UNIVERSITY OF EMBU

SCHOOL OF LAW
DEPARTMENT OF COMMERCIAL LAW
COURSE CODE: LPR 201
COURSE TITLE: PROPERTY LAW 1
GROUP 7
PRESENTED TO: DR. JAMES NJUGUNA

MEMBERS
1. L250/25851/2023 – KIPRONO LAVENDA CHEPTOO
2. L250/25862/2023 – KIVUVA CHRISTINE NZULA
3. L250/25854/2023 – JOEL OGUTU ODUORI
4. L250/25836/2023 – GLADYS CHINYAVU NZUI
5. L250/102700/2023 – SEAN WAMBUGU
6. L250/102748/2023 – NYAGA MILCATE KENDI
7. L250/25843/2023 – NIXON RUWA NZAI
8. L250/25796/2023 – DAVID LEWIS MADAWO
9. L250/25895/2023 – DANISTAN BOKE
10.L250/25878/2023 – DIANA GATI
11. L250/25824/2023- PURITY MUMO
CONTENTS
1. OWNERSHIP V POSSESSION OF PROPERTY
2. CONTENT OF OWNERSHIP
3. FRAGMENTATION OF OWNERSHIP
4. JOINT TENDANCY V TENDANCY IN COMMON
5. PRESENT AND FUTURE INTERESTS
6. LEGAL AND EQUITABLE INTEREST
7. LIMITATION OF OWNERSHIP
1.OWNERSHIP V POSSESSION OF PROPERTY
Possession
Jurists have defined possession based on their personal beliefs. It is the most
fundamental interaction between man and things, according to Salmond. However,
Henry Maine defined it as interaction with an object that includes the exclusion
of other people from enjoying it. A man is considered to own a thing over which
he has seeming control or over which he has apparent authority to exclude others,
according to Federick Pollock.
In B. Gangadhar v. Ramalingam (1995) 5 SCC 2381, the Indian Supreme Court
elaborated on the notion of possession. The objective realization of ownership is
possession. It is both the de facto statement of a claim to a specific piece of
property and the de facto counterpart of ownership. Possession of a right, in
contrast to the de jure connection of ownership, is the de facto relationship of
ongoing exercise and enjoyment. The actual exercise of a claim to a specific piece
of property is known as possession. It is the most typical form in which claims are
made. It is the outward form in which claims are most commonly manifested.
Elements of possession
Legal possession, according to Holland, comprises two fundamental elements:
1. Corpus Animus
2. Corpus Possession
Corpus denotes two things:
a) the possessor’s physical relationship to the res or object; and
b) the possessor’s relationship to the rest of the world.
The first point highlights that a person must have some physical touch with
whatever he owns to have a reasonable expectation that others will not interfere
with it, i.e. that others will not interfere with the possessor’s right to use or enjoy
that object. This guarantee of non-interference can be obtained in a variety of
ways:
1
B. Gangadhar v. Ramalingam (1995) 5 SCC 238,
1.The physical power of the possessor: The possessor’s physical power over the
object in his possession works as an assurance that the thing will be used. It’s also
a guarantee that others won’t interfere with his rights. To prevent others from
interfering with his lawful ownership, the person in possession typically utilizes
walls, gates, doors, and locks.
2. Personal presence of the possessor: In many cases, the possessor’s sheer
physical presence is enough to keep ownership, even if he lacks the physical power
to fight intervention. For example, a penny in a child’s hand suffices to indicate his
ownership of the currency, although that he lacks the physical capability to do so.
3. Secrecy: It is an efficient method of avoiding external influence and keeping an
object in one’s possession secure if a person maintains it in a hidden area.
4. Wrongful ownership is rarely seen favorable in modern cultures, thus respect
for a legitimate claim prevents others from interfering with the possessor’s lawful
possession.
5. The protection afforded by the possession of other things: Possession of one
object can sometimes lead to possession of additional items that are related to or
complementary to it. As a result, owning land entitles you to own everything is on
or under it. However, as in the case of South Staffordshire Waterworks Co. v.
Sharman (1896) 2 QB 442, the situation in this regard is not entirely clear.
6. The appearance of the Animus Domini is another indicator of possession
security. The claim’s visibility is another factor in the factual security of its
enjoyment. As a result, publicly utilizing something implies a prima facie
rightmindedness in its ownership.

Animus Possidendi
Possession does not imply mere juxtaposition. It must imply the possibility of
bodily control, as well as a desire to exert such power. Animism is the mental
component of possession.

2
South Staffordshire Waterworks Co. v. Sharman (1896) 2 QB 44
The Classical Roman jurists acknowledged two levels of authority over a
possessed thing, the lesser of which were referred to as detention and the highest as
possession, properly so-called.
In the context of the factor of animus in legal possession, the following points
should be taken into account:
a) The urge to acquire does not have to be righteous, and it might even be
deliberately wicked. The ownership of stolen goods by a criminal is no less
genuine than the possession of stolen goods by the rightful owner. R v.
Hudson (1943)3
b) The possessor must have sole ownership of the object in his possession. That
is, he must intend to keep others from using and enjoying the item.
However, the exclusion does not have to be complete.
c) The animus does not have to be accompanied by a claim or an intention to
utilize the items as owner. In the event of a promise, the pledgee has
ownership of the pledged items, even if he simply wants to keep them in
custody as a security to guarantee that his obligation is paid.
d) The possessor’s animus does not have to be his or her own. A servant, agent,
trustee, or bailee, for example, does not maintain goods in his possession for
his personal use, but rather for the benefit of another person.
e) The animus could not be particular; instead, it could be broad. For example,
a guy who has caught fish in his net has ownership of all of them, even
though he has no idea how many there are. Similarly, a person is assumed to
own all of the books in his library, even if he is unaware of the existence of
any of them.
f) The animus may not be specific instead it may be merely general. For
instance, a person who has caught fish in his net has possession of all of
them although he does not know their exact numbers. Likewise, a person is
deemed to have owned all the books in his library although he may not even
know about the existence of some of them.
g) It is important to note that when a person owns a receptacle, such as a box,
cabinet, or envelope, he also owns the contents of that receptacle.

3
R V Hudson (1943)
SAVIGNY THEORY
Savigny based his idea of possession on the Roman Jurist Paul’s text, emphasizing
that possession consists of two essential elements:
1. Corpus Possession
2. Animus Domini
By corpus, he meant effective physical control over the object, i.e., immediate
physical power to prevent the owner from being harmed by any outside agent.
Animus Domini (mental element of possession)-Domini is derived from the word
dominium. It is the result of Roman jurisprudence that leads to the concept of
ownership.
According to Savigny, Animus Domini is a mental aspect of possession, which
means that the court will think that the item has a right of full ownership.
We utilize Animus Domini with the deliberate goal of holding the thing as if we
are the owners, which includes excluding others’ influence.
There can be no possession without the mental aspect of animus. With animus
Domini, Savigny has strengthened the right of possession.
Animus Domini, which means “you are the complete owner of the item”
according to Savigny, should be held with this belief.
In terms of possession, Animus Domini is more powerful than Animus
Possidendi. For example, a courier boy is in possession, even though he does not
intend to keep it; nonetheless, he is in possession for the time being.
According to him, possession protection is a subset of personal protection, and just
as any act of violence against a person is illegal, so is any act that disrupts
possession through deception.
Criticism of the theory
Savigny was incorrect in his assumption that possession cannot be obtained
without corpus and animus, and that possession is lost when one or both of these
parts are gone.
In practice, we find that possession persists even if one of the parts is gone, and in
some cases even when both elements are missing.
Savigny has overlooked the fact that, even if both conditions are present, the law
does not safeguard a possession obtained illegally. As a result, a thief of a stolen
item is not protected by the law.

Salmond
Salmond defines Animus Possidendi as the act of excluding others’ rights. He was
primarily concerned with two issues:
1. The desire to assert one’s legal rights
2. Ignore other people’s power.

According to Salmond, Animus Possidendi must be employed to hold the item as

owner, and the right must be powerful such that we may exclude the authority of
others.
In modern jurisprudence, Salmond’s Animus Possidendi is a little weaker than
Savigny’s and more logical.
The Savigny right is far stronger than the only right of possession.
Animus possidendi is a modified form of Savigny’s thesis, but in this instance, he
just wants to enjoy his (owner’s) property, which is why he is excluding others.
According to Salmond, there are two forms of possession:
1. Possession-in-fact: This refers to physical possession in which you are
unsure whether or not you are lawfully in possession.
2. Possession-in-law: If you have possession in fact-in-law, corpus possession,
and animus possidendi, which are Salmond’s aspects of possession, the
people who are claiming have the most.
According to Salmond, a corpus possidendi has two sorts of relationships:
 1) The relationship with the object on which possession is claimed, and
2) Relationship with other people who are not included

Salmond defines possession as the continual exercise of a claim to exclusive use of

it. The act of asserting a claim entails two steps:

a) Corpus possidendi
b) Animus possidendi
Here he emphasized on intention to exclude others and use the property. In the case
of Bridges v. Hawkesworth (1851) 21 LJ QB 75 4, He referred it by saying that the
court had correctly decided that the shopkeeper had no intention of excluding other
people from the bundle of notes because he was unaware of its existence at his
shop and thus had no amicus, and thus the finder of the bundle had possession of it.

Ihering’s theory
He is a scholar of sociological school.
Ihering’s theory of possession looks to be more practical and realistic.
He claims that the mental aspect he described isn’t as dominant as Savigny’s and
isn’t as well-established as Salmond’s.
The most width mental element is of Ihering. He says that the purpose of the
mental element is only to support physical possession- he represents amicus as a
supporting element.
According to Ihering, in the vast majority of situations, the person who possesses
the property is the owner, and possession is assigned to them as an event of
ownership; there are relatively few cases where the owner’s purpose is
demonstrated.

4
Bridges v. Hawkesworth (1851) 21 LJ QB 75
He employs intelligent awareness-amicus simply means “knowledge of the
circumstance”–and possession is the ingredient that demonstrates nine points of
ownership.
He used a sociological method to describe the notion of possession in his theory,
taking an objective perspective.
Ihering used a more pragmatic view, not requiring the presence of amicus as a
condition of possession. He didn’t think of amicus as anything more than a
complement to possession.
Ihering contended that possession is ownership on the defensive. A person who is,
in reality exercising ownership must be protected and not have to prove title
against someone who is in unlawful possession.
Criticism
Although Ihering’s theory of possession is more acceptable than Savigny’s, it is
not without flaws. Because Ihering examined the idea of possession solely in the
context of Roman possessory interdicts, he is unable to explain why the law
refused to provide ‘possessory rights’ to those who were ineffective bodily control
of the possessed object.
The Ihering hypothesis fails to explain possession in cases where the possessor’s
right to possess an item is recognized and protected by law notwithstanding the
absence of both corpus and animus.

Ownership
Ownership has been defined in a variety of ways by jurists. They all agree,
however, that ownership is the most comprehensive or highest right that can be
exercised over something. According to Hibbert, ownership encompasses four
different types of rights: –

1. The right to utilize something

2. The right to prevent others from utilizing the item
3. The authority to destroy it
 4. Ownership is described as a “set of rights to use and enjoy the property,
including the right to transmit it to others,” according to Black’s Law
Dictionary.

As a result, ownership is the legal acknowledgement of a claim to a specific piece

of property. As a result, Hibbert proposes that no one can have absolute ownership
of land since it cannot be destroyed. It is only possible to have an estate in it. An
estate is a person’s legal interest in property that is measured in time and entitles
the party to utilize the land indefinitely.

Austin’s definition of ownership

According to Austin, ownership is a more powerful right than possession, and it is
an absolute right.
Ownership consists of the following elements:
– If we possess a piece of property, we can certainly make use of it.

– We have complete freedom to dispose of the property.

– That property’s right is for an indefinite period.

– Available in rem against the right.

According to Austin, ownership is “a right that exists against everyone subject to

the law granting the ability to put things to indefinite users.”
He goes on to argue that ownership is a right that is limitless in terms of duration,
unfettered in terms of use, and unrestricted in terms of disposal.
Being the owner also – you cannot dispose of the property in any way, it should be
disposed of properly.
Unlimited duration: Privy Purse Case (19705)
When British India gained independence, we were given India in two parts: India
and Pakistan, with 562 Siyasats belonging to the state. Indira Gandhi in 1970 gave
all the properties-purse (Royal Wajeefa). Slowly, the entire zamindari idea
vanished. As a result, it’s impossible to say how long the property will belong to
the true owner. As per acquisition law, the property is taken in control of law and
they give the compensation to the owners which end the ownership and this is
always done in the public interest (sociological theory can be applied as collective
social interest overrides an individual interest).

Indefinite User: This implies that the owner of a thing is free to use or even
misuse it in any manner he likes. The use of the word ‘indefinite’ has a special
significance because the use of land by the owner can be restricted by agreements
or the operation of law.
Criticism
Austin’s definition of ownership has been criticized by many writers. They argue
that it is fallacious to think that ownership is a single right, but it is a bundle of
rights including the right of use and enjoyment. Even if an owner relinquishes
some of the rights that come with ownership, he retains ownership of the
remainder.
For example, in the event of a mortgage, the landowner retains ownership of the
mortgaged property even though he has surrendered a right.

Modern definition
All of the preceding, i.e. indefinite use, unrestricted disposal, and limitless
duration, shall be carried out in line with the law.

5
Privy Purse Case (1970)
Case laws
Merry v. Green (1847) 7 M & W 6236
Facts
In this case, the plaintiff purchased a table in an auction and found the purse in one
of its drawers. Subsequently, he discovered that there was some money in the
secret drawer belonging to the vendor but he appropriated the same.

Issue
Whose purse was it? Whether the plaintiff will take it or has the right to keep it?
It was believed that it was not of the plaintiff but the seller because during the
process of transfer the element of intention for that purse was missing. The
intention to sell that purse was not of the seller and the buying of that purse was
not of the purchaser.
Held
The court held him guilty of larceny (theft) because the purchaser was ignorant
about the existence of money and the secret drawer hence he cannot be said to have
possession concerning that money and could not intend to possess the contents of
the secret drawer until he found it.

South Staffordshire Waterworks Co. v. Sharman (1896) 2 QB 44 [GOLD RING

CASE]7
Facts
In this case, the plaintiff company owned a pond upon their land. The company
employed the defendant to clean the pond. During the cleaning operation, the
defendant found gold rings at the bottom of the pond.
Held
6
Merry v. Green (1847) 7 M & W 623
7
South Staffordshire Waterworks Co. v. Sharman (1896) 2 QB 44 [GOLD RING CASE]
The court held that the company had the first possession of the rings by their being
the owner of the pond and hence the defendant acquired no title.

Bridges v. Hawkesworth (1851) 21 LJ QB 75 [BANK NOTE CASE]8

The doctrine of finder and keeper was brought in this case.
Facts
A person found a bundle of notes from the stairs of a shop and gave it to the
shopkeeper and says to give it to the person to whom it belongs (all administrations
were used but couldn’t found the real owner) and the shopkeeper keeps it and the
person who found it filed a case on the shopkeeper.
Issue
To whom the bundle of notes belongs?
The doctrine of res nullis was applied- The doctrine of finder keeper the person
who first found it will keep it.
The County court applied this doctrine in South Stafford Shiri Water Case. This
case was appealed on the divisional bench and Rod Ressel reserved the judgment
and said if you appoint a carpenter to open the cupboard or box, the matter in the
box will not be of the carpenter and states that it will be of the plaintiff. Here the
doctrine of finder keeper will not apply.

Hannah v. Peel (1945) 1 KB 509

In this case, the plaintiff was a soldier and he was asked to stay in a house and he
found a brooch from there. Defendant filed a suit against the soldier but the brooch
was not given to the owner as he did not take the house in physical possession and
the brooch was found on the floor.
In this case, two things were considered:
Corpus element was never in favor of the owner of the house.

8
Bridges v. Hawkesworth (1851) 21 LJ QB 75 [BANK NOTE CASE]
And the way the brooch was found the doctrine of res nullis was applicable.
Difference between possession and ownership
According to Ihering
Possession is a de-facto exercise of the claim and ownership is the de-jure
recognition of the claim.
According to Salmond
A person is the owner of a thing when his claim receives protection and
recognition from the law but possession may be exercised and realized without
such recognition or protection from the law.
The owner is the only one whose claim(right) is protected and recognized by law.
Sometimes there is illegal possession like mesne profit (the person has to pay it
back with interest). Possession may not be protected and recognized by law.
According to Dr. Asthana
Ownership is the soul and possession are the body and the existence of the body is
necessary for the realization of the soul.
Conclusion
Most people conflate the phrases “ownership” and “possession” and use them
interchangeably. However, in the legal world, both of these words have unique
legal meanings. De jure acknowledgement of a claim to a particular property is
known as ownership. The objective realization of ownership is possession. It is the
actual exercise of a claim to a specific piece of property. In contrast to the de jure
relationship of ownership, possession of a right is the de facto relationship of
continued exercise and enjoyment.
2. CONTENT OF OWNERSHIP- HONROE’S ANALYSIS
This is also known as Honore's bundle of rights.
When you own real property, you have certain rights that go along with that
ownership. These rights include;
a) Right to possession
- Possession is prima facie evidence of ownership. However, a person need not to
own a property for them to possess it as there are circumstances where there is
possession without ownership and also ownership without possession. This right
renders a person to control a property for one's use and enjoyment. Article 40 of
the Constitution of Kenya 9provides that every person has the right to acquire and
own a property of any description and in any part of Kenya.
b) Right to alienation
-This right permits the owner to dispose or transfer the property to someone else by
selling gifting or in form of inheritance. Dina management v county government of
Mombasa and 5 others10
-Article 40 COK,2010 permits citizens to acquire and own any property of their
interest and use it in the manner they intend. Hence it provides the freedom to use
and enjoy the benefits of the property as per the constitution. (Joseph Letuya and
21 others v AG and 5 othersi)11
c) Right to consume or destroy
- An owner has complete dominion over their property and thus can destroy it at
his will.
d) Right to security

9
Article 40 of the Constitution of Kenya
10
Dina management v county government of Mombasa and 5 others
11
Joseph Letuya and 21 others v AG and 5 others
- Article 40(5)12 provides that the state shall support, promote and protect the
intellectual property rights of the people of Kenya. This implies that a person may
take legal action against commission of unlawful deeds such as trespass and
damage of property. (Park Tower ltd v John Mithano Njika and 7 others13)
e) Right to privacy and exclude others
-One of the elements of ownership is to enjoy the use of the property in exclusion
of others hence gives the owner the mandate to run the property and have absolute
control.

3.FRAGMENTATION OF OWNERSHIP
-Fragmentation refers to breaking or separation into fragments.
-An object is fragmented when it is broken into small pieces, and a 'fragment' is
one of these pieces. In the context of land, therefore, a fragment can arise only as a
result of subdivision.
Two kinds of fragmentation can be envisaged:
1. the division of rural property into undersized units unfit for rational
exploitation.
2. and the excessive dispersion of the parcels forming parts of one unit.
In the first case (which, of course, can also occur in urban property) each of the
undersized units is the property of a separate owner, whereas in the second case
one person owns a number of separate undersized parcels.
It should be understood that fragmentation lies separately from multiple ownership
and subdivision. However, subdivision brings about fragmentation of property.
12
Article 40(5) Constitution of Kenya 2010
13
park tower ltd v jonh mithano njika and 7 others
Causes of fragmentation of ownership.
Undoubtedly the principal cause of fragmentation and multiple ownership is the
cumulative effect over successive generations of the laws of succession where
there is no rule of primogeniture, and particularly where there is plural marriage.
The right of inheritance is an integral feature of private ownership, and attitudes to
this right are based on long-established custom. if this social attitude to inheritance
could be changed such legislative measures alone would not be likely to result in
total elimination of fragmentation and excessive multiplicity of ownership, for in
most countries there are pressing economic factors which tend to increase the
incidence of this disease.
Having already mentioned that registration of title can be a contributory cause of
excessive multiplicity of ownership, for it is the fact that ever-diminishing shares
are recorded which restricts the negotiability of the land by keeping alive worthless
shares.
Growth in population is leading to competition for scarce land, and fragmentation
may result from sales as well as from inheritance.

Cure for fragmentation of property.

-The cure for fragmentation is consolidation.
CONSOLIDATION
The dictionary definition of 'consolidation' is - combination into a compact mass,
single body, or coherent
whole.
In the context of land consolidation, this means re-planning the proprietary land
units within a given area and redistributing them in units of economic size and
rational shape. Consolidation is thus the cure for both kinds of fragmentation,
excessive dispersion and excessive sub-division of holdings.
The word is, however, widely used both in a narrower and in a broader sense. The
legislation of West Pakistan, for example, restricts its meaning by defining it as
"the re-distribution of the lands in an estate so as to reduce the number of plots",
 and the legislation of several Indian States similarly uses it only in connection with
excessive dispersion.

THE MODERN PROCESS OF CONSOLIDATION

Differing principles and procedures have naturally been adopted by the many
countries which are currently engaged in consolidation measures.
Consolidation operations can be divided into two stages. In the first or preparatory
stage the consolidation area is defined, the existing land parcels are determined, the
rights exercised to these parcels are ascertained, and the land is classified and
valued. These operations are not necessarily all conducted at the same time, and
they may (and indeed frequently do) serve purposes unconnected with
consolidation, such as tax assessment. In the second stage a 'consolidation scheme'
or 'consolidation plan' is drawn up and implemented.
Dowson and Sheppard listed seven operations required after the consolidation
area had been defined.
They were writing principally in the context of consolidation in Europe but their
list is just as valid for developing countries, such as Kenya where, since their book
was published, a countrywide scheme has provided immense experience of
particular relevance to our theme because consolidation is combined with
adjudication and registration of title to the form that we expressly recommend.
The first two requirements in the Dowson and Sheppard list are:
I. Preparation of a plan of the proprietary units in the consolidation area.
II. Preparation of a schedule showing the names of owners, the number and areas
of their parcels, any subsidiary interest, the type and quality of the unit and any
other relevant particulars.

4. JOINT TENANCY V TENANCY IN COMMON

Land may be owned by one person or co-owned. There are two forms of co-owner
ship:
 Joint tenancy
 Tenancy in common

A) JOINT TENANCY
In joint tenancy every person is entitled to the whole of that land i.e. there are
no distinct shares. Neither loves or fractions or divisions of estates as in the case
of Fisher V Wigg (1700)14.
Before a joint tenancy can exist the four unities must be present.
The four unities;
1. Unity of Time - all owners acquire their interest at the same time.
2. Unity of Title - all owners receive their interest through the same document eg.
Title deed.
3. Unity of Interest - each owner has an equal share in the property.
4. Unity of Possession -all owners have equal rights to possess and use the entire
property.

Right of survivorship (Just Accrescendi)

Since a joint tenant is not regarded as having a distinct share in the co-owned land,
he or she is not able to dispose of his or her interest by will on death, nor will it
pass on intestacy if no will is made.
Upon death of one joint tenant the remaining equitable joint tenant obtains the
interest of the deceased.
Last survivor of the group becomes the sole beneficial owner of the land.

14
Fisher V Wigg (1700)
The right of survivorship dictates that if joint tenants die simultaneously it will be
taken that the oldest person died first whereas the youngest person died last. In the
Law of Property Act 1925, section 18415..
Exception to the right of survivorship; forfeiture - if you kill to obtain property you
will not obtain it.

LEGAL CO-OWNER SHIP

There cannot be a legal tenancy in common as far as the law is concerned in Law
of Property Act 1925, section 1(6).16
In equity co ownership can either be as a joint tenancy or tenancy in common.
Failure to complete the question does not fail the transfer, on the contrary the land
registry will assume you hold equitable interest as joint tenancy. Trustees Act
1925, section 34(2) 17limits the number of trustees to four.
B) TENANCY IN COMMON
-It can only exist in equity.
It simply provides an alternative way in which co-owners can hold the beneficial
interest in their property. It is distinguished from joint tenancy by the fact that each
co-owner has a distinct and quantifiable share of the land.
The right of survivorship does not apply to a tenancy in common hence the reason
why it is often preferred when the co-owners are not closely connected. None of
the four unities, apart from unity of Possession, are necessary in a tenancy in
common. However, the other may be present anyway.
It may arise through the severance of a joint tenancy. This means that the parties to
an equitable joint tenancy can choose to terminate that form of co ownership
during their lives. This is more often driven by the desire to avoid the right of
survivorship.

15
Law of Property Act 1925, section 184
16
in Law of Property Act 1925, section 1(6)
17
Trustees Act 1925, section 34(2)
SEVERANCE
One can only sever equitable joint tenancy and is often used to avoid the right of
survivorship.
There are two methods;
1) Notice in writing
This must be given to all the other joint tenants by leaving it at their last known
address or by posting it to that address by registered or recorded delivery. Once the
notice has been served it will be effective and will sever the joint tenancy, even if
the co-owner does not infect receive it as in the case of Kinch V Bullord.

2) Such Other Acts

Sir William Page Wood VC in Williams V Hensman (1861) 18provided three acts
that would enable one to sever the joint tenancy.
a) An act any person interested operating upon his own share
b) Mutual Agreement
This agreement need not be legally binding however there must be communication
and agreement as in the case of Carr V Isard (2006).19

DIFFERENCES
1. Property purchased as a family home is presumed to be equitable joint tenancy;
Stack V Dowden (2007)20
2. Property purchased for commercial purposes is presumed to be equitable
tenancy in common
3. Property purchased in unequal shares is presumed to be equitable tenancy in
common; Bull V Bull (1955)21
Advantages of Joint Tenancy

18
Sir Carr V Isard (2006). William Page Wood VC in Williams V Hensman (1861)
19
Carr V Isard (2006).
20
Stack V Dowden (2007)
21
Bull V Bull (1955)
1. If one of the co-owners dies the ownership rights automatically transfer to the
remaining owner(s)
2. It guarantees equal rights and ownership for all parties
3. If the property in joint tenancy was owned by unmarried persons, the remaining
owners or co-owners would also avoid the probate process, although they would
need to claim the inherited property as a gift.

Disadvantages
1.If one of the tenants owes a debt, a creditor has the power to terminate a joint
tenancy even if the other co-owners have nothing to do with that debt.

5) PRESENT AND FUTURE INTERESTS

In property law, interests in property are rights, claims, or legal privileges
regarding a specific property. These interests can be classified into two categories:
present interests and future interests.
1) PRESENT INTERESTS
These are property rights or claims that are currently active, allowing the holder to
enjoy or possess the property immediately.
-Fee Simple Absolute: The most complete ownership, where the owner has the
right to use, control, and transfer the property indefinitely.
-Life Estate: A person (life tenant) has the right to use and benefit from the
property for their lifetime. Upon their death, the property passes to another party
(the remainderman).
-Leasehold Estate: A tenant holds the right to use the property for a specified
period under a lease agreement.
-Concurrent Ownership: When more than one person has a simultaneous right to
possession and use of property (e.g., joint tenancy, tenancy in common).
2) FUTURE INTERESTS
These are rights or claims to property that will become possessory in the future,
usually following the termination of a present interest.

Remainder: A future interest that takes effect after the expiration of a life estate. If
the interest goes to a third party, it's called a remainder.
-Vested Remainder: The future interest is guaranteed to go to a known person.
-Contingent Remainder: The future interest depends on an event or condition
being fulfilled before possession is given.
Reversion: This occurs when a property reverts to the original owner or their heirs
after the expiration of a lesser estate, such as a life estate.
-Executory Interest: A future interest created in a third party that will cut short
another party’s interest, such as when property automatically shifts to a new owner
upon a specific event.
-Possibility of Reverter: The original grantor has the right to regain ownership if a
condition attached to the property is violated.

Future Trends and Evolving Considerations

In modern contexts, future interests may also evolve to incorporate:
 Environmental Concerns - Property interests may include covenants or
easements related to environmental conservation.
 Technological Property - As technology advances, there may be new forms
of intangible property rights, such as data ownership, intellectual property,
and virtual land in digital spaces (e.g., metaverse).
 Housing and Urban Development - The rise of co-living arrangements,
shared ownership models, and smart contracts in real estate could impact
how future property interests are structured.
Both present and future interests form the foundation of how property is
transferred, used, and regulated in law.

6.) LEGAL AND EQUITABLE INTEREST

Definitions
The legal interest of a property refers to the ownership rights that allow control of
the property in compliance with the law.
Equitable interest gives a person the right to enjoy the benefits of property
ownership, even if they are not the legal title holders. Legal interest results in
actual land ownership, while equitable interest provides rights to use and enjoy
land benefits without absolute ownership.
Legal interest in land was historically recognized and protected by common law
courts, while equitable interest was recognized and protected through equity.

Equitable interest may be formally created by a written agreement between parties,

resulting from the operation of law. This occurs when parties enter into a
specifically enforceable contract to convey or create a legal interest in land but fail
to fulfill the legal requirements for creating that interest. The resulting interest in
such cases is equitable. This is due to the principle that “equity looks on that as
done which ought to be done,” as seen in the case of ii Lysate vs. Edwards.
A COMPARISON OF LEGAL AND EQUITABLE INTERESTS
Most interests in land exist both at law and in equity. Thus, a fee simple, lease and
mortgage
could be an equitable or legal interest.
 One of the exceptions is a restrictive covenant which only exists in equity. In the
eyes of equity, an equitable interest is as much a proprietary interest as legal
interest. Remedies that accrue to a legal holder of a legal interest are available to a
holder of similar interest in equity. Indeed, the courts treat a holder of equitable
interest as if his or her
interest was a legal interest.
This is in respect to the maxim that “equity regards as done that which ought to be
done”(Walsh vs Lonsdaleiii). The maxim means that the moment one undertakes an
obligation in the interest of another, the courts of equity look at it as done; capable
of producing the same results as if obligation had been actually performed as
agreed.
The maxim can therefore be illustrated using:
1.Contracts of an executor nature- strict legal interpretation of contracts of sale of
land
points to the fact that the seller remains the legal owner of land until all conditions
are
met. On the other hand, if a transaction is at equity, where the conditions are not
met, the
vendor is considered to hold the land in trust for the purchaser, from the time the
agreement is done, although the conveyance has not yet been done.
2.The doctrine of conversion- This refers to transformation of one kind of property
into
another; such as land into money or money into land. In equity, an attempt to
convert is
deemed to be completed conversion. If there was part performance, then in equity,
the purchaser is entitled to full performance

Rights enforceable in Rem or Personam?

The determination of priorities between competing interests in land is a central
issue in land law. For example, if someone purchases land and there are third
parties who claim pre-existing interests in it, it becomes important to determine if
the purchaser is bound by such pre-existing third-party interests.
This can apply to situations like leases, rights of way, restrictive covenants, and
trust declarations. Legal interests generally have priority over equitable interests,
except in cases where a purchaser of a legal estate in the land acquires it in good
faith, for valuable consideration, and without notice of the equitable interest. If the
purchaser had knowledge of the equitable interest, they cannot acquire the legal
estate free from that equitable interest.
For example in the case of (swain vs. ayres)iv. A court may for example decline to
award specific performance if in its view the plaintiff’s claim could be adequately
satisfied by the payment of damages. Likewise, the court may refuse to grant
specific performance if the person seeking the orders does not come to court with
‘clean hands.’ In swain vs. ayres, the court refused to grant an order of specific
performance in favor of a tenant because he was in breach of several terms of his
agreement with the land owner.
Priority of Interests in Land One of the central issues in land law is the
determination of
priorities between competing interests in land. The need to do this arises where, for
example; a
person purchases land and there are third parties who claim pre-existing interests in
it. It
therefore, becomes important to determine if the purchaser is to be bound by such
pre-existing
third party interests.

Historically, legal rights were simply indefeasible. This was expressed by the
maxim that legal rights bind the world a legal right would always gain priority over
any subsequent rights acquired in the land whether legal or equitable. Legal
interests were not therefore defeated by changes in the ownership of the land or by
other subsequently acquired interests.

As a general rule, a legal claim prevails over an earlier created equitable interest
unless there are
equitable grounds for its postponement. Equitable interests were not as durable as
legal interests
and did not bind the world automatically. As between themselves, priority to
equitable interests
was governed by the order of their creation, so that pre-existing equitable interests
took priority
over those, which were created subsequent to them. In relation to legal interests
however, it was
not necessarily the case that a pre-existing equitable interest would have priority
over a
subsequently created legal interest. In a sense, legal interests had the ability to
trump pre-existing
equitable interests with some exceptions.

One of these arises in the application of the doctrine of notice. According to this,
equitable
interests took priority over all subsequently created interests except those of a
person who had
purchased a legal estate in the land, bona fides, for valuable consideration without
notice of the
existence of the equitable interest. The element of notice means that if a purchaser
knew, or
should have known about the existence of the equitable interest, he cannot acquire
his legal
estate free from that equitable interest. Such a legal interest holder is presumed to
have known
what he was getting; an already encumbered

The term purchase technically denotes a person to whom land is expressly

transferred by action
of the parties rather than by operation of law. Thus a buyer, done, mortgagee or
lease is a
purchaser. But a person who acquires land by intestate succession is not a
purchaser because he
acquires title by operation of law i.e. has to apply to court for letters of admin and
term.

7. LIMITATION OF OWNERSHIP
This means one can continue acquiring land is barred therefore they cannot be
recognized by law as legitimate owners. This limitation is provided for by the
Constitution and statutes. The limitation can be by:
1) Leasehold by foreigners
Article 65. (1) A person who is not a citizen may hold land based on leasehold
tenure
only, and any such lease, however, granted, shall not exceed ninety-nine years.
 (2) If a provision of any agreement, deed, conveyance or document of
whatever nature purports to confer on a person who is not a citizen interest in land
greater than a ninety-nine-year lease, the provision shall be regarded as
conferring on the person a ninety-nine-year leasehold interest, and no more.

Foreigners cannot acquire land on freehold. Further the Constitution limits the
number of years they can hold that land, which is 99 years only. After the eruption
of such time, they shall not be regarded as legal owners not unless they renew their
leasehold, and here, they are expected to give reasons for such.

Article 43(3) For purposes of this Article— (a) a body corporate shall be
regarded as a citizen
only if the body corporate is wholly owned by one or more citizens; and
(b) property held in trust shall be regarded as being held by a citizen only if all of
the
beneficial interest of the trust is held by persons who are citizens.

This means that when a foreigner has shares on a company that company cannot
own land on
freehold basis since it shall be regarded as foreign company
The land control act also limits the ownership of agricultural land on land
controlled areas that is
land under section 3 of land control act to non-citizens according to section 9
which provides:
(1) In deciding whether to grant or refuse consent in respect of a controlled
transaction, a land
control board shall
(c) refuse consent in any case in which the land or share is to be disposed of
by way of sale, transfer, lease, exchange or partition to a person who is not—
(i) a citizen of Kenya
(ii) (ii) a private company or co-operative society all of whose
members are citizens of Kenya
However, the president may exempt anyone on this provision through gazette
notice and any
foreigner holding public land can use it for agricultural means.
2) Eminent domain doctrine
The doctrine of eminent domain refers to the eminent power of the state to
compulsorily acquire
privately owned land for public use.
Article 40 (3) provides that.
a) The State shall not deprive a person of property of any description, or of any
interest in, or right over, property of any description, unless the deprivation
(b) is for public purpose or in the public interest and is carried out in accordance
with this Constitution and any Act of Parliament that- requires prompt payment in
full, of just compensation to the person; and this provision provides that the state
may deprive one of their land for the purpose of public use, such as infrastructure
development This limits one ownership of that land.
However, the deprivation is subjected to reasonable compensation through full
payment.
3) Illegal acquisition of land
Section 26 of the Land Registration Act provides that:
“26. (1) The certificate of title issued by the Registrar upon registration, or to a
purchaser of land
upon a transfer or transmission by the proprietor shall be taken by all courts as
prima facie
 evidence that the person named as proprietor of the land is the absolute and
indefeasible owner,
subject to the encumbrances, easements, restrictions and conditions contained or
endorsed in the
certificate and the title of that proprietor shall not be subject to challenge, except
(a) On the ground of fraud or misrepresentation to which the person is proved to
be a party; or
(b) where the certificate of title has been acquired illegally, procedurally or
through a corrupt
scheme.”
Indefeasibility of title is the principle by which land title is acquired in good faith
and for
valuable consideration can be challenged by anyone claiming the same property
except on the
circumstances provided by law. Hence once one acquires a title it is valid and
conclusive,
however, when the land was acquired illegally, the land title was invalid. In the
case of Dina
management board v county of Mombasa the court held that bona fide purchaser
should acquire
land that has a valid and valid titles and that possession of title alone does not
guarantee legal
ownership of land especially when the previous owner had acquired the land
illegally
In the case of :Ethics and Anti-Corruption Commission vs Simon Thao Muchiriv
The court canceled the land lease title held by the defendant on the ground that it
was held
fraudulently citing section 26 and is consequently null and void, ineffectual to
confer any right,
interest or title upon the defendant.
4)Adverse possession
A land owner may lose the ownership of land through adverse possession after a
period of 12yrs.
Limitation of Action Act provides that an action may be brought by any person to
recover land
after the end of 12yrs from the date on which the right of action accrued to him or,
if it first
accrued to some person through whom he claims to that person.
This provision bars landowners from bringing an action after 12 years of their land
being in
occupation. they have no legal means of exerting their title against the adverse
possessor as in
the case of Kipkurgat Tarus v Joseph Kipsang Taurusvi
From the foregoing, I find that the plaintiff has proved his case that he has acquired
the suit's land
by way of adverse possession and is entitled to be registered as owner of 1,3 acres
of the suit
land. This stipulates that the owner of the land may lose his claim over the said
land in case one
possesses I by adverse possession means.
5)Succession law
Section 45(1) of the Law of Succession Act, 17provides as follows:
Except so far as expressly authorized by this Act, or by any other written law, or
by a grant of
representation under this Act, no person shall, for any purpose, take possession or
dispose of, or
otherwise intermeddle, any free property of a deceased person.
.In Morris Mwiti Mburugu v Denis Kimanthi M’Mburugu,vii the Court while
interpreting the
cited provision held that:
“From the foregoing, it is clear, and I so hold, that where any person interferes
with the free
property of the deceased or deals with an estate of a deceased person contrary to
the provisions
of sections 45 and 82 of the Act, that is intermeddling, is unlawful and cannot be
protected by the
court. The transaction is subject to be nullified and set aside at the instance of the
innocent
beneficiaries who may have been affected by the act but were not involved in the
same.”

IN CONCLUSION
Ownership of property is a fundamental right for all citizens provided in Article
40(1) of the
Kenyan Constitution 2010, which provides that, subject to Article 65, every person
has the right
, either individually or in association with others, to own property of any
description and I. any
part of Kenya.
The right of ownership can be limited by the rights of other property.
There are two major types of limitation on ownership of property;
1. General limitation- those held and exercised by the state eg. taxation and
eminent domain.
2. Specific limitations - those imposed by the law and those imposed by contracts.
GENERAL LIMITATION
1. Taxation - government may impose a tax on property and if these are not paid
property may be
seized.
Article 210(1) of the Kenyan Constitution provides that no tax or licensing fee
may be imposed,
waived or varied except as provided by legislation.
2. Police power- property may be seized in the interest of health safety or security
and the
owners shall not be entitled to any compensation.
In the case of Ng'ang'a v. Nairobi Liquor boardviii,The governor of Nairobi
terminated the licenses
of alcoholics when he came to power due to the noise and for safety and security
purposes of the
neighborhood.
3. Eminent domain- no person shall be deprived of his property except by
competent court and
for public use and always upon payment of compensation as provided under
Article 40(3)(b)
which provides that, the state shall not deprive a person of property unless the
deprivation is for public purpose or in public interest and carried out in accordance
with the constitution and any Act of Parliament.
I'm the case of Kohl v. United States ix the court ruled in favor of the government,
stating that the government may develop legislation to further define eminent
domain, but legislation is not required to make use of the power.
SPECIFIC LEGISLATION
1.Sic utere tuo it alienum non laedas- which means the owner of a thing cannot
make use of thereof in such a manner as to injure the rights of the third person as
provided in Article 24(1)(d), a right or a fundamental freedom can be limited if
there is need to ensure that the enjoyment of the rights and fundamental freedoms
by any individual does not prejudice the rights and fundamental freedoms of
others.
2. Nuisance - a public nuisance maybe abated without judicial proceedings. In R v.
Kisanga and othersx , the court held that if the court is satisfied that the alleged
nuisance exists , the court shall make an order on the author thereof, or the
occupier or owner of the dweller premises , as the case may be requiring him to
comply with all or any of the requirements of the notice otherwise to remove the
nuisance within a specific time.
3. Leasehold by foreigners- Non Kenyan citizens can acquire land as individuals
provided they adhere to the leasehold tenure limit of 99 years.
Article 65 (1) of the Kenyan Constitution provides, a person who is not a citizen
may hold land
on the basis of leasehold tenure only and such lease, however granted, shall not
exceed 99 years.
In the matter of Kims Poultry farm ltd, the court was guided by Article 65 (1) held
that a person who is not a citizen may hold land on the basis of leasehold only and
such leasehold shall note exceed 99 years.
i
Lysaght vs. Edwards
ii
Walsh vs Lonsdale).
iii
. swain vs. ayres
iv
Ethics and Anti-Corruption Commission vs Simon Thuo Muchiri15
v
Kipkurgat Tarus v Joseph Kipsang Taurus
vi
Morris Mwiti Mburugu v Denis Kimanthi M’Mburugu,
vii
, Ng'ang'a v. Nairobi Liquor board
viii

ix
Kohl v. United States
x
R v. Kisanga and others