Property Law Revision

Disclaimer: Still in process of making notes (so this is incomplete)

Week 1: Introduction - The Concept of Property

Readings:

● Chapter 1 of Dr Francis’ book

● Abraham Bell & Gideon Parchomovsky’s paper
● Sukhinder Panesar’s paper
● Guido Calabresi & Douglas Melamed’s paper
● JB Ojwang’s book
● James Krier’s paper

Questions:

● What is property?
● Property from different legal systems?
● Roman law, common law and African perspectives?
● What are the attributes of property?
● How does property relate with other branches of law?
● Contract, Tort and Conveyancing?

Chapter 1 of Dr Francis’ book

The Concept of Property

● The term ‘property’ (proprius, in Latin) means ‘one’s own’.

○ In layman terms, property could be defined as a thing, which denotes that
the subject matter is of a physical nature (e.g. land, a car, a house, a
cow).
○ In legal terms, property denotes a complex group of jural relations
between the owner of a thing and all other individuals.

● The legal views of property from scholars is as follows:

○ According to Jeremy Bentham, ‘property and law are born together and
die together’.
○ According to Felix Cohen, law and property as a label with which an
individual can attach to property which states ‘Keep off X unless you have
 my permission, which I may grant or withhold. Signed: Private Citizen.
Endorsed: The State’.
○ According to Salmond, property is ‘all that is his in law’ -- proprietary rights
(in rem) rather than personal rights (personam), corporeal property
(tangible things or real things) rather than incorporeal property (intangible
things).
■ Stephen Leake echoes Salmond’s sentiments by stating that ‘the
rights to things (jura in rem) have for their subject some material
thing, as land or goods, which the owner may use or dispose of in
any manner he pleases within the limits prescribed by the terms of
his right’.

● Property is viewed as:

○ Rights: static and dynamic, social contract theorists, Waldron, property
regimes, infringement, land & title
○ A bundle of sticks: Honoré’s 11 incidents of ownership, transfer,
criticisms, right to exclude, possess and use
○ A web of relationships: Hohfeld’s framework of rights (duties), privilege
(no rights), power (liability), immunity (disability);
○ Basis of expectations: Holfeldian framework and Bentham
○ Value: Bell, Waldron
○ Vested in some person: public, private, joint, common, natural & jural
persons, article 62
○ Possession: first possession/first occupancy (Pierson v Post), adverse
possession, seisin, criticisms and importance of first possession/first
occupancy
○ Title: De Soto, colonialism, article 61
○ Ownership: land (fee simple absolute), Roman law (dominium), African
perspective (community), English law (doctrine of estates and tenurial
relationships), Honoré (11 incidences)

● Attributes of property:
○ In rem character and in rem quality
○ Security/quality of title
○ Exclusivity
○ Permanence
○ Transferability

● Relationship between property with contracts and torts

 ○ Tort law rules are used to protect one’s property from damage and harm
through liability rules, where one is held liable for damage to the property
of another.
○ Contractual rules are used to facilitate efficiency in the holding of property
and to determine the extent of one’s claims to property (e.g. the Law of
Contracts Act requires all land transactions to be done in writing).

Abraham Bell & Gideon Parchomovsky’s paper

Theory of Property

● Covers the following theories of property:

○ Natural Rights
○ Positivism
○ Utilitarianism
○ Relational Conceptions
○ Value: on its own, in relation to other theories (personhood, economic)
and concepts (possession, title, exclusion, tenancies)

Sukhninder Panesar’s paper

Theories of private property in Modern Property Law

● This paper covers justificatory theories of private property:

○ Occupation theory
○ Labour theory & Property as a Natural Right
○ Utilitarian theory of property & Property as a Positive Right
○ Economic justifications for private property

Guido Calabresi & Douglas Melamed’s paper

Property, Liability and Inalienability Rules

● A property rule (governed by Property law): legal rule that protects a property
right through the absolute right to exclude.
● A liability rule (governed by Tort law): allows for the violation of a property right
by another, if the latter is willing to pay an objectively determined value for it.
● Inalienable (governed by Contract law): protect entitlements/rights to the extent
that its transfer is not permitted between a willing buyer and willing seller.
 JB Ojwang’s book

Laying a basis for rights: Towards a jurisprudence of development

James Krier’s paper

Evolutionary theory and the origin of property rights

Week 2: The Origin and Justification of Property Rights

● Why grant property rights?

○ Theories of Property
○ Tragedy of the Commons
○ Tragedy of the anti-Commons
○ Tragic African Commons
● Chapter 2 of Dr Kariuki’s textbook
● Pierson v Post (1805)
● Shree Visa Oshwal Community Nairobi Registered Trustees v Attorney General
& 3 others (2014)

Theories of Property

● First possession and first occupancy theory

○ Possession: a clear act whereby all the world understands that a person
has an unequivocal intention of appropriating a thing to his individual use.
○ Ownership: At common law, there is a higher category of appropriation of
rights which flow from a political superior/sovereign, known as ownership.
Ownership is regarded as a secure form of possession.
○ Criticisms: based on historical ad primitive facts, the conditions operating
at the time of the writers are not the same conditions we are in today
(resources are not held commonly today), does not adequately justify the
existence of private property even though it explains how certain property
rights evolved or their origins
● Property as a natural right
○ John Locke posited that it was God (and not the sovereign) that gave
property. Hence, private property existed even before the sovereign and
state.
○ In addition, these private property rights were acquired by natural, moral
and rational conduct which individuals would perform once they were left
to their own devices.
■ It was not natural because every individual is born with the right to
property.
○ Criticisms: only explains the theory of original acquisition (not the
principle of private property), theological dimension to the theory & the
influence of the Church in the legal policy-making process, justification
should be based on greater social and economic objective rather than by
reference to historical entitlement.
● Property as labour
 ○ Labour on resources give individuals private control of those resources
○ Limitations: spoilation proviso and the sufficiency limitation
■ Spoilation proviso: although labour will give private property, if the
labourer does not use the resources, then despite his labour, those
resources do not belong to him but become common again.
■ Sufficiency limitation: an individual who does labour, must leave
behind enough resources of the same quality for others to
appropriate. This limitation seeks to make appropriation illegitimate
when there is insufficient left for the needs of others.
○ Criticisms: spoilation proviso (excessive concentration of private property
into certain hands at the expense of others), sufficiency limitation
(conditions of scarcity).
● Property as a legal (positive) right
○ The utilitarian theory of property regards property as a positive right
created instrumentally by law to achieve wider social and economic
objectives.
○ This positive right is said to be the opposite of a natural right
○ Jeremy Bentham’s theory - property & law are born together and die
together
○ Property is conceptualised as a bundle of sticks and expectations in a
thing that is enforceable against third parties including the bundle. The law
is brought in to ensure the maximum protection of ‘sticks’ or entitlements
that an individual may have.
○ Limitation:
● Property as a social utility/utilitarianism
○ The principle of utility requires members of society to weigh up the
consequences, in terms of happiness and unhappiness of various
alternative actions, and choose that action which would, on balance, have
the best consequences, in the sense of producing the largest net balance
of happiness.
○ Bentham argues that the greatest or total happiness in society in respect
of resources will only come about if such resources are in the hands of
private individuals.
○ Limitation: does not address the question of how people come to own
resources and how the initial distribution of wealth and resources first
arises.
● Property as ‘personhood’
○ Hegel’s “personhood theory” relies on the premise that property provides
the mechanism by which humans achieve self-actualisation.
 ○ Hegel posited that people’s core is found in their will. The will, however,
needs material objects to express itself, and private property is therefore
indispensable to the external manifestation of the will.
○ Likewise, society’s recognition of private property further contributes to
self-realisation by respecting human agency.
○ Thus, Hegel wrote that there can be no individual freedom without private
property providing freedom’s external sphere.
○ Limitation: undermines the social system (property required for
development of personality may not be accessible to the whole society),
explains the existence of private property only in things that are central to
personhood (does not justify fungible property), offers little guidance on
the allocation/definition of property rights (personhood interests vs fungible
interests).
● Property from an economic point of view
○ Property underlies each and every aspect of economics as economics
deals with all things of worth.
○ Posner argues that the legal protection of property rights performs a very
important economic function as it creates incentives to use resources
much more efficiently.
○ To summarise, the economic justification for private property is the
minimising of cost and the resulting efficiency in the distribution of
resources (a scientific alternative to utilitarianism).
○ Limitation: not all human desires or satisfactions can be quantified in
monetary terms, unequal distribution of wealth in society makes it difficult
to use the yardstick of ‘willingness to pay’, fails to produce better results
than other theories (assumes that most people are rational wealth
maximisers)

Tragedy of the Commons

● The tragedy of the commons is a situation where many individuals share the
same limited (scarce) resource (coined by William Floyd, an economist, in the
1800s)
○ These situations pit short-term self-interests against the common good,
and they end badly for everyone (resulting into overgrazing, overfishing,
overpopulation, pollution) (revived by Garrett Hardin in the 1900s).
○ The tragedy of the commons provides an opportunity for an individual to
benefit him or herself while spreading out negative effects across the
larger population.
○ Hardin states that when the tragedy of the common applies, it is important
to remember what is good for all of us, is good for each of us.
 Tragedy of the Anti-Commons

● The tragedy of the anti-commons is a situation whereby a single (scarce)

resource has numerous rightsholders who prevent each other from using it,
frustrating what would be a socially desirable outcome.
● A model was formalised by James M Buchanan and Yong Yoon.
● Michael Heller and Rebecca Eisenberg are academic law professors who believe
that biological patents creating “a tragedy of the anticommons” - in which people
underuse scarce resources because too many owners can block each other.
○ Excessively fragmented ownership
○ The mirror image of common’s tragedy -- the resources prone to overuse
in the tragedy of the commons, when too many owners each have the
privilege to use the resource and no one has the right to exclude any
other.
○ By contrast, when resources are prone to underuse in a tragedy of the
anti-commons, when too many owners each have the right to exclude
others and no one has the ineffective privilege to use the resource.
○ Once an anti-commons emerges, collecting rights back into usable
(bundle of) private property is brutal and slow.
● In a 1998 Harvard Law Review article by Michael Heller, he noted that after the
fall of Communism in many Eastern European cities, there were a lot of open-air
kiosks but also a lot of empty stores.
○ Upon investigation, he concluded that because many different agencies
and private parties had rights over the use of storage space, it was difficult
or even impossible for a startup retailer to negotiate successfully for the
use of that space.
○ Even though all the persons with ownership rights were losing money with
the empty stores, and stores were in great demand (the Soviet Union had
collapsed, Russia was turning to privatisation) their competing interests
got in the way of the effective use of space.

Tragedy of the African Commons

● There has been a tragedy in respect of the African commons that has been
unfolding now for over half a century.
○ The tragedy had nothing to do with the intrinsic characteristics of the
commons.
○ It was triggered by the expropriation and ruthless exploitation by colonial
authorities, fueled by the contemptuous denial of their juridical content and
 compounded by the systematic administrative, judicial and legislative
subversion designed to foreclose any possibility of their renaissance.
● However, the African commons as a proprietary system survived nonetheless.
○ The commons survived mainly because Western values did not
materialise.
● The term ‘commons’ is used to identify ontologically organised land and
associated resources available exclusively to specific communities, lineages or
families operating as corporate entities.
● The commons is the creative force in social production and reproductions for
societies that recognise and depend on them. This is how agrarian resource
were, and largely continue to be, organised in Africa.
● Internal mechanisms for the management of and determination of access to
resources comprised in any distinct body of commons was and remains a
complex issue due to structural and normative parameters.
○ At the structural level, the commons are managed and protected by a
social hierarchy organised in the form of an inverted pyramid with the tip
representing the family, the middle the clan and lineage, and the base the
community.
○ At the normative level, access to the resources of the commons is open to
individuals and groups who qualify on the basis of socially-defined
membership criteria reinforced, internally, by obligations which are
assumed on the basis of reciprocity by and to each member of the social
hierarchy.
■ The quantum of access rights depends on the category of
membership each individual or collective holds and the specific
function for which access to the resources is required.
● The defining characteristics of the commons are that land are:
○ held as a transgenerational asset
○ managed at different levels of social organisation
○ used in function-specific ways, including cultivation, grazing, hunting,
transit, recreation, fishing and biodiversity conservation.
● Historians have established that at the end of the 19th-century, land resources in
Africa were held, managed and used primarily as commons.
● The African commons were the primary, economic and social asset individuals
and communities drew on, and the fountain from which their spiritual life and
political ideology sprung.
○ It is primarily for this reason that the commons were not susceptible to
inter vivos* transfers outside each level of social organisation even though
latitudinal exchange of function-specific rights was and remains common.
 ○ It is also for this reason that the transmission of access rights to land and
associated resources in mortis causa, always were exclusively by way of
intestacy, and only to a predetermined class of heirs in accordance with
common rules internalised at each level of social organisation

Chapter 2 of Dr Kariuki’s book

● First occupancy or first possession theory

○ The first-in-time to take possession is regarded as the owner of the
property.
○ Given that all resources are given to humankind in common, such
resources become one’s private property through the consent
of/agreement with the rest of humankind.
○ Absent these agreements, the occupancy theory provides that an implied
agreement can be found on the simple basis of first occupation.
○ Possession forms the root of title, and one should not be concerned with
the manner through which persons became occupants of the property.
Occcupation inviolably dispels any contestations tha tmay be advanced
towards the title.
● Natural rights theory to property
○ Natural law posits that property is a gift of nature originally granted free to
all humankind.
○ By nature, human beings are free and equal and by nature, human beings
have a right to property.
○ Saint Paul II stated that ‘God gave the earth to the whole human race for
the sustenance of all its members, without excluding or favouring anyone’.
○ Human beings are to use property well as they are mere stewards.
● The labour theory
○ Property is a natural right and people enter into society to preserve
property.
○ Property rights are natural rights of individuals governed by the principles
of natural justice.
○ One can acquire the right to property in his own person and in that which
he wrought with his hands (John Locke).
■ In other words, property rights are granted to humanity generally.
However, once man mixes their labour with common property, man
can extract private property.
● The legal theory
 ○ Law takes precedence in defining what property is.
○ Property is that which the law considers and recognises as property.
○ Jeremy Bentham - property is a child of the law and the law plays a key
role in the defence of property rights vested on persons.
● The social utility theory
○ Private property rights are granted since doing so benefits the social
welfare.
○ Society recognises that the vesting of property rights on individuals not
only benefits the individual but has wider benefits to the entire society.
○ Private holders of property are therefore perceived to have responsibilities
towards other persons in the society.
● Personhood theory of property
○ Property is regarded as one of the external things that are good and
necessary for the full expression of personality and individual
development.
○ It is an instrument of personality.
● Utilitarianism-traditional theory
○ Utilitarianists view property as a positive right created by law to achieve
wider social and economic goals - legislators while drafting property law
frameworks determine what is essential to the happiness of society (thus
utilitarianism’s relation to law - Jeremy Bentham)
○ Property (+private property) exists to maximise the overall happiness or
utlity of all citizens.
○ Property rights are allocated and defined in a way that best promotes the
general social welfare.
● Economic theory of property
○ Incorporates economic principles into utilitarianism.
○ An economic view assumes that happiness may be measured in monetary
terms (not vague terms like utilitarianism would define it)
○ Private property therefore exists to maimise the overall wealth of society
(see Richard Posner - property refers to rights to the exclusive use of
valuable resources and the maximising the efficient allocation of these
resource to individuals)
● Libertarian theory of property
○ Ownership of private property is necessary for self-government.
○ Premised on the belief that individual freedom is of necessity for
individuals to be able to exercise their will freely.
○ Property rights provide citizens with economic security that allows them to
make independent political judgment.
 ○ Thomas Jefferson is said to have advocated the distribution of federally
owned public lands to landless citizens so as to have a nation of yeoman
farmers, virtuous and independent enough to pursue the public good.
○ Libertarians have always sought to ensure the protection of the rights of
persons to own property as these rights were there even before the
coming of the state.
○ These theories advocate a system where property civil liberties are
recognised and respected with a limited government under the rule of law
and belief in laissez-faire economic policy.
○ Criticisms: scholars critique this theory by questioning the original
assumption that property ownership is essential for political freedom (even
the poorest citizens with less/no property have the political courage to
agitate for the common good).
● Socialist and communist theories on property
○ Inequality in the distribution of property mostly in the 18th century resulted
in the dissatisfaction of many who viewed existing social relations
(including existing property regimes) as systemically unfair.
○ It is at this time that socialism and communism as philosophical theories
arose to facilitate equal distribution of resources among individuals.
○ All things are equally the objects of enjoyment without payment made or
service rendered.
○ Communists are against private property since it leads to social classes.
Wealth accumulation, status and power. They advocate for the abolition of
private property rights, want a classless and stateless society and the
collective ownership of all property (with user rights as opposed to
ownership) where each person contributes and receives according to their
ability and needs.
○ Criticism: the problem with the socialist theory has always been to
consider how collective regulation is to be accommodated to the free
initiative and enterprise of the individual, and whether this problem is
capable of solution.

Pierson v Post
● Post was hunting a fox one day on an abandoned beach and almost had the
beast in his gun sight when an interloper (Pierson) killed the fox and ran off with
the carcass.
● Post argued that his pursuit of the fox had established his property right to the fox
and Pierson had interfered with this. He then sued Pierson for the value of the
fox.
 ● The principles are as follows: first, one must give notice to the whole world
through a clear act, and secondly, there must be the reward of useful labour.
○ The facts of Pierson v. Post can be explained by stating that, although
Post had employed some labour in hunting the fox, his labour had never
reached the important stage of communicating notice to the whole world.
Pierson's labour had the effect of making that important notice to the
whole world.
○ Note: The degree of effort/labour needed to make the communication to
the whole world depends on the nature of the resource in question - in
Pierson v Post, the degree of effort needed to take control (and hence,
communicate to the whole world) was to physically capture the wild fox.

Shree Visa Oshwal Community Nairobi Registered Trustees v Attorney General &
3 others
● The need to take consideration of the rules of fair administrative action was
earlier established in Shree Visa Oshwal Community Nairobi Registered
Trustees v Attorney General & 3 Others.
● The case of Shree Visa Oshwal Community Nairobi Registered Trustees v
Attorney General & 3 Others, illustrates how a contractual relationship is created
once the government issues a person with a grant. In this case, the petitioner
had been conferred with land registered in Grant No. 18152 as L.R No. 209/5996
as a leasehold for a period of 99 years commencing 1st January 1954.
● One of the special conditions for this grant was that the petitioner would erect
buildings for the purpose of a school and one residential house in the suit
property within 24 months. The petitioner duly constructed the school. The 2nd
respondent subsequently wrote a letter to the petitioner revoking the grant on the
basis that the petitioner had converted the school constructed on the land to a
private school and the petitioner was given six months to vacate the land.
● The Court, in arriving at its decision, stated that the determination of whether the
applicant was using the land for the purpose specified in the grant was essential
establishing the lawfulness of the 2nd respondent’s actions. The Court reiterated
that Special condition No.4 contained in the grant required that the school must
be used for the purposes for which it was established, that is, the establishment
of a public school. Any contrary use would mean the land reverting back to the
state.
● To this end, the Court held that the petitioner was in breach of the special
condition and that the 2nd respondent was entitled to take the measures that it
undertook. The Court further held that the petitioner was only entitled to
compensation as with regards to the developments put on the land and not for
 the loss of the land. This case importantly sheds light on the implications of non-
fulfillment with grant conditions.
● Such nonfulfillment is considered to be a breach of contractual obligations that a
grantee undertook to perform. The case also illustrates that a grantee in breach
of grant conditions cannot benefit from their non-fulfillment of the conditions and
expect compensation where the state takes back the land. Needless to say,
he/she who comes to equity must come with clean hands.

Week 3: An African view of property

● Property as a commons
● Property as being more than res
● Property as a transgenerational asset
● Property and spiritual in African society
● Human rights, communitarianism and the African concept of property
● Dispute resolution in traditional African societies
● Debunking fallacies of western property conceptions - for this, see also
BREATHING LIFE INTO DEAD THEORIES ABOUT PROPERTY RIGHTS: DE
SOTO AND LAND RELATIONS IN RURAL AFRICA by Celestine Nyamu-
Musembi
● Chapter 3 of Dr Kariuki’s book
● Centre for Minority Rights Development (Kenya) and Minority Rights Group
(CEMIRIDE) on behalf of Endorois Welfare Council v Kenya, AcmHPR
Comm.276/03.

Property as a commons
● Before colonialism, ‘property’ was held communally in Africa.
● Property could be acquired through economic activities, inheritance, through
marriages and intermarriages, raids, conquests and gifts.
● Based on communal ownership of resources, individuals would be accorded
exclusive use rights over given resources.
● Communal ownership amongst African communities has been described as a
form of ‘commons’. ‘Commons’ are ontologically organised resources, available
 exclusively to specific communities, lineages or families operating as corporate
entities. A commons is conceptually explained using an inverted pyramid
(community at the top - clan & lineage - family).
● According to Ayisi, this hierarchy represents the extended family which is the
raison d’etre of all social cooperation and responsibility. This social hierarchy
determines the manner in which resources are shared and distributed within the
community, thus ensuring sustainable utilisation.
● Access to a resource is dependent on membership of a community.
● Decisions over access to resources are made by traditional leadership based on
certain normative parameters. Such parameters ensure members’ access
resources, without unnecessarily compromising the ability of subsequent
generations to access the same.
● Moreover, members are required to perform certain reciprocal obligations for the
good of the community, to determine the quantum of access rights they may
have. This is out of recognition of the fact that one’s social group is more
important than individual rights and privileges, among other reasons.
● Customary rules play a key role in maintaining a balance between social
relations and property relations. These rules are moribund but are a
representation of the cultural and intellectual accumulation that has occurred
within societies over the years.
● African property relations are underpinned by principles of sustainability and
equity in access. Sustainability ensures that resources are used in a manner that
meets the needs of the present, without compromising the ontological demands
of the past, and the heritage of future generations. Sustainability is succinctly
captured in the transgenerational nature of property holding.
● In summary, the salient features of the common property holdings are:
○ The distinction between rights of access to resources and control of rights
○ The power of control (which is vested in a recognised political authority or
entity within a specific community)
○ The allocation of rights depending on one’s social status by a political
entity within a community.
○ The guarantee of access rights to individuals based on the performance of
certain reciprocal obligations
○ The lack of exclusivity in property holding as known under English
property jurisprudence.

Property as being more than the res

● Property, especially land, in the African setting remains shrouded in mystery and
ritual.
● Property is more than the physical solum.
○ It extends to other cultural, spiritual and social realities that may not be
physical.
○ Community members may, thus, have access rights to land, to derive
benefits from the physical solum without necessarily owning it.
● A clear distinction, therefore, exists between the physical solum and fixtures
attached to the soil, which under English property relations are part of land.
● African property relations traverse the state of affrairs as perceived by the living,
the past and future generations. Property is, thus, a transgenerational asset, held
for the benefit of the dead, the living and the yet-to-be-born.
● The transgenerational dimension of landholding in Africa is best explained by
ancestral lands which represent a spiritual connection between the past, present
and future.
● To realise good life, communion with ancestral lands in which the living dead
reside in the concrete phenomena found there, must be maintained.
● Property holding ensures equitability in that access rights are guaranteed to all
members of the community, including women. This is in contradistinction to the
western systems which allow for the dispossession of women when an individual
(who in most cases is the male member of the family), is registered as the
proprietor of the land.

Property and spirituality in African societies

● Property and spirituality are intertwined in Africa. The African commons are
primarily the fountain from which the spiritual life and political ideology of
communities sprang.
● Land and other resources are also viewed in a sphere of spiritual cosmology and
as critical bases for the sustenance of universal life.
● Amongst most ethnic groups, land is held as a deity where taboos and totemic
connotations underpin access to use and management.
● Hence, the spirituality of property in Africa, regulates access to most natural
resources, and ensures their judicious exploitation.
● Jomo Kenyatta reports that among the Agikuyu people, an agriculturalist
community, land supplies them ‘with the material needs of life, through which
spiritual and mental contentment is achieved’.
● Certain spaces are so sacred, that even trespassing on them is regarded as a
taboo.
● Ancestral lands, including burial grounds in traditional African society, are
significant in the context of time, space history and human fulfilment. Ancestral
 land, meaning the space or location where the ancestors lie, is home, and it
represents the fulfilment of time, of human life and of history.
● Mbiti discusses the spiritual role of property in African societies, including making
sacrifices, offerings and other religious purposes.
● Human relationship with natural resources is reciprocal, such that, if human
beings sanctify the land, ‘the land blesses in equal measure’.
● Meek asserts that African peoples traditionally had no conception of ‘ownership’
of land in the western sense. Land belonged to God, with communities only being
concerned with the use of the land.
● Intellectual property, in the form of traditional knowledge, is usually owned by the
communities collectively as a gift from a superior being, held transgenerationally
and perpetually for the benefit of the community.
● Spirituality continues to play a role to date. Spiritual dimensions ‘still guide the
systems of land exchange in most parts of Africa, even among Christians and
Islamic groups, majority of whom are still considered to indulge in syncretism.
● Property is a critical element in the sealing of marriage ties in most African
societies. The exchange of bridewealth in African societies has a spiritual
dimension as it involves ancestors on both sides regarding what is given.

Human rights, communitarianism and the African concept of property

● Anglo-American jurisprudence adopts an individualistic view of property. The

basis of this standpoint is human dignity.
● Some African scholars explain that even if human rights show a communitarian
dimension, in spheres such as family and marriage where they can be realised
with a community, they are always concerned with the individual’s self-
realisation.
● Consequently, within existing human rights frameworks, an individual’s right to
property is the central point.
● Thus, in some parts of Africa, an individual cannot dispose of property for
another purpose than the usual, without first consulting the relatives.
● Traditionally, there were no social classes due to disparities in material
accumulation as is the case in the western world (capitalism and private property
occasion property inequalities in society).
● It is also important to note that in the African context, the community includes the
deceased members as well. The deceased, especially the ancestors are said to
possess pieces of land, water places, parts of the forest, as their rightful property.
● These discourses are important in understanding human rights and property
relations in Africa. The deceased are said to constantly demand that the living
fulfil certain obligations.
● It is customary amongst most communities in Africa, to bury the umbilical cord of
a newborn baby. This very important symbolic act is regarded as the foundation
of the right to a piece of land.
● Similarly, concerning the grave, the connection with the earth, initiated by the
umbilical cord, is finally sealed by death. Hence, the planting of a tree on the
grave, in most communities, is proof of the presence of and right of ownership of
the deceased.
● It is clearly evident that using the mainstream human rights framework to explain
property rights to land in traditional African society presents a huge problem.
● However, with the renaissance of community and peoples’ rights in Africa, a new
consciousness is arising regarding these rights.
○ Nevertheless, this is happening when expropriating of community land has
taken place or is still taking place.
○ Reforms that do not take account of these dimensions are fallacious and
destined to fail. This explains why previous property regimes that have
been adopted to govern customary forms of ownership have largely failed
as they are merely pallid impostures of the factual realities.
○ The Inter-American Court of Human Rights observed in Saramaka People
v Suriname, that where the property rights of indigenous communities are
being acquired by the state, there should be ‘...consultations in good faith,
through culturally appropriate procedures and with the objective of
reaching an agreement’.
○ The Court also stated in the Kichwa Indigenous People of Sarayaku v
Ecuador, while interpreting article 21 of the American Convention of
Human Rights on the right to property, that even though the communal
ownership of property by indigenous communities does not fit into the
conventional conception of property, they deserve legal protection as,
■ Article 21 of the American Convention protects the close
relationship between indigenous peoples and their lands, and with
the natural resources on their ancestral territories and the intangible
elements arising from these.

Property and dispute resolution in traditional African societies

● The holding of land among African communities seeks, among other things, to
ensure that social relations are maintained by ensuring harmonious use of
resources.
○ Disputes are, however, bound to occur within these societies as
community members interact with resources that are available for their
use.
 ○ Traditionally, mechanisms were formulated to ensure that such disputes
were justly and expeditiously dealt with. Traditional dispute resolution
mechanisms (TDRMs) are one of the defining characteristics of African
property regimes.
○ When conflicts arise in these communities, parties can resort to
negotiations and, in other instances, to the council of elders or elderly men
and women who act as third parties in the resolution of conflicts.
○ These dispute resolution mechanisms foster harmonious relations among
community members as expressed in terms such as Ubuntu used in South
Africa, and Utu in East Africa.
● Certain principles inform the adoption of these dispute resolution mechanisms.
Truth is one of the key principles which these dispute resolution mechanisms are
premised on.
○ Beliefs in ancestral powers dominated the consciousness of every
member of the collective.
○ Presence of the ancestral forces played a big role in ensuring that persons
were truth and some would collapse or be forced to say the truth upon
swearing oaths.
● Among the Giriama of Kenya, two main institutions are identifiable: the council of
elders and the oracles.
● Among the Kamasian clan of the Kispigis community, disputes concerning family
land were minimal because an old man could normally make a customary oral
will by calling his children and stating how property is to devolve.
● Fear of grave repercussions also made intra-communal conflicts a rarity. As
Kenyatta documents, a man could not dare interfere with a boundary mark
amongst the Agikuyu people, for fear of his neighbour’s curses and out of
respect.
● The recognition of traditional dispute resolution mechanisms in article 159(2)(c)
of the Constitution is therefore merely a restatement of customary jurisprudence.
○ These mechanisms have been in existence since time immemorial and
continue to govern property relations among African societies.
○ The constitutional recognition is seeking to ensure that their place in the
dispute resolution system is restored.
○ Article 162(2)(b) of the Constitution requires Parliament to establish a
court with the status of the High Court for the resolution of disputes on the
environment and the use and occupation, and title to, land.
○ Parliament has, in the discharge of this mandate, enacted the
Environment and Land Court Act.
● The courts are agreeable to this approach. In this case of Lubaru M’imanyara v
Daniel Murungi, the Court adopted the consent of the parties to refer the land
matter to the Njrui Ncheke Council as an order of the Court.
● Despite the fact that the introduction of the formal justice systems had led to the
relegation of these mechanisms in dispute resolution policy, law and practice, the
steps being taken, constitutionally and statutorily, are a recognition that these
mechanisms, ‘remain the most appropriate forum for resolving community land
disputes’.
● The Community Land Act has attempted to take into account some of the
defining characteristics of the African property holding systems, especially the
fact that community land vests in the community.
● A certificate of title issued to a community is evidence of proprietorship in favour
of that community. For purposes of holding land, each registered community
must have a community assembly consisting of all adult members of the
community.
● The Act has taken cognisance of the fact individuals or a group of members of a
community can also be granted rights over community land. In such cases, the
individual or group applies to the community assembly which can either accept or
deny the request.

Debunking the fallacies of western property conceptions

● With the wide prevalence of western property models in Africa, numerous

fallacies have arisen regarding African property relations. This has led to the
adoption of alien property notions that are ashen imitations of European models
and pallid impostures of factual realities.
● Some western property writers have keenly maintained that the commons are not
and cannot be regarded as property systems, that they are merely terra nullius or
open access resources.
● According to Garret Hardin, common property regimes lead to a tragedy (the
‘tragedy of the commons’). They argue, therefore, that this tragedy arises
because of ineffectiveness and inefficiency in internalising externalities
associated with common holdings.
○ No user in the commons has the incentive to internalise these
externalities.
○ Further, they argue that common property regimes suffer from internal
contradictions, caused by a lack of normative order, which contributes to
resource overuse.
○ In their opinion, the tragedy, therefore, can only be averted by granting
private property rights.
● Liberalists also proclaim that communal ownership makes property non-fungible
as it cannot be transacted in the market resulting in inefficiency. Although this is
possibly true for the reason that the property embodies the communities’
personhood, proponents of communal property are optimistic that alienability is
possible.
○ One such proponent, Nyamu Musembi, identifies five shortcomings in the
argument that common property cannot be transacted in the market.
These are that:
■ Such views are based on a narrow conception of legality to mean
only formal legality and suggest that titling is essential for a
property regime to function well to replace formal rules
■ These views presume that customary ownership must eventually
evolve to private title
■ It is erroneous to claim that it is only formal property regimes that
can guarantee access to credit facilities
■ Liberalists narrowly construe land markets to only mean ‘formal
markets’
■ The arguments ignore the fact that title spells both security and
insecurity
● In relation to the African commons, for example, the ability to transact in the
market does not necessarily lead to efficiency in property holding.
○ In certain cases, such transactions lead to the deterioration of the value of
common properties hence making them unsustainable.
○ Subjecting the communal holdings to the cash economy also destroys the
social relation that are the basis of these holdings.
○ African property holding systems are able to maintain sustainability
without necessarily conforming to the demands of the cash economy.
● It is for this reason that African property scholars have rightly argued that the
western conception of property does not fit well in the analyses of African
property system and relations.
○ It is proposed that in analysing African property systems and relations,
there is need to use a vocabulary that is contextual, descriptive and that
fully takes into account the social and cultural complexities of African
societies.
● Thus, property law in the African context is the body of rules which define
regulate and enforce the principles of access to the situation, thing or object. The
rules represent a set of injunctions, passed down from generation to generation,
and that dominate the consciousness of every member of society collectively
from birth to death.
 ● It is instructive to note that the colonial policy towards property in Kenya was
fallacious in explaining why the government undertook tenure reforms in native
reserves.
● As a result of a flawed conceptualisation of common property, most African
countries continue to lose critical aspects of their common resources. Such
misconceptions have also underpinned numerous land reform processes
undertaken under the pretext of protecting the African commons.
● Another factor contributing to the loss of the commons and an African philosophy
of property is the law place that customary law occupies in our legal order. As
already observed, customary law is the normative framework that regulates the
African commons. Therefore, subjecting customary law to the repugnancy clause
(as has been the case in most African countries), undermines and subjugates
common property systems.
● Although the Constitution of Kenya recognises African customary law, the
Community Land Act defines customary land rights as ‘rights conferred by or
derived from African customary law, customs or practices provided that such
rights are not inconsistent with the Constitution or any written law’.
○ Clearly, this establishes a hierarchy of sorts where written law seems to
supersede customary law yet the Constitution places customary law at par
with written laws.
○ Moreover, the ever-growing African population has led to the distortion
and disruption of the lifestyles of many African communities, especially
those practicing pastoralism, hunting and gathering, fishing and farming.
Tribal boundaries erected during the colonial era, and those established to
delineate boundaries of private property have contributed to the
subjugation of African property arrangements.
■ Further, increased urbanisation, globalisation and economic
projects being undertaken by the government, have all contributed
to displacement of communities which leads to the loss of their
common property.

Centre for Minority Rights Development (Kenya) and Minority Rights Group
(CEMIRIDE) on behalf of Endorois Welfare Council v Kenya, AcmHPR
Comm.276/03.
In the 1970s, the Kenyan government evicted hundreds of Endorois families from their
land around the Lake Bogoria area in the Rift Valley to create a game reserve for
tourism. The Endorois, an indigenous people, had been promised compensation and
benefits, but these were never fully implemented, and the community's access to the
land was restricted to the discretion of the Game Reserve Authority. This prevented the
community from practicing their pastoralist way of life, using ceremonial and religious
sites, and accessing traditional medicines. Complainants (Centre for Minority Rights
Development, Kenya and Minority Rights Group International on behalf of the Endorois
Welfare Council) submitted this claim before the African Commission on Human Rights
after domestic legal efforts and action failed to constitute an effective remedy for the
violations alleged.
The Commission found that the Kenyan government had violated the Endorois' rights to
religious practice, to property, to culture, to the free disposition of natural resources, and
to development, under the African Charter (Articles 8, 14, 17, 21 and 22, respectively).
The Commission stated that lack of consultation with the community; the subsequent
restrictions on access to the land; and the inadequate involvement in the process of
developing the region for use as a tourist game reserve, had violated the community's
right to development under the U.N. Declaration on the Right to Development. Also, the
Commission found that the Kenyan Government's Trust Land System violated the
Endorois' right to property. The system allowed gradual encroachment onto Endorois
land, and even though the system allowed for compensation, it nevertheless violated
property rights by effectively causing forced evictions. For these violations, the
Commission recommended that the government recognize rights of ownership, restitute
to the Endorois' their ancestral lands, compensate their losses, and ensure the Endorois
benefit from the royalties and employment opportunities within the game reserve.
Enforcement of the Decision and Outcomes:
The Commission's decision was formally approved by the African Union at its January
2010 meeting. The Commission's decision calls upon the state to report on the
implementation of its recommendations within three months from the date of notification
and further recommends collaboration with the Endorois in implementing these
remedies. Concurrently with this decision, Kenya is undergoing a process of
Constitutional review and there is hope on the part of civil society involved in this case
that its result will positively impact the negotiation process in favor of greater recognition
of economic, social and cultural rights.
Significance of the Case:
This case marks the first time the Commission has recognized indigenous peoples'
rights over traditionally owned land and their right to development under the African
Charter. The decision is also noteworthy because the Commission emphasizes the
African Charter's protection for collective claims to land rights by indigenous
communities. It is also a relevant decision for economic, social and cultural rights
advocates because the Commission stated that while the Kenyan Constitution
guaranteed civil and political rights, it did not give an equivalent degree of constitutional
protection to economic, social, cultural, or group rights and concluded that this denied
the Endorois an opportunity to launch an effective claim on their ancestral land in the
Kenyan High Court.

Week 4: Role of Property

● Economic function of property
● Property and human flourishing
● Property and personality
● Property and power, politics
● Social function of property
● Property as a status symbol
● Property and spirituality, culture
● Chapter 4 of Dr Kariuki’s book
● Buckley v Valeo 424 US 1, 57 (1976)

Economic function of property

● Property rights framework is the basis of trade and markets. This is because
well-defined property rights are essential in the allocation of goods and services
in a free market to ensure efficiency.
● Due to the link between property and economics, scholars have said that
prosperity and property rights are inextricably linked concepts.
○ Property provides an appropriate mechanism for rewarding one’s effort in
society. This is because when property rights are supported by other
institutions (such as contract), they incentivise people to create, innovate
and conserve resources. Thus, those who create, produce or innovate
more are rewarded for their efforts by the property institution.
● Property law is vital in resource allocation which has implications for resource
use and efficiency. The institution of property ensures that there is efficiency in
the use and management of resources.
● By facilitating efficiency in the use and transfer of goods and other resources, the
institution of property also creates and confers value.
○ The transferor of proprietary interests gets some benefit from the transfer
while the transferee may derive a benefit from the use of the transferred
property.
● A property system should have three attributes in order to facilitate market
exchange and efficient allocation of resources in a free-market economy:
○ Universal - in the sense that every resource should be owned.
○ Exclusivity - the owner of property may exclude all others from using it.
 ○ Transferability - this makes it less costly for possessors of property rights
to exchange their rights.
■ Without these three attributes, the exchange of economic goods
cannot take place due to uncertainty.
■ Richard Posner observes that without property rights, there are no
incentives for incurring transaction costs as there is no assured
reward for incurring those costs.
■ Property rights offer assurance to those transacting in property.
These incentives engender the efficient use of assets and facilitates
their maintenance and investment.
● Property systems (especially common resources) in the traditional African
context may not have the three attributes outlined above due to communal
holding of property. Nonetheless, personal property in the African context is not
communal and can be traded in the market and the attributes of property may
create incentives as in the modern property markets.
● Property institutions enable those with secure property rights in goods and
services to trade them voluntarily with others. Securing property rights of the
people is cited as being essential for progress towards Vision 2030.
● According to the value theory propounded by Abraham Bell, property creates
value. Market transactions facilitated by property institutions confer benefits
(value) to both the buyers and sellers of goods and services.

Property and human flourishing

● Human flourishing implies that a person has the opportunity to live a life as
fulfilling as possible. It is characterised by individual autonomy, personal
security/privacy, personhood, self-determination, community and equality.
● There are three critical pillars to human flourishing according to Allison:
○ Knowledge
○ Capital
○ Incentives
● Property as an incentivising institution makes people innovate, invest and create
jobs, thus promoting human flourishing. Securing property rights, thus, promotes
human flourishing by providing individuals with increased autonomy and control
over resources.
● Property is also seen as an extension of the self, making it very difficult to draw a
line between oneself and one’s property. This ‘self-extension’ role of property
manifests itself throughout an individual’s life and helps promote human
autonomy. For example, empirical evidence shows that in a child’s life,
possessions are integrated with the child’s developing concept of self as they
 offer a very high degree of contingent control, almost as great as the control one
experiences over their body.
○ Property helps people remember aspects of their self when they are old
and facilitates memory retention through pictures.
○ However, scholars such as Amartya Sen posit that human flourishing has
nothing to do with one’s possessions but what one is able to do. Property
that one acquires is only important if it empowers an individual with the
capabilities to choose a life of human dignity.

Property and personality

● Personality could mean personhood, the status of being a person and can extend
to both moral and political personhood. Property is conducive to personality.
● Some of the economic and social rights are not just about property, but human
rights beyond ownership or any other right explaining why we have the
International Covenant on Civil and Political Rights (ICCPR) and the International
Covenant on Economic Social and Cultural Rights (ICESCR).
○ We are all entitled to the right to healthcare for example and a
clean/healthy environment whether we have the money (private property)
for it or not.
● Personality is also aware of individuating characteristics and owning property is
seen as having more of these characteristics.
● Property also plays a central role in the realisation of human freedom. The
realisation of free will is tied to the manifestation of one’s will regarding objects,
therefore, necessitating the right to property.
○ By exercising the right of property, one gives free will a stable environment
to be with others having such wills.
○ According to Hegel, individuals need private property to sustain and
develop abilities and self-conceptions that are definitive of their statuses
as persons.
○ Marget Jane Radin arguest that one needs to assert control over property
to realise an individuated sense of self. She contends that the personhood
of the individual is manifested in property such that the loss of some
property more expressive of oneself is more hurtful than the loss of other
property less expressive of the self.
■ She typologises property based on this aspect into ‘personal’ and
‘fungible’ property. She thus advocates the legal protection of
personhood that is expressed in property.
● Both the economic and personhood views of property are mainly inward-looking.
The economic approach takes demand as being endogenous, while the study on
personhood and property asserts the individual will on the outside world.
 ○ However, the communitarian approach examines property as a creator of
social relations and centres on the interconnection of the relationships and
obligations that arise.

Property and power

● Those with more property have more power which can be used to occasion harm
to those with less or no property.
● For example, property relations established by colonial throughout Africa which
have continually led to the alienation of African people’s territories and the
expropriation and destruction of their traditional governance systems.
● Power relations (as a legacy of the colonial property relations) are still manifest
with the existence of a duality in property governance in most of Africa. This
duality manifested itself in the early days of colonialism in Kenya.
● It is apparent that problems in production relations exist because those with more
property have the power to control the labour force. This leads to the exploitation
of the labourers and can even occasion land alienation.
● Yanis Varoufakis captures in The Global Minotaur the connection between land
(property) ownership and the power/control that property owners can have over
labourers (poor people) and their resources. Essentially, the economic, social
and political fate of the labourers was determined when their resources were
alienated from them.
● The linkage between property and power is necessary because great differences
in property holdings can produce great imbalances of powers, which in turn can
thrust those who have little into dire straits.
● The role of property also includes shaping politics.

Property and politics

● Property is one of the determinants of social ordering. For example, land is not
only property but is territory over which a state asserts and exercises its
jurisdiction. Therefore, political sovereignty is dependent upon ownership of land.
● Some scholars also believe that property promotes the kinds of virtues and
virtuous people that communities and states need to function well. For example,
they contend that those who own land in a given society have a stake in its
welfare and are more likely to promote and defend it.
● One of the core purposes of property is the provisions of a prior normative vision
of how society and the polity that governs are to be structured. Property takes a
central place in forging the social contract. The governed cede some rights to the
government for protection of other rights (e.g. the right to property).
● One of the most importantly sought aspirations of humanity is freedom in every
sphere of life and governance is structured in line with this goal.
 ○ The right to property is one of the quintessential rights in achieving
freedom.
○ It is an essential component of individual competence in social and
political life and is necessary for self-determination and self-expression.
○ Courts have commented on the falsity of the dichotomy between personal
liberties and property rights.
○ A fundamental interdependence exists between the personal right to
liberty and the personal right to property. Neither can have meaning
without the other.
● Throughout history, different property institutions have been responsible for
inspiring passion and revolutions (e.g. the Russian Revolution, 1917, the French
Revolution, 1789, the emancipation of the black people, 1863).
● In modern political life, property plays the role of enabling humanity to dispense
with social ordering functions efficiently. The US Supreme Court asserted this
position when it found that property rights facilitate the ‘interchange of ideas for
bringing about political and social changes desired by the people’.
● The land reform discourse in Kenya has also been heavily influenced by politics
because of the high stakes involved and the emotive nature of the land issue.

Social function of property

● Property performs or has a social function. It is for this reason that the
justifications for granting property rights must extend beyond an individual owner
to the wider society.
● Property justifications must explain why one should be granted property rights
and why others should recognise one’s property entitlements.
● Using land, Bell explains how its value emanates from its natural features,
improvements by the owner and activities of the surrounding community.
● As such, and in line with the labour theory, a landowner’s entitlement should only
be the improvement made to the land as its value is equally contributed by the
community and its natural features.
● These cases are common in cities, where you can find houses that are located in
suburb areas fetching considerably higher places than similar houses in rural
areas.
● For social-relations theorists, property is a creator of social relations. They prefer
to privilege one party over another on questions of property to foster mutual
obligations.
○ This is because property ownership creates social responsibilities and
obligations as well as interpersonal responsibilities and obligations.
 ● Social-relation theorists attribute great importance to the social nature of the
human being. They posit that property exists to foster flourishing associated with
man’s social character.
○ The Aristotelian and Thomistic schools of thought, on the individuals being
intrinsically social, are employed in this regard. Property becomes a
means of joining individuals to each other in community and reflects a
deep human need for stable companionship and sociability.
● The communitarian approach to property relations in Africa better illustrates the
social function of property. It is reported that sharing in Africa is an act of prayer
that bonds the community together in acknowledging the giftedness of God.
○ It is regarded as immoral or sinful to not share food, clothing and housing
with those who are needy.
○ Additionally, those in leadership are under a high duty to share wealth with
the subjects.

Property as a status symbol

● Property creates a certain status providing that an asset ‘belongs’ to the owner.
○ When the thing belongs to the owner, the owner enjoys a given group of
rights, powers and privileges not enjoyed by others.
○ Nestor makes the observation that apart from the economic, political and
social roles of property, property does something equally important which
he refers to as the ‘status-signalling function of property’.
● The status signalling function of property is traceable to feudal England, where
the land tenure system embodied a status hierarchy beginning with the king at
the top and running down to the villeins.
○ Owning property meant having a position in the feudal pyramid which
came with duties and rights. Even as feudalism ended and modern legal
systems developed, the situation did not change.
○ The relation between status and property was manifest and played a great
role in the fight for democratisation by labourers. The lower class fought
for their freedom making this the subject of investigation by some of the
enlightenment and later thinkers.
■ David Hume, an enlightenment thinker, found out that property
gave rise to pride and enabled comparison with other individuals.
■ John Locke also noted that some goods and services are demand
partly due to their high prices and the desire for luxury.
■ Jean Jacques Rousseau noted that the main ingredients, in relation
between property and status, are artificial desire and comparison.
He stated that from property arose ‘the burning passion to increase
 one’s relative fortune less out of real need than to make oneself
superior to others’.
■ To Adam Smith, status comparison is responsible for wealth
accumulation and gives rise to modern capitalism. He found that
the status sought appears unreachable because it is always
changing in regard to time, practices and other factors.
■ For Marx, private property is at the core of social power and class
distinction in society. He gives an illustration about a house being
large or small so long as the neighbouring houses are likewise
small or large. However, if next to the little house, a palace arises,
the little house shrinks to a boat. To address this problem, Marx
advocated the abolition of private property.
● Among traditional African communities, property played a status signalling role.
In most African communities, the more wives (who were viewed as part of the
husband’s property) and children a family had, the more wealth, prosperity and
status that man had. Such wealth men could (in most communities) become
elders and tribal leaders in society.

Property and spirituality

● Property is spiritually significant from an African perspective.
○ Certain properties in the African context are designated as shrines,
forests, rivers, wells or holy grounds.
○ Such spaces and properties are highly regarded spiritually and include the
mugumo tree among the Gikuyu people and the kayas among the
Mijikenda.
○ Among certain communities like the Luo, custom necessitated that the
land be acceptable to the gods before one could establish their home on
it.
○ This indicates the intricate connection that existed between the
community, land and the spirits.

Property and culture

● Cultural property has traditionally referred to property having a distinct
connection with a specific culture/identity seen to go over and above other forms
of property.
○ Property forms the basis of inheritance, spiritual life and the preservation
of shared values, knowledge and other aspects. The Elgin Marbles case
offers a classic example.
 ■ The Earl of Elgin sold sculptures to the British Museum between
1801 and 1812 at a high prince. Efforts by the Greek Government
to have sculptures repatriated have borne no fruit. Explaining the
cultural value and worth of the sculptures, a Greek Minister, Melina
Mercouri, firmly stated that they are symbol and blood and the soul
of the Greek people.
● Cultural property encompasses both the tangible and the intangible. This implies
that material possessions as well as the abstract, for example, songs, traditional
knowledge and practices fall within the meaning of cultural property.
● The survival of indigenous communities and the protection of cultural property
are inextricably linked: their survival depends on cultural maintenance since
culture constitutes and is indivisible from daily life.
○ The physical world is linked to the spiritual and cultural life.
○ Dispossessing indigenous communities of physical property, therefore,
results in the destruction of critical aspects of their cultural and spiritual
significance.
● There has been great disregard around the world for cultural property. Other
factors are given primacy over the cultural heritage of a people (e.g. the United
States).
○ The African Commission on Human and Peoples’ Rights made the finding
that the Kenyan government had violated the cultural and religious rights
of the Endorois in taking their land without their consent.
○ The appropriation of cultural property for other uses negatively affects
indigenous communities.
○ The use of the traditional knowledge of indigenous communities without
being afforded protection by the existing intellectual property frameworks
is also a current manifestation of the domination and exploitations of
communities yet this intangible property is crucial to their survival.

Week 5: Forms of Property

● Legal and economic property
● Public and private property
● Personal and fungible property
● Real and personal property
● Cultural property
● Common heritage property
● Chapter 5 of Dr Kariuki’s book
● Communications Commissions of Kenya & 5 others v Royal Media Services
Limited & 5 others (2014) eKLR
 Legal and economic property
● Property rights are imperative in the world of economics.
○ Cole and Grossman underscore the importance of property regimes in
economics when they say that a well-defined property rights regime
underlies the functioning of markets.
○ Consequently, they assert that a property rights framework is the basis of
trade and markets, without which there is bound to be market failure.
○ Therefore, property systems are important in ensuring efficient resource
allocation and use.
○ In addition, property rights facilitate the resolution of disputes over
resources. It is right to assert that the constitution of property rights
precedes economic activity.
● Yoram Barzel distinguishes between ‘economic property’ and ‘legal property’.
○ Economic property is an “individual’s ability, in expected terms, to
consume the good (or the services of the asset) directly or to consume it
indirectly through exchange.”
○ Economic property is broad and encompasses the rights of anyone with
the ability to consume the good in any fashion.
○ Legal property refers to those economic property rights that are
“recognised and enforced, in part, by the government.”
● According to Barzel, property is a residual institution, subordinate to the
institutions of contracts. Legal property is an even less significant factor, as it is
concerned with instances when the state might protect economic property rights.
○ Barzel thus observes that “at the heart of the study of property lies the
study of contracts”.

Public and private property

● A public good is one where an individual’s consumption of the good does not
reduce or exclude the ability of other individuals to consume the good.
● A pure public good is both non-rival and non-excludable.
○ A good is non-rival when the quantity available for other people does not
diminish when one consumes it, for example, natural air.
○ A good is non-excludable, if it is prohibitively costly to provide the good
only to people who pay for it, while preventing or excluding other people
from obtaining it (e.g. national defence. National defence is available to all
on a non-rivalrous or non-competing basis. Its enjoyment by one person
does not prevent its use by another).
 ● On the one hand, all individuals are entitled to use public property but may not
use or occupy it exclusively. Private property, on the other hand, gives an
exclusive right.

Personal and fungible property

● Margaret Radin defines personal property as the class of objects bound up with
the personhood of their owner and fungible properties as those held by the owner
just for instrumental reasons.
● Fungible properties can be commodified since they have little to do with self-
constitution. The basis of the distinction between personal and fungible property
is the pain suffered on losing them.
● An object is fungible property if it is “perfectly replaceable with other goods of
equal market value” and is held for “purely instrumental reasons”.
● Personal objects are those things people have and feel are almost part of them.
These are objects that are bound up with their personhood to enable them to
become personal entities in the world.
○ This is based on the premise that for a person to achieve self-
development, there is need for some control over the external materials of
the world, in the form of property.
○ Radin argues that this view is implied in connections drawn between
property and privacy or between property and liberty. The property varies
with people and their preferences.

Persons and their bodies

● It is important to assess whether there are property rights in the human body.
● Does a person own, or have limited property rights, in his/her body? (varied
responses)
○ St Paul: “You are not your own property; you have been bought and paid
for” (no).
○ Locke: “Every man has a property in his own person”. (yes)
○ Munzer: “Persons do not own their bodies but rather they have limited
property rights in those bodies” (yes, but to an extent).
● Munzer offers a useful analysis of body rights and property rights worth outlining
in this work. He uses a two-pronged approach to analyse whether there are
property rights in body parts.
○ First, he lists the rights that persons have with respect to their bodies.
○ Second, he assesses whether these rights amount to ownership.
 ○ By viewing body rights, using the bundle of rights framework, certain sticks
may qualify as property rights. Persons do not own their bodies but have
limited property rights in their bodies.

Real and personal property

● This classification of property is traceable back to feudal England.
● The courts in feudal England allowed a real action or actio realis only for
specifically recovering land. Where a person was dispossessed of property other
than land, the person who had taken the property could return it or pay damages.
● This practice led to land being referred to as real property or realty while other
forms of property were referred to as personal property.
● Property in common law is divided into two categories: real property and
personal property.
○ Real property is comprised of things capable of physical possession.
○ Personal property is made up of incorporeal interests in thing s personal
and in things real.
● Both real and personal property can take tangible and intangible forms. The
basis of distinction is the movability of the property.
○ The word chattel, deriving from the same old French root as cattle, is often
used as a synonym for personal property.
● Personal property is further divided into two other categories as either choses in
possession or action.
○ Choses in possession refer to the personal things that are tangible and
are capable of physical control by the owner. Examples include a painting
on a wall, a table etc.
○ Choses in action are intangible and incapable of physical control. Rights in
such things are enforceable through suits and not by taking physical
possession. Examples include intellectual property rights (IPRs),
insurance claims etc.

Cultural property
● Cultural property refers to resources with a distinct connection to a particular
culture or identity. It is recognised both nationally and internationally.
● The Constitution of Kenya 2010, mandates the state to protect culture and
other cultural expressions (article 11) and protect and enhance the
intellectual property relating to the indigenous knowledge, biodiversity and
genetic resources of communities (article 69(1)(c)).
● Internationally, the Hague Convention on the Protection of Cultural
Property in the Event of Armed Conflict, a founding document on the
protection of cultural property, defines cultural property as the ‘moveable
 or immovable property of great importance to the cultural heritage of every
people’ and includes buildings or areas that contain cultural property.
● Indigenous knowledge is one form of cultural property that has gained
attention in the property legislative framework.

Common heritage property

● This refers to the international seabed, the Arctic, Antarctica and outer space
which are treated as the property of all humankind.
● The Declaration of Principles Governing the Sea-Bed and the Ocean Floor, and
the Subsoil thereof, Beyond the Limits of National Jurisdiction provides that,
“[t]he sea-bed and ocean floor, and the subsoil thereof, beyond the limits of
national jurisdiction (hereinafter referred to as the Area), as well as the resources
of the Area, are the common heritage of mankind”.
● However, the Seabed Disputes Chamber of the International Tribunal for the Law
of the Sea in its first advisory opinion in Responsibilities and Obligations of
States Sponsoring Persons and Entities with Respect to Activities in the Area,
imposed strict rules on the deep seabed miners to ensure that harm caused is
minimised as the area falls under the common heritage of mankind.

Intellectual Property Rights (IPRs) and Real Property

● These are entitlements conferred by the law to persons over creative works;
inventions, literary and artistic works, symbols, names, images, and designs
used in commerce.
○ They apply to subject matter that satisfies/is capable of satisfying a
specifically defined threshold.
○ They are also not absolute, as third parties can do certain things within the
scope of those rights, as provided by the principle of exhaustion of IPRs.
○ Moreover, IPRs have a limited duration as a general rule. They are
transferable and are generally a creation of statute.
○ The intangible nature of intellectual property renders the exclusion of
others difficult.
● Various statutes confer intellectual property rights as a mechanism of excluding
other persons.
○ In Kenya, a legal and institutional framework has been established to
ensure the protection of IPRs.
○ The Constitution provides a firm legal basis for guaranteeing the property
rights (including IPRs) of every person in Kenya.
○ The Industrial Property Act, which has domesticated the Agreement on
Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement)
and the Patent Cooperation Treaty provides for the protection of industrial
 designs and establishes Kenya Industrial Property Institute (KIPI), a body
tasked with the administration of patents, industrial designs and
trade/service marks.
○ Other acts include: The Copyright Act, Trade Marks Act and the Anti-
Counterfeit Act.

Patents
● Patent law protects inventions and some kinds of discoveries. A patent vests an
exclusive right on an inventor to prevent others from making, selling, distribution,
importing or using their invention, without license or authorisation, for a fixed
period of time in return for disclosure.
○ The invention must meet 3 requirements: novelty, inventive step and
industrial applicability.
○ The Industrial Property Act makes provisions for the promotion of
inventive and innovative activities and the granting of patents, utility
models, technovations and industrial design rights.
○ KIPI promotes innovation in the country, considers applications for the
grant of industrial property rights and administers the Act.

Copyright
● Copyright protects “original forms of expression” that have been reduced into
tangible forms, e.g. novels, movies, musical compositions and computer software
programs for a specified duration.
○ Copyright protection in Kenya is governed by the Copyright Act of 2001.
○ The Act establishes the Kenya Copyright Board and assigns it the core
mandate of overseeing the implementation and administration of national
copyright laws and any international agreements entered into by Kenya.
○ The Act lists the following as works eligible for copyright: literary, musical,
artistic, audio-visual works, sound recordings and broadcasts.
○ The period of protection is 50 years from the date of publication or
recording or from the date of death of the author in the case of literary,
musical and artistic works.

Geographical indications
● A GI is a sign used on products that have a specific geographical origin and
possess qualities or reputation due to that origin.
○ It mainly consists of the name of the place of origin.
○ For example, Roquefort identifies a specific cheese made in Roquefort-
sur-Soulzon, a region in Southwest France.
 ● A GI is protected under various international agreements including the
Agreement on Trade-Related aspects of Intellectual Property Rights (TRIPS)
Agreement.
○ GIs are not used only for agricultural products.
○ They can be used to highlight a product having specific qualities due to
human factors found in its place of origin, for example, the handicraft
making traditions of local communities.

Databases
● Databases have gained a lot of attention with the coming of the information and
technological age. It is central in the distribution of arranged content.
○ Databases which constitute creative compilations are protected through
copyright in the Berne Convention and under the WTO/TRIPS Agreement.
○ Some are also protected on the basis of the effort made in compiling
them.
● Database right is conferred on the ‘maker’ of the database who is the person who
takes the initiative in obtaining, verifying or presenting the contents of the
database and assumes the risk of investing in it.
○ Currently, databases are not protected in Kenya.
○ With the growing adoption of sui generis frameworks for the protection of
traditional knowledge (TK) held by communities, some countries such as
China, Venezuela and India have resorted to the use of TK databases and
registries.

Utility models
● Utility models are a form of intellectual property protection granted for inventions
with fewer requirements than those of patents.
○ The only requirements stipulated by the Industrial Property Act for an
invention to be conferred with a utility model certificate are that it has to be
new and industrially applicable.
○ It also confers a shorter period of protection than a patent.
○ Utility models are regulated under the Industrial Property Act which
provides in section 82 that they shall be protected for a period of 10 years.

Trade marks
● Trade mark law protects words and symbols that identify for consumers the
goods and services manufactured or supplied by particular persons or firms.
○ In Kenya, trademarks are regulated by the Trade Marks Act, which is
administered by the Registrar of Trade Marks.
 ○ A mark may be registered if it meets at least one of the following: specially
represented name of a company, firm or individual, signature, invented
words, and any other distinctive mark.
○ A well-known mark may also be protected in Kenya even where the owner
of such a mark does not engage in business activity in Kenya.
○ The Act protects registered trademarks for a period of 10 years which may
be extended upon renewal.
○ A registered trade mark may be transferred and assigned. However, once
a trade mark has been registered, it can only be used for the particular
good that it was registered for and cannot be used for other goods.

Industrial designs
● Industrial designs protect the aesthetic aspects (shape, texture, pattern and
colour) of an object, rather than its technical feature.
○ Under the Industrial Property Act, an industrial design must be registered
if it is new, so as to vest in the holder the exclusive right to sell goods
bearing the design.
○ The protection period for industrial designs is a term of 5 years and may
be renewed for 2 more terms.
○ Industrial designs have been granted with respect to various shapes of
objects (e.g. soap and plastic packaging material).

Technovation
● A technovation is defined by the Industrial Property Act as a “...solution to
a specific problem in the field of technology, proposed by an employee of
an enterprise in Kenya for use by that enterprise, and which relates to the
activities of the enterprise but which, on the date of the proposal, has not
been used or actively considered for use by that enterprise.
○ An employee, whose duty includes the proposing of technovations,
is only entitled to a technovation certificate where the degree of
creative contribution exceeds that which is normally expected of
such employees.
○ Where several employees request a technovation certificate for the
same technovation, the employee who is the first to make the
request is the one entitled to the certificate.
○ Where a request for a technovation certificate is made jointly by 2
or more employees, the certificate must be issued in their joint
names.
○ A technovator is entitled to remuneration where technovation is
communicated to a third party.
Plant breeders’ rights
● Plant breeders’ rights are granted to breeders of new, distinct, uniform and stable
plant varieties.
○ The Seeds and Plant Varieties Act regulates the test and certification of
plant varieties and the granting of property rights to individuals
undertaking such activities.
○ It provides for the establishment of a national authority to oversee the
seeds and plant varieties protection and administration.
○ Plant breeders’ rights are granted where the new plant variety is:
■ Morphologically, physiologically or otherwise sufficiently
distinguishable by one or more characteristics from commonly
known varieties,
■ Is uniform or homogenous in its reproduction features
■ Stable in its essential traits.
○ The rights are granted for a duration of 25 years in the case of trees and
vines and 20 years for other seeds and plant varieties.

Farmers’ rights
● Farmers’ rights are rights arising from the past, present and future contributions
of farmers in conserving, improving and making available plant genetic
resources, particularly those in the centres of original or biodiversity.
○ Farmers’ rights are protected under the International Treaty on Plant
Genetic Resources for Food and Agriculture.
○ This form of protection was introduced on the realisation that the
conventional intellectual property rights system does not adequately cater
for the rights of farmers who have conserved and improved indigenous
plant varieties for years.
■ For example, classical IPR tools do not recognise local farmers as
innovators and therefore, does not entitle them to such rights.

Traditional knowledge as a form of IPRs

● Traditional knowledge refers to the knowledge, innovations and practices of
indigenous communities, collectively owned and transmitted orally from
generation to generation. It is a form of IPRs.
○ However, it is not as adequately protected in law as other forms of IPRs
since it does not sit well with the classical conception of IPRS.
○ This is partially because of the lack of a comprehensive indigenous
cultural property theory.
 ■ Existing property structures have a tendency to conceive property
in the Eurocentric and narrower sense, thus edging out communally
held property.
■ Additionally, traditional knowledge is not likely to pass the strict
requirements for IPRs protection. For example, traditional
knowledge may not meet the patentability test of novelty as it is a
trans-generational asset passed down from one generation to the
other. Because a huge percentage of traditional knowledge is not
new, it becomes difficult to identify who the particular creator is as it
is handed down from generation to generation.
● Kenya is a signatory to a number of international agreements that seek to protect
traditional knowledge. These instruments prohibit the misappropriation of
traditional knowledge so that it can benefit indigenous communities. However, it
must be noted that most of them employ the Eurocentric framework for protecting
property which is not appropriate for traditional knowledge.

Week 6: Regulation of Property Rights key issues

● The basis for regulation of property rights in land - social and political
● Doctrine of eminent domain and police power
● Community based regulation
● Public trust doctrine
● Environmental considerations
● Chapter 6 of Dr Kariuki’s book
● Kelo v City of New London (2005)
● Joseph K Nderitu and 23 others v AG and 2 others
● Patrick Musimba v National Land Commission and 4 others (2014)

Rationale for regulating property rights

● Compared to other legal entitlements, property rights are unique as they govern
the attachment that people have over ‘things’, relationships with ‘things’ and
various proprietary ‘activities’ and interests.
○ Property rights, unlike other rights, are largely dependent on social
relations.
○ One is not a property owner strictly speaking, if others do not recognise
and respect his or her rights. Thus, property rules have evolved over time
 to regulate proprietary relations and the multiple and at times competing
interests over property.
● Property rules are informed by varied circumstances and represent a conundrum
of guidelines establishing fluid relationships for various forms of property.
○ Murphy and Roberts appreciate this by noting that property rules have
emerged over a long period of time as a result of 3 interconnected yet
distinct processes. These are:
■ First, the work of lawyers in their chambers where they devise
mechanisms meant to give effect to clients’ wishes.
■ Second, the vicissitudes of litigations.
■ Third, occasional legislative intervention, usually confined to fairly
narrow defined problems which lawyers or judges have
encountered in the course of their work.
○ To this, one can also add other social, economic, political and cultural
changes in society that may influence property and its regulation.
■ For example, rising population, rising demand for food for
agriculture and investment and climate change, may influence
property use and property regulation.
● Property regulation by the state then becomes important in maintaining a civil
society, order and stability. It is the role of the state to protect private property
rights but also promote the public interest.
○ Property regulation thus aims at striking a balance between the state’s
exercise of its sovereign powers (embodied in its compulsory acquisition
powers and development control powers) and the enjoyment of property
rights by persons.
○ Courts may also play an important role in mediating potential conflicts that
arise with the exercise of regulatory powers.
● It is noteworthy that although the law may prescribe property rules that are to
guide the state while regulating proprietary relations, there is no single framework
that contains all property rules.
○ They are scattered in various instruments and in the customs, religious
laws, beliefs and traditions of communities.
○ Moreover, and because of social changes affecting property relations,
rules regulating property are in a constant state of flux.
○ However, because of contestations over the true cradle of property rights,
some scholars have dispelled the notion that law is the source of property
rights and are thus opposed to the use of law in protecting a right whose
origin is very much contested.
● Regulation of property is also done to ensure that there are efficient markets.
 ○ An economic view of property posits that an efficient market system arises
if the property system confers ownership over all resources, exclusivity,
transferability and enforceability.
○ Property entitlements cannot be secure and easily tradable without
adequate state protection.

Eminent domain or compulsory acquisition power of the state

● The right to own property and the sanctity of property has been the subject of
many scholarly writings. Judicial attitude has for many years leaned towards the
jealous protection of property rights. Any limits and intrusions on the right to
property are seen as being uncalled for and are thus prohibited.
● So cherished is the right to property, that it is nearly considered an absolute right
save for two conditions that have been used to qualify its almost absolute nature.
○ First is the stipulation that one should not use his property in a manner
that impairs his/her neighbour’s right to enjoy his/her property
(development control or police power of the state)
○ And second is the legal requirement that private property rights must bow
to the superior rights of the sovereign when called upon to surrender the
property for public exigencies (eminent domain or compulsory acquisition
powers).
● The origins of the doctrine of eminent domain are traceable to the feudal notion
of landholding, where the state as a sovereign had a radical title to all the land in
its territory, and could thus take away private property interests.
○ However, with time and as the doctrine developed, two conditions were
imposed on the exercise of this power.
■ First, the expropriation had to be for a public use.
■ And second, the government had to pay just compensation for the
taking of property.
● Without the 2 pre-conditions, the exercise of eminent power by the state cannot
be justified. One can also argue, therefore, that compulsory acquisition of
property is justifiable from a social-utilitarian outlook, as it overrides private
property interests to benefit the wider public.
○ It is worth nothing that in Kenya today the power cannot be exercised as in
feudal times. Whereas in feudal times, the sovereign had radical title over
all land, in Kenya radical title belongs to the people of Kenya.
○ As such, the exercise of compulsory powers must follow due process.
● Compulsory acquisition is only exercisable where the state intends to acquire a
person’s property for a public purpose or in the public interest. The ideological
underpinning here is that if the state’s power to take property is left unrestricted,
it can jeopardise private property rights.
 ○ Thus, the exercise of compulsory acquisition powers should strive towards
ensuring an aggregate public utility is arrived at with the taking. There
ought to be clear safeguards in place to ensure that this power is not
abused.
● One of the most contentious debates around eminent domain regards what
constitutes a public purpose. The US Supreme Court had occassion to address
this question in the case of Kelo v City of New London.
○ In this case, the complainants’ properties were being acquired for use in
an economic development plan. The plan was expected to increase jobs
and raise taxes. The complainants argued that this did not constitute a
public purpose.
○ The Court rules that even though the land would not be open to the public,
the development plan constituted a public use. The Court required any
literal requirement that condemned property to be put into use for the
general public arguing that such a literal requirement ‘proved to be
impractical given the diverse and always evolving needs of society’.
○ It further held economic development to be a classic government function
incapable of distinction from other public purposes previously upheld by
the Court. It rejected the argument that acquisition for economic
development may ‘blur the boundary between public and private
takings…’.
○ For the Court, the issue to be determined is whether the purpose in
question is public. It did not concern itself with the question whether a
particular parcel of land was necessary for the project.
● The US Supreme Court has construed the ‘public use’ requirement quite broadly.
Two main approaches have been adopted by the Supreme Court.
○ The first approach is that a ‘public use’ requirement will be met so long as
the use of eminent domain powers by the state is ‘rationally related to a
conceivable public purpose’.
■ This was the holding in Hawaii Housing Authority v Midkiff where it
was held that the taking of land concentrated in the hands of a few
individuals for distribution to the wider population amounted to a
legitimate public purpose.
○ The second approach is that acquired property needs not to be open to
the general public after the taking and the property may even be turned
over to some private use as held in the case of Kelo v City of New
London.
● Similarly, in Kenya the law has stipulated that compulsory acquisition must be
done pursuant to a public purpose. For instance, the repealed Constitution
provided that land could be compulsory acquired if it was in the interest of
 defence, public safety, public order, public morality or the promotion of public
benefit. However, eminent powers under the repealed Constitution were often
abused by government officials.
○ Currently, the 2010 Constitution has sought a way to remedy this in article
40(3).
○ Public purposes have been defined in section 2 of the Land Act. They
include, but are not limited to, transportation, public buildings and public
utilities.
● The courts in Kenya have also held that compulsory acquisition can only be done
if the taking is for a public purpose. In Joseph K Nderitu and 23 others v AG
and 2 others, it was held that article 40 of the Constitution gives all persons the
right to property and the property can only be compulsorily acquired if the
acquisition is for a public purpose or is in the public interest.
○ The petitioners were seeking conservatory orders to prevent the
respondents from compulsorily acquiring their land without following due
process.
● The other requirement is that just and adequate compensation must be paid to
the person(s) whose property has been acquired. Just compensation is meant to
ensure that the person is taken back to the position where they could have been
had their property not been acquired compulsorily.
○ Courts have interpreted just compensation to mean the fair market value
of property. This is to ensure that the owner of the property fetches an
equivalent of what the sale of the property at the market value could have
given him.
● The limits placed upon the exercise of the eminent domain power are aimed at
striking a balance between the protection of private property on one hand, and
the promotion of the public interest through the acquisition, on the other.
○ To achieve this balance in Kenya where property (especially land) is so
emotive and contested requires strict adherence to the constitutional and
statutory provisions requiring due process in exercise of the power.
○ Courts have been reluctant to invalidate the exercise of compulsory
acquisition powers where due process has been followed.
○ In Patrick Musimba v National Land Commission & 4 others, the
petitioner claimed that the construction of the standard gauge railway was
done in a manner that breached his statutory and constitutional rights. It
was the petitioner’s claims that NLC and the Kenya Railways Corporation
had not given adequate compensation during the acquisition and that this
was in violation of articles 40, 60, 47 of the Constitution.
 ○ The Court held that the standard gauge railway project undertaken by the
government had demonstrated the public use requirement and the
compulsory acquisition was justified.
○ The Court, however, highlighted that once the value of compensation to
be issued had been determined, the State could go ahead and acquire the
land notwithstanding the fact that compensation had not yet been paid.
● However, where strict adherence to the requirements of acquisition is lacking
courts have revoked such irregular processes. For example where notice for
acquisition ought to be given but the same has not been given, courts have
declared the resultant acquisition illegal.
● Procedural safeguards have been established to be critical in ensuring protection
of the liberties of individuals against interference by the state. In Abdulla Akiio &
2 others v Kenya Urban Roads Authority, the petitioners were challenging the
constitutionality of the compulsory acquisition done by the respondents and they
also claimed the amount of the proposed compensation to be inadequate.
○ It was held that disputes relating to compulsory acquisition of land were to
be resolved by the ELC.
○ In addition, governmental decisions on compulsory acquisition are subject
to judicial review since they are an exercise of powers donated by statute.
○ The decisions may be appealed against in the ELC but this may not
preclude the right to judicial review.

Development control or police powers

● Apart from the power to compulsorily acquire property, the state has the power to
regulate the manner in which individuals use property and the uses they put
property to. It is a policing power that the state has over the use of property. Just
like compulsory acquisition, police power is a representation of the sovereign
powers of the state.
○ Nevertheless, the exercise of police power does not extinguish property
rights but merely regulates property use to vindicate the overriding public
interest.
○ Again, unlike eminent domain powers, the state is not obliged to pay
compensation whenever it exercises its police power, on the rationale that
it is simply requiring the property owner to stop causing harm to the public
interests.
○ Some of the public interests the power seeks to protect are healthy,
safety, morals and the general welfare of its citizens.
 ○ In Kenya, this power is enshrined in article 66(1) of the 2010 Constitution.
● Being a regulatory tool, police power can be used by the state in instances where
an individual is using property in a manner that compromises the enjoyment of
property rights by others.
● In property law, police power is said to be more elusive than the eminent domain
power as it is more expansive and less circumscribed by constraints upon its
exercise.
○ However, the police power of the state are more intrusive and have a
great impact on the enjoyment of rights.
● Because of the expansive nature of police power, it is common to find different
laws addressing aspects of public health, land, land use planning, defence,
morality, public order, public safety etc.
○ Land use planning laws, for instance, require persons intending to build
houses on their property to obtain the permission of ‘planning authorities’,
which are obligated to make physical plans. The idea is to protect
neighbourhoods by requiring people to put up structures that comply with
the relevant plans.
○ Similarly, environmental laws could require a person intending to put up a
programme, activity or projects which have any adverse impacts on the
environment to have an environmental impact assessment study done.
○ The rationale is to ensure that such programmes, activities or projects do
not take place without the authorisation of the National Environment and
Management Authority.
○ There could also be regulations requiring a local authority to protect areas
as historic sites or preventing individuals from changing the outlook of
properties in those areas. Examples of regulations affecting property use
are the Noise and Excessive Vibration Regulations which prohibits an
owner from making or causing to be made any loud, unreasonable,
unnecessary or unusual noise which annoys, disturbs, injures or
endangers the comfort, repose, health or safety of others and the
environment.
○ There are regulations that seek to prevent different forms of pollution by
property owners in Kenya.

Public trust doctrine

● Most property regimes recognise the fact that certain goods are vested in the
general public, to be enjoyed in common and for the benefit of all in equal
measure.
○ Such resources that are vested in the public for the good of all are referred
to as public property.
 ○ Individuals are prohibited from arbitrarily expropriating such goods
because the public purposes they are meant to serve may be defeated.
● With public property, a form of ‘trusteeship’ is established where the state is put
under a fiduciary duty to protect the property in the public interest.
○ Joseph Sax argues that the application of the doctrine places useful
restrictions on the use and management of public property in 3 broad
ways.
■ First, property subject to the trust must not only be used for a public
purpose, but must be held available for use by the general public.
■ Second, the property may not be sold out, even for a fair cash
equivalent.
■ Third, the property must be maintained for particular types of uses.
○ Public property creates significant interests that are so intrinsically
important to every citizen that their free availability tends to mark the
society as the establishment of public utilities such as national park, public
beaches, public grounds for recreation and public ways of enjoyment for
all citizens.
○ It is imperative for the state to ensure that such resources are put to their
proper uses and that it only acts as the custodian of public goods.
● In Kenya, there are many incidences of misappropriation of public property and
abuse of the public trust by the state and its agents.
○ Public properties including public land set apart for state corporations,
public schools, hospitals, forest lands, riparian areas and other public
utilities have been converted into private ownership, courtesy of dubious
and corrupt dealings by state officials.
○ Thus, efforts by civil society organisations in leading campaigns to
safeguard these areas and instituting suits are a welcome move.

Week 7: Land as a form of property

● Importance of land
● Land as a human rights issue
● History of land holding in Kenya - pre-colonial, colonial and post colonial period
● The land question - dispossessions, disparities in land holding, overemphasis on
land as a form of property, illegal acquisitions
● Multiplicity of land laws and breakdown of land institutions
● Environment degradation, poor land use planning, marginalised groups, women
and their land rights
● Chapter 7 of Dr Kariuki’s book
● Isaka Wainaina v Murito (1923) 9(2) KLR 102
● Olga Tellis v City of Bombay (1985) 2 Supp SCR 51
● Mombasa High Court Misc. Civil Suit No. 169 of 2000.

Introduction
● The meaning of property is not just a ‘thing’, as a layperson would call it. It
extends to a web of legal relationships that can arise out of one being regarded
as an owner.
○ Ownership can be tangible or intangible.
● Land is a real form of property (perhaps one of the most important forms of
property).
○ It is the source of livelihoods and a basis for accumulating other forms of
property.
○ In Kenya, land has been at the centrepiece of the social, economic and
political development of the country since the pre-colonial era depicting
the diverse value it possesses.
○ Its importance in Kenya is underscored in the 2010 Constitution and
various government policies such as Vision 2030.
● However, in spite of its importance and many values, there are still inequalities in
land ownership and access to land. These two elements have escalated to
violent conflicts threatening the social economic and political fabric of Kenya.
○ Land is a finite resource.
○ Most of the landmass in Kenya is not suitable for productive farming,
which requires land available to be utilised sustainably, efficiently,
equitably and productively.
○ The law defines what land is in a given society.
○ For example, in the Kenyan Constitution, see article 260: land is the
surface of the earth and subsurface rock; any body of water on or under
the surface; marine waters; natural resources; air space above the
surface.
● There is the aim to define ‘land’ broadly, following the maxim ‘he who owns the
land owns everything reaching up to the very heavens and down to the depths of
the earth).
○ The aim is to capture ‘what Kenya owns or has effective control over’
rather than define ‘land’ in the strict sense.
● According to the labour theory, an original owner of property is one who
commingles his labour with a ‘thing’, thus establishing ownership over the ‘thing’.
 ○ Property rights in land can also arise from occupation or possession, in
most cases first possession.
○ There is no single theory that best explicates the origin of property rights
in land. However, the incidences of ownership propounded by Honoré
usually evidence the granting of certain rights to individuals over land.
● At common law, the legal concept of land is expressed in the maxim cujus est
solum, ejus est usque ad coelum et ad inferos, which underscores the
sacrosanct nature of property rights (property holders have rights to not only to
the plot of land itself, but also the air above and the ground below).
● The technical meaning of land extends beyond the physical solum to everything
attached to and the space above it.
● Four basic categories of property rights systems in land are identifiable in many
places:
○ None (terra nullius or open access)
○ Communal property
○ Private property
○ State (or public property)
● Open access implies that rights are left unassigned and hence no claim can be
laid over the land by anyone. There is an open-to-all policy that offers no
incentives to anyone to conserve resources thus occasioning rapid degradation.
○ Degradation of the resource is inevitable because there is no incentive to
conserve yet accruing benefits are enjoyed by all.
○ It is assumed that with private property rights, the owner is in a position to
internalise externalities that come with ownership and hence, use of the
property efficiently, productively and sustainably.
■ When it comes to land holding, all the four regimes may coexist in a
country, as is the case in Kenya (see article 61 of the Constitution).

Importance of land

● As a form of property, land plays an important role in the social-cultural,

economic and political development of Kenya.
○ Land fosters social stability and allows social relations to flourish.
● Land also plays an important role in fostering the common good and has cultural
and spiritual significance among communities.
○ There are many examples in the world of areas that are considered holy
and designated for worship activities.
○ Land is necessary for the exercise of diverse cultural practices including
pastoralism, oath taking, hunting and gathering, carrying out burial and
circumcision rites.
 ○ Most communities in Kenya have areas regarded sacred and that are
used for religious or worship purposes such as near sacred trees
(mugumo tree, kaya shrines).
● Land also plays important economic functions.
○ It is one of the factors of production.
○ It provides the basis upon which numerous economic activities are
practised including agriculture, fishing, settlement, tourism, transportation,
pastoralism and the construction of infrastructure.
● Land in Kenya has retained a focal point in the history of the country, the culture
and politics in Kenya. Access to land and ownership, use and control remain an
emotive and politicised issue in contemporary Kenya.
● State sovereignty, codified in article 1 of the UN charter, also represents the
inviolability of the space which a state rightfully lays claim to. Historically, claims
or conquests over territories have been used to augment the economic and
political strength of nations.
○ Colonialism in Africa, especially the establishment of white settlements,
largely depended on expropriation of native lands.
○ Concomitantly, the independence wars waged in most of Africa were
premised on the need to take back land that had been expropriated by the
colonialists.
○ Land has also been the subject of the delineation of political jurisdictions,
spheres and other administrative regions in a country.
○ In Kenya, the division of the country into counties largely revolves around
the land space that is to be administered by the various county
governments.

Land as a human rights issue

● Access to land is essential in ensuring that individuals lead a dignified life, can
access resources and credit they need for their livelihoods, develop their
capabilities and make choices necessary for the enjoyment of an adequate
standard of living and other fundamental human rights.
○ Access to land is regarded as a fundamental right as it enables people
access and realise other rights such as the right to life, food, housing,
sanitation and water.
○ In Olga Tellis v City of Bombay, the Indian Supreme Court made a link
between the constitutionally protected right to life and the unprotected
right to livelihood and access to pavement space for the homeless in then
Bombay.
● Access to land is necessary for the realisation of human rights. For example,
agricultural productivity to meet food demands is largely predicated on the
availability of land.
○ With insecure or no land rights, food security then becomes a mirage
especially amongst rural communities.
○ In addition, the right to housing requires secure land rights otherwise
people will be arbitrarily evicted from their dwellings due to contestation
over land ownership.
○ Access to water for domestic and productive uses is also heavily pegged
on land ownership.
○ Access to land also affords social security as one is guaranteed a
constant source of income or collateral once they stop working.
● Various international legal instruments have thus provided for some form of the
right to land. For example, the UDHR in article 17 has provided for the right of
persons (individually or jointly) to own property.
○ The International Covenant on Economic, Social and Cultural Rights
(ICESCR), on the other hand, is silent on the right to own property. This
silence is explained to originate from the antagonistic ideology of the
Western and Eastern blocs as well as conflicting views of the global North
and South.
○ In Kenya, the Constitutions enshrines the right to property in Article 40
where all persons including women, youth and marginalised communities
have the right to own land.

History of land-holding in Kenya: Pre-colonial, colonial and post-colonial

antecedents
● Pre-colonial period: Land-holding amongst most African societies was
communal.
○ Under communal forms of ownership, there existed structures allowing
individuals access to land-based on membership and performance of
reciprocal obligations in a given community.
○ Land ownership and use were also governed by the respective customary
laws of the various ethnic communities.
○ Land was held as a transgenerational asset, managed at different levels of
social organisation and used in function-specific ways by the communities
and groups.
○ All in all, the allodial title to land belonged to the community in general.
● Colonial period: With colonisation, western notions of property were introduced in
Kenya leading to the expropriation, subversion and destruction of African
property systems.
 ○ Colonialism had an impact on African landholding in 3 ways: land
alienation from Africans, the imposition of English property law and the
transformation of customary land law and tenure.
■ Land alienation: started with the Arabs who practised the slave
trade in the territory, well before the coming of the British settlers.
This is supported by the subsequent agreements signed before the
British and the Sultan of Zanzibar over the 10-mile coastal strip.
■ The imposition of English Property Law: The colonial
administration, therefore, sought to use law to justify their
acquisition of territory in Kenya.
■ Transformation of customary land law and tenure: Total
dispossession of the native communities occurred in 1915 upon the
enactment of the Crown Land Ordinance whose effect was to vest
all land in the territory in the Crown, leaving native as mere tenants
at the will of the Crown.
● The full effect of the 1915 Ordinance is well captured in the
judgment of Barth CJ in the case of Isaka Wainana v Murito
where the plaintiffs had claimed ownership of a parcel of
land on the basis that they had purchased it from the
Ndorobo community before the European settlement.
● Barth CJ, explaining the full import of the 1915 law, stated
‘the effect of the Crown Lands Ordinance (1915) and the
Kenya (Annexation) Order-in-Council (1920) by which no
native private rights were reserved, and the Kenya Colony
Order-in-Council (1921) is clearly inter alia to vest land
reserved for the use of a native tribe in the crown. If that be
so, then all native rights in such reserved land, whatever
they were disappeared and natives in occupation of such
Crown land become tenants at the will of the Crown’.
● Post-colonial antecedents: The developments discussed before point to the
attempts made by the colonial government to introduce western property models
and disrupt African property relations.
○ Also, the introduction of the money economy drove a majority of Africans
into European farmers where they worked for meagre pay and settled on
the farms where they worked.
○ A major problem that therefore faced the independence government was
the manner in which the landless were to be resettled. The government
had the option of either retaining the policies adopted by the colonial
government (they chose this) or adopting new policies altogether.
 ○ The independence government followed the system of adjudication,
consolidation and registration in the vesting of land rights. It was
subsequently realised that there was a need for adoption of a system
where the holding of land by groups was permissible.
○ Large disparities in land ownership, have, therefore, been witnessed in the
country and have been the source of conflicts. A close linkage is also
evident between land injustices and ethnic violence in Kenya.
○ The Moi government failed to address the land problems. The
constitutional review process among others sought to bring reforms in the
land governance sector by seeking to alleviate the injustices and social
tensions, but as it was incomplete by 2007, the already continuing process
of social exclusion and community grievances manifesting in electoral
violence, continued unabated.
○ The constitutionally stipulated land law reform has been done with the
enactment of the Land Act, Land Registration Act, and the National Land
Commission Act, thus repealing the plethora of land laws obtaining under
the old constitutional order.

The Land Question

● Kenya was a settled rather than a protectorate colony.
○ In settled colonies, the colonialists established settlements within the
territories occupied making the acquisition of land from natives very
necessary to facilitate their economic, social, political and strategic
enterprises (such territories include Angola, Algeria, Kenya, South Africa
etc).
● Because of the important role of land, numerous challenges emerge in relation to
its ownership, management and use, which water down the envisioned principles
of land-holding in the National Land Policy.
○ Such challenges have origins in geo-political, economic, social and
demographic factors.
○ Reforms undertaken in most of Africa show some similarities due to the
similar colonial history the countries went through.
● In tracing the origins of the land question(s) in Kenya, the National Land Policy
identifies 3 aspects: political, economic and legal.
○ Political: manifests itself in the continuity or modification of the policies
adopted by the independence government from the colonial government
against the expectation of many Kenyans who had hoped for the
introduction of new policies.
○ Economic: The main objective of the colonial settlers was to ensure the
entrenchment of a dominant settler economy while subjugating the African
 economy through the imposition of unfriendly legal and administrative
mechanisms. This succeeded in disorienting the African economy and
property holding systems.
○ Legal: The colonial government introduced numerous laws that operated
alongside the African customary land tenure system. The duality in the
legal regime resulted in confusion and in the end, customary property
relations suffered major blows as they were considered inferior to the
statutory land tenure systems.
● Certain demographic forces such as population growth and migration have also
resulted in challenges in the land sector.
● The arrival of the European settlers saw the prevalence of dispossession of
African land.
● Another problem that has bedevilled the land regime in the country relates to
disparities witnessed in land ownership.
● The history of the establishment of colonial rule is replete with numerous ways
that the colonial government adopted to facilitate acquisition of land in the
country.
○ Land was key in the economic interests of the colonial powers.
○ Even among native African communities, dominating other communities
and the land held by these communities was instrumental in strengthening
their political and economic bases and domination over other
communities.
○ This mentality has been deeply rooted among Kenyans where ownership
of large tracts of land is synonymous with being wealthy. It is notable that
some of the wealthiest persons in Kenya trace their wealth to the vast
tracts of land they own.
○ Financial institutions in Kenya have also traditionally relied on land as
collateral for guaranteeing credit from persons seeking loans.
○ Overemphasis on land as a form of property has resulted in many
Kenyans not focusing on acquiring other forms of property.
● In many parts of Kenya, land has been acquired without paying attention to
existing land rights. The introduction of British colonial settlement in Kenya is an
example where land was acquired without taking into account claims by
communities that occupied these lands.
○ Illegal acquisitions of land were particularly evident in the post-colonial era
with the main casualties being government and Trust lands.
● The introduction of foreign law therefore had two interlinked effects, the first was
ratification of the alienation of African land and the subsequent confusion in the
land administration regime. What has also been witnessed in the country is the
rapid breakdown of the institutions tasked with the management of land.
 ● Several land use practises in Kenya have had deleterious effects on the
environment largely attributable to the development goals pursued in the country
and the population growth.
● Poor land use planning is a common problem in Kenya with diverse negative
consequences, especially in urban areas.
● Women and other marginalised groups have systematically been excluded from
land ownership in the country notwithstanding the fact that access to land is of
paramount importance in improving the situation of these groups.
● Application of customary and religious laws in practice has seen control over land
matters being exerted by certain segments of the society while totally ignoring
the land needs of women and marginalised communities.

Week 8: Land tenure key issues

● Conceptualising tenure
● Land tenure: answering the tripartite questions - who owns what interest in what
land?
● Categories of land - public, private and community land
● Chapter 8 of Dr Kariuki’s book

Conceptualising tenure
● Conceptualising land tenure using Okoth-Ogendo’s tripartite question ‘who holds
what interest in what land’.
○ ‘Who’: People’s dimension of land tenure constituting the person, the
proprietor, landowner or claimant of a subject of ownership.
○ ‘What’: Quantum or amount of rights that the ‘who’ can have in land.
○ ‘What land’: The spatial dimension of tenure and includes the physical
space (broad categories of community, public and private land).
● Ownership of property creates social obligations.
○ In landholding, use and management, there exists a multitude of overlays
of manland relation that define a society’s interactions with land.
○ The totality of all these relations and their embodiment are defined in the
concept of tenure. Tenure denotes the recognition of a right, a right to own
or hold land.
○ It could also be a right of persons to use a resource and to determine the
nature and extent of use by others. A right signifies an affirmative claim in
favour of one as against another in respect of a given situation or object in
which the right holder has an interest.
● Land tenure refers to the rules that define how individuals gain access to, and
acquire, use rights over land either temporarily or permanently.
 ○ It also determines the physical and proprietary relationships between
persons and land, and is reflective of the manner in which rights over land
are distributed in society.
○ According to Okoth-Ogendo, to determine the operative tenure
arrangement in a given context one needs to answer the tripartite question
as to who owns, what interest in what land.
● Tenure as a land law concept is traceable to the Norman conquest of England in
1066 when King William made a proclamation that all land in England was owned
by the King and successors to the crown.
○ Under feudalism, the crown as the ‘overlord’ held radical title to land and
was at the apex of land relations. ‘Tenants’ who were subjects of the
crown did not own land per se but held interests in land akin to user rights.
○ The relationship between the feudal kings and their subjects has
contributed significantly to our understanding of how people can have
interests in land without owning the physical space.
○ Today, the concept of tenure has evolved to represent the entire relations
that people have with land and other land-based resources and the
attendant limitations.
● In the African system, land was held collectively by the community and
community members had access and use rights (based on a specific function,
membership status and performance of reciprocal obligations to the community).
○ Property is a transgenerational asset meaning that African land-holding
does not put human beings at the centre of the definition of land, as
western conceptions of property would do.
○ Human beings are not the only ‘owners’ of land but relate with it as
‘relatives’ and as ‘equals’. In other words, mother nature is personified in
the African context and is highly revered as a source of life.
● In view of the competing interests over natural resources, tenure rules have also
been devised to govern the management of resource found on land.
○ It is also about access, rights to harvest forest resource, to make
decisions about use patterns and who is to use the resources and who is
prevented from using them and to transfer, sell or lease the resources.
The broad precepts of forest tenure, therefore, include ownership, tenancy
and arrangements for the use of forests.

● Another category of tenure is tree tenure. Under it, trees become the basis of
ownership, distinct from land.
○ Traditionally, especially in the coastal region, it is possible to have rights to
the coconut trees (usufruct rights) growing in another’s land.
 ○ Tree tenure would, therefore, regulate how the person with the rights of
accessing and enjoying the trees would do that while respecting the rights
of the landowner.

Answering the tripartite question: What interest?

● Interest describes the relationship that the landowner has with the land. It is the
totality of rights or quantum or content or amount of rights vested in an owner
with respect to a particular parcel of land.
○ These rights are usually subject to rights held by other persons and
regulations imposed by the state.
● Ownership is one of the ways through which one’s interest in land can be
manifested. Ownership is viewed as a relational concept which cannot be
examined without a review of the relationships amongst people regarding
property.
○ Certain incidences are identifiable in the idea of ownership either in whole
or in part.
○ Ownership can either be absolute or limited. Where the interest is
absolute, a person is said to have allodial ownership. Allodial ownership is
the most comprehensive interest in land and it becomes the standard by
which all other interests in land are defined.
○ Ownership of land can further be divided into lesser interests such as
estates, encumbrances and servitudes.
○ Estates define the duration of an interest that a person has over land and
can further be divided into freehold and leasehold. Freehold estates confer
some form of ‘absolute’ interest in the interest holder while leasehold
interests are interests in the land of another for a term.
○ Encumbrances are burdens imposed over land, for example, a charge;
while servitudes are rights that one has over the land of another person
such as easements and profits a prendre.

Answering the tripartite question: interest holder - who?

● The question here is about the entity in which the interest in land is vested.
○ In examining the nature of interest holders, the state features
predominantly as it assumed that it has allodial title to land.
○ As such, the state is the conferrer of land rights and its protector.
○ The state (through property law) defines the tenurial systems that are
existent in the country.
● One of the entities that can hold land or interests in land is the state or the public
collectively.
 ○ However, all land in Kenya belongs to the people of Kenya collectively as
a nation, as communities and as individuals. Radicial title vests in the
people and the state (both national and county governments) holds public
land in trust for the people.
● Communities can also be interest holder. Groups of persons sharing common
ancestry, similar interests of socio-economic conditions, ethnicity, similar culture
or unique mode of livelihood, same geographical or ecological space may be
vested with community land.
● An individual could not expropriate land from the community for his own use. He
had access and user rights to community land.
● Allodial title in the case of communal ownership vests in the community as a
whole, and in some communities, the chief holds land as a trustee on behalf of
the people.
● Under communal form of ownership, interests in land are usually vested following
patrimonial dynamics within these societies.
● Individuals are the last category of persons to hold interests over land. Individual
claim interest on land once they have expropriated sections of the earth to
themselves and their claim is usually backed by the law.

Answering the tripartite question: what land?

● Land tenure denotes the relations that people have in land. Land is, therefore, at
the core of defining tenure.
○ A look at the question “what land?” takes one to the various categories of
land identifiable within a given jurisdiction.
○ In Kenya, three categories of land have been recognised by the
Constitution and these represent the “what land” under the concept of
tenure. Land in Kenya is classified as public, private or community.
● Under the customary landholding system, the question of ‘what land’ was
puzzling since most of the communities were pastoralist in nature and moved
from one open space to another.
○ Boundaries were defined according to tribal limits. However, communities
were able to define the extent of their claims over land and the activities of
the members were largely restricted to these areas.
○ However, the concept of land under customary and common law systems
differs from the concept of fixtures.
● Under the common law, land represented the physical solum and the
attachments to it.
○ Land meant more than the soil but also included all things found in the
aerospace above and any any fixtures on the land which have been put
there even by strangers.
 ○ The commonality between the concept of land in both the customary and
the common law position is the fact that land represents a space, a space
whose use and occupation shapes the relations between persons.
○ This space is delineated in both systems to ensure efficiency in the
property relations and to ensure that there may be no conflciting interests
over the same space.

Land Tenure in Kenya

● Land tenure in Kenya has been largely influenced by various interlocking
historical, ecological, demographic, technological and socio-political factors.
○ Because tenure largely represents social relationships, it becomes
important to examine the ‘social contracts’ prevalent within a given context
to identify the tenure systems.
○ Land tenure in Kenya has gone through much transformation in the course
of history from the pre-colonial era, with the imposition of alien property
laws, to the present day.
○ Before the advent of colonialism, communal land was the prevailing
system. With the introduction of British concepts of property, new tenure
regimes were established, that is private and crown (later government)
land tenure sytsems.
○ These three tenure categories - communal/customary, government and
private tenure - have existed side by side with far-reaching ramifications
on land governance, although not with the same level of protection.
○ There have also existed informal tenure types that have not been
recognised by law per se. Informal tenure mainly exists within informal
settlements (commonly known as slums) where inhabitants are not able to
meet the costs associated with land ownership and, therefore, have to
devise mechanisms to enable to access land and other basic services like
shelter, water, electricity, education, security etc.
○ However, people in such areas continue to suffer tenure insecurity
because formality in property holding has been equated with legality, with
the consequence that property laws have jealously guarded formally
registered property while forcing informal tenures to the periphery. This
has increased tenure insecurity, led to loss of lives from evictions and lack
of access to basic services.
● In Kenya, the Constitution classifies land into 3 tenure types: public, private and
community.

Communal tenure
● Before the introduction of foregin rule, customary law predominantly regulated
and governed relations (including property) among African communities.
○ Land was communally held and radical title rested in the community as a
whole with individuals and families getting only user rights.
○ Communal tenure still obtains even today.
● The defining characteristics of the commons as explained by Okoth-Ogendo are
that land: is held as a transgenerational asset, it is managed at different levels of
social organisation and it is held in function-specific ways (land is granted for
purposes such as cultivation, grazing, hunting, transit, recreation, fishing and
biodiversity conservation).
● Despite the fact that land is held on a communal basis, private rights over crops
and attachments to land can be granted to individuals.
○ Land rights can also be granted to the family or clan.
● Introductions of foreign laws disrupted existing communal land regimes as the
decision of Judge Hamilton in Mulwa Gwanombi v Alidina Visram reveals. The
decision in this case effectively meant that Africans had no title over the land
which they occupied and hence could not transfer title.
● Co-existence of the two land regimes resulted in aduality in land laws and
policies that perpetuated a dual system of economic relationships consisting of
an export enclave controlled by a small number of European settlers and a
subsistence periphery operated by a large number of African peasantry.
● Private property saw massive dispossession of the natives who were forced into
‘native reserves’ established by the colonial government.
○ Okoth-Ogendo documents that the original reason for the establishment of
reserves was simply to make way for European settlement.
○ It is also argued that the reason why the colonial government settled
Africans in dry unproductive lands prone to diseases was fear of
competition in agriculture from Africans.
○ The reserves were overpopulated and lacked basic amenities.
● Colonial chiefs were also used to administer land in the African areas. The chiefs
acted as a trustee of the African communities.
○ A case in point is the 1904 and 1911 Anglo-Maasai agreements signed
between Maasai ritual heads and the colonial government, where the
chiefs signed an agreement stating that it was in the best interest of the
Maasai to move into the reserves to pave way for the British to occupy
their lands.
● Systems adopted by the colonial government to regulate communal property
were not congruent with the dynamics of informal communal holdings.
● Upon the attainment of Independence, the native areas became trust lands. Most
of the land in the country fell into this category.
● County councils were, however, vested with the powers to set apart an area of
trust land for a public purpose following certain procedures. See Section 13 of
the Trust Land Act to see how trust land could be set aside (for public purposes,
for the purpose of prospecting for or the extraction of minerals and purposes that
would benefit residents in the are).
● The President was also vested with powers of setting apart trust land and the
land was to subsequently be vested in the Government of Kenya.
○ These powers vested in county councils and the president were widely
abused.
● Upon meeting the set criteria, any rights or other benefits of that land previously
vested in a tribe, group, family or individual under African customary law were to
be extinguished.
○ Other laws that regulated dispositions of trust land, apart from the
repealed Constitution and the repealed Trust Land Act, are the Land
Consolidation Act, and Land Adjudication Act.
● In spite of the existence of these laws, the management of community land faced
numerous challenges in terms of the way the laws were applied.

Communal holding under the Land (Group Representative) Act

● The Land (Group Representatives) Act provided for the incorporation of
representatives of groups who have been recorded as owners of land under the
Land Adjudication Act.
○ Once group representatives have been recorded as owners of land under
the Land Adjudication Act, the repealed Land (Group Representatives) Act
provides for the incorporation of such groups.
● Group representatives, who were entrusted with land management,
dispossessed group members by disposing group land without consulting
members who, in many cases, were unaware of these transactions. As a result,
there have been conflicts and bloodshed in many parts where this law was
applicable.

Communal holding under the Trust Land Act

● Trust lands have also come under attack from the government and the local
authorities entrusted with their management. Both the repealed Constitution and
the Trust Land Act provided for the administration of trust land.
○ Through their policies, previous governments have focused more on the
protection of private property which has led to massive subdivision and
individual titling of trust land to bring them within the realm of private land
which is accorded more protection.
 ○ Reparcellation of trust land was in some cases sanctioned by the state, a
practice common in the Daniel Moi and Jomo Kenyatta regimes where
trust land was allocated to their friends and family members.
● The Commissioner of Lands perpetuated this abuse by alienating trust land in
some instances against the provisions of section 117 and 118 of the repealed
Constitution and section 53 of the Trust Land Act.
○ Government was often arbitrary in exercising its compulsory acquisition
powers to dispossess communities of their lands.
○ A case in point is the establishment of national conservancies and parks
such as the Lake Bogoria Game Reserve which led to the eviction of the
Endorois community, without taking into consideration their customary
claims to the land.
○ This saw the lodging of a claim by the community for the enforcement of
their rights at the African Commission.
○ The Kenyan government failed to implement the decision leading to the
African Commission on Human and Peoples' Rights to adopt a resolution
during its 54th Ordinary Session on November 5, 2013, in Banjul (Gambia)
calling upon the Government to implement the Endorois Decision.
● The TJRC Report also highlighted the case of Mosiro adjudication section in
Kajiado District where the Minister for Land approved the application of the Land
Adjudication Act to trust land.
● These events signify the continuation of the colonial ideology in relation to trust
land and their continued subjugation.
○ With trust in the land government eroded, government initiatives to
manage and administer trust land may not achieve much to secure
community land.
○ In seeking to reform the land ownership regime in Kenya, the National
Land Policy recommended the designation of land in the country into
public, private and community.
○ It also recommended the documentation of mapping of existing forms of
communal tenure, where customary or contemporary, rural or urban, in
consultation with the groups affected and incorporating them into broad
principles that will facilitate the orderly evolution of community land law.

Public land
● Public land is a category of land that is very important to the state and the
people. It has received much protection over the years both in law and in
practice.
 ○ Although it is largely traceable to the introduction of colonial rule in Kenya,
in traditional African society, there were categories of land that were also
considered public land.
● The passing of the Foreign Jurisdictions Act of 1890 in England and its
application to Kenya meant that the Crown could own land in the territory.
● The powers to grant land rights to individuals were vested in the Commissioner
of the Protectorate.
● In conferring land rights on the Crown, this proclamation disregarded any existing
claims that native communities had.
● Withal, the complete and total dispossession of natives was attained vide the
Crown Lands Ordinance of 1915. The full effect and import of the Ordinance was
explained by Barth CJ in Isaka Wainaina v Murito.
● Upon the attainment of Independence, there was continuity with the trends that
had been adopted by the colonial government.
● The office of the Commissioner of Land was tasked with the administration of
activities relating to sale, letting, disposal and occupation of government land.
● Essentially, the introduction of government tenure had the effect of putting the
state at the centre of land relations in Kenya.
● Mismanagement of public land was also occasioned by legal overlaps and
complex administrative mechanisms.
● Communities and neighbourhoods have also lost land meant for use as
playgrounds, recreational areas, hospitals, schools and other social amenities to
the so-called ‘private developers’.

Private Land
● Formally, private land tenure traces its history to the introduction of colonial rule
in Kenya and the subsequent introduction of English property regime in East
Africa.
○ However, before the arrival of the British settlers, Arab traders had vistied
the Kenyan coast, practised the slave trade and expropriated land for their
idnviidual sue at the expense of customary tenure regimes.
○ Amongst Africans also, there are some who argue that personal property
could be held as private property, explaining why property was used as a
measure of wealth.
○ Both the British and the Arab settlers viewed the property arrangements
that existed among Africans to be weak. They viewed private property as
the solution to the challenges apparently bedevilling communal ownership.

Week 9: Property Rights in Land

 ● Property rights in land in feudal England
● Feudal tenures - services, incidents
● Estates in land - freehold estates, non-freehold or leasehold estates, covenants
implied in leases
● Charges
● Derivative or analogous rights - easements, profit a prendre, licenses,
● Adverse Possessions
● Condominiums and other common interest communities
● Co-ownership-joint tenancy, tenancy in common, tenancy in entirety

Property rights in land in feudal England

● Interest describes the relationship that the landowner has with the land.

Roman Law English Law*

Owner has absolute rights in their Feudal notions of tenure (you could own
property (dominion) with very few estates in land but not the land itself)
restrictions

Exclusive Pluralistic

Single and indivisible rights Fragmented

Feudal tenures - services, incidents

● There were 2 types of feudal systems of ownership:
○ Free tenures - knights and the upper class
○ Unfree tenures - peasants or veillens
● Both these types had services and incidents that were owed to the lord by
tenants.
○ Services - services owed (safety, subsistence)
■ These were defined by what kind of work you provided to be
granted land.
○ Incidents - obligations which burdened the land (homage, fealty, aids,
forfeiture)
■ If a person dies and there exist no heirs, then the property reverts
back to the crown (the sovereign). This is one of the incidences that
is still evident today.

Estates in land - freehold estates, non-freehold or leasehold estates, covenants

implied in leases
● There are two types of estates in land:
○ Freehold - held by the upper class (nobles)
■ Unlimited interest in land
○ Leasehold (non-freehold) - held by the common people who farmed the
land
■ Interests given for a stipulated period of time given to the
commoners and peasants by the crown/nobles.
● Freehold estates: Indefinite period of time (ownership by the holder). The largest
quantum of rights a sovereign can grant to an individual (largest amount of
ownership). Various subsets based on inheritance. It is freely transferable and it
gives a sort of absolute interest.
○ Fee simple: most complete form of ownership, connotes the right to use
over the duration of their lives of the grantees and their heirs (their
lifetimes).
○ Conditional fee simple - held and used subject to certain restrictions.
Connotes an estate that lasts as long as a condition stipulated by the
deed’s grantor occurs.
○ Fee tail - the property interests can only be vested within the family of the
owner (blood relation). In other words, the ownership of property remains
within the lineage of the person holding it.
○ Life estate - lasts for the lifetime of a person
● Non-freehold/leasehold estates: Involves the derivation of rights from a superior
title for a period of time that is certain/capable of being ascertained. Enjoyment of
such rights in exchange for specific conditions including, but not limited to, the
payment of rent. A right to use and enjoy land exclusively as the owner for a
stated period of time. Also subject to a superior title. Can be categorised as:
○ Estate for years (renewable): this is the most common type. It specifies
the exact duration and has an exact termination date.
○ Periodic tenancy: continues for successive periods until either party gives
proper notice of its intent to terminate at the end of one/more subsequent
periods (e.g. rent).
○ Short-term lease: defined by the Land Act as one made for a term of 2
years or less without an option of renewal (section 58 of Land Act).
○ Future lease: one made for a term to begin at a future date and such a
future date not being later than 21 years after the date of execution.
○ Tenancy at will: created when a landlord consents to the possession of
property by another person but without any agreement as to the payment
of rent/duration of the tenancy.
○ Tenancy at sufferance: one who remains at the leased property after
termination of a lease (this is allowed by the lessor). A tenancy at
 sufferance comes into existence where a tenant holds possession of the
property without the consent/knowledge of the land after the termination of
a valid lease.
● Covenants implied in leases (on the part of the lessor - section 65 of the Land
Act):
○ Quiet possession and enjoy the land without the lessor’s interruption as
long as the lessee continues to observe the covenants and conditions of
the lease
○ Not to use/permit any adjoining/neighbouring land that the lessor owns or
leases that would in any way render the leased land or any buildings on
the leased land unfit or materially less fit for any purpose for which they
may be used,
○ Keep the common areas in a proper state of repair
○ Pay all rates, taxes, dues and other outgoings in respect of land unless
otherwise specified in the lease
○ The lessor is empowered to enter the leased land/premises, at a
reasonable time, for inspection/making repairs
○ The lessor can also issue a notice of termination where any rent remains
unpaid for a month after the due date/where the lessee has failed to
observe the lease conditions for a period of 1 month.
● Covenants implied in leases (on the part of the lessee - section 66 of the Land
Act):
○ Pay rent as specified
○ Use the land sustainably and in line with the terms of the lease
○ Keep the leased buildings in a reasonable state of affairs
○ Return the land and buildings in the same condition as they were when
the term of the lease began
○ Keep all boundary marks in repair (extent of the interest in landholding).

*Where a covenant requires the lessee to obtain the consent of the lessor before
engaging in any act, the lessor is not required to unreasonably withhold consent to the
taking of such an action.

Charges

● Charges: These are interests in land that operate as a form of security for the
payment of a debt or performance of an obligation. They are usually entered into
in favour of financial institutions (see land management for more details).
 Derivative or analogous rights - easements, profit a prendre, licenses

● Derivative/Analogous Rights: These are rights or interests in land that do not

entitle the holder to the possession of land. They are non-possessory rights.
There are 3 types: easements, profit a prendre and license.
○ Easement: a property right by a person/group of persons to use the land
of another for a special purpose not inconsistent with the general property
(section 138 of Land Act). Examples are rights of way across another’s
land, public utility, telephones, pipelines etc. Features include:
■ Limited use/enjoyment of land
■ Protection against 3rd party interference
■ Not subject to the will of the possessor of land
■ Not a normal incident of the possession of any land possessed by
the land owner of the interest
■ Capable of creation by conveyance

*The dominant tenement benefits from the easement while the servient tenement is
burdened by it.

● Profit à prendre: It is a right to the use of another’s land by removing a portion of

the soil/its products. It developed where people could collect seaweed for use as
fertiliser on one’s land.
● Licenses: a right derived from a permission to use the licensor’s land. It protects
one from being a trespasser. The licensor may revoke the license at will but there
are instances in which the licensor may not reserve the right to revoke the
license.

Adverse Possession

● Adverse possession: it is a common law doctrine. It is a possession inconsistent

with the title of the owner (denial of the owner’s title in one form or another).
● The ELC outlined in Virginia Wanjiku Mwangi v David Mwangi Jotham
Kamau (2013), the following conditions for adverse possession.
○ Open and notorious use of property - The use must be visible and
apparent as to give notice to the legal owner that someone may assert a
claim to his or her land.
■ Virginia Wanjiku Mwangi v David Mwangi Jotham Kamau- if the
legal owner has knowledge or it is otherwise visible to them this
element is met.
○ Continuous use of property - The adverse party must possess the land for
an uninterrupted period of 12 years.
■ Joseph Gachumi Kiritu v Lawrence Munyambu Kabura: you cannot
sleep on your rights and be indolent then expect equity as a shield.
The law acknowledges that legal proceedings are a form of
asserting rights against the adverse possessor and therefore equity
will prevail.
○ Exclusive use of property - The land in question must be used to the
exclusion of the legal owner.
■ In Johnson Kinyua v Simon Gitura Rimuri, it was held that a
claimant could not be entitled to more than the parcel he had
exclusive control of, and in this case, it is eight acres only.
○ Actual possession of property - this requirement is met if the adverse party
physically uses the land as a property owner would. The action of the
adverse party must change the state of the land - it may not be merely
constructive.
■ Wabala and another v Okumu- established that occupation must be
long use not by violence, stealth or permission.
■ Buckinghamshire CC v Moran- enclosure of land was deemed to be
the ‘strongest possible evidence of adverse possession.
○ Non- permissive, hostile or adverse use of the property - The adverse
party must use or enter the land without permission.
■ Possession must be adverse to that of registered proprietors.
 ■ Possession is hostile if it is open, without right, without force or
fraud and exclusive.
● Policy rationales for adverse possession: the acquisition of property in land
through adverse possession is very contentious. Policy rationales include:
○ Limitation of actions rationale - Mtana Lewa v Kahindi Ngala Mwagandi
○ Administrative rationale
○ Personhood rationale
○ Development rationale

*These rationales are utilitarian in nature. Adverse Possession – Squatters

Title | Blog, Civil Appeal 56 of 2014

Condominiums and other common interest communities

● Condominiums: Each owner holds a fee simple title to an individual unit (usually
in a multi-story building), and also owns an undivided interest in the common
area as a tenant in common with other owners.
○ It is a form of vertical ownership of land.
○ The ‘individual interest’ is basically a cube of air: the airspace enclosed by
the walls, floor and ceiling of the dwelling. The building itself, land under
the building, recreational facilities and parking lots are considered a
common area.

*Timeshare is a variant of the condominium- used for vacation purposes. Ownership of

the unit is usually divided into multiple periods of time (e.g. one week each year) during
which each owner has the rights to exclusive occupancy.

● Cooperatives: Allowed the division of ownership of multi-story buildings, which

were in use before condos. The residents owned a corporation, which in turn
owned the building and the facilities as a whole.

Co-ownership - joint tenancy, tenancy in common, tenancy in entirety

● Co-ownership: This arises where two or more persons are entitled to the
simultaneous enjoyment of the same piece of land. The types of concurrent
ownership are: joint tenancy, tenancy in common and tenancy by the entirety.
● Joint tenancy: this is a form of concurrent ownership of land where 2+ persons
each possess land simultaneously and have an undivided interest in the land
 under which upon the death of one owner, it is transferred to the surviving
owner/owners (section 2 of the Land Act).
○ An equal quantum of rights exists in the ownership.
○ No one possesses a separate or divisible share in the property and,
therefore, no one has an exclusive entitlement to any part of the property.
○ The principle features of a joint tenancy is the right of survivorship (jus
accrescendi) and the four unities: possession, interests, time, title.
● Tenancy in common: A form of concurrent ownership of land in which 2+ persons
possess the land simultaneously where each person holds an individual,
undivided interest in the property and each party has the right to alienate/transfer
their interest (section 2 of Land Act).
○ You can stake out the percentage of each individual holding in tenancy in
common (and unlike joint tenancy).
○ Each tenant in common has a distinct fixed share in property not yet
divided among the co-tenants (you can transfer your percentage of land
but not the percentage of land held by other tenants).
○ No jus accrescendi as the share of each tenant is fixed once and for all
and not affected by death of one of his fellow (the estates/heirs can take
tenancy/interest in the deceased’s land; also the deceased’s land can
pass on to their heirs).
○ If a tenant in common dies, his interest passes under his will or intestacy.

*The only essential unity in tenancy in common is the unity of possession. They hold
property individually in undivided interests. Unity of interests can vary because 1 person
could hold more land than others. Unity of title (different instruments can be used to
acquire land).

● Tenancy by the entirety: this is a special form of co--ownership between a

husband and wife. At CL, husband and wife are viewed as one and so they are
viewed to hold property as a unity.
○ The surviving spouse is entitled to the whole of property in question.
○ This tenancy is indestructible and cannot be severed during coverture and
may not be defeated by a conveyance by one spouse to a third.
○ Kenyan law does not provide for this ownership but it requires spousal
consent before the lease/charge/transfer of property, otherwise it is void.

Week 10: Matrimonial Property Rights

● Matrimonial Property Rights
● Evolution of matrimonial property rights in Kenya
● Gender equity principles
● Division of matrimonial property

Matrimonial Property Rights

● Matrimonial property here refers to property acquired by either of the spouses or
jointly before or during marriage to be owned or used in the marriage.
● Most matrimonial property rights disputes arise upon the dissolution of marriage.
However, they can arise in different circumstances.
○ They could arise where one spouse has contributed financially towards
the acquisition of property and the other did not contribute financially or at
all.
○ Sometimes, one spouse may be registered as the owner, and the other
one only spends money or time making improvements on the property,
among a variety of other circumstances.
○ Other times, both spouses may be registered jointly as wonders but with
varying proportions of contribution.

Evolution of matrimonial property rights in Kenya

● Doctrine of coverture - man and woman are one
● Common law husband - head of family, power over his wife’s person and power
over her property.
● R v Smith (1915) - husbands kill their wives, take their property and marry
another woman (and do the same).
● Married Women Property Act (1882)
○ Section 17: does not look at non-financial contributions (non-pecuniary)
○ BOP on women to prove financial contribution is unfair because it is
difficult to prove
● Kenyan courts adopted section 17 of MWPA.
○ Kivuitu v Kiviutu - 50/50
○ Kamore v Kamore - proportions do not matter
○ Nderitu v Nderitu - wife must bring evidence to show contribution
○ Gissing v Gissing & Pettit v Pettit
○ I v I (1971)- judge recognised the MWPA’s application in Kenya
● Matrimonial Property Act (2013) replaced MWPA (1882)

Gender equity principles

● See the Law of Succession Act, Matrimonial Property Act and related laws to see
if they confirm to the principle of gender equity.
○ Article 2(6): International law’s application to Kenya
○ Article 45: Family
○ Article 40: Property rights
○ Article 27: Equality and freedom from discrimination
○ Article 68: Legislation on land
○ Section 4 of the Matrimonial Property Act: Equal status of spouses
○ Section 7 of the Matrimonial Property Act: Ownership of matrimonial
property (entitled to matrimonial property according to his/her contribution)
○ Section 10 of the Matrimonial Property Act: Customary law (considered in
the context of the division of matrimonial property).
○ Section 4(2) of the Land Act: Guiding values and principles
○ Section 9(3) of the Land Act: Conversion of land (spousal consent)
○ Section 91(3) of the Land Registration Act: Meaning and incidents of co-
tenancies (joint tenancy for spouses)
○ Section 93 of the Land Registration Act: Co-ownership and other
relationships between spouses
○ Section 3(2) of the Marriage Act: Meaning of marriage (equal rights and
obligations before, during and after marriage)

Division of matrimonial property

○ Section 7 of the Matrimonial Property Act: Ownership of matrimonial
property (entitled to matrimonial property according to his/her contribution)
○ Section 91(3) of the Land Registration Act: Meaning and incidents of co-
tenancies (joint tenancy for spouses)
https://su-
plus.strathmore.edu/bitstream/handle/11071/5226/The%20Division%20of%20matrimoni
al%20property%20in%20Kenya%20.pdf?sequence=1 - pg 34 (history of matrimonial
property onwards until division of matrimonial property)

Week 11: Management of Land in Kenya

● Management of public land - allocation of public land- forests, wetlands, minerals
and mineral oil, challenges
● Management of private land - compulsory acquisition of private land, contracts
over land, transfers, transmission, charges, leases, minimum and maximum
holding of private land
● Management of community land
● Republic of Kenya, Sessional paper no.3 of 2009 on National Land Policy, 2009.

Management of public land - allocation of public land- forests, wetlands, minerals

and mineral oil, challenges

● Forms of tenure answers the tripartite question of who holds what interests and
in what land.
● The COK of Kenya gives a broad framework of who hold, by classifying land into
public land, private land and community land.
● Public land is therefore a form of tenure.
● How public land is held can be changed through conversion of tenure (not
conversion of use).
○ Conversion of Land is covered in section 9 of the Land Act.
○ According to this section, public land may be converted to private land by
alienation. Adversely, private land can be converted into public land by
compulsory acquisition, reversion of leasehold interest to government after
the expiry of a lease, transfers or surrender.
● Public land is defined in article 62 of the Constitution.
● Management of public land on behalf of the county and national government is
done by the National Land Commission. The Commission’s work is laid out in
section 8 of the Land Act. These include:
○ Identifying land, preparing and keeping a database of all public land which
shall be georeferenced and authenticated by the statutory body
responsible for survey.
○ Evaluating all parcels of public land based on land capability classification,
land resources mapping consideration, overall potential for use and
resource evaluation data for land use planning.
 ○ Sharing data with the public and relevant institutions in order to discharge
their respect function and powers under this Act.
● The guidelines in management of land are spelled out in section 10 of the Land
Act.
○ The commission shall prescribe guidelines for the management of public
lands by all public agencies, statutory bodies and state corporations in
actual occupation or use of public land. These bodies include- KWS,
Kenya Forest Service, WRMA, Kenya Agricultural Research Institute,
Ministry of Environment and mineral resources etc.
○ These guidelines shall indicate the management priorities and operational
principles for the management of public land resources for identified
areas.
○ In the discharge of their functions, the state officers and public officers in
land management and administration shall be guided by the values and
principles in article 10 of the Constitution.
● Ecologically sensitive public lands are mentioned in section 11 of the Land Act.
○ The commission shall take appropriate action to maintain public land that
has endangered or endemic species of flora and fauna, critical habitats or
protected areas.
○ The commission shall identify ecologically sensitive areas that are within
public lands, and demarcate or take any other appropriate action on those
areas and prevent environmental degradation and climate change.
○ The commission shall consult existing institutions such as the Ministry of
Water, Agriculture and Environment in dealing with conservation.
● Rules of allocation of public lands are outlined in section 12 of the Land Act.
● Lessee preemptive rights to allocation to public land are highlighted in section 13
of the Land Act.
○ Where any land reverts back to the National or county government after
expiry of the leasehold tenure, the NLC shall offer to the immediate past
holder of the leasehold interest preemptive rights to allocation of the land
provided that such a lessee is a Kenyan citizen and that the land is not
required by the national or county government for public purposes.
● Notification requirements applicable to allocation of public land are outlined in
section 14 of the Land Act.
● Reservation of public land is highlighted in section 15 of the Land Act & article 66
of the Constitution.
● Placing of care, control and management of reserved public are mentioned in
section 16 of the Land Act.
● Conservation of Land based on natural resources are covered in section 17 of
the Land Act.
 ● Administration of public land is done by way of leases, licenses and agreements
for public land.

Leases
● A lease is a document creating an interest in land for a fixed period of certain
duration, usually but not necessarily in consideration for a payment of rent.
● The closest concept of absolute ownership of land is offered by the legal
freehold.
● Leasehold ownership provides a mechanism by which a freehold owner can
grant another person the right to occupy and use his land. Such right is usually
granted in return for a payment of rent. The person who grants a lease becomes
the landlord and the person who enjoys the leasehold interest is the tenant.
● The landlord retains his ownership subject to the rights of the tenant. His interest
is known as the freehold reversion.
● When the lease comes to an end, either through the passage of time or it is
forfeited for some reason, the full unencumbered freehold title to the property will
return to him.
● It is possible for a new leasehold interest to be carved out of existing leasehold.
Such a lease is described as a “sub-lease” whereas the lease between the first
lease is the “head-lease”.
● Leasehold interests are significant in commercial contexts, for example the
majority of shops in modern developments are granted a lease for their premises,
but also residentially, whether in private sector or public council housing.
● The essentials of a lease are:
○ a) That the premises are sufficiently defined
○ b) That the tenant has exclusive possession of the premises during the
term
○ c) That the requirements as to duration are satisfied
○ d) The proper formalities have been observed
License
● An owner may grant a person permission to enter and use his land. Such
permission is known as a license.
● A license is simply a permission which entitles a person to be physically present
on land owned by someone else. Without a license, such presence would be
actionable as a trespass.
● As stated in Thomas V Sorell: “a dispensation or licence properly passes no
interest, nor alters or transfers property in anything, but only makes an action
lawful, shich without it would have been unlawful.”
 ● The central distinction between a lease and a license is that a lease confers the
right to “exclusive possession” on the tenant, whereas a license does not confer
such a right on the licensee.
● The right to exclusive possession means the exclusive right to exclude all people
from the land, including the landlord who has granted the landlord.
● A licensee enjoys a mere permission to be present on the licensor’s land and has
no right to exclude the licensor. If the licensor enters the land without the
licensee’s permission he will not commit a trespass and there are no remedies
available to the licensee.
● Whether exclusive occupation has been granted provides a central test whether
right granted to occupy land is to be classified as a lease or a license.
● Another central distinction between leasehold and licenses interest is that only
leasehold interests are capable of existing as proprietary rights in land.
● A licence confers a personal right on the licensee as against the licensor. As
such a licence is incapable of enduring changes of ownership of the land, so that
if the owner/licensor transfers the property to a third person, that third person will
not be bound by the licence previously granted by the owner.

Management of private land - compulsory acquisition of private land, contracts

over land, transfers, transmission, charges, leases, minimum and maximum
holding of private land
Contracts over Land
● Read Part 5 of the Land Act for more info.
● Contracts over land are similar to ordinary contracts (substantially - they have an
offer, acceptance, intention etc).
○ You bargain with the seller over the value of land
○ Property, liability and inalienability rules: Parties agree with minimal state
intervention
○ See also the economic theory of property
● Contracts over land must be in writing, signed by all the parties and signature of
each party* signing attested by a witness who was present when the contract
was signed by such a party.
○ Evidentiary purposes used to help resolve future disputes
○ See section 3(3) of the Law of Contract Act
○ See Section 38(1) of the Land Act: speaks to regaining possession of land
after concluding contract of sale of land
■ See also Section 38(2) of the Land Act: speaks to the sale of land
through public auction (no need for writing - fall of the hammer)
○ See Section 97 of the Evidence Act
 ● Vendor’s right to rescind contract by reason of breach by purchaser is permitted
by section 39 of the Land Act.
○ Resuming possession of land peaceably.
○ Obtaining a court order for possession of land.
○ Vendor to serve purchaser a notice before regaining possession is
required according section 41 of the Land Act.
● Interest in land has not been passed at this point.
○ Rights against the whole world (in rem) are not available at this point to
the purchaser because they only have contractual/personal rights.

Transfers
● See section 43-48 of the Land Act
● Transfer is defined in section 2 of the Land Act. It includes a conveyance, an
assignment, a transfer of land, a transfer of lease or other instrument used in the
disposition of an interest in land.
○ Transfer is a voluntary arrangement - it is the passing of land from the
party to another by a voluntary act of the parties and not by operation of
the law and includes the instrument by which such passing is effected.
● Transfer is completed by the registration of the transferee (purchaser) as the
proprietor of land, lease or charge.
○ Transfer takes effect immediately according to section 44 of the Land Act.
○ Short-term leases do not transfer interests; the leases act as contracts
inter se.

Transmission
● This is the passing of land/a lease/a charge from 1 person to another by
operation of law on death or insolvency* or otherwise, and includes the
compulsory acquisition of land under any written law.
○ Interests are passed from one person to another due to death of a person
(heirs)
○ *Winding up or dissolution of companies (trustees in bankruptcy &
liquidator)
● Section 49 of the Land Act - transmission on death against a joint proprietor.
○ Section 50 - transmission on death of a sole proprietor in common
○ Section 51 - effect of transmission on death
○ Section 52 - transmission on bankruptcy
○ Section 53 - transmission upon company’s liquidation
○ Section 54 - transmission in other cases
*a will does not confound you property rights - the court must grant the probate of the
will according to section 50(3) of the Land Act
Leases
● See Part VI of Land Act and Part IV of Land Registration Act
● A lease is a document creating an interest in land for a fixed period or certain
duration, usually in consideration of the payment of rent.
○ This is also defined as a contract between 2 parties for the grant of a time
in land.
○ Lord Templemann explained in Prudential Assurance Co. Ltd v London
Residuary Board (1972) that a lease is a contract for exclusive possession
and profit of land for some determinate time.
● A lease creates, for a time of years, a leasehold relationship between a
grantor/landlord/lessor and a grantee/tenant/lessee.
○ Landlord gives tenant a term of years for a tenant to use but is not left
without property (in other words, the landlord remains with reversionary
interests - they can assign the rest of the years to somebody else or
assign the reversion interests to someone else).
● The right of exclusive possession under a lease is for a determinate term less
than that which the grantor has in the land (see section 63 of the Land Act).
● A leasehold interest in land can be sublet or assigned.
○ A sublease: you transfer some of the term of years or sublet a portion of
the land for the full term of years.
○ An assignment: you transfer the entire term of years.
● A sub-tenancy/sublease/underlease occurs when the tenant creates a new lease
out of his own tenancy (the head-lease) which must be for a period shorter than
the remaining period of the head-lease (see section 63 of the Land Act).
● An assignment occurs when the tenant or landlord transfers his entire interest in
the property to a new tenant/landlord as appropriate.
○ Each party can assign his interest in the land: the tenant, the remainder of
the lease and the landlord, the revision.
○ The landlord’s revision is the estate retained by the landlord.
● A license cannot be assigned unless coupled with an interest.
● A lease survives the parties.
● Essentials of a lease include:
○ A capable grantor and grantee
○ The commencement date of the lease must be certain
○ The duration of the lease must be certain or capable of being ascertained
at the beginning of the lease
○ A rent is usual and indicated in a lease
○ Defined premises
○ Exclusive possession
 Management of community land
● Community Land - answer the tripartite question posed by Okoth Ogendo
○ Historical background of community Land - Trust Land Act, Land Group
Representative Act.
● The Constitution vests community land on community on the basis of ethnicity,
culture or community of interest.
○ See article 63.
○ See also section 2, 4, 5, 6, 8 and 10 of the Community Land Act.
● Classes of holding community land:
○ As communal land
○ As family/clan land
○ As reserve land - for purposes such as farming, settlement, conservation,
cultural and heritage sites or urban development.
○ In any other category of land recognised under this Act or other written
law.
● Administration and management of land:
○ Each registered community to have a community assembly
○ Quorum for decision makings shall not be less than ⅔ of community
assembly
○ Community assembly to elect between 7 and 15 of its members to
constitute the Community Land Management Committee (CLMC)
■ Adult members
■ See Section 15 and 16 of Community Land Act

Week 12: Land Administration and Delivery of Services

● Institutional frameworks for land administration
● Land administration and delivery functions
● Administrative functions
● Adjudicative functions
● Castral functions
● Contemporary themes in land administration - land information management,
institutional overlaps jurisdictional challenges facing the ELC
● Gitwany Investments v Taj Mal Civil Suit 1114 of 2002
● Republic v National Land Commission & Tropical Treasure Ltd Ex-Parte
Krystalline Salt Ltd (2015) eKLR

Introduction
● Process by which information on the ownership, value and use of and is
determined, recorded and disseminated
● Land information comprises of:
○ Textual records: defines the rights
○ Spatial records: defines the context in which the rights apply
● Aim is to:
○ Guarantee land records and security of tenure
○ Increase certainty in land transactions
○ Create economic development and social stability
● Land rights delivery is the process through which the institutional framework and
personnel are mobilised to ascertain and register land rights.
● Land adjudication is the process in which the rights and interests claimed by
persons are ascertained and recorded. The rights are then entered into a register
which becomes the source of land information.
● In Kenya, this process has necessitated democratisation because it was
previously only accessible to few privileged individuals.
○ This democratisation requires that all land rights holders are fully informed
and able to take part in the process
○ Land administration processes are insulated from political interference so
that land is appreciated as property and not a political service
● None of this has met the aspirations of Kenyans as problems in land
administration have manifested themselves in the social, economic and political
spheres e.g.
○ increased tenure insecurity
○ land conflicts
○ squatting
○ neglect of traditional and governance structures in law and policy also
complicates land administration as the informal and formal land tenure
frameworks continue to operate side by side
● To address some of these problems people (especially those in informal sectors)
have resorted to extra-legal land administration processes to secure access to
land.
● These problems have necessitated the need for a national land policy to
streamline land administration systems and functions.

Institutional frameworks for land administration

● Legal basis is the Constitution of Kenya (2010) and the laws enacted pursuant to
the provisions therein (Chapter 5).
● NLP of 2009 proposed a complete overhaul of existing institutions because they
were:
 ○ Inefficient
○ Bureaucratic: too much legislation which made the land administration
structure too complex leading to inefficiency
○ Inequitable
○ Highly centralised
○ Complex and exceedingly bureaucratic
○ Lacked accountability
○ Did not engender public participation
● These institutions resulted in corruption and exclusion of the public in the
administration of land.
● The new institutions would be guided by:
○ Devolution of power
○ Stakeholder participation
○ Operational autonomy
○ Access to justice and appropriate enforcement mechanisms
● Proposed by the Njonjo Land Commission 1 after Kenyans raised concerns with
the then existing land institutional frameworks as they were:
○ Centralised
○ Concentrated too much power in the President and the Commissioner of
Lands particularly in the allocation of land
● Independence and accountability was at the heart of the formation of this
commission and therefore the NLP recommended that the NLC be given
sufficient autonomy, independence but be made accountable to the people.
○ To achieve this, the NLC consists of broad representation, expertise,
integrity and equity being observed in the selection of commissioners
○ The National Land Commission Act was enacted to grant operational
autonomy to the NLC and accountability to Parliament.
○ The Commission would also be required to table policy directions in
Parliament and facilitate public participation and the application of
democratic principles.
● The functions of the Commission are found under article 67(2) of the Constitution
at Chapter 5. The Commission may also perform any other functions as
prescribed by national legislation.
● The NLC Act makes further provisions on additional functions, qualifications and
procedures for membership to the Commission and gives effect to the objects
and principles of devolved government in administration and management of
land.
● Functions and roles of the Commission at Section 5(2) of the Act.
● The Commission is also charged with the mandate of compulsory acquisition of
interests in land on behalf of the national and county governments with the
procedure found outlined under Part VII of the Land Act
● The Commission exercises an adjudicative function in undertaking the review of
dispositions of public land as provided under article 68(c) (v) of the Constitution.
● The Commission may direct the revocation of land title where it is found to have
been illegally acquired and may make orders for correction in the case of an
irregular allocation.
● Before review of titles is done, notice must be issued to all interested parties.
● R v NLC and Tropical Treasure Limited Ex-Parte Krystalline Salt Limited
○ High Court dealt with a matter where the Commission had issued a notice
in the newspaper for the review of certain titles
○ Complainant alleged that the notice was not proper because it did not
have the required details
○ Court quashed the notice on the finding that the notice was not sufficient:
“an accused person is entitled to know the allegations, the evidence in
support of the allegations and ought to be given an opportunity to rebut
the allegations before an impartial tribunal…the notice in the newspapers
did not have the name of the complainant and neither did it disclose the
complaint against the Applicants titles. In order for the applicant to prepare
its defence it ought to have been served with the particulars of the
allegations by the interested party and informed of the manner in which it
allegedly obtained grants to public land in an illegal or improper manner”
● To the Court, the newspaper advertisement could not be considered notice in
accordance with the provisions of the Act but merely information to the public
about the intended review.
● In managing public land, the Commission is required to look at historical land
injustices and help redress them and recommend to Parliament appropriate
legislation to provide for the adjudication of claims arising out of these injustices.
This has proven difficult due to the ownership of land changing so much over the
years making the identification of beneficiaries and perpetrators difficult.
● The Land Laws Amendment Act 2016 provides some remedies which the
Commission may recommend:
○ Restitution
○ Compensation
○ Restore the land
○ Resettlement on alternative land
○ Rehabilitation through provision of social infrastructure
○ Affirmative action programmes for marginalised groups and communities
○ Creation of wayleaves and easements
 ○ Order for revocation and reallocation of land
● The Commission is to assist the National and County Governments in settlement
schemes to take care of the needs of groups such as squatters and displaced
persons.
● Before the Commission establishes such settlement schemes. Certain
requirements have to be met:
○ Must be established that the acquisition is being done for a public purpose
or in the interest of the public
○ Where any plant or machinery is attached to land, a person interested in
the plant or machinery may serve on the commission a notice in writing
that such person desires to sever and remove the plant or machinery.
● Before the Commission allocates land for settlement schemes, it is required that
the land be surveyed and planned and thereafter allocated in accordance with
article 10, article 60(1) of the Constitution and any other requirements of natural
justice. These provisions are meant to deal with the problems of the past such as
corruption in allocation of land, lack of transparency in identifying beneficiaries
and political interference in the process.
● Any land acquired through a settlement scheme is not transferable except
through a process of succession.
● The Constitution requires the Commission to assess tax on land and premiums
on immovable property. Taxation on land is meant to achieve efficiency in land
administration and optimal land use.
● According to the NLP, a clear fiscal framework for land management can:
○ Generate public revenue
○ Provide a stable fund for the acquisition of land for banking
○ Service land
○ Facilitate efficient utilization of land
○ Provide incentives for appropriate land uses and discourage speculation
● To carry out its functions, the Commission is bestowed with all the powers
necessary for the execution of its functions under the Constitution, the NLC Act
and any other written law.
● In exercising its powers and functions, the Commission can inform itself in such
manner as it may consider necessary, receive written or oral statements, and it is
not bound by the strict rules of evidence.
● By parliament divesting some of the oversight duties from the NLC and back to
the Ministry, they are likely to take us back to a highly bureaucratised, corrupt,
inefficient and unsustainable land management and administration system

County Land Management Boards

 ● It is required to ensure reasonable access to its services in all parts of the
country and establish committees and county offices for this purpose in
consultation and cooperation with the national and county governments
● Section 18 of the NLC Act has provisions for the establishment of such which is
an attempt at devolving the functions of the Commission to the counties. This
section has been repealed by the Land Laws Amendment Act.

Environment and Land Court

● Kenya has not had an effective dispute resolution framework and citizens have
recorded their dissatisfaction with such (see the Njonjo Land Commission) as
they are characterised by:
○ Delays
○ Incompetence
○ Corruption
○ Nepotism
○ Political interference and overlap of roles and functions leading to
confusion, conflict and unnecessary bureaucracy
● The Njonjo Land Commission urged the government to establish a dispute
resolution mechanism that is independent, accountable and democratic and that
will have appropriate and inclusive institutions with clear operational procedures
and record keeping for decision making
● This necessitated the establishment of superior court with the status of the High
Court for the purpose of hearing and determining disputes relating to the
environment and the use and occupation of and title to land
● The ELC Act was enacted to establish the jurisdiction of this court
● The Overriding Objective of this Act is to ensure the court is able to facilitate the
resolution of disputes in a just, expeditious, proportionate and accessible
manner.
● The court has original and appellate jurisdiction
● See section 13(2) of the ELC Act and articles 42, 69 and 70 of the Constitution
for the powers of the ELC
● In exercising its jurisdiction, the ELC is guided by the principles of land policy,
sustainable development and judicial authority and may adopt alternative dispute
resolution mechanisms on its own motion or at the request of the parties.

The Ministry of Lands and Physical Planning

● Was previously not easily accessible to members of the public and had become
a preserve of a few individuals who had access to senior officials.
● It was common for documents to be forged to facilitate land grabbing
● Records at the registry were not safe as they were frequently tampered with by
corrupt officials who would collude with individuals to perpetuate illegal land
deals
● Loopholes in the system were manipulated by a few people to the detriment of
the public leading to tenure insecurity and other land illegalities.
● As a result of all this, the public lost faith in the land administration systems
● The current Ministry has the following functions:
○ Land policy management
○ Physical planning
○ Land transactions
○ Survey and mapping
○ Land adjudication
○ Settlement matters
○ Rural settlement planning
○ Land reclamation
○ National spatial data infrastructure
○ Land registration
○ Land and property valuation services
○ Administration of public land
● The Ministry is made up of three departments:
○ Department of Lands further divided into:
■ Registration: Busiest sections in the Ministry and does the
following:
● Registration of documents for all land transactions under the
various land registration statues
● Issuance of searches
● Preparation of provisional and replacement titles as provided
by law
● Assessment and stamp of instruments with the requisite
stamp duty
● Inspection and control of duty franking machines
■ Administration
■ Valuation
○ Department of Physical Planning: aims at achieving a balanced regional
development over the national geographic space for the benefit and
welfare of all. There are national and county planning offices. The National
office has four broad functions:
■ Policy formulation of land use
■ Capacity building for counties
■ Coordination of the planning function
 ■ Research on physical planning matters
○ While the County office has the following functions:
■ Preparation of county spatial plans
■ Preparation of spatial plans for undesignated urban areas
■ Coordinating planning within designated urban, cities and municipal
areas
■ Implementation of planning policies strategies and standards
○ Department of Survey is tasked with:
■ establishing a National Geodetic control network that covers the
whole country to facilitate other surveys and research
■ producing and maintaining plans of property boundaries in support
of land registration and to ensure guarantee and security of land
tenure
■ preparing and maintaining Registry Index Maps and Preliminary
Index Diagrams to support land registration and ensure security of
land tenure
■ produce and continuously update national topographic basic maps
for the whole country
■ surveying, inspecting and maintaining national boundaries
● It is evident that some of the functions vested in the Ministry are also vested in
the NLC thus creating a source of conflict.

Land Administration and Delivery Functions

● Article 68 of the Constitution mandates the Parliament to:
○ Undertake the revision, consolidation and rationalization of existing land
laws
○ Revise sectoral land use laws in accordance with the principles of land
policy
○ Enact laws prescribing the minimum and maximum land holding acreages
for private land
○ Regulating the conversion of land from one category to another
○ Regulating the recognition and protection of matrimonial property and in
particular the matrimonial home during and on the termination of marriage
○ Protection, conservation and provision of access to all public lands
● The LRA was enacted by parliament to discharge this mandate, to revise,
consolidate and rationalise the registration of titles to land and to give effect to
the principles and objectives of the devolved government in land registration.
● The Act applies to the registration of interest in all three tenure typologies
 ● The Act does not affect or prohibit the system of registration under any law
relating to mining, petroleum, geo-thermal energy or any other land based
resources in respect of public land.

Administrative functions
● Encompasses the procedures and processes carried out in relation to the land
transactions.

i. Registration
● The LRA empowers the NLC to establish registration units in consultation with
the national and county governments for purposes of referencing land parcels
● The units must be established at the county level to ensure access to land
administration and registration services.
● Each registration unit must also have a land registry where the following are to
be kept:
○ Land register
○ Cadastral map
○ Parcel files
○ Plans
○ Index of proprietors
○ Register and file of powers of attorney
● Each Registration unit is also required to have a community land register
maintained in line with the Community Land Act however this register does not
apply to unregistered community land held in trust by the county governments for
the communities.
● The registrar is mandated to maintain any document required to be kept under
the Act in a manner that is secure, accessible and reliable
● Registration of a person as a proprietor of land vests in that person the absolute
ownership of the land together with all the rights and privileges subject to leases,
charges, encumbrances and overriding interests
● Only one certificate may be issued per parcel

ii. Transfers
● Means the passing of a disposition from one party to another by an act of the
parties and not by operation of the law. Also refers to the instrument by which
such passing is affected. May be made by a proprietor to any person w/ or w/out
consideration
● Transfer process is completed by filing the instrument and registering the
transferee as the proprietor
 ● Takes effect immediately and can’t be said to take effect at a later date based on
the occurrence of some future event. Any condition or limitation to that effect is
considered void
● Transfer may not stipulate the manner in which the land is to be used

Adjudicative functions
● Relates to the determination of contested issues in the land administration
process; done mostly by the registrar who entertains applications for rectification
or applications for restraints on disposition.

Rectification of the register and indemnity

● Rectification = restoration of the correct position by removing errors, omissions,
mistakes or fraudulent activities on the register
● Can be done by the court or the Registrar
● Is done so with the consent of the parties
● Court may order rectification of the register by directing cancellation or
amendment of any registration where it is satisfied that such was entered by
mistake or fraud
● Rectification may not affect the title of a lease or charge for valuable
consideration w/out knowledge of the omission fraud or mistake in consequence
of which the rectification is being sought
● Any person who suffers damage due to any rectification of the register or any
error in a copy of or extract from the register is entitled to an indemnity.
● Fraudulent and negligent contribution/cause of the damage is not indemnified
● The principle of sanctity of title on first registration occasioned many injustices
and was one of the many issues in land reform debates. Rectification and
indemnity seek to amend problems occasioned from the unjust practices of the
yesteryears

Week 13: Land Use and Land Use Planning

● Land use principles
● Land use planning
● Legal and policy frameworks on land use planning
● Land use planning tools
● Aligning land use and land tenure

Introduction
● Land is a finite resource upon which most (if not all) human activities are carried
out
● Competing claims and interests are thus bound to arise over land ownership and
use which is an issue further worsened by increasing demand for land due to
constantly growing populations
● This puts pressure on land and leads to its deterioration
● Incidents of encroachment on agricultural lands for human settlements is
common nowadays
● Climate changes are attributable to anthropogenic activities on land which may
lead to the obliteration of natural resources
● Effective use and management of land warrants proper planning which balances
the need to ensure that whatever use the land is put to is sustainable and does
not leave the land in a worse state than before.
○ To do so would require the adoptions of regulations to govern human
conduct in relation to land use. The adoption of these would mean that
landowners do not have absolute land rights
● Land use is subject to regulations prepared by relevant planning authorities
● Land use planning represents the interplay between public and private interests
in relation to land whereby regulations often take the form of laws adopted by
planning authorities or by citizens in their associations.

Land use
● It refers to the anthropogenic activities or processes that take place on land; any
human activity on the physical solum constitutes land use
● Such activities are weighed based on their impact on the society, the economy
and the environment
● At common law the use of land was defined in a prohibitory fashion giving rise to
the doctrine of waste
○ Waste law refers to the changes that a tenant can make to the estate that
he occupies and is categorised into 4:
■ Ameliorating waste: acts that improve the character of the land
■ Permissive waste: acts of omissions that are detrimental to land
quality
■ Voluntary waste: acts of commission which are injurious to the
quality of land
■ Equitable waste: acts of destruction on land
○ The crux of waste law is the regulation of the actions that a tenant may
commit or not commit over land
○ Those contracting over land may thus define the limits to which the land
may be modified in terms of the activities which can be undertaken on the
land thus incentivising tenants to maximise value from land during their
tenancy.
 Principles of land use in Kenya
● Outlined in the constitution at article 60 to ensure that land is to be held, used
and managed in a manner that is equitable, sufficient, productive and
sustainable.

i. Sustainability
● Means development that meets the needs of the present without compromising
the ability of future generations to meet their own needs
● Key principle in land management to ensure that developmental activities
happening on land are beneficial in the long term
● Such development is sustainable if it has a positive impact on society, economy
and the environment
● Most land use activities aim at meeting the economic needs of persons and
usually results in a negative impact on the society or the environment and is
therefore unsustainable
● It is imperative that a sustainable attitude towards land use is developed and
adopted to ensure that land use activities take place in a sustainable manner.
● Sustainability is particularly important in relation to extractive activities which
have potentially high chances of inflicting harm on land and the wider
environment (Minors Oposa v Secretary of the Department of Environmental and
Natural Resources: courts contended that activities which are harmful the
environment are not sustainable)
● Exploitation of forests and water pose the same dangers
● Unsustainable utilisation of resources on land may have negative implications
and lead to conflicts
● The United Nations Sustainable Development Summit in 2015 adopted a set of
17 Sustainable Development Goals which take cognizance of the need to
conserve and restore the use of land to further the broaden goal of mitigating the
impact of climate change.

ii. Productivity
● Seeks to ensure that land and land based resources are put to maximum use to
meet the ever-increasing demands for land
● Many human activities are hinged on land and its degradation translated to
decreased productivity
● Competing land uses further result in overuse of land and loss of productivity
● Land use planning becomes a vital tool in ensuring that the available land retains
its productivity potential to meet the needs of the population
 ● LUP is also important in defining the physical location where different activities
are to be practised in order to ensure maximum productivity
○ Also proscribes division of land into uneconomic units that are
unproductive
● Productivity can be achieved by:
○ Securing land rights
○ Providing support services to farmers
○ Land taxation and prescribing maximum and minimum acreage for private
land to discourage absentee land holding

iii. Efficiency

● Means the greatest return on capital and labour invested from the area available
● Land used efficiently ensures that all externalities are minimised or internalised
○ Can be achieved by matching different land uses with the areas that will
yield the greatest benefits at the least cost and it is therefore important
that the uses the land is put to, befit that land.
● Efficiency in land use can also be achieved by land taxation and having efficient
dispute resolution mechanisms that ensure that land disputes do not impede on
dealings in land
● Putting a cap on land holding is also meant to ensure efficiency in land holding
with the Minimum and Maximum Land Holding Acreages Bill 2015 which to seeks
to put a limit on the quantum of land held by an individual
○ This is meant to remedy the numerous challenges that have arisen
regarding persons holding vast amounts of land which they do not put to
productive use
● Efficiency in land holding has also been implemented by having systems that are
transparent and cost-effective
● Development of vibrant land markets is hindered by inadequate land information,
political interference, bureaucratic inefficiencies, corruption, speculation, insecure
and unclear land tenure arrangements and the absence of innovative market
mechanisms
● Efficiency in land markets can be enhanced by:
○ Decentralising land registries
○ Facilitating allocation of serviced land for investment purposes
○ Facilitating and promoting land market operations particularly in
community land
○ Encouraging the development of new land markets by providing better
information about land transactions and regulating land markets to ensure
efficiency, equity and sustainability
iv. Equitable access to land
● It is important that the use to which land is put and the improvements made on
land reduce inequity and tackle poverty
● Ensures redistribution of land and does not bar access to land by certain groups
of persons (i.e. marginalised groups)
● Aims to eradicate gender discrimination in law, customs and practices related to
land and property in land
● Also requires improvements in standards of living so that people can easily
access housing, food and are guarantee income
● Also means equitable access to land for subsistence, commercial productivity,
settlement and the need to secure a sustainable balance between these uses.
● Also means that current landholding should provide intra- and inter- generational
equity i.e. land holding must benefit present and future generations

Land use planning

● It is the process by which a society, through established institutions, decides
where (within its territory) various socio-economic activities should take place.
● It is the art and science of controlling land use and the character and
arrangement of buildings, to achieve economy and secure convenience and
beauty.
● Public policy exercise that designates and regulates the use of land to improve a
community’s physical, economic and social efficiency and well-being.
● Requires mechanisms to be put in place to define the manner and place where
members of society are to practice activities to align competing land uses and to
ensure optimal land use.
● Without LUP, competing land uses are likely to cause harm.
○ Also reduces conflicts by ensuring land use is adaptable to the physical
and ecological conditions and that land is balanced in a manner that fulfils
all social, ecological and economic requirements.
● Ensures sustainable land use so that developments undertaken on land do not
have a negative effect.
● Identifies the long term uses that land can be put into to ensure maximum returns
in the long term
● Balances competing interests over land among various stakeholders ensuring
consensus building that promotes sustainability

Overview of different land uses

i. Forestry
● Large tracts of land covered with trees and undergrowth sometimes mixed with
pasture
● Forests exist all over the world however there has been a continued reduction of
forest cover in many parts of the world largely due to continued demands for land
for agriculture and human settlements
● In Kenya, 6.99% of the total land area is covered by forests constituting both
indigenous and plantation forests
● Benefits from forests include:
○ Source of timber
○ Genetic and biological resources
○ Grazing land for local communities
○ Protecting water catchment areas
○ Carbon sequestration
○ Preventing soil erosion
○ Act as carbon sinks (Kyoto Protocol promotes the need for forest
conservation due to their functions in carbon balancing through activities
such as afforestation/reforestation, deforestation and forest management)
● Massive campaigns have been undertaken to ensure the conservation of forests
as water catchment areas
● A majority of Kenyans rely on rain-fed agriculture, biomass (firewood) as a
source of energy, timber for construction, food and medicine from forest- dwelling
communities: all these activities are critically hinged on the existence of forests
thus grave consequences will be suffered if the forests aren’t sustained.
○ Communities have historically managed these forests using traditional
resource management institutions however colonialism disrupted the
arrangements that were in existence with the introduction of colonial laws
to govern forest resources
○ These laws were not in line with traditional forest governance systems i.e.
they were preventionist in nature and thus excluded communities from
forest management leaving the colonialists to exploit them for commercial
and export purposes
● The colonial government adopted strict legislative measures to base these
traditional communities from access the forest resources
● Currently, the Forest Conservation and Management Act is the legislative
instrument used to regulate the establishment, development and management of
forest resources for socio-economic development in the country
○ It also establishes the Kenya Forest Services as the embodiment of the
institutional framework
● Major threats to the forest ecosystems are:
○ Population growth
 ○ Limited co-ordination and landscape focus
○ Overexploitation of forest land
○ Increased wildlife activities
○ Inadequate involvement of communities and individuals
● The rate of deforestation is much higher than that of afforestation making it
difficult to attain the 10% forest cover
● It is difficult to determine which use of forests should take precedence over the
other such as in the Mau Forest Complex where various overlapping activities
take place (farming, human settlement, forest dwelling, water catchment)

ii. Agriculture
● Backbone of the Kenyan economy
● Contributes 25.3% to the GDP which means that over 80% of the population
derives their livelihood from agriculture
● Increased agricultural activities to meet the rising food demand continue to put
pressure on available land
● Encroachment into agricultural land reduces the amount of land available for
agriculture
● Over-reliance on rain-fed agriculture is another problem in light of climatic
changes that reduce the amount of rainfall thus agricultural production is going
down
● Failure of the government to invest in irrigation means that agriculture remains in
steady decline
● Poor agricultural practices such as growing maize in an area best suited to grow
sorghum (which also does well under extreme climatic conditions) contributes to
the dwindling rates of agriculture
● Government has also not adequately invested in the development of livestock
farming even though this is a sector with much potential
● Various policy recommendations have been made:
○ Increasing agricultural productivity and income esp. for small-holder
farmers
○ Emphasis on irrigation to reduce the overreliance on rain-fed agriculture
○ Encouraging diversification into non-traditional commodities and value
addition to reduce vulnerability
○ Enhancing food security and reducing the number of those suffering from
hunger = achievement of MDGs
○ Encouraging private-sector led development
○ Ensuring environmental sustainability
● The Land Control Act establishes the Land Control Board which regulates and
considered to be agricultural land
 ○ Can grant or deny consent to transact in land
○ Ensure that land is put to its most productive use and not subdivided into
smaller unproductive units
○ Pastoralism may destroy the land especially when large amounts of
livestock are put on land that does not consider the carrying capacity of
the land

iii. Mining
● Mining is the economic activity that involves the extraction of potentially usable,
non-renewable mineral resources from the land or sea without involving
agriculture, forestry or fisheries
● Kenyan mining focuses on fluorspar, diatomite, titanium on a large scale
● Small scale mining groups involved in extraction have been accused of not
complying with the environmental policies and guidelines
● Sand harvesting has a detrimental effect on the environment because it is not
regulated; quarrying leaves the land derelict; mining disrupts the way of life of
most communities; disrupts agricultural practices and leads to a likelihood of
conflicts where agricultural production reduces
● Land has been compulsorily acquired for the purpose of prospecting for oil and
gas
● EMCA provides a legal framework regarding the manner in which potential
adverse effects of mining can be addressed
● Mining activities undergo and EIA test

iv. Urbanisation
● High rates of urbanisation have led to the transformation of agricultural lands to
residential and commercial areas
● Introduction of devolved systems of governance is also causing urbanisation
within counties
● Land is important for the expansion of urban areas which in turn reduces the
amount of land available for agricultural use
● Availability of land attracts investors
● Growth of urban areas is also accompanied by a rise in population
● Such expansion in population warrants the adoption of land use planning to plan
on the limited amount of land
● Negative consequences of urbanisation are felt by the poor in urban areas. The
mushrooming of informal settlements in urban areas aims at accommodating the
housing needs of the poor
● Some of the environmental problems associated with informal settlements
include:
 ○ Unsatisfactory solid waste and litter disposal
○ Problems associated with sewerage
○ Inordinate pressure on land
○ Air pollution from industrial emissions
○ Urban blight
○ Water pollution
● Informal settlements necessarily give rise to wastage of land as they are
unplanned with structures and infrastructure established haphazardly and
exclude basic amenities
○ It is important that urbanisation happens within the context of planning to
avert the negative aspects of unplanned urbanisation and measures ought
to be taken to ensure that it does not take place at the expense of other
land uses such as agriculture

Land Use Planning Principles

● Outlined in the draft National Land Use Policy and includes:
○ Efficiency and ecological sustainability
○ Cultural integrity
○ Environmental conservation and preservation
○ Access to land use information
○ Conflict resolution and management
○ Efficient land use management
○ Gender equity
○ Sustainable land use
○ Effective regulation of land use practices
○ Good governance
● The draft NLUP was actuated by the fact that Kenya has faced challenges in its
LUP regime. These challenges include:
○ Functional disconnects between the plan preparatory authorities and
implementing agencies
○ Lack of appropriate technical and institutional capacity of local authorities
○ Inadequate human resource establishment in the ministry tasked with
physical planning
○ Absence of abroad based consultation and coordination of planning
proposals and regulations
● These challenges have resulted in glaring disconnects between the land use
plans that have been formulated and the reality of the way land is used
● The LUP principles have been formulated to address various land us concerns
which are:
 ○ The fact that economic development in the country does not proceed in a
uniform manner
○ The challenges of rapid urbanisation and population growth warranting the
development of policies to guide development
○ The fact that the plans formulated are not properly enforced resulting in
development happening in inappropriate locations

i. Sustainability
● Requires the recognition of the limitations of the biosphere and the need for a
balance of social, cultural and economic uses within these natural limitations
● LUP adopts an approach that ensure sustainability of these:
○ Social sustainability: ensure that LUP regulations are adopted by
authorities are acceptable to the populace and don’t result in social harm.
Also ensures there is equitable access to all and the use to which land is
put is socially acceptable
○ Economic sustainability: LUP approaches should not lead to undue
financial burden and must also ensure that the environment is conserved
in the long run. Also seeks to ensure that economic benefits derived from
land use are available for a long period of time and that real benefits are
gained
○ Environmental sustainability: LUP approaches should seek to maintain a
certain stock of natural resources above a certain quality threshold. LUP
also seeks to ensure that human activities on land are reversible
● LUP ensure effective management of this finite resource and that competing
interests over land are adequately taken care of LUP is vital in relation to
planning for agricultural purposes in ensuring that the land available is put to
good use and the AP does not suffer consequently
● Compliance with these guidelines ensures that the little land available benefits all
society and that there is minimisation of waste

ii. Participation
● To ensure social legitimacy of these plans it is important that the public
participate in the planning and implementation of the plans
○ Sam Odera and others v NEMA and EM Communications: construction of
a telecommunication base station without their consent
● It is important so as to ensure that the policies enacted are in touch with local
situations
● The post-independence period has seen the involvement of various stakeholders
including foreign experts, members of the public and local planners
 ● The LUP process in Kenya has suffered because of inadequate local expertise in
the area and the involvement of foreign experts hasn’t helped much because
they are out of touch with our social realities
● Embraces both substantive and procedural aspects:
○ Procedural: provision of more opportunities for ordinary members of the
public to be involved in decision making
○ Substantive: transformation of society an altering the balance between the
governed and the governors
● Planning is more effective if it is provided for statutorily because then the relevant
authorities will have a statutory duty to ensure that the views of members of the
public are taken into account
● Participation provides acceptability and authenticity of the plans to the public
● Also builds trust between the public and planning authorities Important since the
planning activities are funded by taxpayers and they should know where their
money is going

iii. Accountability and proper enforcement

● Failure of LUP in Kenya is largely attributable to the fact that there lacks proper
enforcement of the formulated plans
● Planning authorities are usually compromised in order to ensure that certain
persons do not follow the prescriptions in the LUPs which affects planning
severely
● Members of the public are slow to comply with the plans
● It is imperative to take cognizance of the need to hold the stakeholders
accountable an put in place mechanisms to do so ensuring that they comply with
LUPs

Week 14: Contemporary issues in Property Law

● Land grabbing
● Land and collateral lending
● Land and forced evictions
● Land and ethnic clashes
● Transitional justice and the land question
● Political goodwill in implementing land reforms

Land grabbing
● See the Ndung’u Report & Commission
Land and collateral lending
 Land and ethnic clashes
● The TJRC report
The Land Question

● The National Land Policy identifies three aspects in regard to this: economic,
social and political.

Political
 ● Continuity or modification of the policies adopted by the independence
government from the colonial government. This was to protect the property of the
settlers who chose to remain in the country. The main objective of the settlers
was to ensure entrenchment of the settler economy while subjugating the African
economy through unfriendly legal and administrative mechanisms.
● Inequalities were evident from the disparities in land holding and exploitative
arrangements introduced by colonial government.

Legal
● Duality in the legal regime led to customary property being considered as inferior
to statutory land systems.
● Systems of land tenure based on English property law and a neglected
customary law.
● Large holdings of high potential land, on the other hand, highly degraded and
fragmented smallholdings.
● Autonomous and producer controlled legal and administrative structure for the
European sector while a coercive and government-controlled structure of the
African sector.
● A policy system designed to facilitate development of the European sector and
under development of the African counterpart.

Social
● Population growth and migration challenged the land sector as they
overstretched the land’s carrying capacity and lead to overcrowding.

Manifestations of the land question:

● Dispossessions
○ The Arabs forcefully acquired land was held communally and used by the
communities in the Kenyan coast.
○ Slave trade by the Arabs made many native Africans flee their homelands
for fear of being captured and sold as slaves.
○ The Land Titles Ordinance of 1908 required persons claiming title to the
land within the 10-mile strip to lodge their claims however, majority of
Africans were unaware of this requirement.
○ The Maasai community through the 1904 and 1911 agreements led to
their displacement to unproductive riddled reserves leading to loss of a lot
of cattle.
○ The Sabaot in 1913, were also ordered to move out of Trans Nzoia by the
British settlers.
 ○ Women in the country were also prevented from ownership since they
were not considered part of the communities.

● Disparity in land holding

○ Large tracts of land are in the hands of few individuals leaving a majority
landless.
○ In most households where men are the heads, control of land and other
family properties is usually in the hands of male family members.

● Overemphasis on land as a form of property

○ Land provided fertile soils for agriculture.
○ Land also formed the basis of colonization as there was industrialization in
Europe which necessitated fertile land for raw materials.
○ The British had vast economic prospects by acquiring land in the territory
to ensure constant supply of raw materials.
○ Arabs also held land where they held captured slaves awaiting
transportation.
○ The centrality of land colonially was also seen in the enacted laws put in
place to facilitate alienation from Africans
○ The African elite after independence also continued to facilitate land
alienation. African communities also thought holding land would
strengthen their political and economic bases to gain dominion over other
communities.

● Illegal acquisitions
○ Senior government officials intensified illegal transfer of land from the
public domain to private individuals and entities, mainly for political
purposes.
○ The Commissioner of Lands as well as the presidents’ post-
independence used their power of allotment to illegally grant public land to
individuals especially within urban areas and townships.
○ Individuals could sell letters of allotment at a premium and the purchaser
would assume the responsibility of paying government levies.
○ County Councils abuse the trust vested in them where they illegally
acquired public trust land.

● Multiplicity of land laws and breakdown of land institutions

○ Introduction of foreign law therefore has interlinked effects: ratification of
the alienation of African land and the subsequent confusion in the land
administration regime.
 ○ Statutory Law introduced the principle of sanctity used to protect
unlawfully acquired possessions.
○ Registration of a person as an absolute proprietor extinguished all
customary rights and interests over the land: Belinda Murai & others v
Amos Wainana

● Environmental Degradation
○ Informal settlements are unplanned for and lack basic amenities leading to
poor waste disposal.
○ In rural areas, destruction of forests for timber, fuel and increased soil
degradation is prevalent.
○ A lot of wetlands have also been converted into human settlement in spite
of their ecological value.
○ The 1902 Crowns Land Ordinance stipulated that 10% of the land held by
individuals be covered with tees.
○ EMCA also provided for environmental effect assessment before use of
land spaces.
○ Nyayo Tea Zones were meant to ensure the protection of forests but were
later used to illegally acquire land.

● Poor land use planning

○ There exists population pressure on the limited land that is available in
urban areas.
○ The urban plans formulated are thus unresponsive to the pressing needs
in these areas.

● Marginalised groups and their land rights

○ Women only had access rights and not ownership. The law further
enforced this domination that existed and led to the inequitable and
inefficient distribution of land ownership.
○ Patriarchal biases were reflected in written law and in the pronouncements
of law.
○ Esiroyo v Esiroyo: the court stated the woman had no interest in the
registered pieces of land and that for her to be granted rights over the land
she had to show that the land was being held as trust property.
○ Zibretta Atamba Shikumba v Livingstone Shikumba Shikhuya & another:
registering land in the defendant’s name does not mean the plaintiff’s
interests on the land were extinguished.

Critical issues for NLC

● Irregular and illegal allocation
● Historical injustices
● Relationship between NLC and Cabinet Secretary
● Relationship with other critical agencies
● Squatter and absentee landlord problems
● Devolution
● Compulsory acquisition