1.3.

The Foundations of the Law of Property in Kenya

Having introduced, albeit briefly, the concept of the law of property in land, it is
important that we again briefly examine its foundations in Kenya. This is necessitated by
the fact that any student of the law on proprietary transactions should not only be well
versed in the law which creates the subjects of such transactions, but also with its
foundations. Accordingly, the purport of this sub-topic shall be to introduce the reader to
the peculiar circumstances and happenings, which have defined our law of property in
land and by extension, the subjects of the Kenyan Law on proprietary transactions. This
is done with a view to laying a concrete basis for the oncoming extensive and intensive
study of the latter branch of Kenyan Law.

To begin with, the foundations of the law of property in Kenya is to be traced first, to the
customary land law tenure and secondly, to the colonial administration in Kenya. These
two factors have largely defined the historical underpinnings of property law in Kenya
which have consequently greatly informed and impacted the present regimes on property
and proprietary transactions. Indeed, it would be well nigh impossible for anyone to
attempt to grasp contemporary law of property in land, leave alone the law on proprietary
transactions, if one did not possess a marked appreciation of the historical place of
customary land tenure and the origin, nature, and concerns of colonialism in Kenya.

1.3.1. Customary Land Tenure System

Customary land law tenure system largely obtained prior to the advent of colonialism in
Kenya. But, as it would be seen hereunder, the system has been significantly replaced by
the agrarian policy introduced by the colonial government in Kenya though some
communities and areas in Kenya still remain under the authority of customary land law
and over which application of formalization processes have had no significant
consequences. It is nevertheless important to study this system of law for, as already
elucidated above, it forms the foundation of the regime of law regulating the ownership
and possession of property and the province of proprietary transactions in Kenya.

Customary land law tenure owes its legitimacy to the traditional societies (communities)
where land was owned on a communal basis by different tribes (groups of people) who
lived in the region presently Kenya before the advent of the colonial rule.1 Though Kenya
is composed of diverse groups of people with different values and perception 2 and despite
the fact of there being varying forms of ownership of land, it is possible to discern certain
common characteristics in the land tenure systems of communities.3 However, it is vital
to note that the social transformations of the people and their philosophy as determined
by the dictates of the historical stage of development (hunting, gathering, herding and
settled farming etc.) were important influences on the land tenure system of each
traditional community.4

Customary land law tenure was (and is) anchored on the premise that land is much more
than the physical soil. As such in many African societies, traditional philosophy ascribed
a sacred significance to land. In particular land did not belong to a particular person but
to God.5 The Njonjo Commission of Inquiry into the Land Law System of Kenya
captured well this phenomenon. It stated thus in its 2002 report:

1
Much of the available literature on property relations in the pre-colonial period have generally
characterized land tenure in Kenya as having been communal in the sense that the entire community
exercised ownership over its entire land through some traditional institutions. See for example, Kenyatta
Jomo, Facing Mount Kenya: The Traditional Life of the Gikuyu, Nairobi, Kenway Publications, 1938, p.
25; see also James R.W. and Fimbo G.M., Customary Land Law of Tanzania: A source Book, , East Africa
Literature Bureau, Dar es Salaam, 1973, p. 3
2
Kenya has more than forty-two (42) ethnic communities, each having a variety of land tenure systems.
This limits the extent to which one can broadly generalize and categorise customary systems of land tenure.
3
See Ogola B.D. and Mugabe J., “Land Tenure Systems and Natural Resource Management” in Juma C.
and Ojwang J.B. (eds), In Land We Trust: Environment, Private Property and Constitutional Change,
Initiatives Publishers and Zed Books, Nairobi, 1996, pp. 85-116
4
See Smokin Wanjala. “Recurrent Themes in Kenya’s Land Reform Discourse Since Independence” in
Essays of Land Law: The Reform Debate in Kenya, Faculty of Law, University of Nairobi.
5
Among the Ogiek for instance, all land belonged to God. To the Gikuyu, the earth was considered a most
sacred thing with the soil being especially honoured. See also Odour, M. , “Community Based Property
Rights: A Case Study of the Endorois Community, Baringo District”, Draft Paper presented at in-house
Workshop on Community Based Property Rights and Sustainable Natural Resource Management in Kenya,
RECONCILE, Nakuru, 9th August, 2000

2
 ‘…For indigenous Kenyans, land also has an important spiritual value. For land is
not merely a factor of production; it is; first and foremost, the medium which
defines and binds together social and spiritual relations within and across
generations. As one Nigerian Chief put it, “land belongs to a vast family of which
many are dead, few are living, and countless members are still unborn”. Issues
about its ownership and control are therefore as much as about the structure of
social and cultural relations as they are about access to material livelihoods. This
is one reason why debate about land tenure in Africa always revolves around the
structure and dynamics of lineages and cultural communities rather than on strict
juridical principles and precepts.’6

Since it was so, it meant that members of the particular community could exercise certain
rights over the land in varying degrees of equality with others of the same community. In
turn, that right was secured by virtue of membership in that community or more
specifically by membership into some socially distinct unit of that community.
Membership into a community or its unit of course required the performance of certain
obligations, which in turn defined rights of access and use of land. The degree of access
and use exercised by any particular member would also depend on the status of that
member. In essence customary land tenure was inclusive in nature.7

In the Pastoral communities, communal ownership was predominant and land use was
basically intertwined around the community. The main reason for this being that the
economic lifestyle and the climatic conditions were such as not to favour settled forms of
production thus discouraging individualized property ownership. Moreover, as the
pastoral economy laid a lot of emphasis on livestock rather than land, more priority was

6
Report of the Commission of Inquiry into Land Law System of Kenya on Principles of a National Land
Policy Framework Constitutional Position of Land and New Institutional Framework for Land
Administration, Government Printer, Nairobi, November 2002
7
By inclusive land tenure is meant tenure which guarantees that the available land caters for any expansion
in the community population on a continuing and re-adjusting basis through re-arrangement and re-
allocation of access rights to the land. An “exclusionary” Land tenure system on the other hand seeks to
accord to the individual primary control and primary access to the land in question thereby de-emphasizing
and often negating corporate-sharing of access rights to the land in question

3
given to livestock. To the pastoralists, the important resources were pasture and water
whose availability fluctuated from time to time.8

Tenure relations under this customary system were controlled by some socially distinct
authority usually comprising of a functionary e.g. a chief, an elder, council of elders,
spiritual leader etc.9 Such an authority solved the problem of allocation by overseeing the
access, management and use of land.10 Control was for the purpose only of guaranteeing
access to land and the resources found on it. Decisions about whom to exclude and who
not to exclude also rested with this controlling authority.

In summary, Adam Leach observes that there are at least five dominant concepts to most
customary tenure systems, as follows:

a. Tenure is family based and the head of the family holds rights on behalf of
other family members.

8
See Asiema, J. K. & Situma, F.D.P. (1994), “Indigenous people and the Environment; The case of the
Pastoral Maasai of Kenya” in 4 Colo. J. Int’L Env’t L & Policy pp. 149 - 171
9
These functionaries served the allocator’s role in the tenure relations. According to Jeremy Waldron in his
1988 book, The Right to Private Property, the concept of property is the concept of a system of rules
governing access to and control over material resources which include land. These material resources are
usually scarce with the result that conflicts abound as to who is to get what at what time. Herein arises the
problem of allocation, that is, the problem of determining peacefully and reasonably predictably who is to
have access to what resources for what purposes and when. In a traditional community the power of
resolving this problem i.e. the allocating power vests in some local leader. See Waldron J. , The Right of
Private Property, Oxford Clarendon Press, London, 1988, p. 32
10
Generally, the composition of the allocating authority was dependent on the use for which the land was
employed and the social organization of the community. Thus for example, among the sedentary
agricultural groups leading a more settled life, control of use and access generally began at the lower level
of the family and progressed concentrically to the highest unit of control in the community. Among the
Gikuyu, for example, a man would acquire an estate by cleaning a vast tract of land often extending to a
complete ridge. The man would start a nuclear family which would expand later on to become an extended
family at which point the locus of control would then shift progressively to the leaders of the greater
lineage members, eventually to the clan elders. Among the luo a common grandfather regulated use and
access within a lineage set-up. He was recognized as the land controlling authority and allocated cultivation
rights and controlled types and scopes of use with regard to land that required more expansive access tights
e.g. grazing. A council of common grandfathers exercised the allocating role. See Odour M., “Community-
Based Property Rights and the Management of Natural Resources in Kenya”, Unpublished LLB
Dissertation presented to Faculty of Law, Moi University, 2001, p. 26. See also Ogolla and Mugabe Supra
n. 11, p. 98

4
 b. Individual and group membership of the social unit of production or
political community have guaranteed rights of access to land or other
natural resources.
c. Rights of control are vested in the political authority of the unit or
community.
d. Private property rights accrue to individuals because of the investment of
their labour in exploiting resources.
e. Resources which do not require extensive investment are shared as
common pasturage and managed by the relevant political authority or
people with appropriate jurisdiction.11

However, with the introduction of colonialism, these customary conceptions about use
and ownership of land began to be eroded. The colonial masters brought with them new
institutions of ruler-ship which systematically undermined the traditional socially
accepted institutions of leadership.12 Moreover, other social and cultural changes
occurring within communities have generally changed the outlook of their members with
the result that traditional forms of production may no longer be fashionable. Other
variables like population increase have generally forced communities to change their
means of economic production. Nevertheless, as earlier noted, there are certain areas and
communities that still practice and hold fast to the customary land tenure system.

1.3.2. The Colonial Factor in the Evolution of Kenyan Law of Property and
Conveyancing

11
See Adam Leach, “Land Reform and Socioeconomic Change in Kenya” in East Africa Journal of Peace
& Human Rights, vol 4, No. 1, 1988, pp. 41-69. see also M.P.K. Sorrenson, ‘The Origin of European
Settlement in Kenya, Oxford University Press, Nairobi, 1968
12
The colonial masters were guided (or is it misguided?) By the notion that the African community had no
concept of land ownership. They thus sought to replace the African system of communal land ownership
with individual ownership of land which was in direct contrast with the understanding of Africa’s idea on
land ownership. It was for example; argued that since natives had no any form of political organization
could, not accordingly; claim to have any rights in land. It was stated, “sovereignty if it can be said to exist
at all…is made of chiefs, elders, who are practically, savages and who exercise a precarious rule which
have not yet developed either an administrative or legislative system-even the idea of tribal ownership is
unknown, except in so far as certain tribes usually live in a particular region and resist the intrusion of
weaker tribes…. The occupation

5
The incidence of colonialism in Kenya dates back, generally, to the scramble for Africa
via the Berlin Conference of 1885, and, particularly, to the declaration of a protectorate
over much of what is now Kenya on 15 June 1895.13 From then, the British rule endured
until 12 December 1963 when Kenya attained its independence. Throughout this period,
the major concern of the colonial masters was capital accumulation which concern was
initially hindered with Kenya being under the protectorate status.14 Pursuant to an opinion
given by the Law Officers of the British Crown in 1833 in respect of Ionian Island, the
protectorate status did not confer radical title to the land in the territory.

As a consequence thereof, rights in land could only be acquired by way of conquest,

agreement, treaty and to an extent by sale. Some of these methods were only possible
within the ten-mile strip at the coast, which was, then under the jurisdiction of Zanzibar
Sultan.15 This difficulty called for drastic revision of imperial jurisprudence which was

13
At the time of the scramble for Africa which saw East Africa divided into British East Africa (under
Britain) and German East Africa (under Germany), the British policy in East Africa was based on the
strategic rather than economic significance. According to Mungeam, the reason for Britain’s assumption of
territorial jurisdiction over East Africa was not in the new acquisition of political and economic
significance but in the wider field of international diplomacy. Mungeam’s emphasis is founded on the
strategic significance of the opening of the Suez Canal in 1869 and the importance of controlling the head
waters of river Nile viz Uganda. To him, there was little in East Africa to move the British Empire to
assume jurisdiction (apart from the aforecited reason). However, this position is found wanting considering
that following the construction of the Kenya-Uganda Railway coupled with the discovery of a climate
conducive for European settlement and agriculture, the British recognized Kenya as of economic
importance to their needs. See Okoth Ogendo, Tenants of the Crown: Evolution of Agrarian Law and
Institutions in Kenya, ACTS Press, Nairobi, 1991
14
The process of capital accumulation was to be effected through a plantation/estate system of agricultural
production that invariably had to be under the control of Europeans. This necessitated the need to have and
wrest control over land from the natives. The land so acquired could then be used as an incentive to attract
settlers.
15
Land tenure issues in the 10-mile coastal strip of East Africa are intertwined with the early Swahili
settlement in the region and the Indian Ocean trade. In Kenya, thia area covers a strip jof land of 1900Km
stretching from Vanga in the south coast to the Lamu archipelago in the North. The ownership of land in
this area hjas changed hands severally between the Sultan of Zanzibar, imperial British East Africa
Company (IBEACO), and later the British and Kenya Government. The Omani Arabs conquered the East
Coast of Africa in 1660 AD and declared their sovereighty over the entire coastal region from Mozambique
to Somalia.
In 1885, Sir William Mackinon of the IBEACO signed an agreement with Sultan Sayid Baghash of
Zanzibar for leasehold on the 10-mile strip. In 1888 all the land in the area was ceded to the British
Government by virtue of a concessinary agreement signed between the British and the Sultan of Zanzibar.
Under the agreement, all rights to land in this territory, except for the private property, were vested in the
Crwon. In 1902, the RDA was enacted to facilitate registration of documents relating to priate land in the
area. In 1908 it bacame necessary to adjudicate land in the 10-mile strip in order to separate private
property from Government land and the LTA of 1908 was passed for this purpose. Those individuals who
successfully claimed their land rights were issued with a freehold certificate of ownership or certificate of
mortgage. Title deeds issued for the RDA lands did not create new rights to land but confirmed the existing

6
undertaken gradually over years culminating in the explanation by the Law Officers in
1899 that their 1833 opinion only applied to protectorates “with a settled form of
Government”.16 In the case of the East African protectorate, the law officers opined that
the Foreign Jurisdiction Act of 1890 gave the Crown the power of disposition over
“waste and unoccupied land”.

The opinion of the Law Officers of the Crown having been revised, the colonialist found
the basis of subsequent legislative instruments touching on land. In 1901, the East Africa
(Lands) Order in Council17 was passed to give effect the Law Officer’s opinion. It vested
crown lands in the whole of the protectorate in the Commissioner and Consul-General for
the time being and such other trustees as might be appointed, to be held in trust for her
Majesty. The Commissioner was empowered to make grants or leases of Crown lands on
such terms and conditions as he might think fit, subject to the directions of the Secretary
of State.18In 1902 the Commissioner promulgated the Crown Lands Ordinance which
provided for outright sales of land and leases of ninety-nine years duration.

In 1915 the Crown Lands Ordinance re-defined Crown lands so as to include land
occupied by native tribes, and land reserved by the Governor for the use and support of
members of the native tribes.19 It also made it clear that the Africans had no right to

and did not pertain to new grants. Today, most of these titles have been converted to either the RLA or into
the RTA.
16
Prior to the 1899 Law Officer’s opinion the British Government had already taken legislatives initiatives
to remedy the problem albeit for immediate purposes. In 1896 for example, the Indian Land Acquisition
Act 1894 was extended to the protectorate and this allowed the administration to acquire land compulsorily
for the railway, for government buildings, and for other public purposes. Further in 1897 the Land
Regulations was promulgated to draw a distinction between land within the Sultan’s dominions and land
elsewhere in the protectorate. These regulations modeled after the Imperial British Africa Company’s
(IBEAC) 1894 Land regulations were promulgated vide the Zanzibar Order-In –council for the ‘peace,
order and good governance in Kenya’. These regulations empowered the colonial government to sell land
freeholds within the Sultan’s dominions only. Elsewhere, only certificates occupancy were available.
Initially these were for 21 years and later for 99 years. The settlers were not satisfied with this state of
affairs. Some took to unorthodox means of acquiring land, for instance, by purchasing it from the locals.
This was in spite of the fact that the Natives had no title to the lands they occupied save for the right of
occupation. See the judgment in Mulwa Gwanobi v. Alidina Visram (1913) KLR 14
17
S.R.O. 661.
18
Crown land was defined as, ‘all public lands within the East Africa Protectorate which for the time being
are subject to the control of Her Majesty by virtue of any treaty, convention, Agreement, or of Her
Majesty’s Protectorate, and all lands which have been or may have hereafter be acquired by Her Majesty
under the Land Acquisition Act 1894 or otherwise howsoever’.

7
alienate any of the land, whether they occupied it, or it was reserved for their use.20 The
import of this Ordinance was, according to Ghai and McAuslan, the complete
disinheritance of Africans from their land.21 It must be further noted that the 1915 Crown
Lands Ordinance marked the onset of private individual land ownership in Kenya.

As such, by the time Kenya was declared a colony in 1920, the British had already
acquired full control of the Kenyan soil. In effect the colonial government had become
the allocator of land rights. Thus, throughout the colonial period, the British government
controlled the regime of property and conveyancing in Kenya. It is the system created by
the colonial regime that was inherited by the African Kenya government upon attaining
independence in 1963 and still obtains today albeit with slight amendments. The
maintenance of the colonial regime on land law and other factors is attributed to the
decolonization process itself.22 The process represented an adaptive, co-optive and pre-
emptive process which gave the new power elites access to the European economy.
Therefore:

(a) It had to be moulded in a way that allowed the settlers to adapt to the changed
economic and political situation by identifying new centres of influence that were
not overtly political;

19
Pursuant to section 25 thereof, the commissioner could grant settlers twenty-five hectares for purposes of
agriculture. He could go upto 7500 hectares with the approval of secretary of the state. In addition, he
could grant leases of agricultural land for a period of 999 years and for a period of 99 years in regard of
town plots. Further, the commissioner could subdivide any town plot for purposes of construction. Under
section 4 thereof, the commissioner could reserve from sale, lease or other disposal any piece of Crown
land that was required for use by natives. Notably, the natives who occupied these reserves were not vested
with any rights therein and could thus not purport to alienate them.
20
The view that Africans or natives could not hold any title to land was judicially endorsed by Justice Barth
in his notorious judgment as pronounced in the case of Wainaina V Murito (1922) 23 KLR Vol. IX,
102,where his lordship categorically stated that natives were tenants at the will of the Crown in respect of
the land they occupied.
21
Ghai and McAuslan
22
The Njonjo Report in this regard, rightly observes that, ‘it was expected that the transfer of power from
colonial authorities to indigenous elites would lead to fundamental restructuring of the legacy created by
the colonial masters. This however did not fully materialize. Instead what happened was a general, re-
retrenchment, hence, continuity of colonial land policies, laws, and administrative infrastructure.
Explanation for this lies primarily in the conduct of the decolonization process itself and the opportunity
which it accorded the new power elites to gain access to the European economy’. See Njonjo Report p. 30.
See also Wasserman, G., “The Independence Bargain: Kenyan Europeans and the Land Issue 1960-1962”
in Journal of Commonwealth Political Studies, 1973, vol II, No. 2.

8
 (b) It had to achieve the aim of socialising the new elite into the colonial political
economic and social patterns to ensure that the elite was able to rule functionally
on an inherited political structure and co-operate with outgoing rulers; and
(c) The process was geared towards preventing the mobilisation of a nationalist base
that would be opposed to continuation of colonial policies after independence.

For these reasons, it will be realized in the succeeding chapters that the theory and
practice of conveyancing in Kenya resembles the one that obtains in England in a myriad
of ways. However, while the system in England has over the years been refined to
capture societal developments, the one in Kenya have undergone very minimal
developments, if any.

1.4. LAND TENURE SYSTEMS IN KENYA

Land tenure refers to the terms and conditions under which access to land rights are
acquired, retained, used, disposed of, or transmitted. Tenure systems represent relations
of people in society with respect to the essential and often scarce land. 23 They are culture
specific and dynamic, changing as the social, economic and political situations of groups
change. Land tenure ordinarily has at least three dimensions namely, people, time and
space.24

In so far as people are concerned, it is the interaction between different persons that
determines the exact limits of the rights any one person has to a given parcel of land.
These rights are ordinarily not absolute since there are rules that govern the manner in
which the person with tenure is to utilise their rights. While the time aspect of tenure
determines the duration of one’s rights to land, spatial dimensions limit the physical area
over which the rights are to be exercised. The spatial dimension of tenure may be difficult
to delineate in exclusive terms since different persons may exercise different rights over
the same space at different times.25
23
See Lawry S. & Bruce J., 1987, Resource Tenure & Management of Natural Resources in Africa
24
Ibid.
25
See Fortmann L & Riddel J, (1985), Trees and Tenure: An Annotated Bibliography, Madison & Nairobi:
Land Tenure Center & International Council for Research in Agroforestry

9
It is imperative that one understands the land tenure systems obtaining in Kenya so as to
appreciate the different legal formalities available for the transfer of interests in land
under the different land tenure systems. The historical a events and patterns that have
impacted land law and conveyancing in Kenya, as discussed above, has yielded at least
three main systems of land tenure, viz, so called “modern” (individual) tenure, public
holding and customary (Group) tenure.26 In view of the fact that customary land tenure
has already been expounded above, it would only be logical that the same is not repeated
here.

1.4.1 Public Tenure

The system of public tenure stems from the idea or notion of the state as the owner of
radical title i.e. all land belong to the state.27Public tenure, therefore, designates the
Government as private landowner and follows the provisions of the Crown Lands
Ordinance of 1902 as subsequently amended and currently reflected and embodied in the
GLA.

Public tenure, therefore, is a province of Government land or public land. Government

land in Kenya is the land that was vested in the Government of Kenya by sections 204
and 205 of the Constitution that was contained in Schedule 2 to the Kenya Independence
Order in Council 1963 and section 21, 22, 25 and 26 of the Constitution of Kenya
(Amendment) Act 1964. Government land in turn comprises of two sub-categories i.e.
un-alienated and alienated Government land.

26
See Adam Leach, “Land Reform and Socio-economic Change in Kenya” in East Africa Journal of Peace
& Human Rights, vol 4, No. 1, 1998, pp, 41-69
27
The source of the medieval theory of land law was the Norman invasion of England in 1066. From this
point onwards the King considered himself to be the owner of all land in England. Since the Normans had
no written laws to bring with them to their newly conquered territory, what they created was effectively a
system of landholding in return for the performance of services. Thus came into being the classic feudal
structure. According to the feudal theory, all land was owned by the crown and was subject to the Crown
only upon the fulfillment of certain conditions. Land was never granted by way of an actual transfer of
ownership. Thus as Pollock and Maitland were later to say, ‘all land in England must be held of the king of
England, otherwise he would not be the King of all England. To wish for an ownership of land that shall
not be subject to royal rights is to wish for the state of nature.’ See The History of English Law (2 nd edn.,
London 1968), vol 2, 3.

10
Unalienated Government land refers to Government land which is not for the time being
leased to any other person or in respect of which the Commissioner of Lands has not
issued any letter of allotment. In other words, these are lands vested in the Government
and over which no private title has been created. The defining element of such lands is
that they have not been alienated, meaning given away or ceded by the Government to
another person or entity.

Alienated Government Land on the other hand, is land which the Government has leased
to a private individual or body corporate, or which has been reserved for the use of a
Government Ministry, Department, State Corporation or other public institution, or land
which has been set aside by way of planning, for a public purpose (this latter category is
usually referred to as public utility land). The defining element of alienated Government
Land is that it has been reserved for the use of a Government institution or it has been set
aside for the use of the public or it has been leased to an individual.

In summary, public land is all that land which is vested in the public or held under public
tenure.28 It means all the land in which every Kenyan has an interest by virtue of being a
member of the public.

1.4.2 Modern (Individual) Tenure

Today, ‘modern tenure’ forms the basis of official policy towards land in Kenya.
Individual tenure system owes its roots to colonial instruments that sought to propagate
ideals of agricultural production based on individual tenure system. The most significant
of these instruments was published in 1954 as A Plan to Intensify African Agriculture,
widely known as the Swynnerton Plan. This plan saw the problem of land in terms of
28
It has been argued that the concept of ‘public land’ was not alien to African customary tenure. In this
regard, public land, in customary law, fell under what are usually refereed to as “commons”, thus there was
territory which served the interests of the community in its corporate status. In this category were found
lands such as common pathways, watering points, grazing fields, recreational areas/grounds, meeting
venues, ancestral and cultural grounds, and many others. No individual or group could be allocated rights
of access to such public lands other than for purposes for which they had been set aside and recognized.
The community’s needs could not yield to private interests.

11
tenure and the technology of production. The problem was to be addressed firstly by the
creation of an indefeasible title, and secondly by intensification of agricultural production
in the native areas. The general expectation was that natives would be able to get
maximum returns from their farms and hence abandon the clamour for return of the land
taken from them by the Europeans.

The Swynnerton Plan was introduced as land tenure reform policy with the aim of
perpetuating land ownership centered on the individual. Customary tenure based on
ownership by the community was thought to tie up land in many hands hence serving as
an obstacle towards attainment of a free market. If high levels of investment were to be
achieved, then land ownership had to be “rescued” from the yokes of customary
ownership, so the argument went. Further, it was said that customary ownership created
insecurity and hence provided poor incentives for investment. Agricultural growth on the
contrary required the conversion of kinship-based systems of customary tenure, incapable
of being sold, to formal individual titles that could be exchanged freely in the market. 29
The report summarized the advantages of individual tenure system in the following
words:

‘individual tenure has great advantages in giving to the individual a sense

of security in possession and in enabling, by purchase and sale of land, an
adjustment to be made by the community from the present unsatisfactory
fragmented usage to units of an economic size. The ability of individuals
to buy and sell land by a process of custom opens the door to that mobility
and private initiative on which a greater sector of economic progress tends
to depend. The urban wage earner can sell his homeland plot which so
often the uneconomic one confident in the knowledge that he can buy
another when occasion demands. The specialist farmer is relieved of the
liability of providing a place for the subsistence of his clan relations.
Moreover, individual tenure should lead to the release and encouragement

29
See East African Royal Commission Report (1955) Cmnd 9475.

12
 of new genius and to new experiment in finding the most productive use
of land.’30

Predicated on these arguments, the Native Land Tenure Rules were promulgated in 1956
establishing a system of adjudication, consolidation and registration. Subsequently, the
Native Land Registration Ordinance was enacted to provide for individual ownership of
land upon registration. It was posited that the registration of private rights in land resulted
in more efficient use and conservation of the available land.31 Private title was supposed
to enable land to acquire a collateral feature so that it could be offered as security to
obtain credit, which could be channelled towards further improvement.

These laws are in no doubt the forerunner of the present system obtaining under the Land
Adjudication Act, the Land Consolidation Act and the RLA. The RLA, as will be seen,
currently embodies the individual tenure system with the effect that the registration of an
individual as the proprietor of land vests in that person an absolute title. As will be seen
later, the introduction of absolute proprietorships as a separate land tenure category by
the enactment of the RLA was intended to extinguish customary tenure and replace it
with rights that would be individually and exclusively held.

30
East African Royal Commission Report (1955) Cmnd 9475, paragraph 77, p. 32.
31
See Jean-Phillipe Platteau (2000), “Does Africa Need Land Reform” in C. Toulmin & J. Quan (eds),
Evolving Land Rights, Policy and Tenure in Africa, London, DFID/IIED/NRI, pp. 51-72

13
 CHAPTER TWO

THE LEGAL FRAMEWORK REGULATING CONVEYANCING IN

KENYA

2.0. INTRODUCTION

This chapter aims to examine the various pieces of legislation, which as already noted are
what constitute Kenya’s primary source of Property Law. This will serve to tie up the
prior discussion on the philosophical origins of colonialism, particularly when we
examine the actual reasons which led to the enactment of some of these statutes by the
colonial legislature, thus leading to what may be said to be the onset of administration of
property rights in Kenya.

As such the starting point ought to be a discussion on the Crown Land ordinances of 1902
and 1915 which served to facilitate the alienation of crown land by the colonial
government. However, these two pieces of law have already been looked into in Chapter
one and, therefore, the same will not be repeated herein. The discussion here, then, will
begin with the Registration of Documents Ordinance of 1915 running through to the
Registered Land Act of 1963.

2.1. The Registration of Documents Ordinance 1915 (Cap 285 Laws of Kenya)

This piece of legislation was enacted alongside the 1915 Crown Lands Ordinance. The
Registration of Documents Ordinance, (hereinafter the R.D.O.), set up Registries in
Nairobi, Mombasa and Malindi. This was done with a view to facilitate the registration
of documents relating to transactions involving alienated crown land. Subsequently, the
registries in Malindi and Naivasha were closed down and their registers transferred to
Nairobi and Mombasa.

14
It is noteworthy that the RDO was the very first registration statute in Kenya. It
introduced a simple system of registration which had been applied in Zanzibar before.
All documents registered pursuant to its provisions pertained to land which was the
subject of either 999 agricultural land leases which had been converted into freeholds by
the commissioner pursuant to his powers under the 1915 Crown Land Ordinance.

All surveys and consequent registrations under the RDO were based on the claims of
ownership of land submitted by the residents of the coast to the Recorder of Titles. Since
independence the RDO, or RDA (A for Act) as it is currently referred to, is applicable
only to unadjudicated claims at the Coast. However, it is noteworthy that major parts of
the Register kept pursuant to its provisions have been converted to the Registered Land
Act, (Cap 300) and the Registration of Titles Act (Cap 281) regimes of registration of
interests in land

2.2. The Lands Title Act (Cap 283 Laws of Kenya)

This Act, initially an ordinance32, was enacted in 1908 for purposes of facilitating
alienation of Crown Land at the Coast. The precise background to the enactment of the
Land Titles Act (hereinafter L.T.A.) lies in the fact that the colonial Government needed
to distinguish between private land and crown land situate within the ten (10) mile coastal
strip.33 It must be reiterated that this strip had been leased from the Sultan of Zanzibar
subject to the rights of the inhabitants, who were mostly Arab settlers.34
32
The Land Titles Ordinance 1908
33
Prior to the enactment of the 1908 Ordinance, the British authorities had assumed jurisdiction over
the ten-mile coastal strip, which was before then under the suzerainty of the Sultanate of Zanzibar, by
virtue of an Administrative Agreement entered into in 1895 with the Imperial British East African
Company (IBEAC) transferring control over lands ceded to the latter by virtue of the concession
Agreement signed in 1888 with the Sultan. Under that Agreement, all rights to land in the Sultan’s territory,
except private lands, were ceded to the company. See Sorrenson, M.P.K., The Origins of European
Settlement in Kenya, Oxford University Press, London, 1968
34
The land problems that have incessantly visited the coastal region have been linked to the 1908
Ordinance. According to the report of a Parliament Select Committee released in 1978, ‘adjudication of
claims under the 1908 Ordinance (was), the primary cause o landlessness by indigenous people in the ten-
mile strip as we know it today. For it ruled out the possibility that these people and sections non-Mazrui
Arab communities could ever acquire title or guaranteed access to land during the colonial period. The
reasons why most indigenous coastals made no claim as required by the Ordinance are not difficult to
understand. First of all, the indigenous people of the strip had no knowledge of the existence of the
Ordinance. Even if they did, they never understood its provisions. Secondly, the Ordinance had no
relevance to indigenous conceptions o land tenure. That they should be asked to lay claims upon the soil

15
Those individuals who successfully claimed private land were issued with Certificates of
Ownership giving freehold title or Certificates of Mortgage or Interest covering lease
holds depending on the nature of title adjudicated. The titles issued under the LTA did
not create new rights, they only confirmed existing rights thus they did not in any way
pertain to Government grants. Further, under the LTA, the Registrar was known as the
“Recorder of Titles” and the procedure of adjudicating private claims to land was
borrowed from an Act of Ceylon.35 Lastly, it must be pointed out that any plot, which was
not successfully claimed by private individuals, was vested in the colonial government
and upon independence, in the Kenya Government.

2.3. The Registration of Titles Act (Cap 281 Laws of Kenya)

This statute was enacted in 1920 whereupon all successfully claimed plots were
registered under it. Thus to date any titles adjudicated in 1920 and thereafter are
registered under the Registration of Titles Act (hereinafter the RTA) unless they have
been converted to Registered Land Act (Cap 300) titles.

It is worth noting that when the LTA had been enacted in 1908, it had been expected that
the process of adjudication of claims would be completed within a short time.
Unfortunately, this was not to be so, and the office of the Recorder of Titles was
eventually closed down due to lack of funds in 1922. Therefore, the RTA was enacted
principally for the purpose of improving the issuance of titles to land as well as regulating

was a startling proposition. Thirdly, the Ordinance was clearly biased against these people. For the colonial
government and courts believed that no African, whether as an individual or a community had any title to
land. Hence for purposes of the 1908 and other colonial land ordinances land occupied by Africans was
always treated as ownerless. Fourthly, the actual investigation o claims was done mainly by Mudirs-
usually Mazrui Arabs absorbed into colonial administration- who were generally unsympathetic to the
indigenous people. Fifthly, the time limit within which claims could be made was extremely short. And
indeed after 1922 claims would no longer be received at all. …sixthly, because the Ordinance had
introduced a basically British conception of land, i.e. that whatever is attached to the land becomes part o
that land, these people also lost whatever rights to the product of the soil, e.g. coconuts etc. that they may
have had under Muslim law and their own customary law...’Report of the Select Committee on the Issue of
land Ownership along the Ten-Mile Coastal Strip of Kenya, Government Printer, 1978
35
Act No.30 of Ceylon

16
transactions in the same. It was modelled upon the Registration of Title enactment of the
Federal Republic of Malaya and the Transfer of Land Act, 1890 of Victoria.

Apart from introducing a form of title registration based on the Australian Torrens system
of title registration, the RTA also introduced conveyancing by statutory form. Lastly it
ought to be noted, this Act relates to all land granted by the Government or subject to the
Certificates of Ownership, Mortgage or Interest issued by the Recorder of Titles under
the LTA. In addition, it also applies to all leaseholds which have been converted from
the terms of 99 years since 1920 (or even 999 years) to freeholds and to any titles
converted on a voluntary basis from the Government Land Act, (Cap 280) or LTA
registration to RTA Titles.

2.4. The Indian Transfer of Property Act 1882

Basically, the LTA, RDO and the RTA were registration statutes. They only provided
for the registration of ascertained interests in land but not the manner of dealing or
transacting in the said interests. In a nutshell, as at the time of the enactment of the said
statutes, there was no general substantive law governing the conduct of proprietary
transactions or conveyancing, as they are commonly known.

Naturally it follows that the concept of title was alien to the Kenyan legal system as it
obtained then. This state of affairs was addressed vide recourse to Article 11(b) of the
1897 East Africa Order-in-council. This article allowed the application of the 1882
Indian Transfer of Property Act to Kenya. This Act, (hereinafter referred to as the ITPA)
was applied in Kenya as a substantive law, principally for the purpose of catering for the
interests of European Settlers.36

To date, the ITPA (1882) is still the main substantive law governing transactions in land
concluded under the LTA and the Government Lands Act (Cap 300) hereinafter referred
to as the GLA. However, it must be pointed out that the ITPA (1882) had inherent
shortcomings, the greatest being that it was neither a conveyancing nor a registration
36
The ITPA should be read in conjunction with the Indian Act (Amendments) Ordinance (Cap. 2 (1948))

17
statute. This deficiency in the ITPA (1882) made it necessary for documents relating to
transactions to be drawn in accordance with the provisions of the English (1845) Real
Property Act and the 1881 Coveyancing Act of Victoria.

Clearly, there was a burning need for a substantive enactment. Hence the Registered
Land Act (Cap 280) was eventually to function as a substantive conveyancing and
registration statute. Before dealing with this legislation, however, it is deemed important
to deal first with the Government Lands Act (Cap 280 Laws of Kenya).

2.5. The Government Lands Act (Cap 280 Laws of Kenya)

This enactment is no doubt a replacement of the 1915 Crown Lands Ordinance. It was
enacted to make further and better provisions for regulating the leasing and other
dispositions of Government Land and related issues. Under this Act, only the President
can sign documents granting title. The President can and has delegated his powers to the
Commissioner of Lands. The GLA lays down the procedures the Commissioner of Lands
must follow in allocating land.

In addition, it abolished the compulsory registration required under the RDA in respect of
transactions relating to unalienated Government Land. Basically, this Act governs all
freeholds and leasehold interests granted by the Government prior to 1920, with the
exception of leaseholds converted to 999 years or to freeholds under the RTA.

2.6. The Registered Land Act (Cap 300 Laws of Kenya)

The Registered Lands Act was enacted in 1963 with the aim of achieving two policy
objectives. First, it sought to enable land by Africans to be registered under the law. In
this regard it provided that ‘all land that was consolidated or adjudicated in the African
reserves and then offered to the Africans for settlement in the settlement schemes would
be registered under it.37 Secondly, it aimed at simplifying and unifying the registration
37
The phenomenon of African reserves (and indeed the RLA) owes its roots to the Native Lands Trust
Ordinance. It was enacted after Africans had demanded the return of their land and expressed their
insecurity with regard to the land they occupied. As can be expected, this statute was interpreted by

18
process which, at the time, was spread between the above-mentioned statutes. It provided
for the conversion of a registration under any of the other statutes into a registration
under its provisions.

The policy objectives behind the enactment of the RLA were ignited by the problems that
attended the GLA, RTA and the ITPA. The GLA and RTA were limited only to the
registration of title to land. They did not provide for the procedure through which
interests in land registered under them would be conveyed. The ITPA which was meant
to serve this purpose was subsequently found not to be meritorious.

In this light, it repealed the Land Registration (Special Areas) Act save for its
adjudication and consolidation provisions. The Land Registration (Special Areas) Act
had been enacted in 1959 shortly after the enactment of the Native Lands Registration
Ordinance, both of which were focused on recognizing and registering the claims of
Natives to land under customary law

colonial courts as giving the Natives rights of perpetual possession with respect to the reserves they
occupied, subject to the power of the Governor to expropriate the same for public purposes (see Kalabri v.
A.G. 1938 18 KLR)

19
2.7. The Land Control Act (Cap 302 Laws of Kenya)

The land Control Act was enacted in 1967 with an aim of regulating, by means of public
control, the manner in which the landowner or the interest in land is supposed to deal
with his land. It owes its origin to the Land Control Ordinance of 1944. This Ordinance
put an end to the exclusive Europeans dealing in land as was earlier envisaged by the
Crown Lands Ordinance of 1902 and 1915. It ensured that only those who were capable
of developing land could own it. This was perhaps necessitated by the fact that the
Second World War, had caused a dwindle in farm production as farms were neglected. It
was therefore necessary to take steps to ensure that land would be used for the benefit of
the country.

The land tenure committee appointed in 1941 recommended that ‘any system of land
tenure would be unsatisfactory which permitted unrestricted transfer and unrestricted use
and misuse of land.” The 1944 Ordinance, therefore, established a Land Control Board
whose consent had to be obtained before any transaction in land was seen as valid. The
Board was given power to impose conditions as to the development of land and failure to
comply with these conditions would lead to one’s forfeiture of his land. The membership
of the board comprised of the Commissioner who was the chairman, a finance secretary,
a director of agriculture and six other persons. Appeals were to the land Control Appeals
Tribunal whose decision was final. The 1944 Ordinance was only for the control of land
in the ‘white highlands.’

After Second World War, the administrators saw the African Reserves as productive
units and wanted to encourage the growing of cash crops. They therefore needed a
change from communal land ownership to individual land tenure. In advocating for this,
Swynnerton stated that Africans “must be provided with security of tenure through an
indefeasible title as will encourage him to invest his labour and profits towards
development of his farm as will enable him to offer it as security against such financial
credit as may be open to him.” The idea was further developed by the East African Royal

20
Commission which suggested that for the Africans to develop their land, they needed to
own it individually.

There was therefore needed a system to control productivity of the land. The
recommendations of the two groups formed the basis of land registration and land
control. The aim was to prevent the Africans after registration from sub-dividing, selling
and living on the land without adequately developing it. These were the reasons for the
enactment of the 1959 Land Control (Native Lands) Ordinance. It provided for
establishment of Divisional and Provincial Land Control Boards without whose consent
dealings in land would be void. Under this Ordinance, all transactions in land were to be
controlled except three types of transactions: transmissions of land unless it involved
sub-division; foreclosures; and transactions made in favour of the Government of Trust
Board. Consent would not be granted to any transaction which would cause the creation
of smaller pieces of land and reduce productivity.

At independence, the provisions of the 1944 and 1959 Ordinances were incorporated in
the Kenya (Land Control) Transitional Provisions Regulations 1963. These regulations
were to serve until provisions could be made by law. These rules served from 1963 to
1967 when the Land Control Act (Cap 302) was enacted. This Act however did not
depart from the system that had earlier existed except with regard to the composition of
the Board and the application of the Act to most areas of the country. It is under this Act
that the regime of land control in Kenya is today embodied. Its salient provisions and
judicial application will be discussed in depth under Chapter Eight of this book.

It is important to note that the above-discussed Acts of Parliament are the main statutes
that largely impact on the theory and practice of conveyancing in Kenya. However, there
are other numerous pieces of legislation that in one way or another are significant to a
fuller and complete understanding and practice of conveyancing in the country. They in
particular deal with a specific aspect of conveyancing. These statutes include, amongst
others, the following:

21
 • Sectional Properties Act No. 12 of 1987.
• Physical Planning Act 1996 and Regulations, (Cap 286).
• Local Government Act, (Cap 265).
• Stamp Duty Act, (Cap 480).
• Landlord and Tenants (Shops, Hotels and Catering Establishments) Act, (Cap
301).
• Companies Act, (Cap 486)
• Rent Restrictions Act, (Cap 286).
• Auctioneers Act No. 5 of 1996.
• Law of Contract Act (Cap 23).
• The Land Disputes Tribunals Act, 1990.
• The Distress for Rent Act, (Cap 293)
• Land Trusts Act (Cap 290)

The relevance of these statutes to conveyancing in Kenya has been discussed herein
under the various chapters that embody this book. In conclusion, it must be noted that the
multiple statutes (more than fifty) that regulate conveyancing in Kenya are an
embodiment of many principles that, are foreign, and have their origin in the history and
traditions of England. The Acts lack uniformity due to the fact that they were enacted in
the absence of a coherent land policy and were essentially aimed at addressing specific
interests and issues at different times in history. Nevertheless, he who must understand
and practice conveyancing in Kenya must be well versed with the provisions of the entire
legal framework that regulates conveyancing in the country. Only then will one find that
there is no magic in the word conveyance. 38 The relevance of studying the legal
framework behind conveyancing has been well elaborated by Kenny and Hewitson as
quoted in the paragraph below:

‘Land law, Trusts, Succession and Conveynacing- these are names to strike terror
into the hearts of students…the subjects become clearer and more interesting not

38
See supra n. 6.

22
 by mastering a superficial guide but by coming to grips with the intricate and
enthralling detail of each subject of property law. Very much of this law detail is
contained in statute law. The good property lawyer is framework. This familiarity
and confidence can come only from frequent reading and use of the statutes. It
would be hard to claim that anyone of these statutes is, taken as a whole, well or
coherently drafted and their study presents difficulty, but not studying them leaves
property law opaque. When statutory framework is monitored the case law
becomes more accessible. The complex picture of…property law begins to move
into focus. Soon its study and practice will be enjoyed.’39

39
P.H. Kenny & R. Hewitson, Butterworths student Statutes -Property Law, Butterworths, London, 1994,
p. v

23