26.1.

1T INTRODUCTION TO LAW

NATURE AND SOURCES OF LAW

MEANING OF LAW

Though there is no generally accepted definition of law, the following are some of the
definitions:
i. Law is a general rule of external human action enforced by a sovereign political
authority.
ii. The law is the body of principles recognized and applied by the state in the
administration of justice (Salmond)

Thus, the law of State consists of those rules of conduct and standards prescribed by the
people in authority for governing and regulating peaceful relations between members of a
particular community or State. These rules may originate form Acts of Parliament or
customers, and are enforced by the duly constituted courts of law - punishment in
criminal cases or pay damages or deliver property in civil actions.

CLASSIFICATION OF LAW

The law is divided into two main branches:

a) Criminal law;
b) Civil Law.
(a) Criminal Law is concerned with crime like murder, rape, grievous bodily harm, robbery,
theft, etc. – all included in the Penal Code of Kenya. A crime may be described as an act,
default or conduct prejudicial to the community, the commission of which, by law, renders
the person responsible liable to be prosecuted and punished accordingly (in the name of the
State v ---- (name of accused)).

The punishment for crime ranges from fine to hanging. Prosecution must establish guilt of
the accused beyond any reasonable doubt.

(b) Civil law is primarily concerned with the violation of private rights belonging to an
individual in his capacity as an individual e.g., refusing to pay a loan, or defaming another.

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 Proceedings are instituted in the courts by the plaintiff himself and the burden of proving
his claim rests on him.
The remedies (punishment) available in civil actions are:
i. Damages: this is a common law remedy designed to compensate the innocent
party by award of damages.
ii. Specific Performance: is the court’s order directing the defaulting party to
carry out his specific obligations, where damages are not an adequate remedy.
iii. Injunction: is a court order telling a person either to do a thing or refrain from
doing a particular act.

Other branches of law

(c) Procedural Law: This lays down the rules in detail for the guidance of the courts
regulating the manner in which the proceedings are required to be conducted in civil and
criminal cases.
(d) Substantive Law: This includes actual rules of law as opposed to adjective or procedural
law. It defines civil and criminal wrongs, and provides remedies for each type of offence or
civil wrong.

THE SOURCES OF KENYA LAW

According to Salmond, a formal source of law is that from which a rule of law derives its force
and validity; that is the will of the State as manifested in statutes or decisions of the courts (i.e.,
the legal source is legislation and precedent), while the historical source is the actual origin of
the rule adopted by the court in arriving at its decision

Section 3 of the Judicature Act sets forth the sources of Kenyan law in the following order:

1) The Kenya Constitution – refers to a comprehensive framework of rule through which

Kenya as a State operates.
2) All other written laws including the Acts of Kenya Parliament and of the United
Kingdom cited in Part I of the Schedule of this Act, modified in accordance with Part II
of that Schedule.

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 3) The substance of the common law, the doctrine of equity and statutes of general
application in force in England on 12th August, 1897. They apply so far only as the
circumstances of Kenya and its inhabitants permit and subject to such qualifications as
those circumstances may render necessary (Section 3(c)).
4) African customary law. Section 3(2) provides that the High Court and all subordinate
courts will apply customary law in civil cases in which one or more of the parties subject
to it or affected by it is African.
5) Islamic Law – Derived from the Quran and is applied by Kadhi`s courts where both
parties profess the Muslim faith and the dispute is related to the matters of: personal
status, marriage, divorce and inheritance.
6) Delegated Legislation – laws (made by bodies other than Parliament) to which
Parliament has delegated the authority to make the laws.
7) Case Law (or Judicial Precedent) – Ruling today used to make rulings for tomorrow.
8) International Treaties by the family of nations, of which Kenya is a signatory.

PARLIAMENTARY LEGISLATION PROCESS

The Parliamentary legislative process goes through the following steps:

1. Drafting of a bill – done by legally qualified specialists attached to office of attorney

general.
2. First reading of the bill in Parliament after which it is printed and circulated to MPs to
prepare for debate.
3. Second reading – concerned MP explains the bill and other MPs are allowed to debate
after which a vote is taken; if the bill is supported by the majority of members present, it
passes to the next stage
4. Committee stage – the committee considers the bill thoroughly clause by clause to
propose amendments, if any
5. Reporting stage – the Chairman of the Committee stage reports back to Parliament the
proposed amendments then the bill proceeds to third reading
6. Third reading – minor drafting of the bill is done; no debating is done.

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 7. President’s assent – a bill properly passed by Parliament does not become law until it is
assented (signed) by the President which he may decline to sign with reasons. Once the
assenting is done the bill becomes law and is entered in the Statute book (book containing
written laws).

Notes

1. “Common Law” originally meant the law that was not confined to one particular area,
but was administered in the whole of England. It is a term now used to signify the law
(other than the legislation) which originated in the ancient customs, and was developed
by judges on the principle of stare decisis (to stand by the decisions already made).
2. The Doctrine of Equity
Back in the days, citizens dissatisfied with the decisions of the judges of common law
courts often made petitions to a higher court, which then applied the rules of natural
justice and morality. The petitions to the Lord Chancellor were made on the following
grounds:
(a) The common law courts provided no remedy for certain wrongs e.g., the trusts were
not recognized.
(b) The remedies provided in certain situations were not satisfactory e.g., in case of
breach of contract, the only remedy available was damages. Specific performance,
part-performance or injunctions were not recognized.
(c) The common law courts sometimes acted partially either under the pressure or
influence or bribe of the other party.
3. Case Law (or Judicial Precedent)
In deciding disputes, judges of inferior courts follow the decisions of the higher courts if
cases involving similar facts and points of law come before them. However, it is not the
entire judgment which is a binding precedent; it is only that part which constitutes the
ratio decidendi (reasons for the decision).
4. Hierarchy of Judicial Authority
The general rule is that every higher court binds lower courts. The Supreme Court binds
the Court of Appeal which, in turn, binds all the lower courts e.g., the High Court, the
Magistrates courts, the Kadhi’s courts etc.

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 THE STRUCTURE AND JURISDICTION OF COURTS IN KENYA

The diagram below illustrates the structure and hierarchy of the courts.

Section 162 of the Kenya Constitution defines Superior Courts as the Supreme Court, the Court
of Appeal, the High Court and the courts established by parliament 162(2) with the status of the
High Court to hear and determine disputes relating to:

(a) employment and labour relations; and

(b) the environment and the use of occupation of, and title to, land. The subordinate courts
(Sect.169) (1) are: (i) are the Magistrates Courts, the Kadhi’s, courts, the Court Martial,
and any other court or local tribunal established by an Act of Parliament, other than the
ones contemplated in 162(2).
1. The Supreme Court

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 Consists of the Chief Justice (the President), the Deputy Chief Justice (the vice-president)
and five other judges. cl.163 (1).

1. The Supreme Courts has: -

(a) exclusive original jurisdiction to hear and determine disputes relating to the
elections to the office of President
(b) appellate jurisdiction to hear and determine appeals from:
i. the Court of Appeal; and
Interpretation or application of the constitution;
Where the Supreme Court or Court of Appeal certifies that a matter of
general public importance is involved
ii. any other court or tribunal as prescribed by national legislation

2. The Supreme Court may give an advisory opinion at the request of the national
government, any State organ, or any county government with respect to any matter
concerning county government.

2. Court of Appeal

Consists of not fewer than 12 judges. The president of the Court of Appeal is elected by the
judges of the Court of Appeal from among themselves.

It has only appellate jurisdiction and it is not the trial court of first instance. It has jurisdiction to
hear appeals from -

(a) the High Court; and

(b) any other court or tribunal as prescribed by an Act of Parliament. While hearing an
appeal, may uphold the decision of the lower court, reverse the decision, substitute
another judgment, or order a new trial.

3 High Court
Headed by a Principal Judge, who shall be elected by the judges of the High Court from
among themselves.
The High Court shall have:

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 a) unlimited original jurisdiction in criminal and civil matters
b) jurisdiction to determine the question whether a right or fundamental freedom in the
Bill of Rights has been denied, violated, infringed or threatened.
c) jurisdiction to hear an appeal from a decision of a tribunal appointed to consider the
removal of a person from office.
d) jurisdiction to hear any question respecting the interpretation of the constitution
e.g., whether any law or anything said (or done) by authority of the constitution is
inconsistent with or in contravention of the Constitution
e) supervisory jurisdiction over the subordinate courts and over any person, body or an
authority exercising a judicial function, but not over a Superior Court
4 Resident Magistrate’s Court
Is established by section (3) of the Magistrate’s Courts Act. It may be presided by the
Chief magistrate, Principal Magistrate, Senior resident magistrate or resident magistrate
and has unlimited jurisdiction over cases arising anywhere in Kenya – restricted by the
amount of money involved in the dispute.

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 LABOUR RELATIONS

The relationships between an employee and His employee is like that of a buyer and a
seller the seller in this case is an employee who tries to get the best prize (the highest
wages and benefits) for his products (for his labour). The buyer (employer) tries to pay
as little as possible for the labour employed in this organization.
However, unlike purchase and sale of commodities, labour relations have a human aspect
which is very important. If this aspect is ignored and negotiations between employee and
employer are conducted purely on the basis of a trade deal the consequences are very
serious.
This incorrect to assume that good labour relations can exist only if the employer agrees
to give whatever the employees demands.

26.3.1T THE LAW OF PROPERTY

The word property comes from the French word ‘propre’, meaning one’s own, and thus property
in law is anything capable of ownership.

26.3.1T11 NATURE OF PROPERTY

Property is broadly categorized as real property (realty) and personal property

(personality/chattels).

Real property (or realty) refers to immovable property (i.e., lands, buildings, minerals, trees and
all other things which form part of or are affixed to land) and includes certain rights derived from
such property (i.e., rights such as easements, profits and rent charges).

Personal property (or personalty), also known as chattels, is any property other than real
property. Included here are chattels or movable property, such as furniture, a book, a watch, a
vehicle, a shirt, a pen, etc. These are called pure personalty.

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Also included in the definition of personal property are what are known as chattels real. These
consist of leases. A lease or leasehold interest in land is a chattel real because historically, it has
qualities of both real and personal property.

There are two types of chattels:

a) Choses in possession – tangible things capable of physical possession whether it consists of

real or personal property e.g., land, book, pen, shirt, etc.

b) Choses in action – are intangible rights which are incapable of physical possession e.g.,
debt, copyrights, trademarks, stocks and shares, goodwill of a business, but it is possible to
assert the right by taking legal action, such as legal action to recover a debt.

26.3.1T12 OWNERSHIP AND POSSESSION OF PROPERTY

The extent (or limit) of a person’s rights over property in respect of which he has a claim,
depends on whether he is the owner or just a possessor of the property in question.

Ownership

A person is an owner of property if he has the ultimate legal right over its use, possession and
disposal. Ownership may be acquired in three ways:

a) By original claim - where a person creates something new, or acquires something

which no one claims (e.g., virgin land in a forest by clearing it and putting it to
some productive use) or which has been abandoned by its previous owner.

b) By derivative means - when a person sells his property to the buyer or he makes a
gift to another person, or he parts with it involuntarily through the operation of law
(e.g., where the court orders his property to be sold in satisfaction of a judgement
debt).

c) By succession - where the previous owner dies, the property may pass to his heir or
to someone else under a will.

Possession

While ownership is a matter of law, possession is a matter of fact. For example, if A obtains
B’s goods by stealing or by fraud, though the goods are no more in B’s possession, his right
of ownership remains unaffected, i.e., he can still enforce his right of ownership remains
unaffected, i.e., he can still enforce his right to recover them.

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 Possession, however, is physical detention coupled with the intention to hold the things
detained as one’s own. Thus, if A throws his old suitcase into the street, it indicates that he
has given up its possession and the finder could become the owner without paying for it.

Possession is best evidence of ownership except as against the true owner. A possessor of
property is presumed to be its owner unless the contrary is proved, derived from the maxim:
“possession is nine points of the law”.

26.3.1T13 DEFINITIONS OF LAND AS PROPERTY

The layman’s definition of land is “the surface area of the earth comprising a number of acres
or hectares”.

Statutory definitions

The Registered Lands Act (RLA) defines land as to include land covered with water, all
things growing on land and buildings and other things permanently affixed to land.

The Registration of Titles Act (RTA) defines land to include land and benefits to arise out of
land or things embedded or rooted in the earth, or attached to what is so embedded for the
permanent beneficial enjoyment of that to which it is so attached, or permanently fastened
to anything so embedded, rooted or attached, or any estate or interest therein, together with
all paths, passages, ways, waters, watercourses, liberties, privileges, easements, plantations
and gardens thereon or thereunder lying or being, unless specifically excepted.

Land tenure systems

Land tenure is the act, right or period of holding land. There are two types of land tenure
system in Kenya:

a) Freehold: It is the greatest interest a person can have on land as it gives the holder absolute
ownership of the land for life. 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.

b) Leasehold: This is the interest in land for a specific period subject to payment of a fee or rent
to the grantor. Payment of rates is made to the respective county governments for services
rendered. Leases are granted by the Government for public land, local authority for trust land and
individuals with freeholds. The maximum term of government leases is 99 years.

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A leaseholder can also apply for a renewal or extension of the lease more particularly if he or she
wants to re-develop the property and the lease period is about to expire or the remaining period is
not enough to recoup the investments.

Interests and Estates

The unit of ownership in the case of pure personality is the chattel itself, so that only two
distinct legal rights - i.e., possession and ownership - can exist at the same time. But in the
case of land, the unit of ownership is not the land itself; rather, it is the estates and interests
artificially created in the land.

There are two basic doctrines which are essential to an understanding of the law relating to
estates and other interests in land: doctrine of tenure and the doctrine of estates.

The doctrine of tenure stipulates that all land is owned by the state and held by its citizens as
tenants.

An estate is an interest in land of defined duration. The doctrine of estates stipulates that a
citizen cannot own land but merely an estate in it authorizing him to hold the land, closely
related to the doctrine of tenure.

26.3.1T14 FREEHOLDS AND LEASEHOLDS

A tenant’s interest in his land is known as his ‘estate’. Tenure refers to a set of conditions
upon which an estate may be held; it relates to how long this interest can be held. There are
two types of estates: freeholds and leaseholds.

Freehold

A freehold estate is one whose duration is fixed but uncertain. For instance, it may be
equitable life interest to be enjoyed by the tenant as long as he remains alive; though it is
uncertain as no one knows for how long the tenant will remain alive.

Freehold estates may be further sub-divided into:

a) Fee Simple

This is the greatest estate in land which may be held. In this case, the duration of the
estate is fixed to the life of the tenant and his heirs, but uncertain because no one knows
for how long the tenant will continue to have heirs.

b) Fee Tail Interest

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 This gives a person only a life estate followed by successive interests of the issue of the
body, i.e., his descendants, which means that on his death, the land would devolve on his
lineal descendants only. If there are no lineal descendants, the estate will be reverted to
the grantor or his successors.

c) Life Interest

In this case, the estate lasts for the life of the grantee only. The estate reverts to the
grantor on the death of the grantee.

d) Estates ‘Per Autre Vie’

In this case, the estate lasts for the life of another person. For example, if ‘A’ is given an
estate for the life of ‘B’ and ‘B’ dies before ‘A’ then this estate reverts to the grantor.

Leasehold

Section 3 of the Registration of Land Act (RLA) defines a lease as a grant, with or without
consideration, by the proprietor of land of the right to the exclusive possession of his land, and
includes the right so granted and the instrument granting it (i.e., document), and also includes a
sublease, but does not include an agreement for lease.

The person who thus acquires a right to exclusive possession of land or immovable property is
called a lessee or tenant; the person from whom the lessee acquires his interest in the land is the
lessor or landlord. The lessor, after granting a lease, remains with what is called a reversion.

Characteristics of leases

A lease is the grant of a right of exclusive possession of a defined piece of land for a definite
period. Leases have certain essential features:

1. Exclusive possession – a lease constitutes a right of the lessee/tenant to exclude others

(landlord, strangers) from the land; unless the landlord is exercising limited rights reserved to
him by the lease agreement to enter and view and repair.

2. The area needs to be defined – section 45 of RLA states that if only part of land is leased,
the lease shall be accompanied by a plan or other description which the Registrar, in his
absolute discretion, deems adequate to identify the part leased.

3. Certain term - a lease must have a maximum duration, ascertainable from its outset, subject
to exception of periodic tenancy which is a lease for a single period, such as a month, which
repeats indefinitely until ended by notice to quit being by either party. The fact that it is
uncertain how many periods there will be in total seat uneasily against the requirement of
certainty of term, since the maximum term cannot be predicted at the beginning of a periodic
tenancy.

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 A term that exceeds one year for leases created under RTA and Government Land Act
(GLA), and that which exceeds two years for a lease created under the RTA need to be
registered. If the requirement for registration is not complied with the lease will only exist as
a contract between the parties and not as an estate in land.

4. In consideration of a price – although the payment of a price is not a precondition of a

lease, almost every lease will involve payment of rent (the money, share, service or other
thing to be so rendered) or a premium (lump sum) or periodical. For instance, a periodic
tenancy is determined according to the frequency of payment of rent e.g., if rent is paid
monthly, it is a monthly tenancy and can be brought to an end by a month’s notice to quit by
either party.

Leases are created by a deed or a mere oral or written lease. An oral or written lease creates only
an equitable interest. There are some terms of lease which are agreed between lessor and lessee.
In any lease, the lessor may require the tenant to sign certain express covenants e.g., to insure
against fire. Apart from these expressed covenants, there are certain implied covenants also.
These relate to the duties of landlords and tenants.

Covenants of Landlords and Tenants

The covenants of landlords and tenants relate to the duties of landlords and tenants.

Landlord’s duties

1. To ensure that the tenant gets complete freedom to enjoy property without disturbance or
interruption from the landlord.

2. The landlord should not use or permit to be used any adjoining land of which he is the
proprietor in such a way which makes difficult the use of the leased premises.

3. There is no implied covenant by the landlord that the property is fit for habitation at the time
of the letting, unless it is a furnished house.

4. In certain cases, it is the duty of the landlord to repair leased premises e.g., where only part of
a building is leased, the landlord should repair roof, main walls, main drains and common
installations. Otherwise, the general rule is that there is no implied obligation by a landlord to
repair leased premises in Kenya.

5. The landlord must disclose to the tenant any material defect in property which is within his
knowledge.

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Tenant’s duties

1. To pay rent in time, even if the property is destroyed. On destruction, the estate remains in
the name of the tenant, therefore he has to pay the rent.

2. Pay rates and taxes, other than those for which the landlord is directly liable.

3. In Kenya, to repair the leased premises. The tenant is under obligation to keep and, on
termination of the lease, restore the property in as good a condition as it was at the
commencement of the lease. Where only a part of a building or where a dwelling house is let
furnished, the tenant is responsible for only internal repairs.

4. He must not do deliberate damage to the leased property or permit it to depreciate

unreasonably by neglect.

5. Must not transfer, charge, sublet or otherwise part with possession of the leased premises
without the written consent of the lessor.

6. Must permit the landlord or his agent to enter on the premises and examine its condition.

Types of leases

1. Fixed period leases

These are common in business and domestic land ownership e.g., 1, 3, 7, 99 or 999 years. At
the end of the period the right to exclusive possession reverts back to the lessor. The lease
cannot be ended by mere notice to quit, but if the lessee is in breach of a covenant, then the
lessor can take steps to remove the tenant.

Similarly, the lessee cannot give notice to end the lease unless a clause is written in, giving
the parties the opportunity to terminate at certain specified times.

The lessee can surrender the lease back to the lessor but only if this is agreed between the
parties.

2. Periodic tenancies

(e. g. weekly, monthly, quarterly and yearly tenancies)

These continue indefinitely until ended by notice to quit from either party. Whilst they do not
seem to be for a fixed period, the law regards them to be so, e.g., for a week. If notice to quit
is not given, then a further week’s tenancy comes into being, and so on.

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 The length of notice depends on what sort of tenancy it is, e.g., a week’s notice for a weekly
tenancy, a month’s notice for a monthly tenancy, 6 months’ notice for a yearly tenancy. If the
premises are let as dwelling, then four weeks’ notice must be given.

The duration of the tenancy depends either on the terms of the tenancy or on the period for
which rent is to paid. So, a person paying weekly rent would have a weekly tenancy.

A person who holds over after the expiration of a fixed tenancy and pays rent which is
accepted as rent will have a new periodic tenancy created.

The following are not leases

a) Tenancies-at-will

Here, the tenant occupies the land with the landlord’s permission, but the tenancy may be
ended at any time by either party. Thus, there is no certainty over the duration of the
tenancy.

It may occur on holding over after a fixed lease has ended. If the landlord starts accepting
rent in relation to a fixed period, e.g., a week or month, however, then a periodic tenancy will
be created by implication. If either party dies, the tenancy-at-will ends.

b) Tenancies-at-sufferance

If a lease ends, and the tenant holds over without the landlord’s permission and without
the landlord accepting rent, then the tenant is a tenant-at-sufferance.

It is not a true tenancy and the landlord may take legal steps to remove the tenant at any time.

Note that: a leaseholder with a long lease at a low rent may seek the compulsory purchase of
his freehold reversion from the landlord or the grant of a new lease at a limited rent; tenants
may also be protected, under the law, from eviction or unreasonable increase in rent.

Termination of leases

A lease may be terminated in the following ways:

1. Notice

A lease may be terminated by giving a notice by either party, i.e., the landlord and
tenant. This notice to vacate premises can be given if there is a provision in the

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 agreement. Where no such provision is made then one can only give notice to expire
at the end of the period of the lease.

2. Expiry of Time

The lease is automatically terminated when the period of lease expires or a specific
event has occurred.

3. Forfeiture

The lessor has the right of forfeiture of lease if the lessee breaks any express
condition of the lease or he is declared bankrupt.

4. Frustration

A lease is frustrated if any material part of the property is wholly destroyed or

rendered substantially and becomes permanently unfit for the purposes of lease due
to fire, flood, etc. In such a case, the lease becomes void at the option of the lessee.

5. Merger

Merger occurs where the lease is merged in the greater estate.

6. Surrender

In surrender, the lessee gives back the possession to the lessor. Surrender may either
be express or implied. Express surrender is effected by a registered instrument of
surrender. Implied surrender can arise where the tenant vacates the premises with the
consent of the landlord.

RIGHTS OVER THE LAND OF ANOTHER

As with property generally, it is possible to create multiple simultaneous claims of ‘property’

in the same land. In this case concepts of entitlement by third parties are viewed as bundles
of power exercisable over the land of another. For example, if ‘X’ claims a freehold estate in
land, his claim would be compatible with ‘Y’s’ for a right of way – easement. If a neighbour
enjoys the benefit of some restrictive undertaking with regard to the user of the same land,
e.g., a promise that no flats shall be built on the land, the neighbour will be recognized as
having been allocated a different quantum of property in the land.

These rights over the land of another are distinguishable from such rights as leases or
mortgages since the later confer rights on the land itself, while the former confer rights
enforceable against the land of another, known as rights in alieno solo and constitute the

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 intangible rights associated with land. These rights include such rights as easements, profits,
licenses and restrictive covenants.

Easement

Section 3 of the RLA defines an easement as,

a right attached to a parcel of land (dominant tenement) which allows the proprietor of the
parcel either to use the land of another (servient tenement) in a particular manner or to
restrict its use to a particular extent, but does not include a profit.

The servient tenement is the land burdened by the easement, and the dominant tenement is
the land benefiting from the easement. The dominant and servient tenements must be owned
by different persons; otherwise, the landowner has rights of possession and ownership over
his own land.

Though easements can take many forms, the most common are rights of way, rights of
drainage, right of light, a right to take water, right of support, a right to place advertisements
and signboards, and rights to run cables and pipes under another’s land. In this regard
easements entitle the dominant owner to use the servient land in a particular way or, indeed
to prevent the owner of the servient land from using his own land in a particular way.
However, easements do not entitle the dominant owner to take away the soil or produce or
any other commodity independently capable of ownership as is the case concerning the right
of profit.

Characteristics of easements

The rule is that no right over land will be regarded as an easement unless it possesses the
following attributes:

1. There must be a dominant and servient tenement

This means that there must be two separate pieces of land; one which takes the benefit of the
right and one of which is subject to the burden of the right.

2. The right claimed must benefit the dominant tenement

It must be of benefit to the land as opposed to being of purely personal or commercial benefit
to the occupier. A useful test to determine whether or not this is so is to ask if the right would
make the land more valuable if sold.

3. The dominant and servient owners (or occupiers) must be different persons.

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 The owner of two lands can have no easement over one of them in respect of the other; when
he passes over one to the other, he is not exercising a right of way but is merely making use
of his own land to get from one part to another. A landlord can however claim an easement
over his tenant’s land and vice versa because diversity of ownership is sufficient.

4. The right must be capable of forming the subject matter of a grant

This means that its nature and extent must be clear, it must be capable of exact description,
the sphere of its operation must be precise and certain, the grantee must be a definite person
or body; and there must be a capable grantor.

Creation of easement

An easement can be created by any of the following methods:

a) By statute

Certain easements are created by statute and these can be found in local Acts of
Parliament e.g., Public Roads of Access Act (Cap 39).

b) By express grant

On the transfer of land an easement may be expressly granted by the transferor, or

expressly reserved by him to benefit land he has retained.

c) By implied grant

Easements not expressly mentioned may be implied to give effect to the intentions of the
parties if the land transferred is useless or less valuable without the easement. This would
include easements of necessity.

d) Presumed grant

If part of a piece of land is transferred the transferee will receive all the quasi-easements
which already exist over the retained land, providing they have been enjoyed
continuously without interruption before transfer, were obvious on inspection, were
necessary for the reasonable enjoyment of the land, and had been used by the transferor.
The quasi-easements would then become proper easements. (They were quasi-easements
because, before transfer, the transferor owned all the land and the rights were merely
normal rights of ownership.)

e) By section 62 Law of Property Act 1925 a conveyance of land passes all existing
easements to the transferee without the use of special words being used in the
conveyance.

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 Termination of easements

a) By statute

An Act of Parliament may enact law which will at the same time extinguish certain
easements e.g., if an Act was passed to build a nuclear reactor on a piece of land which
was subjected to easements, then these would be extinguished by the Act.

b) By release

Here the owner of the dominant tenement, either expressly or implied, releases the owner
of the servient tenement from being burdened by the easement.

If this is done expressly it must be done by writing in a deed. This would be the
appropriate method for a building developer who wishes to buy out the easements on his
land, in which case the dominant owner must execute a deed of release.

An implied release occurs where the dominant owner indicated by his behavior that he
regarded the easement as at an end. Merely stopping using the easement would not be
enough, unless it was for a long time, e.g., 20 years. Thus, the dominant owner should
show some intention to release the servient owner, e.g., by altering his land, so as to
make the exercise of the easement impossible, such as demolishing a house benefiting
from a right of light.

c) By merging ownership and possession of the dominant and servient tenements

As indicated earlier, there can be no easement unless there is a dominant and a servient
tenement. So, if one person acquires both pieces of land the easement must cease. It
should be noted, however, that it is the fee simple that must be owned of both pieces, and
not a mere lease.

d) Breach of an easement

If someone infringes an easement, this amounts to a nuisance and the dominant owner
may sue for damages, or more importantly for an injunction.

Technically, he could also use the remedy of abatement.

Profits

A profit is the right to enter another’s land and take from the land part of the produce or soil. The
important thing is that whatever is taken from the land must be capable of ownership. If one
takes something that is not capable of being owned then a profit would not arise.

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Profits include rights like fishing rights; grazing rights; right to collect firewood; limited mining
rights, etc. With regard to mining rights, one can only grant a profit with regard to common
minerals such as sand since the Mining Act places all minerals as belonging to the government.
Similarly, one can only claim to own fish that is in a private water body.

Licences

These are rights in another’s land without giving interest in the land. It is simply a permission to
the grantee to be on the land of another. Therefore, it merely grants permission to do something
on or affecting land which would otherwise constitute a trespass.

Restrictive Covenants

These are restrictions that may be placed on a person’s use of their land e.g., under planning or
environmental legislation, lease agreements or just agreement amongst neighbours. The
obligations are called covenants. They can take one of two forms: positive or negative.

Example: houses built in a neighbourhood could have restrictions placed on the owner for
example not to run a business in the house, not to build above a certain height or not to erect
aerials above the roof. These would constitute negative covenants. Other examples of covenants
may impose an obligation on a purchaser to do something and usually expend money. This could
be to maintain a fence or to clear ditches. These covenants are applicable and enforceable
amongst the neighbours by virtue of privity of contract. The problem arises where the original
covenantors and covenantees sell their land to third parties.

At common law the benefit of both positive and negative covenants passes to the successors in
title of the covenantee having an interest in land. However, for such covenants to be enforced
they must touch and concern the land of the covenantee, who must at the time of exacting the
covenant be an owner of land. The successors in title, assignees and other persons claiming land
under him or through those other successors in title and assignees will benefit from the covenant.
This is the doctrine of privity of estate.

The person who gives the covenant is called the covenantor. The covenantor is said to have the
burden of the covenant, because the covenant burdens the land. The person who receives the
covenant is termed the covenant covenantee; he has the benefit if the covenant is breached.

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