DISPOSITIONS IN

LAND
 INTRODUCTION
 What does disposition mean?
 S 2 L. R. A –
(a) A sale, charge, transfer, grant, partition,
exchange, lease, assignment, surrender or
disclaimer and includes the creation of an
easement, usufructuary right or other servitude
or any other interest in land or lease and any
other act by an owner of land or a lease whereby
the person’s rights over that land or lease are
affected; OR
(b) An agreement to undertake any such disposition

 Generally disposition is a transfer of an interest in

land.
 WHAT IS LAND?
Article 260 of the Constitution land
includes:-
The surface of the earth and the
subsurface rock;
Any body of water on or under the
surface;
Marine waters in the territorial seas
and the Exclusive Economic Zone;
Natural resources completely
contained on or under the surface and
Airspace above the surface
 2 MAXIMS
 Cujus est solum ejus est usque ad
coelum et ad inferos-
He who owns the land owns everything
extending to the very heavens and the
depths of the earth

 Quicquid plantatur solo solo cedit-

whatever is attached to the ground becomes
part of it.
 CUJUS LIMITATIONS
1. Air space-Civil 2. Water- Water Act
Aviation Act S 56 S3 vests every water
controls heights of resource in the
structures near Government subject
aerodromes to rights of user
granted under any
written law
 LIMITATIONS CONT’D
3. Minerals/Oil 4. Wild animals
Mining Act S 6 (1) – every
mineral is the property of Wildlife Conservation
the State. and Management Act
Petroleum (Exploration and S 22 restricts hunting
Production) Act S 3 - All activities to those
petroleum existing in its licensed
natural condition in strata is
vested in the Government
 Article 62 of the Constitution
defines public land to include all
minerals and mineral oils as defined by
law,...... All rivers, lakes and other
water bodies as defined by an Act of
Parliament.......public land shall vest in
the National Government in trust for
Kenyans
 FIXTURES V CHATTELS
 The fixtures must be 2 tests (Holland v.
permanently affixed Hodgson (1872) LR 7
for the beneficial CP 328)
enjoyment of the 1. Method and degree
land. of annexation
2. Object and purpose
of annexation
 Case law useful in Importance
determining realty  For tax purposes
and personalty  Value for money
 Determine the
subject of the
conveyance
Wiltshear vs Cottrell (1853) 1 E & B 674
The principle is that where an article is fixed by
the owner of the fee, though only affixed by bolts
and screws, it is to be considered a part of the
land, in all events where the object of setting up
articles is to enhance the value of the premises to
which it is annexed for the purpose to which those
premises are applied
FIXTURE?
 SUMMARY OF THE COURT OF APPEAL’S
DECISION IN BOTHAM V. TSB PLC(1997) 73
P & CR D
Item Decision

Fitted carpets chattels, because they are easily

removed
Lights fixed to walls or ceilings Only those recessed into the
some of which were in recesses in ceiling were held to be
the ceilings and some of which fixtures
were
attached to the ceiling by tracks

Curtains and blinds, including a chattels, because they

shower curtain are easily removed
Item Decision

Towel rails, soap dishes, and fixtures, because they constituted a

lavatory roll holders permanent improvement to the
land

Fittings on baths and basins, such fixtures, because they constituted

as taps, plugs, and shower heads a permanent improvement to the
land

Kitchen units and work surfaces, fixtures, because they constituted a

including a fitted sink permanent improvement to the
kitchen

White goods in the kitchen such as chattels, because they could be

fridge-freezers, washing machines, easily removed
and dishwashers
 LOCAL CASES
Shaw Vs Shah Devshi &
Co.(1936-37)17 KLR P.20
Sisal machines were bolted to concrete beds in a
factory inside a sisal plantation. The 2 tests were
applied. The Court also stated that the maxim does
not apply to Kenya as the country has its own
statutory provisions dealing with fixtures. (S 108 of
ITPA) its not clear whether this holding applies to
RLA transactions as well.
S 163 of RLA applies common law to issues on which
the Act is silent on so it. Can be argued that the
maxim applies to RLA transaction
 Dharamshi Virji & Ano. V
Abdureman & Ano. (1950)24 KLR
P.24
A wood and iron building standing on a plinth into
which timber was embedded for about 10 years was
held not to be a fixture because it was impermanent in
nature.

 John Njoroge Michuki –vs- Kenya

Shell Ltd [1998] eKLR Nrb Civil
Appeal No. 233 of 1998

 Mukuru Munge –vs- Gilead Mwanyasi

[2006] eKLR; H.C. Appeal No. 93 of
2005
 INTERESTS IN LAND
FREEHOLD
Sec 2, Land Act

LEASEHOLD
Sec 2, Land Act (Lease)
Reversionary Interest
 Freehold Leasehold

Land belongs to owner Land belongs to the Lessor

(may be State), leased to
owner for a number of
years.

Ownership is indefinite At the end of the Lease,

owner must pay to extend
lease
No consent required Requires consent (of Lessor)
(No lessor) to transfer ownership

Easy to get home loan Most banks will not finance

(charges) if less than 50 years on
lease term
 CATEGORIES OF LAND UNDER
CONSTITUTION
Art 61, Constitution:

Private
(Art.64)

Land Public
(Art. 62)

Community
(Art 63)
 OVERRIDING INTERESTS
Interests in land that need not be registered, but are
binding on the owner of the land

Sec 28, LRA

1. Jason Gitimu Wangara V Martin Munene Wangara

& Others [2013] eKLR
2. Kanyi v Muthiora [1984] KLR 712
3. James Ngugi Mbugua & Another V Grace Wairimu
Mwithiga
4. Gathiba V Gathiba (2001)
IMPORTANCE OF LAND
 READING LIST
 The Constitution, Art. 260, Art 62
 Land Registration Act, 2012

 Land Act, Sec 2

 Civil Aviation Act, No. 21 of 2013; Sec 56
 Water Act, 2002; Sec 3
 Mining Act, 2016; Sec 6
 Petroleum (Exploration & Production) Act, Sec 3

 Wildlife Conservation & Management Act, Sec 22

 Holland –vs- Hodgson (1872)

 Wiltshear –vs- Cottrell (1853) 1 E & B 674

 Botham v. TSB Plc(1997) 73 P & CR D

 READING LIST
 Shaw Vs Shah Devshi & Co.(1936-37)17 KLR
P.20
 Dharamshi Virji & Ano. V Abdureman & Ano.
(1950)24 KLR P.24