community land vests in and is held by

communities identified on the basis of ethnicity,
culture or similar community of interest. (Art. 63
of the Constitution.)
land lawfully registered in the name of group
representatives under the provisions of any law.
land lawfully transferred to a specific community
by any process of law.
any other land declared to be community land by
an Act of Parliament, and
land that is
lawfully held, managed or used by specific communities as
community forests, grazing areas or shrines
ancestral lands and lands traditionally occupied by hunter-gatherer
communities; or
lawfully held as trust land by the county governments, but not
including any public land held in trust by the county government
under Article 62 (2).
Ndungu Report at page 52
The only ways in which trust land can be
legally
removed
from
the
communal
ownership
of
the
people
is
through
adjudication and registration or Setting
Apart. Adjudication and registration removes
the particular lands from the purview of
community ownership and places them
under individual ownership. Setting apart
removes the trust lands from the dominion
of community ownership and places them
under the dominion of public ownership.
Assignment.
(i) Joseph Letuya & 21 others v Attorney
[2014] eKLR
General & 5 others
(ii) 276 / 2003 Centre for Minority Rights Development (Kenya)

and Minority Rights
Group International on behalf of Endorois
Welfare Council v Kenya.
(iii) Mabo and Others V. Queensland (No. 2)
(iv) Community Land Bill, 2013
[1992] HCA 23.
LAND TENURE SYSTEM

Refer to our discussions on Estates in Land
Section 5 of the Land Act-statutory tenure.
(a) Freehold.
(b) Leasehold.
(c) such forms of partial interest as may be
defined under this
Act and other law, including but not limited to easements; and
(d) Customary land rights, where consistent
Constitution.
with the
OTHER INTERESTS IN LAND
LICENCE
a permission, which is given by one person (an interest holder
in land) to another person, to enter upon his/ her land and do
something or perform an act on that land. Without this
permission, such entry by that other person on the land would
be unlawful and hence, a trespass.
This kind of permission passes no interest in the land to the

licensee. It simply makes unlawful entry lawful. If one is
allowed to occupy another persons land on the basis of
friendship, blood relationship or benevolence such occupation
will be treated as a license.
THE MORTGAGE/CHARGE
A mortgage or charge relationship arises where a landowner
(or interest holder) who is in need of some money offers
his/her land to a bank or other financial institution as security
in return for a loan. This process is called mortgaging or
charging. (To be handled extensively under Law of Property II)
REGISTRATION SYSTEMS IN KENYA

Registration-process of recording interests in land.
To facilitate ascertainment of interests in land through searches for
effective conveyancing.
passes interest in land from one party to another.
Types of Registration.
(i) Registration of Deeds.
(ii) Registration of Titles

(i)
Registration of Deeds.
()
maintenance of a public register in which documents affecting

interests in a particular registered land are copied.
()
evidentially of the recorded transaction and is by no means

proof of title.
()
prima facie proof of the fact that the transaction in question did
occur.
()
will not suffice to prove the validity or legitimacy of such

transactions
REGISTRATION OF TITLE
The deed does not have to be consistent with any registered

transaction which may have previously taken place in
connection with the property in question.
The deeds system cannot confer any secure title to land in
favour of the person in relation to whom the registration of the
deed has been executed.
Reliance on the deed system is risky as reliance on the

unregistered system.
Entails a historical deduction of the title in respect of the property
in question if one is to be sure that the title is good and well
rooted.
No government guarantee as to the accuracy of entries.
No indemnity would be available to take care of any loses arising
from omissions that may be disclosed in the register.
(ii) REGISTRATION OF TITLE

A register of titles serves as an authoritative record of the
rights to clearly defined units of land as vested for the time
being in some particular person or body, and of the limitations
if any, to which these rights are subject.
The property is recorded on the register

Land registrar checks the details of the property upon
satisfaction that the title is in order he enters the name of the
current legal owners on the register as the registered
proprietor.
Registrable transactions are registered against each title
document kept in the registry.
Save for overriding interests, all the material particulars affecting

the title of the land are fully revealed merely by a perusal of the
register.
Registration of interest in land are guaranteed by the state.
Register is at all times the final authority and the State accepts
responsibility for validity of transactions, which are affected by
making an entry in the register.
Certificates are evidence of disposition of interest in land.

Land certificates are issued for absolute proprietorships and
certificates of leases for leaseholds.
Register is a very important document as it is the sole
authoritative record wherein lies title to all registered plans.
The register is kept at the lands office, the central registry in the
lands office.
The register itself refers to the official record containing details of
ones estates (freehold or leasehold), particulars of the property
and the interests that affect the property
The register can also be used in reference to the entire index of
many individual registers that comprise the sum total of all titles
relating to registered land in the country.
The register is divided into 3 main sections:
property section
proprietorship section and
the encumbrances section.
The property section contains:(i)
a section of the registered property
(ii)
details of the date of first registration of the land
(iii) exemptions or other adverse interests to which the property

is subject.
The proprietorship section states:the nature of the registered title, name and address and
other description of the registered proprietor, any restraint if
at all to which the powers of disposition are subject.
The encumbrances sections gives:(i) particulars of subsisting burdens to which

property is subject
the
(ii) any restrictions that are endorsed that

have
the effect of preventing such
dealings in the property
as maybe
inconsistent with the restrictions
imposed.
Registration of
documents/Deeds
A public register is kept in which documents affecting interests

in land are copied or abstracted.
It is the document or the deed that is registered and not the

title.
document/deed evidence the disposition of an interest in land.
it is the document that proves title and not the register.

To establish good title on has to go behind the public register
and dig into the history of all the transactions affecting the
particular parcel of land.
No guarantee from the government as to the accuracy of the
register and therefore no indemnity in case of loss.
PRINCIPLES OF REGISTRATION
Registration is a process through which interests in land are

recorded.
Documentary manifestation of land as a market commodity.
vital information of quantum of rights over a property held by

an individual.
TORRENS SYSTEM OF REGISTRATION

Named after Sir Richard Torrens who formulated the system in
1958 in South Australia.
provides a new and improved information system on property
in the form of a register and the register contains all the
material facts about a particular property.
In effect it leads to a creation of a public record on property full

of information of the kind that would be of interest to anybody
wishing to have any dealings in such property.
There is an element of security of such a title or title assurance
which does offer a measure of protection bona fide purchaser
without notice who may wish to acquire such a property in
future.
There are principles relating to the Torrens System
The mirror principle this relates to the

accuracy or certainty or conclusiveness
that entries in the register in as far as the
true status of the title is concerned.
Insurance Principle since the state has
undertaken to establish and maintain this
sort of system, it by extension guarantees
that there would be indemnity offered to
compensate anyone who may suffer loss in
the process.
Indefeasibility - This is to the effect that once registered as the

owner of an interest and such interest duly disclosed or entered in
the register the rights acquired cannot be defeated by any adverse
claims which are not disclosed in the register.
Curtain Principle this relates to the requirement that the
register should disclose precisely the nature of the interests and
who are the owners.
EFFECTS OF REGISTRATION.
Vests absolute ownership of that land together with all rights

and privileges appurtenant thereto;
Leasehold interest together with all implied and express rights
and privileges.
Indefeasibility of title subject to encumbrances recognised
under law.
Trustee obligations.
EFFECT OF REGISTRATION
Certificate of title/lease prima facie evidence of ownership

subject to encumbrances, easements, restrictions and
conditions contained or endorsed in the certificate.
Title may be challenged on the grounds of fraud,
misrepresentation or acquired illegally, unprocedurally/ corrupt
schemes.
All registered lands subject to overriding interests.
EFFECTS OF REGISTRATION
Overriding interests;
spousal rights over matrimonial property

trusts including customary trusts
rights of way, rights of water and profits subsisting at the
first registration.
time of
natural rights of light, air, water and support
rights of compulsory acquisition, resumption, entry,

conferred by any other written law
leases or agreements for leases for a term not exceeding

years, periodic tenancies and indeterminate
tenancies
search and user

two
EFFECTS OF REGISTRATION
charges for unpaid rates and other funds which, without reference to
registration, are expressly declared by any written law to be a charge upon
land
rights acquired or in process of being acquired by virtue of any written law
relating to the limitation of actions or by prescription
electric supply lines, telephone and telegraph lines or poles,
pipelines, aqueducts, canals, weirs and dams erected, constructed or laid in
pursuance or by virtue of any power conferred by any written law; and
THE BENEFITS OF LAND REGISTRATION
(a) Certainty of ownership- certainty as who is the proprietor and the

existing rights over the land.
(b) Security of tenure- guarantee/indemnity/incentive to invest.
(c) Reduction in land disputes.
(d) Improved Conveyancing-costs and delays in transferring property
rights substantially reduced
(e) Stimulation of the land market- Introduction of a cheap,

secure and effective system for recording and transferring
interests in land should improve the operation and efficiency of
the land market.
(f) Security for credit.
(g) Monitoring of the land market. The cadastral system may be used to
monitor and, if necessary, to control land transactions and ownership.
(h) Facilitation of land reform. Land redistribution, land consolidation and

land assembly for development and re- development.
(i) Management of State lands-cadastral systems.
(j) Support for land taxation.
(k) Improvements in physical planning.
(l) Recording of land-resource information.
LEGAL POSITION OF NON-REGISTRATION
RATIONALE FOR REGISTRATION

passing of interests and rights from one party to another.
serves as a documentary manifestation of land as a commodity.
provides information regarding the quantum of rights in land.
gives a framework for easy transferability of interest in land
LEGAL POSITION OF NON-REGISTRATION

our registration system provides for both a compulsory
registration regime as well as one that is optional.
Walsh and Lonsdale (1892) 21 CHD 9.
a
landlord contracted in writing to let a mill to

a tenant for 7 years. The parties agreed to
execute a formal deed of lease. At any time
the landlord could require the tenant to pay a
years rent in advance. The tenant had entered
into possession, paid rent quarterly in arrears
but did not execute a formal lease.
LEGAL POSITION OF NON-REGISTRATION.

The landlord demanded a years rent in advance, the
tenant refused to pay and the landlord attempted to
distrain for it. The tenant argued that he was merely a
tenant from year to year and that no lease had been
executed and thus, he could not be required to pay 12
months in advance. The tenants contentions were
rejected by the court which said that a tenant in
possession of premises under a specifically enforceable
contract for a lease is in the same position in Equity as
if a formal deed of lease had been executed and so the
landlords use of distress was lawful.
LEGAL POSITION ON NON-REGISTRATION
KENYAN POSITION
(i)
the general principle under property law is that no interests or

rights or estate in land can be passed, effected or otherwise
created by way of an unregistered instrument where this is a
legal requirement.
(ii)
no burdens or covenants that adversely affect the enjoyment of

rights and interests in land can be created by way of an
unregistered instrument.
(iii)
The above position has not restrained our

courts from
applying what is to all intents
and purposes the principles
enunciated in Walsh and Lonsdale.
(iv)
In situations involving non-registration of

instruments
which ought to be registered
as a matter of law the courts
have strived
to give effect to the arrangement as far as the
period where there is no requirement
of compulsory
registration.

Bains & Chogley (1949) EACA 27
The issue here was that the landlord purported to lease

out certain premises for manufacturing purposes for a
period lasting 5 years through an unregistered
instrument and a dispute arose ending up in court. In
the opinion of the court the lease though not registered
was valid as a lease from year to year which does not
attract the requirement of compulsory registration and
was therefore subject to the provisions of the ITPA
(repealed) including that of giving 6 months notice
where there is desire to terminate the arrangement.
LEGAL POSITION ON NONREGISTRATION

MERALI .V. PARKER (1956) 29 KLR 26
The issue was one involving the effect of non-registration of

a sub lease for which there was a legal requirement for
registration. In the observation of the court and with regard
to the provisions with sections of the GLA (repealed) the
effect was that whereas evidence could not be adduced in
court from such an unregistered document to prove
existence of a lease for more than one year, such a
document could be relied upon to prove the existence of an
agreement for a lease from year to year and the effects of
this created and the couple being in possession created
what could be regarded as year to year tenancy which could
only be terminated in accordance with the provisions of ITPA
in line with Section 106 and 116 which makes it mandatory
for 6 months notice period to be issued.
LEGAL
POSITION
ON
NONCLARKE & SONDHI (1963) E.A. 17
REGISTRATION
The lessor purported to lease out certain
premises to the
lessee for a period of 3 years at an agreed annual rent
which was to be paid in specified monthly instalments. The
lessee had possession of the premises and in the course of
time fell into rent arrears thereby forcing the Lessor to bring
an action for recovery of the same. In his defence the
Lessee introduced or contended that the Lessor had no valid
cause of action owing to the fact that the lease was not
registered as was by law required under the provisions of
the RTA (repealed) and it was this position that on account
of this fact that the entire arrangement was void or
unenforceable and that such an arrangement was incapable
of passing any legal estate in land. In the opinion of the
court, the unregistered lease could operate as a contract
inter parties and consequently the Lessee could not escape
to pay any rents due.
SOUZA FIGURIDO
& CO. LTD
V. MOORINGS
LEGAL
POSITION
ON
NON- HOTEL LTD (1960)
EACA 926
REGISTRATION
A landlord sought to recover rent arrears from a tenant on

the basis of an unregistered sub lease which was by law
required to be registered. In his defence the tenant raised
the question of the validity of such an arrangement on
account of non-registration. He further contended that in
view of the non-registration of the transaction that the same
was ineffectual to create any interests in land or any Estate
therein and that in the result any covenant to pay rent could
not be enforced. Whereas the court of appeal agreed with
the tenants contention that no interests could be created by
way of an unregistered instrument and that no covenants
could create liability if the instrument was unregistered, the
lease could nevertheless be regarded as having created a
contract inter parties which is enforceable as between the
parties and therefore the parties could not escape their
respective obligations and duties including that of paying
rent.

LAW OF PROPERTY IN LAND

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LAW OF PROPERTY

A right over a determinate thing (defined).

Property rights cover interest over corporeal (tangible/physical

ATTRIBUTES OF PROPERTY RIGHTS

economic, sentimental or intrinsic value (anthropocentric and

A right fostered and protected by law for the exclusive use,

Ownership is a unitary right.

SPECIAL CHARACTERISTICS OF THE RIGHT

De facto control of a thing.

ELWES VS. BRIGGS GAS COMPANY (1886) 33 CH.D 562.

Possession exists when the possessor believe himself to be the

.....Legal authority to vindicate possessory rights as against

Statutory registration of interests in land provides not a

Article 260 of the Constitution of Kenya;

DEFINITION OF LAND..... CONTD

Land comprises of corporeal and incorporeal hereditaments.

DEFINITION OF LAND CONTD

MAXIM; Cuius est solum eius est usque ad coelum et ad

DEFINITION OF LAND... CONTD

LORD BERNSTEIN OF LEIGH .VS. SKYVIEWS & GENERAL

The crown held minerals in their state of

Items found buried in the land belong to the occupier unless

Maxim: quicquid plantatur solo solo cedit- whatever is planted in

(c) shared or communal understanding of

(d) whether the item in dispute was intended to constitute a

The maximum time before which the tenancy must come to an

Characteristics of the fee tail estate

(iii) at common law a tenant in tail cannot

They are of indefinite duration.

REAL AND PERSONAL PROPERTY

An action in rem or a real action- a plaintiff has a claim as of

LEGAL & EQUITABLE RIGHTS

rights in alieno solo -rights conferring a power over another

An easement is a convenience to be exercised by one land owner

Once an easement is validly created, it is annexed to the land

Right may be positive or negative-(Positive-if it authorizes one

Nature of Easements- rights capable of being created by an easement; to

Equitable Easements-Easements held for periods less than a fee

There must be a dominant tenement and a

Easements are rights which exist for the

there must be land that is benefited,

(ii) An easement must accommodate the

easement must confer a benefit on the land as such, and not

An easement therefore benefits the owner of the land in his or her

courts have acknowledged the artificial nature of the concept

The alleged right must not confer a purely personal advantage

Re Ellenborough Park, a defined right to

(iii) The dominant and servient tenements must be

All easements are deemed to lie in

Rationale-Re Ellenborough Park

benefits becoming easements.

(ii) Several or in common. (students to read)

Easements and other rights of servient tenement for the

A covenant affecting land is restrictive if it restricts the doing of

(iv) The land intended to be protected must be described by

As a general rule, a restrictive covenant or agreement

A restrictive covenant must be in a

Extinguishment or Determination of Restrictive Covenants

FOUNDATIONS OF LAW OF PROPERTY IN

Origin, nature and concerns of colonialism in Kenya.

FOUNDATIONS OF LAW OF PROPERTY IN

Colonial government wanted to assume formal jurisdiction and

Rights in land could only be acquired through conquest,