PROPERTY THEORY -

LECTURE 7
LAND TENURE
Ms Namiinda - Course Instructor
CS, LL.B, (UoN) LL.M, (UoN) KSL
(Dip),Advocate of the High Court of Kenya
  Conceptualizing tenure
 Land tenure – the tripartite question
 Land tenure in Kenya
 Property rights in land
 Feudal England
Class Outline  Estates in land
 Charges
 Derivative/analogous rights
 Adverse possession
 Condominiums
 Co-ownership
  Land Tenure:rules that aid in identifying and defining
the diverse interests in land, categories of land and
interest holders
 Tenure denotes the recognition of a right, a right to
own or hold land.
 It could also be a right of persons to use a resource
and to determine the nature and extent of use by
Conceptualizin others.
 Interests by right holders may either be overriding,
g Tenure: overlapping, complementary or competing.
 Such interactions between the rights of owners and
other people in relation to land also define tenure.
 Tenure also guarantees people the right of access to
land and the security and confidence that they will
not be arbitrarily deprived of their land rights.
  By land tenure, we refer to the rules that define how
individuals gain access to, and acquire, user rights
over land either temporarily or permanently.
 It also determines the physical and proprietary
Conceptualizin relationships between persons and land, and is
reflective of the manner in which rights over land are
g Tenure: distributed in society.
  The Tripatite Question:
 Who owns what interest in what land?
 What interest:
 Estate - free hold (absolute) or leasehold (for a term)
 encumbrance - burden imposed over land eg a charge
 or servitude - rights over someone else’s land eg easements or
profits a prende
Land Tenure  Who owns the land:
 The state - public land
 The community - communal land
 Individuals - private land
 What land?
 The physical solum
 The space above
 Land being more than just the res
  Adverse possession is ‘possession inconsistent with the title of the
owner.’
 There must be a denial of the owner’s title in one form or another
for possession to be adverse.
Adverse  It is referred to as “the use or enjoyment of real property with a
claim of right when that use or enjoyment is continuous,
Possession - exclusive, hostile, open and notorious.”
Introduction  The doctrine comes into application where one enters another’s
land without permission, and possesses it for a prescribed period
of time, afterwhich they gain title to the land.
 The possession needs to be: open, notorious and visible;
exclusive; actual; and continuous.
Adverse  Section 7 of the Limitation of Actions Act
Possession -  An action may not be brought by any person to recover land after
the end of twelve years from the date on which the right of action
Statutory accrued to him or, if it first accrued to some person through whom
provisions he claims, to that person.
  Ruth Wangari Kanyagia v Josephine Muthoni Kinyanjui [2017]
eKLR
 Nelson Kazungu Chai & 9 others v Pwani University College
Adverse [2017] eKLR on sqatters on Public land refusing to leave and
claiming infringement on their human rights
Possession -  Virginia Wanjiku Mwangi v David Mwangi Jotham Kamau[2013]
CASE LAW eKLR as reaffirmed in
 Koinange Investments and Development Company Limited v
Ian Kahiu Ngethe & 3 Others [2015] eKLR.
 a) Open and notorious use of the property
In Virginia v David the Court noted that,
 The occupation and use of the property by the adverse party
must be of such character that would give notice to a
reasonable person that someone would claim. If legal owner
Adverse has knowledge, this element is met. This condition is further
met by fencing, opening or closing gates or an entry to the
Possession property, posted signs, crops, buildings, or animals that a
Pre-requisites diligent owner could be expected to know about.
This means that the use of the property by the
adverse party must be visible and apparent as
to give notice to the legal owner that someone
may assert a claim to their land.
 b) Continuous use of the property
The adverse party must possess the land for the entire
period required under the Act for the interest to be
gained. The adverse party must possess the property
continuously for the entire limitation period, and use it
as a true owner would for that time. Continuous use
Adverse focuses on the adverse possessor’s time on the land and
Possession not how long the true owner has been dispossessed of
it. It is not enough for the adverse party to possess the
Pre-requisites land occasionally. Therefore,
 Occasional activity on the land with long gaps in activity fail
the test of continuous possession. Incidences such as merely
cutting timber at intervals, when not accompanied by other
actions that demonstrate actual and continuous possession,
fails to demonstrate continuous possession.
 Where the possession by the adverse
party is interrupted by the legal owner,
the time already spent does not count in
arriving at the required period of time: “If
Adverse the true owner ejects the adverse party
Possession from the land, verbally or through legal
Pre-requisites action, and after some time the adverse
party returns and dispossesses him again,
then the statute of limitation starts over
from the time of the adverse party’s
return
 c) Exclusive use of the property
The adverse party must use the land in question to
the exclusion of the legal owner. Thus, “If, for
example, the adverse party builds a barn on the
owner’s property, and the owner then uses the
Adverse barn, the adverse party cannot claim exclusive
Possession use.”In Johnson Kinyua v Simon Gitura Rumuri
Pre-requisites Nyeri Civil Appeal Number 265 of 2005 where the
adverse possessor was in exclusive possession of 8
acres only out of the 12 acres, the Court of Appeal
affirmed that “a claimant would not be entitled to
more than the parcel he had exclusive control of
and in this case, it is eight acres only.
 d) Actual possession of the property
This requirement is met if the adverse party physically uses the
land as a property owner would, depending on the type,
location and uses of the property in
question. The Court stated
 Merely walking or hunting on land does not establish actual possession.
Adverse The actions of the adverse party must change the state of the land, as by
clearing, mowing, planting, harvesting fruit of the land, logging or
Possession cutting timber, mining, fencing, pulling tree stumps, running livestock
and constructing buildings or other improvements. If the property is
Pre-requisites residential, such actions may include mowing the yard, trimming trees
and hedges, changing locks, repairing or replacing fixtures (such as a
swimming pool, sprinkler system, or appliances), or other actions so as to
maintain the property for its intended use, to the exclusion of its true
owner.
The possession must be actual and not merely constructive. In
Wabala and Another v Okumu,(1997) LLR (CAK). See also
Mutiso vs Mutiso[1998] LLR 3268 (CAK)
  e) Non-permissive, hostile or adverse use of the property
 The adverse party must enter or use the land without permission.
 Therefore,renters, hunters or others who enter the land with
permission are not hostile.
 The possession must be adverse as against the legal/registered
Adverse owner of the land. In Mwinyi Hamisi Ali v Attorney General &
another,[1997] eKLR,the Court of Appeal stated that, “Adverse
Possession - possession can only be claimed against a properly registered owner,
that is to say, possession must be adverse to that of the registered
pre requisites proprie_x0002_tor.” Therefore, where the consent of the legal
owner has been obtained, there can be no adverse possession.
 In Harrison Ngige Kaara v Gichobi Kaara & another,[1997] eKLR the
Court rejected a claim for title by adverse possession since the
claimant was on the land with the consent of his father and had
subsequently agreed to the division of the land in a succession
cause.
Thank you for
your attention!