LAND LAW

Table of contents
List of figures……………………………………………………………………………………i
Page
Chapter 1 NATURE AND DESCRIPTION OF LAND
1.0 Introduction……………………………………………………………………………….1
1.2 The legal concept of land…………………………………….............................................1
1.3 Physical characteristic of land ……………………………………....................................2
1.4 Economical characteristics of land……………………………………………………….2
1.5 The colonial land question………………………………………………………………...2
Chapter 2 RIGHTS AND INTERESTS IN LAND
2.0 Introduction………………………………………………………………………………3
2.1 Estates in land……………………………………………………………………………3
2.2 Servitudes………………………………………………………………………………….5
2.3 Powers of use and abuse…………………………………………………………………8
2.4 Qualification to freedom of use………………………………………………………….8
2.5 Abuse and disposition…………………………………………………………………....9
2.6 Estoppels…………………………………………………………………………………10

2.5.1 Equitable Estoppel………………………………………………………………11

2.5.2 Legal Estoppel…………………………………………………………………...13

2.6 Government Rights in Land……………………………………………………………15

Chapter 3 FORMS OF LAND OWNERSHIP

3.0 Introduction………………………………………………………………………………17
3.1 Survey of property to be purchased……………………………………………………17
3.2 Business tenancy………………………………………………………………………..18

3.2.1 Sole ownership………………………………………………………………………….18

3.2.2 Concurrent ownership…………………………………………………………………..18
3.3 Rights of tenants and landlords…………………………………………………………..20
3.3.1 Rights of Tenants………………………………………………………………………...20
3.3.2 Rights of Landlord (Tenants Obligations)……………………………………………….20
3.4 Sectional Property Act………………………………………………………………….21

Chapter 4 CONVEYANCING AND TRANSFER OF TITLE

4.0 Procedure………………………………………………………………………………..23
4.1 Forms of conveyancing…………………………………………………………………25
4.2 Legislation on land and real estate……………………………………………………..27

4.2.1 Environmental law……………………………………………………………………….28

4.2.2 Environmental Management and coordination…………………………………………..29

4.2.3 The Environment and Land Court Act (2011)…………………………………………...32

4.2.4 Other Acts on Land………………………………………………………………………32

REFERENCES…………………………………………………………………………………..37
 CHAPTER ONE
NATURE AND DESCRIPTION OF LAND
4.0 Introduction

The Unit is designed to introduce students to the fundamental principles of land law .It builds
upon the study of concepts related to land since pre-colonial to the current system.
4.1 The legal concept of land

Jackson (1987) defines land as land covered with water, all matter growing on it together with
buildings and any other things permanently affixed to it. In his definition Jacobus (2003) asserts
that land is the surface of the earth, the sky above it and everything below to the center of the
earth. The above definitions are well illustrated by the figure below, clearly showing the three
rights of ownership in land i.e sub-surface, surface and air rights.

Air Rights

Surface rights

Sub surface rights

Figure 1 – Rights in land

The three rights can be owned by an individual entirely and can also be owned by
three(3) different parties i.e. the surface can be owned by one person, the subsurface can be
owned by another and the air be owned by another.
4.2 Physical characteristics of land

a) Land is immobile - land cannot be moved although sand soil gravel may move by action
of nature the land retains its geographical location.
b) It's indestructible – this means land is durable and this makes land a worthwhile
 investment
c) Non-homogeneous - no two parcels of land can be the same and cannot occupy the same
position on the globe.

4.3 Economical characteristics of land

a) Scarce - there is shortage of land and thus has a great demand .This also means that
excess supply of land in one area cannot meet the requirements of another area. The
market is restricted thus making supply inelastic
b) Modification - Can be modified or improved
c) Fixity - Fixed in terms of payment or return on investment. The land cannot be moved
from its present location of a lesser value to a location of a higher value for instance land
in Kamulu being moved to Runda.
d) Situs - Sites or location generally hinders the preferences of land in different locations
differs.
 CHAPTER TWO
RIGHTS AND INTERESTS IN LAND

5.0 Introduction
Interests recognized under law are; Estates, Servitudes and Encumbrances
5.1 Estates in land

These are interests in land capable of being created for a defined period of time. They are
quantifiable in terms of time scale i.e. interests for a given duration of time and are enjoyed in
one’s own land. Whereas estate is the legal interest in land, tenure of land on the other hand
means a set of conditions upon which an estate or interest in land may be owned. Types of
interests in common law are; Freehold, Leasehold and Customary estate
a) Free Hold

This is the greatest interest in land a person can have. It gives absolute ownership of the land. A
freehold title generally has no restriction as to the use or occupation but in practice there are
conditional freeholds which restrict the use say agriculture or ranching purposes only. They are
subdivided into;
 Freeholds of inheritance i.e. Fee-Simple estate and Fee-Tail estate

 Freeholds not of inheritance i.e. Life estate and Estate Per autre vie

i. Fee simple - This is the largest quantum or bundle that land owners can have. A fee
simple represents absolute ownership of land, and therefore the owner may do whatever
he or she chooses with the land. If an owner of a fee simple estate dies intestate, the land
will descend to the heirs.

ii. Fee tail - This is an estate in land subject to a restriction regarding inheritance.A fee tail is
an interest in real property that is ordinarily created with words such as "to A and the
heirs of his body." It may be limited in various ways, such as to male or female heirs
only, or to children produced by a particular spouse

iii. Life interest - This estate only lasts for the life time of the guarantee or interest holder.
 iv. Estates per autre vie - In this form of estate the ownership lasts for the life time of
another. Example if a property is given to A for the life of B, when B dies before A the
property then reverts to the settler and eventually B inherits nothing from the settler.

b) Lease Holds

These are interests in land that are limited in duration i.e. there are specific periods for which
they are meant to last and where such duration is not expressly stated or explained such durations
should be capable of being ascertained, currently limited to 99 years. It may be granted by a
freeholder usually subject to a fee payment or rent and subject to certain conditions to be
observed. They include:-
i. Fixed term estate

This is normally a lease held by an owner for a fixed period of time i.e. 99 years. It is guided
by certain conditions which may or may not be done in the continuing relationship of the parties.
ii. Periodic tenancy

This may be defined as tenancy from year to year or half year to half year. This tenancy is
characterized by the element of continuity .It does not end abruptly but there are steps to be taken
for this tenancy to end i.e. giving a notice.
iii. Tenancies at will

This tenancy is created by an express agreement. If there is no time fixation in the agreement
then the tenant may be evicted by the owner at any time, and this also applies to the tenant
terminating the agreement at will.
iv. Tenancy at sufferance

This is said to be the smallest estate known to law. It exists when one owns or possesses land by
lawful title but then keeps ownership without the title at all.
c) Customary estate

This applies in those areas not covered by registration where the applicable law is customary
law. Hence, it is presumed that this estate exists as a result of the state failure in not having all
the land brought under the registration system. Thus if a land based matter pertaining to certain
people’s rights was to arise in an area not registered the applicable law would be governed by the
customary estate of the particular community.
5.2 Servitudes
Can be defined as a device that ties rights and obligations to ownership or possession of
land so that they run with the land to successive owners and occupiers. Servitudes allow people
to create stable long-term arrangements for a wide variety of purposes, including shared land
uses; maintaining the character of a residential neighbourhood, commercial development, or
historic property; and financing infrastructure and common facilities.
The owner of property burdened by servitude cannot unilaterally terminate the servitude
or transfer the property free from the servitude without the consent of all the beneficiaries. Thus,
whether or not they expressly agree to its terms, subsequent owners and occupiers are bound to
follow the servitude. Servitudes arise out of agreements between owners and users but may also
be created by prescription (i.e., by open use of someone else’s property for a specified period of
time) or by eminent domain (i.e., government appropriation of private property for public use).
Agreements to create servitudes are subject to a statutory requirement which requires that they be
created by a written instrument.
Servitudes usually, but not always, involve two or more parcels of land, one of which is
burdened and the other benefited by the servitude. The burdened parcel is called the “servient
estate” and the benefited parcel the “dominant estate.” Benefits and burdens that run with the
land are “appurtenant” (i.e., they must be used for specific property) and cannot generally be
detached from the land with which they are associated.
-use arrangements implemented by servitudes range from simple driveway easements and
covenants prohibiting non-residential use of subdivision lots to complex declarations that
provide for the physical and governmental infrastructure, planned developments, or private
towns. In general, there are three basic types of servitudes: easements, covenants, and profits.
i. Easements
These allow the right to enter and use, for a specified purpose, land that is owned by another
(e.g., the right to install and maintain an electric power line over someone else’s land). This
essentially makes easements to be capable of being either positive where they allow use of
another’s land in a particular manner or negative where they introduce an element of restraint
and restrict an owner from using his land in a particular manner. Easements are commonly used
to provide for driveways, private roadways, parking, utility lines, irrigation ditches, and
pipelines. Historically, easements have been used to create rights-of-way for railroads, streets,
and highways, but more often full ownership interests are acquired for those kinds of facilities
ii. Restrictive covenants
These are often referred to as negative easements to the extent that they restrain the activities
of the registered proprietor as to what he can possibly do within his land. In the event the place
curves on the free exercise of the proprietor’s powers and freedoms in relation to his land, they in
effect introduce an element of curtailment of enjoyment of one’s rights in relation to his own
property and that restraint is intended to benefit all persons other than the proprietor himself.
Examples of covenants are agreements between owners of a parcel of land that they will pay
assessments to a homeowner’s association and agreements with an owner of a business on a
parcel of land that another parcel of land in the area will not be used by a competing business.
iii. Profits
Referred to under Section 3 of RLA which defines profits as a right to go on right of another,
to take a particular substance from that land whether it is the soil or products of the soil. Unlike
in easement, a profit entails the taking of something from another’s land, something capable of
ownership that is taken from the servient tenement. They give someone the right to enter and
remove natural resources (e.g., sand and gravel) from the land of another. In terms of creation,
profit may be created either by an express grant or by prescription. Where it is created by an
express grant the provisions of S. 96 of RLA the section provides that an owner of land may
grant a profit. In this case the instrument granting the profit must specify how the profit is to be
enjoyed, i.e. whether it is to be enjoyed alongside with the other similarly placed beneficiaries.
Prescription may also lead to acquisition of the profit just like in the case of easements and for
that to be effective it has to be formalised by way of registration in accordance with S. 96 (3) the
requirement of registration is mandatory unless the right was acquired before a first registration.
If acquired before a first registration, what happens is that it acquires or assumes the nature of an
overriding interest in terms of S. 30(e) of the RLA.

There are 3 ways in which a profit can be brought about:

 Unity of seisin which involves acquisition of ownership or the servient tenement by the
owner of the profit at which point the question of enjoying the profits ceases. Easements
and other rights of servient tenement for the benefit of a dominant tenement are
 extinguished if both tenements come into the same ownership). Where profit is pertinent
to land it terminates through unity of both tenements
 Release that is duly executed and evidenced in writing;
 Alteration of the dominant tenement in such a way that it cannot support the exercise of
such a right so the alteration must be such that it alters the nature the dominant tenement
and is completely overhauled and there is a presumption that any right that existed must
be distinguished.

d) Mortgages

“the transfer of an interest in specific immovable property for the purposes of securing of
the payment of money advanced or to be advanced by way of loan, an existing or future
debt, or the performance of an agreement which may give rise to financial liability”, section
58 (a) of Indian Transfer of Property Act of 1882. Thus mortgages in Kenya under the old
land law regime applied to transactions under the Indian Transfer of property Act. In this
interest there is a temporary transfer of interest to the financial institution
e) Charges

In the previous land law regime they were applied as per the Registered Lands Act cap 300.
Section 3 of the Act defined a charge as “an interest in land securing the payment of
money’s worth on the fulfillment of any condition and includes sub charge instruments
creating a charge.” Unlike mortgage it does not transfer interests in land from borrower to
the lender but operates only as a security.
5.3 Powers of use and disposition

The fee simple also known as absolute proprietorship is said to be unlimited in scope and that the
holder has unlimited powers of use, abuse and disposition. Restrictions on these rights come
about through a number of statutory qualifications. These restrictions basically relate to the
landowner’s activities on his/her land. The restrictions also are applied equally to leaseholds.
Jackson (1987) defines abuse as waste. There are three types of waste namely;
Viz ameliorating – this involves a change of system of husbandry which has the effect of
enhancing the value of the land. Thus this waste generally destroys the owner’s evidence of title.
Permissive waste – this is an omission whereby a building or buildings are allowed to fall in a
state of decay.
Voluntary waste – this is a wrong of commission of a positive act of injury to the property. It
may involve pulling down or altering houses charging the course of husbandly, opening pits or
mines cutting down timber etc.
5.4 Qualification to freedom of use

Section 115 of the Health Act (cap 242) provides ‘No person shall cause a nuisance or shall
suffer to exist on any land or premises owned or occupied by Him or of which he is in charge
any nuisance or other condition liable to be injurious or dangerous to health’.
The objective of the act is to prevent injury to health. Section 118 states that nuisance includes
any animals or things so kept on the land as to be dangerous or injurious to health. Prevention of
accumulation of direct filth or refuse on and that can cause or be hazardous to health.
Section 119 – empowers medical officer to serve the owner and engage him in the removal of the
nuisance.
Section 120 and 121 of the owner does not adhere to the removal of the nuisance then he is liable
to pay a fine.
The land planning Act (cap 303) deals with the control of development of urban land.
Section 10 prohibits any development of the land without consent from the central authority.
Section 3 defines development as erection of buildings, the making of any material changes in
the use of any buildings or land sub-divisions or advertisement of land. If this is done
unauthorized then through a notice the planning authority can take steps to stop it; alter it or even
demolish.
A fine or imprisonment also can be served to the owner.
The Agriculture Act (cap 318) – this gives the minister of Agriculture wide powers in connection
with land. Section 48 gives him/her powers to make rules on preservation of land. In summary
he/she can;
a) Make preservation orders
b) Land development orders
c) Land management orders
5.5 Abuse and disposition

Under the land control Act (cap 302) before any dealing in Agricultural land (with subject to a
few exceptions) consent to transactions must be obtained from appropriate land control board.
Caveats (Caution under R.L.A) inhibitions, prohibitions and Restriction are three types of
Restraint that can prevent an owner from disposing off land.
a) Caution – any person claiming a contractual or other right over land amounting to a
defined interest capable of creation by a registrable instrument i.e. a lease holder may
lodge a caution with the registrar against any dealings that is inconsistent with the
interest. And in caution if one lodges a caution without reasonable cause is liable to pay
remedy in damages.
b) Inhibition – it is a court order preventing for a time or until the occurrence of an event to
be named in such order or until the making of a further order, the registration of any
dealing with the land.
c) Restriction – is imposed by the registrar, either on his own motion or on the application
of any interested person. Normally imposed for the prevention of any fraud or improper
dealings in land or for any other sufficient use.
Under the R.T.A and R.L.A it is used to protect the government interest in land.

Requirements relating to disposition

i. Capacity to dispose of or acquire an interest in land. Any person of sound mind can hold
and dispose an interest in land. In the case of an infant, can hold an interest in land but
has no power in disposition the registrar in this case can put a restriction. A committee or
guide would be used to deal with the property. For mentally handicapped person the high
court takes the mandate.

ii. Must be in writing – through its memorandum and its contents. This adopts the doctrine
of past performance under section 3(3) of the law of contract Act (cap 23). Every contract
for the disposition an interest in land must be a general rule be evidenced in writing.

iii. Execution of the documents and attestation of signatures, verification execution, powers
of Attorney.
 iv. Registration - Recording interests in land for ease of conveyancing.

2.6 ESTOPPELS

An estoppel is legal principle that bars a party from denying or alleging a certain fact
owing to that party's previous conduct, allegation, or denial.

Estoppel is a bar or impediment (obstruction) which precludes a person from asserting a fact or a
right, or prevents one from denying a fact. Such a hindrance is due to a person's actions, conduct,
statements, admissions, failure to act, or judgment against the person in an identical legal case.
Estoppel includes being barred by false representation or concealment (equitable estoppel),
failure to take legal action until the other party is prejudiced by the delay (estoppel by laches),
and a court ruling against the party on the same matter in a different case (collateral estoppel).
An estoppel is, when a man is concluded by his own act or acceptance, to say the truth.
An example of an estoppel by matter in pays occurs when one man has accepted rent of another.
He will be estopped from afterwards denying, in any action, with that person, that he was, at the
time of such acceptance, his tenant.
Every estoppel ought to be reciprocal, that is, to bind both parties: and this is the reason
that regularly a stranger shall neither take advantage or be bound by an estoppel. It should be
directly affirmative, and not by inference nor against an estoppels

The rationale behind estoppel is to prevent injustice owing to inconsistency or Fraud.

There are two general types of estoppel: equitable and legal.

2.6.1 Equitable Estoppel

Equitable Estoppel, sometimes known as estoppel in pais, protects one party from being
harmed by another party's voluntary conduct. Voluntary conduct may be an action, silence,
acquiescence, or concealment of material facts. One example of equitable estoppel due to a
party's acquiescence is found in the case law:

Lambertini v. Lambertini, In the late 1950s, Olga, who was married to another man, and
Frank Lambertini met and began living together in Argentina. Olga and Frank hired an attorney
in Buenos Aires, who purported to divorce Olga from her first husband and marry her to Frank
pursuant to Mexican law. The Lambertinis began what they thought was a married life together,
and soon produced two children. In 1968, they moved to the United States and became Florida
residents.

In 1992, Olga sought a divorce from Frank. She petitioned the Florida court for sole
possession of the marital home and temporary alimony, which the court granted. Frank sought a
rehearing, arguing that the Mexican marriage was not a valid legal marriage and was therefore
void. Though Frank won with this argument in the trial court, the appellate court reversed,
holding that Frank was equitably estopped from arguing that the Mexican marriage was invalid.
According to the appellate court, Frank and Olga had held themselves out as a married couple for
more than 30 years, lived together, raised two children, and owned property jointly. Both Frank
and Olga apparently believed all along that the Mexican marriage was legal, and it was only
when Olga filed for divorce that Frank discovered and chose to rely on its invalidity. The
appellate court granted Olga her divorce, the house, and the temporary alimony. Frank's
acquiescence for three decades—holding him out as being married to Olga—prevented him from
denying the marriage's existence.

There are several specific types of equitable estoppels:

Promissory estoppel is a contract law doctrine. It occurs when a party reasonably relies
on the promise of another party, and because of the reliance is injured or damaged. For example,
suppose a restaurant agrees to pay a bakery to make 50 pies. The bakery has only two
employees. It takes them two days to make the pies, and they are unable to bake or sell anything
else during that time. Then, the restaurant decides not to buy the pies, leaving the bakery with
many more pies than it can sell and a loss of profit from the time spent baking them. A court will
likely apply the promissory Estoppel doctrine and require the restaurant to fulfil its promise and
pay for the pies.

An estoppel certificate is a written declaration signed by a party who attests, for the
benefit of another party, to the accuracy of certain facts described in the declaration. The
estoppel certificate prevents the party who signs it from later challenging the validity of those
facts. This type of document is perhaps most common in the context of mortgages, or home
loans. If one bank seeks to purchase mortgages owned by another bank, the purchasing bank may
request the borrowers, or homeowners, to sign an estoppel certificate establishing:

(1) That the mortgage is valid,

(2) The amount of principal and interest due as of the date of the certificate, and

(3) That no defences exist that would affect the value of the mortgage. After signing this
certificate, the borrower cannot dispute those facts.

Estoppel by laches - precludes a party from bringing an action when the party knowingly
failed to claim or enforce a legal right at the proper time. This doctrine is closely related to the
concept of STATUTES OF LIMITATIONS, except that statutes of limitations set specific time limits
for legal actions, whereas under Laches, generally there is no prescribed time that courts consider
"proper." A defendant seeking the protection of laches must demonstrate that the plaintiff's
inaction, Misrepresentation, or silence prejudiced the defendant or induced the defendant to
change positions for the worse.

Court applied the doctrine of laches in People v. Heirens. William Heirens pleaded
guilty, in 1946, to three murders, for which he received three consecutive life terms in prison.
Heirens sought court relief numerous times in the ensuing years. In 1989, 43 years after his
conviction, Heirens filed his second postconviction petition seeking, among other things, relief
from his prison sentence due to ineffective counsel and the denial of DUE PROCESS at the time of
his arrest. The court found that all the witnesses and attorneys involved in Heirens's case had
since died. Laches precluded Heirens from bringing his action because, according to the court, it
would be "difficult to imagine a case where the facts are more remote and where the state might
be more prejudiced by the passage of time."

2.6.2 LEGAL ESTOPPEL

Legal estoppel consists of estoppel by deed and estoppel by record. Under the doctrine
of estoppel by deed, a party to a property deed is precluded from asserting, as against another
party to the deed, any right or title in derogation of the deed, or from denying the truth of any
material fact asserted in the deed. For example, suppose a father conveys a plot of land to his son
by deed. Unbeknownst to the son, the father actually does not own the plot of land at the time of
the conveyance; the father acquires title to the property only after the conveyance. Technically,
the son is not the legal owner of the property because his father did not own and did not have the
right to transfer the real estate at the time of the conveyance. But under the doctrine of estoppel
by deed, the court may "make good" the imperfection of the poorly timed conveyance by finding
the son to be the rightful owner of the plot of land.

The doctrine of estoppel by record precludes a party from denying the issues adjudicated
by a court of competent jurisdiction (Collateral Estoppel) or any matter spelled out in a judicial
record (judicial estoppel).

Collateral estoppel, sometimes known as estoppel by judgment, prevents the re-

argument of a factual or legal issue that has already been determined by a valid judgment in a
prior case involving the same parties. For example, suppose Ms Jones, who owns a business next
to Mr Smith's, sues Mr Smith for damage to her property caused by the digging of a hole. Mr
Smith defends by arguing that the hole is on his land. After considering all the evidence, the
court determines that Mr Smith owns the land. Later that year, after a late night at work, Mr
Smith cuts across the back lot, falls into the hole, and is injured. He then sues Ms Jones for
negligent maintenance of her property. In this situation, the court will apply collateral estoppel,
preventing Mr Smith from re-litigating an issue that was already decided between the same
parties in the prior proceeding.

The related doctrine of judicial estoppel binds a party to his or her judicial declarations,
such as allegations contained in a lawsuit complaint or testimony given under oath at a previous
trial. Judicial estoppel protects courts from litigants' using opposing theories in the attempt to
prevail twice. For instance, a tenant trying to avoid liability to a property owner may not, in the
tenant's Bankruptcy case, successfully represent to a court that the property agreement is a lease
and then later, when the property owner sues for non-payment of rent, declare that the agreement
is a mortgage rather than a lease.
CRABB V. ARUN District Council 1976

The plaintiff owned a piece of land which had access at point A on to a road owned by
the defendants. And the Plaintiff also had a right of way from that point A along this road. To
enable him to sell his land in two parts, the plaintiff sought from the defendant a second access
point and he also wanted a further right of way from point B. at a site meeting held between the
plaintiff, his architect and a representative of the Defendant, the additional point B was agreed
to. Subsequently the defendants fenced the boundary between their road and the plaintiff’s land
erecting gates at B and A. After the Plaintiff sold part of his land together with the right of
access at A and also going with the right of way onto the road, the defendants removed the gates
at B and fenced the gaps. Essentially that blocked the links between A and B the Plaintiff sued
for a declaration and injunction claiming that the Defendants were estopped by their conduct
from denying him a right of access at B and a right of way along the road. The trial court held
that in the absence of a definite assurance by the defendant no questions of estoppel could
arise. There were no assurances that he would forever have the right of way at B. Consequently
the plaintiff’s action was dismissed. On Appeal by the plaintiff, it was held that
1. The defendants knowing the plaintiff’s intention to sell his land in separate portions by
their representations led the Plaintiff to believe that he would be granted a right of access
at B and by erecting the gate and failing to disabuse him of his belief encouraged the
plaintiff to act to his detriment.
2. Equity should be satisfied by granting the plaintiff a right of access at B and a right of
way along the road.
3. In view of the sterilization of the plaintiff’s land for a considerable period resulting from
the Defendant’s acts, the right should be granted without any payment by the Plaintiff.

2.6 GOVERNMENT RIGHTS IN LAND

In Kenya under the customary law, ownership of land was vested in the community as a
whole.
Every member of the community had access to the land and they regarded land as a gift from
God to all mankind. During the colonial era, there was practice of racial segregation where
European settlers got large reservations of land, smaller tracts for Asians and very small tracts
for Africans. During this time, the land was governed through the Crown Land Ordinance
(C.L.O)
This governing was adopted from the European way where the feudal system and allodial
use of land which was providing services and general land administration. Consequently though
land could be owned by an individual, it was necessary for the government to retain certain
rights on the land. These rights are:
A. Property taxes - this basically means that proceeds from the land were apportioned to
the king or the government. These taxes helped to support the government and also increase the
government revenue.
B. Eminent Domain - This means that the government is able to take up land
individually owned for public use and improvement. Acquiring this land is done through legal
process called Condemnation where the owner is paid a fair market price for the land that is
taken up. There must be a public agent from the government who engages the owner of the land
in taking up the land, and if they do not agree then the matter is taken to a court of law.
Severance damages are paid upon when there is only a portion of land being taken while still the
owner gets compensation for the land taken. At times an owner might force certain authorities to
buy their land. Example land close to Airports may be sold back to the authorities and this is
referred to as Inverse Condemnation. When there is condemnation of land next to an owner B
and there is resultant improvement on the land that reduces the value of owner B's land then
consequential damages are paid.
C. Police Power – These are basically government enacted laws to ensure there is order,
safety health and general welfare of the citizens. This includes zoning laws, planning laws,
building laws health and safety.
D. Escheat -This basically means land reverting back to ownership by the government
when a person dies and there are no heirs to the property. This also applies when the property has
been abandoned for a long time.
 CHAPTER THREE
FORMS OF LAND OWNERSHIP

6.0 Introduction
The Constitution of Kenya (2010) in article 40 protects one’s right to access and
ownership of private property in any part of Kenya, Section 3 allows for compulsory acquisition
of private land for public interest. Article 43 section 1(b) of the constitution provides that every
person is entitled to ‘accessible and adequate housing’ inherent in this right is provision of secure
land tenure. In owning land, one obtains the right of disposition and also the right to use the land.
Similarly, you have a right to do with the land as you please e.g. build on it, rent it, lease it to
others or sell it subject to the restrictions imposed by law.

6.1 Survey of property to be purchased

The process starts by first identifying the piece of land one wishes to purchase. This is essential
for a potential buyer because he/she gets to physically establish the location of the parcel, the
beacons on the plot boundaries as well as the owner/seller. Similarly the purchaser gets to see
what fixtures exist on the parcel of land. When satisfied, an official search must then be
conducted to ideally confirm:

a. The person selling the land to you is the legal owner.

b. Whether the land has encumbrances that may include a charge by the bank, a caveat
restricting sale of the land amongst other issues.

The search should be conducted at the District Lands Office or the Ministry of Lands (Ardhi
House) depending on whether the Title Deed of the subject land is registered under the Land
Registration Act (LRA) or Registration of Titles Act (RTA) respectively. To conduct a search,
one is required to produce a copy of the title deed of the land and fill the search application form
and attach the title. In most District Land Offices, copies of your ID and Pin Certificate are
required. You shall be required to pay a fee for the process. If the search result is positive, obtain
Rates Clearance Certificate from the Local Municipal Council or Land Rent Clearance
Certificate from the Commissioner of Lands. At this point, the purchaser is advised to engage
your lawyer for a sales agreement and other terms.

6.2 Business tenancies

6.2.1 Sole ownership

This is a form of ownership where the title to a property is held by one person. The main
advantage of this form of ownership is flexibility, where the owner makes decisions regarding
the property (e.g., what to buy, when to buy, how much to offer, how to pay) without having to
get agreements of co-owners. The high cost of entry is the major disadvantage of this form of
ownership.

6.2.2 Concurrent ownership

a) Tenants in common

This form of ownership takes place when two or more persons wish to share ownership of a
property. As tenants in common, they each own an undivided interest in the whole property i.e,
each owner has a right to possession of the entire property. It can be illustrated as follows:

Person A, B and C jointly purchase 100 acres of land having contribute kshs 250,000/=,
300,000/= and 450,000/= respectively. The ownership of the property will therefore be in the
ratio of 25%, 30% and 45% for A, B and C respectively. Person A cannot pick out 25 acres
excluding B and C from it and sell the portion to someone else! However, person A has a
legal right to sell/dispose his interest without permission from B and C, and the purchaser
becomes a new tenant in common with B and C.

Important to note, in this form of ownership, there’s no right of survivorship i.e. when a co-
owner dies, his interest passes to his heirs.
b) Joint tenancy

This is another form of ownership where two or more persons share ownership of a property.
The most distinguishing characteristic is the right of survivorship where upon the death of a co-
owner, his interest does not descend to his heirs, rather the entire ownership remains in the
surviving joint tenant(s). However, for a joint tenancy to be created, the four unities must be
present i.e:

 Unity of time – acquisition of ownership is done at the same time

 Unity of title – the joint tenants acquire their interest from the same title
 Unity of interest – the joint tenants own one interest together and each joint tenant has
exactly the same right in that interest
 Unity of possession – the joint tenants must enjoy the same undivided possession of the
whole property

c) Tenancy by entirety

This is a form of joint tenancy specifically for married persons. It’s based on the legal concept
that a husband and a wife are an indivisible unit. All the four unities are present, but with one
additional i.e. unity of person. In this case,

 The surviving spouse becomes the sole owner upon the death of the other
 Neither spouse has a disposable interest in the property during the lifetime of the other.
While both are alive and married, both signatures are required to convey title to the
property.

In the event of divorce, the parting spouses become tenants in common automatically.

d) Partnership

This exists when two or more persons as partners unite their property, labour and skills as a
business to share the profits and losses created by it. In large partnerships, two or more partners
are designated by the group to make contracts and sign documents on their behalf.
6.3 Rights of tenants and landlords

3.3.1 Rights of Tenants

i. Quiet Enjoyment
The tenant is guaranteed by the landlord a peaceful enjoyment of the premises as long as the
tenant pays rent and meets other obligations under the agreement.
According to Jackson (1987) ‘quiet’ does not mean absence of noise, this involves the freedom
to enjoy property without disturbance or interruption. A landlord may be in breach of this
covenant if for instance he removes door and windows in order to get rid of the tenant or if he
disconnects the electricity.

ii. Non – Derogation from Grant

The landlord shall not permit the use of adjacent or neighboring property that will
make it difficult to use that he has granted.
iii. Fitness for habitation
The landlord shall ensure that the property is fit for habitation. This shall be done from
the commencement of the lease.
iv. Duty to repair
There is no implied obligation by a landlord to repair leased premises. The only
exception to this rule is in RLA in cases where part only of the a building is leased
v. Duty to disclose Material defect
The landlord is under obligation to disclose any material defect in the property within his
knowledge

3.3.2 Rights of Landlord (Tenants Obligations)

i. Obligation to Rent
A tenant continues to pay rent even when an occurrence makes it unfit for the purpose for
which it was let. Rent is payable in advance or in arrears.
 ii. Obligation to pay rates and taxes
There is an implied obligation that the tenant will pay for rates other than those to be paid
by the landlord
iii. Age of the house
The tenant’s obligation is not to bring the house up to date but to keep it in a reasonably
good condition for a building of that age.
Character of the house
The standard of repairs varies with the nature of the house.
Locality
The kind of repair for a house in a high class area differs from that in a low class area
iv. Obligation to repair or replace furniture
Under section 54(e), R.L.A., where the premises are let furnished, the tenant has to keep
furniture in good condition as at the commencement of the lease. Articles lost, destroyed
or damaged must be replaced.

v. Covenant against transferring, charging or subletting

The tenant consents that he shall not transfer, charge, sublet or otherwise part with
With the possession or any part of the leased premises without written consent of lessor.
The consent shall not be withheld unreasonably
The landlord may withhold consent in the following instances:-
 Where transferred property may be used for detrimental or competitive purposes
 Where the rent in the sublease is below that obtainable in the open market
 Where the object of the parties is that the transferee will acquire a protected or
statutory tenancy.

6.4 Sectional Property Act

This act envisages that a proprietor can own a unit within a building without necessarily owning
the whole building and it provides for the registration of the unit owned, subject to the rights of
others with interest in the same building. This means that, the proprietor shares with the fellow
owners the title, and shares the cost of maintenance of the commonly owned parts of the
development. This Act is applicable only in situations where the unexpired residue of the term is
not less than 45 years.
The Act provides that any property embracing the provisions of the Act will be deemed to be
registered under the Registered Land Act, cap 300; with the RLA being repealed how will
already registered sectional properties be handled?
 CHAPTER FOUR
CONVEYANCING AND TRANSFER OF TITLE

4.0 Procedure

Conveyancing is the area of an Advocate’s business that deals with the alienation of an interest
in land from one person to another.
Convey is the act of alienation of an interest by means of an appropriate instrument or document.
Conveyance is an instrument transferring an interest in land from one person to
another. Examples of conveyances are:
 Mortgage or Charge
 Transfer
 Lease
Land Law gives us the principles that define rights and interests in land and has been referred to
as “Law at Rest”. Conveyancing on the other hand deals with procedure or the practical legal
mechanisms by which those rights and interests are transferred from one person to another. It is
“Law in Motion”
Conveyancing law and the law of contract: interests in land give rise to contractual obligations
e.g. a lease, mortgage or charge.

The law of equity is also relevant to Conveyancing law and practice in so far as equitable rights
and remedies are concerned. The remedies include specific performance, injunctions,
rectification and rescission. If one has made an error in an instrument and that instrument has
been registered, in order to rectify the error, rectification is needed to remedy the error. It
becomes necessary to have the instrument of rectification. Specific performance applies where
there is a seller who has entered in agreement with a person to sell land to one person and then
goes and signs another agreement with another purchaser for more money. If the first purchaser
discovers, he can go to court to seek an order for specific performance, asking the court to
compel the seller to transfer the land to the first purchaser under the agreement for sale.

Some understanding of the law of succession is also necessary in dealing with transactions
involving personal representatives. The law operates to make it possible to transfer land
(transmission) to the beneficiaries. Conveyancing tells us what documents we need to draft in
order to vest the interests of the deceased to the beneficiaries.

Knowledge of company law is equally important in dealing with companies involved in

conveyancing transactions.

The scope of conveyancing covers the various procedures for certain land transactions. It deals
with practical issues such as how one negotiates and concludes a lease, mortgage, charge,
transfer or other transaction and how the relationship between the parties to the transaction is
determined.
Conveyancing therefore deals with the various stages of a transaction. These include:
 Preliminaries – Introductions where a buyer in need of property meets up a seller in need
of disposing his property.
 Investigation of title e.g. searches and examination of documents of title: (Attaching a
copy of official search, registered title and title deed.)
 Documentation- this is the legal framing of documents. It is the art of drafting.
(Attaching copies of letter of offer and sale agreement as examples)
 Contractual stage – this stage involves negotiation of terms i.e. rent or sale price and
mode of payment – frequency, whether one off or in installments etc.
 Completion stage - this is the stage where documentation is complete and what remains is
to take the documents for registration. If it is a transfer for example the seller’s advocate
should now give all the documents signed to enable the buyer’s advocates to go and
register the documents, the buyer’s advocate should now pay the buyer’s purchase price.
This involves: Execution, attestation, stamping and registration of documents.
Conveyancing also involves the construction or interpretation of documents. For example in a
lease keeping the premises in good state of repair may mean painting the house, replace locks
and so on. This is part of the covenant to repair. It is about construing the covenant to repair.
Conveyancing may also involve litigation, e.g. where a transaction fails and parties resort to the
court process for determination and enforcement of their rights.
4.3 Forms of conveyancing
 The Registered Land Act (R.L.A) states that …” a proprietor may transfer his land, lease or
charge to any person (including himself), with or without consideration by an instrument in the
prescribed form.” Jacobus (2003) reaffirms that transfer of land ownership must be in writing
and signed for it to be enforceable in a court of law. The transfer is only considered completed
when the transferee is registered as the proprietor of the land, lease or charge. A clearance
certificate must be issued by the local authority in whose jurisdiction the land falls showing that
all rates and rent due are fully paid. For leasehold properties RLA states that no instruments for
transfer shall be registered unless with a written statement from the authority confirming that all
rates and other charges payable to it for the last twelve years have been paid. For freehold
properties, the Registrar shall not register any instruments to create interest in land unless a
certificate is produced justifying that no rent is owing to the government in respect of the land.
When the property being transferred is charged RLA states that....” the transferee may
require the charger to execute the transfer for the purpose of acknowledging the amount due
under the charge at the date of execution of the transfer”. Note, no part of land comprised in a
register shall be transferred unless the proprietor subdivides the land first and a new register
opened in respect of each subdivision.
Once the instruments are signed and delivered, the transfer takes effect immediately. The transfer
can be carried out through the following means:-
a) By Deed

Jacobus (2003) observes that a transfer can be done through a deed, which is a written legal
document by which ownership of real property is conveyed form one party to another. Once
executed, the ownership is permanent and the transferer cannot change his/her mind to get back
the ownership. The essentials of a deed may include:
 Must identify the grantor(one giving up ownership) and the grantee(one acquiring
ownership)
 Must state that the consideration was given by the grantee to the grantor
 Must contain words of conveyance i.e the grantor must state that he/she is transferring
ownership of a particular quantity of estate to the grantee
 The land description
 Signature
 b) Conveyance after death

A person who dies leaving behind a valid will is said to have died testate. In this circumstance,
the disposal of the deceased’s assets is done in accordance with the will. When a will exists but
no one is named in it, a personal representative is registered as a proprietor. The personal
representative must provide evidence of appointment in the form of a certified letter of
administration. It is imperative to note that since he is a personal representative, the register must
capture the words “..as the executor of the will of the deceased..”
When one dies without leaving a will he/she is said to have died intestate and in such situations,
the state directs how the deceased’s assets are distributed (Jacobus, 2003).
c) Adverse possession

Jacobus (2003) defines adverse possession as a method of acquiring land ownership through
unauthorized possession of land for a specified period of time under certain conditions. If the
duration set elapses without the owner asserting his right, he is not only debarred from
maintaining an action to recover the land but is also divested of certain rights over the land as
well (Jackson, 1987). Jacobus (2003) however reiterates that the claimant must have maintained
an actual, visible, continuous, hostile and exclusive possession and be publicly claiming
ownership to the property. In Kenya however, the Limitations of Actions Act (cited in Jackson
1987) prohibits acquisition of any Government land and Trust land through this process.
d) Easement by prescription

An easement can also be acquired by prolonged adverse use. The usage must be openly visible,
continuous, exclusive as well as hostile and adverse to the owner exceeding the duration set.
Similarly, the Limitations of Actions Act (cited in Jackson 1987) prohibits acquisition of any
Government land and Trust land through this process.
e) Public grant

This is the transfer of land by a government body to a private entity (Jacobus, 2003)
f) Dedication

This arises when the owner makes a voluntary gift for use of land to the public. Please note that
the title is not transferred, the parcel is only dedicated to use for the benefit of the public. This
manifests itself clearly, when a developer acquires a large parcel of land, subdivides into plots
and roads. The plots are sold off, but what happens to the roads?
g) Alienation

A change in ownership of any kind is known as an alienation of title. It could result from a court
order or from the proprietor himself.
h) Compulsory acquisition

The right to own property is one of the fundamental rights under the constitution. Jackson (2003)
observes that no property of any description shall be compulsorily taken possession of or
compulsorily acquired unless:
 The property is required for the public benefit
 On balance, the public benefit justifies the private hardship of an individual losing his
property.

4.4 Legislation on land and real estate

There are several pieces of legislation on real estate and land, most of which were inherited from
the colonial government and others enacted after independence. Below is a list of only but a
few:-

4.4.1 Environmental law

LEGAL FRAMEWORK: Constitution of Kenya 2010 (Chapter five (5) part – 2), Environmental
Management and Co-ordination Act No. 8 of 1999, The Environment and Land Court Act 2011.
CONSTITUTION OF KENYA 2010 (Supreme Law of the Land):
Chapter 5 part 2 on Environment and Natural resources 69 (1) provides that:
 The state shall ensure sustainable exploitation, utilization, management and conservation
of the environment and natural resources, and ensure the equitable sharing of the accruing
benefits;
 Establish systems of Environmental Impact assessment, Environmental audit and
monitoring of the Environment;
 Eliminate processes and activities that are likely to endanger the environment;
Chapter 5 part 2 on Environment and Natural resources 69 (2) provides that: each person has a
duty to cooperate with state organs and other persons to protect and conserve the environment
and ensure ecologically sustainable development and use of natural resources.
Chapter 5 part 2 on Environment and Natural resources 70 (1) provides that: if a person alleges
that a right to a clean and healthy environment has been, is being or is likely to be denied,
violated, infringed or threatened, the person may apply to a court for redress in addition to any
other remedies that are available in respect to the same matter.
70 (2) states that the court may make any order, or give any direction it considers appropriate:
a. To prevent, stop or discontinue any act or omission that is harmful to the environment;
b. To compel any public officer to take measures to prevent or discontinue any act or
omission that is harmful to the environment;
c. To provide compensation for any victim of a violation of the right to a clean and healthy
environment.

70 (3) states that an applicant for redress in court does not have to demonstrate that any person
has incurred loss or suffered any injury.
4.2.2 Environmental Management and Co-ordination Act (1999)
An Act of Parliament to provide for the establishment of an appropriate legal and institutional
framework for the management of the environment and for the matters connected therewith and
incidental thereto.
The act recognizes that the environment constitutes the foundation for national economic, social,
cultural and spiritual advancement thus the need to regulate its use and exploitation given the
diverse sectoral initiatives.
Part 11 of the act on general principles provides:
 Every person in Kenya is entitled to a clean and healthy environment and has the duty to
safeguard and enhance the environment;

 If a person alleges that the entitlement conferred under the act has been, is being or is
likely to be contravened in relation to him, then without prejudice to any other action
with respect to the same matter which is lawfully available, that person may apply to the
High Court for redress and the High Court may take such orders, issue such writs or give
such directions as it may deem appropriate to –
 a. prevent, stop or discontinue any act or omission deleterious to the environment;
b. compel any public officer to take measures to prevent or discontinue any act or
omission deleterious to the environment;
c. require that any on-going activity be subjected to an environment audit in
accordance with the provisions of this Act;
d. compel the persons responsible for the environmental degradation to restore the
degraded environment as far as practicable to its immediate condition prior to the
damage; and
e. provide compensation for any victims of pollution and the cost of beneficial uses
lost as a result of an act of pollution and other losses that are connected with or
incidental to the foregoing.

A person seeking redress in court shall have the capacity to bring an action notwithstanding that
such a person cannot show that the defendant’s act or omission has caused or is likely to cause
him any personal loss or injury provided that such action –
 Is not frivolous or vexatious;
 Is not an abuse of the court process?
The act further provides principles of sustainable development to be applied by the High Court
as follows:
 The principle of public participation in the development of policies, plans and processes for
the management of the environment;
 The cultural and social principle traditionally applied by any community in Kenya for the
management of the environment or natural resources in so far as the same are relevant and
are not repugnant to justice and morality or inconsistent with any written law;
 The principle of international co-operation in the management of environmental resources
shared by two or more states;
 The principles of intergenerational and intra-generational equity;
 The polluter-pays principle; and
 The pre-cautionary principle.
 PART V Section 42. (1):
States that no person shall, without prior written approval given after an environmental impact
assessment, in relation to a river, lake or wetland in Kenya, carry out any of the following
activities –
a. Erect, reconstruct, place, alter, extend, remove or demolish any structure or part of any
structure in, or under the river, lake or wetland;
b. Excavate, drill, tunnel or disturb the river, lake or wetland;
c. Introduce any animal whether alien or indigenous in a lake, river or wetland;
d. Introduce or plant any part of a plant specimen, whether alien or indigenous, dead or alive,
in any river, lake or wetland;
e. Deposit any substance in a lake, river or wetland or in, on, or under its bed, if that substance
would or is likely to have adverse environmental effects on the river, lake or wetland;
f. Direct or block any river, lake or wetland from its natural and normal course; or
g. Drain any lake, river or wetland.

Part VI of the act provides: The proponent of a project shall undertake or cause to be undertaken
at his own expense an Environmental Impact Assessment study and prepare a report.

Part VII Section 68.(1):

States that the Authority shall be responsible for carrying out environmental audit of all activities
that are likely to have significant effect on the environment. This includes the right of entry to
any land or premises for the purposes of determining how far the activities carried out on that
land or premises conform to the statements made in the environmental impact assessment study
report issued in respect of that land.

The owner of the premises or the operator of a project for which an environmental impact
assessment study report has been made is expected to keep accurate records and make annual
reports to the Authority describing how far the project conforms in operation with the statements
made in the environmental impact assessment study report submitted.
The owner of premises or the operator of a project is obliged to take all reasonable measures to
mitigate any undesirable effects not contemplated in the environmental impact assessment study
report submitted, prepare and submit an environmental audit report on those measures to the
Authority annually or as the Authority may, in writing, require.

4.2.3 The Environment and Land Court Act (2011)

An act of parliament to give effect to article 162 (2)(b) of the constitution; to establish a superior
court to hear and determine disputes relating to the environment and the use and occupation of,
and title to land and to make provisions for its jurisdiction, functions and powers and for
connected purposes
Overriding Objective: To enable the court to facilitate the just, expeditious, proportionate and
accessible resolution of disputes in land and the environment.
Jurisdiction of the court: The court has original and appellate jurisdiction to hear and determine
all disputes relating to environment and land. These include:
a. Environmental planning and protection, trade, climate issues, land use planning, title,
tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources;

b. Compulsory acquisition of land;

c. Land administration and management;

d. Public, private and community land and contracts, instruments granting any enforceable
interests in land;

e. Any other dispute relating to environment and land.

4.2.4 Other Acts on Land

a) The Government Lands Act (CAP 280) – this is an Act of Parliament with provisions for
regulating the leasing and other disposal of government land. The Act regulates all
transactions on land emanating from government alienation and empowers the
Commissioner of Lands to:

 Determine the tenure of land allocated

  Sanction all transactions
 Authorize setting apart of land for alienation
 Determine rent and stand premium on new allocations
 Allow the public to carry out searches of any information concerning any land
registry in Kenya

b) The Trust Land Act (CAP 288) – this Act makes provision for trust land (land held under
trusteeship by various County Councils) for the benefit of the people residing on the land
under customary laws and rights but with no registered interests in it. In relation to land
administration, the Act:

 Creates Divisional Land Board

 Empowers the county councils to grant leases and licenses in trust lands
 Empowers county councils to regulate land development within their areas

c) The Registration of Titles Act (CAP 281) – this is the Act that governs land registration in
Kenya and provides for transfer of land by registration of title. Under the Act, any
landowner whose land is or was registered under GLA or LTA has the option to have the
land registered under it. The Act also lays down the process of first title registration or
subsequent registrations.
d) The Registered Land Act (CAP 300) - This ACT was enacted as an improvement of the
provisions in the Registration of Titles Act. It provides that all lands previously registered
under the earlier Acts to be re-registered under it as a way of bringing all land under one
registration system. Unfortunately, this has not been achieved yet as the registration is still
done under the other four different registration systems currently.
e) The Sectional Properties Act, 1987. – this Act stipulates that a proprietor can own a unit
within a building without necessarily owning the whole building. It also provides for the
registration of the unit owned subject to the rights of others with interest in the same
building. The proprietor shares with the fellow owners the title and shares the cost of
maintenance of the commonly owned parts of the development. This Act is only applicable
when the residue of the lease term is not less than 45 years and the property must be
registered under the Registered Land Act (CAP 300)
f) The Land Control Act (CAP 302) – this Act provides for control in transactions and
dealings in agricultural land i.e. land not situated within townships, trading centers or a
market.
g) The Land Adjudication Act (CAP 284) – the Act provides for ascertainment and recording
of rights and interest in trust land and for the purposes connected there with. It also gives the
Minister of Lands the discretion to declare an area for adjudication for determination of the
rights and interests of the inhabitants with the view to registration of titles.
h) The Survey Act (CAP 299 – this Act makes provision in relation to surveys and
geographical names, the licensing of land surveyors and regulates the practice of surveyors.
It also stipulates that any survey of land relating to registration of title to land shall be
carried out under the direction of Directors of Survey.
i) The Land Consolidation Act (CAP 283) - the Act provides for ascertainment and
recording of rights and interest in and for the consolidation of land in special areas. It also
serves the purposes of prevention of fragmentation and subdivision of land.
j) The Physical Planning Act, 1966 – the Act provides for the preparation and
implementation of physical development plans. It also vests all the authority and power to
the Director of Physical Planning in controlling the use and development of land and
buildings in the interest of proper and orderly development of the area.
k) The National Land commission act

AN ACT of Parliament to make further provision as to the functions and powers of the
National Land Commission, qualifications and procedures for appointments to the
Commission; to give effect to the objects and principles of devolved government in land
management and administration, and for connected purposes
Object and purpose of the Act.
The object and purpose of this Act is to provide—
(a) for the management and administration of land in accordance with the principles of land
policy set out in Article 60 of the Constitution and the national land policy;
(b) for the operations, powers, responsibilities and additional functions of the Commission
pursuant to Article 67 (3) of the Constitution;
(c) a legal framework for the identification and appointment of the chairperson, members and
the secretary of the Commission pursuant to Article 250 (2) and (12) (a) of the Constitution;
and
(d) for a linkage between the Commission, county governments and other institutions dealing
with land and land
Functions of the Commission.
1) Pursuant to Article 67(2) of the Constitution, the functions of the Commission shall be
a) To manage public land on behalf of the national and county governments
(b) To recommend a national land policy to the national government;
(c) To advise the national government on a comprehensive programme for the registration of
title in land throughout Kenya;
(d) To conduct research related to land and the use of natural resources, and make
recommendations to appropriate authorities;
(e) To initiate investigations, on its own initiative .or on a complaint, into present or
historical land injustices, and recommend appropriate redress;
(f) To encourage the application of traditional dispute resolution mechanisms in land
conflicts;
(g) To assess tax on land and premiums on immovable property in any area designated by
law; and
(h) To monitor and have oversight responsibilities over land use planning throughout the
country.
2) In addition to the functions set out in subsection (1), the Commission shall, in accordance
with Article 67(3) of the Constitution—
(a) On behalf of, and with the consent of the national and county governments, alienate
public land;
(b) Monitor the registration of all rights and interests in land;
(c) Ensure that public land and land under the management of designated state agencies are
sustainably managed for their intended purpose and for future generations;
(d) Develop and maintain an effective land information management system at national and
county levels;
 (e) Manage and administer all unregistered trust land and unregistered community land on
behalf of the county government; and
(f) Develop and encourage alternative dispute resolution mechanisms in land dispute
handling and management
3) Despite the provisions of this section, the Commission shall ensure that all unregistered
land is registered within ten years from the commencement of this Act.
4) Parliament may, after taking into consideration the progress of registration, extend the
period set by the Commission under subsection (3).
Powers of the Commission.
1) The Commission shall have all the powers necessary for the execution of its functions under
the Constitution, this Act and any other written law.
2) Without prejudice to the generality of subsection (1), the Commission shall have powers to—
(a) gather, by such means as it considers appropriate, any relevant information including
requisition of reports, records, documents or any information from any source, including any
State organ , and to compel the production of such information where it considers necessary;
(b) Hold inquiries for the purposes of performing its functions under this Act;
(c) Take any measures it considers necessary to ensure compliance with the principles of land
policy set out in Article 60 (1) of the Constitution.
(3) In the exercise of its powers and the discharge of its functions, the Commission—
(a) May inform itself in such manner as it may consider necessary;
(b) May receive written or oral statements; and
(c) Is not bound by the strict rules of evidence.
Membership of the Commission.
1) The Commission shall consist of a chairperson and eight other members appointed in
accordance with the Constitution and the provisions of this Act.
2) The chairperson and members of the Commission shall be appointed in accordance with the
procedure set out in the First Schedule.