LESSON 9

THE LAW OF PROPERTY

CONTENTS
1. Read the Study Text provided below
2. Attempt the reinforcing questions given at the end of the lesson
3. Compare your answers with those given in lesson 11
4. Read Chapter 4 of Hussain

STUDY TEXT

8.1 THE LAW OF PROPERTY

PAGE 24
LESSON 9 THE LAW OF PROPERTY
PROPERTY LAW
Property law is concerned with the bundle of rights persons may exclusively have in time over a given situation.
It defines the range of functions persons may exercise in given situations at a given time , the so called
functional theory of property.

The idea of property is a consequence of social evolution regardless of the origin of the property and the legal
system recognises a category of rights relating to property.

Property law declares what society regards as property, it creates or constitutes property rights, defines the legal
incidence of those rights i.e. their content, regulates the dynamics of property rights and prescribes the
conditions for the availability of the rights.

Property in land

The legal conception of land under English Common Law is expressed in the maxim.
Cujus est solum, ejus est usque ad coelum et ad inferos. Land embraces not just the physical straturm but
fixtures , water and all things found in the aerospace above the geospace. However, this conception had to yield
to both common law and statutory exceptions to facilitate new forms and patters of land use, and the Kenyan
legal system assimilates some of these exceptions, for example:
(a) the common law maxim of quic quid plantatur solo solo cedit relating to fixtures is subject to various
exceptions respecting:
(i) Trade fixtures i.e. fixtures necessary for the carrying out of atenants trade

(ii) Ornamental and domestic fixtures

(iii) Agricultural Holdings Act 1948

To ascertain whether a fixture was excepted by the rule regard has to be made to:
(i) The nature of the fixture
(ii) The degree of annexation to the soil
(iii) The purpose or object of annexation

(b) Minerals by reasons of their importance e.g. under the Mining Act Cap 306
(c) Water under the Water Act Cap 372
(d) The aerospace: Under the aerodromes (control of obstruction) Act Cap 396, Electricity Supply Lines Act
Cap 315 and the Wayleaves Act Cap 292, Sectional Properties Act. These statutes reduce the appropriation
of the aerospace.

African customary law confines the conception of land to the physical solum.

In summary property in land means the exclusive control of the soil everything up to the sky and down to centre
of the earth. However, the degree of control or of enjoyment an individual or community may have over land,
vary with the nature of the rights vested.

Cases of property rights in land

Property rights in land generally fall into three categories namely estates, servitudes and encumbrances.

(i) Estates
At common law, the doctrine of estates addresses the question of duration in the enjoyment of proprietary
interests in land. Estates in this sense fall into two main categories, namely
1. Freehold estates
2. Estates other than freehold

Freehold estate:
These estates confer a bundle of rights exercisable for an indefinite duration i.e. not time limit is attached.
The state cannot determine the duration even though it is the granting authority. These estates may be by
inheritance or otherwise.
PAGE 24
LESSON 9 THE LAW OF PROPERTY
The rights thereby conferred can be transmitted to future generations indefinitely. Freehold estates of
inheritance are the fee simple and fee tail. A fee simple estate can be inherited by an issue and there are
no conditions attached. The fee tail on the other hand limits the number of issues capable of inheriting the
estate. The freeholder has capacity to determine who will inherit the estate e.g. the English doctrine of
primo geniture is explicit that in the event of death of the holder, the estates devolves to the first born
male.

Freeholds other than by inheritance were purely life interests and a life estate and an estate per autre vie
i.e. an estate in the life of another. Such an estate lapses in the event of death of the person on whose life
it is based.

Estates other than freeholds are leaseholds.

(ii) Servitudes
These are rights in alieno solo i.e. rights conferring a power over another person’s estate for the benefit of
the right holder or of his estate. The common law conception of servitudes consists of:
(1) Easements
(2) A profit a prendre
(3) Restrictive covenant

(iii) Encumbrances
These are generally rights in alieno solo but constitute burdens on the property they are subject to and are
temporal in character. They are either mortgages or charges.

Under Kenyan law, the creation of common law estates other than the fee simple is prohibited. Estates in
Kenya are either
(1) Fee simple
(2) Leasehold
(3) Absolute proprietorship

(iv) Communal property

Absolute proprietorship as an estate was created by the Registered Land Act Cap 300. It is an estate sui
generis Section 27 (a) of the Act provides that:

“Subject to this Act, the registration of a person as the proprietor of land shall vest in that person the
absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto”.

Under 28 of the Act:

“The rights of a proprietor, whether acquired on first registration or whether acquired subsequently for
valuable consideration or by an order to court, shall not be liable to be defeated except as provided in this
Act, and shall be held by the proprietor, together with all privileges and appurtenances belonging thereto,
free from all other interests and claims whatsoever…”

Generally therefore, primary interests in land are either

(i) Fee simple
(ii) Absolute proprietorship
(iii) Community property

Secondary interests are either

(i) leaseholds
(ii) Servitudes
(iii) Encumbrances

Question has arisen as to who may become a proprietor. Property rights may be held by:
(1) State: The state enjoys property rights by virtue of its sovereign power i.e. by dominion and as an
individual. As a general rule, the state is the proprietor of most land in Kenya other than trust land. There
is no public land in Kenya.
PAGE 24
LESSON 9 THE LAW OF PROPERTY

(2) Public: This occurs where radical title inland is vested on people e.g. in Lesotho, land belongs to the
people but is vested in the King as trustee as is the land in Swaziland

(3) Individuals: This is a phenomenon whereby property rights are vested exclusively in an individual.

Proprietorship may be exclusive, concurrent or consecutive. It is exclusive where the bundle of rights are
exercisable by the proprietor to the exclusion of all other persons. It is concurrent where two or more proprietors
have similar rights over the same property. Such property is exclusive to the parties. It may be family property
or co-operative property. It is consecutive where interest in land is created successively one after the othe4 and
proprietorship changes with time e.g. strict statement, trusts and perpetuities. Consecutive ownership is largely
restricted by the Trust of Land Act Cap 290 and the Registered Land Act Cap 300.

These three categories of proprietorship pose peculiar problems, for example, concurrent proprietorship may be
either: (1) Joint
(2) Common or
(3) By entities

(1) Joint proprietorship

This is a situation where property is owned by two or more persons. The property enjoys all the properties
of a single owner. It is characterised by the four unities.

(i) Unity of title: The title conveyed must derive from the same title.
(ii) Unity of possession: All proprietors are entitled to each and every part of the land. All have similar
rights to use the land.
(iii) Unity of interest: All proprietors must hold an interest of the same nature extend and duration.
(iv) Unity of time: The proprietors’ interests must vest at the same time

One of the major consequences of the town unities is jus accrescendi i.e. the right of survvorship i.e. in the
event of death of one of the proprietors, proprietary rights vest in the survivor or survivors. The doctrines of
jus accrescendi ordains that interest in joint property cannot pass by will or intestacy. At common law, if
joint proprietors die at the same time, the younger party is deemed to have survived the older hence his heirs
inherit. However, if a joint proprietor kills another, he cannot inherit since at common law, one must not
benefit or profit from personal inequity.

Under Section 102 (1) of the Registered Land Act:

“Where the land, lease or change, is owned jointly, no proprietor is entitled to any separate share in the land,
and consequently –
(a) dispositions may be made only by all the joint proprietors, and
(b) on the death of a joint proprietor, his interest shall vest in the surviving proprietor
or the surviving proprietors jointly.”

(2) Common proprietorship

A conveyance to two or more proprietors as common proprietors confer separate but undivided shares in the
property, hence, in the event of death of a proprietor, the right of survivorship does not exist. A common
owner can only transfer his share with the consent of the others.

Under Section 103 (1) of the Registered Land Act, Cap 300
“Where any land, lease or change is owned in common, each proprietor shall be entitled to an undivided
share in the whole and on the death of a proprietor his share shall be administered as part of his estate.

Under Section 103 (2)

“No proprietor in common shall deal with his undivided share in favour of any person other than another
proprietor in common of the same land except with the consent in writing of the remaining proprietor or
proprietors of the land, but such consent shall not be unreasonable withheld”.
PAGE 24
LESSON 9 THE LAW OF PROPERTY
Under the provisions of the Sectional Properties Act of 1987, it is possible to own property concurrently.
One cannot have proprietary rights without the soil. Sectional property involves horizontal division of
property rights. The Sectional Properties Act came into force on April 1st 1990
(3) Consecutive proprietorship
Property rights in land can be conveyed in such a manner that the original interest is transferred from one
person to another for a specified duration consecutively. This is the creation of one interest after another.

The state may take property from private owners and relocate it for public use or regulate the use of private
property i.e. police power. This contrasts with the principle of eminent domain, which is the power of the
state to take over private property for public use. The state therefore compels a transfer of the property from
a private holder to itself. This principle is traceable to ancient Rome and feudal England where property
could be taken over by the state for public purposes. It extinguishes private rights, subject to compensation.
The property must be intended for public use and the state must compensate the holder adequately failing
which, the holder is entitled to apply to the court for such compensation. The state must comply with the
prescribed procedures to enhance fairness. The doctrine of eminent domain is embodied in Section 75 of
the Constitution.

On the other hand, the doctrine of police power is today invoked to facilitate proper utilization and
management of natural resources. This power is an attribute of state sovereignty. It is an incidence of
political jurisdiction. It does not extinguish private proprietary rights and no compensation is payable. This
power is excisable to:
(i) Regulate use of agricultural land under the Agricultural Act for proper utilisation and management of
agricultural land so as to maximise output.
(ii) Facilitate division of land to two or more parcels under separate titles.
(iii) Facilitate the sale, transfer or mortgage the land.
(iv) Regulate the use of development of land in urban areas under the Town Planning and the Land
Planning Acts.
PAGE 24
LESSON 9 THE LAW OF PROPERTY

THE NATURE OF INTEREST IN LAND

FREEHOLD

(i) Fee simple

This is the largest estate that can be acquired form the state. However, it is not an allodium hence in the
event of failure of an issue, the estate escheats to the state. This estate confers unlimited rights of use,
abuse and disposition, the proprietor has unlimited right of abuse, i.e. cannot be impeached for waste i.e.
any act which changes or alters the nature of land. Waste falls into four categories namely:

(a) Ameliorating – Changes that improve the value of the property.

(b) Permissive – These are acts of commission which may or may not be to the detriment of the land.
(c) Voluntary waste: These are acts of commission detrimental to the land
(d) Equitable waste: These are acts of wanton destruction.

At common law, a freeholder is free to commit any or all of the aforementioned wastes. Leaseholders
may commit ameliorating waste but no other.
- The fee simple holder has liberty to dispose of his property by deed, or will. Such disposition may be
partial or wholly, conditionally or unconditionally.
- The character of a fee simple estate is that it is unlimited in duration and can therefore pass to
descendants.

Creation of the estate

(a) By grant: Such grants may be staturoty, inter vivos or testamentary.
Section 307 Cap 290 confer upon the president the power to make grants or dispositions of “any
estates, interest or rights on or over unalienated government land”.

Under Section 8 of the I.T.P.A,

“…transfer of property passes forthwith to the transferee all the interest which the transferor is then
capable of passing in the property and in the legal incidents thereof”.

Under the Law of Succession Act Cap 160, Laws of Kenya, a fee simple is transmittable by will.

(b) Enfranchisement: Under Section 27 of Cap 280, agricultural leases contain an option by which the
lesee on expiration of the lease and due compliance with the covenants and conditions of the lease;

“Shall be entitled to a grant of freehold…on payment of the unimproved value of the land at
commencement of the term”.

(ii) Absolute proprietorship:

This estate is traceable to the Crown Lands ordinance 1902 by which all land in Kenya became Crown
land making individuals tenants of the state. After q948, the colonial government divided Kenya into
Crown land and Native land. Whereas crown lands were vested in the state, native lands were vested in
Native Lands Trust Board. In 1963, the Native Land Trust Board was abolished. The land became trust
land and was vested in County Councils. A working party established in 1957 recommended that natives
be accorded absolute ownership of the land they held. This recommendation was embodied in the
Provisions of the Registered Land Act, Cap 300

Under the Provisions of the Trust Land Act upon registration of land, the County Council loses all
proprietary rights, which are then vested in the individual. It therefore follows that absolute
proprietorship is an allodium since the proprietor has a radical title. The estate created by Sections 27 and
PAGE 24
LESSON 9 THE LAW OF PROPERTY
28 of the Registered Land Act is technically larger than the fee simple. However, treating absolute
proprietorship as an allodium is problematic and it is generally deemed to be an estate sui generis.

The registration of customary land under a single owner, after adjudication has created legal problems,
since the registration confers absolute proprietorship on the person to the exclusion of other customary
holders. Question has arisen as to whether “customary trusts” exist.

Under Section 27 and 28 of the Registered Land Act, Cap 300 absolute proprietorship confers “all rights
and privileges associated with such ownership”. These rights include the right to use, abuse and to
dispose and
under Section 28 are:
“not liable to be defeated except as provided in the Act… free from all other interests and claims
whatsoever”.

Section 28 prohibits any purported limitations on powers of disposition, prohibits the insertion of
conditions of defeasance in the grant. It also prohibits conditions restraining use, except easements,
profits licences and restrictive covenants. However, temporal restraints are permissible.

Sections 27 and 28 of the Act have caused considerable difficulty in land disputes.

Creation of absolute proprietorship

This estate may be created by:

(i) Registration – pursuant to the provisions of Cap 300
(ii) Consolidation
(iii) Inheritance – maybe by will or through intestacy under the Law of Succession Act.
(iv) Conversion from Cap 281 and 282 to Cap 300 – voluntary action by holder or by the minister:
Section 2 (c).
(v) Transfer – these are inter vivos. Transactions which must take effect immediately pursuant to
Section 87 of the Registered Land Act.

This estate is not subject to the doctrine of escheat but is subject to bona vacantia

(iii) Community property

Large tracts of land not registered under the various registration systems in Kenya are held under
customary law as trust land. Land held in trust and governed by the Trust Land Act is held in trust for the
benefit of the persons resident therein. The title of such property is vested in the community. Individuals
have priority of use. This system of holding land is governed by rules of obligation which are reciprocal
in nature and bind member of the community. However, there is need for a legal person to be recognised
for purposes of registration. This could be ascertained by determining who has access and control over
the land. Access to communal property is obtained through membership by birth, marriage or adoption.
Control is a political function. The obligation of the controlling authority is to guarantee access, protect
the right of access and ensure that trans-generational rights are not extinguished. The controlling
authority is registered though it is not legally the owner.

LEASEHOLD

This is a secondary interest in land derived from a primary interest. This interest confer upon others subsidiary
powers.

Definition
Under Section 3 of the Registered Land Act Cap 300, Laws of Kenya, Lease means:

“… the grant, with or without consideration, by the proprietor of land of the right to the exclusive possession of
his land, and includes the right so granted and the instrument granting it, and also includes a sub lease but does
not include and agreement for lease”.

The term “lease” refers to a transactions which of itself creates a relationship of landlord and tenant between the
grantor (the Landlord) and the grantee (the tenant). The formal document by which this is done is also called a
PAGE 24
LESSON 9 THE LAW OF PROPERTY
lease. Whether a transaction is a lease or an agreement for a lease depends on the intention of the parties and the
rules of law applicable in Kenya, certain leases are registrable hence, such leases the doctrine in Walsh v
Lomsdale is inapplicable. This doctrine states that where an agreement for a lease is one in which specific
performance can be granted, equity will treat the parties as if a lease has already been executed.

Under Section 107 of the I.T.P.A,

“A lease of immovable property from year to year for any term exceeding one year, or reserving a yearly rent,
can be made only by a registered instrument. All other leases of immovable property may be made either by a
registered instrument or by oral agreement accompanied by delivery of possession”.

Under Section 47 of the Registered Land Act, Cap 300, “A lease for a specified period exceeding two years, or
for the life of the lessor or of the lesee, or a lease which contains an opinion whereby the lesee may require the
lessor to grant him a further term or terms which, together with the original term, exceed two years shall be in
the prescribed form, and shall be completed by:
(a) Operating a register in respect of the lease in the name of the lesee, and
(b) Filing the lease and
(c) Noting the lease in the encumbrances section of the register of the lessor’s land or lease.

The doctrine in Walsh v Lomsdale is based on the premise that even without formal execution of a lease, a
proprietary interest passes in equity. However, under the Provisions of the I.T.P.A and RLA, proprietary interest
in certain leases does not pass unless and until they are registered, hence the statutory exclusion of the equitable
doctrine.

However, leases governed by Cap 301 are expected as held by the Court of Appeal in Batchelors Bakery Ltd. v
Westlands Securities Ltd., where law J.A observed “The parties by an agreement in writing, contracted for a
term exceeding five year. This agreement was a contract to the contrary within the meaning of the opening
words of Section 106 of the I.T.P.A., thus excluding the deeming provisions of that Section as to the duration of
certain leases in the absence of written contract. Such an agreement is valid inter pates even in the absence of
registration, although it given no protection against the rights of third parties”.

Leasehold refers to the property or bundle of rights held under a lease. At common law, leaseholds are regarded
as personal estates or chattels real.

Creation of Tenancies

Formalities:
(i) Under Section 3 (3) of the Law of Contract Act, all contracts for the disposition of any interest in land
must be evidenced by a note or memorandum. Absence of writing renders an agreement unenforceable.

(ii) Under the I.T.P.A., yearly tenancies for periods exceeding one year or reserve a yearly rental are
registrable. Other tenancies need to be registered but the transaction creating such a relationship must be
accompanied with delivery of possession and no interest passes until the tenant takes possession. Under
the Registered Land Act, Cap 300 all tenancies for periods exceeding two years or for the life of the
tenant or landlord must be registered. Such tenancies are incomplete unless registered.

(iii) For registrable leases, statutory forms are prescribed by statutory provisions which prohibit the registrar
from registering any other instrument.

Effect of non-registration
(1) Under the ITPA, non registered transactions are void unless circumstances are such as to raise the
presumption of tenancy under Section 106, as was observed in Bains v Chogley. However,
judicial authority appears to suggest than an unregistered but registrable instrument is valid inter
partes rather than void for all purposes.

(2) Under the Registered Land Act, Section 38 (1) is emphatic that
“…every attempt to dispose of the land, lease or charge otherwise than in accordance with this Act
shall be ineffectual to create, extinguish, transfer vary or effect any estate, right or interest in land,
PAGE 24
LESSON 9 THE LAW OF PROPERTY
lease or charge”. However, such instruments may operate as contracts, capable of supporting a
caution, action for specific performance or damages or recovery of property.

Characteristics of tenancies or leases

For a transaction to confer a leasehold, it must fulfil several conditions:

(a) Exclusive possession: This is a right to hold the interest to the exclusion of all others. It is a right
“unattended by a simultaneous right of any other person in respect of the same subject matter which
means the tenants’ rights of possession is enforceable against the Land Lord. The Landlord may not
interfere with the premises at will during the currency of the lease. It was so held in Paul Hetch v
Morgan where Macdolt observed:

“The whole effect of the agreement of January 19 was to create not a licence but a tenancy. I therefore
agree with the board in its decision…that the present respondent was in exclusive possession… despite
the intention of the appellant the circumstances including the written agreement constituted the occupation
by the respondent a tenancy and not a licence”.

(b) Defined Premises: The premises to which the agreement or lease refers to must be defined or
ascertained. In Heptulla v Thakore it was observed that the description was not capable of creating any
recognisable frontier because the premises intended to be let could not be ascertained hence the intended
demise failed.

(c) Certain period: A lease must commence at and exist for a period certain or at or for a period capable of
being ascertained. It was so held in Marshall v Berridge. There must be a certain beginning and a
certain ending otherwise it is not a perfect lease. Vague expression do not do as was in Lace v Chantler.

(d) Scope of grant: The quantum of rights conferred must be definite or capable of being defined. Under
Section 8 of the ITPA, “a transfer of property passes forthwith to the transferee all the interest which the
transferor is then capable of passing in the property, and in the legal incidents thereof”.

Section 27 (b) of the Registered Land Act:

“the registration of a person as the proprietor of a lease shall vest in that person the leasehold interest
described in the lease together with all implied and expressed rights and privileges belonging or
appurtenant thereto and subject to all implied and expressed agreements, liabilities and incidents of the
lease”.

CLASSIFICATIONS AND TYPES OF TENANCIES

(a) Fixed period tenancies: These are tenancies created for a fixed term. Its commencement and ending
must be specified. Registered Land Act tenancies take effect from the date fixed for commencement.
Under Section 51 (2) of the Registered Land Act, “Any instrument purporting to create a lease to
commence on a date more than twenty one years after the date of the instrument or to take effect on the
fulfilment of any condition is void”.
A fixed period lease determines when the duration expires.

(b) Periodic tenancies: This is a tenancy which continues indefinitely from periods of one year or less and
may be express or implied.
- If the duration is not specified, and no notice period is provided, a periodic tenancy arises.
- If a fixed period tenant holds over at the expiry of the period and continues to pay rent, the tenancy
becomes periodic.
PAGE 24
LESSON 9 THE LAW OF PROPERTY
- Under Section 11(3) of the Registered Land Act “A right of occupation under African customary law
recorded in the adjudication register shall be deemed to be a tenancy from year to year”.

(c) Tenancy at will: This is transaction whereby the tenant occupies the premises on terms that either party
may determine the relationship at any time. The relationship terminates when either party commits an act
inconsistent with the tenancy or on death.

(d) Tenancy at sufferance: This is a tenancy which arises whenever a fixed period tenant holds over without
the landlord’s consent or dissent. A tenant at sufferance enters by lawful title but remains without any
title at all. It is created by operation of law. If rent is paid and accepted, the relationship becomes a
periodic tenancy. Such a tenant may be ejected without notice. However, the tenant is not a trespasser.

(e) Service Tenancy: This is tenancy created to enable the tenant occupant perform a particular service. The
occupation is ancillary to the performance of services. The tenant has a lease determinable at any time
and on determination of employment. This tenancy is governed by ordinary law of tenancies.

RIGHTS AND OBLIGATIONS OF PARTIES

Like any other contractual relationship, a lease confers certain rights and imposes obligations on the parties. As
a general rule, the parties thereto specify the premises, terms, rent, rights and obligations accruing. However, if
the agreement is silent, the law implies certain rights and obligations which bind the parties. These rights and
obligations are now embodied in Section 53 of the Registered Land Act, Cap 300 and Section 108 of the ITPA.
However, the parties are free to contract out of the implied terms.

Obligations of the landlord

Duty not to derogate from the grant

The Landlord is obliged not to act in such a way as to render the premises unfit for the
purposes for which it is rented.
Under Section 53 (b) of the Registered Land Act, the Landlord must not “use or permit to be used any adjoining
or neighbouring land of which he is the proprietor or lessee in any way which would render the leased premises
unfit or materially less fit for the purpose for which they were leased.”

Duty to ensure quiet enjoyment

The landlord, his agents and servants must not interfere with the tenants’ enjoyment of the
premises. Section 53 (a) of the Registered Land Act is emphatic that “ the lessee shall and
may peaceably and quietly possess and enjoy the leased premises without any lawful
interruption from or by the lessor…”
Duty to grant premises fit for purpose.
The Lessor or landlord must ensure that the premises let is fit for the particular purpose for
which it were let. Under Section 53 (d) of the Registered Land Act, the lessor must ensure
that “the house, flat or room is fit for habitation at the commencement of the tenancy…”
Additionally, the lessor is obliged to disclose any material defect in the property with
reference to the intended use, which the lessee could not with ordinary care discover.
Duty to suspend or adjust rent
As a general rule, the doctrine of frustration does not apply to leases; Paradine v Jane. This is because the duty
of the lessor is to put the lessee into possession. If the premises or part thereof are destroyed or damaged by a
cause not attributable to the tenants negligence, so as to render the premises as part thereof or wholly or partially
unfit for occupation or use, the lessor is bound to suspend rent or a just proportion thereof depending on the
nature of damage, until the leased premises or part thereof is rendered unfit for occupation or use. However, if
the premises is not rendered fit for occupation and use within 6 months of the damage or destruction, the lessee
may by giving a one month’s written notice determine the lease.

Under Section 108 (e) of the ITPA, the lease is voidable at the option of the lessee
PAGE 24
LESSON 9 THE LAW OF PROPERTY
Duty to put the tenant in possession
The lessor is bound to hand over to the tenant such means as will enable him enter into
occupation. Under section 108 (A) (b) of the ITPA, “The lessor is bound on the lessee’s
request to put him in possession of the property.”
Duty of repair
As a general rule, it is the duty of the lessor to repair the roof, main walls, main drains,
common passages and installations. This duty is imposed upon the lessor by Section 53 (c) of
the Registered Land Act “where only part of a building is leased”. Under Section 108 (B) (f)
of the ITPA< if the lessor does not effect the repairs within a reasonable time of notification,
the lessee may do so and deduct the expenses incurred from the lessor or rent payable.

Obligations of the tenant

Duty to pay the rent reserved
It is the obligation of the lessee to pay the rent reserved. Such rent continues to be payable
irrespective of occupation. Under Section 54 (a) of the Registered Land Act, the lesee is
bound “to pay the rent reserved by the lease at the times and in the manner therein specified.”
Section 108 (B) (1) of the ITPA is emphatic that “The lessee is bound to pay…rent to the lessor or his agent…”.
Unless otherwise provided, rent is payable in arrears

Duty to pay rates and taxes

The lessee is bound to pay all rates and taxes except where the landlord is under a statutory
obligation to do so. This duty is embodied in Section 54 (b) of the Registered Land Act.
However, under the Valuation for Rating Act Cap 266, rats and taxes are payable by the
registered proprietor.
Duty not to commit waste
The lessee is duty bound not to commit waste i.e. he must not reduce the value of the
reversion. Fixed term tenants are liable for voluntary and permissive waste. Thus if the
tenancy makes no provision for repairs, the tenant must maintain the premises in the condition
in which he took it. Under Section 55 of the Registered Land Act, the lessee must keep the
premises “ in such state of repair as that in which a prudent owner might reasonably be
expected to keep his property…”
Duty not to transfer, change, sub-let or part with possession.
Generally, the lessee must not transfer, change, sub-lease or otherwise part with possession of
the lease premises without previous written consent of the lessor. Section 54 (h) of the
Registered Land Act embody this duty. However, under Section 62 (1) the proprietor of a
registered lease is free to sub-lease for any period less than the remainder of the period of his
lease.
Although Section 108 (B) (j) of the ITPA confer upon the lessee the right to transfer or sub-let the whole or any
part of his interest in the property, his obligations to the lessor are not extinguished.

Duty to permit the Landlord view the condition of premises

It is the duty of the lessee to enable the lessor appreciate the condition of the leased premises.
The obligation is usually implied where the landlord is under an obligation to repair the
PAGE 24
LESSON 9 THE LAW OF PROPERTY
premise. The landlord must do so at a convenient time after reasonable notice otherwise he
may be liable for trespass.
Section 54 (f) provides inter alia that the tenant will “…permit the lessor or his agent…to enter on the leased
premises and examine their conditions.”

Duty to make reparation for any breach

It is the duty of the lessee to repair make good any defect or breach of agreement for which he
is to blame provided notice has been given by the lessor. Reparation must be made within
such reasonable time as may be specified by the notice. Under Section 108 (B) (m) of the
ITPA, the lessee is bound to make good any defect within 3 months of the notice or leaving.
Duty to make material disclosures
The Lessee is bound to disclose any external interference by third parties or any action he is
about to take which affects the value of the premises.
Under Section 108 (B) (k) the lessee must disclose to the lessor any fact as to the nature or extent of the interest
he is about to take, which the lessor is unaware of and which materially increases the value of such interest.

Duty not to erect fixtures

Under Section 108 (B) (p) of the ITPA, the lessee “must not without the lessor’s consent erect
on the property any permanent structure, except for agricultural purposes”.

Duty to put the landlord in possession

It is the duty of the lessee at the expiration of the lease to put the lessor in possession of the
lease premises.
Under Section 108 (B) (q) “on the determination of ht lease, the lessee is bound to put the lessor into possession
of the property”.

REMEDIES FOR BREACH OF CONTRACT

Remedies of the Landlord

Distress for rent
This is the landlords primary remedy for non payment of rent. The right of the landlord to
levy distress is regulated by the Distress for Rent Act cap 293. This Act enables the landlord
or a certified bailiff to enter the demised premises and seize and sell any chattels found
therein including those of a stranger except:
Government property
Goods used in the tenants trade
Perishable goods and linen
Chattels belonging to lodges and sub-lessors if declared in writing

The lessor must proceed within 6 years of default. If rent is owing at the end of the lease, the landlord has only 6
months failing which he must seek other remedies. The lessor may not break open any doors, windows at …in
the premises unless the goods are hidden elsewhere. If a break in must take place, he must be accompanied by a
police officer above the rank of sub-inspector.

Illegal distress is trespass and gives rise to damages. If after distress the tenant does not pay the rent due, the
landlord may sell the chattels to recover his money and costs.

Action for money

This is the right of the lessor to sue the lessee for the recovery of the rent due. The action
must be commenced within 6 years of default or the date when rent was acknowledged to be
due.
PAGE 24
LESSON 9 THE LAW OF PROPERTY
Damages
The principal remedy of the landlord for breach of other obligations is an action for damages. The amount
recoverable is usually based on the extent to which the reversion has been diminished by the breach.

Injunction:
This equitable remedy is available to the lessor to determine the breach especially if
continuing.
Forfeiture:
This remedy is available to the landlord in extreme circumstances. It involves the termination
of the tenancy relationship.

Remedies of the tenant

The tenant remedies for breach of the terms of the lease and implied covenants by the
landlord lie mainly in an action for damages and in other circumstances, repudiation of the
agreement.

TERMINATION OF TENANCIES

A tenancy relationship may be brought to an end or terminates in the following ways:

By Notice
This method is applicable where
The tenancy does not prescribe a date for termination or
Either party intends to terminate the lease before the agreed period. In the case of periodic tenancy, length of
notice is one half the duration.
The notice must be appropriate and sufficient to manifest intention to terminate the lease. The notice may be
given to the landlord or his agent or through registered post.

The notice must relate to the entire premise demised. The lease determines on the expiration of the notice.

Expiration (lapse of) or effluxion of time

All fixed term leases generally terminate upon expiration of such time. Under Section 64 (1)
(a) of the Registered Land Act, a lease determines “where the period of a lease has expired.”
Forfeiture:
This is the right of the landlord or lessor, in the event of certain breaches, to re-enter the
demised premises and thus prematurely terminate the lease. The right is only exercisable:
Pursuant to a forfeiture clause
Generally, leases contain clause specifying the breaches for which the landlord may re-enter the premises.

Pursuant to statutory, in the absence of an express stipulation. Under section 56 (1) of the Registered Land Act
and Section 111 (g) of the ITPA the right is exercisable if the lessee:

Commits any breach of, or omits to perform an express or implied condition.

Is adjudicated bankrupt
Being a company goes into liquidation
Becomes insolvent

Written notice of forfeiture must be given. Such notice must specify the breach and the remedy required. Under
the Registered Land Act, the right of forfeiture is only exercisable if the tenant fails to make money
compensation.

However, a landlord entitled to forfeit the lease is deemed to have waived his right to do so by:
PAGE 24
LESSON 9 THE LAW OF PROPERTY
Acceptance of rent which has become due since the forfeiture
Distress for rent
Any other act showing intention to treat the lease as subsisting.

The right is exercisable by either:

Peaceable entry if the premises is empty
An action for ejectment.

The effect of forfeiture of a lease is to determine every sub-lease and every other interest appearing in the
register relating to the lease.

Surrender:
This is the giving up by the tenant to the landlord of his interest in the premises. Express
surrender is effective. The surrender must be made in a prescribed form executed by the
tenant. Surrender may be implied where the tenant gives up possession and the landlord
assumes possession in circumstances which show that the relationship has been terminated.
Merger
Under Section 111 (d) of the ITPA, a lease of immovable property determines in the case of
interests of the lease and the lessor in the whole of the property become vested at the same
time in one person in the same right. Under Section 44 of the Registered Land Act, mergers
must be express.

Conversion
A lease determines if the lessee converts the lease to some other interest, e.g. freehold by due
compliance with the law.
Enlargement

LICENCES
In the words of Vaugham C J in Thomas v Sorrell (1673)

“a dispensation or licence properly passeth no interest nor alters or transfers property in

anything but only makes an action lawful, which without it had been unlawful.”

Under Section 3 of the Registered Land Act licence “means a permission given by the
proprietor of land or a lease which allows the licence to do some act in relation to the land, or
the land comprised in the lease which would otherwise be a trespass, but does not include an
easement or a profit.”

A licence creates no proprietary interest in land at all. It is nothing but permission granted by
one party to another to enter upon the grantors land or lease.
A licence need not be by deed or be registered.
A licence in general is not transferable hence a purchaser with or without notice is not bound
by it, unless such licence is created by estoppel or the licensee lodges a caution.
PAGE 24
LESSON 9 THE LAW OF PROPERTY
Whether a transaction is a lease or licence depends on the total circumstances of the case.
Licences are terminable at any time.

RIGHTS IN ALIENO SOLO

Since property confers certain powers exercisable by the proprietor, the proprietor has
capacity to impose burdens or encumbrances upon himself or his own land. This is effected, a
transaction which confers upon the other party substantial rights on the proprietor’s land.
These transactions are either mortgages recognised by the ITPA or charges recognised by the
Registered Land Act.

MORTGAGES AND CHARGES

The classical definition of the term mortgage was given by Lindley J in Santley v Wilde (1899)

“…is a conveyance of land or an assignment of chattels as security for the payment of a debt or the discharge of
some other obligation for which it is given.”

Characteristics of mortgages whether chattel or land include:

the conveyance of title
a proviso to reconvey upon repayment on due dates.
PAGE 24
LESSON 9 THE LAW OF PROPERTY
The mortgagor’ equitable right to redeem the property after the contractual right has expired. This right cannot
be taken away by express covenant or conveyance. It was held in Kreglinger v new Patagonian Meant and
Cold Storage Co. Ltd. (1914).

Under Section 30 of the Registered Land Act, charge means “an interest in land securing the payment of money
or moneys worth or the fulfilment of any condition and includes a sub charge and the instrument creating a
charge”.

Under Section 64(4) of the Registered Land Act, no title to land passes. It is a security only. The chargee has no
right to possession. This is embodied in Section 80 of the Registered Land Act. Under a charge repayment of
the amount due discharges the charge, there is no conveyance and chargees have not right o foreclose.
With mortgages upon repayment of the loan, the property is reconveyed to the mortgagor. The mortgagor has
the legal and equitable right to redeem the property. The legal right to redeem is exercisable during the
contractual period of repayment.
The equitable right to redeem is exercisable after the expiration of the contractual period of repayment.
Equitable right to redeem differs from equity of redemption, which is the residual right the mortgagor retains in
the property after legal title has passed to the mortgagee. However, it is subject to reconveyance to the
mortgagor. This is the equitable title of the mortgagor. This title confers upon the mortgagor the equitable right
of redemption after the expiration of the contractual period of repayment.

The mortgagor’s right of redemption is protected by both statutory and judicial pronouncements. Section 60 of
the ITPA embodies this right.

The essence of a mortgage is the transfer of title not possession. The mortgagee need not have possession. If he
has, he is accountable for any profit accruing.

Both mortgages and charges may be made to secure the payment of an existing, future or contingent debt or the
fulfilment of any condition. Where the repayment date is not fixed or specified, the money is payable:
In the case of ITPA mortgages, within 6 months after demand
In the case of Registered Land Act charges within 3 months after demand.

These rules apply to all categories of mortgages and charges. A mortgage or charge transaction must be in a
prescribed form or instrument and the instrument is registrable. Under the ITPA, the borrower must sign an
acknowledgement to the effect that he understands the nature of the transaction.

The ITPA distinguishes various types of mortgages namely:

Simple mortgages:
This is a transaction whereby without delivering possession of the mortgaged property, the mortgagor binds
himself to pay the mortgage – money and expressly or impliedly agrees that in the event of non-repayment,
according to the contract, the mortgagee shall have the right to cause the mortgaged property to be sold and the
proceeds applied in payment of the mortgage money.

Mortgage conditional sale:

This is a mortgage transaction whereby the mortgagor ostensibly sells the mortgage property
on condition that in the event of default the sale becomes absolute or in the event of payment
the sale becomes void. The mortgages primary remedy is foreclosure.

Usufractuary mortgage:
This is a transaction whereby the mortgagee takes possession of the mortgage property and
uses the proceeds accruing therefrom to repay himself. It is similar to a self-redeeming
pledge. The mortgagee has no power to sell or foreclose.

English mortgage
This is a mortgage transaction whereby the mortgagor binds himself to repay the mortgage
money on a specific date and transfers the mortgaged property to the mortgagee subject to a
PAGE 24
LESSON 9 THE LAW OF PROPERTY
retransfer upon payment of the mortgage money. It differs from a mortgage by conditional
sale in that it involves delivery of possession and a personal covenant to repay. The primary
remedies available of the mortgage are sale foreclosure and suit on personal covenant.
Anomolous mortgage
This is a mortgage transaction created by Section 98 of the ITPA whereby the rights of the
parties are determined by the mortgage deed.
Equitable mortgage
This is a mortgage transaction created by the Equitable Mortgages Act Cap 291 whereby the
mortgagee deposits his title deeds without delivery of possession.

Obligations of the parties

Mortgagors and chargers are bound to:

Repay the principal sum and interest
Pay all rates and taxes
Honour prior obligations if the transaction is a subsequent mortgage or charge
Keep the premises in repair
Insure the property in the joint names of the parties

In the Registered Land Act charges:

Farm according to rules of good husbandry in the case of agricultural land
Hold the property and not lease the same for a period exceeding one year without prior written consent of the
chargee.

These obligations are extinguished upon:

Cancellation of the charge by the registrar after all money due has been paid or occurrence of an event envisaged
by the charge pursuant to which the money secured ceases to be payable.
Discharge of the charge pursuant to Section 81 (1) of the Registered Land Act.

REMEDIES OF MORTGAGEES AND CHARGEES

Under the ITPA, the mortgagee is entitled to foreclosure, appoint a receiver, sale,
consolidation and suit on the personal covenant.
Under the Registered Land Act Cap 300 the chargee is entitled to appoint a receiver, sale, suit on personal
covenant and restricted right of forfeiture and consolidated.

Foreclosure:
This is a court order which bars the mortgagor from redeeming his security. This remedy is
available after the mortgage debt is due but before redemption. Under Section 67 of the
ITPA, the “mortgagee … at any time after the mortgage money has become payable to him
and before a decree has been made for the redemption of the mortgaged property or the
mortgage money has been paid or deposited as hereinafter provided, a right to obtain from the
court an order that the mortgagor shall be absolutely debarred of his right to redeem the
property..”
All persons having an interest in the property must be joined to the suit and the court may, if satisfied that the
circumstances warrant, grant an order nisi requiring the mortgagor to pay the mortgage debt within 6 months or
be barred from recovering his property. If the mortgagee fails to pay within the period, the decree becomes
absolute. The effect of foreclosure is to transfer ownership to the mortgagee. Foreclosure is not available under
the Registered Land Act.

Appointment of receiver
PAGE 24
LESSON 9 THE LAW OF PROPERTY
This right is exercisable in circumstances in which the power of foreclosure is exercisable. In
the case of the Registered Land Act, the right is exercisable where there is a default which has
been continuing for one month and if the charger does not honour a chargee’s notice in 3
months.

The appointment must be in writing and specify the income for which the appointment is
made. However, it need not be registered. Such receiver is deemed to be the agent of the
mortgagor or charger and is entitled to demand all rents and profits from the property. All
moneys received must be applied to:
Charge rents, rates and taxes
Keep down all annual sums or other payments having priority to the mortgage
Pay commissions, insurance premiums etc.
Pay interest under the mortgage or charge.

A mortgagee in possession and a chargee who has appointed a receiver has collateral powers
to grant or accept, surrender or lease or execute necessary instruments.
Statutory power of sale:
This power arises contemporaneously with the right to foreclose or with the power to appoint
a receiver in the case of charges. This power is only exercisable only if:
There is no contrary provision in the mortgage instrument.
The mortgagor’s signature is on the instrument, attested to by an advocate and the
mortgagor’s understanding of the signature.
Notice to pay has been served and not responded to in 3 months or some interest has been in
arrears for more than 2 months after due date or there has been a breach of some condition or
other than payment.
The sale may be by private contract or by public auction for mortgages and only by public
auction for charges.
The mortgage is not a trustee of the mortgagor, but the chargee must act bonafide.
Both mortgages and chargees are free to bid at the auction.
Registration of the sale discharges the mortgage or charge, transferring to the purchaser the
property free from all liabilities over which the transaction had priority.

The money realised from the sale must be applied to:

Discharge prior encumbrances
Pay expenses incurred during the sale
Discharge the mortgage or charge debt
Discharge subsequent encumbrances

The residue if any must be handed over to the mortgagor or charger.

Consolidation
This is an equitable right of a mortgagee or chargee holding several mortgages or charges
which enables him to insist that the mortgages or charges be redeemed together. This right is
only exercisable if:
The Mortgages have been executed by the same mortgagor.
All mortgages are held by the same mortgage.
There has been default in respect of all of them.
The securities were still in existence.
PAGE 24
LESSON 9 THE LAW OF PROPERTY
In the case of charges, the right to consolidate must be expressly reserved by the instrument or in one of them
and is noted in the register against all the charges consolidated.

Legal and equitable mortgages may be consolidated. In the words of Davey J in Pledge v White (1896)

“Where at the date when redemption is sought all the mortgages are united in one hand and redeemably by the
same person or where that state of things has once existed the equities of redemption have become separated.”

Consolidation is exercisable against an assignee of the mortgagor provided the right exited before the
assignment.

Suit on the personal covenant

As an alternative to foreclosure, a mortgagee may under Section 68 of the ITPA bring an action for the recovery
of money lent. The right to sue the mortgagor is exercisable if:
The mortgagor executed a personal covenant to repay
The security is destroyed as a result of the wrongful act or default of mortgagor
The mortgagor refuses to deliver possession to the mortgagee who is entitled to such possession.

RIGHT OF REDEMPTION

This is the right of the mortgagor or charger to recover his property by paying the mortgage
money or any balance owing.
Under Section 60 of the ITPA

“At any time after the principal money has become payable, the mortgagor has a right, on payment or tender at a
proper time and place, of the mortgage money, to require the mortgagee to deliver the mortgaged deed if any…
where the mortgagee is in possession of the mortgaged property to deliver possession thereof to the mortgagor.

However, under the Registered Land Act, a charger may at law redeem before the due date, provided the
principal sum and interest due at the date is paid. Under Section 72 (3) where the charger decides to redeem
after the due date, he must give the chargee three months notice or pay three months interest in lieu. In this case,
the charger relies on his equitable right to redeem.

During the contractual period of repayment of the mortgage money, the mortgagor has the legal right to redeem.
This right is jealously guarded by law and equity. The mortgagor or charger may still exercise his right of
redemption until such time that the property is sold or a foreclosure decree is obtained.

Any government or provision which purports to deprive the charger is void. It was so held in Kreglinger v New
Paragonian Meat Company and affirmed in Saleh v Eljofri. Hence the argument once a mortgage always a
mortgage.
The right of redemption at law and in the case of mortgages in equity may be exercised not only by the
mortgagors or chargers but also by:
Executors and assigns
Any person having an interest in the property
Any surety
Any judgement creditor

PRIORITY
At common law,
The first made was first paid whether legal or equitable
Where the equities are equal, the law prevailed i.e. legal mortgages or charges take precedence over equitable
ones.

These rules are incorporated in Section 48 of the ITPA which give priority according to the date of effective
transfer, i.e.
If registration is mandatory, according to the date of registration.
If registration is optional according to the date of completion of the transfer.
PAGE 24
LESSON 9 THE LAW OF PROPERTY

EASEMENTS
Under Section 3 of the Registered Land Act Cap 300, an easement is a:
“Right attached to a parcel of land which allows the proprietor of the parcel either to use the land or another in a
particular manner or to restrict its use to a particular extent…”

The essence of an easement is that the right may be positive or negative. It is positive if it authorises one to use
another’s land in a particular way and negative if it restricts that other in the use of his land.

Characteristics of Easements
The characteristics of an easement were set out in Re: Ellanborough (1956)

Dominant and servient tenement

“There can be no easement properly so called unless there be both a servient and a dominant
tenement”.
It was so observed in Rangely v Midland Railway Co.

An easement must be connected with a dominant tenement.

Must accommodate the dominant tenement
What this requires is that the right accommodates and serves the dominant tenement and is
reasonably necessary for the better enjoyment of that tenement.
Dominant and servient tenements owned by different persons
This is because an owner can not have an easement over his own land.
In Ladyman v Grave (1871), Lord Harthery observed:

“In order to obtain an easement over land, you must not be the possessor of it, for you cannot have the land itself
and also an easement over it.”

Capable of forming the subject matter of a grant

This characteristic means that the right must be within the general nature of rights capable of
being easements. It means that rights to do a positive thing on the servient tenement is an
easement. The category of positive things is not closed; “The category of servitudes and
easements must alter and expand with the changes that take place in the circumstances of
mankind.” As was observed in Dyce v Lady James Hay.

An easement differs from a licence in that it is a proprietary interest and must be appurtenant
to land. It differs from a lease in that it does not confer any possessory rights over the land of
another.

ACQUISITION OF EASEMENTS

Easements may be acquired in the following ways:

By Statute
PAGE 24
LESSON 9 THE LAW OF PROPERTY
The Public Roads and Roads of Access Act confer upon the minister power to create or
dedicate an existing road of access as a public road. Under Section 9, and individual can
apply for permission to construct a road of access over other people’s land if no reasonable
access exists between his land and a public road or railway.
By express grant or reservation
Under Section 94 (1) of the Registered Land Act, the proprietor of land or lease may by an
instrument in a prescribed form given an easement over his land or land comprised in his
lease to the proprietor or lessee of other land for the benefit of that other land.
The instrument creating the easement must specify:
The nature of the easement granted.
The duration of the easement.
Any conditions or limitations affecting enjoyment
The tenements involved in that grant
The grant or reservation of an easement is completed by registration as an encumbrance in the register. An
easement granted by a lease can only exist during the subsistence of the lease.

Under Section 94 of the Registered Land Act, apart from the rights of way and water subsisting at the time of
registration, the grant or reservation of an easement over land governed by the Act cannot be implied. Hence the
rule in Wheeldon v Burrows (1879) does not apply.

Rights of way and water are overriding interests under Section 30. However, the doctrine of implied grants or
reservations including the rule in Wheeldon v Burrows apply under the ITPA subject to the Common Law
qualifications that since the grant is normally construed against the grantor, courts are slow to imply a
reservation in his favour. A grant in favour of the grantee is readily implied. Rights arising from an implied
grant include:
Easement of necessity
Intended easements
Easements within the rule in Wheeldon v Burrows.

The rule in Wheeldon v Burrows is concerned with the determination of what easements ought to be implied in
favour of the grantee of one part of land against the owners of the remainder. The general rule is that when the
tenements were originally in common ownership, the grantee of one part must be permitted the enjoyment of all
the facilities which the grantor found necessary for the effective enjoyment of that part. Under this rule will pass
all quasi-easements which:
Continuous and apparent
Were necessary for the reasonable enjoyment of the land granted
In either case had been and were at the time of grant being used for the benefit of the part granted.

By prescription
Under Section 32 of the Limitation of Actions Act Cap 22, 20 years of occupation gives rise to a right in the
nature of an easement, nec vi nec clam nec precario. However, the right does not take effect until a copy of a
judgement establishing its existence is registered against the servient tenement pursuant to Section 94 of the
Registered Land Act.

EXTINGUISHMENT OR DETERMINATON OF EASEMENTS

Easements may be extinguished or come to an end in any of the following ways:

Release or abandonment
At Common Law, the release or abandonment must be by deed unless the servient owner in reliance on an
agreement to release has so altered his position that it will be unjust to regard the easement as continuing in
which case equity dispenses with formalities to hold the dominant owner to his bargain. If abandonment is
alleged, the surrounding circumstances of non-user must be looked at to determine intention of not resuming the
user.

Unity of seisin
PAGE 24
LESSON 9 THE LAW OF PROPERTY
Acquisition of full ownership in both the dominant and servient tenement destroys all
easements. Where only a lease is acquired in one of the tenements, the easement is merely
suspended and subsists if at the end of the interest the tenements are owned by different
persons.
By eflluxion of time
Under Section 97 (2) (a) of the Registered Land Act, upon application of any person affected
by the easement, the registrar may cancel registration of an easement if satisfied that the
period of time for which it was intended to subsist has expired.
By occurrence of an event
The registrar is empowered to cancel the registration of an easement upon application by the
party affected, if he is satisfied that the event upon which it was intended to determine had
occurred.
By merger of interest
Under Section 44 (c) the Registered Land Act, an easement determines if the dominant and
servient tenements vest in the same person, provided:
The tenements are combined i.e. brought under one registered title
A declaration of merger is recorded on the register.

By judicial discharge
Under Section 98 (1) of the Registered Land Act, the court is empowered upon application by
the person interested in the land affected by an easement to by order extinguish the easement,
if satisfied that
The easement is obsolete by reason of changes in the character of the property, the neighbourhood or any other
material circumstances
The easement impedes public or private development without giving any practical benefits to the dominant
owner
The discharge will not injure the dominant owner.

However, the court is not bound to grant a full discharge if a simple modification sufficed.

PROFIT APRENDRE
Section 3 of the Registered Land Act Cap 300 defines a profit as

“the right to go on the land of another and take a particular substance from that land, whether the soil or products
of the soil.”

Therefore, a profit aprendre enables the grantee to take something capable of ownership from the other person’s
land. A profit differs from an easement in that:
Owner enjoys possessory rights over it and can maintain an action for trespass or nuisance for its infringement.
Whereas an easement can be acquired by an indefinite and fluctuating class of persons, a profit cannot.

Acquisition of Profits
Express Grant
Under Section 96 (1) of the Registered Land Act,

“the proprietor of land or a lease may, by an instrument in the prescribed form, grant a profit.”

Under Section 96 (2) of the Act, the instrument must specify whether it is enjoyed:

In gross or as appurtenant to other land or a lease

By the grantee exclusively or by him in common with the grantor
PAGE 24
LESSON 9 THE LAW OF PROPERTY
The grant is completed by:

Its registration as an encumbrance in the register of land or lease

Its registration in the property section of the register of land or lease if appurtenant thereto
Filling the instrument

The grant of a profit cannot be implied since the rule in Wheeldon v Burrows does not apply to profits.

Prescription
At Common Law, a profit may be acquired by prescription but is only effective after
registration unless it was obtained before the first registration in which case it becomes an
overriding interest. Profits are transferable and can be dealt with as any other property.

Extinguishment or determination of profits

Unity of Seisin
This is a situation whereby the owner of the profit acquires ownership of the servient
tenement.

Release
Under Section 97 (1) of the Registered Land Act upon registration of an executed release
from, the registration of a profit is cancelled.

Alteration of the dominant tenement

If a profit is appurtenant to land, any unrevocable alteration in the nature of the dominant
tenement raises a presumption in favour of extinguishments.

RESTRICTIVE COVENANTS OR AGREEMENTS

This is an agreement by which a proprietor undertakes to restrict the use of his land in a
particular manner, for the benefit of some other land. Restrictive covenants or agreements
may arise between:
Landlords and tenants
Owners of adjoining fee simple or absolute estates

It therefore follows that the creation, enforcement and determination are governed by the Law
of Tenancies and the Law of Contract.

Creation of Restrictive Covenants

As a general rule, a restrictive covenant or agreement cannot be created by parol.

Under the ITPA, a contract creating a restrictive covenant need not be under seal. This is a consequence of the
Common Law rules enunciated in Tulk v Moxhay (1848)

Under Section95 (3) of the Registered Land Act, a restrictive covenant must be in a prescribed form and
becomes effective when registered. Discriminative restrictive covenants or agreements are void ab initio

The existence of privity of estates only denotes a relationship of landlord and tenant between parties not privy to
the tenancy agreement e.g. a situation where the original tenant being the covenantor, or his landlord assigns his
interest to a third party. In such a situation, enforcement is governed by the rule in Spencer case (1583) which
is to the effect that both the benefits and the burdens of such a covenant will run at law and in equity only if the
covenant is one that touches and concerns the land of the covenantee i.e. if the nature, quality and mode of user
of the land in question would be affected by the observance or no-observance of such a covenant.

It is insufficient that some personal advantage may be derived from the covenant.
PAGE 24
LESSON 9 THE LAW OF PROPERTY
Where there is no privity of estate or contract, the general rule at Common Law is that no covenants are
enforceable:

At Common Law, an assignee of the covenantee could always enforce the benefit of a covenant provided
It was touching and concerning the land.
The covenantee had a legal estate in the land benefited
The assignee was the owner of the same estate as the covenantee

In equity, the burden of a restrictive covenant could be enforced under the rule in Tulk v Moxhay provided:

It was the common intention of the parties that the covenant should benefit the land of the covenantee. This
means that there must be a relationship of dominancy and serviency between the tenements involved.
The assignee of the covenantee must show that the benefit of the covenant has passed to him. Therefore, if he
only acquires part of the original tenement, he must show that the covenant was specifically annexed to that part
of the land.
the servient tenement has not passed to a bonafide purchaser for value without notice. Where privity of contract
does not exist, Section 95 (4) of the Registered Land Act applies and unless a contrary intention appears in a
restrictive agreement or covenant.

“…not only the proprietors themselves but also their respective successors in title shall be entitled to the benefit
and subject to the burden of it respectively…”

The effect of this provision is to make all the benefits and burdens of restrictive covenants enforceable at law
provided the land is registered and the covenant is noted on the register, hence a bonafide purchaser for value
without notice is not protected.

Extinguishment or Determination of Restrictive Covenants

According to Cheshire

“The covenantee (including his assignee) is deprived of his right to enforce the covenant if he has submitted to a
long course of usage wholly inconsistent with its continuance as when he remains inactive for a considerable
time while open breaches of the covenant are taking place, if he disregards breaches in such a way as to justify a
reasonable person in believing that future breaches will be disregarded of if the character of the neighbouring in
which the protected property lies is so entirely altered that it would be inequitable and senseless to insist upon
the rigorous observance of a covenant that is no longer of any value.”

These rules apply in all ITPA transactions.

PAGE 24
LESSON 9 THE LAW OF PROPERTY

REINFORCING QUESTIONS

The common law conception of land is expressed by the maxim “cujus est solum, ejus est usque ad coelum et
ad inferos”
What is meant by this Maxim and to what extent has the principle been modified by statute law in Kenya?

Identify the salient exceptions to the common law maxim of quic quid plantatur solo solo cedit.

What do you understand by rights in alien solo? Illustrate your answer with specific examples.

Distinguish between:
fee simple and estate pure autre vie
equitable and emoviolating waste

What do you understand by “absolute proprietorship”

Mzee Koki who owned 10 acres of land in Karachuonyo died in 1956. He had five wives and 20 children. Al
his wives, namely, Atieno, Adhiambo, Awuor, Mildred and Jacinta cultivated the same piece of land for many
years before and after Mzee Koki’s death. Atieno, the eldest widow of Mzee Koki insists that the 10 acres
belong to her. Mzee Koki had other smaller pieces of land for the other wives. A group of Luo elders have
already resolved the sipute in favour of Atieno. Recently, Atieno had the land registered in her name under the
Registered Land Act, Cap 300. Mzee Koki’s other widows have refused to vacate the land and Atieno is
aggrieved. Advise her.

Identify and explain the salient essentials of leaseholds.

What is a tenancy at sufferance?

By a written agreement for lease dated June 2nd 1995, Jip Ltd. demised a shop to Sub Ltd. for 6 years. Sub Ltd.
took possession of the shop thereafter and paid the agreed rent. Unfortunately, Jip Ltd. forgot to register the
PAGE 24
LESSON 9 THE LAW OF PROPERTY
agreement as required by law. The 6 years have now expired but Sub Ltd. has refused to give up possession of
the premises. Advise Jip Ltd.

Describe the principal obligations of the lessor and demonstrate how the lessor enforces his rights in the event of
default.

Examine the circumstances in which a tenancy is terminable by forfeiture.

What do you understand by “mortgage”?

Identify and explain the various categories of mortgages recognised by the provisions of the Indian Transfer of
Property Act.

Examine the salient obligations of mortgagors and chargers.

Distinguish between “equitable right to redeem” and “equity of redemption”

Describe the remedies available to the mortgagee or chargee in the event of default by the mortgagor or charger.

Distinguish between an easement and a profit aprendre.