THE LEGAL FRAMEWORK REGULATING LAND IN KENYA - HISTORICAL

AND PRESENT .

GROUP 5.

MEMBERS

1.Francis Kongo Kitheka L250/23473/2022.

2.Brian Mwandonga Ngala L250/23423/2022.

3.Mounde Charity Kerubo L250/23527/2022.

4.Magoma Brigide Maina L250/23523/2022.

5.Jane Njeri Kariuki L250/23425/2022.

6.Francis Amukhoye L250/23500/2022.

7.Faith Njeri Kamau L250/23427/2022.

8.Ruth Njeri Kamau L250/102589/2022.

9.Magangi Brian Anyiega L250/23510/2022.

10.Felix Muthui Maingi L250/23443/2022.

 INTRODUCTION

This chapter aims to examine the various pieces of legislation, which as already noted are
what constitute Kenya's primary source of property.This will serve to tie up the prior
discussion on the philosophical origins of colonialism, particularly when we examine the
actual reasons which led to what may be said to be the onset of administration of property
rights in Kenya.We have various acts and ordinances but among them some have been
repealed,the repealed acts and ordinance include:
● The Registration of Documents vv. Ordinance 1915
● The Land Title Act
● The Registration of Titles Act 1920
● The Indian Transfer of Property Act 1882
● The Government Lands Act
● The Registered Land Act 1963
● Land Disputes Tribunal Act 1990
We are going to look at the following acts:

● Physical Planning Act 1996

● Landlord and Tenant (shops, hotels and catering) 1996
● National Land Policy 2009
● Constitution of Kenya 2010
● Environment and Land Court Act 2011
● National Land Commission Act 2012
● Land Registration Act 2012
● Land Act 2012.
● Sectional Properties Act 1897
● The Land Control Act 1967

1) PHYSICAL PLANNING ACT. ( No: 6 of 1996)

It is an Act of Parliament which came into operation on October 1998.In its preliminary, the
main role was to provide for the preparation and implementation of physical development
and for connected purposes.It outlines rules for physical planning in Kenya,establishes the
physical planning committee and also provides for appointment of officials including director
of physical planning.
In legal perspective, physical planning is opined to be a set of actions aimed at improving the
physical, social and economic welfare of a place and its dwellers.It emphasises the
organisation of land uses so that people enjoy the highest achievable degree of efficiency in
resource utilisation.
This act in recent days gave effect to the legislation of the statute, Physical and Land use
Planning Act of 2019 established under the Ministry of Lands Housing and Urban
development with a key purpose of initiating, formulating and reviewing the national land use
policy. Basically the act makes provisions for the planning,use, regulation and development
of land in Kenya.
Property law is directly linked with the physical planning act in four key perspectives.
Land utilisation.
In light of section 41 of the Physical Planning Act,it covers the ideology of land
subdivision1.It also covers aspects which ought to be followed in subdividing private land,
public land or even community land.Sections 41 to 45 covers all approved measures in regard
to land use2.In basic terms ,land is a form of real property and form of wealth.This act by
regulating the manner in which the land is to be allocated ideally proclaims the
core-dependency between the two.
Protection of property rights.
section 29 of the Act establishes local authorities and offices of various state officers3These
parties are purposely institutionalised to solve land disputes and control utilisation of the
land.Disputes being effectively solved grants people the pleasure of possession and
enjoyment of their property rights to the fullest.
Safeguarding intellectual work.
Section 47 of the Physical Planning Act accounts for the preservation of buildings of special
architectural values and historic interest4.In light of intellectual property, architectural work
being widely encroached in this perspective gives birth to the relationship.
Roles of administrators.
Section 5 establishes the key functions of the director of physical planning5. The roles being
advising the commissioner of lands and local authorities on the most appropriate use of land
including management, subdivision and also amalgamation of the land.
In the famous country case of Republic v. Director of physical planning civil application no
337 of 20166.
The facts being, on 12 July 2016, the director of physical planning informed the applicant by
a letter stopping him from progressing with the construction of a sixty six storey building
located at Riverside area Nairobi. Particulars being that the public raised concern following
noise pollution and traffic jam in the area,It was held that everyone was entitled to fair
administrative action and that the director of physical planning was not authorised to offer
sanction or prohibition orders but could only give advisory opinion.The applicant herein was
granted the fullest relieve and guaranteed to progress with the construction.
In a nutshell, the Physical Planning Act of 1996 remains a crucial statutory authority in
property law.It contains provisions which solve claims relating to land subdivision,
intellectual work, outlining the functioning of physical planning administrators and also
enforcement of property rights.
1
Sec 41 Physical Planning Act
2
Sec 41,42,43,44,45 Physical Planning Act
3
Sec 29 Physical Planning Act
4
Sec 47 Physical Planning Act
5
Sec 5 Physical Planning Act
6
R v. Director of Physical planning (2016) eKLR
2) LANDLORD AND TENANT(Shops,Hotels and Catering Establishment) ACT

This is an Act of parliament to make provisions with respect to certain premises for the
protection of tenants of such premises from eviction or from exploitation and for matters
connected therewith and incidental thereto.
This Act came into operation on the 1st of November 1965
Interpretation of terms.
a) Tenancy means a tenancy created by a lease or underlease,by an agreement for a lease or
underlease,by a tenancy agreement or by operation of law.
b) Controlled tenancy means a tenancy for a shop, hotel or catering establishment.
c) Landlord means the person for the time being entitled as between himself and the tenant to
the rents and profits of the premises payable under the terms of the tenancy.
d)Tenant means the person for the time being entitled to the tenancy whether or not he is in
occupation of the holding.
Highlight of sections of the Act.
Section 4 tells the procedures for termination of and alteration of terms and conditions of
tenancy7.
It provides that a landlord who wishes to terminate or alter the terms and conditions or rights
of service enjoyed by the tenant shall give a notice on that behalf to the tenant in prescribed
form.
On the other hand a tenant who wishes to obtain a reassessment of the rent of a controlled
tenancy or the alteration of any term or condition in any right enjoyed by him under such
tenancy shall give notice to the landlord in the prescribed form.
No tenancy notice shall take effect until such date not being less than 2 months after the
receipt thereof by the receiving party.
Section 7 defines the grounds on which a landlord may seek to terminate a tenancy.This is
based on the following circumstances;
1) Where the tenant has defaulted in paying rent for a period of two months after such rent
has become due.
2) Where the tenant has committed other substantial breaches of his obligations under the
tenancy.
3)Where the landlord has offered and is willing to provide or secure the provision of an
alternative accommodation for the tenant.
4)Where the landlord intends to demolish or reconstruct the premises in the tenancy8.
Section 9 explains the decisions made by tribunals and there effectiveness.
It provides that in the event a tribunal has made a determination upon reference,no further
tenancy notice shall be given in respect of the premises concerned9.
Section 14 explains about compensation for Misrepresentation in the event it is proved that
the order and concealment of material facts by either parties was induced by

7
Sec 4 Landlord and Tenant Act
8
Sec 7 Landlord and Tenant Act
9
Sec 9 Landlord and Tenant Act
misrepresentation,the tribunal may order the offending party to pay the other party a sum of
money as compensation for damage and loss suffered from the misrepresentation10.
Section 15 grants the right of any aggrieved party by the determination and order made by
tribunal to appeal to the high court11.
This should be done within 30 days after the date of such determination or order.

3)NATIONAL LAND POLICY ACT (2009)

The formulation of this act commenced in February 2004 , a draft was adopted in 2007 and
the 7th cabinet meeting approved the draft of this Act.
The aim of the formulation of this policy was to guide the country towards a sustainable and
equitable use of land in the country.This policy designated all land in Kenya as public ,
private and community land .It recognizes and protects customary rights in both public and
private land
PUBLIC LAND
The act defines it as land that is declared public by an act of parliament. The Act states that
for a government to secure tenure for public land it should:
✓Establish an appropriate system for registering public institutional land.
✓ The government should rationalise the holding and the use of public land.
✓ Public land should be kept under the National Lands Commission so as to hold and
manage trust in people.
✓The government should repeal the government land act (cap 280) ....This act confers
Powers upon the president of Kenya to grant title or other rights in government lands .
✓ The officer of public land is required to maintain and prepare the registration of
public land

PRIVATE LAND
This is land that is lawfully held , managed and used by an individual or any other statutory
tenure .To rationalise the existing systems of private land ownership the government shall :
✓ Ensure that all private land reverts to the state are managed by the National Land
Commission under chapter 5 article 67 (c) of the constitution which states that national land
commission should advise the national government on a comprehensive program for the
registration of title of land all over kenya12.
✓All private land is on terms that are clearly subordinate to the doctrine of compulsory
acquisition which means that a balance should be between private and public land interest
without arbitrarily intriguing on an individual or community rights of property.
✓ The government should ensure that all land management is cooperative and company
owned farms are regulated.
✓ The government shall harmonise existing modes of statutory tenure under the land
act.This is an act of parliament that gives effect on article 68 of the constitution , to revise , to

10
Sec 14 Landlord and Tenant Act
11
Sec 15 Landlord and Tenant Act
12
Art 67(c) Constitution 2010
consolidate and rationalise land laws ; to provide for the sustainable administration and
management of land and land based resources and for connected purpose13.
✓ The National Lands Commission should manage private land in case the owner dies
without heirs and absence of legally verificable claims on land like in the case of Karaini
investment vs National land Commission & 2 others .
✓ The government should ensure private rights to land take into account legitimate rights,
such rights are those of the children and spouse
✓The transfer of private land should be held alienable and without discrimination on the
sex , ethical background or geographical location.

4)THE CONSTITUTION OF KENYA 2010.

The new constitution is a major contributor to land law in Kenya.

The term land has been defined under article 260 of the constitution; land includes,
(a)The surface of the earth and the subsurface rock.
(b)Any body of water on or under the surface.
(c)Marine waters in the territorial sea and exclusive economic zone.
(d)Natural resources completely contained on or under the surface and,
(e)The airspace above the surface14.
The case of David Mwangi Ndegwa vs Kenya revenue authority (2018) eKLR 15 can be used
as a reference case where the court referred to Article 260 of the constitution in defining
lands.
From the above definitions, we can see that its subject matter induces the surface of the soil,
the things on the soil enjoyed as part of land such as the air, water growing trees, or
artificially fixed attachments such as houses, buildings and other structures.
It also encompasses parts of buildings with the division anticipated to be either vertical,
horizontal or otherwise and includes tenancies, leasements, rights, privileges or benefits in,
over or derived from land.
Article 40 basically dwells on property rights for instance sub article (1) subject to article 65,
states that every person has a right either individually or in association with others to acquire
and own property (in our case land).
of any description.
a)In any part of Kenya.
b)Further chapter 5 of the constitution that is land environment has dealt with,
i)Principles of land policy.
ii)Classification of land.
iii)Land by non-citizens.
iv)Regulations of land use and property16.

13
Art 68 Constitution 2010
14
Art 260 Constitution 2010
15
David Mwangi Ndegwa v. Kenya Revenue Authority (2016) eKLR
16
Art 40 Constitution 2010
1.The principles are provided for in Article 60(1) ;land in Kenya shall be held, used and
managed in a manner that is equitable, efficient, productive and sustainable and in accordance
with the following principles;
a)Equitable access to land.
b)Security of land rights.
c)Sustainable and productive management of land resources.
d)Transparent and cost effective administration of land.
e)Sound conservation and protection of ecologically sensitive areas.
f)Elimination of gender discrimination in law, customs and practices related to land and
properly in land and,
g)Encouragement of communities to settle land disputes through recognized land community
initiatives consistent with the constitution.
2.These principles shall be implemented through a national policy developed and reviewed
regularly by the national government and through legislation17.
Classification;
Article 61(1) provides that, all land in Kenya belongs to the people of Kenya collectively as a
nation, as communities and as individuals18.
Land in Kenya is classified as public under Article 6219, community under Article 6320 or
private under Article 6421.
Land by non-citizens;
Article 65(1) provides that, a person who is not a citizen may hold land on the basis of
leasehold tenure only, and such lease however, granted shall not exceed ninety years22.
Leasehold-a property held by a tenant in lease.
Lease- a contract between the owner of the property and tenant, giving the tenant sole use of
the property for an agreed time.
Regulation.
Article 66(1) states that the state may regulate the use of land, or any interest in or right over
any land, in the interest of defence, public safety, public order, public morality, public health
or land planning23.

5)ENVIRONMENT AND LAND COURT ACT (2011)

The Environment and Land Court Act was enacted on August 27th 2011 and gives effect to
Article 162(2)of the constitution which states that the parliament shall establish courts with
the status of the High Court to hear and determine disputes relating to the environment and
the use and occupation of and title to land24.The constitution under Article 162(3) provides
that Parliament shall determine the Jurisdiction and functions of the Environment and Land

17
Art 60 Constitution 2010
18
Art 61 Constitution 2010
19
Art 62 Constitution 2010
20
Art 63 Constitution 2010
21
Art 64 Constitution 2010
22
Art 65 Constitution 2010
23
Art 66 Constitution 2010
24
Art 162 (2) Constitution 2010
Court25.The court deals with land which is classified under the real property and also as an
immovable property since it lacks mobility.The act has five parts which includes:
(I) Preliminary -under the preliminary we have the short title,the interpretation and the
overriding objectives-the principal objective of this Act is to enable the court to facilitate the
just, expeditious proportionate and accessible resolution of disputes governed by this Act
(ii) Establishment and Constitution of the court- under this part we have the establishment of
the court, composition of the court,Presiding judge, qualifications of the judges of the court,
judges of the court,tenure of office of the judge of the court,the functions and the
qualifications for appointment of the registrar of the court and the review of the registrar's
decision.
(iii) Jurisdiction of the court- On Jurisdiction of the court part (iii) the act provides that the
court has original,appellate and supervisory jurisdiction and the court is also mandated to
issue a range of orders and reliefs which includes compensation, specific performance,award
of damages , declaration or costs and restitution.Article 162(2)(b) of the constitution provides
that the court shall have the power to hear and determine disputes:
(a) Relating to environmental planning and protection, climate issues,land use
planning,title, tenure, boundaries, rates,rents, valuations,mining, minerals and other natural
resources.
(b) Relating to compulsory acquisition of land.
(c) Relating to land administration and management.
(d) Relating to public , private and community land and contracts,choses in action or
other instruments granting any enforceable interests in land.
(e) any other dispute relating to environment and land26.
(iv) Proceedings of the court- under this part the act emphasises on the various principles that
should guide the court such as the principles of sustainable development,the principles of
land policy,the principles of Judicial authority ,the national values and principles of
governance and values and lastly the principles of public service, the procedure and powers
of the court, alternative dispute resolution, quorum of the court, representation before the
court, language of the court and rules to regulate the procedure and practice of the court.
(iv) Miscellaneous provisions -under this part we have the various provisions such as the
sitting of the court, regulations, offences, transitional provisions and repeal of the various
Acts such as the Land Tribunal Disputes Act (No.18 of 1990).

In the case of John Ngimor & 554 others v Northern Rangelands Trust & 3 others (2021)
eKLR in the Environment and Land Court at Kitale,the court had to deal with issues which
are established under the Environment and Land Court Act,these issues includes:
(a) Whether the court has Jurisdiction to hear and determine the petition?
(b) Whether the conservatory orders should be issued?
The court held that the court had jurisdiction to hear the matter as it was concerning land and
a conservatory order was issued27.
In conclusion the Environment and Land Court exercises Jurisdiction throughout Kenya.
25
Art 162 (3) Constitution 2010
26
Art 162 (2) Constitution 2010
27
John Ngimor & 554 others v. Northern Rangelands Trust & 3 Others (2021) eKLR
6)NATIONAL LAND COMMISSION ACT 2012
This Act was assented to on 2nd May 2012 to give effect to Article 67 & 68 of the
Constitution and:
1.To make further provisions as to the functions and powers of the National Lands
Commission, qualifications and procedures of the commission.
2.To give effect to the objects and principles of devolved government in land management
and administration and for connected purposes.
The National Lands Commission is a Constitutional Commission created under Article 67 of
the Constitution28 and its main area of concern is matters to do with public land management
which is under Real Property.
Objects and purpose.
Section 3 of the Act lists the objects and purposes of the Act, we will restrict ourselves with
those related to land which is the form of property under discussion here. They include, to
provide;
(a)For the management and administration of land in accordance with the principles of land
policy set out in Article 60 of the Constitution and The National Land Policy.
(b)Provide for a linkage between the Commission, County governments and other institutions
dealing with land and land related resources29.
Functions of the National Land Commission.
In addition to the functions of the Commission provided under Article 67(2) of the
Constitution, the Act further provides for the following functions under Section 5(2):
(a)On behalf of, and with the consent of the national and county governments, alienate public
land;
(b)Monitor the registration of all rights and interests in land;
(c)Ensure that public land under the management of designated state agencies is sustainably
managed for the intended purposes;
(b)May develop and maintain an effective land information system for the management of
public land30.
These functions clearly point out that the Commission is largely based on public land
management as every function touches on public land.
Section 6(c) of the Act empowers the commission take any measures it considers necessary to
ensure compliance with the principles of land policy set out in Article 60(1)of the
constitution31.
Review of Grants and Dispositions.
Section 14(1) of the Act mandates the National Lands Commission to review all grants and
dispositions of public land to establish their propriety or legality within five years of the

28
Art 67 Constitution 2010
29
Sec 3 National Land Commission Act
30
Sec 5(2) National Land Commission Act
31
Sec 6(c) National Land commission Act
commencement of the Act, own its own motion or upon a complainant by the national or
county government, a community or an individual32.
A grant in this context refers to the transfer of public land by deed or writing; especially an
appropriation or conveyance made by the government.
Disposition refers to the transfer or relinquishment of public land to the care of another
person.
Section 14(3) provides that in exercise of the powers under subsection(1),the Commission
shall give every person who appears to the Commission to have an interest in the grant, or
the disposition concerned , a notice of such review an opportunity to appear before it and to
inspect any relevant documents33.
This means that one should be accorded fair hearing by the Commission in exercise of its
powers under Section 14(1) of the Act in line with Article 50 of the Constitution.
Section 14(4) states that, after hearing the parties in accordance with subsection(1), the
commission shall make determination34.However,the provisions of this subsection have been
contested in court .
In the case of Mwangi Stephen Muriithi v National Land Commission & 3 others [2018]
eKLR where the Petitioner acquired the a parcel of land in 1999 at a price of Kshs.
1,880,440/-, having successfully applied to the President through the Commissioner of Lands
for an allotment.Later the National Land Commission made a determination that the land was
unlawfully acquired instead of issuing a recommendation under Article 67(2),the court held
that;"In any case, the provisions of Article 67 (2) of the Constitution cited above is clear and
overrides the provisions of section 14 (4) of the act which provides that “after hearing the
parties in accordance with subsection (3), the Commission shall make a determination.” The
Constitution is the Supreme Law of the Land as is indeed espoused under Article 2 (4)35.
Further Subsection (5) provides that;"Where the Commission finds that the title was acquired
in an unlawful manner, the Commission shall direct the Registrar to revoke the title."36
(6) Where the Commission finds that the title was irregularly acquired, the Commission shall
take appropriate steps to correct the irregularity and may also make consequential orders37.
The Commission therefore cannot revoke a title own its own but is mandated to direct the
registrar of Lands to do so.
ln the case of Meshack Moturi Siro v National Land Commission & 2 others [2021]eKLR
The office of the Chief Commissioner of Lands with the authority of the County Council of
Gusii allocated the suit property to the Petitioner herein.The Petitioner was issued with
aLetter of allotment and paid the Stand Premium and other incidental payments.Later, the
National Land Commission revoked the title and the Court quashed the revocation for being
null and void38.

32
Sec 14(1) National Land Commission Act
33
Sec 14(3) National Land Commission Act
34
Sec 14(4)National Land Commission Act
35
Mwangi Stephen Muriithi V. National Land Commission & 3 Others (2018) eKLR
36
Sec 14(5) National Land Commission Act
37
Sec 14(6) National Land Commission Act
38
Meshack Moturi Siro v. National Land Commission & 2 others (2021) eKLR
Section 15(1) of the Act also mandates the National Lands Commission to receive, admit and
investigate all historical land injustice complaints and recommend appropriate redress
pursuant yo Article 67(3) of the Constitution39.

7) LAND REGISTRATION ACT.

This act was enacted in 2012, to take effect on 2nd May 2012. The registration system,
format and style was greatly borrowed from the Registration of Lands Act which is now a
repealed act.
It is an act of Parliament to revise, consolidate and rationalise the registration of titles of land
to give effect to the principles and objects of devolved governments in land registration and
for connected purposes. It is a registration conveyancing statute dealing with matters of
registration and also substantive law concerning land transaction.
This makes provision for the registration of land and provides for this purpose;
a)Establishment of land registry for an administrative framework.
b)It defines the effects of registration of land.
c)Regulate the procedures of registration, survey, subdivision and partitioning of the land.
d)It helps to protect property and property rights.
e)It helps solve disputes relating to property.
It is related to property law since it majors in land related matters and in property law land is
under real property. Real property refers to land and any fixtures on it.Section 3 of the Land
registration Act provides;
a)Registration of interest in all public land as declared by article 62 of the constitution.
b)Registration of interest in all private land as declared by article 64 of the constitution.
c)Registration and recording of community interests in land.40
It also provides for one of the main components of right to property which is the right to
exclude others from using the property. Section 24 (a) of Land Registration Act, the
registration of a person as the proprietor of land shall vest in that person the absolute
ownership of land together with all the rights and privileges belonging or appurtenant
thereto41.
Further it provides for the principle of property which is having a title. Section 8(2), the
registrar should issue a certificate of title42.
Section 26 (1), certificate of title shall be issued upon registration to a purchase or
transmission by proprietorship shall be taken to all courts as prima facie evidence that the
person named as proprietor is the absolute and indefeasible owner43.
This helps enhance the right to exclude others from using the property without the owner's
permission.
In the Land Case 1 of 2020 , Lucy suing as a representative of Benson v. The chief land
registrar and 2 others (2020) eKLR, the plaintiff succeeded and the court held that the parcel

39
Sec 15(1) National Land Commission Act
40
Sec 3 Land Registration Act
41
Sec 24 (a) Land Registration Act
42
Sec 8(2) Land Registration Act
43
Sec 26(1) Land Registration Act
of land belonged to the deceased, Benson, and ordered for the cancellation of the titles held
by the two other defendants44. This clearly shows how the Land Registration Act helps to
solve disputes relating to property and its application to property law.
This act has repealed Acts such as Lands Titles Act, The Registration of Titles Act, The
Registration of Lands Act and the Government Lands Act. However, Section 105 of the Land
Registration Act, states that; " Title documents other than the Government Lands Act issued
under the repealed acts shall be deemed to be the title documents issued under the Land
Registration Act.45

8)LAND ACT (2012)

This act came into force on 2 May 2012.This Act makes provisions for a wide variety of
matters regarding public and private land and community land as defined by article 62,63 and
64 of the constitution and provides for acquisition of land and land based resources.It consists
of 163 sections divided into11 parts: i)Management of public land
ii)Administration of public land
iii)Community land
iv)Administration and management of private land
v)General provisions on leases
vi)General provisions on charges
vii)Compulsory acquisition of interest in. land
viii)Settlement programmes
ix)Easement and analogous rights
x)Miscellaneous
In this case The Land Act 2012 is in relation to property law in that land is a property under
real property which is a tangible property.
Article 62 of the constitution defines public land as :

62.(1)Public land is—

(a)land which at the effective date was unalienated government land as defined by an Act of
Parliament in force at the effective date;
(b)land lawfully held, used or occupied by any State organ, except any such land that is
occupied by the State organ as lessee under a private lease;
(c)land transferred to the State by way of sale, reversion or surrender;
(d)land in respect of which no individual or community ownership can be established by any
legal process;
(e)land in respect of which no heir can be identified by any legal process;
(f)all minerals and mineral oils as defined by law;

44
Lucy suing as a representative of Benson v. The chief land registrar & 2 others (2020) eKLR
45
Sec 105 Land Registration Act
(g)government forests other than forests to which Article 63(2)(d)(i) applies, government
game reserves, water catchment areas, national parks, government animal sanctuaries, and
specially protected areas;
(h)all roads and thoroughfares provided for by an Act of Parliament;
(i)all rivers, lakes and other water bodies as defined by an Act of Parliament;
(j)the territorial sea, the exclusive economic zone and the sea bed;
(k)the continental shelf;
(l)all land between the high and low water marks;
(m)any land not classified as private or community land under this Constitution; and
(n)any other land declared to be public land by an Act of Parliament—
(i) in force at the effective date; or
(ii) enacted after the effective date.

(2)Public land shall vest in and be held by a county government in trust for the people
resident in the county, and shall be administered on their behalf by the National Land
Commission, if it is classified under—

(a)clause (1)(a), (c), (d) or (e); and

(b)clause (1)(b), other than land held, used or occupied by a national State organ.

(3)Public land classified under clause (1)(f) to (m) shall vest in and be held by the national
government in trust for the people of Kenya and shall be administered on their behalf by the
National Land Commission.

(4)Public land shall not be disposed of or otherwise used except in terms of an Act of
Parliament specifying the nature and terms of that disposal or use46.
In this case the land act 2012 provides for a wide discussion on public land in section 8-36
part ii and iii of land act. Part ii is based on management of public land and part iii
administration of public land:Section 8 of land act 2012:Management of public land
8. In managing public and on behalf of the national and county
governments, the Commission
(a) shall identify public and, prepare and keep a database of all public land, which shall be
geo-referenced and authenticated by the statutory body responsible for survey;
(b)shall evaluate all parcels of public land based on land capability classification,land
resources mapping consideration,over all potential for use,and resource evaluation data for
land use planning; and
(c) shall share data with the public and relevant institutions in order to discharge their
respective functions and powers under this Act; or
(d) may require the land to be used for specified purposes and subject to such conditions
,covenants ,encumbrances or

46
Art 62 Constitution 2010
reservations as are specified in the relevant order or other instrument47.
Under administration we have section 20
PART III ADMINISTRATION OF PUBLIC LAND
Leases, Licences and Agreements for Public Land
Licence for temporary purposes.
20. (1) The Commission may grant a person a licence to use unalienated public land for a
period not exceeding five years subject to planning principles as it may prescribe.
(2) The Commission may serve a notice to quit upon the licensee at any time after the
expiration of nine months from the date of the licence.
(3) The fee payable under a licence under this section, the period and the agreements and
conditions of the licence, shall be prescribed by the Commission.
(4)Th licensee may,with the consent of the Commission,transfer the benefit of a licence under
this section, and the transfer and the consent thereto shall be endorsed on the licence48.
Under article 63 of constitution provides for community land:63
Community land(1)Community land shall vest in and be held by communities identified on
the basis of ethnicity, culture or similar community of interest.

(2)Community land consists of—

(a)land lawfully registered in the name of group representatives under the provisions of any
law;
(b)land lawfully transferred to a specific community by any process of law;
(c)any other land declared to be community land by an Act of Parliament; and
(d)land that is—
(i) lawfully held, managed or used by specific communities as community forests, grazing
areas or shrines;
(ii) ancestral lands and lands traditionally occupied by hunter-gatherer communities; or
(iii) lawfully held as trust land by the county governments,but not including any public land
held in trust by the county government under Article 62(2).
(3)Any unregistered community land shall be held in trust by county governments on behalf
of the communities for which it is held.
(4)Community land shall not be disposed of or otherwise used except in terms of legislation
specifying the nature and extent of the rights of members of each community individually and
collectively.
(5)Parliament shall enact legislation to give effect to this Article. In the case of community
land the land Act 2012 provides that Section37: Community land shall be managed in
accordance with the law relating to community land enacted pursuant to article 63 of the
constitution49.
Article 64 of the constitution provides for private land:
64 .Private land consists of —
(a)registered land held by any person under any freehold tenure;
47
Sec 8 Land Act
48
Sec 20 Land Act
49
Art 63 Constitution 2010
(b)land held by any person under leasehold tenure; and
(c)any other land declared private land under an Act of Parliament50.
Part v of the land act 2012 provides for administration and management of private land under
section 38-49
Under it we have :
Contracts over land article 38-42
Section 38:Regaining possession of land after concluding contract of sale of land.
38. (1) No suit shall be brought upon a contract for the disposition of an interest in land uness
(a) the contract upon which the suit is founded—
(i)is in writing;
( ii) is signed by al the parties thereto; and
(b) the signature of each party signing has been attested to by a
witness who was present when the contract was signed by such a party.
(2)Subsection(1) shall not apply to a contract made in the course of a public auction nor shall
anything in that subsection affect the creation or operation of a resulting, implied or a
constructive trust51.

TRANSFERS section 43-48

Section 43.(1)InthisPart,“transfer”includes conveyance,an assignment, a transfer of land, a
transfer of lease or other instrument
used in the disposition of an interest in land by way of transfer.
(2) A proprietor may transfer land, a lease or a charge to any person (including himself or
herself) with or without consideration, by
an instrument in the prescribed form.
(3) The transfer shall be completed by the registration of the transferee as proprietor of the
land, lease or charge
(4)The transferee of a charge may require the charger to execute the transfer for the purpose
of acknowledgng the amount due
under the charge at the date of execution of the transfer52.
TRANSMISSIONS section 49
49. If one of two or more joint proprietors of any land, lease or charge dies, the Registrar
shall, on proof of the death, delete the name
of the deceased from there gister by registration of the death certificate53.
In conclusion the Land Act 2012 provides for the administration and management of land that
is public land,private land and community land which are all property.

9)SECTIONAL PROPERTIES ACT No.21 OF 1987,Revised Ed 2012(1987)

Provided for the division of buildings into units to be owned by individual proprietors, and
common property to be owned by proprietors of the units as tenants in common ,and to

50
Art 64 Constitution 2010
51
Sec 38 Land Act
52
Sec 43 Land Act
53
Sec 49 Land Act
provide for the use and management of the units and common property ,and for the unexpired
residue of the term is not less than 45yrs.
Consider the case
MISC. CIVIL APPLICATION NO. 134B OF 2015
IN THE MATTER OF: AN APPLICATION BY SURAJ HOUSING & PROPERTIES
LIMITED, SURAJ PLAZA LIMITED AND SURAJ PLAZA MANAGEMENT LIMITED
FOR LEAVE TO APPLY FOR ORDERS OF CERTIORARI AND PROHIBITION
AND
IN THE MATTER OF: SECTION 12 of THE BUSINESS PREMISE RENT TRIBUNAL
AT, NAIROBI TRIBUNAL CASE NUMBER 55 OF 2015
AND
IN THE MATTER OF: SECTIONS 38 (1)(2) AND (3) OF THE SECTIONAL PROPERTIES
ACT NO 21 OF 1987
BETWEEN
REPUBLIC………….APPLICANT
VERSUS
THE CHAIRPERSON, THE BUSINESS PREMISES,RENT TRIBUNAL AT
NAIROBI.………RESPONDENT
ROSEMARY WANGARI CHEGE……..INTERESTED PARTY
EX PARTE:

1. SURAJ HOUSING & PROPERTIES LIMITED

2. SURAJ PLAZA LIMITED

3. SURAJ PLAZA MANAGEMENT LIMITED

Cases involved
Applicant accused the respondent relying on the case of;
Republic -vs- Business Premises Rent Tribunal and Another, and Exparte Davis Motors
Corporation Ltd [2013] eKLR. Further reliance was placed on Pritam vs. Ratilal and Another
Nairobi HCCC No. 1499 of 1970 [1972] EA 560.
Applicants relied on the case of;
Nyarangi JA in Owners of the Motor Vessel “Lillian S” vs. Caltex Oil Kenya Limited [1989]
KLR 1.
Decision of justice Chesoni, J (as he then was) in Re Hebtulla Properties Ltd. [1979] KLR 96;
[1976-80] 1 KLR 1195. Respondent’s Case
The respondent relied on the case of;
Re Bivac International SA (Bureau Veritas) (2005) 2 EA 43, Pastoli vs. Kabale District Local
Government Council and Others [2008] 2 EA 300, Republic vs. Kenya Revenue Authority
Ex parte Yaya Towers Limited [2008] eKLR, Seventh Day Adventist Church (East Africa)
Limited vs. Permanent Secretary, Ministry of Nairobi Metropolitan Development & another
[2014] eKLR, Republic vs. Kenya Revenue Authority & another Ex-Parte Bear Africa (K)
Limited, Republic v Commissioner of Customs Services ex-parte Africa K-Link
International Limited Nairobi HC Misc. JR No. 157 of 2012[2012] eKLR and Kenya Pipeline
Company Limited vs. Hyosung Ebara Company Limited & 2 Others (2012) e KLR.
Interested parties relied on the case of
– Meru Bar, Wines & Spirits Owners Self Help Group (Suing through its Secretary) Ibrahim
Mwika vs. County Government of Meru and John Kinyua Munyaka & 11 Others vs. County
Government of Kiambu and 3 Others Petition No. 3 of 2014

Determination
Justice Odunga on paragraphs(26)(27)(28) he said
26.The main issue for determination in these proceedings in my view is whether the Business
Premises Rent Tribunal has the jurisdiction to determine disputes other than those disputes
that arise in a landlord and tenant relationship and more so disputes arising from the
provisions of the Sectional Properties Act.
27. The jurisdiction of the Business Premises Rent Tribunal is provided for under section 12
28. It is clear that in exercising the powers conferred under the Landlord and Tenants, Shops,
Hotels, and Catering Establishments Act, the Respondent Tribunal must restrict itself to the
powers conferred under section 12 aforesaid. This, in my view, is the sense in which the
decision of Madan, J (as he then was) in Pritam vs. Ratilal and Another Nairobi HCCC No.
1499 of 1970 [1972] EA 560 ought to be understood. In the said case, the learned Judge
expressed himself as hereunder:
“As stated in the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act itself,
it is an Act of Parliament to make provision with respect to certain premises for the protection
of tenants of such premises from eviction or from exploitation and for matters connected
therewith and incidental thereto. The scheme of this special legislation is to provide extra and
special protection for tenants. A special class of tenants is created. Therefore the existence of
the relationship of landlord and tenant is a pre-requisite to the application of the Act and
where such relationship does not exist or it has come to or been brought to an end, the
provisions of the Act will not apply. The applicability of the Act is a condition precedent to
the exercise of jurisdiction by a tribunal; otherwise the tribunal will have no jurisdiction.
There must be a controlled tenancy as defined in section 2 to which the provisions of the Act
can be made to apply. Outside it, the tribunal has no jurisdiction.”
Order
41. Consequently, the court decline to grant the prayers sought in the said Motion on Notice
which It dismissed the case with costs.

It creates a system where you develop a sectional plan,which is able to support people to be
given different title deeds in relation to different parts of a building
Each owner of a unit has rights and duties as defined by this act
Mostly develop in blocks of flats; where different owners have rights and obligations to
certain parts if the building
Except to the extent that an interest endorsed on a sectional plan relates to a particular
unit,the owner of a unit shall only be liable in respect of an interest endorsed on a sectional
plan in proportion to the unit factor for this unit.
Consider the case of;
DAMARIS NDUTA GITAU.........PLAINTIFF
V
HARJI KARSAH KANJI.............. RESPONDENT
ISSUE
Whether the property can be brought under sectional properties act so that the plaintiff and
the defendant can have separate titles to their respective portions of the building?
If the property can be subdivided under the sectional properties act?
Rulling
The court ruled that having the parties failed to agree on a suitable management style,by
giving ownership individually to the units respectively the control of the property would be of
benefit to both of them.The court therefore ruled for addition of 45yrs lease only in order for
the sectional properties act to apply.The respondent was awarded the costs of the suit.

10)LAND CONTROL ACT

The property and land control Act are intertwined in such a way that, the land control board
Controls transaction of agricultural lands and in so doing protects the right of property in
relation to article 40 as well as article 60.
Article 40 protection of right to property
Subject to article 65 every person has right to individually or in association with others to
acquire any property of any description in any part of Kenya
Remedies for a voided agreement
In cases where controlled transaction has been voided by virtue of section 6 (1) the courts
have been categorical that only remedy statute provides a refund of consideration which is
recoverable as a debt not damages .
Section 7 of land control Act provides that if any money or other valuable consideration has
been in the course of controlled transaction that becomes void under this Act ,that money or
transaction shall be recoverable as a debt by the person who paid it54 .
Section 22 of LCA makes it an offence to pay or receive any money, or enter into or remain
in possession of any land voided as a of section 6 (1) of LCA55.
Case Law
Aliaza v Saula civil case 2020
Appellant had filed present appeal to challenge decision of environment and land
court.Whereby he was ordered to vacate a land measuring 1.3 acres registered in name of the
respondent within period of 3 months failure to which he will be evicted.Appellant paid
217,000 which was the purchase price.It was held that contract for the sale of property
between appellant and respondent was void due to lack of land control board consent as per
section 656.

CONCLUSION.
In conclusion,the above Acts are very important in matters of land adjudication in Kenya.
54
Sec 7 Land Control Act
55
Sec 22 Land Control Act
56
Aliaza v. Saula civil case 2020