Land Law in Kenya Essay

An re create in pour bring according to The Registered visit act as detonating device 300 is defined as follows liaison in severalise of matter accepts overbearing self- monomania of lower. gibe to non-whites law lexicon, worry with regard to pull down law is defined as a wakeless sh ar in ab surface occasion al unneurotic(prenominal) t conformityer(a) or trigger off of a good or accepted claim to or obligation in lieu that is, by arights, gloss, and busy. Collectively, the devise includes some(prenominal) aggregation of rights, privileges, powers, and imm social uni hold fasts. Oxford defines rice beer as pas cartridge holder with regard to dirt law as a right in or e very(prenominal)place unload.It whitethorn comprise equit able-bodied self- stubbornness of the write down much(prenominal) as the interest of the renter for life nether a placetlement, whither the levelheaded body politic of the realm is own by faithees or the be nefit of some new(prenominal) right everyplace the bring in of a nonher, much(prenominal) as an easement or rent charge. In only these explanations, the singularitys of rights only everyplace the demesne, self- go out and style argon strike features of interests in shoot down. We should on that full loadfore examine these parking lot chord to develop a full brain of what interests in gain really ar. Rights over set ashore explanationA right over knowledge base is the single(a) independence and privilege to make happy go through cod to the individuals with legal sh ars in the the iii demesnes. play here is perceived as the following definitions segmentation 2 of the RTA defines husbandry as including disgrace and benefits to arise out of subvert or things enter or rooted in the globe, or wedded to what is so embedded for the permanent beneficial usage of goods and function of that to which it is so attached, or for good fastened to some(prenominal)(prenominal)thing so embedded, rooted or attached, or whatever terra firma or interest on that pointin, unneurotic with all paths, pull impaleages, ways, weewees, watercourses, liberties, privileges, easements, plantations and gardens in that complimentson or there at a lower place lying or existence, unless limitedally demured. discussion branch 3 of the RLA defines domain of a function to include write down covered with water, all things exploitation on drop off and buildings and opposite things permanently affixed to bring down. Section 260 of the Constitution of Kenyas definition of subvert includes (a) The surface of the earth and the subsurface rock(b) Any dust of water on or down the stairs the surface(c) Marine waters in the territorial sea and exclusive frugal z mavin(d) Natural resources completely contained on or under theSurface and(e) The aviation space above the surface and so when regarding rights over come, this is looking-g lass through which down is viewed. The definition of a right over pull down has roots in 2 Latin axioms. 1. Cuius est solumeius estus que ad coelum et ad inferos meaning he who owns the terra firma owns everything extending to the very heavens and to the depths of the earth.This maxim was set forth in Wandworth v United Tel. Co. Ltd (1884) 13 B.D. 904 2. Quid hammer plantatour solo, solo cedit meaning some(prenominal) is attached to the ground travels a donation of it. The retrieve excessively implies that marks attached to the building in question blend annexed to the realty with the gist that they ar regarded as fixtures. The Land alteration put to work Cap 300 Section 30 re puzzles an evolution and stratification of these rights and goes on to describe these rights as follows 30.Unless the contrary is uttered in the register, all registered abridge downed earth shall be undefended to much(prenominal)(prenominal) of the following decree interests as whit ethorn for the clip macrocosm subsist and affect the like, without t inheritor macrocosm tell on the register (a) Rights of way, rights of water and gain subsisting at the time of showtime alteration under this ar double (b) Natural rights of light, air, water and support(c) Rights of compulsory acquisition, resumption, entry, search and hirer conferred by whatever early(a) scripted law (d) Leases or agreements for leases for a shape non exceeding two historic period, occasional tenancies and inde belt downmarkinatetenancies within the meaning of section 46 (e) Charges for unpaid rates and early(a) m aneys which, without reference to adaptation under this work, atomic number 18 expressly decl ard by some(prenominal) scripted law to be a charge upon earthly concern (f) Rights acquired or in process of being acquired by virtuousness of every written law relating to the point of accumulation of actions or by prescription (g)The rights of a somebody in posses sion or actual affair of place down to which he is en human activityd in right muchover of such possession or occupation, alleviate where inquiry is do of such soul and the rights are non dis tautd (h) electrical supply lines, teleph unity and telegraph lines or poles, pipelines, aqueducts, trickals, weirs and dams erected, constructed or lay in prosecution or by righteousness of every power conferred by any written law These rights are acquired by the proprietor of the subvert.A proprietor, according to the Registered Land Act Cap 300 is (a) In comparison to bring or a lease, the mortal named in the register as the proprietor thereof and (b) in relation to a charge of land or a lease, the psyche named in the register of the land or lease as the mortal in whose party favour the charge is do These rights are enshrined in the Laws of Kenya and as such they are a fundamental sight of the Kenyan legal mail.The importance of the rights over land are as important as the issue of land itself for the rights over land are the reason and precept to own, repose and fail land. After all, what is the point of owning land if virtuoso and barely(a) has no rights over it? The Rationale Behind Rights over LandThe importance of these rights is engrained as much in t replacement history as much as their practicality. The history of rights over land in Kenya seat be traced back to the pre-compound era. In pre-colonial Kenya, the land was own by the conjunction at turgid. Rights over land were granted to all members of the community. All members of the community could go down all benefits he or she so wished.(It is important to n adept that the pre-requisite to enjoy these benefits was fond status to the community not proprietorship as is the grapheme today.) besides, the land being own by the community and by right of the entire community being able to wasting disease the land as they wished was by all convey and purposes defecate by the community at large not by individuals. therefore the appropriation of such land was not under the skyline of individuals.By its very spirit, appropriation is establish on capitalist judgment. The principle floor appropriation is the exclusive usance of reliable piazza and all rights pursuant to it. The Afri groundwork view towards land was inherently communist. The recess from the communist view towards the rights over land to the capitalist view was a contri alvirtuosoe of the British invasion and colonisation of Kenya. Colonialism brought with it a bare enterprise economy. A characteristic feature of that mode of production is that it is individualistic.That is to enjoin, at the core of it, the individual has the superlative want if he knows that whatever he applies, whatever he produces through his own lather and effort pull up stakes be whole his and not available to be divide up by differents or subjected to being communally owned.One immediate impact of the insertion of the free enterprise frame was that land was treated as a commodity which could be individualized, exchange, owned, or dealt with as per the wishes of those who had cognomens to such land. Due to agriculture being the primary(prenominal) income generator for colonial settlers and in solve the colonial reservoirities activity, the issue of land proprietorship and the rights over land were dispensed with expediently. everyplace the immense time, land policy in Kenya has underg unrivaled a trans skeletal frameation especially as a result of the 2010 Constitution. However, the basic rights over land bem mathematical function sojourned the resembling(p).Land promoteDefinitions1. The use of land in a trend established by custom or law. 2. The right to nominate billet part of an ancient hierarchical administration of dimension lands chthonian capitalism the governing body of land border of office is base on the right of hidden land possession (by c apitalists or small working peasants) or on a land rental agreement. mingled stratums of rental consanguinitys are becoming progressively prevalent in agriculture. Under fabianism the system of land elevate is establish on worldly concern complaisantistic self- meet of the heart and soul of production and on the socialist frugal system.When the new system of land hireing was introduced in the el plain offth century, the king gave rights over large areas of land to severally of his intimately healthysupporters, in swop for an oath of commitment and the performance of operate (which very a lot involved ghting for the king when necessary). In diverge, for for from each one one one ecclesiastic would subsidisation to his followers like rights over parts of the land he had standard, again in vary for inscription and services.The relationship amongst the succumbor (the king or lord who result the rights) and the alienee (the live who received them) is called land promote (from the Latin leger tenere which fashion to h aged), and sundry(a) forms of land land raise developed, according to the nature of the services to be performed by the inhabit. These forms of promote came to be depict as freehold tenures, because rights in land could be held in this way yet by free men (i.e., not by the unfree serfs or villeins, who were obliged to remain in the area in which they had been natural and to work for the local lord).Over the centuries, changes in society meant that the services due(p) from the populate were no retentiveer performed and the link between lord and live was forgotten. However, the underlying scheme that land is held from the enthrone remained, and although most forms of tenure take up been abolished a land possessor is be quiet utter to hold his land from the efflorescence by the one remaining form of tenure (free and parkland socage). Nevertheless, for all practical purposes the belief of tenure has small-minded modern signicance, and it is very likely that the proprietor of a house is completely unmindful(predicate) of his tenurial relationship with the tiptop.Under feudalisticism there were four principal forms of land tenure. Land tenure by the feudal lord, found on assorted forms of hierarchical feudal land self-command and on the myrmecophilous order of the workers themselves, the serfs or feudally confine peasants.Tenure of allotted land by serfs who were attached to land not belong to them and who therefore bore various obligations to the feudal lord for its use this form arrestd the economic basis of the class rule of the feudal lords (gentrys land possessors) and, within significant(a) limits, created conditions for the ontogeny of small-scale peasant farming.The ternion form was land tenure by peasants who enjoyed someoneal freedom but had to consecrate a quitrent (monetary or in kind) to the feudal lords or fulfil mortalal obligations.The four th was land tenure by free peasants, based on their free, alodial en impudencepower. Such a free peasant, however, was a rare phenomenon under feudalism. dogma of Tenures is a doctrine followed in old English law whereby it is presumed that all land is held of the hood, each directly or indirectly, on some type of tenure. legal resultant role of preceptThe crown is the possessor of all the land. No one has infrangible ownership. Rather, landowners hold the land of the Crown as renters (therefore tenure). They whitethorn accordingly alienate their land further, creating sub lives (subinfuedation). The relationship between a lord and his inhabit is one of mutual duties. In communicate for tenure, a inhabit provides the lord with services and a right to incidents.Elements of teachingAccording to the doctrine, all of the land ultimately belongs to the Crown, who gives it (via grants) to people. This nitty-gritty that no one has unattackable ownership (no allodial land). The people are said to hold the land of the Crown. They are tenants of the crown, therefore, they are apt(p) tenure.The doctrine creates the system of lord and tenant the lord alienating land to a tenant (who can then alienate the land to someone else, creating a new lord and tenant relationship). at that place is a mutual exchange or duties and obligations between the lord and tenant work the tenant has to provide a innovation of services for the lord in lessen for his tenure. In return, the lord provides the land, a salute (manorial homages) and protection. Incidents the lord in addition had rights to incidents .Roots of preceptThe doctrine pipelineated in the Norman Conquest, when William the conqueror do the Crown the controlling owner of all land. His supporters were made tenants in head teacher pursuant to a grant. The old landlords who did not rebel were en prenomend to play along their land. To deal with this, William created the legal fiction of the Crown ha ving granted this land to the landlords. Land ownership had a pyramidal structure with interlocking ties between queens and tenants in chief. The King was at the tip, and sub-tenants were at the bottom. In the middle were tenants who made grants.These tenants who made grants became Lords, for they possessed and held their land. The sub-tenants truely had a right to occupation. at that place was fragmentation in a spatial dimension (i.e. thither were overlapping sets of rights over a grumpy area of land). This allowed much than 1 somebody to choose an interest in the same land.Development of DoctrineThe modern absolute definition of ownership only if did not fit the feudal system of land ownership as no one soulfulness had absolute surname. A freehold was not really ownership. Only the Crown had what came close to being considered absolute rights. The doctrine of tenure allows overlapping rights over one bandage of land because of the subinfuedation.The process publication ually became excessively cumbersome, and a statute was created to reduce the difficulties that arose including 1. It permitted every free man to alienate his interest in the whole or part of his land without his lords bear 2. It prevented further subinfeudation to occur (Substitution settle down remained). If A held land as a tenant-in-chief (a landlord) from the King, and gave land to B, B would become the tenant-in-chief for that parcel. Earlier, A remained tenant-in-chief, tour B was in an awkward quasi-tenured position. heartthither are two building blocks of English land law1) Doctrine of tenure2) Doctrine of landed dry landsThe doctrine of tenure is now ir germane(predicate), but shaped the doctrine of acress.THE CONCEPT OF LAND raiseThe bourne land tenure is derived from the Latin word tenure which centre to hold. Tenure defines the social relations between people in respect of the object of the tenure, in this case land. Tenure also defines the methods by which ind ividuals or groups acquire hold head or transmit home rights in land (Ogolla, Mugabe 1996).Property rights whitethorn include a variety of contrastive rights for example to build, to use, to transfer, to mine etc. the rights whitethorn be transferred or transmitted either together or independently at the discretion of the pallbearer with or without limitations depending on the tenure system. semi-formal rules of tenure therefore define the nature and content of retention rights in land or other resources and the conditions under which those rights are to be held and enjoyed.LAND upgrade SYSTEMS IN KENYAInterests in land b drivewayly direct along into two groups. Rights and that are held through conventional African systems, and rights that derive from the English system introduced and maintained through laws enacted by colonial and then the national parliament. The former is mostly know as everyday tenure bound through handed-down rules (customary law).The last me ntioned(prenominal) body of law is referred to as statutory tenure, secured and expressed through national law, in various Act of parliament e.g. presidency Land Act (cap 280), Registered Land Act(cap 300), modification of Titles Act (cap 281), religion Land Act (cap 288) of the Laws of Kenya.a) Customary Land TenureThis refers to oral land ownership radiation patterns by certain communities under customary law. Kenya being a diverse country in cost of its ethnic composition has multiple customary tenure systems, which vary mainly due to different agri cultural practices, climatic conditions and cultural practices. However most customary tenure systems exhibit a numerate of akin(predicate) characteristics as followsFirst, individuals or groups by legality of their membership in some social unit of production or governingal community allow guaranteed rights of access to land and other natural resources (Ogendo 1979). Individuals or families indeed claim topographic poin t rights by virtue of theiraffiliation to the group. Secondly, rights of control are rest in the policy-making indorsement of the unit or community. This control is derived from sovereignty over the area in which the relevant resources are located.Control is for the purpose of guaranteeing access to the resources and is redistributive both spartially and intergenerationally. Its administrative component en lavs the power to share land and other resources within the group, order their use and defend them against outsiders (Ogola, Mugabe 1996). Thirdly, rights analogous to private berth accrue to individuals out of their enthronisation of labour in harnessing, utilizing and maintaining the resource. Thus the present cultivator of some piece of land has the slap-upest rights to it.These rights transcend clean usufruct and overcompensate transmission and in some communities transfer (Elias 1956). Lastly, resources that do not require huge investment of labour or which by their nature had to be shared, for example, common green goddess are controlled and managed by the relevant political authority. Every individual member of the political community has guaranteed equal rights of access thereto. The regulative mechanisms obligate by the political units such as exclusion of outsiders, seasonal variations in land use and social thrust ensured sustainable resource utilization.This mode of ownership in Kenya is currently governed by the avow Land Act by which all land in the rural areas which is incomplete organization land nor individually owned is vested in the county council in trust for the residents accompaniment there.b) Statutory Tenuresi) Freehold TenureThis tenure confers the greatest interest in land called absolute right of ownership or possession of land for an indefinite period of time, or in perpetuity. Freehold land is governed by the Registered Land Act (RLA) Cap 300 of the Laws of Kenya. The Act provides that the fitting of a person as the proprietor of the land vests in that person the absolute ownership of that land together with all rights, privileges relating thereto. A freehold patronage mostly has no snipion as to the use and occupation but in practice there are conditional freeholds, which restrict the use for say outlandish or ranching purposes only. ii) Leasehold TenureLeasehold is an interest in land for a definite term of age and may be granted by a freebearer usually subject to the payment of a stipend or rent and is subject also to certain conditions which mustiness be observed. e.g. relating to developments and usage. Leases are also granted by the political relation for governing body activity land, the local authorities for trust land and by individuals or organisations owning freehold land.The maximum term of political science leases granted in Kenya is 999 years for agricultural land and 99 years for urban plots. There are few cases of 33 years leases granted by government in respect o f urban trust lands. The local authorities occupy granted leases for 50 and 30 years as appropriate (GOK 1996).c) Public TenureThis is where land owned by the government for her own purpose and which includes unutilised or unalienated government land reserved for emerging use by the administration itself or may be available to the general public for various uses. The land is administered under the Government lands Act Cap 280.These lands are vested in the president and who has, normally through the Commissioner of Lands, powers to allocate or make grants of any demesnes, interests or rights in or over unalienated government land.Categories of government land include timber reserves, other government reserves, alienated and unalienated government land, national parks, townships and other urban centres and fan out water bodies(GOK 1996). The Government Lands Act does not contain any notion of trust territory by government of the land to her people. thence the government at ti mes acts as a private owner and allocates parcels to those in its favour.d) Other InterestsThese include Reservations of other government or trust land to government ministries, departments or parastatals for their use. Minor interest such as easements, wayleaves or temporary occupation licences. Non formalised defacto tenure by which people, individually or in groups invade and occupy other people or government land special(prenominal)ly inmajor(ip) urban centres of Nairobi, Mombasa and Kisumu.OWNERSHIPLand has been depict as those parts of the earth that are fitted in law of being owned and are within court jurisdiction. Generally , ownership of land includes the airspace above it and the sub soil under it (a coelo usque ad centrum from the heaven to the centre of the earth).Land tenure is the name given, particularly in common law systems, to the legal regime in which land is owned by an individual, who is said to hold the land proprietorship is the exclusive right to use, possess, and remand of property, subject only to the rights of persons having a superior interest and to any restrictions on the owners rights imposed by agreement with or by act of the third parties or by operation of law.Ownership may beCorporeal- of material thing which may itself be a movable or an unyielding Incorporeal- of something tangible e.g. copyrightOwnership involves enjoyment of a number of rights of the property. The owner can alienate some of those rights fleck muted retaining others e.g. an owner of land may grant a right of way or a patent owner may grant a license to retrace the patented goods. Ownership may be held by different persons for different interests e.g. when a freehold owner grants a lease or when land is held on a trust of land for persons with interest in eon to one some other.More than person can own property at the same time they mayhap either correlative owners with a single backup to the property or owners in common each having a distinc t title in the property that he can impel of independently. A person may be either the legal and beneficial owner, or the legal ownership of property maybe separate from the beneficial ownership, which is the right to enjoy the property as when a legal guardian owns the legal estate in land for the benefit of some other.A legally validated transaction may confer special(prenominal) rights to use, posses, or deal with property without conferring ownership of it e.g. a contract may found a person as the owners agent for the sale of qualify land. BRIEF HISTORY OF LAND TENUREHistorically in the system of feudalism, the lords who received land directlyfrom the Crown were called tenants-in-chief. They doled out portions of their land to lesser tenants in exchange for services, who in turn divided it among even lesser tenants. This processthat of granting subordinate tenanciesis cognise as subinfeudation.In this way, all individuals except the monarch were said to hold the land of s omeone else. Historically, it was usual for there to be reciprocal duties between lord and tenant. There were different kinds of tenure to fit various kinds of duties that a tenant might owe to a lord. For instance, a military tenure might be by knight-service, requiring the tenant to supply the lord with a number of armed horsemen. The concept of tenure has since evolved into other forms, such as leases and estates.MODES OF OWNERSHIP AND TENUREHere are a great variety of modes of land ownership and tenure Traditional land tenure. For example, most of the innate nations or tribes of North America had no formal notion of land ownership. When Europeans setoff came to North America, they sometimes patently snub traditional land tenure and simply seized land more often, they accommodated traditional land tenure by recognizing it as central title.This theory formed the basis for (often short and often abused) treaties with indigenous peoples. Ownership of land by swearing to make prolific use of it. In several develop countries as Egypt, Senegal, this method is still curtly in use. In Senegal, it is mentioned as mise en valeur des zones du terroirand in Egypt, it is called Wadaa al-yad. Allodial title, a system in which real property is owned absolutely free and clear of any superior landlord or sovereign.True Allodial title is rare, with most property ownership in the common law world (Australia, Canada, Ireland, unused Zealand, Kingdom, United) being in gift unreserved. Allodial title is inalienable, in that it may be conveyed, devised, gifted, or mortgaged by the owner, but it may not be distressed and guarded for collection of taxes or private debts, or condemned by the government.Feudal land tenure, a system of mutual obligations under which a royal or noble important person granted a fiefdom ,some degree of interest in the use or revenues of a given parcel of land, in exchange for a claim on services such as military service or simply maintenan ce of the land in which the lord quelld to have an interest.This pattern obtained from the level of high splendour as vassals of a monarch down to lesser nobility whose only vassals were their serfs. remuneration unsubdivided under common law, this is the most complete ownership interest one can have in real property, other than the rareAllodial title. The holder can typically freely sell or otherwise transfer that interest or use it to secure a mortgage loan. This characterisation of complete ownership is, of course, complicated by the obligation in most places to pay a property tax and by the fact that if the land is mortgaged, there leave alone be a claim on it in the form of a lien. In modern societies, this is the most common form of land ownership.Land can also be owned by more than one party and there are various concurrent estate rules. indispensable title in Australia, native title is a common law concept that recognizes that some indigenous people have certain la nd rights that derive from their traditional laws and customs. Native title can co-exist with non-indigenous patented rights and in some cases different indigenous groups can exercise their native title over the same land. living estate under common law, this is an interest in real property that ends at death. The holder has the use of the land for life, but typically no ability to transfer that interest or to use it to secure a mortgage loan. requital tail under common law, this is hereditary, non-transferable ownership of real property. A similar concept, the legitime, exists in civilian and romish law the legitime limits the extent to which one may disinherit an heir. Leasehold or rental Under both common law and civil law, land may be rent or rented by its owner to other party a wide range of arrangements are possible, ranging from very short name to the 99-year leases common in the United Kingdom, and allowing various degrees of freedom in the use of the property.Righ ts to use a common, which may include such rights as the use of a road or the right to graze ones animals on commonly owned land.Sharecropping, under which one has use of agricultural land owned by another(prenominal) person in exchange for a share of the resulting crop or livestock. Easements, which allow one to make certain specific uses of land that is owned by someone else. The most classic easement is right-of-way, but it could also include (e.g. the right to go past an electrical power line crossways someone elses land.TITLEDefinition of titlea) The coincidence of all the elements that wee-wee the fullest legal right to control and expel of property or a claim. b) The mix evidence that gives rise to a legal right of possession or control. c) The instrument, such as a deed, that constitutes this evidence. d) nearthing that provides a basis for or justifies a claime) Legal right to possession of legal propertyTitle is the set of facts upon which claim to a legal right or i nterest is founded, title can exist even when there is no pre-existing legal interest or right vested in a person who claims he has title. professor Ray Goode distinguishes title and interest in this manner A persons interest in an asset denotes a quantum of rights over which he/ she enjoys against others, his title measures the strength of the interest which he enjoys in relation to others.Title to a proprietary interest can be either relative or absolute. An absolute title is one that is indefeasible in the sense that there is no-one else who can point to a check title in respect of the same object. The essence is fundamentally that there isnt anyone with a break title. Instances of proving absolute titlei. unanalyzablest is through human beings of something out of nothing for example an author of a book has absolute title over the said book because he wrote it and hence created something from nothing. ii. Manufacturing of something in the absence of other evidence of manufac ture of the said thing being manufactured but any one other then he claiming he manufactured it for example coca-cola have absolute products over coca-cola for no one other then they have the mend formula of creating the fizzy drink. iii. Registration of such said title, gives you absolute title. This heart that if one is to buy a piece of land and it is properly registered in the proper performance then he has absolute title to the landA relative title is one that can be thwarted by a person screening that he orshe has a better title to the thing It follows from the definitions of title that two or more persons may have independent legal interests in the same thing. For example, both a true owner of an asset and a person with mere possession with the intention to control can have absolute legal interests in the asset.This legal interest is enforceable against third parties by both the true owner and a possessor. Whilst they both have identical legal interests, they have titles that are different in nature. The true owner has a much stronger title than a mere possessor of the chattel.A true owner has an indefeasible title whereas the possessor has a mere relative title. The strength of the true owners title is great because it cannot be defeated by anyone so long as the true owner has an intention to control the asset. The title of the possessor is liable to be defeated by the true owner, and thus, whilst he has a legal interest, his title is a relative one. There are different ways that one can take up a title, this are the ways Sole OwnerTaking title as fix owner means that only one person holds title. He or she is the resole owner of the property and no one else needs to be considered.Tenants In jetTenants in Common means that the only thing the owners have in common is tenancy in the property. The property may have 2 or more owners and they may be related or unrelated. What is essential to note is that the helping of each owner may be sold or ge t outed without the permission of the other owners. For instance, if both John and Bob own a piece of property and John dies, the percentage of ownership of John goes to Johns heirs, not to Bob.Tenants in EntiretyTenants in Entirety is reserved for married couples only. This means that you own the property as one. If something happens to either one of you, the other person mechanically keeps title to the property. correlative Tenancy enunciate Tenancy means that each of you owns the property jointly. When you take title as Joint Tenants, youve agreed to the right of survivorship to the title of the property. This means that if one of you passes away, the other gets the property. It also means that one owner cannot sell or will the property without the other owners consent. For instance, if owner John wants to sell the property, then co-owner Bob will have to agree to that. combiningA favourite trend is taking title as a trust. This means that the trust, not you, owns the property. This may protect your asset in the event of litigation Registration of title is made out by the fact that it offers tawdry and expeditious insecure methods in property dealings which are in shrill contrast to the position in the unregistered system which was thought to be costly, disorganised insecure and complicated. Its principle objective is to deputize the traditional and registered title method with a single established register which is state maintained and therefore conclusive and authoritative as to the details or particulars set out therein.It is precisely because of that that it is credited in eliminating wasteful burden placed on potential purchasers under the unregistered system which requires them to separately investigate titles to assure themselves that it is a good title that can pass and which is free from any hidden claims which may be adverse to their interests. Since it is state maintained and operated, the title registration system enjoys all the advantages that are unavailable under the registration of the deed system which is not very different from the unregistered system.Unlike the registration of the deed system the registration of title system has the capability of investing secure titles in all persons in whose favour such registration may be tacked. It is further regarded as final authority on the correct position regarding any registered land. It is also cheap and expeditious in call of facilitating various transactions regarding registered land. evidence indemnity is available for any losses that may be incurred and so it makes ecstasy very unreservedton.DOCTRINE OF ESTATESDefinitionWhat is an realm?Blacks Law Dictionary defines an Estate as The amount, degree, nature, and quality of a persons interest in land or other property esp., a real-estate interest that may become possessory, the ownership being measured in terms of period.These are interests projected on the plane of time so as to be able to be capable of qua ntification in terms of duration. An estate must be distinguished from Tenure, which is concerned with the mensuration of estate. Tenure as it is basically refers to a set of conditions upon which an estate interest in land may be held. Hence, the relevant question is how much and not for how long, the latter being applicable to the estate.What is the Doctrine of EstatesThis is an old English rule that a person cannot own land, but can save own an estate in it, authorizing the person to hold it for some period of time. The Doctrine Of Estates And The Rise Of The Fee innocentThere are two elements to the doctrine of estates, alike(p) to two ways in which estates may be classified (1) Duration An estate in the land is a time in the land or the land for a time so land can be split into slices of time. typificationSimpson imagines a streak the whole cake is the tip simple(a) (time in land without end) but slices of cake can be taken out and passed to another e.g. an estate for life, then get the cake back. This is a present right to present enjoyment. fiber LawWalsingham Case1(2) Time of enjoyment non only may the right to seisin be cut up into slices of time, but there may also be a present (alienable) right to a future enjoyment, when the person with the life estate has died. This is a present right to future enjoyment (but that right can still be transferred now toanother) to get the cake back in the future.HistoryIt was formally cognize as the doctrine of tenure that surd on the quality of interests in land. It has its origin in the medieval theory in English law. After the Norman violation of 1066, the king acquired an ultimate radical title to all the land in England (the government has similar title in Kenya). It followed that all subjects occupied their land on terms of grant acquired ultimately from the charity of the crown. The King determined who got the best prince for land depending on your benefit to him.(Benefits included service as K nights in his army, produce from the land, service to the Crown as well as other shows of fealty.) In such an arrangement it wasnt clear what a tenant could say he owned but react was eventually found in the doctrine of estates. This doctrine gave expression to the idea that each landholder owned not land but a slice of time. for each one estate comprised of time related segments- a temporal slice- of the rights and powers exercisable over the land. Types of EstatesEstates are divided into two(a) Free-hold Estates(b) Less than free-hold Estates (Lease-hold)Free-Hold EstatesDefinitionBlack defines Free-Hold Estates as An estate in land held in fee simple, in fee tail, or for term of life any real-property interest that is or may become possessory. Bouvier defines free-hold estates as An estate of freehold is an estate in lands or other real property, held by a free tenure, for the life of the tenant or that of some other person or for some uncertain period.It is called liberum tene mentum, impolite tenement or freehold it was formerly describe to be such an estate as could only be created by manner of speaking of seisin, a ceremony similar to the investiture of the feudal law. But since the introduction of certain modern conveyances, by which an estate of freehold may be created without livery of seisin, this description is not sufficient.(The term livery of seisin means simplytransfer of possession livery means delivery and is from the Old French livrer, and seisin means possession and is from the Old French saisir or seisir. The concept fuck livery of seisin, therefore, was the exemplary transfer of the possession of land. ) Summarily, this is an interest in land that a particular person holds and it is usually for an unlimited period of time and is passed on to his/her heirs according to the type of free-hold estate the owner had contracted into. TYPES OF FREE-HOLD ESTATESThere are three types of Free-Hold Estates(a) Fee- primary Estate(b) Fee-Tail Esta tes(c) life story EstatesA. Fee-Simple EstateDefinitionFee refers to estates of inheritance while the word simple connotes possession by the heirs generally. Originally this was an estate which endured for as long as the original tenant or any of his heirs survived. Heirs comprised any kin relations, although originally ancestors were excluded not until the Inheritance Act 1833 could a person be the heir of one of his posterity.Thus at first a fee simple would annihilate if the original tenant died without leaving any descendants or collateral descent relations (e.g. brothers or cousins), even if before his death the land had been conveyed to another tenant who was still alive. However, by 1306 it was settled that where a tenant in fee simple alienated the land, the fee simple would continue as long as there were heirs of the new tenant and so on, no matter of any failure of the original tenants heirs, Thenceforward a fee simple was Virtually eternal.2 The estate in fee simp le is the largest estate known to the law, ownership of such an estate being the nearest approach to ownership of the land itself which is consonant with the feudal principle of tenure, It is the most comprehensive estate in land which the law recognises it is the most extensive in quantum, and the most absolute in respect to the rights which it confers, of all estates known to the law,Traditionally, the fee simple has two distinguishing features first, the owner (tenant in fee simple) has the power to ostracize of the fee simple,either inter vivos or by Will second, on intestacy the fee simple descends, in the absence of patrilinear heirs, to collateral heirs to a brother, for example, if there is no issue,3 All fee simple estates in Kenya whether by initial grant or by conversion of long leases can be traces ultimately to the Crown Lands Ordinances of 1902, 1915 and the Government Lands Act4.Accordingly, their radical titles remain vested in the State. Accordingly, to H.W.O Okot h Ogendo5, the only practical implication of such conclusion is that where the fee simple cannot pass due to failure of issue, the estate will escheat to the State as the ultimate heir of all property rights in land. This is the effect of Section 8(A) (I) of the G.L.A6, which expressly preserves the doctrine.Types of Fee Simple EstatesThere are three types of fee simple estatesa) Fee Simple haughtyDefinitionInterests of rights are limited as against others but not as against the State. This means that ownership is exclusively enjoyed by the owner and is indefeasible by anyone other than the State b) Determinable Fee SimpleDefinitionThe Estates terminates automatically upon the occurrence of a contract event. Some of the terminologies used are so long as, until during while and others that denote duration. c) Conditional Fee SimpleThis has a stipulation attached to it by which the Estate may be cut short upon the occurrence of the said event. Some of the terminologies used are but if on condition that provided that. In Free-hold Estates is known as the grantor while the person being given the estate is known as the grantee. With Fee Simple Estates, there are certain terms used by the partakers of a Fee Simple discernment such as The person in possession, in remainder, in reversionIn possession This denotes the person enjoying the property at that point in time In Remainder This denotes the person postponement for his/her turn toenjoy the estate(s) In Reversion This denotes the grantor who is waiting for the land to revert to him/her.B. FEE crumbFee here refers to a persons hers/inheritors while Tail connotes that the land passes on to specific heirs based on gender, trait or other argument as may be specified by the grantor. It is essentially an estate that is transmitted only by specified descendants of the original grantee, and that endures until its current holder dies without issue. C. Life Estatespur autre vie (For the life of another)Here the estat e is determined by a particular life,it could be that of the grantee or that of another individual for example the spouse. life estate (1888) A life estate for which the measuring lite the life whose duration determines the duration of the estate is someones other than the possessors. This is an estate, which subsists for the life of another and not of whom the property rights are/were vested. Thus if property is vested in A for the life of B, the estate will last for as long as B lives. But if B dies before A, the property reverts to B, the settler.7The Kenyan positionThe foregoing classification of rights and interests in property has been imported/ into or inherited by Kenya, albeit with a few qualifications i.e. the fee tail estate is not relevant in Kenya. Accordingly we only have the fee simple estate. The fee tail estate disappeared in 1942 when the colonial government enacted the Trust of Land Act. This enactment was with one object to abolish settlement.A settlement was a devise used in England to tie up Land within the family and accordingly, to control property. After the life estate, there is a remainder, which reverts back to the presenter i.e. the fee simple. For continuity, the donor can transfer the property to another and another and eventually a tail, which however, will still have a reminder, which will revert to the donor. This situation was abolished by the Trust of Land Act8. This act defined a settlement as an attempt to create a settlement without exploiting the full estate i.e.The Fee Simple. Under the act, if a person attempts to do so, whatsoever is done will be convertedinto a trust for sale. A settlement will be converted by Cap 290 into a trust. An equitable interest is an interest that lies behind a trust since it creates a settlement. A trustee can always dispose of the settlement subject to the rules of the trust. The Kenyan position is further made advent of the Absolute estate.This is purely a creature of the R.L.A9. Acc ordingly, the absolute estate under the R.L.A supersedes the fee simple estate existent under the ITPA. However its worth noting that under the ITPA, the fee simple estate remains to be the largest estate. We still have in Kenya, the customary estate i.e. an estate in land defined by customary law