Land Law in Kenya
Land Law in Kenya
An interest in land according to The Registered Land Act Cap 300 is defined as follows: “interest” in land includes absolute ownership of land. According to Black’s Law Dictionary, interest with regard to land law is defined as a legal share in something; all or part of a legal or equitable claim to or right in property that is, right, title, and interest. Collectively, the word includes any aggregation of rights, privileges, powers, and immunities. Oxford defines interest as interest with regard to land law as a right in or over land.
It may comprise equitable ownership of the land such as the interest of the tenant for life under a settlement, where the legal estate is owned by trustees; or the benefit of some other right over the land of another, such as an easement or rent charge. In all these definitions, the characteristics of rights over the land, ownership and title are key features of interests in land. We should therefore examine these three to develop a full understanding of what interests in land really are. Rights over Land
A right over land is the exclusive liberty and privilege to enjoy land due to the individuals with legal shares in the land. Land here is perceived as the following definitions:
Section 2 of the RTA defines land as including ‘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 there under lying or being, unless specifically excepted’.
Section 3 of the RLA defines land to include land covered with water, all things growing on land and buildings and other things permanently affixed to land. Section 260 of the Constitution of Kenya’s definition of “land” includes— (a) The surface of the earth and the subsurface rock;
(b) Any body of water on or under the surface;
(c) Marine waters in the territorial sea and exclusive
(d) Natural resources completely contained on or under the
(e) The air space above the surface;
Therefore when regarding rights over land, this is looking-glass through which land is viewed. The definition of a right over land has roots in two Latin maxims. 1. Cuius est solumeius estus que ad coelum et ad inferos: meaning he who owns the land owns everything extending to the very heavens and to the depths of the earth.
This maxim was set forth in Wandworth v United Tel. Co. Ltd (1884) 13 B.D. 904 2. Quid quid plantatour solo, solo cedit: meaning whatever is attached to the ground becomes a part of it. The rule also implies that objects attached to the building in question become annexed to the realty with the result that they are regarded as “fixtures.” The Land Registration Act Cap 300 Section 30 represents an evolution and stratification of these rights and goes on to describe these rights as follows: 30.
Unless the contrary is expressed in the register, all registered land shall be subject to such of the following overriding interests as may for the time being subsist and affect the same, without their being noted on the register – (a) Rights of way, rights of water and profits subsisting at the time of first registration under this Act; (b) Natural rights of light, air, water and support;
(c) Rights of compulsory acquisition, resumption, entry, search and user conferred by any other written law; (d) Leases or agreements for leases for a term not exceeding two years, periodic tenancies and indeterminate tenancies within the meaning of section 46; (e) Charges for unpaid rates and other moneys which, without reference to registration under this Act, are expressly declared by any written law to be a charge upon land; (f) Rights acquired or in process of being acquired by virtue of any written law relating to the limitation of actions or by prescription; (g)
The rights of a person in possession or actual occupation of land to which he is entitled in right only of such possession or occupation, save where inquiry is made of such person and the rights are not disclosed; (h) Electric supply lines, telephone and telegraph lines or poles, pipelines, aqueducts, canals, weirs and dams erected, constructed or lay in pursuance or by virtue of any power conferred by any written law: These rights are acquired by the proprietor of the land.
A proprietor, according to the Registered Land Act Cap 300 is (a) In relation to land or a lease, the person named in the register as the proprietor thereof; and (b) in relation to a charge of land or a lease, the person named in the register of the land or lease as the person in whose favour the charge is made; These rights are enshrined in the Laws of Kenya and as such they are a fundamental aspect of the Kenyan legal position.
The importance of the rights over land are as important as the issue of land itself for the rights over land are the reason and rationale to own, occupy and sell land. After all, what is the point of owning land if one has no rights over it? The Rationale Behind Rights over Land
The importance of these rights is engrained as much in their history as much as their practicality. The history of rights over land in Kenya can be traced back to the pre-colonial era. In pre-colonial Kenya, the land was owned by the community at large. Rights over land were granted to all members of the community. All members of the community could derive all benefits he or she so wished.
(It is important to note that the pre-requisite to enjoy these benefits was membership to the community not proprietorship as is the case today.) However, the land being owned by the community and by virtue of the entire community being able to use the land as they wished was by all means and purposes owned by the community at large not by individuals. Therefore the appropriation of such land was not under the purview of individuals.
By its very nature, appropriation is based on capitalist concept. The principle behind appropriation is the exclusive enjoyment of certain property and all rights pursuant to it. The African view towards land was inherently communist. The shift from the communist view towards the rights over land to the capitalist view was a result of the British invasion and colonisation of Kenya. Colonialism brought with it a free enterprise economy. A characteristic feature of that mode of production is that it is individualistic.
That is to say, at the core of it, the individual has the greatest motivation if he knows that whatever he applies, whatever he produces through his own sweat and effort will be entirely his and not available to be shared by others or subjected to being communally owned.
One immediate impact of the introduction of the free enterprise system was that land was treated as a commodity which could be individualized, sold, owned, or dealt with as per the wishes of those who had titles to such land. Due to agriculture being the main income generator for colonial settlers and in turn the colonial government, the issue of land ownership and the rights over land were dispensed with expediently.
Over the years, land policy in Kenya has undergone a transformation especially as a result of the 2010 Constitution. However, the basic rights over land have remained the same.
1. The use of land in a manner established by custom or law. 2. The right to hold property; part of an ancient hierarchical system of holding lands
Under capitalism the system of land tenure is based on the right of private land ownership (by capitalists or small working peasants) or on a land rental agreement. Various forms of rental relationships are becoming increasingly prevalent in agriculture. Under socialism the system of land tenure is based on public socialist ownership of the means of production and on the socialist economic system.
When the new system of landholding was introduced in the eleventh century, the king gave rights over large areas of land to each of his most powerful supporters, in exchange for an oath of loyalty and the performance of services (which very often involved ﬁghting for the king when necessary). In turn, each lord would grant to his followers similar rights over parts of the land he had received, again in exchange for loyalty and services.
The relationship between the grantor (the king or lord who granted the rights) and the grantee (the tenant who received them) is called ‘tenure’ (from the Latin word ‘tenere’ which means ‘to hold’), and various forms of tenure developed, according to the nature of the services to be performed by the tenant. These forms of tenure came to be described as ‘freehold tenures’, because rights in land could be held in this way only by free men (i.e., not by the unfree serfs or villeins, who were obliged to remain in the area in which they had been born and to work for the local lord).
Over the centuries, changes in society meant that the services due from the tenant were no longer performed and the link between lord and tenant was forgotten. However, the underlying theory that land is held from the Crown remained, and although most forms of tenure have been abolished a ‘landowner’ is still said to hold his land from the Crown by the one remaining form of tenure (‘free and common socage’). Nevertheless, for all practical purposes the doctrine of tenure has little modern signiﬁcance, and it is very likely that the owner of a house is completely unaware of his tenurial relationship with the Crown.
Under feudalism there were four principal forms of land tenure. Land tenure by the feudal lord, based on various forms of hierarchical feudal land ownership and on the dependent position of the workers themselves, the serfs or feudally bound peasants.
Tenure of allotted land by serfs who were attached to land not belonging to them and who therefore bore various obligations to the feudal lord for its use; this form secured the economic basis of the class rule of the feudal lords (gentry’s landowners) and, within certain limits, created conditions for the development of small-scale peasant farming.
The third form was land tenure by peasants who enjoyed personal freedom but had to pay a quitrent (monetary or in kind) to the feudal lords or fulfil personal obligations.
The fourth was land tenure by free peasants, based on their free, alodial ownership. Such a free peasant, however, was a rare phenomenon under feudalism.
Doctrine of Tenures is a doctrine followed in old English law whereby it is presumed that all land is held of the Crown, either directly or indirectly, on some type of tenure.
Legal Effect of Doctrine
The crown is the owner of all the land. No one has absolute ownership. Rather, landowners hold the land ‘of’ the Crown as tenants (therefore tenure). They may then alienate their land further, creating subtenants (subinfuedation). The relationship between a lord and his tenant is one of mutual duties. In return for tenure, a tenant provides the lord with services and a right to incidents.
Elements of Doctrine
According to the doctrine, all of the land ultimately belongs to the Crown, who gives it (via ‘grants’) to people. This means that no one has absolute ownership (no ‘allodial’ land). The people are said to hold the land ‘of’ the Crown. They are ‘tenants’ of the crown, therefore, they are granted ‘tenure’.
The doctrine creates the system of lord and tenant – the lord alienating land to a tenant (who can then alienate the land to someone else, creating a new lord and tenant relationship). There is a mutual exchange or duties and obligations between the lord and tenant: Services – the tenant has to provide a variety of services for the lord in return for his tenure. In return, the lord provides the land, a court (manorial courts) and protection. Incidents – the lord also had rights to incidents –
Roots of Doctrine
The doctrine originated in the Norman Conquest, when William the Conqueror
made the Crown the absolute owner of all land. His supporters were made ‘tenants in chief’ pursuant to a ‘grant’. The old landlords who did not rebel were entitled to keep their land. To deal with this, William created the legal fiction of the Crown having ‘granted’ this land to the landlords. Land ownership had a pyramidal structure with complex ties between Kings and tenants in chief. The King was at the tip, and sub-tenants were at the bottom. In the middle were tenants who made grants.
These tenants who made grants became Lords, for they possessed and held their land. The sub-tenants merely had a right to occupation. There was fragmentation in a spatial dimension (i.e. There were overlapping sets of rights over a particular area of land). This allowed more than 1 person to have an interest in the same land.
Development of Doctrine
The modern absolute definition of ‘ownership’ simply did not fit the feudal system of land ownership as no one person had absolute title. A freehold was not really ownership. Only the Crown had what came close to being considered absolute rights. The doctrine of tenure allows overlapping rights over one piece of land because of the subinfuedation.
The process eventually became too cumbersome, and a statute was created to reduce the difficulties that arose including: 1. It permitted every free man to alienate his interest in the whole or part of his land without his lord’s consent; 2. It prevented further subinfeudation to occur (Substitution still remained). If A held land as a tenant-in-chief (a landlord) from the King, and gave land to B, B would become the tenant-in-chief for that parcel. Earlier, A remained tenant-in-chief, while B was in an awkward quasi-tenured position.
There are two building blocks of English land law:
1) Doctrine of tenure
2) Doctrine of estates
The doctrine of tenure is now irrelevant, but shaped the doctrine of estates.
THE CONCEPT OF LAND TENURE
The term land tenure is derived from the Latin word tenure which means “to hold.” Tenure defines the social relations between people in respect of the object of the tenure, in this case land. Tenure also defines the methods by which individuals or groups acquire hold transfer or transmit property rights in land (Ogolla, Mugabe 1996).
Property rights may include a variety of different rights for example to build, to use, to transfer, to mine etc. the rights may be transferred or transmitted either together or individually at the discretion of the holder with or without limitations depending on the tenure system. Formal rules of tenure therefore define the nature and content of property rights in land or other resources and the conditions under which those rights are to be held and enjoyed.
LAND TENURE SYSTEMS IN KENYA
Interests in land broadly fall into two groups. Rights and that are held through traditional African systems, and rights that derive from the English system introduced and maintained through laws enacted by colonial and then the national parliament. The former is loosely known as customary tenure bound through traditional rules (customary law).
The latter body of law is referred to as statutory tenure, secured and expressed through national law, in various Act of parliament e.g. Government Land Act (cap 280), Registered Land Act(cap 300), Registration of Titles Act (cap 281), Trust Land Act (cap 288) of the Laws of Kenya.
a) Customary Land Tenure
This refers to unwritten land ownership practices by certain communities under customary law. Kenya being a diverse country in terms of its ethnic composition has multiple customary tenure systems, which vary mainly due to different agricultural practices, climatic conditions and cultural practices. However most customary tenure systems exhibit a number of similar characteristics as follows:
First, individuals or groups by virtue of their membership in some social unit of production or political community have guaranteed rights of access to land and other natural resources (Ogendo 1979). Individuals or families thus claim property rights by virtue of their affiliation to the group. Secondly, rights of control are rested in the political authority of the unit or community. This control is derived from sovereignty over the area in which the relevant resources are located.
Control is for the purpose of guaranteeing access to the resources and is redistributive both spartially and intergenerationally. Its administrative component entails the power to allocate land and other resources within the group, regulate their use and defend them against outsiders (Ogola, Mugabe 1996). Thirdly, rights analogous to private property accrue to individuals out of their investment of labour in harnessing, utilizing and maintaining the resource. Thus the present cultivator of some piece of land has the greatest rights to it.
These rights transcend mere usufruct and encompass transmission and in some communities transfer (Elias 1956). Lastly, resources that do not require extensive investment of labour or which by their nature had to be shared, for example, common pasturage are controlled and managed by the relevant political authority. Every individual member of the political community has guaranteed equal rights of access thereto. The regulatory mechanisms imposed by the political units such as exclusion of outsiders, seasonal variations in land use and social pressure ensured sustainable resource utilization.
This mode of ownership in Kenya is currently governed by the Trust Land Act by which all land in the rural areas which is neither government land nor individually owned is vested in the county council in trust for the residents living there.
b) Statutory Tenures
i) Freehold Tenure
This tenure confers the greatest interest in land called absolute right of ownership or possession of land for an indefinite period of time, or in perpetuity. Freehold land is governed by the Registered Land Act (RLA) Cap 300 of the Laws of Kenya. The Act provides that the registration of a person as the proprietor of the land vests in that person the absolute ownership of that land together with all rights, privileges relating thereto. A freehold title generally has no restriction as to the use and occupation but in practice there are conditional freeholds, which restrict the use for say agricultural or ranching purposes only. ii) Leasehold Tenure
Leasehold is an interest in land for a definite term of years and may be granted by a freeholder usually subject to the payment of a fee or rent and is subject also to certain conditions which must be observed. e.g. relating to developments and usage. Leases are also granted by the government for government land, the local authorities for trust land and by individuals or organisations owning freehold land.
The maximum term of government leases granted in Kenya is 999 years for agricultural land and 99 years for urban plots. There are few cases of 33 years leases granted by government in respect of urban trust lands. The local authorities have granted leases for 50 and 30 years as appropriate (GOK 1996).
c) Public Tenure
This is where land owned by the Government for her own purpose and which includes unutilised or unalienated government land reserved for future use by the Government itself or may be available to the general public for various uses. The land is administered under the Government lands Act Cap 280.These lands are vested in the president and who has, normally through the Commissioner of Lands, powers to allocate or make grants of any estates, interests or rights in or over unalienated government land.
Categories of government land include forest reserves, other government reserves, alienated and unalienated government land, national parks, townships and other urban centres and open water bodies(GOK 1996). The Government Lands Act does not contain any notion of trusteeship by government of the land to her people. Indeed the government at times acts as a private owner and allocates parcels to those in its favour.
d) Other Interests
– Reservations of other government or trust land to government ministries, departments or parastatals for their use.
– Minor interest such as easements, wayleaves or temporary occupation licences. – Non formalised defacto tenure by which people, individually or in groups invade and occupy other people or government land particularly in
major urban centres of Nairobi, Mombasa and Kisumu.
Land has been described as ‘those parts of the earth that are capable in law of being owned and are within court jurisdiction. Generally , ownership of land includes the airspace above it and the sub soil below it (a coelo usque ad centrum; from the heaven to the centre of the earth).Land tenure is the name given, particularly in common law systems, to the legal regime in which land is owned by an individual, who is said to “hold” the land Ownership is the exclusive right to use, possess, and dispose of property, subject only to the rights of persons having a superior interest and to any restrictions on the owner’s rights imposed by agreement with or by act of the third parties or by operation of law.
Ownership may be;
Corporeal- of material thing which may itself be a movable or an immovable Incorporeal- of something tangible e.g. copyright Ownership involves enjoyment of a number of rights of the property. The owner can alienate some of those rights while still retaining others; e.g. an owner of land may grant a right of way or a patent owner may grant a license to manufacture the patented goods. Ownership may be held by different persons for different interests e.g. when a freehold owner grants a lease or when land is held on a trust of land for persons with interest in succession to one another.
More than person can own property at the same time they maybe either joint owners with a single title to the property or owners in common each having a distinct title in the property that he can dispose of independently. A person may be either the legal and beneficial owner, or the legal ownership of property maybe separate from the beneficial ownership, which is the right to enjoy the property as when a trustee owns the legal estate in land for the benefit of another.
A legally valid transaction may confer specific rights to use, posses, or deal with property without conferring ownership of it e.g. a contract may appoint a person as the owner’s agent for the sale of specified land. BRIEF HISTORY OF LAND TENURE
Historically in the system of feudalism, the lords who received land directly from the Crown were called tenants-in-chief. They doled out portions of their land to lesser tenants in exchange for services, who in turn divided it among even lesser tenants. This process—that of granting subordinate tenancies—is known as subinfeudation.
In this way, all individuals except the monarch were said to hold the land “of” someone else. Historically, it was usual for there to be reciprocal duties between lord and tenant. There were different kinds of tenure to fit various kinds of duties that a tenant might owe to a lord. For instance, a military tenure might be by knight-service, requiring the tenant to supply the lord with a number of armed horsemen. The concept of tenure has since evolved into other forms, such as leases and estates.
MODES OF OWNERSHIP AND TENURE
Here are a great variety of modes of land ownership and tenure: Traditional land tenure. For example, most of the indigenous nations or tribes of North America had no formal notion of land ownership. When Europeans first came to North America, they sometimes simply disregarded traditional land tenure and simply seized land; more often, they accommodated traditional land tenure by recognizing it as aboriginal title.
This theory formed the basis for (often unequal and often abused) treaties with indigenous peoples. Ownership of land by swearing to make productive use of it. In several developing countries as Egypt, Senegal, this method is still presently in use. In Senegal, it is mentioned as “mise en valeur des zones du terroir”and in Egypt, it is called Wadaa al-yad. Allodial title, a system in which real property is owned absolutely free and clear of any superior landlord or sovereign.
True Allodial title is rare, with most property ownership in the common law world (Australia, Canada, Ireland, New Zealand, Kingdom, United) being in fee simple. Allodial title is inalienable, in that it may be conveyed, devised, gifted, or mortgaged by the owner, but it may not be distressed and restrained for collection of taxes or private debts, or condemned by the government.
Feudal land tenure, a system of mutual obligations under which a royal or noble personage granted a fiefdom ,some degree of interest in the use or revenues of a given parcel of land, in exchange for a claim on services such as military service or simply maintenance of the land in which the lord continued to have an interest.
This pattern obtained from the level of high nobility as vassals of a monarch down to lesser nobility whose only vassals were their serfs. Fee simple ; under common law, this is the most complete ownership interest one can have in real property, other than the rareAllodial title. The holder can typically freely sell or otherwise transfer that interest or use it to secure a mortgage loan. This picture of “complete ownership” is, of course, complicated by the obligation in most places to pay a property tax and by the fact that if the land is mortgaged, there will be a claim on it in the form of a lien. In modern societies, this is the most common form of land ownership.
Land can also be owned by more than one party and there are various concurrent estate rules. Native title ; in Australia, native title is a common law concept that recognizes that some indigenous people have certain land rights that derive from their traditional laws and customs. Native title can co-exist with non-indigenous proprietary rights and in some cases different indigenous groups can exercise their native title over the same land. Life estate ; under common law, this is an interest in real property that ends at death. The holder has the use of the land for life, but typically no ability to transfer that interest or to use it to secure a mortgage loan.
Fee tail ; under common law, this is hereditary, non-transferable ownership of real property. A similar concept, the legitime, exists in civil and Roman law; the legitime limits the extent to which one may disinherit an heir. Leasehold or rental ; Under both common law and civil law, land may be leased or rented by its owner to another party; a wide range of arrangements are possible, ranging from very short terms to the 99-year leases common in the United Kingdom, and allowing various degrees of freedom in the use of the property.
Rights to use a common, which may include such rights as the use of a road or the right to graze one’s animals on commonly owned land.
Sharecropping, under which one has use of agricultural land owned by another person in exchange for a share of the resulting crop or livestock. Easements, which allow one to make certain specific uses of land that is owned by someone else. The most classic easement is right-of-way, but it could also include (e.g. the right to run an electrical power line across someone else’s land.
Definition of title
a) The coincidence of all the elements that constitute the fullest legal right to control and dispose of property or a claim. b) The aggregate evidence that gives rise to a legal right of possession or control. c) The instrument, such as a deed, that constitutes this evidence. d) Something that provides a basis for or justifies a claim
e) Legal right to possession of legal property
Title is the set of facts upon which claim to a legal right or interest is founded, title can exist even when there is no pre-existing legal interest or right vested in a person who claims he has title. Professor Ray Goode distinguishes title and interest in this manner: A persons’ interest in an asset denotes a quantum of rights over which he/ she enjoys against others’, his title measures the strength of the interest which he enjoys in relation to others.
Title to a proprietary interest can be either relative or absolute. An absolute title is one that is indefeasible in the sense that there is no-one else who can point to a better title in respect of the same object. The essence is basically that there isn’t anyone with a better title. Instances of proving absolute title:
i. Simplest is through creation of something out of nothing for example an author of a book has absolute title over the said book because he wrote it and hence created something from nothing. ii. Manufacturing of something in the absence of other evidence of manufacture of the said thing being manufactured but any one other then he claiming he manufactured it for example coca-cola have absolute products over coca-cola for no one other then they have the correct formula of creating the fizzy drink. iii. Registration of such said title, gives you absolute title. This means that if one is to buy a piece of land and it is properly registered in the proper procedure then he has absolute title to the land
A relative title is one that can be defeated by a person showing that he or she has a better title to the thing It follows from the definitions’ of title that two or more persons may have independent legal interests in the same thing. For example, both a true owner of an asset and a person with mere possession with the intention to control can have absolute legal interests in the asset.
This legal interest is enforceable against third parties by both the true owner and a possessor. Whilst they both have identical legal interests, they have titles that are different in nature. The true owner has a much stronger title than a mere possessor of the chattel.
A true owner has an indefeasible title whereas the possessor has a mere relative title. The strength of the true owner’s title is greater because it cannot be defeated by anyone so long as the true owner has an intention to control the asset. The title of the possessor is liable to be defeated by the true owner, and thus, whilst he has a legal interest, his title is a relative one. There are different ways that one can take up a title, this are the ways: Sole Owner
Taking title as sole owner means that only one person holds title. He or she is the sole owner of the property and no one else needs to be considered.
Tenants In Common
“Tenants in Common” means that the only thing the owners have in common is tenancy in the property. The property may have 2 or more owners and they may be related or unrelated. What is essential to note is that the percentage of each owner may be sold or willed without the permission of the other owners. For instance, if both John and Bob own a piece of property and John dies, the percentage of ownership of John goes to John’s heirs, not to Bob.
Tenants in Entirety
“Tenants in Entirety” is reserved for married couples only. This means that you own the property as one. If something happens to either one of you, the other person automatically keeps title to the property.
“Joint Tenancy” means that each of you owns the property jointly. When you take title as Joint Tenants, you’ve agreed to the right of survivorship to the title of the property. This means that if one of you passes away, the other gets the property. It also means that one owner cannot sell or will the property without the other owner’s consent. For instance, if owner John wants to sell the property, then co-owner Bob will have to agree to that.
A popular trend is taking title as a trust. This means that the trust, not you, owns the property. This may protect your asset in the event of litigation Registration of title is made out by the fact that it offers cheap and expeditious insecure methods in property dealings which are in sharp contrast to the position in the unregistered system which was thought to be costly, disorganized insecure and complicated. Its principle objective is to replace the traditional and registered title method with a single established register which is state maintained and therefore conclusive and authoritative as to the details or particulars set out therein.
It is precisely because of that that it is credited in eliminating wasteful burden placed on potential purchasers under the unregistered system which requires them to separately investigate titles to assure themselves that it is a good title that can pass and which is free from any hidden claims which may be adverse to their interests. Since it is state maintained and operated, the title registration system enjoys all the advantages that are unavailable under the registration of the deed system which is not very different from the unregistered system.
Unlike the registration of the deed system the registration of title system has the capability of investing secure titles in all persons in whose favour such registration may be effected. It is further regarded as final authority on the correct position regarding any registered land. It is also cheap and expeditious in terms of facilitating various transactions regarding registered land. State indemnity is available for any losses that may be incurred and so it makes conveyance very simple.
DOCTRINE OF ESTATES
What is an Estate?
Black’s Law Dictionary defines an Estate as “The amount, degree, nature, and quality of a person’s interest in land or other property; esp., a real-estate interest that may become possessory, the ownership being measured in terms of duration.”
These are interests projected on the plane of time so as to be able to be capable of quantification in terms of duration. An estate must be distinguished from Tenure, which is concerned with the quantity of estate. Tenure as it is basically refers to a set of conditions upon which an estate interest in land may be held. Hence, the relevant question is how much and not for how long, the latter being applicable to the estate.
What is the Doctrine of Estates
This is an old English rule that a person cannot own land, but can merely own an estate in it, authorizing the person to hold it for some period of time. The Doctrine Of Estates And The Rise Of The Fee Simple
There are two elements to the doctrine of estates, corresponding to two ways in which estates may be classified: (1) Duration: An estate in the land is a time in the land or the land for a time so land can be split into slices of time. Illustration
Simpson imagines a cake – the whole cake is the fee simple (time in land without end) but slices of cake can be taken out and passed to another; e.g. an estate for life, then get the cake back. This is a present right to present enjoyment. Case Law
(2) Time of enjoyment: Not only may the right to seisin be cut up into slices of time, but there may also be a present (alienable) right to a future enjoyment, when the person with the life estate has died. This is a present right to future enjoyment (but that right can still be transferred now to
another); to get the cake back in the future.
It was formally known as the doctrine of tenure that concentrated on the quality of interests in land. It has its origin in the medieval theory in English law. After the Norman Invasion of 1066, the king acquired an ultimate ‘radical’ title to all the land in England (the government has similar title in Kenya). It followed that all subjects occupied their land on terms of grant acquired ultimately from the charity of the crown. The King determined who got the best prince for land depending on your benefit to him.
(Benefits included service as Knights in his army, produce from the land, service to the Crown as well as other shows of fealty.) In such an arrangement it wasn’t clear what a tenant could say he ‘owned’ but answer was eventually found in the doctrine of estates. This doctrine gave expression to the idea that each landholder owned not land but a slice of time. Each estate comprised of time related segments- a temporal slice- of the rights and powers exercisable over the land. Types of Estates
Estates are divided into two:
(a) Free-hold Estates
(b) Less than free-hold Estates (Lease-hold)
Black defines Free-Hold Estates as “An estate in land held in fee simple, in fee tail, or for term of life; any real-property interest that is or may become possessory.” Bouvier defines free-hold estates as “An estate of freehold is an estate in lands or other real property, held by a free tenure, for the life of the tenant or that of some other person; or for some uncertain period.
It is called liberum tenementum, frank tenement or freehold; it was formerly described to be such an estate as could only be created by livery of seisin, a ceremony similar to the investiture of the feudal law. But since the introduction of certain modern conveyances, by which an estate of freehold may be created without livery of seisin, this description is not sufficient.”
(The term livery of seisin means simply “transfer of possession”: livery means “delivery” and is from the Old French livrer, and seisin means “possession” and is from the Old French saisir or seisir. The concept behind livery of seisin, therefore, was the symbolic transfer of the possession of land. ) Summarily, this is an interest in land that a particular person holds and it is usually for an unlimited period of time and is passed on to his/her heirs according to the type of free-hold estate the owner had contracted into. TYPES OF FREE-HOLD ESTATES
There are three types of Free-Hold Estates:
(a) Fee-Simple Estate
(b) Fee-Tail Estates
(c) Life Estates
A. Fee-Simple Estate
“Fee” refers to estates of inheritance while the word simple connotes possession by the heirs generally. Originally this was an estate which endured for as long as the original tenant or any of his heirs survived. ‘Heirs’ comprised any blood relations, although originally ancestors were excluded; not until the Inheritance Act 1833 could a person be the heir of one of his descendants.
Thus at first a fee simple would terminate if the original tenant died without leaving any descendants or collateral blood relations (e.g. brothers or cousins), even if before his death the land had been conveyed to another tenant who was still alive. However, by 1306 it was settled that where a tenant in fee simple alienated the land, the fee simple would continue as long as there were heirs of the new tenant and so on, irrespective of any failure of the original tenant’s heirs, Thenceforward a fee simple was Virtually eternal.”
2 The estate in fee simple is the largest estate known to the law, ownership of such an estate being the nearest approach to ownership of the land itself which is consonant with the feudal principle of tenure, It is ‘the most comprehensive estate in land which the law recognises’; it is the ‘most extensive in quantum, and the most absolute in respect to the rights which it confers, of all estates known to the law’,
Traditionally, the fee simple has two distinguishing features: first, the owner (‘tenant’ in fee simple) has the power to dispose of the fee simple, either inter vivos or by Will; second, on intestacy the fee simple descends, in the absence of lineal heirs, to collateral heirs to a brother, for example, if there is no issue,”3 All fee simple estates in Kenya whether by initial grant or by conversion of long leases can be traces ultimately to the Crown Lands Ordinances of 1902, 1915 and the Government Lands Act4.
Accordingly, their radical titles remain vested in the State. Accordingly, to H.W.O Okoth Ogendo5, the only practical implication of such conclusion is that where the fee simple cannot pass due to failure of issue, the estate will escheat to the State as the ultimate heir of all property rights in land. This is the effect of Section 8(A) (I) of the G.L.A6, which expressly preserves the doctrine.
Types of Fee Simple Estates
There are three types of fee simple estates:
a) Fee Simple Absolute
Interests of rights are limited as against others but not as against the State. This means that ownership is exclusively enjoyed by the owner and is indefeasible by anyone other than the State b) Determinable Fee Simple
The Estates terminates automatically upon the occurrence of a specified event. Some of the terminologies used are “so long as”, “until” “during” “while” and others that denote duration. c) Conditional Fee Simple
This has a stipulation attached to it by which the Estate may be cut short upon the occurrence of the said event. Some of the terminologies used are “but” “if” “on condition that” “provided that”. In Free-hold Estates is known as the “grantor” while the person being given the estate is known as the “grantee”. With Fee Simple Estates, there are certain terms used by the partakers of a Fee Simple Agreement such as: The person in possession, in remainder, in reversion:
“In possession”: This denotes the person enjoying the property at that point in time “In Remainder” :This denotes the person waiting for his/her turn to
enjoy the estate(s) “In Reversion”: This denotes the grantor who is waiting for the land to revert to him/her.
B. FEE TAIL
Fee here refers to a person’s hers/inheritors while “Tail” connotes that the land passes on to specific heirs based on gender, trait or other parameter as may be specified by the grantor. It is essentially an estate that is heritable only by specified descendants of the original grantee, and that endures until its current holder dies without issue. C. Life Estates
pur autre vie (For the life of another)
Here the estate is determined by a particular life,it could be that of the grantee or that of another individual for example the spouse. life estate (1888) A life estate for which the measuring lite – the life whose duration determines the duration of the estate – is someone’s other than the possessor’s. This is an estate, which subsists for the life of another and not of whom the property rights are/were vested. Thus if property is vested in A for the life of B, the estate will last for as long as B lives. But if B dies before A, the property reverts to B, the settler.7
The Kenyan position
The foregoing classification of rights and interests in property has been imported/ into or inherited by Kenya, albeit with a few qualifications i.e. the fee tail estate is not relevant in Kenya. Accordingly we only have the fee simple estate. The fee tail estate disappeared in 1942 when the colonial government enacted the Trust of Land Act. This enactment was with one object – to abolish settlement.
A settlement was a devise used in England to tie up Land within the family and accordingly, to control property. After the life estate, there is a remainder, which reverts back to the donor i.e. the fee simple. For continuity, the donor can transfer the property to another and another and eventually a tail, which however, will still have a reminder, which will revert to the donor. This situation was abolished by the Trust of Land Act8. This act defined a settlement as an attempt to create a settlement without exploiting the full estate i.e.
The Fee Simple. Under the act, if a person attempts to do so, whatsoever is done will be converted into a trust for sale. A settlement will be converted by Cap 290 into a trust. An equitable interest is an interest that lies behind a trust since it creates a settlement. A trustee can always dispose of the settlement subject to the rules of the trust. The Kenyan position is further made advent of the Absolute estate.
This is purely a creature of the R.L.A9. Accordingly, the absolute estate under the R.L.A supersedes the fee simple estate existent under the ITPA. However its worth noting that under the ITPA, the fee simple estate remains to be the largest estate. We still have in Kenya, the customary estate i.e. an estate in land defined by customary law