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Property LAW Notes Revised
family law (Kenyatta University)
StuDocu is not sponsored or endorsed by any college or university
Property LAW Notes Revised
family law (Kenyatta University)
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CHAPTER ONE
1.0 GENESIS AND EVOLUTION OF THE LAW OF PROPERTY IN LAND 
Resource tenure systems do not exist in a vacuum but are linked to one another in a number of important
respects. Moorehead sees them as existing along a continuum from ‘open access’ regimes, where there
are no rules of entry to ‘controlled access’ systems, which in its most extreme form consists of private
property.1 The evolution of tenure systems has been as a result of certain forces whether internal or
external such as increase in population which resulted in increase in the pressure on natural resources and
subsequently land tenure systems evolved from open access regimes, through common property systems,
to private property institutions.2
Accordingly, at the beginning resources were there in plenty. Land was cleared only when it was needed
for production mainly as a result of population increase. Populations were low and hence labour was
scarce. Land boundaries were unnecessary as there was no need to allocate land among the various
owners nor was there need to exclude outsiders. Resources were then the subjects of ‘open access’
regimes.
As populations increased and colonial powers divided Africa amongst themselves, a relative scarcity of
resources arose. Resources became differentiated by quality and rural communities allocated better
resources to themselves and those in poor conditions to outsiders. The unit of production changed from
clan to the extended family. At this time land tenure took the characteristics of communal property.
--------------------------------------------------------------------------------------------------------------------- Upon
an increase in population; establishment of colonial and post-colonial states; and introduction of a
colonial economy, land became privatized as the community was further stratified into small family units
as the focal point in production. Land became a commodity, which could be owned and disposed of, and
a new class of landless people emerged. Privatization was the norm and the principle of co-ownership by
group or clan no longer operated.
In Kenya, this pattern of evolution can be clearly traced. According to Kenyatta, 3resources were
managed with the clan as the focal point before the coming of the colonialists. With the coming of the
British Administrators, former community property was nationalized under the 1902 and 1915 Crown
Lands Ordinances. The new laws destroyed all customary perceptions of tenure and rural communities
were even declared tenants at the will of the Crown.4 
Further damage was occasioned by the 1955 Swynnerton Plan and the 1956 Native Land Tenure Rules,
which introduced registration and privatization of land. In the post-colonial era, former common property
resources were nationalized in the pretext of conservation. Communities were excluded from lands with
which they had a long association for the creation of parks, reserves and forests. Quite often after the
demarcation of these areas, rural communities were required to cease accessing the resources therein and
look for alternative means of earning their livelihood. Legal and policy instruments have continued to
make it difficult, if not impossible, for communities to participate in the management of resources, which
are customarily theirs.
The Law of Property in land therefore, emerged not at the heels of the emergence of civil society. On the
contrary, the emergence of civil society was, according to one author, precipitated by the birth of the
concept of property ownership. He states that;
1
 See Moorehead, R.(1997) Structural Chaos: Community and State Management of Common Property in Mali. London, 11 Ed p22
2
 See Noronha, R.(1985) “A Review of the Literature on Land Tenure Systems In Sub-Saharan Africa”, in Agriculture and Rural
Development Department Discussion Paper No. 43. Washington DC, World Bank.
3
 Kenyatta, J.(1938). Facing Mount Kenya: The Traditional Life of the Gikuyu. Nairobi; Kenway publications. Chapter 11 
4
 See the judgment of Chief Justice Barth in Wainaina wa Githomo and Anor vs. Muritu wa Indangara and Anor 9 EALR 102 and
Stanley Kahahu vs. AG 18 KLR 5 
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“The first person having enclosed a piece of ground, bethought himself saying “This is
mine” and found a people simple enough to believe him, was the real founder of Civil
society”.5
In a nutshell, the theory of property in land and the rules of law defining the nature and manner of
transacting in property rights attempt to respond to the following questions;
i) What are the foundations of the law of property in land?
ii) What are the jurisprudential questions and concepts underlying the law of property in land?
iii) What are the rights and obligations arising therefrom?
iv) What is the manner of transferring or otherwise dealing/disposing of the said rights?
v) What is the relationship between the state and the individual in relation to (iv) (above) and in
relation to rights arising from property generally?
1.1 THE CONCEPT OF PROPERTY 
The concept of “OWNERSHIP” and the concept of property are inextricably
intertwined. According to one author; “… all property arises from ownership”6
To understand the concept of “ownership”, one must first be conversant with the idea of a “right”.
1.2 THE IDEA OF A RIGHT 
Central to all legal relationships is the idea of rights and duties that flow from them. In this regard, a
vehement author in the Science of jurisprudence has written;
“as soon as a legal system arrives at the stage of development when it can yield to
juristic analysis, it will be found that the concepts of rights and duties form a pivotal
point in the structure of the legal machinery by which the system is enabled to perform
its social functions.”7
The exact nature and content of particular species of rights, whether legal, moral, political or economical
etc and the identity of those in whom they vest, will naturally vary from one political economy to
another.8
Thus under capitalism, rights of whatever species are characteristically vested in individuals or nucleated
groups since these are the focus of production relations.9
It is thus to beexpected that in community-based societies, the nature of and extent of rights will differ.
Further, these will not essentially vest in the collective or corporate whole.
The foregoing notwithstanding, the ultimate question “what is a right?” is spiritedly agitating for a
response.
A right in a nutshell signifies an affirmative claim against another in respect of a given situation, object
or thing in which the right-holder has an interest.10
5
 See Jean Jacques Rousseau; Discourse on Inequality; Quoted in H.W.O. Okoth Ogendo; Teaching manuals on Property Law Vol.1
6
 OP cit
7
 See Lord Lloyd’s The Idea of the Law (1970) pp.309
8
 H.W.O. Okoth Ogendo; Op cit
9
 Ibid
10
 The conception of a “Right” as an “Affirmative Claim” is largely the definition of a Right in Hohfeldian terms.
2
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To Lloyd, the concept of a right is very important in legal systems since by virtue of the right, legal
obligations and duties are imposed.
The idea of a “right” essentially boils down therefore to a statement about the quantum or range of
activities that a given society will permit its members, individually or collectively, either serially or
concurrently, to execute. This is of course, with respect to certain prescribed situations, objects or
things.11
This view is in agreement with the view of rights being defined by rules of law operating in the society.
To assert the view that one has a claim (affirmative) over something, necessarily implies that one has
power to execute a certain act / function. Thus, the envisaged situation is that where the right-holder (X)
is seised of a right (Y), he can execute a particular thing (Z)
Rights are generally divisible. Thus if it turns out that X can exercise his power as a right-holder to do a
particular thing, (Z) then we can say that (Z) is “owned”. This brings us to the concept of ownership.
1.3 DEMYSTIFYING THE CONCEPT OF “OWNERSHIP” 
Much of the available literature dealing with property relations in the pre-colonial period has erroneously
characterized land tenure in Africa as being communal in its broadest formulation. According to two
authors, R.W. James and G.M. Fimbo, the propagators of this view are;
 “… Responsible for the supposition that African Land Tenure is much the same in every part of the
continent, i.e. it is communal and an individual only has security of tenure whilst he is using the land.” 12
Although the authors do not refute that communal ownership was prevalent they argue that there were
also other forms of ownership existing side by side with communal ownership.
Jomo Kenyatta when describing the Gikuyu system of land ownership also opposed this kind of
generalization. He says that;
“According to Gikuyu law of land tenure, every family unit had a land right of one form or another.
While the whole tribe defended collectively the boundary of their territory, every inch of land within it
had its owners.”13
He concludes that the term ‘communal ownership’ has been misused in describing the land as though
every member of the community owned the whole of it collectively.
Therefore, one ordinarily talks of OWNERSHIP the moment a right-holder’s claim and naturally, power
over a thing/object concedes with or amounts to exclusive control of that thing/object/situation.
1.4 THE MEANING OF PROPERTY. 
What can be owned?
That which is owned is that which is referred to as property. Accordingly, property may be defined as
jurisdiction coupled with exclusive control. The quantum of property over which X (the right-holder)
may have a right may be reduced to minimum levels. The power to control does not in itself denote
property rights. What is essential is that this jurisdiction MUST be coupled with exclusive control.
In this regard, Honore has written;
11
 Okoth Ogendo, (Supra)
12
 James, R.W. and Fimbo, G. M. (1973). Customary Land Law of Tanzania: A Sourcebook. Der es Salaam;EALB p3
13
 Kenyatta, op cit
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“The greatest possible interest in a thing which a system of laws recognises………….”
Honore simply refers to that situation object or thing loosely as property.14
However, it is worth noting that such a coincidence is of course, not found in all societies or in respect of
all species of rights.
Further, property in the sense indicated above is, however, much too wide a concept for the purposes of
an incisive study of the law of property in land.
To Salmond15 the term property assumes various postures in meaning, for instance, it subsumes-:
a) All Legal rights; “… a man’s property is all that which is his in Law”16
b) Proprietary rather than personal rights (dominium v/s status)
c) Proprietary rights in rem rather than in personam (dominium v/s obligatio)
NOTE: as Paton points out, this dichotomy can lead to much confusion17
d) Corporeal rather than incorporeal property (Dominium Corporis v/s Dominium Juris)18
In this sense, property exists only in things real and tangible.
It ought to be further noted that Salmond’s fourth category, though too narrow for everyday legal
parlance, is closest to what is of primary interest to students of the law of property in land. Further, it is
also worth noting that the foregoing terminology i.e. Dominium/Corporeal and incorporeal, is peculiarly
English and is not ventilated/recognized by Kenyan Law which talks of MOVABLES and
IMMOVABLES.19
Both the I.T.P.A and the Interpretation and General Provisions Act 20define IMMOVABLE property to
include;
“………….any estate, right, interest or easement in or over any land… and includes a
debt secured by mortgage or charge on immovable property.”
How does property arise? How is it created?
English law takes the view that all forms of property in land are created by the state and the latter by
virtue of political sovereignty in the territory.
14
 See Honore in Guest Ed; Oxford Essays in Jurisprudence, at P.108; Quoted in H.W.O. Okoth Ogendo, Supra.
15
 SaLmond’s Jurisprudence (12 ed) at P. 411
16
 As per Blackstone & Hobbes.
17
 See Paton’s Jurisprudence, 3rd Ed at P. 262 (These terms have caused confusion to readers who cant resist the temptation to translate
them literally as a right to a thing and a right against a person…… In Roman Law, there was a clear cut distinction between dominium,
title which availed against the world; and obligatio, which bound only the parties to the agreement.)
18
 In Corporeal, the property owned is a physical object while in Incorporeal, the property owned is a mere right.i.e while corporeal
applies to the land itself, incorporeal applies to rights in the land
19
 See for instance, section 3 of the Interpretation and General Provisions Act, Cap. 2; see also section 2 of the Indian Transfer of
Property Act (1887)
20
 Ibid
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The state is thus said to have the ultimate/radical title and accordingly, the nature of any property that an
individual can own is therefore the creation of the state. This view has been assimilated by Kenyan Law.
1.5 THE LAW OF PROPERTY IN LAND; PECULIAR TERMINOLOGY JURIDICALLY 
DEFINED
The Law of property in land frequently employs various terms that are singularly peculiar to it. For an in
depth and incisive understanding of this complex subject, a student is expected to be conversant with this
frequently used terminology.
a) Under the Common Law of England 
Unlike the Roman Law – which recognized a simple indivisible property (i.e. DOMINIUM and
IMPERIUM) and for a variety of historical reasons, English Common Law conceivedof property as a
BUNDLE OF RIGHTS conferring powers on the holders and implying obligations and liabilities upon
others.
i) OWNERSHIP (Under English Common Law) 
It merely refers to a higher category of appropriation rights which themselves ultimately flow from a
political superior or sovereign. (Dominium directum vs. Dominium utile)
In other words, “Ownership” under English Common Law is merely a form of possession or seisin.
b) Under the Indigenous Law 
Many scholars, especially those trained in Anglo-American jurisprudence, assume, (fallaciously of
course), that the vocabulary summarised above is of universal application and can therefore be used to
describe and analyse indigenous African property systems and relations.21
In this regard, Marx Cluckman writes;
“…the very refinement of English jurisprudence makes it a better instrument for
analysis than are the languages of tribal law…”22
This assumption has led not only to much distortion in the study of African Law of Property in land, but
also to the saturation of the corpus of that law with alien ideas, concepts, cultural trails and ideologies. 23
In analyzing indigenous property systems and relations therefore, a different vocabulary must be
employed. This must be contextual and descriptive and must fully take account of the social and cultural
complexities of our predominantly agrarian societies.24
A set of vocabulary which has been found useful, is one which distinguishes between access to a
situation, thing, or object and which is –
i) an incident of membership of society
ii) specific to a function
iii) tied to the performance of reciprocal obligations owed to others and control of the same and
which is;
21
 Okoth Ogendo, Supra
22
 See Marx Cluckman, “Ideas” at P.75 Chap.3; Quoted in Okoth Ogendo, Ibid
23
 See Okoth Ogendo’s paper; Property Theory and Land use Analysis “Discussion paper No. 209, (1974) Journal of E.A R & D. Vol.
5 (1975)
24
 See H.W.O. Okoth Ogendo; Approaches to Rural Transformation in East Africa.
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a) An incidence of sovereignty and is therefore vested in the political authority, society or sections
of it.
b) Is solely for the purpose of guaranteeing the access of rights of society members and therefore; 
c) Entails a power of distribution and redistribution as society adjusts to population pressure and
constant claims on scarce resources.25
Thus, as neither ACCESS nor CONTROL amount to ownership in the sense explained above, the concept
of property in indigenous land law cannot refer to that which is exclusively controlled, rather, it refers to
the system of values which a community attaches to the use of those resources that are central to its
productive forces, the conduct of that use being determined by the principles of ACCESS determined by
the collective whole.
It follows thus that in indigenous conception, property law refers to that body of rules which defines,
regulates and enforces the said principles.26 This view is in accord with the views of one author who has
observed;
“If we fail to recognize that Land use is a function of property rights in land, our
cognisance of the truth is deficient by a whole dimension of reality.”27
The same prolific author has also truthfully noted;
“Property rights in land or rights analogous to them are in the last analysis, the only
power by which men can execute positive plans for the use of land and natural
resources.”28
CHAPTER TWO
2.0 THE FOUNDATIONS OF THE LAW OF PROPERTY IN LAND – IN KENYA 
The Law of property in land is pre-occupied with the nature and the content of the rules that confer rights
of property over or access to land itself whether they flow from statutory or non-statutory arrangements.
Accordingly, the purpose of this chapter is to concretely establish the foundation of this crucial branch of
the law in Kenya.
2.1 THE COLONIAL FACTOR IN THE EVOLUTION OF KENYAN LAW OF 
PROPERTY IN LAND
It would be impossible to understand contemporary land law without first appreciating the origin, nature
and concerns of colonialism in Kenya.
25
 For a further analysis, see Okoth-Ogendo; teaching manuals on property law; Vol. 1
26
 Okoth-Ogendo, Ibid
27
 Ibid
28
 Ibid
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By altering indigenous production systems and institutions, colonialism paved the way for the penetration
of alien norms and institutions and their subsequent entrenchment in contemporary political economic
life.29
2.2 COLONISATION; ORIGINS THEREOF 
To Mungeam, colonial occupation of East Africa was a function of international diplomacy. 30 His
emphasis was the strategic significance of the opening of the Suez Canal in 1869, and as a function
thereof, of the Nile and Uganda.
Mungeam further explained the failure of I.B.E.A (Imperial British East Africa Co. Ltd) in terms of the
supposed economic barrenness of East Africa. He also assigned the subsequent growth of settler
economy to administrative imperativeness such as the cost of the railway and defence expenditure arising
from punitive raids against the Somali.
Okoth-Ogendo, a vehement scholar, correctly observes that Mungean’s thesis obscures the nature of
imperialism in general and the economic concerns of colonialism – particularly in East Africa. 31
At the initial stages during the onset of the subjection of East Africa to foreign rule, the colonial
government needed to;
i) obtain formal jurisdiction
ii) discover agents of/for economic development of the colony.
i) Assumption of Jurisdiction 
This was achieved politically by the declaration of protectorate status over Kenya in 1895.
However, because of an opinion given by the law officers of the British Crown in 1833 in respect of the
IONIAN Islands, the protectorate status did not confer radical title to the land in Kenya/E.A generally.
As a consequence thereof, land rights/rights in land could only be acquired vide;
- Conquest
- Agreement
- Treaty
- Sale
Some of these methods were only possible within the 10-mile strip at the Coast, which was then under the
jurisdiction of the Zanzibar Sultanate.
In addition, the Administration Agreement between the Imperial British East Africa Company (IBEACo.)
and the British Government had (in 1895) transferred to the latter control over all rights in land ceded to
the former by virtue of a concession agreement, which the sultan had signed in 1898.
The colonial government inevitably suffered numerous disabilities arising as a consequence of
protectorate status. These led to a major revision in imperial jurisprudence. For instance;
i) The Indian Lands Acquisition Act of 1894 was extended in 1896 to the sultan’s dominions under
section 8 of the 1884 Zanzibar Order in Council. This was done with a view to enable the
colonial government to acquire land for public purposes.
ii) The same was later extended beyond the sultan’s dominions in 1897 even though there was no
juridical basis for the second extension.
29
 Okoth – Ogendo; Supra (Teaching manual on a property law, Vol.1)
30
 See Mungeam’s “British Rule in Kenya”
31
 Ibid
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iii) Ultimately, the law officers of the crown explained in 1899 that their 1833 opinion applied only
to protectorates “with a settled form of government”. In the case of the East Africa protectorate,
the law officers argued that the Foreign Jurisdiction’s Act of 1890gave the Crown the power of
acquisition and disposition over “waste and unoccupied land”.
This revision was duly incorporated in the East Africa (Lands) Order in Council of 1901 and
subsequently, the Crown Lands Ordinance (1902).
The main object of the C.L.O. (Crown Lands Ordinance) of 1902 (subsequently re-enacted in 1915) was
to facilitate the alienation of Crown Lands. These had been defined the year before its enactment as
follows: -
“….all public land subject to the control of his majesty.”32
ii) Acquisition of Land for Private Use 
To attract private developers, it was necessary to guarantee ownership of land particularly beyond the 10-
mile Coastal strip. This was for a long time juridically impossible.
A set of regulations modeled after the IBEA’S 1894 Land Regulations were promulgated in 1897 under
the Zanzibar Order-in-Council for the “peace order and good governance in Kenya”.
The regulations, which were produced, gave power to sell freeholds within the sultan’s dominions only.
Elsewhere only certificates of occupancy were available. Initially, these were for 21 years and later for
99 years. The settlers, as can be expected, were not satisfied with this state of affairs. They (some) took
to resorting to unorthodox means of acquiring land i.e. by purchasing it from the local people. 33
However, the revised 1899 opinion together with subsequent legislative developments solved the
problems of acquisition since the 1902 Crown Land Ordinance gave the commissioner power to sell
freeholds in the protectorate.
For instance, under the 1897 Land Regulations, the commissioner had power to grant to any person a
certificate authorizing him to occupy and hold the portion of land described therein for a period not
exceeding 99 years.
This was the case during the early stages. By the 1915 Crown Lands Ordinance, the commissioner for
lands had power to grant 999 years leases in respect of agricultural land. This was done at nominal rents
to settlers.
Similarly, the commissioner had power to lease land within townships for 99 years again at nominal
rents. Further, the ordinance also empowered the commissioner to convert 999 years leases into
freeholds.34
2.3 THE BASIS OF OUR CURRENT LAW OF PROPERTY IN LAND 
The Judicature Act, (Cap 8 of the Laws of Kenya), section 3 thereof, valiantly lists the sources of law in
Kenya.
These sources may, in a nutshell, be listed as follows:
32
 As per the East Africa (Lands) order-in-council.
33
 This was despite the fact that the Natives had no title to the lands they occupied, only rights of occupation. See the judgment of the
court in Mulwa Awanobi Vs Alidina Visram (1913) KLR 14
34
 For a better grasp of the instruments and mechanisms employed by the colonial government to secure acquisition of land for private
use, one should see the following instruments; 1) The 1897 Land Regulations 2) The (1899) General Principles of Land Settlement
(opinion of the Law officers of the Crown, (1899 Dec) 3) The East Africa (Lands) Order-in-council (1901) 4) The Crown Lands
Ordinance of 1902 especially articles 1, 2, 3, 4, 5 – 15 and lastly 5) the 1915 Crown Lands Ordinance.
8
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i) The constitution of Kenya
ii) Legislation which includes;
a) Acts of the Kenyan Parliament
b) Specific Acts of the Parliament of the United Kingdom cited in the schedule to the Judicature
Act and the Law of Contract Act.35
c) One Act of the parliament of India
d) English statues of General Application in force in England as at 12th August 1897
iii) Subsidiary legislation
iv) The substance of English common law, the Doctrines of Equity and Statutes of General
Application in force in England on the 12th August 1897. “These are to apply in so far as the
circumstances render necessary.
v) African customary law in civil cases in which one or more of the parties are subject to it or
affected by it, so far as it is applicable and is not repugnant to justice and morality or
inconsistent with any written law.
From this checklist, it may correctly be observed that in Kenya, legal rules pertaining to the law of
property in land may be sourced from;
a) The constitution of Kenya; particularly section 75 of the Bill of Rights, which enshrines the right to
property.
b) Legislation: It is worth noting that our parliament has enacted numerous statues pertaining to or
touching on the law of property in land.
c) English common law and the doctrines of equity (qualified accordingly).
d) Subsidiary legislation i.e. that made under Cap 265 (Local Government Act) or even under Cap 266
(the Valuation for Rating Act).
e) Customary Law (to an extent)
However, the primary source of the Law of property in land (in Kenya) is legislation, the substance of
English common law and naturally, the doctrines of equity.
A further source, though not loudly acknowledged, is of course judge made law.
2.4 LEGISLATION AS A SOURCE OF KENYAN LAW OF PROPERTY IN LAND A BRIEF 
OVER-VIEW
a) The Land Titles Act 36 
The year 1908 saw to the passing of the Land Titles Act (L.T.A.) by the colonial legislature. This was
done principally to facilitate the alienation of crown land at the coast.
The precise background to the enactment of the L.T.A. lies in the fact that the Sultan of Zanzibar owned
the 10 miles coastal strip (formerly the protectorate of Kenya) but subject to the rights of the inhabitants
who comprised mainly of Arabs settlers –whose settlement commenced long before the Europeans came
35
 Cap 23 of the Laws of Kenya
36
 Cap 282 of the Laws of Kenya
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to Kenya. This strip was leased by the Sultan of Zanzibar to the Colonial Government subject to the said
rights.
To enable alienation of crown land on this strip, it was necessary to distinguish between private land and
crown land.
Successful claimants were issued with Certificates of Ownership giving freehold title or certificates of
Mortgage or Interest covering leaseholds depending upon the nature of title adjudicated. 37
The term “Recorder of Titles” was borrowed from Tasmania (Australia) and the procedure of adjudicating
private claims to land was copied from an Act in Ceylon.
Any plot, which was not successfully claimed, vested in the colonial Government and upon
independence, in the Kenya Government.
b) The Registration of Titles Act (R.T.A) 38 
This Act was introduced in 1920, whereupon all new successfully claimed plots were registered under it.
Principally, this Act was enacted with the object of improving the issuance of titles to land as well as
transactions in the same. Largely, this was for the benefit of settlers/whites.
The Act, apart from introducing a form of title registration based on the Australian Torrens system of title
registration, also introduced conveyancing by statutory form.39
Lastly, it ought to be noted that the R.T.A. was modelled on the Registration of Title Enactment of the
Federal Republic of Malaya and the Transfer of Land Act, 1890 of Victoria. It relates to all land granted
by the Government or the subject of the Certificates of Ownership/Mortgage/Interest issued by the
Recorder of Titles under the L.T.A. Further, it also applies to all leaseholds, which have been converted
from terms of 99 years to 999 years since 1920, or to freeholds and titles converted on a voluntary basis
from the G.L.A.40 or L.T.A. registration to R.T.A. tiles.
c) The Government Lands Act 41 
It is a replacement of the Crown Lands Ordinance (1915). It was enacted to make further and better
provisions for regulating the leasing and other disposal of Governmentland and other purposes including
transactions relating to Government land.
It abolished the compulsory registration required under the R.D.A42 of transactions relating to unalienated
government land.
Basically, the G.L.A. governs all freehold or leasehold land granted by the Government prior to 1920,
with the exception of leaseholds converted to 999 years or to freeholds under the R.T.A.
The L.T.A. and the previous statutes were basically registration statutes/Acts. At the time of their
enactment, there was no general substantive law or system of conveyancing. In the Coastal area, dealings
in land were effected mainly in accordance with Muslim Law and for the rest of the country according to
the customary practices of the various tribes. Naturally, these personal laws could not be applicable to
the circumstances of the European settlers. Accordingly, the Indian Transfer of Property Act (1882)
(I.T.P.A.) was applied in Kenya as a substantive law.43
37
 It should be noted that the Titles issued under this Act, (the L.T.A.) manifested recognition of existing rights and are not grants from
the colonial government.
38
 Cap 281 of the Laws of Kenya
39
 See section 33 of the Act
40
 The Government Lands Act, Cap 280 of the Laws of Kenya
41
 Ibid
42
 The Registration of Documents Act. Cap 285 of the Laws of Kenya
43
 Vide Art 11(b) of the E.A. Order-in-Council (of 1897)
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Upto date, the I.T.P.A. is still the main substantive law governing transactions in property rights or (rights
of property in land) concluded under the L.T.A., G.L.A. and R.T.A. It is neither a registration nor a
conveyancing statute.
d) The Registered Land Act 44 
Background; The Law of Native Reserves
In the Native Reserves (special areas) which later became known as Trust Land under the Native Lands
Trust Ordinance, (1930) and subsequent Acts related thereto, customary land law applied. This ordinance
was enacted after the Africans had demanded the return of their land and expressed their insecurity with
regard to the land they then occupied. This statute was interpreted by colonial courts as giving
Africans/natives occupying the reserves, land rights or perpetual possession, subject to the power of the
Governor to expropriate land for public purposes.
It was also said that this right (of perpetual possession) prevailed as against the crown or any other person
not belonging to the affected tribe. This was enumerated in;
Stanley Kahahu vs. the AG 45 
Where the question for determination was whether natives have any rights and if so, what rights in land
in Native Reserves.
Held;
It was held that members of a native tribe for whom land has been reserved by the government under
section 2(1) of the natives land trust ordinance have a right of perpetual occupation subject to the power
of the Governor to grant land on lease or license under section 8. This right prevails as against the crown
and any person not belonging to the particular tribe.
In Isaka Wainaina wa Gathomo and Anor. Vs. Murito wa indangara and Anor, 46 
Sir Jacob Birth C.J, decided that the effect of the Crown Lands Ordinance 1915, the Kenya Annexation
Order in Council 1920 and the Kenya Order in Council 1921 was inter alia to vest land reserved for the
use of the native tribe in the Crown and in consequence all native rights in such reserved land whatever
they were under the githaka system disappeared and natives in occupation of such Crown land became
tenants at the will of the Crown.
This judgment appears to have overruled the decision of Maxwell J. in
Kimani wa Kabato vs.Kioi wa Nagi 47 , which was to the effect that a member of the Kikuyu tribe can
acquire and retain tracts of land within the reserve: and that such rights can be enforced by a suit for
damages for trespass and/or for an injunction.
Sir Jacob Birth’s Judgment was followed by Stephens J. in
Douglas Mwangi wa Kamotho and 2 others vs. Chief Mwichuki and the AG 48 
This also related to rights of natives in the Kikuyu Native Reserve. Stephens J. held with what he
describes as a certain degree of hesitancy that natives had no rights of occupancy in land in the native
reserve but that probably they had a limited right to occupancy as against other members of the tribe so
long as the tribe was allowed by the Crown to remain on the land.
44
 Cap. 300 of the Laws of Kenya
45
 (1938) 18 KLR 5
46
 9 EALR 102
47
 8 EALR 129
48
 Civil Case No. 113 of 1925
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In 1934, Gold was discovered in Kakamega and the natives settled thereabouts evicted forthwith to give
way for/to prospectors.49 This showed how tenuous the rights of Africans/Natives in land were. Spirited
agitation by the natives for return of their lands gained momentum. Settlers came to realise that provided
the natives were insecure in their own land, the security of the white highlands as a European settlement
would always be doubtful.
As a consequence, the Kenya Land Commission was set up to advise the government on land policy. 50
This commission completed its report in 1934 and concluded that African had little claim to the
Highlands (if any) and further, if there were any claims at all, compensation ought to be paid rather than
giving the land to the claimants and even further, that upon such payment, all customary rights should be
extinguished forever.
It recommended that the settlers’ security of ownership of the white highlands be guaranteed vide an
order-in-council. This was done in 1939 vide the Kenya (Highlands) Order-Council. As a corollary, the
Kenya (Native Areas) order-in-council was also enacted in the same year. It set up a newly constituted
Native Trust Board.51 This Board was to hold trust land for the natives. The same order-in-council
redefined Crown Land by amending the definition of “land” in the G.L.A. (1915).52
In 1938, the Native Lands Trust Ordinance was enacted (on the recommendation of the Cater
Commission). The rules made thereunder, i.e. the Native Land Tenure Rules (1956) provided details of
the legal regime for the administration of African Reserves. Under the said rules, communal/familial
ownership (as opposed to individual ownership) was recognised – the latter form of ownership being
stranger to customary law.
It is worth nothing that the Carter Commission report and its subsequent legislative implementation
confirmed the gradual process of creating two distinct reserve systems i.e. one for Africans and the other
for Europeans and accordingly, a dual system of land law. (i.e. English and Customary law).
The reserve systems remained until independence when in 1963, the constitution repealed the various
Orders-in-Council and vested Trust Lands in the County Council within whose jurisdiction the land was
situate for the benefit of persons within those areas.
English Law and customary law applied (and most likely still apply) to what was formerly known as
Scheduled Areas and the African Reserve or special areas respectively.
These two systems of land law will continue to be at par until they are merged and all land in Kenya
brought under the R.L.A.
The Need to Recognize Individual Ownership (Of Trust Land)
Before the enactment of the R.L.A., attempts had been made towards recognizing the claims of Africans
under the customary law, and accordingly, towards the adjudication of such claims and their registration.
For instance, in pursuit of such goals, the native Lands Registration Ordinance was passed in 1959. This
was followed by the Land Registration (special areas) Act on the recommendation of a working party
established in 1957 toenquire into the possibility of enacting a law or laws for the individualisation of
titles in connection with native lands.
49
 Under the Native Lands Trust ordinance, the Governor could not set land apart for Mineral Development without consulting the
Local Native Council. It was also provided that the affected natives would be given alternative land. Upon the discovery of Gold in
Kakamega in 1932, the requirements of consultation and provision of alternative land were repealed by the Native Trust Land
(Amendment) Ordinance. The Repeal thus enabled the Government to evict the African and to settle Gold prospectors in the Area.
50
 Otherwise known as the Cater Commission
51
 Formerly there was the Crown Trust Board
52
 Government Lands Act (Cap 280 of the Laws of Kenya)
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The L.R. (SA) Act was modelled on the Sudan Settlement and Registration Ordinance of (1952) and the
Registration Ordinance (1954) of Tanganyika. It provided for a system of land consolidation,
adjudication, registration and conveyancing.
THE R.L.A.(Cap 300)
The R.L.A. was introduced in 1963. It repealed all the provisions of the LR (SA) Act save the
consolidation and adjudication provisions. Subsequently, the LR (SA) Act was renamed the Land
consolidation Act.53 In the same year, a new Land Adjudication Act (cap 284) was enacted providing for
a system of adjudication of titles to trust land areas were consolidation was not appropriate.
Salient Features of the R.L.A.
Like the RTA, the RLA was/is based on the Australian Torrens system. It was modelled on over eight
different statutes including the Land Registration Ordinance of Tanganyika (1954), the Singapore Land
Titles Ordinance (1956) and the LR (SA) Act 1959 of Kenya.
It is a self-contained code in that it has its own registration, substantive and conveyancing law. 54 All
other statutes cease to apply upon land once it is brought within the ambit of the Act vide registration. 55
Where the Act is silent on any point/matter/issue, recourse must be had to English Common Law. 56
One of the objectives of the Act (RLA) when it was enacted was to bring all land in Kenya under its
ambit through the process of Conversion and Registration. Conversion is the process of bringing titles
that are already registered under other statutes under the RLA. Registration on the other hand, is
concerned with bringing plots of land originally held under customary law where such claims have been
adjudicated and/or consolidated, under a civil recording system.
Pursuant to section 2(c) of the Act, the Minister may apply the Act to any area in Kenya. 
53
 Cap 282; upon the recommendation of the Commission on Land Consolidation and Registration (1965)
54
 But see S.163 of the Act (Cap 300)
55
 See S.164 of the Act for instance
56
 Pursuant to S.163 thereof
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CHAPTER THREE
3.0 LAND AS PROPERTY AND THE LEGAL CONCEPT OF LAND 
3.1 LAND AS PROPERTY
Land cannot be owned only rights over it can be asserted as a claim for property in land.
The quantum or bundle of rights that one may hold in land is variable, from person to person and
naturally, from jurisdiction to jurisdiction.
Under Roman Law for instance, the concern was property (in land) thus, no distinction was particularly
attached to ownership.
The English Law explanation of property however, is a historic one. Property was deemed “real” if the
court would restore to a dispossessed owner the thing itself, the “res”, and not merely give compensation
for the loss. Thus, if X forcibly evicted Y from his freehold land, Y could bring a “real” action by which
he could obtain an order from the court that X should return the land to him.57
For curious reasons, English Law divides property into three classes viz;
i) Realty58 i.e. Hereditaments such as freeholds and mortgages.
 
ii) Chattels Real59 i.e. leaseholds
iii) Pure personalty – simply movable property
Kenyan Law does not assimilate the position in England fully. Instead, it employs the concept of
MOVABLE and IMMOVABLE property.60
The terms MOVABLE and IMMOVABLE property are essentially the equivalent of the English concepts
of CHATTLES REAL and PURE PERSONALTY.
It ought to be noted that the ownership of land (as property) is different from ownership of other
properties i.e. MOVABLES.
Principally, this distinction is due to the unique properties/characteristics of land and its value as a natural
resource. Land, unlike other properties can neither be created nor destroyed by the apparent owner.
Thus, ownership of land must as a natural corollary, be subject to Government control.
Kenyan Law lays emphasis on individual ownership of land as contradistinguished with communal
ownership. However, this does not mean that the position of the state as the beneficiary of the RADICAL
TITLE to land is watered down.
The true position is that though land can be granted to an individual with freehold or absolute
proprietorship, this amounts to a little more than that the title-holder does not pay rent annually to the
government for the land and that there are no express conditions for its development in the Grant (as in a
leasehold) This position notwithstanding, the fact remains that the CORPUS still belongs to the state.
Accordingly, the RADICAL title to all land in Kenya is vested in the President as the embodiment of the
state.
The foregoing explains the curious conception of land as property. Although, it is capable of being
annexed/alienated and made the subject of proprietorship, nevertheless, the proprietor’s user is subject to
57
 Megarry and Wade, The Law of Real Property 6th ed
58
 Can be specifically recovered. Maximum duration is not fixed since one cant tell when someone or his descendants will die
59
 Maximum duration fixed in time e.g. 99 years. Leaseholds are not real property and are classified under personalty property which
cannot be specifically recovered but can be compensated. 
60
 See Section 3 of the Interpretation and General Provisions Act, (Cap 2)
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various qualifications. For instance, numerous statutes in Kenya limit the powers of a proprietor over his
land i.e. freedom of disposition. These aspects of land as property are discussed ahead in detail.
3.2 THE LEGAL CONCEPT OF LAND 
The legalistic conception of land is rather curious. For instance, in Kenya, we do have numerous
statutory definitions of land. However, it ought to be noted that each statute attempts to define land for
its own limited purposes. Accordingly, there is no universal legal definition of land in Kenya.
3.2.1. THE LEGALISTIC DEFINITION OF LAND 
i) Under the R.L.A. (Cap 300) 
Section 3 thereof defines land as;
“Land includes land covered with water, all things growing on land and buildings and
other things permanently affixed to land.”
ii) Under the R.T.A. (Cap 281) 
Land [is defined to] include land, benefits [derived] therefrom, things embedded or rooted or attached to
those embodied thereon for the permanent beneficial enjoyment of that which is so attached to land or
anything so attached, any estate, interest therein, together with paths, passages, ways, water,
watercourses, liberties, privileges, easements, plantations and gardens thereon or thereunder unless its
specifically excluded.61
iii) Under Land Consolidation Act (Cap 283) 
Land is defined to include land covered with water, any estate or interest other than a charge,growing
things, permanent fixtures and buildings.62
iv) Under the Trusts of Land Act(Cap 290) 
Land is defined to include land of any tenure including water and minerals whether or not held apart from
the surface. It also includes buildings, rents, easements, any estate or interest, in land, any privilege,
and/or benefit derived from land.
v) Under the Land Acquisition Act (Cap 295) 
Land includes all land whether covered with water or not. It also includes things attached to the land or
permanently fastened and any estate, term, easement, right or interest in or arising out of land.
vi) Under the Land Planning Act (Cap 303) 
Section 3 thereof defines land to include land covered with water buildings and other things attached to
land and any interest or right or easement in, on or over land.
vii) Under the Limitation of Actions Act (Cap 22) 
Section 2 thereof defines land to include immovable property or proceeds from the sale of immovable
property but not an easement or a debt secured on immovable property by a mortgage.
It is thus quite explicit that each act defines land specifically to meet its purposes. Further, the phrase
“includes” is employed perennially in all acts so as to ensure that the definition is all embracing/all
inclusive.
61
 See section 2
62
 See section 4
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The following Acts also make valiant attempts to define land;
i) Valuation for Rating Act63
 “…includes any improvements thereon, therein or thereunder.”
ii) Land Titles Act64
iii) Registration of Documents Act65
3.2.2. THE CUJUS MAXIM 
From the foregoing provisions, it is quite clear that the law accords to land a specified meaning. Thus
land embraces not only the physical surface of the earth, but also buildings, growing trees, grass, water
etc.
In this connection, the rule is that:-
“Whose is the soil, his is also that which is up to sky and down to the depths of the
earth”
This rule was borrowed by the English from the Romans whose original version read as follows;
“Cujus est solum ejus est usque coelum et ad inferos”
Its essential elements may be set out as follows:
Solum – soil
Coelum – atmosphere
Inferos – geosphere
It is thus clear that the general effect of this rule is to horizontally divide land into three entities. Clearly,
it is cruxed on the assumption that land is and ought to be tangible and capable of separation. This
phenomenon (tangibility) was imported into Kenya as part of English Common Law vide the Reception
clause set out in section 3 of the judicature Act 66and before the enactment of the said, Act, vide the East
African (Lands) Order-in-Council (1897)67
However, it must be noted that this maxim assimilates too wide a definition of land. Accordingly, it had
to and was indeed, qualified/narrowed.
3.2.3 THE TRUNCATION OF THE CUJUS MAXIM 
The initial ambit/scope of this maxim was understood to mean that whoever owned the soil owned the
land both vertically and up to the centre of the earth. It was in a nutshell, a culture without sophistication
and accordingly flawed.
3.2.4 FIXTURES 
In attempting to define the solum, the English developed the maxim;
“Quicquid plantatur solo, solo cedit”
Translated it read;
63
 Cap 266
64
 Cap 282 (Land is defined under immovable property)
65
 Cap 285(Land is also defined under immovable property)
66
 Cap 8 of the Laws of Kenya, section 3 thereof
67
 Art 11 thereof
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“Whatever is attached to the soil or annexed thereto becomes part of the soil”
Pursuant to this maxim, fixtures were deemed to be part of the land. Under English Law, a fixture was
defined as;
“An object attached to realty for the permanent enjoyment thereof.”
Such a fixture had to satisfy certain conditions pertaining to:-
i) the nature of the fixture
ii) the degree of annexation to the soil (permanence)
iii) The object/purpose of annexation.
This maxim brought a lot of grief to mortgagees and tenants. This was due to the fact that the
mortgagor/landlord, who owned the solum, was entitled to any fixtures the mortgagees/tenants affixed
onto his soil since they immediately became part of his (land) soil and could not be removed without his
consent.
In order to remove this harsh effect (flowing from the cujus maxim) the English commenced scaling
down the meaning of land for a more acceptable definition of property in land.
The first move was to create exceptions to the doctrine of fixtures.
THE EXCEPTIONS
i) Where they were trade fixtures, they could be removed i.e. incase of affixed tools of trade.
ii) Where they were ornamental, they could similarly be removed
iii) Domestic fixtures and agricultural fixtures could similarly be removed.
In Regard of the Atmosphere
Under the unqualified Cujus maxim, any projections into the aerospace constituted trespass to land. In a
bid to solve this problem, the common law introduced the doctrine of REASONABLE USER.
Accordingly, the “ad inferos” became a rebuttable presumption.
In Regard of the Geosphere
Limitations in respect of this zone pertained to:
i) Mineral
ii) Water
Pursuant to the Cujus Maxim (unqualified), all water (underground and surface) and minerals belonged to
the owner of the solum
The first limitations were in respect of silver and gold. These were declared to belong to the Queen/King.
Then a distinction between water percolating into the ground and water flowing in defined channels but
below the surface was made. The latter was declared not to belong to the owner of the solum.
But it ought to be noted that if one sunk a well and appropriated water, then that part became the property
of the owner of the solum. This was held in the case of Bradford Corp. vs. Pickles 68 
68
 (1894) ALLER. 87
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The concept of land has thus become much more narrower. However, land can still be construed to refer
to the atmosphere, the solum and even the geosphere depending upon the circumstances.
3.2.5. JUDICIAL APPLICATION OF THE CUJUS MAXIM 
In the case of Wandsworth vs. United Tel. Co Ltd69, it was held that in English common law, land denotes
not the physical solum but everything above the surface, below and anything affixed thereon. Brett, M.R.
noted that where a piece of land is granted/conveyed in England, from the king or by a conveyance from
party to party under the word land, everything is passed which is below that portion of land down to the
centre of the earth and usque ad coelum.
In respect of limitations imposed on the maxim by English common law, the cases of Smith V City
Petroleum Co70 and Leigh V Taylor71 are quite illustrative. In the former, a tenant fixed petrol pumps and
tanks onto the grounds. Subsequently, the tenancy came to an end. The tenant failed to remove them.
The question was whether property in them had passed to the landlord. Since it had been conceded that
they were trade fixtures, it was held that they could be removed within a reasonable time span and that
property in them had not passed to the Landlord.
In the latter case, the question for determination was whether a chattel which had been affixed onto the
freehold with the intention that it ought to become part thereof and accordingly, could pass to the
beneficiary as land72 The court was categorical in stating that the intention of the parties (in regard of the
fixtures) in question was a question of fact in each case. Thus, tapestries affixedonto the wall of the
premises by the tenant were held not to be part of the freehold and could accordingly be removed
provided no damage was done to the wall in the process.
The general maxim of law as stated in Holland vs. Hodgson 73 is that,
What is annexed to the land becomes part of the land, but it is very difficult, if not impossible, to say
with precision what constitutes an annexation sufficient for this purpose. That question must depend on
the circumstances of each case, and mainly on two circumstances as indicating the intention, namely, the
degree of annexation and the object of the annexation. Perhaps the true rule is that articles not otherwise
attached to the land than by their own weight are not to be considered as part of the land, e.g. blocks of
stone placed one on top of another without any mortar or cement for the purpose of forming a wall. The
onus of showing that such articles are intended to be part of the land lies on those who assert that they
have ceased to be chattels. On the other hand, an article which is fixed to the land, even slightly, is to be
considered as part of the land unless the circumstances are such as to show that it was intended that it
should continue to be a chattel e.g. a carpet nailed to the floor of a room, the onus then lying on those
who contend that it is a chattel.
In Bradford Corp V Pickles74, it was held (in respect of water flowing in a channel) that a landowner’s
rights were only USUFRUCTUARY (rights of user only), not ownership and that they were limited by the
rights of others. Accordingly, a landowner does not enjoy property rights in the water flowing in defined
channels on his land – only usufructuary rights.
In Lemmon V Webb 75 it was held that overhanging branches constituted trespass to land. However, the
court, applying the doctrine of reasonable user probably, stated that such a state of affairs had to be
reasonably modified.
69
 (1884) 13 Q.B.D. 904
70
 [1940] 1 ALLER 260
71
 [1902] AC 157 at 162
72
 For a further exposition on this issue, see the decision of Blackburn J in Holland vs. Hodgson (1872) L.R. 7 C.R. (E.x.Ch) 328.
73
 ibid
74
 Supra
75
 [1895] AC 1
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In Kelsen vs. Imperial Tobacco Co.(of Great Britain and Ireland)Ltd 76 
The plaintiff, Joel Kelsen, who was the lessee of a tobacconist shop brought an action against the
defendants, Imperial Tobacco Co. Ltd claiming (i) damages for trespass, and (ii) an order that the
defendant should forthwith remove an advertisement sign, which had been erected by the defendants on
the flank wall of the premises adjoining the plaintiff’s premises in such manner that the sign projected
over the plaintiff’s premises, or, alternatively, an injunction restraining the defendants from allowing or
permitting the sign to project over the plaintiff’s premises.
Held;
(i) The airspace above the shop was part of the premises demised to the plaintiff, since on the
true construction of the lease there was nothing to displace the prima facie conclusion that
the demise of the premises included the airspace above the shop.
(ii) The invasion of the plaintiff’s airspace by the sign amounted to a trespass on the part of the
defendants, and on the facts of the case, although the injury to the plaintiff’s legal rights was
small, he was entitled to a mandatory injunction requiring the defendants to remove the
sign.
Related Issues
Devisee(s) and Personal Representatives: If land is given by will, all fixtures pass under the devise to the
beneficiary. Accordingly, the testators personal representatives are not entitled to remove them for the
benefit of the testator’s estate, whether they be ornamental, trade or any kind of fixtures.
Vendor and Purchaser: All fixtures attached to the land at the time of the contract of sale must be left for
the purchaser unless otherwise agreed. Fixtures will be passed to the purchaser unless there is an
agreement to the contrary. However, the conveyance will not pass structures or erections, which are not
fixtures.
Mortgagor and Mortgagee: If land is mortgaged, all fixtures on it are included in the mortgage without
being specifically mentioned. The mortgagor is not entitled to remove fixtures he has attached after the
date of the mortgage.
3.2.5 THE KENYAN EXPERIENCE 
As already noted, the phenomenon of tangibility has been received into the country. Initially, the
reception was vide the East African Order-In-Council in 1897.77 It declared the substance of English
Common Law and Doctrines of equity to be a source of law in Kenya. This formulation has been
substantively retained vide section 3 of the judicature Act.78
Section 3 of the R.L.A.79 defines land in terms similar to article 11 of the East Africa (Lands) Order-In-
Council. In addition, section 163 thereof states that any gaps in the Act should be filled vide recourse to
English Common Law and the doctrines of Equity. The I.T.P.A. is a codification of common law rules as
they were in 1872 in India. In defining land, we start with the Cujus maxim/doctrine. BUT we do not
stop there. We do have statutory provisions on the doctrine of solum, fixtures etc. 80
3.2.6. STATUTORY LIMITATIONS ON THE CUJUS MAXIM 
76
 [1957] 2 QB 334
77
 See Art 11 thereof
78
 Cap 8
79
 Cap 300
80
 See section 108 I.T.P.A. in particular section 108(b) (h); A lessee though entitled to remove any fixtures during the subsistence of
the lease, he is required to leave the property the way he found it. See also sections 41 and 71 of the RLA, section 41 allows a lessee
to remove within 3 months of the leases expiry, any fixtures. Similarly, section 71 allows licencees to remove any fixtures.
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There are numerous exceptions to the rule enshrined in the cujus doctrine. For instance, section 4 of the
Mining Act81vests minerals in the Government. The Mineral Oil Act 82 vests mineral oil, including gas,
bitumen, etc in the Government. The Water Act83 categorically provides in section 3;
“The water of every body of 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 recognized as being vested in any other person”.
This Act also makes a distinction between a body of water and any other water. A body of water is
defined to include both surface and underground water. Thus, there is no distinction between percolating
water and surface water except water in a spring situated wholly within the boundaries of land owned by
one landlord and which does not naturally discharge into a watercourse extending beyond the said
boundaries or abutting on the same.
For purposes of the ad inferos doctrine, ground water and surface water belong to the state except in
regard of springs.84
With respect to the coelum, the Civil Aviation Act85 gives the Minister power to specify the height of any
structure within the limits of a gazzetted aerodrome. Thus, the definition of usable space is limited by
factors set out in section 9 of the Act.
Under the Kenya Posts and Telecommunications Act86 section 16 thereof, the said Parastatal is
empowered to enter somebody’s land to set up telephone posts/lines.
Under the Electrical Supply Lines Act87the Kenya Power and Lighting Co. is empowered to enter
someone’s land to set up lines. Similarly, the Way Leaves Act 88 empowers the state to have the right of
direction in laying electric lines, underground, cables, flyovers, etc.
Finally and pursuant to the Sectional PropertiesAct,89 the coelum may be separated from the solum.
The common law position has been so extensively limited that land is defined to mean the solum only.
Similarly, in customary law, the solum is the only tenable conception of land as property.
JUDICIAL APPLICATION
Unfortunately, Kenyan Courts, principally due to absence of litigation have not had an opportunity to lay
down the law on the extent of the application of the cujus maxim in Kenya.
However, our courts have had an opportunity to render decisions pertaining to the allied doctrine -
“quicquid plantatur solo, solo cedit”. It ought to be noted that the applicability of this maxim is doubtful
in Kenya.
For instance in Shaw V Shah Devshi & Co. 90 where a number of sisal machines were bolted on to
concrete beds in a factory on a sisal plantation which was made of corrugated iron sheeting, it was held
that movable property does not become part of the land by reason of only annexation or fixation. For it
to become part of the land, it must be shown that it is affixed onto the land for the permanent and
81
 Cap 306
82
 Cap 307
83
 Cap 372
84
 See the Decision of the Court in Ole Njogo V AG (1913 – 14) 5 E.A.L.R. 70, where Lake Naivasha was ruled to be a spring
enclosed within Lord Delamere’s land and accordingly, owned by him.
85
 Cap 394
86
 Cap 411
87
 Cap 315
88
 Cap 292
89
 Act No. 21 of 1987
90
 (1936-1937) 17 KLR (Pts I-II) 20
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beneficial enjoyment of the land. Notably, the court further explained that the said maxim had no
application in Kenya as the country has its own statutory provisions dealing with the question of fixtures 91
Similarly, in Dharamshi Virji & Another V Abdulrehman & Another,92 a wood and iron building
containing two portions had been standing upon a plinth into which timber was embedded for ten years.
It was held that the building was not part of the land because of its impermanent nature, Vis;
The definition of land in the Registration of titles Ordinance of Immovable property in the Transfer of
Property Act and the Interpretation and General Clauses Ordinance reveal a prerequisite of
“permanency”. The building in question was not of such a permanent nature as to be considered as
either part of the land or immovable property.
Further, in Emmanuel Tadiro V Oseni Ibitoye 93 it was held that if a person erects a building on another’s
land, without his knowledge or permission, the building attaches onto the land and the owner of the land
is under no obligation to compensate the builder. The court stated that the principle of quicquid plantatur
solo, solo cedit applied to defeat the claim for compensation for cost of erecting the building.
However, the position in Kenya on the application of the doctrine of quicquid plantatur solo, solo cedit is
not clear. For instance, it remains blurred whether the holdings in Shaw’s case and Dharamshi’s case
were cruxed on the doctrine94
However, it is quite clear that in both cases, the court combined the definitions of “attached to earth” in
the ITPA95 and “land” in the RTA96 and “immovable property” in the Interpretation and General
Provisions Act97to arrive at their decisions.
In view of the fact that the RLA98 unlike the ITPA makes no reference to fixtures as such but defines land
as including “other things permanently affixed to land”99 and as section 163 thereof applies the common
law on issues on which it is silent, it can only be argued that the maxim will apply and whatever is
affixed/annexed onto land will become part and parcel of it by reference to the degree of annexation and
the purpose of the annexation.
CHAPTER FOUR
4.0 CLASSIFICATION OF RIGHTS AND INTERESTS IN LAND 
The classification of rights and interests in land is necessary in order to fathom the tenure and quality of
the said interests and rights.
At common law, land rights were divided into three categories;
91
 See section 108,(b)(h) of the ITPA
92
 (1950) 24 K.L.R. (P 45) 24
93
 In the former case (Shaw’s) the court explicitly stated that the principle had no application in Kenya.
94
 See Section 3 thereof
95
 Of 1882
96
 Cap 281 see section 3
97
 Cap 2
98
 For a further exposition, see the decisions of the court in Jordan V May (1947) K.B. 427 and Sumons V Midford (1969) 2 ch. 415.
99
 Cap 300 see section 2
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i) Estates
ii) Servitudes
iii) Encumbrances100
4.1 ESTATES
These are interests projected on the plane of time so as to be able to be capable of quantification in terms
of duration. They are interests in land of some particular duration. An estate must be distinguished from
tenure, which is concerned with the quantity of estate. Tenure as it is, basically refers to a set of
conditions upon which an estate or interest in land may be held. Hence the relevant question is how
much and not for how long, the latter being applicable to the estate.
Therefore, an estate is the duration of a tenancy in land i.e. the maximum time before which the tenancy
must come to an end.
Illustration;
Instead of being asked “For how long did you grant the land to A?”
B could have been asked, “For what estate did you grant the land to A?”
Common law further divides estates into two; viz:
i) Freehold estate101
ii) Leasehold estate102
Freehold estates are further subdivided into;
i) Freeholds of inheritance
ii) Freeholds not of inheritance.
Freeholds of Inheritance
These are further classified into;
i) Fee simple estate
ii) Fee tail estate
Freeholds not of inheritance
Similarly, these are further classified;
i) Life estates
ii) Estate per autre vie
Principally, freeholds of inheritance are those rights in property, which can be passed from one generation
to another.
The Fee Simple
100
 These categories have been retained in the ITPA
101
 The duration of the estate though limited is uncertain. No one can say when the death will occur of a particular person and all his
future heirs nor is it certain that the duration will be perpetual.
102
 Maximum duration is fixed in time.
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This is the largest quantum of interest that a landowner can have at law. A conveyance of freehold
interest to any person without more passes a fee simple estate unless a contrary intention appears on the
conveyance.
Where a tenant in fee simple alienated the land, the fee simple would continue as long as there were heirs
of the new tenant.
It is virtually perpetual and terminates only if the tenant for the time being leaves no heir, when it
escheats to the state.
Qualifications;
1) If A, the owner of a fee simple estate in land dies, the land devolves to his heirs except where he
had transferred the land to somebody else (e.g. by gift or sale) during his life time.
2) If A, left the land by will to somebody other than his heir, then his heir is thereby precluded from
inheriting the land. Therefore, the land would only pass to A’s heirs if he dies intestate; or he
made a will but died intestate with respect to the land.
3) A’s heirs are to be found among his issues and ancestors. If there is none, then the
heir is to be sought among collaterals.
The Fee Tail
This gives a person only a life estate followed by successive interests of the issue of the body i.e. his
descendants.
Tail emanates from the Latin word TALIATUM i.e. to cut down. Accordingly, if there was/is no tail i.e.
no descendant, by operation of the doctrine of escheat, the property estate passes/ is passed to the state.
This estate continues for as long as the originaltenant or any of his lineal descendants survive. Thus if the
original tenant died leaving no relatives except a brother, a fee simple would continue but a fee tail would
come to an end. 
N/B
The words “simple” and “tail” distinguishes the classes of heirs who can inherit. A “fee simple” descends
to heirs general including collaterals. A “fee tail” descends to heirs special i.e. lineal descendants only.
Life Estates
These last for the life of the grantee only i.e. the measuring life is that of the tenant e.g. grant to A for
life.
Estates per autre vie
This is an estate, which subsists for the life of another and not that in whom the property rights are/were
vested. Thus if property is vested in A for the life of B, the estate will last for as long as B lives. But if B
dies before A, the property revests in B, the settler.103
Leasehold Interests (Estates)
They vary depending on duration/time.
i) Fixed term estate (interests) 
103
 Note however, that strict settlement are not possible under the Trusts of Land Act Cap290
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This is a lease for a fixed period e.g. 99 years.
It involves a continuing relationship between the parties to it and is normally subject to various
covenants/conditions/terms regulating the rights, duties and obligations of the parties.
Both the commencement and the maximum duration of the term must be certain or capable of being
rendered certain before the lease takes effect, as was enumerated in Prudential Assurance Co .Ltd vs.
London Residuary Body.104
Hence, the certainty rule distinguishes leases from a fee simple. It avoids the injustice that could arise
from the potentially perpetual continuation of a lease that the parties had implicitly intended to be of a
short duration.
ii) Periodic Tenancy 
Section 3 of the RLA105 defines a periodic tenancy as a tenancy from year to year, half year to half year
etc. The Periodic tenancies may also be created from year to year in respect of agricultural or
manufacturing tenancies; or month to month with regard to a tenancy for non-agricultural or non-
manufacturing purposes106
The essential feature of a periodic tenancy is the element of continuity. Whereas a fixed term lease
determines automatically upon the expiry of the term prescribed, a periodic tenancy does not come to an
end until proper steps have been taken to end it i.e. by giving the requisite notice of termination. 107
The term continues until determined as if both parties made a new agreement at the end of each period
for a new term for the ensuing period. The term however, may be extended if no notice is given.
iii) Tenancy at Will 
This is created by express agreement. As long as no period is fixed for the tenancy, the tenancy is one at
will. The lessor has the right to evict the tenant from the premises at any time.
A tenancy at will is determined expressly by either party at any time. The strict rules pertaining to notice
are not applicable i.e. any conduct on the part of the landlord, which amounts to a demand for possession
suffices.
Termination of such a tenancy can also be by implication i.e. as in where a landlord does any act which is
inconsistent with continuance of the tenancy or vice versa. Death of either party automatically
determines it.
iv) Tenancy at Sufferance 
A tenancy at sufferance is commonly to be the smallest estate known to the law. It exists where a tenancy
has terminated but the tenant “holds over” i.e. remains in possession without the landlord’s assent or
dissent. 
A tenant at sufferance differs from a trespasser in that his original entry was lawful and from a tenant at
will in that he stays on without the consent of the landlord. Such a tenant is in a position akin to a
squatter.
104
 [1992] 2 AC 386
105
 Supra 
106
 See also section 47 
107
 See also section 106 of the ITPA (1882. Where the RLA applies, the period of tenancy and the duration of the Notice required to
determine such a tenancy is the period by reference to which the rent is paid. Similarly, under the ITPA, periodic tenancies for
agricultural/manufacturing tenancies require a 6 months notice period for termination. With respect to any other tenancy, a 15 days
notice is required
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4.2 SERVITUDES 
These are rights in alieno solo.108 They exist essentially to facilitate the enjoyment of a person’s property
by another. The main classes are;
i) Easements
An easement is a right to do something or to prevent something. (Sec 3 RLA)
ii) Profits a prendre
This is a right to take something off another person’s land. 109 The thing taken must be either part
of the land e.g. minerals or crops, or the wild animals existing on it; and the thing taken must at
the time be susceptible to ownership.
iii) Restrictive covenants
A restrictive covenant is negative and made for the benefit of land belonging to the covenantee.
E.g. Where A, having two adjacent houses, sells one of them to B, and B covenants not to carry
on any trade or business in the house he has bought in order to preserve the residential value of
A’s other house.
4.3 ENCUMBRANCES 
These are also rights in alieno solo. They are burdens upon land otherwise owned by another.
However, it ought to be noted that the burden in question is more economic than proprietary. The
property is made responsible for the performance if certain specific functions. As long as they exist, they
affect or curtail the enjoyment of that property.
The main categories of encumbrances are;
i) Mortgages (either legal or equitable)
A conveyance of property subject to a right of redemption.
ii) Charges
These convey nothing but merely give the chargee certain rights over the property as security for
the loan.
4.4 THE KENYAN POSITION 
The foregoing classification of rights and interests in property has been imported /into or inherited by
Kenya, albeit with a few qualifications i.e.
i) The fee tail estate is not relevant to Kenya. Accordingly, we only have the fee simple estate.
The fee tail estate disappeared in 1942 when the colonial Government enacted the Trusts of
Land Act110. This enactment done was with one object – to abolish settlements.
108
 Rights in the soil of another
109
 See Duke of Sutherland vs. Heathcote [1892] 1 Ch 475 at 484 per Lindley LJ
110
 Cap 290
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A settlement was a devise used in England to tie up land within the family and accordingly, to
control property. After the life estate, there is a remainder, which reverts back to the donor i.e.
the fee simple. For continuity, the donor can transfer the property to another and another and
eventually to a tail, which however, will still have a reminder, which will revert to the donor.
This situation was abolished by the Trusts of Lands Act.111 This Act defined a settlement as an
attempt to create a settlement without exploiting the full estate i.e. the Fee Simple.
Under the Act, if a person attempts to do so, whatsoever is done will be converted into a trust for
sale. A settlement will be converted by Cap 290 into a trust. An equitable interest is an interest
that lies behind a trust since it is created from a settlement. A trustee can always dispose of the
settlement subject to the rules of the trust.
ii) The Kenyan position is further made unique by the advent of the Absolute Estate. This is purely
a creature of the R.L.A.112 Accordingly, the Absolute Estate under the RLA