QUESTION 2

ANSWER:

Utilitarian theory of property

The utilitarian theory was based on happiness of a society. It could not be maximized unless there were
rights regarding the use and transfer of property.

Land as a positive right rather natural right

Natural law theory based its principles as;

1. Law and Morality are inseparable

2. Law is universal as it applies to everyone

3. Law emanates from higher authority i.e. the state

4. Humans were born with reasoning and we should decide whether something is right or wrong

The natural law theory achieved the principles of natural justice.

They are stipulated in Article 10(2)1 which includes social justice and sustainable development.

Scholars who advocated the natural law theory include;

Plato; “the principles are important. The interest of the state or society counts for everything, that of the
individual for nothing”.2

Aquinas; “Law; an ordinance of reason for the common good, made by him who has care of the
community”.3

Socrates; “It is not the purpose of a juryman's office to give justice as a favor to whoever seems good to
him, but to judge according to law, and this he has sworn to do”.4

1
The constitution of Kenya, 2010
2
John cooper, Plato: Complete Works (Cambridge MA: Hackett, 1997)
3
Fathers of the English Dominican Province, Summa Theologica(New York: Random House, 2000)
4
Debra Nails, Socrates: The Stanford Encyclopedia of Philosophy (Spring 2020 Edition)
The positive law theory developed the natural law theory.

It based its principles as;

1. Once law is recognized by the state, it is devoid of morality and injustice

2. Law is from the state and no need for human reason instead.

Scholar who developed positive law theory, Jeremy Bentham advocated;

The command law theory where a command, the constitution is formulated by the state which is the
government and enforced by sanctions which include civil and criminal liabilities.

They were objections to the command law theory;

1. Not all laws are from the state

2. Not all laws attract sanctions

3. The state may become dictatorial

4. There is no sovereign body that formulates international law

However, the objections are rectified by laws; Article 15 ensures, the state cannot be dictatorial as it draws
its powers from people

The Land Registration Act6, the Land Act7, National Land Commissions Act8, the Land Acquisition Act9
the Land Control Act10 and the Land Disputes Tribunals Act11 are statutes meant to sanction use of land.

Article 162(2) (b)12 establishes the Environment and Land court which has jurisprudence in land cases

There’s also the Land Disputes Tribunal which carry out quasi-judicial functions

Although, there is not a sovereign body able to formulate law on its own, there are international laws put
in place to regulate countries. Kenya being a dualist conforms to, European Convention on Human
Rights13, International Covenant for Economic, Social and Cultural Rights 14, The African Charter on
Human and People’s Rights15, The Universal Declaration of Human Rights16

Relevance in Kenya Property Rights

1. Adverse Possession

Adverse Possession is essentially a situation where a person takes Possession of land, asserts rights over it
and the person having title to it omits or neglects to take an action against such person in assertion of his
title for a certain period, in Kenya 12 years.

It limits the time period in which the true owner may sue to recover the possession of the real property. 17

Elements necessary of an adverse possessor to gain rights to the real property

1. Open and notorious

2. Actual

3. Exclusive

4. Continuous

5. Hostile

Case Law

Celina Muthoni Kithinji v Safiya Binti Swaleh & 8 others18

The plaintiffs, sought ownership claim of the property.

The plaintiffs, claimed they had lived in that property throughout a period of 16-60 years without
interruption, which exceeds the 12 years requirement.

The court also established that they had met the elements to gain rights of the land as they had
continuously peacefully lived on the land and openly made developments over it

Based on these facts, the court granted them rights of the land and ordered the plaintiffs be registered as
owners.

17
Black’s Law Dictionary
18
[2018] eKLR
2. Transfer of Property

Peaceable possession is said to occur when the land passes peaceably from one owner to the next

An heir is someone who receives the land through peaceable possession when there is no will. 19

Case Law

In re Estate of Mohamed Tayebali20

The beneficiaries to a parcel of land sought claim of it over their fellow beneficiary whom it was
purported had gained ownership of the land to themselves.

The matter had been in res judicata thus the court found it fundamentally wrong to interfere with the
decision by the previous court

They suspended any use of the land by the claimants in asserting ownership, and appointed a further
hearing date where they would allow viva voce evidence and also appoint administrators.

2. Color of title

This exists when there is a title transfer, but it is defective in some way

If the defective title covers an area larger than the actual area possessed, then upon completion of the
statute of limitations, you have title to the entire land without actual use of the land 21

Case Law

M’Mbaoni M’Ithara v James Mbaka22

The claimant bought land and made developments over it openly. The defendant however, claimed that
the title was not of good substance, illegal.

The defendant claimed he had allowed the appellant to live in it but could vacate on demand. He
demanded vacation in which the claimant refused. The defendant argued the claimant could also not seek
adverse possession as he had continuously interrupted his stay in the land.

The court relied on the case of wambo v njuguna23 , held: “Where the claimant is in exclusive possession
of the land with leave and license of the appellant in pursuance to a valid sale agreement, the possession
becomes adverse and time begins to run at the time the license is determined. Prior to the determination
of the license the occupation is not adverse but with permission. The occupation can only be either with
permission or adverse, the two concepts cannot co-exist.”

19
Black’s Law Dictionary
20
[2020] eKLR
21
Black’s Law Dictionary
22
[2019] eKLR
23
[1983] KLR172
The claimant failed to produce evidence of a good title. The court found he could not claim sale had been
made and no agreement to sale also, in which time for adverse possession could run.

Although he had lived in the land for over 12 years, he had no contract of sale to claim adverse
possession.

The court held the land be legally owned by the defendant and ordered the claimant to vacate it after 6
months.

Joint Tenancy

Two or more people have the right to current possession at the same time. 24

Section 2 25 ; “joint tenancy” means a form of concurrent ownership of land where two or more persons
each possess the land simultaneously and have undivided interest in the land under which upon the death
of one owner it is transferred to the surviving owner or owners.

Case Law

Aliya w/o Jaganath Rama Charan Nagia alias Mahmoud Issa v Hussein Issa Nagia & 2 others26

The claimant sought joint ownership of an estate where she owned with her husband.

The defendants, claimed the estate was not jointly owned and sought ownership

The court found that although the appellant had jointly owned property with her husband, the estate in
question was not part of the property

Joint ownership involved where the property belonged to both the parties and each party had separate
entitlement to other properties

Her action failed as the court found that the estate had only belonged to her husband and not jointly
owned.

24
Black’s Law Dictionary
25
Land Act No.6 of 2016
26
[2017] eKLR
Marital Property

Common Law assumed male dominated everything. Law of Coverture, gave the husband absolute control
over the wife’s property during his lifetime. The husband and wife was one person and that one person
was the husband27

Dower a surviving widow has the right to dower. She is not treated as inheriting this from her husband,
but rather, this property is considered hers form the moment they are married

Traditionally, was an optional grant by the husband to the wife during the marriage ceremony. Today, it is
mandatory and generally applies equally to men and women

It is a right to a life estate in 1/3 of:

i. All lands, not a 1/3 interest, but rather a physical 1/3 partition

ii. Of which her husband was seized

Iii. Of legal estate

Iv. Of any time during the marriage

Even if it is sold to a third party, at the husband’s death, the wife still has a right to 1/3 of the property
Therefore, for a husband to sell property, he must have his wife’s consent to release her dower 28

Article 45(1)29 establishes the family which enjoys rights and protected by the state and Article 45(3) 30
ensures both parties enjoy rights at the time of marriage, during and after dissolution of the marriage.

Section 731 also stipulates rights of married persons during and after dissolution

Section 1732 protects the rights of married women in owning property

Case Law

P N N v Z W N33

This case relates to the perennial war between husband and wife over matrimonial property after the
collapse of their marriage.

The court established property which would be shared 50/50 by the spouses and relied heavily on the
statutes which aided successfully in determining the rightful owner of the subject matter property

27
Black’s Law Dictionary
28
ibid
29
The Constitution of Kenya, 2010
30
ibid
31
The Matrimonial Property Act, 2013
32
The Married Women’s Property Act, 1882
33
[2017] eKLR
Community Property

A community can own property and owe debt as one entity

Section 6334 establishes land can be owned by a community.

The Community Land Act35 describes "communal use of land" means holding or using land in undivided
shares by a community;

Case Law

Nubian Rights Forum v Nubian Rights Forum; Trustees of Kibra Community Land Trust (Interested
Party)36

A community owned land in Kibra and gave its permission to build a temporary church structure by the
defendants. The defendants however built a permanent structure which contravened with the use of land
not belonging to them.

Onus was placed on the claimants to prove that indeed the structure was permanent and if not stopped
they would suffer irreparable damage. They failed to prove this and their injunction claim failed

The Law of Waste

When the present possessor does something that may reduce the value of the future interest, the future
interest holder can get damages or an injunction against the present interest holder

Damages are only available if the future interest holder joins as parties to the lawsuit all possible future
interest holders

At common law one can sue for waste when there is any major change, even if it increases the property
value. Modern courts tend to look at the economic value of the change

Order 40 Rule 137 protects property from being depreciated its value in future

Case Law

Medina Corporation Co Ltd v Meridian Properties Ltd & another38

The claimants, a company brought action against the defendants, another company who bought shares
not according to their prerequisite contract agreements which they thought could lead to a depreciation in
their value. Their action succeeded.

34
The Constitution of Kenya, 2010
35
No. 27 of 2016
36
[2019] eKLR
37
Civil Procedure Rules,2010
38
[2014] eKLR