UNIT : CONVEYANCING LAW AND PRACTICE
GROUP WORK CAT 1 ASSIGNMENT
FIRM : TRINITY LAW FIRM
FIRM MEMBERS :
1. OTIENO LAURA ADONGO - 119844
2. JANICE MURIUKI - 121305
3. MITCHELLE KOBIA - 113018
4. NATASHA CHAO - 101258
5. NDUNG’U JEWEL KARUNGARI - 098804
6. KARIUKI ANITA NDUTA - 122574
7. GITAU ELSA NYAKIO - 121342
8. NDERITU GEORGINA NYARUAI - 121228
9. OMBATI STACEY NYARANGI - 119327
10. NJOROGE PHILLIP MURIITHI - 121376
Question Five:
Conveyancing inevitably relates to other areas of law; one such area of law is the Law of
Succession and Land Law. Placing reliance on decided Kenyan cases, discuss the relationship
between Conveyancing and the two areas of law (20 marks).
A. Conveyancing and Land Law
Land being the subject matter of conveyancing
The basic definition of convey is to transfer. Conveyancing is generally defined as the transfer of
interests, with the use of legal instruments of interests, in land by legal process from one juridical
person to another.1 The unique relationship Conveyancing and Land law lies on the focus of land
as opposed to any other chattel, being the main subject matter of Conveyancing. While there are
numerous definitions accorded to the word ‘land’ in Kenyan statutes depending on the context,
there is a general consensus that land includes the soil, buildings and anything growing on the
land with exceptions accorded to the geospace and aerospace.2 Land is crucial in conveyancing
as different interests in land are passed in every transaction. Interest in land is divided into
freehold interest and leasehold interest.3 Freehold interest is an interest where the owner enjoys
absolute title. Leasehold interest denotes that an interest in a land is for a fixed term of years. In
conveyancing, the freehold interest is governed by the Registered Land Act (RLA) while the
leasehold interest is governed by the Registered Title Act (RTA) and the Government Land Act
(GLA). Furthermore, land law forms part of the general law that deals with the management of
real (immovable) property, conveyancing comes in as the application of law of real property in
practice.4
Disposition of property
There are different ways of disposition of land such as compulsory acquisition, adverse
possession, land adjudication and settlement programs which are discussed in detail in the law of
property. However, while freedom of disposition exists, it is subject to numerous statutory
limitations and public policy for a transfer to be valid. The following are ways in which one can
1
Ojienda T, Principles of Conveyancing: A Practical Approach, Law Africa Publishing Ltd, 2015, 24.
2
Ojienda T, Principles of Conveyancing: A Practical Approach, 59.
3
Section 5, Land Act (No. 6 of 2012); Kariuki F, Ouma S, Ng’etich R, ‘Property Law’, Strathmore University Press,
2016, 136.
4
Ojienda T, Principles of Conveyancing: A Practical Approach, 26.
acquire property in Kenya: adverse possession, compulsory acquisition, settlement schemes,
transfers, land adjudication and transmissions.5
a) Adverse possession
The acquisition of land through adverse possession occurs when a person acquires title to land
upon continuous, notorious, open, notorious, exclusive and adverse occupation for twelve years
without interruption.6 The policy behind adverse possession is to transfer title to another person
where the original owner has failed to protect his property as well as make it more productive.
The acquisition of land through public possession is not applicable to public land.7
b) Compulsory acquisition
Land might be acquired compulsorily as stipulated in Article 40(3) of the Constitution of Kenya
as read together with Section 6 of the Land Acquisition Act, subject to certain requirements. One
must demonstrate that the compulsory acquisition is for the public interest and that the person
has been awarded prompt, full and just payment.8 Furthermore, the person having interest in or
over the land has a right of direct access to a court of law.9 The Land Acquisition Act states that
if the Minister of Lands is satisfied that any land is required for the public interest, the
Commissioner of Lands should issue a notice in the Kenya Gazette and a copy should be issued
to persons having an interest in the land. The persons are to receive an award of compensation
upon verification of their interests in the land.10
c) Settlement Schemes
Section 7 of the Land Act provides for settlement programmes as one of the ways of acquisition
of title to land.11 The Act stipulates that the Commissioner of Lands should implement settlement
programmes to squatters, persons displaced by natural causes, development projects,
5
Section 7, Land Act (No. 6 of 2012).
6
Celina Muthoni Kithinji v Safiya Binti Swaleh & 8 others (2018) eKLR.
7
Article 62(2) and 62(3), Constitution of Kenya (2010).
8
Article 40(3), Constitution of Kenya (2010).
9
Nightshade Properties Ltd v National Land Commission & 3 others (2021) eKLR.
10
Sections 6 and 13, Land Acquisition Act (No. 295 of 2010).
11
Section 7, Land Act (No. 6 of 2012).
conservation, internal conflicts or other such causes that may lead to movement and
displacement.12
d) Transmission
This is the transfer of land from one person to another by operation of law.13 This is usually
applicable where the one who has interest in land is unable to transfer the land himself usually in
instances of death and bankruptcy.
e) Transfer
A transfer of interest in land takes place where there is a willing buyer and willing seller. In
conveyancing, a transfer is to be executed and attested by witnesses.14 The transfer is to be
accompanied by documentary evidence ascertaining the interest a person has in the property. A
transfer of land from the vendor to the purchaser is deemed complete upon registration of the
transferee as the proprietor of land, charge or lease.15
Land law entails land at rest while conveyancing is land in motion
Emanating from the understanding that land law is the section of the general law that regulates
the allocation of rights and obligations, conveyancing, in relation to immovable or rather real
property, has been regarded as the application of the law of real property in practice.16 When one
is in possession of land, they have rights and interests in that land that are guaranteed. The Latin
maxim ‘cuius est solum eius est usque ad coelum et ad inferos’ refers to the absolute rights that
have been conferred upon a landowner.17 Given a scenario where this owner wants to sell the
land, conveyancing law will apply because there is a transfer of rights and interests from the
seller to the purchaser.
Land law deals with principles that define rights and interests that one can enjoy in the land as
well as the liabilities that come along with it. Conveyancing law, on the other hand, is mainly
12
Section 131(1) and 133(2), Land Act (No 6. of 2012).
13
Ojienda T, Principles of Conveyancing: A Practical Approach, 107.
14
Section 44(2) , Land Registration Act (No. 3 of 2012).
15
Section 44 , Land Act (No. 6 of 2012).
16
Ojienda T, Principles of Conveyancing: A Practical Approach, 25.
17
Kelsen v Imperial Tobacco (1957),United Kingdom House of Lords.
concerned with the practical legal mechanisms applied in the transfer of those rights, interests
and liabilities in which those rights and interests are transferred from one person to another.18
According to Ojienda, land law is static while conveyancing is dynamic. Additionally, it is trite
knowledge that conveyancing is the procedural law whose subject matter is the estates and
interests dealt with in land law. Therefore, for one to get a succinct understanding of
conveyancing and all the principles it entails, they must have knowledge of land law.19
Conveyancing aids in enforcing the right to transfer
Along the same vein, conveyancing is a right within the ‘bundle of rights.’ In common law, there
exists the bundle of rights which imposes duties and rights upon persons with regards to
property, in this case land.20 A title holder may enjoy all or certain rights within this bundle or
transfer them to another. This doctrine of the ‘bundle of rights’ was recognised by Justice
Munyao Sila in the case of Sarah Kimutai v Tito Tarus & 5 others.21 The plaintiff in this case was
the holder of a lease title whose land was known as Eldoret Municipality Block 15/2428. She
instituted the suit to obtain a permanent injunction against six defendants from interfering and
encroaching on the parcel of land. The defendants’ case was that they had occupied the land for
twelve years and therefore were entitled to claim the land as their own but upon inquiry by the
court, this defence was null and void as it was untrue. They further failed to appear in court and
their counsel applied for an adjournment of the proceedings on the ground that he had applied for
an application to cease acting. The court disallowed the adjournment as it was improper to file
for it on the day of the proceedings. Upon hearing of the matter from the counsel of the plaintiff,
the court found that the plaintiff was the registered holder of the lease title and was therefore
entitled to enjoy her bundle of rights on the land without interference.
Modern day legal scholars who have specialised in land law identified the most essential rights
that make up proprietorship and these are rights to: exclude; possess and use and; exclude.22 This
right to transfer land is the cornerstone of the relationship between land law and conveyancing
law. Article 43 of the Land Act spells out the meaning of ‘transfer’ and provides for the right to
18
Ogeka Z ,‘Conveyancing’ The Knowledge Tree,
2014—<[Link] on 21 February 2017.
19
Ojienda T, Principles of Conveyancing: A Practical Approach, Law Africa Publishing Ltd, 2015, 26.
20
Ogendo O, Teaching manuals on the law of property, University of Nairobi, 1982, 83-84; see also Kariuki F,
Ouma S, Ng’etich R, Property Law, Strathmore University Press, 2016, 5.
21
Sarah Kimutai v Tito Tarus & 5 others (2012) eKLR.
22
Kariuki F, Ouma S, Ng’etich R, Property Law, 5.
transfer land.23 It not only provides for the transfer of this right by the title holder, but also by the
operation of the law for example by way of transmission (occurs after death) and insolvency or
liquidation of a legal person.24 These aforementioned methods of transfer are encompassed
within both land law and to a greater extent, conveyancing.
Land transfer instruments correspond with different interests in land
There are various types of interests in land in Kenya including: freehold and leasehold.25 These
two rights are transferable between one person and another subject to the law of conveyancing.
Under the Land Act of 2012, freehold is defined as the perpetual right to use and dispose of land,
subject to the rights of others and the regulatory authorities of the national government, county
governments, and other applicable state organisations.26 It is also known as absolute
proprietorship. Ownership under freehold tenure is proved by a legal document known as a title
deed, as was stated in the case of Care Mission Kenya & 4 others v Benta Akinyi Otieno &
another.27 Land under freehold tenure is deemed to be private land,28 and is only limited to
Kenyan citizens.29 As the owner of a freehold property, one has complete freedom to enjoy free
ownership (sell, renovate, or transfer) of the property and can use it for whatever purpose, as
long as the local restrictions are respected. The owner's entitlement to the property is
unrestricted. This sort of property can be transferred by the registration of a sale deed.30
Leasehold, on the other hand, is proved by a lease document. A lease is the grant, with or without
consideration, by a landowner of the right to exclusive possession of his or her land, which
includes the right granted and the instrument granting it, as well as a sublease but excludes a
lease agreement.31 In the case of leasehold property, the government provides ownership for a
period of 99 years.32 It is also possible to limit one's stay to a specific time frame. The buyer is
not the property's owner in this case. The ground rent must be paid to the property's owner or
23
Article 43, Land Act (No. 6 of 2012).
24
Kariuki F, Ouma S, Ng’etich R, Property Law, 9.
25
REDD+ Law Project, Land tenure classifications in Kenya, July 2014, 7.
26
Section 2, Land Act (No. 6 of 2012).
27
(2019) eKLR.
28
Article 64(a), Constitution of Kenya (2010).
29
Article 65(1), Constitution of Kenya (2010).
30
Sitawi Limited v National Land Commission - Nairobi & 2 others (2020) eKLR.
31
Section 2, Land Act (No. 6 of 2012).
32
Article 65(1), Constitution of Kenya (2010).
leaseholder, and once the lease period has elapsed, the property rights will revert to the owner,
and the leasehold may be extended as desired.33
B. Conveyancing and The Law of Succession
Execution and Attestation
The law of conveyancing deals with the transfer of title. On the other hand, the law of succession
deals with the inheritance of property. The law of conveyancing, as far as execution and
attestation are concerned, relates to testate succession. Transfer of title from a deceased testator
to the beneficiary requires that the testamentary document transferring title be properly
construed. Proper construction of a written will requires that it be executed and attested
according to the laws on succession in Kenya. The will must be signed by the maker or some
other person in his presence and direction.34 The signature must be such that the testator intended
to give effect to the will.
Afterwards, it is required that the will be attested by two or more competent witnesses35 who
must all sign in the testator’s presence.36 In case the witnesses are beneficiaries, there has to be
two other witnesses. Above all, the testator should have the capacity to make that will. Capacity
is alluded to as adult age and sound mind.37 In Banks v Goodfellow, sound mind was said to be
bundled with sound memory and sound understanding. Finally, the courts must be convinced that
the will was constructed using the testator’s free agency, in the absence of all forms of fraud,
coercion and importunity.38 The relationship with conveyancing is that upon confirmation that
the will is valid, the title upon the land can then be transferred to the beneficiary who is the new
owner. It is also possible that land rights initially belonging to one owner need to be transferred
to multiple people under succession. For example, in Beth Wambui & another v Gathoni Gikonyo
& 3 others, the deceased had a parcel of land accruing to 11 acres and distributed it among his
children and wife.39 In this sense, the legal validity of the will gives proprietary rights to enable
transfer of title.
33
Sitawi Limited v National Land Commission - Nairobi & 2 others (2020) eKLR.
34
Section 11(a), Law of Succession Act (Cap. 160 Laws of Kenya).
35
Section 11(c), Law of Succession Act (Cap. 160 Laws of Kenya).
36
See Beth Wambui & another v Gathoni Gikonyo & 3 others (1988) eKLR.
37
Section 5, Law of Succession Act (Cap. 160 Laws of Kenya).
38
Section 7, Law of Succession Act (Cap. 160 Laws of Kenya).
39
(1988) eKLR.
Disposition of estates by transmission
Transmission is the passing of land, lease or charge from one person to the other by operation of
the law. As aforementioned, conveyancing involves transfer of estates and interests in land by
legal process.40 On the other hand, succession similarly deals with matters of inheritance.
Inheritance, however, can only take place after the death of the owner of the property in question
and thereafter, the property is devolved to the heirs and beneficiaries.41
Disposition of property by transmission is indistinguishable from the law of succession as the
proprietor of the land is not in a position to transfer the land or estate by himself, which makes it
a unique type of conveyancing.42 This proprietor is normally dead, insolvent or bankrupt. So as
to demonstrate the similarity between the law of conveyancing and that of succession, this paper
will dwell more on the transmission of property upon death of the proprietor.
The LTA, GLA and RTA require that when the proprietor of land dies, the administration of his
estates are registered as proprietors against the title with the probate or letters of administration.43
Upon death of the proprietor, the personal representative or administrator of the estate of the
deceased has to make an application to the registrar.44 They will be required to produce letters of
probate or administration and thereafter, the registrar is satisfied they can deal with the land. This
is also the case when it comes to a lease or a charge. Therefore, the relationship established here
is that both branches of law require the proof of letters of probate or letters of administration
when it comes to transmission of an estate or property of a deceased proprietor.
Powers of Investment
According to the law of succession, whether the deceased died testate or intestate, the
administration of his or her estate is the responsibility of the personal representatives of the
deceased.45 In the case of Stephens and another v Stephens and another, the court stated that a
personal representative of the deceased owes a duty to pay all the debts of the intestate and
thereafter distribute the rest of the estate to the beneficiaries.46 The provisions relating to the
40
Ojienda T, Principles of Conveyancing in Kenya: A Practical Approach, 107.
41
Musyoka W, Law of Succession, LawAfrica Publishing, 2006, 3.
42
Ojienda T, Principle of Conveyancing in Kenya, 107.
43
Ojienda T, Principle of Conveyancing in Kenya, 107.
44
Section 52, Registration of Titles Act (Cap. 281 Laws of Kenya).
45
Musyoka W, Law of Succession, 231.
46
Stephens and another v Stephens and another (1987) eKLR 125.
administration of estates and specifically the powers of investment are governed by the law of
succession but are also dependent on conveyancing law.
These wills usually give personal representatives wide powers of investment under section 90 of
the Law of Succession Act. On the other hand, section 7 allows investment on mortgage of
leasehold property, acceptance of legal charges as well as debenture stock under the Registration
of Titles Act.
The personal representative may, under section 11, lend money on the security of any property
on which he can lawfully lend.47 Under section 12, there is power, pending the negotiation and
preparation of any mortgage or charge or during any other time when investment is being sought,
to deposit money at a bank, where any interest earned should be applied as income.48
Transfer of land interest in cases of intestacy
A landowner may hold an interest in land on either freehold or leasehold. Freehold interest is
when a registered property owner has an unfettered right to use and dispose of his or her land,49
while a leasehold property owner denotes that one holds the estate for a fixed term of years.
Once time extinguishes, the land reverts back to the owner. However, a lease holder may renew
his tenancy for a further specified period to obtain a right to reside in the land.50 When a property
owner dies without a will, the rules of intestacy will be relied on to put the land under his heirs.
This is the point of convergence between the two laws. Depending on the type of interest a
deceased had before his demise, the interest will be conveyed.
The law of succession identifies to whom and the percentage of share to be received. For
instance, where one surviving spouse and a child or children have been left, the surviving wife is
entitled to a life interest of the remaining net intestate estate, provided she does not remarry.51
This was seen in the case of In the Matter of the Estate of Charles Muigai Ndung’u.52 The widow
lost the life interest after she remarried, and her child was found to be the sole successor of the
deceased estate.
47
Section 11, Registration of Titles Act (Cap. 281 Laws of Kenya).
48
Section 12, Registration of Titles Act (Cap. 281 Laws of Kenya).
49
Ojienda T, Principle of Conveyancing in Kenya, 59.
50
Ojienda T, Principle of Conveyancing in Kenya, 60.
51
Section 35(1), Law of Succession Act (Cap. 160 Laws of Kenya).
52
In the Matter of the Estate of Charles Muigai Ndung’u (deceased) of Karinde (2002) eKLR.
This could also be seen in the case of In the Matter of the Estate of Anjuri (Deceased).53 A
widow was left with her three children. She applied for a grant of letters of administration of the
deceased intestate estate. However, several others who alleged to be beneficiaries opposed her
application. These were the deceased’s sisters, brothers, mother and a purported daughter. The
mother was the only one who proved dependency, the applications of the others for opposition
were dismissed. The court reasoned using the section 29 of the Law of Succession Act, which
ascertains the class of people who can claim dependency,54 and the circumstances to be
considered by the court for one to be considered a dependant.55 A dependant must prove that
these two exist to benefit in cases of intestacy.
53
In the Matter of the Estate of Anjuri (Deceased) (1997) eKLR.
54
Section 29, Law of Succession Act (Cap. 160 Laws of Kenya).
55
Section 28, Law of Succession Act (Cap. 160 Laws of Kenya).
