The fallacy of absolute proprietorship in Kenya
Kimanthi, Musyoki W.
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Land remains a very sensitive and emotive form of property as far as property jurisprudence in this country is concerned. Many problems abound when matters concerning appropriation and ownership of land arise. This is because there are those people who lay customary claim to land whereas others claim the modern forms of land ownership. Moreover the state also lays a claim over land by virtue of its sovereignty and radical title. It cannot be gainsaid that this country is so civilised that customary law has no place in its citizenry. Therefore, two antagonistic systems of property ownership which both seem to lay legitimate claim over land exist side by side. In the light of the above circumstances, a plethora of cases concerning land ownership has visited our courts. Sadly, it appears that no adequate solutions have been reached. Parliament on its part has released a barrage of statutes, which also do not seem workable, not forgetting the commissions of inquiry and such stuff. It is on these premises that this work is based and recommendations posed as my humble contribution in finding a lasting solution. Chapter One is an inquiry into the imposition of the foreign land law, which destabilised the customary institutions regulating land ownership. The chapter looks at the consequences of imposition of English property law and the present situation. Chapter Two looks at some of the doctrines of the imported law and how they have impacted on land ownership. The chapter is also an attempt to show how the doctrines have contradicted the principles that they seek to uphold. It is my contention that despite assurances of indefeasible title, the content of absolute proprietorship has been abused through enactment of numerous statutes which limit the enjoyment of private property. The Chapter looks at some of the statutes whose operation is either to restrict or limit the enjoyment of private property. Customary law as mentioned earlier, was not phased out by imposition of foreign law and it in fact forms part and parcel of Kenyan peoples' way of life. These peoples' way of life is also predicated on land and therefore its ownership is very crucial to their survival and stability. This survival is threatened by what seems to be ununderstandable to the people, the Registered Land. Chapter Three therefore looks at how the courts, some of them comprised of same customary people, have interpreted the new land legislation in the light of the existing mode of ownership and the government's regulatory powers. It is in the light of the above confusion that Chapter Four attempts to suggest some ways of getting out of this quagmire.