INTRODUCTION
Proprietary
rights are defined as a right that is part of a person’s estate, assets, or
property, as opposed to a right arising from the person’s legal status. Thus,
proprietorship can easily be termed as being a fundamental cornerstone of the
entire concept of property. Alongside it, there are several other vital
enigmas, among them being ownership, tenure, registration etc.
Without
prejudice to the significance of all other salient concepts of property, it can
be arguably stated that proprietorship in land, though being the most basic
form of ownership of property, is, by far, the most important. Hopefully,
through the following discourse, it may be laid bare just how this comes into
play. This shall be done by analyzing proprietorship in land vis-à-vis other
forms of ownership of land, as well as seeking to expound on the significance
as well as justification for State regulation in the ownership of land.
The
other relevant concepts of ownership that have been elaborated upon include:
1.
Joint tenancy
2.
Tenancy in common
3.
Leases
4.
Sectional properties.
Further,
the involvement of the State in various ways in each of the above, as well as
other aspects relevant aspects of land ownership, has been touched on.
1. JOINT TENANCY
Joint
tenancy is defined as:
“Undivided ownership shared
by two or more persons. Typically, an owner's interest, at death, passes to the
surviving owner or owners by virtue of the right of survivorship.”[1]
It
is a relatively common form of land ownership which bears a few similarities
with sole proprietorship.
Similarly
to tenancy in common, joint tenants do not have an unlimited share in the land
they own. They share the title to that land on a strict equal share basis.
However, upon death, this share passes on to the surviving owner of the land.
This is in contrast to the unlimited and indefeasible title held by a sole
proprietor of land.
In
addition, land owned jointly cannot be bequeathed by the owners to any
beneficiary through the operation of a will while the other owner is still
alive. This differs greatly with the free will of sole proprietor to gift his
property to any beneficiary he deems worthy.
2. TENANCY IN COMMON
This
is a form of ownership whereby the share in the property owned by two or more
people is subdivided, with each individual owning a share in that property.
This share they are entitled to shall, upon their death, pass on to whomever
they bequeath that title through a will, or where there is no last testament,
it shall pass on to his dependants by the rules of intestacy as illustrated in
the Indian case of Shirdar Ghose v Harimohan Sahu.[2]
In
both of these forms of ownership of land, the owners retain their proprietary
rights to enjoy or dispose of their property as they may wish. This is subject
to any over-riding interests that may lie on the land as well as the
Government’s control over such activity (eminent domain).
It,
however, contrasts with sole proprietorship in that the owners of this property
in common do not have absolute dominion over that parcel of land, only owning
it in the shares that they have allocated themselves. Of note is that these
shares do not have to be equal and can be of any portion that the owners
determine among themselves.
3. LEASES
The
Land Act of Kenya defines a lease as “the grant, with or without consideration,
by the proprietor of land of the right to the exclusive possession of his or
her land.”[3] It is a widely common
aspect of land ownership and bears significant similarities with other forms of
proprietorship.
First
off, both leases and usual proprietorship of land are subject to any
over-riding interests that may encumber such property. This arises under the
provisions of Section 28 of the Land Registration Act.
Again,
both forms of ownership are recognized under both civil and common law
jurisdictions. This shows just how widespread both concepts are.
Conversely,
the contrasts between these two concepts are unavoidable. Chief among them
regards registration of either form. Under Kenyan law, all proprietorships
without exception are to be registered as per the requirements of the Land
Registration Act. Leases, however, do not subscribe to this very same
provision. As per Part IV of the Land Registration Act, only long-term leases
(specifically those of seven years and more) are subject to registration.
In
addition, leases and proprietorship differ in their permanency. Whereas leases
are for a stipulated period as agreed between the lessee and the lessor,
proprietorship, on the other hand, subsists until such a point as the
proprietor may wish to dispose of such interest in land through transfer.
Lastly
the restrictions applying to both forms of land ownership differ. Proprietors
are only subject to the will of the Government (in exercise of its eminent
domain over land) as well as any encumbrances that may lie upon that land (like
over-riding interests). As for the lessee, he/she has to deal with any
restrictions or burdens placed upon them by the lessor as well as those that an
ordinary proprietor would have to deal with.
4. SECTIONAL PROPERTIES
This
concept of property ownership is governed by the Sectional Properties Act.[4]
This
form of land ownership does share a number of essential similarities with that
of ordinary proprietorship. One of these similarities is whereby a charge lies
upon the sectional property. Just as it happens in normal proprietorship, the
interest of the charger shall continue to lie upon that property even when the
property has been transferred as is provided for in the Land Act.[5]
Similarly,
the over-riding interests that easements bear upon property under normal
proprietorship as provided for by Section 28 of the Land Registration Act[6] also bear upon sectional
properties. This is statutorily provided for under Section 14 of the Sectional
Properties Act.[7]
However,
there are also some stark contrasts between the two forms of land ownership.
First
among them arises under Section 4 of the Sectional Properties Act providing
that sectional property registration shall only be possible where two or more
units are involved. This is in stark contrast with that of ordinary
registration of other properties, which requires only one unit.
Also
regarding the registration of such sectional properties, upon registration of
the parcel or portion of land containing the sectional properties, the
Registrar closes that register, opening a separate one for each of the
sections/units entailed in that portion. This differs from the usual manner of
registering the portion of land in a singular register without the need to open
up any additional ones.
Another
glaring difference arises in the management and legal recognition of the
proprietors of these sectional properties. Section 17 of the Sectional
Properties Act provides for the establishment of a Corporation, complete with
by-laws and statutory powers, which shall be composed of the various owners of
the units in that sectional plan. This Corporation shall be capable of suing
and being sued[8]
just as a limited company does (though the provisions of the Companies Act[9] will not apply to it).
This is contrary to the individual recognition by the law, of a sole proprietor
of any other form of property, rather than this ‘corporate’ concept.
Lastly,
the indefeasibility of a title as envisioned by Section 26 of the Land
Registration Act does not seem to apply to sectional properties. This is
because the same is not provided for by the Sectional Properties Act as is
apparent in Maathai & 2 others v City Council of Nairobi & 2 others.[10]
JUSTIFICATIONS FOR STATE
REGULATION IN LAND OWNERSHIP.
a)
Registration of titles
Titles are the manifestation of one’s ownership of
land, and a deed of the same is conclusive legal proof of it. The Land
Registration Act expresses that registration of a title in land vest in the
proprietor the absolute ownership of that land. In order to safeguard the
sanctity and official legal nature of this process, the power and intervention of
the Government is highly required.
The Government
has the manpower, reach and resources to cater conclusively for this process.
This is done primarily through the drafting of the very legislation that
controls the process.
Secondly, the Registrar of Lands is a Government-run
department, maintaining a register of lands[11] provides a permanent,
public record of all land titles in Kenya in the event of disputes or queries
which becomes essential during land transactions as well as land disputes like Gladys
Wanjiru Ngacha v Teresa Chepsaat & 4 others.[12]
b)
Sourcing of State revenue
One of the primary reasons for the State’s involvement
in land ownership and the processes involved therein is so as to collect
sufficient revenue to sustain the Government’s coffers. Various land
transactions have taxes levied on them, the most common of these being stamp
duty. Therefore, a significant amount of any land transaction goes on to
further finance the Government and assure Kenyans of continued service
provision.
Within areas controlled by local authorities, there
exist land rates that regularly have to be paid to the authority for the right
to use that parcel of land or property. This is a major source of revenue to
these local authorities (and now to the various counties) as it is used to
sustain their funds and facilitate public service provision.
c)
Police Power
Article 66(1) of the Constitution states that:
“The State may regulate the use of any land
or any interest over any land, in the interest of
defence, public safety, public order, public morality, public
health, or land use planning.”
Hence, police power is the inherent power of the State
to regulate land or land use without necessarily appropriating it. This is done
so as to ensure that national resources are properly used.
This power is an import from American legislation,
previously exercised only as a matter of fact but now firmly cemented in the
Constitution. It exists to protect the State’s interest as well as public
interest in various essential matters.
Though it may prima facie seem arbitrary in nature, it
must be noted that the power is limited to the parameters listed in the
Constitution, which double as its justification. An example of this whereby the
State limits the height/maximum number of floors that buildings in the vicinity
of an airport, more-so a military one, can have. Further, Parliament is
duty-bound to formulate and enact legislation to govern and control this
process.[13]
In Eubank v Richmond,[14] Chief Justice Marshall
expounded on police power by stating,
“It extends
not only to regulations which promote the public health, morals,
and safety, but to those
which promote the public
convenience or the general
prosperity”
This justification of the State’s involvement is an embodiment
of the doctrine of eminent domain, determining just how far one can go in
exercising their individual property rights, while being limited by the
interest of the public in that land.
d)
Prevention of detrimental land practices.
The two main detrimental land practices that the State
aims to eradicate through its involvement are land fragmentation as well as
perpetual ownership.
Perpetual ownership of land would occur upon the
expiration of a lease and the immediate former lease happens to renew that
lease without the involvement of other interested parties. This was a common
occurrence under the now obsolete land law regime especially with colonial
settlers, but is now expressly countered by the Constitution which provides
that non-citizens shall not be granted leases that exceed ninety-nine (99)
years.[15]
Further, the Land Act[16] provides that upon expiry
of a lease, the radical title to the land shall revert to the National Land
Commission but the immediate former lessee (if a Kenyan citizen) shall hold
pre-emptive rights to reallocation of that land.[17] This aims to ensure that
no-one is guaranteed of an endless claim to land (unless it is under freehold
tenure), but that land is allocated to the avenue that makes the productivity
out of it.
Secondly, the State intervenes to prevent
fragmentation of the land. It is a well-established fact that the splitting of
land portions into several smaller and sometimes scattered units denies the
holder of title to that land from benefitting from the exploitation of the
potential economies of scale that would accrue were these units consolidated
into larger collective units.
Were it not for State intervention, through
legislation such as the National Land Commission Act, such reckless
apportioning of land parcels would be rampant, hugely hampering the
productivity of such land. The State comes in, through the embodiment of the
National Land Commission, governing this allocation process so that it is not
carried out in a haphazard manner likely to harm the general national interest
in development.
e)
Protection of public interest.
Public interest is defined as “something in which the
public as a whole has a stake; esp., an interest that justifies governmental
regulation”[18].
From this very definition, the absolute need for Government intervention is
evident. As a concept, public interest exists so as to protect affairs that
will have a general bearing on the welfare of the country’s populace.
This form of protection becomes evident in the
Government’s exercise of its eminent domain over land through compulsory
acquisition of parcels of land. This is statutorily provided for in the Land
Act, No. 6 of 2012[19] and is defined as as the power of the state to deprive or
acquire any title or other interest in land for public purpose and it is
subject to prompt payment of compensation.[20] It is chiefly used to
protect or ensure the efficient exploitation and utilization of public
resources. This may occur through the construction of roads, building of public
facilities, and mining among others. Hence, the Government’s direct involvement
in this is needed to ensure there is no discrimination, proper distribution of
the national ‘cake’, as well as the adequate compensation of all individual who
lose their title to land.
However,
it must be noted that this must be done without even a semblance of
discrimination as was ruled in Ocean View Plaza Ltd v Attorney General[21] where it was demanded by
the Court that any such process should be carried out “uniformly”.
The
protection of the public’s interest is also evident in the implementation and
exercise of police power as has already been discussed. The parameters stated
by the Constitution[22] are all quintessential to
the interest of the general public. Thus, the exercise of this power is seeks
to ensure that the individual enjoyment of one’s title does not subsist to the
detriment of the more important interests of the public.
Conclusion
Eventually,
it is evident from the above entries that the Government’s intervention in all
land ownership matters is a vital and indispensible tool necessary to maintain
a semblance of law and order in such a potentially chaotic aspect of a nation’s
existence. Without such involvement, Kenya’s land sector would be drawn into an
even far-deeper abyss of land mismanagement than we are presently.
As
for the various forms of land ownership, their diversity and intertwined nature
is evidence of the complex affair that land ownership can be and is. Without
these highly-developed concepts of law to govern such ownership, the modern
understanding of land ownership, as we know it, would be, sadly, non-existent.
REFERENCES
1.
Black’s Law Dictionary, 9th Edition
2.
Land Act, No. 6 of 2012
3.
National Land Commission Act
4.
Land Registration Act, No. 3 of 2012
5.
Sectional Properties Act, No. 21 of 1987
6.
The Constitution of Kenya, 2010
[1] Black’s Law Dictionary. Ed. 9.
[2] AIR [1964] Ori 141.5
[3] Section 2
[4] No. 21 of 1987
[7] Ibid.
[9] Section 17 (5), ibid.
[11]Section 7 of Land Registration Act
[13]Article 66(2) of the Constitution of Kenya,
2010.
[14]226 U.S. 137
[15]Article 65(1), ibid.
[16] No. 6 of 2012
[17]Section 13(1), ibid
[19] Section 107
[21] [2002] eKLR
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