LAND LAW

COURSE OUTLINE

1. INTRODUCTION TO LAW
 Definition of law
 Nature of Law
 Sources of Law
 Types of Law

2. OWNERSHIP TO LAND
 Legal definition of land
 Concepts of ownership
 Land Tenure Systems

3. LEGAL CONTROL OVER LAND USE

 Reasons for control of land use
 Customary tenure and land use systems
 Government Control and land settlement schemes

4. ORIGIN AND EVOLUTION OF LAND LAW

 Customary laws and practices
 Major land law enactments since 1890

5. LAND REGISTRATION
 Concepts of land registration
 Importance of land registration
 Registrable interests in land
 Procedures concerning land registration under existing land laws

6. CADASTRAL PROCESSES
 Meaning of Cadastre
 Survey Act and Regulations
 Land Adjudication
 Deeds and Title surveys

7. TRANSACTIONS IN LAND
 Conveyance and Transfer
 Transfer and Succession
 Transfer of unregistered land
 Transfer under Trust Lands Act*
 Legal Instruments of land transactions

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 1. INTRODUCTION TO LAW

a) DEFINITION OF LAW
The system of rules which a particular country or community recognizes in regulating the
actions of its members and which it may be enforced by the imposition of penalties.
b) NATURE OF LAW
1. General jurisprudence.
The conditions of legal validity.
The main insight of legal positivism, that the conditions of legal validity are determined by
social facts, involves two separate claims which have been labelled the social thesis and the
separation thesis. The social thesis asserts that law is a social phenomenon and the conditions
of legal validity consist of social i.e. non-normative facts. The separation thesis is an
important negative implication of the social thesis, maintaining that there is a conceptual
separation between law and morality.
2. The normativity of law.
Throughout human history the law has been known as a coercive institution, enforcing its
practical demands on its subjects by means of threats and violence. This conspicuous feature
of law made it very tempting for some philosophers to assume that the normativity of law
resides in its coercive aspect.
c) SOURCES OF LAW
These sources are classified into primary and secondary sources.
Primary sources of law are:
 The Constitution
 Statutory laws (Acts of Parliament)
Secondary sources of law are:
 By laws (county laws)
 African customary laws
 Common law (precedents or case law)
The body vested with the responsibility of making laws in Kenya is the Parliament which
consists of the National Assembly and the Senate.
The Judiciary is the body with the responsibility of interpreting the law and passing
judgements on matters related to law.
The body vested with the responsibility of enforcing the law is the executive which consists
of the police and prisons.

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a) Primary Sources of Law

i) Constitution

The Constitution refers to the supreme law of the land. A country's Constitution is
a set of fundamental ground rules setting out the powers of the different branches
of government (i.e. executive, legislative and judicial) and how these entities
operate and interrelate. The Constitution may also set out basic principles, such as
fundamental freedoms and rights. It sets out how a nation and its citizens are to be
governed. It is a social contract between the people and those in authority.

The constitution has been given priority over all other laws, both written and
unwritten such that if any law is inconsistent with the constitution then that law
becomes null and void to the extent of that inconsistency.

The Kenyan Constitution was promulgated in August 2010 and has 18 chapters,
264 articles, and 6 schedules. The biggest chapter in the constitution of Kenya is
the bill of rights. Article 20 provides that the Bill of Rights applies to all and binds
all state organs and all persons.

ii) Statutory Law (Acts of Parliament)

Statutory law is also known as legislation. Legislation is the second key source of
law and usually takes priority over sources of law other than the Constitution.
These are laws enacted by Parliament (both Senate and the National Assembly).
They are enacted to give life to the Constitution and establish a legal regime that
is just, fair and reasonable to all.

Acts of Parliament are meant to conform to the letter and spirit of the
Constitution. Therefore, they cannot contradict the Constitution but rather support
its operation and implementation.

Under statutory law, there is primary legislation and secondary legislation.

Primary legislation is the main act of parliament or the substantive law passed by
parliament. Secondary legislation, also referred to as delegated legislation is law
made by an executive authority under powers delegated from by an enactment of
primary legislation, which grants the executive agency power to implement and
administer the requirements of that primary legislation. Primary legislation may
delegate powers to a particular ministry or regulator to prepare secondary
legislation designed to supplement and develop the principles set out in the
primary legislation.

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b) Secondary Sources of Law

i) By-laws (County laws)

ii) African Customary Law

This is applicable only in civil cases where one or more of the parties is subject to
or affected by it, in so far as it is applicable and is not repugnant to justice and
morality or inconsistent with any other law. African Customary law differs from
tribe to tribe.

iii) Common Law (English precedents/case law)

Common law, also known as judge-made law or judicial precedent, is defined as

the body of law derived from decisions of the courts. The law of England was
first applied in Kenya through systematic legislation by the British administration
at the onset of and during colonial rule. At independence, Kenya inherited the
entire colonial legal material by re-enacting and adopting colonial legislation. The
imported English law continues to be applied in Kenya and has become firmly
entrenched in the country’s legal system.

c) TYPES OF LAWS

Laws can either be procedural or substantive.

a) Substantive law
Substantive law defines the rights and obligations of everyone within its
jurisdiction. It defines crimes and punishments, as well as civil rights and
responsibilities. Substantive law is a type of law that handles the legal relationship
between individuals, or between individuals and the state.

Substantive law includes laws like:-

- Private law
- Public law
- Criminal law
- Contract law
- Tax law
- Company law

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b) Procedural law
Procedural law is the part of the law that deals with legal processes such as rules
for presenting information in court, rather than with rights, legal responsibilities,
etc. It prescribes the means of enforcing rights or providing redress of wrongs and
comprises rules about jurisdiction, pleadings and practice, evidence, appeal,
execution of judgments, representation of counsel, costs, and other matters. This
includes customs and traditions followed by the courts of law.
Procedural law differs from substantive law in that it guides the state on how best
to enforce substantive laws.

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 OWNERSHIP TO LAND
CO-OWNERSHIP
Introduction
Co-ownership is where any two or more people each simultaneously own a given property or
land and are thus entitled to an interest, or interests, in that land. There are four types of co-
ownership but for the purposes of this topic we shall look at two, which are: -
1. Joint Tenancies; and
2. Tenancies in Common.

1. JOINT TENANCIES
In this type of co-ownership of land each tenant (or joint tenant) is equally and ‘wholly
entitled on the whole’ to the land or the property. In joint tenancies, no joint tenant is said to
hold a share in the land; instead, each is invested with the whole interest in the land,
regardless of whether their interest is in the freehold or the leasehold. Each joint tenant is
effectively a single composite person meaning that they are deemed in the eyes of outside
world as one single owner.
Joint tenancies have two characteristics that distinguish them from tenancies in common.
First, joint tenancies provide a right of survivorship. Second, joint tenancies always require
the presence of the so-called four unities.

a) Right of Survivorship
This right, also known as ius accrescendi, provides that upon the death of any of the joint
tenants, the entire co-owned estate is said to ‘survive to’ the living joint tenant(s).The rights
of the joint tenant upon death are therefore entirely extinguished upon death. The deceased
cannot have provided for their rights to be passed on to nominated beneficiaries in their will.
This is because, by definition, they have no share in the estate to pass on, because shares do
not exist in a joint tenancy.
In the case of multiple deaths of joint tenants and where it is difficult to ascertain in what
order they died, the law presumes that they died in the order of seniority. This is known as the
“commorientes rule” and the youngest is presumed to have ‘survived’ longest.

b) The Four Unities

A joint tenancy requires the presence of the so-called “fourunities” in order to exist. These
four unities are the unities of possession, interest, title and time.

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 i) Possession
The unity of possession related to the right of each joint tenant to possession of the land.
This is the right of each tenant to the land that applies to each and every part of the land.
Therefore, no joint tenant may take possession of any portion of the land, such as by
partitioning off that portion of land, to the exclusion of the other joint tenants. There
cannot therefore be a trespass by any joint tenant against another, except where one joint
tenant has wrongfully ousted another. According to common law, joint tenants have no
remedy of possession against other joint tenants, no matter how irritating, intolerable, or
unpleasant the other joint tenant is.

ii) Interest
This form of unity derives from the idea that each joint tenant is ‘wholly entitled to the
whole. The interest of each and every joint tenant is exactly the same in terms of extent,
nature, and duration. No joint tenancy therefore can exist between a freeholder and
leaseholder, because the nature (and durations) of their interests differ.

iii) Title
The unity of title provides that each of the joint tenants derives their title to the land from
the same act or document, such as an act of adverse possession, or a document such as a
grant. For a co-owned legal estate, this type of unity also means that when a purchaser is
looking to purchase the title to a portion of co-owned land, the purchaser need only to
purchase one title.

iv) Time
This unity requires that the interests of all joint tenants must have been vested or apply in
all the joint tenants at the same time.

2. TENANCIES IN COMMON
Unlike joint tenancies, in tenancies in common the co-ownership arrangement is such that
each of the co-owners holds a distinct share, or proportions of entitlement to the land. The
law describes tenants in common as holding land in ‘undivided shares’. The word undivided
is said to mean that the co-owned land has not been divided physically.
There are two defining characteristics to tenancies in common, which set tenancies in
common apart from joint tenancies:
i) There is no right of survivorship between tenants in common; and
ii) The only unity which exists between the tenants in common is the unity of
possession.

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 i) No Right of Survivorship
There is no right of survivorship between tenants in common. The size of each tenant in
common’s share is defined, finite and fixed; it is unaffected by the death of any tenant in
common. Upon the death of any tenant in common, their share passes on to the tenant’s
beneficiaries or whomever is named in their will or intestacy as the person to receive the
tenancy in common.
ii) Only unity of possession is required
Tenancies in common do not require that all the four unities be fulfilled like in joint
tenancies. Instead, there is only one requirement: that each of the tenants in common has
a right to possession of the land. If there was no unity of possession, meaning an equal
shared right to possess the land, there would not be co-ownership. Without co-ownership,
the arrangement would amount to separate ownership of physically distinct areas of land
with boundaries between them.

EXTENT OF LAND OWNERSHIP

Airspace
A land owner has rights in the airspace above your property; however, these rights are
limited. There are two types of airspace – the lower and upper stratums.
The lower stratum
This is the airspace immediately above/around the land. Interference with this air space
would affect the landowner’s reasonable enjoyment of the land and the structures upon it.
You can prevent people from interfering with or intruding on this airspace. For instance
advertising signs, and tower cranes being used for construction work on neighbouring land
but which swing across your airspace.
The upper stratum
This is the airspace which exists above the height which is reasonably acceptable and
necessary for the ordinary use and enjoyment of the land by its owner. This is around 500-
1000 feet above roof space level in the United Kingdom. Landowners have no greater rights
to this airspace than any other member of the public.
Under section 56 of the Civil Aviation Act in Kenya, Cabinet Secretary may prohibit the
erection within a declared area of any building or structure above a height specified in the
orderwhere he considers it to be necessary in the interests of the safety of air navigation.
Under section 57 of the Civil Aviation Act, the Director General may order a land owner to
remove or reduce in height any obstruction that may affect civil aviation safety or efficiency
of air navigation. The DG may order a land owner to install a warning by lighting or
otherwise warning aircraft of any building, structure, tree or natural growth in the vicinity of
an airport or aerodrome.

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Legal definition of land
English Law of Property Act 1925 defines land as the actual land (i.e. soil, ground and earth)
plus any buildings on the land, fixtures attached to the land, mines, minerals and some
airspace. Specifically, it provides that:
“Land” includes land of any tenure, and mines and minerals, whether or not
held apart from the surface, buildings or parts of buildings (whether the
division is horizontal, vertical or made in any other way) and other corporeal
hereditaments; also a manor, an advowson, and a rent and other incorporeal
hereditaments, and an easement, right, privilege, or benefit in, over, or
derived from land; . . . and “mines and minerals” include any strata or seam
of minerals or substances in or under any land, and powers of working and
getting the same. . .; and “manor” includes a lordship, and reputed manor or
lordship; and “hereditament” means any real property which on an intestacy
occurring before the commencement of this Act might have devolved upon
an heir;
In Kenya, the Constitution under article 260 defines land to include:
(a) the surface of the earth and the subsurface rock;

(b) any body of water on or under the surface;

(c) marine waters in the territorial sea and exclusive economic zone;

(d) natural resources completely contained on or under the surface; and

(e) the air space above the surface;

Land as Real Property

“Real property” is commonly used to refer to immoveable property. English law separates
property into two i.e. real property and personal property. Real property is property which is
the subject of a real action. This is arises from what is known as a right in rem. This is where
you can get the property itself back in the event of an action against a rights holder.
On the other hand personal property is property which is subject of a person action arising
from a right in personal. In this case you have a right to recover the property but also a
defendant has the option of paying you the money’s worth, in lieu of giving the property
back.
Land as fixtures
A fixture, as a legal concept, means any physical property that is permanently attached
(fixed) to real property (usually land). A classic example of a fixture is a building, which is
considered part of the land itself and not a separate piece of property.

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Overriding Interests
Overriding interest is an English land law concept. The general rule in registered
conveyancing is that all interests and rights over a piece of land have to be written on the
register entry for that land. Overriding interests are the exception to this general rule.
Overriding interests need not be registered.
Madan J.A defined overriding interests in Mwangi Muguthu .v. Maina Muguthu [HCC 337
OF 1968]as right which though not registered are binding on the proprietor of land and as
thus they don’t have to be registered.
Section 28 of the Land Registration Act 2012 provides that:
“Unless the contrary is expressed in the register, all registered land shall be
subject to the following overriding interests as may for the time being subsist
and affect the same, without their being noted on the register:-
i) trusts including customary trusts;
ii) rights of way, rights of water and profits subsisting at the time of first
registration under this Act;
iii) natural rights of light, air, water and support;
iv) rights of compulsory acquisition, resumption, entry, search and user
conferred by any other written law;
v) charges for unpaid rates and other funds which, without reference to
registration under this Act, are expressly declared by any written law
to be a charge upon land;
vi) rights acquired or in process of being acquired by virtue of any
written law relating to the limitation of actions or by prescription;
vii) electric supply lines, telephone and telegraph lines or poles, pipelines,
aqueducts, canals, weirs and dams erected, constructed or laid in
pursuance or by virtue of any power conferred by any written law;
and
viii) any other rights provided under any written law,

LAND TENURE SYSTEMS

What is land tenure?
The term land tenure is derived from the Latin word tenere which means “to hold.” Tenure
defines the social relations between people in respect of the object of the tenure, in this case
land. Tenure also defines the methods by which individuals or groups acquire, hold, transfer
or transmit property rights in land.
Land tenure means the structures and processes of delivering access and rights in land. More
particularly, land tenure system can be defined as the legal, contractual or customary
arrangements whereby individuals or organisations gain access to economic or social
opportunities through land.

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Types of Land Tenure Systems in Kenya.
There are four types of land tenure systems in Kenya as provided for under section 5 of the
Land Act (No 6 of 2012). These are:
a) Freehold tenure;
b) Leasehold tenure;
c) Minor/partial interest as may be defined by law; and
d) Customary land rights, where consistent with the Constitution.

a) Freehold Tenure
The Land Act (No 6 of 2012) defined freehold as “the unlimited right to use and dispose of
land in perpetuity subject to the rights of others and the regulatory powers of the national
government, county government and other relevant state organs”.
This tenure confers the greatest interest in land called absolute right of ownership or
possession of land for an indefinite period of time, or in perpetuity. This means descendants
can succeed the owner for as long as the family lineage exists.
A freehold title deed generally has no restrictions as to the use or occupation. However, there
are conditional freeholds, which restrict the use of the land, for instance, for agricultural
purposes or ranching only. A freehold interest is also known as fee sample or absolute
proprietorship.
Some restrictions on freehold tenure
Freehold land cannot be held by a non-citizen as provided for under Article 65 of the
Constitution.

b) Leasehold Tenure
Leasehold is an interest in land for a definite term of years and may be granted by afreeholder
usually subject to the payment of a fee or rent and is subject also to certainconditions which
must be observed. e.g. relating to developments and usage.
Leases are also granted by the government for government land, the local authorities for trust
land and by individuals or organisations owning freehold land. The maximum term of
government leases granted in Kenya is 99 years. A non-citizen may hold land on the basis of
a leasehold tenure for a period not exceeding 99 years as provided for under Article 65 of the
Constitution.
All leases for more than 99 years have automatically been converted to 99 year leases under
Article 65 (2) of the Constitution.

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c) Minor/partial interests
These include interests over land such as easements, wayleaves or temporary occupation
licenses.
Easement means a non-possessory interest in another’s land that allows the holder to use the
land to a particular extent, to require the proprietor to undertake an act relating to the land, or
to restrict the proprietor’s use to a particular extent.
An easement is a right that someone holds over land owned by somebody else. Easements are
attached to the land and are normally created by deed. They may also be registered on the
title as held by the Land Registry. They are often considered to last in perpetuity but can be
extinguished and some may also be time limited. Examples of easements include the right of
access and the right for services to pass beneath neighbouring property.
Wayleave is a right of way over the land of another. A wayleave is an agreement between a
land owner or occupier and a third party, permitting that third party to do something for
example to access the land to carry out works in return for compensation. Typically, they
could be used to allow utility companies to install cables or pipework under, on or over the
land, with the right of access for maintenance and repair. The compensatory payment can
take the form of a lump sum but is usually an annual payment.
Licence means a permission given by the Commission in respect of public land or proprietor
in respect of private or community land or a lease which allows the licensee to do some act in
relation to the land or the land comprised in the lease which would otherwise be a trespass,
but does not include an easement or a profit.
Simply put, a license is a permission given to a person who is not a legal owner of a property
to occupy the property for a specific purpose and for a defined period of time. Licenses are
usually for a short-term occupation and do not create or grant any legal right in the land.
d) Customary Tenure
The Land Act No (6 of 2012) defines customary land as private land on which one or more
members of the family have customary rights of ownership.
Further, the Act defines customary land rights as rights conferred by or derived from Kenyan
customary law whether formally recognized by legislation or not.
Therefore, customary land tenure refers to the written or unwritten land ownership practices
by certain communities under customary law.
Kenya is a diverse country in terms of its ethnic composition and therefore has multiple
customary tenure systems, which vary mainly due to different agricultural practices, climatic
conditions and cultural practices. However most customary tenure systems exhibit a number
of similar characteristics as follows:

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1. First, individuals or groups by virtue of their membership in some social unit of
production or political community have guaranteed rights of access to land and other
natural resources. Individuals or families thus claim property rights by virtue of their
affiliation to the group.
2. Secondly, rights of control are rested in the political authority of the unit or community.
This control is derived from sovereignty over the area in which the relevant resources are
located. Control is for the purpose of guaranteeing access to the resources and for
redistribution. Its administrative component entails the power to allocate land and other
resources within the group, regulate their use and defend them against outsiders. The
Community Land Act (No 27 of 2016) has elaborate provisions on the administration and
management of Community Land. See section 15 of the Act.
3. Thirdly, rights analogous to private property accrue to individuals out of their investment
of labour in harnessing, utilizing and maintaining the resource.
4. Lastly, resources that do not require extensive investment of labour or which by their
nature had to be shared, for example, common pasturage are controlled and managed by
the relevant political authority. Every individual member of the political community has
guaranteed equal rights of access thereto.

CLASSIFICATION OF LAND IN KENYA

Article 61 (1) provides that all land in Kenya belongs to the people of Kenya collectively as a
nation, as communities and as individuals. Further sub article (2) classifies land in Kenya as
either pubic, community or private.
1. Public land
Article 62 provides that Public land is—
a) land which at the effective date was unalienated government land asdefined by an
Act of Parliament in force at the effective date;
b) land lawfully held, used or occupied by any State organ, except anysuch land that is
occupied by the State organ as lessee under a privatelease;
c) land transferred to the State by way of sale, reversion or surrender;
d) land in respect of which no individual or community ownership can beestablished by
any legal process;
e) land in respect of which no heir can be identified by any legal process;
f) all minerals and mineral oils as defined by law;
g) government forests other than forests to which Article 63(2)(d)(i)applies,
government game reserves, water catchment areas, nationalparks, government
animal sanctuaries, and specially protected areas;
h) all roads and thoroughfares provided for by an Act of Parliament;
i) all rivers, lakes and other water bodies as defined by an Act ofParliament;
j) the territorial sea, the exclusive economic zone and the sea bed;
k) the continental shelf;
l) all land between the high and low water marks;
m) any land not classified as private or community land under thisConstitution; and
n) any other land declared to be public land by an Act of Parliament.

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Article 62 (2) and (3) provides for conditions under which public land shall be by the county
governments in trust for the county residents and national government in trust for the people
of Kenya.
2. Community Land
Community land shall vest in and be held by communities identified on the basis of ethnicity,
culture or similar community of interest.
Article 63 (1) lists land which forms part of community land as:
a) land lawfully registered in the name of group representatives under the provisions of
any law;
b) land lawfully transferred to a specific community by any process of law;
c) any other land declared to be community land by an Act of Parliament; and
d) land that is:-
i) lawfully held, managed or used by specific communities as community forests,
grazing areas or shrines;
ii) ancestral lands and lands traditionally occupied by hunter gatherer communities;
or
iii) lawfully held as trust land by the county governments.
Any unregistered community land shall be held in trust by county governments on behalf of
the communities for which it is held.
Parliament has enacted the Community Land Act to give effect to the provisions of Article 63
of the Constitution and to provide for means of administering community land.
3. Private Land
Under Article 64, private land consists of:-
a) registered land held by any person under any freehold tenure;
b) land held by any person under leasehold tenure; and
c) any other land declared private land under an Act of Parliament.

LEGAL CONTROL OVER LAND USE

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Introduction
Land use planning refers to the process by which a society, through its institutions, decides
where, within its territory, different socioeconomic activities such as agriculture, housing,
industry, recreation, and commerce should take place.This includes protecting well-defined
areas from development due to environmental, cultural, historical, or similar reasons, and
establishing provisions that control the nature of development activities.
These controls determine features such as plot areas, their land consumption or surface ratio,
their intensity or floor-area ratio, their density or units of that activity (or people) per hectare,
the technical standards of the infrastructure and buildings that will serve them, and related
parking allowances.
The Constitution of Kenya mandates the government to regulate the use of land. 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.”
The control of land use in Kenya is undertaken by various bodies. These include:-
1. The National Land Commission; - which monitors and has oversight over land use
planning in the country.
2. The National Government; - which formulates general principles of land planning and
coordinates planning by counties.
3. The County Governments; - which oversees plan preparation, approval,
implementation and review at the county level.
The Constitution provides for a land policy and its principles. Article 60 (1) provides that:
“Land in Kenya shall be held, used and managed in a manner that is
equitable, efficient, productive and sustainable and in accordance with the
following principles-
a) Equitable access to land;
b) Security of land rights;
c) Sustainable and productive management of land resources;
d) Transparent and cost effective administration of land;
e) Sound conservation and protection of ecologically sensitive areas;
f) Elimination of gender discrimination in law, customs and practices related
to land and property in land;
g) Encouragement of communities to settle land disputes through recognised
local community initiatives consistent with this Constitution.
The Constitution provides that the above principles shall be implemented through a national
land policy developed and reviewed regularly by the national government and through
legislation.

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What is Land Use Control
Land-use controls consists of government ordinances, codes, and permit requirements that
restrict the private use of land and natural resources, to conform to public policies. There are
several types of land-use regulations, including subdivision regulations, zoning, building
codes, housing codes, historic preservation laws, and tree cutting laws.

Legal Justification for Control

Article 66 (1) of the Kenyan Constitution provides the justification for control. It 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.”
Reasons for Land Use Control
A community is made up of individuals with different needs, interests and lifestyles. Some
needs, however, are common to us all, such as sanitation, fresh air, clean water, and open
space for recreation. The way a city or town or country in general develops can have a direct
impact on these needs and therefore the quality of life of its citizens.
Town planning, and specifically control of land use, is one tool for ensuring these common
needs are met and for achieving sustainable cities and towns by controlling development so
that:-
 important natural resources are preserved;
 urban settlement is contained to ensure that roads and other infrastructure such as
water, sewerage, power, and telecommunications are provided efficiently;
 the economy is supported by maintaining a hierarchy of business centres;
 community services, facilities and open space are fairly distributed; and
 incompatible land uses are separated.
Control of land use through town planning is necessary because the way individual land
owners wish to develop and make use of their land may not match the needs or aspirations of
the broader community. The planning system in each region manages the use and
development of land in the public interest by ensuring that most development needs
development approval before it can proceed.
If land use were not controlled, we would almost certainly see even more extensive
urbanisation of the rural/urban edge of cities and lack of community infrastructure such as
open space.
The main way of controlling land use in Kenya is through planning schemes that are prepared
and implemented by the national and county governments.
The use of regulation to control land use promotes compliance and certainty that would not
exist if there were no statutory basis for these controls.

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How land use controls achieve ecological sustainability
Land use controls achieve ecological sustainability by identifying the level of development
that can be sustained without critical environmental damage, while meeting economic and
social needs of present and future generations. This linking of environmental, economic and
social values is known as the “triple bottom line”.
1. Land Control to protect the environment
Land control aims to protect the environment through:-
i) controls that restrict development to protect important areas of biodiversity
ii) controls on vegetation removal such as bushland and habitats for native wildlife
iii) controls on how waste and effluent are dealt with or removed so that water
catchments are not polluted; and
iv) controls that allow increased residential densities near public transport nodes such
as railway stations to encourage use of public transport and reduce private vehicle
use.

Land use planning is an essential tool for pollution prevention and control. Land uses are
categories that refer to the different socioeconomic activities occurring in a particular area,
the human behaviour patterns they create, and their effects on the environment.
While these activities take place at the local level, they can also contribute to global
processes, such as climate change. Therefore, by appropriately defining land uses,
establishing where and how they occur, as well as effectively controlling their performance
and interrelation, governments can actively participate in preventing and controlling pollution
and other forms of land and environmental degradation.

2. Land Control to increase economic value

Land control aims to increase economic value through: -
i) Allocation of sufficient land for business and industry in urban areas. This helps
provide economic growth, as well as services and jobs for local residents;
ii) controls that protect scarce natural resources such as good quality agricultural land
and extractive materials from encroaching development;
iii) controls on location of new residential development to particular areas to give the
most efficient return on public funds used for construction of new infrastructure
such as roads, schools, hospitals, gas, water and sewerage, and communications
networks; and
iv) controls that restrict new commercial activities to identified business centres in
locations with good access by both private and public transport to reduce travel
costs and enhance economic viability of businesses.

17
3. Land Control to enhance social values
Land control aims to enhance social value through:-
i) controls that protect health and safety of residents by restricting development in
areas subject to flooding, erosion or other natural disasters such as bushfires;
ii) controls that protect the character of an existing area such as restrictions related to
removal or alteration of heritage buildings;
iii) conditions on new development to enhance community facilities such as meeting
places, local parks and recreation space; and
iv) controls that require a proportion of the development to provide affordable
housing for disadvantaged people.

CONTROL OF DEALINGS IN AGRICULTURAL LAND

The control of dealings in agricultural land is done through the Land Control Act (Cap 302).

History of the Land Control Act

The Land Control Act was enacted in 1967 to regulate the manner in which the landowner or
the interest in land is supposed to deal with his land. It owes its origin to the Land Control
Ordinance of 1944. This Ordinance put an end to the exclusive Europeans dealing in land as
was earlier envisaged by the Crown Lands Ordinance of 1902 and 1915.

The 1944 Land Control Ordinance established a Land Control Board whose consent had to be
obtained before any transaction in land was done. The Board was given power to impose
conditions as to the development of land and failure to comply with these conditions would
lead to one’s forfeiture of his land.

After Second World War, the colonial administrators saw African Reserves as productive
units and wanted to encourage the growing of cash crops. There was need therefore to change
from communal land ownership to individual land tenure. This created the need for a system
to control productivity of land. This formed the basis of land registration to guarantee
individual land tenure and land control to ensure productivity.

Land control was a way to prevent the Africans after registration from sub-dividing, selling
and living on the land without adequately developing it. These were the reasons for the
enactment of the 1959 Land Control (Native Lands) Ordinance. It provided for establishment
of Divisional and Provincial Land Control Boards without whose consent dealings in land
would be void.

At independence, the provisions of the 1944 and 1959 Ordinances were incorporated in the
Kenya (Land Control) Transitional Provisions Regulations 1963. These regulations were to
serve until provisions could be made by law. These rules served from 1963 to 1967 when the
Land Control Act (Cap 302) was enacted.

18
The Land Control Act

The Act was enacted to provide for controlling transactions in agricultural land. The Act in
section 2 defines agricultural land as:-

a) Land that is not within-

i) A municipality or township; or
ii) An area which was, on or at any time after the 1 st July 1952, a township under
the Townships Ordinance (now repealed); or
iii) An area which was, on or at any time after the 1 st July 1952, a trading center
under the Trading Centers Ordinance (now repealed); or
iv) A market.

b) Land in the Nairobi Area or in any municipality, township or urban center that is
declared by the Minister, by notice in the Gazette, to be agricultural land for the
purposes of the Act.
Powers of the Minister under the Land Control Act
The Minister in charge of Lands may apply the Act to any area if he considers it expedient or
fit to do so.

The Minister has powers to divide a land control area into two or more divisions if he
considers it expedient to do so.

He is also given power to establish a land control board for every land control area or where
it is divided into divisions, for each division.

Composition of the Land Control Board

The membership of a land control board comprises of:-

i) the District Commissioner of the district in which the land control area or division is
situated; or a District Officer deputising the District Commissioner who shall be the
chairman;
ii) Two persons nominated by the council having jurisdiction within the area of
jurisdiction of the board;
iii) And not less than three and not more than seven persons resident within the are of
jurisdiction of the board.

The Minister appoints all these members.

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Controlled Transactions

The Act defines controlled transactions as:-

a) The sale, transfer, lease, mortgage, exchange, partition or other disposal of or dealing
with any agricultural land which is situated within a land control area;
b) The division of any such agricultural land into two or more parcels to be held under
separate titles;
c) The issue, sale, transfer, mortgage or any other disposal of or dealing with any share
in a private company or co-operative society which for the time being owns
agricultural land situated within a land control area.

Transactions Exempt from Land Control

Under section 6(3) of the Land Control Act, certain transactions are exempt from control.
These include:-

a) The transmission of land by virtue of the will or intestacy of a deceased person, unless
that transmission would result in the division of the land into two or more parcels to
be held under separate titles; and
b) A transaction to which the Government or the Settlement Fund Trustees or (in respect
of Trust land) a county council is a party to.

Applying for the Land Control Board Consent

The Act provides that any transaction in agricultural land that is conducted without the
consent of the Land Control Board is ‘void for all purposes”. This therefore means that all
parties to a transaction pertaining an agricultural land must apply and obtain the consent of
the land control board before they enter into the transaction.

If this consent is not sought or not obtained, then any money or other valuable consideration
paid in the course of a controlled transaction should be recoverable as a debt by the person
who paid it from the person to whom it was paid.

The application to obtain the board’s consent must be made within six months of the making
of the agreement between the parties concerned. If no application is made or if the Board
does not give its decision within the six months following the application for consent, or if
the Board withholds the consent, then the transaction is void.

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Procedure for obtaining the Land Control Board Consent

The procedure for obtaining the Land Control Board consent can be summarised as follows:-

a) The applications for consent to a divisional land control board is made in a prescribed
form No.1 in triplicate within 6 months of agreement in any agricultural transaction.
b) All applications for partition, excision or subdivision of agricultural land are
accompanied by five copies of the subdivision plan competently prepared showing
such details as; sizes of resultant portions, access roads and any existing permanent
building.
c) The divisional land control board considers the application and it either grants or
refuses consent in a prescribed form that must be signed by or on behalf of the
chairman.

The purpose of obtaining the consent for sub-division of agricultural land is meant to avoid
the fragmentation of agricultural land into non-economical units.

In 2005 the Land Control (Minimum Acreage) Regulations were introduced under the Act
and provided that:-

‘No land control board shall consent to division or subdivision of any

agricultural land into two or more parcels to be held under separate titles
if the size of any of the resultant parcels will be less than one hectare.’

However, the Government revoked the provisions of these regulations in 2006 against
mounting pressure from stakeholders over the negative effects of the regulations.

Factors considered by the Land Control Board in granting consent

In deciding to whether to grant or refuse consent, the board is obliged to adhere to certain
factors mentioned in the Act. The land control board shall:-

i) have regard to the effect which the grant or refusal is likely to have on the
economic development of the land concerned or on the maintenance or
improvement of standards of good husbandry within the land control area;

ii) act on the principle that consent ought to be refused where:-

a) the person to whom the land is to be disposed of;-

1. is unlikely to farm the land well or to develop it adequately; or

2. is unlikely to be able to use the land profitably for the intended purpose
owing to its nature; or already has sufficient agricultural land; or

21
 b) the person to whom the share is to be disposed of:-

1. already has sufficient shares in a private company or co-operativesociety

owning agricultural land;
2. would, by acquiring the share, be likely to bring about thetransfer of the
control of the company or society from one personto another and the
transfer would be likely to lower the standardsof good husbandry on the
land

c) the terms and conditions of the transaction (including the price to be paid)are
unfair or disadvantageous to one of the parties to the transaction; or

d) in the case of the division of land into two or more parcels, the divisionwould
be likely to reduce the productivity of the land.

iii) refuse consent in any case in which the land or share is to be disposed of by way
ofsale, transfer, lease, exchange or partition to a person who is not-

a) a citizen of Kenya;

b) a private company or co-operative society all of whose membersare citizens of

Kenya;

c) group representatives incorporated under the Land (GroupRepresentatives)

Act; or

d) a state corporation within the meaning of the State Corporations Act.

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 ORIGIN AND EVOLUTION OF LAND LAW
Introduction

The history of land law in Kenya dates back to the pre-colonial days. The origin and
foundations of the land law in Kenya can be traced first to the customary land law tenure and
secondly, to the colonial administration in Kenya. These two factors have largely defined the
historical development of property law in Kenya. Consequently, these two factors have
greatly informed and impacted the current regimes on property and proprietary transactions.
Therefore, in order to understand contemporary land law in Kenya, it is important to examine
the historical place of customary land tenure and the origin, nature and concerns of
colonialism in Kenya. Generally, history of land registration can be categorised into three
phases, i.e. pre-colonial, colonial and post-colonial.

a) Pre-colonial Phase

1. Customary Land Tenure

Customary land law tenure system existed prior to the advent of colonialism in Kenya.
Customary land law tenure can be traced back to the traditional societies (communities)where
land was owned on a communal basis by different tribes (groups of people). These tribes
lived in the region presently known as Kenya before the beginning of the colonial rule.

Land ownership under this customary system was controlled by some socially distinct
authority usually a chief, or an elder, or council of elders, or spiritual leader etc. Such
authority solved the problem of allocation by overseeing the access, management, and use of
land. Control was for the purpose only of guaranteeing access to land and the resources found
on it. Decisions about whom to exclude and who not to exclude also rested with this
controlling authority.

There were five (5) distinct features of customary tenure systems which can be summarised
as follows:-

i) Tenure was family based and the head of the family held rights on behalf of other
family members;
ii) Individual and group membership of the community had guaranteed rights of access
to land or other natural resources;
iii) Rights of control were vested in the political authority of the unit or community.
iv) Private property rights accrued to individuals because of the investment of their
labour in exploiting resources; and
v) Resources which did not require extensive investment were shared as common
pasturage and managed by the relevant authority.

The introduction of colonialism saw these customary conceptions about use and ownership of
land begin to change.

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2. Pre-Independence Period

English land laws were introduced in Kenya through the colonization process. In Kenya
colonialism is traceable back to the Berlin Conference of 1885 which set the motion for the
partitioning of Africa. To further their interests in East Africa, the colonial powers needed to
acquire effective control over the region. They needed to acquire title to land and the natural
resources in the region.

Although Kenya was declared as a protectorate in 1895, that was not sufficient to confer legal
jurisdiction to alienate land. The protectorate status did not confer “radical title” to the land in
the protected territory on the protecting power. This meant that the colonial authorities had
limited powers to deal with land within a ‘foreign territory.’

In 1899 a solution to alienate land was found. The Law Officers of the Crown informed the
Foreign Office that the Foreign Jurisdiction Act 1890 gave His Majesty a power of control
and disposition over waste and unoccupied land in protectorates where there was nosettled
form of government and where land had not been appropriated either to the localsovereign or
to individuals.In such cases, His Majesty would declare such lands to be Crownlands or make
grants of them to individuals in fee or for any term. This was attained throughthe
promulgation of the East African Land Regulations of 1897, which were used to alienate
landfrom the natives to allocate to white settlers.

In 1897, the Commissioner for the Protectorate, using the Land Acquisition Act of India
(1894), which was extended to Kenya, appropriated all lands situated within one-mile on
eitherside of the KenyaUganda railway for the construction of the railway. In addition, the
Act wasused to compulsorily acquire land for other ‘public purposes’ such as government
buildings.

The first local land law was the East African (Lands) Order-in-Council, 1901.
ThisOrdinance gave the Commissioner of the Protectorate power to dispose of all
publiclands.The Order-in-Council was later expanded and re-enacted in the form of
theCrown Lands Ordinances of 1902 and 1915.

In 1902, the Crown Lands Ordinance was enacted, and it provided for an expanded concept
of crown lands than the 1901 Ordinance. It gave the protectorate’s administrator enormous
powers with respect to what land they could lawfully dispose of within the protectorate. The
Ordinance met the demands of settlers who wanted secure title, including freeholds or long
leases. The Commissioner could sell freehold estates in land. Natives rights were merely
occupancy rights and where land was no longer occupied, it could be sold or leased as if it
were “waste and unoccupied land” and there was no requirement of seeking the consent of
any tribal chief before disposition.

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Both the 1902 and 1915 Crown Lands Ordinances defined “crown land” to mean and include:

“all public lands within the East African Protectorate which for the time
being are subject to the control of His Majesty’s Protectorate, and all lands
which have been or may hereafter be acquired by His Majesty under the
Land Acquisition Act, 1894, or otherwise howsoever.”

Natives were never compensated for any land taken away through the above means
ofdispossession. The effect of the 1902 and 1915 Ordinances was that the rights of the
indigenous people for any land they had been extinguished by the colonial laws leaving
them as mere tenants at the will of the Crown. The end result of this was that the natives
were restricted to the native reserves.

The specific laws that were introduced during the pre-independence period as follows:-

2.1. The Registration of Documents Ordinance 1901

The Registration of Documents Ordinance came in to effect in 1901. Its purpose was to
create a register of documents to prevent fraudulent claims for compensation by squatters,
mainly at the Coast, who claimed to have been wrongly dispossessed by the Government.
Under this ordinance any document could be registered at the option of the owner. It was a
simple system of registration for isolated transactions without any form of reference or
tracking the registered transaction.

The legislation was purely based on registration of deeds system, thereby effectively
defeating any future claims of ownership by the locals. The legislation was critically
defective in that it described land by reference to trees, valleys, rivers and springs. This law
is still in existence and has since been revised.

2.2. The Crown Lands Ordinance No 21 of 1902

The Ordinance gave the Commissioner of the Protectorate power to sell freeholds in crown
land within the protectorate to any purchaser in lots not exceeding 1,000 acres
(400hectares).Any empty land or any land vacated by a native could be sold or rented to
Europeans, and land had to be developed or else forfeited. The protectorate administration
did not recognize customary tenure systems, and by 1914 nearly 5 million acres (2 million
hectares)of land had been taken away from Kenyan Africans.

2.3. The Land Titles Ordinance (1908)

This ordinance was introduced to deal with land registration at the Coast and to address
shortcomings of the Registration of Documents Ordinance. At the time the ten-mile Coastal
strip was
owned by the Sultan of Zanzibar but subject to the rights of the inhabitants. There
wasuncertainty of individual titles and land rights had to be adjudicated to ascertain
individual titles. Any land transaction by way of investments was not possible due to this
uncertainty. There wasthus a need for the introduction of a registration system.

An office of the Recorder of Titles wasset up and a Land Titles Register. The Ordinance also
established a Land Registration Court. Itrequired any private claimant (those with certificate

25
of ownership issued by the Sultan) toregister their interests within six calendar months.
Those who registered their claims were issuedwith certificate of ownership, certificate of
mortgage or certificateof leasehold depending on theinterest established. Any land that was
not registered within the stipulated period was declared Crown land and the Sultan was paid
compensation for it. That land would then be governed by the Crown Lands Ordinance No
21 of 1902.

It isimportant to note that the Land Titles Ordinance was a procedural law while the
substantive lawwas to be found in the Indian Transfer Property Act (ITPA) and this also
applied to the Government Lands Ordinance.

2.4. The Crown Lands Ordinance (1915)

The 1902 Ordinance was repealed and replaced by the Crown Land Ordinance of 1915. It
declared all land within the protectorate as Crown Land, whether or not such land
wasoccupied by the natives or reserved for native occupation.The effect was that Africans
becametenants of the Crown, with no more than temporary occupation rights to land. The
landreserved for use by the Africans could also at any time be expropriated and alienated to
thesettlers.

The ordinance empowered the Commissioner of the Protectorate to grant land to thesettlers
for leases of up to 999 years. The impact of such legislation was dispossessing the
nativeAfrican owners of their inherent right to their land.The Commissioner could offer
certificates ofoccupancy valid for 99 and 999 years to Europeans wishing to take up land at a
consideration ofpepper-corn.The 1915Ordinance adopted the registration model applied in
the LandTitles Ordinance. It brought an advanced system of registration of deeds and the
provision ofaccurate survey and deed plans.

When the country attained independence, the 1915 Ordinance became the GovernmentLands
Act, Chapter 280 of the Laws of Kenya.The registration under the Government Lands Act
was a deedregistration.This meant that the documents given were for mere proof of
registration and notownership of the piece of land so registered. Proof of title had to be done
afresh. The Government Lands Act was meantto make further and better provision for
regulating the leasing and other disposal of Governmentlands, and for other purposes. The
Act granted the President enormous powers regardingdealings with the Government land,
something that later exposed such land to major acts ofcorruption, with irregular allocation
and titling of the same to private persons. The Government Lands Act remained operational
until the passing of the Land Registration Act No 3 of 2012 although the records under the
Government Lands Act are yet tobe converted to the Land Registration Act No 3 of 2012.

Crown land ordinance amendments in 1944, No 23. These amendments had made it
impossible for any non-European to acquire land in the high levels. In general customary law
was operative in native area.

26
1945_ policy succession papers of 1945.
Purported to be policy settlements of all communities in Kenya. There were to be established
a commissioner of European settlement and European settlement board to help acquire land
further European settlements.
Two types of settlement schemes
1. Assisted owner scheme, whereby one would buy land and could obtain loan from the
government to develop the land.
2. Tenant scheme, whereby government would buy land, livestock, machinery, make
improvements in buildings and lease the land to the tenants.
As from 1940 there were to be as the District commissioner (DC’s) and district officer’s
(Dos) to encourage individual land ownership and leases behind the policy were;
Land would be put in better use economically, gives the incentives and can be explained
in two ways

a). Communal types was inferior.

b). Capitalist argument i.e. evaluation of communal to individual, communal to individual
ownership is still followed in Kenya.
The British encouraged individual ownership in order;
1. Agricultural to be improved (incentive to work)
2. Security towards obtaining loans to develop the land.
3. Encourage economic or sub-economic division of land.
In order to process the individualism of title there would be.
Adjudication
Consolidation
Registration
This created economical viable units
The argument also provided that landless would be working class in the landed land.
Land registration was to punish those in the forest by giving the home guards land.
East African Royal (commission) report of 1954_ reported that there should be restriction of
selling and exchanging of land in order to achieve several aims namely;
Prevent accumulation of land to economically powerful people.
Should restrict in the transfer of land in order to prevent land speculation
Selling and exchange to prevent land fragmentation

27
Restriction of selling and exchange to prevent inter-racial exchange of land.
Low density scheme (1960) _group of people settled i.e. people who had no land at all.
Million acre scheme (1962) _ To satisfy the hunger, since the low density scheme never
satisfactorily gave land to the dispossessed.
In 1963- Accelerated kikuyu settlement especially in the kinagop area. Still the hunger was
not satisfied. This was the land bought from the European settlers with the loan through
IBRD also the crown land (government land)
Z-scheme, under the schemes, there was land reform- replacement of customary land
tenure/communal to individual (European tenure) land ownership and the ideal of transferring
the land through a willing buyer or a willing seller through land buying companies.

LAND REGISTRATION
Concepts of Land Registration
Registration of title to land is said to originate at the advent of commoditization of property
by man. When individuals started to make claims on property it became necessary to
formulate a mechanism to keep property records. A distinction has been made between land
registration and registration of title.
Land Registration vs Registration of Title
Land Registration is “the documentary manifestation of land as a commodity in the world of
commerce. It performs the overall function of providing information regarding the quantum
of rights in land and the transferability of the same in the production and exchange process.”
On the other hand, registration of title is described as, “the maintenance of authoritative
records, kept in a public office, of rights to clearly defined units of land as vested for the time
being in some particular person or body, and of limitations if any to which these rights are
subject.
Land registration therefore seeks to record interests in land to make it easy to transact in land
like any other commodity while registration of title is recording the proprietorship or
ownership of a person to a parcel of land. The difference between the two is that land
registration does not confer ownership of the land registered while registration of title to the
land confers ownership to the person whose name is entered in the register.
Land registration and registration of title were concepts alien to the people of Kenya. Before
the advent of colonialism, land was owned communally by various tribes or communities.
The land was used for various purposes such as construction of homestead, farming, grazing
land and religious place of worship. Often this land was used as a community or by a
particular clan or family as determined by the elders. The community protected their territory
from other communities often through use of force and when defeated they moved to
establish their territory elsewhere.

28
The onset of colonialism saw the introduction of various statutes to govern land
administration and registration in the country. It has been contended that the real reason for
introduction of land registration by colonialists was to alienate people from their customary
land and secure land for the settlers who would engage in economically profitable farming
practices to boost the colony’s income. Since the British considered the customary tenure
arrangements practiced by the majority of Africans to be inconsistent with development and
modernization, they established a tenure system which only accorded recognition to land
rights secured by individual freehold title.
Further, customary tenure involved a complex system of nested and overlapping individual
and group rights derived from kinship relationships that did not lend itself to concepts of
absolute individual ownership and as a result, most customary land was left unregistered and
vulnerable to appropriation and transfer to settlers. The onset of colonialism saw the
introduction of western notions of property ownership. Consequently, this led to the
introduction of various statutes to govern land administration and registration in the country.

The Property Theory

Land is a form of property. Ownership to land is conferred by registration of title. As such a
registration system must offer adequate security against the rights of third parties. According
to this theory property rights have social, legal, political and economic justifications. A law
on land registration ought therefore to be simple and efficient in securing property rights to
citizens. According to the property rights theory, property rights need to be defined and
correctly allocated to generate wealth. Property rights theory demands that the definition and
allocation of proprietary rights has to be done on a scale and at a level sufficient to ensure
that the entity best placed to manage the resources has complete control and eliminates the
possibility of contradictory rules being applied to one resource.
Property is also a legal relationship where the enforcement of property rights offers security
of title to the land owner. This guarantees the right to sell, exclude, possess, right to
appropriate the right to use and dispose of property by will. Registration of a parcel of land
confers on the registered person absolute ownership over the land. This confers on the
registered owner all the legal entitlements to the land and the rights to enforce those rights in
courts.
Title Registration
Under common law title denotes the right of an owner to assert his estate in land against
strangers. To have a title to an estate means to be entitled to exercise or enjoy various rights
or incidents associated with ownership of that estate. Title to freehold or leasehold estate
gives the registered proprietor powers to exercise his possession rights against the whole
world and the power or right to use, exploit or dispossess the land.
Registration of title is defined as “the maintenance of authoritative records, kept in a public
office, of rights to clearly defined units of land as vested for the time being in some particular
person or body, and of limitations if any to which these rights are subject.” The origin of title
registration is traceable to the Torrens system registration scheme introduced in Australia in
1858.

29
Torrens System of Registration.
The Torrens system of registration is based on three principles
1. Mirror Principle
This refers to the "register" or certificate of title, which supposedly reflects accurately and
completely the current facts about a person's title. According to this principle a register of
title is intended to operate as a mirror reflecting accurately and incontrovertibly the totality of
rights and liabilities which at any given time affect the land falling within its coverage. In
other words, a title is free of adverse claims or burdens unless they are mentioned on the title.
In practice, this mirror principle cannot be absolutely reliable, as there are certain public
rights and burdens which do affect a person's title even though they are not reflected in the
title. Public rights and burdens include such rights as overriding interests that may affect a
title.

2. Curtain Principle
This means that the current certificate of title contains all the information about the title.
Therefore, a historical search to verify that the title is good is unnecessary. Here again, this
principle is not always applied and historical or "chain" searches are made in certain
circumstances.
3. Insurance Principle.
This principle provides that the state shall guarantee the accuracy of the registered title, in
that an indemnity payable from public funds if a registered proprietor is deprived of his title
or is prejudiced by a correction of any mistake in the register. This provides compensation for
loss of rights. The principle is that the register must reflect the absolutely correct status of the
land. If, through human error, a flaw appears and anyone suffers a loss, it is made right so far
as money is able to compensate.

Importance of Land Registration

The overall purpose of registration of title is to achieve greater simplicity and certainty of
title to land. Registration should confer on a registered proprietor an indefeasible title to a
specified parcel of land and dispense with any need on the part of persons dealing with him to
investigate further his rights.
The aims of registration can therefore be said to be:-
i) To achieve security of tenure. - Security of tenure gives one a right to be indemnified
from the government. A purchaser of land from a proprietor on the register should have
the commercial confidence in the transaction unbothered by the deficiency in the title
not recorded in the register.

30
ii) To provide conclusiveness of the register. -a register should be conclusive to an extent
that no claim which is inconsistent with a registered title can be enforced against the
owner of the interest.

iii) To reduce litigation over property disputes - Reduction of litigation will be achieved
when the registered title is properly surveyed, and the area and boundaries clearly
indicated.

iv) To provide and efficient loan administration system - the principle of security of title
makes borrowing easy as a lender feels secure in relying on such a title as security of
money secured. This is particularly an important aspect especially as the financial
institutions fund many of the developments in the housing estate.

31
Land registration process.
General Boundary
A general boundary is defined as
“a boundary of which the precise line is undetermined in relation to the
physical features which demarcates it. i.e. it is not settled whether the boundary
runs along the center of a fence, wall, or ditch or along its inner or outer face.
However, it is clear on the ground where the parcel is situated and where the
boundaries are, for they are clearly visible and unmistakable physical features,
though they do not indicate the exact location of the line within the breadth
which such physical features necessary possess.”
This means that the boundary shown on the filed plan to the registered title of a property is a
general boundary and does not determine the exact line of the boundary. The general
boundary on a plan therefore indicates that somewhere nearby is an exact legal boundary at
an unknown distance from and not necessarily parallel with the general boundary.
Unless it is stated in the register that the boundaries of a parcel have been fixed, the cadastral
map and any filedplan shall be deemed to indicate the approximate boundaries and the
approximatesituation only of the parcel.
Land Adjudication
Land adjudication helps resolve disputes and uncertainties relating to property ownership
and demarcation. Land adjudication is defined as the process through which existing rights
in particular parcel of land are finally and authoritatively ascertained. Land adjudication in
Kenya dates back to the colonial period when the process was formulated to transform land
in trust land areas from the customary land tenure to the statutory freehold tenure.
Land adjudication can be classified into two, i.e. sporadic adjudication and systematic
adjudication.
i) Sporadic adjudication.
This is adjudication which is done on demand. The sequence in which parcels are brought on
to the register is piecemeal, haphazard and unpredictable. However sporadic systems can be
used selectively to encourage specific categories of land ownership and is cheaper in the
short term since adjudication costs can be easily passed to the land owners.

32
ii) Systematic Adjudication
This involves the methodical and orderly sequence in which all parcels are brought onto the
register, area by area. This approach in the longer term is less expensive because of
economics of scale, safer because it is given maximum publicity and more certain because
investigations take place on the ground with direct evidence from the potential land owners
of adjoining properties. Systematic registration has the advantage that it will provide more
comprehensive land information within a given time frame. It will also give more people
improved rights more quickly, thus supporting the general development impact of increased
security of ownership and reduced transaction costs.
Land Adjudication Process in Kenya
- The basis for Land Adjudication in Kenya is the Land Adjudication Act chapter 284 of
the Laws of Kenya.
- The process is initiated once the Minister of Lands has given a declaration that a Trust
Land area be adjudicated.
- The minister then appoints an adjudication officer who is then expected to steer the
process.
- The Adjudication Officer appoints demarcation officers, survey officers and recording
officers to help administer the process.
- The Adjudication Officer subdivides the land into adjudication sections and in
consultation with the District Commissioner of the area appoints an adjudication
committee for the section.
- The Provincial Commissioner appoints a panel of officers from which the adjudication
officer can form an arbitration board.
- The adjudication officer with the help of the committee, the board and other officers’
help to formulate the adjudication register, which contains the record of rights and
interests to the land in the adjudication section.
- Anybody having a claim to the land to be adjudicated must be present to show his
boundaries to the demarcation officers.
- Any person who during the adjudication process feels that his rights have not been
taken into consideration is required to lodge a complaint to the adjudication committee
chaired by the Adjudication Officer.
- Any complaint on the decision by the Adjudication Officer can further be made to the
Land Executive Officer who will submit the complaint to the arbitration board.
- Any contention on the completeness or correctness of the adjudication register is
referred to the Minister of Lands.
- The Minister makes the final decision on the appeals, but, with orders from the High
Court, the Minister's decision may be challenged.
- Through the process of land adjudication, the land owners agreed on the positions of
their boundaries and marked them by planting hedges.
- Aerial photography was then obtained once the hedges had grown sufficiently to be air
visible.
- The un-rectified aerial photographs were then enlarged and forwarded to the field
where Junior Survey Assistants identified and marked the boundaries of the
adjudication parcels on the enlarged photographs.

33
- Maps were then produced by making direct tracings of the boundaries as depicted on
the enlarged photographs.
- The boundaries that were not air visible were plotted on the photographs by
estimation.
- Tracings of the boundaries resulted into Preliminary Index Diagrams (PID’s).
- Initially the PID’s were upgraded by a process, known as refly, through which maps
were plotted accurately by photogrammetric restitution and ground survey methods
(Such maps were produced for parts of Central and Eastern Provinces and were mostly
drawn at scales of 1:2,500 and 1:5,000.
- However, the refly exercise was abandoned in 1967 due to shortage of funds and
change of priorities.
- This abandonment has ensured the continued use of PID’s as land registration
documents.
- Land whose ownership has been confirmed though the above process was titled
through the Registered Land Act, Chapter 300 (now repealed). The Land Registration
Act now applies.
Demarcation/Maintenance of Boundaries
Under section 20 of the Land Registration Act, every land owner is required to maintain in
good order the fences, hedges, stones, pillars, beacons, walls and other features that
demarcate the boundaries, pursuant to the requirements of any written law.
The Registrar may in writing, order the demarcation within a specified time of any boundary
mark, and any person who fails to comply with such an order commits an offence and is
liable on conviction to a fine not exceeding two hundred thousand shillings.
The Registrar may in writing, order which of adjoining proprietors shall beresponsible for
the care and maintenance of any feature demarcating a commonboundary, and any
proprietor so ordered to be responsible for the care andmaintenance of the boundary feature
who allows the boundary feature or any partof it to fall into disrepair, be destroyed or
removed commits an offence and is liableon conviction to a fine not exceeding two hundred
thousand shillings.
Corrections/Alternations of Boundary Lines
The office in charge of survey of land may rectifythe line or position of any boundary shown
on the cadastral map based on anapproved subdivision plan, approved combination plan or
any other approvedplan necessitating the alteration of the boundary. (Section 16 of the Land
Registration Act)
Whenever the boundary of a parcel is altered on the cadastral map, theparcel number shall
be cancelled, and the parcel shall be given a new number. (Section 16 Land Registration
Act).
The office or authority responsible for the survey of land may prepare neweditions of the
cadastral map or any part thereof and may omit from the new mapany matter that it
considers obsolete. Any rectification to the cadastral map shallbe notified to the Registrar by
the submission of the rectified cadastral map and allthe approvals that necessitated the
amendments.

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Fixed Boundaries
A fixed boundary is an invisible line defined geometrically through an accurate survey. These
boundary lines are generally more accurate and legal. Fixed boundary lines are obtained by
use of precise equipment and techniques to obtain accurate and reliable mathematical data
from which the numeric cadastre is created. These methods use the traditional optical survey
equipment including theodolites, tacheometers, Electro-optical Distance Measurement
Equipment (EDM), total stations, and also the Global Positioning Systems (GPS).

A fixed boundary is an unchangeable boundary created by operation of law. Section 19 (3) of

the Land Registration Act 2012 (section 22 (3) of the Registered Land Act (Repealed)) a
boundary shall be a fixed boundary where the dimensions and boundaries of a parcel of land
are defined by reference to a plan verified by the office responsible for survey and a note
made in the land register.
Methods of Acquiring/Accessing Ownership to Land in Kenya
1. Allocation of public land
2. Land adjudication process
3. Settlement programmes
4. Group ranches
5. Compulsory acquisition
6. Long term leases exceeding twenty-one (21) years created out of private land
7. Prescription
8. Transmissions
9. Transfers
10. Any other means as may be prescribed by an Act of Parliament.
Allocation of public land
Section 12 of the Land Act allows the Cabinet Secretary at the national level or County
Executive Committee in charge of land at the county level to allocate public land through the
National Land Commission by way of:-
a) public auction to the highest bidder at prevailing market value subject to and not less
than the reserved price;
b) direct allocation to specially targeted group of persons or groups in order to
ameliorate their disadvantaged position;
c) public notice of tenders as it may prescribe
d) public drawing of lots as may be prescribed
e) public request for proposals as may be prescribed
f) public exchanges of equal value as may be prescribed.
The National Land Commission (NLC) has responsibilities of allocating public land on
behalf of the National or County Governments using any of the above methods.

35
Procedure for acquiring title after allocation of Public Land
Before public land is allocated, it must go through a process of heaving off plots from the
public land bank. This involves the following:
Land alienation process
1. Director of Physical Planning prepares a plan creating plots for allocation for various
users.
2. Director of Surveys or private surveyor surveys the land and produces survey plan
and numbering of land parcels
3. Director of Physical Planning in conjunction with the national land commission and
other regulatory agencies prepare development guidelines for the area
4. The National Land Commission (NLC) advertises the plots for allocation or vets
targeted allotters in case of special cases.
5. NLC oversees the allocation of the plots to individuals using a fair and just processes
6. NLC issues letters of allotment to qualified allottees.
7. NLC prepares lease documents and executes lease documents on behalf of the
National or County Government
8. The lease document is forwarded to the district land registrar for registration and
issuance of certificate of lease to the allottee.

Steps to be followed by allottee to obtain title

1. Acceptance of offer
- Write a letter to NLC accepting the offer and the conditions of the allotment
- Make payment of the statutory fees required in the letter of allotment
- Get a receipt for your payment
- Ensure your plot file has been opened by the NLC and note the number.

2. Surveying of the Land

- Contact a registered/licensed surveyor
- Give him/her a copy of the letter of allotment together with the attached map, special
conditions and receipt and instruct him to survey the plot.
- After ground survey the surveyor should show the beacons ofyour plot.
- sign a beacon certificate
- get details about the number and size of your plot from thelicensed surveyor
- obtain authenticated RIM and other survey details
- forward survey information to the NLC for preparation of leasedocuments

3. Preparation of Lease Documents

- Recording and storing survey details in catalogue
- Reconfirming the allocation status of the land
- Production of the lease document
- Checking of the lease document

36
 - Signing of the lease document on behalf of the government byauthorized officer

4. Clearance of Payments
- Assessment and payment of stamp duty (at 4% of the value of land)
- Getting rent and rate clearance certificate

5. Forwarding and Registration of Lease

- Forwarding of the lease document for registration to the landregistrar
- Re-confirmation of ground status by the land administrator
- Booking of the lease documents
- Payment for certificate of lease
- Issuance of certificate of lease together with one copy of thelease document

Registration under the Registration of Documents Act

Registration of documents conferring, or purporting to confer, declare, limit or extinguish any
right, title or interest in immovable property/land maybe registered under the Registration of
Documents Act. Registration of a document in any land transaction under this act guarantees
no title but is mere evidence of the occurrence of that transaction. Some of the documents
that are registered under this act include;-
- Trust Deeds,
- Powers of Attorney
- Building Plans etc.
Registration of Strata Titles under the Sectional Properties Act.
The Sectional Properties Act 1987 provides for the division of buildings into units owned by
individual proprietors and common property to be owned byproprietors of the units as tenants
in common and to provide for the use and management of the units and common property.
Common property here refers to the parts of the property that are shared such as the floors,
roofs, parking areas and the fence.
Registration under this Act is applicable for land that is held as freehold or for leased land
where the lease has an unexpired term of more than 45 years.

REGISTRABLE RIGHTS AND INTERESTS IN LAND

Freehold interest
The Land Act (No 6 of 2012) defined freehold as “the unlimited right to use and dispose of
land in perpetuity subject to the rights of others and the regulatory powers of the national
government, county government and other relevant state organs”.

37
This tenure confers the greatest interest in land called absolute right of ownership or
possession of land for an indefinite period of time, or in perpetuity. This means descendants
can succeed the owner for as long as the family lineage exists.
The freehold estates could either be:- fee simple, fee tail, life estate and estatepurautre vie
- Fee simple & fee tail

In the case of the fee simple and the fee tail, the word “fee” denotes that the estate is
an estate of inheritance, i.e. an estate which, on the death of the tenant is capable of
descending
to his heir. It also means that the estate is one which might continue forever. The
words “simple” and “tail” distinguished the classes of heirs who could inherit.

A fee simple descended to the heirs general, including collaterals. A fee simple was
originally an estate which endured for so long as the original tenant or any of his heirs
(blood relations, and their heirs, and so on) survived. Thus, at first a fee simple would
terminate if the original tenant died without leaving any descendants or collateral
blood relations (e.g. brothers or cousins), even if before his death the land had been
conveyed to another tenant who was still alive.

A fee tail descended to heirs special, i.e. to lineal descendants only.A fee tail estate
(or entailed interest) is an estate which lasts for as long the original grantee or his
lineal descendants survive. It could be limited to male or female descendants. It was
designed to keep the land within the family. Thus if the original tenant died leaving no
relatives except a brother, a fee simple would continue, but a fee tail would come to
an end.

- Life estate

A life estate on the other hand, is not a fee. It is not an estate of inheritance and it
cannot continue for ever. On the death of the tenant an ordinary life estate terminates.

- Estatepurautre vie

Purautre vie is an old French term that means “for another’s life”. This does not
descend to the tenant’s heir, but passes under the special rules of occupancy.

Example
If A is given property for B's life, A is the tenant purautre vie and will hold the
property during the lifetime of B. If A dies before B, the persons entitled under A's
will or on his intestacy will take the interest for the remainder of B's life; if B dies
before A, A's interest thereupon terminates.

Life estates are sometimes called “mere freeholds” or simply “freeholds”, as opposed
to “freeholds of inheritance”.

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 Legal Basis for Freehold Interests in Kenya

The legal basis for freehold interest in land in Kenya is section 5 of the Land Act (No 6 of
2012) which provides for a freehold as one of the forms of land tenure systems in Kenya.
The Act in section 2 defines freehold as:
“the unlimited right to use and dispose of land in perpetuity subject to the rights of
others and the regulatory powers of the national government, county government and
other relevant state organs”

Under the repealed land laws, freehold interest was recognised under sections 27 and 28 of
the Registered Land Act (Cap 300, Laws of Kenya) (now repealed). The title document
was a title deed or land certificate and the concept of 'freehold' was referred to as absolute
proprietorship. The Registration of Titles Act (Cap 281, Laws of Kenya) (now repealed)
also recognised the concept of freehold. The title document was typically a certificate of
title or grant and the proprietor is often stated as holding the estate in fee simple. The
Government Lands Act (Cap 280, Laws of Kenya) (now repealed) also conferred freehold
interests, usually in fee simple, and the title document is generally a conveyance. These
interests could and can descend to heirs and be transferred.

Under section 24 of the Land Registration Act (No 3 of 2012) the effect of registration of a
person as the proprietor of land holding a freehold interest shall vest in that person the
absolute ownership of that land together with all rights and privileges belonging or
appurtenant thereto.

Leasehold interest
Leasehold is an interest in land for a definite term of years and may be granted by afreeholder
usually subject to the payment of a fee or rent and is subject also to certainconditions which
must be observed. e.g. relating to developments and usage.
Leases are also granted by the government for government land, the local authorities for trust
land and by individuals or organisations owning freehold land. The maximum term of
government leases granted in Kenya is 99 years. A non-citizen may hold land on the basis of
a leasehold tenure for a period not exceeding 99 years as provided for under Article 65 of the
Constitution.
All leases for more than 99 years have automatically been converted to 99 year leases under
Article 65 (2) of the Constitution.
On expiry of a leasehold term, the property reverts to the lessor (or government). Proprietors
of leasehold titles should ensure that they adhere to the conditions under which the land is
held and apply for renewal. The process of application for renewal should commence at least
two to three years before the term expires.
Legal basis for leasehold interests in Land in Kenya

39
 The legal basis for freehold interest in land in Kenya is section 5 of the Land Act (No 6 of
2012) which provides for a leasehold as one of the forms of land tenure systems in Kenya.
The Land Act, under Part VI, contains provisions relating to leases generally. Some of
these provisions include:-
Section 56 – Power to lease land
The owner of private land may lease that land or part of it to any person for a definite
period or for the life of the lessor or of the lessee or for a period which though indefinite,
may be terminated by the lessor or the lessee.
Section 57 – Periodic leases
These include leases:-
- Whose term is not specified and no provision for termination the tenancy is provided.
- Whose term is from week to week, month to month, year to year or any other periodic
basis to which the rent is payable in relation to agricultural land. In that case the
periodic lease shall be for six months;
- Where lessee remains in possession of land with the consent of the lessorafter the
term of the lease has expired
- where the owner of land permits the exclusive occupation of the land or any part of it
by any person at a rent but without any agreement in writing.
Section 58 – Short term leases
These are leases:-
- made for a term of two years or less without an option for renewal;
- that is a periodic lease; and
- where the owner of land permits the exclusive occupation of the land or any part of it
by any person at a rent but without any agreement in writing as in section 57 above.
A short term lease may be made orally or in writing.
A short term lease is not a registrable interest in land.
Section 61 – Future leases
A future lease of land may be made for a term to begin on a future date, that date not
being later than twenty one (21) years after which the lease is executed.
A future lease, which is expressed to be for a period of more than five years, shall be of
no effect unless and until it is, registered.

Other interests
- Mortgage/charge
- License

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 - Easements
- Profits a prendre

CADASTRAL PROCESSES
Definition of Cadastre
Cadastre is a word derived from French which means “a database of real property data within
a certain jurisdiction or country.” It refers to a public record of the extent, value and
ownership of land. It is used as a basis for taxation, surveying and mapping.
The International Federation of Surveyors defines a cadastre as
“A cadastre is normally a parcel based and up-to-date land information system containing
a record of interests in land (i.e. rights, restrictions and responsibilities). It usually
includes a geometric description of land parcels linked to other records describing the
nature of the interests, and ownership or control of those interests, and often the value of
the parcel and its improvements. It may be established for fiscal purposes (e.g. valuation
and equitable taxation), legal purposes (conveyancing), to assist in the management of
land and land use (e.g. for planning and other administrative purposes) and enables
sustainable development and environmental protection.”
Definition of Cadastral Survey
Cadastral survey is the defining of property boundaries; both the creating of boundaries and
the defining of boundaries that exist.
A cadastral survey is the term used to describe the gathering and recording of data about land
parcels. Cadastral surveys are concerned with geometrical data, especially the size, shape,
and location of land parcel. The results of a cadastral survey are isolated plans of a parcel or a
subdivision.
Origins of the Cadastral Survey System in Kenya
The origins of the cadastral survey system in Kenya date back to 1903 when a land survey
section was established in the then Public Works Department. The main objective of the land
survey section was to support alienation of land for the European settlement in the White
Highlands. In 1906, the section was elevated to the status of a fully-fledged, autonomous
department (the Survey Department) under the Director of Surveys. Today, roughly a century

41
later, the Department has grown into a major organization with branches across the entire
country.
At the political level, the Minister of Lands is responsible for the administration of the
cadastral system in Kenya through the Permanent Secretary and the heads of departments of
Survey, Lands, Physical Planning, Land Adjudication and Settlement. Recently, the
department of Land Reform Unit, Administration and Planning were created. The various
departments depend on each other for the supply of information needed for the day-to-day
administration of land. For example, the Commissioner of Lands initiates the process of land
alienation and allocation while the Director of Physical Planning prepares the Part
Development Plans (PDPs) based on the spatial information provided by the Director of
Survey.
The figure below shows the structure of the Ministry of Lands.

Cadastral Surveying and Mapping System in Kenya

The conduct of cadastral surveys in Kenya is controlled by the Survey Act, Cap 299 of the
Laws of Kenya. The Director of Surveys acts as the administrator of the Act on behalf of the
Government. Since 1986, most of the cadastral surveys have been privatised and are
exclusively conducted by Licensed Land Surveyors. Today, the Government’s primary role is
that of maintaining a supervisory role and ensuring quality control in the execution of the
surveys through the enforcement of a Code of Ethics and the Survey Act through the Land
Surveyors Board.
Since 1903 a large amount of cadastral data has been generated as a result of surveys. This
data includes survey plans, field notes, computations, registry index maps, aerial
photographs, topo-cadastral maps, the 1: 50,000 adjudication boundary maps, deed plans and
title deeds. Majority of the records are kept by the Director of Surveys except for copies of
title deeds which are kept by the Commissioner of Lands. It is estimated that about four
million hectares of land have been surveyed and registered under the precise cadastral survey
system since 1903.

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Components of a Cadastre
The essential elements of a modern cadastre can be summarised as follows:
1. It is a register or number of registers containing information on ownership, valuation,
land use and any other matters dealt with by the cadastre, for every land parcel. Of prime
importance is that the basis of the cadastre is land parcels; not buildings, people or any
other criteria. Even though many modern cadastres maintain information on fiscal matters
within the cadastral registers, it is in general the legal component of the cadastre which
has prime importance. The majority of the registers in the cadastre relate to legal matters,
particularly concerning ownership and other legal interests in land, and conveyancing
matters. The basic parcel must be common to all registers.
2.
3. The cadastre must be complete. Every parcel of land in the state or jurisdiction must be
displayed on the maps and included in the respective registers. Ideally, this would include
all state-owned parcels including reserves, parks, roads and unalienated land, if
applicable.

4. Each parcel in the cadastre must have a unique common identifier to be used by all
authorities dealing with parcel-based information. This is the key that connects the maps
and registers in the system. Ideally, the use of this identifier by all authorities would be
enforceable at law. Common identifiers include:

a) volume number and folio number derived from title registration;

b) recorded survey plan number and parcel number;
c) rectangular land survey system descriptions (as found in the United States and
Canadian rectangular survey systems);
d) municipal, village or regional unit and parcel number;
e) map number and parcel number;
f) municipality, suburb or region and street address; and
g) geographic coordinates.

43
5. The cadastre must be dynamic, that is, it must be continually updated. There must be
legally enforceable procedures which require that all changes to the information in the
cadastre must automatically and immediately update the registers and large scale maps.

6. The information in the registers must be correct and preferably have legal status and be
"guaranteed" by the state. This aspect particularly applies to title registration but equally
could apply to all encumbrances or matters affecting title.

7. The contents of the registers should be public, within reasonable limits. It must be
available to all government authorities.

8. The large-scale mapping system must be supported by a permanently marked and well
maintained, coordinated survey system. Such a system is mandatory so as to be able to
integrate all forms of spatial information.

9. The cadastre must include an unambiguous definition of parcel boundaries both in map
form and on the ground; this is usually the result of cadastral surveys. The most common
method of carrying this out is to permanently monument the parcel boundaries. These
monuments are then surveyed by ground methods with the corresponding measurements
being displayed on technical maps or plans. In such a system the boundaries of each
parcel can be precisely defined and located on the ground even if the boundary
monuments are missing or disturbed.

Types of Cadastres & Their Functions

a) Judicial Cadastre (Legal Cadastre)

The judicial cadastres are created to record ownership and all other legal interests in land.

b) Fiscal Cadastres

Fiscal cadastres are developed to raise revenue through taxation of land.

c) Multipurpose cadastres

Multipurpose cadastres are created when additional registers or information is added to

the judicial (legal) or fiscal components within the cadastre.

Multipurpose cadastres will arise where information about resources, land use planning,
land value and land titles, including individual and indigenous rights, are integrated into a
single geospatial database for effective utilization.

THE LAND SURVEYOR

Definition of a Surveyor

44
The Survey Act CAP 299 defines a Surveyor as a person who is a Government Surveyor or a
licensed surveyor.
A Government Surveyor is defined as any officer of the Survey Department of the
Government who is authorised by the Director of Surveys to perform any duty as required by
the Survey Act.
A licensed surveyor means a surveyor licensed as a surveyor under the Survey Act.
According to the International Federation of Surveyors (FIG) (Fédération Internationale des
Géomètres), a surveyor is a professional person with the academic qualifications and
technical expertise to conduct one, or more, of the following activities;
 to determine, measure and represent land, three-dimensional objects, point-fields and
trajectories;
 to assemble and interpret land and geographically related information,
 to use that information for the planning and efficient administration of the land, the
sea and any structures thereon; and,
 to conduct research into the above practices and to develop them.
What is FIG (Fédération Internationale des Géomètres)?
FIG is the premier international organization representing the interests of surveyors
worldwide. It is a federation of the national member associations and covers the whole range
of professional fields within the global surveying, geomatics, geodesy and geo-information
community. It provides an international forum for discussion and development aiming to
promote professional practice and standards.
FIG was founded on July 18, 1878 in Paris by delegates from seven national associations -
Belgium, France, Germany, Great Britain, Italy, Spain and Switzerland - and was known as
the Fédération Internationale des Géomètres. This has become anglicized to the International
Federation of Surveyors. It is a UN-recognized non-government organization (NGO),
representing more than 120 countries throughout the world, and its aim is to ensure that the
disciplines of surveying and all who practise them meet the needs of the markets and
communities that they serve.
Requirements for Licensing as Surveyor
Licensing of Surveyors is undertaken by the Land Surveyors’ Board established by section 7
of the Survey Act.
Land Surveyors’ Board
The Land Surveyors’ Board is made up of the following: -
a) the Director, who shall be the Chairman;
b) seven surveyors employed in the public service being licensed surveyors or holders of
an East African Land Survey Certificate and who are full members of the Institution
of Surveyors of Kenya (Chapter of Land Surveyors). The seven shall be appointed by
the Minister as follows:-
i) two of them on the advice of the Permanent Secretary to the Ministry

45
 ii) four of them on the advice of each of the Permanent Secretaries of the
Ministries for the time being responsible for transport, local government,
forestry and housing;
iii) one of them on the advice of the Vice-Chancellor of the University of Nairobi;
c) Four licensed surveyors in private practice elected by licensed members of the
Institution of Surveyors of Kenya.

Functions of the Board

1. To conduct the examination of candidates for admission as licensed surveyors
2. To grant licences in accordance with the Survey Act
3. To keep a register of all licensed surveyors;
4. To take disciplinary proceedings against licensed surveyors in accordance with the
Survey Act
5. To hear and determine any dispute between any licensed surveyor and his client as to the
fees charged by the licensed surveyor
6. To hear and determine any dispute between the Director and a licensed surveyor as to the
application of any regulations in which provision is made for reference to the Board
7. To advise the Director on all matters relating to cadastral surveys in connection with the
registration of land or of title to land.
Eligibility for Licensing as a Surveyor
Section 10 of the Survey Act a person shall be licensed if they are qualified under the Act and
upon payment of a prescribed fee.

A person shall be entitled to be examined if he/she: -

a) has previously practised land surveying regularly and faithfully for such period as the
Board may require, in the Survey of Kenya or with a licensed surveyor in Kenya and
produces a Statutory Declaration from the Director of Surveys or such licensed
surveyor as evidence of such practice.
b) satisfies the Board that he has pursued suitable courses of study in land surveying and
mathematics and he has had practical experience in land surveying.

Exemptions

A person may be exempted by the Board from sitting the whole of or part of the examination
if he or she

46
 a) was duly registered as a licensed surveyor in accordance with the provisions of any
written law relating to the registration of surveyors in force at any time before the
commencement of this Act;
b) is the holder of an East African Land Survey Certificate
c) has taken a degree in land surveying from a university recognized by the Board,
passed the Kenya land law examination and has had not less than two years practical
experience with the Survey of Kenya or with a licensed surveyor
d) is the holder of a licence to practise as a surveyor in any country which the Minister
may approve by notice in the Gazette;
e) is the holder of the qualification of Fellow or Professional Associate of the Royal
Institute of Chartered Surveyors in subdivision V (Land Surveying)

Examination
An application for examination shall be made to the secretary of the Board in writing at least
one month prior to the date on which such examination is to take place.

The application for examination shall be in the prescribed form and shall be accompanied by
the prescribed fee.

Issuance of License

The Board shall issue a license on the condition that one: -

a) has attained the age of 21 years

b) has passed the prescribed exams or has been exempted
c) has complied with other requirements of the Survey Act payment of license fees.

Functions of a Surveyor.

The functions of a Surveyor can be categorised into general and specific functions.

General Functions

A surveyor is a professional person with the academic qualifications and technical expertise
to conduct one, or more, of the following activities;

1. to determine, measure and represent land, three-dimensional objects, point-fields and

trajectories;
2. to assemble and interpret land and geographically related information,
3. to use that information for the planning and efficient administration of the land, the sea
and any structures thereon; and,
4. to conduct research into the above practices and to develop them.

Specific Functions

47
The surveyor’s professional tasks may involve one or more of the following activities which
may occur either on, above or below the surface of the land or the sea and may be carried out
in association with other professionals.

1. The determination of the size and shape of the earth and the measurement of all data
needed to define the size, position, shape and contour of any part of the earth and
monitoring any change therein.
2. The positioning of objects in space and time as well as the positioning and monitoring
of physical features, structures and engineering works on, above or below the surface
of the earth.
3. The development, testing and calibration of sensors, instruments and systems for the
above-mentioned purposes and for other surveying purposes.
4. The acquisition and use of spatial information from close range, aerial and satellite
imagery and the automation of these processes
5. The determination of the position of the boundaries of public or private land,
including national and international boundaries, and the registration of those lands
with the appropriate authorities.
6. The design, establishment and administration of geographic information systems
(GIS) and the collection, storage, analysis, management, display and dissemination of
data.
7. The analysis, interpretation and integration of spatial objects and phenomena in GIS,
including the visualisation and communication of such data in maps, models and
mobile digital devices.
8. The study of the natural and social environment, the measurement of land and marine
resources and the use of such data in the planning of development in urban, rural and
regional areas.
9. The planning, development and redevelopment of property, whether urban or rural
and whether land or buildings.
10. The assessment of value and the management of property, whether urban or rural and
whether land or buildings.
11. The planning, measurement and management of construction works, including the
estimation of costs.

In the application of the foregoing activities surveyors take into account the relevant legal,
economic, environmental and social aspects affecting each project.

1. CONDUCT OF FIXED SURVEYS

Fixed surveying is the process of demarcating and installing fixed boundaries on land. A
fixed boundary is an unchangeable boundary created by operation of law. Section 19 (3) of
the Land Registration Act 2012 (section 22 (3) of the Registered Land Act (Repealed)) a
boundary shall be a fixed boundary where the dimensions and boundaries of a parcel of land
are defined by reference to a plan verified by the office responsible for survey and a note
made in the land register.

Fixed surveying involves the installation of survey marks to demarcate or indicate a fixed
boundary. A survey mark is defined as:

48
 “any trigonometrical station, fundamental benchmark, bench mark, boundary
beacon, peg, picket mark or pole, whether above or below the surface of the
ground, which is fixed, placed or set up by, or under the direction of a surveyor
for the purpose of any survey under the Survey Act”

Design and specification of Survey Marks

The Director of Survey shall specify the design of the survey marks to be used and this shall
be set out in the report on the survey.

When an original grant is being re-surveyed or subdivided, any beacon which does not
constitute a permanent and fine mark shall be replaced by a new beacon or be referenced to a
nearby witness mark.

Every new triangulation or trilateration station other than a purely auxiliary station shall be
permanently marked.
Triangulation is based on the trigonometric proposition that if one side and two angles of a
triangle are known, the remaining sides can be computed. Furthermore, if the direction of one
side is known, the directions of the remaining sides can be determined. A triangulation system
consists of a series of joined or overlapping triangles in which an occasional side is measured
and remaining sides are calculated from angles measured at the vertices of the triangles. The
vertices of the triangles are known as triangulation stations. The side of the triangle whose
length is predetermined, is called the base line. The lines of triangulation system form a
network that ties together all the triangulation stations.

Triangulation surveying is the tracing and measurement of a series or network of triangles to

determine distances and relative positions of points spread over an area, by measuring the
length of one side of each triangle and deducing its angles and length of other two sides by
observation from this baseline.

49
A trilateration system also consists of a series of joined or overlapping triangles. However,
for trilateration the lengths of all the sides of the triangle are measured and few directions or
angles are measured to establish azimuth. Trilateration has become feasible with the
development of electronic distance measuring (EDM) equipment which has made possible the
measurement of all lengths with high order of accuracy under almost all field conditions.

All traverse stations shall whenever possible be permanent points. A traverse is a series of
straight lines called traverse legs. The surveyor uses them to connect a series of selected
points called traverse stations (TS). The surveyor makes distance and angle measurements and
uses them to compute the relative positions of the traverse stations on some system of
coordinates.
Under regulation 59 of the Survey Regulations all geodetic and secondary traverses shall be
carried out under the control of the Director and shall normally be performed by Government
surveyors.
Where conditions do not permit the establishment of permanent traverse stations, the surveyor
shall provide an alternative form of referencing, and the reason shall be stated in the
surveyor’s report.
Placement of Survey Marks
Boundary beacons shall be of such type as the Director may require and shall normally be
surmounted by a cairn of stones or a mound of earth. The primary consideration in placing all
survey beacons is their durability, having regard to the fineness of the mark required for the
purpose.
d) RELOCATION SURVEY/RE-ESTABLISHMENT OF LOST BOUNDARY
In every survey of land, where the position of an existing beacon is found to differ materially
from that indicated by the relevant previous survey, the surveyor shall exercise the greatest
care—
i) in establishing that the discrepancy actually does exist; and
ii) in collecting all evidence which may have a bearing on the eventual action to be
taken.

A careful search shall be made in the position indicated by the previous survey to ascertain
whether or not any evidence of an old beacon or its reference marks still exists, and the
position of any buildings or other development shall be recorded.
Where the situation allows, the surveyor, before taking further action, shall provide the
Director with a full report, and shall request instructions.

Missing Beacons

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Missing beacons shall be noted in the surveyor’s report, and in order to demonstrate that he
has searched in the right place the surveyor shall furnish such measurements and observations
as may be needed.
Re-establishment of Missing Beacons
If a surveyor is required to re-establish a missing beacon he shall submit his field notes,
computations, and report, to the Director.
Normally such survey shall be carried out in conformity with the provisions of the Survey
Regulations covering the determination of new beacons, having regard to all other evidence,
but in special cases such as within the areas of the compass surveys in the Coast Province, the
Director may authorize methods and make alternative requirements.

e) MUTATION (SUB-DIVISION AND AMALGAMATION/CONSOLIDATION)

Sub-Division (Mutation)
A land owner may apply to the Lands Registrar for the division of a parcel of land into two or
more parcels. This shall be subject to authentication of the cadastral map. Registrar shall
effect the sub-division by closing the register relating to the parcel andopening new registers
in respect of the new parcels resulting from the sub-division, andrecording in the new
registers all subsisting entries appearing in the closed register.
Before submitting any survey to the Director, a licensed surveyor shall ensure that approval
has been obtained for a subdivision of any plot of land in any case where such approval is
required by any Act and that the survey submitted conforms with such approval.
The competent authority responsible for giving approval under each respective Act are as
follows:-

Category of Land Legislation Authority

All leaseholds grants Government Lands Act (CAP Commissioner of Lands
280)
Trust Land Act (CAP 288)
Urban Town Planning Act (CAP 134) Commissioner of Lands
Agricultural Land Control Act (CAP 302) Land Control Board

Mutation Form – In the case of sub-divisions, The registrar may correct the line or position
of any boundary shown on the registry map with the agreement of every person shown by the
register to be affect by the correction. Such corrections however may only be made on
instructions from the Registrar in writing by means of a mutation form.

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See below samples of a Mutation Form

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53
54
Amalgamation/Consolidation
A land owner who has two or more contiguous parcel of land, which are subject to the same
rights and obligations, may apply to the Registrar to combine these parcels to one single
parcel of land, subject to the authentication of the cadastral map. The Registrar shall close the
registers relating to these parcels of land and open a new register in respect of the parcel
resulting from that combination.
Before submitting any survey to the Director, a licensed surveyor shall ensure that approval
has been obtained for an amalgamation of any plot of land in any case where such approval is
required by any Act and that the survey submitted conforms with such approval. The
competent authority responsible for giving approval under each respective Act is shown
above.

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 TRANSACTIONS IN LAND
Introduction to Conveyancing
Conveyancing is generally understood as the transfer of estates and interests in land by legal
process. Abbey Robert and Richards Mark rightly consider conveyancing as ‘the process by
which legal title to property is transferred.’ (Abbey Robert & Richards Mark, A Practical
Approach to Conveyancing, (3rd Ed), Blackstone Press Ltd., London, 200,).
The Black’s Law Dictionary defines conveyancing is the act of or business of drafting and
preparing legal instruments, especially those (such as deeds or leases) that transfer an interest
in real property.
Conveyancing is the art or science of preparing documents and investigating title in
connection with the creation and assurance on interests of interests in land.
A more elaborate definition of what conveyancing entails is that it is concerned with legal
mechanisms through which the ownership of land or the ownership of an interest in land is
transferred from one person to another. Conveyancing is therefore about how to transfer
ownership in land, about the rights of the parties at different stages in real property
transactions and about their respective positions if things should go wrong in the course of
the transaction.

There are several transactions that relate to land. These include but are not limited to:-
i) Grants/allotment
ii) Alienation
iii) Compulsory Acquisition
iv) Surrender
v) Resumption
vi) Conversion
vii) Mutation (sub-division or amalgamation)
viii) Remainder
ix) Change of User
x) Transfer.

i) Grants/Allotment
An allotment is an allocation of unalienated government or public land by the National
Government or County Government to a selected person through a letter of offer. Unalienated
government land is government land which has not been leased to any other person or which
the Commissioner of Lands has not issued any letter of allotment.
The Government Lands Act (GLA) (Repealed) authorised the President to make grants of any
estate, interest, or right over unalienated Government land. The GLA authorized the
President’s powers to be delegated to the Commissioner of Lands, such that either the
President, in person, or the Commissioner could make grants of land.

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The following steps where followed where a grant was made:-
1. Valuation of land for purposes of determining rent - the GLA authorized the
Commissioner to charge rent on grants of land and the amount of rent payable would be
stated in the letter of allotment.
2. Issuance of letter of allotment – a letter of allotment would be prepared by the
Commissioner in favour of the allottee.

3. Registration of Conveyance - the Act required that all transactions with respect to
Government lands be registered in the Government Lands Registration offices.

ii) Alienation
Alienation means the sale or other disposal of the rights to land. This term is commonly used
to describe the disposal or alienation of trust lands. This refers to cases where trust land
ceases to being trust land and becomes either Government land or land privately held. The
relevant laws that govern land alienation include the Constitution of Kenya, Land
Consolidation Act (CAP 283) and the Land Adjudication Act (CAP 284). the Land
Adjudication Act and the Land Consolidation Act specify procedures for alienation and
disposal of trust lands to both public and private bodies. The Land (Group Representatives)
Act (Cap 287) also applies in certain cases of registration of Trust lands. Upon adjudication
and registration, trust lands cease to be trust lands.
The alienation or disposal of trust lands involves a number of steps as follows:
1. Application of the land Adjudication Act to an area
2. Appointment of adjudication officers
3. Conducting a survey and demarcation
4. Preparation of a demarcation map
5. Preparation of forms for every parcel of land
6. Correction of errors in the adjudication record
7. Display of the original Adjudication Register for inspection
8. Presentation of the Adjudication register to the Director of Land Adjudication
9. Certification of the Adjudication Register
10. Registration of titles
11. Issuance of Titles

iii) Compulsory Acquisition

Compulsory acquisition means the power of the State to deprive or acquire any title or other
interest in land for a public purpose subject to prompt payment of compensation.
The procedure for compulsory acquisition of land is as follows:-

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 1. Issuance of a Preliminary Notice
Whenever the national or county government requires to acquire some particular land for
public purposes or in the public interest the respective Cabinet Secretary or the County
Executive Committee Member shall submit a request for acquisition of land to the National
Land Commission to acquire the land on its behalf.
The Commission shall prescribe a criteria and guidelines to be adhered to by the acquiring
authorities in the acquisition of land.
The Commission may reject a request of an acquiring authority, to undertake an acquisition if
it establishes that the request does not meet the requirements prescribed under subsection (2)
and Article 40(3) of the Constitution (Protection off right to property).
Upon approval of a request for acquisition of land, the Commission shall publish a notice to
that effect in the Gazette and the county Gazette, and shall deliver a copy of the notice to the
Registrar and every person who appears to the Commission to be interested in the land.
Upon service of the notice, the registrar shall make an entry in the register of the intended
acquisition.
interested persons shall include :-
- any person whose interests appear in the land registry and the spouse or spouses of
any such person
- any person actually occupying the land and the spouse or spouses of such person.
All land to be compulsorily acquired shall be geo-referenced and authenticated by the office
or authority responsible for survey at both the national and county government.
2. Power to enter and inspect land
The Commission may authorize, in writing, any person, to enter upon any land which is about
to be compulsorily acquired spec and inspect the land to ascertain whether the land is suitable
for the intended purpose.
An authorization to enter the land and inspect shall not empower a person to enter a building,
or an enclosed court or garden attached to a dwelling house, unless that person—
a) has first obtained the consent of the occupier;
b) has served on the occupier a not less than seven days written notice of the intention to
enter.
Commission shall promptly pay in full, just compensation for any damage resulting from the
entry.

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 3. Notice of acquisition
The land may be acquired once Commission certifies, in writing, that the land is required for
public purposes or in the public interest.
If, after land has been compulsorily acquired the public purpose or interest justifying the
compulsory acquisition fails or ceases, the Commission may offer the original owners or their
successors in title pre- emptive rights to re-acquire the land, upon restitution to the acquiring
authority the full amount paid as compensation.
4. Compensation to be paid
If land is acquired compulsorily under this Act, just compensation shall be paid promptly in
full to all persons whose interests in the land have been determined.
The acquiring body shall deposit with the Commission the compensation funds in addition to
survey fees, registration fees, and any other costs before the acquisition is undertaken.
The Commission shall make rules to regulate the assessment of just compensation.
5. Inquiry as to compensation
At least thirty days after publishing the notice of intention to acquire land, the Commission
shall appoint a date for an inquiry to hear issues of propriety and claims for compensation by
persons interested in the land.
The Commission shall:-
a) Publish a notice of the inquiry in the Gazette or county Gazette at least fifteen days
before the inquiry;
b) serve a copy of the notice on every person who appears to the Commission to be
interested or who claims to be interested in the land.
The notice of inquiry shall call upon persons interested in the land to deliver written claim of
compensation to the Commission, not later than the date of the inquiry.
At the hearing, the Commission shall: -
a) make full inquiry into and determine who are the persons interested in the land; and
b) Receive written claims of compensation from those interested in the land.
For the purposes of an inquiry, the Commission shall have all the powers of the Court to
summon and examine witnesses, including the persons interested in the land, to administer
oaths and affirmations and to compel the production and delivery to the Commission of
documents of title to the land.
6. Award of compensation

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At the end of the inquiry the Commission shall prepare a written award. the Commission
shall make a separate award of compensation for every person whom the Commission has
determined to have an interest in the land.

The award shall be final and conclusive evidence of:-

i) the size of the land to be acquired;
ii) the value, in the opinion of the Commission, of the land;
iii) The amount of the compensation payable, whether the persons interested in the
land have or have not appeared at the inquiry.
The award shall not be invalidated by reason only of a discrepancy which may thereafter be
found to exist between the area specified in the award and the actual area of the land.
If an interest in land is held by two or more persons as co-tenants, the award shall state—
a) the amount of compensation awarded in respect of that interest; and
b) The shares in which it is payable to those persons.
Every award shall be filed in the office of the Commission
iv) Extension of Lease
When the term of lease is nearly over an individual may apply for an extended period.
v) Change of user.
It can be from agriculture to commercial or residential or vice versa.
vi) Consolidation
To consolidate 2 or more properties provided the leases are co-terminus.
vii) Conversion.
The lease is converted from 99 years or vice versa.
viii) Transfer
Subdivision with the aim of selling a portion.
ix) Surrender
When an individual surrenders part of land to the government, sometimes given as a
condition for further transaction, e.g. surrender of a strip of land to the government for the
purpose of widening of the road as a condition of subdivision.
x) Transfer of surrender
To transfer from an individual to another and surrender back to government.
xi) Remainder
Prepared to show the residue after portions have been sold or transferred.
xii) Acquisition
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Prepared to show part of land to be acquired by government for public purpose.
xiii) Deed of resumption
Land to be resumed by government for purpose of a railway reserve passing over a registered
private property.
xiv) Combined certificate of Title
Prepared for the instrument of combining two or more properties held by one person under
one title but cannot be consolidated since the terms are different.
xv) Agreement
This is usually prepared for adjacent neighbours to show an agreement e.g. the boundary is
no longer the meridian of a swamp but a canalised channel.
xvi) Mortgage
This is prepared for the purposes of securing a loan
xvii) Covenant
This is prepared to show how two properties were tied by covenant, when one of the
properties is a freehold and the other is leasehold.
xviii) Certificate of Title
Only found in the office of the recorder of titles in Mombasa under L.T.A No measurements
are shown on this deed plan
xix) Deed of Variation
This is prepared for rectification of title under the government expense, where land has been
registered without showing roads, riparian reserve or trig station reserve. Such a deed plan
will show the position of the reserve only and will not necessarily show details of the land
where the reserve is to be made.

xx) Easement

This is prepared to show water pipelines, telephone lines, electric lines etc over a registered
property.

xxi) Certified true copy of deed plan.

A certified true copy of a deed plan can be prepared if the original got lost before it was
registered in the lands office. The following conditions will apply before a C.T.C can be
issued.

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a) A formal application to the Director of survey requesting for a C.T.C, explaining the
circumstances under which it got lost.
b) A signed affidavit from an advocate to confirm that such a deed plan is actually lost or
misplaced and cannot be found or traced.
c) A provisional undertaking that the original deed plan will be released to Director of
survey for easy cancellation if ever it is found.
d) If the title gets lost after registration at the lands office, then no C.T.C can be issued
but a provisional copy of the title can be prepared in the land office after paying the
necessary fee ( of about ksh 50)

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 LAND DISPUTES AND ARBITRATION
NATURE OF LAND DISPUTES
A “land dispute” involves conflicting claims to rights in land by two or more parties, focused
on a particular piece of land. This dispute can be addressed within the existing legal
framework. Land disputes may or may not reflect some broader conflict over land.
By contrast, a “land conflict” involves competing claims to large areas of land by groups, of a
breadth and depth not easily resolved within existing law. There is often no consensus on the
rules to be applied, and the parties may have quite different understandings of the nature of
the conflict.
Defining Land Dispute/Conflict
A conflict, as defined by sociologists, is a social fact in which at least two parties are
involved and whose origins are differences either in interests or in the social position of the
parties.
Consequently, a land conflict can be defined as a social fact in which at least two parties are
involved, the roots of which are different interests over the property rights to land: the right to
use the land, to manage the land, to generate an income from the land, to exclude others from
the land, to transfer it and the right to compensation for it. A land conflict, therefore, can be
understood as a misuse, restriction or dispute over property rights to land.

Types of Land Disputes

Disputes over land fall into four general categories. This system of classification is based on
the kind of land involved (state, private or common property), the specific object of the
conflict as well as the legitimacy of actions and the level of violence used by the parties.
These four general categories are:-
a) Conflicts occurring on all types of properties;
b) Special conflicts over private property;
c) Special conflicts over common and collective property; and
d) Special conflicts over state property.

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A) CONFLICTS OCCURING ON ALL TYPES OF PROPERTIES
These include:-
1. Boundary conflicts
- Between individuals (over private land)
- Between clans (over common property) due to oral tradition and physically
unfixed boundaries
- Between administrative units (villages, communities, municipalities, districts)
- Between private individuals and the state (over private or state land)

2. Inheritance conflicts
- Inheritance conflicts within a family
- Inheritance conflicts within a clan

3. Ownership conflicts due to legal pluralism

- Overlapping/contradictory rights due to legal pluralism(customary/indigenous
rights vs. statutory law)

4. Ownership conflicts due to lack of land registration

- Several people claim the same property because
a) no land registration exists,
b) it is in bad conditions; or
c) it has been destroyed
- Distribution of intermediate tenure instruments which cannot be registered;
- Due to unequal knowledge and financial means only the well-off register land –
even that of others.

5. Ownership conflicts between state and private/common/collective owners

- Unclear and non-transparent demarcation of state land by armchair decision
resulting in unintended expropriation of individuals and groups.
6. Multiple sales/allocations of land
- Multiple sale of privately owned land by private individuals
- Multiple sale of common property
- Allocation of same land parcels by the land registration office due to technical
shortcomings or corruption (acceptance of faked titles)
- Overlapping/contradictory rights due to double allocation of land titles by
different institutions all legitimised to do so
- Multiple sale of state land by public officials
7. Limited access to land due to discrimination by law, custom or practise
- Women often only get access to land through a male relative making them
vulnerable in case of divorce or widowhood
- Ethnic minorities are often discriminated against by law or practise
- Orphans are often de facto excluded from inheriting their parents’ property

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8. Peaceful, informal land acquisitions without evictions
- Illegal occupation of state, private or common land (squatter settlements etc.)
- Extensions of property on neighbouring private, public or common land
- Market-driven displacements within which speculators or developers pay less than
the real market value due to information asymmetry

9. Violent land acquisitions, incl. clashes and wars over land

- Violent attacks on property owners, including chasing them from their property by
criminals - often (former) military, Para-military, military police, guerrillas etc.
- Illegal occupation of common or collective land by an individual or company for
private use (often with support of corrupt public officials)

10. Evictions by land owners

- Evictions of semi-legal settlers (those who violate building regulations) from
state, private or common property
- Evictions of illegal settlers (those who have no legal rights to the property) from
state, private or common property
- Unjustified termination of tenancy/lease contract by property owner

11. Illegal evictions by state officials acting without mandate

- Illegal evictions by state officials acting without mandate on their own behalf

12. Market evictions and distortion of local land market/values

- Poor people not being able to afford to stay on their property due to increases in
its value and correspondingly in tax or rent due to upgrading, formalisation,
legalisation or also due to foreign investment, including investment funds

13. Disputes over the payment for using/buying land

- Refusing to pay the state for lease of state land
- Refusing to pay rent for renting private property
- Disagreement between landlord and tenant over the number of crops to be paid in
case of sharecropping
- Refusing to pay (full amount) in case of land purchase, including cheating (e.g.
writing invalid checks)

14. Disputes over the value of land

- Between citizen and the state in case of compensation or tax
- Between private persons (e.g. to define indemnity for sibling in case of
inheritance)

15. Conflicts between human/cultural and natural use (flora and fauna)
- Misuse and overuse of agricultural land

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 - Salination of irrigated land
- Contamination of land
- Unsustainable land uses such as conversion of forests into construction land or
settlements at risk prone locations
- Conflicts between natural protection and farming or mining
- Conflicts between wildlife and peasants

16. Destruction of property

- Violent attacks on land (e.g. destruction of farmland)
- Destruction of buildings owned by the owner of the property
- Destruction of buildings illegally put on a property
Cases and disputes on Adjudication areas.
Under section 30 of Cap 284 except with the written consent of land adjudication officer no
person shall institute and no court shall entertain any civil proceedings concerning an interest
in land in any adjudication section until the adjudication register for that section become final
in all respects.
Interest in relation to land includes absolute ownership of the land and any right or interest
over or on the land which is capable of being registered under R.L.A. Cap 300.
Disputes in R.L.A Area.
In R.L.A here includes, consolidation, Adjudication and settlement schemes and it is worthy
to note that stage should dispute be heard and by whom. This will help those keeping such
records to guard themselves against giving statements or even finding themselves in law
courts to answer for questions they could have avoided.

Land disputes in Kenya

It revolves around registration, transfer and succession or transfer.
Categories of Disputes
Registered owners and other claimant_ use emanate from the areas that were mainly trust
lands and where Adjudication, consolidation and registration has taken place. The disputes
symbolises the clashes between individual ownership (English system) and communal
ownership (customary law). Registration introduces land ownership whereby those requested
to be indefeasible and absolute owners. These disputes are determined index RLA.
However due to conflicting judgements passed by ordinary courts of Law, In 1981 parliament
passed what is owned as magistrate indirection (Amendment) Act which establishes what are

66
turned as elders court or panel of elder and vested in the authority to hear and decide some
land cases.
Disputes as to succession.
These arises where the land owner dies intestate (without having written a will) and the
family start making conflicting claims about how much land they are entitled to. The law
governing this category of disputes is the law of succession Act (cap160 of law of Kenya).
The laws of succession act provides that sometimes the inheritance of agricultural land in
some areas set aside by the minister will be governed by the customary law of the particular
area (Areas where adjudication has not taken place).
Disputes arising from Group ownership of land.
Disputes under the land (Group) representative Act- these disputes arise as to who should be
registered as member of the ranch. This is more so due to the question of dependants
(especially the young and educated) are refused registration by the group reprentatives.
Disputes are resolves through District Magistrates court within the area where the group
ranch. Upon registration the dependants own undivided shares in the land.
Disputes between private sectors and the state
These disputes arise primarily due to the fact that the state is the overall owner of all land in
Kenya whether held under English law or customary law. The disputes arise from the fact
that the state can acquire land for the public good and the knowledge is clearly defined and
stated in land acquisition Act (Cap 295 of laws of Kenya) which enables the government to
compulsory acquire people’s land after due notice in the Kenya gazette and upon payment of
what the owner might consider inadequate compensation. The court determines the dispute
down re-evaluating the compensation claim.

Role of a surveyor with regard to dispute over registered land.

Under RTA/LTA/SA
1. The surveyor should assembly all the survey data of the area.
a) Registered and registered boundary plans.
b) Survey plans for both plots and control, these could be triangulation and standard
traverse charts.
2. Asses the simplest and the cheapest method that will get the re-established beacons
into their required places and prove them by independent checks.
3. Assess the existing control and decide whether it is sufficient or requires densification
4. Deposit the field data and the beacon certificate signed by both the owner and the
surveyor with the director of survey for save custody.

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Under RLA.
Any ‘lost’ boundary are found by the process described in RLA section 21
There are three possible cases.
1. An ordinary RLA boundary which is not in dispute, but the boundary feature is
missing.
2. An ordinary RLA boundary that is missing and its position is not agreed between
neighbours that is, it is in dispute.
3. A ‘Fixed RLA boundary.
In (1) the two neighbours agree with each other where there is boundary between them
should be, and they mark it on the ground to their own satisfaction. That is al. No survey, no
surveyor, no new map, no new line on a map, no registrar, no procedure. They are right and
the lost boundary is where they say it is, utterly regardless of what may be indicated on the
RIM (registry index map) This form of agreement , if it is involved putting beacons in the
ground , would be illegal under GLA/RTA/SA unless one of the owners was also a licensed
surveyor.
In (2) the procedure is set-out in RLA section 21(2) the registrar hears evidence, which may
or may not include a surveyor, and the registrar determines and indicates to the owners on the
ground, the position of the uncertain or disputed boundary.
In (3) the lost fixed boundary is found or re-established by a licence surveyor using the
survey data and records made when the boundary was originally fixed in terms of RLA
section 22 in the same manner as under GLA/RTA/SA.

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