course outline for land law

CATHOLIC UNIVERSITY OF EASTERN AFRICA

CUEA Mission Statement:
To promote excellence in research, teaching and community service by preparing morally upright leaders based on the intellectual tradition of the Catholic Church.

FACULTY OF LAW
DEPARTMENT OF PRIVATE LAW
BACHELOR OF LAWS (LL.B) DEGREE PROGRAMME

Faculty Vision:
To train the students in the Faculty of Law to become conscientious and ethical lawyers who have an excellent grounding in legal principles and who will provide leadership in Kenya, East Africa and beyond.

COURSE OUTLINE
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UNIT CODE: CLS 300

UNIT TITLE: LAND LAW 1

CREDIT HOURS: 3

TRIMESTER: I

ACADEMIC YEAR: 2012/2013

CLASS HOURS: TUESDAYS: 8AM – 11AM

ROOM: KH 05

LECTURER: K. N. MBURU (KANYARATI HALL, UPPER CAMPUS, 4TH FLOOR)
Email: [e-mail]
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1. PURPOSE OF THE COURSE:
This course reviews the concept of land as property, the common law and statutory definitions of land, the various property rights and interests, historical foundations of land law in Kenya and the registration systems in Kenya.

2. LEARNING OUTCOMES:
Upon completing this course students will be able to:
The concept of land as property
The philosophic foundations of property rights in land
The various interests one may have in land.
Historical development of land law in Kenya
The various registration systems in Kenya

3. TEACHING METHODOLOGY:
The course content will be dispensed through the appropriate use of four primary tools, to wit, lectures, class/group discussions, tutorial assignments and handouts. Notes will not be given/dictated.
Class Representative:
The class shall be represented, for purpose of administration, by a class representative selected by the class. The class representative will be the chief administrative liaison between the class and the lecturer. (S)he must attend every class, and be diligent in matters related to administrative communication between the class and the course instructor.
Term Paper Assignments:
The course outline comprises term papers to be attended to. Each student has an obligation to personally tackle each and every one of the term paper assignments, so as have their own research material and notes on the subject, and so that each student is able to fully participate in class discussions.
Term Paper Assignment Groups:
The students, through the class representative, will divide themselves into 8 groups of approximately equal number of members, with each group tackling one term paper as a group.
Term Paper Assignments – Presentations & Assessment Criteria:
The term papers must be research papers. Each term paper assignment group will present before the class their term paper. A soft copy (word document) must be emailed to [e-mail] at least 48hrs before the scheduled time for the class during which the presentation is scheduled to be made. The physical copy of the term paper must be handed over to the lecturer prior to commencement of the presentation. The hard copy of the term paper will be typed in Times New Roman or similar font, font size 12, and double-line spaced. Sources of material contained in the paper must be attributed/indicated either in the main body or as footnotes. The cover page of the term paper must contain the group number, date, trimester, course name & code, assignment/topic being tackled, and names and admission numbers of all the group members. The term paper must be circulated to the entire class no later than one week after the presentation. Each member of the group is responsible for ensuring that the foregoing instructions are strictly adhered to. FAILURE TO ABIDE BY THE FOREGOING, OR TO PRESENT THE TERM PAPER ON THE ASSIGNED DAY OR AT ALL, OR FAILURE OF ANY STUDENT TO PARTICIPATE IN A GROUP, WILL LEAD TO A ZERO C.A.T. MARK FOR THE ENTIRE GROUP OR, IN THE CASE OF NON-PARTICIPATION, FOR THE NON-PARTICIPATING STUDENT.

4. TIMETABLE AND ATTENDANCE:
The classes will be on the dates and at the time and places indicated in the Faculty timetable. That class attendance is important cannot be overstated, and students intending to successfully appreciate and complete the course are urged to pay heed. Attendance registration is important and the University’s rules in regard to class attendance and registration shall apply. In addition to this, students shall be required to complete reading, research and written assignments on time.

5. ASSESSMENT:
There shall be Continuous Assessment Tasks/Tests (CATS) and assignments during the course of the semester on the dates and at the time and places indicated either by the lecturer or by the Faculty, and one final examination at the end of the semester on the dates and at the times and places indicated by the University.
Students should note the University’s rules and regulations regarding tests, examinations, re-sits and "make-ups".
Evaluation of the students’ final grade will be made on the following basis:
(a) Continuous Assessment Tasks/Tests (CATs) and Assignments ...…......…….. 30%
(b) Final Written Closed Book Examination …………...………..….……………... 70%

TOTAL …...……………….………………………………………………………...……100%

6. POLICY ISSUES:
i) All students should attend all classes and actively participate ii) If a student fails to attend more than six (6) hours in a trimester he/she will not be allowed to sit for the final examination. iii) If a student fails to sit his or her continous assessment tests he/she will not be allowed to sit for the final examinations iv) Any student who fails to sit for his or her continuous assessment tests for good reasons will inform the course instructor and will arrange to sit for a make up CAT before the end of trimester examination
v) Students with special needs are required to see the unit instructor and discuss their needs. vi) Students repeating or upgrading the unit must inform the instructor. vii) All mobiles phones must be switched off during class hours.

7. HEALTH AND SAFETY ISSUES
Students are responsible for their personal belongings while in campus. If students notice a situation endangering their safety or the safety of others are advised to inform the lecturer or any officer in the campus.

8. COURSE CONTENT GUIDE

Class Schedule
Contents
Week 1
The genesis and evolution of the law of property in land
The concept of property
The idea of a right
Legal and equitable rights
The concept of ownership

Week 2
The legal concept of land and the definition of land land as property common law definition of land exceptions to the cujus maxim statutory limitations to the cujus maxim in Kenya

Week 3
Qualification of property rights
The doctrine of police powers
The doctrine of eminent domain
The doctrine of limitation

Week 4
Classification of interests in land doctrine of tenure and doctrine of estates freehold estates: freehold of inheritance ( fee-simple and fee-tail) freehold not of inheritance( life estate and estate par autre vie)

Week 5
Leasehold interests: fixed term periodic tenancy tenancy at will tenancy at sufferance co-ownership joint tenancy

Week 6
Break
Week 7
Historical development of land law in Kenya precolonial epoch colonial epoch post independence epoch

Week 8
Land registration in Kenya advantages of a registered system registration systems in Kenya (registration of deeds & registration of title) categories of land principles of registration

Week 9 legislative regimes of land registration-(RDA, LTA, GLA, RTA, RLA)
The rights and obligations created by registration- (RDA, GLA, LTA, ITPA, and RLA).
The registration process
Duties of the registrar in registration
Registration and priority
Stay of registration

Week 10
Make-up class (if any), Re-cap

9. STATUTORY REFERENCES:
1. Civil Procedure Act (Cap 21)
2. Companies Act, (Cap 486)
3. Crown Lands Ordinance (1902)
4. Crown Lands Ordinance (1915)
5. Distress for Rent Act (Cap 293)
6. East African Order In Council (1897)
7. Equitable Mortgages Act, (Cap 291)
8. Evidence Act (Cap 80)
9. Government Lands Act, (Cap 280)
10. The Indian Transfer of Property Act of 1882
11. Judicature Act, (Cap 8)
12. Kenya (Highlands) Order In Council (1939)
13. Kenya (Native Areas) Order In Council (1939)
14. Land Acquisition Act (Cap 295)
15. Land Adjudication Act, (Cap 284)
16. Land Consolidation Act, (Cap 283)
17. Land Control Act, (Cap 302)
18. Land (Group Representatives) Act, Cap 287
19. Land Registration (Special Areas) Act 1959
20. Land Titles Act (1908)
21. Land Titles Act (Cap 282)
22. Landlord and Tenant, (Shops, Hotels and Catering Establishments) Act (Cap 301)
23. Law of Contract Act, (Cap 23)
24. Law of Succession Act (Cap 160)
25. Magistrates Jurisdiction (Amendment Act) No. 14 of 1981
26. Native Lands Registration Ordinance 1959
27. Native Lands Trust Ordinance 1930
28. Registered Land Act, (Cap 300)
29. Registration of Documents Act, (Cap 285)
30. Registration of Titles Act, (Cap 281)
31. Rent Restriction Act (Cap 296)
32. Sectional Properties Act, Cap
33. Stamp Duty Act (Cap 480)
34. The Interpretation and General Provisions Act (Cap 2)
35. The Land Act, 2012 (No.6 of 2012)
36. The Land Registration Act, 2012 (No.3 of 2012)
37. The National Land Commission Act, 2012 (No.5 of 2012)
38. Transfer of Property Act of India, 1882
39. Trust Land Act (Cap 288)
40. Trusts of Land Act, (Cap 290)

STATUTES OF THE UNITED KINGDOM
1. Conveyancing Act 1881
2. Law of Property Act (1925)
3. Real Property Act (1845)

OTHER STATUTES
1. Land Registration Ordinance of Tanganyika, 1954
2. Land Titles Ordinance (1956) of Singapore
3. Registration of Title Enactment of the Federal Republic of Malay

RELEVANT PRECEDENTS
1. Aberdare Investments Ltd Vs Housing Finance Company of Kenya Ltd & Another Civ. App. No. 227 of 1998 at Nairobi
2. A.G. vs. Odell(1906) 2 ch 47
3. Aldin Vs Latiner, Clark, Muirhead & Co (1894) 2 ch 437
4. Ambale Vs Masolia HCCC No. 54 of 1976
5. Bains Vs Chogley (1949) EACA 27
6. Bates Vs Donaldson 91896) 2QB 241
7. Bogetutu Farmers Co. Ltd Vs Mohammed Hassan Yonis & Anor. Civ. Case No. 154 of 1992 at Nakuru
8. Bradley Vs Carrot (1903) AC 253
9. Captain Patrick Kanyagia & Another Vs Damaris Wangechi & 2 others Civ. App. No. 150 of 1993 at Nairobi
10. Cheboo Vs Gimnyigei Civ. App. No. 40 of 1978 at Nairobi
11. Chemilil Estates Ltd Vs Makongi (1967) EA 166
12. Clarke Vs Sondhi (1963) EA 107
13. Coast Brick & Tile Works Ltd Vs Premchand Raichand Ltd (1964) EA 187
14. Desai vs. Shah (1974) EA 197
15. Dodhia Vs National & Grindlays bank Ltd (1970) EA 195
16. Fairclough vs. Swan Bakery Co. Ltd(1912) AC 565
17. Graveland vs. Porter 10 ch.8
18. George Gikuha Mbuthia & 3 others vs. Small Enterprises Finance co. Ltd & Anor Civil – App. No.54 of 1998 at Naitobi
19. Githuci Farmers Co. Ltd vs. Gichomba & Anor (1973) EA 8
20. Hecht Vs Morgan (1957) EA 141
21. Industrial & Commercial Development Corporation Vs Kariuki & Gatheca Resources Ltd (1977) KLR 52
22. Isaac Kamau Ndirangu Vs Commercial Bank of Africa Civ. App. No. 125 of 1993 at Nairobi
23. Jacobs Vs Batavia & General Plantations Trust Ltd (1924) 2 ch 329 (CA
24. Jacob Gichuki Minjire Vs Agricultural Finance Corporation
25. Civ. App. No. 61 of 1982 at Nairobi
26. James Ombere Okoth Vs East African Building Society & 2 Others Civ. App. No. 202 of 1996 at Nairobi
27. Jitendra Mathurdas Kanabar & 2 others Vs Fish and Meat Ltd. Civ. App No. 267 of 1996 at Mombasa
28. Kalabri vs. A.G. (1938) 18 KLR
29. Karsan Lalji Patel Vs Peter Kimani Kairu Civ. App. No. 135
30. of 1999 at Nairobi
31. Kehar Singh Vs Bhatt (1962) EA 759
32. Kenya Reinsurance Corporation Vs V.E. Muguku Muriu t/a Muguku Muriu & Company Advocates. Civ. App. No. 48 of 1994 at Nairobi
33. King Woolen Mills Ltd vs. M/s. Kaplan and Stratton Advocates, Civil Appeal No.55 of 1993 (unreported
34. Kenya Commercial Bank Ltd Vs James Osebe Civ. App. No. 62 of 1982
35. Kreglinger Vs New Patagonia Meat & Cold Storage Co. Ltd (1914) AC 25
36. Lace Vs Chantler (1944) K.B 368
37. Lalji Megji Patel Vs Karsan Premji (1976) KLR 112
38. Leonard Njonjo Kariuki vs. Njoroge Kariuki Civil Appeal No.26 of 1979
39. Mbuthia vs. Jumba Credit Finance Corporation and Anor Civil Appeal No.111 of 1986 Nairobi
40. Meralli Vs Parker (1956) 29 KLR 26
41. Morgan Vs Stubenitski (1977) KLR 188
42. Nyaga Kabute Vs Housing Finance Company of Kenya Ltd. Civ. App. No. 158 of 1996 at Nairobi
43. Nyatwanga Israel Vs Alloys Otachi Civ. App. No. 73 of 1996 at Kisumu
44. Nelson Githinji & Another Vs Munene Irangi; Civ. App. No. 133 of 1987 at Nyeri
45. Newhart Developments Vs Co-operative Commercial Bank (1978) 2 ALLER 896
46. Noakes Vs Rice (1902) AC 24
47. Obiero Vs Opiyo & Others (1972) EA 227
48. Peter Nganga Muiruri Vs Credit Bank & Charles Ayako Nyachae Civ. App. No. 263 of 1998 at Nairobi
49. Rogan Kamper Vs Lord Grosvenor (1977) KLR 123
50. Runda Coffee Estates Vs Ujjagar Singh (1966) EA 564
51. Russel Vs Principle Registrar of Titles (1972) EA 249
52. Russel Company Ltd Vs Commercial Bank of Africa Ltd & Another. Civl. App. No. 80 of 1991 at Nairobi
53. Saleh Vs Eljofri (1950) 24 (1) KLR 17
54. Salim Vs Okongo (1976) KLR 42
55. Santley V Wilde (1899) 2 ch 474
56. Selton vs. Slade (1807)7 Ves265
57. Souza Figuerido Vs Panapangopaulos (1959) EA 756
58. Souza Figuerido & Co. Ltd Vs Moorings Hotel (1960) EA 926
59. Stanley Mbugua Gachie Vs Lakeli Waithera & 2 others Civ. App. No. 153 of 1996 at Nairobi
60. Trust Bank Ltd Vs Eros Chemists Ltd & Whitestone Auctioneers Civ. App. No. 133 of 1999 at Nairobi
61. Trust Bank Ltd Vs Okoth, Civ. App. No. 177 of 1998 at Nairobi
62. United Mining and Finance Corporation Ltd vs. Beechan Civil Appeal No. 263 of 1998 at Nairobi
63. Vidot Vs Sharma (1966) EA 72
64. Waljee Vs Rose (1976) KLR 25
65. Walsh Vs Lonsdale (1882) 21 ch.D.9
66. Walker Kontos Advocates vs. S. Mwingi M’inoti & Company
67. Advocates Civil Appeal No.20 of 1997 at Nairobi
68. William Gatuhi Murathe Vs Gakeiru Gathimbi Civ. App. No. 49 of 1996 at Nairobi

ADDITIONAL RESOURCES
1. Okoth – Ogendo, H.W.O., Teaching Manual on Property Law, Vol. Nairobi, U.O.N
(1975)
2. Okoth-Ogendo, H.W.O., “Property Theory and Land Use Analysis” Discussion paper No.209(1974) Journal of EARD Vol. 5 No.1
3. Williams, J., Real Property, London, Sweet and Maxwell, 1(1920)
4. Okoth – Ogendo, H.W.O., Tenants of the Crown; Evolution of Agrarian Law and Institutions in Kenya, Nairobi, Acts(1991)
5. Wanjala, S.C. (ed) Essays on Land Law, The Reform Debate in Kenya – Nairobi
6. Paper on Reform of land policy in Kenya, 2006. To be downloaded at
7. Ojienda, T.O., (2008), Conveyancing Principles and Practice, (2008), Law Africa Publishing, Nairobi.
8. Land Law Reform in Kenya, vols. 1,2 &3 of the Law Society of Kenya.
9. Onalo, P.L., Land law and Conveyancing in Kenya, (1986), Law Africa Publishing, Nairobi.
10. Kevin Gray & Susan F.Gray, Land Law, (2007), Oxford University Press, New York.
11. Megarry’s Manual of the Law of Real Property.

NOTE: The foregoing list is merely a guide of some relevant reading and research material and should not be considered as exhaustive.

References: 3. Crown Lands Ordinance (1902) 4 13. Kenya (Native Areas) Order In Council (1939) 14 35. The Land Act, 2012 (No.6 of 2012) 36 37. The National Land Commission Act, 2012 (No.5 of 2012) 38 2. Law of Property Act (1925) 3 2. Land Titles Ordinance (1956) of Singapore 3 2. A.G. vs. Odell(1906) 2 ch 47 3 6. Bates Vs Donaldson 91896) 2QB 241 7 8. Bradley Vs Carrot (1903) AC 253 9 12. Clarke Vs Sondhi (1963) EA 107 13 14. Desai vs. Shah (1974) EA 197 15 16. Fairclough vs. Swan Bakery Co. Ltd(1912) AC 565 17 20. Hecht Vs Morgan (1957) EA 141 21 28. Kalabri vs. A.G. (1938) 18 KLR 29 36. Lace Vs Chantler (1944) K.B 368 37 40. Meralli Vs Parker (1956) 29 KLR 26 41 46. Noakes Vs Rice (1902) AC 24 47