PROPERTY AND LAND LAW
Table of Contents
DEFINITION OF TERMS
PROPERTY AND LAND LAW
INTRODUCTION
ACCESSING LAND RIGHTS IN KENYA
o LESASEHOLD TENURE
o COVENANTS IN A LEASE
LESSOR
LESSEE’S COVENANTS
o REMEDIES OF THE LESSOR IN THE EVENT OF DEFAULT BY THE LESSEE
Forfeiture
Distress for rent
Action for recovery of rent
o TERMINATION OF THE LEASE
o FREEHOLD TENURE
o PUBLIC LAND
o PRIVATE LAND
o CUSTOMARY LAND
o METHODS OF ACCESSING OWNERSHIP TO LAND
o Allocation of Public Land
o Procedure for Acquiring Title after Allocation of Public Land
o LAND ADJUDICATION PROCESS
o THE LAND ADJUDICATION PROCESS
o SETTLEMENT SCHEME PROGRAMME
o CONVENTIONAL SALE AGREEMENT (WILLING BUYER, WILLING SELLER)
o Land is sold as a whole
o Where vendor/seller has no title
o Acquisition of title through Inheritance/Succession
o Land Succession Procedure
I. Acquisition of Death certificate:
II. Petition through Valid will to the High Court:
III. Intestate Procedure
IV. Filling of Petition for letter of administration intestate (Form P&A 80):
V. Filling of Affidavit in support of petition for letter of administration intestate (Form
P&A 5)
VI. Guarantee by Personal Sureties ( Form P&A 57)
VII. Notice in Kenya Gazette
VIII. Grant of letters of administration intestate (Form P&A 41)
IX. Sworn affidavit by petitioner requesting for confirmation of grant
, X. Notice of motion to hear the application for confirmation of grant
XI. Certificate of confirmation of grant issued under Cap 160 section 7(1) and (3) (form
P &A 54)
XII.Transfer of the estate to the administrator ( Form RL 19)
XIII. Transfer of personal representative to persons entitled under a will or on an
intestacy (Form RL 7)
o SUCCESSION PROCEDURE WHEN TITLE IS LOST/NEVER ISSUED
GAZETTE NOTICE NO—–
LAND REGISTRATION ACT 2012 REGISTRATION OF INSTRUMENT
ACQUISITION OF TITLE UNDER UNIQUE CIRCUMSTANCES
o Adverse Possession
o Compulsory Acquisition
o THE PROCESS OF COMPULSORY ACQUISITION,
What is just compensation?
Rights of the Proprietor of Land under Compulsory Acquisition
Title for Public Facilities
LAND SUBDIVISION AND SURVEY
o
Restraints on Dispositions (Rights in Alieno Solo)
Cautions
Restrictions
Inhibitions
LOSS OF LAND DOCUMENTS
OVERRIDING INTERESTS
CHARGES
The Doctrine of Priority in charges
Exceptions to the doctrine of priority
o RIGHT TO VARY DIFFERENT ASPECTS IN A CHARGE INSTRUMENT
Right to discharge
COVENANTS IMPLIED IN EVERY CHARGE INSTRUMENT THAT BINDS THE
CHARGOR (BORROWER)
o
Remedies available to the chargee (Lender)
o CHARGEE’S POWER OF SALE
LAND DISPUTE RESOLUTION PROCEDURES AND PROCESSES
o FORMAL METHODS OF LAND DISPUTE RESOLUTION
Land Dispute Tribunals
Land and Environment Court
Alternative Dispute Resolution Mechanisms
DEFINITION OF TERMS
Absolute title: an indefeasible title in the sense that there is no one else who can point to a
better title in respect of the same object in which a proprietary interest is held.
,Adverse possession: the acquisition of interest/title in land by operation of the limitation of
actions statute or by effluxion of time.
Alienation: the power of an owner to dispose of any interest in land or property; the act of
disposing one rights or interest in a property; sale or disposal of interests in land.
Allocation of land: Refers to the process of allocating public land to an individual or business
enterprise by the government or its agency; legal process of granting rights to public land by
the government or state agencies.
Allotment: an allocation of land by the Commissioner of Lands to a selected person through a
letter of a letter of offer
Allottee: one who is granted an interest in land by the Government through an allotment.
Charge: A title/interest in land or lease that has been used to guarantee repayment of
borrowed or loaned money. Simply using a title deed or lease document as security for a loan
Collateral: security for a loan, additional to principle security.
Compulsory acquisition: means the power of the State to deprive or acquire any title or other
interest in land for a public purpose subject to prompt payment of compensation.
Consideration: the price paid or value given by a purchaser for land or a right in land.
Controlled tenancy: a tenancy for a shop, hotel or catering establishment as defined by
section 2(1) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) (Cap
301 laws of Kenya).
Customary law: unwritten law established by long usage. Sometimes this law is called
traditional law or indigenous law.
Customary tenure: the holding of land in accordance to customary law; also Refers to land
rights that are governed through customs and traditions of a people.
De-facto land holding: refer to ownership by fact or by common knowledge by people; may
also be referred to as ownership in reality, in actual existence or by actual possession or as a
matter of fact. Ratification of ownership through adjudication or adverse possession is
actually preceded by this type of ownership.
Dejure land holding: holding land by right according to the law or ownership that is derived
from lawful means. People who hold dejure rights own the land by virtue of a legally
recognizable title to that land.
Development: carrying out of any works on land or making any material change in the use of
any structures on land.
Disposition: means any sale, charge, transfer, grant, partition, exchange, lease, assignment,
surrender, or disclaimer and includes the disclaimer or the creation of an easement, a
unsufructuary right, or other servitude or any other interest in a land or a lease and any other
, act by the owner of land or under a lease where the owner’s rights over that land or lease are
affected or an agreement to undertake any of the dispositions;
Distress for rent: the right of the landlord to remove certain goods or chattels from the
possession of the tenant in order to compel him to pay the rent due;
Easements: These are partial interest on land and property which give a person a right of use
of another person’s land and property without any profit or a public right of way; a non-
possessory interest in another’s land that allows the holder to use the land to a particular
extent, to require the proprietor to undertake an act relating to the land, or to restrict the
proprietor’s use to a particular extent, and shall not include a profit.
Encumbrance: a right to or an interest in land that belong to someone other than the person
having the benefit of the right or interest, which represents a burden on the land.
Forfeiture: a right to regain possession of leased or mortgaged premise, if the tenant or
borrower breaches conditions contained in the agreement.
Freehold: Ownership of land and property without limit of number of years. Freehold is the
greatest interest in land and property a person can have and gives the owner absolute
ownership.
Holding: “In relation to tenancy”, means the property under the tenancy.
Instrument: A document which creates or effects legal or equitable rights and liabilities.
Interest: Means a right in or over land and property.
Land administration: process run by the government using private or public sector agencies
related to land tenure, land value, land use, and land development.
Land register: This is the systems by which matters concerning ownership, possession or
other rights in land can be recorded to provide evidence of ownership through a title.
Land Surveyors: Professionals who survey land and properties to identify their location and
boundaries. Their work helps in issuance of titles. They are registered by the Land Surveyors
Board (LSB) and full members of Institution of Surveyors of Kenya.
Land tenure: The relationship between people as individuals or groups, with respect to land.
Refers to the way in which land rights are held; or simply, the manner of holding rights in and
occupying land.
Land title: documentary evidence of a person’s right in land or ownership or ownership itself
depending on context.
Land value: the worthy of a property, determined by a variety of ways to give an approximate
estimate of the value.
Land: “land” means the physical location of a property or part of a property; Surface of the
earth, the material beneath, the air above it and the things fixed to the soil.
Table of Contents
DEFINITION OF TERMS
PROPERTY AND LAND LAW
INTRODUCTION
ACCESSING LAND RIGHTS IN KENYA
o LESASEHOLD TENURE
o COVENANTS IN A LEASE
LESSOR
LESSEE’S COVENANTS
o REMEDIES OF THE LESSOR IN THE EVENT OF DEFAULT BY THE LESSEE
Forfeiture
Distress for rent
Action for recovery of rent
o TERMINATION OF THE LEASE
o FREEHOLD TENURE
o PUBLIC LAND
o PRIVATE LAND
o CUSTOMARY LAND
o METHODS OF ACCESSING OWNERSHIP TO LAND
o Allocation of Public Land
o Procedure for Acquiring Title after Allocation of Public Land
o LAND ADJUDICATION PROCESS
o THE LAND ADJUDICATION PROCESS
o SETTLEMENT SCHEME PROGRAMME
o CONVENTIONAL SALE AGREEMENT (WILLING BUYER, WILLING SELLER)
o Land is sold as a whole
o Where vendor/seller has no title
o Acquisition of title through Inheritance/Succession
o Land Succession Procedure
I. Acquisition of Death certificate:
II. Petition through Valid will to the High Court:
III. Intestate Procedure
IV. Filling of Petition for letter of administration intestate (Form P&A 80):
V. Filling of Affidavit in support of petition for letter of administration intestate (Form
P&A 5)
VI. Guarantee by Personal Sureties ( Form P&A 57)
VII. Notice in Kenya Gazette
VIII. Grant of letters of administration intestate (Form P&A 41)
IX. Sworn affidavit by petitioner requesting for confirmation of grant
, X. Notice of motion to hear the application for confirmation of grant
XI. Certificate of confirmation of grant issued under Cap 160 section 7(1) and (3) (form
P &A 54)
XII.Transfer of the estate to the administrator ( Form RL 19)
XIII. Transfer of personal representative to persons entitled under a will or on an
intestacy (Form RL 7)
o SUCCESSION PROCEDURE WHEN TITLE IS LOST/NEVER ISSUED
GAZETTE NOTICE NO—–
LAND REGISTRATION ACT 2012 REGISTRATION OF INSTRUMENT
ACQUISITION OF TITLE UNDER UNIQUE CIRCUMSTANCES
o Adverse Possession
o Compulsory Acquisition
o THE PROCESS OF COMPULSORY ACQUISITION,
What is just compensation?
Rights of the Proprietor of Land under Compulsory Acquisition
Title for Public Facilities
LAND SUBDIVISION AND SURVEY
o
Restraints on Dispositions (Rights in Alieno Solo)
Cautions
Restrictions
Inhibitions
LOSS OF LAND DOCUMENTS
OVERRIDING INTERESTS
CHARGES
The Doctrine of Priority in charges
Exceptions to the doctrine of priority
o RIGHT TO VARY DIFFERENT ASPECTS IN A CHARGE INSTRUMENT
Right to discharge
COVENANTS IMPLIED IN EVERY CHARGE INSTRUMENT THAT BINDS THE
CHARGOR (BORROWER)
o
Remedies available to the chargee (Lender)
o CHARGEE’S POWER OF SALE
LAND DISPUTE RESOLUTION PROCEDURES AND PROCESSES
o FORMAL METHODS OF LAND DISPUTE RESOLUTION
Land Dispute Tribunals
Land and Environment Court
Alternative Dispute Resolution Mechanisms
DEFINITION OF TERMS
Absolute title: an indefeasible title in the sense that there is no one else who can point to a
better title in respect of the same object in which a proprietary interest is held.
,Adverse possession: the acquisition of interest/title in land by operation of the limitation of
actions statute or by effluxion of time.
Alienation: the power of an owner to dispose of any interest in land or property; the act of
disposing one rights or interest in a property; sale or disposal of interests in land.
Allocation of land: Refers to the process of allocating public land to an individual or business
enterprise by the government or its agency; legal process of granting rights to public land by
the government or state agencies.
Allotment: an allocation of land by the Commissioner of Lands to a selected person through a
letter of a letter of offer
Allottee: one who is granted an interest in land by the Government through an allotment.
Charge: A title/interest in land or lease that has been used to guarantee repayment of
borrowed or loaned money. Simply using a title deed or lease document as security for a loan
Collateral: security for a loan, additional to principle security.
Compulsory acquisition: means the power of the State to deprive or acquire any title or other
interest in land for a public purpose subject to prompt payment of compensation.
Consideration: the price paid or value given by a purchaser for land or a right in land.
Controlled tenancy: a tenancy for a shop, hotel or catering establishment as defined by
section 2(1) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) (Cap
301 laws of Kenya).
Customary law: unwritten law established by long usage. Sometimes this law is called
traditional law or indigenous law.
Customary tenure: the holding of land in accordance to customary law; also Refers to land
rights that are governed through customs and traditions of a people.
De-facto land holding: refer to ownership by fact or by common knowledge by people; may
also be referred to as ownership in reality, in actual existence or by actual possession or as a
matter of fact. Ratification of ownership through adjudication or adverse possession is
actually preceded by this type of ownership.
Dejure land holding: holding land by right according to the law or ownership that is derived
from lawful means. People who hold dejure rights own the land by virtue of a legally
recognizable title to that land.
Development: carrying out of any works on land or making any material change in the use of
any structures on land.
Disposition: means any sale, charge, transfer, grant, partition, exchange, lease, assignment,
surrender, or disclaimer and includes the disclaimer or the creation of an easement, a
unsufructuary right, or other servitude or any other interest in a land or a lease and any other
, act by the owner of land or under a lease where the owner’s rights over that land or lease are
affected or an agreement to undertake any of the dispositions;
Distress for rent: the right of the landlord to remove certain goods or chattels from the
possession of the tenant in order to compel him to pay the rent due;
Easements: These are partial interest on land and property which give a person a right of use
of another person’s land and property without any profit or a public right of way; a non-
possessory interest in another’s land that allows the holder to use the land to a particular
extent, to require the proprietor to undertake an act relating to the land, or to restrict the
proprietor’s use to a particular extent, and shall not include a profit.
Encumbrance: a right to or an interest in land that belong to someone other than the person
having the benefit of the right or interest, which represents a burden on the land.
Forfeiture: a right to regain possession of leased or mortgaged premise, if the tenant or
borrower breaches conditions contained in the agreement.
Freehold: Ownership of land and property without limit of number of years. Freehold is the
greatest interest in land and property a person can have and gives the owner absolute
ownership.
Holding: “In relation to tenancy”, means the property under the tenancy.
Instrument: A document which creates or effects legal or equitable rights and liabilities.
Interest: Means a right in or over land and property.
Land administration: process run by the government using private or public sector agencies
related to land tenure, land value, land use, and land development.
Land register: This is the systems by which matters concerning ownership, possession or
other rights in land can be recorded to provide evidence of ownership through a title.
Land Surveyors: Professionals who survey land and properties to identify their location and
boundaries. Their work helps in issuance of titles. They are registered by the Land Surveyors
Board (LSB) and full members of Institution of Surveyors of Kenya.
Land tenure: The relationship between people as individuals or groups, with respect to land.
Refers to the way in which land rights are held; or simply, the manner of holding rights in and
occupying land.
Land title: documentary evidence of a person’s right in land or ownership or ownership itself
depending on context.
Land value: the worthy of a property, determined by a variety of ways to give an approximate
estimate of the value.
Land: “land” means the physical location of a property or part of a property; Surface of the
earth, the material beneath, the air above it and the things fixed to the soil.
