Land

This is the unit that covers land law
Why Segregate Land Law?

• It is the most important means of production
• Land is constant
• Sensitivity of land policies in Kenya
• Myriad of Laws and issues that are land specific
• Land is not within human capacity 
• Land can not be destroyed
• Land is immovable

Land includes;

• The surface of the earth
• Any water body on or under surface
• Marine waters in the territorial sea
• Natural resources contained on or under the surface
• Airspace above the surface

Immovable property includes land whether covered by water or not, any estate, right, interest or easement in or over any land and things attached to the earth or permanently fastened to anything attached to the earth.

Chattels affixed to the land or a building are part of the land, they lose the character of chattels and become fixtures
This is in line with the maxim that states whatever is planted on(built) the soil goes with the soil
whoever owns the soil, it is theirs all the way to heaven and down to hell.

Fixtures;

• Must be fastened to the land
• Incapable of being removed without losing its identity 

In the yardstick case of Holland v Hodgson it was held that where stones are laid one upon another for purposes of forming a wall they become fixtures but where they are deposited in a yard for convenience stacked one on top of another then they are not fixtures

Closer home in The case of Julius Mutuma Muchene v Mwerera M'talakua  Land on which some trees had been planted was sold to the defendant , the plaintiff came back when harvest season had reached and wanted to cut down the trees citing that it was the land that had been bought and not the trees. The appellate Court held that the trial judge erred in separating the trees from the land and that when the land was sold it went with the trees.

Land Ownership and Capacity
It draws similarity from the laws of contract

• Infants: Incapable of dealing with property except where the dealing is a necessity.They are unable to hold land on their own except under trusteeship however they may enjoy interests in land
• Married Women: In Common law they were unable to hold land as the wife and husband were perceived as one however the tides have changed and pursuant to the principles of land ownership that are engraved in Article 60 of the Kenyan Constitution and the Matrimonial Property Act they are now able to hold land
• Lunatic/Persons of unsound mind: they require a guardian to deal with the property on his behalf and in the event of a suit initiated through the next friend.
• Artificial Persons: these are incorporate by law and made up of a group of persons who come together.

 Land Administration in Kenya

Pre-Colonial Period

• Land was administered in groupings of tribes 
• It was not political as it was based on the economic activity practiced
• It was communally owned
• Labor was provided by families for subsistence farming
• Any extra was sold to tribes in exchange 
• Individuals did not accumulate wealth

Colonial Period

• In 1895 Kenya was declared a protectorate of the Crown, In 1877 the East African Land Regulations was passed and this assisted the colonial government to dispossess natives land and give to Europeans
• Land alienation was by force and communities that lost their land were never compensated 
• They were resettled in other peoples land thereby creating ethnic tension
• The Lands Acquisition Act had been passed in 1894 and this gave the crown power to take land for the construction of the railway,all alienated land became crown land
• In 1902 the Crown Lands Ordinance was passed and this vested the commissioner with power to sell any vacated land to Europeans as freeholds or leaseholds
• In 1915 the second Crown Lands Ordinance was passed and this declared all land to be crown land and the commissioner could lease land for up to 999 years.The natives were now taken to reserves

The colonial land policies led to:

• Acute land shortage
• Landlessness
• Discontent
• Formation of political parties along tribal lines
• Rebellions for example Mau Mau and Maji Maji

The colonial government in order to create security of ownership sought to replace the communal land ownership with individual ownership

Independence and thereafter;

• Limited redistribution that benefited very few Kenyans
• Prime minister acted as the crown
• The President went on to allocate large tracts of land to his loyalists, ministers and family
• There were irregular allocations in forests and public land
• The regulatory framework for land was unsatisfactory

Before the 2010 Constitution there was a multiplicity of land laws, these included:

• Registration of Documents Act 1901
• Land Titles Act 1908
• Government Lands Act 1915
• Registration of Titles Act
• 1882 Indian Transfer of Property Act
• Registered Lands Act 1963
• Land Adjudication Act 1968

But they were all replaced to:

• Land Act 2012
• Land Registration Act
• National Land Commission Act

Challenges to Land:

• Clash of land tenure systems( Communal and Individual)
• Multiplicity of laws that results in inconsistency and duplication
• Excessive powers of executive over land
• Multiplicity of registers that were expensive
• Overlap of duties among officers

References:

P.L Onalo, Land Law and Conveyancing in Kenya

T.Franchesci and P.L.O Lumumba, the Constitution of Kenya