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THE EMERGENT JURISPRUDENCE ON LAND AND LANDUSE:

POST CONSTITUTION OF KENYA 2010.

BY

NIMROD MATUNDA

LAW/M/0953/09/11

A RESEARCH PAPPER SUBMITTED IN PARTIAL FULFILLMENT OF THE

KABARAK UNIVERSITY SCHOOL OF LAW’S REQUIREMENTS FOR THE

AWARD OF A DEGREE IN BACHELOR OF LAWS (LLB).

AUGUST 2014.

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DECLARATION BY THE CANDIDATE:

I declare that this dissertation is my original research work and has not been

submitted to any other institution of learning other than Kabarak University School

of Law.

Name: Nimrod Matunda.

Signature………………………………………………………Date……………………………

………

Declaration by the Supervisor:

Name: Dr. Ken Obura.

Signature…………………………………………………….Date………………………………

……..

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DEDICATION.

To my Loving MUM and DAD.

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ACKNOWLEDGEMENT.

A humongous project of this magnitude requires the combined efforts from many

quarters if it’s to be successful.

In this regard numerous individuals made fundamental contributions in one way or

another in furtherance of this dissertation paper.

Deserving special mention is my Research supervisor Dr. Ken Obura, whose

contribution was always timely and vital, with admirable sense of interest, commitment

and professionalism.

A special thanks to my parents, Mr. and Mrs. Odongo, for their unwavering love and

support throughout the entire period at law school.

Importantly too, I am forever grateful to God.

And finally, I thank all those who, in one way or another, played a role that enabled the

possible outcome of this research paper.

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LIST OF ABBREVIATION

COK Constitution of Kenya 2010.

LA Land Act No. 6 of 2012

LRA Land Registration Act No. 3 of 2012

NLC National Land Commission

TJRC Truth Justice and Reconciliation Commission

NLP National Land Policy 2009

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TABLE OF CONTENTS

Declaration ……………………………………………II

Dedication……………………………………………..III

Acknowledgement……………………………………IV

List of abbreviation……………………………………V

Abstract………………………………………………..VI

CHAPTER ONE: INTRODUCTION

1.0 BACKGROUND OF STUDY………………..…..10

1.1 STATEMENT OF THE PROBLEM……………12

1.2 RESEARCH OBJECTIVES……………………..13

1.3 RESEARCH QUESTIONS……………………..14

1.4 LITERATURE REVIEW………………………..14

1.5 RESEARCH METHODOLOGY……………….15

1.6 CHAPTER BREAKDOWN…………………….16

CHAPTER TWO: INTRODUCTION

2.1 THEORETICAL AND CONCEPTUAL FRAMEWORK OF

LAND LAW………………………………………17

2.2 THE MULTIPLE DIMENSIONS OF LAND.…20

2.2.1 First two dimensions of land………………21

2.2.2 The third dimension of land………………22

2.3 THE DOCTRINE OF TENURE………………..25

2.4. THE DOCTRINE OF ESTATES………………26

2.4.1 Fee simple Estate…………………………..27

2.4.2 Fee-tail Estate ……………………….……..27

2.4.3 Life Estate ………………….………………27

2.5 CONCLUSION…………………….…………..29

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CHAPTER THREE: INTRODUCTION

3.1 HISTORICAL GLANCE ON LAND REGIME….30

3.2.1 Pre- colonial……………………………………30

3.2.2 Colonial phase…………………………………31

3.2.3 Post-colonial…………………………………...33

3.3 LAND INJUSTICES………………………….……34

3.3.1 Corruption & Fraud……………………….….34

3.3.2 Settlement Schemes & Trust Lands…………34

3.3.3 Forestlands, National Parks, Game Reserves,

Wetlands, Riparian Reserves & Protected Areas...35

3.3.4 Urban, State & Ministries’ Land…………….35

3.3.5 Women’s Land Rights under

African Customary Law…………………....…36

3.3.6 Coast land problem……………….….....…….37

3.4 CONCLUSION……………………………….…...38

CHAPTER FOUR: INTRODUCTION

4.1 CONSTITUTION OF KENYA

ON LAND CHAPTER………………………….…40

4.2 A LOOK AT THE NEW LAND LAWS………..…45

4.3 LAND ACT 2012……………………….………..….47

4.3.1 Forms of Tenure and Methods of

Acquisition of Title to land……………………….48

4.3.2 Administration and management

Of Private Land……………………………………49

4.3.3 Provisions on leases…………………………….50

4.3.4 Provisions on Charges…………….……………54

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4.3.5 Compulsory Acquisition

Of Interests in Land……………………………55

4.3.6 Procedure for Compulsory

Acquisition of Land………………………...…56

4.3.7 Settlement Programmes………………………..59

4.4 THE LAND REGISTRATION ACT, 2012………...59

4.4.1 Overriding Interests……………………………61

4.4.2 Certificate of Title and Certificate of Lease…...62

4.4.3 Disposition Affecting Land………………….….62

4.4.4 Transfers, Certificates

Of Payment of Rates and Rents……………....…63

4.4.5 Dispositions to Prejudice

Creditors May Be Set Aside………………...…...64

4.4.6 Leases and Charges…………………………….64

4.5 CONCLUSION…………………………………….....65

CHAPTER FIVE: CONCLUSION AND RECOMMENDATIONS

5.1 INTRODUCTION……………………………….......66

5.2 THE TRUTH JUSTICE AND RECONCILIATION

COMMISSION REPORT…….…………………...….66

5.3 OVERRIDING RECOMMENDATIONS……....…...67

5.4 CONCLUSIO.................................................................69

LIST OF REFERENCES……………………………………71

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ABSTRACT

THE EMERGENT JURISPRUDENCE ON LAND AND LANDUSE:

POST CONSTITUTION OF KENYA 2010.

In Maritime History of Kenya, nothing has been divisive, potent and crucial a matter

like landownership. Indeed the history of Kenya, like that of any colonized territory is

and or has been fundamentally one of land dispossession and subsequent staking out of

individual claims of title to property , that legitimately belongs to others through a

mechanism of land registration. Today in Kenya like the world over, land is a primary

input factor of production, which amazingly is not consumed but without which no

production is possible. Land is the resource that has no cost of production, although its

usage can be switched from a less to a more profitable one, its supply cannot be

increased. And perhaps the oldest form of collateral, land is still very attractive to

lenders because it cannot be destroyed, moved, stolen or wasted. Kenya has undergone

a complete transformative framework as regards land and land-use. The transformation

was heralded by the Constitution of Kenya 2010. This paper seeks to unearth the legal,

administrative, socio-political metamorphic that the country Kenya is undergoing vis-a-

vis the avalanche of ricochetory effects from the nascent set of statutory land laws, that

hitherto there is an emerging jurisprudential corridor as regards land and land-use in

Kenya.

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CHAPTER ONE

1.0 BACKGROUND OF STUDY

Land history in this country is and has always been a sorry tale. A tale that leaves many

shocked at the egregious acts that were committed at colonial times and post-colonial

era. A historical legacy of despotic institutions and practices helps explain these

unsavory outcomes. In the pre-colonial times land was mainly owned

communally.Tenure relations under this customary system were controlled by some

socially distinct authority usually comprising of a functionary e.g. a chief, an elder,

council of elders, spiritual leader etc. Such an authority solved the problem of allocation

by overseeing the access, management and use of land. Control was for the purpose

only of guaranteeing access to land and the resources found on it. Decisions about

whom to exclude and who not to exclude also rested with this controlling authority.1

Further Adam Leach observes exquisitely that tenure was family based and the head of

the family held rights on behalf of other family members, individual and group

membership of the social unit of production or political community had guaranteed

rights of access to land or other natural resources, rights of control were vested in the

political authority of the unit or community,2 private property rights accrued to

individuals because of the investment of their labor in exploiting resources, and

resources which do not require extensive investment were shared such as common

pasturage and managed by the relevant political authority or persons with appropriate

jurisdiction.

1 Adam Leach; Land Reform and Socioeconomic Change in Kenya” in East Africa Journal of Peace & Human Rights, Vol 4, No. 1, 1988. pp 60-90. 2 Ibid pp-92-100.

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However with the introduction of colonialism, these customary conceptions about use

and ownership of land began to be eroded. The colonial masters brought with them

new institutions which systematically undermined the traditional socially accepted

institutions.3

In the colonial period one of the main reasons as to why the Whiteman colonized Africa

was for the supply of raw materials for their industries most of these raw materials

included raw materials inform of agricultural products as such they had to take

ownership of the major raw material in the production of agricultural product. The

incidence of colonialism in Kenya dates back, generally, to the scramble for Africa vide

the Berlin conference of 1885, and, particularly, the declaration of a protectorate over

much of what is today Kenya on 15th June 1895. From then the British rule endured

until 12th December 1963 when Kenya attained independence.4

Land was a central tool of social and economic control for the colonial government.

Such was the imprint of the colonial government that, at independence, the Kenyan

government continued with a slightly modified land use management regime of the

colonial government.5 These included the misconception that the notion of property

ownership was not clearly understood to the native and he did not actually own the

land that he occupied and that it was necessary to determine the proprietary interests.

The settlers having come from areas that had developed systems of holding land

needed assurances that having come to unknown territory, their interests in the land

would be secure.

With the continual subdivision of land and increase in population density people

started to notice how they had been ripped away from the land and started accusing

others of having invaded their land leading to land based conflicts which were further

3 Supra note 1 p. 87. 4 Jacqueline M. Klopp Pilfering the Public: The Problem of Land Grabbing in Contemporary Kenya Africa Today, Volume 47, Number 1, Published by Indiana University Press, Winter 2000, pp. 7-26 5 Aggrey T, Genealogy of Land Ownership, Use and Management Problems in Kenya During the Pre-August 2010 Constitution Period. 2010 pp 30-60.

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fueled by politicians who rally the ethnic and tribal masses. To date most of the land

issues are and will be as the result of the effects of colonialism.

1.1 STATEMENT OF THE PROBLEM

One inescapable truth is that the colonialists transplanted a system of laws from their

home country to Kenya. It’s inevitable that at one point in time, there could be a friction

between these laws with their practical applicability in the nation, Kenya. The adoption

of the colonial land laws, its been noted, that the independence government enacted the

Registered Land Act (Cap 300) to govern land in native reserves that were under

Customary Tenure. Of importance to assert is the newly established independence state

did not depart fundamentally from the course that had been set in the colonial period.

6They continued with the process of land adjudication, consolidation and registration,

regardless of the fact that the laws did not take into cognisance the nature of the natives.

The dual land holding system that had been there during the colonial times stayed.

What would happen is that as more and more areas got covered by the adjudication

process, it gave way to the statutory system the ultimate goal being to bring about a

unified registration system that was to complete regulated by the Registered Land Act.

However, given that this process was to be gradual, this was to take a while and so dual

system has persisted.

The registration process has been accompanied by problems with some people missing

out due to several factors including fraud, corruption, the issue of freedom fighters who

went to the forest during the fight for independence hence missing out on the

registration process, grabbing of public land and registering the same in private hands

leading to calls for land reforms was part of the new constitutional dispensation

package.

6 Cap 300 Laws of Kenya.

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Disturbingly has been the way Kenya is characterised as a kleptocracy constituted by a

drive for primitive accumulation by those who controlled the post-colonial state,

alongside the failure of an African business class to promote industrialisation and

development and a dead political class that could never attend to any serious national

issue- land being top on the list.7 Therefore this regrettable situation is not and cannot

be tolerated in an age and era of a dispensation that has a legal framework well set out.

1.2 RESEARCH OBJECTIVES

This dissertation, endeavors to bring to fore, exclusively, the so far statutory position

legislated pertaining to the new land laws and the established legal, administrative and

social structure that is taking root under the Constitution of Kenya 2010.

Further this paper will seek to answer a plethora of concerns as to whether the new

land laws are the panacea of the land grievances. And in doing so, there will be a

deliberate and exclusive review of the laws so far enacted so as to get the gist of each

statutory framework.

At the closure of the dissertation, the paper shall also unearth the possible route that the

new land laws may chart and the consequential legal framework that is to emanate with

their implementation.

1.3 RESEARCH QUESTIONS

7 Dr Benson Mulemi; Historical Roots of Land-Related Grievances in Kenya, August 2011,pp6-8

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This research seeks to answer a plethora of questions, namely;

1. What is the conceptual and theoretical framework on land?

2. What is the legal framework resultant from the new land laws?

3. How effective is the emergent jurisprudence on land law after 2010?

1.4 LITERATURE REVIEW

The land problem has enormous characteristics that flow from a number of past

historical injustices. The key trouble are inter alia areas slum settlements in Urban Areas,

the amorous Squatters-10 mile coastal strip at the Coastal zone, whilst the Squatters in

large plantations with convoluted land fragmentation systems in Central Kenya and

importantly the dubious resettlement schemes that have fueled animosity to outsiders

regarding the pastoral rights in Rift Valley are just among the many overwhelming

scenarios that are germane when talking about the land problem8. But, one thing is

important, that is, these grinding problems need paramount and permanent solution,

now and today.

However, Jean-François Bayart fails to link the theoretical argurment to the practical

situation that face many a people.9 The book does not interrogate the emergent issues

8 Bayart, J. The State in Africa: The Politics of the Belly. London and New York (1993): Longman Press pp 56-60 9 Ibid

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that the possible solutions thereto. He in his work The Politics of the Belly only captures

the eventualities that most African governments go through, he asserts that by a

controlling government and the interdependence of the elite in control of the private

and public spheres, actors on both sides use their status to strengthen their economic

and political power.

Professor Tom Ojienda has exclusively, in a deliberate tone, compiled a voluminous text

on land laws that governed Kenya with the statutory framework accompanied by

authoritative caselaw.10 However, the sad truth is, the work by Tom Ojienda- Principles

of Conveyancing in Kenya, A practical approach, does not capture the new developments

on land law, the new statutory framework and the possible jurisprudential corridor

after the coming into place of the Constitution of Kenya 2010. My research paper is

premised on analyzing the new land laws in effect post 2010 constitution by identifying

the areas that are germane to Kenyans. That is what entail my work.

1.5 RESEARCH METHODOLOGY

This research is mainly a desk research exercise where information is obtained through

reviewing published reports and archival material.

Therefore the research by its very nature will rely to a large extent on primary sources

of data pieces of legislation, caselaw, constitutional provisions, websites of government

institutions and non-governmental organizations. Basically they are the primary source

of the research.

1.6 CHAPTER BREAKDOWN

10 Ojienda T: Principles of Conveyancing in Kenya, A practical approach. Nairobi, LawAfrica, May 2011.

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This work is divided into four chapters. As noted, the chapter herein (chapter one)

provides the theoretical framework for the study.

The second Chapter will deliberately interrogate theoretical and conceptual framework

of land law. It will be an effort to establish the concept behind ownership of land and

the historical and theoretical arguments that surround the intriguing doctrines of

estates and tenure relations.

The third Chapter will encapsulate the historical land grievances and the tempestuous

land problems in the nation Kenya.

The forth chapter will consider the new land laws through a clear and concerted

analysis of each new set of statutory framework. It will be a review of the new land

laws.

Finally the last Chapter will assert the recommendations and draw a conclusion. In so

doing the chapter will confirm whether the new land laws are a panacea to the land

grievances or just a set of legislation that is null or lacks any ameliorative spirit.

CHAPTER TWO

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2.0 INTRODUCTION

This Chapter categorically interrogates the theoretical and conceptual framework on

land law. The layman’s view of land is that land includes the surface of the earth

together with all the subjacent and superjacent things of a physical nature as buildings,

trees and minerals but the analysis of the legal definition of land is more complex and

can be puzzling to the layman. It’s imperative to define land in order to determine what

a person who has interest in land takes as part of land11.

2.1 THEORETICAL AND CONCEPTUAL FRAMEWORK OF LAND LAW

Therefore since land provides the physical base for all human activity, there is no

moment of any day in which we lie beyond the pervasive reach of land law. It’s fair to

state that for land law it constantly describes our jural status in relation to land and its

other users. It provides a running commentary on every single action of every day.

Surprisingly not only does it supplement or reinforce our instinctive labelling of the

things of the external world as meum and tuum; it also plays a deeply instrumental role

in regulating the efficient social and economic use of all land resources12.

Moreover, given the peculiar nature of land and its overwhelming significance as a

natural resource there have developed different notions concerning it. Its espoused that

these notions have led to a varying political theories revolving around land. Land in

total involves and reflects a socio economic and political system of a given nation or

community13.

It’s been argued affirmatively that the concept of property is the concept of a system of

rules governing access to and control over material resources. Something is said to be a

11 Onalo P Land Law and Conveyancing in Kenya, LawAfrica Nairobi. Pp12-14 12 Kevin G & Susan F; Land Law, Oxford press .2009 pp 1-5 13 Supra note 20

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material resource if it is a material object capable of satisfying some human need or

want14, importantly is the assertion that defines material resources as including

resources such as minerals, forests, water, and land as well as manufactured objects of

all sorts.

The fundamental characteristic of material resources is that they are scarce relative to

the human demands that are made on them. Therefore there is bound to be

disagreements as to who is to make which use of that resource15. These disagreements

are often serious because in many cases being able to make use of a resource one wants

is connected directly or indirectly with one’s survival.

According to Jeremy Waldron16 there arises the problem of allocation, that is, the

problem of determining peacefully and reasonably predictably who is to have access to

what resources or for what purposes and when. Thus the conclusion that the system of

social rules called property rules are ways of solving that problem so arisen.

Another argument that makes sense has been that a legal issue may be one that

concerns the relations between two persons with respect to the thing; but the issue lies

only in the relations between persons involved. The regulation of social relations is as

much a function of law as the regulation of legal relations with respect to material

resources17.

Many legal scholars have argued emphatically regarding the concept of property and

land. It’s been posited that the study of property is the study of rights18. A right has

been defined as an affirmative claim by one individual or institution (holder of the

right) on another (upon whom there is a duty) for an act or forbearance the failure to

14 Jeremy Waldron ‘The Right to Private property (1988) Oxford’ pp 45-50 15 Ibid pp 48 16 Ibid 17 Hoebel, E. A., ‘The Law of the Primitive Man’, (1954) Harvard University Press, Boston pp 60-80 18 Lord L, Introduction to Jurisprudence’, 3rd ed. (1972) Steven and Sons, London.

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perform which entitles the right holder to use coercion to extract compliance or

compensation in lieu thereof.

Cognisantly property has been given the definition of that which constitutes a secure

expectation over some benefit stream, with the security arising from collective sanctions

and enforcement19, besides the fact that property is a social institution it is also a legal

phenomenon. To non-lawyers, property is the thing which is owned. In laymen’s view,

property is something tangible, such as home, land, or car. The central characteristic of

the layperson’s definition of property is the emphasis on objects or things as

representing property20.

Therefore it can be deduced from the foregoing that originally property was the

relationship between the thing (or “object”) and the person (or “subject”), which

provided the key to the definition of “property”. To the contrary, in legal perspective,

property is the network of legal relationships prevailing between individuals in respect

of things. In the lawyer’s eyes, “property” is the bundle of mutual rights and

obligations between “subjects” in respect of certain “objects”21.

In closing it can be inferred appropriately that property is not a thing; it is a

relationship. It is a relationship that arises when subjects acquire proprietary rights in or

over an object, the nature of which varies from right to right.

All said and done the concept of property is not fully defined and brought to the fore

until the notion that provides an apt definition of property as an interest which can be

acquired in external objects or things is well said. The things are not in a true sense,

property, but they constitute it’s foundation and material, and the idea of property

19 Closing Comments at the Conference on Common Property Resources Management (1986) 20 Gray K. and Gray P, ‘Real Property and Real People – Principles of Land Law’, (1981) Butterworths, London’ 21 Supra note 28

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springs out of the connection or control, or interest which according to law; may be

acquired in them22, or over them and apparently in a similar fashion its espoused that

property is “a legally protected expectation….. of being able to draw such or such an

advantage from the thing in question according to the nature of the case”. As such, the

concept of property is not so much concerned with “things”; it is more concerned with

the relationship between individuals in respect of “things”23

2.2 THE MULTIPLE DIMENSIONS OF LAND

It’s near impossible to meticulously come up with a precise definition of what

constitutes land as property. The construction of a coherent legal regime for land has

not been a simple or instant process. It’s fair to state that legal concept of land includes

several surprising components, together with some features which, even today, remain

remarkably pragmatic or uncertain in their opinion. The first three dimensional lens of

land –as a solid reality – are perfectly consistent with the pragmatic empiricism which

characterizes so much of our land law. To these crudely factual dimensions the common

law then added a fourth, more subtle, dimension of time in the form of the doctrine of

estates.

2.2.1 First two dimensions of land

It involves a remarkably detailed two-dimensional representation of the defining

contours, features and limits of the jurisdiction, essential to the activities of the land

registrars, conveyancers, surveyors and ramblers alike.

22 Noyes C. R., The Institution of Property’, (1936) New York, Longman pp67-80 23 Jeremy Bentham, Principles of the Civil Code, (1830) Dumont

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Be that as it may, the first thing to unscramble from the common elements in the

statutory definitions of ‘land’ comprises both the ‘corporeal’ and the ‘incorporeal’

components or what has been referred to as the ‘hereditaments.’

In a broad spectrum corporeal hereditaments refer to the physical and tangible

characteristics of land, whilst incorporeal hereditaments refer to certain intangible rights

which maybe enjoyed over or in respect of land24. In essence what the foregoing a

mounts to is that there is a deep structural indeterminacy as to whether ‘land’ is

essentially a matter of fact or of abstract entitlement.

In a nutshell corporeal hereditaments are constituted by those ‘substantial’ and

permanent objects which are integral to, or closely connected with, immovable

property. Therefore, corporeal hereditaments thus include not merely clods of earth

which make up the surface of the layer of land (solum) but also all physical things which

are attached to or are inherent in the ground.

Subject to a few very specific exceptions, corporeal hereditaments extend to cover such

things as buildings, trees, subject, subjacent minerals and even some portions of the

superjacent airspace. Together corporeal and incorporeal hereditaments are sometimes

referred as `realty’. And historically ‘realty’ has always connoted rights to the specific

performance of entitlement as distinct from the mere recovery of money compensation

for the loss of such entitlements25.

2.2.2 The third dimension of land

One cannot miss to notice a recurring theme in the area of the third dimension as being

the curious phrase of Medieval Latin in the attempt to explain the concept of land. One

such phrase recites the cuius est solum est usque ad coelom et inferos (the person who owns

24 Supra note 21 p 4 25 Supra note 21

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the land owns everything reaching upto the very heavens and down to the depths of

the earth).

Actually the idea that land can never comprise a virtually limitless cubic domain lacks

that certain practical realism which characterizes a large part of the common law

perspective on property26, however the maxim has often been dismissed in recent times

as nothing more than a colorful phrase.

Important too has been the exercise done to rejuvenate the Latin Brocard as significant

indicator of the subterranean dimension of land ownership27, whilst the perception that

land connotes an indefinitely extended quantum of superjacent airspace would lead to

`the absurdity of a trespass at common law being committed by a satellite every time it

passes over a suburban garden28.’

However, it remains the case that land must have at least some three dimensional

significance: a transfer of a mere two-dimensional plot of land would have little

meaning and even less utility. It’s quite clear that land comprised within any specified

map coordinates must include at least limited portions of the subjacent and superjacent

domains.

Therefore it follows that titles to land can be stratified and vested in various owners

simultaneously , each holding a different portion of stratum of cubic space either below

or above the surface layer of the ground. It is precisely this way that the occupiers of

say, different floors in a block of flats may each claim a leasehold estate or freehold title

by way of `commonhold’ in their respective flats29.

26 Comr for Railways v Valuer- General (1974) HR per Lord Wilberforce. 27 Bocardo SA v Star Energy UK Onshore Ltd ( 2010) SC 28 Bernstein v Skyviews & General Ltd ( 1978) Q.BN 479 Per Griffiths J 29 Ramroop v Ishmael (2010) 24 per Lord Walker of Gestingthrope.

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Needless to mention the notorious fact that ``land’’ extends to rights enjoyed to space

above and below the physical surface opens the possibility of the horizontal division of

land into strata capable of ownership by different persons. This is most clearly seen in

the case of flats30, where the owners of an upper floor flat do not own the surface itself.

Moreover, minerals and other inorganic substances present in the ground (e.g. stone,

gravel, sand and china clay) comprise part of the realty and are normally annexed to the

estate of the surface landowner. A person in lawful possession of the land (whether as

freeholder or leaseholder) has, in respect of all objects concealed or embedded within

the ground, a right superior to that of any finder who locates a previously unknown

item. The finder’s act of excavation is almost inevitably an act of trespass to the soil, the

object in question being treated as `an integral part of the realty as against all but the

true owner, as was famously held in Waverley BC v Fletcher31, where F with the aid of

a metal detector, discovered a medieval brooch nine inches below the surface of a

public park owned and maintained by WBC. F reported his find, but the Court of

Appeal held WBC to have the better title as against a mere finder whose actions in the

digging and removal of property in the land were, in the absence of specific authority,

those of a trespasser.

However, in relation to objects found not embedded within, but resting upon, land, the

rule is different, and they do not automatically belong to the landowner. If a chattel is

found on the surface of land and the original owner cannot be found, and it’s not

treasure trove, the central question is whether it belongs to the finder or to the occupier

of land, whether the occupier be the owner or a tenant. The relevant principles were

considered by the Court of Appeal in Parker v British Airways Board32, where a

passenger had found a gold bracelet in the executive lounge at Heathrow airport.

Donaldson L.J held, that unless the finder was a trespasser, in which case the occupier

of the land where the chattel was found would always have a better entitlement to it

30 Nicola J, John S & Robert P,Land Law, (2008) Sweet & Maxwell, 4th ed, p 7 31 (1995) 4 All E.R. 756. 32 (1982) Q.B. 1004.

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than the finder, the occupier of a land would only have a better right to the item than

the finder if he had manifested a sufficient intention to exercise control over the land

and everything which might be found on it.

Notably has been the common law approach , that the definition of `land’ must also

include some sector of airspace above ground level, since the surface owner would

otherwise constitute a trespasser in that airspace as soon as he sets foot on his own land.

The ` landowner must have exclusive of the immediate reaches of the enveloping

atmosphere since otherwise buildings could not be erected33, tress could not be planted

and even fences could not be run.

That aside, there is a general principle that is expressed in the Latin maxim: superficies

solo cedit (a building becomes part of the ground or solum). Thus a house or other

structure which cannot be removed without demolition or destruction is presumed to

have been intended to form `party of the realty’34.

The general rule was applied in Jordan v May35, where the issue was whether an electric

motor and batteries were fixtures. It was held that as a motor was sunk in concrete it

was attached to the land and a fixture, but the batteries remained chattels because they

were resting by their own weight.

Importantly, however, the purpose for which the chattels are allowed to remain on the

land by their own weight is again the pre-eminent test, so that the mere fact there is no

attachment does not prevent a chattel becoming a fixture. In Hamp v Bygrave36, where

the vendors of land removed a number of items from their garden, including a stone

statute and other stone ornaments. After entering into a contract with the purchasers. It

was held that these items were fixtures despite the fact that they merely rested on their

33 United States V Causby (1946) SC Per William Douglas J 34 Elitestone Ltd v Morris (1997) 2 A ll. E.R 513. per Lord Lloyd of Berwick 35 (1947) K.B. 427 36 (1982) 266 E.G. 720

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own weight, because they formed ``part and parcel’’ and had been installed primarily to

improve the land.

2.3 THE DOCTRINE OF TENURE

It should be rightly pointed out that, the doctrine of tenure or the theory relating to the

concept of tenure is said to have its origin in within the feudal system, where the King

owned land37, those who enjoyed its use did so only as tenants. Furthermore, the terms

under which such a person enjoyed the right to a tenancy of land were known as

tenure. Tenure is therefore best understood as the terms under which a person held

land, either as a tenant in capite of the King or as a tenant in demesne of their immediate

overload. Therefore, with its complex tariff of services owed to the feudal superior, the

doctrine of tenures indicated more precisely the nature of the relationship between

every occupier of land and his baron or lord38.

Moving forward, the theory of tenure ultimately identified the ‘radical title’ at the back

of all relationships in respect of land. Unlike the proprietary estates, which could be

parceled out amongst the subjects of the crown, this radical title was, in truth, no

proprietary title at all, but merely an expression of Realpolitik which served historically

to hold together the theory of tenure.39 It denoted the political authority of the crown

both to grant estates in the land to be held of the crown and also to prescribe the residue

of the unalienated land as the sovereign’s beneficial demesne. However, the doctrine of

tenures lost most of its practical importance after the dismantling of the feudal system.

2.4. THE DOCTRINE OF ESTATES.

It’s been argued that if land is capable of description in three physical dimensions and

of extension into a fourth dimension by the component of time, common law soon

added one further dimension of analysis. This extra dimension turned on the `legal’ or

37 Supra note 21 p 28. 38 Supra note 20. P 20. 39 Ibid

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`equitable’ quality accorded to the various abstract rights which had emerged from the

medieval conceptualism of estates.

With time it came to be recognized that an estate in land could itself be subject of

ownership both in law and in equity40, so that in effect, estate ownership sometimes

exists on two parallel planes, one legal and the other equitable, with different persons

entitled to each form of estate. It’s also imperative to state that this potential bifurcation

of estate ownership means that an estate of exactly the same quality (e.g. an estate in fee

simple) can be owned at law by A, but in equity by B. therefore, in such a scenario, A can

be said a legal fee simple estate and B an equitable fee simple estate.

For historical reasons `legal estates and equitable estates have differing incidents’, it’s

truly the case that the person owning either type of estate has a right of property41,

indeed, much of the complexity of today’s law of property and land law results from

the potential duality of estate ownership, for a midst other consequences it makes

possible that most distinctive of common law contributions to jurisprudence, the

institution of trust. Below herein are the three main types of freehold of estate, each of

which differed in the length of time for which the grant of the land would last.

2.4.1 Fee simple Estate;

The first of the estate was the fee simple. This is a perpetual grant of proprietorship of

land, meaning that the grant can never come to an end. A person who enjoys a fee

simple in the land is technically a tenant of the Crown, but since the interest can never

40 Mabo v Queensland (No. 2) (1992) per Deane & Gaudron JJ. 41 Tinsley v Milligan (1994) C.A Per Lord Browne- Wilkinson.

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end it is tantamount to absolute ownership of land for all practical purposes. So that in

the Walshingham’s Case42, where an estate in fee simple was described as ``a time in the

land without end’’, imputing that estate in fee simple may be transferred to others and

on their death will pass as part of the owner’s estate, either by will or according to the

rules of intestacy.

2.4.2 Fee-tail Estate.

The fee tail, or entailed estate, was a grant of land which can only pass to lineal

descendants of the original grantee. In Walshingham’s Case the description of a fee

simple is echoed by the fact that as `` time in the land…for as long as the grantee has

issues of his body’’. It’s been insinuated that the precise terms of fee-tail could vary, so

that in some cases the land was granted only so long as the original grantee had male

lineal descendants, or in some rare cases female lineal descendants.

2.4.3 Life Estate

A life estate is a grant of the land for the lifetime of the grantee only and it automatically

comes to an end on his death. The life interest is transferable, but the estate will still

come to an end on the death of the original grantee and not on the death of the

transferee43.

Be that as it may, while regarding the concept property in land, in the absence of any

generalized concept of dominium or direct ownership of land, the historic technique of

the common law has been to parcel up various degrees of socially approved control

over the resource of realty, describing each parcel of control in terms of some artificially

defined conceptual entitlement in respect of the land. It’s also been propounded that

that the precise quantum of control which any individual has over a particular block of

land or as one might just easily say44, the amount of `property’ which he or she has in

42 (1573) 2 Plowd. 547 43 Supra note 21 p31. 44 Supra note 20 p.34

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that land-is therefore demarcated by size of the ‘estate` or ‘interest` which he or she

holds.

To add to that, other bundles of entitlement connote that the right-holder enjoys

significantly less control over, i.e, has only a limited quantum of `property’ in land. For

instance, the person who owns an easement to use another’s land as communal garden

can certainly claim to have some `property’ but not to the extend as to dictate that a

flower bed be maintained for ever in particular location in the garden, as was the

holding in Jackson v Mulvaney45. Further it’s been well settled Copeland v Greenhalf46 that

such kind of claim to a much more intense degree of control over the terrain is

inconsistent with the `estate’ actually owned and its, instead, an illicit assertion of some

rather larger quantum of `property’ in the land such as that denoted by a fee simple

estate.

2.5 CONCLUSION

In Kenya today, it’s been asserted and in definitive terms, that tenure refers to the terms

and conditions under which access to land rights are acquired, retained, used, disposed

of, or transmitted. Formal rules of tenure, therefore, define the nature, contents, and

scope of property rights in land or other resources and the conditions under which

45 (2003) All.E.R 25. 46 (1952) A.ll. E.R 37

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those rights are to be enjoyed47. Tenure systems represent relations of people in society

with respect to the essential and often scarce land.

Elsewhere it’s been averred that land tenure refers to possession or holding of the rights

associated with each parcel of land. It ordinarily has at least three dimensions namely;

people, time and space48. In so far as people are concerned, it is the interaction between

different persons that determines the exact limits of the rights any one person has to a

given parcel of land. These rights are ordinarily not absolute since there are rules that

govern the manner in which the person with tenure is to utilize their rights. While the

time aspect of tenure determines the duration of one’s rights to land, spatial dimension

of tenure limit the physical area over which the rights are to be exercised. The spatial

dimension of tenure may be difficult to delineate in exclusive terms since different

persons may exercise different rights over the same space at different times.

That said, there is however one inescapable factual truth that the people of Kenya,

collectively as a nation, community and individuals own all land in Kenya as envisaged

in Chapter 5 of the Constitution. Land is 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. The

three main tenure systems include public, community and private tenure49.

CHAPTER THREE

3.0 INTRODUCTION

This Chapter gives a sequential chronicles of the land history as well as the land

problems that have for a long time been center-stage in the quest towards a better land

regime.

47 Supra note 18. 48 Supra note 23. 49 Article 62, 63 & 64, Chapter 5, Constitution of Kenya 2010.

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3.1 HISTORICAL GLANCE ON LAND REGIME

3.2.1 Pre- colonial

As earlier noted, land history in this country is and has always been a sorry tale. A tale

that leaves many shocked at the egregious acts that were committed at colonial times

and post-colonial era. A historical legacy of despotic institutions and practices helps

explain these unsavory outcomes. In the pre-colonial times land was mainly owned

communally. 50

Tenure relations under this customary system were controlled by some socially distinct

authority usually comprising of a functionary e.g. a chief, an elder, council of elders,

spiritual leader etc. Such an authority solved the problem of allocation by overseeing

the access, management and use of land.51 Control was for the purpose only of

guaranteeing access to land and the resources found on it.

Decisions about whom to exclude and who not to exclude also rested with this

controlling authority. tenure was family based and the head of the family held rights on

behalf of other family members, individual and group membership of the social unit of

production or political community had guaranteed rights of access to land or other

natural resources, rights of control were vested in the political authority of the unit or

community , private property rights accrued to individuals because of the investment of

their labor in exploiting resources, and resources which do not require extensive

investment were shared such as common pasturage and managed by the relevant

political authority or persons with appropriate jurisdiction.

However with the introduction of colonialism, these customary conceptions about use

and ownership of land began to be eroded. The colonial masters brought with them

50 Supra note 1 pp76. 51 Supra note 4 pp 45-98.

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new institutions which systematically undermined the traditional socially accepted

institutions.

3.2.2 Colonial phase.

In the colonial period one of the main reasons as to why the Whiteman colonized Africa

was for the supply of raw materials for their industries most of these raw materials

included raw materials inform of agricultural products as such they had to take

ownership of the major raw material in the production of agricultural product. 52

The incidence of colonialism in Kenya dates back, generally, to the scramble for Africa

vide the Berlin conference of 1885, and, particularly, the declaration of a protectorate

over much of what is today Kenya on 15th June 1895. From then the British rule

endured until 12th December 1963 when Kenya attained independence.

Throughout this period, the major concern of the colonial masters was capital

accumulation. It was inevitable that the colonial administration would introduce the

English system of land holding for a number of reasons. Land was a central tool of

social and economic control for the colonial government. Such was the imprint of the

colonial government that, at independence, the Kenyan government continued with a

slightly modified land use management regime of the colonial government.53

These included the misconception that the notion of property ownership was not clearly

understood to the native and he did not actually own the land that he occupied and that

it was necessary to determine the proprietary interests. The settlers having come from

52 Jacqueline M. Klopp Pilfering the Public: The Problem of Land Grabbing in Contemporary Kenya Africa Today, Volume 47, Number 1, Published by Indiana University Press, Winter 2000, pp. 78-100. 53 Aggrey T; Genealogy of Land Ownership, Use and Management Problems in Kenya during the Pre-August 2010 Constitution Period. Pp 45-60.

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areas that had developed systems of holding land needed assurances that having come

to unknown territory, their interests in the land would be secure.54

The colonial masters brutally forced the native Kenyans in fertile areas into small

villages thus alienating them from their chunks of land where they used to grow food

crops and turned them into commercial purposed land growing cash crops such as

cotton, coffee which were later to be taken to Britain for value addition. 55

This lands are what are now referred to as the white highlands which covered a large

area of central Kenya and central rift valley, some of the dissatisfied natives went into

the bush and started advocating against the brutality and injustices that had befell them

forming the popular Mau Mau fighters, some decided to stay on and to some extent

collaborate with the whites gaining the tag of so called home guards and others being

elevated to chiefs.

With the control of the economic institutions they manipulated their positions to get

huge loans and buy the farms from the whites thus leaving the Mau Mau landless this

situation would later lead to creation of the Mungiki who are sons of the Mau Mau.56

They settled in this new bought lands that were not originally their native lands at the

expense of the original natives especially in the rift valley and gave them names from

their dialect and such example would be an area in Nakuru called kiamunyi which

symbolizes the communities that were settled there that is kia-kiambu ,mu-murang'a,

nyi-nyeri . 57With the continual subdivision of land and increase in population density

people started to notice how they had been ripped away from the land and started

54 Ibid pp 50-55. 55 Dr Benson Mulemi; Historical Roots of Land-Related Grievances in Kenya, August 2011, pp 57-90. 56 Supra note 54 pp60-90. 57 Supra note 55 pp 70.

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accusing others of having invaded their land leading to land based conflicts which were

further fueled by politicians who rally the ethnic and tribal masses.

3.2.3 Post-colonial

Political liberalization in Africa is a more problematic process than earlier thought.

Powerful actors will attempt to maintain patrimonial control by developing creative

counter-strategies to change. In addition to adoption of the colonial land laws, its be

noted that the independence government enacted the Registered Land Act (Cap 300) to

govern land in native reserves that were under Customary Tenure58. Of importance to

assert is the newly established independence state did not depart fundamentally from

the course that had been set in the colonial period. They continued with the process of

land adjudication, consolidation and registration.

The dual land holding system that had been there during the colonial times stayed.

What would happen is that as more and more areas got covered by the adjudication

process, it gave way to the statutory system the ultimate goal being to bring about a

unified registration system that was to complete regulated by the Registered Land Act.

However, given that this process was to be gradual, this was to take a while and so dual

system has persisted.

The registration process has been accompanied by problems with some people missing

out due to several factors including fraud, corruption, the issue of freedom fighters who

went to the forest during the fight for independence hence missing out on the

registration process, grabbing of public land and registering the same in private hands

leading to calls for land reforms was part of the new constitutional dispensation

package.

58 Cap 300 Laws of Kenya.

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3.3 LAND INJUSTICES

3.3.1 Corruption & Fraud

The intricate web of corruption manifests itself in the most unique and ambiguous

manner. These include but not limited to areas like ; Settlement Schemes & Trust Lands,

Urban, State & Ministries’ Land, Forestlands, National Parks, Game Reserves,

Wetlands, Riparian Reserves & Protected Areas

3.3.2 Settlement Schemes & Trust Lands

Indeed corrupt men and women infiltrated the area of settlement schemes and trust

land. It’s reported59, that Trust land, including settlement scheme land purchased by

government with international loans from European settlers for settlement by African

smallholders or carved out of Trust land, has been similarly abused. The Commission

found that, overall, whilst the establishment of settlement schemes and their subsequent

allocation in the early years of independence generally conformed to the original

objectives, in latter years there was extensive deviation, with much land having been

allocated for purposes other than settlement and agricultural production.

Further, 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 the needs of the agricultural industry

by developing high quality seeds or livestock or undertaking research etc, were illegally

established as settlement schemes and subsequently illegally allocated to individuals

and companies, often as political reward or patronage60.

59 The Report of the Commission of Inquiry into the Illegal/Irregular Allocation of Public Land (Government Printer, Nairobi. 60 Ibid , the Commission pp. 134-5

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3.3.3 Forestlands, National Parks, Game Reserves, Wetlands, Riparian Reserves &

Protected Areas.

The Ndungu Commission found 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.61

3.3.4 Urban, State & Ministries’ Land

This is another area where land was expropriated and illegal acquisitions occurred. It

was documented, that various Commissioners of Lands made direct grants of

government land without any authority from the President. Forged letters and

documents were used to allocate land in numerous instances, with many records at the

Ministry of Lands and Settlements having been deliberately destroyed. Often, land was

sold by grantees without any adherence to the conditions laid down by letters of

allotment, and many illegal titles to public land were transferred to third parties, often

State Corporations, for massive sums of money. Land allocated to state corporations is

‘alienated land’, but has been illegally allocated to individuals or companies in total

disregard of the law. Such land was customarily sold at less than market value to

allottees, who often proceeded to sell it other state corporations at amounts far in excess

of market value62. Whilst, at other times, corporation land was allocated by the

Commissioner of Land to individuals without any reference to corporate management

whatsoever. Through such methods, ‘a civil servant, a politician, a political operative

etc would transform from an ordinary Kenyan … into a multi-millionaire’.63

3.3.5 Women’s Land Rights under African Customary Law

61 Supra note 59 p 148. 62 Supra note 59 p.89. 63 Supra note 59 p. 90.

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Professor Patricia Kameri-Mbote64, notes sadly, that in Africa most systems of

customary law, women regardless of their marital status cannot own or inherit land.

She further adds, that women are assumed to be transient within the polity and

therefore not strategic as grantees of rights to land which constitutes the core of a

community’s existence. Besides, there is the perception that women are part of the

wealth of the community and cannot therefore be the locus of land rights’ grants.

Therefore, in Kenya women’s access to land was only via a system of vicarious

ownership, through men as husbands, fathers, uncles, brothers and sometimes sons65.

In essence customary rules have the effect of excluding females from the clan or

communal entity, which rules then serve to exclude females from ownership. Attempts

by women to control property, especially land, are considered by the community as

misbehavior.66

3.3.6 Coast land problem

While inequalities in land distribution is a national problem, the one in the coastal belt

is unique, as the injustices are traced to the pre-colonial period and only the faces

behind them have changed over time.

64Patricia K, The land has its owners! gender issues in land tenure under customary law in Kenya: IELRC WORKING PAPER International Environmental Law Research Centre International Environment House Chemin de Balexert 7 1219 Châtelaine Geneva, Switzerland .2005 – 9. Pp 1-13. 65 UNHCS, Women’s Rights to Land, Housing & Property in Post Conflict Situations & During Reconstruction: A Global Overview (Land Management Series No.9, 1999). Pp 40-80. 66 Supra note 59 p 7.

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It’s noted that the colonial government introduced a system whereby those claiming

ownership rights within the Ten Mile Coastal Strip could get titles under the Land Titles

Ordinance. This process gave undue advantage to the few who were aware of the office

of the Recorder of Titles. The majority of the local inhabitants at the Coast were ignorant

of this procedure. They could therefore not lay any claims of ownership as envisaged in

the Ordinance. All land Inhabited by them was consequently declared Crown Land.67 It

emerges that many of the people are technically squatters on their own land. Land titles

have been issued to people who are not ordinarily resident in the coastal area.68

3.4 CONCLUSION

Kenya, it be concluded, had fallen into a state of ‘moral decadence’, this epitomized no

more clearly than by the extensive participation in land grabbing by churches, mosques,

temples and other faith institutions, these including such venerable institutions as the

Catholic Archdiocese of Nairobi, the Church Commission of Kenya, and the Anglican

Church, not forgetting the menacing land problem at the coast and the dubious

discrimination of ownership of property especially land. Indeed these grinding

problems ought to be brought to a permanent halt. The solution, pundits argue, lie in

67The Kenya LAND Alliance: http://www.icpcafrica.org/annual-reports/The following summary of the Report of the Ndungu Commission on Illegal and Irregular allocation of public land provides an insight into a critical. Accessed on 2/9/2014. 68Supra note 67 p 1-24.

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the implementation of the Constitution of Kenya 2010 and the ameliorative new land

laws.69

As the issue of historical injustices in regards to land rights is complex, manifesting

itself in numerous forms and magnitude, and affecting different communities across the

country. Different communities have responded to these injustices in varying degrees,

but fundamentally, very little, if anything, has been done to address them. While

processes that led to community dispossession may have emanated from the

colonization and colonial policies, the present generations continue to witness and

experience its manifestations and impacts.70

CHAPTER FOUR

4. 0 INTRODUCTION

This chapter deliberately interrogates the extent to which the Constitution of Kenya

2010 has put in place mechanisms to respond to the various issues that have been

voiced by Kenyans as land reform issues. The chapter further, takes a snapshot at the

new land laws and thereafter makes an inquisitorial look at the emergent jurisprudence

from our courts of law. Herein, in closure, the paper answers impliedly the

fundamental question that is the crux of this chapter, to wit, “is the Constitution of

Kenya 2010, a panacea to the land problem?”

69 Supra note 59 pp.182-3 70 Supra note 67 pp 3-27.

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In that regard a plethora of caselaw,71 has already emanated from the courts clearly

charting the way forward. So that in the matters of Susan Waithera Kariuki & 4 others

v Town Clerk, Nairobi City Council & 2 others,72 in the matter of Satrose Ayuma and

11 others v Registered Trustees of the Kenya Railways Staff Retirement Benefits

Scheme & 3 others and also in the matter of Ibrahim Sangor Osman V Minister of

State for Provincial Administration & Internal Security73, there is definite

jurisprudence which is quickly emerging, that is ameliorative.

However, regardless of the robust provision under of the Constitution of Kenya 2010

touching on land and matters incidental to, its saddening to note that Land, as a vital

resource to livelihood, has been inequitably distributed and certain communities have

felt that individual interests in land have been elevated at the expense of their group

interests. Pastoralists’ lands are no longer managed through sustainable norms, rules,

beliefs and practices of indigenous communities74, but through “legal-structural

authoritarian-rights that emphasize individual tenure and de-emphasize community

land rights.

71 In the matter of Satrose Ayuma and 11 others v. Registered Trustees of the Kenya Railways Staff Retirement Benefits Scheme & 3 others. Petition No.65 of 2010, High Court of Kenya at Nairobi. The High court was very emphatic when it took a glimpse on the overwhelming provisions of the Constitution 2010, Article 2(5,6) the lend credence to the applicability of the UDHR and the ICESCR to declare the eviction illegal since it violated the right to housing. It also required that internationally accepted guidelines on eviction be used in conducting evictions. 72 [2011] eKLR, wherein, the petitioners sought a conservatory order to restrain the respondents, their servants and/or agents from evicting them or any of the residents in the areas known as Kaptagat village along Kaptagat road within Kitsuru location. Musinga J, was very categorical in asserting the right to housing was a crucial and integral element vis-à-vis the right to property through eviction. 73 [2011] eKLR, This Petition was filed on 23/2/2011 by the Petitioner on his behalf and on behalf of 1,122 persons who were evicted from Bularika, Bulamedina, Sagarui, Naima, Bulanagali and Gesto (commonly known as “Medina location”) on 24th, 30th and 31st December 2010. Those evicted included children, women and the elderly. Some of the children were school-going. The Petitioners were evicted from unalienated public land in respect of which title deeds have not been issued. The court did not hesitate to pump in the robust provisions of the Constitution 2010. It was held that forced eviction was a violation of the fundamental right of the Petitioners to accessible and adequate housing as enshrined in article 43(1) (b) of the Constitution of Kenya 2010. 74 Tom Ojienda, A critical look at the land question in the new Constitution, Published 13/01/2011

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At the Coast, the indigenous Mijikenda communities have for generations been

rendered squatters at the behest of political stooges. Women’s rights to land are unequal

to those of men in Kenya. Their rights to own, inherit, manage, and dispose of land are

under constant attack from customs75, laws, and individuals including government

officials who believe that women cannot either be trusted with or do not deserve

property. This is a sorry and sad state of affairs that need urgent and concerted effort to

ameliorate the issues.

4.1 CONSTITUTION OF KENYA ON LAND CHAPTER

The most appalling thing to note is, land injustices in Kenya predate independence, and

the post-independence governments did not make any effort to redress the problems

created by the colonial government. Instead, successive governments facilitated land

grabbing by a few political and economic elite at the expense of the76, non-elites who are

the significant majority. It was not until Kenyans , butchered themselves to levels

unprecedented after the botched 2007 elections that sanity dawned on them, that indeed

we needed a new order that will remedy the past aberrations.

Thus the Constitution of Kenya 2010 takes cognizance of these failures of past land

management systems and outright dispossessions of land and therefore calls for new

legislation to be put in place that will question the legality of titles granted through

allocation of public land, and take corrective measures as appropriate. In brief, its

espoused that land in Kenya shall be held, used and managed in a manner that is

equitable, efficient, productive and sustainable77, and in accordance with the following

principles— equitable access to land; security of land rights; sustainable and productive

management of land resources.

Moreover, the principle of management of land shall also include transparent and cost

effective administration of land; sound conservation and protection of ecologically

75 Ibid p 2 76 Public land, historical land injustices and the new Constitution, Constitution Working Paper Series No. 9: p 33 77 Article 60(1) Constitution of Kenya 2010.

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sensitive areas; elimination of gender discrimination in law, customs and practices

related to land and property in land; and encouragement of communities to settle land

disputes through recognized local community initiatives consistent with the

Constitution78.

It’s established that the principles shall be implemented through a national land policy

developed and reviewed regularly by the national government and through

legislation79.

Another crucial matter that had bedeviled this nation for eons has been put to rest by

the Constitution-when land is unequivocally classified into three distinct and

appropriate regimes, so to say. Land in Kenya is classified as public, community or

private80. The Constitution avers that, Public land ,is land which at the effective date

was unalienated government land as defined by an Act of Parliament in force at the

effective date, land lawfully held, used or occupied by any State organ, except any such

land that is occupied by the State organ as lessee under a private lease; land transferred

to the State by way of sale, reversion or surrender; land in respect of which no

individual or community ownership can be established by any legal process; land in

respect of which no heir can be identified by any legal process81.

It further goes ahead to name what includes and constitutes Public land, as all minerals

and mineral oils as defined by law; government forests other than forests to which

Article 63 (2) (d) (i) applies, government game reserves, water catchment areas, national

parks, government animal sanctuaries, and specially protected areas; all roads and

thoroughfares provided for by an Act of Parliament; all rivers, lakes and other water

bodies as defined by an Act of Parliament; the territorial sea, the exclusive economic

zone and the sea bed; the continental shelf; all land between the high and low water

marks; any land not classified as private or community land under the Constitution;

78 Article 60(1), (a), (b), (c), (d), (e) Constitution of Kenya 2010. 79 Article 60(2) Constitution of Kenya 2010. 80 Article 61(2) Constitution of Kenya 2010. 81 Article 62(1) Constitution of Kenya 2010.

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and any other land declared to be public land by an Act of Parliament in force at the

effective date; or enacted after the effective date82.

It’s expected 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, if it is classified under ,article 62 (1) (a), (c), (d) or (e)83.

Whereas it 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 if

it falls under article 62(1), (f-m)84.

Another classification is that of Community land, shall vest in and be held by

communities identified on the basis of ethnicity, culture or similar community of

interest85. Its established that Community land consists of land lawfully registered in

the name of group representatives under the provisions of any law; land lawfully

transferred to a specific community by any process of law; any other land declared to be

community land by an Act of Parliament; and land that is lawfully held, managed or

used by specific communities as community forests, grazing areas or shrines; ancestral

lands and lands traditionally occupied by hunter-gatherer communities; or lawfully

held as trust land by the county governments86, but not including any public land held

in trust by the county government under Article 62 (2). Conversely, any unregistered

community land shall be held in trust by county governments on behalf of the

communities for which it is held87. This only emphasizes the very goal that the drafters

82 Article 62(1), (f),( g),( h),( I),( j),( k),( l),( m),( n) Constitution of Kenya 2010. 83 Article 62(2) Constitution of Kenya 2010. 84 Article 62(3) Constitution of Kenya 2010. 85 Article 63(1) Constitution of Kenya 2010. 86 Article 63(2) Constitution of Kenya 2010. 87 Article 63(3) Constitution of Kenya 2010.

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of the Constitution intended-to empower communities in use and management of their

land.

And last on the classification of land is one important premise-Private land and it

consists of registered land held by any person under any freehold tenure; land held by

any person under leasehold tenure88; and any other land declared private land under an

Act of Parliament.

Be that as it may, another positive step that was conceived by the Constitution of Kenya

2010, where there is a critical in reduction of the near infinite 999 leasehold interests by

non-citizens to some determinable period of 99 years. Its espoused that a person who is

not a citizen may hold land on the basis of leasehold tenure only, and any such lease,

however granted, shall not exceed ninety-nine years89.

It’s petrifying to notice how land grabbers have in the past hidden behind corporations,

including foreign corporations, to fleece the public of its land. This time round, the

loopholes have sealed. It’s provided that a body corporate shall be regarded as a citizen

only if then body corporate is wholly owned by one or more citizens90. And also

another very important proviso has been that which grants Parliament obligation to

enact legislation ensuring that investments in property benefit local communities and

their economies91.

A more eminent step was taken further to ensure reprieve to Kenyans through the

establishment of the National Land Commission92. This step is in consonance with the

prior objective93, whereupon it’s provided for the establishment of a legal and

88 Article 64 Constitution of Kenya 2010. 89 Article 65(1) Constitution of Kenya 2010. 90 Article 65(3) Constitution of Kenya 2010. 91 Article 66(2) Constitution of Kenya 2010. 92 Article 67 Constitution of Kenya 2010. 93 Section 179 National Land Policy 2009.

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administrative framework to investigate, document and determine historical land

injustices and make recommendations for their resolution. In the long run, this is put

into action by the dictates of Article 67 of the Constitution of Kenya 2010.

The mandate of the National Land Commission (herein the Commission) includes,

94inter alia to manage public land on behalf of the national and county governments; to

recommend a national land policy to the national government; to advise the national

government on a comprehensive programme for the registration of title in land

throughout Kenya-this can be said to be among the most crucial mandate bestowed to

the Commission.

Moreover it’s expected of the Commission to conduct research related to land and the

use of natural resources and make recommendations to appropriate authorities. It’s also

incumbent upon the Commission to initiate investigations, 95on its own initiative or on a

complaint into present or historical land injustices and while at it recommend

appropriate redress. Another important function is to encourage the application of

traditional dispute resolution mechanisms in land conflicts. And fundamentally it will

be tasked with assessing tax on land and premiums on immovable property in any area

designated by law and to monitor and have oversight responsibilities over land use

planning throughout the country96.

Thus from the foregoing, can be deduced that the administrative structures for

management of land in Kenya have been changed. The National Land Commission will

94 Article 67(2) Constitution of Kenya 2010. 95 Article 67(2), (e) Constitution of Kenya 2010. 96 Article 67(2), (g), (h) Constitution of Kenya 2010.

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have wide powers in the management and administration of public, private and

community land.

4.2 A LOOK AT THE NEW LAND LAWS

Pursuant to the provision of the Constitution of Kenya 2010- that mandatory obliges

Parliament to revise, consolidate and rationalize existing land laws, to revise sectoral

land use laws in accordance with the principles,97 as enunciated in Article 60 (1) and

very importantly to enact legislation to prescribe minimum and maximum land holding

acreages in respect of private land and to regulate the manner in which any land may

be converted from one category to another.

Its espoused further that Parliament shall also enact legislation touching how to

regulate the recognition and protection of matrimonial property and in particular the

matrimonial home during and on the termination of marriage, to protect, conserve and

provide access to all public land and to enable the review of all grants or dispositions of

public land to establish their propriety or legality98.

97 Article 68 Constitution of Kenya 2010. 98 Article 68(c) Constitution of Kenya 2010.

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In furtherance of its mandate Parliament passed into law three Bills on 25th and 26th of

April 2012. The President assented to the bills immediately and the new land laws

became effective on 2nd May 2012. The new land laws are:

a. The Land Act, 2012.

b. The National Land Commission Act, 2012.

c. The Land Registration Act, 2012.

The new land laws have repealed a number of laws. For instance the Land Registration

Act, 201299(hereinafter LRA) repeals-

i. The Indian Transfer of Property Act.

ii. The Government Lands Act.

iii. The Registration of Titles Act.

iv. The Land Titles Act.

v. The Registered Land Act.

On the other hand the Land Act100, 2012 repeals the following statutes-

i. The Wayleaves Act Cap 292.

ii. The Land Acquisition Act Cap 296.

At the end of the day, what remains to be seen and done, is whether the new land laws

shall meet the threshold set forthwith under the Constitution that will amount to the

much need reform in the dilapidated land sector in the nation Kenya. A number of

question linger in the minds of ordinary citizens and even legal scholars- do the new

land laws provide the necessary flesh and bold to the skeleton provided by the

Constitution or are they just another good-for-nothing laws?

In interrogating the possible scenario of the foregoing concerns and questions, it’s fair to

analyze the new land laws.

99 Land Registration Act 2012. 100 Land Act 2012.

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4.3 LAND ACT 2012

The Land Act 2012, avers that it’s an ACT of Parliament to give effect to Article 68 of the

Constitution, to revise, consolidate and rationalize land laws; to provide for the

sustainable administration and management of land and land based resources, and for

connected purposes.

The Land Act, 2012 is divided into eleven parts101. Part I deals with Preliminary matters,

Part II, tackles the Management of Public Land, Part III covers Administration of Public

Land, whereas Part IV revolves around Community Land, as of Part V talks about

Administration and management of Private Land, Part VI is on General Provision of

Leases, while Part VII touches on General Provision on Charges, Part VIII deals with the

emotive issue of Compulsory Acquisition of Interest on Land, last but not least, Part IX

tackles Settlement Programme as Part X handles Easements and Analogous Rights and

to close up is Part XI that deals with Miscellaneous.

It’s fair to state that the Land Act 2012 applies to 102–

(a) Public land under Article 62 of the Constitution;

(b) Private land under Article 64 of the Constitution; and

(c) Community land under Article 63 of the Constitution and any

other written law relating to community land.

4.3.1 Forms of Tenure and Methods of Acquisition of Title to land.

The following are the forms of tenure,103 espoused and recognized at law-

(a) Freehold;

(b) Leasehold

101 Part I-XI Land Act 2012. 102 Section 3 Land Act 2012. 103 Section 5 Land Act 2012.

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(c) Such forms of partial interest as may be defined under this Act and

other law, including but not limited to easements; and

(d) Customary land rights, where consistent with the Constitution.

Further the Land Act 2012 goes ahead to explicitly assert that there shall be equal

recognition and enforcement of land rights arising under all tenure systems and

nondiscrimination in ownership of,104 and access to land under all tenure systems.

With the inception of the Land Act 2012, it’s now established that title to land may be

acquired through,105

a) Allocation;

(b) Land adjudication process;

(c) Compulsory acquisition;

(d) Prescription;

(e) Settlement programs;

(f) Transmissions;

(g) Transfers;

(h) Long term leases exceeding twenty one years created out of private land.

4.3.2 Administration and management of Private Land

On the issue regarding the administration and management of Private Land, its

espoused that no suit shall be brought upon a contract for the disposition of an interest

104 Section 5(2) Land Act 2012. 105 Section 7 Land Act 2012.

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in land unless the contract upon which the suit is founded,106 is in writing and

moreover, is signed by all the parties thereto and the signature of each party signing has

been attested to by a witness who was present when the contract was signed by such

party107.

This can be imputed to mean the legislature aimed at curing the incessant problem of

fake contracts on land. Further it’s espoused that where purchaser has entered into

possession of the land, the vendor may exercise his or her contractual right to rescind

the contract by reason of a breach of the contract,108 by the purchaser by either resuming

possession of the land peaceably or obtaining an order for possession of the land from

the court.109

Under Part V of the Land Act 2012, the whole concept of ‘’transfer’’ has been defined to

include a conveyance, an assignment, a transfer of land, a transfer of lease or other

instrument used in the disposition of an interest in land by way of transfer110, so that a

proprietor may transfer land, a lease or a charge to any person (including himself or

herself), with or without consideration, by an instrument.111

The transfer shall be completed by the registration of the transferee as proprietor of the

land, lease or charge. The transferee of a charge may require the charger to execute the

transfer for the purpose of acknowledging the amount due under the charge at the date

of execution of the transfer.112

4.3.3 Provisions on leases

It’s been explicitly averred that unless otherwise provided in a lease instrument, the

provisions of Part VI shall apply to all leases, other than leases governed by legislation

106 Section 38(1) Land Act 2012. 107 Section 38(1), (a), (b) Land Act 2012. 108 Section 39 Land Act 2012. 109 Section 39(a) (b) Land Act 2012. 110 Section 43(1) Land Act 2012. 111 Section 43(2) Land Act 2012. 112 Section 43(2), (3) Land Act 2012.

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relating to community land.113 However, there is a further ameliorative clause that talks

of parties to a lease made or coming into effect before the commencement of the Land

Act may agree, in writing, to adopt or incorporate any of the provisions of this Part into

that lease and any provisions adopted or incorporated shall, unless the agreement

otherwise provides, become a part of the lease and shall be enforceable in every respect,

with effect from the date of the agreement. 114

Moreover, periodic leases are deemed to exist under certain circumstances;115

(a) the term of the lease is not specified and no provision is made for the giving of notice

to terminate the tenancy, the lease shall be deemed to be a periodic lease;

(b) the term is from week to week, month to month, year to year or any other periodic

basis to which the rent is payable in relation to agricultural land the periodic lease shall

be for six months;

(c) the lessee remains in possession of land with the consent of the lessor after the term

of the lease has expired.

And also where, if the owner of land permits the exclusive occupation of the land or

any part of it by any person at a rent but without any agreement in writing, that

occupation shall be deemed to constitute a periodic tenancy.116

On the other hand it’s provided that a short term lease is;117

(a) made for a term of two years or less without an option for renewal.

(b) a periodic lease.

113 Section 55(1) Land Act 2012. 114 Section 55(2) Land Act 2012. 115 Section 57(1) (a), (b), (c) Land Act 2012. 116 Section 57(2) Land Act 2012. 117 Section 58(1) (a), (b), (c) Land Act 2012.

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Importantly, it’s provided that a short term lease may be made orally or in writing and

that the short term lease is not a registrable interest in land.118

On the issue of Lessee remaining in possession after termination of lease without the

consent of lessor, its provided that incase a lessee remains in possession of land without

the consent of the lessor after the lease has been terminated or the term of the lease has

expired, all the obligations of the lessee under the lease continue in force until such time

as the lessee ceases to be in possession of the land.119

However, a lessor who accepts rent in respect of any period after the lease has been

terminated or the term of the lease has expired, shall not, by reason of that fact, be

deemed to have consented to the lessee remaining in possession of the land, or as

having given up on any of the rights or remedies of the lessor against the lessee for

breach of a covenant or condition of the lease.120

For purposes of emphasis it’s been properly pointed, that for the avoidance of doubt, a

lease of land may be made for a term to begin on a future date, not being later than

twenty-one years after the date on which the lease is executed.121 And a future lease,

which is expressed to be for a period of more than five years, shall be of no effect unless

and until it is, registered.122

In essence a covenant by the lessee not to take an action without the consent of the

lessor shall be construed as requiring the lessor not unreasonably to withhold consent

118 Section 58(2) Land Act 2012. 119 Section 60(1) Land Act 2012. 120 Section 60(2) Land Act 2012. 121 Section 61(1) Land Act 2012. 122 Section 61(2) Land Act 2012.

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to the taking of that action by lessee123, while where a lessee applies to the lessor for

consent the lessor shall inform the lessee, in writing, within a reasonable time after

receiving the application, whether the lessor is giving or refusing consent.124

Nonetheless, consent is unreasonably withheld if the lessor as a condition of or in

relation to the giving of consent;

(a) requires the lessee to pay any money, by way of additional rent, or a

premium or a fine or other consideration for the consent, other than the payment of the

lessor's reasonable expenses incurred in connection with the giving of consent;

(b) imposes on the lessee any unreasonable condition or precondition.

(c) the lessee has requested for consent to transfer or assign the lease or enter into

a sublease, and the lessor objects to the gender or nationality or other personal

characteristic of the transferee, assignee or sub-lessee, in circumstances that a

reasonable person would consider those factors irrelevant to the granting of such

consent.

It’s espoused that the lessor shall have the right to forfeit the lease if the lessee;125

(a) commits any breach of, or omits to perform, any agreement or condition on his

part expressed or implied in the lease; or

(b) is adjudicated bankrupt; or

(c) being a company, goes into liquidation.

Moreso, it’s established that the right of forfeiture may be exercised, where neither the

lessee nor any person claiming through or under him is in occupation of the land, by

entering upon and remaining in possession of the land or enforced by action in the

123 Section 67(1) Land Act 2012. 124 Section 67(2) Land Act 2012. 125 Section 73(1) Land Act 2012.

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court.126 And noteworthy is that forfeiture of a lease determines every sublease and

every other interest appearing in the register relating to that lease.127

4.3.4 Provisions on Charges

There has emerged a retrospective application on the general provision touching on

charges, where it’s stipulated, the Part applies to all charges on land including any

charge made before the coming into effect of the Act and in effect at that time, any other

charges of land which are specifically referred to in any section in Part VII.128 Regarding

the phrase ‘the charged’ land, it’s been referenced to impute and include a charged

land, a charged lease and sublease and a second or subsequent charge.129 Further it’s

expected that An owner of private land or a lessee, by an instrument in the prescribed

form, may charge then interest in the land or a part thereof for any purpose including

but not limited to securing the payment of an existing or a future or a contingent debt or

other money or money's worth or the fulfillment of a condition.130

Another important and sensitive provision is the one dealing with the issue of

matrimonial property. Its espoused that A charge of a matrimonial home, shall be valid

only if any document or form used in applying for such a charge, or used to grant the

charge, is executed by the chargor and any spouse of the chargor living in that

matrimonial home, or there is evidence from the document that it has been assented to

by all such persons. 131In fact, matrimonial home has been defined to mean, ‘‘any

126 Section 73(2) Land Act 2012. 127 Section 74 Land Act 2012. 128 Section 78(1) Land Act 2012. 129 Section 78(2) Land Act 2012. 130 Section 79(1) Land Act 2012. 131 Section 79(3) Land Act 2012.

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property that is owned or leased by one or both spouses and occupied by the spouses as

their family home’’132.

4.3.5 COMPULSORY ACQUISITION OF INTERESTS IN LAND

Many legal scholars consider eminent domain an inherent or preexisting power of the

state—an attribute of sovereignty that does not require an express grant of authority.133

The authority of eminent domain is derived from the feudal notion that as the

sovereign, the state holds a radical title to all land within its territory. The exercise of

eminent domain extinguishes all private property rights and forces involuntary

transfers of property from private owners to the government or its designated

agency.134

The concept of eminent domain has be given its sacred place in the laws of Kenya.

However, it must be stated upfront to avoid confusion, that, This power, although

stricto sensu inconsistent with the concept of private property, is one way in which the

private interest of a landowner is reconciled with wider public interests . Therefore for

land ownership to be a viable institution, it should be possible for it to be expropriated

in the public interest, lest it become a curse upon society.135

This argument further buttress the point that absolute rights, however, are

unfathomable in the modern world; hence, the private property rights can only be

understood in the context of society. In a gist, its provided that a person shall only be

deprived of property in certain circumstances, namely when the deprivation results

132 Section 2 Land Act 2012. 133Peter G, Rugemeleza O, Jacob M; Protected Areas and Property Rights; Democratizing Eminent Domain in East Africa. World Resources Institute 2008. pp 17-20. 134 Peter V; Placing land rights at the heart of development, Focus on Land in Africa. 2011. P 2 135 Nixon S; Using Eminent Domain Powers to Acquire Private Lands for Protected Area Wildlife Conservation: A Survey under Kenyan Law’, 2/1 Law, Environment and Development Journal (2006), p. 84,

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from an acquisition of land or an interest in land or a conversion of an interest in land,

or title to land,136 in accordance with Chapter Five of the Constitution of Kenya 2010.

Importantly the deprivation contemplated upon, is for a public purpose or in the public

interest and is carried out in accordance with this Constitution and any Act of

Parliament that ensure requires prompt payment in full, of just compensation to the

person; and allows any person who has an interest in, or right over, that property a

right of access to a court of law.137 Nonetheless, occupants of a land and yet they do not

have title to such land, need not worry as long as they did so in good faith, then, they

may receive compensation.138

4.3.6 Procedure for Compulsory Acquisition of Land

Indeed it’s expected that land may be acquired compulsorily if the Commission

certifies, in writing, that the land is required for public purposes or in the public interest

as related to and necessary for fulfilment of the stated public purpose.139

So that when and whenever the national or county government is satisfied that it may

be necessary to acquire some particular land, the respective Cabinet Secretary or the

County Executive Committee Member shall submit a request for acquisition of public

land to the Commission to acquire the land on its behalf.140

It should be noted that it’s the mandate of the Commission to prescribe a criteria and

guidelines to be adhered to by the acquiring authorities in the acquisition of

136 Article 40(3) (a) Constitution of Kenya 2010. 137 Article 40(3) (b) (i) (ii) Constitution of Kenya 2010. 138 Article 40(4) Constitution of Kenya 2010. 139 Section 110 (1) Land Act 2012. 140 Section 107 (1) Land Act 2012.

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land.141However, the Commission may reject a request of an acquiring authority, to

undertake an acquisition if it establishes that the request does not meet the

requirements prescribed under and Article 40(3) of the Constitution of the Republic of

Kenya 2010.142

In the event of approval of a request, the Commission shall publish a notice to that

effect in the Gazette and the county Gazette, and shall deliver a copy of the notice to the

Registrar and every person,143 who appears to the Commission to be interested in the

land.144 It’s important to note that all land to be compulsorily acquired shall be

georeferenced and authenticated by the office or authority responsible for survey at

both the national and county government.145

The Commission has powers to authorize, in writing, any person, to enter upon any

land and inspect that land and to do all things that may be reasonably necessary to

ascertain whether the land is suitable for the intended purpose.146 Thereafter it’s

expected as soon as practicable after entry has been made, the Commission shall

promptly pay in full, just compensation for any damage resulting from the entry.147

To buttress the point, if land is acquired compulsorily, just compensation shall be paid

promptly in full to all persons whose interests in the land have been determined 148and

it’s the sacred duty of the Commission shall make rules to regulate the assessment of

just compensation.149 In the scheme of things, at least thirty days after publishing the

notice of intention to acquire land, the Commission shall appoint a date for an inquiry

to hear issues of propriety and claims for compensation by persons interested in the

141 Section 107 (2) Land Act 2012. 142 Section 107 (3) Land Act 2012. 143 To avoid any contradiction; interested persons shall include any person whose interests appear in the land registry and the spouse or spouses of any such person, as well as any person actually occupying the land and the spouse or spouses of such person as defined under ss. 107(7) of Land Act 2012. 144 Section 107(5) Land Act 2012. 145 Section 107(8) Land Act 2012. 146 Section 108(1) Land Act 2012. 147 Section 109 Land Act 2012. 148 Section 111(1) Land Act 2012. 149 Section 111(2) Land Act 2012.

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land,150 and the notice of inquiry shall call upon persons interested in the land to deliver

a written claim of compensation to the Commission, not later than the date of the

inquiry.151

It’s clearly established that for the purposes of an inquiry, the Commission shall have all

the powers of the Court to summon and examine witnesses, including the persons

interested in the land, to administer oaths and affirmations and to compel the

production and delivery to the Commission of documents of title to the land.152 In the

end upon the conclusion of the inquiry, the Commission shall prepare a written award,

in which the Commission shall make a separate award of compensation for every

person whom the Commission has determined to have an interest in the land.153

Subject to the overriding objectives of the article 40(2) of the Constitution of Kenya 2010,

an award shall be final and conclusive evidence of the size of the land to be acquired,

the value, in the opinion of the Commission of the land, the amount of the

compensation payable, whether the persons interested in the land have or have not

appeared at the inquiry.154

While regarding the question as whether if an interest in land is held by two or more

persons as co-tenants , its paramount that the award shall state the amount of

compensation awarded in respect of that interest and the shares in which it is payable to

those persons.155 Another important factor to be taken into account is when making an

award, duty demands that the Commission shall serve on each person whom the

150 Section 112(1) Land Act 2012 151 Section 112(2) Land Act 2012. 152 Section 112(5) Land Act 2012. 153 Section 113(1) Land Act 2012. 154 Section 113(2) Land Act 2012. 155 Section 113(3) Land Act 2012.

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Commission has determined to be interested in the land, a notice of the award and offer

of compensation.156

4.3.7 Settlement Programmes

For a very long time, Kenyans have undergone untold suffering resultant pursuant to or

consequential upon the issue of settlement programmes. To put to a rest this intriguing

issue, it was deemed fit that it’s the sole responsibility of Commission, on behalf of the

national and county governments, implement settlement programmes to provide access

to land for shelter and livelihood.157

Its espoused that the Settlement programmes shall, 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.158 And further to avoid scenes of fraud and

dishonesty, there has been enumerated a list of persons,159 that shall partake in the

identification of beneficiaries. This indeed may help bring an ameliorative effect.

4.4 THE LAND REGISTRATION ACT, 2012.

156Section 114 Land Act 2012. 157 Section 134(1) Land Act 2012. 158 Section 134(2) Land Act 2012. 159 The list of persons shall be members of sub-county committee, shall comprise of; sub-county administrator who shall be the chairperson, a representative of the county government- approved by the county assembly, a representative of the Commission, a national government representative, a representative of persons with special needs, a women’s representative nominated by a local women’s organization prescribed by the county Government and a youth representative prescribed by the county government-as encompassed by s. 134(4) Of Land Act 2012.

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The Act opens by averring that it’s 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.160 To avoid any

contradiction it’s explicitly stated that, except as otherwise provided in the Act, no other

written law, practice or procedure relating to land shall apply to land registered or

deemed to be registered under the very Act so far as it is inconsistent with the Act.161

It’s expected that subject to the Constitution and any other law regarding freedom of

and access to information, the Registrar shall make information in the register accessible

to the public by electronic means or any other means as the Chief Land Registrar may

reasonably prescribe.162

Fundamentally, it’s been clearly asserted and seems it won’t be changing soon; that the

registration of a person as the proprietor of land shall vest in that person the absolute

ownership of that land together with all rights and privileges belonging or appurtenant

thereto.163And so is the registration of a person as the proprietor of a lease shall vest in

that person the leasehold interest described in the lease, together with all implied and

expressed rights and privileges belonging or appurtenant thereto and subject to all

implied or expressed agreements, liabilities or incidents of the lease.164

The Act posits that a certificate of title issued by the Registrar upon registration, or to a

purchaser of land upon a transfer or transmission by the proprietor shall be taken by all

courts as prima facie evidence that the person named as proprietor of the land is the

absolute and indefeasible owner, subject to the encumbrances, easements, restrictions

and conditions contained or endorsed in the certificate, and the title of that proprietor

shall not be subject to challenge, save only when it’s a question of fraud or

misrepresentation to which the person is proved to be a party or and where the

160 Long tittle, the Land Registration Act, No. 3 of 2012. 161 Section 5 Land Registration Act 2012. 162 Section 10 Land Registration Act 2012. 163 Section 24(a) Land Registration Act 2012. 164 Section 24(b) Land Registration Act 2012.

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certificate of title has been acquired illegally, unprocedurally or through a corrupt

scheme.

4.4.1 OVERRIDING INTERESTS

Wholesomely, unless the contrary is expressed in the register, all registered land shall

be subject to the following overriding interests as may for the time being subsist and

affect the same, without their being noted on the register.165 They include but not

limited to;

(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 the 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.

(f) Leases or agreements for leases for a term not exceeding two years, periodic

tenancies and indeterminate tenancies.

(g) Charges for unpaid rates and other funds which, without reference to registration

under the Act, are expressly declared by any written law to be a charge upon land.

165 Section 28 Land Registration Act 2012.

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(h) Rights acquired or in process of being acquired by virtue of any written law relating

to the limitation of actions or by prescription.

(i) Electric supply lines, telephone and telegraph lines or poles, pipelines, aqueducts,

canals, weirs and dams erected, constructed or laid in pursuance or by virtue of any

power conferred by any written law.

4.4.2 Certificate of Title and Certificate of Lease

In the normal scheme of things, the Registrar may, if requested by a proprietor of land

or a lease where no certificate of title or certificate of lease has been issued, issue to him

or her a certificate of title or a certificate of lease, as the case may be, all subsisting

entries in the register affecting that land or lease.166 Anyways notwithstanding that, its

only one certificate of title or certificate of lease shall be issued in respect of each parcel

or lease and no certificate of title or certificate of lease shall be issued unless the lease is

for a certain period exceeding twenty-five years.167 And scenarios where there is more

than one proprietor, unless they are tenants in common, the proprietors shall agree

among themselves on which of them shall receive the certificate of title or the certificate

of lease, and if they fail to agree, the certificate of title or the certificate of lease shall be

filed in the registry.168

4.4.3 DISPOSITION AFFECTING LAND

In disposing of land, now the Act is very explicit that, whatsoever the case and any

attempt to dispose of any lease, charge or interest in land otherwise than in accordance

with the Act or any other law, shall not, extinguish, transfer, vary or affect any right or

166 Section 30(1) Land Registration Act 2012. 167 Section 30(2) (a) (b) Land Registration Act 2012. 168 Section 30(4) Land Registration Act 2012.

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interest in that land, or in the land, lease or charge.169 And in the same breathe

unregistered instrument shall not be prevented from operating as a contract.170

4.4.4 TRANSFERS, CERTIFICATES OF PAYMENT OF RATES AND RENTS.

It’s espoused that a proprietor may transfer land, a lease or a charge to any person with

or without consideration, by an instrument,171in so doing the transfer shall be

completed by filing the instrument and registration of the transferee as proprietor of the

land, lease or charge.172

Regarding the issue of rates, an instrument shall not be registered, not unless , a written

statement, by the relevant government agency, certifying that all outstanding rates and

other charges payable to the agency in respect of the land including rates and charges

for the last twelve months and up to the date of request for transfer have been paid.173

While on the other hand the same is true on rents, wherein the Registrar shall not

register an instrument purporting to transfer or create an interest in land, unless a

certificate is produced with the instrument, certifying that no rent is owing to the

national or county governments in respect of the land.174

169 Section 36 Land Registration Act 2012. 170 Section 36(2) Land Registration Act 2012. 171 Section 37(1) Land Registration Act 2012. 172 Section 37(2) (a) (b) Land Registration Act 2012. 173 Section 38(1) Land Registration Act 2012. 174 Section 38 Land Registration Act 2012.

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And consequently no registration shall accrue on an instrument effecting a transaction

unless satisfied that any consent required to be obtained in respect of the transaction

has been given by the relevant County Land Management Board on the use of the land,

or that no consent is required.175

4.4.5 Dispositions To Prejudice Creditors May Be Set Aside.

The Act further avers that a creditor, public officer, national or county government or

public entity charged with the responsibility for collection of money owing by any

person to the national or county government or any part of may apply to the court for

an order of the court to set aside a prejudicial disposition.176

4.4.6 Leases and Charges

In the normal scheme of things, it’s expected that upon the registration of a lease

containing an agreement, express or implied, by the lessee that the lessee shall not

transfer, sub-let, charge or part with possession of any of the leased land leased without

the written consent of the lessor, the agreement shall be noted in the register of the

lease, and no dealing with the lease shall be registered until the consent of the lessor,

verified accordingly has been produced to the Registrar.177

Whilst regarding the issue of registration of a charge, it’s clear that the Registrar shall

not register a charge, unless a land rent clearance certificate and the consent to charge,

certifying that no rent is owing to the Commission in respect of the land, or that the

land is freehold, is produced to him or her.178

175 Section 39 Land Registration Act 2012. 176 Section 52 (1) Land Registration Act 2012. 177 Section 54(1) Land Registration Act 2012. 178 Section 56(4) Land Registration Act 2012.

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4.5 CONCLUSION

Indeed Kenyans from all over and beyond, needed a change, change that could be

ameliorative. This important and much needed change has been jumpstarted by the

above statutory laws. Every citizen is keenly watching, watching in awe. Others have an

iota of doubt in their hearts, whether the new laws and vigor will be the panacea of the

incessant quagmire in the land sector in this country. It’s hoped and trusted that this

will not amount to a time wasting exercise where activity does not equal productivity.

Some legal practitioners and scholars alike have made their contemporary analysis and

rightly observed that the upshot is that the Land Act 2012 and the Land Registration

Act 2012 have a fundamental, potentially adverse effect on some in relation to rights

over land in particular in so far as securities over land, transfers and leases are

concerned. 179

179 Hamilton, Harrison & Mathews; Preliminary Review of the New Land Legislation. 2012. Nairobi. P. 26

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CHAPTER FIVE

5.0 CONCLUSION AND RECOMMENDATIONS

5.1 INTRODUCTION

The legal and administrative framework so far established and the likely policies that

may give the required roadmap to putting to a rest the genie and ghost that has

haunted Kenyans for so many years, are not enough. Much is needed from within and

without. In simple, the Chapter gives recommendations with a clear and succinct but

brief approaches that could easily be employed.

5.2 THE TRUTH JUSTICE AND RECONCILIATION COMMISSION REPORT.

It’s imperative before advancing any further to take a clear look at the outcome of the

Truth Justice and Reconciliation Commission( hereinafter TJRC). The TJRC was

established pursuant to the TJRC Act,180 which mandated the Commission to make

findings in respect of gross violations of human rights inflicted on persons by the State,

public institutions and holders of public office, both serving and retired, between 12th

December 1963 and 28th February 2008.

180 Truth Justice and Reconciliation Act 2008.

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The Commission was tasked inter alia, to make such findings, which must include the

Commission’s conclusions on: the antecedents, circumstances, factors and context of

such violations; the causes, nature and extent thereof; and perpetrator responsibility

and motives.181

5.3 OVERRIDING RECOMMENDATIONS

When the TJRC finally submitted its report, it was evident that as a matter of fact, land

related injustices are prominent factors that precipitate violence between and within

ethnic tribes in Kenya.182 It follows from the TJRC Report succinctly that all post-

independence governments have failed to honestly and adequately address land-

related injustices that started with colonialism.183

Emphatically, the Final Report, submitted by the TJRC, fundamentally noted a plethora

of issues and the possible formulae that the government could employ in solving the

cancerous land problem. The TJRC, put forth a tacit recommendation that the relevant

government portfolio( in this matter, the National Land Commission) immediately

begins a process of surveying, demarcating and registering all remaining government

lands, including those that were formerly owned or managed by local authorities, all

protected wildlife areas and river banks, among other public lands.184

Evidently, another pertinent recommendation, revolves around the notorious argument

that the National Land Commission should commence work with the Ministry of Lands

181 Section 5 Truth, Justice and Reconciliation Act 2008. 182Report of the Truth, Justice and Reconciliation Commission; Volume IV Chapter ONE. Par 245. 183 Ibid par 248 184 Ibid Vol. 4 p. 67.

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and settlement to undertake adjudication and registration exercises at the coast and all

other areas where the same has not been conducted. Measures shall be designed to

revoke illegally obtained titles to and re-open all public beaches, beach access routes

and fish landing beaches, especially at the coast.185

Another immediate step that should be boldly taken by the National Land Commission

and the relevant Ministry, is to come up with a framework and a plausible design and

implement measures to revoke illegally obtained tittles and restore public easements.

The most notable recommendation that has been seen as the panacea to end fraud and

irregular acquisition of title, oscillates around the issue where the National Land

Commission ought to develop, maintain and regularly up-date a computerized

inventory of all lands in Kenya, including private land that should be accessible to all

Kenyans as required by law. Land registries country wide should be computerized and

made easily accessible as required by the law.186

185 Ibid 186 Supra note pp. 54-55.

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5.4 CONCLUSION

A conclusion of its own kind. It’s sort of a sui generis. That bears in mind one focal

point. A point that is so fundamental and obvious, so that it would possibly amount to

a lie were a research paper or a dissertation touching on a crucial, intriguing and hair-

raising issue such as land, purport to make a conclusion. Nevertheless, having

examined a number of intricate issues ranging from the pre-colonial land to post-

colonial land menaces and ghosts that caused untold suffering, to the brutal land

dispossessions and fraud related to land transactions thereto, the theoretical and

conceptual frameworks, viz the essentials and or dimensions about land and the legal

and equitable land theorem and later on at Chapter three, did a synopsis of the land

injustices as extracted from various Legal report and authorities, whilst at Chapter four,

therein there is a synthesis overview of the new lands- the statutory framework

envisaged post 2010 constitution , viz the Land Registration Act 2012, Land Act 2012.

After the herein above, it’s sufficient to imbue that a tenable conclusion can suffice

despite the earlier assertion.

Indeed land related injustices commenced in yore years, during the period of

colonization at the coast by Arabs and, later, by the British both at the coast and in

mainland Kenya. However, indigenous Kenyans expected the injustices to be fully

addressed soon after independence but the first independence government failed to

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fully and genuinely address the problems. Therefore, at this juncture it’s imperative that

this cancer must be brought to an end immediately by the government of the day.

The new land laws, the reforms in the Judiciary, the established institutions under the

Constitution of Kenya 2010 and the two Houses of the Parliament should be the

trailblazers in heralding the much needed change, now and today in the land sector in

this nation.

The half-hearted and macabre performances of past governments in trying to address

the land problem is the cause and prime reason individuals and communities often

resort to self-help measures, including violence. It’s incumbent upon the relevant

Ministry and now the power wielding National Land Commission, to bring to book the

bandits and thugs who have perpetuated land related injustice. This should be done as

soon as possible within the shortest stint possible-it may work as a deterrent

mechanism to would-be land grabbers.

Another area where there is likely to be some sort of friction, relates the commencement

of the new legislation and the possible way to reconcile the past pieces of legislation. At

the time of writing this dissertation, the applicability of the new pieces of legislation

had not been felt nor even commenced. Many legal practitioners still follow and

observe the past legislation. This is a situation that needs to be fast tracked and as

mentioned, quickly reconciled. Till then, Kenyans, from all walks of life are waiting,

waiting impatiently to see the wheels of change turn.

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BIBLIOGRAPHY

Constitution of Kenya 2010.

BOOKS

Adam Leach (1988): Land Reform and Socioeconomic Change in Kenya” in East Africa

Journal of Peace & Human Rights, Vol 4, No. 1, 1988.

Aggrey T (2010): Genealogy of Land Ownership, Use and Management Problems in

Kenya during the Pre-August 2010 Constitution Period

Bayart, J. (1993): The State in Africa: The Politics of the Belly. London and New York

Longman Press

Dr. Benson Mulemi (2011): Historical Roots of Land-Related Grievances in Kenya,

August.

Gray K. and Gray P, (1981): ‘Real Property and Real People – Principles of Land Law’,

Butterworths, London.

Hamilton, Harrison & Mathews (2012): Preliminary Review of the New Land

Legislation.

Hoebel, E. A., (1954): The Law of the Primitive Man, Harvard University Press, Boston.

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Jacqueline M. Klopp (2000): Pilfering the Public: The Problem of Land Grabbing in

Contemporary Kenya Africa Today, Volume 47, Number 1, Published by Indiana

University Press. Winter.

Jeremy Waldron (1988): The Right to Private property Oxford Press.

Jeremy Bentham (1830): Principles of the Civil Code, Dumont.

Kevin G & Susan F (2009): Land Law, Oxford press.

Lord L, (1972): Introduction to Jurisprudence, 3rd ed. Steven and Sons, London.

Noyes C. R. (1936): The Institution of Property, New York, Longman

Nicola J, John S & Robert P (2008): Land Law, Sweet & Maxwell, 4th edition.

Ojienda Tom (2011): Principles of Conveyancing in Kenya, A practical approach.

Nairobi, LawAfrica.

Onalo P Land Law and Conveyancing in Kenya, LawAfrica Nairobi. Pp12-14

Patricia Kameri-Mbote (2005): The land has its owners! Gender issues in land tenure

under customary law in Kenya: IELRC WORKING PAPER International Environmental

Law Research Centre International Environment House Chemin de Balexert 7 1219

Châtelaine Geneva, Switzerland.

REPORTS

Closing Comments at the Conference on Common Property Resources Management

(1986).

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The Report of the Commission of Inquiry into the Illegal/Irregular Allocation of Public

Land (Government Printer, Nairobi) 2003.

The Truth Justice and Reconciliation Commission Report 2012.

UNHCS, Women’s Rights to Land, Housing & Property in Post Conflict Situations &

during Reconstruction: A Global Overview (Land Management Series No.9, 1999).

TABLE OF STATUTES

The Land Act, 2012.

The National Land Commission Act, 2012.

The Land Registration Act, 2012

The Indian Transfer of Property Act.

The Government Lands Act.

The Registration of Titles Act.

The Land Titles Act.

Registered Land Act Cap 300

Truth Justice and Reconciliation Act 2008

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LIST OF CASELAW

Bernstein v Skyviews & General Ltd (1978) Q.BN 479

Bocardo SA v Star Energy UK Onshore Ltd (2010) SC

Comr for Railways v Valuer- General (1974) HR

Copeland v Greenhalf (1952) A.ll. E.R 37

Elitestone Ltd v Morris (1997) 2 A ll. E.R 513.

Ramroop v Ishmael (2010) 24.

Waverley BC v Fletcher (1995) 4 All E.R. 756.

Parker v British Airways Board (1982) Q.B. 1004.

United States V Causby (1946) SC

Jordan v May (1947) K.B. 427

Hamp v Bygrave (1982) 266 E.G. 720

Mabo v Queensland (No. 2) (1992)

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Tinsley v Milligan (1994) C.A

Jackson v Mulvaney (2003) All.E.R 25.

General comments:

1. Re-read your work and address all typos and grammatical errors

2. Format your work well. All chapters should begin on a new page. Paragraphs should

be separated by one space. All footnotes must come after a fullstop or comma. All

quotes must have quotation marks. The quotation marks must be consistent i.e. if you

decide to use a single quotation mark (‘) it must be applied throughout and if you

choose double quotation mark (“) it must be applied throughout.

3. Every quote must have a footnote at the end. The footnote should cite the source and

page number from which the quote is gotten.

4. If the quote exceeds two lines, it should be indented and the font size reduced to ten.

5. All chapters must have an introduction and a conclusion. The introduction should tell

the reader what the chapter is all about. The conclusion must tell the reader your

findings or conclusion from the discussion.

6. I remember us also agreeing in our last meeting that the laws should be discussed

from a thematic perspective. i.e. under each problem identified in the preceding

chapter you should then discuss how the new laws have attempted to address the

problem. This would mean that the fourth chapter is restructured into different

subheading, each subheading discussing a problem and the solution the new laws

have provided or not provided.

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7. We also agreed that you need to discuss case law, you have not done so! You have

just mentioned a few cases. This is not enough you need to analyse the cases and tell

the reader how the courts have attempted to address the problems you identified.