The Knowledge Tree (Law Notes) : Tuesday, 19 May 2015 Property Law - Musol, Kenya
The Knowledge Tree (Law Notes) : Tuesday, 19 May 2015 Property Law - Musol, Kenya
The Knowledge Tree (Law Notes) : Tuesday, 19 May 2015 Property Law - Musol, Kenya
Notes )
The Lawyers' Arena. Find here anything and everything about Law.
Fixtures/Chattels
The fact of whether a chattel has been affixed to land so as to become part of the land is a question of law depending on certain
circumstances
The degree of annexation
The object of annexation
The general rule is that a chattel is not deemed to be a fixture unless it is actually fastened to or connected with land
or building. Mere juxtaposition or the laying of an article however heavy upon the land does not prima facie make it
a fixture even though it subsequently sits on the ground. If a super structure can be removed without losing its
identity it will not in general be regarded as a fixture. With regard to the object of annexation the test is to ascertain
whether the chattel has been fixed for its mere convenient use as a chattel or for the convenient use of the land or
building. It has been held elsewhere that this maxim has no application in kenya.
Shaw vs shah vevshi devshi
This is so because under Sec 108 of Indian Transfer of Property Act, a leasee may even after determination of the
lease remove at any time while still in possession of the property leased, all things which he has attached to the earth
provided he leaves the property in the state in which he received it.
In the above case the defendant shah obtained 2 decrees for execution against a leasee of a sisal plantation which
had certain machinery inform of . the leasee filed objection proceedings against the attachment by the p. It was held
that the machinery of this nature formed part of immovable property and were included in the charge over that
property provided they were fixed for beneficial use and improvement of that property. They were accessory thereto
and they were for the beneficial enjoyment of the land and they were for the permanent enjoyment of the land.
As a general rule, unless an item is physically fixed to the land it will not be considered as a fixture. Items which
rest on the property by their own weight such as a dutch barn, are likely to be regarded as fixtures. Similarly a green
house which is not physically attached to the land and which is moved periodically to various sites on the land will
not be deemed to be a fixture. Although it is generally true to say that an item will not be regarded as a fixture unless
it is physically attached to the land that alone is insufficient. The court will look at the purpose of the annexation to
determine whether something is or is not a fixture and in deciding this matter how the parties choose to describe a
particular object is not admin istartive. In the case of:
Leigh-vs- taylor
A tapestry attached by...to wooden frames was held not to be a fixture. The purpose of the attachment to the building
being to enable the tapestry to be enjoyed as an ornament rather than to enhance the building.
Berkley-vs-Poullette
The principle issue in dispute was whether paintings screwed to the wall and a large sandial on a plinth and a statue
weighing half a tonne were fixtures. The court of appeal held that they were not fixtures. Scarman LJ, considered
that the starting point in determining this issue was lay vs taylor and the essential issue is whether the purpose of
annexation was to enjoy the pics as pics or to enhance the structure of the building.
In the case of:
Holland-vs-Hodgson
Blackburn J explained that blocks of stones placed on top of another without any mortar for the purposes of forming
a dunny stone wall would become part of the land although the same stones if deposited in a building yard and for
convenience sake stacked on top of each other in the form of a wall would not form part of the land. The issue in
cases of this nature seems to be the intention of tha party constructing the item in question and the damage which
would be caused to it by removing it.
When describing property one will come across the terms fixtures and fittings. A fixture is something which due to
its attachment to the land becomes part of the land itself. Fittings on the other hand are chattels which are physically
on the property but are not part of it. What determines whether an item is a fixture or a fittting is the degree of
attachment to the land. There is another category of items that are brought to the land and although they are not
fixture per se, they become part of the land. (Exceptions) this issue arose in the case of
Elite stone ltd-vs.-Morris
The plaintiff owned land on which there were constructed wooden bungalows. The bungalows rested upon concrete
pillars which were attached to the land and to remove them from the land would have required demolition. The issue
that arose was whether the bungalows were a building or a chattel. The house of Lords unanimously held that the
bungalows were part of the land. Lord Lloyd of Berrick adopted a tripatight...as follows: an object which is brought
onto land maybe classified under one of three broad heads. It maybe;
Chattel,
Fixture,
Part and parcel of the land itself.
Objects in categories b and c are treated as being part of the land.
Such a tenancy differs from a trespass in that entry to the premises was lawful and landlord must re-enter before
being able to sue trespass.
Remainders and reversions
An estate in land may exist either in the form of possession, in remainder or reversion. An estate in
possession gives immediate right to possession and enjoyment of the land. Estates in remainder or reversion in the
other hand are future interests (Some other person is always entitled in possession). Remainder denotes a future gift
to some person not previously entitled in the land. Reversion on the other hand signifies the residue of an owner’s
interest after he has granted away some lesser estate in possession to some other person.
25th November 2014
The absolute estate
Under English property law, where a person is registered as a proprietor of a freehold estate, the registration of that
person as the first proprietor vests in the person so registered an estate in fee simple, in possession in the land
together with all rights, privileges and appurtenances belonging or appurtenant thereto subject to the following rights
and interests:
a. Encumbrances and other entries if any appearing on the register.
b. Unless the contrary is expressed in the register subject to such overriding interest if any that affect the land.
c. Where the first proprietor is not entitled to the land, for his own benefit to the registered land subject as between
himself and the person entitled to minor interests to any minor interests of such person of whom he has notice but
free form all other estates and interest whatsoever including those of her majesty.
This principle works two-fold.
i. It stipulates what the statute gives to a proprietor of absolute interest in land.
ii. Secondly, the rights which it takes.
Under Section 24 of the Land Registration Act of 2012:
(a) The registration of a person as the proprietor of land vests in that person, the absolute ownership of that land
together with all rights and privileges belonging or that are appetent thereto.
(b) similarly the registration of a person, the proprietor of a lease vests in that person (the lease hold) interest
described in the lease together with all implied and expressed rights and privileges belonging or appetent thereto
and subject to all implied and expressed agreements, liabilities or incidents of the lease.
These provisions reflect the English position of a holder of absolute interest in land.
Under Section 25 of the land registration act, the rights of a proprietor whether acquired on first registration or
subsequently for valuable consideration or by an order of court cannot be defeated except as provided in the act and
shall be held by the proprietor together with all privileges and appurtenances belonging thereto free form all other
interest and claims whatsoever.
They are however subject to the following:
1. To the leases, charges and other encumbrances and to the conditions and restrictions if any shown in the register.
2. To such liabilities, rights and interests as affect the same and are declared by section 28[2] not to require the noting
on the register unless the contrary is expressed in the register.
Under s. 25(2), nothing in that section shall be taken to relieve a proprietor from any duty or obligation to which the
person is subject as trustee.
Under s. 26(1) of the land registration act, the certificate of title issued by registrar upon registration of a proprietor
of land or to a purchaser of land upon a transfer of transmission by the proprietor shall be taken by all courts
as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible
owner subject to the encumbrances, easements, restrictions or conditions contained or endorsed in the certificate and
the title of that proprietor shall not be subject to challenge except:
a. On the grounds of fraud or misrepresentation to which the person is proved to be a party.
b. Where the certificate of title has been acquired illegally and procedurally or through a corrupt scheme.
Under s. 28 of the LRA, it provide for what constitutes the overriding interest. Under the same section, unless the
contrary is expressed in the register, all registered land shall be subject to the following overriding interest as may
from time to time subsist and affect the same without there being noted on the register.
The following are the overriding interests:
a. Spousal rise over matrimonial property.
b. Trusts including customary rights
c. Rights of way, rights of water and profits subsisting at the time of registration under the act.
d. Natural rights of lights, air, water and support.
e. Rights of compulsory acquisition, resumption, entry, such a user conferred by other written law.
f. Leases or agreement for leases for a term not exceeding two years. Periodic tenancies and indeterminate tenancies
g. Charges of unpaid debts and other funds which without reference and registration under the act are expressly
declared by any written law to be a charge upon the land.
h. Rights acquired or in the process of being acquired by virtue of any written law relating to the limitation of action
or prescriptions.
i. Electric supply lights, telephone and telegraph lines and poles, pipelines, aqueducts, canals, weirs, dams erected
constructed or lay in pursuance or by virtue of any power conferred by any written law.
j. Any other rights provided under any written law.
Under s. 29 of the LRA, every proprietor at the time of acquiring any land, lease or charge shall be deemed to have
had notice of every entry register relating to the land, lease or charge existing and the type of acquisition.
Lecture III
There have been various judicial interpretations in the rights of an absolute proprietor and the rights that they have
over land
In the case of Obiero vs. Opiyo and Another, the plaintiff was a wife of Opiyo who died around 1938/39 and the
defendants were the sons of a co-wife. She was the registered proprietor of a parcel of land. She claimed damages
for trespass against the defendants and an injunction to restrain them from continuing or repeating acts of trespass.
The defendants in their defense stated that they were in possession of the land in dispute and that they had cultivated
it over a long period of time. They claimed that they were the owners of the land in dispute under customary law and
denied the plaintiff’s title to the land. This dispute had been heard and determined in the plaintiff’s favor by a land
adjudication committee and the defendant did not appeal against the decision.
Benet J as he then was not satisfied on the evidence that the defendants ever had any rights to the land under
customary law. He held that rights under customary law are not overriding interests under s. 30 of the Registered
Land Act. (He said that the rights of a registered proprietor were to be served upon any person….) the defendants
were evicted from the land although they had been in possession and actually occupation, and cultivated the land.
In a case of Esiroyo vs. Esiroyo & Another, the plaintiff was the registered proprietor of the land under Registered
Land Act. He wanted letters of eviction against the defendants of his land. He also claimed for damages for trespass
on the land, and an injunction to restrain the defendants, their wives and children or servants from continuing or
repeating any acts of trespass. The defendants were natural sons of the plaintiff and claimed that they were entitled
to certain portions of land and to occupy and cultivate those portions because it is land which came to their father
from his father and grandfather and so forth. They claimed that their rights were well founded under the luhya
customary law. The courts held that rights under customary law are not overriding interests under s. 30 of the
Registered Land Act. The court seems to have adopted the position that the plaintiff was no longer bound by
customary law as the provisions of the act had taken away the matter in dispute out of the purview of customary law.
This means that customary law rights are extinguished upon registration of land under the Registered Land Act.
The court of appeal in a later case of Elizabeth Wangare Wanjohi & 2 other vs. official receiver and interim
(continental credit finance ltd) endorsed and affirmed the statement of law as stated in the case of Obiero and the
case of Esiroyo with regards to rights under customary law not being overriding interest under s. 30 of the LRA and
also with regard to the extinguishing of customary law by registration of land under the provisions of the RLA.
OVERVIEW: There was default in repayment of loan; applicants did not have money to pay the loan; they paid for
a perpetual injunction restraining the liquidator from …)
The court of appeal went on to examine the legal concept of overriding interest upon which the applicants were
relying and s. 28 and 30(g) of the RLA were considered. The court held that “customary rights as to the occupancy
of the suit land as the applicants had were not overriding interests within s. 30 (g) of the RLA and that rights under
customary law are extinguished upon registration of land under the RLA.
In another case of Allan Kiama vs. Ndia Mathunya and 9 others, one Karuma Kiragu had transferred land to the
appellant Allan Kiama, who subsequently filed suit to eject respondents on grounds that they were trespassers. The
respondents counterclaimed the case on the ground that the land belonged to their clan and therefore prayed for a
declaration that the appellant held the land in trust for the respondents and alternatively the respondents prayed for a
declaration that the appellant held the land subject to the rights of possession, occupation and cultivation of the
respondent. The court of appeal declined to issue a declaration of land in trust which had been granted in the high
court and this was despite the fact that there was evidence that during land adjudication and registration, the suit
land was registered in the name of Karuma Kiragu so that he could later transfer the land to the rightful owners after
the rightful owners had been released from detention. Some of their relatives were on the land during land
adjudication and registration. Karuma Kiragu who had been registered as absolute owner, on first registration
without the words “as a trustee” having been entered on the land registrar had sequent transferred the land to the
appellant. In refusing a declaration of trust, the Court of Appeal held that it had not been proved by expert
evidence that Kikuyu Customary law contains the concept of a resulting trustwithin the jurisprudence as
demanded by s. 48 and 51 of the Evidence Act. The court of appeal therefore went ahead to order rectification of
the land register in favor of the respondents on the basis of the overriding interest under s. 30 (g) of the RLA.
QUESTION ; ANALYZE THIS CASE LAW.
IN the case of Gathiba vs. Gathiba , the plaintiff brought a suit against a defendant who was his younger brother
seeking him an order to restrain him from trespass or carrying any acts in relation to a piece of land of which the
plaintiff was registered as an owner under the RLA. The plaintiff stated that he had solely paid for the purchase price
of the land and it belonged to him absolutely and free from any claim by any family member. The defendants
opposed the suit claiming that the land belonged to the family as it had been purchased by their late father. During
the period of land adjudication and registration which came after their father’s death their clan decided that the land
should be registered in the name of the plaintiff to hold it on his own behalf and on behalf of the defendants. The
defendant was not registered as a joint owner of the land ostensive because Kikuyu customary law did not permit
unmarried men to own land. The court held as follows:
a. Kikuyu customary law contained consent of trust or a resulting trust within its jurisprudence as demanded by s. 48
and 51 of the Evidence Act.
b. A first registration by virtue of s. 143(1) of the RLA should not and cannot be rectified as s. 143(1) preventing
rectification is mandatory and absolute.
c. Rights under customary law are not overriding interests under s. 30 of the RLA and customary law rights in land
are extinguished upon registration of the land under RLA.
d. The RLA creates a ladder of protected interests that can be arranged as follows;
a. Absolute proprietorship or absolute ownership under s. 27 (a)
b. Proprietors or owners registered in fiduciary capacities (trustees) and are therefore not absolute proprietor or
absolute owners; they are in the proviso of s. 28.
c. Leaseholds identified in s. 27(b) of the RLA and this must be registered
d. Interests described as charges and other encumbrances and conditions as well as restrictions shown in the register.
These are in s. 28(a) and must be shown or entered in the register.
e. The overriding interest as spelled out in s. 28(b) as read with s. 30 of the RLA, they are the only interest which are
not registered or entered in the relevant land registers if any have to be noted in the register a land registrar must an
entry.
Lecture IV
A second appeal was then filed, the court held among other things:
a. That those rights under customary law are subject to rights under written law and are excluded under the clear
language of s. 27 and 28 of the RLA. Customary law rights in land are distinguished upon registration of that land
under the act and rights under customary law are not overriding interest under s. 30 of the act.
b. The court further stated as follows:
However since the same registration recognizes trust in general terms without specifically excluding trust from
customary law and since African customary law in Kenya generally have the concept or notion of a trust inherent in
them where a person holding a piece of land in a fiduciary capacity under any of the customary laws has the piece of
land registered in his name under the act with the relevant instrument of acquisition either describing him or not
describing him by the fiduciary capacity that registration signifies recognition by the act of the consequent trust with
the legal effect of transforming the trust from customary law to the provision of the act because according to the
proviso of s. 28, such registration does not relieve a proprietor from any duty or obligation to which is subject as
trustee.
c. A trust arose from the possession and occupation of the land by the respondent which had the protection of s. 28
and 30(g) of the act.
Under s. 78 of the land act the provision of charges have a retrospective event. The land act therefore applies to
charges that were created before the act came into force. Reference to charged land has the meaning of charged land,
charged lease and a second or subsequent charge.
The land act at s.79 creates informal charges by way of a written and witnessed undertaking to charge in land or
interest in land or by way of deposit to title of documents with the charge. This is a form of equitable charge.
Under Registered Titles Act, equitable charge is created by deposit of documents of title to land under the act
evidenced by an instrument in writing. Memorandum of deposit of title is to be registered under equitable mortgages
act. An equitable mortgage or charge is created when the borrower deposits with the lender the documents of title
with intent to create security thereon.
Under the RLA it was controversial as to whether an equitable charge may be created under the act. It was argued on
the one hand that RLA does not provide for equitable charges as the title documents is not itself a title per se and
further that the RLA provides for how to create a security. In the case of K.C.F.C vs. Ngeny the court of appeal held
that s.163 of the RLA imports the common law principle of equity including equitable charges. The express
provision recognizing equitable charges under the land act puts this matter to rest.
Under section79 (3) of the RLA a charge of a matrimonial home shall be valid only if any document or form used
in applying for such a charge or used to grant the charge is executed by the chargor or any spouse of the chargor
leaving in that matrimonial home or there is evidence from the document that it has been accented to by all such
persons.
Issues:
i. Who qualifies as a spouse?
ii. What is a matrimonial home?
Under the act, matrimonial home refers to any property owned or leased by one or both spouses and occupied by the
spouses as their family home.
Under s. 79(5), a normal charge shall take effect only when it is registered in a prescribed register and a charge shall
not be entitled to exercise any of the remedies under that charge unless it is registered.
What are the ingredients of a charge?
Every charge instrument must contain the following:
i. Terms and condition of sale.
ii. An explanation of the consequences of default
iii. The reliefs of the chargor including the right of sale
Under s. 81(1) of the act, charges shall run according to the order in which they’re registered. Informal charges are
also ranked according to the order in which they are made but a registered informal charge shall have priority over
unregistered informal charge.
Subject to the provisions of the act, a charge may make provisions to the charge to give further credit to the
chargor to a current or continuing account. This is what is called tacking.
Variation of interest rates
Under s. 84(1) of the act, where it is contractually agreed that the rate of interest is variable, the rate of interest
payable under the charge shall not be increased or reduced without a written notice served on the chargor by the
charge.
The chargee must give the chargor at least 30days notice of the reduction or increment. His notice must state clearly
and in a manner that can be clearly understood the new rate of interest to be paid.
Covenants, conditions and powers implied in charges
Under s. 88(1) of the land act, in every charge there shall be covenants binding the chargor to:
a. Pay the principle money on the day appointed in the charge agreement.
b. To pay all rates, charges, taxes, rent and other outgoings that are payable in respect to the charged land.
c. To repair and keep in repair all buildings and improvements upon the charged land and to permit the chargee and
chargee’s agent to inspect the state and condition of the building.
d. To ensure by insurance or any other means that maybe described or which are appropriate.
e. In the case of agricultural land, to use the land in a sustainable manner.
f. Not to lease or sub-lease the charged land or part of it for a period longer than one year without the consent of the
chargee.
g. Not to transfer, assign or lease the land or part of it without the consent of the chargee.
h. In the case of a charge of a lease, during the continuance of the charge to pay, perform and observe the rent,
covenants and conditions contained in or implied by and in the lease.
i. If the charge is a second or subsequent charge that the chargor will pay interest from time to time accruing on the
prior charge when it becomes due and will at the proper time pay the principle sum.
j. If the chargor fails to comply with any of the covenants implied, the chargee may spend any money which is
reasonable to remedy the breach and they add the money to the principle sum.
Remedies of a chargee
The remedies that obtain to a chargee under the RLA included the realization of security by way of statutory
power of sell, appointment of a receiver and institution of a suit by the chargee to recover the loan amount as a
civil debt.
RLA outlawed the remedies for closure and the right of possession.
Exercise right of sale
Institute a suit
Appoint a Receiver
Under the ITPA the chargee or mortgagee would be titled to exercise statutory power of sale, appoint a receiver
right to for closure and the right to take possession.
Under s.90 (1) of the Land Act, if a chargor is in default of any obligation fails to pay interest or any other periodic
payment or any part therefore due under any charge or in the performance or observation of any covenant, express
or implied, and continues to be in default for one month, the chargee may serve on the chargor a notice in writing to
pay the money owing or to perform and observe the agreement as the case may be.x
The notice is required to notify the recipient (chargor) on the following:
i. Nature and extent of default by the chargor
ii. If the default is about failure to perform or observe any covenant in the charge, the thing that the chargor must do
or desist from doing so as to rectify the default and the time being not less than two months by the end of which the
default must have been rectified
iii. If the default consists of non-payment of any money due under the charge, the amount that must be paid to rectify
the default and the time being not less than 3 months by the end of which the payment in default must have been
completed.
iv. The consequences that if the default is not rectified within the time specified in the notice the chargee will proceed
to exercise any of the remedies referred to in the act.
v. The right of the chargor in respect of certain remedies to apply to the court for the relief against those remedies. If
the chargor does not comply within two months after the debt of service of the notice then the chargee may :
a. Sue the chargor for any money a due and owing under the charge
b. Appoint a receiver of the income of the charged land.
c. Lease the charged land or if the charge is of a lease, sub-lease the land.
d. Enter into possession of the charged land
e. Sell the charged land.
Chargee sues for money owed if:
a. The chargor is personally bound to pay the money.
b. If by any course other than the wrongful act of the chargor or chargee, the security is rendered insufficient and the
chargee has given the chargor sufficient time to give additional security.
c. If the chargee is deprived of the whole or part of the security through a wrongful act or default of the chargor
Under s. 92(1) the court may order the postponement of any proceedings brought under this section until the chargee
has resolved all the remedies relating to the charged land.
A chargee may exercise a power to sell the land. Before exercising the power of sale, the chargee shall serve the
charger with a notice to sell which has to be in the prescribed form and shall not proceed to complete a sale until at
least 45 days have elapsed from the date of service of that notice of sale.. A copy of the notice is supposed to be
served among others;
i. the commission if the charged land is a public land;
ii. the holder of the land out of which the lease has been granted if the charged land is a lease;
iii. spouse of the chargor who had given the consent ;
iv. Any leasee and sub-leasee of the charged land.
v. Guarantor of the money advanced under the charge
Before a chargee exercises the right to sale:
i. A frost sale valuation has to be done.
ii. If the sale is to proceed by public auction, the chargee shall ensure that the sale is publicly advertised in such a
manner and form as to bring it to the attention of interested buyers.
iii. The sale shall be made in a prescribed form and the registrar shall take it as sufficient evidence that the sale
has taken place.
Courts have intervened where a statutory notice issued is not valid.
Case St. John vs. cooperative bank of Kenya; the court held that the commission to serve a valid statutory
notice is a fundamental breach of statute and it delegates the chargor’s equity of redemption. If a statutory notice is
not valid, the chargee’s statutory power of sale does not approve.
ADVERSE POSSESION
What is adverse possession?
The doctrine of adverse possession is closely related to the limitation of actions and restriction in relation to land.
The basis of limitation is to shut out the assertion of a right beyond a certain prescribed period of time. Rights must
be asserted within time failure to do so results into their extinction. There are different limitation period for different
rights.
Tort-3yrs
Contract - 6yrs
For land, the general limitation period is 12 years. The limitations of actions act at section 7 provides that an act
may not be brought by any person to recover land after the end of 12 years from the date of which the right of
action accrued to him or if it first accrued to some person through whom he claims to that person.
s. 17 of the limitation of actions act provides that subject to s.18 at the expiration of period provided by this act for
a person to bring an action to recover land including a redemption action, the title of that person to the land is
extinguished.
s. 37 of the act provides that the act applies to land registered under the GLA,RTA,LTA or RLA in the same manner
and to the same extent as it applies to land not so registered.
Under s. 38 of the act where a person claims to have been entitled to adverse possession to land registered under any
of the acts, sighted in s.37 or land comprised in a lease registered under any of those acts, he may apply in the high
court for an order that he be registered as the proprietor of the land or lease in place of the person registered as
proprietor of the land.
RUNNING OF TIME
There are three issues that need consideration:
i. When does time begin to run?
ii. Whether the time can be postponed & What will postpone time
iii. Can time start running afresh?
Time begins to run when the owner of the land has been dispossessed (driven out of possession) or has
discontinued his possession (abandoned the premises) and the person claiming adverse possession has now
assumed possession in place of the original owner.
The possession must be adverse i.e. inconsistent with the title of the true owner. And will therefore not cover
possession by way of a license or possession with the permission of the owner. There must not only be mere
possession but also possession with intention to possess the land to the exclusion of all others. (Animus Possidendi)
Fencing of land is strong evidence of adverse possession
It is not a must for the adverse possessor himself to be in occupation, it is enough if he has granted tenancy or
possession; exclusive control of possession is necessary.
Possession must consist of the following:
i. Be factual; actual factual possession
ii. Be accompanied by animus Possidendi
iii. Any form of acknowledgement to the owner will negate any intention to posses
SUCCESSIVE SQUATERS
If a squatter sells the land, he can give the purchaser a right to the land which is as good as his own; the same applies
to gifts and other dispositions in land and to devolution on his intestacy.
The person taking over the squatter’s interest can add the squatter’s period of possession to his own period. This
could also happen if a second squatter dispossesses a first squatter, this is so because time begins to run against the
owner from the time adverse possession begun. For as long as possession continues uninterrupted, it does not matter
who continues with it.
POSSESION ABANDONMENT
If a squatter abandons possession before expiring of a period of 12years and some time passes before someone else
takes possession, the land during duration under which there is no possession ceases to be in adverse possession. If a
second squatter takes over time starts to run afresh.
ADVERSE POSSESSION AND THE REQUIREMENT OF LAND CONSENT BY THE LAND CONTROL
BOARD
There may be a case where a person enters into sale agreement for land with another and the consent of the land
control board is not sought. Such a transaction becomes void and expiry after six months. The issue that arises is
whether such a purchaser can acquire good title to the land by adverse possession.
s. 16 of the land control act require consent for sales, leases etc. but no consent is required for adverse possessor to
acquire title.
Case of Matheri vs. kanji
The court held that a person is entitled to be registered as the proprietor of land which he has acquired by virtue of
occupation even where the initial sale transaction became void for want of consent by the land control board.
In another case of Samuel nyakeregu vs. Samuel onyaru
The trial court; portion of land which the plaintiff had had possession of was ascertainable .
On appeal: the court of appeal held that for about 19 years, the respondent was in exclusive possession of the portion
of land bought from the deceased openly and as of right and during all this time the respondent’s said possession
was not interrupted by the registered proprietor. The court held that the respondent had acquired prescriptive right
over the portion of land occupied by him and was entitled to be registered by him.
In the case of wambugu vs. njuguna
The court of appeal held that in order to acquire adverse possession, the owner of the land must have lost his right to
the land by either being dispossessed from it or by discontinuing his possession of it. Occupation by virtue of
employment would be an occupational license. A licensee cannot claim adverse possession.
A LICENSE….
Such rights are common in bail life and include the right to lodge in a person’s house; going onto his land to play
cricket; storing goods on his premises; or boarding his home
A license is a mere defense of an action in tort and does not confer an estate or an interest in land.
A license cannot therefore bind a successor in title of the licensor. There is a big line between a lease and a license.
Difference between a lease and a license
Where the requirements of a tenancy are not satisfied, the interests can be no more run a license. E.g. if A own a
lodging house and sells it, B the purchaser can recover possession from the lodgers who in law are mere licensees
not withstanding their agreements.
TYPES OF LICENCES
Licenses can take various forms. There are however three types;
i. Bare licenses – this is the simplest form of alicense. It is not supported by any contract such as a glatuitor’s
permission to enter a house or to cross a field. Such a license can be either expressly or …a bare license can be
revoked at any time on reasonable notice without rendering the licensor liable in damages but the licensee will not
be held as a trespasser until he has had reasonable time to withdraw.
ii. Contractual license; this is a license that is granted under some terms of some contract which restricts the
licensor’s rights to revoke it. The contract is normally express although it can also be implied. Contractual licenses
are subject to the same rules which govern all contract.
iii. Licenses coupled with an interest; a right to enter another person’s land to hunt and take away a deer killed or to
enter and cut down a tree and take it away involves two things:
a. A license to enter the land
b. The grant of an interest(aprofi aprendre) in the deer or the tree.
At common law such a license is both irrevocable and assignable but only as an adjunct of the interest with which it
is coupled. It has no independent existence merely as a license.
COMPULSORY ACQUISITION
HOW THE CONSTITUTION AND NEW LAND LAWS HAVE BEEN APPLIED
Certain governmental actions developmental in nature for instance building of roads require land. The state may
therefore take property from its private owners and reallocate it to governmental preferred uses.
Compulsory acquisition also domain is the power of the state or its asides to acquire private property for public
purposes subject to the payment of compensation. Whenever the government exercises its power, it forces
involuntary transfer of property from private owners to itself or asides. The power of eminent domain is derived
from the feudal notion that as a sovereign, the state holds the radical title to all land within its territory.
In Kenya, the power is embodied in the constitution which requires the private property can only be acquired
compulsorily for public use.
NOTE article 75; 173 & 118 of the Kenyan constitution.
The COK further requires that such public use must be weighed against the hardships that may be caused to the
owner. The constitution further requires that the acquisition must be accompanied with payment of adequate
compensation.
The rules governing acquisition of trust land and compensation were contained in the trust land act whereas other
cases of compulsory acquisition were remunerated by land acquisition act which has been repealed by land act,
2012.
The state has powers to regulate the use of any land or any interest in or right over any land in the interest of
defense, public safety, public order, public morality, public health. The COK creates Lands commission under ART
67. The functions of the national land commission are:
To manage public land on behalf of the national government
To recommend a national land policy to the national government.
To advise the national government on a comprehensive programme for registration of title in land throughout
Kenya.
Conduct research related to land and the use of natural resources and to make recommendations to appropriate
authorities.
To initiate investigations on its own initiative or on a complaint into present or historical land injustices and
recommend appropriate redress.
To monitor and have oversight responsibilities over land use planning throughout the country.
The land act provides for the procedure for compulsory acquisition of land. Under sec 107 of the Act, whenever the
national or county government is satisfied that it may be necessary to acquire some particular land under sec 110
then the respective cabinet secretary or county executive committee member shall submit a request for acquisition of
public land to the commission to acquire the land on its behalf. The commission is required to come up with a
criteria and guidelines to be followed by the acquiring authorities. The commission may reject a request from an
acquiring authority if it does not meet the requirements of subsection 2 and Art 40(3) of the COK. Provision may be
made for compensation to be paid to occupants in good faith of land acquired under clause 3 who may not hold title
to the land. Upon approval of a request under subsection 1, the commission shall publish a notice to that effect in the
gazette and the county gazette and shall deliver a copy of the notice to the registrar and to every person who appears
to the commission to be interested in the land.
Interested persons include any person whose interest appears in the registry, spouse or spouses of any such person as
well as any person occupying the land and the spouse or spouses of such persons. Upon service of the notice, the
registrar shall then give a notice to the register of all the land to be compulsorily acquired shall be geo-referenced
and authenticated by the office or authority responsible for survey at both national and county governments. Once an
entry has been made under sec 108, the commission shall then promptly pay in full just compensation for any
damage resulting from the entry. Under sec(1)(f)(2) if a land has been acquired for public purpose or interest and the
compulsory acquisition fails or seizes, the commission may offer the original owners or their successors in title pre-
emptive rights to re-acquire the land but upon restitution to the acquiring authority, the full amount paid as
compensation. The commission has powers to make rules to regulate the assessment of just compensation. Under
sec 112(1), at least 30 days after the publication of the notice of intention to acquire land, the commission is required
to set a date for an inquiry to hear issues of propriety and claims for compensation by persons interested in the land.
The notice shall be published in the gazette or county gazette at least 15 days before the inquiry.
Kigika developers ltd-vs-Nairobi city commission
Kanini farm ltd-vs-commissioner of lands
Cases:
The act repeals the land disputes tribunal act no. 8 f 1990
On 28thjuly 201*
Art. 159 of the constitution
s. 1A and 1B of the civil procedure act
s.3 of the environment and land act
suggestions
magistrate’s court shall continue to hear and determine all cases relating to environment and the use and related
to and title to land whether pending or new in which the courts have requisite jurisdiction.
…shall continue to hear environmental matters in which the tribunal has jurisdiction as conferred by the magistrates
and …appeals from the magistrates court shall lie on the magistrate’s and land’s court
[1] While it is similar to life estate it differs in that a person’s life interest will last for the life of
another person instead of their own. Pur autré vie can occur when a contingent remainder is
destroyed, in a doctrine of merger situation, where one person acquires the life estate of
another and thereby destroys the remainder not already vested.
[2] (overriding interests)
[3] http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=2&cad=rja&uact=8&ved
=0CCkQFjAB&url=http%3A%2F%2Fthelawdictionary.org%2Fjus-
accrescendi%2F&ei=OmOFVIXUFcfyUvvfgxg&usg=AFQjCNGcZE6_ITFcJeeRQIVSbTP_aVFu
aA&sig2=b_dsZlzLMOAEJNZ4Q01C7w&bvm=bv.80642063,d.d24
[4] Inter vivos (Latin, between the living) is a legal term referring to a transfer or gift made
during one's lifetime, as opposed to a testamentary transfer (a gift that takes effect on death).
at May 19, 2015
Email ThisBlogThis!Share to TwitterShare to FacebookShare to Pinterest
No comments:
Post a Comment
Newer PostOlder PostHome
Subscribe to: Post Comments (Atom)
Company law / Law of Business Associations
INTRODUCTION Section 2 (1) of the Companies Act Cap 486 Laws of Kenya states what company
means as ' a company formed and registe...
About Me
Blog Archive
► 2018 (7)
► 2017 (76)
► 2016 (19)
▼ 2015 (16)
o ► December (1)
o ► August (6)
o ► July (2)
o ► June (4)
o ▼ May (2)
PROPERTY LAW -MUSOL, KENYA
INFORMATION AND THE LAW - INTELLECTUAL PROPERTY
o ► January (1)
► 2014 (16)
Report Abuse
Followers
Translate
Powered by Translate
Subscribe To
Posts
Comments
Popular Posts
SAMPLE OF A PLAINT IN KENYA
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT............. CIVIL SUIT NO………..OF 2015
PETER KIAMUNGE………………………………………………………….PLA...
A CRITIQUE OF THE BANKRUPTCY ACT AND PROPOSED REFORMS
This Paper discusses the Law of Bankruptcy in Kenya as governed by the Bankruptcy Act of Kenya (cap
53 Laws of Kenya, provi...
NOTES ON DELAY DEFEATS EQUITY & EQUITY FOLLOWS THE LAW MAXIMS
DELAY DEFEATS EQUITY OR EQUITY AIDS THE VIGILANT AND NOT THE INDOLENT: (
Vigilantabus, non dormientibus, jura subveniunt) The ma...
COMPANY LAW NOTES -Kenya (pursuant to the 2015 Act)
INTRODUCTION This course is primarily concerned with companies as defined in the companies Act,
Cap. 2015 of the Laws of Kenya. These are ...
Equity law in Kenya
THE LAW OF EQUITY EQUITY LECTURE 1 TOPICAL OUTLINES 1. Historical Origin and
Development of Law of Equity in England 2...
COMMERCIAL LAW - KENYA LAW
PART ONE INTRODUCTION TO COMMERCIAL LAW Definition There is no universally accepted
definition of commercial law. Some examples...
SAMPLE OF PLAINT ON NEGLIGENCE (Negligence-personal injury claim)
REPUBLIC OF KENYA IN THE CHIEF MAGISTRATE'S COURT AT NAIROBI (MILIMANI COMMERCIAL
COURTS) CIVIL CASE NO. OF 1...
Person with disabilities and position of Kenyan laws as regards provision of jobs.
The Persons with Disabilities Act Cap 133 the Laws of Kenya, Section 11, requires the Government to
take steps with a view to the full real...
tax law notes 2015(edited) -Kenya
TAX LAW NOTES 1) Historical development 2) Tax structure-Taxes levied in Kenya
3) Personal and business taxati...
LAW OF CONVEYANCING/PROPRIETARY RIGHTS AND TRANSACTIONS
ACRONYMS RLA - REGISTERED LAND ACT LRA - LAND REGISTRATION ACT RTA - REGISTERED
TITLES ACT GLA - GOVERNMENT LANDS ACT TOPIC 1 WH...
67987
Popular posts
SAMPLE OF A PLAINT IN KENYA
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT............. CIVIL SUIT NO………..OF 2015
PETER KIAMUNGE………………………………………………………….PLA...
A CRITIQUE OF THE BANKRUPTCY ACT AND PROPOSED REFORMS
This Paper discusses the Law of Bankruptcy in Kenya as governed by the Bankruptcy Act of Kenya (cap
53 Laws of Kenya, provi...
NOTES ON DELAY DEFEATS EQUITY & EQUITY FOLLOWS THE LAW MAXIMS
DELAY DEFEATS EQUITY OR EQUITY AIDS THE VIGILANT AND NOT THE INDOLENT: (
Vigilantabus, non dormientibus, jura subveniunt) The ma...
Followers
Hom
e
Search This
Blog
Search
Follow by Email
Submit
About Me Pages
Home
Knowledge tree b