UNIVERSITY OF NAIROBI

UNIVERSITY EXAMINATIONS - 2022/2023

THIRD YEAR SEMESTER ONE EXAMINATIONS FOR THE DEGREE OF

BACHELOR OF LAWS

GPR 204: PROPERTY THEORY

DATE: 23 JANUARY 2023 TIME: 9.00AM –

12.00NOON

INSTRUCTIONS:

1. This is an open book exam.

2. Answer Question ONE and any other TWO questions

3. Answer sheets are provided in the Google Classroom Platform. However, if you cannot access
it, you are allowed to handwrite your answer, scan it and submit via the Google Classroom
Platform

4. Do NOT write your name anywhere on the answer booklet.

5. Write your Registration Number clearly on your answer sheet.

6. In answering the questions, remember that importance is attached to accuracy and clearness of
expression.

7. You should write and upload your work on the Google Classroom Platform within the time
allocated.

8. Email submissions are NOT permitted by the University rules and regulations on exams.

9. Late submission of the answer script will be disregarded

QUESTION ONE

“There are profound reasons why property rights have never been held in an exclusive vacuum.
People only need property because there are other people who might contest their control of
scarce resources. The institution of property mediates among property owners and would-be
interlopers. But property regimes quickly fall apart when people do not understand, respect and
tolerate the property claims of others.” Carole M Rose, Canons of Property Talk, Or,
Blackstone’s Anxiety, 108 Yale Law Journal, 631-632(1988).

In light of the above passage:

(a) Evaluate the importance and limitations of property as a theoretical concept according to the
discussion by Carole Rose in the excerpt above? (12 Marks)

(b) Demonstrate how property law addresses the limitations you have identified above? (6
marks)

(c) Analyze the relevance of the concepts of the Tragedy of the Commons and the Tragedy of
the Anti-commons to the above discussions by Carole Rose. ( 12 Marks)

Question Two

The maxim cujus est solum ejus est usque ad coelum et ad inferos is obsolete and has no
relevance in contemporary society. Discuss. ( 20 marks)
Question Three

Article 68(c) (i) of Kenya’s 2010 constitution requires parliament to enact legislation ‘to
prescribe minimum and maximum land holding acreages in respect of private land.’ According
to the Fifth Schedule, this legislation should have been enacted within 18 months of the
promulgation of the constitution, but twelve years on, this has not been done.

Using relevant sources, assess how the various theoretical justifications of property rights might
approach the question of desirability or non-desirability of legislation on this issue. [20 marks]

Question Four

“The debate over property in the "airwaves" is frequently muddied by dichotomizing the
alternatives of "public" and "private" property. Public property is a euphonious term that implies
that all of us acquire control over the airwaves, while private property sounds selfish. But public
property is a meaningless term. Ownership means that the owner has some control over the good
in question. If a resource is scarce, it cannot be controlled by everyone equally, no matter what
form of regulation we adopt.” Milton Mueller in Cato Institute Policy Analysis No. 11:
Property Rights In Radio Communication: The Key to the Reform of Telecommunications
Regulation

Critically analyze the accuracy of the above passage against the legal arrangements for spectrum
regulation in Kenya. (20 Marks).

Question Five

Dr Winfred Duto is the newly elected President of the Republic of Nyake, having won by a
landslide. One of her election promises was the construction of a 500km High-speed railroad
across the country within the first 100 days. A few days into the assumption of office, Dr Duto
calls a press conference to unveil the list of her government’s priority projects. The High-Speed
railroad is missing from the list. Upon follow-up by members of the fourth estate, she explains
that she had realized that it was impossible to construct the proposed railroad without
encroaching on private property and that as one who swore to uphold the bill of rights, she
cannot be seen to disrespect people’s right to property. Consequently, the High-Speed railroad
project was not going to be implemented.

As a student of property theory, examine the veracity of President Duto’s explanation. (20
Marks).