Kariuki Ouma Ng'etich - Property Law Book - 2016

PROPERTY LAW Francis Kariuki Smith Ouma Raphael Ng’etich

PROPERTY LAW Copyright © Strathmore University Press ISBN 978-9966-054-18-0 Year of publication 2016 Cover design and layout by John Agutu Email: [emailprotected] Printed by Colourprint Ltd., P.O. Box 44466 – 00100 GPO Nairobi

To Alice Wanjiru, Michael Kamau, Asiyo Orero and Maria Chemutai

CONTENTS

Preface........................................................................................................... xiii Acknowledgements....................................................................................... xv List of Cases.................................................................................................. xvii List of Statutes and Official Documents....................................................... xxv Orders-in-Council......................................................................................... xxix Reports of Commissions of Inquiry.............................................................. xxxi International Treaties, Conventions and Declarations.................................. xxxiii Abbreviations................................................................................................ xxxv Introduction................................................................................................... xxxvii Chapter One: The Concept of Property......................................................... 1 1.0 Defining property..................................................................................... 1 1.1 Property and law...................................................................................... 2 1.1.1 Property as rights .......................................................................... 3 1.1.2 Property as a ‘bundle of sticks’..................................................... 5 (a) Right to exclude.................................................................. 7 (b) Right to transfer.................................................................. 9 (c) Right to possess and use..................................................... 10 1.1.3 Property as a web of relationships................................................. 10 1.1.4 Property as a basis of expectation ................................................ 13 1.2 Property as value..................................................................................... 13 1.3 Property must vest in some person (s)..................................................... 14 1.4 Property as possession............................................................................. 15 1.5 Seisin....................................................................................................... 17 1.6 Title ......................................................................................................... 18 1.7 Ownership ............................................................................................... 19 1.8 Attributes of property.............................................................................. 20 1.9 Property, contracts and torts.................................................................... 21

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Chapter Two: The Origin and Justification of Property Rights.................. 23 2.0 Introduction ............................................................................................ 23 2.1 First occupancy or first possession theory............................................... 26 2.2 Natural rights theory to property............................................................. 29 2.3 The labour theory..................................................................................... 33 2.4 The legal theory....................................................................................... 36 2.5 The social utility theory........................................................................... 37 2.6 Personhood theory of property................................................................ 38 2.7 Utilitarianism-traditional theory ............................................................. 39 2.8 Economic theory of property................................................................... 41 2.9 Libertarian theory of property................................................................. 44 2.10 Socialist and communist theories on property......................................... 45 Chapter Three: An African View of Property............................................... 47 3.0 Introduction............................................................................................. 47 3.1 Property as a commons ........................................................................... 49 3.2 Property as being more than the res........................................................ 52 3.3 Property as a transgenerational asset....................................................... 52 3.4 Property and spirituality in African societies.......................................... 54 3.5 Human rights, communitarianism and the African concept of property . 59 3.6 Property and dispute resolution in traditional African societies.............. 65 3.7 Debunking the fallacies of western property conceptions....................... 69 Chapter Four: Role of Property..................................................................... 75 4.0 Introduction............................................................................................. 75 4.1 The economic function of property......................................................... 76 4.2 Property and human flourishing ............................................................. 79 4.3 Property and personality.......................................................................... 81 4.4 Property and power.................................................................................. 84 4.5 Property and politics................................................................................ 86 4.6 Social function of property ..................................................................... 89 4.7 Property as status symbol........................................................................ 91 4.8 Property and spirituality.......................................................................... 94 4.9 Property and culture................................................................................. 95 4.10 Conclusion............................................................................................... 97

CONTENTS

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Chapter Five: Forms of Property................................................................... 99 5.0 Introduction ............................................................................................ 99 5.1 Legal and economic property ................................................................. 99 5.2 Public and private property...................................................................... 101 5.3 Personal and fungible property................................................................ 101 5.3.1 Persons and their bodies................................................................ 102 5.4 Real and personal property...................................................................... 104 5.5 Tangible and intangible property............................................................. 105 5.6 Goodwill ................................................................................................. 106 5.7 Electromagnetic spectrum....................................................................... 108 5.8 Intellectual property rights (IPRs) and real property............................... 112 5.8.1 Patents........................................................................................... 113 5.8.2 Copyright ...................................................................................... 114 5.8.3 Geographical indications............................................................... 115 5.8.4 Databases ...................................................................................... 115 5.8.5 Utility models................................................................................ 117 5.7.6 Trade marks .................................................................................. 117 5.8.7 Industrial designs .......................................................................... 120 5.8.8 Technovation ................................................................................ 121 5.8.9 Plant breeders’ rights..................................................................... 122 5.8.10 Farmers’ rights.............................................................................. 122 5.8.11 Traditional knowledge as a form of IPRs..................................... 124 5.9 Cultural property...................................................................................... 128 5.10 Common heritage property...................................................................... 129 5.11 Conclusion .............................................................................................. 130 Chapter Six: Regulation of Property Rights................................................. 131 6.0 Introduction............................................................................................. 131 6.1 Rationale for regulating property rights.................................................. 132 6.2 Eminent domain or compulsory acquisition power of the State.............. 134 6.3 Development control or police powers.................................................... 139 6.4 Public trust doctrine................................................................................. 142 6.5 Regulation of the commons..................................................................... 143 6.5.1 Property rights and the tragedy of the commons phenomenon..... 147 6.6 Property rules, liability rules and inalienability rules.............................. 148 6.7 Conclusion............................................................................................... 151

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Chapter Seven: Land as Property.................................................................. 153 7.0 Introduction............................................................................................. 153 7.1 The concept of property in land............................................................... 154 7.2 Importance of land................................................................................... 158 7.3 Land as a human rights issue................................................................... 160 7.4 History of land holding in Kenya: Pre-colonial, colonial and post-colonial antecedents.................................................... 162 (a) Pre-colonial period........................................................................ 162 (b) Colonial period.............................................................................. 162 (c) Post-colonial antecedents.............................................................. 168 7.5 The land question..................................................................................... 170 a) Dispossessions .............................................................................. 173 b) Disparities in landholding............................................................. 175 c) Overemphasis on land as a form of property ............................... 176 d) Illegal acquisitions ........................................................................ 178 e) Multiplicity of land laws and breakdown of land institutions....... 179 f) Environmental degradation .......................................................... 180 g) Poor land use planning.................................................................. 182 h) Marginalised groups and their land rights..................................... 183 i) Women................................................................................ 183 ii) Marginalised communities ................................................. 186 7.6 Conclusion............................................................................................... 189 Chapter Eight: Land Tenure........................................................................... 191 8.0 Introduction............................................................................................. 191 8.1 Conceptualising tenure............................................................................ 192 8.2 Land tenure: answering the tripartite question........................................ 195 (a) What interest?..................................................................... 195 (b) Interest holder-who?........................................................... 196 (c) What land?.......................................................................... 199 8.3 Land tenure in Kenya ............................................................................. 200 8.3.1 Communal tenure.......................................................................... 202 (a) Communal holding under the Land (Group Representative) Act................................................ 207 (b) Communal holding under the Trust Land Act..................... 208 8.3.2 Public land..................................................................................... 210 8.3.3 Private Land.................................................................................. 215

CONTENTS

Chapter Nine: Property Rights in Land........................................................ 223 9.0 Introduction ............................................................................................ 223 9.1 Property rights in land in feudal England................................................ 225 (a) Feudal tenures............................................................................... 226 (i) Services .............................................................................. 226 (ii) Incidents ............................................................................. 227 9.2 Estates in land.......................................................................................... 228 9.2.1 Freehold estates............................................................................. 229 (a) Fee simple........................................................................... 230 (b) Fee tail................................................................................. 231 (c) Life estate............................................................................ 231 9.2.2 Non-freehold or leasehold estates................................................. 232 a) Estate for years.................................................................... 233 b) Periodic tenancy.................................................................. 233 c) Short-term leases................................................................. 234 d) Future leases........................................................................ 234 e) Tenancy at will.................................................................... 235 f) Tenancy at sufferance ......................................................... 235 9.2.3 Covenants implied in leases.......................................................... 235 9.3 Charges.................................................................................................... 238 9.4 Derivative or analogous rights................................................................. 238 (a) Easements........................................................................... 239 (b) Profit à prendre.................................................................... 241 (c) Licenses .............................................................................. 241 9.5 Adverse possession.................................................................................. 242 a) Open and notorious use of the property.............................. 244 b) Continuous use of the property........................................... 244 c) Exclusive use of the property.............................................. 246 d) Actual possession of the property....................................... 247 e) Non-permissive, hostile or adverse use of the property...... 247 9.5.1 Policy rationales for adverse possession........................................ 248 9.6 Condominiums and other common interest communities....................... 251 9.6.1 Types of common interest communities......................................... 252 9.7 Co-ownership........................................................................................... 254 i) Joint tenancy............................................................... 254 ii) Tenancy in common.................................................... 256 iii) Tenancy in entirety...................................................... 256

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Chapter Ten: Matrimonial Property Rights.................................................. 259 10.0 Introduction ............................................................................................ 259 10.1 Matrimonial property rights systems....................................................... 260 (a) Community of property system.......................................... 261 (b) Separate property systems................................................... 262 10.2 Development of matrimonial property rights law in Kenya.................... 263 10.3 Reforms on the law of matrimonial property............................................. 271 10.3.1 The National Land Policy, 2009................................................... 272 10.3.2 Constitution of Kenya, 2010......................................................... 273 10.3.2 Matrimonial Property Act 2013.................................................... 274 10.3.3 Is the Matrimonial Property Act 2013 constitutional? ................. 279 10.4 Protection of matrimonial property under the land laws......................... 282 10.4.1 Land Act, 2012............................................................................. 282 10.4.2 Land Registration Act, 2012......................................................... 283 10.5 International law...................................................................................... 284 10.6 Emerging issues....................................................................................... 285 Chapter Eleven: Management of Land in Kenya ........................................ 289 11.0 Introduction ............................................................................................ 289 11.1 Public land management.......................................................................... 290 (a) Allocation of public land.................................................... 291 11.1.1 Management of other areas considered as public land................. 294 (a) Forests................................................................................. 295 (b) Wetlands.............................................................................. 297 (c) Minerals and mineral oils.................................................... 299 11.1.2 Challenges in management of public land.................................... 299 11.2 Private land.............................................................................................. 300 11.2.1 Compulsory acquisition of private land ....................................... 301 11.2.2 Contracts over land....................................................................... 304 11.2.3 Transfers ...................................................................................... 306 11.2.4 Transmissions............................................................................... 307 11.2.5 Charges......................................................................................... 309 (a) Informal and customary charges......................................... 309 (b) Formal charges ................................................................... 310 (c) Covenants by a chargor in a charge.................................... 312 (d) Rights of the chargor........................................................... 313 (i) Right to discharge a charge......................................... 313 (ii) Variation of interest rates............................................ 313

CONTENTS

(iii) Special acknowledgement by chargor........................ 314 (iv) Right to transfer a charge............................................ 315 (v) Equity of redemption.................................................. 316 (vi) Remedies of a chargee ............................................... 316 11.2.6 Leases........................................................................................... 326 11.2.7 Minimum and maximum holding of private land......................... 327 11.3 Community land......................................................................................... 331 11.3.1 Management of community land under the Act........................... 332 11.4 Conclusion................................................................................................. 335 Chapter Twelve: Land Administration and Delivery of Services................ 337 12.0 Introduction ............................................................................................ 337 12.1 Institutional frameworks for land administration ................................... 338 (a) The National Land Commission................................................... 339 (b) County Land Management Boards................................................ 346 (c) Environment and Land Court........................................................ 347 (d) The Ministry of Lands and Physical Planning.............................. 349 12.2 Land administration and delivery functions............................................ 351 12.2.1 Administrative functions............................................................... 352 (a) Registration......................................................................... 352 (b) Transfers.............................................................................. 358 12.2.2 Adjudicative functions.................................................................. 360 (a) Rectification of the register and indemnity......................... 360 (b) Restraints on disposition..................................................... 363 (c) Opportunity to be heard...................................................... 365 (d) Review of decisions by the registrar................................... 366 12.2.3 Cadastral functions....................................................................... 366 12.2.4 Contemporary themes in land administration .............................. 368 (a) Land information management........................................... 368 (b) Institutional overlaps .......................................................... 370 (c) Jurisdictional challenges facing the Environment and Land Court................................................................... 375 Chapter Thirteen: Land Use and Land Use Planning.................................. 379 13.0 Introduction............................................................................................. 379 13.1 What is land use? .................................................................................... 380 13.1.1 Principles of land use in Kenya.................................................... 380 (a) Sustainability....................................................................... 381 (b) Productivity......................................................................... 382

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(c) Efficiency............................................................................ 382 (d) Equitable access to land...................................................... 383 13.2 Land use planning ................................................................................... 384 13.2.1 Overview of different land uses.................................................... 385 (a) Forestry............................................................................... 385 (b) Agriculture ......................................................................... 389 (c) Mining................................................................................. 390 (d) Urbanisation ....................................................................... 392 13.2.2 Land use planning principles........................................................ 393 (a) Sustainability....................................................................... 394 (b) Participation ....................................................................... 396 (c) Accountability and proper enforcement.............................. 397 13.3 Legal and policy frameworks on land use planning................................ 397 (a) Constitution of Kenya, 2010............................................... 398 (b) National Land Policy.......................................................... 398 (c) Draft National Land Use Policy.......................................... 399 (d) The Physical Planning Act.................................................. 399 (e) Environmental Management and Coordination Act........... 401 (f) Land Act, 2012.................................................................... 403 (g) County Government Act, 2012........................................... 404 (h) Urban Areas and Cities Act, 2011....................................... 405 13.3.1 Land use planning tools................................................................ 406 (a) Zoning ................................................................................ 406 (b) Master planning ................................................................. 407 (c) Environmental reviews of developmental activities........... 408 (d) Land subdivision and development controls....................... 409 13.4 Aligning land use and land tenure........................................................... 410 Chapter Fourteen: Conclusion ...................................................................... 413 14.0 Introduction............................................................................................. 413 14.1 Land grabbing ......................................................................................... 414 14.2 Land and collateral lending..................................................................... 416 14.3 Land and forced evictions........................................................................ 417 14.4 Land and ethnic clashes........................................................................... 421 14.5 Transitional justice and the land question............................................... 425 14.6 Political goodwill in implementing land reforms.................................... 427

PREFACE

Property is a broad and complex subject, whose scope and substance cannot be fully canvassed in one book, article or monograph. However, it is sad that there is no book in Kenya that comprehensively examines the whole spectrum of property law, yet property, and in particular land, is so central and essential to the political, economic and cultural aspects of life and the survival and livelihoods of communities in Kenya. Most of the books and papers that have so far been written have focused on far narrower areas or issues in property law without a fuller and holistic discussion of the subject. It, therefore, became necessary to start the journey of developing a book that would fill this gap and be a useful guide to property law students, teachers, academics, judges and legal practitioners in Kenya and beyond. As observed by Samuel Johnson, the English poet and essayist, ‘a man will turn over half a library to make one book.’ This illustrates our journey thus far which has been characterized with hallmarks and setbacks. However, in the midst of all this, we kept the hope alive and took courage in Clarence Day Jr’s words that ‘The world of books is the most remarkable creation of man. Nothing else that he builds ever lasts. Monuments fall, nations perish, civilizations grow old and die out, and after an era new races build others. But in the world of books are volumes that have seen this happen again and again and yet live on, still young, still as fresh as the day they were written, still telling men’s hearts of the hearts of men centuries dead.’ With the American author’s encouragement, we found the strength to make our small contribution to the existing body of knowledge and are hopeful that the purpose set out at the beginning has been met and that the reader will find the book worth the read. This book simplifies complex problems in the area of the law of property in a manner that is clear, understandable, fascinating and contextual to the reader while at the same time discussing the extensive body of laws, policies and regulations that inform the body of property law. It covers a whole array of areas in property law

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from the concept and nature of property, theoretical foundations, forms of property, role of property, regulation, matrimonial property rights, to the management and administration of the various categories of land. As the reader may already know, the history of property law in Kenya transcends over a century and the gamut of property laws has evolved and continues to evolve with time especially with the Constitution of Kenya 2010 which mandates Parliament to enact laws and to review and consolidate others to conform to the spirit of the 2010 Constitution. Therefore, the authors have taken note of the fact that Parliament continues to legislate on property and thus opted to state the law as at August 2016. Therefore, the journey is not yet over and the publication of the book at this point only indicates a pause taken to look back at the work accomplished and to open the discourse on the issues. We are alive to the fact that such a book intended for a broad audience cannot necessarily consider all nuances and complexities that underpin the law of property. As already indicated, we are also mindful of the fact that the subject of property is one that is in a constant state of flux and is shaped and influenced by a multiplicity of factors. Thus, the reader will come across certain recommendations, ideas and perspectives in the book that raise more questions than answers. Some of the questions may be answered by legislative enactments while others may require judicial, policy and academic interventions. Therefore, the publication of the book at this point opens up the discourse on such issues and the search for the answers then still continues. Francis Kariuki, Smith Ouma and Raphael Ng’etich 9 November 2016 Nairobi, Kenya.

ACKNOWLEDGEMENTS

Most of the material in this book draws largely from my lectures in the teaching of property law at the Strathmore University Law School, and I would like to thank Strathmore University specially for granting me that opportunity. In a special way, I would also wish to acknowledge the assistance and support accorded to me by the Strathmore Law School fraternity, during the writing of this book. In this regard, I am greatly indebted to the Dean, Dr Luis Franceschi for guidance and granting all our requests for assistance. My gratitude also goes to my co-authors for their research assistance in the course of putting together the manuscript. I also thank Claude Mwangi for his invaluable research assistance. In addition, I wish to thank Mr Humphrey Sipalla and Dr John Osogo Ambani for reading the manuscript and proofs, as well as for their incisive comments that helped me bolster and consolidate some of the arguments and structural outlay of the book. And in a special way I wish to acknowledge and thank Mr Humphrey Sipalla for his comments on the African conceptions of property and for providing me with some research material that enriched the shape of Chapter Three significantly. I also wish to thank the Strathmore University Press (SUP), for agreeing to publish this work and for the invaluable help rendered in this journey. With the help of these individuals and institutions, the discussions in the book have been greatly enhanced and as I extend my heartfelt gratitude to them, I maintain that the responsibility for any shortcomings to be found in the book rests solely on the authors. Francis Kariuki

LIST OF CASES

Abdulla Akiio & 2 others v Kenya Urban Roads Authority, Petition No. 53 of 2015.

Africa Gas and Oil Company Limited v Attorney General & 3 others, Constitutional Petition No. 171 of 2016.

African Commission on Human and Peoples’ Rights v Republic of Kenya, ACtHPR Application 006/2012 (in relation to the Ogiek).

Agnes Nanjala William v Jacob Petrus Nicolas Vander Goes, Civil Appeal No. 127 of 2011.

Albert Mario Cordeiro & another v Vishram Shamji [2015] eKLR.

Amana v Hatimy, Mombasa HCCC No. 395 of 2009.

Amodu Tijani v Secretary, Southern Nigeria, Privy Council Decision, 1921.

Amoni Thomas Amfry v Minister of Lands, Petition No. 6 of 2013.

Amos Weru Murigu v Marata Wangari Kambi & another, Nairobi HCCC No. 33 of 2002.

10.

Aroko v Ngotho & another [1991] KLR 178.

11.

AW Rogan-Kamper v Robert Grosvenor [1977] KLR 123.

12.

Beatrice Wanjiku & another v Attorney General & another [2012] eKLR.

13. Beiersdorf East Africa Limited v Emirchem Products Limited [2002] eKLR. 14.

Belinda Murai & others v Amos Wainaina, Civil Appeal No. 46 of 1977.

15.

Boafo v Boafo [2005-2006] SCGLR 705.

16.

Box v FCT [1952] 86 CLR 387.

17.

Bruton v London and Quadrant Housing Trust [1999] UKHL 26.

18. Buckinghamshire County Council v Moran [1989] 2 All ER 255. 19.

Buckley v Valeo, 424 US 1, 14 [1976].

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20.

Centre for Minority Rights Development (Kenya) and Minority Rights Group (CEMIRIDE) on behalf of Endorois Welfare Council v Kenya, ACmHPR Comm. 276/03.

21.

Churton v Douglas (1859) 70 ER 385, 391.

22.

City of Owensboro v Cumberland Telephone Co. (1913) 230 US 58, 64, 33 Sup Ct 988, 990.

23. Coastal Aquaculture Ltd v Commissioner of Lands, Mombasa High Court Miscellaneous Civil Suit No. 169 of 2000. 24.

Colonial Bank v Whinney, 30 Ch. D. 261, 285 (1885).

25.

Commissioner of Lands and another v Coastal Aquaculture Ltd, Civil Appeal No. 252 of 1996 reported in KLR (E & L) Vol. 1, 264-295.

26.

Cruttwell v Lye [1810] 17 Ves Jun 335, 346.

27.

David Njoroge Macharia v Republic [2011] eKLR.

28.

Delgamuukw v British Colombia (1991) 79 (DLR) (4th) 185 (BCSC).

29.

Dibble v Hutton, 1 Day (Conn.) 221(1804).

30.

Draper v Trist [1934] 3 All ER 513.

31.

Dudley and District Banking Company v Ross [1888] 38 Ch D 295, 313.

32.

Edward Mwaniki Gaturu & another v Attorney General and 3 others, Petition No. 72 of 2013.

33.

Elijah Kipng’eno Arap Bii v Kenya Commercial Bank Ltd, Milimani Commercial Court Civil Case No. 324 of 2000.

34.

Esiroyo v Esiroyo, EA 388 (1973).

35.

Essa v Essa [1996] EA 53.

36.

Esther Ndegi Njiru & another v Leornard Gatei [2014] eKLR.

37.

FCT v Murray (1998) 193 CLR 605, 615.

38.

Gacheru v Hewan Investments Limited and Chief Land Registrar, Mombasa HCCC No. 11 of 2007.

39.

Gatimu Kingura v Muya Gathangari, 1976 KLR 265.

40.

Geraghty v Minter (1979) 142 CLR 177, 181.

41.

Gibbons v Ogden, 9 Wheat 1 (US 1824).

42.

Gideon Munyao Mutiso v Sarah Wanjiku Mutiso [1984] eKLR.

43.

Gissing v Gissing [1970] UKHL 3.

44.

Gladys WanjiruNgacha v Teresia Chepsaat & 4 others [2008] eKLR.

LIST OF CASES

xix

45. Gusii Mwalimu Investment Company Limited and two others v Mwalimu Hotel Kisii Limited, Civil Appeal No. 160 of 1995. 46.

Harrison Ngige Kaara v Gichobi Kaara & another [1997] eKLR.

47.

Harroil Petroleum Holding Ltd v Consolidated Bank Ltd & another, Eldoret E & L No. 335 of 2013.

48.

Hawaii Housing Authority v Midkiff, 467 US 229 (1984).

49.

Hepples v FC of T [1991-1992] 173 CLR 492, 542.

50.

Hickman v Peacey [1945] AC 304.

51.

I v I [1970].

52.

In the matter of Zipporah Wambui Mathara [2010] eKLR.

53.

Inland Revenue Commissioners v Muller & Co’s Margarine Limited [1901] AC 217.

54.

Isaka Wainaina v Murito [1922-23] 9 EALR 102.

55.

JA Pye (Oxford) Ltd v United Kingdom [2005] 19 BHRC 705.

56.

James Ndungu Wambua v the Republic and others, HC Misc. Civil Application No. 312 of 1991, and Civil Appeal No. 85 of 1992.

57.

Johnson Kinyua v Simon Gitura Rumuri, Nyeri Civil Appeal Number 265 of 2005.

58.

Joseph Gahumi Kiritu v Lawrence Munyambu Kabura, Civil Appeal No. 20 of 1993 (unreported).

59.

Joseph K Nderitu and 23 others v Attorney General and 2 others, Constitutional Petition No. 29 of 2012.

60.

Joseph Muruka v National Bank of Kenya Limited [2015] eKLR.

61.

Joseph Mutafari Situma v Nicholas Makhanu Cherongo [2007] eKLR.

62.

Kahindi Ngala Mwagandi v Mtana Lewa, Land Case No. 108 of 2011 (O.S).

63.

Kamore v Kamore [2000] 1 EA 81.

64.

Karanja v Karanja [1976] KLR, 307.

65.

Karisa Chengo and 2 others v Republic, Criminal Appeal No. 44, 45 and 76 of 2014.

66.

Kasturi Limited v Nyeri Wholesalers Limited, Civil Appeal No. 248 of 2012.

67.

Katz v United States, 389 US 347 [1967].

68. Kelo v City of New London, 843 A.2d 500 (Conn. 2004), aff’d, 125 S. Ct. 2655 [2005].

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Kemai & 9 others v Attorney General & 3 others KLR (E & L) 1; Civil Case No. 238 of 1999 (OS).

70. Kenya Electricity Transmission Co Ltd v Kedong Ranch Ltd & 3 others [2015] eKLR.

71. Kichwa indigenous people of Sarayaku v Ecuador, IACtHR Judgment of 27 June 2012 (Merits and reparations). 72.

Kipsigis Farm Enterprises v Stephen Ngerechi & 2 others [2014] eKLR.

73.

Kivuitu v Kivuitu [1991] 2 KAR 241.

74. Koinange Investments and Development Company Limited v Ian Kahiu Ngethe & 3 others [2015] eKLR. 75.

Komassai Plantations Limited v Bank of Baroda (Kenya) Limited [2003] 2 EA 532.

76. Kyangavo v Kenya Commercial Bank Limited and another [2014] 1 KLR 126. 77.

Lloyd v Butler [1949] 2 All ER 226.

78. Lubaru M’imanyara v Daniel Murungi, Miscellaneous Application No. 77 of 2012. 79.

Lynch v Household Finance Corp., 405 US 538, 552 [1972].

80.

Lyng v Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439 [1988].

81.

Mabo v Queensland [1992] 66 ALJR 408.

82.

Macedonia Resort Club Ltd v Silvans Awili [2016] eKLR.

83.

Magu v Nyamwanga and another, Nairobi HCCC No. 1509 of 2002.

84. Malcolm Bell v Hon. Daniel Toroitich Arap Moi and the Board of Governors Moi High School Kabarak, Application No. 1 of 2013, 24. 85.

Margaret Njeri Muiruri v Bank of Baroda (Kenya) Limited [2014] eKLR.

86.

Martin Ice Cream v Commissioner, 110 TC 189 (1998).

87.

Mary Rono v Jane Rono & another [2005] eKLR.

88.

Mellinger v City of Houston [1887] 68 Tex. 37.

89.

Mensah v Mensah [1998-99] SCGLR, 350.

90.

Mensah v Mensah [2012] SC, AD 2012, 9.

91.

Mereka v Mereka, Civil Appeal No. 236 of 2001.

92.

Michael Ronoh Kimutai & 2 others v Consolidated Bank of Kenya Ltd [2013] eKLR.

LIST OF CASES

xxi

93.

Minors Oposa v Secretary of the Department of Environmental and Natural Resources, Supreme Court of Philippines, Judgment of 30 July 1993.

94.

Moses Kibiego Yator v Ecobank Kenya Limited [2014] eKLR.

95.

Mtana Lewa v Kahindi Ngala Mwagandi [2015] eKLR.

96.

Mulwa Gwanombi and others representing the Jibana Tribe v Abdulrasool Alidina Visram [1913] 5 KLR 141.

97.

Munyao Mutiso v Sarah Wanjiku Mutiso [1984] eKLR.

98.

Munyi v Mungai, Nairobi HCCC No. 2091 of 1998.

99.

Murigu v Kambi and another, Nairobi HCCC No. 33 of 2002.

100. Muthembwa v Muthembwa, Civil Appeal No. 74 of 2001. 101. Mutiso v Mutiso [1998] LLR 3268 (CAK). 102. Mwinyi Hamisi Ali v Attorney General & another [1997] eKLR. 103. National Land Commission v Attorney General & 7 others, Supreme Court Advisory Opinion Reference No. 2 of 2014. 104. National Oil Corporation of Kenya v Robert Obegi Ongera & another [2014] eKLR. 105. Ngeny v Kenya Commercial Finance Co. Ltd [2002] 1 KLR 295 CA. 106. Nimambea and 2 others v Mwaboko and 3 others, Mombasa HCCC No. 292 of 2009. 107. Norwalk v Commissioner, 76 TCM 208 [1998]. 108. Nyangilo Ochieng & another v Kenya Commercial Bank, Civil Appeal No. 148 of 1995 [1996] eKLR. 109. O’Brien v O’Brien, 489 N.E.2d 712 (N.Y. 1985). 110. Observer Publications Limited v Campbell Mickey Mathew and others [2001] 10 BHRC 252, 49. 111. Odhiambo v Jordan Investments Limited and another, Mombasa HCCC No. 322 of 2008. 112. Ole Njogo and others v AG of the East African Protectorate (1914) 5 EALR 70. 113. Omukaisi Abulitsa v Albert Abulista, Kakamega HCCC No. 86 of 2005(UR). 114. Palmy Company Limited v Consolidated Bank of Kenya [2014] eKLR. 115. Paragon Finance plc v Nash [2002] All ER 248. 116. Paragon Finance plc v Staunton [2001] EWCA Civ 1466.

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117. Park View Shopping Arcade v Kang’ethe and 2 others, High Court Civil Suit No. 438 of 2004 reported in KLR (E&L) 591-610. 118. Parker v British Airways Board [1982] QB 1004. 119. Pastificio Lucio Garofalo SPA v Debenham & Fear Ltd [2013] eKLR. 120. Patrick Musimba v National Land Commisison & 4 others, Petition No 613 of 2014. 121. Peter Mburu Echaria v Priscilla Njeri Echaria, Civil Appeal No. 75 of 2007. 122. Pettit v Pettit [1969] UKHL 5 123. Petty v Faith Bible Christian Outreach Center, Inc., 584 N.W.2d 303, 307 (Iowa 1998). 124. Pierson v Post [1977] 38 P & CR 452. 125. Prudential Assurance Company Ltd v London Residuary Body [1992] AC 386. 126. Re Kisima Farm Ltd [1976] KLR 36. 127. Reckitt & Coleman Products v Borden Inc & others [1990] All ER 873. 128. Red Lion Broadcasting Co. v FCC 395 US 367 [1969]. 129. Republic v Kenya Forest Service ex parte Clement Kariuki and 2 others [2013] eKLR. 130. Republic v National Land Commission & 3 others ex parte Vivo Energy Kenya Limited (Formerly BP Kenya Limited) [2015] eKLR. 131. Republic v National Land Commission & Tropical Treasure Limited ex parte Krystalline Salt Limited [2015] eKLR. 132. RMM v BAM [2015] eKLR. 133. Royal Media Services Limited v Attorney General and others, Nairobi Petition No. 346 of 2012. 134. Said Majid Said v James Titus Kisia [2015] eKLR. 135. Sam Odera and others v the National Environmental Management Authority and EM Communications, HC Misc. Civil Application No. 400 of 2006. 136. Samson Ngengi Njuguna v Kenya Revenue Authority, Nairobi HC Civil Suit No. 730 of 2012.

137. Saramaka People v Suriname, IACtHR Judgment of 28 November 2007. 138. Satrose Ayuma & 11 others v Registered Trustees of the Kenya Railways Staff Retirement Benefits Scheme & 2 others [2011] eKLR.

LIST OF CASES

xxiii

139. Sea Star Malindi Ltd v Kenya Wildlife Service [2002] KLR 1. 140. Sela Obiero v Orego Opiyo, High Court Civil Case No. 44 of 1970. 141. Selton v Slade [1802] 7 Ves 265. 142. Semayne’s Case [1604] 5 Co Rep 91. 143. Seth Michael Kaseme v Selina K Ade, Civil Appeal No. 25 of 2012. 144. SHH v MHY [2015] eKLR. 145. Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v Nigeria, ACmHPR Comm. 155/96. 146. State of Haryana v Mukesh Kumar & others, Petition for Special Leave to Appeal (Civil) No. 28034 of 2011. 147. State v Cleveland & Pittsburgh RR, 94 Ohio St. 61, 80, 113 NE 677, 682 [1916]. 148. Tabitha Wangechi Nderitu v Simon Nderitu Kariuki [1998] eKLR. 149. Theresa Constabir v Jeremiah M Maroro & 3 others [2013] eKLR. 150. Torkington v Magee [I902] 2 KB 427, 430. 151. Trealor v Nute [1976] 1 WLR 1295. 152. Trust Bank Ltd v Eros Chemists Ltd [2000] 2 EA 550 (CAK). 153. UMM v IMM [2014] eKLR. 154. Virginia Edith Wambui v Joash Ochieng Ougo and Omolo Siranga [198288]1 KAR. 155. Virginia Wanjiku Mwangi v David Mwangi Jotham Kamau [2013] eKLR. 156. Vivian Cherono v Maria Chelangat Kerich [2014] eKLR. 157. Wabala and another v Okumu [1997] LLR (CAK). 158. Wallis’s Cayton Bay Holiday Camp Ltd v Shell-mex and BP Ltd [1974] 3 All ER 575. 159. Wambugu v Njuguna [1983] KLR 172. 160. Wangari Maathai v the Kenya Times Media Trust [1989] KLR 267. 161. William & Glyn’s Bank Ltd v Boland [1980] UKHL 4. 162. William v Hensman [1861] 70 E.R. 862. 163. William Yatich Sitetalia, William Arap Ngasia et al. v Baringo County Council, Civil Case No. 183 of 2000. 164. Zibretta Atamba Shikumba v Livingstone Shikumba Shikhuyu & another [2012] eKLR.

LIST OF STATUTES AND OFFICIAL DOCUMENTS

Auctioneers Rules 1997.

Civil Procedure Act (Chapter 21, Laws of Kenya).

Companies Act (Act No. 17 of 2015).

Constitution of Kenya (2010).

County Government Act, 2012 (No. 17 of 2012).

Community Land Act (Act No. 27 of 2016).

Crown Lands (Amended) Ordinance No. 23/1944.

Crown Lands Ordinance 1902.

10.

Crown Lands Ordinance 1915.

11.

Crown Lands Ordinance 22/1915.

12.

Crown Lands Ordinance No. 21/1902.

13.

Draft Mining Bill, 2014.

14.

Environment and Land Court Act, 2011 (Chapter 12A, Laws of Kenya).

15.

Environmental Impact Assessment and Audit Regulations, 2003 (Legal Notice No.101).

16.

Environmental Management and Conservation Act, No. 8 of 1999.

17.

Forests Conservation and Management Act (Act No. 34 of 2016).

18.

Forests Act (Chapter 385 Laws of Kenya) (Repealed).

19.

Government Lands Act. (Chapter 280 Laws of Kenya) (Repealed).

20.

Indian Lands Acquisition Act, 1894.

21. Industrial Property Act (Chapter 509, Laws of Kenya).

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PROPERTY LAW

22.

Judicature Act (Chapter 8, Laws of Kenya).

23.

Kenya Communications Regulations, 2001.

24.

Kenya Information and Communications (Amendment) Act (Act No. 41A of 2013).

25.

Kenya Information and Communications (Radio Communications and Frequency Spectrum) Regulations, 2010.

26.

Kenya Information and Communications Act, 1998.

27.

Land (Group Representatives) Act (Chapter 287, Laws of Kenya) (Repealed).

28.

Land Acquisition Act (Chapter 295, Laws of Kenya) (Repealed).

29.

Land Acquisition Act of India, 1894.

30.

Land Act (Act No. 6 of 2012).

31.

Land Adjudication Act, Cap. 284, Laws of Kenya.

32. Land Control Act (Chapter 302, Laws of Kenya). 33.

Land Laws (Amendment) Act (Act No. 28 of 2016).

34.

Land Registration Act (Act No. 3 of 2012).

35.

Land Titles (Amended) Ordinance No. 11/1910.

36.

Land Titles Act (Chapter 282, Laws of Kenya) (Repealed).

37.

Land Titles Ordinance 1908.

38.

Law of Contract Act (Chapter 23, Laws of Kenya).

39.

Law of Succession Act (Chapter 160, Laws of Kenya).

40.

The Environmental (Impact Assessment and Audit) Regulations, 2003, Legal Notice No. 101.

41.

Limitation of Actions Act (Chapter 22, Laws of Kenya).

42.

Local Government Act (Chapter 265 Laws of Kenya) (Repealed).

43.

Married Women’s Property Act 1882 (Repealed).

44.

Matrimonial Causes Act (Chapter 152, Laws of Kenya) (Repealed).

45. Matrimonial Property Act (Act No. 49 of 2013). 46.

Minimum and Maximum Land Holding Acreages Bill, 2015.

47.

National Land Commission Act (Act No. 5 of 2012).

48.

National Land Commission, Practice Guidelines to the County Land Management Boards on Processing of Development Applications, Kenya Gazette, Notice No. 7700, 24 October 2014.

LIST OF STATUTES AND OFFICIAL DOCUMENTS

xxvii

49.

National Land Use Policy (Draft Concept Paper) 2010.

50.

Native Lands Ordinance (No. 9 of 1930).

51.

Native Lands Trust Ordinance (No. 28 of 1938).

52.

Native Lands Trust Ordinance No. 9/1930.

53.

Physical Planning Act (Chapter 286, Law of Kenya).

54.

Registered Land Act (Chapter 300, Laws of Kenya) (Repealed).

55.

Registration of Titles Ordinance (Chapter 281, Laws of Kenya) (Repealed).

56. National Forest Policy, 2014. 57.

National Policy on Culture and Heritage, 2009.

58.

Sectional Properties Act (Chapter 286A, Laws of Kenya).

59.

Seeds and Plant Varieties Act (Chapter 326, Laws of Kenya).

60.

Sessional Paper No. 3 of 2009 on National Land Policy.

61. National Policy on Traditional Knowledge, Genetic Resources and Traditional Cultural Expressions, July 2009. 62.

Natural Resources (Classes of Transactions Subject to Ratification) Act (Act No. 41 of 2016).

63.

Trade Marks Act (Chapter 506, Laws of Kenya).

64.

Trust Lands Act (Chapter 288. Laws of Kenya) (Repealed).

65.

Urban Areas and Cities Act (Act No. 13 of 2011).

66.

Wildlife Conservation and Management Act (Act No. 47 of 2013).

67.

Wildlife (Management and Conservation) Act (Chapter 376, Laws of Kenya) (Repealed).

ORDERS-IN-COUNCIL

Africa Order-in-Council, 1889.

East African (Acquisition of Lands) Order-in-Council, 1898.

East African (Lands) Order-in-Council, 1901.

East African Order-in-Council, 1897.

East African Order-in-Council, 1899.

East African Order-in-Council, 1902.

Foreign Jurisdiction Act, 1890.

Kenya Annexation Order-in-Council, 1921.

9. Kenya Colony Order-in-Council, 1921.

REPORTS OF COMMISSIONS OF INQUIRY

Carter WM, Report of the Kenya land Commission, Her Majesty’s Stationery Office, 1934.

Republic of Kenya, Report of the Commission of inquiry into the illegal/irregular allocation of public land, 2004.

Republic of Kenya, Report of the Commission of inquiry into the land law system of Kenya on principles of a national land policy framework constitutional position of land and new institutional framework for land administration, 2002.

Republic of Kenya, Report of the Commission of inquiry into the post-election violence, 2008.

Republic of Kenya, Report of the Select Committee on the issue of land ownership along the ten-mile coastal strip of Kenya, 1978.

Republic of Kenya, The final report of the truth, justice & reconciliation Commission of Kenya, vol IIB, 3 May 2013 Version.

INTERNATIONAL TREATIES, CONVENTIONS AND DECLARATIONS

African Charter on Human and Peoples’ Rights, 27 June 1981, 1520 UNTS 217.

African Union Framework and Guidelines on Land Policy in Africa, 2009.

Agreement on Trade-Related Aspects of Intellectual Property Rights, 15 April 1994, 1869 UNTS 299.

American Convention of Human Rights, 21 November 1969, 1144 UNTS 123.

Berne Convention for the Protection of Literary and Artistic Works, 9 September 1886, 828 UNTS 221.

Charter of the United Nations, 24 October 1945, 1 UNTS XVI.

Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 UNTS 221.

Convention on Biological Diversity, 5 June 1992, 1760 UNTS 79.

Convention on the Elimination of All Forms of Discrimination against Women, 18 December 1979, 1249 UNTS 13.

10. Convention on the Protection of Cultural Property in the Event of Armed Conflict, 14 May 1954, 249 UNTS 240. 11.

Convention on the Rights and Duties of States, 26 December 1933, 165 LNTS 19.

12. Convention on Wetlands of International Importance especially as Waterfowl Habitat, 2 February 1971, 996 UNTS 245. 13.

International Covenant on Civil and Political Rights, 16 December 1966, 999 UNTS 171.

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PROPERTY LAW

14.

International Covenant on Economic, Social and Cultural Rights 16 December 1966, 993 UNTS 3.

15.

International Treaty on Plant Genetic Resources for Food and Agriculture, 3 November 2001, 2400 UNTS 303.

16.

Lisbon Agreement for the Protection of Appellations of Origin and their International Registration, 31 October 1958, 923 UNTS 205.

17.

Paris Convention for the Protection of Industrial Property, 20 March 1883, 828 UNTS 305.

18.

Patent Cooperation Treaty, 19 June 1970, 1160 UNTS 231.

19.

Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, 11 July 2003, CAB/LEG/66.6.

20.

Swakopmund Protocol on the Protection of Traditional Knowledge and Expressions of Folklore, 9 August 2010.

21.

UNGA, Declaration of principles governing the sea-bed and the ocean floor, and the subsoil thereof, beyond the limits of national jurisdiction, A/ RES/25/2749 (XXV) 12 December 1970.

22.

UNGA, Declaration on the rights of indigenous peoples, A/Res/61/295 13 September 2007.

23.

United Nations Convention on the Law of the Sea, 1833 UNTS 3, 10 December 1982.

24.

Universal Declaration of Human Rights, 10 December 1948, 217 A (III).

25.

Vienna Convention on Diplomatic Relations, 18 April 1961, 500 UNTS 95.

ABBREVIATIONS

ACHPR

African Charter on Human and Peoples’ Rights

ASALs

Arid and Semi-arid Lands

African Union

CCK

Communication Commission of Kenya

CEDAW

Convention on Elimination of All Forms of Discrimination Against Women

CLMBs

County Land Management Boards

CoK

Constitution of Kenya

ECHR

European Convention for the Protection of Human Rights and Fundamental Freedoms

EIA

Environmental Impact Assessment

10.

ELC

Environment and Land Court (Kenya)

11.

EMCA

Environmental Management and Coordination Act

12.

FAO

Food and Agriculture Organisation

13.

GIS

Geographical Information Systems

14.

GNSS

Global Navigation Satellite Systems

15.

ICESCR

International Covenant on Economic, Social and Cultural Rights

16.

IDPs

Internally Displaced Persons

17.

IPRs

Intellectual Property Rights

18.

KNCHR

Kenya National Commission on Human Rights

19.

LIMS

Land Information Management System

20.

NEMA

National Environment Management Authority (Kenya)

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21.

NIUPLAN

Nairobi Integrated Urban Master Plan

22.

NLC

National Land Commission (Kenya)

23.

NLIMS

National Land Information System

24.

NLP

National Land Policy (Kenya)

25.

NSDI

National Spatial Data Infrastructure

26.

SEA

Strategic Environmental Assessment

27.

SLDF

Sabaot Land Defence Force

28.

TDRM

Traditional Dispute Resolution Mechanisms

29.

TJRC

Truth Justice and Reconciliation Commission

30.

Traditional Knowledge

31.

TRIPs

Agreement on Trade-Related Aspects of Intellectual Property Rights

32.

UDHR

Universal Declaration of Human Rights

33.

WIPO

World Intellectual Property Organisation

34.

WTO

World Trade Organisation

INTRODUCTION

The subject of property has attracted and continues to attract interest, bewilderment and much critism at global, national and local levels. Humankind’s concern in daily life is usually the idea of rights, the right to ‘things’ or relationships and situations. These juristic concerns extend to claims on both corporeal and incorporeal things that are vital for survival. It is for this reason that man continues to strive to establish dominion over subjects of ownership. Sir William Blackstone rightly observes that, there is nothing which so generally strikes the imagination and engages the affections of mankind, as the right of property; or that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.1

The importance of these subjects of ownership has seen numerous studies being undertaken to disinter the root of claims over material endowments. Focus has especially been put on the study of property rights in land, with various theoretical justifications being conceptualised to explain these claims. In the African context, claims over the physical solum2 and fixtures have historically been laid by persons in common. However, global population growth and economic developments have resulted in a continuum towards individual claims in ownership with the concomitant de-emphasis on common holdings. In Africa, the introduction of alien property laws led to contemptuous treatment of the commons. The idea of an African conception of property has resulted in a melee of conceptions amongst property scholars. Definitely, this is inevitable based on the fact that property may mean different things to different people. This is the case also with

Blackstone W, Commentaries on the laws of England in four books, vol 1, JB Lippincott Company, Philadelphia, 1893. This is the upper surface of the soil profile where soil formation occurs.

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PROPERTY LAW

theories explaining the origins of property. The main divide has consequently been on whether there is an African view that can be used to elucidate property. To traditional African communities, land was held as a common resource with individuals only having user rights, a view comparable to Cicero’s analogy of the world as a great theatre, common to the public, but where a person can lay individual claims.3 To many African communities, these bucolic ownership systems are blissfully guarded as they define and are also the sources of their livelihoods. This contribution questions the various social, cultural, economic, legal, political and other philosophical theorisations on property. Certain fundamental questions are germane to this discourse. For instance, is there an African philosophy on property? Can African customary law adequately regulate the commons? Does the African view of property have a place in explaining property? Or has it been condemned to death by ‘modernity’? To pre-empt our conclusion, this book argues that an afrocentric view of phenomena is indeed necessary in the ‘modern’ day juridical assumptions and explanations of property. It is an embodiment of our past heritage, our present circumstances and our future aspirations as a people. Therefore, the African view of property is not moribund. It occupies a central place in the property theory realm. And so, we cannot go the whole hog in seeking to phase out common holdings as we might end up in a manifestly perilous situation. Apart from the theoretical underpinnings informing property, distribution of property rights in land also forms a central concern of this contribution. This book interrogates this phenomenon, while also addressing certain contemporary issues in property law. Such discourses include questions on division of matrimonial property upon divorce, judicial interventions in the course of development of matrimonial property law and the historical evolution of property law in Kenya. Lastly, the authors examine the challenges that have and continue to bedevil the property law regime in Kenya. In this regard, it is submitted that the hens have finally come home to roost with regard to private property holdings in Kenya. Current challenges in our property law regime are testament to the fact that private property holdings are fundamentally flawed. However, phasing out this typology of property holding is unnatural and indeed impossible. What advantage will we gain from turning back the wheels of history anyway? As Philip Ochieng argues, we are 3

Quemadmodum theatrum, cum commune sit, recte tamen dici potest ejus esse eum locum quem quisque occuparii. De Fin. l. 3, c. 20. Quoted in Blackstone, Commentaries on the laws of England in four books.

INTRODUCTION

xxxix

firmly entrenched in the capitalist trajectory4 and the most we can do is to use our ingenuity to find a clear balance that will allow the various property regimes in the country to flourish. To this end, the book offers a raft of recommendations that can inform policy and the legislative process.

Ochieng P, ‘Cultivating a legally more beneficial future’ The Nation, Nairobi, 1987, 186.

Chapter One

THE CONCEPT OF PROPERTY

1.0 Defining property In day-to-day endeavours, humankind is concerned with maximising wellbeing and improving the general state of affairs. People’s wellbeing and livelihoods are shaped and improved by the consumables naturally available to them, or those generated by the sweat of the brow or wit of the mind. Life’s bounties are distributed differently among the different echelons in a society. As a result, affirmative claims arise with regard to these bounties. These claims exist as against any other person, and are in rem, as against the whole world.1 It becomes plausible, therefore, to examine the nature of claims that a person may have as against other persons. Out of this, focus is drawn to the concept of property. The term property defies easy definition. This difficulty is well captured by Thomas Grey in the following observation: How do property rights differ from rights generally – from human rights or personal rights or rights to life or liberty, say? Our specialists and theoreticians have no answer; or rather, they have a multiplicity of widely different answers, related only in that they bear some association or analogy, more or less remote, to the common notion of property as ownership of things... It seems fair to conclude from a glance at the range of current usages that the specialists who design and manipulate the legal structures of the advanced capitalist economies could easily do without using the term ‘property’ at all.2

Hohfeld W, ‘Fundamental legal conceptions as applied in judicial reasoning’ 27 The Yale Law Journal (1917), 710-770. Grey T, ‘The disintegration of property’ in Pennock J and Chapman J (eds), Nomos XXII: Property, New York University Press, New York, 1979, 69.

PROPERTY LAW

The term ‘property’ is derived from the Latin word ‘proprius’ which means one’s own.3 Nonetheless, today the term may mean different things in different contexts. It is a term whose meaning and definition keeps changing in time and space. In this regard, John Cribbet notes that the concept of property is one that is ‘truly in transition.’4 Be that as it may, property to a layperson is a thing. It denotes the subject matter of a physical nature,5 such as land, a car, a house or a cow. One’s property, therefore, is that which he/she owns to do what he likes with.6 However, to a lawyer property is a concept, separate and distinct from the thing. It denotes a complex group of jural relations between the owner of a thing and all other individuals.7

1.1 Property and law In most jurisdictions, law is generally regarded as the foundation of property rights. Being a right, the law takes a key role in defining property and safeguarding proprietary claims. As rightly put by Justice Strayton in Mellinger v City of Houston,8 a right is a ‘well-founded claim, and a well-founded claim means nothing more or less than a claim recognised or secured by law.’9 Hence, property rights will often exist only and to the extent they are recognised by a particular legal system. It is only under a given legal system that property rights are conferred and guaranteed, and that affirmative proprietary claims can be given effective recognition. Property, therefore, cannot exist without law. It is for this reason that Jeremy Bentham posits that: Property and law are born together, and die together. Before laws were made there was no property; take away laws and property ceases.10

Costigan G, ‘A plea for a modern definition and classification of real property’ 12 The Yale Law Journal, 7 (1903), 425. 4 Cribbet J, ‘Concepts in transition: The search for a new definition of property’ University of Illinois Law Review, 1 (1986), 1. 5 Cribbet J and Johnson C, Principles of the law of property, 3 ed, Foundation Press, New York, 1989, 2. 6 Eastwood R (ed), Principles of the law of real property, 24 ed, Sweet & Maxwell, London, 1926, 2. 7 Alexander G and Peñalver E, ‘An introduction to property theory’ Cornell Law School Research Paper No. 12-15, (2012), 2. See also Cribbet, ‘Concepts in transition’. 8 [1887] 68 Tex. 37. 9 [1887] 68 Tex. 37. 10 Bentham J, The theory of legislation, Oceana Publications, New York, 1975 (1690), 69. 3

CHAPTER ONE: THE CONCEPT OF PROPERTY

Felix Cohen describes the relationship between law and property more vividly and directly when he observes as follows: That is property to which the following label can be attached. To the world: Keep off X unless you have my permission, which I may grant or withhold. Signed: Private Citizen. Endorsed: The State.11

Salmond, on the other hand, describes one’s property as ‘all that is his in law;’ proprietary rather than personal rights; proprietary rights in rem rather than in personam; and corporeal rather than incorporeal property in the sense that property exists only in real things or tangibles.12 This is also the case as elucidated by Stephen Leake when he states that rights to things, jura in rem, have for their subject some material thing, as land or goods, which the owner may use or dispose of in any manner he pleases within the limits prescribed by the terms of his right.13

The interplay between these rights and duties is regulated by law. Law plays a critical role in regulating social relations and the conduct of human beings in relation to the thing.

1.1.1 Property as rights Property can be understood and manifests itself as rights. A right is a legally recognised interest in, to, or against a person or a thing.14 Rights can be created and protected by law.15 Beale classifies rights into: static and dynamic rights.16 Static rights are those interests that a person has in a thing or in a person. They are permanent and persist until law brings them to an end or when the thing ceases to exist.17 Although some view property rights as being inherent to all human beings, others argue that they do not inhere in one by the mere virtue of being human but that an additional legal claim must exist.18 This can be distinguished from, say, right to pro 13 14 15

Cohen F, ‘Dialogue on private property’ 9 Rutgers Law Review (1954), 374. Fitzgerald P (ed), Salmond on jurisprudence, 12 ed, Sweet & Maxwell, London, 1966, 411. Leake S, An elementary digest in the law of property in land, 1 ed, Stevens & Son, London, 1874. Beale J, A treatise on conflict of laws, Harvard University Press, Cambridge MA, 1916, 139. It is apt to note that from a human rights standpoint, there are rights that inhere in human beings simply by virtue of being human. It is not law that grants these rights. One is born with them, for instance, the right to life, liberty, culture, religious freedom et cetera. 16 Beale, A treatise on conflict of laws, 139. 17 Beale, A treatise on conflict of laws, 139. 18 See generally, Bentham, The theory of legislation. This is a common view amongst social contract theorists who posit that property is a product of the civil society. 11

PROPERTY LAW

tection from expropriation (itself a subset to the legislated human right to property) which really is a due process right more than an inherent claim to property. It is for this reason, for instance, that the International Covenant on Civil and Political Rights (ICCPR),19 and the [European] Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR)20 only mention ‘property’ as a prohibited ground for discrimination. Property denotes a right of control over ‘things’ recognised by the society. Jeremy Waldron postulates that the ‘...law of property is about things, and our relationships with one another with respect to the use and control of things.’21 Property, therefore, consists of a package of legally recognised rights held by one person in relationship to others with respect to some thing or other object, and the state enforces those rights.22 Property regimes perform the mediation function in the relationship between the individual, property and the state.23 This explains why, in many legal regimes, the rights of persons to hold property is jealously guarded by legislation and judicial pronouncements. In many cases these go to the extent of defining the manner in which persons can transact in proprietary entitlements. Any attempts to infringe on these rights are usually met with opposition, which may at times be violent. The right to property is also interlinked with numerous other rights. An infringement on property rights amounts to violation and interference with the enjoyment of other rights, such as the right to water, shelter, housing, food, culture, religious freedom, development, right to access natural resources and family.24 The law is also concerned with the distribution of quantums of rights that can be enjoyed in property.25

Articles 2(1), 24(1) and 26, International Covenant on Civil and Political Rights, 16 December 1966, 999 UNTS 171. 20 Article 14, Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 UNTS 221. 21 Waldron J, ‘Property law’ in Patterson D (ed), A companion to philosophy of law and legal theory, 2 ed, Blackwell Publishing, Oxford, 2010, 9. 22 Waldron, ‘Property law’, 9. 23 Waldron, ‘Property law’, 9. 24 For the relationship between property rights and social and economic rights, see generally CEMIRIDE (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v Kenya, 276/2003; Satrose Ayuma & 11 Others v Registered Trustees of the Kenya Railways Staff Retirement Benefits Scheme & 2 Others [2011] eKLR; The Social and Economic Rights Action Center & the Center for Economic and Social Rights v Nigeria, Communication No. 155/96, 2002. 25 A fuller discussion on this issue is addressed later in this book. 19

CHAPTER ONE: THE CONCEPT OF PROPERTY

Land as a form of property has received much attention from a rights perspective. Most land disputes centre on questions of title to protect proprietary entitlements. For instance, a court may order an injunction against a defendant to restrain him/her from demolishing structures on the plaintiff’s land. In such an instance, the court is enforcing the plaintiff’s property rights against infringement by the defendant until the matter is finally determined.27 26

1.1.2 Property as a ‘bundle of sticks’ The lawyer’s view of property, as expressed above, is often described using the ‘bundle of rights or sticks’ metaphor, which captures a valuable insight about the flexible design of property institutions. Unlike Roman law, where property was recognised as a simple indivisible property, English common law conceived of property as a bundle of rights conferring powers on owners and implying obligations and liabilities on others.28 Under common law, distinct rights in the bundle can be vested in different owners, but under Roman law, property is seen as a Gordian knot that is tied together and cannot be distilled from the bundle.29 As such, under Roman law, property losses its efficacy if rights are unbundled or scattered among several property holders. Property is viewed as a bundle of sticks, rights or entitlements that an owner has in a given thing, situation or relationship. An owner may hold or enjoy all the sticks at the same time or may opt to sell, give or lease out some of them. Under the bundle of sticks concept of property, legal scholars have sought to identify central and essential features of ownership that sets property apart from other legal concepts. Honoré developed a limited menu of rights or incidents of ownership that are characteristic of most, though not all, systems of property.30 According to Honoré property comprises the following bundle of rights: See for example Article 40, Constitution of Kenya (2010), which safeguards the right to property. In Kenya, land is one of the most important forms of property and issues about access to, and control of land and land-based resources are hotly contested. See generally, Report of the Commission of Inquiry into Existing Land Law and Tenure Systems, 2002; Republic of Kenya, Report of the Truth Justice and Reconciliation Commission, 2013, and Republic of Kenya, Report of the Commission of Inquiry into the Illegal/Irregular Allocation of Public Land, 2004. 27 As was the case in Nimambea and Two Others v Mwaboko and Three Others, Mombasa HCCC No. 292 of 2009. 28 Okoth-Ogendo HWO, Teaching manuals on the law of property, University of Nairobi (83/84 1982). 29 Del Granado J “The genius of Roman law from a law and economics perspective,” XXVI Annual Conference of the European Association of Law and Economics, Rome, September 18 2009. 30 Honoré A, ‘Ownership’ in Coleman J (ed), Readings in the philosophy of law, Garland Publishing, New York, 1999, 563-574. 26

PROPERTY LAW

Ownership comprises the right to possess, the right to use, the right to manage, the right to the income of the thing, the right to the capital, the right to security, the rights or incidents of transmissibility and absence of term, the prohibition of harmful use, liability to execution, and the incident of residuarity: this makes eleven leading incidents.31

Collectively, Honoré argues that these incidents are essential features of the full concept of property. Nevertheless, he notes that although the listed incidents taken together may be sufficient, individually they are not ‘necessary conditions for the person of inherence to be designated the owner of a particular thing.’32 Alexander and Penalver critique the bundle of sticks metaphor arguing that viewing property as a bundle of rights risks turning property into a disaggregated collection of narrowly defined rights, causing us to lose sight of the connection of those rights to things. A similar view is expressed by Michael Heller who posits that: [W]hile the modern bundle-of-legal-relations metaphor reflects well the possibility of complex relational fragmentation, it gives a weak sense of the “thingness” of private property. Conflating the economic language of entitlements with the language of property rights causes theorists to collapse inadvertently the boundaries of private property. As long as theorists and the Court rely on the bundle-of-legal-relations metaphor, they need some analytical tool to distinguish things from fragments, bundles from rights, and private from non-private property.33

In essence, focusing too narrowly on any given right to a thing, and conceiving of that right independently from other rights in the thing, the property institution is bound to fall apart, and be replaced by disaggregated strands of rights and duties among particular people.34 However, modern property scholars have singled out specific sticks from the bundle that uniquely ‘symbolise’ or depict the essence of property. The critical sticks making up the metaphorical bundle35 and that are most commonly used to define property are: the right to exclude others; the right to possess and use, and the right to transfer.36

33 34 35 36 31 32

Honoré, ‘Ownership’, 562-574. Honoré, ‘Ownership’, 562-563. Heller MA, ‘The boundaries of private property’ 108 Yale Law Journal, 6 (1999), 1193. Waldron, ‘Property law’, 3. The right to destroy may also be part of the ‘bundle of sticks.’ Sprankling, Understanding property law, 4-7.

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(a) Right to exclude This is the entitlement to keep out or prevent others from the use or possession of property.37 In the case of homeowners, they may prevent others from trespassing or getting into the home without their permission. If you ‘own’ a car, you can preclude others from driving it. As Thomas Merrill points out quite assertively: [T]he right to exclude others is more than just ‘one of the most essential’ constituents of property – it is the sine qua non. Give someone the right to exclude others from a valued resource, i.e., a resource that is scarce relative to the human demand for it, and you give them property. Deny someone the exclusion right and they do not have property.38

In describing property as an exclusive dominion, Blackstone observes that: There is nothing which so generally strikes the imagination, and engages the affections of mankind, as the right of property; or that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.39

Although during Blackstone’s time the owner had exclusive and despotic control over property, today excludability is limited rather than absolute. A property owner is required to fulfill certain social obligations and ensure that he holds such goods in a manner that is sustainable. In Kenya, the right to property is not absolute as there are a number of limitations placed upon property owners. For example, property can be taken away to fulfil public purposes such as building roads, railway lines, hospitals, settle squatters etc.40 Property holding is also subject to the development control or police power of the state in the interest of public safety, public morality, public order and public health.41 Moreover, property owners must use property sustainably and avoid the degradation of the environment.42 Pope Francis talks of the non-absoluteness of property when he cautions that, …nowadays we must forcefully reject the notion that our being created in God’s image and given dominion over the earth justifies absolute dominion over other creatures. The biblical texts are to be read in their context, with an appropriate hermeneutic, recognizing that they tell us to ‘till and keep’ the garden of the world (cf. Gen 2:15). ‘Tilling’ refers to

Honoré, ‘Ownership’, 563-574. Merrill T, ‘Property and the right to exclude’ 77 Nebraska Law Review (1998), 730. 39 Blackstone W, Commentaries on the laws of England, facsimile ed of 1765-69, Chicago University Press, Chicago, 1979, 2. See also Alschuler A, ‘Rediscovering Blackstone’ 145 University of Pennsylvania Law Review 1, (1996), 3-4. 40 See Article 40, Constitution of Kenya (2010). 41 See Article 66, Constitution of Kenya (2010). 42 See Article 10 and 42, Constitution of Kenya (2010). 37 38

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cultivating, ploughing or working, while ‘keeping’ means caring, protecting, overseeing and preserving. This implies a relationship of mutual responsibility between human beings and nature. Each community can take care of the bounty of the earth whatever it needs for subsistence, but it also has the duty to protect the earth and to ensure its fruitfulness for coming generations.43

Moreover, it is noteworthy that the right to exclude does not mean exclusiveness especially where property interests are co-owned. In co-ownership no one person necessarily has an exclusive interest in the thing.44 Likewise, other derivative interests like easements are inherently non-exclusive. Nevertheless, the various interest holders acting together and at times each acting alone can exclude others. Natural resources like land in Africa are viewed as a commons. The term commons identifies ontologically organised land and associated resources available exclusively to specific communities, lineages or families operating as corporate entities.45 The location of radical title always was, and remains, in all members of the group’s past, present and future, constituted as corporate entities.46 An owner cannot abuse and exploit property recklessly,47 as the ownership of property does not confer a ‘despotic right of control.’48 For example, environmentalists argue that it is unjust to abuse and exploit natural resources recklessly, as you will be denying future generations their natural right to the material resources of the earth. Likewise, social-obligation theorists of property hold the view that ‘sociability’ puts a limit to the right to exclude. ‘Sociability’ is described as an indispensable means through which communities create just social relations.49 It includes the ability to recognise and show concern to others, engage in various forms of social interaction and to think of the situation of the other.50 In the context of property ownership, ‘sociability’ imposes obligations on owners to contribute, in ways that Pope Francis, Laudato Si’-Encyclical letter of the Holy Father Francis on care for our common home, Paulines Publications Africa, Nairobi, 2015, 49. 44 Munzer S, A theory of property, Cambridge University Press, Cambridge, 1990, 89-90. This is the case in joint ownership, common ownership, tenancy by entirety, and in relationships between a charger and chargee, landlord and tenant, and the present interest of a life estate holder and the future interest of a reversioner or remainderman. 45 Okoth-Ogendo, ‘The tragic African commons’, 2. 46 Okoth-Ogendo, ‘The tragic African commons’, 2 – 3. 47 Some of the controls on the use of property are the eminent domain and police powers of the State. 48 Small G, ‘Property theory: What is it and why teach it?’ Pacific Rim Real Estate Society Conference, Adelaide, 2001. 49 Alexander GS, ‘Ownership and obligations: The human flourishing theory of property’ Cornell Law Faculty Publications, Paper 653 (2013), 9. 50 Rose C, ‘The comedy of the commons: Custom, commerce, and inherently public property’ 53 University of Chicago Law Review (1986), 777-781. 43

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are appropriate to them, to the community welfare (infrastructure and cultivating affiliation), among other essential human capabilities.51 The right to exclude goes hand in hand with the right of control over things. The owner must have control over the thing. However, if the control is temporary, it does not amount to property, unless certain other conditions are fulfilled. These are that: the possession must be recognised by others, in the nature of being a right; in relation to permanent things, the right must have certain permanence and must be respected even in his absence; and the control must be exclusive since if the control is shared with others, then it is not private property.52 (b) Right to transfer Another stick in the bundle is the right to transfer the holder’s property rights to others, either during his lifetime or by operation of law, for instance due to death, bankruptcy/insolvency or liquidation of a corporation. It is the right of disposal of one’s ownership rights in property to another person or persons or to renounce such rights. An owner of a house may exercise his transfer rights by selling it to a buyer, donating it to a charity or bequeathing it to his family upon death. But the law imposes a number of restrictions on this right. For instance, the law prohibits transfer of title by a bankrupt so as not to defeat creditors’ claims to his/her estate. Moreover, a property owner cannot impose unnecessary conditions incident to the transfer, for example transferring land ‘to Kamau on condition that he will never sell the land.’ Similarly, a property owner cannot refuse to sell his property solely because of the transferee’s sex, tribe, colour, race, religion etc.53 Under inalienability rules, certain types of properties cannot be traded in the market such as body parts, while others cannot be transferred at death, such as a life estate.54 Is the right to transfer essential? Some say it is not essential, since certain interests such as pension rights cannot be transferred, but they are still property.55 Alexander, ‘Ownership and obligations’, 9. Such is the case with the lease of premises. See generally, Lobhouse L, ‘The historical evolution of property, in fact and in idea’ in Gore C (ed), Property: Its duties and rights, Clarendon Press, Oxford, 1913. 53 Such could be tantamount to discrimination which is proscribed under Article 27, Constitution of Kenya (2010). See, however, Article 65 thereof, which provides that one cannot sell a freehold interest to a non-citizen. 54 As discussed in Chapter 3 hereafter, ancestral land held communally is also non-transferrable. 55 Sprankling, Understanding property law, 6.

51 52

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(c) Right to possess and use The right to possess means that an owner can keep and manage property under his ownership, while the right to use means an owner can exploit the utility and enjoy the fruits and profits from the property.56 Although in traditional English common law a landowner could generally use his land in any way he wished, as long as the use was not a nuisance and no other person held an interest in the land, today land laws provide several restrictions on land use.57 However, the right to possess and use is not a necessary component of property as exemplified by landlord-tenant relationships, where the landlord parts with possession and use, but still retains property rights in the leased premises.

1.1.3 Property as a web of relationships Property has customarily been defined in terms of rights. In the last century, however, the law has increasingly recognised that property owners hold rights and owe duties to others.58 For example, a landowner has the right to use and enjoy his property but is also required by law not to pollute the river abutting his land by discharging waste into it. In this example, the requirement not to pollute is a duty the landowner owes, which limits his property rights. Therefore, property creates relationships among people concerning things. Such a conceptualisation of property was propounded by Wesley Hohfeld who envisioned property as a complex web of legally-enforceable relationships. Hohfeld developed an analytical framework for precisely classifying these relationships. According to him, a property owner can hold four distinct entitlements: rights, privileges, powers and immunities. Each entitlement is linked to a ‘correlative’ counterpart: right-duty; privilege-no right; power-liability; and immunity-disability. Being one of the key entitlements that one can lay claim to, a right represents an affirmative claim that one has against another.59 Lawrence Becker explains that rights are ‘more than…norms, or expectations, or standards of conduct’.60 Rights Honoré, ‘Ownership’, 563-74. See generally the Chapter dealing with Land Use. The state regulates land use in the interest of defence, public safety, public order, public morality, public health or land use planning, Article 66 of the Constitution of Kenya 2010. 58 Sprankling, Understanding property law, 7. 59 Andrews M, ‘Hohfeld’s cube’, 16 Akron Law Review, 3 (1983), 472. 60 Becker L, ‘Individual Rights’ in Smith P (ed), The nature and process of law: An introduction to legal philosophy, New York, Oxford University Press, 1993. 56 57

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define what is owed to the right holders by right respecters and are enforceable. A right holder can take justifiable steps to extract the right if it is not fulfilled.61 Rights are therefore definitive of the holder of the entitlement, the duty holder and the mechanisms that can be explored by the right holder to vindicate his entitlements in the event of their violations by the duty holder. The fact that certain entitlements can be enforced in cases of violation means that they are justiciable.62 Where a right exists, the remaining task that arises is the determination of their enforcement. Enforcement gives effect to the rights that a person may have. Enforcement of the rights is subsequently dependent on the existence of a corresponding duty. According to Hohfeld, duty is the jural correlative of a right.63 Alan Gewirth thus notes; A right is fulfilled when the correlative duty is carried out, i.e. when the required action is performed or the prohibited action is not performed. A right is infringed when the correlative duty is not carried out, i.e. when the required action is not performed or the prohibited action is performed. A right is violated when it is unjustly infringed, i.e. when the required action is unjustifiably not performed or the prohibited action is unjustifiably performed. And a right is overridden when it is justifiably infringed, so that there is sufficient justification for not carrying out the correlative duty, and the required action is justifiably not performed or the prohibited action is justifiably performed.64

Rights are therefore enforceable against a duty bearer. A person is said to be a duty bearer when he is commanded by the society to act or to forbear for the benefit of another person(s).65 Failure by the duty bearer to act in a particular way accrues certain penalties. These penalties are in most cases imposed by courts of law which, according to JB Ojwang’, are passive, technique-bound institutions which may be actuated only through expensive litigation, and, once in motion, operate in a solemn, orchestrated manner.66 It is, however, apt to note that certain institutions have also been established to enable right bearers vindicate their rights. These include courts and tribunals which adjudicate upon disputes regarding rights and impose penalties on those who infringe on rights. In addition, alternative methods of dis-

Becker, ‘Individual rights’, 57. See Siegel J, ‘A theory of justiciability’ 86 Texas Law Review (2007), 73. 63 See generally, Hohfeld W, ‘Some fundamental legal conceptions as applied in judicial reasoning’ 23 The Yale Law Journal (1913), 16-59. 64 Gewirth A, ‘Are there any absolute rights?’ in Waldron J (ed) Theories of rights, Oxford University Press, Oxford. 1984, 91. 65 Andrews, ‘Hohfeld’s cube’, 473. 66 Ojwang JB, Laying a basis for rights: Towards a jurisprudence of development, Nairobi University Press, Nairobi, 1992, 7. 61 62

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pute resolution, including traditional justice systems, are available in adjudicating proprietary claims among disputants. A privilege is a freedom from the right or claim of another. It is the opposite of a duty.67 It is an entitlement vested on a person who is at liberty to conduct himself in a certain manner. One with a privilege is under no threat for disobeying, as there is no duty imposed on him\her.68 Consequently, society has no right as against the privilege holders. A power is one’s ability to alter legal (or moral) relations.69 It is the opposite of legal disability and the correlative of legal liability.70 Power is manifest if, for instance, an owner extinguishes his proprietary interest, say, by transferring or abandoning it.71 In a nutshell, where person A has no claim against the society, it is said that the person has no right. Where the actions of person A have the capability to create certain legal obligations that can affect party B or a third party, it is said that party A has power. Where party B is required to perform a certain act in response to a power vested in A, party B is under a liability. Immunity arises where party A has certain legal protections that remove him from any legal burdens imposed by B. Where party B’s actions have no legal consequences on party A, then party B is under a disability. These relationships are summarised in the figure below.

PRIVILEGE

RIGHT

CORRELATIVE

DISABILITY

OPPOSITE

DUTY

OPPOSITE

OPPOSITE NO RIGHT

CORRELATIVE

IMMUNITY

POWER

LIABILITY

Jural Correlatives and Opposites as espoused by Wesley Hohfeld72 See generally, Hohfeld, ‘Some fundamental legal conceptions as applied in judicial reasoning’. Corbin A, ‘Legal analysis and terminology’ 29 Yale Law Journal (1919), 167. 69 Lazarev N, ‘Hohfeld’s analysis of rights: An essential approach to a conceptual and practical understanding of the nature of rights,’ http://www.austlii.edu.au/au/journals/MurUEJL/2005/9.html#Power_T on 21 March 2016. 70 Hohfeld, ‘Some fundamental legal conceptions as applied in judicial reasoning’, 45-52. 71 Hohfeld, ‘Some fundamental legal conceptions as applied in judicial reasoning’, 45-52. 72 Hohfeld, ‘Some fundamental legal conceptions as applied in judicial reasoning’, 45-52. 67 68

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1.1.4 Property as a basis of expectation This idea of property is well articulated by Bentham who argues that: ‘property is nothing but a basis of expectation’ in respect to things.73 An expectation is a disposition to predict that a certain event will occur together with an attitude of desiring and feeling entitled to count on its occurrence.74 Viewing property as a legal structure, using the Holfeldian framework, creates possible legal expectations in relation to things.75 Law provides the foundation for the disposition to predict, for instance, the future use and enjoyment of things together with the attitude of feeling entitled to count on them. Psychological dimensions of property are satisfied by the set of legal expectations that people have.76 Using the Holfeldian analysis, a homeowner has claim-rights to occupy and use the premises; privileges and powers to exclude others; to charge or lease the property; and to transfer it to others; immunity from expropriation of the house by the state without compensation; liability for property taxes, and so forth. Since these legal incidents are known by homeowners, they have expectations regarding the merits and demerits of home ownership. Property-related expectations, therefore, bring about stability which is necessary for personal and social wellbeing.

1.2 Property as value Bell conceptualises property as value. According to Bell, value is the central concept uniting the law of property. As a legal institution, property law concerns itself with the creation and protection of the value inherent in stable ownership.77 Apart from recognising and creating stable relationships between persons and assets, property law allows owners to extract utility that is otherwise unavailable. Bell criticises the classic incidents of property and/or the bundle of rights conception, arguing that they are subordinate to the overall goal of defending value.78 To him, the various rights attending property are best viewed not as random sticks, but rather as a means to property’s end. Ogden C (ed), Jeremy Bentham: The theory of legislation, Routledge & Kegan Paul, London, 1931, 111. 74 Munzer, A theory of property, 28-31. 75 Munzer, A theory of property, 28-31. 76 Munzer, A theory of property, 28-31. 77 Bell A and Parchomovsky G, ‘A theory of property’ 90 Cornell Law Review (2005), 538. 78 Bell and Parchomovsky, ‘A theory of property’, 539. 73

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There is a school of thought that argues that, instead of defining property using the bundle of sticks metaphor or in terms of the human interests it serves, we should look for a specific function that property performs. One of the main proponents of this view is Jeremy Waldron who defines the law of property as that area of law concerned with the allocation of material resources.79 Allocation is the process of ‘determining peacefully and reasonably predictably who is to have access to which resources for what purposes and when.’80 Relatedly and specifically, private property is described as a system that provides a set of ‘rules governing access to and control of material resources’ that are ‘organised around the idea that resources are on the whole separate objects each assigned and therefore belonging to some particular individual.’81

1.3 Property must vest in some person (s) Property may be private, public, joint or common, but must vest in some person or persons and must be exclusive of other persons. If, on the other hand, the entire world can use it, then it is not property at all.82 Lobhouse adequately captures the definitional and conceptual difficulties of property by stating that: Property is a principle which admits of variation in several distinct directions. It is a control which may be more or less fully recognized and guaranteed by society. It may be more or less permanent, more or less dependent on present use and possession or enjoyment. It may be concentrated in one hand, or common to many. It may extend to more, or to fewer, of the purposes to which a thing may be put. But that the control may be property at all, it must in some sort be recognized, in some sort independent of immediate physical enjoyment, and some point exclusive of control by other persons.83

The fact that property must vest in some person essentially means that these rights can either vest in natural or jural persons. Natural persons can hold property either individually or in common with others. The latter category will be discussed in detail when discussing property holdings in traditional African societies. Property can still be vested in the state as it has a legal personality and certain obli-

81 82 83 79 80

Waldron, Private Property, 34-35. Waldron, Private Property, 34-35. Waldron, Private Property, 38. Lobhouse, ‘The historical evolution of property, in fact and in idea’. Lobhouse, ‘The historical evolution of property, in fact and in idea’.

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gations under the public trust doctrine.84 Therefore, the state, or any other entity holding property on behalf of the public, can be vested with property rights to hold on behalf of the public. Withal, the state must act in the interest of the public with regard to these properties. In Kenya, public land (as defined in Article 62 of the Constitution of Kenya, 2010) is vested either in the county government or national government in trust for the people of Kenya and administered on their behalf by the National Land Commission. 85

1.4 Property as possession Under common law, possession is the origin of property hence the phrase ‘possession is nine points of the law.’86 Essentially, a person who had prior possession of a thing had a better right in the thing. Most common law actions used to recover a detained res or its value (trover, detinue, replevin, ejectment) were premised on possession or on a right to possession.87 For example, if A found a precious silver plate and then B took it from A’s house, A could recover it from B in an action of replevin,88 based on his prior possession, even though he is not the owner of the silver plate. Similarly, if a landowner left his land vacant and went away, and person A moved into the land without his permission and began to farm, A can recover the land by an action in ejectment89 if the owner dispossesses him because he has a protected interest. Lawson defines possession as follows: In practice indeed possession is often said to be a social rather than a physical fact, in the sense that a person will be held to possess a thing if he has the sort and extent of control See Sax J, ‘The public trust doctrine in natural resource law: Effective judicial intervention’ 68 Michigan Law Review (1970). 85 See generally, Articles 62(2) and 62(3), Constitution of Kenya (2010). 86 See Kanazawa M, ‘Possession is nine points of the law: The political economy of early public land disposal’ 33 Explorations in Economic History (1996), 227-249. 87 See Rose C, ‘Possession as the origin of property’ 52 The University of Chicago Law Review (1985). 88 Detinue at common law was the crime of wrongful detention of goods or personal possessions. Trover was a common-law action to recover the value of personal property that has been wrongfully disposed of by another person. Ejectment meant the eviction of a tenant from a property or the process by which an evicted tenant sought to recover possession and damages. Replevin was a procedure whereby the owner or person entitled to the possession of goods or chattels may recover the goods or chattels ‘from one who has wrongfully disdained or taken or who wrongfully detains such goods or chattels’. See Markoff R and Taliana L, ‘Replevin, detinue and attachment’ http://www.iicle.com/links/CredRts09Ch5-Markoff.pdf on 19 September 2015. 89 An action of ejectment is usually brought to recover possession of real property adversely held by the defendant. See Koffler J and Reppy A, Handbook of common law pleading, West Publishing, Minnesota, 1969. 84

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that society, considered as being represented by the ordinary reasonable man, would regard as appropriate to the kind of thing and the circumstances of the case.90

Possession requires both an intent to control the property and an act of control. If possession is continued long enough and adverse to the interests of the owner, it can ripen into ownership by operation of statute or the doctrine of prescription or adverse possession.92 This conception of possession takes consideration of the de facto situation and not the de jure position. Custody and control of the item in question are therefore of paramount importance. In discussing the concept of possession, Sir Robert Megarry avers that: 91

The possessory assizes were further remedies introduced by Henry II in order to bring litigation about land into the royal courts. Seizure of land was a disturbance of the peace as well as a civil wrong, and the principle behind these remedies was that for the sake of public order, the law should protect possession, whether rightful or wrongful, in order that the title might be tried peaceably.93

The question is, who was first to take possession? The first-in-time to take occupancy or possession of a thing owns it. First possession is the root of title as exemplified by the case of Pierson v Post.94 In that case, Post was hunting a fox one day on an abandoned beach and almost had the beast in his gun sight when an interloper killed the fox and ran off with the carcass. Post sued the interloper for the value of the fox; on the theory that his pursuit of the fox had established his property right to it. The court disagreed. In its decision, ‘occupancy’ or ‘possession’ went to the one who killed the animal or who at least wounded it mortally or caught it in a net. These acts brought the animal within ‘certain control’ that gives rise to possession and hence a claim of ownership. Possession thus means a clear act, whereby all the world understands that the pursuer has an unequivocal intention of appropriating the animal to his individual use. Sir E Perry cites the following passage from Bentham as to physical possession: What is it to possess? This appears a very simple question as there is none more difficult of resolution, and it is in vain that its solution is sought for in books of law: the difficulty has not even been perceived. It is not, however, a vain speculation of metaphysics. Everything which is most precious to a man may depend upon this question: – his property, his liberty, his honour, and even his life, indeed, in defence of my possession, I may lawfully strike,

92 93 94 90 91

Lawson F, Introduction to the law of property, Clarendon Press, Oxford, 1958, 33. Sprankling, Understanding property law, 34. Cribbet and Johnson, Principles of the law of property, 13. Megarry R and Wade H, The law of real property, 4 ed, Stevens & Sons, London, 1975, 1168. [1977] 38 P & CR 452.

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wound, and even kill if necessary. But was the thing in my possession? If the law trace no line of demarcation, if it decide not what is possession and what is not, I may, whilst acting with the best intentions, find myself guilty of the greatest crime, and what I thought was legitimate defence may, in the opinion of the judge, be robbery and murder.95

At common law, there is a higher category of appropriation of rights which ultimately flow from a political superior or sovereign, known as ‘ownership.’ Ownership in common law is regarded as a secure form of possession. Consequently, property denotes the right of ownership and property is said to be those things that are the object of one’s ownership. For example, if John lends you his laptop to do an assignment, the property in the laptop remains with John even though you have the possession. The term property also denotes the ‘object of a right of ownership.’ Here, it is possible to say that certain goods or things are the property of a given person. For example, a car, land or money belonging to John. Property also refers to valuable rights or interests which can be converted into money or valued in monetary terms. As an aggregate of rights, property consists of rights of ownership in tangible things clothed with possession; or of bare rights or mere rights unaccompanied with possession but which are nevertheless valuable.96

1.5 Seisin Seisin is a feudal possession of land which only the owner of a freehold estate in freehold land could have. Seisin has nothing to do with ‘seizing’ but denotes quiet possession of land of a particular kind. A person in seisin of land was ‘set’ there and continued to ‘sit’ there (he/she was in actual possession).97 A freeholder remained seised even after granting a term of years and giving up physical possession of the land, as receipt of rent was evidence of seisin.98 A man might be seised of many plots of land at the same time, whether or not he had granted any leases of them. The requirement of physical possession did not mean that the person seised had to be in continuous occupation as seisin was not lost merely because he was not in possession. Once it was acquired, it continued until another person acquired it.99 See Bentham J, The works of Jeremy, now first collected: Under the superintendence of his executor, John Bowring, William Tait, Edinburg, 1839. 96 Williams J, Principles of the law of real property, 24 ed, Sweet and Maxwell, London, 1926, 2. 97 Campbell H, A law dictionary containing definitions of the terms and phrases of American and English jurisprudence, ancient and modern, The Lawbook Exchange Ltd, New Jersey, 1995, 1068. 98 Megarry R and Baker P, Manual of the law of real property, 5 ed, Stevens, London, 1975, 18. 99 Oakley A, Megarry’s manual of the law of real property, 8 ed, Sweet & Maxwell, London, 2002, 35-36. 95

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1.6 Title In many jurisdictions, title is considered to be of paramount importance in determining property rights. Title is usually vested in an individual or corporate entity and this grants unlimited rights on these persons, subject only to the limitations put in place by the state. According to De Soto, title is key in unlocking the potential of informal property holdings and this is done through formalisation of title which also guarantees security of tenure.100 This ideology informed the colonial imposition of property regimes in Africa hence the introduction of private property. Title was considered to be sanctified101 and the vesting of title defeated all claims over land.102 As such, title vested in a person upon going through the formalisation processes that are established by the state. Under the formalised property arrangements, title is usually symbolised by an official document granted by the state upon completion of property transactions and upon registration. The Constitution of Kenya recognises that title can vest in private persons, the public and communities.103 Title is particularly a great concern in land ownership. At times, several people have laid similar claims over title to land. Such cases necessitate the ascertainment of the authenticity of the claims by the various parties. In doing this, it is apt to note that in certain cases, individuals may fraudulently seek to acquire title to land and a typical example of this was seen in Gacheru v Hewan Investments Limited and The Chief Land Registrar.104

De Soto H, The mystery of capital: Why capitalism triumphs in the west and fails everywhere else, Black Swan, London, 2001. 101 Okoth-Ogendo HWO, Tenants of the crown: Evolution of agrarian law and institutions in Kenya, African Centre for Technology Studies Press, Nairobi, 1991, 27. 102 See Sela Obiero v Opiyo and others [1972] EA 227. 103 Article 61, Constitution of Kenya (2010). 104 [2010] eKLR. The plaintiff had averred in his pleadings that he was the registered owner of Land Reference No. Galu/Kinondo/679 situate in Kwale District. He charged the suit property to Barclays Bank of Kenya, and therefore the original title to the suit property was left in the custody of the said bank. When the plaintiff conducted a search in 2006 at the Land Registry he was surprised to find that the property had been sold out to the 1st defendant by the bank by private treaty. After purporting to acquire the suit property, the 1st defendant proceeded to consolidate it with another property, L.R. No. Galu/ Kinondo/685, and thereafter consolidated the two in a new title, namely, L.R. No. Galu/Kinondo/1640. Such transfer and creation of a consolidated title, the plaintiff pleaded, were endorsed and registered by the 2nd defendant. When the plaintiff enquired about the transactions from the bank, the bank wrote back denying having sanctioned, known of, or participated in any such transaction; and that it was still in possession of the original title documents for the suit property. 100

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1.7 Ownership Ownership is the quantum of rights a person has in a thing (or any other proprietary interest) that cause people to assume that the thing or interest ‘belongs’ to that person.105 In the case of land, it is an estate in fee simple absolute.106 Honoré considers ownership as one of the characteristics of human institutions and as the greatest possible interest in property a mature legal system recognises.107 Accordingly, various property regimes have devised mechanisms through which a person can be said to own a proprietary interest. Identifiable in a majority of these property regimes are the incidences of ownership identified by Honoré,108 and outlined above. Be that as it may, for ownership to suffice, it is not a must that all the eleven incidences be present. Under Roman law, the subject of property was mainly concerned with dominium. This was firstly seen in the family setting where the father was vested with all powers over family property and could therefore determine the manner in which distribution was to take place. This system, through which the father had exclusive rights over property, is not only regarded as the origin of the legal technical concept of ‘ownership,’ but also as the origin of private property ownership.110 The powers that the father had were of a private nature and he was a representative of sovereign authority in the family. Subsequently, other social institutions developed and these concepts were replicated by these institutions.111 109

Thence, the Roman conception of ownership translated to absoluteness. Absoluteness in ownership has three dimensions. First, there is public power which should not be used to confiscate private property without prompt and just compensation. Second, there is absoluteness in the exercise of individual rights. And See Rose, ‘Possession as the origin of property’, 76. Cribbet and Johnson, Principles of the law of property, 17. 107 Honoré A, ‘Ownership’ in Guest A, (ed), Oxford essays in jurisprudence, Clarendon Press, Oxford, 1961, 107, 113. 108 See Honoré, ‘Ownership’, 107. 109 Cheng T, ‘The origin of ownership and the legitimacy of the existence and continuation of the system: A civil law person’s interpretation of the private property protection system in the basic law of the Macao SAR’ http://www.ipm.edu.mo/cntfiles/upload/docs/common/1country_2systems/issue1/p120.pdf on 13 July 2015. 110 Cheng, ‘The origin of ownership and the legitimacy of the existence and continuation of the system’, 122. 111 Cheng, ‘The origin of ownership and the legitimacy of the existence and continuation of the system’, 122. 105 106

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thirdly, absoluteness of the effective duration that one can hold their property.112 In examining the concept of ownership, one cannot therefore fail to identify its Roman origins and the idea of absoluteness. In all these discourses, the individual takes a central focus. Under African property systems, the idea of ownership also exists, the main difference with the Roman conception being that traditional Africans consider ownership to vest in the community as a whole.113 Individuals are only accorded access rights through the social institutions in place. There are mechanisms that determine the extent of access rights that individuals may be accorded. Exclusion from access only arises where an individual is banished from the community when they have not fulfilled their reciprocal obligations.114

1.8 Attributes of property One of the distinctive features of property rights is their in rem character. They are good as against the whole world imposing duties on everyone else to respect those rights. The creation of property rights has an impact on people who did not take part in the transaction concerning the property in question. Because the boundaries of the ‘thing’ play a vital role in defining the scope of people’s in rem duties to owners, the layperson is right to think that the ‘thing’ that is the subject of the property forms a crucial component of a workable definition of property.115 One of the distinctive features of property rights is their in rem quality. Property rights, unlike (say) contractual rights, are good against the entire world. They impose duties on everyone else to respect those rights. As a result, the creation of property rights may have an impact on people who did not take part in the transaction concerning the property in question.

See Duguit L, Les transformations generales du droit prive le code Napoleon, Chinese version translated by Xu Diping, China University of Political Science and Law Press, Beijing, 144-45 quoted in Cheng, ‘The origin of ownership and the legitimacy of the existence and continuation of the system’, 123. 113 See Okoth-Ogendo, ‘Formalising “informal” property systems: The problem of land rights reform in Africa’ https://learning.uonbi.ac.ke/courses/GPR203_001/document/Property_Law_GPR216-September,_2014/Articles/formalising_the_informal.pdf on 13 July 2015. 114 See Chapter on African Understanding of Property. 115 Alexander and Peñalver, ‘An introduction to property theory’, 2. 112

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A property right is made of various attributes or characteristics. These include security/quality of title; exclusivity; permanence; and transferability116. The embodiment/presence of these characteristics in a right to property differs from case to case.117 Security of title is the assurance that the owner is able to hold on to the property. It is the indication of certainty in having the rights. Absence of security implies that the property could be lost at any point in time.118 Exclusivity entitles the owner of the property to do certain things in relation to the property without interference by others. It constitutes the ability to exclude others from using or performing certain act(s). It is described as ‘one of the most essential sticks in the bundle of rights that are commonly characterized as property’119 and also as the sine qua non of property.120 Enforceability is an important aspect of exclusivity.121 Permanence relates to the time period of having the property rights. There are property rights that have a defined/finite period – for example, leases. Others have an infinite duration – freehold interest in land.122 Transferability refers to the ability of the holder of the property rights to confer/vest/transfer the right to another person. Divisibility is an aspect which has crucial implications for transferability: the holder may want to transfer certain subdivisions of the right to property.123

1.9 Property, contracts and torts The subject of property, contracts and torts can be approached from a unified perspective. This is especially in relation to the property rules, liability rules and inalienability rules propounded by Calabresi and Melamed.124 The rules of tort, for example, can be used to protect one’s property from damage or harm. According to

Bjorndal T,Gordon D,Arnason R,and Sumaila U (eds), Advances in fisheries economics: Festschrift in honour of Professor Gordon R. Munro, Blackwell Publishing, Oxford, 2007, 33. 117 Bjorndal, Gordon,Arnason,and Sumaila (eds), Advances in fisheries economics, 34. 118 Bjorndal, Gordon,Arnason,and Sumaila (eds), Advances in fisheries economics, 33. 119 Kaiser Aetna v United States, 444 U.S. 164, 176 (1979). 120 Merrill, ‘Property and the right to exclude’, 730. 121 Bjorndal, Gordon,Arnason,and Sumaila (eds), Advances in fisheries economics, 34. 122 Bjorndal, Gordon,Arnason,and Sumaila (eds), Advances in fisheries economics, 34. 123 Bjorndal, Gordon,Arnason,and Sumaila (eds), Advances in fisheries economics, 34. 124 See Calabresi G and Melamed D, ‘Property rules, liability rules, and inalienability: One view of the cathedral’ 85 Harvard Law Review, 6 (1972). 116

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Calabresi and Melamed, this is done through liability rules, where one is held liable for damage to the property of another.125 Contractual rules, on the other hand, can be used to facilitate efficiency in the holding of property and to determine the extent of one’s claims to property. The Law of Contracts Act, for example, requires all land transactions to be done in writing.126 Chapter 6 contains a detailed discussion on liability, inalienability and contractual rules.

125 126

Calabresi and Melamed, ‘Property rules, liability rules, and inalienability’, 1092. Section 3(3), Law of Contract Act (Chapter 23, Laws of Kenya).

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THE ORIGIN AND JUSTIFICATION OF PROPERTY RIGHTS

2.0 Introduction This chapter addresses the question of how property rights, that is, legal claims to a specific thing (res) or any other subject of ownership, are (or were) acquired in the first instance and the justification for granting property rights. Various theories of property are discussed to help discharge this mandate. The chapter does not assess how proprietary interests are transferred from one owner to another, either by sale, gift, or transmission upon death, bankruptcy etc. There are as many theories of property as there are property systems.1 By a theory of property is meant the normative justifications for granting property rights or allocating material resources in a particular way.2 A theory of property tries to ascertain and explain the interests that are to be served by a property system. The interests could be human autonomy, self-realisation, aggregate well-being, or a combination of these (and perhaps others).3 After providing reasons for allocating or granting property rights in a particular way, the theory supplies those affected by the property allocation with reasons for respecting it, even when refusing to do so might make them better off.

2 3

Small G, “Property theory: What is it and why teach it?” Seventh Pacific Rim Real Estate Society Conference, Adelaide, 21 - 24 January 2001. Bell A and Parchomovsky G, ‘A theory of property’ 90 Cornell Law Review (2005), 549. Alexander G and Peñalver E, An introduction to property theory, Cambridge University Press, Cambridge, 2012, 6.

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A theory of property also attempts to specify the content of property rights at various levels of generality, for example, by setting the contours of the owner’s right to exclude others from various kinds of property. Related to this process of specification, a theory of property also says whether the law should treat those rights as disaggregated sticks in a bundle of rights that can be individually parcelled out among different stakeholders, or whether they should go together in standardised clusters. Depending on the content of the theory, the primary bearer of property rights could be individuals, families, clans, communities, nations or corporations, among others.4 It is noteworthy that scholars are yet to agree on a universal theory that can succinctly explain the origins of property rights. Debates still rage over this issue.5 Nonetheless, a common thread with all the theories of property is an examination of the origins of property, the broader goals served by property and which entity should be vested with property rights.6 Although it is possible to justify most forms of property, some prove difficult to justify using the main theories of property. For instance, ‘property’ in oneself or even in the fruits of one’s own labour can easily be justified as it is obviously natural. However, it is difficult to justify property in land. Land existed in a state of nature, for the use of humankind and as such no person has a natural link to land. Land is sheer nature, rather than human product or invention, which is simply given in advance of any individual’s activity. It is part of the given framework for human life and action.7 It is, therefore, difficult to explain how certain individuals came to have more land than others and some none at all.8 Although, a current owner of land can justify his/her claim to land through conventional means such as purchase, gift or inheritance, such ownership is only based on the licit title of the previous owner.9 The regress of title cannot be infinite and will always end at some point where an individual or group has simply appropriated as private what was formerly common to all.10 According to Jean-Jacques Rousseau, if someone puts a fence around a piece of land which is bigger than what he needs, he has committed robbery because

Alexander and Peñalver, An introduction to property theory, 6. See also Panesar S, ‘Theories of private property in modern property law’ 15 Denning Law Journal (2000), 114. 5 Simmons A, ‘Original acquisition justifications of private property’ in Paul E, Miller F and Paul J (eds), Property rights, Cambridge University Press, Cambridge, 1994, 65. 6 Panesar, ‘Theories of private property in modern property law’, 114-115. 7 Patterson D, A companion to philosophy of law and legal theory, Wiley-Blackwell, Oxford, 2010, 10. 8 This makes it seemingly difficult to justify private property rights in land. 9 Small, “Property theory”, 5. 10 Small, “Property theory”, 5. 4

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he has grabbed and declared as his own what is meant to be common property.11 Essentially, Rousseau’s argument is that the invention of the institution of private property in land is basically a formalisation of an illegitimate act. However, once committed and passed unexpiated, it cannot be undone.12 Similar arguments have often been used by the landed gentry in Africa to justify their private property in land.13 Most of them argue that the land was acquired on the basis of a willing buyer-willing seller framework.14 As such, the principle fully protects the interests of existing landowners, as they cannot be compelled to sell against their will nor at a price with which they are not fully satisfied.15 World cultures and legal traditions have contended and continue to contend with the difficulties of granting private property rights in land. Some regimes such as the Roman land regime tried to marry features of indigenous and religious property systems.16 On the other hand, the English Common Law retained from the Anglo-Saxon feudal concept the idea that an individual cannot own land as such, but can hold a bundle of distinct rights over it.17 Under feudal landholding, the lord’s sovereignty included the right to grant (restricted) property rights to his subjects, who would in return offer certain services to the lord.18 Elsewhere in Europe, the evolution of property law oscillated between the interests of the urban citizenries who favoured an unrestricted ownership by mortal individuals and those in the princely states who defended the dual concept of immortal over-lordship.19 With the American and the French revolutions, the individual, mortal citizen was declared to be the source and the owner of all thinkable rights. An individual was not

As cited in Oestereich J, ‘Land and property rights: Some remarks on basic concepts and general perspectives’ 24 Habitat International, 2 (2000), 221. 12 Oestereich, ‘Land and property rights’, 230. 13 This is so, especially with political leaders who took over political power at independence, and used political powers to amass vast tracts of land acquired from the settlers who were leaving African countries at independence. However, the phenomenon equally applies to whites who opted to remain upon independence in countries such as Mozambique, Zimbabwe, South Africa, Angola and Namibia. 14 Lahiff E, ‘Policy brief debating land reform, natural resources and poverty’ Programme for Land and Agrarian Studies Policy Brief, No. 17, September 2005. Under the willing buyer-willing seller principle, the market is characterized by the supposedly willing sellers who have monopolistic control of land and veto powers. 15 Lahiff, ‘Policy brief debating land reform, natural resources and poverty’, 2. 16 United Nations, Urban land policies and land-use control measures, vol 5, United Nations Publications, New York, 1973, 5. 17 United Nations, Urban land policies and land-use control measures, 5. 18 United Nations, Urban land policies and land-use control measures, 224. 19 Oestereich, ‘Land and property rights’, 224. 11

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sovereign only in the political sense. He also became sovereign over his property20 paving the way for the recognition of property rights in national constitutions. The chapter discusses the dominant theories of property with two main objectives in mind-to examine the origins of property rights and to highlight the justifications for granting those rights.

2.1 First occupancy or first possession theory According to the first occupancy theory, the first-in-time to take possession is regarded the owner of the property. The desert theory, as it is also known, was particularly influential in the 19th century, when it was used to allocate property rights in natural resources such as wild animals, fish, oil, gas and surface water which were regarded as unowned.21 For instance, if a fisherman used his hunting gear to catch a wild fish, he would acquire property rights in the fish by being the first person to capture it. Blackstone describes this theory aptly. He posits that in the state of nature, the population was small and natural resources were abundant. As such, everything was held in common by the people as a gift from the Creator and anyone could take ‘from the public stock to his own use such things as his immediate necessities required.’22 Further, Blackstone argues that by the law of nature and reason, ‘he who first began to use it, acquired therein a kind of transient property that lasted so long as he was using it, and no longer.’23 Given that all resources are given to humankind in common, such resources become one’s private property through the consent of or agreement with the rest of humankind.24 Absent these agreements, the occupancy theory provides that an implied agreement can be found on the simple basis of first occupation.25 According to the proponents of this theory, possession forms the root of title,26 and one should not be concerned with the manner through which persons became occupants of the property. Occupation inviolably dispels any contestations that may be advanced to 22 23 24 25 26 20 21

Oestereich, ‘Land and property rights’, 224. Sprankling J, Understanding property law, 2 ed, Matthew Bender, New Jersey, 2007, 13. Blackstone W, Commentaries on the laws of England, Bell R (ed), Union Library, Philadelphia, 1771. Blackstone, Commentaries on the laws of England, 3. Panesar, ‘Theories of private property in modern property law’, 116. Panesar, ‘Theories of private property in modern property law’, 116. See Pollock F and Wright R, An essay on possession in the common law, Clarendon Press, Oxford, 1888.

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wards the title.27 Despite the apparent simplicity of the theory, difficulties may arise as to who is the first possessor and as to the actual point at which and the amount of labour needed to take first possession. It is even more problematic where there are overlapping efforts to take first possession.28 One of the earliest attempts where the general principles on first occupation were laid was in the case of Pierson v Post.29 In this case Lodowick Post, a fox hunter, was chasing a fox through vacant land when Pierson came across the fox, killed it and took it away knowing it was being chased by Post. Post sued Pierson on an action for trespass for violating his property rights in the wild fox. Post’s argument was that he had ownership of the fox since by chasing the fox in the course of hunting he had established possession. The trial court found in favour of Post necessitating an appeal by Pierson. On appeal, the court was asked to determine whether one could obtain property rights to a wild animal by pursuit. The majority opinion, written by Justice Tompkins, was in favour of Pierson. The Court reasoned that given the common law requirement to have control over one’s possessions, mere pursuit of the fox without actual capture and control of the thing could not give rise to first possession. Consequently, the Court noted that: If the first seeing, starting, or pursuing such animals, without having so wounded, circumvented or ensnared the animal, so as to deprive them of their natural liberty, and subject them to the control of their pursuer, should afford the basis of actions against others for intercepting and killing them, it would prove a fertile course of quarrels and litigation.30

Therefore, something more is needed apart from chasing or pursuing an animal. It is also important to note that for possession to be considered to be effective, the act of appropriation must be communicated to the whole world.31 In Pierson v Post it was stated that possession requires the entire world to understand that the pursuer has ‘an unequivocal intention of appropriating the animal to his individual use and that anything short of that would not be sufficient to give property in the animal.’32 Communication can take different forms ranging from physical presence on the thing to the demarcation of the extent of one’s claim. Moreover, for there to be property through the occupancy theory, one must expend labour or mix labour

29 30 31 32 27 28

Pollock and Wright, An essay on possession in the common law, 95. Panesar, ‘Theories of private property in modern property law’, 116-118. 3 Caines 175 (NY 1805). 3 Caines 175 (NY 1805). Panesar, ‘Theories of private property in modern property law’, 118. Panesar, ‘Theories of private property in modern property law’, 118.

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with the subject of ownership.33 For ownership to arise the act must make it clear to the whole world that control has been taken and mixing of one’s labour must be present. Labour is necessary in making the important notice to the whole world. In this case, although both Post and Pierson expended labour in chasing and pursuing the fox, Post’s labour did not attain the important stage of communicating notice to the whole world. Pierson’s labour effectively made that important communication to the whole world.34 The occupancy theory was again discussed in Parker v British Airways Board,35 where a passenger who found a gold bracelet in a lounge of an airport was allowed to keep the proceeds of sale. It was argued that the passenger had, in the context of the occupation theory, made effective notice to the whole world by picking the bracelet and taking control thereof. The airport’s claim was defeated by the fact that it had not made any attempts to control such lost properties by putting up an effective sign indicating that such lost objects belonged to the airport. The occupation theory is also used to explain the concept of adverse possession. Adverse possession recognises that long uncontested and uninterrupted possession of land by a trespasser confers upon him an effective title to the land as against the registered proprietor.36 Under this principle, the requirement for notice or communication suffices. In this connection, land law commentators have argued that ‘…property in land is more about fact than about right; it derives ultimately not from words upon parchment but from the elementary primacy of sustained possession.’37 The principle of first possession has also been used in vindicating the land rights of indigenous communities. In Australia, the High Court in Mabo v Queensland38 was forced to recognise the communal native title of the Merriam people to land on Murray Island based on the long periods they had occupied the land.39 The 35 36

Rose C, ‘Possession as the origin of property’ Faculty Scholarship Series, Paper 1830 (1985). Panesar, ‘Theories of private property in modern property law’, 116-118. [1982] QB 1004. Panesar, ‘Theories of private property in modern property law’, 120. See also Ojwang JB, The common law, judges’ law: Land and environment before the Kenyan court, Strathmore University Press, Nairobi, 2014, 127. 37 Gray R and Gray S, ‘The idea of property in land’ in Bight S and Dewar J (eds), Land law: Themes and perspectives, Oxford University Press, Oxford, 1998, 19. 38 [1992] 66 ALJR 408. See Kirby M, ‘In defence of Mabo’ 1 James Cook University Law Review (1994). 39 Similar arguments have used in agitating for the land rights of indigenous groups in Kenya. See generally, Centre for Minority Rights Development (CEMIRIDE) and Minority Rights Group International (MRG) v Kenya (Decision of February 2010), Communication 276/2003 (in relation to the Endorois); African Commission on Human and Peoples’ Rights v Republic of Kenya, African Court on Human and 33 34

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first-in-time principle is still applicable in determining the respective priority of competing title claims to land. If a person conveys his land to A, and later conveys the same land to B, the first-in-time principle would resolve this conflict: the person whose interest in land is registered first prevails.40 So if A’s transfer was registered on 1st June 2015, and B’s the following day, then all other things being constant, A is regarded as the owner of the land.41 The main criticism levelled against the first occupancy theory is that while it may explain how certain property rights evolved or their origins, it does not adequately justify the existence of private property. For instance, why would a person who is exploring and discovers a precious stone own the stone, rather than the community or residents of the area where the stone was discovered?42

2.2 Natural rights theory to property Natural law posits that property is a gift of nature originally granted free to all humankind.43 The appropriation and institutional arrangements for regulating property are derived from human laws. Therefore, just as by nature human beings are free and equal, by nature they have a right to property.44 Saint John Paul II forcefully reaffirms the existence of natural rights to property by stating that ‘God gave the earth to the whole human race for the sustenance of all its members, without excluding or favouring anyone’.45 Further, He asserts that it is not in accord with God’s plan that property, which is a gift from Him, be used in such a way that it benefits only a few.46 Similarly, Pope Francis writes that the ‘natural environ-

45 46

Peoples’ Rights, Application No. 006 of 2012 (in relation to the Ogiek) and Kemai & 9 others v Attorney General & 3 others KLR (E & L) 1; Civil Case No. 238 of 1999 (OS) (Ogiek’s agitation for their land rights before Kenyan courts). However, at equity one main exception to this rule is that the interest of later bona fide purchaser of a legal interest prevails over one holding a prior equitable title. The first-in-time principle is legislated in relation to charges. See Section 81(1), Land Act (Chapter 280, Laws of Kenya) providing that charges rank according to the order in which they are registered. Sprankling, Understanding property law, 14. See also Lowie RH, ‘Incorporeal property in primitive society’ 37 Yale Law Journal (1928), 551. See Aristotle, Politics, Jowett B (trans), 2005 https://ebooks.adelaide.edu.au/a/aristotle/a8po/complete. html on 6 April 2016. Francis I, Laudato si’- Encyclical letter of the Holy Father Francis on care for our common home, Paulines Publications Africa, Nairobi, 2015, 34. Pope John Paul II, Encyclical letter, Centesimus annus (1 May 1991), 31, AAS, 83 (1991), 831. Pope John Paul II, Homily at mass for farmers, Recife, Brazil (7 July 1980): AAS 72 (1980), 926.

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ment is a collective good, the patrimony of all humanity and the responsibility of everyone.’47 Pope Francis is talking about the natural environment, a broader term that includes most forms of proprietary interests. The natural right to property is also evident from the Muslim perspective where property is viewed as a gift from God to the people. Hashmi SH recounts that, ‘…God is the ultimate owner of all things on earth and only He has complete and unassailable rights of disposal. Man can claim only a contingent right of ownership, as servant the servant of God and as His steward or vicegerent on earth.’48

Therefore, human beings are to use property well as they are mere stewards. Even though there is prohibition against the amassing of wealth, property is given to human beings so that they may be tested as to what they can do with it. Human beings are called upon to use the property ‘...subject...to the constraints God imposes on what is lawful and unlawful.’49 Writing on the labour theory, John Locke argues that property rights are natural rights of individuals governed by the principles of natural justice. Property rights are granted to humanity generally but by mixing their labour with common property, man can extract private property. Locke observes as follows: ‘God, who hath given the World to Men in common, hath also given them reason to make use of it to the best advantage of Life, and convenience. The Earth, and all that is therein… belong to Mankind in common, as they are produced by the spontaneous hand of Nature; and nobody has originally a private Dominion, exclusive of the rest of Mankind, in any of them, as they are thus in their natural state…’50

Therefore, since the right to property vests in a person not because of the grant from the state but from a deity, governmental interference or re-organisation of these rights is not permissible without the consent of the individual.51 What is more, the state cannot lay exclusive rights to resources which would allow it to interfere with and control those resources per se.52 Likewise for individuals, exclusivity can Francis I, Laudato si’, 70. Hashmi SH, ‘The problem of poverty in Islamic ethics’ in Galston WA and Hoffenberg PH (eds), Poverty and morality: Religious and secular perspectives, Cambridge University Press, Cambridge, 2010, 183. 49 Hashmi, ‘The problem of poverty in Islamic ethics’, 184. 50 Locke J, Second treatise of government, Hafner Publishing, New York, 1690, Ch 5, para 26. 51 For a detailed account of Locke’s discourse on property see Tully J, A discourse on property: John Locke and his adversaries, Cambridge University Press, Cambridge, 1980. 52 Locke, Second treatise of government, Ch 5, para 26. This explains why the state in exercising its eminent domain powers of compulsory acquisition of land is required to pay prompt, just and adequate 47

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only be claimed once they have mixed their labour with the thing. According to Locke, once one stops investing their labour in the thing, private property rights dissipate and the property reverts back to the entire society, to hold in common. Locke explains that: God has given us all things richly…But how far has he given it us? To enjoy. As much as anyone can make use of any advantage in life before it spoils; so much may be by his labour fix a property in. Whatever is beyond this is more than his share, and belongs to others.53

Hence, property owners have a duty to put property to its maximum efficient use, and if not, to ensure its efficient distribution among persons. From the above discussions, it is clear the under the natural theory, property not only serves economic functions but also has a social role in ensuring the redistribution of societal benefits among the members of the community. Aristotle argues that the right to property is inherent in the moral order. While criticising Plato’s preference for common property, Aristotle posits that ‘[T]hat which is common to the greatest number has the least care bestowed upon it. Everyone thinks chiefly of his own, hardly at all of the common interest; and only when he is himself concerned as an individual.’54 Moreover, Aristotle argues that the incentive for private property is a result of a self-love implanted by nature, such that it is only private property that can encourage the virtue of liberality.55 On property, Saint Thomas Aquinas observes that it is natural for human beings to possess external things56 and lawful for a person to possess a thing as their own.57 Theft and robbery are sins and morally wrong as they involve the taking of another’s property secretly.58 However, he postulates further that it may be lawful to steal because of need since ‘in cases of need all things are common property.’59 Talking about the limits of private property and fixing its boundaries through labour, Pope Leo XIII, in his encyclical Rerum Novarum argues as follows:

compensation to the private owner. See Article 24,Constitution of Kenya(2010). Locke, Second treatise of government, para 31. 54 Aristotle, The politics, Everson S (ed), Cambridge University Press, Cambridge, 1988, 25-29; see also Plato, Republic 5, Halliwell S (trans and ed), Aris & Philips, Warminster, 1993, 7-9. 55 Bell and Parchomovsky, ‘A theory of property’. 56 Aquinas T, Summa theologica, Benzinger Brothers, New York, II-II, q 66, a 1. 57 Aquinas, Summa theologica, II-II, q 66, a 2. 58 Aquinas, Summa theologica, II-II, q 66, a 3. 59 Aquinas, Summa theologica, II-II, q 66, a 7. 53

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‘The fact that God has given the earth for the use and enjoyment of the whole human race can in no way be a bar to the owning of private property. For God has granted the earth to mankind in general, not in the sense that all without distinction can deal with it as they like, but rather that no part of it was assigned to anyone in particular, and that the limits of private possession have been left to be fixed by one man’s own industry...’60

Andrew Galambos states that property is a person’s life and all the non-procreative derivatives of their life, and categorises property into three: primordial, primary and secondary property. Primordial property refers to an individual’s life. The ideas, thoughts and actions of an individual are primary property, while secondary property refers to all the tangible and intangible possessions derived from an individual’s primary property.61 Robert Nozick justifies private property on the basis that there are certain things that intrinsically belong to certain individuals, and that existing institutions must respect those property rights irrespective of whether or not they serve any broader social ends. Nozick argues that things come into the world, ‘already attached to people having entitlements over them.’62 Nozick used the example of body parts to justify property, arguing that you do not need a social justification for the rule that your body parts belong to you. It is, however, doubtful whether Nozick’s theory can be extended to land or other external objects.63 The natural law justification of property rights has been used to vigorously defend the right to property in many jurisdictions and has formed one of the bases of both the French and American Revolutions. Article II of the French Declaration of 1791, which followed the French Revolution, holds that: The need of all political associations, is the preservation of the natural and imprescriptible rights of man; and these rights are liberty, property, security, and resistance of oppression.64

The Fifth Amendment to the Constitution of the United States of America also echoes this position by stating that ‘no person…shall be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.’65 A natural right and human rights approach to property is evident in the Constitution of Kenya 2010. Article 40 of the Constitution 62 63

As quoted in Dietze G, In defense of property, The John Hopkins Press, Baltimore, 1971, 70. Andrew G,Sic itur ad astra, The Universal Scientific Publications Company, California, 1999, 92. Nozick R, Anarchy, state and utopia, Basic Books, New York, 1974, 160. Waldron J, ‘Property law’ in Patterson D (ed), A companion to philosophy of law and legal theory, 2 ed, Blackwell Publishing, Oxford, 2010, 17. 64 Quoted in Ryan A, Property, Open University Press, Milton Keynes, 1987, 61. 65 See Finer SE, Five constitutions, Penguin Books, Harmondsworth, 1979, 106. 60

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guarantees every Kenyan the right to property. However, the right to property does not make proprietary rights inviolable and absolute.66 As such, although natural law theorists postulate a right to property, there is always a social mortgage on all private property, so that property can serve the general purpose intended by God.67

2.3 The labour theory According to this theory, property is a natural right and people enter into society to preserve property.68 John Locke, the main proponent of this theory, argued that in the state of nature, the earth stood open to all human beings. Consequently, one could acquire the right to property in his own person and in that which he wrought with his hands. Locke further stated that property rights were natural rights inherent in individuals and could not be taken away by government without the consent of the individual.69 The labour theory assumes a world in a state of nature without private property rights. In the state of nature, God grants property to individuals in common and these property rights are enjoyable by all. In order for a person to acquire private rights over these common resources, the labour theory suggests that these persons ought to expend their labour on the thing. Locke therefore concludes that: As much land as a man tills, plants, improves, cultivates, and can use the product of, so much is his property. He by his labour does, as it were, enclose it from the common.70

A fisherman acquires property rights in the fish he catches because he caught it by applying his labour, baiting the hook, waiting patiently and reeling in the fish. Similarly, a sculptor is the owner of the vessels he moulds from clay because he has utilised his labour to convert unowned clay into valuable vessels. Likewise, for a farmer who cultivates the land, plants, waters the seed and harvests the final See generally the limits put on private property in Article 40, Constitution of Kenya(2010) read together with Article 24. Further, see Article 66(1) which provides that, ‘The State may regulate the use of any 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 use planning.’ See also Article 65(1) thereof which states that, ‘A person who is not a citizen may hold land on the basis of leasehold tenure only, and any such lease, however granted, shall not exceed ninety-nine years.’ 67 Pope John Paul II, Address to indigenous and rural people, Cuilapán, Mexico (29 January 1979), 6: AAS 71 (1979), 209. 68 Locke, Second treatise of government, para 124. 69 See Tully, A discourse on property, 116. 70 Tully, A discourse on property, 119. 66

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produce. The resultant property rights in the above examples are a result of natural justice because they mixed their labour with raw materials (at times unowned), and not simply because they were first in time.71 The rights of the farmer, the sculptor and the fisherman are to be vigorously guarded. The actions of these three persons vest in them certain rights over the products of their labour. The rights over the product of the labour of these persons are acquired through the natural, moral and rational conduct of the individuals; the state is only concerned with the protection of these rights.72 Private property so to speak, did not arise through the prescriptive law of the state. It is God and not a sovereign that gave property.73 The theory proceeds in four basic steps. First, it assumes that every person owns his body. Consequently, each person owns the labour that his body performs. And therefore, if a person labours to change something in nature for his benefit, he ‘mixes’ his labour with the thing; and lastly by this mixing process, one acquires rights in the thing.74 In noting the contribution that one’s labour has towards the acquisition of property, Adam Smith in his famous quote in the Wealth of Nations notes that: It is not from the benevolence of the butcher, the brewer or the baker that we expect our dinner, but from their regard of their own interest. We address ourselves not to their humanity, but their self-love, and never talk to them of our necessities, but of their advantage.75

Therefore, humankind is always concerned with self-interest. One extends labour over something so as to reap some benefits which can take the form of rights over something. Accordingly, that with which one mixes his labour becomes his own including the portion of soil reclaimed by occupation and tillage.76 The first labourer deserves the benefit of his or her efforts because the modified asset embodies his labour. It is the labourer’s labour that improves and accounts for most of an asset’s value. For example, a person who applies labour to another’s property acquires title to the

73 74 75

Sprankling, Understanding property law, 15. Panesar, ‘Theories of private property in modern property law’, 124. Panesar, ‘Theories of private property in modern property law’, 124. Sprankling, Understanding property law, 15. Smith A, An inquiry into the nature and causes of the wealth of nations, Methuen & Co, London, 1776, 18. 76 Hobhouse LT, ‘The historical evolution of property, in fact and in idea’ in Gore C (ed), Property: Its duties and rights, Clarendon Press, Oxford, 1913, 26. 71 72

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property if the labour increases the value of the original property.77 Other instances where the theory is applied is in justifying the doctrine of adverse possession78 and intellectual property rights.79 Critics of the theory observe that it leaves some questions unanswered. ‘How much private property can an individual acquire under the Lockean theory? How much labour need one expend before he or she becomes entitled to the thing and does labour have to reflect the value added to the resource in question?’80 Locke only addressed the first question in his theory. According to Locke, if the labourer does not use resources, then despite his labour, those resources do not belong to him but become common again.81 He writes thus, God has given us all things richly… But how far has he given it us? To enjoy. As much as anyone can make use of any advantage in life before it spoils; so much may be by his labour fix a property in. Whatever is beyond this is more than his share, and belongs to others.82

Locke also supports accumulation of private property when he explains that, ‘...there could be no reason for quareling about Title, nor about the largeness of Possession it gave. Right and conveniency went together; for as a Man had a right to all he could employ his Labour upon, so he had no temptation to labour for more than he could make use of.’83

Regarding the second question, it suggested that the theory should only permit a person to receive the value that his or her labour adds to a thing, and not the thing itself. Because the labour theory appears to rest on ‘desert’ it honours only first labour, and not subsequent or all labour.84 For example, if John owns a parcel of land where he grows maize and employs Mary to work on the land, even though Mary mixes her labour with the land, she cannot acquire ownership of the land, as it is already owned by John. Mary’s property rights extend only in so far as she has See the cases of Pettit v Pettit [1969] UKHL 5 and Gissing v Gissing [1971] AC 886, the case shows that labour that improves the value of property owned by the other spouse can result in recognisable matrimonial property rights in the property. See also Section 9, Matrimonial Property Act (Act No. 49 of 2013) which recognises acquisition of interest in matrimonial property by contribution which increases its value. See also Section 93(2), Land Registration Act (Chapter 300, Laws of Kenya). 78 Section 9, Limitation of Actions Act (Chapter 22, Laws of Kenya). 79 Section 30(1), Industrial Property Act (Chapter 509, Laws of Kenya) and Section 22(3), Copyright Act (Chapter 130, Laws of Kenya). 80 Panesar, ‘Theories of private property in modern property law’, 125. 81 Panesar, ‘Theories of private property in modern property law’, 126. 82 Locke, Second treatise of government, para 31. 83 Locke, Second treatise of government, para 51. 84 Sprankling, Understanding property law, 16. See also Nozick, Anarchy, state and utopia, 175. 77

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added value to John’s land. Moreover, the theory assumes abundant supply of land and other natural resources that are unowned. This is not true as these resources are anything but infinite. In addition, very few resources are unowned today.

2.4 The legal theory Under the legal theory, law takes precedence in defining what property is.85 Property is that which the law considers and recognises as property.86 Under the theory, property is a child of the law and law plays a key role in the defence of property rights vested on persons. Jeremy Bentham, a staunch critic of natural law, totally rejects the natural law propositions on law, including the law of property. Bentham writes that natural rights are, ‘…simple nonsense: natural and imprescriptible rights, rhetorical nonsense, nonsense upon stilts.’87 To Bentham, rights emanate from the law prescribed by the state. Consequently, he concludes that: Property and law are born together, and die together. Before laws were made there was no property; take away laws and property ceases.88

It is law that gives one a sense of security which capacitates and enables him to acquire a thing and keep it as his own. In this regard, Bentham argues thus: The idea of property consists in an established expectation; in the persuasion of being able to draw such or such an advantage from the thing possessed, according to the nature of the case. Now this expectation, this persuasion, can only be the work of the law. I cannot count upon the enjoyment of that which I regard as mine, except through the promise of the law which guarantees it to me.89

Therefore, law gives people some security, some expectation and hope that there will be legal sanctions to protect their property and, where such sanctions

In Kenya, for instance, ‘property’ includes any vested or contingent right to, or interest in or arising from: land, or permanent fixtures on, or improvements to, land; goods or personal property; intellectual property; or money, choses in action or negotiable instruments, Article 260, Constitution of Kenya(2010). 86 See Cohen M and Cohen F, Readings in jurisprudence and legal philosophy, vol 2, Beard Books, Maryland, 2002, 817. 87 Bentham J, ‘Anarchical Fallacies’ in Waldron J (ed) Nonsense upon stilts: Bentham, Burke and Marx, on the rights of man, Methuen, London, 1987, 53. 88 Bentham J, The theory of legislation, Oceana Publications, New York, 1975, 69. 89 Bentham J, ‘Principles of the civil code’ in Macpherson CB (ed), Property: Mainstream and critical positions, University of Toronto Press, Toronto, 1978, 54. 85

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are lacking, this security is non-existent.90 Property, according to legal theorists, represents a legal relationship that a person may have in relation to a thing or even an intangible subject such as an idea.91 Law therefore serves the function of regulating property relations that exist within a particular society. The relationships that law espouses could relate to a thing (res) or any other subject of ownership. Law also provides property owners with mechanisms for enforcing their property rights. Because proprietary claims are backed by law, owners know what to expect from the law. In addition, limits are also put on others in society who may have claims to the property.92 As discussed in Chapter One, property can be conceptualised as a bundle of rights (sticks) and expectations in a thing that are enforceable against third parties including the government.93 The bundle therefore consists of several entitlements that persons may have and the law is brought in to ensure maximum protection of the ‘sticks’ that an individual may have.

2.5 The social utility theory Under the social utility theory, private property rights are granted, since doing so benefits the social welfare.94 Society recognises that the vesting of property rights on individuals not only benefits the individual but has wider benefits to the entire society. Land as an example of property can benefit society in multiple ways. It may generate utilities of occupancy, enjoyment, consumption, investment, exploitation, exchange, endowment, aesthetic appreciation, and so on.95 Private holders of property are therefore perceived to have responsibilities towards other persons in the society. A number of regulatory mechanisms are also devised to ensure that each property owner plays a role in ensuring that the property

94 95 92 93

In relation to land, which is a common form of property in Kenya, the law contains numerous provisions guaranteeing security of land rights; see generally, Articles 40, 60, 61, 62, 63, 64 and 65, Constitution of Kenya(2010). See also the Land Act (Chapter 280, Laws of Kenya) and Land Registration Act (Chapter 300, Laws of Kenya). Kameri-Mbote P, Odote C, Musembi C and Kamande M, Ours by right: Law, politics and realities of community property in Kenya, Strathmore University Press, Nairobi, 2013, 29. Kameri-Mbote, Odote, Musembi and Kamande, Ours by right, 29. Kameri-Mbote, Odote, Musembi and Kamande, Ours by right, 30. Lastowka G and Hunter D, ‘The laws of the virtual world’ 92 California Law Review, 1 (2004), 3-17. Gray and Gray, ‘The idea of property in land’, 15-51.

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they hold serves the social welfare.96 Public interest is therefore a key consideration which all the holders of property must observe. In this regard, property is considered to be no more than a defeasible privilege for the citizen.97 In the case of land, for example, the vesting of rights to a person is meant to ensure that there is optimal exploitation of the resource for the benefit of all the members of the community. This conception of property is a departure from the consideration of property as the despotic dominion that one has over a thing. Instead, property expresses the commonality of obligation capable of being curtailed on all sides by a sense of civic responsibility.98 Restraints which curtail the enjoyment of property rights must be in the public interest. The claim to property rights by persons is therefore immensely fragile and is aimed at ensuring that individuals utilise property efficiently and sustainably.

2.6 Personhood theory of property Property is regarded as one of the external things that are good and necessary for the full expression of personality and individual development.99 It is an instrument of personality. Certain forms of property, such as a wedding ring, are regarded as being so closely connected to a person’s emotional and psychological well-being that they virtually become part of that person.100 To achieve proper selfdevelopment, to be a person, an individual needs some control over resources in the external environment. In this vein Lobhouse notes that: ‘...material things that a man can count upon as his own, that he can leave and return to, that he can use at his will, are, we have admitted, the basis of a purposeful life, and therefore of a rational and harmonious development of personality.’101

Similarly, Hegel argues that a person’s substantive end is the right to put his will into a thing and making it his own.102 Likewise, Margaret Radin observes that most people ‘possess certain objects they feel are almost part of themselves,’ and Gray and Gray, ‘The idea of property in land’, 20. See generally, Articles 40(3), 42 and 66, Constitution of Kenya(2010). There are also several laws in Kenya which regulate property use which are discussed in the chapter dealing with land use. 97 Gray and Gray, ‘The idea of property in land’, 20. 98 Gray and Gray, ‘The idea of property in land’, 20. 99 Hobhouse, ‘The historical evolution of property, in fact and in idea’, 28. 100 Singer J, ‘The reliance interest in property’ 40 Stanford Law Review (1988), 614. 101 Hobhouse, ‘The historical evolution of property, in fact and in idea’. 102 Hegel GWF, The philosophy of right, Knox T (ed), Oxford University Press, London, 1952, 23. 96

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that are ‘closely bound up with personhood because they are part of the way we constitute ourselves as continuing personal entities in the world.’103 In essence, property allows the human will to develop and thrive. Property bestows on people the capacity to demonstrate individuality and full self-expression.104 However, the desire to acquire more property may foster traits of greed, avarice and selfishness due to over-emphasis on the individual rather than on group or collective good.105 Personality theory of property also tends to undermine the social system, as property required for development of personality may not be accessible to the whole society. A society adopting the Hegelian conception of property may therefore be reluctant to accept the distribution of wealth. Many scholars hold the view that property should only be justified by its tendency to promote the public good. Another criticism against personhood theory is that it explains the existence of private property rights only in those ‘things’ that are central to personhood. It does not justify the existence of what Radin calls ‘fungible property,’ that is rights in property forms such as money, stocks, bonds, commercial real estate and other things less connected to personhood.106 Also like utilitarianism, the personhood theory offers little guidance on the allocation or definition of property rights. According to Radin, when a property right is personal, a prima facie case exists that it should be protected to some extent against conflicting fungible property rights held by others.107 Compare the example of a tenant A of an apartment owned by B. If B wants to sell the land to another person who will develop it and create more employment, can A claim the apartment is personhood property and that he is entitled to stay there as long as he complies with the lease terms? To what extent can personhood interests override fungible interests?

2.7 Utilitarianism-traditional theory Utilitarianists view property as a positive right created by law to achieve wider social and economic goals.108 Property is seen as a means to an end. Property, es Radin M, ‘Property and personhood’ 34 Stanford Law Review (1982), 957-959. Radin, ‘Property and personhood’, 957-959. 105 See Rousseau JJ, ‘A dissertation on the origin and foundation of the inequality of mankind and is it authorised by natural law?’ Cole GDH (trans), (2009) https://www.marxists.org/reference/subject/economics/rousseau/inequality/ on 6 April 2016. 106 Sprankling, Understanding property law, 21. 107 Sprankling, Understanding property law, 21. 108 Panesar, ‘Theories of private property in modern property law’, 132-136. 103 104

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pecially private property, exists so as to maximise the overall happiness or ‘utility’ of all citizens. Accordingly, property rights are allocated and defined in a way that best promotes the general social welfare.109 Jeremy Bentham, a key proponent of the utilitarian school of thought, avers that property as a human invention does not stem from morality or natural justice. To Bentham, property rights are recognised by law and limited by law to serve human values.110 Consequently, he argues that property and law are born together and die together, and that without law there can be no property.111 For Bentham, the role of the legislator drafting a property law framework is to do ‘what is essential to the happiness of society; when he disturbs it, he always produces a proportionate sum of evil.’112 When society recognises property rights in land or radio spectrum, this produces public benefits. For instance, without property rights a landowner cannot stop trespassers getting into his land and removing his maize crop. In this context, property rights provide the landowner with the requisite investment security to grow maize that feeds the whole nation. In addition, the farmer also derives personal gratification and pleasure from owning and farming his land.113 Because Bentham could not understand how natural law could provide such guarantees, he launched one of the most scathing attacks on natural rights theories by asserting that: Right... is the child of law; from real laws come real rights; from imaginary laws, from laws of nature, fancied and invented by poets, rhetoricians, and dealers in moral and intellectual poisons, come imaginary rights, a bastard brood of monsters.... Natural rights is simple nonsense: natural and imprescriptible rights, rhetorical non-sense-nonsense upon stilts.114

Criticism against the utilitarian theory is premised on its assertion that property is a means to an end, happiness. They charge the theory as being meaningless because it is impossible to measure happiness. Are love, wealth, respect, intelligence, leisure time, dignity, self-esteem, health, et cetera the appropriate yardsticks? Property laws can bring injustice to some groups while bringing more wealth to others. Similarly, it is possible for a law to increase the dignity, but impair the health, of all citizens.115 Therefore, a utilitarian defense of private property is in trouble unless

111 112 113 114

Sprankling, Understanding property law, 16. Bentham, ‘Principles of the civil code’, 52. Bentham, The theory of legislation, 69. Bentham, The theory of legislation, 69. Sprankling, Understanding property law, 17. Bentham J, ‘Anarchical fallacies’ in Bentham J, The works of Jeremy Bentham, Bowring J (ed), William Tait, Edinburgh, 1983, 489, 501, 523. 115 Sprankling, Understanding property law, 17. 109 110

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it can show that everyone is better off, or at least that no one is worse off.116 However, utilitarianism supports the view that property rights are not cast in stone but are subject to change, such that if property is merely a tool to be used to engineer maximum human happiness, then changing social, economic, and political conditions may require that property rights be reallocated or redefined.117

2.8 Economic theory of property Some have posited that the concept of property had its origins in the rights and claims nurtured in the economic sector.118 This view takes an economic perspective in examining the origins of property rights. An economic justification of property incorporates economic principles into utilitarianism. Unlike utilitarianism, which defines human happiness in vague terms, an economic view assumes that happiness may be measured in monetary terms. Private property therefore exists to maximise the overall wealth of society.119 According to Richard Posner property refers to ‘rights to the exclusive use of valuable resources.’120 In this sense, an efficient allocation of resources is one in which ‘value’, defined as an individual’s willingness to pay, is maximised. Value is maximised if a resource is allocated to the person who is willing to pay for the particular resource. Efficient allocation can only be achieved in a truly free market in goods and services. Consequently, the role of property law is to foster voluntary commercial transactions among parties.121 Allocation of resources remains a central focus of the proponents of this theory. To many theorists, problems arising in the use of resources are usually largely attributable to the fact that resources are put to inefficient use and so do not ensure sustainable utilisation.122 Such is particularly evident in cases where property rights to a thing are not specifically vested in a given person. In order to curb these inefficiencies, it is important to adopt privatisation of these rights. The propositions for Waldron, ‘Property law’, 18. Sprankling, Understanding property law, 17. 118 Ojwang JB, Laying a basis for rights: Towards a jurisprudence of development, Nairobi University Press, Nairobi, 1992. 119 Sprankling, Understanding property law, 18. 120 Posner R, Economic analysis of law, 6 ed, Aspen Publishers, New York, 2003, 31. 121 Posner, Economic analysis of law, 6 ed, 31. 122 See Sedjo RA and Simpson RD, ‘Property rights, externalities and biodiversity’ in Swanson TM (ed), The economics and ecology of biodiversity decline: The force driving global change, Cambridge University Press, Cambridge, 1995, 79-86. 116 117

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privatisation are hinged on arguments on the bargaining power of individuals and also on the externalities associated with land holding.123A private scheme of ownership is considered to be much better because it internalises, ‘…many of the external costs associated with communal ownership, for now an owner, by virtue of his power to exclude others, can generally count on realizing the rewards associated with husbanding the game and increasing the fertility of his land. The concentration of benefits and costs on owners creates incentives to utilize resources more efficiently.’124

Posner asserts that the world is filled with economically-rational actors, all constantly seeking to maximise their self-interests, necessitating an efficient property system to facilitate free market exchange and efficient allocation of resources.125 Such a property system requires three attributes. First, it must be universal meaning that all property must be owned by someone. Second, it must have exclusivity meaning that the owner of property has a right to exclude all others from using it. And, thirdly it must allow transferability meaning that property rights must be transferred freely and easily so that a resource can be devoted to the most highlyvalued use.126 However, even if these elements are present in a property system, the free exchange of property rights may still be impaired by transaction costs.127 Such costs include the costs of investigating a potential purchase, negotiating a purchase contract, policing and enforcement costs or dealing with the free rider, a group member who receives benefits but refuses to pay. Without property rights, there are no incentives to incur transaction costs due to lack of assured reward for incurring those costs.128 According to the Coase Theorem, property will eventually be devoted to its highest value use, regardless of how property rights are initially allocated, if no transaction costs exist.129 A person who has internalised the costs associated with these holdings is also in a better position to effectively bargain and move a resource 125 126

Demsetz H, ‘Towards a theory of property rights’ 57 American Economic Review, 2 (1967), 356. Demsetz, ‘Towards a theory of property rights’, 356. Posner, Economic analysis of law, 6 ed, 31. Butler H, Drahozal C and Shepherd J, Economic analysis for lawyers, 3 ed, Carolina Academic Press, Durham, 2014, 18-19. 127 Costs that affect the allocation of property rights are called transaction costs. These are the costs of acquiring information about alternative uses and of negotiating and enforcing contracts. Generally, if the potential benefits of a transaction are greater than the costs of reaching and enforcing a bargain, then a voluntary, mutually-beneficial exchange will result in the property rights being controlled by the parties that value them most, see Butler, Drahozal and Shepherd, Economic analysis for lawyers. 128 Posner R, Economic analysis of law, 7 ed, Aspen Publishers, New York, 2007, § 3.1. 129 Coase RH, ‘The problem of social cost’ 3 Journal of Law and Economics (1960), 1. 123 124

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from a less valuable use to a more valuable use. Where such occur, a cooperative surplus is created. A cooperative surplus is regarded to be the value created by moving the resource to a more valuable use.130 Sprankling illustrates how property law can incentivise a farmer to grow his crops despite concerns that strangers may appropriate his harvest or that he might fall ill and be unable to tend the crop. Using the three elements of an efficient property system, he says that property law provides the incentives as follows. First, property law recognises the land rights of the farmer. Second, the law defines the farmer’s rights so that he has exclusive right to the use and enjoyment of his land, including the crops he grows. Third, the law allows the farmer to freely transfer his rights in his land to others, so that illness or other calamity does not impair his crop production.131 Criticism levelled against the theory is the assumption that social utility or value is appropriately measured by willingness to pay, yet not all human desires or satisfactions can be quantified in monetary terms. Certain human needs such as love, dignity, self-esteem, respect and honour carry no price tag. It is also contended that even if human happiness can be measured in monetary terms the ‘willingness to pay’ yardstick is still fundamentally flawed, due to the unequal distribution of wealth in society. Value in society is maximised in favour of the rich who have the ability to pay for goods and services. Consequently, the theory promotes private property rights and capitalist economy and thus perpetuates existing unequal distribution of wealth.132 Adam Smith explains how private property can perpetuate inequality by positing that: Wherever there is great property, there is great inequality … Civil government, so far as it is instituted for the security of property, is in reality instituted for the defence of the rich against the poor, or of those who have some property against those who have none at all.133

Critics also argue that the economic theory based on efficiency and economics lacks persuasion as it fails to prove that it produces better results than other theories. In addition, the economic theory relies on the belief that most people are rational wealth maximisers at heart. Moreover, applying the theory may lead to a situation where too much private ownership may impede economic development, for example, if all roads were privatised. 132 133 130 131

Coase, ‘The problem of social cost’. Sprankling, Understanding property law, 19. Sprankling, Understanding property law, 19. Smith, An inquiry into the nature and causes of the wealth of nations.

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2.9 Libertarian theory of property The libertarian theory argues that the ownership of private property is necessary for democratic self-government.134 The theory is premised on the belief that individual freedom is of necessity in order for individuals to be able to exercise their will freely. Property rights provide citizens with economic security that allows them to make independent political judgment. Using this thinking, Thomas Jefferson is said to have advocated the distribution of federally owned public lands to landless citizens so as to have a nation of yeoman farmers, virtuous and independent enough to pursue the public good.135 Gottfried Dietze postulates that property is the basis of various liberal rights and freedoms. He illustrates this when he notes that: Property is intimately related to life and freedom. It is a prerequisite of the freedom to be and to act. It is as old as life and freedom, and also as important. Property rights are thus indistinguishable from such rights as freedom of religion, of speech, of the press, of assembly and association, freedom from arbitrary arrest, and so forth. For these rights were not present at the beginning of life… while men may have been aware of the value of these (latter) rights at a primitive stage of their development, they did not consider them as immediate necessities for their existence.136

Libertarians have thus always sought to ensure the protection of the rights of persons to own property as, according to their understanding, these rights were there even before the coming of the state.137 These theorists advocate a system where property civil liberties are recognised and respected with a limited government under the rule of law and belief in laissez-faire economic policy. This theory has also been used as a disincentive to state intervention in other areas like the adoption of welfare systems by governments. Using the libertarian theory, it has been argued that it is morally wrong for the state to take money from one person to whom it belongs in order to give it to a person to whom it does not belong.138 All these arguments operate on the footing that state intervention in certain matters is uncalled for and individuals are not considered to be free as long as this Alexander G, ‘Time and property in the American republican legal culture,’ 66 New York University Law Review (1991), 273. 135 Katz S, ‘Thomas Jefferson and the right to property in revolutionary America’ 19 Journal of Law and Economics, 3 (1976), 467. 136 Dietze, In defense of property, 49. 137 Boaz D, Libertarianism: A primer, Free Press, New York, 1997. 138 Richman S, Tethered citizens: Time to repeal the welfare state, The Future of Freedom Foundation, Virginia, 2001. 134

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intrusive nature of the state persists. Scholars critique this theory by questioning the original assumption that property ownership is essential for political freedom. It is argued that even the poorest citizens with less or no property have the political courage to agitate for the common good.139

2.10 Socialist and communist theories on property Inequality in the distribution of property mostly in the 18th century resulted in the dissatisfaction of many who viewed existing social relations (including existing property regimes) as systemically unfair.140 As a result, social revolutions took place like the American and the French Revolutions,141 pitting peasants against the owners of the means of production (landed gentry). It is at this time that socialism and communism as philosophical theories arose to facilitate equal distribution of resources among individuals. The principle behind the socialist and communist theories of property is, inter alia, that ‘all things are equally the objects of enjoyment, without payment made or service rendered.’142 To the socialist, ‘property is not common to all, but is held in common for all by public entities, and its assignment or apportionment is a matter of collective regulation.’143 There is enjoyment without a correlative performance of function. The problem with the socialist theory has always been to consider how collective regulation is to be accommodated to the free initiative and enterprise of the individual, and whether this problem is capable of solution. Communists are against private property since, they argue, it leads to social classes, rich and poor, owners and non-owners, bourgeoisie and proletariat. They advocate the abolition of private property rights, a classless and stateless society and the collective ownership of all property (with user rights only as opposed to ownership) where each person contributes and receives according to their ability and needs.144 They argue that the society should take control of the ‘means of pro-

Sprankling, Understanding property law, 20. See H, Economic and social conditions in France during the eighteenth century, Zeydel EH (trans), Batoche Books, Kitchener, 2004. 141 Freeman MDA, Lloyd’s introduction to jurisprudence, 9ed, Sweet & Maxwell, London, 2014, 956-957. 142 Hobhouse L, Liberalism and other writings, Meadowcroft J (ed), Cambridge University Press, Cambridge, 1994, 196. 143 Hobhouse, Liberalism and other writings, 196. 144 Freeman, Lloyd’s introduction to jurisprudence, 956-958. 139 140

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duction’145 which conditions the social, political and intellectual life processes in general.146 Therefore, most communist scholars would argue that law is shaped by economic relations (explaining why some argue that law serves the interest of the owners of the means of production), some also say that law helps in forging changes in the economy.147 These communist views of law, and property law in particular, are useful in analysing state laws that confer strong protection to property rights no matter how those rights have been acquired. To them, the means of production should be collectively owned by the public, to ensure that everyone gets the goods they desire. Since society decides what is produced, all that is produced is collectively owned by society. The idea of private ownership of means of production like land is thus inimical to communists, as it leads to wealth accumulation, social hierarchy of class, status and power.148 It is worth noting that there are various strands of the socialist and communist theories whose discussion is beyond the scope of this work.

Freeman, Lloyd’s introduction to jurisprudence, 956-958. According to Karl Marx, there are two factors in production-the ‘productive forces’, the instruments of production including labour, implements, knowledge and skills of those who produce, and the ‘productive relations’ between men. These factors play a key role in the production of goods in society. Communists argue that in a capitalist society, the ‘means of production’ are held by the bourgeoisie, enabling them to exploit workers in their wealth accumulation leading to social classes. See Engels F, The origin of the family, private property and the state, Resistance Books, Chippendale, 2004, 23. 146 Freeman, Lloyd’s introduction to jurisprudence, 958. 147 Freeman, Lloyd’s introduction to jurisprudence, 958-963. 148 Engels, The origin of the family, private property and the state, 23-26. Engels explains that private property leads to ‘…differences in wealth, the possibility of utilising the labour power of others, and thereby the basis of class antagonisms: new social elements, which strive in the course of generations to adapt the old structure of society to the new conditions, until, finally, the incompatibility of the two leads to a complete revolution.’ 145

Chapter Three

AN AFRICAN VIEW OF PROPERTY

3.0 Introduction Is there an African view or understanding of property? Or is Africa merely an appendage of the Euro-American worldview in conceptualising property?1 Critics have frowned upon the idea that Africa ever had a philosophy.2 They have argued that an African explanation to social phenomena does not exist, least of all in the field of property.3 Georg Wilhelm Friedrich Hegel, for example, ‘constructed a philosophy of history which excludes Africa from the scheme of things.’4 He did not include Africa in his cultures or civilizations. To him, ‘Africa…is unhistorical; undeveloped spirit - still involved in the conditions of mere nature; devoid of morality, religions and political constitution.’5 He took this as a justification for the enslavement and colonization of Africa by Europe with the intention that such would increase the ‘human feeling among the Negroes.’6 He viewed Africa south of the Sahara, ‘Africa proper’, as ‘the land of childhood, which, lying beyond the day

Ojwang J, Laying a basis for rights: Towards a jurisprudence of development, Nairobi University Press, Nairobi, 1992. See Gratton PM, ‘What’s in a name? African philosophy in the making’ 6 Philosophia Africana, 2 (2003), 61-80. Wa Thiong’o N, Decolonising the mind: The politics of language in African literature, Heinemann, Nairobi, 1986. Adegbindin O, ‘Critical notes on Hegel’s treatment of Africa’ 11 OGIRISI: A New Journal of African Studies (2015), 19. Adegbindin, ‘Critical notes on Hegel’s treatment of Africa’, 20. See also, Kuykendall R, ‘Hegel and Africa: An evaluation of the treatment of Africa in the philosophy of history’ 23 Journal of Black Studies, 4 (1993), 572. Adegbindin, ‘Critical notes on Hegel’s treatment of Africa’, 20.

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of self-conscious history, is enveloped in the dark mantel of Night.’7 The African, in his view, is ‘natural man in his completely wild and untamed state.’8 Apart from such views of Africa and Africans, the imposition of foreign worldviews (including culture and laws) on the African continent has suppressed African explanations of social phenomena.9 As seen in other parts of this book, this has been the case in property relations. In this chapter, it is argued, that Africa has its unique philosophy to property that differs from the Anglo-American view of property. Although this is a broad generalisation, in light of the diverse tribal, cultural and religious variances amongst African peoples, there are certain distinctive and innate characteristics, values and aesthetics10 common among African communities that lead to this conclusion.11 It is this similarity, the ‘sameness of spirit and intention’, of customs, culture and religious beliefs amongst African peoples, that justifies the examination of an ‘African’ idea of property. However, the chapter notes that even with the popularisation of western models of property holding in the 19th and 20th centuries, African conceptions of property have refused to ‘die’. The chapter begins by discussing the African commons, distilling its key characteristics. The African idea of property is then explained as being more than the physical solum but as a transgenerational asset. Thereafter, the chapter examines how spirituality and cultural milieu in Africa affects property relations. An assessment of a human rights framework in theorising property relations in Africa is then offered, including its shortcomings. The chapter also looks into the adjudicative infrastructure that resolves disputes touching on property within the African commons. The chapter concludes by debunking major fallacies and falsehoods that have been peddled against an African philosophy of property.

Hegel GWF, The philosophy of history, Clarke JH, (trans), Dover Publications, New York, 1956, 91. Hegel, The philosophy of history, 93. This is the case especially with property relations, as will be seen in other parts of this book. 10 See Senghor LS, ‘To New York’, in Dixon M (trans), The collected poems, The University of Virginia Press, Charlottesville, 1998. 11 Writing about African spirituality, Laurenti Magesa notes that although there are different expressions of religious belief, ‘there exists an underlying basic similarity or sameness of spirit and intention in the different cultural-religious expressions in Africa and among Africans.’ The same similarity and sameness of spirit and intention can be said to exist in the area of property ownership. See Magesa L, What is not sacred? African spirituality, Acton Publishers, Nairobi, 2014, 3-10. See also Bujo B, The ethical dimension of community: The African model and the dialogue between north and south, Paulines Publications Africa, Nairobi, 1997, where he attempts to generalize the African situation, to question whether there is an ‘African ethic.’ 7 8

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3.1 Property as a commons Before the advent of colonialism, ‘property’ was held communally.12 ‘Property’ or communally owned resources included land, forests, salt-licks, mineral springs, ancestral shrines, wells, rivers and knowledge passed on from one generation to the other.13 In most African communities, most of the natural resources were considered as bequests to human beings by a supreme being (God) to be used and held for the benefit of the past, present and future generations.14 However, there are several other ways in which property could be acquired, such as through economic activities (farming, herding, hunting and gathering, fishing, et cetera) inheritance, through marriages and intermarriages (the payment of dowry often involved exchange of property), raids, conquests over new territories and gifts.15 Based on communal ownership of resources, individuals would be accorded exclusive user rights over given resources.16 There were also certain areas that were considered public spaces, thus meant to serve community interests17 such as common pathways, watering points, shrines, grazing fields and recreational grounds. User rights could not be granted to a particular individual to the detriment of the community.18 Public spaces were held in trust for the whole community by the traditional leadership and were utilised in accordance with shared community values.

Magesa, What is not sacred? 3-10. See also Mbiti J, Introduction to African religion, Praeger, New York, 1975, 176. 13 Republic of Kenya, Report of the Commission of inquiry into the illegal/irregular allocation of public land, 2004. Amongst communities such as the San, oral narratives have been used to highlight the principles undergirding property management and holding. For example, stories have been told of conflicts between iconic animals (hyenas, jackals and lions) and their fights over food. Some of these stories emphasise the importance of sharing in holding property by reporting mischief that happen to animals if in their quest for food others are excluded or get killed. See generally, Vermeylen S, ‘Law as a narrative: Legal pluralism and resisting Euro-American (intellectual) property law through stories’ 61 Journal of Legal Pluralism (2010), 55. Similarly, the use of oral narratives to establish historical rights to territory by indigenous peoples such as the Witsuwit’en has been recognised. See Delgamuukw v British Colombia (1991) 79 (DLR) (4th) 185 (BCSC). 14 Mbiti J, African religions and philosophy, Heinemann, London, 1969, 36, and Republic of Kenya, Report of the Commission of inquiry into the land law system of Kenya on principles of a national land policy framework constitutional position of land and new institutional framework for land administration, 2002, 19. 15 Mbiti, Introduction to African religion, 108. 16 Kenyatta J, Facing Mount Kenya: The tribal life of the Gikuyu, Vintage Books, New York, 1965. 17 Republic of Kenya, Report of the Commission of inquiry into the illegal/irregular allocation of public land. 18 Republic of Kenya, Report of the Commission of inquiry into the illegal/irregular allocation of public land, 2. 12

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Communal ownership amongst African communities, which still exists today, has been described as a form of ‘commons.’ ‘Commons’ are ontologically organised resources, available exclusively to specific communities, lineages or families operating as corporate entities.19 A commons is conceptually explained using an inverted pyramid, with the tip representing the family, the middle the clan and lineage, and the base, the community.20 According to Ayisi, this hierarchy represents the extended family which is the raison d’être of all social cooperation and responsibility.21 The social hierarchy determines the manner in which resources are shared and distributed within the community, thus ensuring sustainable utilisation. Access to a resource is dependent on membership of a community. Decisions over access to resources are made by the traditional leadership based on certain normative parameters.22 Such parameters ensure members’ access resources, without unnecessarily compromising the ability of subsequent generations to access the same.23 Members who do not comply with the access rules are castigated and banished from the commons. Moreover, members are required to perform certain reciprocal obligations for the good of the community, to determine the quantum of access rights they may Okoth-Ogendo H, ‘The tragic African commons: A century of expropriation, suppression and subversion’ 1 University of Nairobi Law Journal (2003). Okoth-Ogendo states that the defining characteristics of the commons are that land is held as a transgenerational asset; managed at different levels of social organization; and used in function-specific ways, including cultivation, grazing, hunting, transit, recreation, fishing and biodiversity conservation. He further indicates that under the African property holding regime, power is; a) attached to membership of some unit of production b) specific to a resource management or productive function or group of functions; and c) tied to and maintained through active participation in the processes of production and reproduction at particular levels of social organisation; and control thereof is: d) always attached to ‘sovereignty’ (in its juridical, non-proprietary sense); e) for the purpose solely of guaranteeing access to power over land for production purposes and; f) redistributive both in space and time and between generations and in response to changes in the agrarian structure as a whole. See. Okoth-Ogendo H, ‘Some issues of theory in the study of tenure relations in African agriculture’ 59 Journal of the International African Institute (1989), 10. 20 Okoth-Ogendo, ‘The tragic African commons’, 108. Mbiti submits that the distinguishing element of African communities is their communal nature, which is marked by communal interdependence. He thus states that, ‘Whatever happens to the individual happens to the whole group, and whatever happens to the whole group happens to the individual. The individual can only say: I am, because we are; and since we are, therefore I am.’ See Mbiti J, Poems of nature and faith, East African Publishing House, Nairobi, 1969, 108-109. 21 Ayisi EO,An introduction to the study of African culture, East African Education Publishers, Nairobi, 1992. 22 Lund C, ‘African land tenure: Questioning basic assumptions’ International Institute for Environment and Development Issue Paper, No. 100 (2000). 23 Okoth-Ogendo, ‘Some issues of theory in the study of tenure relations in African agriculture’, 11. 19

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have.24 This is out of recognition of the fact that one’s social group is more important than individual rights and privileges, among other reasons.25 Customary rules play a key role in maintaining a balance between social relations and property relations. These rules are not moribund but are a representation of the cultural and intellectual accumulation that has occurred within societies over the years.26 To the communities, customary rules are germane as they are an expression of social changes, their struggles and aspirations. Therefore, institutions have to be devised to ensure compliance with rules and ensure their transmission to the descendants. African property relations are underpinned by principles of sustainability and equity in access.27 Sustainability ensures that resources are used in a manner that meets the needs of the present, without compromising the ontological demands of the past, and the heritage of future generations.28 Sustainability is succinctly captured in the transgenerational nature of property holding. In the African context, therefore, there is a marked departure from an individualistic-Blackstonian view of property to a more socially-oriented approach to property.29 In summary, therefore, the salient features of the common property holdings are; (a) the distinction between rights of access to resources and control of rights; (b) the power of control (which is vested in a recognised political authority or entity within a specific community); (c) the allocation of rights depending on one’s social status by a political entity within a community; (d) the guarantee of access rights to individuals based on the performance of certain reciprocal obligations; and (e) the lack of exclusivity in property holding as known under English property jurisprudence.30 Okoth-Ogendo, ‘The tragic African commons’, 108. Venter E, ‘The notion ofubuntuand communalism in African educational discourse’ 23 Studies in Philosophy and Education (2004), 149−160. 26 Ochieng P, ‘Cultivating a legally more beneficial future’ The Nation, Nairobi, 1987. 27 Belloncle writes: African villages…generally have democratic power structures. This is particularly evident in the existence of a council of household heads assisting the village chief (the first among equals), and by the consultation surrounding public decision making. It is never sufficiently recognised what a trump card this may constitute from the perspective of ‘contractual’ development…In general, African villages still exhibit a few great deal of economic homogeneity. And primarily, but for a few exceptions, the general rule is equal access to land. See Belloncle G, La question paysanne en Afrique noire, Kathala, Paris, 1982. 28 Okoth-Ogendo, ‘The tragic African commons’, 108. 29 Nyamu-Musembi C, ‘Breathing life into dead theories about property rights: De Soto and land relations in rural Africa’ Institute of Development Studies Working Paper (2006), 272. 30 Sorrenson MPK, The origins of European settlement in Kenya, Oxford University Press, Nairobi, 1968. 24 25

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3.2 Property as being more than the res Property, especially land, in the African setting remains shrouded in mystery and ritual.31 Property is more than the physical solum. It extends to other cultural, spiritual and social realities that may not be physical. Community members may thus have access rights to land, to derive benefits from the physical solum without necessarily owning it.32 A clear distinction therefore exists between the physical solum and fixtures attached to the soil, which under English property relations are part of land.33 A good example of this is found in the coastal region where traditionally people can have rights to put up structures, plant coconut trees and harvest fruits of those trees without owning the land. These customary or usufruct rights do not fit neatly into the Blackstonian framework of property and have presented courts with difficulties.34 Some scholars claim that this distinction exists to govern the manner in which the physical solum and other manifestations of human interactions with the solum such as crops, buildings and trees are to be governed.35

3.3 Property as a transgenerational asset African property relations traverse the state of affairs as perceived by the living, the past and future generations.36 Property is, thus, a transgenerational asset, held for the benefit of the dead, the living and the yet-to-be born. Bénézet Bujo explains that the Bantu people’s use of the phrase ‘yet-to-be-born’ rather than the ‘unborn’ underscores the inevitability of their birth and is precisely the source of obligation to preserve property for them.37

Okoth-Ogendo, ‘Some issues of theory in the study of tenure relations in African agriculture’, 6-17. These access rights are called usufruct rights. These are rights that enable a person to access and use land owned by another as long as the land is not substantially altered. 33 Under the maxim cuius est solum, eius et usque ad coelom et ad inferos (he who owns soil owns also up as far as the sky and down to the depths) and quicquid plantatur solo cedit (whatever is attached to the soil becomes part of the soil). 34 Smith HE, ‘Community and custom in property’ 10 Theoretical Inquiries in Law, 5 (2009), 13. 35 James RW and Fimbo GM, Customary land law of Tanzania: A sourcebook, East African Literature Bureau, Nairobi, 1973. 36 Okoth-Ogendo, ‘The tragic African commons’, 5. 37 Bujo B, The ethical dimension of community: The African model and the dialogue between north and south, Paulines Publications Africa, Nairobi, 1998, 27 31 32

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The transgenerational dimension of landholding in Africa is best explained by ancestral lands which represent a spiritual connection between the past, present and future.38 Land is not seen merely as an economic or political resource, but as a transgenerational asset, a medium defining and binding together social and spiritual relations within and across generations.39 A Nigerian chief explains this quite succinctly when he observes that ‘…land belongs to a vast family of which many are dead, few are living, and countless members are still unborn.’40 It is for this reason that some have rightly argued that removing Africans by force from their land is an act of great injustice and, even if people voluntarily leave their homes, ‘there is a fundamental severing of ties which cannot be repaired and which often creates psychological problems.’41 To realise good life, communion with ancestral lands in which the living dead reside in the concrete phenomena found there, must be maintained. Ogbu Kalu notes that this communion must never be broken for the ‘dead are not dead’ but all around us ‘in the thickening shadow...in the tree that rustles... in the wood that groans...in the breast of the woman...in the child who is wailing... in the firebrand that flames...in the forest...in the house.’42 Property holding ensures equitability in that access rights are guaranteed to all members of the community, including women. This is in contradistinction to the western systems which allow for dispossession of women when an individual (who in most cases is the male member of the family), is registered as the proprietor of the land.43 Communal property relations are thus superior to western views of property due to their emphasis on sustainability and equity. There is emphasis on intragenerational equity amongst present generations through the inclusive nature of property holding and intergenerational equity because of the transgenerational nature of the commons which imposes obligations to conserve resources on present generations.

Magesa, What is not sacred? 59. Republic of Kenya, Report of the Commission of inquiry into the land law system of Kenya on principles of a national land policy framework constitutional position of land and new institutional framework for land administration, 2002, 19. 40 Republic of Kenya, The report of the Mission on land consolidation and registration in Kenya, 1966. 41 Mbiti, African religions and philosophy, 26-27. 42 Ogbu K, ‘Ancestral spirituality and society in Africa’ in Olupona J (ed), African spirituality: Forms, meanings and expressions, Crossroad Publishing, New York, 2000, 54. 43 Maathai W, The challenge for Africa, Arrow Books, London, 2010, 227. 38 39

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3.4 Property and spirituality in African societies Property and spirituality are intertwined in Africa. The African commons are primarily the fountain from which the spiritual life and political ideology of communities sprang.44 This sharply contrasts with western property models where the spiritual dimension to property is not pronounced.45 Spirituality is immanent in Africa and is more significantly felt in the African religious consciousness. All human attitudes and behaviour, even towards property, affect the spirits of the dead in one way or the other. In this connection Magesa notes that, ‘...in daily human conversation, acknowledgement of spiritual agency is likewise on everyone’s lips and can be heard in expressions of joy or grief, pleasure or pain, thanksgiving or complaint, or hope or despair, or even surprise. Spirits punish or vindicate and enforce or render curses harmless.’46

Land and other resources are also viewed in a sphere of spiritual cosmology, and as critical bases for the sustenance of universal life. The skies above (clouds, sun, moon and stars) and the earth below (the soil and the soil’s products), are dwelling places of all energies and they enjoy an enduring relationship.47 The sky and the earth are regarded as the ‘father’ and ‘mother’ of all life. They provide sustenance through water, air, fire, crops, trees, and stones for various human uses. While the sky represents the dwelling place of God, the soil is the mother of all living beings and is equally mysterious and deep in its powers over life. Life, as a whole, exists as a result of the ‘marriage’ between the sky and the earth; all life must return to the earth in death. This fact adds to the soil’s spiritual significance, and the need for its veneration without question.48 Accordingly Magesa observes that: ‘...ancestral land is especially venerable not just for social and economic reasons as the source of sustenance for a specific people. It is to be honoured on account of its unseen value as the indicator of the life force of the ancestors in its strongest form, life-in-death, because this is where the ancestors lie. And is it not around ancestral life, fused completely in death with ancestral land, that all life, tradition, and the morality of the family, clan, and group revolve?’49 Okoth-Ogendo, ‘The tragic African commons’. It is argued that the imposition of foreign property laws, devoid of spiritual connotations, contributed to the destruction, suppression and subversion of the African commons. See Sarfo-Mensah P, ‘Impact of ethno-cultural factors and land tenure on land use and land use planning’ Land Use, Land Cover and Soil Sciences, Vol. III http://www.eolss.net/sample-chapters/c19/E1-05-03-04.pdf on 15 July 2015. 46 Magesa, What is not sacred? 95. 47 Magesa, What is not sacred? 31. 48 Magesa, What is not sacred? 31. 49 Magesa, What is not sacred? 31. 44 45

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Amongst most ethnic groups, land is held as a deity where taboos and totemic connotations underpin access to use and management.50 There are numerous examples of locations, sacred hills, forests, animals, and so on, where access or use of anything found there is prohibited because the primary owners are the spirits.51 Most importantly, every royal ancestor had a precise territory, called a ‘spirit province’. In effect, a person, animal, plant, or stone inhabited merits, more reverence and respect than usual on account of the spirit dwelling there.52 Hence, the spirituality of property in Africa, regulates access to most natural resources, and ensures their judicious exploitation. For example, there are accounts indicating that certain communal resources such as wells, lakes, forests, hills, rivers, et cetera, could not be accessed very early in the morning as it was believed that one could encounter and even be harmed by a large snake, or totems, or spirits that lived there and guarded the resource.53 Accordingly, therefore, All space is sacred because its physical, material appearance contains the invisible powers that make life possible: the world of the spirits is integrated into that of space. In space as well as time, sacrifices and offerings are made to strengthen the community’s soul. For this reason, some spaces carry more significance than others, with places of worship requiring the greatest respect.54

Jomo Kenyatta reports that among the Agikuyu people, an agriculturalist community, land supplies them ‘with the material needs of life, through which spiritual and mental contentment is achieved.’55 Communion with the ancestral spirits is thus perpetuated through contact with the soil in which the ancestors are buried. To the Agikuyu, the earth is the ‘mother’ of the tribe. The mother bears her burden for about nine moons while the child is in her womb, and then for a short period of suckling. But the soil feeds the child through a lifetime, and after death the soil nurses the spirits of the dead for eternity, making it the most sacred thing above all that dwell in or on it. The soil is thus especially honoured and an everlasting oath is to swear by the earth.56

Republic of Kenya, Report of the Commission of inquiry into the land law system of Kenya on principles of a national land policy framework, constitutional position of land and new institutional framework for land administration, 2002, 19. 51 Magesa, What is not sacred? 90. 52 Magesa, What is not sacred? 37. 53 Magesa, What is not sacred? 90-91. 54 Magesa, What is not sacred? 58. 55 Kenyatta, Facing Mount Kenya, 22. 56 Kenyatta, Facing Mount Kenya, 22. 50

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Certain spaces are so sacred, that even trespassing on them is regarded a taboo. For instance, it is only a few selected elders who are allowed to enter sacred places like groves or climb sacred hills when special prayers are needed. Evil people do not access such places, as their evil plans and secrets and anti-life intentions may be involuntarily exposed. In this connection, it is documented that in the African social set up: Communal spaces and places of worship often inspire awe by their locations, sizes, or shapes. In this respect they are out of the ordinary, and mystical powers are associated with them. Rocks or trees, for example, may be reputed to possess the ability of movement or speech.57

Ancestral lands, including burial grounds in traditional African society, are significant in the context of time, space, history and human fulfilment. Ancestral land, meaning the space or location where the ancestors lie, is home, and it represents the fulfilment of time, of human life and of history.58 Magesa points out that a person is not complete wherever he or she lives, without ancestral identity, symbolised by ancestral land. Even if one spends a lifetime elsewhere, that is not home. ‘Home’ is the ancestral space, where one desires to be buried in death, together with ‘one’s own people.’59 Another rationale for burying people in their ancestral lands is that that is where parents bury the umbilical cords of their children, ‘to link them concretely and unambiguously with their ancestry.’ At times, when difficulty arises in naming a child, it is reported that the correct name is affirmed by a ceremony performed there.60 Mbiti discusses the spiritual role of property in African societies including making sacrifices, offerings and other religious purposes. For example, he finds out that in Africa many people have a sacred attitude towards their cattle,61 and animals and plants have religious connections some of which are linked with concepts of God. The same case applies to natural phenomena and objects. Regarding property and other natural phenomena, Mbiti notes that: Magesa, What is not sacred? 58. Magesa, What is not sacred? 58-59. 59 Magesa, What is not sacred? 58-59. See also the famous SM Otieno Case (Virginia Edith Wambui v Joash Ochieng Ougo and Omolo Siranga (1982-88)1 KAR) which involved a burial dispute as to whether a Luo man should be buried in his rural area in Nyalgunga or Nairobi far away from his ancestral burial grounds. Dispute was resolved in favour of the Luo clan to bury the man in his ancestral burial grounds. 60 Magesa, What is not sacred?. 61 Mbiti, African religions and philosophy, 50. 57 58

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‘...for African peoples, this is a religious universe. Nature in the broadest sense of the word is not an empty impersonal object or phenomena... God is seen in and behind these objects and phenomena: they are His creation, they manifest him, they symbolize His being and presence. The invisible world is symbolized or manifested by these visible and concrete phenomena and objects of nature. The invisible world presses hard upon the visible: one speaks of the other, and African peoples ‘see’ that invisible universe when they look at, hear or feel the visible and tangible world. This is one of the most fundamental religious heritages of African peoples. It is unfortunate that foreign writers, through great ignorance, have failed to understand this deep religious insight of our peoples; and have often either ridiculed it, or naively presented it as ‘nature worship’ or ‘animism’...The physical and spiritual are but two dimensions of one and the same universe...To African peoples this religious universe is not an academic proposition: it is an empirical experience, which reaches its height in acts of worship.’62

Human relationship with natural resources is reciprocal, such that, if human beings sanctify the land, ‘the land blesses them in equal measure.’63 Degrees of reverence or fear towards certain fauna and flora is dependent on the plant or animal one is dealing with and the type of spirit-power that animal or plant is perceived to incarnate; above all, the spirit of the earth, as mother earth is revered for its ability to sustain universal life.64 Therefore, if nature is not treated with reverence, all human and universal life is most likely going to diminish. Current environmental and other natural disasters, like floods, earthquakes, epidemics, climate change, should thus be viewed bearing in mind the ethical and spiritual lessons of human failure.65 The communitarian and spirituality dimension of African property relations is explained thus: While belonging to a community entitles an individual to the use of the goods there, it makes sharing an obligation and, much more, a spiritual requirement, because it is a means of bonding within the community and so with the ancestral spiritual powers. Sharing, especially among non-equals, brings about a sense of social equality and equity, and thereby deters the destructive emotions of jealousy and hatred that social inequality, oppression, and exploitation breed. Sharing is thus an act of prayer in that it implicitly acknowledges the giftedness of possessions, the primary owner of which is God.66

Meek supports this proposition by asserting that African peoples traditionally had no conception of ‘ownership’ of land in the western sense. Land belonged to 64 65

Mbiti, African religions and philosophy, 57. Magesa, What is not sacred? 59. Magesa, What is not sacred? 37. Magesa, What is not sacred? 59. Pope Francis expresses similar views regarding the natural rights theory to property as discussed in Chapter Two. 66 Magesa, What is not sacred? 96. 62 63

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God, with communities only being concerned with the use of the land.67 Bujo as well argues that, for instance, Bantu languages have no verb ‘to have’ but rather express communion with things in similar terms with persons.68 As an example in the English language one would say ‘I have a car’ or the Arabised Swahili ‘ninamiliki gari’ but with the Bantu root Swahili one would say, ‘niko na gari’, or in Gikuyu ‘ndi na gari.’ You will note that in the Bantu languages the emphasis is on the respectful communion or relationship with the environment or property, and not ownership in the western sense. See also the concept of ‘All my relationships’ amongst indigenous groups in other parts of the world, which reveals the respectful relationship of human beings and nature as equals. This view also extends to the ownership of other forms of property by African communities. Intellectual property, in the form of traditional knowledge, is usually owned by the communities collectively as a gift from a superior being, held transgenerationally and perpetually for the benefit of the community.69 A similar belief is prevalent in the Jewish view on intellectual property. According to the Jews intellectual property rights ought not to be granted to individuals, because the intellect is connected with the divine and the spiritual rather than the physical and mundane.70 Ideally, therefore, thoughts and ideas cannot be proper subjects of ownership under African property law. Spirituality continues to play a role to date. Spiritual dimensions ‘still guide the systems of land exchange in most parts of Africa, even among Christians and Islamic groups, majority of whom are still considered to indulge in syncretism.’71 Property is a critical element in the sealing of marriage ties in most African societies.72 The exchange of bride wealth in African societies has a spiritual dimension as it involves ancestors on both sides regarding what is given.73 Often an animal must be slaughtered, or some other article (a blanket, a cooking pot,

Meek CK, Land Tenure and land administration in Nigeria and the Cameroons, Her Majesty’s Stationary Office, London, 1957, 113. 68 See generally Van der Borght E (ed), ‘The God-given land’: Religious perspectives on land reform in South Africa, Rozenberg Publishers, Amsterdam, 2009. 69 Traditional Knowledge http://shodhganga.inflibnet.ac.in/bitstream/10603/22605/9/09_chapter2.pdf 56 on 28 April 2016. 70 Stern J, “Spiritual property, ‘intellectual’, property, and a solution to the mystery of IP rights in Jewish law” 10 University of St. Thomas Law Journal (2013), 604. 71 Sarfo-Mensah, ‘Impact of ethno-cultural factors and land tenure on land use and land use planning’. 72 Collins RO and Burns JM, A history of Sub-Saharan Africa, Cambridge University Press, New York, 2013, 42. 73 Magesa L, African religion: The moral traditions of abundant life, Orbis Books, Maryknoll, 1997, 134. 67

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or an amount of beer or food) must be given in the ancestors’ name and honour.74 And if this is not done, all aspects of the marriage, including its fruitfulness in terms of children, are jeopardised from the start.75 It is reported that the spiritual marital journey begins with the exchange of material things, and culminates in the incarnation of the ancestors in the family and clan through the birth and naming of children.76 Consequently, in Africa, land may not be easily exchanged as it can in Europe without considering these factors.77

3.5 Human rights, communitarianism and the African concept of property As pointed out earlier, Anglo-American jurisprudence adopts an individualistic view of property. The basis for this standpoint is human dignity. Human dignity is the bedrock for the granting of human rights.78 Hence, from a human rights perspective, an individual becomes the focal point and not the society; the former is respected as such and not on account of ‘the relationship with others.’79 Some African scholars explain that even if human rights show a communitarian dimension, in spheres such as family and marriage where they can only be realised within a community, they are always concerned with the individual’s selfrealisation.80 A human rights framework embodies what Immanuel Kant describes as ‘autonomy.’81 Kant writes that freedom (as independence from another person’s constraining arbitrariness) is the sole, original right, to which every human being is entitled on the basis of humanity itself, as long as it can exist with every other freedom in accordance with a general law.82 And so, one treats another ‘unjustly whenever one hinders that “another” from doing what is legally permitted.’83 Freedom in autonomy does not support arbitrariness, but stresses to the highest degree reasonable and responsible self-determination. In the end, autonomy presupposes the will 76 77 78 79 80 81

Magesa, African religion, 133. Magesa, African religion, 132-133. Magesa, What is not sacred? 97. Sarfo-Mensah, ‘Impact of ethno-cultural factors and land tenure on land use and land use planning’. Malpas J and Lickiss N, Perspectives on human dignity: A conversation, Springer, Dordrecht, 2007, 75. Bujo, The ethical dimension of community, 144-145. Bujo, The ethical dimension of community, 144-145. See Kant I, Critique of practical reason, Gregor M (trans), Cambridge University Press, Cambridge, 2015, 30. 82 See Kant, Critique of practical reason, 30. 83 Bujo, The ethical dimension of community, 145. 74 75

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and desire of every human being to become part of a free community.84 Because freedom has always to keep in mind the communitarian dimension, it can only be developed within a community. Without a communitarian relationship there is no identity for the African person. Only together with others can one become a human person and achieve individual freedom, which again should be exercised in a communitarian manner.85 In spite of this dynamism of the philosophy of human rights, they are applied in a very individualistic way. Worse still is the fact that their concretisation has taken place in the Euro-American context. Consequently, within existing human rights frameworks, an individual’s right to property is the central point.86 From this Anglo-American perspective, property rights are based on a long tradition which has taken the natural law as the basis for its reflection, and the individual as its focal point. Conversely, in the African context, ‘property is never private’; as the individual administers it in the interest of the community.87 Because property is communal, it ought, therefore, to serve social and not individual interests. As such, As it is not permissible to privatize life for oneself, one is not permitted to use property at one’s own discretion, since property cannot be separated from the life force.88

Thus, in some parts of Africa, an individual cannot dispose of property for another purpose than the usual one, without first consulting the relatives.89 Land (particularly ancestral land) cannot be sold or leased without the consent of the extended family, as this may reduce the life force of the community.90 Many traditional cultures do not accept the idea that land can be bought and sold. Instead, they maintain that humans can only have use-rights over the land resource, which is something permanent and can only belong to a supreme power, not to mortals.91 A chief cannot even expropriate an individual’s property in case of a grave offence since property is administered jointly. Moreover, even though property held Bujo, The ethical dimension of community, 145. Bujo, The ethical dimension of community, 148. 86 Bujo, The ethical dimension of community, 149. See also Vorster JM, ‘Is the private ownership of land a fundamental human right?’ in Van der Borght (ed), ‘The God-given land’, 81-94. 87 Bujo, The ethical dimension of community, 149. See also Vorster, ‘Is the private ownership of land a fundamental human right?’, 81-94. 88 Bujo, The ethical dimension of community, 149-150. 89 Hammond-Tooke WD, Bhaca society: A people of the Transkeian uplands, South Africa, Oxford University Press, Cape Town, 1962, 155. 90 Bujo, The ethical dimension of community, 149-150. 91 Berkes F, Folke C and Gadgil M, ‘Traditioinal ecological knowledge, biodiversity, resilience and sustainability’ in Perrings CA, Maler KG, Folke C and Holling CS (eds), Biodiversity conservation: Policy issues and options, Kluwer, Dordrecht, 1995, 291. 84 85

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by an elder is regarded as the fruit of his personal labour, it is not considered as his personal possession. Such an elder is only viewed as a guardian and steward. Tribal elders are equally respected, even if they do not possess a lot of property. The respect they wield in society, wisdom and long-time service, matters a lot to the community.92 Traditionally, there were no social classes due to disparities in material accumulation as is the case in the western world (capitalism and private property occasion property inequalities in society).93 Class relations that were there, were closely linked to professional expertise, whether as a blacksmith, a warrior, a bricklayer and so on, but were not related to wealth. The egalitarian character of African society was and still is based on a communal ownership of property and is highly respected. In fact, it is argued that the root of possessions goes back to group solidarity, depicted by joint work towards the acquisition of material goods.94 It is also important to note that in the African context, the community includes the deceased members as well. The deceased, especially the ancestors are said to possess pieces of land, water places, parts of forest, as their rightful property.95 Members of these communities therefore usually demand that these rights be respected. This clearly played out in the SM Otieno case where members of the Umira Kager Clan, of the Luo community, laid claim to the body of the late SM Otieno and a contest erupted between the clan and the widow of the deceased.96 According to the clan, SM Otieno had to be buried in his native home as this is the place he had connections with, and where culture demanded he be buried, unlike Nairobi where according to the clan he only had a ‘house’. The discourses in the course of these proceedings are critical in identifying the meaning of land since, according to the Luo community, the dead had to be united with the soil, their roots. Land was thus a unifying factor. Hence, the dead had to be buried on communal land in order to unite them with the living and the yet to be born in the communities. These discourses are important in understanding human rights and property relations in Africa. The deceased are said to constantly demand that the living fulfil certain obligations.97 They claim honour, reparation, libations for food, amongst Bujo, The ethical dimension of community, 161-163. See also Kenyatta, Facing Mount Kenya, 255. Piketty T, Capitalism in the twenty-first century, Goldhammer A (trans), The Belknap Press of Havard University Press, Cambridge, 2014, 237. 94 Bujo, The ethical dimension of community, 161-163. 95 Bujo, The ethical dimension of community, 161-163. 96 Virginia Edith Wambui v Joash Ochieng Ougo and Omolo Siranga (1982-88) 1 KAR. 97 Bujo, The ethical dimension of community, 153. 92

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other things.98 In the African setting the deceased are property owners. In this context, Bujo observes that: The deceased, especially the ancestors, can be said to possess pieces of land, water places, parts of a forest, and so on, as their rightful property...this property can be used by later generations, but with great respect, and never arbitrarily. Strangers who have no right to this heirloom contravene this right of the dead, as well as that of their heirs, whenever they seize such property without their permission.99

It is customary amongst most communities in Africa, to bury the umbilical cord of a new-born baby. This very important symbolic act is regarded as the foundation of the right to a piece of land. The infant is joined to its home for better or for worse, and nobody can contest his place of birth. The act of burying the umbilical cord also forecasts death and anticipates the burial of the person concerned. It also connects the infant with its forefathers, whose umbilical cords are buried in the same place, or who are themselves already buried there.100 The child blood-land interaction is explained thus: Because part of oneself has been offered to the earth, the earth belongs to the human person and vice versa. The earth which has been ‘nourished’ by the child’s first drops of blood has to nourish this child continually until it returns to the ancestors through this very earth.101

Similarly, concerning the grave, the connection with the earth, initiated by the umbilical cord, is finally sealed by death. Hence, the planting of a tree on the grave, in most communities, is proof of the presence of and right of ownership of the deceased. It also shows the protection and guarantee of the children’s heritage, who can always and irrefutably use it as a form of reference against usurpers. Where a person dies and is buried outside one’s native place, a number of practices are performed to connect the person with his ancestral home. For example, some body parts like hair, fingernails and toenails are removed and transported to the place of birth to be ‘buried’ there. Other communities remove soil from the grave and take it to the family or lineage of the deceased, which ‘buries’ it on the native soil of the deceased. This symbolic act, of taking earth from a far-away grave links the deceased person to his ancestral land and keeps the connection alive within the family and clan community.102

Bujo, The ethical dimension of community, 153. Bujo, The ethical dimension of community, 153. 100 Bujo, The ethical dimension of community, 153-154. 101 Bujo, The ethical dimension of community, 153-154. 102 Bujo, The ethical dimension of community, 153-154. 98 99

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It is clearly evident that using the mainstream human rights framework to explain property rights to land in traditional African society presents a huge problem. Because the dead belong to the community, they are the subjects of property rights, and hence their land cannot be expropriated. Activities that alienate communities from their ancestral territories like colonialism, displacement due to mining activities and compulsory acquisition, delink people from their ancestral lands, graves of their ancestors and the burial sites of their umbilical cords. Such acts are usually not seen as legal violations of human rights in the mainstream frameworks. However, with the renaissance of community and peoples’ rights in Africa,103 a new consciousness is arising regarding these rights. Nevertheless, this is happening when expropriation of community land has taken place or is still taking place.104 Due to the strong connections between property and spirituality, any normative framework governing community land must pay due regard to the spiritual dimensions of land, and the special role of property as a life force in community that transcends the living, the not yet born and the dead. Reforms that do not take account of these dimensions are fallacious and destined to fail. This explains why previous property regimes that have been adopted to govern customary forms of ownership have largely failed as they are merely pallid impostures of the factual realities. The Inter-American Court of Human Rights observed in Saramaka People v Suriname,105 that where the property rights of indigenous communities are being acquired by the state, there should be ‘...consultations in good faith, through culturally appropriate procedures and with the objective of reaching an agreement.’106 The community must be made aware of the risks from the uses the land is being put to, for example, environmental and health risks. It is also a requirement that, ‘…consultation should take account of the Saramaka people’s traditional methods of decision-making.’107 The safeguards with respect to the property of the community, according to the Court, ‘…are intended to preserve, protect and guarantee the special relationship that the members of the Saramaka community have with their territory, which in turn ensures their survival as a tribal people.’108 The Court

See African Charter on Human and Peoples’ Rights, 27 June 1981, 1520 UNTS 217, which is the only human rights instrument in the world dealing with ‘human and peoples’ rights.’ 104 Community land is under threat from population pressure, mining and exploration activities, infrastructural projects, lack of adequate frameworks for its protection, et cetera. 105 Judgment of 28 November 2007. 106 Saramaka People v Suriname, Judgment of 28 November 2007, para 133. 107 Saramaka People v Suriname, Judgment of 28 November 2007, para 133. 108 Saramaka People v Suriname, Judgment of 28 November 2007, para 129. 103

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also stated in the Kichwa Indigenous People of Sarayaku v Ecuador,109 while interpreting Article 21 of the American Convention of Human Rights110 on the right to property, that even though the communal ownership of property by indigenous communities does not fit into the conventional conception of property, they deserve legal protection as, Article 21 of the American Convention protects the close relationship between indigenous peoples and their lands, and with the natural resources on their ancestral territories and the intangible elements arising from these. The indigenous peoples have a community-based tradition related to a form of communal collective land ownership; thus, land is not owned by individuals but by the group and their community. These notions of land ownership and possession do not necessarily conform to the classic concept of property, but deserve equal protection under Article 21 of the American Convention. Ignoring the specific forms of the right to the use and enjoyment of property based on the culture, practices, customs and beliefs of each people, would be tantamount to maintaining that there is only one way to use and dispose of property, which, in turn, would render protection under Article 21 of the Convention illusory for millions of people.111

The Court also went ahead to highlight the connection between the communal ownership of the land and related resources by the community and their survival and ability to propagate their worldview. It commented thus: Given this intrinsic connection that indigenous and tribal peoples have with their territory, the protection of property rights and the use and enjoyment thereof is necessary to ensure their survival. In other words, the right to use and enjoy the territory would be meaningless for indigenous and tribal communities if that right were not connected to the protection of natural resources in the territory. Therefore, the protection of the territories of indigenous and tribal peoples also stems from the need to guarantee the security and continuity of their control and use of natural resources, which in turn allows them to maintain their way of living. This connection between the territory and the natural resources that indigenous and tribal peoples have traditionally used and that are necessary for their physical and cultural survival and the development and continuation of their worldview must be protected under Article 21 of the Convention to ensure that they can continue their traditional way of living, and that their distinctive cultural identity, social structure, economic system, customs, beliefs and traditions are respected, guaranteed and protected by the States.112

111 112 109 110

Judgment of 27 June 2012. 21 November 1969, 1144 UNTS 123. The Kichwa Indigenous People of Sarayaku v Ecuador, Judgment of 27 June 2012, para 145. The Kichwa Indigenous People of Sarayaku v Ecuador, Judgment of 27 June 2012, para 146.

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3.6 Property and dispute resolution in traditional African societies As succinctly stated in the above sections, the holding of land among African communities seeks, among other things, to ensure that social relations are maintained by ensuring harmonious use of resources. Disputes are, however, bound to occur within these societies as community members interact with resources that are available for their use. Traditionally, mechanisms were formulated to ensure that such disputes were justly and expeditiously dealt with.113 Traditional dispute resolution mechanisms (TDRMs) are one of the defining characteristics of African property regimes. When conflicts arise in these communities, parties can resort to negotiations and, in other instances, to the council of elders or elderly men and women who act as third parties in the resolution of conflicts.114 These dispute resolution mechanisms foster harmonious relations among community members as expressed in terms such as Ubuntu, used in South Africa, and Utu in East Africa.115 Certain principles inform the adoption of these dispute resolution mechanisms. Truth is one of the key principles which these dispute resolution mechanism are premised on.116 Beliefs in ancestral powers dominated the consciousness of every member of the collective. Presence of the ancestral forces played a big role in ensuring that persons were truthful and some would collapse or be forced to say the truth upon swearing oaths.117 Among the Giriama of Kenya, two main institutions are identifiable: the council of elders and the oracles. The council of elders consisted of persons in the senior age-set known as the kambi who listened to normal and day-to-day complaints and resolved them.118 The most revered set of council of elders was known as the vaya and it consisted of a few select elders who operated as a secret society.119 This latter Muigua K, ‘Traditional dispute resolution mechanisms under article 159 of the Constitution of Kenya, 2010’, 1 http://www.kmco.co.ke/attachments/Article/111/Paper%20on%20Article%20159%20Traditional%20Dispute%20Resolution%20Mechanisms%20FINAL.pdf on 22 July 2015. 114 Muigua, ‘Traditional dispute resolution mechanisms under article 159 of the Constitution of Kenya, 2010’, 1. 115 Muigua, ‘Traditional dispute resolution mechanisms under article 159 of the Constitution of Kenya, 2010’, 2. 116 Adeyinka A and Lateef B, ‘Methods of conflict resolution in African traditional society’ 8 African Research Review: An International Multidisciplinary Journal, 2 (2014). 117 Adeyinka and Lateef, ‘Methods of conflict resolution in African traditional society’, 142. 118 Marguerite J, ‘Giriama reconciliations’ 16 African Studies, (1978), 95. See also Marguerite J, ‘Dispute settlement among the Giriama of Kenya’ PhD Dissertation, University of Pennsylvania, 1976. 119 Marguerite, ‘Giriama reconciliations’, 95. 113

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category presided over trial by ordeals as oracles and in this regard, superstitions played a great role in dispute resolution. Among the Kamasian clan of the Kipsigis community, disputes concerning family land were minimal because an old man could normally make a customary oral will by calling all his children and stating how property is to devolve.120 Consequences for violating a will ranged from curses or being struck by lightning. It is clear from the findings from the two communities discussed in the above section that conflict resolution by elders is based on social/cultural values, norms, beliefs and processes that are understood and accepted by the community. This explains why members of these communities were able to abide and comply by the decisions made by these institutions. Fear of grave repercussions also made intra-communal conflicts a rarity.121 As Kenyatta documents, a man could not dare interfere with a boundary mark amongst the Agikuyu people, for fear of his neighbour’s curses and out of respect.122 This respect also arose from the spiritual nature of these communities, and spirituality occupied a central place in resolving disputes and searching for the truth. Commenting on the role of the elders in dispute resolution, Kenyatta notes that: ‘...the functions of an elder, both in his own family group and in the community, is one of harmonising the activities of various groups, living and departed. In his capacity of mediator his family group and community in general respect him for his seniority and wisdom, and he, in turn, respects the seniority of the ancestral spirits.’123

The recognition of traditional dispute resolution mechanisms in Article 159(2) (c) of the Constitution is therefore merely a restatement of customary jurisprudence.124 These mechanisms have been in existence since time immemorial and continue to govern property relations among African societies. The constitutional recognition is seeking to ensure that their place in the dispute resolution system is restored. Article 162(2)(b) of the Constitution requires Parliament to establish a court with the status of the High Court for the resolution of disputes on the environment and the use and occupation, and title to, land. Parliament has, in the discharge

See Kariuki F, “Conflict resolution by elders in Africa: Successes, challenges and opportunities” Chartered Institute of Arbitrators Centenary Conference, Livingstone, 15 July 2015. 121 Kenyatta, Facing Mount Kenya, 38-41. 122 Kenyatta, Facing Mount Kenya, 38-41. 123 Kenyatta, Facing Mount Kenya, 255. 124 Muigua, ‘Traditional dispute resolution mechanisms under article 159 of the Constitution of Kenya 2010’, 3. 120

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of this mandate, enacted the Environment and Land Court Act.125 The provisions of this Act empower the Court to apply traditional justice resolution mechanisms on its own motion and where the parties agree or request such.126 The Court is also further required to stay proceedings where use of traditional dispute resolution mechanisms is a condition precedent to any proceedings until the parties apply it.127 The courts are agreeable to this approach. In the case of Lubaru M’imanyara v Daniel Murungi,128 the Court adopted the consent of the parties to refer the land matter to the Njuri Ncheke Council as an order of the Court. In doing this, the Court argued that such is in line with Articles 60(1)(g) and 159(2)(c) of the Constitution. The role of the Gasa Council of Elders of Northern Kenya was also recognized by the Court in Seth Michael Kaseme v Selina K Ade.129 Despite the fact that the introduction of the formal justice systems had led to the relegation of these mechanisms in dispute resolution policy, law and practice, the steps being taken, constitutionally and statutorily, are a recognition that these mechanisms, ‘…remain the most appropriate forum for resolving community land disputes. Their informal and community inclusive nature as well as resolution of disputes in the pursuit of restorative justice provide the best forum for resolution of community land disputes. This is owing to the fact that community land ownership is characterized by a web of interests and relationships where land rights are held by different individuals and groups with diverse interests. These relationships, therefore, need to be preserved for the communities to live harmoniously.’130

The Community Land Act has attempted to take into account some of the defining characteristics of the African property holding systems, especially the fact that community land vests in the community.131 Community land can be held as communal land; as family or clan land; as reserve land; or in any other category of land recognized under this Act or other written law.132 Customary land rights, including those held in common, have equal force and effect in law with freehold or

127 128 129 130

Chapter 12A, Laws of Kenya. Section 20(1), Environment and Land Court Act (Chapter 12A, Laws of Kenya). Section 20(2), Environment and Land Court Act (Chapter 12A, Laws of Kenya). Miscellaneous Application No. 77 of 2012. Civil Appeal No. 25 of 2012. Ng’etich R, ‘The rejected stone may be the cornerstone: A case for the retention of traditional justice systems as the best fora for community land disputes in Kenya’ 1 Strathmore Law Review, 2 (2016), 141. 131 Section 4, Community Land Act (Act No. 27 of 2016). 132 Section 12, Community Land Act (Act No. 27 of 2016). 125 126

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leasehold rights acquired through allocation, registration or transfer.133 A certificate of title issued to a community is evidence of proprietorship in favour of that community.134 For purposes of holding land, each registered community must have a community assembly consisting of all adult members of the community.135 It is the community assembly that is to elect between seven and fifteen members to form a Community Land Management Committee which is to manage and administer registered community land on behalf of the respective community.136 It appears that the law has failed to take account of the fact that institutions already exist among different ethnic and tribal communities which are tasked with the management of land.137 The Act has taken cognisance of the fact that individuals or a group of members of a community can also be granted rights over community land. In such cases, the individual or group applies to the community assembly which can either accept or deny the request.138 Individuals or a group of members are to have exclusive and occupation rights for a period determined by the community. Nevertheless, a separate title cannot be issued to the individual or group of members.139 Moreover, an individual entitlement cannot be superior to community title in any way140 so as to prevent the privatisation of community land. The Act takes cognisance of the fact that despite these lands being held by the communities in common, certain areas were considered to be ‘public’ while others had limited access in the nature of private holdings. This augurs well with the nature of holdings among African communities like the Agikuyu where certain areas that were of importance to communities were considered to be public, hence members of the communities could not expropriate them for their use. These areas were used collectively, for the good of all in the community.141 This Act is discussed in detail in the Chapter on Land Management in Kenya.

135 136 137 138 139 140 141 133 134

Section 5(3), Community Land Act (Act No. 27 of 2016). Section 16-17, Community Land Act (Act No. 27 of 2016). Section 15(1), Community Land Act (Act No. 27 of 2016). Section 15 (3) & (4), Community Land Act (Act No. 27 of 2016). See discussion in the Chapter dealing with land management. Section 27(1), Community Land Act (Act No. 27 of 2016). Section 27(2), Community Land Act (Act No. 27 of 2016). Section 27(3), Community Land Act (Act No. 27 of 2016). Kenyatta, Facing Mount Kenya, 37.

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3.7 Debunking the fallacies of western property conceptions With the wide prevalence of western property models in Africa, numerous fallacies have arisen regarding African property relations.142 This has led to the adoption of alien property notions that are ashen imitations of European models and pallid impostures of factual realities.143 Some western property writers have keenly maintained that the commons are not and cannot be regarded as property systems, that they are merely terra nullius or open access resources.144 They contend that property can only be held by individuals or other ‘jural’ entities, vested with title by an authority which is itself a juridical persona.145 To them, property rights must always derive, if not directly, but ultimately from a sovereign. They wrongly posit that communities qua communities do not have a legal persona, and are therefore not proper candidates for holding property. They support this assertion by contending that a property system according access on the basis of inclusivity cannot at the same time define boundaries of exclusivity since decision-making demands collective participation by all community members.146 According to Garret Hardin, common property regimes lead to a tragedy (the ‘tragedy of the commons’).147 They argue, therefore, that this tragedy arises because of ineffectiveness and inefficiency in internalising externalities associated with common holdings. No user in the commons has the incentive to internalise these externalities. Further, they argue that common property regimes suffer from internal contradictions, caused by lack of normative order, which contributes to resource overuse.148 In their opinion, the tragedy, therefore, can only be averted by granting private property rights. Liberalists also proclaim that communal ownership makes property nonfungible,149 as it cannot be transacted in the market resulting in inefficiency. Al See generally Okoth-Ogendo HWO, ‘The perils of land tenure reform: The case of Kenya’ in Arntzen JW, Ngcongco LD and Turner SD (eds), Land policy and agriculture in Eastern and Southern Africa, United Nations University, Tokyo, 1986. 143 Okoth-Ogendo, ‘The Perils of land tenure reform’, 79. 144 Okoth-Ogendo, ‘The tragic African commons’, 4. 145 Okoth-Ogendo, ‘The tragic African commons’, 4. 146 Okoth-Ogendo, ‘The tragic African commons’, 4. 147 Hardin G, ‘The tragedy of the commons’ 162 Science (1968), 1243-1248. 148 Hardin, ‘The tragedy of the commons’, 1243-1248. 149 De Soto H, The mystery of capital: Why capitalism triumphs in the west and fails everywhere else, Black Swan, London, 2001. 142

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though this is possibly true for the reason that the property embodies the communities’ personhood,150 proponents of communal property are optimistic that alienability is possible. One such proponent, Nyamu Musembi, identifies five shortcomings in the argument that common property cannot be transacted in the market. These are that: (1) such views are based on a narrow conception of legality to mean only formal legality and suggest that titling is essential for a property regime to function well to replace informal rules; (2) these views presume that customary ownership must eventually evolve to private title; (3) it is erroneous to claim that it is only formal property regimes that can guarantee access to credit facilities; (4) liberalists narrowly construe land markets to only mean ‘formal markets’; and (5) the arguments ignore the fact that title spells both security and insecurity.151 In relation to the African commons, for example, the ability to transact in the market does not necessarily lead to efficiency in property holding.152 In certain cases, such transactions lead to the deterioration of the value of common properties hence making them unsustainable.153 Subjecting the communal holdings to the cash economy also destroys the social relations that are the basis of these holdings.154 African property holding systems are able to maintain sustainability without necessarily conforming to the demands of the cash economy.155 It is for this reason that African property scholars have rightly argued that the western conception of property does not fit well in the analyses of African property systems and relations.156 It is proposed that in analysing African property systems and relations, there is need to use a vocabulary that is contextual, descriptive and that fully takes into account the social and cultural complexities of African societies.157 The vocabulary must distinguish between ‘access to a resource’ (which is an incident of membership in a community, specific to a function and tied to the performance of reciprocal obligations owed to others in soci Elsewhere in this work, it is submitted that common resources are subject to the inalienability rules meaning that resources such as ancestral land cannot be sold out in the market. Transmissibility of common resources such as ancestral lands is tantamount to ‘selling’ or disenfranchising the whole community. 151 Nyamu-Musembi, ‘Breathing life into dead theories about property rights’, 9. 152 Nyamu-Musembi, ‘Breathing life into dead theories about property rights’, 3. 153 For example, alienating. 154 This has other horrendous moral consequences that are discussed in the chapter on land tenure and land administration and management. 155 Economic Commission for Africa, Land tenure systems and their impacts on food security and sustainable development in Africa, ECA/SDD/05/09, Addis Ababa, 2004, ix. 156 Okoth-Ogendo H, Teaching manuals on the law of property (83/84 1982). 157 Okoth-Ogendo, Teaching manuals on the law of property, 424. 150

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ety) and recognise ‘control of a resource’ (which is an incidence of sovereignty vested in the political authority).158 The political authority guarantees access rights by community members.159 However, it is worth noting, that in the African philosophy of property, neither ‘access’ nor ‘control’ amounts to ownership in the Anglo-American sense.160 In the African situation, the concept of property does not refer only to that which is exclusively controlled in the Blackstonian sense. Among the San of South Africa, for example, a discourse of exclusive ownership of property does not exist. Saskia reports the importance of sharing in the San’s customs which militates against exclusive ownership of resources.161 Therefore, the African concept of property, ‘...refers to the system of values which a community (whether a family, lineage or clan) attaches to the use of those resources that are central to its productive forces; the conduct of that use being determined by principles of access determined by the collective whole.’162

Thus, property law in the African context is the body of rules which define, regulate and enforce the principles of access to the situation, thing or object.163 These rules represent a set of injunctions, passed down from generation to generation, and that dominate the consciousness of every member of society collectively from birth to death.164 Such rules are mostly concerned with the establishment of social controls, rather than the distribution of entitlements to individuals.165 This is so because the maintenance of social order through controls affords individuals their material and spiritual security in the communality and allows for freer social interaction amongst persons in society.166 Property relations are thus shaped and informed by communitarianism.167 As such, examining property relations prevalent in a given society necessitates an examination into the total milieu of the lives of a

Okoth-Ogendo, Teaching manuals on the law of property, 424. Okoth-Ogendo, Teaching manuals on the law of property, 424. The political authority therefore exercises a power of distribution and redistribution of access rights, especially as society adjusts to population pressure and constant claims on scarce resources. 160 Okoth-Ogendo, Teaching manuals on the law of property, 425. 161 Vermeylen, ‘Law as a narrative’, 72. 162 Okoth-Ogendo, Teaching manuals on the law of property, 425. 163 Okoth-Ogendo, Teaching manuals on the law of property, 425. 164 Ochieng, ‘Cultivating a legally more beneficial future’, 186. 165 Ojwang, Laying a basis for rights. 166 Odera H, ‘Traditionalism and modernisation in Kenya: Customs, spirits and Christianity’ in Ojwang J and Mugambi J (eds), The S.M. Otieno case: Death and burial in modern Kenya, Nairobi University Press, Nairobi, 1989. 167 Ojwang, Laying a basis for rights, 19. 158 159

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given people.168 It also requires an analysis of the juridical relations that ownership and use of the common property ascribes to including the social, political, economic and spiritual ways of a people. An examination of these incidences necessarily ensures that the power dynamics that govern property become apparent. It would also ensure that the demographic implications of the exercise of power is understood including the need to ensure the stability of the material basis of that power beyond the life of present members of any given unit of production.169 It is instructive to note that the colonial policy towards property in Kenya was fallacious in explaining why the government undertook tenure reforms in native reserves. These reforms aimed at ensuring that all native lands, which were communally held, were converted to private land.170 This is evidenced by the recommendations of the Kenya Land Commission (Carter Commission), in its report, that the tenure obtaining within the native reserves should be based on the native customs, but that it should be progressively guided in the direction of private tenure.171 The process towards private tenure would be evolutionary in the sense that communal tenure would proceed to group tenure, then family holding and ultimately to individual holding.172 Therefore, colonial land policy in Kenya envisioned a continuum of tenure from African holding systems, which were considered to be moribund, to western holding regimes which emphasised individualisation.173 The latter was considered to be superior and the ultimate prescription for the problems of the African property regime. As a result of a flawed conceptualization of common property, most African countries continue to lose critical aspects of their common resources. Such misconceptions have also underpinned numerous land reform processes undertaken under the pretext of protecting the African commons. Another factor contributing to the loss of the commons and an African philosophy of property is the low place that customary law occupies in our legal order.174 As already observed, customary law is the normative framework that regulates the African commons. Therefore, subjecting customary law to the repugnancy clause (as has been the case in most African countries), undermines and subjugates com 170 171 172 173 174 168 169

Okoth-Ogendo, ‘Some issues of theory in the study of tenure relations in African agriculture’, 11. Okoth-Ogendo, ‘Some issues of theory in the study of tenure relations in African agriculture’, 11. See the reforms introduced by the Swynnerton Plan discussed elsewhere in this book. See Carter WM, Report of the Kenya Land Commission, Her Majesty’s Stationery Office, 1934, 420. Carter, Report of the Kenya Land Commission, 420. See Carter, Report of the Kenya Land Commission. See for example Section 3, Judicature Act (Chapter 8, Laws of Kenya).

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mon property systems. Justice Ocran of Ghana once argued that the repugnancy clause has been used to impose and entrench western ideologies upon Africans. He observed as follows: The repugnancy clauses were meant to rule out laws and customs perceived to be against Christian values and morality or cruel and unusual standards of the colonizers. There were various formulations of these clauses. Some stated that the rules should not be repugnant to ‘natural justice, equity and good conscience’. Others read: ‘Not contrary to [religious] justice, morality and order.’ Still others read: ‘Not repugnant to morality, humanity or natural justice or injurious to the welfare of the natives.175

Although the Constitution of Kenya recognises African customary law, the Community Land Act defines customary land rights as ‘rights conferred by or derived from African customary law, customs or practices provided that such rights are not inconsistent with the Constitution or any written law.’176 Clearly, this establishes a hierarchy of sorts where written law seems to supersede customary law yet the Constitution places customary law at par with written laws.177 Considering the centrality of customary laws in regulating common resources, such provisions in law have the effect of causing disturbance and destabilising common property holding. They pave the way for the application of alien laws which are neither contextual nor fit for regulating common resources. One possible way out of this situation is to take the constitutional recognition of culture as the foundation of the nation as an indication of the position of customary law in the country and overlook the attempt by courts and parliament to continue the subjugation. Moreover, the ever-growing African population has led to the distortion and disruption of the lifestyles of many African communities, especially those practicing pastoralism, hunting and gathering, fishing and farming. Tribal boundaries erected during the colonial era, and those established to delineate boundaries of private property have contributed to the subjugation of African property arrangements.178 Further, increased urbanisation, globalisation and economic projects being undertaken by the government, have all contributed to displacement of communities which leads to the loss of their common property. This makes it tenuous to promote the African idea of property.

Ocran M ‘The clash of legal cultures: The treatment of indigenous law in colonial and post-colonial Africa’ Akron Law Review (2006), 480. 176 Section 2, Community Land Act (Act No. 27 of 2016). 177 Article 2(4), Constitution of Kenya (2010). 178 Maathai, The challenge for Africa, 227. 175

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4.0 Introduction Property is a recognised institution in all known societies1 and one of the most pervasive in human history. In virtually all societies, land (one of the main forms of property) is the source of political, social and economic power.2 As such, control over property provided the basis for political sovereignty, the foundation of social status, and the principal form of wealth.3 The institution of property continues to perform these functions in society today. Property fulfills its mandate in an all-encompassing manner. This is succinctly captured by Nestor when he observes that: ‘…property operates on several levels at once. On one level, property serves basic functions that are so familiar that we rarely pause to take note. Money enables exchange and investment; food provides sustenance; books entertain and inform; buildings shelter a myriad of significant and trivial aspects of life; and so forth. But all of these things - indeed all property, tangible and intangible – work in other ways at the same time. Property forms an underlying and important aspect of the self, helping to shape personality and individual autonomy. On yet another level, property serves as the connective tissue for communities, defining mutual obligations and setting the boundaries of social relation.’4

1 2

3 4

Bell A and Parchomovsky G, ‘A theory of property’ 90 Cornell Law Review (2005), 559. Sprankling J, Understanding property law, 2ed, Matthew Bender, New Jersey, 2007, 8. See also Republic of Kenya, Sessional Paper No. 3 of 2009 on National Land Policy, para 1, and, Africa Union (AU), African Development Bank (AfDB) and Economic Commission for Africa (ECA), Framework and guidelines on land policy in Africa, land policy in Africa: A framework to strengthen land rights, enhance productivity and secure livelihoods, AU/AfDB/ECA, Addis Ababa, 2010, 5. Sprankling, Understanding property law, 8. Davidson N, ‘Property and relative status’ 107 Michigan Law Review 5 (2009), 759.

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In this chapter, the multiple purposes served by property are examined and critiqued by discussing the following aspects: the economic function of property; property and human flourishing; property and personality; property and power; property and politics; the social function of property; property as status symbol; property and spirituality, and property and culture.

4.1 The economic function of property Property rights (especially private property rights) are necessary for the functioning of economics. Indeed, some hold the view that the constitution of property rights precedes economic activity5 and property rights underlie the language and working of economics.6 Therefore, a property rights framework is the basis of trade and markets.7 Without the property institution, there is bound to be market failure8 because of the assumption that well-defined property rights are essential in the allocation of goods and services in a free market to ensure efficiency.9 However, this is not to say that in non-free market economies, including the informal sectors, property rights and markets are non-existent and that market failure cannot occur. The institution of property in conferring the status of an ‘owner’ is essential in facilitating trade even when we talk of markets from the traditional African or informal context. Barter exchange as a form of trade was premised on goods that were the properties of those involved in the trade. As a result of this intercourse between property and economics, scholars have said that prosperity and property rights are inextricably linked concepts.10 It is argued, and rightly so, that when property rights are supported by other institutions such as contract, they incentivise people to create, innovate, and conserve resources.11 Consequently, property provides an appropriate mechanism for reward

Getzler J, ‘Theories of property and economic development’ 26 The Journal of Interdisciplinary History, 4 (1996), 639. 6 Cole D and Grossman P, ‘The meaning of property rights: Law versus economics?’ 78 Land Economics, 3 (2002), 317. 7 Tregarthen T and Rittenberg L, Economics, Worth Publishers, New York, 2000, 133. 8 Abraham A, Microeconomics: An aspect of development, Anchor Academic Publishing, Hamburg, 2015, 27. 9 Cole and Grossman, ‘The meaning of property rights’, 317. 10 O’Driscoll G and Hoskins L, ‘Property rights: The key to economic development’ 482 Policy Analysis (2003), 1. 11 Davidson, ‘Property and relative status’, 766. 5

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ing one’s effort in society.12 Thus, those who create, produce or innovate more are rewarded for their efforts by the property institution. One of the ways in which property law incentivises is by providing tenure security for acquired proprietary interests. Property law is also vital in resource allocation, which ultimately has implications for resource use and efficiency.13 According to Butler, Drahozal and Shepherd, property rights are socially enforceable rights determining and controlling the use of economic goods.14 For instance, property rights are important in the contractual transfer of resources, their use and management and in the resolution of disputes over resources.15 This way, the institution of property ensures there is efficiency in the use and management of resources. It is for this reason that Garret Hardin suggests the granting of private property rights to avoid the overexploitation of common resources.16 By facilitating efficiency in the use and transfer of goods and other resources, the institution of property also creates and confers value. The transferor of proprietary interests gets some benefit from the transfer (this could be the consideration in the sale), while the transferee may derive a benefit from the use of the transferred property.17 Owing to the significant role of an efficient property system in facilitating market exchange and efficient allocation of resources in a free market economy, a property system ought to have three attributes.18 First, it ought to be universal in the sense that every resource should be owned. Second, it should offer exclusivity, meaning that the owner of property may exclude all others from using it. And, thirdly, it should allow transferability by making it less costly for possessors of property rights to exchange their rights.19 Without such an efficient property system, the exchange of economic goods cannot take place as there would be uncertainty in the process. This is the case even where the demand for goods and services Boudreaux K, ‘The role of property rights as an institution: Implications for development policy’ Mercatus Policy Series, 2 (2005), 1. 13 Robson A, Law and markets, Palgrave Macmillan, Basingstoke, 2012, 1. 14 Butler H, Drahozal C and Shepherd J, Economic analysis for lawyers, 3ed, Carolina Academic Press, Durham, 2014, 18. 15 Merrill T and Smith H, ‘What happened to property in law and economics?’ 111 The Yale Law Journal, 2 (2001), 398. 16 Hardin G, ‘The tragedy of the commons’ 162 Science, New Series, 3859 (1968), 1247. 17 Butler, Drahozal and Shepherd, Economic analysis for lawyers, 18. 18 Butler, Drahozal and Shepherd, Economic analysis for lawyers, 18-19. 19 Butler, Drahozal and Shepherd, Economic analysis for lawyers, 18-19. 12

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exceeds the cost incurred in making them.20 This is the case since, as Richard Posner observes, without property rights there are no incentives for incurring transaction costs as there is no assured reward for incurring those costs.21 For that reason, property rights offer assurance to those transacting in property. Securing property rights creates incentives for incurring costs as one gets to know or anticipate that he will be entitled to the outcome.22 These incentives engender the efficient use of assets and facilitates their maintenance and investment.23 Property systems (especially common resources) in the traditional African context may not have the three attributes outlined above due to the communal holding of property. However, the values that underlie property holding in the commons aim at meeting the survival and livelihood needs of all the community members without depreciating the resources for future generations. As such the privatisation of common resources is likely to go counter the communal values and beliefs that underlie their holding. Nonetheless, personal property in the African context is not communal and can be traded in the market and the three attributes of property (exclusivity, transferability and universality) may create incentives as in the modern property markets. As the bedrock and foundation for trade and markets, the property institution enables those with secure property rights in goods and services to trade them voluntarily with others.24 This is the basis of the general rule in sale of goods that one cannot give a better title than he has. In addition, when proprietary interests are recognised and registered, they act as catalysts for economic growth by enhancing investment opportunities through access to capital and low cost credit.25 Accordingly, property becomes one of the building blocks of an economically prosperous nation. In Kenya, securing property rights of the people is cited as being essential for progress towards Vision 2030.26

Costs that affect the allocation of property rights are called transaction costs. These are the costs of acquiring information about alternative uses and of negotiating and enforcing contracts. Generally, if the potential benefits of a transaction are greater than the costs of reaching and enforcing a bargain, then a voluntary, mutually-beneficial exchange will result with the property rights being controlled by the parties that value them most. 21 Posner R, Economic analysis of law, 7ed, Aspen Publishers, New York, 2007, § 3.1. 22 Demsetz H, ‘Toward a theory of property rights’ 57 American Economic Review (1967), 347. 23 Lueck D and Miceli T, ‘Property law’ in Polinsky A and Shavell S (eds), Handbook of law and economics, Elsevier, Amsterdam, 2007, 186. 24 Boyes W, Managerial economics: Markets and the firm, Cengage Learning, Mason, 2012, 35. 25 Besley T, ‘Property rights and investment incentives: Theory and evidence from Ghana’ 103 The Journal of Political Economy, 5 (1995), 907. 26 Republic of Kenya, Kenya Vision 2030: First medium term plan, 2008 – 2012, 2008, 49. 20

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According to the value theory propounded by Abraham Bell, property creates value.27 As already explained, market transactions (which are facilitated by the property institution) confer benefits (value) to both the buyers and sellers of goods and services. Additionally, value is created when property law creates the status of an owner.28 Property relations give owners value (as discussed elsewhere in this book, the incidence of ownership confers on the owner certain powers, rights and privileges). Such value would not exist without a recognised property relationship.29 It is for this reason that Bell posits that the institution of property creates and defends value inherent in stable ownership.30 Property accomplishes this function by creating and protecting the relationship between a person and assets.31 A property system with stable rights increases the value of assets to users or owners and decreases the costs of obtaining and defending those rights. Property is therefore a utility-enhancing institution.32

4.2 Property and human flourishing Some theorists explain that the moral foundation of property (especially private property) is human flourishing.33 Human flourishing implies that a person has the opportunity to live a life as fulfilling as possible.34 Human flourishing is characterised by individual autonomy, personal security/privacy, personhood, self-determination, community and equality.35 According to Allison the three critical pillars to human flourishing are knowledge, capital and incentives.36 It is thus contended, that property as an incentivising institution makes people innovate, invest and create jobs, thus promoting human flourishing.37 29 30 31 32 33 27 28

36 34 35

Bell and Parchomovsky, ‘A theory of property’, 531. Davidson, ‘Property and relative status’, 757. Bell and Parchomovsky, ‘A theory of property’, 553. Bell and Parchomovsky, ‘A theory of property’, 553. Penner J, The idea of property in law, Clarendon Press, Oxford, 1997, 32-67. Bell and Parchomovsky, ‘A theory of property’, 538. Alexander G, ‘Ownership and obligations: The human flourishing theory of property’ Cornell Law Faculty Publications, 653 (2013), 1. Alexander, ‘Ownership and obligations’, 1. Alexander, ‘Ownership and obligations’, 3. Allison J, The leadership crisis and the free market cure- why the future of business depends on the return to life, liberty, and the pursuit of happiness, McGraw-Hill Education, New York, 2014, 49-56. Reinert K,Rajan R, Glass A,Davis L (eds), The Princeton encyclopedia of the world economy, Princeton University Press, Princeton, 2010, 264.

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Securing property rights, therefore, promotes human flourishing by providing individuals with increased autonomy and control over resources.38 Private property, for instance, potentially fosters individual autonomy by providing increased spheres for personal expression.39 In this connection, some commentators have observed that individual autonomy and property are deeply intertwined. To them, property is a reflection of an individual’s decisions with respect to his life and it provides the material substratum for constructing one’s identity and expressing moral commitments.40 Again, property is also seen as an extension of the self, making it very difficult to draw a line between oneself and one’s property.41 Friedman explains it clearly thus, We feel and act about certain things that are ours very much as we feel and act about ourselves... In its widest possible sense, however, a man’s Self is the sum total of all that he CAN call his, not only his body and his psychic powers, but his clothes and his house, his wife and children, his ancestors and friends, his reputation and works, his lands and horses, and yacht and bank-account. All these things give him the same emotions. If they wax and prosper, he feels triumphant; if they dwindle and die away, he feels cast down- not necessarily in the same degree in each thing, but in much the same way for all.42

This ‘self-extension’ role of property manifests itself throughout an individual’s life, and helps promote human autonomy.43 For example, empirical evidence shows that in a child’s life, possessions are integrated with the child’s developing concept of self as they offer a very high degree of contingent control, almost as great as the control one experiences over one’s body.44 Property also helps people remember aspects of their self when they are old.45 Property also facilitates memory retention through pictures.46 However, there are scholars such as Amartya Sen who Boudreaux, ‘The role of property rights as an institution’, 15. See Baker C, ‘Property and its relation to constitutionally protected liberty’ 134 University of Pennsylvania Law Review (1986), 744, stating that: ‘People rely on, consume, or transform resources in many of their self-expressive, developmental, productive, and survival activities . . .’ 40 Foster S and Bonilla D, ‘The social function of property: A comparative law perspective’ 80 Fordham Law Review (2011), 101. 41 Friedman M (ed), Essays in positive economics, Chicago University Press, Chicago, 1953, 62. 42 Friedman, Essays in positive economics, 62. 43 Bloom L, ‘People and property: A psychoanalytic view’ in Rudmin F (ed), ‘To have possessions: A handbook on ownership and property’ 6 Journal of Social Behavior and Personality, 6 (1991), 427. 44 Furby L, ‘The origins and early development of possessive behavior’ 2 Political Psychology (1980), 35. 45 Dittmar H, The social psychology of material possessions: To have is to be, St. Martin’s Press, New York, 1992, 115-116. 46 See Csikszentmihalyi M and Rochberg-Halton E, The meaning of things: Domestic symbols and the self, Chicago University Press, Chicago, 1981. 38 39

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posit that human flourishing has nothing to do with one’s possessions but what one is able to do. He calls this ‘capabilities’ and the capabilities include freedom, practical reasoning and sociability.47 Sen posits that the most important thing to possess is the substantive powers or capabilities to engage in valued activities as opposed to just accumulating material possessions.48 Accumulating material possessions does not complete human flourishing. It is essential that the material possessions enable the individual to engage in activities of value and things they have reason to value. The things that people value vary49 from the basic, for example, being fed, to complex issues such as being able to take part in the political life of society. Even though the essential capabilities necessary for one to lead a well-lived life are not settled, there are those which are deemed less controversial, for example, life, freedom, practical reason and sociability or affiliation.50 Therefore, property that one acquires is only important if it empowers an individual with the capabilities ‘to choose a life of human dignity.’51

4.3 Property and personality Personality here could mean personhood, the status of being a person and can thus extend to both moral and political personhood.52 Property is conducive to personality.53 Firstly, property rights are an independent component of moral and political personhood. Claiming something as one’s own is to claim a right over it. This presupposes that the claimant is an entity that can claim rights as a moral and political agent.54 Secondly, property rights can lead to the guarantee of other moral and political rights. Currently, a close linkage is drawn between property See generally, Sen A, Commodities and capabilities, North-Holland, Amsterdam, 1985. See also Sen A, Development as Freedom, Anchor Books, New York, 1999. 48 Sen, Commodities and capabilities, 10-11. 49 Nussbaum M,Women and human development: The capabilities approach, Cambridge University Press, Cambridge,2000, 87-88. 50 Alexander GS and Peñalver EM, An introduction to property theory, Cambridge University Press, Cambridge, 2012, 89. 51 Alexander and Peñalver, An introduction to property theory, 89 52 Munzer S, A theory of property, Cambridge University Press, Cambridge, 1990, 81-82. Moral personhood is one that a person has simply by virtue of being a human being and having a rational nature. Political/legal personhood is conferred by positive law and could extend to a juristic entity, like a company, a parastatal et cetera. Such a legal person may have rights, for example, to hold and sell property. 53 Munzer, A theory of property, 81. 54 Munzer, A theory of property, 81. 47

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rights and the rights to food, water, sanitation and housing. Consequently, denial of these rights occasions violations of many other rights including the right to education, life, culture, religion, freedom of expression, association, vote, bail or bond, amongst other rights. It is, thus, safe to say that property promotes personality by sheltering other economic, social, cultural and political rights.55 Be that as it may, it is also plausible to argue that some of the economic and social rights are not just about property rights, but they are also about the assertion of human rights beyond ownership or any other right explaining why we have the two 1966 covenants - the International Covenant on Civil and Political Rights (ICCPR)56 and the International Covenant on Economic Social and Cultural Rights (ICESCR).57 For instance, we are all entitled to the right to health care and to a clean and healthy environment whether we have the money (private property) for it or not. It is on this basis of private property rights that the US has always rejected universal healthcare and why they call President Obama a communist for Obamacare.58 Yet universal healthcare is not a communist issue as western Europeans countries have it and they are capitalist while China and the Soviets never did under communism. Personality is also awareness of individuating characteristics.59 Owning property is seen as having more individuating characteristics. In other words, as one acquires more property, they increase in self-awareness. A claim is also made that the rise of self-awareness corresponds with the rise of the institution of private property although there are doubts about these claims. For example, if all houses, cars, clothes and so on are the same, it is doubtful whether private property would heighten awareness of individuating characteristics. The reverse is also true, if there is no private property, but the society supports individual efforts to develop talents to accentuate personal appearance; less private property may not lead to less self-awareness.60 Property also plays a central role in the realisation of human freedom.61 The realisation of free will is tied to the manifestation of one’s will regarding external Munzer, A theory of property, 81-82. For instance, those with property can use the property to easily secure other rights like access to water, health, shelter, food, education and the right to make decisions. 56 16 December 1966, 999 UNTS 171. 57 16 December 1966, 993 UNTS 3. 58 See ‘Robin Holland: Towards a healthier debate on health reform’ Public Broadcasting Service, 14 August 2009 http://www.pbs.org/moyers/journal/blog/2009/08/towards_a_healthier_debate_on.html on 26 September 2016. 59 Munzer, A theory of property, 83. 60 Munzer, A theory of property, 83. 61 Pipes R, Property and freedom, Alfred A Knopf, New York, 1999. 55

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objects, therefore necessitating the right to property.62 By exercising the right to property, one gives free will a stable environment to be with others having such wills.63 According to Hegel, individuals need private property to sustain and develop abilities and self-conceptions that are definitive of their statuses as persons.64 Moreover, people ‘embody’ the freedom of their personalities in external objects so that their conceptions of themselves as persons can cease to be purely subjective and become concrete and recognisable to themselves and others in a public and external world.65 On her part, Margaret Jane Radin argues that one needs to assert control over property in order to realise an individuated sense of self.66 She contends that the personhood of the individual is manifested in property such that the loss of some property more expressive of oneself is more hurtful than the loss of other property less expressive of the self.67 She goes on to typologise property based on this aspect into ‘personal’ and ‘fungible’ property.68 She thus advocates the legal protection of personhood that is expressed in property.69 It is important to note that both the economic and personhood views of property are mainly inward-looking. The economic approach takes demand as being endogenous, while the study on personhood and property asserts the individual will on the outside world.70 However, the communitarian approach, which examines property as a creator of social relations,71 centres on the interconnection of the relationships and obligations that arise.72

Stillman P, ‘Property, freedom and individuality in Hegel’s and Marx’s political thought’ in Pennock J and Chapman J (eds), Nomos XXII: Property, New York University Press, New York, 1879, 130-131. 63 Waldron J, The right to private property, Clarendon Press, Oxford, 1988, 378. 64 Hegel F, Philosophy of right, Knox T (trans), Oxford University Press, Oxford, 1942, 40-57. 65 Waldron, The right to private property, 353. 66 Radin M, ‘Property and personhood,’ 34 Stanford Law Review (1982), 957. 67 Radin, ‘Property and personhood’, 959. 68 Radin, ‘Property and personhood’, 986-988. 69 Radin, ‘Property and personhood’, 1013-1015. 70 Waldron, The right to private property, 375-377. 71 Munzer S, ‘Property as social relations’ in Munzer S (ed), New essays in the legal and political theory of property, Cambridge University Press, Cambridge, 2001, 36. 72 Sax J, ‘Takings, private property and public rights’ 81 Yale Law Journal (1971), 152, (“Particular parcels are tied to one another in complex ways, and property is more accurately described as being inextricably part of a network of relationships that is neither limited to, nor usefully defined by, the property boundaries with which the legal system is accustomed to dealing.”). 62

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4.4 Property and power Those with more property have more power which can be used to occasion harm to those with less or no property. A good example is the property relations established by colonial powers throughout Africa which have continually led to the alienation of African peoples’ territories and the expropriation and destruction of their traditional governance systems.73 Power relations (as a legacy of the colonial property relations) are still manifest with the existence of a duality in property governance in most of Africa. This duality manifested itself in the early days of colonialism in Kenya in the following ways:74 (i) the existence of systems of land tenure based on principles of English property law, on one hand, and, on the other, a largely neglected regime of customary property law; private tenure and communal tenure; (ii) a structure of land distribution characterised by large holdings of high potential land, on the one hand, and a highly degraded and fragmented small holdings on the other; (iii) an autonomous and producer-controlled legal and administrative structure for the management of the European sector, as opposed to a coercive control structure for the African areas; and (iv) a policy environment designed to facilitate the development of the European sector of the economy by under-developing its African counterpart. It is, thus, apparent that problems in production relations exist because those with more property have the power to control the labour force. This leads to exploitation of the labourers and can even occasion land alienation. Yanis Varoufakis, in The Global Minotaur, while writing about the causes of the financial crisis observes as follows with respect to commodification and the accompanying power implications: During the past three hundred years or so, the world changed fast and furiously. Commodification began when the peasants were fenced off their ancestral lands. Later, it accelerated when the expelled peasants’ labour was immured behind factory walls. Once human labour was blended with the labour of steam engines and mechanical looms, See Okoth-Ogendo H, ‘The tragic African commons: A century of expropriation, suppression and subversion’ 1 University of Nairobi Law Journal (2003). 74 Republic of Kenya, Report of the Commission of inquiry into the land law system of Kenya on principles of a national land policy framework, constitutional position of land and new institutional framework for land administration, 2002, 29-30. 73

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an unstoppable stream of commodities oozed out, spreading to the four corners of the planet. Since then commodification has taken the world by storm. Today, its tentacles have reached into the microcosm, patenting genomes and claiming hybrid organisms as someone’s ‘property’. Given time, it will privatize the moon and the planets, even the sun and the stars. Yet, its most significant intervention in society’s functioning came early on. From the very beginning, commodification gave rise to an inversion in the productiondistribution cycle. Whereas in the past production always preceded the harvest’s division between those who laboured to produce it and the powerful elites who claimed part of it on the basis of some socially established convention, the commodification of land and labour meant that the labourers’ share was paid in advance (in the form of wages). Distribution, therefore, began even before the harvest was in.75

Varoufakis captures succinctly the connection between land (property) ownership and the power or control that property owners can have over labourers (poor people) and their resources. Essentially, the economic, social and political fate of the labourers was determined when their resources were alienated from them. Why is the linkage between property and power necessary? Part of the answer is in the contention that great differences in property holdings can produce great imbalances of power, which in turn can thrust those who have little into dire straits. This becomes even more insidious, when people try to defend the resulting state of affairs (particularly in the case of land), by referring to original acquisition.76 Regarding the problem of original acquisition, Karl Marx observes as follows in Capital: This primitive accumulation plays in political economy about the same part as original sin in theology….In times long gone by there were two sorts of people: one, the diligent, intelligent, and, above all, frugal elite; the other, lazy rascals, spending their substance, and more in, riotous living….Thus it came to pass that the former sort accumulated wealth, and the latter sort had at last nothing to sell except their own skins. And from this original sin dates the poverty of the great majority that, despite all its labour, has up to now nothing to sell but itself, and the wealth of the few that increases constantly although they have long ceased to work. Such insipid childishness is every day preached to us in the defence of property.77

Closely related to the issue of power and property is the role of property in shaping politics, which is discussed hereunder.

Varoufakis Y, The global minotaur: America, the true origins of the financial crisis and the future of the world economy, Zed Books, London, 2011, 54. 76 Munzer, A theory of property, 178. 77 Marx K, Capital: A critique of political economy, vol 1, Charles H Kerr & Co, Chicago, 1906, 713-714. 75

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4.5 Property and politics Property and politics are related and interwoven. Property is one of the determinants of social ordering.78 For example, land is not only property, but is territory over which a State asserts and exercises its jurisdiction.79 Therefore, political sovereignty is dependent upon ownership of land.80 It is also claimed by some scholars that property promotes the kinds of virtues and virtuous people that communities and states need to function well.81 For example, they contend that those who own land in a given society have a stake in its welfare and are more likely to promote and defend it. It is argued that this is because they (the landed gentry) can rise above daily struggles, to contemplate the common good.82 Additionally, one of the core purposes of property is the provision of a prior normative vision of how society and the polity that governs are to be structured.83 In this context, property takes a central place in forging the social contract.84 The governed cede some rights to the government in return for protection of other rights. One of these rights is the right to property, which is a common feature of national constitutions85 and international human rights instruments.86 The constitutional right to property is rationalised as one of the preconditions of a fair democratic system for the determination of the principles of social ordering through public decision-making.87 See Chapter Three on Property in Traditional African Society. Property played a key role in ensuring that societies were stable and social relations were intricately hinged on land. 79 See Article 5 of the Constitution of Kenya (2010) which delineates the territory of Kenya in relation to land. See also Article 1, Convention on the Rights and Duties of States, 26 December 1933, 165 LNTS 19, which provides that a state should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states. 80 Penner, The idea of property in law, 152. 81 Alexander G and Peñalver E, Property and community, Oxford University Press, Oxford, 2010, xxvi. 82 Acemoglu D, Robinson J and Johnson S, ‘Institutions as the fundamental cause of long-run growth’ National Bureau of Economic Research Working Paper, 10481 (2004), 16-17. 83 See generally Alexander G, Commodity & propriety: Competing visions of property in American legal thought, University of Chicago Press, Chicago, 1997. 84 Locke J, Second treatise of government, Bennett J (eds), 2010, 11, 17, 18. 85 See, for example, Article 40, Constitution of Kenya (2010); Section 25, Constitution of the Republic of South Africa 91996); and Amendment V, Constitution of the United States (1789). 86 See, for example, Article 14, African Charter on Human and Peoples’ Rights, 27 June 1981, 1520 UNTS 217; and Article 17, Universal Declaration of Human Rights, 10 December 1948, 217 A (III). 87 Michelman F, ‘Process and property in constitutional theory’ 30 Cleveland State Law Review (1982), 578. 78

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One of the most importantly sought aspirations of humanity is freedom in every sphere of life. Governance is structured in line with this goal. The right to property is one of the quintessential rights in achieving freedom. It is an essential component of individual competence in social and political life and is necessary for self-determination and self-expression.88 Courts have commented on the falsity of the dichotomy between personal liberties and property rights.89 A fundamental interdependence exists between the personal right to liberty and the personal right to property. Neither can have meaning without the other.90 Throughout history, different property institutions have been responsible for inspiring passion and revolutions. Dissatisfaction with then-existing institutions of property played a role in the French Revolution of 1789 and the Russian Revolution of 1917.91 During the American Revolution, also, property was the basis for liberty as it made men independent from the influence of others,92 since even voting was at times contingent on property. Ortiz explains that qualifications based on property were thought to be vital as they ensured that voters had a stake in political matters and exercised independent political judgment.93 Property was also central in the fight for the emancipation of African-Americans. It was then argued that freedom without social, economic and political empowerment was not true freedom. According to Walker: 94

Such freedom, being reducible to mere emancipation, can be a wandering in the wilderness experience to which, at least to some members of the exodus drama, even slavery might be preferred. Freedom or liberty, rightly conceived, is inclusive of both emancipation and comprehensive social-economic-political empowerment.95

Martin Luther King Jr., shared similar views of freedom. He likened the black Americans after the 1863 emancipation to a ‘motherless child’ in highlighting the inadequacy of emancipation without empowerment.96 He observed as follows: Michelman F, ‘Mr. Justice Brennan: A property teacher’s appreciation’ 15 Harvard Civil Rights-Civil Liberties Law Review (1980), 304. 89 See Lynch v Household Finance Corp., 405 US 538, 552 (1972). 90 Lynch v Household Finance Corp, 405 US 538, 552 (1972). 91 Munzer, A theory of property, 2. 92 Hoerder D, Crowd action in revolutionary Massachusetts, 1765-1780, Academic Press, New York, 1977, 371. 93 Ortiz D, ‘The democratic paradox of campaign finance reform’ 50 Stanford Law Review (1998), 907. 94 Walker T, Empower the people: Social ethics for the African-American church, Orbis Books, New York 1991, 23. 95 Walker, Empower the people, 23. 96 King ML Jr. Lecture at Stanford – ‘The other America’ 1967 https://www.youtube.com/watch?v=m3H978KlR20 on 18 July 2015. 88

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With all the beautiful promise that Douglass saw in the Emancipation Proclamation, he soon found out that it left the Negro with only abstract freedom. Four million newly liberated slaves found themselves with no bread to eat, no land to cultivate, no shelter to cover their heads. It was like freeing a man who had been unjustly imprisoned for years, and on discovering his innocence sending him out with no bus fare to get home, no suit to cover his body, no financial compensation to atone for his long years of incarceration and to help him get a sound footing in society; sending him out with only the assertion: ‘Now you are free.’ What greater injustice could society perpetrate? All the moral voices of the universe, all the codes of sound jurisprudence, would rise up with condemnation at such an act. Yet this is exactly what America did to the Negro. In 1863 the Negro was given abstract freedom expressed in luminous rhetoric. But in an agrarian economy he was given no land to make liberation concrete... the Negro, was denied everything but a legal status he could not use, could not consolidate, could not even defend. As Fredrick Douglass came to say, ‘Emancipation granted the Negro freedom to hunger, freedom to winter amid the rains of heaven. Emancipation was freedom and famine at the same time.’97

Similarly, in colonial Africa, quests for emancipation from the colonial rule were rife and land played an important role in this.98 To establish colonial rule and enterprise ownership of land and land-based resources had to be vested in the crown marking the beginning of dispossessions, oppression, domination and subversion of African ways of life. Because of these wrongs, Africans waged the war for independence. Independence struggles in most of Africa were largely hinged on the quest by Africans to get back land that had been taken by the colonial settlers. In certain cases, these struggles turned violent as Africans took up arms to oppose colonial domination. In settler-dominated colonies such as Kenya, Zimbabwe, South Africa, Angola and Algeria armed guerrilla warfare was common and the land question in these countries has remained emotive and a hotly contested political issue. In modern political life, property still plays a great role. It enables humanity to dispense with social ordering functions efficiently. The US Supreme Court asserted this position when it found that property rights facilitate the ‘interchange of ideas for the bringing about of political and social changes desired by the people.’99 The Court was making a determination on the constitutionality of limiting funds that candidates can have in running campaigns for political positions. The Court’s rationale was that property rights ensure people as citizens and candidates, and

King ML, Where do we go from here: Chaos or community, Beacon Press, Boston, 1967, 79. In Kenya, for example the Mau Mau movement fight against the British to get back African land that had been seized by the whites. 99 Buckley v Valeo, 424 US 1, 14 (1976) (quoting Roth v United States, 354 U.S. 476, 484 (1957)). 97 98

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collectively as associations and political committees, and retain control over the quantity and range of debate on public issues in a political campaign.100 For most African states, the question of land and natural resource distribution is still alive more than 50 years after independence. In South Africa, for example, it has been observed that resolving the land question is at the heart of the quest for liberation from political oppression, rural poverty and under-development.101 In contemporary Kenya, the land problem is the cause of numerous conflicts and violence experienced in different parts of the country.102 The land reform discourse in Kenya has also been heavily influenced by politics because of the high stakes involved and the emotive nature of the land issue.103

4.6 Social function of property Property performs or has a social function. It is for this reason that justifications for granting property rights must extend beyond an individual owner to the wider society. Property justifications must explain not just why one should be granted property rights, but also why others should recognise one’s property entitlements. Using land, Bell explains how its value emanates from its natural features, improvements by the owner and activities of the surrounding community. As such, and in line with the labour theory, a landowner’s entitlement should only be the improvements made to the land as its value is equally contributed by the community and its natural features.104 Such cases are common in cities, where you can find houses that are located in suburb areas fetching considerably higher places than similar houses in rural areas. For social-relations theorists, property is a creator of social relations.105 They prefer to privilege one party over another on questions of property in order to foster Buckley v Valeo, 424 US 1, 57 (1976). Hanekom D, ‘Speech to be Delivered by Mr. Derek Hanekom MP, Minister of Land Affairs, on the Occasion of the Budget Presentation of the Department of Land Affairs (hereafter DLA): National Assembly, 9 September 1994’ (unpublished document, copy in Legal Resources Centre Library, Cape Town) as cited in Walker C, ‘The limits to land reform: Rethinking “the land question”’ 31 Journal of Southern African Studies, 4 (2005), 805. 102 Syagga P, ‘Public land, historical land injustices and the new Constitution’ Society for International Development, Constitution Working Paper, 9 (2011), 14. 103 Syagga, ‘Public land, historical land injustices and the new Constitution’, 1. 104 Bell and Parchomovsky, ‘A theory of property,’ 561. 105 See generally Munzer, ‘Property as social relations.’ 100 101

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mutual obligations.106 This is because property ownership creates social responsibilities and obligations,107 as well as interpersonal responsibilities and obligations.108 These relations are characterised by expectations109 between the property owner, other individuals and the community at large. It also gives rise to boundaries between the owner and other individuals, the community and the state.110 The social-relations theorists attribute great importance to the social nature of the human being. They posit that property exists to foster flourishing associated with man’s social character.111 The Aristotelian and Thomistic schools of thought, on the individuals being intrinsically social, are employed in this regard.112 Property, then, becomes a means of joining individuals to each other in community, and reflects a deep human need for stable companionship and sociability.113 This view sharply contrasts with the Lockean conception of property as being absolute.114 To the social-relations theorists, property is primarily a question of the arising or resultant relations between the owner and other individuals and the community, rather than the owner being free from state regulation. Thus, property ownership imposes limits and certain obligations to other individuals and the wider society. As such, this conception of property does not agree with the idea of property rights first being stable.115 The communitarian approach to property relations in Africa better illustrates the social function of property. It is reported that sharing in Africa is an act of prayer that bonds the community together in acknowledging the giftedness of God.116 It is regarded immoral or sinful not to share food, clothing and housing with those who are needy.117 The obligation of hospitality to visitors and strangers better explains this view. Visitors and travellers are welcomed without question or reservation, and

See generally Alexander, Commodity and propriety. Alexander G, ‘The social-obligation norm in American property law’ 94 Cornell Law Review (2009), 747. 108 Singer J, ‘The reliance interest in property’ 40 Stanford Law Review (1988), 611. 109 Singer, ‘The reliance interest in property’, 611. 110 Cooper D, ‘Opening up ownership: Community belonging, belongings, and the productive life of property’ 32 Law and Social Inquiry (2007), 629-630. 111 Nedelsky J, ‘Law, boundaries and the bounded self’ 30 Representations (1990), 162. 112 See Peñalver E, ‘Property as entrance’ 91 Virginia Law Review (2005). 113 Peñalver, ‘Property as entrance’, 1894. 114 Singer J, Entitlement: The paradoxes of property, Yale University Press, New Haven, 2000, 207-208. 115 Davidson, ‘Property and relative status’, 773. 116 Magesa L, What is not sacred? African spirituality, Acton Publishers, Nairobi, 2014, 96. 117 Magesa, What is not sacred? 96. 106 107

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accorded the best possible treatment.118 Moreover, those in leadership are under a high duty to share wealth with the subjects. It is reported that: A leader is particularly obliged to share wealth on a wider scale than this or her subjects as a sacred duty, because in so doing the community as a whole coalesces around him or her and receives blessings. By sharing, the ruler literally passes on life, the energy of the ancestors, to the beneficiaries, all of the ruler’s subjects, and confirms Ubuntu among them.119

The social function of property in Africa is also evident in the contraction of marriages, particularly in its polygamous form. Marriage is seen as a way of expanding the material power of the clan, apart from broadening the population base of family and the clan.120 A marriage is not complete without the exchange of material things, in the form of bride wealth.121 Friendship is another much valued convention in African social-spiritual property relations. Without friends an individual is regarded a very poor person, because he lives in a very limited, constricted and constricting world in terms of material resources and mystical energies.122 This is quite true in view of the communal values of sharing and reciprocity, which are properly and effectively practised when people are living in community.

4.7 Property as status symbol Property creates a certain status providing that an asset ‘belongs’ to the owner.123 It defines the meaning of this status. When the “thing” belongs to the owner, the owner enjoys a given group of rights, powers and privileges not enjoyed by others.124 Nestor makes the observation that apart from the economic, political and social roles of property, property does something equally important which he refers to as the ‘status-signalling function of property.’ He observes that, ‘...property does something equally fundamental: it communicates... And perhaps the most ubiquitous and important messages that property communicates have to do with relative status, with the material world defining and reinforcing a variety of economic, social,

120 121 122 123 124 118 119

Magesa, What is not sacred? 96. Magesa, What is not sacred? 96. Magesa, What is not sacred? 97. Magesa, What is not sacred? 97. Magesa, What is not sacred? 97. Davidson, ‘Property and relative status’, 773. Davidson, ‘Property and relative status’, 774.

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and cultural hierarchies. This status-signalling function of property–with property serving as an important locus for symbolic meaning through which people compare themselves to others–complicates premises underlying central discourses in contemporary property theory. In particular, status signalling can skew property’s incentive and allocative benefits, leading people to over-invest in status-enhancing property and undermining welfare gains associated with trades around property.’125

The status signalling function of property is traceable to feudal England,126 where the land tenure system embodied a status hierarchy beginning with the king at the top and running down to the villeins.127 Owning property meant having a position in the feudal pyramid which came with duties and rights. Even as feudalism ended and modern legal systems developed, the situation did not change. The relation between status and property was manifest128 and played a great role in the fight for democratization by labourers.129 The lower class fought for their freedom130 making this the subject of investigation by some of the enlightenment and later thinkers.131 David Hume, an enlightenment thinker, found out that property gave rise to pride132 and enabled comparison with other individuals.133 John Locke also noted that some goods and services are demanded partly due to their high prices134 and the desire for luxury.135 For Jean Jacques Rousseau, another enlightenment thinker, the main ingredients in the relation between property and status are artificial desire and comparison.136 He stated that from property arose ‘the burning passion to increase one’s relative fortune less out of real need than to make oneself Davidson, ‘Property and relative status’, 757. McCracken G, Culture and consumption: New approaches to the symbolic character of consumer goods and activities, Indiana University Press, Bloomington, 1988, 10 - 22. 127 Lieberman D, ‘Property, commerce, and the common law: Attitudes to legal change in the eighteenth century’ in Brewer J and Staves S (eds), Early modern conceptions of property, Routledge, London, 1995, 144. 128 Taylor C, Sources of the self: The making of the modern identity, Cambridge University Press, Cambridge, 1989, 11-12. 129 Somers M, ‘The ‘mysteries’ of property in early modern conceptions of property’ in Brewer J and Staves S (eds), Early modern conceptions of property, Routledge, London, 1995, 1995, 62-63. 130 Taylor, Sources of the self, 11-13. 131 Smith W, Consumption and the making of respectability, 1600-1800, Routledge, New York, 2002, 2526. 132 Hume D, A treatise of human nature, Selby-Bigge LA (ed), Clarendon Press, Oxford, 1888, 309, (‘[T] he relation, which is esteemed the closest, and which of all others produces most commonly the passion of pride, is that of property’). 133 Hume, A treatise of human nature, 375. 134 Rudmin F, ‘Ownership as interpersonal dominance: A history and three studies of the social psychology of property’ Unpublished Doctoral Thesis, Queen’s University, March 1988, 49. 135 Rudmin, ‘Ownership as interpersonal dominance’, 49. 136 Rudmin, ‘Ownership as interpersonal dominance’, 15. 125 126

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superior to others.’137 To Adam Smith, status comparison is responsible for wealth accumulation and gives rise to modern capitalism. He states that: It is because mankind are disposed to sympathize more entirely with our joy than with our sorrow, that we make parade of our riches, and conceal our poverty. Nothing is so mortifying as to be obliged to expose our distress to the view of the public, and to feel, that though our situation is open to the eyes of all mankind, no mortal conceives for us the half of what we suffer. Nay, it is chiefly from this regard to the sentiments of mankind that we pursue riches and avoid poverty.138

Smith also makes the finding that the status sought appears unreachable because it is always changing in regard to the time, practices and other factors.139 Regarding necessaries he observes that they are ‘...not only the commodities which are indispensably necessary for the support of life, but whatever the custom of the country renders it indecent for creditable people, even of the lowest order, to be without.’140 Stuart Mill states that once the means of living have been obtained, the far greater part of the remaining labour and effort on earth seeks to acquire the respect or the favourable regard of mankind.141 Further, Mill observes that a great portion of the expenses of the higher and middle classes in most countries are incurred out of regard to opinion142 and that these expenses are wasteful and ought to be taxed.143 For Marx, private property is at the core of social power and class distinction in society.144 To explain this point Marx gives the following example, ‘...a house may be large or small; as long as the neighbouring houses are likewise small, it satisfies all social requirements for a residence. But let there arise next to the little house a palace, and the little house shrinks to a boat.’145

To address this problem, Marx advocated the abolition of private property.146 Emile Durkheim, a contemporary author on this matter, is of the opinion that Rousseau J, On the origin of inequality, Cole G (trans), Cosimo Classics, New York, 2005, 66. Smith A, The theory of moral sentiments, George Bell & Sons, London, 1875, 70. 139 Smith A, An inquiry into the nature and causes of the wealth of nations, Campbell R and Skinner S (eds), Clarendon Press, Oxford, 1976, 869-870. 140 Smith, An inquiry into the nature and causes of the wealth of nations, 869-870. 141 Mill JS, Three essays on religion, photo and reprint 1962, Henry Holt & Co, New York, 1874, 87. 142 Mill JS, Principles of Political Economy, Ashley W (ed), Longmans, Green, & Co, London, 1909, 869. 143 Mill, Principles of Political Economy, 869. 144 Marx K and Engels F, Manifesto of the communist party, Engels F (ed), International Publishers, New York, 1933, 24 – 25. 145 McAdams R, ‘Relative preferences’, 102 Yale Law Journal, 1 (1992), 11. 146 Marx and Engels, Manifesto of the communist party, 23-25. 137 138

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property constitutes some of the things assigned meaning through social rituals.147 People realise their sense of individualism through interactions with objects and other people. According to Herbert Blumer, people act toward things on the basis of the meanings that the things have for them.148 The actions of individuals are determined by their surroundings. They are a result of ‘what lies in between, a reflective and socially derived interpretation of the internal and external stimuli that are present.’149 The way we think of ourselves before others plays a significant role. Horton describes this using what he refers to as the ‘looking-glass’ self150 to explain the way we structure our identity in response to the reactions of others. Property comes in as a tool of communication of these messages. It is “an unusually cunning and oblique device for the representation of fundamental cultural truths.”151 Property accomplishes this task by sending out information that would otherwise be difficult to communicate.152 However, property is certainly not the only way of defining oneself and communicating to the outside world but it is evident that it plays a crucial part in this function. Amongst traditional African communities also, property played a status signalling role. In most African communities, the more wives (in most communities wives were viewed as part of the husband’s property) and children a family had, the more wealth, prosperity and status that man had.153 Such wealthy men could in most communities become elders and tribal leaders in society.

4.8 Property and spirituality The spiritual role of property has been discussed in Chapter Three. From the discussions in the preceding chapter, it is evident that property is spiritually significant especially from an African perspective. Certain properties in the African context are designated as shrines, forests, rivers, wells or holy grounds. Such spaces and properties are highly regarded spiritually and include the mugumo tree among Rudmin, ‘Ownership as interpersonal dominance’, 53. Blumer H, Symbolic interactionism: Perspective and method, University of California Press, Berkeley, 1969, 2. 149 Meltzer B, Petras J and Reynolds L, Symbolic interactionism: Genesis, varieties and criticism, Routledge, London, 1975, 2. 150 Cooley C, Human nature and the social order, Transaction Books, New Brunswick, 1983, 168-210. 151 McCracken, Culture and consumption, 68. 152 Dittmar, The social psychology of material possessions, 65. 153 Elechi O, Doing justice without the state: The Afikpo (Ehugbo) model, Routledge, New York, 2006, 148. 147 148

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the Gikuyu people and the kayas among the Mijikenda. Among certain communities like the Luo, custom necessitated that the land be acceptable to the gods before one could establish their home on it.154 This indicates the intricate connection that existed between the community, land and the spirits.

4.9 Property and culture Cultural property has traditionally referred to property having a distinct connection with a specific culture/identity seen to go over and above other forms of property.155 Property is indispensable to culture. It forms the basis of inheritance, spiritual life, and the preservation of shared values, knowledge and other aspects.156 The Elgin Marbles case offers a classic example. The Earl of Elgin sold sculptures to the British Museum between 1801 and 1812 at a high price.157 Efforts by the Greek Government to have the sculptures repatriated have borne no fruit.158 Explaining the cultural value and worth of the sculptures, a Greek Minister, Melina Mercouri, firmly stated that: [T]hey are the symbol and the blood and the soul of the Greek people [W]e have fought and died for the Parthenon and the Acropolis... [W]hen we are born, they talk to us about all this great history that makes Greekness. [T]his is the most beautiful, the most impressive, the most monumental building in all Europe and one of the seven miracles of the world.159

Cultural property encompasses both the tangible and the intangible. Earlier definitions of cultural property were limited to tangible forms only. For example, John Henry Merryman defined cultural property as ‘objects of artistic, archaeological, ethnological, or historical interest.’160 However, more recent definitions cover Abonyo D “Cultural aspects of housing: A case of the Luo in Kisumu Town, Kenya” XXXIII IAHS World Congress on Housing, Pretoria, 26 - 30 September 2005. 155 Underkuffler L, The idea of property: Its meaning and power, Oxford University Press, Oxford, 2003, 110. 156 World Intellectual Property Organization, ‘Customary Law and Traditional Knowledge’ Background Brief No. 7 (2016), 1. 157 Merryman J, Thinking about the Elgin Marbles: Critical essays on cultural property, art and law, Kluwer Law International, Alphen aan den Rijn, 2009, 24. 158 ‘Sarah Cascone: Greece Puts International Pressure on British Museum to Return Parthenon Sculptures’ 9 May 2016 https://news.artnet.com/exhibitions/elgin-marbles-greece-pressures-british-museum-492527 on 26 September 2016. 159 Merryman, Thinking about the Elgin Marbles, 25-26. 160 Merryman J, ‘Two ways of thinking about cultural property’ 80 American Journal of International Law (1986), 831. 154

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both the tangible and intangible elements of cultural property. Hutt et al define cultural property as ‘the tangible and intangible effects of an individual or group of people that define their existence, and place them temporally and geographically in relation to their belief systems and their familial and political groups, providing meaning to their lives.’161 This implies that material possessions162 as well as the abstract, for example, songs, traditional knowledge and practices fall within the meaning of cultural property.163 The survival of indigenous communities and the protection of cultural property are inextricably linked:164 their survival depends on cultural maintenance165 since culture constitutes and is indivisible from daily life.166 The physical world is linked to the spiritual and cultural life. Dispossessing indigenous communities of physical property therefore results in the destruction of critical aspects of their cultural and spiritual significance.167 There has been great disregard around the world for cultural property.168 Other factors are given primacy over the cultural heritage of a people. The United States is one good example.169 The United States Supreme Court’s decision in Lyng v Northwest Indian Cemetery Protective Ass’n,170 illustrates this point. It found it right that the Federal Government should construct a road through a site sacred to the Yurok, Karok, and Tolowa Indians. This had the effect of destroying the cultural and religious practices and ceremonies relating to the land.171 Brazil is another example where indigenous communities have suffered cultural and religious loss due to destruction of rainforests.172 Hutt S,Blanco C,SternW and Harris S, ‘Cultural property law: A practitioner’s guide to the management, protection, and preservation of heritage resources’ America Bar Association (2004). 162 Lyng v Northwest Indian Cemetery Protective Association, 485 US 439, 451 (1988). 163 See Sackville R, ‘Legal protection of indigenous culture in Australia’ 11 Cardozo Journal of International and Comparative Law (2003), 729 - 730. 164 Tsosie T, ‘Reclaiming native stories: An essay on cultural appropriation and cultural rights’ 34 Arizona State Law Journal (2002), 305 - 306. 165 Tsosie, ‘Reclaiming native stories’, 305-309. 166 Tester K, Media, Culture and Morality, Routledge, London, 1994, 14. 167 Carpenter K, ‘In the absence of title: Responding to federal ownership in sacred site cases’ 37 New England Law Review (2003), 620–621. 168 Stone P, ‘Human rights and cultural property protection in times of conflict’ 18 International Journal of Heritage Studies, 3 (2012), 279. 169 See generally United States v Sioux Nation of Indians, 448 US 371 (1980). 170 485 U.S. 439 (1988). 171 Carpenter, ‘In the absence of title’, 623. 172 Anderson S, ‘Colonialism continues: A comparative analysis of the United States and Brazil’s exploitation of indigenous peoples’ forest resources’ 27 Vermont Law Review (2003), 976. 161

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However, the African Commission on Human and Peoples’ Rights made the finding that the Kenyan government had violated the cultural and religious rights of the Endorois in taking their land without their consent.173 The appropriation of cultural property for other uses negatively affects indigenous communities.174 The use of the traditional knowledge of indigenous communities without being afforded protection by the existing intellectual property frameworks is also a current manifestation of the domination and exploitation of communities,175 yet this intangible property is crucial to their survival.176

4.10 Conclusion It is evident that property has multiple roles in society. From the discussion, the role of property in the social and individual life of humankind is uncontested. As the chapter explicates, one’s possessions can tell us about one’s self, personality and status in society. Equally, the role of property as a sound normative foundation for human flourishing has been discussed. Most importantly, the role of property in ordering society, in politics and economics has also been made explicit. What is evident from the above discussion is the pervasive and most influential role the property institution has and continues to occupy in human society. With new technological advances, globalisation, food insecurity, human rights awareness, climate change, and other global challenges, there will be new proprietary forms that property law will be required to protect. Be that as it may, it will be vital to design property rules and institutions that take into account the multifarious roles of property.

Centre for Minority rights development (Kenya) and minority rights group international on behalf of Endorois welfare council v Kenya, ACmHPR Comm. 276/2003. 174 Tsosie, ‘Reclaiming native stories’, 310. 175 Guest R, ‘Intellectual property rights and Native American tribes’ 20 American Indian Law Review (1996), 116-133. 176 Clarkson G, ‘Racial imagery and Native Americans: A first look at the empirical evidence behind the Indian Mascot controversy’ 11 Cardozo Journal of International and Comparative Law (2003), 403. 173

Chapter Five

FORMS OF PROPERTY

5.0 Introduction There are different forms of property in existence. Property can be categorised as public, community or private, depending on the entity vested with proprietary rights or interests. Certain forms of property are tangible while others are intangible, having only an abstract or conceptual existence. Moreover, some property forms are movable while others are immovable. Others have an economic value and can be traded in the market, while others may have a sentimental value only. In addition, some forms of property are so inextricably linked with one’s persona, that it is difficult to delink them from the personhood. This chapter explores the various forms of property and their unique attributes that sets them apart from other proprietary interests. It examines the broad categories of property such as: legal and economic property; public and private property; personal and fungible property; real and personal property; and tangible and intangible property. The chapter then examines various forms of intellectual property. It should be noted at the outset that certain proprietary interests may fall into one or more of the broad categories discussed in this section.

5.1 Legal and economic property Property rights are imperative in the world of economics. Cole and Grossman underscore the importance of property regimes in economics when they say

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that a well-defined property rights regime underlies the functioning of markets.1 Consequently, they assert that a property rights framework is the basis of trade and markets,2 without which there is bound to be market failure. Therefore, property systems are important in ensuring efficient resource allocation and use. In addition, property rights facilitate the resolution of disputes over resources.3 It is right to assert that the constitution of property rights precedes economic activity.4 Yoram Barzel distinguishes between ‘economic property’ and ‘legal property’. Economic property is an “individual’s ability, in expected terms, to consume the good (or the services of the asset) directly or to consume it indirectly through exchange.”5 “Legal property” refers to those economic property rights that are “recognized and enforced, in part, by the government.”6 Economic property is broad and encompasses the rights of anyone with ability to consume the good in any fashion. As such, using this framework, a car thief can be regarded as a co-owner of a car.7 According to Barzel, property is a residual institution, subordinate to the institution of contracts. And legal property is an even less significant factor, as it is concerned with instances when the state might protect economic property rights.8 Barzel thus observes that “at the heart of the study of property lies the study of contracts.”9 Accordingly, the legal institution of property was simply organised to offer protection for certain valuable attributes of property not addressed by optimal contracting10 such as transferability, exclusivity and in rem nature of property compared with the personal nature of contract rights. Private contracting would, for example, not engender these valuable attributes adequately especially when allocating property rights in environments where there are negative transaction costs.

Cole D and Grossman P, ‘The meaning of property rights: Law versus economics?’ 78 Land Economics, 3 (2002), 317. 2 Tregarthen T and Rittenberg L, Economics, Worth Publishers, New York, 2000, 133 3 Merrill T and Smith H, ‘What happened to property in law and economics?’ 111 The Yale Law Journal, 2 (2001), 398. 4 Getzler J, ‘Theories of property and economic development’ 26 The Journal of Interdisciplinary History, 4 (1996), 639. 5 Barzel Y, Economic analysis of property rights, 2 ed, Cambridge University Press, Cambridge, 1997, 3. 6 Barzel, Economic analysis of property rights, 3. 7 Barzel, Economic analysis of property rights, 3. 8 Barzel, Economic analysis of property rights, 3. 9 Barzel, Economic analysis of property rights, 3. 10 Barzel, Economic analysis of property rights, 3. 1

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5.2 Public and private property A public good is one where an individual’s consumption of the good does not reduce or exclude the ability of other individuals to consume the good.11 A pure public good is both non-rival and non-excludable.12 A good is non-rival when the quantity available for other people does not diminish when one consumes it, for example, natural air. A good is non-excludable, if it is prohibitively costly to provide the good only to people who pay for it, while preventing or excluding other people from obtaining it. An example of a public good is national defence. National defence is available to all on a non-rivalrous or noncompeting basis. Its enjoyment by one person does not prevent its use by another.13 All individuals are entitled to use public property but may not use or occupy it exclusively.14 Private property, on the other hand, gives a person an exclusive right.15 For private property, a person whose name is attached to the property can determine how it shall be used and by whom, subject to the limits defined by the law;16 for instance, land registered in the name of John Ogutu or a car registered in his name. In this case, John can decide in relation to the two properties when to use, how to use, when to dispose and to whom, amongst other rights. This is not the case with public property.

5.3 Personal and fungible property Margaret Radin defines personal property as the class of objects bound up with the personhood of their owner17 and fungible properties as those held by the owner just for instrumental reasons.18 Fungible properties can be commodified since they Ekelund RB and Tollison RD, Economics: Private markets and public, 6 ed, Addison-Wesley, New York, 2000, 447. 12 See Downward P, ‘Market segmentation and the role of the public sector in sports development’ in Houlihan B and Green M (eds), Routledge handbook of sports development, Routledge, Abingdon, 545. 13 McKean M, ‘Common property: What is it, what is it good for and what makes it work?’ in Gibson C, McKean M and Ostrom E (eds), People and forests: Communities, institutions and governance, The Massachusetts Institute of Technology Press, Cambridge MA, 2000, 27. 14 Moyle J, The institutes of Justinian, 5 ed, Clarendon Press, Oxford, 1913, 2.1. (With respect to things: ‘some admit of private ownership, while others, it is held, cannot belong to individuals: for some things are by natural law common to all, some are public, some belong to a society or corporation, and some belong to no one.’). 15 Eleftheriadis P, ‘The analysis of property rights’ 16 Oxford Journal of Legal Studies, 1 (1996), 32. 16 Waldron J, The right to private property, Clarendon Press, Oxford, 1988, 39. 17 Radin M, Reinterpreting property, University of Chicago Press, Chicago, 2009, 37. 18 Radin, Reinterpreting property, 37. 11

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have little to do with self-constitution.19 The basis of distinction between personal and fungible property is the pain suffered on losing them. Radin gives the example of a wedding ring stolen from a jeweller, where the jeweller can be reimbursed with insurance proceeds; and a wedding ring stolen from a loving wearer. She argues that in the latter example, the price of a replacement will not restore the original status and perhaps no amount of money can do so.20 Therefore, an object is personal property if its loss causes pain that cannot be relieved by the object’s replacement. It constitutes one’s self. An object is fungible property if it is “perfectly replaceable with other goods of equal market value” and is held for “purely instrumental reasons.”21 Personal objects are those things people have and feel are almost part of them. These are objects that are bound up with their personhood to enable them become personal entities in the world.22 This is based on the premise that for a person to achieve self-development there is need for some control over the external materials of the world, in the form of property.23 Radin argues that this view is implied in connections drawn between property and privacy24 or between property and liberty.25 The property varies with people and their preferences.

5.3.1 Persons and their bodies It is important to assess whether there are property rights in the human body. Is there a relation between body rights and rights to other things in the world? There are some who hold the view that the body should be viewed as property, such that each person owns or has title to himself or herself. Others maintain that the human body ought not to be thought of as property at all, as it is demeaning for human beings to think of themselves or their bodies as property.26

Radin M, Contested commodities: The trouble with trade in sex, children, body parts, and other things, Harvard University Press, Cambridge MA, 1996, 57. 20 Radin M, ‘Property and personhood’ 34 Stanford Law Review, 5(1982), 959. 21 Radin, ‘Property and personhood’, 959. 22 Radin, ‘Property and personhood’, 960. 23 Radin, ‘Property and personhood’, 957. 24 Katz v United States, 389 U.S. 347 (1967). 25 Lynch v Household Finance Corp., 405 U.S. 538, 552 (1972). The Court stated that: ‘[T]he dichotomy between personal liberties and property rights is a false one. ... In fact, a fundamental interdependence exists between the personal right to liberty and the personal right in property. Neither could have meaning without the other. That rights in property are basic civil rights has long been recognized.’ 26 Munzer, A theory of property, 37. 19

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Munzer offers a useful analysis of body rights and property rights worth outlining in this work. He argues that taking an overall view, people do not own, but have some limited property rights in their bodies. Consequently, he typologises body rights into personal rights and property rights. Further, he classifies property rights into weak and strong property rights.27 The question, therefore, is whether a person owns, or at least has limited property rights in, his or her body? This question has and continues to receive varied responses. St. Paul in one of his Letters, writes: ‘You are not your own property; you have been bought and paid for,’28 implying that one cannot have property rights in his or her body. However, there are others who hold the view that human beings have proprietary interests in their own persons. Locke says that ‘every Man has a Property in his own Person.’29 According to Munzer, persons do not own their bodies but rather they have limited property rights in those bodies.30 Persons have rights because they have interests and make choices. They have interests, for example, in being free from pain and in continuing to live. However, the fact of having interests is necessary but not enough for one to be conferred rights. If persons have a right not to be tortured, the reason is partly because they have an interest in being free from pain. People make choices. If a person has a right to speak freely, this is partly because they can choose whether, and, if so, how they will speak.31 Munzer uses a two-pronged approach to analyse whether there are property rights in body parts. First is to list the rights that persons have with respect to their bodies. Second is to assess whether these rights amount to ownership. Most jurisdictions prohibit prostitution, consent to murder or criminal assault, persons from selling themselves into slavery and from transferring inter vivos any organ that is essential to life. It is clear, that the rights that people have in their bodies are limited property rights. There are too many incidents of property that are lacking for one to say that persons own their bodies. For example, restrictions on transfer and absence of liberty to consume or destroy, suggest that persons do not own their bodies in the way they own laptops and cars.32

29 30

Munzer, A theory of property, 37. 1 Corinthians 6:19-20, Jerusalem Bible. Locke J, Second treatise of government, Bennett J (eds), 2010. By persons, we mean living human beings, that is, entities to which both physical and mental predicates apply. A corpse/dead body is not a person at all; it is the dead body of a former person. 31 Munzer, A theory of property, 41-42. 32 Munzer, A theory of property, 41-42. 27 28

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By viewing body rights, using the bundle of rights framework, rights to use, manage, dispose of, transfer, exclude others from, and so on, a body; certain sticks may qualify as property rights. As already stated, persons do not own their bodies but have limited property rights in their bodies. Transferability is used as a criterion for classifying some, but not all, body rights as property rights. Using the incidence of transferability, body rights can be classified into personal rights and property rights.33 Personal rights are body rights that protect interests or choices other than the choice to transfer. Property rights are body rights that protect the choice to transfer. Property rights are further grouped into weak property rights, that involve only a choice to transfer gratuitously; and strong property rights that involve a choice to transfer for value.34

5.4 Real and personal property This classification of property is traceable back to feudal England. The courts in feudal England allowed a real action or actio realis only for specifically recovering land. Where a person was dispossessed of property other than land, the person who had taken the property could return it or pay damages.35 This practice led to land being referred to as real property or realty while other forms of property were referred to as personal property.36 Real property always had a special position. Owning land was to have political, social and economic power. Disputes arising over land were resolved in the king’s courts. Personal property, on the other hand, was not treated with a lot of regard. For example, when one died, it is the church courts that supervised the distribution of personal property. Consequently, real property law developed in a complex manner while personal property law became relatively simple and straightforward.37 Property in common law is divided into two categories: real property and personal property. Real property is comprised of things capable of physical possession while personal property is made up of incorporeal interests in things personal and in things real.38 Both real and personal property can take tangible and intangible 35 36 37 38 33 34

Munzer, A theory of property, 44-48. Munzer, A theory of property, 49. Smith K and Keenan D, English law, Pearson Education, New York, 1969, 221. Smith and Keenan, English law, 221. Sprankling J, Understanding property law, 2ed, Matthew Bender, New Jersey, 2007, 8. Costigan G, ‘A plea for a modern definition and classification of real property’ 12 The Yale Law Journal,

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forms. The basis of distinction is the movability of the property. The word chattel, deriving from the same old French root as cattle, is often used as a synonym for personal property. In fact, within the civil law tradition, the term ‘movable’ refers to personal property (for example a car, a laptop, a purse, table, et cetera) while ‘immovable’ is used to refer to real property, for instance land or a house.39 Personal property is further divided into two other categories as either choses in possession or action.40 Choses in possession refer to the personal things that are tangible and are capable of physical control by the owner. Examples include a painting hanging on a wall, a table, a car, money in the pocket etc. Choses in action are intangible and incapable of physical control. Rights in such things are enforceable through suits and not by taking physical possession.41 They include debts, intellectual property rights (IPRs), insurance claims, cheques, a right of action in tort or contract, an entitlement to trust assets or tax refund, shares in a company and negotiable instruments.

5.5 Tangible and intangible property Property is categorised as tangible or intangible based on whether it is capable of physical possession or not. Tangible properties are those that can be held or touched. They consist of things that have a physical existence, for example, land, buildings and motor vehicles. Intangible property, on the other hand, consists of items of property that cannot be touched such as IPRs, shares in a company, debts et cetera. They have a conceptual existence and no physical form, for example, an idea or knowledge.42 Tangible property is the commonest form of property and has taken centre-stage for the better part of human history.43 However, developments in science, information communication technology and globalisation have brought to light the importance of intangible property as exemplified by the popularity of intellectual property. There has been a shift towards intangible forms of property, 7 (1903), 426. Aalberts R, Real estate law, 9 ed, Cengage Learning, Stamford, 2014, 28. 40 Colonial Bank v Whinney, 30 Ch. D. 261, 285 (1885), per Fry, LJ, whose dissenting judgment was upheld by the House of Lords, 11 AC 426 (886). 41 Smith and Keenan, English law, 222. See also Channel, J, in Torkington v Magee [I902] 2 KB 427, 430. 42 Carper D, Mckinsey J and West B, Understanding the law, Thompson, Ohio, 2008. 43 Epstein R, ‘What is so special about intangible property? The case for intelligent carryovers’ The University of Chicago: The Law School John M. Olin Law & Economics Research Paper Series, 524 (2010), 39

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which has brought about two opposing effects. First, while in some instances it may increase the complexity of organising a property rights system; it actually offers a simplification of legal doctrine.44 Second, drawing analogies between the two can hinder and obscure the understanding of intangible property.45

5.6 Goodwill A universally accepted definition of goodwill has not been found. The reason, as observed by Dawson J in Hepples v FC of T, is that the term is not a pure legal term.46 In accounting and commerce, goodwill is the value of the business in excess of the value of the identifiable assets.47 In law, the fact of the business attracting customers is central, and as such the goodwill of a business is protected irrespective of the profitability or the value of its identifiable assets.48 Goodwill is generally regarded as an intangible form of property deriving from some other form of property, either tangible or intangible. Lord Lindley’s definition in Inland Revenue Commissioners v Muller & Co’s Margarine Limited49 explains this point succinctly when he observes that: Goodwill regarded as property has no meaning except in connection with some trade, business, or calling. In that connection I understand the word to include whatever adds value to a business by reason of situation, name and reputation, connection, introduction to old customers, and agreed absence from competition, or any of these things, and there may be others which do not occur to me. In this wide sense, goodwill is inseparable from the business to which it adds value, and, in my opinion, exists where the business is carried on. Such business may be carried on in one place or country or in several, and if in several there may be several businesses, each having a goodwill of its own.50

The goodwill of a business was originally defined with a greater emphasis being put on the customers of the business.51 However, a wider conception was later adopted and in one case it was understood as: Gray K and Gray S, ‘The idea of property in land’ in Bright S and Dewar JK (eds),Law and land: Themes and perspectives, Oxford University Press, Oxford, 1998, 15-51. 45 Epstein, ‘What is so special about intangible property?’, 3. 46 (1991-1992) 173 CLR 492, 519. 47 Hepples v FC of T (1991-1992) 173 CLR 492, 542. 48 Trego [1896] AC 7. 49 [1901] AC 217. 50 [1901] AC 217, 235. 51 Cruttwell v Lye (1810) 34 ER 129, 134. 44

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‘...every advantage—every positive advantage...that has been acquired by the old firm in carrying on its business, whether connected with the premises in which the business was previously carried on, or with the name of the late firm, or with any other matter carrying with it the benefit of the business.52

It is a form of intangible property that confers a legal right or privilege to conduct a business in substantially the same manner and by substantially the same means as previously done by another firm.53 As a form of property, goodwill confers on a person, the right to seek legal recourse in cases of infringement. Lord McNaughten best captures the idea of goodwill as property when he explains: It is very difficult, as it seems to me, to say that goodwill is not property. Goodwill is bought and sold every day. It may be acquired, I think, in any of the different ways in which property is usually acquired. When a man has got it he may keep it as his own. He may vindicate his exclusive right to it if necessary by process of law. He may dispose of it if he will—of course under the conditions attaching to property of that nature.54

Goodwill cannot exist independent of the business undertaking. It is an interest that cannot be conveyed or held in gross, as it attaches to a business and cannot be dealt with separately from the business with which it is associated.55 It attaches to a business and manifests itself in various forms. For example, monopoly goodwill, site goodwill, personal goodwill and name goodwill. Monopoly goodwill is goodwill arising from a monopoly conferred on a trader; for example, a patent conferred on a trader to manufacture a particular product or use a certain process. The trader may in effect develop a custom tied to the monopoly.56 Site goodwill is goodwill as a result of customers having developed a preference for a particular business site. The location of a business is favourable to customers if they develop the habit of going to the location to purchase goods and services over a long period of time.57 In fact, the first definition of goodwill refers to site or location. Lord Eldon LC explains this in Cruttwell v Lye58 when he observes that the goodwill of a business is “...nothing more than the probability that the old customers will resort to the old place.” Personal goodwill derives from the personal characteristics of a 54 55

Churton v Douglas (1859) 70 ER 385, 391. FCT v Murray (1998) 193 CLR 605, 615. [1901] AC 217, 223. Geraghty v Minter (1979) 142 CLR 177, 181. In the same case at page 193, Stephen J said that goodwill is ‘inherently inseverable from the business to which it relates.’ 56 Tregoning I, ‘The meaning and nature of goodwill in the tax context’ 39 Australian Tax Review (2010), 125. 57 Box v FCT [1952] 86 CLR 387. 58 [1810] 17 Ves Jun 335, 346. 52 53

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person or people associated with a business independent of the business premises and other sources of goodwill. It is the personal characteristics of the person(s) that attract the customers.59 Goodwill in the form of professional goodwill has been held to be property capable of being traded.60 Name goodwill is the goodwill arising from the name or reputation of a business. It could involve a name, brand or trademark legally recognised and protected.61

5.7 Electromagnetic spectrum Electromagnetic spectrum or spectrum space is a form of public-intangible property.62 It is defined as the range of all possible electromagnetic radiation,63 used for such functions as radio broadcast, microwave communications systems, broadcast television, satellites, dispatch and defense.64 Its management is increasingly becoming difficult due to its nature and increasing uses.65 Different models exist for managing spectrum. These are: the traditional command-and-control model, the commons model and the property model. Under the command-and-control model, spectrum can be privatised as there is a regulator who is in charge of allocation and usage decisions. Persons who want to use the spectrum apply to the regulator, who then decides who gets the spectrum and the rules to be complied with in using it.66 One may only use the allocated spectrum Tregoning, ‘The meaning and nature of goodwill in the tax context’, 125. Martin Ice Cream v Commissioner, 110 TC 189 [1998] and Norwalk v Commissioner, 76 TCM 208 [1998]. 61 Tregoning, ‘The meaning and nature of goodwill in the tax context’, 125. 62 As a form of property it is covered by the broad scope of Article 40 of the Constitution which allows for the acquisition and ownership of property of ‘any description’. Property of ‘any description’ could include electromagnetic spectrum. See also Article 34(3) of the Constitution provides that ‘broadcasting and other electronic media have freedom of establishment, subject only to licensing procedures that-(a) are necessary to regulate the airwaves and other forms of signal distribution; and (b) are independent of control by government, political interests or commercial interests.’ 63 Sandvig C, ‘Access to the electromagnetic spectrum is a foundation for development’, 50 http:// www-personal.umich.edu/~csandvig/research/Access_to_the_Electromagnetic_Spectrum.pdf on 9 July 2015. 64 National Aeronautics and Space Administration, ‘Tour of the electromagnetic spectrum’ http://missionscience.nasa.gov/ems/TourOfEMS_Booklet_Web.pdf on May 15, 2016. 65 Roberson D and Webb W, ‘Radio frequency spectrum and regulation’ in Wyglinski AM, Nekovee M and Hou YT (eds), Cognitive radio communications and networks: Principles and practice, Academic Press, Burlington, 2010, 24. 66 Zhou X, Zheng H, Nekovee M and Buddhikot MM, ‘Auction-based spectrum markets in cognitive radio networks’ in Wyglinski, Nekovee and Hou, Cognitive radio communications and networks, 489. 59 60

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according to the stipulations in the license, essentially limiting the innovation of the license holder. The regulator intervenes in the event of breach of license conditions and may impose penalties or even withdraw the license. This model has been criticised on the grounds of being inefficient.67 In fact, the shortage of radio spectrum in the development of wireless communication is attributed to the administrative inefficiencies rather than a matter of scarcity of resources.68 On the limits of innovation by the command-and-control model, Lawrence Lessig observes that: Liberating spectrum from the control of government is an important first step to innovation in spectrum use. …All agree that the only thing that government-controlled spectrum has produced is an easy opportunity for the old to protect themselves against the new. Innovation moves too slowly when it must constantly ask permission from politically controlled agencies. The solution is to eliminate the need to ask permission, by removing these controllers at least.69

Under the commons model, spectrum is regarded as common property of the people and managed in a cooperative manner, for example, in the case of common pastures, and the government plays a minimal role in governance or dispute resolution.70 Therefore, those who wish to use the spectrum need not have the permission of the government. A person is free to use and may not exclude others. Rules are made by the users as to how access is gained and how the spectrum may be used.71 Proponents of the commons model agree with property model proponents on the inefficiency of the command-and-control model, but differ on what should be the way forward. As Werbach notes: [C]ommons advocates accept the economists’ diagnosis of the problem, just not their solution. The commons critique acknowledges that scarcity does not justify government control of spectrum, but is, in fact, exacerbated by it. It concurs that spectrum should be managed through market forces rather than government dictates. But, it shifts the debate. It highlights the common assumption of exclusivity between government licensing and property rights, and opposes it with lightly controlled forms of shared access.72 Stine JA, ‘Spectrum-consumption models’ in Fette B (ed), Cognitive radio technology, Academic Press, Burlington, 2009, 647. 68 Keda N, ‘The spectrum as commons,’ Research Institute of Economy, Trade and Industry Discussion Paper, 02-E-002, (2002), 1. 69 Lessig L, The future of ideas, Random House, New York, 2002, 84-87. 70 Simpson B, ‘Low power FM in New Zealand: A survey of an open spectrum commons’ in Mollgaard M (ed), Radio and society: New thinking for an old medium, Cambridge Scholars Publishing, Newcastle upon Tyne, 2012, 174. 71 Wellenius B and Neto I, ‘The radio spectrum: Opportunities and challenges for the developing world’ World Bank Policy Research Working Paper 3742 (2005), 8. 72 Werbach K, ‘Supercommons: Toward a unified theory of wireless communication’ 82 Texas Law Review (2004), 865. 67

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To the commons property proponents, private property rights in spectrum are as unnecessary as government-issued licenses73 due to the limits placed on access by licenses and property rights. Proponents of the commons model have also sought to clarify that spectrum should be held as common property as opposed to open access to safeguard it from the tragedy of the commons phenomenon. Accordingly, Swaney states that: Common property is not synonymous with open access. Open access (res nullius) refers to resources that can be exploited by anyone without limit...Common property (res communes) means a group of owners or users share use rights to the resource. Common property is characterized by restrictions on who uses the resource, and when and how. . . . To treat common property as open access is the “open-commons confusion,” and has been chronic at least since . . . [1954]. This confusion was further entrenched with Garret Hardin’s “The Tragedy of the Commons”74

The mistaken use of the term commons to refer to open access resources is not unusual.75 The property model advocates the privatisation of the spectrum by allocating property rights over it. Economist Ronald Coase suggests the establishment of a spectrum market in which persons interested in the spectrum could buy, sell, subdivide or aggregate it in order to achieve an efficient allocation.76 According to him, the spectrum rights ought to be determined by a pricing system and awarded to the highest bidder. This would ensure optimum use of the spectrum as holders of idle or underutilised frequencies would have the incentive to sell to those who value it more and are willing to pay a higher price for it. Ownership and use of frequencies would be regulated by constraints as in the case of any other form of property. The merits that come with the property model include efficient allocation due to scarcity and increase in innovation. The command and control model inhibits innovation as the licensee uses the allocated spectrum as per the stipulations in the license. In Kenya, spectrum is regulated through a command-and-control model. Under this model, the Communication Authority of Kenya is tasked with the allocation Werbach, ‘Supercommons’, 865. Swaney J, ‘Common property, reciprocity, and community’ 24 Journal of Economic Issues (1990), 451452. 75 For example, Ryan says that a commons is a resource open to all, see Ryan P, ‘Application of the public-trust doctrine and principles of natural resource management to electromagnetic spectrum’ 10 Michigan Telecommunications and Technology Law Review (2004), 314. 76 Coase R, ‘The federal communications commission’ Journal of Political Economy (1959), 1. See also Herzel L, ‘“Public interest” and the market in color television regulation’ 18 University of Chicago Law Review (1951), 802. 73 74

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and usage of spectrum through the issuance of licences.77 The constitutional basis for the regulation is provided under Article 34(3).78 The Authority is established under the Kenya Information and Communications Act, 1998, as amended in 2013.79 It is charged with the mandate of granting broadcasting licences.80 In so doing, it is required to consider the availability of radio frequency including the availability of such spectrum for future use.81 The Act also establishes the National Communication Secretariat with the function of advising the government on the adoption of a communication policy.82 In relation to spectrum, the policy should foster full, efficient and beneficial use by the government of spectrum in the public interest.83 A spectrum policy is important since the means of communication in the world are increasingly becoming wireless. The Kenya Communications Regulations, 2001, prescribe the National Spectrum Management Policy. Under the Policy, the Authority is empowered to control the use of the spectrum and may withdraw it. It also places on the Authority the task of frequency assignment and licensing.84 Spectrum management is also done pursuant to the Kenya Information and Communications (Radio Communications and Frequency Spectrum) Regulations, 2010, enacted pursuant to the Act85 to regulate the management of spectrum by the Authority. The spectrum issue was recently drawn into public debate in Kenya with the digital migration programme being conducted in the country pursuant to the Regional Radio Conference of 2006 in Geneva, Switzerland (RRC-06). However, a dispute arose as to whether Royal Media Services, Nation Media Group and Standard Media Group were entitled to broadcasting licenses. In Royal Media Services Limited v Attorney General and others,86 the High Court, in recognising spectrum as property, stated that ‘…frequency spectrum is a scarce public resource allocated by the CCK in order to ensure utilization in a co-ordinated manner so as to ben See Communication Authority of Kenya http://www.ca.go.ke/index.php/frequency-spectrum on May 15, 2016. 78 Article 34(3), Constitution of Kenya (2010), provides that: ‘Broadcasting and other electronic media have freedom of establishment, subject only to licensing procedures that(a) are necessary to regulate the airwaves and other forms of signal distribution; and (b) are independent of control by government, political interests or commercial interests.’ 79 Kenya Information and Communications (Amendment) Act (Act No. 41A of 2013). 80 Section 4A, Kenya Information and Communications Act (Chapter 411A, Laws of Kenya). 81 Section 46D (2) (C), Kenya Information and Communications Act (Chapter 411A, Laws of Kenya). 82 Section 84, Kenya Information and Communications Act (Chapter 411A, Laws of Kenya). 83 Section 84, Kenya Information and Communications Act (Chapter 411A, Laws of Kenya). 84 Section 16, Kenya Communications Regulations, 2001. 85 Sections 38 and 46K, Kenya Information and Communications Act (Chapter 411A, Laws of Kenya). 86 Nairobi Petition No. 346 of 2012. 77

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efit the public as a whole.’ It went ahead to quote the Privy Council’s decision in Observer Publications Limited v Campbell Mickey Mathew and Others,87 where the Privy Council noted that airwaves are public property and their use has to be regulated and rationed in the general interest of the public. According to the High Court, the basis of regulation is the avoidance of disorder. The High Court cited the decision of the United States Supreme Court in Red Lion Broadcasting Co. v FCC88 where the Supreme Court stated as follows: Before 1927, the allocation of frequencies was left entirely to the private sector, and the result was chaos. It quickly became apparent that broadcast frequencies constituted a scarce resource whose use could be regulated and rationalised only by the Government. Without government control, the medium would be of little use because of the cacophony of competing voices, none of which could be clearly and predictably be heard. Consequently, the Federal Radio Commission was established to allocate frequencies among competing applicants in a manner responsive to public ‘convenience, interest and necessity.’

5.8 Intellectual property rights (IPRs) and real property Intellectual property rights are entitlements conferred by the law to persons over creative works: inventions, literary and artistic works, symbols, names, images, and designs used in commerce.89 IPRs apply to subject matter that satisfies or is capable of satisfying a specifically defined threshold. They are also not absolute, as third parties can do certain things within the scope of those rights, as provided by the principle of exhaustion of IPRs. For example, once a copyrighted material is sold with the consent of the copyright holder, the buyer may resell the material.90 The principles of fair dealing and fair use may also allow a third party to use, within certain limits, the copyrighted material.91 Moreover, IPRs have a limited duration as a general rule.92 They are transferable and are generally a creation of statute.93 The intangible nature of intellectual property renders the exclusion of others difficult. (2001) 10 BHRC 252, 49. 395 US367 (1969). 89 Commission on Intellectual Property Rights, Integrating intellectual property rights and development policy, London, 2002, 12. 90 Office of the General Counsel, ‘Copyright and fair use’ http://ogc.harvard.edu/pages/copyright-andfair-use on May 16th 2016. 91 Office of the General Counsel, ‘Copyright and fair use’. 92 Office of the General Counsel, ‘Copyright and fair use’. 93 Christie A and Pryor S, ‘IP and intangible assets: A legal perspective,’ Intellectual Property Research Institute of Australia Occasional Paper, 1/05 (2005), 13. 87 88

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Various statutes confer intellectual property rights as a mechanism of excluding other persons.94 In Kenya, a legal and institutional framework has been established to ensure the protection of IPRs. The Constitution provides a firm legal basis for guaranteeing the property rights (including IPRs) of every person in Kenya.95 The Industrial Property Act,96 which has domesticated the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement)97 and the Patent Cooperation Treaty,98 provides for the protection of industrial designs and establishes the Kenya Industrial Property Institute (KIPI), which is a body tasked with the administration of patents, industrial designs and trade/service marks.99 The other Acts include; The Copyright Act,100 Trade Marks Act,101 and the Anti-Counterfeit Act.102 The following section discusses the various forms of intellectual property. The IPRs discussed in this section are; patents, copyright, geographical indications, databases, utility models, trade mark, industrial design, technovation, plant breeders rights, and traditional knowledge.

5.8.1 Patents Patent law protects inventions and some kinds of discoveries. A patent vests an exclusive right on an inventor to prevent others from making, selling, distributing, importing or using their invention, without license or authorisation, for a fixed period of time in return for disclosure.103 The invention must meet the three requirements of novelty, inventive step and industrial applicability. 104 The Industrial Property Act105 makes provisions for the promotion of inventive and innovative activities and the granting of patents, utility models, technovations and industrial designs rights. The Kenya Industrial Property Institute promotes innovation in the 96 97 98 99 94 95

102 103 100 101

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Christie and Pryor, ‘IP and intangible assets’, 12. See generally Article 40, Constitution of Kenya (2010). Chapter 509, Laws of Kenya. 15 April 1994, 1869 UNTS 299. 19 June 1970, 1160 UNTS 231. Sections 3 and 5, Industrial Property Act (Chapter 509, Laws of Kenya). Chapter 130, Laws of Kenya. Chapter 506, Laws of Kenya. Chapter 130 A, Laws of Kenya. World Intellectual Property Organisation, Intellectual property handbook, 2 ed, WIPO Publication No. 489 (E), 2008, 17. Section 22, Industrial Property Act (Chapter 509, Laws of Kenya). See also Article 27(1), Agreement on Trade-Related Aspects of Intellectual Property Rights, 15 April 1994, 1869 UNTS 299. Chapter 509, Laws of Kenya.

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country, considers applications for the grant of industrial property rights and administers the Act.106 The right to the invention is vested in the inventor and where they are two or more, the right vests in them jointly. Where two or more similar inventions are made independently, the one with the earliest filling date or priority date107 has the right to the patent.108 The right to inventions made in the course of employment or pursuant to commissioned work vests in the employer or the person who commissioned the work unless otherwise provided for in a contract.109 However, the inventor has the right to be remunerated considering his/her salary and the benefit derived by the employer from the invention.110 The holder of the rights has the right to preclude others from using111 the invention and may sue to enforce the right112 within the twenty-year (21) protection period provided.113 Examples of inventions patented in Kenya are: a magneto dynamics energy generation system;114 a method of identifying disease risk factors;115 and a water purification device.116

5.8.2 Copyright Copyright protects “original forms of expression,” that have been reduced into tangible forms, for example, novels, movies, musical compositions, and computer software programs for a specified duration. Copyright protection in Kenya is governed by the Copyright Act of 2001117 The Act establishes the Kenya Copyright Board118 and assigns it the core mandate of overseeing the implementation and administration of national copyright laws and any international agreements entered

108 109 110 111 112 113 114 115 116 117 118 106 107

Section 5, Industrial Property Act (Chapter 509, Laws of Kenya). Section 37, Industrial Property Act (Chapter 509, Laws of Kenya). Section 30, Industrial Property Act (Chapter 509, Laws of Kenya). Section 32, Industrial Property Act (Chapter 509, Laws of Kenya). Section 32, Industrial Property Act (Chapter 509, Laws of Kenya). Section 54, Industrial Property Act (Chapter 509, Laws of Kenya). Section 55, Industrial Property Act (Chapter 509, Laws of Kenya). Section 60, Industrial Property Act (Chapter 509, Laws of Kenya). Kenya Industrial Property Institute, Industrial Property Journal - No. 2016/04, 30/04/2016, 1. Kenya Industrial Property Institute, Industrial Property Journal - No. 2016/01, 31/01/2016, 1. Kenya Industrial Property Institute, Industrial Property Journal - No. 2015/09, 30/09/2015, 1. Chapter 130, Laws of Kenya. Section 3, Copyright Act (Chapter 130, Laws of Kenya).

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into by Kenya.119 The Act lists the following as works eligible for copyright: literary, musical, artistic, audio-visual works, sound recordings and broadcasts.120 The period of protection is fifty (50) years as from the date of publication or recording or from the date of death of the author in the case of literary, musical and artistic works.121

5.8.3 Geographical indications A geographical indication (GI) is defined as a sign used on products that have a specific geographical origin and possess qualities or reputation due to that origin.122 A geographical indication mainly consists of the name of the place of origin. For example, Roquefort identifies a specific cheese made in Roquefort-sur-Soulzon, a region in Southwest France.123 Other examples of geographical indications are, ‘Cognac’ (a spirit manufactures in Cognac-France), ‘Scotch’ (a whisky brand made in Scotland), ‘Porto’, ‘Havana’, ‘Tequila’, ‘Jamaica Blue Mountain’ coffee and ‘Swiss’ or ‘Swiss made’ watches.124 A GI is protected under various international agreements including the Agreement on Trade-Related aspects of Intellectual Property Rights (TRIPS) Agreement.125 It is important to note that GIs are not used for agricultural products only. They may also be used to highlight a product having specific qualities due to the human factors found in its place of origin, for example, the handicraft making traditions of local communities.126

5.8.4 Databases Databases have gained a lot of attention with the coming of the information and technological age. It is central in the distribution of arranged content. Data 121 122 119

120

123

124

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Section 5, Copyright Act (Chapter 130, Laws of Kenya). Section 22, Copyright Act (Chapter 130, Laws of Kenya). Section 23, Copyright Act (Chapter 130, Laws of Kenya). World Intellectual Property Organisation, Geographical indications: An introduction, WIPO Publication No. 952(E), 8. Confédération générale des producteurs de lait de brebis et des industriels de Roquefort, www.roquefort.fr on 7 June 2015. World Intellectual Property Organisation, Geographical indications, 8, 9, 11. See, for example, Articles 22 - 24, Agreement on Trade-Related Aspects of Intellectual Property Rights, Article 2, Lisbon Agreement for the Protection of Appellations of Origin and their International Registration, 31 October 1958, 923 UNTS 205. World Intellectual Property Organisation, Geographical indications, 10.

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bases which constitute creative compilations are protected through copyright in the Berne Convention127 and under the WTO/TRIPS Agreement. Some are also protected on the basis of the effort made in compiling them. Database right is conferred on the ‘maker’ of the database who is the person who takes the initiative in obtaining, verifying or presenting the contents of the database and assumes the risk of investing in it. 128 Europe has implemented a sui generis129 system pursuant to the Database Directive.130 The main factor being considered is the amount of investment in the database. Substantial investment has been upheld by the courts as a basis for such protection.131 Critics, however, argue that conferring IPRs on databases is like granting IPRs in data which inhibits access on raw data for the purpose of any necessary scientific research.132 Currently, databases are not protected in Kenya. With the growing adoption of sui generis frameworks for the protection of traditional knowledge (TK) held by communities, some countries such as China,133 India134 and Venezuela135 have resorted to the use of TK databases and registries. These databases allow for the documentation of TK, which is compiled and systematically arranged for it to be accessible to patent examination offices.136

See Berne Convention for the Protection of Literary and Artistic Works, 9 September 1886, 828 UNTS 221. 128 McGeeve M, ‘IPR in databases’ http://www.dcc.ac.uk/resources/briefing-papers/legal-watch-papers/ ipr-databases on May 16, 2016. 129 Sui generis frameworks entail the use of a combination of different tools, mechanisms and procedures apart from the classical IPRs in the protection of traditional knowledge communally held from local and indigenous communities. 130 See submissions of the European Community and its Member States in documents DB/IM/3 Add. of 1997, and SCCR/1/INF/2 of 1998. 131 http://ec.europa.eu/internal_market/copyright/docs/databases/wipo-protection-db_en.pdf on 8 June 2015. 132 McGeeve, ‘IPR in databases’. 133 See Traditional Chinese Medicine (TCM) Patent Database that contains bibliographic records and TCM formulas. See generally Liu Y and Sun Y, ‘China traditional Chinese medicine (TCM) patent database’ 26 World Patent Information, 1 (2004) 91-96. 134 India has a Traditional Knowledge Digital Library (TKDL) which serves as a database for TK in India. See http://www.tkdl.res.in/tkdl/langdefault/common/Abouttkdl.asp?GL=Eng on 21 May 2012. 135 In Venezuela there is the Biozulua database containing data about medicinal plants and food crops provided by 24 ethnic groups living in the Amazon. See generally, Owain J, ‘Venezuelan project establishes indigenous plant database’ 325 British Medical Journal, 7357 (2002), 183. 136 World Intellectual Property Organisation, Intergovernmental committee on intellectual property and genetic resources, traditional knowledge and folklore, First Session, WIPO/GRTKF/IC/1/3 (16 March 2001), 20, 22, 26. 127

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5.8.5 Utility models Utility models are a form of intellectual property protection granted for inventions with fewer requirements than those of patents.137 The only requirements stipulated by the Industrial Property Act for an invention to be conferred with a utility model certificate are that it has to be new and industrially applicable.138 It also confers a shorter period of protection than a patent.139 Utility models are regulated under the Industrial Property Act which provides in section 82 that they shall be protected for a period of ten years. The protection of utility models under IPRs regime is instrumental in protecting the property rights of artisans in the jua kali industry which employs a large percentage of Kenyans.140 The following are examples of utility models granted in Kenya: mobile vehicle advertising body/frame;141 a raised polyethylene fish solar dryer;142 and a transparent calibrated composite gas cylinder.143

5.8.6 Trade marks144 Trade mark law protects words and symbols that identify for consumers the goods and services manufactured or supplied by particular persons or firms.145 In Section 82(1), Industrial Property Act (Chapter 509, Laws of Kenya). Section 2 defines utility models as ‘any form, configuration or disposition of element of some appliance, utensil, tool, electrical and electronic circuitry, instrument, handicraft mechanism or other object or any part of the same allowing a better or different functioning, use, or manufacture of the subject matter or that gives some utility, advantage, environmental benefit, saving or technical effect not available in Kenya before and includes micro-organisms or other self-replicable material, products of genetic resources, herbal as well as nutritional formulations which give new effects.’ 138 Section 82(1), Industrial Property Act (Chapter 509, Laws of Kenya). 139 Commission on Intellectual Property Rights, Integrating intellectual property rights and development policy, 12. 140 See Bitange Ndemo, ‘Linking jua kali to innovation for employment and wealth creation’ Daily Nation 18 August 2014. 141 Kenya Industrial Property Institute, Industrial Property Journal - No. 2016/04, 30/04/2016, 10. 142 Kenya Industrial Property Institute, Industrial Property Journal - No. 2016/03, 31/03/2016, 12. 143 Kenya Industrial Property Institute, Industrial Property Journal - No. 2016/02, 29/02/2016, 10. 144 The use of the word Trade Mark, that is, two separate words, is the correct way of spelling the term in most of the English-speaking world, for example, in Kenya we have the Trade Marks Act (Chapter 506, Laws of Kenya). In USA and Philippines, the use of a single word, Trademark, is common although the American usage is gaining currency in UK and elsewhere. In Canada, the use of the hyphenated word, Trade-mark Act, is quite common. See generally, Is it Trade Mark, Trademark or Trade-mark? http:// www.bb-ip.com/is-it-trade-mark-trademark-or-trade-mark/ 145 Fisher W, ‘Theories of intellectual property’ in Munzer S (ed), New essays in the legal and political theory of property, Cambridge University Press, Cambridge, 2001, 168-199. See, Section 2(1), Trade Marks Act (Chapter 506, Laws of Kenya). 137

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Kenya, trademarks are regulated by the Trade Marks Act, which is administered by the Registrar of Trade Marks.146 A mark may be registered if it meets at least one of the following: specially represented name of a company, firm or individual; signature; invented words; and any other distinctive mark.147 A well-known mark may also be protected in Kenya even where the owner of such a mark does not engage in business activity in Kenya.148 The Act protects registered trademarks for a period of ten (10) years, which may be extended upon renewal.149 A registered trade mark may be transferred and assigned.150 However, once a trade mark has been registered, it can only be used for the particular good that it was registered for and cannot be used for other goods.151 The courts have had occasion to interpret the provisions of the Act in light of issues raised by litigants.152 In Beiersdorf East Africa Limited v Emirchem Products Limited,153 the Plaintiff, Beiersdorf, is the owner of the trademark ‘NIVEA’ which it uses in its creme and oil skin product. Immediately below the word ‘NIVEA’ are the words ‘Pure Petroleum Jelly’. The Defendant, Emirchem, started manufacturing a product and named it ‘NIVELIN pure petroleum jelly’. The Plaintiff instituted legal proceedings claiming trademark infringement by the Defendant’s product. In holding that the Defendant’s product was an infringing product, Mbaluto J stated that, I must observe that I find the similarities and resemblance in the defendant’s mark “NIVELIN” whose first two syllables are exactly the same as the first two syllables of the plaintiff’s registered trade mark “NIVEA” are striking. But apart from the names, other similarities which I note are: - “(a) The use by the defendant of the same type face as that used by the plaintiff on its products; (b) The use by the defendant on the label of the NIVELIN jar of colour white and dark blue which are also the colours of the label on the NIVEA jar; (c) The fact that on the NIVELIN label directly below the word NIVELIN are written the words “pure petroleum jelly, smooth skin” which appears to be an exact imitation of the similar words in the same position namely “pure petroleum jelly, healthy skin” in the NIVEA label…However, the most crucial factor in my own assessment is the fact that the first two syllables of the defendant’s mark “NIVELIN” are exactly the same as those of the plaintiff’s “NIVEA.” All those matters when taken together constitute not

148 149 150 151 152 153 146 147

Section 4, Trade Marks Act (Chapter 506, Laws of Kenya). Section 12, Trade Marks Act (Chapter 506, Laws of Kenya). Section 15A, Trade Marks Act (Chapter 506, Laws of Kenya). Section 23, Trade Marks Act (Chapter 506, Laws of Kenya). Section 25, Trade Marks Act (Chapter 506, Laws of Kenya). See Saudi Arabian Corporation v Saudi Kenya Enterprises Ltd, Civil Appeal No. 47 of 1984. See also Unilever PLC v Bidco Oil Industries [2004] eKLR. [2002] eKLR.

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only a probable infringement of the plaintiff’s trademarks but also raise a real probability of confusion to customers.154

Due to the similarities, the Defendant’s product was bound to cause confusion among the consumers in the market given that the Plaintiff had already established a reputation in the market while the Defendant was a new entrant. The Court further observed that the Plaintiff would incur harm that could not be repaired by damages if the injunction was not granted. It was also noted that the Plaintiff acted swiftly and lodged a complaint with the Kenya Industrial Property Office and, therefore, did not acquiesce to the use of ‘NIVELIN’ by the Defendant. 155 The Court in Pastificio Lucio Garofalo SPA v Debenham & Fear Ltd156 examined issues on trade mark infringement and the remedies available to the injured party. The Plaintiff was the registered owner of the trademark ‘Santa Lucia’, the name together with the design of the packaging label, which it used in pasta products. It registered the trade name ‘Santa Maria’ in 1992 and altered it in 2009 to include the appearance packaging label. The Defendant registered the name ‘Santa Maria’ as a word mark in 2008 and later attempted to register a packaging label in 2011 that was rejected by the Kenya Industrial Property Institute on the grounds that it was similar to that of the Plaintiff. However, the Defendant proceeded to use its trade name and the packaging label, prompting the Plaintiff to sue for infringement. The High Court interpreted the implication of section 22 of the Trade Marks Act157 which states that the date of registration is the date of the application for registration or application for alteration as opposed to date on which the mark is actually registered or altered. The Plaintiff had applied for alteration of the mark in 2009, but instituted the cause of action in 2010 before the alteration was effected in 2011. The Court stated that the effect of section 22 was to vest in the Plaintiff, from 2009, the exclusive right to use the trademark as altered. It also looked into the test to be met for the Plaintiff to maintain a passing off action by citing Reckitt & Coleman Products v Borden Inc & Others,158 where Lord Oliver expounded on the ‘classical trinity’ that the Plaintiff must prove thus: First he must establish a goodwill or reputation attached to the goods or services which he supplies in the mind of the purchasing public by association with the identifying getup (whether it consists simply of a brand name or a trade description, or the individual 156 157 158 154 155

Beiersdorf East Africa Limited v Emirchem Products Limited [2002] eKLR. Beiersdorf East Africa Limited v Emirchem Products Limited [2002] eKLR. [2013] eKLR. Chapter 506, Laws of Kenya. [1990] All ER 873.

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features of labeling and packaging) under which his particular goods or services are offered to the public, such that the get-up is recognized by the public as distinctive specifically of the plaintiff’s goods or services. Secondly, he must demonstrate a misrepresentation by the defendant to the public (whether or not intentional) leading or likely to lead the public to belief that the goods or services offered by him are the goods or services of the plaintiff. Thirdly, he must demonstrate that he suffers or, in a quia timet action, that he is likely to suffer damage by reason of the erroneous belief engendered by the defendant’s misrepresentation that the source of the defendant’s goods or services is the same source as those offered by the plaintiff.

The Court was satisfied that the Plaintiff had established goodwill. The Plaintiff adduced evidence to the fact that its company had been established over one hundred years ago and had been distributing its product in many countries. Therefore, the Plaintiff had satisfied the court that its goodwill had been ‘...established... by the long usage of the trade mark, and thus the accruing right and interest therein.’ There was also misrepresentation due to the striking similarity in names and packaging between the two products which would create confusion amongst customers. Once the misrepresentation and infringement was proved, damages were presumed. In taking this position, the High Court drew inspiration from Goddard LJ who in the English Court of Appeal case of Draper v Trist159 had stated that, In passing off cases, however, the true basis of the action is that the passing off by the defendant of his goods as the goods of the plaintiff injures the right of property in the plaintiff, that right of property being his right to the goodwill of his business. The law assumes, or presumes, that, if the goodwill of a man’s business has been interfered with by the passing off of goods, damages results therefrom.160

However, in this case the Plaintiff’s prayer for general damages was rejected for in as much as the same was discretionary, the Plaintiff was not able to show that it indeed suffered damage and did not ask for an order for an inquiry into damages. An account of profit was ordered and an injunction issued against the Defendant.

5.8.7 Industrial designs Industrial designs protect the aesthetic aspects (shape, texture, pattern, and colour) of an object, rather than its technical features.161 Under the Industrial Prop [1934] 3 All ER 513. [1934] 3 All ER 513, 526. This shows how the right to property is jealously guarded. The same is illustrated in the case of trespass where one is liable and may be required to pay damages even if no harm has actually occurred. 161 Commission on Intellectual Property Rights, Integrating intellectual property rights and development 159 160

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erty Act, an industrial design must be registered if it is new,162 so as to vest in the holder the exclusive right to sell goods bearing the design.163 The protection period for industrial designs is a term of five (5) years and may be renewed for two (2) more terms.164 Industrial designs have been granted with respect to various shapes of objects, for example, soap and plastic packaging material.165

5.8.8 Technovation A technovation is defined by the Industrial Property Act as a “…solution to a specific problem in the field of technology, proposed by an employee of an enterprise in Kenya for use by that enterprise, and which relates to the activities of the enterprise but which, on the date of the proposal, has not been used or actively considered for use by that enterprise.”166 An employee, whose duty includes the proposing of technovations, is only entitled to a technovation certificate where the degree of creative contribution exceeds that which is normally expected of such employees.167 Where several employees request a technovation certificate for the same technovation, the employee who is the first to make the request is the one entitled to the certificate.168 Where a request for technovation certificate is made jointly by two or more employees, the certificate must be issued in their joint names.169 A technovator is entitled to remuneration where the technovation is communicated to a third party. An example of a technovation is the one in Samson Ngengi Njuguna v Kenya Revenue Authority (KRA),170 where Samson, an employee of KRA, claimed to have developed the Geo-spatial Revenue Collection Information System (GEOCRIS), a software which enables mapping of property locations, ownership and details and the tax status. It enhances tax collection activities especially in the case of rental tax. KRA was awarded for this innovation during the 46th Inter-American Centre

163 164 165 162

168 169 170 166 167

policy, 13. Section 86, Industrial Property Act (Chapter 509, Laws of Kenya). Sections 85 and 92, Industrial Property Act (Chapter 509, Laws of Kenya). Section 88, Industrial Property Act (Chapter 509, Laws of Kenya). See, for example, Kenya Industrial Property Institute, Industrial Property Journal - No. 2016/03, 31/03/2016, 9. Section 94, Industrial Property Act (Chapter 509, Laws of Kenya). Section 95 (2), Industrial Property Act (Chapter 509, Laws of Kenya). Section 95(3), Industrial Property Act (Chapter 509, Laws of Kenya). Section 95(4), Industrial Property Act (Chapter 509, Laws of Kenya). Samson Ngengi Njuguna v Kenya Revenue Authority (Nairobi HC Civil Suit No. 730 of 2012).

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of Tax Administrations (CIAT) General Assembly in 2012. KRA then attempted to launch a system based on the innovation but Samson obtained interim orders claiming that such was an attempt to violate his intellectual property rights in the software and that he should be issued with a technovation certificate. The orders were granted and the matter referred to arbitration.

5.8.9 Plant breeders’ rights Plant breeders’ rights are granted to breeders of new, distinct, uniform and stable plant varieties.171 The Seeds and Plant Varieties Act172 regulates the testing and certification of plant varieties and the granting of property rights to individuals undertaking such activities. It provides for the establishment of a national authority to oversee the seeds and plant varieties protection and administration.173 Plant breeders’ rights are granted where the new plant variety is: morphologically, physiologically or otherwise sufficiently distinguishable by one or more characteristics from commonly known varieties; is uniform or homogenous in its reproduction features; and stable in its essential traits.174 The rights are granted for a duration of twenty-five (25) years in the case of trees and vines and twenty (20) years for other seeds and plant varieties.175 Holders of such rights are to exercise the following rights within the period of protection: produce; reproduce; offer for sale; import; export; and stock. The person has the right to sue in case of infringement.176 Community rights may also arise where rights over the plant varieties may vest in every member of a group with individuals merely considering themselves as possessors of the communal properties.177

5.8.10 Farmers’ rights Farmers’ rights are rights arising from the past, present and future contributions of farmers in conserving, improving and making available plant genetic re Commission on Intellectual Property Rights, Integrating intellectual property rights and development policy, 13. 172 Chapter 326, Laws of Kenya. 173 Section 3A, Seeds and Plant Varieties Act (Chapter 326, Laws of Kenya). 174 Fourth Schedule, Seeds and Plant Varieties Act (Chapter 326, Laws of Kenya). 175 Section 19, Seeds and Plant Varieties Act (Chapter 326, Laws of Kenya). 176 Section 20, Seeds and Plant Varieties Act (Chapter 326, Laws of Kenya). 177 Kameri-Mbote P, ‘Community, farmers’ and breeders’ rights in Africa: Towards a legal framework for sui generis legislation’ International Environmental Law Research Centre, 2003, 4 http://www.ielrc.org/content/a0302.pdf on 23 May 2016. 171

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sources, particularly those in the centres of origin or biodiversity.178 Farmers’ rights are protected under the International Treaty on Plant Genetic Resources for Food and Agriculture. This form of protection was introduced on the realisation that the conventional intellectual property rights system does not adequately cater for the rights of farmers who have conserved and improved indigenous plant varieties for years. For example, classical IPR tools do not recognise local farmers as innovators and, therefore, does not entitle them to such rights.179 Recognition of farmers’ rights is thus necessary to ensure that there is equitable distribution of benefits from genetic resources and to encourage farmers to participate in genetic resource preservation.180 Moreover, the IPR regime protects plant breeders by enabling them to generate revenue from plant varieties due to the fact that they hold plant breeders’ rights (which are akin to patent rights) while the farmers cannot be compensated as there is no system in place to facilitate such compensation.181 Kenya is a party to the International Treaty on Plant Genetic Resources for Food and Agriculture.182 In addition, the Constitution recognises farmers’ rights by requiring the enactment of laws recognising and protecting the ownership of indigenous seeds and plant varieties, their genetic and diverse characteristics and their use by the communities of Kenya.183 However, efforts are underway to introduce an amendment to the Seeds and Plant Varieties Act184 (which deals largely with plant breeders rights) to bring it in conformity with the Constitution.185 Nonetheless, farmers’ rights can still be protected under customary laws as farmers have been using these methods of seed preservation for all traditional crops since time immemorial.186 Article 10, International Treaty on Plant Genetic Resources for Food and Agriculture, 3 November 2001, 2400 UNTS 303. 179 Kameri-Mbote, ‘Community, farmers’ and breeders’ rights in Africa’, 3. 180 Kameri-Mbote, ‘Community, farmers’ and breeders’ rights in Africa’, 3. 181 Kameri-Mbote, ‘Community, farmers’ and breeders’ rights in Africa’, 3. 182 Farmers’ Rights http://www.farmersrights.org/database/kenya.html on 23 May 2016. 183 Article 11(3)(b) and 69(1), Constitution of Kenya (2010). 184 Chapter 326, Laws of Kenya. 185 The Amendment is through the Seeds and Plant Varieties (Amendment) Bill, 2015, whose principal objective is to facilitate the implementation of Article 11(3) (b) and 69(1) of the Constitution. The two Articles require Parliament to enact legislation to recognize and protect the ownership of indigenous seeds and plant varieties, their genetic and diverse characteristics and their use by Kenyan communities and the protection of genetic resources and biodiversity for the equitable sharing of the benefits accruing. 186 Federal Ministry for Economic Cooperation and Development, The UPOV Convention, farmers’ rights and human rights: An integrated assessment of potentially conflicting legal frameworks, Deutsche Gesellschaft für Internationale Zusammenarbeit (GIZ) GMbH, Feldafing 2015, 53. 178

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5.8.11 Traditional knowledge as a form of IPRs Traditional knowledge refers to the knowledge, innovations and practices of indigenous communities, collectively owned and transmitted orally from generation to generation. It is a form of IPRs.187 However, it is not as adequately protected in law as other forms of IPRs, since it does not sit well with the classical conception of IPRs. Lack of a comprehensive indigenous cultural property theory partly explains this situation.188 Existing property structures have a tendency to conceive property in the Eurocentric and narrower sense, thus edging out communally held property.189 The Eurocentric conceptualisation of property is associated with the usage of terms like title, exclusion, alienation, commoditisation and commensurability.190 Such a conceptualisation of property disregards relational, group custody and ownership and control by indigenous communities,191 as discussed in chapter three of this book. Additionally, traditional knowledge is not likely to pass the strict requirements for IPRs protection. For example, traditional knowledge may not meet the patentability test of novelty,192 as it is a trans-generational asset passed down from one generation to the other.193 Because a huge percentage of traditional knowledge is not new, it becomes difficult to identify who the particular creator is as it is handed down from generation to generation.194 An inadequate policy, legal and institutional framework in protecting traditional knowledge has contributed to its loss, destruction and expropriation by both local and international persons, as evidenced by increasing cases of bio-piracy and misappropriation. The case of the extremophiles from Lake Baringo is illustrative of this.195 An extremophile is a type of enzyme in bacteria in Lake Bogoria that has been used to develop bleach for stonewashing denim.196 There has been pat Dagne T, Intellectual property and traditional knowledge in the global economy, Routledge, London, 2015, 2. 188 Johnsson DZ, ‘The branding of traditional cultural expressions: To whose benefit?’ in Frankel S and Drahos P (eds), Indigenous peoples’ innovation: Intellectual property pathways to development, ANU E Press, Canberra, 2012, 162. 189 See chapter three on the African conception of property. 190 Carpenter K, Katyal S and Riley A, ‘In defense of property’ 118 The Yale Law Journal, 6 (2009), 1026. 191 Carpenter, Katyal and Riley, ‘In defense of property’, 1027. 192 Section 22, Industrial Property Act (Chapter 509, Laws of Kenya). 193 World Intellectual Property Organisation, Intellectual property and traditional cultural expressions/ folklore, WIPO Publication No. 913(E), 5. 194 Kardooni R, Kari FB, Yahaya SRB and Yusup SH, ‘Traditional knowledge of orang asli on forests in penisular Malaysia’ 13 Indian Journal of Traditional Knowledge, 2 (2014), 284. 195 US Patent No 5, 733, 767 of 1988, and No. 6, 420, 147 B1 of 2002. 196 Heuer S, ‘The Lake Bogoria extremophile: A case study’, 1, 187

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enting and industrial scale cloning of extremophiles from the Lake for industrial textile and detergent manufacturers without the local community involvement or consultation.197 This is in spite of the fact that the initial collection was for research purposes only and was permitted pursuant to a research permit given to students.198 Another instance of bio-piracy is in Shimba Hills at the coastal region, where the US National Cancer Institute (NCI) collected the shrub Maytenus buchananii and used it to produce maytansine which potentially treats pancreatic cancer.199 The use of the shrub for curing cancer is part of the traditional knowledge of the Digo Community. However, the Institute collected the shrub using the Wadigo’s traditional knowledge but without their consent, recognition or a share of the proceeds from the developed drug.200 Another case study is that of the kiondo, a hand-woven basket used by the Kamba and Kikuyu women to carry farm produce.201 The basket began to be exported in the 1980s to Europe, when the Japanese became interested in it and obtained a patent over it.202 They sold their basket at a lower price than the Kenyan ones resulting in unfair competition.203 The kikoi is a term that refers to a type of clothing worn by the coastal communities in Kenya. It is also exported. The Kikoy Company of the United Kingdom tried to register a trade mark KIKOY in the United Kingdom.204 It made the application but was opposed by Traidcraft Exchange, another UK-based firm that works with poor producers in Africa and Asia,

http://www.public.iastate.edu/~ethics/LakeBogoria.pdf on May 16, 2016. 197 Heuer, ‘The Lake Bogoria extremophile: A case study’. 198 Busienei W, Otswong’o F and Munyi P, ‘National experiences, Kenya: Enzyme case study in Lake Bogoria’ Access and Benefit Sharing and Intellectual Property Rights Workshop, September 2011. 199 Sikoyo G, Nyukuri E and Wakhungu J, Intellectual property protection in Africa: Status of laws, research and policy analysis in Ghana, Kenya, Nigeria, South Africa and Uganda, Africa Centre for Technology Studies Press, Nairobi, 2006, 4. 200 Mugabe J, Kameri-Mbote P and Mutta D, ‘Traditional knowledge, generic resources and intellectual property protection: Towards a new international regime’ International Environmental Law Research Centre Working Paper, 2001, 3, http://www.ielrc.org/content/w0105.pdf on 27 July 2014. 201 Mbeva J, ‘Experiences and lessons learned regarding the use of existing intellectual property rights instruments for the protection of traditional knowledge in Kenya’ in Twarog S and Kapoor P (eds), Protecting and promoting traditional knowledge: Systems, national experiences and international dimensions, United Nations Conference on Trade and Development, UNCTAD/DITC/TED/10, 2004, http://unctad.org/en/docs/ditcted10_en.pdf on 23 May 2016 202 Enchanted Landscapes, ‘The Kiondo and the Kikoi: Are they still a property of Kenya?’ http://www. enchantedlandscapes.com/blog/the-kiondo-and-the-kikoi-do-they-still-belong-to-kenya/ on 16 May 2016. 203 Njuguna E, ‘Intellectual property rights in Kenya: Towards a more effective dispute resolution framework’ LL.M Thesis, University of Nairobi, 2014, 5. 204 Weertman W, Olivier D and Gregorowski R ‘African strategies and developments’ World Trademark Review (2008) http://www.worldtrademarkreview.com on 7 July 2014.

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since the term ‘kikoy’ had become a generic term.205 There was no counterstatement filed and the application was subsequently deemed withdrawn. A grant of the trade mark would have implied that exports from East Africa would not be allowed to enter the United Kingdom markets as it would occasion confusion to customers due to the striking similarity of the marks. Kenya is a signatory to a number of international agreements that seek to protect traditional knowledge.206 These instruments prohibit the misappropriation of traditional knowledge so that it can benefit indigenous communities. However, it must be noted that most of them employ the Eurocentric framework for protecting property which is not appropriate for traditional knowledge. Internally, Kenya has undertaken constitutional and statutory measures towards the protection of traditional knowledge. The Constitution provides a strong basis for the protection of traditional knowledge in Kenya. For instance, it recognises culture as the foundation of the nation and as the cumulative civilisation of the Kenyan people and nation.207 The state is under an obligation to: (a) promote all forms of national and cultural expression through literature, the arts, traditional celebrations, science, communication, information, mass media, publications, libraries and other cultural heritage; (b) recognise the role of science and indigenous technologies in the development of the nation; and (c) promote the intellectual property rights of the people of Kenya.208 Additionally, the state is required to protect and enhance intellectual property in, and indigenous knowledge of, biodiversity and the genetic resources of Kenyan communities.209 Parliament is under an obligation to (a) ensure that communities receive compensation or royalties for the use of their cultures and cultural heritage; and (b) recognise and protect the ownership of indigenous seeds and plant varieties, their genetic and diverse characteristics and their use by the communities of Kenya.210 Torsen M and Anderson J, ‘Intellectual property and the safeguarding of traditional cultures: Legal issues and practical options for museums, libraries and archives’ World Intellectual Property Organization, 2010, 58. 206 They include Convention on Biological Diversity, 5 June 1992, 1760 UNTS 79; Paris Convention for the Protection of Industrial Property, 20 March 1883, 828 UNTS 305; Patent Cooperation Treaty, 19 June 1970, 1160 UNTS 231; International Treaty on Plant Genetic Resources for Food and Agriculture, 3 November 2001, 2400 UNTS 303; UNGA, Declaration on the rights of indigenous peoples, A/ Res/61/295 13 September 2007; and Swakopmund Protocol on the Protection of Traditional Knowledge and Expressions of Folklore, 9 August 2010. 207 Article 11(1), Constitution of Kenya (2010). 208 Article 11(2), Constitution of Kenya (2010). 209 Article 69 (1) (c), Constitution of Kenya (2010). 210 Article 11(3), Constitution of Kenya (2010). 205

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There is a National Policy on Traditional Knowledge, Genetic Resources and Traditional Cultural Expressions of 2009, and a Draft Bill on Protection of Traditional Knowledge and Traditional Cultural Expressions has been prepared.211 The policy seeks to ensure the recognition and protection of traditional knowledge in light of the increasing relevance of intellectual property in the areas of culture and technology.212 There is also a National Policy on Culture and Heritage in place which underscores the centrality of culture and national heritage to the socio-economic and sustainable development of the country. The policy requires the government to take all necessary measures to ensure the protection and promotion of culture and cultural heritage of the communities in the country.213 Since the two policies were formulated before the Constitution of Kenya 2010, there is need to review them and to align them with the constitutional imperatives. A raging debate within IPRs discourses is on whether traditional knowledge should be protected under existing IPRs regime or under a sui generis framework.214 A sui generis structure would be a stand-alone structure set up specifically for traditional knowledge.215 Within the existing IPRs frameworks protection can either be: defensive or positive.216 Defensive protection seeks to prevent others from ‘asserting or acquiring IP rights over TK subject matter’.217 It allows TK information to be published so as to count as prior art and ensure its availability in a search for prior art. This way, traditional knowledge becomes part of already existing material and so it may not be misappropriated. Positive protection ‘entails the active assertion of IP rights in protected subject matter, with a view to excluding others from making specific forms of use of the protected material.’218 It gives TK holders the Ouma M, ‘The policy context for a commons-based approach to traditional knowledge in Kenya’ in De Beer J, Armstrong C, Oguamanam C and Schonwetter T (eds), Innovation and intellectual property: Collaborative dynamics in Africa, University of Cape Town Press, Cape Town, 2014, 141. 212 Republic of Kenya, National policy on traditional knowledge, genetic resources and traditional cultural expressions, July 2009, WIPO/GRTKF/IC/16/INF/25, 3. 213 Republic of Kenya, National policy on culture and heritage, 2009, 2. 214 See OseiTutu J, ‘A sui generis regime for traditional knowledge: The cultural divide in intellectual property law’ 15 Marquette Intellectual Property Law Review (2011), 147. See also Vermeylen S ‘Intellectual property rights and indigenous peoples; A case study of the San in Southern Africa’ CES Working Paper 07/05 (2005) 7. 215 World Intellectual Property Organisation, Intellectual property and traditional cultural expressions/ folklore, 20. 216 World Intellectual Property Organisation, Intellectual property and genetic resources, traditional knowledge and traditional cultural expressions, 2015, 22. 217 Ouma ‘The Policy Context for a Commons-Based Approach to Traditional Knowledge in Kenya’, 138. 218 WIPO ‘Elements of a Sui Generis System for the Protection of Traditional Knowledge’ WIPO/GRTKF/ IC/4/8, 30 September 2002, para 13. 211

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‘right to take action or seek remedies against certain forms of misuse of their TK’ and includes the use of existing IP systems, adaptations and sui generis aspects of existing IP regimes, and wholly sui generis frameworks.219

5.9 Cultural property Cultural property refers to resources with a distinct connection to a particular culture or identity.220 It is this significance that underlies the argument for the special protection of such resources, as explained above.221 Cultural property is recognised both nationally and internationally. The Constitution of Kenya 2010, mandates the state to protect culture and other cultural expressions222 and protect and enhance the intellectual property relating to the indigenous knowledge, biodiversity and genetic resources of communities.223 Internationally, the Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict,224 a founding document on the protection of cultural property, defines cultural property as the ‘moveable or immovable property of great importance to the cultural heritage of every people’ and includes buildings or areas that contain cultural property.225 The Convention recognises the crucial role of cultural property in its preamble, which states that,

WIPO ‘Elements of a Sui Generis System for the Protection of Traditional Knowledge’. See Merryman J, Thinking about the Elgin Marbles: Critical essays on cultural property, art and law, Kluwer Law International, The Hague, 2000. 221 See Underkuffler L, The idea of property: Its meaning and power, Oxford University Press, Oxford, 2003, 110. 222 Article 11, Constitution of Kenya (2010). 223 Article 69(1) (c), Constitution of Kenya (2010). 224 Convention on the Protection of Cultural Property in the Event of Armed Conflict, 14 May 1954, 249 UNTS 240. The war against the Islamic State in Iraq and Syria (ISIS) and insurgencies in Mali highlight the importance of protecting cultural property during armed conflicts. ISIS has been accused numerous times of intentional destruction of cultural heritage such as statues in Iraq as a tactical advantage and based on the fact that they view the cultures in these areas to be sacrilegious and against their extreme beliefs. See He HG, ‘Protecting ancient heritage in armed conflict: New rules for targeting cultural property during conflict with ISIS’ 30 Maryland Journal of International Law, 1 (2015), 180. Mali, a country also known to possess numerous cultural heritage sites, has not been spared either in the conflicts between insurgent groups and government forces. Between 2012 and 2013, extremists in Mali are reported to have destroyed 14 out of the 16 mausoleums with World Heritage status in Timbuktu, Northern Mali, and criminal proceedings were subsequently launched against the suspects at the International Criminal Court (ICC). See UN News Centre, ‘Mali: UN hails war crimes trial for suspect in destruction of historic monuments’ http://www.un.org/apps/news/story.asp?NewsID=51983#.Vzt2NpErK00 on 17May, 2016. 225 Article 1, Convention on the Protection of Cultural Property in the Event of Armed Conflict. 219 220

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damage to cultural property belonging to any people whatsoever means damage to the cultural heritage of all mankind, since each people makes its contribution to the culture of the world.

This statement highlights the importance of cultural property and its regained prominence on the political agenda.226 Indigenous knowledge is one form of cultural property that has gained attention in the property legislative framework. Indigenous knowledge can relate to traditional medicines, hunting or fishing or farming techniques or animal migration patterns or water management and other forms of intangible cultural property such as folklore, native religion,227 songs, rituals ceremonies, dance, traditional knowledge, art, customs, and spiritual beliefs.228 Such forms of knowledge are therefore significant for the development of a country with a significant population living in rural areas and relying on agriculture and other natural resources for survival, like Kenya.

5.10 Common heritage property This refers to the international seabed, the Arctic, Antarctica, and outerspace which are treated as the property of all humankind.229 The Declaration of Principles Governing the Sea-Bed and the Ocean Floor, and the Subsoil thereof, Beyond the Limits of National Jurisdiction230 provides that, [t]he sea-bed and ocean floor, and the subsoil thereof, beyond the limits of national jurisdiction (hereinafter referred to as the Area), as well as the resources of the Area, are the common heritage of mankind.231

These resources are regulated under the Common Heritage of Mankind principle which states that all of humanity is the sovereign over the international com-

Greene S, ‘Indigenous people incorporated? Culture as politics, culture as property in pharmaceutical bioprospecting’ 45 Current Anthropology 2, (2004), 212. 227 Flessas T, ‘Cultural property defined and redefined as Nietzschean Aphorism’ 24 Cardozo Law Review (2003), 1072-1073. 228 Riley A, ‘“Straight stealing”: Towards an indigenous system of cultural property protection’ 80 Washington Law Review (2005), 77. 229 Vogler J, ‘Studying the global commons: Governance without politics?’ in Dauvergne P (ed), Handbook of global environmental politics, 2 ed, Edward Elgar, Cheltenham, 2012, 173. 230 A/RES/25/2749 (XXV) 12 December 1970. 231 UNGA, Declaration of principles governing the sea-bed and the ocean floor, and the subsoil thereof, beyond the limits of national jurisdiction, A/RES/25/2749 (XXV) 12 December 1970, para 1. 226

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mons.232 The common heritage of mankind principle is undergirded by the following norms: that no sovereignty may be acquired or exercised over the Area; the rights to these resources is vested in the whole of humankind; the Area may be used for peaceful purposes; protecting the natural environment; equitably sharing of benefits associated with the exploitation of these resources; and adopting a common management strategy.233 Nonetheless, the resources in the Area have been under severe pressure due to increased advocacy for private economic development.234 However, the Seabed Disputes Chamber of the International Tribunal for the Law of the Sea in its first advisory opinion in Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area,235 imposed strict rules on the deep seabed miners to ensure that harm caused is minimised as the area falls under the common heritage of mankind.

5.11 Conclusion This chapter has provided a brief introduction to the various forms of property recognised under Kenyan law. The legal regimes providing protection for these property forms have also been mentioned with their shortcomings. This chapter helps us appreciate the multifarious forms in which a right in a thing may be claimed and it also gives us a better understanding of the justifications for the conferment of property rights. It is, however, notable that property is always in a form of flux and new entitlements may arise which may still need protection under the law. Innovation in various fields and industries, therefore, require that intellectual property regimes be adaptable in order to maximise protection of any arising property rights or interests.

Shackelford S, ‘The tragedy of the common heritage of mankind’ 27 Stanford Environmental Law Journal (2008), 101. 233 Noyes J, ‘The common heritage of mankind: Past, present, and future’ 40 Denver Journal of International Law and Policy (2012), 451. 234 Shackelford, ‘The tragedy of the common heritage of mankind’, 101. 235 Advisory Opinion, Case No 17, 1 February 2011. 232

Chapter Six

REGULATION OF PROPERTY RIGHTS

6.0 Introduction As pointed out in Chapter 2, property is at times regarded as a creature of the law, and as an affirmative claim that one has as against another in relation to a thing. Law is instrumental in regulating existing property relations and competing interests just as the social, cultural and political institutions are in a given society. Chapter 3 has shown that in the African context, there are communal institutions, values and principles that are vital in governing aspects of access to, use and control over common resources for the benefit of past, present and future generations. Apart from the communal governance of property, there are English property models that emphasise on the role of the state in the regulation of property relations. Property regulation is not an easy affair as it often requires striking a balance between the protection of private property entitlements and promotion of the overriding public interest. Regulation may at times require the state to exercise fiduciary obligations, particularly while holding public property for the benefit of the general public. As such, regulation is most likely to pit the state against the citizens. It becomes even more complex and suspect, where the regulator abuses some of its regulatory powers. This chapter discusses the regulation of property. The discussion commences with a general discussion on the rationale for regulating property. It then proceeds to examine the regulatory powers of the state, to wit, eminent domain and development control powers. A discussion on the public trust doctrine in regulating public property is then undertaken. Similarly, the chapter discusses the regulation of the ‘commons’ and the challenges it offers. The penultimate part of the chapter discusses property rules, and contrasts them with liability and inalienability rules.

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6.1 Rationale for regulating property rights Compared to other legal entitlements, property rights are unique as they govern the attachment that people have over ‘things,’ relationships with ‘things’ and various proprietary ‘activities’1 and interests. As the discourse in chapter one reveals, property rights, unlike other rights, are largely dependent on social relations. One is not a property owner strictly speaking, if others do not recognise and respect his or her rights. Thus, property rules have evolved over time to regulate proprietary relations and the multiple and at times competing interests over property. Property rules are informed by varied circumstances and represent a conundrum of guidelines establishing fluid relationships for various forms of property.2 Murphy and Roberts appreciate this by noting that property rules have emerged over a long period of time as a result of three interconnected yet distinct processes. These are, first, the work of lawyers in their chambers where they devise mechanisms meant to give effect to clients’ wishes. Second, the vicissitudes of litigation. And third, occasional legislative intervention, usually confined to fairly narrow defined problems which lawyers or judges have encountered in the course of their work.3 To this one can also add other social, economic, political and cultural changes in society that may influence property and its regulation. For example, rising population, rising demand for food for agriculture and investment and climate change, may influence property use and property regulation. Property regulation by the state then becomes important in maintaining a civil society,4 order and stability. It is the role of the state to protect private property rights but also promote the public interest.5 Property regulation thus aims at striking a balance between the state’s exercise of its sovereign powers (embodied in its compulsory acquisition powers and development control powers) and the enjoyment of property rights by persons.6 Courts may also play an important role in mediating potential conflicts that arise with the exercise of regulatory powers. Where the state is considered to be overstepping its mandate, the courts steps in

1 2

5 3 4

See di Robilant A, ‘Property: A bundle of sticks or a tree?’ 66 Vanderbilt Law Review, 3 (2013), 871. As will be noted later in this chapter, one of the justifications for compulsory acquisition is the need for a public use or public interest. What is considered to be a public use or public interest is not cast in stone and may evolve over time. Murphy T and Roberts S, Understanding property law, Sweet and Maxwell, London, 1998, 39. Murphy and Roberts, Understanding property law, 5. Burling JS, ‘Novel takings theories: Testing the boundaries of property rights claims’ 4 Brigham-Kanner Property Rights Conference Journal, 39 (2015), 41. Murphy and Roberts, Understanding property law, 38.

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when litigants pursue claims against the state to assert their property rights against the regulatory powers of the state. The existence and manifestation of this balance is what this chapter undertakes to show.7 It is noteworthy that although the law may prescribe property rules that are to guide the state while regulating proprietary relations,8 there is no single framework that contains all property rules. They are scattered in various instruments and in the customs, religious laws, beliefs and traditions of communities.9 Moreover, and because of social changes affecting property relations, rules regulating property are in a constant state of flux. However, because of contestations over the true cradle of property rights, some scholars have dispelled the notion that law is the source of property rights10 and are thus opposed to the use of law in protecting a right whose origin is very much contested. Some, like Blackstone, postulate that, all ‘things’ were given to humankind in common and that everyone took from the public stock to his own use such things as their immediate necessities required.11 Later, humankind started to expropriate these common goods for themselves, putting limits that prohibited others from utilising these goods, hence the idea of possession.12 Law, therefore, developed to protect the expropriated goods for individuals and to govern relationships among people. Regulation of property is also done to ensure there are efficient markets. As discussed in chapter 4, an economic view of property posits that an efficient market system arises if the property system confers ownership over all resources, exclusivity, transferability and enforceability. Property entitlements cannot be secure and easily tradable without adequate state protection.

For example, in Kenya the law allows any person a right of access to a court of law if his/her proprietary interest has been affected in the exercise of compulsory acquisition powers. See Article 40(3)(b)(ii), Constitution of Kenya (2010). 8 See generally, Articles 40 and 66, Constitution of Kenya (2010). 9 Johnson D, ‘Reflections on the bundle of rights’ 32 Vermont Law Review (2007), 247. 10 See, for example, Ellickson RC, Order without law: How neighbours settle disputes, Harvard University Press, Cambridge MA, 1991. 11 Blackstone W, Commentaries on the laws of England in four books, vol 1, JB Lippincott Company, Philadelphia, 1893, 305. 12 Blackstone, Commentaries on the laws of England in four books, 305. 7

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6.2 Eminent domain or compulsory acquisition power of the State The right to own property and the sanctity of property rights has been the subject of many scholarly writings.13 Judicial attitude has for many years leaned towards the jealous protection of property rights. Any limits and intrusions on the right to property are seen as being uncalled for and are thus prohibited. Justice Patterson succinctly explains the sanctity of property rights by noting that, …it is evident, that the right of acquiring and possessing property, and having it protected, is one of the natural, inherent and inalienable rights of man. Men have a sense of property: property is necessary to their subsistence, and correspondent to their natural wants and desires; its security was one of the objects that induced them to unite in society. No man could become a member of a community, in which he could not enjoy the fruits of his honest labour and industry. The preservation of property, then, is a primary object of the social compact.14

So cherished is the right to property, that it is nearly considered an absolute right save for two conditions that have been used to qualify its almost absolute nature. First is the stipulation that one should not use his property in a manner that impairs his/her neighbour’s right to enjoy his/her property. And second is the legal requirement that private property rights must bow to the superior rights of the sovereign when called upon to surrender the property for public exigencies.16 The first proposition is what is commonly referred to as the development control or police power of the state while the second refers to the eminent domain or compulsory acquisition powers. 15

The origins of the doctrine of eminent domain are traceable to the feudal notion of landholding, where the state as a sovereign had radical title to all the land in its territory,17 and could thus take away private property interests. However, with

See, for example, Blackstone, Commentaries on the laws of England in four books; Cohen F, ‘Dialogue on private property,’ 9 Rutgers Law Review (1954); Michelman F, ‘Property as a constitutional right’ 38 Washington and Lee Law Review (1981); Levy LW, ‘Property as a human right’ in Ely JW (ed), Main themes in the debate over property rights, Vol 6, Garland Publishing, New York, 1997; Merrill T, ‘Property and the right to exclude’, 77 Nebraska Law Review (1998); Honoré A, ‘Ownership’ in Coleman J (ed), Readings in the philosophy of law, Garland Publishing, New York, 1999; and Friedman G, ‘The sanctity of property rights in American history’ Political Economy Research Institute Working Paper Series, 14 (2001). 14 Patterson J in Vanhorne’s Lesee v Dorrance, 2 U.S. 304, 310 (1795). 15 See Blackstone, Commentaries on the laws of England in four books; also Paul EF, Property rights and eminent domain, Transactional Publishers, New Brunswick, 1987. 16 Paul, Property rights and eminent domain, 185. 17 Paul, Property rights and eminent domain, 185. 13

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time and as the doctrine developed, two conditions were imposed on the exercise of this power. First, the expropriation had to be for a public use. And second, the government had to pay just compensation for the taking of property.18 It is in this regard that Hugo Grotius notes that, The property of the subject is under the eminent domain of the State, so that the State or he who acts for it may use and even alienate and destroy such property, not only in cases of extreme necessity…but for ends of public utility, to which ends those who found civil society...intended that private ends should give way. But it is to be added that when this is done the State is bound to make good the loss to those who lose their property.19

It is clear from this passage that without the two pre-conditions, the exercise of eminent power by the state cannot be justified. One can also argue, therefore, that compulsory acquisition of property is justifiable from a social-utilitarian outlook, as it overrides private property interests to benefit the wider public. Again, the exercise of the power by the state is justified on the basis that it is the guardian and defender of the public interest, and enforcer of property rights. It is worth noting that in Kenya today the power cannot be exercised as in feudal times. Whereas in feudal times, the sovereign had radical title over all land, in Kenya today radical title belongs to the people of Kenya. As such, the exercise of compulsory powers must follow due process as explained in subsequent chapters of this book. Let us examine the two pre-conditions. Compulsory acquisition is only exercisable where the state intends to acquire a person’s property for a public purpose20 or in the public interest. The ideological underpinning here is that if the state’s power to take property is left unrestricted, it can jeopardise private property rights.21 For example, the state can extinguish one’s private property as has happened in Kenya before, and vest them in another private person based on political patronage or cronyism. Thus, the exercise of compulsory acquisition powers should strive towards

Alexander GS and Penalver EM, An introduction to property theory, Cambridge University Press, Cambridge, 2012, 157. 19 Grotius H, De jure belli ac pacis, (1625), Nijhoff, The Hague, 1948, as cited in Ramanathan U, ‘A word on eminent domain’ http://www.ielrc.org/content/a0902.pdf on 11 May 2015. 20 Section 2, Land Act (Act No 6 of 2012) defines public purposes to include: transportation including roads, canals, highways, railways, bridges, wharves and airports; public buildings including schools, libraries, hospitals, factories, religious institutions and public housing; public utilities for water, sewage, electricity, gas communication, irrigation and drainage, dams and reservoirs; public parks, playgrounds, gardens, sports facilities and cemeteries; security and defence installations; settlement of squatters, the poor and landless, and the internally displaced persons; and any other analogous public purpose. 21 See Rakove J, Original meanings: Politics and ideas in the making of the constitution, Alfred A. Knopf, New York, 1996, 314-315. 18

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ensuring an aggregate public utility is arrived at with the taking.22 There ought to be clear safeguards in place to ensure that this power is not abused.23 Thomas Cooley clearly articulates and rationalises this proposition when he asserts that: …the due protection of the rights of private property will preclude the Government from seizing it in the hands of the owner, and turning it over to another on vague grounds of public benefit to spring from a more profitable use to which the latter will devote it.24

One of the most contentious debates around eminent domain regards what constitutes a public purpose. The US Supreme Court had occasion to address this question in the case of Kelo v City of New London.25 In this case, the complainants’ properties were being acquired for use in an economic development plan. The plan was expected to increase jobs and raise taxes. The complainants argued that this did not constitute a public purpose. The Court ruled that even though the land would not be open to the public, the development plan constituted a public use. The Court rejected any literal requirement that condemned property be put into use for the general public26 arguing that such a literal requirement “proved to be impractical given the diverse and always evolving needs of society.”27 It further held economic development to be a classic government function incapable of distinction from other public purposes previously upheld by the Court.28 It rejected the argument that acquisition for economic development may “blur the boundary between public and private takings…”29 For the Court, the issue to be determined is whether the purpose in question is public. It did not concern itself with the question whether a particular parcel of land was necessary for the project.30 The Court noted that: [o]nce the question of the public purpose has been decided, the amount and character of land to be taken for the project and the need for a particular tract to complete the integrated plan rests in the discretion of the legislative branch.31 See Cooley TM, A treatise on the constitutional limitations which rest upon the legislative power of the states of the American union, Little, Brown and Co, Boston, 1868. 23 See Cooley, A treatise on the constitutional limitations which rest upon the legislative power of the states of the American union. 24 Cooley, A treatise on the constitutional limitations which rest upon the legislative power of the states of the American union, as cited in Kelly D ‘The “public use” requirement in eminent domain law: A rationale based on secret purchases and private influence’ http://www.law.harvard.edu/programs/olin_center/fellows_papers/pdf/Kelly_5.pdf on 11 May 2015. 25 125 S. Ct. 2655 (2005). 26 Kelo v City of New London 125 S. Ct. 2655 (2005), 2262. 27 Kelo v City of New London 125 S. Ct. 2655 (2005), 2662. 28 Kelo v City of New London 125 S. Ct. 2655 (2005), 2665-2667. 29 Kelo v City of New London 125 S. Ct. 2655 (2005), 2666. 30 Kelo v City of New London 125 S. Ct. 2655 (2005), 2668. 31 Kelo v City of New London 125 S. Ct. 2655 (2005), 2668 (quoting Berman v Parker, 348 U.S. 26, 35–36 22

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The US Supreme Court has construed the ‘public use’ requirement quite broadly. Two main approaches have been adopted by the Supreme Court. The first approach is that a ‘public use’ requirement will be met so long as the use of eminent domain powers by the state is ‘rationally related to a conceivable public purpose’. This was the holding in Hawaii Housing Authority v Midkiff where it was held that the taking of land concentrated in the hands of a few individuals for distribution to the wider population amounted to a legitimate public purpose.32 The second approach is that the acquired property needs not be open to the general public after the taking and the property may even be turned over to some private use33 as held in Kelo v City of New London. Similarly, in Kenya the law has stipulated that compulsory acquisition must be done pursuant to a public purpose. For instance, the repealed Constitution provided that land could be compulsorily acquired if it was in the interest of defence, public safety, public order, public morality or the promotion of public benefit.34 However, as discussed in subsequent chapters, eminent domain powers under the repealed Constitution were often abused by government officials. Currently, the 2010 Constitution has sought to remedy this35 by requiring compulsory acquisition, (a) to be done for a public purpose or in the public interest; (b) prompt payment in full of just compensation be paid to the person deprived of property; and (3) allowing any person with an interest or right over that property a right of access to a court of law. Public purposes have been defined in law to include: transportation including roads, canals, highways, railways, bridges, wharves and airports; public buildings including schools, libraries, hospitals, factories, religious institutions and public housing; public utilities for water, sewage, electricity, gas communication, irrigation and drainage, dams and reservoirs; public parks, playgrounds, gardens, sports facilities and cemeteries; security and defence installations; settlement of squatters, the poor and landless, and the internally displaced persons; and any other analogous public purpose.36 The courts in Kenya have also held that compulsory acquisition can only be done if the taking is for a public purpose. In Joseph K Nderitu and 23 others v At-

(1954)). 467 U.S. 229 (1984). Emanuel SL, Emanuel law outlines: Property, 8 ed, Walters Kluwer, New York, 2012, 298. Section 75(1)(a), Repealed Constitution. Article 40(3), Constitution of Kenya (2010). See also Part VIII, Land Act (Act No 6 of 2012) on the procedure for compulsory acquisition in Kenya. 36 Section 2, Land Act (Act No 6 of 2012) 33 34 35 32

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torney General and 2 others37 it was held that Article 40 of the Constitution gives all persons the right to property and the property can only be compulsorily acquired if the acquisition is for a public purpose or is in the public interest. The petitioners were seeking conservatory orders to prevent the respondents from compulsorily acquiring their land without following due process. The other requirement is that just and adequate compensation must be paid to the person(s) whose property has been acquired. Just compensation is meant to ensure that the person is taken back to the position where they could have been had their property not been acquired compulsorily.38 Courts have interpreted just compensation to mean the fair market value of property.39 This is to ensure that the owner of the property fetches an equivalent of what the sale of the property at the market value could have given him. The requirement for just compensation is traceable from among others, the Bible and the Magna Carta. In the Bible, Ahab, the King of Samar’ia, asked Naboth, the Jezreelite, to give him his vineyard so that in return he may get another vineyard or its value in money.40 Article 28 of a 1297 version of the Magna Carta provided that the King could not ‘take grain or other chattels of any one without immediate payment thereof in money…’ It is evident from this discussion, that the limits placed upon the exercise of the eminent domain power are aimed at striking a balance between the protection of private property on one hand, and the promotion of the public interest through the acquisition, on the other. To achieve this balance in Kenya where property (especially land) is so emotive and contested requires strict adherence to the constitutional and statutory provisions requiring due process in exercise of the power. Courts have been reluctant to invalidate the exercise of compulsory acquisition powers where due process has been followed. In Patrick Musimba v National Land Commisison & 4 others,41 the Petitioner claimed that the construction of the standard gauge railway was being done in a manner that breached his statutory and constitutional rights. It was the petitioner’s claim that the National Land Commission and the Kenya Railways Corporation had not given adequate compensation during the acquisition and that this was in violation of Articles 40, 60 and 47 of the Constitution. The Court held that the standard gauge railway project undertaken Constitutional Petition No 29 of 2012. See Wyman K, ‘The measure of just compensation’ 41 University of California Davis Law Review, 1 (2007), 239. 39 See United States v 50 Acres of Land, 469 U.S. 24, 25-6 (1984). 40 The Holy Bible, 1 Kings 21: 1-2. 41 Petition No 613 of 2014. 37 38

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by the government had demonstrated the public use requirement and the compulsory acquisition was justified. The Court, however, highlighted that once the value of compensation to be issued had been determined, the State could go ahead and acquire the land notwithstanding the fact that compensation had not yet been paid. However, where strict adherence to the requirements of acquisition is lacking courts have revoked such irregular processes.42 For example, where notice for acquisition ought to be given but the same has not been given, courts have declared the resultant acquisition illegal. In Coastal Aquaculture Ltd v Commissioner of Lands, the Court held that a notice of acquisition failed to ‘comply with the law in that the name and identity of the public body and the purposes for which such public body requires the land are not disclosed.’43 Procedural safeguards have been established to be critical in ensuring protection of the liberties of individuals against interference by the state.44 In Abdulla Akiio & 2 others v Kenya Urban Roads Authority,45 the petitioners were challenging the constitutionality of the compulsory acquisition done by the respondents and they also claimed the amount of the proposed compensation to be inadequate. It was held that disputes relating to compulsory acquisition of land were to be resolved by the Environment and Land Court. In addition, governmental decisions on compulsory acquisition are subject to judicial review since they are an exercise of powers donated by statute.46 The decisions may be appealed against in the Environment and Land Court but this may not preclude the right to judicial review.47

6.3 Development control or police powers Apart from the power to compulsorily acquire property, the state has the power to regulate the manner in which individuals use property and the uses they put property to. It is a policing power that the state has over the use of property. Just like Akech M, ‘Land, the environment and the courts in Kenya’, Background Paper for the Environment and Land Law Reports (2006), 25 http://legacy.landportal.info/sites/default/files/land_env_background_paper.pdf on 27 June 2016. 43 Mombasa High Court Miscellaneous Civil Suit No 169 of 2000. See also Sea Star Malindi Ltd v The Kenya Wildlife Services [2002] KLR 1. 44 See Article 40(3), Constitution of Kenya (2010). 45 Petition No 53 of 2015. 46 Re Kisima Farm Ltd [1978] KLR 36. 47 Sifuna N ‘Using eminent domain powers to acquire private lands for protected area wildlife conservation: A survey under Kenyan law’, 2 Law, Environment and Development Journal, 1 (2006), 99. 42

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compulsory acquisition, police power is a representation of the sovereign powers of the state. Nevertheless, the exercise of police power does not extinguish property rights but merely regulates property use to vindicate the overriding public interest.48 Again, unlike eminent domain powers, the state is not obligated to pay compensation whenever it exercises its police power, on the rationale that it is simply requiring the property owner to stop causing harm to the public interests.49 Some of the public interests the power seeks to protect are health, safety, morals and the general welfare of its citizens.50 In Kenya, this power is enshrined in the 2010 Constitution which provides that the ‘State may regulate the use of any 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 use planning.’51 For instance, in the interest of defence and public safety, the state may prohibit property owners near an airport or military airbase from constructing tall buildings exceeding a certain number of floors, since they may pose a threat to aircraft landing and taking off. It may also set aside land for different uses such as industrial, residential, educational, religious, and recreational purposes. Police powers can also be invoked if a property owner uses his/her house as a brothel, in the protection of public morality. Being a regulatory tool, police power can also be used by the state in instances where an individual is using property in a manner that compromises the enjoyment of property rights by others. For example, where one’s use of land becomes a nuisance52 to the neighbour, the state through the courts can injunct the offending acts or omissions that are causing nuisance. In property law, police power is said to be more elusive than the eminent domain power as it is more expansive and less circumscribed by constraints upon its exercise.53 However, the police powers of the state are more intrusive and have a great impact on the enjoyment of rights.54 The wide scope of the regulatory powers of the state is well explained by Justice Marshall thus: They form a portion of that immense mass of legislation, which embraces everything within the territory of a State, not surrendered to the general Government; all of which can 50 51 52 53

Akech M, ‘Land, the environment and the courts in Kenya’, 11. Akech M, ‘Land, the environment and the courts in Kenya’, 11. Paul, Property rights and eminent domain, 103. Article 66(1), Constitution of Kenya (2010). Nuisance generally refers to the unreasonable interference with another’s use and enjoyment of land. Republic of Kenya, Report of the commission of inquiry into the land law system of Kenya on principles of a national land policy framework constitutional position of land and new institutional framework for land administration, 2002, 42. 54 See Gibbons v Ogden, 9 Wheat 1 (U.S., 1824). 48 49

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be most advantageously exercised by the States themselves. Inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a State, and those which respect turnpike-roads, ferries, etc., are component part of this mass.55

Because of the expansive nature of police power, it is common to find different laws addressing aspects of public health, land, land use planning, defence, morality, public order, public safety, etc.56 Land use planning laws,57 for instance, require persons intending to build houses on their property to obtain the permission of ‘planning authorities’, which are obligated to make physical plans. The idea is to protect neighbourhoods by requiring people to put up structures that comply with the relevant plans.58 Similarly, environmental laws could require a person intending to put up a programme, activity or projects which have any adverse impacts on the environment to have an environmental impact assessment study done.59 The rationale is to ensure that such programmes, activities or projects do not take place without the authorisation of the National Environment and Management Authority. There could also be regulations requiring a local authority to protect areas such as historic sites or preventing individuals from changing the outlook of properties in those areas.60 Examples of regulations affecting property use are the Noise and Excessive Vibration Regulations which prohibits an owner from making or causing to be made any loud, unreasonable, unnecessary or unusual noise which annoys, disturbs, injures or endangers the comfort, repose, health or safety of others and the environment.61 There are regulations that seek to prevent different forms of pollution by property owners in Kenya.62

Gibbons v Ogden, 9 Wheat 1 (U.S., 1824), 203. These laws include the public health laws, water laws, forest laws, wildlife laws, marine resources laws, agriculture laws, environmental laws and other land use laws in a country. 57 For example, Urban Areas and Cities Act (No 13 of 2011) and Physical Planning Act (Chapter 286, Laws of Kenya). 58 Emanuel, Emanuel law outlines, 294. 59 Section 58, Environmental Management and Co-ordination Act (Chapter 387, Laws of Kenya). See also Regulation 11, Environmental (Impact Assessment and Audit) Regulations (2003). 60 Emanuel, Emanuel law outlines, 294. 61 Regulation 3, Environmental Management and Coordination (Noise and Excessive Vibration Pollution) (Control) Regulations (2009). 62 These include Environmental Management and Coordination (Water Quality) Regulations (2006); Environmental Management and Coordination (Waste Management) Regulations (2006); and Environmental Management and Coordination (Noise and Excessive Vibration Pollution) (Control) Regulations (2009). 55 56

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6.4 Public trust doctrine Most property regimes recognise the fact that certain goods are vested in the general public, to be enjoyed in common and for the benefit of all in equal measure.63 Such resources that are vested in the public for the good of all are referred to as public property.64 Individuals are prohibited from arbitrarily expropriating such goods because the public purposes they are meant to serve may be defeated.65 With public property, a form of ‘trusteeship’ is established where the state is put under a fiduciary duty to protect the property in the public interest.66 Joseph Sax argues that the application of the doctrine places useful restrictions on the use and management of public property in three broad ways.67 First, property subject to the trust must not only be used for a public purpose, but must be held available for use by the general public. Second, the property may not be sold out, even for a fair cash equivalent. And third, the property must be maintained for particular types of uses.68 Public property creates significant interests that are so intrinsically important to every citizen that their free availability tends to mark the society as one of citizens rather than one of serfs.69 It is the public trust doctrine that informs the establishment of public utilities such as national parks, public beaches, public grounds for recreation and public ways of enjoyment for all citizens. It is imperative for the state to ensure that such resources are put to their proper uses and that it only acts as the custodian of public goods. In this connection, the Supreme Court of Ohio has observed that: ‘...the State as trustee for the public cannot by acquiescence abandon the trust property or enable a diversion of it to private ends different from the object for which the trust was created. If it is once fully realized that the State is merely the custodian of the legal title, charged with the specific duty of protecting the trust estate and regulating its use, a clearer view can be had. An individual may abandon his private property, but a public trustee cannot abandon public property.’70

Sax J, ‘The public trust doctrine in natural resource law: Effective judicial intervention’, 68 Michigan Law Review (1970), 471. 64 See the discussion in chapter 5 on public property. 65 Sax J, ‘The public trust doctrine in natural resource law’, 485. 66 Sax J, ‘The public trust doctrine in natural resource law’, 485. 67 Sax J, ‘The public trust doctrine in natural resource law’, 471. 68 Sax J, ‘The public trust doctrine in natural resource law’, 471. 69 Sax J, ‘The public trust doctrine in natural resource law’, 484. 70 State v Cleveland & Pittsburgh R.R, 94 Ohio St. 61, 80, 113 N.E. 677, 682 [1916]. 63

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In Kenya, there are many incidences of misappropriation of public property and abuse of the public trust by the state and its agents. Public properties including public land set apart for state corporations, public schools, hospitals, forest lands, riparian areas and other public utilities have been converted into private ownership, courtesy of dubious and corrupt dealings by state officials.71 One major incident of abuse of the public trust doctrine relates to attempts by Kenya Times Media Trust to expropriate Uhuru Park grounds, which is used by the public for recreational purposes and holding of national events in Nairobi.72 Incidences of grabbing of land meant for public purposes by politicians continue unabated in 2016 as evidenced by increased cases of grabbing of public school plots.73 There is need for increased vigilance by members of the public to protect public property especially where the state has abdicated with abandon its fiduciary duties to protect such goods. Thus, efforts by civil society organisations in leading campaigns to safeguard these areas and instituting suits74 are a welcome move.

6.5 Regulation of the commons Commons are resources that are held collectively, cooperatively or commonly. Most theorists of collective action argue that people placed in a situation in which they could all benefit from co-operation will be unlikely to co-operate in the absence of an external enforcer of agreements.75 Others contend that com This has been the case in Kenya especially with public land which could be illegally and irregularly allocated by public officers to private individuals and corporations related to those officials, to the detriment of the citizenry. The Report of the Commission of inquiry into the land law system of Kenya on principles of a national land policy framework constitutional position of land and new institutional framework for land administration, 2002, which is discussed in subsequent chapters of this work chronicles how the misappropriation of public property in Kenya has happened from the colonial to the present times. 72 See Wangari Maathai v The Kenya Times Media Trust [1989] KLR 267, where Uhuru Park, a public recreational ground, was about to be grabbed and used to put up a sixty storey building by Kenya Times Media Trust in the Moi era. See also recent incidences of grabbing of land by politicians meant for public schools. 73 For example, the case of Lang’ata Road Primary School playground. See “Pupils injured as police disperse protesters over Langata Primary school land grab” http://www.standardmedia.co.ke/article/2000148423/pupils-injured-as-police-disperse-protesters-over-langata-primary-school-land-grab 74 See Maathai v The Kenya Times Media Trust Ltd Civil Case 5403 of 1989. 75 See Wade R, ‘The management of common property resources: Collective action as an alternative to privatisation or state regulation’ 11 Cambridge Journal of Economics (1987), 95. See also Ostrom E, Governing the commons: The evolution of institutions for collective action, Cambridge University Press, Cambridge, 1990. 71

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mon property resources are bound to be over-exploited as demand rises, and thus propose privatisation or state regulation as a solution.76 However, Okoth-Ogendo77 writing about the African commons, and Robert Wade on Indian villages, reach the conclusion that local communities are able to sustain locally-based rules of restrained access to common property resources78 implying that not all commonly held resources are open access resources. Wade argues that there are no good analytical reasons for presuming that common property regimes will generally fail, and that the “dismal frequency of degraded grazing commons, despoiled forests, over-exploited groundwater and depleted fisheries” reveals that collective action cannot be presumed to be the only viable option for common property resource management.79 Distinguishing between public goods and common-pool resources is important to understand why one and not the other is prone to over-exploitation and depletion. As seen in chapter four, public goods, can be used by many at the same time without rivalry because exclusion is difficult. By contrast, common-pool resources are finite goods, and one person’s use reduces what remains for others.80 It is for this reason that common-pool resources are potentially subject to congestion, depletion, or degradation, thus explaining the need for regulating common property. Common property resources including the African communal way of holding property are all forms of ‘commons’ which are resources shared by a group of people.81 Because the resources are shared, it does not mean that there are no rules regulating access, use and control of resources, as suggested by scholars such as Hardin. A commons is an institutional form of structuring the right to access, use and control of resources,82 where the resource is available for the use of every member.83 As a result scholars of the commons argue that, under certain conditions, Wade, ‘The management of common property resources’, 95. See also Hardin G, ‘The tragedy of the commons’ 162 Science, New Series, 3859 (1968), 1243-1248. 77 See Okoth-Ogendo HWO, ‘The tragic African commons: A century of expropriation, suppression and subversion’ Programme for Land and Agrarian Studies, University of the Western Cape, Occasional Paper Series No 24 (2002). 78 Wade, ‘The management of common property resources’, 95-96. 79 Wade, ‘The management of common property resources’, 95-96. 80 Wade, ‘The management of common property resources’, 95-96. 81 See Hess C and Ostrom E (eds), Understanding knowledge as a commons: From theory to practice, The Massachusetts Institute of Technology Press, Cambridge, 2007. 82 Benkler Y, The wealth of networks: How social production transforms markets and freedom, Yale University Press, New Haven, 2006, 60. 83 Lubna H, ‘Revisiting commons – Are common property regimes irrational?’ Munich Personal RePEc Archive Paper, No 8316 (2002), 4-5. 76

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communally managed resources can be effectively managed when decisions are made by communities,84 meaning that the holding of such resources is not in the form of an open access resource. Likewise, and as canvassed in chapter three, African property holding is well regulated. Okoth-Ogendo explains that there are internal mechanisms for the management of and determination of access to resources. Structurally, the African commons are managed and protected by a social hierarchy organised in the form of an inverted pyramid with the tip representing the family, the middle the clan and lineage, and the base the community. As Ostrom explains, there are decision-making levels dealing with issues of allocation, use and management of resources, based on scale, need, function and process. There is a body of common values and principles embodied in the relevant African customary laws that undergird decision-making at each level. Most importantly, property use, control and holding is greatly regulated due to the fact that the radical title is always located, in all members of the group past, present and future, constituted as corporate entities. Exclusion within the community thus becomes difficult.85 At the normative level, access to common resources is based on membership of a given community; and performance of socially-defined obligations which are assumed on the basis of reciprocity by and to each member of the social hierarchy. The quantum of access rights is dependent on membership and the specific function for which access to the resources is required.86 The regulation of indigenous community resources, a form of commons, has generated much debate, especially in Latin America where it has been argued that indigenous groups have a ‘sui generis social, cultural and spiritual relationship’ with their land and environmental resources.87 Land and the environment is central to the identity of indigenous groups and their property rights cannot be extinguished by the state in exercise of compulsory acquisition powers.88 The validity of the property rights of indigenous groups cannot be lost where the land is taken away 86 87

See Ostrom, Governing the commons. Okoth-Ogendo, ‘The tragic African commons’, 2-3. Okoth-Ogendo, ‘The tragic African commons’, 2-3. Fisher AD and Lundberg M, ‘Human rights’ legitimacy in the face of the global ecological crisis - Indigenous peoples, ecological rights claims and the Inter-American human rights system’ 6 Journal of Human Rights and the Environment, 2 (2015), 183. See also Howden K, ‘Indigenous traditional knowledge and native title’ 24 UNSW Law Journal (2001), 65-76. 88 Fisher AD and Lundberg M, ‘Human rights’ legitimacy in the face of the global ecological crisis’, 183. See also Heinz Klug, ‘Defining the property rights of others: Political power, indigenous tenure and the construction of customary law,’ Working Paper Series, 22(1999), 10-15. 84 85

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from them or where they have to leave it unless the rights are lawfully transferred. Where the land is taken away without their consent, they are entitled to restitution or replacement with land of equal quality.89 In Saramaka People v Suriname,90 the Court stated that ‘a State may restrict the use and enjoyment of the right to property where the restrictions are: a) previously established by law; b) necessary; c) proportional, and d) with the aim of achieving a legitimate objective in a democratic society.’ The Court, however, also placed limits on a State’s authority to subordinate the rights of indigenous peoples, ruling that such restrictions must not violate the right of indigenous peoples to survival. In order to ensure this protection, the Court prescribed a series of safeguards which require States to: ensure effective participation of the people affected in the decision; guarantee that the peoples affected will receive a reasonable benefit from such a plan; and ensure that prior to granting any concession, independent and technically sound environmental and social impact assessments be undertaken to mitigate any negative effects. The first safeguard calls for the effective participation of the people affected in line with their customs and traditions regarding any development or investment plan within their territory. The Court further defines this State obligation as including the State’s duty to disseminate and receive information, and specifies that consultations must be in good faith, be culturally appropriate, and have the intent of reaching an agreement. In the case of large-scale developments that could have an impact on the survival of a people, the State has the duty not only to consult, but also to obtain free, prior, and informed consent. The Saramaka decision was also reaffirmed in the case of the Kichwa indigenous people of Sarayaku v Ecuador,91 where the court stated that consultations should be conducted in good faith following appropriate cultural procedures and must aim to reach agreement. According to the court, consultation does not constitute a mere formality, but instead should be a ‘true instrument of participation. . . responding to the ultimate goal of establishing a dialogue between the parties based on principles of mutual trust and respect, and with a view to reaching consensus between them.’ Raging debates about indigenous people’s property rights support the view that the western models for regulating property are not ideal for governing the commons.

Fisher and Lundberg, ‘Human rights’ legitimacy in the face of the global ecological crisis’, 183. Inter-American Court of Human Rights, Judgment of November 28, 2007 (Preliminary Objections, Merits, Reparations, and Costs). 91 Inter-American Court of Human Rights, Judgment of 27 June 2012 (Merits and reparations). 89 90

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The Constitution of Kenya 2010, recognises communal ownership of land as one of the categories through which land can be owned in the country.92 Community land can be held by communities identified on the basis of ethnicity, culture or similar community of interest.93 Regulation of communal property can, therefore, be done through the mechanisms established by communities in their different forms. It is notable that among many ethnic communities, mechanisms were devised to enable members use such entitlements as communal land, and such measures were meant to ensure that these limited resources were put to sustainable use.94 Further, the Community Land Act95 establishes institutions like the Community Assembly and Community Land Management Committees that are tasked with the management of community land.96 It is, however, worth noting that the regulation of communal property is not something that is cast in stone due to the constantly changing nature of communities and the cultures that guide ethnic communities.

6.5.1 Property rights and the tragedy of the commons phenomenon As pointed out above, there are scholars who argue that property rights in common resources are non-existent or poorly defined so that no one has adequate legal rights to protect them against misuse.97 Lack of clearly defined property rights is likely to give people the incentive to use such resources without paying for them or without taking due regard of the fact that such resources are exhaustible.98 In discussing how the tragedy of the commons arises, Hardin gives the example of a pasture that is open to all. In a pasture, each rational herdsman is expected to increase his herd of cattle in order to reap maximum benefits.99 Increase in the number of cattle leads to overuse of the pasture, beyond its carrying capacity, occasioning a tragedy.100 Such a tragedy is also prone to arise with other common resources such as fisheries where a person can overfish to the detriment of others. It can also arise 94 95 96 97 98

Article 63, Constitution of Kenya (2010). Article 63(1), Constitution of Kenya (2010). See Belloncle G, La question paysanne en Afrique noire, Karthala, Paris, 1982. Community Land Act (Act No. 27 of 2016). See Section 7 and 15, Community Land Act (Act No. 27 of 2016). See, for example, Hardin G, ‘The tragedy of the commons’. Butler H, Drahozal C and Shepherd J, Economic analysis for lawyers, 3ed, Carolina Academic Press, Durham, 2014, 21. This creates the scenario cited earlier referred to as the ‘free rider problem’ in economic parlance. 99 See Hardin G, ‘The tragedy of the commons’. 100 Hardin G, ‘The tragedy of the commons’, 1244. 92 93

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in environmental regulation, where industries may refuse to comply with standards or may lower those standards so as to make greater profits. Adoption of high environmental standards may entail substantial costs for industries, and thus opt for lower standards or even non-compliance.101 The net effect is that if most industries adopt lower or no standards, there will be higher levels of pollution, and a tragedy will ensue.

6.6 Property rules, liability rules and inalienability rules So far the discussions in chapters 4 and 5 have shown the uniqueness of property and the importance of its regulation. In the foregoing parts of this chapter, it was also found that the state has an interest in regulating property rights. This regulation can broadly take the form of property rules, under which the state guarantees property rights against infringement, or liability rules where the state discourages violation of the property rights by requiring violators to pay victims for a harm suffered.102 For example, the government can condemn an industry that is polluting an adjacent river to pay for the pollution and compensate those suffering harm due to pollution. As a regulator, the state also prevents certain transactions in entitlements from taking place in the market place; this represents inalienability rules. For instance, a spouse cannot dispose of matrimonial property either as a transfer, lease or charge, without the consent of the other. Thus, in regulating property relations, a legal system must first deal with the problem of ‘entitlements.’103 It is the state, especially from a positivistic point of view, that will determine what entitlements amount to property. If there is a conflict between two or more persons, it is the state that determines whether there is a violation of a property right or whether one has a right to be free from pollution, et cetera.104 Once the state makes that determination, others must of necessity respect that entitlement. Stewart R, ‘Pyramids of sacrifice? Problems of federalism in mandating state implementation of national environmental policy’ 86 Yale Law Journal, 6 (1977), 1212. 102 Kaplow L and Shavell S, ‘Property rules versus liability rules: An economic analysis’ 109 Harvard Law Review (1996), 715. 103 Calabresi G and Melamed A, ‘Property rules, liability rules and inalienability: One view of the cathedral’ 85 Harvard Law Review (1972), 1092-1093, 1105-1106. An ‘entitlement’ is protection through property, liability and inalienability rules, see Calabresi G and Melamed A, ‘Property rules, liability rules and inalienability’, 1089. 104 Calabresi G and Melamed A, ‘Property rules, liability rules and inalienability’, 1092-1093, 1105-1106 101

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To distinguish property rules from other rules, Calabresi and Melamed proffer a tri-pronged typology of entitlements: those protected by property rules, by liability rules and by inalienability rules. A property rule is a legal rule that protects a property right through the absolute right to exclude others, such as with an injunction.105 Under such a rule, a person who desires to take the entitlement from the owner must do so in a voluntary transaction in which the value of the entitlement is agreed upon by the seller and the buyer. State intervention is only limited to deciding whether there is an entitlement, but not its value.106 Under a liability rule, one’s proprietary entitlement can be violated by another, if the latter is willing to pay an objectively determined value for it.107 Liability rules involve a higher level of state intervention. A property owner has a right to collect damages from anyone who uses his/her property without permission. This may be the value the original holder of the entitlement is likely to have sold it for. However, the owner cannot demand more for the entitlement after the objectively determined value is set.108 Therefore, under a liability rule, not only is the entitlement protected, but its transfer or destruction is allowed subject to payment of a value determined by the state rather than the parties themselves.109 Let us say, John is renovating his house and, as a result of the renovations, dust moves from his compound to Mary’s. Mary contracts a breathing ailment and is admitted to hospital. Under liability rules, John may be required to get permission from NEMA and even pay fees to be allowed to continue with the renovations which are likely to harm Mary. Mary may also claim damages under tort from John for nuisance and the consequent harm suffered. Liability rules impose certain limits to the use of property. Whereas a property rule requires bargaining before others can use the property, a liability rule allows the other party to use the property and then pay damages. In addition, while property rules require voluntary exchanges, liability rules result in forced exchanges. This may lead to undervaluation of the property, as the valuation may not take into account certain personal and social values attached to the property.110 Proponents of liability rules, however, posit that they are necessary for three reasons. First, in the exercise of eminent domain powers, they ensure just and prompt compensation to private owners. Second, in dealing with the free rider 107 108 109 110 105 106

Butler, Drahozal and Shepherd, Economic analysis for lawyers, 19. Calabresi G and Melamed A, ‘Property rules, liability rules and inalienability’, 1092. Calabresi G and Melamed A, ‘Property rules, liability rules and inalienability’, 1092. Calabresi G and Melamed A, ‘Property rules, liability rules and inalienability’, 1092. Calabresi G and Melamed A, ‘Property rules, liability rules and inalienability’, 1092. See Butler, Drahozal and Shepherd, Economic analysis for lawyers.

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problem that may arise with open access resources where they may help in internalising externalities.111 Third, liability rules are helpful in dealing with tortuous wrongs and environmental pollution control. In tortuous cases and environmental pollution, if an incident arises, the wrongdoer and the victim may not be known to each other before the incident. In such cases, it is virtually impossible for the parties to bargain or negotiate with one another. A liability rule therefore allows the state to deal with the wrongdoer as it can harness the information he possesses. Calabresi and Melamed argue that an entitlement is inalienable to the extent that its transfer is not permitted between a willing buyer and a willing seller.112 The state determines the initial entitlement and the compensation that must be paid if the entitlement is destroyed or taken, but it also forbids its sale under certain circumstances. For example, if person A is entitled to the fruits of his labour and B injures him so as to reduce A’s earning capacity, B will be liable for damages. But A may not increase his earning capacity by selling himself into slavery, or sell his kidneys or blood. Also a citizen has a right to vote but may not sell that vote in the market. Likewise, one cannot bring down a national monument or acquire a public park so as to build a private home. The big question is whether a rule of inalienability has any incentives for creating wealth and whether there is any other purpose for inalienability rules apart from paternalism.113 Most entitlements to ‘things’ are mixed and as such one’s house may be protected by a property rule when another person wishes to purchase it, by a liability rule when the government decides to take it by eminent domain, and by a rule of inalienability in situations where the owner is drunk or incompetent.114 Inalienability rules are justified on a number of grounds. First, restriction on the sale of certain entitlements is justified on grounds of enforcement or because of problems of obtaining information on external costs, for example when selling land to polluters, or land close to airports or national parks. Selling body parts is prohibited as uninformed poverty-stricken citizens may end up being most of the sellers. Monetising body parts may also decrease the number of organs donated for humanitarian causes. In the African context, the sale of family or ancestral lands The free rider problem can arise when property rights are not clearly defined and imposed, for example in the case of common resources. In economics, the free rider problem leads to a situation where some individuals in a population either consume more than their fair share of a common resource, or pay less than their fair share of the cost of a common resource. An example is public services such as defence that benefit all citizens, but some fail to pay taxes and still benefit from national security measures. 112 Calabresi G and Melamed A, ‘Property rules, liability rules and inalienability’, 1092. 113 See Calabresi G and Melamed A, ‘Property rules, liability rules and inalienability’. 114 Calabresi G and Melamed A, ‘Property rules, liability rules and inalienability’, 1093. 111

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amongst other resources is not allowed as such lands belong to the whole family or community. Secondly, inalienable entitlements are justified based on self-paternalism and true paternalism. Under self-paternalism, society enacts a Bill of Rights in the Constitution so that citizens are prevented from yielding to monetary transactions that are harmful to one’s self. With true paternalism, restrictions are imposed on such social issues as reading and watching of pornography, smoking, drinking alcohol, drug abuse and other social evils. From the above assessment of the three rules, the issue that arises is whether all property rules can be converted to liability or inalienability rules. It is generally argued that it would be wrong to do so. Melamed and Calabresi note that a liability rule represents only an approximate value of the property to the owner, and so it would be very difficult to determine whether a thief, for example, values the object more than the owner. If this analogy is true of property, it is also true of bodily integrity. No one can value the cost of a rape or assault to the victim, and thus bodily integrity is an entitlement that should not be available for sale at all.

6.7 Conclusion Regulation of entitlements is key in ensuring that property plays its correct role in society. As discussed in this chapter, regulation takes different forms depending on the type of property and entitlements involved. The state remains a key player in regulating property rights and this, according to positivists, is based on the fact that property is a creature of the law and thus the state should primarily act as the regulator of property entitlements. Regulation also reinforces the fact that property rights are not absolute and there is a public interest to be achieved through regulation. From the discussion, it is also prudent to note that the state is not the only regulator of property. From an African perspective, there are unique common values, principles, traditions and religious beliefs that have been central in regulating access to, use and control of resources. The chapter also highlights the place of regulation in ensuring there is neither overuse of resources held in common (the tragedy of the commons) nor underuse of entitlements that are held privately by persons (the tragedy of the anti-commons). With the development of new forms of property and property rights, that are unique and complex, property regulation must keep in tandem with these developments.

Chapter Seven

LAND AS PROPERTY

7.0 Introduction As discussed in the previous chapters, the meaning attached to the term property is not limited to a ‘thing’ that can be owned, but rather extends to legal relationships that arise out of one being regarded an owner. Many conceive of property as a ‘thing’ rather than a legal relationship. But, as explained earlier, the subject of ownership can either be in a tangible or an intangible form. Land is a real form of property, considered as one of the most important forms of property. Many people are fascinated about acquiring land as it is the source of livelihoods and a basis for accumulating other forms of property. In Kenya, land has been at the centrepiece of the social, economic and political development of the country since the pre-colonial era1 depicting the diverse values it possesses. Its importance in the country’s development is now underscored in the Constitution of Kenya, 2010,2 and various government policies including the Vision 2030.3 In spite of its importance and many values, inequalities in land ownership and access to land continue to bedevil the country and have at times degenerated into violent conflicts threatening the social, economic and political fabric of the nation. In addition, land is a finite resource4 and most of the landmass in Kenya 3 1 2

Republic of Kenya, Sessional paper no. 3 of 2009 on national land policy, 2009, 17. See generally Chapter Five of the Constitution of Kenya. Republic of Kenya, Forest policy, 2014; Republic of Kenya, Sessional paper no. 3 of 2009 on national land policy; Republic of Kenya, National environment policy, 2013; Republic of Kenya, National water policy, 2002. Republic of Kenya, Report of the Commission of inquiry into the land law system of Kenya on principles of a national land policy framework constitutional position of land and new institutional framework for

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is not suitable for productive farming thus requiring the land available to be utilised sustainably, efficiently, equitably and productively. This chapter discusses land as a form of property, its importance, historical development and the principles informing land holding in Kenya. The chapter proceeds by examining how property rights in land arise. Subsequently, the significance of land as property is discussed. The chapter then traces the history of land holding in Kenya while highlighting trends in land governance in the pre-colonial, colonial and post-colonial epochs. Lastly, the chapter discusses the contemporary issues facing land as a form of property. A common feature running throughout the chapter is the impact of alien laws and tenure structures that led to a duality in land governance that, among other things, focused on vesting ownership rights on settlers while dispossessing Africans; developed settler cash economy while undermining subsistence farming by Africans; and created two sets of land regimes, one applying to settlers and other to natives. This duality in land policy dealt a severe blow to African land governance structures and occasioned massive landlessness amongst Africans that persists today. It is worth noting that this duality in land law and land tenure frameworks still manifests itself in Kenya today.

7.1 The concept of property in land Some property scholars are of the view that property rights arise after expropriation of the subject of ownership from the common resources and the exercise of some measure of control over that subject.5 For them property is a representation of the socially permissible powers granted to a person to sequester a certain portion of common resources as his/her property.6 Adherents of this school maintain that all property rights (including land rights) in a given society are a matter of convention in the sense that they are derived from the social context and the rules of justice adopted in that society.7 The law defines what land is in a given society. For instance, in Kenya the Constitution defines land to include “(a) the surface of the earth and the

5 6

land administration, 2002, 15. The size of Kenya is roughly 581,751 km2 with 97.8% consisting of land and 2.2% being covered with water. Forests and woodlands occupy 7% while wildlife protected areas occupy 10% of the land surface. See Grotius H, On the law of war and peace, 1ed Amsterdam, 1646. Gray R and Gray S, ‘The idea of property in land’ in Bight S and Dewar J (eds), Land law: Themes and perspectives, Oxford University Press, Oxford, 1998, 15-51. Lea D, Property rights, indigenous people and the developing world: Issues from aboriginal entitlement to intellectual ownership rights, Martinus Nijhoff Publishers, Leiden, 2008, 13-14.

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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; (d) and the air space above the surface.”8 It appears here that the aim is to define ‘land’ rather too broadly following the common law cuius est solum, eius est usque ad coelum et ad inferos principle (he who owns the ‘land’ owns everything reaching up to the very heavens and down to the depths of the earth). The aim is to capture ‘what Kenya owns or has effective control over’ rather than define ‘land’ stricto sensu. For example, including marine waters in the territorial sea and exclusive economic zone may not be in tandem with the law of the sea. Whereas Kenya owns the territorial sea, we own only the ‘living and nonliving natural resources’ of the exclusive economic zone,9 essentially fisheries, not the waters themselves - which is why freedom of navigation obtains in the exclusive economic zone but not necessarily in the territorial sea.10 According to the labour theory, an original owner of property is one who commingles his labour with a ‘thing’ thus establishing ownership over the ‘thing’.11 A major criticism of the labour theory is the extent to which one can claim ownership over a thing which they have mixed their labour with12 especially when we talk of land. It is for this very weakness of the labour theory that Robert Nozick questions whether a person who pours a can of tomato juice into the sea is the owner of the seas.13 Definitely, it cannot be the case that a labourer who works on his/her employer’s land acquires property rights in land merely by mixing labour with the soil. Property rights in land can also arise from occupation or possession, in most cases first possession. Here, possession means the physical and actual control that a person has over land. In establishing possession, one seeks to establish whether there is human interaction with a given piece of land,14 a legitimate claim which is incontrovertible. According to this theory, for property rights in land to arise from occupation, one must exhibit control over the property which is reinforced by a demonstrable state of mind that encapsulates the occupier’s own perception of the defensibility of their physical occupancy.15 It means, therefore, that in claiming

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12 13 14 15 10 11

Article 260, Constitution of Kenya (2010). Article 56(1)(a), United Nations Convention on the Law of the Sea, 1833 UNTS 3, 10 December 1982. Article 38(2), United Nations Convention on the Law of the Sea. Locke J, Second treatise of government, Hafner Publishing, New York, 1690. See other criticisms levelled against this theory in Chapter Two of this work. Nozick R, Anarchy, state and utopia, Basic Books, New York, 1974, 175. Otieno S, ‘Urban planning: To include or to exclude’ LL.B Thesis, University of Nairobi, 2015, 56. See Pierson v Post 3 Caines 175 (NY 1805) (Supreme Court of New York).

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ownership over land, one has to demonstrate some extent of sovereignty over it.16 Proponents of indigenous and local communities land rights use long possession over their lands and territories in asserting that property rights can be justified by contingent events.17 To them, property rights are historical entitlements that are general moral claims (natural rights) that are independent and distinct from the sovereign state and that bind the latter.18 Although it is quite evident that no single theory best explicates the origin of property rights in land, the incidences of ownership propounded by Honoré usually evidence the granting of certain rights to individuals over land.19 A person with rights over a given piece of land has certain duties, privileges, immunities and powers.20 The rights and related obligations that individuals, families and other groups of people have are embedded in certain sets of tenure rules and norms that are sanctioned by formal and informal institutions.21 These tenure rules will be discussed later in this chapter. At common law, the legal conception of land is expressed in the maxim cujus est solum, ejus est usque ad coelum et ad inferos. This maxim underscores the sacrosanct nature of property rights. By virtue of the cujus maxim, any conveyance of land includes all structures, fixtures, sewers, drains and water courses appertaining to the land.22 However, there are exceptions to the cujus principle, such as in the case of minerals, oil, gas, underground aquifers, etc23 which in most countries (including Kenya) are not owned by the owner of the soil but by the state. It is also worth noting that the technical meaning of land extends beyond the physical solum to everything attached to and the space above it. The common law maxim quidquid plantatur solo, solo cedit (whatever is permanently attached to the soil becomes part of it) explains this phenomenon.24 In determining the objects This concept of ‘sovereignty’ is elucidated by Coke CJ, when he famously observed in the Semayne’s Case [1604] 5 Co Rep 91 that ‘the house of everyone is to him as his castle and fortress’, denoting the concept of exclusion and sovereignty that one has over his land. 17 Lea, Property rights, indigenous people and the developing world, 13, 1. 18 Lea, Property rights, indigenous people and the developing world, 17. 19 The eleven incidences are: the right to possess; the right to use; the right to manage; the right to income; the right to capital; the right to security; the power of transmissibility; absence of term; the prohibition from harmful use; liability to execution; and residuary character. 20 For a fuller discussion on rights, powers, duties, privileges and immunities go to Chapter One. 21 United Nations Human Settlements Programme, Secure land rights for all, 2008. 22 Esmaeili H, ‘Boundaries of land, fixtures and ownership of minerals and resources: The search for certainty’ in Esmaeili H and Grigg B (eds), The boundaries of Australian property law, Cambridge University Press, Melbourne, 2016, 111. 23 Esmaeili, ‘Boundaries of land, fixtures and ownership of minerals and resources’, 111. 24 Oakley AJ, Meggary’s manual of the law of real property, 8ed, Sweet & Maxwell, London, 2002, 20. 16

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that will pass with land as fixtures, one looks at the degree of annexation of the object on the land and the purpose of annexation.25 The first test requires establishing whether there is some physical connection and whether an object is securely fixed.26 The second qualification requires one to show that the fixation is for the permanent and beneficial enjoyment of the land.27 In defining property, the 2010 Constitution recognises that permanent fixtures on or improvements to land are part of land.28 As discussed in Chapter Three, the African conception of property differs in major ways from the Eurocentric view, as land in the traditional African view does not necessarily include fixtures on land. Four basic categories of property rights systems in land are identifiable in many places; none (terra nullius or open access), communal property, private property, and state (or public) property.29 Open access implies that rights are left unassigned and hence no claim can be laid over the land by anyone. In this regard, there is an open-to-all policy that offers no incentives to anyone to conserve resources, thus occasioning rapid degradation. Degradation of the resource is inevitable because there is no incentive to conserve yet accruing benefits are enjoyed by all. Under the communal system, rights are granted to groups to enjoy in common. The groups may be persons of close family relations, cultural relations or persons having common interests. State ownership, on the other hand, reflects a situation where the sovereign holds property in trust for the citizens within the state. Under private ownership, exclusive property rights are granted to a person (natural individual or a jural entity like a company). It is assumed that with private property rights the owner is in a position to internalise externalities that come with ownership and hence use the property efficiently, productively and sustainably. When it comes to land holding, all the four regimes may coexist in a country, as is the case in Kenya30 as discussed in subsequent parts of this chapter.

Oakley, Meggary’s manual of the law of real property, 20. Oakley, Meggary’s manual of the law of real property, 21. 27 See holding in Shaw v Shah Devshi & Co [1936-37] 17 KLR; See also Sections 21 and 25, Land Act (Chapter 280, Laws of Kenya), and Section 108 of the repealed Indian Transfer of Property Act. Exceptions to the application of the quidquid plantatur solo, sola cedit maxim apply where, for example, the law allows a licensee or leasee, before the licence or lease expires, to remove at any time while he is in possession of all his fixtures. 28 Article 260, Constitution of Kenya (2010). 29 Feder G and Feeny D, ‘Land tenure and property rights: Theory and implications for development policy’, 5 The World Bank Economic Review, 1 (1991), 135. 30 Article 61, Constitution of Kenya (2010), provides for the various forms of land holding that are recognised in the country. 25 26

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7.2 Importance of land As a form of property, land plays an important role in the social-cultural, economic and political development of Kenya.31 Land fosters social stability and allows social relations to flourish. As explained earlier, property rights (including land rights) do not exist in a vacuum but within a social context.32 Property is shaped by and informs social ordering. French Jurist Leon Duguit argues that property is not a right but rather a social function33 with limits in terms of use and compliance with certain socially prescribed parameters. Articles 544 and 545 of the Civil Napoleonic Code, while recognising property as a right, affirm the social function of property thus: Property is the right of enjoying and disposing of things in the most absolute manner, provided they are not used in a way prohibited by the laws or statute. No one can be compelled to give up his property, except for the public good, and for a just and previous indemnity.34

The social function of property is considered a social obligation in that a property owner owes an affirmative obligation to the welfare of others.35 Land ownership imposes obligations on land owners while using their property not to interfere with their neighbours’ use and enjoyment of their property. Land owners also contribute to social development, for instance by paying taxes and rates to government for the provision of public goods. Chapter Four has highlighted the fact that land plays an important role in fostering the common good and has cultural and spiritual significance among communities. There are many examples world over of areas that are considered holy and which have been designated for worship activities.36 Land is necessary for the exercise of diverse cultural practices including pastoralism, oath taking, hunting and gathering, carrying out burial and circumcision rites. Most communities in Kenya

Republic of Kenya, Sessional paper no. 3 of 2009 on national land policy. See the discussions in Chapter One indicating that property is a web of relationships between the owner and others in society. 33 Duguit L, Law in the modern state, Laski F and Laski H (trans), RW Huebsch, New York, 1919, 148-149. 34 Articles 544-545, Napoleonic Code. See also generally Articles 40(3) and 66, Constitution of Kenya (2010), which are couched in a similar fashion. Article 66(1) provides that: ‘The State may regulate the use of any 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 use planning.’ 35 Foster S and Bonilla D, ‘The social function of property: A comparative law perspective’ 80 Fordham Law Review (2011), 107. 36 See discussions on Israel-Palestine conflicts over Jerusalem and other ‘occupied lands’. 31 32

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have areas regarded sacred and that are used for religious or worship purposes such as near sacred trees (such as the mugumo tree among the Agikuyu and the kaya shrines amongst the Mijikenda). Land ownership in traditional African society is transgenerational in that it is owned by the past, present and future generations suggesting that ancestors (spirits) are also owners. Access to land also elevates one’s social status. This aspect has roots in feudal England (where there was a class structure and the landed gentry were considered top in the social ladder). Today, in Kenya those in power are able to amass more land and to use land to remain in power. In turn, those with more land are able to easily accede to power due to the financial access that land affords. Land also plays important economic functions. Land is one of the factors of production. It provides the basis upon which numerous economic activities are practised including agriculture, fishing, settlement, tourism, transportation, pastoralism and the construction of infrastructure. It is especially important for the survival of rural and local communities who derive their livelihoods from land and land-based resources through subsistence farming, hunting and gathering and pastoralism. Land is one of the common assets that is used as collateral to obtain credit from financial institutions. Economists consider land an important economic asset, categorising it as natural capital.37 Land in Kenya has retained a focal point in the history of the country, the culture and politics in Kenya. Access to land as well as ownership, use and control therefore remain an emotive and politicised issue in contemporary Kenya.38 Land forms the basis upon which a state’s boundaries are defined.39 A defined territory is one of the important conditions for defining a state.40 The territorial limits of a state are defined in terms of the physical space that the state can lay claim to. In most cases, this is the land area of the state but may also include territorial waters for countries with a coast line like Kenya. It is precisely for this reason that Kenya defines its territory as consisting of the “territory and territorial waters comprising Kenya on the effective date, and any additional territory and territorial waters as Barbier E, ‘The role of natural resources in economic development’ 42 Australian Economic Papers, 2 (2003), 254. 38 Simiyu R, ‘Militianisation of resource conflict: The case of land-based conflict in the Mount Elgon region of western Kenya’ 52 Institute of Security Studies Monograph (2008), 4. 39 See the other political functions of property as discussed in Chapter Four of this book. 40 See Article 1, [Montevideo] Convention on Rights and Duties of States, 26 December 1933, 165 LNTS 19, which states that: ‘The state as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states.’ (Emphasis added). 37

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defined by an Act of Parliament.”41 Again, for most small island states, most of their territory is water and not physical space. State sovereignty, which is codified in Article 1 of the United Nations Charter, also represents the inviolability of the space which a state rightfully lays claim to. Historically, claims or conquests over territories have been used to augment the economic and political strength of nations. Colonialism in Africa, especially the establishment of white settlements, largely depended on expropriation of native lands. Concomitantly, the independence wars waged in most of Africa were premised on the need to take back land that had been expropriated by the colonialists.42 Land has also been the subject of the delineation of political jurisdictions, spheres and other administrative regions in a country. In Kenya, the division of the country into counties largely revolves around the land space that is to be administered by the various county governments.43

7.3 Land as a human rights issue Access to land is essential in ensuring that individuals lead a dignified life, can access resources and credit they need for their livelihoods, develop their capabilities and make choices necessary for the enjoyment of an adequate standard of living and other fundamental human rights.44 Access to land is regarded as a fundamental human right as it enables people access and realise other rights such as the right to life, food, housing, sanitation and water. In Olga Tellis v City of Bombay45 the Indian Supreme Court made a link between the constitutionally protected right to life and the unprotected right to livelihood and access to pavement space for the homeless in then Bombay. Similarly, the African Commission for Human and People’s Rights observed in Social and Economic Rights Action Center (SERAC) and Center

See Article 5, Constitution of Kenya (2010), which outlines the territory of Kenya thus: ‘Kenya consists of the territory and territorial waters comprising Kenya on the effective date, and any additional territory and territorial waters as defined by an Act of Parliament.’ 42 For example, the Mau Mau Movement was formed to agitate for the return of land that had been taken by the colonialists. See Clough MS, Mau Mau memoirs: History, memory and politics, Lynne Rienner Publishers, Boulder, 1998, 34. 43 See Article 6 (1) and the First Schedule, Constitution of Kenya (2010). Article 6(1) provides that the territory of Kenya is divided into the 47 counties specified in the First Schedule. 44 Food and Agriculture Organisation of the United Nations, Land and property rights, 2010, 40. 45 [1985] 2 Supp SCR 51. 41

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for Economic and Social Rights (CESR) v Nigeria,46 that the use of the security agencies to facilitate the use of the Ogoni people’s land by multinational corporations in a manner that polluted and degraded the environment to a level unacceptable for human habitation had led to the violation of the most fundamental of all human rights - right to life. Consequently, the Commission found the conduct of the Nigerian Government as constituting the violation of human rights including the right to life as provided under the African Charter on Human and Peoples’ Rights.47 Access to land is necessary for the realization of human rights. For example, agricultural productivity to meet food demands is largely predicated on the availability of land. With insecure or no land rights, food security then becomes a mirage especially amongst rural communities. In addition, the right to housing requires secure land rights otherwise people will be arbitrarily evicted from their dwellings due to contestation over land ownership. Access to water for domestic and productive uses is also heavily pegged on land ownership.48 Access to land also affords social security as one is guaranteed a constant source of income or collateral once they stop working.49 Various international legal instruments have thus provided for some form of the right to land. The Universal Declaration on Human Rights in Article 17 has provided for the right of persons either individually or jointly with others to own property. The International Covenant on Economic, Social and Cultural Rights (ICESCR), on the other hand, is silent on the right to own property. This silence is explained to originate from the antagonistic ideology of the Western and Eastern blocs as well as conflicting views of the global North and South.50 A universal view has, however, been adopted that every person can claim the right to property with the only differing view being the extent to which individuals can exercise their liberty to own property.51 The European Convention on Human Rights (ECHR) on the other hand has comprehensively provided for this right. Article 1 of the first ECHR ACmHPR Comm. 155/96. 27 June 1981, 1520 UNTS 217 48 See Kameri-Mbote P and Kariuki F, ‘Human rights, gender and water: Law, prospects and challenges’ in Hellum A, Kameri-Mbote P and van Koppen B (eds), Water is life: Women’s human rights in national and local water governance in southern and eastern Africa, Weaver Press, Harare, 2015, 81-117. 49 See Golay C and Cismas I, ‘Legal opinion: The right to property form a human rights perspective’ Rights & Democracy, Montreal (2010), 26. 50 Riedel E, Theorie der menschenreschsstandards, Duncker & Humbolt, Berlin, 1986, 39. Riedel, however, clarifies that non-inclusion of the right to property in International Covenant on Economic, Social and Cultural Rights, 16 December 1966, 993 UNTS 3 and International Covenant on Civil and Political Rights, 16 December 1966, 999 UNTS 171, can by no means be equated with the denial of the right. 51 Golay and Cismas, ‘Legal opinion’, 4. 46 47

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Protocol states that every natural or legal person is entitled to the peaceful enjoyment of his possessions and that no one is to be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.52 In Kenya, the Constitution enshrines the right to property in Article 40.53 All persons without discrimination including women, youth and the marginalised communities have the right to own land.54

7.4 History of land holding in Kenya: Pre-colonial, colonial and postcolonial antecedents

(a) Pre-colonial period Chapter Three discussed the nature of property relations that prevailed in traditional African communities before the coming of Europeans. Landholding amongst most African societies was communal.55 Under communal forms of ownership there existed structures allowing individuals access to land based on membership and performance of reciprocal obligations in a given community. Land ownership and use was also governed by the respective customary laws of the various ethnic communities.56 Land was held as a transgenerational asset, managed at different levels of social organisation and used in function-specific ways by the communities and groups.57 All in all, the allodial title to land belonged to the community in general.58

(b)

Colonial period

With colonisation, western notions of property were introduced in Kenya leading to the expropriation, subversion and destruction of African property sys-

See also Article 14, African Charter on Human and Peoples’ Rights, 27 June 1981, 1520 UNTS 217. Article 40 (1) subject to Article 65, Constitution of Kenya (2010), every person has the right either individually or in association with others, to acquire and own property (a) of any description and (b) in any part of Kenya. 54 Articles 27 and 40, Constitution of Kenya (2010). 55 Okoth-Ogendo H, ‘The tragic African commons: A century of expropriation, suppression and subversion’ 1 University of Nairobi Law Journal (2003). 56 Okoth-Ogendo, ‘The tragic African commons’, 5. 57 Okoth-Ogendo, ‘The tragic African commons’, 3. 58 See Okoth-Ogendo H, Teaching manuals on the law of property (83/84 1982). 52 53

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tems.59 Colonialism had an impact on African landholding in three main ways: land alienation from Africans, imposition of English property law and transformation of customary land law and tenure.60 Alienation of African land started with the Arabs who practised the slave trade in the territory, well before the coming of the British settlers. This is supported by the subsequent agreements signed between the British and the Sultan of Zanzibar over the ten (10) mile coastal strip.61 To justify British occupation of Kenya, it was necessary for the colonial government to assert original title over the land. It is for this reason that Commissioner Hardinge noted that Africans did not have title to the land and were only concerned with occupational rights over land.62 Initially, it was thought that the declaration of a protectorate status over Kenya would confer title over land to the colonialists.63 It was, however, realised that the protectorate status did not confer title over land in the protectorate.64 Such views were held by people like Maurice PK Sorrenson who advised that the declaration of a protectorate status over Kenya did not confer title to the British Colonial Government.65 The colonial administration therefore sought to use law to justify their acquisition of territory in Kenya. In 1897, the Indian Land Acquisition Act was extended to cover the interior of Kenya. Commissioner Hardinge seized this opportunity to acquire land in the territory by issuing a proclamation appropriating ‘…for the public purpose, subject to any rights of ownership which may be proved to his satisfaction, all lands on the mainland beyond Mombasa situated within one mile on either side of the line of the Uganda railway wherever finally constructed.’66 Protectorate authorities ensured that what constituted Crown Land was clearly de Okoth-Ogendo, ‘The tragic African commons’. Wanjala S, ‘Land ownership and use in Kenya: Past, present and future’ in Wanjala S (ed), Essays on land law: The reform debate in Kenya, University of Nairobi, Nairobi, 2000, 27. 61 Republic of Kenya, The final report of the truth, justice & reconciliation Commission of Kenya, vol IIB, 3 May 2013 Version, 165. 62 See F.O. 107 53, Hardinge to Salisbury, 11 June 1896, quoted in Okoth-Ogendo HWO, Tenants of the Crown: Evolution of agrarian law and institutions in Kenya, African Centre for Technology Studies Press, Nairobi, 1991, 11. 63 Wanjala, ‘Land ownership and use in Kenya’, 27. 64 Mweseli T, ‘The centrality of land in Kenya: Historical background and legal perspective’ in Wanjala (ed), Essays on land law, 5. 65 See Colonial Office to Foreign Office, Foreign Office Confidential Print 6861, 4 September 1896, 212. The advice by Sorrenson was as follows: ‘As regard Land Regulations, the Secretary of State’s view is that the acquisition of partial sovereignty in a Protectorate does not carry with it any title to soil. The land is foreign and does not become vested in Her Majesty…it is therefore advisable to avoid making grants or leases or other dispositions purporting to be alienation of land by the British authorities, to whom it does not in fact belong…’ 66 Proclamation No. 6 of 9 May 1897. 59 60

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fined for purposes of acquisition and use by the settlers vide the 1901 East African Order-in-Council which defined Crown Land as: All public lands within the East African Protectorate which for the time being are subject to control of His Majesty by virtue of any Treaty, Convention or Agreement, or His Majesty’s Protectorate, and all lands which have been or may hereafter be acquired by His Majesty under the Lands Acquisition Act, 1894, or otherwise howsoever.67

Under the 1901 Ordinance, the Crown was vested with rights over land that the British had acquired from the Sultan through the agreements of 188868 and 1895.69 However, challenges arose since part of the lands defined here had already been occupied by indigenous communities and Arabs with both groups laying claim to the land.70 This question was finally settled with the enactment of the Land Titles Ordinance in 1908 whose application was limited to the coastal strip. The Ordinance required persons laying claim to land within the ten-mile coastal strip to lodge their claims within six months to a Land Registration Court where a successful applicant would be granted a certificate as conclusive proof of ownership of the land by the person.71 According to the report of a Parliamentary Select Committee, a majority of natives made no claims as required by the Ordinance for a number of reasons.72 First, the inhabitants of the ten-mile coastal strip had no knowledge of the existence of the Ordinance and even if they did, had no understanding of the provisions of the Ordinance. Second, the Ordinance had no relevance in the African context as it introduced the concept of private ownership which was alien to Africans. Third, the colonial government was primarily biased against Africans and could not be trusted with making laws that were friendly to Africans. Fourth, the investigations to ascertain claims by Africans were made by Mazrui Arabs who had been incorporated within the colonial administrative structures and thus acted in the interest of the colonial administration. Fifth, the time prescribed for Africans to lodge claims Quoted in Sorrenson MPK, Origins of European settlements in Kenya, Oxford University Press, Nairobi, 1968, 53. 68 The 1888 agreement ceded to the Imperial British East Africa Company rights in land except the ‘private land’ allotted by the Sultan. 69 The 1895 agreement gave the British control over all the land the Sultan had ceded to them pursuant to the 1888 agreement. 70 See Republic of Kenya, The final report of the truth, justice & reconciliation Commission of Kenya, vol IIB, 3 May 2013 Version, 172. 71 Republic of Kenya, Report of the Select Committee on the issue of land ownership along the ten-mile coastal strip of Kenya, 1978, 2. 72 See Republic of Kenya, Report of the Select Committee on the issue of land ownership along the tenmile coastal strip of Kenya, 3. 67

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was too limited. Lastly, the Ordinance introduced foreign conceptions of land such as the doctrine of fixtures which were alien to Africans and which they could not relate to.73 The application of this Ordinance inevitably had the effect of dispossessing many Africans who did not lay claim to the land as required by the Ordinance. Grievances by Africans were, therefore, commonplace as a majority of Africans were rendered squatters on land that they had historic claims to. Current land problems at the Kenyan coast are traceable to the introduction of this Ordinance. Total dispossession of the native communities occurred in 1915 upon the enactment of the Crown Land Ordinance whose effect was to vest all land in the territory in the Crown, leaving natives as mere tenants at the will of the Crown. The full effect of the 1915 Ordinance is well captured in the judgment of Barth CJ in the case of Isaka Wainaina v Murito where the plaintiffs had claimed ownership of a parcel of land on the basis that they had purchased it from the Ndorobo community before the European settlement.74 Barth CJ, explaining the full import of the 1915 law, state thus, In my view the effect of the Crown Lands Ordinance, 1915 and the Kenya (Annexation) Order-in-Council, 1920 by which no native private rights were reserved, and the Kenya Colony Order-in-Council, 1921…is clearly inter alia to vest land reserved for the use of a native tribe in the Crown. If that be so then all native rights in such reserved land, whatever they were…disappeared and natives in occupation of such Crown land become tenants at the will of the Crown…

Once the colonialists had established dominion over the country, measures were taken to pave way for the establishment of colonial settlement. One of the mechanisms that facilitated this was the establishment of reserves.75 The establishment of reserves was facilitated by the Crown Lands Ordinance of 1915 and the holding in the Isaka Wainaina case. With the reserves, boundaries were fixed delimiting the extent of land that natives could occupy. It has been argued that this was one of the earliest initiatives by the Colonial Government to protect claims by Africans as the establishment of the reserves ensured that title held by natives was indefeasibly secured.76 Notwithstanding this, various steps were undertaken by the Colonial Government which included intrusion into the reserves and violating native land rights, hence defeating the protection that had earlier been accorded to Republic of Kenya, Report of the Select Committee on the issue of land ownership along the ten-mile coastal strip of Kenya, 3. 74 [1923] 9 (2) KLR 102. 75 Okoth-Ogendo, Tenants of the Crown, 53. 76 Okoth-Ogendo, Tenants of the Crown, 56. 73

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reserves. This was especially seen in the debates in the Legislative Council. The recommendation by Conway Harvey was especially notable where he stated that, I think no one can be found to quarrel with the principle, that if some land at present in native ownership is not required by natives for their use, it is only fair, just, reasonable and quite proper on numerous grounds that that land should be leased to non-natives or others who are willing to work it entirely in the interests of the native owners themselves.77

The onslaught on native reserves resulted in numerous challenges and what followed was the introduction of administrative institutions which were tasked with the management of the reserves. The Kenya Land Commission (Carter Commission) was appointed in 1930 to look into several issues including a review of the proper tenure type within the native reserves.78 The Carter Commission came up with a list of recommendations that sought to reform the property regime within the native areas including the clear determination of the extent of claim by natives.79 One recommendation was that ‘the tenure of each reserve should be built on the basis of the native custom obtaining therein, but that it should be progressively guided in the direction of private tenure, proceeding through the group and the family towards individual holding.’80 By this, it is clear that the main aim of the reforms proposed by the Commission was to ensure that, eventually, Africans were brought under the realm of individual ownership of land. At this point, communal ownership had been condemned to a slow death. The Native Lands Trust Ordinance81 and an amendment to the Crown Lands Ordinance 1915, were some of the legislative enactments that were used to implement the recommendations of the Carter Commission. Under the Native Lands Trust Ordinance, all areas that were formerly known as ‘native reserves’ were redesignated as ‘native lands’ and were removed from the purview of the Crown Lands Ordinance, 1915.82 Native Lands Trust Boards were established and tasked with the management of native lands. Subsequently, challenges were still witnessed within the native reserves such as overcrowding, soil erosion, pests and diseases and landlessness as populations grew and with a concomitant increased demand for land for agricultural purposes.

In Leg. Co. Debates vol. I, 1928, 2nd Reading, 321-22 quoted in Okoth-Ogendo, Tenants of the Crown, 56. 78 See Cmd. 4556, 1934. 79 Okoth-Ogendo, Tenants of the Crown, 60. 80 Carter M, Report of the Kenya Land Commission, 1934, 420. 81 See Ordinance No. 28/1938 repealing the 1930 Ordinance. 82 Native Land Trust Ordinance (No. 28 of 1938). 77

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RJM Swynnerton, an official from the colonial Department of Agriculture, made several recommendations which mainly hinged on the need to establish foreign property laws within the colony. The model proposed by Swynnerton largely focused on the individualisation of title to land.83 Reforms were thus initiated under what is commonly known as the Swynnerton Plan which stated that: Sound agricultural development is dependent upon a system of land tenure which will make available to the African farmer a unit of land and a system of farming whose production will support his family… He must be provided with such security of tenure through an indefeasible title as this will encourage him to invest his labour and profits into the development of his farm and will enable him to offer it as security against such financial credits as he may wish to secure…84

The Swynnerton reforms were informed by the fact that the native reserves were unproductive and there was massive landlessness among Africans leading to the emergence of squatter settlements.85 The East African Royal Commission (1953-1955), which was constituted to examine ways of improving the welfare of the African peasants, in their Report in 1955 extolled the merits of individual tenure noting that: ‘…individual tenure has great advantages in giving to the individual a sense of security in possession and in enabling by purchase and sale of land, an adjustment to be made by the community from the present unsatisfactory fragmented usage to units of economic size. The ability of individuals to buy and sell land by a process of custom, opens the door to that mobility and private initiative on which a great sector of economic progress tends to depend. The urban wage-earner can sell his homeland plot which is so often the uneconomic one, confident in the knowledge that he can buy another when occasion demands. The specialist farmer is relieved of the liability of providing a place for the subsistence of his clan relations. Moreover individual tenure should lead to release and encouragement of new genius and to new experiment in finding the most productive use of land.’86

What followed these reforms was a series of initiatives driven at bringing as much land in the country as possible under the realm of individual ownership. For example, some of the policy recommendations by the East Africa Royal Commis See Ghai YP and Mc Ghai Y and McAuslan J, Public law and political change in Kenya: A study of the legal framework of government from colonial times to the present, Oxford University Press, Nairobi, 1970, 80. 84 Swynnerton R, The Swynnerton report: A plan to intensify the development of African agriculture in Kenya, 1955. 85 The Swynnerton Plan appeared as a government report in 1954 and its proposals were accepted in full by the East African Royal Commission. 86 Government of the United Kingdom, Report of the East African Royal Commission, 1955, 323. The 83

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sion included: the enactment of laws to govern private property, establishment of modalities to facilitate transactions in land, and the establishment of safeguards to facilitate registration of interests that had been conferred on individual owners.87 In order to determine the interests held by each person, the Commission proposed adjudication and registration mechanisms with powers being vested in the government to dispose of all residual interests in land which had been subjected to the process of adjudication and registration.88 The laws and policies adopted by the colonial government fostered exclusion especially against African communities and in many cases led to their displacement. This was especially the case in the former “white highlands” and the Kenyan coast. In these areas, the socio-cultural and economic life of many Kenyans was disrupted exposing families and succeeding generations to landlessness.89 These are challenges that were inherited by the independence government and what followed were legal and policy prescriptions by the independence government that were meant to reverse the colonial exclusionary trends.

(c)

Post-colonial antecedents

The above developments point at attempts by the colonial government to introduce western property models and disrupt African property relations. Also, the introduction of the money economy drove a majority of Africans into European farms where they worked for meagre pay and settled on the farms where they worked. The discontent amongst Africans forced the colonial government to introduce reforms in the native reserves but these were not enough. Agitations by Africans for return of their land thus formed a basis for the struggle for independence as demonstrated by the rise of various independent movements like the Mau Mau. A major problem that therefore faced the independence government was the manner in which the landless were to be resettled. The government had the option of either retaining the policies adopted by the colonial government or adopting new policies altogether. The independence government chose the former.90 This choice had a fundamental effect on customary land and land tenure as it continued the colonial policy of subjugating and undermining customary landholding systems and structures. Government of the United Kingdom, Report of the East African Royal Commission, 350. Government of the United Kingdom, Report of the East African Royal Commission, 351. 89 Republic of Kenya, The final report of the truth, justice & reconciliation Commission of Kenya, vol IIB, 3 May 2013 Version, 197. 90 See Wanjala, ‘Land ownership and use in Kenya’, 31. 87 88

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The independence government followed the system of adjudication, consolidation and registration in the vesting of land rights. It was subsequently realised that there was need for adoption of a system where the holding of land by groups was permissible. This saw the adoption of the Land (Group Representatives) Act in 196791 which aimed at ensuring that pastoral groups were taken into account in the granting of land rights. However, the independence government still focused on individualisation of tenure through registration which not only led to the destruction of communal land but also resulted in unmitigated landlessness.92 The individualisation process was also exploited by the elite who used this as an opportunity to amass large tracts of land at the expense of many in the country. Large disparities in land ownership have, therefore, been witnessed in the country and have been the source of conflicts. Relatedly, corrupt practices in the ministries with authority over land allocations such as Ministry of Lands, the erstwhile Ministry of Local Government and various state corporations and political influences in land governance have brought serious inequities in land distribution in Kenya with the rich and politically connected individuals being able to liaise with land officials to facilitate illegal and irregular land deals.93 A close linkage is also evident between land injustices and ethnic violence in Kenya.94 Land-related ethnic violence has particularly been witnessed at the Kenyan coast and in many parts of the former Rift Valley province during electoral times. Original inhabitants of these areas have resorted to violence against communities who settled in their lands as a means of self-help to vent their fomented anger over land inequalities.95 The introduction of multi-party politics in the early 1990s also saw the eruption of numerous conflicts that also had some association with the land grievances. The Moi government failed to address the land problems. The constitutional review process, among others, sought to bring reforms in the land governance sec 93 94

Chapter 287, Laws of Kenya, now repealed by Community Land Act (Act No. 27 of 2016). Wanjala, ‘Land ownership and use in Kenya’, 35. Republic of Kenya, Sessional paper no. 3 of 2009 on national land policy, paras, 147 and 164. Republic of Kenya, The final report of the truth, justice & reconciliation Commission of Kenya, vol IIB, 3 May 2013 Version. The TJRC noted that land-related injustices take the forms of: illegal alienation and acquisition of acquisition of individual and community land by public and private entities, illegal alienation of public land and trust lands, preferential treatment of members of specific ethnic groups in settlement schemes at the expense of the most deserving landless, forceful settlement of members of a community outside their homelands, forceful evictions and the phenomenon of land grabbing, especially by Government officials. 95 Republic of Kenya, The final report of the truth, justice & reconciliation Commission of Kenya, vol IIB, 3 May 2013 Version, 305. 91 92

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tor by seeking to alleviate the injustices and social tensions, but as it was incomplete by 2007, the already continuing process of social exclusion and community grievances manifesting in electoral violence, continued unabated. 96 The land issue featured prominently in the constitutional review process after the 2007 - 2008 post-election violence. Historical injustices related to land featured as an Agenda 4 item by the Kenya National Dialogue and Reconciliation. Land was identified as a source of economic, social, political and environmental problems in the country. Reform of constitutional and statutory land legislations was proposed to address the challenges that had been faced in the land sector.97 And as such the 2010 Constitution sought to address these challenges by reforming the land governance and administration system in the country. The constitutionally stipulated land law reform has been done with the enactment of the Land Act,98 Land Registration Act,99 and the National Land Commission Act,100 thus repealing the plethora of land laws obtaining under the old constitutional order.101 The Constitution further formally recognised community land rights and mandated Parliament to enact legislation to guide the management of community land.102 It is, however, worth noting that the community land law was passed by the National Assembly one year after the constitutional deadline of 27 August 2015 depicting legislative neglect in protecting community land. The Community Land Act103 that was assented to by the President on 31 August 2016 is discussed in subsequent chapters of this book. All these challenges have resulted in what is commonly referred to as the land question in Kenya.

7.5 The land question To appreciate the land question in Kenya, it is vital to note that Kenya was a settled rather than a protectorate colony. In settler colonies, the colonialists estab Republic of Kenya, The final report of the truth, justice & reconciliation Commission of Kenya, vol IIB, 3 May 2013 Version, 310. 97 See Kenya National Dialogue and Reconciliation, Agenda 4 Reforms, 2008. 98 Chapter 280, Laws of Kenya. 99 Chapter 300, Laws of Kenya. 100 Chapter 5D, Laws of Kenya. 101 These laws included Registered Land Act (Chapter 300, Laws of Kenya), Registration of Titles Act (Chapter 281, Law of Kenya), Government Land Act (Chapter 280, Laws of Kenya), Land Titles Act (Chapter 282, Laws of Kenya) and Indian Transfer of Property Act (1882). 102 Article 63, Constitution of Kenya (2010), provides for Community Land. 103 Act No. 27 of 2016. 96

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lished settlements within the territories occupied making the acquisition of land from natives very necessary to facilitate their economic, social, political and strategic enterprises. Such countries include Angola, Algeria, Kenya, Mozambique, Namibia, South Africa, and Zimbabwe. In settler colonies, there were armed struggles aimed at wrestling control of land from the colonial masters, an example being the Mau Mau movement in Kenya. This is replicated with the armed struggle by the African National Congress (ANC) in South Africa, Mozambique Liberation Front (FRELIMO)104 and Zimbabwe African Union (ZANU), founded on 8 August 1963 as a militant organization that fought against the white minority government in Rhodesia. In protectorate colonies, the colonial masters did not establish settlements within the colonised territory, for example in Ghana, Nigeria and Uganda. In protectorate colonies there was no armed struggle. The land question is invariably more important and pronounced in settler colonies than in protectorate colonies. Because of the important role of land, numerous challenges emerge in relation to its ownership, management and use, which water down the envisioned principles of land-holding in the National Land Policy.105 Such challenges have origins in geopolitical, economic, social and demographic factors.106 Reforms undertaken in most of Africa show some similarities due to the similar colonial history the countries went through.107 In tracing the origins of the land question(s) in Kenya, the National Land Policy identifies three aspects: political, economic and legal.108 The political aspect manifests itself in the continuity, or, at the very least, modification of the policies adopted by the independence government from the colonial government against the expectation of many Kenyans who had hoped for the introduction of new policies. This was deemed necessary by the independent government for the protection of the property of the settlers who chose to remain in the country and to ensure that those who left the country did not lose their property without being compensated.109

In Portuguese this is Frente de Libertação de Moçambique, a dominant political party founded in 1962 as a liberation movement. 105 See Republic of Kenya, Sessional paper no. 3 of 2009 on national land policy, para 7. 106 Africa Union, African Development Bank and United Nations Economic Commission for Africa, Framework and guidelines on land policy in Africa, land policy in Africa: A framework to strengthen land rights, enhance productivity and secure livelihoods, 2010. 107 Africa Union, African Development Bank and United Nations Economic Commission for Africa, Framework and guidelines on land policy in Africa, land policy in Africa, 6. 108 Republic of Kenya, Sessional paper no. 3 of 2009 on national land policy. 109 See Republic of Kenya, The final report of the truth, justice & reconciliation Commission of Kenya, vol IIB, 3 May 2013 Version, 199. 104

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The main objective of the colonial settlers was to ensure the entrenchment of a dominant settler economy while subjugating the African economy through the imposition of unfriendly legal and administrative mechanisms.110 This succeeded in disorienting the African economy and property holding systems. The State continued being the principal player in the regulation of property relations in the country. The restructuring of the existing relations of production made land the centre of production, creating sharp social, economic and political inequalities in the country’s social formation.111 Inequalities were evident from the disparities in land holding and the exploitative arrangements that were introduced by the colonial government.112 These inequalities in land ownership and access to land led to landlessness and increased poverty in most communities, and have been exploited by politicians during general elections to stir ethnic tensions and violence. Under the legal aspect, the colonial government introduced numerous laws that operated alongside the African customary land tenure system. The duality in the legal regime resulted in confusion and, in the end, customary property relations suffered major blows as they were considered inferior to the statutory land tenure systems. Duality in land law was inevitable once it was accepted that the protectorate of Kenya was to be a settled colony. A distinguishing characteristic of the colonial administration in the field of land use and other fields was its parallel systems of highly bureaucratised laws and institutions.113 The National Land Policy documents that the net effect of these land tenure frameworks was to perpetuate a dual system of economic relationships consisting of an export enclave controlled by a small number of European settlers and a subsistence periphery operated by a large number of African peasantry. The duality was manifest in: (a) systems of land tenure based on principles of English property law, on the one hand, and a largely neglected regime of customary property law on the other; (b) a structure of land distribution characterised by large holdings of high potential land, on the one hand, and highly degraded and fragmented small holdings on the other; (c) an autonomous and producer controlled legal and administrative structure for the management of the European sector, as opposed to a coercive and government controlled structure for the African areas; and (d) a policy environment designed to facilitate Republic of Kenya, The final report of the truth, justice & reconciliation Commission of Kenya, vol IIB, 3 May 2013 Version, 19. 111 See Kanyinga K ‘Beyond the colonial legacy: The land question, politics and constitutionalism in Kenya’ in Wanjala (ed), Essays on land law, 45. 112 Mweseli, ‘The centrality of land in Kenya’, 15. 113 Okoth-Ogendo, Tenants of the Crown. 110

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the development of the European sector of the economy by under-developing its African counterpart.114 Certain demographic forces such as population growth and migration have also resulted in challenges in the land sector. Population growth has resulted in overstretching land and land based resources beyond their carrying capacity occasioning negative effects such as soil erosion, degradation and reduction in agricultural production. Migration, especially to urban areas, has resulted in overcrowding inevitably leading to the mushrooming of many informal settlements by persons seeking to meet their housing needs. Due to reactionary measures and lack of a comprehensive resolution of the land question, this problem continues to manifest itself in different forms115 in Kenya. Contemporary manifestations of the land question in Kenya are discussed below.

a) Dispossessions Before the advent of colonialism, communities in Kenya occupied land in various parts of the country. Land was also available for occupation and cultivation for all members of the community, with structures being put in place to ensure equitable access and sustainability in use.116 A main characteristic of most communities was their nomadic nature since land was available in plenty and the population was also relatively low. The arrival of the Arabs at the Kenyan coast disrupted this situation, however.117 The Arabs forcefully acquired land that was held communally and used by the communities at the Kenyan coast. The practice of slave trade by the Arabs made many native Africans flee their homelands for fear of being captured and sold as slaves, allowing the Arabs to occupy the lands previously held by them.118 These acts are the earliest instances of dispossession of African land.

Republic of Kenya, Sessional paper no. 3 of 2009 on national land policy, para 23. According to Sessional paper no. 3 of 2009 on national land policy, this question has manifested itself in the form of rapid population growth and the breakdown of land administration mechanisms, rapid urbanization and general disregard for land use planning, disparities in land ownership, deterioration of productivity and degradation of the environment. See Republic of Kenya, Sessional paper no. 3 of 2009 on national land policy, para 24. 116 Okoth-Ogendo, ‘The tragic African commons’, 108. 117 Republic of Kenya, The final report of the truth, justice & reconciliation Commission of Kenya, vol IIB, 3 May 2013 Version, 169. 118 Republic of Kenya, The final report of the truth, justice & reconciliation Commission of Kenya, vol IIB, 3 May 2013 Version, 169. 114 115

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The arrival of the European settlers saw the prevalence of these acts. The cradle of these can be seen in 1888 when the Imperial British East African Company (IBEACo) signed an agreement with the Sultan of Zanzibar granting all land rights in the dominion (except those held by the Sultanate) to the company.119 The agreement in effect terminated the land rights of the communities inhabiting the coastal strip and formed the basis of acquisition of land by the British. The consequence was that the communities inhabiting these areas were rendered landless. The colonial government further enacted the Land Titles Ordinance of 1908 which required persons claiming title to land in the ten mile coastal strip to lodge their claims for the same. It has been argued that this Ordinance did not do much to ensure that the Africans got back their land since this was not plausible for a majority of Africans who were unaware of the existence of the Ordinance.120 Africans therefore suffered dispossession from the colonial power and the Mazrui Arabs leaving the indigenous communities, including the Mijikenda, Pokomo and Taita, landless and squatters on their farms.121 Dispossession of communities also happened on the mainland. This was particularly so among the Maasai community through the 1904 and 1911 agreements signed with the colonial government. Through these agreements, the Maasai, allegedly out of their free will, agreed to move to the reserves to pave way for European settlement on their lands.122 This was the genesis of the numerous problems that have been faced by the Maasai as they were pushed to unproductive and diseaseriddled reserves. The Maasai lost a lot of cattle out of this and also reduced in population.123 The Sabaot are another group which has been faced with dispossession is traceable to the colonial period. The history of this dispossession can be traced to 1913 when the British settlers ordered them to move out of Trans Nzoia to pave way for white settlements.124 Subsequently, the community was forcefully evicted from their homes in Trans Nzoia. The independence government failed to fulfil the promise of resettling Africans who had been evicted from their lands and members

Okoth-Ogendo, Tenants of the Crown, 9. Republic of Kenya, The final report of the truth, justice & reconciliation Commission of Kenya, vol IIB, 3 May 2013 Version, 173. 121 Republic of Kenya, The final report of the truth, justice & reconciliation Commission of Kenya, vol IIB, 3 May 2013 Version, 174. 122 Okoth-Ogendo, Tenants of the Crown, 30. 123 See Ole Njogo and others v AG of the East African Protectorate (1914) 5 EALR 70. 124 See Gazette Notice No. 418 of 11 June 1932. 119

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of the regime furthered the dispossession that had been occasioned on this community.125 The failure by successive governments to redress the grievances of this community resulted in the adoption of self-help mechanisms by the community, a notable one being the Sabaot Land Defence Force (SLDF), a vigilante group which has engaged in violent practices due to the underlying grievances related to land ownership.126 The case of dispossession has also been witnessed by women in the country. This is attributable to the fact that in many communities in Kenya, customary and religious laws that are patriarchal govern most social relations including land relations. Under customary and religious laws land is held by the man who is head of the family or the eldest son in trust for the rest of the family. And in succession, most communities allow only the male children to inherit from their deceased parent’s estate. Land is also held on a communal basis with members having access rights to the land only.127 Thus, women are prevented from ownership since they were not considered part of the communities. This has brought about great disparities in property ownership between men and women notwithstanding the fact that women contribute more towards the development of the land.

Disparities in landholding

Another problem that has bedevilled the land regime in the country relates to disparities witnessed in land ownership. Large tracts of land are in the hands of a few individuals leaving a majority landless. This has colonial roots and it is a result of the policy adopted by colonial settlers and the government where a large number of Africans were moved to the reserves which were largely unproductive while the colonial settlers settled on large tracts of productive land where they practised commercial agriculture. This problem persisted in independent Kenya with the main perpetrators being the successive presidents who rewarded their friends with large parcels of land.128 One of the biggest beneficiaries of this was President Jomo Kenyatta who acquired large farms in central and coastal regions and the Moi family which subsequently acquired vast farms in Nakuru, Njoro and Rongai areas Republic of Kenya, The final report of the truth, justice & reconciliation Commission of Kenya, vol IIB, 3 May 2013 Version, 192. 126 Republic of Kenya, The final report of the truth, justice & reconciliation Commission of Kenya, vol IIB, 3 May 2013 Version, 190. 127 Okoth-Ogendo, ‘The tragic African commons’, 108. 128 Republic of Kenya, The final report of the truth, justice & reconciliation Commission of Kenya, vol IIB, 3 May 2013 Version, 225. 125

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in the Rift Valley.129 At independence, elite Kenyans are also said to have been able to secure adjudication of land in their favour to the detriment of their relatives.130 Disparities in landholding are also evident from the fact that there are numerous squatters and millions of landless people while a few individuals in the country continue to hold vast pieces of land.131 Disparities in landholding have contributed to violence in many parts of the country including the electoral violence witnessed in the 1992, 1997 and 2007 General Elections cycles. Disparities in land distribution are also rife between men and women. In most households where men are the heads, control of land and other family properties is usually in the hands of the male family members.132 Despite the equal protection safeguards adopted by the law which seeks to guarantee equitable ownership of land, women are still marginalised or even excluded from owning land leaving this vital resource in the hands of men in many parts of Kenya.133

Overemphasis on land as a form of property

The centrality of land in Kenya is evident from the historical and legal background of the country. Good fertile lands for agriculture created a demand and basis for settler occupation in Kenya. Before this, inter-tribal conflicts largely revolved around land with conquests being commonplace.134 Earlier in Europe, the industrial revolution, rising population and diminishing raw materials had led to an increased search and demand for new sources of raw materials.135 This therefore necessitated the acquisition of territory outside Europe.

Republic of Kenya, The final report of the truth, justice & reconciliation Commission of Kenya, vol IIB, 3 May 2013 Version, 225. 130 Kibwana K, ‘Efficacy of State intervention in curbing the ills of individualization of land ownership in Kenya’ in Wanjala (ed) Essays on land law, 179. 131 Republic of Kenya, The final report of the truth, justice & reconciliation Commission of Kenya, vol IIB, 3 May 2013 Version, 326. It is also worth noting that the number of squatters and landless people has continued to increase with tribal and ethnic clashes such as those of 1992, 1997 and 2007/2008 general elections, and a subsequent internal displacement of persons. 132 Raney T, Anríquez G, Croppenstedt A, Gerosa S, Lowder S, Matuschke I and Skoet J, ‘Gender differences in assets’ 11-12 ESA Working Paper (2011), 3. 133 Kameri-Mbote P, ‘Fallacies of equality and inequality: Multiple exclusions in law and legal discourses’ Inaugural Lecture, University of Nairobi, 24 January 2013, 21. 134 Nyukuri B, ‘The impact of past and potential ethnic conflicts on Kenyan’ stability and development’ USAID Conference on Conflict resolution in the Greater Horn of Africa, Nairobi, June 1997, 8. 135 Mweseli, ‘The centrality of land in Kenya’, 4. 129

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In a study conducted by Richard Wolff, it was concluded that the British had vast economic prospects by acquiring land in the territory.136 In order to ensure constant supply of raw materials to European industries, the British acquired vast tracts of arable land in the country which they cultivated. The Arabs who were involved in the slave trade also needed to set up base in Africa where the captured slaves could be kept awaiting transportation. This necessitated further acquisition of land. Native tribes also needed land for their pastoral activities, resulting in increased pressures on land. The interest that the British had in land saw the introduction of foreign laws to govern land relations in the country while disrupting the social organisation that was already in place in the country. Over time, grievances arose mainly from Africans who had been dispossessed. The colonial government thus tasked the Carter Commission to look into these grievances.137 The Commission made an attempt at redressing the grievances that Africans had but this was largely unsuccessful. The centrality of land in the colonial context can also be seen from the numerous laws that were enacted to facilitate land alienation from Africans and that led to the subjugation of customary property arrangements already in place. Colonial laws that facilitated land alienation were continued by the African elite upon independence. The new African elite used land as a key political tool to award loyalists. Therefore, to sustain political power, amassment of wealth flourished through illegal land acquisitions. The history of the establishment of colonial rule in Kenya is replete with numerous ways that the colonial government adopted to facilitate acquisition of land in the country. Land was key in the economic interests of the colonial powers.138 Even among native African communities, domination of other communities and the land held by these communities was instrumental in strengthening their political and economic bases and domination over other communities.139 See Wolff RD, The economics of colonialism: Britain and Kenya, 1870-1930, Yale University Press, New Haven, 1974. 137 The terms of reference for the Commission were inter alia to: inquire into African grievances arising out of past alienation of land to non-Africans and to recommend how to cure those grievances; inquire into present and future African land requirements and recommend measures for meeting them; consider the position of the White Highlands; and review the terms and workings of the 1930 Native Lands Trust Ordinance and consider its administrative problems. See Carter, Report of the Kenya Land Commission. 138 Mweseli, ‘The centrality of land in Kenya’, 4. 139 See Zeleza PT, ‘Introduction: The Causes & Costs of War in Africa: From Liberation Struggles to the “War on Terror”’ in Nhema AG and Tiyambe Z (eds), The roots of African conflicts: The causes & costs, Ohio University Press, Ohio, 2008. 136

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This mentality has been deeply rooted among Kenyans where ownership of large tracts of land is synonymous with being wealthy. It is notable that some of the wealthiest persons in Kenya trace their wealth to the vast tracts of land they own.140 Financial institutions in Kenya have also traditionally relied on land as collateral for guaranteeing credit from persons seeking loans. Overemphasis on land as a form of property has resulted in many Kenyans not focussing on acquiring other forms of property.

Illegal acquisitions

In many parts of Kenya, land has been acquired without paying attention to existing land rights. The introduction of British colonial settlement in Kenya is an example where land was acquired without taking into account claims by communities that occupied these lands. Illegal acquisitions of land were particularly evident in the post-colonial era with the main casualties being government and Trust lands. The Report of the Truth, Justice and Reconciliation Commission (TJRC Report) notes that the legal safeguards that had been established at independence in relation to government land were done away with. Senior government officials, over the years, intensified illegal transfer of land from the public domain to private individuals and entities, mainly for political purposes.141 The Commission of Inquiry formed precisely to interrogate this question gives the example of Karura Forest where land was allocated to SK Macharia, Joseph Gilbert Kibe and Ngengi Muigai, the same event coinciding with the 1997 general elections.142 Such allocations did not take into account the public interest. Major onslaughts on public land occurred during the tenure of Presidents Jomo Kenyatta and Daniel Moi, largely because of powers that the president possessed in allocating public land through grants.143 Moreover, the Commissioner of Lands used the power of allotment to illegally grant public land to individuals144 especially within urban areas and town ‘Patrick Nzioka and Bernard Namunane: Political families own half of private wealth’ Daily Nation 20 February 2014 http://www.nation.co.ke/news/Kenyans-Wealth-Families-Politicians/1056-2215578-fbmv2mz/index.html on 1 September 2016. 141 Republic of Kenya, The final report of the truth, justice & reconciliation Commission of Kenya, vol IIB, 3 May 2013 Version, 279. 142 Republic of Kenya, Report of the Commission of inquiry into the illegal/irregular allocation of public land, 2004, 83. 143 Republic of Kenya, Report of the Commission of inquiry into the illegal/irregular allocation of public land, 83. 144 Republic of Kenya, Report of the Commission of inquiry into the illegal/irregular allocation of public land, 12. 140

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ships, without taking into account the public interest. Through the use of letters of allotment, numerous incidences of land grabbing occurred as individuals were able to abuse this public power. It is established that individuals could sell letters of allotment granted to them by the Commissioner of Lands at a premium and the purchaser would assume the responsibility of paying the government levies and charges and obtain title in their name.145 This was quite illegal as a letter of allotment is a mere contractual document that does not confer property in the land unless and until the conditions of the grant are fulfilled. In most of the land allocations involving public land, the letters of allotment or the subject land would be sold before the grant conditions had been fulfilled.146 Trust land was another category of land that faced massive onslaught in relation to illegal allocations. At Independence, land that was previously referred to as ‘Native Reserves’ or ‘Native Lands’ and to which the Land Adjudication Act147 and Land Consolidation Act148 had not been applied became vested in the County Councils of the areas in which they were situated.149 These lands became known as Trust Lands and were to be held by the County Councils in trust for the people within these localities.150 In most cases, County Councils betrayed the public trust that was vested in them.151 In this regard, the historic subjugation of this category of land continued to the detriment of local communities.152

Multiplicity of land laws and breakdown of land institutions

The introduction of colonial settlement in Kenya was facilitated and accompanied by the imposition of foreign law and part of this was the law governing Republic of Kenya, Report of the Commission of inquiry into the illegal/irregular allocation of public land, 12. 146 Republic of Kenya, Report of the Commission of inquiry into the illegal/irregular allocation of public land, 80. 147 Chapter 284, Laws of Kenya. 148 Chapter 283, Laws of Kenya. 149 Republic of Kenya, Report of the Commission of inquiry into the illegal/irregular allocation of public land, 13. 150 Republic of Kenya, The final report of the truth, justice & reconciliation Commission of Kenya, vol IIB, 3 May 2013 Version, 247. 151 Republic of Kenya, Sessional paper no. 3 of 2009 on national land policy, para 65. 152 This defeated the purpose of trust land and group lands which were established mainly to ensure the protection of the land rights of communities. Powerful individuals took advantage of the fact that most of the members of these communities were illiterate in order to dispossess them, and this has resulted in numerous conflicts, especially in the Rift Valley. Please refer to the earlier discussion in this chapter on post-colonial antecedents. 145

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land relations. Land was previously governed by the customary law of the various communities in Kenya and mechanisms had been established to ensure that the land would be equitably used by members of the community. The introduction of foreign law therefore had two interlinked effects, the first was ratification of the alienation of African land and the subsequent confusion in the land administration regime. Statutory law introduced the principle of sanctity of title which would be used to protect unlawfully acquired possessions once registration was effected. The common dogma was that registration of a person as an absolute proprietor extinguished all customary rights and interests over the land.153 Quite often the subjugation of customary property rights would be solemnised by courts as was the case in Belinda Murai & others v Amos Wainaina154 where the Court was of the view that once land is registered, not only are customary rights extinguished, but customary property law is also, by the fact of registration, ousted by statute and common law. Clearly, this reveals the tragedy in transposing statutory law and property rules without taking account of the social, economic and political dynamics of the country. What has also been witnessed in the country is the rapid breakdown of the institutions tasked with the management of land. These institutions inherited the colonial ideologies, especially the ideology that individualisation was the solution to the land challenges in the country. Individualisation has not been the panacea to the land problems, as community land-holding has refused to die and remains the largest form of land-holding in Kenya.155 The institutions tasked with the management of land in the country have been corrupt and sought to ensure that few individuals benefit at the expense of the many who are landless. These institutions have also lacked capacity to adequately deal with the land challenges in the country. Public access to these institutions is severely limited due to the numerous administrative bottlenecks and rigid procedures that have to be followed notwithstanding the fact that a large percentage of landholders in the country are illiterate.

Environmental degradation

Several land use practices in Kenya have had deleterious effects on the environment largely attributable to the developmental goals pursued in the country See Selah Obiero v Orego Opiyo [1972] EA 227. CA No. 46 of 1977. 155 See earlier discussion on the ‘Post-colonial antecedents.’ 153 154

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and the population growth. The degradation of the environment is evident in many urban areas where the landless have been forced to live in informal settlements that are unplanned for and lack basic amenities.156 The population pressures in these areas have seen numerous challenges arise, including poor disposal of waste, garbage and litter.157 In the rural areas, what has been witnessed is the wanton destruction of forests for timber and fuel and increased soil degradation.158 Challenges have also been witnessed in the management of wetlands in the country, a majority of which have been grabbed and others converted into human settlement159 in spite of their ecological value. The colonial government made attempts at ensuring that the activities of the settlers did not occasion injurious effects on the environment. One such initiative was the requirement that 10% of the land held by individuals be covered with trees. This was done through the 1902 Crown Lands Ordinance which gave the Commissioner certain powers in relation to land use planning.160 After the attainment of Independence, successive governments have also sought to ensure that the environment in the country is conserved. The Moi government led several initiatives which sought to ensure that soil erosion occurring in different parts of the country was contained in partnership with local communities. Further, the government introduced Nyayo Tea Zones which were inter alia meant to ensure the protection of forests.161 However, and in spite of the good intentions in establishing the Nyayo Otieno S and Williams A, The land question in Kenya: Addressing urban planning and land use, Lambert Academic Publishing, Saarbrücken, 2014, 3. 157 ‘Lisa Akinyi: Kenya’s waste management challenge’ 13 March 2013 http://www.irinnews.org/report/97638/kenya%E2%80%99s-waste-management-challenge on 7 June 2016. 158 Kibwana K, ‘Land tenure, spontaneous settlement and environmental management in Kenya’ in Wanjala (ed), Essays on land law. 159 See generally, Odote C, ‘Wise use and sustainable management of wetlands in Kenya’ in Okidi C, Kameri-Mbote P and Akech M (eds), Environmental governance in Kenya: Implementing the framework law, East African Educational Publishers, Nairobi, 2008. 160 Through this, every settler was required to: 1. Maintain 10% of his land in perpetuity as a forest reserve. In cases where less than 10% was already a forest, the holder was required to plant enough trees to bring the area…up to 10% of the total area. If there was no forest at all on the land, the holder was required to plant a minimum of 2% only. In either case, the planting could be spread over a period of sixteen years. 2. To bring 10% of his land under crops every year for the first three years of settlement, and ‘keep all cultivated lands in good heart and condition until he acquires a final certificate.’ 3. To enter into occupation within six months from the date of sale agreement and to erect a living house of reasonable permanent character upon his original holding within three years of entering into possession. 161 Klopp JM, ‘Deforestation and democratization: Patronage, politics and forests in Kenya’ 6 Journal of 156

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Tea Zones, public officials, including the former cabinet minister, Nicholas Biwott, took advantage of these areas to illegally acquire land.162 The enactment of the Environmental Management and Conservation Act (EMCA) 1999 is another initiative that was undertaken to ensure environmental conservation. The Act establishes the National Environment Management Authority (NEMA) as the body in charge of the management of the environment. However, incidences of environmental degradation continue to be witnessed in many parts of the country, partly attributable to institutional weaknesses and government’s failure to take a firm stance on conservation. Failure of the government to act decisively on the degradation that has been occasioned on Mau Forest is an indicator of the fact that more still needs to be done in the area of environmental conservation.163

g) Poor land use planning Poor land use planning is a common problem in Kenya with diverse negative consequences, especially in urban areas. In Kenya, urban areas experience high populations as a result of rural-urban migration.164 The challenge that inevitably arises is population pressure on the limited land that is available in urban areas. It is estimated that by 2050, half the country’s population will be living in urban centres.165 This has numerous implications especially on land and space in urban areas. A majority of the occupants of urban areas are forced to live in informal settlements because of poverty, limited land and low cost housing where there is no land use planning, creating a multitude of social problems.166 Land use planning in urban areas has also perennially failed to take account of the needs of the inhabitants of the informal areas and this arises from the fact that the inhabitants of these areas usually lack title to the land which they have occupied.167 The urban plans Eastern African Studies, 2 (2012), 357. Centre for Law and Research International, Kenya state of corruption report, Issues 7-14, Claripress, Nairobi, 2002, 32. See also Republic of Kenya, Report of the Commission of inquiry into the illegal/ irregular allocation of public land, 175, and Klopp, ‘Deforestation and democratization’, 357. 163 See Soi JK, ‘Politics and conservation of the Mau Forest in Kenya’ Master’s Thesis, University of Nairobi, July 2015. 164 Barr J and Sawler J, ‘Kenya: Development status and prospects’ 3330 Economic Development, 01 (2001), 6. 165 ‘Jacqueline Kubania: Quarter of Kenyans live in towns, World Bank Report says’ Daily Nation, 30 May 2016 http://www.nation.co.ke/news/World-Bank-report/1056-3224652-aifnpi/index.html on 1 September 2016. 166 Japan International Cooperation Agency, The project on integrated urban development master plan for the City of Nairobi in the Republic of Kenya, Interim Report Draft, May 2013, 2-132. 167 Otieno, ‘Urban Planning’, 56. 162

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formulated are thus unresponsive to the pressing needs in these areas.168 It should be noted that the persons and institutions tasked with the implementation of these plans fail to do so. Many urban areas in the country usually fail to periodically review the land use plans and as a result, the existing plans, are largely unresponsive to the challenges.169 With the substantive population growths within the urban areas, it is imperative that proper safeguards are put in place to guide development within these areas.

Marginalised groups and their land rights

Women and other marginalised groups have systemically been excluded from land ownership in the country notwithstanding the fact that access to land is of paramount importance in improving the situation of these groups. Application of customary and religious laws in practice has seen control over land matters being exerted by certain segments of the society while totally ignoring the land needs of women and marginalised communities. The following section examines the injustices that have ensued. i) Women Access to land in Kenya has in practice been affected by such factors as gender, ethnicity, and social and economic status of individuals.170 Kenya has largely lacked a system of land tenure that provides for equitable and efficient distribution of land ownership for both men and women within customary and statutory systems.171 This has to do largely with the customary foundations of many communities in the country where women only had access rights to land and not ownership.172 The law further worked to reinforce the domination that existed and in many occasions sanctioned it. Japan International Cooperation Agency, The project on integrated urban development master plan for the City of Nairobi in the Republic of Kenya, 2-13. 169 Japan International Cooperation Agency, The project on integrated urban development master plan for the City of Nairobi in the Republic of Kenya, 2-13. 170 Ikdahl I, Hellum A, Kaarhus R, and Benjaminsen T, ‘Human rights, formalizing and women’s land rights in Southern and Eastern Africa’ Noragric Report No. 26 (2005), 16. 171 Syagga PM, ‘Land ownership and use in Kenya: Policy prescriptions from an inequality perspective’ in in Society for International Development, Readings on inequality in Kenya: Sectoral dynamics and perspectives, SID East Africa, Nairobi, 2006, 289-344. 172 See Kenya National Commission on Human Rights, Luo culture and women’s rights to own and inherit property, 2007. Among the Luo, married women were allocated land for cultivation during their lifetime. However, they were not allowed to dispose of it in any form without authority from the husband or family. 168

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Patriarchy, which is a system that dominates many social organisations in Africa, has contributed towards discrimination against women when it comes to ownership and control of resources.173 These patriarchal biases were unsurprisingly reflected in written law, and in the pronouncements of courts. In 1973, in Esiroyo v Esiroyo174 the Court stated that a woman had no interest in the registered pieces of land and that for her to be granted rights over the land she had to show that the land in question was being held as trust property. As late as 2007, we still see this bias where an all-male five-judge bench of the Court of Appeal ruled that for a wife to be entitled to a share of matrimonial property, she had to prove direct financial contribution to its acquisition.175 It became imperative, therefore, for reforms to be put in place to ensure equal protection of the right of women to own land. However, even before the reforms had been instituted, there were court decisions, for example, Mary Rono v Jane Rono & another,176 which already took note of the need to remove gender bias in the division of property as required under the international instruments to which Kenya has ascribed. The Constitution of Kenya, 2010, has recognised the need for elimination of discriminatory practices. The national values and principle of governance under the Constitution include equity, social justice, inclusiveness, equality, human rights, non-discrimination and the protection of the marginalised.177 Various constitutional provisions also require the protection of the land rights of women. These include provisions dealing with access to justice, equality and freedom from discrimination, the protection of the right to property, principles of land policy178 and principles on judicial authority.179 The courts have sought to ensure that justice is dispensed to all, including women, regardless of their status. In Zibretta Atamba Shikumba v Livingstone Shikumba Shikhuyu & another,180 Chitembwe J observed that: The mere fact that the land was registered in the names of the 1st Defendant does not mean that the Plaintiff’s interest on the land were extinguished. The land was bought when he was lawfully married to the Plaintiff and therefore the Plaintiff also contributed to the purchase of the land. Contribution needs not be direct financial payment. Africa Union, African Development Bank and United Nations Economic Commission for Africa, Framework and guidelines on land policy in Africa, land policy in Africa, 8. 174 EA 388 (1973). 175 See Peter Mburu Echaria v Priscilla Njeri Echaria [2007] eKLR. 176 [2005] eKLR. 177 Article 10(2)(b), Constitution of Kenya (2010). 178 Article 60(1), Constitution of Kenya (2010), provides for the principles of land policy which include the elimination of gender discrimination in law, customs and practices related to land and property in land and eliminates gender discrimination in relation to land and property and gives everyone the right to access land. 179 Article 159, Constitution of Kenya (2010). 180 [2012] eKLR. 173

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The 2010 Constitution also tasks the National Land Commission with the administration of land in the country and is to be guided by the principles provided in Article 60 which include non-discrimination in land ownership and access to land. The courts have sought to ensure the protection of women’s rights by upholding the principle of equitable rights to property. The courts have held certain customary law practices that discriminate against women’s right to property as contrary to the Constitution.181 The National Land Policy (NLP) also identified the need for the protection of rights of women and minorities to own land.182 The guiding principles of the NLP include participation, equitable access to land, inclusion, securing land rights and gender sensitivity.183 It is also noted that the land rights of women require special attention. At the regional level, the AU Framework and Guidelines on Land Policy in Africa require governments to take adequate measures to ensure that the policies put in place to govern land do not lead to further marginalisation of groups that are already vulnerable such as women.184 The Convention on the Elimination of All Forms of Discrimination against Women further requires of state parties to ‘ensure on the basis of equality the same rights for both spouses in respect of ownership, acquisition, management, administration, enjoyment and disposing of property whether free of charge or for a valuable consideration.’185 This is meant to ensure that all the parties to a marriage have equal rights to property and to land, in this case. The African Charter on Human and Peoples’ Rights (ACHPR) also has provisions guaranteeing the right of everyone to property as well as protection from discrimination on a wide and open list of grounds186 The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa also requires state parties to promote women’s access to and control over productive resources such as land, and guarantee their right to property.187

183 184

See Vivian Cherono v Maria Chelangat Kerich [2014] eKLR. Republic of Kenya, Sessional paper no. 3 of 2009 on national land policy, para 5. Republic of Kenya, Sessional paper no. 3 of 2009 on national land policy, para 5. Africa Union, African Development Bank and United Nations Economic Commission for Africa, Framework and guidelines on land policy in Africa, land policy in Africa, 8. 185 Article 6(1)(H), Convention on the Elimination of All Forms of Discrimination against Women, 18 December 1979, 1249 UNTS 13. 186 Articles 14, and 2, African Charter on Human and Peoples’ Rights. 187 Article 19 (c), Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, 11 July 2003, CAB/LEG/66.6. 181 182

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All these legal provisions, taken in totality, are driven towards guaranteeing stronger protection of the right of women to own property and so reverse previous trends.188 It is also important that measures are taken to eliminate the negative effects of patriarchy on women’s ownership of property.189 The Kenyan legislature also has a key role to play in ensuring that the various legal protections accorded to the property rights of women are put into effect.190 Various proposals on how the legislature can facilitate realisation of these rights have also been proposed including the enactment of initiatives, such as tax credits and subsidies, where joint registration of property is done by both spouses.191 However, despite the numerous reforms in law, women are still the subject of discrimination in many parts of the country, especially in the rural areas. There still exist cultural practices that are discriminatory towards women. Due to such discrimination, including in economic matters, women cannot get the resources to purchase land.192 Cultural barriers also exist in certain areas which continue to bar women’s access to land as discussed earlier in this chapter. These discriminatory practices often drive women into deep poverty when they divorce, as they become the sole caretakers of their children with the limited resources that they have.193 ii) Marginalised communities The introduction of formal law in Kenya essentially resulted in the subjugation of the customary rights of groups and individuals. Under the English land law system, Africans were considered tenants at the will of the crown194 and as not having property rights over the lands in which they occupied. This is evident from the various proclamations and judicial decisions that arose during the colonial period.195 190 191 188 189

192 193

194 195

See Chapter Ten on matrimonial property rights. FIDA Kenya, Women’s land and property rights in Kenya, 2009. See the Chapter Ten on matrimonial property rights. Smith, Theano, Torbett, and Toussaint, ‘Women’s land and property rights in Kenya moving forward into a new era of equality’, 120. FIDA Kenya, Women’s land and property rights in Kenya. Smith J, Theano C, Torbett L, and Toussaint J, ‘Women’s land and property rights in Kenya moving forward into a new era of equality: A human rights report and proposed legislation’ 40 Georgetown Journal of International Law (2009), 3. See Okoth-Ogendo, Tenants of the Crown, 16. In Mulwa Gwanombi and Others Representing the Jibana Tribe v Abdulrasool Alidina Visram (1914) 5 E.A.L.R. 141. The Court held inter alia that ‘the Jibana have no title to the land by their own custom, either collectively or individually, but only a right to use the land which is in the occupation of the tribe. They cannot, therefore, confer title on a would-be purchaser either from the tribe or from individual

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The colonial government considered Africans incapable of owning land. Africans could only hold land as beneficiaries of a trust set up by the State.196 This led to the introduction of trust holdings that were adopted even in independent Kenya. Under the trust system, county councils were tasked with the administration of land on behalf of the people, largely in pastoral areas. English land law gave a lot of emphasis to sanctity of individualised title that superseded everything including the fact that the land may have been illegally acquired. At Independence, there was continuation of the policies that had been adopted in colonial Kenya. This took the form of extension to the rest of the country of the legal regime of economic organisation in the African sector as it had been during the colonial period.197 At the receiving end were communities who had in their history practiced pastoralism, hunting and gathering and who still held land largely on a communal basis. In Kenya, the onslaught against the lands held by communities has been predominant in areas like the Mau Complex where the existence of the Ogiek community is under threat from the continued commercial activities in the area.198 The traditional lands held by the Maasai pastoralists have also been lost as a result of the expansion of farming activities, private ranches and the many wildlife conservancies that have been established in the area.199 The Endorois have also lodged claims before the Kenyan courts200 and the African Commission on Human and Peoples’ Rights.201 The land rights of these groups have not been promoted and respected as the land rights of other dominant groups. Even courts, under the repealed constitutional dispensation, have not helped in respecting and promoting their land rights by providing adequate remedies for these communities and so they have resorted to regional judicial bodies to redress their grievances.202 members of the tribe.’ Okoth-Ogendo, Tenants of the Crown, 32. 197 Okoth-Ogendo, Tenants of the Crown, 164. 198 African Commission on Human and Peoples’ Rights v The Republic of Kenya, ACtHPR Application 006/2012. 199 Barume AK, Land rights of indigenous peoples in Africa: With special focus on central, eastern and southern Africa, International Work Group for Indigenous Affairs Publications, Copenhagen, 2010. 200 William Yatich Sitetalia, William Arap Ngasia et al. v Baringo County Council, Civil Case No. 183 of 2000. 201 Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, ACmHPR Comm. 276/03. The African Commission on Human and Peoples’ Rights during its 54th Ordinary Session on 5 Novemebr 2013, in Banjul, The Gambia, adopted Resolution 257: Resolution Calling on the Republic of Kenya to Implement the Endorois Decision. 202 See Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois 196

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The Kenyan land law has been reformed to adhere to the provisions of international law, for example, those of the African Charter, in order to take account of such groups of persons and, in this regard, these groups have been considered indigenous and so requiring protection in law.203 The African Commission, in its 2005 Report on indigenous populations and communities in Africa, thus concluded that; The term indigenous people is a term through which those groups-among the variety of ethnic groups within a State…who experience particular forms of systematic discrimination, subordination and marginalization because of their particular cultures and ways of life and mode of production…it is a term which they can voice the human rights abuses they suffer from-not only as individuals but also as groups or peoples. If genuinely understood in this way, it is a term through which the concerned groups can seek to achieve dialogue with the Governments of their countries over protection of fundamental individual and collective human rights.204

International human rights law205 has sought to remedy the injustices that have been visited upon these categories of persons and states have been required to adopt measures to ensure the protection of the land rights of indigenous people. This comes from the realization that the survival of indigenous groups is intricately linked to their territories and lands which is the source of their social and economic wellbeing.206 The Constitution seeks to ensure equitable access to land rights through the recognition of community land rights as one of the classifications of land in the country.207 It also seeks to ensure that communal landholdings, which have historically been subjugated in both law and practice, are respected and that the holders of these rights enjoy the same protection as that accorded to public and private land. The Constitution has further mandated Parliament with the enactment of a law to govern community land which has been enacted as indicated earlier.

Welfare Council) v Kenya. See the discussion in the earlier chapter on the African conception of property. African Commission on Human and People’s Rights, Report of the working group of experts, 2005, 102. See, for example, African Charter on Human and Peoples’ Rights. See Saramaka People v Suriname, IACtHR Judgment of 28 November 2007, and The Kichwa Indigenous People of Sarayaku v Ecuador, IACtHR Judgment of 27 June 2012. 207 Article 61, Constitution of Kenya (2010). 204 205 206 203

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7.6 Conclusion The Constitution of Kenya 2010 has taken cognisance of the many challenges facing land in the country and has provided the principles to guide land-holding in Kenya. It is therefore provided that land is to be held, used and managed in a manner that is equitable, efficient, productive and sustainable.208 These constitutional principles are meant to inform land governance in Kenya at all levels. They also address the land question(s) that have bedevilled land governance in Kenya since the colonial era. These principles are canvassed in subsequent chapters of the book.

208

Article 60, Constitution of Kenya (2010).

Chapter Eight

LAND TENURE

8.0 Introduction Land is one of the most important natural resources for mankind. It has multiple values and is the basis of livelihood and survival of most communities in Kenya. Land is a finite resource, and with the multiple purposes that it serves, competing and overlapping interests by different persons over access, use and control are inevitable. It becomes necessary, therefore, to understand the quantum, amount or content of rights that one can have over land and how those rights can be acquired, held and transferred from one person to another. Additionally, the relationships that exist amongst people over time with respect to subjects of ownership become increasingly vital in regulating property. Consequently, land law provides rules that aid in identifying and defining the diverse interests in land, categories of land and interest holders. These rules constitute what we call tenure. In this chapter, we discuss land tenure in Kenya. We start the discussion by conceptualising land tenure using Okoth-Ogendo’s tripartite question ‘who holds what interest in what land.’ In this regard, the ‘who’ is explained as ‘people dimension’ of land tenure constituting the person, the proprietor, land owner or claimant of a subject of ownership. The ‘what interest’ refers to the quantum or amount of rights that the ‘who’ can have in land. And lastly, the ‘what land’ is understood as being the spatial dimension of tenure and includes the physical space (broad categories of community, public and private land). In the final part, the chapter explores how diverse land tenure categories have manifested themselves in Kenya and the changes they have undergone with time.

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8.1 Conceptualising tenure As pointed out elsewhere, ownership of property creates social obligations.1 In landholding, use and management, there exists a multitude of overlays of manland relations that define a society’s interactions with land.2 The totality of all these relations and their embodiment are defined in the concept of tenure. Tenure denotes the recognition of a right, a right to own or hold land.3 It could also be a right of persons to use a resource and to determine the nature and extent of use by others.4 A right signifies an affirmative claim in favour of one as against another in respect of a given situation or object in which the right holder has an interest.5 Conversely, a right-holder owes certain obligations to others and to society, as discussed in chapters one and two. Interests by right holders may either be overriding, overlapping, complementary or competing.6 Such interactions between the rights of owners and other people in relation to land also define tenure.7 Tenure also guarantees people the right of access to land and the security and confidence that they will not be arbitrarily deprived of their land rights.8 By land tenure, we refer to the rules that define how individuals gain access to, and acquire, user rights over land either temporarily or permanently.9 It also determines the physical and proprietary relationships between persons and land, and is reflective of the manner in which rights over land are distributed in society.10 According to Okoth-Ogendo, to determine the operative tenure arrangement in a

See chapter four on the role of property. Ezeomah C, ‘The settlement problems of nomadic Fulani in Nigeria’ 27 Rural Africana (1987), 35-45. Dekker HAL, In pursuit of land tenure security: Essays on land reform and land tenure, Pallas Publications, Amsterdam, 2005, 1. 4 See also Akech M, ‘Land, the environment and the courts in Kenya’ Background Paper for the Environment and Land Law Reports (2006), 3. 5 Bell A and Parchomovsky G, ‘A theory of property’ 90 Cornell Law Review (2005), 531. 6 Overriding interests may exist where, for example, a sovereign (a state or political entity in a community) has the powers to allocate or reallocate land through expropriation and other methods. Overlapping interests arise where several parties are allocated rights over the same parcels of land. Complementary interests arise where different parties share interests in the same parcel of land. Competing interests arise where different parties are in contestation or have conflicting rights over the same property. See generally http://www.unep.org/training/programmes/Instructor%20Version/Part_2/Activities/Economics_of_Ecosystems/Land/Supplemental/What_is_Land_Tenure.pdf on 3 October 2016. 7 Rose C, ‘Property as the keystone right’ 71 Notre Dame Law Review, 3 (1999), 329. 8 Knight RS, ‘Statutory recognition of customary land rights in Africa: An investigation into the best practices for law making and implementation’ FAO Legislative Study 105 (2010). 9 Ezeomah, ‘The settlement problems of nomadic Fulani in Nigeria’, 35-45 10 Republic of Kenya, Sessional paper no. 3 of 2009 on national land policy, 2009, para 52. 1 2

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given context one needs to answer the tripartite question as to who owns, what interest in what land.11 Tenure as a land law concept is traceable to the Norman conquest of England in 1066, when King William made a proclamation that all land in England was owned by the king and successors to the crown.12 Therefore, the king was vested with authority and could grant land to his subjects. As discussed in other chapters of this work, there were different methods by which one could hold land, that were reflective of the different forms of services one offered to the king. These methods were known as tenures.13 Under feudalism, the crown as the ‘overlord’ held radical title to land and was at the apex of land relations. ‘Tenants’ who were subjects of the crown did not own land per se but held interests in land akin to user rights. The relationship between the feudal kings and their subjects has contributed significantly to our understanding of how people can have interests in land without owning the physical space. Today, the concept of tenure has evolved to represent the entire relations that people have with land and other land-based resources and the attendant limitations.14 Under the English property system, land meant more than the physical solum. It also denoted the physical attachments on the land, the things found underneath and on the surface including the airspace.15 Common law captured this in the maxim cuius est solum, ejus est usque ad coelum et ad inferos (that he who owns the land owns everything reaching up to the very heavens and down to the depths of the earth). In the African system, land was held collectively by the community and community members had access and use rights (based on a specific function, membership status and performance of reciprocal obligations to the community).16 Certain social dynamics, norms, traditions and beliefs shaped these access and use rights.17 Therefore, the concept of tenure is not necessarily alien to Africa. However, the Okoth-Ogendo HWO, Tenants of the crown: Evolution of agrarian law and institutions in Kenya, African Centre for Technology Studies Press, Nairobi, 1991. Bohannan, on the other hand, has defined the three factors important in describing land tenure as 1) the concept of land 2) a mode of correlating man with his physical environment, and 3) a social system with spatial dimension. See Bohannan P, “‘Land’, ‘tenure’ and land tenure” University of Wisconsin-Madison Land Tenure Center, (1973), 2. 12 Todd WF, Progress and property rights: From the Greeks to Magna Carta to the constitution, American Institute for Economic Research, Massachusetts, 2009, 3. 13 Reid CJ, ‘The seventeenth-century revolution in the English land law’ 43 Cleveland State Law Review, 221 (1995), 232. 14 Republic of Kenya, Sessional paper no. 3 of 2009 on national land policy, para 52. 15 See discussions in chapter seven on land as property. 16 See chapter three on the African view of property. 17 See chapter three on the African view of property. 11

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concept of tenure applicable in the African commons manifests wider relations amongst community members that go beyond the living generations to the dead and the yet-to-be-born.18 As explained in chapter three, property is a trans-generational asset meaning that African land-holding does not put human beings at the centre of the definition of land, as the western conceptions of property would do. Human beings are not the only ‘owners’ of land but relate with it as ‘relatives’ and as ‘equals.’19 In other words, ‘mother nature’ is ‘personified’ in the African context and is highly revered as a source of life. In view of the competing interests over natural resources, tenure rules have also been devised to govern the management of resources found on land. For instance, in relation to forests, we have the concept of forest tenure which is used to determine who can use forest resources for how long and under what conditions.20 It is also about access, rights to harvest forest resources, to make decisions about use patterns and who is to use the resources and who is prevented from using them and to transfer, sell or lease the resources.21 The broad precepts of forest tenure therefore include ownership, tenancy and arrangements for the use of forests.22 Clear delineation of forest tenure has been said to effectively contribute to the development of various societies and to minimise conflicts arising from the use of forest resources.23 Another category of tenure is tree tenure. Under it, trees become the basis of ownership, distinct from land.24 Traditionally, especially in the coastal region, it is possible to have rights to the coconut trees (usufruct rights) growing in another’s land. Tree tenure would therefore regulate how the person with the rights of accessing and enjoying the trees would do that while respecting the rights of the land owner. In the ensuing section, we discuss land tenure using Okoth-Ogendo’s tripartite framework of who holds what interest in what land. See chapter three on the African view of property. See chapter three on the African view of property. On the concept of ‘All my relations’ http://firstnationspedagogy.com/interconnection.html on 11 October 2016. 20 Food and Agriculture Organization of the United Nations, Reforming forest tenure: Issues, principles and process, FAO Forestry Paper 165, 2011, 11. 21 International Institute for Environment and Development and Food and Agriculture Organization of the United Nations, Improving governance of forest tenure: A practical guide, 2013, 2. 22 Kariuki F, ‘Securing land rights in community forests: Assessment of Article 63(2)(d) of the Constitution’ LL.M Thesis, University of Nairobi, 2013, 37. 23 Clarke J, ‘Trends in forest ownership, forest resources tenure and institutional arrangements: Are they contributing to better forest management and poverty reduction? A case study from South Africa’ 9 http://www.fao.org/forestry/12510-0bf4e5f3c791fcb54e6ff81004ba6c9da.pdf on 20 June 2015. 24 Kariuki, ‘Securing land rights in community forests’, 154. 18 19

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8.2 Land tenure: answering the tripartite question (a) What interest? Interest describes the relationship that the landowner has with the land. It is the totality of “rights” or quantum or content or amount of rights vested in an owner with respect to a particular parcel of land.25 These rights are usually subject to rights held by other persons and regulations imposed by the state. Examining the nature of interests one has over land involves a review of the claims that another person or group may have over the land. It can therefore reveal a range of activities that a person can enjoy over a given parcel of land.26 Ownership is one of the ways through which one’s interest in land can be manifested.27 Ownership is viewed as a relational concept which cannot be examined without a review of the relationships amongst people regarding property.28 Certain incidences are identifiable in the idea of ownership either in whole or in part.29 Ownership can either be absolute or limited. Where the interest is absolute a person is said to have allodial ownership. Allodial ownership is the most comprehensive interest in land and it becomes the standard by which all other interests in land are defined.30 Ownership of land can further be divided into lesser interests such as estates, encumbrances and servitudes.31 Estates define the duration of an interest that a person has over land and can further be divided into freehold and leasehold.32 Freehold estates confer some form of ‘absolute’ interest in the interest holder while leasehold interests are interests in the land of another for a term. Encumbrances are burdens imposed over land, for example, a charge; while servitudes are rights that one has over the land of another person such as easements and profits à prendre.33

27 28 29 25 26

32 33 30 31

Bohannan, “‘Land’, ‘tenure’ and land tenure”. Fekumo JF, Principles of Nigerian customary land law, F&F Publishers, Port Harcourt, 2002, 79. See discussions in Chapter One. Johnson DR, ‘Reflections on the bundle of rights’ 32 Vermont Law Review (2007), 247. AM Honore lists the incidences as; the right to possess; the right to use; the right to manage; the right to the income; the right to capital; the right to security; the power of transmissibility; the absence of term; the prohibition of harmful use; liability to execution; and residuary character. Bohannan, “‘Land’, ‘tenure’ and land tenure”. See discussions in the Chapter dealing with ‘Property Rights in Land.’ See discussions in the Chapter dealing with ‘Property Rights in Land.’ These interests are discussed in the Chapter dealing with ‘Property Rights in Land.’

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(b) Interest holder-who? The question here is about the entity in which the interest in land is vested. In examining the nature of interest holders, the state features predominantly as it is assumed that it has allodial title to land.34 As such, the state is the conferrer of land rights and its protector.35 The state (through property law) defines the tenurial systems that are existent in the country. One of the entities that can hold land or interests in land is the state or the public collectively.36 It is worth noting, however, that ‘all land in Kenya belongs to the people of Kenya collectively as a nation, as communities and as individuals’ 37 meaning that radical title vests in the people, and the state (both national and county governments) holds public land in trust for the people. A state holds public property as a representative of the aspirations of the people within the country, as protector of the public interest and also as the regulator of social and property relations. Landholding by the state is also important from an international perspective, since land is a delineator of a state’s territory (geographical space over which a government is established and jurisdiction is exercised).38 Brierly explains this position by recounting that, At the basis of international law, lies the notion that a state occupies a definite part of the surface of the earth, within which it normally exercises, subject to the limitations imposed by international law, jurisdiction over persons and things to the exclusion of the jurisdiction of other states. When a state exercises an authority of this kind over a certain territory, it is popularly said to have ‘sovereignty’ over the territory, but that much abused word is here used in a rather special sense. It refers here…to the nature of the rights over territory: and in the absence of any better word it is a convenient way of contrasting the fullest rights over territory known to law with minor territorial rights to be later mentioned. Territorial sovereignty bears an obvious resemblance to ownership in private law, less marked, however, today than it was in the days of the patrimonial state, when a kingdom and everything in it were regarded as being to the king very much a landed estate was to the owner.39

Kambel E and MacKay F, ‘The rights of indigenous peoples and maroons in Suriname’ International Work Group for Indigenous Affairs Document No. 96 (1999), 85. 35 See discussions in Chapter One. 36 See Articles 61(2) and 62, Constitution of Kenya (2010), which allows the nation as a collective to own land and the categories of land that can be held collectively by the public respectively. 37 Article 61(1), Constitution of Kenya (2010). 38 See discussion in Chapter Four. 39 See Clapham A, Brierly’s law of nations: An introduction to the role of international law in international relations, 7ed, Oxford University Press, Oxford, 2012, 168. 34

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Brierly equates the interest that the state holds with a private person’s interest over land. However, the state also holds public land acts as a trustee on behalf of the people. Communities can also be interest holders.40 Groups of persons sharing common ancestry, similar interests or socio-economic conditions, ethnicity, similar culture or unique mode of livelihood, same geographical or ecological space may be vested with community land.41 African communities held resources communally as discussed in Chapter Three. The words of Rayner CJ quoted by Lord Haldane in Amodu Tijani v Secretary, Southern Nigeria42 captures the concept of landholding in Africa thus: The next fact which it is important to bear in mind in order to understand the native land law is that the notion of individual ownership is quite foreign to native ideas. Land belongs to the community, the village, or the family, never to the individual.

An individual could not expropriate land from the community for his own use.43 He had access and user rights to community land. Where an individual was granted land he had to manage and control the land in accordance with native law or established customs.44 Such an individual acted as a trustee on behalf of the other members of the community and could not dispose of the land without first consulting the community leadership and, upon the death of a person, the interest vested in the family.45 Allodial title in the case of communal ownership vests in the community as a whole and in some communities, the chief holds land as a trustee on behalf of the people.46 Under communal ownerships, interests can also be conferred on smaller groups like the clan and the family who hold land according to prescribed standards.47 Such interests are usually less than the allodial title that the entire community has. See generally Article 61, Constitution of Kenya (2010). Article 63(1), Constitution of Kenya (2010). See also Section 2, Community Land Act (Act No. 27 of 2016). 42 [1921] 2 AC 399. 43 Section 27, Community Land Act (Act No. 27 of 2016), which says that where one has individual rights in community land, they cannot be issued with a separate title. 44 Okoth-Ogendo HWO, ‘The Tragic African Commons: A century of expropriation, suppression and subversion’ 1 University of Nairobi Law Journal (2003), 108. 45 Bohannan, “‘Land’, ‘tenure’ and land tenure”, 4. 46 Bohannan, “‘Land’, ‘tenure’ and land tenure”, 4. 47 See Sections 12(b) and 2, Community Land Act (Act No. 27 of 2016), which says that community land can be held as family or clan land. 40 41

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Under communal form of ownership, interests in land are usually vested following patrimonial dynamics within these societies.48 In this regard, the male head of the house is usually vested with interests on behalf of the rest of the members of the family. When the male head dies, a male heir is appointed from persons who have shown a sense of responsibility within the family.49 Where the community is the interest holder, mechanisms are devised to enable members of the community to access land, and where disputes arise there are mechanisms for amicable resolution of disputes. This way, the individual is guaranteed access to the land and its occupation is sanctioned by the administrative entities within the community.50 Individuals are the last category of persons to hold interests over land.51 Individuals claim interest on land once they have expropriated sections of the earth to themselves and their claim is usually backed by the law. Interests held by individuals may either be timed or perpetual. Where it is perpetual, the interest can be transferred to one’s heirs, whereas, where it is for a time, it reverts to the grantor after the term expires.52 The East African Royal Commission 1953-55 while proposing individualisation of title in Kenya stated that: It should be made clear that in using the word “individual” we mean to include any association of individuals which can act as a single entity. It would include such associations as cooperatives and companies, and it would not exclude any customary associations of Africans which in fact enable a single and undivided control to be exercised over the use of land in respect of which the interests are held.

As such, interests regarding land can be conferred upon entities acting as single entities; it could be a natural person or a juristic person such as a company.53 Individual interests guarantee exclusivity and in many cases also involve perpetuity in the holding of the interests.54 Once this has been done, possessory rights vest in the individual and his interest in the land is defined by law. Kameri-Mbote P, ‘The land has its owners! Gender issues in land tenure under customary law’ UNDP-International Land Coalition Workshop: Land Rights for African Development: From Knowledge to Action, Nairobi, October 31 – November 3, 2005, 1. 49 Kameri-Mbote, ‘The land has its owners!’, 12. 50 Bohannan, “‘Land’, ‘tenure’ and land tenure”, 4. 51 See Article 61, Constitution of Kenya (2010). 52 It is timed, for example, in the case of a lease as it runs for a specified period of time, at the end of which the land reverts back to the owner. It is perpetual in the case of a freehold interest and passed on to the relations of the owner. 53 See generally Article 64, Constitution of Kenya (2010). 54 See Benkler Y, ‘Property, commons, and the first amendment: Towards a core common infrastructure’ White Paper for the First Amendment Program Brennan Center for Justice at NYU School of Law (2001), 40. 48

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(c) What land? As stated in the preceding sections, land tenure denotes the relations that people have in land. Land is therefore at the core of defining tenure. A look at the question “what land?” takes one to the various categories of land identifiable within a given jurisdiction. In Kenya, three categories of land have been recognised by the Constitution and these represent the “what land” under the concept of tenure. Land in Kenya is classified as public, private or community.55 Under the customary landholding system, the question of ‘what land’ was puzzling since most of the communities were pastoralist in nature and moved from one open space to another.56 Boundaries were defined according to tribal limits. However, communities were able to define the extent of their claims over land and the activities of the members were largely restricted to these areas.57 However, and as explained in chapter three, the concept of land under customary and common law systems differs from the concept of fixtures.58 In ‘A Memorandum on native land tenure’ in 1945 RM Northcote notes that: ‘The Bantu had no idea of a right to the land in itself in res, land was just there for cultivation and was no sense a chattel. The general right over the land might be termed as usufructuary, occupational, agricultural right and heritable. A man had security of tenure as long as he behaved himself and obeyed the chief and, was agricultural, kept it under cultivation…Allocation of the lands was in the hands of the headmen, elders, clan heads or chiefs…The land was there for the community and no one could use it to the detriment of the community…In other words the right of the community or the general good was over-riding. Subject to the above the right was a perpetual one, or put another way, nonterminable, except by action or non-action on the part of the occupier.’59

From the foregoing, it is easier to understand why a freehold interest in land was not common. The right held by communities was nothing more than an interest in land of a nature recognised by customary law.60 Such an interest was a right of exclusive occupation terminable in certain specified circumstances. The community or tribe had something in the nature of a reversionary interest in the land Article 61(2), Constitution of Kenya (2010). See Bentsi-Enchil K, ‘Do African systems of land tenure require a special terminology?’ 9 Journal of African Law, 2 (1965). 57 Northcote RM in ‘A Memorandum on native land tenure,’ 1945 quoted in Okoth-Ogendo HWO, Teaching manuals on the law of property (83/84 1982), 595. 58 The concept of fixtures indicates that whatever is fixed permanently on land becomes part of the land. 59 Northcote RM in ‘A Memorandum on native land tenure,’ 1945 quoted in Okoth-Ogendo, Teaching manuals on the law of property, 595-596. 60 Per Gray CJ in Mubena Bin Said v The Registrar of Titles and another [1948] 16 EAC 79. 55 56

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which took effect when occupation was lawfully terminated.61 Land is therefore viewed not only as the physical solum, since one could have rights over the crops of another person’s land. As such the doctrine of fixtures is alien to African conceptions of property. This is evident from the fact that land use was permissive and not prohibitive as long as the individual was acting with the authority of the political units in the community.62 Under the common law, land represented the physical solum and the attachments to it.63 Land meant more than the soil but also included all things found in the aerospace above and any fixtures on the land which have been put there even by strangers.64 The commonality between the concept of land in both the customary and the common law position is the fact that land represents a space, a space whose use and occupation shapes the relations between persons.65 This space is delineated in both systems to ensure efficiency in the property relations and to ensure that there may be no conflicting interests over the same space.66 The following section examines the land tenure typologies that have existed in Kenya and the challenges that they have faced over the years.

8.3 Land tenure in Kenya To a large extent, land tenure in Kenya has been influenced by various interlocking historical, ecological, demographic, technological and socio-political factors.67 Because tenure largely represents social relationships, it becomes important to examine the ‘social contracts’ prevalent within a given context to identify the tenure systems. Land tenure in Kenya has gone through much transformation in the course of history from the pre-colonial era, with the imposition of alien property laws, to the present day. Before the advent of colonialism, communal land tenure was the prevailing system as discussed previously in Chapter Three. With the in Per Gray CJ in Mubena Bin Said v The Registrar of Titles and another [1948] 16 EAC 79. Okoth-Ogendo, Teaching manuals on the law of property, 537. 63 Esmaeili H, ‘Boundaries of land, fixtures and ownership of minerals and resources: The search for certainty’ in Esmaeili H and Grigg B (eds), The boundaries of Australian property law, Cambridge University Press, Melbourne, 2016, 111. 64 Esmaeili, ‘Boundaries of land, fixtures and ownership of minerals and resources’, 111. 65 Bentsi-Enchil, ‘Do African systems of land tenure require a special terminology?’, 115. 66 Bentsi-Enchil, ‘Do African systems of land tenure require a special terminology?’, 115. 67 Wanjala S, ‘Land tenure and soil conservation in Kenya’ in Wanjala S (ed), Essays on land law: The Reform Debate in Kenya, University of Nairobi, Nairobi, 2000, 138. 61 62

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troduction of British conceptions of property, new tenure regimes were established, that is private68 and crown (later government)69 land tenure systems. These three tenure categories, communal or customary, government and private tenure, have existed side by side with far-reaching ramifications on land governance, although not with the same level of protection.70 There have also existed informal tenure types that have not been recognised by law per se.71 Informal tenure mainly exists within informal settlements (commonly known as slums), where inhabitants are not able to meet the costs associated with land ownership and therefore have to devise mechanisms to enable them access land and other basic services like shelter, water, electricity, education, security etc.72 Informal land tenure has therefore evolved in response to the needs of the poor settlement dwellers who remain unserved by the formal tenure arrangements. Such tenurial arrangements end up being more socially legitimate in the areas where they are applicable as they are able to meet the needs of the inhabitants.73 However, people in such areas continue to suffer tenure insecurity because formality in property holding has been equated with legality, with the consequence that property laws have jealously guarded formally registered property while forcing informal tenures to the periphery.74 This has increased tenure insecurity, led to loss of lives from evictions and lack of access to basic services. In Kenya, the Constitution classifies land into three tenure types, public, private and community.75 Under the repealed land law regime, land tenure was classed as government, trust or private. Government land was held by the government76 while the local authorities held land in trust for the people within the locality.77 As discussed in the ensuing part, landholding by these two entities, that is the government and local authorities, has historically been characterised by abuse of trust, lack of transparency, lack of a clear legal and policy framework, land grabbing, Allowed under various laws including, Crown Land Ordinance (1915), Registration of Titles Ordinance (1919), and Land Titles Ordinance (1908). 69 Established under Crown Land Ordinance (1915). 70 As discussed in Chapter Three and elsewhere in this book, communal land tenure has suffered subordination in law throughout the course of history in Kenya. 71 Okoth-Ogendo, ‘The tragic African commons’, 112. See also, Kameri-Mbote P, Odote C, Musembi C and Kamande M, Ours by right: Law, politics and realities of community property in Kenya, Strathmore University Press, Nairobi, 2013, 104. 72 Akiba Mashinani Trust, Situation analysis report, 2014, 32. 73 Otieno S, ‘Urban planning: To include or to exclude’ LL.B Thesis, University of Nairobi, 2015, 17. 74 Otieno, ‘Urban planning’, 26. 75 Article 61(2), Constitution of Kenya (2010). 76 Section 3, Government Land Act (Chapter 280, Laws of Kenya) (Repealed). 77 Section 2, Trust Land Act (Chapter 288, Laws of Kenya) (Repealed). 68

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political interference in land governance, double allocations of land, and concentration of land amongst the rich and powerful.78 Over time the land law regime was convoluted, with multiple legislations governing land management and administration creating confusion, tenure insecurity and providing room for corrupt practices. The following section discusses the land tenure types in the pre-2010 eon in Kenya.

8.3.1 Communal tenure Before the introduction of foreign rule, customary law predominantly regulated and governed relations (including property) among African communities. Land was communally held and radical title to land rested in the community as a whole with individuals and families getting only user rights.79 Communal tenure still obtains even today. The defining characteristics of the commons as explained by Okoth-Ogendo are that land: is held as a transgenerational asset; it is managed at different levels of social organisation; and it is held in function-specific ways meaning that land is granted for purposes such as cultivation, grazing, hunting, transit, recreation, fishing and biodiversity conservation.80 Despite the fact that land is held on a communal basis, private rights over crops and attachments to land can be granted to individuals.81 Land rights can also be granted to the family or clan.82 The family head reserves the rights on behalf of the other family members. However, resources like pasture and water points are shared and cannot be expropriated by individuals.83 Therefore, land in the precolonial epoch was communally held and was not terra nullius as was commonly conceived by European settlers. Introduction of foreign laws disrupted existing communal land regimes as the decision of Judge Hamilton in Mulwa Gwanombi v Alidina Visram 84 reveals. In that case the judge stated, inter alia, that: 80 81

Muungano wa Wanavijiji, Manifesto on land security and permanent shelter for the urban poor, 1997. Bentsi-Enchill, ‘Do African systems of land tenure require a special terminology’, 132. Okoth-Ogendo, ‘The tragic African commons’, 108. Meek CK, Land tenure and land administration in Nigeria and the Cameroons, Her Majesty’s Stationary Office, London, 1957, 113. 82 See Section 12(b), Community Land Act (Act No. 27 of 2016). 83 Akabane H, ‘Traditional patterns of land occupancy in Black Africa’ 8 Developing Economies, 2 (1970), 161-179. 84 Mulwa Gwanombi v Alidina Visram [1913] 5 KLR 141. 78

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no person can sell more than which he himself has (and as no Jibans or body of Jibans have more than a common right to occupy and use the tribal land, title to which is not claimed by them individually or collectively), it follows that a sale of a portion of such tribal land whether by one or more individual is bad and can confer no title.

This decision effectively meant that Africans had no title over the land which they occupied and hence could not transfer title. Co-existence of the two land regimes resulted in a duality in land laws and policies that perpetuated a dual system of economic relationships consisting of an export enclave controlled by a small number of European settlers and a subsistence periphery operated by a large number of African peasantry.85 According to the National Land Policy, the duality was manifest in the following ways: (a)

existence of systems of land tenure based on principles of English property law, on the one hand, and a largely neglected regime of customary property law on the other;

(b) existence of a structure of land distribution characterised by large holdings of high potential land, on the one hand, and highly degraded and fragmented small holdings on the other; (c) existence of an autonomous and producer-controlled legal and administrative structure for the management of the European sector, as opposed to a coercive and government-controlled structure for the African areas; and, (d) a policy environment designed to facilitate the development of the European sector of the economy by under-developing its African counterpart.86

Private property ownership saw massive dispossession of the natives who were forced into ‘native reserves’ established by the colonial government.87 OkothOgendo documents that the original reason for the establishment of reserves was simply to make way for European settlement.88 It is also argued that the reason why the colonial government settled Africans in dry unproductive lands prone to diseases was fear of competition in agriculture from Africans.89 The reserves were overpopulated and lacked basic amenities.90 According to the Carter Commission, the effect of establishing the reserves was that any claims by Africans to lands outside the reserves were extinguished, granting the settlers unlimited rights over

87 88 89 90 85 86

Republic of Kenya, Sessional paper no. 3 of 2009 on national land policy, para 23. Republic of Kenya, Sessional paper no. 3 of 2009 on national land policy, para 23. Okoth-Ogendo, Tenants of the crown, 53. Okoth-Ogendo, Tenants of the crown, 53. Okoth-Ogendo, Tenants of the crown, 61. Okoth-Ogendo, Tenants of the crown, 61.

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fertile white highlands.91 In a bid to take consideration of concerns raised by Africans, the Native Trust Lands Ordinance, 193892 was enacted and all areas that were previously referred to as ‘native reserves’ became ‘native lands’ and were in effect no longer considered ‘crown land’ under the 1930 Ordinance, and were no longer governed by the Crown Lands Ordinance, 1915.93 Native Lands Trust Boards were established for the administration of these lands.94 Participation of Africans in the activities of these Boards was kept to a minimum while giving colonial administrators more say in the management of these lands. With this arrangement, administrative pitfalls were inevitable as the European officers were not accountable to the Africans on whose behalf they administered native lands.95 Colonial chiefs were also used to administer land in the African areas.96 The chiefs acted as trustee of the African communities. In certain cases, there were dispossessions of many African communities due to agreements that were entered into between the chiefs and the colonial government.97 A case in point is the 1904 and 1911 Anglo-Maasai agreements signed between Maasai ritual heads and the colonial government, where the chiefs signed an agreement stating that it was in the best interest of the Maasai to move into the reserves to pave way for the British to occupy their lands.98 Systems adopted by the colonial government to regulate communal property were not congruent with the dynamics of informal communal holdings.99 What the colonial ideology failed to appreciate is that customary landholding systems are dynamic and complex in nature and omnibus legislations and administrative mechanisms cannot address the needs of the rights holders.100 Ben Cousins clearly describes the trend that had been adopted by the colonial government which resulted in the destruction of the original customary holding systems by stating that the: ‘...(in)filtration of the customary law by the colonial administration had an effect of transforming custom by overly emphasizing the group-based tenure of land rights,

93 94 95 91 92

98 99

96 97

100

Report of the Kenya Land Commission (The Carter Commission) Cmd. 4556, 1934, para 30. See Ordinance No. 28/1938 repealing the 1930 Ordinance. See Native Lands Trust Ordinance (No. 9 of 1930). Native Lands Trust Ordinance (No. 28 of 1938). Ghai YP and McAuslan P, Public law and political change in Kenya: A study of the legal framework of government from colonial times to the present, Oxford University Press, Nairobi, 1970, 92. Hornsby C, Kenya: A history since independence, IB Tauris, London, 2012, 27. Hornsby, Kenya, 27. See generally the 1904 and 1911 Agreements in the author’s file. Okoth-Ogendo, ‘The tragic African commons’, 111. Okoth-Ogendo, ‘The tragic African commons’, 111.

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redefining women’s land rights as secondary and therefore subordinate to the land rights of men, and eroding mechanisms that constrained the power of traditional leaders and kept them responsive to rights holders, these being replaced by a requirement for ‘upward accountability’ to the state, creating opportunities for abuse of power and corruption.’101

Upon the attainment of Independence, the native areas became trust lands.102 Most of the land in the country fell into this category. Land was administered by the federal units under the ‘Majimbo Constitution.’103 Subsequently, the powers to acquire trust lands were vested in the central government.104 The adoption of the Trust Lands Act at independence saw the establishment of trust lands for the benefit of African communities.105 County councils were to manage trust lands on behalf of local communities.106 In relation to administration of trust lands, the Act outlined a process through which trust land could be disposed. The repealed Constitution also outlined the manner in which trust land was to be managed.107 In relation to ownership of trust lands, the Constitution provided that: All trust land shall vest in the county council within whose area of jurisdiction it is situated…each county council shall hold trust land vested in it for the benefits of persons ordinarily resident on that land and shall give effect to such rights, interests or other benefits in respect of the land as may, under the African customary law for the time being in force and applicable thereto, be vested in any tribe, group, family or individual.108

However, section 115 of the repealed Constitution was qualified by different legislations like the Trust Land Act, which stated that: In respect of the occupation, use, control, inheritance, succession and disposal of any Trust land, every tribe, group, family and individual shall have all the rights which they enjoy or may enjoy by virtue of existing African customary law or any subsequent modifications thereof, in so far as such rights are not repugnant to any of the provisions of this Act, or to any rules made thereunder, or to the provisions of any other law for the time being in force.109 See Cousins B, ‘More than socially embedded: the distinctive character of ‘communal tenure’ 7 Journal of Agrarian Change, 3 (2007), 299. 102 Section 3, Trust Land Act (Chapter 288, Laws of Kenya) (Repealed) and Section 114, Repealed Constitution of Kenya. 103 Republic of Kenya, The final report of the truth, justice & reconciliation Commission of Kenya, vol IIB, 3 May 2013 Version, 209. 104 Republic of Kenya, The final report of the truth, justice & reconciliation Commission of Kenya, vol IIB, 3 May 2013 Version, 209. 105 See Sections 3 and 8(1), Trust Land Act (Chapter 288, Laws of Kenya) (Repealed). 106 Section 2, Trust Land Act (Chapter 288, Laws of Kenya) (Repealed). 107 Section 115, Repealed Constitution of Kenya. 108 Section 115, Repealed Constitution of Kenya. 109 Section 69, Trust Land Act (Chapter 288, Laws of Kenya) (Repealed) 101

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County councils were, however, vested with the powers to set apart an area of trust land for a public purpose following certain procedures.110 Trust land could be set aside if it was for the use and occupation, (a) by a public body or authority for public purposes; or (b) for the purpose of the prospecting for or the extraction of minerals or mineral oils; or (c) by any person or persons for a purpose which in the opinion of that county council is likely to benefit the persons ordinarily resident in that area or any other area of Trust land vested in that county council either by reason of the use to which the area so set apart is to be put or by reason of the revenue to be derived from rent in respect thereof.111

The President was also vested with powers of setting apart trust land and the land was to subsequently be vested in the Government of Kenya.112 As noted in the subsequent sections, these powers vested in the county councils and the president were widely abused. Upon meeting the set criteria, any rights or other benefits of that land previously vested in a tribe, group, family or individual under African customary law were to be extinguished.113 Other laws that regulated dispositions of trust land, apart from the repealed Constitution and the repealed Trust Land Act, are the Land Consolidation Act,114 and Land Adjudication Act.115 The repealed Land (Group Representatives) Act116 governed the manner in which registered groups could own land. In spite of the existence of these laws, the management of community land faced numerous challenges in terms of the way the laws were applied. For example, the Land Consolidation Act had provisions dealing with the manner in which small landholders could consolidate and register those lands.117 It facilitated the exchange The procedure was outlined in Section 13 of the Trust Land Act where the county council was to notify the relevant Divisional Land Board and the residents of the land of its intention to set apart trust land. All interested parties could also make representations to the Divisional Land Board which was to make a recommendation. 111 Section 115, Repealed Constitution of Kenya. See also Section 13, Trust Land Act (Chapter 288, Laws of Kenya) (Repealed). 112 Section 118, Repealed Constitution of Kenya. The purposes for which trust land may be set apart under this Section are: the purposes of the Government of Kenya; the purposes of a body corporate established for public purposes by an Act of Parliament; the purposes of a company registered under the law relating to companies in which shares are held by or on behalf of the Government of Kenya; and the purpose of the prospecting for or the extraction of minerals or mineral oils. 113 Section 117(2), Repealed Constitution of Kenya. 114 Chapter 283, Laws of Kenya. 115 Chapter 284, Laws of Kenya. 116 Chapter 287, Laws of Kenya (Repealed). 117 See Section 21, Land Consolidation Act (Chapter 283, Laws of Kenya). 110

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of plots of land with similar acreage among persons in order to ensure consolidation of the various interests that had been adjudicated.118 However, in most cases small landholders ended up losing land since although they were compensated the system largely favoured those who held large tracts of land.119 Challenges were also witnessed with the now repealed Trust Land Act and Land (Group Representatives) Act. (a) Communal holding under the Land (Group Representative) Act The Land (Group Representatives) Act provided for the incorporation of representatives of groups who have been recorded as owners of land under the Land Adjudication Act.120 Once group representatives have been recorded as owners of land under the Land Adjudication Act, the repealed Land (Group Representatives) Act provides for the incorporation of such groups.121 A group is defined as a ‘tribe, clan, family or other group of persons, whose land under recognized customary law belongs communally to the persons who are for the time being the members of the group, together with any person of whose land the group is determined to be the owner.’122 Group representatives are to hold land on behalf of and collectively for members of the group, and are to fully and effectively consult group members in discharging their mandate.123 The Act formed the basis for establishing most of the group ranches in the country. It is noteworthy that the group ranch concept has not been adequate in protecting the land rights of pastoralist communities.124 Group representatives, who were entrusted with land management, dispossessed group members by disposing group land without consulting members who, in many cases, were unaware of these transactions.125 As a result there have been conflicts and bloodshed in many parts where this law was applicable. Dispossessions also arose where non-group members were registered as group members leading to violent conflicts during the allocation of shares.126 Abuse and disregard of Section 21(2), Land Consolidation Act (Chapter 283, Laws of Kenya). See Republic of Kenya, The final report of the truth, justice & reconciliation Commission of Kenya, vol IIB, 3 May 2013 Version, 209, 243. 120 Preamble, Land (Group Representatives) Act (Chapter 287, Laws of Kenya) (Repealed). 121 Part III, Land (Group Representatives) Act (Chapter 287, Laws of Kenya) (Repealed). 122 Section 2, Land (Group Representatives) Act (Chapter 287, Laws of Kenya) (Repealed). 123 Sections 3-8, Land (Group Representatives) Act (Chapter 287, Laws of Kenya) (Repealed). 124 See Republic of Kenya, Sessional paper no. 3 of 2009 on national land policy, para 65. 125 Republic of Kenya, Sessional paper no. 3 of 2009 on national land policy, para 65. 126 Republic of Kenya, Report of the Commission of inquiry into the land law system of Kenya on principles of a national land policy framework, constitutional position of land and new institutional frame118 119

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the principles and procedures established under the Land (Group Representatives) Act for its proper administration occasioned disputes resulting in delays in issuance of titles in areas where the law applied.127 Another factor leading to numerous conflicts in pastoral areas is the fact that the majority of these communities have not registered their holdings and have failed to keep records as required by the Act,128 because of illiteracy and lack of awareness of the legal requirements. Further, group representatives tasked with the administration of group ranches have in certain cases mortgaged the land without the knowledge of group members.129 Continued subdivision of these lands resulted in environmental degradation which results in the reduction of livestock and poverty.130 (b) Communal holding under the Trust Land Act Trust lands have also come under attack from the government and the local authorities entrusted with their management.131 Both the repealed Constitution and the Trust Land Act132 provided for the administration of trust land, as discussed above. Through their policies, previous governments have focused more on the protection of private property which has led to massive subdivision and individual titling of trust lands133 to bring them within the realm of private land which is accorded more protection. Reparcellation of trust land was in some cases sanctioned by the state, a practice common in the Daniel Moi and Jomo Kenyatta regimes where trust land was allocated to their friends and family members.134 The Commissioner of Lands perpetuated this abuse by alienating trust land in some instances against the provisions of sections 117 and 118 of the repealed Constitution and section 53 of the Trust Land Act.135 County councils were mandated with the task of setting apart an area of trust land for public use and occupation.136 The Trust Land Act granted the Commissioner of Lands powers to administer these work for land administration, 2002, 21. Republic of Kenya, Report of the Commission of inquiry into the land law system of Kenya, 21. Republic of Kenya, Report of the Commission of inquiry into the land law system of Kenya, 21. Republic of Kenya, Sessional paper no. 3 of 2009 on national land policy, para 65. Republic of Kenya, Report of the Commission of inquiry into the land law system of Kenya, 21. Republic of Kenya, Sessional paper no. 3 of 2009 on national land policy, para 65. Chapter 288, Laws of Kenya (Repealed). Republic of Kenya, Report of the Commission of inquiry into the land law system of Kenya, 17. Republic of Kenya, The final report of the truth, justice & reconciliation Commission of Kenya, vol IIB, 3 May 2013 Version, 243. 135 Republic of Kenya, Report of the Commission of inquiry into the land law system of Kenya, 23. 136 Section 117, Repealed Constitution of Kenya. 128 129 130 131 132 133 134 127

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lands as an agent of the council.137 Complaints could often arise ranging from instances of violation of the constitutional and statutory provisions relating to the setting apart of trust land; the Commissioner of Lands overstepping his mandate under the Trust Land Act; and abuse of position by civic leaders and council officials leading to the alienation of trust land contrary to the provisions of the Constitution and the Trust Land Act.138 Discontent thus arose among many persons in areas where such abuses were taking place. Government was often arbitrary in exercising its compulsory acquisition powers to dispossess communities of their lands. A case in point is the establishment of national conservancies and parks such as the Lake Bogoria Game Reserve which led to the eviction of the Endorois community, without taking into consideration their customary claims to the land.139 This saw the lodging of a claim by the community for the enforcement of their rights at the African Commission.140 The Kenyan government failed to implement the decision leading to the African Commission on Human and Peoples’ Rights to adopt a resolution during its 54th Ordinary Session on 5th November 2013, in Banjul, the Gambia, calling upon the Government to implement the Endorois Decision.141 In the Mau complex, also, the government adopted policies to ensure conservation of the forest which led to the forceful eviction of communities living in the forest like the Ogiek. The Ogiek lodged a complaint at the African Commission. The Truth, Justice and Reconciliation Commission (TJRC) Report also highlighted the case of Mosiro adjudication section in Kajiado District where the Minister for Land approved the application of the Land Adjudication Act to trust land. The process of adjudication commenced and, contrary to the provisions of the Land Adjudication Act, authorities failed to give the inhabitants of Mosiro Land Adjudication Section an opportunity to help in the demarcation of the boundaries. The 139 140

Section 53, Trust Land Act (Chapter 288, Laws of Kenya) (Repealed). Republic of Kenya, Report of the Commission of inquiry into the land law system of Kenya, 23. Section 117, Repealed Constitution of Kenya. See Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, ACmHPR Comm. 276/03. It was held, inter alia, that; i) The Endorois were an indigenous community hence fulfilling the creation of distinctiveness; ii) They fit the definition of ‘a people’ and this made them entitled to the benefits arising from the provisions of the African Charter; iii) The injustices visited upon them affected their rights to preserve their identity and these were violations affecting the rights of indigenous people. 141 African Commission on Human and People’s Rights, Resolution 257: Resolution Calling on the Republic of Kenya to Implement the Endorois Decision, 5 November 2013. 137 138

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authorities went ahead to demarcate the land to persons who were not residents of the area, including the daughters of the then Director of Land Adjudication and to at least 31 government officials.142 This eventually led to a court case in James Ndungu Wambua v Republic and others,143 where the respondents instituted legal proceedings claiming that they had not been afforded the opportunity to point out or demarcate the land they claimed and that some of the land was allocated to nonresidents. It was also brought to the attention of the Court of Appeal that the survey officer did not in fact go to the ground but surveyed the land from the map and created surplus plots which were allocated to non-residents, including government officials and their relatives and friends. These events signify the continuation of the colonial ideology in relation to trust land and their continued subjugation. With trust in the government eroded, government initiatives to manage and administer trust land may not achieve much to secure community land. In seeking to reform the land ownership regime in Kenya, the National Land Policy recommended the designation of land in the country into public, private and community.144 It also recommended the documentation and mapping of existing forms of communal tenure, whether customary or contemporary, rural or urban, in consultation with the groups affected, and incorporate them into broad principles that will facilitate the orderly evolution of community land law.145 Further, the National Land Policy recommends the repeal of the Trust Land Act and the Land (Group Representatives) Act and a definition of the term ‘community’, and the vesting of ownership of community land in the community.146 The 2010 Constitution recognises community land and confers land rights to communities identified on the basis of ethnicity, culture or community of interest.147 And the Community Land Act mentioned earlier has widened this bases even further.148

8.3.2 Public land Public land is a category of land that is very important to the state and the people. It has received much protection over the years both in law and in practice. Republic of Kenya, The final report of the truth, justice & reconciliation Commission of Kenya, vol IIB, 3 May 2013 Version, 290. 143 HC. Misc. Civil Application No. 312 of 1991, and Civil Appeal No. 85 of 1992. 144 Republic of Kenya, Sessional paper no. 3 of 2009 on national land policy, para 57. 145 Republic of Kenya, Sessional paper no. 3 of 2009 on national land policy, para 66. 146 Republic of Kenya, Sessional paper no. 3 of 2009 on national land policy, para 66. 147 Article 63(1), Constitution of Kenya (2010). 148 Section 2, Community Land Act (Act No. 27 of 2016). 142

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Although it is largely traceable to the introduction of colonial rule in Kenya, in traditional African society there were categories of land that were also considered public land.149 Since the establishment of colonial rule was largely predicated on the acquisition of territory, the introduction of laws to provide a basis for such acquisitions was necessary. Acquisition of land was both economically and politically significant. The Indian Lands Acquisition Act of 1894 was introduced in the East African Protectorate to convert land that had not been expropriated by the colonial government into ‘Crown Land’. Along the coastal strip, the colonial government signed agreements with the Sultan of Zanzibar effectively terminating the land rights of the indigenous Africans at the coast, especially the Mijikenda, Taita and Pokomo.150 With the imposition of colonial rule and British property laws, communities could no longer assert original title to land. It is the Commissioner who was vested with the right to grant interests upon the European settlers who were in need of land.151 The passing of the Foreign Jurisdictions Act of 1890 in England and its application to Kenya meant that the Crown could own land in the territory. According to the Act, Her Majesty had powers and jurisdiction over, ‘…waste and unoccupied land in the protectorate where there was no settled form of government and where land had not been appropriated either to the local sovereign or to individuals. Her Majesty may, if she pleased, declare them to be Crown Lands, or make grants of them to individuals in fee or for any term.’152

The powers to grant land rights to individuals were vested in the Commissioner of the Protectorate.153 Crown Lands were in the 1901 East African (Lands) Order-in-Council as: ‘...all public lands within the East Africa Protectorate which for the time being are subject to the control of His Majesty by virtue of any Treaty, Convention or Agreement or by virtue of His Majesty’s Protectorate and all lands which have been or may here-after be acquired by His Majesty under the Land Acquisition Act, 1894, or otherwise howsoever.’

For example, among the Agikuyu people, public land included public spaces (ihaaro) reserved for meetings and dances, public roads and paths (njera cia agenda) and sacred groves where national sacrifices were offered to Ngai. See Kenyatta J, Facing Mount Kenya: The tribal life of the Gikuyu, Vintage Books, New York, 1965, 36. 150 Republic of Kenya, The final report of the truth, justice & reconciliation Commission of Kenya, vol IIB, 3 May 2013 Version, 25. 151 Under Section 4, Crown Lands Ordinance (1915), the Commissioner was vested with the power to ‘sell’ freeholds in Crown Land to any purchaser not exceeding 1000 acres. 152 See FOCP 7403 No. 101 quoted in Okoth-Ogendo, Teaching manuals on the law of property. 153 These powers were outlined in detail in Crown Lands Ordinance (1902). 149

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In conferring land rights on the Crown, this proclamation disregarded any existing claims that native communities had. Colonial ideology informing the acquisition of land was that the concept of land ownership was alien to the Africans and hence they held no claims to land.154 This is evident from the decision by Judge Hamilton in Mulwa Gwanombi v Alidina Visram155 cited earlier in this chapter. Withal, the complete and total dispossession of natives was attained vide the Crown Lands Ordinance of 1915. The full effect and import of the Ordinance was explained by Barth CJ in Isaka Wainaina v Murito.156 According to the judge, the effect of the Ordinance was to take away all native rights in land reserved for their occupation, vest all land in the Crown and leave natives as ‘tenants at the will of the Crown’ in the land actually occupied.157 With this law, many Africans were evicted from their lands and driven to the reserves. The construction of the KenyaUganda railway by the British government also led to further dispossessions.158 A case in point is the evictions of the Sabaot community that took place in Trans Nzoia where land was set aside and local communities forced to vacate the land or become squatters on the land.159 Upon the attainment of Independence, there was continuity with the trends that had been adopted by the colonial government. Land that was previously held as Crown Land became ‘government land’ and was regulated by the repealed Government Lands Act.160 Essentially, all land reserved for use by the government and land within forest reserves in areas that were not trust lands were regarded as government land.161 Government land was vested in the President who had power to make grants and dispositions of estates, interests or rights in or over unalienated government land.162 Although the grants made by the President were to be made in

156 157 158 154 155

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162

Okoth-Ogendo, Tenants of the crown, 11. [1913] 5 KLR 141. 9 EALR 102 (1922-23). Okoth-Ogendo, Tenants of the crown, 54. Indian Land Acquisition Act (1894) had its application extended to cover the interior of the East African colony in 1897. Subsequently, Commissioner Hardinge proceeded to issue a proclamation appropriating ‘...for public purposes, subject to any rights of ownership, which may be proved to his satisfaction, all lands on the mainland beyond Mombasa situated within one mile on either side of the line of the Uganda Railway wherever finally constructed. See Republic of Kenya, The final report of the truth, justice & reconciliation Commission of Kenya, vol IIB, 3 May 2013 Version, 190. Chapter 280, Laws of Kenya (Repealed). Syagga P, ‘Public land, historical land injustices and the new Constitution’ Society for International Development Constitution Working Paper Series No. 9 (2011), 1. Section 3(a), Government Lands Act (Chapter 280, Laws of Kenya) (Repealed).

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accordance with the Act, there were no clear procedures in the Act how this was to be done. Consequently, the Commissioner (who exercised the said powers on behalf of the President) would often abuse the powers to allocate land, especially land located in urban areas.163 On numerous occasions, grants over land could be sold, sub-leased, or sub-divided without prior consent of the Commissioner of Lands.164 The office of the Commissioner of Land was tasked with the administration of activities relating to sale, letting, disposal and occupation of government land.165 The Commissioner could grant one-year licenses to persons to occupy vacant government land for temporary purposes.166 However, this power was often abused, and allocation to these persons could be done without following procedures set by the Commissioner and persons exercising these powers. When people were given land grants to establish industries many did not comply with the grant conditions but used the land instead as collateral to obtain credit from financial institutions.167 Poor enforcement of the provisions of the various laws dealing with government land also resulted in abuse and loss of public land. These laws include the Forest Act,168 the Wildlife (Conservation and Management) Act169 and the Local Government Act170 all of which regulated dealings in government land. Under the Forest Act, the Minister had the authority to make regulations on the use and occupation of forests including the use of these areas for activities like mining.171 On alienation of forest lands, the Act required the same to be preceded by notice to that effect in the Kenya Gazette.172 The Wildlife (Conservation and Management) Act provided for the creation of wildlife protected areas, game parks, game reserves and wildlife sanctuaries and other protected areas, all of which became part of government land and were to be governed in accordance with the Act.173 Republic of Kenya, The final report of the truth, justice & reconciliation Commission of Kenya, vol IIB, 3 May 2013 Version, 254. 164 Republic of Kenya, The final report of the truth, justice & reconciliation Commission of Kenya, vol IIB, 3 May 2013 Version, 255. 165 Section 5, Government Lands Act (Chapter 280, Laws of Kenya) (Repealed). 166 Section 40, Government Lands Act (Chapter 280, Laws of Kenya) (Repealed). 167 See Weru J, Wanyoike W and Di Giovanni A, ‘Confronting complexity: Using action-research to build voice, accountability, and justice in Nairobi’s Mukuru informal settlements’ http://elibrary.worldbank.org/doi/pdf/10.1596/978-1-4648-0378-9_ch10 on 21 October 2015. 168 Forests Act (Chapter 385, Laws of Kenya) (Repealed). 169 Chapter 376, Laws of Kenya (Repealed). 170 Chapter 265, Laws of Kenya (Repealed). 171 Section 42(1)(e), Forests Act (Chapter 385, Laws of Kenya) (Repealed). 172 Section 23, Forests Act (Chapter 385, Laws of Kenya) (Repealed). 173 See Sections 6 and 8, Wildlife (Conservation and Management) Act (Chapter 376, Laws of Kenya) (Repealed). 163

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Essentially, the introduction of government tenure had the effect of putting the state at the centre of land relations in Kenya. It also saw the state acquire vast tracts of land in the country. Additionally, there were numerous cases of illegal and irregular allocation of land mostly because of the wide powers vested in the President and the Commissioner of Lands to alienate public land and to grant title.174 Mismanagement of public land was also occasioned by legal overlaps and complex administrative mechanisms.175 With complex and bureaucratic administrative systems, administrators were able to abuse their powers, thus breeding corruption in the relevant agencies.176 For example, presidential powers to give grants of public land could often be abused by the President in granting land to award political loyalists, friends and companies held by his relatives.177 Some of the grants had conditions which were never fulfilled by the grantees. For example, within the industrial areas, the grants required allottees to construct light industries on the land but most of them did not put them up.178 In addition, public land allocated for such functions as building of schools and other public amenities could be illegally allocated to private persons leading to violent reactions from members of the public.179 In certain cases, public land was allocated to private individuals in total disregard of the public interest and environmental considerations. This led to the destruction of critical natural resources and spaces like wetlands.180 Communities and neighbourhoods have also lost land meant for use as playgrounds, recreational areas, hospitals, schools and other social amenities to the socalled ‘private developers.’181 Members of the public have protested against such Section 3, Government Lands Act (Chapter 280, Laws of Kenya) (Repealed). Accounts of irregular and illegal allocations of public land are recounted in Republic of Kenya, The final report of the truth, justice & reconciliation Commission of Kenya, vol IIB, 3 May 2013 Version, and Republic of Kenya, Report of the Commission of inquiry into the illegal/irregular allocation of public land. 175 Republic of Kenya, Sessional paper no. 3 of 2009 on national land policy, para 228. 176 Akech M, ‘Institutional Reforms in the new Constitution of Kenya’ International Centre for Transitional Justice (2010), 25. 177 Akech, ‘Institutional Reforms in the new Constitution of Kenya’, 27. 178 This occurrence can be seen in relation to the land in many parts of the industrial area in Nairobi where the land was left unoccupied and hence settled on by squatters. See also, Otieno S, ‘The new social contract: A look at property regimes in Kenya informal settlements’ 8 University of Nairobi Law Journal (2015), 157. 179 See, for example, demonstrations in the case of Lang’ata Primary School - Otiato Guguyu, ‘National Land Commission starts probe into Lang’ata Primary School land grab’ Daily Nation, 10 January 2015 http://www.nation.co.ke/news/-probe-into-Langata-Primary-school-land-grab/1056-258479814opnruz/index.html on 11 October 2016. 180 See generally, Odote C, ‘Regulating property rights to ensure sustainable management of wetlands in Kenya’ PhD Thesis, University of Nairobi, 2010. 181 See Otiato Guguyu, ‘National Land Commission starts probe into Lang’ata Primary School land grab’. 174

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actions182 necessitating land reforms to safeguard public land. The 2010 Constitution recognises public land as a category of land183 that is to be held in trust for the people of Kenya by the National Land Commission.184 Categories of public land are also listed in the Constitution.185 Most importantly, the National Land Commission is mandated with the task of preparing a database of all public land to ensure its effective management.186 Various legislations have also been enacted to govern public land in the country. Among the key laws applicable to public land are the Land Act,187 Land Registration Act,188 Land Control Act,189 National Land Commission Act,190 Environmental Management and Coordination Act,191 Forests Act192 and the Wildlife (Conservation and Management) Act 2013.193 The Environment and Land Court Act194 is tasked with the resolution of disputes relating to land in the country.

8.3.3 Private Land Formally, private land tenure traces its history to the introduction of colonial rule in Kenya and the subsequent introduction of English property regime in East Africa.195 However, before the arrival of the British settlers, Arab traders had visited the Kenyan coast, practised the slave trade and expropriated land for their individual use at the expense of customary tenure regimes.196 Amongst Africans also there are some who argue that personal property could be held as private property,

Republic of Kenya, Report of the Commission of inquiry into the illegal/irregular allocation of public land, 2004, 17. 183 Article 61, Constitution of Kenya (2010). 184 Articles 62(2) and 62(3), Constitution of Kenya (2010). 185 Article 62, Constitution of Kenya (2010). 186 Section 8(1)(a), Land Act (Act No. 6 of 2012). See amendment in Section 44, Land Laws (Amendment) Act (Act No. 28 of 2016). 187 Act No. 6 of 2012. 188 Act No. 3 of 2012. 189 Chapter 302, Laws of Kenya. 190 Act No. 5 of 2012. 191 Act No. 8 of 1999. 192 Chapter 385, Laws of Kenya (Repealed). 193 Chapter 376, Law of Kenya (Repealed). 194 Act No. 19 of 2011. 195 However, even in the pre-colonial period, it was indeed possible for individuals to own certain forms of property individually. Cattle, agricultural produce and other personal effects were not held communally but privately. See Kenyatta, Facing Mount Kenya. 196 Republic of Kenya, The final report of the truth, justice & reconciliation Commission of Kenya, vol IIB, 3 May 2013 Version, 228. 182

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explaining why property was used as a measure of wealth.197 Both the British and the Arab settlers viewed the property arrangements that existed among Africans to be weak. They viewed private property as the solution to the challenges apparently bedevilling communal ownership.198 In 1897, the East African Land Regulations were formulated by the colonial government giving the Commissioner of the Protectorate the powers to grant freeholds within the Sultan’s dominions.199 In 1908, with the passage of the Land Titles Ordinance,200 the Commissioner’s powers of acquisition of land were extended to the interior of the colony. Many Africans throughout the country were rendered landless and moved to the reserves. As early as 1902, the basis for individualisation of tenure had been laid through the enactment of the Registration of Documents Ordinance.201 Under this Ordinance, there were two forms of registration, that is, compulsory registration of documents and voluntary registration.202 European settlers clamoured for a system that was representative of the registration systems in England, and that vested one with individual property rights and guaranteed tenure security.203 The Registration of Titles Ordinance of 1921204 introduced the concept of registration of titles as opposed to registration of deeds. The registration of titles system under the Act was based on the Australian Torrens system. In this system, the title granted upon registration was jealously guarded and was not subject to challenge except on the grounds of fraud or misrepresentation which the proprietor was proved to be party to.205 Additionally, the state undertook to indemnify anyone who suffered loss due to an inaccuracy in the register.206 This See Chapter Three. See Swynnerton R, The Swynnerton report: A plan to intensify the development of African agriculture in Kenya, 1955. 199 Okoth-Ogendo, Tenants of the crown, 13. 200 No. 11 of 1908. This Ordinance had a number of implications on African communities living at the Kenyan Coast as it led to numerous cases of dispossession. 201 Chapter 161, 1948 Revised Edition of the Laws of Kenya. 202 Sections 4 and 5, Registration of Documents Ordinance (Chapter 161, 1948 Revised Edition of the Laws of Kenya). 203 Wanjala S., ‘Problems of land registration and titling in Kenya: Administrative and political pitfalls and their possible solutions’, Conference on Rural Land Tenure: Credit, Agricultural Investment and Farm Productivity in Sub-Saharan Africa, 1990. 204 Later became Registration of Titles Act (Chapter 281, Laws of Kenya) (Repealed). 205 See Sela Obiero v Orego Opiyo, High Court Civil Case No. 44 of 1970. 206 See Sections 23 and 24, Registration of Titles Ordinance (1921). Section 28, Registered Land Act (Chapter 300, Laws of Kenya) (Repealed), provided that: ‘The rights of a proprietor, whether acquired on first registration or whether acquired subsequently for valued consideration or by an order of Court, shall be rights not liable to be defeated except as provided in this Act, and shall be held by the propri197 198

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was a clear manifestation of the levels of protection that were accorded to private title by the state. Despite the progress made by the colonial government in individualising tenure within the white highlands, problems still existed within the African Reserves that were communally held.207 There were problems of overpopulation, frequent epidemics and general deterioration of land productivity.208 It was argued that the problems were as a result of the communal nature of landholding within the reserves.209 Therefore, it was suggested that there was need to restructure the property system within the reserves so as to intensify agricultural production. This was proposed in what is famously known as the ‘Swynnerton Plan.’210 Under the Plan it was argued, inter alia, that: ‘Sound agricultural development is dependent upon a system of land tenure which will make available to the African farmer a unit of land and a system of farming whose production will support his farming…He must be provided with security of tenure through indefeasible title as will encourage him to invest his labour and profits into the development of his farm and as will enable him to offer it as security against such financial credits as he may wish to secure…’

The landholding system amongst Africans was said to be defective on a number of grounds. First, it was argued, that fragmentation of landholding tended to minimise returns to labour and time.211 Second, it was said, that the communal nature of ownership was prone to resort to disputes owing to competing multiple interests.212 And lastly, the inheritance procedures in African land tenure were criticised for encouraging subdivisions of land into uneconomical units.213 Subsequently, the East African Royal Commission of 1953-55214 was set up to investigate alternative property regimes for Africans who lived in deplorable conditions in the reserves. The mandate of the Commission was to consider, inter alia, the economic development of land already in occupation, the adaptations and modification of customary tenure necessary for the full development of the land,

209 210 211 212 213 214 207 208

etor, together with all privileges and appurtenances belonging thereto, free from all interests and claims whatsoever.’ Okoth-Ogendo, Tenants of the crown, 70. Okoth-Ogendo, Tenants of the crown, 70. Okoth-Ogendo, Tenants of the crown, 70. Swynnerton, The Swynnerton report. Okoth-Ogendo, Tenants of the crown, 70. Okoth-Ogendo, Tenants of the crown, 70. See Clayton ES, Agricultural development in peasant economies, Macmillan, London, 1966, 12. Cmd. 9475.

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and the opening for cultivation and settlement of land not fully used.215 The Commission recommended the individualisation of land tenure in the areas occupied by Africans in order to make them enjoy the benefits of individualisation that were being enjoyed by Europeans. In its report, the Commission exalted the merits of individualisation thus: ‘…individual tenure has great advantages in giving to the individual a sense of security in possession and in enabling by purchase and sale of land, an adjustment to be made by the community from the present unsatisfactory fragmented usage to units of an economic size. The ability of individuals to buy and sell land by a process of custom, opens the door to that mobility and private initiative on which a great sector of economic progress tends to depend. The urban wage-earner can sell his homeland plot which is so often the uneconomic one, confident in the knowledge that he can buy another when occasion demands. The specialist farmer is relieved of the liability of providing a place for the subsistence of his clan relations. Moreover individual tenure should lead to the release and encouragement of new genius and to new experiment in finding the most productive use of land.’216

Individualisation was seen as a tool that could quell the demands for land among Africans. It would ensure that one’s access to land was dependent on their ability to buy land for their use. Therefore, credit was extended to farmers by the colonial government to enable them improve their agriculture.217 However, there was selective application of this policy as credit was not being extended to Africans.218 Individualisation therefore became a national policy and mechanisms were introduced to facilitate the individualisation of tenure. The process of individualisation was done in three stages: adjudication, consolidation and registration. Adjudication was meant to determine the extent of interests that an individual had. Consolidation ensured that where there were scattered interests, such was taken care of and they were brought under one realm. And lastly, registration was meant to bring the interests that one had under the common register that recorded all the interests one had.219 Individualisation was not without challenges.220 First, because a majority of Africans were unaware of the processes, dispossession was prevalent. Second, the 217 218 219 220 215 216

Ghai and McAuslan, Public law and political change in Kenya, 102. Cmnd. 9475, para. 77, 323. Okoth-Ogendo, Tenants of the crown, 71. Okoth-Ogendo, Tenants of the crown, 70. See Okoth-Ogendo, Tenants of the crown, 71-73. Okoth-Ogendo, Tenants of the crown, 76.

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process of adjudication was not effective as rights were granted over land that initially belonged to Africans and forcefully dispossessed by the Europeans. Third, the existence of multiple registers as a result of multiple legislations in place saw the rise of multiple claims to land by individuals over the same pieces of land.221 Private land regime still faces some of these challenges and has resulted in loss of faith in private landholding regimes and institutions tasked with land administration. At times, title documents are viewed as mere papers that cannot guarantee tenure security. Besides, private tenure is seen as a cause for the loss and destruction of community land. With individualisation of tenure, Kenyan society has witnessed massive conversions of community land to private ownership.222 The process of individualisation of tenure ended with the granting of a title to land. Title, once issued, was considered sacrosanct. A registered proprietor was conferred with exclusive title. Because title was sacrosanct, it was difficult to defeat title even where it was acquired illegally or irregularly.223 Therefore, land tenure reforms were largely aimed at meeting colonial political ends and entrenching capitalist relations in land ownership among Africans.224 Politically, the reforms undertaken ensured a smooth transition and continuity of colonial land policies by the emerging African comprador bourgeois class.225 The small landed gentry created upon the attainment of Independence also had political influence that they used to safeguard the interests of the Europeans who owned large tracts of land in the country.226 In essence, the ‘recognition of colonial land titles became the bedrock of transfer of political power.’227 The policy of individualisation continued into the post-colonial era. The Independence government adopted a policy of extending credit to Africans to enable them purchase land from the colonial settlers who were leaving the country, See Republic of Kenya, Sessional paper no. 3 of 2009 on national land policy, para 24(b). This is the fate that has befallen trust lands and group ranches as discussed earlier. Although, these forms of landholding were meant to secure community land, those charged with the responsibility of administering trust lands and group ranches disposed of the lands to individuals and corporations to the detriment of communities. 223 Kibwana K, ‘Efficacy of state intervention in curbing the ills of individualisation of land ownership in Kenya’ in Wanjala (ed), Essays on land law, 183. 224 Kibwana, ‘Efficacy of state intervention in curbing the ills of individualisation of land ownership in Kenya’, 183. 225 Republic of Kenya, The final report of the truth, justice & reconciliation Commission of Kenya, vol IIB, 3 May 2013 Version, 19. 226 Republic of Kenya, The final report of the truth, justice & reconciliation Commission of Kenya, vol IIB, 3 May 2013 Version, 19. 227 Mweseli T, ‘The centrality of land in Kenya: Historical background and legal perspective’ in Wanjala (ed), Essays on land law, 22. 221 222

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through the Million Acre Settlement Scheme.228 However, the scheme did not result in land redistribution since the main beneficiaries of the process were persons close to the presidency.229 As a result, the ‘willing-buyer willing-seller’ ideology adopted by the Independence government saw the amassing of large tracts of land by the ruling elite at the expense of the many Africans who deserved land. Private land ownership also became the cause of numerous conflicts among family members.230 Some family members who were registered as owners ended up disposing the land while the other members were unaware of the on goings.231 Dispossession arose from the fact that registration of interests on land by a person conferred absolute title which could not be challenged. Immediately after Independence, the now repealed Registered Land Act232 was adopted. Section 27 of the Act outlined the effect of registration of a person as proprietor of land. It provided thus: ‘…the registration of a person as the proprietor of land shall vest in that person the absolute ownership of land together with all rights and privileges or appurtenant thereto.’

The Act conferred on a registered proprietor a title that was indefeasible.233 A proprietor’s rights could not be defeated except as provided for in the Act.234 A registered title could only be defeated if it was obtained, made or omitted by fraud or mistake.235 However, this provision did not apply to a first title which was indefeasible. In Sela Obiero v Orego Opiyo it was held that a first registration defeated all subsisting claims, including customary claims.236 It was felt that if a first registration was allowed to be challenged this would necessitate the re-adjudication of land titles on a large scale, which would seriously undermine the work of several years of adjudication.237 The effect was that many people lost their lands which had Republic of Kenya, The final report of the truth, justice & reconciliation Commission of Kenya, vol IIB, 3 May 2013 Version, 213. 229 See Republic of Kenya, The final report of the truth, justice & reconciliation Commission of Kenya, vol IIB, 3 May 2013 Version, 208. 230 Republic of Kenya, The final report of the truth, justice & reconciliation Commission of Kenya, vol IIB, 3 May 2013 Version, 273. 231 Republic of Kenya, The final report of the truth, justice & reconciliation Commission of Kenya, vol IIB, 3 May 2013 Version, 273. 232 Chapter 300, Laws of Kenya. 233 Section 28, Registered Land Act (Chapter 300, Laws of Kenya) (Repealed), provided that the rights of the proprietor were not to be defeated except as provided for in the Act. 234 Section 28, Registered Land Act (Chapter 300, Laws of Kenya) (Repealed). 235 Section 143(1), Registered Land Act (Chapter 300, Laws of Kenya) (Repealed). 236 High Court Civil Case No 44 of 1970. 237 Coldham S, ‘The effect of registration of title upon customary land rights in Kenya’ 22 Journal of African Law (1978), 91-111. 228

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already been registered by relatives who were aware of the processes and who used the process to dispossess other family members. Private title to land could also be held jointly or in common.238 Tenancy in common has applied mainly where land is purchased by land-buying companies, co-operatives or societies and where individual members are entitled to ‘share certificates’ which indicate the value of their individual holdings.239 Common ownership has facilitated the acquisition of land by many persons, especially women, who have formed groups to facilitate access to land. Customary rights became one of the biggest casualties of the registration process. This is evident from the numerous decisions rendered by the courts. A notable example is the case of Esiroyo v Esiroyo240 where the High Court, inter alia, held that registration extinguished customary rights to land and vested absolute and indefeasible title in the registered owner. Also in Obiero v Opiyo241 the High Court held that the defendants had no rights over the land in question and, even if they did, such would have been extinguished upon registration under the Act. However, in Gatimu Kingura v Muya Gathangari242 the High Court held, inter alia, that registration could not extinguish subsisting customary rights. In order to control transactions in private land that formed part of agricultural land, the Land Control Act243 was enacted. This Act controls the fragmentation of agricultural land. As such, Land Control Boards were established to regulate the fragmentation of land. A land control board consent is needed before any transaction involving agricultural land.244 Under the Act, a person can make an application for consent in relation to a controlled transaction and the Land Control Board has the power to either give or refuse its consent to the controlled transaction.245 These boards have misused their discretionary power before leading to corruption to the extent that the government recently reconstituted them.246 The Lands Cabinet Section 101, 102. Joint tenancy arises where if one of the joint tenant dies then the entire estate will vest on the surviving joint tenant. Tenancy in common, however, suffices where each tenant in common owns his individual share of the property absolutely. 239 Section 101, Registered Land Act (Chapter 300, Laws of Kenya) (Repealed). See also, Gitau S, ‘Draft Report for UNCHS and Government of Kenya: Shelter upgrading project, population trends, land and shelter, socio cultural analysis’ (2001). 240 [1972] EA 388. 241 High Court Civil Case No. 44 of 1970. 242 [1976] K.L.R 265. 243 Chapter 302, Laws of Kenya. 244 Section 6, Land Control Act (Chapter 302, Laws of Kenya). 245 Section 8, Land Control Act (Chapter 302, Laws of Kenya). 246 Peter Leftie, ‘Govt dissolves Land Control Boards, fires members’ Daily Nation, 28 April 2016 238

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Secretary, Prof Jacob Kaimenyi, appointed the new members of the boards in the counties and stated that the members have to comply with rules and procedures including chapter six of the 2010 Constitution on leadership and integrity.247 It has been noted, however, that the processes involving the disposition of interests in private land have historically led to the dispossession of family members where, in certain cases, family land has been used to secure loans by the head of the family or some other persons without consent from the other family members.248 In this regard, certain groups, such as women, have been the subject of dispossessions, affecting them economically, since a majority of them, especially in rural areas, derive their livelihood from land. In a bid to redress the various challenges that riddled land management and administration in the country, reforms have been undertaken in the land sector culminating in the adoption of new land legislations to replace the old laws dealing with land.249 Importantly, the Constitution recognises that all land in the country belongs to the people of Kenya collectively as a nation, as communities and as individuals.250 Further, the Constitution has identified the manner in which land in the country is to be held and the principles that shall guide land policy.251 Further, in order to ensure effective management of land, the Constitution has established new institutions such as the National Land Commission to administer land on behalf of the people. The Constitution has further provided for three types of land ownership which are public, private and community.252 Mechanisms for the administration and management of these categories have also been provided. Tenure arrangements for private land that are recognised by law in Kenya are freehold and leasehold tenure. Freehold tenure grants a person interests over land for an unlimited period of time while in a leasehold, the period is usually specified. http://www.nation.co.ke/news/Govt-dissolves-Land-Control--Boards/1056-3180482-8fnmk1/index. html on 12 October 2016. 247 Boniface Gikandi, ‘Government appoints new land boards for 16 counties’ Standard, 11 July 2016 http://www.standardmedia.co.ke/article/2000208184/government-appoints-new-land-boards-for-16counties on 12 October 2016. 248 Republic of Kenya, The final report of the truth, justice & reconciliation Commission of Kenya, vol IIB, 3 May 2013 Version, 277. 249 Private land in Kenya is governed by laws including, Land Act (Act No. 6 of 2012), Land Registration Act (Act No. 3 of 2012), Land Control Act (Chapter 302, Laws of Kenya), National Land Commission Act (Act No. 5 of 2012), Environmental Management and Coordination Act (Act No. 8 of 1999) and Forest Conservation and Management Act (Act No. 34 of 2016). 250 Article 61, Constitution of Kenya (2010). 251 Article 60, Constitution of Kenya (2010). 252 Article 61, Constitution of Kenya (2010).

Chapter Nine

PROPERTY RIGHTS IN LAND

9.0 Introduction As pointed out in chapter one of this work, one school of thought views property as a creature of law.1 When property is viewed from a legal standpoint, one can see diverse schemes of ownership that are allowed and protected by law after land is distributed by the state. The discussion begins by outlining how the two principal legal systems in the world, the common law (which is used to describe the body of legal principles and concepts which have evolved over many centuries by judges in the English courts of law) and civil law/Roman law, treat property rights in land. The discussion of the two legal systems offers a basis for understanding the development of property law and property rights in land in Kenya. At common law, the doctrine of estate developed as the scheme of land ownership, while the concept of land as dominium, which denoted a nearly absolute property right, developed under Roman law. Merryman describes the civil law and common law as a law of ‘ownership’ and a law of ‘estate’ respectively.2 Ownership under civil law is viewed as a holistic dominion, exclusive, single, indivisible and different from lesser interests in property.3 Common law, on the other hand, looks at ownership as pluralistic and fragmented, encompassing the estate system and lesser property interests.4

1 2

3 4

Legal theorists on property presume the existence of an organised State. Merryman J, ‘Ownership and estate: Variations on a theme by Lawson’ 48 Tulane Law Review (1974), 918. Bolgar V, ‘Why no trusts in the civil law?’ 2 American Journal of Comparative Law (1953), 210. Chang Y and Smith H, ‘An economic analysis of civil versus Common law property’ 88 Notre Dame Law Review, 1 (2011), 2.

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Under Roman law, the owner had an absolute title, a right to use and dispose the subject of ownership, with only very few restrictions in the public interest. Encumbrances that could burden the dominium were kept to the minimum, and where they existed they were carefully distinguished from the dominium over the thing.5 This is not to say that under the Roman law, no other interests were recognised outside the dominium. Roman law allowed locatio conductio (hiring), similar to a lease for a term of years and the usufruct, which were interests subservient to the dominium. The subservient interests existed as mere rights issuing out of the land of another and not as separate estates of temporary ownership.6 Therefore, under Roman law a thing had one absolute owner, and any other claims that people may have had out of the thing, were personal claims (rights in personam) and not separate estates with real claims of ownership (rights in rem).7 The estate called fee simple absolute at common law, which grants the owner full quantum of rights, is the one that comes closest to the Roman concept of dominium, and to the lay concept of absolute ownership. However, modern land law has shifted from absolute ownership in land due to limitations placed by zoning, physical planning and environmental regulations and rights of adjoining land owners. The doctrine of estates that developed at common law is a child of feudal notions of tenure, where the King could grant land to powerful nobles in return for military service, and the noble would in turn allow a lesser noble to use it, and so on down the line. In these circumstances, it became difficult to speak of any one individual as owning the land. A tenurial relationship existed between the parties. But what was the relationship of the parties to the land? While the King could be regarded as the ultimate owner, what did the first noble, and subsequent nobles down the line, own? As already indicated, they had personal rights issuing out of the land. But with time, the land itself could be regained, if improperly taken, suggesting that each party had a real right in the land. This meant, therefore, that each person in the tenurial chain owned an estate in the land but not the land itself. The land and the estate are two separate things.8 An estate is purely conceptual despite its treatment in law as if it were a real thing with its own physical identity. The land is, of course, a physical thing that is permanent, immovable and which continues to exist regardless of the changing character of the estates that relate to it. The raison d’être for the doctrine of estates in real property is said to be the 7 8 5 6

Cribbet J and Johnson C, Principles of the law of property, 3 ed, Foundation Press, New York, 1989, 24. Cribbet and Johnson, Principles of the law of property, 24. Cribbet and Johnson, Principles of the law of property, 25. Cribbet and Johnson, Principles of the law of property, 25 – 26.

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permanency of land which creates the need to control its destiny far into the future, compared to personality, which in most cases is short-lived. The chapter begins by explaining the nature of estates in feudal England, how estates arose and evolved and how this informed the conception of property rights in land as currently viewed in Kenya. Subsequently, the chapter examines how property rights in land can vest in persons through adverse possession and some of the requirements that must be met before such rights are recognised. Lastly, the chapter examines forms of co-ownership and condominiums.

9.1 Property rights in land in feudal England The development of property law in England cannot be fully appreciated without looking at the Norman Conquest of 1066.9 After the conquest, William the Conqueror became the King of England after leading the invading Norman army to victory over the ruling Saxons at the Battle of Hastings. Because the Normans were few and occupied and ruled the whole of England, William’s reign faced threats of rebellion and risk of foreign invasion. He therefore created a complex military and governmental organisation based on principles of feudal tenure to deal with these challenges.10 The feudal system was introduced as a land redistribution programme under terms imposed by the crown, the king, who was deemed to ‘own’ all land in England. Saxon nobles who had opposed William forfeited their lands to him; and other landowners (more or less voluntarily) ceded ownership to him in a process known as commendation. Over time, the King transferred control over large tracts of land to approximately 1,500 supporters known as tenants-in-chief, in return for military service and other carefully-defined duties that were seen as a burden on the land itself.11 The relationship between the King and the tenants-in-chief was not a commercial, arms-length one, as known in modern sale of land, but a personal one. In a ceremony known as homage, the vassal knelt and swore personal allegiance to the lord, creating mutual obligations of loyalty and support. The King, as lord, granted land

See Moynihan CJ, Introduction to the law of real property: An historical background of the common law of real property and its modern application, West Publishing, Minnesota, 1962, 1-21. 10 Sprankling, Understanding property law, 2ed, Matthew Bender, New Jersey, 2007, 80, 90-91. 11 Sprankling, Understanding property law, 80-91. 9

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to his tenants-in-chief. As vassals, the tenants in chief were considered to ‘hold’ the land ‘of’ the King. They did not ‘own’ land in the modern sense, but rather had the right to use, possess and enjoy the land on the King’s behalf. Initially, the King could grant land for the life of the tenant-in-chief, and, if the latter died, the King would re-grant the land to the holder’s eldest son as a favour, but had no obligation to do so. This model between the King and the tenants-in-chief was the basic model for landholding throughout feudal England, and through a process called subinfeudation, the tenants-in-chief created similar arrangements with their own vassals, who in turn created similar relationships with other vassals, and so forth.12

(a)

Feudal tenures

With time, feudal England recognised two categories of landholdings: free tenures and unfree tenures. Free tenures were held only by the knights and other upper classes, essentially the nobles and gentry, whose social position and reputation were incompatible with physical labour. Unfree tenures were held by the peasants or villeins who actually worked on the land. The free tenure was the most important and the only one protected by the King’s courts, which developed the Common law of property. All of these tenures shared a common core: each tenant owed the lord both service and incidents. The obligation to provide services and incidents was attached to the land, thereby binding the tenant’s successors in perpetuity.13 (i) Services There were four free tenures in feudal England. The tenures characterised the type of service the tenant owed the lord. At the time, the four basic needs amongst the Normans were safety, subsistence, salvation and splendour, and each need was met by a different type of tenure. Knight service was the most important and required each tenant-in-chief to provide a specified number of fully equipped knights to the King for military service each year for 40 days. Socage tenure addressed the subsistence element. It required the tenant to periodically furnish his lord with a specified money payment (e.g. 20 pence), a fixed quantity of a particular agricultural product (e.g. 20 goats), or defined labour. Frankalmoign tenure involved a grant of land to a priest, church or other religious body, accompanied by the service

Sprankling, Understanding property law, 80-91. See also Cribbet and Johnson, Principles of the law of property, 28-39. 13 Cribbet and Johnson, Principles of the law of property, 34, 28-39. 12

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of praying for the grantor’s salvation. It is reported that almost half of England was once under this tenure category. Serjeanty tenure required the tenant to perform ceremonial or personal services to the King.14 (ii) Incidents Apart from services, a free tenant also owed the lord various obligations, together called the incidents of tenure, which also burdened the land. Four incidents existed during the tenant’s lifetime: (a) homage, the ceremony by which a tenant became a vassal; (b) fealty, the oath by which the tenant promised to be loyal to the lord; (c) aids, the tenant’s duty to provide financial support to the lord on specified occasions, e.g. ransoming the lord from imprisonment; and (d) forfeiture, the return of the land to the lord if the tenant was disloyal or failed to perform the required service.15 At the tenant’s death, four other incidents arose: escheat, relief, wardship and marriage. These incidents have become more important than the lifetime incidents.16 If a tenant died without heirs, the land would revert or escheat to the King, who would grant it afresh to another noble.17 In Kenya today, if a person dies intestate without heirs, his or her estate escheats to the State.18 Where a tenant was survived by two sons, initially the King would re-grant the land to whoever he pleased, but over time a custom arose, where the land would pass to the tenant’s eldest son subject to the latter paying to the King a fixed sum called a relief.19 Wardship and marriage applied only to knight service and serjeanty tenure.20 If a tenant died leaving a minor heir, the incident of wardship allowed the King (as overlord) to have possession of the tenant’s lands until the minor attained the age of 21. During that period, the King was entitled to rents and profits from the land. The incident of marriage allowed the lord to sell the right to marry the heir. The minor heir could refuse the marriage, but was then required to pay the lord a substantial fine. 21 16 17 18

Cribbet and Johnson, Principles of the law of property, 34. Cribbet and Johnson, Principles of the law of property, 34. Cribbet and Johnson, Principles of the law of property, 34. Cribbet and Johnson, Principles of the law of property, 34. Section 39(2), Law of Succession Act (Chapter 160, Laws of Kenya) and Article 62(1)(e), Constitution of Kenya, (2010). 19 The modern counterpart of this is the inheritance tax. 20 This type of tenure related to a category of services that could only be performed by a tenant to the King and not any other person. See Kimball EG, Serjeanty tenure in medieval England, Yale University Press, New Haven, 1936. 21 Sprankling, Understanding property law, 93. 14 15

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Feudal tenures faded and withered with time due to social and economic pressures, and were replaced by modern estates in land. This transformation was triggered by a decline in the value of feudal services. Warfare technology rendered knights obsolete, and knight services became irrelevant. In addition, inflation eroded the purchasing power of money, and the socage tenures which required fixed monetary payments lost most of their value. Because the value of land rose with inflation, the feudal incidents tied to land, escheat, wardship and marriage retained their value. As incidents became more valuable than services, subinfeudation increasingly undercut the rights of the lords, so that a tenant could use subinfeudation to avoid the valuable incidents of escheat, marriage and wardship.22 The lords responded by abolishing subinfeudation and enacting the Statute Quia Emptores in 1290. No new tenures could be created and existing tenures slowly disappeared with escheat or forfeiture, and, in exchange for banning subinfeudation, the lords allowed each free tenant to substitute another tenant in his stead without the lord’s approval. With the principle of free alienation, it became possible to transfer and create different forms of interests in land known as estates.23

9.2 Estates in land Traditionally, two major groupings of estates were recognised in law: the freehold estates (fee simple, fee simple conditional, fee tail and life estate) and the non-freehold estates (estate for years, periodic tenancy, tenancy at will and tenancy at sufferance).24 These were the only estates recognised at common law and came to be known as legal estates. The distinction between freehold and non-freehold estates was a consequence of feudalism. Freeholds were held by the nobles, gentlefolk and those with a niche on the feudal pyramid.25 They were also created through an elaborate ceremony performed on the land to be transferred. The holder of a freehold estate got a form of, an almost mystical possession, known as seisin.26 He benefited socially, politically and economically from feudalism and owed certain feudal duties (as discussed above) to a lord. Non-freehold estates were held by the powerless, common people who farmed on the land. Such an estate was created 24 25 26 22 23

Sprankling, Understanding property law, 84-90. Sprankling, Understanding property law, 84. Cribbet and Johnson, Principles of the law of property, 40. Cribbet and Johnson, Principles of the law of property, 40. Cribbet and Johnson, Principles of the law of property, 40.

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informally by agreement, and its holder did not have seisin and owed no feudal duties.27 Non-freehold estates did not exist within the feudal pyramid, and were historically not regarded part of real property. For example for year a tenant could not recover his leasehold by a real action but had to resort to a personal action for damages. This partly explains why even today freehold estates are viewed as forms of ‘owning’ land while non-freehold estates are viewed merely as forms of ‘leasing’ land.

9.2.1 Freehold estates Freehold estates last for a limited but indefinite period of time. They connote ownership of property by the estate holder. Freehold estates are a relic of feudalism and connote the largest quantum of land rights which the sovereign can grant to an individual.28 There are several subsets of freehold estates based on the concept of inheritance. The common type of freeholds of inheritance is the fee simple estate. It is the most complete form of ownership and connotes the right to use over the duration of the lives of the grantees and their heirs. It is also freely transferrable. The owner of such an estate is able to divide it up into lesser estates and sell or lease or charge against them. It terminates only if the tenant leaves no heir. However, there may be qualifications to such inheritance, for instance in the case of sale or disposition of the estate in a will by the owner to another party, in which case the estate passes to such party upon the original grantee’s death. A conditional fee simple connotes an estate that lasts forever as long as a condition stipulated by the deed’s grantor does not occur; otherwise, property reverts to the grantor or a remainder interest is passed on to a third party.29 Freeholds not of inheritance include life estates and estates per autre vie (for another life).30 The former contemplates the possibility of freehold estate that has fewer ownership rights than fee simple estate. It lasts for the life of the owner or another person. Property reverts to the grantor, heir or other designated person. The latter type subsists for the life of another person not the one in whom property rights are vested. Sprankling, Understanding property law, 105 – 106. Sprankling, Understanding property law, 93. See also Republic of Kenya, Report of the commission of inquiry into the land law system of Kenya on principles of a national land policy framework, constitutional position of land and new institutional framework for land administration, 2002, 50. 29 Sprankling, Understanding property law, 95. 30 Sprankling, Understanding property law, 93. 27 28

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In Kenya, the freehold estate is recognised and is also often described as absolute proprietorship. The 2010 Constitution recognises freehold estates in providing that private land can be held in the form of a freehold.31 However, noncitizens cannot own a freehold estate.32 Any freehold interest held by persons not citizens of Kenya reverts to the Republic of Kenya to be held on behalf of the people, and the non-citizens are given a leasehold interest of ninety-nine years.33 (a) Fee simple Fee simple falls into two categories: absolute and conditional.34 As indicated earlier, a fee simple absolute is the estate with the longest duration in Anglo-American law, since it is for an uncertain and indefinite duration. It is a form of freehold estate that is not restricted for the most part. However, the estate is subject to state regulations that are in the public interest.35 In common law, this estate was inheritable. The law prescribes the specific manner in which this estate is created. In conveying it, the words ‘and his heirs’ had to appear after the name of the person to whom it is being conveyed. Failure to include the words implied that only a life interest was conveyed.36 However, the requirement was subsequently abolished in England.37 Fee simple conditional was held and used subject to restrictions. It was further categorised into three other classes: fee simple determinable; fee simple subject to a condition subsequent; and fee simple subject to an executor limitation. A fee simple determinable automatically lapsed on the occurrence of an impermissible event. It was primarily intended to give the grantor the right to restrict the use of the property even where it has subsequently changed hands. The property could not be put to uses not permitted by the grantor. Therefore, the creation of this estate required the use of words such as ‘so long as…’, ‘until…’ or ‘during…’ or a provision to the effect that the property would ‘revert’ to the grantor on the occurrence of a stated event.38

33 34 35 36 37 38 31 32

Article 64, Constitution of Kenya (2010). Article 65, Constitution of Kenya (2010). Article 65 and Section 8 of the Sixth Schedule, Constitution of Kenya (2010). Sprankling, Understanding property law, 95. Article 40 and 66, Constitution of Kenya (2010). Sprankling, Understanding property law, 96. Emanuel SL, Emanuel law outlines: Property, 8 ed, Wolters Kluwer, New York, 2012, 52. Emanuel, Emanuel law outlines, 54.

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A fee simple subject to a condition subsequent entitled the grantor the right of re-entering the property and terminating it on the occurrence of an impermissible event. The property would remain with the grantee until the grantor affirmatively exercised the right. A creation of this estate would require the words such as ‘upon express condition that’, ‘upon condition that’ or ‘provided that.’ It was necessary to have a clause on re-entry failure to which the condition would simply be deemed as creating a covenant to be adhered to by the grantee.39 A fee simple subject to an executor limitation provided for the transfer of property to a person other than the grantor on the occurrence of an impermissible event. This was prohibited in early common law.40 (b) Fee tail A fee tail or an entailed estate was intended to ensure that the ownership of property remained within the lineage of the person holding it. It could not be conveyed outside the family. In creating it, words such as ‘to A and the heirs of his body’ were used. These words have been interpreted in some instances to confer a fee simple conditional in instances where A has children but fails to transfer it to them so that a fee simple absolute comes into effect. This meant that where A dies without conveying the property, his survivor will have a fee simple conditional.41 However, under English law, such bequests have come to be converted to fee simple absolute by statutes.42 (c) Life estate This form of estate lasts for the lifetime of a person. It may be based on the lifetime of the holder or that of a person other than the grantee.43 It was ordinarily created by the grantor but could also be a result of operation of law.44 The words common in their creation included ‘to B during his life’ or ‘to B for life’.45 It did not vest in the holder the right to dispose of the estate.46 At common law, a surviving spouse obtained the right of dower, in the case of a widow, and the right of curtsey, 41 42 43 44 45 46 39 40

Emanuel, Emanuel law outlines, 55. Emanuel, Emanuel law outlines, 55. Sprankling, Understanding property law, 59. Moynihan, Introduction to the law of real property, 41-42. Sprankling, Understanding property law, 100. Emanuel, Emanuel law outlines, 60. Sprankling, Understanding property law, 101. Moynihan, Introduction to the law of real property, 64.

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in the case of a widower.47 The right of dower arose in instances where the husband died intestate. The widow could not inherit her husband as all the property passed to the eldest son through the doctrine of primogeniture.48 The right of curtsey was established to provide for the widow and the younger children. She got a life estate in one-third of all land acquired during the marriage. The widower was entitled to a life estate in the freehold interest in real property held by the wife during the marriage. However, this right applied only where the issues of the marriage were born alive. If the couple was childless and the wife predeceased the husband, then the right of curtsey would not exist. The right also applied to all land as opposed to a third.49 The principle behind life estates is still in use today. In Kenya, for example, the Law of Succession Act50 provides that where an intestate has left one surviving spouse and a child or children, the surviving spouse is entitled to the personal and household property of the deceased absolutely (that is, the whole portion) and a life interest in the residue/remainder.51 In a case where there are no children, the surviving spouse gets the personal and household effects, the greater of the first ten thousand shillings out of the residue or twenty percent thereof and a life interest in the remainder. However, a life interest terminates in the case of a widow if she remarries.52

9.2.2 Non-freehold or leasehold estates A leasehold interest involves the derivation of rights from a superior title for a period of time that is certain or capable of being ascertained and the enjoyment of such rights in exchange for specific conditions including, but not limited to, the payment of rent.53 In this regard, the defining characteristic of leasehold estates is the fact that there is a ‘right to use and enjoy land exclusively as the owner for a stated period of time’.54 A lease is also understood as an instrument creating an Emanuel, Emanuel law outlines, 57-59. See Bertocchi G, ‘The law of primogeniture and the transition from landed aristocracy to industrial democracy’ 11 Journal of Economic Growth, 1 (2006), 43. 49 Bertocchi, ‘The law of primogeniture and the transition from landed aristocracy to industrial democracy’, 126. 50 Chapter 160, Laws of Kenya. 51 Section 35, Law of Succession Act (Chapter 160, Laws of Kenya). 52 Section 36, Law of Succession Act (Chapter 160, Laws of Kenya). 53 Republic of Kenya, Report of the commission of inquiry into the land law system of Kenya, 52. 54 Bruton v London and Quadrant Housing Trust [1999] UKHL 26. 47 48

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interest in land for a fixed period or certain duration, usually in consideration of the payment of rent.55 It is a contract between two parties for the grant of a time in land.56 Leases last for a certain duration thus differing from freehold estates whose duration is uncertain.57 The Constitution of Kenya recognises leaseholds as one of the ways of holding private land.58 In Kenya, non-citizens can only hold land on a leasehold basis and for a period not exceeding ninety-nine years.59 The Land Act regulates the creation of leasehold interests. It recognises the power of a private owner to lease land to any person60 and provides for implied covenants in lease contracts on the part of the lessor and the lessee.61 The Land Registration Act makes provisions for the registration of leases.62 Leasehold interests are classified as follows: a) Estate for years This is the most common type of leasehold estate. It specifies the exact duration of the tenancy and has an exact termination date.63 The term must be certain, that is, the beginning date and the ending date must be fixed or computable and no termination notice is necessary.64 However, the lessor may have to give an advance notice of expiration of the period to the lessee if there is a provision to that effect in the contract.65 b) Periodic tenancy A periodic tenancy is one that continues for successive periods until either party gives proper notice of its intent to terminate at the end of one or more subsequent periods. The notice given by the party must specify the date of termination.66 Ojienda T, Conveyancing principles and practice, LawAfrica, Nairobi, 2008, 131. Ojienda, Conveyancing principles and practice, 131. See Prudential Assurance Company Ltd v London Residuary Body [1992] AC 386. 57 Prudential Assurance Company Ltd v London Residuary Body [1992] AC 386. 58 Article 64, Constitution of Kenya (2010). 59 Article 65, Constitution of Kenya (2010). 60 Section 56(a), Land Act (Chapter 280, Laws of Kenya). 61 Sections 23 and 24, Land Act (Chapter 280, Laws of Kenya). 62 Section 54, Land Registration Act (Chapter 300, Laws of Kenya). 63 Prudential Assurance Company Ltd v London Residuary Body [1992] AC 386. 64 Emanuel, Emanuel law outlines, 161. 65 Petty v Faith Bible Christian Outreach Center Inc 584 NW 2d 303, 307 (Iowa 1998). 66 Emanuel, Emanuel law outlines, 163. 55 56

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This tenancy ordinarily occurs at the instance of the parties but may also be a result of the operation of the law where parties fail to fix the lease period but the rent is paid periodically.67 Where a tenant continues to occupy the leased property upon expiry of the lease with the consent of the lessor, then the lease is considered to be a periodic lease. It is, however, the duty of the lessee to prove that they continued occupying the property with the consent of the lessor, whether express or implied.68 This was reiterated in National Oil Corporation of Kenya v Robert Obegi Ongera & another.69 The Land Act70 states that where the term of the lease is not specified and no provision is made for the giving of notice to terminate the tenancy, such a lease is a periodic lease.71 The period contemplated is the one in which rent is payable.72 A periodic tenancy also arises where an owner permits the exclusive occupation of land or a part thereof by another without any agreement in writing.73 The tenancy may be terminated by either party by notice to the other and the period for such a notice may not be less than the period of the tenancy.74 c)

Short-term leases

A short-term lease is defined by the Land Act as one made for a term of two years or less without an option for renewal, is periodic in nature and has arisen due to the permission by the owner to another to occupy land without any agreement in writing.75 Such a lease is not registrable76 and may be made orally or in writing.77 d) Future leases Under the Land Act, a future lease is one made for a term to begin at a future date and such future date not being later than twenty-one years after the date of

Bruce J and Ely J, Cases and materials on the modern property law, 6 ed, Thomson West, Minnesota, 2007, 30. 68 Section 57 (1)(c)(i), Land Act (Chapter 280, Laws of Kenya). 69 [2014] eKLR. 70 Chapter 280, Laws of Kenya. 71 Section 57(1)(a), Land Act (Chapter 280, Laws of Kenya). 72 Section 57(3), Land Act (Chapter 280, Laws of Kenya). 73 Section 57(2), Land Act (Chapter 280, Laws of Kenya). See also Aroko v Ngotho & another [1991] KLR 178. 74 Section 57(4), Land Act (Chapter 280, Laws of Kenya). 75 Section 58(1), Land Act (Chapter 280, Laws of Kenya). 76 Section 58(3), Land Act (Chapter 280, Laws of Kenya). 77 Section 58(2), Land Act (Chapter 280, Laws of Kenya). 67

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execution of the lease.78 A future lease whose period exceeds five years must be registered failure to which it shall be of no effect.79 e) Tenancy at will This tenancy is created when a landlord consents to the possession of property by another person but without any agreement as to the payment of rent or duration of the tenancy.80 Consent from the landlord is an important element as was seen in Kasturi Limited v Nyeri Wholesalers Limited.81 The lessor has the right to evict the tenant from the premises at any time without notice. Such termination may be by implication, when the landlord does any act that is inconsistent with the continuance of the tenancy. The lessee also has a right to terminate the lease. It is terminable at the election of either party.82 f)

Tenancy at sufferance

A tenant at sufferance is one who remains at the leased property after termination of a lease. Therefore, a tenancy at sufferance comes into existence where a tenant holds possession of the property without the consent or knowledge of the landlord after the termination of a valid lease. The tenancy ends as soon as the lessor exercises the right to evict the lessee or where there is agreement as to another term.83 The lessor has the choice of treating the tenant as a trespasser or a new tenant absent a provision to the contrary.84

9.2.3 Covenants implied in leases The Land Act outlines certain covenants that are to be implied in a lease on the part of the lessor85 and the lessee.86 On the part of the lessor, it is implied that: (i) the lessee will have quiet possession and enjoy the land without the lessor’s interruption as long as the lessee continues to observe the covenants and conditions of the lease; 80 81 82 83 84 85 86 78 79

Section 61(1), Land Act (Chapter 280, Laws of Kenya). Section 61(2), Land Act (Chapter 280, Laws of Kenya). Emanuel, Emanuel law outlines, 163. Civil Appeal No. 248 of 2012. Bruce and Ely, Cases and materials on the modern property law, 31. Emanuel, Emanuel law outlines, 164. Bruce and Ely, Cases and materials on the modern property law, 31. Section 65, Land Act (Chapter 280, Laws of Kenya). Section 66, Land Act (Chapter 280, Laws of Kenya).

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(ii) the lessor shall not use adjoining land to render the leased land unfit for the purpose for which it is leased;87 (iii) the lessor is to keep the common areas in a proper state of repair; (iv) the lessor is also to pay all outgoings in respect of the land unless otherwise specified in the lease.88 (v) The lessor is empowered to enter the leased land or premises, at a reasonable time, for inspection or making repairs. (vi) The lessor can also issue a notice of termination where any rent remains unpaid for a month after the due date or where the lessee has failed to observe the lease conditions for a period of one month.89

Regarding the lessee, it is implied that: (i) the lessee shall pay rent as specified; (ii) the lessee shall use the land sustainably and in line with the terms of the lease; (iii) the lessee shall keep the leased buildings in a reasonable state of affairs; (iv) the lessee shall return the land and buildings in the same condition as they were when the term of the lease began. However, the lessee is not bound to repair damage or restore the land and buildings to the same conditions they were at the beginning of the lease if the damage or deterioration of the condition is caused by: reasonable wear and tear; fire, flood or explosion or other accident not attributable to the negligence of the lessee, or the lessee’s invitees or employees; civil commotion; or lightning, storm, earthquake, volcanic activity or other natural disaster. (v) They shall keep all boundary marks in repair.90

Where a covenant requires the lessee to obtain the consent of the lessor before engaging in any act, the lessor is required not to unreasonably withhold consent to the taking of such an action.91 A lessee may apply for the lessor’s consent in order to engage in actions including: transferring or assigning of the lease; subleasing; parting with possession of the leased land or buildings; changing the use of the land or buildings from a use which is permitted under the lease; extending, improving, adding on to or in any other way developing any building beyond what is permitted in the lease; or creating a charge over the lease.92 This was well espoused by the English Court of Appeal in Dudley and District Banking Company v Ross [1888] 38 Ch D 295, 313 where it stated that ‘…a grantor having given a thing with one hand is not to take away the means of enjoying with the other’. 88 Section 65(1), Land Act (Chapter 280, Laws of Kenya). 89 Section 65(2), Land Act (Chapter 280, Laws of Kenya). 90 Section 66(1), Land Act (Chapter 280, Laws of Kenya). 91 Section 67(1), Land Act (Chapter 280, Laws of Kenya). 92 Section 67(2), Land Act (Chapter 280, Laws of Kenya). Where the subject of a lease is land considered

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The lessor may exercise the right to forfeit the lease where the lessee breaches or fails to perform any agreement or condition, expressed or implied in the lease or is adjudicated bankrupt or in the case of a company, liquidated.93 Acceptance of rent by the lessor after service of notice to forfeit does not waive the lessor’s right of forfeiture unless the lessor has shown, by any other positive act, an intention to treat the lease as subsisting.94 The right of forfeiture may not be exercised before a notice of not less than thirty days has been served on the lessee specifying the breach complained of, and requiring the lessee to remedy within a reasonable time as stipulated in the notice where the breach in question is capable of remedy and in any case other than non-payment, requiring the lessee to make compensation. Where the lessee fails to remedy the breach within thirty days thereafter and also fails to make reasonable compensation in money, the right of forfeiture may be exercised.95 A forfeiture of a lease determines every sublease and every other interest relating to the lease in the register. However, a sublease may not be determined where the forfeiture is set aside by the court on the basis that it was acquired by the lessor in fraud of the sublease or where the court grants a relief against forfeiture.96 A lessee who is unlawfully evicted from the whole or part of the leased land or buildings in violation of the terms is immediately relieved of all obligations to pay rent or any other money due under the lease or to perform any covenants or conditions in respect of the lease.97 A lessee is deemed to have been evicted from the whole or part of the leased land or building if the lessee is unable to obtain possession on commencement of the lease as a result of any action or non-action of the lessor or their agent contrary to the express or implied terms of the lease. A lessee aggrieved due to such may commence an action against the lessor.98 Leaseholds are considered to be flexible devices for a number of reasons. The term of the lease is usually variable and may be defined in terms of specific developments planned by the prospective leaseholder. The supervision of land use

96 97 94 95

to be agricultural land then consent from the Land Control Board is required. However, where the Government is a party to such transactions then consent from the Board is not required as per Section 6(3), Land Control Act (Chapter 302, Laws of Kenya), and this was subsequently affirmed in Theresa Constabir v Jeremiah M Maroro & 3 others [2013] eKLR. Section 73(1), Land Act (Chapter 280, Laws of Kenya). See also AW Rogan-Kamper v Robert Grosvenor [1977] KLR 123. Section 73(3), Land Act (Chapter 280, Laws of Kenya). Section 75, Land Act (Chapter 280, Laws of Kenya). Section 74, Land Act (Chapter 280, Laws of Kenya). Section 77(1), Land Act (Chapter 280, Laws of Kenya). See holding in Said Majid Said v James Titus Kisia [2015] eKLR. Section 77(2), Land Act (Chapter 280, Laws of Kenya).

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which lies mainly in the domain of contract is a matter of fulfilment of reciprocal rights and obligations agreed by the parties. The leasehold permits access to land by a much larger range of users and use categories than either freehold or the absolute proprietorship. Leaseholds also facilitate a wide range of economic enterprises ranging from commercial, industrial, residential to cultural and social activities.99 Disputes have arisen, however, in numerous instances with regard to leases, for example due to a disruptive action by the lessee or the lessor. Courts have in many such cases held for an injured party who innocently acted in good faith notwithstanding the fact that property rights may not necessarily vest in them. In Gusii Mwalimu Investment Company Limited and two others v Mwalimu Hotel Kisii Limited,100 a landlord evicted a tenant without a hearing and proceeded to install a new tenant. Upon instituting proceedings in the High Court, the Court’s decision was in favour of the injured tenant and this was confirmed by the Court of Appeal. Challenges may also arise where there is a leasehold claim by a person and where another party is claiming customary rights over the property. Where such claims exist, Courts seem to take the registered leaseholder as the absolute and indefeasible owner of the land until the case is finally determined and evidence adduced that defeats the title.101 9.3 Charges Charges are interests in land that operate as a form of security for the payment of a debt or performance of an obligation and usually entered into in favour of financial institutions. They are discussed in detail in chapter eleven. 9.4 Derivative or analogous rights These are rights or interests in land that do not entitle the holder to the possession of the land. They are non-possessory rights.102 The holder may be permitted to take something from the land, as in the case of a license, or to use the land for a specific purpose, as in the case of an easement. They are regulated under Parts X of the Land Act 2012 and the Land Registration Act 2012 which contain provisions on their creation, enjoyment and cancellation. Republic of Kenya, Report of the commission of inquiry into the land law system of Kenya, 52. [1996] eKLR. 101 See Macedonia Resort Club Ltd v Silvans Awili [2016] eKLR. 102 Bruce and Ely, Cases and materials on the modern property law, 294. 99

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(a) Easements An easement is a property right by a person or group of persons to use the land of another for a special purpose not inconsistent with the general property right of the owner of the land.103 It is also defined as an interest in land in the possession of another. It has the following features: (i)

it entitles the owner of the interest to a limited use or enjoyment of the land in which the interest exists;

(ii) it entitles him to protection as against third persons from interference in such use or enjoyment; (iii) it is not subject to the will of the possessor of the land; (iv) it is not a normal incident of the possession of any land possessed by the owner of the interest; and, (v) it is capable of creation by conveyance.104

Examples of easements include rights of way across another’s land, public utility and telephone lines and pipelines, wayleaves and flooding privileges. Easements are usually described in relation to dominant and servient tenements or tracts of land. The dominant land is the land benefited by the easement, while the servient tenement is the one burdened by the easement.105 For example, if X owns a farm next to Y and gets the right to cross Y’s land to access water from the nearby river, X’s land is the dominant tenement as it benefits by the means of access and Y’s land is the servient tenement as it is burdened by having to allow X to cross his land. Easements can be classified into various categories. An affirmative easement allows the holder to do certain acts on another’s land while a negative easement allows the holder to prevent the owner from doing acts on his own land.106 An express easement is one created by direct action of the parties while an implied easement is created by operation of law from the peculiar facts and circumstances of the case. An appurtenant easement benefits the easement holder in using the dominant land.107 Traditionally, in English law an easement could exist only as appurtenant to other land owned by the holder of the easement while profits could be owned separately from any other land, i.e. in gross.108 This distinction has since lost its practical 105 106

Cribbet and Johnson, Principles of the law of property, 368. Cribbet and Johnson, Principles of the law of property, 368. Section 136(1), Land Act (Chapter 280, Laws of Kenya). Sprankling, Understanding property law, 510. See also Section 138(1)(a) and (b), Land Act (Chapter 280, Laws of Kenya). 107 Sprankling, Understanding property law, 510. 108 Cribbet and Johnson, Principles of the law of property, 368. 103 104

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significance as easements can also exist in gross. If an easement does not attach to a dominant land, it is in gross e.g. telephone lines. An easement can be created by express act of the parties, by implication or prescription. Generally, the formal requirements for the creation of an easement inter vivos are similar to those involved in transferring an estate in land of like duration. Easements by implication can be of three types: quasi-easements; easements of ingress and egress implied from necessity; and those implied from representations relied upon by purchasers of land. Quasi-easements arise where the dominant and the servient lands are owned by the same person. It may be converted to a true easement where the owner sells one of the pieces of land. Easements of ingress and egress are implied by necessity.109 The intention of the parties is presumed that in the public interest the full utilisation of land requires some sort of access to isolated tracts of land. If an easement is implied out of necessity, it continues only so long as the necessity exists. Easements implied from representations relied upon by purchasers of land arise where vendors make representations that purchasers will obtain certain interests in nearby lands. Easements created by prescription or adverse user are based on the view that if adverse possession can create an interest in another’s land after the statutory period, it follows that adverse use of another’s land, e.g. a right of way, should create an easement.110 An easement may expire by its own terms. Just like any other interest in land, it may be created for the life of the holder only or it may be designed for a particular purpose and end when the purpose is accomplished. An easement implied from necessity will cease when the necessity ceases. Generally, most easements will have a potentially unlimited duration and some specific action is required to terminate them. However, where the dominant and servient estates vest in a single owner, the easement merges into the fee. Termination can also be by estoppel, abandonment and prescription. Destruction of the servient estate and failure to record an express easement may also lead to termination of an easement.111 Under the Land Act, an easement is capable of creating any of the following rights: to do something over, under or upon the servient land; prohibiting the doing of something; requiring the holder of the servient land to do something; and Sprankling, Understanding property law, 515 – 517. See Sprankling, Understanding property law, 515 – 517; see also Cribbet and Johnson, Principles of the law of property, 371-374. 111 Cribbet and Johnson, Principles of the law of property, 378-379. 109 110

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to graze in the servient land.112 However, the right to remove anything from or to exclusively possess the servient land does not amount to an easement.113 The Land Registration Act provides for the creation of easements; it also provides that easements can be created through execution of an instrument in the prescribed form.114 Such instruments are effective once registered as was held in Kenya Electricity Transmission Co Ltd v Kedong Ranch Ltd & 3 others,115 where the plaintiff was claiming to have an easement pursuant to three agreements with only one agreement executed and the other two not executed. The application was dismissed on the basis that no easement had been registered. (b) Profit à prendre A profit à prendre is an ‘easement plus.’ It is a right to the use of another’s land by removing a portion of the soil or its products.116 Traditionally, profit à prendre developed with the old English seaweed cases, where one could get the right to go to the land of a seashore owner to collect seaweed for use as fertiliser on one’s land. The right has also been used in collecting sand, gravel, minerals and timber on another’s land today. (c) Licenses A license is a right derived from a permission to use the licensor’s land. It protects one from being a trespasser on another’s property as long as they have the requisite authority to perform certain actions on the land. If A grants B permission to farm on A’s land, B won’t be considered a trespasser on A’s land. The licensor may revoke the license at will, which is thus regarded as the least important of the rights in the land of another.117 However, there are instances in which the licensor may not reserve the right to revoke the license. For example, where the licensee holds a right in personal property located within the licensor’s land. The license is in such an instance said to be coupled with an interest. The licensor may only revoke it as long as it does not interfere with the exercise of the licensee’s rights in the personal property.118 114 115 116 117 118 112 113

Section 138(1), Land Act (Chapter 280, Laws of Kenya). Section 138, Land Act (Chapter 280, Laws of Kenya). Section 98(1), Land Registration Act (Chapter 300, Laws of Kenya). [2015] eKLR. Emanuel, Emanuel law outlines, 235. City of Owensboro v Cumberland Telephone Co (1913) 230 US 58, 64, 33 Sup Ct 988, 990. Emanuel, Emanuel law outlines, 256.

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Some say that a license is not an interest in land at all as it merely shields one from being a trespasser.119 As such, a licensee operating on the land of another is not entitled to legal protection from interference by third parties; this view is incorrect since even a trespasser is owed a ‘duty of common humanity’ by the landowner to ensure that they he is not injured once it is known he is on the premises.120 A license is distinguishable from an easement in that a license can be terminated at the will of the licensor while an easement cannot. In addition, failure to comply with the critical requirements for creating easements may result in a license.121

9.5 Adverse possession Adverse possession is ‘possession inconsistent with the title of the owner.’122 There must be a denial of the owner’s title in one form or another for possession to be adverse. It is referred to as “the use or enjoyment of real property with a claim of right when that use or enjoyment is continuous, exclusive, hostile, open and notorious.”123 The doctrine comes into application where one enters another’s land without permission, and possesses it for a prescribed period of time, after which they gain title to the land. The possession needs to be: open, notorious and visible; exclusive; actual; and continuous.124 The doctrine of adverse possession is anchored in statute law. Section 7 of the Limitation of Actions Act125 provides that; An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.

In Brief, ‘Licenses in property law’ http://www.inbrief.co.uk/property-law/proprietary-licences/ on 5 September 2016. 120 British Railways Board v Herrington [1972] AC 877. See also Hedley S, Tort, Oxford University Press, Oxford, 2011, 108. 121 Cribbet and Johnson, Principles of the law of property, 380. 122 Gideon Munyao Mutiso v Sarah Wanjiku Mutiso [1984] eKLR 123 Garner B, Black’s law dictionary, 8 ed, West Group, Minnesota, 2004, 59. In Omukaisi Abulitsa v Albert Abulista, Kakamega HCCC No. 86 of 2005(UR), the High Court stated, inter alia, that: ‘…where a person trespasses on the land of another with the knowledge of the latter who does not assert his right to the title to the land by evicting the trespasser or by suing him or her in court for eviction or ejectment but instead lets the trespasser openly occupy the land for a continuous and uninterrupted period of not less than twelve years, the trespasser is entitled to apply under section 38 (supra) to be registered as the proprietor of the land. This is what the doctrine of adverse possession means.’ 124 Emanuel, Emanuel law outlines, 28. 125 Chapter 22, Laws of Kenya. 119

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Adverse possession is underpinned by the theory of possession as the origin of property rights. In the English case of Wallis’s Cayton Bay Holiday Camp Ltd v Shell-mex and BP Ltd126 it was opined that for possession to give rise to title, it must be adverse. There is adverse possession where the true owner exhibits some discontinued possession or the current owner has done some adverse acts which takes possession away from the true owner. Adverse possession is also supported by equitable principles, notably the equitable maxim, ‘delay defeats equity’, or ‘equity aids the vigilant not the indolent’ as established in Lloyd v Butler,127 where it was stated that those who sleep on their rights should not be assisted by courts in recovering their property. Therefore, if an individual ignores his rights upon a certain piece of land for a period of not less than 12 years, he will not be allowed to assert his rights on the property in Kenya. Property law and the limitation of actions law seek to extinguish the title which an owner has failed to protect within the limitation period and instead indirectly permits third parties to set up new titles against the owner. After the expiration of a certain period, the third party may apply to the High Court to be registered as the proprietor of the land.128 The usual way of acquiring a freehold interest in land is by effective transfer from the present freeholder. How is it possible for a person to acquire an interest in land merely by taking possession of it for a sufficient period of time? Although it might appear to be against public policy to allow the acquisition of interests in land merely by taking possession, as this might encourage squatting, the law regards the owner of such land as being under a duty to protect his property against encroachment by third parties. If the occupant does not take advantage of the remedies available to them, the law supposes that they do not particularly value the land that is adversely possessed.129 The inherent limitations in the operation of the principles of adverse possession mean that only in extreme cases will squatters qualify to oust the rights of landowners. Adverse possession exists to cure potential or actual defects in real estate titles by putting a statute of limitations on possible litigation over ownership and possession. The conditions necessary for one to gain title through adverse possession were outlined by the Environment and Land Court in Virginia Wanjiku Mwangi v David 128 129 126 127

[1974] 3 All ER 575. [1949] 2 All ER 226. See Sprankling, Understanding property law, 446. Lloyd v Butler [1949] 2 All ER 226.

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Mwangi Jotham Kamau.130 The Court stated that the following five minimum basic conditions must be met in order to perfect the title of the adverse party: a) Open and notorious use of the property that,

In Virginia Wanjiku Mwangi v David Mwangi Jotham Kamau, the Court noted The occupation and use of the property by the adverse party must be of such character that would give notice to a reasonable person that someone would claim. If legal owner has knowledge, this element is met. This condition is further met by fencing, opening or closing gates or an entry to the property, posted signs, crops, buildings, or animals that a diligent owner could be expected to know about.131

This means that the use of the property by the adverse party must be visible and apparent as to give notice to the legal owner that someone may assert a claim to their land. b) Continuous use of the property The adverse party must possess the land for the entire period required under the Act for the interest to be gained. The adverse party must possess the property continuously for the entire limitation period, and use it as a true owner would for that time. Continuous use focuses on the adverse possessor’s time on the land and not how long the true owner has been dispossessed of it.132 It is not enough for the adverse party to possess the land occasionally. Therefore, Occasional activity on the land with long gaps in activity fail the test of continuous possession. Incidences such as merely cutting timber at intervals, when not accompanied by other actions that demonstrate actual and continuous possession, fails to demonstrate continuous possession.133

Where the possession by the adverse party is interrupted by the legal owner, the time already spent does not count in arriving at the required period of time: “If the true owner ejects the adverse party from the land, verbally or through legal action, and after some time the adverse party returns and dispossesses him again, then the statute of limitation starts over from the time of the adverse party’s return. He [2013] eKLR. This case has subsequently been affirmed in Koinange Investments and Development Company Limited v Ian Kahiu Ngethe & 3 Others [2015] eKLR. 131 [2013] eKLR. 132 Virginia Wanjiku Mwangi v David Mwangi Jotham Kamau [2013] eKLR. 133 Virginia Wanjiku Mwangi v David Mwangi Jotham Kamau [2013] eKLR. 130

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cannot count the time between his ejection by the true property owner and the date on which he returned.”134 Possession must be continued, and uninterrupted or else the claimant will be unable to defeat the paper title. In the case of a licence or intended sale, continued possession, if not illegal, becomes adverse from the time the transaction becomes void.135 In Joseph Gachumi Kiritu v Lawrence Munyambu Kabura,136 the Court of Appeal stated that: Time which has begun to run under the Act is stopped, either when the owner asserts his right or when his right is admitted by the adverse possessor. Assertion of right occurs when the owner takes legal proceedings or makes an effective entry into the land...’ I agree that the mere filing of a suit for recovery of possession may not disrupt the possession of the adverse possessor, it being a physical thing, but as regards the stopping of time for the purposes of the Act, I would fully subscribe to the position expounded by Potter JA in Githu v Ndeete, and which has solid backing in the passage I have read from Cheshire. It is the sensible step to take instead of going into the disputed land armed to dislodge the adverse possessor, an act which can only result in a serious breach of the peace or even loss of life....In my judgment, therefore, time stopped to run against the appellant when he filed the Kiambu case in 1984…. On the respondent’s own testimony before the learned Judge, he went into possession in 1974 and since the appellant filed his possession suit in 1984, time ceased to run against him because by taking that step the appellant, as owner, asserted his right. So therefore when the respondent took out his O.S. in July 1988, he had not been in continuous and uninterrupted possession for 12 years for the purposes of section 38 of the Act, and he was not therefore entitled to judgment.

It is also important to note that if the adverse possessor is removed from the land by another adverse possessor, the adverse possession is not interfered with and the subsequent adverse possessor can claim the period of the initial adverse possessor: Where the period of 12 years is not continuous or is interrupted, the period of adverse possession is broken and must start all over again. But where one trespasser removes another trespasser who is in adverse possession to the owner and continues to occupy the land, the period of adverse possession is not broken and the second trespasser is entitled to combine the period of trespass of the first trespasser to his own.137

136 137 134 135

Virginia Wanjiku Mwangi v David Mwangi Jotham Kamau [2013] eKLR. Joseph Mutafari Situma v Nicholas Makhanu Cherongo [2007] eKLR. [1996] eKLR. Omukaisi Abulitsa v Albert Abulista, Kakamega HCCC No. 86 of 2005(UR).

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In Kenya, the required period is 12 years according to the Limitation of Actions Act.138 In England, periods of limitations were initially “…fixed from time to time in relation to particular events or dates of public knowledge, such as the death of Henry I, or the last voyage of Henry II into Normandy.”139 Later, the enactment of the Statute of Westminster I changed this practice140 by prohibiting the disputing of vested rights in 1189.141 The present concept of limitation of actions using specific periods was introduced in 1540 where the period set was 60 years or less in the case of claims relating to real property.142 The Real Property Limitation Act of 1833143 set the period at 20 years which was later reduced to 12 through the Real Property Limitation Act of 1874.144 This could have informed the Kenyan Parliament in setting the statutory period at 20 years in the Limitation of Actions Act.145 c)

Exclusive use of the property

The adverse party must use the land in question to the exclusion of the legal owner.146 Thus, “If, for example, the adverse party builds a barn on the owner’s property, and the owner then uses the barn, the adverse party cannot claim exclusive use.”147 In Johnson Kinyua v Simon Gitura Rumuri148 where the adverse possessor was in exclusive possession of 8 acres only out of the 12 acres, the Court of Appeal affirmed that “a claimant would not be entitled to more than the parcel he had exclusive control of and in this case, it is eight acres only.” However, this requirement does not apply to adverse possessors using the property together. There may be more than one adverse possessor, taking as tenants (i.e. owners) in common, so long as the other elements are met. Such can arise in the case of squatters and slum dwellers.

Section 7, Limitation of Actions Act (Chapter 22, Laws of Kenya). Harpum C, Bridge S and Dixon M, Megarry & Wade on the law of real property, 8 ed, Sweet & Maxwell, London, 2012, 1458. 140 1275. 141 Harpum, Bridge and Dixon, Megarry & Wade on the law of real property, 1458. 142 Harpum, Bridge and Dixon, Megarry & Wade on the law of real property, 1458. 143 Section 2, Real Property Limitation Act (1833). 144 Section 1, Real Property Limitation Act (1874). 145 Chapter 22, Laws of Kenya. 146 Sprankling, Understanding property law, 439. 147 Virginia Wanjiku Mwangi v David Mwangi Jotham Kamau [2013] eKLR. 148 Nyeri Civil Appeal Number 265 of 2005. 138 139

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d) Actual possession of the property This requirement is met if the adverse party physically uses the land as a property owner would, depending on the type, location and uses of the property in question. The Court was emphatic that: Merely walking or hunting on land does not establish actual possession. The actions of the adverse party must change the state of the land, as by clearing, mowing, planting, harvesting fruit of the land, logging or cutting timber, mining, fencing, pulling tree stumps, running livestock and constructing buildings or other improvements. If the property is residential, such actions may include mowing the yard, trimming trees and hedges, changing locks, repairing or replacing fixtures (such as a swimming pool, sprinkler system, or appliances), or other actions so as to maintain the property for its intended use, to the exclusion of its true owner.149

The possession must be actual and not merely constructive. In Wabala and Another v Okumu,150 the Court stated that ‘We think that it would not only be wrong but also dangerous to introduce the concept of constructive possession… As the lawyers of old used to say, the occupation must be nec vi, nec clem, nec precario.’ This means that occupation must be: long use not by violence, stealth or permission.151 In Mutiso v Mutiso,152 the Court dismissed an action for adverse possession since the claimant pleaded an ‘open and quiet occupation and use of the… land with the full knowledge and consent both of the respondent and his predecessor in title.’153 What amounts to such kind of possession depends upon the nature of the land concerned. In Buckinghamshire County Council v Moran,154 enclosure of land was deemed to be the ‘strongest possible evidence of adverse possession.’ e) Non-permissive, hostile or adverse use of the property The adverse party must enter or use the land without permission.155 Therefore, renters, hunters or others who enter the land with permission are not hostile. The court will examine the motivations of the party from the following perspectives: Virginia Wanjiku Mwangi v David Mwangi Jotham Kamau [2013] eKLR. (1997) LLR (CAK). 151 Malcolm Bell v Hon Daniel Toroitich Arap Moi and the Board of Governors Moi High School Kabarak [2013] eKLR. 152 [1998] LLR 3268 (CAK). 153 [1998] LLR 3268 (CAK). 154 [1989] 2 All ER 255. 155 Sprankling, Understanding property law, 441. 149 150

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Objective view—used without true owner’s permission and inconsistent with true owner’s rights. Bad faith or intentional trespass view—used with the adverse possessor’s subjective intent and state of mind. Good faith view where the party mistakenly believed that it is his land. The law requires that the adverse party openly claims the land against all possible claims.156

The possession must be adverse as against the legal/registered owner of the land. In Mwinyi Hamisi Ali v Attorney General & another,157 the Court of Appeal stated that, “Adverse possession can only be claimed against a properly registered owner, that is to say, possession must be adverse to that of the registered proprietor.” Therefore, where the consent of the legal owner has been obtained, there can be no adverse possession. In Harrison Ngige Kaara v Gichobi Kaara & another,158 the Court rejected a claim for title by adverse possession since the claimant was on the land with the consent of his father and had subsequently agreed to the division of the land in a succession cause. The court was of the opinion that, “the limitation… period does not start running unless the land is in the possession of some interest in it hostile to that of the owner thereof. Possession is hostile if it is open, without right, without force or fraud, and exclusive.”

9.5.1 Policy rationales for adverse possession The acquisition of property in land through adverse possession is very contentious. It is seen by some as an attack on the institution of private property rights. However, the doctrine continues to exist due to various policy rationales including: limitations rationale; administrative rationale; personhood rationale; and the development rationale.159 According to the limitations rationale, failure by the true owner to institute a timely legal action to assert his/her ownership of the land, after being given actual or constructive notice, leads to stale claims and old evidence.160 It is, therefore, necessary to vest the ownership of the land in the adverse possessor to avoid this situation. The Court of Appeal in Mtana Lewa v Kahindi Ngala Mwagandi,161 where the main issue was the constitutionality of acquisition of land through adverse possession, observed that: 158 159 160 161 156 157

Virginia Wanjiku Mwangi v David Mwangi Jotham Kamau [2013] eKLR. [1997] eKLR. [1997] eKLR. Sprankling, Understanding property law, 449. Sprankling, Understanding property law, 449. [2015] eKLR.

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Limitation of actions mechanisms such as adverse possession play an important role in the enforcement of one of the fundamental legal principles of the judicial system, which is that at some point, litigation must come to an end. It is in the public interest and indeed in the interest of justice that an absentee landlord should not be allowed to hang the sword of Damocles over the heads of landless squatters in such times when the commodity is so scarce. Limitation of time for land claims as with claims of any other nature exist for three main reasons which are: i.

A plaintiff with a good cause of action ought to pursue it with reasonable diligence(equity does not aid the indolent);

ii.

A defendant might have lost evidence over time to disprove a stale claim; and

iii.

Long dormant claims have more cruelty than justice in them.

Every limitation of actions, including adverse possession, does come with certain exceptions and extensions to ensure justice and fairness as far as possible...Declaring it unconstitutional in the manner suggested by the appellant in this case would not only be lacking in good reason, but would pose the danger of exposing the entire statute and principle of limitations to challenge with undesirable effects and consequences. For instance, what will stop a litigant from challenging defences of limitation in cases of torts and contracts as being unconstitutional for the reason that they are an impediment to his constitutional right to access justice? It may be admitted that adverse possession in its present form in Kenyan law may occasion unsavory results for land owners, but such is the position in law even within the new constitutional dispensation. The proper recourse would be for the statutes to be carefully researched and developed to cover the mischief of unscrupulous squatters in the current state of affairs.

The appellant’s objection that section 38 of the Limitations of Actions Act162 was unconstitutional in taking away property from a land owner on the basis of adverse possession was rejected. The Court of Appeal agreed with the trial judge. The trial judge, Angote J, had stated that acquisition of land through adverse possession: is based on reasonable foundation acceptable in an open and democratic society demanding that persons with causes of action should pursue them with reasonable diligence; and that it is against public interest and the Constitution to allow land, a scarce resource, to lie abandoned in perpetuity; and that although the Constitution protects property rights, such rights must be qualified by regulation in the use of land, which includes how long the owner of the land can abandon it without utilising it, because the Constitution provides in Article 60(1) that land must be held, used and managed in a manner that is equitable, efficient, productive and sustainable. He went on to conclude that,

Chapter 22, Laws of Kenya.

162

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The law of limitation therefore cannot be equated with a law which arbitrarily deprives one of his land because it protects individuals and the society at large from stale claims; prevents land from falling into disuse; facilitates conveyancing, an important component in the growth of the economy of an agrarian society like ours and prevents disturbance or deprivation of what may have been acquired in equity and justice by long use and enjoyment.

In agreeing with the trial judge, Ouko JA stated that, ‘...the Limitation of Actions Act does in fact provide protection of the right to property by the application of specific rules that ensure due process before title can be lost to a third party. The process leading to acquisition of land by adverse possession is, accordingly not arbitrary and does not contravene Article 40(2) (a) of the Constitution...’

The administrative rationale perceives adverse possession as a mechanism for curing minor defects and protecting the title of the possessor. This was most relevant in the early times when errors in land recording were prevalent. The personhood rationale seeks to protect the personal attachment formed by the adverse possessor with the land. It views this attachment as being much stronger than that with the true land owner. Failure by the land owner to institute legal proceedings to assert his/her rights is deemed to indicate the loss of this attachment with the land.163 The development rationale is premised on the principle that all land ought to be used. It requires that no land is left idle. It goes ahead to give title to the adverse possessor because the true owner has failed to put the land to use. These rationales are utilitarian in nature since they seek to ensure maximum benefit for a greater number of people. Various arguments have been advanced for and against the doctrine of adverse possession. For example, in 2012 the then Assistant Minister for Industrialisation, Mr Nderitu Muriithi, commented as follows during the second reading of the Land Bill, now the Land Act of 2012, ‘...one thing that we can do and must improve is the whole question of the rule of law and, therefore, respect for private property rights. In many areas today, citizens who have title deeds or leaseholds to land find that they cannot use those pieces of land because of conflict. For example, where the law allows for adverse possession and yet the citizen cannot go to her land in Narok ranch, Mutukanio or Runyeki because of conflict or because her security is threatened...We should find a way to really enshrine and prioritize respect for private property rights over issues such as adverse possession.’164 Klass A, ‘Response essay: The personhood rationale and its impact on the durability of private claims to public property’ 103 Georgetown Law Journal Online, (2014), 41-49. 164 Kenya National Assembly, Official record (Hansard), 18 April 2012, 46. 163

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Likewise, Bhandari J of the Supreme Court of India opened his judgment in State of Haryana v Mukesh Kumar & others165 by stating that: ‘Adverse possession allows a trespasser – a person guilty of a tort, or even a crime, in the eyes of law-to gain legal title to land which he has illegally possessed for 12 years. How 12 years of illegality can suddenly be converted to legal title is, logically and morally speaking, baffling. This outmoded law essentially asks the Judiciary to place its stamp of approval upon conduct that the ordinary Indian citizen would find reprehensible...’

In the above case, the Court concluded that the law of adverse possession is irrational, illogical and wholly disproportionate, and recommended to the Union of India to seriously consider and make suitable changes in the law. In the case of JA Pye (Oxford) Ltd v United Kingdom,166 the Grand Chamber of the European Court of Human Rights reversed the decision of the Trial Chamber that adverse possession violated Article 1 of the European Convention on Human Rights. The Trial Chamber had reasoned that the violation was due to the disproportionate consequence, that no public interest is involved, and that property should not be deprived without compensation. However, the Grand Chamber found that adverse possession is not a “deprivation of possessions” but rather a “control of use.” It further held that the limitation period is also long enough hence reasonable. 9.6 Condominiums and other common interest communities Condominiums are a type of common interest communities (CICs) where a group of people have multiple interests in a single res. With ‘common interest communities’ properties are subjected to comprehensive land use restrictions administered by private community associations. Common interest communities, includes various types of residential developments, including condominiums, cooperatives, and planned unit developments. Salient features shared by CICs are as follows: (i) each owner is entitled to occupy a particular dwelling unit; (ii) all units are subject to comprehensive private restrictions that regulate land use and impose financial obligations; (iii) the development is governed by a private owners’ association; (iv) certain ‘common areas’ are owned in common by all owners or by the association; and (v)

165 166

upon receiving title, each owner automatically becomes a member of the association and is obligated to comply with the restrictions.

Petition for Special Leave to Appeal (Civil) No. 28034 of 2011. [2005] 19 BHRC 705.

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Generally, the main reason for the rising demand for CICs and condominiums is that they offer people the opportunity of home ownership at a more affordable cost, because it usually utilises less land per unit than a traditional development. This is particularly important as land is a finite resource that is increasingly diminishing.167

9.6.1 Types of common interest communities There has been a move in many parts of the world from detached property holding, where a person owns a stand-alone housing unit, to cases where a group of individuals own a block of multi-story units with certain areas that are left for common use. The rise of this form of ownership can be traced to the constant population increases, especially in urban areas, coupled with reduced availability of land for the establishment of housing units. This section discusses how property can be held in common in the form of condominiums and cooperatives. (a) Condominiums The basic idea behind the condominium is the separation of the ownership of air space from ownership of the land surface. In a condominium, each owner holds a fee simple title to an individual unit (usually in a multi-story building), and also owns an undivided interest in the common area as a tenant in common with other owners. The ‘individual interest’ is essentially a cube of air: the airspace enclosed by the walls, floor, and ceiling of the dwelling, because the building itself, land under the building, recreational facilities, and parking lots are usually all considered ‘common areas.’168 A timeshare is a variant of the condominium. It involves a condominium unit that is used for vacation purposes, e.g. a beach front. Ownership of the unit is usually divided into multiple periods of time (e.g., one week, one month each year) during which each owner has the right to exclusive occupancy. An owner receives a form of freehold estate. Alternatively, the owner of a timeshare interest might not receive a freehold estate at all, but merely a lease or license.169 They involve the division of ownership of a condominium into a number of fixed time periods. In such agreements property constitutes a relationship between people concerning time.

Sprankling, Understanding property law, 596. Sprankling, Understanding property law, 596-597. 169 Sprankling, Understanding property law, 596-597. 167 168

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In Kenya, the Sectional Properties Act170 provides 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 for the use and management of the units and common property. The Act allows for the subdivision of a structure into two or more units to be registered as a sectional plan under the Act.171 After registration of the plan, the registrar closes the register of the parcel described in it, opens a separate register for each unit described in the plan and issues title deed for sectional property in respect of each unit.172 Such titles in respect of a unit are deemed to have been issued under the repealed Registered Land Act173 and the unit may devolve or be transferred, leased, charged or otherwise dealt with in the same manner and form as land held under the Registered Land Act.174 Once the units have been registered under the Act, the Registrar includes in that register the share in the common property apportioned to the owner of each unit and also includes that share in the common property on a title deed for sectional property issued in respect of the unit.175 Common property comprised in a registered sectional plan is held by the owners of all the units as tenants in common in shares proportional to the unit factors for their respective units.176 A share in the common property cannot be disposed or become subject to a charge except as appurtenant to the unit of an owner, and a disposition of a charge on a unit operates to dispose of or charge that share in the common property without express reference to it.177 Upon the registration of a sectional plan, the Act requires that a Corporation be constituted under the names of the owners.178 The duties of the corporation are to: keep the buildings insured; keep the common property in a state of good repair; comply with any notice or order duly served on it by any competent local authority or public body requiring repairs to, or work to be performed in respect of, the land or any building or improvements thereon, and control, manage, and administer the common property and do all things reasonably necessary for the enforcement

172 173 174 175 176 177 178 170 171

Chapter 286A, Laws of Kenya. Section 4, Sectional Properties Act (Chapter 286A, Laws of Kenya). Section 5(1), Sectional Properties Act (Chapter 286A, Laws of Kenya). Section 5(5), Sectional Properties Act (Chapter 286A, Laws of Kenya). Section 5(6), Sectional Properties Act (Chapter 286A, Laws of Kenya). Section 6(1), Sectional Properties Act (Chapter 286A, Laws of Kenya). Section 6(2), Sectional Properties Act (Chapter 286A, Laws of Kenya). Section 6(3), Sectional Properties Act (Chapter 286A, Laws of Kenya). Section 17, Sectional Properties Act (Chapter 286A, Laws of Kenya).

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of the by-laws.179 To facilitate these, the Act requires the corporation to maintain a fund for administrative expenses sufficient for these purposes and to enable the discharge of any of its other obligations.180 When it comes to disposition of the common property, the corporation may by a unanimous decision be directed to transfer or lease the common property or any part of it or may grant an easement on the whole or part of the common property.181 (b) Cooperatives This is a form of ownership which originated before the condominiums. It allowed the division of ownership of multi-story buildings which were in use before the condominium era. The residents of the building did not receive ownership of their units; they owned a corporation which in turn owned the building and the facilities as whole.182 They are not commonly in use today.

9.7 Co-ownership Co-ownership arises where two or more persons are entitled to the simultaneous enjoyment of the same piece of land. The interests are held jointly, in common or in entirety: i) Joint tenancy In this form of ownership, each tenant is vested with the interest in question as a whole; no one holds any specific part.183 No one possesses a separate or divisible share in the property and, therefore, none has an exclusive entitlement to any part of the property. The tenants are not seen as individuals holding the interest but rather as a corporate entity. Joint tenancy may be severed to become a tenancy in common. Joint tenancy is a common law as well as a statutory creature in Kenya.184 It arises when the four unities of ownership exist during the time the property is conveyed and subsequently throughout the co-ownership: 181 182 183

Section 20(1), Sectional Properties Act (Chapter 286A, Laws of Kenya). Section 20(2), Sectional Properties Act (Chapter 286A, Laws of Kenya). Section 42(1), Sectional Properties Act (Chapter 286A, Laws of Kenya). Sprankling, Understanding property law, 580, 597. Section 91(1), Land Registration Act (Chapter 300, Laws of Kenya), and Section 2, Land Act (Chapter 280, Laws of Kenya). See also Biard JD, ‘Estates: Out of the ordinary problems’ Continuing Legal Education Society of British Columbia, June 2008. 184 Section 91, Land Registration Act (Chapter 300, Laws of Kenya). 179 180

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Interest – the interest of all parties in the property must be the same. If it is a freehold, all must hold freehold interest. Joint tenancy cannot arise where some tenants have a freehold interest while others have a leasehold interest.

Title – the title of the joint owners must be made by the same instrument or act;

Time – the interest of all proprietors must have vested at the same time; and

Possession – each proprietor is entitled to possession of every portion of the whole of the land and no one has the right to exclude others from the property.

Where all the above unities are met, then the right of survivorship comes into play. This right has the implication that upon the death of one proprietor his share devolves to the other automatically and as a matter of law; their interest does not form part of their estate but passes immediately to the surviving owner(s).185 The Land Registration Act186 requires proof of death to be produced to the registrar to effect devolution. If both proprietors die and it cannot be established who died first, Section 43 of the Law of Succession Act187 raises a presumption as to the order of death in the order of seniority. Termination is by way of severance of interest owned and this entails the joint tenants executing an instrument signifying that they agree to sever the joint ownership.188 In William v Hensman,189 it was held that a joint tenancy may be severed in three ways: (i) an individual owning a share of the property can through their act create a severance as to their share. The right of any joint tenant is a right of survivorship only in the event of no severance having taken place over the share that is claimed. Each one is at liberty to dispose of his own interest in such a manner as to sever it from the joint fund, losing at the same time his right of survivorship; (ii) by mutual agreement and (iii) there may be severance by any course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common. This means that the acts of an individual owning a piece of the shared property can be interpreted to constitute severance of their joint ownership. When the severance depends on an inference of this kind without any express act of severance, it will not suffice to rely on an intention, with respect to a particular share, declared only behind the backs of other persons interested.190

187 188 189 190 185 186

Biard, ‘Estates’. Section 93 Land Registration Act (Chapter 300, Laws of Kenya). Chapter 160, Laws of Kenya. Section 91(7), Land Registration Act (Chapter 300, Laws of Kenya). (1861) 70 ER 862. See Wright v Gibbons (1949) 78 CLR 313.

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ii) Tenancy in common Proprietorship is of separate but undivided shares.191 The only fact that brings such tenants together is that they have shares in a single property, which has not yet been divided among them. The shares are undivided but not necessarily equal since partners may own different shares. The only unity required in this form of ownership is that of possession. Each tenant possesses a separate and divisible interest in the property despite the fact that the property is not physically separated. Under this form of ownership, no right of survivorship exists. Once a tenant dies, their share passes to their heir. In this regard, property held through tenancy in common comes under the ambit of succession laws as heirs have legal authority to inherit. The tenancy can be terminated by partitioning or sale of the interest. Tenants in common can have equal or unequal shares in the property.192 This form of co-ownership is provided for under Kenyan law. The Land Act defines co-tenancy to include tenancy in common.193 The Act goes ahead to define it as “a form of concurrent ownership of land in which two or more persons possess the land simultaneously where each person holds an individual, undivided interest in the property and each party has the right to alienate, or transfer their interest”.194 It also provides, inter alia, for the ways in which interests in this form of ownership may pass, for example, transmission.195 iii) Tenancy in entirety Tenancy in entirety is a form of co-ownership where ‘a husband and wife hold property as a unity.’196 It can only exist between a husband and wife, regarded as one and hold the property as a whole.197 It is in principle a form of joint tenancy but differs from joint tenancy in certain respects. The right of survivorship applies to tenancy in entirety as is the case in joint tenancy so that the surviving spouse, whether wife or husband, is entitled to the whole of the property in question.198 193 194 195 196

Section 103, Land Registration Act (Chapter 300, Laws of Kenya). Biard, ‘Estates’. Section 2, Land Act (Chapter 280, Laws of Kenya). Section 2, Land Act (Chapter 280, Laws of Kenya). Section 50, Land Act (Chapter 280, Laws of Kenya). Committee on Death Taxation of Estates and Trusts, Probate and Trust Division, ‘Property owned with spouse: joint tenancy, tenancy by the entireties and community property’ 11 Real Property, Probate and Trust Journal, 3 (1976), 406. 197 Committee on Death Taxation of Estates and Trusts, Probate and Trust Division, ‘Property owned with spouse’, 406. 198 Biard, ‘Estates’. 191 192

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The difference occurs with respect to severance. Under a joint tenancy, a joint tenant may, through their own act, create a severance as to their share.199 However, a tenancy by entirety is indestructible and cannot be severed during coverture and may not be defeated by a conveyance by one spouse to a third party’.200 At common law, a piece of land could not be conveyed to a husband and a wife as tenants in common or joint tenants but took ownership of the land in entirety on the basis of the principle of unity of husband and wife. ‘They were said to take a tenancy by the entireties because there were no moieties between husband and wife.’201 However, it only applied to real as opposed to personal property, unlike today, as the husband was regarded as the owner of the personalty of the wife.202 The Kenyan property law regime does not expressly provide for this form of co-ownership.203 However, any transfer, lease, charge or conveyance of matrimonial property requires spousal consent; otherwise it is void.204

William v Hensman (1861) 70 ER 862. Committee on Death Taxation of Estates and Trusts, Probate and Trust Division, ‘Property owned with spouse’, 407. 201 GFD, ‘Tenancy by the entirety’ 64 University of Pennsylvania Law Review and American Law Register, 4 (1916), 394. 202 Committee on Death Taxation of Estates and Trusts, Probate and Trust Division, ‘Property owned with spouse’, 407. 203 See, for example, Section 2, Land Act (Chapter 280, Laws of Kenya), which states that: ‘co-tenancy’ means the ownership of land by two or more persons in undivided shares and includes joint tenancy or tenancy in common. 204 See generally, Land Registration Act (Chapter 300, Laws of Kenya) and Land Act (Chapter 280, Laws of Kenya). Most importantly, spousal interests are overriding interests under section 28 of the Land Registration Act (Chapter 300, Laws of Kenya). 199 200

Chapter Ten

MATRIMONIAL PROPERTY RIGHTS

10.0 Introduction In this chapter, we discuss the law applicable to matrimonial property. Matrimonial property here refers to property acquired by either of the spouses or jointly before or during marriage to be owned or used in the marriage.1 Most matrimonial property rights disputes arise upon the dissolution of marriage. Because of the special nature of the marriage relationship it gives rise to difficulties of proof when the marriage breaks down and questions of ownership of property have to be decided. Obviously the transactions between spouses when they are happily married cannot be expected to be easily evidenced in the same way as ordinary commercial transactions.2 Matrimonial property disputes could arise in different circumstances. They could arise where one spouse has contributed financially towards the acquisition of property, and the other did not contribute financially or at all. Sometimes, one spouse may be registered as the owner, and the other one only spends money or time making improvements on the property, among a variety of other circumstances.3 Other times, both spouses may be registered jointly as owners, but with varying proportions of contribution. It is for this very reason that the chapter discusses matrimonial property through the lens of contribution. How can matrimonial property be divided fairly and equitably? 1

Centre for Public Legal Education Alberta, Families and the law: Property division for married and unmarried couples, 2014, 5. Tabitha Wangechi Nderitu v Simon Nderitu Kariuki [1998] eKLR. See Pettittv Pettitt [1969] 2 ALL ER 385, 358.

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Within common law jurisdictions, such as Kenya, fairness and non-discrimination in the division of matrimonial property remains a mirage. This is so because, at common law, a married woman could not own property as she was treated like an incompetent. To allow married women to acquire property in her own name in marriage, the Married Women’s Property Act (MWPA), 1882, was enacted in England. MWPA was applied in Kenya as a statute of general application. However, the mischief that MWPA sought to cure had not disappeared altogether as a married woman still had to prove financial contribution in the acquisition of property to get a share of the matrimonial property. In addition, courts interpreted the provisions of MWPA in a manner that did not recognise the uniqueness of the marriage union leading to denial of property rights of the spouse who had not contributed financially. Moreover, courts have for many years made inconsistent decisions on the division of matrimonial property, and have not developed guidelines as to how this is to be done. This history continues to influence trends in the division of matrimonial property in Kenya today. For example, although the law now recognises both financial and non-financial contributions in the acquisition of matrimonial property, it is evidentially difficult to prove or attach a financial value to aspects of non-financial contribution such as childcare, reproductive labour and companionship. The chapter problematises matrimonial property by first examining how the major regimes deal with property acquired during coverture. Development of the law of matrimonial property in Kenya is then outlined highlighting the difficulty faced by courts in applying section 17 of MWPA and the ensuing inconsistent decisions. It is noteworthy from the historical developments that there have been no clear guidelines on how to deal with non-financial contributions in the acquisition of matrimonial property. The chapter then looks at the reforms that have been undertaken in law to try and bring fairness and equity in the sharing of matrimonial property. These reforms span from 2009 when the National Land Policy was formulated to the enactment of the Matrimonial Property Act 2013 which gives effect to the Constitution of Kenya 2010. The chapter concludes by highlighting emergent issues that add difficulties to the already complex matrimonial property labyrinth.

10.1 Matrimonial property rights systems Before venturing into matrimonial property in Kenya, it is important to look at the two main regimes of matrimonial property system in the world, since they

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offer a useful guide in understanding the approaches that courts and the legislature have taken towards the division of property acquired during marriage. Matrimonial property rights systems can broadly be classed into two: community of property and separate property regimes. (a) Community of property system The community of property system has its origin in the civil law tradition.4 Within community of property systems there are some that are pure community of property systems, in that all property is held jointly from the point of entering into the marriage, while others are quasi-community property systems, in that property acquired during marriage does not necessarily become community property.5 However, most community of property systems generally recognise the fact that property acquired during the subsistence of a marriage is the product of the joint efforts of both spouses, and therefore belongs to them irrespective of their contribution towards its acquisition.6 For example, under community of property regimes, if a wife stays at home doing domestic work, she is deemed to have contributed towards the acquisition of matrimonial property as much as the husband who is employed. Under this system, there is recognition of the fact that marriage is a social as well as an economic partnership between spouses, where each spouse plays an important role and has equal interests in property acquired during the marriage, at dissolution or death.7 Therefore, this system protects essentially weaker (mostly economically) parties in a marriage by equalising the position of the spouses in a marriage even if one spouse does not contribute financially.8 It, therefore, recognises indirect contributions in the acquisition and division of matrimonial property.9 However, in most legal systems today, the presumption that all matrimonial property is community property is always rebutted by adducing evidence to the

7 5 6

Quijano G, ‘Matrimonial property law reform in Canada: From separate property to community property with joint management - principle v pragmatism,’ 13 Osgoode Hall Law Journal, 2 (1975), 386. See, for example, Section 125, California Family Code. Emanuel SL, Emanuel law outlines: Property, 8ed, Wolters Kluwer, New York, 2012, 127. Ellis B, ‘Protecting the right to marital property: Ensuring a full equitable distribution award with fraudulent conveyance law’ 30 Cardozo Law Review, 4 (2009), 1710. Rešetar B, ‘Matrimonial property in Europe: A link between sociology and family law’ 12 Electronic Journal of Comparative Law, 3 (2008), 1. Rešetar, ‘Matrimonial property in Europe’, 2.

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effect that the property is separate.10 Separate property is property acquired by a spouse before entering into marriage and those acquired by way of gift, inheritance or bequest even after the marriage.11 Income from community property is deemed common property while that from separate property is generally treated as separate property12 unless the contrary is proven. A conveyance of common property is valid only if done by both spouses, while one spouse may dispose of separate property.13 Creditors can reach community property when enforcing debts incurred for the benefit of the community.14 Upon divorce, each spouse keeps their separate property, and community property is divided equally unless otherwise agreed.15 A spouse keeps a half of the community property on the death of the other spouse and the remaining half passes together with the separate property of the deceased spouse according to the law of succession.16 However, spouses may waive community property rights through ante-nuptial or post-nuptial agreements.17 An ante-nuptial agreement, also referred to as a prenuptial or premarital agreement, is a contract entered into by parties contemplating marriage in order to regulate the manner in which the financial aspect of any future reallocation of property upon divorce will be conducted. A postnuptial agreement has the same characteristics as a prenuptial agreement, except that it is entered into after the marriage.18 (b) Separate property systems A separate property system allows each spouse to hold property in their own name and is the system prevailing in most common law jurisdictions.19 Before delving into the nitty-gritty of this system, it is useful to explain how a marriage was conceived at common law. At common law, marriage was understood in the Hyde v 12 13 14 10 11

15 16

Emanuel, Emanuel law outlines, 128. Section 13, Matrimonial Property Act (Act No. 49 of 2013). Emanuel, Emanuel law outlines, 128. Section 94(4), Land Act (Act No. 6 of 2012). Bird GB, Cases and materials on California community property, 8ed, Thomson West, Minnesota, 2003, 503. Sitarz D, Simplified divorce kit, Nova Publishing, New York, 2004, 35. Bruce J, Ely J and Bostick C, Cases and materials on modern property law, West Publishing, Minnesota, 1984, 377. Bruce J and Ely J, Cases and materials on the modern property law, 6ed, Thomson West, Minnesota, 2007, 292. Dalling S, ‘Regulating prenuptial agreements: Balancing autonomy and protection’ Durham University, 2013 http://etheses.dur.ac.uk/7768 on 22 October 2015. Quijano, ‘Matrimonial property law reform in Canada’, 382.

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Hyde20 sense where Lord Penzance defined it ‘as the voluntary union for life of one man and one woman to the exclusion of all others.’ Upon marriage, the husband and wife were considered one. The wife’s legal personality was suspended and the two individuals became one, the husband.21 Therefore, the husband was the legal holder of property and the wife could not hold property in her own name. However, this trend changed in the nineteenth century with the enactment of MWPA which enabled married women to acquire, hold and dispose of any real or personal property in her own name.22 As a consequence, it became possible for spouses to have separate property in marriage.23 Although it was possible for parties in a marriage to hold property separately, a problem arose regarding the division of property held jointly or in the name of one party yet matrimonial in nature. In such instances, parties had to prove their contribution to the acquisition and maintenance of the property in question.24 The contribution required was of a financial nature and it is only later on that nonfinancial contributions were taken into account.25 The most prejudiced party due to the implementation of this system was the wife26 since most wives would take care of the home as the husband was employed or conducted business activities. This way, they would not be able to prove any financial contribution to the acquisition of matrimonial property. There continues to be major challenges when it comes to measuring or proving non-monetary contribution by a spouse in the acquisition of matrimonial property.

10.2 Development of matrimonial property rights law in Kenya Kenyan law on matrimonial property has largely been influenced by legal developments in England, mainly through MWPA, which applied to Kenya as a statute of general application.27 Various other laws that applied to the area included: the

22 23 24

[1866] LR 1 P&D 130, 133. William & Glyn’s Bank Ltd v Boland [1980] UKHL 4. Section 1, Married Women’s Property Act (1882). See Lord Morris’ judgment in Pettit v Pettit All ER 385. Benschop M, Rights and reality: Are women’s equal rights to land, housing and property implemented in East Africa? United Nations Human Settlement Programme, Nairobi, 2002, 163. 25 Benschop, Rights and reality, 163. 26 Benschop, Rights and reality, 163. 27 The law has since been repealed by the Matrimonial Property Act (Act No. 49 of 2013). 20 21

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repealed Constitution; the Matrimonial Causes Act (repealed);28 the Marriage Act (repealed);29 and the Law of Succession Act.30 MWPA was a United Kingdom Statute of General Application, applied in Kenya by virtue of Section 3(1) (c) of the Judicature Act.31 It recognised the legal capacity of a married woman to hold and transact property in her own right, which was a step forward for married women as it was not possible for them to hold property at common law. As already mentioned, the position at common law depicted a gender bias32 and an anachronistic system of regulating matrimonial property rights,33 especially due to the application of the doctrine of coverture. Under the doctrine of coverture, the legal identity of a wife was subsumed into that of the husband upon marriage. A wife’s legal existence was suspended or at least incorporated and consolidated into that of the husband. The husband was to provide his wife with protection and support, and in return she had the obligation of providing domestic services to him.34 Thus, during marriage, a wife was regarded as a ‘femme covert’ and suffered a number of legal disabilities including ownership of property.35 A common law wife was viewed as being physically, mentally and morally inferior and the husband’s legal power over his wife was similar to the guardianship of an incompetent.36 Lord Denning succinctly explained the effect of the doctrine of coverture in William & Glyn’s Bank Ltd v Boland.37 According to the learned judge, ‘the law regarded the husband and wife as one and the husband as that one.’ Similar views are expressed by Blackstone who wrote that: ‘the husband and the wife are one in law: that is, the very being or legal existence of the woman is suspended during the marriage.’38 Effectually, in Dibble v Hutton,39 the court invalidated a contract between a husband and a wife for the sale of jointly owned land since at common law they were regarded as one person in law. Chapter 152, Laws of Kenya. Section 28 of the Act gave courts the powers to make orders on the division of settled property after the divorce for the benefit of the parties and the children. 29 Chapter 150, Laws of Kenya. 30 Act No. 21 of 1968. 31 Chapter 8, Laws of Kenya. 32 Sprankling, Understanding property law, 146. 33 Chused R, ‘Married women’s property laws: 1880 – 1850’ 71 Georgetown Law Journal (1983), 1359. 34 Sprankling, Understanding property law, 147. 35 Blackstone W, Commentaries on the law of England, Clarendon Press, Oxford, 1765, 430. See also Bruce and Ely, Cases and materials on the modern property law, 289. 36 Dukeminier J and Krier J, Property, 2ed, Little, Brown & Co, Boston, 1988, 324. 37 [1980] UKHL 4. 38 Ehrlich J, Ehrlich’s Blackstone, Nourse Publishing, California, 1959, 83. 39 1 Day (Conn) 221(1804). 28

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The personal property of the wife before and during marriage vested in the husband. For real property, the doctrine of jure uxoris applied enabling the husband to possess all land belonging to the wife.40 It was possible for the husband to spend the rents and profits from the land as he wished, or sell the property even at the protest of the wife.41 Essentially, the common law husband had three marital powers: power as head of the family; power over his wife’s person; and power over her property.42 The effect of the doctrine of coverture was also manifest upon divorce. While the husband was able to retain the properties, since they were in his name, the wife was catered for through alimony as the law did not want to leave her destitute.43 However, as time progressed, there arose a need to enable married women to hold property in their name and remove the incapacities that existed at common law. This happened during the nineteenth century, with the enactment of MWPA in 1882. It is, however, suggested that the reform was not only on the basis of giving effect to gender equity. It was also intended to protect family property from the husband’s creditors.44 It resulted in a system that offered the spouses the legal opportunity to enjoy equal rights during the marriage, at least in theory.45 It is this MWPA of 1882 that has been used by judges in Kenya in determining disputes over the division of matrimonial property for over 100 years. The case of I v I46 was the first to pronounce that indeed MWPA applied to marriages solemnised in Kenya. Later, courts pronounced that the law could also be used to resolve questions touching on matrimonial property under customary law47 and Islamic marriages.48 Section 17 of the Act, which is the most litigated over provision of that law, gave courts the discretion to grant appropriate remedies upon ascertainment of the respective beneficial interest in a disputed property. It provided, inter alia, that in any question between a husband and wife as to the title to or possession of property, either party can apply by summons or otherwise in a summary way to any judge of

42 43 44 45 46 47 48 40 41

Emanuel, Emanuel law outlines, 121. Emanuel, Emanuel law outlines, 121. Hahlo H, The South African law of husband and wife, 5ed, Juta, Johannesburg, 1985, 189. Emanuel, Emanuel law outlines, 123. Chused, ‘Married women’s property laws’, 1359. Sprankling, Understanding property law, 149. [1970]. Karanja v Karanja [1976] KLR, 307. Fathiya Essa v Mohammed Essa (Unreported) Civil Appeal No. 101 of 1995 (Nairobi).

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the High Court of Justice, who may make such orders with respect to the property in dispute, and to the costs of and consequent on the application as he thinks fit.49 Courts interpreted section 17 of the Act, as not conferring or altering title where none existed. Omolo JA in Essa v Essa,50 while also observing that MWPA was an Act of general application applying to Muslims, as it did to non-Muslims in Kenya, cited Lord Morris of Borthy-Guest in Pettit v Pettit,51 stating that: ‘...one of the main purposes of the Act of 1882 was to make it fully possible for the property rights of the parties to a marriage to be kept entirely separate. There was no suggestion that the status of marriage was to result in any common ownership or coownership of property. All this, in my view, negatives any idea that section 17 was signed for the purpose of enabling the court to pass property rights from one spouse to another. In a question as to the title to property, the question for the court was whose is this? and not “to whom shall this be given?”’

Therefore, it was incumbent upon each spouse to adduce evidence to prove their claim to the property in question. Prove of financial contribution was and has been a key determinant of whether or not a spouse is entitled to a share of matrimonial property. This view is discernible from the English cases of Pettit v Pettit52 and Gissing v Gissing53 which held that it was only through financial contribution, direct or indirect, towards the acquisition of property registered in the name of the other spouse that one could be entitled to a beneficial interest in the property. However, there were no general guidelines for determining how matrimonial property in different circumstances was to be divided. As such, courts adopted different approaches in making such determinations. Where property was registered in the name of one spouse, for example, the other spouse had to adduce evidence of contribution in order to obtain a proprietary interest in the property. In Tabitha Wangechi Nderitu v Simon Nderitu Kariuki,54 Kwach J vividly captures this aspect when he observed that: A wife must prove that she contributed directly or indirectly to the acquisition of the assets. It is not enough for her [to] simply show that during the period under review she was sitting on the husband’s back with her hands in his pockets. She has to bring evidence to show that she made a contribution towards the acquisition of the properties.

51 52 53 54 49 50

Echaria v Echaria [2007] eKLR. [1996] EA 53. [1970] AC 777. [1970] AC 777. [1970] UKHL 3. [1998] eKLR.

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Again in Peter Mburu Echaria v Priscilla Njeri Echaria,55 the Court of Appeal stated that: Where the disputed property is not registered in the joint names of the spouses but is registered in the name of one spouse, the beneficial share of each spouse would ultimately depend on their proven respective proportions of financial contribution either direct or indirect towards acquisition of the property. However, in cases where each spouse has made a substantial but unascertainable contribution, it may be equitable to apply the maxim “equality is equity” while heeding the caution by Lord Pearson in Gissing v Gissing.

Where the property was registered in the names of spouses jointly, the property was deemed to have been acquired in equal shares. In Kamore v Kamore,56 the Court of Appeal held that: Where property is acquired during the course of coverture and is registered in the joint names of both spouses, the court in normal circumstances must take it that such property, being a family asset is acquired in equal shares.

Similarly, in Kivuitu v Kivuitu,57 the Court of Appeal averred that where property has been registered in the joint names of the husband and wife with no specifications on who owned what proportion, the clear intention was to have the family property owned in equal shares. In regard to cases where spouses had been awarded equal shares to matrimonial property, the Court of Appeal stated that even then there was no general principle of equality that was followed. The Court noted thus: In all the cases involving disputes between husband and wife over beneficial interest in the property acquired during a marriage which have come to this Court the Court has invariably given the wife an equal share (see Essa v Essa (supra) Muthembwa v Muthembwa Civil Appeal No. 74 of 2001 and Mereka v Mereka, Civil Appeal No. 236 of 2001). However, a study of each of those cases shows that the decision in each case was not as a result of the application of any general principle of equality of division. Rather, in each case, the Court appreciated that for the wife to be entitled to a share of the property registered in the name of the husband, she had to prove contribution towards the acquisition of the property. The Court considered the peculiar circumstances of each case and independently assessed the wife’s contribution as equal to that of the husband.

In relation to non-monetary contribution, for example, the performance of domestic chores and child bearing by a wife, it was generally argued that such could not entitle her to any beneficial interest in the property registered in her husband’s

[2007] eKLR. [2000] 1 EA 81. 57 [1991] 2 KAR 241. 55 56

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name upon dissolution of the marriage.58 Courts applied the concept of a constructive trust as the basis of entitling the wife to a beneficial interest but such could only apply to financial contribution. For instance, in Peter Mburu Echaria v Priscilla Njeri Echaria59 the Court of Appeal firmly stated that, According to the English law of trusts it is only through the wife’s financial contribution, direct or indirect, towards the acquisition of the property registered in the name of her husband that entitles her to a beneficial interest in the property.

In giving its decision, the Court cited the English case of Burns v Burns60 where Fox LJ, while talking about the nature of the contributions towards the acquisition of a house, stated that: If there is a substantial contribution by the woman of the family expenses, and the house was purchased on a mortgage, her contribution is, indirectly referable to the acquisition of the house since in one way or other, it enables the family to pay the mortgage instalments. Thus a payment could be said to be preferable to the acquisition of the house if, for example, the payer either: a.

Pays part of the purchase price; or

Contributes regularly to the mortgage instalments; or

Pays off part of the mortgage; or

Makes substantial financial contributions to the family expenses so as to enable the mortgage instalments to be paid.

In Gissing v Gissing61 it was the husband who purchased the matrimonial home and had it conveyed into his sole name during coverture. There was no express stipulation as to how the beneficial interest in the house would be shared. However, the wife provided some money for furniture and improvements, but it was not suggested that her efforts or earnings made it possible for the husband to raise the purchase money for the house. The House of Lords was called upon to determine whether the wife was entitled to a beneficial interest in the house. It was held, inter alia, that if there is no agreement between the spouses regarding the matrimonial house to which both contributed to the purchase, and the registered owner has not shown intention that the other spouse should have a beneficial interest in the house, the question of whether that spouse has a beneficial interest would be dependent on the law of trust. Lord Diplock expressed himself as follows: 60 61 58 59

Tabitha Wangechi Nderitu v Simon Nderitu Kariuki[1998] eKLR. Civil Appeal No. 75 of 2001. [1984] 1 ALL ER 244. [1970] 2 All ER 780.

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‘any claim to a beneficial interest in land by a person, whether spouse or stranger, in whom, the legal estate in the land is not vested must be based on the proposition that the person in whom the legal estate is vested holds it as a trustee on trust to give effect to the beneficial interest of the claimant as cestui que trust. The legal principles applicable to the claim are those of the English Law of trusts and in particular, in the kind of dispute between spouses that comes before the courts, the law relating to the creation and operation of resulting implied or constructive trusts…’

The Court also drew a distinction between the position where a contributing spouse makes direct contributions to the purchase of the property and where he/she makes indirect contributions. In such cases, the share of the contributing spouse would be proportionate to the contributions, either of direct payments for the property or a fair estimate of indirect contribution. Where property was acquired and registered in the name of one spouse, but the other carried out improvements on the property, it was argued that such improvements could not entitle a spouse to a beneficial interest in the property. In Pettit v Pettit62 the wife purchased property in her name, and her husband carried out internal decorations to the property in his free time. The House of Lords was called upon determine whether this work carried out by the man would entitle him to a beneficial interest in the property. It was held that the husband was not entitled to an interest in his wife’s property merely because he had done in his free time jobs which husbands normally do. Moreover, because there was neither fraud nor a mutual intention or agreement for the husband to gain beneficial interest, his claim could not succeed. In Kivuitu v Kivuitu,63 the Court of Appeal recognised non-financial contribution as entitling a spouse to a share of the matrimonial property. In this case, it is the husband who had commenced the process of purchasing the subject property and paid the deposit. He was, however, dissatisfied with the location and security of the house and agreed with his wife to buy another house at a different location. The husband went abroad and left the wife in charge of looking for an alternative property. Subsequently, the wife found an ideal matrimonial home, and paid the deposit for this property out of moneys obtained from a business owned by the husband and a third party. The balance was paid by the man from his salary and the property registered in their joint names.

[1970] AC 777. [1991] 2 KAR 241.

62 63

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Upon divorce, the wife applied for the matrimonial home to be sold and the proceeds shared equally between them. The Court of Appeal held that where property is registered in the joint names of the husband and wife with no specifications on who owned what proportion, the clear intention is to have the family property owned in equal shares. It was also stated that section 17 of the MWPA does not give the court the power to authorise a sale but a determination and declaration of the wife’s share in the property. Omolo JA in the Kivuitu case remarked that under section 17 of the MWPA a wife’s contribution should not be limited to monetary contribution only. Her nonmonetary contributions to the purchase of matrimonial property ought to be assessed and valued. The learned judge remarked thus in obiter: In the case of the urban wife, if they were not there to assist in the running of the house, the husband would be compelled to employ someone to do the house chores for him; the wife accordingly saves him that kind of expense. In the case of the wife left in the rural home, she makes even a bigger contribution to the family welfare by tilling the family land and producing either cash or food crops. Both of them, however, make a contribution to the family welfare and assets. So that where such a husband acquires property from his salary or business and registers it in the joint names of himself and his wife without specifying any proportions, the courts must take it that such property, being family asset, is owned in equal shares. Where, however, such property is registered in the name of the husband alone then the wife would be, in my view, perfectly entitled to apply to the court under section 17 of the Married Women’s Property Act 1882, so that the court can determine her interest in the property and in that case, the court would have to assess the value to be put on the wife’s non-monetary contribution.

Reproductive labour was recognised by the Court of Appeal in Tabitha Wangechi Nderitu v Simon Nderitu Kariuki64 as contribution. Pall JA, in finding that the trial judge had misdirected himself in reducing the wife’s share, on the basis that her weakness during pregnancy made her unable to work, observed as follows: Obviously, the appellant contributed to the enhancement of the welfare of the family as the pregnancies brought about the progression of the progeny of the respondent. He alone could not have achieved it.

Be that as it may, assessing and valuing non-monetary contribution remains a daunting task. When disputes over property arise, the marriage is already broken down. In addition, during the happy days of the marriage no party is usually keen to take note or keep records of their contributions to the union. Such difficulties makes [1998] eKLR.

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the division of matrimonial property a herculean task for the judiciary in countries following the separate property system.

10.3 Reforms on the law of matrimonial property Over time, the Kenyan society realised that the provisions of the MWPA did not cater for the changing situations in society. With changing times, the Act gradually became obsolete, foreign and unrealistic. This point was profoundly stated by the Court of Appeal in Peter Mburu Echaria v Priscilla Njeri Echaria65 thus: It is now about seven years since this Court expressed itself in Kamore v Kamore, but there is no sign, so far, that Parliament has any intention of enacting the necessary legislation on matrimonial property. It is indeed a sad commentary on our Law Reform Agenda to keep the country shackled to a 125 year old foreign legislation which the mother country found wanting more than 30 years ago! In enacting the 1967, 1970 and 1973 Acts, Britain brought justice to the shattered matrimonial home; surely, our Kenyan spouses are not the product of a lesser god and so should have their fate decided on precedents set by the House of Lords which are at best of persuasive value! Those precedents as shown above, are of little value in Britain itself and we think the British Parliament was simply moving in tandem with the times. Human rights issues and particularly women rights issues took center stage on the global theatre from the 1960’s. There were, for example, International Covenants on “Civil and Political Rights” and “Economic Social and Cultural Rights” which were adopted in 1966 and came to force in 1976; the “Convention on the Elimination of All Forms of Discrimination against Women” (CEDAW) which came into force in 1981; and the “African Charter on Human and People’s Rights” which was adopted in 1981. Kenya has ratified all those international instruments and they therefore provide a source of law which, in appropriate cases, the Courts in this country may tap from.

Efforts were therefore undertaken to reform the legal regime governing matrimonial property in Kenya. Courts, through their decisions, were in the forefront in the quest to reform the matrimonial property regime. Reforms have also been attempted vide the formulation of, among others, the National Land Policy, the Constitution of Kenya 2010, the Matrimonial Property Act 2013 and new land legislation as discussed below.

Civil Appeal No. 75 of 2001.

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10.3.1 The National Land Policy, 2009 The lack of clarity in the division of matrimonial property is identified in the policy as one of the critical issues that contributes to the land question. Gender discrimination in succession and the exclusion of women in land decision-making processes brings the land question into sharp focus.66 The policy attributes discrimination in property ownership to cultures and traditions among communities that are gender insensitive. For instance, women are rarely represented in institutions dealing with land management and, therefore, do not get the opportunity to participate in decision-making. As a result, very few women are registered as land owners in this country, further curtailing their financial capability.67 Thus, most women enter into marriages with fewer property rights compared to women and are continually discriminated against and denied property rights because of the application of customary laws and religious laws that are patriarchal. In light of this position, the policy requires the government to repeal laws perpetuating gender discrimination and establish a clear legislative framework for the protection of the rights of women to land and their participation in institutions governing land. On matrimonial property, the policy requires the making of provisions for joint spousal registration and documentation of land rights and joint spousal consent to the disposition of land in all forms of tenure.68 It further highlights the discrimination of the then existing laws against spouses who indirectly contribute to the acquisition of matrimonial property and the inconsistency of courts when determining what amounts to contribution. To secure the rights of spouses to matrimonial property, the policy requires the review of laws on matrimonial property and succession to ensure that they comply with gender equity and to establish mechanisms to curb the selling and mortgaging of family land without involving the spouses. It also requires the enactment of a specific legislation on the division of matrimonial property to replace MWPA.69

68 69 66 67

Republic of Kenya, Sessional paper No. 3 of 2009 on National Land Policy, 2009, 7. Republic of Kenya, Sessional paper No. 3 of 2009 on National Land Policy, 52. Republic of Kenya, Sessional paper No. 3 of 2009 on National Land Policy, 51. Republic of Kenya, Sessional paper No. 3 of 2009 on National Land Policy, 52.

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10.3.2 Constitution of Kenya, 2010 The Constitution contains various provisions aimed at achieving equity and fairness in property ownership and all other spheres of life.70 Most importantly, it recognises the family as the natural and fundamental unit of society and the necessary basis for social order, and mandates the state to recognise and protect it.71 It further provides that the parties to a marriage are entitled to equal rights at the time of the marriage, in the course of the marriage and at the point of dissolution.72 Courts have so far pronounced themselves on Article 45(3) of the Constitution. In Agnes Nanjala William v Jacob Petrus Nicolas Vander Goes,73 the Court of Appeal interpreted Article 45(3) as implying equality in the sense of dividing property on a 50:50 share basis. The decision was delivered before the Matrimonial Property Act 2013 was enacted. The Court made the following observation: Article 45(3) of the Constitution provides that parties to a marriage are entitled to equal rights at the time of the marriage during the marriage and at the dissolution of the marriage. This article clearly gives both parties to a marriage equal rights before, during and after a marriage ends. It arguably extends to matrimonial property and is a constitutional statement of the principle that marital property is shared 50-50 in the event that a marriage ends. However pursuant to Article 68 parliament is obligated to pass laws to recognize and protect matrimonial property, particularly the matrimonial home. Although this is yet to happen, we hope that in the fullness of time Parliament will rise to the occasion and enact such a law. Such law will no doubt direct a court when or after granting a decree of annulment, divorce or separation, order a division between the parties of any assets acquired by them during the coverture. Pending such enactment, we are nonetheless of the considered view that the Bill of rights in our Constitution can be invoked to meet the exigencies of the day.

However, the interpretation of Article 45 to the effect that matrimonial property is to be shared equally was rejected in UMM v IMM74 which was after the enactment of the Matrimonial Property Act, 2013. In this case, Tuiyott J had this to say regarding Article 45(3): As far as I can see it is the provisions of Sections 2, 6 and 7 of The Matrimonial Property Act, 2013 fleshes out the right provided by Article 45(3). By recognizing that both monetary and non-monetary contribution must be taken into account, it is congruent with the Constitutional provisions of Article 45 (3) of The Constitution that parties to a 72 73 74 70 71

See generally Articles 10, 27, 40, 45, 60 and 68, Constitution of Kenya (2010). Article 45(1), Constitution of Kenya (2010). Article 45(3), Constitution of Kenya (2010). Civil Appeal No.127 of 2011. [2014] eKLR.

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marriage are entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage. I take the view that at the dissolution of the marriage each partner should walk away with what he/she deserves. What one deserves must be arrived at by considering her/his respective contribution whether it be monetary or non-monetary. The bigger the contribution, the bigger the entitlement. Where there is evidence that a non-monetary contribution entitles a spouse to half of the marital property then, the Courts should give it effect.

The rationale underlying the Court’s decision was that: ‘…to hold that Article 45(3) decrees an automatic 50:50 sharing could imperil the marriage institution. It would give opportunity to a fortune seeker to contract a marriage, sit back without making any monetary or non-monetary contribution, distress the union and wait to reap half the marital property. That surely is oppressive to the spouse who makes the bigger contribution. That cannot be the sense of equality contemplated by Article 45(3).’

It is very unfortunate that even with the progressive provisions of the Constitution, the issue of division of matrimonial property remains a quagmire without clear guidelines to guide courts in determining such disputes. Inconsistency in court decisions continue as depicted by the above decisions. Interestingly, the Matrimonial Property Act 2013, which is meant to flesh out the equality principle in Article 45 of the Constitution, takes us back to the problem of proving contribution, with its attendant injustices towards spouses whose make non-monetary contribution in the acquisition of property. The court in UMM v IMM75ought to have been guided by the equality principle irrespective of the nature of a party’s contribution. Already, the equality principle is a value that is well anchored in the Constitution. For example, the right to equal treatment is provided for under Article 27 prohibiting discrimination on diverse grounds including sex and marital status. Moreover, Article 60 requires that land be held, used and managed equitably and in a manner that eliminates gender discrimination in law, customs and practices relating to land and property in land.

10.3.2 Matrimonial Property Act 2013 In order to ensure the realisation of the principles of equality76 and nondiscrimination,77 the Constitution mandates Parliament to enact a law to regulate the recognition and protection of matrimonial property and specifically the matri [2014] eKLR. Article 45, Constitution of Kenya (2010). 77 Article 60, Constitution of Kenya (2010). 75 76

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monial home during the subsistence and on termination of the marriage.78 Parliament has in discharging this mandate enacted the Matrimonial Property Act79 providing the rights and responsibilities of spouses in relation to matrimonial property. According to the Act, matrimonial property means the matrimonial home or homes, household goods and effects therein or any other immovable and movable property jointly owned and acquired during the existence of the marriage.80 However, this does not include property held under a trust including customary trusts.81 Matrimonial property vests in the spouses in accordance with the contribution of either spouse towards its acquisition and is to be divided between them on divorce or any other dissolution of the marriage.82 The Act defines contribution to mean monetary and non-monetary contribution and to include (a) domestic work and management of the matrimonial home; (b) child care; (c) companionship; (d) management of family business or property; and (e) farm work.83 The law does not provide for equal division of martial property upon divorce but each spouse is to receive their portion of the property in accordance with their “contribution” toward its acquisition. Clearly, and looking at the cases discussed above such as Pettit, Kamore, Nderitu and Echaria, the law marks a significant leap backwards in securing the property rights of spouses. It imposes on the spouses the burden of proving their respective contributions, which, as explained earlier, is an arduous task. As was the case with MWPA 1882, courts have the duty to determine what amounts to contribution and the respective entitlements of the parties to matrimonial property.84 The recognition of non-monetary contributions is a significant attempt at valuing the contributions of spouses who may not be working or who carried out domestic and other family businesses. Recognition of non-monetary contributions can be interpreted as a recognition of marriage as a social relationship. A relationship that confers a certain status on the parties to it, and equality even in the division of property, irrespective of a party’s financial contributions to the union. Looking at non-monetary contribution in this sense could perhaps help explain why the Constitution looks at marriage through an equality lens.

80 81 82 83 84 78 79

Article 68, Constitution of Kenya (2010). Act No. 49 of 2013. Section 6, Matrimonial Property Act (Act No. 49 of 2013). Section 6(2), Matrimonial Property Act (Act No. 49 of 2013). Section 7, Matrimonial Property Act (Act No. 49 of 2013). Section 2, Matrimonial Property Act (Act No. 49 of 2013). Section 17(1), Matrimonial Property Act (Act No. 49 of 2013).

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Matrimonial property may also vest in the parties according to any agreements that they may enter into before the marriage.85 However, such agreements, whether prenuptial or ante-nuptial, may be set aside by the court on application by a party on the grounds of fraud, coercion or the agreement being manifestly unjust.86 Previously, prenuptial and postnuptial agreements were recognised under the Matrimonial Causes Act87 and courts have recognised them.88 On the dissolution of a polygamous marriage, the man and the first wife are to retain the matrimonial property acquired by them before the man married the other wife. Property acquired by the man after marrying the second wife is deemed as being owned by the man and the wives taking into account the contribution by the man and the wives.89 However, it may be agreed that a wife will have her matrimonial property with the husband separate from that of the other wives and such a wife will own that property equally with the husband without participation of the other wives.90 The law recognises separate property. Separate property is property acquired by a spouse before or during the course of the marriage and such property does not form part of the matrimonial property.91 Marriage does not affect the ability of the spouses to own property other than matrimonial property to which either of them may be entitled.92 Their right to acquire, hold or dispose of such property is not affected by the marriage subject to the Act and any agreements they entered into before the marriage.93 In addition, any immovable or movable property acquired or inherited before marriage does not form part of the matrimonial property.94 However, where the other spouse contributes towards the improvement of such property, they may acquire an interest in the property equal to the contribution made.95 Here, the law reverses the decision in Pettit v Pettit which had held that a beneficial interest could not vest merely by carrying out improvements on the property acquired and registered in the name of the other spouse. 87 88 89 90 91 92 93 94 95 85 86

Section 6(3), Matrimonial Property Act (Act No. 49 of 2013). Section 6, Matrimonial Property Act (Act No. 49 of 2013). Section 28, Matrimonial Causes Act, (Chapter 152 Laws of Kenya, Repealed). C Y C v K S Y [2014] eKLR. Section 8(1)(b), Matrimonial Property Act (Act No. 49 of 2013). Section 8(2), Matrimonial Property Act (Act No. 49 of 2013). Section 13, Matrimonial Property Act (Act No. 49 of 2013). Section 13, Matrimonial Property Act (Act No. 49 of 2013). Section 13, Matrimonial Property Act (Act No. 49 of 2013). Section 5, Matrimonial Property Act (Act No. 49 of 2013). Section 9, Matrimonial Property Act (Act No. 49 of 2013).

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Where a spouse incurs liability in the acquisition of property before marriage, the liability remains as the liability of that spouse after the marriage.96 However, where the property becomes matrimonial property and the liability was reasonably and justifiably incurred, the liability is shared equally by the spouses unless they otherwise agree.97 Spouses are to share equally any liability incurred in the course of the marriage for the benefit of the marriage and any reasonable and justifiable expense incurred for the benefit of the marriage.98 However, a spouse is not liable just by the virtue of marriage for any personal debt incurred by the other spouse before the marriage99 as they have equal status.100 During the division of matrimonial property between and among spouses, the customary laws of the communities concerned must be taken into account.101 These customary laws include those: on dissolution of marriage, principles on protection of the rights of future generations to community and ancestral land102 and those on access and utilisation of ancestral land and the cultural home by a wife or former wife have to be considered. However, this is subject to the values and principles of the Constitution.103 The Act makes specific provisions for the protection of matrimonial property against misuse by any spouse to the detriment of the other.104 This is in response to the instances where one spouse would deal with matrimonial property to the detriment of the other spouse. Under the Act, no estate or interest in any matrimonial property may be disposed in any form, for example, gift, lease or mortgage during the course of a monogamous marriage without the consent of both spouses.105 The matrimonial home may not be mortgaged or leased without the written and informed consent of both spouses.106 Such a charge that is secured on matrimonial property without the consent of the other spouse is void. A spouse in a monogamous marriage or the man and any of the wives in a polygamous marriage have an interest in the matrimonial property and can protect 98 99 96 97

102 103 104 105 106 100 101

Section 10(1), Matrimonial Property Act (Act No. 49 of 2013). Section 10(2), Matrimonial Property Act (Act No. 49 of 2013). Section 10(3), Matrimonial Property Act (Act No. 49 of 2013). Section 16, Matrimonial Property Act (Act No. 49 of 2013). Section 4, Matrimonial Property Act (Act No. 49 of 2013). Section 11, Matrimonial Property Act (Act No. 49 of 2013). Article 63, Constitution of Kenya (2010). Section 11, Matrimonial Property Act (Act No. 49 of 2013). Section 12, Matrimonial Property Act (Act No. 49 of 2013). Section 12(1), Matrimonial Property Act (Act No. 49 of 2013). Section 12(5), Matrimonial Property Act (Act No. 49 of 2013).

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such an interest through a caveat, caution or other way as provided by the law on registration.107 A spouse may not be evicted from the matrimonial home by or at the instance of the other spouse during the continuity of the marriage except in accordance with a court order.108 However, they may be evicted during the execution of a decree of sale or by a trustee in bankruptcy or by a mortgagee or chargee in exercising the power of sale or other legal remedy.109 There are a number of presumptions as to property acquired during marriage that have been legislated. For example, if matrimonial property is acquired in the course of marriage and registered in the name of one spouse, as was the case in Tabitha Wangechi Nderitu v Simon Nderitu Kariuki,110 it is presumed to be held in trust for the other spouse.111 Where it is registered in the names of the spouses jointly, as was the case in Kivuitu v Kivuitu,112 it is presumed that their beneficial interests are equal.113 However, these presumptions are rebuttable.114 Any property given by one spouse to the other during the marriage is presumed to thereafter belong to the recipient absolutely although this presumption is rebuttable.115 The presumption of advancement can be rebutted by showing evidence to the contrary as was the case in Mutiso v Mutiso,116 where the husband, while in prison, had transferred land to wife and the wife claimed that transfer was a gift to her. She urged the court to find that the property was transferred to her absolutely. However, evidence showed that the husband was not ready and willing on his free will to transfer the land absolutely to the wife. He had given a power of attorney to the wife but eventually agreed to transfer the land on the promise that it would be transferred back to him when he came out of prison. The transfer was to enable the wife to raise money to clear debts and to properly manage the farm. The Court of Appeal held that the husband had transferred the land to the wife to be held in trust for him and to enable the wife raise money to pay the debts and properly manage the farm. It further stated that the transfer was not absolute even though the term ‘gift’ had been used: ‘The words “as a gift” may have been inserted in the transfer 109 110 111 112 113 114 115 116 107

108

Land Registration Act (Act No. 3 of 2012). Section 12(3), Matrimonial Property Act (Act No. 49 of 2013). Section 12(4), Matrimonial Property Act (Act No. 49 of 2013). [1998] eKLR. Section 14(a), Matrimonial Property Act (Act No. 49 of 2013). [1991] 2 KAR 241. Section 14(b), Matrimonial Property Act (Act No. 49 of 2013). Section 14, Matrimonial Property Act (Act No. 49 of 2013). Section 15, Matrimonial Property Act (Act No. 49 of 2013). [1998] eKLR.

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only for convenience since there was no other consideration.’ The result, according to the Court, was the creation of a trust instead of the presumption of advancement taking effect: ‘A resulting trust was created in the transfer. For a presumption of advancement to be inferred, the intention of the parties must be clear untainted with any irregularities fraud or duress.’ A person may make an application to a court seeking a declaration of rights to any property contested between them and their spouse or former spouse.117 The application may be made as part of a petition in a matrimonial cause and may be made even where a petition has not been filed under any law on matrimonial causes.118 The procedure for application and the forms to be used are to be made by the Rules Committee under the Civil Procedure Act.119 The Matrimonial Property Act allows persons who profess the Islamic faith to elect on which jurisdiction to submit their matters, Islamic law or the Act.120 This section has been given judicial interpretation in SHH v MHY121 and held to be in tandem with Article 170(5) of the Constitution which provides for the jurisdiction of the Kadhi’s Court. The court noted that: A party who professes the Muslim faith may opt not to submit to the jurisdiction of the Kadhi’s court as the plaintiff herein has done by bringing her suit before this court. And while the Matrimonial Property Act does not define the term “court”, there is no provision in the Act to oust the unlimited original jurisdiction of the High Court in adjudicating matters falling thereunder. (See Article 165 (3) a) of the Constitution).

10.3.3 Is the Matrimonial Property Act 2013 constitutional? There are some who have argued that Article 45(3) of the Constitution entitles spouses to equal rights at the time of marriage, during and at dissolution of the union, thus asserting that the Matrimonial Property Act, especially section 8 which vests matrimonial property in the spouses according to their respective contribution in its acquisition, is unconstitutional.122 One way to reconcile Article 45(3) of the Constitution on equality and the Matrimonial Property Act provisions on contribution could be to take the following approach. 119 120 121 122 117 118

Section 17(1), Matrimonial Property Act (Act No. 49 of 2013). Section 17(2), Matrimonial Property Act (Act No. 49 of 2013). Chapter 21, Laws of Kenya. Section 3, Matrimonial Property Act (Act No. 49 of 2013). [2015] eKLR. Harod Ayodo, ‘Confusion over Kenya’s matrimonial law’ http://www.standardmedia.co.ke/lifestyle/ article/2000168543/confusion-over-kenya-s-matrimonial-property-law on 14 December 2016.

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As a matter of principle, courts hearing a matrimonial property dispute, could at the first instance, take the position that each spouse irrespective of their contributions in the acquisition of the property have equal rights-50:50 under Article 45(3) based on the fact of marriage. Such an approach or what is called a jurisprudence of equality has received judicial approval in the Supreme Court of Ghana in Mensah v Mensah123 where the judges ruled as follows: We believe that, common sense, and principles of general fundamental human rights requires that a person who is married to another, and performs various household chores for the other partner like keeping the home, washing and keeping the laundry generally clean, cooking and taking care of the partner’s catering needs as well as those of visitors, raising up of the children in a congenial atmosphere and generally supervising the home such that the other partner, has a free hand to engage in economic activities must not be discriminated against in the distribution of properties acquired during the marriage when the marriage is dissolved. This is so because, it can safely be argued that, the acquisition of the properties were facilitated by the massive assistance that the other spouse derived from the other. In such circumstances, it will not only be inequitable, but also unconstitutional as we have just discussed to state that because of the principle of substantial contribution which had been the principle used to determine the distribution of marital property upon dissolution of marriage in the earlier cases decided by the law courts, then the spouse will be denied any share in marital property, when it is ascertained that he or she did not make any substantial contributions thereof.

The above passage reminds of the obiter dicta of Omollo JJA in Kivuitu v Kivuitu,124 cited above in extenso. The prima facie position can then be upset by way of evidence that can disturb the equality principle. Evidence that a court can receive at this stage is one showing both monetary and non-monetary contributions in the acquisition of property. This would take into account the concern raised by the High Court in UMM v IMM125 that to decree ‘…an automatic 50:50 sharing could imperil the marriage institution. It would give opportunity to a fortune seeker to contract a marriage, sit back without making any monetary or non-monetary contribution, distress the union and wait to reap half the marital property.’ By adopting such an approach, one would satisfy the equality principle in Article 45 that seeks to entitle each spouse equal rights in the ownership of matrimonial property while the contribution provisions of the Act would be a recognition that in practice some spouses do more than others and should therefore not be [2012] SC, AD 2012, 9. [1991] 2 KAR 241. 125 [2014] eKLR. 123 124

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oppressed by having their share go to those who ‘…sit back without making any monetary or non-monetary contribution, distress the union and wait to reap half the marital property.’126 In adopting this approach, the default position would be to take the view that each is entitled to a 50:50 share of the property, and then take evidence of contribution, if any, separate ownership, pre-nuptial or post-nuptial agreement or a different proportion of ownership, to determine whether the shares should be varied. Although non-financial contribution, may be difficult to prove, the court can, based on the evidence before it, determine whether a spouse will be entitled to more or less and ensure that the applicability of the equality principle does not occasion an injustice. To deal with situations where the equality principle may bring an injustice, the Supreme Court of Ghana, in Boafo v Boafo,127 affirmed its earlier decision in Mensah v Mensah (1998)128 where it established the principle of equality is equity in dividing matrimonial property. The Mensah v Mensah (1998) decision was also affirmed in Mensah v Mensah (2012). The Court in Boafo v Boafo129 stated that, On the facts of Mensah v. Mensah [1998] (supra), the Supreme Court (per Bamford-Addo JSC) held that equal sharing was what would amount to a “just and equitable” sharing. The view of Denning LJ (as he then was), in Rimmer v. Rimmer [1952] 1 QB 63 at 73 that on the facts of that case equality is equity seems to have inspired the learned Supreme Court Judge’s approach. … Denning LJ’s view was that where it is clear that the matrimonial home or furniture common use belongs to one or the other of the married couple, then the courts would respect the proprietary rights of the particular spouse. But where it not clear to whom the beneficial interest belongs or in what proportions, then the equitable maxim of equality is equity would be applied. The spirit of Bamford-Addo JSC’s judgment in Mensah v. Mensah appears to be that the principle of the equitable sharing of joint property would ordinarily entail applying the equitable principle, unless one spouse can prove separate proprietorship or agreement or a different proportion of ownership.

This approach would take into account the principle of equality and also appreciate that dividing the property equally in some instances would be inequitable.

128 129 126 127

UMM v IMM [2014] eKLR. [2005-2006] SCGLR 705. [1998-99] SCGLR, 350. [2005-2006] SCGLR 705.

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10.4 Protection of matrimonial property under the land laws

10.4.1 Land Act, 2012 The Land Act 2012, has provisions touching on matrimonial property. It defines marriage as a civil, customary or religious marriage and matrimonial property as any property owned or leased by one or both spouses and occupied by the spouses as their family home.130 It provides that the National Land Commission and any state or public officer shall be guided by values and principles including equitable access to land and elimination of gender discrimination in land laws, customs and practices.131 Under the Act, a matrimonial home may not be charged without the execution of the documents by or consent of any spouse living there132 and the spouse is entitled to receive a notice of sale from the lender in the event of default.133 The spouse also has a right to apply for relief against any action of the lender as a consequence of default134 and the court is empowered to reopen a charge, irrespective of the amount, on the matrimonial home in the interest of doing justice between the parties.135 Emukule J in Kipsigis Farm Enterprises v Stephen Ngerechi & 2 others136 stated that: ‘…Section 79 of the Land Act provides that where a charge is taken upon a matrimonial home, the consent of both spouses must be obtained for the transaction to be deemed valid. Section 79…is intended to protect a spouse from dealings by the other involving the matrimonial home without her knowledge or consent.’

Where land is registered jointly, the Act prescribes that on the death of a joint tenant, his/her name will be deleted from the register137 and the surviving joint tenant becomes the sole registered owner.138 This applies to a joint registration of the spouses. If the land is compulsorily acquired, the spouse of the registered holder is included as one of the interested persons entitled to the preliminary notice.139 The spouse will also be entitled, as an interested party, to receive award of compensation based on his/her interest.140 132 133 134 135 136 137 138 139 140 130 131

Section 2, Land Act (Act No. 6 of 2012). Section 4(2), Land Act (Act No. 6 of 2012). Section 79(3), Land Act (Act No. 6 of 2012). Section 96(3), Land Act (Act No. 6 of 2012). Section 103(3), Land Act (Act No. 6 of 2012). Sections 105 – 106, Land Act (Act No. 6 of 2012). [2014] eKLR. Section 49, Land Act (Act No. 6 of 2012). Section 91(4) – (5), Land Act (Act No. 6 of 2012). Section 107(7), Land Act (Act No. 6 of 2012). Section 113, Land Act (Act No. 6 of 2012).

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10.4.2 Land Registration Act, 2012 The Land Registration Act141 also contains provisions for the recognition and protection of matrimonial property. Under the Act, any land obtained by a spouse to be co-owned and used by both or all spouses is presumed and registered as joint property unless otherwise expressly provided.142 This has to be done in line with the Matrimonial Property Act.143 Where land is registered in the name of one spouse and the others make a contribution, they are deemed to have become owners in common and their interest recognised as if they were registered.144 If the registered spouse makes a disposition individually, it is the duty of the chargee, assignee or transferee to inquire whether the other spouses have consented.145 The disposition is void at the option of the spouses who have not consented.146 This curbs situations where one party to a marriage deals with matrimonial property without the consent of the other. Therefore, the Act seeks to ensure that the spouse who has no notice of such transactions is protected. In the case of partitioning a tenancy in common, the Act requires the Registrar to pay regard to factors including whether the interests of the dependants of tenants in common who are spouses will be adequately catered for.147 The Registrar may make orders in such an instance as he/she considers just and reasonable.148 The Act further prescribes that every proprietor shall at the time of acquiring any land, lease or charge be deemed to have had notice of every entry in the register relating to such at the time of acquisition.149 The entries in a register may include restraints on dispositions, for example, cautions, restrictions or inhibitions. These are the options available to a spouse who wants to restrain any dealing in the matrimonial land. They may prevent any disposition of matrimonial property without consent of all parties to the marriage. An inhibition may be obtained by application to the court.150 A caution may be lodged with the Registrar by any individual entitled to a right over the land in question. The caution prevents any dealing 143 144 145 146 147 148 149 150 141 142

Act No. 3 of 2012. Section 93(1), Land Registration Act (Act No. 3 of 2012). Act No. 49 of 2013. Section 93(2), Land Registration Act (Act No. 3 of 2012). Section 93(3), Land Registration Act (Act No. 3 of 2012). Section 93(4), Land Registration Act (Act No. 3 of 2012). Section 94(3)(e), Land Registration Act (Act No. 3 of 2012). Section 94(4), Land Registration Act (Act No. 3 of 2012). Section 29, Land Registration Act (Act No. 3 of 2012). Section 68, Land Registration Act (Act No. 3 of 2012).

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in the land which will be detrimental to their right.151 A restriction is an order of the Registrar preventing fraudulent or improper dealings in land.152 A spouse can therefore use these tools to prevent any dealings detrimental to spousal rights over the matrimonial land.

10.5 International law Kenya has ratified various international human rights instruments153 in its capacity as a member of the community of nations. These instruments and the general rules of international law become part of Kenyan law pursuant to Article 2(5) and (6). Some of these instruments regulate matrimonial property by providing for non-discrimination on the basis of marital status and gender. Kenyan courts have applied these instruments in making their decisions.154 In Mary Rono v Jane Rono & Another,155 the Court of Appeal said as follows: As a member of the international community, Kenya subscribes to international customary laws and has ratified various international covenants and treaties. In particular, it subscribes to the International Bill of Rights, which is the Universal Declaration of Human Rights (1948) and two international human rights covenants: the Covenant on Economic, Social and Cultural Rights and the Covenant on Civil and Political Rights (both adopted by the UN General Assembly in1966). In 1984 it also ratified, without reservations, the Convention on the Elimination of All Forms of Discrimination Against Women, in short, “CEDAW”. Article 1 thereof defines discrimination against women as: -“Any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social cultural, civil or any other field.

The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) was entered into by state parties in order to ensure that the rights Section 71, Land Registration Act (Act No. 3 of 2012). Section 76, Land Registration Act (Act No. 3 of 2012). 153 They include: International Covenant on Social, Economic and Cultural Rights, 16 December 1966, 993 UNTS 3; African Charter on Human and Peoples’ Rights, 27 June 1981, 1520 UNTS 217; and Convention on the Elimination of All Forms of Discrimination against Women, 18 December 1979, 1249 UNTS 13. 154 This has been seen in cases like, Mary Rono v Jane Rono & Another [2005] eKLR, In the matter of Zipporah Wambui Mathara[2010] eKLR, Beatrice Wanjiku & Another v The Attorney General & Another [2012] eKLR, David Njoroge Macharia v Republic [2011] eKLR, and RMM v BAM [2015] eKLR. 155 [2005] eKLR. 151 152

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of women are protected from discriminatory practices. The Convention notes, in its preamble, that in situations of poverty, women have the least access to food, health and other needs. It also highlights their contribution to the welfare of the family and the fact that this has not been fully recognised in law and policy and goes ahead to mandate state parties to eliminate discriminatory practices in political, economic and social life in order to eliminate this discrimination. It requires the state parties to accord women equality with men before the law and that women be given equal rights to administer property.156 The Universal Declaration of Human Rights provides that every individual has the right to own property alone or in association with others and that the right shall not be arbitrarily deprived.157 It also provides that all are equal before the law and are entitled to equal protection before the law without any discrimination.158 On family and marriage, the Declaration makes provisions entitling the spouses to equal rights during and at the dissolution of the marriage.159 The International Covenant on Economic, Social and Cultural Rights also prohibits discrimination on the basis of sex or other status.160 This implies that an individual may not be denied ownership of property on the basis of gender. The African Charter of Human and Peoples’ Rights, otherwise known as the Banjul Charter, which Kenya ratified in 1992 without reservations, also contains provisions on matrimonial property. The Charter enjoins member States, to, inter alia, ‘…ensure the elimination of every discrimination against women and also ensure the protection of rights of the woman and the child as stipulated in international declarations and conventions.’161 States are to ensure that there is no discrimination during the subsistence of a marriage or on dissolution, and spouses are entitled to equal rights to the matrimonial property.

10.6 Emerging issues In the United States of America, there has arisen a question as to whether educational degrees, professional licenses or careers are property subject to dis 158 159 160 161 156 157

Article 15, Convention on the Elimination of All Forms of Discrimination against Women. Article 17, Universal Declaration of Human Rights, 10 December 1948, 217 A (III). Article 7, Universal Declaration of Human Rights. Article 16, Universal Declaration of Human Rights. Article 2, Constitution of Kenya (2010). Article 18, International Covenant on Social, Economic and Cultural Rights.

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tribution on divorce.162 The majority of court decisions have taken the view that such is not property. For example, in Simmons v Simmons,163 a medical degree was held not to be part of matrimonial property. A rather interesting decision is found in the case of Re Marriage of Graham,164 where the wife was in full-time employment as an airline stewardess for a period of six years, during which she financed her husband’s undergraduate and MBA degrees. Upon divorce, she petitioned for a share in the monetary value of the MBA degree. The Boulder County District Court awarded her forty percent of the statistically-anticipated future earnings of the degree. It took into account the fact that she used to work forty hours per week while her husband studied forty hours and worked for twenty hours per week. In its opinion, ‘…an education obtained by one spouse during a marriage is jointly owned property to which the other spouse has a property right.’165 However, this position was reversed by the Colorado Court of Appeals, stating that the education was not in itself ‘property’ but was one of the things to be taken into account in ensuring that the division of property was equitable. The Supreme Court of Colorado affirmed the holding of the Court of Appeal and stated that the degree is, ‘…personal to the holder...and is simply an intellectual achievement that may potentially assist in the future acquisition of property. In our view it has none of the attributes of property in the usual sense of that term.’166

This decision seems to be revolving around the question whether human abilities can be considered property capable of private ownership, and the difficulty in valuing education.167 However, in New York, degrees are considered property subject to distribution. The contribution of a spouse to the career or career potential of the other spouse is one of the things subject to distribution. In O’Brien v O’Brien,168 the facts were fundamentally similar to those of Re Marriage of Graham,169 and the New York Court of Appeals awarded to the wife an amount representing forty percent of the value of her husband’s medical license. The Court did not find any difficulty rendering the decision. On the question of whether the license was property, the 164 165 166 167 168 169 162 163

Sprankling, Understanding property law, 151. 708 A. 2d 949 (Conn. 1998). 574 P. 2d 75 (Colo. Ct. App. 1978). Aalberts RJ, Real estate law, 9ed, Cengage Learning, Stamford CT, 2015, 46. 574 P. 2d 75, 77 (Colo. 1978). Sprankling, Understanding property law, 152. 489 N.E.2d 712 (N.Y. 1985). 574 P. 2d 75 (Colo. Ct. App. 1978).

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court took the view that New York law had created a ‘new species of property’ unknown at common law.170 Other states do not deem degrees as property but award ‘reimbursement alimony’ to the contributing spouse for the economic sacrifices made.171 Academic discourse on the matter highlights the injustice visited upon women generally especially when degrees and other human capital are not deemed matrimonial property,172 yet most young families invest in education as opposed to tangible property to enhance the career potential of the man in the family.173 This is in line with the dissenting opinion of Carringan J in Re Marriage of Graham174 which states that ‘As a matter of economic reality the most valuable asset acquired by either party during this six year marriage was the husband’s increased earning capacity.’175 Therefore, assigning it to the professional spouse, who is in most cases the husband, is detrimental to the other spouse.176 Our view is that if such academic qualifications are acquired during marriage, using proceeds from one or either spouse, then upon divorce the educated spouse should be able to pay a certain percentage to the other spouse. Law should also regard non-monetary contribution to the acquisition of the academic qualifications, such as companionship and moral support accorded to the studying spouse, as critical factors in determining the percentage to be paid to the other spouse. Kenyan legislation and courts have not addressed this issue. However, it is only a matter of time before such disputes come before our courts.

Sprankling, Understanding property law, 153. Sprankling, Understanding property law, 153. See Re Marriage of Francis 442 N.W.2d 59 (Iowa 1959) and Mahoney v Mahoney 453 A.2d 527 (N.J. 1982). 172 Sprankling, Understanding property law, 154. See also Weitzman L, ‘The economics of divorce: Social and economic consequences of property, alimony and child support awards’ 28 University of California Los Angeles Law Review (1981), 1181. 173 Berger C and Williams J, Property: Land ownership and use, 4ed, Aspen Law & Business, New York, 1997, 468. 174 574 P. 2d 75 (Colo. Ct. App. 1978). 175 574 P. 2d 78 (Colo. Ct. App. 1978). 176 Sprankling, Understanding property law, 154. 170 171

Chapter Eleven

MANAGEMENT OF LAND IN KENYA

11.0 Introduction For land to serve its primary role in national and regional development, there is need for efficient and effective land management systems.1 Land management refers to the establishment of goals and mechanisms to influence land use so as to achieve desired policy objectives.2 A proper land management system acts like an engine for the functioning of property systems. It facilitates effective allocation of land rights, resolution of land disputes and offers safeguards for protecting land rights. Land management usually takes a multidisciplinary approach, involving experts from a wide array of fields. In Kenya, there are policy, legal and institutional frameworks that undergird land management. Law establishes institutions charged with land management, determines the extent of land rights and is also important in the management of other resources found on land.3 However, legal frameworks on land have faced and continue to face numerous challenges. This chapter discusses land management in Kenya. It discusses all the three categories of land: public, private and community. For each category of land, the chapter highlights what the management challenges have been; land reforms that

2 3

Africa Union, African Development Bank and United Nations Economic Commission for Africa, Framework and guidelines on land policy in Africa, land policy in Africa: A framework to strengthen land rights, enhance productivity and secure livelihoods, 2010, 39. Republic of Kenya, Sessional paper no. 3 of 2009 on national land policy, 2009, para 43. Land is defined in Article 260, Constitution of Kenya (2010), to include, the surface of the earth and the subsurface rock; any body of water on or under the surface; marine waters in the territorial sea and exclusive economic zone; natural resources completely contained on or under the surface; and the air space above the surface.

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have sought to address those challenges over time; and how the current land regime has addressed the identified land management challenges. Therefore, Chapter 8 offers a proper background for this chapter.

11.1 Public land management Public land management and administration has faced many challenges of poor governance owing to institutional and legal inadequacies creating inefficiency.4 It is reported that land administration and management institutions were highly centralised, complex and exceedingly bureaucratic resulting in corruption and inefficiency in service delivery.5 Reforms in the land sector have thus sought to remedy this state of affairs. To restructure the regime for the management of public lands, the National Land Policy proposed a raft of measures.6 The reforms proposed by the National Land Policy informed the provisions of the Constitution relating to land including the devolution of land management and administration. In managing public land on behalf of the national and county governments section 8 of the Land requires the National Land Commission to: identify public land, prepare and keep a database of all public land, which shall be geo-referenced and authenticated by the statutory body responsible for survey;

evaluate all parcels of public land based on land capability classification, land resources mapping consideration, overall potential for use, and resource evaluation data for land use planning; and

Njuguna HK and Baya MM, ‘Land reforms in Kenya: An Institute of Surveyors of Kenya (ISK) initiative’ http://www.fig.net/resources/proceedings/fig_proceedings/korea/full-papers/pdf/session7/njuguna-baya.pdf on 5 June 2015. 5 Republic of Kenya, Sessional paper no. 3 of 2009 on national land policy, para 228. 6 Republic of Kenya, Sessional paper no. 3 of 2009 on national land policy, para 61, states that to secure tenure to public land, the Government shall: a) Repeal the Government Land Act (Cap 280); b) Identify and keep an inventory of all public land and place it under the National Land Commission to hold and manage in trust for the people of Kenya; c) Rationalize public land holding and use; d) Establish an appropriate fiscal management system to discourage land speculation and mobilize revenue; e) Establish mechanisms for the repossession of any public land acquired illegally and irregularly; f) Establish participatory and accountable mechanisms for the allocation, development and disposal of public land by the NLC; and g) Establish an appropriate system for registering public institutional land. 4

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share data with the public and relevant institutions in order to discharge their respective functions and powers under this Act; or

require land to be used for specified purposes and subject to such conditions, covenants, encumbrances or reservations as are specified in the relevant order or other instrument.

Land may be converted from one category to the other.7 Public land may be converted to private land by allocation.8 Public land may also be converted to community land subject to public needs or in the interest of defence, public safety, public order, public morality, public health, or land use planning.9 Private land may be converted to public land by compulsory acquisition, reversion of leasehold interests to the government after the expiry of a lease, through transfers or surrender.10 Community land can be converted to either private or public land in accordance with the law relating to community land enacted pursuant to Article 63(5) of the Constitution.11 The National Land Commission is to keep a register containing particulars of land converted from one category to the other.12 Substantial transactions involving the conversion of public land to private land must be approved by the National Assembly or county assembly as the case may be.13 The National Land Commission is to make regulations prescribing substantial transactions that require such approval.14 Public agencies, statutory bodies and state-corporations in occupation or use of public land are to manage the land in the manner prescribed by the Commission.15 This is in realisation of the fact that a large percentage of public land is usually in the hands of these entities. Over time such lands have been mismanaged and lost through land grabbing and illegal and irregular allocation. (a) Allocation of public land Allocation of public land must follow the methods prescribed in Section 12 of the Act. That is through public auction where public land is auctioned to the highest bidder at the prevailing market value; application confined to a targeted group of persons or groups in order to ameliorate their disadvantaged position; public 9 7 8

12 13 14 15 10 11

Section 9(1), Land Act (Act No. 6 of 2012). Section 9(2)(a), Land Act (Act No. 6 of 2012). Section 9(2)(b), Land Act (Act No. 6 of 2012). Section 9(2)(c), Land Act (Act No. 6 of 2012). Section 9(2)(d), Land Act (Act No. 6 of 2012). Section 4, Land Act (Act No. 6 of 2012). Section 9(3), Land Act (Act No. 6 of 2012). Section 5(a), Land Act (Act No. 6 of 2012). Section 10, Land Act (Act No. 6 of 2012).

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notice of tenders; public drawing of lots; public request for proposals and; public exchange for equal value as may be prescribed.16 Safeguards must be put by the Commission to ensure that public land that is allocated does not fall within the following categories:17 (i) public land that is subject to erosion, floods, earth slips or water logging; (ii) public land that falls within forest and wild life reserves, mangroves, and wetlands or fall within the buffer zones of such reserves or within environmentally sensitive areas; (iii) public land that is along watersheds, river and stream catchments, public water reservoirs, lakes, beaches, fish landing and riparian areas and the territorial sea as may be prescribed; (iv) public land that has been reserved for security, education, research and other strategic public uses as may be prescribed; and (v) natural, cultural, and historical features of exceptional national value falling within public lands; (vi) reserved land; or (vii) any other land categorised as such, by the Commission, by an order published in the Gazette.

Such safeguards and the prohibition on allocation of these categories of land are important from an ecological perspective but also from the fact that it aims at remedying a common phenomenon in the past where such lands were often allocated to private persons contrary to the public interest. In managing public land, the National Land Commission must also set aside land for investment purposes upon the request of the national or a county government.18 However, the Commission must ensure that those investments benefit local communities and their economies.19 Subject to the Constitution and any other law, the Commission may, in consultation with the national and county governments, allocate land to foreign governments on a reciprocal basis in accordance with the Vienna Convention on Diplomatic Relations.20 Under the Vienna Convention on Diplomatic Relations the receiving state is required to either ‘facilitate the acquisition on its territory, in accordance with its laws, by the sending State of premises necessary for its mission or assist the latter in obtaining accommodation in some other way.’21 18 19 20 21 16 17

Section 12(1), Land Act (Act No. 6 of 2012). Section 12(2), Land Act (Act No. 6 of 2012). Section 12(3), Land Act (Act No. 6 of 2012). Section 12(4), Land Act (Act No. 6 of 2012). See also Article 66(2), Constitution of Kenya (2010). Section 12(5), Land Act (Act No. 6 of 2012). Article 21(1), Vienna Convention on Diplomatic Relations, 18 April 1961, 500 UNTS 95.

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Public land cannot be allocated unless it has been planned, surveyed and serviced, and guidelines for its development prepared in accordance with section 17 of this Act.22 Allocated public land must not be sold, disposed of, subleased, or subdivided unless it is developed for the purpose for which it was allocated,23 to avoid some of the problems highlighted by the Ndungu Report on illegal and irregular transactions over public land before fulfilling the terms and conditions in the grant or letter of allotment. Where the land allocated is not developed in accordance with the terms and conditions stipulated in the lease, that land must automatically revert to the national or county government, as the case may be.24 In the allocation of public land that is reverting to the government after expiry of the leasehold tenure, the National Land Commission has to offer the immediate past leaseholder, who is a Kenyan citizen, the pre-emptive rights to allocation of the land as long as the lessee is a Kenyan citizen and the land is not required by the government for public purposes.25 The Commission is empowered in this regard to make rules on the procedure for applying for extension of leases before expiry, the factors to be considered in determining extension, the stand premium and other rates payable and other covenants and conditions to be adhered to by the lessee.26 The Commission is under an obligation to notify the public and interested parties at least thirty days before offering any land for allocation.27 The notice must indicate the terms, covenants, conditions and reservations to be included in the conveyance document and the method of allocation.28 The notice has to provide a period of fifteen days from the date of issue in order for the public and interested parties to comment.29 The Commission must also notify the governor in whose county the public land is proposed to be allocated and the head of the governing body of any administrative subdivision having development control or other land use regulatory responsibility in the area.30 The notice sent to the governor must be sent to interested parties including adjoining land owners, persons on actual oc Section 12(7), Land Act (Act No. 6 of 2012). Section 16 deals with placing of care, control and management of reserved public land on a statutory body, public corporation or a public agency for the same purpose as that for which the relevant public land is reserved. 23 Section 12(8), Land Act (Act No. 6 of 2012). 24 Section 12(9), Land Act (Act No. 6 of 2012). 25 Section 13(1), Land Act (Act No. 6 of 2012). 26 Section 13(2), Land Act (Act No. 6 of 2012). 27 Section 14(1), Land Act (Act No. 6 of 2012). 28 Section 14(2), Land Act (Act No. 6 of 2012). 29 Section 14(3), Land Act (Act No. 6 of 2012). 30 Section 14(4), Land Act (Act No. 6 of 2012). 22

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cupation of the land, including marginalised communities and groups living in the general vicinity of the land proposed for allocation, and boards of cities and municipalities and town administrators in the general vicinity.31 It must be published in the Gazette and at least once a week for a period of three weeks and thereafter published in a newspaper of general circulation in the general vicinity of the land intended to be allocated.32 The following must be contained in the notice: place, date and time of allocation; appraised value of the land; particularised description of each parcel; and must indicate that the terms of allocation are available in the Commission’s offices in Nairobi and its office nearest to the land intended to be allocated.33 Failure to provide the notice according to these requirements constitutes grounds for the Commission to require notification to be done as outlined or to void the allocation on the basis that the notification requirements were not properly adhered to.34 Clearly, this provisions aims at addressing the challenges that have bedevilled public land allocation where the President and Commissioner of Lands, in collusion with Ministry of Land officials, would illegally and irregularly allocate land to their cronies and friends.

11.1.1 Management of other areas considered as public land In managing natural resources found on public land, the Commission is to engage members of local communities in their conservation and ensure that benefits derived from their exploitation are shared with these communities. It is also required to make rules and regulations which may encompass: measures for the protection of critical ecosystems and habitats; incentives for individuals and communities to invest in income-generating natural resource conservation programmes; measures for facilitation of access, use and co-management of forests, water and other resources by communities who have customary rights to such resources; and procedures for registration of natural resources.35 The Commission is to ensure that the exploitation of these resources is done in a sustainable manner and that communities benefit from the extractive activities.36

33 34 35 36 31 32

Section 14(5), Land Act (Act No. 6 of 2012). Section 14(6), Land Act (Act No. 6 of 2012). Section 14(7), Land Act (Act No. 6 of 2012). Section 14(8), Land Act (Act No. 6 of 2012). Section 19, Land Act (Act No. 6 of 2012). See generally Odote C and Otieno S, ‘Getting it right: Towards socially sustainable exploitation of the extractive industry in Kenya’ 1 East African Law Journal (2015).

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The Commission is also vested with the authority of granting licences to persons seeking to use unalienated public land for a period not exceeding five years.37 The Commission may also issue grants to persons subject to conditions which are binding on the grantee.38 Therefore, the Commission is to ensure that the conditions specified in the grants are met by the grantees to avoid instances witnessed in the past where persons were granted public land but failed to meet the grant conditions, hence putting the land to other unauthorised uses or using the land merely as collateral to obtain credit. The Commission has embarked on initiatives meant to ensure that public land is put to proper use. The Commission has sent notices to persons with letters of allotment to submit them for verification. Further, the Commission has also received land inventories from public institutions for documentation.39 (a) Forests Under the Forests Conservation and Management Act the classification of forests is done in line with the land tenure categories so that forests are categorised as public, private or community.40 Public forests include government forests, government game reserves, water catchment areas, national parks, government animal sanctuaries, specially protected areas41 and forests between the high and low water marks.42 Community forests include forests on land lawfully registered in the name of group representatives; forests on land lawfully transferred to a specific community; forests on any other land declared to be community land by an Act of Parliament; forests on land that is lawfully held, managed or used by specific communities as community forests; forests on ancestral lands and lands traditionally occupied by hunter-gatherer communities; and forests lawfully held as trustland by the county governments, but not including any public land held in trust by the county governments under Article 62(2) of the Constitution.43 Private forests are forests on registered land held by any person under any freehold tenure; forests on land held by any person under leasehold tenure; any forest owned privately by an individual, Section 20(1), Land Act (Act No. 6 of 2012). Sections 20 – 26, Land Act (Act No. 6 of 2012). See amendments in Sections 51-53, Land Laws (Amendment) Act (Act No. 28 of 2016). 39 National Land Commission, The progress report March 2013-January 2014. 40 Section 30(1), Forests Conservation and Management Act (Act No. 34 of 2016). 41 Article 62(1)(g), Constitution of Kenya (2010). See also Section 30(2), Forests Conservation and Management Act (Act No. 34 of 2016). 42 Article 62(1)(l), Constitution of Kenya (2010). See also Section 30(2), Forests Conservation and Management Act (Act No. 34 of 2016). 43 Section 30(3), Forests Conservation and Management Act (Act No. 34 of 2016). 37 38

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institution or body corporate for commercial or non-commercial purposes; and forests on any other land declared private land under an Act of Parliament.44 All public forests in Kenya are vested on the Kenya Forest Service (KFS).45 The creation of state forests is done in accordance with section 31(2). On the recommendation of the Board of Directors of the Service, the Cabinet Secretary can, through a notice in the Gazette and after consulting the National Land Commission, declare any unalienated government land or any land purchased or otherwise acquired by KFS to be a public forest.46 Management of public forests is vested on KFS which is required to prepare a management plan to guide the management of these forests.47 KFS is managed by a Board established by the Act.48 In the course of managing these forests, KFS is to involve members of the local communities who derive benefits from the forests.49 Courts have given judicial imprimatur to the need for community involvement in forest management. In the case of Republic v Kenya Forest Service Ex parte Clement Kariuki and 2 others,50 the court held that failure on the part of the Kenya Forest Service to involve members of the public in inviting bids for concessions was contrary to the now repealed Forests Act.51 Administration and management of public forests is also governed by other sectoral laws. The Wildlife Conservation and Management Act52 empowers the Cabinet Secretary, in consultation with the competent authority, to declare an area, by notice in the Gazette, as a national park, or marine protected area and to publish a management plan for national parks, marine protected areas and wetlands. The Environmental Management and Co-ordination Act 1999, is also key in the management of forests in the country, including public forests. The Act requires the National Environment Management Authority, in consultation with the relevant lead agencies, to develop, issue and implement procedures, guidelines and measures for the sustainable use of hillsides, hill tops, mountain areas and forests.53 The National Land Commission must thus work closely with all these agencies to ensure the sustainable management of public land in Kenya.54 46 47 48 49 50 51 52 53 54 44 45

Section 30(4), Forests Conservation and Management Act (Act No. 34 of 2016). Section 31(1), Forests Conservation and Management Act (Act No. 34 of 2016). Section 31(2), Forests Conservation and Management Act (Act No. 34 of 2016). Section 8, Forests Conservation and Management Act (Act No. 34 of 2016). Section 9, Forests Conservation and Management Act (Act No. 34 of 2016). Section 8(d), Forests Conservation and Management Act (Act No. 34 of 2016). [2013] eKLR. Act No. 7 of 2005. Section 31, Wildlife Conservation and Management Act (Act No. 47 of 2013). Section 44, Environmental Management and Coordination Act (Act No. 8 of 1999). Section 10(1), Land Act (Act No. 6 of 2012).

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The Land Act further requires the National Land Commission to take appropriate measures to maintain public land that has endangered species of flora and fauna, critical habitats or protected areas.55 The Commission also has to identify ecologically sensitive areas that are within public lands and demarcate or take any other justified action on those areas and act to prevent environmental degradation and climate change.56 The Commission must ensure that land to be allocated does not fall within forests and wildlife reserves or mangroves or within the buffer zones of such reserves.57 The involvement of various bodies in the management of forests and related resources is likely to lead to a situation of conflict between the bodies. However, the Land Act, in anticipation of this situation, requires the National Land Commission to consult the existing institutions dealing with conservation.58 (b) Wetlands Specially protected areas such as wetlands are part of public land.59 Wetlands are defined in the Convention on Wetlands of International Importance especially as Waterfowl Habitat (Ramsar Convention) as “areas of marsh, fen, peatland or water, whether natural or artificial, permanent or temporary, with water that is static or flowing, fresh, brackish or salt, including areas of marine water the depths of which at low tide does not exceed six meters.”60 Therefore, a common peculiarity of wetlands is that water is at or close to the surface. Protection of wetlands is necessitated by the critical functions these areas play in society. Wetlands contain a wide array of biodiversity including flora and fauna species; maintaining the hydrological cycle; and also being of great social and economic value to local communities who benefit from the wide range of goods and services available from them.61 In Kenya, 57 58 59 60

Section 11(1), Land Act (Act No. 6 of 2012). Section 11(2), Land Act (Act No. 6 of 2012). Section 12(2)(b), Land Act (Act No. 6 of 2012). Section 11(3), Land Act (Act No. 6 of 2012). Article 62(1)(g), Constitution of Kenya (2010). Article 1(1), Convention on Wetlands of International Importance especially as Waterfowl Habitat, 2 February 1971, 996 UNTS 245. 61 Riverine wetlands are those around freshwater, perennial streams comprising the deepwater habitat contained within a channel. It does not include floodplains adjacent to the channel nor habitats with more than 0.5% salinity. Lacustrine wetlands includes those in inland water bodies that are situated in topographic depressions, lack emergent trees and shrubs, have less than 30% vegetation cover, and occupy at least 20 acres. Palustrine are all non-tidal wetlands that are substantially covered with emergent vegetation--trees, shrubs, moss, etc. Water chemistry is normally fresh but may range to brackish and saline in semiarid and arid climates. Estuarine includes wetlands in deepwater tidal habitats with a 55 56

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six wetland types are identifiable, namely: riverine; lacustrine; palustrine; estuaries; marine; and constructed wetlands.62 Despite their importance, wetlands continue to face degradation and depletion largely due to human activities and lack of proper data on wetlands in Kenya. Kenya lacks a clear legal framework on wetlands management and so their management is scattered in about 77 sectoral statutes, policies and legislation.63 This has not been of benefit to wetlands management in the country and their loss and degradation continues unabated. Notable is the fact that EMCA has in section 42 sought to harmonise the management of wetland resources in the country. This section empowers the Cabinet Secretary by providing that he/she ‘...may, by notice in the Gazette, declare a lake shore, wetland, coastal zone or river bank to be a protected area and impose such restrictions as he considers necessary, to protect the lake shore, wetland, coastal zone and river bank from environmental degradation.’64 Therefore, the Management of wetlands under the Act is vested in the Cabinet Secretary, and no other person can purport to exercise the functions on his behalf as was seen in Park View Shopping Arcade v Kang’ethe and 2 others.65 The respondents had entered a piece of land allocated to the appellant on the basis that it was a wetlands and the allocation to the appellant was, therefore, unlawful. The Court of Appeal held that the respondents had thereby taken it upon themselves to declare the environmental status of the suit land, a power which could only be done by the minister as authorised by section 42(2) of the Environmental Management and Co-ordination Act: ‘it is clear that the Defendants/Respondents cannot arrogate the authority to determine standards and modes of environmental protection at the suit land. They have sought to usurp the functions of the Minister, and this must be held to be unlawful.’ The Cabinet Secretary may protect wetlands by using eminent domain powers. Acquisition of wetland areas is required to be for a public purpose. Such acquirange of fresh-brackish-marine water chemistry and daily tidal cycles. Marine wetlands includes those in open ocean, continental shelf, including beaches, rocky shores, lagoons, and shallow coral reefs. See Schot PP, ‘Wetlands’ in Nath B, Hens L, Compton P and Devuysteds (eds), Environmental management in practice, vol 3, Routledge, London, 1999. A constructed wetland is an artificial wetland made for the purpose of treating anthropogenic discharge such as industrial wastewater. 62 Ministry of Environment and Mineral Resources, ‘Kenya wetlands atlas 2012’ http://apps.unep.org/publications/pmtdocuments/-Kenya%20wetland%20atlas-2012Kenya_Wetlands. pdf on 22 June 2015. 63 National Environment Management Authority, Wetland assessment and monitoring strategy for Kenya, 2012. 64 Section 42(2), Environmental Management and Coordination Act (Act No. 8 of 1999). 65 [2004] eKLR.

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sitions have been the subject of numerous court cases. In Commissioner of Lands and another v Coastal Aquaculture Ltd 66 it was held, inter alia, that the public purpose for which the acquisition is made must be disclosed. (c) Minerals and mineral oils The other notable category that is considered to constitute public land is land with minerals and mineral oils.67 Activities of the extractive industries usually require large tracts of land and often result in the degradation of the environment. Proper management of these activities is therefore very important for sustainability. The Mining Act of 2016 is in line with the Constitution with respect to the ownership of minerals. It provides that minerals are the property of the Republic of Kenya and are vested on the National Government to be held in trust for the people of Kenya.68 This is in line with the public trust doctrine which seeks to prevent mismanagement of public property.69 The Act also prohibits the searching for, prospecting or mining of any mineral deposit without a licence under the Act.70 The EMCA also governs the exploitation of mineral resources, and institutions such as NEMA have been established to ensure this. Accordingly, Regulation 18 of Environmental Impact Assessment and Audit Regulations71 requires an Environmental Impact Assessment (EIA) Report to identify environmental impacts of a project, and to propose mitigation measures.

11.1.2 Challenges in management of public land As pointed out in chapter eleven, there are current challenges facing the management of public land. Some of them are attributable to the constant wrangles between the Ministry of Lands and the National Land Commission over the jurisdiction of the two entities. Because of this and lack of political goodwill, management of public land is still prone and susceptible to the problems it has faced in the past. Without political goodwill and support from relevant actors, it becomes difficult for NLC to streamline the management of public land in conjunction with all public 68 69

Civil Appeal No. 252 of 1996 reported in KLR (E & L) Vol. 1, 264-295. Article 62(1)(f), Constitution of Kenya (2010). Section 6(1), Mining Act (Act No. 12 of 2016). Sax J, ‘The public trust doctrine in natural resource law: Effective judicial intervention’ 68 Michigan Law Review (1970), 471. 70 Section 10, Mining Act (Act No. 12 of 2016). 71 Environmental Impact Assessment and Audit Regulations (Legal Notice No.101, 2003). 66 67

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agencies, statutory bodies and state corporations in the actual occupation or use of public land. It also makes the delivery of land services difficult. Inadequate funding is another challenge that continues to hamper the management of public land and the operation of NLC, hindering the Commission from attaining its statutory mandate.72 Most people are unaware of the various laws that exist to govern public land and land in general and corrupt people have taken advantage of this to continue engaging in unlawful practices and expropriating public land.73 Poor management of records, as discussed in the previous chapter, is another challenge. Public land records are poorly stored in manual systems and this is likely to undermine management of land74 since the records are prone to manipulation. Retrieval of the information also becomes difficult. It is imperative that the Commission ensures that all records on public land are digitalised to ensure efficient management, curb manipulation and ensure ease of access. Recently, there have been attempts by the executive to take over NLC’s powers and functions in the administration of public land through legislative forays.75 Effective management of public land also requires the sensitisation of members of the public and the county governments on the role of the NLC. In short, the Commission should stand firm and preserve its independence in discharging its functions in spite of political interference. 11.2 Private land The management and administration of private land is provided for in Part V of the Land Act. One peculiarity relating to land is that all contracts relating to the disposition of an interest in land must be in writing.76 Subsequently, any transfer of private land by a proprietor to a transferee must be registered.77 Upon registration, the transferee possesses rights and encumbrances over the land. Such rights include the right to lease the land, charge the land and also the right to dispose the land by way of sale.78 74 75

National Land Commission, The progress report March 2013-January 2014, 47. National Land Commission, The progress report March 2013-January 2014, 47. National Land Commission, The progress report March 2013-January 2014, 48. See, Menya W, ‘Executive seeks to take over land agency’s powers, roles’ Daily Nation, 27 September 2015, 20. 76 Section 3(3), Law of Contract Act (Chapter 23, Laws of Kenya), Section 38, Land Act (Act No. 6 of 2012). 77 Section 43(3), Land Act (Act No. 6 of 2012). 78 Section 43(2), Land Act (Act No. 6 of 2012). 72 73

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Transactions relating to land are, however, subject to overriding interests such as: trusts (including customary trusts); rights of way; natural rights of light; rights of compulsory acquisition; leases; charges and electric supply lines.79 Having such interests is important in ensuring the protection of claimants of an overriding interest, especially where the registered proprietor deals in land fraudulently so as to defeat those interests, as their interests are usually not noted in the register or title. Private land may be compulsorily acquired by either the national or county government and this is subject to the issuance of notice. The acquisition of land in this nature must, however, meet the test of use for public purpose or in the public interest,80 failure to which the land may revert to the original owners. In cases of compulsory acquisition, it is required that just compensation be paid and the Commission is to make rules for the regulation of just compensation.81 Mechanisms have been established to facilitate the registration of interests in land and section 6 of the Land Registration Act provides for the establishment of registration units which are to be used for demarcation purposes. Land registries are to be established and land registers are to be kept here and they are also to be tasked with the maintenance of registers.82 An important provision relating to the management of land is the requirement that there be prepared maps or series of maps known as cadastral maps for every registration unit. It is further required that the boundaries of such maps be geo-referenced to ensure compatibility with other documents.83 The demarcation/ delineation of the boundaries are considered to be part of a cadastral survey which aims at defining the parcel on the ground and providing security as evidence for the re-establishment of the boundary if it disappears.84

11.2.1 Compulsory acquisition of private land The process to be followed by the Commission in conducting compulsory acquisition is laid down under Part VIII of the Land Act. Where it is necessary to Section 28, Land Registration Act (Act No. 3 of 2012). It is worth noting that originally the Land Registration Act had made provision for spousal rights as overriding interests. However, section 28(a) was deleted by Section 11(a), Land Laws (Amendment) Act (Act No. 28 of 2016). 80 Section 110, Land Act (Act No. 6 of 2012). 81 Section 111, Land Act (Act No. 6 of 2012). 82 Section 7, Land Registration Act (Act No. 3 of 2012). See amendment in Section 4, Land Laws (Amendment) Act (Act No. 28 of 2016). 83 Section 15, Land Registration Act (Act No. 3 of 2012). 84 United Nations Human Settlements Programme, Land Information Service in Kenya, Nairobi, 2001. 79

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acquire a particular land, the national or county government must submit a request to the Commission to acquire the land on its behalf.85 Such a request may be rejected by the Commission where it does not adhere to prescribed guidelines or Article 40(3) of the Constitution.86 Where the Commission fails to acquire the land, it must give reasons for that decision.87 If the Commission approves the request, it must publish a notice to that effect in the Kenya Gazette and the County Gazette, and deliver a copy to the Registrar and every person who is interested in the land.88 On receiving the notice, the Registrar must enter in the register the fact of the intended acquisition.89 The Commission may then authorise, in writing, any person, to enter the land and inspect and do all that is necessary to ascertain whether the land is suitable for the intended purpose.90 A notice does not empower one to enter a building unless the consent of the occupier has been obtained or the occupier given a written notice of not less than seven days of the intention to enter.91 Where there is damage as a result of the entry, the Commission must pay just and full compensation.92 Private land is acquired if the Commission certifies in writing that the land is required for a public purpose.93 Just compensation must be paid promptly in full to all persons whose interests in the land have been determined.94 The Commission must make rules regulating the assessment of just compensation.95 If only a part of the land is being acquired, the Commission must conduct a survey of the land.96 Where the survey indicates that the part acquired is larger than the size for which compensation has been paid, additional compensation must be paid for the excess size.97 An inquiry as to compensation must be conducted to give an opportunity to all persons interested in the land to deliver their written claims to the Commission.98 The acquiring body is entitled to be heard during the inquiry as to the compen Section 107(1), Land Act (Act No. 6 of 2012). See amendment in Section 77, Land Laws (Amendment) Act (Act No. 28 of 2016). 86 Section 107(2) and (3), Land Act (Act No. 6 of 2012). 87 Section 107(4), Land Act (Act No. 6 of 2012). 88 Section 107(5), Land Act (Act No. 6 of 2012). 89 Section 107(6), Land Act (Act No. 6 of 2012). 90 Section 108(1), Land Act (Act No. 6 of 2012). 91 Section 108(2), Land Act (Act No. 6 of 2012). 92 Section 109, Land Act (Act No. 6 of 2012). 93 Section 110(1), Land Act (Act No. 6 of 2012). 94 Section 111(1), Land Act (Act No. 6 of 2012). 95 Section 111(2), Land Act (Act No. 6 of 2012). 96 Section 118, Land Act (Act No. 6 of 2012). 97 Section 119, Land Act (Act No. 6 of 2012). 98 Section 112(1) and (2), Land Act (Act No. 6 of 2012). 85

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sation.99 On conclusion of the inquiry, the Commission must prepare a separate award for every person whose interest in the land, it deems, has been affected100 and notify such persons.101 The Commission must then pay compensation promptly in accordance with the award.102 If a person receives any compensation by error, the Commission may serve a written notice on the person to refund the money and the money becomes a debt due to the Commission.103 The Commission may write to the person in possession of the title documents to deliver them to the Registrar where they have not been previously delivered.104 Where the public purpose justifying the acquisition fails or ceases to exist, the Commission may offer the original owners or their successor-in-title the pre-emptive rights to re-acquire the land upon restitution to the acquiring authority the full amount paid as compensation.105 Any dispute arising may be referred to the Land and Environment Court for determination.106 Practical challenges often arise in cases of monetary compensation. With the many infrastructural projects currently under way in different parts of the country, disputes have arisen between the Government and landowners over the amount of compensation to be paid, forcing the Government to halt some of the projects.107 Concerns have emerged following the slow progress made in paying compensation. In Africa Gas and Oil Company Limited v Attorney General & 3 others108 the applicant sued for unpaid compensation when its land had been compulsorily acquired and the acquiring authority (Kenya Railways Corporation) had already taken possession of the land. The High Court held for the applicant and ordered the respondent to make the payments due to the applicant. Challenges have been faced where some landowners have contested the award of compensation arguing that it is too low. In some parts, compulsory acquisition has led to landlessness and squatting especially where, after being compensated monetarily, landowners have misused the monies rather than get alternative land. Section 112(6), Land Act (Act No. 6 of 2012). Section 113, Land Act (Act No. 6 of 2012). 101 Section 114, Land Act (Act No. 6 of 2012). 102 Section 115(1), Land Act (Act No. 6 of 2012). 103 Section 116, Land Act (Act No. 6 of 2012). 104 Section 121(1), Land Act (Act No. 6 of 2012). 105 Section 110(2), Land Act (Act No. 6 of 2012). It is the role of the Commission to certify whether a purpose amounts to a public purpose and it is only upon such certification that land may be acquired, section 110(1). 106 Section 128, Land Act (Act No. 6 of 2012). 107 Mwinzi B, ‘Petitioner stops Uhuru’s railway project over unpaid Sh 1.4 billion’ Daily Nation, 29 June 2016. 108 Constitutional Petition No. 171 of 2016. 99

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With regard to mining operations, the Mining Act requires that where the exercise of the rights conferred by a mineral right109 disturbs or deprives the owner or any lawful occupier or user of the land or part of the land; causes loss of or damage to buildings and other immovable property; causes damage to the water table or deprives the owner of water supply; and in the case of land under cultivation or grazing of domesticated animals, causes any loss of earnings or sustenance suffered by the owner or lawful occupier of the land, a demand or claim for compensation may be made to the holder of the mineral right to pay prompt, adequate and fair compensation to the lawful owner, occupier or user of the land.110 The holder of a mineral right cannot commence mining operations unless the lawful occupier, owner or user of land is compensated.111

11.2.2 Contracts over land The Land Act regulates contracts over land. Under the Act, a suit for the recovery of land after conclusion of a contract of sale of land may not be instituted unless the contract in question is in writing and is signed by all the parties to the contract.112 The signature of each party must be attested to by a witness who was present when the contract was signed by such party.113 For incorporated companies, they execute documents by the affixation of their company seals on the document. The company seal is then witnessed by at least two directors or one director and the company secretary. It is important to have contracts over land in writing owing to the importance and uniqueness of land and the history of land in Kenya. Without evidence of writing, it would be hard to prove the many cases of fraud and alterations of documents relating to land in the land registries. Because of the permanent nature of land and the fact that disputes over land ownership are common and ubiquitous, a written contract is useful from an evidential perspective as it is conclusive evidence of the making of an agreement.114 It also eliminates the need for parole or oral evidence in proving the agreement. Therefore, in case of disagreement, the remedy of specific A ‘mineral right’ means a prospecting licence; a retention licence; a mining licence; a prospecting permit; a mining permit; or an artisanal permit. Section 4, Mining Act (Act No. 12 of 2016). 110 Section 153(1), Mining Act (Act No. 12 of 2016). 111 Section 153(7), Mining Act (Act No. 12 of 2016). 112 Section 38(1)(a), Land Act (Act No. 6 of 2012). Section 3 (3), Law of Contract Act (Cap. 23) states that a contract for the sale of land must be in writing. 113 Section 38(1)(b), Land Act (Act No. 6 of 2012). 114 Miller R and Jentz G, Business law today: The essentials, 8ed, Cengage Learning, Ohio, 2007, 255. 109

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performance (a court order compelling someone to carry out an obligation usually stipulated in a contract) may be available. The fact that contracts over land must be in writing provides records that are useful in future. They can help prevent misunderstanding in future especially where the buyer has, for example, paid the deposit of the purchase price and the vendor is not willing to continue with the transaction.115 Writing also performs the protective function of giving the proprietors of land an opportunity to think again before dealing with this very unique item. However, the requirements as to writing do not apply to contracts made in the case of public action or the creation or operation of resulting, implied or constructive trusts.116 A vendor may exercise his/her right to rescind the contract where the purchaser has breached the contract. The vendor can exercise this right by resuming possession of the land peaceably or obtaining an order for possession from the court.117 This does not limit the vendor from claiming damages and mesne profits from the purchaser for the breach of the contract or for breach of any other duty to the vendor which the purchaser may be under independently of the contract. Nor does it affect the amount of damages that the vendor may claim.118 A contractual term, express or implied, that contravenes this requirement is inoperative.119 The vendor has to serve notice to the purchaser before applying for an order of possession indicating the nature of the breach, whether it can be remedied, the period for such and the consequences of failure to adhere to it.120 The failure by the notice to conform to these particulars does not invalidate the notice as long as its purport is clear and neither does it absolve the purchaser of the consequences of failing to reply to the notice.121 A purchaser may apply to court for relief where the vendor has rescinded the contract and the court can grant relief as it deems appropriate, including relief in the case of breach of any contractual term or condition that cannot be remedied.122 The application for relief by the purchaser may not be taken to mean that the purchaser admits breach of the contract or that by breach of contract, the vendor has the right Government of the United Kingdom, Report from the Select Committee of the House of Lords on the Tenure (Ireland) Bill (HL): Together with the proceedings of the Committee, minutes of evidence, and index, 1867, 324. 116 Section 38(2), Land Act (Act No. 6 of 2012). 117 Section 39, Land Act (Act No. 6 of 2012). 118 Section 40(1), Land Act (Act No. 6 of 2012). 119 Section 40(2), Land Act (Act No. 6 of 2012). 120 Section 41(1), Land Act (Act No. 6 of 2012). 121 Section 41(2), Land Act (Act No. 6 of 2012). 122 Section 42(1) and (3), Land Act (Act No. 6 of 2012). 115

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to rescind the contract.123 Any term in the contract or other relevant instrument that conflicts with this provision is inoperative.124

11.2.3 Transfers A transfer means the passing of land, a lease or a charge from one party to another by an act of the parties and not by operation of the law, and includes the instrument by which such passing is effected.125 It includes a conveyance, an assignment, a transfer of land, a transfer of lease or other instrument used in the disposition of an interest in land by way of transfer.126 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 or in such other form as the Registrar may in any particular case approve.127 A transfer takes effect immediately and cannot be expressed to take effect on the happening of any event or on the fulfilment of any condition or at any future time.128 Every instrument effecting a disposition of land under the Land Registration Act must be in the form prescribed in relation to that disposition under the Act or any other written law.129 Such instrument must be executed by each of the parties consenting to it.130 Execution consists of appending a person’s signature on the instrument or affixing the thumbprint or other mark as evidence of personal acceptance of that instrument.131 A corporate body, association, cooperative society or other organisation must execute the instrument in accordance with the provisions of the relevant law and in the absence of provisions on execution of instruments, the execution shall be effected in the presence of either an advocate of the High Court of Kenya, a magistrate, a Judge or a notary public.132 Apart from executing the instrument, a transferee must attach the following documents to the relevant instrument:133 125 126 127 123 124

130 131 132 133 128 129

Section 42(4), Land Act (Act No. 6 of 2012). Section 42(5), Land Act (Act No. 6 of 2012). Section 2, Land Act (Act No. 6 of 2012). Section 43(1), Land Act (Act No. 6 of 2012). Section 37(1), Land Registration Act (Act No. 3 of 2012). See also Section 43(2), Land Act (Act No. 6 of 2012). Section 44, Land Act (Act No. 6 of 2012). Section 43(1), Land Registration Act (Act No. 3 of 2012). Section 44(1), Land Registration Act (Act No. 3 of 2012). Section 44(2), Land Registration Act (Act No. 3 of 2012). Section 44(3), Land Registration Act (Act No. 3 of 2012). Section 44(5), Land Registration Act (Act No. 3 of 2012).

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A copy of an identity card or passport; and

(ii) A copy of a Personal Identification Number certificate; (iii) Passport size photographs; (iv) Where applicable, a marriage certificate; (v) A copy of the certificate of incorporation, in the case of a corporate entity; or (vi) Such other identification documents as the Cabinet Secretary may prescribe.

A transfer is completed by filing the instrument and registration of the transferee as proprietor of the land, lease or charge.134 Registration of the instrument serves the following functions: it gives the transferee, chargee and lessee security of tenure as there is indemnity from government; reduces litigation as the owner and size of land are conclusively established; prevents fragmentation of land especially of agricultural land; facilitates tax administration as government is able to identify a person against whom to levy a tax or rate; and it facilitates loan administration system as the chargee is happy to advance money on a secure title.135 Although some interests in land, such as short term leases, are not registrable,136 non-registration could be fatal for other interests in that the proprietary interest may not pass to the transferee, lessee or chargee. In some instances, non-registration of particular documents, which ought to be registered by statute as a matter of course or compulsory requirement, makes such a document invalid. For example, leases for a period of two years and above may require registration.137 In addition, future leases which are expressed to be for a period of more than five years are of no effect unless and until they are registered.138 The document is not void but is invalid in the sense that it works as a contract between the two parties (interpartes) but not third parties.

11.2.4 Transmissions Transmission occurs when property passes from one party to another by operation of the law rather than at the instance of the parties. On the death of a joint proprietor of any land, lease or charge dies, the Land Act requires the Registrar, on Section 37(2), Land Registration Act (Act No. 3 of 2012). See also Section 43(3), Land Act (Act No. 6 of 2012). 135 Ojienda T, Conveyancing principles and practice, LawAfrica, Nairobi 2008, 99-101. 136 Section 58(3), Land Act (Act No. 6 of 2012). 137 Section 58(1) and (3), Land Act (Act No. 6 of 2012). 138 Section 61(2), Land Act (Act No. 6 of 2012). 134

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proof of the death, to delete the name of the deceased proprietor from the register by registering the death certificate.139 Where the deceased was a sole proprietor or tenant in common, their personal representative is registered in place of the deceased on production of the grant to the Registrar.140 It is important to add the words “as executor of the will of () [deceased]” or “as administrator of the estate of () [deceased]” after the representative’s name, depending on whether the deceased died testate or intestate respectively.141 The personal representative or any other person beneficially entitled to the property holds it subject to any liabilities, rights or interests unregistered but nevertheless enforceable and subject to which the deceased held the property.142 However, such a person is deemed to be a registered proprietor with all the rights vested by the Act in a proprietor who has acquired property for valuable consideration.143 The registration dates back to and takes effect from the date of death of the proprietor.144 Transmission also occurs in the case of bankruptcy. The property of a person declared bankrupt transmits to their trustee in bankruptcy. The trustee in bankruptcy is registered as holder of the property on production to the Registrar of a copy of the adjudication order or an order directing that the estate of a deceased proprietor be administered as per the law of bankruptcy.145 The liquidation of companies is also another instance in which transmission occurs. Once the Registrar has received a resolution or order appointing the liquidator and has expressed his satisfaction that the liquidator has complied with the requirements of the Companies Act,146 the liquidator is registered as proprietor of the property of the company.147

Section 49, Land Act (Act No. 6 of 2012). Section 50(1), Land Act (Act No. 6 of 2012). 141 Where a deceased person had made a will during his life time, it is said he died testate and the named executor in the will becomes the personal representative of his estate. However, if the deceased did not make a will or the will is invalid, it is said that the deceased died intestate and someone must apply to the court to be appointed the personal representative of the estate. A personal representative in the case of intestate succession is called an administrator. 142 Section 51(1), Land Act (Act No. 6 of 2012). 143 Section 51(1), Land Act (Act No. 6 of 2012). 144 Section 51(2), Land Act (Act No. 6 of 2012). 145 Section 52(1), Land Act (Act No. 6 of 2012). 146 Act No. 17 of 2015. 147 Section 53(1), Land Act (Act No. 6 of 2012). 139 140

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11.2.5 Charges A charge is a form of security for the payment of a debt or performance of an obligation.148 It is ‘an interest in land securing the payment of money or money’s worth or the fulfilment of any condition, and includes a sub-charge and the instrument creating a charge, including...an informal charge...and ... a customary charge...’149 A charge relationship is entered into by two parties: the chargor (usually the holder of a property interest and the borrower of money) and the chargee (usually a financial institution willing to extend some money as a loan to the chargor). Our current land regime uses the term ‘charge’ to describe the relationship between a borrower of money and a financial institution. The phenomenon of a ‘mortgage’ which was available under the previous land law regime has been done away with as the current land law regime also provides for charges.150 (a) Informal and customary charges An informal charge can be created where a chargee accepts a written and witnessed undertaking from a chargor, the clear intention of which is to charge the chargor’s land or interest in land with the repayment of money or money’s worth obtained from the charge plus interest as agreed by the chargor and the charge.151 In addition, it can be created as a “lien by deposit of documents” where the chargor deposits with the charge either a certificate of title to the land, a document of lease or any other document which it is agreed evidences ownership of land or a right to interest in land.152 A chargee holding an informal charge can only take possession of or sell the land, the subject of an informal charge, on obtaining an order of the court to that effect.153 A chargor cannot possess (obviously this must be in circumstances where the chargor was not in possession of the land) or sell land whose title document has been deposited with the chargee under an informal charge without the order of the Court.154 Informal charges may be formalised through registration.155 Burke J, Osborn’s concise law dictionary, 6ed, Sweet and Maxwell, London, 1976, 224. A mortgage on the other hand is defined in the dictionary as ‘A transfer of a legal estate or interest in land or other property for the purpose of securing the repayment of a debt’. 149 Section 2, Land Act (Act No. 6 of 2012). 150 A mortgage used to operate as a transfer of land and not as a security. 151 Sections 79(6)(a) and 2, Land Act (Act No. 6 of 2012). 152 Sections 79(6)(b) and 79(8), Land Act (Act No. 6 of 2012). 153 Section 79(7), Land Act (Act No. 6 of 2012). 154 Section 79(9), Land Act (Act No. 6 of 2012). 155 Section 79(5), Land Act (Act No. 6 of 2012). 148

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A customary charge is a type of informal charge whose undertaking has been observed by a group of people over an indefinite period of time and considered as legal and binding to such people.156 Recognition of informal and customary charges is out of the need to make credit available to a majority of people in Kenya, especially the poor who have no land rights or whose land rights are informal. (b) Formal charges As indicated above, contracts over land, including charge instruments, must be evidenced in writing and executed as explained above under the part dealing with transfers. Every charge instrument must contain: the terms and conditions of sale; an explanation of the consequences of default; and the reliefs that the chargor is entitled to including the rights of sale.157 These aspects will be examined later in this part. The date for the repayment of the money secured by a charge may be specified in the charge instrument, and, if no such date is specified or repayment is not demanded by the charge on the date specified, the money is deemed to be repayable three (3) months after service of a written demand, by the chargee.158 Formal charges must also be registered to safeguard the interests of the parties. A charge is completed by its registration as an encumbrance and the registration of the person in whose favour it is created as its proprietor and by filing the instrument.159 Registration of a charge over any unit of land is a practical commercial arrangement as it secures financial accommodation for the chargor, while equally safeguarding the chargee’s entitlement to repayment at agreed times, and the agreed margins of profitability.160 The Registrar cannot register a charge, unless a land rent clearance certificate, certifying that no rent is owing in respect of the land, and the consent to charge has been presented, or unless the land is freehold.161 However, a land rent clearance certificate is not required if the charge relates to a unit in a condominium; an office in a building; or a sublease where the lease is by virtue of any law subject to the full payment of the rent by the head-lessor.162 158 159 160

Section 2, Land Act (Act No. 6 of 2012). Section 80(3), Land Act (Act No. 6 of 2012). Section 56(2), Land Registration Act (Act No. 3 of 2012). Section 56(3), Land Registration Act (Act No. 3 of 2012). Ojwang’ JB, The common law, judges’ law: Land and the environment before the Kenyan courts, Strathmore University Press, Nairobi, 2014, 97. 161 Section 56(4), Land Registration Act (Act No. 3 of 2012). 162 Section 56(5A), Land Registration Act (Act No. 3 of 2012). 156

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A charge of land operates only as security and does not operate to transfer any interests or rights in the land from the chargor to the chargee.163 This may explain why the current land law does not use the nomenclature of mortgages which used to operate as a conditional assignment or conveyance of an interest in land to secure repayment of a debt. With a mortgage, the assignment or conveyance is conditional on the default by the borrower.164 In the event that the borrower defaults, the mortgagee’s interest in the land becomes absolute.165 Unless otherwise provided in the charge instrument, charges rank according to the order in which they are registered.166 Where several charges are registered, they rank according to the order in which they are made and where there are two informal charges, one registered and the other not registered, the registered informal charge takes priority over any unregistered informal charge.167 The Act also provides for tacking of charges. Tacking is a process that allows for the modification of the rules relating to the priorities of charges. Essentially it allows a mortgagee/chargee with inferior or subsequent charge to insist on the discharge of his charge before a prior mortagagee.168 Where a person takes a subsequent charge on his land, any further advance cannot rank in priority to any subsequent charge unless the provision for further advances is noted in the register in which the charge is registered; and the subsequent chargee has consented in writing to the priority of the further advance.169 Consolidation is also provided for in the Act. The right to consolidate arises where a person in whom two or more mortgages/charges are vested refuses to allow one mortgage to be redeemed unless the other or others are also redeemed.170 It is also possible for a chargor who has more than one charge with a single chargee on several securities to discharge any of the charges without having to redeem all charges.171

Section 80 (1), Land Act (Act No. 6 of 2012). See also 56(5), Land Registration Act (Act No. 3 of 2012). Ojienda T, Aura-Odhiambo R and Okoth M, Land law and conveyancing: Principles and practice, LawAfrica, Nairobi, 2015, 193-194. 165 Ojienda, Aura-Odhiambo and Okoth, Land Law and Conveyancing, 193-194. 166 Section 81(1), Land Act (Act No. 6 of 2012). 167 Section 81(2), Land Act (Act No. 6 of 2012). 168 Oakley J, Megarry’s manual of the law of real property, Sweet & Maxwell, London, 2002, 542. 169 Section 82, Land Act (Act No. 6 of 2012). 170 Oakley, Megarry’s manual of the law of real property, 515. 171 Section 83, Land Act (Act No. 6 of 2012). 163 164

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(c) Covenants by a chargor in a charge172 (i) To pay the principal money on the day appointed in the charge agreement, and so long as any of the principal money or part thereof remains unpaid, to pay interest on the money at the rate and on the days and in the manner specified in the charge agreement. (ii) To pay all rates, charges, rent, taxes and other outgoings that are at all times payable in respect of the charged land. (iii) To repair and keep in repair all buildings and other improvements upon the charged land or to permit the chargee or chargee’s agent to enter the land and examine the state and condition of such buildings and improvements after a seven days’ notice to the chargor until the charge is discharged. (iv) To ensure by insurance or any other means that may be prescribed or which are appropriate, that resources are available to make good any loss or damage caused by fire to any building on the land. Where insurance is taken out, it is done in the joint names of the chargor and chargee and to the full value of the buildings. The insurers must also be approved by the chargee. This is because the chargee has an interest in the property. (v) In case of a charge of land used for agricultural purposes, to use the land in a sustainable manner in accordance with the principles and any conditions subject to which the land or lease under which the land is held, and in compliance with all written laws and lawful orders applicable to that use of the land. (vi) Not to lease or sublease the charged land or any part of it for any period longer than a year without the previous consent in writing of the chargee, and the consent is not to be unreasonably withheld. (vii) Not to transfer or assign the land or lease or part of it without the previous consent in writing of the chargee, and the consent is not to be unreasonably withheld. (viii) In the case of a charge of a lease, to pay, perform and observe the rent, covenants and conditions contained in or implied by and in the lease during the continuance of the charge. The chargor must also keep the chargee indemnified against all proceedings, expenses and claims on account of non-payment of the rent or part of it or the breach or non Section 88(1), Land Act (Act No. 6 of 2012).

172

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observance of any covenants and conditions. If the chargor has an enforceable right to renew the lease, he is obligated to renew it. (ix) If the charge is a second or subsequent charge, that the chargor will pay the interest from time to time accruing on each prior charge when it becomes due and will at the proper time repay the principal money or part of it due on each prior charge at the proper time. (x) If the chargor fails to comply with any of the covenants implied by paragraphs (b), (c), (d), (e) and (h) above, that the chargee may spend any money which is reasonably necessary to remedy the breach and may add the amount so spent to the principal money and that amount shall be deemed for all purposes to be a part of the principal money secured by the charge. (d) Rights of the chargor (i) Right to discharge a charge Upon payment of all money secured by a charge and the performance of all other conditions and obligations under the charge, the chargor is entitled to discharge the charge at any time before the charged land has been sold by the chargee or a receiver under the power of sale.173 In a charge instrument, the chargee may provide that a chargor who wishes to exercise the right to discharge the charge may at any time before the expiry of the term of the charge give one month’s notice of the intention to discharge or pay not more than one month’s interest at the rate at which interest is payable on the principal sum secured by the charge or at any lesser rate which may be agreed, as well as paying all other money secured by the charge.174 (ii) Variation of interest rates The law allows for the variation of a charge. The parties can vary the terms, conditions, powers and covenants in a charge; and the amount secured by the charge subject to the conditions specified in the Act.175 Such variations can be effected by a memorandum signed by the chargor and chargee. The memorandum is then endorsed

Section 85(1), Land Act (Act No. 6 of 2012). Section 85(3), Land Act (Act No. 6 of 2012). 175 Section 84(2)-(4), Land Act (Act No. 6 of 2012). 173 174

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on or annexed to the charge instrument and upon such endorsement or annexation, its effect is to vary the charge in accordance with its terms.176 However, for interest rates, where it was contractually agreed that the rate of interest is variable, the rate of interest payable under a charge may be reduced or increased by a written notice served on the chargor by the chargee. The written notice must give the chargor at least thirty days’ notice of the reduction or increase in the rate of interest; and state clearly and in a manner that can be readily understood the new rate of interest to be paid in respect of the charge.177 In Elijah Kipng’eno Arap Bii v Kenya Commercial Bank Ltd,178 the High Court held that a charge is a contract between the parties and interest rates can therefore be unilaterally varied if it was so envisaged in the charge document. However, in Margaret Njeri Muiruri v Bank of Baroda (Kenya) Limited,179 the Court of Appeal stated that it is unfair and unequitable for any party to an agreement to vary interest rates unilaterally. The mortgage instrument in this case allowed the bank to increase the charges on the interest rate unilaterally without recourse to anyone, even the mortgagee who was taking steps to clear the loan. (iii) Special acknowledgement by chargor A charge instrument must be consented to by the chargor by execution180 and contain a special acknowledgement by the chargor that he/she understands the effect of default and the remedies of the chargee.181 The acknowledgement must be signed by the chargor or, where the chargor is a corporation, the persons attesting the affixation of the common seal.182 Interestingly, courts have opined that the failure of the chargor to sign that acknowledgement or certificate, as the case may be,183 does not make the charge fatal. This was the case in Ngeny v Kenya Commercial Finance Co. Ltd,184 where the Court of Appeal found that the lack of a certificate neither made the charge void nor were the chargee’s rights to realise the security invalidated. 178 179 180 181 182 183

Section 84(5), Land Act (Act No. 6 of 2012). Section 84(1), Land Act (Act No. 6 of 2012). Milimani Commercial Court Civil Case Number 324 of 2000. [2014] eKLR. Section 44(1), Land Registration Act (Act No. 3 of 2012). Section 56(1), Land Registration Act (Act No. 3 of 2012). Section 56(1), Land Registration Act (Act No. 3 of 2012). Under the repealed Registered Land Act, the chargor was required to sign a certificate indicating that he understood the effect of sections 74 of the Act which outlined the remedies of the chargee in the event the chargor defaults in paying the principal sum, interest, any periodic payment or any part of the listed payments. 184 [2002] 1 KLR 295 CA. 176 177

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In the English decision of Paragon Finance plc v Staunton185 and Paragon Finance plc v Nash,186 a mortgage company (Paragon Finance) claimed possession from the two defendants on the grounds that they were in arrears with the mortgage interest repayments. The defendants, however, took issue with the rate of interest charged and argued that the mortgage company had failed to adjust the interest rate chargeable in line with the prevailing market rates. The legal charges held by the mortgage company gave it the power to vary a portion of the interest rate from time to time. On appeal, one of the issues that the Court was to determine was whether the discretion given to the mortgage company to vary the interest rate was subject to an implied term, that it was bound to “exercise that discretion fairly, as between both parties to the contract, and not arbitrarily, capriciously or unreasonably.” The Court held that “the power given to the claimant by the mortgage agreements to set interest rates from time to time was not completely unfettered. A construction to the contrary would mean that the claimant would be completely free, in theory at least, to specify interest rates at the most exorbitant level.” (iv) Right to transfer a charge As a proprietary interest, a charge can be transferred from one person to another. Therefore, a chargor may at any time, other than a time when the chargee is in possession of the charged land, request the chargee in writing, to transfer the charge to a person named in the request.187 Likewise, and subject to the consent of the chargor which must not be unreasonably withheld, any person who has an interest in the land, lease or land, that is the subject of the charge; any surety for the payment of the amount secured by the charge; and any creditor of the chargor who has obtained a decree for sale of the land, lease or charge, that is the subject of the charge, may make a written request to the chargee to transfer the charge.188 Upon receiving the written request, and upon payment by the person or persons making the request of all money that would have been payable if discharge of the charge had been made under section 102, and the performance of all other obligations secured by the charge, the chargee must transfer the charge to the person named in the written request.189

187 188 189 185 186

[2001] EWCA Civ 1466. [2002] All ER 248. Section 86(1), Land Act (Act No. 6 of 2012). Section 86(2), Land Act (Act No. 6 of 2012). Section 86(3), Land Act (Act No. 6 of 2012).

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(v) Equity of redemption At common law, if the chargor failed to pay the debt on the contractual date of redemption, his/her right to redeem the property was extinguished. However, equity, “looking at the borrower with unusual tenderness” and guided by the principle that “once a mortgage always a mortgage”, allowed a borrower to redeem the property after the legal right to redeem had expired.190 Until the enactment of the Land Act, the equity of redemption had been left to judicial interpretation and case law but it has not gained statutory expression in the Land Act. According to the Land Act, “Any rule of law, written or unwritten, entitling a chargee to foreclose the equity of redemption in charged land is prohibited.”191 Therefore, any provision in a charge document purporting to limit, postpone or exclude the equity of redemption is liable to be struck down as void and unenforceable. Consequently, the exercise of the statutory power of sale by a chargee can only extinguish the chargor’s equity of redemption if it is strictly exercised in accordance with the Land Act.192 For example, if the sale of the suit property is carried out in the absence of a proper notice to sell, it will amount to a clog on the equity of redemption.193 (vi) Remedies of a chargee Where a chargor is in default of any obligation, fails to pay interest or any other periodic payment or any part thereof due under any charge or in the performance or observation of any covenant, express or implied, in any charge, and continues to be in default for one month, the chargee may serve on the chargor a notice, in writing, to pay the money owing or to perform and observe the agreement as the case may be.194 The statutory notice must inform the recipient adequately of the following matters:195 (a) The nature and extent of the default by the chargor; (b) If the default consists of the non-payment of any money due under the charge, the amount that must be paid to rectify the default and the time, being not less than three months, by the end of which the payment in default must have been completed. In Kyangavo v Kenya Commercial Bank Limited and another,196 192 193 194 195 196 190 191

Selton v Slade [1802] 7 Ves 265. Section 89(1), Land Act (Act No. 6 of 2012). Albert Mario Cordeiro & another v Vishram Shamji [2015] eKLR. Albert Mario Cordeiro & another v Vishram Shamji [2015] eKLR. Section 90(1), Land Act (Act No. 6 of 2012). Section 90(2), Land Act (Act No. 6 of 2012). [2014] 1 KLR 126.

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it was held that the notice must refer to three months from receipt thereof, but not three months from the date thereof. Further, in Albert Mario Cordeiro & another v Vishram Shamji,197 the High Court advised that parties should strive to use the exact words used in the statute (not less than three months and not 90 days) to avoid arguments. In this case the notice gave the chargor “…a period of 90 days instead of the statutory three months” as per the Land Act. Similarly, in Trust Bank Ltd v Eros Chemists Ltd198 the Court of Appeal explained the object of the notice and rationale behind the three months period after service of the notice. The Court stated as follows:

In our judgment, the heart of this appeal lies in the central question as to what constitutes a valid notice under section 69(A) (1) of the Transfer of Property Act… The starting point of any discussion as to whether there should be an express statutory requirement that a notice should refer to the three months period is to consider what the object of a notice is. In our judgment, the notice is to guard the rights of the mortgagor because if the statutory right of sale is exercised the mortgagor’s equity of redemption would be extinguished. This would be a serious matter. The law clearly intended to protect the mortgagor in his right to redeem and warn of an intended right of sale. For that right to accrue the statute provided for a three months’ period to lapse after service of notice. In our judgment, a notice seeking to sell the charged property must expressly state that the sale shall take place after the three months’ period. To omit to say so or to state a period of less than three months for sale (as in the Russell case) is to deny the mortgagor a right conferred upon him by statute.

That clearly must render the notice invalid. In our judgment, with respect, there is a mandatory requirement that a statutory right to sell will not arise unless and until three months’ notice is given. We consider that the provision as to the length of the notice is a positive and obligatory one; failing obedience to it a notice is not valid. That being so, it seems to us that in failing to have the notice to say so, the Bank failed to give a valid notice, with the result the right of sale did not accrue under such a notice. Without any hesitation, the notice in the Russell case threatening a sale of the charged property on a 14 days’ notice was an invalid notice for accrual of a right of sale. It is, however, of interest to add that Mulla on The Transfer of Property Act (8th Edn.) at page 602 states as follows:- “No form of notice is prescribed. It is sufficient that the notice gives the mortgagor the prescribed period of warning.”

(c) If the default consists of the failure to perform or observe any covenant, express or implied, in the charge, the thing the chargor must do or desist from doing so as to rectify the default and the time, being not less than two months, by the end of which the default must have been rectified;

197 198

[2015] eKLR. [2000] 2 EA 550 (CAK).

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(d) The consequence that if the default is not rectified within the time specified in the notice, the chargee will proceed to exercise any of its remedies in accordance with the procedures provided for in this sub-part; and (e) The right of the chargor in respect of certain remedies to apply to the court for relief against those remedies. A borrower can be served with the notice personally; it can be left at his last place of residence or business or it may be sent by registered post to his last known postal address.199 The Court of Appeal in Nyangilo Ochieng & Another v Kenya Commercial Bank, Court of Appeal at Kisumu,200 held that the burden of proving that the notice has been served rests with the chargor. According to the Court of Appeal, It is for the chargee to make sure that there is compliance with the requirements of s.74 (1) of the Registered Land Act. That burden is not in any manner on the chargor. Once the chargor alleges non-receipt of the statutory notice it is for the chargee to prove that such notice was in fact sent.

Courts have held that the statutory notice “…should be very clear that should compliance with the demands of the Notice not be forthcoming in accordance with the Notice, the suit property shall be sold.”201 If the chargor does not comply within two months after the date of service of the notice referred to above, chargee can exercise any of the following remedies:202 1.

Sue the chargor for any money due and owing under the charge.

A chargee may sue for the money secured by the charge in three circumstances.203 First, if the chargor is personally bound to repay the money. Second, if by any cause other than the wrongful act of the chargor or chargee, the security is rendered insufficient and the chargee has given the chargor a reasonable opportunity to provide additional sufficient security and the chargor has failed to provide that additional security. Or third, if the chargee is deprived of the whole or part of the security through or in consequence of, a wrongful act or default of the chargor.

201 202 203 199 200

Ojienda, Aura-Odhiambo and Okoth, Land Law and Conveyancing, 210. Civil Appeal No. 148 of 1995 [1996] eKLR. Justice Francis Gikonyo in Albert Mario Cordeiro & another v Vishram Shamji [2015] eKLR. Section 90(3), Land Act (Act No. 6 of 2012). Section 91(1), Land Act (Act No. 6 of 2012).

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Appoint a receiver of the income of the charged land.

There is an implied condition in every charge that the chargee has the power to appoint a receiver of the rents, profits and income of the charged land.204 Before appointing a receiver, the chargee must serve a notice in the prescribed form on the chargor and shall not proceed with the appointment until a period of thirty days, from the date of the service of that notice, has elapsed.205 Once appointed, the receiver is deemed to be the agent of the chargor and the chargor is solely responsible for the acts and defaults of the receiver, unless the charge instrument provides otherwise.206 The reason for this is to avoid the chargee being treated as a chargee in possession or being held liable for the receiver’s acts which would be the case were the receiver to be treated as their agent.207 Thus, the receiver is a special agent whose primary responsibility is to protect the interests of the security holders and to realise the charged assets for their benefit. All the money received by the receiver is to be applied in the following order of priority: first, in the payment of all rents, rates, charges, taxes and other outgoings required to be paid in respect of the charged property. Second, in keeping down all annual sums or other payments, and the interest on all principal sums, having priority to the charge of which the receiver is appointed. Third, in payment of the receiver’s commission and expenses. Fourth, in payment of all reasonable expenses incurred in the doing of anything that a receiver is required or entitled to do in respect of the charged land. Such expenses include payments of any premiums on any insurance policy properly payable under the charge instrument, and the costs of undertaking necessary and proper repairs to any buildings comprised in the charged land as directed in writing by the chargee. Fifth, in the repayment of any money paid or advanced by the chargee to meet the reasonable expenses referred to in paragraphs (a), (b), (c) and (d) together with any interest on any amount so paid or advanced at the rate at which interest is payable on the principal sum secured by the charge. Sixth, in payment of the interest accruing due in respect of any principal sum secured by the charge. Seventh, in and towards the discharge of the principal sum secured by the charge, and payment of the residue, if any, to the chargor or other person entitled to the charged land.

206 207 204 205

Section 92(1), Land Act (Act No. 6 of 2012). Section 92(2), Land Act (Act No. 6 of 2012). Section 92(5), Land Act (Act No. 6 of 2012). Ojienda, Aura-Odhiambo and Okoth, Land Law and Conveyancing, 211-212.

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Lease the charged land, or if the charge is of a lease, sublease the land.

Unless the charge instrument expressly provides to the contrary, a chargee who has appointed a receiver has the power, subject to the provisions of the Land Act and any other laws applicable, to leases of land, grant leases in respect of the charged land or any part thereof and accept a surrender of any lease so granted and of any lease granted by the chargor.208 For that purpose he may execute, in place of the chargor, any instrument required to execute that lease or surrender in place of the chargor. Before granting the lease, the chargee must serve a notice on the chargor and cannot proceed with the granting or execution of that lease until thirty days have elapsed from the service of that notice.209 Every lease granted by the chargee must: be made to take effect no later than six months after its date; reserve the best rent that can reasonably be obtained in the circumstances; be for a term not exceeding fifteen years or the length of the term of the charge, whichever is the shorter; contain any reasonable terms and conditions, having regard to the interests of the chargor and of any other persons having an interest in the charged land; and contain a declaration that the chargee has appointed a receiver, with the date of the appointment.210 It is clear that in limiting the chargee’s power of lease in this manner, the law aims at protecting the leasehold interests of chargors. Before the Land Act was amended by the Land Laws Amendment Act 2016, it had a provision stating that if money has been advanced on the security of a customary charge, a lease created out of that charged land must be for a term not exceeding two years.211 In addition, there was a provision stating that in case of land used for agricultural purposes, the chargee must ensure that the chargor is left in possession of sufficient land and buildings to provide for the chargor and his/ her dependants.212 Moreover, in the case of a dwelling house, the chargee was to ensure that the chargor is left sufficient space in that dwelling house or is provided with alternative accommodation to enable the chargor to provide basic shelter for the chargor and his/her dependants living with the chargor.213 It is not clearly evident why Parliament repealed section 93(5) of the Land Act. The said section was informed by the need to balance between allowing communities who hold land cus 210 211 212 213 208 209

Section 93(1), Land Act (Act No. 6 of 2012). Section 93(2), Land Act (Act No. 6 of 2012). Section 93(3), Land Act (Act No. 6 of 2012). Repealed section 93(5)(a), Land Act (Act No. 6 of 2012). Repealed section 93(5)(b)(i), Land Act (Act No. 6 of 2012). Repealed section 93(5)(b)(ii), Land Act (Act No. 6 of 2012).

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tomarily to access finance, but at the same time safeguarding the communal rights of these communities to whom land is a source of survival and livelihood. 4.

Enter into possession of the charged land.

Upon expiry of the period specified in section 90(2)(b) and (c), a chargee may serve on the chargor a notice of intention to enter, notifying the chargor that they intend to enter into possession of the whole or a part of the charged land at a date that is at least one month from the date of the service of the notice.214 A chargee may exercise the power of entry peaceably or by use of reasonable force, and can do this in two ways. First, by entering into and taking physical possession of the land or a part of it peaceably and without committing any forcible entry. Two, by asserting management or control over the land by serving a notice in the prescribed form requiring any lessee of the chargor or any other owner of the land to pay to the chargee any rent or profits that would otherwise be payable to the chargor.215 However, the power of entry can only be exercised after obtaining a court order.216 A chargee in possession is bound by all the implied covenants set out in section 88(1)(a) to (e), (h), (i) and (j) as if that chargee were the chargor.217 The chargee in possession is also bound to apply all money to the same payments and in the same order as applies to a receiver as set out in section 92(8). However, a chargee in possession is not entitled to receive any payments as a receiver’s commission and expenses.218 A chargee withdraws from possession of the charged land if: a court makes an order directing the chargee to withdraw; the chargee appoints a receiver under section 90(3); the default which was the cause of the entry into possession has been rectified through the possession of the chargee; the chargee has exercised the power of sale under section 96; or the chargor has discharged all liabilities under the charge.219 5.

Sell the charged land.

Where a chargor is in default of the obligations under a charge and remains in default at the expiry of the time provided for the rectification of that default in the notice served on the chargor under section 90(1), a chargee may exercise the power 216 217 218 219 214 215

Section 94 (1), Land Act (Act No. 6 of 2012). Section 94 (2), Land Act (Act No. 6 of 2012). Section 94 (2), Land Act (Act No. 6 of 2012). Section 94 (5), Land Act (Act No. 6 of 2012). Section 94 (7), Land Act (Act No. 6 of 2012). Section 95(2), Land Act (Act No. 6 of 2012).

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to sell the charged land.220 Before exercising the power to sell the charged land, the chargee shall serve on the chargor a notice to sell in the prescribed form and shall not proceed to complete any contract for the sale of the charged land until at least forty days have elapsed from the date of the service of that notice to sell.221 Because there are other parties that may have interests in the charged land, a copy of the notice to sell must also be served on: (a) the National Land Commission if the charged land is public land; (b) the holder of the land out of which the lease has been granted, if the charged land is a lease; (c) a spouse of the chargor who had given consent; (d) any lessee and sublessee of the charged land or of any buildings on the charged land; (e) any person who is a co-owner with the chargor; (f) any other chargee of money secured by a charge on the charged land of whom the chargee proposing to exercise the power of sale has actual notice; (h) any guarantor of the money advanced under the charge; (i) any other person known to have a right to enter on and use the land or the natural resources in, on, or under the charged land by affixing a notice at the property; and (j) any other persons as may be prescribed by regulations, and shall be posted in a prominent place at or as near as may be to the charged land. Courts have given judicial imprimatur on the need to serve the chargor with a notice to sell. In Albert Mario Cordeiro & another v Vishram Shamji,222 the High Court, Justice Francis Gikonyo ruled that, ‘…in the absence of a Notice to sell under section 96(2) of the Land Act, the Statutory Power of Sale cannot be exercised even if the Statutory Notice, the Notification of Sale and the Redemption Notice have been issued.’

The Court noted, however, that failure to issue the notice to sell under section 96(2) of the Land Act cannot invalidate a statutory notice which has been issued properly under section 90 of the Land Act. Apart from the notification of sale, the chargor must also be served with a notification of sale by the auctioneer as required by the Auctioneers Rules 1997. The Auctioneers Rules require the auctioneer to, among other things, “…locate the property and serve the notification of sale of the property on the registered owner or an adult member of his family residing or working with him or where a

Section 96(1), Land Act (Act No. 6 of 2012). Section 96(2), Land Act (Act No. 6 of 2012). 222 [2015] eKLR. 220 221

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person refuses to sign such notification, the auctioneer shall sign a certificate to that effect.”223 Auctioneers must therefore act diligently while serving the notification of sale to ensure that they identify the person served, the place and the manner of service.224 In Moses Kibiego Yator v Ecobank Kenya Limited,225 the Environment and Land Court in Eldoret explained the kind of due diligence expected of the auctioneer in the following manner: ‘…the Applicant stated that he found the Notification of sale on 29 August,2013 in his home, the Prudent thing for the Defendant to have done would have been to have the Auctioneer swear an Affidavit and say, when, and upon whom, he served the Notification of sale. If the proprietor refused to sign, then the requisite certificate ought to have been attached. None was done and I have no material to doubt the averments of the Plaintiff that he was not served property…’ (sic)

An auctioneer must also give the chargor a written notice “…of not less than forty-five days within which the owner may redeem the property by payment of the amount set forth in the court warrant or letter of instruction.”226 Such a notice is called a notice of redemption. There appears to be some confusion in the law, as to whether there is need to have both a notification of sale under section 96(2) of the Land Act and a notice of redemption under the Auctioneers Rules.227 On one hand, it appears as though a notice of redemption under Rule 15 of the Auctioneers Act is sufficient for purposes of section 96(2) of the Land Act because it comes after the statutory notice. The notice of redemption is for 45 days which is more than the 40 days under section 96(2) of the Land Act and seems to give the chargor an opportunity to redeem the property, and notify the chargor of the impending sale of the property if the sum demanded is not paid within the 45 days provided in the notice.228On the other hand, the requirements under section 96(2) of the Land Act are mandatory and quite separate from the requirements under the Auctioneers Act. Although the redemption notice under the Auctioneers Act is also mandatory, it is issued separately from and after the one under section 96(2) of the Land Act suggesting they should apply sequentially.229 It is also worth noting that when section 96(2) of the Land Act was enacted in 2012, the provisions of the Auctioneers Act were existing law 225 226 227 228 229 223 224

Rule 15(c) of the Auctioneers Rules 1997. Per Justice Francis Gikonyo in Albert Mario Cordeiro & another v Vishram Shamji [2015] eKLR. [2014] eKLR. Rule 15(d) of the Auctioneers Rules 1997. Palmy Company Limited v Consolidated Bank of Kenya [2014] eKLR. Per Justice Francis Gikonyo in Albert Mario Cordeiro & another v Vishram Shamji [2015] eKLR. Per Justice Francis Gikonyo in Albert Mario Cordeiro & another v Vishram Shamji [2015] eKLR.

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as per section 7 of the Sixth Schedule of the Constitution. Moreover, rule 15 of the Auctioneers Rules applies to sale by public auction of any immovable property in execution of a decree or on instructions such as by a chargee, and is not specially tailored for purposes of section 96(2) of the Land Act.230 Similar views were expressed by the High Court in Palmy Company Limited v Consolidated Bank of Kenya.231 In this case, Justice Francis Gikonyo observed as follows: …I have not seen any notice to sell the charged land which was issued to the Applicant under section 96(2) of the Land Act. What I see in the documents annexed to the replying affidavit are the Statutory Notice by the chargee’s advocates, letter of instruction by the Defendant to the auctioneers, Redemption Notice and Notification of Sale by the auctioneers. In the absence of a notice clearly indicated to be a notice under section 96(2) of the Land Act, I am not able to legally pronounce that such notice was issued. However, I anticipate arguments will be made in the future and there is room to argue that the redemption NOTICE by the auctioneers was also a notice to sell by the chargee as envisioned in section 96(2) of the Land Act because it was issued by an agent duly instructed by the chargee and also informed the Applicant that its property will be sold after 45 days unless it redeems it. If that argument prevails, needless to state that the Redemption notice is a generous one for it exceeded the minimum 40 days envisaged under section 96(2) of the Land Act. Another element would kick in; that the law envisages a minimum of 40 days to elapse before completing a contract for sale of the charged land, which could mean the notice, should be for more than 40 days except any contract for sale of the charged land cannot be completed at least before 40 days have elapsed. That imagination brings me to the question whether the notice to redeem issued under rule 15(d) of the Auctioneers Rules could serve as a notice to sell under the Land Act.A practical problem would emerge; the notice under section 96(2) of the Land Act is a notice to sell not a notice to signify an intention to sell. Does it therefore, mean the notice under section 96(2) of the Land Act should specify the date of sale as does the redemption notice issued under the Auctioneers Rules? There could be as many and varied arguments on this point. But I will take a more pragmatic and purposive approach of the law.

There is wisdom in treating the notification of sale under section 96(2) of the Land Act and the notice of redemption separately and as sequential. In view of the principle of securing land rights for all Kenyans, a sequential treatment of the two legal provisions could be interpreted as giving effect to the equity of redemption (which had been left for judicial interpretation before the Land Act 2012) and which cannot be clogged or fettered in any way.

230 231

Per Justice Francis Gikonyo in Albert Mario Cordeiro & another v Vishram Shamji [2015] eKLR. [2014] eKLR.

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Some judges have taken a completely contrary view arguing that Rule 15(d) of the Auctioneers Rules is a nullity and ought not to be complied with as it is ultra vires the Auctioneers Act. In Komassai Plantations Limited v Bank of Baroda (Kenya) Limited,232 Nyamu J expressed himself thus: The Auctioneers Act number 5 of 1996 has expressed its general purpose as follows: ‘an Act of Parliament to consolidate and amend the law relating to auctioneers, to provide for licensing and regulation of the business and practice of auctioneers and for connected purposes’. In the face of this very clear objective of the Act, I hold that providing in the subsidiary legislation made under the Auctioneers Act for 45 days’ notice before the sale is ultra vires the Auctioneers Act and its general purpose as expressed above and, therefore, rule 15(d) of the Auctioneers Rules made under the Act is a clog on the power of sale and violates section 69A and 69B of the ITPA and section 65 and 74 of the RLA (Chapter 300) in so far as it purports to provide for an additional notice under the Auctioneers Act. The creation of a new law to provide for an additional redemption notice in the subsidiary legislation is clearly ultra vires the Auctioneers Act and a clog on section 69A and 69B of the ITPA and section 65 and 74 of the RLA. I therefore hold that rule 15(d) is void and a nullity.

It is worth noting that although Justice Nyamu’s minority view is moving and very plausible, it lacks support from the Court of Appeal, with the consequence that courts continue to treat Rule 15(d) of the Auctioneers Rules as being valid as illustrated by the recent cases of Palmy Company Limited v Consolidated Bank of Kenya,233 Albert Mario Cordeiro & another v Vishram Shamji234 and Moses Kibiego Yator v Ecobank Kenya Limited.235 (vii) Reopening of charges over matrimonial property To secure matrimonial property, a court is given the power to reopen a charge of whatever amount secured on a matrimonial home, in the interests of doing justice between the parties.236 Some of the factors that the court may consider before reopening a charge are: (i)

The age, gender, experience, understanding of commercial transaction, and health of the chargor at the time when the charge was created, if the chargor is an individual;

(ii) The financial standing and resources of the chargor relative to those of the chargee at the time of creation of the charge; 234 235 236 232 233

[2003] 2 EA 532. [2014] eKLR. [2015] eKLR. [2014] eKLR. Section 105, Land Act (Act No. 6 of 2012).

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(iii) The degree to which, at the time of the creation of the charge, the chargor was under financial pressure and the nature of that pressure; (iv) The interest rates prevailing at the time of the creation of the charge and during the continuation of the charge and the relationship of those interest rates to the interest rate applying from time to time in the charge; (v)

The degree of risk accepted by the chargee, having regard to the value of the charged land and the financial standing and other resources of the chargor;

(vi) The importance of not undermining the confidence of reputable chargees in the market for charges; and (vii) Any other factor that the court considers relevant.

Reopening of charges over matrimonial property aims at the protection of matrimonial property in line with the provisions of the Matrimonial Property Act as discussed in Chapter Ten. For the court to exercise its powers under Section 106 of the Land Act, the property must be one secured by a matrimonial home as laid out in Section 105 and not a commercial property. In Harroil Petroleum Holding Ltd v Consolidated Bank Ltd & Another237 the Court dealt with an application by a company seeking relief under the provisions of Section 106 where the charge was secured on a commercial property.The Court was of the view that “the provisions of Section 105 and 106 must be read together, such that relief can only be claimed, if the charge is one secured by a matrimonial home.”238 However, financial institutions have argued that the reopening of charges prejudices them as it is tantamount to imposing terms not contemplated in a contract239 and may destroy certainty in commercial dealings.

11.2.6 Leases Under the Land Act a lease refers to ‘the grant, with or without consideration, by the proprietor of land of the right to the exclusive possession of his or her land, and includes the right so granted and the instrument granting it, and also includes a sublease but does not include an agreement for lease’.240 The owner of private Eldoret E & L No. 335 of 2013. See also Michael Ronoh Kimutai & 2 Others v Consolidated Bank Of Kenya Ltd [2013] eKLR, where Justice Munyao Sila declined to grant relief to the Plaintiffs as there was no evidence that the property was the matrimonial home of the Plaintiffs. Although the couple was able to prove marriage by producing a marriage certificate, they were not registered as proprietors of one of the properties. 239 Such an argument was advanced by the chargee in Joseph Muruka v National Bank of Kenya Limited [2015] eKLR. 240 Section 2, Land Act (Act No. 6 of 2012). 237 238

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land has the power to lease the land or part of it for a definite period or for the life of the lessor or of the lessee or for a period that may be terminated by the lessor of the lessee.241 Leases can either be periodic, short-term, future, or can terminate upon the occurrence of a certain future event.242 The covenants implied on the part of the lessor and lessee have been discussed in Chapter Nine. Leases can also be transferred and assigned as explained earlier. It is important to note that the Constitution provides that all non-citizens can only hold land under a lease for a period of 99 years and where an instrument purports to confer an interest larger than that it will be regarded as conferring a ninety-nine year leasehold interest.243 Further, the Sixth Schedule to the Constitution provides that on the effective date (27 August 2010), any freehold interest in land in Kenya held by a person who is not a citizen reverts to the republic of Kenya to be held on behalf of the people of Kenya, and thereafter the state shall grant that person a ninety-nine year lease at a peppercorn rent.244 Likewise, any other interest in land in Kenya greater than a ninety-nine year lease held by a non-citizen was converted to a ninety-nine year lease on the effective date.245

11.2.7 Minimum and maximum holding of private land The National Land Policy outlines the rationale underlying the limiting of the minimum and the maximum acreage of land held by private citizens due to the fact that land is a finite resource which ought to be utilised sustainably.246 Whereas population growth and increased demand for land have resulted in the excessive fragmentation of land into uneconomic units, there are a few people who hold large pieces of land which are not optimally utilised.247 The National Land Policy therefore urged the government to ensure that all sub-divisions of land are tied to land use sizes specified for different ecological zones by putting in place a system to determine economically viable minimum land sizes for various zones; and promoting conformity of land subdivisions with the set minimum economically viable

243 244 245 246 247 241 242

Sections 55, Land Act (Act No. 6 of 2012). Sections 57-61, Land Act (Act No. 6 of 2012). Article 65(2), Constitution of Kenya (2010). Section 8(1), Sixth Schedule to the Constitution of Kenya (2010). Section 8(2), Sixth Schedule to the Constitution of Kenya (2010). Republic of Kenya, Sessional paper no. 3 of 2009 on national land policy, 9. Republic of Kenya, Sessional paper no. 3 of 2009 on national land policy, 29.

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land sizes.248 It is in this context that the Constitution requires Parliament to enact a law prescribing minimum and maximum land holding acreages with respect to private land.249 However, implementation of this policy raises a number of issues. Firstly, it is seen as limiting the right of individuals to own private property. Secondly, even in the event that such a law is implemented, what happens to the land falling below the set minimum? Will the owners lose them or will they be compulsorily acquired by the government? What will happen to the individuals who own sizes in excess of the prescribed maximum? Will the excess pieces be given to those whose sizes fall below the minimum or will they be acquired by the state? The Minimum and Maximum Land Holding Acreages Bill, 2015, has been drafted but is not yet law in spite of the constitutional deadline of 5 years, which expired on 27 August 2015. The objects and purposes of the Act are to establish a legal framework and procedures for determining minimum and maximum land holding acreages in respect of private land; reducing inequality and promoting equitable distribution of land; regulating subdivision of land to ensure that land is held in economically and viable parcels; providing for the regular review of land holdings and the reorganisation of rural settlements; and facilitating self-employment, sustainable utilisation of private land and promotion of national security and economic stability.250 According to the Bill, it is not to apply retrospectively.251 Being a restitutive Act, this provision may not be effective in addressing problems arising from landholding disparities which are historical as highlighted in the TJRC Report. The Bill has outlined the minimum and maximum landholding acreages for different areas but it remains unclear how this was arrived at, eliciting reactions from various quarters including the National Land Commission arguing that the Bill is inconsistent with the Constitution based, among others, on the fact that the Bill is not informed by any scientific study or known criteria.252 However, as discussed earlier, the recent amendments to the land laws have deleted section 159 of the Act which, among other things, required the Cabinet Secretary to “commission a scientific study to determine the economic viability of minimum and maximum acreages in 250 251 252 248 249

Republic of Kenya, Sessional paper no. 3 of 2009 on national land policy, 29. Article 68(c), Constitution of Kenya (2010). Clause 3, Minimum and Maximum Land Holding Acreage Bill (2015). Clause 5, Minimum and Maximum Land Holding Acreage Bill (2015). See Mathenge G, ‘Provisions of proposed pan for re-allocation raises critical questions’ The Standard, 12 July 2015.

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respect of private land for various land zones in the country” within one year after the Land Act came into force.253 Clearly, this depicts the lack of political goodwill in land reforms especially in dealing with land inequalities which can be addressed by prescribing minimum and maximum acreages in various zones. It is not difficult to understand why the political class (who are the largest landowners in the country) are mutilating land laws to defeat the object of having a law on minimum and maximum acreage for private land. Under the Bill, the Cabinet Secretary in charge of land is required to issue guidelines on the determination of land-holding among married couples and family members; the determination of land holding by non-citizens; the regulation of land holding for different land uses by one person, and any other matter relating to landholding.254 The Bill further empowers the Cabinet Secretary to grant exemptions to private land holders in cases of: large-scale farming; wildlife conservation; cattle ranges in arid areas; forestry; educational, religious or charitable trusts; major investment concerns; and other land use with significant economic or social value.255 The Cabinet Secretary must publish the conditions to be met for the exemption.256 It is dangerous to vest such sweeping powers in the Cabinet Secretary as they are prone to abuse. The Cabinet Secretary is to commission reviews of the minimum and maximum land holding acreages at intervals of not less than eight years and not more than twelve years. Scientific studies are to be conducted to determine the economic viability of minimum and maximum acreage in respect of private land for various land zones in the country.257 In order to ensure enforcement of the provisions, the Bill requires the Registrar not to accept for registration any document of deposition conferring interest in land that leads to the breach of the maximum and minimum acreages in the case of private land.258 The excess land may be acquired by the national or county government and redistributed to landless persons capable of putting the land to economic use.259 In the case of a person who holds land in excess of the prescribed limit and fails to put it to proper use, such land must be taxed in accordance with land use 255 256 257 258 259 253 254

See section 101, Land Laws (Amendment) Act, 2016. Clause 6, Minimum and Maximum Land Holding Acreage Bill (2015). Clause 10(1), Minimum and Maximum Land Holding Acreage Bill (2015). Clause 10(2), Minimum and Maximum Land Holding Acreage Bill (2015). Clause 7-8, Minimum and Maximum Land Holding Acreage Bill (2015). Clause 11(1), Minimum and Maximum Land Holding Acreage Bill (2015). Clause 22(1), Minimum and Maximum Land Holding Acreage Bill (2015).

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laws.260 Holders of land may engage in cooperative farming by pooling their land and other resources together to enable them engage in large-scale farming and share the earnings.261 This is intended to be a solution where the individuals hold land falling below the prescribed minimum. With respect to the institutional framework, the Bill establishes a Land Control Committee which is to consist of the sub-County Commissioner, among others.262 Firstly, the establishment of this institution may conflict with the National Land Commission which is also in charge of land management.263 In this regard, institutional overlaps are inevitable. The office of the county commissioner is unknown to the Constitution and its legality has been questioned. Therefore, the composition of the Committee has to be understood as part of the historical narrative of interference in land administration by the central government. Other bodies like the Institution of Surveyors of Kenya (ISK), which were instrumental in the formulation of the National Land Policy, have raised concerns over the Bill arguing that the drafting process was rushed thus barring participation by key stakeholders and the public.264 Other concerns raised by the Institution include the fact that no scientific study was commissioned by the Cabinet Secretary to inform the legislation as required by Section 159(1) of the Land Act.265 ISK made a raft of recommendations including that the Bill should be referred back to the Ministry to allow an all-inclusive consultation to take place and that the drafting of the Bill should take cognisance of the requirements set by other laws.266

262 263 264

Clause 22(4), Minimum and Maximum Land Holding Acreage Bill (2015). Clause 23(1), Minimum and Maximum Land Holding Acreage Bill (2015). Clause 12, Minimum and Maximum Land Holding Acreage Bill (2015). Section 18, National Land Commission Act (Act No. 5 of 2012). See Institution of Surveyors of Kenya, ‘Press statement: Minimum and Maximum Land Holding Acreage Bill, 2015’. 265 It is worth noting that section 159 of the Land Act requiring a scientific study to be conducted has been deleted by the Land Laws (Amendment) Act (Act No. 28 of 2016), and replaced by a new provision. The new section 159 of the Land Act now reads as follows: 159. (1) Subject to Article 40 of the Constitution(a) the minimum land holding acreage shall be subject to the provisions of Article 66(1) of the Constitution and the legislation envisaged therein. (b) the maximum land holding acreage shall be subject to Article 60(1)(a) and (c) of the Constitution. (2) The Cabinet Secretary shall publish guidelines on the penalties for non-compliance with the provisions of this section. 266 See Institution of Surveyors of Kenya, ‘Press Statement: Minimum and Maximum Land Holding Acreage Bill, 2015’. 260 261

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11.3 Community land Article 63 of the Constitution vests the management of community land in the communities and the county governments. Community land vests in and is to be held by communities identifiable on the bases of ethnicity, culture or similar community of interest. The Fifth Schedule of the Constitution on the Legislation to be enacted by Parliament required that the law on community land was supposed to have been enacted five years after the coming into force of the Constitution. Lack of political will saw Parliament miss the initial deadline imposed by the Constitution (27 August 2015) and the Community land law was subsequently enacted in 2016 after Parliament had extended the deadline by a year.267 The Community Land Act defines the three bases for holding community land more broadly. It defines a ‘community’ as a consciously distinct and organised group of users of community land who are citizens of Kenya and share any of the following attributes-common ancestry; similar culture or unique mode of livelihood; socio-economic or other similar common interest; geographical space; ecological space; or ethnicity.268 It is apparent that the law has attempted to take into account the dynamism of communities, for instance, by catering for communities with different ethnic or cultural heritage but which have been sharing land and related resources. Therefore, the socio-economic or similar community of interests is a basis for holding land especially in light of the ethnicised socio-politics of the country and increased interactions among different communities. Such bases can also promote cohesion among the various groups without regard to ethnicity.269 Under the Act, community land is vested in communities and is to be held on customary, freehold, leasehold and such other tenure system recognised by the Act or other written law.270 Customary land rights including those held in common have “equal force and effect in law with freehold or leasehold rights acquired through allocation, registration or transfer.”271 Communities can charge their land as security with financial institutions. However, charges over community land are valid only if

http://www.monitor.co.ke/2015/08/26/extending-timelines-pass-constitutional-bills-needs-arrested/ on 23 October 2015. 268 Section 2, Community Land Act (Act No. 27 of 2016). 269 Odote C, ‘The legal and policy framework regulating community land in Kenya: An appraisal’ Friedrich Ebert Stiftung, Nairobi, 2013, 31. 270 Section 4(3), Community Land Act (Act No. 27 of 2016). 271 Section 5(3), Community Land Act (Act No. 27 of 2016). 267

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the charge is done with the concurrence of members of the family or community.272

11.3.1 Management of community land under the Act Management of community land by community assemblies is to be done in a democratic manner and decisions on community land shall be made by not less than two thirds of the community assembly.273 A community assembly is to elect between seven and fifteen members of the assembly who will constitute a community land management committee. It is the community land management committee that will be responsible for the day-to-day affairs of the community and management and administration of community land on behalf of the respective community.274 It is also the responsibility of the committee to coordinate the development of community land use plans and to promote the co-operation and participation among community members in dealing with matters pertaining to the respective registered community land.275 A decision to dispose of or alienate community land by a registered community shall be binding if it is supported by at least two thirds of registered members of the community.276 Unregistered community land is to be held by county governments in trust for communities.277 Upon registration of the community land, it would follow that the registered respective community would resume management and the trustee role of the county government ceases. The establishment of community assemblies and the community land management committees may water down traditional governance structures for the management of land and land-based resources especially where communities are identified on the basis of ethnicity or similar cultures such as pastoralism or hunting and gathering. Most traditional communities in Kenya have traditional structures that are unique and therefore requiring communities to have assemblies without taking into account this social fact is fallacious. Traditional governance institutions such as those amongst the Kamasian council of elders of the Kipsigis, the Kaya elders among the Mijikenda people or the Njuri Ncheke among the Ameru are vital in land management.278 The composition of these institutions is largely drawn 274 275 276 277 278 272 273

Section 90(4), Land Act (Act No. 6 of 2012). Section 15(2), Community Land Act (Act No. 27 of 2016). Section 15(4), Community Land Act (Act No. 27 of 2016). Section 15(4), Community Land Act (Act No. 27 of 2016). Section 15(5), Community Land Act (Act No. 27 of 2016). Section 6(1), Community Land Act (Act No. 27 of 2016). See Kariuki F, ‘Conflict resolution by elders in Africa: Successes, challenges and opportunities’ The

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from one tribe or ethnicity, and therefore providing for a community assembly that may include non-members of the tribe or ethnicity is a misconception of the commons. The fact that the law overlooks the already existing traditional governance structures and goes ahead to create its own formal institutions signifies the continued attempt, as explained by Okoth-Ogendo, to expropriate the commons property regimes.279 There is a need to engage ethnic and indigenous communities and their indigenous institutions in managing their lands and territories as observed by the Inter-American Court of Human Rights. In Saramaka People v Suriname,280 the Court was of the view that consultations with the intention of acquiring traditional resources must not be done using the state established mechanisms but ‘...through culturally appropriate procedures...’ It is, therefore, evident that the cultural institutions of ethnic and indigenous communities occupy a central role in the management and control of their properties and must be adhered to. The Act further allows at least two thirds of the members of the registered community to alienate community land. This is contrary to the management of the African commons using the inverted pyramid explanation by Okoth-Ogendo. The decision-making at the base of the pyramid does not entail the appropriation of the radical title: Decisions made at each level are not necessarily taken collectively. Rather, they are made by reference to common values and principles internalized at any such level. Decisionmaking at the base of the pyramid, however, further entails responsibility for the protection of the territory of the group as a whole; a function which does not entail appropriation of the radical title to the Commons. The location of radical title always was, and remains, in all members of the group past, present and future, constituted as corporate entities. 281

Therefore, provisions in the Community Land Act stipulating that the present members of the community (without taking into account the dynamics of communities especially with migrations and intermarriages) can alienate the land implies that the future generations are denied the opportunity to participate in ownership of a resource that is a trans-generational asset in nature. What of the rights of the past generations, the ancestors or spirits who are also regarded as owners of ancestral lands? It would be important for the management of community resources to be informed by the transgenerational norm. Judicial approval for this view has already Chartered Institute of Arbitrators Centenary Conference ‘Learning from Africa’, Livingstone, 15 July 2015. 279 See Okoth-Ogendo H, ‘The tragic African commons: A century of expropriation, suppression and subversion’ 1 University of Nairobi Law Journal (2003), 107. 280 Judgment of 28 November 2007. 281 Okoth-Ogendo, ‘The tragic African commons’, 108.

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been expressed by the Supreme Court of Philippines in Minors Oposa v Secretary of the Department of Environmental and Natural Resources282 where a group of children instituted legal proceedings to bar the cutting down of the rain forests in their country. Among the arguments raised by the children was that the cutting down of the trees contravened the principle of intergenerational equity and that the acts amounted to the present generation stealing resources from their children and the generations to come. The Court agreed with the children and required the State to uphold the intergenerational responsibility in exploitation of the resources. From this perspective, the Kenyan provision, therefore, amounts to a situation where the present generation may even consume all the communal resources leaving their children and the future generations with nothing to survive on. The customs and practices of pastoral communities relating to land such as grazing rights have been recognised in the Act.283 Interestingly, communities may also reserve special purpose areas including: farming areas; settlement areas; community conservation areas; access and rights of way; cultural and religious sites; urban development or any other purpose as may be determined by the community, county government or the national government for the promotion of public interest.284 Although, there is a sound rationale for reserving special purpose areas, providing the county or national government with the power to determine such areas is dangerous as the power can be exercised to the detriment of community land and communities. Natural resources found in community land are to be used and managed sustainably and productively; for the benefit of the whole community including future generations; with transparency and accountability; and on the basis of equitable sharing of accruing benefits.285 In this regard, it requires agreements relating to investment in community land to be made after a free, open and consultative process.286 For an agreement between an investor and the community to be valid, a community assembly meeting must be called and two thirds of adult members of that community must vote in favour.287 Under the Mining Act, where the holder of a mining right wants to acquire community land, the Cabinet Secretary in consultation with the community and the National Land Commission must ensure that 284 285 286 287 282 283

Judgment of 30 July 1993. Section 28(1), Community Land Act (Act No. 27 of 2016). Section 29(1), Community Land Act (Act No. 27 of 2016). Section 35, Community Land Act (Act No. 27 of 2016). Sections 36(2) and (3), Community Land Act (Act No. 27 of 2016). Section 36(3), Community Land Act (Act No. 27 of 2016).

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where inhabitants or communities prefer to be compensated by way of resettlement as a result of being displaced by a proposed mineral operation, they are settled on suitable alternate land, with due regard to their economic wellbeing, social and cultural values and the resettlement is carried out in accordance with the relevant physical planning law.288 The costs of such resettlement are to be borne by the holder of the mineral right.289 It is worth noting that the management of community land is subject to national and county government laws and policies relating to: fishing, hunting and gathering; protection of animals and wildlife; water protection; forestry; environmental laws; energy policy and exploitation of minerals and natural resources.290 One cannot but wonder why the law makes this provision in light of the fact that indigenous communities and marginalised groups in Kenya have criticised the national government for implementing such policies to their detriment. A case in point is the government’s policy of not recognising the customary rights of forest dwelling communities like the Ogiek to the Mau Forest, and the gazettement of Lake Bogoria as a game reserve which led to the violation of the land rights of the Endorois people. Community forests also make up a category of land whose management is vested in the communities.291 The Forests Conservation and Management Act provides for the creation and management of community forests292 which are to vest in the community. Communities can engage in the management of these forests and it is through the community forest associations that they are to be established.293

11.4 Conclusion Although the land law reforms undertaken so far are a step in the right direction in securing all categories of land, and especially for community land, the lack of political goodwill is occasioning a serious erosion of the gains already made. The unending amendments to the land laws through miscellaneous and amendment statutes attest to this. By divesting the National Land Commission of some of its 290 291 292 293 288 289

Section 153(8), Mining Act (Act No. 12 of 2016). Section 153(9), Mining Act (Act No. 12 of 2016). Section 38(2), Community Land Act (Act No. 27 of 2016). Section 30(1), Forest Conservation and Management Act (Act No. 34 of 2016). Section 32, Forest Conservation and Management Act (Act No. 34 of 2016). Section 48, Forest Conservation and Management Act (Act No. 34 of 2016).

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powers and functions, Parliament has already set the stage and offered the executive the necessary platform for undermining the oversight role of the Commission in land administration. This is most likely going to take us back to the era of highly centralised, bureaucratic, corrupt, inefficient and unsustainable land management and administration.

Chapter Twelve

LAND ADMINISTRATION AND DELIVERY OF SERVICES

12.0 Introduction Land administration is the process by which information on the ownership, value and use of land is determined, recorded and disseminated.1 Land information comprises textual records, which define the rights, and spatial records, which define the context in which the rights apply.2 The aim is to guarantee land records, security of tenure and to increase certainty in land transactions and create economic development and social stability.3 Since land administration is primarily concerned with ownership, value, and use of land,4 it covers the following key functions: ascertaining and registering land rights; allocating and managing land; facilitating efficient land transactions; developing and maintaining an efficient and accurate land information system; developing methods of assessing land for fiscal management and revenue collection; and devising efficient and accessible land dispute resolution mechanisms.5

1 2

Republic of Kenya, Sessional paper no. 3 of 2009 on national land policy, 2009, 34. Burns T, Grant C, Nettle K, Brits A and Dalrymple K, ‘Land administration reform: Indicators of success, future challenges’ Land Equity International Pty Ltd, 2006, 8. Williamson IP, ‘Land administration ‘best practice’ providing the infrastructure for land policy implementation’ 18 Journal of Land Use Policy, 4 (2001), 297–307. Lengoiboni M, ‘Pastoralists seasonal land rights in land administration: a study of northern Kenya’ Phd Thesis, Wageningen University, Netherlands, 4. Burns, Grant, Nettle, Brits and Dalrymple, ‘Land administration reform’, 7. Burns, Grant, Nettle, Brits and Dalrymple, ‘Land administration reform’, 7.

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Land rights delivery is the process through which the institutional framework and personnel are mobilized to ascertain and register land rights.6 Land adjudication is the process in which the rights and interests claimed by persons are ascertained and recorded. The rights are then entered into a register which becomes the source of land information.7 In Kenya, land rights delivery has only been accessible to a few privileged individuals necessitating the land administration process to be democratised. Democratising land administration requires that all land rights holders are fully informed, and are able to participate in the process; and land administration processes are insulated from political interference in order to ensure that land is appreciated as property and not as political service.8 Land administration has not met the aspirations of Kenyans.9 Problems in land administration have manifested themselves in the social, economic and political spheres, for example with increased tenure insecurity, land conflicts and squatting.10 Neglect of traditional land governance structures in law and policy also complicates land administration, as the informal and formal land tenure frameworks continue to operate side by side.11 To address some of these problems, people, especially those in informal settlements, have resorted to extra-legal land administration processes to secure access to land.12 These challenges in land administration show the need for a national land policy to streamline land administration systems and functions.13

12.1 Institutional frameworks for land administration The current institutional framework derives its legal basis from the Constitution of Kenya, 2010, and the land laws enacted pursuant to the constitutional 8 6 7

10 11

12 13

Republic of Kenya, Sessional paper no. 3 of 2009 on national land policy, 35. Republic of Kenya, Sessional paper no. 3 of 2009 on national land policy, 35. Republic of Kenya, Report of the Commission of inquiry into the land law system of Kenya on principles of a national land policy framework, constitutional position of land and new institutional framework for land administration, 2002, 72. Republic of Kenya, Report of the Commission of inquiry into the land law system of Kenya, 101. Republic of Kenya, Sessional paper no. 3 of 2009 on national land policy, ix. Okoth-Ogendo HWO, ‘The last colonial question: An essay in the pathology of land administration systems in Africa’ A keynote presentation at a Workshop on Norwegian Land Tools Relevant to Africa, Oslo, Norway, 3-4 May 2007, 4-6. Republic of Kenya, Sessional paper no. 3 of 2009 on national land policy, 8. Republic of Kenya, Sessional paper no. 3 of 2009 on national land policy, x.

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provisions. The National Land Policy of 2009 had proposed a complete overhaul of the then existing institutions which were inefficient, inequitable, highly centralized, complex and exceedingly bureaucratic resulting in corruption and exclusion of the public in the administration of land. The Policy proposed that the development of the new institutions be guided by principles including devolution of power, stakeholder participation, operational autonomy, access to justice and appropriate enforcement mechanisms.14 Currently, land administration institutions include the National Land Commission, the Community Land Management Boards, the Ministry of Land and Physical Planning and the Environment and Land Court. The Constitution in the Fourth Schedule also assigns the county governments certain functions that are critical in the administration of land within their various localities.15 (a) The National Land Commission The need for a National Land Authority had been proposed by the Njonjo Land Commission.16 Kenyans had raised concerns with the then existing land institutional framework,17 which was centralized, concentrating too much power in the hands of the President and the Commissioner of Lands particularly in the allocation of public land.18 Likewise, the National Land Policy, 2009, reports that the then existing institutional framework was highly centralized, complex, exceedingly bureaucratic, corrupt, inefficient, that it lacked accountability and did not engender public participation in land administration and management. The Policy proposed an overhaul of the framework and the establishment of a National Land Commission (NLC), District Land Boards (DLBs) and County Land Management Boards (CLBs).19 The independence and accountability of the proposed commission was at the heart of the proposed reforms since the centralized control and issuance of orders from the Ministry of Lands had greatly compromised the independence of land institutions.20 Therefore, the Policy recommended that the commission be given

Republic of Kenya, Sessional paper no. 3 of 2009 on national land policy, 54. Such functions include county planning and development; implementation of specific national government policies on natural resources and the environmental conservation including soil and water conservation and forestry; and county public works. 16 Republic of Kenya, Sessional paper no. 3 of 2009 on national land policy, 108. 17 Republic of Kenya, Sessional paper no. 3 of 2009 on national land policy, 143. 18 Republic of Kenya, Sessional paper no. 3 of 2009 on national land policy, 143. 19 Republic of Kenya, Sessional paper no. 3 of 2009 on national land policy, 54. 20 Republic of Kenya, Sessional paper no. 3 of 2009 on national land policy, 55. 14 15

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sufficient autonomy and independence but be made accountable to the people of Kenya. To achieve this, the Policy proposed the entrenchment of the National Land Commission in the Constitution with broad representation, expertise, integrity and equity being observed in selecting its commissioners.21 Currently, the Commissioners of the NLC are persons with diverse backgrounds, including surveyors, urban planners, environmentalists and lawyers.22 It further proposed the enactment of a ‘National Land Commission Act’ to grant operational autonomy to the commission, so that it is accountable to Parliament for its operations. It also required ministerial policy directions to the Commission to be tabled in Parliament and facilitate public participation and the application of democratic principles in establishing and managing the Commission.23 These proposals and recommendations have been incorporated into the Constitution of Kenya, 2010. Article 67(2) establishes the National Land Commission whose functions are: to manage public land on behalf of the national and county governments;24 to recommend a national land policy to the national government;25 to advise the national government on a comprehensive registration of land titles programme in the whole country;26 to conduct research related to land and use of natural resources and make recommendations to relevant authorities;27 to investigate and recommend remedies, on its own motion or pursuant to a complaint, on present or historical land injustices;28 to encourage the use of traditional dispute resolution mechanisms in land conflict resolution;29 to assess land tax and immovable property premiums in areas legally prescribed;30 and to monitor and oversee land use planning in the country.31 The Commission may also perform any other functions as prescribed by national legislation.32 Pursuant to Article 67(3), Parliament enacted the National Land

Republic of Kenya, Sessional paper no. 3 of 2009 on national land policy, 54. See National Land Commission, ‘Commissioners’ http://www.landcommission.go.ke/about-nlc/commissioners on 10 November 2016. 23 Republic of Kenya, Sessional paper no. 3 of 2009 on national land policy, 56. 24 Article 67(2)(a), Constitution of Kenya (2010). 25 Article 67(2)(b), Constitution of Kenya (2010). 26 Article 67(2)(c), Constitution of Kenya (2010). 27 Article 67(2)(d), Constitution of Kenya (2010). 28 Article 67(2)(e), Constitution of Kenya (2010). 29 Article 67(2)(f), Constitution of Kenya (2010). 30 Article 67(2)(g), Constitution of Kenya (2010). 31 Article 67(2)(h), Constitution of Kenya (2010). 32 Article 67(3), Constitution of Kenya (2010). 21 22

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Commission Act.33 The Act makes provisions on additional functions, qualifications and procedures for membership to the Commission and gives effect to the objects and principles of devolved government in land management and administration. The additional functions assigned to the National Land Commission by the Act are: alienating public land on behalf and with the consent of both levels of government;34 monitoring the registration of all rights and interests in land;35 ensuring sustainable management of public land and land under the management of designated state agencies for the specified purpose and the benefit of future generations;36 developing and maintaining an effective land information management for public land.37 It also has a role in the conversion of land from one category to another. Public land can be converted to private land by allocation.38 Public land may be converted to community land, only in accordance with public needs or in the interest of defence, public safety, public order, public morality, public health, or land use planning.39 Community land may also be converted to either private or public land in accordance with the Community Land Act.40 Before conversion of community land to any other category, the Community Land Act requires the maintenance of a community land register that shall contain the particulars of all conversions involving community land and the particulars in section 8(1) of the Land Registration Act.41 In addition, before the conversion of registered community land into any other category of land, a registered community must seek and obtain approval from two thirds of the community assembly in a special meeting convened for that purpose.42 These provisions are of critical importance in ensuring the protection of community 35 36 33 34

41 42

Act No. 5 of 2012. Section 5(2)(a), National Land Commission Act (Act No. 5 of 2012). Section 5(2)(b), National Land Commission Act (Act No. 5 of 2012). Section 5(2)(c), National Land Commission Act (Act No. 5 of 2012). See amendment in Section 37(a) (i), Land Laws (Amendment) Act (Act No. 28 of 2016). Section 5(2)(d), National Land Commission Act (Act No. 5 of 2012). See amendment in Section 37(a) (ii), Land Laws (Amendment) Act (Act No. 28 of 2016). Section 9(2)(a), Land Act (Act No. 6 of 2012). See amendment in Section 45(a), Land Laws (Amendment) Act (Act No. 28 of 2016). Section 9(2)(b), Land Act (Act No. 6 of 2012). See Amended by Section 45, Land Laws (Amendment) Act (Act No. 28 of 2016). Section 9(2)(d), Land Act (Act No. 6 of 2012). See also Part V, Community Land Act (Act No. 27 of 2016). Section 21(1), Community Land Act (Act No. 27 of 2016). Section 21(2), Community Land Act (Act No. 27 of 2016). Section 2 thereof defines a ‘community assembly’ as a gathering of registered adult members of a community convened in accordance with this Act.

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land and ensuring that expropriation of community land does not happen without due regard to the requirements set by law. Private land can be converted to public land by compulsory acquisition, reversion of leasehold to the government, transfers, or surrender The Commission is charged with the mandate of compulsory acquisition of interests in land on behalf of the national and county governments, and the procedure for doing this is outlined in Part VIII of the Land Act, 2012. Under the Land Act, land may be compulsorily acquired, if it is required for a public purpose or in the public interest as related to and necessary for fulfilment of the stated public purpose.43 Before land is compulsorily acquired, the national or county government is required to submit a request for acquisition to the Commission and the Commission is to prescribe criteria and guidelines to be adhered to by the authorities in the acquisition of land.44 The Act further provides that in the event that the Commission has not undertaken the acquisition for the reasons stated in the Act, the Commission shall give the acquiring authority reasons for the decline and the conditions that must be met by the acquiring authority.45 The Commission exercises an adjudicative function in undertaking the review of dispositions of public land as provided under Article 68(c) (v) of the Constitution.46 It is required to review the dispositions either pursuant to a complaint by the national or county government, a community or an individual or on its own motion to establish their propriety or legality. This must be done within five years of commencement of the Act. The review of dispositions has to be made subject to the provisions of Articles 40, 47 and 60 of the Constitution, and the persons having an interest in the land in question have to be given a notice and an opportunity to be heard and to inspect any relevant documents. The Commission may direct title revocation where land is found to have been illegally acquired and may make orders for correction in the case of an irregular acquisition.47 Based on the historical land challenges that have plagued allocation of land in Kenya, this proves to be an important mandate though a daunting one. Before review of titles is done notice must be issued to all interested parties. In Republic v National Land Commission

Section 110(1), Land Act (Act No. 6 of 2012). Section 107(2), Land Act (Act No. 6 of 2012). 45 Section 107(4), Land Act (Act No. 6 of 2012). See amendment in Section 77(b), Land Laws (Amendment) Act (Act No. 28 of 2016). 46 Section 14, National Land Commission Act (Act No. 5 of 2012). 47 Section 14, National Land Commission Act (Act No. 5 of 2012). 43 44

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& Tropical Treasure Limited Ex-Parte Krystalline Salt Limited,48 the High Court dealt with a matter where the Commission had issued a notice in a newspaper for the review of certain titles. The complainant alleged that the notice was not proper as it did not have the required details. The Court quashed the notice on the finding that the notice was not sufficient. The Court observed that: In summary, an accused person is entitled to know the allegations, the evidence in support of the allegations and ought to be given an opportunity to rebut the allegations before an impartial tribunal…The notice in the newspapers did not have the name of the complainant and neither did it disclose the complaint against the Applicant’s titles. In order for the Applicant to prepare its defence it ought to have been served with the particulars of the allegations by the Interested Party and informed of the manner in which it allegedly obtained grants to public land in an illegal or improper manner. In a matter that eventually led to the revocation of the Applicant’s title, a notice in the newspapers without any useful information was not sufficient…Failure to serve the Applicant with notice and allegations renders the entire process improper and unlawful.49

To the Court, the newspaper advertisement could not be considered notice in accordance with the provisions of the Act but merely information to the public about the intended review. Relatedly, in managing public land, the Commission is required to look into historical injustices and help to redress them, and to recommend to Parliament appropriate legislation to provide for the adjudication of claims arising out of historical land injustices.50 This is a daunting task in terms of finding appropriate remedies, especially where land ownership has changed over the years making the identification of beneficiaries and perpetrators difficult. However, the Land Laws Amendment Act 2016 provides some remedies which the Commission may recommend including: restitution; compensation, if it is impossible to restore the land; resettlement on an alternative land; rehabilitation through provision of social infrastructure; affirmative action programmes for marginalized groups and communities; creation of wayleaves and easements; order for revocation and reallocation of the land; order for revocation of an official declaration in respect of any public land and reallocation; sale and sharing of the proceeds; refund to bona fide, third party purchasers after valuation; or declaratory and preservation orders including

[2015] eKLR. Republic v National Land Commission & Tropical Treasure Limited Ex-Parte Krystalline Salt Limited [2015] eKLR. 50 Section 15, National Land Commission Act (Act No. 5 of 2012). To date, this legislation has not been enacted as it is still undergoing stakeholder review. 48 49

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injunctions.51 Moreover, how far back the Commission has to go in investigating the historical injustices is contested. Should redress start at the point Kenya became a protectorate in 1895, a colony in 1895 or in 1963 when Kenya gained independence? Or should it be contextual and specific seeing that historical injustices have occurred throughout the history of Kenya and continue to happen even today in different parts of the country? Due to this challenge the law stipulates that a claim alleging a historical injustice is permissible if it was occasioned by: colonial occupation; independence struggle; pre-independence treaty or agreement between a community and the government; development-induced displacement for which no adequate compensation or other form of remedy was provided, including conversion of non-public land into public land; inequitable land adjudication process or resettlement scheme; politically motivated or conflict based eviction; corruption or other form of illegality; natural disaster; or other cause approved by the Commission.52 Settlement schemes are to be established by the National Government to provide access to land for shelter and livelihood.53 These schemes are to be established to take care of the land needs of groups such as squatters and displaced persons.54 The Commission is to assist the county and national governments in the administration of these settlements but the primary responsibility for the settlement schemes has been left to the national government.55 To facilitate the establishment of these Schemes, the Land Act provides for the establishment of the Land Settlement Fund to be administered by a board of Trustees known as the Land Settlement Fund Board of Trustees.56 The Fund is to facilitate acquisition of land as provided for in Section 107 of the Act. Before the Commission establishes settlement schemes, Section 38(9), Land Laws (Amendment) Act (Act No. 28 of 2016). Section 38(4), Land Laws (Amendment) Act (Act No. 28 of 2016). 53 Section 134(1), Land Act (Act No. 6 of 2012). See amendment in Section 89(a), Land Laws (Amendment) Act (Act No. 28 of 2016). 54 Section 134(2), Land Act (Act No. 6 of 2012). 55 Section 134(3), Land Act (Act No. 6 of 2012). See amendment in Section 89(b), Land Laws (Amendment) Act (Act No. 28 of 2016). 56 Section 135(1), Land Act (Act No. 6 of 2012). See amendment in Section 90, Land Laws (Amendment) Act (Act No. 28 of 2016). Under Section 135(2), Land Act (Act No. 6 of 2012) monies allocated for the fund are to be derived from a) any monies appropriated by Parliament for the purposes of the Fund; b) any funds provided by bilateral or multilateral donors, for the purpose of the Fund; c) gifts, grants, donations or endowments as may be given to the Board of the Land Settlement Fund Trustees for the purpose of the Fund; d) monies that may be borrowed by the Land Settlement Fund Trustees for the purposes of the Fund; e) the rates, charges, dues, or fees levied by the Land Settlement Fund Trustees under this Act; f) all monies derived from the payment made by beneficiaries of settlement schemes; and g) such sums as may be payable to the Land Settlement Fund Trustees pursuant to this Act or any other written law. 51 52

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certain requirements have to be met. It must firstly be established that the acquisition is being done for a public purpose or in the interest of the public.57 Where there is any plant or machinery attached to the land, a person interested in the plant or machinery may serve on the Commission a notice in writing that such person desires to sever and remove the plant or machinery.58 The sub-county selection committee, appointed by the Cabinet Secretary, has been tasked with identification of beneficiaries of land within a settlement scheme.59 Before the Commission allocates land for the establishment of settlement schemes, it is required that the land be surveyed and planned and thereafter allocated in accordance with the national values and principles of governance provided for in Article 10 of the Constitution, the principles of land policy in Article 60 (1) and any other requirements of natural justice.60 These provisions are meant to deal with the problems that have hampered settlement schemes in Kenya such as corruption in allocation of land, lack of transparency in identifying beneficiaries and political interference in the process. The beneficiaries of land settlement schemes established under the Act are required to pay a sum of money as determined from time to time by the body of trustees responsible for settlement matters.61 Any land acquired under a settlement scheme is not transferable except through a process of succession.62 The Constitution requires the Commission to assess tax on land and premiums on immovable property.63 Taxation of land is meant to achieve efficiency in land administration and optimal land use. Fiscal aspects of land management had been proposed by the National Land Policy. According to the Policy a clear fiscal framework for land management can: generate public revenue, provide a stable fund for the acquisition of land for banking, service land, facilitate efficient utilization of land, provide incentives for appropriate land uses and discourage speculation.64 To achieve this objective, the government is to establish an efficient and effective land taxation regime and improve the capacity of public institutions to assess and collect taxes.65 It may also make regulations under the Act which are to be approved by 59 60 61 62 63 64 65 57 58

Section 110 (1), Land Act (Act No. 6 of 2012). Section 110 (3), Land Act (Act No. 6 of 2012). Section 134 (4), Land Act (Act No. 6 of 2012). Section 134(6), Land Act (Act No. 6 of 2012). Section 134(8), Land Act (Act No. 6 of 2012). Section 134(7), Land Act (Act No. 6 of 2012). Article 67(2)(g), Constitution of Kenya (2010). Republic of Kenya, Sessional paper no. 3 of 2009 on national land policy, para 166. Republic of Kenya, Sessional paper no. 3 of 2009 on national land policy, para 168.

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Parliament.66 Moreover, the Constitution mandates commissions established under it, including the National Land Commission, to report annually on their activities, recommendations and challenges to the President and Parliament.67 Such Commissions may, at any time, be required to report on a particular issue. The reports are to be published and publicized.68 To carry out its functions, the Commission is bestowed with all the powers necessary for the execution of its functions under the Constitution, the National Land Commission Act and any other written law. The Constitution further outlines certain general functions and powers of Commissions established under it. The general powers vested in commissions under the Constitution are to: conduct investigations on their own initiative or pursuant to a complaint by a member of the public;69 undertake conciliation, mediation and negotiation;70 and recruit their own staff.71 The additional powers of the Commission under section 6(2) of the National Land Commission Act are to: (a) gather by means it considers appropriate any relevant information including requisition of reports, records, documents or any information from any source, including any State organ , and to compel the production of such information where it considers necessary; (b) hold inquiries for the purposes of performing its functions under this Act; and (c)

take any measures it considers necessary to ensure compliance with the principles of land policy set out in Article 60 (1) of the Constitution.

In exercising its powers and discharging its functions, the Commission can inform itself in such manner as it may consider necessary, receive written or oral statements, and it is not bound by the strict rules of evidence.72 (b) County Land Management Boards Although the headquarters of the National Land Commission are in Nairobi, it is required to ensure reasonable access to its services in all parts of the country73

68 69 70 71 72 73 66 67

Section 36, National Land Commission Act (Act No. 5 of 2012). Article 254, Constitution of Kenya (2010). Article 254, Constitution of Kenya (2010). Article 252(1)(a), Constitution of Kenya (2010). Article 252(1)(b), Constitution of Kenya (2010). Article 252(1)(c), Constitution of Kenya (2010). Section 6(3), National Land Commission Act (Act No. 5 of 2012). Article 6(3), Constitution of Kenya (2010).

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and to establish committees and county offices for this purpose74 in consultation and cooperation with the national and county governments.75 Section 18 of the National Land Commission Act had provisions for the establishment of County Land Management Boards, which was an attempt at devolving the functions of the Commission to the counties. However, this section has been repealed by the Land Laws Amendment Act.76 (c) Environment and Land Court Disputes are inevitable in any robust property system. In customary land systems, disputes are perceived as forming a part of the continuous process of constitution and reconstitution of social and cultural relations while in a formal land system, they play the role of clarifying and vindicating land rights between the holders of such rights and other potential claimants.77 It is, therefore, necessary to have a comprehensive and more expeditious land dispute resolution mechanism so as not to damage and disrupt the social and economic relations derived from land.78 Kenya has not had an effective land dispute resolution framework. Over time, Kenyans have recorded their dissatisfaction with the existing land dispute resolution system. The Njonjo Land Commission recounts this by stating that, The public has lost faith and confidence in the existing land dispute settlement mechanisms and institutions, because they are characterized by delays, incompetence, corruption, nepotism, political interference and overlap of roles and functions, leading to conflict, confusion and unnecessary bureaucracy especially when there is a low participation of the local people in land disputes resolution mechanisms.79

Consequently, the Njonjo Commission proposed the designing of an efficient, cost-effective and socially reconstructive dispute resolution mechanism devoid of delays, incompetence, corruption, nepotism and political interference.80 Likewise, the National Land Policy, 2009, laid emphasis on the need for an effective land dispute resolution mechanism that would facilitate efficient land markets, tenure security and investment stability. It recommended a timely, efficient, fair and affordable Section 16, National Land Commission Act (Act No. 5 of 2012). Section 17, National Land Commission Act (Act No. 5 of 2012). Articles 10 and 232, Constitution of Kenya (2010). 76 See Section 39, Land Laws (Amendment) Act (Act No. 28 of 2016). 77 Republic of Kenya, Report of the Commission of inquiry into the land law system of Kenya, 78. 78 Republic of Kenya, Report of the Commission of inquiry into the land law system of Kenya, 78. 79 Republic of Kenya, Report of the Commission of inquiry into the land law system of Kenya, 78. 80 Republic of Kenya, Report of the Commission of inquiry into the land law system of Kenya, 79. 74 75

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land dispute resolution mechanism. It urged the government to establish a dispute resolution mechanism that is independent, accountable and democratic and that will have appropriate and inclusive institutions with clear operational procedures and record keeping for decision making. To facilitate a speedy and cost-effective access to justice, the Policy required government to encourage and facilitate the use of alternative dispute resolution mechanisms, for example, negotiation, mediation and arbitration.81 Most of these recommendations have been reflected in the Constitution of Kenya, 2010. Article 162(2)(b) mandates Parliament to establish a superior court with the status of the High Court for the purpose of hearing and determining disputes relating to the environment and the use and occupation of and title to land. Parliament is further required by sub-Article 3 to determine the jurisdiction and functions of this court. In 2011, Parliament enacted the Environment and Land Court Act, 201182 to give effect to Article 162(2) of the Constitution. Section 4 of the Act establishes the Environment and Land Court as a superior court of record with the status of the High Court and vests it with jurisdiction throughout Kenya. The overriding objective of the Act is to ensure the Court is able to facilitate resolution of disputes in a just, expeditious, proportionate and accessible manner.83 The Court has original and appellate jurisdiction in matters relating to the environment and the use and occupation of, and title to, land. It has the power to entertain disputes on matters including environmental planning and protection, land use planning, title, tenure, natural resources, compulsory acquisition and land administration and management.84 It may also hear applications for redress of violation of the right to a clean and healthy environment.85 In exercising jurisdiction, the court is to be guided by the principles of land policy,86 sustainable development87 and judicial authority88 and may adopt alternative dispute resolution mechanisms on its own motion or at the request of the parties.89 In exercising its functions, the court has however been faced with numerous challenges that will be examined below.

83 84 85 86 87 88 89 81 82

Republic of Kenya, Sessional paper no. 3 of 2009 on national land policy, 40. Chapter 12A, Laws of Kenya. Section 3, Environment and Land Court Act (Act No. 19 of 2011). Section 13(2), Environment and Land Court Act (Act No. 19 of 2011). Articles 42, 69 and 70, Constitution of Kenya (2010). Article 60, Constitution of Kenya (2010). Section 18, Environment and Land Court Act (Act No. 19 of 2011). Article 159(2), Constitution of Kenya (2010). Section 20, Environment and Land Court Act (Act No. 19 of 2011).

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(d) The Ministry of Lands and Physical Planning The Ministry of Lands and Physical Planning90 was previously not easily accessible to members of the public. It had become a preserve of a few individuals who had access to the senior officials. It was common for documents to be forged to facilitate land grabbing. Records at the land registry were not safe as they were frequently tampered with by corrupt officials who would collude with individuals to perpetuate illegal land deals. Moreover, personal searches also contributed to tampering of documents by members of the public as fraudsters in collusion with registry officials could easily amend records for illegal purposes. Loopholes in the system were manipulated by a few people to the detriment of the public91 leading to tenure insecurity and other land illegalities. As a consequence, the public lost confidence in the land administration systems.92 Some of these illegal dealings are still taking place across the country as evidenced by the many court cases of land and land grabbing. The current Ministry was constituted pursuant to an Executive Order No. 2 of 201393 which superseded the Presidential Circular No. 1 of February 2008. Under this Order, the functions of the Ministry were defined to include: land policy management; physical planning; land transactions; survey and mapping; land adjudication; settlement matters; rural settlement planning; land reclamation; national spatial data infrastructure; land registration; land and property valuation services; and administration of public land as designated by the Constitution.94 Changes to the Ministry have, however, been made pursuant to Executive Order No. 1 of 2016 which transferred functions on Housing and Urban Development to the Ministry of Transport and Infrastructure.95 The Ministry is made up of three departments: Department of Lands; Department of Physical Planning; and Department of Survey.96

It is noteworthy that the State Department for Housing and Urban Development was transferred to the Ministry of Transport and Infrastructure. See Ministry of Transport, Infrastructure, Housing and Urban Development http://www.transport.go.ke/HUD.html on 14 September 2016. 91 Republic of Kenya, Report of the Commission of inquiry into the land law system of Kenya, 102. 92 Republic of Kenya, Report of the Commission of inquiry into the land law system of Kenya, 103. 93 Office of the President, Executive Order No. 2 of 2013 on organization of the Government of the Republic of Kenya, 2013, 14. 94 Office of the President, Executive Order No. 2 of 2013 on organization of the Government of the Republic of Kenya, 14. 95 Ouma Wanzala, ‘Kiunjuri takes over multi-billion authorities as Uhuru reorganizes State departments’ Daily Nation 24 May 2016 http://www.nation.co.ke/news/Uhuru-reorganises-State-departments/1056-3217618-15bxoi9z/index.html on 14 September 2016. 96 Ministry of Lands & Physical Planning http://www.ardhi.go.ke/ on 14 September 2016. 90

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The Department of Lands is further divided into land registration, administration and valuation.97 Land registration is one of the busiest sections in the ministry and does the following tasks: registration of documents for all land transactions, under the various land registration statutes; issuance of searches; preparation of provisional and replacement titles as provided by law; assessment and stamp of instruments with the requisite stamp duty under the Stamp Duty Act;98 inspection and control of duty franking machines; preparation and processing of various registrable documents; issuance of title deeds, certificates of leases and certificates of title for all categories of land registered under the various land registration statutes; hearing and determining land boundary disputes, hearing of removal of cautions and restrictions under the provisions of the Registered Land Act;99 hearing appeals made to the Chief Land Registrar by persons dissatisfied by registrations decisions of the Land Registrars; approval of documents under the repealed Registered Land Act; processing conversion of titles from one land statute to another; preparation and issuance of certificates of incorporation under the Trustees (Perpetual Succession) Act;100 and giving instructions to the Attorney General on suits filed against the Chief Land Registrar and the Land Registrar in their official capacity. The Department of Physical Planning aims at achieving a balanced regional development over the national geographic space for the benefit and welfare of all.101 There are national and county physical planning offices. According to the 4th Schedule to the Constitution, the Physical Planning Act102 and related statutes, the National Physical Planning Office has Four (4) broad functions namely, policy formulation on land use; capacity building for counties; coordination of the planning function; and research on physical planning matters. The County Physical Planning Offices, on the other hand, are charged with the preparation of county spatial plans; the preparation of spatial plans for undesignated urban areas; coordinating planning within designated urban, cities and municipal areas; the implementation of planning policies, strategies and standards; participating in and supporting national, regional and inter-county plans; the development control and enforcement of compliance; monitoring and evaluation of county spatial development planning; conflict resolution of matters arising from county plan preparation and implementa-

Ministry of Lands & Physical Planning. Chapter 480, Laws of Kenya. 99 Chapter 300, Laws of Kenya (Repealed). 100 Chapter 164, Laws of Kenya. 101 Ministry of Lands & Physical Planning. 102 Physical Planning Act (Chapter 286, Laws of Kenya). 97 98

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tion; and advising the National Land Commission on land reservation, alienation and acquisition for county projects and other physical planning matters. The work of the Department of Survey103 is to establish and maintain a National Geodetic control network that covers the whole country to facilitate other surveys and research; to produce and maintain plans of property boundaries in support of land registration and to ensure guarantee and security of land tenure; to prepare and maintain Registry Index Maps (RIMs) and Preliminary Index Diagrams (PIDs) to support land registration and to ensure security of land tenure; and produce and continuously update national topographic basic maps for the whole country at various scales for development planning and for the production of other maps. The Department of Survey is also involved in surveying, inspecting and maintaining national and international boundaries; preparing and publishing the national atlas of Kenya, as a documentation of National Heritage and promotion of a nation’s identity; establishing and maintaining a land information system; carrying out hydrographic surveys for safe navigation, exploration and exploitation of natural resources of rivers, lakes, seas and oceans; calibrating and maintaining survey equipment in order to ensure correct measurements; quality control and assurance of geographical data produced by other organizations; and establishing and maintaining National Spatial Data Infrastructure (NSDI). It is clearly evident, that some of the functions conferred on the Ministry by the Executive Order are also vested in the National Land Commission by the Constitution, and the National Land Commission Act, thus creating a source of conflict.

12.2 Land administration and delivery functions The Constitution mandates Parliament to undertake the revision, consolidation and rationalization of existing land laws104 and to revise sectoral lands use laws in accordance with the principles of land policy set out in Article 60.105 It further mandates Parliament to enact laws prescribing the minimum and maximum landholding acreages for private land;106 regulating the conversion of land from one category to another;107 regulating the recognition and protection of matrimonial 105 106 107 103 104

Ministry of Lands & Physical Planning. Article 68(a), Constitution of Kenya (2010). Article 68(b), Constitution of Kenya (2010). Article 68(c)(i), Constitution of Kenya (2010). Article 68(c)(ii), Constitution of Kenya (2010).

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property and in particular the matrimonial home during and on the termination of marriage;108 protection, conservation and provision of access to all public land;109 to enable the review of all grants or dispositions of public land to establish their propriety or legality;110 protecting the dependants of deceased persons holding interests in any land including the interests of spouses in actual occupation of land111 and to provide for any other matter necessary to give effect to Chapter Five of the Constitution.112 In discharging this mandate, parliament enacted the Land Registration Act, 2012 to revise, consolidate and rationalize the registration of titles to land and to give effect to the principles and objects of devolved government in land registration. The Act applies to the registration of interests in all public and private land as well as the registration and recording of interests in community land.114 Withal, the Act does not prohibit or otherwise affect the system of registration under any law relating to mining, petroleum, geo-thermal energy or any other rights over land and land-based resources in respect of public land.115 It prevails in the event of conflict with any other written law, practice or procedure.116 113

12.2.1 Administrative functions The administrative function encompasses the procedures and processes carried out in relation to the land transactions, for example, registration of land transactions and the maintenance of records. (a) Registration The Land Registration Act empowers the National Land Commission to establish registration units in consultation with the national and county governments for the purpose of referencing land parcels.117 The units must be established at the

110 111 112 113 114 115 116 117 108 109

Article 68(c)(iii), Constitution of Kenya (2010). Article 68(c)(iv), Constitution of Kenya (2010). Article 68(c)(v), Constitution of Kenya (2010). Article 68(c)(vi), Constitution of Kenya (2010). Article 68(c)(vii), Constitution of Kenya (2010). Act No. 3 of 2012. Section 3, Land Registration Act (Act No. 3 of 2012). Section 4, Land Registration Act (Act No. 3 of 2012). Section 5, Land Registration Act (Act No. 3 of 2012). Section 6(1), Land Registration Act (Act No. 3 of 2012).

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county level to ensure access to land administration and registration services.118 Each registration unit must have a land registry where the following are to be kept: land register; cadastral map; parcel files; plans; an index of proprietors; and a register and a file of powers of attorney. This information is to be made available to any person by the Registrar upon payment of the prescribed fee.119 The Public Service Commission and the Cabinet Secretary are to establish the land registries in line with the objects120 and principles121 of devolution.122 Every registry must have an official seal and every instrument bearing the imprint of such a seal is to be received in evidence and be deemed to have been issued by or pursuant to the Registrar’s direction unless the contrary is proven.123 Each registration unit is also required to have a community land register maintained in line with the Community Land Act.124 The community land register must have a cadastral map, name of community,125 register of members of the community, user of the land, identity of members registered as group representatives, names and identity of group members.126 However, the register does not apply to unregistered community land held in trust by the county on behalf of communities as prescribed in Article 63(3). An instrument purporting to dispose of rights or interests in community land contrary to the provisions of the community land legislation cannot be registered.127 The Registrar is mandated to maintain any document required to be kept under the Act in a manner that is secure, accessible and reliable.128 Documents that are to be kept include publications, electronic files and an integrated land resource register.129

Kariuki Ouma Ng&#x27;etich - Property Law Book - 2016 - PDFCOFFEE.COM (2024)

Kariuki Ouma Ng'etich - Property Law Book - 2016 - PDFCOFFEE.COM (2024)