Property Law 2011 Teaaching Model (Kenya)

UNIVERSITY OF NAIROBI SCHOOL OF ECONOMICS

GPR 204/ XET 204, PROPERTY LAW COURSE CONTENT

COURSE INSTRUCTOR: Jackson Bett COURSE OUTLINE INTRODUCTION This course introduces students to the conceptual and theoretical framework and equips them with skills to enable them appreciate the complex array of property rights in general and property law in particular. It also enables students to appreciate the different legal processes which govern the management of the various property regimes in Kenya and the manner of creating different levels of rights in relation to such regimes through various transactions Objectives of the course The course seeks to:-

1. Introduce students to the formal rules of property law and the nature and content of rights attached thereto.

2. Equip students with the knowledge of the various categories of property rights and the different forms of registration systems

3. Enable students understand the basic legal mechanisms for the administration and management of properly rights, their ascertainment, recording and protection.

4. Enable students understand the legal implication of dealing with property and processes and transactions involved in creating various categories of burdens on land and their legal ramifications.

5. Enable the students understand the legal framework for the creation of rights in property and the range of rights that are capable of creation under our law, the mechanisms for their alienation, allocation and disposition including the available mechanisms for the determination of rights of the parties involved.

6. Enable students of property law to better understand n and appreciate the case for the state intervention in certain instances so as to put in place such qualifications, limitations and suppressions of property rights as may be necessary in the public interest.

7. To prepare students of property law for the practical aspects of basic conveyance, including introducing them to common terminology, documentation, registration etc.

8. Enable the students understand the rules that apply in the facilitation and regulation of transactions involving property rights.

USEFUL GOVERNMENT DOCUMENTS

1. The constitution.

2. The land policy. 3. The 2002 report of the commission of inquiry into existing land law and tenure

systems ( Njonjo Commission Report). 4. The 2004 report of the commission of inquiry into illegal/ irregular allocation of

public land ( Ndungu Report). 5. The 2011 draft National Land Commission Bill. 6. The draft Land Bill.

RELEVANT STATUTES

1. The Indian Transfer of Property Act, 1882 2. The Registered Land Act Cap 300 3. The Registration of Titles Act Cap 281 4. The Government Land Act Cap 280 5. The Land Titles Act Cap 282 6. The registration of Documents Act Cap 285 7. The Land Acquisition Act Cap 295 8. The Land adjudication Act Cap 284 9. The Land Consolidation Act Cap 283 10. The Land control Act Cap 302 11. The Sectional property Act Cap 21 of 1987 12. The Land ( Group Representatives) Act Cap 287 13. The Equitable Mortgages Act Cap 291 14. The Local Government Act Cap 265 15. The valuation for rating act Cap 266 16. The Landlord and Tenant ( Shop, Hotel and Catering establishment) Act Cap

301 17. The Rent Restrictions Act Cap 296 18. The Rating Act Cap 267 19. The Stamp Duty Act Cap 480 20. The Banking Act Cap 488 21. The Central Bank Act Cap 291 22. The Judicature Act Cap 8 23. The Interpretation and general provisions Act Cap 2

RECOMMENDED TEXT AND MATERIALS

1. Meggary & Wade, The Law of Real property, London Sweet and Maxwell, 2000 2. Okoth Ogendo, Tenants of the crown: Evolution of Agrarian Law and

Institutions in Kenya, ACTS Press, Nairobi,1991. 3. Okoth Ogendo,The tragic African Commons, ACTS Press Nairobi. 1991. 4. Smokin Charles Wanjala, Essays on Land Law, 1991. 5. Ojienda T O, Conveyance Law and Practice in Kenya, 2009. 6.

ASSESSMENT OF STUDENTS: COURSE WORK AND END OF SEMESTER EXAMINATIONS Students are notified that the assessment o their academic performance skills shall take the form of written coursework which shall constitute 30% of the total mark. The remaining 70% of the mark shall be earned by way of written end of smester exams. The pass mark is 40%. OVERVIEW FOUNDATIONS OF PROPERTY LAW

• Sources of law in Kenya. • Assimilation and imposition of foreign law into our property systems and the

ramification thereof. • Organic evolution through creative interpretation. • The formalisation of property rights through the process of registration.

LAND TENURE SYSTEMS IN KENYA AND THE LAW IN RELATION THERETO.

• The pre- colonial land tenure systems in Kenya. • The colonial land tenure systems in Kenya dealing with the emergent

challenges and legal obstacles. • The consequences of colonial land policy in Kenya. • Land tenure systems in the post colonial Kenya: maintaining the status quo. • The resilience of customary law based communal land tenure. • The individualisation as a lasting legacy of imperialism. • Land ownership in the run up to independence. • Land tenure systems at independence. • Land tenure systems under the new regime.

THE LEGAL FRAMEWORK FOR LAND DELIVERY AND LAND ADMINISTRATION, DEVELOPMENT AND MANAGEMENT SYSTEMS.

• Special characteristics of land as a form of property. • Categories of land in Kenya, private/ community and public land. • Administration of land registration system: administration set up and the

institutional mechanisms for land survey, demarcation, consolidation and registration.

• Development and operationalisation of registration systems in Kenya: the role of the department of land in the ministry of lands.

• Land registration and related processes: the development of the idea of land title registration and the question of registration of titles vis a vis registration

deeds; an introduction to the Torrens System of Land Registration and the principles thereof.

• The various legal regimes for land registration in Kenya. • Land management, delivery and market regulation, the laid down procedures

for various transactions, the range of possible transactions with regard to the registered land and constraints in relation thereto.

• Solving land related disputes: institutional and legal mechanisms of resolving such conflicts.

LAW ON LAND REGISTRATION PROCESSES AND RELATED TERMINOLOGY PROBLEMS

• The land register: the three part thereof, ie the property section, the proprietorship section and the encumbrance section.

• The forms and nature of documents of title to land and related transactions. • The customary law based title vis a vis registered title contrasts. • Overriding interests. • The goal and objectivity of registration. • Registration and priority of rights. • Stay of registration. • Rectification and indemnity. • Duties of registrar in registration.

LAW OF PROPERTY DEALINGS: LEASEHOLD GRANTS AND RELATED TRANSACTIONS.

• Leasehold grants and transactions; meaning and nature thereof. • Associated terminologies. • Nature of lease. • Leases and tenancies; distinction and similarities. • The essential of a valid lease. • Registration requirements. • Classification of leases and tenancies. • The rights and obligations of parties. • The enforcement of such rights and obligations; the remedies of parties. • Terminologies of leases/ tenancies and the effect of such termination

Leasehold interests and licences: a contrasting perspective; salient features of a lease that sets it apart from a licence. THE TRANSACTIONS IN MORTGAGES AND CHARGES AND THE LAW IN RELATION THERETO.

• Meaning of charges an mortgages.

• Terminologies in respect of such transactions, borrower/lender, mortgagor/ mortgagee, chargor/ charge, charge/mortgage.

• The forms and nature of mortgages. • Types of mortgages and charges. • Nature of charges under RLA. • Second an subsequent charges • Equity of redemption and the legal right to redeem. • Creation of mortgages and charges. • Remedies of parties to a mortgage/ charge transactions ie foreclosure, judicial

sale, statutory power of sale, appointment of a receiver. STATES REGULATION OF PROPRIETARY DEALINGS AND INSTATNCES OF CONTROLLED TRANSACTIONS.

• Meaning thereof. • Nature of controlled transactions. • Controlled tenancies, agricultural land, residential and business premises and

planning areas. • Roles of local authorities , land control boards and rent restriction and business

premises tribunals. • Powers of controlling authorities and bodies.

CONTEMPORARY LEGAL ISSUES ARISING ON PROPERTY LAW

• The efficacy of Kenya’s registration systems • The viability of continuity with the multiple statutory registration regimes:

whither? • The ramification of the land policy under the new regime. • Integration of environmental concerns to attain sustainable land use. • The compatibility or otherwise of the dual land holding systems in Kenya. • In search of a just, rational and more equitable land laws and land tenure

systems in Kenya. • The land question, the case for comprehensive reforms , the future of ongoing

reforms initiatives and the need to allow participation of all stakeholders. • Case for evolving legal framework that shifts focus from land to other

alternative viable forms of property.

THE FOUNDATIONS OF PROPERTY LAW IN KENYA Introduction The objectives of the course is to equip one with the knowledge of the various categories of property rights in land and to know a bit about construction of forms and other documents used in the registration system. There is a determination process that can put to rest disputes and the course gives a clear understanding of the basic administration mechanisms in relation to property rights.

• Nature of creation of property rights • Process of transfer and transmission of property rights • Elements of the Registration System.

LAND TENURE IN KENYA This is best approached with reference to the various periods and phases through which this process has gone through. There is the pre-colonial phase or phase 1 and a necessary part of that exercise would entail an understanding of the question as to whether or not there were modes of property holding which were clearly understood by the various communities or is this domain of case law as it applies to matters of property. The ramifications of the colonial experience were very much affected by the earlier position of customary holding systems. What were the long term effects? CUSTOMARY LAND TENURE Customary land tenure would be crucial where we do not have a homogenous system. This would sharply contrast with the feudal type of land holding found in England. African customary land tenure was based on cooperative and the English Feudal System was structured according to some political arrangement in terms of control and access to property. In terms of land use, under the traditional African customary system, it is membership that defined ones rights to a particular property that was communally owned. The rules regulating enjoyment on land were clearly outlined and they were enforced either by the members themselves or by some selected groups within the community. In this pre colonial phase, property holding had the positive feature of ensuring that everyone had access to land and the notion of land as we know it today was completely alien. In certain circumstances owing to manifest abuse of rights accorded to an individual, there would some kind of discipline attached to property. There may be issues arising to justify why it was not possible to maintain this discipline. There were organised units of property holding based on families and clans on the basis of which property holding systems arrived. The advent of transaction in land was not very much a winner.

It was inevitable that you would have the introduction of the English system of land holding for a number of reasons. Part of which was explained by the misconception that the notion of property ownership was not clearly understood to the native and he did not actually own the house that he occupied and that it was therefore necessary to determine the proprietary interests. However, the entire process was lacking in legitimacy. The introduction of foreign system of land holding is by far the most significant because it had far reaching consequences and these consequences are still part of the problems related to land holdings and distribution in Kenya today. The settlers had come from areas that had developed systems of holding and they had come from different areas. They needed assurances that having come from home to unknown territory, they needed some guarantees and the easiest way was to transplant the systems that the settlers employed in their jurisdictions. There is a dual system of property holding with different sets of rules applicable for each of those areas that by and large remained the case throughout the colonial period so that it is only when particular areas were acquired and consequently fell under registration that it changed its status to that of being governed by statute law. That has not come without its share of problems. At some point it was decided on the need to reform the land system and the initiatives were meant to work in favour of indigenous people. The whole process of adjudication and consolidation was meant to improve Agricultural output. Working on small holdings using very old methods of farming , relying on small pieces of land by so many people were factors identified as contributing to the poor performance of the agricultural sector and in the 1950’s several land initiatives came up to change that. Reforms were ushered in and it is to these initiatives that we owe the subsequent developments that were to come regarding land registration consolidation and adjudication. Individual tenure rather than group ownership would result and part of the reasoning for undertaking the process was that if you bestowed security on an individual by having a person registered as the sole proprietor, it would have the effect of boosting the morale of the individual concerned as any effort made towards developing the property could be his to keep and reap the benefits which would not benefit everybody as would be the case in communal ownership. The problem of accommodating those who had always depended on a particular piece of land for their livelihood and the weaknesses in the African Agriculture was to be attained through individualisation of title. It was inevitable that quite a number of people would be left by the wayside since not all of them could be registered as proprietors and immediately the problem of landlessness and never ending disputes as to ownership emerged in certain areas. The regions within central parts of Kenya ad parts of the Rift Valley had a higher level of such problems because of the very high population density and the upheavals of the 1950s in the run up to independence.

The second phase was replete with its share of problems and the truth of the matter is that to date the scars of these initiatives are still rife in the affected areas. It has been suggested that since one of the goals of the entire process was to give title to an individual, that it is the wrong individuals that ended up getting registered because they were probably at home collaborating with the colonialists while the other people were detained in concentration camps and or in the forest fighting. The third phase Independence & After The first thing to note is the fact that the question of land rights became as much an issue or in the early 50’s as that of liberation and in fact it is the question that land that fed the very forces that struggled to attain freedom so that the land question and the politics of the time were very much identical. The popular belief then was that you could only restore land rights in an environment of freedom. It is the case that the colonialists came and stole the land and marginalized the local people. It was only through or by undoing that state of affairs i.e. restoring freedom that people would win back those rights that were irregularly taken and so came the freedom movements and its repercussions on land rights that was to be far reaching. The newly established independence state did not depart fundamentally from the course that had been set at earlier times there was continuity in the process of land adjudication consolidation and registration. There was evidence of that up until independence when the negotiative process that was part of that made the issue of protection of property rights as the centre piece of their decision to relinquish power. It was argued that the settlers had invested and done so much and had made the place what it was and it would be unseemingly to kick them out through the freedom wars. Part of the negotiations at Lancaster Conference took care of that the most pronounced being the agreement by the colonial government agreeing to grant resources to buy out those who did not feel comfortable to stay on who would be given money to move elsewhere. Property rights thus became part of that document. The dual land holding system that had been there during the colonial times stayed. What would happen is that as more and more areas got covered by the adjudication process, it gave way to the statutory system the ultimate goal being to bring about a unified registration system that is completely regulated by the Registered Land Act and since the project is meant to be gradual, this may take awhile and so dual system still remains. There were certain areas that were acquired and given to settlers and they were designated as trust lands or special areas and there were special boards in charge of overseeing those areas on behalf of the locals. At independence the Trust Lands were vested in the County Councils around the country for the areas within which they fell. The ultimate goal of having a unified system still leaves hanging the fate of customary land law and this is not without merit. The initial problems that emerged with the introduction of a new system was the fate of those who had a share in accessing or utilising that common resources and with the completion of the registration place it can only be hoped that this will seal the fate of those who might not get lucky to be registered. The maximum that can be registered under the new regime is 5 and so not everyone can be registered as a land-owner.

What possible alternatives can there be for those who cannot be registered? Should we accept our fate as predetermined or is there a case for introducing appropriate changes that would avoid that eventuality and if there is, what are those alternatives? Ministry of Lands and Settlement deals with government lands, private lands and trust lands and the process of acquisition and keeping of the land register. The maintenance of the register, the process followed up and the significance of following the register and their relative use.

LAND TENURE IN PRE COLONIAL & POST INDEPENDENCE KENYA Land tenure as it relates to property law is important because of a number of factors which will emerge that will distinguish land from other categories of property and hence its significance. Land and Land Tenure constitute a practical subject not only to this particular jurisdiction in matters relating to property law but also in much of the developing world and the reasons for this is that in those jurisdictions the developing world in general, land remains the most important means of production, just as agriculture is in these particular countries the mainstay of the economy being agro based this remains despite efforts to bring about industrialisation so as to shift the focus from agriculture. Strategies by governments in these jurisdictions towards industry have not overtaken the important position of agriculture and therefore land remains critical. The question of rising population in these countries is yet another factor which bears slightly on the question of access to land for purposes of subsistence i.e. as we record higher and higher levels of population, the issue of guaranteeing access to everybody no longer becomes possible due to the pressures on land in effect land as a form of property becomes rather scarce giving another dimension as to question of control. Regulation of land becomes an important issue, which the state has to deal with. The third reason when dealing with land as a form of property is the fact that land is inelastic or constant in terms of supply (it does not expand) and therefore its availability is virtually impossible to vary. You have to deal with what there is as best as you can and this again brings the element of regulation. In those instances where reform policies have been initiated those policies have tended to work against the status quo in the sense that there has been much emphasis towards individualisation, the policies have tended to favour or overemphasize pre-colonial communal or corporate based sort of land holding to one that is increasingly exclusionary so that the previous all inclusive mode of land tenure has been displaced with the onset of those policies with one that is exclusionary and this moves away from the group based land tenure system. Access is organised in a continuing and readjusting basis in the first instance which can be done thro re-alignments or re-allocation of access rights to that land which all those who qualify as members have a right to utilise. When that situation is displaced and substituted with one which is exclusionary, it is the individual that is accorded the primary control of the

land in question and that of course is a negation of the corporate concept of sharing of access rights to the land in question and from there a lot of other consequences are triggered which will be discussed later. The advent of privatisation or individualisation of land was as it were wholly based on ushering in a new mode of economic enterprise, namely the free enterprise system and in most cases, wherever this was introduced in regions which had not known of such a system no preparations were ever made in terms of preparing these supposedly beneficiaries nor cultural social re-adjustments were looked into before introducing such systems and for a community of a people whose livelihood revolved entirely on land. These had other consequences like introducing phenomena that were unknown before such as hunger, homelessness and other social afflictions. The proponent of free enterprise would have argued that because of the inability of the agricultural based economy to absorb or expand, that it was necessary to introduce these changes, maybe by creating more job employment opportunities or improving standards and opening up the territory for outside trade through our public and private sector publication but despite their noble intentions, they could not go far in terms of looking at the economic consequences that would result from introducing such a system. While trying to ease of pressure from land and probably trying to make it productive, an unseen consequence of rendering people homeless emerged. There is also the argument that is given to illustrate the unique position occupied by land and this is to the effect that unlike other categories of property land represents a complex species of property to the extent that a multiplicity of interests can concurrently exist or co-exist in the same portion of land with some individuals being guaranteed certain rights in various degrees without there necessarily being a conflict e.g. you may have an individual registered to a specified portion of the land. While in respect of that piece of land, you would have yet another person enjoying rights by virtual of the … or a third person will regard the same rights as have the right of access through that land in form of an easement. You may even have a further arrangement where a fourth or fifth person is entitled to a right of profit and they may go there and collect some materials, e.g. land or firewood. To all the land that individuals may have titled, there is the element of the government having all over by the reasons that they maintain the radical title with powers that can achieved rights, enjoyment and even retention of such land One may want to know precisely on the question of tenure

LAND TENURE What is it? Land Tenure refers to the manner in which individuals or groups of people within community or society enjoy rights of access to land at a broader level, this would include the conditions under which such land is enjoyed. Examples of these are where land may be held from some superior authority e.g. from the crown or the English System or the Kabaka under the Buganda Kingdom or in some non-specific …

In most societies in pre-colonial Kenya the commonest mode of land holding was indeed thro non specific authority within the clan or lineage or families and towards that end, we may identify several types of land tenure so that one may talk of such tenure taking the form of the broader communal tenure whereby members of the group are deemed to have equal rights of access to the land, that is considered to belong to that community. Family Tenure At a much lower level it may take the level of family tenure which serves as the basis of granting access to land so that qualification as a family member will determine whether or not such rights of access would be forthcoming to an individual. We may consider such holdings under feudal tenure which is essentially a political arrangement of sorts whereby some political authority was deemed to control land in total discretion determining who should be permitted to use what portions of land and under what conditions and in exchange for what services which could be in kind or could take the form of doing manual labour or rendering vital services such as serving in the army or defending the frontiers or working in the palace or it could even take the form of giving payment in kind such as a certain percentage of all produce harvested being devoted towards payment for being allowed to use certain portions of land. Individual Tenure A person here would hold land on more or less a permanent basis free from any adverse claims from others and absolutely answerable to no one in the enjoyment of such property. This again is a new development in terms of their developments. It is perhaps the last of the forms of land tenure to emerge and this is what almost all jurisdictions are fast learning to embrace due to its perceived advantages. Individual tenure is with no encumbrances or claims emanating from other quarters. Sometimes it is hard to draw a line between the categories of land tenure but broadly speaking, one can come out with those categories. For instance in areas coming under individual tenure that were previously in another tenure you may have a problem defining the category. LAND TENURE IN THE PRE COLONIAL ERA At this stage, it was the case that every member of the society was considered to enjoy equal access to land belonging to such a society. The threshold to be met therefore for one to enjoy such rights was that of membership. That being the case, any such person was entitled to meet all his needs by looking to the communal land in respect of which no limits were placed in terms of whatever benefits that could be derived. For that very reason such communally owned land was not regarded and could never be treated as a commodity capable of being appropriated by individuals so that they could individually claim exclusive rights less so was any member of the community in a position to dispose of such land by way of sale i.e. the mutual interest that bound all community members ranked higher than any individual in matters to do with enjoyment of such property. The prevalent underlying philosophical justification often cited in support of the foregoing position is that amongst the indigenous communities, there was a firm belief that land was a God given resource to all humanity and consequently no one could exercise powers of exclusion in as far as the enjoyment of such resource was concerned. On the contrary the community was obligated by that understanding to play an effective role in allocating such land to its members collectively in the event of

disputes, the community was bound to settle such disputes peacefully without disenfranchising any member of that group from gaining access to that which was collectively owned and of course in time elders played the role in dispute resolution as to access to the land whether or not access was due to anybody in particular. By that very reason they developed a strong sense of protectionism as against none members so that all members were bound to defend and ensure that control of the resource remained in the hands of the community and not the hands of strangers for that would render them landless. So every member was called upon to play the defensive role or as a means of guaranteeing their continued enjoyment or their rights as members of that community. Proof of membership was at the centre of it all. There are instances depending on the community when non-members would be accommodated strictly on the understanding that they were being accommodated not on virtue of being members but on humanitarian grounds. Many community members were compassionate so that many non members would be brought on board on humanitarian grounds and in time they would be assimilated and as years went by they would eventually become members. Among the Luos for example “Jadak” or stranger would be welcomed and once duly accepted as one of them would gain membership. The specific ways in which land was held varied from place to place depending on the community. Every community had their mode of life which determined how they shared the land. It was not uncommon to find that there were a number of rights that were shared across the board such as those regarding grazing pastures, salt licks, shrines or religious grounds for performance of various rituals and those categories of rights that could be shared were shared and there was never conflict. A lot of scorn has been poured on the question as to whether pre-colonial Kenya had any land tenure system worth talking about and that has arisen because when one is dealing with issues of tenure, one needs to know the exact nature and content so as to authoritatively and exhaustively and precisely describe it and a lot of confusion emerges when describing land tenure in pre colonial Africa. Many reasons can be invoked to explain this state of affairs, others some people have argued that there was a deliberate exercise of misinterpretation involved and perpetrated by some Western Anthropologists who for racial or other complexes could not bring themselves to recognise community tenure as another form of land tenure comparable to what they were already familiar with. Because of their spite for anything indigenous they refused to recognise this form of land tenure. Because of their mental orientation there was had has always been an aversion for anything socialist or communist and so it has been argued that an admission by such western anthropologists that the existence of such tenure would in effect advance the cause of socialism and communism and therefore they would not lend credence to such an eventuality. For those of them who studied pre-colonial African societies or the ethnographers, the wing that studies societies, they were at a position of disadvantage being foreigners exposed to a totally mode of anthropological inclinations that could not allow them to be objective in their conceptual framework so that their capacity to understand those systems was practically impossible without reverting to western glasses and in the result they would see nothing good in terms of a developed type of land tenure which we all agree was there but they would simply not accept. Again the confusion can partly be explained by the fact that virtually all African societies were not on the whole illiterate and were capable of coming up with written data on which one could base their studies. At the point when the anthropologists came, probably for lack of data they had a free reign with nothing to contradict whatever they came up with and got away with whatever inequities that were part of the exercise. The fact remains that the study was

based on biased perceptions that formed the colonial land policy that later guided policy that followed. This is because free from any elements of bias, one could not possibly have missed the evidence that existed to support the fact that there was some organised system of land tenure. It may not have been homogenous but it presented the diversity that the communities had developed and put in place. Since there were diverse economic activities that mattered most to various communities, the absence of feudal type tenure holding alone should not and cannot be invoked as justification for rubbishing whatever system could have been there including one that was communally based which was what was in place when the colonial authorities took control of this country. Organisation at family level was explicit in most communities. Western jurisprudence regarding land tenure in pre-colonial era misses the point.

LAND TENURE IN COLONIAL ERA Colonial system brought with it a characteristic feature of the mode of production in that era which was individualising i.e. at the core of it lies the belief that the individual has the greatest motivation or interest if he knows that whatever he applies himself to or produces through his own efforts will be entirely his and not available to be shared with others or not acceptable to be communally benefited from but that drive can transform the economy. The individual drive would transform a sleeping economy to one that is booming with everything being available in abundance but thro initiative of the self. Its effect on the indigenous people was bound to be far reaching especially in matters relating to land. In Kenya it is important to note that all the communities were affected but not to an equal extent. We have communities in this country that never came into contact with the rough side of free enterprise in terms of the effects that it brought about. Those who were away from favourite settlement areas would be completely at sea when you talk of the repercussions that this sort of economy had to the land question because their land was never at risk and they continued holding it upto the point where the process of adjudication and consolidation will have reached them. Those are the lucky lot. There are those who were in the thick of it the communities who were in the white highlands, ie. Groups from the central regions, parts of rift valley and parts of Nyanza. Those people came into direct contact with this sort of enterprise and the impact was immediate, they lost valuable pasture and agricultural land. The mode of acquiring this property was different according to the so called treaties between for example the Masai and the British. The Maasai were supposed to have surrendered of their own volition those pastures that they lost. The Kikuyu’s on the other hand were pushed out by force in the face of fierce resistance. Over and above that they were later to be forced to provide labour for the whites in their farms and refusal to do that was criminalized. Other than that they were prohibited even in the corners they were pushed to , they were prohibited from growing certain crops as it was the preserve of the white settlers. For Somalis and Turkana they were so far removed from areas of interest. It is a function of the geographical location of the particular areas that were of interest to the whites. The colonial intervention had its consequences in the country that were felt according to the specific needs of the time. It was in the imperialist scheme to have effective control of the country that meant establishing administration that would be supported from the home country but which in time was intended to be self financing. The best way would to encourage

or literally beg whites to come and settle in the country with promises of unlimited land and opportunities, absolute guarantees when they taken up the challenge. This was a calculated scheme that had to rely on certain initiatives to realise the intended goals and so for those who would take up the invitation to come and invest, their concern was the return on their investment i.e. what guarantees would there be to ensure that it was not a futile exercise, after all this was a jungle and with all the myths being peddled about African people, it was a risky business. In order to meet those incentives, the easiest option was for colonial authority to import the legal from of property law already in place in England and which the would be investors were very familiar with. It is precisely because of that reason that we ended up with the English type of land holding system being introduced initially in the areas that were taken up for settlement. In the process it turned out that the colonial free enterprise economy was never intended for the indigenous people which in the first place the sort of legislative which was introduced was exclusively meant to apply to the settlers. The indigenous people were never in contemplation and that same position worked equally disastrously when efforts were made to replace the African land tenure systems with the colonial ones in what were white settlement areas. One immediate impact of the introduction of free enterprise economy was that for the first time in the life of this country, it forced land to be treated as a commodity which could be individualised, sold, owned or dealt with in the market place as per the wishes of those who had titles to such land. That is because with the introduction of the English type of land holding and tenure, we had land being individualised and the process of achieving that was to push out communities or groups of people that happened to occupy a particular area that was desired by the new comers and that had the effect of creating a class of landless people in our ranks. There were further evictions to pave way for more settlers and that in time created what was known in time as reserves. There was agitation and resistance and people would be segregated and confined in certain areas to pave way for further settlements. Communities such as the Masai who used to graze on their land from one end to another was substantially circumscribed and the overall effect was that these new modes of economy came with a huge price tag in terms of the consequences visited on the indigenous people, loss of land, change of activities,, pressure on the little land and resources left at the disposal of those immediately affect and of course the entrenchment of an alien tenure system that did not take into account all the necessary concerns of the indigenous people. The British had no apologies as theirs was a mission to colonize and forge ahead with their objectives and it is interesting that they left the task of administering this vast land in the hands of the Imperial British East Africa Company (IBEA). The history of how this came about can be traced to the Berlin Conference where the onus of administration fell to a company but from the moment it was decided that East African Protectorate would become a settlement colony, it became necessary to introduce a land tenure similar to the one in existence in Britain so that European settlers would feel motivated to settle in the colony and to invest their financial resource without any fear of losing out. As early as 1897 the fact of individual tenure was being implemented by IBEA which was initially charged with the task of administering East African Protectorate on behalf of Britain.

There were other obstacles as merely assuming status of a protected territory did not solve or the problems in terms of taking control and dealing in land as was necessary with the invitation of the settlers to come in. The question of assumption of jurisdiction had to come in. The position in law is that if there is no jurisdiction or if one has no legal basis to deal with a particular issue in a manner that is required, it is a nullity and of no consequence whatsoever in law. The first important legal task was the question of how proper jurisdiction could be assumed so as to pave way to the doing of other things that needed to be done in terms of meeting settler’s demands. They were conflicting legal opinion that was given from time to time from the law office of the crown regarding what powers attendant the British had over the East African Protectorate for instance in 1833 the legal officers in Britain offered an opinion with respect to the Ionian Islands to the effect that in a protectorate the British government did not have the radical title to the land within their territory because in their opinion, such a title could only be acquired through conquest, or by way or treaty or sale and so they argued that because of that fact and Kenya being merely a protectorate (proclaimed in 1895) Kenya being a protectorate unlike a colony, the British government could do was fairly limited. Alienation of land was not one of the powers that they enjoyed and this in effect made it virtually impossible from a legal stand point for colonial authorities to issue grants of title to land to the settlers within the protectorate. That of course lasted only briefly because there had to be a way even if it meant rewriting the rule or re-inventing the legal position and the position was reversed by another opinion given by the legal officers of the crown in 1899 which opinion was supposed to clarify the earlier one to the effect that from a legal standpoint the British government did not enjoy the privilege of having radical title only in those protectorates that could be described as having a settled form of government that the lack of competence with regard to protectorate only applied to categories that could be described as lacking a settled form of government and since the EA protectorate was not one such protectorate, the indigenous societies as they were did not present anything near to what the earlier opinion had in mind, it did not fall under the category that was excluded and they decided the E A protectorate had the radical title and consequently there was no bar to alienation and subsequent disposal of such land especially those that were deemed to be occupied or un owned and therefore using that competence the British government could go ahead and give grant of title to land to the settlers that had taken up the call. In any even it was argued that such alienation could be justified under provisions of an 1890 British Act of Parliament the Foreign Jurisdictions Act because this legislation vested in the Crown power of disposition of what was described as waste or unoccupied land. The jurisdictional hurdles were only experienced with regard to land in the interior because the position at the coastal strip which by virtue of a concession between the Sultan of Zanzibar and the British Government had fallen under the British control the practice of giving individual land had long taken root even before the opinion of 1899 and land in parts of he protectorate had infact been disposed off to private individuals. This was achieved thro initiatives carried out by IBEA way back 1n 1894, the company had promulgated regulations modelled on the 1894 Indian Lands Acquisition Act. To facilitate that act the regulations permitted the company to lease land for certain purposes among them grazing, residential and agricultural purposes and acting on that it was possible to alienate parcels of land to such persons as were desirous to owning such land.

In 1897 the company promulgated further regulations allowing for the sale of freeholds within the then 10 mile coastal strip which became part of the protectorate after the same was ceded through a concession arrangement with the sultan of Zanzibar. The jurisprudence that was relied upon to justify this alienation or the transactions undertaken within that area was that unlike the interior the coastal strip presented a classic example of a jurisdiction that had a settled form of government. The company still had ways of manoeuvring and dealing with property within the interior under other arrangements e.g. beyond the 10 mile coastal strip, it was possible for the company to issue 21 year certificates of occupancy to individuals that were later transformed to 99 year leases and this were transformed under the 1896 Uganda Railway Act which also allowed for sale of land for agricultural purposes within the Railway zone for purpose of allowing agriculture to support the building and maintenance of the railway. These were efforts of the company and not the British Government which only had its hands set free after kicking out the co. and assuming proper jurisdiction in line with opinions offered by the law officers of the crown. PROPERTY THEORY Property can be employed as a sum to refer to interests which are owned whether they be shares in a company or stocks which entitle one to a right to receive dividends or certain payments. It is clear that the term property is not only wide as a term it is also capable of being quite abstract in the sense that you talk about material and hypothetical situations. In short you cannot give an all encompassing definition of property but whenever we talk of property we refer to those situations that symbolise the fullest level of rights that can exist over an object or thing or a set of circumstances or thing or situation as well as the power to exercise control, the element of dominion over such thing, object or situation or set of circumstances that one is capable of asserting in relation to those objects or thing. The concept of property and that of ownership are very closely linked, indeed one can safely conclude that all property arises from fact of ownership and ownership itself has the element of control as an essential element thereof and the moment one who is entitled to a particular right exercises power over that, there would in effect be the necessary exclusive control which is identified with ownership. It is logically possible to talk of that which is owned as property in other words what one would be having in mind is the presence of jurisdiction vested in a person or coupled with exclusive control of whatever subject matter one may be having in mind. The quantum of rights attaching to such property may or are capable of being reduced to minimum levels one can continuously create lesser and lesser rights with regard to that which is owned. The power to control alone is not sufficient for purposes establishing the existence of property rights. It is only complimentary and the essential element is the part of jurisdiction coupled with that element of exclusive control. This is the signification of the term property in Anglo American jurisprudence and the fact that it is centralised that way is important when it comes to considering the indigenous idea of property that in their thesis one thing stands out as being very significance that one cannot talk of property without the idea of control in the African sense to the same idea of property ownership that idea does not go well if you look at it from

the point of view of customary law. For instance the element of exclusive control is something which is completely alien to the indigenous systems of property holding that you did not need to insist on having that particular requirement to be there for one to talk of property. From the perspective of indigenous property owning system, property is a common resource that is a resource that benefits all members. Membership to a particular group is just one of the test that is applied to determine whether what we are talking about would qualify as property. The function also determines whether one is talking of property reciprocal obligations that one owes to the others who are jointly interested in the same resource. The control feature is when it is applied in such a way as to exclude non-members and even then it is the members of that particular society who exercise that control and not an individual to exclude those who do not qualify to enjoy that which is commonly owned. Ultimately if you conceptualise of property from an indigenous point of view, you cannot use the Anglo American approach that is rather restrictive. In indigenous terms you do not need to qualify all those aspects that the Anglo American approach takes us through when you talk of property. You will not talk of exclusivity and control. The willingness to shoulder reciprocal obligations, willingness to apply the resource to the designated resources, property based on culture, principles that regulate that which is commonly owned, these are typical in an African setting. PHILOSOPHICAL FOUNDATIONS OF PROPERTY RIGHTS These are essentially an exercise in surveying the various theories as to how property is constituted or how it comes to be and why or what are the broader implications. A number of theories have been floated to help justify this particular aspect of concern. The study point would be the Roman maxim to the effect that ‘he who is first in point is stronger in right’ essentially the idea being espoused here is that by possession one places himself in a position where he can clearly separate his property from the general lot of the un-owned things or items. It is basically therefore an approach that is based on the notion of first come first served. But of-course there are many other modes of acquisition of property which can also be talked of for the avoidance of doubt it would be useful to note that in coming up with various modes, there may be no hard and fast rules involved. In certain cases there would be overlaps between one particular mode and others. 1. ACQUISITION BY DISCOVERY This of-course has been proved historically and otherwise discovery as a right of acquiring property. The so called new world and the dark continent are living examples. Once a discovery has been made, as a matter of right, claims over such thing, item or object can be asserted and sustained. This mode was used to assert claims of overseas territories by various overseas powers. In early times, what they would do would be to commission an expedition to go out and make discoveries to new lands. The expedition would thereafter lay possession or claim to such lands in the name of their respective sovereign governments. Upon such discoveries the alleged finders would proceed to appropriate such areas as they have laid claims

to and that would proceed not withstanding the glaring fact that there could well be some indigenous people in existence in the areas allegedly discovered. The principle of law that emerges from this mode is that discovery confers title to the nation whose subjects or under whose authority such a discovery has been made. Such title is often consummated by possession in the form of settlement. Once settled the title remains good as against all other nations so that in effect it assumes the character of a right in rem. What that means is that such a title and the attendant rights are not subsequently susceptible to any interference whatsoever by other rival nations. Such rival nations must of necessity recognise the title and the rights vested in those nations who lay the first claim and as is the nature of rights of this kind, the rights acquired by this mode are exclusive where there are indigenous or original inhabitants. Western jurisprudence has always given scant regard to the rights of such original inhabitants. In fact the general approach has been to circumscribe the rights of such indigenous people in certain cases remove them or evict them so to speak into marginal areas but within of course the territory. Absolute title as well as exclusive rights to such property result from the process of discovery. The validity of such title is thought to be incapable of being questioned at least according to Western Jurisprudence as it stands. A lot of controversy has emerged out of this and today probably nobody would accept discovery as an effective mode of acquiring property. 2. ACQUISITION BY CONQUEST Acquisition by conquest refers to the taking of possession of the enemy territory through the use of force. Discovery is the act of sighting or finding what was previously unknown territory accompanied by landing on that territory and hoisting the flag as a symbolic way of asserting once claim for the nation alleged to have made the discovery. Conquest involves use of force followed by annexation of the territory. Acquisition like discovery is today unacceptable as a matter of fact the use of force which is crucial element is proscribed under International Law Article 2(4) of the UN Charter and so it remains only of historical significance. Acquisition by occupancy, this theory appears to rest on the proposition that taking possession of an un-owned thing or object is an unacceptable way of acquiring ownership of such a thing or object so original possession is what it boils to and the principle of first in time is what underlies the whole idea of acquisition by occupancy. This theory dates back to the Roman times when Roman Law was quite influential. It draws a lot of support from various jurists some of whom espouse the view that riches of the earth though originally held in common became private property from the point that individuals out of greed started to individualise those resources that had previously been held jointly for the common good. It was Hugo Grotius view that due to greed on part of the individuals who started appropriating from the common pool and gradually the idea of property emerged and his explanation for this particular mode of acquisition rests on the aspect of grabbing that since you occupy that which you have excluded others from and assert your rights as owner thereof, it is only through that grabbing process which is in any case illegal that you can explain the factor of that acquisition and when grabbing has taken place so that there is nothing else to be grabbed the logical

conclusion would be that the participants look back when there is nothing to grab, it is time to make peace to preserve that which everyone else has grabbed. Another jurist who is also of the same frame of mind is Schlatter in his thesis titled private property the history of an idea captures that scenario in terms of “the institution of private property rarely protects men’s natural equality of rights. Property ownership was introduced for the purpose of preserving equality to this end that each should enjoy his own i.e. whatever an individual has managed to get hold of. Equality of rights as applied to property means only that every man has an equal right to grab and the institution of property was an agreement among men legalising what each had already grabbed without any right to do so. as a result of this agreement which puts no limit on the amount of property one may occupy everything would soon pass into private ownership and the equal right to grab would cease to have any practical value.” In short you look back to how one obtained that which he now asserts rights of ownership in respect of and the only justification there is is the fact that he is in occupation after which there is a truce so as to assure each and every occupant that they can hang on to what everybody accepts to be their property. 3. ACQUISITION BY LABOUR The outstanding feature of this mode of acquisition is the fruits of ones sweat going into that which ultimately takes the form of property. In other words that sweat results in some value added to whatever it is eventually becomes ones property. An ardent supporter of this theory John Locke who according to his view states that, “the obligation to respect the right of possession can only be rationalised on the basis that it is imposed by the law of nature by which all men stood bound long before human conventions became known though the earth and all inferior creatures are common to all men, everyman has property in his own person, the labour of his body, the work of his hands all these remain properly his. Whatever then that man removes out of the state that nature has provided and left it in, he has mixed with his labour and joined to it something that is his own and thereby makes it his property which excludes the common rights of all other men”. He concludes that for this labour being the unquestioned property of the labourer no man but he can have a right to. This mode has shortcomings that one may wonder how much value added, what quality can one be required to inject for such a person to rightfully assert claims of ownership to property or what if even after one has done all that one is inspired to do it turns out that it is somebody elses? Getting something in its natural state by no way rules out that it could be property of someone else, so would one assert rights of property ownership. 4. ACQUISITION BY POWER This theory is based on the idea that property confers and rests upon power, thereby bequeathing to the owner. The idea is that based on power you can acquire the sovereignty over all others by virtue of that fact. In terms of the exercise of that power by the state, for instance, the effect is to confer the radical title in the state so that all grants of title, of land for instance, you can actually trace your title back to the state which issued you with the grant in the first place. The state retains the radical title, such that the owners claim to such land will therefore have arisen by virtue of the exercise of that power by the state to issue the title. The

sovereignty and the power attendant is the sole basis for explaining how that acquisition arises in the first place. 5. ACQUISITION BY CAPTURE This has a limited application. There are some property that are not capable of being acquired through this particular mode whereas in the case of others it can be possible e.g. in the case of wild animals, the starting point is that if we were to use wild animals as our reference point, as long as the wild animals remain wild, they are nobody’s property and you cannot specifically point at anybody and say they own them. It is upto any one of the hunters, gatherers to pursue the wild animals and get hold of them and only then can the issue of ownership arise. Property becomes yours when you get hold of it before then it is anybody’s. the animal has to be captured and removed from the rest of the pool of wild animals. Pursuit alone, for example if you are chasing the animal, that will not in itself vest any property rights on you and so it is ineffectual for vesting title in respect of the pursued animal. It is only at the point that you catch it. Again this mode of acquisition is outdated. 6. ACQUISITION BY CREATION Has to be distinguished from the labour theory as it alludes to invention rather than the application of raw labour. It applies mainly in situation involving corporeal property. It involves spending of some mental as well as physical effort which results in the creation of some object or entity in which case the person responsible acquires the proprietary rights to the commercial exploitation of that particular object or entity. Examples can be seen in the form of copy rights, patents, the broader categories of intellectual property. 7. ACQUISITION BY WAY OF SUBSEQUENT POSSESSION This may arise in 3 ways

1. By finding; 2. Through adverse possession; 3. By way of gift.

Acquisition by way of original possession must be distinguished from adverse possession. Original possession is accepted as a basis upon which one can legitimately acquire property by subsequent possession what we really mean is that the property in question may certainly have belonged to someone else initially through any combination of factors. That original owner may have lost possession and parted with the property so as to make it possible for one to talk of subsequent possession by the new owner. That may arise by way of finding. The Scot say finders keepers while losers are weepers. The Scots endorsed this secondary way of acquiring possession as a legitimate way of asserting rights so that where property A is owned by X comes into possession of Y as a result of X having lost the same, the person who finds title is in law good in the whole world except for the true owner. He acquires the thing or object but cannot claim absolute title or ownership in the face of competing claims from the actual owner but as against everybody else he acquires good title. If the owner does not turn up, he acquires such property and is entitled to keep it by virtue of that subsequent possession. If the original owner turns up a duty is cast on such a person to prove that fact so he can only succeed in law by rebutting that presumption that the finder has a good claim to the property against

everybody else but the true owner. First ownership displaces rights acquired by subsequent possession. ADVERSE POSSESSION Through the operation of law, law on limitation certain rights are extinguished. Adverse possession only applies to property in land and operates as against persons other than the government. What happens is that land which is initially owned by a particular rights thereto say land owned by A. without A’s consent, B moves in occupies that land openly without consent from A and without breaking that factor of occupation for a continuous period of 12 years. B openly remains in possession as against expressed wishes of A and a period of 12 years passes, B is deemed to have acquired title to that land by operation of the law. In effect adverse possession is essentially a method of transferring interest in land without the consent of the prior owner provided that the criteria spelt out regarding the prescriptive period and the manner that it must be exercised is fulfilled. The theory is based on proposition that there should be a restricted duration for assertion of edging claims and that upon the expiry of such periods, the adverse possessor should by operation of law be accorded security of title to that which he has acquired. That piece that he has openly occupied without consent of the owner of a continuous period of a minimum of 12 years. 8. ACQUISITION BY GIFT The true owner out of his own volition transfers possession of property to the recipient and in order to constitute a valid gift especially in land where there is a requirement that a deed of that gift be executed if the intention is to deliver the property in question to the recipient as a gift. 9. ACQUISITION BY PURCHASE The commonest type of acquisition in our day to day lives. Virtually today, anything that one owns is as a result of purchase. FOUNDATIONS OF PROPERTY RIGHTS AND THE BASIS FOR THOSE RIGHTS IN KENYA The Colonial Factor and the legacy that it brought about in Kenya in terms of evolution and general shaping of property rights in Kenya. The role of the Imperial British East African Co which was initially charged with the responsibility of administering Kenya as well as the subsequent role of the British Government after they took over direct administration of the British Protectorate as Kenya was then known. The various provisions within our judicial system which provide the basis of property rights and the manner of their protection, our system has sought to entrench equal protection to the

enjoyment of property rights both at the constitutional level as well as various legislation in addition to any administration frameworks that there may be in that regard. There is no need for us to go over the issue of nature and contents of rules conferring property rights since we have already discussed this in the general theory rights and how they come to be. The colonial factor is a vital one with regard to the evolution or general introduction of those systems of property rights which we have today, it is of course essentially a matter of history how we got ourselves burdened with those property systems. Various European powers divided the continent into their own spheres of influence and with the onset of that a number of things resulted the first and most significant being the need to set up an administrative framework to enable them run the country of course with that came the introduction and subsequent imposition of various norms which attended to were alien as far as the indigenous institutions of property holdings were concerned and then followed the process of alienation of land and other forms of resources by the colonial authorities for shipment back to Europe. The question of economic development of the colony or the territory in furtherance of the overall goals and the objectives of imperialism and of course the bottom of it all was the general trend to literally bribe or entice white settlers to move in and bring investments or take up economic activities farming for instance within the economy to lay a foundation for a Western style sort of economic set-up based on free enterprise and related notions and to secure all that there was the need to introduce an appropriate legal system which would enhance those goals as well as afford protection to any settlers who care to take up the challenge to bring into the territory various level of investments, take up farming or other forms of economic activities. It should not be lost that the issue of property ranks as a dominant aspect so by and large the issue of property was a dominant aspect of that arrangement. The part of the scheme of course was to go out there send expeditions, look for wealth which could be exploited so the factor of seeking out for wealth from far off overseas possession. The plundering of such wealth for shipment back to the colonial power in Europe alongside that of course was the need to make or guarantee the continuity of that system so that such exploitation contained and all these required the setting up of some structures and building up of certain institutions and it is in light of that fact that our current property owning system and the rights attaching thereto should be understood. Property in short is very much an aspect of the old question and so in trying to understand the foundations of property rights and the basis of those rights is a fairly good grasp of that colonial past should be there. The British Imperial Company had a royal charter to administer this country upto 1885 when the royal status was proclaimed resulting in direct responsibility of the British Government. This of course would appear rather weird or awkward given the fact that companies as we understand them are essentially outfits that are meant for trade. You incorporate a company because the share holders have a common objective to pursue certain business lines for purposes of profits and so other than playing that role which all companies do have of trading there was a peculiar situation whereby a second task of carrying out administrative functions of such a vast territory was added to the mandate of IBEAC.

In the course of carrying out that role of course the question of the growth of the settlement or the territory and the economy thereof emerged as one of the priorities so beside administrative concerns there was concern of settlers. The significance of this lies not only in the fact that this was inconsistent with general goals of imperialism but also because the cost of administering this vast territory had to be borne by tax payers back in England and this was proving to be too much and therefore the need to have the territory meet such costs or at least part thereof and the answer still lay in encouraging investors to come into the territory to carry out economic activities from which revenue base could be developed or taxes could be levied or the general expenditure that such an administration met. The company proceeded in a very casual basis with a task and a number of settlers took up the challenge and with that there was the issue of time to meet the expectations of the settlers after all they had been enticed to come from far away and settle far away from home and every effort had to be made to make sure that an enabling environment was created and usual rights and freedoms that the settlers were accustomed to back in England were made available and that could only mean that they tried to replicate as much of what the settlers had back in England into the colony hoping that the result would be to create similar if not as close conditions that the settlers were used to back home and as the saying goes that wherever and Englishman goes he carries with him his laws and that became more and more the laws that the IBEAC adopted to govern questions of land ownership and property rights that go along with it. These were largely borrowed from what the colonial experience in other places had been like for instance like in India. But it appeared at sometime that the overwhelming task of administering the colony became too much and the company could not cope or for other political reasons it became necessary for the British Government to assume direct charge and so in 1895 the colonial government declared a protectorate status over the territory and with that assumed the responsibility of carrying out the administrative functions previously performed by the company among other things.. The first major question that had to be taken care of upon the declaration of protectorate status was how appropriate jurisdiction could be acquired the question of jurisdiction was important since it was on the basis of such a jurisdiction that a range of powers could be exercised over this particular territory by the government in terms of allocation of property rights dealing in various transactions all these depended on proper jurisdiction being acquired. This particular question was in the case of Kenya compounded further by the fact that way back in 1833 the law officers of the British Crown had given a legal opinion in respect of the IONIAN Islands with regard to what a protectorate status means in terms of the powers exercisable. In that opinion they had advised that a protectorate status did not confer radical title to the land in the territory. Radical title is the very basis upon which the Crown or the State exercises control over rights to land and other related forms of property and the position in land is that the radical title within our territory re-imposes in the state or in the crown that it is on the basis of that understanding that the state is capable of allocating rights to such lands to various entities or individuals and it is on the basis of that that continuous control by the state over such property and enjoyment of rights the touching thereto can be maintained which therefore means that even in situations where land is allocated to an individual the situations remains that the title to that land cannot be divested from the state.

It is nominally the state that would still have the right to claim ultimate ownership. Based on that understanding it is obvious that the state would from time to time require guarantees on fulfilment of terms and conditions if the person concerned is to be guaranteed continuous enjoyment of such property that the state can periodically levy a number of financial burdens on that land rates or land rent to be paid as a condition to the continued enjoyment that the state can continuously dictate to the user to which such property can be applied be it commercial or residential or industrial. It is on that understanding that the state can repossess such property if or for any reasons that the state will have to give is based on the understanding that the issue of compulsory acquisition of property by the state arises. All this is based on the understanding that the state in exercising these powers personifies that public collective behalf for its acts. So the Ionian Island’s opinion was to the effect that in a protectorate situation the radical title to land would not inhere in the crown and that of course had the implication of limiting or curtailing to a great extent the sort of competence that the government would have in terms of allocating property rights within such a territory. The problem posed by that opinion persisted up till 1899. There had to be attempts made to sidestep that particular obstacle and the officers of the crown seem to have made an about turn and their 1833 opinion applied to only those settlement with a settled form of government and they argued that in case of British African protectorate this was not the case and there was no settled form of government and so the appropriate legislation to be invoked was the English Foreign Jurisdiction Act of 1890 under which the crown had powers of acquisition and disposition over waste and occupied land. This particular legislation gave the crown the power of acquisition over waste and occupied land. Because of that particular revision a number of initiatives were undertaken the first of which was to incorporate the same in the East African Lands Order in Council of 1901. It was similarly incorporated in 1902 into the Crowns Ordinance. Under that particular Ordinance the main objective was to facilitate the alienation of crown lands which were widely or broadly defined to encompass all public land subject to the control of his majesty that is the definition that the East African Order in Council gave it. With the newly acquired powers of alienation and disposition of crown lands the issue of allocating rights to land for private use could therefore be easily dealt with while the ends of imperialism was to encourage settlers and private developers one sure way of according such settlers guarantee of ownership was to enact or come up with a regime that regulated property rights and for the protection to such rights a number of regulations were promulgated. Initially they were modelled after the 1894 Land Regulations that had been introduced by the IBEA Company. Those regulations were re-enacted in the form of 1897 Zanzibar Order in Council whose purported objective was for the peace, order and good governance within the territory. In furtherance of those objectives wide ranging powers were conferred which had the effect of giving the crown the competence to sell freehold land within the ten mile coastal strip. Elsewhere or beyond that 10 miles coastal strip which had been ceded to the IBEA Co. by way of a concession agreement reached between the Sultan of Zanzibar and the company was the

sale of any freehold land. Elsewhere beyond that 10 miles coastal strip, certificates of occupancy could be made available and all that one required was to take up as much land as one could want and as soon as there was effective occupation a certificate for a period of 21 years which could be extended or converted into one for 99 years was issued. But because of their perceived weaknesses as guarantors of ownership, the settlers were not amused and they agitated for a more effective system and the effect of such agitation of course was the promulgation of the 1915 Crown Ordinance which gave better protection for instance under that ordinance the Commissioner for Lands had powers to grant leases in respect of agricultural land which were 999 years which are still varied today. The rents attracted were nominal within townships, the commissioner had powers to issue leases for a period of 99 years at nominal rents the ordinance empowered the commissioner to confer the leases of 999 into leaseholds meaning that one effectively freed the beneficially of such grants from the rigours of observing conditions or terms spelt out within the lease so when you have a freehold, you actually have less to perform in terms of requirements from the government as a condition of your continued enjoyment of such property. The whole idea was to make as effective as possible the institution of property that the colonial government was trying to build up since they took up control. A number of legislative initiative were taken during that time examples of which we have seen but the significance of this initial initiative lie in the fact that they provided the foundation upon which property rights especially those connected to land have evolved over the years. Today we can point to that initial effort and trace the evolution of our system or rights from that particular point. The introduction of alien norms into our property holding system that was in place did not place emphasis in individualisation and infact the contrary was the case with emphasis being on access of group membership as a condition for enjoyment so corporate as opposed to individual rights was the norm in indigenous property holding system. The indigenous mode was annihilated to give room for the emergent system which ideally was in line with what private enterprise in the Western notion is all about. Today we still point to that evolution as the basis of our current property rights. A number of changes or additions have resulted so that we can talk of essentially 3 levels at which the protection of those rights are dealt with. At the constitutional level which is far the most important we have as at independence very clear provisions in the constitution touching on property rights. Section 70(c) perhaps is the starting point that fundamental rights of the individual to the guarantee and from deprivation of property without compensation. No attempt is made to define what property is but there is sufficient clarity on what this could include immovable as well as movable property must have been contemplated and the other important section is Section 75 and this spells out in very clear terms that no property of any description shall be compulsorily taken possession of or compulsorily acquired unless 3 important preconditions are satisfied

1. that the property is required for public benefit; 2. that on a balance the public benefit in question justifies the private hardship of an

individual losing his property and 3. That prompt payments of compensation be made to the individual affected.

These provisions are a clear indication as to how highly rated questions of property rights are stated at the constitutional level the fact that these rights are provided for in the constitution

of course illustrate the sanctity of institution of private property any rights that have their basis in the constitution are treated very seriously and the violation of these rights is a violation of the constitution and this is much more effective than if these rights were provided for instance in a mere Act of Parliament.

2. To augment that particular constitution provision, there are a number of legislation be they Acts of the Kenyan Parliament or specific Acts of Parliament of the UK or other countries. These can also be turned to in terms of. The Judicature Act Cap 8 Laws of Kenya gives in catalogue of sources of law in Kenya where one of them is the constitution. Section 3 of the Judicature Act names the Constitution and that signifies the seriousness. It also provides that legislation be treated as sources of law and these include Acts of Parliament as well as specific Acts of the UK which are scheduled in the Judicature Act as well as the Contract Act Cap 23 and one Act of Parliament of India Transfer of Property Act of 1882. Section 3 also makes mention of English Statutes of General Application in force in England as at 12th August 1897. Such legislation should also refer to subsidiary legislation such as by laws or regulations. The section also refers to the substance of the English Common Law the Doctrines of Equity in force as at 12th August 1897. Those are to apply insofar as the circumstances of Kenya render them necessary and there is also reference made to African Customary Law in which one or more of the parties is subject to it or affected by it insofar as it is applicable and is not repugnant to justice and morality or inconsistent with any written law.

At the Statutory level therefore we could turn to any or a combination of sources. The Land Titles Act Cap 282, which was passed in 1908 by the then colonial legislature initial objective was to facilitate the annihilation of crown lands within the coastal region. The coastal region was in a sense different from the rest of the territory in the protectorate because of its history whereby the Arabs had long settled in the area and had developed property years back even before the coming of colonialism and was treated as sort of regime. The position was that through a concession between IBEA and the Sultan of Zanzibar, control and administration of the coastal strip fell on the company. The rights of the inhabitants who comprised mainly of Arab settler commenced long before the Whites came to Kenya. To enable the crown exercise its rights of control with regard to this particular area the LTA had to be passed to deal with the land which had already been effectively taken up and occupied in form of private land by designated individuals which in effect was private property as well as those that had not which was what could be termed as crown land. With regard to the settled land, recognition with regard to such land had to be extended so that the parties concerned had to prove right of ownership in order for the same to be recognised so that in the end successful claimants who made claims were issued with certificates of ownership giving them a freehold title to such land in certain cases whereas in others certificates of mortgage of interest were issued in the case of leasehold properties depending on the title which had been adjudicated under that title. A recorder of title was in charge of the process of adjudicating private claims to land. For those lands that were not successfully claimed or proved or those that were not occupied at all, they became crown land and the title vested in the colonial government on independence it passed on to the government which meant that it could be dealt with in any manner that is

appropriate under the applicable regulations, it could be alienated or disposed of as appropriate. There is also the Registration of Titles Act Cap 281 which was introduced in 1920 which was enacted with the object of improving the question of issuance of titles to land as well as transactions relating to such land. The targeted lot beneficiaries were the settlers who were at the time being encouraged. It introduced the form of title registration to land which is based on the Australian Torrens System. It also introduced conveyance by way of statutory forms. The Act in general its application relates to all land granted by the government or such land as may previously have been the subject of the certificates of ownership issued by the recorder of titles under the LTA. It also applies to all leaseholds land which have been converted from 99 year lease terms to 999 year leases since 1920 the year in which this particular legislation was enacted or to freehold titles converted on a voluntary basis from the Government Lands Act or the Land Titles Act and re-registered under the Registration of Titles Act Cap 281. Registration of Government Lands Act Cap 280 which was essentially a replacement of the 1950 Crown Lands Ordinance and the objective of enacting it was to make further and better provisions for regulating the leasing and other disposals of government land and also to regulate any other transactions relating to such land. It abolished the requirement of compulsory registration under the Registration of Documents Act Cap 295 on transactions relating to un-alienated government land in terms of application. The GLA governs all leasehold or freehold lands granted by the government prior to 1920 with the exception of lease of land converted to 999 years or to freeholds under the RTA. The Registered Lands Act Cap 300 has its background in the areas that were formally known as the Native Reserves or the special areas which as we probably know later became known as Trust Lands under the Native Lands Trust Ordinance of 1930 and the subsequent acts related thereto. This area was customary land and the enactment of this legislation can be attributed directly to the demand made by the natives for the return of their lands as well as with the general sense of insecurity which they felt as regards the land that they occupied compared to the White settlements where you had individuals being accorded titles in the case of these African occupied areas. It had remained government land susceptible to occupation and from time to time those in occupation would be moved to make room for settlers. The bone of contention was that this disparity and insecurity was largely the absence of a specific regime that regulated ownership of land that regulated these areas. Initially the interpretation given was that the occupation of the natives within those reserves was not to the extent of conferring to the occupants any land rights or possession as to were but was subject to the power of the governor to alienate or appropriate such land as and when the governor deemed it necessary or where public purposes was the ground relied upon. The Registration of Land Act improved on the question of land ownership set up a registration process which is similar to but not the same with those which had earlier been introduced. The natives lacked a system that would recognise ownership by issue of titles

to those who could prove ownership and they came up with a system to cater for that requirement. Land issues at the onset of independence had taken a prominent status and the struggle of the 1950’s and early 60’s were for land and only turned political after initially manifesting itself as a struggle for land. Even after the decision to grant independence was made, the land question had to be addressed in the post independent period. It was obvious that the issue would drag on and there were some areas where adjudication has not reached. This arrangement was predicated that it would go on until all land would be registered under a single regime i.e. the Registered Land Act. This was an ambitious objective but it has achieved a number of goals notable among them is individual recognition of trust lands and it is with regard to trust lands that the system introduced by the Registered Land act targets some of these areas. It has its ultimate gaol the creation of a unified land registration system and we will cease to have multiple systems although this may take awhile. Other statutes which are relevant are the Indian Transfer of Property Act which codifies the registration acts other than the Registered Land Act. In fact all the others are procedural other than substantive and in terms of applicable law; these Acts depend on ITPA which embodies the corpus of the common law in recorded form. The Registered Land Act is self contained and has its own rules which would apply in the event of any issue arising out of the others that depend on the Indian Transfer of Property Act. There are administrative arrangements that may be invoked in certain circumstances as far as property rights are concerned. 1. Under the Land Control Act, there are elaborate provisions that procure for consent

that touch on Land Control Boards to regulate the exercise membership of which is local people who are knowledgeable in matters pertaining to land rights;

2. Tribunals have also been created since 1981 to deal with land matters with the

intentions to remove the disputes of land matters, which in the past were referred to elders. Courts retain subsequent jurisdiction only after the tribunals and the elders have adjudicated on the matters and are unable to solve the disputes.

Rights once vested should not arbitrarily be interfered with unless in accordance with the law. PROPERTY THEORY THE CONCEPT OF LAND AS PROPERTY What is Land?

The issue is whether one can consider whether land can be owned as property or whether it is only the rights attaching or rights over it that can be asserted as the basis of claiming property over land. We have two imperatives

1. Can land whatever you conceptualise it to be claimed as property; or 2. Is it the rights attaching to land which form the basis of any claims to land as

property. What is land from a very basic position. Is land the ordinary property that we handle or is it different from any other property. Land as property – what sets it apart from other sorts of property? In terms of property ownership land is crucial to the political economy of any Nation and as such the issue of control of the rights to land ranks high in any governmental arrangement. For that reason the authorities retain the ultimate control of land as a resource with the results that the radical title to land remains vested in the State so that whatever it is be it strategy, security or for whatever purposes the government has a say whether it is commercial, who owns land in the country for purpose of raising revenue, who controls the process, this remains in the hands of the State. What is land? is it just the surface of the earth? Does it extend upwards, does it beg a deeper expression, what is it, i.e. in terms of the control that can be exercised by the State. Land ranks on top of all other sources of development i.e. capital, labour, etc and whoever therefore controls land controls the other process. The definition of land comes into play and The phenomenon of land as property borrowed from the Romans through the English Common Law the English have borrowed the concept of land from the Romans and it is amazingly different from what the class has expressed. Land belongs to the category of immoveable property, and the conceptual definition of land is encapsulated in the maxim ‘cujus est solum ejus est usque coelum et ad inferos’ translated this means whose is the soil, his is also that which is up to the sky and down to the depths of the earth. This is the broadest definition of land borrowed from the English Legal System that we have adopted. Land does not confine one to the simple concept of the surface. Dimensionally speaking, we are talking of the surface the space above the surface and the ground underneath. The maxim is in practical terms not possible to enforce. The general effect of the rule as originally conceived by the Romans is to divide land into 3 entities and in effect or in ordinary activities, you cannot manage to honour the requirements under that rule without transgressions. This makes a case for redefining the maxim, there rights for example the right of aircrafts to fly over airspace and the right to tap underground water and exploit minerals would be impossible if the maxim is to be strictly followed. The English from who we have borrowed have detected the defects and have tried to improve or rectify the defects one way

or the other. The roman position is extremely rigid and impracticable, and if you want to appreciate land and property in terms of what it does to our lives we have to get away from the impracticability. There has been a qualification of the Roman maxim under the English Law. One fundamental feature regards the issue of fixtures, the maxim would cause injustice to for instance a financier who has put up a plant on the surface as a tenant who can be displaced by the owner of the surface at any time. The outcry led the English to modify or qualify the original Roman Maxim so as to take cognisance of the realities. They came with ‘ quic quid plantatur solo solo cedet’ which translated in English resembles whatever is attached to the soil or annexed thereto becomes part of the soil but with a condition to make real the Roman maxim they accepted that whatever becomes attached to the soil or annexed thereto becomes of the soil. Fixtures become part of the land and fixture is defined as object attached to any real property for the permanent enjoyment. The acceptance of the Roman maxim into the English system as it were was not absolute because several conditions had to be satisfied, i.e the nature of the fixture, degree of annexation to the soil or the permanence thereof, the object of purpose of that annexation and this made these conditions made the difference in terms of determining whether one would take away or leave behind whatever fixtures were on the land. This issue arose because of the tenants/mortgagees who were involved with the land on a temporary period. What of the developments that were on the land would they have an adverse effect on the tenants, what if the tenant had put up a plant to manufacture certain items? The machinery would be part of the soil. In strict adherence to the original Roman maxim the interpretation would be that the plant becomes part of the soil or land and the owner in the absence of the consent from the owner of the land would not remove it from the land. The imperatives that arise in terms of the grief of tenants and mortgagees requires that we have exceptions because it would rob investors of capital who invest without owning the land. The English law introduces that where the fixtures concerned are trade fixtures, the owner could remove them as tools of trade should not become part of the land. Trade fixtures are excluded because of the manifest injustices that could be occasioned if they were allowed to become part of the land. Where there are fixtures that are merely ornamental, they can be similarly be removed and they do not become part of the land. Where the fixtures are domestic or agricultural in nature, they cannot be considered as part of the land. The original maxim of cujus est solum… PROPERTY LAW Land as Property Control rests with the state by virtue of the fact that the radical title is in all cases retained by the state even in cases where nominal ownership goes to individuals or proprietors. Retention

of radical title enables the state to perform a number of functions in relation to land ownership i.e. the size and the use of the land. The two components i.e. the theoretical element as well as the legal element of what land has been defined to be Conceptual aspect: The English Common Law position draws substantially from the Roman position based on the maxim ‘cujus est solum ejus est usque coelum et ad inferos’ which loosely translated in English means ‘whose is the soil his is also that which is up to the sky and down to the depths of the earth’ from this conceptual framework there are 3 essential elements

1. The Solum which is in reference to the surface of the soil which in common parlance would be what we conceive as land.

2. Coelum is the space above the earth or atmosphere 3. inferos is in reference to the geosphere or the ground down below

We have a dimension approach both vertically and horizontally in terms of conceptualising land and literally taken the full scope of this maxim would have been that whoever owns the surface of the soil owns the land both vertically all the way upto infinity up in the skies and also down to the centre of the earth. This is the implication of the Roman maxim. The English thought it was not practically possible to assert ownership with the kind of dimension defined by the Roman Maxim and so the English common law has in its application of the maxim somewhat refined the 3 essential elements which comprise the same in order to meet their aspirations or perception of what should be included as regards to the concept of land. With regard to solum (soil) the English have translated the maxim to reflect certain aspect which they consider close or relevant to their scenario by introducing the element of fixtures so that in attempting to define the solum the common law came up with yet another maxim ‘quic quid plantatur solo solo cedet’ Whatever is attached to the soil or next thereto becomes part of the soil. Fixtures are therefore deemed to be part of the soil and in this case fixtures refer to any object attached to the realty for the permanent enjoyment thereof. There are of-course certain enjoyments for them to qualify as fixtures, the degree of the fixture to the soil would indicate the extent of permanence to the soil. A lot of grief befell mortgagees and tenants due to this maxim they felt they were disadvantaged since if the mortgagee or tenant who was temporarily on the land had attached some fixtures to the land the landlord would then benefit from the fixtures put up by the tenant. If this was to be upheld it would result in any such fixtures becoming the property of the landlord to the detriment of the tenant because in the absence of the consent from the landlord, the position at common law was that the fixture fixed to the soil became part of the land. To remove the harsh consequences, common law set upon the process of scaling down on land paying due regard to traditional trade practices and a number of measures by way of exceptions were injected insofar as the doctrine of fixtures was concerned.

Where fixtures were trade fixtures, it became permissible for fixtures to be removed at the end of the tenancy without offending the principals. Where they were ornamental they could be removed without infringing on the doctrine of fixtures and where they were of domestic nature they could also be removed. Closely related to issue of fixtures is the issue of position of certain parties who may not have intended at the time of affixing certain items to the land to make them part of the land

1. Devicees and personal representatives i.e. when land as property passes by way of a will, of-course the parties that are concerned on the one hand are the person who is giving the property, the Devicee and on the other hand you have the beneficiary or personal representative acting on behalf of the beneficiary or for himself. The position is that all fixtures would pass under the device to the beneficiaries and consequently the testators are precluded from removing such fixtures from the land even if that was to be done for the benefit of the Estate. This position applies regardless of the nature of the fixtures of whatever kind.

2. In the case of the vendor and the purchaser, the position is that all fixtures attached to the land at the time of the contract of sale must be left for the purchaser acquiring the property unless there is an express provision in the contract of sale to the contrary, the result being that such fixtures would pass to the purchaser only those structures which are not or do not qualify under the broader fixtures would be exempt.

3. With regard to the position of mortgagor and mortgagee for purposes of securing

credit i.e. where land is mortgaged it is the case that all fixtures, on their own are taken to be part and parcel of the transaction notwithstanding the fact that there may be no mention of this particular aspect in the instrument. In short this is a matter that is presumed. The mortgagor is thus not entitled to remove such fixtures which he may attach once the mortgage has been executed.

With regard to coelum (atmosphere) the concept of reasonable user has been introduced. Ordinarily if one strictly applied the requirement of the maxim, certain activities would never be possible and so common law being conscious of that fact introduced the doctrine of reasonable user. Under the unqualified maxim any projection into space would qualify to be trespass and this is untenable as some of them are essential and so to resolve this the common law introduced the doctrine of reasonable user so that the coelum belongs to whoever owns the surface became a rebuttable presumption i.e. What type of activities would infringe one’s space, would the activity in question qualify as reasonable user, it became a matter to be judged on a case by case basis. With regard to geosphere limitations were placed and the scope of asserting rights with regard to geo-sphere would not end until one got to the centre of the earth. Beside precious resources such as minerals and water, the limitation that the original maxim would impose would exclude anybody from tapping in any way whatever or benefiting from these underground resources. The common law came up with exceptions:

1. By restricting the scope of claims that the owner of the sollum could assert with regard to whatever lay beneath the soil. Water was included as part of the resources that would not be left in the hands of an owner and minerals as well.

These two were exempt and minerals such as silver and gold according to common law belonged to the King and Queen.

2. Water was brought in although there was a distinction whether it was percolating

on the ground or flowing to on defined channels. In case of water flowing in defined channels, it was declared not to belong to the owner of the solum but they had licence to drill holes and tap water excluding other people from use of the water. Bradford Corporation & Pickles (1894) AER 7

It has been by elimination in terms of the maxim borrowed from the Romans. In our case we have to look to the position at common law as well as our experience through statutes limitations. We also look to the maxim as refined by common law. The legal concept of the maxim does not necessarily coincide with what we get from the common law. We have numerous statues that attempt to define land and are a characteristic or feature of these various definitions is that each of them attempt to define land for their own limited purposes. There is no universal legal definition of land in this country and each of them will try as far as possible to advance the limited purposes for which they want the concept to be understood as. The starting point would be Section 3 of Registered Land Act CAP 300 which defines land as ‘Land includes land covered with water, all things growing on land and buildings and other things permanently affixed to land. Registration of Titles Act Cap 281 Land is defined to include land and benefits to arise out of land or things embedded or rooted in the earth, or attached to what is so embedded for the permanent beneficial enjoyment of that to which it is so attached, or permanently fastened to anything so embedded, rooted or attached, or any estate or interest therein, together with all paths, passages, ways, waters, watercourses, liberties, privileges, easements, plantations and gardens thereon or thereunder lying or being, unless specifically excepted.” Under Land Consolidation Act Cap 283 land is defined to include land covered with water, any estate or interest in land other than a charge, all things growing thereon and buildings and other things permanently affixed thereto;. For purposes of Land Acquisition Act Cap 295 land includes all land, whether covered with water or not, and things attached to the land, and (where the meaning may be inferred) any estate, term, easement, right or interest in or arising out of land.” Under Lands Planning Act Cap 303 land is defined to include any land covered with water, and any building or other thing attached to land, and any interest or right or easement in, to or over land; Under Limitations of Actions Act Cap 22 land means “immovable property” or the proceeds of the sale of immovable property, but not an easement nor a debt secured on immovable property by mortgage. Valuation for Rating Act Land Valuation Act Registration of Documents Act It is accurate to conclude that you cannot talk of a universal definition of land. In terms of judicial application, both at common law and our own situation, the understanding conveyed various views have been tested. The doctrine of attached fixtures and conceptualisation of land as encapsulated under the cujus maxim is the same as reflected in Wandworth Board of

Works v. United Telephone Co. Ltd (1884) AER and the opinion that the presiding judges gives his … “ as at present advised, I entertain no doubt that an ordinary proprietor of land can cut and remove a wire placed at any height above his freehold” in line with the general principle. The court observed that in English common law, land did not denote the physical solum alone but everything above the surface, below and anything affixed thereon so that where a case of land is subject of a grant or is conveyed in England by way of conveyance, everything is passed which is below that portion of land down to the centre of the earth. These sentiments do not take into account the refinements that have to been invoked by reasons of the fact that they are necessary. The court here is amplifying the tenets of the maxim both in terms of what it conveys in its original and refined form that takes account of additions. In Kenya it has not been consistent due to the absence of spirited litigation that have as centre piece exposition of this idea. So may be the Kenyan courts have not had the opportunity to interpret the law as they understand it on this particular matter. From time to time our courts have had occasions to reaffirm the common law position as being applicable in this country subject only to statutory modification which we may have in our situation, that is explained on the basis of the fact that if on one hand you are faced with the common law position which may be at variance with the statutory position then we may have a precedent. The courts have been at one in upholding the view that the common law position is acceptable subject to statutory provisions which would then take precedence. STATUTORY LIMITATIONS ON THE MAXIM AS IT APPLIES TO KENYA There are a number of provisions within our laws which by their very nature operate as exceptions to the ideas that the maxim portends to bring out if taken in its totality. Examples

1. The Mining Act Cap 306 - under this Act Section 4 states that all unextracted minerals (other than common minerals) under or upon any land are vested in the government, subject to any rights in respect thereof which, by or under this Act or any other written law, have been or are granted, or recognised as being vested, in any other person.

2. Similarly under the Mineral Oil Act Cap 307 all mineral oil including gas and bitumen are vested in the government.

3. the provisions of the Water Act Cap 372 S. 3 categorically provides that the water under or upon any land is vested in the government subject to any rights of user in respect thereof which by or under this Act or any other written law have been made or are granted or recognised as being vested in any other person. The Act distinguishes between a body of water or any other water. Body of water is both surface and underground water and the situation in common law there is no difference between percolating water and surface water. Where land is owned by one person and does not extend beyond their boundaries.

4. With regard to atmosphere Civil Aviation Act Cap 411 – this Act gives Minister power to specify the height of any structures within the limits of a gazetted aerodrome. Section delimits usable space available to any property located within a gazetted area for purposes of the Act and to that extent the common law position is altered.

Under Kenya Posts and Telecommunications Act Cap 315 there are certain powers conferred on the parastatal with the effect of cutting back on the rights of a proprietor with a claim to his land. It entitles the parastatal to enter any land for purposes of setting up telephone lines and this in effect renders meaningless the contention that whoever owns the surface owns it to exclusion of all others. In Electrical Supplies Act - Kenya Power & Lighting is authorised to enter into anybody’s land for purposes of setting up power lines. The Way Leaves Act 21 of 1987 empowers the state to exercise a right of direction in matters regarding laying of electric lines, underground cables, flyovers, etc. Under Sections of Properties Act of 1897 the old concept of solum was demystified because the traditional idea of looking at the surface in a limited scope has given way to anew concept whereby one can own not just the surface on the ground but also space above it in sections. It is an attempt to collate some provisions of the RLA especially within urban centres where space is scarce. The idea is to have property being owned in a vertical dimension and whoever owns the soil need not claim that he owns the space above it. Example is a block of flats with different titles. This in effect means that you do not have to insist on the original maxim cujus because you are not necessarily the owner of space above you which might belong to someone else. CLASSIFICATION OF RIGHTS & INTEREST IN LAND At common law land rights and interests are related that are broadly divided in 3 categories

1. Estates 2. Servitudes 3. Encumbrances

ESTATES This is closely related but not similar to the doctrine of tenure. Estates relate to interests in land which are projected on the plane of time and consequently are capable of being quantified in terms of duration. Tenure on the other hand refers to a set of conditions upon which an estate or interest in land may be held so that with respect to an Estate the relevant question would be for how long? Where in tenure the relevant question is for How much? In terms of whatever the conditions may be. In a sense the doctrine of tenure is preoccupied with the quantification of interest in land that one may hold regardless of their nature. Common law knows of a number of sub-division and divides Estates into further sub categories.

(a) Freehold Estate; these are further subdivided into freeholds of inheritance or freeholds not of inheritance. Freeholds of inheritance are themselves further subdivided into two classes namely, Fee-simple estate and Fee-tail Estate. Freeholds not of inheritance are subdivided into (i) life Estate and (ii) Estate per autre vie. The principle distinction to note between the categories is that we have property rights that can be passed from generations to another in freeholds of inheritance. Fee simple Estate is said to be the largest quantum of

interests that a landowner can have at law. Fee tail Estate merely gives a person a life Estate followed by successive interest whatever form those interests may take. They need not be interests that pass to the descendant but can pass to whoever it is designated. The important thing is that it has life interest in the Estate. In the event that there is no passing of such successive interest i.e. where there is failure for whatever reason to pass to the designated person, it is in the nature of such an estate to pass to the state through the operation of the doctrine of “escheat” please note the term emanates from latin word ‘Talliatum which translated means to ‘cut down’ and the essence of this sort of Estate is that it is predicated on something that is definite by the doctrine of Escheat failing which it would escheat back to the state. The radical title is retained by the state and in event of failure property passes back to the state.

Life Estate lasts for the life of the person who has been granted such an interest, the life of the guarantee only. In the Case of estates per autre vie, this type of estates are the type that is meant to subsist for the life of a person other than the one in whom the property rights in question have been vested. For instance if the property in question is vested in ‘A” for the life of ‘B’ what it means is that the Estate will last for as long as B lives and in the event that B dies before A, the property revests on the person who made the settlement or the settlor.

(b) Leasehold Estate. These Estates vary depending on duration or time for which they are supposed to last so that we can speak of different categories of such interests. (i) There are fixed term estate/interests – these leasehold interest is

one for a fixed period of time i.e. 99 yrs lease etc. it involves a continuing relationship between the parties to the arrangement and it is not unusual to find the same being privy to various covenants that regulate the terms and duties of the parties. The duration in question must be expressly fixed from the agreement. The length of the term is largely irrelevant provided that the duration can be ascertained and is presented in a way that indicates when it commences and passes on a designated date. It is a requirement that fixed lease interest must take effect immediately. The interest leased out should vest at once without necessarily requiring that issue of possession being simultaneously sorted out requiring the one in possession to hand over the property. Possession need not be taken at the same time. The fact that fixed period lease takes effect immediately does not detract from parties arranging for what is known as diversionary leases which by their very nature cannot have the interest in question vest immediately. There is a provision made for reversionary interest which are deemed perfectly valid if properly executed. The reversion being referred to is that the lease which is designed to run from point A to B would run its full course with the reversion being vested in the second person in whose possession it will have vested. There must be registration of

such reversionary lease at the point when it should vest. Reversionary interest therefore must vest within 21 years failing which the lease in question becomes void. All fixed period leases take effect at the date indicated as date of commencement. That does not obligate the party in whose favour the lease has been created to actually move in and taken possession. The emphasis is taking of interest. Under S. 51 RLA any instrument purporting to create a lease which vests after 21 years is on the face of it void because it would defeat the provisions that the interest must vest within the 21 years period. It is not unusual to find a series of leases being executed in favour of different persons to take effect. One can have several leasehold interests conferred within that period none of which would be deemed invalid.

PERIODIC LEASES A periodic lease is defined in Cap 300 as periodic the tenancy from year to year, half year to half year etc so that periodic tenancy may be created from year to year in respect of certain categories of tenancy. It also means a lease of an undetermined period, subject to notice of termination by either party. Whereas with regard to non-manufacturing factors of the Act makes mention of month to month. The essential feature is that we have an element of continuity unlike in the case of fixed term lease. In contrast to that, periodic tenancy does not come to an end until proper steps have been taken by either party to it giving the requisite notice to have the same terminated. S. 52 and 53 of RLA are clear on that so that in effect what arises is a situation is a situation where the arrangement continues indefinitely from one period to another provided that the maximum period at any time would be 1 year or less. It keeps renewing itself until active steps are taken by either party to bring the same to an end. In theory this type of lease has the potential to go on for time on end provided that none of the parties would have found it necessary to bring it to an end. It is precisely not a fixed period lease because in the case in fixed period lease it is known well before hand when it is going to come to an end. Such tenancy can be created by the following

(a) An Express agreement between parties through contract or by implication, where created through a contract the usual rules of contract will apply and the lease will run from designated time of commencement till either parties take appropriate steps to terminate it, where on the other hand it is created by necessary implication as envisaged under Section 106 of ITPA and 6 of RLA what is important is the conduct of the parties e.g if a proprietor permits a party into exclusive occupation of his premises at some tenure call it rent which is paid either monthly or annually the mere conduct of the owner in letting the other party and accepting payment of premium is indicative of the existence of such tenancy. The fact that no period is specified will go a long way in lending credence to what has been indicated. Section 106 stated that if it is created for agricultural industrial or any other purpose the period of the lease will depend on how rent is paid, e.g. if rent is yearly, the lease is deemed to be on a year to year tenancy.

In any situation where the term of the lease is not specified and nothing is stated about the period of time required in order to terminate the arrangement, again implication of existence

of such arise can also arise in any circumstances where a fixed period tenant decides to hold-over and the landlord continues to accept rent payments and to deal with the tenants in the usual way as before. What would have evolved in effect is a periodic tenancy in line with the provisions of S. 116 of ITPA and S. 52 of RLA. If the tenant is a protected tenant (one covered by the provisions of Cap 301 and Cap 296 in respect of business and residential premises respectfully) the position is even much stronger. Period of tenancy can be implied under Section 11 of RLA provided that right of occupation would have arisen in time for the same to have been entered under the adjudication of register and if such a right had accrued, the effect of that would create periodic tenancy capable of running from year to year. FUTURE OF REVERSIONARY LEASES Fixed term tenancy. TENANCY AT WILL This is created by an express agreement between parties. There should be no period fixed for tenancy which therefore leaves it open for the owner to be at liberty to evict the tenant at any term and the tenant can also walk away at any time, it can only come to an end if either parties walk out of the arrangement at any time. There is no requirement of notice and the strict rules are not applicable as it can be brought to an end either expressly through the conduct of the parties or in an implied sense or into their failure to observe certain conditions i.e. failure to pay rent. The death of either party automatically brings to an end the arrangement given its very nature there are not guarantees that the tenant will stay on the property for any specified time. The liberties enjoyed by a tenant are quite limited i.e. a tenant while in occupation cannot commit waste of any kind since occupation is temporary and is therefore an arrangement that is full of risks and which would by all means be avoided. TENANCY AT SUFFERANCE This is commonly considered to be the smallest category of Estate known to the law and it exists where one comes into possession of the property thro lawful means. Initially comes into possession of the premises or property thro lawful means but thereafter remains therein without consent of landlord. One differs from a trespasser since original entry was lawful. Consequently such a tenant can be ejected at will by the landlord who must not compromise his position in any way by dealing in the ordinary way with such a tenant. If the landlord decides to deal with this tenant past the time he is legally there. Note that the tenant lives on a property without the landlord’s permission or paying rent. PROPERTY THEORY CONTENT OF THE FEE SIMPLE ESTATE

Fee simple emerges as a very significance component in the realm of Estates and thus for further enquiry with a view to finding out more. From the outset, a fee simple estate is unlimited in scope. This means that the holder of such an Estate at least in theory enjoys unrestricted powers over such property as may be held in the form of fee simple Estate. Such powers include, the power of abuse, use and disposition. The theoretical position is theoretical in terms of the application of those possible powers of use and abuse or the freedoms that relate to that. Taken without any qualifications at common law or even imposed by statutes, those powers confer on the fee simple holder unlimited rights which in themselves are the very essence of a fee simple estate. These powers and freedoms cannot in practice be held or exercised absolutely. A fee hold estate confers and has always conferred unto the owner or the holder thereof the lawful right to exercise over, upon and in respect of the property in question, the property being held by such an owner every act of ownership which can conceivably be undertaken by the person in whom such rights rest including the rights to commit unlimited waste with regard to such property. The principal components have been analysed on the basis of the power of user or power to use, the power of abuse and the power of disposition. Those in theory are the essential features that can be identified with this sort of estate. The powers in their unqualified form know no limits but since property issues are part and parcel of our day to day lives, we cannot remain oblivious to peculiar difficulties that may be imposed from time to time when holders of such an estate insist on being theoretical and therefore common and statutory law come in to justify the sort of limits that may be allowed with regard to the exercise of this power without further derogating from the essence of the rights conferred. From this we have the laws of nuisance etc. it is only in a utopian situation that one can talk of the theoretical situation. These stretch back to colonial times imported under the Crown Ordinances right through to the government lands act. The adjudication of Title from the colonial times, land titles ordinance of 1908 later replaced by Land Titles Act. We have to be guarded in our assertions that a fee simple estate confers unlimited rights as this is only in the theoretical point of view it is different in reality. ABSOLUTE ESTATE The concept of Absolute Estate presents a peculiar scenario to the extent that it is completely outside the scope of the analysis of the doctrine of Estate. There is nothing like an absolute estate at common law. The question which arises is what is an absolute estate and how does it arise and where do we place it in general jurisprudence of Estate? The answer lies in the history of this country and in the various policies that we have had in the question of land reform. The colonial history and various attempts that are being made towards land reform explain the background to this sort of Estate beginning with the fact that in the areas where it occurs or where it is in force, there had previously been no proper system of land registration such as the type that we experience in other areas i.e White Highlands and urban areas. The other important feature that gives background to absolute estate is the systems that were in force before the settlers came ie. The African Holding systems in these areas. The mode of property holding system in this area was what is known as communal or corporate ownership as opposed to individual ownership. As a result of this mode of property ownerships, there

was the issue of productivity or agricultural methods that were in force in these areas. Because of the manner of property holdings within these reserve areas, a number of facts negated or stagnated a proper production system within these areas that could give better returns. The idea of communally owning the land meant that there would be small-holdings that would militate production levels and the native holding systems were looked at as stumbling blocks to agrarian reform. The fact that the natives were not agitating for the return of the other land but for an assurance from colonial masters that whatever they had would not be taken away made it necessary that there be a policy decision. From the early 50’s the colonial authorities were forced to change or shift gear as the original policy was that the Africans did not need any rights in land since the rights in land were complex and maybe the native minds would not comprehend them. They thought if they introduced the concept to the African areas they would be abusing the idea because Africans just would not understand and the idea was to segregate them and live in specially designated areas. It is not until such a time as the pressure of agitation before then the African was basically ignored. In 1954 the Swynnerton Plan had as its main purport the objective of intensifying African agriculture. It rightly or wrongly noted the various factors that contributed to stagnation in this section such as land ownership systems that did not augur well with good management of property. The plan advocated for reform of the land tenure system within these areas and the most important recommendation was that all property falling within the African areas be brought under a registration regime. This was to be accomplished by consolidation of holdings where they were so tiny and uneconomical to work and in many instances they would be followed by adjudication of claims regarding those holdings or titles. The objective of consolidation was to bring about bigger or larger holdings that would benefit from the economies of scale. The fact on the ground showed that due to cultural factors the problem of small holdings would not be properly addressed unless one changed the old cultural approach to issues of property ownership. In the end if family owned property was in more than one place, and the effort that would go to each of the tiny holdings would be such that in terms of productivity it did not justify having the small holdings and the objective was to attack this. Consolidation would force people to swap and people would be forced to swap so that people would just end up owning just one piece that could accommodate the modern concept of production. Consolidation was meant to get rid of the cultural land practices and it was part of the land tenure reform. Adjudication was supposed to deal with conflicting claims. Where one property would be subject of claim by many people, there had to be a definite end to claims and so the process of adjudication to cater for this concern was established. A panel of knowledgeable people was set up who knew the area of jurisdiction of the property and could articulate and judge any claims brought about by people. With the advantage of the panel being local, they would conclusively pronounce on an aspect after hearing all the representation. This was imperative because the effect of registration was that once all had been consolidated and adjudicated, the first registration would have the sanctity of being impeachable, cannot be questioned by any court of law. Following adjudication the successful parties would be duly registered as the sole proprietors of the title in question. The process as envisaged under the plan commenced within the central region and up to this point, it is still going on. Upon registration bearing in mind that the two proceedings stages are equally important, the rights enjoyed by registered proprietor were rights which were described in the nature of an absolute estate and not a free hold. This distinction is difficult because it goes a long way in distinguishing an absolute estate

on one hand and any other form of estate on the other hand. We now had emerging a form of estate that cannot be traced back to common law or lifted from the English system. It was one necessitated by reason of our history, our property holding system and the need to usher in reform in that particular area. It has been suggested that an absolute estate may be an Allodium meaning that it gives rise to rights which are held of no lord. It cannot be a fee simple estate. It is allodium because of the way it arises. It arises from the fact that the areas of the land regime that it embraces is one that has always been held by those occupying the natives lands and they held it even when the colonialists came, those sort of rights arise from grants from a sovereign. It is a recognition of the historical land rights as held since time immemorial out of the need to modernise reforms are introduced. One gives no regiment of the title which is absolute upon proof, no conditions subject to which the land is held are called unlike in the case of free hold estate. It has been suggested that or it has been referred to as an Estate Sui Generis meaning that it could be looked at as an Estate in its own right, an estate that is different from the common law notion of estate. That process has been ongoing right from the time it was conceptualised right from independence and still some areas have not been reached. It is an ambitious process because the provisions of carrying out the process are found in the Registration of Land Act. For the process that registered under RLA, in event that they fall for renewal, requirement would be that instead of duplicating various registrations, they are registered under the RLA regime. The question that begs is how far have these objectives been brought to fruition, the experience that we have had so far does it bear any positive results that could be used to justify the introduction of this plan? Opinions are divided and from practical observations, one can take any side, for instance one may say that it has boosted confidence or brought about the environment that an individual knows that if he invests in his property he can reap the benefits and does not have to share them with the community, it results in the individualisation of title and with that comes the element of security of tenure. It has brought land to the commodity market whereby one can easily transact with land for example. Depending on how one look at it, there are advantages and disadvantages. The fact that we moved from a position of corporate ownership to private ownership. Under the title no more than 5 people can be registered as owners of one piece of land. If we were to hold that absolute ownership give one person absolute rights, all the other members of the family would be depending on this person and if he decided to exercise his right as an absolute owner, he could decide to displace his family by selling the property and this is a disadvantage. The system is open to a lot of abuse. There are other social or cultural related vices like the moment you displace an entire group of people you invite them to involve in undesirable social ways which you have no control. With hindsight one may say that the creation or crafting this type of Estate may not have brought much because along the much touted advantages, we can also read in the advantages certain ills which nobody can quite explain how one can mitigate or get rid of. CREATION OF ABSOLUTE ESTATE PROPERTY THEORY.

In fee simple it is important to note that regardless of the way in which it has been created whether thro grant or conversion process involving long leases, the title thereto is ultimately all traceable to either the crown ordinance of 1902 or the amended Crown Ordinance of 1915 and subsequently the Government Lands Act. We cannot describe fee simple as an allodium where the fee simple estate does not pass in terms of transmission to subsequent owners as a result of failure to subsequent owners. The Estate accordingly reinvests back to the state because the radical title reposes with the state. S. 8 of the ELA expounds the doctrine of Escheat. In the case of an absolute estate, we do not have a similar situation. This is an allodium meaning that rights here flow from no law. The position under common law which makes absolute different from fee simple is that the need to maintain a strict control as to the ultimate ownership of land is considered an important attribute of sovereignty that position differs fundamentally from that under the Roman Law whereby the state did not retain the radical title to land and the citizens held the radical title to their land directly. This position brings us to a clause to Roman Law with regard to absolute estate in our situation to the extent that the rights that are acquired by the registered proprietor confer absolute rights on such a person to ensure that this particular distinction was maintained or through a conscious process by virtue of historical coincidence. There were a number of order in council that were promulgated by colonial authorities. The two important orders in Council are the Highlands Order Council and the (Kenya) Native Areas Order in Council which two enactments had the effect of designating the so called white highlands to the Settlers while at the same time creating the native areas for Africans. With regard to the former the radical title was vested in the colonial government whereas with respect to the latter, the radical title was vested in the Native Trust Board. Upon attainment of independence the Native Areas were renamed trust land and were constitutionally provided for in the Independence Constitution. The body that was in charge of the native areas was abolished and the trust lands were then vested in the various county councils round the country. Under the newly constitution arrangement, the position was that upon registration of any part of Trust Land, the County Councils in those jurisdiction where such land was located would cease to have any interest in the said land. The Native Areas were marked out to be distinct. To distinguish that arrangement from Native Areas that were not already under registration but were being considered for the process the creation of a Land Trust Board was to ensure that there was a management of trustee that would ensure that those who were entitled got their land. At independence the whole process was reorganised to ensure a transition or to maintain the same principles. The land trust board was scrapped off and replaced with county councils a body that would still carry out the same functions. The rights acquired from this arrangement were supposed to be absolute with no control from any external forces and the registrar took away the title from the county council and vested it on the proprietor and it is for this reason that an absolute Estate can only be regarded as allodium and this implies that upon demise of the absolute proprietor, the property does not escheat to the State regardless of whether or not this particular property had heirs to pass to. Under provisions of the ITPA the scenario in the event that there is failure of transmission due to absence of issues, the property would reinvest in the state and this is not the position in regard to absolute estate and

thus it is quite clear that this form of Estate is an Estate Sui Generis standing distinctly standing from fee Estate.

CREATION OF ABSOLUTE ESTATE The absolute estate is created by way of a first registration, ie.. bringing on board for the very first time the property in question under a registered regime as provided for under the Act. Consolidation and Adjudication where appropriate are important prerequisites are important for the registration to occur. We can have subsequent registration under the provisions of the Act where we may have conversion from other statutes to the registration regime created by the RLA. Further to creation through conversion, absolute estate may be created by what is called an inter-vivos or testamentary transfer, with the proprietor executing a transfer in your favour. The important question that arises is what is the nature of this process? This is appropriately addressed by S. 3 of the RLA which is rather restrictive. It requires that such transfer (S. 3 as read with S. 87) requires that a transfer made inter vivos should take effect immediately otherwise it becomes void. Section 87 specifies that a transfer shall not be expressed to take effect on the happening of any event or on the fulfilment of any condition or at any future time. What this effectively means is that any transfer for it to be valid must be effective immediately. Use of term taking effect must not be interpreted to mean taking possession, all that is required is that the rights must be immediately vested to the person to whom the property vests. So long as the rights vests immediately, for the purposes of the Act the requirement would have been fulfilled. Creation of future interest by the absolute proprietor during the time that he is alive, such future interests are created provided that there is an acceptable succession level which allow for such a possibility in the creation of reversionary leases. But under our laws by virtue of requirements of Trust Land Act Cap 290 if and when such future interests have been created, they would be converted to trusts for sale and the theoretical possibility remains just that. Since an absolute estate vests on the proprietor, it is the subject of succession. Inheritance of such an estate has a mode of having it change hands which is either by way of testate succession (succession regulated by way of written will) or through intestate succession that is one that occurs in the absence of a will. It is not a way of creating an absolute estate but whichever way it arises, the provisions of the Law of Succession act cap 160 cannot be ignored since it is the regulating statute. Under the provisions of the RLA it is noteworthy to remember always that all matters of testate and intestate succession are excluded or not covered by that Act. There is a disclaimer under S. 107 of RLA to the extent that not all matters of succession are covered by that act. S. 120 and 121 of the Act are repealed by Schedule 1 to the law of Succession Act to make it conform with general understanding that all matters of succession be exclusively be dealt with by the law of the Succession Act. Clause 26Schedule 1 of Law of Succession Act provides that unless it appears from the Will that only a restricted interest was intended to be passed, testamentary grounds are presumed to comprise the entire interest of the testator in particular the law provides that where such a grant concerns or property or land that was formally in the reserves and where it is made in favour of more than 5 people, Section 101 paragraph 4 of RLA mandates that no more than 5 such grantees be registered as absolute proprietors. The Law of Succession Act has more details on the mode of transmission in each case.

NATURE AND CONTENT OF ABSOLUTE ESTATE In comparison to the common law notion, absolute estate is in a class of its own. It is important for us to appraise ourselves of the full scope and the extent of this so called Absolute Estate. Section 27 of the RLA at paragraph A provides that an absolute proprietor is declared to possess all rights and privileges associated with such ownership and such rights include the right use, abuse and the right of disposition. The right of use Theoretically the right of use empowers the absolute proprietor in unlimited sense to do anything he pleases with such property without being subjected to conditions which would derogate from the enjoyment of such rights The right of abuse The right of abuse would carry the same notion such that the proprietor can do anything in respect of his property including engaging in activities as to alter the nature of the property whether for better or worse. He can commit waste whether permissive waste etc which are all within his mandate as the owner of such power. DISPOSITION The proprietor should be at liberty to alienate his interests in the property whether partially or entirely, whether absolutely or conditionally. This remains a right attendant to an absolute estate and there should be no restrained put in the exercise of this power. Under Section 28 of the RLA it is the position that the powers so conferred should not be liable to be defeated in any way except as may be provided in the Act itself. The section further provides that such powers are to be held together with all the privileges attendant thereto and free from all other interests and claims of whatever nature. The effect of Section 28 of the RLA is to preclude any limitations on the powers of the absolute proprietor which are emanating from outside the provisions of the Act. The general rule is that rights acquired, powers conferred cannot be defeated by looking to other external factors. The only exception to this general rule is those restraints that the Act itself provides for in the enjoyment of the rights acquired under absolute proprietorship. The Act is not short on those restraints and there are provisions that can be lodged against the title with the effect of temporary restraining the exercise of those powers or enjoyment of rights that absolute proprietorship brings to the proprietor, it is possible to have cautions registered against the title for reasons that would have to be acceptable in the accordance with the Act. They operate in the same way as in the fee simple estate, the circumstances that justify their acceptance for registration of title and the conditions under which they will remain in force are all similar to the conditions we have drawn in the Fee Simple Estate.

In theory therefore, the owner of an absolute estate has no reason to look over his shoulders because there is no one above that threatens or supervises the conduct of such an honour in the course of his ownership of this kind of Estate. Section 27 and 28 of RLA talk of powers conferred on the owner by legislation and which amplify the effect of their indefeasibility by other interests or claims which are not recognised within the Act itself. That is new as far as our approach to the concept of the Estate from common law is concerned. The question arising is how well or poorly have our courts done n terms of giving effect to the particular act that creates an absolute estate. It might be fitting to say that since it is fairly new, it is bound to come with its own difficulties and they have been considerable as our judicial experience illustrates. There has been contrasting decisions reached in connection with the application of the law relating to absolute estate and is requirements. Otherwise the jurisprudence as developed by our courts pertaining to absolute estate is somewhat in state of flux and that has led to a legal conundrum arising with regard to this important aspect regarding the issue of property rights and in order to appreciate the particular difficulty, one needs to look at a number of decisions which have involved the interpretation in particular Section 27 and 28 and other related provisions of the Act so that one can appreciate fully, the nature of problem at hand. In a bid to do that, the approach that has been adopted involves analysing or assessing these decisions based on the persuasion of the presiding court and that of course can best be achieved at looking at the various schools of thought in order to appropriately place differing interpretations regarding Section 27 and 28. for ease of analysis it has been suggested that 2 broad schools of thoughts have emerged the postivist school and the school that leans towards the natural law theories so that in effect we have the positivist interpretation on the one hand and the natural law approach on the other hand regarding this issues and their full effect. An offshoot of the natural law theorists we can talk of what has become customary law in line with the English view but these are connected with those who embrace the natural law theory. The broad theory of positivists is that in all situations involving interpretation of the law the approach to be adopted should be one that considers the law as it is, rather than the law as it ought to be applied to the problem at hand, the concept of absolute proprietorship should then be essentially interpreted to mean that anything which does not appear in the registered land act (RLA) is to be treated as an extraneous material and therefore should be accordingly shut out. In the Estimation therefore, the entire length and breadth of the Act largely leaves out customary law notions regarding property ownership and it follows that any claims that have as their basis those notions that are drawn from customary law should be considered irrelevant when it comes to giving effect to sections 27 and 28 of the RLA. In a nutshell the positivist approach would have been that any interest registered under the Act can only be defeated in accordance with the express provisions to be found in the act itself. Secondly, a first registration carried out under the Act is one that cannot be impeached i.e. it is indefeasible and accordingly cannot be impeached on any grounds whatsoever, their contention is that in time to give effect provisions of S. 27 and 28 literal rules of interpretation should be applied. Employing the literal rules would have it that the plain and natural and signification of words used in the statutes are to be given effect to this in their view is the only way of giving effect to the parliamentary intention or the legislative intention that if Parliament sought to bestow on the registered proprietor an absolute title, it is the duty of the court to give effect to that effect or nothing more or nothing less. A first registration undertaken under the provisions of the

Act which results in an absolute estate essentially extinguishes all interests other than those expressly noted in the register or those expressly provided for under the Act itself. The general rule is that in trying to give effect to these provisions, one should not look outside the letter of the law, it is clear intended to confer absolute rights and the court is duty bound to confirm that period. The only intrusion that would be entertained according to the positivists line of thought are with regard to those or specific exceptions which are themselves catered for in the Act and so should be recognised and those must be specifically provided for so that the provisions serve as the basis for departing from the general principle. The exceptions may be outlined under S. 30 of RLA overriding interests are expressly provided for and include easements, wayleaves, eminent domains, prescriptive limitations and recognised the rights of occupation. The proviso to section 28 makes mention of yet another exception that are recognised subject to the general principle of beneficial interests created under a trust. Beyond that it is the positivist contents that anything else not exempt should not form a basis of interpretation. Unless an interest is saved it goes with the registration and becomes extinguished. The strict application of this approach has had its share of disadvantages and has caused a lot of grief to many families especially with regard to those who believe that in the concept of ancestral land that it is governed by customary law. They get a shock of their lives when they discover that whatever rights they imagine they have over such land are non-existent from the standpoint of the positivists school of thought. The leading authority in interpretation is that first registration extinguishes all customary rights and cannot be cancelled on any grounds whatsoever is exemplified by Obiero v. Opiyo [1972] E.A. 227 the plaintiff had been registered as the absolute proprietor of the title in question in 1968 and in the register no encumbrances were noted. The defendants who were sons of the defendant with the cowives conceded that they had always been in possession of the suit property and they based their ownership purely under customary law. In a bid to bolster their case they argued that they had always worked the land since time immemorial and argued that the plaintiff the first wife registration in their view was obtained by way of fraud to the extent that the plaintiff never revealed their interest during the registration process. That sort of argument did not persuade the court and the court in its findings held that even if the registration had been procured fraudulently, the plaintiff’s title of first registration was indefeasible and the plaintiff’s title was subject to no encumbrances as the register reflected none and accordingly the title was free from all interests and claims and finally the court found that the rights of occupation inherent in the defendants which in any case arose under customary law were not overriding interests within S. 30 of the RLA and the court further held that such a right of occupation had been extinguished upon the first registration with the plaintiff emerging as the absolute proprietor of the suit property and in granting the plaintiff the relief sought i.e. damages for trespass and a permanent injunction to restrain the defendants from continued trespass the Judge had this to say “rights arising under customary law are not among the interests listed in S. 30 of the Act as overriding interests. Had the legislature intended that the rights of a registered proprietor were to be subject to the rights of any person under customary law, nothing could have been easier than for it to say so.” There are subsequent decisions that reflect the general trend ie.. the decision of … J. in the case of Esiroyo v. Esiroyo & Another [1973] E.A. 388 the judge relied on the judgment of

Obiero case with the result that the registered proprietor was allowed to evict his sons from land that was registered under him as the absolute proprietor. This case arose after Esiroyo had a bitter disagreement with his sons and threatened to disinherit them from the land. The relevant customary law was Luhya customary law regarding land tenure and there was evidence called to prove that under that system of law that they were entitled to a share. The customary law did not carry any favour and the court proceeded to allow the old Esiroyo to preclude his sons from having their share of the family land although the sons had proved entitlement to that law under the relevant customary law. In Ambale v. Masolia (unreported 54 of 1976) the Plaintiff in this case alleged that the land in question belonged to him but had been registered in the name of the Defendant thro an act of fraud. He argued that he was entitled to that property under the applicable customary law which said gave him the right to that right. unfortunately this was first registration and in determining this issue the court was emphatic that a first registration cannot be impeached for fraud and that customary rights are not overriding interests within the meaning of the Act and cannot avail in favour of the plaintiff. The case failed. Mbuthia v. Kimondo came to court from lower court by way of review and the same principle was used. Belinda Muraya v. Wainaina they all uphold similar positions. One of the reasons why Judges came to the determination that they did was because they were all Mzungus and were insensitive to the African way of life and could not appreciate the African way of life. This has been advanced as a justification for the courts having this determination. PROPERTY LAW CREATION OF AN ABSOLUTE ESTATE Natural law school of thought advances the thought that no legislature would have intended to create consequences so severe as those which flow from a positivist interpretation of the Act. To their mind the entire process of legislation after adjudication and consolidation has taken place was intended to clarify the issue of land held under customary law and the idea was to ascertain the question of ownership of such land as these particular areas had not been subjected to a registration regime and the idea was to bring them under a registration regime. The rights created in the course of implementing the process were rights based on customary law. In terms of determining their application and scope, one necessarily needs to fall back on the customary law domain to inform the task of ascertaining the enjoyment and exercise of these rights and it is only through customary law that one can determine that particular issue. What this school of thought subscribes to is the view that registration was never intended to make landless certain groups of people who had always depended for their livelihood on property communally held. The intention of parliament could not have been that people depending on communal property be thrown out and the property registered in the names of a few people.

The idea remains that of preserving those rights and interests and one of the most ardent proponents of this particular view is Mr. Justice Muli in the case of Samwel v. Priscila Wambui HCC 1400 Justice Muli makes a case for natural law interpretation by arguing that registration of titles is a creation of the law and one must look into the circumstances surrounding each case as well as customary law and practice with regard to land holdings in force at any given time in order to determine whether or not you can infer in the process of registration the existence of a trust. The institution of a Trust comes in handy to mitigate some of the inequities or harsh consequences which a positivist …. Would lead to in situations that involve communities that are essentially land based and very much dependent on land for their livelihood. The purpose of registration must in all cases be understood to be preservation of family land and not to disenfranchise other members of the family who may not have gotten their names registered. Consequently any person who is registered as an absolute owner of family land will unless the surrounding circumstances establish otherwise would be taken to be a trustee. Registration of family land leads to the person entrusted with the title being the trustee on behalf of all who depend on that land for survival. Two forms of trust can be inferred, customary trust view which is found in almost nearly all African communities, property ownership is that land is owned by everybody, the living, the dead, the unborn and cannot therefore be converted into an absolute proprietorship merely through the tick of registration. Land being a commodity of property, generations, it cannot be the case that merely by applying a stroke of registration that you can change that position so as to make it the property of one or a few people. The process of registration against this background should not be considered to have been intended to expropriate family land and leave it in the hands of the individuals. The process of registration appears to have been to guarantee the rights of all members with a stake in that property and hence the customary law trust view. Accordingly the individual registered as proprietor holds the same as a trustee and not an absolute tile holder. This trustee arises from the customary law view which says that all family members are entitled to a share or right of access and therefore you cannot kick them out by a tick of registration. There are cases that have held that particular view, Mwangi Muguthu v. Maina Muguthu, unreported CA 337 OF 1968 this case specifically mentions that according to the Kikuyu customs, the notion of trust is inherent and so even where a person is registered as a sole proprietor of family land without the express mention that he is registered as a trustee in the register, it will not befit the influence of a trust in that sort of arrangement because the Kikuyu customary law has the notion of trust inherent in it. Hosea Njiru (1976 E.A.L.R) Simpson J. recognized existence of a customary trust and ordered the defendant to execute a transfer in favour of the plaintiff notwithstanding that this was in respect of impeachable absolute first registration title. Limuli and Sabei case unreported H.C. C 222 OF 1978 where the court noted that unless a contrary intention is shown a customary trust is to be presumed under S. 27 and 28 of RLA once it is shown that land in question is family land. The other notion of Trust is invoked in the so called English Trust View. English law has express trust, constructive trust, implied trust and resulting trust. All these are well-defined

doctrines under English common law. The general principle is based on the English trust view was stated in the Limuli case by Cotran J. he observes that it is now generally accepted by the courts of Kenya that there is nothing in the RLA which prevents the declaration of a trust in respect of registered land even if it is a first registration and there is nothing to prevent the giving of effect to such a trust by requiring the trustee to do his duty. Those duties are of course fairly well defined under the English Notion of a trust. The court is adverting that those principles will apply in our situation even where a first registration is the subject matter of litigation. ALAN KIAMA V. Ndia Muthuma (unreported) 176 of 1973 where Justice Law went so far as to find the existence of a constructive and express trust based on the same set of facts and in the opinion of the court this was necessary to mitigate the harsh consequences of the positivist interpretation of the provisions of the RLA in conditions which pit members of a family in some kind of war with one another in a society which is predominantly land based. To articulate the natural law theory is to abandon the express letter as worded in the statutes and emphasise more on the spirit rather than the letter of the law, the important point being that what would parliament have intended. The answer in the opinion of the natural law school is that parliament could not have wanted to render people landless and the interpretation must be consistent with that understanding. The bottom line is that parliament has not taken any legislative initiative to intervene and clarify or enact or introduce provisions to get rid of the confusion and until they do the position remains that we have the two different positions. INTERESTS IN RIGHTS OVER LAND ENCUMBRANCES: These are rights in alieno solo rights enjoyed in the land of another person other than the one entitled to enjoy such rights. The exercise of ones rights over his land,

1. Mortgages: 2. Charges;

These are a creation of statutes and have the effect of subjecting the property so burdened to some limitations which have the potential to defeat the registered proprietor rights of ownership with regard to such property. In our case, mortgages are a creation under the Indian Transfer of Property Act whereas Charges apply under the RLA exclusively. The ITPA and related statutes that draw from it is what we associate with mortgages whereas charges apply in the case of RLA. Both serve the same purpose and are in the nature of encumbrances that play a significant role in the capitalist mode of production. They feature prominently in borrowing transactions and it has been suggested that they perform certain functions in a capitalist economy which include allowing people in the periphery of the production process to be integrated into such a process. It has also been suggested that it is one way through which those desirous of owning homes can find an appropriate institution to enable them realise such ambitions so as an institution it facilitates that kind of desire. It serves as a way of reallocating property rights in the society in the sense that probably in the case of a defaulting party where a loan has been advanced, the property becomes available to be sold in the common market as well as guaranteeing that the

person advancing the loan does not lose out but it makes available the money to acquire rights over property subject of sale. The circumstances under which mortgages and charges can be said to be encumbrances is what entails. Anybody desirous of borrowing money has to offer security and land is one of the recognised means of offering security and you have the property mortgaged or charged by drawing a special instrument that conforms with the respective requirements of the law and you have it registered against the property you put up as security. Provided that you benefit from the financial accommodation you must perform all the conditions you sign up to and there are duties placed on the financier but the fact remains that your interest in the property has not been done away with and you retain a bit of that. When the debt is paid you are entitled to a clean title and you are discharged from liability. As long as you have not paid, there are activities that one cannot engage in because of the burdens that the property suffers from under that arrangement. In terms of genesis and revelation of mortgages and charges, we have to note that we get the concept from the English law regarding that aspect which is very similar to the position under Roman Law where the mortgage institution is thought to have first evolved. Under Roman law, it took the form of what was known as fiducia and this was a form of fiduciary arrangement or relationship between a lender and borrower, property in question was given to lender in return for financial accommodation that had been sought and if the borrower defaulted, the party’s obligation, there was forfeiture to the lender regardless of the value of the property in question. The institution also manifested itself in pigmus and entailed transfer of possession of property in question but without the element of forfeiture that is part of fiducia. When there was default, the property in question was merely sold and not forfeited and the idea was to recover any sums that were outstanding and the accrued interest. There was no forfeiture. The third form which exemplifies this institution under Roman law was the Hypotheca and this entailed making a pledge with reference to a specified property but without the effect of the borrower having to deliver possession thereof. The creditor had vested in him power of sale which he could exercise in event of default by the borrower and the catch was that upon exercise of power of sale there was a requirement for the creditor to render accounts as to how the proceeds realised had been applied and the borrower had to know how much had been realised and any sum realised in excess of what was owing had to be turned over to the borrower. This brings us to modern day practice in respect to mortgages and charges. Development of this institution was linked to the doctrine of Estate and it was manifestly in form of usury as far back as in the 13th and 14th century and it entailed lending money to those who were in need but under very unreasonable conditions which for instance called for payment of high premium rates in form of interest and had the trappings of a certain default on the part of the borrower because the element of high interest returns ensured the outcome and consequently borrowers in almost all cases hardly ever met their repayment obligations and the lenders ended up taking over the property. It became unpopular with the people and the English parliament had to outlaw the practice all together but English lawyers are never short of tricks and evolved yet another institution of a pledge shortly after usury was outlawed and the basic idea was to offer land as security for a loan. Two forms of a pledge, the so called

living pledge and a dead pledge. Under the living pledge, lender took possession of property in question and received any benefits accruing such as rents and profits and the arrangements lasted till the repayment and interest was fully paid. Under dead pledge lender only received rents to be applied towards offsetting the interest accruing and continued until interest was offset. The notion of conveyance by 19th century had been introduced whereby the borrower’s interest would be conveyed to the lender on condition that upon full payment of debt there would be a re-conveyance of the interest back to the borrower. Such re-conveyance would be defeated if there was a default on the part of the borrower for this would lead to forfeiture of his interest in the property. Through or reinventing the old institution, replacing usury with pledge and refining it further, the practice outlawed by parliament was back with the blessing of the law as no one found contracting wrong. The rest of it is what we added to under various statutes. PROVISIONS FOUND IN ITPA, RLA AND OTHERS The Mohammedan law frowns on the element of charging interest and finds it alien and oppressive and as a direct reaction, their own form that closely associates to the mortgage institution is one supposed to be free from the element of charging interest. The Byebilwafa which closely appears to be the equivalent of the English law institutions and apart from their aversion to charging interest, what is required is that the borrower is to pledge the property to the lender, and undertake to make good the debt in return the lender is vested with the right to take benefits such rent from property with no requirements to account but to apply such benefits towards offsetting the principal amount owed. Question of interest accruing does not arise, once that has been done the borrower’s obligation ceases and he is entitled to have his property back. CREATION OF MORTGAGES & CHARGES There are certain general principals that apply and they are essentially statutory requirements.

1. A Charge/Mortgage must be evidenced in writing under Cap 23 and any purported instrument that is intended to pass as charge/mortgage is ineffective unless it is in written form;

2. Mortgage/Charge must be in a prescribed form or instruments provided for under various legislations which allow for creation and they must be registered under section 59 of ITPA and 65 of RLA

3. Instrument must contain acknowledgment signed by borrower to the effect that he understands the effect of the transaction in particular the fact that upon default in repayment, the property will be subject to sale as applied under S. 74 of RLA.

4. where the repayment date is not fixed within the instrument creating the particular encumbrance, it is the case that the date arising in the case of a mortgage created under ITPA shall be payable within 6 months after receipt of demand notice and in the case of charge created under RLA within 3 months after receipt of demand notice.

The obligations of the parties are standard and the lender is confined to having the security and realising it in case of default or reconveying the property back to borrower if security offered has been dealt with. The bulk of obligations are with the borrower if the transaction is to work along the rules created. The borrower must honour his obligations which may have arisen prior to the charge. The borrower must also pay all rates and taxes because the question of ownership remains with him and he must ensure that the property is in good repairable condition a requirement meant to safeguard the lender’s interest so that it does not lose value. Property value is central to the institution since for the statutory powers of sale bank on the property being the same or better than when the transaction was done. SERVITUDES: Doctrine of Servitudes The questions of servitudes are closely related to encumbrances in the sense that they are rights in alieno solo and effectively burdens upon land belonging to another person. Various categories of servitudes that are enumerated as follows:

1. Easements; 2. Profits á prendre 3. Restrictive Covenants

EASEMENTS S. 3 OF RLA defines easements as a right attached to a parcel of land which allows the proprietor either to use the land of another in a particular extent but does not include profit. This essentially makes easements to be capable of being either positive where they allow use of another’s land in a particular manner or negative where they introduce an element of restraint and restrict an owner from using his land in a particular manner. Under the ITPA there is no definition of Easement the reason being that there is an easement act the Indian Easement Act which provides adequately for this aspect. Under provisions of S. 30 it is clear that easements qualify as interests of overriding nature examples envisaged are a right of way or right to natural light and therefore essentials to be met for the existences of an easement there are 4 essential elements for one to talk of valid easement.

1. There must be a dominant tenement and a servient tenement. The dominant tenement is the one for the benefits of which the easements in question exist and the servient is the one over which the easement is exercisable or the one burdened by the easement;

2. The tenements must be owned by different persons, the definition of easement necessarily points to the fact that one cannot have an easement over his own piece of land and there has to be a situation involving different proprietorship. There is no unity in terms of ownership.

3. Easements must be capable of accommodating the dominant tenement, i.e. the sort of rights arising should be rights capable of being normally enjoyed and should not require carrying out of extra ordinary measures to ensure that they are enjoyed e.g. a right of way it should suffice that one can traverse to and from

across the land and does not require one to be built for extra ordinary things it should be at no extra effort at the party that is burdened. It should accommodated in a

4. Easement must be capable of forming the subject matter of a grant and here what is required is that the ownership of the servient tenement should be such that an owner can lawfully grant rights and similarly the person receiving the granted rights must be capable of receiving and enjoying the benefits that go with the grant. The right must be certain meaning that the extent or scope should be possible to draw and know how much in terms of rights can be exercised.

Easements are created by statutory grants through an instrument in the prescribed form or by reservation under Section 74 of RLA. They may be acquired by the operation of prescriptive laws such as adverse possession and the provisions of S. 32 and 38 of Limitation of Action Act are relevant. Section 97 of the RLA enumerates various modes of terminating including executed release in the prescribed form. Occurrence of some condition precedent can also bring an end to enjoyment of an easement, through a court order or where the easement in question has ceased to have any practical benefit. An easement is meant to confer a right to a person other than the owner of the property so if the benefits cease, it should not exist. Termination occur where no injury occur to the beneficiary of such a right. PROFITS Á PRENDRE Referred to under Section 3 of RLA which defines profits as a right to go on land of another, to take a particular substance from that land whether it is the soil or products of the soil. At once it becomes clear that unlike in easement, a profit entails the taking of something from another’s land, something capable of ownership that is taken from the servient tenement. The right may also exist in relation to specified piece of land. In terms of nature, we may say that the point of departure between easement and profits is whereas easement must be pertinent to servient and dominant tenement at the same time, a profit need not be as it is a right that does not need the beneficiary to be the owner of the dominant tenement and can come all the way from wherever and all it entails is the taking away of something and off he goes. In terms of creation, profit may be created either by an express grant or by prescription. Where it is created by an express grant the provisions of S. 96 of RLA the section provides that an owner of land may grant a profit. When that is done the instrument granting the profit must specify how the profit is to be enjoyed, whether it is to be enjoyed alongside with other similarly placed beneficiaries. Prescription may also lead to acquisition of the profit just like in the case of easements and for that to be effective it has to be formalised by way of registration in accordance with S. 96 (3) the requirement of registration is mandatory unless the right was acquired before a first registration.. if acquired before a first registration, what happens is that it acquires or assumes the nature of an overriding interest in terms of S. 30(e) of the RLA.

Termination There are 3 ways in which a profit can be brought about

1. Unity of seisin which involves acquisition or ownership of the servient tenement by the owner of the profit at which point the question of enjoying the profits ceases. Enjoyment of profit presupposes going to another person’s land. (unity of seisin is ownership of two plots of land by the same person. Easements and other rights of servient tenement for the benefit of a dominant tenement are extinguished if both tenements come into the same ownership).

2. Where profit is pertinent to land it terminates through unity of both tenements. 3. Release that is duly executed and evidenced in writing, 4. Alteration of the dominant tenement in such a way that it cannot support the

exercise of such a right so the alteration must be such that it alters the nature the dominant tenement and is completely overhauled and there is a presumption that any right that existed must be distinguished.

RESTRICTIVE COVENANTS: These are often referred to as negative easements to the extent that they restrain the activities of the registered proprietor as to what he can possibly do within his land. In the event the place curves on the free exercise of the proprietors powers and freedoms in relation to his land, they in effect introduce an element of curtailment of enjoyment of ones rights in relation to his own property and that restraint is intended to benefit all persons other than the proprietor himself. Examples which give rise to restrictive covenants may include situations as landlord/tenant relationship or situations involving owners of adjoining properties or estates. What happens is that the restriction on ones activities in regard to his own property are such that if they are in relation to the (if it is a neighbourhood that is peaceful, there may be a covenant that precludes one from doing or initiating certain forms of developments which would be inconsistent with the general use to which that particular neighbourhood is earmarked. As long as the restrains are in place, one should enjoy rights of use and abuse, or even destroy, right of support that ones property that the neighbour expects from you, you cannot for example tell the neighbour that you will destroy your land because you might interfere with the natural right of support that the neighbour accepts by reason of being your neighbour. Areas that can be subject matter of restrictive covenant are many. The landlord has a lasting stake in ensuring that the property is maintained in some form and the tenant will have a number of covenants and conditions binding the tenant to observe certain things. Provisions of Section 95 of RLA require that covenants be noted against the register of titles affected for them to be enforced in particular s. 95(3) (a) which provides that notification of covenants in the register make them valid if they were otherwise invalid. They must be issued by people with capacity to issue and grant them to those in a position of enjoying such rights.

Section 40 of ITPA has the position that benefits and burdens of restrictive covenants run with the land since the rights are supposed to benefit the property. The effect of change in ownership is not material. It is the property that is supposed to benefit. Termination – they can be extinguished in the same manner as easements and profits. PROPERTY THEORY (i) CONCURRENT PROPRIETORSHIP

- Tenancy in Common - Joint Tenancy

(ii) DOCTRINE OF EMINENT DOMAIN (iii) LEASES AND LICENCES DISTINGUISHED

CONCURRENT PROPRIETORSHIP Arises where two or more persons have a spontaneous rather than consecutive interest in the same property at any one time and so what is involved is co-ownership. The important distinction to draw with regard to co-ownership is the fact that it does not entail the successive enjoyment of interest in the property in question because that is the domain of consecutive proprietorship or arrangement with regard to interest in property.

There are two main categories or forms of co-ownership. In fact there are 5 possible divisions that one could come up with. We shall look at 3 1. Tenancy in common; 2. Joint Tenancy 3. Tenancy by entirety

JOINT TENANCY This form of co-ownership is created where there is unity of title, unity of interest, unity of possession and unity of time. The four unities are essential for a joint tenancy to arise. The 4 unities must exist concurrently and all of them must vest in more than one person as a requirement under common law. In our situation the statutory position may introduce certain changes but in common law position, it requires that the 4 unities be concurrent and vest in more than one person. The most prominent characteristic feature in this sort of co-ownership is the right of survivorship. This essentially means that upon the death of one of the joint tenants, the shares of such a tenant devolve to the surviving tenant or tenants and that is automatically triggered as a matter of law upon the death of a joint tenant. The result is that the heirs or descendants of the departed joint tenant or his personal representatives have no right to accede to his interest in the property upon his demise. That position is amplified under the provisions of section 102 of the RLA. Of course for that position to be upheld there is further requirement that proof of the death of a joint proprietor be furnished to the registrar in order to effect the resulting devolution. That being the requirement under Section

118 of the RLA where both or all the tenants die in circumstances giving rise to a situation where it is impossible to establish which one of them died first. The provisions of S. 43 of Law of Succession Act come to play and that Section raises a presumption as to the order of the death i.e. in order of seniority or age such that the younger joint tenant will be presumed to have survived the older joint tenants. But care must be exercised in invoking this exercise and it is a requirement that it should only arise where it is uncertain as to which of the joint tenants died first. At common law joint tenants are collectively regarded as one entity with each of the tenants owning the undivided call consequently their interests are equal in all respects in other words each tenant holds nothing by himself and at the same time it is true to say that each tenant owns the entire property with each other and whether or not such a tenant takes everything and nothing will ultimately depend upon whether or not he is the last to die in terms of the application of the principle of survivorship. Death effectively extinguishes the interests of the departed joint tenant. That being the case it is not possible for the shares or interest of a joint tenant to pass under a testate or intestate succession for in both cases the rights of survivorship take precedence. A will duly executed in respect of property that is the subject of joint tenancy would consequently be incapable of passing the necessary rights or interests. The 4 unities are essential as precondition to having a valid joint tenancy. The implications of each of every one of those 4 unities As regards unity of interest, it is important that the period and nature of the interest of the holders be one and the same. No joint ownership would therefore arise where one of the joint tenants for instance holds a lease whereas the others hold a free hold estate or absolute proprietorship so that all the joint tenants must have identical interest in the property for this particular requirement to be fulfilled. Ideally this requirement would be easily met where they acquire ownership through a similar process which would vest in them identical interests for the same duration of the same nature and of an equal extent. Unity of Possession This means that each of the joint tenants must have a right to possession of the entire property. Each of the tenants is entitled to possession of every portion as well as the whole of the property. Property is not as it were divided into different portions with specified sections thereof belonging to a particular joint tenant. That effectively leaves it possible for the property to be owned globally by all the joint tenants. None of the co-owners has a better right to the property than the others and that is because each of them is as much entitled to possession of any part of the property as the others and therefore cannot claim any rights of an exclusive nature with regard to the property or part thereof.

Unity of Title This essentially requires that all joint tenants must acquire the title in question by the same instruments or thro a joint process such as for instance prescription or adverse possession.

This means that under no circumstances would a situation of joint tenancy arise where that or those requirements are lacking. This requirement is in most cases met if all tenants acquire their rights thro the same conveyance where they take the same title simultaneously.

Unity of Time This simply requires that the interest of the joint tenant must have vested at the same time. What this therefore means is that the interest of each one of them must be acquired or vest at the same time or simultaneously for this particular essential to be met.

TERMINATION In terms of termination, joint tenancy may come to an end by way of severance of interest jointly owned. S. 102 of RLA is relevant in this regard. It provides that any joint proprietors not being trustees may execute an instrument in the prescribed form or signify that they agree to sever the ownership and such severance shall be completed by way of registration of the joint proprietors as proprietors in common and thereafter by filing the instruments. Joint tenants can change their tenancy from tenancy in common through a mutual agreement to that effect. The result of such an exercise is to destroy one of the unities that are essential for the validity of joint proprietorship so that it is converted to a tenancy in common. TENANCY OF CO OWNERSHIP/TENANCY IN COMMON The type of co-ownership involved here is one whereby the proprietorship is of separate but undivided shares in the property that position is catered for under S. 103 of RLA. The right of survivorship that we talk of in joint tenancy does not arise. In the event therefore of one of the proprietors perishing, his share can devolve to his descendants and that is possible because the tenants here have separate or distinct shares but of an undivided nature in terms of the interests involved. Only one of the unities is essential and that is the unity of possession and the rest need not be present for this form of co ownership to be valid. Devolution of shares of a departed proprietor is possible because the size of each of their shares is fixed once and for all and therefore the death of one of the companions does not in any way affect arrangement. During its subsistence none of the tenants can be in a position to pinpoint any particular portion of the property as exclusively his that is of course deducible from the fact that this form of co-ownership involves owning a single property which has not as yet been the subject of division as amongst the proprietors involved in that arrangement. It is the position that a proprietor under tenancy in common cannot deal with his undivided shares in favour of any person 3rd party other than the companions or the other proprietors with whom the co-ownership subsists. The only situation which would allow for that is where there is express consent granted to a proprietor in common authorising such dealings. There is always the requirement that if and when circumstances are ripe such a requirement should not be unreasonably be withheld. TERMINATION

This may arise through 2 ways

1. Partition or 2. Sale

Partition In partition of property, the property is divided up and shared out amongst those entitled proprietors. Partition can take place on the application by any one or more of the proprietors or at the instance of any person in whose favour an order has been made by the court for the sale of an undivided share in the property or in execution of a valid court decree. The process is completed by closing the register of the unpartitioned property and opening separate registers for the new parcels which arise following the partition. S. 104 of RLA provides for opening of new registers in acknowledgement of the changed circumstances and the owned property having disappeared its register has to be closed.

Sale The proceeds realised from a sale is what is divided amongst or between all those who are entitled. Of course that takes care of everything and there are no further steps to be taken thereafter. Sale would be the alternative where partition is not possible and the court may order for the sale of property in question and in the process of such a sale, any of the proprietors in common are entitled to participate and bid with a view to purchase the property either through the process of a public auction or by way of private treaty. S 104 of RLA recognises those scenarios. TENANCY BY ENTIRETY This form of co-ownership is only capable of creation as between spouses. When and if such a tenancy arises, it confers marital interest in the property to the parties, tenants, husband and wife so that apart from requiring the existence of the four unities in joint tenancies, there is a 5th unity that must be in place for tenancy of this kind to arise, that is marriage. Under this form of co ownership both spouses are considered to hold the property as one person and that of course is mainly because of the common law position which holds husband and wife to be one in law the one being the husband. Upon the death of one of the spouses, the remaining tenant enjoys the right of survivorship, so strict is the application that neither of the tenants can during their lifetime defeat such a right for instance by way of conveyancing their interest to a 3rd party. Such an exercise would be held void and can only be validated if both tenants are involved. Where a conveyance of property has been made in favour of spouses, common law presumes the existence of intentions to create a tenancy by entirety in the absence of some clear indication to the contrary. This is not addressed by the RLA so the position we fall back on is that of common law as this is not directly addressed by the RLA. TERMINATION

This co ownership ceases where one of the unities required for its validity ceases to be in existence a divorce would effectively terminate. DOCTRINE OF EMINENT DOMAIN The powers involved here give competence to the state to take over property which is otherwise privately owned for purposes of meeting some public requirement, public use is the guiding or the operative element of the exercise of these powers. It has been suggested that such competence is inherent in any government and on the strength of its exercise the state can compel transfer of property from private hands for purposes of re-allocating the same to governmentally preferred uses otherwise known as public purposes. Most or legal jurisdictions concede that there is a pre existing power of this nature which vests in the government or in other entities which are vested with governmental powers e.g public utility bodies or authorities. In terms of origins it is important that eminent domain is traced back to ancient Rome where it has been suggested that the practice of taking private property for public use was widespread. It entailed seizing private property subject to certain conditions mainly payment of compensation and there was the public purpose element in such an exercise of the powers entailed. English sovereigns picked up the practice from ancient Rome and are known to have enjoyed similar powers initially without any mandatory requirements as to its exercise e.g. there are incidents when private property would be seized for the purpose of meeting some needs in the royal household which by any description cannot pass the public purpose test required and without offering any compensation so that initially it manifested itself in form of an unbridled prerogative whose exercise was subject to … or no conditions. Over time the parties in the exercise of these powers seems to have changed and under the English system, the British parliament was instrumental in that change and from time to time it would approve payments of compensation in all cases involving appropriation of private land for public purpose. In our case we trace our similar powers from that colonial legacy. The state may in certain instances compulsorily acquire property of any description subject to fulfilment of certain preconditions which may either be constitutionally set or imposed by statutory law. Section 75 of the Const. is instructive in this regard and it guarantees the right to own property and at the same time protects property owners from being deprived of that right so that in the exercise of these powers, regards must be had to this conditions and the preconditions must be fulfilled. The preconditions are

1. Property must be shown to be required for public benefit; 2. That on a balance of convenience the balance should be such that it justifies the

concurrent hardship that is visited on the property owner so affected; and 3. Upon the exercise of such powers, of compulsory acquisition of the property of an

individual, there must be prompt payment made in full compensation to such a property owner.

The Land Acquisition Act Cap 295 is the most relevant legislation as it provides the machinery that facilitates acquisition of private owned property and it in particular empowers the commissioner of lands upon due notice in the Kenya Gazette and upon the payment of full compensation to all persons having an interest in the property to proceed and acquire any piece of land which the Minister is satisfied is required for public use. Every person with an interest in such property enjoys a right of redress and direct access to the High Court for the

determination of such interests, the legality of the intended acquisition and as regards the question of prompt payment of full compensation. In the exercise of powers of eminent domain, under the Const S. 75(5) exempts property which is owned wholly by the government or by corporations or governmental bodies formed for public purposes. Property falling under these categories cannot be subject of acquisition. The exercise of powers of eminent domain are essentially an exercise that involves taking private property and it cannot be eminent domain at play if you direct the powers attendant thereto to other uses other than taking of privately owned property. Section 75(5) provides for a confirmation that eminent domain relates exclusively to the taking of private property under the relevant conditions. The rationale has attracted justification to justify its existence. One of which is that sovereign states have had original jurisdiction of property long before the properties found themselves in individual hands so that individual possession must be seen to derive from grants from the state. Even as the state issues grants to individual owners, there is the radical title that is retained by the state and that provides a lever of control which enables smooth operation in regard to land use. Since it is the state that initially issued the grants to individuals, there is reservation that the state might at some date in future resume ownership of that property and so it should be no surprise when the state unleashes its power of eminent domain to take back the property Every sovereign is vested with prerogative in form of taking powers and that prerogative justifies the exercise of eminent domain powers with regard held of any tenure. In terms of addressing other crucial elements apart from public purpose requirement, there is the element of compensation and the question is why pay for such property? Why offer compensation if you can rationalise the exercise of these powers, is there in law a general requirement to offer recompense of any kind and if that is answered in the affirmative, why there should be compensation, the practice in all legal jurisdiction tend to suggest that there seems to be a requirement that just compensation be made in all cases involving the exercise of eminent domain powers. A number of rationales have been offered to justify this position ranging from the natural law argument which revolves around the issue be a moral imperative as a moral imperative it is only fitting that full indemnity be availed to the private owner as may be the subject of compulsory acquisition. There is also the private incentive ground which has been invoked that compensation must be made available so that private investors would not be inhibited from being partners in development. Inhibition can arise when there are fears that the govt can any time interfere with and take away the fruits of their private ventures without offering any compensation. There is the valid ground that has been espoused that requirement to offer compensation would in all likelihood deter or restrain an overzealous govt from pursuing ambitious public projects some of which may be white elephant projects simply because it has the powers to seize private property and apply it to such use. Requirement of making just compensation can deter any prospects of such an ambitious adventure on the part of the govt. There is also the ground that argues that offering compensation is in fact a dictate of the requirements of equity and equity by its very nature advocates for fairness and it would be unseemingly for a govt to

seize private property belonging to private individuals whom they have sunk in a lot of sweat and effort without offering them any consolation in the form of a just compensation based on the market value of the property so compulsorily acquired that would offend anyone sense of fairness so compensation comes in to mitigate. Finally the idea that there are certain groups of people who may be powerless in the face of the wide powers that eminent domain comes along with, a situation that pits individuals against govts is comparable to David v. Goliath scenario and you need to give a little bit of help to David as in being charitable which is satisfied by compensation. SAFEGUARDS AGAINST ARBITRARY POWERS OF EMINENT DOMAIN Powers available through public domain. It is the case that taking of private property must be based on a public benefit sort of test which it must pass and it is not enough to demonstrate that the user to which property is redirected is public use but it must go further. The inconveniences or the hardships that an individual private owner has to be put through must be not compared to public good that arises from compulsory acquisition. A proper interpretation of these powers would be that the state may not acquire property or private parcels and that is regardless of whether or not it is willing to pay compensation for such acquisition because this would amount to improper use of the statutory power conferred and would amount to an infringement of the constitution. The requirement that private property shall not be acquired without compensation is a safeguard. LEASES & LICENCES One has to avoid the temptation of bunching the two or confusing one with the other. The essential validity of leases which were earlier outlined in this course serve to distinguish it from licences. A lease must have essentials for it to be valid. One has to be sure of the definition of lease so that one can point out when one is dealing with one and not the other. Section 105 of the ITPA defines a lease as a grant of a right of exclusive possession of a defined piece of land for a certain or for an ascertainable period of time. In all cases for lease to be valid, it must bear those 4 essentials i.e.

(i) requirement of conferment of right of possession; (ii) requirement that it be made in relation to a defined premises; (iii) requirement that it pertains to a definite period of time and (iv) that the period be one capable of being ascertained.

What is entailed in exclusive possession? This requires that the landlord gives possession free from any control emanating from his end or through persons claiming through him. It is not a lease where a tenant is lacking in this exclusive possession requirement. The trick is that one may have exclusive possession but less that what a lease requires. One can have exclusive possession as a matter of privilege in the nature of a licence which may be revoked at any time. The requirement of defined premises is essentially a requirement that a lease created must pertain to a definite interest in the property which can be determined and which is capable of

being a subject of an assignment. One should be able to assign the interest to another party with regard to specific premises. Requirement of time to be capable of being defined means that there should be a beginning and an end. What are the frontiers of the leased out areas. LICENCES Something that is much less in terms of interests or rights conferred. It should be understood as allowing the person entitled to enter upon land of another person in circumstances that would ordinarily amount to a trespass to land but for the fact that there has been permission granted. Licences make lawful that which would be otherwise unlawful. A licence in its inherent nature cannot be sufficient basis for passing of an interest in property or land. It is incapable of accomplishing such a feat. Licences may be created expressly or by implication. Section 100 of RLA provides that a licence cannot be registered and hence the contention that it is incapable of passing an interest or Estate to the person entitle which is a matter of law must be passed through a registered instrument. This sets is apart from a lease. A licence is incapable of conferring proprietary interest to the holder. It is a position at law that unless a licence is coupled with an interest, it cannot be assigned. Licences at most confer contractual rather then proprietary rights. A licensee’s rights are rights in contract and not rights in the property. Rights in question and duties involved are confined to the parties to the contract and not to 3rd parties. This means that the position of bona fide purchaser for value without notice will not be concerned with existence of a licence relating to the subject matter. Section 100 (2) is an effective value consideration unless the licensee has taken steps to protect his interest by lodging a caution to protect existence of such an interest. DIFFERENCES

1. Quality of interest or the extent conferred by each. 2. Likelihood of passing over such interest through sub-letting which is possible in a

lease. 3. Privity in case of a licence and not in a lease. Leases survive parties. 4. A licence is incapable of serving as a vehicle of passing property whereas a lease

can. It is imperative that intentions of parties be established so whether a lease or licence that has been created is an issue that depends on the intentions of the parties and the circumstances of each case and the terms of the arrangement. The ultimate test lies in identifying the criteria to determine which one of the 2 is in operation.

INSTANCES INVOLVING NON-REGISTRATION

JUDICIAL RESPONSE: In relation to the law of registration, to documents it is clear that registration plays a number of roles in property system. The passing of interests and rights from one party to another. It serves as a documentary manifestation of land as a commodity. It provides information regarding the quantum of rights in land. It also gives us a framework for easy transferability of such. What happens in an event of failure to register a transaction which is compulsory registerable? Our registration provides for compulsory and obligatory registration. The functions that registration as a process provides cannot be overemphasized. In the event of failure to register a transaction which is by law compulsory registrable, it should follow that a number of set back or adverse consequences could be attracted. We have noted that our registration system provides for both a compulsory registration regime as well as one that is optional. In those situations where registration is obligatory as a matter of law and what would be the fate of transactions carried out without complying with the requirement to register. We all know the law as laid down emanates from the legislature. In terms of interpreting the same it is to the courts of law that we look to and therefore the sentiments expressed by courts in those instances become relevant at least in that connection and indeed the courts are from time to time had occasion to consider the effects or consequences of non-registration in situations that require compulsory or registration of instruments and in the process they have evolved what in effect amounts to judge made law in the form of a set of rules with regard to this particular aspect. The English position in this regard is exemplified by the decision handed down by the courts in the case of Walsh and Lonsdale (1892) 21 CHD 9 – (in this case, a landlord contracted in writing to let a mill to a tenant for 7 years. The parties agreed to execute a formal deed of lease. At any time the landlord could require the tenant to pay a year’s rent in advance. The tenant had entered into possession, paid rent quarterly in arrears but did not execute a formal lease. The landlord demanded a year’s rent in advance, the tenant refused to pay and the landlord attempted to distrain for it. The tenant argued that he was merely a tenant from year to year and that no lease had been executed and thus, he could not be required to pay 12 months in advance. The tenant’s contentions were rejected by the court which said that a tenant in possession of premises under a specifically enforceable contract for a lease is in the same position in Equity as if a formal deed of lease had been executed and so the landlord’s use of distress was lawful. This case represents the locus classicus in regard to this particular issue or in the same manner that one talks of Ryland V. Fletcher with regard to liability. It is in Walsh that the English Law courts formulated the applicable rules. What was in issue in this case related to a case of an unregistered lease which was otherwise by law required to be compulsorily registrable and the matter which came up for determination where no interests could be conferred relying on an unregistered instrument and after the court considered the issue at length it came up with the following pronouncement in terms of the applicable rule Where a tenant has taken possession under an unregistered lease agreement, which is capable of specific performance such a tenant is deemed to hold under the said agreement as if a proper valid and perfect lease had been granted. In this particular case the court was concerned with the efficacy of the arrangement rather than the legal technicalities and so

where the transaction was one of the kind that could be implemented it did not matter at least in the opinion of the court that there were flaws in as far as formalising arrangements was concerned. The court was guided by the equitable principles. The Kenya position is a bit different although not completely different. We have a statutory intervention which specifies the categories of leases which must as a matter of law be submitted for registration. There are others that are exempt beyond that the requirement of registration comes into operation and in our position the general principle under property law is that no interests or rights or estate in land can be passed, effected or otherwise created by way of an unregistered instrument where this is a legal requirement. By the same token no burdens or covenants that adversely affect the enjoyment of rights and interests in land can be created by way of an unregistered instrument. The above position has not restrained our courts from applying what is to all intents and purposes the principles enunciated in Walsh and Lonsdale and this has been necessitated by the need to dispense justice and so the application of that doctrine has been somewhat sneaky and circumscribed by reason of statutory limitations which we have in this country. In situations involving non-registration of instruments which ought to be registered as a matter of law the courts have strived to give effect to the arrangement as far as the period where there is no requirement of compulsory registration. Where for instance there is a lease that is created for 4 years and under our laws a lease that is less than 12 months need not be registered, but any period above that for which registration must be effected has not survived and it has been possible for parties involved in an imperfect arrangement i.e. where one is required to benefit from the regime that does not require registration, it has not been favourably looked upon by the courts. It is clear from the number of decisions that our courts have handed down. We have limits placed by statutes and we have to observe the maximum period for which registration is not required as a matter of law and give effect to that disregarding any period over and above that. A number of cases illustrate the Kenyan position. Bains & Chogley (1949) EACA 27 The issue here was that the landlord purported to lease out certain premises for manufacturing purposes for a period lasting 5 years through an unregistered instrument and a dispute arose ending up in court. In the opinion of the court the lease though not registered was valid as a lease from year to year which does not attract the requirement of compulsory registration and was therefore subject to the provisions of the ITPA including that of giving 6 months notice where there is desire to terminate the arrangement. In spite of the fact that there was no registration it was possible for the rights and interests conferred to be enjoyed by the tenant but purely on the understanding that that arrangement would be confined to a year to year tenancy and not the whole duration of tenancy. Merali V. Parker (1956) 29 KLR 26 The issue was one involving the effect of non-registration of a sub lease for which there was a legal requirement for registration. In the observation of the court and with regard to the provisions with sections of the GLA the effect was that whereas evidence could not be adduced in court from such an unregistered document to prove existence of a lease for more than one year, such a document could be relied upon to prove the existence of an agreement for a lease from year to year and the effects of this created and the couple being in possession

created what could be regarded as year to year tenancy which could only be terminated in accordance with the provisions of ITPA in line with Section 106 and 116 which makes it mandatory for 6 months notice period to be issued. CLARKE & SONDHI (1963) E.A. 17 The lessor purported to lease out certain premises to the lessee for a period of 3 years at an agreed annual rent which was to be paid in specified monthly instalments. The lessee had possession of the premises and in the course of time fell into rent arrears thereby forcing the Lessor to bring an action for recovery of the same. In his defence the Lessee introduced or contended that the Lessor had no valid cause of action owing to the fact that the lease was not registered as was by law required under the provisions of the RTA and it was this position that on account of this fact that the entire arrangement was void or unenforceable and that such an arrangement was incapable of passing any legal estate in land. In the opinion of the court, the unregistered lease could operate as a contract inter parties and consequently the Lessee could not escape to pay any rents due. The imperfection caused by failure to register does not necessarily defeat the rights and obligations of the parties as between themselves. The approach has been to save whatever can be saved and disregard that which cannot be saved. This case went to the Court of Appeal which reiterated the same position that an unregistered lease could operate as a contract inter parties and consequently could confer on the Lessee the right to confer the contract including the right of demanding specific performance which in any effect would lead to obtaining the effect of a registrable lease. SOUZA FIGURIDO & CO. LTD V. MOORINGS HOTEL LTD (1960) EACA 926 A landlord sought to recover rent arrears from a tenant on the basis of an unregistered sub lease which was by law required to be registered. In his defence the tenant raised the question of the validity of such an arrangement on account of non-registration. He further contended that in view of the non-registration of the transaction that the same was ineffectual to create any interests in land or any Estate therein and that in the result any covenant to pay rent could not be enforced. Whereas the court of appeal agreed with the tenants contention that no interests could be created by way of an unregistered instrument and that no covenants could create liability if the instrument was unregistered, the lease could nevertheless be regarded as having created a contract inter parties which is enforceable as between the parties and therefore the parties could not escape their respective obligations and duties including that of paying rent. The case being made out appears to be that a lease which is registrable as a matter of legal requirement but which for whatever reasons is not registered will not create rights in rem. They can create rights in persona but not rights in rem. Interest in land which need not be registered This is principally a preserve of the RLA and in particular S. 30 thereof which makes interests in so called overriding interests. The position in law is that overriding interests need not be reflected or shown in the register for them to be effective. Such interests as listed under S. 30 include rights of way, water, profits subsisting at the times of first registration, natural rights of

air, water and support, compulsory acquisition rights, resumption entry such and user conferred by any written law, leases and agreements for a lease not exceeding 2 years. Section 30 in effect gives examples of rights or interests that can be broadly categorised as being of an overriding nature. The proper construction of that section is that there is no time to give an exhaustive list of what could be regarded as overriding rights and the items listed do not mean the end of what could be considered as overriding rights. There could be added some other aspects such as rights that such as prescriptive rights that accrue to an adverse possessor by having availed himself with such rights as effective occupation of land without consent continuously openly and for the period of 12 years in which case the rules relating to adverse possession would entitled the adverse possessor to be declared the owner of such piece of land under his occupation. Those interests which are of overriding nature such as the ones reverted to under S. 30 need not be in the register. This is an exception to the sanctity of registration and the fact that nothing outside the register can be entertained in terms of defeating the rights that specifically appear in the register. PRIORITY OF REGISTRATION The question of registration is treated different under various statutes. It is imperative in as far as giving preferential treatment to competing interests of land. Under RDA Cap 285 it is provided that under Section 27 that the day on which the document is presented for registration shall be deemed to be the date of registration with this comes the significance attached to the time. Under GLA Cap 280 S. 140(1) provides that every doc shall be registered in order of time at which the document is presented and it is with reference to this that preferential treatment is dealt with. The time when the document is prepared and the date shown on the document will not play any role in as far as matters of according priority to those documents are concerned what is crucial is the time and date of presentation.

STAY OF REGISTRATION This is a preserve of the RLA S. 43 no other statute devotes any time to this. Where one proposes to deal with registered land, and has taken certain steps towards that end i.e. like carrying out an official search and at the same time declared particulars of such land and has a written consent of evidence of the existence of such a transaction from the registered proprietor, he may make a transaction .. the reason is that any acceptance of such an instrument could have the effect of defeating the intended transactions and he can stay any other transaction for 14 days from the date of applying for such a stay or from the date of applying for an official search. The idea is that if there are rights about to crystallise arising from the initiatives of the parties, it is fair and just to preserve the status quo so that the intended transaction are not in any way undermined by any rival transaction that may serve to jeopardise the disclosed transaction. For 14 days what is preserved is the possibility of there

being interference with the transaction to preclude any possibility of defeating the transaction and if after 14 days the transaction is not finalised the applicant can apply for a further 14 days until the transaction is completed. This is known as the suspension period in which time no other transaction will be acceptable for registration. RECTIFICATION AND INDEMNITY There are bound to be mistakes from time to time and so there are provisions that take care of such things. In RLA rectification can be done at the insistence of the registrar or through court intervention. Section 142 empowers the registrar to correct formal matters which do not materially affect the interests of the registered proprietor. The registrar can invoke similar powers to rectify registration affecting the registered person which the permission of the affected parties. Dimension of areas after a survey has been done can be rectified if there are mistakes. In all cases where rectification has to take place, notice has to be given stating the registrar intention to effect changes and the registrar may also rectify to reflect aspects such as change of name. Those formal changes are subject Under S. 143 the court may order cancellation of the order of an entry of registrar where he is satisfied that the entry was by way of fraud or mistake. The power to effect such changes by the court is confined to subsequent registration other than the first registration. A first registration cannot be rectified even where fraud or mistake has been disclosed by an interested party. S. 143 can be regarded as being intended to cure all manner of ills as far as endless litigation or disputes regarding property is concerned and it brings some kind of finality to the process of registration. S. 143(2) provides that there should be no rectification of the register where the effect would be to adversely affect the owner who has acquired the interest in question for valuable consideration and had no notice of fraud or mistake in so acquiring the interest and was not privy to the fraud or mistake that is being alleged. It is not automatic that rectification would follow even in subsequent registration where circumstances are proved to be in place. The court’s powers are limited. Section 144 of the RLA is relevant because it provides for indemnity, any person who suffers damage by reason of rectification has a right to be indemnified by the state and the person seeking the indemnity must do so within a reasonable time. Such a person must not have had any hand in causing the mistake of perpetrating the alleged fraud. Registration by virtue of prescriptions and rights attached thereto. This is purely a question of law and the provisions of the Limitations Act Cap 22 apply. One may plead as a defence the doctrine of limitation so that for his occupation of land the law would come to his aid. Effectively occupying land continuously without corruption the doctrine of limitation can confer upon one a right. under provisions of Cap 22 such a person is entitled to approach the High Court for a declaratory order that he is now entitled to land under occupation. The exercise involved in seeking a declaratory order is not in itself intended to confer the rights sought, it is merely an exercise in recognition of the rights that have vested in a person by operation of law. An adverse occupier who sits tight his entitlement is not based on a declaration but is based on the fact that the entire prescriptive course has run its

course and has crystallised in his favour. As the owner of the land he can approach the court for a declaratory order under Section 38 which empowers the court to declare that the land in question belongs to the person. RECTIFICATION AS PROVIDED FOR IN OTHER STATUTES These lack elaborate provisions such as the ones we have seen in the RTA for instance which provides that if a non-existence person is named as a given parcel of land, upon the order of a competent authority, the name may be cancelled and a competent authority should be understood to refer to the court and so a court order should suffice. The registrar can rectify common errors which have been occasion purely by inadvertence or through mistakes where such can clearly be said to be the case. Section 60 of RTA empowers the registrar to rectify errors which have occurred due to fraud or mistake. He has to give notice to the interested parties concerned. Section 121 of the GLA provides for cancellation of entries in the register in the same manner and under the Civil Procedure Act there is a clause or procedure prescribed which one can adopt to reach out to the court by way of originating summons to correct any mistakes under Order XXXVI of the Civil Procedure Act.

PROPERTY LAW DEVOLUTION OF RIGHTS AND INTERESTS IN PROPEORTY THE LAW

RELATING TO LEASEHOLD TRANSACTIONS

Devolution of rights and interests in property are purely a question of law and accordingly the same is determined by operation of law. The appropriate term to be employed in reference to issues related to devolution of rights and interests is transmissions which refers to the process of passing of such rights and interests in property from one person to another as by law prescribed. Any form that property can take can be the subject of transmissions whether it is land, shares in a company provided that there is an interest or a right that one is entitled to the same can be devolved. Ways through which such devolution can occur are transmissions manifest, or can manifest itself through a number of forms

I. Inter vivos transfer i.e. transfers made in the lifetime of the person who owns the property. These can occur wherever somebody purchases something at which point they are entitled to have the rights in that property pass to them; Property in the form of gifts can be the subject of a transfer as well.

II. By operation of rules of prescriptions. This refers to instances when we have the

law of limitation extinguishing somebody’s right in land and at the same time giving somebody rights through adverse possession.

III. Upon the demise of the proprietor or owner of a property an occasion will present

itself for the purposes of dealing with his property and how they are to be shared and managed. This can be said of both testate and intestate succession. The questions as to who is entitled to hold the property or money or benefit from the Estate of the deceased person becomes one that is purely governed by law.

IV. Insolvency whereby a company or a legal entity runs into problems probably

through bad management or lack thereof such that it cannot meet its day to day financial obligations in which case there would arise ground to appoint either a receiver or a liquidator to manage the affairs of such an entity an effect of which is to vest all property belonging to such an entity in the person so appointed. Bankruptcy would present a similar scenario i.e individuals who have been adjudged bankrupt. Compulsory acquisition can also lead to rights and interests in property passing or changing hands.

In all these situations, the common denominator is that the proprietor or the persons entitled to rights and interests in questions suffer from some legal disabilities or are the subject of some disability by reason of which they cannot continue enjoying or holding and exercising the powers that are consistent with their fact of ownership of the property concerned. When that is the case, due to such disability the rights and interests concerned would have to pass in accordance with the law. On the basis of such disability the rights and interests concerned will devolve from one person to another by operation of law. Examples of the applicable statutes which regulate those instances are the RLA Cap 300 the RTA, GLA, the Companies Act Cap 486, the Bankruptcy Act Cap 53, the Limitation of Actions Act Cap 22 the Law of Succession Act Cap 160 is relevant as well as the 1968 Compulsory Land Acquisition Act. All those pieces of legislation offer good examples of regulation under which those instances would fall. The Companies Act is relevant in matters involving insolvency of companies, the others are all relevant and provide good examples of what would apply. The Limitation of Actions is relevant to issues of adverse ownership etc. The law of succession Act and some provisions in the RTA would be relevant when somebody dies. Under the provisions of the RTA and GLA it is the position that upon the death of a registered proprietor his personal representatives become as a matter of law entitled to be registered as proprietors of such assets as may form part of the Estate of the deceased person and that registration is achieved by endorsing the names of such representatives against the title or the title of the property after the personal representatives have met the necessary requirements to prove their status as provided for under Cap 160. Cap 160 requires that personal representatives must take out probate or letters of Administration to empower them to step onto the shoes of the deceased person and assume the powers that such a deceased person would have otherwise had in dealing with all matters relating to this property. It is on the strength of probate which is talked about where there is a Will and the Court process has enabled you to prove the Will or letters of administration where there is no Will left and you follow the procedure prescribed under Cap 160.

Section 52 of the RTA is clear that a personal representative that has been duly approved by the court is deemed under Section 52 of the RTA to be the proprietor of the lands or part thereof which has remained undisposed as at the time of the registered owner’s demise. Any land which had remained in his hands up to the time of his death passes to the personal representative. Section 54 requires that personal representatives should own such property according to the dictates of equity and good conscience and are subject to any trust which may exist in relation to that property which the proprietor would have held such property would be equally binding and for purposes of dealing in such property the personal reps are deemed to be possessed of all powers or rights which enable them to absolutely deal in such property as if they were the owner of the same. In other words there is no distinguishing between what the deceased would have done on one hand and what the representatives will do. Most of those representatives would not be the sole beneficiaries and they may not even be beneficiaries of the Estate. The legal position that is involved in the passing of these rights and interests is that in the first instance it would help them administer any part of the Estate to those who are beneficiaries. This could be persons other than personal reps or where the reps are themselves beneficiaries but the purpose is to temporary vest the rights on personal reps before they are passed to the beneficiaries under the Will or those who can approve the entitlement. There are statutory forms that must be used when a personal rep intends to transfer the rights to the beneficiaries. Under the RLA you must execute a form known as the RL17 and the process is completed by registration. If a personal rep is also a beneficiary he must use Form RL1 or must execute a transfer in his favour suing RL1 whenever he intends to transfer the property to himself. The fact that the personal rep has proved his status and gotten the endorsement of the court precludes the involvement of any other players being involved in the management of the Estate in question. Only the Executor and Administrator who are entitled to deal in such property to the exclusion of anybody else including the beneficiaries. The Rider is that they occupy a position of Trust the interests that must at all times remain paramount is that of the individuals or persons entitled to a share of the Estate. Where the proprietor of the property dies without a Will, an administrator must be appointed thro the stipulated process and must be confirmed as such and must be issued with a Grant of Letters of Administrations in line with S. 70 of the Succession Act Cap 160. It is on the strength of this that the administrator would be entitled to deal with the property forming part of the Estate. There is a problem that arises in situations of co-ownership, i.e. joint tenants and tenants in common both of which are forms of co-ownership. In line with requirements under Section 118 of the RLA if one of the two or more joint proprietors dies, the position is that the name of the person or persons who have so perished have to be deleted from the register because the applicable principle under joint tenancy is that there is a right of survivorship meaning that the interests of the deceased would pass to the remaining proprietors and would not pass to the personal reps and consequently to the issues of such a proprietors. This position contrasts sharply with what is involved under tenancy in common because where property is held in common the position is that the interest of each of the tenants can be severed so that where one of the tenants dies, the interests and rights do not pass to the other tenants instead it

passes and vests in the beneficiaries of such a tenant. In other words there is no right of survivorship under the GLA and RTA it is a requirement that the certificate of death of the deceased, proprietor must be registered against the title of any property previously held by such a proprietor if all the requirements that bring into place the personal representatives be they executors or administrators if all the requirements are complied with, it sets the stage for property to devolve to the beneficiaries. INSOLVENCY AND BANKRUPTCY Whereas the first one involves corporate entities bankruptcy is purely concerned with individuals. The proprietors in this instance are equally placed in the sense that they are more or less in their inability to meet their financial obligations and for the individual the inability to pay up on what is expected of them or what they owe. Both the Companies and the Bankruptcy Act provide the mechanisms for dealing with those situations. A company can be placed under receivership in which case the liquidator or official receiver whichever is the case would be entitled to deal with the company’s property. The owners of the company would be effectively disenfranchised in terms of any powers that they may have over the company and its affairs. There are two stages and a distinction to be drawn between receivership and liquidation. A company that still has hope a good management can still turn it around would expect receivership appointed by the debenture holders or the court to manage the assets of the company and pay any outstanding debts and give back the company to the owner if this is successful. A receiver can be bought out if the company can raise finance to regain control. Liquidation is where there is intention to wind up and there is no likelihood that the company will turnaround no matter how long so it is more draconian than receivership but in each case you have rights and interests passing to somebody else other than the owners of the company. A person who is adjudged bankrupt also suffers disabilities from the amount of the money one can have on them and a trustee is appointed to manage ones affairs and if the court order is still in place you remain an undischarged bankrupt until you are discharged from such an order. COMPULSORY ACQUISITION Compulsory Acquisition Act of 1968 is part of the doctrine of eminent domain and is evoked by the Public purpose test. That the acquisition must not be for satisfying private interests and the public purpose test is the basis for acquisition. The other fundamental requirement such as making prompt payments have to follow. The rights and interests devolve from private to public domain in that instance.

THE LAW RELATING TO LEASEHOLD GRANTS AND TRANSACTIONS This involves tenancies or relations between a landlord and a tenant. A leasehold interest is one that is held in land under a leasehold title. The interest in question can be the subject of an assignment and it is capable of surviving the parties to that arrangement. The RLA defines a lease as a Grant with or without consideration by the proprietor of land of the right to exclusive possession of his land and includes the rights granted, the instrument granting it, a sub-lease but does not include an agreement for a lease. This is found in Section 3 of the

RLA. The RLA gives an encompassing wide definition and we shall examine the significance to be attached to this definition Section 105 of the ITPA a simple definition approach defines a lease as the grant of a right of exclusive possession of a defined piece of land for an uncertain or ascertainable period. One can contrast between the two definitions e.g in the first one quite a lot is included which mentions instruments, sub-lease as part of lease and the deliberate approach to make it clear what does not amount to a lease in this case an agreement to have a lease arrangement does not amount to a lease. Consideration can be necessary or unnecessary under the RLA but under the ITPA it is a pertinent component of the definition. Both of them of course revert to exclusive possession and the ITPA further spells the essential requirements that the exclusive possession must relate to a defined premises and that the period in question should be certain or capable of being ascertained so that in terms of the essential elements of a lease, one can easily come up with the following i.e. a leasehold arrangement must confer the right of exclusive possession, that the arrangement must be an intention to create a lease and nothing else; that the subject matter of such a leasehold must be some defined premises and not of one that is not identified and that the period for which that arrangement is to last must be that there must be a commencement date and the termination of such an arrangement. It must be easy to ascertain when the arrangement commences and when it ends. On the requirement that it must confer exclusive possession, this translates to the fact that a tenant must acquire the right of possession to the exclusion of the landlord and all other persons claiming under him. That includes relatives, spouses who have no business interfering or sharing possession with the tenant if a leasehold arrangement is what is in issue. In the case of London Northwestern Railway Co. V Buckmaster (1874) 10 L.R. the importance attached to exclusive possession precludes interference from the landlords gives new meaning to the arrangements. Exclusive possession does not necessarily mean that where one falls into possession he becomes a tenant. It is quite possible that one may be placed in exclusive possession without being a tenant as explained in RUNDA COFFEE ESTATE V. UDDGAR ( In this case the purported lease was ambiguous and it had very funny clauses. The actual parties to the arrangement were not clearly spelt out and described tenants as paying guests so that the court was at pains to point out whether a grant amounts to a lease or only a licence. The general circumstances surrounding the entire transaction would come into play. Between a lease and a licence there is a world of difference the most significant being that a licence is much more inferior in terms of rights and interests that it can confer. A licensee would suffer from setbacks that would not necessarily affect one holding a lease. A licence is granted by the proprietor to occupy and gain something for some consideration but for a limited period and cannot be assigned and that is the principle difference between a lease and a licence in that whereas a lease confers much more in terms of rights and interests a licence offers far much less, it cannot be assigned and does not confer rights and interest. What may be proclaimed as a lease need not be what it is purported to be if it fails to meet the essential requirements as it might turn out to be just mere privilege to occupy. There is also simplicity to terminate a licence and one can revoke it easily. There must be an intention to create a lease so that whether an agreement is a lease or a licence is an issue that can properly be gauged based on the intentions of the parties where the

process can be greatly assisted by looking at the conditions at which parties entered into the arrangement. In Hecht V. Morgan 1957 E.A 741 the rule as laid down by the court was that there must be a clear-cut intention to create a lease on the part of both parties. The intention can be inferred from those surrounding circumstances and once the intention of the parties have been gauged, it should be clear that what was intended was a leasehold grant and in the event that there is failure to ascertain that intent on the part of the parties and where surrounding circumstances do no point towards the creation of a lease the courts have been inclined to hold that a licence rather than a lease is what was created. DEFINED PREMISES No lease can be created or talked of unless the property in question is concretely defined or is such that one can have the means of delimiting the boundary of the premises so that no lease can be created where the frontiers of the property cannot be identified. That position has won the approval of the court in Hebatulla Brothers Ltd and Thakore V. The court in this case stated that no tenancy could be created where the property to be let out could not be described in precision. PERIOD TO BE ASCERTAINED Period of the lease must be defined or expressed and where it is not so expressed there should be a fairly easy way of knowing both the commencement and the time at which the arrangement comes to an end. This requirement is satisfied if the commencement or expiry date can be ascertained with reference to whatever defined events that the parties may think of where the date of commencement or expiry is uncertain, it has been held that such a transaction would be void as was the case in Lace and Chandler where the arrangement was to last for the duration of the war the court held that this was not sufficient of making it capable of ascertainment as when it was to last. RLA LEASES Sections 45-64 emphasise that a lease must be for an ascertainable time, periodic leases provide one form of such leases under the RLA and they belong to the realm of leases under the RLA. In terms of meeting those essential requirements a periodic tenancy would be from month to month or quarter to quarter and this would be to ascertain the period that the lease is to last. It can also be ascertained by payment whether monthly or quarterly. Periodic tenancy is capable of conferring a right in a person’s favour and such a right is capable of protection. One could be entitled to lodge a caution Section 131 of RLA confers a right protected in periodic tenancy. Any lease for more than 2 years must be registered to be valid. It would not be void for purposes of certainty of duration to express a lease in terms of being a lease for the life of tenant or landlord because these people will die at one point and it is in this reference that the arrangements would cease and the courts have held this to be sufficient for meeting the requirement of certainty of duration. In computing the term of a lease, the date of commencement is to be excluded from the date of lease and where there is no date it is understood that time will ran from the date of execution of that instrument. It is also possible under RLA to create future leases for a period to commence on a future date and this is the subject of Section 51 were future or

reversionary leases can be created. If so created such a lease must commence within 21 years from the date of execution failing which it must be void and one has to complete certain arrangements by registering the instrument. It is also possible to talk of a lease in possession. This is an attempt to regularise what previously had been an informal relationship not regulated by any clear cut terms and conditions. This type of lease will have its terms expressed in terms or will commence on a date that is past or from the date of the lease but the fact is that the tenant or the parties may have entertained this relationship. A lease is given to one who is already in possession of the premises. RIGHTS AND OBLIGATIONS OF PARTIES TO A LEASE The first thing to emphasise is that a lease agreement falls in the same category as another contractual arrangement between parties and the general rules of contract will apply. The statute provides for what would in any even be the basic minimum so that the rights and obligations to a leasehold arrangement are such that you cannot dilute them through your own agreement. You cannot take the basic minimums as spelt out in the statute. You can only add and supplement but cannot derogate. Even where parties fail to provide for those rights and obligations the statutory obligations and rights will come into operation. The implied rights and obligations whatever is a right to the tenant is an obligation on the landlord and vice versa. A tenant having a leasehold grant is entitled to quiet possession of the premises so it is incumbent on the landlord to ensure that the tenant has quiet enjoyment of the lease premises as long as the tenant is making good on his obligations including paying rent, he is entitled to peaceful occupation of the premises and that is an obligation on the landlord. The sense of quiet enjoyment is that there should be no interference from persons claiming there should be no disturbance. The landlord will have breached this particular covenant if in an effort to get rid of the tenants he removes windows, doors and disconnects electricity. The court in Keraira V. Vandyan 1953 Vol 1 WLR 672 In Jones and Lavington (1903)1KB 253 the court held that the landlord could not incur any liability with regard to this particular right where the culprit was not the landlord but the superior landlord. (there was subletting in this case) IMPLIED RIGHT OF TENANT Non derogation from grant which requires that the landlord does not and must not use or permit to be used the adjoining or neighbouring premises of which he is the proprietor in such a way as to adversely affect the tenants use of the leased out premises. That requirement is specifically there to ensure that the landlord does not defeat ones declared intentions as to why one requires to take up the premises in the first place and the court in Birmingham Dudley and District Banking Company V. Ross (1888) 38 Ch. D 295 summed up the essence of this obligation as follows “A granter having given a thing with one hand is not allowed to take away the means of enjoying it with the other hand.” What this boils down to is that if one has leased out premises for rent, to defeat ones purpose and that of ones family from living in a dignified neighbourhood, the landlord should not allow brothel services for example if the premises are

for residential purposes. One cannot run a disco or pub just next to the residential as this would amount to derogating from the grant. The tenant it is assumed will have declared the user to the landlord and the landlord is then bound to the right of non-derogation from the grant. The premises as leased out must be fit for habitation that the tenant seeks to use the premises. Subject to Cap 300 and subject to the provisions of Cap 293 Rent Restriction Act it is an implied term in all leasehold transactions that where a dwelling house is let out especially if it is furnished there is an implied undertaking that the same is fit for habitation at the commencement of that particular arrangement. This is only found in the RLA and there is no equivalent in the ITPA; Leases that involve premises that are let out furnished are subject to this requirement. Implied right of a tenant that the landlord will disclose material defects in the premises which is an ITPA feature. The Landlord under ITPA is under an obligation to disclose all defects in his knowledge and of which the tenant is not aware but ought to be informed of and due regard must be had to the tenant’s declared purpose for which he intends to take up the premises. It is an implied right for the landlord to carry out repairs Section 53 of the RLA requires that where only a part of the premises is leased out the landlord must keep the roof, common passages and common installations in a good state of repair. This is so fundamental that a breach thereof is enough ground for the tenant to repudiate the leasehold arrangement all together besides being in a position to institute legal proceedings for recovery of damages, there is no similar provision in the ITPA and it remains an RLA phenomenon. Implied rights of the landlord that translates into tenants obligations

1. obligation to pay rent – a tenant must pay rent as a general principle Section 54(a) of the RLA and the duty to pay rent subsists for some time even in situations where an event or catastrophe has occurred which has the effect of rendering the premises unfit for use for the purpose to which it was leased out. Only if there is failure of the landlord to restore the premises within the periods stipulated by law will the duty to pay rent cease. This is principally due to the fact that a leasehold arrangement creates an estate in land that supersedes simple contracts so that the rights and interests created are not bound to be defeated by certain contractual flaws that may be found in simple contracts as opposed to a lease. The estate is a much more substantive right which is not subject to being defeated merely by some of these incidents. It remains vested in the tenant and therefore the obligation to pay rent continues even in such situations except when there is failure to make good on the damage within the stipulated period of time. Rent is payable in advance or arrears whichever is agreeable to the parties.

2. Section 54(b) implied obligation on the tenant to pay rates and taxes for which the landlord is not directly liable.

3. Section 54(c) and (d) There is the obligation to repair the leased premises 4. Tenant to keep the premises in goods state of repair. Repair is defined under S. 54

as what would reasonably do 5. Obligation to repair or replace items of furniture under S. 54(c) where premises are

let out furnished to keep the furniture in the same condition as was in the commencement of the lease arrangement. In case any item is lost or destroyed or

beyond repair, there is an implied obligation on part of the tenant to replace the item with similar ones of equal value.

6. the obligation not to sublease, charge Section 54(h) the tenant is obligated not to transfer, charge or sublease unless the landlord agrees in writing which does not rule out the possibility the tenant engaging in this if the permission has been procured. The landlord consent should not be unreasonably withheld when it is sought. In Premier Confectionary Co. V. London Commercial consent was held to have been reasonably withheld where the transferred property would have been used for detrimental purposes with reference to the landlord’s own interests. Similarly in Pimms Ltd V. Tallow Chandlers the court held that transfer consent was reasonably withheld where the sole object of the tenant was that the transferee should require statutory tenancy. In all situations the reasonableness or otherwise of withholding the consent is a matter for the court to determine. It is for the court to determine and to be guided by the facts of the case and surrounding circumstances.

Obligation of tenant to allow landlord or his agents to inspect his premises. In the event that the landlord wishes to exercise this landlord the examination has to be at reasonable hours and prior reasonable notice is to be issued to the tenant and the right is not exercisable at any time that the landlord wishes and has to be reasonable hours and advance notice has to be given. Similar obligations by virtues of S. 108(b) basically gives the landlord the same rights. Leases can be the subject of assignment Assignment is possible so that a tenant who is put in exclusive possession by virtue of a lease for a specific period is at liberty to assign his lease and what remains with the landlord is the right of reversion. The property is temporarily the property of the tenant by virtue of the estate which vests on the tenant. The landlord retains the reversionary interest at the end of the lease. The correct position is that each party can assign their interests in the property provided that there is due compliance with contractual rules regarding privity of contract as well as privity of estate. THE GLA The general approach is that obligations and rights are the same. Sections 32-34 are instructive and relate to implied covenants as to development of the property on the part of the Lessee who is obliged to effect such improvements on the land leased out within the first 3 years of the lease and to maintain the said improvements at all times to effect additional improvements as specified in the 1st schedule to the Act and is obliged to maintain the improvements so effected after expiration of the first 5 years of the lease. Section 34 imposes restrictions not to sublease without seeking and obtaining consent from the commissioner for lands. Under a leasehold arrangement enforcement can be looked at the standpoint of tenant or landlord. From the landlords point the enforcement is through

1. By way of distress for rent; 2. Action for recovery for rent arrears; 3. Forfeiture of leasehold or grant

4. Action for injunction of damages.

Distress is carried pursuant to the provisions of Cap 293 Distress for Rent Act and the right avails to the landlord and empowers him to go to the premises leased out for purposes of removing therefrom all the times in the possession of the tenant to compel payment of rent. There are goods not capable of seizure and those capable of seizure. Property that cannot be taken include tools of trade, perishable goods, goods belonging to third parties, items in actual goods, clothes and beddings and pets. Other than those other types of property may be seized and if not sufficient to meet the required sums there is a 2nd level. Sheep, beasts of plough or donkeys instruments used in trade or profession. In levying distress a certified bailiff must be engaged and no more than 6 years of rent can be distrained. Cap 22 bars claims if there are more than 6 years old. Action for recovery of rent arrears is an other way to distress for rent, you file a suit in court and the requirements for limitation of actions act applies no more than rent of 6 years is recoverable. The 1st and 2nd options are not exercisable simultaneously and it would be illegitimate to proceed for distress when you have already filed in court for rent arrears. Once you file a suit you wait for it to be dealt with. Forfeiture – the lease on the ground is effectively terminated under Section 56, 57 and 58 of RLA. Forfeiture is draconian and should only be resulted to where one is faced with a breach of a fundamental requirement on the lease. Where conditions of Se Actions of damages mean that one does not want to terminate the relationship and there is an ongoing breach that one intends to stop and in the process has suffered injury that one needs to be compensated for then one can file for an action for damages. Enforcement from the tenant – the tenant can institute a suit for damages where there is an invasion on the right to quiet enjoyment, if it is interference, disturbance or interruption by the landlord the tenant can seek an injunction. If there is loss suffered due to the landlord derogation from grant and business has suffered, a tenant can claim special or general damages. In case of such breaches, the tenant has options to seek redress. In extreme cases the tenant would have the option to walk away from the relationship altogether. Where fundamental breaches are in issue and all efforts have been made to bring to the attention of the landlord it would be in order for the tenant to repudiate. Termination of a Leasehold Grant and the Consequential effects that flow there from A lease may be terminated in four principle ways

1. Proper Notice 2. Effluxion of time through surrender and finally through frustration Section 46 (i)

(a) and 64 of RLA. Section 113 of ITPA with regard to notice. What notice serves is to put the party concerned in a position of knowledge of the intention to vacate a notice is required where the lease is for a fixed term. Where it is not reserved, a party may give notice to expire at the end of the leasehold created under the RLA a notice must be

given in case of all periodic tenancies and the notice period should be equal to the duration of the tenancy. Under the ITPA six months notice is required for agricultural or manufacturing tenancies and for protected and controlled tenancies. In all cases where notice is required it must be given in the proper form and failure to do that will render invalid such purported notice. The significance attached to giving notice lies in the fact that parties may at some point wish to litigate to challenge the legitimacy of the arrangement and where the notice is legitimate it has to be in line with the requirements of time. Effluxion of S. 43 of the RTA 114 ITPA are instructive that there is an automatic termination of the arrangement upon the period for which it was created comes to an end or if there is a particular event on which the arrangement was predicated, upon the occurrence of that event, or the event upon which the lease was supposed to come to an end, the arrangement will cease e.g. when you talk about a lease for life, when the lessee dies, the lease ceases. There is not requirement to serve notice because it is adequately taken of where the period is certain or capable of being ascertained. SURRENDER Surrender is another away to terminate a lease provided for under Section 63 of RLA and 114 of ITPA The tenant gives up the property to the landlord and surrender may be expressed or implied. It may take place prematurely before the lease runs its full course. It is expressly done under RLA and RTA by executing a registered instrument of surrender or by endorsing the word surrender on the lease document or its counterpart in which case the document must be completed by executing the instruments by having it stamped and registered. Under GLA surrender can also be registered. Implied surrender would be judging from the conduct of the tenant that everything that he has done or in all his actions are inconsistent with the requirements under the grant i.e. if the tenant does not pay rent, vacates the property without notice, this can be considered as implied surrender. FORFEITURE This happens where the landlord takes back the premises upon showing cause, that terminates the arrangement. It is an initiative that the landlord takes and Sections 56, 57 58 of the RLA, 111, 112 114 and 115 of the ITPA. Under S. 56 the Lessor’s right of forfeiture lies where the lessee is adjudged bankrupt or being a company goes into liquidation, it is possible for these rights to be waived and the Lessor may do so by continuing to accept rent from the Lessee or by any other conduct which would point or indicate that he regards the relationship as intact. Wavier of right to forfeit is possible under Section 56(3) right to forfeit cannot be exercised unless there is due notice specifying on what grounds the lessor is pursuing that right.

Forfeiture is undertaken by peaceful re-entry of the premises and where the tenant is in occupation and has not resisted re-entry, or through a court order. The effect of exercising this right terminates the lease and with that all rights and interests cease. There are exceptions where these rights would not avail and that is where forfeiture is procured through fraud or where relief is granted in situations involving sub tenancy and the courts have stopped the arrangements FRUSTRATION Under Section 108(e) ITPA a lease is frustrated if any material part of the property is destroyed and rendered wholly substantially and permanently unfit for purposes it was let out for and the effect is to render the lease voidable at the option of the lessee. Under RLA where such destruction occurs, rents payable may be wholly or partially suspended until the property has been rendered fit for occupation and use. Where this does not happen in 6 months the tenant can repudiate the arrangement.

PROPERTY LAW MORTGAGES & CHARGES AND THE LAW RELATING THERETO Mortgages and Charges are borrowing commercial transactions whereas mortgages apply to such transactions created under the ITPA charges are a feature of similar transactions carried out pursuant to the provisions of the RLA to the extent that the obligations and duties created restrict the powers of the registered proprietor from dealing freely with his property. Transactions in mortgages and charges amount to burdens on land or on property offered as security and in especially a capitalist economy they have assumed great significance as a way of accessing credit facilities from financial institutions or with the help each property owner may develop their properties using their titles as security in consideration for the loan or credit advanced. The transactions involved require that property owners desirous of accessing funds approach financial institutions who are willing to accommodate them financially to a certain level agreeable on the footing of security to be offered by property owners in the form of the titles that they hold. The idea of mortgages is said to have originated from ancient Roman Law and practice although it has also been accepted that Mohammedan Law as well as common law has traits which point to these forms of transactions. Under ancient Roman Law two forms of Mortgage transactions can be identified the first aspect of the mortgage institution to develop under this law was the form that was known as the Fiducia as a form of mortgage this involved a fiduciary relationship between a lender and a borrower whereby the property in question was

given to the lender extending the facility in return for a loan and it was a condition under this arrangement that upon default such property would be forfeited to the lender regardless of the value comprised in it. The second aspect of the mortgage institution under Roman law was identified as the Pigmus which entailed a transfer of possession of the property pledged as security but without the element of forfeiture as was the case in the first example. Upon default the property in question was merely sold and not forfeited so that there was a possibility of the borrower getting back something that in the event that the property fetched something more than was owed. There was a third realm distinct from the first two with different rules being applicable though it is not very clear how it worked but the Hypotheca involved a pledge without the need for the property being delivered instead what the creditor had was a kind of power of sale which could be exercised in the event of there being a default. When such a power was invoked the duty to render accounts for the proceeds from such a sale arose and it is a much stricter requirement than the practice involved in the Pigmus. Under Mohamedan Law the starting point is that the idea of charging interest or having any gain over and above what has been extended as the principal amount is offensive to the Islamic religion. Mohamedan law does not accommodate the element of charging interest. Their equivalent of mortgage institutions is what they call the Bye-Bilwafa and this is what comes close to a mortgage institution and the borrower pledges his property to the lender for the money for sums advanced with the promise of repayment for the principal sum that is advanced. The lender has a right to take any benefits such as rents and profits that accrue from such a property until such a time that the amount advanced will have been fully recovered even though there is no duty to render accounts the fact that this is a religious arrangement and is premised on religious doctrine, the expectation is that utmost good faith is expected on the part of the lender to make this system work so that he will take no more than his entitlement after which he will turn the property over to the owner. At Common Law, the institution of mortgage took the form of the pledge of a property to the lender coupled with the transfer of possession rather than title. Originally the mortgage institution at common law manifested itself by way of pledge of a property to the lender but not the title thereto. This eventually developed into what is known as the English mortgage which is a form of conveyance of the property in question with the understanding that the mortgagee will reconvey the property in question to the mortgagor upon payment of the principal sum and any interest that may have accrued. Over the years the institution developed in various forms so that by the 12th century two forms of pledges evolved e.g. a living pledge and a dead pledge. The living pledge otherwise known as Vivum Vadium which was an arrangement requiring the lender to take possession of the property recover what was owed in the form of principal sum advanced together with interest on such loan and thereafter discharge the property. In the case of the dead pledge (Mortum Vadium) the lender received benefits from the property towards the discharge of the element of interest only leaving the principal sum to the responsibility of the borrower so that any benefits to the property was to be applied towards

discharging interest accrued rather than the principal amount advanced. Because of the practice as embraced under common law a lot of injustice and unfairness characterised the operations of the mortgage institutions and due to this equity intervened to reign in on the perceived harshness of the mortgage institution as operated under common law for instance under common law upon a borrower defaulting in his paying obligations the element to forfeiture of the property which had been offered as security for the loan was very much the preferred remedy and this meant that the borrower would lose his interests and rights in the property regardless of its value and this in situations that involved very low levels of credit represented injustice and so equity intervened to put straight the underlying concepts behind these forms of mortgage transactions and in doing so it was guided by the principle that once a mortgage always a mortgage and in seeking financial accommodation the property owner is not saying that he has given up his rights and interests and is ready to forfeit. On the contrary the understanding is that here is somebody who has property but lacks credit with which to develop his property and is merely seeking some funds to develop his property with the understanding that the property will be turned over to him as soon as he makes arrangements to repay and common law should not make this hard. Equity intervened to proclaim the principle that once a mortgage always a mortgage meaning the right of the property owners should not be trampled on. The interests and rights in the property were merely confined to that of affording security that the lenders principal sum would be repaid and not that he would seize and take possession and deprive the property owner of the property and this was the starting point for the courts of chancery. They developed certain rules which guided the activities and powers or the limits within which the parties could exercise their respective rights in connection with the arrangements. Failure for the borrower to pay on the agreed date did not extinguish their interests in the property and therefore it did not necessarily have to cause the borrower to forfeit his property to the lender and by applying these rules the courts of chancery developed the equity of redemption and the Equitable Right to Redeem. Equity of Redemption gave the mortgagor a general right to redeem his property on or before the actual date of redemption whereas the equitable right regime gave the borrower what was a form of grace period which extended long past the actual contractual date of redemption for the borrower enjoyed a right to redeem the property even long after the expiry of the agreed date of redemption. A borrower did not have to live in mortal fear of losing his property merely because he had failed to meet the deadline as set in the contractual date of redemption. THE LAW OF MORTGAGES AND CHARGES IN KENYA A number of statutes could be applicable in this regarding i.e. the RLA and the ITPA, the Banking Act, Central Bank of Kenya Act, GLA and the RTA are all relevant. They have specific provisions which apply in the event of there being such transactions between the parties i.e. under the Central Bank of Kenya Act there is a requirement that lending institutions must take security in the course of advancing loans to borrowers. The banking Act Cap 488 initially appeared not to accommodate this particular requirement of insisting of security before any loans are advanced and prior to an amendment where Section 2 provided that the lending was to be done at the risk of individual banks but this was altered by Act NO. 9 of 1999 which made the security mandatory and the change came after traumatising experiences

when a number of indigenous banks went under or collapsed without having anything to turn to or to enable them realise their security so that particular loophole has since been sealed. The statutory definition of mortgages and charges are found in the ITPA and the RLA Section 58 of ITPA defines mortgage as a transfer of security in immovable property for the purpose of securing payment of money advanced by way of a loan in existing of a future date or the performance of an engagement which may give rise to a pecuniary liability. Charges are defined in S. 3 of RLA as an interest in land securing payment of money or moneys worth or the fulfilment of any condition and includes a sub charged and the instrument creating a charge. Section 65(4) of the RLA is clear that a charge shall not operate as a transfer but shall have effect as security only and that is a fundamental distinction which the RLA tries to draw between the character of a charge vis-à-vis a character of a mortgage The principle difference is that in a mortgage the title to the property is the security Under section 58 of the ITPA there are four classes of legal mortgages and Section 58 (5) lists those classes as follows

1. Simple Mortgages – these can be created by delivery of possession of the property which is the security and further to that the mortgagor binds himself to personally pay the mortgage money and agrees that the mortgage property will be sold in the event of his default so that the proceeds realised therefrom can be applied towards discharging the mortgage debt. It is also possible to create what is known as the USUFRUCTUARY and this requires that you deliver your possession to the mortgagee further to that such a mortgagee should be authorised to retain the property in question until such time that the mortgage debt will have been fully repaid. The mortgagee has rights to receive benefits accruing from that property and apply such benefits towards repaying of the mortgage debt.

2. There is also the benefit of creating Mortgage by Conditional sale and here the mortgagor ostensibly sells the mortgaged property to the mortgagee subject to the condition that the sale will become absolute as the specified date in the even that the mortgagor defaults in his payments. In the alternative upon the remapyment of the mortgage debt the ostensible sale becomes void at which point the mortgagee is obligated to transfer the property back to the mortgagor.

The English Mortgage – here the mortgator binds himself to repay the mortgage money on a certain date and actually transfers the mortgage property absolutely to the mortgagee subject to a proviso that in the event of the mortgagor repaying fully the debt there will be a retransfer of the property back to him. It is imperative to understand the points of departure between those classes of mortgages under Section 58. It is also possible to talk of Equitable Mortgages – these are creatures of equity rather than statutes especially in the UK where much of our lawa comes from. In Kenya we have statutory provisions for creation of mortgages i.e. the provision of the equitable mortgages act Cap 291, we have something tin the GLA Section 102 which suggests that we can

create equitable mortgages by deposists of title deeds with the mortgagee and the Registation of a memorandum of such a deposit to formalise such transactions. Sectuib 98 of the ITPA provides for a creation of some form of mortgages which are not adverted to under Section 58(5) because that provision provides for creation of a mortgage based on the contractual understanding of the parties which then defines the rights and obligations under that arrangement. In other words it gives the party a free hand in shaping the sort of arrangement that they want to have when drawing the mortgage instruments and has been refered to as anomalous mortgage to the extent that they do not have any attributes that are similar to what is offered under S 58 of that Act. Section 59 requires registration of mortgages securing a sum in excees of KShs. 200 those must be effected by wayt of a registered instruments and must be duly executed signed by the mortgagor and attested by at least 2 witnesses. where the amount is not in excess of 200 the transaction may be effected by delivery of the property concerned and the option remains open to the parties. Section 100(a) of the ITPA provides that such instruments if duly registered confers onto the parties the powers and remedies that are available to them under the Act. There is an attempt to relate such transactions with charge transactions reached under the RTA and the relevant provisions which talk asbout powers and remedities under the GLA. There is an attempt to equate parties concluding transactions under the ITPA with those that become chargees under a charge created pursuant to S 46 of the RTA. There are certain essentials of a charge that is alluded to under Section 100 of the ITPA, there must be under S 46 of RTA a chargor, a disclosure of the nature of the property being charged whether it is freehold or leasehold a statement regarding the land reference number and a description, there must be an indication of the amount advanced, the lender must be named and described, there must be an acknowledgment of the receipts of the loans advanced, a covenant for repayment of the advanced loans and the rate of the interests to b e paid must be specified any special arrangements agreed by the parties must be disclosed and there must be a charging clause which binds the borrower to repay the sums involved plus interests. The charging clause should take the form of e.g. for the better securing of the said facility or loan, I so and so charge my property etc.

REMEDIES There are remedies that are available to both parties under these transactions Remedies available to a Mortgagee under ITPA

1. Remedy of foreclosure; 2. Remedy of judicial sale; 3. Remedy of statutory power of sale; 4. Remedy of appointment of a receiver; 5. Other remedies which can be resulted to include that of a right to consolidation 6. right to take possession of property in question and 7. a right to institute civil proceedings on the footing of a personal covenant duly

executed by the mortgagor.

The exercise of these remedies under THE ITPA are closely regulated with very clear cut procedures prescribed and any departure from such procedures as laid down would of necessity vitiate the process and render it liable for challenge at the option of the offended party. The essence of foreclosure is that the mortgagee on the strength of a court order is enabled to absolutely debar the mortgagor from exercising his right to redeem the property so that a successful order of foreclosure operates to extinguish the mortgagors right to redeem the property subject matter of the transaction. There is the procedure which one must go thorugh before this particular remedy accrues. Two stages are involved

1. There must be an application for an order of foreclosure nisi and this order gives the mortgagor time within which to repay the debt owed and essentially allows him to exercise his right of redemption;

2. An application for foreclosure order absolute so that where one is completely unable to comply with the terms of the foreclosure order nisi it becomes open for the mortgagee to move back to the court and make the interim order absolute with the result that the mortgage property will have been foreclosed and the moirtgagor permananetly debarred from exercising his right to redeem.

One cannot invoke those procedures, except when the folloiwing conditions are in place

(a) The mortgage debt has become due and payable and that a decree has not been made and that the right of foreclosure is not expressly excluded from the mortgage instrument, that is there is no agreement in the mortgage instrument to the contrary in which case it would be open for the mortgage to approach the court and avail himself of this pazrticular relief.

Foreclosure is rather harsh and that is because of the very draconian nature that it assumes. It deprives a mortgagor of his most fundamental right to redeem and courts are reluctant to give mortgages orders of this nature. The courts tend to frown upon requests for an order of foreclosure because of its far reaching implications on the owner. Judicial Sale requires the blessing of the court if it is to be validly exercised. What is involved is not the exclusion of the mortgagor from exercising his right to redeem and instead what is sought is for the courts to give the green light for the security to be realised. S. 67 ITPA provides for this pzarticular remedy. If and when the mortgagee opts for this arrangement, it must be as an alternative to the order of foreclosure as one cannot go for both, as the court grants the order, every creditor would be paid what is owing and due to them based on the priorities that each of them may have. A very complex procedure is provided for under S. 69 of ITPA which has to be complied with before the court can issue such an order. It is a preferable form of remedy from the one of foreclosure especially where the property is worth more than the mortgage debt. Statutory power of sale does not require the blessing of the court and is available to the mortgagor independent of a court order provided the mortgagor complies fully with all the procedures laid down under the Act. The remedy accrues after the contractual date of redemption has passed or after a specified event has occurred which has the effect of rendering the money due unpayable immediately. It may accrue where the mortgage

instrument was executed after the commencement of the ITPA amendment Act 1959 or where the power has been extended to a pre 1959 mortgage transaction in line with the provisions of Section 69 of the ITPA. Similarly it may arise where power of sale is not expressly excluded under the mortgage instrument and finally it will accrue where the borrower has signed the mortgage instrument and has had his signature duly attested as by lawa required and there is a certificate by an advocate certifying tha the has explained to the borrower the full effect of Section 49 of the Act and the borrower understood the same as required by Section 69 (4) (a) of that Act. What this really seeks to instil in parties engaging in mortgage transactions is that it must be a conscious process with all risks and obligations being understood and appreciated by the party that is most vulnerable i.e. the mortgagor and at the point where the transaction is completed he is left under no illusions as to what will happen if there is non-compliance. Before this right can accrue, the following conditions must be satisfied In terms of procedure, this is elaborate and non compliance would render the exercise of this power liable for challenge at the option of the mortgagor. The procedure is that the lender has to give statutory notice required under the Act. The property must be disposed of by way of public auction having been advertised in preferably mass circulating dailies so that everyone knows about it. If public auction is not viable, the mortgagee may approach the court for an order allowing him to dispose of the property by way of private treaty or contract that of course requires you to make a proper case. In the carrying out of such an exercise the lender has a wide discretion but having said that it is subject to certain conditions i.e. must act in good faith, exercise reasonable care to realise the best price in the market that is available at that time and turn over any surplus amount that may be realised from the proceeds and in his exercise of this power of sale he must due regard to the interests of the borrower in all respects. The courts have nevertheless observed that in the exercise of his statutory power of sale, the lender is not acting as the borrower’s agent or his trustee and all that is required is that he acts in good faith and gets the best price for the property and give any surplus to the borrower whose interests he must have at heart.

PROPERTY LAW REMEDIES OF THE CHARGEE UNDER RLA There is an impediment as regards the exercise of such power of sale as envisaged under the Act. The Amendment impedes the exercise of such powers and leaves in doubt the reliability of this particular remedy especially when it is subjected to a continuous interruption.

Under the RLA a chargee has fewer remedies than would avail to a mortgagee under ITPA, infact the RLA severely restricts other remedies apart from the statutory power of the sale. Section 80 declares that a chargee may not enjoy a right of entry therefore there can be no taking of possession neither can a chargee proceed by way of foreclosure. Similarly under S. 84 of RLA a Chargee has no right of consolidation unless his sale is expressly reserved in at least one of the charges. One is better of dealing with this particular transactions under the ITPA than under the RLA from the perspective of the person providing the The Judicial approach to the exercise and/or enjoyment of the Right of Redemption. At common law, failure to make repayment of the amounts advanced and any other interests accrued automatically led to extinction of rights so if at the legal date of redemption no repayment has been made, common law treated the right of redemption to have ceased. Through intervention of equity this position has been substantially altered in the sense that indulgence is granted to the borrower even long after the expiry of the actual date, the legal date of redemption. That is premised on the understanding that the basic character of the transaction i.e. that of a mortgage transaction should not be undermined and once a mortgage the transaction remains a mortgage. Both the ITPA and theh RLA grant the right to redeem which is granted in absolute terms and there is no element of a fetter or clog even from a statutory standpoint and accordingly the borrower may move to redeem his property at any time after the principal sum has become due and payable an dthere is no requirement to issue a notice of such intention. Section 72(1) of the RLA makes it clear that any agreement between the Chargor and Chargee to deprive the Chargor his equitable right of redemption shall be void for all purposes. Under both legislation the right of redemption is inviolable. In any case if no date of redemption is specified in the instrument of the charge it is the position in the RLA that the sums shall be deemed to be payable 3 months after a demand in writing from the Chargee to the Chargor seeking for repayment of such an amount as may be due. In the event that the Chargor wishes to express his right of redemption after 3 months following the demand, there is a requirement that he shall serve 3 months notice or pay 3 months in lieu thereof at the time of redeeming the property. Based on this points the courts have approached the issue of guaranteeing this right and protecting it wherever it is necessary to do so. There are a number of case law to support that situation. In Saleh V. Eljofri (1950) 241 KLR the court held that a borrowers equity of redemption was an essential element of every mortgage transaction and that failure to repay the mortgage on the agreed contractual date of redemption did not debar the borrower from exercising his right to redeem the mortgage property. Similarly in Indstrial and Commercial Dev Corp V. Kariuki and Gatheca Resources Ltd the court underscored the fact that the right of redemption subsists until such a time that a transfer has been duly registered. Accordingly anytime before such an exercise is undertaken in exercise of this equity of redemption, the Chargor can proceed and make good on the amounts due in exercise of this particular right. this is guided by the understanding that the borrower both under the ITPA and RLA is entitled to redeem his property unconditionaly at

any time after the principal amount has fallen due and that right cannot be impeded. There is an exception to this under S. 91 of the Companys Act we have a situation where the rights of redemption can be precluded if one enters into an arrangement involving irredeemable debentures. Creation of these debentures would appear to offer some sort of departure from the holdings of the courts that this right cannot be displaced. In the case of Fairclough and Swan Bakery Co. Ltd (1912) AC 565 there was a clause that purported to postpone the right to redeem on the part of the mortgagor for about 20 years in the estimation of the court this particular clause rendered the property virtually irredeemable and that was a violation of the mortgagor’s right of redemption and accordingly such a clause could not stand and the court agreed that the borrower had the right to redeem at an earlier date other than the one stated if he was in a position to solve his debts. In the words of MacNaghten J. equity will not permit any device or contrivance being part of the mortgage transaction or contemporaneous with it to prevent or impede redemption. In the case of Lewis V. Frank love Ltd (1961)the arrangement was that the borrower and the personal reps of the lender agreed that if the said personal reps did not demand for the repayment of the mortgage debt for a period of 2 years, the borrower would grant them and option ot purchase part of the mortgage property. In the opinion of the court this agreement constituted a clause that amounted to a fetter on the borrowers redemption of equity and could therefore not stand and accordingly it was void since it amounted to a clog on the equity of redemption. In Davies and Simmons 1934 Ch. 442 the court declined to uphold an agreement by virtue of which the mortgage property would belong absolutely to the Mortgagee in the event that the borrower died before him because that sort of condition tended to fetter and clog the equity of redemption the idea being that the mortgage transaction essentially retains its character as such and anything that is introduced which would substantially alter this character would not be upheld by the courts because it undermines that the institution. There are instances where the courts have upheld existences of terms and conditions which would appear to assume the character of a fetter or clog but for the fact that they are collateral advantages that subsists alongside such terms and conditions which effectively alter their nature so that they are not seen as fetters and clogs but rather reasonable. The courts jealously guard the mortgagors equity of redemption and anything inconsistent with enjoyment of the mortgagor’s rights is resisted. The other side of the coin is that in situtaitons where ssuch conditions that would appear to be fetters and clogs, are there but it is the understanding that provided that these conditions and terms are not oppressive or unconscionable the courts will disregard the clauses and give them effect. There are a number of judicial decisions which represent this standpoint In Knightsbridge Estates Trust Ltd V. Bryne (1940) AC 613 the agreement was to the effect that the mortgagors would repay a loan advanced to them amounted to Pounds 360 for a period stretching 40 years. They later changed their stand because they had found an alternative lender that would give preferential interest rates and wished to borrow from that other source and sort to do that before the other period ran. In any event the stipulation in relation to the forty year period postponed the exercise of their right of redemption. This was unreasonable and therefore void. The court held that there was nothing oppressive in this

particular arrangement and the mortgagors has been indulged and accommodated based on very fair terms and Lord Green observed that equity does not reform mortgage transactions because they are unreasonable but it is concerned to see that essential requirements of such transactions are observed and unconscionable terms are not endorsed. In Krellinger V. New Patagonia Meat and Cold Storage Co. Ltd, (1914) AC 25 the arrangement was that the Respondents would be provided with a loan which was to be secured by a floating charge. A further stipulation in the mortgage instruments was to the effect that for a period of 5 years from the date of the mortgage the company would not sell sheep skins to persons other than the lenders provided that the lenders paid the best price obtainable in the market within the material period. When the matter became contentious it reached the courts and in the opinion of the court the agreement was valid because the stipulation that was restrictive was in fact a collateral contract outside the main mortgage transaction and conferred collateral advantages and so the courts would not interfere. In Multi Service Bookbinding Co.V. Marden 1978 Vol 2 WLR 535 the court was categorical that a collateral provision in a mortgage which does not clog the equity of redemption would stand and can only be objected to on the grounds of it being unfair or unconscionable. Such a transaction would not be impeached. In Noakes V.Rice the court stated that if provisions in a mortgage transaction though unreasonable are not unconscionable in any way, no subsequent events will operate to invalidate the transaction. The court declined to intervened in the commercial transaction foreseeing a drop in the value of the British pound. In the clearest of cases, where there is an impediment in the right of redemption the courts will strike down the transaction for being void on the other hand in those other situations where the parties bind themselves to terms to terms that amount to clogs and fetters but include collateral advantages would be saved. There are some doctrines which are significant with regard to transactions in charges and mortgages, the doctrines of Tacking, Marshalling and Contribution. TACKING: - this doctrine allows a subsequent lender to insist on the repayment of this loan before repayment is made to prior lenders. That right where it obtains has to be specifically reserved in the mortgage instrument if it is to be exercised. Failure would mean that the right is lost altogether. It is a doctrine that allows for priorities in terms of who should be sorted out or paid first and the effect of reserving it in the instrument is that you supersede the mortgagee reserving such a right supersedes other mortgages in realising their dues. MARSHALLING – this arises where there are competing mortgages. It is a principle of equity which is given the force of law through the provisions of the ITPA Section81 basically each property out of several properties mortgaged to secure one debt is in the absence of the contract to the contract is made liable to contribute to the debt which has been secured by the mortgage property subject to any prior encumbrances which may affect the property in question as at the date of creating the mortgage.

The priority is based on the date of registration, mortgages and charges have to be formalised through the registration process so that the general rule is that the charge or mortgage which is first registered would be discharged in line with that order so that in situations where a subsequent borrower exercises the right of redemption there is a duty taxed on such a person to pay off the prior encumbrances before he can have his property discharged under the mortgage and priority is based on such times as the particular transaction creating the encumbrance would have been registered. Accordingly the Charge or Mortgage first registered would have priority over all transactions of such a nature. The exercise of statutory power of sale is a significant relief that avails to a mortgagee or Chargee both under RLA and ITPA. This relief has attracted a lot of litigation over the years. There are notable judicial pronouncements with regard to statutory power of sale. The courts have had to make pronouncements to clarify under what conditions the power of statutory sale arises. These pronouncements should not just be taken in passing but these are issues that make a difference on whether the On the issue of notice that required under S. 69(a) of ITPA that notice is significant since the courts have held that it is of no consequence if the instrument fails to state that the Trust Bank Eros Chemist and Widestrong Auctioneers Civ Apo 133 Unresported The court was unequivocal that failure to express the estate in clear terms the period whtihn which the power would be carried out would be invalidated on the notice. In making clear this point the court took some time to explain the purpose to be served by the notice and observed that the notice is to guard the rights of the mortgagor because if the power of statutory power of sale is exercised, the mortgagors interests would be extinguish and therefore the notice should serve to warn the mortgagor of the intended sale for the statutory right of sale to accrue a 3 months notice to lapse is provided. A notice seeking to sell the charged property must expressly state that t he sale shall take place after the 3 months notice and to omit to say so, as by law required is to deny the mortgagor a right conferred upon him by statute and this must render the notice invalid. There are instances where you need to serve notice before you can exercise a statutory power of sale. This was clarified by the court in the case of James O Oketch V. E A Building Society Where the court of Appeal stated that the law on the question as to whether statutory notice ought to be given by a chargee to the chargor are as follows: Section 69 of ITPA. In relation to when property passes, or vests, to the purchaser following the exercise of the mortgagee’s statutory power of sale and in the cause of deliberations in the same case, the court of appeal took time to state the law in the following terms that the purchaser acquires title to the suit property upon the fall of the hammer subject to the payment of the price so where the sale is through a public auction property falls at the fall of the hammer. In restating this principle of law the court cited the provisions of the ITPA as amended by Act NO. 19 of 1985 the mortgagors rights stood extinguished upon a contract of sale or after an auction came into existence i.e. the title to the property is acquired and the right to redeem is

distinguished following such a process. This position was retaliated in Sajab V. Amre Liwalla 1956 EACA 71 the court stated the position of a bona fide purchaser for value as follows provided security is offered the bona fide purchaser security for title therein cannot be impeached and the only remedy available to the Chargor lies in ac claim for damages against the Chargee. Mbuthia V. Jimba Credit Finance & Another the court emphasised that what that means in terms of the position of the purchaser is that the mortgagors right of redemption is lost as soon as the mortgagee sells the property by auction or enters into a private contract in respect thereof. This is the position under the ITPA which stated that the title obtained by purchaser is good as against the whole world. Under RLA sale of property would be subject to impeachment if fraud as a ground can be established provided this particular relief is done properly based on the fact that the chargee has been guilty of fraud, then the title can be questioned and that was the position as amplified in Patrick Kanyagia V. Damaris Wangeci and 2 others Civl Appeal 150 of 1993 unreported. the court would be inclined to grant a stay that would restrain the exercise of the mortgagee’s statutory of sale and courts will be inclined to do so where the chargor or mortgagor has ably shown that he/she does have a prima facie case. This was the holding of the court in Lavuna and others V. Civil Servants Housing Co. Ltd and Savings and Loans Ltd. Where it is found that a proper statutory notice of intention to realise security in the property subject of the charge has been issued and where the mortagor is unable to show that he/she has a prima facie case, no such stay can be granted and that is the view expressed by the court in the case of GEORGE GIKUBU MBUTHIA & OTHERS V. SMALL ENTERPRISES the application for stay was found to be a mere delaying tactic and lacked merit. No prima facie case was disclosed and no stay would issue. Aberdare Investments V. Housing Finance and Another the application for stay was based on the assertion that the Chargee ought to exhaust other remedies available to him before taking recourse to his right to statutory power of story and the court held that the choice of remedy for recovery was up to the borrower, who could proceed to realised security under any of the available remedies. WHEN THE COURT WOULD BE INCLINED TO GRANT AN INJUNCTION The courts will be inclined to grant a stay for a

1. Where the amount due and payable is disputed 2. Where the mortgagor has commenced an action to pursue a right of redemption; 3. Where the mortgagor has challenged the procedural requirements as adopted by

the mortgagee in conducting the sale. The effect of a stay is to restrain or put in abeyance any such process and the being injunctive as it were, such an order will only be granted where the applicant satisfies the conditions present. A stay is a matter for the discretion of the courts and the remedy may be declined or granted depending on the strength of the applicant’s case. There are instances where the courts would be inclined to injunction the mortgage role or the chargor. Where there is a

threat to get rid of the security, when the mortgagor or chargor have relieved the chargee or mortgagee of the security offered for the financial accommodation that has been given. In such cases they will be deprived of a fundamental ingredient of the mortgage or charge transaction on the basis of which they will or they are entitled to realise their security and so the chargee can successfully stop the chargor from dealing with the property charged in such a manner as would deprive him of the security. Isaac Kamau Ndirangu V. Commercial Bank of Africa Ltd. That was the holding. It should be clear that through these transactions, the mortgagor or chargor are at a disadvantage and since in any arrangement that involves unequal parties there is bound to be excesses, or the overall transaction would tend to favour more the advantaged party that has been recognised as the nature of mortgage and charge transactions. In Verno V Bethel the court stated that necessitors men are not truly speaking free men but to answer a present exigency will submit to any terms that the draftee will impose upon them. This then explains the underlying attitude that the courts have had towards cushioning or protection to the mortgagee or chargee in all these forms of transactions. It is recognise that the parties are not of equal bargaining power. CONTROLLED TRANSACTIONS: Controlled transactions are In much of what we have seen, parties are left to their own devices and regulation is limited or restricted to such provisions as may be made under the relevant legislation. In a lot of those instances that we have seen , there is no direct intervention from outside in the sense that an administrative or quasi judicial organ comes in to practically supervise the sort of relationship that they have. The controlled transactions therefore assume the form of administrative or quasi judicial interventions in appropriate situations because of the perceived weaknesses that one of the parties involved suffers from or because of the imperatives that are placed in protecting certain special interests or values. The case for control would have been appropriately made if firstly it is recognised that property owners ought not be allowed to enjoy roving and unfettered powers over their property in certain situations for such a state of affairs may militate against a general public interest. Secondly the case for control can be made where in situations involving proprietary transactions there are fundamental grounds that imply interventions to safeguard special interests. There is the consideration of the social as well as the economic values which merge to make a very strong case for control. There are basically 3 example which can be cited to elaborate the phenomenal control

1. In the case of landlord tenant relationship residential 2. Landlord tenant relationship business; 3. Agricultural Land;

What forms do the controls effected in these areas take? With regard to dwelling houses the Rent Restriction Act Cap 296 sets out tenancy standards below which voluntary agreements are not to fall and the aim of the Act is to protect tenants

of premises which are let out for not more than what is described as standard rent from arbitrary increases of rent or dispossession by greedy landlords or from any alterations that would adversely affect their well being. This is a social as well as economic value giving ground for effecting control. The Act goes on to designate the categories of people that qualify, any dwelling house let standard rent is defined as of July 1989 at 2500 is a protected tenant. In the event that it is not rent out as that date it falls to the Rent Tribunal to determine what rent is payable. Sub tenants as well as tenants are equally protected. In Desai V. Shah there are exceptions if the tenants are paying 2500 per month, they don’t automatically become protected tenant and the Act explains the exceptions such as accepted dwelling houses include property lent out by govt, local authorities or rent out to service tenants these tenants are outside the armbit of protection. S. 11 provides that rent can only be increased where the landlord has to pay increased rates or where he has improved the premises and where this has to be the case, it is not open for the landlord to do this unilaterally but must seek authority. It is only through the rent restriction tribunal that the terms can be altered by the Landlord. The tenant enjoys protection since the landlord cannot unilaterally increase rent. There are grounds that may be relied upon by the landlord when they want to throw tenants out which grounds must be sort for within the Act. Anything outside the Act is invalid, the Act restricts the sort of leverage that the landlord may have over the tenants and the idea is to restrict those powers that the landlord has over his property for the benefit of the tenants. The tribunal is incapable of enforcing its own orders and when it pronounces them they have to be enforced through the ordinary courts. With regard to Business premises tenancies, the relevant statute is the Landlord and Tenants (Business Premises) Cap 301 which sets out standards below which voluntary agreements cannot avail. Protection here depends on the duration of the tenancy and on the purpose for which the tenancy is created. S. 21 defines controlled tenancy as the tenancy of a shop hotel etc which has not been reduced into writing and is not for a period extending for 5 years … An essential feature, there is a requirement that termination of terms and conditions can only be carried out with the express provisions of the Act which are elaborate i.e. any party wishing to terminate must give notice and such notice must be channelled through the tribunal and the grounds to be cited must be from the Act and not extraneous and the elaborate procedure described applies. Any party wishing to challenge the others intended initiative must go through the tribunal and if there is a contest the matter must follow the laid down procedure. Tribunal enjoys wide ranging powers and like the rent restriction tribunal it suffers from inability to enforce its own orders which has to be through ordinary courts. AGRICULTURAL LAND In the first 2 instances, there is an attempt to cushion the tenant from the perceived injustice in the absence of intervention of the tribunals and the landlord is being put through a rigorous procedure if he is to exercise any of his power and the tribunal has the ultimate say safe for enforcing the order. That is a social realisation that we have weaker parties members of society who need protection and their means is limited and level of rent has to be regulated.

With regard to agricultural land, the fact that in our society which is dependent on agriculture, agricultural land means a lot that the persons with the legitimate expectations on that land go beyond the registered proprietor especially in the rural areas where land is registered in the name of the nominal head of the family. In the absence of intervention the people depending on the land need protection. The land control Act Cap 302 sets a judicial body known as the Land Control Board Section 3-5 a controlled transaction is defined under the Act as “any transaction specified in Section 6(1) and not excluded by S. 6(3) of the Act and these are leases, sale transfers and any other dispositions or dealings in regard to agricultural land which is situate in areas known as a land controlled area of the minister concerned. There are certain transactions exempt from control which includes transmission in land, where the govt country council is one of the parties in the transaction. The law is that such transactions shall be void for all purposes and of no legal effect whatsoever unless the necessary consent is sort and obtained from the Land Control Board as under S. 7 of that Act. There is a procedure to be followed in the event that one was to carry out dealings in respect of agricultural land, there has to be a lands control board meeting at which both parties have to appear (seller and purchaser) the meeting should be sufficiently advertised to enable any interesting parties refer to family members who depend on such land for a livelihood and they have a right of representation before the board and can challenge the intended transaction on any ground especially if it may leave them landless. The Board enjoys a wide range of discretion and can decline the consent or give the same after hearing representations including any objections. A number of consideration are in relation to possible difficulties that may be visited on those who depend on the land, and if the purchaser has too much land they can deny consent to purchase more. If the proprietor has alternative land and the sale would not jeopardise the status of his family then they will grant consent. The consequence of a transaction involving agricultural land is that in the absence of consent, the transaction is null and void and of no consequence and by virtue of the provisons of Section 22 of the Act can be ordered to vacate the property however any sums that may have exchanged hands are recoverable as a debt by way of a civil suit and an order may issue for a refund. Application for consent must be procured within 6 months of the intention to purchase. What is required is that within 6 months of commencements of the transaction, one must procure the land board consent.