The common law maxim cujus est solem ejus et usque ad coelum et ad inferos affirms that whoever owns a piece of land owns it all the way up to heaven and all the way down to hell.  It is on this basis that Kenya’s substantive land law and registration systems are based.  For a long time, courts and practitioners in the Kenyan coastal region have had to grapple with the concept of ownership of house without land.   It entails the purchase of a portion of land which does not grant ownership rights to the purchaser. The purchaser after payment of the agreed consideration, acquires the right to construct a house on the portion of land without passing title. It is a lease for which a monthly ground rent is payable by the purchaser to the owner of the land.  

This land system presents a conundrum in the application of the right to ownership of private land under Article 64 of Kenya’s 2010 Constitution. What happens in the event that the owner of the land demands his land back after a person has invested in constructing on it? The answer can only be that the person will lose his investment because the land has been defined by Article 256 to include the surface of the earth and the subsurface rock. Further, should mineral deposits be discovered on a piece of land, residents of that plot would be unable to seek compensation irrespective of how long they have lived there as they would hold no title to the land.

The courts previously took judicial notice of this system, as in Samuel Njuguna Kimemia v Rose Mgeni Mtwana [2012] eKLR. However, they are no longer inclined to recognise this concept: in a 2015 Land case Ruling by Justice Oscar Angote, he stated,

The operative land statutes do not recognise this concept of a house without land any longer. The concept of a house without land, although recognised under the repealed Land Titles Act, defies the existing definition of “land” and “lease” in our laws.

Even with the Land Act 2012 and Land Registration Act 2012 which annulled the Land Titles Act (1908) that originally propagated this odd system, county governments still approved building on land without direct interest on the land itself.

Notwithstanding the law and the courts’ position on the issue, the system remains prevalent, even despite authorities being inhibited from approving buildings on land without titles. This land system can cause a nightmare for widows and widowers in the coast region in relation to succession matters. In re Estate of the Late M’Marete M’Ntii [2016] eKLR,  for instance, the High Court ruled that the house in question formed part of the estate of the deceased, thus leaving the tenants of a ‘house without land’ stranded.

The lack of clear land ownership increases the difficulty for individuals to invest in and develop their properties, leading to limited economic opportunities and growth in the coastal region. Moreover, this situation has disproportionately impacted marginalised groups, including women and minorities, who often face additional barriers in securing property rights.

To address these challenges, it is crucial to prioritise the property rights of those affected in the coast region. This can be achieved through legal and administrative reforms that simplify the land tenure system and provide clear guidelines for securing property rights, particularly for imperiled marginalised groups. Additionally, public education and awareness campaigns can help individuals understand their rights and the procedures required to properly secure ownership of land, in order to protect rights to housing of those most likely to be affected.

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