LAND LAW: THE CONCEPT OF OWNERSHIP AND THE

ACQUISITION RIGHTS OF LAND IN KENYA

.

BY

Boaz Amoro Nyakeri

Bachelor of Laws, (LL.B)
Africa Nazarene University
E-mail: boaznyakeri@rocketmail.com
July, 2012

What is ownership?
Ownership is a term which is chronic and humongous since it touches along the
periphery of many cycles. From time immemorial, it has burgeoned up, thus resulting to
many definitions. This directs us to reference on different scholarly work which has been
underscored on the same subject matter in order to come up with a robust definition
that can be tenable.
Ownership, according to the blacks law dictionary, is the collection of rights
allowing one to use and enjoy property, including the right to convey it to others. It
further continues to point out that ownership implies the right to possess a thing
regardless of any actual or constructive control. In summation of this definition, it is
noted that ownership rights are general, permanent and inheritable1.
Secondly, in his book, Conveyancing Principles and Practices, Ojienda T. O.
opine that ownership can be defined in a duplex sense; that of Roman Law and English
Law respectively2.
In his words, the Roman law treats the idea of ownership as the right to enjoy
and dispose of something in an absolute manner and equates it to dominium3. It analyses
ownership (and possession) as an absolute jural relationship between a person and a
thing. Interference with ownership gives the owner a remedy in damages known as
vindicatio4 or simply damages in trespass.5
He further continues to elaborate that, to the contrary, the English law does not
treat ownership as an absolute concept but as a form of possession or seisin.
Consequently, under English land law, the right to remain in control of land depends on
a better possession or seisin, rather than on any notion of trespass. It does not base its
remedies for trespass on the abstract notion of ownership, rather, possession forms basis
of such remedies. The question of whether a remedy is forthcoming depends on the
better entitlement to retain or obtain possession rather than ownership per se.6
In a rough understanding of this, it is understood that for ownership to occur, one
need to have rights over the property. Thus according to Onalo, ownership is where a
Blacks Law Dictionary, (1999), United States of America. Pg 1131
Ojienda T. O. (2010). Conveyancing Principles and Practice. LawAfrica. Nairobi: Kenya. pg 7
3
This refers to ones complete power to use, to enjoy and to dispose of property at will. In other words,
when one owns land, the law allows the owner to use, abuse and get the benefits arising out of that land
which may otherwise be referred to as deprivation.
4
A legal action by which the plaintiff demands that the defendant retuning the land that belongs to the
plaintiff.
5
Ojienda T. O. (2010). Conveyancing Principles and Practice. LawAfrica. Nairobi: Kenya.pg 7, para 4
6
Ojienda T. O. (2010). Conveyancing Principles and Practice. LawAfrica. Nairobi: Kenya.pg 8, para 2
1

person has various over a property. These rights may include; right of sale, right of
possession, right of usufructus, right to lease, right to charge, right to create easements
and right of keeping out strangers.7

Characteristics of ownership
From the above definitions, it is evident and mitigating that ownership is an
enormous term which embodies several characteristics. In essence, there are the
ingredients for ownership.
It is enumerated by a certain scholar that the concept of ownership is made up from
three elements which are;
a) The right to manage things;
b) The right to enjoy or consume them; and,
c) The right to dispose of them during life or upon death.8
With an illumination on the same, it is put across that these elements of ownership
are treated as severable from each other, that is,
The right to manage a thing may be held by one person, the right to enjoy it by another, and, the
right to dispose of it by a third party.9

Equally, each of these elements of ownership may itself be fragmented in various ways:
The right to manage, enjoy or dispose of a thing may be shared concurrently between several
persons, or it may be split up over time, so that one or more persons has the right at one time,
another at a later time.10

Historical background of ownership

History is very important especially in land ownership because as we shall see, it
all began in the United Kingdom. The reason as to why this is important in the Kenyan
context is because in 1920, Kenya became a colony of the British. According to Okoth

Onalo P L. (2010). Land Law and Conveyancing in Kenya. pg 19, para 1 & 2
Murphy, W. T., Roberts S. & Flessas T. (2004). Understanding property law. 4th Edition. Sweet &
Maxwell: London. pg 52-53. Para 3
9
Ibid, at pg 53, para 2
10
Ibid, at pg 53, para 2
7
8

Ogendo, the natives were rendered tenants at the will of the will of the crown. 11 The
crown was therefore the owner of the land as we shall see here shortly.
The approach presented forth on the historical background is based, firstly on the
doctrine of tenures and secondly, the doctrine of estates.

a) The doctrine of tenures

Pursuant to the Norman invasion of England in 1066, the King who was considered
to own all land created a system of land holding in which the right to hold land was
given to tenants in exchange of permanence of service. The services these tenants offered
were known as tenure. These services included the horsemen who served in the army
and other personal services to the king.
These tenants who received a grant of land immediately from the king (tenants in chief) in turn
granted parts of the land to other tenants(mesne lords), again in return for performance of
services, which in addition to those mentioned , include agricultural services(socage).12

This was repeated procedurally until all land was held by tenants who actually
occupied it. This system of land holding had only free tenures and this created a feudal
pyramid with the king at its apex.13
The theoretical importance of the doctrine of tenures was that there was no transfer
of the ownership of the land itself; ownership remained in the King. 14

b) The doctrine of estates

Holding it down from the doctrine of tenure, it is understood that ownership of the
land remains in the Crown. This therefore provokes a question on if the tenant can be
said to own anything. The tenant owns an abstract entity, known as an estate,
substance of which is the entitlement to exercise what amount to ownership rights over
the land for a particular period of time15.
Thus, while the tenure denotes the terms on which a grant of ownership rights over
land was made, the estate denotes the duration of the ownership rights granted on those
terms.

Okoth-Ogendo. (1991). Tenants of the Crown: Evolution of Agrarian Law and Institutions in Kenya.
Kenya Africa Centre for Technology studies (ACTS). Nairobi: Kenya. Pg 54, para1
12
Nigel Gravells. (2010). Land Law: Text and Materials. 4th Edition. Sweet & Maxwell: London. pg 17 para
1
13
Ibid, at pg 17 para 2
14
Ibid, at pg 17 para 2
15
Ibid, at pg 18. Para 2
11

The current mechanism of freehold and leasehold estates (or ownership interests)
referred to above did not exist when the doctrine of estates was first developed.
Common law recognized one type of estates; those granted to tenants on feudal
pyramid by free tenure and they were all freehold estates.
The modern leasehold estates had its origins outside the feudal pyramid and it was
regarded as an essentially contractual arrangement between the parties.16

Types of ownership
Land can be owned in several ways by different measures as it will be discussed hereafter.

Ownership by a bundle of rights

Ownership can be acquired by the owner having many rights over the land. These
rights include; right of sale, right of possession, right of usufructus, right of lease, right of
charge, right of creating easements and right of keeping out strangers.17
The government may also transfer land to a person for a term of years and with
that, the person may refer to himself or herself as the owner. The lessee may build
premises on it and he will say that he owns the premises.18 A point that should be
stressed here is that the owner does not own land and buildings but what he owns is a
bundle of rights.

State as the owner

Ownership can be vested on the state. This is possible in several ways which
include; land which has been defined by an Act of Parliament, land reversed or
surrendered to the state, land which the person claiming to be the owner cannot
establish the ownership through a legal process, land without an heir19, land with
minerals and mineral oil, forests, game parks and reserves, water catchments, national
parks, government animal sanctuary et cetera, all roads and thoroughfares provided for
by an Act of Parliament, all rivers and lakes defined by an Act of Parliament, territorial
sea, exclusive economic zone and sea bed, continental shelf, land between the high and

Ibid, at pg. 18 para 3

Onalo P L. (2010). Land Law and Conveyancing in Kenya. pg 18, para 1 & 2
18
Ibid, at pg 18, para 3
19
This is what is commonly referred to the doctrine of bona vacantia in a more strict legal terminology
16
17

low water marks, and land not classified as private or community land under the
constitution of Kenya.20
It is provided that, under Government Lands Act the Commissioner of Lands on
behalf of the Republic of Kenya grants leases of town plots for any term not exceeding
99 years and of the agricultural land for 999 years. The grantee becomes owner and
subject to the terms and conditions of the lease he possesses the right of ownership. 21 The
999years can be converted to freehold and the 99 years to 999 years.

Proprietorship
Sometimes refer to the status proprietor of a lease, of mortgage and of an
easement. Similarly, one who has legal title to something is an owner. The relation of an
owner to the thing possessed; possession with the right to transfer possession to others22

Co-ownership
This is whereby the right of ownership on land occurs concurrently.23 In Kenya,
co-ownership exists in duos and this was derived from the English Common Law. They
are joint tenancy and tenancy in common which the author perceives that they existed at
customary law.24
Tenancy in common does not exist in England law but only at equity and this was
after 1925. In Kenya, land under customary law can be held within a tribe, a clan or a
family on joint tenancy or common tenancy.25
Joint-Tenancy
a.) Nature of a joint tenancy
Where co-ownership in the existence of joint tenancy then is regarded that all the coowners are wholly entitled to the whole of the property; say land that is co-owned. In
essence, each joint tenant is regarded as simultaneously owing the whole of the land
concerned and not specific shares of that land.26
The constitution of Kenya, 2010, Article 62(1), (a-m)
Onalo P L. (2010). Land Law and Conveyancing in Kenya. pg 20, para 1
22
<a href="http://www.thefreedictionary.com/proprietorship">proprietorship</a> <retrieved on 23rd
June, 2012>
23
Nicola Jackson, John Stephens & Robert Pearce. (2008). Land Law: Textbook Series. 4th Edition. Sweet &
Maxwell: London. Pg 361, para 1
24
Onalo P L. (2010). Land Law and Conveyancing in Kenya. LawAfrica. Nairobi: Kenya. Pg 20. Para 3
25
Constitution of Kenya 2010, read together with, Onalo P L. (2010). Land Law and Conveyancing in
Kenya. LawAfrica. Nairobi: Kenya. Pg 20.para 4.
26
Nicola Jackson, John Stephens & Robert Pearce. (2008). Land Law: Textbook Series. 4th Edition. Sweet &
20
21

b.) The Four Unities

This can be clearly demonstrated by the case of AG Securities v Vaughan27where it
was held that a joint tenancy will only exist if what are described as the four unities are
present. Unity of possession means that the co-owners must be entitled to possess the
whole of the co-owned land, and that no joint tenant is entitled to exclude others from
possession of any part thereof28.

c.) Survivorship
This is perhaps the most important significance of joint tenancy. Its rationale is that
when one of the joint tenants dies his interest in the land automatically passes to the
remaining joint tenant.29

d.) Severance
Where the property is co-owned by means of a joint tenancy, a tenant can separate
his interest from that of the other joint tenants by means of severance. Severance has the
effect that the interest in the land is transformed from entitlement to the whole of the
land to a notional share of ownership.30

Tenancy in Common

a.) Entitled to shares in the land

A person who enjoys an interest in property as a tenant in common is not regarded
as owning it in its entity; but regarded as enjoying a notional share of the ownership
which is owned by him alone.31

b.) Shares are undivided

Even though separate shares are owned in the land, the land cannot be divided
physically between them in proportion of their shares.32
Maxwell: London p. 362. Also in the decision as held by Lord Browne-Wilkinson in Hammersmith LBC v
Monk [1992] 1. A.C. 478 at 492that, in property law, transfer of land to two or more persons jointly
operates so as to make them, vis--vis the outside world, one single owner.
27
See the case of AG Securities v Vaughan [1990] 1 A.C. 417
28
Nicola Jackson, John Stephens & Robert Pearce. (2008). Land Law: Textbook Series. 4th Edition. Sweet &
Maxwell: London. P. 363. Para 12-004
29
Ibid, at P. 363. Para 12-005, see also Onalo P L. (2010). Land Law and Conveyancing in Kenya.
LawAfrica. Nairobi: Kenya. Pg 20. Para 6 on the doctrine of Jus Accrescendi
30
Ibid, at P. 363. Para 12-006
31
Ibid, at para 12-007

c.) No Survivorship
The principle of jus accrescendi does not apply in tenancy in common. Their
respective shares cannot pass automatically to the rest of the tenants on death but can
instead be effectively disposed of by will or in event of intestacy will pass to the persons
thereon entitled.33
Capacity of Ownership
For one to own land, he must have the capacity to ownership. This is stipulated
under the Law of Contract Act.34 For the case of land, the vendor and purchaser must
both have the capacity to enter into that contract. Devoid of the capacity renders the
contract void under the law. In this vein therefore, there are classes of people who do
not have the capacity to contract.
In his book, Land Law and Conveyancing in Kenya, Onalo argues that the capacity to
ownership exist in three forms; Natural persons which include infants/minors, lunatics,
drunkards and married women; Artificial persons such as corporations, cooperatives and
trade unions; Legal and Owners at equity who include trustees and personal
representatives.35

a.) Infants and/or Minors

These are persons who have not attained the age of eighteen years in Kenya.36 No
transfer can be made to a person legally disqualified to be a transferee.37 Every person
competent to contract and entitled to transferable property not his own, is competent to
transfer such property either wholly or in part and either absolutely or conditionally in
the circumstances, to the extent and in a manner allowed and prescribed by any law for
the time being in force.38 However, a minor can be allowed to contract if it is concerning
necessaries.39

b.) Married Women

Married women are adults but the question which arises is why they cannot have
ownership of land. This was arrived at following the presumption of common law that
Ibid, at para 12-008
Ibid, at p. 365, para 12-009
34
Law of Contract Act, Chapter 23, Laws of Kenya
35
Onalo P L. (2010). Land Law and Conveyancing in Kenya. LawAfrica. Nairobi: Kenya. Pg 23
36
The age of majority Act, 1 of 1974 Laws of Kenya
37
Indian Transfer of Property Act, 1882, Laws of Kenya. Section 6
38
Ibid, section 7
39
This position was arrived at in the case of Nash v Inman [1908] 2 KB1
32
33

husband and wife are one and that one is the husband.40 Law has however evolved with
time thus providing that women should hold property since they are independent and
with the same capacity as men. As I pointed out earlier, this is based on common law
and it is notable that equity came in to assimilate the harshness of common law. I am
therefore of the opinion that this is one area on which equity came to loosen up the
stretches of common law.
Through this, a woman could own property in England by the doctrine of equitable
separate estate41 intervention on behalf of married women.42 This is applicable in Kenya
because the Married Womens Property Act of 1881, and the Law Reform (Married
women and Joint Tortfeasors, Act of 1935, England were embodied by he Law of
Contract Act, Chapter 23 Laws of Kenya.

c.) Lunatics and Drunkards

A person will lack capacity if unable to make a decision for himself in relation to the
matter at the time the contact is made.43 Further, a committee of a lunatic may act for
him and the Register shall satisfy himself as to the authority to so act. 44 However,
contracts which are entered by them during a lucid interval are binding on them.45

d.) Corporations
These are legal persons but their personification is provided by the law. This is mainly
through the Companies Act.46 Generally a corporation is a legal entity, independent of
the identity of respective members.47 Other examples include Co-operative Societies,
Universities, City of Nairobi, Municipality and other local authorities.48 Corporations can
Onalo P L. (2010). Land Law and Conveyancing in Kenya. LawAfrica. Nairobi: Kenya. Pg 26, para2
Whereby Onalo states that, if property was granted to a married woman by words which expressly or
impliedly could be construed to mean that she was to enjoy it for her sole and separate use, equity
removed the property in question from the control of the husband by regarding him as a trustee and
conferred upon his wife the full powers of enjoyment and disposition. P. 26
42
According to Onalo, statutes were enacted to enhance this, that is, Law reform (Married Women and
Joint Tortfeasors) Act of 1935 of England and this was then preceded by Married Womens Property Act
1881. The two provided that in all cases property of married women should be separate property.
43
United Kingdoms Mental capacity Act, 2005
44
Registered Land Act, Section 114(3)
45
See the case of Mathews v Baxter (1873) whereby it was held that in the case of both drugs and those
suffering from temporary periods of mental disorder, the contract ratified during sober or lucid moments
is valid.
46
Chapter 486, Laws of Kenya
47
See the case of Salomon v Salomon Company [1897] A. C. 22, whereby it was held that the defendant
could prove his debenture in the insolvency of the company. The company was held to be a person
different in law from the controlling share holder.
48
Provided for under the Cooperative Societies Act, Chapter 490 Laws of Kenya; the Universities Act; and
Local Government Act, Chapter 265 Laws of Kenya.
40
41

sue and/or can be sued and can acquire land in their own name. They are however
conferred power by a statute and if they act ultra vires, then this results to nullity.

e.) Trusts
A trust is an imperative obligation placed on the trustee by equity whereby the trust
is bound to deal with the property for the benefit of the beneficiaries.49 A classic
example which amplifies this is on minors whose property can be entrusted upon by an
adult. The minor will be the beneficiary and the person entrusted with ownership is the
trustee. By virtue of a trust, the beneficiaries can exploit the full benefits of the trust
property.50
In Kenya, there are two types of trusts, Private51 and Charitable52. When the person
appointed as a trustee retires or dies, a new trustee is appointed for the time being.53 It
should however be noted that, in the Government Lands Act, there is no provision for
registering trust.

Acquisition of Ownership Rights in Kenya

There are several ownership rights in Kenya but at this instance I will just mention
the most prevalent ones. However, I would like to point out a case scenario in order to
enhance a proper understanding of the same.
As an illustration, is the case of Asher v Whitlock54 whereby in 1850, Williamson
took possession of land enclosed some manorial land on which he built a cottage. He
lived there until he died in 1860. By his will he devised the land to his widow as long as
she remained unmarried, with the remainder to his daughter in fee simple. The widow
and the daughter continued to live in the cottage; and in 1861 they were joined by the
defendant, who had married the widow. In 1863 both the widow and the daughter
died; and the defendant continued to live in the cottage. In 1865 the plaintiffs, the heirs
of the daughter, sought to remove the defendant; and they relied on the better right to
possession of Williamson which they had inherited from his daughter. The plaintiff
succeeded.
Onalo P L. (2010). Land Law and Conveyancing in Kenya. LawAfrica. Nairobi: Kenya. Pg 30, para2 & 3
Ibid, at p. 28
51
Private trusts may be express trusts or implied trust varying with the mode of creation. Express one is
created expressly under a will, in writing, by deed or instrument.
52
Charitable trust arises when their purposes are charitable.
53
Onalo P L. (2010). Land Law and Conveyancing in Kenya. LawAfrica. Nairobi: Kenya. Pg 32, para 3
54
Asher v Whitlock (1865) L.R. 1. Q. B. 1 (Court of Exchequer Chamber, Cockburn C. J., Mellor and Lush
JJ.
49

50

10

Ownership rights in Kenya include the following;

By Communal ownership
Community land shall vest in and be held by communities identified on the basis
of ethnicity, culture or similar community of interest. In this regard, a communal land
shall consist of land lawfully registered in the name of group representatives under the
provisions of any law; land lawfully transferred to a specific community by any process
of law; any other land declared to be community land by an Act of Parliament; and any
other land that is lawfully held, managed or used by specific communities as community
forests, grazing areas or shrines; ancestral lands and lands traditionally occupied by
hunter-gatherer communities; or lawfully held as trust land by the county governments,
but not including any public land held in trust by the county government under Article
62 (2).
Further, the constitution provides that any unregistered community land shall be
held in trust by county governments on behalf of the communities for which it is held. 55
This did not just begin with the constitution of Kenya in 2010. It mainly existed in the
early 1890s. An example of communal land was any land which a community
conquered. The land would then be divided into polygamous families because those
were the most prevalent.56

By Conquest
This was mainly characterized by traditions. One author stated that the power to
acquire land in East Africa remained unresolved. He further gave ways in which title were
acquired and this was through conquering, treaties, agreements and purchase.57 It was an
inter-clan warfare and the clan that worn acquired the land. An example is the conquest
which occurred in Kenya between the Luo Nyanza and the Abaluhyia of Western
Kenya.58
Evenly, a clan from which land had been conquered could re-conquer that same
land or the strongest man with a group of more closely related persons in the clan could
move to other places and conquer land.59

Constitution of Kenya, 2010. Article 63, (1-3).

http://www.kenyalaw.org/klr/fileadmin/pdfdownloads/Acts/ConstitutionofKenya2010.pdf <retrieved
on 23rd June, 2012>
56
Onalo P L. (2010). Land Law and Conveyancing in Kenya. LawAfrica. Nairobi: Kenya. Pg 34. Para 2 & 3
57
Okoth-Ogendo. (1991). Tenants of the Crown: Evolution of Agrarian Law and Institutions in Kenya.
Kenya Africa Centre for Technology studies (ACTS). Nairobi: Kenya pg. 9
58
Onalo P L. (2010). Land Law and Conveyancing in Kenya. LawAfrica. Nairobi: Kenya. Pg 34. Para 1
59
Ibid, p. 34
55

11

By Private Ownership
This is what is commonly referred to as private land. This includes the following.
Registered land held by any person under any freehold tenure; land held by any person
under leasehold tenure; and lastly, any other land declared private land under an Act of
Parliament.60

By Traditional Transfer of Land

If one was from a different grandfather but of the same clan, he could acquire a
temporary title of land.61Land could be held by different persons, and group rights in
particular areas of land or common property rights also existed. These different rights in
land could be transferred from one generation to the next.62 The common examples
noted in Kenya include Banyore, Bakhayo and Bamarachi from the Luhyia community.

By Transfer as a Gift
As the title goes, it is a type of ownership that one could acquire for free. It is also
common in the current system in Kenya. This should however be understood with a
close distinction with inherited land. Land transferred as a gift is mainly held and used
without any payment.

By Inheritance
Inheritance is the practice of passing on property (which in our case is land) and
obligations upon the death of an individual. It has long played an important role in
human societies especially in the rights of acquisition.
The rules of inheritance differ between societies and have changed over time. In
law, an heir is a person who is entitled to receive a share of the decedent's property,
subject to the rules of inheritance in the jurisdiction where the decedent died or owned
property at the time of death. When an heir cannot be identified, the land reverts back
to the state.63

By Adverse Possession

Constitution of Kenya, 2010. Article 64, (a, b& c).

http://www.kenyalaw.org/klr/fileadmin/pdfdownloads/Acts/ConstitutionofKenya2010.pdf <retrieved
on 23rd June, 2012>
61
Onalo P L. (2010). Land Law and Conveyancing in Kenya. LawAfrica. Nairobi: Kenya. Pg 35. Para 3
62
http://ww2.unhabitat.org/publication/hs66702e/rr_chp2.pdf <retrieved on 23rd June, 2012>
63
Constitution of Kenya, 2010. Article 62, (1) (e).
http://www.kenyalaw.org/klr/fileadmin/pdfdownloads/Acts/ConstitutionofKenya2010.pdf <retrieved
on 23rd June, 2012>
60

12

In law, adverse possession is the occupation of the land of another person against
his wish and in opposition to his title. Where such possession continues without the
interruption of an eviction for a period of over 12 years, then the squatter becomes
legally entitled to the land by the operation of the doctrine of adverse possession.64 This
therefore in my view is another way of owning land in Kenya.

http://kenyalaw.blogspot.com/2007/09/adverse-possession-land-sellers-beware.html <retrieved on 23rd

June, 2012> Michael Murungi. ADVERSE POSSESSION: LAND SELLERS BEWARE. (This article was
published in the Daily Nation newspaper on 17th Sept. 07, pg 14 column 2) . In connection to this, see
case of Situma v Cherongo Court of Appeal at Nairobi by PK Tunoi, EM Githinji & J.W. OnyangoOtieno JJ A of July 31, 2007.

64

13

BIBLIOGRAPHY
Mulla D. F. (2000). The Transfer of Property Act OF 1882. 9th Edition, ed Solil Paul,
Butterworths. New Delhi: India
Murphy W. T., Roberts S., & Flessas T., (2004). Understanding Property Law. 4th Edition.
Sweet & Maxwell: London
Nicola Jackson, John Stephens & Robert Pearce. (2008). Land Law: Textbook Series. 4th
Edition. Sweet & Maxwell: London
Nigel P. Gravells. (2010). Land Law: Texts and Materials. 4th Edition. Sweet & Maxwell:
London
Ojienda O. Tom. (2010). Conveyancing Principles and Practice. LawAfrica. Nairobi:
Kenya
Okoth-Ogendo. (1991). Tenants of the Crown: Evolution of Agrarian Law and
Institutions in Kenya. Kenya Africa Centre for Technology studies (ACTS). Nairobi: Kenya
Onalo P L. (2010). Land Law and Conveyancing in Kenya. LawAfrica. Nairobi: Kenya

(Relevant websites are underlined for easy reference)

14