Introduction to Conveyancing

Conveyancing is the art or science of preparing documents and investigating title in connection with the creation and assurance on interests of interests in land. Despite its connection with the word ‘conveyance’, the term in practice is not limited to use in connection with old system title but is used without discrimination in the context of all types of title[1].

In many ways conveyancing is like Shakespeare’s character, Autolycus in The Winter’s Tale, a ‘snapper-up of unconsidered trifles’. Like this amiable rogue, conveyancing takes from here, there and everywhere from within the full gamut of the law. Conveyancing rests and has been built upon the three foundations of land law, contract law, and equity and trusts[2]’

Stemming from the understanding that land law is that part of the general law that regulates the allocation of rights and obligations in relation to ‘real’ (or immovable) property, conveyancing has been regarded as ‘the application of the law of real property in practice’[3]

As concerns contract law, the link between the two (conveyancing and contract law) is reflected in the fact that conveyancing is about the transfer of title and these transfers are in the first instance made by contract. In essence, any transfer of land must first be preceded by a sale agreement which must be reducing in writing in the form of a contract between the vendor and the purchaser[4]

On a third front, the link between conveyancing and equity and trusts is anchored on the fundamental distinction of interests in land as either being legal or equitable.  This distinction largely defines the transfer of title or interests in land and the rights and obligations that flow therefrom[5]

The Law of property in land no doubt, emerged hot on the heels of the emergence of civil society.   On its part, the emergence of civil society was according to one author precipitated by the birth of the concept of property ownership[6]. It is written that the first person having enclosed a piece of ground, bethought himself saying, “this is mine” and found a people simple enough to believe him, was the real founder of civil society[7]

The Concept of Property

From a legal perspective, property is the network of legal relationships prevailing between individuals in respect of things.  In the lawyer’s eyes, ‘property’ is the bundle of mutual rights and obligations between ‘subjects’ in respect of certain ‘objects’. It is a relationship rather than a thing. It is a relationship that arises when subjects acquire proprietary rights in or over an object, the nature of which varies from right to right[8].

In the same vein, Bentham explains that property is a legally protected ‘expectation…of being able to draw such or such an advantage from the thing in question according to the nature of the case.’  As such, the law of property is not so much concerned with ‘things’, it is more concerned with the relationships between individuals in respect of ‘things’[9].

Ownership, Possession and Title

The most predominant right a person can have in a thing is the right of ownership.  The Roman law treats the idea of ownership as the right to enjoy and dispose of something in an absolute manner and equated it to dominium. It analyses ownership (and possession) as an absolute jural relationship between a person and a thing[10].

English law does not treat ownership as an absolute concept but as a form of possession or seisin.

The understanding and definition of possession largely remains contentious.  It however said to be is a de facto relationship between a person and a thing. It is a question of fact. To mankind possession of things is an important aspect of life. Without possession of things in the world it is questionable whether a person has any liberty or security[11].

Title is the set of facts upon which a 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. Title to a proprietary interest can be either absolute or relative. In the common law tradition titles are more relative than absolute. An absolute title in property law is one which is indefeasible[12].

The foundation 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[13].

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[14]. 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[15].

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[16]

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.   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.  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[17].

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[18]. 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 Council 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. In 1902 the Commissioner promulgated the Crown Lands Ordinance which provided for outright sales of land and leases of ninety-nine years duration[19].

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.  It also made it clear that the Africans had no right to alienate any of the land, whether they occupied it, or it was reserved for their use.  The import of this Ordinance was, according to Ghai and McAuslan, the complete disinheritance of Africans from their land.  It must be further noted that the 1915 Crown Lands Ordinance marked the onset of private individual land ownership in Kenya[20].

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[21].

The maintenance of the colonial regime on land law and other factors is attributed to the decolonization process itself.  The process represented an adaptive, co-optive and pre-emptive process which gave the new power elites access to the European economy.

Land Tenure Systems

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[22].

Public Tenure

Public tenure is a province of Government land or public land. It is all that land which is vested in the public or held under public tenure.  It means all the land in which every Kenyan has an interest by virtue of being a member of the public[23].

Individual Tenure

Individual tenure system owes its roots to colonial instruments that sought to propagate ideals of agricultural production based on individual tenure system. In 1954, a Plan to Intensify African Agriculture, widely known as the Swynnerton Plan was hatched. This plan saw the problem of land in terms of 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[24].

The Swynnerton Plan was introduced as land tenure reform policy with the aim of perpetuating land ownership centered on the individual. 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[25].

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