LAND LAW AND CONVEYANCING: PRINCIPLES AND

PRACTICE

LAND LAW AND CONVEYANCING: PRINCIPLES AND

PRACTICE

Prof. Tom Ojienda, SC

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TABLE OF CONTENTS
Page
Preface ................................. xi
Table of Cases .......................... xv
Table of Legislation .................... xxiii

CHAPTER ONE: APPRECIATING THE CONCEPT OF LAND IN KENYA 1

Defining Land ........................... 1
Land Law and other Disciplines. ......... 6
Land Law and Conveyancing ............... 6
Land Law and the Environmental Law ...... 7
Land Law and Chattels Transfer .......... 7
Land Law and Equity and Trust Law ....... 8
Land Law and Contract Law ............... 9
Ownership, Possession and Title to Land . 10
Ownership of Land ....................... 10
Possession of Land ...................... 11
Title to land ........................... 11
Origin, Development and Legislative Transformation of
Land Law ................................ 11
Development of Land law in the Post-independence Era
in Kenya ................................ 16
Landholding in Kenya under the Independence
Constitution ............................ 18
Landholding in Kenya under the
Constitution of Kenya 2010 .............. 29

CHAPTER TWO: THE LEGAL FRAMEWORK GOVERNING LAND AND CONVEYANCING LAW IN KENYA 35
Introduction ............................ 35
Previous Legislative Framework on Land .. 36
The Independence Constitution ........... 37
Land Adjudication Act ................... 38
Land (Group Representatives) Act ........ 39
Land Acquisition (Repealed) Act ......... 39
Government Lands (Repealed) Act ......... 40
Physical Planning Act ................... 41
Land Control Act ........................ 41
Trust Land Act .......................... 42
Registration of Titles (Repealed) Act ... 43
Land Consolidation Act .................. 43
Registration of Documents Act ........... 44
Registered Lands (Repealed) Act ......... 45
Agriculture Act ......................... 46
Law of Contract Act ..................... 48
Indian Transfer of Property Act, 1882 ... 50
Customary Law ........................... 51
Easement and Rules of Adverse Possession 52
Framework for Institutional Management and Regulation
of Land under the Constitution of Kenya 2010 53
Background to the Establishment of the
National Land Commission ................ 54
Institutional Administration and Management of
Public Land ............................. 67
Land Taxation, Collection of Land Rent, Royalties and other Payments over Land
............................. 78
Control of dealings in Private Land ..... 79
Land Settlement Programmes and Fund ..... 81
Transition ............................. 85
Environment and Land Court Act .......... 87
National Land Policy-Sessional Paper No.3 of 2009 88
Origin and Purpose ...................... 88
Analysis of National Land Policy ........ 90
Land Tenure Issues ...................... 91
Access to land .......................... 94
Land Access by the Marginalised ......... 98
Land Use Management Issues .............. 99
Land Administration Issues .............. 100
Eminent Domain/Exercise of State Power .. 101
Special Land Issues Featured ............ 103
Legislative and Institutional Changes Proposed to
Implement the National Land Policy ...... 105
Conclusion .............................. 110
Disposal of public land must be sanctioned by statute 111
Corporations will no longer be used as conduits for land grabbing 111
Conservation of forests, national parks, game reserves,
riparian reserves and specially protected areas 112
Conservation of pastoral lands .......... 112
Historical injustices ................... 112

CHAPTER THREE: PROPRIETARY RIGHTS IN LAND ......... 115

Conceptualising a Proprietary Right ..... 115
Freeholds ............................... 119
Leasehold Interests ..................... 120
Exclusive Possession .................... 121
Defined Premises/Interest ............... 121
Defined Premises/Land ................... 122
Period certain/definite ................. 122
Sub-Leases .............................. 124
Sectional Titles ........................ 125
Remainders and Reversions ............... 125
Co-Ownership ............................ 127
Ownership and Land Possession during the Colonial
Era in Kenya ............................ 127
Conceptualising Customary Tenure ........ 129
Joint Tenancy ........................... 130
Tenancy in Common ....................... 132
Co-ownership by Spouses ................. 134
Licenses ................................ 135
Common Law classification of Licenses ... 136
Gifts ............................... 139
Conclusion .............................. 140

CHAPTER FOUR: CADASTRAL SYSTEMS IN KENYA: FOCUS ON LAND ADJUDICATION AND TITLING 141
Introduction ............................ 141
Overview of Cadastral Systems in Kenya:
Historical Perspectives ................. 142
Land Adjudication at the Coast .......... 142
Landholding in the White Highlands ...... 143
Land Consolidation and Adjudication ..... 143
The case for Settlement Schemes ......... 144
The case for Large Scale Farms and Group Ranches 145
The case for Town Plots ................. 145
Conceptualizing Land Rights under the Colonial Regime 146
Process of Adjudication ................. 147
Adjudication Register ................... 150
Instruments of Land Adjudication ........ 151
Conclusion .............................. 153

CHAPTER FIVE: LAND REGISTRATION .................. 155

Introduction ............................ 155
Purpose of Registration ................. 155
Identification of Registration Documents 159
Process of Registration ................. 165
Other Specialised Forms of Registration . 167
Registration of Sectional Titles ........ 167
Registration of Sub-Lease ............... 170
Conclusion .............................. 171

CHAPTER SIX: UNREGISTERED INTERESTS WHICH OVERRIDE REGISTERED TITLE 173

Introduction ............................ 173
Adverse Possession ...................... 174
Easements ............................... 184
Profits ................................. 190
Conclusion .............................. 191

CHAPTER SEVEN: LAND LAW AND BORROWING TRANSACTIONS .. 193

Introduction ............................ 193
Conceptualising Equitable Mortgages and Equitable Charges 195
Forms of Mortgages ...................... 196
Simple Mortgages ........................ 197
Mortgage by Conditional Sale ............ 197
Usufructuary Mortgage ................... 198
English Mortgage ........................ 199
Anomalous Mortgage ...................... 200
Interventions by the Land Registration Act and Land Act 200
Salient Features and the Process of Securitization of Immovable Property
202
Remedies of Mortgagees and Chargees ..... 209
Under Registered Land (Repealed) Act .... 209
Statutory Power of Sale ................. 209
Appointment of a Receiver ............... 211
Suit to Recover the Money Secured ....... 212
Under Indian Transfer of Property (Repealed) Act 213
Statutory Power of Sale ................. 213
Appointment of a Receiver ............... 215
Foreclosure ............................. 215
Suit on Covenant to Repay ............... 216
Right to Take Possession ................ 216
Conclusion .............................. 219

CHAPTER EIGHT: LAND TRIBUNALS ................... 221

Introduction ............................ 221
The National Environment Tribunal ....... 221
The Business Premises Tribunal .......... 231
The Land Acquisition Compensation Tribunal 236
Conclusion .............................. 241

CHAPTER NINE: LAND LAW; COMPARATIVE STUDY ......... 243

Introduction ............................ 243
Principles of Land Law in Uganda ........ 243
Land Ownership, Administration and Dispute Resolution 245
Land Ownership .......................... 246
Land Administration and Dispute Settlement 249
Critique of the Land Act ................ 249
Principles of Land Law in Tanzania ...... 251
Historical Perspective .................. 251
Salient Provisions of the National Land Policy 253
Salient Provisions of the Land Act, 1999 253
Salient Provisions of the Village Land Act, 1999 255
Principles if Land Law in South Sudan ... 257
Historical Perspective .................. 257
The Governing Legal Framework ........... 258
South Sudan Land Commission (SSLC) and other Land Administration Institutions
............................ 263
Conclusion .............................. 264
Bibliography ........................... 267

PREFACE
My aim in writing this book is to provide a careful presentation and analysis of
land law and conveyancing in practice and to lay a foundation for the development
and further understanding of conveyancing processes in light of recent
constitutional and statutory developments in Kenya. This book, therefore,
assesses the contemporary state of land law and conveyancing while taking into
account recent developments which include the promulgation of a novel
constitutional order in 2010, the enactment of Land Act 2012, the Land
Registration Act 2012, and the National Land Commission Act 2012. I also discuss
recently proposed land bills, including the Community Land Bill 2015, against
the wider background of the interplay of political, social and economic forces
in Kenya.
This book does not purport to examine in detail all aspects of land law and
coveyancing, nor is the book a work of policy analysis, but rather, my aim is to
explore the basic principles, structures, processes and effectiveness of the land
law framework as it relates to land use, ownership and other accruing rights. I
do this while selecting for closer scrutiny a number of topics where the role
and impact of land law and conveyancing have been most evident. The book
consequently makes an analysis of land tenure problems in Kenya and evaluate the
alternative processes and structures of land tenure reforms recommended by
various Commissions over the years.
It is hoped that what emerges will provide the reader with a clearer and more
coherent picture of the remarkable developments in land law and conveyancing
which contemporary concerns have made necessary over the years. A better
understanding of this subject is, I believe, an essential part in the realization
of concrete land reforms in Kenya.

ACKNOWLEDGEMENT
In writing the book, I have incurred the usual debts which I now seek to pay. I
understand that it is a difficult task to properly acknowledge all those who have
contributed, in one way or another, to this book, research, model development
and assessment. However, I make an attempt here realizing that my list is bound
to be incomplete.
First of all, I am grateful to Dr. Ruth Aura-Odhiambo for her earnest
contributions and review of the several draft manuscripts whose unflagging
support kept this project on the fast track. I am indebted to Prof. Morris
Mbondenyi for fruitful discussions, advice and providing constructive comments
on the drafts of this book. I also wish to recognize and appreciate the effort,
hard work and support of Mathews Okoth, Esq. for the immense input by way of
research and envisioning a structure that would work during the preparation of
the material that resulted in this book. I also owe a deep debt of gratitude to
Collins Odhiambo Odundo who dedicated countless hours in carefully proof-reading,
editing the manuscript and providing invaluable conceptual contributions. Special
thanks to Aim Yoni, for encouragement and intellectual support.
I am also particularly grateful to Bella for providing copy-editing skills to
bear on the complexities of this book. I also benefited considerably from the
efforts and assistance of Katarina Juma in seeing the manuscript through the
press. I am also particularly grateful to the staff at Odhiambo & Odhiambo
Advocates and Prof. Ojienda & Associates who assisted me in such tasks as the
collection of court decisions, photocopying, printing and binding.

TABLE OF CASES
A
A Abdallah, Chairman, Donholm Phase 5 Residents’ Association and another v
Director General, National Environment Management Authority (NEMA) and another
Tribunal Appeal No NET/38/2009 .......... 229
Alex Kadenge Mwendwa v Grace Wangari Ndikimi and others Nairobi HCCC No. 2974
of 1991 ................................. 235
Ambale v Masolia (1986) KLR 241 .......... 26
Armstrong v Sheppard & Short Ltd (1952) 2 Q.B. 384 136
Auto Engineering Ltd v Gonella and another
(1978) KLR 248 .......................... 234
B
Ballard v Tomlinson [1885] 29 Ch D 115 .... 3
Barclays D.C.O. v Patel [1970] EA 89 .... 173
..................................... 187
 ..................................... 190
Baron Bernstein of Leigh v Skyviews and General Ltd
[1978] QB 479 ............................. 2
Blakeman v Associated Hotel Management Services Limited, Civil appeal number
45 of 1984 ............................... 11
Beatrice Wanjiru Kimani v Evanson Kimani Njoroge,
HCCC No. 1610 of 1999 .................... 95
C
Central London Commercial estates v Kato Kagaku
[1998] 4 All ER 948 ..................... 181
Chelsea Yacht & Boat Co. v Pope [2001] 1 WLR 1941 4
Chengo Katana Koi v Protus Evans Masinde [2013] eKLR 11
Coast Brick & Tile Works and others v Premchand Raichad
and another [1964] EA 187 ............... 206
Commissioner of Lands and another v Kithinji Murugu M’agere, Nairobi High Court
miscellaneous application number 395
of 2012 .................................. 71
Cuckmere Brick Co. Ltd v Mutual Finance
[1971] 2 All ER 633 .................... 213
D
David Thiongo t/a Welcome General Stores v Market Fancy Emporium Nairobi CA
Civ. Appli No. 74 of 2007 ............... 236
Debi Singh and others v Jagdish and others AIR 1952 All 710 198
Dixon v Esperance Bay Turf Club Inc. (2002) WASC 110 115
Dorman v Rodgers (1982) 148 CLR 365 ..... 115
Douglas Mwangi wa Kamotho and others v Chief Mwichuki
and the AG civil case number 113 of 1925 128
Dr. Simon W Chege v Paramount Bank of Kenya Limited Milimani Civil Suit No. 360
of 2001 ................................. 211
Duke of Sutherland v Heathcote (1892) 1 Ch 475 190
E
Eccon Construction & Engineering Ltd v
Giro Commercial Bank Ltd and another,
High Court civil case number 371 of 2003 206
Elijah Kipng’eno Arap Bii v Kenya Commercial Ltd,
Milimani Commercial Court Civil Case No. 324 of 2000 204
Elistone Ltd v Morris [1997] 1 WLR 687 .... 4
Embrey v Owen (1851) 6 Exch. 353 ........ 191
Equitorial Commercial Bank Limited and others v Retreat Villas Limited [2005]
eKLR .................................... 197
Eros Chemist v Trust Bank [2000] 2 EA 550213
Esiroyo v Esiroyo [1972] EA 388 .......... 10
F
Fina Bank Ltd v Ronak Ltd [2001] EA 54 .. 204
G
Githu v Ndete (1984) KLR 776 ............ 179
Githuchi Farmers Co. Ltd v Gichamba& another [1973] EA 8 9
Govindji and another v Sifa Insurance Company Ltd
[2003] KLR 466 ......................... 189
Guardial Singh Ghataurhael v The Delphis Bank Limited
[2003] LLR 2291 (CCK) ................... 207
 H
Harvey v Pratt [1965] 1 WLR 1025 ........ 122
Hassan HashiShirwa and another v Swaleh Mohamed
and others, Malindi ELCC No. 41B of 2012 . 76
Heptulla Brothers Ltd v Jambhai Jeshangbhai Thakore
[1965] 1 WLR 1025 ....................... 122
Hill v Midland Ry [1882] 21 Ch D 143 .... 184
Holland v Hodgson (1872) LR 7 CP 328 ...... 4
Hulme v Brigham [1943] KB 152 ............. 4
Hurst v Picture Theatres Ltd [1914] 1 KB 1136
I
Insurance Company of East Africa(“ICEA”) v
the Attorney-General and others Mombasa
HCCC No. 135 of 1998 (U.R.) ............. 119
Inwards v Baker [1965] 2 QB 29 .......... 138
Isaka Wainaina wa Gathomo and another v
Murito wa indangara and another EALR 102 127
J
James Mahinda and others v Director General, NEMA and another Tribunal Appeal
No. NET/15/2006 of 2007 ................. 224
James Ngugi Mbugua and another v Grace Wairimu MwithigaNairobi HCCC No. 1174 of
20002 (O.S.) ............................ 189
Josephat Ndung’u Gachchio v the Commissioner of Lands
LACT Case No. 34 of 2009 ................ 240
Jones and Jones Ltd v Ian Kervillar (1909) 2 Ch. 440 137
Joyce Wanjiku Kaguara v George Mburu and another
[2005]eKLR .............................. 95
...................................... 96
Judy Wanjiru Wainaina v Mathew Mbugua Waigwa,
Nairobi Civil Suit No. 1326 of 1990 ..... 120
K
Kaittany and another v Wamaitha (1995) LLR 2394 (CAK) 52
Kamau v Kamau (1984) KLR, 539 ........... 189
Kenya Commercial Finance Company Ltd v Ngeny
and another [2002] 1 KLR 106 ........... 205
Karanja Kariuki v Kariuki (1983) eKLR .... 26
Karanja Mbugua & another v Marybin Holding Co. Ltd
[2014] eKLR ............................... 9
Kasuve v Mwaani Investments Limited and others,
Civil Appeal No. 35 of 2002 ............. 182
Kelsen v Imperial Tobacco Co. (of Great Britain and Ireland) Ltd [1975] 2 QB
3342
Keppell v Bailey (1834) 2My&K 517 ....... 118
Kimani v Gikanga and another [1965] EA 73552
Kimani Ruchine v Swift, Rutherfold & Co Ltd
(1980) KLR 10 ........................... 183
Kimani wa Kabato v Kioi wa Nagi EALR 129128
Kinyua v Simon Gitura Rumuri,
Nyeri C.A. No. 265 of 2005 .............. 174
..................................... 183
Kobil Petroleum Limited v Almost Magic Merchants Limited Nairobi HCC App No.
931 of 2003 ............................. 233
Kyangavo v Kenya Commercial Bank Limited and another
[2004] 1 KLR 126 ........................ 209
..................................... 211
L
Labelle International Limited v Fidelity Commercial Bank [2003] 2 EA 541
207
Lace v Chandler [1944] KB 368 ........... 122
Lall v Jeypee Investments Ltd [1972] EA 512232
Lane v Capsey (1891) 3 Ch. 411 .......... 188
Leech v Schweder (1894) 9 App. Cases 463 185
Leigh v Taylor [1902] AC 157 .............. 4
Lezabar Pty Ltd v Hogan (1989) BPR 9498 . 116
Littledale v Liverpool College(1900) 1 Chp. 19 179
London & North Western Rail Co v Buckmaster
(1874) 10 LR Q.B 70 ..................... 121
Lowe v J.W. Ashmore Ltd (1971) Ch. 545 .. 190
Lydia Wanjiku Gathecha v Commissioner of Lands and LACT No. 37 of 2009 240
M
Maathai and others v City Council of Nairobi and others,
Civil Case No. 72 of 1994 ............... 224
Maranya v NBK Ltd [1995-98] 1 EA 177 .... 213
Mark Wachira and others v Kenya Road Services Ltd
Nairobi HCC (ELC) No. 1841 of 2007 ...... 235
Mason v Shrewsbury and Hereford Ry (1871) L.R. Q.B. 578 185
Mbugua Njuguna v Elijah Mburu Wanyoike and another,
CA No. 27 of 2002 ....................... 181
Metra Investments Limited v Gakweli Mohamed Warrakah Milimani HCCC No. 54 of
2006 (UR) ................................ 50
..................................... 202
Metropolitan Ry v Fowler (1892) 1 Q.B. 165185
Mohamed Ahmed Khalid (Chairman) and others v
Director of Land Adjudication and others,
Malindi ELCC No. 3 of 2013 ............... 59
...................................... 61
.................................. 84, 85
..................................... 149
Mohammed Gulamhussein Farzal Karmali and another v
C.F.C. Bank Limited and another [2006] eKLR 193
..................................... 194
..................................... 204
Mr. & Mrs Michale M. Njuguna versus the Commissioner of Lands) 240
Mugogo v Sihowa (1988) KLR 1 ............. 26
Mukuru Munge v Gilead Mwanyasi [2006] eKLR 4
Muraguri Githitho v Mathenge Thiongo,
Nyeri HCCC No. 17 of 2006 .............. 177
Mureithi v Attorney-General and others
[2006] 1 KLR (E & L), 707 ................ 28
N
Nakumatt Holdings Limited v Director General, NEMA
and another Tribunal Appeal No NET 10/02/2005 225
Narok County Council and another v NEMA and others Tribunal Appeal No NET/07 OF
2006 .................................... 227
Nathakal M Rai v Standard Chartered bank (K) Limited, Milimani Civil Case No.
830 of 1999 ............................. 211
Ndiema Samburi Soti v Elvis Kimtai Chepkeses Eldoret C.A. No. 136 of 2005
176
O
Obiero v Opiyo [1972] EA 227 ............ 10
Ol Loita Road Limited v Kenya Commercial Bank Limited Nairobi ELC No. 593 of
2010 ..................................... 49
..................................... 202
Omukaisi Abulitsa v Albert Abulitsa,
Kakamega HCCC No. 86 of 2005 (UR) ..........
P
Peter Karanja Mungai v Daniel Njoroge Kamau and others Nairobi Civil Suit No.
5869 of 1993 ............................ 120
Petty Wanjiku Kigwe versus the Commissioner of Lands LACT No. 36 of 2009
(Consolidated with LACT No. 35 of 2009 .. 240
Phillicery Nduku Mumo v Nzuki Makau [2002] eKLR 96
Pius Ngugi and others v Hellen Fear and others,
Nairobi ELCC No. 1321 of 2005 (as consolidated with
ELCC No. 424 of 2011 and ELCC No. 437 of 2011) 86
...................................... 87
Plenty v Seventh Day Adventist Church of Port Pirie
(1986) 43 S.A.S.R. 121 .................. 115
R
Re Sharp [1980] 1 All ER 198 ............ 136
Re Whaley (1908) 1 Ch 615 ................. 4
Rehorn v Barry [1956] 2 All ER 742 ...... 234
Republic v County Government of Kiambu and others [2014] eKLR 69
Republic thro’ Olum v Angungo and others (1988) KLR 529 173
Runda Coffee Estates v Ujagar Singh [1966] EA 564 121
S
S. Srinivasa Aiyangar and others v Radhakrishna Pillai
(1914) 26 MLJ 47 ....................... 198
Samwel Nyakenogo v Samwel Orucho Onyaru,
Kisumu CA No. 24 of 2004 ................ 179
..................................... 181
..................................... 182
Samwel Wainaina Muiruri v the award of the Commissioner of Lands LACT Case No.
20 of 2009 .............................. 238
Serah Mweru Muhu v Commissioner of Lands and others, Nairobi HC Pet. No. 413 of
2012 [2014] eKLR ..................... 70, 71
Simiyu v Housing Finance Company of Kenya Ltd
[2001] 2 EA 540 ......................... 207
..................................... 210
Sophia House Limited v Barclays Bank of Kenya [2005] eKLR 207
Spectrum Investment Co. v Holmes [1981] 1 WLR 221 181
Stanley Kahahu v the AG (1938) 18 KLR 5 . 127
Stephen Wambua Kithuka (Suing on behalf of Getrud Bint Ali
& Crispus Singo) v Abdul Karim Omar,
Malindi ELCC No. 92 of 2011 .............. 82
 ...................................... 84
T
Temo and others v Swaleh Misc. Civil Suit No. 155/1993
(OS) 1 KLR, 469 .......................... 53
Thomas v Sorrel (1673) Vough. 330 ....... 138
Trust Bank Limited v Eros Chemist Ltd and another,
Civil Appeal No. 133 of 1999 (UR) ....... 211
W
Waljee v Rose (1976) KLR 25 ............. 233
Wambugu v Kimani (1992) 2 KLR 292 ..........
Wambugu v Njuguna, Civil Appeal No. 10 of 1982 179
Wangari Maathai v The Kenya Times Media Trust
(1989) KLR 267 .......................... 224
Western Pumps Limited v Joseph Wainaina Iraya T/A Queen Chick Inn and another,
Milimani HCCC No. 186 of 2006 (UR) ....... 49
..................................... 202
Woollerton and Wilson Ltd v Richard Costain Ltd
[1970] 2 QB 334 .......................... 2
Zenith Investments (Torquay) Ltd v Kammins Ballrooms Co. Ltd (No. 2) 1971 1
W.L.R. 1032 ............................. 232

TABLE OF LEGISLATION
A
Agriculture Act (Cap 318);
........................................ 46
................................... s 167 83
................................... s 168 83
................................ s 168(3) 85
........................................ 150
C
County Governments Act No. 17 of 2012;
........................................ 54
................................... s 111 158
................................ s 111(2) 158
................................ s 111(4) 158
Constitution of Kenya
........................................ 107
........................................ 110
........................... Article 60(1) 29
........................ Article 60(1)(a) 113
........................... Article 61(2) 10
........................................ 29
........................... Article 62(1) 3
........................................ 29
........................... Article 62(2) 3
........................................ 29
........................................ 68
........................................ 69
........................................ 76
........................................ 149
........................... Article 62(3) 3
........................................ 30
........................................ 69
Constitution of Kenya – continued
........................................ 76
........................... Article 62(4) 30
........................................ 112
........................... Article 63(1) 30
........................... Article 63(2) 30
........................................ 32
........................... Article 63(3) 30
........................................ 32
.............................. Article 64 30
........................... Article 65(1) 30
........................... Article 65(2) 30
........................... Article 63(3) 30
........................... Article 63(5) 31
........................... Article 67(1) 54
........................... Article 67(2) 31
........................................ 67
........................ Article 67(2)(a) 69
........................................ 76
........................................ 112
........................ Article 67(2)(h) 76
........................ Article 67(2)(g) 77
........................................ 78
........................... Article 67(3) 69
........................ Article 68(c)(i) 31
.............................. Article 68 31
............................. Article 254 80
............................. Article 260 5
..................................... s 3 37
.................................... s 21 61
........................................ 74
.................................... s 22 61
........................................ 74
.................................... s 25 61
Constitution of Kenya – continued
........................................ 74
.................................... s 26 61
........................................ 74
................................ s 117(1) 23
................................ s 117(2) 23
................................ s 117(4) 23
................................ s 118(1) 24
................................ s 118(2) 24
Companies Act (Cap 486)
........................................ 169
Crown Lands Ordinance, 1902;
........................................ 15
........................................ 18
........................................ 36
........................................ 244
Crown Land Ordinance No. 12 of 1915;
........................................ 15
........................................ 44
........................................ 61
........................................ 74
........................................ 127
........................................ 142
........................................ 143
Crown Lands (Amendment) Ordinance, 1938
........................................ 19
E
East African (Lands) Order-in-Council, 1901;
........................................ 36
Environment and Land Court Act No 19 of 2011
........................................ 5
........................................ 31
........................................ 53
Environment and Land Court Act – continued
........................................ 154
..................................... s 3 154
Environmental Management and Co-ordination Act No. 8 of 1999;
........................................ 3
Environmental Management and Co-ordination (Wetlands, River Banks, Lake Shores
and Sea Shore Management) Regulations 2009;
........................................ 3
..................................... s 3 3
............................. s 142(1)(a) 3
G
Government Lands (Repealed) Act (Cap 280);
........................................ 14
........................................ 15
........................................ 19
........................................ 22
........................................ 40
........................................ 41
........................................ 50
........................................ 74
........................................ 105
........................................ 128
........................................ 160
........................................ 161
........................................ 162
........................................ 163
........................................ 164
 ........................................ 165
........................................ 195
..................................... s 3 20
........................................ 58
.................................. s 3(3) 19
..................................... s 9 59
Government Lands (Repealed) Act – continued
.................................... s 12 59
.................................... s 19 59
.................................... s 20 59
I
Indian Transfer of Property (Repealed) Act (1882);
........................................ 22
........................................ 50
........................................ 213
................................. s 58(a) 193
................................. s 58(b) 197
K
Kenya (Native Areas) Ordinance of 1926;
........................................ 58
L
Land Act No 6 of 2012;
........................................ 5
........................................ 31
........................................ 34
........................................ 53
........................................ 60
........................................ 84
........................................ 149
........................................ 188
........................................ 245
........................................ 246
........................................ 247
........................................ 249
........................................ 250
........................................ 253
........................................ 258
........................................ 262
Land Act – continued
........................................ 263
........................................ 264
........................................ 265
..................................... s 2 120
........................................ 121
........................................ 135
........................................ 193
............................... s 3(1)(c) 254
.................................. s 3(2) 254
..................................... s 4 254
 ........................................ 260
.................................. s 4(1) 248
.................................. s 4(4) 247
..................................... s 7 259
.................................. s 8(a) 77
.................................. s 9(1) 248
.................................. s 9(5) 248
.................................... s 10 262
................................. s 11(2) 77
................................. s 12(1) 72
................................. s 12(5) 72
.................................... s 14 247
................................. s 15(1) 7
........................................ 246
................................. s 15(2) 246
................................. s 17(1) 246
................................. s 17(3) 77
.................................... s 18 260
.................................... s 20 135
................................. s 20(1) 249
.................................... s 27 249
........................................ 260
................................. s 27-30 249
Land Act – continued
................................. s 28(1) 78
................................. s 28(2) 78
................................. s 28(3) 78
................................. s 32(1) 254
.............................. s 36(1)(b) 188
.................................... s 38 249
.................................... s 44 261
.................................... s 45 261
.................................... s 47 261
.................................... s 48 261
.................................... s 50 264
.................................... s 53 254
.................................... s 54 264
................................. s 56(a) 123
................................. s 69(1) 126
.................................... s 70 126
................................. s 89(1) 215
........................................ 216
.................................... s 90 213
................................. s 90(1) 213
........................................ 217
........................................ 219
................................. s 90(2) 213
........................................ 219
................................. s 90(3) 216
........................................ 219
 .............................. s 90(2)(a) 214
.............................. s 90(2)(b) 214
.............................. s 90(2)(c) 214
.............................. s 90(2)(d) 214
.............................. s 90(2)(e) 214
.............................. s 90(3)(a) 214
........................................ 216
.............................. s 90(3)(b) 214
Land Act – continued
........................................ 215
.............................. s 90(3)(c) 214
.............................. s 90(3)(d) 214
........................................ 216
.............................. s 90(3)(e) 214
.............................. s 90(4)(a) 214
.............................. s 90(4)(b) 214
.................................... s 92 217
................................. s 92(2) 217
.................................... s 93 218
.................................... s 94 218
................................. s 96(1) 216
................................. s 96(2) 217
................................ s 107(1) 77
................................... s 112 77
................................... s 113 77
................................... s 134 78
........................................ 81
........................................ 83
................................... s 135 83
................................... s 135 188
................................... s 159 254
................................... s 161 255
................................... s 162 165
Land Acquisition (Repealed) Act (Cap 295);
........................................ 6
........................................ 39
........................................ 241
..................................... s 2 6
..................................... s 7 237
..................................... s 9 237
.................................... s 11 237
.................................... s 29 237
Land Adjudication Act (Cap 284);
........................................ 5
........................................ 6
........................................ 38
........................................ 39
........................................ 60
........................................ 82
........................................ 84
 ........................................ 85
........................................ 100
........................................ 148
........................................ 149
........................................ 150
........................................ 153
..................................... s 2 5
........................................ 6
..................................... s 6 85
........................................ 150
..................................... s 9 85
........................................ 150
.................................... s 10 38
................................. s 29(3) 85
........................................ 150
.................................... s 31 150
Land Consolidation Act (Cap 283);
........................................ 39
........................................ 43
........................................ 100
........................................ 153
.................................... s 2. 5
Land Control Act (Cap 302);
........................................ 6
........................................ 41
........................................ 157
........................................ 227
Land (Group Representatives) Act (Cap 287);
........................................ 21
........................................ 39
........................................ 92
........................................ 151
Land Planning Act (Cap 303);
........................................ 5
............................ Regulation 3 5
Land Registration Act No 3 of 2012;
........................................ 5
........................................ 31
........................................ 33
........................................ 41
........................................ 164
........................................ 165
..................................... s 2 201
..................................... s 6 80
............................... s 7(1)(a) 80
............................... s 7(1)(b) 80
................................. s 17(3) 77
........................................ 53
.................................... s 26 10
........................................ 31
 ........................................ 33
........................................ 156
.................................... s 28 33
........................................ 116
.................................... s 37 201
................................. s 43(1) 203
.................................... s 46 165
........................................ 166
.................................... s 44 203
........................................ 205
................................. s 44(1) 202
Land Registration Act – continued
................................. s 44(2) 202
................................. s 44(3) 202
................................. s 44(4) 203
.............................. s 44(4)(a) 203
.............................. s 44(4)(b) 203
................................. s 44(5) 205
.................................... s 49 139
................................. s 54(3) 125
........................................ 168
................................. s 54(4) 125
........................................ 168
................................. s 55(b) 80
.................................... s 56 201
........................................ 205
................................. s 56(5) 201
................................. s 56(4) 80
.................................... s 59 201
.................................... s 60 132
................................. s 61(1) 133
.................................... s 67 132
................................. s 91(4) 131
................................ s 93(3) 201
................................. s 93(4) 201
................................... s 106 165
................................ s 106(1) 200
................................ s 106(2) 200
........................................ 209
................................ s 106(3) 209
................................... s 107 165
Land Titles Ordinance No. 11 of 1908;
........................................ 36
........................................ 56
........................................ 142
Land Titles (Repealed) Act (Cap 282);
........................................ 22
........................................ 50
........................................ 160
........................................ 161
 ........................................ 162
........................................ 163
........................................ 165
........................................ 193
Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap 301);
........................................ 233
.................................... s 11 231
Law of Contract Act (Cap 23);
........................................ 48
........................................ 49
.................................. s 3(3) 9
........................................ 48
........................................ 49
........................................ 50
........................................ 202
Limitation of Actions Act (Cap 22)
........................................ 179
........................................ 180
........................................ 181
........................................ 182
..................................... s 3 52
..................................... s 7 174
.................................. s 9(1) 179
........................................ 184
.................................... s 13 184
.................................... s 15 180
.................................... s 22 190
.................................... s 32 186
........................................ 189
Limitation of Actions Act – continued
.................................... s 38 180
........................................ 184
................................. s 38(1) 181
M
Matrimonial Property Act No 49 of 2013;
........................................ 54
........................................ 97
........................................ 134
..................................... s 8 97
National Land Commission Act No 5 of 2012;
........................................ 31
........................................ 53
........................................ 67
........................................ 107
.................................. s 5(2) 70
............................... s 5(2)(a) 72
........................................ 76
............................... s 5(2)(b) 76
........................................ 80
............................... s 5(2)(d) 77
............................... s 5(2)(e) 69
.................................... s 32 87
................................. s 32(1) 85
........................................ 86
.............................. s 33(1)(c) 80
N
National Land Policy, Sessional Paper No. 3 of 2009;
........................................ 34
........................................ 65
........................................ 67
........................................ 90
........................................ 105
National Land Policy – continued
........................................ 253
................................... s 151 148
Native Land Trust Ordinance, 1930;
........................................ 19
........................................ 36
Native Land Trust Ordinance, 1938;
........................................ 36
Native Land Tenure Rules (1956)
........................................ 14
........................................ 129
P
Physical Planning Act (Cap 286) Laws of Kenya;
........................................ 41
........................................ 60
........................................ 228
............................... s 5(1)(b) 75
.................................... s 29 157
........................................ 158
R
Registered Land (Repealed) Act (Cap 300);
........................................ 5
........................................ 17
........................................ 22
........................................ 43
........................................ 45
........................................ 84
........................................ 94
........................................ 106
........................................ 147
........................................ 152
........................................ 156
........................................ 159
Registered Land (Repealed) Act – continued
........................................ 160
..................................... s 3 5
.................................... s 27 10
 ........................................ 58
........................................ 156
.................................... s 28 10
........................................ 58
........................................ 116
........................................ 156
................................ s 143(1) 94
Registration of Documents Act (Cap 285)
........................................ 44
........................................ 45
........................................ 50
........................................ 160
........................................ 163
..................................... s 5 45
Registration of Titles (Repealed) Act (Cap 281);
........................................ 22
........................................ 43
........................................ 50
........................................ 116
........................................ 156
........................................ 160
........................................ 162
........................................ 163
........................................ 165
.................................... s 23 58
................................. s 23(1) 116
.................................... s 62 43
S
Sectional Properties Act No 21 of 1987;
........................................ 22
Sectional Properties Act – continued
........................................ 125
........................................ 62
........................................ 167
........................................ 169
..................................... s 2 170
..................................... s 4 168
................................. s 17(2) 169
................................. s 17(5) 169
Stamp Duty Act (Cap 480)
........................................ 166
..................................... s 5 165
................................... s 10A 166
T
Trust Land Act (Cap 288);
........................................ 22
........................................ 40
........................................ 42
........................................ 59
 ........................................ 60
........................................ 92
.................................... s 53 61
W
Water Act (Cap 372) Laws of Kenya
........................................ 2
........................................ 47
..................................... s 3 2
..................................... s 5 2
..................................... s 6 2
Wildlife (Conservation and Management) Act
........................................ 20

CHAPTER ONE

APPRECIATING THE CONCEPT OF LAND IN KENYA

1.1 DEFINING LAND
Land incorporates more than something physical – the soil, the grass, the trees,
the buildings. The definition of land includes both corporeal and incorporeal
hereditaments.1 A hereditament is a right that is heritable, that is, something
which can be passed by way of descent to heirs.2 In other words, it is the nature
of right involved in the ownership of land. For instance, land includes ownership
of a house (corporeal hereditament) and a right of way over someone else’s house
(incorporeal hereditament). As early as the 13th Century, the extent to which
land could be owned was already a live debate.3 This probably explains the origin
of the maxim Cuis est solum eius est usque ad coelum et ad inferos, which means
that the owner of land owns everything up to the sky and down to the centre of
the earth.4 The application of the maxim has, however, been substantially
qualified in contemporary jurisprudence on land ownership.5 For instance, a land
owner’s right in the airspace extends only to such a height as is reasonably

1 Incorporeal property is a right issuing out of a thing, whether real or personal, or concerning or
annexed to, or exercisable on the same. It is not the thing corporate itself, which may consist of land,
houses, jewels, or the like. It is something collateral to the corporate thing. Incorporeal hereditaments are
essential or useful to the enjoyment of some particular corporeal property, for instance, ways, watercourses,
pews; or they could be independent of enjoyment of any such corporeal estate such as a profit, a prendre or an
easement. Incorporeal hereditaments are derived from obligation imposed by the law ex necessitate, as natural
watercourses or ways; or can be created by grant under seal, or by custom, or prescription which supposed a
grant. See, George Blaxland (2006), A Digest of Principles of English Law Arranged in the Order of the Code
Napoleon (London: Adamant Media Corporation), p. 358. See also Kevin J. Gray & Susan Francis Gray (2007),
Land Law (Oxford: Oxford University Press), pages 3 and 4.

2 Edward Hector Burn & John Cartwright (2011), Cheshire and Burn’s Modern Law of Real Property (Oxford:
Oxford University Press), page 7.

3 See generally, Marjorie Chibnall (1999), The Debate on the Norman Conquest (Manchester: Manchester
University Press).

4 The maxim Cuis est solum eius est usque ad coelum et ad inferos was coined by Accursius in the thirteenth
Century.

5 Paul Finkelman & Roberta Sue Alexander (eds) (2012), Justice and Legal Change on the Shores of Lake
Erie: A History of the United States District Court for the Northern District of Ohio (Ohio: Ohio University
Press), page 214.
necessary for the ordinary use and enjoyment of the land.6 In the words of Justice
Griffith, the qualification is necessitated by the need to balance the rights of
an owner to enjoy the land against the rights of the general public to take
advantage of all that science now offers in the use of airspace.7 This means that
beyond height necessary for the ordinary use of land, the landowner has no
superior right than any other member of the public. This explains why it is a
defence for an aircraft to fly at such a height which is reasonable under certain
circumstances over someone else’s land. However, the qualification of the maxim
does not permit interference with legitimate rights of a landowner.8
Secondly, the right of a landowner to extract water are controlled by both
statutes and common law. The Water Act,9 for instance, vests water resource in
the State.10 As a general rule, the right to extract the water resources vests
with the Cabinet Secretary in charge of water resources, unless the resource is
alienated.11 Indeed, section 6 of the Water Act is more succinct in providing
that a conveyance of itself does not confer property rights in a water resource.
The section states:
[N]o conveyance, lease or other instrument shall (be) effectual to convey, assure,
demise, transfer or vest any person any property or right or any interest, privilege
in respect of any water resource, and no such property, right, interest or privilege
shall be acquired otherwise than under this Act.
In terms of water resource use, the Environmental Management and Coordination
Act12 limits the manner in which a landowner can use a water resource by creating
water pollution related crimes.13 These include prohibiting discharge of effluent
into an unlicensed sewerage system; as well as prohibiting discharge of dangerous
materials, substances or oil into water.14 Anyone can enforce a right to clean
and healthy environment as against a landowner.15 The Constitution of Kenya, 2010,
bolsters the foregoing provisions by defining public land to include water
resources.16 Such land vest in and is held by the national government in trust
for the people of Kenya and administered on behalf of the Kenyan people by the
National Land Commission.17

6
Ibid.

7 Baron Bernstein of Leigh v Skyviews and General Ltd [1978] QB 479.

8 See, Kelsen v Imperial Tobacco Co (of Great Britain and Ireland) Ltd [1975] 2 QB 334 in which an action
of the defendant in allowing an advertisement to overhang the plaintiff’s premises amounted to trespass. In
Woollerton and Wilson Ltd v Richard Costain Ltd [1970] 2 QB 334, the action of the defendant in allowing the
jib of a crane to swing over the plaintiff’s property was found to be trespass.

9 Water Act (Chapter 372) Laws of Kenya.

10 Ibid, Section 3.

11 Ibid, section 5.

12 Environmental Management and Co-ordination Act, No. 8 of 1999.

13 Ibid, section 142(1)(a). See also, Environmental Management and Co-ordination (Wetlands, River Banks,
Lake Shores and Sea Shore Management) Regulations, 2009.

14
Ibid, section 142(1)(a). See also the Environmental Management and Co-ordination (Wetlands, River
Banks, Lake Shores and Sea Shore Management) Regulations, 2009.

15 Ibid, section 3.

16 Constitution of Kenya, article 62(1).

17 Ibid, article 62(3).

 Over time, common law principles that limit the applicability of the cujus
est solum doctrine have been developed in relation to water resource use. For
instance, water percolating underneath the land and not contained in a defined
channel, is not capable of ownership, until such moment as it is appropriated,
when it becomes the property of the person appropriating it.18 Additionally,
whereas the cujus est solum maxim states that a landowner owns everything to the
centre of the earth, in terms of article 62(3) of the Constitution of Kenya,
ownership of minerals is vested in the national government.
The second approach to defining land has been by relating land to what is
attached to it. This has been enunciated by the maxim quicquid plantatur solo
solo cedit, which means that the surface, buildings or parts of building and
whatever is attached to the land becomes part of the land. But this approach
raises complex legal questions as to what constitutes fixtures thus part of
realty, and those which are not, thus remaining personalty and fittings. Two
tests have consequently been employed in distinguishing fixtures from fittings.
The first test relates to the degree of annexation. Fixtures have been
described as comprising those material objects which as a matter of law, merge
with the freehold either by reason of their physical bond with existing land or
by reason of their highly purposive juxtaposition with such land.19 In other
words, if an object is annexed to the land, prima facie, it is a fixture.20 This
explains why spinning looms bolted to the floor of a factory attached to the land
other than by their own weight21 were held to be a fixture, whereas a heavy
printing press which stood on the floor without any attachment other than the
force of gravity22 and a houseboat moored to the bank, and which moved up and
down with the tide,23 were held to be a fitting. With the advancement of
technology, this test for distinguishing fixtures from fittings has become less
helpful.
The second test for distinguishing a fixture from a fitting is whether a
chattel has been affixed to the land for the better enjoyment of the object as
a chattel, or for a more convenient use of the land.24 But this also raises
confusion. An object may constitute a fixture in one case, but a chattel in
another. In Leigh v Taylor,25 for instance, tapestries nailed onto a wall were
held not to be fixtures, but in Re Whaley,26 the same objects were held to be
fixtures. The House of Lords has since confirmed that what is of primary
importance is the intention involved.27 It is important to distinguish whether
the object was intended for the use or enjoyment of the land, in which case it

18 Ballard v Tomlinson (1885) 29 Ch D 115.

19 Elitestone Ltd v Morris [1997] 1 WLR 687.

20 See, Mukuru Munge v Gilead Mwanyasi [2006] eKLR, where the Judge stated that it is a time honoured
principle of real property law that land includes the fixtures thereon. That principle is adequately summarised
in the latin maxim –quicquid plantatur solo, solo cedit, which means that whatever is affixed to the soil
belongs to the soil.

21 Holland v Hodgson (1872) LR 7 CP 328.

22 Hulme v Brigham [1943] KB 152.

23 Chelsea Yacht & Boat Co. v Pope [2001] 1 WLR 1941.

24 See, Blackburn, J in Holland v Hodgson (1872) LR 7 CP 328.

25 Leigh v Taylor [1902] AC 157.

26 Re Whaley (1908) 1 Ch 615.

27 See, Elistone Ltd v Morris [1997] 1 WLR 687.

passes as a fixture, or for the more convenient use of the object itself, in
which cases it passes as a fitting.
With the foregoing principles in mind, various statutes have, therefore,
provided definition for land. Article 260 of the Constitution of Kenya defines
land to include:
(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 air space above the surface.

It is the constitutional definition of land that the Land Act28, the Land
Registration Act (LRA)29 and the Environment and Land Court Act (ELCA)30 adopt.
Thus, whereas the definitions of land under the previous constitutional era in
Kenya were varied and often inconsistent with each other, the Constitution now
defines land with some element of certainty.
The Registered Land Act (RLA) (Repealed) defined land as ‘‘land covered with
water, all things growing on land and buildings and other things permanently
affixed to land.”31 Under the Land Adjudication Act (LAA), land includes ‘‘things
growing on land and buildings and other things permanently affixed to land.’’32
The Land Consolidation Act (LCA) defines land to include land covered with water,
any interest or estate in land other than a charge, all things growing thereon,
buildings and other things permanently affixed thereto.33 Regulation 3 of the
Land Planning Act (LPA) defines land to include land covered with water, any
buildings or things attached to the land covered with water and any interest or
easement into or over land.34 The Land Acquisition Act (LAA) (Repealed) defined
land to include all land, whether covered with water or not, and things attached
to the land or permanently fastened to anything attached to the land and any
estate, term, easement, right or interest in or arising out of land.35 The Land
Control Act on its part defines land as including an estate, interest or right
to land.

1.2 LAND LAW AND OTHER DISCIPLINES

Land law may be defined as the form of law that deals with the rights of usage,
alienation and the ultimate right to exclude others from land. In essence, the
multifaceted nature of land law means that this subject is concerned in a general
sense with how people own, occupy and use land. It embraces not only the
commercial relationships which connect businesses to their premises and farmers
to their farms, but also the most intimate and private of legal relationships
which connect people to their homes. Land law may also mean the science of all

28 No 6 of 2012.

29 No 3 of 2012.

30 No 19 of 2011.

31 Registered Land Act (Chapter 300) (Repealed), section 3.

32 Land Adjudication Act (Chapter 284), section 2.

33 Land Consolidation Act (Chapter 283), section 2.

34 Land Planning Act (Chapter 303), Development and Use of Land (Planning) Regulations, Regulation 3.

35 Land Acquisition Act (Chapter 295) (Repealed), section 2.

legal norms incidental to the research on adjusting the relation between person
and land.36

1.2.1 Land Law and Conveyancing

Conveyancing is the process by which legal title to property is transferred.37 It
can also be defined as the act or business of drafting and preparing legal
instruments, especially those (such as title deeds or leases) that transfer an
interest in real property.38 Butt defines it as the art or science of preparing
documents and investigating title in connection with the creation and assurance
of interest in land.39
Conveyancing rests and has been built upon the three foundations of Land Law,
Contract Law and Equity and Trusts.40 Land Law defines and details the estates
and interests that will form the subject matter of all conveyancing transactions.
It, therefore, follows that without an understanding of land law, it is difficult
to grasp Conveyancing both in theory and practice.41 According to Walker, “you
can study Land Law without Conveyancing, but not Conveyancing without Land Law.”42
Land Law can also be considered as that part of the general law that regulates
the allocation of rights and obligations in relation to “real” (or immovable)
property while Conveyancing on the other hand is “the application of the law of
real property in practice”.43 It is imperative to note that due to the inextricable
nexus between the two branches of law, it is often difficult to distinguish them.
It can safely be argued that real property is static while Conveyancing is
dynamic.44

1.2.2 Land Law and Environmental Law

Environmental Law is principally concerned with ensuring the sustainable
utilization of natural resources according to a number of fundamental principles
developed over the years through both municipal and international processes. In
an ideal setting, the utilization of land and land-based resources should adhere
to these principles, which are sustainability, intergenerational equity,
principle of prevention, the precautionary principle, the polluter pays
principle, and public participation.45

36 Land Adjudication Act (Chapter 284), section 2.

37 Abbey Robert and Richards Mark, (2000) A practical approach to Conveyancing, (3 ed), (London: Blackstone
Press Limited London) page 1.

38 Brayan A Garner, Black’s Law Dictionary, (8 ed), Thomson West, USA, 2004, page 358.

39 Brayan (ibid)

40 JM Halliday, Conveyancing Law and Practice (1 ed),1985) paragraph 1-01;( 2 ed)1997,ed 1 J S Talman)
paragraph 1-01 at page 2.

41 Ojienda Tom, 2008 Conveyancing Principles and Practice, Law Africa page 2.

42 Walker B, Conveyancing, (2 ed), Blackstone Press Limited London,1995,pages 1-2

43 Robert Maggarry and MP Thompson, Megarry’s Manual of the Law of Real Property,(7 ed,), Sweet and Maxwell
Limited 1993, page 125.

44 Ojienda, page 3.

45 David Hunter, James Salzman and Durwood Zaelke, 2002 International Environmental Law and Policy (New
York: Foundation Press, (2 ed.) 379-438.
1.2.3 Land Law and Chattels Transfer
Chattels are personal possessions that have no connection with the land. They,
therefore, remain in the possession and ownership of the seller when the landowner
sells their land, and the landowners can take those items with them. In other
words, chattels mean any movable property that can be completely transferred by
delivery. The movable properties may include motor vehicles among others.

1.2.4 Land Law, Equity and Trust Law

Equity is the name given to the set of legal principles, in jurisdictions
following the English common tradition, which supplement strict rules of law
where their application would operate harshly. In civil legal systems, broad
“general clauses” allow judges to have similar leeway in applying the code.46
Equity is commonly said to “mitigate the rigor of common law”, allowing courts
to use their discretion and apply justice in accordance with natural law.
The Law of Trusts is the offspring equity. The historical development of
English law is marked by the existence of a series of different institutions over
time.47 In common law legal systems, a trust is a relationship whereby property
(real or personal, tangible or intangible) is held by one party for the benefit
of another. A trust conventionally arises when property is transferred by one
party to be held by another party for the benefit of a third party, although it
is also possible for a legal owner to create a trust of property without
transferring it to anyone else, simply by declaring that the property will
henceforth be held for the benefit of a beneficiary.
A trust is created by a settlor (archaically known, in the context of trusts
of land, as the feoffor to uses), who transfers some or all of his property to
a trustee (archaically known, in the context of land, as the feoffee to uses),
who holds that trust property (or trust corpus) for the benefit of the
beneficiaries (archaically known as the cestui que use, or cestui que trust).48
In the case of the self-declared trust, the settlor and trustee are the same
person. The trustee has legal title to the trust property, but the beneficiaries
have equitable title to the trust property (separation of control and ownership).
The trustee owes a fiduciary duty to the beneficiaries, who are the “beneficial”
owners of the trust property.49
The trust is governed by the terms under which it was created. The terms of
the trust are most usually written down in a trust instrument or deed. The terms
of the trust must specify what property is to be transferred into the trust
(certainty of subject-matter), and who the beneficiaries will be of that trust
(certainty of objects). It may also set out the detailed powers and duties of
the trustees (such as powers of investment, powers to vary the interests of the
beneficiaries, and powers to appointment of new trustees). The trustee is obliged
to administer the trust in accordance with both the terms of the trust and the
governing law. In Githuchi Farmers Co Ltd v Gichamba and another,50 the Court
stated in no uncertain terms that the creation of a trust is a controlled
transaction.51

46 Glendon MA et al. (2008). Comparative Legal Traditions in a Nutshell, 3rd edition, pages 142–143.

47 J E Penner, The Law of Trusts (6 edition) Oxford Publishers, page 1.

48 Ibid.

49 A trustee may be either a natural person, or an artificial person (such as a company or a public body),
and there may be a single trustee or multiple co-trustees, There may be a single beneficiary or multiple
beneficiaries. The settlor may himself be a beneficiary.

50 [1973] EA 8.

51 Tudor Jackson, The Law of Kenya (3rd edition) at page 316.

1.2.5 Land Law and Contract Law
A contract is an agreement giving rise to obligations which are enforced or
recognised by law. The factor which distinguishes contractual duties from other
legal obligations is that they are based on the agreement of the contracting
parties.52 It is trite law that any transfer of title of land or any form of
disposition in land must be preceded by a sale agreement which must be reduced
in writing into the form of a contract between the vendor and the purchaser.53
Contracts and the sale of land are so much part and parcel of the whole system
of conveyancing that they have many peculiarities drawn from the Land Law.54

1.3 OWNERSHIP, POSSESSION AND TITLE TO LAND

1.3.1 Ownership of Land

The concept of “ownership” and the concept of property are inextricably
intertwined. It has been argued that all property arises from ownership.55
Ownership is the right to enjoy and dispose of something in an absolute manner
and equates it to dominium; ownership and possession are absolute jural
relationship between a person and a thing.56 In Kenya, there are three modes of
ownership of land, viz; individual ownership, communal ownership and public
ownership.57
The High Court of Kenya has at times ruled that registration extinguishes
customary ownership to land and vests in the registered proprietor absolute and
indefeasible title. This, the Court ruled, was the import of sections 27 and 28
of the Registered Land Act. (Repealed) 58 Indefeasibility of title is now expressed
in section 26 of the Land Registration Act.59 In other instances, Courts have
held that registration of title was never meant to disinherit people who would
otherwise be entitled to their land. The court on these occasions imposed the
duty of a trust upon the registered proprietor. In so doing the Court used the
device of a trust as known in English Law. Yet in other instances, Courts came
up with a hitherto unknown notion of an institution it called “customary trust”.60

1.3.2 Possession of Land

52 G.H Treitel, The Law of Contact, (11 edition) Sweet and Maxwell.

53 See the case of Karanja Mbugua & another v Marybin Holding Co. Ltd [2014] eKLR,the learned Judge
Nyamweya stated that:“It is settled law that no action may be brought upon any contract for the sale or
disposition of land, unless that agreement upon which the action is brought, or a memorandum or note of it is
in writing and signed by the party to be charges or by some other person authorized by him or her. This
requirement is found in section 3(3) of the Law of Contract Act. There is no special form in which the
memorandum or contract in writing needs to be in, and indeed it can be formed by more than one document.”

54 Megarry and Wade, The Law of Real Property. (4 edition) Stevens and Sons Limited: London 1975.

55 See Jean Jacques Rousseau; Discourse on Inequality; Quoted in HWO Okoth-Ogendo; Teaching Manuals on
Property Law Vol. 1.

56 Ojienda, supra, page 7.

57 Article 61(2) of the Constitution of Kenya 2010.

58 See the example of Obiero v Opiyo [1972] EA 227; and Esiroyo v Esiroyo [1972] EA. 388.

59 Number 3 of 2012.

60 Supra, Smokin Wanjala, page 35.

The understanding and definition of possession largely remains contentious.61
Justice Madan in the case of Blakeman v Associated Hotel Management Services
Limited stated that, “possession is a teasing topic whenever it arises. It does
not hold one straightforward meaning; it has various meanings different in
different situations so that the ownership of property cannot be affixed with
encumbered ease.”62

1.3.3 Title to Land

Title is the set of facts upon which a claim to a legal right or interest is
founded.62 It can exist even when there are no pre-existing legal interests or
right vested in a person who claims to have title.63 Title can also be said to be
a set of a shorthand term used to denote facts ,which if proved, will enable a
plaintiff to recover possession of a thing.64 Salmond states that title is a de
facto antecedent, of which the right is the de jure consequent. 65

1.4 ORIGIN, DEVELOPMENT AND LEGISLATIVE TRANSFORMATION OF LAND LAW

The law of property in land emerged hot on the heels to the emergence of civil
society. Jean Jacques Rousseau notes that the emergence of civil society was
precipitated by the birth of the concept of property ownership. He writes thus,
“the first person having enclosed a piece of ground, bethought himself saying,
“this is mine” and found a people simple enough to believe him, was the real
founder of civil society.” 66
The historical evolution of landholding in Kenya should be understood against
the background of colonialism as a phase of capitalist development.67 The major
imperialist powers, mainly France, Britain and Germany, met in Berlin in the
1884-85 Berlin Conference and took a conscious decision to peacefully divide
Africa amongst them and thus avoid the “scramble for Africa”. 68
The declaration of the protectorate status over Kenya by the British
colonialists in 1885 was followed by a systematic and “legal” process of
alienating large tracts of land and dispossessing indigenous people of their
land. 69 The British government needed to predicate its actions in the colonies
on law, but the declaration of a protectorate did not suffice to confer legal
jurisdiction for the alienation of land. This was because of an opinion that had
been given by the law officers of the Crown in 1833 concerning this question.70

61 Supra, Ojienda, page 8.

62 See the example of Chengo Katana Koi v Protus Evans Masinde [2013] eKLR, where it was held A title
deed is an end product and where there are competing interests over the same land, it is not enough for one to
just state that he holds a title deed which is absolute and indefeasible. One has to show the processes that
were followed in the acquisition of the title deed so as to entitle him/her to the land to the exclusion of
other claimants.

63 Ojienda, supra.

64 FH Lawson and B Rudden, The Law of Property, (2 edition) (1982) at page 44.

65 Ojienda, supra, page 9.

66 Jean Jacques Rousseau, Discourse on Inequality, quoted in HWO Okoth Ogendo, Teaching Manuals on Property
Law, Volume 1.

67 Smokin C. Wanjala (ed) Essays on Land Law: The Reform Debate in Kenya Tim O. Mwenesi: The Centrality
of land in Kenya: Historical Background and Legal Perspective. Page 3.

68 Ibid, Smokin, page 4.

69 Ibid, Smokin, page 27.

70 Ibid.
Despite this setback, certain deliberate steps had, however, been taken by the
colonial power, for purposes of attaining this alienation, notably the extension
of the Indian Land Acquisition Act of 1894 in 1896, to the ten-mile Coastal strip
so as to enable the colonial government, to acquire land for public purposes.
However, serious and sustained efforts in land acquisition started with the
delivery of another opinion by the law officers in 1899. The effect of this
opinion was to remove the impediment which had been put in place by the 1833
opinion. The 1899 opinion held that the earlier one was only valid where the
protectorate in question had “a settled form of government”. In the case of the
East African Protectorate which included Kenya, they argued that there was no
settled form of government and, therefore, her majesty could obtain radical title
to the land.71
Through the extension of foreign laws to the protectorate and the promulgation
of Orders in Council and Ordinances, the colonial authorities acquired all lands
in the protectorate on behalf of Her Majesty’s government. In 1887, the Sultan
handed over the administration of the coastal strip to the British East Africa
Company on concession for fifty years to administer as well as collect revenue.
The Company was later awarded the royal charter by the British Crown in 1888 and
became the Imperial British East Africa Company (IBEAC) and was empowered to
administer the British sphere of influence beyond the coastal strip.
On the 10-mile coastal strip, the colonial regimes recognised the claims of
the Sultan of Zanzibar. Only his ‘‘subjects’’ – mainly those with some ancestral
links outside Kenya - could register land. This meant that up to 25% of the
indigenous ‘‘Mijikenda’’ population were turned into landless ‘‘squatters,’’
being unable to register the land that they had lived in for generations.72
Land was alienated from customary systems, usually without compensation, for
the use of white settlers, who relied on African labour. Africans were restricted
to “native reserves” that formed the basis of ethnically-defined administrative
units, which are the precursors of today’s districts and locations. By 1934,
European settlers, who represented less than a quarter or one percent of the
population at that time, controlled about a third of the arable land in the
country.73
Settlers came to realize that provided the natives were insecure in their own
land, the security of the White Highlands as a European settlement would always
be doubtful. As a consequence, the Kenya Land Commission was set up to advise
the government on land policy.74
This Commission completed its report in 1934 and concluded that Africans had
little (if any) claim to the Highlands and further, if there were any claims at
all, compensation ought to be paid rather than giving the land to the claimants
and even further, that upon such payment, all customary rights should be
extinguished forever.
It recommended that the settlers’ security of ownership of the White Highlands
be guaranteed vide an Order-In-Council. This was done in 1939 vide the Kenya
(Highlands) Order-In-Council. As a corollary, the Kenya (Native Areas) Order-In-
Council was also enacted in the same year. It set up a newly constituted Native

71
Ibid.

72 Kanyinga, K. Struggles of Access to Land. the ‘squatter question’ in coastal Kenya. Danish Institute
for International Studies. CDR Working Paper 98.7 June 1998.

73 Berman, B., Control and Crisis in Colonial Kenya: the Dialectic of Domination. James Currey Publishers,
1990, Page 189 note 18.

74 Otherwise known as the Carter Commission.

Trust Board.75 This Board was to hold trust land for the natives. The same Order-
In-Council redefined Crown Land by amending the definition of “land” in the
Government Lands Act (Repealed) (1915).76
In 1938, the Native Lands Trust Ordinance was enacted (on the recommendation
of the Carter Commission). The rules made thereunder, that is, the Native Land
Tenure Rules (1956) provided details of the legal regime for the administration
of African Reserves. Under the stated rules, communal or familial ownership (as
opposed to individual ownership) was recognized – the latter form of ownership
being stranger to customary law.
Every ethnic group in Kenya experienced land losses, though some communities
lost more than others. For example, in 1904 the Maasai were moved from their
preferred grazing grounds in the central Rift Valley, to two ‘‘reserves’’, and
then in 1911 one of these reserves was again moved, against the wishes of the
pastoralists.77 The Maasai lost more than half of their customary territory. The
Kikuyu was another community hard hit by excisions of land, such as the 60,000
hectares converted to European coffee farms in Kiambu. This was exacerbated by
the particular speed of commercialization of the Kikuyu economy, which soon led
to the emergence of a wealthy landowning class, to the detriment of larger poor
and landless classes.78
The period of colonialism was characterized by three main events, that is,
alienation of land, imposition of English property law and transformation of
customary land law and tenure. These three phases in colonial history were the
womb from which our land law was born. 79
Right from the time of the Berlin Conference which set in motion the
partitioning of Africa, it was clear that the reasons and concerns of colonialism
were economic rather than strategic as has been argued by certain apologists.
For instance, Mungeam advances the thesis that colonial occupation of East Africa
was a function of international diplomacy.80 African (Lands) Order-in-Council,
1901, in which the revised opinion of 1899 was incorporated, and the Crown Lands
Ordinance of 1902, were the first serious legislative provisions for land
alienation.81 The 1915 Crown Lands Ordinance marked the complete disinheritance
of the native Kenyans from their land by colonial authorities. From then on,
there was to be a systematic and thorough imposition of English property law and
tenure in agrarian relationships in the colony.82
For the first time the theory of eminent domain was extended to property
relations in Kenya. The idea that land belonged to an overlord who could grant
it to his subjects was inherent in the Crown Lands Ordinance. The Ordinance
conferred power upon the Commissioner to make grants of 999-year leases to the
settlers upon conditions embodied therein. The Transfer of Property Act of India

75 Formerly there was the Crown Trust Board.

76 Government Lands Act (Repealed) (Chapter 280) of the Laws of Kenya.

77 Hughes, Lotte. “Rough Time in Paradise: Claims, Blames and Memory Making Around Some Protected Areas
in Kenya” in Conservation and Society, 5(3), 2007.

78 Berman, B. Control and Crisis in Colonial Kenya: the Dialectic of Domination. James Currey Publishers.,
1990, Page 189.

79 Supra, Smokin page 27.

80 Ibid.

81 Ibid.

82 Ibid.
(ITPA)and the Registration of Titles Ordinances came in handy to safeguard
security of tenure of title holders.
Customary land ownership in Kenya was not ‘‘individual’’ (or ‘‘communal’’) but
rather involved a mixture of personal, familial and economic relationships.83 The
British colonial regime attempted to codify customary land tenure systems, a
process of simplification and misinterpretation which was often divisive at the
local level.84 While customary rights remained unregistered, the colonial
authorities established a system which allowed only for the registration of
individual title. The 1954 ‘‘Swynnerton’’ Plan for the Reform of African Land
Tenure became the fundamental blueprint for many of the land tenure reforms which
have been implemented to date.85

1.4.1 Development of Land law in the Post-independence Era in Kenya

A historical analysis of conflict over resources in Kenya, and the role of the
state, suggests that there are continuities, as well as changes, from the colonial
period to the present. The concept that land in Kenya was terra nullius (vacant
land), and its citizens ‘‘tenants at the will of the Crown’’, was at the heart
of colonial land tenure system.86
Africans did not have legal ownership rights to the land they customarily
owned; instead, they had only user rights. Native Lands Trust Boards were
established to manage African affairs in the ‘‘Reserves’’. The Boards established
a paternalistic and very much ‘‘top down’’ approach to land administration, which
persists to this day.87 This paradigm of dispossession and disenfranchisement
has been fundamental to the history of land tenure in Kenya.88
The independence government was faced with the problem of how to settle the
landless and displaced people. The people wanted the land for which they had
fought. The government was also faced with the need to achieve economic
development as a means of providing the anticipated “fruits of independence”.
Agriculture was to play a major role in development given the fact that there
was no industrial base to stir economic activity.89 At the Lancaster House
negotiations which established the political basis for independence, the United
Kingdom (UK) government pressured Kenya to accept a ‘‘willing buyer, willing
seller’’ approach to the question of white settler farms and ranches, and a
relatively small financial contribution from the UK government.90
The independence Constitution had provisions which tied the hands of the
government. Land could not just be acquired for redistribution to the landless
Africans without full and prompt compensation for the settlers. This was the

83 Leo, C. Land and Class in Kenya. Toronto and London: University of Toronto Press, 1984. Chapter 2.

84 Okoth-Ogendo, HWO Tenants of the Crown: Evolution of Agrarian Law and Institutions in Kenya. Acts
Press, 1991.

85 Judi W. Wakhungu, Chris Huggins and Elvin Nyukuri, Land Tenure and Violent Conflict in Kenya available
at <http://www.acts.or.ke/reports/RelatedResource/Land_Tenure_Brochure.pdf>.

86 Okoth-Ogendo, supra.

87 Wanjala, S Land and Resource Tenure, Policies and Laws: a Perspective from East Africa. Paper prepared
for the Pan-African Programme on Land and Resource Rights (PAPLRR) inaugural workshop, Cairo, Egypt 25 - 26
March 2002.

88 Wakhungu, supra.

89 Smokin page 31.

90 Wakhungu, supra.
beginning of not only the retention of the colonial laws and policies, but also
their entrenchment to this day.91
The substantive and registration law for all land formerly held under customary
law was codified in the Registered Land Act (Repealed) of 1963.92 The Act, which
was supposed to replace all other related laws in Kenya, was an expression of
the agronomic arguments for individualization of tenure; and was also an
embodiment of English property law. Because the question of landlessness at
independence had to be addressed, the British Government in concert with the
independence government embarked upon a programme of purchasing land and availing
the same to the landless. These efforts included the million acre settlement
scheme, in which a million people were settled on holdings ranging from 25 to 40
acres from 1962, and the squatter settlement scheme of 1965 meant to settle
squatters.
A process of land adjudication, consolidation and registration, which has
covered much of the arable land in the country, resulted in heads-of-households
being granted individual rights to land, often at the expense of the rights of
female relatives and those with customary rights of use or tenancy. Collective
forms of tenure, which would have more appropriately reflected the existing local
tenure systems, were not supported by legislation and land could not be registered
collectively.

1.4.2 Landholding in Kenya under the Independence Constitution

Under the independence Constitution of Kenya, land was held under public, private
or community tenure system. Land tenure entails the manner in which individuals
or groups in society hold or have access to land.93 Tenure in Kenya before the
advent of colonialism was fundamentally different from that in feudal England,
from which alien law was imported. The most common tenure during that period in
question is what can be termed as communal tenure, where land belonged to no one
individual in particular but the community as a whole.94 It is imperative that we
analyse each of the three tenure systems separately.

1.4.2.1 Public Tenure

This refers to a tenure regime in which the government is a private landowner,
with land held by Government as the private landowner.95 In common parlance,
public tenure is called Government land.96 In Kenya, this regime originated from
the Crown Lands Ordinance of 1902, which declared that all “waste and unoccupied
land” in the protectorate was “Crown land.”97 A 1915 amendment to this Ordinance
redefined Crown lands to include land in actual occupation by “native” Kenyans.
Subsequently, native lands were excised from Crown land and vested in a Native

91 Smokin, supra page 31.

92 Chapter 300, Laws of Kenya.

93 Smokin C. Wanjala, Land Ownership and Use in Kenya: Past Present and Future. In Essays on Land Law;
the Reform Debate Smokin Wanjala(ed) page 25.

94
Ibid, page 25.

95 Land, The Environment and the Courts in Kenya Background Paper for the Environment and Land Law
Reports, A DFID/KLR PARTNERSHIP by, Dr. J.M. Migar Akech February 2006, page 5.

96 This suffices to say, The Government holds the land on behalf of the public for a public purpose,
thereby being the owner, hence the name Government Land.

97 Ibid.
Lands Trust Board established by the Native Lands Trust Ordinance of 1938.98
Native reserves therefore fell within the definition of “Crown lands”99 until
1938 when, vide the Crown Lands (Amendment) Ordinance, 1938, native reserves were
renamed “native lands” and divorced from the definition of Crown lands. At
independence, the land initially under “native reserves” became Trust Land, whose
management is also discussed in this chapter.
At independence, these native lands became trust lands, and were vested in
county councils to hold them in trust for the benefit of all persons residing
within the sub-regions. Further, Crown land became government land, and was
vested in the President, whom the Constitution empowered to make grants or
dispositions of any estates, interests or rights in or over unalienated government
land. The presidential powers could be delegated to the Commissioner of Lands in
limited circumstances.100 The point to emphasise is that Government land was
exclusively vested in the President. The President had the exclusive power to
grant or dispose of any estates, interests or rights in or over unalienated
Government Land.101 The notion of Government land did not codify trusteeship in
the President as a trustee of government land on behalf of the entire public. It
is for this reason that Ogolla and Mugabe argue that the President had a carte
blanche in dealing with Government land.102
The Government Lands Act (Repealed) regulated public land tenure, and
constituted the principal framework for the conservation of biodiversity
established by the Forests Act and the Wildlife (Conservation and Management)
Act.103 These statutes declared large areas of land as forest reserves, national
parks or national reserves with the objective of protecting forests and
wildlife.104 As to whether forests and wildlife were indeed effectively protected

98 Government Lands Act (Repealed) (Chapter 280), section 3 states: “The President, in addition to, but
without limiting, any other right, power or authority vested in him under this Act, may—(a) subject to any
other written law, make grants or dispositions of any estates, interests or rights in or over unalienated
Government land; (b) with the consent of the purchaser, lessee or licensee, vary or remit, either wholly or
partially, all or any of the covenants, agreements or conditions contained in any agreement, lease or licence,
as he may think fit, or, with the like consent, vary any rent reserved thereby.

99 This means that, Native reserves were still part of Crown land by virtue of being drawn from the crown.
According to PL Onalo his book Land Law and Conveyancing in Kenya page 46, he indubitably states that The
Native Land Trust Ordinance of 1930 had been designed to give greater security to Africans on the land than
had been possible under the Government Lands Act but the provision that they could be excluded from part or
parts of the reserve for various public purposes tended to erode this security. On page 45 he gave an example
of the Kakamega indent of 1933, where the Government excised the gold fields from the Kavirondo reserve
without provision for another piece of Land thereby exposing the security of tenure which was envisaged under
Government Land Act and the Native Land Trust Ordinance of 1930. The Government had acted pursuant to the power
of the Crown under the Government Lands Act 1915 and the subsequent legislation of Native Land Trust Ordinance
1930 to proclaim native reserves, but with powers to exclude Africans from a reserve or part of a reserve which
was required by the Government so long as an alternative piece of Land could be given to the tribe.

100 Ibid. Government Lands Act (Repealed), 1915.

101 Government Lands (Repealed) Act (Chapter 280), section 3 states: “The President, in addition to, but
without limiting, any other right, power or authority vested in him under this Act, may—(a) subject to any
other written law, make grants or dispositions of any estates, interests or rights in or over unalienated
Government land; (b) with the consent of the purchaser, lessee or licensee, vary or remit, either wholly or
partially, all or any of the covenants, agreements or conditions contained in any agreement, lease or licence,
as he may think fit, or, with the like consent, vary any rent reserved thereby; (c) extend, except as otherwise
provided, the time to the purchaser, lessee or licensee for performing the conditions contained in any
agreement, lease or licence liable to revocation for such period, and upon such terms and conditions, as he
may think fit, and the period so extended, and the terms and conditions so imposed, shall be deemed to be
inserted in the agreement, lease or licence and shall be binding on the purchaser, lessee or licensee, and on
all transferees, mortgagees, assignees and other persons claiming through him.”

102 Supra.

103 Ibid, Ogolla.

104 Ibid, Ogolla.

under the previous constitutional framework is questionable. Worse still, the
access and use of public land was monopolized by the government. 105

1.4.2.2 Community Tenure

Under this regime, a set of clearly defined rights and obligations over land and
land-based resources is held by a clearly defined group of users, which may be
a clan or ethnic community. The group regulates resource use by employing rules
and guidelines which, in the traditional form of this regime, are handed down
from generation to generation. Rights to use the resources are distributed
equitably among members of the group.106 Members of the group are prohibited from
unilaterally transferring rights of use to non-members. This regime represents
private property for group members, given that non-members can neither use the
resource nor make decisions over it.107 It may, therefore, be safely argued that
customary tenure hinges on a number of principles. Rights of access and use of
land is determined by membership to the social unit of production and or political
community.108 Rights of control vest in the political authority of the unit or
community. Control of the tenure is for purpose of guaranteeing access to the
land and is redistributive spatially and inter-generationally. No beneficiaries
of the tenure have greater rights of access and use than the current cultivators.
The rights over the land are transmitted. Lastly, shared resources which require
harnessing such as pastoral lands and water are managed by the relevant political
entity.
In 1968, the Land Adjudication Act109 was amended to provide for the
adjudication of group rights alongside individual rights. The group rights were
to be registered under the Land (Group Representatives) Act. The idea of
registering group rights was meant to maintain the status quo in semi arid areas
where the way of life was pastoral and nomadic. In these areas, individualization
of tenure had very slim chances of success. The registration of group interests
makes it possible for pastoral peoples to operate group-ranching schemes under
the machinery set up by the Land (Group Representatives) Act.110

1.4.2.3 Private Tenure

Private land is land lawfully held, managed and used by an individual or other
entity under statutory tenure. Under the previous constitutional regime, private
tenure derived legitimacy from the Government Lands Act (Repealed),111
Registration of Titles Act (Repealed),112 Land Titles Act (Repealed),113 Registered

105 Ibid, Ogolla.

106 Supra, Akech.

107 D.W. Bromley and J.A. Cochrane, Understanding the Global Commons, University of Wisconsin-Madison,
EPAT/MUCIA Working Paper, at 12 (1994).

108 Ogolla and Mugabe, supra, page 97.

109 Chapter 284.

110 Supra, Smokin 27.

111 Chapter 280, Laws of Kenya.

112 Chapter 281, Laws of Kenya.

113 Chapter 282, Laws of Kenya.

Land Act (Repealed),114 Trust Land Act, 115 the Indian Transfer of Property Act
(Repealed) 116 and the Sectional Properties Act.117 Private tenure emphasized
indefeasibility of title except in cases of fraud, to which the proprietor is a
party.

1.4.2.4 Trust Lands

This was a special regime of communal land. Under the previous Constitutional
regime, trust lands in Kenya were regulated by the Trust Lands Act.118 Such lands
were formerly the “native reserves” under the colonial administration.119 Trust
lands were spread out in various districts, town councils and high potential
agricultural regions in Kenya.120 Trust lands were administered by County Councils
for the benefit of residents of such regions. The Councils were, therefore,
trustees of Trust Lands for the benefit of the residents of the Councils. Each
County Council had the power to divide land within its jurisdiction into
Divisions, with each administered by a Divisional Land Board.121 The law empowered
the Commissioner of Lands to execute, on behalf of the Council, documents relating
to grants, leases, licenses and any other documents relating to Trust Land
whenever necessary as an agent of the County Council and only upon direction by
the Council.122 Trust Land could be set apart by County Council or by government
through a presidential notice pursuant to section 117(1) of the independence
Constitution. A County Council was the one empowered to set apart land vested
within the council to a public body, public authority, for public use, for
purposes of prospecting for or extraction of minerals or mineral oils, or for
purposes which in the opinion of the County Council was beneficial to persons
ordinarily resident within its region. Setting apart extinguished rights,

114 Chapter 300, Laws of Kenya.

115 Chapter 288, Laws of Kenya.

116 1882 as amended.

117 Number 21 of 1987.

118 (Chapter 288) Laws of Kenya.

119 Ogolla and Mugabe, supra.

120 Kenya Human Rights Commission. Who owns This Land? A Guide to Understanding the Law of Trust Lands in
Kenya, Nairobi: KHRC Publication, 1997, pages 1-2. According to the author, Trust Lands are found in Moyale,
Wajir, Samburu, Tana River, Marsabit, Garissa, Turkana, Isiolo, Mandera and Trans Mara districts; they are
found in Taveta, Pokot, Mosop, Tinderet, Elgeyo, Marakwet, Baringo, Olenguruone, Mukogodo, Elgon local and
Kuria Area Councils, Makueni Trust Land Area, Athi River Utilisation Trust Land Area, Lambwe Valley Trust Land
Area, Sarora Trust Land, Kaimosi Trust Land, Meru Concessional Trust Land Area, Irrigation Trust Land Areas of
Pekerra Area in Baringo District, Mwea Tabere in Embu District, North Yatta, Yatta Plateau and Ithanga Trust
Land, Isiolo Trust Land, Olenguruone Trust Land, and Shimba Hills Trust Land in Kwale District.

121 Trust Lands Act (Chapter 288), section 5 states: “There shall be established in respect of each division
created under this Part a Divisional Land Board, which shall consist of— (a) a chairman, appointed by the
Minister (now Cabinet Secretary) for the time being responsible for land after consultation with the council;(b)
not less than four and not more than fifteen persons appointed by the council;(c) not more than two public
officers appointed by the council; and (d) two persons appointed by the council from amongst its members:
Provided that, where a Divisional Board established under the Kenya (Land Control) (Transitional Provisions)
Regulations, 1963, has jurisdiction over any division created under this Part, that Board shall be the
Divisional Land Board for that division for the purposes of this Act.”

122 Ibid, section 53 states: “The Commissioner of Lands shall administer the Trust land of each council as
agent for the council, and for that purpose may— (a) exercise on behalf of the council, personally or by a
public officer, any of the powers conferred by this Act on the council, other than that conferred by section
13(2)(d) of this Act; and (b) execute on behalf of the council such grants, leases, licences and other documents
relating to its Trust land as may be necessary or expedient: Provided that— (i) the Commissioner of Lands shall
act in compliance with such general or special directions as the council may give him; and (ii) the Minister
(now Cabinet Secretary) may, by notice in the Gazette, terminate the Commissioner of Land’s power to act under
this section in relation to the Trust land of any particular council, where the Minister (now Cabinet Secretary)
is satisfied that the council has made satisfactory arrangements to administer its Trust land itself.”
interests and benefits that previously vested in a tribe, group, family or
individuals in respect of the land.123 However, such tribe, group, family or
individuals that had vested rights or interest in land set apart were entitled
to prompt payment of full compensation from the Government before the land could
legitimately be set apart.124
Setting apart could also be at the instance of the President through a
presidential notice. Pursuant to section 118(1) of the previous Constitution of
Kenya, the President could, after consultation with the Council, give a written
notice that land within the county council be set apart for specified and
permitted purposes. The purposes for which land could be set apart at the instance
of the President were for purposes of use by the Government of Kenya, use by a
body corporate established for public purposes by an Act of Parliament, use by
a company in which shares were held by or on behalf of the Government of Kenya,
or for purposes of prospecting or extraction of minerals.125 In either case, a
tribe, group, family or individuals that had vested rights or interest in land
set apart was entitled to prompt payment of full compensation from the Government
before the land could legitimately be set apart.
The administration system of trust lands provided opportunity for land grabbing
under the previous Constitutional order.126 Landholding and access to land under
the previous Constitution was riddled with a number of legislative and
institutional weaknesses. Some of the weaknesses were codified in the Report of
the Commission of Inquiry into the Illegal/Irregular Allocation of Public Land
(Ndung’u Report).127
Land in cities, municipalities, townships and government lands were
indiscriminately apportioned by Commissioners of Lands through abuse of the
presidential discretion to apportion such lands.128 Land acquired for public use
was illegally allocated through forged letters and documents. State corporations
were used as conduits for land grabbing through which the public lost colossal
amounts of money, as the land that was illegally allocated to individuals or
companies. The land would be sold at less than market value to allottees, who
would then re-sell it to other state corporations at exaggerated costs.129

123 Constitution of Kenya, section 117(2) states: “Where a county council has set apart an area of land in
pursuance of this section, any rights, interests or other benefits in respect of that land that were previously
vested in a tribe, group, family or individual under African customary law shall be extinguished.”

124 Constitution of Kenya, section 117(4) states: “No setting apart in pursuance of this section shall have
effect unless provision is made by the law under which the setting apart takes place for the prompt payment of
full compensation to any resident of the land set apart who—
(a) under the African customary law for the time being in force and applicable to the land, has a right to
occupy any part of the land; or
(b) is, otherwise than in common with all other residents of the land, in some other way prejudicially
affected by the setting apart.” Setting apart of Trust Land has similar effect as compulsory acquisition of
land under the Land Acquisition Act (Chapter 285) Laws of Kenya.
125 Constitution of Kenya (Repealed), section 118(2).

126 See, for instance, Report of the Interim Coordinating Secretariat, Mau Forests Complex dated 26 February
2010.

127 The Ndung’u Commission, which was composed of 20 prominent citizens, lawyers and civil servants was
appointed by President Kibaki in June 2003, and was charged with inquiring into the unlawful allocation of
public lands, ascertaining the beneficiaries, identifying public officials involved in illegal allocations,
and making recommendations for appropriate measures for the restoration of illegally allocated lands to their
proper purpose, for prevention of future illegal allocations, and for appropriate criminal prosecutions. The
Commission released its report on 16 December 2004. See Southall, R. ‘The Ndung’u Report: Land & Graft in
Kenya.’ Review of African Political Economy. Taylor & Francis Ltd, 2005, 143.

128 Report of the Commission of Inquiry into the Illegal/Irregular Allocation of Public Land (Ndung’u
Report), Nairobi: Government Printer, June 2004, page 81.

129 Ibid, pp 89-90. The Commission identified the state corporations that lost large areas of land under
dubious circumstances to include Kenya Railways, Kenya Airports Authority, Kenya Agricultural Research
Institute, Kenya Power and Lighting Company, Kenya Industrial Estates and Kenya Food and Chemical Corporation.
Government ministries and departments in cohort with Commissioners of Lands
allotted respective ministries lands.130 Settlement Schemes were abused by
Settlement Fund Trustees and District Plot Allocation Committees,131 while Trust
lands, which were to be held by local authority in trust for the benefit of
residents of the local authority, were illegally allocated to individuals and
companies by County Councils in cohort with Commissioners of Lands.132 Forest
lands, national parks, game reserves, wetlands, riparian reserves and protected
areas were illegally and irregularly excisioned.133 Public land was, therefore,
grabbed ‘‘in total disregard of the public interest and in circumstances that
flew in the face of the law’’ and ‘‘rewarded’’ by political patrons to politically
correct individuals.134 Courts were used to shield illegal beneficiaries of land
and to protect illegally acquired land under the pretext of “first registration.”
Cases such as Ambale v Masolia135 and Mugogo v Sihowa136 institutionalised the
jurisprudence that “even if fraud had been established, inasmuch as the
respondent’s title was acquired by first registration, it could, in no
circumstances be defeated.”137

130
Ibid, pp 112-113. The Commission identified the affected Ministries to include Ministry of Livestock
and Fisheries Development, National Youth Service and Kenyatta International Conference Centre.

131 Southall, R. ‘The Ndung’u Report: Land & Graft in Kenya.’ Review of African Political Economy. Taylor
& Francis Ltd, 2005, 146-147. According to the author: “Allocation of plots, formally conducted under Settlement
Fund Trustees, devolves in practice upon District Plot Allocation Committees composed of the District
Commissioner, District Settlement Officer, District Agricultural Officer, the area MP, the Chairman of the
relevant County Council and the Clerk to Council. Settlement Fund Trustees appear to lack any supervisory
powers over these committees, with the result that the local committees have been almost wholly unaccountable.
The result has been predictable, with the interests of the landless having been ignored in favour of those of
‘District officials, their relatives, members of Parliament, councillors and prominent politicians from the
area, Ministry of Lands and Settlement officials, other civil servants and … so-called ‘politically correct’
individuals’. And whilst the majority of deserving allottees received smaller plots, the undeserving often
received large ones. Meanwhile, farms belonging to the Agricultural Development Corporation, designed to
provide an the needs of the agricultural industry by developing high quality seeds or livestock or undertaking
research etc, have been illegally established as settlement schemes and subsequently illegally allocated to
individuals and companies, often as political reward or patronage.”

132 Ndung’u Report (n 7 above), pages 134-135. See also Report of the Interim Coordinating Secretariat,
Mau Forests Complex, 26 February 2010. See also Mungai, K. ‘The Obstacles in the Fight Against Corruption in
Kenya.’ Ojienda T. (ed) Anti-Corruption and Good Governance in East Africa: Laying Foundations for Reform.
Nairobi: LawAfrica Publishing (K) Ltd, 2007,135. While quoting the late JM Kariuki, the author states: “I am
sounding this as a warning and it should be taken seriously that this greed is going to ruin us!...it is the
policy of the government to settle people who are landless and not the people who own land somewhere else.
Where will our poor men go if we are to continue at this rate? In fact, I can see this country is going to
disregard the poor persons for good if leaders are being too greedy. They have gone as far as Maasai land
saying that they are doing experiment whereas the whole of Maasai land has been taken by those greedy people
under the pretext of training the Maasai to become farmers. I call this “robbing” because, how can you take
land as much as 3,000 acres under the pretext that you are experimenting for five years?...I would like to
state that the majority of these people are well-to-do and hold high positions in government…The Provincial
Commissioner for Central province has an experiment farm there. Some of our Permanent Secretaries have farms
there. Some of the Cabinet Ministers have farms there. It is not a secret. The mistake in this country is that
we are trying to hide a lot of things…”

133 Ndung’u Report, supra pp 148-169. The Commission observed that: “only 1.7% of the 3% of the country
which was covered by gazetted forests at independence remains, most of the reduction having come about as a
result of illegal and irregular excisions, usually made without any reference to scientific considerations or
under the guise of settlement schemes. The beneficiaries of such excisions include (often private) schools,
government institutions, and religious bodies as well as private individuals and companies. Similarly, many
illegal allocations of land around riparian sites have been illegally allocated by the Kenya Wildlife Service,
with many such allocations – such as those made since 1995 to some 14 beneficiaries around Lake Naivasha –
being known to have severely affected the ecosystem.”

134 Ndung’u Report Supra, pp. 8, 14.

135 (1986) KLR 241.

136 (1988) KLR 1.

137 It is not worthy that in Karanja Kariuki v Kariuki (1983) eKLR, Justice Madan held that where a
customary land trust exists, registration of land even as a first registration does not exempt the proprietor
from obligations as a trustee of the customary land. That first registration does not exclude recognition of
a trust provided it can be established. That in protecting first registration, Parliament could not have
intended to destroy this customary land trust of one of the largest sections of the peoples of Kenya.
 While land is a vital resource to livelihood, under the previous Constitution,
land was inequitably distributed and communal and group interest in land were
subjugated to individual interests.138 Pastoralists land was not managed through
sustainable norms, rules, beliefs and practices of indigenous communities,139 but
through “legal-structural authoritarian-rights that emphasised individual tenure
and de-emphasised community land rights.”140 At the Coast, majority of the
indigenous Mijikenda communities were rendered squatters at the behest of
political stooges.141 Women’s rights to land were either insubordinated to those
of men or not recognised at all;142 and their rights to own, inherit, manage, and
dispose of land were under constant attack from customs, laws, and individuals
including government officials who believed that women did not deserve property
rights. The devastating effects of property rights violations including poverty,
disease, violence,143and homelessness harmed women, their children, and Kenya’s
overall development. Many women were excluded from inheriting, evicted from their
lands144 and homes by in-laws, stripped of their possessions, and forced to
engage in risky sexual practices in order to keep their property.
The failure to implement the recommendations of the Ndung’u Report has
exacerbated the frustrations in dealing with land tenure disputes. For instance,
in Mureithi v Attorney-General and others145 where members of Mbari-ya-Murathimi

138 See the Report of the Commission of Inquiry on Post Election Violence (CIPEV), page 31. The Report
noted, “Constitutionally, individuals may own land in any place in Kenya and in law no part of the country
belongs to an ethnic group. Nevertheless, this phenomenon is de facto a characteristic of many areas,
particularly as many of the newly created districts since the nineteen nineties have been ethno-specific,
leading to the creation of ethnically homogenous effective “native reserves”. This in turn has created the
notion of “insiders”, who are native to a place and “outsiders” who have migrated there, a notion that has
been tapped by aspiring politicians. This raises the question of the balance between group interests and the
rights of individuals as entrenched in the Constitution, a problem that also has crept into slums such as
Kibera and Mathare which are now informally divided into ethnically homogeneous zones.”

139 Lenaola, I. et al. ‘Land Tenure in Pastoral Lands.’ Juma, C. and Ojwang, J.B. (eds) In Land We Trust:
Environment, Property and Constitutional Change. Nairobi: Initiative Publishers, 1996, 231-258 at 236.

140 Okoth-Ogendo, H.W.O. “Tenants of the Crown: Evolution of Agrarian Law and Institutions in Kenya.”
Nairobi: African Centre for Technology Studies, 1991, page 170. According to the author, “Two phases are
clearly identifiable in the case of developments in the property law area before 1939. The earlier phase, which
ends up around 1915, was one simply of legal security to land both for the African and for the settler. In
order for the latter to obtain this, it was in the nature of colonial power relations that the former should
lose it. The manner in which this was done-whether by sheer brutality or the distortion of proprietary values
of the Africans-is not of particular consequence. The concern was to found and and organize an economy which
never really got off its feet even after 60 years of one of the most systematic forms of exploitation ever
experienced under the British imperial emblem…correlation between economic instability and legal structural
authoritarianism is one which explains the characteristic of much of early colonial law not only in the field
of property relations, but in other areas as well.”

141 Kanyinga, K. Redistribution from Above: The Politics of Land Rights in Coastal Kenya. Uppsala: The
Nordic Africa Institute, page 56. According to the author: “The arrival of the British and the establishment
of the protectorate status helped the subjects of the Sultan to consolidate their control of land along the
coast in disregard of the possessions of the indigenous Mijikenda groups. The 1886 Anglo-German Agreement,
which created Mwambao, specifically gave the Sultan rights over land in the Strip and made no attempts at
preserving Mijikenda land rights. The declaration of the Protectorate in 1895 and the subsequent lease of the
Coastal strip to the Protectorate by the Sultan was followed by the formal acknowledgement, in principle and
practice, of the private possessions of Arabs and Swahili, thereby laying the socio-political and administrative
bases for the exclusion of Mijikenda rights to land on the coast in general and along the strip in particular.”

142 United Nations Development Programme UNDP). ‘Kenya Human Development Report 2001.’Nairobi: UNDP, 2002,
page 30. See also Republic of Kenya. ‘Poverty Reduction Strategy Paper for the Period 2001-2004.’ Nairobi:
Government Printers 2001, page 36. The author states in part:“…Only 29 percent of those engaged in formal wage
employment are women, leaving most to work in the informal sector with no social security and little income.”

143 Tony, J.. Domestic Abuse in Kenya. Nairobi: Population Communication Africa, 2002, page 10. The author
states: ‘Violence against women is commonplace: 60 percent of married women reported in a 2002 study that they
are victims of domestic abuse…”

144 Nyamu-Musembi, C. (2002). ‘Are Local Norms and Practices Fences or Pathways? The Example of Women’s
Property Rights.’ Abdullahi, A. An-Na’im (ed) Cultural Transformation and Human Rights in Africa. New York:
Zed Books Ltd., 2002, page 136.

145 [2006] 1 KLR (E and L), 707. The court argued that once the President is presented with the report of
a Commission of Inquiry, he has complete discretion on what to do with it and he is not obliged to respond in
clan in Nyeri sought judicial review orders against the Attorney-General and the
Commissioner of Lands to implement the recommendations of the Ndung’u Report
insofar as it touched their land, the Court held that the Attorney-General and
the Commissioner of Lands were under no statutory duty whatsoever to implement
the recommendations of the Ndung’u Report. Such were the weaknesses on land
access and holding under the independence Constitution that the Constitution of
Kenya, 2010, attempts to address.

4.3 Landholding in Kenya under the Constitution of Kenya 2010

Chapter Five of the Constitution enables the people of Kenya to collectively, as
a nation, community and individuals, own all land in Kenya.146 The land is to be
held, used and managed in a manner that guarantees equitable access, rights,
security of land rights, sustainability of land resources, transparent and cost-
effective land administration, conservation and protection of ecological
resources, gender balance in land holding and use, and in a manner that promotes
local community initiatives in resolution of land disputes.147 The three main
tenure systems include public, community and private tenure.148 Public tenure
includes un-alienated government land as at the effective date; land held, used
or occupied by any State organ other than private leases; land sold, reverted or
surrendered to the State; land in respect of which neither individual nor communal
ownership can be legally established; and land in respect of which no heir can
be legally identified. Whereas the foregoing categories of land are administered
by the National Land Commission, such land vest in and is held by county
government in trust for the people resident in the respective county.149
Minerals and mineral oils; forests other than those falling in community lands;
reserves, water catchment areas, national parks, government animal sanctuaries
and specially protected areas; roads and thoroughfares; water bodies; territorial
sea, exclusive economic zone, the sea bed, continental shelf, land between the
high and low water marks; and land classified as public land by dint of a statute
are other categories of public land.150 Such land vest in and is held by the
national government in trust for the people of Kenya and administered on behalf
of the Kenyan people by the National Land Commission.151 Public land can only be
effectively disposed under a statute.152
Community land vests in and is held by communities on the basis of ethnicity,
culture and similar interests. It comprises land registered in the name of group
representatives; land legally transferred to a specific community; land held,
managed or used by specific communities as forests, grazing areas or shrines;
land traditionally occupied by hunter-gatherer communities; trust land held by
county governments other than public land; and land statutorily declared as
Community Land.153 Unregistered community land is held in trust by county

any particular way. That it is not the mandate of court to formulate and implement policy matters as this is
the mandate of the Executive and Parliament.

146 The Constitution of Kenya, article 61(1).

147
Ibid, article 60(1).

148 Ibid, article 61(2).

149 Ibid, article 62(1) and (2).

150 Ibid, article 62(1).

151 Ibid, article 62(3).

152 Ibid, article 62(4).

153 Ibid, article 63(1) and (2).

government on behalf of communities for which it is held.154 Just like public
land, community land can only be effectively disposed under a statute.
Private land comprises registered land held by any person under freehold
tenure, leasehold tenure, or by dint of a statute.155 Non-citizens may hold land
only on the basis of leasehold tenure for a maximum period of 99-years. Any
conveyance purporting to confer leasehold interest for a period greater than 99
years is deemed to confer 99 year leasehold interest.156 For purposes of
landholding by corporations, a corporation is deemed to be a citizen only if it
is wholly owned by one or more citizens, and the beneficial interest in property
held in trust by the corporation is for citizens.157
The Constitution establishes the National Land Commission as the body mandated
to manage public land on behalf of the national and County Governments; recommend
National Land Policy to the National Government; initiate land titling
programmes; research on land use and use of natural resources; investigate and
recommend mechanisms for redress of historical land injustices; encourage use of
traditional disputes resolution mechanisms in land conflicts; assess tax on land
and premiums on immovable property; and to perform oversight roles over land use
planning.158
In order to operationalise the spirit and letter of the Constitution,
Parliament is mandated to revise, consolidate and rationalise existing land laws;
revise sectoral land laws to accord with the principles of land policy; legislate
on minimum and maximum land holding acreages in respect of private land,159 the
process for conversion of land from one category to another, recognition and
protection of matrimonial property, protection, conservation and access to public
land, review of propriety or legality of grants or dispositions of public land,
and protection of interest of dependants in a deceased estate. 160 To this end, a
lot of effort has been made towards implementation of the Constitution. Parliament
has enacted the Environment and Land Court Act;161 the National Land Commission
Act;162 the Land Act;163 and the Land Registration Act.164 As at the time of this
edition of the book, the Evictions and Resettlement Procedures Bill, 2012 and
the Community Land Bill were pending in Parliament.

The Community Land Act, 2016

154
Ibid, article 63(3).

155 Ibid, article 64.

156 Ibid, article 65(1) and (2).

157 Ibid, article 65(3).

158 Ibid, article 67(2).

159 The Minimum and Maximum Land Holding Acreages Bill, 2015 is currently pending in parliament for debate.
The Bill seeks to give effects to article 68(c)(i) of the Constitution of Kenya to provide for minimum and
maximum land holding acreages in respect of private property.

160 Ibid, article 68.

161 Number 19 of 2011.

162 Number 5 of 2012.

163 Number 6 of 2012.

164 Number 3 of 2012.

This proposed law is intended to give effect to Article 63(5) of the Constitution
which provides for the recognition, protection, and registration of community
land rights in Kenya. In addition, the proposed legislation is meant to provide
guidelines in the management and administration of community land; and perhaps
more specifically, define the role of county governments in relation to
unregistered community land. The Bill defines several key concepts. Clause 2
defines “community land” to include land declared as such under article 63(2) of
the Constitution; and land converted into community land under any law. The Bill
goes further to define what or who makes up a community. Clause 2 defines
“community” to mean an organized group of users of community land who are citizens
of Kenya and share either of the following attributes: common ancestry; similar
culture; socio-economic or other common interest; geographical space; or
ecological space. The current criteria, based on the existing statutes, used to
identify a “community” for purposes of ownership of community land include:
culture, community interest, and ethnicity.
The proposed legislation recognizes that community land, which vests in the
community, may be held under customary tenure, freehold, or leasehold. This
reverberates with the provisions of the Constitution which, in recognizing
community land rights, puts them at par with other land tenure regimes under the
law. In this regard, Clause 5 of the Bill proposes that “customary land rights,
including those held in common shall have equal force and effect in law with
freehold or leasehold rights acquired through allocation, registration or
transfer.” This resonates closely with the modern thinking and writing on tenure
reforms in Africa, which argue that the focus should be on how to recognize and
secure land rights that are clearly distinct from private property and are
“communal” in character, but cannot be accurately described as “traditional”
given the profound impacts of rapid socio-economic and political changes since
the colonial era.
The Bill captures and makes adequate provisions for decentralization of the
management of community lands. In this regard, Clause 6(1) mandates the county
governments to hold in trust all unregistered community land on behalf of the
communities for which it is held. This is in line with article 63(3) which
carries a similar provision. The National Land Commission is mandated to manage
the community land held as such on behalf of the county governments. For instance,
the county government shall on the request of the Commission submit records of
development plans lodged with it.
The Bill further proposes for the registration of community land in accordance
with the provisions of, not only the subsequent legislation itself, but also
the Land Registration Act, 2012. Clause 11(2) further proposes that the Cabinet
Secretary is expected by a notice in the gazette, to appoint an adjudication
officer in respect of every community registration unit who is obligated to: one,
facilitate the adjudication of the community land including the recording of
community land claims, demarcation of community land and delineation of
boundaries; and two, perform any other function conferred by subsequent
legislation after being signed into law. Upon adjudication, the title relating
to community land shall be issued by the Registrar in the prescribed form.
The nature of community land and rights conferred upon registration has always
been problematic. In this regard, Clause 17 of the Bill proposes that the
registration of a community as the proprietor of land shall vest in that community
the absolute ownership of that land together with all rights and privileges
belonging or appurtenant thereto. Additionally, the registration of a community
or a person as the proprietor of a lease shall vest in that community or person
the leasehold interest described in the lease, together with all implied and
express rights and privileges belonging or appurtenant thereto and subject to
all implied or express agreements, liabilities or incidents of the lease. Clause
18 introduces an indefeasibility provision upon first or subsequent registration.
The Clause reads:
 The rights of a registered community as proprietor, whether acquired on first
registration or subsequently for valuable consideration or by an order of court,
shall not be liable to be defeated except as provided in this Act, and shall be
held on behalf of the community, together with all privileges and appurtenances
belonging thereto, free from all other interests and claims whatsoever, but
subject to: (a) the leases, charges and other encumbrances and to the conditions
and restrictions, if any, shown in the register; and (b) such overriding interests
as may affect the land and are declared by section 28 of the Land Registration
Act, 2012 not to require noting on the register.
Part V of the Bill contains general provisions relating the conversion of
community land and also provides for the conversion of community land to public
land or to private land and the conversion of public land or private land to
community land and the setting aside of community land for public purposes.
Clause 23(1) provides that community land may be converted to public land by
compulsory acquisition, transfer, or surrender. Public land may be converted to
community land by allocation by the National Land Commission in accordance with
the Land Act, 2012. Community land on the other hand may be converted to private
land through either transfer or allocation by the registered community, subject
to ratification of the assembly. The Bill proposes that this kind of conversion
must be subject to the approval of the registered community. The Bill, under
Clause 26, further proposes that private land may be converted to community land
by transfer, surrender, or operation of the law in relation to illegally acquired
community land.
The National Land Policy envisages scenarios which will require different ways
of resolving them rather than courts of law. These include issues of historical
injustices arising out of colonial land policies and practices, as well as those
necessitated by poor practices of post-independence governments which have
occasioned mass disinheritance of various Kenyan communities of their land. In
this regard, the Bill, through Part VIII, provides for dispute resolution
mechanisms through alternative and traditional dispute resolution mechanisms,
mediation and arbitration. Clause 40(3) goes further to give priority to
alternative dispute resolution mechanisms in the event that a dispute or conflict
arises in respect of community land.
Chapter Two of this book looks at the new land laws in a more detailed manner.
The author has made a deliberate effort to critically examine the new land laws
and draft legislation in the context of the Constitution because it is the
Constitution that is the supreme law in determining land holding and access in
Kenya. An analysis of the provisions of the National Land Policy, Sessional Paper
number 3 of 2009 is also undertaken.
CHAPTER TWO
THE LEGAL FRAMEWORK GOVERNING LAND AND CONVEYANCING IN KENYA
2.1 INTRODUCTION
The evolution of land rights remain a focal point in Kenya’s history. It was
the basis upon which the struggle for independence was waged.165 Land issues have
traditionally dictated the pulse of our nationhood. The continue to command a
pivotal position in the country’s social, economic, political and legal
relations.166 Land plays a central role in the socio-political organisation of
the nation, not only as a factor of production, but also as an essential element

165 See Ministry of Lands, Draft National Land Policy

http://www.ilegkenya.org/pubs/docs/DraftNationalLandPolicy.pdf.

166 Ndung’u Report, Page xvii.

of spiritual relations within and across generations.167 However, land access
and use continues to be dealt a blow by the rapid growth in population.168 This
has constrained land productivity, access, use and management.169 Noteworthy,
elements of access to, management and use of land are legal concepts which are
best appreciated within the constitutive legislative framework upon which the
concepts hinge, issues which are examined in this Chapter. The Chapter begins by
appreciating that the passage of the Constitution of Kenya, 2010 ,brought with
it radical changes in land management, access and use. It begins by briefly
highlighting the legislative framework existing immediately before the passage
of the Constitution. It then analyses the statutory and policy frameworks that
have been either enacted or proposed in a bid to implement the Constitution. Part
three of this Chapter then evaluates the institutional and legislative changes
that have come with the enactment of the Constitution and implementing statutes.
The author has attempted to critique the novel legislations on land that have
been enacted.

2.2 LEGISLATIVE FRAMEWORK ON LAND

Important to note in this part is that Land Law in Kenya has evolved over time
since the colonial days. Much of the legislative reforms in land were informed
by lived experiences, while some policy and administrative actions, particularly
by the colonial authorities, were informed by stooges of the moment. For instance,
as early as in the 1890s, when the colonial administration was intent on
constructing the railway line and developing agricultural potential beyond the
Sultan’s dominion, the colonial authorities, in 1897, extended the Indian Land
Acquisition Act to facilitate compulsory acquisition of such land;170 Africans
living beyond the Sultan dominion were declared to be having only occupational
rights to land with no title whatsoever; the African leadership beyond the Sultan
dominion were construed as petty chiefs and headmen with whom the colonial
authorities were incapable of entering into a treaty, lest a treaty became an
“empty mockery.”171 A number of Orders-in-Council and Ordinances were then
promulgated by colonial authorities to vest land owned by Africans beyond the
Sultan dominion in the Crown.172
At independence, Kenya inherited a mixed tenure regime involving absolute
private ownership of land and communal ownership, with the state having the power
to acquire and possess land for public use. The tenure was characterized by
dualism, consisting of tracts of land held as state property and other land held
under indigenous tenure system that overlapped and were sometimes contradictory

167 Ojienda, T.O. (2008), Conveyancing Principles and Practice, Nairobi: Law Africa Publishers, page 11.
While quoting the Report of the Commission into Land Law Systems of Kenya on principles of a National Land
Policy Framework (Njonjo Commission Report), the author states: “…For indigenous Kenyans, land also has a
spiritual value. For land is not merely a factor of production; it is, first and foremost, the medium which
defines and binds together social and spiritual relations within and across generations. As one Nigerian Chief
puts it, ‘land belongs to a vast family of which many are dead, few are living and countless members still
unborn.’ Issues about its ownership and control are therefore as much about access to material livelihood.
This is one reason why debate about land tenure in Africa always revolves around the structure and dynamics of
lineages and cultural communities rather than on strict juridical, principles and precepts…”

168 Roger Southall, The Ndung’u Report: Land & Graft in Kenya Published in: Review of African Political
Economy, 103, March 2005, pp.142-51.

169 Ibid.

170 Proclamation number 6 of 9 May 1897.

171 Sorrensen, M.P.K. (1967), Origins of European Settlement in Kenya, Nairobi: Oxford University Press,
page 47.

172 See East African (Lands) Order-In-Council, 1901; Crown Lands Ordinance, 1902; Land Titles Ordinance
number 11 of 1908; Crown Land Ordinance number 12 of 1915; Native Land Trust Ordinance, 1930; Native Land Trust
Ordinance, 1938.
and contrary to each other.173 The land tenure system introduced by the colonial
regime was different in all its fours from the preceding communal tenure regime
in which land did not belong to one exclusive individual, but the community as
a whole. Each person in the community had a right of access to the land dependent
upon his specific needs at the time. The rights of access were guaranteed by the
political authority in a given community. Such authority did not ‘‘own’’ land
but rather exercised political control over the same.
The political control was necessary to facilitate the structural framework
within which the rights of access were to be enjoyed and maintained on equitable
balance between the availability of land and the needs of the individual members
of the community. There was no ‘‘ownership’’ of land either by individual or
political authorities in the same sense as ownership is known under English law.
The normative structure, the form and rigour of control and the degree of
‘‘communalism’’ differed from one community to another.174 The constitutional and
legislative frameworks discussed below are among the main frameworks that
regulated land access and use in Kenya up to the date of the promulgation of the
current Constitution.

2.2.1 The Independence Constitution

The independence Constitution, just like the present one, was supreme.175 Land
rights were regulated by two provisions of the Constitution. First, as an issue
of human rights, in section 75 of, the Constitution granted the right to ownership
of property and right against compulsory deprivation, except under procedure
established by law, along with due compensation in case of compulsory acquisition.
A party could approach the Courts for redress in the event of violation of a
fundamental right. Secondly, the Constitution dedicated seven sections,
constituting its Chapter IX matters related to trust land. More critically, the
Constitution gave credence to customary laws regarding rights in land and,
therefore, embraced such laws within the framework of trust land. In that regard,
section 115 of the Constitution stated as follows:
Each County Council shall hold in trust the land vested in it for the benefit of the
persons ordinarily resident on that land and shall give effect to such rights,
interests or other benefit in respect of the land as may, under African Customary Law
for the time being in force and applicable thereto be vested in any tribe, group,
family or individuals.
This chapter will analyse some of the institutional changes that have been brought
by the 2010 Constitution on management of trust lands.

2.2.2 Land Adjudication Act176

This is an Act of Parliament that provided for the ascertainment and recording
of rights and interests in trust land.177 The Act provided for the appointment of
an adjudication officer and his staff.178 It also enabled constitution of

173 Okoth-Ogendo (1993), Agrarian Reform in Sub-Saharan Africa: An Assessment of State Responses to the
African Crisis and their Implications for Agricultural Development.

174 Okoth-Ogendo (1975), “Property Theory and Land Use Analysis,” in Journal of Eastern African Research
and Development, Vol 5, No 1 at 13.

175 Independence Constitution of Kenya, section 3.

176 Chapter 284, Laws of Kenya.

177 See the Preamble to the Act.

178 Ibid, section 4.

adjudication committees and arbitration boards.179 The adjudication officer had
jurisdiction in all claims made under the Act relating to interests in land in
adjudication area, with the power to determine any question that needed to be
determined in connection with such claims. The adjudication officer was legally
competent to administer oaths and issue summonses, notices or orders requiring
attendance of persons or the production of documents considered necessary for
the carrying out of adjudication.180
The Act provided for the process of ascertainment of interest in land through
the process of adjudication and survey, as well as preparation of adjudication
records and register. The documents were then transmitted to the Chief Lands
Registrar for registration as public records of land rights. The Act was, however,
exempted from applying to areas where the Land Consolidation Act was in force.181

2.2.3 Land (Group Representatives) Act182

The Act provided the procedure for incorporation of representatives of groups
that had been recorded as owners of land under the Land Adjudication Act. The
Act was aimed at establishing a framework for group ownership whereby communal
land that could not be variably divided were foreclosed into ranches under the
management of a committee established, working as trustees of the entire group.
A Registrar of Group Representative appointed under the Act was thereafter given
the responsibility to supervise the administration of groups constituted under
the Act, for optimization of land use. Where a question arose as to the membership
of a particular person in a group under the Act, a certificate signed by majority
of the group representatives conclusively determined the question unless a person
who was aggrieved applied to a District Magistrate’s Court. In that case, the
Court’s decision became the final decision.183

2.2.4 Land Acquisition (Repealed) Act184

The Act derived its legitimacy from section 75(1) of the Constitution. It provided
for compulsory acquisition of land for public benefit in the interest of defense,
public safety, public order, public morality, public health, town and country
planning or the development or utilization of any property in such a manner as
to promote public benefit.185 It provided for the requirements and procedures by
which registered interests in land could be distinguished from individual or
group owners and provided for access to land for public use. The Act was amended
in 1990 in order to establish a Land Acquisition Compensation Tribunal to hear
and determine appeals on issues of acquisition before an aggrieved party could
be allowed access to the High Court.

2.2.5 Government Lands (Repealed) Act186

179 Ibid, sections 5&6.

180 Land Adjudication Act (Chapter 284), section 10.

181 Ibid, section 3.

182 See Preamble to the Land (Group) Representatives Act (Chapter 287).

183 Ibid, section 28.

184 Land Acquisition Act (Chapter 295).

185 Ibid, section 6.

186 Government Lands (Repealed) Act (Chapter 280) Laws of Kenya.

The Act was intended to make further and better provisions for regulating and
other disposal of government land. In this Act, the state acted like a private
owner of public land. The President was vested with great power and authority to
make grants or dispositions of any estates, interests or rights in or over
unalienated government land. The President would also delegate some of such
powers to the Commissioner of Lands.187
As explained in the previous chapter, the President grossly misused this power.
The government allocated large parcels of land as it wished in breach of the
trust conferred to it for by the people of Kenya. This, the previous regimes did
in cohort with Commissioners of Land.188 The procedures provided for in the
Government Lands Act (Repealed) (Chapter 280) and Trust Land Act (Chapter 288)
for allocation of public land were routinely ignored, bypassed and disregarded
by public officers for decades, resulting into illegal and irregular allocation
of public land to individuals and corporations in disregard of public interest.
This had a profound effect on the security of tenure, land use, planning, and
development of urban areas.189 The abuse of discretion found a safe haven in the
fact that all conveyances, leases and licenses of or for the occupation of
government land, and all proceedings, notices and documents made, taken, issued
or drawn were deemed to have been made, taken, issued or drawn under the Act.190
Such land once allocated was held as a grant from the government on payment
of such rents to the government as the government wished. As will be further
considered in this Chapter, this opportunity for abuse of presidential discretion
has been curbed by establishing the National Land Commission as the body mandated
to administer land access and use.

2.2.6 Physical Planning Act191

This Act provides the procedures for the preparation and implementation of
physical development plans by the government. The statute provides a legal basis
for plan preparation and gives them legal force to bind landowners and developers
to comply with them for a sustained environment. Absolute owners of land were
thereby encumbered on how to use their land by the plans that were made under
the Act. The Director of Physical Planning was tasked with the function to
formulate the national, regional and local physical developer’s policies,
guidelines and strategies, and was responsible for the preparation of all regional
and local physical development plans.192 The Director was also mandated to advise
the Commissioner of Lands on matters concerning alienation of land under the
Government Lands Act (Repealed) and the Trust Lands Act. The Director was enjoined
to advise the Commissioner of Lands and Local Authorities on the most appropriate
use of land, including land management such as change of user, extension of user,
extension of leases, subdivision of land and amalgamation of land. Under his
duty, the Director could require local authorities to ensure that physical
development control and preservation orders made under the Act were properly
executed.

187 Ibid, section 3.

188 See Ndung’u Report.

189 Ibid.

190 Government Lands Act, section 64.

191 Chapter 286, Laws of Kenya.

192 Ibid, section 5.

2.2.7 Land Control Act193
This is an Act of Parliament that controls transactions in agricultural land.194
The Minister (now Cabinet Secretary) of Agriculture can, through a Gazette notice,
apply the Act to any area he considered expedient so to do. The Minister (now
Cabinet Secretary) can then divide such areas into divisions.195 The Minister
(now Cabinet Secretary) was mandated to establish a Land Control Board for every
land control area, or where land was divided into divisions, for each division.
The Board’s task was to look into all transactions in agricultural land, and to
approve all dealings in the land before a legal title could be established through
registration of titles. Consent to sell or transfer and to charge or mortgage
agricultural land outside urban areas had to be granted by respective Land Control
Boards, before such right could be registered or even recognised under other
laws.

2.2.8 Trust Land Act196

The Act provided for the administration of certain land under Chapter IX of the
independence Constitution, the Chapter was devoted to Trust Land. The idea for
setting aside trust land was intended to provide a mechanism for the direct
involvement of people in the specified areas in the management of their resources.
To this end, Chapter IX of the independence Constitution provided that trust land
would be vested in local authorities for the benefit of communities residing in
the area. The Constitution outlined the conditions and procedures under which
trust land would be set aside for other purposes. The setting aside might be for
purposes of public utility, for prospecting of minerals, or any other purpose
that a county council might deem to be for the benefit of the people residing in
its area of jurisdiction. Trust Land Act, therefore, implemented the
constitutional provision by establishing how trusts would operate. The
Commissioner of Land was empowered to administer the trust land of each council
as agent for the council, and might exercise, on behalf of the council, personally
or by public officer, any other powers conferred by the Act on the Council,
including the execution of grants, leases, licenses and other documents.197
As highlighted in the previous chapter, trust land system was widely abused
by the County Councils and the Central Government. Instead of acting as the
custodians of the land, the Councils facilitated the alienation of such land in
favour of individuals and institutions in total disregard of the rights of the
local residents.198 The Act also made a first registration under it not
challengeable. The upshot was that one who owned land but never had it registered,
as is the case with many communities in Kenya, could have their land transferred
to a person who then could have the land registered under the Act. As will further
be appreciated, administration of trust land under the Act vested on an
individual, the Commissioner of Lands. This was a breeding ground for corruption
as the latitude for consultation was lacking. Under the 2010 constitutional
dispensation, community land is now being administered by an institution: the
National Land Commission.

193 Chapter 302, Laws of Kenya. This Act was repealed by the Statutes Law (Miscellaneous Amendments) Act,
2013 by amending Land Registration Act, 2012

194 See the preamble to the Act.

195 Land Control Act (Chapter 302), sections 3 and 4.

196 Trust Land Act (Chapter 288) Laws of Kenya.

197 Ibid, section 53.

198 Ministry of Lands, National Land Policy.

2.2.9 Registration of Titles (Repealed) Act199
This statute was enacted in 1920 whereupon all successfully claimed plots were
registered under it. Any titles adjudicated in 1920 and thereafter were registered
under the Registration of Titles Act (Repealed) unless they were converted to
Registered Land Act (Repealed).200 The Act provided for administration and
procedures relative to the administration of titles to which the Act applied. It
also defined the effect of registration of titles. It further stipulated for the
special powers of the Registrars and for the rights to appeal against the
decisions of the Registrar to the High Court.201 It also provided rules relative
to the form and effects of transfer of title, lease, charges, powers of attorney
and caveats.

2.2.10 Land Consolidation Act202

This Act of Parliament was meant to provide for the ascertainment of rights and
interests in, and for the consolidation of land in the special areas.203 It created
a structure for the registration of title to land and for the transactions and
devolutions affecting land in special areas, for instance, where a trust land
was being converted to individual ownership.204
Under it, the Minister (now Cabinet Secretary) was empowered, by a Gazette
notice, to appoint public officers to be the adjudication officers for every
adjudication area created under the Act. The adjudication officers would then be
entitled to appoint demarcation officers, survey officers and recording officers,
as may be necessary for the demarcating, surveying and recording interests within
the adjudication area.205 The Act also stipulated for appointment of an
Arbitration Board and setting up of Adjudication Committees, replete with
requisite structures, to assist in the consolidation process under the Act.206
Every person who considered that he had an interest in land within an
adjudication section had to make a claim to the adjudication officer. Such a
person was required to point out his boundaries to the demarcation officer in
the manner stipulated under the Act. The adjudication officer then had to make
a determination on any dispute arising from it, and if necessary, submit it for
arbitration. Thereafter, the demarcation officer or the survey officer was
dispatched to make physical determination of the rights so determined. When the
process was complete, the land was registered and the registered persons obtained
absolute ownership over the parcel land.

199 Chapter 281, Laws of Kenya.

200 Ojienda, supra, page 23.

201 Registration of Titles (Repealed) Act (Chapter 281), section 62.

202 Chapter 283, Laws of Kenya.

203 See the preamble to the Act.

204 Ibid, section 2.

205 Ibid, section 4.

206 Ibid, sections 6 &7.

2.2.11 Registration of Documents Act207
This Act was enacted alongside the 1915 Crown Lands Ordinance. It set up
registries in Nairobi, Mombasa and Malindi. The rationale was to facilitate
registration of documents relating to transaction involving alienated Crown land.
Subsequently, the registries in Nairobi were closed down and their registers
transferred to Nairobi and Mombasa.208 The registration system encapsulated by it
was simple as the same had been conducted in Zanzibar. Since independence, the
Registration of Documents Act was only applicable to un-adjudicated claims at
the Coast.209
Under section 4 of the Act all documents conferring or purporting to confer,
declare, limit or extinguish any right, title, or interest, whether vested or
contingent to, in or over immovable other than such documents as may be
testamentary in nature, were required to be registered within one month after
their execution. If not registered, such documents could not be tendered in court
as evidence without the consent of the court. The Registrar nevertheless had the
power to refuse registration of a document.210

2.2.12 Registered Lands (Repealed) Act211

The Registered Land Act (Repealed) made ‘‘further and better provision’’ for the
registration of title to land, and regulated dealings in land registered under
it. Thus, the registration of interest under the Act freed the registered
proprietor from other parties. The Act provided that the registration of a person
as the proprietor of the land, vested in that person, the absolute ownership of
that land, together with all rights and privileges relating to the parcel.212
Further, the Act converted all “customary rights of occupation” into tenancies
from year to year, thus giving the registered owner the power, upon giving one
year’s notice, to terminate such occupation. This left several communities and
individuals, who had occupied the land over a long period of time, easily subject
to eviction from their ancestral land by a new registered owner.213 The Act
empowered the Minister (now Cabinet Secretary) to establish Land Registration
Districts in which Land Registry with maps of the land within the district were
maintained.

2.2.13 Agriculture Act214

This is an Act to promote and maintain stable agriculture, by providing for the
conservation of soil and its fertility and to stimulate the development of
agricultural land in accordance with the accepted practices of good land
management and good husbandry. The Act gives the Minister (now Cabinet Secretary)
for Agriculture wide powers in connection with preservation, land development
and management orders. Whenever the Minister (now Cabinet Secretary) considered
it necessary or expedient, for purposes of conservation of the soil erosion on

207 Chapter 285, Laws of Kenya.

208 Ojienda, supra, page 21.

209 Ojienda, supra, page 21.

210 Registration of Documents Act, section 5.

211 Chapter 300, Laws of Kenya.

212 Ibid, section 27.

213 See Okoth-Ogendo, HWO 1986. The perils of land tenure reform: the case of Kenya.
<www.unu.edu/unupress/unupbooks/80604e/80604E0c.htm>

214 Chapter 318 Laws of Kenya.

any land, he could, with the concurrence of the Central Agricultural Board, make
rules prohibiting, regulating or controlling certain activities by landowners.
These included prohibiting or stipulating regulations on the breaking or clearing
of land for purposes of cultivation, the grazing or watering of livestock, and
the firing, clearing or destruction of vegetation. More specifically, the
institutional structures under the Agriculture Act is summarized as illustrated
in the table below:

Section (s) Summary of Provision

Chapter 318

Annual and The Minister (now Cabinet

Special Reviews Secretary)was mandated to carry
- sections 5, 6, out, before 15 December of every
20 year an annual review of the
prospects of the agricultural
industry in a bid to determine
kinds of agricultural produce which
should be specified as scheduled
crops; prices thereof; guaranteed
prices for scheduled animal
products; essential crops and an
overall programme of production of
essential crops. This helped guide
Central Agricultural Board (CAB) in
exercising its powers to make
production approvals and
production orders. Special reviews
might also be carried out.

Fixing of Prices The Minister (now Cabinet

& Guaranteed Secretary), once an annual review
Minimum Prices- was carried out, in consultation
sections 7, 8, with the Minister (now Cabinet
9, 10 and 11 Secretary) responsible for
Finance, fixed prices for scheduled
crops as well as guaranteed minimum
returns for animal products.

Control of The Minister (now Cabinet

scheduled crops Secretary) controlled the
- sections 13, purchase, collection, storage and
14 marketing of all scheduled crops
and scheduled animal products.

Land Preservation Power to make Land Preservation

Orders – sections Orders vested with the Minister
48-62 (now Cabinet Secretary). Land
preservation orders could
prohibit, regulate or control
breaking or clearing of land for
cultivation; grazing or watering of
livestock; the firing, clearing or
destruction of vegetation
including stubble. The Minister
(now Cabinet Secretary) might also,
where necessary, make orders for
afforestation or re-afforestation
 of land; protection of slopes;
drainage of land and uprooting or
destruction of any vegetation or
supervision of unoccupied land;
prohibiting, restricting or
controlling the use of land for any
agricultural purpose including the
depasturing of stock. These powers
could be for the maintenance of
water in a body of water within the
meaning of the Water Act or for the
protection of roads, bridges,
railways or lines of communication.

Land Development The Minister (now Cabinet

Orders – section Secretary)was empowered to make
64 Land Development Orders requiring
land owners to comply with such
system of management or farming
practice or other system in
relation to the land in question
considered necessary for the proper
development of the land for
agricultural purposes.

Power to Central Agricultural Board might

compulsorily recommend to the Minister (now
acquire Cabinet Secretary) that an
unoccupied land – unoccupied land be acquired by the
section 186 Government for the purpose of sale
to the owner of the adjacent land.

District DAC advised and assisted Provincial

Agricultural Agricultural Committees on matters
Committees (DAC); referred to it and also advised the
Provincial Agricultural Finance Corporation.
Agricultural
Committees (PAC)
- sections 22 -
32

Central Advised the Minister (now Cabinet

Agricultural Secretary) on all matters of
Boards (CAB) – national agricultural policy; co-
sections 35-49; ordinated agricultural policy on
219-220 matters affecting more than one
province; advised the Minister (now
Cabinet Secretary) in the
determining of scheduled crops, and
on the fixing of prices.

Agricultural AFC was established to act as agent

Finance for the Central Agricultural Board
Corporation (AFC) in making advances to farmers.
– section 126

Agricultural Heard and determined agricultural

Appeals Tribunal disputes, including appeals where
 – sections 193- land preservation orders had been
197 made by the Director of Agriculture
and an appeal rejected by the
Minister (now Cabinet Secretary);
or where the Minister (now Cabinet
Secretary) made such Order;
apportionment of liability.
Appeals lied to the High Court.

2.2.14 Law of Contract Act215

This legislation imports the application English Common Law of Contract into
Kenya.216 Pursuant to it, the Common Law of England relating to contract, as
modified by the doctrines of equity, Acts of Parliament of the United Kingdom,
specified in the Schedule to the Act, extend and apply to Kenya.217
The mandatory procedure for disposing interest in land as couched in section
3(3) of the Law of Contract Act is as follows:
3. No suit shall be brought upon a contract for the disposition of an interest in
land unless
(a) The contract upon which the suit is founded:
i. Is in writing;
ii. Is signed by all parties thereto; and
(b) The signature of each party has been attested by a witness who is present when
the contract was being signed by such party.
Provided that this subsection shall not apply to a contract made in the course of
a public auction by an auctioneer within the meaning of the Auctioneers Act, nor
shall anything in it affect the creation of a resulting, implied or constructive
trust.
The provision implies that in the absence of a contract in writing; signed by all
parties to the contract; and attested to by such person that witnessed the signing
of the contract, no right or interest in land is capable of being disposed of
from a proprietor to another party. In a number of decisions, Courts struck out
suits for want of cause of action in the event that all or any of the requirements
of section 3(3) of the Law of Contract Act was not complied with. In Ol Loita
Road Limited v Kenya Commercial Bank Limited,218 the Court held that: “If a party
is seeking to endorse a contract in relation to land, the contract has to be in
writing and signed by the parties to it and witnessed as required by the section.”
In Western Pumps Limited v Joseph Wainaina Iraya T/A Queen Chick Inn and
another,219 while striking out the suit, the Court held as follows:
The first defendant pointed out that the plaintiff was trying to enforce a contract
for land, yet the alleged contract was unwritten. The state of affairs was said to be
contrary to the provisions of the Law of Contract Act, which requires any contract
for the disposition of an interest in land to be in writing…it is to be noted that

215 Chapter 23, Laws of Kenya.

216 See the preamble to the Act.

217 See section 2 of the Act.

218 Nairobi ELC number 593 of 2010.

219 Milimani High Court civil case number 186 of 2006 (UR).
 section 3(3) of the Law of Contract Act provides as follows...Pursuant to those
statutory provisions, it is my considered view that the plaintiff has failed to prove
that it has a prima facie case with a probability of success. It does not have any
contract in writing as between itself on the one hand, and the defendants on the other
hand. It would appear wholly inadequate for the plaintiff to seek to obtain an order
for specific performance of a contract between the second defendant and Queenchic Inn
Limited. In any event, even that agreement was not attested by any witness.
The same jurisprudence was consistently followed in Metra Investments Limited v
Gakweli Mohamed Warrakah,220 in which the Court, while striking out the case, held
that:
As the case is presented, there is no evidence that an agreement in writing exists
signed by both parties and witnessed as required by section 3(3) of the Law of Contract
Act. In the absence of such agreement, the section is clear that no suit shall be
brought for the disposition of an interest in land. The applicant does not appear
therefore, to have a prima facie case with a probability of success.
As will be demonstrated shortly, the requirements for disposition of interest in land
as encapsulated in section 3(3) of the Law of Contract Act has now been provided
for in the land laws enacted under the 2010 Constitution.

2.2.15 Indian Transfer of Property Act, (Repealed)1882

Generally, Land Titles Act (Repealed), Registration of Documents Act and
Registration of Titles Act (Repealed) were registration statutes. They only
provided for the registration of ascertained interests in land but not the manner
of dealing or transacting in the said interests. At the time of the enactment of
the said statutes, there was no general substantive law governing the conduct of
proprietary transactions or conveyancing.221 The Indian Transfer of Property Act
(ITPA) (Repealed) filled the void as the substantive law governing transactions
concluded under the Government Lands Act (Repealed) and the Land Titles Act.
(Repealed) The application of the Act in Kenya was enabled vide article 11(b) of
the 1897 East Africa Order–In-Council.222

2.2.16 Customary Law

Customary law governs majorly unwritten land ownership practices by certain
communities. Kenya being a diverse country in terms of its ethnic composition
has multiple customary tenure systems, which vary mainly due to different
agricultural practices, climatic conditions and cultural practices. However, most
customary tenure systems exhibit a number of similar characteristics as follows:
First, individuals or groups by virtue of their membership in some social unit
of production or political community have guaranteed rights of access to land
and other natural resources.223 Individuals or families thus claim property rights
by virtue of their affiliation to the group. Household access to land-based
resources such as fuel-wood, wild foods, grazing for subsistence livestock, water
and thatch grass was guaranteed without necessarily granting absolute ownership
of land to individuals.224

220 Milimani High Court civil case number 54 of 2006 (UR).

221 Ojienda, supra page 23.

222 Ibid.

223 Okoth-Ogendo; 1979, Land Tenure and its implication for the development of Kenya Semi-Arid Areas,
Nairobi, Institute of Development Studies, University of Nairobi.

224 Carney, D. (1998). Sustainable Rural Livelihoods: What Contributions can we make?”
 Secondly, rights of control are vested in the political authority of the unit
or community. This control is derived from sovereignty over the area in which
the relevant resources are located. Control is for the purpose of guaranteeing
access to the resources and is redistributive both spatially and inter-
generationally. Its administrative component entails the power to allocate land
and other resources within the group, regulate their use and defend them against
outsiders. 225
Rights created by customary norms applied under the Judicature Act,226 which
provided that customary laws were enforceable in courts, as part of the legal
system, to the extent that they were not repugnant to the Constitution and other
statutory laws.227 Customary laws were, however, not formal, and remained largely
unwritten, apart from those that found mention in court decisions as precedents.
As was observed by the Court in the case of Kimani v Gikanga and another,228 one
who sought to rely on any African Customary Law as a basis for a claim had to
prove its existence in evidence.229

Easement and Rules of Adverse Possession

Prescription rights entitle one to access, use and even own land. Easement is a
limited right to use another person’s land for a particular purpose. It limits
the owner on how he can exercise his rights over land in order to protect the
interest of the possessor of easement. Examples of easements are the right to
have a road through a person’s land, or the right to access water flowing from
a river that passes through a neighbour’s land. Easements are created in four
principal ways:
i. Expressly, where the owner of the land being used for easement makes an express,
written grant to another person;
ii. By reservation or exception, where a landowner who is conveying his land reserves
an easement himself;
iii. By implication, which requires some sort of necessity;
iv. By prescription, or under adverse possession.
Adverse possession arises where one seeks to acquire title to another’s property
without compensation, holding the property in a manner, which conflicts with the
true owner’s rights for a specific period. This arises from the Statute of
Limitation, prohibiting a suit after the passage of time since the arising of
the cause of action.230 Usually, the adverse possessor will be committing trespass
on the property that they have taken and the owner should have them evicted by
an action in trespass brought within a specific time. The effect of the landowner
failing to evict the adverse possessor within the specified period of limitation
for the suit extinguishes that person’s right and, therefore, the right becomes
vested on the adverse possessor.231

225 Ogolla, B D with Mugabe, J. 1996 Land Tenure Systems, In Land We Trust. Initiative Publishers, Nairobi
Kenya.

226 Chapter 8, Law of Kenya.

227 Section 3 of the Judicature Act.

228 [1965] EA 735.

229 See also Kaittany and another v Wamaitha [1995] LLR 2394 (CAK).

230 Limitation of Actions Act (Chapter 22), Laws of Kenya, section 3.

231 Ibid, section 17 states “at the expiry of the period prescribed by this Act for a person to bring an
action to recover land (including a redemption action), the title of that person to the land is extinguished.”
 Adverse possession requires the actual, visible, hostile, notorious, exclusive
and continuous possession of the property. It is a basis for a claim of title or
a claim of right. In Temo and others v Swaleh,232 the plaintiffs brought an
originating summons claiming title by adverse possession to a piece of land which
they said they had occupied until 1990, when the defendant claimed an interest
in it, by allegedly having bought it in 1978. Though the Court found that there
was no continuous, uninterrupted possession of the land by the plaintiffs, in
order to create adverse possession, it ruled that under the Land Titles Act, to
which the land was registered, the peculiar phenomenon of ‘‘houses without land’’
was recognised. Thus, it was held that the residential structures and commercial
plants on the portion of land occupied by the plaintiffs, which ordinarily by
definition would go with the land, belonged to the plaintiffs, and therefore,
reasonable compensation should be paid to them.

2.3 FRAMEWORK FOR INSTITUTIONAL MANAGEMENT AND REGULATION OF LAND UNDER THE CONSTITUTION
OF KENYA 2010

The implication of the 2010 Constitution on landholding, access and use in Kenya
is discussed detail in the previous chapter. The Constitution lays down broad
desired principles on regulating land access, management and use. The principles
are realised in legislation passed by Parliament and in other instances, by
County Assemblies for land matters exclusively regulated by Counties. Parliament
has enacted the following legislation to enforce the rights and obligations on
land under Chapter Five of the Constitution of Kenya: the Environment and Land
Court Act;233 the National Land Commission Act;234 the Land Act;235 and the Land
Registration Act.236 The Evictions and Resettlement Procedures Bill, 2012 and
the Community Land Act. Other legislations that also have a bearing on land
access, management and use include the County Governments Act,237 Matrimonial
Property Act,238 and the Urban Areas and Cities Act.239 Unlike under the previous
Constitution when land access, management and use was almost exclusively
undertaken by the President, Minister (now Cabinet Secretary) responsible for
Land, Commissioner for Lands and Local Authorities, the management of and has
now been institutionalised. This is through the establishment of the National
Land Commission under article 67(1) of the Constitution of Kenya.

2.3.1 Background to the Establishment of the National Land Commission

It is critical that the mandate of the National Land Commission is understood in
the context of history of land ownership, access and use in Kenya. Chapter Five
of the Constitution of Kenya was enacted against an unpleasant background. There
were historical injustices on land ownership, access and use that the Constitution
of Kenya sought to address. Most commented historical injustice has been the
squatter problem at the Coast. As documented in the Report of the Commission of
Inquiry into the Land System of Kenya on principles of a National Land Policy

232 Miscellaneous civil suit number 155 of 1993 (OS) 1 KLR, 469.

233 Number 19 of 2011.

234 Number 5 of 2012.

235 Number 6 of 2012.

236 Number 3 of 2012.

237 Number 3 of 2012.

238 Number 49 of 2013.

239 Number 13 of 2011.

Framework, Constitutional Position of Land, and New Institutional Framework for
Land Administration, in the early 1800s, Arab traders from Arabia and Persia,
under the leadership of the Sultan of Zanzibar, invaded the Coastal region at a
time when land was communally owned and utilized at the Coastal region by the
local communities at the Coast. The local communities were the Mijikenda
(comprising the Giriama, Digo, Chonyi and Duruma, among others) and the Taita
and Pokomo.
The activities of the Arabs, particularly their heavy involvement in slave
trade and direct forceful evictions made many indigenous communities, especially
the Mijikenda to flee areas they were occupying around the beaches in fear of
being captured and sold as slaves. It is the beach land that today comprises the
most prime land in Kenya.240 At the time of the arrival of the British, the
Arabs, under the leadership of the Sultan of Zanzibar, had already established
their control of the Coast. This informed the signing of concession agreements
between the Sultan of Zanzibar and the Imperial British East Africa Company
(IBEA) in 1888 and 1895 in which all rights to land along the Coastal strip,
except “private lands” (which were land held under certificates of ownership
issued by the Sultanate), were ceded to IBEA.
The Coastal strip runs from Vanga, at the border with Tanzania to Kipini on
the mouth of River Tana, together with Lamu Archipelago. The so-called “private
lands”, exempted from control of IBEA under the concession agreements’ were not
land held by indigenous communities, but land held by Arabs under certificate of
ownership issued by the Sultanate, having either violently evicted the indigenous
communities or caused the indigenous communities to flee from being sold as
slaves. The concession agreements of 1888 and 1895 actually terminated the land
rights of indigenous Africans at the coast, particularly, the Mijikenda, Taita
and Pokomo.
In 1899, the British extended the application of the Indian Land Acquisition
Act, 1894 to the East Africa Protectorate (including Kenya to enable them deal
with land in the region including Kenya. The effect of the foreign legislation
was to “convert all land in Kenya that had not been appropriated by individuals
or by the colonial administration into ‘Crown Land’ belonging to Her Majesty,
the Queen of England, which she could grant in leaseholds for a term of years or
in fee simple. The legislation did not precisely define what would constitute
“Crown land”. The Report of the Select Committee on the Issue of Land Ownership
Along the Ten-Mile Coastal Strip of Kenya documents that in order “to put to rest
any claims by indigenous inhabitants of the Coastal Strip to land ownership”;
“to determine accurately how much land was owned privately”; and “to determine
which land along the Coastal Strip was available for disposal, the British
colonial administration enacted the Land Titles Ordinance of 1908 with limited
application to the Coastal Strip.
The Land Titles Ordinance of 1908 required all persons who claimed interest
in land along the Coastal Strip to lodge their claims with a Land Registration
Court presided over by Recorder of Titles. Where a Recorder of Titles was
satisfied that a claim was valid, a certificate of ownership would issue to the
claimant “as conclusive proof that the person to whom such certificate is granted,
is the owner of the land.” All land for which no claim or claims for a certificate
of ownership was made was deemed as “Crown Land.” 241
The Report of the Select Committee on the Issue of Land Ownership Along the
Ten-Mile Coastal Strip of Kenya further documents that the indigenous communities

240 Report of the Commission of Inquiry into the Land System of Kenya on Principles of a National Land
Policy Framework, Constitutional Position of Land, and New Institutional Framework for Land Administration,
page 21.

241 See Report of the Select Committee on the Issue of Land Ownership Along the Ten-Mile Coastal Strip of
Kenya, page 2.
at the Coast did not lodge their claims to be issued with Certificate of Ownership
over the land along the Coastal Strip for the following reasons:
First of all, the indigenous people of the strip had no knowledge of the existence of
the Ordinance. Even if they did, they never understood its provisions. Secondly, the
Ordinance had no relevance to indigenous conceptions of land tenure. That they should
be asked to lay claims upon the soil was a startling preposition. Third, the Ordinance
was clearly biased against these people. For the colonial government and courts
believed that no African, whether as an individual or community had any title to land.
Hence, for purposes of the 1908 and other colonial land Ordinances, land occupied by
Africans was always treated as ownerless. Fourth, the actual investigations of claims
were done mainly by Mudris – usually Mazrui Arabs absorbed into the colonial
administration – who were generally unsympathetic to the indigenous people. Fifth,
the time limit within which claims could be made was extremely short. And indeed after
1922, claims would no longer be received at all. Besides, when in 1926 three “native
reserves” were established in Kwale and Kilifi, any further doubts about the
possibility of ever receiving claims from indigenous coastal people were laid to rest.
242

Unlike Mainland Kenya which was under the control of the colonial government
during colonization (from 1895 to 1963, first, as a protectorate and,
subsequently, as a colony), the ten-mile Coastal Strip remained under the Sultan
of Zanzibar until 1963, when the Sultan renounced sovereignty over the Strip
following the signing of an agreement between the British, Kenya and Zanzibar
governments, effectively integrating the Coastal Strip into independent Kenya.243
From the year 1926, the British colonial administration confined the indigenous
Africans to three “native reserves” outside the ten-mile Coastal Strip, in Kwale
and Kilifi. Thus, even those indigenous Africans at the Coast who continued
occupying their land along the Coastal Strip after it was “acquired” by Arabs
and the British, they were compelled to move out of it into the designated
reserves. Even in post-independent Kenya, land that was designated as “native
reserves” remained in the “collective unregistered ownership and use of a
community as communal land;” The communal land was subsequently alienated to few
members/occupants of the “native reserves” or sold to persons outside the
community, leaving the original occupants of the “native reserves”, as squatters
or landless.244
In Mainland Kenya, the Indian Land Acquisition Act of 1894, which the British
Colonial administration imported into Kenya, vested “all unoccupied land”
including land over which indigenous communities shifted back and forth for
cultivation and grazing in the Crown. The Act allowed for acquisition of land
for the construction of government premises and roads; and it empowered the
Commissioner for the Protectorate to allocate land to settlers on leases,
initially for periods not exceeding 21 years, and as from 1897, for periods not
exceeding 99 years. The British colonial administration enacted two more
ordinances that compounded the problem of land ownership by indigenous Africans
in Mainland Kenya. Firstly, the East Africa Order-In-Council of 1901, which
authorised the Commissioner to alienate “Crown Land,” that is, alienate “all land
under the control of the Queen through agreement, treaty or convention and all
other land that the Queen was to acquire.” Secondly, the Crown Land Ordinance of
1902, which empowered the British High Commissioner to Kenya Protectorate to
“acquire land, including land in native settlements and villages and to sell land

242 Ibid, page 3.

243 Tri-partite Agreement between the British, Kenya and Zanzibar governments.

244 Report of the Select Committee on the Issue of Land Ownership Along the Ten-Mile Coastal Strip of
Kenya.
acquired to any settler in lots not exceeding 1,000 hectares. 245 Through the
Kenya (Native Areas) Ordinance of 1926, and the Crown Land Ordinance of 1915,
the colonial administration not only designated and formally recognised native
reserves occupied by Africans, but also empowered the Crown to control allocation
and use of the native reserves and movement within and between the lands.246
In the year 1954, the colonial administration developed a policy commonly
known as the Swynnerton Plan, which provided, among other things, a process of
land adjudication, consolidation and registration of adjudicated parcels of land
in the name of those identified as owners. However, under the Plan, land was
registered in the names of present male-heads of households who were conferred
use rights without recognition of use rights of female heads of households, whose
husbands were still operating in the Mau Mau, largely outside of designated
settlement areas. The Plan also did not recognise the use rights of those whose
husbands had died.247
The tenor and spirit of the draconian land laws and policies passed by the
colonial administrations were carried wholesome to the former Constitution and
other land laws enacted or adopted at independence. The independence Constitution
of Kenya at section 75 thereof; sections 27 and 28 of the Registered Land Act
(Repealed); and section 23 of the Registration of Titles Act (Repealed) upheld
the sanctity of title to land, and ruled out the possibility that historical
claims would be a basis for land distribution in independent Kenya. Section 3 of
the Government Lands (Repealed) Act empowered the state to act like a private
owner of land. The President was vested with great unilateral power and authority
to make grants or dispositions of any estates, interests or rights in or over
un-alienated government land. The President would also delegate some of such
powers to the Commissioner of Lands.
Section 9 of the Government Lands Act (Repealed) empowered the Commissioner
for Lands to cause any portion of a Township Plot “not required for public
purposes” to be divided into plots suitable for erection of buildings for business
or residential purposes. Under section 12 of the Act, these plots would be sold
by “auction unless the President ordered otherwise.” Sections 19 and 20 of the
Government Lands Act (Repealed) empowered the Commissioner for Lands to cause
agricultural land to be divided into farms which farms would be sold by “auction
unless the President ordered otherwise.” Under Chapter IX of the independence
Constitution, the President or a County Council holding trust land on behalf of
local community was empowered to set apart trust land. Setting apart removed
trust lands from community ownership and placed them under the dominion of public
ownership.
Communal ownership of trust land could also be lost through adjudication and
registration which placed trust lands under individual ownership. Justice Angote,
in the case of Mohamed Ahmed Khalid (Chairman) and others v Director of Land
Adjudication and others summarized the law regulating management and
administration of government land and trust land under the former Constitution
as follows:
I discussed at length the distinction between Government Land and Trust Land under
the repealed Constitution in Malindi Land case number 168 of 2012; Bahola Mkalindi v
Michael SethKaseme and others. That distinction is blurred under the current
Constitution. In the said case, I stated that the distinction is important because
the law regulating dealings in Trust Land is different from the legal regime regulating

245 See the East Africa Order In Council, 1901 and the Crown Land Ordinance, 1902.

246 See the Kenya (Native Areas) Ordinance, 1926 and the Crown Land Ordinance, 1915.

247 The Swynnerton, R.M.J., (1954), A Plan to Intensify the Development of African Agriculture in Kenya,
Nairobi: Government Printer.
Government Land under the repealed Constitution. In view of the petitioner’s claim,
I shall reproduce my views in that case in these proceedings. Under the repealed
Constitution and the Trust Land Act, trust lands are neither owned by the Government
nor by the County Councils within whose area the land falls under. The County Council
simply held such land on behalf of the local inhabitants of the area. For as long as
Trust land remained unadjudicated and unregistered, it belonged to the local tribes,
groups, families and individuals of the area. Once adjudicated and registered, Trust
land is transformed into private land. That is what the provisions of sections 114,
115 and 116 of the repealed Constitution provided. Indeed, section 115(2) of the
repealed Constitution provided that Trust land could only be dealt with in accordance
with the African Customary Law vested in any tribe, group, family or individual. The
former Constitution also provided that the only way Trust land could be legally removed
from the purview of communal ownership of the people was through adjudication and
registration or setting apart. Adjudication and registration of Trust land removed
the particular land from the purview of community ownership and placed it under
individual ownership while setting apart removed Trust land from the dominion of
community ownership and placed it under the dominion of public ownership. Trust land
could only be allocated legally pursuant to the provisions of the Constitution, the
Trust Land Act and the Land Adjudication Act. The repealed Constitution, at section
115(4) mandated Parliament to make provisions under an Act of Parliament with respect
to the administration of Trust land by a County Council. Consequently, Parliament
enacted the Trust Land Act, the Local Government Act (repealed) and the Town Planning
Act which was repealed and replaced with the Physical Planning Act in 1996. These
statutes, amongst others, allowed County Councils to deal and administer Trust land
on behalf of the residents of their respective areas. Section 117(1) of the repealed
Constitution allowed, through an Act of Parliament, County Councils to set apart any
area of Trust land vested in a County Council for use and occupation by a public body;
or for purpose of the prospecting for or for the extraction of minerals or by any
person for a purpose which in the opinion of the County Council is likely to benefit
the person ordinarily resident in that area or any other area of Trust land vested in
that County Council either by reason of the use to which the area so set apart is to
be put or by reason of the revenue to be derived from rent in respect thereof. Where
an area of Trust land has been set apart by the County Council for the purposes that
I have enumerated above, section 117(2) of the repealed Constitution provided that
any rights, interests or other benefits in respect of that land that were previously
vested in a tribe, group, family or individual under African customary law shall be
extinguished. However, under section 117(4) of the repealed Constitution, the setting
apart of Trust land shall be of no effect unless the prompt payment of full compensation
of any resident of the land set apart who under the African customary law had a right
to occupy any part or was in some other way prejudicially affected by the setting
apart. Trust land could also be set apart for Government purpose. Under section 118(1)
of the repealed Constitution, if the President was satisfied that the use and
occupation of an area of Trust land was required for the purpose of the Government of
Kenya or for a body corporate or for the purpose of the prospecting for or the
extraction of minerals, such land would be set apart accordingly and was vested in
the Government of Kenya or such other person or authority. If Trust land was set apart
for the purpose of the Government, the Government was required to make prompt payment
of full compensation if the setting apart extinguished any estate, interest or right
in or over the land that would have been vested in any person or authority. Other than
Trust land which was set apart for Government purpose, the Government also had land
which was not Trust land. This was land which was not within the “Special areas” as
specified in the Trust Land Act and which was on 31 May 1963 vested in the Trust Land
Boards. Government land was the land that was vested in the Government of Kenya by
dint of sections 204 and 205 of the Constitution that was contained in Schedule 2 of
the Kenya Independence Order in Council, 1963 and sections 21, 22, 25 and 26 of the
Constitution of Kenya (Amendment) Act, 1964. The enactment of the Government Lands
Act, Chapter 280 replaced the 1915 Crown Lands Ordinance. The Government Lands Act
was enacted to make further and better provisions for regulating the leasing and other
depositions of Government Land. Under this Act, it is only the President who could
 sign documents granting title although he would delegate these powers to the
Commissioner of Lands. Un-alienated Government land was not Trust land in that it was
not vested in local communities and it was not held in trust for them by a County
Council. Unlike Trust land, the County Councils had no role to play at all in the
allocation of un-alienated Government land. They could not even purport to administer
such land on behalf of the Government. According to the provisions of section 53 of
the Trust Land Act, Chapter 288, the Commissioner of Lands was allowed to administer
Trust land of each Council as an agent for the Council and for that purpose he could
execute on behalf of the Council such grants, leases, licenses and other documents
relating to Trust land. 248
The Ndung’u Report details the incidences of abuse of discretion committed by
various Kenyan Governments and other State agencies from Independence by
illegally and or irregularly allocating public land. Instead of appropriating
un-alienated and alienated government land situated in cities, municipalities
and townships to develop public roads and highways, recreational parks,
playgrounds, stadia, public schools, hospitals, markets, fire stations, police
stations, monuments, cemeteries, housing estates, research institutions and other
public utilities, the Kenyan government and their State agencies devised various
methods to grab such public land as follows:
The Commission found that many methods were used to grab public land, which
included:
1. Direct allocations by the President and the Commissioner of Lands contrary to the
law;
2. Illegal surrenders of Ministries and State Corporations land and subsequent illegal
allocations;
3. Invasion of government and trust lands and subsequent acquisition of title thereto
contrary to the law;
4. Allocations of land reserved for the use of state corporations or ministries;
5. Allocation of trust land contrary to the Constitution and related laws;
6. Allocation of lands reserved for public purposes;
7. Allocation of riparian reserves and sites;
8. Allocation of land compulsorily acquired by Government for a public purpose to
individuals and companies; and
9. Alteration and destruction of records at the Ministry of Lands to facilitate
double allocations.249
State corporations have their core businesses set out in the legislation under
which they are established. State corporations are not land buying companies;
purchase and disposition of land should ordinarily be incidental to their core
businesses. The Ndung’u Report documents that Kenyan government and State
agencies devised methods to grab public land by using state corporations as
conduits as follows:
(a) The Commissioner of Lands would reserve or set aside un-alienated Government land
for the use of State Corporations, and once alienated, the Government land would
be allocated to individuals or companies;
(b) State Corporations’ were pressurized to purchase illegally acquired public land.
“An individual would be allocated public land illegally, obtain consent from the
Commissioner of Lands, and then proceed to sell the land to a specific state

248 Mohamed Ahmed Khalid (Chairman) and others v Director of Land Adjudication and others, Malindi ELCC
number 3 of 2013.

249 Report of the Commission of Inquiry into the Illegal/Irregular Allocation of Public Land, 2004 (“Ndung’u
Report”), Part Four.
 corporation for millions of shillings…in 2001, land which was part of Ngong’ Forest
was illegally excised, subdivided into thirty two (32) plots, and then allocated
to thirteen (13) companies…”
(c) Commissioner of Lands facilitated exchange of state corporations’ land with non-
existent land in favour of an individual or a company;
(d) State corporations land was illegally allocated to individuals and companies in
total disregard of the law and public interest. The allocation of corporation land
was made in favour of “politically” correct individuals in the former regimes.250
According to the Ndung’u Report, land allocated to ministries was usually grabbed
hrpugh the following process:
(a) Ministry officials colluded with the Commissioner of Lands to allocate Ministries’
land through surrender; and
(b) Thousands of Government houses and properties were illegally allocated to
individuals and companies. Some of the allotees then sold the houses to state
corporations.251
Regarding settlement schemes and trust lands, the Report documents that:
(a) Land in settlement schemes was allocated to personalities who were entirely
undeserving. The beneficiaries were often neither “landless” nor possessed unique
skills or facilities to be able to use the land in agriculturally productive manner
as to benefit the country;
(b) Plots initially reserved for public purposes in settlement schemes ended up being
allocated to individuals on orders of Provincial Administration;
(c) Settlement schemes were established as personal initiative of the President to
settle specific groups of people in designated areas;
(d) Councils and Commissioner of Lands allocated to individuals and companies trust
land which had neither been adjudicated nor set apart, and letters of allotment
and grants of title issued. Councillors were the major beneficiaries of such
allocations. Examples of trust lands that were illegally allocated to individuals
include:
• Iloodo-Ariak and Mosiro Adjudication sections in former Kajiado District;
• Kimuri “A” Adjudication section in Meru;
• Fourteen Falls land in Thika;
• Holding Grounds and Livestock Routes in the former Narok, Kajiado and Laikipia
Districts; and
• Hill Farm, Kamwenja, Mathari in the former Nyeri District.252
Lastly, regarding forestlands, national parks, game reserves, wetlands, riparian
reserves and protected areas, the Ndung’u Report documents that:
(a) The Commissioner of Lands facilitated allocation of forestlands to “private
developers” case in point being the Karura Forest. Environmentally sensitive
ecosystems such as water catchment areas, steep slopes, hills and marshes were
allocated to individuals;
(b) Settlement schemes were established in forest areas ostensibly to resettle
indigenous communities whose lifestyles depend on forest habitats such as the
Ogiek. It turned out that the real intention for hiving off the forest land was

250 Ibid.

251 Ibid.

252 Ibid.
 to establish a tea zone by the KANU regime, case in point being Kiptagich Tea
Estate Limited;
(c) The Commissioner of Lands facilitated issuance of Title on riparian sites,
including around rivers, lakes and the ocean, and titles issued to individuals,
cases in point being a chain of islands in Kwale; areas around Lake Naivasha; and
Malindi Robinson Island.253
The common thread in the foregoing is that grabbing and plunder of public land
was facilitated by the Presidency, Commissioner of Lands, Ministry of Land,
Provincial Administration and Local Authorities for the key reason that the power
to administer and alienate public land vested in the President and could be
delegated to the Commissioner of Lands. It is for this reason that the Ndung’u
Report recommended, inter alia, that:
[A] National Land Commission be established to deal with all land matters in the
country. The Commission should be vested with powers of allocating public and
supervising the management and allocation of Trust land....section 3 and all other
sections in the Government Lands Act which empower the President or the Commissioner
of Lands to make grants of un-alienated Government Land should be repealed.254
The National Land Policy captured the aspirations of the Ndung’u Report by setting
out the justification, structure, mandate and autonomy of the National Land
Commission variously. On justification for the establishment of the National Land
Commission, paragraph 228 of the National Land Policy provides as follows:
The existing institutional framework for land administration and management is highly
centralized, complex and exceedingly bureaucratic. As a result, it is prone to
corruption and has not been able to provide efficient services. In addition, it does
not adequately involve the public in decision making with respect to land
administration and management, and is thus unaccountable.255
On the mandate of the National Land Commission (NLC), paragraph 233 of the
National Land Policy provides as follows:
The NLC shall have the following functions:
(a) Hold title to and manage public land on behalf of the State;
(b) Establish and maintain a register of all public, private and community land in the
country;
(c) Ensure the realization of the multiple values of land, namely, economic
productivity, equity, environmental sustainability and conservation of national
heritage;
(d) Exercise the powers of compulsory acquisition and development control on behalf
of the State and local authorities or governments;
(e) Levy, collect and manage all land tax revenues except rates which shall be collected
by local authorities or governments;
(f) Develop the capacity of both DLBs (District Land Boards) and CLBs (Community Land
Boards);
(g) Provide technical services and coordinate the work of DLBs and CLBs through
establishment of NLC district offices;
(h) Establish a Land Policy Research Centre (LPRC) in partnership with universities
and research institutions to coordinate land policy research;

253 Ibid.

254 Ibid.

255 See the National Land Policy, Sessional Policy, Sessional Paper number 3 of 2009, paragraph 228.
 (i) Establish and manage a National Land Trust Fund (NLTF) to mobilize and pool
financial resources for implementing this policy. The NLTF shall be administered
by the NLC; and
(j) Provide technical support to the Ministry in-charge of land in preparation and
implementation of a national land use policy and other related policies.256
On independence and accountability of the National Land Commission, paragraphs
235-237 of the National Land Policy provide as follows:
“235. The existing legislative practice of giving Minister (now Cabinet Secretary)
the “power to give directions of a general nature” to public agencies has
invariably compromised their independence including agencies dealing with land;
236. The NLC should be accorded sufficient autonomy and independence to perform
its functions effectively and fairly. It should however be accountable to the
people of Kenya.
237. In order to ensure the independence and accountability of the NLC, the
Government shall enact a ‘National Land Commission Act’ to
(a) Grant NLC operational autonomy;
(b) Require the NLC to be accountable to Parliament for its operations;
(c) Require ministerial policy directions to the NLC to be laid before Parliament
in writing; and
(d) Facilitate public participation and application of democratic principles in
the establishment and management of the NLC.”257
The recommendations of the Ndung’u Report and the provisions of the National Land
Policy, were substantially carried into article 67(2) of the Constitution of
Kenya that sets out the mandate of the Commission. With the foregoing background
in mind, the author proceeds to analyse how various land legislations enforce
the provisions of Chapter Five of the Constitution of Kenya.

Institutional Administration and Management of Public Land

Article 62(2) of the Constitution mandates the National Land Commission to
administer public land on behalf of county governments. The provisions state as
follows:
“(2) Public land shall vest in and be held by a county government in trust for
the people resident in the county, and shall be administered on their behalf by
the National Land Commission, if it is classified under
(a) Clause (1)(a), (c), (d) or (e); and
(b) Clause (1) (b), other than land held, used or occupied by a national State
organ.”
The category of public land referred to in article 62(2) of the Constitution
includes:
(i) Government land that was un-alienated as at the effective date of the Constitution
of Kenya;
(ii) Land transferred to the State by way of sale, reversion or surrender;
(iii) Land in respect of which no individual or community ownership can be
established by any legal process;
(iv) Land in which no heir can be identified by any legal process; and

256 Ibid, paragraph 233.

257 Ibid, paragraphs 235-237

 (v) Land lawfully held, used or occupied by a State organ, excepting land occupied by
a State organ as a private lessee, or land held used or occupied by a national
State organ.
Secondly, article 62(3) of the Constitution mandates the National Land Commission
to administer public land on behalf of the national government. The provision
states as follows:
(3) Public land classified under clause (1) (f) to (m) shall vest in and be held by
the national government in trust for the people of Kenya and shall be administered
on their behalf by the National Land Commission.
The category of public land referred to in article 62(3) of the Constitution
includes:
(i) All minerals and mineral oils as defined by law;
(ii) Government forests other than community forests, grazing areas or shrines;
government game reserves; water catchment areas; national parks; government animal
sanctuaries; and specially protected areas;
(iii) All roads and thoroughfares provided for by an Act of Parliament;
(iv) All rivers, lakes and other water bodies as defined by an Act of Parliament;
(v) The territorial sea, the exclusive economic zone and the seabed;
(vi) The continental shelf;
(vii) All land between the high and low water marks; and
(viii) Any land not classified as private or community land under the Constitution.
Thirdly, article 67(2)(a) of the Constitution of Kenya mandates the National Land
Commission “to manage public land on behalf of the national and county
governments.” Article 67(3) of the Constitution of Kenya mandates the National
Land Commission to “perform any other functions prescribed by national
legislation.” One such national legislation is the National Land Commission Act.
Section 5(2)(e) of the National Land Commission Act mandates the National Land
Commission to: “Manage and administer all unregistered trust land and
unregistered community land on behalf of the county government.”
Therefore, the provisions of articles 62(2), 62(3), 67(2)(a) and 67(3) of the
Constitution of Kenya; and section 5(2)(e) of the National Land Commission Act
mandate the National Land Commission to “manage” and to “administer” public land,
unregistered trust land, and unregistered community land. Indeed, the mandate of
the National Land Commission to “manage” and “administer” public land,
unregistered trust land and unregistered community land has been confirmed in a
number of Court decisions. In the case of the Republic v County Government of
Kiambu and others, Justice GV Odunga, while addressing the question as to whether
it was still the mandate of the County Government of Kiambu and the Municipal
Council of Kiambu to alienate trust land, held as follows: at paragraph 28 of
the Judgment:
“…there is now National Land Commission established under article 67 of the
Constitution and one of its functions is to manage public land on behalf of the
national and county governments. Article 62(2) of the Constitution provides that Public
land shall vest in and be held by a county government in trust for the people resident
in the county, and shall be administered on their behalf by the National Land Commission
while under article 62(3) thereof Public land classified under clause (1) (f) to (m)
shall vest in and be held by the national government in trust for the people of Kenya
and shall be administered on their behalf by the National Land Commission. Under
article 62(4) Public land shall not be disposed of or otherwise used except in terms
of an Act of Parliament specifying the nature and terms of that disposal or use. Since
the land the subject of this application is held by a county government in trust for
the people resident in the county, it falls under public land which under the foregoing
provision cannot be disposed of or otherwise used except in terms of an Act of
 Parliament. It is therefore clear that the decision whether or not to alienate public
land is no longer the preserve of the first or third respondent. To compel the said
respondents to issue leases to the applicant in respect of the suit premises would be
to compel them to take an action which is not within their jurisdiction yet an order
of mandamus will not issue to compel an illegal action or an action which the respondent
has been divested of jurisdiction to perform since mandamus only issues to compel the
performance of a duty which the respondent is legally obliged to perform...”258
Justice Majanja in the case of Serah Mweru Muhu v Commissioner of Lands and
others, held as follows:
As I conclude, I note that following the overhaul of land management in the country
following the promulgation of the Constitution and the establishment of the National
Land Commission, the office of the Commissioner of Lands ceased to have overall
responsibility over land management in the country. I also take judicial notice that
it was not until 20 February 2013 that the Commission’s members were gazetted. Thus,
the Commissioner was at all material times the office responsible for the matters at
hand. Under article 67 of the Constitution, the National Land Commission is established
to, inter alia, manage public land on behalf of the national and county governments
and to monitor and have oversight responsibilities over land use planning throughout
the country. The Commission under section 5(2) of the National Land Commission Act
(number 5 of 2012), also bears other responsibilities including to alienate public
land on behalf of, and with the consent of the national and county governments,
monitoring the registration of all rights and interests in land and ensuring that
public land and land under the management of designated state agencies are sustainably
managed for their intended purpose and for future generations.259
In a dispute seeking an order of mandamus against the Commissioner of Lands,
hence Ministry of Lands, to compel the Commissioner of Lands to alienate public
land, Justice Odunga in the case of Commissioner of Lands and another v Kithinji
Murugu M’agere, declined to grant the Order of mandamus against the Commissioner
of Lands, on the ground that the Commissioner of Lands, hence the Ministry, no
longer had mandate to administer or manage public land. The learned Judge opined
as follows:
…there is now National Land Commission established under article 67 of the Constitution
and one of its functions is to manage public land on behalf of the national and county
governments. Article 62(2) of the Constitution provides that Public land shall vest
in and be held by a county government in trust for the people resident in the county,
and shall be administered on their behalf by the National Land Commission while under
article 62(3) thereof Public land classified under clause (1)(f) to (m) shall vest in
and be held by the national government in trust for the people of Kenya and shall be
administered on their behalf by the National Land Commission. Under article 62(4)
Public land shall not be disposed of or otherwise used except in terms of an Act of
Parliament specifying the nature and terms of that disposal or use. Since the land
the subject of this application is held by a county government in trust for the people
resident in the county, it falls under public land which under the foregoing provision
cannot be disposed of or otherwise used except in terms of an Act of Parliament. It
is therefore clear that the decision whether or not to alienate public land is no
longer the preserve of the second respondent. To compel the second respondent to issue
leases to the applicant in respect of the Miritini land would be to compel him to take
an action which is not within his jurisdiction. As already stated herein above an
order of mandamus will not issue to compel an illegal action…260

258 Republic v County Government of Kiambu and others [2014] eKLR.

259 Serah Mweru Muhu v Commissioner of Lands and others, Nairobi High Court Petition No 413 of 2012 [2014]
eKLR.

260 Commissioner of Lands and another v Kithinji Murugu M’agere, Nairobi High Court miscellaneous
application number 395 of 2012.
In the exercise of its mandate to administer and manage public land, various
statutory provisions enjoin the National Land Commission to undertake concomitant
functions in respect of public land. The concomitant functions are necessary to
enable the National Land Commission to effectively administer and manage public
land. One of such functions is the mandate of the National Land Commission to
dispose of, alienate or in any other way affect interest in public land. Various
statutory provisions confer this function on the National Land Commission.
Section 5(2)(a) of the National Land Commission Act, in mandating the National
Land Commission to alienate public land states that:
“(2) In addition to the functions set out in subsection (1), the Commission shall,
in accordance with article 67(3) of the Constitution – (a) on behalf of, and with
the consent of county governments, alienate public land.”261
Section 12(1) of the Land Act262 reinforces the mandate of the National Land
Commission to alienate public land as follows:
The Commission may, on behalf of the national or county governments, allocate public
land by way of:-
(a) Public auction to the highest bidder at prevailing market value subject to and not
less than the reserved price;
(b) Application confined to a targeted group of persons or groups in order to ameliorate
their disadvantaged position;
(c) Public notice of tenders as it may prescribe;
(d) Public drawing of lots as may be prescribed;
(e) Public request for proposals as may be prescribed; or
(f) Public exchanges of equal value as may be prescribed.263
The National Land Commission is also mandated to allocate public land to foreign
governments in terms of section 12(5) of the Land Act, which states as follows:
(5) Subject to the Constitution, and any other law, the Commission may, in consultation
with the National and county governments, allocate land to foreign governments on
a reciprocal basis in accordance with the Vienna Convention on Diplomatic
Relations.”
Further, section 15(1) of the Land Act mandates the applicant to reserve public
land for purposes in the public interest. The section states as follows:
(1) Subject to article 66(1) of the Constitution, the Commission may, in consultation
with the national government and the county governments, by order in the Gazette,
reserve public land allocated within:
(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 air above the surface, for one of more purposes in the public interest.
Thus, the foregoing listed legislative provisions confirm that the mandate to
dispose of or affect interest in public land now vests with the National Land
Commission, unlike the previous legislative framework where the President,

261 See National Land Commission Act number 5 of 2012, section 5(2)(a).

262 No. 6 of 2012.

263 Section 12(1) of the Land Act.

Commissioner of Lands and Local Authorities were mandated to dispose of public
land and trust land. There are of course necessary safeguards in place, for
instance, under article 62(4) of the Constitution, which require that disposal
of public land must be sanctioned by an Act of Parliament; and the need for
consent of the national government or respective county government to consent to
such disposal before the conveyance of the land can be valid.
The procedure to follow in alienating public land both under previous
Constitution and the 2010 Constitution of Kenya 2010 was explained by Justice
Angote in the case of Hassan HashiShirwa and another v Swaleh Mohamed and others.
In summary, the Judge explained the procedure as follows:
• The Government Lands Act (now repealed), which replaced the 1915 Crown Lands
Ordinance, was enacted to make further and better provisions for regulating the
leasing and other depositions of Government Land. Under this Act, it is only the
President or the Commissioner of Lands who was allowed to make grants or disposition
over unalienated Government land. The President would then sign documents granting
title although he could delegate these powers to the Commissioner of Lands.
• Unalienated Government land, under the repealed Constitution and the Government
Lands (Repealed) Act, unlike trust land, was not vested in local communities and
it was not held in trust for them by the County Government land, as defined by the
Government Lands (Repealed) Act, was land that was vested in the Government of
Kenya by dint of sections 204 and 205 of the Constitution that was contained in
Schedule 2 of the Kenya Independence Order in Council, 1963, and sections 21, 22,
25 and 26 of the Constitution of Kenya (Amendment) Act, 1964.
• The Government Lands Act (now repealed), which replaced the 1915 Crown Lands
Ordinance, was enacted to make further and better provisions for regulating the
leasing and other depositions of Government Land. Under this Act, it is only the
President or the Commissioner of Lands who was allowed to make grants or disposition
over unalienated Government land. The President would then sign documents granting
title although he could delegate these powers to the Commissioner of Lands.
• Unalienated Government land, under the repealed Constitution and the Government
Lands (Repealed) Act, unlike trust land, was not vested in local communities and
it was not held in trust for them by the County Councils.
• Alienation of public land began by the Government issuing a letter of allotment
stating the stand premium and other charges that the allottee would pay to the
Commissioner of Lands within a specified period. The letter of allotment would be
accompanied by a Part Development Plan (PDP)bearing a specific number prepared by
the Director of Physical Planning under the provisions of section 5(1)(b) of the
Physical Planning Act ... The development plans could be “regional physical
development plan,” meaning “a plan for the area or part thereof of a county
council”; or “a local physical development plan” meaning “a plan for the area or
part thereof of a city, municipal, town or urban council and includes a plan with
reference to any trading or marketing centre.” Alienation could only be effected
legally after the planning process was completed. It is during the planning process
that the Physical Planner is supposed to ascertain if indeed the land in question
is available for allocation and advise the Commissioner of Lands accordingly. A
Part Development Plan prepared by a Physical Planner and approved by the Director
of Physical Planning and the Commissioner of Lands was sufficient evidence of the
availability of the then Government land for alienation.
• Using a letter of allotment and Part Development Plan, a surveyor would undertake
survey upon the land earmarked for alienation. Upon completion of survey, the
surveyor was required to prepare and forward to the Director of Surveys several
documents showing that he had completed the survey of land represented in the Part
Development Plan. The documents included field notes, the surveyor’s report, index
to comps, computations, survey plan, copy of the letter of allotment, beacon
certificate and a copy of the Deed Plan for checking, signing and sealing.
 • Once the allottee paid the charges specified in the letter of allotment to the
Commissioner of Lands, the Commissioner of Lands, upon being satisfied with the
contents of the Part Development Plan, the Survey Plan and the Deed Plan,would
prepare and sign a Grant in favour of the allottee signifying his/her leasehold
interest in the land.
• The Commissioner would then forward the Grant to the Registrar of Titles duly
signed and stamped, for registration.
• Under the Constitution of Kenya 2010, it is only the National Land Commission that
has the Constitutional mandate to manage, alienate and allocate public land. All
unalienated Government land, after the promulgation of the Constitution in August
2010, is classified as Public land and ought to vest and be held by the County
Government in trust for the people resident in the county and administered on
their behalf by the National Land Commission. 264
As previously stated, section 5(2)(a) of the National Land Commission Act mandates
the National Land Commission to, “on behalf of, and with the consent of the
national and county governments, alienate public land.” The National Land
Commission is therefore required to seek consent of the “National Government” or
“County Government” in alienating public land. when articles 62(2), 62(3) and
67(2) (a) of the Constitution of Kenya and section 5(2)(b) of the National Land
Commission Act provide that the National Land Commission manages or administers
public land “on behalf of” the national and county governments, the phrase “on
behalf of” does not envisage an agency relationship in which the national
government and county governments can withdraw the authority of the National Land
Commission to administer the public land. The mandate of the National Land
Commission under articles 62(2), 62(3) and 67(2)(a) of the Constitution of Kenya
is a constitutional mandate that is neither donated to the Commission by national
government or by a county government, thus incapable of withdrawal by either
levels of government.
The new legislative framework on land also confers on the National Land Commission
certain functions related to the management and administration of land. Firstly,
the National Land Commission is mandated to either undertake or oversight
“Physical Planning”; “Survey and Mapping”; and preparation of “National Spatial
Data Infrastructure” functions. Article 67(2)(h) of the Constitution of Kenya
mandates the National Land Commission to “monitor and have oversight
responsibilities over land use planning throughout the country”; section 8(a) of
the Land Act mandates the National Land Commission to identify, prepare and keep
a database of all public land; section 17(3) of the Land Act mandates the National
Land Commission to approve plans for the development, management and use of
reserved public land vested in a management body, but in compliance with relevant
law on development control; section 11(2) of the Land Act mandates the National
Land Commission to identify and demarcate ecologically sensitive areas that are
within public lands and prevent environmental degradation and climate change, in
consultation with existing institutions on conservation; and section 17(3) of
the Land Registration Act mandates the National Land Commission to be a depository
for cadastral maps deposited by the authority responsible for survey of land.
Secondly, it is the mandate of the National Land Commission to maintain land
information system. Section 5(2)(d) of the National Land Commission Act mandates
the Commission to develop and maintain an effective land information and
management system at national and county levels.
Valuation of land and assessment of compensation payable over land compulsorily
acquired, or private land sold to the Government, both at the national and at
county levels are spearheaded by the National Land Commission. Article 67(2)(g)
of the Constitution of Kenya mandates the National Land Commission “to assess

264 See Hassan HashiShirwa and another v Swaleh Mohamed and others, Malindi ELCC number 41B of 2012,
paragraphs 69-72; 89; 102-103; and 105-106.
tax on land and premiums on immovable property in any area designated by law.”
Section 107(1) of the Land Act mandates the National Land Commission to receive
requests from national or county government to compulsorily acquire land on their
behalf in public interest or public use. In so doing, sections 112 and 113 of
the Land Act mandate the National Land Commission to manage the process of
compulsory acquisition on behalf of national or county government and to award
compensation to every person whom the National Land Commission determines at
inquiry to have an interest in the land.
Lastly, the mandate to undertake “Settlement Matters”; “Rural Settlement
planning”; “Land Adjudication”; and “Land Reclamation” now vests with the
National Land Commission. Section 134 of the Land Act mandates the National Land
Commission to implement settlement programmes on behalf of the national and
county governments; to assist the national and county governments in the
administration of settlement programmes; to reserve public land or purchase
private land, in accordance with public procurement law, where public land is
not available, for the establishment of approved settlement programmes; and to
determine the sum of money to be paid by settlement beneficiaries. Section 134
of the Land Act mandates the National Land Commission to administer Land
Settlement Fund; and to establish settlement programmes in consultation with
departments responsible for land, finance, agriculture, environment and natural
resources, special programmes, and with the relevant county government.

2.3.3 Land Taxation, Collection of Land Rent, Royalties and other Payments
over Land
Article 67(2)(g) of the Constitution of Kenya mandates the National Land
Commission to “assess tax on land and premiums on immovable property in any area
designated by law”. Under the provisions of section 28 of the Land Act:
(1) The rent, royalties and payments reserved under any lease or license shall be a
debt owed to the Commission and shall be paid by the lessee or licensee at the
office of the Commission or at such other place as the Commission may prescribe;
(2) The annual rent reserved under any lease or license shall be payable in
advance on the first day of January in each year of the term;
(3) The payments made under sub-section (2) shall be accounted for to the
respective governments.
Therefore, it is the mandate of the National Land Commission to receive any rent
(annual ground rent and stand premium), royalties and payments reserved under
any lease or license and to account to either the National Government or the
County Government, whichever level of government is relevant in respect of the
subject land. Previously, land tax function was the mandate of the Ministry of
Lands.

2.3.4 Control of dealings in Private Land

The mandate of the National Land Commission in the administration and management
of land is not limited to public land. The new legislative framework on land
confers upon the Commission certain functions that have a bearing on private
land. It will be remembered that Parliament is constitutionally mandated under
article 67(3) of the Constitution to legislate on any other function of the
National Land Commission, other than those specified in article 67(2) of the
Constitution. All land, including private land, must be valued and stamp duty
payable in respect of the land assessed and paid before interest in land can be
registered at the land registry. It is the constitutional mandate of the National
Land Commission under article 67(2)(g) of the Constitution to “assess tax on land
and premiums on immovable property in any area designated by law”. Stamp duty
payable, including in respect of private land, is a category of tax on land,
which, by the Constitution, is the mandate of the National Land Commission to
assess.
Secondly, once interests in all land is registered, including in private land
as leasehold interest or lease, the lessee or licensee is under duty to pay land
rent or any stand premium or payment reserved under the lease or license to
either the National Government or County Government. Section 28 of the Land Act
mandates the National Land Commission as follows:
“(1) The rent, royalties and payments reserved under any lease or license shall
be a debt owed to the Commission and shall be paid by the lessee or licensee at
the office of the Commission or at such other place as the Commission may
prescribe;
(2) The annual rent reserved under any lease or license shall be payable in
advance on the first day of January in each year of the term;
(3) The payments made under sub-section (2) shall be accounted for to the
respective governments.”
Third, dealings in private land are by law controlled by the National Land
Commission. Section 55(b) of the Land Registration Act, enjoins a lessor to
first obtain a land rent clearance certificate and the consent to the lease from
the National Land Commission before dealing with the land. Section 56(4)of the
Land Registration Act prohibits registration of a charge, including over private
land, unless the chargor first obtains from the National Land Commission, a land
rent clearance certificate and the consent to charge, certifying that no rent is
owing to the applicant in respect of the land, or that the land is freehold.
Section 5(2)(b) of the National Land Commission Act mandates the National Land
Commission to “monitor the registration of all rights and interests in land”.
This mandate no doubt includes monitoring the registration of rights and interests
in private land.
Fourth, section 6 of the Land Registration Act mandates the National Land
Commission to, by way of Gazette, constitute land registration units at county
levels and any other levels to ensure reasonable access to land registration and
administration services; to divide the registration units into registration
sections; to divide registration sections into registration blocks and to
designate distinctive numbers or letters or a combination of letters and numbers
to refer to a specific registration block or section. Further, sections 7(1)(a)
and 7(1)(b) of the Land Registration Act mandate the National Land Commission to
determine the form of land register to be maintained in each registration unit
and to determine the date when land plans are to be geo-referenced. Indeed, it
is in recognition that the applicant is the body mandated to administer all land
registries and the process of registration of title to all land in Kenya that
section 33(1)(c) of the National Land Commission Act enjoins the National Land
Commission, as part of the Commission’s annual report prescribed in article 254
of the Constitution of Kenya to the President of the Republic of Kenya and to
Parliament, to report on “information relating to the progress made in the
registration of title in land”.

2.3.5 Land Settlement Programmes and Fund

Section 134 of the Land Act mandates the National Land Commission to, on behalf
of national or County Government, implement and administer settlement programmes
to provide, inter alia, squatters and displaced persons, access to land for
shelter and livelihood. The section states as follows:
(1) The Commission shall, on behalf of the national and county governments, implement
settlement programmes to provide access to land for shelter and livelihood.
 (2) Settlement programmes shall, for the purposes of this Act, include, but not be
limited to provision of access to land to squatters, persons displaced by natural
causes, development projects, conservation, internal conflicts or other such causes
that may lead to movement and displacement.
(3) The Commission shall assist the national and county governments in the
administration of settlement programmes.
(4) Identification of beneficiaries shall be carried out and verified by a sub-county
selection committee comprising of the following-
(a) sub-county administrator who shall be the chairperson;
(b) a representative of the county government, approved by the county assembly;
(c) a representative of the Commission;
(d) a national government representative;
(e) a representative of persons with special needs;
(f) a women’s representative nominated by a local women’s organization prescribed
by the county government; and
(g) a youth representative prescribed by the county government.
(5) The Commission shall reserve public land for the establishment of approved
settlement programmes, and where public land is not available purchase private
land subject to the Public Procurement and Disposal Act, 2005 (number 3 of 2005)
or any other law.
(6) Upon planning and survey, land in settlement schemes shall be allocated to
households in accordance with national values and principles of governance provided
in article 10 and the principles of land policy provided in article 60(1) of the
Constitution and any other requirements of natural justice.
(7) Any land acquired in a settlement scheme established under this Act, or any other
law, shall not be transferable except through a process of succession.
(8) Beneficiaries of land in settlement schemes shall pay a sum of money as may be
determined from time to time by the Commission and the body of trustees responsible
for settlement matters.
(9) The funds provided by the national government and county governments for the
purposes of the settlement programmes shall be administered in accordance with the
law be relating to public finance management.
The procedure for the management of settlement programmes, previously undertaken
by the Ministry of Lands, and currently by the National Land Commission, was ably
explained by the Justice Angote in the case of Stephen Wambua Kithuka (Suing on
behalf of Getrud Bint Ali & Crispus Singo) v Abdul Karim Omar, as follows:
• The Department of Land Adjudication and Settlement which was previously in the
Ministry of Lands is comprised of two divisions, namely, the Land Adjudication
Division and the Settlement Division.
• The Land Adjudication Division deals with the ascertainment of land rights and
interests of individuals on customary/trust lands pursuant to the provisions
of the Land Adjudication Act and the administration of Group Ranches. The
Division applies strictly the provisions of the Land Adjudication Act in the
ascertainment of the said land rights.
• The Settlement Division, on the other hand, settles the landless poor and also
regularizes the ownership of land occupied by squatters on unalienated
Government land. The said Division, through the Settlement Fund Trustees could
also purchase private land and settle people.
• The Settlement Programmes were implemented under the Agriculture Act under
sections 167 and 168, Chapter 318. These programmes started in 1961 under the
 Land Development and Settlement Board to settle indigenous people on land bought
from former European landowners. Later, the programme evolved and was mandated
to settle poor landless Kenyans. The Settlement Programme was undertaken
through the Settlement Fund Trustees on behalf of the Government.
• The National Land Commission has now been given the mandate to manage and
administer Settlement Programmes by dint of sections 134 and 135 of the Land
Act, 2012.
• Although the process of demarcation, surveying and identification of squatters
for the purpose of allocating them land is the same as the process of
ascertainment of rights over Trust Land, the Land Adjudication Act is not
applicable when it comes to the ascertainment of the “claims “of the squatters
on Government land.
• When land is declared an adjudication area or a settlement scheme, enlarged and
un-rectified photographs are usually supplied by Survey of Kenya to the Land
Adjudication and Settlement Department for use in the demarcation process.
Those are the maps that the demarcation officers use for either ascertaining
the rights of the residents of an area over Trust land or ascertaining the
claims of squatters over Government land.
• Upon receipt of the said maps, the demarcation officers then determine the
ground position of the boundaries, photo-identify them and plot them on the
enlarged photographs.
• It is only after the Chief Land Registrar confirms the completeness of the
Registered Index Map that he forwards it to the District Land Registrar for
issuance of individual titles. This explains why it was not uncommon for the
general boundaries to be created and shown in the Registered Index Maps for an
area and then title documents issued many years later.
• Unlike the general boundaries which are recognised under the repealed Registered
Land (Repealed) Act, a fixed boundary survey is a survey of land with accurate
linear and angular measurements to aid the registration of a title.
• Upon the completion of the survey, the rights of the residents of the area
could be ascertained if the land was Trust land. If the land was Government
land, then the people residing on the land would be considered as squatters and
the same map would be used to ascertain their claims. The later scenario is
what happened in this particular case. 265
Justice Angote in the case of Mohamed Ahmed Khalid (Chairman) and others v
Director of Land Adjudication and others affirmed that it is the mandate of the
National Land Commission, not the Ministry of Lands, to manage and implement
settlement programmes. The Judge opined as follows:
The creation of settlement schemes was, and still is, meant to settle the landless
people and to regularize situations where people have been staying on either government
land or private land without the requisite legal documents. The ascertainment of the
rights of squatters over land which has been declared to be a settlement scheme should
not be confused with the ascertainment of land rights and interests of individuals on
customary and land trusts. The law that was applicable for the ascertainment of land
rights and interest over Trust land is the Land Adjudication Act, Chapter 284. The
said Act has an elaborate mechanism of appeal in the event an individual is aggrieved
by the decisions of the Land Adjudication and Settlement Officer, the Land Adjudication
Committee, the Land Arbitration Board and the Minister (now Cabinet Secretary)’s Appeal
Committee. However, with the promulgation of the Constitution in 2010 and the
establishment of the National Land Commission vide the constitutional provisions, the
National Land Act, 2012 and the Land Act, 2012, all the functions of the Land

265 See the case of Stephen Wambua Kithuka (Suing on behalf of Getrud Bint Ali & Crispus Singo) v Abdul
Karim Omar, Malindi ELCC number 92 of 2011, at paragraphs 7-23 of the judgment.
 Adjudication and Settlement department which was within the Ministry of Lands have
been transferred to the National Land Commission. The Management and implementation
of settlement programmes have also been transferred from the Ministry of Lands to the
National Land Commission. The law which previously governed the setting up of
settlement schemes was the Agriculture Act, Chapter 318. Under section 168(3) of the
said Act, the Director of Land Adjudication and Settlement was appointed as the
administrator of Agricultural Settlement Fund by the Settlement Fund Trustees. The
Director of Land Adjudication and Settlement therefore wore two hats; he was in charge
of the adjudication and consolidation of land rights and interests for Trust land
pursuant to the provisions of the Land Adjudication Act and was also authorised to
establish settlement schemes pursuant to the provisions of the Agriculture Act. The
Director of Land Adjudication and Settlement was the head of the land adjudication
and settlement. He is the one who oversaw (before the creation of the National Land
Commission in the year 2012) the effective implementation of the land adjudication
and settlement before the promulgation of the Constitution in August 2010. Pursuant
to the provisions of section 29(3) of the Land Adjudication Act, Chapter 284, the
Director is mandated to sign certificates of finality upon the completion of the
adjudication process and forward the adjudication register to the Chief Land Registrar
for registration. Indeed, before the Director signs certificates of finality, the Land
Adjudication Act provides that the adjudication register must be published which shall
be followed with the hearing, determination and implementation of objections in respect
to the adjudication register. The manner in which such publication should be done is
provided for at section 31 of the Act. The Act, at sections 6 and 9 mandates the Land
Adjudication Committee to determine claims in land in accordance with African Customary
Law. The Land Arbitration Board hears appeals from the Land Adjudication Committee… 266

2.3.6 Transition
Section 32(1) of the National Land Commission Act provides that “all property,
assets, rights, liabilities, obligations, agreements and other arrangements
existing at the commencement of this Act and vested in, acquired, incurred or
entered into by or on behalf of the Ministry of Lands with respect to the
departments whose functions have been transferred to the Commission, shall upon
the commencement of this Act, be deemed to have vested in or to have been
acquired, incurred or entered into by or on behalf of the Commission to the same
extent as they were enforceable by or against such departments before the
commencement of this Act.”
Under the provisions of section 31(2) the National Land Commission Act:
“every person who, immediately before the commencement of this Act, was an employee
of the Government in the Ministry of Lands in any of the departments whose functions
have been transferred to the Commission shall, upon the commencement of this Act, be
employed or appointed as a member of staff of the Commission”
In interpreting the provisions of section 32(1) of the National Land Commission
Act, Justice Gacheru was emphatic in the case of Pius Ngugi and others v Hellen
Fear and others that all property, assets, rights, liabilities, obligations,
agreements and other arrangements previously performed by the Commissioner of
Lands on behalf of the Ministry of Lands with respect to the departments whose
functions have been transferred to the National Land Commission from the Ministry
of Lands have by operation of law transited to the Commission. The judge held
as follows in this regard:
The third defendant herein is the Commissioner of Lands who carried out functions on
behalf of the Ministry of Lands. Whatever functions he carried out are now deemed to
have been carried under NLC Act. The National Land Commission therefore takes over
the functions of the third defendant by operation of law and court finds it not

266 Mohamed Ahmed Khalid (Chairman) and others v Director of Land Adjudication and others, Malindi ELCC
number 3 of 2013.
 necessary for the applicant herein to make the request as he has already done through
the instant application. Further, section 32(1) of the National Land Commission Act
provides that “All property, assets, rights, liabilities. Obligations agreements and
other arrangements existing at the commencement of this Act and vested in acquired,
incurred or entered into by on or behalf of the Ministry of Lands with respect to the
departments whose functions have been transferred to the Commission, shall upon the
commencement of this Act be deemed to have vested in or to have been acquired, incurred
or entered into by or on behalf of the Commission to the same extent as they were
enforceable by or against such Department before the commencement of the Act.” It is
evident that the third defendant herein is the Commission(er) of Lands. A civil
proceeding creates rights, liabilities or obligations depending on the outcome of such
proceeding. From the reading of section 32 of the National Land Commission Act, it
is evident that such rights, liabilities and obligations that were held by the third
defendant shall automatically be transferred to the Commission: Such transfer is by
operation of the law and there is no need for the litigant to request for it.267

2.4 ENVIRONMENT AND LAND COURT ACT268

The Act establishes the Environment and Land Court as a superior court of
record,269 composed of a Principal Judge and such number of judges requisite to
enable the Court discharge its mandate.270 Judges of the Court appoint a Principal
Judge from among themselves who serves as the administrative head of the Court.271
The Act empowers the Judicial Service Commission to appoint a Registrar,272 with
the duty to establish and maintain the Court Registry, facilitating enforcement
of the Court decisions, certifying Court decisions and keeping records of the
Court proceedings.273 Most importantly, the Court has jurisdiction to hear a
question as to whether a right to a clean and healthy environment under article
42 of the Constitution and whether the fundamental freedom to environment and
land in articles 69 and 70 of the Constitution has been or is being denied,
violated, infringed or threatened.274
Other jurisdiction of the Court under the Act include appellate and supervisory
powers over land and environmental tribunals and subordinate courts; original
jurisdiction over environmental planning and protection, trade, climate issues,
land use planning, title, tenure, boundaries, rates, rents, valuations, mining,
minerals and other natural resources; original jurisdiction over compulsory
acquisition of land; disputes relating to land administration and management;
and any other dispute relating to environment and land.275

2.5 NATIONAL LAND POLICY-SESSIONAL PAPER NUMBER 3 OF 2009

267 Pius Ngugi and others v Hellen Fear and others, Nairobi ELCC number 1321 of 2005 (as consolidated with
ELCC number 424 of 2011 and ELCC number 437 of 2011)

268 Number 19 of 2011.

269 Ibid, section 4.

270 Ibid, section 5.

271 Ibid, section 6(1).

272 Ibid, section 9(1).

273 Ibid, section 11.

274 Ibid, section 13.

275 Ibid.
2.5.1 Origin and Purpose
The National Land Policy (henceforth referred to as “the Policy”) was formulated
against the backdrop that lack of access to land is a major determinant of poverty
as more than 80% of the Kenyan population depends on agriculture for their
livelihoods.276 To ensure that land problems and resulting inequality become a
thing of the past, the government engaged in a consultative process that brought
together stakeholders drawn from the public, private and civil society with the
sole mandate and aim of coming up with a policy that would guarantee efficiency,
sustainability and equity as regards the handling and dealings in public land.
Deliberate and well intentioned initiatives of the government such as the
Presidential Commission of Inquiry into the Land Law System of Kenya, the
Constitution of Kenya Review Commission and the Presidential Commission of
Inquiry into the Illegal/Irregular Allocation of Public Land did inspire the
whole process.
Owing to public pressure for suitable answers to the land question, the
government gazetted a Commission of Inquiry to look into the land law system of
Kenya. This Commission, popularly referred to as the “Njonjo Commission”,
collected oral and written submissions from Kenyans on a wide variety of issues.
The Commission’s Report published in November 2002 recommended the restructuring
of land administration and management in Kenya. The Commission proposed that the
restructuring be centered on the principles of a land policy framework, the
constitutional position of land and a new institutional framework for land
administration. Though the Njonjo Report was never systematically implemented,
these recommendations were to later greatly inform the formulation of the
Policy.277
The menace and vice of illegal allocation of public land greatly inspired the
formation of the Ndung’u Land Commission. The Ndung’u Commission was charged with
inquiring into the unlawful allocation of public lands, ascertaining the
beneficiaries, identifying public officials involved in illegal allocations, and
making recommendations for appropriate measures for the restoration of illegally
allocated lands to their proper purpose, for prevention of future illegal
allocations and for appropriate criminal prosecutions.278 Besides developing an
inventory with the details of over 200,000 parcels of land allegedly illegally
or irregularly allocated from public land, the Report recommended among other
things that, there be established a National Land Commission to deal with all
land matters in the country, including the allocation of public land and
supervising the allocation and management of trust land. Although most of the
Report’s recommendations have not been implemented, some have informed the
contents of the National Land Policy.279
The drafting of a comprehensive National Land Policy had been in the making
for several years and it was finally adopted by Parliament in December 2009.
Until then, land policy in Kenya was not explicitly articulated in any policy
document. However, the legal framework for land had been clear and consistent:

276 See Land grabbing in Kenya and Mozambique (A report on two research missions and a human rights analysis
of land grabbing) available at www.http://www.fian.at/assets/StudieLandgrabbinginKeniaMozambiqueFIAN2010.pdf

277 See World Bank Report (available at http://siteresources.worldbank.org/EXTARD/Resources/336681-

1236436879081/5893311-1271205116054/mwathanePaper.pdf.

278 Roger Southall, The Ndung’u Report: Land & Graft in Kenya.Published in: Review of African Political
Economy, 103, March 2005, pp.142-51.

279 It is important to note that these two reports were available in good time to inform the national land
policy formulation process which commenced in February 2004 and protracted for close to six years. See world
bank report (available at http://siteresources.worldbank.org/EXTARD/Resources/336681-1236436879081/5893311-
1271205116054/mwathanePaper.pdf
that only private ownership of land guaranteed economic growth. 280 As a result,
customary tenure had been neglected and treated as an inferior tenure system.281
Accordingly, the thrust of laws previous to the Policy was to individualize all
modes of tenure, especially customary tenure.
The major object of the Policy as espoused in clause 1.4 is to secure rights
over land and provide for sustainable growth, investment and the reduction of
poverty in line with the government’s overall development objectives. The policy
is specifically 0designed to offer a framework of policies and laws that are
geared towards ensuring and guaranteeing the maintenance of a system of land
administration and management that will ensure: everyone is accorded an
opportunity to access and use the land in a beneficial fashion; land is used
economically, socially and equitably; and also in a manner that is environmentally
sustainable.282
The Policy is a culmination of the deliberate efforts such as Recommendations
Report produced by the Thematic Groups comprising of state and non-state actors;
regional workshops organized in the eight provinces of Kenya to collect views
from stakeholders; reports documenting past initiatives on land policy reform;
and written submissions from individuals, groups and organizations.283

2.5.2 ANALYSIS OF NATIONAL LAND POLICY

The Policy is structured and engineered to provide a comprehensive and well
encompassing legal and moral framework. It also defines modalities of addressing
salient and critical issues regarding the controversy behind land administration,
access, use planning, restitution of historical injustices of degradation of the
environment, land conflicts, sprawling and mushrooming of informal urban
settlements, outdated and anachronistic legal and institutional frameworks as
well as information management. Further, it addresses constitutional issues, such
as compulsory acquisition and development control as well as tenure. It further
recognizes the need for security of tenure for all Kenyans. The objectives of
the National Land Policy are well encapsulated in its executive summary which
reads, in part, as follows:
This land policy has thus been formulated to address the critical issues of land
administration, access to land, land use planning, restitution of historical
injustices, environmental degradation, conflicts, unplanned proliferation of informal
urban settlements, outdated legal framework, institutional framework and information
management. It also addresses constitutional issues, such as the eminent domain and
the police power as well as tenure. It recognizes the need for security of tenure for
all Kenyans (all socio-economic groups, women, pastoral communities, informal
settlement residents and other marginalized groups).
The values governing land administration in Kenya are adumbrated in clause 8 of
the Policy where it is provided that land administration in Kenya ‘‘shall
henceforth be participatory; interactive; inclusive; consensus-based; timely and
professional; transparent; gender sensitive; innovative; and cost-effective.”284
2.5.2.1 Land Tenure Issues

280 John Bruce, Kenya Land Policy: Analysis and Recommendations, April 2008, page 3.

281 National Land Policy, Ministry of Lands, Nairobi, May 2007, pp.15-16.

282 See clause 1.4 of the Policy.

283 See clause 9 of the sessional paper.

284 See clause 8 of the sessional paper.

The Policy defines land tenure as the terms and conditions under which rights to
land and land-based resources are acquired, retained and disposed of or
transmitted.285 The Policy recognises that overlapping land rights and insecure
tenure inhibit proper land management and lead to conflicts. The land tenure
regimes recognised in Kenya will be public tenure, private tenure and communal
tenure and all land in Kenya will be designated in either category.286 Tenure
policy will be guided by the principles of access to land, equity in transmission,
distribution of land rights, and will recognise gender equity, HIV and AIDS and
poverty.287
The Policy describes public land as all land owned by the Government and
dedicated to a specified public use or made available for private uses at the
discretion of the Government.288 In order to secure tenure to public land, an
inventory will be established for public land and the allocation and distribution
of public land will be entrusted to a National Land Commission. Public land
acquired illegally will be recovered and a land legislation establishing a Land
Title Tribunal will be enacted to determine ‘bona fide’ ownership of land that
was previously public or Trust Land. This would involve a re-examination of many
grants to both influential and ordinary individuals. In order to eliminate
incidences of misallocation or multiple allocations, the government will continue
to enforce existing legal provisions relating to the allocation of public land
and establish a succinct legislative framework and procedures for future
allocation of public land.289
For community land,290 the Policy reasserts the viability of customary land
rights and attempts to create a permanent niche for them within the legal
landscape; customary land rights will not be insubordinated to individual tenure.
The Policy acknowledges that over time, community land rights have been undermined
by registration regimes on land. Individualization of land rights undermined
traditional resource management. Customary land rights were condemned as not
capable of crystallizing into ownership of land.291 Community land will be vested
in the respective community. Moreover, the use of community representatives to
manage customary land will be replaced by a more competent, accountable and
transparent authority in view of the past abuses of trusts in the context of both
the Trust Land Act and the Land (Group Representatives) Act.292 County councils
will no longer have a blanket power in disposing of trust land; group
representatives will no longer dispose of pastoralists land without consulting
landowners. In a bid to secure community tenure, the government will document
and map existing forms of communal tenure, whether customary or non-customary,
and provide for its recognition and protection as well as restitution of illegally
acquired parts of trust land to the affected communities. In addition, the
government will establish a clear legislative framework and procedures for
recognition, protection and registration of customary rights to land and
landbased resources. In instances where community land was acquired illegally,

285 National Land Policy, paragraph 59.

286 Ibid, paragraph 63.

287 Ibid, paragraphs 61,62.

288 Ibid, paragraph 64.

289 Ibid.

290 Community land refers to land lawfully held, managed and used by a specific community.

291 Infra, paragraph 66.

292 Ibid, paragraph 67.

the government will offer restitution to the affected communities. The government
is further enjoined to bring to completion ongoing processes of adjudication and
consolidation and to ensure that adjudication and consolidation processes adhere
to the Policy.
The Policy appreciates the centrality of customary land rights as a mechanism
“to preserve the asset base for current and future generations” as communities
traditionally see land and kinship “in a genealogical map” through which access
to land is attained. Radical title in community land will vest in the respective
community.293 Families and individuals will be allocated rights to use community
land in perpetuity, subject only to effective utilization.
Minority groups culturally dependent on specific geographical habitats, who
have lost land due to gazzetement of the habitats as forests, national reserves
or due to excision and allocation of the habitats to individuals will be specially
protected by the Government. The Government will undertake an inventory of the
existing minority communities in a bid to assess their status and land rights,
and facilitate their land tenure and resource management systems by providing a
suitable legal framework.294
The Policy defines private land as land held by an individual or other entity
under freehold or leasehold tenure, and proposes far-reaching policy changes in
relation thereto. The Policy stresses that it will not be possible for every
person to own land, the goal of the Policy being to facilitate secure access to
land, and not to necessarily grant individual freehold rights to land to every
person. The Government is therefore enjoined to facilitate access to land for
many citizens through other means, such as leasehold mechanisms. The principle
of absolute sanctity of first registration will be repealed under a statute,
Registered Land (Repealed) Act and every primary right holder will be required
to obtain ‘written and informed consent of all secondary right holders before
disposing of the land.’ Currently, section 143(1) of the Registered Land
(Repealed) Act empowers a court to rectify the register in cases where the Court
is convinced that a fraud or mistake has taken place, but specifically excludes
first registration from this provision. As noted in the Ndung’u Report, the
provision has often been misused to protect fruits of fraud.295
Whereas there is no prescribed minimum duration under which land is held, the
Policy recommends a maximum lease term of 99 years.296 Leasehold is a right to
use land for a fixed period in return for a consideration, which usually takes
the form of rent, though an upfront payment can also be involved. The preexisting
999 leases originated in the colonial period. The Policy recommends establishment
of an appropriate mechanism for surrender of interests currently held beyond 99
years in exchange for the proposed 99 year leases.
Legal categories of freehold tenure and absolute proprietorship will be merged.
Freehold involves an underlying title in the Crown (Government) from which tenure
is derived and in respect of which the obligation to pay tax to the Crown does
not apply; the land is held for free. Absolute proprietorship avoids the feudal
terminology by creating a tenure in which the radical title vests in the owner,
not the Crown. All absolute ownerships will be converted to freehold under the
Policy. In principle, there is minimum difference between the two tenures.

2.5.2.2 Access to land

293 National land Policy, paragraph 65.

294 Ibid, paragraphs 69-71.

295 Ndung’u Report, Appendix 10.

296 Ibid, paragraph 77.

The Policy has far-reaching provisions regulating access to land by various
categories of people. Whereas currently any person is at liberty to apply to be
allocated land for any permissible use within the urban areas, the Policy
regulates access and use of land by non-citizens. According to the Policy, non-
citizens will hold land on leasehold only and for a period not exceeding 99
years.297 In regards to the user, non-citizens will only acquire land for
investment purposes.298
With regard to the relationship between gender and access to and use of land,
the Policy appreciates that culture and traditions have supported male
inheritance of family land and a lacklustre formulation of gender sensitive
family laws, a situation that was not in consonance with international provisions
on gender equality.299 A complex mix of cultural, legal, and social factors
underlies women’s property rights violations. Kenya’s customary laws—largely
unwritten but influential local norms that coexist with formal laws are based on
patriarchal traditions in which men inherited and largely controlled land while
other property, and women were “protected” but had lesser property rights. Kenya’s
legal system formally recognizes customary laws.300 Several court decisions have
demonstrated the institutionalised patriarchy in land access and use. In the case
of Beatrice Wanjiru Kimani v Evanson Kimani Njoroge,301 the concept of property
ownership by women was construed by Court as alien, as having been propounded by
women after going to Beijing as an element of activism.302 In Joyce Wanjiku Kaguara
v George Mburu and another,303 the plaintiff, the deceased’s daughter applied to
the High Court for an order that the defendants, her brothers, execute an award
of the Karuri Land Disputes Tribunal relating to two acres of the deceased
estates, as compared to 3.5 acres awarded by the Tribunal to the male dependants.
The High Court in restating Eugene Cotran’s Restatement of African Law304 averred
thus:
Inheritance under Kikuyu Law is patrilineal. The pattern of inheritance is based on
the equal distribution of a man’s property among his sons, subject to the proviso that
the eldest son may get a slightly larger share. Daughters are normally excluded, but
may also receive a share if they remain unmarried. In the absence of sons, the heirs
are the nearest patrilineal relatives of the deceased, namely father, full brother,
half-brothers and paternal uncles.305

297 Ibid, paragraph 99.

298
Ibid, 98.

299 Ibid, paragraph 100.

300 Judicature Act (Chapter 8) Laws of Kenya, section 3(2) states: “(2) The High Court, the Court of Appeal
and all subordinate courts shall be guided by African customary law in civil cases in which one or more of the
parties is subject to it or affected by it, so far as it is applicable and is not repugnant to justice and
morality or inconsistent with any written law, and shall decide all such cases according to substantial justice
without undue regard to technicalities of procedure and without undue delay.”

301 Beatrice Wanjiru Kimani v Evanson Kimani Njoroge, High Court civil case number 1610 of 1999.

302 According to the Judge: “Many a married woman goes out to work. She has a profession. She has a high
career. She is in big business. She travels to Beijing in search of ideologies and a basis for rebellion
against her own culture. Like anyone else, she owns her own property separately, jointly or in common with
anyone. Her business interest, her property and whatever is hers is everywhere in Kenya and abroad, in the
rural, urban and outlying districts. In Nairobi alone her property and businesses, swell through Lavington,
Muthaiga, Kileleshwa, Kenyatta Avenue, swirls in Eastlands, with confluents from everywhere. Perhaps apart
from procreation and occasional cooking, a number of important wifely duties, obligations and responsibilities
are increasingly being placed on the shoulders of the servants, machines, kindergartens and other paid minders.
Often the husband pays for all these and more…”

303 Joyce Wanjiku Kaguara v George Mburu and another [2005] eKLR.

304 Cotran E., Restatement of African Law, Vol. 2, page 8.

305 See also Wambugu v Kimani [1992] 2 KLR 292.

The High Court, in institutionalising the obvious discrimination against women,
upheld the decision of the Tribunal. The situation is similar among other tribes
in Kenya. For instance, in Phillicery Nduku Mumo v Nzuki Makau, it was held by
the Court of Appeal that Kamba Customary Law does not recognise the rights of
married daughters to inherit from their parent’s estate.306 The Court stated:
The learned Judge and rightly so in our view, held that under Kamba customary law,
the appellant would only have been entitled to inherit some land from her deceased
father if she was unmarried. This is so because like the majority of Kenyan tribes,
inheritance under Kamba customary law is patrilineal. Both the appellant and the
respondent being Kamba Africans, the court took judicial notice of their customary
law as applicable and being guided by section 3(2) of the Judicature Act (Chapter 8)…
In recognition of the foregoing realities, the Policy advocates for:
(a) Adequate women representation in institutions dealing in land to guarantee
consultation of women, as well, before disposal of land. This also will enable
women participation in financial resources in the land market.307
(b) Non-discrimination of women in relation to land. The Government will repeal
existing laws and outlaw regulations, customs and practices that constitute women
discrimination in relation to land, and put in place appropriate legislation to
ensure effective protection of women’s rights to land and related resources;
(c) Laws on children inheritance will be reviewed, harmonized and consolidated to
protect and promote the right of orphans; and
(d) The Government is required to review succession, matrimonial property and other
related laws to ensure that they conform to the principle of equality between
women and men.308
Other than the land statutes discussed in the previous Chapter of this book, both
the Constitution and enforcing family specific Acts have been put in place to
ensure equitable access to land and land related resources. The Matrimonial
Property Act, in institutionalizing equality of parties in marriage at section
3, provides for equality for married women and men in terms of property ownership,
capacity to contract and the rights of action. Ownership of matrimonial property
shall vest upon the spouses in equal share regardless of the contribution of
either party.309 In case of liability arising from a property that was acquired
before marriage, then such liability vests on the party who acquired it unless
it becomes a matrimonial property, or the other parties agree otherwise.310
In case another party makes material contribution towards the improvement of
a matrimonial property, then that party shall have an interest in such property
even though the property was acquired before marriage.311 The Act further prohibits
alienation of matrimonial property during the subsistence of a marriage without
consent of the other party. There shall also be no eviction of a spouse during
the subsistence of marriage.312 All the foregoing provisions are in consonance

306 Phillicery Nduku Mumo v Nzuki Makau [2002] eKLR.

307 National Land Policy, paragraph 101.

308 Ibid, paragraph 106.

309 Matrimonial Property Act, 2013, section 8.

310 Section 9.

311 Section 10.

312 Section 12(2).

with article 45(3) of the Constitution313 which deems parties in a marriage to
be equal. Further, the Act allows either party to hold property in their names
as long as such property is not part of matrimonial property. The listed
provisions are in line with articles 40 and 60 of the Constitution which provides
that people have equal rights to own property.

2.5.2.3 Land Access by the Marginalized

The use of the phrase minority or marginalized groups draws various connotations
based on numerous variables. Some of these variables relate to the size of the
population of people, social status (sex, age, race ethnic group and family
background), level of education, employment status, wealth or political power.314
The phrase minority or marginalized group may be defined using any of the
variables and one group may be a minority in one respect and majority in the
other. Women may be a minority in their occupation of leadership positions or
social status but a majority in population size.315
The Constitution defines a marginalized group as a group of people who, because
of laws or practices before, on or after the effective date of the new
Constitution were or are disadvantaged by discrimination on one or more of the
grounds of race, sex, pregnancy, marital status, health status, ethnic or social
origin, colour, age, disability, religion, conscience, belief, culture, dress,
language or birth.316 Article 260 further defines a marginalized community as a
traditional community or an indigenous community which because of its relatively
small size, desire to preserve its identity or culture or maintained hunter and
gatherer lifestyle; and has been unable to fully participate in the integrated
social and economic life of Kenya as a whole. Pastoral persons and communities
are also included.
The Policy recognises that marginalized groups have suffered historical
injustice through dispossession of land resources by one group from another,
either by force, trickery, or lopsided and uninformed ‘‘voluntary exchange.’’
The Government is, therefore, enjoined to identify the marginalized groups and
put in place legislative framework that would ensure that the rights of the
marginalized groups to access land and use resources that are contiguous to them
in a sustainable manner are secured.317

2.5.2.4 Land Use Management Issues

The provisions of the Policy in this regard are intended to strengthen systems
of regulation of land use to ensure environmental, health and aesthetic benefits
to the public. The Policy emphasizes national and regional planning as a basis
for investment and sustainable resource use.318 It calls for “cluster settlements”
in rural areas to avoid sprawling of inefficient land use. The Policy specifies
sustainable production principles and productivity targets. The principle of land
sizes calls for the setting of economically viable minimum land sizes for various
zones and the control of subdivision to avoid parcels falling below the prescribed
sizes. This resolves the common problems of land fragmentation in Kenya.

313 Equality for parties in a marriage.

314 Wirth, L: “The Problem of Minority Groups.”, page 347 in Ralph Linton (ed.), (1945) The Science of Man
in the World Crisis. New York: Columbia University Press.

315 Kenya National Bureau of Statistics, (2010) Kenya 2009 population and Housing Census Highlights, Kenya
National Bureau of Statistics.

316 Articles 27(4) and 260 of the Constitution.

317 National Land Policy, paragraph 105.

318 Ibid, paragraph 113.

 Regarding conservation and sustainable management of land-based natural
resources, the Policy mandates a number of positive and specific approaches.
These include: preparation of participatory community action programs by
communities living near environmentally sensitive areas; and involvement of local
communities in the co-management of wildlife sanctuaries and conservancies.319
The Policy outlines ecosystem protection and management principles, urban
environment management principles, use of environmental assessment and audits as
land management tools, and emphasizes the “Polluter-Pays” principle as an
environmental conservation strategy.320 The Policy further deals with sector and
cross-sector land use, calling for effective coordination among sector
institutions.321

2.5.2.5 Land Administration Issues

The Policy notes that due to ineffective land registration system in Kenya, the
existing system of land rights delivery has not supplied adequate serviced land
at an affordable price, and the system has facilitated inequitable and unfair
distribution of limited land resources.322 It, therefore, calls for replacement
of existing land registration statutes and for the repeal of the Land Adjudication
Act and the Land Consolidation Act. According to the Policy, land delivery needs
to refocus on the poor and the landless. It emphasizes that a good land
administration system should provide land title guarantee and land tenure
security, support the process of land taxation and guide land transactions.323
Regarding the cadastre, that is, a parcel based and up-to-date land information
system containing a record of interests in land,324 the Policy proposes an
amendment to the Land Survey Act to allow the use of modern technologies such as
geographic information Systems (GPS) and Global Positioning System (GIS) and
the improvement of the specificity of general boundaries to the point that they
can be fitted into a digital system. It calls for a national Land Information
System, outlining the wealth of information. 325
Regarding the Land Market principles, the Policy recognises the lengthy
conveyancing processes in the land market, involving registration, taxation,
valuation, mortgages, and payment of stamp duties, land rents and rates.326 It,
therefore, calls for decentralization of land registries and encourages
development of short-term land rental markets.327
On land taxation, the Policy calls for specific and sufficiently critical
measures. These include the application of unimproved site value and improvement
value taxation policy in urban areas, the introduction of a development levy on
undeveloped land and the application of the capital gains tax to income from
sales of real estate. Existing taxes, including development and capital gains

319 Ibid, paragraph 134.

320 Ibid, paragraphs 125-143.

321 Ibid, paragraphs 144-145.

322 Ibid, paragraph 152.

323 Ibid, see clause 3.5, introductory paragraph.

324 Ibid, see paragraph 148.

325 Ibid, paragraph 150.

326 Land Market refers to the transfer, lease and mortgage of interests in land.

327 Ibid, paragraph 168(d).

tax, estate and probate tax, stamp duty would be continued, albeit with sufficient
improvements. A special revenue collection for unplanned settlement to be
referred to as House Tax or Area Tax shall be designed to tap into emerging
commercial property in slums and facilitate improvement efforts.328 The raft of
proposals, therefore, is geared towards “discouraging land speculation, enhancing
revenue collection and making serviced land more accessible.”329
On dispute resolution mechanism, the Policy calls for greater use of
alternative dispute resolution mechanism, devolved to local levels and backed by
law to ensure timely, efficient and affordable dispute resolution mechanisms.330
The Policy contemplated creation of a Division of the High Court to deal with
land issues.331 The provision has since been rendered rudderless with the
promulgation of the Constitution and establishment of the Land and Environment
Court to deal with issues relating to land and environment.

2.5.2.6 Eminent Domain/Exercise of State Power332

The Policy is a living document which comprises of an overall framework and set
of principles to guide sectoral, legislative and institutional reforms in land
administration and management. The Policy is not a static document as the same
shall be reviewed every ten years to take into account current and future needs
in view of social and economic dynamics in the land sector.333 Clause 41
advocates for the establishment of a National Land Commission (NLC) to carry out
efficient, equitable and sustainable land administration and management. The
exercise of the state power of compulsory acquisition and radical title have been
subjected to rationalized land use plans and agreed upon public needs established
through democratic processes. The radical title (ultimate ownership) shall be
vested in the people of Kenya collectively as a nation, as communities and as
individuals. Tenure rights shall be derived from that radical title under specific
laws.334
This means that the Crown is no longer the sole heir under the doctrine of
radical title but rather it belongs to the people of Kenya. Compulsory acquisition
is the power of the State to extinguish or acquire any title or other interest
in land for a public purpose, subject to prompt payment of compensation. Under
the current land regime, the established procedures for compulsory acquisition
are either abused or not adhered to leading to irregular acquisitions. In
addition, the powers of the President and local authorities to set apart Trust
Land overlap.
Clause 44 of the Policy advocates for the review of the law on compulsory
acquisition in order to align it with the new categories of land ownership. It
also seeks to among other objectives harmonize the institutional framework for
compulsory acquisition to avoid overlapping mandates as well as establishing
compulsory acquisition criteria, processes and procedures that are efficient,
transparent and accountable.

328 Ibid, paragraph 170.

329 Ibid, paragraph 169.

330 Ibid, paragraphs 172-174, 176.

331
Ibid, paragraphs 175.

332 See also using eminent domain powers to acquire private lands for protected area wildlife conservation:
a survey under kenyan law http://www.lead-journal.org/content/06084.pdf, Chapter Four, page 90.

333 Paragraph 10 of the Sessional Paper.

334 Ibid, paragraph 44.

 The Policy seeks to institute legal and administrative mechanisms for the
exercise of the power of compulsory acquisition by the State through the National
Land Commission. It seeks to confer pre-emptive rights on the original owners or
their successor in title where the public purpose or interest justifying the
compulsory acquisition fails or ceases.335
The Policy mandates the government to align the power of development control
with the new categories of land ownership empower all planning authorities in
the country to regulate the use of land taking into account the public interest;
harmonize the institutional framework for development control to facilitate
coordination; establish development control standards, processes and procedures
that are efficient, transparent and accountable taking into account international
instruments and national policies relating to the sustainable use of land and
the preservation of environmental values; ensure effective enforcement of
development control; provide safeguards to ensure that development control does
not amount to compulsory acquisition without compensation; ensure that the
exercise of development control takes into account local practices and community
values on land use and environmental management; and ensure effective public
participation in the exercise of development control.336 Simply defined,
development control is the power of the State to regulate property rights in
urban and rural land, and is derived from the responsibility of the state to
ensure that the use of land promotes the public interest.

2.5.2.7 Special Land Issues Featured

The Policy identifies special issues on land and interest groups inequitably
affected by land management system currently existing in Kenya, and proposes
mechanisms for redressing the issues and the concerns of the interest groups.
Some of the special land issues are discussed below.

2.5.2.7.1 Land Redistribution

The Policy appreciates that there are gross disparities in land ownership in
Kenya and calls for redistribution, restitution and resettlement. The Government
is mandated to develop a legal and institutional framework to enable the proposal.
Resettlement, as a mechanism for redressing skewed land distribution, though may
not be so much favourable owing to its past abuses by influential leaders to
perpetuate tribalism.

2.5.2.7.2 Resolution of Historical Injustices

According to the Policy, lack of access to land is a governance failure. The
Policy, therefore, calls on the government to establish mechanisms to resolve
historical land claims arising in 1895 or thereafter, and to establish a suitable
legal and administrative framework with mechanisms for restitution, reparation
and compensation for historical injustices and claims.337 While this is laudable,
the Policy has failed to prescribe in specific terms the criteria for redressing
the identified historical injustices. Use of wrong policy in redressing
historical injustices may perpetuate resentment and cause violence.

2.5.2.7.3 Land issues peculiar to the Coast Region

The Policy identifies the coastal region as an area with the largest single
concentration of landless indigenous people as a result of public land
mismanagement. The Policy, therefore, proposes various interventions including

335 See clause 47.

336 Clause 51.

337 Ibid, paragraph 191.

taking an inventory of all public land in the ten mile coastal strip and
converting the land to community land for the benefit of the people resident in
the area.338 Further, the 10-mile coastal strip will be vested in community
structures for persons ordinarily resident at the coast. Freehold interest along
beaches, islands and marine grounds will all be converted to 99-year leaseholds
upon the adoption of enabling legal framework.339

2.5.2.7.4 Land Rights of Minority Communities

Communities that are culturally dependent on specific geographical habitats such
as forests, and who lost land through forest preservation efforts, will be
inventoried and given access to land. The Government is enjoined to enact a legal
framework for restitution of such group’s land.340

2.5.2.7.5 Refugees and Internally Displaced Persons

The Policy notes the problems associated with access to land by refugees and
internally displaced persons.341 The Policy advocates for resettlement of Kenyans
who have been displaced from their land as a result of tribal and land clashes.342
The Policy may have, however, overlooked the need to restore property lost to
internally displaced persons.

2.5.3 LEGISLATIVE AND INSTITUTIONAL CHANGES PROPOSED TO IMPLEMENT THE NATIONAL LAND POLICY
With the coming into force of the new National Land Policy, a raft of
institutional changes and emergence will be realized. These include: need to
promote devolution of power and authority, participation and representation,
justice, equity and sustainability. The three institutions that must be in
existence include: the National Land Commission, the District Land Boards and
Community Land Boards.
An Act of Parliament known as “Land Act” needs to be enacted to govern all
categories of land.343 There is currently no system for registering public
institutional land. Due to these lacunae, a practice emerged under which it was
registered in the name of the Permanent Secretary in the Ministry of Finance. In
order to secure tenure to public land, the Policy vouches for repeal of the
Government Lands (Repealed) Act.344 The government is also enjoined to identify
and keep an inventory of all public land and place it under the National Land
Commission to hold and manage in trust for the people of Kenya; rationalize
public land holding and use; establish an appropriate fiscal management system
to discourage land speculation and mobilize revenue; establish mechanisms for
the repossession of any public land acquired illegally or irregularly; establish
participatory and accountable mechanisms for the allocation, development and

338 Ibid, paragraphs 192-193.

339 Ibid, paragraph 193.

340 Ibid, paragraphs 194-196.

341 See for example Kituo cha Sheria and others v the Attorney-General, petition number 19 and 115 of 2013,
. The case generally outlines some of the rights that were infringed more particularly to the Refugees, such
as right to property and ownership of land being infringed.

342 Ibid, clause 3.6.6.

343 NLP, paragraph 58.

344 Chapter 280.

disposal of public land by the National Land Commission; and establish an
appropriate system for registering public institutional land.345
The “Land Act” shall provide, under the National Land Commission, for the
establishment of: The office of Keeper/Recorder of Public Lands who shall prepare
and maintain a register of public lands and related statistics; and a Land Titles
Tribunal to determine the bona fide ownership of land that was previously Public
or Trust Land.346
It is imperative to note that through the Sessional Paper, the government will
ensure that all land is put into productive use on a sustainable basis by
facilitating the implementation of key principles on land use, productivity
targets and guidelines as well as conservation. It will encourage a multi-
sectoral approach to land use, provide social, economic and other incentives and
put in place an enabling environment for investment, agriculture, livestock
development and the exploitation of natural resources.
Some of the issues below were contentious during the formulation and discussion
of the Land Policy for reasons that cannot be exhaustively discussed within the
scope of this book:
1. The conversion of land lease from 999 to 99 years the proposal to resolve
historical injustices;
2. The removal of sanctity to first registration titles issued under the
Registered Land (Repealed) Act (Chapter 300);
3. The inclusion of the concept of “community ownership”;
4. The recovery of illegally and irregularly allocated public land without
compensation;
5. The recognition of the rights of squatters and trespassers (coast of Kenya);
6. The prohibition of the ownership of freehold land by non-citizens;
7. The removal of the control of trust land by County Councils to be replaced by
Community Land Boards;
8. The establishment of and the broad mandate of the National Land Commission; and
9. The recognition of secondary rights (spouses and children).347
The National Land Policy was accorded parliamentary approval in December 2010.
Year 2010 therefore, effectively marks the beginning of the implementation phase.
A Land Reform Transformation Unit (LRTU) was established in accordance with Item
265 of the Sessional Paper No. 3 of 2009 on the NLP for purposes of implementation,
pending the establishment of a National Land Commission (NLC). Activities of the
LRTU will be guided by programmes and priorities outlined in a “Land Policy
Implementation Framework” prepared under the direction of the LRTU. Some of the
tasks to be undertaken include facilitating: the drafting and enactment of
legislation necessary to implement the policy; the establishment of relevant
institutions; the recruitment and training of required personnel; the
mobilization of financial and other resources; the organization of civic
education on land reform; a smooth transition. A number of Acts, discussed in
the previous Chapter, in addition to the Constitution, have to-date been drafted
and extensively discussed, in a bid to implement the Policy.348

345 NLP, paragraph 61.

346 Ibid, paragraph 62.

347 World Bank Report (supra).

348 See Constitution of Kenya; Land and Environment Court Act; Land Act, 2011; Land Registration Act, 2011;
National Land Commission Act, 2011.
 A Policy Steering Committee comprising representatives from the Ministry of
Lands, other line Ministries which impact on land, private sector, civil society,
professional associations, farmers associations and development partners has been
formed to provide policy direction to the reforms. The implementation details
will be driven through five Technical Working Groups (TWGs) with experts drawn
from the public and private sectors and training institutions. The five TWGs are:
Legal; Land Management; Land Information Management Systems; Institutional
Transformation; and Public Education and Awareness.349
The implementation of Kenya’s land policy will be a long term programme
consisting of a set of phased and parallel activities. It will require very long
term financial and political commitment by the government and political leaders
countrywide. The implementation will, however, have to contend with some
fundamental challenges, some of which are, first:
The development of an appropriate Land Policy Implementation Framework: This requires
the input of all stakeholders and a very good understanding of the policy principles
and timelines required to support specific activities. The development of this
framework, which spells the implementation roadmap, will be a fundamental challenge.350
Second, there is need for sustained political goodwill: Land Reforms entail
compromises between beneficiaries of the status quo and the rest of the citizenry.
Invariably, the key beneficiaries of the status quo in Kenya are largely those
who are or have been in political leadership and the executive. Some of these
later became key business investors. The details of the Ndung’u Report, for
instance, reveal the large extent to which members of the political class and
the Executive were involved in the irregular allocation of land. Complicit
political leaders and some in the executive, can therefore present subtle barriers
to implementation.
Third, there may be funding challenges: Paragraph 271 of the Policy indicates
that it is envisaged that 9.6 billion Kenya Shillings will be required over the
first six years of implementation. This is a substantial investment. Clearly,
there are great gains expected if there is sustained effective implementation.
The budgetary process could, however, address other national priorities. Whereas
Kenya’s development partners are expected to provide support in some of the
implementation components, failure to prioritize budgetary support for the
process can be limiting.
Fourth, there is need for nstitutional Transformation: Transiting from the
current institutional set up to the proposed system where the Lands Ministry is
expected to shed its service delivery role to the proposed National Land
Commission while retaining mainly policy formulation and resource mobilization
roles may present challenges. Current office holders in the Lands Ministry will
be expected to either assist or watch as their enviable statutory mandate is
transferred to a different institution. Moreover, the establishment of the
proposed local level community land boards could face hostility from the existing
local authorities currently hosting such roles. Implementation must address such
challenges.
Fifth there may be technical Capacity: High level technical capacity will be
required to review, harmonize and enact new land legislation. Legal experts
required must be able to understand and correctly interpret the proposed policy
principles into statutes. This capacity is not sufficiently available and may
pose a challenge. The development and maintenance of the proposed modern land
information management system will also require specialized technical capacity.
Again, the local supply of this capacity may prove quite a challenge.

349 World bank report (supra).

350 Ibid.
 Sixth Constitutional Support: Some of the provisions in the policy, including
some of the proposed institutions, will require constitutional anchor. In the
event that the new proposed Constitution fails in the referendum, this will pose
a challenge to the implementation of some aspects of the policy. Only specific
constitutional amendments to the Constitution would alternatively help. These
too would require a lot of political goodwill.351
From the foregoing discussion, one would argue that Kenya only requires
focusing on a systematic implementation of its national land policy to be able
to realize its land reforms hence improve its social, economic and political
environment. Importantly though, effective implementation of some of the
provisions will require constitutional support as contained in the Chapter on
land in the Constitution.
Providing suitable answers to matters relating to land-related historical
injustices, ensuring fair and equitable access to land rights and ensuring that
the land governance institutions are effective, transparent, efficient and more
accessible to all Kenyans would contribute largely to social and political
stability. Implementation of the land policy would ensure the security of tenure
for public, community and private land as enshrined in the Constitution. Efficient
land management to ensure that there is sufficient and secure land for investments
and food production will also enhance economic growth.

2.6 CONCLUSION
This chapter has analysed the legislative and institutional structure on land
management and planning as envisaged in the Constitution of Kenya 2010. The
chapter has appreciated the previous legislative framework on land prior to the
enactment of the Constitution. The Acts have been enacted against the backdrop
of the reality that Kenya has over 75 statutes on land which create a confusing
and anachronistic legal framework that fails to recognize women’s land rights 352
and that rights of access to land, security of title to land and availability of
credit are matters largely governed by law and that have a direct bearing on land
management and planning. In response, therefore, the Acts set out to achieve, at
the first level, the following objectives:
(a) To repeal the many outdated laws on land, a majority of which were enacted prior
to independence;
(b) To harmonise the operations of the various institutions that currently play
multiple, overlapping and at times contradictory regulatory, licensing and
management functions;
(c) To prescribe distinct roles to institutions involved in land management and
planning; and
(d) To bolster enforcement of rules and regulations governing land access, use and
management.
At the second level, the Acts enforce the Constitution. The Constitution has
safeguards that protect against abuse of presidential discretion in land
allocations, conservation of environmental resources, addressing historical
injustices, protecting group lands (including ancestral lands) solving squatter
problems and achieving gender parity in landholding, all of which the Acts are
enjoined to implement. Thus, if properly implemented, it is expected that the
new legislation on land will achieve the following desired constitutional
objectives on land ownership, access and use.

351 World Bank Report (supra).

352 Kenya Land Alliance & FIDA Kenya, Policy Brief: Women, Land and Property Rights and the Land Reforms
in Kenya 1 (2006), available at http://www.kenyalandalliance.or.ke/women percent20policy percent20brief.pdf.
2.6.1 Disposal of public land must be sanctioned by statute
Unlike in the independence constitutional order when the President had absolute
discretion to allocate public land,353 article 62(4) of the Constitution requires
public land to be disposed of only in terms of a statute that specifies ‘the
nature and terms’ of the disposal and use. The provision therefore introduces an
element of accountability in disposing of public land. Further, article 67(2)(a)
of the Constitution vests management of the public land in a Commission, not an
individual: the National Land Commission. This increases the latitude for
consultation before dealing in public land.

2.6.2 Corporations will no longer be used as conduits for land grabbing

Land grabbers have in the past hidden behind corporations, including foreign
companies, to fleece the public of its land.354 In response to the vice, article
65(3) of the Constitution requires disclosure of ownership of corporations and
beneficial interests there from when a corporation is to be categorized as a
citizen or non-citizen in relation to property ownership. This promotes
transparency in land ownership by corporations. Considering that it is community
land that was mostly grabbed in the name of corporations, such land can now only
be disposed of in terms of a statute that specifies ‘the extent of rights of the
members of each community individually and collectively.’ The administration of
community land vests with the National Land Commission while title vests in
respective county governments.355 The Commission is enjoined to administer
community land for the benefit of the residents of the county government.
Separation of trusteeship of community land,356 from administration of the land
is a prudent initiative to ensure consultation before dealing in public land.

2.6.3 Conservation of forests, national parks, game reserves, riparian

reserves and specially protected areas
Plunder of forests, national parks, game reserves, riparian reserves and other
environmental resources357 is curbed under the Constitution. The Constitution
identifies such resources as public land whose title either vests in respective
county governments or the national government, administered by the National Land
Commission, and whose disposition, if at all, can only be legal if it accords
with statute that specifies ‘the nature and terms’ of the disposal and use.358

2.6.4 Conservation of pastoral lands

Allocation of pastoral lands to private individuals is checked under the
Constitution. Pastoral land and land held by hunter-gatherer community is
recognised under article 63(2)(d) of the Constitution as a community land, whose
disposal, if at all, must accord to the terms of a statute that specifies ‘the
extent of rights of the members of each community individually and collectively.’

353 Ndung’u Report, pp. 148-169.

354 Ndung’u Report, pp 89-90.

355 Constitution of Kenya, section 67(2)(a).

356 Article 63 of the Constitution vests ownership of Community Land on County Government who hold the
community land in trust of people resident in the County.

357 Ndung’u Report, pp 148-169.

358 Constitution of Kenya, article 62(4).

2.6.5 Historical injustices
Redress to historical problems such as the squatter problem is contemplated in
article 63(2) of the Constitution which defines community land to include
ancestral land. Secondly, limitation of landholding by non-citizens under article
65 of the Constitution to 99 years is critical in reducing the near infinite 999
leasehold interests by non-citizens to some reasonable period. Thirdly, the
National Land Commission is mandated to investigate and recommend mechanisms for
redressing historical land injustices. The mandate is critical as a reprieve to
anyone whose land has been irregularly or illegally acquired. Lastly, equitable
access to land is codified as one of the principles of land policy.359 Women,
whose land ownership, access and use have been skewed,360 have a sense of reprieve.
Moreover, article 68 of the Constitution obliges Parliament to enact legislation
that recognises and protects matrimonial property and protection of interest of
dependants in a deceased estate.

CHAPTER THREE

PROPRIETARY RIGHTS IN LAND

3.1 CONCEPTUALISING A PROPRIETARY RIGHT
Rights in or over land are different from mere contractual rights. Land Law
rights affect persons other than the parties who created the rights. This is what
defines the ‘proprietary’ nature of land law rights and it is completely different
from personal obligations which an ordinary contractual obligation establishes.
Proprietary rights can ‘‘run’’ with the land and can confer benefits and burdens
on whomsoever comes to own the land.361 Nonetheless, a better appreciation of
‘‘proprietary right’’ requires an understanding of the concept of ‘‘property’’
and ‘‘right’’.
Property is not a thing, but rather a relationship which one has with a thing,
the object of ownership.362 To claim property in a resource is, in effect, to
assert a strategically important degree of control over that resource. Property
refers to a quantum of socially permissible power exercised in respect of a
socially valued resource. Justice Murphy, in Dorman v Rodgers,363 states in this
regard that “in modern legal systems, ‘property’ embraces every possible interest
recognised by law which a person can have in anything and includes practically
all valuable rights.”364 Central to the idea of ‘‘property’’ is that ‘‘property’’
in a resource is capable of calibration, rather than being absolute, from a

359 Constitution of Kenya, article 60(1)(a).

360 UNDP, supra.

361 Martin Dixon (2002), Principles of Land Law, London: Cavendish Publishing Limited, 4th Edition, page
21

362 Kevin Gray and Susan Francis Gray (1998), ‘The Idea of Property in Land,’ in Susan Bright and John K.
Dewar (Eds), Land Law: Themes and Perspectives, Oxford: Oxford University Press, pp. 15-51. See also Jeremy
Bentham (1948), An Introduction to the Principles of Morals and Legislation, Oxford: Oxford University Press,
page 337.

363 (1982) 148 CLR 365 at 372.

364 See also Plenty v Seventh Day Adventist Church of Port Pirie (1986) 43 S.A.S.R. 121 at 139, per
Motheson, J., at 143 per Olsson, J. Contrast the reasoning in the foregoing case with the holding in Dixon v
Esperance Bay Turf Club Inc. (2002) WASC 110, which excluded certain rights as not being proprietary.
maximum value to a minimum value; at any particular time, it is possible to
“measure the quantum of ‘property’ which someone has in a particular resource.”365
A licensee has only a right of access to land, but the power to control access
to land and to ultimately exclude the licensee from the land remains with the
owner of the land; proprietary interest in the circumstances remain vested in
the owner of the land.366 A tenant, on the other hand, or a transferee of title
acquires “proprietary interest” in land.367 Secondly, to have ‘‘property’’ in a
resource may be consistent with the acquisition or retention by others of
‘‘property’’ in the same resource. Several land laws in Kenya, for instance, are
cognizant of this reality and they enable acquisition and retention of
‘‘competing’’ and independent ‘‘property’’ in one resource.368 Maureen Tehan
argues as follows in this regard:
In its regulation of property law….has always accommodated more than one proprietary
interest in the same piece of land. The conceptual underpinnings for this scheme have
traditionally been identified as the doctrine of tenure and the doctrine of estates.
While the former is, arguably, of diminishing contemporary importance, it provides
historical support for the fragmentation of interests in land.the doctrine was based
on the notion that the ultimate title to all land was in the Crown and all tenures
are referable to some original grant. The doctrine enabled many different interests
to be granted and harmoniously co-exist in the one piece of land, each interest having
a shape and form that allowed concurrent enjoyment and determined priority, if
necessary, of those interests…369
Oudreagogo and Toulmin, while referring to customary tenure, describes the tenure
as that of “interlocking rights over a single piece of communal land;” that “a
customary authority may exercise broad communal rights while groups or individual
users may be granted specific rights of access and use.”370
The relationship between value and obligation is what constitutes a right;371
a right is the claim that the value be respected. Central to all legal
relationships is the idea of rights and duties. The former refers to the stage
of development when it can yield to juristic analysis; it will be found that the
concepts of rights and duties form a pivotal point in the structure of the legal
machinery by which the system is enabled to perform its social functions.”372 The

365 See supra, Kevin Gray and Susan Francis Gray (1998), ‘The Idea of Property in Land,’ in Susan Bright
and John K. Dewar (Eds), Land Law: Themes and Perspectives, Oxford: Oxford University Press, pp. 15-51.

366 Elitestone Ltd v Morris [1997] 1WLR 687 at 691G-H.

367 Lezabar Pty Ltd v Hogan (1989) BPR 9498.

368 Registered Land (Repealed) Act Land Registration Act, section 28 states: “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…”; Registration of Titles (Repealed) Act The Court of Appeal in Republic thro’ Olum v Angungo
and others [1988] KLR 529 interpreted the provision of section 23(1) Registration of Titles (Repealed) Act
that “…pursuant to section 23(1) of the Registration of Titles (Repealed) Act (now repealed), 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…”

369 Maureen Tahen (1997),’Co-existence of Interests in Land: A Dominant Feature of the Common Law,’ in
Christine Watson (Ed.) Land, Rights, Laws: Issues of Native Title, Australian Institute of Aboriginal and
Torres Strait Islander Studies, Vol. 1, Issues Paper number 12, page 3.

370 Ouedraogo H. and Toulmin C. (1999), Land Tenure, Poverty and Sustainable Development, Edinburgh:
International Institute for Environment and Development.

371 Robert V Andelson (1971), Imputed Rights: an Essay in Christian Social Theory, Athens: University of
Georgia Press, page 310.

372 See Lord Lloyd’s ,The Idea of the Law (1970) page 309.
exact nature and content of particular species of rights, whether legal, moral,
political or economical and the identity of those in whom they vest, will
naturally vary from one political economy to another.373 Thus under capitalism,
rights of whatever species are characteristically vested in individuals or
nucleated groups since these are the focus of production relations.374 A right
signifies an affirmative claim against another in respect of a given situation,
object or thing in which the right-holder has an interest.375 The idea of a
“right” essentially boils down therefore to a statement about the quantum or
range of activities that a given society will permit its members, individually
or collectively, either serially or concurrently, to execute. This is of course,
with respect to certain prescribed situations, objects or things.
Proprietary right refers to either an estate in land or an interest in land.
An estate in land confers a right to use and control land for a ‘‘slice of
time.’’376 An estate in land can be in the nature of a fee simple, freehold,
leasehold or a fee tail. Interests in land are proprietary rights that enable a
person to enjoy the estate of another. They include the right of way over someone
else’s land;377 the right to prevent an owner of land from carrying on some
specific activity on his own land;378 or the right of entry into another person’s
land to do some specific act, such as to pick the soil in that land.379 Proprietary
interest may be transferred or sold to another along with the land benefited by
the right, and may be binding against a new owner of the ‘‘estate’’ over which
they exist.380 Proprietary rights operate outside the normal concepts of privity
of contract; the law does not permit the parties to produce novel proprietary
rights. Lord Brougham, LC, in recognizing the special nature of proprietary
rights states that:
[I]t must not therefore be supposed that the incidents of a novel kind can be devised
and attached to property, at the fancy or caprice of any owner.381
This chapter, therefore, examines the various categories of proprietary rights
and interest in land capable of being possessed.

3.2 FREEHOLDS

373 Okoth-Ogendo, supra

374

375 The conception of a “Right” as an “Affirmative Claim” is largely the definition of a Right in Hohfeldian
terms.

376 Martin Dixon (2002), Principles of Land Law, London: Cavendish Publishing Limited, 4th Edition, p. 21.

377 This is referred to as an easement. Restrictive covenants impose significant limitations upon the
manner in which an owner may use land. There may be limitations as to the height, composition, size or external
features of a building on the land.

378 This right is referred to as a restrictive covenant.

379 Profit aprendre.

380 Maureen Tahen (1997), Co-existence of Interests in Land: A Dominant Feature of the Common Law,’ in
Christine Watson (Ed.) Land, Rights, Laws: Issues of Native Title, Australian Institute of Aboriginal and
Torres Strait Islander Studies, Vol. 1, Issues Paper number 12, page 4.

381 Keppell v Bailey (1834) 2My&K 517 at page 535.

Freehold refers to the right to use and enjoy the land for the duration of the
grantee and that of his heirs and successors.382 This right is also known as a
‘fee simple.’ A freehold is freely alienable (transferable) during the life of
the estate owner by way of gift, sale, adverse possession; or on his death by
way of will or in accordance with the rules of intestacy. Each new estate owner
is then entitled to enjoy the land for the duration of his life and that of his
heirs and successors. Such that, whereas a freehold is a description of ownership
for a limited duration as any estate, the way in which the duration of the estate
is defined and its free alienability means that, in most respects, the freehold
is equivalent to permanent ownership of land.
Each freehold owner has within his purview, the power to transfer the estate
to another and considering that the duration of the estate supersedes the life
of the current owner, freeholds can exist for generations. Instances where holders
of freehold titles have transferred their proprietorship abound. In the case of
Insurance Company of East Africa(“ICEA”) v the Attorney-General and others,383
ICEA sought and obtained orders to restrain the third and fourth respondents in
the case384 from dealing in any manner whatsoever with Land Reference Number
MN/1/10036 and from obstructing ICEA and its agents from accessing the Indian
Ocean through a delineated Access Road reserved forming part of the land
registered as LR 67/R, claiming freehold over Land Reference Number MN/1/10036
and that the Access Road vested in the Municipal Council of Mombasa385 and was
therefore incapable of alienation to the third and fourth respondents. The
freehold interest in the case had been acquired by way of purchase of the Land
Reference Number MN/1/10036.386 In the case of Judy Wanjiru Wainaina v Mathew
Mbugua Waigwa, the plaintiff, claiming freehold interest over Land Registration
Number Nairobi/Block 144/1, sought and obtained eviction orders against the
defendant with whom they had cohabited and who had attempted to defraud her of
her plot. In the case of Peter Karanja Mungai v Daniel Njoroge Kamau and
others,387 the plaintiff claimed and obtained freehold interest over and delivery
of vacant possession of the Land Reference Number Kabete/Nyathuna/1673 measuring
about 2¼ acres, which the plaintiff alleged to have acquired by way of purchase
of the plot from the first and second defendants. The first and second defendants
had purported to sell the suit property to the third defendant at a time when
they had a valid sale agreement of the plot to the plaintiff and there existed
a caution lodged by the plaintiff as the purchaser of the Plot.
In the fullness of time, when no more heirs or successors exist, the non-
enduring nature of freeholds is revealed when the land reverts to the Government
as the absolute owner; in instances where a holder of freehold dies leaving no
will and no next of kin to inherit the land under intestacy, the estate will have
run its full hog and the land reverts to the Government. Martin Dixon is,
therefore ,right in his argument that freehold is still ownership of land for a
‘‘slice of time.’’388

382 Okoth-Ogendo, HWO, Tenants of the Crown: Evolution of Agrarian Law and Institutions in Kenya, ACTS
Press, 1991.

383 Mombasa High Court civil case number 135 of 1998 (UR), per P.N. Waki (as he then was).

384 Zaherali Bahadurali Bhanji and Faiza Zaherali Bahadurali.

385 See Local Government Act (Chapter 265), section 182(1) which states that “182. (1) every municipal
council or town council shall have the general control and care of all public streets which are situated within
its area, and the same are hereby vested in such local authority in trust to keep and maintain the same for
the use and benefit of the public.”

386 Nairobi civil suit number 1326 of 1990.

387 Nairobi civil suit number 5869 of 1993.

388 Dixon, supra, page 5.

3.3 LEASEHOLD INTERESTS
Essentially, the term leasehold refers to the bundle of rights that are contained
in a lease. The concept refers to the quantum of interests inherent in a lease.
A lease generally, means the transaction which confers a leasehold interest. A
leasehold interest is a fixed period estate and, accordingly, can never be
freehold.
Section 2 of the Land Act defines a lease as “the grant, with or without
consideration, by the proprietor of land of the right to exclusive possession of
his or her land, and includes the right so granted and the instrument granting
it, and also includes a sublease but does not include an agreement for lease.”389
For lease to be valid it must have 4 essentials, viz: confer a right to exclusive
possession; relate to defined premises; pertain to a definite period or to a
period though not ascertained, be capable of being so ascertained.

3.3.1 Exclusive Possession

The tenant must acquire the right of exclusive possession to the exclusion of
the landlord and all persons claiming through him. This view of the law was laid
down in the case of London & North Western Rail Co v Buckmaster.390 However; this
does not mean that where a person is let into exclusive possession he necessarily
becomes a tenant. As a matter of fact, such a person only acquired the personal
privilege of occupation in the nature of a license, which may be revoked pursuant
to any implied or express term of the grant.
In Runda Coffee Estates v Ujagar Singh391 the court stated thus:
‘The expenditure of money by a person on another’s land in expectation, by reason of
a representation made by the owner of the land, of being allowed to occupy that land,
gives rise to an estoppel precluding the owner from giving any evidence of an act
which would terminate that occupation except in accordance with the representation.
This right to continue in occupation, however, creates no title in the land and the
right is co-extensive with and dependant upon a clear and unequivocal representation’.

3.3.2 Defined Premises or Interest

The grant of a lease must pertain to a definite interest in land which is capable
of being the subject of an assignment.

3.3.3 Defined Premises or Land

There can be no lease unless the property in question is defined or capable of
being defined. In Heptulla Brothers Ltd v Jambhai Jeshangbhai Thakore, the basic
issue was whether, in view of the terms of the document, which purported to be
a registrable lease, the appellants were tenants or licensees in respect of that
part of the shop, which they occupied. 392The court held that, ‘‘No tenancy was
ever created by or in reference to the document because the premises intended to
be let could never be ascertained with sufficient precision’’.

3.3.4 Period certain or definite

The period of the lease must be defined or capable of being defined. The ultimate
date of expiry of the lease must be capable of being predicted right from the

389 See Land Act number 6 of 2012, section 2.

390 (1874) 10 LR Q.B 70.

391 [1966] EA 564.

392 [1957] EA 358.

start of the lease. The lease must have defined frontiers, that is, a beginning
and an end. Lord Denning, MR, in Harvey v Pratt393 stated that, ‘‘It has been
settled law for all my time that, in order to have a valid agreement for a lease,
it is essential that it should appear, either in express terms or by reference
to some writing which would make it certain or by reasonable inference from the
language used, on what day the term is to commence.’’394
However, where the date of commencement or the date of expiry of the lease is
not certain, the transaction is void. For instance, where a house was let for
the “duration of the war” it was held that the agreement did not give rise to a
lease for want of certainty of the period intended. This was the Court’s position
in Lace v Chandler395 where it was stated by Lord Greene, MR that:
[T]he parties in the rent-book agreed to a term expressed by the words “furnished
for duration”- which must mean the duration of the war. The question immediately
arises whether a tenancy for the duration of the war creates a good leasehold interest.
In my opinion, it does not. A term created by a leasehold tenancy agreement must be
a term which is either expressed with certainty and specifically, or is expressed by
reference to something which can, at the time when the lease takes effect, be looked
to as a certain ascertainment of what the term is meant to be. It is important to
observe that where the term is capable of being rendered certain, it must be so
‘before the lease takes effect.
Neither can a lease be granted ‘‘for as long as the tenant wishes to reside in
the property’’ nor ‘‘forever.’’ If the maximum duration of the lease is fixed,
then it does not matter whether the term is short or long – a matter of days or
tens of years. It is only the maximum duration of the lease that needs to be
fixed. It is, however, prudent to appreciate trivial instances when it may be
difficult to know from the start of the lease, the maximum duration that the
lease would last, for instance, in periodic tenancies – weekly, monthly, yearly
or other determined period. It is impossible in such leases to determine with
precision at the start of the lease, for how many periods the lease would be
renewed. Reliance may have to be placed on the termination notice to know the
actual maximum period of a periodic lease. The lease can be made prematurely
terminable, for example, by giving notice or upon the happening of some event
during the term.
It is worth noting that in its nature and origin, a lease was nothing more
than a personal permission to use land.396 Any rights that the lessee enjoyed
were, therefore, construed as personal rights against the landowner (the lessor)
and not property rights in the land itself. This meant that if the lessee was
evicted, he had no right to reclaim possession of the land. However, this position
changed by the end of the 15th Century when courts began to restore possession to
a lessee who had been wrongly evicted. This demonstrated that the lessee was
seized of more than mere contractual rights; the lessee was no longer just a land
user, but a land holder. The jurisprudence progressively developed until
leasehold got recognized as another kind of land tenure.
The Land Act has codified some of the essential requirements of a lease.
Under section 56(a) of the Land Act, a lease must be for “a definite period or
for the life of the lessor or of the lessee or for a period which though

393 [1965] 1 WLR 1025.

394 [1957] EA 358.

395 [1944] KB 368.

396 Bryn Perrins (2000), Understanding Land Law, 3rd Edition, London: Cavendish Publishing Limited, page
40. According to the author, the word ‘lease’ is derived from the French verb laisser which means ‘to allow.’
A landowner (lessor) therefore merely lets another (lessee) to use his land.
indefinite, may be determined by the lessor or the lessee.” Where a term of a
lease is not specified, the lease is “deemed to be periodic lease.”397

3.4 SUB-LEASES
A landowner holding freehold or leasehold interest from the government may grant
a sub-lease out of the leasehold or freehold interest. Subleases may also be
granted by third parties conveying some or all of the leased property for a
shorter term than that of the head lease. Such subleases may be prohibited by
the original lease, or require written permission from the owner. The term of
the lease granted by the purchaser under sub-lease is dependent on the head
lease. The concept of sub-leases is common with ownership of flats and apartments
in major towns in Kenya. The owners of the apartments constitute themselves into
a management company purposefully to manage the estate, with such owners of the
apartments being the shareholders of the company. Each shareholder is entitled
to enjoy common amenities on an equal footing with other shareholders, and the
situation of common areas and amenities are clearly described.
The management company is also charged with the mandate of purchasing
reversionary interest from the head lease to ensure that upon the expiry of the
sub-lease, the sub-lease can be renewed in the name of the management company
with the shareholders continuing to own common areas. The management company
collects a monthly service charge from its shareholders to pay for land rates,
water, electricity, security in the common areas and to maintain the compound.
The management company also maintains a capital fund out of the service charge
to cater for repairs of common areas and amenities.

3.5 SECTIONAL TITLES

Sectional titles came about to allow a person to purchase a section of a building
or property. It enables individual ownership of one dwelling unit within a multi
dwelling building. Unit owners have undivided ownership interest in the land and
those portions of the building shared in common.398 This type of ownership has
been present in Europe since the end of the middle ages. In the United States it
dates to the latter half of the 19th Century, and has been popular in crowded
urban areas. An alternative to the condominium is the cooperative, in which
residents own a share of a corporation, with each share entitling the owner to
reside in a particular unit in the building.399 It is a form of real estate
ownership in which individual residents hold a deed and title to their houses or
apartments and pay a maintenance fee to a management company for the upkeep of
common property such as grounds, lobbies, and elevators as well as for other
amenities. Condominium owners pay real estate taxes on their units and can sublet
or sell as they wish.400

3.6 REMAINDERS AND REVERSIONS

A remainder in property law is a future interest given to a person (who is
referred to as the transferee or remainder man) that is capable of becoming
possessory upon the natural end of a prior estate created by the same instrument.
There are two types of remainders in property law-vested and contingent. A
remainder is vested if, first,the remainder is given to a presently existing and
ascertained person, and second, it is not subject to a condition precedent. A

397 Land Act, section 57(1)(a).

398 See section 54(3) & (4) of the Land Registration Act,2012 and the Sectional Properties Act No. 21 of
1999

399 http://www.answers.com/topic/condominium#ixzz1coxu5rSV

400 http://www.answers.com/topic/condominium#ixzz1coyN4ssD
vested remainder may be indefeasibly vested, meaning that it is certain to become
possessory in the future, and cannot be divested.
A remainder is contingent if one or more of the following is true: first, it
is given to an unascertained or unborn person and second, it is made contingent
upon the occurrence of some event other than the natural termination of the
preceding estates. The key difference between a reversion and a remainder is that
a “reversion” is held by the grantor of the original conveyance, whereas
“remainder” is used to refer to an interest that would be a reversion, but is
instead transferred to someone other than the grantor. Similarly to reversions,
remainders are usually created in conjunction with a life estate, life estate
pur autre vie, or fee tail estate (or a future interest that will eventually
become one of these estates).
Under the provisions of section 69(1) of the Land Act, unless a contrary
intention is expressed, burden and benefits of covenants over land run with the
reversion. The provision states as follows:
if the interest held by the lessor under a lease, the reversion, ceases to be so held
by the lessor, whether by transfer, assignment, grant, operation of law or otherwise,
then, unless a contrary intention, expressly or impliedly, appears from the lease, or
from any other circumstance-
(a) The obligations imposed on the lessor by covenant of the lease run with the
reversion and may be enforced by the person who is from time to time entitled to
the reversion;
(b) The rights to the benefits of every covenant imposed on the lessee that refers to
the subject matter of the lease may be exercised and enforced by the person who
is from time to time entitled to the reversion against the person who is from time
to time entitled to the lease.
If a lessor transfers or assigns a reversion, any payment by the lessee to the
transferor or assignor discharges the lessee to the extent of the payment unless
the lessee had actual notice of the transfer or assignment before making the
payment. Registration of a transfer of the reversion does not, in itself,
constitute an actual notice to the lessee of the transfer of the reversion.401

3.7 CO-OWNERSHIP

3.7.1 Ownership and Land Possession during the Colonial era in Kenya
Across Africa most people hold land under different types of informal customary
tenure, and the customary arrangements exist alongside the formal systems of
common and statute law that were imported during the colonial period.402 During
the twentieth Century, land tenure in Africa was also influenced by population
pressure and growing competition for land.403 Increasing individualization and
commoditization of land rights occurred, and private rights of use and occupancy
within customary tenure became increasingly the norm.
During the reign of colonialists, it was said that the right of perpetual
possession prevailed as against the Crown or any other person not belonging to
the affected tribe. This was authoritatively decided in the case of Stanley
Kahahu v the AG404 where the question for determination was whether natives have
any rights, and if so, what rights in land in Native Reserves. The Court held

401 Section 70 of the Land Act.

402 Adams and Turner, Legal Dualism, McAuslan, Only the Name.

403 Platteau, Institutions, Social Norms, Peters, Inequality.

404 (1938) 18 KLR 5

that members of a native tribe for whom land has been reserved by the government
under section 2(1) of the Natives Land Trust Ordinance had a right of perpetual
occupation subject to the power of the Governor to grant land on lease or license
under section 8 of the Ordinance. This right prevailed as against the Crown and
any person not belonging to the particular tribe.
In another case of Isaka Wainaina wa Gathomo and another v Murito wa indangara
and another,405 Sir Jacob Birth, CJ, decided that the effect of the 1915 Crown
Lands Ordinance, the Kenya Annexation Order-In-Council, 1920 and the Kenya
Order-In-Council, 1921 was, inter alia, to vest land reserved for the use of
the native tribe in the Crown and in consequence all native rights in such
reserved land, whatever they were under the githaka system, disappeared and
natives in occupation of such Crown land became tenants at the will of the
Crown.It appears that this judgment apparently overruled the decision of Maxwell,
J in Kimani wa Kabato v Kioi wa Nagi, which was to the effect that a member of
the Kikuyu tribe can acquire and retain tracts of land within the reserve: and
that such rights can be enforced by a suit for damages for trespass or for an
injunction.406 Sir Jacob Birth’s judgment was followed by Stephens, J in Douglas
Mwangi wa Kamotho and 2 others v Chief Mwichuki and the AG.407
In 1934, gold was discovered in Kakamega and the natives settled thereabouts
evicted forthwith to give way to prospectors.408 This showed how tenuous the
rights of Africans or Natives in land were. As a consequence, the Kenya Land
Commission was set up to advise the government on land policy.409 This Commission
completed its report in 1934 and concluded that Africans had little claim to the
Highlands (if any) and further, if there were any claims at all, compensation
ought to be paid rather than giving the land to the claimants, and even further,
that upon such payment, all customary rights should be extinguished forever. It
recommended that the settlers’ security of ownership of the white highlands be
guaranteed vide an Order-in-Council. This was done in 1939 vide the Kenya
(Highlands) Order-in-Council.
As a corollary, the Kenya (Native Areas) Order-in-Council was also enacted in
the same year. It set up a newly constituted Native Trust Board.410 This Board
was to hold trust land for the natives. The same Order-in-Council redefined
Crown Land by amending the definition of “land” in the Government Land Act,
1915.411 In 1938, the Native Lands Trust Ordinance was enacted (on the
recommendation of the Cater Commission). The rules made thereunder, that is,
the Native Land Tenure Rules (1956), provided details of the legal regime for
the administration of African Reserves. Under the stated Rules, communal or
familial ownership (as opposed to individual ownership) was recognised – the
latter form of ownership being stranger to customary law.

405 9 EALR 102

406 8 EALR 129.

407 Civil case number 113 of 1925.

408 Under the Native Lands Trust Ordinance, the Governor could not set land apart for Mineral Development
without consulting the Local Native Council. It was also provided that the affected natives would be given
alternative land. Upon the discovery of gold in Kakamega in 1932, the requirements of consultation and
provision of alternative land were repealed by the Native Trust Land (Amendment) Ordinance. The repeal thus
enabled the Government to evict the Africans and to settle gold prospectors in the Area.

409 Otherwise known as the Carter Commission.

410 Formerly there was the Crown Trust Board.

411 Government Lands (Repealed) Act (Chapter 280 of the Laws of Kenya).
 It is worth noting that the Carter Commission Report, and its subsequent
legislative implementation, confirmed the gradual process of creating two
distinct reserve systems, that is, one for Africans and the other for Europeans
and accordingly, a dual system of land law, to wit, English and customary laws.

3.7.2 Conceptualising Customary Tenure

Customary tenure refers to the communal relationship defined between people as
individuals and groups, with respect to land.412 The tenure is a social institution
in which relationship between individuals and groups govern rights, rules and
values related to land use.413 Tenure over common resources involves a bundle of
rights encompassing access, exclusion and the right to use and extract resources.
It also includes management rights regarding allocation and transfer.414
Temporary access may also be granted to outsiders based on negotiation.415
Proponents of this type of tenure have argued that in its operation, the tenure
achieves the principles of participation, empowerment, decentralization,
sustainable resource use and improved livelihood of the respective community;416
that communal rights over common pool resources such as pastoral land, forests,
fallow fields, inland waterways and wetlands are an essential aspect of many
rural livelihoods, allow access to and use of resources, and provide a foundation
for many communities way of life.417
Customary tenure needs not be befuddled with customary law. While the former
refers to community rights to common property and resources, the latter refers
to legal rules and processes that have become an intrinsic part of accepted legal
conduct and arise from social practices rather than positive law.418 The 2010
Constitution has duly recognised communal tenure in Kenya and prescribed the
procedure for its management. The community has emphasized the principle of
devolution of management responsibility and participation to the community level
by specially vesting in county governments the title in ancestral lands for the
benefit of members of such a community. Management of such land is done by an
independent Commission, the National Land Commission, again for the benefit of
the community. The Constitution has thus decentralized decision making in
communal land to the community level and provided an opportunity for empowerment
of the communities to manage their own affairs.419

3.7.3 Joint Tenancy

412 Food and Agricultural Organisation (2002), ‘Land Tenure and Rural Development, Rome: Food and
Agricultural organization,’ in FAO Land Tenure Studies, No. 3.

413 Birgegard L. (1993), ‘Natural Resource Tenure: A Review of Issues and Experiences with Emphasis on Sub-
Saharan Africa,’ in Rural Development Studies, Uppsala: International Rural Development Centre, No. 3.

414 Palmer, R. (2007), Literature Review of Governance and Secure to Land, Cairo: North South Consultants
Exchange.

415 See Ouedraogo H. and Toulmin C. (1999), Land Tenure, Poverty and Sustainable Development, Edinburgh:
International Institute for Environment and Development.

416 See Ross Andrew Clarke (2009), ‘Securing Communal Land Rights to Achieve Sustainable Development in
Sub-Saharan Africa: Critical Analysis and Policy implications,’ in Law Environment and Development Journal
(LEAD), pp. 130-151 at 132.

417 Ibid, page 133.

418 Bruce, J. and Mgot_adholla (Eds) (1993), Searching for Land Tenure Security in Africa, Dubuque: Kendall
Hunt.

419 See, generally, Chapter 1.

Joint tenancy is a special form of ownership by two or more persons of the same
property. The individuals, who are called joint tenants, share equal ownership
of the property and have equal, undivided right to keep or dispose of the
property. Joint tenancy creates a right of survivorship. This right provides that
if any one of the joint tenants dies, the remainder of the property is transferred
to the survivors.420 Descended from common-law tradition, joint tenancy is closely
related to two other forms of concurrent property ownership: tenancy in common,
a less restrictive form of ownership that sometimes results when joint tenancies
cease to exist, and tenancy by the entirety, a special form of joint tenancy for
married couples.
Joint tenants usually share ownership of land, but the property may instead
be money or other items. Four main features mark this type of ownership first
the joint tenants own an undivided interest in the property as a whole. Each
share is equal, and no one joint tenant can ever have a larger share. Second,
the estates of the joint tenants are vested (meaning fixed and unalterable by
any condition) for exactly the same period of time—in this case, the tenants’
lifetime. Third, the joint tenants hold their property under the same title.
Fourth, the joint tenants all enjoy the same rights until one of them dies. Under
the right of survivorship, the death of one joint tenant automatically transfers
the remainder of the property in equal parts to the survivors. When only one
joint tenant is left alive, he receives the entire estate.
If the joint tenants mutually agree to sell the property, they must equally
divide the proceeds of the sale. Because disagreement over the disposition of
property is common, courts sometimes intervene to divide the property equally
among the owners. If one joint tenant decides to convey his interest in the
property to a new owner, the joint tenancy is broken and the new owner has a
tenancy in common.
A gift of land to two or more persons in joint tenancy is such a gift that
imparts to them, with respect to all other persons than themselves, the properties
of one simple owner. Each joint tenant holds nothing by himself and yet holds
the whole together with the other. This is created when there is unity of title,
unity of possession, unity of interest and unity of time. These four unities must
exist concurrently and all must be vested in more than one person. Essentially
this is the common law rule. However, in Kenya, the rule is statutory. Section
91(4) of the Land Registration Act describes joint tenancy as follows:
If land is occupied jointly, no tenant is entitled to any separate share in the land
and, consequently—
(a) disposition may only be made by all the joint tenants;
(b) on the death of a joint tenant, that tenant’s interest shall vest in the surviving
tenant or tenants jointly; or
(c) each joint tenant may transfer their interest inter vivos to all the other tenants
but to no other person, and any attempt to so transfer an interest to any other
person shall be void.
Section 60 of the Land Registration Act provides that “if any of the joint tenants
of any land, lease or charge dies, the Registrar shall, upon proof of the death,
delete the name of the deceased tenant from the register by registering the death
certificate.”421 Under the provisions of section 67 of the Land Registration Act,
“whenever two or more proprietors are registered jointly as trustees, and the
survivor of such proprietors would not be entitled to exercise individually the
powers that were vested in them, the Registrar shall enter a restriction to that
effect.”

420 See, Isabel Chelangat v Samuel Tiro Rotich and other [2012] e KLR, on the definition of Joint Tenancy.

421 See Land Registration Act, number 3 of 2012, section 60.

 Joint tenants, not being trustees, may execute an instrument in the prescribed
form signifying that they agree to sever the joining ownership and the severance
shall be complete by registration in the prescribed register of the joint tenants
and tenants in common.422 Each co-tenant is entitled to receive a copy of the
certificate of title to the land.423

3.7.4 Tenancy in Common

Tenancy in common is a form of concurrent ownership that can be created by deed,
will, or operation of law.424 Several features distinguish it from joint tenancy.
A tenant in common may have a larger share of property than the other tenants.
The tenant is also free to dispose of his or her share without the restrictive
conditions placed on a joint tenancy. Unlike joint tenancy, tenancy in common
has no right of survivorship. Thus, no other tenant in common is entitled to
receive a share of the property upon a tenant in common’s death. Instead, the
property goes to the deceased’s heirs.
Thus, tenants in common have quite separate interests. The only fact that
brings them into co-ownership is that they both have shares in a single property,
which has not yet been divided among them. No one can, therefore, say which of
them owns any particular parcel of land. The size of each tenants’ share is fixed
once and for all and is not affected by the death of one of his companions. When
a tenant in common dies, his interest passes under his will or in intestacy, for
his undivided share is his to dispose of as he wishes. For a tenancy in common
to arise there is only one requirement, that is, unity of possession; the rest
of the unities essential for a joint tenancy are not required, for example, the
unity of interests may be absent and the tenants may hold unequal interests.
However, a proprietor in common cannot deal with his undivided share in favour
of any person other than the other proprietor(s) unless of course with his ortheir
consent, which must not be unreasonably withheld.425 If any land, lease or charge
is owned in common, each tenant shall be entitled to an undivided share in the
whole and on the death of a tenant, the deceased’s share shall be treated as part
of their estate.426
Section 61(1) of the Land Registration Act provides that “If a sole proprietor
or a proprietor in common dies, the proprietor’s personal representative shall,
on application to the Registrar in the prescribed form and on the production to
the Registrar of the grant, be entitled to be registered by transmission as
proprietor in the place of the deceased with the addition after the
representative’s name of the words “as executor of the will of [deceased]” or
“as administrator of the estate of [deceased]”, as the case may be.” Once the
grant is confirmed, upon production of the grant, the Registrar is enjoined to
register by transmission “any transfer by the personal representative” and “any
surrender of a lease or discharge of a charge by the personal representative.”427
Any of the tenants in common may, with the consent of all the tenants in common,
make an application, in the prescribed form, to the Registrar of Titles for the
partition of land occupied in common and subject to the provisions of this Act
and of any other written law applying to or requiring consent to a sub-division

422 Ibid, section 91(7).

423 Ibid, section 92(1).

424 See also Isabel Chelangat v Samuel Tiro Rotich and other [2012] eKLR, on the definition of /Tenancy in
common.

425 Ibid, section 91(6).

426 Ibid, section 91(5).

427 Ibid, section 61(2).

of land and of subject to any covenants or conditions in a certificate of a land,
the Registrar shall effect the partition of the land in accordance with the
agreement of the tenants in common.428 If any undivided share in land or a lease
held by tenants in common is subject to a charge, a partition of that land or
lease shall not be registered by the Registrar unless the lender’s written consent
is produced to the Registrar.429

3.7.5 Co-ownership by Spouses

Subject to Matrimonial Property Act, where a spouse obtains land for co-ownership
and use by both spouses, the spouses are presumed to own the land as joint tenants
and the Registrar is enjoined to register the spouses as joint tenants, unless
where “any undivided share in land or a lease held by tenants in common is subject
to a charge, a partition of that land or lease shall not be registered by the
Registrar unless the lender’s written consent is produced to the Registrar.”430
If land is held in the name of one spouse only but the other spouse or spouses
contribute by their labour or other means to the productivity, upkeep and
improvement of the land, that spouse or those spouses shall be deemed by virtue
of that labour to have acquired an interest in that land in the nature of an
ownership in common of that land with the spouse in whose name the certificate
of ownership or customary certificate of ownership has been registered and the
rights gained by contribution of the spouse or spouses shall be recognized in
all cases as if they were registered.431
Before a spouse “who holds land or a dwelling house in his or her name
individually” can legitimately dispose of that land or dwelling house, “the
lender shall, if that disposition is a charge, be under a duty to inquire of the
borrower on whether the spouse has or spouses have, as the case may be, have
consented to that charge” or “the assignee or transferee shall, if that
disposition is an assignment or a transfer of land, be under a duty to inquire
of the assignor or transferor on whether the spouse or spouses have consented to
that assignment.”432 If the spouse undertaking the disposition deliberately
misleads the lender or, the assignee or transferee by the answers to the inquiries
made, the disposition shall be void at the option of the spouse or spouses who
have not consented to the disposition.433

3.8 LICENCES
A license is that which allows a licensee to enter upon the land of another in
circumstances under which the said entry would amount to trespass to land without
the consequential permission. Essentially, a licence makes lawful that which
would have been in other circumstances unlawful. Section 2 of the Land Act defines
a licence as “a permission given by the Commission in respect of public land or
proprietor in respect of private or community land or a lease which allows the
licensee to do some act in relation to the land or the land comprised in the
lease which would otherwise be a trespass, but does not include an easement or
a profit.” Licence is effectively the smallest estate known to the law of property
in land.

428 Ibid, section 94(1).

429 Ibid, section 97(1).

430 Ibid, section 93(1).

431 Ibid, section 93(2).

432 Ibid, section 93(3).

433 Ibid, section 93(4).

 The Land Act recognises the validity of licences. Under the provisions of
section 20 of the Land Act, the National Land Commission is empowered to “grant
a person, at a prescribed fee, a licence to use unalienated public land for a
period not exceeding five years subject to planning principles as it may
prescribe.” The Commission may serve a notice to quit upon the licensee at any
time after the expiration of nine months from the date of the licence. The
licensee may, with the consent of the Commission, transfer the benefit of a
licence, and the transfer and the consent thereto shall be endorsed on the
licence.434

3.8.1 Common Law Classification of Licenses

Under common law, a license may be either; a contractual licence, a simple or
bare licence, or a licence coupled with interest.

3.8.1.1 Simple/Bare Licence

This licence is given gratuitously and is not coupled with any grant of interest.
It is generally revocable by the licensor at will as was held by the court in
the case of Armstrong v Sheppard & Short Ltd.435 It may be revoked expressly or
by conduct sufficient to indicate revocation of the permission to be present on
anyone’s land.

3.8.1.2 A Contractual Licence

This is a licence for value and is the sort of a licence which is common, for
instance, where one buys a ticket from another so as to view a performance. At
common law, such a licence was revocable at any time but in equity, it is
irrevocable for as long as the parties intended or until terminated by notice
prescribed for such. In Hurst v Picture Theatres Ltd436 the plaintiff entered a
cinematograph theatre belonging to the defendants, paid for a seat, entered the
auditorium, and was shown to a seat. Later, servants of the defendants alleged
that he had not paid, requested him to leave the theatre, and, when he refused,
removed him by force.
In an action by the plaintiff claiming from the defendants damages for assault
and false imprisonment, it was held that, ‘the plaintiff paid his money to enjoy
the sight of a particular spectacle during the time that spectacle lasted. The
license to enter the defendants’ premises was only given to him to enable him to
see that spectacle, and, therefore, the right to enter those premises was a
license coupled with a grant, and was irrevocable. Alternatively, there was a
term implied in the license that it would not be revoked until the spectacle was
ended, and therefore the plaintiff was entitled to succeed’.

3.8.1.3 Licence coupled with interest

A licence coupled with an interest is similar to, an easement, and cannot be
revoked for as long as that interest with which it is coupled subsists.437
Evidently, a licence coupled with an interest is the more superior sort of a
license. Generally, however, regardless of the sort of a licence one holds a
licencee is entitled to quiet possession for the purposes for which he was granted
the entry.

434 Ibid, section 20(2) and 20(4).

435 [1952] 2 QB 384.

436 [1914] 1 KB 1. See also Re Sharp [1980] 1 All ER 198.

437 See Jones and Jones Ltd v Ian Kervillar (1909) 2 Ch. 440.
 The law is that unless a licence is coupled with interest, it cannot be
assigned. A license will at most confer only contractual rights and never
proprietary rights, unless of course, it is coupled with an interest. Thus, the
licensee’s rights are rights in contract and not property. Accordingly, the said
rights and to an extent, duties, only bind the parties to the contract and not
third parties. Thus, a bona fide purchaser for value with or without notice is
not affected nor concerned with a licence pertaining to the land.

3.8.1.4 License by Estoppel

It is an amorphous class of licences as is adequately demonstrated by the decision
of the court in the case if Inwards v Baker,438 where the court stated that if
one is granted a tenancy in circumstances in which the conduct of the parties
show that what was intended was that the occupier should be granted a personal
privilege of occupation and not a tenancy or an interest in land, he will be held
to be a licensee. The facts of this case are that in 1931, the defendant was
considering the building of a bungalow on land which he would have to purchase.
His father, who owned some land, suggested that the defendant should build the
bungalow on his land and make it a little bigger.
The defendant accepted that suggestion and built the bungalow himself, with
some financial assistance from his father, part of which he had repaid. He had
lived in the bungalow ever since. In 1951, the father died. The trustees of his
will, who in fact visited the defendant at the bungalow, took no steps to get
him out of the bungalow until 1963, when they claimed possession of it on the
ground that, at the most, the defendant had a licence to be there which had been
revoked. The Court held that since the defendant had been induced by his father
to build the bungalow on his father’s land, and had expended money for that
purpose in the expectation of being allowed to remain there, equity would not
allow the expectation so created to be defeated, and accordingly, the defendant
was entitled to remain in occupation of the bungalow as against the trustees.
For an estoppel, strictly so-called to arise, there must normally have been a
representation of existing fact, as distinct from a promise de futuro. However,
a representation of existing fact is not an essential element in the type of
equitable estoppel now often described as ‘‘promissory estoppel’’. Courts of
equity in evolving the doctrine of estoppel, are inclined to making a positive
approach to the problem and to viewing the equity as compelling a representor to
‘‘make good’’ his representation. This concept of ‘‘making good’’
representations, fits with the doctrine that when a man, under an expectation
encouraged by a landlord, had expended money on the landlord’s land, a court of
equity would compel the landlord to give effect to the expectation.439
The distinction between a license and a lease is quite elusive. This state
of affairs explains or accounts for the large number of cases calling for judicial
determination. Essentially, a lease is a definite interest in land which can be
sub-let or assigned. A lease also survives the parties. It is an estate in land.
On the other hand, a license cannot be assigned unless it is coupled with an
interest, that is, an easement. Essentially, whether an agreement is a lease or
a licence will depend on the intention of the parties and the circumstances of
each case, including the nature of the suit premises and the terms of the
agreement. Because a licence is insufficient to pass an interest in land, it need
not be made by deed or any other hand, a lease ought to preferably be in writing
and registered. In some instances, it must be in a form prescribed by statutory
provisions. The definition of a licence by Vaughman, CJ in the case of Thomas v

438 [1965] 2 QB 29; See also Runda Coffee Estates Ujagar Singh (1966) EACA 564.

439 See the editorial note in Inwards v Baker [1965] 2 QB 29.

Sorrel440 suffices to identify the beacons which set apart a license from a lease.
The judge elaborated the elements of a licence by observing that“…a dispensation
or license properly passeth no interest nor alters or transfers property or
anything but only makes an action lawful, which without it would have been
unlawful.”

3.9 GIFTS
A gift, in the law of property, is the voluntary transfer of property from one
person (the donor or grantor) to another (the donee or grantee) without full
valuable consideration. In order for a gift to be legally effective, the donor
must have intended to give the gift to the donee (donative intent), and the gift
must actually be delivered to and accepted by the donee.
Gifts can either be lifetime gifts (inter vivos gift, donatio inter vivos) -
a gift of a present or future interest made and delivered in the donor’s lifetime;
or deathbed gifts (gift causa mortis, donatio mortis causa) - a future gift made
in expectation of the donor’s imminent death. A gift causa mortis is not effective
unless the donor actually dies of the impending peril that he had contemplated
when making the gift, that is, these gifts can only be made when the donor is in
a terminable condition. Under the provisions of section 49 of the Land
Registration Act:
A person with a legal incapacity who has been registered as a proprietor of land, a
lease or a charge acquired by way of gift may, repudiate the gift within six months
after the person ceases to be under a legal incapacity, if the person has not already
disposed of the subject-matter, but no such repudiation shall be effective until—
(a) the person has transferred the land, lease or charge to the donor, who is bound
to accept it; and
(b) the transfer has been registered.

3.10 CONCLUSION
This chapter has endeavoured to contextualize proprietary rights and interests
in land. The chapter has demystified property as an interest in a thing, other
than the thing itself and appreciated the possibility of ‘‘gradation’’ of
proprietary interests in the same land, including in the case of customary tenure.
The chapter has then zeroed in on specific proprietary rights, ranging from
freeholds, leasehold, sub-leases, sectional titles, systems of co-ownership of
property, licenses and gifts. The chapter has appreciated that sectional title
is a fairly recent jurisprudence in property law in Kenya and endeavoured to
analyse, in detail, the procedure for acquisition, retention, use and disposal
of sectional title. With the rise of apartments and flats in major cities in
Kenya, this chapter has also endeavoured to examine the regime of sub-leases as
an emerging jurisprudence in property law.
CHAPTER FOUR
CADASTRAL SYSTEMS IN KENYA: FOCUS ON LAND ADJUDICATION AND
TITLING
4.1 INTRODUCTION

440 (1673) Vough. 330 at 351.

In the colonial period, land owned by Africans was construed as vacant land, and
Africans were considered tenants of the Crown.441 Africans lacked strict legal
ownership rights over land they customarily owned; they had only use rights.
Native Land Trust Boards were established to manage African affairs in the so-
called ‘‘reserves.’’442 The reserves were characterised by ethnically defined
administrative units.443 Customary land ownership was characterized by personal,
familial and economic relationships.444 While customary rights remained
unregistered, the colonial authorities established a system which allowed only
for registration of individual title. Mounting land pressure, caused by
relocation, overstocking and heavy soil erosion in the reserves, led to massive
poverty and discontent. Out of the belief that the deterioration of life in the
reserves was due to overpopulation, bad land use and a defective tenure
arrangement, the colonial authorities saw the need in reforming the whole tenure
arrangement.
The 1954 Swynnerton Plan for the Reform of African Land Tenure became the
fundamental blueprint for many of the land tenure reforms. The Swynnerton Plan
was instituted to guide intensified agricultural development in the reserves by
encouraging individualization of tenure and to provide security of tenure through
an indefeasible title. The authorities assumed that native farmers would be
encouraged to invest their labour and profits in the development of their farms
and enable them to offer it as security for credit to develop their farms.445
According to Okoth Ogendo, the essence of the Swynnerton Plan was the
privatization of land through the displacement of indigenous property systems,
relations and modes of production and their replacement with a new legal order
modelled after the 1925 English land law.446 The blueprint, therefore, facilitated
the process of land adjudication, consolidation and registration.447 This chapter
interrogates, in detail, the adjudication process and its efficacy in
landholding, access and use.

4.2 OVERVIEW OF CADASTRAL SYSTEMS IN KENYA: HISTORICAL PERSPECTIVES

Distinct land administration programmes have determined the cadastral systems in
Kenya. In the colonial period, four Ordinances, to wit: the Land Titles Ordinance,
1908; the Crown Lands Ordinance, 1915; the Registration of Titles Ordinance,
1918; and the Land Surveyors Ordinance, 1923, provided the legal framework guided
the criteria for demarcation of plots. The most prominent cadastral systems that
have been witnessed in Kenya include:

4.2.1 Land Adjudication at the Coast

441 Okoth-Ogendo HWO (1991), Tenants of the Crown: Evolution of Agrarian Law and Institutions in Kenya,
ACTS Press.

442 Wanjala, S (2002), Land and Resource Tenure, Policies and Laws: A perspective from East Africa, a paper
presented at the Pan-African Programme on Land and Resources Rights (PAPLAR) inaugural workshop, Cairo, Egypt
on 25-26 March 2002.

443 Berman, B. (1990), Control and Crisis in Colonial Kenya: the Dialectic of Domination, James Currey
Publishers, page 189.

444 Leo C. (1984), Land and Class in Kenya, University of Toronto Press, Chapter 2.

445 Swynnerton, R. J. W. (1953). Plans for intensified agricultural development. Report to the Ministry of
Agriculture, Kenya.

446 H.W.O. Okoth Ogendo, the Perils of Land Tenure Reform: The Case of Kenya, available at
http://fimbo.org/attachments/059_The%20perils%20of%20land%20tenure%20reform-%20the%20case%20of%20Kenya.pdf,
accessed last on 31 January 2012.

447 Mackenzie, F. (1998), Land, Ecology and Resistance in Kenya, 1880–1952, Portsmouth: Heinemann.
The Land Titles Ordinance, 1908 made provision for and required all persons who
claimed land or interest in land at the coast to come forward and prove their
titles. A Certificate of Title was granted by a Land Court to those persons that
proved their claims. Any unclaimed land or land in respect of which the claims
were rejected was deemed to be Crown land and available for alienation. The
Ordinance provided for a surveyor to demarcate and define the boundaries of both
adjudicated and unclaimed land as directed by the Recorder of Titles. Surveys
were done by compass and chain with connections to very few control points.
Indigenous Africans were excluded from launching any claims to the land they
occupied. Many areas were not covered by the adjudication, thereby allowing them
to be classified as government land.

4.2.2 Landholding in the White Highlands

The Crown Lands Ordinance, 1915, prescribed the policy and procedures of
alienating Crown land to white settlers. Land was allocated through direct grants
by the Governor or sold by public auction, unless the Governor ordered otherwise.
Initially, it was mandatory for the land to have been surveyed before alienation.
The procedure was changed to introduce a system where successful applicants were
authorized through a letter of allotment to occupy and develop the land pending
survey and issuance of title deeds. Disposal of land through auction was
discontinued. A Land Board was created to advice the Governor on application for
and proposed disposal or grants of agricultural land. All Crown grants were to
be compulsorily registered and survey was demanded before registration. A survey
deed plan was attached to every Crown grant. Surveys were undertaken under the
provisions of Survey Ordinance, while registration was effected under the
provisions of the Registration of Titles Ordinance. The two Ordinances provided
for fixed boundaries ,whereby land was demarcated by permanent survey marks, and
the position of the survey marks accurately determined by mathematical
computations.

4.2.3 Land Consolidation and Adjudication

Land consolidation and adjudication was intended to transform trust land areas
from customary land tenure to statutory freehold tenure. Land consolidation
consisted of first, ascertainment of what land each person was entitled to and
secondly, allocating, in a planned layout, a new single plot of land equivalent
to the plot or to the aggregate of the plot. The process of consolidation,
therefore, involved fragment gathering and preparation of record of existing
rights; preparation of an allocation plan showing the intended arrangements of
consolidated holdings; and the demarcation on the ground of the boundaries as
reflected on the allocation plan. Maps known as demarcation maps were then
prepared by tracing the allocation plans to support registration of title. In a
bid to improve on the accuracy of demarcation maps, a process known as “re-fly”
was initiated and it involved requesting the proprietors of the consolidated
lands to plant hedges on their boundaries. Once the hedges grew and were visible,
aerial photography would be taken and from the photographs, maps were produced
showing the boundaries. Ground survey methods were used to mark and plot the
missing boundaries. It is such maps that are popularly known as registry index
maps.
In a bid to accelerate land consolidation, the government resorted to
ascertainment of land rights by way of land adjudication. In land adjudication,
mapping techniques were designed to produce maps to support the system. Aerial
photography was taken and the photographs enlarged up to five times at the scale
of 1:2500. The boundaries that were not air visible were plotted on the
photographs by estimation. Maps, known as preliminary index diagrams, were
produced by making direct tracing of boundaries as depicted on enlarged
photographs.
 In group ranch areas, boundaries were adjudicated to follow natural features
where possible. The boundaries were identified on topographical sheets. Maps were
then produced by direct tracing of the boundaries as they appear on the
topographical sheets.

4.2.4 The Case for Settlement Schemes

In a bid to alleviate landlessness amongst indigenous communities, the colonial
government settlement schemes within the White Highlands.448 The surveys systems
were developed to support the ‘‘transfer’’ land ‘‘ownership’’. The Survey
Department would produce topographical maps on which Planning Officers of the
Department of Agriculture were able to produce plots and sample layouts. After
the approval of the layout plans, the soil conservation units of the Department
of Agriculture transformed the plots to the ground and settlers were authorized
to occupy the plots. Once the scheme was fully demarcated, that was, all the
plots having physical boundaries, the area is title mapped using photogrammetric
methods. Registry index maps were then produced from the photogrammetric machine
plots to support registration. In other schemes, maps were produced by demarcation
and survey of plots using ground survey methods.

4.2.5 The Case for Large Scale Farms and Group Ranches
There were instances when indigenous communities organised themselves into
groups, formed companies or co-operatives and bought farms in the White Highlands
from foreigners. Such farms were initially managed as single entities. However,
this changed and the large scale farms were sub-divided to their members or
shareholders. Group ranches that had been adjudicated and incorporated were to
be dissolved and land distributed to individual group ranch members. The sub-
division surveys were carried out by ground survey methods and maps prepared by
tracing the demarcation sheets. Emphasis was laid on the physical demarcation of
the plots on the ground and the necessity of the proprietors to hedge their
parcels of land as the demarcation exercise was being completed.

4.2.6 The Case for Town Plots

Disposal of plots within townships was mainly guided by the Crown Land Ordinance,
1915, with the aim of coordinating the orderly development for residential,
commercial, industrial and special purposes. Land was initially disposed of
through grants by the Governor or though auctions after the land had been planned,
surveyed and advertised through gazettement. Alienation of town plots by way of
auctions was, however, later abandoned in preference to allocation of the plots
through selection committees chaired by respective Provincial Commissioners or
District Commissioners of the area. Survey of the plots was executed under the
provisions of the Survey Act that demands that survey marks defining boundaries
be determined by accurate surveys and their position be derived using mathematical
computations.

4.2.7 Conceptualising Land Rights under the Colonial Regime

The colonial land policy began when Kenya became a Crown colony in 1920 and all
the land was assumed to belong to the Crown. This led to the acquisition of
African lands through the Crown Land Ordinance of 1915, the imposition of English
tenure through individualization and the transformation of customary land tenure
systems. A major land tenure reform issue in Kenya and the rest of sub- Saharan
Africa has been the relative merit of indigenous customary tenure systems and
those based on western concepts involving the registration of individual

448 These included the One Million Acre; Shirika; Haraka; Sugar Settlement Organisation; Ol Kalau Salient;
Magarini; and Lake Kenyatta Settlement Schemes.
ownership.449 The East African Order-In-Council had a ‘guidance’ clause that
safeguarded native law and custom. It provided that: “In all cases, civil and
criminal, to which natives are parties, every court shall … be guided by native
law so far as it is applicable and is not repugnant to justice and morality or
inconsistent with any Order-In-Council ….” The introduction of the
‘‘repugnance’’ clause by the British was used to test which rules of native law
would be reserved.
Under colonialism, the functions of land administration structures were quite
limited. These were mainly juridical and cadastral. The judicial function was
designed to ensure that property rights granted or created under imposed foreign
law were clearly defined and their boundaries maintained. For this reason, land
registry systems were established and operated on the basis of deeds or title
registration. Appropriate mechanisms were further put therein to facilitate the
delivery of land rights services to the limited number of individuals and
organizations granted rights under that regime. The concern therefore was to
ensure that land rights so granted were secure or ascertainable, transactions in
their documented on a routine basis, and conflicts between grantees of land
rights efficiently managed.450
In 1932, the Kenya Land Commission was appointed and was charged with the
responsibility of giving a sense of security to the African population by settling
their claims to land and by assurance of sufficient land for their future needs,
and to the European, by defining the area in which he was to enjoy a privileged
position.451 This comprehensive five-year plan to intensify the development of
African agriculture in Kenya was compiled by RJM Swynnerton. Its main aims were
to multiply by ten times the average cash income of as many as possible of the
600,000 African families in the lands of high rainfall, and to increase greatly
the value of annual exportable surplus cattle from African lands.452
The Swynnerton Plan aimed to create individual freehold rights as an inducement
to produce successful black commercial farming. Though the Swynnerton Plan was
initiated to counter the rural insurgency - Mau Mau - the logic behind these
schemes exemplifies a long-held tradition in studies of rural development where
a “safe and sound” investment is regarded as that which concentrates on building
a class of “progressive farmers” to the exclusion of the “poor and less able”
farmers.453
The policy of individualization through the process of land rights and the
subsequent registration of absolute titles were pursued vigorously. The
Registered Land Act (Repealed) further enhanced the individualization of tenure
among the indigenous communities.

4.3 PROCESS OF ADJUDICATION

449 Jemaiyo Chabeda, ‘How Do Customary Practices Enshrined in Statutory Law Undermine Women’s Access and
Rights to Land? A Case Study of Yaw Pachi, Siaya District, Kenya’. A research report submitted to the Faculty
of Humanities, University of Witwatersrand, Johannesburg in partial fulfilment of the requirements of the
Masters of Arts degree in Development Studies.

450 Okoth-Ogendo, HWO, the last colonial question: an essay in the pathology of land administration systems
in Africa.

451 Jemaiyo Chabeda, How Do Customary Practices Enshrined in Statutory Law Undermine Women’s Access and
Rights to Land? A Case Study of Yaw Pachi, Siaya District, Kenya.

452 Blundell M, 1962. African Land Development in Kenya 1946-1962. Published by the Ministry of Agriculture
and animal husbandry and water resources in Kenya.

453 Kariuki S, 2004. ‘Failing to learn from failed programmes: South Africa’s communal land rights Act’
(CLRB 2003). Vienna Journal of African Studies.
Adjudication is the confirming of existing rights in land while registration is
the final step where the parcels of land already adjudicated are entered into a
register and land certificate is issued in the name which appears in the register.
The processes and procedures of land adjudication, consolidation and registration
of rights were intended to extinguish customary land tenure and replace them
with individual exclusive rights.454
In Kenya, under the independence Constitution, the process of land adjudication
was primarily governed by the Land Adjudication Act.455 Land adjudication is
aimed at providing for the ascertainment and recording of rights and interests
in Trust land.456 The processes and procedures of land adjudication, consolidation
and registration of rights were intended to extinguish customary land tenure and
replace them with individual exclusive rights. The Minister (now Cabinet
Secretary) was empowered to appoint adjudication officers to be in charge of an
adjudication area. The adjudication officers in turn appointed demarcation
officers, survey officers and recording officers to be in charge of demarcating,
surveying and recording interests within an adjudication area.457 It was the duty
of the adjudication officer to establish adjudication sections within its
adjudication area.458
In addition, the adjudication officer determined claims relating to interests
in land within the adjudication area.459 Any person with interest in land within
an adjudication section might claim to the recording officer and point out his
boundaries to the demarcation officer.460The claims were considered by the
demarcation officer, who were required to investigate the claim and prepare, in
duplicate, a form in respect of every parcel shown in the demarcation map.461
Whether there were conflicting claims in respect of a parcel of land, the
recording officer referred the dispute to the adjudication committee for
determination.
Other administrative units responsible involved in the process of adjudication
included adjudication committee appointed by the adjudication officer in
consultation with the District Commissioner; and arbitration board appointed by
the Provincial Commissioner.462 The adjudication committee adjudicated upon, and
decided in accordance with recognized customary law, any question referred to it
by the demarcation officer or recording officer. The committee also advised the
adjudication officer or any officer subordinate to him on any question of
recognized customary law for which such an officer has sought guidance of the
committee.463 Where an adjudication committee was unable to reach a determination

454 National Land Policy, section 151.

455 Chapter 284.

456 See the preamble.

457 Land Adjudication Act, section 4(1).

458 Ibid, section 5.

459 Ibid, section 10.

460 Ibid, section 13.

461 Ibid, section 19.

462 Ibid, sections 6 and 7.

463 Ibid, section 20.

on an issue before it, or a party is aggrieved by its decision, it refers the
dispute to the arbitration board for determination.464
In terms of process of adjudication, what has changed under the new legislative
framework on land is the institutional management of the adjudication process.
It is the mandate of the National Land Commission under article 62(2) of the
Constitution of Kenya to administer unalienated government land held by County
Government in trust for the people resident of that County. Justice Angote in
the case of Mohamed Ahmed Khalid (Chairman) and others v Director of Land
Adjudication and others465 elucidates the change in adjudication process under
the Constitution of Kenya 2010 as follows:
The law that was applicable for the ascertainment of land rights and interest over
Trust land is the Land Adjudication Act, Chapter 284. The said Act has an elaborate
mechanism of appeal in the event an individual is aggrieved by the decisions of the
Land Adjudication and Settlement Officer, the Land Adjudication Committee, the Land
Arbitration Board and the Minister’s Appeal Committee. However, with the promulgation
of the Constitution in 2010 and the establishment of the National Land Commission
vide the constitutional provisions, the National Land Act, 2012 and the Land Act,
2012, all the functions of the Land Adjudication and Settlement department which was
within the Ministry of Lands have been transferred to the National Land Commission.
The management and implementation of settlement programmes have also been transferred
from the Ministry of Lands to the National Land Commission. The law which previously
governed the setting up of settlement schemes was the Agriculture Act, Chapter 318.
Under section 168(3) of the said Act, the Director of Land Adjudication and Settlement
was appointed as the administrator of Agricultural Settlement Fund by the Settlement
Fund Trustees. The Director of Land Adjudication and Settlement therefore wore two
hats; he was in charge of the adjudication and consolidation of land rights and
interests for Trust land pursuant to the provisions of the Land Adjudication Act and
was also authorised to establish settlement schemes pursuant to the provisions of the
Agriculture Act. The Director of Land Adjudication and Settlement was the head of the
land adjudication and settlement. He is the one who oversaw (before the creation of
the National Land Commission in the year 2012) the effective implementation of the
land adjudication and settlement before the promulgation of the Constitution in August
2010. Pursuant to the provisions of section 29(3) of the Land Adjudication Act, Chapter
284, the Director is mandated to sign certificates of finality upon the completion of
the adjudication process and forward the adjudication register to the Chief Land
Registrar for registration. Indeed, before the Director signs certificates of
finality, the Land Adjudication Act provides that the adjudication register must be
published which shall be followed with the hearing, determination and implementation
of objections in respect to the adjudication register. The manner in which such
publication should be done is provided for at section 31 of the Act. The Act, at
sections 6 and 9 mandates the Land Adjudication Committee to determine claims in land
in accordance with African Customary Law. The Land Arbitration Board hears appeals
from the Land Adjudication Committee…

4.3. Adjudication Register

Recording officers prepare an adjudication record. In preparing the record, the
adjudication officer must be satisfied that a person or group has a customary
right of ownership over the land in issue.466 The adjudication record specifies
the number of the parcel as shown on the demarcation map and its approximate
area; particulars of the owner; any restrictions in dealing with land; any details
relating to setting apart of the land; the fact that the land remains Trust land

464 Ibid, section 21.

465 Malindi ELCC number 3 of 2013.

466 Ibid, section 23.

where the land is owned by county council.467 Where a group is recorded as the
owner of land, the adjudication officer is enjoined to advise the group to apply
for group representatives to be incorporated under the Land (Group
Representatives) Act; and notify the Registrar of Group Representatives that the
group has been so advised. The demarcation map and the adjudication record
collectively constitute the adjudication register.468
Once the adjudication register has been completed, the adjudication officer
certifies the adjudication record and the demarcation map and delivers the
duplicate of the adjudication record to the Director of Land Adjudication;
displays the original of the adjudication register for inspection at a convenient
place within the adjudication section; and issues sixty days’ notice for
inspection of the adjudication register.469 Any person may object to the
adjudication register within the sixty days of the notification and the
adjudication officer is required to deal with such objection.470 Appeals from the
decision of the adjudication officer lie with the Minister (now Cabinet
Secretary).471 The adjudication officer is then expected to finalise the
adjudication register and forward the register to the Chief Land Registrar
together with a list of appeals. Upon receipt of the register, the Chief Land
Registrar causes registration to be effected in accordance with the adjudication
register.472

4.3.2 Instruments of Land Adjudication

Suffice to state, unrecorded land rights held under customary tenure are
determined after a systematic adjudication. The adjudication process is followed
by demarcation, survey, production of registry index maps and issue of title.

4.3.3 Surveying
Surveying is the scientific process of delimiting boundaries. It is concerned
with the charting of land to accurately define its boundaries for purposes of
obtaining a certificate of title to and providing information about that land.473
Boundaries can either be fixed or general. Fixed boundaries are determined by
the Director of Surveys and consist of coordinated and concreted markers at
turning points of rectilinear boundaries.474 Survey plans and other documentation
must be examined and approved by the Director of Surveys. In land registered
under the Registration of Titles Act, the surveyor prepares deed plans with
respect to each plot, to be signed and sealed by the Director of Surveys, and
the deed plan is then attached to the registration document.
Where land is registered under the Registered Land Act (Repealed), Registry
Index Maps are used to support the registration of plots. General boundaries are
associated with land registered under the Registered Land Act (Repealed).

467 Ibid.

468 Ibid, section 24.

469 Ibid, section 25.

470 Ibid, section 27.

471
Ibid, section 29.

472 Ibid, section 28..

473 National Land Policy, article 148.

474 See Jasper N. Mwenda (2001), Spatial Information in Land Tenure Reform with Special Reference to Kenya,
Paper presented at the International Conference on Spatial Information for Sustainable Development, Nairobi,
Kenya on 2-5 October 2001.
Registration is backed by a registry index map and is common in areas where land
is converted from communal to individual or group tenure. In settlement schemes,
for instance, the original farms are surveyed with fixed boundaries, whereas the
smaller resulting parcels are surveyed with general boundaries, principally to
reduce costs and speed up the process.

4.3.4 Registry Index Maps

Registry index maps are maintained by the Director of Surveys and are used in
land registries to support issuance of titles. The Registered Land (Repealed)
Act allows for the use of interim registry index maps for registration of land
prior to preparation of more accurate maps. Interim Registry index maps
principally use boundary features for general boundaries.475 Whereas the
approximate scale is indicated on the interim registry index map sheets,
indication of grid line on the sheets is avoided, thereby facilitating incidences
of boundary disputes. Poor maintenance of boundary disputes compound incidences
of such disputes.

4.4 CONCLUSION
The land adjudication process has witnessed a slow pace of implementation as a
result of legislative and institutional constraints. There is need to review the
laws related to land adjudication to make the process more transparent,
accountable as well as efficient. The process of adjudication so adopted must
as a matter of principle recognize existing communal and other overlapping rights,
provide sound dispute resolution systems to protect those concerned as well as
provide for setting aside of land for public utility.
The Land Adjudication Act and the Land Consolidation Act require to be amended
as well as merged so as to increase the pace of implementation of the adjudication
process in the remaining parts of the country. The new Act should allow for both
the appointment of community leaders to the Board as well as for the registration
of parcels not affected by objections to the adjudication register upon expiry
of the stipulated inspection period of the register.
As long as land remains central to development in Kenya, any hope of meaningful
economic recovery, poverty reduction and restoration of political stability in
the region hangs largely on how and when the land question will be resolved. A
fragmentary approach to land reform is unlikely to resolve that question. Reform
must be directed at the land sector as a whole. To assume, therefore, that a
programme of land reform can be successfully undertaken and operationalized
without specific focus on land administration is, therefore, a fundamental error
of both design and policy-making.
In Kenya, the process of registering land is manual and not computerized. The
registries have a paper filing system. This consequently creates room for
manipulation and corruption. Some households have not bothered to collect their
titles, the existence of which is of little interest to them. The fact that
Kenya’s title registries are hugely out of date is often taken as an indication
that this is still the case across the country.476 Though the Ministry of Lands
has rolled out a pilot electronic registration, there is need to ensure that the
same is rolled across the country to enhance the process of land registration
and adjudication.

475 Malaku, G.C. (1996), ‘Concepts for Improving property Mapping in Kenya,’ in South African Journal of
Surveying and Mapping, Vol. 23, Part 4, pp. 211-216.

476 Okoth-Ogendo, H. W. O, 1982a. Property Systems and Social Organization on the Relative Position of
Women under Indigenous and Received Law. In The Individual under AfricanLaw pp. 18-29. N.P, Takira Mbudde
(Ed.). Harare: All African Law Conference.
 The Environment and Land Court Act should address the duration in which a case
can take to cure the problem of cases taking too long while the aggrieved parties
continue to suffer before determination. Both parties should have the trial begun
and concluded without unreasonable delay. Given that this will be a court of
original jurisdiction, for the cases to be finalized in the shortest time. Also
the Act should provide a mechanism for ensuring that all records and court
proceeding are safely kept and documented.477 Also formalities relating to the
proceedings, including commencement of the proceedings at the ELC Court should
be kept to the minimum, and in particular that the Court shall if necessary,
entertain proceedings on the basis of informal documentation.
Repeal of the Land Disputes Tribunal Act without more will put enormous
pressure on the Environment and Land Court.478 This provision should be
accompanied by a suitable amendment to the Magistrates Court Act enabling
subordinate courts to deal with a defined class of land cases. If land rights
are actually able to empower vulnerable groups and communities, they have to be
conceived in a way that is understandable and acceptable to these communities,
while also conforming to international standards. These standards require that
indigenous peoples’ rights to their traditionally owned lands, territories and
resources be regularised in accordance with their customary laws and tenure
systems.

CHAPTER FIVE

LAND REGISTRATION
5.1 INTRODUCTION
Land registration may be defined as the keeping of public records of all
transactions affecting land.479 An effective land registration system must be
accurate, complete, reliable and up-to-date. It should cover all land, urban and
rural, customary, private and public, without distinction between them in the
way of registration. This chapter analyses the concept of land registration, its
importance and highlights some of the impediments that have hindered an effective
registration regime in Kenya. The chapter appreciates that in Kenya, there exists
two systems of registration – registration of title and registration of deeds.
While the deed system of registration predates title registration, its relevance
has largely fallen into disuse. The chapter also analyses the various title
documents obtainable under various registration regimes. It takes the reader
right into the land registry and examines, step by step, the procedure to be
followed inside the land registry in registering a document affecting interest
in land. The chapter appreciates that there are emerging areas of land
registration, to wit, sectional titles and sub-leases and examines, in detail,
each of the registration regimes.

5.2 PURPOSE OF REGISTRATION

Land registration is necessary for several but distinct purposes.480 In modern
society, land registration is a tool for protecting rights to improve land tenure

477 Clause 11 of Act.

478 Environment and Land Court Act, section 31.

479 Smokin C. Wanjala, Sources of Land Law in Kenya, page 4.

480 See for instance, P.L. Onalo (1986), Land Law and Conveyancing in Kenya, Nairobi: Heinemann Kenya Ltd,
pp. 176–180, who argues that the aim of registration is to achieve security of tenure, reduce unnecessary
security. The change of rights to land from one person to another through a
process called conveyancing is facilitated by land registration. Land
registration is therefore a tool for land tenure security. The process is also
a panacea for protection of land rights, provision of food security, supporting
economic development and actualising land reform. Land registration facilitates
dealings in land in accordance with the prevailing social and cultural
circumstances. For instance, for one to obtain credit by using land as collateral,
the borrower’s right to the land must be clear and unambiguous. Ownership of such
rights can only be demonstrated, not by physical possession of the land, but by
registration of such rights at the Ministry of Lands. Property rights must be
formalised, that is, embodied in universally obtainable, standardised instruments
of exchange that are registered in particular land registries.
Security of tenure has been guaranteed in various land laws in Kenya. Section
26 of the Land Registration Act construes the holder of a Certificate of Title
issued under the Act as the conclusive owner of the parcel of land, unless the
holder of the title document fraudulently obtained the certificate of title.481
Previously, even in incidences of fraud, or erroneous registration of the title
to land under the Registration of Titles Act (Repealed), the holder of the title
would not be deprived of the title, and instead, the aggrieved party will recover
damages.482 Thus, the state guaranteed title registered under the Registration of
Titles Act. Under the Registered Land Act, (Repealed) the security of tenure was
guaranteed in sections 27 and 28.483 The care taken in admitting land data to be
admitted in new land registration system has a bearing on the reliability of the
new system. This necessitates the need to verify the data of every land
transaction individually.
Secondly, land registration protects the rights in land. This it does by
improving the security of land tenure. That is, the assurance of continuing
access to and use of land through a formalized tenure system. The registration
provides proof of ownership of rights to the land and real property, as well as
proof of the size and location of the immovable property. Dekker posits that
land registration answers the question of what, who, how, where and when land is
owned.484 The underlying principles that enable land registration process protect
the rights of the parties concerned are the publicity of the transfer of interests
in land, clarity and lack of ambiguity in security of title to land. Title to
land properly so acquired forms the basis of loans when using the land collateral,
mortgages for land development, and facilitates dealings in land, thereby
optimizing land use.
Thirdly, land registration facilitates levying of land taxes by the government.
In Kenya, payment of land rent and stamp duty depends on the value of the land
as quite often revealed in the purchase price. Land rate is charged on the basis
of the size and value of the land. Aspects of land registration such as size of
land and proprietorship of land are, therefore, quite instrumental in determining
the amount of tax and the incidence of tax. While tracing the origin of the use
of land records for tax purposes, Catherine Farvacque and Patrick Mc Auslan state
as follows:

litigation, prevent refragmentation of land into valueless pieces of land, administer loan system and enable
easy and effective conveyance.

481 Land Registration Act number 3 of 2012, section 26.

482 Registration of Title (Repealed) Act, section 24.

483 See Registered Land (Repealed) Act (Chapter 300) Laws of Kenya, sections 27 and 28.

484 HAL Dekker (2003), Land Reform, Land Tenure Security and Land Registration, Aldershot: Ashgate
Publishing Limited, page 137.
 Land records for tax purposes dates back to ancient times. Historians of ancient Egypt
have shown that as early as 3400 B.C., measures of length were in regular use and
that a cadastral record was in existence by about 3000 B.C. and of course the Domesday
book in England compiled 20 years after the Normans had defeated the Saxons at the
battle of Hastings in 1066 is a perfect example of an early comprehensive attempt to
set an inventory of national resources for fiscal purposes… 485
Fourthly, land registration enables the government to control the use of
resources. Land planning, which is a government function, relies on registration
system. In agricultural controlled areas, the government makes use of land
registration systems to determine economically viable land sizes and to control
transfers that would be uneconomically viable.486 Section 29 of the Physical
Planning Act vests in each County Government the power to enact legislation to
regulate zoning in respect of use and density of development.487 Approval of all
developments in the County is done by the County Government. It is the County
Government that supervises implementation of approved physical development plans;
and the County Government enacts legislation to regulate zoning on the use and
density of physical development plans. One of the functions of County Governments
as expressed in paragraph 8, part 2 of the fourth schedule to the Constitution
of Kenya, is the regulation of county planning and development, including housing
development
Under the provisions of section 111 of the County Governments Act, each County
Government is enjoined to have city or municipal land use plans; city or municipal
building and zoning plans; and city or urban area building and zoning plans. City
and municipal plans are the instruments for development facilitation and
development control within the respective city or municipality.488 Section 111(4)
of the County Governments Act mandatorily provides that city or municipal land
use plans bind on all entities and private citizens operating within that
particular city or municipality. Exercise of the foregoing powers is only tenable
where land is registered within the County Government and in the name of a
particular proprietor.
The importance of land registration is summarized by Lemel Harold by observing
that it:
“documented titles (1) publicly and officially associate specific pieces of land;
(2) precisely define a property’s physical boundaries, thereby reducing potential

485 Catherine Farvacque and Patrick McAuslan (1992), Reforming Urban Land Policies and Institutions in
Developing Countries. Washington D.C.: The International Bank for Reconstruction and Development/the World
Bank Publication, page 58.

486 See Land Control Act (Chapter 302) Laws of Kenya section 6(1) thereof states: “each of the following
transactions -(a) the sale, transfer, lease, mortgage, exchange, partition or other disposal of or dealing
with any agricultural land which is situated within a land control area;(b) the division of any such agricultural
land into two or more parcels to be held under separate titles, other than the division of an area of less
than twenty acres into plots in an area to which the Development and Use of Land (Planning) Regulations, 1961
for the time being apply;(c) the issue, sale, transfer, mortgage or any other disposal of or dealing with any
share in a private company or co-operative society which for the time being owns agricultural land situated
within a land control area, is void for all purposes unless the land control board for the land control area
or division in which the land is situated has given its consent in respect of that transaction in accordance
with this Act.”

487 Physical Planning Act, section 29 states, “29. Subject to the provisions of this Act, each local
authority shall have the power (a) to prohibit or control the use and development of land and buildings in the
interests of proper and orderly development of its area; (b) to control or prohibit the subdivision of land or
existing plots into smaller areas; (c) to consider and approve all development applications and grant all
development permissions; (d) to ensure the proper execution and implementation of approved physical development
plans; (e) to formulate by-laws to regulate zoning in respect of use and density of development; and (f) to
reserve and maintain all the land planned for open spaces, parks, urban forests and green belts in accordance
with the approved physical development plan.”

488 County Governments Act, number 17 of 2012, section 111(2).

 disputes; and (3) carry the implicit backing of the state against any challenges to
granted property rights.”489

5.3 IDENTIFICATION OF REGISTRATION DOCUMENTS

There are two systems of registration in Kenya: registration of deed and
registration of titles. A deed registration is a record of an isolated transaction
and is an evidence that the particular transaction took place; it is not of
itself proof of legal right of the parties to carry out the transaction, thus
not an evidence of its legality.490 In a loose scenario, where parties to an
agreement deem that they intend to make public their agreement, they may approach
the Registrar of Documents to record the agreement between them. The agreement
is then registered in the register of deeds.491
Registration of title on the other hand is an authoritative record kept in a
public office. It records the rights to clearly defined units of land as vested
for the time being in some particular person or body, and limitations, if any,
to which the rights are held.492 Information relating to a title document to be
supplied is statutorily circumscribed. Registered Land (Repealed) Act. Prudence
requires that a party recognizes registration system or regime, at first sight,
under which a land transaction document or a title document is issued and the
use of such a document or title.
The deed system of registration was governed by Land Titles Act (Repealed),
the Registration of Documents Act, and under the independence constitutional
framework. It was also governed by the Government Lands Act (Repealed). The
Registration of Documents Act493 traces its origin from the 1902 Registration of
Documents Ordinance. The Ordinance set up registries in Nairobi, Mombasa and
Malindi to facilitate registration of documents relating to transactions
involving alienated Crown land.494 Currently, only registries in Nairobi and
Mombasa exist. The documents registered under the Act pertained to land which
was the subject of either the 999 agricultural land leases or which had been
converted into freeholds by the Commissioner for Lands pursuant to his powers
under the 1915 Crown Land Ordinance.495 All surveys and consequent registration
under the Act (then, an Ordinance) were based on the claims of ownership of land
submitted by the residents of the Coast to the Recorder of Titles.
Upon independence, the application of the Act was limited to only un-
adjudicated claims at the Coast. Even then, the application of the Act was dealt

489 Lemel Harold (1990), “Land Titling: Conceptual, Emphirical and Policy Issues,” in Land Use Policy, page
35. See also Roy L. Prosterman and Timothy M. Hanstad (1999), Legal Impediments to Effective Rural Land
Relations in Eastern Europe and Eastern Asia: A comparative Perspective, Washington D.C.: The International
Bank for Reconstruction and Development/the World Bank Publication, page 168, who argue that: “almost all
commentators agree that that title registration is superior to all present systems of title protection based
upon registration of deeds land recordation. Title registration makes land titles more reliable, and is simpler,
more logical and less costly…”

490 Republic of Kenya, Report of the Mission on Land Consolidation and Registration in Kenya, 1965-1966.
See also Smokin C. Wanjala, Sources of Land Law in Kenya, page 5, who states that “by registration of deeds,
we mean a system whereby written agreements between two or more people are registered in form of a public
record.

491 Wanjala, supra, page 6.

492
Ibid.

493 Chapter 285, Laws of Kenya.

494 SC Wanjala (ed) (2000), Essays on Land Law: The Reform Debate in Kenya, Nairobi: Faculty of Law,
University of Nairobi Publication, pp. 35-87.

495 TO Ojienda and A.D.O. Rachier (2001), Conveyancing Theory & Practice, Eldoret: Faculty of Law, Moi
University Publication, page 18.
a further blow as major parts of the Register kept pursuant to its provisions
were converted to either the Registered Land Act (Repealed) or Registration of
Titles Act (Repealed).496 It is for this reason that Wanjala, while commenting
on the diminishing usefulness of the Registration of Documents Act, states:
It is still used in Kenya for the voluntary registration of wills during the lifetime
of the testator, deed polls dealing with change of names, settlements, registration
of architect’s plans etc. But for all practical purposes, this law has long ceased to
operate as the basis for a land registration system.497
The Land Titles Act (Repealed) was enacted in 1908 to facilitate alienation of
Crown land at the Coast, particularly with a view to distinguish between private
land and Crown land within the ten- mile coastal strip. Whereas the word ‘title’
forms part of the name of the Act, the Act did not deal with a system of
registration of titles to land, but a deed system of registration. The register
kept under the Act was not conclusive evidence of a transaction affecting the
piece of land and there was no government guarantee on the accuracy of the
register. Thus, anyone suffering loss as a result of the inaccuracy of the
register kept under the Act could not claim to be compensated by government. The
Registrar under the Act was called a Recorder of Titles. Individuals who
successfully claimed private land under the Act were issued with certificates of
ownership giving freehold title or certificate of mortgage or interest covering
leasehold, depending on the nature of title adjudicated.498
Under the independence Constitution, title to land, in Kenya, was registered
under the Registered Land Act (Repealed) or Registration of Titles Act. (Repealed)
Two registries were maintained under the Registration of Titles (Repealed) Act,
being, Coast titles, maintained at the Mombasa Registry, and upcountry titles
maintained at the Nairobi Registry. Coast titles are prefixed “C.R. No….” and
up-country titles are prefixed “I.R. No….” Where a title was issued under Trust
Lands Act in township area and registered under the Registration of Titles Act,
it was prefixed “I.R.N. No….” Title documents for Plots which were alienated or
converted from Government Lands Act (Repealed) or Land Titles Act (Repealed) to
Registration of Titles Act (Repealed) were known as grants, endorsed with the
index number of the title. Where there was a subdivision of land in respect of
which an original grant was issued, a certificate of title in respect of a
freehold was issued,499 or a lease in respect of leasehold was issued.
It will be remembered that the enactment of the Registered Land Act (Repealed)
was intended to bring the pre-existing land registration regimes under it. For
instance, where a parcel of land in respect of land to which a grant or certificate
of title was already issued under the Registration of Titles Act, (Repealed)
such registration might be deemed to have been completed under the Registered
Land Act (Repealed), in which case the grant or certificate of title would be
construed to be a title deed or certificate of lease issued under the Registered
Land Act (Repealed).500 The Registration of Titles Act (Repealed) would then cease
to apply in respect of that parcel of land. Where title to a parcel of land
comprised a register kept under the Government Lands (Repealed) Act or Land
Titles Act (Repealed), such title might be brought under the Registered Land Act

496 Ibid.

497 SC Wanjala (2000), ‘Problems of Land Registration and Titling in Kenya: Administrative and Political
Pitfalls and their Possible Solutions,’ in Essays on Land Law: the Reform Debate in Kenya, Nairobi: Faculty of
Law, University of Nairobi, page 87.

498 TO Ojienda and ADO Rachier (2001), Conveyancing Theory & Practice, Eldoret: Faculty of Law, Moi
University Publication, page 19.

499 See PL Onalo (1986), Land Law and Conveyancing in Kenya, Nairobi: Heinemann Kenya Ltd, pp. 176 – 181.

500 See section 12 of the Registered Land Act (Repealed).

(Repealed), in which case the affected proprietor, upon being notified and if he
so requests, was issued with a title deed or Certificate of Lease issued under
the Registered Land Act (Repealed).
The provisions of Government Lands Act (Repealed) and Land Titles Act
(Repealed) relating to registration of the title would in effect cease to apply
to such a parcel of land.501 Another characteristic of registration of title under
the Registered Land Act (Repealed) was that its land registries were decentralised
into registration districts.502 Unlike the Government Lands Act (Repealed), Land
Titles Act (Repealed) and Registration of Titles Act (Repealed) which used a
system of deed plan, the Registered Land Act (Repealed) used registry index maps
prepared by the relevant Director of Survey in a registration district.503 Title
documents under the Registered Land Act (Repealed) were title deed or land
certificate for freehold tenure or Certificate of Lease for leasehold tenure, or
a certificate of sectional property if it is a property under the Sectional
Properties Act. It is worth noting the observation made by Wanjala on the
distinction of the title documents, who states as follows:
Until recently, there were no title deeds under the RLA; instead, a holder of a
freehold estate was granted a land certificate, while a certificate of lease was
granted to a holder of a leasehold interest. The title deed reproduces what is noted
in the register, while the land certificate is merely prima facie evidence that the
person named on it is a holder of a freehold title to the land. The title deed
therefore gives more information regarding a particular piece of land.504
It is also worth noting that under the Registered Land Act (Repealed) registration
system, conclusive evidence of title was premised on the register. Land registered
under the Registered Land Act (Repealed) was described by reference to serial
number in the registry map, which number was a combination of the district,
section, block and parcel number. Example of a title to land under the Act would
be Siaya/Siaya Town/Block 6/123. The table below, therefore, summarises the
title documents under various regimes for deed or title registration discussed
above.

Legislative Title Registrar Situation

Framework Document/Deed of Land
Document Registrie
s

Registratio Registrar Nairobi

n of of and
Documents Documents Mombasa
Act

Land Titles Certificates of Recorder Mombasa

(Repealed) Ownership; of Titles
Act
Certificate of
Mortgage or
Certificate
Interest

501 Ibid.

502 Ibid, section 5.

503 Ibid, section 18.

504 Wanjala, supra, page 9.

Government Title Deed; Governmen Nairobi
Lands Conveyance t Land and
(Repealed) Registrar Mombasa
Act

Registratio Grant; Registrar Nairobi

n of Titles Certificate of of Titles and
(Repealed) Title; Lease Mombasa
Act

Registered Certificate of District Land

Land Act Lease; Title Deed Lands Districts
(Repealed) Registrar all over
the
country

The Land Registration Act achieves the purpose for which the Registered Land Act
(Repealed) was enacted. The preamble of the Land Registration Act expresses its
purpose as being “An Act of Parliament to revise, consolidate and rationalize
the registration of titles to land, to give effect to the principles and objects
of devolved government in land registration, and for connected purposes.” Section
12 of the Act tasks the Public Service Commission to appoint a Chief Land
Registrar, County Land Registrar, Land Registrars and other officers necessary
to effectively discharge functions under the Act.
Under the provisions of section 6 of the Act, the National Land Commission is
mandated, by way of Gazette, to constitute land registration units at county
levels and any other levels to ensure reasonable access to land registration and
administration services; to divide the registration units into registration
sections; to divide registration sections into registration blocks and to
designate distinctive numbers or letters or a combination of letters and numbers
to refer to a specific registration block or section. Further, sections 7(1)(a)
and 7(1) (b) of the Act mandate the National Land Commission to determine the
form of land register to be maintained in each registration unit and to determine
the date when land plans are to be geo-referenced.
Under the provisions of section 30 of the Act, the Land Registrar is enjoined
to issue, upon application, a certificate of title in respect of freehold
interest, or a Certificate of Lease in respect of leasehold interest exceeding
twenty five years. Title documents issued under the Registered Land Act
(Repealed), Government Lands Act (Repealed), Land Titles Act (Repealed) and
Registration of Titles Act (Repealed) are recognized and dealt with by dint of
the provisions of Part XII of the Land Registration Act. Title documents issued
under the provisions of the Registered Land Act (Repealed) or the Registration
of Titles Act (Repealed) are deemed to be certificate of title or certificate of
lease as the case may be, issued under the Land Registration Act. The registers
previously kept under the provisions of the Registered Land Act (Repealed) or
the Registration of Titles Act (Repealed) are deemed to be the registers required
to be kept under the Land Registration Act.
Title to parcel of land kept under the Government Lands Act (Repealed) and
Land Titles Act (Repealed) are required to be promptly examined and their
particulars noted in a register. The Registrar is then enjoined to notify the
proprietor of such parcel of land of the intention to register the proprietorship,
and upon request by the proprietor, issue the proprietor with a certificate of
title or certificate of lease as the case may be, over the land. It will be
remembered that registration system under the Government Lands Act (Repealed)
and Land Titles Act (Repealed) were deed system of registration. Thus, the Land
Registration Act seeks to do away with the deed system of registering land, and
reinforce exclusively title system of registration of land. The Land Registration
Act and the Land Act also recognize and preserve any rights, liabilities and
remedies acquired, imposed or exercisable under the Registered Land Act
(Repealed), Government Lands Act (Repealed), Land Titles Act (Repealed) and
Registration of Titles Act (Repealed).505

5.4 PROCESS OF REGISTRATION

This section highlights the procedure followed in registering title or document
at the land registry. Registration of any document affecting interest in land
begins by filling valuation forms for purposes of determining stamp duty payable.
Section 46 of the Land Registration Act506 and section 5 of the Stamp Duty Act507
require any person wishing to transfer interest in land to pay the applicable
stamp duty. The Land Registration Act states that:
“An instrument required by law to be stamped shall not be accepted for registration
unless it is stamped in accordance with the Stamp Duty Act (Chapter 480).” 508
It is important to point out that after 30 Years the capital gains tax509 has
been re-introduced through the Income Tax Act.510 A number of amendments have been
introduced that have a bearing on land related transactions.511
The conveyancer then fills valuation forms, while the Kenya Revenue Authority
(KRA) fills valuation for stamp duty requisition form. KRA then sends the forms
to the Chief Government Valuer for ascertainment of duty payable. Section 10A of
the Stamp Duty Act states as follows in this regard:
The Collector of Stamp Duties shall refer to the Chief Government Valuer any conveyance
or transfer on sale of any immovable property before or after registration of the
relevant instruments in order to determine the true open market value of such property
as at the date of conveyance or transfer for purposes of ascertaining whether any
additional stamp duty is payable.
Once the duty payable is ascertained to be correct, the document to be registered
is stamped and the correct duty paid before the document can lodged for
registration. Once the document is presented for registration, it is given a day
book number and the day book number entered into the relevant register. The day
book number records the date and time that the document is presented for
registration. The day book number is endorsed on the document for purposes of
priority. It is in the order of presentation of registration document, not when
the document was executed. Once the day book number is endorsed on the document,
it is taken to the audit and Government auditor to ascertain that stamp duty and

505 See sections 106 and 107 of the Land Registration Act; section 162 of the Land Act.

506 Government Lands (Repealed) Act (Chapter 280) Laws of Kenya states, “117 No document shall be registered
unless the fee prescribed has been paid and, if the document is one which is liable to stamp duty, the document
is duly and sufficiently stamped.”

507 Stamp Duty Act (Chapter 480) Laws of Kenya states, “5. Subject to the provisions of, and to the
exemptions contained in, this Act and any other written law, every instrument specified in the Schedule,
wheresoever executed, which relates to property situated, or to any matter or thing done or to be done, in
Kenya, shall be chargeable with the stamp duty specified in the said Schedule.”

508 Section 46, Land Registration Act.

509 Capital Gains Tax is a tax chargeable on the whole of a gain which accrues to a company or an individual
on or after 1 January 2015 on the transfer of property situated in Kenya, whether or not the property was
acquired before 1 January 2015.

510 See Chapter 470, Law of Kenya (Rev. 2012) under sections 3(2)(f) and 15(3)(f) and the Eighth Schedule.

511 See http://www.kra.go.ke/notices/pdf2014/Capital-Gains-Tax-Guidelines.pdf

other applicable taxes such as land rent, land rates, have been paid and the
necessary consents are obtained in respect to the transaction. The document is
then left for matching with the deed or title file from the strongroom.
Once the registration document is matched, the Registry-in-Charge marks the
document for action in a register known as the “A” book. The first action entails
verification of the registration document by an officer in the registry with a
view to detecting any defects in the document. The title is then inspected by an
officer in the registry to ensure that the title is clear and that the
registration can proceed. Once it is ascertained that the title is clear, the
particulars of interest being acquired are then entered into the ‘A’ book. The
registration document is then passed to the Registrar for execution and ultimate
registration. The Registrar vets the document once more and either signs it or
rejects it. If the Registrar approves of the document and signs it, it is
photocopied, sealed and released to the owner.

5.5 OTHER SPECIALISED FORMS OF REGISTRATION

5.5.1 REGISTRATION OF SECTIONAL TITLES

In Kenya, the law governing sectional titles is the Sectional Properties Act.512
The objective of the Act is well encapsulated in its preamble which describes
the Act as, inter alia, aimed at providing for the division of buildings into
units to be owned by individual proprietors and common property to be owned by
proprietors of the units as tenants in common and to provide for the use and
management of the units and common property and for connected purposes.513
The Act is essentially characterised by separate ownership of flats and
apartments; and co-ownership of common property by its owners. Section 54(3) of
the Land Registration Act states that “the registration of interests in land
under the law relating to sectional properties shall be carried out in the manner
prescribed under that Act.” Further, section 54(4) of the Land Registration Act
states that the “land register maintained under section 7 of the Act is deemed
the land register for purposes of the Sectional Properties Act number 21 of
1987.”
Issuance of a sectional title commences by division of the building in issue
into units and registration of sectional plans in respect of the units.514 A
sectional plan is an architectural drawing that outlines the units and the
proportional common area to which each unit relates to. Once the sectional plan
is registered, the Registrar closes the Register of the parcel described in it
and opens a separate Register for each unit described in the Sectional Plan. Once
the proprietor pays the requisite fees, the Registrar then issues the proprietor
with a Title Deed of sectional title in respect of each unit.515 A sectional
title may be transferred in the same manner as any title issued under the
Registered Land (Repealed) Act.516 Residential units under the Sectional
Properties Act are sold by way of a purchase agreement.

512 Number 21 of 1987. The Sectional Properties Act was enacted in 1987. The commencement date of the
statute was 1 April 1990.

513
Ibid, preamble states: “An Act of Parliament to provide for the division of buildings into units to be
owned by individual proprietors and common property to be owned by proprietors of the units as tenants in
common and to provide for the use and management of the units and common property and connected purposes.

514 Sectional Properties Act Number 21 of 1987, section 4.

515 Ibid, section 5(1).

516 Ibid, section 5(6).

 The documents that must be delivered to a potential purchaser of a sectional
title by the developer include: by–laws or proposed by-laws of the corporation;
any management or proposed management agreement; any recreational agreement or
proposed recreational agreement; lease of the unit or a certificate of sectional
title for the unit; any charge or proposed charge affecting the sectional title;
and sectional plan. The developer is required to give the purchaser, at least
ten days before execution of the purchase agreement, a description, drawing or
photograph showing interior finishing of the building, any parking areas,
landscaping, and exterior finishing of the building as it will exist upon
completion by the purchaser. The purchaser must also be informed of the estimated
amount of service charge and his or her unit factor apportionment in respect of
the unit.517 The developer holds in trust all payments that the purchaser makes.518
The Act provides for constitution of a corporation once a sectional plan is
registered under the Act. It is worth appreciating that the type of corporation
envisaged by the Act is distinct from a corporation formed under the Companies
Act.519 The corporation under the Sectional Properties Act is one registered
under the Act and comprises “the owners of units in the parcel to which the
sectional arrangement relates; or (persons) who are entitled to the parcel when
the sectional arrangement is terminated under the Act.”520 The corporation carries
out duties imposed on it by its by-laws, facilitates insurance of the building,
keeps the building and property in good state of repair, ensures the building
complies with statutory obligations and manages service charge.521 The by-laws

517 Ibid, section 46 states: “46. (1) A developer shall not sell or agree to sell a unit or proposed unit
unless he has delivered to a purchaser a copy of – (a) the purchase agreement; (b) the by-laws or proposed by-
laws; (c) any management agreement or proposed management agreement; (d) any recreational agreement or proposed
recreational agreement; (e) the lease of the parcel, if the parcel on which the unit is located is held under
a lease and the certificate of sectional property in respect of the unit or proposed unit which has been or
will be issued under section 5(1)(c); (f) any charge that affects or proposed charge that will affect the title
to the unit or proposed unit or, in respect of that charge or proposed charge a notice prescribed under
subsection (2); and (g) the sectional plan or proposed sectional plan.
(2) A developer shall deliver to the purchaser in respect of a charge or proposed charge a written notice
stating – (a) the maximum principal amount available under the charge; (b) the maximum monthly payment that
may be paid under the charge; (c) the amortization period; (d) the term; (e) the interest rate or the formula,
if any, for determining the interest rate; and (f) the prepayment privileges, if any.
(3) Subject to subsection (4), a purchaser of a unit under this section may, without incurring any liability
for doing so, rescind the purchase agreement within ten days from the date the purchase agreement was executed
by the parties to it.
(4) A purchaser may not rescind the purchase agreement under subsection (3) if all the documents required
to be delivered to the purchaser under subsection (2) have been delivered to the purchaser not less than ten
days prior to the execution of the purchase agreement by the parties to it.
(5) If a purchase agreement is rescinded under subsection (3) the developer shall, within ten days from
his receipt of a written notice by the purchaser of the rescission, return to the purchaser all of the money
paid in respect of the purchase of the unit.”

518 Ibid, section 48

519 Chapter 486 of the Laws of Kenya. See section 17(5) of the Sectional Properties Act which is explicit
that “the provisions of the Companies Act shall not apply to the corporation.”

520 Section 17(2), Sectional Titles Act.

521 Ibid, section 20 states in part: ”20. (1) The Corporation shall – (a) subject to this Act, carry out
any duties imposed on it by the by-laws; (b) unless by unanimous resolution all the proprietors otherwise
resolve, insure and keep insured buildings and other improvements on the parcel against fire; (c) effect such
other insurance as it is required by law to effect or as it may consider expedient; (d) pay the premiums in
respect of any policies of insurance effected by it; (e) keep the common property in a state of good repair;
(f) comply with any notice or order duly served on it by any competent local authority or public body requiring
repairs to, or work to be performed in respect of, the land or any building or improvements thereon; (g)
subject to this Act, control, manage, and administer the common property and do all things reasonably necessary
for the enforcement of the by-laws; (h) do all things reasonably necessary for the enforcement of any lease or
licence under which the land is held; (i) do all things reasonably necessary for the enforcement of any contract
of insurance entered into by it under this section.
(2) The Corporation shall – (a) establish and maintain a fund for administrative expenses sufficient, in
the opinion of the Corporation, for the control, management, and administration of the common property, and
for the payment of any insurance premiums, rent, and the discharge of any other obligation of the Corporation;
(b) determine from time to time the amounts to be paid for the purposes aforesaid; (c) raise amounts so
determined by levying contributions on the proprietors in proportion to the unit entitlement of their respective
units.
referred to in the Act have nothing to do with laws passed by local authorities
under the Local Government Act522 but instead refer to the regulations set out
by the Corporation on the management of the building.523

5.5.2 REGISTRATION OF SUB-LEASE

A landowner holding freehold or leasehold interest from the government may grant
a sub-lease out of the leasehold or freehold interest. Subleases may also be
leased by third parties conveying some or all of the leased property for a shorter
term than that of the head lease. Such subleases may be prohibited by the
original lease, or require written permission from the owner. The term of the
lease granted by the purchaser under sub-lease is dependent on the head lease.
The concept of sub-leases is common with ownership of flats and apartments in
major cities in Kenya. The owners of the apartments constitute themselves into
a management company purposefully to manage the estate, with such owners of the
apartments being the shareholders of the company. Each shareholder is entitled
to enjoy common amenities on an equal footing with other shareholders, and the
situation of common areas and amenities are clearly described.
The management company is also charged with the mandate of purchasing
reversionary interest from the head lease to ensure that upon the expiry of the
sub-lease, it can be renewed in the name of the management company with the
shareholders continuing to own common areas. The management company collects a
monthly service charge from its shareholders to pay for land rates, water,
electricity, security in the common areas and to maintain the compound. The
management company also maintains a capital fund out of the service charge to
cater for repairs of common areas and amenities.

5.6 CONCLUSION
Land registration is the keeping of public records affecting land.Land
registration is necessary to protect rights and land tenure security; facilitate
dealings in land; facilitate levying of taxes; and to enable government control
of land use. Kenya had two systems of registration on land – deed system of
registration and title system of registration. The Land Registration Act did
way with the former. A deed system of registration records an isolated transaction
and is merely evidence that the transaction took place.
A title system of registration is an authoritative record in a public office
clearly defining units of land as vested for the time being in some particular
person or body, and limitations, if any, to which the rights are held. Deed
system of registration is peculiar to RDA, LTA and GLA. Title system of
registration is peculiar to RTA and RLA. The recently enacted Land Registration
Act reinforces the title systems of registration. Registration of deed or title
inside the land registry follows a fairly cyclic procedure; it begins with the
valuation of the registration document with a view to determining stamp duty, if
payable, and ends when the Registrar approves of the registration document,
signs, seals and delivers the document to the conveyance or his agent. There are
emerging areas of land ownership, to wit, sectional titles and sub-leases, both
of whose registration statute is the RLA. The next chapter focuses on unregistered
interests in land, how they are created and their effect on registered interests.

(3) The Corporation may, pursuant to a resolution of the proprietors, distribute any money or personal
property in its possession and surplus to its current requirements among the proprietors for the time being
according to their unit entitlements...”
522 Chapter 265, Laws of Kenya.

523 See section 2 of the Sectional Properties Act.

 CHAPTER SIX

UNREGISTERED INTERESTS WHICH OVERRIDE REGISTERED TITLE

6.1 INTRODUCTION
Enjoyment of registered land is subject to overriding interests, which, depending
on the regime under which the land is registered, may or may not have been noted
in the register. In its introductory paragraph, section 30 of the Registered Land
Act (Repealed), 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…” With regard to the Registration of Titles Act
(Repealed), 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 noted on the title. This provision was interpreted
by the Court of Appeal in Republic thro’ Olum v Angungo and others 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….524
However, the foregoing interpretation may only be taken as a general rule. Court
decisions such as Barclays DCO v Patel,525 and Kamau v Kamau,526 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 analyses the various categories of unregistered interests in land,
how they are created and the extent to which they affect registered interest in
land.

6.2 ADVERSE POSSESSION

Adverse possession is a process by which the entire ownership of an estate is
extinguished by lapse of time.527 The period at the expiry of which the right to
adverse possession accrues is defined by section 7 of the Limitation of Actions

524 [1988] KLR 529

525 [1970] EA 89 (Sir Charles Newbold, P. Duffus, V.P. and Law JA.).

526 (1984) KLR, 539 (Kneller, Hancox JJA and Nyarangi Ag, JA).

527 See Ann Itumbi Kiseli v James Muriuki Muriithi [2013] eKLR where 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.
Act, as being twelve years,528 at the expiry of which the proprietor of land may
not commence an action to recover the land.529 The principles upon which the
doctrine of adverse possession operates in Kenya have been well encapsulated in
the Court of Appeal decision of Kinyua v Simon Gitura Rumuri.530 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, held as follows:
With regard to the extent of adverse possession, we think that possession of 8 acres
of land for a period exceeding twelve years has been clearly established and that the
respondent was in exclusive possession of the piece of land openly and as of right
during all this time. With respect, this is all that a claimant is required to
establish. In the face of the nature of the possession as described above, including
dwelling houses and permanent plants and the visible burial ground of the respondent’s
parents in the disputed land, we think it is quite evident to us that the respondent
uses the land which he claims as of right: nec vi, nec clam, nec precario (no force,
no secrecy, no evasion). It follows from the foregoing the appellant is deemed to
have had either actual knowledge of the possession or had the means of knowing of the
possession or occupation but did nothing about it by way of asserting the right of
ownership (constructive knowledge). It is also not in dispute that the possession was
never interrupted and was continuous for the entire period as prescribed. We are
therefore satisfied that the superior court had properly addressed the issue of the
fact of possession and also the applicable law. Touching on the important issue of
the extent of possession, the evidence on record points to exclusive possession of 8
acres only and in view of the gracious concession by Mr. Mwenda, learned counsel for
the respondent, which concession we think is properly grounded in law, we wish to
affirm that a claimant would not be entitled to more than the parcel he had exclusive
control of and in this case, it is eight acres only.
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,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. 531

528 Limitation of Actions Act (Chapter 22) Laws of Kenya, 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.”

529 Ibid, section 17.

530 Nyeri civil appeal number 265 of 2005.

531 Eldoret C.A number 136 of 2005.

 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.532 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”)533. 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 only the portion of land that he possessed; and not exclusive possession of
the entire 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. For instance, in the case of Muraguri
Githitho v Mathenge Thiongo,534 a claim for adverse of possession was sought in
respect of land parcel Magutu/Ragati/459. The grounds upon which the application
was brought were that the applicant entered the suit land in 1968, and had since
that date used the same as his own. It was argued that he had since carried out
extensive developments in the land and his occupation had been open, without
force and or interference from the respondent or his servants, agents or any
other person claiming through or under him.
In total he had occupied the suit land in excess of 37 years and it was
therefore, argued that acquired title to the land by way of adverse possession.
In support of the originating summons (O.S.) the applicant swore that on 22
January 1968, he settled on the suit land comprising 0.48 hectares, which land
was registered in the name of Gatiya Machira. Since then, he had put up a
dwelling house and seven houses for rental. On or about 3 May 1974, Gatiya Machira
sold the suit land to the respondent who never asked the applicant to vacate.
Indeed he instead occupied land parcel Magutu/Ragati/458 (458), on which he built
rental houses as well. By virtue of the applicant’s occupation of the suit land
since 1968, he had acquired title over the same. Further by 4 March 1986 a
period of 12 years had elapsed and therefore the interest of the respondent in
the suit land had been extinguished. However, on or about 4 August 2003, the
respondent caused his advocates to give the applicant 30 days’ notice to vacate
the suit land, by which time he had already acquired title to the same by adverse
possession. He was, therefore, entitled to be registered as proprietor of the
suit land. It emerged during the hearing that the applicant had litigated over
the suit land before Mathira Land Disputes Tribunal in case number 12 of 2006
and in its award, the Tribunal confirmed that the suit land were the respondent’s
exclusive property.

532 See also Wanje v Saikwa (No.2) (1984) KLR 284.

533 [2009] eKLR

534 Nyeri High Court civil case number 17 of 2006.

 The Court held that the entry into the suit land by the applicant was not
hostile or averse to the owner’s title and that the applicant entered into the
suit land as a purchaser from Gakuu Ngatia. That, being the case, the court was
of the view that the applicant’s entry to the suit land was with the permission
of the owner and was thus not adverse to the respondent’s title to the suit
premises. Possession could only be adverse if it was inconsistent with and in
denial of the title of the owner in form of want of permission. That by claiming
that the applicant bought the suit land, the applicant had failed to prove that
he had no colour of right to be on the suit land other than his occupation and
possession by permission of the vendor who in this case was Gakuu Ngatia.
Other than the foregoing principles, adverse possession also turns on a number
of principles. For instance, 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.535 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 additional circumstances.
Secondly, where title is acquired by way of adverse possession, the previous
owner’s right to recover land by eviction is debarred by lapse of time,536 with
time running on the first day on which the action to adversely acquire land could
have been instituted, but was not. Put differently, adverse possession is
dependent on the element 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.537 The principle
is well enunciated in the case of Samwel Nyakenogo v Samwel Orucho Onyaru538 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.”539 Whatever constitutes
dispossession has been restated by Lord Lindhoy, MR in the case of Littledale v
Liverpool College 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.540

535 Blackstone (1791), Commentaries on the Laws of England, Vol.3, page 168.

536 Holdsworth, W. (1925), History of English Law, London: Sweet & Maxwell, 2nd Edn, Vol. VIII, page 69.

537 See Limitation of Actions Act, section 9(1).

538 Kisumu CA number 24 of 2004.

539 See also Wambugu v Njuguna, civil appeal number 10 of 1982.

540 (1900) 1 Chp. 19, 21.

 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 Ndete541 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.542 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.543 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.544
Thirdly, 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.545 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. 546
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.
In particular, 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 reflect the adverse
possessor as the new owner, once the title of the registered proprietor has been
barred.547 Court decisions have been consistent in this regard.

541 (1984) KLR 776.

542 Ibid, section 9(2).

543 Ibid, section 18(2).

544 Ibid, section 14.

545 Sindall v Cambridgeshire County Council [1994] 1 WLR 1016, 1024

546 Limitation of Actions Act, section 15.

547 Anderson J. (1992), Lawyers and the Making of English land Law, Oxford: Clanderon Press.
 In Spectrum Investment Co. v Holmes,548 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,549 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.550
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.551 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.552 The mere change of ownership
of the land which is occupied by another under adverse possession does not
interrupt such person’s adverse possession.553
In the case of Samwel Nyakenogo v Samwel Orucho Onyaru,554 for instance, 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 rendered itself as follows in
this regard:
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 as follows in
this regard:
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.555

548 [1981] 1 WLR 221.

549 [1998] 4 All ER 948.

550 See also Mark Wonaccott (2006), Possession of Land, Cambridge: Cambridge University Press

551 See reasoning of the Court of Appeal in Samwel Nyakenogo v Samwel Orucho Onyaru, Kisumu CA number 24
of 2004. See also Mbugua Njuguna v Elijah Mburu Wanyoike and another, CA number 27 of 2002, where 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 the 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 – see Githu v Ndeete (1984) KLR 776 at page 780, paragraph 25.”

552
Kasuve v Mwaani Investments Limited and others, civil appeal number 35 of 2002.

553 Githu v Ndeete (1984) KLR 776.

554 Kisumu civil appeal number 24 of 2004.

555 See the Judges emphasis on Order 37, rule 7 of the Civil Procedure Rules ,2010 in Ann Itumbi Kiseli v
James Muriuki Muriithi [2013] eKLR
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,556 or, in its volition,
presume that the suit had been commenced by way of plaint, in which case, the
affidavits filed will be construed as pleadings, with or without amendments.557
It will also be remembered that not all land registration regimes recognise ‘‘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 Act (Repealed), a certificate of search suffices as the extract of title.
In the case of Johnson Kinyua v Simon Gitura Rumuri,558 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.559
The onus is on the person claiming adverse possession to prove. In the words of
Kneller in Kimani Ruchine v Swift, Rutherfold & Co Ltd:560
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 for any temporary purpose or by any 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…. 561

556 Order 37, rule 18 of the Civil Procedure Rules, 2010.

557 Order 37, rule 19 of Civil Procedure Rules 2010.

558 Nyeri civil appeal number 265 of 2005.

559 See also sections 36(2) and 37(2) of the Registered Land (Repealed) Act (Chapter 300). Section 36(2)
states: “Any person may require an official search in respect of any parcel, and shall be entitled to receive
particulars of the subsisting entries in the register relating thereto and certified copies of any documents
or of the registry map or of any plan filed in the registry.” Section 37(2) of the Act states: “Every document
purporting to be signed by the Registrar shall, in all proceedings be presumed to have been so signed until
the contrary is proved.”

560 (1980) KLR 10.

561 See also Kariuki, J. in Omukaisi Abulitsa v Albert Abulitsa, Kakamega High Court civil case number 86
of 2005 (UR) who stated thus; “Section 38 of the Limitation of Actions Act, Chapter 22 of the Laws of Kenya
entitles a person to be registered as proprietor instead of the registered proprietor where such person
establishes by evidence that he or she has become entitled to be registered on account of his or her occupation
of the land, openly and continuously and without interruption and with the knowledge of the registered owner
for a period of twelve years or more adversely to the title of the registered owner. In other words, where a
person trespasses on the land of another with the knowledge of the latter who does not assert his right to the
title to the land by evicting the trespasser or by suing him or her in court for eviction or ejectment but
instead lets the trespasser openly occupy the land for a continuous and uninterrupted period of not less than
twelve years, the trespasser is entitled to apply under section 38 (supra) to be registered as the proprietor
of the land. This is what the doctrine of adverse possession means. Where the period of 12 years is not
continuous or is interrupted, the period of adverse possession is broken and must start all over again. But
where one trespasser removes another trespasser who is in adverse possession to the owner and continues to
occupy the land, the period of adverse possession is not broken and the second trespasser is entitled to
combine the period of trespass of the first trespasser to his own. The land claimed by adverse possession
need not be all the land comprised in the title; it may be a portion of it providing that the portion claimed
is demarcated well enough to be identifiable. And as regards assertion of title, it is not enough for a
proprietor of the land to merely write to the trespasser. A letter by the proprietor, even if it be through
6.6.3 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.562 Whereas easements are nowadays recognized as incorporeal
563
hereditaments, that is, objects of property in themselves, initially, easements
were construed as rights appurtenant to corporeal hereditaments,564 that is, a
privilege which could be obtained for the benefit of the corporeal land. For
there to be declared an easement, four essential565 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, as it passes with the land
so that an occupier of the dominant tenement, including a lessee, can enjoy it.566
The easement is not personal to the occupier, but to the 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.567
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). In that context, one cannot have an easement over his own land; as
one cannot have rights against himself.568
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.569 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
easements. 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

an advocate or the chief of the area does not amount to assertion of title in law and cannot therefore interrupt
the passage of time for the purpose of computing the period of adverse possession. For there to be interruption,
the proprietor must evict or eject the trespasser but because eviction is not always possible without breach
of peace, institution of suit against the trespasser does interrupt and stop the time from running. For these
propositions of law…”

562 Megarry and Wade (2008), The Law of Real Property, London: Sweet & Maxwell, 7th edition, page 1207.

563 Hill v Midland Ry (1882) 21 Ch D 143.

564 Megarry and Wade, supra.

565 See Rangeley v Midland Rly Co (1868) 3 Ch App 306 at 310 per Lord Cairns LJ; Jalnarne v Ridewood (1989)
61 P & CR 143.As to the essential characteristics of an easement, see also Paragraph 2 [5002] ante and 14
Halsbury’s Laws (4th Edn) Easements paras 7–12

566 See Leech v Schweder (1894) 9 App. Cases 463 at 474.

567 Mason v Shrewsbury and Hereford Ry (1871) L.R. QB 578 at 587.

568 Metropolitan Ry v Fowler [1892] 1 QB.165 at 171.

569 Megarry and Wade, supra, page 1212.

 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.570 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.571
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 37(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
Limitation of Action Act. Section 37(b) of the Act 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.O. v Patel,572 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…. 573
Similarly, in Kamau v Kamau, the Court of Appeal held that enjoyment of easement
is actionable if obstructed.574 The Court stated:
A right of way and a right to take water are affirmative easements for they authorise
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 respondent’s
land to that of the appellant’s husband was a way of necessity and an easement by

570 Ibid.

571 Copeland v Greenhalf (1952) Ch. 488 at 498.

572 [1970] EA 89 (Sir Charles Newbold, P. Duffus, VP and Law JA).

573 Supra pp. 92-93.

574 (1984) KLR, 539 (Kneller, Hancox, JJA and Nyarangi, Ag, JA).
 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 judgement of the High Court and instead give judgement for Ruth
against Monica for a declaration that Ruth is entitled to a right of way over the
land reference Chania/Makwa/789 registered of Monica to Ruth’s land reference
Chania/Makwa/792 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/Makwa/789…
The species of easements include rights of way; rights of light; rights of water;
rights of support; rights of air; and rights of fencing.575 The law recognises a
right of way as an affirmative easement authorising 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 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.576
Any disturbance of a right of way is unlawful and preventable. The Chancery
Division of the High Court, in Lane v Capsey577 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 be used…”
578

Kenyan courts have also enforced the right of way in the case of James Ngugi
Mbugua and another v Grace Wairimu Mwithiga. 579The case involved a dispute over
a four metres wide road passing alongside a common boundary of two parcels of
land, namely, LR number Kabete/Kibichiko/163 registered in the name of the
deceased Mbugua Ngugi. The plaintiffs were the administrators of the deceased
land. The other parcel of land was LR 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.”

575 Section 138 of the Land Act.

576 Section 36(1)(b), Land Act.

577 (1891) 3 Ch. 411.

578 See also Kamau v Kamau (1984) KLR, 539 (Kneller, Hancox, JJA and Nyarangi, Ag JA).

579 Nairobi High Court civil case number 1174 of 2002 (O.S.).
 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 of 20 years preceding the date of invocation of registration. The relevant
part of the provision states that:
Where…. 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,580 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 encumberances, 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 Act (Repealed) 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.O. v
Patel,581 and Kamau v Kamau,582 discussed in the preceding parts of this section.

6.6.4 PROFITS
A profit a prendre is the right to take something off another person’s land.583
The thing taken must be part of the land such as mineral, crops or wild animals
existing on the land; and the thing taken, must, at the time of taking, be capable
of ownership.584 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.585 Where a profit
a prendre is enjoyed by one person to the exclusion of everyone, it is known as

580 (2003) KLR 466, Githinji, J (as he then was).

581 [1970] EA 89 (Sir Charles Newbold, P. Duffus, VP and Law JA).

582 (1984) KLR, 539 (Kneller, Hancox, JJA and Nyarangi, Ag JA).

583 Duke of Sutherland v Heathcote (1892) 1 Ch 475 at 484.

584 Lowe v J.W. Ashmore Ltd (1971) Ch 545 at 557.

585 Embrey v Owen (1851) 6 Exch. 353 at 369. The author is aware though that certain authors and statutes
have defined land to include water. The point here is not land, but the soil component of the land.
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.586

6.6.5 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. The right to adverse
possession arises when an adverse possessor possesses land openly, without force
and without the owner’s permission for a continuous period exceeding twelve
years. The time when the owner of land is dispossessed of land or is discontinued
from possessing land is material in computing time within which the adverse
possessor has possessed the land.
Possession of land, without more, is not sufficient to create the right to
adverse possession. There must have been some positive act done by the adverse
possessor as would be undertaken by the owner of the land. Easements are common law
rights enjoyed by one person over the land of another however, easements do not
confer on the owner of the dominant tenement exclusive use of the servient
tenement or any of its part to the exclusion of the owner of the servient
tenement. The principles upon which easements are founded include the presence
of dominant and servient tenement; conferment of benefit on dominant tenement;
difference in ownership of dominant and servient tenement; and the requirement
that an easement be created by way of grant. Easements are created if enjoyed
peacefully and openly as of right and without interruption for a period exceeding
twenty years. A Profit a prendre is the right to take something which is part of
the land and capable of ownership off another’s land.

CHAPTER SEVEN

LAND LAW AND BORROWING TRANSACTIONS

7.1 INTRODUCTION
Mortgages and charges are securities for advances of money by the lending bank
to the vendor. Previous to the enactment of the Land Registration Act and the
Land Act, a mortgage was peculiar to land registered under the Government Lands
Act (Repealed) 587 and the Land Titles Act (Repealed).588 A legal charge was
peculiar to land registered under the Registered Land Act (Repealed) 589 and the
Registration of Titles Act (Repealed).590 Other than a legal charge or mortgage,

586 Meggary and Wade, supra, page 1230.

587 Chapter 280, Laws of Kenya.

588 Chapter 282, Laws of Kenya.,

589 Chapter 300, Laws of Kenya.

590 Chapter 281, Laws of Kenya. See also the reasoning of court in Mohammed Gulamhussein Farzal Karmali
and another v C.F.C. Bank Limited and another [2006] eKLR that “…in this case, the suit property is registered
under the Registration of Titles Act. Under that statute, the only form of security is a charge. There is
absolutely no mention of mortgages in the Registration of Titles Act. Therefore, I believe that a mortgage
could not be created under that statute. It thus follows that the security herein, is, as it describes itself
on the face of the document, a charge.”
security over land may also be created by way of an equitable mortgage or an
equitable charge. Whereas a mortgage transfers an interest in specific immovable
property for the purpose of securing the payment of money advanced, or to be
advanced by way of loan, a charge does not transfer any interest in the property
but designates the land as security for the debt.
A mortgage conditionally assigns or conveys interest in land to secure
repayment of a debt. The assignment or conveyance is conditional on the default
by the borrower. In the event that the borrower defaults, the mortgagee’s interest
in land becomes absolute. Where the borrower or mortgagor does not default, the
land reverts to the mortgagor.591 A charge only gives right to payment without
transferring the title to the property unlike a mortgage which transfers an
interest in specific immovable property. In other words, whereas a mortgage
confers interest in the property, a charge confers interest over the property.
The wording of section 65(1) of the Registered Land Act (Repealed) that “a
proprietor may, by an instrument in the prescribed form, charge his land, lease
or charge to secure the payment of an existing or a future or a contingent debt
or other money or money’s worth or the fulfilment of a condition…” is instructive
in this regard. Section 65(4) of RLA (Repealed) of the foregoing section is even
more incisive that “a charge shall not operate as a transfer but shall have
effect as a security only.”592 The case of Mohammed Gulamhussein Farzal Karmali
and another v CFC Bank Limited and another, sums up the difference in the two
types of securities as follows:
Just to be sure that the distinction between the two (mortgages and charges) is clear,
it is to be noted that section 58(d) of the Transfer of Property Act defines a mortgage
as follows: ‘a mortgage is the transfer of an interest in specific immovable property
for the purpose of securing the payment of money advanced or to be advanced by way of
loan, an existing or future debt, or the performance of an engagement which may give
rise to a pecuniary liability.’ The significant feature of a mortgage is thus the
transfer of an interest in specific immovable property.593
The document creating the mortgage is referred to as a mortgage-deed or simply
a mortgage. The document creating a charge is referred to as a charge. This
chapter analyses the regime of law on mortgages and charges. On the first part,
it identifies the categories of mortgages and charges depending on whether the
charge or mortgage is registered or not, that is, the concept of legal and
equitable charges and mortgages. On the second part, the chapter identifies the
various kinds of legal mortgages and charges and how they are created. The chapter
then sets out the various remedies available to both the borrower and the lender
and how such remedies are supposed to be exercised.

7.2 CONCEPTUALISING EQUITABLE MORTGAGES AND EQUITABLE CHARGES

An equitable mortgage or charge can be created in various ways. Firstly, the
security may be created when the borrower completes a simple informal memo and
deposits the memo together with the original title to a bank. The equitable
mortgage creates a contract between the borrower and the lender under which the
borrower shall have transferred his proprietary interest by way of security to
the lender. In the event of default, a legal mortgage or charge may be created

591 Indian Transfer of Property Act, section 58(a) states: “A mortgage is the transfer of an interest in
specific immovable property for the purpose of securing the payment of money advanced or to be advanced by way
of loan, an existing or future debt, or the performance of an engagement which may give rise to a pecuniary
liability. The transferor is called a mortgagor, the transferee a mortgagee; the principal money and interest
of which payment is secured for the time being are called the mortgage-money, and the instrument (if any) by
which the transfer is effected is called the mortgage-deed.”

592 See also section 110 of the Transfer of Property Act and section 46(1) of the Registration of Titles
(Repealed) Act.

593 [2006] eKLR.

so long as the borrower must have intended to create the equitable mortgage or
equitable charge.594 Secondly, where a legal charge or mortgage is defective, an
equitable mortgage or equitable charge may nevertheless be created from the
defective legal charge or mortgage.
An equitable mortgage or charge is also created in the formal agreement
creating the legal mortgage or charge. Lastly, a floating charge can create an
equitable charge as will a written authority to the lender to sell a property
and retain the proceeds, or even a written undertaking to hold documents to the
order of the lender. Section 100 of the Government Lands Act (Repealed) recognises
the creation of an equitable mortgage by registering the memorandum of equitable
mortgage in the register.595
Under the Registration of Titles Act (Repealed), an equitable charge was
created “by the deposit of documents of title to land under the Act, evidenced
by an instrument in writing.”596 The memorandum of deposit of title was then
registered under the Equitable Mortgages Act.597 Under the Act, an equitable
mortgage or equitable charge was created when the borrower deposited with the
lender the document of title, with intent to create security thereon.598
As to whether an equitable charge might be created under the Registered Land
Act (Repealed) was trivial. On the one hand, it was argued that the RLA did not
have any equitable charges as the title document is not itself a title per se
,and further that the RLA expressly provided for how to create a security. The
Court of Appeal, however, in KCFC v Ngeny599 held that section 163 of the RLA
imported the common law principles of equity including equitable charges. 600
Where there is a conflict between an equitable mortgage or equitable charge
and legal mortgage or legal charge, the legal security takes precedence over the
equitable security. This is a major weakness of the equitable security. In
addition, before enforcing an equitable mortgage or equitable charge, one has to
go to court for ascertainment of the equitable security.

7.3 FORMS OF MORTGAGES

Whereas charges are limited in form, mortgages exist in different models depending
on the interest that each of them confers. The following mortgages were
statutorily recognized in Kenya under the previous constitutional order:

594 Registration of Titles (Repealed) Act, section 66(3) states: “(3) A charge created by the deposit of
documents when registered shall render subject to the security thereof the same property as would have been
affected by an equitable mortgage had the lands comprised in the charge not been registered under this Act and
had the transaction been effected by an equitable mortgage instead of by that charge.”

595 GLA, supra note, section 100(2) and (3) state: “(2) Nothing in subsection (1) shall apply to an
equitable mortgage by deposit of documents of title if a memorandum of that equitable mortgage has been
registered in the register; but on the discharge of the equitable mortgage, a memorandum of the discharge shall
be registered in the register. (3) Every memorandum required to be registered under subsection (2) shall be
transmitted to the registry in duplicate, and shall be in such form, and there shall be paid on the registration
thereof such fee, as may be prescribed.”

596 RTA, supra note, section 66(1).

597 Chapter 291, Laws of Kenya.

598 Ibid, section 2(1).

599 [2002] 1 KLR 106.

600 RLA, section 163 states: “163. Subject to this Act and except as may be provided by any written law
for the time being in force, the common law of England, as modified by the doctrines of equity, shall extend
and apply to Kenya in relation to land, leases and charges registered under this Act and interests therein,
but without prejudice to the rights, liabilities and remedies of the parties under any instrument subsisting
immediately before the application.”
7.3.1 SIMPLE MORTGAGES
Simple mortgages were provided for in section 58(b) of the Indian Transfer of
Property Act (Repealed). The section stated:
Where, without delivering possession of the mortgaged property, the mortgagor binds
himself personally to pay the mortgage-money, and agrees, expressly or impliedly,
that, in the event of his failing to pay according to his contract, the mortgagee
shall have a right to cause the mortgaged property to be sold and the proceeds of
sale to be applied, so far as may be necessary, in payment of the mortgage-money, the
transaction is called a simple mortgage and the mortgagee a simple mortgagee.
Such that, the distinguishing characteristics of a simple mortgage are that the
mortgagor does not deliver possession of the immovable property. The mortgagor
simply binds himself to pay the loan. In the event of the mortgagor’s default,
the mortgagee has a right to sell the property to recover the loan amount or any
part of it that is outstanding. In the case of Equitorial Commercial Bank Limited
and others v Retreat Villas Limited,601 a simple mortgage was distinguished from
an English mortgage on the basis that whereas there is delivery of possession of
the immovable property in an English mortgage, delivery of the property is not
delivered in a simple mortgage.

7.3.2 MORTGAGE BY CONDITIONAL SALE

This type of mortgage was created by section 58(c) of the Transfer of Property
(Repealed) Act. The characteristics of the mortgage are that the borrower sells
the immovable to the lender, on condition that in the event that the borrower
fails to pay the loan amount or any of its part, the sale becomes absolute.
However, in the event that the borrower pays the loan amount, the immovable
property reverts to the owner; and the sale is void.602 In this type of security
in land, the transaction is ostensibly a sale or transfer of ownership in ex-
change for a price (section 34), but is really intended to be a mortgage or
transfer of an interest in specific immovable property for the purpose of securing
the payment of money. It is actually the nature of the transaction envisaged in
section 34 of the ITPA on conditional performance. As the transaction is really
a mortgage, and only ostensibly a sale, sub-section (c) refers to the transferor
as the mortgagor, and speaks of the ostensible sale of the mortgaged property
subject to certain conditions as to the payment of the mortgage money.603

7.3.3 USUFRUCTUARY MORTGAGE

Usufructuary mortgage was a creature of section 58(d) of the ITPA. In this type
of mortgage, the mortgagor delivers possession of the mortgaged property to the
mortgagee and authorizes the mortgagee to retain the property until payment of
the mortgage-money. In addition, he authorizes the mortgagee to receive rents
and profits accruing from the property and appropriate the rents and profits
accruing from the property to pay mortgage money,.604 In the case of S. Srinivasa

601 [2005] eKLR.

602 Supra, ITPA section 58(c) states: “Where the mortgagor ostensibly sells the mortgaged property on
condition that on default of payment of the mortgage-money on a certain date the sale shall become absolute,
or on condition that on such payment being made the sale shall become void or on condition that on such payment
being made the buyer shall transfer the property to the seller, the transaction is called a mortgage by
conditional sale and the mortgagee a mortgagee by conditional sale.”

603
Debi Singh and others v Jagdish and others AIR 1952 All 710.

604
Supra, ITPA section 58(d) states: “Where the mortgagor delivers possession of the mortgaged property
to the mortgagee, and authorizes him to retain such possession until payment of the mortgage-money, and to
receive the rents and profits accruing from the property and to appropriate them in lieu of interest, or in
payment of the mortgage-money, or partly in lieu of interest and partly in payment of the mortgage-money, the
transaction is called an usufructuary mortgage and the mortgagee an usufructuary mortgagee.”
Aiyangar and others v Radhakrishna Pillai,605 the plaintiff sued for redemption
of a mortgage created in 1884.
This mortgage document read on its face as, ‘‘a usufructuary mortgage’’ and
in two or three places in the course of the deed, it expressly referred to the
document as a usufructuary mortgage deed. However, it contained a clause that if
the mortgage amount was not paid on a date which was stipulated in the document
at an interval of exactly nine years from the date of the document, the mortgage
was to work itself out as a sale for the principal amount due on the mortgage
bond. Possession was given to the mortgagee in accordance with the nature of the
document and its spirit. At the end of the document, there was a covenant to this
effect: “I, the mortgagor, shall pay to you the costs of the construction of
earth work… on the date fixed for redemption as per your accounts along with the
mortgage money.”
The Court, therefore, had to determine the nature of the document. The
appellant alleged that the document was a combination of three kinds of mortgages:
a simple mortgage; a usufructuary mortgage; and a mortgage by a conditional sale.
The respondent’s argument, on the other hand, was that the document was a
usufructuary mortgage with a covenant at the end clogging the equity of
redemption. The Court ruled out the possibility of the document being a mortgage
by conditional sale on, inter alia, the ground that there was “no ostensible sale
of the mortgaged property on the date of the document.”
A mortgage deed which begins as a mortgage transaction cannot be called a
mortgage by conditional sale, though it is a mortgage which gives the mortgagee
after a certain time and on breach of certain conditions by the mortgagor a right
to claim a title as vendee. That is, a mortgage with a clause providing for a
future conditional sale and not a mortgage by means of a present sale transaction.
The Court, therefore, held that the document was a usufructuary mortgage as it
fitted the definition of such kind of mortgage under the Act and the fact that
it contained a personal covenant by the mortgagor to pay. It was held to be a
simple mortgage. The document was, therefore, a combination of both a usufructuary
and simple mortgage.

7.3.4 ENGLISH MORTGAGE

In English mortgage, the mortgagor binds himself to repay the mortgage-money on
a certain date, and transfers the mortgaged property absolutely to the mortgagee.
The transfer is, however, subject to a proviso that the mortgagee will retransfer
the property to the mortgagor upon payment of the mortgage-money as agreed.606

7.3.5 ANOMALOUS MORTGAGE

Any mortgage which does not meet the description of a simple mortgage, mortgage
by conditional sale, usufructuary mortgage, English mortgage or any combination
of them, is described as an anomalous mortgage.607

7.4 INTERVENTIONS BY THE LAND REGISTRATION ACT AND LAND ACT

It must be emphasized at the outset that the provisions of sections 106(2)
and 106(3) of the Land Registration Act recognise and preserve all rights,
liabilities and remedies arising from mortgages and charges created under the
foregoing repealed land laws. The sections state as follows:

605 (1914) 26 MLJ 47.

606 Section 58(e)of the ITPA.

607 Section 98 of the ITPA.

 (2) Nothing in this Act shall affect the rights, liabilities and remedies of the
parties under any mortgage, charge, memorandum of equitable mortgage, memorandum
of charge by deposit of title or lease that, immediately before the registration
under this Act of the land affected, was registered under any of the repealed
Acts;
(3) For the avoidance of doubt-
(a) any rights, liabilities and remedies shall be exercisable and enforceable in
accordance with the law that was applicable to the parcel immediately before
the registration of the land under this Act; and
(b) the memorandum of equitable mortgage or memorandum of charge by deposit of
title may be discharged by the execution of a discharge in the form prescribed
under the Act under which the memorandum was first registered.
The Land Registration Act refers to the security document as a charge, which it
defines to include “an instrument creating a mortgage”.608 Section 56 of the Land
Registration Act enables a proprietor of land to create a charge over the property
“to secure the payment of an existing, future or a contingent debt, other money
or money’s worth, or the fulfilment of a condition.” A charge must expressly
state that the chargor understands the effect of the section (permitting the
disposal of the property to repay the debt in the event of default) and the
chargor must have signed the acknowledgement.
Where the chargor is a corporation, the person attesting the affixation of
the common seal must sign the acknowledgement for the charge to be valid. Where
a date for repayment of money is not specified in the charge, the debt is presumed
to be repayable three months after the chargee serves on the chargor, a written
demand. Under section 56(5) of the Land Registration Act, it is provided that
“a charge shall have effect as a security only and shall not operate as a
transfer.” Lender’s consent to transfer must first be obtained before a charged
property is transferred, assigned, or leased, where the charge requires the
lender’s consent before transfer, assignment or leasing of the property.609 A
charge must be registered at the registry as an encumberance against title for
it to be valid.610
Before a spouse “who holds land or a dwelling house in his or her name
individually” can legitimately dispose of that land or dwelling house, “the
lender shall, if that disposition is a charge, be under a duty to inquire of the
borrower on whether the spouse has or spouses have, as the case may be, consented
to that charge.” or “the assignee or transferee shall, if that disposition is an
assignment or a transfer of land, be under a duty to inquire of the assignor or
transferor on whether the spouse or spouses have consented to that assignment.”611
If the spouse undertaking the disposition deliberately misleads the lender or,
the assignee or transferee by the answers to the inquiries made, the disposition
shall be void at the option of the spouse or spouses who have not consented to
the disposition.612

SALIENT FEATURES AND THE PROCESS OF SECURITIZATION OF IMMOVABLE PROPERTY

There are salient features to be observed in preparing security documents over
immovable property. Firstly, the security document should satisfy all the legal

608 Section 2 of the Land Registration Act.

609 Ibid, section 59.

610 Ibid, section 37.

611 Ibid, section 93(3).

612 Ibid, section 93(4).

requirements set out in legislative framework on land. Previously, section 3(3)
of the Law of Contract Act613 provided that a contract to transfer interest in
land has to be in writing; signed by all parties to the contract; and attested
to by such person that witnessed the execution of the contract.614 This provision
has now been codified and expanded in mainstream land registration statute, to
wit, in section 44 of the Land Registration Act, which states as follows:
(1) Except as otherwise provided in this Act, every instrument effecting any
disposition under this Act shall be executed by each of the parties consenting to
it, in accordance with the provisions of this section;
(2) The execution of any instrument referred to in subsection (1), by a person shall
consist of appending a person’s signature on it or affixing the thumbprint or
other mark as evidence of personal acceptance of that instrument;
(3) The execution of any instrument referred to in subsection (1) by a corporate body,
association, co-operative society or any other organization shall be effected in
the presence of either an advocate of the High Court of Kenya, a magistrate, a
Judge or a notary public;
(4) An instrument executed out of Kenya shall not be registered unless it has endorsed
on it or attached to it a certificate in the prescribed form completed-
(a) if the instrument was executed in the Commonwealth, by a judge, magistrate,
notary public, commissioner for oaths;
(b) if the instrument was executed in a foreign country outside the Commonwealth,
by any other person or class of persons as the Cabinet Secretary may prescribe.
Other than just executing the document affecting interest in land as provided for
in section 44 of the Land Registration Act, the transferee must also attach to the
document:
(a) a copy of an identity card or passport;
(b) a copy of a Personal Identification Number certificate;
(c) passport size photographs;
(d) where applicable, a marriage certificate; and
(e) such other identification documents as the Cabinet Secretary may prescribe.615
It is a mandatory requirement under section 43(1) of the Land Registration Act
that any instrument of disposition of interest in land conforms to the form
prescribed in relation to that disposition under the Act or any other written
law. The Registrar is required to ascertain that the person executing an
instrument of disposition of interest in land “freely and voluntarily executed
the instrument,” and the Registrar shall complete a certificate to that effect.616
The Registrar has the discretion to dispense with the requirement for verification
if he considers that verification can only be obtained with difficult and is

613 Chapter 23, Laws of Kenya.

614 Various court decisions have rejected contracts on land that do not comply with the requirements of
the Law of Contract Act. In Ol Loita Road Limited v Kenya Commercial Bank Limited, ELC number 593 of 2010 –
Nairobi, the Court held that “If a party is seeking to endorse a contract in relation to land, the contract
has to be in writing and signed by the parties to it and witnessed as required by the section.” See also
Western Pumps Limited v Joseph Wainaina Iraya T/A Queen Chick Inn and another, High Court civil case number
186 of 2006. In Metra Investments Limited v Gakweli Mohamed Warrakah, High Court civil case number 54 of 2006
– Milimani, the Court held “As the case is presented, there is no evidence that an agreement in writing exists
signed by both parties and witnessed as required by section 3(3) of the Law of Contract Act. In the absence of
such agreement, the section is clear that no suit shall be brought for the disposition of an interest in land.
The applicant does not appear therefore, to have a prima facie case with a probability of success.”

615 Land Registration Act number 3 of 2012, section 44(5).

616 Ibid, section 45.

otherwise satisfied that the document is properly executed; or if he knows that
the document has been properly executed. Where the Registrar dispenses with the
requirement for verification, he must record reasons for dispensing with the
appearance of parties.
As to whether a security instrument must specify the rate of interest charged
by the borrower is trivial. Put differently, is it illegal for a borrower to
charge a variable interest under a charge document? In the case of Mohammed
Gulamhussein Farzal Karmali and another v CFC Bank Limited and another,617 one of
the issues contended by the borrower was that statutory powers of sale could not
arise to the lender for the reason that the charge derogated from section 46 of
the RTA that made it mandatory for all charge documents under the Act to conform
to the requirements of forms J(1) or J(2). That the charge provided for variable
rate of interest other than specific simple interests as envisaged in forms J(1)
and J(2), thus the failure of the charge to conform to the requirement of the
said forms divested the lender of the authority to exercise statutory power of
sale on the basis of the charge.
The plaintiffs, therefore, sought an order prohibiting any registration of
ownership of the property from the plaintiffs pending finalisation of the suit.618
The Court held that the charge instrument was not void for the reason that, when
parties to a charge instrument agree that the charge may vary the rate of
interest, and the agreement is incorporated into the instrument, as that, without
more, does not amount to a deviation from the forms provided in the schedule to
the Land Registration Act. In Fina Bank Ltd v Ronak Ltd, it had been argued by
the chargor that the charge was unenforceable on the grounds that no interest
rate was stipulated in the charge document; that variation of interest rates was
unenforceable; and that the said rates were onerous and oppressive. 619
The Court of Appeal found nothing wrong with the variation of interest rates,
or with the fact that no exact rate or rates had been specified.620 Further, in
the case of Elijah Kipng’eno Arap Bii v Kenya Commercial Ltd,621 the Court held
that a charge is a contract between the parties and interest rates can, therefore,
be unilaterally varied if it was so envisaged in the charge document.
There have, however, been dissenting previous court decisions on the issue of
interest rates in charge document. In Kenya Commercial Finance Company Ltd v
Ngeny and another,622 the Court of Appeal held that it is mandatory that the
charge be executed in form J(1) or J(2) in the first schedule which in turn
requires the rate of interest to be specifically stated. As the charge omitted
to state the rate of interest, the charge was found to have been rendered
defective. In Margaret Njeri Muiruri v Bank of Baroda623, the Court of Appeal

617 [2006] eKLR.

618 Section 52 of the Transfer of Property (Repealed) Act provides for the doctrine of lis pendens under
which a property which is subject of a suit is not to be transferred.

619 [2001] EA 54.

620 Ibid. the Court stated, in part, “…upon perusal of the charge document which forms part of the exhibits
that were attached to the replying affidavit, it is evident that although the bank reserved the right to vary
the rate of interest, there was, however, no rate specified therein as either the base lending rate, minimum
rate, or the commencing rate of interest for the facility. Had the rate been specified, then, I would have had
no difficulty in finding in favour of the bank. As the matter now stands, the agreement which forms the basis
for the contractual relationship between the parties hereto is silent on that particular issue, in which event
the rate cannot be inferred by the court.”

621 Milimani Commercial Court civil case number 324 of 2000.

622 [2002] 1 KLR 106.

623 [2014] eKLR.

noted that it is not fair and equitable for any party to an agreement to vary an
interest rate unilaterally.
For land registered under RLA, the chargor was required to sign a certificate
that he understood the effect of section 74 of the RLA.624 Section 74 of the RLA
sets out the remedies to the chargee in the event that chargor defaults in paying
the principal sum, interest, any period payment or any part of the listed
payments. It is the provisions of the repealed RLA that have since been replicated
in sections 44 and 56 of the Land Registration Act. Interestingly, courts have
held that the failure by the chargor to sign the certificate does not make the
charge fatal.
In the case of Ngeny v Kenya Commercial Finance Co Ltd625 the Court of Appeal
held that the lack of certificate neither made the charge void nor were the
chargee’s rights to realize the security invalidated. Under the Registration of
Titles (Repealed) Act regime, the applicable substantive Act being the Indian
Transfer of Property Act (Repealed) (ITPA), an issue arose as to whether the
requirements under section 59 of the ITPA that a security instrument must be
signed by the borrower and attested to by two witnesses,626 applied to the RTA.
This was considering that the RTA, in section 1(2) excluded application of all
other inconsistent statutes from applying to land registered under the Act;627
and section 58(1) set out criteria for attesting to (witnessing) instruments
affecting interest in land under the Act, which criteria was different from that
set out under the ITPA. Section 58(1) of the ITPA required that instruments
relating to land registered under the Act be attested to within Kenya by a judge
or magistrate; a registrar of titles; a notary public; an advocate; a justice of
the peace; the Registrar or Deputy Registrar of the High Court; or an
administrative officer.
The ITPA required attestation to be done by two witnesses. Moreover, section
69(4) of the ITPA required each mortgage instrument to be signed by an advocate
and endorsed by a certificate signed by the advocate to the effect that he has
explained to the mortgagor (borrower) that in the event of default in repayment
of the loan or a part of it, the mortgagee (lender) would realise its security
by way of attachment and sale of the collateral.628 In resolving the dilemma,
the Court in the case of Coast Brick & Tile Works and others v Premchand Raichad
and another629 held that sections 58 of the RTA provided a code in relation to
attestation of instruments required to be registered under the Act; that sections
1(2) and section 58 of that Act had to supersede, in relation to and under the
Act, the requirements of section 59 of the ITPA.

624 Ibid, section 65(1) states in part “…and the instrument shall, except where section 74 has by the
instrument been expressly excluded, contain a special acknowledgement that the chargor understands the effect
of that section, and the acknowledgement shall be signed by the chargor or, where the chargor is a corporation,
by one of the persons attesting the affixation of the common seal.”

625 [2002] 1 KLR 295 CA.

626
Supra, ITPA, section 59 states, in part “59. Where the principal money secured is one hundred rupees
or upwards, a mortgage can be effected only by a registered instrument signed by the mortgagor and attested by
at least two witnesses. Where the principal money secured is less than one hundred rupees, a mortgage may be
effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple
mortgage) by delivery of the property...”

627 Supra, RTA section 1(2) states: “…(2) Except so far as is expressly enacted to the contrary, no Act in
so far as it is inconsistent with this Act shall apply or be deemed to apply to land, whether freehold or
leasehold, which is under the operation of this Act….”

628 The application of sections 59 and 69(4) to mortgages was confirmed by the High Court in the case of
Eccon Construction & Engineering Ltd v Giro Commercial Bank Ltd and another, High Court civil case number 371
of 2003.

629 [1964] EA 187.

 This view was upheld when the matter went on appeal to the Privy Council,
which held that section 58 of the RTA taken with section 1(2), overrode the
provisions of section 59 of the ITPA. This meant that execution of the charge in
accordance with section 58 of the RTA sufficed and the charge was not invalidated
by want of compliance with section 59 of the ITPA. This view was followed in
subsequent cases, notably in Guardial Singh Ghataurhael v The Delphis Bank
Limited630 and in Labelle International Limited v Fidelity Commercial Bank.631 In
the latter case, referring to section 1(2) of the RTA, Justice Nyamu concluded
that since section 69(4) of the ITPA is inconsistent with section 58 of the RTA,
the former did not apply concerning attestation or witnessing, and the latter
prevails.632
Further, the security document must properly describe the parties thereto and
their addresses. In the case of Simiyu v Housing Finance Company of Kenya Ltd,
Justice Ringera held that there was no proper statutory notice or notification
of sale to the plaintiff because the post office box number used by the first
and the second defendants did not belong to the plaintiff. 633The document must
also contain a number of covenants including the covenant to repay; the covenant
to keep the property in good repair and condition; and the redemption clause.
Securitisation process begins when the borrower applies for a loan to the
bank. The bank then conducts its due diligence, which entails assessing the
credit-worthiness of the borrower and valuing the immovable property. The purpose
of valuation of the property is to establish the mortgage value of the property.
If the bank is convinced that the borrower is credit worthy, the bank then
prepares a loan facility letter of offer setting out the terms and conditions
under which the loan is offered.
Ordinarily, the letter of offer specifies the details of the parties; the loan
amount offered; the mode of repayment of the loan; the repayment period; rate of
interest, if any; particulars of property to be mortgaged; and the nature of the
mortgage or charge to be created. The borrower signs the letter of offer if he
is agreeable to the terms of the loan. The lenders’ advocate also drafts the
security document, that is, either a charge or mortgage, depending on the regime
of law under which the immovable property is registered.
As an advocate acting for the lender, the advocate would be expected, as part
of his due diligence exercise, to conduct both official and historical search of
the property to be used as collateral; and obtain title documents from the
borrower. Additionally, in a bid to clarify issues with the borrower, he is also
expected to send requisitions to the borrower; confirm the capacity of the
borrower to create a mortgage, for instance, whether the companies’ memorandum
and articles of association empower the Board of Directors to borrow. If there
is a resolution by the Board to borrow, once the security document is drafted,
he is supposed to send it to the borrower for approval by the borrower. The
borrower can comment on the draft security and send it back to the lender’s
advocate for engrossing, that is, adopting the comments made by the borrower.
The lender’s advocate then sends the security document to the borrower for
execution. Where consent to use the property as collateral is required, the

630 [2003] LLR 2291 (CCK).

631 [2003] 2 EA 541.

632 See also the case of Sophia House Limited v Barclays Bank of Kenya [2005] eKLR. In this case, the
plaintiffs sought to restrain the defendants from exercising their right of possession over the suit property
on grounds that the charge was invalid for failing to comply with the mandatory requirements for attestation
under sections 59 and 69 of ITPA. The court held that “…I find that the charge in the case before this Court
is attested before an advocate in compliance with section 58 of the Registration of Titles Act, and that
therefore, it is valid.”

633 [2001] 2 EA 540.

borrower must obtain and forward to the lender’s advocate the necessary consents.
The lender, once he obtains an independent legal advice, may execute the security
document.
The documents are then lodged for registration at the Lands Office. The
lender’s advocate then forwards the registered documents to the lender and obtains
a cheque for the loan amount for transmission to the borrower’s advocate. Once
the borrower repays the loan, the lender’s advocate gets the lender to sign
reconveyance or discharge of charge. The borrower’s advocate equally has a role
to play in the lending process. He obtains any necessary consent; forwards title
documents to the lender’s advocate on the lender’s advocate’s undertaking to
facilitate payment of the loan and to use the documents for the limited purpose
of charging or mortgaging.
The borrower’s advocate also approves the draft mortgage or charge and gets
the borrower to execute the same. Once the borrower repays the loan amount, the
borrower’s advocate drafts a reconveyance or discharge of charge and forwards to
the lender for execution by the lender. The borrower’s advocate then registers
the reconveyance or the discharge of charge at the lands registry.

7.6 REMEDIES OF MORTGAGEES AND CHARGEES

The provisions of sections 106(2) and 106(3) of the Land Registration Act
recognise and preserve remedies arising from mortgages and charges created under
the Registered Land Act (Repealed) and Indian Transfer Property Act (Repealed).

7.6.1 UNDER REGISTERED LAND ACT (REPEALED)

When a borrower fails to pay any sums owing under a charge, the lender is entitled
to specific reliefs which are statutorily recognised. Below is a discussion of
some of the remedies:

7.61.1 Statutory Power of Sale

Realization of security by way of statutory power of sale begins by the lender
serving the borrower with a statutory notice. Pursuant to section 74(1) of the
Registered Land Act (Repealed), if default is made in the payment of the principal
sum or of interest or any other periodical payment or any part of it, the charge
may serve on the chargor notice in writing to pay the money owing.634 If the
chargor does not comply with the statutory notice within three months of the date
of service, the chargee may sell the charged property.635 The notice must refer
to three months from receipt of the notice, but not three months from the date
of the notice.636
The notice can be served on the borrower personally; or left at his last place
of residence or business; or it may be sent by registered post at his last known
postal address.637 It may be prudent to emphasise that certain cases have turned
on the issue of the postal address used. For instance, in Simiyu v Housing Finance
Company of Kenya, the Court held that there was no proper statutory notice or
notification of sale because the post office box number used by the first and
second defendants did not belong to the plaintiff. 638

634 Supra, RLA, section 74(1).

635 Ibid, section 74(2).

636 See Kyangavo v Kenya Commercial Bank Limited and another [2004] 1 KLR 126.

637 Supra, RLA section 153 .

638 [2001] 2 EA 540.

 There is a procedure followed before selling the property. The sale is done
by way of public auction, except when parties reserved the right to sell by
private treaty and such agreement is sanctioned by Court.639 At the expiry of the
three-month statutory period, if the chargor is still in default, the chargee
advocate instructs auctioneers to realise the security. The auctioneers are
required to write to the owner of the charged property, giving such owner not
less than forty five days’ notice within which to redeem the property by payment
of the amount due as set out in the letter of instruction. If forty five days
expire and the owner has not paid, then the auctioneer is required to give at
least fourteen days’ notice for the sale of the property (notification of sale).640
In total, the earliest period within which the property may be sold would
appear to be about 59 days, which allow for 14 days’ notice given on expiry of
the 45 days’ notice. In the case of Dr. Simon W Chege v Paramount Bank of Kenya
Limited,641 the court reaffirmed that a sale can only take place after 14 days of
the advertisement.642 Not all scheduled sales materialize; there are instances
when a sale scheduled to take place on expiry of the 14 day notification period,
aborts. There is the question whether a subsequent sale of property may be
properly done relying on the previous statutory notice and notification of sale.
Justice Njagi has held as follows in this regard:
I share the view of Justice Onyango in Rai v Standard Chartered Bank (K) Ltd when he
says that the notification of sale need not be given every time. But advertisements
need to be done afresh every time instructions are received by the auctioneer, and
the sale should be at least 14 days after the first newspaper advertisement…. 643
Contemporaneously, the auctioneer should advertise, in a newspaper of nationwide
circulation, of the sale of the charged property. In terms of rule 16 of the
Auctioneers Rules, 1997, the advertisement should specify the date, time and
place of the proposed sale; the conditions of sale or where they may be obtained;
the time for viewing of the property to be sold; and all information in the court
warrant or letter of instruction, except the amount to be recovered. It should
also be stated whether the sale is subject to a reserve price.

7.6.1.2 Appointment of a Receiver

Appointment of a receiver is sanctioned by section 74(2) of the RLA. Just like
in a statutory power of sale, the chargee must issue three month statutory notice
to the chargor and only in the event of default may the receiver be appointed by
the chargee in writing. Whereas the chargee appoints the receiver, for all intents
and purposes, the receiver is construed as an agent of the chargor. The
justification for this has been expounded by Gower and Davies as follows:

639 Supra, RLA, section 77 states: “77. (1) A chargee exercising his power of sale shall act in good faith
and have regard to the interests of the chargor, and may sell or concur with any person in selling the charged
land, lease or charge, or any part thereof, together or in lots, by public auction through a licensed auctioneer
for a sum payable in one amount or by instalments, subject to such reserve price and conditions of sale as the
chargee thinks fit, with power to buy in at the auction and to resell by public auction without being answerable
for any loss occasioned thereby, and may himself bid at any auction.”

640 Auctioneer Rules, 1997, Rule 15 states: “upon receipt of a court warrant or letter of instruction the
auctioneer shall in the case of immovable property…(d) give in writing to the owner of the property a notice
of not less than forty five days within which the owner may redeem the property by payment of the amount set
forth in the court warrant or letter of instruction; (e) on expiry of the period of notice without payment
arrange sale of the property not earlier than fourteen days after the first newspaper advertisement.”

641 Milimani civil suit number 360 of 2001. Also, judgment of Onyango Otieno, J (as he then was), in
Nathakal M Rai v Standard Chartered bank (K) Limited, Milimani civil case number 830 of 1999.

642 See also Trust Bank Limited v Eros Chemist Ltd and another, civil appeal number 133 of 1999 (UR).

643 See Kyangavo v Kenya Commercial Bank Limited and another [2004] 1 KLR 126 at 142.
 An administrative receiver might be considered to be the agent of those who appointed
him but this is not the case… (he is) the agent of the company. The reason for this
is to avoid those who appointed the administrative receiver being treated as mortgagees
in possession or being held liable for the receiver’s acts which would be the case
were the receiver to be treated as their agent. As many have pointed out, the
receiver’s agency is a peculiar form of agency. This is because the primary
responsibility of the receiver is to protect the interests of the security holders
and to realize the charged assets for their benefit.
The receiver is empowered to demand and recover all the income of which he is
appointed receiver, appropriate the funds received towards payment of the debt
and incidental charges and to account for the funds.644

7.6.1.3 Suit to Recover the Money Secured

A chargee may institute a suit against the chargor to recover the debt. Section
74(3) of the RLA sanctions this. However, the exercise of this remedy is limited
to instances where the charged property is partly or wholly destroyed; or is
rendered insufficient; or the chargor wilfully or by his act makes the chargee
be deprived of the security; and the chargor, after being issued with a sufficient
notice, fails to provide a further security. Nevertheless, the chargee has to
issue the chargee with three months statutory notice before exercising this
right. Moreover, the court has the discretion to stay such a suit till such a
time when the chargee has exercised all the other remedies available to him.
Noteworthy, the RLA outlaws the remedies of foreclosure and the right of
possession.645

7.6.2 Under Indian Transfer of Property Act (Repealed)

The ITPA has availed various remedies, to the mortgagee or the chargee in the
event of default by the mortgagor or Chargor. Some of the remedies are a kin to
those already discussed under the RLA.

7.6.2.1 Statutory Power of Sale

The procedure for the exercising of this remedy is provided for in section 69 of
the ITPA. Just like in the RLA, the power to exercise this remedy arises only
after the mortgagor or chargor is in default and an appropriate valid statutory
notice has been served upon him which is not heeded. The mortgage deed or charge
deed must itself be valid and enforceable. The mortgagor must have signed the
deed and his signature attested to as required.646 Whereas the RLA recognises only
a sale by public auction as the norm and private treaty as the exception when it
is reserved in the charge and sanctioned by court, the ITPA permits both the sale
by public auction and by private treaty as the norm and even the mortgagee may
buy the security.647
In the order of priority, the proceeds from the sale are used to clear prior
encumberances, expenses of sale, mortgage debt and interest, subsequent

644 Supra, RLA, section 76.

645 Supra, RLA section 80 states: “80. For the avoidance of doubt, it is hereby declared that the chargee
shall not be entitled to foreclose, nor to enter into possession of the charged land or the land comprised in
a charged lease or to receive the rents and profits thereof by reason only that default has been made in the
payment of the principal sum or of any interest or other periodical payment or of any part thereof or in the
performance or observance of any agreement expressed or implied in the charge.”

646 Eros Chemist v Trust Bank [2000] 2 EA 550.

647 See Maranya v NBK Ltd [1995-98] 1 EA 177;Cuckmere Brick Co. Ltd v Mutual Finance [1971] 2 All E R 633.
encumberances, and the balance paid to the mortgagor. The statutory power of sale
and the procedure for exercising such a remedy by the chargee is replicated in
section 90 of the Land Act as follows:
(1). If a chargor is in default of any obligation, fails to pay interest or any
other periodic payment or any part thereof due under any charge or in the
performance or observation of any covenant, express or implied, in any charge, and
continues to be default for one month, the chargee may serve on the chargor a
notice, in writing, to pay the money owing or to perform and observe the agreement
as the case may be;
(2). The notice required by subsection (1) shall adequately inform the recipient
of the following matters-
(a) the nature and extent of the default by the chargor;
(b) if the default consists of the non-payment of any money due under the charge,
the amount that must be paid to rectify the default and the time, being not
less than three months, by the end of which the payment in default must have
been completed;
(c) if the default consists of the failure to perform or observe any covenant,
express or implied, in the charge, the thing the chargor must do or desist from
doing so as to rectify the default and the time, being not less than two months,
by the end of which the default must have been rectified;
(d) the consequence that if the default is not rectified within the time specified
in the notice, the chargee will proceed to exercise any of the remedies referred
to in this section in accordance with the procedures provided for in this sub-
part; and
(e) the right of the chargor in respect of certain remedies to apply to the court
for relief against those remedies.
(3). If the chargor does not comply within two months after the date of service
of the notice under, subsection (1), the chargee may –
(a) sue the chargor for any money due and owing under the charge;
(b) appoint a receiver of the income of the charged land;
(c) lease the charged land, or if the charge is of a lease, sublease the land;
(d) enter into possession of the charged land; or
(e) sell the charged land.
(4). If the charge is a charge of land held for customary land, or community land
shall be valid only if the charge is done with concurrence of members of the family
or community the chargee may-
(a) appoint a receiver of the income of the charged land;
(b) apply to the court for an order to–
i. lease the charged land or if the charge is of a lease, sublease the land or
enter into possession of the charged land;
ii. sell the charged land to any person or group of persons referred to in the
law relating to community land.

7.6.2.2 Appointment of a Receiver

This remedy is exercised in the same manner as in the case of statutory power of
sale. The mortgagee appoints the receiver after the power of sale has arisen.
The mortgagee must be having the power to sale already. The two powers are however
independent and mortgagee can sell even after he has appointed a receiver. The
receiver though appointed by the mortgagee is an agent of the mortgagor and he
is responsible for his deeds. The mortgagor is responsible for the receiver’s
acts and default. The receiver, though, is accountable to the mortgagee. His duty
is mainly to collect the income and profits of the property but he also has a
collateral duty to keep and maintain the property. He will thus insure and repair
the same.
In the order of priority, the receiver appropriates the monies or profits he
collects to discharge rent, rates, taxes and other outgoings, reduce all priority
payments and debts, pay himself, insurance and for repairs, pay interest on the
principal, pay the principal sum, and to pay the residue to the mortgagor. Under
the Land Act the power to appoint a receiver is recognised in section 90(3)(b).

7.6.2.3 Foreclosure
This is the mortgagee’s right to obtain a court decree barring the mortgagor from
ever redeeming the mortgage. It is a legal term which implies that the relief
given by equity against forfeiture of the property is withdrawn. The mortgagee
can only exercise this remedy after the mortgage money is due and the mortgagor
has not obtained any court order to redeem the security. This remedy is not
available under the RLA. Section 89(1) of the Land Act prohibits foreclosure by
stating that: “Any rule of law, written or unwritten, entitling a chargee to
foreclose the equity of redemption in charged land is prohibited.”648

7.6.2.4 Suit on Covenant to Repay

This is a right available on the basis of the contractual rights under the
mortgage or charge. The mortgagee sues to enforce the mortgagor’s covenant to
repay. The suit is to help recover the deficiency or the shortfall of the amount
due. The conditions applicable to this remedy are largely similar to those already
discussed under the RLA.649 Section 90(3)(a) of the Land Act recognises this
remedy.

7.6.2.5 Right to Take Possession

This remedy is unique to the ITPA and does not avail itself to the RLA charge.
It is mostly available to usufructuary mortgagees. In this instance, the mortgagee
enters into possession of the security and exercises rights as if he was
mortgagor. The mortgagee acquires the rights and duties of the mortgagor with,
however, the liability to account for any damage to the security. The right to
take possession is recognised under section 90(3)(d) of the Land Act.

7.6.3 UNDER THE NEW LAND LAWS REGIME

Section 90(3) of the Land Act clearly outlines the available remedies reliefs
available in the event of default. Noting that they are more or less the same
with as discussed above, this section will help with pointing out the relevant
sections of the Land Act that will provide for the remedies available to the
lender:

7.6.3.1 Statutory Power of Sale650

For this power to be exercises the borrower must have signed the instrument and
the signature must have been attested as required by law. The instrument must
bear a certificate by the Advocate in whose presence it was executed stating that
he has explained to the borrower the effect of the instrument. The power is
exercisable where:

648 Section 89(1) of the Land Act.

649 Supra, ITPA, section 68.

650 See section 96(1) of the Land Act.

 (i). There is default in payment and notice has been given in accordance with the
applicable laws;651
(ii) Some of the interest is in arrears and have been unpaid for a period exceeding
two months;
(iii) There is breach of some other covenant by the chargor.
The lender must always act in good faith and with reasonable care in selling the
property. The proceeds of the sales should be discharged as follows:
(i) Prior encumbrances;
(ii) Expenses connected with the sale;
(iii) Charge Debt and interest own to lender;
(iv) Subsequent encumbrances;
(v) The balance, if any, is given to the borrower.

7.6.3.2 Appointment of a receiver652

The power to appoint a receiver over a charged property is implied on the security
document or instrument. Despite the fact that notice has to be given in accordance
with section 90(1), the Chargee has to wait for a further thirty days before
appointing one.653 This has to be by way of writing and the receiver will be
deemed to be the chargor’s agent. The basic functions of the receiver includes:
(i) Payment of rents, rates, and taxes on property;
(ii) Reduction of payment that rank prior to the Security of which he is the
appointed receiver;
(iii) Payment of his (Receiver) commission;
(iv) Payment of interest on the principal sum;
(v) Discharge of the principal sum if so directed by the lender;
(vi) Any residue of the sums left to be accounted to the borrower.

7.6.3.3 Suit for foreclosure

Despite the fact that is it is rarely used in practice, it requires an order form
the court from barring the borrower from ever redeeming his property. It
extinguishes the borrower’s equity of redemption. The court orders that the
lender becomes the owner of the property and discharges the debt any proceeds of
sale shall belong to the lender.

7.6.3.4 Suit on the Covenant to Repay

This remedy is normally available on the terms created on the security document
or instrument that is the charge. The chargee sues to enforce the chargor covenant
to repay. The chargee can only sue for the deficiency on the amount owed after
sale.

7.6.3.5 Right to take Possession654

651 See Land Act, section 96(2) and section 90(1).

652 See section 92 of the Land Act.

653 Section 92(2) of the Land Act states ‘Before appointing a receiver under this section, the chargee
shall serve a notice in the prescribed form on the chargor and shall not proceed with the appointment until a
period of thirty days, from the date of the service of that notice, has elapsed’.

654 See section 94 of the Land Act.

Upon expiry of prior notices issued, the chargee can serve notice to the chargor
to enter and take possession at least one month after service of notice. The
entry must be peaceful where by achieving this; the chargee takes management of
the property.

7.6.3.6 Leasing655
Where a charge has exercised his right to appoint a receiver, unless the charge
instrument states otherwise may grant leases in respect to the charged property
and accept a surrender of lease and execute the lease in favour of the charger.
It is important to note that before exercising this remedy, a thirty days notice
should have lapsed after notice has been given before execution of the lease in
place of the chargor

7.7 CONCLUSION
Mortgages and charges are securities for advances of money by the lending bank
to the vendor. Under RLA and RTA, the security is called a charge. Under GLA and
LTA, the security is called a mortgage. The securities can be legal or equitable.
The Land Registration Act refers to the security as a charge. A mortgage
conditionally conveys interest in land to secure repayment of a debt. A charge
gives the chargee the right to repayment of the debt without transferring title
to the land.
Whereas charges are limited in form, there are varied forms of mortgages
depending on the nature of the interest that they confer. Charges and mortgages
should be prepared in a way as to satisfy the statutory and common law
requirements. Reliefs available to the lender in the event of default are set
out in section 90(3) of the Land Act. Any of these remedies are exercisable only
upon compliance with the procedure set out in sections 90(1) and 90(2) of the
Land Act.

CHAPTER EIGHT

LAND TRIBUNALS
8.1 INTRODUCTION
This Chapter analyses 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.

8.2 THE NATIONAL ENVIRONMENT TRIBUNAL

Environmental management ensures sustainable utilisation 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.656 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

655 See section 93 of the Land Act.

656 David Hunter et. al. (2002). International Environmental Law and Policy, 2nd Ed. New York: Foundation
Press, pp. 347-438.
its potential to meet the needs and aspirations of present and future
generations.657
The precautionary principle calls for precaution in the making of environmental
decisions where there is scientific uncertainty.658 It requires that all
reasonable measures be taken to prevent the possible deleterious environmental
consequences of development activities. The need for Environmental Impact
Assessment (EIA) 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.659 While the principle of public participation ensures environmental
democracy, ensuring participation of local communities in the environment and
development decisions that affect their lives.660
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)661 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
Council662 which formulates and enforces policy standards for the protection of
the environment.663 The principal instrument of government for implementation of
environmental policies is the National Environmental Management Authority (NEMA).
NEMA supervises and co-ordinates matters that relate to the environment.664 Within
provinces and districts, the EMCA authorises the Minister (now Cabinet Secretary)
for Environment to appoint Provincial and District Committees chaired by the
respective Provincial and District Commissioners, with the mandate of discussing
and making decisions on matters that relate to proper management of the
environment within the province or district.665

657 Convention on Biological Diversity, 1992, article 2.

658 Goran Hyden and John Mugabe (1999), “Governance and Sustainable Development in Africa,” in H.W.O Okoth
Ogendo et al, Governing the Environment, Nairobi: Acts Press, 35.

659 David Hunter et. al. (2002). International Environmental Law and Policy, 2nd Ed. New York: Foundation
Press, page 412.

660 Ibid.

661 No. 8 of 1999.

662 Section 4 of EMCA states: “(1) There is established a council to be known as the National Environment
Council (hereinafter referred to as the “Council”) which shall consist of—(a) the Minister (now Cabinet
Secretary) who shall be the chairman; (b) the Permanent Secretaries in the Ministries for the time being
responsible for the matters specified in the First Schedule; (c) two representatives of public universities in
Kenya to be appointed by the Minister (now Cabinet Secretary); (d) two representatives of specialised research
institutions in Kenya to be appointed by the Minister (now Cabinet Secretary); (e) three representatives of
the business community, to be appointed by the Minister (now Cabinet Secretary), one of whom shall be a
representative of oil marketing companies; (f) two representatives of Non-Governmental Organisations active in
the environmental field to be appointed by the Minister (now Cabinet Secretary); (g) the Director-General who
shall be the secretary; and (h) such number of other members as may, from time, be co-opted by the Minister
(now Cabinet Secretary) to be members of the Council.”

663 Ibid, section 5 states: “(a) The Council shall—(a) be responsible for policy formulation and directions
for purposes of this Act;(b) set national goals and objectives and determine policies and priorities for the
protection of the environment;(c) promote co-operation among public departments, local authorities, private
sector, Non-Governmental Organisations and such other organisations engaged in environmental protection
programmes; and(d) perform such other functions as are assigned under this Act.”

664
Ibid, section 9 states: “(1) The object and purpose for which the Authority is established is to
exercise general supervision and co-ordination over all matters relating to the environment and to be the
principal instrument of Government in the implementation of all policies relating to the environment.”

665 See EMCA, section 29.

 EMCA also establishes specialised committees such as the Technical Advisory
Committee which advises NEMA on Environmental Impact Assessment Reports;666
National Environmental Action Plan Committee mandated to develop 5-year national
environmental action plans for consideration and adoption by Parliament;667 and
the Standards and Enforcement Review Committee which advises on water quality
and standards and procedure for discharging effluents into the environment.668
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.669 NET hears appeals from decisions
of the Director General, NEMA or Committees of NEMA.670 The core principle
governing environmental protection in Kenya is the principle of sustainable
development which is facilitated by the codified public interest litigation in
section 3(4) of EMCA.671
In the execution of its mandate, the National Environmental Tribunal (NET)
has resolved disputes touching on various aspects of the environment. In the case
of James Mahinda and others v Director General, NEMA and another,672 the applicant
sought that the second respondent, Universal Corporation Ltd, be stopped from
operating its factory within the neighbourhood 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, vapour and
noise; and that the company discharged liquid effluent into open drains.673 The

666 Ibid, section 61 states: “The Authority may set up a technical advisory committee to advise it on
environmental impact assessment related reports and the Director-General shall prescribe the terms of reference
and rules of procedure for the technical advisory committee appointed hereunder.”

667 EMCA, Second Schedule.

668 EMCA, section 70 as read together with the Third Schedule.

669 EMCA, sections 31-36.

670 EMCA, section 129 states: “(1) Any person who is aggrieved by:— (a) a refusal to grant a licence or to
the transfer of his licence under this Act or regulations made thereunder; (b) the imposition of any condition,
limitation or restriction on his licence under this Act or regulations made thereunder; (c) the revocation,
suspension or variation of his licence under this Act or regulations made thereunder; (d) the amount of money
which he is required to pay as a fee under this Act or regulations made thereunder; (e) the imposition against
him of an environmental restoration order or environmental improvement order by the Authority under this Act
or regulations made thereunder; may within sixty days after the occurrence of the event against which he is
dissatisfied, appeal to the Tribunal in such manner as may be prescribed by the Tribunal.”

671 EMCA, section 3(4) states: “A person proceeding under subsection (3) of this section shall have the
capacity to bring an action notwithstanding that such a person cannot show that the defendant’s act or omission
has caused or is likely to cause him any personal loss or injury provided that such action— (a) is not frivolous
or vexatious; or (b) is not an abuse of the court process.” Contrast this with earlier decisions such as
Wangari Maathai v The Kenya Times Media Trust (1989) KLR 267, and Maathai and others v City Council of Nairobi
and others, civil case number 72 of 1994, where the Courts held that Professor Wangari Maathai had no locus to
bring a claim for environmental protection where she suffered no personal injury.

672 Tribunal Appeal number NET/15/2006 of 2007.

673 Ibid. The grounds of the appeal were that the said L.R. number 8325 North of Kikuyu Township was zoned
as a residential area; the second respondent emitted offensive ‘fuel oil boiler’ smoke and other vapours and
fumes into the residential property; the second respondent produced various loud and disturbing sound from
operating machines which ran 24 hours round the clock for several days; the second respondent’s workers made
a lot of noise especially when carrying out metal fabrication works at night; waste products from the second
respondent produced smoke that Actowed and flew into the neighbourhood with offensive smell; and that the smoke
and fumes irritated people’s and livestock’s noses, throats and eyes. In its amended replying affidavit dated
24 July 2007, the Director General, NEMA, the first respondent stated that it was the responsibility of the
second respondent to ensure that its project was environmentally sustainable with adequate mitigation measures.
That the mitigation measures had to take into consideration the local community’s concerns and also ensure
that their project was in conformity with the precautionary principle, sustainable development and sound
environmental management principles. The second respondent, in its replying affidavit stated that it carried
out its operation in strict compliance with Special Condition set out in the title document and pursuant to
the licence granted to it by NEMA; that it had installed systems as required by law to ensure that no
offensive/pollutive emissions were released into the air and factory neighbourhood; that its workers carried
out their work inside its buildings and could therefore not be heard from outside; that its factory rubbish
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, 2003674 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. 675
The case of Nakumatt Holdings Limited v Director General, NEMA and another 676
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 LR 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 eut 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 World Health Organization (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

was disposed off in accordance with strict procedures as required by law and to prove this he produced an
Agreement and Contract Review with Biosyte Waste Management System, List of Waste disposed off, Certificate of
Waste Disposal and Incineration, Destruction Certificates, Invoices and Receipts for payment of disposal
services and contract with KEMRI; that the noise emitted from its factory was within acceptable limits; and
that it had approved systems in place for the disposal of factory water effluent which was not discharged into
open drainage running along the road.

674 LN number 101 of 2003.

675 Ibid, Regulations 9(1) and 9(2).

676 Tribunal Appeal No. NET 10/02/2005.

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 only 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 neighbours, including the appellant, thus the appellant’s claim that it
had been denied of an opportunity to provide comments on the project was
unsustainable.
However, even more instructive on the need for an EIA study vis-à-vis EIA
Project Report before undertaking a development is the case of Narok County
Council and another v NEMA and others.677 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 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 Act678 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;679 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

677 Tribunal Appeal No. NET/07 of 2006.

678 Chapter 302, Laws of Kenya.

679 In terms of the Physical Planning Act (Chapter 286) Laws of Kenya.
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-à-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.
Further, in the case of A Abdallah, Chairman, Donholm Phase 5 Residents’
Association and another v Director General, National Environment Management
Authority (NEMA) and another,680 the appellants sought orders from the Tribunal
to stop the second respondent, Jane Ngonyo, from constructing storeyed apartments
in their neighbourhood in Donholm, and to cancel an EIA licence issued to the
developer and to order demolition of the second respondent’s building.681
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 licence, 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 licence 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
licence.

680 Tribunal Appeal No. NET/38/2009.

681 The second respondent was constructing a 4-storey apartment in an area that had bungalows of two
bedrooms and bed-sitter. The grounds of the appeal were that NEMA issued an EIA licence to the second respondent
without the second respondent’s consultation with residents; the second respondent was constructing a 4-storey
apartment without parking provision and the tenants would block parking facilities for other tenants; the
second respondent was constructing apartments of twenty four families that would need a lot of water and sewer
services thereby overburdening the existing water and sewer services; the change of user obtained related to
a different person from the second respondent and the conditions for obtaining the change of user were not
being complied with; and that the storey building would block some houses from sunlight in the neighbourhood.
The respondents opposed the appeal on grounds that NEMA is authorized to issue EIA licence; that when the first
respondent received an EIA project report from the second respondent, it sent out and consulted with lead
agencies over the project report and received no objection to the development; that the second respondent
obtained change of user to the project; and that issues raised by the appellants were outside the jurisdiction
of the first respondent, but within the City Council’s jurisdiction.
 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
the 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.
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.682 If
NEMA is satisfied with the project description and the proposed environmental
management plan, it 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 licence issued accordingly.
However, if a party is aggrieved with the approval or issuance of the licence
by NEMA, and files an appeal with the Tribunal, the Tribunal is obliged under
section 129(4) of EMCA, to issue a stop order, and the status quo of any matter
or activity, which is the subject matter of the appeal, is maintained until the
appeal is 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 County Government
of Nairobi. Such approved proposals, pursuant to the provisions of the City of
Nairobi (Building) By-Laws, 1948,683 and Local Government (Adoptive by-laws)
Building Order, 1968,684 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
thereunder after such lapse would be illegal;685 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 project or
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 licence under section 58 was
false, inaccurate or intended to mislead. Such powers are undertaken mostly where
there is a full EIA study.

8.3 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, to handle disputes

682 See Regulations 7 and 17(1) of the Environment (Impact Assessment and Audit) Regulations, 2003.

683 G.N. 313 of 1949.

684 L.N. number 15 of 1969.

685 See Associated Motors v Director General NEMA and another, Tribunal Appeal No. NET 29 of 2008.
relating to controlled tenancies.686 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, or is specified by the Minister (now Cabinet
Secretary) to be a controlled tenancy.687 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,688 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 Justice Madan stated as
follows:
“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.689 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.690
Reference of the matter to the Tribunal automatically stays the tenancy notice
till the Tribunal determines the issue.691 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.692
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

686 Chapter 301, Laws of Kenya.

687 Section 2 of the Landlords and Tenant (Shops, Hotels and Catering Establishment) Act (Chapter 301) Laws
of Kenya.

688 [1972] EA 512.

689 Section 4 of the Landlords and Tenant (Shops, Hotels and Catering Establishment) Act.

690 Section 6(1). of the Act. The Tribunal is required to notify the party against whom the reference is
made of the reference within seven days of the receipt of the reference.

691 Ibid.

692 (1976) KLR 25.

issued. This issue was considered in the case of Kobil Petroleum Limited v Almost
Magic Merchants Limited.693 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.694
Relying on the case of Auto Engineering Ltd v Gonella and another,695 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 lies in the High Court. The
jurisdiction of the High Court in controlled tenancies is appellate, not original.

693 Nairobi High Court civil appeal number 931 of 2003.

694 See Rehorn v Barry [1956] 2 All ER 742.

695 (1978) KLR 248.

This was emphasised in the case of Mark Wachira and others v Kenya Road Services
Ltd, 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.696 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
make 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, the High Court was
emphatic that the primary jurisdiction to resolve controlled tenancy dispute
vests with the Business Premises Tribunal.697That 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 Emporium698 on, inter alia, ground that section
15(4) of the Act rendered the High Court decision in the matter of controlled
tenancy, final,699 thus the Court of Appeal lacked jurisdiction to entertain the
appeal.

8.4 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.700 The Tribunal that

696 Nairobi HCC (ELC) number 1841 of 2007.

697 Nairobi High Court civil case number 2974 of 1991.

698 Nairobi CA civil application number 74 of 2007. In this case, the applicant, David Thiongo, who traded
in the name of Welcome General Stores was a tenant of Market Fancy Emporium, the respondent, under a controlled
tenancy. On 27 May 2004, the respondent issued a notice notifying the applicant of its intention to terminate
the tenancy on the ground that the respondent itself wanted to occupy the premise for a period of more than
one year. Whereas the applicant notified the respondent that he would not comply with the notice, the applicant
did not make any reference to the Tribunal, which, the respondent contended meant that the termination notice
took effect. The respondent then filed an application for eviction in the magistrate’s court. Whereas the
respondent filed a Defence, the magistrate struck out the Defence and entered a summary judgment in favour of
the respondent, thereby prompting an appeal by the applicant to the High Court and simultaneously sought an
order for stay of the magistrate’s court order pending the hearing of the appeal. The High Court refused to
grant the Order for stay thereby prompting the appeal to the Court of Appeal and seeking an order for injunction
against the respondent from evicting the applicant from the suit premises.

699 Section 15(4) of the Act states: “Provided that the decision of the High Court on any appeal under this
Act shall be final and shall not be subject to further appeal.”

700 See Constitution of the Republic of Kenya, article 40(3).

formerly adjudicated over the disputes relating to land compulsorily acquired is
the Land Acquisition and Compensation Tribunal.
Under the now repealed Land Acquisition Act,701 when the Minister (now Cabinet
Secretary) for Lands identifies suitable land for compulsory acquisition, the
Minister 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.702 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. 703
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.704 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.705
However, not all interested parties to land compulsorily acquired are satisfied
with the award of compensation. The law recognised this reality and in section
29, 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 lay 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.706
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.707
In the case of Samwel Wainaina Muiruri v Commissioner of Lands,708 the
Commissioner of Lands, vide Gazette Notices numbers 6034 and 6035 dated 11 July
2008, sought to compulsorily acquire part of Plot LR number 209/1534 registered
in the name of the applicant, Samuel Wainaina Muiruri. The portion of land that
was meant to be acquired measured 0.0716 ha, which the Commissioner of Lands
assessed at KShs 16,525,525. Valuation was undertaken on 14 October 2008 by
qualifued valuers who described the acquired land as measuring 0.016 ha and as

701 Chapter 295, Laws of Kenya.

702 Section 7 of the Land Acquisition (Repealed) Act.

703 Section 9 of the Land Acquisition (Repealed) Act.

704 Ibid.

705 Section 11 of the Land Acquisition (Repealed) Act.

706 Section 29 of the Land Acquisition (Repealed) Act.

707 See Ocean Plaza Limited v Attorney-General [2000] 1 KLR (E&L)

708 LACT case number 20 of 2009.

a leasehold interest without encumbrances. According to the applicant, the
acquired land had been developed and it hosted a big animal feed shop, namely,
Pangani Animal Feeds. Acquisition would therefore lead to demolition of the
building and relocation of the same. The applicant further argued 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
alleged 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 analysing 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.709 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 a 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 of KShs 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 not 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 could
be due from the date of the award.
In the case of Josephat Ndung’u Gachchio v the Commissioner of Lands,710 the
Commissioner of Lands, on 11 July 2008, compulsorily acquired LR 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 qualified 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

709 No sale agreement or transfer was presented to the Tribunal by the applicant.

710 LACT case number 34 of 2009.

claimed KShs 2,563,220 as the total value of the land, improvements and incurred
project costs. The applicant relied on a valuation report prepared by other
qualified 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,711 the
Commissioner of Lands, on 11 July 2008, acquired Plot LR 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 qualified
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 and 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 Act (Repealed) 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 Act (Repealed) can
help guide the National Land Commission in exercising their power under Part VIII
of the and Act.

8.5 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 or Committees of NEMA. Most common environmental disputes handled
by the Tribunal seek to challenge approvals of EIA project report vis-à-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, it 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,

711 LACT number 36 of 2009 (Consolidated with LACT number 35 of 2009 – Lydia Wanjiku Gathecha v Commissioner
of Lands and LACT number 37 of 2009 – Mr. and Mrs Michale M. Njuguna v the Commissioner of Lands).
or if it is in writing, is for a period not exceeding five years, is determinable
within five years from commencement, 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 lay 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.

CHAPTER NINE

COMPARATIVE ANALYSES OF REGIONAL LAND LAW FRAMEWORKS

INTRODUCTION
This Chapter undertakes a review of the principles of land ownership, access,
use and management in Uganda, Tanzania and South Sudan. The Chapter traces the
development of land law principles in the three countries from the pre-colonial
period to the present day. The Chapter identifies the tenure systems recognized
in the three countries, the legislative underpinnings informing the tenure
systems, and the dispute resolution mechanisms recognized under the tenure
systems. It also identifies the public authorities entrusted with the mandate of
shepherding the legislative regimes on land in both countries and the scope of
their respective mandates. The Chapter appreciates that the tenure systems and
the underlying statutory laws on land in the three countries are not flawless
and it thus attempts a critique of the tenure systems with a view to determining
areas for improvement. Each country’s tenure system is discussed and critiqued
in turn.

PRINCIPLES OF LAND LAW IN UGANDA

Land tenure systems in Uganda can be studied in two phases – pre-independence
land tenure system phase and post-independence land tenure system phase. At
independence, Uganda had three broad tenure systems. The first one was Mailo
tenure system, a quasi-freehold tenure that applied to the Kingdom of Buganda.
Mailo land referred to land allocated to chiefs and notables in the Buganda
Kingdom as their private property in perpetuity.712 The second tenure system was
freehold tenure, which were in three forms, to wit, freeholds created under the
Crown Land Ordinance of 1903; the ‘native’ freeholds of Ankole and Toro; and the
‘adjudicated’ freeholds. The Crown Land Ordinance of 1903 empowered the Governor
to lobby Baganda chiefs to dispose of their Mailo land freehold tenure. This
practice however stopped in 1915 when the Colonial Office in London decreed that
‘non-natives’ could only own land in Uganda on leasehold basis subject to
development conditions.713 ‘Native’ freeholds emanated from the Toro Agreement
of 1900 and the Ankole Agreement of 1901 under which 255 square miles of the
kingdoms of Toro and Ankole were allocated to the King and a few of the most
senior chiefs as a private property and 122 square miles were allocated to them
as official estates.
The freehold grants were made from Crown Lands Ordinance of 1903, and were
subject to the Crown Land Ordinance of 1903 and the rights of customary tenants.714
Adjudicated freeholds were created among the Kigezi, Bugisu and Ankole
registration pilot schemes to encourage individual ownership of land among the
indigenous people.715 Holders of adjudicated land were then issued with
registerable titles under the Registration of Titles Act. Lastly, there was
customary tenure, prevalent in Buganda, Bunyoro, Toro and Ankole, and in which
land was vested in the ruler or owner or trustee of land for members of the
tribe.
In the post-independence Uganda, land ownership is principally held pursuant
to the Constitution of the Republic of Uganda, which sets out the key principles
on land ownership in Uganda. Article 237 of the Constitution is worth pointing
out as it emphasizes that all land in Uganda is vested in the citizens of Uganda
to be owned in freehold, mailo, leasehold and customary tenure. 716 Land is equally
governed by statute law, being the Land Act717 and the Registration of Titles
Act,718 customary law, common law and principles of equity.
The Land Act concerns itself with land ownership, administration and resolution
of land disputes, while the Registration of Titles Act regulates registration
and transfer of titles to land. Ownership of land under customary law must be
consistent with written law, not repugnant to equity, natural justice, good
conscience719 and the parties to the land falling in the ambit of customary law

712 Thomas and Spencer (1938), A History of Uganda Land and Survey Department, Entebbe: Government Printers,
p. 68.

713 John T. Mugambwa (2002), Principles of Land Law in Uganda, Kampala: Fountain Publishers Ltd, p. 3.

714 Morris and Read, Uganda, the Development of its Laws and Constitution, page 46.

715 Obol-Ochola (1969), Land Law Reform in East Africa, Kampala: Milton Obote Foundation, pp. 255-64.

716 Constitution of the Republic of Uganda, article 237 states in part: “(1) Land in Uganda belongs to
the citizens of Uganda and shall vest in them in accordance with the land tenure systems provided for in this
Constitution. (2) Notwithstanding clause (1) of this article— (a) the Government or a local government may,
subject to article 26 of this Constitution, acquire land in the public interest; and the conditions governing
such acquisition shall be as prescribed by Parliament; (b) the Government or a local government as determined
by Parliament by law shall hold in trust for the people and protect natural lakes, rivers, wetlands, forest
reserves, game reserves, national parks and any land to be reserved for ecological and touristic purposes for
the common good of all citizens; (c) noncitizens may acquire leases in land in accordance with the laws
prescribed by Parliament, and the laws so prescribed shall define a noncitizen for the purposes of this
paragraph. (3) Land in Uganda shall be owned in accordance with the following land tenure systems— (a)
customary; (b) freehold; (c) mailo; and (d) leasehold. (4) On the coming into force of this Constitution— (a)
all Uganda citizens owning land under customary tenure may acquire certificates of ownership in a manner
prescribed by Parliament; and (b) land under customary tenure may be converted to freehold landownership by
registration.”

717 Chapter 227 (Act No. 16 of 1998).

718 Chapter 230 (1924).

719 Babiruga v Karegyesa and others D.R. CA No. MKA 13 of 1993 (unreported).
must not have precluded application of customary law to the land.720 Common laws
are judge-made laws as administered by the “High Court of Uganda,”721 and together
with principles of equity are applicable subject to qualifications as the
circumstances render them necessary.722 This sub-topic explores the principles
upon which land is accessed, held and managed in Uganda, as defined by the
Constitution of the Republic of Uganda, the statutory and common law, as well as
the principles of equity.

LAND OWNERSHIP, ADMINISTRATION AND DISPUTE RESOLUTION

As stated in the foregoing part of this sub-topic, the Land Act regulates land
ownership, administration and resolution of land disputes in Uganda. This part
therefore analyses the provisions of the Constitution of Uganda and the Land Act
on the basis of the listed topical functions.

Land Ownership
Taking cue from the provisions of article 237 of the Constitution of Uganda, the
Land Act identifies distinct tenure systems under which land can be accessed and
owned in Uganda. The Act recognises the government land tenure system, limited
to land that was in government use at the time that the Constitution came into
effect on 22 September 1995. Such land includes land on which there are government
offices, buildings, schools, hospitals, police and military quarters, or such
land, either compulsorily acquired by the Government, or voluntarily purchased
by the Government from a willing seller. Government land also includes natural
lakes, rivers, wetlands, forest reserves, game reserves, national parks, and any
land reserved for ecological and tourist purposes. The central and local
governments are obliged to hold in trust for the people and to protect such land
for the common good of the citizens of Uganda.723 Section 15 of the Act empowers
the central or local governments to acquire land for public use, public safety,
public order, public morality, public health and in interest of defense.724
Further, the government or local government may acquire land in the public
interest.725
It is unclear as to what constitutes and who determines ‘public interest.’
This void is open to abuse, arbitrariness and imposition of executive fiat in
compulsorily acquiring land in disguise of public interest. Worse still, there
is no express statutory provision obliging central or local governments to provide
affected interest holders in land with alternative land or the need to consult
such interested parties.
Equally recognized by the Land Act are freehold and leasehold tenure, also
known as individual tenure.726 Non-citizens may hold land only on leasehold
tenure not exceeding ninety nine years. Section 14 of the Act provides that: “(1)
A non-citizen may acquire a lease in land… (3) A non-citizen shall not be granted

720 Judicature Statute Number 13 of 1996, section 17(2).

721 Ibid, section 17(5).

722 Ibid, section 16.

723 Land Act, section 17(1).

724 Land Act, section 15(1).

725 Ibid, section 15(2).

726 According to Obol-Ochola, individualization process occurs when a person or group or family is able to
register or record freehold title to the land held customarily by the person or the group. See Obol-Ochola
(1970), Customary Law and Development in Uganda, LLM Dissertation, University of Dar es Salaam.
a lease exceeding ninety nine years.” Restricting non-citizens from owning land
in perpetuity may be applauded for curbing against landlessness.
Individualization of tenure has been argued, to increase tenure security of the
landholder thereby reducing litigation costs in land ownership related
disputes.727 Secondly, individualization of title is an incentive for
agricultural investments that gives farmers access to credit by using the land
as collateral and reduces land fragmentation into economically unviable
parcels.728
The mailo tenure is recognized under the Land Act. As stated in the preceding
parts of this Chapter, mailo tenure comprised land allotments to the Kabaka and
his chiefs following the 1900 Agreement between the Baganda Kingdom and the
British. Section 4(4) of the Land Act describes ‘mailo tenure’ as a form of
tenure which derives its legality from the Constitution and its incidents from
written law.729 The land was measured in square miles, thus the coinage, mailo.
Mailo tenure thus succeeds in excluding the rest of the population from enjoying
similar rights in land as those of the Kabaka and his chiefs. As noted by Okuku,
‘the population is not only deprived of the rights of ownership but also the
rights of occupancy.’730 Worth noting is that mailo tenure was restored by the
Land Act after it had been abolished by the Land Reform Decree of 1975. The Land
Act has therefore attempted to preserve the rights of bona fide occupants of
mailo land. Bona fide occupants of mailo land possess certificates of occupancy
and enjoy security of tenure on the land.731 A registered owner of mailo land
is entitled to ground rent, which if it remains unpaid for a period exceeding
three years, may entitle the registered owner to terminate the tenancy. 732
Under customary tenure, a community or a group bases the fundamental principle
of land ownership on collective ownership. They enjoy usufructuary rights in land
which right is transferred through inheritance. In accordance with article
237(4)(a) of the Constitution of Uganda which entitles all Ugandan citizens
owning land under customary tenure to certificates of ownership, section 4(1) of
the Land Act provides that: “any person or community holding land under customary
tenure may acquire a certificate of customary ownership.” Section 5 of the Act
reinforces the foregoing provision by providing that “any person or community
holding land under customary tenure may convert the customary tenure into
freehold.” Thus, it is apparent under the Act and the Constitution that the
ultimate aim is to transform customary tenure into individually owned estates,
held increasingly in private tenure, freehold and leasehold.
Market-based arguments such as insecurity of customary tenure in view of
collective ownership which hinders use of the land as collateral; tendency to
misuse land resources via irrational husbandry techniques such as shifting
cultivation/grazing which are inefficient and uneconomical; and land
fragmentation arising out of inheritance practices leading to uneconomic pieces

727 Barrows and Roth (1990), “Land Tenure and Investment in African Agriculture: Theory and Evidence,” in
Journal of Modern African Studies, page 268, Vol. 2.

728 Platteau J.P. (1995), Reforming Land Rights in Sub-Saharan Africa: Issues of Efficiency and Equity,
UNRISD, Discussion Paper, No. 60, Geneva.

729 John T. Mugambwa (2002), Principles of Land Law in Uganda, Kampala: Fountain Publishers Ltd, page 10.

730 Okuku J. Anthony (2006), The Land Act (1998) and Land Tenure Reform in Uganda, in Journal for Africa
Development, Vol. XXXI, No. 1, pp. 1-26 at 15.

731 Land Act, section 9(1).

732 Ibid, section 9(5).

of land have all been used to justify the transformation.733 The validity of the
foregoing justifications to reforming customary tenure have though been
downplayed by some scholars on the basis that it is a misconception that communal
tenure are generally based on collective production. Production on arable plots
is normally undertaken by individuals who are residual claimants to outputs; that
this implies that on arable plots, effort supply by individual cultivators are
likely to be appropriate.

Land Administration and Dispute Settlement

Administration of land in Uganda is decentralized from the Ministry of Lands,
Housing and Physical Planning, to the District Land Boards. The overall authority
in charge of the management of land is the Uganda Land Commission, and below it
are District Land Boards and Land Committees. The Uganda Land Commission (“the
Commission”) consists of a Chairperson and not more than four other members
appointed by the President with the approval of Parliament.734 The District Land
Boards are empowered to hold and allocate land in the district which is not owned
by any person or authority, and facilitate the registration and transfer of
interests in land.735 At the lower level, the Act establishes a Parish Land
Committee consisting of a Chairperson and three other members appointed by the
District Council on the recommendation of the Local Council.736 Land disputes
are resolved by both the Land Committees and Land Tribunals established in article
243 of the Constitution.

CRITIQUE OF THE LAND ACT

In regard to Government land, the vague definition of ‘public interest’ and the
lack of consultation or an institutional compensation mechanism to interested
parties whose land is compulsorily acquired are major shortcomings of the Land
Act.
In regard to customary tenure, the Land Act may be criticized for failing to
resolve the dilemma associated with common property. It is still difficult to
delineate communal areas such as clan land as hunting grounds. There is a lack
ofy mechanisms through which individual interests may be guaranteed within the
bigger communal interests. Further, it is unclear how one gets to acquire a
certificate of customary ownership, and once acquired, it is difficult to
ascertain the status of a certificate of ownership vis-à-vis other certificates
of title, and how the certificate of customary ownership differs from title
deeds. Further, the Act is unclear on how customary tenure may be converted to
freehold tenure.
Mailo tenure may be argued to be discriminatory. Recognition of the tenure by
the Land Act institutionalizes the vesting of ownership of mailo land to the
privileged by birth or those endowed with a measure of financial muscle.737
Further, the tenure negates the principle of making land available as a stimulant
to economic growth; rather, mailo land is availed as a right to the Kabakas and
his chiefs. Further, the Land Act fails to address the question of absentee mailo
land holders and land holders who only speculate on the land rather than putting

733 Makubuya K. (1981), ‘Land Law Reform and Rural Development in Uganda,’ in Nsimambi, A. and Katorobo,
J. (eds), Rural Rehabilitation and Development, Proceedings of the Conference on Rural Rehabilitation and
Development, held at Makerere University, September 14-18.

734 Section 20(1) of the Land Act.

735 Sections 27-30 of the Land Act.

736 Section 38 of the Land Act.

737 Mafeje, A. (1973), “Agrarian Revolution and the Land Question in Buganda,” in Institute of Social
Studies (ISS), Occasional Papers, The Hague.
it into productive use. Lastly, the concept of registerable interest is not
clearly articulated in respect of mailo tenure under the Land Act considering
that whereas a bona fide occupant is issued with certificate of ownership, it is
not lost that it is the mailo land owner that possesses the land title. This
enables the landowner to evict the bona fide occupant, who is more or less of a
tenant, and also creates overlapping claims in respect of the same parcel of land
and befuddles the definition of property rights.
The appointment of the members of the Uganda Land Commission by the President
creates an avenue for propagation of political-ethnic biases, lack of
representativeness and meritocracy. Regarding District Land Boards, the Act may
be criticized for failing to specify accountability mechanisms in place to which
members of the Board may be held answerable. Such a gap may be a recipe for
corruption and land grabbing in the process of transfer of interests in land.

PRINCIPLES OF LAND LAW IN TANZANIA

Historical Perspective
Land tenure system principles, as established through the Land Ordinance of 1923,
were only slightly changed after independence in Tanzania. For instance, under
the Land Ordinance, 1923, all declared public land was vested in the Governor.
After independence, amendments were made to vest such land in the President. The
erstwhile recognized freehold titles recognized under the Ordinance were
abolished by the Freehold Titles (Conversion) and Government Leases Act,
1963.738 Such that, until 1999, the Land Ordinance, 1923 remained the basic land
tenure and land use law in Tanzania. The Ordinance recognized customary land
rights, the so-called ‘deemed occupancy rights’ and statutory land rights, also
known as ‘granted occupancy rights.’ Granted rights of occupancy were mostly held
by the immigrants in the colonial times and were more clearly defined than ‘deemed
or customary rights of occupancy’ which colonial authorities construed as ‘public
lands’ at the disposal of colonial authorities.739
In the immediate aftermath of independence, Tanganyika’s First Five Year Plan,
largely based on a World Bank Report,740 recommended the integration of
traditional peasants and pastoralists in the world capitalist market through
increasing production of cash crops for export. The integration was achieved
through resettlement of selected farmers in villages under supervision of Village
Settlement Commissions.741 Land tenure became increasingly individualized and
land tenure and land use systems were administered and managed from the top
through regulations, rules and by-laws. By 1966, the government acknowledged that
both the village settlement schemes and range land projects had failed. This led
to the declaration of the policy of African Socialism (ujamaa or brotherness),
self-reliance and rural development in the Arusha Declaration of 1967.742 Rural
areas were developed from scattered rural homesteads to nucleated ‘Ujamaa

738 Chapter 523, Laws of Tanzania.

739 H.W.O. Okoth Ogendo (2000), “Legislative Approaches to Customary Tenure and Tenure Reform in East
Africa,” in Toulmin, C. and Quan, J.F. (Eds), Evolving Land Rights, Policy and Tenure in Africa, London:
DFID/IIED/NRI.

740 World Bank, The Economic Development of Tanganyika, World Bank, 1961.

741 The Policy of village settlement schemes was laid down in the Land Tenure (Village Settlements) Act
number 27 of 1965, while provision for range land projects was made in the Ranger Development and Management
Act number 51 of 1964.

742 Shivji, I.G. (1998), Not Yet Democracy: Reforming Land Tenure in Tanzania, IIED/HAKIARDHI/Faculty of
Law: University of Dar es Salaam, page 19.
Villages’ under the ‘Villagisation Programme.’743 Parastatals pursued large scale
agriculture and ranching, while small scale communal agriculture was practiced
in the Ujamaa Villages.744
By 1973, villagisation became compulsory and through ‘Operation Vijiji,’ the
whole rural population was supposed to have moved by the end of 1976.745 The
Villages and Ujamaa Villages (Registration, Designation, Administration) Act746
was enacted to provide for allocation of land to a head or ‘kaya’ which
propagated, largely, a patrilineal agenda.747 In 1982, a programme of village
demarcation, titling and registration was started, without first clearing the
existing ‘deemed rights of occupancy’ of villagers to village land, thereby
precipitating disputes related to double allocation of land. The village
demarcation, titling and registration was not successful, thus was abandoned in
the mid nineties and a National Land Policy adopted.748 The adoption of the
National Land Policy saw the enactment of two Acts of Parliament in 1999 which
are subsequently discussed herein alongside the salient provisions of the
National Land Policy.

Salient Provisions of the National Land Policy

The National Land Policy (“the Policy”) seeks to promote equitable distribution
of, and access to land by all citizens. This it achieves in a number of ways:
• In an attempt to discourage acquisition of land for speculative purposes, the
Policy restricts access to land by non-nationals and foreign companies,
particularly with regard to customary or village land.749
• The Policy guarantees equality of tenure regimes by declaring that both customary
and statutory rights of occupancy are equal in law. 750 No right or interest in
land will be capable of being extinguished without a legal procedure to formally
extinguish such right or interest.
• Women’s access rights and ownership of land is also guaranteed under the Policy.
Paragraph 4.2.5 thereof recognizes that women’s land rights have been inferior to
men’s and their access to land has been indirect and insecure; that in allocating
land, village councils have been guided by customs and allocated land to heads of
households, who are usually men. Women will now be entitled to acquire land in
their own right, not only through purchase, but also through allocation, except
for the case of inheritance of clan or family land which will continue to be
governed by custom and tradition not contrary to the Constitution and rules of
natural justice.751

743 Ministry of Lands and Human Settlements (2000), National Human Settlements Development Policy, Dar es
Salaam, page 11.

744 Shivji (1998), supra.

745 Ibid.

746 Number 21 of 1975.

747 Tumaini Silaa (2001), ‘Beyond the Radical Title: A Research on Women’s Access to Ownership and Control
of Land in Tanzania,’ page 5, in EASSI, Documenting Women’s Experiences in Access, Ownership and Control over
Land in Eastern African Sub-region, Kampala.

748 Shivji (1998) supra, pp. 19-21.

749 National Land Policy 1995, paragraph 4.2.4 (ii); (iii); and (iv).

750 Supra, paragraph 4.1.1 (vi).

751 Supra, paragraph 4.2.6.

 • In order to prevent family matters from becoming part of the Policy, the Policy
precludes ownership of land between husband and wife from legislation.752

Salient Provisions of the Land Act, 1999

The Land Act seeks to promote the fundamental principles of the National Land
Policy, including equitable distribution of and access to land by all citizens,
by enabling citizens to participate in decision making on matters connected with
their occupation or use of land; set out rules of land law accessibly and in a
manner which can be readily understood by all citizens; and by encouraging the
dissemination of information about land administration and land law through
programmes of public awareness using all forms of media.753 Further:
• The right of every woman to acquire, hold, use and deal with land is to the same
extent and subject to the same restrictions, treated as a right of any man.754
• All land in Tanzania is declared as public land vested in the President as trustee
for and on behalf of all citizens of Tanzania. The public land is then divided
into general land, village land and reserved land. 755
• The Commissioner for Lands can, in the name of the President, grant a right of
occupancy for a term not exceeding 99 years.756 Customary rights of occupancy are
an exception, though. Whereas granted rights of occupancy cannot exceed a term of
99 years, customary rights of occupancy generally have no time limit. 757
• Regarding conversion of interests in land, the Land Act enables a person who has
held land under customary tenure or any other informal tenure under certain
conditions to obtain a certificate of validation of that occupation. Such a person
can then apply for a right of occupancy for a period of not less than 33 years.758
• Spouses may create joint occupancy in land, in which case, no occupier is entitled
to any separate share in the land.759 This means that such land can only be disposed
of if all the joint occupiers agree to do so; while still alive, a joint occupier
may transfer his/her interest to all the other occupiers but to no other person;
and if a joint occupier dies, his/her interest in the land is vested in the
surviving occupier or occupiers jointly.760
• The Act also recognizes the principle of occupation in common. Where any land,
lease or mortgage is occupied in common, each occupier is entitled to an undivided
share in the whole. An occupier in common must have the consent of the remaining
occupier before he/she can deal with his/her undivided share in favour of any
other person. In case of death of an occupier, his/her share is treated as part
of his/her estate, thus his/her heirs inherit the land.761

752 Ibid.

753 Section 3(1)(c) of the Land Act.

754 Section 3(2) of the Land Act.

755 Section 4 of the Land Act.

756 Section 32(1) of the Land Act.

757 Section 27(1) of the Village Land Act.

758 Section 53 of the Land Act.

759 Section 159 of the Land Act.

760 Ibid.

761 Ibid.
 • Where a spouse obtains land under a right of occupancy for the co-occupation and
use of both spouses or where there is more than one wife, there is a presumption
that the spouses will hold the land as occupiers in common, unless a provision in
the certificate of occupancy or certificate of customary occupancy clearly states
that one spouse is taking the right of occupancy in his or her name only.762 The
Registrar is required to register the spouses as occupiers in common.

Salient Provisions of the Village Land Act, 1999

The Village Land Act regulates management of village land and enforces the
fundamental principles of the National Land Policy and it achieves this vide its
various provisions. Village land is divided into, firstly, communal village land
which refers to land for communal use. Such land cannot be made available for
individual occupation and use. Secondly, land occupied or used by an individual,
family or group of persons under customary law. Lastly, village land may be land
that can be allocated by the village council for communal or individual
occupation.763
• Each village land is managed by a village council upon whom a certificate of
village land is issued. The issuance of a certificate of village land affirms the
occupation and use of the village land by the villagers under and in accordance
with the customary law applicable to land in that area.764
• Village Councils are trustees managing village land on behalf of the villagers.
No Village Council may unilaterally allocate land or grant a customary right of
occupation to any person without the approval of the Village Assembly.765
• Customary and granted rights of occupancy have equal status and effect, 766 and
allocation of land under Operation Vijiji to a person or group of persons is
recognized as a valid allocation, extinguishing any previous rights in respect of
the land.767
• Disputes relating to customary rights of occupancy are determined in accordance
with customary law, which must accord to the National Land Policy and with any
written law. Such rules are rendered inoperative and void when they deny women,
children or persons with disability lawful access, occupation or use of customary
land.768
• An individual, a family unit or a group of persons recognized as such under
customary law are entitled to apply to their village council for a customary right
of occupancy. The village council is obliged to treat equally an application from
a woman, or a group of women, no less favourably than an application from a man,
a group of men or a mixed group of men and women.769
• Lastly, regarding resolution of disputes over customary land, for each village,
the village council is required to establish a village land council to mediate

762 Section 161 of the Land Act.

763 Section 12 of the Village Land Act.

764 Section 7 of the Village Land Act.

765 Section 8 of the Village Land Act.

766 Section 18 of the Village Land Act.

767 Ibid.

768 Section 20 of the Village Land Act.

769 Section 23 of the Village Land Act.

 between and assist parties to arrive at a mutually acceptable solution on any land
matter. An aggrieved party can appeal to the Ward Tribunal, the District Land and
Housing Tribunal, the Land Division of the High Court, and finally to the Court
of Appeal.770

PRINCIPLES OF LAND LAW IN SOUTH SUDAN

Historical Perspective
The Republic of South Sudan is the world’s newest country, covering an approximate
area of 619,000 square kilometers, estimated to be one third of the total land
area of Sudan.771 The country became independent on 9 July 2011 after two civil
wars with Sudan.772 The wars, which spanned 50 years, delayed development of
basic infrastructure, human services such as education and health, agricultural
investment and agricultural extension. Customary law, specific to each ethnic
group, has governed the use of land and other natural resources in the region
for centuries. Formal land laws have had little impact on the customary tenure
system in South Sudan.
Customary law has governed the use of land in South Sudan for centuries, with
each ethnic group applying its own laws relating to land and land rights within
its own territory. Land laws enacted by governments in Khartoum throughout the
colonial and post-colonial periods do not appear to have seriously affected
customary tenure systems in the South. Thus, on the whole, customary laws and
practices remain largely intact. Although they vary from community to community,
customary institutions and traditional mechanisms continue to govern the access,
use and allocation of land.
However, with the signing of the Comprehensive Peace Agreement (CPA), which
established the Government of National Unity (GNU), the Government of South Sudan
(GoSS) recognized the need for legislation, policy and formal institutions to
ensure that land rights are equitable for all South Sudanese.773 The GoSS has
subsequently adopted its own Constitution (subject to the terms of the national
2005 Interim Constitution) and legislation, including a Land Act enacted in
February 2009 meant to regulate land ownership in South Sudan.774.
Historically, the people of South Sudan had never had a centralized system of
governance. The control and management of land was dictated by traditional leaders
exercising both judicial and administrative functions. Although the Land Act
provides a governance framework, it does not outline roles and responsibilities
of land administrations and institutions in great depth. Clear distinctions
between the respective roles of formal and customary institutions in allocating
and governing community lands are particularly lacking.

The Governing Legal FramewoRK

South Sudan has three primary legislation governing land use and ownership – the
Land Act (2009), the Local Government Act (2009) and Investment Protection Act
(2009). These provide a statutory framework for fair and transparent
administration of land rights. The Land Act classifies land as public, community

770 Section 62 of the Village Land Act.

771 Deng, David and Anuradha Mittal (2011) Understanding Land Investments Deals in Africa: Country Report
South Sudan. http://media.oaklandinstitute.org/understanding-land-investment-deals-africa-south-sudan
(accessed on 15 February 2015).

772 Ibid.

773 Ibid.

774 Ibid.
or private and provides that the land is owned by the people, and that the
government regulates land use.775 In addition, the CPA mandated the establishment
of the South Sudan Land Commission (SSLC), which has begun to develop land
policies that reflect customary rules and institutions, per the Interim (2005)
and Transitional (2011) Constitutions.776
The Transitional Constitution of 2011 states that all land in South Sudan is
owned by the people of South Sudan, and charges the government with regulating
land tenure, land use and exercise of rights to land.777 The Constitution
classifies land as public, community or private land, and requires the GoSS to
recognize customary land rights when exercising the government’s rights to land
and other natural resources.778 The Constitution does not clarify the extent to
which customary rights can limit government’s rights, but does require that all
levels of government incorporate customary rights and practices into their
policies and strategies.
The Land Act regulates land tenure and equally recognizes rights to customary,
public and private tenure and also creates an enabling environment for economic
development in South Sudan. The Local Government Act defines primary
responsibilities of local government and traditional government authorities in
the regulation and management of land, which includes charging customary
institutions with particular responsibilities for administering community land
rights. The Investment Promotion Act establishes procedures for facilitating
access to land for private investment, including by foreign investors, in ways
that balance the interests of both current right holders and investors.
The Land Act recognizes three tenure types: customary, freehold and
leasehold.779 Section 7 of the Act, vests the ownership of land in the South
Sudanese but mandates the government to regulate the land on behalf of the people.
Land used for residences, agriculture, forestry and grazing can be held under
customary tenure.780 Customary land rights are inheritable and can be subject to
usufruct rights and sharecropper agreements, but cannot be permanently
alienated.781 Traditional authorities may allocate lifetime tenure rights to
customary land. However, if a parcel is non-residential and exceeds 250 feddans
(about 105 hectares), traditional authorities must notify local government and
secure their approval in advanceof making any transfer.782 Freehold rights are
held in perpetuity and include the right to transfer the land temporarily or
permanently.783 The Land Law does not state how freehold rights are acquired.
Leaseholds can be obtained for customary and freehold land, and can be granted
for up to 99 years.784 Leases of more than 105 hectares of customary land must

775 See Chapter III of the Act.

776 Government of South Sudan (2009) The Laws of Southern Sudan: The Land Act (2009). Juba: Government of
Southern Sudan.

777 Ibid.

778 Article 170 of the Transitional Constitution.

779 Section 7 of the Land Act.

780 Gafaar, Abdalla. 2011. Forest Plantations and Woodlots in Sudan. Africa Forest Forum.
http://www.sifi.se/wpcontent/uploads/2012/02/Forest-plantations-and-woodlots-in-Sudan.pdf (accessed on 11
April 2015).

781 Ibid.

782 Section 27 of the Land Act.

783 Section 4 of the Land Act.

784 Section 18 of the Land Act.

be approved by two local government bodies. Foreigners cannot own land in South
Sudan, but can lease land for periods up to 99 years.785
The draft Land Policy786 clarifies some ambiguities in the Land Act by endorsing
in general terms the existing patterns of land tenure as they relate to land use,
as follows: (1) community tenure will be the principal form of tenure in areas
that are predominantly rural; (2) public and freehold tenure will be the principal
forms of tenure in areas that are officially gazetted as urban areas under the
Town and Country Planning Act; (3) public land also includes land over which no
private ownership (including customary ownership) is established, roads and other
public transportation thoroughfares, water courses over which community ownership
cannot be established and forest and wildlife areas formally gazetted as national
reserves or parks; and 4) peri-urban areas may be held under community, public
or private tenure.787
Both the Land Act and draft Land Policy provide for the registration of land
in South Sudan. The Land Act states that all land, whether held individually or
collectively, shall be registered and granted a title.788 Systematic registration
shall take place at the request of the state and be carried out by the Ministry
of Housing, Physical Planning and Environment.789 Communities can register their
land in the name of the community, in the name of a traditional leader as trustee
for the community or in the name of a clan, family or community association. Once
community land is registered, individual members of the community may be entitled
to register individual rights to land within the community land area.790 Section
13 makes provision on the rights of citizens to land and clearly states that no
one shall be denied the right to own land by the government of South Sudan.
Laudable is section 13(4) which provides that women shall have right to own and
inherit land together with any surviving legal heir of the deceased in line with
the Constitution of South Sudan.
The Land Act indicates the importance of customary authority and mandates the
establishment of County Land Authorities and district level Payam Land
Councils.791 Land Authorities and Councils are local land institutions comprised
of county and district level representatives entrusted to act as civic authorities
and administrators over community land.792 The composition of the county level
bodies is as follows: one representative from each town and municipal council;
one representative from the Ministry of Housing, Physical Planning and
Environment appointed by the Minister; a representative of traditional authority;
one representative of civil society; and, one woman representative recommended
by the County Women Association.793 Similarly, section 48 of the Land Act provides
for the composition of Payam Land Authority. State Governors will appoint

785 Section 27 of the Land Act.

786 Government of South Sudan (2011) GoSS Draft Land Policy. Southern Sudan Land Commission (Juba).

787 Ibid.

788 See Chapter VIII of the Land Act.

789 Ibid.

790 Ibid.

791 Sections 44 and 47 of the Land Act.

792 Section 45 of the Land Act.

793 Ibid.
individuals to the Land Authorities based on recommendations from County
Commissioners.
Land Authorities’ responsibilities include: holding and allocating public
lands on behalf of local government; making recommendations on gazetted land
planning; advising on resettlement of IDPs; facilitating the registration and
transfer of land; supporting cadastral operations and surveys; advising local
communities on land tenure, usage and exercise of rights; and coordinating with
the SSLC and other government bodies. The Payam Land Councils are responsible
for the management and administration of land at the district level. Districts
are comprised of subsections called bomas. Members of each Payam Land Council
will be appointed by the State Minister based on recommendations from County
Commissioners and in consultation with the traditional authority in the payams.
Payam Land Councils are composed of: the executive chief of each boma and a
representative from the Farmers and Herders Association, representatives of a
civil society group and one woman recommended by the Payam Women’s Association
Although the Land Act mandates the establishment of local land institutions,
there are no clear procedures for establishing land authorities or councils and,
as a result, very few have been created. Although the draft Land Policy does not
provide additional guidance, it does recommend the development of a Community
Land Act that would establish guiding principles and a legal framework for the
governance of community lands by traditional and formal governing institutions.
The 2009 Land Act, the draft Land Policy and the 2009 Local Government Act
establish a basic legal framework to address compulsory acquisition of private
property by the government.794 The framework includes consulting with local
communities. Under the Land Act, the GoSS, state governments and any other public
authority may expropriate land for public purposes, subject to the payment of
compensation and upon agreement as prescribed by the Act or any other law. The
GoSS may propose to take, reserve or reallocate land for a range of public uses,
including the establishment of national parks, forest reserves, military
installations and rights-of-way.795 The government’s power of expropriation is
restricted to securing land for public use only, and not for subsequent transfer
or sale to private individuals. Government officials are required to provide
clear public explanations when they exercise their authority to restrict or
remove private or customary rights in land.
According to the Act, the procedure for expropriation shall be based on a
consultative process with the communities or individuals concerned, prior to
development of the expropriation plan. As with declarations that render land
‘public,’ any expropriation for investment purposes must be preceded by the
government’s provision to the public and all concerned rights holders of a clear
justification for its actions.796 In addition to consulting the communities that
own the land in question, the Land Act also requires that government officials
and company representatives consult pastoralist groups with secondary rights of
access before making any decision that would affect their grazing rights.797
However, the current land framework for governing large-scale land
acquisitions lacks clear jurisdictional roles for public institutions at all
levels, including an appropriate balance between central oversight and state-
level flexibility, and does not provide a role for the legislative branch in

794 See for instance, section 10 of the Land Act.

795 Ibid.

796 Rolandsen, Oystein H (2009) Land, Security and Peace Building in Southern Sudan. PRIO.

797 Ibid.
approving large-scale land allocations.798 Due to this legal ambiguity, there is
currently no uniform procedure for managing large-scale land acquisitions.
Applications for land are managed through ad hoc procedures at various levels of
government, contributing to a lack of transparency and accountability with regard
to many deals.799

South Sudan Land Commission (SSLC) and other Land Administration

Institutions
Since its origin in 2006, the South Sudan Land Commission (SSLC)800 has made
progress despite being hampered by lack of sufficient staff, funding and capacity.
The SSLC developed the Land Act (2009) and the draft Land Policy.801 In addition,
the SSLC collaborates closely with other institutions that are developing new
land administration systems and laws. These include the Ministry of Legal Affairs
and Constitutional Development (MOLACD) and the Land Policy Steering Committee
which is made up of 13 Ministries, commissions and Boards.
The Land Act established the land registry within the Ministry of Housing,
Physical Planning and Development at the national level, with coordinated
registries maintained at the state level.802 The Land Act outlines a decentralized
plan for land administration in South Sudan, with County Land Authorities and
Payam Land Councils operating at county and local levels. The County Land
Authority is responsible for: managing and allocating public land; resettling
people in the county; registering and transferring land; supporting cadastral
operations and surveying; liaising with traditional authorities; advising local
communities on land rights issue; and liaising with the SSLC. The Payam Land
Council is responsible for: allocating public land; land planning and
demarcation; supporting land registration and transfer; protecting the customary
rights of communities (including those pertaining to communal grazing land,
forests and water resources); maintaining sanitation and hygiene; and assisting
the traditional authorities with land management, land dispute resolution and
environmental protection.803

CONCLUSION
At independence, Uganda had three tenure regimes, to wit, mailo tenure system,
freehold tenure system, and customary tenure. Post-independence land tenure
system is codified in the Constitution of the Republic of Uganda, which identifies
the mailo, freehold, leasehold and customary tenure systems. Management, access
and use of land in Uganda are principally regulated by the Constitution of the
Republic of Uganda, the Land Act, the Registration of Titles Act, Customary Law,
common law and principles of Equity. Whereas the Land Act concerns itself with
land ownership, administration and resolution of land disputes, the Registration
of Titles Act regulates the registration and transfer of titles to land. Ownership
of land under customary law must be consistent with written law, not repugnant
to equity, natural justice, good conscience, and its application must not have
been precluded by the affected parties.

798 Rhode, Michaela (2011) Is South Sudan’s Largest Land Deal a Land Grab? Think Africa Press. 11 September.

799 Ibid.

800 Established under Section 52 of the Act.

801 Martin, Ellen and Irina Mosel (2011) City limits: urbanisation and vulnerability in Sudan - Juba Case
Study. Overseas Development Institute, Humanitarian Policy Group.

802 Section 54 of the Act.

803 Section 50 of the Land Act.

 Principles of land ownership, access and use in Tanzania were initially
codified in the Land Ordinance, 1923, whose many provisions remained unchanged
even after independence. The Ordinance recognized customary land rights (deemed
occupancy rights) and statutory land rights (granted occupancy rights). In 1967,
Tanzanian authorities adopted the Arusha Declaration under which the
villagisation programme was promulgated. The programme saw the enactment of the
Villages and Ujamaa Villages (Registration, Designation, Administration) Act.
The villagisation programme failed, leading to the adoption of the National Land
Policy in 1995. The policy informed the enactment of the Land Act, 1999 and the
Village Land Act, 1999, which, to-date, remain the key statutory laws regulating
management of land in Tanzania, alongside the Constitution of the Republic of
Tanzania.
Historically, the people of South Sudan had never had a centralized system of
governance. The control and management of land was dictated by traditional
leaders exercising both judicial and administrative functions. Currently, the
Transitional Constitution and the Land Act primarily provide a governance
framework regulating land use. The Land Act, however, does not outline roles and
responsibilities of land administration and institutions in great depth. Clear
distinctions between the respective roles of formal and customary institutions
in allocating and governing community lands are particularly lacking. Customary
law still plays a major role in land administration in South Sudan despite the
existence of a statutory framework.

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