This is a fairly generalised topic under Kenya law that
treats various topics as indicated. The intention is to get a legal
profile of the existing framework within which issues relating to
development and administration of property rights in land.
Land as property
Its centrality in the production process and that simply means that land
remains the major means of production as compared to the other factors
of production and in our situation an agricultural based economy, land
assumes a greater significance because we all know that agriculture is
the main stay of our economy even with the emphasis placed on the drive
towards industrialisation.
Consequently all transactions that take place in relation to land are
bound to be more complex than if you are dealing with other forms of
property and hence the need to formulate an appropriate framework within
which the obligations that arise are dealt with. The other
characteristic is the scarcity of land, this is purely a function of the
fact of our increasing population and the pressures that are exerted.
Several implications emerge e.g. the fact of guaranteeing land or access
thereto for the people becomes almost impossible. This means that land
cannot just be treated like other species of property that one is
conversant with. Elasticity is another factor. It is the case that
one cannot increase supply of land from what one has, it does not expand
and so its availability in terms of supply remains virtually constant.
That complicates matters and hence the need for regulation.
Land bears what other forms of property cannot match, that is its
capacity to accommodate various interests either simultaneously or and
this is in reference to its ability at any given time or within a given
progression take care of various interest that may be conferred to
different people without there being any conflict whatsoever. for
example where there is a grant of leasehold interest, a right goes out
or certain benefits are conferred. It is of that category that can
entertain simultaneous or successive interests.
The fact that land is attached to each other creates or gives rise to
certain mutual rights and obligations, notable among such rights would
be the right of support that my property which is adjacent to yours
expects and is entitled to, those rights and obligations arise and they
are enforceable at the behest of whichever party has been robbed. That
places a complex scenario and there is a legal framework for determining
what obligations will ensue by reason of these obligations. The fact
that it is indestructible makes it unique in a sense, although land is
amenable to waste, it is virtually incapable of being destroyed.
There is the aspect relating to its ability to be conceptualised both in
vertical and horizontal terms and the significance attached to this is
understood when one considers the notion of property which means that
contrary to traditional belief, it is possible to have within the same
physical solum property that is suspended on top of 3rd or 2nd floor
owned by different people that is made possible through the concept of
sectional property unlike in the past where a title document could only
issue from a given area this was the traditional notion. It is now
possible to have several titles depending on how many flats are there in
one piece of land and that makes it unique. The issue of mutual rights
and interests and obligations has to be dealt with. There are certain
things that have to be necessarily shared so there are rules that will
regulate those arrangements. Facilities such as parking, pools etc.
On account of the foregoing characteristics which are associated with
land as a form of property, there are certain important issues which
arise true principle issues relate to
The manner in which land can be commoditized so that it is placed at par
with any other forms of property that can be availed in the market;
The issue as to who exercises control over it.
In the context of development and administration of property rights, the
first aspect can be construed as relating purely to the choice between
operating an unregistered land system on the one hand and that of
operating a recorded or registered land system on the other. In a
nutshell this boils down to no more than a comparative perspective of
the merits and demerits of these two systems one of the registered
system and the other one of recorded system. The second aspect relating
to control is related to the first one in the sense that it is the
entity on whom such responsibility falls that will ultimately regulate
all manner of transactions or activities which may be undertaken in
relation to land. In terms of regulations one has to think about terms
of levels that are created, the duties and obligations that arise and
their enforcement so that their involvement leads us back to the noted
quality of land as a form of property.
Registration of land offers the surest route towards the commoditisation
of land and availing it easily and safely in the market place in the
same way as one would expect in the other types of goods. What
registration does is that it records interest in land so as to
facilitate their ascertainment. As a process registration can be
understood as involving recording of interests in land so as to
facilitate and it makes effective any transactions in relation to such
land by availing all material details on such property which can be
easily accessed through carrying out of a search of the register. Once
duly effected registration has the effect of passing an interest in land
in favour of the person so registered. Of course this then effectively
makes registration as a process to serve two broad functions
As a documentary manifestation of land as a commodity;
Avails a mechanism for providing vital information or a data bank for
regarding the exact status of any registered property at any given time,
this presupposes that the register will be updated at all time to
reflect this position.
In comparison to the register system, there has to be something noted
and under the system, title to property is very difficult to determine
the process involved in determining who owns what. The process is
tiresome, risky and expensive and fraught with uncertainties. It is the
traditional practice of title investigation if one wants to appraise
themselves of the title. That is deduced historically going back to
what transactions may have transpired regarding that property regarding
that picture. The entire process is conducted without the benefit of
registration and the purchaser has to investigate the unregistered title
to ensure that there are no adverse claims to such property which
precede the transaction, which is the decision to buy the property which
accordingly means that the purchaser bears full responsibility for
whatever is the outcome. The duty of caring that an eventuality such as
any claims with regards to the same property do not spring after he has
ostensibly acquired the property. That has its risks as well, there
are a number of disadvantages which are considered as transferring to
advantages that the registered system carries with it. For property
buyers, it is the trend that this is almost being replaced by a
compulsory requirement in most jurisdictions that the registration of
title to land be the rule rather than the exception. This system has
been there a long time and it is not until the early 1920’s that they
started phasing it out. It is still common in areas that have not been
declared adjudication regions.
ADVANTAGES
The registered land system give title assurance so that in terms in
administering property rights we have that title assurance that bestows
confidence on any person dealing with the property in the sense that the
owner will have been portrayed as having a good title to pass with
regard to the property. Such assurance is achieved through the process
of maintenance of organised or systematic state recording and issuance
of title document system to each successive owner of the property in
question, which then is reflected in the register in a chronological
order, it is easy to learn the history of the property if one wishes.
It also establishes a system of public data bank of some sort which
contains records of all property titles such data can be accessed easily
and is available to almost the entire public through conducting a
search so that any interested persons can easily take advantage of that.
The other advantage is that it makes available a property map plan of
scientific accuracy which is based on survey work that proceeds the
process of adjudication and registration. Such a map is revised and
updated regularly so as to offer a clear picture in terms of identifying
the property so one cannot be easily fooled by fraudsters.
In certain cases this system also serves to preserve in a secure place
important documents of titles relating to various properties which would
otherwise be completely lost or unsafe if left in private hands. It
has also been suggested that the system serves as a constructive public
notice i.e. the records that the system serve as a notice to all and
sundry as to the true status of the registered property. By reason of
that fact, it has been suggested further that it protects potential
purchasers for value against other unregistered adverse interests which
may have been acquired prior to the purchasing of the property in
question since such unregistered interested are not reflected anywhere
in the register and are therefore deemed to be unknown. By protecting
the purchasers, they are effectively cushioned against uncertainties
that characterise the unrecorded system. It has also been suggested
that given the current policy towards the registration system, it helps
in an important way towards abolishing the earlier inconclusive and
costly title investigation system which characterises the unregistered
system. Instead it seeks to substitute one that is final and absolutely
authoritative which can be carried out at the lands registry using the
assistance of experts in charge of the registry. Again the fact that it
leads to the creation of a register means that all interests that
affect that title be they mortgages, charges or whatever burdens that
the title is subject to will easily be disclosed so that one makes an
informed choice so that short of overriding interests that are never
reflected on the register, everything else that affects that title would
be evident and made available to the interested parties. The process
also leads to the proprietor of the particular property an official
title document. That official document bears details of the entries to
be found in the register but most importantly it is a document that can
be used by the proprietor in a number of transactions because it is
valid and legitimate and the business practices whether it is seeking
financial or offering security in other aspects, it makes it possible
for the owner to rely on such official documentation.
Register system carries the provision of short and complicated forms
that can be used in complex deals like when you want to take a mortgage,
charge etc one need not refer to an expert as it simplifies some of
these activities. The fact that the intention is to create a public
record means that there is a mechanism through which the public can
access. So a search can be conducted at the relevant registry to enable a
person acquaint themselves with any facts regarding the property.
There are no guarantees as it were so the search is usually self
conducted. The official search is the one conducted by the officials of
the registry and in terms of accuracy, the registry is vouching that
whatever information you have been supplied with as of that time reflect
accurately the true position regarding the status of the property, it
is more expensive in terms of fees required but much safer.
A registered system would to a large extent expose any defects which may
have occurred in terms of various dealings with regard to land
transactions, as the registry will not accept faulty documents until and
unless such documents conform with the necessary statutory
requirements. It streamlines the whole exercise. Because of the
perceived advantages, it has been argued that it is perceived to reduced
litigation in relation to land simply because it filters issues that
make litigations arise in the first place. It has also been suggested
that since this is a state maintained and run system, what is created is
some insurance scheme to indemnify those incurring any losses by reason
of mistakes or omissions in the register. The state insurance scheme
will meet the costs arising to any party that may suffer such damage by
reason of an error in the register.